SPEEDY JUSTICE AND INDIAN CRIMINAL JUSTICE

SYSTEM

D.P.SHARMA

Emphasising 'speedy justice' as one of the key elements of reform

in the Indian Judicial System-more particularly Indian Criminal
Justice System-the author surveys the attempts made by different
agencies from time to time to promote provision of 'speedy justice'
to the accused. Besides facilitating clarification of the concept
of 'speedy justice' by analysing its evolution and relevance, he
incorporates in the discussion !suggestions, guidelines and
recommendations given by the Supreme Court of India, Law
Commission, and several Committees constituted for the purpose,
along with the story of the development and improvement of the
new Code of Criminal Procedure, 1973 and amendments thereto.

INTRODUCTION

ONE OF the terms of the present (15th) Law Commission of India (Chairman:
Justice B.P. Jeevan Reddy, Retd.) is to keep under review the system of judicial
administration to ensure that it is responsive to the reasonable demands of the
ti.mes and in particular to secure: (a) elimination of delays, speedy justice, clearance
of arrears and reduction of costs to secure quick and economical disposal of cases
without affecting the cardinal principle that decisions should be just and fair; (b)
simplification of procedure to reduce and eliminate technicalities and devices
causing delay so that it operates not as an end in itself but as a means of achieving
justice; and (c) improvement of standards of all concerned with the administration
of justice. This means that the Government of India remains concerned with the
need of speedy justice and fair justice.

CONTRIBUTION OF THE LAW COMMISS!ON

In 1958, the First Law Commission in its Fourteenth Report on Reform of

Judicial Administration made extensive recommendations on the reform of
criminal justice system. These recommendations were the result of proper
examination by the Commission of the subjects of organisation of criminal
courts, police investigation, prosecuting agencies, delays in criminal trials,
committal proceedings, criminal appeals, revisions and inherent powers,
 SPEEDY JUSTICE AND CRIMINAL JUSTICE SYSTEM 357

procedure for trial of perjury cases, etc. To give effect to some of the
recommendations, the Code of Criminal Procedure, 1898, was amended.
Again, the Government of India asked the reconstituted Law Commission to
undertake a comprehensive review of the Code of Criminal Procedure. The
Commission submitted a Report on the first 14 chapters comprising Sections
1 to 176 of the Code. The Fifth Law Commission concluded its Report, on
Section 177 and, in 1969, rendered the 41 st Report representing a
comprehensive review of the Code. As a result, Parliament enacted the Code
of Criminal Procedure, 1973 which came into effect on April 1, 1974.
Subsequent to the coming into force of the new Code, the Law Commission
submitted several reports on specific subjects relating to the criminal justice
system. The Code of Criminal Procedure, 1973 underwent a number of
amendments in 1974, 1978, 1980, 1983, 1988, 1990, 1991 and 1993 for specific
purposes to remove certain difficulties experienced in its working.
The Code of Criminal Procedure (Amendment) Bill, 1994 contains 49
clauses. The Law Commission had also undertaken an intensive study of the
Code with a view to eliminate the problems and bottlenecks leading to delays
in the disposal of criminal cases as well as other remedial measures. The
Commission set about its task by focussing on a number of important areas in
the Code which needed redesigning and restructuring. One of these areas is
'speedy justice'.

CONCEPT OF SPEEDY JUSTICE

Speedy justice is always been the sine qua non of criminal jurisprudence.
It is an important safeguard to prevent undue and oppressive incarceration. It
minimises anxiety and concern accompanying the accusation. It also limits
the possibility of impairing the ability of an accused to defend himself. There
also remains a keen societal interest in providing speedy justice. The right of
speedy justice has been actuated in the recent past. The courts also, in series
of decisions, have opened new vistas of fundamental rights.
It was the Virginia Declaration of Rights of 1776 which incorporated into it
the concept of speedy trial for the first time. This concept travelled from there
into the Sixth Amendment to the Constitution of the United States of America to
bring it into effect that "in all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial". It is worth mentioning in this connection that
there is a Federal Act of 1974 in the USA, which is called Speedy Trial Act. This
Act establishes a set of time-limits for carrying out the major events, e.g.,
information, indictment, arraignment, in prosecution of criminal cases. Similar
provisions exist in Canadian Laws also. The right to speedy trial is also recognised
as a common law right, flowing from the Magna Carta. This is the view in UK,
USA, Canada and New Zealand, which is not accepted in Australia. However,
this right, whether under common law or otherwise, does not provide an absolute
relief to be given under various well settled guidelines evolved in the judicial
decisions. Further, under Article 14 of the International Convention on Civil and
358 D.P. SHARMA

