Developing New Mechanisms For Securing Speedy Justice - A Study
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DEVELOPING NEW MECHANISMS FOR SECURING
SPEEDY JUSTICE: A STUDY
Bhavya Som Garg, Faculty of Law, Banaras Hindu University
ABSTRACT
Access to speedy justice is often considered to be an inalienable right of an individual, sacrosanct to their existence, with the courts forming the principal provider and enforcer of the right. Even the Hon’ble Supreme Court has expounded upon the concept and declared to be a fundamental right implicit under Article 21 of the Constitution of India. But of late, the implementation of the dictum has gravely suffered at the hands of institutions responsible to provide it in the first place, with the insurmountable pendency of cases and lack of competent people to deal with them adding to the peril. The past few years have also witnessed the dearth of infrastructural facilities available to the Indian courts, when compared to their international counterparts, which has acted as a major impediment in the direction of timely disposal of litigations and securing speedy justice.
This article aims to study the reasons of the jeopardizing of the right and the measures taken so far to contain it, with the objective of suggesting such measures which may be taken to manage the menace and ensure the unbridled enforcement of the right keeping the mind the available infrastructural facilities and other available, but limited resources, particularly financial resources. Keywords: speedy justice, adversarial system, pendency of cases, hybrid model
INTRODUCTION
“Without justice, life would not be conceivable and regardless of whether it were, it would not be worth living”- Giorgio Del Vecchio Speedy justice, in simple terms, refer to the speedy and time-bound disposal of a case affecting the rights of an individual, thereby ensuring that the victim secures a timely and meaningful justice, either in the form of a severe punishment to the accused, or in the form of a compensation, monetary or otherwise. The value of securing an expedited and timely justice to a victim lies in the effect such a disposal or non-disposal has on the psychology of the individual being subjected to the incessant scrutiny of the judicial infrastructure, coupled with the inherent delays associated with the litigation in the Indian courts. This value was recognized by the Hon’ble Supreme Court, through its landmark judgements in the cases of Hussainara Khatoon v.
Home Secretary, State of Bihar1, and A. R. Antulay v. R. S. Nayak2. Through these judgements, the Court not only gave an explicit recognition to the indispensable right if speedier justice delivery. There is a very common notion that ‘justice delayed is justice denied,’ which holds true, especially in the Indian context, where 50-year-old cases have been gathering dust in the dingy record rooms with no hope of their disposal and undertrial prisoners have been languishing in the jails awaiting the declaration of their innocence or culpability. Our justice delivery mechanism has become lethargic that for many litigants, the entire process of trial and adjudication becomes a traumatic experience, at the end of which, only one side receives some form of consolation, even if it becomes redundant owing to the delay in its declaration.
This ‘slow-motion syndrome’ is not just violative of the judicial dictum as it deprives the people of their right to a time-bound justice, but also stands against the fundamentals of our constitutional system in the sense that it erodes the faith possessed by the public in the justice delivery system and makes them question the commitment of the machinery of providing speedier justice.
EVOLUTION OF THE CONCEPT AND ITS DEVELOPMENT IN THE INDIAN
CONSTITUTION
The idea of delivering a speedy and time-bound justice to an aggrieved person has been the
1(1980) 1 SCC 81
2(1992) 1 SCC 225
guiding principle behind every judicial infrastructure established since the ancient times. Every system of justice delivery, be it the ancient Greek system, or the Romans, or the English have considered ensuring speedy justice as their moral and ethical duty. However, there was no written code or statute or any law providing for speedy justice. One of the first instance of a codified dictum on the point can be traced back to the Magna Carta Libertatum, commonly known as Magna Carta, which was a Charter of Rights of persons issued by the King John of England in 1215. Clause 40 of the Charter lays down that “To no one will we sell, to no one will we deny or delay right or justice. ”3Though the Magna Carta was not a designated legal document, it has been the basis of the entire English common law system and therefore, has the effect of a legal principle.
Taking inspiration from the Magna Carta, the American Constitution also guaranteed the right to speedy justice to all its citizens. The VIth Amendment to the Constitution of the United States of America, added by the Bill of Rights of 1791, contained the following guarantee: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
”4 In addition to the abovementioned documents, the right to speedy justice can also be found in the provisions of International Covenant on Civil and Political Rights (ICCPR), 1976, albeit indirectly. As per Article 9(3) of the Covenant: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, 3The Contents of Magna Carta, UK Parliament, available at: https://www. parliament.
uk/about/livingheritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses/ (Last visited Feb 6, 2023). 4VIth Amendment Constitution of the United States, Constitution Annotated, available at: https://constitution. congress. gov/constitution/amendment- 6/#:~:text=In%20all%20criminal%20prosecutions%2C%20the,of%20the%20accusation%3B%20to%20be(Last visited Feb. 6, 2023).
should occasion arise, for execution of the judgement. ”5 Further, Article 14(3), which enlists the guarantees available to a person facing a criminal charge, provides that the trial of such a person should be undertaken without undue or unjustified delay. Apart from the above-mentioned international instruments, the concept and provisions related to speedy justice have been provided under the following instruments: Right to Speedy Trial under Universal Declaration of Human Rights, 1948 Article 8 of Universal Declaration of Human Rights, 1948 provides 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.
”6 Article 10 of the Universal Declaration of Human Rights contains provisions with respect to 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. ”7 In the Indian context, however, the development of the concept and its recognition as a fundamental right guaranteed under Article 21 of the Constitution of India was initiated as late as 1978. The discourse on the issue was initiated by Justice Krishna Iyer, while giving his observation in Babu Singh v. State of UP8, said, “Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to fair trial, whatever the ultimate decision.
Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings. ”9 The explicit recognition to the right of speedy justice as a fundamental right was granted by the Hon’ble Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar10. Justice 5International covenant on civil and political rights,
OHCHR,
available at: https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/ccpr.pdf (Last visited on Feb. 6, 2023). 6 Universal Declaration of Human Rights, OHCHR, available at: https://www.ohchr.org/en/humanrights/universal-declaration/translations/english (Last visited on Feb. 28, 2023).
7 Ibid
8(1978) 1 SCC 579
9Id. at 6
10(1980) 1 SCC 81
P. N. Bhagwati laid down that a person deprived of his liberty by a process not just, fair, and reasonable has the right to get his right enforced and secure a relief, and a process which does not ensure a reasonably speedy trial shall not be considered to be a just, fair and reasonable process. He further stated, “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. ”11 Another significant development in the --- of the right to speedy justice came with the judgement of the Hon’ble Supreme Court in A. R. Antulay v. R. S. Nayak12, wherein the Supreme Court elaborated upon the concept and laid down certain guidelines to be followed by the courts while ensuring a quick disposal of cases.
The Court held that “the right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. ”13 These judgements of the apex court laid the foundation of the concept of speedy trial in the Indian legal system and established it as a fundamental right available to every person under Article 21 of the Constitution of India.
IMPEDIMENTS IN THE WAY OF EFFECTIVE IMPLEMENTATION OF THE
RIGHT OF SPEEDY JUSTICE
The Indian people are a litigious lot, and a sizable number of new cases are brought before the courts every day with the hope that the system will quickly settle their conflicts. Since the Honourable Supreme Court has deemed the right to prompt justice to be a crucial element of every lawsuit, such an expectation is not unreasonable. To the extent that a litigant must sacrifice his right on the altar of the courts in order to seek redress for his grievances, this right has been lost as a result of the State's institutions' careless attitude toward it. The following problems can be distilled from a quick examination of the complete spectrum of conditions that contributed to the judicial infrastructure's appalling performance in efficiently handling the litigations that were brought before it: 11Ibid.
12(1992) 1 SCC 225
13Ibid.
i. Pendency of cases and excessive procedural formalities: The massive volume of lawsuits that are brought before the country's courts every day hinders their ability to efficiently dispose of the files from the outset. This influx has made it difficult to accomplish the goal of dispensing litigation at a quicker rate, especially when combined with the already extant and steadily growing backlog of cases in the system. Since the early years of India's independent judiciary system, this issue, often referred to as the "pendency of cases" issue, has been a problem. However, it has steadily gotten worse over the past ten years.
As per the latest data available at the National Judicial Data Grid, (NJDG), which hosts and analyzes the data pertaining to the institution, disposal and pendency of cases at various levels of the country’s judicial infrastructure: Supreme Court, High Courts, and District Courts, the number of pending cases at in the abovementioned courts are as follows:
COURT
PENDING CASES (as on December 25, 2024)
SUPREME COURT
82,614 HIGH COURTS (all HCs included) 61,92,482 DISTRICT COURTS (all District courts included) 4,51,86,126
Numerous factors, such as the low number of judges per million people and the judges' overall sloppiness while handling cases, might be blamed for this threat. The lengthy and overly formal procedures, whose compliance consumes much of the important time of the judicial courts across the nation, may, nevertheless, be the fundamental cause. There are surprisingly many procedures that a person must follow if he wants to have a chance of being heard, let alone receiving justice. These formalities range from tiny court costs to the attendance required on the part of the litigants. 14 The state of India operates under the tenet that the law is supreme, which indicates that the state is required to uphold all legal precepts, especially those relating to natural justice.
These rules are intended to make sure that anyone charged with a crime has a fair chance to show their innocence and that the state won't assume guilt before it's proven. Benjamin Franklin's thoughts about this idea are more apt: “it is better that ten guilty escape than one innocent suffers. ” There is a prevalent perception that lengthy procedures always cause delays. While these compliances are required for a just and fair decision-making process, they also cause delays because the accused is given as much time as the court deems necessary to prove his innocence. ii. Adversarial system of Litigation: The adversarial litigation system, which forms the cornerstone of the Indian court architecture, extrapolates this issue of delays.
According to Black's Law Dictionary, an adversarial system, also known as an adversary system, is a procedural system, like the Anglo-American legal system, where active and unrestricted parties contest with one another in order to present a case before an impartial decision maker. 15 This system necessitates the involvement of an advocate or legal counsel in all phases of a legal proceeding, including fact-finding, evidence gathering, witness examination, crossexamination, and so on. In such a method, the judge only takes an observer's role in all of these activities and is limited to passing judgement on the facts and evidence that have been brought before him by the counsels. The attorneys in this case can't be expected to provide a balanced and unbiased evaluation of the facts and evidence because they are representing one of the parties or the other.
Due to the parties' decision to submit just the facts and evidence that support their positions, there is no thorough discovery of all the pertinent information. iii. Absence of a specified statute: The absence of a designated statute to give effect to the 14 Kartikeya Sharma, "The Dynamics Of Increasing Litigation Costs : An Indian Perspective", 2 Dehradun Law Review 39 (2010).
15 Black’s Law Dictionary, 8th edition
right is another obstacle to the successful execution of the right to swift justice. While there may be provisions in the Indian Constitution or the 1973 Code of Criminal Procedure, there is no single, comprehensive act, such as The Speedy Trial Act of 1974 approved by the US Congress, that establishes a deadline for the completion of a procedure and ensures compliance with it. The consequences of the lack of such a formal directive may be seen in the shape of unreasonable and unjustifiable delays in the resolution of a case, many adjournments for trivial reasons, and the condoning of the delays without any consequences for the attorneys or the mistaken judges. In general, lawyers are not very interested in swift justice, especially if they are compensated hourly or daily. The more costs and expenses they may charge their client, the longer it takes for a case to be resolved.
