India: The Right To Speedy Justice & New Avtar Of Fast Track Courts

Last Updated: 29 May 2002
Article by Sangita Bhalla

Right to speedy trial is the essence of criminal justice and there is no doubt that justice delayed is justice denied. In United States speedy trial is one of the constitutionally assured rights. European Convention on Human Rights also provides that everyone arrested or detained shall be entitled to trial within reasonable time or to release pending trial.i Though right to speedy trial is not specifically enumerated as fundamental right in Constitution of India, it is implicit in the broad sweep of Article 21 ii. Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure established by law. Moreover, the procedure should be reasonable, fair and just. The procedure cannot be fair unless it ensures speedy trial for determination of the guilt of the accused. There can be, hence, no doubt that speedy trial (reas1onably expeditious trial) is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.iii Though the current system on academic plane provides this fundamental right but it faces a crucial crisis due to notorious delays iv. The backlog of about 2 crore cases in the lower courts and 35 lakh in High Courts is the most sneering evidence of the inadequacy of the system. The inordinate delay in the disposal of court cases induces the public to hunt for justice through extra judicial means. Two-thirds of all the cases pending in lower courts are criminal, where 94 per cent of the accused go scot-free. To put it differently the conviction rate is as low as 6 per cent. This raises the question about the efficiency as well as credibility of the criminal justice system.

Connoisseur bodies commencing from the 1925 Report of the Rankin Committee have highlighted the reasons accountable for this trend. Shortly after independence the High Court Arrears Committee was constituted under the chairmanship of Justice S.R. das. It submitted its report in 1949.In 1972 Justice J.C.Shah submitted another report v . Besides the reports of successive Law Commissions of India also verified the urgency of combating the problem of over load. Number of times the Apex Court too has glossed upon the matter and issued directions to reduce the ever mounting arrears of cases before the courtsvi. Most of these recommendations have been given a practical shape, but the position instead of improving has further deteriorated. Such an apathetic state of affairs has become a matter of concern to all. The reasons for delay are many and could be classified as court related, legal profession related, litigants related and State related. For the purpose of this article most important reason is the State’s lack of priority for matters relating to administration of justice. vii The number of judges appointed replicates no logical equation with the rising court cases and populace. Hon’ble Kirpal, J. (as he then was) in All India Judges Association & Ors v. Union of India &Ors viii pithily stated the anguish of all bothered about holdups in dispensation of justice (JT para24, pp.521-22):

"An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied. Time and again the inadequacy in the number of judges has adversely been commented upon. Not only have the Law Commission and the standing committee of the Parliament made observations in this regard, but even the head of judiciary, namely, the Chief Justice of India has had more occasions than once to make observations in regard thereto. Under the circumstances, we feel, it is our constitutional obligation to ensure that backlog of cases is decreased and efforts are made to increase the disposal of cases. Apart from the steps which may be necessary for increasing the efficiency of the judicial officers, we are of the opinion that time has now come for protecting one of the pillars of the Constitution, namely, the judicial system, by directing increase, in the first instance, in the judge strength from the existing ratio of 10.5 or 13 per 10 lakh people to 50 judges for 10 lakh people. We are conscious of the fact that overnight these vacancies cannot be filled…The increase in the judge strength to 50 judges per 10 lakh people should be effected and implemented with the filling up of the posts in a phased manner to be determined and directed by the union ministry of law, but this process should be completed and the increased vacancies and posts filled within a period of five years from today."

