On Justice Delayed
M.L. Sharma^*

The Kautilyan dictum is as true today as it was in his times, two-and-a-half millennia ago. That punishment purges both society and the criminal is widely acknowledged by modern criminologists and social scientists.

In this, however, it is not punishment alone, but the speed with which justice is administered that is equally important. Speedy justice is, in fact, the sine qua non of criminal jurisprudence. It serves the best interests of both the accused and the prosecution that a trial runs through its course expeditiously. From the point of view of the accused, speedy trial is important because:

Speedy trial is equally necessary from the point of view of prosecution. Delay in trial prejudices the prosecution due to: (a) non-availability of witnesses; and (b) disappearance of evidence by lapse of time. Given the increasing ascendancy of criminal elements in our public life, these imperatives are made all the more urgent as a result of the risk of witnesses being threatened, intimidated or bribed to resile from a truthful version of events.

The concept of speedy trial has been incorporated into the laws of various countries. It found a place in the Virginia Declaration of Rights of 1776, and from there into the Sixth Amendment to the Constitution of United States of America which states that, "In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial". USA also has the Federal Act of 1974, Speedy Trial Act, that establishes a set of time limits for all major events in the prosecution of criminal cases, including information, indictment and arraignment. Similar provisions exist in Canada as well.

The right to speedy trial is recognised as a common law right flowing from the Magna Carta in UK, USA, Canada and New Zealand,³ though this view is not accepted in Australia.

A variety of international conventions have also endorsed the significance of the right to speedy trial, including Article 14 of the International Convention on Civil and Political Rights, 1966. Article 3 of the European convention on Human Rights refers to it as a basic right and provides that, "Every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial".

In India, neither the Constitution nor any existing laws or statutes specifically confer the right to speedy trial on the accused. The genesis of this right lies in the Supreme Court judgement in Hussainara Khatoon Vs State of Bihar⁴ where Justice Bhagwati observed:

No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21 of the Constitution. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21.

Justice Bhagwati also lamented about the shocking state of affairs with regard to the administration of justice in the State of Bihar and exhorted subordinate courts to abandon the antiquated concepts under which pre-trial release is ordered only against bail with sureties, which, the Court observed, had done more harm than good. The Court further noted that if the accused has his roots in the community and is not likely to abscond, he should ordinarily be released on personal bond, and also defined the considerations on which the accused standing in the community was to be evaluated.⁵

The position that a right to speedy trial is implicit in Article 21 of the Constitution was reiterated by a Constitution Bench of the Supreme Court in Abdul Rehman Antuley Vs R.S. Naik. The Court referred to the following observations made in Maneka Gandhi Vs Union of India regarding integral connection between Articles 14 and 21 of the Constitution :

"The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied".⁶

After a thorough analysis of the domestic and foreign case law, the Supreme Court crystallised its view in the form of the following propositions:

i. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. It is in the interest of all concerned that the guilt or innocence of the accused is determined expeditiously.

ii. Right to speedy trial flowing from Article 21 encompasses all the stages namely, the stage of investigation, inquiry, trial, appeal, revision and retrial.

iii. Delay often prejudices the prosecution. The accused often indulge in dilatory tactics.

iv. While determining whether undue delay has occurred (resulting in violation of Right to speedy trial), one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work load of the Court concerned, prevailing local conditions and so on. It is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.

v. Each and every delay does not necessarily prejudice the accused. However, inordinately long delay may be taken as presumptive proof of prejudice.

vi. The ‘demand’ rule cannot be recognised. The mere fact that the accused did not ask for a speedy trial at an earlier stage cannot be put against him.

vii. Ultimately, the Court has to balance and weigh several relevant factors and determine in each case whether the right to speedy trial has been denied in a given case.

viii. In case the Court comes to the conclusion that right to speedy trial of an accused has been infringed, the nature of offences and other circumstances in a given case need to be considered before quashing of a proceedings.

ix. It is neither advisable and nor practicable to fix any time limit for trial of offences. It is for the Court to weigh all the circumstances of a given case before pronouncing upon a complaint of the denial of the right to speedy trial. In this context it may be noted that the Supreme Court of USA has also repeatedly refused to fix any such outer time-limit despite the Sixth Amendment.

x. Any complaint regarding denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. The High Court should ordinarily not stay the proceedings except in a case of grave and exceptional nature.

