Delay in Justice Delivery System by j s Rajawat

8/12/2019 Delay in Justice Delivery System by j s Rajawat

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DELAY IN JUSTICE DELIVERY SYSTEM BY J S RAJAWAT


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AN ALLYEAR JUSTICE DELIVERY SYSTEM

The notionthat ordinary people want black-

robed judges, well dressed lawyers, fine paneled courtrooms as the setting to resolve their disputes, is not correct. People withlegal problems. like people with pain, want relief and they want it as quickly and inexpensively, Justice Warran Burger, former

Chief Justice of the American Supreme Court

INTRODUCTION

RM Lodha , C J I, stressed the need to keep the courts open 365 days in a yearwhereas presently , the Supreme court has 193, High courts 210 and trial courts

245 working days in a year to fight monstrous backlog of over 2 crores cases.1

and called it as One of the grey areas, where our justice delivery system has failed

to come up to the peoples expectations is that the judiciary has failed to deliver

justice expeditiously . This delay in delivery of justice is in fact one of the greatest

challenges before the judiciary. The problem of delays is not a new one it is as

old as the law itself. The problem has assumed such a gigantic proportion that

unless it is solved speedily and effectively, it will in the near future crush

completely the whole edifice of our judicial system2.Delay in context of justice

denotes the time consumed in the disposal of case, in excess of the time within

which a case can be reasonably expected to be decided by the court. An expectedlife span of a case is an inherent part of the system.

Delay in disposal of cases not only creates disillusionment amongst the litigants,

but also undermines the very capability of the system to impart justice in an

efficient and effective manner. Long delay also has the effect of defeating justice

in quite a number of cases3The huge back log in the courts has been the subject ofnumber of Reports, debates in parliament and state legislatures ,in Judicial

conferences and the Media. Chief Justice Anand Observed:"The consumers of

justice want unpolluted, expeditious and inexpensive justice. In its absence, instead

1TOI dated may 16thpage 1 Jaipur edition2C.L. Aggawwal, Laws Delay and Acccumlation of arrears in the High Courts. The Journal

of Bar Council of IndiaVol. 7(1): 1978 p 41.

3CJI Justice K.G. Bala Krishnan Efficient Functioning of Indias Justice Delivery System

(2007) 4 SCC J-15


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of taking recourse to law, he may be tempted to take law in his own hands. This is

what the judicial system must guard against so that people do not take recourse toextra judicial methods to settle their own scores and seek redress of their

grievances.4Therefore, the important question is: how the various compontant of

justice delivery system can improve the situation. This issue has been examinedby law commission in its 77Th voluminious report and justice Y K Sabharwal has

also addressed the issue while delivering the lecture on Sobhagmal Memoriallecture on 25th July 2006. The CJI outlined a five-point agenda to cope with

tribulations facing the judiciary. Justice Lodha called for an allyear justicedelivery system. Law and justice field has its dignity and it must be maintained in

order to keep the trust of the people in judicial system, he added.Judiciary should

indeed be developed so as to ensure the enforcement of the rights of the citizens, asenvisioned by the Constitution of India. Enforcing the five point agenda will

indeed, allow the citizens to value and expand their rights rather than allow them to

be crippled by the handicaps of judicial power or budgeting concerns.5

In this article I am confining myself with criminal justice delivery system because

one of my reader R.Mohandoss has requested while commentating on my articleDeclining credibility of judicial precedent in India6 that I should write to cut short

delay in criminal justice delivery system. The delay in criminal justice delivery

system may be categorized as, First to check un necessary institution of criminal

cases at vary inception which are being instituted for statically purpose at policestation and some time judiciary force the police to file more case so that it can be

showed disposal in their popular program me for which they get huge budget fromgovernment(Lokadalat) and lastly police submits unmerited cases in court for

political compulsion and otherwise. Secondly, how to decide the cases pending incourts.

