This article is written by Bharat Kumar Singh and Aman Pratap, both students of National University of Study and Research in Law, Ranchi.

There is a famous phrase that, “Justice Delayed is Justice Denied”. This gains importance when in India at present, there are nearly 19,000 judges, including 18,000 in trial courts who are dealing with a pendency of 3 crore cases. The penal process in India- the world’s largest democracy is very much similar to that of United States where the American prisons are termed as over- crowded and that defendants in custody do need to wait for prolonged intervals before their actual cases are tried as trials in the courts of law. However, in reality, the condition is much worse. The accused are locked up behind the bars and then these prisoners have to wait nearly for decades and years for that good day when their turn will come up and their trial shall begin. A research study done in India also shows that most of the prisons are overcrowded and furthermore no special care are being taken by the authorities in regard to the condition of the prisoners. In Indian prisons, the basic fundamental human rights are being contravened every now and then where the prisons have procured a squalid malaise and as a result, the inmates at prisons face multiple serious physical sufferings. The next strata of justice i.e. the courts have again too many of open cases to deal with. If the courts were to speed up and clear these cases, what could be the strategy is an underlying question. In India, all the non-convicted defendants have to undergo within the Indian criminal justice process i.e. “under trial” which in itself is a staggering process for which partially the high ranking government officials, the lawyers and the judges seem to be responsible. Hence there is a need of massive reforms in the country’s penal process. In this study, the researcher is examining the current state of the Indian criminal justice system. Incepted in 1979, the Indian Supreme Court for the first time referred to the American Constitution’s Sixth Amendment, and held that the defendants had a fundamental right to a speedy trial. The researcher is examining the evolution of the Indian jurisprudence on this matter. As the findings suggest, there exists a major gap in India between these encouraging judicial pronouncements and how the right plays out in reality. The crises we are referring to in the present context is occurring against a paradoxical Indian landscape that on the one hand is characterized as one of the most dominant powers in the world stage and has the potential of high economic growth. However at the same time, the country suffers from disparate backlogs. Counting it may lead us to the corruption muddles, severe poverty, daunting challenges of population explosion and the lacking strength of good educational institutions that are all assaulting the present Indian State. When these hardships are already present, it is strenuous to invade as to how the country can reconcile the brawl of underperforming criminal justice system. For a country that targets democracy, their seems an enigma how such grail can be secured when the objective of speedy trials has gone astray from the desired procedure.

In 1950, the Indian Constitution came into force and in 1947 it achieved its independence from the Great Britain. However, while this hefty task was performed, the drafters did not explicitly mention anything about an individual’s right to undergo or execute a trial in the most preferred manner.[3]

Now it was a very common practice for the prisoners that were under any sort of trial to undergo several long periods in dark prisons and furthermore in most of the Indian Supreme Court pronouncements in the earlier 1952, the prisoners under trial were to deal with situations in the same landscape which for the present era approaches of a standard ‘Human Rights’ seems slightly though. In one of the cases of Lachmandas Kewalram Ahuja, the defendants were generally convicted under the system of criminal justice of the pre-1950’s. However after the formation of the new Constitutional provisions, the guarantees that directed towards the fundamental structure[4] made the court order that till the time duration the court inaugurates a newer version of the case in order to ensure the defendants appearance at  trial, they are needed to be retained as under trial prisoners and hence in custody.[5]

Two decades after independence have occurred and the concern for the issue still remains at dark. On numerous occasions, the court collected less focus in directing the prosecution to justify the under trial prisoners continued detention[6]. Also when the Prime Minister Indira Gandhi imposed the emergency Rule while suspending the Constitution, the court acted upon the government’s specific demand not to provide with the measures of speedy trial to the political prisoners that were jailed at that time.[7] It was only possible after the Mrs. Gandhi hearing to defeat in the furthermore elections that the Court gained concerned to examine as to why the political leaders should not be moved outside the bars un order to make itself in the area of legitimacy.[8]

In the landmark case decision of Hussain Khatoon v. Home Ministry[9], Justice P.N. Bhagwati opined in the case that the defendants had under article 21 of the Indian Constitution the right to speedy trial.[10]

