1. Justice delayed is justice denied’ is one of the common slogan often used in the realm of administration of justice. Delay in disposal of cases hampers the cause of justice. There is greater need to eliminate delay in the trial of criminal cases. The gravity of the offence is often lost with the passage of time. Therefore, criminal justice system must provide for speedy and effective trial. Unless justice meted out is speedy, society will be threatened with dangers of violence and lawlessness.
Delay in disposal of criminal proceeding may be attributed to the mal-functioning of police, prosecution agency, legal profession, trial courts, appellate courts, etc.
The former Chief Justice of India, P.N. Bhagwati in his speech on the Law Day on November 26, 1986 observed:
“Our judicial system is creaking under the weight of arrears. Arrears cause delay and delay means negating the accessibility of justice in true terms to the common man.”
Similar views were expressed by Nani A. Palkhivala in 1987. He attributed laws’ delay to legal profession who seek adjournments on most flimsy grounds. If the Judge does not readily grant adjournments, he becomes highly unpopular.
Expressing his concern for delays in disposal of criminal cases, the Chief Justice of India, Dr. A.S. Anand (as he then was) in his address at All India Seminar on Judicial Reforms, inter-alia, observed:
“Failure of judiciary to deliver justice within a time-frame has brought about a sense of frustration amongst the litigants….Human hope has its limits and waiting for too long in the current lifestyle is not possible. Some feel that judicial system has shown appearance of cracks and fatigue but I am an optimist and do not share the view that judicial system has collapsed or is fast collapsing.”
2. There has been steady deterioration in the quality of the investigation and also in promptness in concluding the investigation. The interval between the date of lodging the FIR and the submission of the charge-sheet ranges from 4 to 6 months and in some cases even beyond this period.
Defective investigation because of innocent person being booked along with the guilty or manipulated case diary not only delays the trial but brings disrepute to police and results in consequential acquittal. The failure of the police witness, especially the investigating police officer, to appear before the courts on the dates fixed leads to postponement of trial for several days.
Yet another reason for delay in the trial is the failure of police to furnish the accused with copy of police papers as required under Section 173(4).
3. Frequent adjournments sought by the prosecutors for one reason or the other, also causes inordinate delay in trial of the case. The prosecutor takes adjournment from one court on the plea of his being busy elsewhere, and the trial court has to adjourn the case in the interest of justice and fair play.
This is highly objectionable but widely prevalent practice in the Indian Courts. No personal ground except personal illness of the lawyer should be entertained for the adjournment of the case. The lawyer’s absence without an alternative arrangement should be treated as misconduct.
A Bench of the Supreme Court comprising Justice K.T. Thomas, R.P. Sethi and S.N. Phukhan, JJ. in a case decided on May 4, 2001 said that a lawyer would be guilty of committing professional misconduct if he seeks repeatedly adjournments in the examination of witness present for hearing. Such dereliction, if repeated, would amount to misconduct of the advocate concerned.
The Apex court observed that “legal profession must be purified from such abuses of court procedures. Tactics of filibuster, if adopted by an advocate also amount to professional misconduct.” The Court expected the trial courts to be courteous towards witnesses. They cannot be treated as less respectable to be told to come again and again just to suit the convenience of the advocate concerned. In this case, adjournment was sought on the ground that the advocate was not well, only to be later found that he was arguing in another court.
4. It is well known that lawyers and counsel for prosecution and defence are more interested in winning the case on their side rather than bringing out the truth before the Judge. In the wordy-battle that ensues between the contesting lawyers, the truth is completely lost sight of. This may result into acquittal of a guilty person or conviction of an innocent man.
Late American Judge Jerome Frank likened the role of counsels in a criminal trial to a “cat, and mouse game” or a battle of wits rather than a search for truth. Therefore, the need of the day demands that lawyers must accept their obligation to make law serve the society. Chief Justice A.T. Vanderbilt of the New Jersey once observed that the function of lawyers should be to search the truth and not to indulge in mere battle of wits.
Commenting on the role of legal profession and lawyers in the judicial system, Mr. Justice H.R. Khanna, former Judge of the Supreme Court of India observed, “The legal profession is designed to be a profession of service…….. Service to the community. The important duty of the profession is to act as an interpreter, guide and faithful servant of the community”.
