ABSTRACT
The paper explores different ideas of the issues in our legal system and relevant case laws such as the Vishakha judgement, the Nirbhaya case and the Uphaar Fire Tragedy. These cases affected the nation. However, we can see how justice was delayed in such horrifying tragedies and how the victims got justice almost decades after these happenings. The paper further talks about the complexities of the judicial system and the right to a speedy trial, explaining relevant case laws such as the Hussainara Khatoon judgement, and gives the sections under the Code of Criminal Procedure and rights assured under the Constitution. The paper ends with suggestions on how to reduce the delay in the judicial system and to ensure effective and timely justice.
KEYWORDS
Corruption & Prejudice, Lack of Manpower, speedy trial, complexities of the judicial system, suggestions
INTRODUCTION
Justice delayed is justice denied is a legal maxim so prevalent that even laymen have heard of it. It means that if the judicial remedy is not provided promptly and effectively, it is equivalent to the victim not receiving justice at all. The judicial remedy is “the manner in which a right is enforced or satisfied by a court when some harm or injury, recognised by society as a wrongful act, is inflicted upon an individual.”[1]
The origin of the maxim is associated with William Ewart Gladstone [2] who said it during a debate at the House of Commons on March 16 1868[3], however, it has much older and ancient origins, to the Exodus,[4] (the second book of the Bible), and the Magna Carta of 1215 (clause 40 of which reads, “To no one will we sell, to no one will we refuse or delay, right or justice.”)[5]. It is also mentioned by Martin Luther King Jr. (“Justice too long delayed is justice denied”)[6].
In diem ‘vivere’ in lege ‘sunt detestabilis’ is a legal maxim meaning Delays in the law are hateful. While no delay in law is also concerning as it means the decision has not been properly judged and thought about. [7] When one man is freed and made not liable, there is another who faces the guilty charge. If the judgement is not made after a thorough examination of the facts and circumstances, the wrong person could be incriminated for crimes he has not committed. As the English jurist William Blackstone wrote, “Better that ten guilty persons escape than that one innocent suffer.” The same principle can also be found in religious texts and the writings of the American Founders. [8] Otto Van Bismarck, on the other hand, expressed his concern for punishing the guilty over saving the innocent, “it is better that ten innocent men suffer than one guilty man escape.”[9]
RESEARCH METHODOLOGY
The research methodology followed in the paper is doctrinal/non-empirical, relying on primary sources, such as the Constitution, statutes, case laws and such, as well as secondary sources, such as law review articles, legal periodicals, and textbooks.
SETBACKS IN THE INDIAN JUDICIAL SYSTEM
- CORRUPTION & PREJUDICES IN THE JUDICIAL SYSTEM
One of the many reasons there is a noticeable delay in the judicial system is the corruption among the judicial officers. Many of them deliberately delay the cases or give judgements favoring a party out of pure bias, which may or may not be prejudicial.
Corruption also causes problems as it takes the form of racial, caste, gender or religion-based discrimination. In various cases, we can see how the religion of the deciding bench has affected and blinded their judgement.
In the case of Lt. Col. Nitisha & Ors. v Union of India[10], the Hon’ble Supreme Court gave the concept of indirect discrimination, “when a provision, criterion or practice would put persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.” It means having a policy which advantages and is prima facie neutral towards all groups and persons but disadvantages one certain group with shared characteristics. Such as Muslim Girl Students in the Hijab controversy case. The petitioners had heavily relied on a judgement from South Africa, MEC for Education: Kwazulu-Natal and Others v Pillay[11], wherein a Hindu student was said to be going against the dress code as she wore a nose stud. The student, however, pleaded that she wore the stud according to her religious belief. The South African Court ruled that the dress code was supposed to be neutral for all. However, it infringed upon some students’ religious beliefs and therefore stopped them from expressing their religion. The code, therefore, failed to accommodate beliefs that relate to certain religions. The Karnataka High Court, however, stressed how the nose stud was ocularly insignificant, whereas the hijab was ocularly significant, meaning it was properly visible to the human eye, unlike the nose stud, which was not visible as much as the hijab. This perfectly fits the doctrine of indirect discrimination. It puts Muslim Girl Students at a disadvantage when compared to students of different religions. This case heavily impacted the students sharing these particular characteristics as they lay on the intersection of wanting education and wanting to protect and express their religious beliefs, which a dress code that was supposedly neutral for all had brought into question.
