The need for ‘special’ attention

The need for ‘special’ attention

Context

Special courts are not a panacea for judicial efficiency

What has happened?

Last December, the Supreme Court greenlit the Centre’s proposal to set up 12 fast-track courts to adjudicate and speedily dispose of 1,581 cases against Members of Parliament and Legislative Assemblies. Apart from uncertainties about the adequacy of such a measure, a more glaring issue is that the order conflates two distinct judicial features by using them interchangeably: special courts and fast-track courts.

Special Courts

• A Court which was established under a statute, to deal with special types of cases under a shortened and simplified procedure (Acc. To The Special Courts Bill, 1978(Special Courts Case))
• Over 25 special courts were set up between 1950 and 2015 through various Central and State legislations

Fast-track Courts

• Fast track courts were the result of recommendations made by the 11th Finance Commission which advised the creation of 1,734 such courts to deal with the judicial backlog
• They were actualized though an executive scheme (as opposed to a statute of the legislature) and were meant to be set up by State governments in consultation with the respective high courts
• Though meant to be wound up in 2005, the scheme was extended till 2011
• Since then, six such courts have been set up in Delhi to take up rape cases

The issue: Not enough research and analysis with respect to special courts has led to inconsistencies in legislation and operation

Ambiguities in operation

• Different statutes use variety of phrases regarding creation or establishment of Special Courts
• For States and high courts, this leads to ambiguities in operation in setting up such courts.
• Example: two statutes use the term “establish”, while four use “constitute”, two use “create”, eight use “designate”, two use “notify”, and one uses “appoint”

Compulsory or not

• 13 pieces of legislation state that the government “may” set up special courts, while 15 say the government “shall”
• The answer as to whether a law requires a special court or not is a binary: yes or no
• In such a situation, leaving options such as “may”, add to the ambiguities

Unclear purpose

If a special court is meant to address the volume of cases under a statute, then why use “may” as the enabling provision instead of “shall”?

Example:there seem to be more special courts under the Prevention of Corruption Act, 1988 as compared to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 despite data showing the former having a tenth of the number of registered cases as the latter (2015)

What needs to be done?

Parameters such as the frequency and number of effective hearings and calculating the number of pending cases need to be developed to study the workings of special courts

Conclusion

Finally, it is important to ask questions and determine whether or not this special courts system is in fact helpful in addressing the judicial backlog.