Chapter 1

INTRODUCTION
1.1. Overview of the Problem

Law is the means and justice the end and, therefore the legal process is the dialectical

infrastructure of the right to justice. Our vision of justice fulfils itself only through the

judicial process which is the instrumentality whereby justice, in its trinity of facets-

social, economic and political is actualized.

The constitution of India in its preamble very clearly enumerates that it intends to

secure for all its citizens JUSTICE, social, economic and political. This is the basic

feature and vision of the constitution. Now since preamble has been held to be part of

the Constitution and also the objectives of preamble as the basic feature of the

constitution by the apex court it becomes duty of the state to secure a social order in

which the legal system of the country promotes justice on the basis of equality and

also ensuring speedy and timely justice to all citizens irrespective of their status in

society.

The dictum JUSTICE DELAYED IS JUSTICE DENIED postulates that an

unreasonable delay in the administration of justice constitutes unconscionable denial

of justice. The mounting arrears in the trial and appellate courts coupled with

increased institution of court cases on account of awareness of rights on the part of

citizens, enactment of numerous laws creating new rights and obligations, industrial

development in the country, increased trade and commerce and legislative and

administrative measures touching the lives of citizens at all levels, have assumed

serious proportions. Life and liberty of a citizen guaranteed under Article 21 includes

life with dignity and liberty with dignity. Liberty must mean freedom from

humiliation and indignities at the hands of the authorities to whom the custody of the

person may pass temporarily or otherwise, under the law of the land. Speedy trial is in

the public interest. Courts should not examine cases in a piecemeal manner. Once the

1
 Chapter 1

trial commences, except for a very pressing reason which makes an adjournment

inevitable, proceed de die in Diem until the trial is concluded.

In present time, the biggest challenge which the Indian legal system is facing is the

ever-mounting arrear of cases right from lower courts to Supreme Court and that is

inclusive of both civil and criminal cases. In criminal cases, there are provisions in the

constitution like Article 21 which contain within its domain the RIGHT TO SPEEDY

TRIAL as has been observed by the apex court in its various pronouncements that this

right is basic fundamental right of every citizen within the ambit of Right to Life

contained in Article 21 of the Constitution of India. But in spite of such importance

given to this fundamental right the factual position in the country is quiet contrary,

there are thousands of under trial prisoners languishing in jails throughout India and

in many cases the trials have even not started for years.

According to statistics as reported in Prison Statistics India-2013 there are 278503

under trial prisoners in India. In particular, there are 19,331under trial prisoners in

Maharashtra; this is the plight when Bombay High Court has constituted a special task

force for ensuring speedy trial, situation in rest of the country is still worse.

The right to speedy justice is not a fact or fiction but a “Constitutional reality” and it

has to be given its due respect. The courts and the legislature have already accepted it

as one of the mediums of reducing the increasing workloads on the courts. The right

to a speedy trial, and its resulting impact on both the defendant and society as a

whole, makes this Sixth Amendment guarantee a crucial portion of the Bill of Rights

and another important part of our legal heritage. Repeated delays and continuances in

the criminal justice process prevent victims from ever reaching emotional, physical,

and financial closure to the trauma suffered as a result of the crimes perpetrated

against them. Such delays in prosecution can also limit the ability of victims to

receive justice when their memories, or those of other witnesses, fade with the

passage of time or when the victim’s health deteriorates. The Hon'ble Apex Court on
2
 Chapter 1

several occasions has expressed its concern in respect of delay caused in Courts and

has also gone to the extent of saying that speedy trial is not only the right of the

accused but of the victims of the crime also.

With the increase in rate of pending cases and declination of pronouncement of

justice, society now considers Justice delayed is Justice denied. The judiciary day by

day, due to its delayed process losing faith of people to whom it is obliged to provide

justice. Supreme Court by its decision confirmed that the speedy trial is deemed as

fundamental right included in Article 21 of the Constitution of India. In spite of this,

the condition is static and unchanged. Many Committees and Boards set up by the

governments from time to time had come up with the approach of reformations and

solutions of the rendering justice effectively. However, the implementation of these

recommendations has not been considered and yet to be put in practice.