Caste-based discrimination is also a cause of bias among judicial officers. We can see the relationship between caste and the judiciary in a 2006 interview of constitutional expert and jurist Fali Nariman during the release of his book India’s Legal System where he states, “Former law minister P. Shiv Shankar, a Dalit, told me that as policy, in some states, if two justices have to be sworn in on the same day, the guy from the preferred community is sworn in first, so that the guy from the non-preferred community doesn’t supersede him in becoming chief justice”.[12]
In the landmark judgement of Vishakha & Ors. v State of Rajasthan[13], Bhanwari Devi was a village-level woman working in a women’s development scheme run by the government of Rajasthan. She tried to stop a child marriage of an infant (who was less than a year old) from taking place in the family of Ramakant Gujar, who was well-reputed and belonged to a known family. Angered by her interference, Ramakant Gujar, along with five of his men, gang-raped Bhanwari Devi in front of her husband. When the matter was taken to Court, the men were acquitted, and the judge stated that the men could not have done it as Bhanwari Devi belonged to a lower caste while the men belonged to an upper one. Another statement passed was that since the men were middle-aged, they could not have committed such an offence, as something like rape was only seen in teenagers. In this judgement, it is evident that due to bias and prejudice pre-set in the judge, the men were acquitted, and Bhanwari Devi’s case was dismissed. Despite the case later being heard in the Supreme Court, which activated the Vishakha Guidelines, Bhanwari Devi was denied immediate justice and relief.
In all of the above-described cases, the judgements and, in turn, justice were heavily delayed. The students affected by the hijab ban are still awaiting justice after the split verdict by the Supreme Court. Many cases like Bhanwari Devi’s do not reach the courts due to inadequate resources; how many cases as heinous as hers does the nation have to see before the inherent bias in the judicial officers is removed and justice is delivered effectively?
- LACK OF MANPOWER
India, the country with the largest population in the world, has only 21 judges per million people, based on the 2011 census[14]. Former Chief Justice of India, Justice TS Thakur, talked about how the judiciary is constantly criticized for the pendency of cases. However, it is not only the judiciary, but also the Government. The appointment procedure of judges gets stuck at the level of the government for obscure reasons. He also blamed the overwhelming load of litigation and the judicial vacancies that are not being filled to their extent; Jurist Ram Jethmalani also talked about how only 0.5% of the government’s budget is allocated to the judiciary. All of these factors add to the already existing load, increasing the pendency of cases each day. The Doshipura graveyard case is the longest pending case before the judiciary; it started in the year 1878 between Shia and Sunni Muslims about nine plots in Doshipura. Though the Supreme Court has tried to settle this issue, the parties always come to a standstill. There are currently over 5 crore pending cases in India, with over 10.3 lakh in the Allahabad High Court itself (as of February 1, 2023)[15]. The Law Commission of 1987 had recommended 40,000 judges to deal with the pendency of cases during that time. However, the number has only increased. There are only 1114 judges in the High Courts of India, with around 840 of them permanent, and the remaining 274 sanctioned for additional judges, while 333 seats are vacant (as of July 1 2023).
- COMPLEX LEGAL SYSTEM
India has a very complex legal system. With all the above-stated problems, and trials and retrials in different courts, days and months for a hearing, the burden on advocates to be present in two places at once causing delays and court hearing dates moving to the next available one, a suit may take months, years, and even decades to be solved.