The same principles were reiterated by the Supreme Court in several subsequent rulings.⁷ In Sheela Barse Vs Union of India⁸ where a petition was filed for the release of all children below the age of 16 years detained in various jails in different States and seeking detailed information in respect of them, the Court observed that the problem of children under detention would more easily be solved if the investigation and trial in respect of the charges against them could be expedited. The Court directed the State governments to take steps for completing the investigation within three months in cases lodged against children and to establish an adequate number of courts to expedite the trial of such cases. A landmark judgement in this context was Legal Aid Committee Vs Union of India in which, while dealing with NDPS Act and Section 309 CrPC, the Supreme Court lay down the conditions for mandatory release of undertrials on bail where trial was not completed within a specified period of time. The Court’s directions with respect to pending cases included:

1. Where the under-trial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an under-trial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence he is charged with prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.
2. Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an under trial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50,000/- with two sureties for like amount.
3. Where the under trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one hundred thousand, such an under trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one hundred thousand with two sureties for like amount.
4. Where an under trial accused is charged with the commission of an offence punishable under sections 31 and 31-A of the Act, such an under trial shall not be entitled to be released on bail by virtue of this order.

The Court, of course, imposed certain conditions in regard to detenues mentioned in clauses (i), (ii) and (iii), including the deposition of passport by the under trial with the court; the under-trial was required to report at the Police Station which prosecuted him at a prescribed periodicity; denial of benefit of these directions to those accused who are likely to tamper with evidence or influence the prosecution witnesses; and obligation of the accused not to leave the jurisdiction of the trial court without the court’s express permission.

These norms were further diluted in favour of undertrials and were extended to all offences in the Common Cause case in 1996. Common Cause, a Registered Society, had moved the Supreme Court under Article 32 of the Constitution with respect to cases pending in Criminal Courts all over the country and asked for certain directions. The Court after considering the genuineness of circumstances relevant to the subject, issued, detailed guidelines for the release of under-trials.⁹

These directions, however, are not applicable to certain categories of offences:

In the second Common Cause judgement,¹⁰ the Supreme Court excluded certain additional categories of offences:

The Supreme Court’s liberal dispensation towards the undertrials continued unabated and it pronounced another land mark judgement giving relief to undertrials in Terrorist and Disruptive Activities (Prevention) Act (TADA) cases in Shaheen Welfare Association vs. Union of India.¹¹ For the purpose of grant of bail to TADA detenues, the Court divided the under trials into four classes:

Adopting a differential approach towards these categories of undertrials, the Court ruled:

In Rajdeo Sharma vs. State of Bihar,¹² the Supreme Court recently supplemented the proposition laid down by the Constitution Bench in Antulay’s case by prescribing specified time limits on various processes in the prosecution of a case:

The Court, however, also laid down that if the delay in trial has been caused on account of the conduct of the accused, no Court is obliged to close the prosecution evidence within the period prescribed above. Further, if the trial has been stayed by the orders of the Court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence.

The Supreme Court also observed in Antulay’s case that the provisions of the Code of Criminal Procedure are consistent with the right to speedy trial and if the provisions of the Court are followed in letter and spirit, there would be little room for any grievance but, unfortunately, these provisions are honoured more in breach. Section 309 of the CrPC provides that the proceeding shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined.

The cumulative impact of these cases established the following principles:

a. the accused has the right to speedy trial ;

b. the provisions of the CrPC are consistent with the right to speedy trial ;

c. if an accused is denied right to speedy trial for any reasons whatsoever, he will benefit in terms of :

i. grant of bail with or without sureties ; and

ii. quashing of proceedings in certain categories of offences.

d. The prosecution evidence is mandated to be closed within the prescribed period of two/three years, as the case may be.

