The Judiciary being the ultimate protector of human rights occupies a major platform within the society. The Judiciary plays a pivotal role for dispensation of justice. Citizens of India quite obviously look up this institution with great hope. The Judiciary being one of the wings of the State is heavily entrusted with the responsibility to discharge its duties attached to it. Qualities of honesty and integrity are inherent to these expectations. The role of the judiciary places enormous responsibility on the shoulders of the courts. The development of the nation is dependent on the dynamism and the innovativeness of the judicial system.
Despite the increasing incidence of reliance on the Courts, in today’s time, there are large sections of the population, who are hesitant to approach the judicial system on account of factors such as entrenched social discrimination, poverty, inordinate delays and un ended expenses. The hard work being done by the judges, the problem of delay and long pendency of cases often causes the officers of the court including the Judges to face criticisms. We therefore have an apparent paradox i.e., even though the judicial system has been tackling a continuously rising case load, the overall social indicators of access to justice are quite disappointing. Unless something is done about it, the entire system will collapse. We must remember, speedy justice being the fundamental right, must be strictly enforced to ensure justice is given to the litigants. Number of important guidelines can be found for enforcement of speedy justice, but unfortunately, the same is not adequately implemented by the trial courts.
In today’s society, there has been a rapid increase in trade and commerce. With such increase, disputes, in particularly the commercial disputes are likely to increase. Unless therefore disputes are adjudicated in a time frame manner, the purpose of adjudication will be defeated. This article revisits and examines the judicial reflections on the causes for the delay and analyses the effectiveness of guidelines issued for ensuring speedy justice while attempting to make suitable suggestions for appropriate implementations.
Delay, Pendency and Backlog of Cases
There is no clear understanding of when a case should be counted as delayed. Often, terms like “delay”, “pendency”, and “backlog” are used synonymously. This leads to confusion. For the sake of clarity, these terms may be understood as follows:-
According to the Law Commission of India’s 245th Report on Arrears and Backlogs, pendency means “all cases instituted but not disposed of, regardless of when the case was instituted.” The term “delay” means ‘a case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of’. ‘Backlog’ means “when the institution of new cases in any given time period is higher than the disposal of cases in that time period, the difference between the institution and disposal is the backlog. We can say accumulation of more/greater cases rather than disposal of cases represents the system’s inability and machinery to handle the cases. The Hon’ble Supreme Court advocated the use of case-specific time tables for the timely disposal of cases in Ramrameshwari Devi –Versus- Nirmala Devi (2011) 8SCC 249 and held that the trial court should, at the time of filing the plaint, prepare a complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till the pronouncement of the judgment. It should be the duty of the trial courts to stick to those timelines as much as possible. Quite often we see, due to filing of an interlocutory application, the timetable of the bench gets disturbed. But this can also be effectively dealt with by the Judges. If the interlocutory applications can be disposed off in between the intervening dates. The Judges should seriously try to dispose of the interim applications within 60-90 days. In that way, the timetable for the main suit will not be affected. Many a times we see how due to delay in disposal of an interim application, the timelines for the main suit gets delayed. Often due to unnecessary adjournments and delay tactics, it takes several months for the Judge to dispose of an interlocutory application, and as a result, the timelines for the main suit gets disrupted. It is therefore essential that a proper guidelines for time bound disposal of cases are scheduled by the legislature or/and by the Judiciary for dealing such cases. Unless such strict timelines are maintained, the problem arising out of delay will remain unsettled.
III. JUDICIAL REFLECTIONS ON CAUSES FOR THE DELAY
Indian Courts are held in high esteem not only by the Asiatic countries but by the European nations as well. The problem of delay and huge backlog of cases seems to take the credit away from all of us. It is high time that we guard ourselves against this mechanism and take appropriate remedial measures so that people do not loose faith upon the judiciary. In Swaran SIngh –Versus- State of Punjab (2000) 5SCC 668: AIR 2000 SC 2017 observed that “it is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice.”
Few factors that affects the system are trial magistrates list a large number every day when they cannot physically pay attention to all those cases personally, leading to a waste of time on calling work or roll calls only to adjourn the cases to next dates; (b) cases being required to be adjourned because prisoners are not produced before the judge; (c) witnesses not being present, though served, (d) dilatory tactics of prosecution or defence; (e) inept handling of court administration by inexperienced judicial officers.
