Submission for NIRMA University Student Law Review
Author: Pranav Menon
III Year
NALSAR University of Law, Hyderabad.
The submitted piece is to be categorized as an Article
Right to an Expeditious Trial in India vis-à-vis United States of America –
A Comparative Study
Pranav Menon*
Justice delayed is justice denied – Sir William E Gladstone
Abstract
The concept of a speedy trial facilitates in acquiring justice to both
parties in a proceeding. However, this right, even though has been read
into Article 21 of the Indian Constitution after borrowing it from the
Constitution of the United States of America, it has not been effectively
enjoyed by the citizens of India due to faulty implementation on part of
the government. This non realization has especially affected under trials
in India, who are languishing and rotting in prison, some of them not even
guilty of an offence, awaiting their turn for their first hearing in a
trial. This paper looks to compare the right to speedy trial as realized in
India to the United States of America and seeks to provide some
alternatives for its progressive enjoyment.
Introduction
The idea of justice being done, apart from the common perception of
punishing the wrongdoer, subsumes the swiftness at which it is administered
and includes the acquittal of innocent too. Speedy and fair justice is sine
qua non of criminal jurisprudence as it runs not only in the best interests
of the accused but also the victim and the prosecution.[1] The right to an
expeditious trial is recognized as a common law right, which has references
to the 12th Century owing to presence in Magna Carta,[2] is incorporated in
the laws of various countries such as the United States, United Kingdom,
Australia, India, Canada, New Zealand, etc.[3] This right also finds its
way into various international instruments and human rights treaties, most
notably Article 14 of the International Convention for Civil and Political
Rights and Article 3 of the European Convention of Human Rights.[4]
In India, however, although this right has been read into Article 21 of
the Constitution[5], there has been no substantial progressive realization
of the same. Although the Supreme Court[6] has emphasized the importance of
this right in numerous cases highlighting its activist nature[7], little
concern has been showing regarding execution of these judicial decisions.
The pendency of cases although reduced slightly in the SC, the increasing
logjam of cases in the High Courts and especially the subordinate courts is
alarming indeed.[8]
Owing to the huge backlog of cases, judicial delays are endemic in this
country and one cannot expect to attain justice in a fairly reasonable
timeframe. Delay in disposal of cases not only creates disillusionment
amongst the litigants, but also undermines the very capability of the
system to impart justice in an efficient and effective manner. This also
results in overcrowding of prison facilities, which are already in a
pitiable state, by under trials, who pointlessly bear the brunt of
languishing in these jails for an unspecified and long period.
This paper essentially aims to compare the right to speedy trial,
although provided for in the Constitution but not effectively realized in
India to the United States of America[9] where it is being actually enjoyed
by the people. It also wishes to expound upon the various measures the
government needs to pursue to ensure that this right is made available to
all, especially to an under trial accused. The researcher would like to
rely on statistical data to highlight the existing judicial delays in
India. As Henry Shue explains, a mere proclamation of a right is not
sufficient for its actual enjoyment, it must be effectively realized by the
people to whom the right is made available to.[10]
For a better understanding of the aim of this paper, the researcher would
like to divide it into four principle sections viz., Part IV would analyse
the evolution of the right under Article 21 through various judicial
decisions; Part V highlights the failure on part of the government to
effectively implement this right; Part VI intends to understand this right
as available in USA; and Part VII suggests some measures for the Indian
government, drawing slightly from the USA, for appropriate fulfillment of
this right and conclude this paper.
The evolution of the right to speedy trial
Speedy Trial as such is not a specific right guaranteed under the
Constitution, the Criminal Procedure Code[11] or any existing statute in
India. Although the drafters of the Constitution did discuss due process,
right to life and other rights of accused, they did not mention the notion
of speedy trial as a separate right.[12] In the first two decades after
independence, the court showed no interest about the length of the time
spent in prison by under trial detainees and often maintained a low
threshold for the prosecution to meet.[13] In fact, during the emergency,
the court caving into the government's demands specifically ordered not to
provide expeditious trials to the opponent politicians and others arrested
during this period.[14]
However, after the expansive view of Article 21 taken by the SC in Maneka
Gandhi[15], it was in the Hussainara Khatoon cases[16], where Bhagwati J.
