Above: Litigants cool their heels outside Tis Hazari Courts in Delhi ahead of their hearings/Photo: Anil Shakya 

The Supreme Court has taken all kinds of measures to ensure quicker justice. One of them is that all existing stay orders of higher courts will come to an end on September 27, 2018

~By Justice Bhanwar Singh & Dr NK Bahl

If we look at access to justice in our country, the judicial era can be divided into two major periods. One starts from the commencement of the Constitution up to 1985. The next era, post-1985, is prominent because of the passage of three important legislations—the Legal Services Auth­orities Act, 1987, which provided legal literacy to the masses through district legal aid services authorities; the Protection of Human Rights Act, 1993, which gave greater awareness and implementation of human rights and the third, the Right to Information Act, 2005, which provided information to people which was otherwise not accessible to them.

In the era between 1950 and 1985, the number of laws and courts were limited. Consciousness among the masses, too, was at the lowest ebb. The number of judges was scanty, but even then, there was good implementation of laws and justice was available to almost all citizens. The cost of litigation was also affordable. Generally, a criminal trial was decided within two-and-a-half years and its appeal, within six years. It was an era of timely justice.

In the post 1985-era, more and more laws were enacted, public awareness increased and the number of cases soared. However, the number of courts and judges did not increase in proportion. The population too doubled. As a result, the floodgates of litigation opened, causing docket explosion and justice was delivered to only a few, mainly due to delays in access to it. Simultaneously, the cost of litigation went up astronomically. It now takes at least eight to 10 years to decide a case. High Courts even hear criminal appeals filed as far back as 1988. Only urgent matters, injunction applications and bail applications are being heard on a priority basis. Hardly any time is left for regular hearing of the original cases and appeals at higher levels.

Same is the case in neighbouring countries. Recently, Pakistan’s Supreme Court decided a case of inheritance filed in 1918 in 2018, i.e., a full 100 years later. Is this access to justice or excesses of justice?

The Supreme Court has recognised that access to justice is a fundamental right under Article 14 and 21 of the Constitution. Its role in expediting access to justice has been significant ever since the commencement of the Constitution. The revolutionary concept of PILs started with the wonderful decision of the Supreme Court in the Bandhua Mukti Morcha case, when a letter was treated as a writ petition. There are instances when the guidelines of the Supreme Court were adopted by the legislature and laws were amended and enacted afresh. The Vishakha guidelines and directions in the DK Basu case are glaring examples. A number of directions on prison reforms and rights of undertrials and convicted persons are worth noting too.

If we talk of women’s rights, the directions of the Court for interim maintenance during the pendency of the main application under Section 125 of the CrPC in Savitri vs Govind Singh Rawat were part of a breakthrough judgment. For Muslim women, the judgment of the Supreme Court in the Shah Bano case was an eye-opener in as much as it provided maintenance to Muslim women from their husbands. To undo this judgment, government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which restricted the right of maintenance only up to the period of iddat, i.e., three months. The constitutional validity of this Act was chal­lenged in Daniel Latifi v UOI, wherein the Supreme Court reiterated the position of the Shah Bano judgment. This judgment brought a sigh of relief for divorced Muslim women. The verdict on triple talaq, though a little late, is also laudable and a step towards justice, bringing cheers from Muslim women.

Another landmark ruling of the Supreme Court on speedy justice was pronounced on March 28, 2018, in Asian Resurfacing of Road Agencies Pvt Ltd v CBI, wherein it ruled that in all civil and criminal cases, the stay order will not be operative six months after its grant by the appellate or revisional court. This means that a stay order will automatically stand vacated after six months unless it is extended by a speaking order. What a judgment, indeed! The Supreme Court has decided that trials cannot be stayed for more than six months in civil and criminal cases, particularly corruption cases because justice delayed is justice denied. It was also emphasised that the order must show that the case was of such an exceptional nature that continuing the stay was more important than having the trial finalised. Prolonged trials can result in witnesses turning hostile or dying and evidence getting diluted, frustrating the victims and law enforcement agencies. Delay in trial affects faith in the rule of law and efficacy of the legal system. It was also observed that a stay should be granted by High Courts in the rarest of rare cases.

It is commonly noticed that once a stay order is granted by the court till the next date of listing, litigants in whose favour the stay orders were passed try their best to manipulate the system so that the matter is not listed or even if listed, does not reach the hearing stage. Court clerks also contribute to these malpractices. Unfortunately, if the dates of listing coincide with lawyers’ strikes, the whole year is lost but the stay continues. The practice of repeated adjournments and mentioning of “illness” on the date fixed, though the pleaders are present in the court campus, are also contributory factors in delaying the hearing of cases. This will be checked to a considerable extent by this ruling and automatic vacation of stay after six months will definitely accelerate the pace of justice.

