A Hopeless Situation

Justice Delayed Is Justice Denied

I Mallikarjuna Sharma

The paradox and tragedy of justice being defeated by delay was recently prefaced by Mudashiru Nasiru Oniyangi, JCA, in his concurring opinion in a judgement of the Court of Appeals of Nigeria, interspersed with some apt quotes from littérateurs and caustically commenting thus:

"...Obviously, there is inordinate delay. An inordinate delay can be defined as the interposing of obstacle so as to hinder, deter and prolong the dispensation of causes before the Court. Delay is known to be one of the greatest impediments to the speedy dispensation of justice in our Courts hence the ancient philosophies stated "Justice delayed is justice denied." This maxim is incorporated in the Great Magna Carta of 19th June, 1215 Chapter 40 where [it is] said "To no one will we deny or delay right of justice." In the same way, William Shakespear put it as follows: "All through the years, we have protested at the law's delay, counted as a grievous wrong, hard to bear among the whips and scorns of times." Charles Dickens made a satire of the inordinate delay of trials in Court of Chancery in London over century ago in His book. 'Black House" [Chapter one]—"Delay of trial exhausts finances, patience, courage and hope, so over-throws the brain and break the heart."

"Hence a judicial system which can permit a simple case for example of wrongful termination of employment to remain in the Court for almost ten years cannot be said to be running smoothly and that whatever happens at the end of such a trial can hardly be called justice. Delay defeats equity, protracted delay is opposed to the realization of justice. It pollutes the stream of justice and prompts injustice of the highest order. It breeds frustration and despair inevitably culminating to resort to self-help with attendant chaos and anarchy." [College of Education, Ekiadolor and Others v Obayagbona (CA/B/38/2011) [2016] NGCA 80 (24 March 2016)]

Likewise, in the landmark Canadian Supreme Court judgment in Jordan [RV Jordan, dated 08-07-2016, 2016 SCC 27 = [2016] ISCR 631], which prescribed strict presumptive ceiling or conclusion of criminal trials, subject to any extension of limits/condonation of delay only under exceptional circumstances to prove which will be the burden of the prosecutors, which was recently approved and relied on in Cody [RV Cody, 2017 SCC 31, dt 16-06-2017], it was specifically stated in the Opinion of the majority in the Bench :
[1]    Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11 (b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".
[2]   Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.
[3]   An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.
[4]   Our system, however, has come to tolerate excessive delays. And that—
[19] ...the right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim : "Justice delayed is justice denied". An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
[20]        Trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence".

Then Indian Supreme Court too had lamented on the inordinate delays occurring in the justice delivery system on several occasions, but the more relevant and relatively recent occasion was its analysis of delays, occurring in criminal trials due to stays granted by High Courts, in Imtiyaz Ahmad vs State of UP & Ors., (2012) 2 SCC 688, from which these excerpts are worth quoting
[33] ...the issues being considered in this case have far reaching implications for maintaining of rule of law. Where investigation/trial is stayed for a longtime, even if the stay is ultimately vacated, the subsequent investigation/trial may not be very fruitful for the simple reason, that evidence may no longer be available. Witnesses may not be able to recall the events properly, and some may have moved away or even died. Even the parties to the litigation may not survive. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivizes people to look for short-cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law.
[35]         The present case discloses the need to reiterate that 'Access to Justice' is vital for the Rule of Law, which by implication includes the right of access to an Independent Judiciary. It is submitted that the stay of investigation or trial for significant periods of time runs counter to the principle of Rule of Law, wherein the rights and aspirations of citizens are intertwined with expeditious conclusion of matter.. ...delay in conclusion of criminal matters signifies a restriction on the right of access to justice itself, thus amounting to a violation of the citizens' rights under the Constitution, in particular under Article 21.
[37]         Dispatch in the decision-making process by Court is one of the great expectations of the common man from the judiciary. A sense of confidence in the Courts is essential to maintain a fabric of order and liberty for a free people. Delay in disposal of cases would destroy that confidence and do incalculable damage to the society; that people would come to believe that inefficiency and delay will drain even a just judgement of its value; that people who had long been exploited in the small transactions of daily life come to believe that courts cannot vindicate their legal rights against fraud and overreaching; that people would come to believe that the law—in the larger sense cannot fulfill its primary function to protect them and their families in their homes, at their work place and on the public streets.
[39]        ......Roscoe Pound argued that by responding to the doctrine of social justice, the concept of justice has advanced through various stages. ...... At the first stage justice was equated with dispute settlement. At the second stage justice was equated with maintenance of harmony and order. In the third stage, justice was equated with individual freedom. Pound argued that a fourth stage had developed in society, but had not yet been fully reflected in the courts, and that was what Pound called 'social justice'. That is the ideal form of justice where the needs of the people are satisfied apart from ensuring that they have freedom.
[40]        ......Rule of Law, independence of the judiciary and access to justice are conceptually interwoven. All the three bring to bear upon the quality ol aspirations which are guaranteed under our Constitution. In order to fulfill the aspiration, it is important that the system must be a successful legal and judicial system. This would involve improvement of better techniques to manage courts more efficiently, cutting down costs and duration of proceedings and to ensure that there is no corruption in the judiciary and the establishment of the judiciary and would also require regular judicial training and updating.
[42]         Under the principle of the Rule of Law, adequate protection of the law must be given to all persons and to give meaning to it, there must exist an unimpeded right of access to justice.
[43]         The right of access to justice has been recognised as one of the fundamental and basic human rights in various international covenants and charters. [See Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR)]
[44]         The right of access to justice is also recognised under Article 67 of the Statute of the International Criminal Court (Rome Statute).
[45]         In the context of the European Union, Article 47 of the European Charter on Fundamental Rights provides for the right to an effective remedy and to fair trial. With respect to the Council of Europe, the European Convention on Human Rights and Fundamental Freedoms, Article 6 significantly protects this right to access justice.
[46]        The European Court of Human Rights has held that a broader interpretation must be given to Article 6th of the ECHR laying emphasis on 'right to a fair administration o justice'...
[47]         Article 8 of the Universal Declaration of Human Rights provides that: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law".