observed that no procedure which does not ensure a reasonably quick trial
can be regarded as 'reasonable, fair and just' and will be violative of the
right to life enshrined in the Constitution, since this right is implicitly
present in the content therein. Although there was no explicit mention of
the source of borrowing this interpretation, it was understood that
Bhagwati J. essentially reiterated the right as available in the Sixth
Amendment made to the Constitution in USA, when it came into force. In
these cases, the SC mandated that government to fulfill its duty to ensure
speedy trial irrespective of financial constraints, provide for greater
access to bail, specific timeline for completion of investigation[17],
release of under trials on completion of maximum term, right to free legal
aid, humane living standards in prisons etc. In Kadra Pahadiya[18],
reemphasizing this right, the SC commented, 'It is a crying shame upon our
adjudicatory system which keeps men in jail for years on end without a
trial.' In Sheela Barse[19], the court held that in cases where the court
recognizes that the right to speedy trial of an accused has been infringed,
the charges or conviction shall be quashed.
The SC in A.R. Antulay[20], while providing for certain non exhaustive
guidelines regarding this right, explicitly held there cannot be any time
limit within which the trial ought to be completed but it is the obligation
of the state to proceed with the case with reasonable promptitude. Some of
the propositions of the court were right to speedy trial was in public
interest for any citizen including an accused, encompasses all stages of a
criminal proceeding[21], delay in proceedings can often work for benefit of
accused, for determining delay attendant circumstances to be considered,
accused cannot demand the court to try him, objection based on denial of
right to speedy trial to be first addressed to the High Court.[22]
Over the last two decades, the courts has furthered its commitment to
enhancing the rights of under trials by releasing them if they had already
spent half the period of maximum punishment of an offence as it amounted to
denial of the right to speedy trial.[23] The parliament thereafter, in
furtherance of these decisions, through an amendment in the CrPC in 2005
provided for a maximum period for which an under trial can be detained.
Despite the SC carrying forward this trend in the 2000s with favourable
judicial pronouncements,[24] and parliament enacting laws for reiterating
this basic human right drawing from how it has been implemented in USA,
these rulings and laws have not translated to cherished results which the
right ought to provide.
Faulty implementation and ineffective incorporation of the right by
Government
As per a recent study conducted by the Law Ministry, out of the 4.3 lakhs
prisoners in India, a startling 3 lakh prisoners are under trial detainees,
resulting in overcrowding.[25] Among these prisoners, some of them are
waiting for their trial to commence for the past five years and quite a few
of them haven't even been bought before a Magistrate for bail or
remand.[26] Although this problem has been understood long ago and there
have been recommendations that a criminal proceeding must ideally be
completed within a period of six months[27], the condition of under trials
has in fact worsened.
One of the major reasons attributed for the increasing pendency in courts
is the inadequacy of judges and failure to fill up vacancies in courts. The
existing judge population ratio in India is 10.5:13 per million people as
against 50 judges per million people in many parts of the world.[28] Apart
from the aforementioned problem, reasons for poor rates of disposal of
cases due to judges' actions are inadequate knowledge among judges
regarding guidelines laid down for an expeditious trial, lack of
punctuality, laxity and lack of control over the case file and the court
proceedings, grant of unnecessary adjournments, failure to adopt
information technology in courts and corruption within the judiciary.[29]
The other factors hindering the effective realization of the right to
speedy trial are systemic delays, unsatisfactory bail system, lack of
witness protection resulting in their absence, problem of legal aid for
accused, frivolous complaints filed due to personal grievances, unethical
practices of legal practitioners, shortage of police officials as escort
services to produce accused at the time of hearing, etc.[30] Although, the
government launched the Fast Track Courts Scheme to try long pending cases
in 2001, there have been doubts raised about their efficacy in curtailing
judicial delays due to the substandard quality of judgments.[31]
The right to an expeditious trial in the United States of America
The foundation of USA's criminal procedure finds origin in the Bill of
Rights, particularly the Fifth, Sixth and Eighth amendments to the
Constitution. The Sixth Amendment explicitly guarantees defendants a speedy
and public trial by an impartial jury of the state and district wherein the
crime shall have been committed.[32] The SC has held that the due process
clause in the Fourteenth amendment makes this right binding on all
states.[33]
It was not until 1970s when the SC in Barker v. Wingo[34], held that the
right to be analysed on a case to case basis and a fourfold criteria was
put forth viz., length of delay, reason of delay, assertion of the right by
defendant and degree of harm caused to him had to be fulfilled to put forth
a speedy right violation claim. Shortly after this decision, the federal
Speedy Trial Act, 1974[35] was enacted which codified a series of
requirements under which a defendant's case had to move forward upon an
arrest and surprisingly even exceptions to which judges could toll the
rules in the act.[36] Statutes of limitation, not the speedy trial right,
govern the delay between commission of a crime and the filing of
charges[37] and the Constitution merely dictates that there must not be
undue delay between indictment and trial.
