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The Supreme Court today asked the Central Bureau of Investigation and Enforcement Directorate to file an affidavit after analysing the cases pending against MPs and MLA's and give explanation on the same.

A Full Bench of Chief Justice NV Ramana, Justice DY Chandrachud and Justice Surya Kant noted, "We dont want to say anything against these agencies because this will demoralise them, we are aware of the situation, same lies with the courts."

Drawing the court's attention to Central Bureau of Investigation (CBI), Enforcement Directorate (ED), and National Investigation Agency (NIA) reports on the matter, Sr. Adv. Vinay Hansaria, Amicus Curae in the case remarked, "I want to mention that the reports are shocking."

Whereas, the bench while showing its anguish over the reports said, "Mr. Mehta I'm sorry to say that the report is very inconclusive, there are matters of 100s of crores, chargesheet has not been filed for 10s of years, only attaching property cannot do."

However, Solicitor General Tushar Mehta contended, "In ED, what happens is that the letter goes to other countries, several countries do not respond and some who reply, they reply late....we are not justifying delay..."

Justice Chandrachud telling about an instance showing pendency of cases said, "Few days back we had a Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act) case of 1995 blast, even till today, charges have not been framed. The accused was before us for a bail."

"Like us, investigating agencies are also suffering on infrastructure, manpower, staff issues, etc. Mr. Mehta you look into the suggestions," Justice Ramana added.

Sr. Adv. Vikas Singh appearing for the petitioner while pressing upon other prayers said, "My 2nd prayer is of banning them for life time, even an officer is barred from a job if he takes Rs. 10 bribe, then why is this for these Parliamentarians."

However, the bench after making note of all the arguments made, said that they will pass an order in this matter and the same can be seen when it is uploaded on the website.

By order dated Aug 11, 2021, the Court had laid down a format by which Registrar Generals of all High Courts were directed to furnish information under the following heads –

(i) Name of the Judge, (ii) Place of Posting, (iii) Date of Posting, (iv) No. of days/years in the given posting, (v) Number of cases disposed during the current posting, (vi) Number of pending cases before him/her, (vii) Stage of Pending Cases, (viii) Details of Orders/Judgments reserved, (ix) Whether Video conferencing facility is available.

Sr. Advocate and Amicus, Mr. Vijay Hansaria filed his 13^th report in the matter on Aug 9, 2021, highlighting various factors that require consideration in determining pendency of cases against MP/MLAs.

Issues flagged by the report were:

• Misuse of the Prosecutor’s power to withdraw cases under Section 321, CrPC.
• Continuity of tenure of Judicial Officers
• Jurisdiction of Special Court (M.P./M.L.A.) to try cases against legislators elected from other States
• Jurisdiction of Special Courts with respect to cases triable by Magistrates (V) Trial of cases where an M.P./M.L.A. is the complainant
• Safe and secure witness examination facility

By order dated August 10, Court had directed that no prosecution against a sitting or former MP/MLA shall be withdrawn without the leave of the High Court.

Recently, the Registrar General of Kerala High Court has filed an affidavit stating that – till Jul 31, 2021 there are a total of 547 criminal cases against MP/MLAs pending before various court in Kerala.

The Status Report submitted by Central Government says that there are 51 cases pending against Member of Parliament and 71 cases against Members of Legislative Assembly arising out of Prevention of Money Laundering, Act.

Whereas, as per the report, 121 cases are pending trial before the Special Courts, CBI, and
as many as 58 cases are punishable with life imprisonment.

Brief Background

In 2016, A petition was filed by Adv. Ashwini Kumar Upadhyay praying for directions to the Centre for taking necessary steps to debar candidates charged with criminal offences from contesting elections, forming political party or becoming office-bearers of any party.

The plea also sought directions to implement the Electoral Reforms proposed by the Election Commission, Law Commission, and National Commission to Review the Working of the Constitution.

Earlier, A report was submitted by the Amicus Curiae in the case which states that the number of criminal cases pending against sitting and former MPs and MLAs in December 2018 was 4,122. This has increased to 4,859 in September 2020, registering a jump of 17% in less than two years.

It had been also stated by the Amicus Curiae that the State governments are attempting to withdraw cases against their party MPs and MLAs, even those booked for serious offences.

Case Title: Ashwini Kumar Upadhyay v. Union of India

Edited by Shreya Agarwal