Political Rights 1966, the right to a speedy trial is provided. Similarly, Article 3
of the European Convention of Human Rights and the Sixth Amendment to the
US Constitution refer to it as a basic right.
So far as India is concerned, the right to speedy trial is an integral and
essential part of the fundamental right to life and liberty enshrined in Article 21
of the Constitution of India. The Supreme Court, while delivering its
constitutional bench judgment in the case of Abdul Rehman Antulay Vs. R.S.
Nayak declared that right to speedy trial is implicit in Article 21 of the
Constitution and, thus, constituted a fundamental right of every person accused
of a crime. In Hussainara Khatoon (I) V. Home Secretary, State ofBihar [( 1980)
I SCC 81 ], the Supreme Court observed:
Now obviously procedure prescribed by law for depriving a person of his
liberty cannot be 'reasonable, fair or just' unless that procedure ensures a
speedy trial for determination of the guilt of such person. No procedure
which does not ensure. a reasonably quick trial can be regarded as
'reasonable, fair or just' and it would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and by· speedy trial we mean
reasonably expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21 .

RIGHT TO SPEEDY TRIAL

The right to speedy trial begins with the actual restraint imposed by arrest
and consequent incarceration and continues at all stages, namely, the stage of
investigation, inquiry, trial, appeal and revision so that any possible prejudice
that may result from impermissible and avoidable delay from the time of the
commission of the offence till it consummates into a finality, can be averted.
In this context, it may be noted that the constitutional guarantee of speedy
trial is properly reflected in Section 309 of the Code of Criminal Procedure.
The Supreme Court Guidelines
In A.R. Antulay's Case, the Supreme Court laid down a number of
propositions meant to serve as guidelines. These propositions are:
1. Fair, just and reasonable procedure implicit in Article 21 of the
Constitution creates a right in the accused to be tried speedily. Right
to speedy trial is the right of the accused. The fact that a ·speedy trial
is also in public interest or that it serves the social interest also, does
not make it any less the right of the accused. It is in the interest ofall
concerned that the guilt or innocence of the accused is determined as
quickly as possible in the circumstances.
2. Right to speedy trial flowing from Article 21 encompasses all the
stages, namely, the stage of investigation, inquiry, trial, appeal,
revision and re-trial. That is how, this Court has understood this right
and there is no reason to take a restricted view.
 SPEEDY JUSTICE AND CRIMINAL JUSTICE SYSTEM 359

3. The concerns underlying the right to speedy trial from the point of
view of the accused are:
(a) the period of remand and pre-conviction detention should be as short
as possible. In other words, the accused should not be subjected to
unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and
peace, resulting from an unduly prolonged investigation, inquiry
or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the
accused to defend himself, whether on account of death,
disappearance or non-availability of witnesses or otherwise.
4. At the same time, one cannot ignore the fact that it is usually the accused
who is interested in delaying the proceedings. As is often pointed out,
"delay is a known defence tactic". Since the burden of proving the guilt
of the accused lies on the prosecution, delay ordinarily prejudices the
prosecution. Non-availability of witnesses, disappearance of evidence
by lapse of time really work against the interest of the prosecution. The
prosecution, for whatever reason, also delays the proceedings. Therefore,
in every case, where the right to speedy trial is alleged to have been
infringed, the first question to be put and answered is-who is responsible
for a delay? Proceedings taken by either party in good faith, to vindicate
their rights and interest, as time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous proceedings
or proceedings taken merely for delaying the day of reckoning cannot
be treated as proceedings taken in good faith. The mere fact that an
application/petition is admitted and an order of stay granted by a superior
court is by itself no proof that the proceeding is not frivolous. Very often
these stays are obtained on ex parte representation.
5. While determining whether undue delay has occurred (resulting in
violation of Right to Speedy Trial) one must have regard to all the
attendant circumstances, including nature of offence, number of
accused and witnesses, workload of the court concerned, prevailing
local conditions and so on-what is called, the systemic delays. It is
true that it is the obligation of the State to ensure a speedy trial and
State includes judiciary as well, but a realistic and practical approach
should be adopted in such matters instead of a pendantic one.
6. Each and every delay does not necessarily prejudice the accused. Some
delays may indeed work to his advantage. As has been observed by Justice
Powell, "it cannot be said how long a delay is too long in a system where
justice is supposed to be swift but deliberate". The same idea has been
expressed by Justice White of the U.S.A. in the following words:
.... the Sixth Amendment right to a speedy trial is necessarily
relative, is consistent with delays and has orderly expedition,
360 D.P. SHARMA