(1)The Role of judiciary:- Present judicial system is based on the system which

prevailed during British raj, where imparting justice to masses was not priority.

the main aim of the judicial system was to protect the interest of the ruling class

with semblance of being just and fair to the ruled. This system is totally out of

tune with the tenets of a welfare state which we adopted after independence butsuccessive governments which came did not find enough time to make/ amend

4Chief Justice A.S. Anand: Indian Judiciary & Challenges of 21st century. The Indian Journal ofPublic Administration July-Sept 1999 Vol XLV No. 3, p 299

5CJI R M Lodha on Law live.com dated 19thmay 20146Article on lawyers club India.com


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the British law which were meant to suppress the ruled . in this connection it will

not be out of place to mention that large number of vacations system i.e summer

vacation, winter vacation, Dashara vacation , Durga puja etc. The vacations nearly

eat away and consumes about 60 working days besides Sunday, saturaday and

other festivals and National holidays in a year was introduced in judicial system

for British judges . The summer vacations was intended to help Europian judges in

pre- Independence period to go to England and spent some time in their country.

When more than three crores of cases are pending in Indian courts. It is highly

unfair to judicial institution to have 60 ideal days on this score.

There is constant demand of appointing judges in proportion to population . The

such demand can be justified in sectors of basic human need which popularly

known as Roti, Kapara and Makan and in this list we can aid some other sectorlike Health, education, nutration and drinking water etc . National resources mustbe utilized for welfare of maximum number of people and not on any institution

who is not utilizing there available resources . All essential services work round

the clock but judiciary enjoy large noumber of vacations i.e summer vacation,

winter vacation, Dashara vacation , Durga puja etc. The vacations nearly eat awayand consumes about 60 working days besides Sunday, saturaday and other festivals

and National holidays in a year and was inherited by colonial rule. Thus in theabove background it is to be seen that how system can yield more result in

present available resources because India is a poor and developing country and

can not afford more budget allocation to this sector as we still failed to provide

basic human need/ facilities to our citizen and in that sense I am proposing solutionof problem within present available resources .

(i) lack of punctuality, laxity and lack of control over case-files and court-

proceedings, attending social and otherfunctions during working hours contributein no small measure in causing delays in the disposal of cases7.

(ii) Some judges are very liberal in granting adjournments.(iii) Some judges come to courts without reading case-files, therefore, the lawyers

have to spend a lot of time just to explain the facts of the case and legal point (s)involved therein. Therefore, they argue at length and all this leads towastage of

precious Courts Time. There is a great need for self improvement by Judges.

7CJI A.S. Anand: Indian Judiciary and Challenges of 21st century: The Indian Journal of Public

Administration: July-Sept 1999 vol XLV No. 3, p 300


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judiciary first itself has to honestly take imitative to curb the delay in disposal

of case rather than to blame government and other component of system. First stepin this direction must be deploy allof its judicial officer in judicial work as it will

be surprising to know that about 10% of their strengthen are working on

administration in govt./ Departaments and High court Registry which can well beperformed be administrative / other legal services ofiicers of state. In Rajasthan

judicial officers are working on post of Principal secretary to dy. Secretary ingovernment, Registrar General to Dy. Registrar in High court administration, in

legal services, vidhan sabha, publicservise commission , huminrights commission,Lokaykut etc. to perform totally non judicial function. Judiciary is always

demanding for increasing posts but they are not utilizing the available officer in

judicial work and that not for any pious reason but as every body aware inadministration there are easier opportunity of making money/ obliging people and

developing liaison.

(2) Role of GovernmentThe state is also responsible for causing delay in the dispensation of justice. Thegovernment "contributes" to theproblem of delay by its own lack of priority for

matters relating to the administration of justice. This may happen indifferent ways,

namely - delay in judicial appointments8lack of manpower needed for maintaining

an efficient and areasonable legal system and lack of adequate infrastructurefacilities in the Court both for the bench and the bar9.Poor infrastructure in the

courts and absence of computerized records etc. This is the age of technology,today even the smallest office in the private sector is well equipped with computers

andother electronic gadgets, which help them to raise their efficiency and update

their records. But our Judiciary has notbeen provided with the technical assistanceof faxes, dicto-phones and other such devices. Almost all the courts have heaps of

rotten files in the basement. In District Courts one can see courts working withoutelectricity. Thus, though weare living in the age of computers, yet our

methodologies are outdated and urgently need a re-look.No fixed period for

disposal: There is no time limit fixed either by any Act or Code within which thecases must bedecided. Therefore, the judges, lawyers and even the litigants take it

for granted that there is no urgency to finish thecase. The cases drag on for yearstogether.

