“The Criminal justice system, like any system designed by human beings, clearly has its flaws.”- Ben Wishaw
Rabindranath Tagore too once said, “Satan can’t enter unless there is a flaw.”
As such, the pendency of three crore cases in courts across India does indicate flaws in Indian judicial system. Such flaws negate the maxim that the role of courts in society is not merely to adjudicate disputes between parties, but also to protect the rights and liberty of individuals.
“Justice denied” means if legal redress is available for a person who has suffered some injury, but is not forthcoming in a timely manner, it amounts the same as having no redress at all.
Criminal law is based on the presumption of innocence that an accused is presumed innocent unless proved guilty by a court of law. However, the prolong pendency of a criminal trial besides impacting substantively on personal liberty of the accused, negates the presumption of innocence, particularly, if the accused remains in jail during prolong period of trial. Even if out on bail, the accused person remains under the constant fear of eventual conviction.
According ‘Prison Statistics India-2015’ Report released by the National Crime Record Bureau(NCRB), 67.2% of India’s total prison population comprises of undertrial prisoners. That means, that two out of every three prisoners in India are undertrials, viz. a person who has been charged for committing an offence but his guilt has not been convicted and is still presumed innocent. There are a large number of instances where an accused was acquitted after having spent a time more than the sentence prescribed for the offence he was accused of. In such matters who is guilty for destroying the precious years of his life. Can someone compensate those creamy days which he wasted languishing in jail, in terms of money and time? More so, the long time taken to pronounce the final verdict amounts to denying justice to both the victims and the accused.
According to official statistics, 140 cases are pending in lower courts of the country for more than 60 years, many since 1951. Cases pending for more than 30 years are around 66,000 in district and subordinate courts as on December 28, 2018. The pendency has gone up to 2.9 crore cases; 71% of which are criminal cases where an accused may have been languishing in jail as an undertrial. A recent assessment by the government noted that at the current rate of disposal, it will take more than 324 years for pending cases in subordinate courts to be disposed of. Chief Justice T.S. Thakur had said that the country needed more than 70,000 years judges to clear the arrears. While speaking about the problem, the former CJI almost broke down in April in the presence of Prime Minister Narendra Modi and a large number of judges and advocates.
According to a TOI analysis, there are 1800 cases still in hearing or argument stages for the past 48-58 years; around 13,000 pending for over 40 years and around 51,000 for up to 37 years. Uttar Pradesh accounts for the highest 26,000 cases pending for over 30 years, i.e. 40% of all such cases followed by Maharashtra, where more than 13,000 cases are pending for such a duration. Almost 96% of all such pending cases, belong to six states: Uttar Pradesh, west Bengal, Maharashtra, Bihar, Gujarat and Odisha. Overall, these states together constitute 61% of 2.93 crore pending cases in all lower courts in India.
In 2014, the Delhi High court granted divorce to an 85 year old man after a legal battle spanning 32 years. “This is an unfortunate case where the parties have spent more than half of their (married) lives in the alleys of the courts,” the high court had said, expressing anguish over the slow process of justice.
Although there is no dearth of such pending cases, one such cases is of Rahul Pathak of Buxar, who had filed a case on May 5, 1951, but the case is still at the argument stage in the Dumraon Civil Court and the last hearing was on November 18, 2018. In another such instance, a case was filed on July 2, 1953, by one Bhagwan against Dulari in Varanasi, which has remained stayed on perpetual basis. The case history shows that its first hearing took place on October 11, 2015, and the next date of hearing was fixed on 15 January, 2019.
A case, ‘UP state vs Ayoudhyas’ had been filed on March 18, 1966, which reached to appearance stage before Civil Judge, Duddhi, in Sonbhadra district in September, 2016, and the next date of hearing was given on February 13, 2019. Some other high profile cases of prolong trial where the victims experienced the denial of justice are: Babri Masjid- Ram Janambhumi Case; 1984 Anti- Sikh Riots Case; Bhopal Gas Tragedy Case and Uphaar Cinema Fire Case. This shows that Indian Judicial system is not able to keep pace with the dramatic increase in the number of litigation.