The Court also noted the contents of the arguments by the learned amicus curiae and the Additional Solicitor General before proceeding to form its opinions and issue any directions/guidelines in this case :
[50]        The learned Amicus urged that having regard to the paramount importance of the right to access, which... is a basic fundamental right, specially the Central (Government and the State Governments have a duty to ensure speedy disposal of cases for proper maintenance of rule of law and for sustaining peoples' faith in the judicial system. ...that with the present infrastructure it is not possible for Courts, whether it is District Courts or the State High Courts or this Court to effectively dispose of cases by just and fair orders within a reasonable timeframe. The learned Amicus also urged that the problem is huge and the considerations are momentous. To understand the magnitude of the problem, the Government must appoint a permanent commission to make continuous recommendation on measures which are necessary to streamline the existing justice delivery system.
[53]         The learned ASG very fairly submitted that the questions debated in this case, by and large, are not adversarial. The learned ASG submitted that the Government also accepts that right of access to Court is a fundamental and constitutional right. The learned ASG also accepted that if right to access justice is denied to the citizens then most of the rights given under the Constitution virtually become a rope of sand. The learned ASG submitted that the Government is aware of the importance of these rights and are taking several steps to make these rights vibrant. In the counter affidavit, which has been filed by the Under Secretary, Ministry of Law and Justice—dated 9.1.2012 several steps which have been taken by the Government to ensure speedy justice and to reduce delay [have been indicated]

Then the Court, "upon a detailed and very anxious consideration of the aforesaid issues and specially huge tendency of arrears in different High Courts and considering the stand of the Central Government in its affidavit dated 18.1.2012," issued the following directions:
[60]        ......I. Certain directions are given to the High Courts for better maintenance of the Rule of Law and better administration of justice:
While analyzing the data in aggregated form, this Court cannot overlook the most important factor in the administration of justice. The authority of the High Court to order stay investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparing only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that: (i) such an extraordinary power has to be exercised with due caution and circumspection, (ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial, (iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued.

[61] It is true that this Court has no power of superintendence over High Court as the High Court has over District Courts under Article 227 of the Constitution. Like this Court, High Court is equally a Superior Court of Record with plenary jurisdiction. Under our Constitution High Court is not a Court subordinate to this Court. This Court, however, enjoys appellate powers over High Court as also some other incidental powers. But as the last court and in exercise of this Court's power to do complete justice which includes within it the power to improve the administration of justice in public interest, this Court gives the aforesaid guidelines for sustaining common man's faith in the rule of law and the justice delivery system, both being inextricably linked".

