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(2017) 7 GJLDP (October) 53
Delays in Subordinate Judiciary as an Impediment in Materializing the Right to

Speedy Justice - A Review
DELAYS IN SUBORDINATE JUDICIARY AS AN IMPEDIMENT IN MATERIALIZING THE RIGHT

TO SPEEDY JUSTICE - A REVIEW
by
Jagadeesh Chandra T.G.*
Abstract Over the years, huge pendency of cases and inordinate delays are the most
important problems, faced by the Indian Judiciary. Although, there is wide-spread
praise for the quality of the judgments delivered, and the hard-work being done by
Indian Judiciary, the problem of delay and huge arrears stares at us all. On the one
hand, the causes of delay in criminal trials have been examined by various committees
and academicians and have also been discussed in various judgments in plethora of
cases. It is observed that unless we do something about it, the whole system would
get crushed under its weight. Speedy Justice is a fundamental right, which is implicit
within the broad arc and content of Article 21 of the Constitution of India. It is the
constitutional obligation of the state to dispense speedy justice, more so in the field of
criminal law. The Hon'ble Supreme Court in number of cases laid down certain
important guidelines for the enforcement of speedy justice, but failed to implement
the same by trial courts. Today, with rapid increase in commerce and trade, the
disputes are likely to increase more. Therefore, this paper revisits and examines the
judicial reflections on the causes for the delay and critically analyses the effectiveness
of guidelines issued for ensuring speedy justice while attempting to make suitable
suggestions for appropriate implementations.
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I. INTRODUCTION
The Judiciary being the ultimate protector of human rights and the final resort for
dispensation of justice, the citizens of India look up to this institution with great
respect and eternal hope. This casts a very heavy responsibility on the entire judicial
system to live up to the expectations reposed in it and to maintain the sacred aura
attached to it unsullied. Qualities of honesty and integrity are inherent to these
expectations.1 In a developing economy, for that matter in any modern economy,
there is an urgent need to implement nationally relevant and important projects in a
time bound manner. The role of the judiciary places enormous responsibility on the
shoulders of the Courts. The development of the nation is equally dependent on the
dynamism and the innovativeness of the judicial system. Hence, there is an urgent
need to ensure that no justice is delayed and the situation existing today is remedied
soon.2 Despite the increasing incidence of reliance on the Courts, there are large
sections of the population which are unable to approach the judicial system on account
of factors such as poverty, lack of awareness and entrenched social discrimination.
Thus we have an apparent paradox i.e., even though the judicial system has been
tackling a continuously rising case-load, the overall social indicators of access to
justice are quite disappointing.3
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Increase in population, lack of adequate number of Courts, disproportionate judge
strength as against the population, lack of ministerial manpower, lack of
infrastructure, snail's pace in computerization and use of information technology,
inadequate budgetary allocations for judiciary, awareness, globalization, raise in
economy, changed economic considerations, literacy, faith in the system, accessibility,
resources, impact of legislations, standards of living and new dimensions to
relationships are
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the reasons for huge pendency and delay in disposal.4 The causes for the delay have
been identified by many committee reports which have recommended suitable
measures in the procedural laws. The contribution of judiciary is remarkable in terms
of recognizing the speedy justice as a fundamental right and also highlighting the
reasons for the delay. Time and again, the Supreme Court has laid down guidelines
and issued directions for the enforcement of the right to speedy justice.
II. WHAT IS CALLED AS DELAY, PENDENCY, ARREARS AND BACKLOG OF CASES?

When we talk about the enforcement of speedy justice, the basic question is - what
is called as delay? There is no single or clear understanding of when a case should be
counted as delayed. Often, terms like “delay,” “pendency,” “arrears,” and “backlog”
are used interchangeably. This leads to confusion. To avoid this confusion and for the
sake of clarity, these terms may be understood as follows.5 According to the Law
Commission of India's 245th Report on Arrears and Backlogs, ‘pendency’ means ‘all
cases instituted but not disposed of, regardless of when the case was instituted’, the
term ‘delay’ means ‘a case that has been in the Court/judicial system for longer than
the normal time that it should take for a case of that type to be disposed of’ while the
term ‘arrears’ is understood in relation to ‘delayed cases that might be in the system
for longer than the normal time, for valid reasons; those cases that show unwarranted
delay are referred to as arrears.’ ‘Backlog’ means ‘when the institution of new cases in
any given time period is higher than the disposal of cases in that time period, the
difference between institution and disposal is the backlog. This figure represents the
accumulation of cases in the system due to the system's inability to dispose of as
many cases as are being filed.’ Though the Law commission of India has explained the
meaning of these terms but no satisfactory applied definition can be ascertained for
the term ‘delay’ unless there is an availability of specific time tables for disposal of
different categories of cases. The Hon'ble Supreme Court
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advocated the use of case-specific time tables for the timely disposal of cases in
Ramrameshwari Devi v. Nirmala Devi6 and held that the trial Court should, at the time
of filing of the plaint, prepare a complete schedule and fix dates for all the stages of
the suit, right from filing of the written statement till the pronouncement of the
judgment and the Courts should strictly adhere to the said dates and the said time
table as far as possible. If any interlocutory application is filed then the same can be
disposed of in between the said dates of hearings fixed in the said suit itself so that
the date fixed for the main suit may not be disturbed. But, so far, neither the Judiciary
nor the legislature has set the guidelines for time bound disposal of the cases. Unless
that is available for the subordinate judiciary, the meaning of ‘delay’ cannot be
satisfactorily explained and remains unsettled.
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III. JUDICIAL REFLECTIONS ON CAUSES FOR THE DELAY

