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SPEEDY DISPOSAL OF CASES BY HIGHER JUDICIARY1

Indian Judiciary is the only temple worshipped by every citizen of this nation regardless of the religion, caste, sex or place of birth Justice V.R. Krishna Iyar

INTRODUCTION The most challenging problem facing the administration of justice in India is the backlog and resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme Court. This problem has been the subject of numerous reform efforts and proposals focusing on increasing judicial strength (e.g., centralism, increased numbers or improved technology), changes in procedure (e.g., plea bargaining, eliminating amended complaints), and experiments in informal justice (alternative dispute resolution, the Lok Adalat movement, village arbitration). Speedy trial as such is not mentioned as a specific Fundamental Right in the Constitution. The Criminal Procedure Code does not guarantee specifically any right to speedy trial. Nor is there any provision prescribing the maximum period for which a magistrate can keep an undertrial in jail without trial. Nevertheless, the Supreme Court has recognised the same to be implicit in the spectrum of article 21 and has derived the right of an accused to a speedy trial from Art.21. Quick justice is now regarded as sine qua non of Art.21.2 Supreme Court has laid great emphasis on speedy trial of criminal offences, and has emphasized: It is implicit in the broad sweep and content of Article 21.3 The right to speedy trial is first mentioned in the English document- the Magna Carta. This philosophy was adopted in the Indian Constitution, but 61 years after its promulgation it is realised that the goal sought to be achieved is a far-off peak with an astounding 3.22 crore cases pending before the courts at various levels. The purpose of speedy disposal of criminal cases is to safeguard the innocents from undue punishments and unnecessary vexation form

Muhammad Nizam Ashraf Khan, Assistant Professor, Institute of Law, Nirma University, Ahmedabad, Gujarat. For any further comments or clarifications, please mail at nizam.khan@nirmauni.ac.in. 2 Prof. M.P. Jain, Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa publication, Nagpur, 2008) at pg. 1096. 3 Hussainara Khatoon v. Home Secretary, State of Bihar (I), AIR 1993 SC 1892.

accused but prolonged pendency has created a barrier in the mission and led to mental and economic pressure on litigants. Speedy Justice is Social Justice Crime (offence) must be punished within a reasonable time of its commission, for it to serve twin purposes of deterrence to like-minded others and satisfaction to society at large that the guilty has been properly punished.4 If Government, Judges, Advocates and litigants all cooperate, delay in the disposal of cases can be wiped out, or, at any rate, greatly reduced.5 One can gauge the enormity of crisis, when the then Delhi High Court Chief Justice A P Shah said it will take 466 years to dispose of all the criminal cases pending before the Delhi High Court if the present rate of disposal continues.6 On March 31, 2008 there were 2,324 criminal appeals pending before the division benches of Delhi High Court, from which 214 appeals were disposed of, says the annual report for 2007-08, of the Delhi High Court7. By seeing this position alone we can draw an idea of the position of the Indian legal system. This is the position of a developed state in our country; the condition of other States is not very different but is even worse. Whether it is acceptable or not, the statistical observation at the present rate of disposal, assuming the filing of new cases to be the same, would take the court approximately 466 years to wipe out the pendency of the 2,324 appeals. Supreme Court of India, under the signature of Honble Chief Justice of India issues a newsletter which has mentioned the current position of pendency right from the Supreme Court to the Lower Courts. Till the end of December 2010, the total pending cases in the Indian courts are 3, 22, 25,535 cases, including about 54,562 before the Supreme Court in which 10,370 are criminal cases. There are 42, 17,903 cases before the high courts, including 8, 81,647 criminal cases.8 The bulk of the pending cases are in the sub-division and district courts amounting to more than 2.79 crore, out of which more than 2 crore are criminal cases. The total pendency is of
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Arun Mohan, Justice, Courts and Delays, 1st Edition 2009, Volume 1, (Universal Law Publishing Co., New Delhi) p. 6-7. 5 H.M. Seervai: Laws delays and remedies in Evoking H.M. Seervai (ed. Feroza H. Seervai) (Universal Law Publishing Co., New Delhi, 2005) p. 175. 6 Available at http://www.newsofdelhi.com/delhi-news/high-court-new-delhi-466-years-behind-schedule (Last visited on April, 2011). 7 Available http://delhihighcourt.nic.in/writereaddata/upload/AnnualReport/AnnualReportFile_SGNPJ8JT.PDF (Last visited on April, 2011). 8 Available at http://www.sci.nic.in/courtnews/2010_issue_3. (Last visited on August, 2011).