8CJI K.G. Bala Krishnan, as quoted in Hindustan times, 25 Sept, 2007 has said that India

required 1539 more judges in H.C. and 1, 8479 in sub-ordinate courts to clear the back log ofcases in one year.

9CJI K.G.: Balakrishnan in April, 2007, blamed the government for poor judge population ratio,

making laws without judical impact assessment and not setting up courts to adjudicate casesarising out of central laws quoted in H.T, 25 Sept, 2007


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(3)Role of Lawyers

The role of lawyers is very important in justice delivery system. The commitmentof these professionals can change the whole scenario. Unfortunately, they are also

responsible for delay due to varied reasons.

(i) Lawyers are not precise; they indulge in lengthy oral arguments just to impresstheir clients.

(ii) Lawyers are known to take adjournments on frivolous grounds. The reasonsranges from death of the distant

relative to family celebrations. With every adjournment the process becomes costlyfor the court and for the litigants; but the Lawyers get paid for their time and

appearance. More often than not, lawyers are busy in another court. They

have taken up more cases than they can handle, hence, adjournments are frequentlysought.

(iii) It is also true that lawyers do not prepare their cases. A better preparation of

the brief is bound to increase the efficiency of the system.(iv) It is seen that lawyers often resort to strikes. The reasons could be any - itranges from misbehavior with their colleague both inside court or outside the court

to implementation of some enactment. The strike by lawyers against the decision

of the government to enforce an amendment in the Civil Procedure Code is

an example. This was very unfortunate because the main objective behind theseamendments was to curtail delays in disposal of cases.

However, the Supreme Courts Judgment in Harish uppals v Union of India10thatlawyers had no right to go on strike or give a call for boycott not even a token

strike, will certainly discourage the lawyer to go on strike unless they really had a

strong cause. In this case the Supreme Court had issued specific directions thatLawyers should not resort to strike except "In rarest of the rare cases" and instead,

peaceful demonstrations should be held, such as wearing of the arm band, so thatcourts working is not affected. The Supreme Court held:

The law is already well settled.. a lawyer who has accepted a brief can not refuse

to attend court because a boycott call is given by the Bar Association thecourts are under an obligation to hear and decide case brought before it and can not

adjourn matters merely because lawyers are on strike that it is the duty andobligation of courts to goon with matters or otherwise it would be tantamount to

becoming a privy to the strike.. Lawyers have known, at least since Mahabirscase11that if they participate in a boycott or a strike, their action is Prima-facie bad

in view of declaration of law by this court that advocates would be

10. AIR 2003 SC739

11Mahabir Prasad Singh Vs Jack Aviation (P) Ltd. AIR 1999 SC 287


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answerable for consequences suffered by their clients if the non- appearance was

solely on the grounds of a strike call. The court further observed: The court may,however, ignore protest, absentation from work by lawyers for one day in rarest of

rare cases, where the dignity, integrity and independence of the bar and/orbench

are at stake.Stating it in clear terms that any interference from any body or authority in daily

administration of justice cannot be tolerated and that the court can and will takedisciplinary action against an advocate for non-appearance by reason of a

call for strike or boycott it has been suggested (as per justice B.M.Shaw) that theadvocates can get redressal of their grievances by passing resolutions, making

representations, taking out silent processions, holding dharnas, can resort to

relay fast and can have discussions by giving T.V interviews or press statements.So the need of the hour is that the lawyers must behave in responsible manner and

restrain themselves from resorting to strikes etc.This fact can be fortified by last

three years figures of Jaipur courts in state of RajasthanChart of lower court working days in Jaipur,Rajasthan

year No of

working

days in a

year

Condolences/Strike

By advocates

Leave period of

judges

No of days

Court

functioned in

a year

% work

done in

working

days

2012 273 40 45 188 68%

2013 279 57 45 171 62%

2014

31.3.14

68 20 15 33 48%

From the above table it is clear that working days in courts in 2012 out of

273 days only 188 days courts function in a year, about 69 % of total working

days and in other words courts do not work on 39% working days. Similarly in the

first six months of 2013 out of 138 working days on 65 days court did not worked

and this comes about 50% of total working days as shown in chart below. It can be