Indian Courts are held in high esteem not only by developing but by developed
countries as well. There is wide-spread praise for the quality of the judgments
delivered, and the hard-work being done by Indian Judiciary. The problem of delay
and huge arrears stares us all in the face and unless we do something about it, the
whole system will get crushed under its weight. We must guard against the system
getting discredited and people losing faith in it and taking recourse to extra-legal
remedies with all the sinister potentialities.7 While taking notice of certain distressing
and unethical tendencies, the Supreme Court in Swaran Singh8 observed that “it is the
game of unscrupulous lawyers to get adjournments for one excuse or the other till a
witness is won over or is tired. Not only that a witness is threatened; he is abducted;
he is maimed; he is done away with; or even bribed. There is no protection for him. In
adjourning the matter without any valid cause a Court unwittingly becomes party to
miscarriage of justice.”
The causes of delay in criminal trials have been examined by various committees
and academicians while also finding mention various judgments. A few which affect
the system are -(a) trial magistrates list a large
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number of cases every day when they cannot physically pay attention to all those
cases personally, leading to a waste of time on calling work or roll calls only to adjourn
the cases to next dates (b) cases being required to be adjourned because prisoners
are not produced before the judge (c) witnesses not being present, though served, or
not being served well in advance (d) dilatory tactics of prosecution or defence (e)
inept handling of Court administration by inefficient or inexperienced judicial officers.”9
In additional to the above mentioned causes identified by Law Commission of India,
there are many other causes which have been highlighted by the judiciary in a
plethora of cases.
A. Delay in Police Investigation

The criminal law is set in motion after filing an FIR and is followed by an
investigation. As a part of investigation process, if the police officer seeks the custody
of any person for pre-indictment or pre-trial interrogation, he must file an affidavit
sworn by him explaining the reasons for not only for such custody but also for the
delay, if any, in seeking the police custody.10 In the absence of a clear-cut policy on
scientific investigation and proof, criminal proceedings continue in old fashioned ways,
causing enormous delays and costs and occasional miscarriage of justice.11 The Law
Commission has highlighted the following as some of the reasons for delay in
completing investigation process in ordinary cases and cases against influential
persons.12 The prominent reasons are (a) apathy and inaction on part of the police in
registering FIRs and taking up investigation in right earnest for various reasons (this is
so inspite of Police Manuals emphasizing the need for speedy and prompt
investigation); (b) police is either hesitant to proceed with the investigation against
important/influential persons or they are under pressure not to act swiftly especially if
the person accused is in power or an active member of the ruling party and
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therefore, they adopt a pusillanimous attitude when the accused are such persons; (c)
corruption at Police Station level is affecting the timely and qualitative investigation.
Further, the Police Stations are understaffed and the police personnel lack motivation
to act without fear or favour. (d) When the FIR is not registered within a reasonable
time or the pace of investigation is tardy, there is no internal mechanism to check this
effectively. Even in States where Additional Superintendents are posted in every
District to be mainly in charge of crimes (as distinct from general law and order
duties) the situation has not improved, except marginally. (e) There is no periodical
exercise to upgrade the skills of investigation. There is no intelligence network worth
the name to get the inputs of crime and corruption and to take up preventive
measures. (f) Sufficient priority is not given for investigation of crimes. (g) Sanctions
for prosecution are unduly delayed by the Governments. All these reasons are not
exhaustive and more reason may be identified, which cause delay during investigation.
B. Delay in Services of Summons/Warrants

Absence of some or all the accused or non-production of undertrial prisoners at the
stage of framing of charges and during the trial contributes for the delay. Earnest
efforts are not being made by the Police in apprehending and producing the
absconding accused. Execution of warrants has become the least priority for the police
who have their own reasons, may be genuine or artificial. Where there are large
number of accused, the delays on this account have become a routine feature. If the
accused are residing outside the District or the State, it compounds the problem
further.13 One of the causes for delay even at the stage of commencement of trial is
service of summons to the accused. The Code of Criminal Procedure provides for
various modes of service. Section 62 of the Code provides that summons shall be
served by a Police Officer, or subject to such rules being framed by
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the State Government, by any officer of the Court or other public servant.14
Unfortunately rules have not been framed by many State Governments.15
C. Delay in Examination of Witnesses

Delay in examination of witnesses leads to many unreasonable consequences and
several reasons are attributed to this malady such as inordinate delay in the trial of
cases.16 The Hon'ble Supreme Court has observed that “the question of delay in
examining a witness during investigation is material only if it is indicative and
suggestive of some unfair practice by the investigating agency for the purpose of
introducing the got-up witness to falsely support the prosecution case.”17 Although,
this issue may be collateral but it is dangerous to the administration of justice and
whatever may the issue primarily, it contributes for the delay.
D. Delay in Submission of Expert Reports
Police is quite often handicapped in undertaking effective investigation for want of
modern gadgets such as cameras, video equipment etc. Forensic science laboratories
are scarce and even at the district level, there is no lab which can render timely
assistance to the investigating Police. Further, it is common knowledge that there is
dearth of forensic and cyber experts in police departments of various States. The result
is that police heavily lean towards oral evidence, instead of concentrating on scientific
and circumstantial evidence. The report of FSL experts and Medical Jurists play a
seminal role, both at the investigation stage and at the trial stage, in the
determination of facts. The police and the Court complain that these reports are not
being submitted in time by the experts concerned and the
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fact remains that this delay hampers the investigations and delays trials. Certain State
Governments have laid down time frame for submission of reports by the experts but
these norms are not being adhered to, partly due to inadvertence and over-loading of
cases to these institutions.18
E. Non Implementation of Pre-Trial Hearing under the Code of Criminal