The whole idea and purpose of justice is vitiated when it cannot be implemented

effectively and timely in spite of the fact that it is a Constitutional obligation of the

state to provide cheap and effective justice to the people. The Constitution has clearly

mentioned in the preamble about the importance of speedy, economic and effective

delivery of justice, it has imposed obligation upon state by way of incorporating

provision relating to speedy justice in part IV and the apex court by way of

expanding the horizon and ambit of Article 21 has included speedy trial within the

ambit of fundamental rights but in spite of all these efforts and also and other

statutory and procedural laws which have adequate provisions relating to speedy trial

the courts in India are highly congested and unable to deliver timely justice to people.

According to the status report of Supreme Court given on its website there are around

242308431 cases pending in lower courts, about 4011965 cases in High Courts2 and

1
As on 29.5.2017, available at: http://njdg.ecourts.gov.in/njdg_public/main.php (Retrieved on May,
2017)
2
As on 30-09-2016, available at: http://sci.nic.in/courtnews/2016_issue_3.pdf (Retrieved on March,
2017)
3
 Chapter 1

around 60751 cases3 are pending in Supreme Court itself. There is no one factor

which is solely responsible for these arrears of cases. For the reformation in the

present practicing judicial system, there are number of elements which must be

considered.

The Law Commission of India in its various reports has mentioned the plight of courts

in dispensing speedy justice, from time to time legislature by way amendments in the

existing laws has implemented these recommendations and recommendations of other

committees such as Malimath Committee but the problem of arrears has not improved

but with time it is worsening. It is estimation that with this pace infrastructure and

pattern of justice dispensation the judiciary would not be able to clear its docket even

in 300 years. It is indeed very disappointing that despite of all the Constitutional and

statutory provisions which lay down the emphasis on speedy delivery of justice,

various reports of Law Commission and other committees the state is not able to cope

with the arrear of cases and thereby directly infringing the Constitutional right of

people of speedy justice. This research work tries to analyse the concept and

importance of speedy justice, a study of existing legal framework with regard to

speedy justice in India, the causes of huge arrear of cases their implications and

remedy.

1.2 Statement of Problem

‘Justice’ is at the top among the aims and objectives to be achieved by the

Constitution as enshrined in the Preamble. The objective of ‘justice’, social, economic

and political is directly incorporated in Article 38. As observed by Mr. H. M. Seervai,

a renowned constitutional expert, Article 39 amplifies the concept of justice. The

Supreme Court has held that social justice would include ‘legal justice’ which means

that the system of administration of justice must provide cheap, expeditious and

3
As on 1.5.2017, available at: http://supremecourtofindia.nic.in/p_stat/pm31122016.pdf (Retrieved on
May, 2017)
4
 Chapter 1

effective instrument for realization of justice by all sections of the people irrespective

of their social or Economic position or their financial resources.

Speedy justice has always been the sine qua non of criminal jurisprudence. It is an

important safeguard to prevent undue and oppressive incarceration. It minimizes

anxiety and concern accompanying the accusation. It also limits the possibility

impairing the possibility impairing the ability of an accused to defend himself. There

also remains a keen societal interest in providing speedy justice. The right of speedy

justice has been actuated many times in recent past. The courts also in series of

decisions have opened new vistas of fundamental rights.

Speedy justice is an essential component in civil matters too because in civil action

also rights of parties are impaired and so they take recourse to court of laws with the

object to get redressal of their grievances as early as possible. Civil litigation

comprises of everything other than criminal visually property matters, service matters,

revenue matters, commercial matters etc. which may be important issues for litigants

in their life and so providing speedy justice is essential duty of the state particularly in

a welfare nation. It is said that law is the means and justice is the end but if justice is

not speedy and effective then it loses the essence and vitiates the very purpose of law.

The relevance of providing timely and speedy justice has been acknowledged by

international bodies as well as various forms of governments throughout the world.

The Universal declaration of Human Rights (UDHR), International Covenant on Civil

and Political Rights (ICCPR), The European Convention on Human Rights (ECHR)

contain specific provisions regarding speedy trial and speedy justice which is now an

essential ingredient of human rights jurisprudence. The state is considered as guardian

of its citizens and so it becomes duty of the state to protect right of citizens from

being infringed and if there is any excessive and undue delay in providing justice to

citizens it is clear violation of their right to speedy justice. Man is the most

accomplished of all creatures of our universe. He is so immeasurably admirable in his