Although like India, the SC of USA has not specified any definite period
for the trial to commence, it empowers every state has a speedy trial law
that establishes time constraints within which the prosecution and the
courts must bring the defendant to trial.[38] One major advantage of the
American criminal justice system is that the fact it is an adversary
system, a minimal number of accused are held as under trial prisoners,
since these accused possess a possibility of flight. However, the bail
bonds set for a serious crime offender are extremely high owing to the risk
he is to the community as a whole.[39] The presence of twenty specialized
federal law enforcement agencies with advanced training is an important
factor for speedy investigation and fast access to justice to both
parties.[40]
Until recently, the laws in the USA only provided for the right to an
expeditious trial to the accused and not the victim. However, in the recent
amendment carried out in some of the states, a specific right was created;
directing courts and tribunals to keep in mind the considerations and
interests of victims in avoiding unreasonable delay.[41] The wide practice
of plea bargaining which developed in USA, also helps in furthering the
cause of quicker disposal of cases and provides for adequate remedy to the
victim.[42]
The USA also however has its fair share of criticisms in the enactment of
the Sixth Amendment. The courts in the USA rarely find reasons for speedy
trial violations, since they have to free the accused in cases where such a
violation is proved and do not want a guilty person to walk away free.
Hence, the SC allows the lower courts absolute discretion with regard to
deciding speedy trial violation claims.[43] In a recent decision by a New
York court, due to ambiguity regarding the time limits of when a speedy
trial violation claim is reasonable, the judge declared five years without
trying the accused did not amount to violation for the mere reason that it
did not affect the defendant's case.[44] The laws of Sixth Amendment also
surprisingly do not apply in Guantanamo Bay, which is one of the largest
torture prisons of the world, showing the inherent hypocrisy in USA's stand
for speedy trial.[45]
Suggested measures for effective realization of the right
Throughout the last three decades, ample number of proposals and
committees[46] has been setup to address backlog in criminal trials
providing for overlapping solutions and reiterations of the prior ones.
Although these solutions have failed to translate into actual policy
changes due to lack of political will, insufficient devotion of resources
to make such substantive alterations, and no uniform enforcement of those
few initiatives that have been codified. A recent initiative proposed by
the Law Ministry, i.e. the release of under trial prisoners charged with
petty crimes and who had been incarcerated roughly for one-half of the time
that a formal sentence would have brought were there a conviction, seems
like a results oriented approach. [47]
Some of the measures suggested by CHRI[48] for criminal process to proceed
in a timely manner are use of technology and video conferencing to conduct
trials between jails and courts, creation of statutory committees to solely
look into the rights of detainees to oversee their well being and
facilitating their cases, institution of jail adalats etc.[49] Apart from
these some other solutions, the researcher opines that appropriate
application of the bail provisions under the CrPC, providing for pro bono
legal services, relook the strategy adopted for the Fast Track Courts and
provide for other alternate dispute regulation mechanisms, extend the scope
of plea bargaining, create shift system without changing infrastructure of
courts, tightening circumstances under which police may arrest, etc.
Conclusion
A question is often asked with regard to the failure to provide this
constitutional safeguard is whether the Indian judicial system is
inherently defective or whether the problem lies with the practitioners of
the system. Although, the right was borrowed from the USA, to implement in
a similar way and effectively realize it, substantial amount of effort will
be required from the Indian government. The author believes that all bodies
of state, including the people, must play an equal part in curtailing this
problem rather than pointlessly accusing each other. The existing laws with
regard to under trials must be strictly followed. The recommendations
suggested by the various committees should be put to use. The courts should
show its activism in the true sense with regard to this issue. The
government should make some proactive measures with respect to advancing
infrastructure in courts and prison facilities. There has to be collective
efforts in order for the actual enjoyment of this right as envisaged in
Constitution. Thus, it is rightly propounded by Potter Stewart that Swift
justice often demands more than just swiftness.
