ABSTRACT
In the present research paper, established-procedure barriers being the causative factor for man-made delays in civil and criminal litigations have come under questioning investigation and stern examples cited are multi-generational litigations regarding property rights and the notorious 72-year-old Berhampur Bank case[1]. It reveals to what level new juridical developments, i.e., Bhartiya Nyaya Sanhita (BNS), 2023, and other procedural codes like Code of Civil Procedure (CPC) and Bhartiya Nagarik Suraksha Sanhita (BNSS) are tackling such systemic inefficiencies. Talking about formative issues of nature – like pendency of cases, vintage procedure, culture of adjournment, infrastructure deficit, delay in investigation – the paper identifies major loopholes and gaps in implementation. It argues that although there forms like BNS 2023 are in the pipeline of modernization and efficiency (e.g., e-processes, reason-based schedules), the real challenge will be overcoming traditionally rootled structural and resource deficits. The article concludes with pragmatic, multi-point suggestions towards re-designing the system from the current state of frustration to an organ of justice in time.
KEYWORDS
Indian Judicial System, Procedural Delays, Access to Justice, Case Backlog, Judicial Efficiency, Adjournments, Alternative Dispute Resolution (ADR), Legal Reforms, Fair Trial.
INTRODUCTION
It criticized the research studies on such obstacles, examined the law’s possibility, found inherent loopholes and administrative shortcomings, and gave constructive criticism on bridging the gap between promise and performance.
LITERATURE REVIEW
Except for the above predicted handful of reports from the committee themselves (Malimath Committee, 2003; Law Commission Reports – 77th, 79th, 120th, 221st, 230th, 245th) and academic articles, the rest of the others have always encountered the original procedural hurdles Overburdened judiciary: All-timerecord judges’ shortage on population and case-load basis is the cause of delay. Vacancies are present and appointment process very slow (National Judicial Data Grid – NJDG data always represent pendency in million).
These procedures Delay some: CPC and CrPC. though amended, still have delay some procedures at behest of strategic delays of parties (e.g., lengthy pleadings, plethora of interlocutory applications). Adjournment Culture: Allowing adjournments, which inevitably become the norm and not the exception, on frivolous reasons and thus unnecessarily prolonging the trials. Intentional adjournments are a genus of delay. Investigative Inefficiency (Criminal Cases): Police investigations are gratuitously delayed, wrongly carried out, technologically poor, and unmonitored and hence lead to defective charge sheets and unjustified remands. The Malimath Committee[2] has targeted this as one of the major causes of delay in criminal trials. Shortage of Infrastructure: Courts lack sufficient courtrooms, ancillary personnel, stenographers, and virtually no technology facilities that incapacitate disposal of cases effectively. Non-optimal Utilization of ADR: Such mediate, conciliate, and arbitrate zones are not optimally utilized to divert cases away from the conventional judicial process even despite legislative incentives (e.g., Section 89 CPC, Arbitration and Conciliation Act). Frivolous Appeals and Reviews: Its multi-stage nature, while necessary to avoid mistakes, leaves scope for indulged and even frivolous appeals that besmirch finality. Other researchers like Marc Galanter (“Accumulation and Distribution of Delay in the Production of Justice”) and Upendra Baxi have written about socio-legal impact of delay and observed that the poor disproportionately suffer. Quantitative magnitude on the huge backlog, along with pattern of growth, is quantified by empirical studies more recently based on NJDG data.
PROCEDURAL BOTTLENECKS: FRUSTRATION ENGINES
The following-referred cases – generation-pre-longing property cases and the 72-year-old Berhampur Bank case – are typical examples of some maddening bottlenecks: Civil Cases (Passed Through Property Disputes): Pleadings & Framing Issues: For the first time, filing of suits, pleadings in writing, replication, and framing of some issues take years with amendments and objections. Discovery and Interrogatories: Pre-trial proceedings, while useful, are grossly abused to time-barthe case by causingunnecessary and avoidable requisitions. Interlocutory Applications: Interim injunction, amendment, rejection of plaint, or discovery applications turn into mini-wars and consume unnecessary time. Recording Evidence: Serial recording of oral evidence takes a lot of time. Non-availability of witnesses and frequent adjournments are the reason for the same. Avoidance of Argument and Judgement Writing: Reserved judgements are passed years or months later, and final hearings are delayed. Criminal Cases (e.g., as seen in Berhampur Bank Case & others): Investigation Delays: Weak link where it starts. Biased, wrong, and/or delayed investigation results in weak chargesheets, and follow-up reinvestigations or acquittals after long delays. Non-Appearance of Witnesses: Lax protection and administrative arrangement of witnesses result in hostile witnesses or non-appearance of witnesses in themselves, which result in masse adjournments. Earlier provisions of CrPC (Sections 311, 317) were inadequate to a large extent. Committal Proceedings: Committal of Sessions Court cases to Magistrate was the reason for delay (though recent changes in CrPC directed towards eradication). Procedure on Trial: Cross-examination (serial recording of evidence) is time-consuming and adjournment-born. Bail Jurisprudence: Bail is Constitutionally assured but a slow process with pre-trial detainees awaiting trial behind bars for years, forming the bulk of jail prisoners. Prosecution Infrastructure: Under-staffed and under-funded prosecution offices are incapable of managing caseloads.