16 There may be a number of additional factors that slow down case resolution. However, their effect is to stifle people's litigiousness since they appear to have lost faith in the courts to deliver effective justice. Even from a broad perspective, it is undeniable that the Indian judicial system is beset by multiple inefficiencies and infinite loopholes, rendering the topic of swift justice virtually unheard of for the bulk of the population. 17
ACTIONS TAKEN SO FAR IN RELATION TO THE PROBLEM
The State, through its various organs, has developed a number of solutions to tackle the problem of clearing the backlog of cases from the judicial records and balancing the need for speedy justice with the principles of fair and natural justice after realising the need to expedite individual litigations to provide the litigants with both effective and meaningful justice. i. Creation of subject-matter based courts: The establishment of various alternative judicial courts, including Fast Track Courts, subject-matter based courts like Family Courts, POCSO Courts, Consumer Courts, and other quasi-judicial institutions like Tribunals for matters related to administration, debt-recovery, motor accident claims, among others, is one of the most significant steps taken in this direction.
The main reason such courts were established was to hasten the resolution of cases that fell under their purview, which would ultimately result in a quicker trial. Additionally, with the creation of the tribunals, the state's institutions have switched their emphasis from maintaining procedural conformity to problem solutions. To that
16 Supra note 4.
17 Vibhuti Bahuguna, "Justice : An Exclusive Reserve For The Elite", 2 Dehradun Law Review 19 (2010).
end, the rules of process have been significantly watered down, giving the judicial authorities sufficient time to deal with complex and time-consuming problems. ii. Encouraging adoption of ADR mechanisms: Additionally, the government has established a number of ADR processes, primarily Lok Adalat, Arbitration, Conciliation, and Mediation, to provide as an alternative to the traditional litigation mechanism. These methods of dispute resolution strive to achieve a peaceful resolution of the conflict by encouraging an open communication between the parties. They do not have the same complicated procedures as those used in the courts. The ADR mechanism deals with civil issues, business matters, marriage disputes, and other disputes that can be settled through dialogue.
Although the ADR mechanism is not directly applicable to criminal cases, the concept of compounding offences as provided in Section 320 of the Code of Criminal Procedure, 1973, can be seen as a reference to the mode of negotiation as an out-of-court dispute settlement mechanism. Such matters which fall under the purview of the provision can be compounded by the parties, with or without the supervision of the court, as the case may be. Compounding in this context refers to a settlement when the party that was wronged consents to drop the accusations in exchange for financial compensation. iii. Modifications to the listing system: The apex court recently made some significant moves to clean up the litigation disposal system so that cases can be resolved considerably more quickly.
These initiatives, which were started by the former Chief Justice of India, Justice UU Lalit, mainly concern the enhancement of the Supreme Court's listing system and the establishment of many concurrent Constitution Benches. The 30 judges of the court will be divided into benches of two judges each under the new listing system, and on Mondays and Fridays of each week, each bench will be assigned up to 60 miscellaneous cases18 (matters connected to the institution of a suit). To hear routine matters on the remaining working days of the week, benches are set up accordingly. According to sources19, the Hon. Supreme Court resolved more than 1,000 miscellaneous cases and numerous other cases within a week.
This project has been advanced by the current CJI, Justice DY Chandrachud, who has demonstrated 18 Legal Correspondent, “New listing system not giving adequate time to take up cases: Supreme Court Bench”, The Hindu, September 15, 2022, available at https://www. thehindu. com/news/national/new-listing-system-notgiving-adequate-time-to-take-up-cases-supreme-court-bench/article65891617. ece (last visited on February 6, 2023). 19 Legal Correspondent, “Supreme Court disposed of over 1,000 cases in past one week: CJI U. U. Lalit”, The Hindu, September 03, 2022, available at https://www. thehindu. com/news/national/supreme-court-disposed-ofover-a-1000-cases-in-past-one-week-cji/article65842857. ece (last visited on February 6, 2023).
a dedication to expediting case resolution. In the first 29 working days after taking office, the Supreme Court decided 6,844 cases, of which 2,511 involved the litigants' personal liberties as a factor.20 Such initiatives have been crucial in easing some of the court's workload and giving those who have been wronged prompt redress. The subordinate courts are nevertheless struggling under a back-breaking backlog of cases, despite the fact that these steps may have had the effect of relieving the load on the upper courts. Since the benefits of the actions done up to this point have not trickled down to the lowest tiers of the judicial infrastructure, these actions have not produced the expected consequences.
SUGGESTED COURSE OF ACTION
The right to speedy trial of the litigants as envisaged by the Hon’ble Supreme Court of India is under a threat of annihilation owing to the indifference of the concerned stakeholders of the judicial system of the country who are actually responsible to protect this indispensable right of the Indian masses. It is essential that in order to maintain its reputation of being the custodian of the rights of the people and the repository of their faith, the judicial institutions of the country need to deal with the challenge posed by the insurmountable backlog of cases by undertaking subtle yet effective reforms to its modus operandi of dealing with the incoming litigations. This can be done through the formation of a hybrid model of justice as enunciated above and recording its functioning on a pilot basis.