Further, noting that there is already a permanent Law Commission which has been giving detailed reports with valuable suggestions on improvements in the justice administration in the country, the Apex Court thought it fit and proper to direct the Law Commission to do the needful in this case :
a)    Since the Law Commission itself is seized with the problem and is making investigation ...this Court requests the Law Commission, which is headed by a distinguished retired judge of this Court, to undertake an enquiry and submit its recommendation in relation to the following matters :
I.     Keeping in view that timely justice is an important facet to access to justice, the immediate measures that need to be taken by way of creation of additional courts and other allied matters (including a rational and scientific definition of "arrears" and delay, of which continued notice needs to be taken), to help in elimination of delays, speedy clearance of arrears and reduction in costs. It is trite to add that the qualitative component of justice must not be lowered or compromised; and
II.    Specific recommendations whenever considered necessary on the above aspects in relation to each State be made as a product of consultative processes involving the High Courts and other stake holders, including the Bar.
b)    In doing so, the Commission may take such assistance from the Central Government and the State Governments as it thinks fit and proper.
c)     Accordingly, it is directed that on the Commission's request for assistance both the Central Government and the State Governments shall render all possible assistance to the Commission to enable it to discharge its functions, as directed by this Court in its order. The Commission shall at the discretion of its Chairman be free to co-opt, for the purposes of the enquiry to be undertaken by it, such legal & technical experts as may be considered necessary by it for an effective and early completion of the assignment...
d)    The Commission is requested to submit its report within six months from the date of this order.

It may be deemed a distraction, but in ancient India as well as in medieval times, including under Muslim rule, dispensation of justice was generally expeditious though it might not have been liberal, libertarian or democratic and certainly it was monarchic, often tyrannical. In ancient times, and even now, "Justice protected, protects" is the cardinal inscription and constant refrain of the governments and people of India. This adage like assertion first declared in the Manusmiriti : "Justice, being violated, destroys; justice, being preserved, preserves: therefore justice must not be violated, lest violated justice destroy us"—and also in so many scriptures, and made a brand slogan of the government and various administrative bodies in different forms. However, in ancient India too, in criminal trial processes it is instructed that witnesses should be examined as early as possible lest the evidentiary value of their depositions should suffer due to many defects and lapses like memory lapse, distortions, etc. Also the specific instructions in the scriptures and smritis that an accused person if found innocent can be acquitted the same day as he has been brought to trial and that no person sentenced to death should be executed until after the next day afternoon [to provide time and occasion for any reprieves or pardons by the King, etc.] clearly indicate that even in capital punishment cases the trials were completed quite expeditiously. A perspicacious writer (Balbir S Sihag) has commented on the judicial system as expounded in the ancient Artha Sastra of Kautilya thus : "The judicial trials were initiated very promptly, perhaps not to adhere to the dictum that 'justice delayed is justice denied' but due to the belief of an increasing unreliability of evidence as time passed. Reference was made to an ancient commenter who argued, "Because interrogation after some days is inadmissible [unreliable?], no one shall be arrested on suspicion of having committed theft or burglary if three nights have elapsed since the crime, unless he is caught with the tools of the crime (4.8)." However, Kautilya seems to have differed and stated, "(But then,] An offender shall not go scot-free (just because of passage of time] (3.19)." He suggested, "The maximum time allowed for a defendant to file his defense shall be three fortnights (3.1)." Also, there was some disincentive to the State in solving the crime or delaying the trial in that if the crime was not solved, the King, who was to be and was the fountain-source of all justice in the kingdom, was to compensate the victim, sometimes up to 30 times the loss that actually occurred to him. Further, it was ordained that for any failure of justice not only the culprit perpetrator but also the judges and the king had to share the burden of the sin—"8.18. One quarter of (the guilt of) an unjust (decision) falls on him who committed (the crime), one quarter on the (false) witness, one quarter on all the judges, one quarter on the king."

Similar such deterrent/preventive measures were prescribed in other Smritis too. Likewise, justice used to be dispensed expeditiously under the rule of Muslim kings and emperors also.