5
 Chapter 1

faculties of thought, action and reason that Shakespeare declares him, as ‘the beauty

of the world’. It is perhaps due to this celebrated glory of man that human community,

right from the early days of civilization, has consistently held certain basic values

which are inviolable under any circumstance. These basic values of life and personal

liberty have come to be termed differently as civil liberties and human rights. History

is replete with instances of successful and relentless struggles whenever persons in

authority whose primary duty is considered the protection of human rights infringed

upon these basic rights of human beings. These persons in authority often form the

core of the criminal justice system in a country, unmistakably composed of the Police,

Judiciary and Correctional Services. It is often upon them that the responsibility of

protection of these basic human rights rests and when they end up violating these

basic rights they are in violation of the benchmark of human rights - the Universal

Declaration of Human Rights (UDHR).

The whole idea or rather the basis of speedy justice is contained in one single dictum

and that is justice delayed is justice denied. Unjust and prolonged delay defeats the

very purpose of justice. The best example from Indian context of denial of justice on

part of judiciary and machinery of the state is Bhopal gas leak tragedy of December

1984 in which because of leakage of Methyl Isocyanide from the factory of Union

Carbide Corporation more than 20000 thousand people lost their lives and several

lakh people are still suffering from the after effects of that disaster but till date no

adequate compensation has been provided to the families of the deceased people nor

to the effected people. The actions of the successive governments have been very

callous and the result is the culprits of Bhopal tragedy have not been brought to books

till date. The plight of Bhopal victims clearly demonstrates the blatant violation of the

philosophy of the preamble of the constitution which endeavours to provide justice

social, economic and political to all citizens of India.

6
 Chapter 1

Access to justice including speedy justice is one of the constitutionally recognized

human and fundamental rights. The need for a pragmatic and scientific approach to

reforms aimed at making this right a reality, in conditions typical to India, has become

gradually critical in the recent years.

1.3 Scope of Study and Limitation

Speedy Justice demands speedy and reasonably expeditious trial. It secures the right

to live with basic human dignity and right to individual liberty. However, expeditious

justice is very rare, as litigation has assumed alarming proportion with the explosion

of population, expanding of business activities, sagging moral values, culture of

demanding only rights and tardy disposal of cases by Courts, the arrears are mounting

up day by day. This right of expeditious or speedy trial is the essence of justice and

delay in the trial causes denial of justice to the accused.

The roots of speedy trial can be traced in England in twelfth century in the landmark

document of English Law, Magna Carta. It was decided that justice must be provided

to robbers, murderers and thieves ‘speedily enough’. It is designed on two reasons:

firstly, to prevent defendants from languishing in jails for indefinite period before

trial. Secondly, to minimize the time in which a defendant’s life is disrupted and

burdened.

Every person who is arrested or detained shall be entitled to trial within reasonable

time or to release during pending trial. Every person is entitled to 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.

Speedy Trial and Constitution of India

The right to speedy trial is the pith and marrow of India Constitution, although the

right to have ‘expeditious trial’ or ‘speedy trial’ is not specifically mentioned as a

Fundamental Right in Constitution of India, 1950. It provides only about procedure

7
 Chapter 1

established by law. Article 21 is said to imply the right to speedy trial and it is the

outcome of judicial activism coupled with judicial interpretation. Article 21 of

Constitution of India, 1950 provides that ‘No person shall be deprived of his life or

personal liberty except according to procedure established by law’. Though it is not

expressly conferred but has been impliedly declared that the Speedy Trial requires a

‘reasonable, fair and just procedure’ and it is the constitutional obligation of the state

to ensure speedy trial to the accused. It is the most precious human right and forms

the ‘arc’ for all other rights.4

In Maneka Gandhi v. Union of India5, the Hon’ble Supreme Court observed that

Speedy Trial is the essence of criminal justice and there can be no doubt that delay in

trial by itself constitutes denial of justice. Later in Hussainara Khatton (II) v. Home

Secretary, Bihar6, the Hon’ble Supreme Court ordered the release of such under trial

prisoners against whom charge sheet has not been filed within the time limit provided

in section 468 of Criminal Procedure Code, 1973. The Court clearly mentioned that

the State cannot avoid its constitutional obligation to provide speedy trial to accused

by pleading financial or administrative inability. It is also the constitutional obligation

of this court as a guardian of fundamental rights of the people to enforce the

fundamental rights of the accused to speedy trial by issuing necessary directions to the

State.