rather than mere speed, as. its essential ingradients; and whether
delay in completing a prosecution amounts to an unconstitutional
deprivation of rights depends upon all the circumstances.
However, inordinately long delay may be taken as presumptive proof
of prejudice. In this context the fact of incarceration of accused will
also be a relevant fact. The prosecution should not be allowed to
become a persecutor. But when does the prosecution become
persec.utor, again depends on the facts of a given case.
7. We cannot recognise or give effect to, what is called the 'demand'
rule. An accused cannot try himself; he is tried by the court at the
behest of the prosecution. Hence, an accused's plea of denial of speedy
trial cannot be defeated by saying that the accused did at no time
demand a speedy trial. If in a given case, he did make such a demand
and yet he was not tried speedily, it would be a plus point in his
favour, but the mere non-asking for a speedy trial cannot be put against
the accused. Even in the USA, the relevance of demand rule has been
substantially watered down in a number of cases.
8. Ultimately, the comi has to balance and weigh several relevant factors-
'bafancing .test' or 'balancing process'-and determine in each case
whether the right to speedy trial has been denied in a given case.
9. Ordinarily speaking, where the court comes to the conclusion that right
tp speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, shall be quashed. But this is not the
only course open. The nature of the offence and other circumstances
in a given case may be such that quashing of proceeding's may not be
in th_e interest of justice. In such a case, it is open to the court to make
such other appropriate order-including an order to conclude the trial
within a fixed time where the trial has not been concluded, as may be
deemed just and equitable in the circumstances of the case.
10. It is neither advisable nor practicable to fix any time-limit for.trial of
offences. Any such rule is bound to be qualified one. Such rule cannot
also be evolved merely to shift the burden of proving justification on
to the shoulders of the prosecution. In every case of complaint of
denial of right to. speedy trial, it is primarily for the prosecution to
justify and explain the delay. At the same time, it is the duty of the
court to weigh all the circumstances of a given case before
pronouncing upon the complaint. The Supreme Court of the USA too
has repeatedly refused to fix any such outer time-limit inspite of the
Sixth Amendment. Nor do we think that non-fixing of any such outer
time-limit infatuates the guarantee of right to speedy trial.
11. An objection based on denial of right to speedy trial and for relief on
-that account, should first be addressed to the High Court. Even if the
High Court entertains such a plea, ordinarily it should not stay the
proceedings, except in a. case of grave and exceptional nature. Such
 SPEEDY JUSTICE AND CRIMINAL JUSTICE SYSTEM 361

proceedings in High Court must, however, be disposed of on a priority

basis. However, these prepositions wer~ held by the court to be not
exhaustive. According to the Court, "it is difficult to foresee all
situations. Nor is it possible to lay down any hard and fast rules."
The Supreme Court in Supreme Court Legal Aid Committee V. Union of
India, while dealing with NDPS Act and Section 309 Cr. P.C., has given a
number of directions. The Court has also given several directions with regard
to pending cases. Lastly, the Supreme Court also stated: "We grant liberty to
apply in case of any difficulty in the implementation of this order (with regard
to the directions in the pending cases)".
Thus, it is evident that the Supreme Court in a series of judicial
pronouncements has emphasised and re-emphasised that speedy trial is one
of the facts of the fundamental right to life and liberty enshrined in Article 21
of the Constitution and that the law must ensure reasonable just and fair
procedure.
Some Committees on Speedy Justice
Some Committees, namely, Rankin Committee (1924) to deal with the
question of delay in the disposal of civil cases, both in the High Courts and in
the subordinate courts; High Courts Arrears' Committee·(J949) for inquiring·
and reporting as to the advisability of curtailing the right of appeal and revision,
the extent of such curtailment, the method by which such curtailment should
be effected, and other measures, if any, which should be adopted to reduce
the accumulation of arrears; Review Committee, (1967) to conduct a review
of the state of work in each High Court; Arrears' Committee (1969) to suggest
ways and means for reducing arrears of cases pending in the High Courts;
Committees appointed in various States, viz., the West Bengal Committee
(1949) and the Uttar Pradesh Committee (1950), to look into the problem of
delay and other matters concerning judicial administration; Arrears' Committee
{1990) to identify various causes for accumulation of arrears in High Courts;
Arrears' Committee (Supra) (1993) to suggest remedial measures for arrears
on criminal side. All the aforesaid Committees made valuable suggestions
and recommendations to provide speedy and fair justice to accused persons.
National Police Commission
The National Police Commission suggested that substantial improvement in
criminal justice system could be effected by reducing the institution of fresh cases,
withdrawing old cases from courts according to some accepted norms, and
expediting the disposal of pending cases by simplifying the procedure.
Suggestions and Recommendations of the Law Commission of India
The Law Commission made a large number of suggestions and
recommendations in the past in its Thirty-Second Report on Section 9 of the
Code of Criminal Procedure (1967); Thirty-Third Report on Section 44 of the
Code of Criminal Procedure ( 1967); Thirty-Fifth Report on Capital Punishment
( 1967); Thirty-Seventh Report on Sections 1 to 176 of the Code of Criminal
Procedure (1967) and Forty-First Report on.the Code of Criminal Procedur~;
362 D.P. SHARMA

