“Delays render the common man’s knock on the temple of justice- a frustrating experience. Litigants are not able to lead normal lives being unsure of the verdict in their case.’’
- H.E. PratibhaDevisinghPatil, Former President of India
“Justice delayed is justice denied” this phrase is somehow inherently associated with the functioning of Indian Judiciary system. Being a law graduate I always feel that there is a requirement of focusing on certain important aspects of the application of the law for the society. One thing that strikes my imagination is, piling up of court cases in India and it’s implication of denial of basic human right that is to be expected in democratic society. It is a question of efficiency and effectiveness as the way judicial proceeding takes place in the country. Indian courts has large backlog of cases and according to a Chief Justice of Delhi High Court, it would take 466 years to clear backlog of cases piled in the Delhi HC, if system works with same efficiency. Andhra Pradesh High Court judge, Justice V VRao alsoemphasized that Indian Judiciary would take 320 years to clear the backlog of 3.2 crore cases pending in various courts including high courts in the country.
According to Supreme Court of India, people are losing faith in judiciary in grave sense, creating big threat to constitutional and democratic governance of the county. Courts rebuked government on only talking about fighting the pendency of 2.77 crore cases but doing nothing on the ground.
A bench of Justices A K Ganguly and T S Thakur was unsparing in its comments while candid in acknowledging the woes - large number of vacancies in trial courts, unwillingness of lawyers to become judges, failure of the apex judiciary in filling vacant HC judges posts and the dragging of feet by the Centre in keeping its promises. On the vacancies in HCs, the bench said, "The Allahabad High Court is the largest high court but 50% of judges' posts are lying vacant. It is an area of grave concern. People are getting more and more awareness of their rights and want speedy justice. The courts cannot stop filing of cases on the ground that there are vacancies. But the vacancies in the HCs are not getting filled. This is posing grave threat to constitutional and democratic governance system as people are resorting to extra-judicial methods to sort out their disputes."
Looking at the grave problem, UPA -2 Government announced the vision document assuring to appoint 5,000 ad-hoc judges to deal with the pendency of 2.77 crore cases in the trial courts. Three years have passed, except announcement nothing has been done. This scheme is wholly unworkable as lawyers are not interested in joining judiciary and they will not surely take the ad-hoc position to dispense justice on daily wages.
Amicus curiae and senior advocate GopalSubramaniam, who as Solicitor General had contributed to the drafting of the Vision Document in 2009 when M VeerappaMoily was the law minister, joined the bench in criticizing the government. "When the government says it respects the judiciary and its independence, there is a hidden line in it. The courts are not being given importance that is why the justice dispensation system is in such disarray," he added. However, it wanted to seek answers from the government on amicus curiae's suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Centre to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.
Outspoken RTI activist-turned-Information Commissioner (IC) Shailesh Gandhi slammed judicial and quasi-judicial authorities for the tardy pace of disposal adding that citizens are not “immortal”. “Judicial and Quasi-judicial authorities don’t think timeliness is important. Cases remain pending for 15-20 years. Citizens and issues are not immortal but no one seems to give importance. Targeting government inefficiency at delivery of services, Gandhi said scathingly, “It is easier to find God than government today." He added that simple steps like computerization of records would bring down corruption by 30% making it difficult to use excuses like the file is "lost or damaged".
Lack of Judges drives up pendency rates
Lack of judges is one of the causes of judicial backlog. Cases go on and on but no final decision comes out. Senior Lawyers opined that one of the main problem is the insufficient number of judges in proportion to the growing number of cases. Many also misuse the system through the adjournments. Activist points out urgent need to raise ratio of judges per million people current 11 to at least 50. As an example of legal delay, activist YogacharyaAnandji cited his own case, where “documents went missing several times” and “poor police investigation” slowed down the case for years. “My father was killed in an accident in 1980. But the verdict came only in 2007 and we received compensation from the Motor Accident Claims Tribunal in 2009,” he said.
Increase in the courts would not only help to reduce backlog
Looking at the judicial backlog, some of the experts have suggested to increase the no of courts to reduce the judicial backlog. But I am of the opinion that this increase solely will not help to reduce the big no of cases. This is evident from the information required through the Right to Information application filed in Metropolitan Magistrate in the Mumbai City.
Following are the figures of pending cases in Metropolitan Magistrate of Mumbai City
For 6-10 years (Filed from 2002 to 2006) – 74,123
For 11-20 years (Filed from1992 to 2001) – 47,270
For over 20 years (Filed in and before 1991) – 15,366
Government making lot of effort to increase the number of courts but problem of delayed justice continues to plague the city’s legal system. Figures accessed through RTI reveal that 15,366 cases that are 21 years or older were pending before metropolitan magistrate’s courts in the city as on March 31, 2012. Legal experts and activist blamed the high pendency rate on several reasons.
