Justice fast-tracked: Time to end the ordeal of undertrials

As the sanctum sanctorum of India’s democracy, Parliament, moved house from the historic structure to a new facility, it underlined the theme of change that has marked the BJP’s days in power at the Centre. The old edifice has its history, sentiment and story.

As minister Dr Jitendra Singh put it: “Even the bricks and walls of that building had stories and anecdotes to tell, right from British times down to the tenures of India’s 15 prime ministers after independence … the Old Parliament emerged as the hub of the highest seat of democracy … (It) will remain immortal for all times to come.”

The place has been aptly named ‘Samvidhan Bhavan’, or Constitution House, because, after all, the Constitution of independent India was tabled, debated and adopted here. While we change, become more modern and expand spaces to use and consume, literally in the case of the shifting of the building and, metaphorically, in terms of our approach and ideas, it is appropriate to revisit the solemn promises.

The preamble of the Constitution inter-alia enshrines, “We the people of India, having solemnly resolved … to secure to all its citizens justice, social, economic and political …”

The 3rd Indian Justice Report released on April 4, 2023 recorded that a total of 49 million cases remained pending across high courts and district courts as of December 2020; as many as 1,90,000 cases of these were pending for 30 years and 5.6 million for over 10 years. Further, 77% of the incarcerated population comprises undertrials (those being held in custody awaiting trial for a crime).

The average period 88,725 undertrials spent in custody in 2021 was 1-3 years; over 24,033 undertrials spent five years and 11,049 above five years. A total of 71,411 (56,365 civil and 15,076 criminal) cases were pending in the Supreme Court as of August 2, 2022.

This is an alarming picture of justice not being delivered. The simplest way to put it is to say: ‘Justice delayed is justice denied’. Section 40 of the Magna Carta reads: “To no one will we deny or delay the right to justice.” The Universal Declaration of Human Rights adopted in 1948 also guarantees the right to justice. Inordinate delay inflicts irreversible long-term consequences. Slowly, stealthily and steadily, it kills faith in the justice system.

Successive governments have taken steps like setting up fast-track courts, special tribunals, consumer courts, Lok Adalat etc. The causes of delay have also been identified, like the point that the government is the biggest litigant, inadequate budgets for the system, a low ratio of judges to the population, competence and commitment deficiency, adjournments as the norm, the long judicial process, work cultures et al.

Suggestions like a special infrastructure corporation, establishment of a separate authority charged with supervising the administration of justice and carrying out administrative reforms, separation of administrative and judicial work, cooperation and coordination with the government, etc. have been made.

However, the common litigant continues to find justice illusory and unaffordable. Meet anyone waiting for over five years for a trial, and the pain of irreversible consequences on life and liberty will be writ large on the face. This is not to point out that a large number of people who suffer thus are poor and disadvantaged in multiple ways.

But for some in the justice system, delays make economic sense. For instance, delays would benefit some of the advocates involved. Thus, there is an urgent need for a radical rethink in this area.

The government today is said to stand for expeditious execution of priorities, and speaks of pursuing goals in “mission mode”; an example of this is the plan for making water available on tap to all, or the ‘nal se jal’ programme of the government.

Similarly, the delivery of justice should also be a mission. The journey of such a mission should begin with the identification of who, how and what delays the disposal of cases. Unconventional methods to deal with delays, especially inordinate ones, should be considered. If warranted, laws, codes, rules, regulations, procedures should be considered for amendment. Afterall, this is possible.

As in the case of the ‘Women’s Reservation Bill’, which was passed by both Houses of Parliament without delay.

It should also be possible to segregate cases into categories to expedite disposal. A time limit must be fixed and enforced for the disposal of cases based on such a categorisation. Accountability for delay in the various processes should be delineated, fixed and action taken expeditiously. The judiciary should also be subjected to accountability.

In every district, at least a dozen monitors could be appointed. They need to be assisted by limited administrative personnel for computerisation, categorisation and close monitoring of hearings, evidence gathering/production, arguments and final orders’ writing and delivery. Progress should be tracked at the highest level and tabled in Parliament every six months. 

Cases that are more than a year old should be dealt with by separate courts and those that are one year or less should be dealt with separately. For these cases, the time limit should be minimal, depending upon the kind of case. The government should look at alternative mechanisms for the settlement of its disputes rather than clogging the judicial system.

Massive recruitment, training, infrastructure building etc. may be required in the coming years; only then can the exercise of disposal of cases be pursued. Volunteering should be invited from senior advocates in particular, in the interest of delivering justice on time and at affordable costs, as well as their understanding and the appreciation of the ground realities and pain of litigants.

There is bound to be opposition. But the entire process will require an open mind, confidence building, an all-party consensus, a willingness to accept suggestions and a change in direction in the interests of fairness and transparency.

The time for half-hearted attempts and/or conventional methods has gone by when it comes to delivering justice. Action needs to be taken that is cautious yet bold, speedy yet fair in the interest of the large number of people suffering, but without in any way short circuiting the legal process. This will be a Herculean task like no other, but it is something that has to be done.

(The writer is a former chairman of SEBI and LIC. ) (Syndicate: The Billion Press)