Seize the opportunity: 

Seize the opportunity: 

Context:

• The Supreme Court has recently ordered the Centre to frame a scheme to establish special courts exclusively to try cases against politicians.
• The court has handed down many rulings that make legislators and holders of public office accountable for corruption.

What are factors to be taken into concern before setting up the special courts?

Special attention needs to be paid to three factors:

• One factor is the necessity of having prosecutors who are not attached to any political party.
• Solution: A directorate of prosecution, headed by a retired senior judge, who chooses prosecutors in turn vetted by the Chief Justice of the High Court, should be able to address this aspect.
• The second factor is that the main trial will be obstructed by interim orders.
• Experience has shown that political leaders are adept at finding legal counsel who file multifarious interim applications which stymie the trial; High Courts and the Supreme Court have sometimes failed to address these expeditiously.
• Solution: This needs to be avoided, and can be if Chief Justices have a superintending mission.
• Third concern expressed is to find funds to create the infrastructure and staffing for the special courts.
• Solution: For that, the Finance Minister can devise a ‘Swachh Politics Bharat Bond’.

What are the drawbacks of setting up a separate court for politicians?

• There is already a provision for special courts to try various classes of offences. Thus, creating a court for a class of people such as politicians is discriminatory.
• Special courts will breach the law of equality.
• While corruption charges against public servants are already being handled by special courts, it is an absurd question whether there can be special treatment for offences under the Indian Penal Code solely because the accused is a politician.
• There is not enough judges and finance even to process the routine criminal cases, thus,  setting up special courts may add on to the expenditure.

What is the way out apart from setting up the special courts?

• Article 14 permits classification based on criteria and nexus.
• MPs and MLAs form a distinct class and their early trial is a democratic must.
• They thus deserve to be given priority treatment regardless of special courts.
• The Constitution, under Article 224A, provides for the reappointment of retired High Court Judges as ad hoc judges.
• There is thus a large pool of judges of integrity and experience to choose from.

Article 224A:

• 224 A. Appointment of retired Judges at sittings of High Courts.- The Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
• Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.

Election commission and politicians involved in criminal cases:

• The existing law for politicians involved in criminal cases disqualifies them and sentence to a jail term of two years or more from contesting elections for six years from the date of release from prison.
• Election Commission favored a life term ban on MPs, MLAs from contesting election after being convicted in criminal cases.
• But Commission supports the plea to the extent that there should be a mechanism for decriminalisation of politics.