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Ashwini Kumar Upadhyay Vs. Union of India & Anr.
DATE OF JUDGEMENT9th November 2023
COURT Supreme Court of India
PETITIONERAshwini Kumar Upadhyay
RESPONDENTUnion of India and Anr
BENCHPamidighantam Sri Narasimha, Dhananjaya Y Chandrachud


This Writ Petition was brought under Article 32 of the Indian Constitution, seeking the Supreme Court’s jurisdiction on matters of public interest. Two separate reliefs are sought in this petition: one concerns the prompt resolution of criminal prosecutions against elected members of Parliament and Legislative Assemblies, and the other concerns the constitutionality of Section 8 of the Representation of Peoples Act, 1951. In its ruling, the Honorable Court has decided to handle the Writ Petition concerning the first prayer while developing certain rules for the timely resolution of criminal cases involving public officials. Section 8 of the Representation of Peoples Act, 1951, and its constitutionality are also scheduled for discussion.

The Court has used its earlier rulings, the State Government affidavits, and reports from High Courts to set the context for its decision. The Amicus Curiae, Shri Vijay Hansaria, a renowned Senior Advocate nominated by the Court, has provided an analysis of this data through written contributions. The Court has fully acknowledged and appreciated Shri Vijay Hansaria’s assistance and participation. Notices were sent to the State governments, High Courts, and the Union of India to commence the proceedings. As the matter developed, the Court decided it was appropriate to name Shri Vijay Hansaria as an Amicus Curiae to offer knowledge and direction.


  1. High Courts received directives from the Supreme Court on December 4, 2018.
  2. High Courts were tasked with assessing the circumstances and establishing sessions and magisterial courts within their jurisdiction as suitable and efficient.
  3. The order gave priority to cases involving the death or life sentence against members of legislative assemblies (MLAs) and members of parliament (MPs), including currently serving and past MPs.
  4. Cases involving sentences of five years or longer in jail were to be taken up after this highest priority.
  5. The order then dictated how all subsequent criminal matters involving MPs or MLAs who were in office should be handled, as well as how cases involving former MPs or MLAs should be handled.
  6. The directive made it clear that regular hearings should be held by the designated courts in order to expedite the disposal of the listed cases.


  1. The first issue is about the expedited disposition of criminal proceedings against elected members of Parliament and Legislative Assemblies.
  2.  The second issue is about the challenge to the constitutionality of Section 8 of the Representation of Peoples Act, 1951.
  3. The third issue is to give detailed information relevant to matters involving Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs), covering essential aspects such as their status, key dates in legal proceedings, present case status, and specific court and district details.


  1. The petitioner highlights how criminal matters involving elected officials must be resolved quickly and seeks quick decision-making.
  2. The Amicus contributed significantly to the creation of a thorough procedure that included rules for witness protection, designated court designation, and other procedural details.


  1. The respondent contends that the Chief Justices of the separate High Courts are asked to develop and submit an action plan to reduce the number of special courts.
  2. The Union and State Governments participate in the process by offering their thoughts on the suggested criteria and putting up a plan of action for the special courts’ rationalization.
  3. In accordance with the Court’s directives, the Union and State Governments offer information on infrastructure, witness protection, prosecution withdrawal, and judicial officer transfers.
  4. Status reports are submitted, describing the progress accomplished in accordance with the Court’s directions.
  5. As of December 2018, December 2021, and November 2022, the Governments give a thorough overview of the various States’ and Union Territories’ outstanding cases against MPs and MLAs.


A set of detailed recommendations was developed by the designated legal expert (Amicus) in response to the difficulties that arise in criminal proceedings involving Members of Parliament (MPs) and Members of Legislative Assembly (MLAs). The Court acknowledged the guidelines on September 10, 2020. These instructions cover the creation of Special Courts to handle cases involving politicians, both past and present, in each district. According to the regulation, High Courts should assign these matters to the proper Sessions Courts and Magisterial Courts in four weeks, and State Governments should notify them in the same amount of time.

