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Free and Speedy Trial : A critical review on Judicial System

1. Introduction

Every individual in a democratic set up wants freedom. Without freedom no individual can
lead a life as a free citizen of a country. This freedom is known as liberty under the Constitution
of India. Article 21 of the Constitution of India speaks of right to life and personal liberty.
Article 21 was not written on a clean slate. Its birth in the world history can be traced back to
1215, if not earlier, as it was in that year that Magna Carta saw the light of the day. Lest it is
understood that concern for liberty was shown for the first time in 1215, it may be stated that the
history of the origin and development of the concept of personal liberty can be found in Greek
civilisation. Magna Carta of 1215 of course, is the immediate precursor, as it was in that year
that King John granted the Charter of liberties under threat of civil war. King John promised that
“to no one will be sell, to no one will be deny or delay right or justice.”1 Prior to this guarantee,
however, other attempts were made to reduce delay in criminal proceedings. For example, with
the Assize of Clarendon of 1166, King Henry II first introduced the elements of a jury trial into
the criminal justice system of his day by declaring that criminal cases are brought before the
king’s justices without undue delay. Magna Carta was followed by Petition of Rights in 1628;
Habeas Corpus Acts of 1640 and 1679; and then by Bill of Rights in 1689, which declared the
rights and liberties of the subjects.

The modem Indian Criminal law is a product of British Traditions and Experiences, which is
known as “Common Law” in its general parlance. With the passage of time many amendments
were made to suit the local requirements and the necessities. The researcher finds that the
criminal justice system is plagued with many problems. Neither the Constitution of India nor any
existing laws or Statutes specifically confer the right to speedy trial on the accused. Most of the
existing laws also do not provide any time frame in which a trial must be concluded and where

1
Magna Carta, Ch. 40(1215), reprinted in J. Holt, Magna Carta and Medieval Government 239- 57(1985); see also
B.L. Hansaria, Right to Life and Liberty under the Constitution 3(1993)
some time frame have been provided, the courts in India have held them to be 'directory' and not
‘mandatory’.

On the other hand, the right to speedy trial finds expression in the U.S. Constitution, State
Constitutions, State and Federal Statutory Laws, and the State and Federal case laws. The Sixth
Amendment to the U.S. Constitution, and the case law surrounding this amendment, provide the
best place to start analysis of the basic questions of primary concern: What interests does this
right protect? When and why are these interests triggered? And how should these interests be
protected, both to prevent their violation whenever possible and to remedy the effects of
violations when violations nonetheless occur?

The desire for quick, fair and affordable justice is universal. Protection of life and liberty
have been given a pre-eminent position in our Constitution by enacting Article 21 as a
fundamental right and imposing a duty on the State to protect life and personal liberty of every
citizens. The Indian Constitution does not contain any express provision regarding the right to
speedy trial. But the same is implied under Article 21 of the Constitution. Article 21 provides
that “no person shall be deprived of his life or personal liberty except according to procedure
established by law”. The most important terms in this provision are ‘procedure established by
law’. A procedure prescribed by law for depriving a person of his liberty cannot be termed as
‘reasonable, fair and just’ unless it ensures a speedy trial for determination of guilt of the
accused. No procedure which doesn’t ensure a reasonable quick trial be regarded as ‘reasonable,
fair and just’ and will be in contravention of Article 21 of the Constitution and hence is not valid
under law.2 Breach of this fundamental right has the potential of making the entire prosecution
liable to be quashed and closed and the accused in all such cases will have to be declared
innocent and set free. Speedy trial is, hence, the essence of criminal trial and there can be no
doubt that a delay in trial per se constitutes denial of justice.

Judiciary in independent India is the most important institution for it has been entrusted with
the job ranging from redressing the grievances of common man to resolving disputes between the
Union and the States, as also between States inter se arising mainly for want of legal
interpretation of the Constitution and various laws. Judiciary is envisaged as the third pillar of

2
Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, AIR 1979 SC 1369.
the democratic system in which the masses have the faith as the protector of their Fundamental
Rights. Of late, certain irregularities have crept in the judicial system and the arrears of cases in
the Courts have attracted much attention due to their sheer magnitude and put a question mark on
the efficacy of the judiciary because justice has to be associated with timely redressal to realize
its true meaning. This is probably the reason for the phrase “Justice Delayed Is Justice Denied”
to assume axiomatic proportions. The authorities who matter in this regard are very much
concerned about this delay and are consistently trying to get rid our system of this menace.
Almost all the Hon’ble Chief Justices of India have shown their concern toward delayed justice
and had tried to find out the causes for the same and also suggested means and methods, in their
own ways, to combat same was the concern shown by the Governments in the past. Further, the
legal experts are unanimous in their opinion that the present system of Criminal Jurisprudence is
destined to fail if the backlog of cases is not substantially reduced. Several Law Commissions
have recommended a complete overhaul of the criminal justice system. They have exhorted for a
radical change in the working of law enforcement agencies, especially the police and public
prosecutor to contain such delays in the recent past.