Concerned about the past time, Justice P.N. Bhagwati’s ruling up roared great media attention and then a massive reconditioning was followed as to how the population of the prison was to be cared.[11] The court’s ruling was based majorly on the United States procedure of Criminal System[12] and also on an earlier case decision of Maneka Gandhi v. Union of India.[13] The court in this case directed to the ruling that “substantive due process shall be recognized as a fundamental aspect of Article 21.”[14] Subsequently the court in the later of its judgments in 1980 prohibited acts of hand cuffing the undertrial prisoners unless there seemed to be a clear danger of escaping of the prisoner.[15] The same year, after the grievous efforts of Justice P.N. Bhagwati, four boys- all aged around twelve of age were finally acquitted of their charges in 1981[16] who were being dragged for about eight years of awaiting trial.[17] Similarly there were multifarious cases during the 1980’s where the juveniles were remedied from the clutches of the undertrial period of waiting for the judgment day.[18]

During this era of 1980, the court generally focused on the region of North Indian Jail and also widely dealt with the issue as to whether the time that is already spent in prison waiting for trail could be deducted from the final sentence period?[19]

With this respect the court turned its decision in 1985 and hold that the ones who are facing the trail for lifelong imprisonment can be dealt in the manner as provided in the earlier paragraph.[20] In a landmark case of 1994, the Indian Courts turned their decision accepting that the undertrial prisoners who spent maximum time waiting for their turn to come up and then are further stretched in prisons as a part of the sentence[21] that is awarded to them by the courts of law strictly is violative of their fundamental right enshrined under article 21.[22] There’s a 2010 survey data submitted by the Indian Government which speaks that seventy percent of the under trial prisoners locked up in jails are still to be incarcerated.[23] This government’s most recent data of the issue concludes that from the earlier digits, the strength of under trial prisoners has just increased to fifty thousand people instead of declining in just two years.[24] This fact in itself helps us contend that all the age old Supreme Courts verdicts dealing with the issues of under trials have not been functionally implemented. Furthermore, over 1/3^rd of the 2007 population of the under trial’s population lowers the literacy rate. Most of them are backing with a lesser education degree and these ones are not even qualified for the 10^th grade examination.[25]

The 2007 data on which our analogy is based speaks of a very unique but different version as to the issue of the under trials. Is displays that most of the SC’s, ST’s and OBC’s (Backward Classes) are making up the under trial population. Furthermore, 2/3^rd of the undertrial population backs form one of the three classes as mentioned above.[26] Hence the backward classes gain another platform where there is a great need for working for their upliftment.[27] Further if we choose state wise categorical explanation, then West Bengal, Jammu & Kashmir, Goa, Karnataka and Himachal Pradesh) bags fifty percent of the list of 2007 under trial population and then again belonging to backward classes. One can easily sense that while these under trail complications are being majorly faced by the lower strata of the society, the criminal justice system seems to be unfair in consideration to these lower caste people.[28] The next impressing data we are going to forecast from those of 2007 list of surveys performed is that while most of the under trial prisoners are facing ‘murder charges’, it represents a silent history  of the old collage of legal presumptions where murder charges are still treated as consequential misdemeanors.[29] The next towering under trial prisoners are that of facing theft charges.[30] The Narcotic Drugs and Psychotropic Substances (NDPS) Act has also breached its limit by getting placed in the third position while accumulating 11, 108 under trial prisoners facing charges under the act.[31] And very next to it we have charges of arms conflict whereby nearly six thousand under trail prisoners are being taken care of.[32] Now consider the data where from the end of two thousand and seven, nearly 103,624 under trail prisoners have been waiting for their trial for 3 months or less.[33] All these muscular data leads us to the conclusion that the Indian Penal Justice system is probable the biggest black hole in case surviving and again it favors class division of the society and hence leading us towards a stereotype.  In one of the statements form 2010 as given by the CJI, who denoted that almost all the undertrial Judges need to be praised for their high disposal of cases, however the data needs to be properly analyzed before applauding for it.[34]

There are multifarious question in relation to the present issue. First of them is that how many of the under trail prisoners as mentioned in the above data are currently facing their hearing? Or how many of them have already been provided with the bail?[35] Normally, as the procedures of Criminal Procedure of India provide for, an individual arrested must be made available for hearing before the magistrate within twenty-four hours of the time synapse (excluding the time made for the travel purpose)[36] and at that time, the magistrate shall make on the decision as to grant bail to the accused or not. Apart from the trail decision, the police bear the responsibility to continue with the investigation process so as to timely determine whether the charge-sheet with the prosecutors is filed or not.[37] Then the next procedure stands to the point of determination whether to proceed for a trail or not. However the above mentioned data does not guarantees whether the under trail prisoners who are being counted have been denied with their bail applications or not.[38] Ultimately, from the issues and factual data as represented above, a worsened condition of Indian Penal System can be assured of.

