Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses.

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The judiciary is a co-equal branch of the government within India’s democratic and constitutional framework, along with the legislature and the executive. The role of courts in society is not merely to adjudicate disputes between parties, but also to protect the rights and liberty of individuals. This is especially important in criminal matters, where an individual is pitted against the might of the State.

The rule of law cannot exist without an effective judicial system, which is capable of enforcing rights in a timely and proportionate manner in a way that inspires public confidence in the administration of justice. For the law to govern, the system through which it is administered must measure up adequately when mapped against the three dimensions of justice– substantive justice on merits, timeliness in the disposal of cases, and proportionate use of the State’s resources. Access to justice thus, assesses the fulfilment of an individual’s entitlement to justice on these parameters to ensure that legal redress does not become the preserve of a few. It represents the ability of every person to enforce the fundamental rights and freedoms guaranteed by law.

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Unfortunately, apathy and ineffective governance have created barriers in accessing justice, which has resulted in granting certain sections of society only limited access to the full range of socio-economic and civil-political rights available. There are three immediately obvious barriers to access. First, there are ‘external factors’ such as monetary, cultural or geographical barriers, which exclude or “fence out” certain sections of society by preventing their access to courts. Geographical barriers or distances from courts can cause great difficulty to litigants, accused, witnesses, if they have to undertake day long trips to reach the courts, only for the matter to be adjourned. Distance also determines the probability of appealing the decision of a lower Court to a State High Court or to the Supreme Court. Nick Robinson, in an excellent analysis of the Supreme Court’s docket found that while nationally, there was a 2.5 percent chance of a High Court decision being appealed to the Supreme Court, there was great disparity in the appeal rates based on the proximity of the State High Court to the Supreme Court in Delhi. Thus, while the appeal rate in Delhi in 2008 was 10 percent (around 4 times the national average), in Tamil Nadu it was 1.1 percent.

Second, are ‘internal factors’, such as delays or convoluted procedures and technicalities, which affect everyone in the system, but disproportionately impact those with fewer resources. This raises the question of whether every individual, who approaches the legal system or is made to participate in it – as a Defendant in a civil suit or an accused in a criminal trial – can expect an expeditious hearing, as well as a fair outcome?

Third, there are ‘quality factors’, which are caused by the uncertain and inconsistent application of law and arbitrary sentencing and affect the substantive judgment of the case on merits. This tends to have a disproportionate impact on the poor, whether in cases related to bail, or the death penalty. Reforms in each of these areas will significantly improve the lives of our citizens by creating equal opportunities to enforce the law and more generally, improve social cohesion.

This piece focuses on delays in the legal system, looking at both, the scope of the problem, and its implication on the criminal justice system.

Understanding the magnitude of the problem of delays

For the law to govern, the system through which it is administered must measure up adequately when mapped against the speed of disposing cases. Unfortunately, delays illustrate the impediments to accessing justice in India.

Currently, there are more 2.8 crore cases pending in various courts across India, with more than 60,000 matters before the Supreme Court. The problem however, is not of too many cases coming into the system; it is of too few coming out.

This is best demonstrated by the Supreme Court’s own data on the national picture of the pendency of the cases in the subordinate courts:

These undue delays, often occasioned by judicial vacancies and improper case management, are burdening the system and frustrating the average citizen’s hopes for effective redressal.As is evident from the aforesaid table, although subordinate courts are usually adept at handling the flow of fresh cases, they fail when it comes to reducing the pendency or backlog of cases.

It is a matter of great worry that even in 2015, more than 22.8 percent of all cases before subordinate courts are more than five years old; and of this, 15.8 percent are criminal cases, where the life and liberty of individuals is at stake. Such delay in criminal matters adversely affects the rights of the victim (and creates future disincentives from filing or pursuing cases) and the accused (who might be in prison, or have his liberty and free movement constrained, or at the very least, be living under the fear of an eventual conviction).

Delay and the criminal justice system: Some figures

While delays in the civil sphere are problematic, delays become particularly challenging on the criminal side, when we consider that marginalised and vulnerable groups are sometimes forced to engage with the system as accused and might have to spend extended periods as under-trial prisoners if they are denied, or cannot afford, bail. This makes the need for reform extremely urgent.

Currently, India’s subordinate judiciary is only able to complete a trial in a criminal case (based on offences prescribed in the Indian Penal Code and other Special and Local Laws such as the NDPS Act, Prevention of Corruption Act, Prevention of Money Laundering Act, the terror laws etc.) in approximately 25 percent of the cases brought under these laws in a year, with the performance at 13 percent being even worse in cases brought for trial under the Indian Penal Code. This is brought out by “he Supreme Court’s report titled 'Subordinate Courts of India: A Report on Access to Justice, 2016', which compiled the following data and chart based on the data it analysed from the National Crimes Records Bureau:

There are two aspects of delay that need to be considered in the context of a criminal trial. The first, as expressed above, deals with the time taken to complete a trial and give a judgment. The second aspect, related to pendency, pertains to the consequences of delay, and its effect on under trials. Criminal law proceeds on the presumption of innocence, namely an accused presumed innocent until proven guilty. However, the pendency of a criminal trial has a substantive impact on the liberty of an accused person and their presumption of innocence, especially if they are put in prison pending trial.