While the other institutions like the legislature and the executive branch of the government can also take some steps to reduce the pendency of cases, their efforts shall not serve any purpose if the judicial system does not undertake foundational reforms in its structure as well as function, as in the absence of any meaningful reforms of a permanent nature, the pendency will crop up again in due time and then it will again pose a threat of plunging the right of speedy trial into an existential crisis. This also calls for an increased participation of the litigators in the direction of improving the conditions of the judicial infrastructure as the litigators are not only the officers of the court, but are also the carriers of the law, and therefore, influence the “social powers, interests, and ideals which both form and are formed by legal norms. ”
20 Utkarsh Anand, “Quick Disposal, Personal Liberty Cases in Focus” Hindustan Times, Dec. 21, 2022.
On the basis of the above conclusion, following solutions have been offered which serve to improve both the structural and the functional aspects of the judicial infrastructure:
5.2.1 Reforming the current adversarial system of litigation
As per the Black’s Law Dictionary, adversarial system, or adversary system, is a procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before an independent decision maker21, while the inquisitorial system is a system of proof-taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry. 22 In other words, the former is a party-centric system, wherein the counsels of the parties collect the evidences, conduct the examination of the witnesses and argue before the judge who has to give his decision on the basis of the material presented before him while the latter is a judge-centric system, wherein the judge takes up the major responsibilities of the trial, like fact-finding, witness examination etc.
Adversarial systems rely on the parties to a dispute to gather and present evidence and legal arguments, whereas inquisitorial systems grant the judge wide latitude in defining the scope of a dispute and the evidence relevant to resolving it. 23 Indian courts follow the adversarial system, wherein the counsels undertake the major portion of the work involved in a trial and present their arguments before a judge, a neutral adjudicator who gives his decision on the basis of the evidences laid before him by the parties.
While such a system has its advantages in the form of giving sufficient opportunities to the parties of being heard and presenting their positions in the form of evidences, such a procedure takes up a lot of time, especially in criminal proceedings where a detailed appreciation of the evidence and examination/cross examination of the witnesses has to be undertaken, which, coupled with frequent adjournments, at times on frivolous grounds as well, stretches the case to run for years, even decades in some cases. In various cases where there is no doubt upon the culpability of the accused, be it terrorism cases, like that of Kasab or Afzal Guru, or even some rape cases, particularly the Nirbhaya case, and where awarding of the most severe punishment is inevitable, the counsels for the accused use the gaps in the system and succeed in making a
21 Black’s Law Dictionary, 8th edition
22Ibid. 23Shruti Rajagopalan, "Adversarial versus Inquisitorial Systems: Error and Valuation", 12 Journal of Business Valuation and Economic Loss Analysis (2017).
mockery of the system and evade the inevitable for a sufficiently long time, as was evident in the above-mentioned instances. 24 Had there been a system back then to fill in the procedural gaps, the state would not have wasted its resources on the accused and use them in a much more productive manner, especially in terms of adjudicating more cases during the same time. Such a system is provided by the inquisitorial system, wherein the judge plays the central role in the trial and ensure faster collection and appreciation of evidence by by-passing the delaying tactics used by the counsel for the accused25.
Therefore, to expedite the trials in such cases where the culpability of the accused is proven beyond all reasonable doubt in the pre-trial stage itself, the judge should be allowed to directly proceed towards awarding the punishment and sidestep the procedural formalities while doing so. In other cases, the prevailing practices should be allowed to function as they are, but by eliminating certain irrelevant procedural aspects, or clubbing various formalities into one, to be carried out at a time. Having studied the adversarial system along with its merits and demerits, it has to be seen that whether there is a scope to modify the existing adversarial model or there is a need to develop an entirely new model according to the needs of the Indian judicial infrastructure and its stakeholders.
26 There is a general notion that the adversarial system suffers from two major defects: timeconsumption and excessive party-centric tendencies. 27 So, it serves to reason that if these two anomalies are somehow rectified, the existing system may be used to adjudicate disputes on their merits, as they are being adjudicated in the current scenario. To address the defects, the other system of justice, i. e. , the inquisitorial system may be taken into account. The inquisitorial system is a system of justice delivery wherein the judges take on the primary role in the trial proceedings and actively participate in the fact-finding process by undertaking a rigorous interrogation of the accused.
Unlike the adversarial system, the inquisitorial system does not depend upon the parties and their counsels to gather evidences, rather the judge himself leads the process and ensures that the evidence is not tampered with by the parties by 24 Eric E. Jorstad, “Litigation Ethics: A Niebuhrian View of the Adversarial Legal System” 99 The Yale Law Journal 1089-1108 (1990). 25 Gavin MacKenzie, “Breaking the Dichotomy Habit: The Adversary System and the Ethics of Professionalism”
9 Canadian Journal of Law and Jurisprudence 33-50 (1996).
26 Carrie Menkel-Meadow, “The Trouble with the Adversary System in a Postmodern, Multicultural World”
38 William & Mary Law Review 5-44 (1996).
27 J. A. Jolowicz, “Adversarial and Inquisitorial Models of Civil Procedure” 52 The International and Comparative Law Quarterly 281-295 (2003).
taking the entire evidence himself, thereby securing the sanctity of the valuable evidence and preventing it from any misconstruction by the parties28. While the inquiry under an adversarial system is in the form of a competition between equal parties, the inquiry under the adversarial system is in the form of an inquest, which is an official inquiry undertaken to lay down the facts of the case29. In addition to the abovementioned role of the judge in reducing the role of the defense counsel in the criminal proceedings, the inquisitorial system generally does not allow the accused the privilege of having a counsel, and even if the counsels for both the parties or either party are there, their role is to suggest the course of action to be adopted by the judge during the conduction of the trial and not actively involve in the trial itself.