Apparently, the case law referred to is considerably loaded in favour of the accused in our jurisprudence. It is indisputable that the trials are inordinately delayed in India and there is statistical evidence to prove this point. But it needs to be emphasised that the trials, generally, get delayed due to dilatory tactics adopted by the accused who hope to benefit from the resultant non-availability of witnesses and disappearance of prosecution evidence. Delays in trial may also be caused due to other reasons such as an inadequate number of courts and systemic factors over which the prosecution has no control. Regardless of the reasons for delay, the net beneficiary is the accused, who, unmindful of the gravity of offence, is now entitled to liberal provisions for bail and even the quashing of criminal proceedings against him. This, inevitably, results in palpable disadvantage to the prosecution.

In the beginning of 1997, 5.46 million IPC cases were pending trial. Only 19.5% of them were disposed off during the year, leaving a pendancy of 4.39 million cases at the end of the year.¹³ Similarly, 7.75 million cases under the Special and Local laws (SLL) were pending trial in the beginning of 1997. 46.8% of them were disposed off during the year leaving a pendancy of 3.62 million cases.¹⁴ Thus, 8.01 million criminal cases were pending trial at the end of 1997.¹⁵

In order to better appreciate the enormity of the situation, and its impact on law and order and public perceptions of security, it is useful to take a closer look at the nature of crimes in these cases pending trial. Table 1 shows that over 2,30,000 murder and attempted murder cases were pending trial in 1997. The number of theft and burglary cases was over 700,000. 600,000 cases of hurt and 78,200 cases of molestation cases were also pending trial. These major crimes affect public peace and tranquillity and contribute to the widespread and increasing sense of insecurity among the people, highlighting the need for expeditious disposal by Courts.

1. Murder 1,30,731

2. Attempt to commit murder 1,05,437

3. Culpable homicide not amounting to murder 13,857

4. Rape 45,955

5. Kidnapping & abduction 51,252

6. Dacoity 30,857

7. Preparation and assembly for dacoity 4,123

8. Robbery 67,323

9. Burglary 2,02,375

10. Theft 5,14,117

11. Hurt 6,13,770

12. Riots 3,55,743

13. Criminal Breach of Trust 63,457

14. Cheating 91,181

15. Counterfeiting 2,079

16. Arson 25,824

17. Hurt 6,13,770

18. Dowry deaths 16,455

19. Molestation 78,200

20. Other IPC offences 19,82,908

Similarly, as regards pendancies in cases under the various Special Laws and Legislations, Table 2 shows that over 2,00,000 cases under Arms Act alone and another 18,904 cases under the Explosives and Explosives Substances Act were pending trial. In the context of the problem of escalating terrorism in certain parts of the country, this pendancy assumes serious dimensions. Interestingly, the largest pendancy is under minor crime heads euphemistically called ‘other SLL Crimes’.

1. Arms Act 2,22,187

2. NDPS Act 81,462

3. Gambling Act 1,95,252

4. Excise Act 2,94,946

5. Prohibition Act 14,32,447

6. Explosives & Explosives

Substances Act 18,904

7. Protection of Civil Rights Act 7,369

8. TADA 2,500

9. Essential Commodities Act 24,834

10. Dowry Prohibition Act 6,186

11. SC&ST(Prevention) of Attrocities Act 37,299

12. Forest Act 11,556

13. Other SLL offences 12,80,130

Pendancies are disturbingly high in the High Courts as well (Table 3). According to the Annual Report of the Ministry of Law, Justice and Company Affairs (1997-98), 1.13 million cases were instituted in the High Courts during 1996 and 1.02 million cases were disposed of. The pendancy of cases as on 31.12.1996 stood at an alarming 3.11 million.¹⁸

As regards individual High Courts, the highest pendancy was in Allahabad High Court (860,000) followed by Chennai (310,000); Mumbai (234,000); Punjab and Haryana (161,000); Karnataka (150,000). The lowest pendancy of just 88 cases was in the Sikkim High Court.

