A system that drags and traps: How courts can speed up the process of justice
In the final part of our series exploring what ails the Indian judiciary, we look at how undertrials languish in jails and cases stretch over the years due to poor management and frequent adjournments.india Updated: Nov 17, 2016 17:41 IST
A bulk of the 27 million backlog of cases in India lies at the District and Subordinate courts, involving mostly poor litigants. This poses a mammoth challenge for the judiciary which only has 16,856 judges to try them.
Court cases can be broadly divided into civil and criminal. Of the 23 million cases which are currently pending in District courts, over seven million are civil cases and over 15 million are criminal cases.
About 43% of the cases are less than two years old, while 28% cases are 2-5 years old, 17% are 5-10 years old and the remaining 10% are those which have not seen closure for over a decade after they were initiated.
According to the National Crime Records Bureau (NCRB) records, at the end of 2015, 2,82,076 undertrials were lodged in various jails – constituting about 67.2% of total prison population.
Of these, 3,599 undertrials were detained in jails for 5 years or more and another 11,451 were languishing in jail for three to five years.
This condition goes against the direction of the Supreme Court in the famous Hussainara Khatoon case of 1979 where the court ruled speedy trial as a fundamental right of the accused.
Over 13 years ago, a committee headed by Justice VS Malimath that examined the criminal justice system made wide ranging recommendations to deal with enormous delays, particularly in trial courts.
It noted that the number of cases which are tried summarily is quite small as maximum punishment that can be given after a summary trial is three months.
To speed up the process, the committee said all cases in which punishment is three years and below should be tried summarily and punishment that can be awarded in summary trials should be increased to three years.
At present only specially empowered magistrate can exercise summary powers which the Committee said should be given to all Judicial Magistrates First Class. The Indian Penal Code prescribes the procedure for dealing with ‘petty offences’, and restricts it to those offences punishable only with fine not exceeding Rs 1000.
A district judge can specify in the summons the fine which the accused should pay if he pleads guilty. This procedure is simple and convenient to the accused, as he need not engage a lawyer nor appear before the court if he is not interested in contesting the case.
To give benefit of this provision to large number of accused, the committee favoured increasing the amount.
The committee even went on to suggest that the Supreme Court and high courts should reduce the period of vacation and increase the working days of the apex court to 206 days and the high courts to 231 days.
The Supreme Court has just 193 working days a year for its judicial functioning, the high courts function for 210 days and trial courts for 245 days.
Frequent adjournments are one of the main reasons for delays in criminal cases. Though amendment were made requiring that the proceedings in a criminal case should be held as expeditiously as possible and on a day to day basis, it is still unclear whether it has been effective in bringing down litigation time.
According to Neelam and Shekhar Krishnamoorthy who lost both their children in the Uphaar fire tragedy in 1997 and has been fighting a legal battle to get justice for all the victims, “One of the most important factors that cause delays in any criminal justice system is the flourishing adjournment culture.”
In their book “Trial by Fire”, the couple narrates their ordeal in courts for almost two-decades after having lost their children.
Former Bar Council of Delhi chairman KC Mittal says there is a need for pruning of list of cases sent for hearing in a court. Unnecessary applications should not be allowed to be included in the list to avoid wasting judicial time, he adds.
Even though it may not be feasible to prescribe strict time limits for the disposal of cases, the Department of Justice recognizes that adoption of better case management strategies.
A pre-trial hearing will help litigants and their advocates schedule identify the issues in dispute which will in turn help in the timely dispensation of justice.
The system of pre-trial hearing is common in several countries such as the United Kingdom, Singapore and the United States of America.
Former Delhi High Court judge Justice SN Dhingra believes that specialization of judges in a particular type of case could help bring down the time taken to adjudicate cases. “If there is specialisation, every case will be decided in one-fourth of the usual time,” Justice Dhingra said.
Limiting oral arguments
In 1985, the then Chief Justice of India PN Bhagwati, speaking on the occasion of Law Day, had said that there was a need to cut down the length of oral arguments to save the court’s time. Three decades later, the issue is still being debated.
A little known alternative dispute resolution mechanism – lok adalat has done well in bringing down backlog. Between February 2015 and September this year, lok adalats disposed 2.16 crore cases across the country.
Generally, cases where parties can reach an amicable settlement, including cheque bounce and bank recovery cases, civil suits, motor accident claims, service matters, family matters and traffic challan cases are taken up during lok adalats.
Beside, Mediation, arbitration and conciliation are also being popularised as alternative disputes resolution mechanism. But these can’t be a substitute for an efficient judicial system that delivers timely justice.
This is the third and final part of our series on what ails Indian judiciary. Part one took a hard look at pending cases and vacant benches, while part two examined the poor infrastructure that trips up courts and impedes the process of justice.