The Hon’ble Supreme Court reaffirmed the earlier decisions and held that any

accused who is denied right of speedy trial is entitled to approach this court for the

purpose of enforcing such right. In Rajdeo Sharma II v. State of Bihar7, the court

ordered to close the prosecution cases if the trial had delayed beyond a certain period

in specified cases involving serious offences. Hon’ble Supreme Court in Sheela

4
Rajan Dargan, “Does Delay Defeat Justice?” 3 SCJ 34 (1999).
5
AIR 1978 SC 597
6
AIR 1970 SC 1369 at 1376-77
7
(1998) 7 SCC 507
8
 Chapter 1

Barse v. Union of India8, a Division Bench comprising Justice Bhagwati and Justice

R.N. Mishra, reaffirmed that right to Speedy Trial is a fundamental right implicit in

Article 21 of the Indian Constitution and observed that the consequence of violation

of fundamental right to speedy trial would be that the prosecution itself would be

liable to be quashed on the ground that is a breach of fundamental right.

In Babu v. Raghunath9, Hon’ble Supreme Court observed that social justice would

include ‘legal justice’ which means that system of administration of justice which

must provide expeditious and effective instrument for realization of justice to all

sections of people irrespective of their social, economic position or their financial

resources.

Later in Motilal Saraf v. State of Jammu and Kashmir10, Hon’ble Supreme Court

dismissed a fresh complaint which is made after 26 years of an earlier complaint and

explained the meaning and relevance of speedy trial right as:

The concept of speedy trial is read into Article 21 as an essential part of

the fundamental right to life and liberty guaranteed and preserved under

our Constitution. The right to Speedy Trial begins with actual restraint

imposed by arrest and consequent incarceration and continues at all

stages, namely, the stage of investigation, inquiry, trial, appeal and

revision so that any possible prejudice that may result from impressible

and avoidable delay from the time of the commission of the offence till

it consummates into a finality, can be averted.

Role of Judiciary and Speedy Trial

The Hon’ble Supreme Court is very firm in the delay caused in justice. In order to

have expeditious trial, judiciary in its various decisions discussed this principle.

8
AIR 1986 SC 1773
9
AIR 1976 SC 1734
10
(2007) 1 SCC (Cri) 180
9
 Chapter 1

In Veerbhadra v. Ramaswami Niackar11, the Supreme Court refused to send back the

proceedings as five years have already elapsed considering this delay as unjust and

improper. Later in another case the Court refused re-trial after a period of ten years. In

Machander v. State of Hyderabad12, it is incumbent on the Court to see that no guilty

person escapes and it is also their duty to see that justice is not delayed and accused

persons are not indefinitely harassed.

In Nimoon Sangma v. Government of Meghalaya13, Hon’ble Supreme Court observed

the importance of expeditious trial under sections 167, 209 and 309 of Criminal

Procedure Code, 1973 for expeditious disposal of criminal cases including

investigation and trials. However, this right can be refused also, where the accused is

responsible for the delay14.

In Kadra Phadiya v. State of Bihar15, the Supreme Court observed that it is a crying

shame upon our adjudicatory system which keeps men in jail for years on end without

a trial. The court also observed that no one shall be allowed to be confined in jail for

more than a reasonable period of time, which we think cannot and should not exceed

one year for a session trial we fail to understand why our justice system has been

dehumanized that lawyers and judges do not feel a sense of revolt of caging people in

jail for years without trial.

During late 1980, the judicial opinions show divergent trends. In Sheela

Barse v. Union of India16, Hon’ble Supreme Court decided that in cases of juvenile

accused, a time limit of nine months was fixed, where three months are for

investigation and six months for trial for an offence not more than seven years. But it

is not made applicable to adult accused and to be given consideration at a later date.

11
AIR 1958 SC 1032
12
AIR 1955 SC 792
13
AIR 1979 SC 1518
14
Diwan Naubat Rai v. State through Delhi Administration, AIR 1989 SC 542
15
1981 CriLJ 481
16
AIR 1986 SC 1773.
10
 Chapter 1

In Abdul Rehman Antulay v. R.S. Nayak17, learned Justice Jeevan Reddy showed

serious concern towards the consequences of delay in trial of criminal cases and

issued guidelines for making right to speedy trial an effective right but he has refused

to draw or prescribe any outer time limit for conclusion of all criminal proceedings. In

1996, the Supreme Court in Common Cause v. Union of India18, the division bench

gave directions for fixing the maximum time limit for conclusion of trials and

quashing the proceedings pending in criminal courts, this case provided a list where

the time limit will not be applicable. In 1999, Rajdeo Sharma (II) v. State of Bihar19,

the accused was acquitted by the trial court on the basis of time limit fixed earlier.