Pointing finger at 2006 serial Nithari rape and murder cases, Advocate Jamal Usmani said that Surinder Koli and Maninder Singh Pandher were charge-sheeted in 16 of 19 cases and three cases were closed for want of evidence. Koli has already been sentenced to death in seven of 16 cases probed by CBI. Koli had confessed to killing, dismembering six children and a 20 year old girl Payal, after sexually assaulting them. Shockingly, he also admitted to consumption of the victims’ body parts and also confessed to having sex with dead bodies. The Supreme Court had confirmed the death sentence of Surinder Koli in Rimpa Halder case of 2005. President of India, Pranab Mukherjee had rejected his mercy plea on July 20, 2014. However, till today, Koli has not been hanged on frivolous ground of other pending cases against him, which should either have been dropped or fast-tracked. The ultimate sufferers are the unfortunate parents of the children who were brutally killed, raped and eaten by the accused, who is passing his carefree days in jail, while the parents are anxiously waiting to see the end of life of the remorseless beast in human form.
The western press regard Indian judiciary as the best and independent judiciary. But the only criticism against it is that it is very slow and recognizes the right of the parties only after their death. In most of the cases the grandsons are appearing before court, contesting the cases filed by their grandparents. Its commonly said that both the parties in the prolong litigation are losers and the only gainers are the advocates. Plaintiffs and defendants only visit courts for taking dates. Geographical distances from the courts often cause great difficulty to litigants, accused and witnesses and the frequent adjournments further aggravate the agony of the parties to litigation.
According to Nick Robinson’s analysis of the Supreme Courts’ docket, nationally, there was a 2.5% chance of a High Court judgement being appealed to Supreme Court, but there was marked disparity in the appeal rates of High Court of Delhi, being nearer to Supreme Court, compared to other states. In 2008, the appeal rate in Delhi was 10%(around 4 times of the national average), in Tamil Nadu it was 1.1%.
According to the latest data on National Judicial Data Grid(NJDG), as on December 27, 2018, there are 49, 83, 236 pending cases in the High Courts of the country and 2, 93, 05, 114, cases pending before the lower courts. While subordinate courts account for the bulk of pending cases across the country, the arrears of high courts were over 49 lakh, out of which 24 lakh are civil cases, the rest being writ petitions.
The mounting pressure of delayed justice rose to the extent that in a unique and unconventional manner, Baljit Singh Malik, the accused in the Journalist Soumya Viswanathan murder case in 2008, moved to High Court of Delhi, seeking a speedy trial and compensation of Rs. 1 crore for the delay.
Subsequently, on February 6, 2019, deceased Soumaya’s father, M.K Vishwanathan, wrote to Arvind Kejriwal, CM Delhi, expressing his concern over the ‘slow pace of trial’ and ‘quality of efforts’ on part of the prosecution. The Chief Minister acting on his application provided him a special prosecutor. Victim’s mother Madhvi Vishwanatham however supported the move of her daughter’s alleged killer, Baljit Singh Malik’s move of filing a petition seeking “speedy trial”.
Reacting to Soumaya’s case accused’s demand for Rs. 1 crore compensation and Soumaya’s father’s seeking extra-judicial help for expediting the trial, Prashant Reddy T, Senior Resident Fellow of Vidhi Centre for Legal Policy, said, “I guess it’s a symbolic move. No court is going to grant Rs. 1 crore for the delay in conducting the trial.” When asked whether Viswanathan’s seeking extra judicial help in expediting court case amounts to contempt of court, Prashant Reddy said, “Perhaps 15 years ago, the courts may have initiated contempt proceedings but the judiciary is a lot more receptive to public criticism these days. It is important for us to hear more voices like Viswanathan and make efforts to reform. Censoring such voices through contempt is of no use.”
Reacting to Baljit Singh Malik and Viswanathan’s plea for speedy trial, noted lawyer, Yawar Qazalbash said, “When the accused is in jail and the trial lingers for one reason or the other, the accused is frustrated for the obvious reason of his detention and curtailment of his liberty, but at the same time victim party normally remains mentally satisfied, because they want the perpetrator to remain where they wanted him to remain. However, in Soumaya’s case, complaint of the deceased’s father to CM, Delhi, for slow pace and quality of efforts by the prosecution may have a genuine concern for him, and unless he impatiently made some comments on the process of court concerned, it may not be a contempt of court by implication.”