-----------------------
* The author is a III year student of Nalsar University of Law, Hyderabad.
[1] M.L. Sharma, On Justice Delayed, Joint Director CBI, Vol. 3,
Faultlines,
http://www.satp.org/satporgtp/publication/faultlines/volume3/Fault3-
MLSharmaF.htm# (last visited on 22nd August 2011).
[2] Darren Allen, The Constitutional Floor Doctrine and the Right to a
Speedy Trial, 26 CAMPBELL L. REV.
101, 103 (2004).
[3] K Jayachandra Reddy, One Hundred and Fifty Fourth Report, Chairman,
Fourteenth Law Commission of India, pp. 161-66, Chapter XIII paras 8 & 9
(1996).
[4] Ritesh Thusu, Speedy Justice, March 2008, www.jurisonline.in (last
visited 21st August 2011).
[5] Hussainara Khatoon (I) to (VI) v. Home Secretary, Bihar, (1980) 1 SCC
81, 91, 93, 98, 108 & 115. (Hereinafter 'Hussainara Khatoon Cases').
[6] Hereinafter 'SC'.
[7] A.R Antulay v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo Sharma v. State of
Bihar, AIR 1998 SC 3281; Common Cause, A Registered Society v. Union of
India, AIR 1996 SC 1619; Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939;
Sheela Barse v. State of Maharashtra AIR 1986 SC 1773; Kartar Singh v.
State of Punjab, (1994) 3 SCC 569.
[8] Jayati Ghosh, Keeping a Watch on Our Institutions, Frontline, Vol. 20,
Issue 13, July 2003.
[9] Hereinafter 'USA'.
[10] Henry Shue, Basic Rights in Basic Rights: Subsistence Affluence and US
Foreign Policy, p.19, Princeton University Press, (1980).
[11] Hereinafter 'CrPC'.
[12] Transcript of the Constituent Assembly Debates, Volume VII, at 1-20
(Dec. 6, 1948),
http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm (last visited 22nd
August 2011).
[13] Madhu Limaye v. S.D.M., Monghyr, (1970) 3 SCC 746.
[14] S.P. Sathe, Judicial Activism in India: Transgressing Borders and
Enforcing Limits, (2002), Oxford University Press, New Delhi.
[15] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[16] Supra note 5; These series of cases came up when under trials had
served a period in jails longer than the punishment they would have
received had they been convicted for the offence.
[17]Reiterated in Kartar Singh v. State of Punjab, supra note 6. The stages
of investigation defined in order to specify the period from when an under
trial is deprived of his life and liberty which encompasses the right to
speedy trial.
[18] Kadra Pahadiya v. State of Bihar, supra note 6. In this case, several
detainees were languishing in jail for 8 years w/o any progress in the
trial.
[19] Sheela Barse v. State of Maharashtra, supra note 6.
[20] A.R. Antulay v. R.S. Nayak, supra note 6. Although such time limits
were prescribed in Common Causes cases, this is the existing precedent with
respect to this right since the facts and circumstances of each case must
be understood. As held in P. Ramachandra Rao v. State of Karnataka (2002) 4
SCC 578; See also, T.Padmanabha Rao, Verdict in Antulay Case still holds
field: SC, Correspondent, The Hindu, April 2002, www.hindu.onnet (last
visited 22nd August 2011).
[21] Reiterated in Raj Deo Sharma v. State of Bihar, supra note 6.
[22] M.P. Jain, Indian Constitutional Law, p. 1200 – 02, ed. by Ruma Pal J.
& Samaraditya Pal, 6th Edn., 2010, LexisNexis Butterworths Wadhwa Nagpur.
[23] Supreme Court Legal Aid Comm. v. Union of India, (1994) Supp. 4 S.C.R.
386.
[24] Parekh v. Central Bureau of Investigations, (2009) 15 S.C.R. 1105;
R.D. Upadhyay v. State of Andhra Pradesh, A.I.R. 2006 S.C. 1946.