1950 690

1955 1,338

1960 2,656

1965 2,622

1970 8,663

1975 15,147

1980 37,851

1985 88,718

1990 1,06,027

1991 1,06,397

1992 97,276

1993 58,794

1994 52,950

1995 36,056

1996 23,246

1997 19,032

1998 20,358

The situation in the Supreme Court also worsened steadily right up to the early 1990s, but appears to have turned the corner over the last few years (Table 3). Starting from a situation where pendancies were negligible in the 1950s, a steady deterioration continued right up to the 1980s, when there was a drastic worsening. The highest point was reached in 1990 when pendancies stood at 1,09,237. Since then, there has been a systematic decline: 40% in 1993 over 1992; 32% in 1995 over 1994. Pendancies in 1998 stood at what must appear in comparison to the situation in 1990 as a manageable 20,358. It is understood that the improvements over the past few years have been the result of the application of modern management techniques, computerisation of case records, and the bunching of criminal cases involving common legal points. Greater stringency in the admission of Special Leave Petitions (SLPs) has also helped.

Unfortunately, the methods adopted by the Supreme Court have not been emulated or adopted by the High Courts and the trial courts, where the situation continues to worsen steadily.

The impact is disastrous. Increasing delays in trial have resulted in poorer conviction rates (Table 4). As the percentage of trials completed in IPC cases has declined over last three and a half decades, so has the conviction rate. The disposal of cases fell from 30.3% in 1961 to 16.1% in 1997, and the conviction rate followed suit, crashing from 64.8% in 1961 to 38.2% in 1997. There is thus a clear and direct co-relation between the percentage of trials concluded and the conviction rate, and the impact of delays on law enforcement and internal security can well be imagined.

We have looked at the problem from the point of view of crime cases instituted. Now, let us also look at the problem from the angle of persons involved. While it is pertinent to point out that 2.57 million persons were arrested under various IPC crimes during 1997, what is most disturbing is that 11.65 million persons (constituting 1.2% of the country’s total population) were awaiting trials for various IPC offences in Criminal Courts during that year.²¹ Cases in respect of just 18.8% of accused persons were disposed off, leaving 9.46 million trapped in the uncertainty of a protracted trial process. The overall conviction percentage in IPC cases stood at 32.4%, virtually corresponding to the conviction rate obtained in the criminal cases.

S.No. Year Trial Completed Conviction

1. 1961 30.3 64.8

2. 1971 32.0 62.0

3. 1981 23.9 52.5

4. 1991 16.8 47.8

5. 1994 15.5 42.9

6. 1995 15.1 42.1

7. 1996 15.9 37.8

8. 1997 16.1 38.2

In addition, 8.70 million persons were facing trial under SLL cases in various Courts in 1977.²³ Cases of 3.82 million persons were tried during the year and, of these, 3.31 million persons were convicted for the offences. Thus, the conviction percentage in SLL cases was 86.7 % while the disposal was 46.6 %. SLL crimes are, of course, not as grave as IPC offences, and a number of factors will have contributed to the higher conviction rate. However, the expeditious disposal of these cases will certainly have contributed to the much higher conviction rate, which is almost two and a half times the conviction rate in IPC cases.

Section 167 CrPC prescribes a statutory time frame for conclusion of investigation and filing of charge-sheet, failing which the accused in custody is liable to be released on bail. Certain State Governments, particularly the Government of West Bengal, have amended Section 167 CrPC. to the effect that if investigation is not completed within the prescribed time frame, the Magistrate will not take cognisance of such offences. In other words, it is now a statutory requirement for the Investigating Officer to conclude the investigation within the prescribed time frame failing which the case is virtually lost. The Common Cause and the Raj Deo Sharma ruling have further aggravated the problem. On the other hand, however, no such time frame has been prescribed for conclusion of trials in the statutes. The Supreme Court of India, alarmed at the ever increasing number of cases pending trial, and the incarceration of the accused for years on end, pronounced rulings mandating quashing of criminal proceedings in certain circumstances, and the release of accused persons in custody on bail/bond on liberal terms and conditions. Unfortunately, there are still no firm statutory prescriptions for a time frame for the conclusion of trials.

