Uttar Pradesh: “Indian Constitution and laws expire at the border of Uttar Pradesh, as soon as the Delhi border ends,” a designated judge in an MP/MLA court in Uttar Pradesh said about grant of protection to witnesses in cases involving past and present lawmakers.
“It’s like when people wear the helmet in Delhi, but remove it as soon as they reach Ghaziabad in UP or Haryana,” the judge told ThePrint.
While the law provides for disqualification of convicted MPs and MLAs, the trials are often marked by delays, intimidation or allurement of witnesses and inconclusiveness despite decades having gone by.
Cases against slain gangster-politician Atiq Ahmed and his brother Ashfaq saw a similar trajectory. While all those cases are likely to be abated, the dramatic turn of events has brought back focus on the courts that deal with such high-profile accused.
Acting on the Supreme Court’s orders in 2018, special courts for dealing with such cases were set up and designated across the country. Uttar Pradesh has such courts in almost all districts.
According to a report submitted in the Supreme Court in November, there are 1,377 pending cases against sitting and former MPs and MLAs in UP, up from 992 in December 2018 and 1,339 in December 2021. Until November last year, the state had 719 cases (52 per cent of the total pending cases) that were older than five years.
ThePrint visited MP/MLA courts in Uttar Pradesh to find that while older cases are now being taken up, these courts still struggle with delays, lack of adequate protection for witnesses and infrastructural shortcomings. The Supreme Court as well as experts have often highlighted the need for protection of witnesses, especially in such cases.
But, judges concede that the law on witness protection mostly “stays in the law books”, and that there is a need for a more robust system to shield them.
Gangsters of Ghazipur
One such MP/MLA court in Ghazipur — the turf of gangster-turned-politician Mukhtar Ansari — is set to pronounce the judgment in a 2007 case filed against him under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Housed on the ground floor of the ‘kacheri’ complex, right next to the men’s washroom, it looks like any other courtroom, except for the heavy presence of police personnel inside.
Currently, this court has eight cases of sitting and former MPs and MLAs — three cases against Mukhtar Ansari, one against BSP MP Afzal Ansari, one against mafia don and former MLC Brijesh Singh, one against mafia don Tribhuvan Singh, and two against Vijay Kumar.
Each of these cases tells a story of longstanding delays, with witnesses turning hostile over the years. For instance, the case against Mukhtar Ansari was filed in 2007, while the trial has been pending since 2012. Judgment is now scheduled for 29 April.
The case was filed under the Uttar Pradesh Gangsters act on the basis of his alleged involvement in coal tycoon and Vishwa Hindu Parishad office-bearer Nand Kishore Rungta’s kidnapping and murder in 1996 and BJP MLA Krishnanand Rai’s murder in 2005.
Since then, Ansari couldn’t be pinned down in the Rungta case. He was also acquitted in the Krishnanand Rai case in July 2019 by a special CBI court, and an appeal contesting it is pending in the Delhi High Court. The other two cases against him were filed in 2009 (attempted murder), and 2010 (Gangsters Act). Trials have been pending in these cases since 2010 and 2012.
Brijesh Singh, a rival of the Ansaris, is on trial for over two decades for carrying out an elaborate hit on Mukhtar in 2001 — in what is known as the Usar Chatti case. It is also being heard by the court in Ghazipur. As per court orders, this is the 19th case against him.
Arrested from Bhubaneswar in December 2009, Singh has been in jail since but the charges were framed a decade after the FIR, in 2013. By August last year, the trial court recorded the evidence of only one prosecution witness.
Looking into whether Singh “should suffer for the laxity of the prosecution”, the Allahabad High Court granted him bail in August. In the meantime, his nephew Sushil is now a BJP MLA and his wife Annapurna is an independent MLC.
‘Mukhtar Ansari helps the poor’
Witnesses turning hostile and not supporting the prosecution case is a primary concern for courts and other stakeholders involved in the judicial processes involving MPs and MLAs. Reasons can be several, including threats or monetary allurements.
However, the impact of hostile witnesses remains the same — a dramatic weakening of the prosecution case. While acquitting Ansari in the Krishnanand Rai case, the CBI court said that it could have ended differently if the witnesses were protected and that they did not turn hostile. The case had “suffered” as several crucial witnesses turned hostile, it asserted.