The Bhartiya Nyaya Sanhita (BNS), 2023 and Other Reforms: Bottlenecks or Cosmetic Changes
The BNS 2023 and the BNSS and BSA is a rehaul. The novel provisions in bottlenecks removal are:
Attention to Electronic Processes (BNS/BNSS/BSA): Mandatory electronic filing, serving summons, keeping record of evidence (video conferencing), and communication. It will bring speed, transparency, and minimal physical inconvenience. Tight Timelines (Mostly BNSS – in place of CrPC): Mandatory forensic visiting team visit in offences with 7+ year punishment (Section 176(3) BNSS). Charge sheet within 90 days (bailable) where initial offence is Sessions Court-triable; otherwise within 60 days (Section 193 BNSS). Trial to be initiated within 60 days from charge stage when accused is in detention (Section 232 BNSS). Judgment to be delivered within 45 days from conclusion of arguments (Section 258 BNSS). Mercy petitions to be determined within 60 days by Governor, within 90 days by President (Sections 473-474 BNSS). Streamlined Procedures Disposal of mercy plea in rational order (Section 474 BNSS). Simplified procedure for certain offences (e.g., small cases). BNS places penal action in the form of community service on minor offenders, which has the effect of reducing court burden. Witness Protection: Special provision for witness protection schemes (Section 398 BNSS). Zero FIR and E-FIR (BNSS): Enables FIR to be lodged anywhere and online, easy and convenient to maintain records. Adjournments (Section 346 BNSS): Restricts adjournments to two, on good cause, and imposition of charges on adjournments without good cause. Reason to maintain record should be established.
Loopholes and Implementation Issues: Why Anger Will Continue
Besides the beneficent intent, there are broad loopholes and material problems of implementation which render the new law superfluous: Poor Infrastructure: Forensic mandatory visitation (BNSS 176(3)) entails massive expenditure on forensic buildings and trained personnel, both of which are woefully lacking in the country currently. Timetables go slack badly without capacity. Poor Infrastructure: Poor well-synthesized internet, video-conference rooms, e-courts, and computer literacy among lawyers, judges, police, and the public takes time for electronic transactions. Judicial Vacancies and Capacity: Not recommended to cite big deadlines (e.g., 45 days judgment) unless significantly higher numbers of judges are hired and per judge case load is reduced. Root cause of backlog still not addressed. Adjournment Culture Prevails: Though limited to two adjournments “involuntarily,” the provision allows for more with “sufficient cause” (Section 346(1) BNSS). Trial of experimentation in use of test of meaning of “sufficient cause” and cost orders is awaited. Tactical delay will find other avenues. Quality of Investigation Uninterrupted: Fast-tracked charge sheets (90/60 days) in a hurry with no parallel, but much larger, push to police training, infrastructure, forensic labs, and accountability means sub-standard investigations and acquittals. Witness Protection: There are required working effective operating witness protection mechanisms with enormous cost, coordination, and system re-engineering that do not exist as of date. Digital Divide: Deprivation of poor groups of technological access or computer literacy can be eased by new over-dependence on electronic procedure. Legal Profession Adaptation: In-dug resistance or reluctant accommodation of segments of the bar to procedure such and technology can impede accommodation. Shortage of Sunset Provisions: The law lacks robust sunset provisions for backlog cases and hence the humongous backlog which had been so accumulated is still not alleviated by the new timelines as which are operational only for post-enactment cases. Unresolved Complexity: Besides all the relief from complexity one would ever desire, the very process based on oral testimony and cross-examination still remains time-consuming in character.
