Injustice served when Justice is delayed | Speedy Trial

“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker, 1972).

“Justice should not only be done but should manifestly and undoubtedly be seen to be done” is what was of fundamental importance as per Lord Hewet while explaining what entails Justice. In India, due to delays in the Justice system, “the situation today is so grim that if a poor is able to reach the stage of a high court, it should be considered as an achievement,” as per Hon’ble Justice B.P. Singh, a former Judge of the Hon’ble Supreme Court. Securing legal Justice for all citizens is one of the critical mandates of the Indian Constitution. This has been explicitly spelt out in Article 39 A of the Constitution, which directs the state “to secure equal justice and free legal aid for all its citizens.”

In 2011, 32 million (3.2 crores) cases were pending in the Indian High Courts and subordinate courts, while 56,383 cases were pending in the Supreme Court. Of these, the Supreme Court of India had 39,780 civil and criminal pending cases at the end of 2011. In 2011, 74% of the total 3.2 crore cases were under five years old. Similarly, 20,334 out of the 56,383 pending cases in the Supreme Court were less than one year old. Establishing the fast-track courts and transferring 39.23 lakh cases to them in 2011, most of which had been disposed of in good time, has given some respite. Still, the problem of delayed justice and the Indian Nightmare of waiting for justice continues unabated.

So what is Justice? Black’s Law Dictionary states, “Justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government.” In the old English practice of Common Law, Justice is defined as “To do justice, to see justice done; to summon one to do justice.” It is sometimes presented as Justice under the prevailing law. But it has nothing to do with Justice at all {What is Justice?: Justice, Law, and Politics in the Mirror of Science, Hans Kelsen}. From Plato and Aristotle to Luke XIV, modern Jurisprudential minds like Bentham, Austin, and Hans Kelsen have all struggled to define Justice completely. To me, Justice is a human longing for a just, equal, and stable society that is free, democratic, and tolerant, where a person is served speedy remedy when he seeks it.

References to a speedy trial date back to the twelfth century and the Assize of Clarendon, followed by its presence in the Magna Carta of 1215, as well as in the famous work of Sir Edward Coke on this subject and had been present in English law for over half a millennium { LewisLeNaire, Vermont v. Brillon: Public Defense and the Sixth Amendment Right to a Speedy Trial}. In 1979, the Indian Supreme Court, referencing the American Constitution’s Sixth Amendment, held that defendants had a fundamental right to a speedy trial. Written by Justice P.N. Bhagwati, the HussainaraKhatoon v. Home Ministry (1979) opines for the first time that a defendant had a fundamental right to a speedy trial under Article 21 of the Indian Constitution. In MantooMajumdar v. State of Bihar, the two under-trial prisoners had been in jail for seven years without filing a charge sheet before the Court. Justice Krishna Lyer held it to be a gross violation of Article 21 and directed their release on their bond without sureties. In KadraPahadiya (I) v. State of Bihar, the Court remarked that the right to a speedy trial had remained a paper promise and was grossly violated in this case. This case involved the detention of four boys for more than eight years. Further, the Court in KadraPahhdiya (II) v. State of Bihar stated that it had the power to give necessary directions to the State Government and appropriate authorities to secure this right for the accused. In one of the most celebrated cases of Speedy Trials, the Court in SheelaBarse v. UOI pointed out that the effect of the violation of the right to Speedy Trial was that the prosecution itself was liable to be quashed.

Various committees and Law Commission reports have pointed out the abysmal state of affairs regarding a delay in disposing of cases by the Indian Judiciary and its recommendations. Quoting Malimath committee, “Taking more than three years (sometimes even ten years) amounts to denying fair trial. Speedy trial is a right of the accused that flows from Article 21 as held by the Supreme Court. If the accused is acquitted after such a long delay, one can imagine the unnecessary suffering he was subjected to. Often, such inordinate delay contributes to the acquittal of guilty persons either because the evidence is lost or because of a lapse of time; the witnesses do not remember all the details, or the witnesses do not come forward to give true evidence due to threats, inducement or sympathy. Whatever the reason, it is justice that becomes a casualty.”

Clearly, the courts understand a thorough need for a speedy trial, but why are there inordinate delays? The biggest reason cited is the vast population of India and its Judge-to-people ratio, which is 15 Judges for every one million people and is the lowest in the world. The other often cited reason is the adversarial criminal law system practised in India compared to France or Germany. Then, there is procedural laxity and human errors. But whatever the case, it’s high time that the Judiciary in this county wakes up and smells the proverbial coffee. Otherwise, the People of this Great Country will witness another social revolution.

Suggested Measures for Speedy Trial in India

1. 6 days/week working of courts with double shifts wherever possible. 2. Increase the retirement age for Judges to 70 years with an extension in SC by another two years. 3. One-time Short Service Commission for retired Judges for five years to manage pendency 4. Strict misuse guidelines for top crime cases will be reviewed every five years. 5. Civil cases must have a WS, Rejoinder, and Replication process completed within 15 days of each at the registrar level in all courts. 6. Video/Audio recording to be made mandatory in all courts 7. The right to Speedy Justice is a fundamental right, with penalties on the State for trials lasting more than five years. If the accused is acquitted after five years, the accused will be treated as a victim and protected by the State.

Remember our fight is with the Delay in Judiciary, not with the Judiciary (GulshanPahuja, Fight 4 Judicial Reforms)

Citations:

What is Justice?: Justice, Law, and Politics in the Mirror of Science, Hans Kelsen

Identify a Socio-legal Problem of your choice and present a Research Design for a solution to this problem Dr Ketan Govekar

Air 1976 J. “Making Justice Speedy, Effective And Substantial” By Hon’ble Sri Justice C. Kondaiah

Air 1994 J. ‘How To Clear The Backlog Of Arrears In Cases In Courts’ By J. Mohd. Shamma

Air 1994 J. ‘Legal Reforms For Speedy Trial’ By M. Veerabhadra Rao, Advocate

DELAY IN PROCESS, DENIAL OF JUSTICE: THE JURISPRUDENCE AND EMPIRICS OF SPEEDY TRIALS IN COMPARATIVE PERSPECTIVE JAYANTH K. KRISHNAN AND C. RAJ KUMAR

INORDINATE DELAY VERSUS SPEEDY TRIAL: AN INDIAN EXPERIENCE by S. N. Sharma

Committee on Reforms of Criminal Justice System, March 2003 (Malimath Committee)

LAW COMMISSION OF INDIA Need for Speedy Justice – Some Suggestions, April 2009

Lewis LeNaire, Vermont v. Brillon: Public Defense and the Sixth Amendment Right to a Speedy Trial