Procedure
In India, the concept of pretrial hearing has not taken deep roots. Sections 291 to
298 of Cr.P.C. provide for sorting out certain matters at the pre-trial hearing. Section
294 envisages that the particulars of every document filed by the prosecution or the
accused shall be included in a list, and the other party or its pleader “shall” be called
upon to admit or deny the genuineness of each such document. Where the
genuineness of such document is not disputed, the document may be treated as
‘proved’. This provision, unfortunately, is rarely utilized.19 The non-implementation of
the same contributes for the delay.
F. Adjournments
A notorious problem in the functioning of the Courts, particularly trial Courts, is
granting of frequent adjournments, more often than not on flimsy grounds. This
malady has considerably eroded the confidence of the people in the judiciary. The right
to speedy trial is thwarted by repeated adjournments, a curse for the Courts.20 The
Police fail to ensure that prosecution witnesses turn up in time and quite often, even
Investigation Officers are defaulters. Trial cases are adjourned quite often for non-
attendance of prosecution witnesses. Advocates appearing for the accused seek
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adjournments without adequate justification with the sole aim to delay the trial.
Advocates take advantage of the heavy workload in the Courts to press for
adjournments. The witnesses are often constrained to leave the Court without being
examined. Sometimes, the Prosecution also seeks adjournment without prior notice to
the advocate for the accused.21 The Judges act with unfettered discretion. Some
Judges believe that it is unreasonable and harsh to refuse an adjournment when the
lawyers put forward some ground or the other for adjournment. Judges must realize
that the arbitrary exercise of discretion causes delay and harms innocent persons like
the witnesses. To regulate the discretion, the High Court must lay down the
exceptional circumstances pertaining to the when adjournment can be granted.22 Even
though in some of the cases the Hon'ble Supreme Court had laid down certain norms
but the trial Courts have failed to implement them strictly.
G. Improper Court Management and Corruption

In regard to court management, there are two problems about which everyone
complains. The first is posting large number of cases which everyone knows cannot be
dealt with on a particular day for sheer want of time. This leads to the Court wasting
considerable time in calling the cases. The second problem relates to frequent
adjournments.23 Trial Judges do not put in place effective case management measures
such as, fixing up proper time-schedules, ensuring continuity in trial and dealing with
the advocates with firmness. Further, there is a tendency on the part of some of the
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Judges to be complacent, once they reach the prescribed number of units (i.e.
required number of disposals per month).24 Corruption and delays are two serious
problems discerned in our criminal justice system and despite several attempts both
have defied satisfactory solution. Corruption is largely responsible for delays in the
system.25
H. Delay in Pronouncing/Signing of Judgment/Order and Vacation for the
Courts
In the trial of criminal cases a Judge should be a little more active as he/she can
contribute to a great extent in preventing the delay in the administration
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of justice. On many occasions the Sessions Judges adjourn the cases for long periods
of time. This causes delay and many witnesses who would have supported the
prosecution case lose interest in the case and often forget the ethical duty cast on
them.26 Some Judges do not deliver Judgments for years. If there is an inordinate
delay, the Judge may forget important aspects of the case, thereby contributing to
failure of justice. There is also a complaint that the Judgments are not promptly
signed after they are typed and read, causing great hardship to the parties.27 There is
long and inordinate delay in delivering judgments, which should be avoided in public
interest.28 It appears that vacations for the Courts is a legacy of colonial rulers. Most of
the higher Courts were presided by Judges hailing from England. That was the time
when the pressure of work in Courts was not so great. Besides, as rulers they were not
very much concerned about the problem of delay in disposal of cases. This appears to
be the real reason for the introduction of vacations for Courts in India. Whether there
is any justification to continue the legacy of vacations in independent India is a
pertinent question. Access to Justice and speedy trial being precious fundamental
rights of the citizen, the Courts ought to remain open round the year. The time has
come for introspection and to respond to the just expectations of the litigant public
who clamor for speedy justice and access to justice round the year.29
I. Delay in Appointment of Judges and Appointing Incompetent Judges