This clearly loads the situation against the prosecution, who is only one party in the trial. But the co-operation of the Defence Counsel is necessary for a speedy trial, and the docket of the Presiding Officer is also an important consideration. Further, the time taken in a trial depends on the nature and complexity of the case. The Supreme Court rightly observed in Rajdeo Sharma that while determining whether undue delay has occurred it is necessary to have due regard for all the attendant circumstances, including the nature of offence, the number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and other factors that contribute to what are called systemic delays. The Supreme Court has recommended a realistic and practical approach in the matter instead of a pedantic one. Such pragmatism is also embraced in other nations, as expressed by Justice White in US Vs Ewell:

Cases that are prosecuted by the Central Bureau of Investigation (CBI) present special problems, in that they are often extraordinarily complex, involve large numbers of witnesses, and often take an inordinately long time to try. As on 1.5.99, 4354 cases prosecuted by the CBI were pending trial. Among these, pendancies ranged from 1 year to as much as 30 years and more. Of these 4354 cases, Table 5 shows that 2612 had been pending trial for less than 5 years; 1041 for 5 to 8 years and the remaining 711 for over 15 years. Some of the most sensational cases investigated by CBI remained under trial for more than a decade: the case relating to the assassination of Sant Harcharan Singh Longowal was charge-sheeted in 1985 but the trial was concluded in 1998 i.e. after 13 years. The Chandigarh Hijacking case was instituted in 1984 but the trial was concluded in 1996 i.e. after 12 years, despite the fact that the case was being tried by a Special Court that had no other work. Dr. M.S. Dahiya, who was charge-sheeted for killing his wife in Belgium on 31.7.1985, was ultimately convicted in 1999, after 15 years. The case relating to the murder of Nirankari Baba case was charge-sheeted on 20.2.1984 but the trial was concluded only on 27.3.1993, i.e. after 9 years. Syed Modi, an international badminton player was murdered in 1988 at Lucknow, but the trial remains inconclusive till date. The catalogue of such cases is unending. I am personally aware of certain cases relating to violation of fiscal laws that have been pending trial for over three decades. Here, one may reiterate the fact that inordinate delay in trial prejudices the prosecution case.

Years Cases Years Cases

Under 1 506

1 to 2 528

2 to 3 477

3 to 4 597

4 to 5 494

5 to 6 465

6 to 7 335

7 to 8 241

8 to 15 88

15 to 20 415

Over 20 208

Now let us look at average time taken in a trial in USA (Table 6), which works to an average time taken in all offences of 9.6 months. Property offences, it may be noted, take relatively longer to dispose off, at an average of 12.8 months. Crucially, one may note here as well that cases resulting in conviction take a much shorter time on the average than cases that result in acquittal. This is, perhaps, due to the high incidence of guilty plea by the accused in USA.

C: Convicted N.C: Not Convicted Pros: Prosecuted

Dec: Declined

The judicial system in Japan by far is the most efficient and average time taken in the conclusion of a trial is just about three months. One of the basic reasons for this is that over 80% criminals in Japan plead guilty even in cases involving grave offences, and this naturally expedites trials. Table 8 shows that, in Japan, over 70% cases were disposed of by the District Courts in less than 3 months. Summary Courts disposed of about 90% cases within 3 months. In the District Courts, only 5.3% of cases remained pending over one year and just 0.3% over 3 years. In the Summary Courts, these percentages were still lower at 1.8% and 0.1% respectively.

