This article is written by Dnyaneshwari Patil, from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this article, she discusses the legislative framework in India for speedy trials, various judicial pronouncements, causes of delays in trials and ways forward for improving the situation.
“Law should not sit limply, while those who defy it to go free and those who seek its protection lose hope” (Jennison v. Baker (1972) 1 All ER 997)
The judiciary aims to make the judicial system simpler, faster, uncomplicated and inexpensive for the common person. Long and delayed justice can defeat the purpose of the justice system. Therefore, the Constitution of India tries to protect many fundamental rights of the people, including speedy trials. According to Article 21 of the Indian Constitution, no person shall be deprived of his life or liberty except in accordance with the procedure established by law. Thus, it is well-established that it is not adequate that the procedure established under which a person is deprived of their liberty should be just in resemblance to the procedure, but the procedure should be ‘reasonable’, ‘fair’ and ‘just’ (Maneka Gandhi v. Union of India, 1978).
Similarly, in Hussainara Khatoon v. Home Secretary, State of Bihar, Patna,(1979), the Supreme Court held that it is the state obligation to provide a procedure to ensure fast disposal of cases for the accused. The right to a speedy trial is essential for protecting the life and liberty of a person, and thus it is a necessary ingredient of a ‘reasonable, fair and just’ procedure.
The Indian judiciary system plays a dynamic role by providing justice through fair and just trial to all its citizens, and these rights are included within the purview of Article 21. Speedy and fair trials are essential to both the victim and the accused. It is essential for protecting the life and liberty of a person. However, the Indian judiciary system suffers from several structural problems, which consequently hampers its functioning. One of them is regarding delays and the backlog of the cases. In 2018 about 30 million cases were pending in several Indian courts. Thus, lawyers and academicians need to explore and innovate models to reduce pendency in our judicial system so that the efficacy and effectiveness of the judicial system can be retained.
Justice delayed is justice denied
“Justice delayed is justice denied” is a well-known maxim that portrays exactly how our judiciary system works. It means that if a person is deprived of their rights or has suffered a legal injury, who has thus come forward to avail the legal remedy but is not obtainable properly, it is effectively the same as having no remedy. This principle emphasizes the need for speedy and fair trials. Thus the jurisprudence of speedy trial emphasises that an innocent person should get justice as early as possible by the judicial system without harassing the victim for an unreasonable period through the legal system.
The legislative framework in India for speedy trial
A delay in a case means that the case has been in the judiciary system for a more extended period than it should be before it is disposed of. Various constitutional, statutory and judicial pronouncements obliged the Indian state and legal system to ensure timely justice and tackle existing delays. The important ones are mentioned below.
Constitution mandating timely justice
Timely dispensation of justice is the fundamental right of every citizen guaranteed under Articles 14, 19, 21, 32 and 226. The state also must ensure timely dispensation of justice in light of Directive Principles of State Policy articulated in Articles 38(1), 39 and 39A of the Constitution of India.
The Directive Principles of State Policy declare that the state should strive for a social order in which such justice shall inform all the institutions of national life (Article 38 (1)). In Babu v. Raghunathji (1976), the Supreme Court held that “by taking into account the socio-economic realities, the system of administration of justice must provide a cheap, expeditious and effective instrument for the realisation of justice by all section of the people irrespective of their social or economic position or their financial resources.” Similarly, Article 39 and 39A provide legal aid and ensure that justice is not denied to anyone due to economic or other disabilities. Everyone gets the opportunity to seek justice.
The commitment to speedy justice from composite code of Articles 14, 19, and 21 of the Constitution of India is thoroughly articulated in the Supreme Court pronouncement in P.Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578] where it was stated that it is the duty of the state to dispense speedy justice especially in the criminal field, the scarcity of funds and resources is no excuse to deny the rights emanating from Article 14, 19 and 21 and the preamble of the Constitution, as also from the directive principles of State policy. The Court also directed the central and state government to do something concrete to strengthen the delivery of the justice system. It also reiterated what was held in Hussainara Khatoon (IV) 9, “The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but ‘the law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty’, or administrative inability.”