In 2002, in P. Ramachandra Rao v. State of Karnataka20, the Constitutional Bench

held that Court cannot fix any time limit as a bar beyond which criminal proceedings

or trial cannot continue, thereby entitling the accused to be acquitted on the ground of

delay. Prescription of such limitation period would amount to judicial legislation

which is not permissible. The directions are running counter to Constitutional Bench

decision in A.R. Antulay case21

1.4 Objective of the Study

Speedy justice is one of the most important Constitutional rights which is being

infringed in huge bulk by the legal system in India. Every organ of the state is

showing its concern with regard to arrear of cases but the results are very

disappointing in spite of all the efforts. The Hon’ble Prime Minister, at ‘The

Conference of Chief Ministers and Chief Justices’ held on 16th August 2009,

described the huge arrear and case backlogs as the ‘scourge’ of the Indian Legal

System. Much is said about the problem in conferences, speeches, reports and even

17
AIR 1992 SC1701.
18
(1996) 6 SCC 775.
19
(1999) 7 SCC 604.
20
2002 Cri. L.J. 2547.
21
1988 AIR 1531.
11
 Chapter 1

judicial pronouncements but nothing concrete is done which gives practical results

with regard to speedy justice.

This work starts by tracing out the concept of speedy justice in religious texts,

international laws and legal framework of countries like US and UK and make

analysis that how far right to speedy justice has been held to be important by them and

the basis of having such right. An overview of existing legal framework along with

judicial pronouncements by the apex court in India and their efficiency in tackling the

problem of arrear has been done. The most important part of this research work is

tracing out of the causes of judicial backlogs in India and their implications on society

and people. A detailed introspection has been done of the remedies available to tackle

this problem of arrears and conclusion made after giving some suggestion which may

be useful to reduce this menace of backlog and practical implementation the Right to

Speedy Justice.

The main objective of the study is to examine the legal framework of speedy trial and

the lacunas. The specific objectives are:

(i) To study whether the provisions to have fair and speedy trial under Criminal

Procedure Code are followed or not?

(ii) To study the reasons given by the judge to reject it;

(iii) To study the legal provisions and policies made till date for speedy and fair

trial;

(iv) To study the evolution and developments in speedy and fair trial;

(v) To assess the present system for speedy justice;

(vi) To assess the judicial practice of Hon'ble High Courts and Supreme Court with

respect to their discretionary powers for speedy trial;

(vii) To study various pronouncements made in India and abroad;

(viii) To find out the ways by which this right can be assessed by every person

including poor.

12
 Chapter 1

1.5 Review of Literature

Criminal justice system being a subject of great importance in the academic and the

professional field. Certain writers have attempted to highlight the concept of speedy

trial under criminal justice process. The following are a few of the important works,

Indian and foreign which deals with matters of speedy trial and reforms in criminal

justice system.

The book entitled ‘Handbook of Human Rights and Criminal Justice in India’, the

system and procedure compiled by Mr. Ravi Nair, published under the auspices of the

South Asia Human Rights Documentation centre (SAHRDC) and (published by

Oxford University press, 2006) has the object of providing for teaching material as a

text for students, a guide for journals and even for the lay citizen. Its excellent

documentation and citation of cases makes it a useful reference for lawyers, judges

and activists in the field. This book particularly discusses criminal procedure and

criminal justice in the context of human right. Specially this book is useful for

discussion of the essentials of a fair trial and safeguards against custodial torture.

The book entitled ‘Indian Judicial System: Need and Directions of Reforms’ edited by

S.P. Verma, published by Kanishka publishers, New Delhi, (2004) deals with

particular themes of judicial reforms including speedy justice and Indian criminal

Justice system, the topic is of great contemporary interest and relevance to all

academics, policy makers and citizens due to its importance in judicial administration

at various levels.