So, this research makes an attempt to determine as to how the capability of litigants is
affected in light of provisions of the Constitution of India and Indian judicial system. Right to
fair and speedy trial is the essence of criminal justice and there is no doubt that justice delayed is
justice denied. In India, nevertheless increasing numbers of accused were jumping bail while
free during extended pretrial release, there is no such law in India, however, the Hon’ble
Supreme Court held that right to speedy trial is neither a fact nor fiction but a “Constitutional
reality”. Law is also an instrument of justice and in many cases it is agreed that justice is the
ultimate goal towards which law should strive. For most of us justice boils down to counting the
utility of each individual equally, while others think that justice is a matter of respecting basic
human rights. Justice is the ideal, morally correct state of things and persons. Most people
believe that injustice must be resisted and punished, and many social and political movements
fight for justice worldwide. But the number and variety of theories of justice suggest that it is not
clear what justice and the reality of injustice demand of us, because it is not clear what justice is.
It was only in 1979 Hussainara Khatoon v. Home Ministry3 that the Supreme Court of India held

3
Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, AIR 1979 SC 1369
that a speedy trial was a fundamental constitutional right. We are in the difficult position of
thinking that justice is vital, but of not being certain how to distinguish justice from injustice in
our characters, institutions or actions, or in the world as a whole. Justice in itself is a moral value,
thus law without justice is a mockery, if not a contradiction.

2. Meaning and definition of Speedy Trial

A “speedy” trial means that the defendant is tried for the alleged crimes within a reasonable
time. A “speedy” trial basically means that the defendant is tried for the alleged crimes within a
reasonable time after being arrested. Although most States in United States of America have
laws that set forth the time in which a trial must take place after charges are filed, often the issue
of whether or not a trial is in fact “speedy” enough under the Sixth Amendment comes down to
the circumstances of the case itself, and the reasons for any delays. In the most extreme
situations, when a court determines that the delay between arrest and trial was unreasonable and
prejudicial to the defendant, the court dismisses the case altogether. In addition to this,
guaranteeing the right to an attorney, the Sixth Amendment to the U.S. Constitution guarantees a
criminal defendant a speedy trial by an “impartial jury.” This means that a criminal defendant
must be brought to trial for his or her alleged crimes within a reasonably short time after arrest.

In M.S.Sheriff v. State of Madras case4 two persons Govindan and Damodaran were illegally
detained by two police officers. This statement was accepted by one police officer and is denied
by another, with an affidavit in support. The present case discusses two important questions,
firstly, whether an appeal lies to the Supreme Court under Section 476 B of Criminal Procedure
Code (old)for perjury and secondly, there are two simultaneous proceedings against the
appellants, one is civil suit for damages for wrongful confinement and other is criminal
prosecutions for wrongful confinement. The Constitutional Bench held that appeal can be made
on the complaint of perjury in this Court and stayed the civil suit. The pronouncements of the
Apex Court have not yet improved the situation;5 the complaints of perjury are frequent. In case
of two simultaneous proceedings, the accused is left to embarrassment, agony and fear of two
adverse judgments but the administration of justice is in favour of one trial.

4
AIR 1954 SC 397
5
Sankar Sen, Pendency of Cases in the Trial Courts‖, 22 (2) Indian Journal of Criminology and Criminalities, 1-6 at
1 (2001)
In the year 1955, in Manchander v. State of Hyderabad case,6the accused was charged for
murder of Manmath under Section 302, IPC,1860 and was never questioned by the trial court
and Session courts under Section 342 of the Code of Criminal Procedure, 189814 about the
confession which was made by him after 8 days of arrest. The High Court altered the death
sentence to one of rigorous imprisonment for life and excluded the confession. The matter came
before Supreme Court and the Court observed that trial court and session court failed to
understand the importance of Section 342 and so, the High Court decision is set aside. The
Hon’ble Supreme Court acquitted the accused and observed that we are not prepared to keep
persons who are on trial for their lives under indefinite suspense because trial Judges omit to do
their duty. This is the one of the first pronouncement which highlighted that the delay has not
been condoned. The conduct of trial court and police officer on confession is given a serious
note. It has provided fair trial. On the other side, the case also shows the victim to suffer and pay
for the conduct of State. The case supported the maxim that hundred guilty may be acquitted but
one innocent should not be convicted.

In Maneka Gandhi v.Union of India case,7 the petitioner has filed a writ petition on the
ground that passport of the petitioner has been impounded in public interest and without
providing the reasons. This case has laid down a foundation stone by making right to fair trial as
part of Fundamental right. The Court looks into explanation for delay rather than on the face of it
quashing it. The seriousness or sensitivity of the case requires that reason for delay be seen and
in appropriate cases be allowed. The researcher opines that the concept of fair trial has been
understood correctly and has been broadened to protect the rights of accused. Fair trial is secured
when the opportunity is given to present evidence. The expert opinion on disputed handwriting
protects it further.

3. Meaning and definition of Speedy Trial

Giorgio Del Vecchio said, “Without Justice, life would not be possible and even if it were, it
would not be worth living”. The concept of speedy trial is as old as the Criminal Procedure
Code. However, during that time the term ‘speedy trial’ was not used. The Court on the basis of
facts and circumstances used to decide whether to quash the proceedings or not.

6
AIR 1955 SC 792
7
AIR 1978 SC 597
The earliest pronouncement on speedy trial is in S. VeerabadranChettiar v. E. V.
RamaswamiNaicker case,8 where the accused broke the idol of Lord Ganesha in public. The trial
and Hon’ble High Court refused to consider it as an offence under Section 295 of Indian Penal
Code,1860. The Hon’ble Supreme Court held the trial Court and High Court have given narrow
approach to Section 295, IPC, 1860. Due regard is to be paid to the feelings of people and which
was also the duty of the State for maintenance of law and order. The Hon’ble Supreme Court
refused to send back the proceedings to lower courts considering the delay as unjust and
improper since five years have already elapsed. The prosecution had to be vigilant and it was
foolish to take the case mildly.

