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The Long, Tortuous Wait

The Long, Tortuous Wait

Above: People waiting at Gurgaon District Court/Photo: Anil Shakya

As the apex court seeks effective solutions to mounting pendency in high courts, it has felt the need to initiate a target-specific exercise to analyse data and started with the Allahabad High Court

~By Venkatasubramanian

Ramu, a prisoner, sentenced by a trial court to life imprisonment for rioting and murder in 2007 and lodged in District Jail, Unnao, Uttar Pradesh, first appealed against his conviction in the Allahabad High Court. As the appeal was pending for a decade, he sought bail. When the High Court rejected it, he moved the Supreme Court, which too was not inclined to interfere with the High Court order.

However, the Supreme Court bench of Justices J Chelameswar, Abhay Manohar Sapre and Amitava Roy on March 31 last year directed the High Court to decide his appeal within four months. It ordered this due to the huge pendency of cases before the High Court because of which it would take several years for the disposal of the appeal.

Further, the bench decided to address the larger issue of mounting pendency and delay in disposal of cases, both before district and high courts. The bench was curious to know why in spite of exhaustive directions from the apex court for speedy trials and disposal of criminal appeals, as ingrained in Article 21 of the Constitution, nothing had changed on the ground. The bench noted that the reason for the huge pendency perhaps lay in the general nature of these directions. Therefore, specific guidelines based on the recorded data of pending criminal appeals, to start with as a pilot project, of the Allahabad High Court might be an answer.

The choice of the High Court, we may clarify, is only in view of the extent of pendency and the frequently expressed concern over the relatively longer disposal time in the adjudication of the criminal appeals before it, which as well is noticeable from the contemporaneous records. We wish to state that the selection of the High Court by no means is an indication of any deficiency in the functioning or the ongoing endeavours on its part in addressing the issue and ought to be viewed as a step, if possible, to reinforce the same in the espousal of a public cause founded on the cherished right of personal liberty, however, in accordance with law,” the bench had observed in its order.

The bench emphasised that not only the custodial restraint of those detained has to be sanctioned by law, but that any undue and unjustified delay in the redressal processes initiated by them would have the potential of their detention being adjudged as violative of their constitutionally secured right to fair and speedy justice.

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Reacting to the issue of pendency of cases, Justice Bhanwar Singh, former judge of the Allahabad High Court, told India Legal: “A total of 40.54 lakh cases are pending across the country in 24 high courts. This amounts to an almost 44 percent shortage of judges at a time when the judiciary and the executive are in conflict over the appointment of judges. Over 9.24 lakh cases are pending in the Allahabad High Court. With the existing strength, it may take 50 years or more to decide only pending cases. The immediate appointment of judges is required to expedite cases or else the delay would end up in denial of justice. Justice Sudhir Agarwal of Allahabad High Court did a commendable job in clearing one lakh cases during his tenure of over 12 years.”

The bench further observed: “Though the delay in disposal of the trials and the appeals, in varying degrees, may be traceable to several causes, e.g., infrastructural, logistical and otherwise, the spectre of prolonged pendency thereof for years together is a distressful reality. There are instances where the criminal appeals against conviction have been and are being rendered infructuous, the convict appellants having during the pendency thereof served the terms of imprisonment imposed on them. Qua, a life convict as well, a delay of 15 to 20 years in the disposal of his appeal against conviction would for all practical purposes frustrate his challenge thereto.”

The bench, therefore, felt the need to initiate a target-specific exercise by analysing relevant data with regard to the pendency of criminal appeals before the Allahabad High Court, and explore remedial steps to expedite the hearing and disposal of pending cases. The bench thus directed the Registrar General of the High Court to furnish the relevant data.

On January 5, Ramu’s pending appeal was heard by Justice Chelameswar along with Justice Sanjay Kishan Kaul after a gap of several months. Although the Registrar of the Allahabad High Court had submitted the relevant data on May 6 last year, the Supreme Court took its own time to direct its registry to furnish its copy to Ramu’s counsel. The bench also sought Ramu’s conduct report from the District Jail, Unnao, to be considered on February 6 to review his bail plea afresh. Apparently, the bench’s direction to the High Court last year to hear and decide his appeal within four months from March 31, 2017, was not complied with.

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Inordinate delays in high courts in disposal of appeals from undertrials and convicts who have been in custody for a long period mar the credibility of the judicial system. Different benches of the Supreme Court have, time and again, emphasised the need to cut down delays to ensure expeditious delivery of justice.

In A.R. Antulay v R.S. Nayak, (1992), the Supreme Court held that speedy trial at all stages is part of reasonable, fair and just procedure, guaranteed under Article 21. This constitutional right, the Court held, cannot be denied even on the plea of non-availability of financial resources. The Court is entitled to issue directions to augment and strengthen investigating machinery, setting up of new courts, building new courthouses, providing more staff and equipment to the courts, appointment of additional judges and other measures, as are necessary for speedy trial.

The Supreme Court has further held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While this deprivation for some time may not be avoidable, the period of deprivation pending trial/appeal cannot be unduly long. The Court held that while a person in custody for a grave offence may not be released if the trial is delayed, it has to be expedited or bail has to be granted in such cases.