[25] Mr. Veerappa Moily, See 92,000Undertrial Prisoners Released Across
India, Minister for Law and Justice, IGOVERNMENT, May 27, 2010,
http://igovernment.in/site/92000-undertrial-prisoners-released-across-india-
37660 (last visited 23rd August 2011).
[26] H.R Khanna J., Seventy-Eighth Report: Congestion of Under-Trial
Prisoners in Jails, Chairman, 8th Law Commission of India, p.5, (1979),
http://lawcommissionofindia.nic.in/51-100/Report78.pdf (last visited on
23rd August 2011).
[27] H.R Khanna J., Seventy Seventh Report: Delays and Arrears in Trial
Courts, Chairman, 8th Law Commission of India, (1978),
http://lawcommissionofindia.nic.in/51-100/Report78.pdf (last visited on
23rd August 2011).
[28] Malimath J., Committee on Criminal Justice Reforms, Ministry of Home
Affairs, Govt. of India, Vol. 1, (2003).
[29] D.A. Desai J., One Hundred and Twentieth Report: Manpower planning in
Judiciary, Chairman, Law Commission of India (1987)
http://lawcommissionofindia.nic.in/51-100/Report78.pdf (last visited on
23rd August 2011).
[30] R Sreekumar, Access to Justice for Under Trial Prisoners: Problems and
Solutions, Project Officer, Prisons and Human Rights programme, CHRI, 5-9
(2002),
http://www.humanrightsinitiative.org/index.php?option=com_content&view=artic
le&id=103&Itemid=55 (last visited on 24th August 2011).
[31] An apt example for the inefficiency of Fast Track Courts is the Best
Bakery Case. See, Madabhushi Sridhar, Miscarriage of Fast Track Justice,
Faculty, Nalsar University of Law, www.legalserviceindia.com (last visited
23rd August 2011)
[32] Akhil Amar, Sixth Amendment First Principles, 84 GEO. LJ. 641 (1996).
[33] Klopfer v. North Carolina, 386 U.S. 213 (1967).
[34] 407 U.S. 514 (1972).
[35] 18 U.S.C. § 3161-3174 (1974).
[36] Jayanth Krishnan & C. Rajkumar, Delay in process, Denial in Justice:
The Jurisprudence and Empirics of Speedy Trials in Comparative
Perspective, 42 Georgetown Journal of International Law (2011).
[37] Susan N. Herman, The Right to a Speedy And Public Trial: A Reference
Guide To The United States Constitution, 223 (2006).
[38] Rudy Castillo, Asylum and Angels: A defendant's right to speedy trial,
San Antonio Lawyer, p.6, May-June 2010
[39] James B Jacobs, The Evolution of U.S. Criminal Law, in Criminal
Justice in the U.S., Issues of Democracy, IIP Electronic Journals, Vol. 6,
No. 1, July 2001.
[40] Ibid.
[41] Charles Doyle, 'Victims' Rights Amendment: A Proposal to Amend the
United States Constitution in the 108th Congress', CRS Report for Congress,
2004, RL31750.
[42] Chin & Holmes, Effective Assistance of Counsel and the Consequences of
Guilty Pleas, 87 CORNELL LAW REVIEW 697, 698 n.2 (2002).
[43] http://www.revolutionary-war-and-beyond.com/speedy-trial-clause.html
(last visited 24th August 2011).
[44] United States of America v. Ahmed Khalfan Ghailani, S10 98 Crim. 1023
(LAK).
[45] Tom Head, The Sixth Amendment, Civil Liberties,
http://civilliberty.about.com/od/lawenforcementterrorism/p/6th_amendment.htm
(last visited 24th August 2011).
[46] Jails Committee Report, 77th & 78th Law Commission Reports, Mulla
Committee, Proposal by NHRC, Malimath Committee etc.
[47] Vaibhav Vats, 136,217 Prisoners, in for Petty Crimes, Have Been Set
Free in a Drive that Ends in a Few Days. Will Freedom Reform Them? Or Will
They Come Right Back to Jail?, TEHELKA, July 31, 2010,
http://www.tehelka.com/story_main46.asp?filename=Ne310710undertrial.asp.
(last visited 25th August 2011).
[48] Abbreviation for Commonwealth Human Rights Initiative.
[49] Supra note 36.
