Legal Eye Comment

What is special about special courts?

The legislature has introduced special courts on many occasions through various laws, usually with the intention to enable quick and efficient disposal of cases. But an examination of the laws that require setting up of special courts compared to the actual numbers that have been set up reveals the extent to which reality and intent are mismatched.

In a short study by Vidhi Centre for Legal Policy, 764 Central laws enacted and amended between 1950 and 2015, excluding laws that were repealed in this period or that may have been amended after 2015, were examined to determine the frequency of their occurrence. We looked in these statutes for only mentions of ‘special’ or ‘designated’ courts or judges, that is, courts or judges established to ensure effective trial and that have powers of district or sessions courts. Forums like quasi-judicial bodies, tribunals, and commissions were excluded. It was found that only three statutes provided for special courts between 1950 and 1981, whereas between 1982 and 2015, 25 statutes mandated the establishment of such courts.

What are the reasons for this drastic change in legislative policy? The five-year period from 1982 to 1987 witnessed an unexplained spurt in the number of laws creating special courts. A similar increase was seen between 2012 and 2015. Several such courts were created in response to specific incidents. For instance, the 1992 securities scam led to the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. The largest number of special/designated courts were created between 1982 and 1992. However, there is no categorical rationale for these developments.

Setting up and designating special courts

Laws interchangeably use the terms ‘set up’ or ‘designate’ with respect to special courts. Setting up a special court may require new infrastructure and facilities, whereas a designated court merely adds additional responsibilities to an existing court. In our study, of the 28 statutes enacted between 1950 and 2015, three provided for both, 15 ‘set up’ special courts, and 10 empowered the competent authority to designate a court. However, implementation of the law does not necessarily follow this distinction between setting up and designation. Despite providing for ‘setting up’ special courts, State governments have designated courts under most of the legislations. Out of the 15 statutes which specifically provided for ‘setting up’ of special courts, only one has been enabled with them by few States.

Based on the nature of legislation and primary subject matter dealt with, we divided the statutes into five clusters of economic offences, regulatory offences, law and order, social justice, and national security. The objective of special courts has been unclear. It is not very revealing whether specific legislations which provide for special courts necessarily intend quick disposal of cases. The statutes which have been recently enacted, mostly those falling under the cluster of economic offences, have provisions for special courts although older legislation, like the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, or the Narcotic Drugs and Psychotropic Substances Act, 1985, have a huge backlog of cases waiting to be cleared.

We studied three statutes from three clusters, based on the availability of data, to observe the nature and frequency of institution of ‘special courts’: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (POA), 1989; National Investigation Agency Act, 2008 (NIA Act); Prevention of Corruption Act, 1988 (POCA).

The pendency rates in courts for cases filed under POA are huge. While the national average is 84.1 per cent, States like Maharashtra and West Bengal have pegged their respective pendency rates well above the average. The number of cases being registered from these States has also been significant. However, the absence of exclusive courts in these States has been stark. On the contrary, there have been several special courts and fast track courts being set up under POCA although the total number of cases registered is nearly 1/10th of cases under POA. Under the NIA Act, in spite of mandating special courts, all the courts set up have been designated courts.

No exclusivity

From the available data, it is fairly conclusive that there is no exclusivity in ‘special courts’. Laws enacted in the last three decades have considered special courts as quick remedy for questions of delays in trial. However, a striking absence of number of ‘special courts’ set up provides a glaring contrast to such an objective. Notably, in most instances where existing courts are designated as special courts, the original intent of speedy disposal of cases seems to have been defeated. Questions of pendency have often surfaced, thereby rendering the point of efficiency of the institution moot. Absence of rationale in both selective insertion of provision for special courts and actual setting up of courts appears to have rendered the notion of special court superfluous.

Poor quality or complete absence of data remains a major concern for this study. Official websites (for instance, nodal ministries) did not always have the latest updated versions of statutes. The status of these laws is difficult to assess as information about the number of courts set up or designated under various laws is not always available.

However, this study does reveal much scope to expand the areas of enquiry for research. For instance, what is so special about special courts if they only provide an additional forum to dispose cases? Is this purpose still served if existing courts are merely designated as special courts without any new infrastructure being created? Can inferences be drawn about the state of the judicial system where special courts have been introduced by way of amendments to parent laws? Is the legislature monitoring the health of special courts and examining whether their original stated purpose continues to be served? These are questions which future studies could explore.

Sakshi is a Research Fellow at the Vidhi Centre for Legal Policy, New Delhi. Views are personal.


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Printable version | Nov 28, 2021 10:45:38 AM | https://www.thehindu.com/opinion/op-ed/What-is-special-about-special-courts/article16978952.ece

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