In Union of India v KA Najeeb,(2021), the Supreme Court delivered a significant judgement regarding granting bail in Unlawful Activities Prevention Act (UAPA), 1967. The UAPA is an alternative criminal justice system and the provisions of The Code of Criminal Procedure does not apply in such cases, and therefore, the accused have few safeguards. However, in this case, the SC held that irrespective of 43(D)-5 of UAPA, the constitutional court has the power to grant bail to the people accused if the court finds that the right to a speedy trial under Article 21 is being violated.
Article 51(c) ensures fostering respect for international law and treaty obligations, such as the right to speedy trials, which are enumerated in many international charters and conventions like International Convention on Civil and Political Rights (ICCPR), which the Indians have ratified. Article 247 enables the Parliament to establish certain additional courts for the better administration of laws made by parliament or any existing law regarding the matter enumerated in the Union List. The Forty Second Amendment in the Indian Constitution permitted the creation of specialised tribunals for different types of cases.
Provisions in the civil and criminal procedural codes in force in India
There are several provisions in civil and criminal procedures, devoted to timely adjudication and justice delivery. Some of the essential provisions are:
Provisions under Civil Procedure Code relating to a speedy trial
- Under CPC, there is a provision that ensures the right of the parties to enter into a compromise or take back their suit, recognised under Order XXII, Rule 3. Thus, when the court is satisfied that the suit has been adjusted wholly or partly by an agreement or the defendant has satisfied the plaintiff in respect of the subject matter of the suit, the court should record such a compromise and pass a decree accordingly. The insertion of Rule 3A ensured that the compromise decree could not be appealed on the ground that the compromise is not lawful. Thus, it provided that the trial is faster and more justice-oriented. In R. Janakiammal v. SK Kumarasamy (2016), the plaintiff filed a suit challenging the compromise decree contending that it was obtained without free consent. Thus, it became voidable at the instance of the plaintiff. The Trial and the High Court held that the suit is barred under Order XXIII rule 3A of the CPC. This was appealed before the SC, where it upheld the lower court’s decision and stated the only remedy available to the plaintiff is to approach the same court that recorded the compromise and satisfy the court that the compromise was not lawful. Further, the court added 3A to bar separate suits challenging the compromise decree by arresting further multiplicity of proceedings.
- Section 89 of the CPC deals with the settlement of disputes outside the court. Suppose the court deems that the matter contains elements of the settlement, which is acceptable to the parties. In that case, it may formulate the settlement terms and refer the same for arbitration, conciliation, mediation or judicial settlement. Similarly, in Order X rule 1A, the court directs the parties to the suit to opt for a mode of the settlement outside the court as specified in sub-section (1) of section 89 after recording the admissions and denials of the parties.
- Order XXVII, Rule 5B casts a duty of the court to make an endeavour to assist the parties, who is a Government or a public officer acting in his official capacity, in arriving at a settlement regarding the suit.
- Order XVII Rule 1 deals with the power of the court to adjourn and postpone a hearing. It also mentions that no such adjournment shall be granted more than three times to a party during the hearing of the suit. Rule 2 deals with the cost fixed by the court as it seems fit due to the adjournment.
- Order VIII Rule 1 deals with presenting the written statement by the defendant within thirty days from the date of service of the sermon. The chance of filling the written statement extends till 120 days after that, the defendant forfeits the right to file the written statement, and the Court shall not allow the written statement to be taken on record.
In SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd, the SC observed that the proviso added to the CPC by Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act 2015 is mandatory. It mentions that if a written statement in the commercial suit is not filed within 120 days from the date of service of summons of the suits, then after the mentioned time elapsed, no written statement will be taken on record in commercial suits.