It is unfortunate that large number of vacancies in the High Courts remain unfilled
for a long time in spite of the formula given by the “Arrears Committee” for
determining the Judge strength and for expediting the appointment process. The
appointment process is mainly under the control of the judiciary and therefore, the
blame for this delay is largely on
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the judiciary itself. The Chief Justice of India and the Chief Justices of the High Courts
must take immediate steps to curb this unconscionable delay in appointments.30
Anybody who sits and watches the proceedings in the Courts will not fail to note that
the level of competence of the Judges of the subordinate Courts at different levels is
not adequate, possibly because the Judges' training does not give emphasis on
professional skills and case/Court management. If the Judge is not competent, he/she
takes longer time to understand the facts and the law and to decide the case. This is
another reason which has contributed to enormous delay and huge pendency of
cases.31
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J. Advocates and Public Prosecutors
Lawyers' strikes are one of the main hindrances in speedier criminal trials. A Five
Judges Constitution bench of Hon'ble Supreme Court has declared that the lawyers
have no right to strike or to give calls for boycott, not even of a token strike.32 Seeking
adjournments on one pretext or another, boycott of Courts, corrupting the Court staff,
inducing witnesses to turn hostile etc. are practices indulged in by some lawyers with
relative impunity. It has already brought the system to disrepute.33 Advocates file
vexatious34 applications unnecessarily for the sole object to delay the matter. Under
the rule of law, litigant public cannot be stopped from approaching the Courts for
seeking judicial remedy as the judicial system gives an expectation to the general
public that they can redress their grievances before the Judiciary.35 The Hon'ble
Supreme Court has held that, at any rate, no Advocate can ask the Court to avoid a
case on the ground that he does not
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want to appear in that Court. It has further said that it is the solemn duty of every
Court to proceed with the judicial business during Court hours and no Court should
yield to pressure tactics or boycott calls or any kind of browbeating.36
The Hon'ble Supreme Court further in R.D. Saxena37 Court observed that “in our
Country, admittedly, a social duty is cast upon the legal profession to show the people
beacon light by their conduct and actions. The poor, uneducated and exploited mass of
the people need a helping hand from the legal profession, admittedly, acknowledged
as the most respectable profession. No effort should be made or allowed to be made
by which a litigant could be deprived of his rights, statutory as well as constitutional,
by an advocate only on account of the exalted position conferred upon him under the
judicial system prevalent in the country.” Lawyers are most learned and an important
segment of the legal system and the civilized society. The development of new
professional ethics by reforming the bar may also help in eradicating the menace of
delay in criminal trials.
IV. THE RIGHT TO SPEEDY JUSTICE IS A FUNDAMENTAL RIGHT: IS IT NOT IMAGINARY IN
TRUE SENSE?
The Hon'ble Supreme Court in Hussainara Khatoon (1)38 held that speedy trial is the
essence of criminal justice, and therefore, delay in trial by itself constitutes denial of
justice. Though speedy trial is not specifically enumerated as a fundamental right, it is
implicit within the broad sweep and content of Article 21.39 Speedy trial which means
reasonably expeditious trial is an integral part of the fundamental right to life and
liberty enshrined in Article 21. In Maneka Gandhi case40 the Supreme Court held that,
“Article 21 confers fundamental right on every person not to be deprived of his life or
liberty except in accordance with the procedure prescribed by law and it is not enough
to constitute compliance with the requirement of that Article that some semblance of a
procedure
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should be prescribed by law, but that the procedure should be “reasonable, fair and
just.” If a person is deprived of his liberty under a procedure which is not “reasonable,
fair or just”, such deprivation would be violative of his fundamental right under Article
21. Applying the ratio laid down by the Supreme Court in Maneka Gandhi, the Court in
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Hussainara Khatoon (1)41 , held that the procedure which keeps large number of people
behind bars without a trial for long cannot possibly be regarded as “reasonable, just or
fair” so as to be in conformity with the requirement of Article 21. Following the ratio,
in a plethora of subsequent cases, this right has been reaffirmed.
Further, the Supreme Court in P. Ramachandra Rao v. State of Karnataka42 held

