The Supreme Court on Tuesday modified its earlier orders and said its permission shall not be required for transfer of judicial officers of special courts dealing with cases pertaining to lawmakers subject to some riders, including that the high court concerned may do so after obtaining the approval of its chief justice on the administrative side.
The apex court modified its August 10, 2021 and October 10 last year orders.
In its August 2021 order, the top court had said all judicial officers presiding over special courts or CBI courts involving prosecution of MPs or MLAs shall continue in their present posts until further orders.
Later in October last year, the apex court had modified the order and directed that henceforth it will not be necessary for the high courts to seek its prior permission for transfer of judicial officers where the transfers are made in the normal course consequent upon the end of their tenure in a particular posting.
“However, if a transfer is necessitated for any other reason, otherwise than in the normal course of transfers and postings pursuant to the policy of the high court, the prior permission of this court shall be deemed to be necessary in terms of the order dated August 10, 2021,” the apex court had said in its October 2022 order.
On Tuesday, the matter came up for hearing before a bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra.
It was informed that several high courts have filed applications seeking permission to transfer judicial officers presiding over special courts for MPs and MLAs.
“In order to ensure that the administrative work of the high courts does not suffer…. we modify the orders dated August 10, 2021 and October 10, 2022 in the following terms: the permission of this court shall not be required for transfer of presiding officers of special courts dealing with cases pertaining to MPs/MLAs by the high courts subject to due observance of the following conditions…,” the bench said.
It said the high court concerned may transfer the presiding officers of these special courts after obtaining the approval of its chief justice on the administrative side.
The bench said while granting permission, the chief justice of the high court shall ensure that some other judicial officer is posted there so the special court is not kept vacant.
“The transfer shall be permitted subject to the condition that there is no case pending for final judgement after the conclusion of the arguments and the trial,” it said, while allowing the applications filed by the high courts.
The bench was hearing a 2016 PIL filed by advocate Ashwini Kumar Upadhyay which, besides seeking a life ban on politicians from contesting elections upon conviction in criminal cases, sought expeditious trial of accused lawmakers and setting up of special courts for the purpose across the country.
Upadhyay told the bench that his main prayer is for a life ban on contesting elections if someone is convicted for more than two years.
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“That is a matter of legislative policy. How can we say there shall be a life ban when the Parliament says six years,” the bench observed, adding, “We can’t say it be substituted by life ban”.
The apex court said it would hear the matter after conclusion of hearing of some other pleas that are listed before a constitution bench, which is scheduled to commence the hearing from Wednesday.
The top court has been passing a slew of directions from time-to-time on Upadhyay’s plea for ensuring expeditious trial of cases against lawmakers and speedy investigation by the CBI and other agencies.