In HussainaraKhatoon(I) v. Home Secretary, State of Bihar,9a full bench observed that an


unnecessarily prolonged detention in prison of under trials before being brought to trial is an
affront to all civilized norms of human liberty. Liberty of a person should be taken away only
when the guilt is proved and not before. In the present case, the pre-trial prisoners due to their
inability on financial grounds are languishing in jails for years. The Criminal Procedure Code
provides amplitude of power to the courts to release without sureties for appearance. Bhagwati,
J. and Koshal, J. (majority opinion) observed that it is a crying shame on the judicial system
which permits incarceration of men and women for such long periods of time without trial. It is
the need of hour to protect the basic freedom of these neglected and helpless human beings and
to enforce the human rights.

In HussainaraKhatoon(II) v. Home Secretary, State of Bihar,10 the court looked into task
done on the directions given above and observed that the right of speedy trial in Article 21
requires a reasonable, fair and just procedure and the State cannot avoid its constitutional
obligation to provide speedy trial to the accused by pleading financial or administrative inability.
The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for
this purpose has to be done by the State. It is also the constitutional obligation of this Court, as
the guardian of the fundamental rights of the people as a sentinel on the qui-vive, to enforce the
fundamental right of the accused to speedy trial by issuing the necessary directions to the State
which may include taking of positive action, such as augmenting and strengthening the

8
AIR 1958 SC 1032
9
AIR 1979 SC 1360
10
AIR 1979 SC 1369
investigative machinery, setting up new courts, building new court houses, appointment of
additional judges and other measures calculated to ensure speedy trial.

The delay deprives the accused of the freedom guaranteed under Article 21, Constitution of
India, 1950. The importance of expeditious disposal of cases at all stages is discussed under
Sections 167, 209 and 309 of Criminal Procedure Code, 1973. The Court has directed in many
cases that State shall take policy decisions to protect the accused that is indigent and cannot put
the judicial process in motion. The State shall complete investigation within two months and
commitment to Session Court in six months. The Hon’ble Supreme Court has frowned upon the
sentencing system which forces petty offenders to remain in jail even after serving their inability
to pay the fine imposed on them along with the period of imprisonment. Where a substantial
term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional
cases. It is a penalty which a person incurs on account of non-payment of fine. The Code of
Criminal Procedure needs amendment in this respect. The Constitution of India does not
expressly declare that right to speedy trial as a fundamental right. Speedy trial means reasonably
expeditious trial, which is an integral and essential part of the fundamental right to life and
liberty enshrined in Article 21. Article 21 confers a fundamental right on every person not to be
deprived of his life or liberty except in accordance with the procedure prescribed by law which
has to be reasonable, fair or just. A long delayed trial violates the right of speedy trial. The
direction was given to establish more courts and to submit the report on under trial prisoners.

In India the right of speedy trial is not an expressly guaranteed constitutional right it is
implicit in the right to fair trial which is a part of the right to life and liberty guaranteed by
Articles of the Constitution. Continued indifference to such right is bound to erode the structures
of our democratic society.11 Fair trial implies speedy trial while a speedy trial is an implied
ingredient of fair trial; the converse is not necessarily true. The question whether a conviction
should be quashed on the ground of delayed trial depends upon the facts and circumstances of
the case. If delay is caused by the conduct of the accused or there is nothing to show that the
accused had been prejudiced in the conduct of his defense there will be no justification to quash
the conviction on the ground of delayed trial only. “Speedy trial” and “fair trial” to a person

11
B.K Arora; Law of Speedy Trial in India; (2nd edition ) 2005; p. 71
accused of a crime are integral part of Article 21. There is, however, qualitative difference
between the right to speedy trial and the accused’s right of fair trial.

4. Historical Background of Right to Fair and Speedy Trial

The quest for justice has been an idea which mankind has been aspiring for generations down
the line. Law is order. Criminal Law seeks to provide order in the society; without which human
beings would be driven by individual aspirations, greed and false ego. All human-beings are born
with ‘passions’, ‘emotions’ and ‘enviousness’. Truly admitting that Hindu Law is based on
‘Shruties’, ‘Shastras’' and ‘Smrities’ and Muslim Law is based on Muslim Sharia-law. In India,
the king was not the law- maker but was supposed to administer justice to the people. It was
ordained to the king: “thou shall punish those who deserve punishment, and if you fail to do so,
the stronger would roast the weaker”. References to a speedy trial date back to the twelfth
century and the Assize of Claredon, followed by its presence in the Magna Carta of 1215, as
well as in the famous tomes of Sir Edward Coke.12 It is a truism that the Constitutional
philosophy propounded as right to speedy trial has grown in age by almost two and a half
decades, the goal sought to be achieved is yet a far off peak. India achieved independence from
Britain in 1947 and its Constitution came into force in 1950. The members of the Constituent
Assembly did not include explicit language enshrining a defendant's right to a speedy trial. It was
only after the lifting of Emergency the Court in a concerted effort began examining the
importance of not letting the incarcerated languish behind bars. The most aggressive protector of
individual liberties Justice P.N. Bhagwati established for the first time that a defendant had a
fundamental right to speedy trial under Article 21 of the Constitution of India.

The right to be tried within a reasonable time is guaranteed under Article 5(3) and 6(1) of the
European convention while Article 5(3) deals with the pre-trial stage, Article 6(1) relates to the
trial on a criminal charge.