This is a far cry from the position obtaining in India. There are, of course, many reasons for prolonged pendancies in this country, and it is not within the ambit of this paper to explore these. It is important, however, to notice one striking difference between USA and Japan, on the one hand, and India on the other: the percentage of total cases which are formally tried for delivery of judgement in Japan is as low as 7.8% (in 1994) and between 5% and 8% in USA; whereas almost all cases are formally tried in India. In other words, Japan and USA have been able to keep the arteries of their criminal justice system unclogged, making speedy trials possible. This, unfortunately, is not the case in India.

Is the situation in our country really beyond redemption? It is important to reiterate that speedy trial is beneficial both to the accused (and specially the innocent) and to the State. Our legal instrumentalities and administrative processes, consequently, need to be geared to achieve this objective.

As stated above, 8.01 million criminal cases were pending in trial courts at the end of 1997. An additional 3.11 million cases were pending before the High Courts, of which, assuming the proportion of criminal cases at half the total number, it may be assumed that some 1.55 million were criminal cases. Needless to say, we need an adequate number of Judicial Officers to handle these cases. Justice A.S. Anand, the Chief Justice of India, has acknowledged and emphasised the need for increasing the number of Judges and improving infrastructure in the High Court and the subordinate courts. He cited the examples of several European countries such as Britain where the number of Judges per million of population ranges between 90 and 100. In India, however, this number is only 11, which was "rather disappointing".²⁷

To my knowledge, no in-depth study has been carried out by any authority to determine norms for final disposal of cases by the Judicial officers on a monthly or annual basis. Notwithstanding the fact that disposal of a case, inter alia, depends on several factors, including the nature of the case and the complexity of the issues involved, it is still possible to evolve some, albeit crude, norms that could help fix accountability on Judicial Officers. It is now imperative for the superior judiciary to initiate an in-depth study of the problem and to evolve definitive norms. This would also create necessary pressure on the Government to provide for an adequate number of judicial officers.

The Delhi High Court is understood to have prescribed some norms to determine the number of courts required in a given jurisdiction. The formula defined to calculate the number of courts required is:

No. of cases x 8 = No. of courts
900

To illustrate, if, say, 1000 murder cases are pending in Delhi, the number of courts required would be

1000 X 8 = 8.8 or, say 9 courts.²⁸
900

According to this norm, each court would handle about 111 cases at a given point of time. I am not in a position to comment on the validity of this proposition. It is, however, equally important to determine how many cases a court can finally dispose off in an year and, based on the normative assumption that a case should be concluded in say 2,3 or 4 years, the number of courts could then be correctly determined.

In the absence of firm norms, it is not possible to accurately define the number of courts required to liquidate existing pendancies. There are presently some 11,000 subordinate courts in the country, and this number is evidently inadequate. It would, in the absence of any objective criteria, be advisable at least to double this number in a phased manner over next 5 years.

It is equally important, moreover, to explore alternative fora of adjudication. With the regular courts over-burdened, Lok Adalats can provide an alternative that can help manage this load. 22,452 Lok Adalats are reported to have already been organised all over the country till March 1998,²⁹ and had disposed off 6.62 million cases. These cases were not criminal in nature in the true sense of the term, largely being related to day to day difficulties that citizens had with various Public Utility Departments. Without going into the authenrticity of the statistics quoted above, it is undeniable that Lok Adalats have tremendous potential in finding solutions by settlements. It is heartening that the Parliament, by enacting the Legal Services Authority Act, 1987, has conferred legitimacy and recognition on the Lok Adalat system. It is now time to seriously examine the viability of handing over to the Lok Adalats all criminal cases punishable with imprisonment of 3 years or less. Under existing law, the award of the Lok Adalat is deemed to be a decree of the civil court, and every such award is final and binding on the parties to the dispute. No appeal is provided to any court against the award. The Legal Services Authority Act, 1987, would require suitable amendment to bring criminal cases into the ambit of Lok Adalats.