- Delay in Police Investigation
The criminal law is set in motion after filing an FIR. After filing of FIR, investigation follows in. the investigation process seems to continue in old fashioned methodology without much scientific proof or basis, thereby prolonging the proceedings and causing miscarriage of justice. There are other reasons which are responsible for causing delay such as apathy on the part of the police in registering the FIR; second, the polices are hesitant to proceed with the investigation against influential persons; third, delay in filing charge sheet; third: delay in causing the investigation at the earliest moment and reluctance to act swiftly unless some form of applications of inaction are filed in various courts against police inaction. Further, on occasions we see the police stations are understaffed for which the investigations get delayed. Despite the existence of Superintendents of Police or Commissioner of Police, the police authorities find hard to stop the crimes due to lack of intelligence network and poor mobilizing facility. Due to dearthness of infrastructure, sufficient priority is not given for investigation of crimes that allows the offenders to flee.
- Delay in service of Summons/Warrants
Due to non-service of summons and/or improper delivery of summons, commencement of trial gets delayed. The courts are reluctant to place the matter for hearing unless the twofold service of summons is effectively completed. Postal remarks such as “not served”, “unclaimed”, “addressee left”, “addressee moved”, “not found” makes the court hesitant to put the case for hearing. These endorsements also compel the court to pass direction for paper publication or substituted service thereby compounding further process of delay. In the criminal cases, non-production of witnesses is major things. Where there are number of accused, the delays on these account has become a regular feature. If the accused are residing outside the District or the State, it compounds the problem further. Section 62 of the Code of Criminal Procedure provides that summons shall be served by a police officer, or subject to such rules being framed by the State Government, or by any officer of the court, or other public servants. Unfortunately, these rules have not been framed by many state governments.
- Delay in Examination of Witnesses.
Delay in examination of witness is also an important reason for inordinate delay of disposal of justice. The witnesses are often found to avoid the courts, or there are occasions when the lawyers themselves adopt the delay tactics in cross examining material witness. The Hon’ble Supreme Court has observed that “the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing the got-up witness to falsely support the prosecution case.”
- Delay in Submission of Expert Reports
In today’s world, most of the crimes are especially the cyber-crimes are routed through internet technologies either on mobiles or on social medias or through applications. In such a situation, investigations are heavily based on modern gadgets such as mobile apps, video gadgets etc. the report of FSL experts and medical jurists play a seminal role, both at the investigation stage and also at the trial stage in the determination of facts. The Indian Evidence Act read with Information and Technology Act has imposed various restrictions on admissibility of electronic gadgets. So, the police departments are heavily dependent on the report of forensic laboratories. Forensic laboratories are scarce at rural levels. Even in District levels, there is dearth of cyber experts in police departments of various states. State Governments have often laid down various norms for submission of police reports but these norms are rarely adhered to due to inadvertence and over loading of cases.
- Non Implementation of pre-trial hearing under the Code of Criminal Procedure
Section 291 to 298 of Cr. P.C. provides for sorting out certain matters at the pre-trial hearing. Section 294 of Cr. P.C. envisages that the particulars of every document filed by the prosecution or the accused shall be included in a list and the other party or its pleader “shall” be called upon to admit or deny the genuineness of each such document. Where the genuiness of such document is not disputed, the document may be treated as “proved.” This provision is rarely utilized.
- Improper Court Management
At first, there are large number of cases, which is known to everybody that it cannot be dealt with on a particular day for want of time and lack of machinery. The second point is indulgence of adjournments. Third, resolutions such as no adverse order, strike due to demise of member of the bar often imped the administration of justice. Trial court judges do not put effective case management measures dealing with the cases.
- Delay in pronouncing/signing of Judgment
On many occasions we see the Sessions Judge adjourn the cases for long period of time. This causes delay and many witnesses who would have supported the prosecution case lose interest in the case. Some Judges do not deliver judgments for years. This affects the quality of judgments as the Judges forget important aspects of the cases, thereby contributing to failure of justice. Inordinate delay in delivering judgments should be avoided in public interest. There are occasions when the judgments are not promptly signed after they are typed and read, thereby causing great hardships to the parties.
- Delay in Appointment of Judges
It is unfortunate that large number of vacancies in the High Courts remain unfilled for a prolonged period of time in spite of the formula given by the “Arrears Committee” for determining the Judge strength and for expediting the appointment process. The appointment process is mainly under the control of the judiciary and therefore , the blame for this delay is largely on the judiciary itself.
- Advocates’ Strikes
Lawyers’ strike is one of the main hindrances in speedier criminal trials. A Five Judges Constitution bench of Hon’ble Supreme Court has declared that the lawyers have no right to strike or to give calls for boycott, not even of a token strike. Seeking adjournments on one pretext or another, boycott of courts, inducing witness to turn hostile has already brought disrepute to the system. Such conduct on the part of the officers of the court affects the administration of justice. Under the rule of law, litigant public cannot be stopped from approaching the Court for seeking judicial review as the judicial system gives an expectation to the general public that they can get redress for their grievances if they approach the judiciary in compliance with the laws set out by the legislation.