- Order V deals with the issue and service of summons to the defendant. Rule 9 and Rule 9A of Order V tries to put forward the summons to the defendant. The said rule introduced substituted means of issuing summons. Section 27 also deals with the issuance of summons to the defendant on such a day, not beyond thirty days from the institution of the suit. However, in Salem Advocate Bar Association-I, 2002, it was held that the thirty-day framework is only the outer timeline within which the plaintiff has to take the necessary steps to enable the court to issue the summons. Thus, the Court held that the legislature did not specify a time limit within which the summons was to be issued to the defendant.
- Order XX deals with the pronouncement of judgement and mentions that if the judgement is not pronounced at once, then the court should make every endeavour to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded. Suppose the court is practically unable to do so due to extraordinary circumstances, in that case, the court should fix a future day for the pronouncement of the judgment, and such day should not be beyond sixty days from the date on which the hearing of the case was concluded.
Thus, many such provisions refer to time-frames and/or facilitate the timely delivery of justice.
Provisions under Criminal Procedure Code, 1973 relating to a speedy trial
There are many provisions in the Criminal Procedure Code devoted to timely adjudication and justice delivery. Some of the essential provisions are:
- Section 157(1) of Cr.P.C. mentions that every officer in charge of a police station is meant to proceed, to the spot, to investigate the facts and circumstances of the case. The officer, if necessary, can take measures and also arrest the offender. However, in Ombir Singh v. State of Uttar Pradesh and Anr., 2020, the SC reiterated that mere delay in sending the FIR to the magistrate complied with Section 157 of Cr. P.C cannot be a good ground for acquittal of the accused.
- Section 167(2)(a) of Cr.P.C. mentions that the magistrate should not authorise the detention of the accused in custody for a total period exceeding ninety days when the investigation is regarding the offences punishable with death, life imprisonment for life or imprisonment for a term of not less than ten years. Sixty days, where the investigation relates to any other offence, and on the expiration of such a period as the case may be, the accused shall be released on bail. Thus failure to investigate in the given time period would lead to the release of the accused in custody on bail.
- Section 173(1) of Cr. P.C states that the investigation under chapter X should be completed without any unnecessary delay. According to Section 173(1A), the investigation relating to offences relating to child rape should be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
- Section 260 to Section 265 of Cr.P.C. deal with the summary trial, where offences of small, petty categories fall under it. In this, the procedure is simplified and disposed of speedily.
- Section 265A to 265L, Chapter XXIA of Cr.P.C. deals with the concept of Plea Bargaining, which was inserted in the Code through Criminal Law (Amendment) Act, 2005. Plea bargaining basically is a bargain between the accused and the prosecution during the pendency of the trial. In this, the accused accepts to plead guilty for less severe offences in exchange for certain concessions by the prosecution. It applies to someone who is charge-sheeted for an offence not attracting a death sentence, life imprisonment or prison term above seven years. It is not applicable in those offences affecting the “socio-economic conditions” of the country or committed against women or a child below the age of 14.
- Section 309 of Cr.P.C. mentions that day to day proceedings of trial and inquiry should be conducted until all the witnesses in attendance have been examined. When a trial or the inquiry is regarding offences under section 376, or 376-A or 376-B or 376-C or 376-D of the Indian Penal Code, 1860, then the same should be completed within two months from the date of filing of the charge sheet. In the State of UP v. Shambhu Nath Singh, 2001, SC held that when the witnesses are in court, then according to section 309, they need to be examined except for “special reasons”, which are to be recorded in the order of adjournment. Thus the SC emphasised the mandatory provision against the adjournment.
- The absence and non-attendance of parties at various stages hamper the speedy proceeding; thus, the Cr.P.C provides provision to address the absence and non-attendance. Section 267 grants the power to require the attendance of the prisoner to the court, Section 270 provides the presence of the prisoner in custody to the court, and Section 271 provides power to issue a commission for examination of a witness in prison etc.