that “it is the constitutional obligation of the state to dispense speedy justice, more so
in the field of criminal law, and paucity of funds or resources is no defence to denial of
right to justice emanating from Articles 21, 19 and 14 and the preamble of the
Constitution as also from the Directive principles of State Policy. It is high time that
the Union of India and the various States realize their Constitutional obligation and do
something concrete in the direction of strengthening the justice delivery system. We
need to remind all concerned of what was said by this Court in Hussainara Khatoon (7)
43
i.e., the State cannot be permitted to deny the constitutional right of speedy trial to
the accused on the ground that the State has no adequate financial resources to incur
the necessary expenditure needed for improving the administrative and judicial
apparatus with a view to ensuring speedy trial.”
V. JUDICIAL MECHANISM IDENTIFIED FOR THE ENFORCEMENT OF THE RIGHT
The Hon'ble Supreme Court has held that the Criminal Procedure Code, under
Sections 167, 258, 309, 311 and 468 provides to expedite the disposal of cases and to
enable timely delivery of justice. Section 167 Cr.P.C provides a statutory time limit to
complete an investigation44 and further provides
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that a failure to complete investigation within the statutory time frame shall lead to
release of the accused in custody on bail.45 The Criminal Procedure (Amendment) Act,
2005, introduced Section 436A, which stipulates that the maximum period for which
under trial prisoners can be detained is half of the maximum period of imprisonment
specified for that offence under that law excluding offences for which the punishment
of death has been specified as one of the punishments under that law. Hence, by
invoking these provisions, right to speedy justice can be protected.
The seven Judges constitutional bench has answered maximum questions arising
out of enforcement of concept of speedy justice in Abdul Rehman Antulay46 and has
held that ‘it is neither advisable nor feasible to draw or prescribe an outer time-limit
for conclusion of the criminal proceedings.
VI. JUDICIAL GUIDELINES VS. JUDICIAL LEGISLATION?
The proponents of right to speedy trial in Common Cause (1)47 strongly prayed for
prescribing time-limits beyond which no criminal proceeding should be allowed to go
on. Advocating that proposition, they argued that, unless this was done, Maneka
Gandhi case and Hussainara Khatoon (1) exposition of Article 21 would remain a mere
illusion and a platitude. For the right to speedy trial flowing from Article 21 to be
meaningful, enforceable and effective, it ought to be accompanied by prescribing an
outer limit beyond which continuance of the proceedings would be termed as a
violative of Article 21. This was resisted by the opponents, submitting that the right to
speedy trial was an amorphous one, something less than other fundamental rights
guaranteed by the Constitution.
Accepting the arguments of the petitioners, a two-Judge Bench of the Court issued
two sets of directions, one, regarding bail, and the other, regarding quashing of trial.
Depending on the quantum of imprisonment provided for several offences under the
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Indian Penal Code and the period
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of time which the accused have already spent in jail, the under trial accused confined
in jails were directed to be released on bail or on personal bond subject to such
conditions as the Court may deem fit in the light of bail provisions enshrined under the
law of the land. The other set of directions included -the trial in pending cases to be
terminated and the accused to be discharged or acquitted depending on the nature of
offence by reference to (i) the maximum sentence inflictable-whether fine only or
imprisonment, and if imprisonment, then the maximum set out in the law, and (ii) the
period for which the case has remained pending in the criminal Court. A perusal of the
directions made by the Division Bench shows that the cases having been divided into
two categories: (i) traffic offences, and (ii) cases under IPC or any other law for the
time being in force. The Court directed the trial Courts to close such cases on the
occurrence of following event and the period of delay:
Category (i): Traffic Offences- The Court directed the cases to be closed and the
accused to be discharged on lapse of more than two years on account of non-serving
of summons to the accused or for any other reason whatsoever.
Category (ii): Cases under Indian Penal Code or any other law for the time
being in forc e-The Court directed that in the following sub-categories if the trial has
not commenced and the period noted against each sub-category has elapsed then the
case shall be closed and the accused shall be discharged or acquitted:
Nature of the Cases Period of Delay i.e. If the Trial is Not
Commenced For
Cases compoundable with the More than two years
permission of the Court
Cases pertaining to offences which are More than two years
non-cognizable and bailable
Cases in connection with offences More than one year
punishable with fine only and are not of
recurring nature
Cases punishable with imprisonment up More than one year
to one year, with or without fine
Cases pertaining to offences punishable More than two years
with imprisonment up to three years
with or without fine
The period of pendency was directed to be calculated from the date the accused is
summoned to appear before the Court. The Court also specified that all the directions
were made applicable not only to the cases
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pending on the day but also to cases which may be instituted thereafter. A public-
spirited advocate addressed a letter petition to the Court inviting its attention to
certain consequences flowing from the directions made by this Court in Common
Cause (1) and which were likely to cause injustice to the serious detriment of the
society and could result in encouraging dilatory tactics adopted by the accused. In
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consequences of this, the Court gave directions which had the effect of
clarifying/modifying the directions in Common Cause (1) and passed an order on 28-
11-1996 and it was cited as Common Cause (2) case.48
The Court clarified that the order shall not apply to cases wherein such pendency of
the criminal proceedings is wholly or partly attributable to the dilatory tactics adopted
by the concerned accused or on account of any other action of the accused which
results in prolonging the trial. The phrase ‘pendency of trials’ is employed as follows:
(i) in cases of trials before Sessions Court, the trials shall be treated to have
commenced when charges are framed (ii) in cases of trials of warrant cases by
magistrates, if the cases are instituted upon police reports, the trials shall be treated
to have commenced when charges are framed. The Court further clarified and
restricted the scope of applicability only to certain category of cases and which are (a)
Matrimonial offence under Indian Penal Code including Section 498-A or under any
other law for the time being in force, (b) Offence under the Negotiable Instruments
Act including offence under Section 138 thereof; (c) Offence relating to criminal
misappropriation of property of the complainant as well as offence relating to criminal
breach of trust under Indian Penal Code or under any other law for the time being in
force; (d) Offence under Section 304-A of the Indian Penal Code or any offence
pertaining to rash and negligent acts which are made punishable under any other law
for the time being in force; (e) Offence affecting the public health, safety,
convenience, decency and morals as listed in Chapter IV of the Indian Penal Code or
such offence under any other law for the time being in force. The court also directed to
send the copies of the order to all the High Courts, Chief Secretaries of all the States
and the concerned administrative Heads of all the Union Territories. Registrars of the
High
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Courts were requested by the Office to communicate copies of the clarificatory order to
all the criminal Courts.
VII. RIGHT TO SPEEDY JUSTICE: SHOULD IT BE EXTENDABLE TO OTHER THAN IPC