As the issue of "access to justice" has also been raised above by India's Apex Court as a basic point, I would like to narrate two legendary stories [how far historically true cannot be vouchsafed]—one from ancient times and the other from Mogul times here. Queerly, the former is narrated in a judicial order of Apex Court itself [dated 30-12-2016, dismissing WP(C) D No 43118/2016 filed by National Lawyers' Campaign for Judicial Transparency and Reforms & Ors challenging the appointment of Hon'ble Mr Justice J S Khehar as the [next] Chief Justice of India] as follows: "...when one enters the magnificent precincts of High Court of Madras which is a Chartered High Court, he notices the statue of a man standing with two wheels on cither side with a calf and a small child beneath each wheel, and a cow. He becomes anxious to know the significance as to why and to what purpose this statue is located near the entrance of the High Court. The statue is that of the ancient Chozha King, Manu Needhi Chozhan, also known as Elara, who ruled South India around 250 BC. Legend is that Manu Needhi Chozhan, who believed in even justice towards friends and foes, had hung a giant Bell in front of his palace and announced that anyone seeking justice could ring the bell and voice will be heard. One day, it so happened that a young calf had got crushed under the wheels of his chariot, in which his only son, young Prince Veedhividangan, was going around the city. The mother of the calf which helplessly watched its little one die, walked to the palace gates and rang the huge bell, demanding justice from the king. The king came out and saw the cow, he learnt from his courtiers about the death of the young calf under the wheels of his son's chariot. Unrelenting from his promise for justice, he ordered his own son to be killed for his recklessness. The prince was killed the same way the calf had died, being crushed under the wheels of his chariot. The king went through the same pain the cow had as he witnessed his son die and thereby, being just at all costs. The other about Jahangir hanging a chain (or bell) of justice is recorded in Jahangirnama, a biographical work with largely purported autobiographical statements of 'the Emperor himself. It is recorded there as if Jahangir himself says : "Hanging the Chain of Justice : After my accession, the first command issued by me was to have a chain of justice hung so that if those charged with administering the courts were slack or negligent in rendering justice to the downtrodden, those who had suffered injustice could have recourse to the chain and pull it so that the sound would cause awareness. It is set up as follows. I ordered a chain made of pure gold, thirty ells in length, with sixty bells. It weighs four Hindustani maunds, which is thirty-two Persian maunds. One end is attached to the crenellations of the Shah Tower of the Agra citadel, and the other end is stretched to the bank of the river and affixed to a stone post erected there." However, but for this solitary statement which appears in the beginning of Jahangirnama, one cannot find any other reference to or mention of any act of justice done by the Emperor in pursuance of such chain [bell] of justice being used. But, several legendary stories are in currency though—one says that an emaciated horse not fed by its owner had, in the act of quenching its hunger by eating the leaves of a creeper grown around the chain, pulled the chain accidentally, the bell rung, the matter has gone to the presence of the Emperor himself, who enquired and found one his subject military officers responsible for maltreating and starving the horse, and ordered him to feed the horse well and take good care of it. Another story is that on a widow whose husband was killed by one of his subordinate officers [purportedly protected by his wife Noorjahan Begum] unjustly, ringing the bell by pulling the chain of justice, Jahangir had asked her to shoot herself so that the same grief and misfortune that struck her should now afflict his own wife Noorjahan. Needless to stress, it is hard to believe these stories, and then I think treating ...Cholan King as a role model is also not correct and proper since such sadist despotic rendering of justice cannot be viewed as an impartial, equitable relief and certainly is an anathema to the modern democratic mindset. These stories are narrated here only to stress the need for an easy sure and ready access to justice for all.

But those were the days of monarchical, despotic if not totally arbitrary or tyrannical rule and, as the First Law Commission correctly remarked long ago in its 14th report, total abandonment of the present system of justice delivery with going back to the ancient Hindu or Muslim systems of delivery is impossible and quite undesirable even in the modern times of we people of India desiring progressing to construct a social welfare State with the ideals of secularism, socialism and democracy inscribed on its head. It would have been very instructive to quote even some portions of this Law Commission's analysis of various facets of India's indigenous system here but, space constraints prohibit such exercise and only the conclusions of that chapter are cited as hereunder:

"THE POSITION TODAY : 18. Can we in the present social structure think of a reversion to the earlier pattern of judicial administration? The law that is administered is no longer customary law. In fact, thousands of statutes and regulations control down to the minutest detail the lives and activities of every citizen of this country. The Legislatures both at the Centre and the States have undertaken reforms of a far-reaching nature affecting the well-being of millions of citizens. ......... A Welfare State has necessarily to undertake legislation on an ever widening front, if the ultimate aim of a socialistic pattern of society operating within the domain of Rule of Law is to be evolved by democratic process. The enormous legislative output of Parliament and the State Legislatures calls for trained personnel to implement them. No one can assert that in the Conditions which govern us today the replacement of professional courts by courts of the kind that existed in the remote past can be thought of.

