India courts are under great strain as the pendency, backlog and arrears grow day by day delaying justice to several litigants. The delay in expeditious disposal of a trial infringes the right to life and personal liberty guaranteed under Article 21.
Speaking at the joint conference of chief ministers and the chief justices in Delhi in April this year, Chief Justice of India TS Thakur expressed great sadness at the failure of the judiciary in India to deliver timely justice to the people of India. Addressing Prime Minister Narendra Modi who was present at the conference, the Chief Justice broke down while blaming the Centre for doing nothing to increase the number of courts and judges in the country, thus denying the poor man and under trial prisoners their rights to justice. The Chief Justice said, “Centre chose not to lift a finger to help reduce the impossible burden judges carry and aid the cause of justice delivery despite a Law Commission report in 1987 warning that the country is slipping into a crisis where the ratio of the number of judges to the population is grossly inadequate.”
Lamenting the sorry state of affairs, the Chief Justice appealed to the government, ” Not only in the name of the litigant… the poor litigant languishing in jail but also in the name of the country and progress, I beseech you to realise that it is not enough to criticise the judiciary… you cannot shift the entire burden to the judiciary.”
The victims of this ‘burden to judiciary’ are the litigants. According to Access to Justice Survey done by Daksh to find out the impact of this gargantuan backlog on the litigants, it was found that undertrial prisoners are spending more time in prison than the prescribed punishment for their alleged offence. In their study, it was found that about 28 per cent of the accused declared that they had spent more time in jail than the prescribed punishment and another 34 per cent of individuals accused of bailable offences claimed that they continue to be in jail as they do not have the means to afford the bail or guarantors to stand surety.
The Right to Fair and Speedy trial is guaranteed as fundamental right under Article 21 of the Constitution of India. The delay in expeditious disposal of a trial infringes the right to life and personal liberty guaranteed under Article 21.
“Not only in the name of the litigant… the poor litigant languishing in jail but also in the name of the country and progress, I beseech you to realise that it is not enough to criticise the judiciary… you cannot shift the entire burden to the judiciary.”
It is interesting to note here that the right to speedy trial was not included during the framing of the Indian constitution. The constituent assembly while drafting Article 21, discussed the right to life, and other issues, but the notion of a speedy trial was not explicitly included within the constitution. It was only in 1979 that the Supreme Court of India held that a speedy trial was a fundamental constitutional right for criminal defendants. This happened after emergency, and from the experience of dark emergency days emerged serious examination by the courts of the issue of undertrials languishing in jails.
In 1979, former chief Justice PN Bhagwati writing the judgement of Hussainara Khatoon v. Home Ministry, said: “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 of the Constitution. 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. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21?”
It has to be ensured that the fundamental right to a speedy trial does not remain merely a pipe dream to millions of people. In 2009, the Chief Justice of Delhi High Court released a report in which he claimed it would take 466 years for the court to clear its backlog. The implications of the backlog, has resulted in India’s prison having large number of detainees awaiting trial. According to Daksh which has details of more than 40 lakh cases pending before various courts across the country, the average pendency of any case in the 21 high courts, for this data available with them, is about three years and one month (1,128 days). An average litigant, according to them, who appeal to at least one higher court spends more than 10 years in court and with the cases going to the Supreme Court, it will continue for many more years.
“The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21?”
Former Chief Justice PN Bhagwati
According to a Law Commission Report, in all states, there is a significant backlog of cases which requires a massive influx of judicial resources even if one takes a 3-year time frame for clearing backlog. Bihar, for example, requires an additional 1624 judges to clear backlog in three years. The problem of backlogs is compounded by the fact that in some states, Courts are unable to even keep pace with the new filings, thus adding to the already huge backlog.
The ratio of judges per million population in this country is the lowest in the world. The Law Commission in its 20th Report found that India had 10.5 judges per million of population, the corresponding figure in England was 50.9, Australia 57.7, Canada 75.2 and the U.S.A. 107. Between 25 and 30 million cases are estimated to be pending across Supreme Court, high courts and the subordinate courts. The economic cost of the delay of India judiciary is pegged at 0.5 per cent of gross domestic product.