Supporting the same cause on which the present theme is based upon is not something new on its own. Once, Jagmohan Singh, empirically detailed a rich scholarly book presenting his opinion on the under trials situation of the country.[39]His experiences as he shared in his book were centered to North Kashmir.[40] His initial chapters of the book focused on the ancient adjudicators who were the law givers of the country. They not only focused on the framing of a standard legal opinion on every issue the man kind faced and dealt with at that time but they were also very peculiar with the time limits under which their law had to take its course and fulfill the function of granting of the Justice.[41]

Singh then goes on further arguing that in the ancient period of India and generally in the era of the Mughal’s (16^th to 18^th Cent.), the provisions of speedy trial were great into action. At that time the kings were praised and ranked on the basis of their quick ability of disposing the cases. Moreover, it was dealt as an act of high esteem[42] by various rulers.[43] Yet at the end of the Mughal’s dynasty, the criminal justice delivering system became sluggish and was characterized with corruption.[44] This was the very similar system that the British inherited during their arrival and propounded most of their policies.[45] The Britishers in their era established numerous Law Commissions to study and make the best of the law in order to tackle the problems.[46] The Indian Jails Committee (1919- 1920) proposed first of its proposals to address the backlog[47] and suggested that the convicted must be heard in the proper allocated time interval so as to prevent backlog.[48] In the post-independence[49] state of affairs, similar recommendations were made.[50] It was in 1979, when a 4 membered law commission suggested resolving the problem of decreasing the “prison population”.[51] Again in 1983, the Mulla Committee devoted a time of 3 years of empirical study in understanding the problems of under trials.[52] In 1993, the NHRC (National Human Rights Commission) issued several directives for ensuring that all the under trial prisoners are treated in a humane manner.[53]

Following are some of the major recommendations in relation to resolve the issue of under trials and hence in way to achieve the path of speedy justice, the following proposals have been enshrined:

1. The number of judges in the courts must be increased so as to decrease and minimize the burden of resolving the cases on every particular judge;[54]
2. The courtroom process has to be enhanced technically so as to make the court room, a sound space to resolve the disputes with no difficulty;[55]
3. The police must be encouraged to accelerate the investigation procedure;[56]
4. The criminal cases must be continued in no time when in between of the cases, the hearing judge is made transferred;[57]
5. Promoting the government with unnecessary adjournments in the hands of the judiciary must be stopped;[58]
6. The bail opportunities for less grave offences must be increased;[59] and
7. The under trial prisoners must be separated from the ones who have already being convicted by the court and hence must be treated softly since they are still considered innocent in the eyes of the law.[60]

For the world to be called an ideal place for the under trials to stay, the following recommendations shall help in resolving the dilemma. Alongside with the persistent issues, the lack of political will to resolve the issues existing in the society and the insufficient devotion to allocate resources and funds in the right place also needs to be resolved hand in hand.

[3] For reference see the document of the Constituent Assembly at supra note 20

[4]  Lachmandas Kewalram Ahuja v. Bombay, (1952) S.C.R. 710

[5]  Id.

[6] Madhu Limaye v. Magistrate, (1971) 2 S.C.R. 711; Ranbir, Singh Sehgal v. Punjab, (1962) S.C.R. Supl. (1) 295; Leo Roy Frey v. Superintendent, (1958) S.C.R. 822; Kanta Prashad v. Delhi Admin., (1958) S.C.R. 1218

[7]  Upendra Baxi, The Indian Supreme Court and Politics, Eastern Book Co. (1980)

[8] See Carl Baar, Social Action Litigation in India: The Operations and Limitations on the World’s Most Active Judiciary, 19 POL’Y STUD. J. 140–50 (1990)

[9] (1979) 3 S.C.R. 169

[10] See Upendra Baxi, The Supreme Court Under Trial: Undertrials and the Supreme Court, 1 S.C.C. (JOUR.) 35, 35–51 (1980); A.D.M. Jabalpur v. Shukla, A.I.R. 1976 S.C. 1207

[11]  Furthermore in the decision, the court directed towards some of the concerning issues in respect to the undertrial prisoners. The court became focusing towards the Humane approach, greater preference to bail options, reduction in the time one has to undergo from the arrest to the trial etc.