Article 9(3) of the International Covenant on Civil and Political Rights, 1966 says that “any
person arrested or detained on a criminal charge shall be brought promptly before a judge or

12
Darren Allen, The Constitutional Floor Doctrine and the Right to Speedy Trial, 26 Campbell L. Rev. 101,
103(2004); Patrick Eilard, Learning from Katrina: Emphasizing the Right to a Speedy Trial to Protect Constitutional
Guarantees in Disasters, 44 Atn. Chm. L Rev. 1207, 1209-10(2007); Edward Coke, The Second Part of the Institutes
of the Laws of England 54-56(1809)
other official authorized by law and shall be entitled to trial within reasonable time or to release”.
The right to a fair trial is protected in Articles 14 and 16 of the ICCPR which has over one
hundred and seventy State signatories and includes a promise to afford defendants the right to a
speedy trial.

Article 8 of Universal Declaration of Human Rights, 1948 lays down that “everyone has the
right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law”. Article 10 of the Universal
Declaration of Human Rights is associated with the right to speedy trial and provides that
everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against
him.

Article 40(2) (b) of the Convention on the Rights of the Child, provides that every child
alleged as or accused of having infringed the penal law has at least the following guarantee:
Article 40(2)(b)(iii) - to have the matter determined without delay by a competent, independent
and impartial authority or judicial body.

In India, the philosophy of Right to Fair and Speedy Trial has grown in age. Nature is guided
by principles which become translated into ethical terms and so called laws in the form of
various Vedas, Smritis etc. as well as in the lives of men. Whatever laws (dharma under ancient
Indian context) were developed have a sole purpose of investing justice because; unjust law is no
law. Administration of justice when institutionalized in ancient India had sole purpose to regulate
the values prevailing and to uphold Dharma. Ancient India had an extremely advanced
administrative structure - wherein social ordering matured into legal ordering and where concept
of controlled power had become a well recognized norm. In ancient Indian civilization great
importance was placed to Dharma and there exists a democratic multi-dimensional system based
on “Rajdharma” match able to the present Indian Constitution. In true sense at that time
administration of justice was not the function of the king but the people themselves in their
various Kulas, Srenis, Gana, Guilds etc. though one of the predominant purposes of institution of
kingship was administration of justice.13 Administration of justice was to be regulated by these

13
On the basis of equality principles some of the provision of the ancient Indian legal text Katyayan 65-57
texts and treatises. Customs and Sadacharas were also applied. Most important thing about all
these legal sources to uphold ‘dharma’ was that they were ‘ethically sound’ and took care and
divided power in whole among society at equal basis.

The Indian foundation of law cannot be stressed in any single jurisprudence. It is influenced
by many races and nationalities in India. Like the Aryans, the Greeks, the Huns the Afghans, the
Moguls, the Dutch, the Portuguese, the French and the English. Out of these the English left the
permanent marks a culture and civilizations in India. Under Regulation Acts, 1774, 1801 and
1873 the Supreme Courts were established at Madras, Bombay and Fort Williams in West
Bengal respectively. These Supreme Courts were having the jurisdiction to issue writs. Further
by the High Courts Act, 1861 these Supreme Courts were converted into High Courts. Under that
Act, it provide that, "The High Courts to be established should have and exercise all
jurisdictions, every power and authority whatever in any matter vested in any of the Courts in the
same presidency abolished under the said Act at the time of abolition of such last mentioned
Court.

Initially the British sought to alter certain aspects of existing Muslim law that governed the
country. Attempts were made to regularize and professionalize police conduct and there were
reforms by Lord Warren Hastings and Lord Cornwallis to create more independence for courts
and outlets for appeal. But by the end of the 18th century delays continued to plague the Criminal
Courts. A back of a uniform set of criminal laws throughout the colony, less-than-competent
adjudicators, corruption, and insufficient defense counsel were some of the contributing factors.
In order to address these problems, the second half of the 19thcentury saw the passage of the
Indian Penal Code, 1862 and Code of Criminal Procedure, 1882. The British established a series
of Law Commissions to study how best to ensure that defendants would have their say in court.14
Throughout the 20thcentury, and during the first decade of the 21st century, there have been
various proposals offered to address the backlog in criminal trials. For instance, the first
comprehensive study of prison problems was made by the Jails Committee of 1919-1920, Law
Commission prescribed numerous suggestions regarding the "Congestion of under trial prisoners
in jail in 1979, the Mulla Committee to study Indian prisons situation in 1980-1983 etc. Further,

14
Surendra Kumar Pachauri, Prisoners and Human Rights 77-83(1999)
there have been several directives for improving the under-trial predicament by the National
Human Rights Commission, 1993.

The Constitution of India aspires for justice in all its forms: social, economic and political.
Although justice is meant to be “simple, speedy, cheap, effective and substantial”, yet it remains
vague to Indians and one of the major reasons are these delays in the dispensation of justice.
India has firm belief in the proverb “justice delayed is justice denied”. It is a basic principle of
justice that it should be delivered without delay. Accordingly various measures have been taken
up for the realization of Speedy Trial. The recurrent conflict of interest between ‘delayed trial’
and ‘speedy trial’ has bewildered the legal policy planners, legislators, researcher and the courts.
The Supreme Court of India on several occasions has expressed its concern in respect of delay
caused in courts. A number of steps have been formulated by state but the object of speedy trial
remains a myth and has not, so for, translated into reality. In its quest to arrest the delays and
conquer arrears, several committees and Commissions have suggested measures over a long
period of time, though they have not been acted upon expeditiously further deepening the
malaise in justice-delivery mechanism of India.