Another malady is that litigants try and press before appellate/revisional courts that their file in the lower court be summoned for hearing. If the file is summoned by the higher courts, lower courts become helpless to proceed with the case even though there is no stay. This is tantamount to a stay order.

In continuation of the order dated on March 28, 2018, the bench of Justices AK Goel and RF Nariman of the Supreme Court ruled on April 25 that High Courts and the Supreme Court should get photo/scanned copies of the record of the lower court to decide the case and original documents should remain with the trial court to ensure uninterrupted proceedings. But in specific cases where the original record is required, the appellate or revisional court may call for the record only for perusal and the same should be returned while keeping a photo/scanned copy of the same. This will definitely lead to quicker justice.

Whenever a time-bound stay was granted by High Courts, it was invariably a practice among lower courts to write to the High Court asking whether the stay order was extended by that court or not. A series of reminders were required to be sent every third month as the registry of the High Court rarely replied. This practice depicts a consciousness of lower courts to speed up justice. But of late, this practice too has vanished. The ruling of the Supreme Court will obliterate any such practice.

In order to speed up disposal of criminal and civil cases, fast track courts were created all over India under the 11th Finance Commission. These courts were a great success. Thereafter, evening courts were created to deal with criminal matters, but they are running slowly.

However, the Supreme Court has often burned the midnight oil to hear matters. For example, the execution of Surender Koli, the accused in the Nithari killings, was stayed by the Supreme Court at 1:40 am on September 7, 2014. The application for a stay of the execution of Yakub Memon, who was involved in the Mumbai bomb blasts, was heard and rejected at 3:20 am on September 29, 2015. Recently, on May 17, 2018, the Supreme Court heard the petition of the Congress party (Dr G Parmeshwara and Another v Union of India, Ministry of Home Affairs) challenging the May 16 decision of the governor of Karnataka who invited BS Yeddyurappa of the BJP to form a government in the state. The hearing continued till early morning.

Recently, 12 special courts for quick justice were created to hear more than 1,500 pending cases against politicians. Due to delays in trials, politicians keep on contesting elections even if criminal cases are pending against them. It is, therefore, better to get these cases decided at the earliest to check corruption.

The history of the Supreme Court is full of such leapfrog instances. In Common Cause v UOI (1996), cases relating to traffic offences under the Motor Vehicles Act were to be closed if summons were not served upon the accused for more than two years or the case remained pending for more than two years.

It was also held that where cases are pending in criminal courts for more than two years under IPC or other laws, which are compoundable with the permission of the court, the accused should be discharged or acquitted after hearing both parties. Similarly, cases under IPC or other laws which are non-cognisable and bailable and pending for more than two years and where the trial have not yet commenced, criminal courts shall discharge or acquit the accused and close them.

Also, the same treatment needs to be given to offences which are punishable with fines only. If they are pending for more than a year and if trials have not commenced, courts shall discharge or acquit the accused. In cases which are punishable with imprisonment up to one year, with or without fine, and pending for more than a year, criminal courts were directed to discharge or acquit the accused. It was also held that if trial of an offence which is punishable with imprisonment up to three years, with or without fine, has been pending for more than two years, and the trial has not commenced, the court was required to discharge the accused and drop the proceedings. Thousands of cases were decided all over India under the directions of the Supreme Court, relieving courts from backlogs.

Another bright example is of Raj Deo Sharma v State of Bihar (1998) wherein it was held that in trial of offences punishable with not more than seven years of imprisonment, whether the accused is in jail or not, prosecution evidence has to be closed on completion of two years from the date of recording the plea of the accused. In such cases, if the accused has been in jail for not less than half of the maximum punishment provided for the offence, he should be released on bail. But if the offence was punishable with more than seven years of imprisonment, prosecution evidence is to be closed on completion of three years from the date of recording plea of the accused. The period of stay order or operation of law was to be excluded from the above mentioned period of two or three years.

The ratio decidendi of Common Cause and Raj Deo Sharma was held as not a good law and was overruled by the Supreme Court itself in P Ramachandra Rao v State of Karnataka on April 16, 2002. It held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe the outer limit for conclusion of all criminal proceedings.

During this period of almost five years, thousands of cases were closed and dockets cleared to a considerable extent. The courts are already overburdened. If stayed cases, which are in large number, are revived for hearing, will they not cause a docket explosion once again? This is a million dollar question to be answered in the near future.

—The first writer is an ex-judge, High Court of Judicature at Allahabad and is presently, D-G, Sunshine Educational Society, Noida. The second writer is professor of law/director, Judicial Training Academy, DME, Noida