OFFENCES?
After the guidelines laid down by the Hon'ble Supreme Court in Common Cause (1)
and its clarificatory order in Common Cause (2), the question arose -whether the right
to speedy justice can be extended to the cases other than those made punishable
under Indian Penal code, e.g., offences registered under Section 5(2) read with
Section 5(1)(e) of the Prevention of Corruption Act 1947. In this regards, a plea was
raised before the Court in Raj Deo Sharma (1) case.49
The petitioner filed a writ petition in the High Court of Patna on 5.12.1995 praying
inter alia, for quashing the entire prosecution including the F.I.R. on the ground that
more than 13 years had elapsed since the institution of the F.I.R. and thus the right of
the petitioner to speedy trial was violated. The petition was dismissed by the High
Court on the ground that the delay was due to the fact that there was only one Special
Court of the C.B.I. functioning and a large number of cases were pending before it.
The petitioner refuted the allegations in counter-affidavit and reiterated that the delay
was entirely due to the fault of the prosecution which has prejudiced his fundamental
right to speedy trial. It was stated therein that the prosecution failed to produce the
documents on 48 occasions and failed to produce witnesses on 46 occasions.
Thereafter, 36 adjournments were given to the prosecution for examination of
remaining witnesses. Finally, after deep consideration of the judgment of Abdul
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Rehman Antulay and Hussainara Khatoon, the Court laid down further following
directions.
(a) In cases where the trial is for an offence punishable with imprisonment for a
period not exceeding seven years, whether the accused is in jail or not, the Court
shall close the prosecution evidence on completion of a period of two years from
the date of recording the plea of the accused on the charges framed whether the
prosecution has examined all the witnesses or not, within the said period and
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the Court can proceed to the next step provided by law for the trial of the case.
(b) In such cases as mentioned above, if the accused has been in jail for a period of
not less than one half of the maximum period of punishment prescribed for the
offence, the trial Court shall release the accused on bail forthwith on such
conditions as it deems fit
(c) If the offence under trial is punishable with imprisonment for a period exceeding
7 years, whether the accused is in jail or not, the Court shall close the
prosecution evidence on completion of three years from the date of recording the
plea of the accused on the charge framed, whether the prosecution has examined
all the witnesses or not within the said period and the Court can proceed to the
next step provided by law for the trial of the case, unless for very exceptional
reasons to be recorded and in the interest of justice the Court considers it
necessary to grant further time to the prosecution to adduce evidence beyond
the aforesaid time limit.
(d) But if the inability for completing the prosecution within the aforesaid period is
attributable to the conduct of the accused in protracting the trial, no Court is
obliged to close the prosecution evidence within the aforesaid period in any of
the cases covered by clauses (i) to (iii).
(e) Where the trial has been stayed by orders of Court or by operation of law such
time during which the stay was in force shall be excluded from the aforesaid
period for closing prosecution evidence. The above directions will be in addition
to and without prejudice to the directions issued by this Court in Common Cause
(1) v. Union of India as modified by the same bench through the order reported
in Common Cause (2) v. Union of India.
VIII. JUDICIARY CANNOT MAKE LAW FOR THE ENFORCEMENT OF SPEEDY JUSTICE
In Raj Deo Sharma (2)50 the Additional Solicitor General appearing for the petitioner
expressly stated that he was only seeking a clarification of the
Page: 71
judgment in the main appeal. He argued that the subordinate Courts were under a
wrong impression that the directions contained in the said judgment gave no option to
them but to close the evidence of the prosecution whenever the periods mentioned in
the guidelines were completed.
After deep consideration of the ratio in the judgment of Abdul Rehman Antulay,
case and judgment in the main appeal in the present case, the Court said that, it has
not fixed any time limit for the conclusion of trial neither in the Antulay case nor in the
main judgment of the case. As such, the Court has only laid down guidelines for
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closing the prosecution in certain circumstances. There is a difference between fixing a
time limit for the disposal of a trial and fixing time limit for the prosecution to
complete its evidence. A perusal of the guidelines contained in the main judgment
would themselves show that there is no hard and fast rule applicable to every case,
irrespective of facts and circumstances thereof. If the delay is not due to any fault of
the prosecution, it is open to the prosecution to place the relevant facts before the
Court and seek further time for producing its evidence.
The Court further held that as pointed out in Antulay case, it has to balance and
weigh several relevant factors and determine in each case whether the right to speedy
trial has been denied in that case. It is only to enable the Subordinate Courts to apply
the right balancing test or balancing process that the guidelines have been given in
the judgment in the main appeal. The judgment has also taken care to mention that
the directions given therein are only to supplement the propositions laid down by the
Constitution Bench in Antulay case and also in addition to and without prejudice to the
directions issued by this Court in the Common Cause case. With the above
observations, the Court disposed the petition saying that there is no requirement to
give any clarification or direction.
The Hon'ble Supreme Court in P. Ramachandra Rao case51 held that the Right to
Speedy Trail is a fundamental Right but the judiciary cannot make a law for its
enforcement and merely can declare the law and hence, overruled the judicial
legislations laid down in Common Cause (1) and (2) and Raj Deo Sharma (1) and (2)
cases.
Page: 72
After the final proposition of Hon'ble Supreme Court on the Right to Speedy Justice
in the above case, most recently, in Hussain v. Union of India52 , the issue has again
come up for discussion on the enforcement of speedy justice in the context of granting
bail to the accused. In this case, the appellants have been in the custody since 4th
August, 2013 on the allegation of having committed offence under Section 21(c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). Their bail
