is a rather vague term, fabricated by society to incorporate a sense of fairness in relations between individuals, amongst themselves and in their interaction with the State. “Ubi jus ibi remedium”, a basic doctrine in law stands as the very embodiment of the prevailing sense of justice that every human society seeks to secure for its inhabitants. The reciprocity of a legal right and the restitution or restoration of said right in the manner of a remedy is the primary implication of the doctrine. In simple words, a right and a remedy must ideally coexist in order for justice to be imparted fairly. But idealism throughout the years has proven to be a myth and the remedy in most occasions has proven to be an obstruction rather than an aid to justice.
R.C.Lahoti, an established judge and a previous Chief Justice of India, observed, “Procedural law cannot betray the substantive law by submitting to subordination of complexity.”
But this observation has emerged as normative as opposed to practical as proven from the existence of multiple facets of the same problem of delay of justice arising out of formalism, lack of logistical support, corruption of law enforcement officials, prolonged detainment of under-trial prisoners
, high cost of court and legal counsel fees, and many others. Remedial institutions, mechanisms and procedures should strive to consolidate substantial legal principles it aims to achieve through its nature and rise above its current practise of empty formality.
The biggest aspect of delay in justice which actively contributes to the wider problem of denial of justice is the large number of Indian citizens stuck in their transition from under-trial detainees to convicts. The apparent delay in judicial mechanisms and sluggish working of courts results in such individuals to be detained for long periods of time without any proof of guilt and on many occasions, simply by the reason of suspicion of having committed an offence. This is the root cause of increase in jail population risking the health, hygiene, security and the basic rights of the prisoners in India. The percentage of occupancy rate based on official capacity in Indian prisons is 128% and it is perhaps the fact that more than 50% of the prison population consists of under trials prisoners which is the most alarming.
“Framed as a Terrorist”, a book authored by Mohammed Aamir Khan
provides, in explicit detail, the wide array of human rights violations carried against him during his detention as an under-trial prisoner which lasted for a shocking 13 years and 10 months and was later discharged as a result of the charges of murder, terrorism and waging war against the nation being dropped against him. In his book, he gives a painful description of what seems to be an illegitimate abduction rather than an arrest and denial of basic human rights to the extent of removing his fingernails and subjecting him to electric shocks and various other forms of torture. Mohammed’s experience is one amongst many, wherein the State has resorted to terrorism itself as means of combating it. It has allowed the agencies operating under it to become the law instead of merely implementing it,with the purpose of incriminating individuals of a certain religion in certain crimes coming under the purview of terrorism-related legislations through physical and mental torture thereby forcing them to submit and confess to crimes they never committed to expedite or completely forego long procedural delays in the administration of justice.
Another issue contributing its own share in reducing the legal system’s efficacy is the unreasonably high costs associated with justice and the bail system that discriminates against the poor and continually deprives their personal liberty for the reason of financial poverty. Individuals awaiting trial who come from a financially weaker background often languish longer in jail due to their inability to produce enough money to make bail, sometimes even beyond the maximum period of punishment for the alleged offence. Lawyers and litigators have started their own racket of charging hefty amounts per appearance and getting adjournments on every motion, thus indefinitely postponing the delivery of justice. Litigants, owing to inadequacies in the legal aid system resort to hiring private representation which comes with exorbitant costs of it’s own which further eludes justice by placing it on a pedestal only accessible to the financially well off.
At the very crux of the prevalent delay in justice is the high proportion of cases pending in courts. According to a report by the Law Commission, there were 10 lakh cases pending in the 24 High Courts all over India, many of them pending for 20 years or more. The current disposal of cases altogether by all the High Courts together make up for only 6% of the cases older than 10 years. The huge backlog of cases brings to light the inadequacy in the current judge strength. For example, Bihar itself requires an additional 1624 judges to clear it’s backlog in the upcoming 3 years.
The dissatisfactory working of the judicial system brings about a delay in justice, a virtue which lies at the very base of Indian society, it’s order and stability. This delay has planted a seed which if not looked into properly will blossom into a full-blown loss of confidence in the judicial system which in turn will necessitate an era of lawlessness and anarchy. There exists various reforms that the State can institute. Alternate dispute resolution mechanisms such as Lok Adalats have opened up new opportunities for ensuring speedy justice. The concept of plea bargaining is being introduced through an amendment in the Criminal Procedure Code which seeks to mutually dispose off a criminal case and avoid lengthy prosecutions whereby the accused pleads guilty to a lower charge and accepts certain facts which eliminate the need for them to be validated through subsequent examination and cross-examination.
In 2009, a Vision Document was adopted in New Delhi where a National Mission was formulated to enhance accountability in the justice system by reducing pendency
of cases and improving the standards and structure of judiciary institutions. Delays in justice have come about due to complexities in the judiciary mechanisms and practises, repeated adjournments and plain procrastination at the hands of all stakeholders involved. It is high time we, as the citizens of a country which has proudly carved “JUSTICE” in the Preamble of it’s constitution proclaiming it as one of the virtues of an Independent India, stop pleading for it and start demanding it.
Written by- Rashmi Birmole
ILS Law College, Pune