As per the 230th Law Commission’s Report submitted on August 5, 2009 under the Chairmanship of Dr. Justice A R Lakshmanan, Pendency is a normal feature of any system but is assuming great proportions in courts. This will necessitate courts to prescribe time-limits for all cases. To deal with this, there can’t be one prescribed limit, but the kinds of cases need to be identified and prioritized. So setting timestandardsis essential and it will vary for different cases, and also for different courts depending on their disposal-capacity. This will be necessary to assess the performance of the courts and judicial accountability.
Right to Speedy Trial under Article 21 of Constitution of India
Article 21 of Constitution of India talks about “Right to personal life & liberty”. This right is the most significant and useful right given in our constitution. Indian Judiciary many times acted actively for welfare of the society interpreting this article in broader terms. In other term we can say Judicial Activism of Indian Judiciary. With the passage of the time and growing need of the society, Judiciary goes beyond the provisions given in law and makes the broad interpretation of law through the Judicial Activism. This way Judiciary play crucial role in protecting fundamental rights of the citizens when Legislative and Executive failed to do their duties.
Woodrow Wilson (USA) said that the “Constitution is not mere a lawyers’ documents, It is the vehicle of nation”. The Indian Supreme Court has created major reforms in the protection of human rights. Taking a judicial activist role, the Court has put itself in a unique position to intervene when it sees violations of these fundamental rights. In India the guardian of democracy is not the legislative wisdom but the wisdom of the highest court of land. The court has acted as protector of workers and at time played the role of legislator where labour legislation is silent or vague.
‘Right to life’ and ‘personal liberty’ is the modern name for what have been traditionally known as ‘natural right.’ It is the primordial rights necessary for the development of human personality. It is the moral right which every human being everywhere at all times ought to have simply because of the fact that in contrast with other beings, he is rational and moral. It is the fundamental right which enables a man to chalk out his own life in the manner he likes best. Right to life and personal liberty is one of the rights of the people of India preserved by the Constitution of India, 1950 and enforced by the High Courts and Supreme Court under article 226 and 32 respectively.
Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very existence without which we cannot live as human being and includes all those aspects of life which go to make a man's life meaningful, complete and worth living. It is the only article in the Constitution which has received the widest possible interpretation. Under the canopy of Article 21 so many rights have found shelter, growth and nourishment.
The right to life and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters which contributed to life with dignity. Under this doctrine the Court will not just examine whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a fair, just and reasonable manner. This has meant, for example the right to speedy trial and legal aid is part of any reasonable, fair and just procedure. Further, when there is inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not only against actual proceedings in court but also against police investigation.
HussainaraKhatoon vs. Home Secretary, State of Bihar (AIR 1979 SC 1360)
The Supreme Court held in this case that speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in art. 21 of the Constitution and any accused who is denied this right of speedy trial is entitled to approach Supreme Court under art. 32 for the purpose of enforcing such right and this Court in discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused. Supreme Court, therefore, in order to exercise this power and make this fundamental right meaningful to the prisoners in the State of Bihar request the High Court to inform as to how many Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges are there in each district in State of Bihar and what is the number of cases year wise pending before each of them. The High Court will also supply information to this Court as to whether having regard to the pending files before the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges and the norms of disposal fixed by the High Court there is need for any Additional Courts in any of the districts and if there is such need whether steps have been taken by the High Court for establishing such Additional Courts. If no steps have been taken so far, the High Court may immediately address a communication to the State Government stressing the need for creation of Additional Courts and requesting the State Government to take necessary action for setting up such Courts and appointing Judges to man such Courts and the State Government, Court is sure, will take the necessary steps for this purpose.
Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the International Covenant on Civil and Political Rights (ICCPR) which lays down that everyone is entitled “to be tried without delay” and Article 16 of the Draft Principles on Equality in the Administration of Justice which provides that everyone shall be guaranteed the right to prompt and speedy hearing the Court directed the release of all those under trials against whom the police had not filed charge sheets within the prescribed period of limitation. Such persons were directed to be released forthwith as any further detention of such under trials would be according to the court, a clear violation of Article 21.
Marathon like cases really violating the person’s Right of personal life and liberty enshrined in the Article 21 of Constitution of India. Now the time has arrived when people are asking for speedy trial of cases. They do not want their next generation to get the verdict of cases which they instituted.
There may be tussle between the two school of thought one is “Justice Delayed is Justice Denied” and other one is “Justice Hurried is Justice Buried”. Former says that there is no meaning of judgment coming after the decades having no importance at that time and later says that if justice is done hurriedly, no proper justice can be done if there are not sufficient evidences on the records to arrive at the right decision.
This is Part I of the column.
Kalpesh Kumar L Gupta is an Academic Associate at Indian Institute of Management (IIM) Ahmedabad.