Solutions and Recommendations: Charting the Course to Anger-Free Equality
Dead decades of institutional inertia must be shattered by multi-disciplinary, inter-hazk, supra legislative-reform:
Radical Upgradation of Judicial Capability: Emergency Vacancy Filling: Rationalize recruitment processes (All India Judicial Service calls for serious re-thought). Judge Strength Build-Up: Increase sanctioned judge strength across all levels on a science-based workload basis. Special Fast-Track Courts Augment expert courts for some high-speed offences (cheque dishonour, traffic, property disputes) and serious offences (sexual offences, corruption). Infrastructure & Technology Revamp: Gigantic Investment: Invest in end-to-end e-court infrastructure, heavy-duty connectivity, and digital hardware throughout the country. Training: Mandatory induction of judges, court officials, police, prosecutors, and lawyers in new law and technology. Strong Case Management Systems: Implement AI-driven systems of case monitoring, delay prediction, and timetabling optimization. Scheduling Compliance: Levy tight ceilings on and directions of cost. Enable judges to issue substantial costs relating to reckless delay. Use timetables with caution. Pre-Trial Hearings: Levy pre-trial hearings on civil/severe crime cases to reduce issues, take papers in, and enforce reasonable timetables (e.g., Case Management Hearings). Evidence Act Reforms (Enforcement of BSA): Promote affidavit evidence on chief for timely trials, subject to vigorous cross-examination. Expanded application and timely use of video conferencing for questioning of witnesses. Summary Procedures: Expand application and prompt use of summary judgments and trials on rightful cases. Revamping Investigation & Prosecution: Police Modernization: Forensic lab-enabled, equipment (CCTV, cyber), training, and staff for scientific, speed investigations. Independent Directorate of Prosecution: Grant prosecution offices independence, better pay, expert training, and independence. Witness Protection: Establish effective and well-funded state-level witness protection schemes. Reforming ADR Compulsory Pre-Litigation Mediation: Mandate mediation in all suitable civil and compoundable criminal cases prior to institution before a court (with logical exceptions). Court-Annexed Mediation Centres: Establish strong, well-funded mediation centres attached to all high courts. Incentivize Arbitration: Promote institutional arbitration and enforcement of awards. Backlog Busters Lok Adalat’s Plus: Provide more muscle and authorities to Lok Adalat’s to clear higher orders of backlog cases. Case Prioritization & Management: Provide smart systems for weeding out very old cases for prioritization or other modes of disposal. Sunset Clauses (Future): Investigate legislative enactments for retirement of very old cases on pre negotiated criteria. Bar Cooperation: develop a culture of prioritization and discouragement of delay tactics by ethical values and judicial disapprobation. Public Awareness: Inform citizens about ADR options, access to law, and sensible litigation strategies. 7. Conclusion: Fairness Calls for Reckoning Berhampur Bank case, 72 years on and taking property by risk of grandsons’ cases brought in the names of their grandfathers are no exception but the necessary, albeit extreme, outcome of a delivery mechanism for justice supported with choke points of process. And yet, even though the Bhartiya Nyaya Sanhita, 2023, and the succeeding act is the optimal law as it is in the direction of cure and healing of such illnesses – far less so by means of technology and aspirational timelines – it is no magic wand. Gap-filling between parliament and reality is the only task that the shift from wrath to justice accomplishes. Loopholes revealed – so largely in the resources, infrastructure, delivery capacity, and adjournment culture of the past – they are. Cumulative nature of, huge investments of investment in police stations, courthouse rebuilding, forensic capacity, cyber connectivity, and court administration, election promises in the BNSS timetables will be another set of broken promises, but at still lower levels of public trust. Those alternatives that are on the table are rooted in political will, monumental budgetary expenditures, dedicated administrative resources, and interdependency between the judiciary, bar, police, and the legislature. Court vacancies to be filled as first-priority occupation all at once, embracing technology to a great extent, discipline of procedure in strict compliance, re-fashioning investigation and prosecution, and ADR mainstreaming are survival necessities of the health of Indian democracy and in administration of the very fundamental right to justice. The problem is one of whether collectively as an entity the BNS possess the will collectively to fulfil the promise of “Nyaya” (Justice) anera of timely justice, or if procedure chokers will ensure that it be preordained to a perpetually frustrating failure. The response will determine for all eternity henceforth the legitimacy of the Indian judicial apparatus.
[1] Prabirendra Mohan vs Berhampore Bank Ltd. And Ors. on 20 July, 1953 AIR1954CAL289, 57CWN933, AIR 1954 CALCUTTA 289
[2]https://www.mha.gov.in/sites/default/files/2022-08/criminal_justice_system%5B1%5D.pdf