well imagined how the mounting arrears of cases will be decided when courts work

only with 50% capacity. In brief if I say that in Rajasthan in 2012 courts worked

only in 68% of working days and in half year of 2013 only on 62% working days


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courts functioned and it goes on decreasing up to 48% till March 2014as shown in

chart below

This criticism from the Supreme Court of India pithily sums up the problem

facing witnesses that the witnesses are a harassed lot. A witness in a criminal

tr ial may come from a far -of f place to fi nd the case adjourned. He has to come to

the Cour t many times and at what cost to his own-self and hi s family is not

dif f icult to fathom. I t has become more or less a fashion to have a criminal case

adjourned again and again ti l l the witness tires and he gives up. I t is the game of

unscrupulous lawyers to get adjournments for one excuse or the other til l a

witness is won over or is tired. Not only that a wi tness is thr eatened; he is

abducted; he is maimed; he is done a way withs; or even br ibed. There is no

protection for him. In adjourning the matter without any valid cause a Cour t

unwit tingly becomes party to miscarr iage of justice.A witness is then not treated

with respect in the Court. He is pushed out f rom the crowded cour troom by the

peon. He waits for the whole day and then he f inds that the matter adjourned. He

has no place to sit and no place even to have a glass of water. And when he does

appear in Cour t, he is subjected to unchecked and prolonged examination and

cross-examination and f inds himself in a hapless situation .or all these reasons

and others a person abhors becoming a witness.It is the administration of justice

that suffers. Then appropriate diet money for a witness is a far cry. Here again the

process of harassment starts and he decides not to get the diet money at all..Proper diet money must be paid immediately to the witness (not only when he is

examined but for every adjourned hearing) and even sent to him and he should not

be left to be harassed by the subordinate staff.I f the cr iminal justice system is to

be put on a proper pedestal, the system cannot be left in the hands of

unscrupulous lawyers and the sluggish State machinery12.Each trial should be

properly monitored. Time has come that all the Courts, district Courts, subordinate

Courts are linked to the High Court with a computer and a proper check is made on

the adjournments and recording of evidence. The Bar Council of I ndia and theState Bar Council s must play their part and lend their support to put the criminal

system back on its trail13

13U P v/s Shambunath 2001 SCC 667


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(4)Role of Complexity and Rigidity of Procedural laws

There are two types of laws - substantive laws and the procedural laws.Substantive laws define the rights and liabilities. However the procedural laws

provide a mechanism to enforce these rights and liabilities Most of these laws are

around hundred years old and are not well drafted. Since it is not possible todispense with them, the only possibility is to reshape them because they have

become the biggest stumbling blocks in the way of speedy disposal of cases. TheLaw Commission of India through its various reports14has highlighted these issues.

So much time is wasted on the arguments of jurisdiction, cause of action,sufficiency of notice, amendments of plaint and other

procedural matters. Moreover, the words or terms used in the Bare Acts are highly

technical and difficult (like the words- notwithstanding, nevertheless, proviso,provided subject to the Provision herein after Provided) and hence beyond the

comprehensions of a Common man The procedural laws need to be simplified

because howsoever good the substantive law may be, it can be effective only ifprocedural rules are simple, effective and expeditious. There are many provisionsin these Acts, providing ample opportunities for delaying the disposal of cases.

Even after initial judgment, the opportunity of filling appeals further causes delay,

where the final judgment is secured, execution is more than likely to be returned

unsatisfied. All this contributes to delays.The real problem is that the institution of cases in the courts far exceeds their

disposal. Though there is a considerable increase in the disposal of cases in variouscourts, the institution of case has increased more rapidly[5].

when challan is produced against several accused persons and some of accused are

not apprehended / absconded during trial in such a cases trial remain pending for

their appearance and warrant are not executed for several years and therefore

accused who are attending the trial have to wait till the other co accused appears.

In this respect procedural law should be suitable amended for splitting up the case

against absent accused and proceed with the case with the available accused.