The protocol places a strong emphasis on the order of trials according to the seriousness of the crimes committed, giving cases carrying a sentence of at least seven years’ imprisonment or the death penalty priority. Trials involving sitting politicians receive extra attention. Other steps include quick transfer of case records, forensic laboratories expediting reports, and state governments appointing Special Public Prosecutors. Adjournments are not recommended unless absolutely necessary, and law enforcement officers are assigned tight duties to guarantee the presence of witnesses and accused parties.

Additionally, video conferencing equipment is recommended for proceedings. The guidelines also cover issues involving stay orders, highlighting the need for prompt settlements and offering alternative options for urgent listing. Acknowledging the susceptibility of witnesses in cases concerning lawmakers, the Court, following the precedent established in the Mahender Chawla v. Union of India decision, emphasizes the importance of witness protection, as embodied in the “Witness Protection Scheme, 2018.” In order to overcome logistical obstacles, it also suggests using video conferencing facilities to speed case hearings, even in the midst of the Covid-19 pandemic.


The Union of India, State Governments, and High Courts were notified by the Supreme Court to begin proceedings in response to a Writ Petition. Famous Senior Advocate Shri Vijay Hansaria was named an Amicus Curiae, and the Court valued his insightful input. Referring to the Public Interest Foundation case, the Court emphasized the need to conclude trials of elected officials within a year of the charges being filed, underscoring the urgency of doing so. The Court first considered creating special courts, but after weighing the costs and policy ramifications, it agreed to designate certain courts in each district for proceedings that are given priority.

Witness protection, High Court oversight through Suo Moto registration of cases captioned “In Re: Special Courts for MPs/MLAs,” and the designation of a Senior Advocate as Amicus Curiae are three of the recommendations. The State assures the necessary information for court proceedings through the Advocate General or Additional Advocate General and a senior Police Officer. High Courts give the appropriate instructions for prompt case resolution, while Special Courts submit monthly status updates. In September 2020, more directives were sent out, requesting affidavits containing information on witness protection, court officer transfers, prosecution withdrawal orders, and infrastructure facilities.

The cases against MPs and MLAs that were still outstanding as of December 2018, December 2021, and November 2022 in every State and Union Territory were listed in detail. The Public Prosecutor or Advocate General may be involved in orders issued by the High Courts for prompt resolution. The Sessions Judge and Principal District Judge may assign cases according to need, providing reports as needed. The Court’s directions essentially seek to expedite the adjudication of lawsuits against elected officials by utilizing a methodical methodology that involves multiple parties and regular evaluations.


In conclusion, the Court chose to consult the Chief Justices of the respective High Courts for their opinions and an action plan for the rationalization of special courts following hearings from the Union and State Governments. The Court stressed the significance of this order and instructed Chief Justices to create and submit an action plan that takes into account a number of pertinent factors, including the overall number of pending cases, the number of special courts that must be established, the availability of courts and judges, the tenure of judges, the anticipated time frame for case disposal, and the sufficiency of the infrastructure. Chief Justices were also asked to offer additional recommendations for the quick resolution of ongoing criminal charges against lawmakers, as well as to remark on recommendations made by the learned amicus curiae.

The Court further urged Chief Justices to list pending criminal cases involving sitting/former legislators promptly, especially those with granted stays, before an appropriate bench. It stressed how important it is to make decisions about whether to extend stays in accordance with accepted norms. Acknowledging the diverse factors influencing case disposal and the dissimilarity across states, the Court decided not to impose a uniform guideline but entrusted High Courts with devising methods for effective monitoring of cases.

Chief Justices were specifically instructed to register a suo-motu case titled “In Re: designated courts for MPs/MLAs” in order to monitor the case’s early disposal. They were also instructed to create a Special Bench for the same case, prioritize cases according to severity, avoid needless adjournments, ensure that designated courts have the necessary infrastructure, and post district-specific information on High Court websites. The Court resolved the writ petition concerning the prompt resolution of criminal prosecutions against elected officials, deferring to subsequent sessions the question of whether Section 8 of the Representation of Peoples Act, 1951 is constitutional.


  1. SCC Online
  2. https://indiankanoon.org/doc/185643528/ 

This Article is written by Bokka Twinkle student of Damodaram Sanjivayya National Law University (DSNLU) working as an intern at Legal Vidhiya.

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.


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