The book entitled ‘Law of Speedy Trial: Justice Delayed is Justice Denied’ by Hari

Om Maratha published by Lexis Nexis Butterworths Wadhwa, Nagpur (2008). This

book contains the gist about the law of speedy trial it is a compiled book having

relevant topics regarding judicial delay in dispensation of justice. This book is

13
 Chapter 1

relevant not only for legal fraternity. Members of Judiciary at all levels, prosecutors,

police, but to the entire community.

The book entitled ‘Law of Speedy Trial in India’ by B.L. Arora published by

Universal Law Publishing Co. Pvt. Ltd. New Delhi, deals extensively with the law of

speedy trial in India. It covers every aspect started with the evolution of state, basic

notion of law, crime and justice and covered provisions of criminal procedure code

with reference to the speedy trial, and case law on speedy trial This book also deals

with particular themes of criminal justice, such as, the historical and social framework

in which the crime control agencies have evolved the use of certain methods within

criminal justice system to guide the decision making bodies.

The book entitled ‘Judicial Reforms in India: Issues and Aspects’ by Arnab Kumar

Hazra and Bibek Debroy published by Academic Foundation in Association with

Rajiv Gandhi Institute for Contemporary Studies, New Delhi (2007). It covers

valuable information on judicial reforms by different authors, and deals with

particular themes as issues and aspects of judicial reforms in India. Does the poverty

of law explain elusive justice to poor, contemporary views on access to justice in

India, delay's in the administration of justice and the problem of court congestion etc.

are relevant topics for the academic as well as professional aspects of the system. This

book also examines through data’s and examines whether the system of criminal

justice obtaining in India is adequate enough to cope with the challenges of the time.

In the context of the growing complexity of crime and its control in a fast-changing

society, the author examines the question what structural changes are needed in all

components of the system to bring it in tune with the values of time.

The book entitled ‘In Defence of Liberty: The Story of America is Bill of Rights’ by

Russell Freedman, published by A Holiday House Book, New York, U.S.A. (2003),

deals with some aspect of the Bill of Rights, and particularly deals in detain about the

14
 Chapter 1

Amendments made in American Constitution, in which the Sixth and Seventh

Amendments deals with the ‘Right to a Speedy and Fair Trial’. This book is written in

a very easy language and is useful for academic as well as for the law professionals.

The ten amendments of the American Constitution comprising the Bill of Rights, and

highlighted that this landmark document as a means to defend the liberties of all,

across boundaries of race and gender, age and class, religion and ethics. And the same

focusing on examples of ordinary citizens who have had the courage to challenge

their government and raise their voices at injustice.

1.6 Research Hypothesis

In India, large number of pendency of cases in Courts is a major concern for both the

parties as well as for the State, inspite of right of speedy trial declared as a

fundamental right in catena of judgments under Article 21 of Constitution of India.

Speedy and fair trial is the utmost and fundamental requirement for judicial

accountability.

In the present work, researcher observed and perceived the adjudication process under

the procedural laws under different dimensions. It is believed that one of the lacunae

in adjudicating cases is slower disposal rate of cases. The frivolous, multiplicity of

suits and vexatious litigations are also added to the arrears of cases, which further

adds to this problem. Generally, the perception of public is that the provisions of

revision and adjournments in Criminal Procedure Code,1973 and in Civil Procedure

Code,1908 somewhere is the main reason for delay in dispensation of justice. In the

light of applicability of law it is seen that the procedural methodology adopted by

litigants/ lawyers to get adjudication from courts is applied not to get or impart justice

but to create unfairness and delay. The rationale behind the study is justified on the

basis of assumptions and completed with reasons, justification, conclusion and

suggestions.

15
 Chapter 1

1.7 Research Methodology

This present work is doctrinal work hence major study has been in library. The data

and information have been collected from both primary and secondary sources.

Constitution, Acts, treaties, subordinate legislation, orders of tribunals and courts,

Reports of various committees has been looked into as primary sources.

The cases decided by various judicial and quasi-judicial forums have been also

analysed for internal and external consistencies. Internal consistencies here mean

consistencies vis-a-vis that particular issue amongst various case situations, external

consistencies mean consistency vis-a-vis statutes, guidelines, rules etc. Proceedings of

conferences, both National and International on issues pertaining to response to the

cyber terrorism have been relied upon as secondary sources. Also, books, articles,

journals, reports and monographs discussing the issue has been looked into as

secondary sources. E-resources have been extensively referred to. Help has been

taken from law firms and institutions also. Moreover, the opinions, observations

perceptions and philosophies of the eminent authors, lawyers and jurists in the area

have been looked into.

