Look at this. A 23-year old Indian student, Anuj Bidve, was killed near Manchester in U.K. on 26 December 2011. This was an unfortunate incident, no doubt. On 27 July 2012, his killer Kiaran Stapleton, was convicted and sentenced with life imprisonment by a Manchester court, and he will have to serve a minimum of 30 years in prison. So, the trial and conviction took only 7 months (in fact, this includes the period of investigation also).
What happens in India? Take a typical case which is in news nowadays. The then Railway Minister L.N. Mishra was murdered in a bomb blast at Samastipur in Bihar on 2 January 1975. We’re now in 2012. A period of 37 years and still counting. The trial is yet to be completed. One does not know how much more time this trial will take to complete. One of the accused in this case, Ranjan Dwivedi, was 27 years old when this incident took place in 1975, and now he is 64 years old, waiting for the trial to be completed. Don’t forget that this was an important case since a Minister was killed in the incident. And, at the time of this writing, our Supreme Court is yet to decide as to whether a period of 37 years amounts to be a violation of the right to speedy trial. A delay of 37 years in a trial may appear to be a case of gross delay even to a layman. This is irrespective of whether the delay was on account of the accused or the prosecution or the system (who makes the system, by the way?). For, even if the delay is mainly on account of the accused and he has deliberately caused this delay, the question that arises is – why did the judiciary allow him to cause and/or get away with such an inordinate delay? Even if the accused seeks an adjournment, why not give an adjournment of only a day or two, as mandated under Section 309 of the Criminal Procedure Code (which requires day-to-day trial)? So, ultimately, the judiciary has to take the blame. But, it is not to be. The said delay of 37 years does not appear to be a case of gross delay, per se, to the Supreme Court, since the Indian standards on delays are entirely different. So, the reasons for this delay will have to be examined in detail to decide whether it amounted to denial of the right to speedy trial, says the Supreme Court.
It is pertinent to point out that unlike U.K., which does not have a written Constitution, we in India do have a detailed written Constitution. And, one of the most important provisions (perhaps THE most important provision) in this Constitution is the fundamental right to life and personal liberty guaranteed under Article 21 thereof. In several cases, the Supreme Court has interpreted Article 21 to include the right to speedy trial.
In the case of Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81 (at pp. 88-89), it was held by the Supreme Court that speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution. At p. 88 of SCC, it was held that:
“There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough: how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.”
It was further observed (at p. 89 of the SCC) that:
“No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”
Mark the words. In 1980, the Supreme Court said that “Even a delay of one year in the commencement of the trial is bad enough…” (emphasis is mine). And, now in 2012, the Court is not satisfied with 37 years being a long enough delay, per se!
In the subsequent case of Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 (at p. 107) : 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : 1979 Cri LJ 1045, the Supreme Court reiterated that that speedy trial is an essential ingredient of “reasonable, fair and just” procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. It was further observed (at p. 107 of the SCC) that:
“The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Malcolm, 377 F Supp 995: “The law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty”.”
The Hon’ble Supreme Court further observed (at pp. 107-108 of SCC) that:
“The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures calculated to ensure speedy trial.”
Well said. That was way back in 1980. However, a good 32 years later, in 2012, we’re nowhere near that goal of speedy trial. In fact, the situation has worsened. The aforesaid L.N. Mishra case, which was pending in 1980 for 5 years, continues to be pending even in 2012, after tons of paper have been used in law reports reporting Supreme Court judgments on the right to speedy trial as mentioned in the following paragraphs.
In fact, there are many subsequent cases in which the Supreme Court repeatedly reiterated the principle of speedy trial being a fundamental right. Some of these cases are (this is not an exhaustive list of such cases): State of Bihar v. Uma Shankar Ketriwal, (1981) 1 SCC 75 : 1981 SCC (Cri) 108 : (1981) 2 SCR 402; Kadra Pahadiya v. State of Bihar, (1983) 2 SCC 104 : 1983 SCC (Cri) 361; State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610 : 1981 SCC (Cri) 762 : (1982) 1 SCR 299; T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2 SCR 348; Sheela Barse v. Union of India, (1986) 3 SCC 632 : 1986 SCC (Cri) 352 : (1986) 3 SCR 562; and Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : 1986 SCC (Cri) 511 : (1986) 3 SCR 802.
Then again, in the case of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701 : 1992 Cri LJ 2717, while upholding that speedy trial is covered in Article 21 of the Constitution, a Constitution Bench of the Hon’ble Supreme Court observed (at pp. 267-8 of SCC) that:
“Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch — reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes.”
In the said case, the Hon’ble Supreme Court also observed (at p. 270 of SCC) that right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. The Hon’ble Supreme Court laid down certain guidelines for dealing with the cases where violation of the right of speedy trial is complained of.
In the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (at page 638), the majority decision of a Constitution Bench of the Hon’ble Supreme Court observed that:
“The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial.”
It was further observed by the majority decision (at p. 638 of SCC) that:
“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 the 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 impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.”
In the case of P. Ramachandra Rao v. State of Karnataka,(2002) 4 SCC 578, decided by a 7-Judges Constitution Bench of the Hon’ble Supreme Court, it was observed (at page 587 of SCC) that:
“The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and retrial — in short everything commencing with an accusation and expiring with the final verdict — the two being respectively the terminus a quo and terminus ad quem — of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak.”
In this case, the Hon’ble Supreme Court upheld and reaffirmed (at p. 603 of SCC) the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the aforesaid A.R. Antulay case.
In this case, the Hon’ble Supreme Court also observed (at pp. 603-4 of SCC) as under:
“This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary — quantitatively and qualitatively — by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.”
While reminding all concerned about the aforesaid observations of the Hon’ble Supreme Court in the said case of Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 (at p. 107) : 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : 1979 Cri LJ 1045, the Hon’ble Supreme Court further observed in the said P. Ramachandra Rao case (at p. 604 of SCC) that:
“It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the preamble of the Constitution as also from the directive principles of State policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system.”
So, the Supreme Court is never found lacking in emphasising the right to speedy trial being an important constitutional right. What is the ground reality, however? There were a total of about 2 crore or 20 million criminal cases (to be precise, 19836287 cases) pending in the lower courts in India as on 30 June 2011, as per the latest quarterly Court News (Vol. VI, Issue No. 3, July-September, 2011) newsletter officially published by the Supreme Court.
So, in spite of so many rhetorical judgments of the Supreme Court declaring the right to speedy trial being an important fundamental right, this right remains an illusory right for millions of accused persons facing criminal trials in India. With respect, I may humbly submit that the Supreme Court has done precious little to enforce this basic fundamental right by issuing binding mandamus (and also ensuring their compliance) to various Governments in India to create sufficient number of courts, or to otherwise ensure compliance of the right to speedy trial so that the trial should be completed latest within one year (barring in some rarest of rare cases wherein the number of witnesses and/or of documents is quite large or for some other exceptional reasons). Otherwise, the declaration of the right to speedy trial being a fundamental right is nothing but a cruel joke in the absence of its enforcement. Is it not said that a legal right is of no meaning in the absence of a legal remedy?
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