5. Review of Literature

The review of allied literature as well as previous research work is of paramount importance
in research endeavor. Certain writers have attempted to highlight the concept of speedy trial
under criminal justice process. The following are a few of the important works, Indian and
foreign which deals with matters of speedy trial and reforms in criminal justice system. Much to
the credit of the academic interest of the intellectuals in relation to the subject, the work of Hari
Om Maratha deserves specific mention. In his book, “Law of Speedy Trial: Justice Delayed is
Justice Denied”, the author has dealt with the brief history of justice Delayed is Justice Denied,
four articles of Supreme Court Judges, protection of life and liberty, Acts relevant to the subject
and changes made in the Code of Criminal Procedure. To a large extent the book is edited one
and informative only.15

However, an exhaustive article titled, “Delay in Process, Denial of Justice: The Jurisprudence
and Empirics of Speedy Trials in Comparative Perspective” is jointly written by Jayanth

15
Hari Om Maratha, Law of Speedy Trial “Justice Delayed is Justice Denied” (2008)
Krishnan and C. Raj Kumar. It deals with the brief overview of the academic literature on speedy
trials, the Indian speedy trial landscape and proposals and reform initiatives along with
preliminary observation. The authors have tried to examine the current state of the Indian
Criminal justice system and evaluated the positive court rulings that have translated into tangible
changes for the criminally accused. The authors find that there exist a major gap in India
between these encouraging judicial pronouncements and how the right plays out in reality.

The book titled’ “Handbook of Human Rights and Criminal Justice in India” the system
and procedure compiled by Mr. Ravi Nair, published under the auspices of the South Asia
Human Rights Documentation centre (SAHRDC) and (published by Oxford University Press,
2006) has the object of providing for teaching material as a text for students, a guide for journals
and even for the lay citizen. Its excellent documentation and citation of cases makes it a useful
reference for lawyers, judges and activists in the field. This book particularly discusses criminal
procedure and criminal justice in the context of human right. Especially this book is useful for
discussion of the essentials of a fair trial and safeguards against custodial torture.

The book titled, “Indian Judicial System: Need and Directions of Reforms”16 deals with
particular themes of judicial reforms including speedy justice and Indian criminal Justice system,
the topic is of great contemporary interest and relevance to all academics, policy makers and
citizens due to its importance in judicial administration at various levels.

The book titled, “Law of Speedy Trial: Justice Delayed is Justice Denied” by Hari Om
Maratha, published by Lexis Nexis Butterworths Wadhwa, Nagpur (2008). This book contains
the gist about the law of speedy trial it is a compiled book having relevant topics regarding
judicial delay in dispensation of justice. This book is relevant not only for legal fraternity but for
the members of Judiciary at all levels, prosecutors, police, and to the entire community.

The book titled, “Law of Speedy Trial in India” by B.L. Arora, published by Universal
Law Publishing Co. Pvt. Ltd. New Delhi, deals extensively with the law of speedy trial in India.
It covers every aspect started with the evolution of state, basic notion of law, crime and justice
and covered provisions of criminal procedure code with reference to the speedy trial, and case
law on speedy trial This book also deals with particular themes of criminal justice, such as, the

16
Edited by S.P. Verma, published by Kanishka publishers, New Delhi, (2004)
historical and social framework in which the crime control agencies have evolved the use of
certain methods within criminal justice system to guide the decision making bodies.

The book titled, “Judicial Reforms in India: Issues and Aspects”, by Arnab Kumar Hazra
and BibekDebroy, published by Academic Foundation in Association with Rajiv Gandhi Institute
for Contemporary Studies, New Delhi (2007). It covers valuable information on judicial reforms
by different authors, and deals with particular themes as issues and aspects of judicial reforms in
India. This book also examines through data's and examines whether the system of criminal
justice obtaining in India is adequate enough to cope with the challenges of the time.

The book “In Defence of Liberty: The Story of America is Bill of Rights”17 deals with
some aspect of the Bill of Rights, and particularly deals in detain about the Amendments made in
American Constitution, in which the Sixth and Seventh Amendments deals with the “Right to a
Speedy and Fair Trial”. This book is written in a very easy language and is useful for academic
as well as for the law professionals.

The Primary Source for this study has been the decisions rendered by the Supreme Court of India
and the High Courts, reported in different Law Journals like Supreme Court Cases, All India
Reporter etc. These decisions of Courts came very handy because they gave me the first hand
knowledge of the delay justice-delivery system in India and concern of the Courts regarding such
delays.

6. Problem Profile

In India, neither the Constitution nor any existing laws or statutes specifically confer the right
to speedy trial on the accused. Most of the existing laws also do not provide any timeframe in
which a trial must be concluded; in cases where some timeframes have been provided, the courts
have held them to be “directory” and not “mandatory”. Procedural law, i.e. the Code of Criminal
Procedure (Cr. PC), 1973, provides a statutory time limit to complete an investigation. In a
democratic society like India, for protecting and enhancing the rights of the people, the judiciary
besides the Legislative and the executive body plays an important role. For the enforcement of
rights of citizens and remedies thereto in case of violation thereof Courts have been established
at all levels in the country. These courts, by interpreting the laws, enhance justice to the
17
Russell Freedman, published by A Holiday House Book, New York, U.S.A. (2003)
individual and the society at large. With the rapid growth in the population and the development
in industrial and technological fields, the work load of the judiciary has been increased
tremendously. With the increase in workload, the efficiency and the time consumed in disposing
of cases are alarming and astonished and workings of the Courts are hampered badly.

