Law moves at snail's pace in the country

Can anyone  forget the chilling exchange before the Supreme Court between Justice H.R. Khanna - whose stellar dissent in the ADM Jabalpur verdict on April 28,1976 was editorialised in the New York Times, during the dark days of the internal Emergency - and the then Attorney General  Niren De.  On the brutal suspension of fundamental rights, Khanna asked De “Whether there was not such a thing as Rule of Law in addition to the constitutional provisions vide Art.21- right to life & liberty”.  De responded, “The rule of law existed only within the four corners of the Constitution; natural rights did not exist outside it”. And to Khanna’s retort “Art.21 protected both right to life and liberty and surely if a policeman chose to shoot a citizen - the citizen would not be remedyless,” De’s chilling response, recorded for posterity,  as  the darkest chapter in the biography of the  Supreme Court  itself, was  “Consistent with my position, My Lord, not so long as the Emergency lasts. It shocks my conscience, it may shock yours, but there is no remedy”. And on Nov 19, 2010 in Ramdeo Chauhan case, the Supreme Court  ‘apologised’ - “There is no doubt that the majority judgment of this court in the ADM Jabalpur case violated the fundamental rights of a large number of people in this country.” It quoted MN Venkatachaliah, former CJI, as saying, “the verdict be confined to the dustbin of history”.

Emergency may have long gone but the reality is that human rights of undertrials in India appears to be still stuck in Emergency mode. Lack of ‘speedy trial’ as a constitutional precept and practice is a serious malady afflicting the body politic undermining India as a democracy with human values.

According to the Report of National Crime Records Bureau at the end of 2015 (still counting) there were a total of 4,19,623 prisoners across India.  Numerically speaking, Uttar Pradesh had the highest number of prisoners (88,747) at the end of 2015, followed by Madhya Pradesh (38,458) and Maharashtra (29,657).  Of the 2,82,086 under-trials, 35.2% (99,398) had been detained up to three months by the end of 2015.  And 1.27% (3,599) of them had been detained for longer than five years.  In Hussain’s case (SC) dt. March, 2017 these cold statistics were flagged to inject a new sense of urgency towards grant of ‘speedy trial/bail.  
While living conditions in prisons are ‘abysmal’ the occupancy rate is 114.2% on an average.  (The 78thReport of Feb 2, 1979 of the Law Commission, handed by HR Khanna, is a poignant commentary on overcrowded prisons and ‘condemned’ under-trials).  “Times, they have remained immanent.  Art. 21 and human rights are themselves languishing”.

In the ancient democracy of the US, the Sixth Amendment to the Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy trial”. The right of the accused to a speedy trial has constitutional and statutory underpinnings in addition to the Speedy Trial Act (Indian American constitutional wizard Akhil Amar’s study is a must read for our courts on how to strike a delicate balance between ‘process delay’ and ‘denial of justice). Federal statutes of limitations provide a time frame within which charges must be filed. Federal Criminal Rules of Procedure grants ‘trial courts discretion to dismiss cases that are not brought to trial promptly’. Based on several pronouncements of the SCOTUS (Supreme Court of USA) the time line for trial after indictment is to be strictly adhered to. Even before the case goes to trial, there is a ‘plea bargaining’ which enables a speedy closure. If trial becomes unavoidable - time/dates/hours are fixed for evidence on either side and even oral submissions for both sides are required to be filed in their filings prior in point of time. Unlike in India, the scheduling is a month in advance and cast in stone, not water. No passovers for an hour to a year as here. In India, we have the spectacle of unlimited adjournments at the ‘whim and fancy’ of practitioners onthe Bench and off it, and never ending trial and arguments that last a  lifetime  of trying times to those on trial.

As for the United Kingdom with an unwritten Constitution - all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared or reputations restored. House of Lords decision in Attorney General’s Reference No 215 of 2001 where Lord Bingham for the Court, has explained the rationale of the reasonable time requirement as being so that an innocent person could clear his name  and so that a guilty one was not made to wait and suffer too long for justice, with negative effects for his health and family life. The cost of postponement would be severe on both sides. Criminal Courts stick to the time tables as an ‘audit’ is to be submitted to Lord Chancellor.

In India, ‘speedy trial’ is a part of reasonable, fair and just procedure guaranteed under  Art.21.This constitutional right cannot be denied even on the plea of non-availability of financial resources.The issue is not one of lack of authority to uphold these principles - but whether the lofty principles are practised. Alas, the truth is that undertrials continue to suffer despite the spate of verdicts for there is a conspiracy of silence or paucity of judges, huge pendency, inefficient administration, politicisation of prosecutors, not to forget boycott of courts at the drop of a hat and other systemic faults infringing  the fundamental right to a speedy trial. Though on and from  July 5, 2006 - Cr.P.C. Chapter XXI A, allows plea bargaining to be used in  select criminal cases -   Murlidhar Meghraj Loya (SC), calls ‘plea bargaining’ as  ‘plea negotiation’, ‘trading out‘ and ‘compromise in criminal cases’ and the trial magistrate, drowned by a docket burden, nods his assent to the sub rosa anteroom settlement. As always, Nani Palkhiwala shall have the last word, “The law may or may not be an ass but in India it is a snail — it moves at a pace which would be regarded as unduly slow in a community of snails”. Time for all stake holders to cease to be animals, if we are to retain/regain our human values and rights.

(The writer is a practicing advocate in the Madras High Court)