The remarks of a seven judges bench in P.Ramachandra Rao v. State of Karnataka ix are also pertinent here (JT para 20,pp 105-06):

"…The root cause for delay in dispensation of justice in our country is poor judge population ratio. Law Commission of India in its 120th report on man power planning in judiciary (July 1987), based on its survey, regretted that in spite of Article 39A added as a major directive principle in the Constitution by 42nd amendment (1976), obliging the state to secure such operation of legal system as it promotes justice and to ensure that opportunities for securing justice are not denied to any citizen. Several reorganization proposals in the field of administration of justice in India have been basically patch work, ad hoc and unsystematic solutions to the problem…The judge-population- ratio in India (based on 1971 census) was only 10.5 judges per million population ….The Law Commission suggested that India required 107 judges per million of Indian population; however to begin with the judge strength needed to be raised to five –fold. i.e. 50 judges per million population in a period of five years but in any case not going beyond ten years. Touch of said sarcasm is difficult to hide when the Law Commission observed (in its 120th report, ibid) that adequate reorganization of the Indian judiciary is at the one and at the same time everybody’s concern and therefore nobody’s concern."

Though recently Central Government has woken up from the forty winks. To expedite the disposal of mounting arrears of cases diverse measures are being taken. These include plugging up the vacancies of judges, appraisal of the working days and annual vacations in High Courts, District and Subordinate Courts, and rationalization of rules and procedure etc. x Above and beyond, on the recommendations of the 11th Finance Commission the Central Government has decided to establish 1734 Fast Track Courts especially for clearance of lingering cases in district and subordinate Courts and cases involving under trials in jails. Under Article 275 of the Constitution Rs.502.90 crores have been allocated to the States to establish such Courts in consultation with the respective High Courts.xi The proposed courts are to be ad- hoc in nature and would continue till March 2005 only. These would not be a permanent addition to the courts in a particular state. Consequently, the Finance Commission suggested that the states might consider the re-employment of retired judges for limited period to dispose of long awaiting cases. For it is believed that opportune setup and smooth performance of these Courts would assist the system considerably in upholding its credibility, attenuating the congestion in the prisons, improving the penitentiary management and plummeting the jail expenses.xii

Despite concern of one and all a propos the harms caused by lingering court cases, the Fast Track Court Scheme has been in thick of controversy from day one. On one hand a Bench of the Apex Court headed by Chief Justice A S Anand, (as he was then) while hearing a PIL on shortage of subordinate courts and the plight of under trials in jails observed that Fast Track Courts Scheme would be a "non-starter" as it was announced without any consultation with the Apex Court.xiii On the other hand, in Brij Mohan Lal v. Union of India & Orsxiv the validity of the scheme was challenged, mainly on two grounds. One, there was no Constitutional sanction for employment of retired judges and effective guidelines were not issued in this respect. Two, the infrastructure and the other facilities are not sufficient to make the Scheme successful. Hon’ble Arijit Payasat, J.while speaking for the three judges Bench upheld the constitutionality of the Fast Track Courts. He observed that though under Article 234 of the Constitution the Governor of the state has the power to appoint members of the judicial service of the state other than district judge. But such appointments could be made only after evocative consultation with the concerned High Court. The power to engage the judicial officers does not include the power to confirm the promotion of the judicial officers. To ensure the independence of the judiciary such power has been entirely vested in the High Court as elucidated by the Summit Court in State of Assam and Anr. v. S. N. Sen and Anr.xv While the High Court has to play an important role in the implementation of the Fast Track Court Scheme, in line with the constitutional mandate, thus the Apex Court upheld the scheme as intra-vires. But the Court took stern note of the issue of the appointment of judicial officers lacking integrity and veracity to these courts. So, while appreciating the purpose for establishment of Fast Track Courts and discerning some grey areas in the Scheme, the Summit court issued the following directions xvi:

The Fast Track Courts shall grant priority to the clearance of oldest sessions cases and the cases involving under trials in dungeons. Correspondingly the protracted civil cases shall get primacy over the fresh cases.

To recommend the selection of the judges of the Fast Track Courts the Chief Justice of the concerned High Court shall constitute a committee of at least three judges of the High Court. The proposals of such committee shall be approved by full High Court.

While suggesting the names for promotion as judges of the Fast Track Courts, in accordance with the formula in force in the matter of promotion in judicial services, the eligible judicial officers shall be the first choice. Amongst them preference must be given to judicial officers on the brink of retirement, depending on their good physical health.