Furthermore, while the judge remains neutral throughout the trial proceedings, he does not need to presume the innocence of the accused since he is responsible to ask such questions which facilitate the finding of the whole truth and not the truth as the accused sees it. The cardinal features of the inquisitorial systems as listed above can prove to be a response to the need to reform the adversarial system by modifying some components of the system as it exists currently. It may be contended that the overarching authority of the judge in a criminal trial may be detrimental to the accused and his right to a fair trial as he has no credible opportunity to defend himself in the face of a biased judge who may be prejudicial towards the accused and may construe the case against him30.
While it may be true, but then it should be taken into consideration that the inquisitorial system is in practice in various countries of the world including Belgium, France, Germany, Italy and the Netherlands. These countries are not only staunch supporters of human rights, including the rights of the accused persons, but also boast of a robust judicial mechanism where the rate of disposal of cases is fairly high as compared to their adversarial counterparts, without compromising the integrity of the trial and quality of justice delivery31. Both the systems have their own pros and cons. A cursory study of both the models of litigation would reveal that while the adversarial model is instrumental in revealing the hidden 28 Luke M. Froeb and Bruce H. Kobayashi, “Evidence Production in Adversarial V. Inquisitorial Regimes”
70 Economics Letters 267-272 (2001).
29 Peter J. Van Koppen and Steven D. Penrod, “Adversarial or Inquisitorial: Comparing Systems”, in Peter J. Van Koppen and Steven D. Penrod (eds.), Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems 2-20 (Plenum, 2003). 30 Stephen C Thaman, “Criminal Procedure: Adversarial and Inquisitorial Legal Systems” 5 International Encyclopedia of the Social & Behavioral Sciences 227-231 (2015). 31 Marvin E. Frankel, “Some Comments on Our Constitutionalized Adversary System by Monroe H. Freedman”
2 Chapman Law Review 253-259 (1999).
information of case, especially when the facts are co-related to each other, where the facts are isolated from one other, the inquisitorial system is more beneficial. 32 Also, the adversarial system compulsorily provides the accused with the right to remain silent, which is absent in the inquisitorial system. While such a right to silence is essential to prevent the accused from giving any self-incriminatory statements, the same give rise to a host of other problems, including the lack of cooperation of the accused in the investigation process and fact-finding. Since both the systems have their own benefits and fallacies, adopting any one system may not prove to be a desirable step, and any radical change in the nature of justice delivery systems, i. e.
, doing away with the adversarial system as a whole and replacing it with the inquisitorial system in its fundamental sense may prove to be counter-productive, as in spite of its drawbacks, the adversarial system is a better system for justice delivery when juxtaposed with the inquisitorial system of justice33. Therefore, it is prudent that a hybrid model must be developed which contains the positive elements of both the methods of justice delivery and ensure that good quality justice is provided to the litigants at the earliest possible instance without any compromise with the rights of the parties, including the rights of the accused, as for every ‘justice delayed is justice denied’, there is a ‘justice hurried is justice burried’34.
There is another argument which prefers the transcending of the traditional paradigms of the penological aspects of the two systems by forming a renewed focus on the concepts of restorative justice and therapeutical jurisprudence. It advocates that the instead of undertaking any hybridization of the two systems, both the systems should be transformed as per the needs of the society35. But this argument is commented upon by another scholar who lays down that while the notion of ‘post-adversarial’ and ‘post-inquisitorial’ systems may be a good concept in theory, it’s application will be based on the nature of the political system of the country in which it is applied and its conduciveness to adopt reforms36.
In the Indian context, the Malimath Committee Report of 2003 on reforms in the Criminal Justice System also recommended that the adversarial system, as established in India, needs to be augmented with sufficient features of the inquisitorial system to increase its efficiency. It 32 Michael K. Block, Jeffrey S. Parker, et. al. , “An Experimental Comparison of Adversarial versus Inquisitorial Procedural Regimes” 2 American Law and Economics Review 170-194 (2000).
33 Supra note 191
34 Supra note 22
35 Arie Freiberg, “Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms” 8 European Journal of Criminology 82-101 (2011). 36 Leonidas K. Cheliotis, “The Perils of Non-Adversarialism: Commentary on Freiberg” 8 European Journal of Criminology 108-112 (2011).
recommended that the investigation process needs to be reformed to give the courts more say in the discovery of the truth, as in the quest of being neutral, the judges become passive players and participate very little in the proceedings. 37 The result of such abstinence is that the entire trial is controlled by the parties through their counsels, and the truth fails to be discovered. Conducting any kind of reform in the established adversarial system would include undertaking various radical changes in the entire procedural, as well as the substantive laws, both civil and criminal as the rights of the accused and the principles of criminal justice would have to be modified as per the requirements of the inquisitorial system, primarily the principle of presumption of innocence, as in the new system, the accused might not have a legal counsel to turn the matter in their favour.
Further, any hybridization of the two models which would punish the accused of an offence in which their culpability has already been established through compelling evidence and witness testimony would necessarily involve depriving the accused of his right to defend himself and present his arguments. In a country where the principles of fair justice are held in very high esteem, no person would give up such a right. Therefore, while this dissertation suggests such radical measures, as the title of the study demands so, it needs to be understood that some other reforms which are not radical but effective in their own right, that is, they are borne out of the existing procedures and which serve to uphold the interests of the state without compromising the rights of the accused are the need of the hour.
The following suggestions aim at using the existing provisions of the law of the land, including the Grund Norm, and at the same time, plugging the holes in the existing system to make it more effective and efficient.