The Hon’ble Supreme Court in RD Saxena –Versus- Balram Prasad Sharma (2000) 7SCC 264 AIR 2000 SC 2912 observed “in our Country, admittedly, a social duty is cast upon the legal profession to show that the people beacon light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as the most respectable profession. No effort should be made or allowed as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country”. Lawyers being the officers of the court must reform themselves by adhering to new system of professional ethics by reforming themselves as responsible members of the bar.
Judicial Mechanism required for the enforcement of the right
The Hon’ble Supreme Court in held that speedy trial is the essence of criminal justice, and therefore, delay in trial by itself constitutes denial of justice. In Maneka Gandhi case, the Supreme Court held “Article 21 confers fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just.” The object of this judgment should be properly implemented by the trial court. The Judges must remember any procedures which keeps propagates the system of justice without any basis can be said to be a violation of the mandate of Article 21 of the Constitution of India.
The same observation was also followed in P. Ramachandra Rao –Versus- State of Karnataka where the Court held “it is the constitutional obligation of the state to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defense to denial of right to justice emanating from Article 21, 19 and 14 and the preamble of the Constitution as also from the Directive Principles of State Policy.”
Right to Speedy Justice and its inter relations with Judiciary
In Raj Deo Sharma, it was argued by the Additional Solicitor General that the subordinate courts were under a wrong impression that the directions contained in the said judgment gave no option to them but to close the evidence of the prosecution whenever the periods mentioned in the guidelines were completed. After deep consideration of the ratio in the judgment of Abdul Rehman Antulay, case and judgment in the main appeal in the present case, the Court said that it has not fixed any time limit for the conclusion of trial neither in the Antulay case nor in the main judgment of the case. The Court further held that as pointed out in Antulay case, it has to balance and weigh several relevant factors and determine in each case whether the right to speedy trial has been denied. It also clarified, by framing the guidelines it only enabled the subordinate court to apply the right balancing test that the guidelines have been given in the main appeal. The judgment has also taken care to mention that the directions given therein are only to supplement the propositions laid down by the Constitution Bench in Antulay case without prejudice to the directions issued by the Court in Common Cause case.
The Hon’ble Supreme Court in P. Ramachandra Rao case held that the right to speedy trial is a fundamental right but the judiciary cannot make a law for its enforcement and can merely declare the law. In Hussain –Versus- Union of India the issue again came up for discussion on the enforcement of speedy justice in the context of granting bail to the accused. The subject of the case was that the appellants were in the custody since 4th August, 2013 on the allegation of having committed offence under section 21(c) of the Narcotic Drugs and Psychotropic SUbstances Act, 1985 (NDPS Act). Their bail application, pending trial, has been dismissed. Another appellant was in custody since 11th January 2009. He was convicted by the trial court under section 302 IPC and was sentenced to undergo life imprisonment. His bail application was dismissed by the High Court pending appeal.
The Court referred to Section 436A Cr.P.C., which provides for grant of bail when a person has undergone detention up-to one half of maximum prescribed imprisonment. With regard to grant of bail, pending appeal, reference was made to the earlier decisions of Court in Akhtari Bi –Vs- State of MP (2001) 4SCC 355 and Surinder Singh –Vs- State of Punjab (2005) 7SCC 387, which provide that if the appeal is not heard for 5 years, excluding the delay for which the accused himself is responsible, bail should normally be granted. With the above observation, the Hon’ble Supreme Court issued the following directions:-
- The High Courts may issue directions to subordinate courts that (a) Bail applications de disposed of normally within one week; (b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials, where accused are in custody, be normally concluded within two years; (c) Efforts be made to dispose of all cases, which are five years old by the end of the year; (d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded, if conviction is recorded, such undertrial must be released on personal bond. (e) The High Courts may monitor steps for speedy investigation and trials on administration and judicial side from time to time. The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.
The judicial reflections highlighted by the Hon’ble Supreme Court on the reasons for the delay and guidelines for the enforcement of speedy justice are treated by the trial courts as mere dictas or to remain to be mere guidelines, lacking legal sanctity. To me, certain principles are in the nature of ratio, but in practical world, it is difficult to be implemented due to absence of a codified law. The idea of a law (Right to Speedy Justice Act) needs to be enacted if the ratios and the theories of judicial reflections laid down by the Supreme Court are to be enforced in practical reality. The recognition of fundamental rights by the Courts have yet yielded fruits principally because it does not have a set of codified law. Hence, these rights have become more of a illusory figure in practical domain of law. Unless there is a specific law or a statutory enactment for enforcement of speedy justice, these principles will continue to remain an illusory work.