Commenting on mind boggling pendency of cases in all the Indian courts, Prashant Reddy said, “There are no simple solutions to this problem. The most common solution proposed in the Indian context is to increase the number of judges. We think the problem is a lot more complicated. Quality of adjudication, quality of the bar, poor administrative skills within the judiciary and the shortage of funds are all equally to blame for the problem of pendency. There is no silver bullet but the trial and tested solution for governance reform across the world is to ensure more transparency, which in turn leads to accountability.”
Giving his views on arrears, Advocate Yawar Qazalbash said, “In common parlance, accused and the lawyers are perceived and blamed for the delays in lingering cases, though on the contrary, sometimes it is the victim, the prosecution, the police agencies, and with due regard, even the courts become instrumental for delays to which scores of reasons could be mentioned.”
Qazalbash further said, “In not very distant past for redressal of cumulative causes for delays and speedy disposals, the ‘wise people’ thought it proper to constitute ‘fast track courts’ to deal with vast number of pending cases; but that experiment has added to the woes and plight of litigating public, rather than rendering some help or ease for them. Some enthusiastic presiding officers of fast track courts often publicly claim and boast that they had finally decided a certain case within seven or such odd days, obviously convicting the accused, often ignoring or bypassing the established and recognised norms to safeguard the rights of hapless tried persons”.
Qazalbash lamented that the form of oath (for high court judges) under Government of India Act, 1935, provided imparting justice as part of oath; while the oath forms provided under the Indian Constitution omitted the imparting justice part and inserted and substituted ‘upholding the law’ phrase.
Giving his valuable views for addressing the nightmare of pendency, Major General (Retd) Nilendra Kumar, former Judge Advocate General, Army said, “The large pendency is a matter of grave concern. Dr. Arun Mohan, Senior Advocate, has written extensively on this matter. However, to my views, some remedies are suggested below:-
(a) Judicial officers be assessed and given increments/benefits based on their disposal data.
(b) Even higher judiciary judges be assessed and made to work accordingly.
(c) Generate data base about lawyers and their performance in dispute resolution. Those below a stipulated desired rate be de-licensed.
(d) Activate and encourage ADR.
(e) Re-visit some statuses to limit the scope and number of appeals to cut down frivolous litigation.
(f) Impose exemplary costs to deter those trying to misuse or abuse judicial process.
(g) Improve quality of legal education.
(h) Focus on clinical education.
(i) Impart legal skills like plaint drafting, examination of witnesses, preparation of delay reports, filing of FIR, notices & patent applications etc.
(j) Introduce para-legal skill development programmes.
(k) Train the teachers.
(l) Continuing legal education for advocates, judges and court staff.
(m) Introduce commerce court manager system.
(n) Increased use of electronic mode.
(o) Prakash Singh report on police reforms be implemented in toto.”
Discussing the phenomenon of delayed justice it may be interesting to note that so far all CJIs had been accusing the centre for delaying the process of appointment of high court judges. CJI Ranjan Gogoi has said that centre not be blamed for delay.
Former Supreme Court judge B.N Agrawal said, “Delay in disposal of cases, not only creates disillusionment amongst litigants, but also undermines the capability of the system to impart justice in an efficient and effective manner.”
According to The Hindu, dated August 16, 2007, former CJI K.G Balakrishnan observed, “…..the peoples faith in the judicial system will begin to wane, because justice that is delayed is forgotten, excluded and finally discharged….”
Two years ago, former CJI T.S Thakur had literally broken down requesting the government to clear proposals for judicial appointments to high courts. Noted Senior Advocate KTS Tulsi once said that the tussle between the government and the Supreme Court has adversely affected the efficiency of the judiciary.
According to the figures of law ministry, as on February 01,2019, the vacancies in high courts stood at 400 posts against a sanctioned strength of 1079. Viewing the shortage of high court judges the causal factor behind delayed justices, Advocate Prashant Bhushan on behalf of the Centre for Public Interest Litigation(CPIL) had filed a petition in Supreme Court in 2018, alleging that the government has deliberately held up appointment of judges. However, in contrast to the views of previous CJIs, while hearing the petition on February 22,2019, the Chief Justice of India Ranjan Gogoi said, “If at all there was a delay, it was on part of the collegium, and not the Union of India. There are about 70-80 proposals pending before the Supreme Court collegium and hardly 27 before the government.”
Whose door has now to be knocked for eradicating delayed justice as speedy justice is part of ‘Right to life’ under Article 21 of the Constitution of India?