The elevation to Fast Track Courts shall be purely on ad-hoc basis. Such appointment shall not entitle the appointee to claim any regular promotion. The service provided in the Fast Track Court shall be taken as service in the parent cadre for all purposes.

Before the promotion of the judicial officers to the Fast Track Courts, a special recruitment process shall be launched on priority basis, to fill up the resulting as well as existing posts in the subordinate courts. Within one month of the getting of the proposals of the High Court the concerned state government shall take the requisite decisions.

The second choice for appointment to Fast Track Courts shall be the retired judges having good service record and without any adverse remarks in their Annual Confidential Reports re judicial expertise and repute about honesty, integrity and character. Those judicial officers, who were denied the benefit of two years extension of the age of retirement, shall not be considered for appointment.

The judicial officers who have been sacked or removed or compulsorily retired or made to seek retirement shall be ineligible for selection to Fast Track Courts. Likewise the names of the judicial officers who asked for voluntary retirement after opening of departmental proceedings or inquiry shall not be reflected for appointment.

Further the proposed candidates must fulfill the essentials laid down in Articles 233(2) and 309 of the Constitution. The concerned High Court should fix the lowest and highest age of eligibility to ensure that only bodily vigorous retired judicial officers join the Fast Track Courts.

On appointment to the Fast Track Courts such retired judicial officers shall receive the same pay and allowances as they were drawing at the time of superannuation, less the pension due as per rules.

The third choice would be the direct appointment from among the members of the bar, chosen according to the procedure generally followed by the High Court for selection to the superior judicial services. They should preferably be in the age group of 35-45 years. So that, on termination of Fast Track Courts, they may aspire to continue against regular vacancies. The question of their continuation shall be reviewed periodically by the High Court. On satisfactory performance in the Fast Track Courts, they may well be engaged in the regular posts during the next staffing.

The judges of the Fast Track Courts shall be covered by same rules and regulations regarding leave, reimbursement of medical expenses, traveling allowance, dearness allowance, conduct rules and such other service benefits, as are applicable to the members of the judicial services of the equivalent status.

The High Court and the state government shall ensure that the work in Fast Track Courts should not be affected because of shortage of staff. Additional staff shall be made available out of the savings of the existing allocations by the central government.

The Fast Track Court Scheme has made no stipulation for the appointment of the public prosecutor and process servers. At least one public prosecutor might be assigned for each such court, as he is the backbone of the justice delivery system. The expenses for the same shall be meted out of the allowance under the head ‘Fast Track Courts’. For process serving the existing system could be deployed.

A state level committee presided by the chief secretary of the concerned state shall supervise the creation of allotted number of Fast Track Courts and their proficient functioning, consistent with the policy declared the Central Government.

The High Court and the state government must take the steps to create all Fast Track Courts during the fixed time with the guarantee that all the vacancies in these Courts are filled within three months from the date of judgment.

The funds allocated under the Fast Track Court Scheme shall be employed exclusively and promptly for the execution of above said scheme. The utilization certificates shall be mailed to the central government sporadically and the Government of India shall quickly release the funds to the state governments on delivery of the utilization certificates.

To scrutinize the disposal of cases by the Fast Track Courts and to take care of their intricacies and deficiencies at least one administrative judge of the High Court shall be designated in each High Court.The state government shall provide the necessary assistance to the administrative judge.

On the basis of the report of the administrative judge the concerned High Court shall occasionally appraise the performance of the Fast Track Court and take the instantaneous corrective steps.

Moreover, if already a person not fulfilling the conditions specified in these directions has been appointed as judge of any of the Fast Track Courts, the concerned High Court shall take abrupt measures to terminate his appointment.

To ensure compliance with these directions the copies of this judgment shall be sent to each High Court and concerned state government by the registry of this court.

Every High Court and the state government shall submit the quarterly reports on the status of the Fast Track Courts for the reflection by the Apex Court.