In the Gangster Act case against Ansari which is scheduled for judgment on 29 April, at least one witness turned hostile. The witness, Mir Hassan, was the complainant in the attempted murder case. As per the court documents seen by ThePrint, Hasan was declared hostile after he told the court that “Mukhtar Ansari helps the poor”. Although, he added that he “can’t recall the names of any poor person who he has helped”.
While the FIR claims Ansari along with Sonu Yadav tried to murder Hassan in 2009, the witness accused the police of taking his signatures on blank papers and refused to have filed any such complaint. He was also declared hostile in the attempted murder trial that is pending in the Ghazipur court.
The Supreme Court’s orders for designating special courts for hearing cases against MPs and MLAs came on a PIL filed by BJP leader and advocate Ashwini Kumar Upadhyay. During the hearing, it appointed an amicus curiae, who, in November 2020, highlighted concerns related to protection of witnesses, saying that “considering the sensitivity of these cases, most witnesses are unwilling to appear before the respective courts”.
The top court then ordered that the Witness Protection Scheme, 2018, should be “strictly enforced” by the central and state governments. Trial courts may consider granting protection to witnesses under the scheme without any specific application made by them, it said.
‘Constitution for discussion in seminars’
The Witness Protection Scheme provides for security based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at their residence, and usage of specially designed courtrooms.
In 2018, the Supreme Court endorsed this scheme, while dealing with four petitions alleging that several witnesses were attacked, murdered or threatened in the rape cases lodged against self-styled godman Asaram.
However, a sitting judge in UP feels that this protection for witnesses often does not lead to results on the ground. “All of that protection stays in the law books…The Constitution is for discussions in the drawing rooms and in seminars. It has no role in the field.”
He explained that it is the duty of the State and the prosecution to produce the witnesses. “However, if the State and the prosecution help the accused behind the scenes, then it becomes a problem…The courts order the witness to be produced on a particular date. But whether the witness should be produced, or not produced, or scare him — all of this happens behind the scenes, and the government also has a particular role in this.”
Another MP/MLA court judge feels that the provisions for witness protection needs to be strengthened. “On ground, witnesses only get protection up until examination in court…However, in some cases which involve ministers or people like Atiq Ahmed, witnesses should be granted lifelong protection,” he told ThePrint.
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‘Everybody has a free hand’
Prayagraj was the first district in Uttar Pradesh to get a special MP/MLA court. Currently, the courtroom is at the far end of the first floor of the sessions court building, with around seven to eight police personnel stationed outside the courtroom.
In March, this court sentenced Atiq Ahmed to life imprisonment in the 2006 kidnapping case of lawyer Umesh Pal, the main witness in the killing of Bahujan Samaj Party (BSP) MLA Raju Pal. After the lawyer was shot dead in February, Atiq was made an accused in the latest case as well.
According to district government counsel (criminal) Sushil Kumar Vaish, there were 14 cases pending against Atiq and Ashraf in the Prayagraj court. After Atiq and Ashraf’s killing, the cases against former MLA Vijay Mishra, former UP minister Rakesh Dhar Tripathi and MLA Vijama Yadav are pending in the Prayagraj court.
Vaish told ThePrint that the setting up of special courts has “significantly contributed” to clearing the backlog of cases. “Earlier they used to gather dust in some corners. Neither did the legislators want that these cases should be decided, nor did the courts want to get into the controversy.”
“If the legislator belonged to the party in power, the system worked accordingly, but in this regime, everybody has a free hand,” he asserted, adding that courts are handing down punishments to MPs and MLAs from the ruling party, too.
As an example, Vaish mentioned the conviction of Cabinet Minister Nand Gopal Gupta ‘Nandi’ who was handed one-year imprisonment in a nine-year-old assault case, in January. The Allahabad High Court, however, in March suspended the sentence.
Ghazipur district government counsel (criminal) Neeraj Kumar Srivastava shared Vaish’s opinion on the functioning of the court.
He referred to the Gangsters Act case against Afzal Ansari. While this case was filed in 2007, Srivastava told ThePrint, the BSP MP in 2013 filed a discharge application, which remained pending in the trial court until 2022. The court is now set to pronounce its judgment, he said.
