SC Removes Approval Requirement for Transfer of Special Court Presiding Officers in MP-MLA Cases

The Supreme Court on Tuesday lifted the requirement for its approval in the transfer of presiding officers of special courts handling cases involving Members of Parliament (MPs) and Members of Legislative Assembly (MLAs).

A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and Manoj Misra, made this decision after being informed by Senior Advocate Vijay Hansaria about requests for the transfer of judicial officers.

It thus ordered,

“By order dated August 10, 2021, we directed that presiding officers of special courts shall not be transferred without permission of this court. High Courts have filed application for transfers. In order that administrative work of High Court does not suffer, we modify order of this court in the following terms: permission of this court shall not be required for transfer of presiding officers of special courts by High Courts.”

The Apex Court directed that presiding officers of special courts handling cases involving Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) can now be transferred with the permission of the Chief Justice of the respective High Court on the administrative side.

“Chief Justice should ensure some other judicial officer is posted in the vacancy that will be caused and to see that transfer shall be permitted if there are no orders pending after conclusion of final arguments,” the bench directed.

The bench also allowed applications filed by the Allahabad High Court and the Madras High Court seeking permission to transfer judicial officers.

The Bench was hearing a plea seeking a lifetime ban on convicted politicians, including sitting lawmakers, from contesting elections as opposed to the current six-year ban from the date of release after undergoing sentence of two years or more under the prevailing law.

The public interest litigation (PIL) was filed by BJP leader and Advocate Ashwini Upadhyay, who also sought the establishment of special courts to handle cases involving MPs and MLAs.

Additionally, the PIL requested a prohibition on convicts from forming political parties or holding positions in political parties. The Central government opposed the plea, arguing that there is no distinction between a public servant and an elected representative. It highlighted the absence of specific service conditions for elected representatives. The Election Commission of India supported the prayer for a lifetime ban on convicted lawmakers from contesting elections.

Previously, the Supreme Court had directed trial courts handling criminal cases involving former and current MPs and MLAs to consider providing witness protection, even without a formal application from the witnesses. Amicus Curiae Vijay Hansaria informed the apex court that there was a lack of consistency in the establishment of special courts for MPs and MLAs across the country.