With the increase in the rate of pending cases and declination of pronouncement of
judgments, our society now truly considers that “justice delayed is Justice denied”. Due to the
delay in rendering justice, people are losing faith in the judicial system. The mounting arrears of
cases in the trial and appellate courts coupled with increased recourse to court cases on account
of awareness of rights on the part of the citizens, various legislative enactments and
administrative measures touching the lives of citizens at all levels, have assumed serious
proportions.

Life and liberty of a citizen guaranteed under Article 21 includes life with dignity and liberty
with dignity. Liberty must mean freedom from humiliation and indignities at the hands of the
authorities to whom the custody of a person may pass temporarily or otherwise under the law of
the land. A dignified life is not possible unless an accused is assured speedy disposal of his case.
Therefore, speedy trial has been implied as a fundamental right under Article 21 of the
Constitution of India.

Individual liberty is a cherished right and perhaps one of the most valuable fundamental right
guaranteed by our Constitution. The interest of society can be served only if the Constitutional
provisions are implemented in its strict sense and individual liberty of every person is
harmonized with the social interest of the society. The public outrage over the failure of the
criminal justice system in some recent high profile cases shook us all up into realization that
something needs to be urgently done to revamp the process, though steering clear of knee jerk
reactions, remembering that law is a serious business.18

It is in the interest of all concerned that the guilt or innocence of the accused is determined as
quickly as possible. On pre-trial confinement, at times, an accused remains in jail for much
longer period than even the maximum sentence which can be awarded to him on conviction for

18
Speech of Former CJ of India, Hon'ble Mr.Justice Y.K. Sabharwal at the Inauguration of the Joint Conference of
Chief Justices and Chief Ministers held on 11th March 2006
the offence of which he is accused. Our prisons are overcrowded resulting in heavy loss of state
exchequers, which could have been saved by speedy disposal of cases. It is, therefore, the
bounden duty of the trial court to ascertain that the cases are disposed of speedily at least of the
under-trials who are languishing in jails for years. The offences punishable under laws other than
Indian Penal Code are not compoundable.19 Yet, the judiciary is unable to enforce this, partly for
want of adequate number of courts and Judges and partly due to their indifferent attitude towards
the pending cases.

Criminal law remains ineffective without quick trial and prompt punishment. For a variety of
reasons, witnesses tend to retract from their previous statements. Those who won over by threats
or inducement, turn hostile. Investigating officers and prosecutors loose heart; Judges feel
helpless. People lose confidence in the judiciary as either criminal go scot-free or innocents’
continue to be harassed. Thus, delay in disposing cases amounts to punishing an accused before
he is tried and guilt is proved. This cycle of vices is harmful for the development and peace of
any civilized society.

In 1979, the Supreme Court of India referred to the United States Constitution's Sixth
Amendment, held that defendants had a fundamental right to a speedy trial. Researcher has made
earnest efforts to examine the evolution of the Indian jurisprudence on this matter, which has
been quite favorable for defendants. Further the researcher stretched this line of inquiry to
evaluate whether the positive court rulings have translated into tangible changes for the accused.
The situation in India on right to speedy trial is thought to be much worse.

All these above issues led the researcher to take up this particular topic wherein an effort has
been made to adumbrate the pros and cons of justice delivery system in India with an eye on
‘right to speedy trial’ which is implied under Article 21 of the Constitution of India.

7. Hypothesis

In India large number of pendency of cases in Courts is a major concern for both the parties
as well as for the State, in spite of right of speedy trial declared as a fundamental right in catena
of judgments under Article 21 of Constitution of India. Speedy and fair trial is the utmost and

19
Arora B.L., “Law of speedy Trial in India”, P. 141
fundamental requirement for judicial accountability. Researcher observed and perceived the
adjudication process under the procedural laws under different dimensions.

Researcher feels that one of the lacunae in adjudicating cases is slower disposal rate of cases.
The frivolous, multiplicity of suits and vexatious litigations are also added to the arrears of cases,
which further add to this problem. Generally, the perception of public is that the provisions of
revision and adjournments in Criminal Procedure Code,1973 and in Civil Procedure Code,1908
somewhere is the main reason for delay in dispensation of justice.

In the light of applicability of law it is seen that the procedural methodology adopted by
litigants/ lawyers to get adjudication from courts is applied not to get or impart justice but to
create unfairness and delay.

The rationale behind the study is justified on the basis of assumptions and completed with
reasons, justification, conclusion and suggestions. On the above mentioned assumptions and
various facets of criminal justice system particularly its recent trends, researcher made some
objectives to complete the present work on “Fair and Speedy Trial: A Critical Review on
Judicial System”. The hypotheses formulated are that:

1. Criminal judicial system is suffering from several pernicious defects such as unfair and
delayed disposal of cases and huge pendency.

2. Right to Fair and Seedy trial is the essence of criminal judicial system and there can be no
doubt the unfair and delay in trial by itself constitutes denial of justice.

3. The worry, anxiety, expense and disturbance to prisoner’s vocation and peace resulting from
an unduly prolonged investigation, inquiry and trial should be minimal.