Section 273 cr.p.c states that all evidence shall be taken in presence of accused . as

per the above provision if any one of the accused is not present/ not represented by

his counsel either u/s 205/ 317 Cr P C , the case against other accused could not be

proceeded with. I had a personal experience that some time unscrupulous lawyers

to harass the prosecution witness do not move personal exemption of accused

when they feel that prosecution witness will state against him. Therefore in view of

14The law commission through its 14th, 27th, 41st, 48th, 54th, 71st, 74th, 77th, 79th & 144th report

has dealt with reforms in legislation.


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the above procedural lacuna section 273 Cr.P C should be suitable amended and

empower court to record evidence in absence of accused if circumnstnces so

desires in inters of justice. There are similar provisions in some special laws.

Similarly the revisional and inherent powers vested in High courts were are alsonot in tune with the tenets of a welfare state which we adopted after independence

but successive governments which came did not find enough time to make/ amend

the British law which were not meant to justice at gross root level. Therefore, there

is need to change the procedural law and empower the sessions judge with

revisional and inherent powers so that trial may not delayed .

In the colonial adopted law power to file charge sheet after investigation has

been given to police who investigate the case15

s .As fair trial is integral part of

constitutional mandate similarly fair investigation has also been declared as partof Article 21 of constitution in Vakil Ahamads case by Apex court and as such

agency who is investigating case should not be empowered to take decision as to

whether case should be send to trial. From my experience at least in25% criminal

cases evidence are not sufficient to prosecute but for statically purpose at police

file charge sheet in court and that is totally wastage of courts time. Therefore,

there is strong need to amend section 173 of Cr. P C so that un necessary cases

may not overburden courts. Such power can be extended to prosecution which is

been made solely responsible under criminal procedure code.

(5) Role of prosecution

Prosecution play pivotal role in disposal of criminal cases. Neither the law

commission nor Judges even mention it importance in disposal of cases. In our

country prosecution need to be independent and strengthen. Union government

has made several efforts by amending the criminal procedure code to make this

agency more effective and independent but all remained in books16

. In code of

criminal procedure there are power of withdrawal with prosecution but never

exercised independently and these powers are usually used by govt. in power for

their political ends. Similarly, there are provisions of plea bargaining17

which if can

15Section 173 Cr.P.C16Section 25 A Cr P C introdured by amendement bill 200517Section 265 A to 265l and section 321


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implemented can curb down the pendency to larger extent but these powers are

exceptionally used by prosecutors. Not a single state or union in country has

implemented the provisions of section 25A which are meant for effective

functioning of prosecution and reason is also obvious that all political party wants

to use services of their member of party who works in election for them to

appoint them as public prosecutor from sessions court to highest court of state

and Nation. In Vineet narains18

case the Apex court has stress the need of strong

and independent prosecution in country akin to U K but all remains in vain for

political vested interests. However, with the coming of new Modi government we

must hope that if issue is brought in his knowledge his government may take

positive initiative in this regard.

Presently power to form opinion in respect of charge sheet after investigationhas been given to police who investigate the case

19s .As fair investigation has also

been declared as part of Article 21 of constitution in Vakil Ahamads case by Apex

court and as such agency who is investigating case should not be empowered to

take decision as to whether case should be send to trial. From my experience at

least in25% criminal cases evidence are not sufficient to prosecute but for for

statically purpose at police file charge sheet in court and that is totally wastage of

courts time. Therefore, there is strong need to amend section 173 of Cr. P C so

that un necessary cases may not overburden courts. Such power can be extended

to prosecution which is been made solely responsible under criminal procedure

code.

The alarming situation calls for speedy remedial measures.

These should be practical and effective. These reforms should be capable ofproviding speedy and efficient justice which is accessible to the common man.

Equally important steps should be taken to enforce judicial accountability and

independence of the judiciary. Several law commission reports have made a case

18AIR 1991SC19Section 173 Cr.P.C


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for many specific and practical judicial reforms. However, little has been done to

address thisgrowing crisis.To start with the government, the Judges, the lawyers

and litigants - all must have a positive will and strong determination to remove

these ills from our system.