"PRESENT SYSTEM IN ACCORD WITH OUR GENIUS: 19. The statement that our present system of judicial administration is not in accord with the genius of our country has therefore no substance. The genius of our country has found expression in our Constitution which enshrines the Fundamental Rights of the people and the Directive Principles of Slate Policy as the necessary foundation for a new social order. We cannot see how the noble aims enshrined in the Preamble to our Constitution can ever be realized unless we have a hierarchy of Courts, a competent judiciary and well-defined rules of procedure.

"ABOLITION IMPOSSIBLE: 20. While we are aware that there are well-founded complaints against some aspects of the present judicial administration, we must emphatically state that the way of reform does not lie in the abandonment of the present system and replacing it by another. The true remedy lies in removing the defects that exist in the present system and making it subserve in a greater degree our requirements for the present and future.

To a limited extent, however, it is possible to utilize some of the simple features of judicial administration that obtained in the past. ...... [like] the popular courts or as they are termed today the nyaya panchayats......" [See Ch. 4, The Indigenous System, 14th Report of the First (Sctalvad) Law Commission, Vol. I, 1958]

The First Law Commission made several recommendations, good and bad, and some of them seem to have been implemented in due course, for example, the establishment of a separate Ministry of Justice in the Central Government. Its recommendation to make Hindi in due course the sole language of the Courts is in my opinion quite bad and anyway not implemented till now; I think it is not worthy or capable of implementation even now and any such serious effort have no doubt, is going to generate some if not many revolts in various parts of the country will break up its present, already uncomfortable state of unity and integrity. From then onward various Law Commissions have made several reports concerning administration of Justice generally touching on this aspect of delays in justice delivery mechanisms.

In 2010 Justice VV Rao of the Andhra Pradesh High Court had remarked that it would take 320 years for the Indian judiciary to clear the millions of pending cases. It was in view of such heavy pendency of arrears and backlogs that the Apex Court had directed the Law Commission to enquire into and submit its suggestions and recommendations for removing these defects and speedy redress of grievances of the litigants before Courts. Accordingly, the Law Commission made due enquiries and made many suggestions to improve the justice system. But who is listening? Not the government.

It is true mere filling up of vacancies may not be enough, judges' strength also has to be considerably increased so as to come to respectable levels compared to international standards, and much simplification of judicial processes, especially for ensuring a corruption free climate, has to be done and a sense of duty and social consciousness has to pervade both the bench and the bar. Free or reasonably cheap alternative dispute resolution mechanisms and forums have to be encouraged and that not for making millions by retired judges—here is what Late Justice Sri J S Verma, the 27th CJI, deprecating the practice of retired judges aspiring for governmental and other appointments and especially earning millions in arbitrations, and jocularly saying to my senior, late Sri K G Kannabiran—"Kannabiran, I am counting the millions I am not making now"! Such judges could volunteer and their services can be solicited and taken for clearing backlogs of cases with some decent honorariums offered to them as a mark of respect. The paper work and other processes for admissions and proceedings of cases have to be simplified—nowadays even the Supreme Court is complicating the matters in this regard—it is becoming a 'Kuppu Swami Iyer made difficult' affair! Even an illiterate or less educated person should be able to lodge a complaint or writ petition in High Court or other courts in his own language or at least official language of the State and the processing should be freely and happily done by the Court staff and expeditiously taken up by the judges. This mandatory facility will remove much corruption in the registries and bureaucracies related to justice delivery mechanisms, it should be remembered courts are for common people more and not for the rich and super rich. But what of now—the entire judicial system is as if making a mockery of the ideals of social and economic justice. Who can go to the Supreme Court now without lakhs in his pocket to spend? Even earnest public interest advocates are requiring lakhs now—let alone the ordinary money-minded lot. Even in High Courts it has become prohibitive for the common man or middle classes to successfully file and litigate the cases.

Autumn Number
Vol. 50, No.12-15, Sep 24 - Oct 21, 2017