4. A new jurisprudence is evolving the world over particularly with the help of judicial decisions,
whereby prisoners are treated as human beings and speedy trial as their human right.

5. The State is under a Constitutional mandate to ensure fair and speedy trial and whatever is
necessary for this purpose has to be done by the state.

6. Most of the provisions of the procedural laws are vague and highly technical making it
difficult to enforce them towards the end of fair and speedy justice.
7. The State cannot avoid its Constitutional obligation to provide fair and speedy trial to the
accused persons by pleading financial and administrative inability.

8. Effective case management system needs to be put in place for growing number of new cases
and the courts should reach to the people through local venue hearing.

9. There appears an urgent need to bring punishment for absconding witnesses and strict
enforcement of deadline for duration of trial and length of argument.

10. Concrete steps to implement the recommendations of various committees on reforms in


criminal justice system needs to be taken, if we are to achieve the precious right to fair and
speedy trial.

8. Research Methodology

The methodology of the study shall primarily be doctrinal, discussing the philosophy and
analyzing the books, journals and other literature on the subject. Researcher has analyzed the
Judgments of reported cases for speedy trial, as decided by Hon’ble High Courts and Supreme
Court from time to time.

The study encompassed doctrinal method of research by using primary and secondary
sources. The bases of the study are pronouncements of Hon’ble Supreme Court and High Courts
Report of Law Commission, Law books, Articles in law journals and Newspapers.

Considering the nature of the subject, the researcher commenced his study by utilizing the
rich treasures of books and treatises available in the library and pick up from them the material
relevant for tracing the concept of speedy and fair trial thereafter proceeded ahead to extensively
to examine other materials like the various legislations, commentaries by the jurists, the statutory
interpretations by the Supreme Court and the High Courts of India. The researcher considers the
Doctrinal or the Traditional method of research as the primary method for study.

In the preparation of this research study, material has been collected from authentic reports
found in the Libraries of repute based in Punjab University, Chandigarh, Central Library of
University of Delhi, (North Campus), Indian Law Institute, New Delhi. Every efforts has
been made to collect material from appropriate and authoritative sources of information, the
decisions of the courts and the reports found in law library, seminar of the various
Department/Faculty of Law at various institutes.

A single source of information in the form of statutes, critical analysis of judicial decisions
etc. not being sufficient for the researcher, so that the necessary data collected from secondary
sources like the newspapers and periodicals and various reports published in souvenir of All
India Seminar on Judicial Reforms time to time.

Researcher also intends to conduct research by applying the Anthropological Study, Critical
Study, and Comparative Study by collecting the data as secondary as well as primary source of
information. On the basis of work done in the light of recommendations of law commission and
other recommendatory bodies, the researcher gave suggestions after concluding her remarks
about the concept and law of fair and speedy trial in the light of judicial system in India.

9. Objective of the Study

It is obvious that the states has kept the Constitutional obligation by devising a procedure
which ensures a fair and speedy trial for the accused; the superior court also not lagged behind
their Constitutional obligation in enforcing the right of the accused to fair and speedy trial by
issuing the necessary directions to the State, but still delay persists. This state of affairs
necessitated the present work on “Fair and Speedy Trial: A Critical Review on Judicial
System”.This research work has been carried out with the following, among other, objectives:

1. To expound the concept of fair and speedy trial in criminal judicial system and underline
the basic feature of the systems obtaining in India;
2. To examine the legal framework of components of criminal judicial system keeping in
view the normative and social perspective of the system of criminal justice;
3. To critically examine the fundamental principles embodied in the Constitution, regarding
fair and speedy trial as fundamental right, and institutions involved in the administration
of criminal justice, namely, the police, the courts, the prosecution and the prisons;
4. To critically enquire how principles of procedural law are adhered to in conducting
criminal trial and in managing the operational aspects of the system;
5. To study the legal and Constitutional position of the new institutions established by the
State to attend as alternative dispute resolution in furtherance of fair and speedy justice;
6. To examine the position of various committees, commissions reports and its
recommendations on fair and speedy trial;
7. To analyze the safeguard guaranteed to under trial prisoners in relation to various phases
of the criminal process and how the system takes care of the victims;
8. To point out the error and defects in procedural law which hamper the criminal judicial
system in regard to fair and speedy disposal of cases;
9. To suggest some possible measures to fair and speedy dispensation of criminal cases;
10. To assess critically the present judicial system for fair and speedy justice;
11. To assess the judicial practice of Hon’ble High Courts and Supreme Court with respect to
their discretionary powers for speedy trial.
10. Tentative Chapter Scheme

The First Chapter is entitled as “Introduction to Right to Fair and Speedy Trial in India”
which contains the brief background of the selected topic, conceptual aspect of the right to fair
and speedy trial, statistical figures of pendency of cases in the Supreme Court, High Courts, and
Subordinate Courts, Review of Literature, Objectives of the Study, Problem Profile, Hypothesis,
Research Methodology followed by the Scheme of the study.

The Second Chapter is entitled as “Historical Background of Right to Speedy Trial at


National and International Level”. In this Chapter an endeavor is made to find the historical
background of right to fair and speedy trial. This Chapter is very important from the point of
view that it analyses the Right to Fair and Speedy Trial under Various International Instruments.