(1969) to remove anomalies, ambiguity of the criminal justice process and to

suggest ways and means of speedy trials and avoiding delays.
Keeping in view the recommendations made by the Law Commission,
the new Code of Criminal Procedure, 1973 has been enacted taking into
consideration the need for speeding up the disposal of criminal cases on the
following aspects:
1. The preliminary inquiry, otherwise known as committal proceedings,
is abolished, since it causes delay.
2. The jury trial is abolished.
3. A provision .is made for summons procedure for trial of offences
punishable with imprisonment up to two years.
4. A provision is made for the summons procedure for all summary trials
for offences punishable with imprisonment up to two years.
5. The powers of revision against interlocutory orders are taken away.
6. The compulsory stoppage of proceedings by a subordinate court on
mere intimation from a party of his intention to move a higher court
for transfer of the case is omitted.
7. A provision is made for payment of costs by the party at whose
instance adjournments are granted.
8. A provision is made for service of summons by registered post in
certain cases.
9. In petty cases, the accused is enabled to plead guilty by post and
remit the fine specified in summons.
10. A re-trial need not necessarily be ordered in case a court of appeal or
revision discovers any error, omissions or irregularity in the charge
leading to failure of justice.
11. Continuation of part-heard cases by the successors in office in respect
of courts of magistrate is extended to courts of sessions.
Sections 167, 309 and 468 of the new Code of Criminal Procedure, 1973
synthesise the aforesaid changes particularly relating to speedy trial, and
elimination of delays in investigating and trial proceedings.
When the Law Commission reviewed the structure and jurisdiction of the
higher judiciary (58th Report), it took note of the imperative need to reduce
arrears in the higher courts.
While dealing with the question of delay and arrears in Trial Courts in
criminal cases, the Law Commission oflndia, in its 77th Report on Delay and
Arrears in Trial Courts made the following recommendations:
1. In criminal cases, it is particularly necessary that delay be eliminated
since the decision is based on oral rather than documentary evidence
and, with the passage of time, the memory of witness fades.
2. Every criminal court should keep a register showing the number of
witnesses summoned for a date, the number examined, the number
sent back and reasons for sending them back without examination.
 SPEEDY JUSTICE AND CRIMINAL JUSTICE SYSTEM 363

The tendency of some criminal courts of sending back witnesses

without examining them must be deprecated.
3. The law should be amended to enable a Sessions Judge to act on
evidence partly or wholly recorded by his predecessor.
4. At least two police officials at every police station should be set apart
for getting service of summons effected upon witnesses for cases
relating to that police station and for ensuring their presence on the
date of hearing.
5. The police quite often deliberately refrain from producing all material
witnesses on one date, the object being to clear up the lacunae in the
prosecution evidence after the defence case becomes manifest by
cross-examination. This practice is unfair and not warranted by the
Criminal Procedure Code, and results in prolongation of the trial.
6. Disposal of cases, in which there is a large number of accused, gets
delayed because one of the accused absents himself on the date of
hearing. The trial court in such contingencies should consider the
advisability of directing representation of the accused by counsel.
7. Having regard to the importance attached to the framing of the charge,
the trial magistrates should not leave it to the prosecutor to frame a
charge.
8. In recording statements of the accused under Section 313 Cr. P.C.,
the magistrates should ensure that all incriminating pieces of evidence
are put to the accused.
9. Cases in which there is possibility of death sentence should receive
priority over all other cases.
10. Where the same Judicial Officer exercises both civil and criminal
powers, normally he should not fix both types of cases on the same
day. If such a course cannot be avoided, he should set apart separate
time for civil and criminal cases.
Many more recommendations of the types given above have been made
under several Reports submitted by the Law Commission. The need of the
hour is to incorporate them in action plans to see that these become a part of
actual practices by the functioning courts dealing with criminal cases.