Srivastava also told ThePrint that there are monitoring cells at the district levels, comprising an additional SP as the nodal officer, along with other police officers, to ensure protection of witnesses in such cases. Additionally, in September 2020, the Supreme Court had ordered chief justices of all high courts to designate a special bench to monitor progress of such trials. Therefore, these trials are also monitored by the Allahabad High Court.
‘Hand in glove’
During the hearing of Upadhyay’s PIL, the Supreme Court regularly took note of the hurdles faced in dealing with such cases. In September 2020, the amicus flagged the issue of delays, submitting that cases from 1991 are still pending in UP and Bihar.
The amicus submitted a report in August 2021 that highlighted insufficient number of special courts and judicial officers, non-appearance of the accused, and stay orders by higher courts for the high number of pending cases.
In November 2022, the total number of such cases across India stood at 5,097 — excluding those pending in Rajasthan, Uttarakhand, Jammu & Kashmir and Ladakh, for which figures were not available — up from 4,122 in December 2018. According to the report mentioned above, 41 per cent of the total pending cases were more than five years old.
As per another report submitted to the Supreme Court, between December 2018 and November 2021, the courts in UP disposed off 435 cases against MPs and MLAs — the highest in the country. However, UP also has the highest number of pending cases, 1,377, as of November last year. Bihar is second on the list, but with less than half as many pending cases, 546.
One of the sitting judges asserted that the delay from the side of MPs and MLAs is similar to the delay that may be caused by any other accused.
“However, the problem arises when ‘bahubalis’ are helped by the State. In the name of the case, they are against the State and the State is supposed to be against them, but in reality, they are often hand in glove. That is the problem,” he added. “If there is an MP or MLA from the ruling party, why would the government want him to be punished?”
As for when there is a change in dispensation, the judge told ThePrint: “Earlier, everybody used to be in cahoots with each other across party lines, but that may not be anymore, because there are a lot of other factors like religious bias and caste bias that play in.”
He also said that the judges are also under a lot of “pressure” and of “indirect messaging involved” in such cases. “There is more of an indirect pressure in such cases. The environment is molded in such a way…The media also builds up the pressure sometimes…”
In November 2020, the amicus in Upadhyay’s PIL told the apex court that while video conferencing facilities were available in some of the courts, these are not adequate to facilitate recording of evidence.
The MP/MLA courts, that ThePrint visited, were also using video conferencing facilities only for appearance of the accused, but not for recording evidence of witnesses.
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Petition that started it all
In his PIL, Upadhyay urged the Supreme Court for expeditious disposal of criminal cases against MPs and MLAs. He also sought a direction to ban convicted MLAs and MPs from contesting for life.
Under Section 8 of the Representation of the People Act, 1951, a person sentenced to imprisonment of two years or more shall be disqualified “from the date of such conviction” and remain disqualified for another six years after serving term.
In September 2018, the top court was informed by the government that 12 special courts — one each in Andhra Pradesh, Bihar, Kerala, Karnataka, Maharashtra, Madhya Pradesh, Telangana, Tamil Nadu, Uttar Pradesh and West Bengal, and two in Delhi — were set up for trial of cases against MPs and MLAs.
Three months on, the amicus submitted that the number of cases pending trial against sitting and former MPs and MLAs stood at 4,122 cases. Charges were not framed in 1,991 cases.
The Supreme Court then directed the high courts to assign and allocate criminal cases involving legislators to as many sessions and magisterial courts as each high court may consider fit.
According to an SC order, the Allahabad High Court issued a notification on 16 August 2019, designating MP/MLA courts for 62 districts in UP. The Prayagraj court was given the jurisdiction to deal with the cases pertaining to another 12. The state has a total of 75 districts.
However, the notification only spoke of sessions courts being designated, and not magisterial courts for trial of minor offences involving lawmakers.
In November 2021, the Supreme Court clarified that the notification was based on a “misconstruction” of its directions. Since then, most districts in UP have constituted or designated sessions courts as well as magisterial courts for trying offences against sitting and former legislators.
(Edited by Tony Rai)
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