(1)Shift System:20

No doubt, because of financial constraints the creation of newcourts is not feasible. To establish a new court at anylevel involves enormous

expenditure. The appointment of whole time staff - judicial and administrative

to new courtsand building infrastructure involves considerable recurring

expenditure which the government cannot afford. There is away out. If the

existing court could be made to function in two shifts with the same

infrastructure, utilizing the servicesof retired judges and judicial officers

reputed for their integrity and ability, which are physically and mentally fit,

itwould ease the situation considerably and provide immense relief to the

litigants. The accumulated arrears could bereduced quickly andsmoothly.

21Urgent need for filling of old vacancies and creation of new

(2)Litigation should not be Encouraged Another method to reduce the backlog is

that the quantum of cases coming to the courts must be reduced. The Judges

should be very strict at the first stage itself. They should distinguish between

frivolous and genuine litigation and should discourage frivolous litigation.

(3)Expert Advice-The court can take the help of management experts to schedule

the cases for hearing in a day.

(4)Fixing Time Limit-Time limit should be set for hearing a case as also for giving

decision.(5)Restriction on Adjournments-Adjournments to be limited to emergencies and

exceptional cases. It is common sight for a popular lawyer to handle several

cases every day which needs his presence in different courts. This forces him

to focus on one or two and seek adjournments on others.

(6)Judges must not be posted in administrative jobs: there is general tendencyof judges to work on administrative post because there are more scope of

favour and relationship which they Ancash in their life time . Madhapradash

high court has recently withdrawn judicial officers who are functioning in

20The law commissions 125th report dated May 11,1988 has recommended introducing shiftsystem in the supreme court to clear backlog of cases by deploying retired judges

21P.P Rao: Access to justice and delay in disposal of cases published Sournier on in All India

Seminar on judicial reforms with special reference to arrears of court cases p.


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administration of government / High court administration but in other High

courts about 10% of total strengthen of judicial officers are enjoying post in

administration.

(7)ConclusionIn a country like India with a population of over a 100 crores and large vested

interests there are obviously many litigations filed before courts at an

increasing pace. New initiatives like fast track courts, evening courts, lok

adalats and conciliation and mediation centers , no doubt have helped provide

speedy trials and remedies. But still the backlogs in courts have not yet

decreased. Our Hon'ble Chief Justice K. G Balakrishnan in a conference of Chief

Ministers and Chief Justices on April 19, 2008 pointed out the delay made in

the decision of cases at all stages which inevitably leads to accumulation of

arrears and dissatisfaction in public mind about the effectiveness of court

process for ventilating their grievances. It is a matter of concern that there are

arrears of more than 2.5 crore cases in all of our courts. Over 2/3rd of these

are criminalcases. While there has been some progress in reducing pendency

in superior courts, the position in subordinate courts has hardly shown any

improvement. The above statistics were given by our Hon'ble Prime Minister,

Mr. Manmohan Singh at the aforesaid conference. Therefore, there is an

urgent need for a speedy disposal of cases and legal processes and procedural

matters. It is a well known fact that "Justice delayed is justice denied". Article

21 of the Constitution of India provides, " No person shall be deprived of his

life or personal liberty, except according to the procedure established by law."

The courts in various cases have held that right to life under Article 21 includes

right to speedy trial, only through which right to life can be attained. Thus, to

ensure a speedy trial, and to provide for right to life enshrined in our


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fundamental rights, the concept of plea bargaining has been introduced in the

CriminalProcedure Code through the CriminalLaw (Amendment) Act, 2005.

The idea of plea bargaining enables the prosecutor and defendant to settle the

case by the defendant pleading guilty and the prosecutor in return agreeing to

reduce the charge against the defendant. Though there are defects in its

working it has proved to be beneficial for both the parties, ending the undue

delay caused in litigations. Further, as additional justification it is believed that

considerable resources would be saved if judiciary works with its full

strengthen in only judicial work and provide allyear justice delivery system as

propagated by Hon'ble Chief Justice R M Lodha in his five point agenda to

cope with present backlog pending cases22

. Therefore, strengthening

prosecution agency and plea bargaining besides accountable and transparent

working in judicial system as discussed above has become a necessity in the

present scenario to dispose of the litigations in a speedy and effective manner.

J S Rajawat,Advocate

Spl P P C.B.I./Jaipur

22CJI R M Lodha in his five point agenda to cope pending backlog on Law live.com dated 19thmay 2014

Delay in Justice Delivery System by j s Rajawat

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