Another method of taking off the burden of regular courts may be the appointment of Advocates with requisite experience and reputation as Temporary Magistrates with the authority to dispose of cases that may be tried by a Magistrate. India has a large legal community of over 600,000 qualified professionals. Not all of these have flourishing practices, and at least some of them are imbued with a sense of public service. Panels consisting of a sitting High Court Judges as Chairman with District Judges and the Chairmen of the Bar Councils as members, could be authorised to prepare panels for each District drawing on Advocates who were willing to be appointed as Temporary Magistrates for fixed tenures of 2 to 3 years. Their number would naturally vary from district to district, depending on the work load. While functioning as Magistrates, they would be deemed to be public servants and would not be allowed to practice privately, and would revert to legal practice after the expiry of their tenure. With 5000 such Temporary Magistrates, assuming that each one of them disposes off 40 cases in a year, 200,000 cases could be cleared annually, with as many as 2 million cases removed from the docket of regular courts over a 10 year period.

Plea bargaining also offers an important option of reducing the number of pending criminal cases. This system was practised in USA for about a century without any legal sanction and with commendable results. Eventually the US Supreme Court, in Brady Vs United States and Santo Bello Vs New York, upheld the constitutional validity of plea bargaining and it has been continued to play a significant role in the disposal of criminal cases in that country. The concept of plea bargaining is, however, alien to Indian criminal jurisprudence. It incorporates two essential components: ‘charge bargaining’ which refers to a promise by the prosecutor to reduce or dismiss some of the charges brought against the accused in exchange for guilty plea; and ‘sentence bargaining’ which refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea. In practical terms, it is a mix of the two that works on the mind of the accused to plead guilty and avoid a cumbersome trial.

The 142^nd Report of the Law Commission of India has given ample justification for the introduction of plea bargaining into Indian jurisprudence. It argued that:³⁰

In its 154^th Report, the Law Commission strongly recommended that the plea bargaining concept be introduced, at least as an experimental measure, for offences which are liable for punishment with imprisonment of less than 7 years, including the offences covered by section 320 of the Code.³²

Underlying all other reforms, however, is the need to improve the quality of legal professionals in the country. Legal practitioners in India are, of course, legion, but is this great number necessary? The answer, obviously, would be in the negative. India has followed the British/American system of legal education that is entirely dependent on market forces. The result is that out of hundreds of thousands, a few prosper and the rest are marginalised. On the other hand, in the Japanese system, entry into the National Law Institute is based on a stiff national competitive examination, and training is supervised by the Supreme Court. After training, a law graduate has the option either to become a Judge, or a Public Prosecutor or to practice at the bar, and Law is a highly esteemed profession in that country. We cannot, of course, entirely dismantle the present system, but it can be improved by imposing more stringent standards for entry into Law Colleges. The overall induction into Law Colleges in a given year, moreover, needs to be consistent with macro-requirements of the country. The progressive induction of a higher calibre of entrants would bring about qualitative improvements in the profession.

A related aspect is the imposition of certain ethical norms on legal practitioners. Malpractice, such as the exploitation of clients, non-appearance in courts on appointed dates, misbehaviour with Judges and involvement in questionable and unethical practices, need to be rooted out. The Bar Councils must play a more active role in enforcing good conduct amongst their members. A qualitative improvement in the legal profession is the surest way of reducing delays in the administration of justice.

Innumerable undertrials charged for petty offences often spend years in prison as a result of their inability to engage competent defence counsel. Indigent litigants suffer enormously, despite the power of the court to appoint an amicus curaie. Cases are often delayed when the accused insist on the appointment of a leading lawyer as the amicus curaie, since the fees demanded by such lawyer exceed the amounts sanctioned by the Government. Clearly, the Free Legal Aid system needs enormous reform and expansion to tackle the challenge of mounting arrears in our justice system.