5.2.2 Setting up benches comprising of specialist judges
The judges, or the adjudicators are the fulcrum of our judicial infrastructure, having a central role in the justice delivery mechanism. They are vested with the power to make the final decision, and are vested with a certain discretion in terms of awarding the punishment in the event of a conviction. Therefore, it is of utmost importance that they are in a position to completely understand the facts and decide the case after a complete appreciation of the evidence. Our judges though, are well-versed with the laws of the country and also possess a vast experience of dealing with various situations, they are generalists presiding over a case 37 Government of India, “Committee on Reforms of Criminal Justice System” 27-30 (Ministry of Home Affairs, 2003)
which may demand a very specific set of knowledge, particularly cases related to scientific developments, disputed historical facts and so on. In the event of such complicated questions arising during a case, the judges must seek the services of an expert of that particular field, the examination of whom takes up a lot of time. Therefore, if judges are themselves specialists in the subject matter of the dispute being presided by them, it could save the time of the court otherwise utilized in securing an expert opinion, and would also lead to a more reasoned decision based on a combination of the facts, the law, and the ground realities. The constitution of the benches can be done in the following manner: • Where there is a single-issue requiring specialist knowledge, bench comprising of judges specialist in one field.
• Where there are multiple issues requiring specialist knowledge, bench comprising of judges specialists in those fields. • Where the case is so vexatious that the issues demanding specialist knowledge cannot be determined, a multiple judge bench of the senior-most judges of the concerned court. While the Supreme Court has already specialist benches based on subject matter, like the Green Bench etc. , these benches have generalist judges only. Therefore, it is suggested to place specialist judges in all the benches to expedite the proceedings and achieve meaningful judgements.
5.2.3 Establishing multiple seats of the Supreme Court as envisaged under Article 130 of
the Constitution of India Supreme Court is the apex judicial forum in the country and in many cases, it is the court of the last resort, with litigants flocking from different parts of the country seeking finality of their dispute redressal. Due to this nature of the Court, it witnesses a plethora of petitions everyday, generally in the form of an appeal against the order of a High Court, or against any executive decision infringing upon the fundamental rights of an individual. With such cases clogging the Supreme Court registry, the CJI-led court faces difficulty in focusing on its core objective, that is to serve as a Constitutional Court and interpret the Constitution whenever required, and when
it does so, it takes up a lot of time. Further, the current cost of living and the indispensability of the current crop of the advocates of the Supreme Court has made Tilak Marg unaffordable for the majority of the litigants. To tackle this, it is suggested that the Supreme Court, just like High Courts, establishes its circuit benches in major cities of the country, or zone-wise bench system by invoking Article 130 of the Constitution of India, which lays down that the Supreme Court may sit in Delhi or any such other place which the Chief Justice of India decides after the approval of the President.
The Supreme Court may establish benches after dividing the country into four main zones and establish a bench in a major city of the region: • North Zone Bench at New Delhi • South Zone Bench at Chennai/Hyderabad • West Zone Bench at Ahmedabad/Jaipur • East Zone Bench at Kolkata/Dispur • Central Zone Bench at Bhopal/Indore Each bench would have an equal status and be the Supreme Court in their zone. They shall be the final court of appeal for all the courts falling under its jurisdiction. It would divide the current matters into 5 courts, reducing the pendency with each court, and also make the apex court accessible to all, not just in theory but in practice. However, such a change would need amendments to the Constitution and the Supreme Court Rules to facilitate such changes in the establishment.
In this regard, it is pertinent to point out that the 229th Report of the Law Commission of India, which dealt with the establishment of multiple cassation benches of the Supreme Court also recommended the establishment of four cassation benches in different zones of the country to deal with the appeals from the lower courts and achieve a final resolution of the dispute, and that the Supreme Court at New Delhi to serve only as a Constitutional Court which would
interpret the questions related to the Constitution of India.38
5.2.4 Ensuring participation of retired judges:
Our judicial system regularly witnesses the retirement of a significant number of judges from the services every year across courts. These judges gain retirement upon attaining the prescribed age limits but might still be able to contribute to the state in terms of deciding cases. Therefore, the state may work towards developing a system wherein the services of the retired judges of High Courts or the Supreme Court may be availed and various matters relating to the institution of a suit, or all other matters as may come within their competency may be decided by them. Further, since these judges already have a vast experience of dealing with diverse cases, including the ones involving giving death penalty, these cases may be allotted to them, and if required, may be sent for confirmation to the court which was supposed to hear the case originally.
Sriram Panchu, a senior advocate, in his editorial39 published in The Hindu, suggested that the services of such ad-hoc judges may be availed upon the payment of an honorarium, and they be mandated to hear the cases using the virtual modes of communication adopted by the courts during the COVID induced lockdowns. Such a system would allow the serving judges of the courts to focus more on the other vexatious cases and would serve as an effective measure to bring down the insurmountable backlog of cases. Further, the state may also choose to work on the recommendations given by the Law Commission of India in its 229th Report, wherein it recommended that the retirement age for the Supreme Court and High Court Judges be raised to 70 and 65 years, respectively. 40
5.2.5 De-criminalization of Minor Offences
The state may also work towards the de-criminalization of some minor offences which can be settled by out-of-the court means like fine, mediation etc. A glimpse of such an effort can be seen in the Jan Vishwas Bill, 2022, tabled by the Union Government in the Parliament, which aims at de-criminalizing 183 offences across 42 legislations with the objective of facilitating ease of doing business in India. Under this Bill, the penal provisions under various Acts, such 38 Law Commission of India, “229th Report on Need for Division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in Four Regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai” 24-25 (August, 2009) 39 Sriram Panchu, “India’s Crushing Court Backlogs, Out-Of-The Box Reforms”, The Hindu, Dec. 19, 2022.