It is hoped that these guidelines probably be enough to stamp out the preliminary tribulations assaulting the Fast Track Courts Scheme. The new avtar of Fast Tracks courts shall bring relief to the litigants suffering from the delayed justice.

Dr. Mrs. Sangita Bhalla, Sr. Lecturer, Department of Laws, Pan jab University, Chandigarh.

iArticle 3.

ii Scope of this right encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. Mahendra Lal Das v. State of Bihar, (2002) 1SCC149;also see Abdul Rehman Antulay v. R.S. Nayak; Santosh v. Archana (1994) 2 SCC 420;Anil Rai v. State of Bihar (2001) 7 SCC 318;Akhari Bi v. State of M.P., (2001) 4 SCC 355& Bipin Shantilal Panchal v. State of Gujarat (2001) 3 SCC 1.

iii Maneka Gandhi v. Union of India AIR 1978 SC 597;Hussainara v. State of Bihar AIR 1979 SC 1360;Raghubir Singh v. State 1987 SC149;

iv For classical example of judicial delays see`102 and still going Strong by Manish Tiwari, THE HINDUSTAN TIMES On line, Chandigarh, April 1," THIS LAND is my land. This country song from Yankee land could as well be the theme song of four generations of a family from Punjab. Through a century and more, the family has fought over a piece of land, various sections claiming it as theirs. And the battle is hardly over.

It all began in 1899 over a piece of land in what is now Pakistan. When partition came the family came to India. So did the litigation. The fight was now over land allotted to it in India as a compensation for land left behind in Pakistan.

After going through various lower courts, in 1976 the case went to the Punjab and Haryana High Court when Surdarshan Lal Datta, grandson of Jaswant Rai, moved against the Union of India and others demanding his share of the land.

He won the case in 1983 but soon some other members of the extended family, now in its fourth generation since the case was first filed, challenged the judgment. The case has been listed but not heard since.

The case has seen over 140 claimants to the land, gone to the Privy Council in London twice, the Lahore High Court twice, the Court of Financial Commissioner (Punjab) twice and to the Supreme Court of India once. Most of the litigants are dead; yet the case goes on - the only difference is one generation of litigants has been replaced by the next.

"A classic illustration of a litigation engulfing entire generations" is how Justice S S Sodhi, dealing with the case, had described it.

And this is not the lone case that has survived generations. High Court lawyer D S Kamra says: "Thousands of cases have been languishing in the courts for decades. Delays are endemic. If it takes more than a decade for the court to start hearing a case, litigants may as well battle it out on the streets."

v This Report was confined to the malady of arrears of cases before High courts only.

vi See also P. Ramachandra Rao v. State of Karnataka JT 2002 (4) SC 92.

vii This may take different forms such as delay in judicial appointments, poor quality of judges appointed to the judiciary, insufficient manpower for maintaining efficient legal system, inadequate infrastructure both for the Bench and the Bar etc.

viii JT 2002 (3) SC 503.

ix JT 2002 (4) SC 92.

x Recently Parliament has passed Code of Civil Procedure (Amendment) Bill,2000, to put justice on fast track.

xiBy December 31,2001 out of the 919 Fast Track Courts notified by the state governments 579 were operational. The process for the setting up of 642 more courts was likely to be completed by March, 2002.These courts have disposed of 18,467 cases by the end of the year 2001. See `Economic and Corporate News Scan,’ in Corporate Law Cases, February 2002, journal 138-39.

xii Ibid, at present there are about 1.8 lakh under trials in the jails on whose maintenance the State Governments are spending about Rs.316 crores per annum at the rate of Rs.55 per day per person in jail.

xiii See, `` SC: Govt move on fast-track courts to be non-starter,’hindustantimes.com May 3,2001 New Delhi.

xiv JT 2002 (4) SC 605

xv 1971 (2) SCC 889

xvi Supra n. xiv, at pp 612 –15.

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