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Understanding Special Courts

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March 26, 2018

What is the issue?

  • It is assumed that special courts are a panacea for judicial efficiency.
  • But the system needs a reassessment to understand its actual working efficacy, for it to be more rational in number and functioning.

What are special courts?

  • Special courts have existed in the subordinate judiciary since before Independence.
  • A special court is one which is to deal with special types of cases under a shortened and simplified procedure.
  • They are established under a statute meant to address specific disputes falling within that statute.
  • Over 25 special courts were set up between 1950 and 2015 through various Central and State legislations.

What are fast track courts?

  • Fast track courts on the other hand were the result of recommendations made by the 11th Finance Commission.
  • 11th FC advised the creation of 1,734 such courts to deal with the judicial backlog.
  • They were actualised though an executive scheme as opposed to a statute of the legislature in case of special courts.
  • Moreover these are meant to be set up by the State governments in consultation with the respective high courts.

What are the concerns with special courts?

  • Understanding - Special courts are a significant means of addressing the specificities of certain statutes and judicial backlog.
  • However, there is little if any evaluation of how this system works and a vacuum exists in research and analysis of special courts.
  • This has led to inconsistencies in legislation and operation, which is more pronounced by the Parliament.
  • Central legislations from Special Criminal Courts (Jurisdiction) Act, 1950 to the Prevention of Money Laundering (Amendment) Act, 2012 prove this point.
  • Ambiguities - The Special Courts case clearly uses the phrase “established under statute”, meaning the establishment of a new court.
  • However statutes use terms like “constitute”, “create”, “designate”, “notify”, “appoint”, etc leading to ambiguities of its stature.
  • The anomaly is that these terms have not been defined or procedurally explained.
  • Moreover, certain legislations state that the government “may” set up special courts, while other say the government “shall”.
  • However, going by the definition, the answer as to whether a law requires a special court or not should only be either yes or no.
  • Leaving options such as “may”, add to the ambiguities.
  • Clarity - For States and high courts, this leads to uncertainties in operation and setting up such courts.
  • There is lack of clarity in specifics like:
  1. Do they require new buildings?
  2. Should more judicial officers be hired?
  3. If a judge is designated under a special statute, should those matters be added to or replace her roster?
  • This also creates confusion with respect to appointments, budgetary allocation, infrastructure, and listing practices.
  • Purpose - There are more special courts under the Prevention of Corruption Act, 1988 than SC/ST (Prevention of Atrocities) Act, 1989.
  • However the former is said to have a tenth of the number of registered cases as the latter (2015).
  • This points to the unclear legislative intent for creating special courts.

What is the way forward?

  • The SC should address the constitutional status, and analyse policy questions pertaining to the need and efficiency of special courts.  
  • There are over 2.8 crore cases in the subordinate judiciary, which is the highest out of the three tiers of the judiciary.
  • The working of special courts has to be studied critically.
  • Parameters such as the frequency and number of effective hearings and calculating the number of pending cases need to be developed.
  • These are essential to check the growing number of special courts being established without definite purposes.
  • In all, it is important to determine whether or not this special courts system is in fact helpful in addressing the judicial backlog.


Source: The Hindu

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