40 Supra note 206
as the Air Act, Forest Act, Cinematograph Act among others, are either omitted or replaced with fines. While the provision of fine denotes the commission of an offence, it would ensure that such cases do not reach the courts and that they are settled amicably. According to G.S. Bajpai, VC of RGNUL, and Ankit Kaushik, Assistant Professor, RGNUL, it is only a ‘quasidecriminalization’ and is restricted only to the offences which are regulatory in nature41. Nonetheless, such an initiative may be considered to be an attempt towards achieving an actual and meaningful decriminalization of offences, and if a more comprehensive study is undertaken, the ambit of such an effort can be extended to various penal offences as well.
5.2.6 Use of Artificial Intelligence tools to dispose cases
Artificial Intelligence, a relatively unknown technology in earlier times, has nowadays become a very important tool in the hands of the advocates, who use this technology for various purposes, like document review, legal research, and predicting the results of a case. With its large repository of legal databases and far-superior processing speed as compared to a human mind, it produces accurate results in minutes and minimizes the scope of human-made error. Research conducted in the field has found that in the case of diverse legal problems, even a simple AI mechanism has shown 90% accuracy in its results42. It is a well-known fact that the procedural formalities in the Indian judicial system involve a massive quantum of paperwork to be read and filed by the advocates and judges as well.
This red-tapism, along with several other mandatory requirements makes the entire litigation process very cumbersome and tedious, both for the litigant as well as the advocate. The result of the compulsory compliance of the procedure is the clogging of the judicial machinery, as while there is no cap on the number of litigations reaching the courts per day, the processing time for each case increases due to the formalities and consequently, the cases get delayed, sometimes to years and decades in the end. It must be noted that till now, as a general rule, the entire litigation process has been completely manual, without any technological recourse. However, in recent times, various technological aspects have been added to the otherwise entirely manual litigation process, in the form of efiling of cases, e-courts services, etc.
These services have provided some relief to the litigants 41Editorial, “A Failed Attempt at Decriminalization”, The Hindu, Dec. 29, 2022.
42 Maxime C. Cohen, Samuel Dahan, et.al., “The Use of AI in Legal Systems: Determining Independent
Contractor V. Employee Status” Artificial Intelligence and Law (2023).
in terms of lessening the paperwork, even if to a certain extent. However, the persistent issue of rising judicial backlog remains a concern for which these services do not seem to offer a solution. To that end, the role of Artificial Intelligence as a viable option is being explored by the government and the judicial administration in the form of developing a model which would answer the questions put up to it and give judgments based on the facts and evidence submitted to it. Various authors have undertaken a study to develop a technological framework that can help in predicting the result of a case based on the facts of the case. For their research, they used the legal documents disposed off by the Indian Central Information Commission for cases related to the violation of the Right to Information Act. The results they secured were in the form of a binary classification problem43.
Another set of researchers developed an algorithm to predict the outcome of a case44. The algorithm would function on the following basis: Fig. 2: Functioning of Classification Algorithm The result of the algorithm would be an answer to the questions put up to it based on the inputs it receives. Another significant development in the field took place in the work45, wherein the researchers developed a ‘Supervised Learning Algorithm namely, Support Vector Machine (SVM)’ to predict the outcome of judicial cases. The model proposed by them shall serve the legal practitioners as it would predict the result of a case based on the essential conditions required for the commission of an offense (for example, dowry, domestic violence-related cases). It would be noteworthy to mention that their results in the preliminary stage secured a 43 Arvind Kalia, Naveen Kumar, et. al.
, “Classifying Case Facts and Predicting Legal Decisions of the Indian Central Information Commission: A Natural Language Processing Approach” Advances in Deep Learning, Artificial Intelligence and Robotics 35-45 (2022). 44 Kapil Mundada, Mihir Kulkarni, et. al. , “Computer Aided Commercial Case Classifier Using Artificial Intelligence Algorithm” Second International Conference on Inventive Research in Computing Applications (Icirca-2020) 468-472 (2020). 45 Riya Sil and Abhishek Roy, “A Novel Approach on Argument Based Legal Prediction Model Using Machine Learning” International Conference on Smart Electronics and Communication (ICOSEC 2020) 487-490 (2020).
93% accuracy, which could be increased which a change in the parameters. Though the presence of human intellect in the discharge of judicial functions is necessary to ensure the element of compassion and sound value judgment, it is due to the inherent bias and lackadaisical attitude of the persons involved in the justice delivery mechanism that the trial and the consequent judgment gets delayed, and when it does come, it is of such a nature that the entire process needs to be undertaken again when the aggrieved litigant prefers an appeal in a higher court. Therefore, it is the need of the hour to create such a technological mechanism that is result oriented and gives maximum output at minimum human intervention. 46 One of the key drivers behind developing this technological infrastructure is the concept of Machine Learning in the field of Artificial Intelligence.
In the article47, the authors investigated the impact of using artificial intelligence tools in corporate firms working in the field of law and based on their results, concluded that the use of such tools shall increase the efficiency of its users in the course of their functions. All the machine learning algorithms developed so far are based on the premise of learning from all the input data received by it. So, if a mechanism is developed wherein all the essential information regarding an offense is fed into the system and then the question is put up regarding the culpability or innocence of the accused, the machine would be able to answer the question in no time and without the bias of the humans. The following flowchart shows the intended action of the program in case of a question on the offense of kidnapping. 46 Anjanette H. Raymond and Scott J.