more than 30 million in which criminal cases forms a big percentage, amongst these numerous are pending for more than 20 years. As per the United Nations Development Program report pendency before 2 to 3 years was little more than 20 million but now it has crossed the mark of 30 million so it can be inferred that number of pendency is increasing daily. Nearly a quarter million are in jails as under trial prisoners, many of them are in jails for more than 5 years. Due to the pending cases, India is losing more than Rs 2,500 crore in manpower per annum. If you take two litigants, two witnesses engaged in a case and a case is listed twice in a year, the country is losing 25 crore productive working days per annum. Suppose they would have earned Rs 100 per day (MGNREGA wage as standard), the country would be losing Rs 2,500 crore in a year.9 Major Reasons for Congestion in Courts Honble Justice V.S. Shirpurkar of Supreme Court of India once said that every sixth person in the world is an Indian and most of them are passionate about litigations. The greatest cause of delay is adjournments obtained by fashionable Counsel for their personal convenience.10 The Counsel gets the adjournments of cases because they are in other courts, and Judges grant adjournments contrary to the express provision of the amended Order 17, Rule I which says that the fact that a counsel is in another courts is not a ground for adjournment and the fact that a counsel is ill is not a ground for adjournments if there was time to return the brief and brief another counsel. The other cause of encumbrance in speedy disposal of cases is that our Apex Court that is Supreme Court has added to its burden by allowing a party to file a Special Leave Petition (SLP) from the judgment of a single judge, thus obliterating the distinction between Special Leave and leave as a matter of right. No doubt this has been done to save expense and time, but the Supreme Court board gets so cluttered up that matters remain undecided for years. When applications for Certiorari Writ threatened to bring the U.S. Supreme Court to a grinding halt, Chief Justice Taft obtained from Congress a law authorizing summary dismissal of certiorari. Our Constitution does not permit such a law being passed, but it is necessary for Supreme Court Judges to bear in mind that power under Article 136 is a reserve power on
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Available at http://www.deccanherald.com/content/83620/delivering-justice-docket-explosion.html (Last visited on August, 2011). 10 H.M. Seervai: The administration of Justice in The Seervai Legacy, (ed. Feroza H. Seervai) (Universal Law publishing Co. Pvt. Ltd., New Delhi, 2001) p. 12-14.

facts to prevent not this or that injustice but a great miscarriage of justice- that is one which shakes the foundation of justice. Delay in delivering judgment Delay in delivering judgment is an important contributory cause for delay in litigation and to the law being unsatisfactorily laid down. Almost all members of the bar agree that judgment delivered after one year, after 18 months, and two years are most unsatisfactory, for all the effect of oral arguments on points of importance and on points of detail become obliterated by time. If the Courts of first instance in the High Court can deliver judgments immediately after the hearing, if the Court of Appeal in England reserves judgment only in 5 percent of cases, it ought not to be difficult for the Supreme Court to deliver reserved judgments within reasonable time. Parties, Counsel and the public cannot but be dissatisfied when judgments are delivered after a year or more. These judgments have two consequences: First, the fact that a judgment on an important question of law is reversed by the Supreme Court leads to similar matters in the High Courts being put off till the Supreme Court judgment is delivered. Secondly, delay may lead to vital parts of the arguments being overlooked and may give rise to a review application. Wasteful use of Judicial Power Heavy Civil and Criminal appeals should be allotted to Judges well in advance and preferably to Judges who are familiar with the law involved in the case. To give a heavy civil appeal to a Judge who has extensive knowledge of Criminal Law, but relatively small knowledge or experience of Civil Law is not only a wasteful use of Judicial power but must lead to a failure of justice. The Law Commission has characterized the failure to utilize the special aptitudes of Judges for special work as a failure to make full use of judicial power. Even when heavy appeals are allocated to Judges familiar with the law involved, they should be allocated the appeals well in advance, for it is a grave hardship to counsel to find that the Judge has come to the court with a heavy record, involving both facts and law without having read the record and it must slow down the dispatch of business if the Judge has read the record once, only 6 or 7 days after the case began. Time is wasted, Counsel put to great disadvantage and the judgment must be very unsatisfactory when the Judge has heard the arguments without knowing the record on which those arguments were founded.