application, pending trial, has been dismissed. Another appellant was in custody since
11th January, 2009. He has been convicted by the trial court under Section 302 IPC
and sentenced to undergo life imprisonment. His bail application has been dismissed
by the High Court pending appeal.
The Court referred to Section 436A Cr.P.C, which provides for grant of bail when a
person has undergone detention upto one half of maximum prescribed imprisonment.
It was observed that the said provision applies only during trial and the first appellant
is not covered by the said provision. With regard to grant of bail, pending appeal,
reference was made to the earlier decisions of Court in Akhtari Bi v. State of M.P.53 and
Surinder Singh v. State of Punjab54 , which provide that if the appeal is not heard for 5
years, excluding the delay for which the accused himself is responsible, bail should
normally be granted. With the above observation, the Hon'ble Supreme Court issued
following directions:—
(i) The High Courts may issue directions to subordinate courts that -(a) Bail
applications be disposed of normally within one week; (b) Magisterial trials,
where accused are in custody, be normally concluded within six months and
sessions trials, where accused are in custody, be normally concluded within two
years; (c) Efforts be made to dispose of all cases which are five years old by the
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-
end of the year; (d) As a supplement to Section 436A, but consistent with the
spirit thereof, if an undertrial has completed period of custody in excess of the
sentence likely to be awarded if conviction is recorded, such undertrial must be
released on personal bond. Such an assessment must be made by the concerned
trial courts from time to time; (e)
Page: 73
The above timelines may be the touchstone for assessment of judicial performance in
annual confidential reports.
(ii) The High Courts are requested to ensure that bail applications filed before them
are decided as far as possible within one month and criminal appeals where
accused are in custody for more than five years are concluded at the earliest;
(iii) The High Courts may prepare, issue and monitor appropriate action plans for
the subordinate courts;
(iv) The High Courts may monitor steps for speedy investigation and trials on
administrative and judicial side from time to time;
(v) The High Courts may take such stringent measures to have appropriate
monitoring mechanism in place on the administrative side as well as on the
judicial side for speeding up disposal of cases of undertrials pending in
subordinate courts and appeals pending in the High Courts.
IX. CONCLUSION
The judicial reflections highlighted by the Hon'ble Supreme Court on the reasons for
the delay and guidelines for the enforcement of speedy justice are treated by the trial
Courts as mere dictas or remain to be mere guidelines, lacking legal sanctity. Although
certain principles are in the nature of ratio, but they are difficult to implement due to
absence of a codified law. The recognition of fundamental rights by the Courts while
interpreting certain articles of the Constitution of India has not yielded considerable
amount of significance in its practical implementation as there is no law enacted or no
amendments introduced in existing law for the enforcement of these rights. The fact
remains that the Governments are not very much proactive to give effect to the rights
recogninsed by the Judiciary. Hence, these rights have become imaginary & illusory in
practical significance. The right to speedy justice is one of the many other rights which
have unfortunately fallen in the category of imaginary rights. Unless there is any
specific enactment for the enforcement of right to speedy justice, it shall continue to
be imaginary and can be useful only for academic discussion. There is a need to
regulate the trial proceedings for preventing delay
Page: 74
or, in other words, for the enforcement of the right to speedy justice. The idea of a law
(Right to Speedy Justice Act) can be materialized through the ratios and dictas of
judicial reflections laid down by the Supreme Court. The ball is in the court of
Government and it's high time that the government brings a comprehensive
legislation addressing the problems of delay in the subordinate Courts.
———
* JAGADEESH C HANDRA T.G. Assistant Professor of Law, Gujarat National Law University, Gandhinagar, Email id:
jchandra@gnlu.ac.in
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1
Address by Dr. A.P.J. Abdul Kalam, Hona'ble President of India at the inauguration of the Golden Jubilee
Celebrations of the High Court of Karnataka at Bangalore on 7th April, 2006, available at
http://pib.nic.in/newsite/erelease.aspx?relid=17217 accessed on 15th August, 2017.
2 Ibid.
3 Inaugural address by Hon'ble Mr. K.G. Balakrishnan, Chief Justice of India in International Conference of Jurists
on ‘Judicial Reforms’ from June 13-14, 2009, London; See also, Marc Galanter and Jayanth Krishnan, “Bread for
the poor: Access to Justice and the rights of the needy in India”, 55 Hastings Law Journal, March 2004, pp. 789-
833.
4
Justice P. Sathasivam, “Strengthening The Judiciary Towards Reducing Pendency And Delays”, JTRI Journal,
Special Feature Annual Report, 2011-2012, Judicial Training & Research Institute, Uttar Pradesh, p. 14.
5Law commission of India, “Arrears and Backlog: Creating Additional Judicial (wo)manpower”, Report No. 245,
Ministry of Law and Justice, Government of India, July, 2014 p. 3.
6 (2011) 8 SCC 249.
7
Justice Sobhag Mal Jain Memorial Lecture Delivered By Hon'ble Shri Y.K. Sabharwal, Chief Justice of India on
Delayed Justice, Tuesday, the 25th July, 2006.
8 Swaran Singh v. State of Punjab, (2000) 5 SCC 668 : AIR 2000 SC 2017.
9 Pricewaterhouse Coopers (P) Ltd. v. C. Anthony Louis, 2007 All MR (Cri) 1633, para 66.
10 Report of the Committee on “Reforms of Criminal Justice System, Government of India”, Ministry of Home
Affairs, Vol-I, March, 2003 para. 19.6.4.
11 Report of the “Committee on Draft National Policy on Criminal Justice”, Ministry of Home Affairs, Government
of India, July, 2007, para. 5.6.
12 Law Commission of India, “Expeditious Investigation and Trial of Criminal Cases against Influential Public
Personalities”, Report No.239, Government of India, March 2012, p. 7-8 para. 2.2.
13 Ibid.
14
Section 62. Summons how served.
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may
make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or
tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt
therefor on the back of the other duplicate.
15 Supra n 12 para 10.16.
16 Ibid, n 12, para 11.7.1.
17 Ranbir v. State of Punjab, (1973) 2 SCC 444 : AIR 1973 SC 1409.