Hence, many provisions try to facilitate the timely delivery of justice.
Reasons for delay in the trial
Vacancies in the judiciary and an inadequate number of courts
Vacancies in the subordinate judiciary is one of the factors intensifying the problem of delay and arrears. A considerable number of vacancies poses a significant setback in the speedy delivery of justice. The judicial officers at the subordinate courts in our country are working at the strength of 16000 against the sanctioned strength of 22,200 as of 1st April 2018. These leave 5300 posts vacant, which constitute around 24 per cent of the total sanctioned strength. The appointment of the High Court judges are articulated in Article 217 of the constitution, and the procedure for the appointment is outlined in the Memorandum of Procedure (MoP) which is considered lengthy. The Chief justice of the concerned high court recommends the nominee to the state government. Then it goes to the Union Law Ministry, which then sends it to the Supreme Court Collegium. It is a cumbersome procedure. The MoP has articulated a timeline for the completion of procedure stages. Still, they are not always adhered to, and the absence of an overall time limit for the completion of the process makes it more cumbersome.
Steps have continuously been taken to correct the problem of vacancies, like the Supreme Court in case of district judiciary has been monitoring the vacancies. The timeline is being prescribed in Malik Mazhar Sultan v UP Public Service Commission in 2006 for filling up of the vacancies and is expected to be completed by different dates. The SC also directed the Union Department of Justice to take necessary steps so that the requisite funds allocated are made available to the state for the construction of judiciary infrastructure.
The SC in Imtiyaz Ahmed Versus State of Uttar Pradesh, 2012, asked the Law Commission of India to create additional courts and other allied matters to help eliminate delays and speedy clearance of arrears and reduction in costs. Justice Kurien Joseph also recommended that the retirement age of the High Court judge and Supreme Court judges should be increased to 70 years to get the full benefit of their expertise and experience.
In the case Lok Prahari vs Union of India,2021, the Supreme Court issued specific guidelines for the invocation of Article 224A. The Article enables the Chief Justice of the High Court to request the former High Court judge to sit and act as a judge of the HC for hearing cases. This provision has been rarely invoked in history. The Supreme Court has issued five trigger points for activation of the process under Article 224A.
- If the vacancies are more than 20% of the sanctioned strength.
- The cases in a particular category are pending for over five years.
- More than 10% of the backlog of pending cases are over five years old.
- The percentage of the disposal rate is lower than the institution of the cases either in a particular subject matter or generally in the Court.
- Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a year or more.
Delay in the police investigation
The police investigation is critical to the functioning of the Criminal Justice System. The police system uses old obsolete techniques to collect evidence, and thus it results in a delayed investigation. On the other hand, criminals are committing well-planned crimes by using scientifically developed techniques. Many police manuals expect the police officer to reach the investigation site immediately for preserving the evidence and preparing the site plan etc. However, this has not always been adhered to. The police officer delays the filing of charge sheets. Forensic reports are also delayed as few forensic labs exist; delays in the expert report, both forensic and cyber, thus, causes enormous delays and occasionally leads to miscarriage of justice.
While hearing the petition “In Re: Speedy trial of undertrial prisoner”,2018, and “In Re: Alarming rise in the number of reported child rape incident”,2019, the Supreme Court observed the importance of increasing the number of forensic science laboratories as a large number of trials are pending due to expert reports and thus to ensure the speedy trial, it is necessary to develop the infrastructure for speedy investigation.
In the State Of Karnataka v. Shivanna @ Tarkari Shivanna,2014, the SC, after witnessing a recurrence of heinous crimes of rape all over India, issued specific guidelines for fast track procedure for investigation by the authority without causing any unnecessary delay.
The SC, while addressing the deficiencies in a criminal trial, in a suo moto case (“In re: to issue certain guidelines regarding inadequacies and deficiencies in a criminal trial”) discussed the feasibility of creating a separate cadre of the judicial magistrate for monitoring the evidence collection process during the investigation. They discussed that it would be a fool-proof collection of evidence, and there would be a greater sense of responsibility for the police at the initial stage of the investigation.