The tool of doctrinal research which has been applied is descriptive and qualitative

ones. Descriptive studies have been undertaken to ascertain anecdotal events, working

of institutions and behavioural patterns of groups. It has been employed to understand

research problem. The purpose of this study was to enhance predictability under

certain circumstances. Qualitative research has been employed to analyse cases,

makes a comparative study of the various systems.

The materials collected from primary and secondary sources have been presented in

descriptive manner and wherever required critical inputs have been provided.

Although work is strictly a doctrinal one, Empirical data from both primary and

secondary sources have been used in the study. However, neither a field study nor
16
 Chapter 1

data collection through questionnaires of formal interview was under taken. Even

though there were many informal meetings with many experts in the field, they have

not been cited in the work because all arguments are based on published materials.

For the purpose of interpretation of legislations secondary sources were relied upon.

Further, foreign legislations have also been made basis of the present study.

Comparative studies of laws on speedy trials were also done to get a better perception

and understanding of various provisions of Indian legislations.

1.8 Scheme of Study

The present work namely ‘Right to Speedy Justice viz-a-viz Arrear of Cases in Indian

Courts’ has been broadly divided into six chapters including introduction and

conclusion. The aim of this work is to acquaint both laymen as well as lawmen about

the importance of speedy dispensation of justice, the problem of arrear of cases its

implications on society and the remedies to tackle this problem.

In Chapter 1 broad overview has been given about the concept and importance of

Right to Speedy Justice in both international and national legal frame work. A

detailed reason for failure of state to implement this right and other causes of the

pendency has been comprehensively deliberated upon. The views of the Supreme

Court on speedy trial and speedy justice have been discussed and the consequences of

such judgments have also been comprehensively dealt with.

The Chapter 2 deals with conceptual aspect of speedy justice, how this right has been

taken or acknowledged by the religious texts and doctrines, international laws, and

legal framework of countries like USA and UK. This chapter also tries to justify the

need of having Right to Speedy Justice in national legal framework and also

implementing it effectively. The background of speedy justice right has been traced

out and the necessity to have such right in the national legal framework has been

justified.
17
 Chapter 1

Chapter 3 deals with Constitutional and legal framework with regard to speedy

dispensation of justice. This chapter also deals with amendments which have been

made to existing statutory and procedural laws for the purpose of speedy delivery of

justice and reduction of court backlogs.

Chapter 4 deals with judicial pronouncements on speedy trial and speedy justice. An

analysis has been made of the observations of the Supreme Court on speedy justice

and court delays and their implications. Observation has been made in this chapter of

the judicial initiative of Supreme Court by which Right to Speedy Trial has been

made a justiciable right enforceable through courts of law. Important cases on speedy

justice decided by apex court have been dealt with critical appraisal.

Chapter 5 deals with causes, implications and remedies of arrear of cases. In depth

analysis has been made as to how such huge piling of cases took place in the courts,

what were the failures and lacunae on part of legislature, executive and judiciary

which has resulted such huge pendency throughout the courts in India that it seems

impossible to clear such backlog in near future. The implication of such delays, the

trauma and mental anguish of the litigants has been pondered upon. Then finally the

remedies have been discussed which if sincerely looked upon by all the organs of the

state and implemented may result in effectively reducing the arrears and improving

the faith of the people on Judicial system which is very much fading away due to such

delays.

Chapter 6 is the concluding part of the thesis which provides the concluding remarks

after the analysis of all the issues and aspects. This chapter also provides various

suggestions which can be proved fruitful for resolving such issues and improving the

efficiency of the court system in dispensation of justice.

The present study although limited in scope, also endeavours to ascertain the material

fact that has paralyzed the criminal justice system. For instance, the study reveals that

18
 Chapter 1

justice today is shut out to most in India. Most citizens, especially the disadvantaged

sections, have limited access to justice, due to unclear laws and high costs that act as

effective barriers. Unfortunately, those who do venture forth are also, often denied of

their right to justice. One of the major causes for this is known to be ‘delays in the

dispensation of justice.’