18
Supra n 12 para 1.18.
19 Ibid, n 12 para 9.15.1.
20 Ibid, para 9.14.1.
21 Supra n 11 p.14 para 2.4.
22 Ibid, para 9.14.3.
23
Ibid, para 9.13.1.
24 Ibid
25 Supra n 12 para 9.3.1.
26Report of the Law Commission of India, Report No.213, “Fast Track Magisterial Courts for Dishonored Cheque
Case”, Ministry of Home Affairs, Government of India, Nov, 2008 para. 3.2.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
27 Supra n 12 para. 9.10.1.
28Report of the Law Commission of India, Report No. 230, “Reforms in the Judiciary - Some Suggestions”,
Ministry of Home Affairs, Government of India, Aug, 2009, para. 1.15.
29 Ibid, para. 12.2.

30 Ibid, para. 9.3.
31 Ibid, para. 9.5.2.
32 Harish Uppal v. Union of India, (2003) 2 SCC 45 : AIR 2003 SC 739.

33 Supra n, 12 para. 6.8.
34 In Western Australia, sec. 3 of the Vexatious Proceedings (Prevention) Act, 2002, defines vexatious
proceedings as those “(a) which are an abuse of the process of a Court or tribunal; (b) instituted to harass or
annoy, to cause delay or detriment, or for any other wrongful purpose; (c) instituted or pursued without
reasonable cause; or (d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve
any other wrongful purpose”, see also, Supra n 25 p. 78.
35Lecture delivered by Justice Sunil Kumar Singh, Addl. Distt. & Sessions Judge (FTC), Ghaziabad (U.P.) on Free
Legal Aid & Speedy Criminal Justice System, JTRI Journal, Special Feature Annual Report, 2011-2012, Judicial
Training & Research Institute, U.P. p. 112.
36
Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37.
37 R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264 : AIR 2000 SC 2912.
38
Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81, para 179.
39
Article-21 Protection of life and personal liberty-No person shall be deprived of his life or personal liberty
except according to procedure established by law.
40 Maneka Gandhi v. Union of India, (1978) 1 SCC 248, para 665.
41 (1980) 1 SCC 81.
42
(2002) 4 SCC 578.
43 Hussainara Khatoon (7) v. Home Secy., (1995) 5 SCC 326.
44
Section-167 imposes obligation on the part of investigation agencies to complete the investigation within the
period prescribed under this section. And the said provision states Procedure when investigation cannot be
completed in twenty-four hours for different categories of offences.
45
Research paper, Justice Without Delay: Recommendations for Legal and Institutional Reforms in the Indian
Courts, Research Paper No. 4, Prepared by Center on Public Law and Jurisprudence, Delhi: O.P. Jindal Global
University, 2011, p. 5.
46
Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
47 Common Cause (1) v. Union of India, (1996) 4 SCC 33.

48 Common Cause (2) v. Union of India, (1996) 6 SCC 775.
49 Raj Deo Sharma (1) v. State of Bihar, (1998) 7 SCC 507.
50 Raj Deo Sharma (2) v. State of Bihar, (1999) 7 SCC 604.
51
P. Ramachandra Rao v. State of Karnataka, (2012) 9 SCC 430.
52 (2017) 5 SCC 702.
53 (2001) 4 SCC 355.

54 (2005) 7 SCC 387.
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notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
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Page 1 Thursday, November 05, 2020

(2017) 7 GJLDP (October) 53

Delays in Subordinate Judiciary as an Impediment in Materializing the Right to

DELAYS IN SUBORDINATE JUDICIARY AS AN IMPEDIMENT IN MATERIALIZING THE RIGHT

II. WHAT IS CALLED AS DELAY, PENDENCY, ARREARS AND BACKLOG OF CASES?

III. JUDICIAL REFLECTIONS ON CAUSES FOR THE DELAY

A. Delay in Police Investigation

B. Delay in Services of Summons/Warrants

C. Delay in Examination of Witnesses

E. Non Implementation of Pre-Trial Hearing under the Code of Criminal

G. Improper Court Management and Corruption

I. Delay in Appointment of Judges and Appointing Incompetent Judges

Further, the Supreme Court in P. Ramachandra Rao v. State of Karnataka42 held

VII. RIGHT TO SPEEDY JUSTICE: SHOULD IT BE EXTENDABLE TO OTHER THAN IPC

17 Ranbir v. State of Punjab, (1973) 2 SCC 444 : AIR 1973 SC 1409.

29 Ibid, para. 12.2.

32 Harish Uppal v. Union of India, (2003) 2 SCC 45 : AIR 2003 SC 739.

47 Common Cause (1) v. Union of India, (1996) 4 SCC 33.

53 (2001) 4 SCC 355.

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