Special Courts
Chapter Fifty-Five
Syllabus topic 3, "Exceptional Legislation"
Pages 244 to 248 of 657
In one line
A special court is an ordinary criminal court given a special jurisdiction, a special procedure and a special appeal, so that a class of case is tried differently.
In the wording a student can write in an exam: a special court is a court constituted or designated under a statute to try a defined class of offences, with a jurisdiction, procedure and appellate route different from those of the ordinary criminal courts. In India such courts are almost always presided over by a serving judicial officer of the rank of a Sessions Judge; the modern practice, under the National Investigation Agency Act 2008, is to designate an existing Court of Session as a Special Court rather than to constitute a new court.
Why a special court at all
Four reasons are given, and they should be separated because they are not equally good.
Speed. A court dealing only with one class of case is expected to dispose of it faster. This is the reason most often given and the one the record supports least.
Expertise. A judge who tries only terrorism cases understands the evidence, the technology and the organisations.
Security. A trial that may attract violence needs a court that can sit safely, in camera if necessary, and can protect witnesses.
Procedure. The special procedural provisions need a court that operates them, and it is convenient to attach them to a designated forum.
The three generations
TADA: Designated Courts, sections 9 to 14
TADA constituted Designated Courts, with provisions for their constitution, place of sitting, jurisdiction, power with respect to other offences, Public Prosecutors, and procedure and powers. Section 14 conferred wide procedural powers, including, by sub-section (5), power notwithstanding the Code, if the court thought fit and for reasons to be recorded, to proceed with the trial in the absence of the accused or his pleader and to record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.
Section 16 provided for proceedings to be held in camera. Its validity was argued in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, where the Court noted the Full Bench decision of the Punjab and Haryana High Court striking it down as offending article 14, and the reliance placed by the Additional Solicitor General on the observation in A.K. Roy v. Union of India, AIR 1982 SC 710, that the right to a public trial is not one of the guaranteed rights under the Indian Constitution as it is under the Sixth Amendment of the American Constitution.
Section 19 provided for appeal, and it is the feature most criticised: the appeal lay to the Supreme Court, so the High Court was bypassed altogether.
Special Courts
POTA: Special Courts, sections 23 to 30
POTA replaced Designated Courts with Special Courts, retained much of the machinery, and restored the appeal to the High Court.
The National Investigation Agency Act 2008: Special Courts, sections 11 to 22
This is the scheme in force, and it is the one to state.
Section 11. The Central Government shall, in consultation with the Chief Justice of the High Court, by notification, designate one or more Courts of Session as Special Court for the trial of Scheduled Offences, for such area or areas or for such case or class or group of cases as may be specified. The Explanation defines High Court as the High Court of the State in which the Court of Session to be designated is functioning.
Section 13. Notwithstanding anything in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed. Sub-section (2) provides for transfer where, having regard to the exigencies of the situation prevailing in a State, it is not possible to have a fair, impartial or speedy trial, or it is not feasible to have the trial without occasioning a breach of the peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge, or it is not otherwise in the interests of justice.
Section 16. A Special Court may take cognizance of an offence without the accused being committed to it for trial, upon a complaint of facts constituting the offence or upon a police report of such facts.
Section 21. An appeal lies from any judgment, sentence or order of a Special Court, not being an interlocutory order, to the High Court, both on facts and on law. It is to be heard by a bench of two judges and, as far as possible, disposed of within three months of admission. Except as provided, no appeal or revision lies to any court from any judgment, sentence or order, including an interlocutory order, of a Special Court.
Section 22. A State Government may likewise designate one or more Courts of Session as Special Courts for the trial of offences under any or all the enactments in the Schedule, with the modifications the section sets out.
The National Investigation Agency Act 2008, in outline
The Special Court a modern terrorism case is tried in is constituted under this Act, so a complete answer on special courts must name it.
Chapter I, sections 1 and 2. Short title, extent and application, and the definitions, including Scheduled Offence, meaning an offence under an enactment listed in the Schedule, which includes the Unlawful Activities (Prevention) Act 1967.
Special Courts
Chapter II, sections 3 to 5. The constitution of the National Investigation Agency; its superintendence, which vests in the Central Government; and the manner of its constitution and the conditions of service of its members.
Chapter III, sections 6 to 10: how a case reaches the Agency. Section 6 is the mechanism: on receipt of information about a Scheduled Offence the officer in charge of the police station forwards a report to the State Government, which forwards it to the Central Government, which determines within a stated period whether the offence is a Scheduled Offence and a fit case to be investigated by the Agency, and may direct it to do so. Section 7 permits the Agency to transfer the investigation back to the State Government. Section 8 gives it power to investigate connected offences. Section 9 requires the State Government to extend assistance. Section 10 preserves the State's power to investigate a Scheduled Offence until the Central Government directs otherwise.
Chapter IV, sections 11 to 22: the Special Courts. The Central Government may constitute one or more Special Courts for the trial of Scheduled Offences, and a State Government may do likewise for offences investigated by the State; the Court is presided over by a judge appointed on the recommendation of the Chief Justice of the High Court; the sections provide for the place of sitting, jurisdiction, the power to try other offences, the protection of witnesses, the power to hold proceedings in camera and to withhold the identity of a witness, the precedence of the trial, and an appeal to the High Court to be heard by a Bench of two judges.