Cases such as the Uphaar Fire Tragedy (Association Of Victims Of Uphaar Tragedy vs Union Of India (UoI) And Ors.)[16] where around 60 people died, and over a hundred were injured; justiceJustice was given almost 20 years later after the families of the victims fought a hard, torturous and never-ending battle to ensure such a tragedy does not take place again. The Ansal brothers responsible for the tragedy were sent to jail and fined. The trial began in 1997, with the filing of the chargesheet and the cinema management, Delhi Vidyut Board, city fire service, the Delhi police’s licensing branch and municipal corporation were held responsible. It took the prosecution three years to finish recording the evidence and the testimonies of the 115 witnesses in the year 2000. There were around 344 hearings in the next seven years. Out of the accused, around four died, and most of the witnesses had turned hostile. Despite being asked to expedite the case in 2002, the case went on for over a decade. A judge commented on the repeated asks for an adjournment to delay the case. In 2009, almost ten years after the tragedy had occurred, a trial judge along with CBI officials went to take a look at the theatre and the seats where the incident occurred and found that the place for the exhaust fans was covered by cardboard. The brothers were also accused of evidence tampering in 2003. However, the Court ordered an enquiry and dismissed the clerk. The Economic Offences Wing of the Delhi Police registered the case in 2006 with Neelam Krishnamurthy as the convener in the petition in the Delhi High Court by the Association of Victims of the Uphaar Tragedy. The verdict came in 2007, with fines and rigorous imprisonment for twelve people involved in the tragedy, including the two brothers. The most recent development in the case was in 2015 when the Supreme Court asked the brothers to pay Rs. 30 crores to the families of the victims or go through two years of imprisonment. This order was reviewed again in 2017, and Gopal Ansal was sentenced to prison. However, Sushil Ansal was not sent to prison, keeping in mind his old age.
The Nirbhaya Case (Mukesh V State (NCT of Delhi)[17] Was a case so horrendous it shocked the entire nation and the world? Protests were held for the victim all around the country. The incident happened in 2012, with arrests of the six men responsible happening within 24 hours, one of whom was a minor. One of the convicts, Ram Singh, was found hanging in his cell, suspected of either having committed suicide or having been murdered. The remaining four convicts were given a death sentence in September 2013 by a fast-track court in Delhi. In March 2014, the Delhi High Court upheld the judgement of the fast-track court. The Hon’ble Supreme Court stayed the sentence of two of the convicts (Mukesh Singh and Pawan Gupta) to allow them to appeal against the conviction, and in June, the other two convicts (Vinay Sharma and Akshay Thakur) asked the Hon’ble Supreme Court to stay their execution. In 2017, the pleas of all four convicts were denied on the grounds of their crime being barbaric and horrifying. In July 2018, the Court slammed a review petition filed by three of the convicts. In November 2019, a review petition by Akshay was also denied. In January 2020, a five-judge bench rejected petitions by Vinay Sharma and Mukesh. A death warrant was set for January 22 2022 for all four convicts, after which Mukesh filed a plea to the President of India, which was denied. After exhausting all their legal remedies and four death warrants, the four were finally hanged on March 20 2020 at 5:30 AM. The victim, after facing such a horrible offense, with the nation being indented with petrifying trauma, got justice almost seven years after the incident.
If cases as scarring as the Uphaar fire tragedy and the Nirbhaya case were given justice after so long, what about the cases which do not fall into the category of rarest-of-rare scenarios? How long would it take for the judicial system of the country to deliver justice to them?
SPEEDY TRIAL IN INDIA
- CASE LAWS RELEVANT TO SPEEDY TRIAL IN INDIA
Hussainara Khatoon & Ors. v Home Secretary, State of Bihar[18] was the most prominent judgement as it was held that the right to a speedy trial was a fundamental right under Article 21 of the Indian Constitution, which gives the right to life and personal liberty. In this case, Advocate Pushpa Kapil Hingorani filed a habeas corpus writ petition before the Supreme Court asking for the release of the under-trial prisoners in the Bihar jail, some of whom had been in prison for longer than they would’ve faced had they been convicted for the offense. This was also the first recorded case of a Public Interest Litigation being filed before the courts.