The lawyers have an important role today in preserving confidence of the people in the independence of judiciary thereby ensuring rule of law. Justice Khanna opined that there are three pre-requisites for the prevalence of the rule of law. They are, a strong Bar, an independent judiciary and an enlightened public opinion.
The miseries of clients and high cost of litigation must attract attention of lawyers in a developing society like India where litigants are generally poor and illiterate.
5. The present laws of crime and evidence have become out-dated and need to be drastically changed in order to meet the new challenges of modem Indian society. Many provisions of these outdated laws have become obsolete and need to be suitably amended. In fact, the whole of the penal code needs to be restated.
The law of crime must be overhauled and redrafted keeping in view the needs of the present day society. Though the Law Commission of India has done commendable work in this field, the matter needs to be tackled by the Government on priority basis.
6. The miserable plight of clients at the hands of lawyers on the one hand and poorly paid ministerial staff of the court on the other, has shaken the confidence of common man in the institution of court which is an instrument of justice. The corrupt practices and exploiting tactics of these professionals make it difficult for a common man to get evenhanded justice in a law court.
7. The enormous increase in crime-rate has led to unprecedented rise in the number of criminal cases. The large number of cases pending in criminal law courts over-burden the work of magistracy to such an extent that the Judges hardly find sufficient time to be devoted for each case. This has repercussions on the quality of judgment delivered by the courts. Needless to say that this is averse to the cause of justice.
Therefore as an alternative, the system of ‘Plea-bargaining’ as prevalent in United States, has been introduced in India by the Criminal Law (Amendment) Act, 2005. In this system, it is open to an accused person to plead that he is guilty of a lesser charge and it is upto the Judge to accept the plea or reject it.
Thus under ‘Plea-bargaining’ system robbery may be reduced to theft, murder may be reduced culpable homicide, attempt to murder may be reduced to grievous hurt, rape may be reduced to indecent assault and so on. This would certainly reduce the burden on criminal courts considerably and criminal law can be enforced more efficiently and speedily to ensure fair justice.
It must be stated that the question of judicial arrears has engaged the attention of successive Governments and Law Commissions. One of the primary reasons for the crisis in the judiciary according to Justice, S.B. Sinha of the Supreme Court is managerial incompetence of Judges and Courts. “People with legal problems like people with pain, want relief and they want it as quickly and inexpensively as possible”.
This observation of Justice Warren Burger, the former Chief Justice of the U.S. Supreme Court applies in the Indian context as well. Besides utilization of emerging technologies in the operational field, judicial infrastructure also needs to be improvised. The adoption of the system of plea bargaining under the Criminal Procedure Code as amended in 2005 is indeed a progressive step in this direction, which, if properly used, will go a long way in reducing pendency of cases in criminal law-courts.
8. Multiplicity of appeals and revisions cause more harm than good to the cause of criminal justice. In an anxiety to ensure that no party may be deprived of a right of justice, there are multiple provisions for appeals which hamper speedy administration of justice. There should be only one appeal on the merits of the case and one revision only on the question of jurisdiction regarding the subject-matter of the case. There is no reason to presume that judges and Magistrates would not decide cases.
The increase in the pendency of appeals in High Courts is one of the main causes of delay in disposal of criminal cases. Delay at this stage may be attributed to delay in preparation of the paper book and also liberal grant of adjournments at the request of counsel for both sides.
Another well-known reason for undue prolongation of criminal trial is the filing of transfer petitions for purely tactical purpose of granting time and the filing of criminal revisions, on interlocutory matters and obtaining stay from the High Court. Therefore, it is desired that the High Courts should maintain strict vigilance and discourage any attempt by the interested parties to use (rather misuse) this power of the High Court merely for tactical purpose of delaying the proceedings in lower courts.
In order to bring effectiveness in the system of criminal justice, the procedure needs to be further simplified. It is utmost necessary to separate the police investigation from law and order and place the former under the control of judiciary. Similarly, the Directorate of Forensic Science Laboratory should be separated from the control of Police Department and made an independent autonomous body so that it may serve the cause of justice. There is need to develop alternative dispute resolution mechanism for expeditious disposition of criminal cases by amending the existing criminal law and procedure.