Globally, there are nearly 3 million pre-trial/remand prisoners or “under trial prisoners”, constituting 27 percent of the total prison population. In India, the situation“is much worse. As per t- late”t 'Prison Statistics India — 2015' Report released by the National Crime Record Bureau (“NCRB”), 67.2 percent of our total prison population comprises of under trial prisoners. That means, that 2 out of every 3 prisoners in India is an under trial, ie a person who has been accused or charged with committing an offence, but has not been convicted and is still, presumed innocent. The proportion of under trial prisoners as a percentage of the total population has only been increasing since 2000.

Apart from examining the total numbers of under trial prisoners in India, it is also instructive to break down the time being spent by such prisoners in judicial custody while awaiting trial. An analysis of the NCRB Prisons’ Report reveals the following trends:

It is thus clear that the proportion of under trials that have been in jail for more than one year, while awaiting trial, is steadfastly increasing.

Is justice delayed, justice denied?

One might ask, what is the connection between the number of under trial prisoners and delays in the criminal justice system? 60 percent of police arrests in India are reportedly either “unnecessary or unjustified”. In that context, inexorable delays in the judicial process result in the continued detention of accused persons, pending trial. This is problematic because extended incarceration of a person accused of an offence impedes the effective assistance from their counsel, and can affect the defence put on at trial. From a practical perspective, it is often difficult and time consuming for lawyers to take out time to go to far-off prisons to meet their clients, especially in a legal aid context. There is some anecodtal evidence that lawyers end up meeting their clients only when they are produced in court, thus giving them a very little time to effectively confer with their clients for their case.

Additionally, extended pre-trial detention also causes a mental trauma of incarceration and has a socio-economic impact on the accused person’s family. In many cases, an under trial prisoner may be the only earning member of the family, and the period for which he/she has been in prison, may have a lasting impact on their families, even if the accused is eventually acquitted.

Apart from this, the pendency of a criminal case is like a sword hanging over a person’s head, and directly affects their liberty, free movement, and interaction in society, even if the accused is not in prison. It is for all these reasons that speedy trial, or a “reasonably expeditious trial”, has been held to be an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 by the Supreme Court.

It is important to remember that delays in the administration of justice, affect not only the rights of the accused, but also the rights of the victims. Long trials can lead to evidence, especially eyewitness testimony, being forgotten or lost, which reduces the chance of conviction. Given that victims have a very limited role to play in the prosecution of a criminal case, and thus no control over its progress, delays in the conclusion of trial can deter victims from filing or pursuing the case diligently.

Finally, there is a law and order angle to consider. As the 239th Report of the Law Commission of India noted, delays in the investigation and prosecution of criminal cases erodes faith in the rule of law and the criminal justice system, which has serious implications for the legitimacy of the Judiciary. Justice delayed, is thus justice denied.

What can be done?

Various solutions have been proposed to reduce the problem of delays. This extends from increasing the strength of judges, reducing judicial vacancies, diverting cases from the courts to alternate dispute resolution forums (such as mediation and Lok Adalats) and specialised tribunals. In the criminal justice sphere, the introduction of “fast-track” courts, jail-adalats (“prison courts”), and plea-bargaining were introduced with much fanfare, although their success is yet to be demonstrated. However, even assuming that such methods succeed in reducing the pendency of cases, we have to be careful not to lose focus on the quality of substantive justice rendered. Both jail adalats and plea bargaining, reduce the backlog in courts, by encouraging accused in certain cases to plead guilty in exchange for a reduced sentence, although the taint of a conviction remains. However, serious questions have been raised about the class-bias that operates in these systems. For instance, as the recent Daksh Report noted, an accused who has been in prison for many years as an under trial, may think it is more advantageous for him to plead guilty and leave prison, rather than face the uncertainty of trial.

A lot of the above proposals look at the court process as an institution functioning in vacuum. However, delays in the legal system are caused not only because of a shortage of judges, but also because of a shortage of police officers (who have to investigate cases and then come to court on a regular basis), prosecutors (who are often underpaid and over-worked), inadequate judicial infrastructure (overcrowded court rooms or inadequate support staff such as stenographers) Thus, any holistic solution will have to be cognisant of the variety of factors that cause delays, with a strong focus on empirics to understand the cause for delays. We have made a start in this direction, but have a long way to go.

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