In Sheela Barse v State of Maharashtra[19], it was held that if a case remains pending before the magistrate or the sessions court for too long, it would violate his fundamental right to a speedy trial, unless in a special case wherein an order is in place by a superior court. The case will be quashed by the prosecution if there is such a delay.
In Rajeev Gupta v State of Himachal Pradesh[20], it was decided that if a criminal case which would lead to imprisonment for three years is not concluded for three years, the case would be quashed.
- PROVISIONS ENSURING SPEEDY TRIAL
- UNDER THE CODE OF CRIMINAL PROCEDURE
Section 157 (1) has to send a report to the magistrate as soon as he gets the knowledge of an offense and proceed to the spot for investigation.
Section 173(1) provides provisions to complete investigations without unnecessary delay.
Section 207 gives the accused the right to get free copies of the police report, the FIR recorded under section 154, the statements recorded of all persons, the confession and statement recorded under section 164, and any other documents sent to the magistrate along with the police report.
Section 167(2)(a) deals with the concept of police custody which is granted at the first stage of investigation for 15 days, detention of the accused after the 15-day police custody and default bail. In offenses punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, the investigation is not completed within 90 days, and in case of other offenses, the investigation is not completed within 60 days, then the accused shall be released on bail.
Section 173(1A) says that the investigation of the offence of rape shall be finished within two months. This period starts from the date on which the information is provided to the police.
Section 309 (1)– was added as an amendment to prevent delay in the trial, and it provides that the proceedings be conducted on a day-to-day basis until all the witnesses have been examined. It also provides that the trial relates to an offense under Section 376, 376-A, 376-B, 376-C, 376-D, 376-DA or 376-DB of the Indian Penal Code, 1860, the inquiry or trial shall, as far as possible, be completed within two months from the date of filing of the charge sheet.
- UNDER THE CONSTITUTION
The right to Speedy Trial is a fundamental right under Article 21 of the Indian Constitution. In case of violation of fundamental rights, a person can move to the Supreme Court to seek remedies under Article 32 and the High Court under Article 226.
In the case of P. Ramachandra Rao v. State of Karnataka[21]The Court stated the powers given under sections 258, 309, and 311 of the Code of Criminal Procedure that may be exercised by the criminal courts to ensure the right to a speedy trial.
SOLUTIONS TO REDUCE DELAY IN JUSTICE
In my view, the approach towards reducing the delay in justice needs to be more practical rather than utilitarian. It needs to be systematic, approaching justice from its grassroots. The first step towards any improvement would be creating awareness and education among the poorest sections of society rather than just making superficial changes among the educated. The inherent cycle of the judges of superior courts only belonging to one family needs to be changed and shuffled.
Corruption is most prevalent in the higher courts, more corruption with more power. Reducing this corruption is the utmost need of the hour. The religious and caste-based prejudice among the judicial officers can only go away by self-policing, ensuring that nobody is given the wrong judgement solely based on their caste, sex, gender, race or religion.
Lack of manpower in the judicial system is by far the biggest problem faced by the judiciary in delivering effective and timely justice. The courts need more judicial officers to be appointed from the lowest to the apex court to reduce the pendency of cases. The vacancies in the posts need to be filled. More special case courts, such as the POCSO courts, need to be appointed to ensure correct and proper judgements in more sensitive cases.
Use of Information and Communication Technology as an effective tool in the court system to ensure automation and less manual function, reducing the chances of human errors and taking lesser time, with much more effectiveness. The E-Courts project based on the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary – 2005” helps in more permanent, reliable and easier logs of suits and pertaining matters. It makes courts paperless, helping save the environment as well as reducing waste. This ensures transparency and increases reliability. Users can attend meetings from any remote place and do not need to be physically present, reducing the time taken to commute and therefore also reducing the burden on the advocates to rush to and from different courts to attend hearings.