The Third Chapter is entitled as “Right to Fair and Speedy Trial as a Part of Fundamental
Human Rights in India”. In this Chapter, an endeavor is made to throw light on the
constitutionality of the right to fair and speedy trial. This Chapter is very important in the sense
that this right is not directly mentioned in the Constitution of India rather it is implied under
Article 21. Further there is a detailed analysis of the provisions of the Criminal Procedure Code
and Civil Procedure Code dealing with Fair and Speedy Trial. An endeavor has also been made
to critically analyze the judicial approach to speedy trial which is very much germane because it
is the judiciary which has introduced the “Right to Fair and Speedy Trial” under the ambit of
Article 21 of the Constitution of India.
The Fourth Chapter is entitled as “Fair and Speedy Trial in Statutory Provisions in India”
deals with the statutory provisions for fair and speedy trial. It discusses the several statutory
provisions which are designed to speed up the trial of criminal cases; in the last part of this
chapter it also discusses the utility of free legal aid to achieve fair and speedy justice.

The Fifth Chapter is entitled as “Ways and Means of Speeding up of Justice Delivery
System: A Critical Analysis”. In this Chapter, an attempt is made to adumbrate the alternative
ways to expedite the rate of disposal of cases. The most important alternative ways discussed are:
extensive recourse to alternative dispute resolution techniques like arbitration, conciliation,
mediation, negotiation, counseling, LokAdalat, introducing the concept of Plea Bargaining,
setting up of Fast Track Courts etc.

The Sixth Chapter is devoted to “Conclusion and suggestions”. In this Chapter various
suggestions are provided for expediting justice delivery system in India which is in tune with the
cherished principle of fundamental right to life and personal liberty. Such suggestions inter alia
include increasing the number of regular courts, improvement of judicial infrastructure,
extensive use of emerging technology, statutory recognition of time bound disposal of cases and
making such offences compoundable which will not cause serious alarm to parties and the
societies at large.

11. Bibliography

BOOKS

1) Arora, B.L., “Law of Speedy Trial in India”, 1st Edition, 2005, Universal Law Publishing Co.
Pvt. Ltd.

2) Baxi, Upendra, “Right to Speedy Trial: Geese, Gender and Judicial Sauce”, 2nded.l986.

3) Basu, Durga Das,“Introduction to the Constitution of India”, 20thEdition, Reprint 2009, Lexis
NexisButterworths,Wadhwa Publishers, Nagpur.

4) Baxi, Upendra,“The Crisis of the Indian Legal System”, 1st Edition, 1980,Vikash Publication,
New Delhi.

5) Bhalla, Sandeep, “Bail or Jail”, Kamal Publications, 1998 Edition.


6) Desai, Ashok A.,“Justicing the People” 2nd Edition, 2001, Modem Law House.

7) Kaul, Anjali, “Administration of Law and Justice in Ancient India” , Sarup and Sons
Pub.(l993).

8) Maratha, Hari Om,“Law of Speedy Trial-Justice Delayed Is Justice Denied”, 2008.

9) Sharma, Gokulesh,“Human Rights and Social Justice”, 2nd Edition, 2003, Deep and Deep
Publication Pvt. Ltd.

10) Singh, Jagmohan,“Right To Speedy Justice for Undertrial Prisoners”, Deep & Deep
Publications, 1997 Edition.

ARTICLES

1) Agarwal, Nomita, “The Need for Alternative Dispute Resolution in India”, Journal of Indian
Law Institute, Vol. 3, Dec. 2004.

2) Agarwal K.Anurag, “Strengthening the LokAdalat Movement in India”, AIR (Journal


Section), March, 2006.

3) Bishwal, Acharya, “Speedy Justice by the Use of Technology”, Souvenir on All India Seminar
on Judicial Reforms held on 23rd -24th February, 2008.

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

5) Deshpande, R.R. “Reform in the Criminal Justice System- Pre-trial, During the trial
Publicity”, Souvenir on All India Seminar on Judicial Reforms held on 23th -24thFebruary, 2008.

6) Eqbal, M.Y, “Concept of Plea Bargaining”, Published in NYAYA DEEP, Journal of National
Legal Service Authority.

7) Marc, I. Steinberg, “Right to Speedy Trial: The Constitutional Right and Its Applicability to
the Speedy Trial Act of 1974” (Sep 1975), The Journal of Criminal Law and Criminology, No. 3,
229-239.

JOURNALS
1.All India Reporter.

2. Criminal Law Journal.

3. Delhi Judicial Academy Law Journal.

4. Delhi Law Review.

5. Dispute Resolution Journal.

6. Journal of Indian Law Institute, New Delhi.

7. Journal of NALSAR.

8. Nyaya Deep, Journal of National Legal Services Authority.

STA TUES/ACTS/R ULES

1.The Code of Civil Procedure.

2. The Code of Criminal Procedure.

3. The Indian Evidence Act.

4. The Indian Penal Code.

5. The Arbitration and Conciliation Act, 1996

6. The Legal Services Authorities Act, 1987.

7. Speedy Trial Act, 1974.

MA GAZINES/NEWS PAPERS

1. India Today.

2. Lawyers Update.

3. The Frontline.

4. The Rational.
5. The Tribune.

6. The Times of India.

7. The Sunday Tribune.

8. The Hindu.

WEBSITES

1. www.amnesty.org.in

2. www.blonnet. com

3. www.criminalfindlaw.com

4. www.fi-ontline.net.in

5. www.google.com

6. www.legalservicesindia.com

7. www.manupatra.com

8. http://www.edujournal.com

9. http://www.thehindu.com

10. http://www.indlaw.com

11. http://www.jstor.org