Delay in High Courts One of the consequences of the senior members of the Supreme Court Bar going to various High Courts is that grave delay takes place in the High Courts because of constant adjournments to accommodate those counsels. In Delhi, no senior counsel who is busy in Special Leave Application on a Monday and it would now apply to special leave application on Friday would agree to a date being fixed on those days on the ground that he is busy in the Supreme Court. Once the Supreme Court has set an example by enforcing O.17, Rule 1, that disciple could be enforced on the High Courts by making it clear that the adjournments granted contrary to the terms of O.17, R.1 will become the subject of adverse comments by the Supreme Court in judgments which reach the Supreme Court. General Observations One of the causes of the delay in disposing of cases is the fact that even when vacancies in the post of Judge are known, steps are not taken in advance to fill that post and months are allowed to pass while the post remains vacant. Secondly, while Government complains loudly of delay in disposing of matters, Government is the greatest defaulter in complying with the orders of the courts for filing affidavits or other documents. As of 1st February 2011, there were 2 vacancies in the Supreme Court of India, 291 vacancies in the High Courts and 3170 vacancies in the District & Subordinate Courts.11 With the insertion of new Chapter XXI-A in the Code of Criminal Procedure 1973, by Act 2 of 2006, the concept of plea bargaining became a reality and part of Indias criminal jurisprudence. The practice of plea-bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea-bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. In theory, plea-bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. It has long been hypothesized that one of the merits of this system is that it helps the court to manage its load of work and hence it would result in

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Supreme Court Issue, available at http://www.sci.nic.in/courtnews/2010_issue_4 (Last visited on August, 2011).

reduction of backlog of cases. The extent of its success in this respect has not yet been documented.12 Repeated adjournments are asked for and adjournments are obtained, thus delaying the proceedings. It is true that the machinery of Government moves slowly and that is the reason why a longer time for filing affidavits is given to Government than would be given to a private party. But once the time has been asked for and has been given, it should be enforced both on Government and on private parties. And if the Court takes a firm stand for enforcing its directions as it should, and hears the matter as though the affidavit had not been filed, it would in the long run greatly speed up the disposal of cases. CONCLUSION In the end I would like to say that our justice delivery system in spite of innumerable drawbacks and failings, still commands high esteem and the citizens has placed the judiciary on a high pedestal. Their faith is our strength. It has to be maintained at every cost. No institution can take for granted the respect of the community. It has high expectations and constantly demands proof of its utility. There should be sustained cooperation from all the sides Bar, Bench and also from the society at large like that the society should also understand that they should not misuse the justice system by bringing frivolous and trivial matters to the court and resolving them outside the court by adopting other methods like mediation , conciliation etc. The Indian Judiciary is more active as compared to other Judiciaries in the world but its speed of delivering justice needs to be accelerated, to make it better. A commitment and proper work culture can solve at least half the problems, if not more. We don't think you would have to wait four centuries to have a case decided. There must be following measures that should be taken for the speedy disposal of criminal cases: A mechanism should be developed to make corruption free Judiciary. More competent judges should be appointed. Investigation agencies should be separated from Law & order maintaining agencies.

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For scholarly critiques, see Singh (2009) and Agarwal (2006). Among cases, see Thippaswamy v. State of Karnataka, 1976 CrLJ 1527; Bhagwati J. observed It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly.

Investigation agencies should be made more equipped and more powers should be conferred to them. Police should be made a public police and not states police. The working hours and days of the Courts should be increased. The Supreme Court and the High Courts should be opened even on Saturdays. The things like Plea bargaining should be properly implemented and promoted effectively. The recommendations of various law commissions should be seriously implemented. More ad-hoc courts should be set up. The system of e-filing of Litigations should be promoted. Introduction of internet technology in reduction of paper work. Introduction of specialized as well as fast-track courts. Development of a case management system to separate and allocate time to simple or complex cases. Developing a system to bypass regular courts, Encouraging the check and balance process, and Need for knowledge based systematic research.