The courts also need to focus on Alternative Dispute Resolution methods such as Arbitration, Mediation and Conciliation which would reduce the burden on courts. ADR also ensures lesser disputes among the parties, compared to what would happen between the parties if the matter is resolved in Court.
Setting up Quasi-Judicial bodies such as tribunals to deal with special matters, such as the National Green Tribunal and the Consumers Tribunal, would reduce the burden on courts by a large amount, as some cases might come under the jurisdiction of the tribunals.
Most of all, the legal system of the nation needs to be simplified to ensure a speedy trial. The courts should focus on speedy justice without compromising on the quality and the righteousness that a well-heard and thought-out matter would get.
CONCLUSION
With a large number of pending cases and an ever-growing population, India needs to work on reducing this pendency as soon as possible. Implementing the above-given solutions would help increase efficacy and reduce the burden on the courts; it is the need of the hour. The problems listed above cripple the judicial system, and it is the common man who has to suffer the most. This delay in justice affects the youth, such as Nirbhaya, a daughter of the nation, and the children who lost their lives in the Uphaar Fire Tragedy. The people at the top of the judicial system are the ones making decisions for the nation and its citizens, but these decisions will not affect them as much as they would the working class and the youth of the nation. The judicial system of the country requires a change, including young people entering the field of law. Law students need to ensure self-policing so cases like Bhanwari Devi’s do not get dismissed solely because of the judge’s casteist views. The courts need to find a way to balance the timeliness and effectiveness of their judgements because justice denied is justice delayed.
Name- Chehak Gandhi
Institution- Dr Bhim Rao Ambedkar National Law University, Sonepat
[1] Globalnaps.org, “Judicial remedy – National Action Plans on Business and Human Rights” (last visited July 11 2023)
[2] Bartleby.com, https://www.bartleby.com/lit-hub/respectfully-quoted/william-ewart-gladstone-180998-4/ (last visited 11th July 2023)
[3] Newspapers.com, https://www.newspapers.com/article/78434743/justice-delayed/ (last visited 11th July 2023)
[4] Waybackmachine, webarchive.org, https://web.archive.org/web/20160304001948/http://tmt.urj.net/archives/4jewishethics/052605.htm (last visited 11th July 2023)
[5] Whitham v Hill, 1759
[6] Archive.today, https://archive.ph/20190323113329/https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html, (last visited 11th July 2023)
[7] Benham, William Gurney (1927). Putnam’s Complete Book of Quotations, Proverbs and Household Words. Quoted in Shrager, David; Frost, Elizabeth, eds. (1986). The Quotable Lawyer. New York, London: Facts on File New England Publishing Associates. p. 83
[8] Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997): 173-216.
[9] John W. Wade, “Uniform Comparative Fault Act,” The Forum 14, no. 3 (1979): 379-405.
[10] Writ Petition (Civil) No 1109 of 2020, 2021 SCC OnLine SC 261
[11] (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (October 5 2007)
[12] The wire, https://thewire.in/caste/caste-bias-judicial-system, (last visited 11th July 2023)
[14] Economic Times, https://economictimes.indiatimes.com/news/india/india-has-21-judges-per-million-population-govt/articleshow/97559581.cms (last visited 11th July 2023)
[15] NDTV, https://www.ndtv.com/india-news/nearly-5-crore-pending-cases-in-courts-over-69-000-in-supreme-court-3768720 (last visited 11th July 2023)
[16] II (2003) ACC 114, 2003 ACJ 1631, 2003 IIIAD Delhi 321, 104 (2003) DLT 234, 2003 (68) DRJ 128, 2003 RLR 333
[17] (2017) 6 Supreme Court Cases 1: (2017) 2 Supreme Court Cases (Cri) 673: 2017 SCC Online SC 533
[18] 1979 AIR 1360, 1979 SCR (3) 169
[19] 1983 AIR 378, 1983 SCR (2) 337
[20] 2011 SCC OnLine HP 6031
[21] (2012) 9 SCC 430