In Thana Singh v Central Bureau of Narcotics (2013), the Supreme Court directed that liberal adjournments must be avoided and witnesses, once produced must be examined on consecutive dates. Directions were also issued for setting up of sufficient laboratories, for disposal of seized narcotics and for providing charge-sheets and other documents in electronic form in addition to hard copies to avoid delay.

In Akhtari Bi (Smt.) v State of Madhya Pradesh (2001), the Supreme Court observed that it is incumbent upon high courts to find ways and means to ensure the disposal of criminal appeals, particularly those where the accused are in jail  and see that the matters are disposed of within the specified period not exceeding five years. Regular benches to deal with criminal cases can be set up where such appeals are listed for final disposal, the Court said.

It further observed that if an appeal is not disposed of within five years for no fault of the convicts, they might be released on bail on such conditions as may be deemed fit and proper by the court. There may be cases where even after the lapse of five years, the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.

In Bhim Singh v Union of India (2015), the Supreme Court directed the centre to take steps in consultation with states in fast-tracking all types of criminal cases so that justice is delivered expeditiously. It was observed by the Court that as more than 50 percent of the prisoners in various jails are undertrials, it is apparent that Section 436A, CrPC, is being violated. The Court’s answer to this is the constitution of a review committee in every district under the chairmanship of the district judge, to implement Section 436A.

In Imtiyaz Ahmad v State of Uttar Pradesh (2012), the Supreme Court noted that the total number of more than five-year-old cases in subordinate courts at the end of 2015 was 43,19,693. The number of undertrials detained for more than five years at the end of 2015 was 3,599. The number of appeals pending in high courts where detention period is beyond five years may be still higher, the Court noted.

On March 9, 2017, in Hussain v Union of India, the Supreme Court requested High Courts to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where the accused are in custody for more than five years are concluded at the earliest. It was held that if there is violation of the right of speedy trial, instead of quashing the proceedings, a higher court can direct conclusion of proceedings within a fixed period.

But the High Court’s report to the Supreme Court on the status of pendency of cases is sure to shock the bench and the counsel. As many as 14 criminal appeals filed nearly 40 years ago are pending disposal. Of these, two were filed in 1976, four in 1977 and eight in 1978. More than 13,600 criminal appeals are reportedly pending for more than 30 years in High Court.

It is no wonder that the Supreme Court’s direction to hear and decide Ramu’s criminal appeal out of turn could not be complied with without discriminating against other prisoners who might have been in custody for longer than him.

The Allahabad High Court has reportedly told the Supreme Court that one of the main reasons for delay is the almost 50 percent vacancy in judges’ posts as the Court has a working strength of 108, which includes 65 permanent and 43 additional judges, along with 52 vacancies.

According to the High Court, the average disposal time of an appeal is about 11.39 years. The Court cited its lack of sufficient skilled employees for its failure to utilise e-courts and technology to expedite the hearing of cases. Faced with the defensive stand of the High Court, the Justices Chelameswar-Kaul bench appointed senior advocate MN Rao as the amicus curiae to assist the court in finding a practical solution to what appears as a systemic issue.

Even as the Supreme Court finds a solution elusive, a recent report by NGO Daksh in Bengaluru called “Approaches to Justice in India” has the potential to help the Court find effective remedies. According to Harish Narasappa, Daksh’s co-founder, implementing the Supreme Court’s orders to ensure expeditious disposal of pending cases requires efficient day-to-day functioning of subordinate as well as high courts. Creation of a full-time senior administrative cadre for the judiciary is inevitable and needs to be done at the earliest, says the report.

Narasappa says that the appointment of full-time administrators is a decision that can be taken by the chief justice of each high court, and it does not require elaborate approvals by different institutions. Daksh’s analysis shows that between 45-55 percent of court time is spent on non-substantive issues such as re-issuing summons, fixing dates for future hearings and similar case administration decisions.

Delegating these functions to an administrative officer will give every judge nearly double the time each day for dealing with substantive matters and can significantly improve day-to-day efficiency, he suggests.

Incidentally, case flow management rules notified by most high courts already provide for such delegation. However, this has not been implemented successfully because the registry in subordinate courts does not have suitable officers who can deal with these issues authoritatively.

An immediate step that can be taken, says Narasappa, is to appoint retired district judges for a period of two years to deal with the procedural matters in the registry.

In a comparative study by Daksh to analyse the reasons for delay in high courts and subordinate courts, a total of 91,797 hearings for 6,167 cases were examined across 12 courts. It found that for 40 percent of these hearings, other than the date of hearing, absolutely no additional information on proceedings was provided.

Of the hearings for which information was available, 47 percent were adjournments. The reasons for the adjournments were varied and attributed to all the actors in the system, including the judge, parties to the case, advocates, witnesses and court administrators.

Further, in an additional 7.25 percent of the hearings, no reason was given for the grant of adjournment.

This shows that judges were operating in contravention of the Code of Civil Procedure, 1908, which expressly states in Order 17 Rule I that reasons for adjournment must be recorded in writing by the judge.

Unless judges operate in accordance with procedure, there is no chance of improving efficiency and addressing delay and backlog, the report says.

As the Chelameswar-Kaul bench resumes hearing in Ramu’s case on February 6, it might be in order for it to take note of this report.