The option of summary trials has also not been adequately exploited in India. Chapter XXI of the Code of Criminal Procedure deals with summary trials. With Sections 260 to 265 detailing the procedure. According to 260 CrPC, a CJM or a Metropolitan Magistrate or a Magistrate of the First class specially empowered by the High Court may try the case under summary processes. This section also specifies the offences which can be summarily tried as including offences not punishable with imprisonment for a term exceeding two years; offences relating to minor thefts; offences relating to receiving of stolen property of small value; and offences relating to insult with intent to provoke a breach of peace. It may be noted that as many as 1.982 million cases under the head ‘Other IPC Offences’ were pending trial in 1997 (Table 1). Most of these offences would generally be punishable with imprisonment of less than two years and are, therefore, fit for summary trial. Nevertheless, despite the manifest provisions of law, Magistrates appear reluctant to adopt this procedure as it is not legally mandatory for them to try the offences summarily. The attitude of defence counsels is also generally negative, as a quicker trial would mean less money for them. Furthermore, muffusil Magistrates need special authorisation from the High Court for adopting this procedure, and the Chief Judicial Magistrates are saddled with graver offences not falling within the ambit of chapter XXI of the CrPC. As summary trial is a very effective method of disposing of pending cases, it would be expedient to draw a comprehensive list of cases that may be tried under this procedure, and summary trials thereof should be made mandatory rather than discretionary as they presently are. Necessary amendments in law need to be made in this regard.

A comprehensive strengthening of the prosecution mechanism is also an urgent necessity. While it is generally true that the accused is largely responsible for delay in trials in the Indian context, the prosecution mechanism is often also a contributory factor. Before the enactment of the new Code of Criminal Procedure in 1973, the prosecuting agency was under the control of the District Superintendent of Police (SP), who was naturally interested in the successful and early conclusion of cases in the courts. As a result, there was a greater co-ordination between the investigating and prosecution wings to this end. Under the new Code, however, the prosecuting wing has been placed under the District Magistrate at the District level and the Home Secretary at the State level. This has resulted in a lack of co-ordination between the prosecution agency and the police. The prosecution mechanism has, consequently, become somewhat disjointed and tardy. From time to time, and with increasing frequency, summons issued by courts are not served by the police; witnesses appearing before the courts are not examined due to the absence of Public Prosecutors; Public Prosecutors do not adequately brief witnesses, undermining the strength of evidence; adequate security personnel are not provided to the jail authorities to escort prisoners to the courts. All these contribute to cumulative delays in the trial process. Even though it may be against the trend of times, it would be expedient to revert to the old system and place the prosecution agency under the control of the District SP. This would improve co-ordination between the prosecution agency and the police and, consequently, the pace and quality of trials. The career prospects of the Public Prosecutors also need to be improved in order to attract better talent.

The 154^th Report of the Law Commission of India (1973) focused on the CrPC, and devoted a separate chapter (XXI) to ‘Speedy Justice’. Elaborate recommendations were made in this chapter to secure a more efficient management of existing dockets and pendancies. They included the following:

A question is often asked whether the Indian judicial system is inherently defective or whether the problem lies with the practitioners of the system. We have adopted the common law system which, inter alia, is characterised by the assumption of innocence of the accused; right of the accused to remain silent and his right to cross-examine prosecution witnesses. This system is being followed in a large number of countries across the world, and was introduced in India some 150 years ago by the British. A similar system was introduced by the British in several other erstwhile colonies, including Malaysia and Singapore. Singapore is a shining example of the success of the system inasmuch as the average time of trial is very short. What then causes the virtual breakdown of the same system in India? The answer lies in our practice, our slovenliness and moral degradation, and in the unethical patterns of behaviour that afflict the system in India.

A system is good or bad by comparison. The alternative systems of jurisprudence prevailing in the world are the Continental System and the Islamic (Shariat) System. The strengths and weaknesses of both these are too well known to be recounted. In any event, it is easier to reform and improve the existing system than it would be to supplant it with another. We have been practising the common law system for over a century and it would be expedient and practical to reinvigorate it rather than to look for a new one. This, however, would not be possible without the radical reforms, some of which have been outlined in this paper, that can ensure the efficient administration of justice and the conclusion of the trial process within a reasonable span of time.