[12]  See Khatoon v. Home Ministry, (1979) 3 S.C.R. 169

[13] See Maneka Gandhi v. India, (1978) 2 S.C.R. 621

[14] Id.

[15] Shukla v. Delhi Admin., (1980) 3 S.C.R. 855

[16] See Pehadiya v. Bihar, A.I.R. 1981 S.C. 939; Bir v. Bihar, A.I.R. 1982 S.C. 1470

[17] See Batra v. Delhi Administration, (1979) 1 S.C.R. 392 (1978)

[18]  See, e.g., Munna v. Upper Pradesh, (1982) 3 S.C.R. 47; see also Supreme Court Legal Aid Comm. v. India, (1989) 2 S.C.R. 60

[19] See Yadav v. Bihar, (1982) 3 S.C.R. 533.

[20] See Kartar Singh v. Haryana, (1983) 1 S.C.R. 445; Sethi v. Bihar, A.I.R. 1982 S.C. 339

[21] See Bhagirath v. Delhi Admin., (1985) 3 S.C.R. 743

[22] See Supreme Court Legal Aid Comm. v. India, (1994) Supp. 4 S.C.R. 386

[23]See, e.g., Sarkar v. Ranjan, A.I.R. 2005 S.C. 972

[24] Id.

[25]  http://www.indiastat.com/crimeandlaw/6/whatsnew.aspx

[26] Id.

[27] See Id. At 28

[28] See Marc Galanter, Competing Equalities: Law and Backward Classes in India (1984); Timothy Lubin, Donald R. Davis & Jayanth K. Krishnan: Hinduism and Law (2010)

[29] Id.

[30] Hari Om Maratha: Law of Speedy Trial- Justice Delayed is Justice Denied (2008)

[31] See Id. at 28

[32] See Id. At 28

[33] http://www.indiatogether.org/ 2007/may/rvw-judreform.htm

[34] See Id. At 28

[35]http://barandbench.com/brief/2/882/ litigation-statistics-debate-continue-all-india-seminar-on-judicial-reforms-looks-at-real-statistics- and-real-numbers654425

[36] Id.

[37] http://mahapolice.gov.in/ mahapolice/jsp/temp/arrestfaq.jsp

[38] Id.

[39] http://lawcommissionofindia.nic.in/51-100/Report78.pdf

[40]  See Jagmohan Singh: Right to Speedy Justice for Undertrial Prisoners (1997)

[41] Id.

[42] See id. at 20

[43] See id. at 29

[44]  See     Robert Lingat: The Classical Law of India, 67, 219–22

[45]  Id.

[46]  See Surendra Kumar Pachauri: Prisoners and Human Prison System, 77–83 (1999)

[47] http://humanrightsinitiative.org/publications/prisons/prisons_visiting_system_in%20India.pdf

[48] See F.A. Barker: The Modern Prison System of India, 1919–1920, Indian Jails Committee (1944)

[49] Id.

[50]  These reports by the Law Commission of India typically focused on the defendants already convicted

[51] http://www.humanrightsinitiative.org/artres/Access%20to%20Justice%20for%20Undetrial%20 Prisoners.pdf

[52] See Government of India , Ministry of Home Affairs, All India Commission on Jail Reforms (1980–83)

[53]http://nhrc.nic.in/faq.htm

[54]  Id.

[55]  Id. at 62

[56] Id. at 62

[57] Id. at 62

[58] Id. at 62

[59]  The 78^th Law Commission pointed out that there must be surety granted for the offenders with less serious offences and hence in these cases, the bail ought to be provided. Also some circumstances can occur where the defendant has failed to appear and hence in such circumstances, the defendant shall automatically be considered guilty of an offence

[60] Id. at 62