As many as 59,468 cases are pending before the Supreme Court, as of February 2016, as per the Court’s own record 1,216 date back over 10 years. The high courts have a collective pendency of 4,153,957 cases, with 777,630 of them pending for more than a decade. And, the lower judiciary, comprising district and subordinate courts, has 26,488,405 cases pending, of them majority are pending for over a decade.
Undertrials are thought to comprise a staggering seventy percent of India’s incarcerated population, According to National Crime Record Bureau, at the end of 2015, 282 076 undertrials are lodged in various jails constitution about 67.2 pr cent of total prison population. Of these 3, 599 undertrials were detained in jails for 5 years or more and another 11,451 were in jail for three to five years.
According to former Chief Justice Balakrishnan, “In an adjudicatory system, whether inquisitorial or adversarial, an expected life span of a case is an inherent part of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in dispensation of justice.”
However, one must remember that the speedy justice never means a hasty or summary dispensation of justice. The demand of justice is not only that justice should be provided but also within a reasonable time, justice should not only be done but also seems to be done. As Justice Balakrishnan says, justice delivery system is under an obligation to deliver prompt and inexpensive justice to its consumers, without in any manner compromising on the quality of justice or the elements of fairness, equality and impartiality.
The ratio of judges per million population in this country is the lowest in the world. The Law Commission in its 20th Report found that India had 10.5 judges per million of population, the corresponding figure in England was 50.9, Australia 57.7, Canada 75.2 and the U.S.A. 107.
Different Law Commission reports have dealt with the reasons of the pendency and the arrears an has given suggestions to ease the burden of judiciary. The causes for delay, as per law commission, are numerous, such as loopholes in the law itself, inefficient police investigation methods, redundant and voluminous paperwork, lack of infrastructure etc. Former Chief Justice P N Bhagwati in his Law Day speech in 1985 said: “I am pained to observe that the judicial system in the country on the verge of collapse…. Our judicial system is crashing under the weight of arrears. It is trite saying that justice delayed is justice denied. We often utter this platitudinous phrase to express our indignation at the delay in disposal of cases but this indignation is only at an intellectual and superficial level. Those who are seeking justice in our own Courts have to wait patiently for year and years to gets justice. They have to pass through the labyrinth of one Court to another until their patience gets exhausted and they give up hope in utter despair…. The only persons who benefit by the delay in our Courts are the dishonest who can with impunity avoid carrying out their legal obligations for years and each affluent person who obtains orders and stays or injunctions against Government and public authorities and then continues to enjoy the benefits of such stay or injunction for years, often at the cost of public interest.”
Both in civil and criminal law, the respective procedural codes allow for tactics of delay. According to a study, there is a cadre of delay-lawyers who proudly specialize in prolonging cases within the court system. The Adjournments in Indian courts are normal routine in criminal cases. In an article published in the media recently, it was reported that the litigants consider adjournments as the major reason for delay. The prosecutors in India manipulate the procedures in law to keep the case linger for years. Also, a large number of frivolous appeals are filed by the state against orders or judgment acquittals without proper scrutiny on behalf of the state.
During last 60 odd years, litigation has increased many times without proportionate growth in the judge strength and judicial infrastructure. At present the debate over NJAC and Collegium system of judges’ appointment has made the matter worse. Ever since the Supreme Court struck down NJAC Act, the government has been slow in appointing judges. In October this year, Chief Justice Thakur slammed the government for bringing judiciary to a halt. He said, “In Allahabad out of sanctioned strength of 165 there are only 77 judges. In Karnataka High Court, an entire floor of courts are locked because there are no judges. Once we had a situation where we had judges but no court rooms. But now there are court rooms but no judges. You may now as well close court rooms down and lock justice out. You can have the institution called the judiciary locked.” Out of the proposals submitted to the government by the SC Collegium, the government appointed 34 judges in various high courts and sent the names of 43 back to the collegium for reconsideration. However, the government has said that it is being unfairly accused of delaying appointments of judges while they are doing their best.
People approach courts to get justice from the courts with fair and speedy trail. Therefore, timely and fair justice must be delivered to them lest they should lose faith in the judiciary.
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