Chapter V, sections 23 to 26. The power of the High Courts to make rules, the power to remove difficulties, the rule making power and the laying of rules.
Why the appeal matters. Section 21 gives an appeal to a Division Bench of the High Court, on facts and on law, which is the remedy TADA withheld and POTA restored, and it is the strongest single answer to the objection in [Special Courts] that a special court removes the ordinary appellate structure.
The three features that make the modern scheme defensible
Worth stating, because they are the answer to the standard criticism.
The court is an existing Court of Session, designated. It is not a body created for the purpose, and its presiding officer is a serving judicial officer with security of tenure.
The Chief Justice of the High Court is consulted. The executive does not choose the court alone.
The appeal lies to the High Court, on facts and on law, to a bench of two judges. That restores the ordinary appellate structure which TADA had bypassed.
Special Courts
The objections that remain
Selection of cases. Which cases go to a Special Court is decided by the executive through the choice of statute and the reference to the Agency, so the accused's forum, procedure and bail regime are determined before any judge is involved.
Bar on revision. Section 21(3) excludes revision and appeal against interlocutory orders, which can leave an accused without a remedy against an order that matters.
Procedure. The court is ordinary; the procedure it applies is not, and the objections to that procedure are those in the four preceding chapters.
Special court compared with tribunal
MU pairs the two in a single note, and the pairing is a trap, because they are quite different institutions.
| Special court | Tribunal | |
|---|---|---|
| Constituted under | a criminal statute | article 323A or 323B, or an ordinary statute |
| Decides | criminal guilt | disputes, usually administrative or civil |
| Presided over by | a serving judicial officer, ordinarily a Sessions Judge | a mix of judicial and administrative members |
| Applies | the criminal procedure law with modifications | its own procedure, often summary |
| Appeal | to the High Court under the NIA Act; to the Supreme Court under TADA | varies, and the High Court's article 226 jurisdiction cannot be excluded |
| Constitutional basis | none specific; an ordinary law creating a court | article 323A or 323B, where those apply |
The next chapter takes tribunals, and [Tribunals After L. Chandra Kumar] takes the constitutional limit on them.
A worked example
An offence under the Unlawful Activities (Prevention) Act 1967 is committed in Pune and investigated by the National Investigation Agency.
Which court tries it? The Special Court within whose local jurisdiction it was committed, under section 13(1) of the NIA Act, being a Court of Session designated under section 11 in consultation with the Chief Justice of the Bombay High Court.
Can the trial be moved? Yes, under section 13(2), if a fair, impartial or speedy trial is not possible, or if there is grave risk to the accused, the witnesses, the Public Prosecutor or a judge, or if it is otherwise not in the interests of justice.
How does the case reach the court? The Special Court may take cognizance on a police report without committal, under section 16(1).
Where does an appeal go? To the High Court, on facts and on law, before a bench of two judges, under section 21, to be disposed of as far as possible within three months of admission.
And against an interlocutory order? Section 21(3) excludes appeal and revision, which is the objection noted above.
What it does NOT mean
A special court is not an executive tribunal. It is a criminal court presided over by a judicial officer.
Special Courts
It is not a new court. Under the modern scheme an existing Court of Session is designated.
Its existence does not make the procedure fair. The procedural objections are separate and are dealt with in the preceding chapters.
Designated Courts under TADA no longer exist. TADA lapsed in 1995, and an answer must be written on the NIA Act scheme.
Quick revision
- TADA ss.9 to 14: Designated Courts; s.14(5) allowed trial in the absence of the accused or his pleader for recorded reasons, subject to recall for cross-examination; s.16 in camera; s.19 appeal direct to the Supreme Court.
- POTA ss.23 to 30: Special Courts, appeal restored to the High Court.
- NIA Act 2008: s.11 designation of a Court of Session in consultation with the Chief Justice of the High Court; s.13 exclusive local jurisdiction with a transfer power; s.16 cognizance without committal; s.21 appeal to the High Court on facts and law before two judges, within three months as far as possible, with no other appeal or revision; s.22 State designation.
- Defensible because the court is an existing Court of Session, the Chief Justice is consulted, and the High Court appeal is restored.
- Objections that remain: executive selection of cases, the bar on revision, and the procedure applied.
Test yourself
1. Under which statute are the courts that try terrorist offences today constituted? The National Investigation Agency Act 2008, which designates existing Courts of Session as Special Courts.
2. Who is consulted before a Special Court is designated? The Chief Justice of the High Court of the State in which the Court of Session is functioning.
3. Where does an appeal from a Special Court lie under the NIA Act, and how is it heard? To the High Court, on facts and on law, before a bench of two judges, to be disposed of as far as possible within three months of admission.
4. What did TADA's appeal provision do that the modern scheme does not? It took the appeal directly to the Supreme Court, bypassing the High Court.
5. Give two features that make the modern scheme more defensible than TADA's. The court is an existing Court of Session presided over by a serving judicial officer rather than a body created for the purpose; the Chief Justice of the High Court is consulted in the designation; and the appeal lies to the High Court on facts and law.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.