Non-appearance of the parties and frequent adjournment
In the State of Maharashtra v. Champalal Punjaji,1981 the Supreme Court observed that delay is the known defence technique. In case of weak evidence, the prosecution tends to delay the process so that the accused is kept incarcerated for a more extended period. With the passage of time, the memories of the witness fade along with witnesses for the trial. Thus many times, due to hostile witnesses, the onus on the prosecution is even more burdensome. The respondent several times knows the probability of the judgement would be against him, and therefore the respondent tries to take as many adjournments as possible to give his counter.
According to Order XVII, after the 1999 amendment in CPC, Rule 1 mentions that the adjournment should not be provided more than three times. However, in Salem Advocate Bar Association-II,2005, it has been noticed that the courts do not have to strictly adhere to the provisions as it was held that in case of circumstances beyond the control of a party, there is no restriction for granting adjournment by the court. Thus, the court has the power to grant adjournment more than three times when the circumstances are beyond the parties’ control.
Adjournments are also caused by the absence of the presiding officer of the court due to unexpected causes. Thus, the cases fixed for the day are automatically adjourned to the next working day. Unanticipated holidays and long vacations of the judges are another reason for delays in the disposal of the cases.
Other causes of delay
- Transfer of judges;
- Delay in services of summons and warrants on the accused /witnesses;
- Delay in the examination of the witnesses;
- Non-adherence to various provisions mentioning time frame for completion of the procedural stages by the court;
- Increase in litigation and massive piling of appeals;
- Increase in legislative activities and loopholes in the laws;
- The failure of taking advantage of alternative disputes resolution, etc.
Some initiatives that can be taken to reduce the pendency and delays in proceedings
Diversions to alternative methods
Undertaking pre-litigation mediation would reduce the inflow of cases to the courts. For this adequate research, training and preparation are required in the Alternative Dispute Resolution (ADR) mechanism, which would help in reducing the pendency of the cases. Plea bargaining should be encouraged in criminal cases. Lok Adalat is the principal instrument of the ADR mechanism and should be encouraged more. Ensuring full capacity is utilised by commercial courts for settling commercial disputes and Gram Nyayalayas for resolving small disputes.
Case and court management
Case planning and grouping different cases in different categories based on the time allocated to them. For example, fast track, medium track and long track- treatment, bunching similar cases for collective treatment and grouping them based on urgency and priority. There should be strict regulation for providing adjournment, and high costs should be imposed if the reasons proposed for adjournment are flimsy. Dilution of the time frame specified in the legislation should not be permitted easily. Written arguments should be encouraged where it is possible and thus limiting the time for oral arguments. Annual targets should be made to dispose of old cases for the subordinate courts and high courts. Bi-monthly and quarterly reviews should be taken to ensure transparency and accountability.
Use of technology
The application of technology at various stages of judicial proceedings would undoubtedly help in the fast disposal of cases. Technology can be effectively used in e-registration of cases, e-payment of court fees, auto-generation cause lists and daily case status, uploading final order/judgment, etc. Technology can be used to fully upgrade the advocates, litigants and public, legal services, judicial academy, etc. The alternative disputes resolution can also be taken up online to settle disputes and other online dispute redressal mechanisms like e- negotiation.
The delays in a court proceeding are endemic. Few reforms cannot solve it. An attitudinal change coupled with motivation, accountability, and a sense of ownership is necessary to bring the paradigm shift in the system. Emphasising a positive outlook and mindset is essential to bring change. The manpower should introspect and look for answers and solutions for reducing delay and pendency. Justice delayed is justice denied; therefore, the judiciary should focus on delays and pendency in the cases as it is crucial for ensuring the public’s confidence in the judicial system.
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