That ‘justice delayed is justice denied’ as repeatedly held by Apex Court, yet 'delays

continue in matters before the judiciary resulting in huge arrears/backlogs/pendency'

and repeated violation of fundamental rights of citizens of India. It is, therefore

evident that the old adage ‘justice delayed is justice denied’ is found present in about

all part of our country, causing frustration and anxiety not only amongst the under-

trial prisoners but also amongst their family members, neighbours, scholars dealing

with criminal justice system, jurists, judges and a number of other people. The urgent

need, therefore, is to find out solutions for delays in disposal of cases in general and

criminal cases in particular. Hence the researcher offers the following suggestions.

 The first and foremost step is to increase the strength of judges at all levels. The

present strength is inadequate in the sense that there are only 10.5 judges per 10

lack of population which is highly dissatisfactory as compared to the strength of

judges in advanced western countries like United States of America and United

Kingdom. The present strength of judges should be raised to 50 per 10 lack of

population at the earliest otherwise the huge pendency of cases will go on

increasing in future.

 The existing infrastructure of the courts in most part of the country is grossly

dissatisfactory in the height of technological advanced atmosphere. It is not only

necessary that the posts of judges and other court staff are to be created but the

old and ineffective infrastructure such as court rooms, building, manner of

keeping court records should all be changed be replaced with the modern

techniques and latest gadgets

19
 Chapter 1

 There is urgent need to have in place judicial machinery, which is easily

accessible and dispenses affordable, incorruptible, and speedy justice to the

people.

 There is urgent need to improve the present legal aid support system and legal aid

lawyers given better and prompt remuneration.

 It is need of the hour to have our legal procedures simple, rational, easily

understandable and the amendments of procedure have to be made carefully so as

to ensure quick justice while safeguarding that fair play, equity and good

conscience does not become a casualty. Speedy but faulty justice is no justice at

all.

 Steps need to be taken to make use of alternative disputes resolution mechanism

to decide the cases pending in different court involving petty offences. Such

minor cases may easily resolve through mediation and compromise.

 The role of advocates in speedy trial is also very crucial because they are equal

partners with the judges in the administration of justice. Separate steps need

delivery system. The Bar should also refrain from boycotting the courts and

approach concerned authority for redressal of their grievances. Members of the

Bar should avoid unnecessary adjournments. Members of the Bar should also

start following strictly the principles of professional ethics and abandon their

narrow parochial interest.

 There must be an effective computer training programme for not only the judges

of subordinate courts in different parts of the country but also for the entire staff

of the subordinate courts so as to make justice delivery system at the base level

speedier and timely.

 There is an urgent need on the part of the Union Government and as well as state

governments to change their mindset and stop politicising fundamental issues

such as judicial reforms, rather the government should take effective steps at all

20
 Chapter 1

levels that no inaction on the part of any government agency becomes an obstacle

in the speedy dispensation of justice.

 There is a need for effective case management system so as to control the rising

number of new cases for this purpose Fast Track Courts should be extended to the

level of Magistrates and all existing vacancies in courts across the country should

be filled up on top priority.

 Gram Nyayalay system dealing with petty disputes at the village level should

resolve the cases amicably and such courts should not be allowed to reach the

complicated legal stages and procedural delays are avoided.

 The concept of pre-trial meeting to restrict issues and admissible evidence should

also be taken to meet out the long and complicated procedural hurdles of the

evidentiary law.

 There is an urgent need to create deterrent effect on the witnesses who do not turn

up in the courts of law for evidence. Punishment for absconding witnesses should

be imposed and there should be strict enforcement deadlines and restrictions on

the length of arguments so as to ensue speedy trial in criminal justice system. The

criminal justice system machinery must also meet the challenge of effectively

dealing with the emerging forms of crime and behaviour of criminals. On many

occasions, delay in the process of trial is caused by the accused themselves.

The accused know that only delay in trial would help him as the memory of witnesses

is likely to be blurred by the passage of time. In most of cases, the blame for delay in

administration of criminal justice system is put at the doors of the courts. Courts are

over congested with petty cases and many legislations are being enacted which result

in filing of large number of cases before the courts.

Last but not the lest the need of the hour is to maintain an equilibrium between the

two most popular doctrines-‘justice delayed is justice denied’ and ‘Justice hurried is

justice buried’ dispensation of justice should result with best possible speed but the

21
 Chapter 1

quality of the trials and judgements is not compromised and that would be the only

way to achieve the noble ideas of justice-social, economic and political as conferred

in the Preamble of our Constitution.

22