Shackelford, “Technology, Ethics, and Access to Justice: Should an Alogrithm Be Deciding Your Case? ” 35 Michigan Journal of International Law 485-524 (2014). 47 Evgenia E. Frolova and Elena P. Ermakova, “Utilizing Artificial Intelligence in Legal Practice” Smart Innovation, Systems and Technologies 17-27 (2022).
Fig. 3 Algorithm for the offence of kidnapping Further, research conducted on the means to improve the efficiency of machine learning-based mechanisms highlighted that an ‘argument-based machine learning’ system should be developed to improve the accuracy of the system, where the reasonings of the previous judgments can serve as a valid argument to give future decisions. This view was reiterated in another work on this point, highlighting the increased accuracy as a result of the model48. To that end, a language model on the lines of a Generative Pre-trained Transformer (GPT) like the GPT-3 can be used which would give the replies to the questions in the English language, making it easy to actively engage with the mechanism and achieve results49.
Further, in a similar fashion as mentioned above, an algorithm may be developed to settle a plethora of cases having similar facts in one single instant as the facts and judgments of the previously settled cases on the point may be uploaded into the database of the mechanism, 48 Riya Sil, Abhishek Roy, et. al. , “Artificial Intelligence and Machine Learning Based Legal Application: The State-Of-The-Art and Future Research Trends” International Conference on Computing, Communication, and Intelligent Systems (ICCCIS) Artificial 57-62 (2019). 49 Luciano Floridi and Massimo Chiriatti, “Gpt-3: Its Nature, Scope, Limits, and Consequences” 30 Minds and Machines 681-694 (2020).
based on which, the new cases may be decided as well.50 Also, in cases relating to bail, essential conditions required for granting bail may be stored in the database, and running those conditions through its algorithms, the mechanism may give the results on whether the bail may be granted to the accused or not.
5.2.7 Enacting a Statute governing the Right to Speedy Trial
Due to the absence of a dedicated statute governing the trial proceedings, our judicial system has fallen to prey to the ploys of the counsels who use nefarious means to the delay the trial. To that end, the government may undertake efforts to enact a Speedy Trial Act, on the lines of the Speedy Trial Act, 1974, as passed by the US Congress. Under the Act, the time limits for both hearing and adjudicating a matter may be fixed and a plethora of formalities may be combined into one. Further, a limit may be prescribed on the number of adjournments which may be sought by either party, and the grounds on which such an adjournment may be sought.
The enactment of a dedicated statute will also lay down a summarized procedure, combining various lengthy procedures, including conducting examinations and cross-examinations in the same day, encouraging measures related to pre-trial discretion to prevent further lengthy proceedings, identifying the source of litigations and reducing the incoming litigations by taking measures to dispose them through alternative mechanisms. The suggestions given above are open to discussion and further research work and are aimed at giving a starting point to the discourse on developing new and innovative mechanisms to achieve the long distant dream of achieving speedy justice.
While some of these measures would involve a huge expenditure on the part of the state towards requisite infrastructural development, it needs to be realized that such an expenditure is indispensable as the ultimate aim of such expenditure is to secure the interests of the masses, which is guaranteed to them by the Constitution of India.
CONCLUSION
In the circumstances where a fundamental right of the people of the country is under threat of obliteration due to the perennial issue of insurmountable backlog of cases, it is essential that the concerned institutions of the state work in co-ordination towards the exploration of such
50 Supra note 111
solutions to the problem, which are not only effective, but are also suitable to the practicalities of our country, particularly the available judicial infrastructural facilities. It is of utmost importance that while the judicial courts of the country realize that they are the courts of justice and not of procedure, and must therefore, give up on the anachronist approach of valuing procedural compliance more than the actual justice, the executive branch of the state should also fulfil its responsibilities with diligence, and must ensure that the valuable recommendations of the Law Commissions are actually implemented and not gather dust, as they usually do.
Our generation is standing at a crucial juncture where not only do we have to remember the errors of the past, but also correct them in the present itself as there is a future generation which looking upon us as their inspiration to fight with the troubles of their lives. It is our responsibility to ensure that of all the things that the new generation has to face, inability to repose faith in the judicial system to secure justice is not one of them. There is no time like the present to undertake reforms in the system to make it a better one. Ensuring expedited justice has long been the cornerstone of criminal law and essential to its very existence. It serves as a crucial safeguard against arbitrary and unjust detention.
51 Speedy justice has an impact on society as a whole because it provides people confidence that not only will their rights be upheld by the courts, but that it will also be done in a way that makes justice pertinent to the remedy sought at the outset of the legal process. However, it must be noted that the discourse on speedy justice should be taken to include delivery of justice in a manner which is both effective as well as efficient, meaning thereby that not only should the justice be delivered as per a fixed timeline, the same should not suffer from any legal infirmity and should not be delivered in a wrongful manner. The basic norms which ensure cannot be overlooked in achieving the goal of speedy justice because common proverb that 'justice hurried, justice burried'.
52 In other words, the judicial institutions should strive to maintain a balance between the consideration of speed and justice. When Vladimir Ilyich Ulyanov, also known as Vladimir Lenin remarked that “There are decades where nothing happens; and there are weeks where decades happen”, he was perhaps urging one and all to undertake a revolution in the form of reforms which would set the course of the future of the country. It is upon us to dedicatedly work towards the cause to ensure that
51 D.P. Sharma, “Speedy Justice and Indian Criminal Justice System” 45(3) Indian Journal of Public
Administration 356 (1999). 52S.N. Sharma, “Fundamental Right To Speedy Trial: Judicial Experimentation” 38(2) Journal of the Indian Law Institute 236 (1996).
the day comes when our justice delivery system works without any botheration, and it would be at that day, when we can be actually proud of the journey undertaken to achieve the desired goal.