Justice
Hurried Is Justice Buried
[*]P.S. Khurana
Justice Arjan Kumar Sikri, after taking over as Chief
Justice of the Punjab and Haryana High Court, remarkably stated “Justice
Hurried is Justice Buried[1]”.
Immediately to my mind strikes “Justice Delayed is Justice Denied”. Are these
two jurisprudential concepts are antithesis?
Justice is a generic term, which includes both
substantive and procedural justice. In our Constitution, Justice sets the
ultimate goal for all of us to serve the nation. It is blend of both natural
and social justice, which is evident from the Preamble and Part IV of the
Constitution of India. The concept of Justice, though so significant, is used
only twice in our Constitution i.e. in the Preamble and in Article 39-A.
The preamble sets out as[2]
“to secure to all its citizens-Justice-social,
economic and political.......”
Article 39-A[3]
envisage that:-
“The State shall secure that
the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities”.
There are more than 3.5 crore cases pending in the Courts
in our Country. About 50 lakhs in the High Court, 45 lakhs in the Supreme Court
and about 2.5 crore in the Subordinate Courts in India.
The Union Law Minister in his reply to a question in Lok
Sabha about the reasons for increase in pendency[4].
These include:-
(i) increase
in institution of fresh cases;
(ii) inadequate
number of Judges and vacancies;
(iii) inadequate
physical infrastructure and staff, and
(iv) frequent
adjournments
The steps are being initiated to overcome this problem of
huge pendency of cases. The Courts are pressed upon hard from all sides to
dispose of the cases at the earliest and decrease the pendency of cases. The
Principle/ Concept sloganned is “Justice
Delayed is Justice Denied”, which has emerged in the jurisprudential theory
of India by way of interpretation of Article 21 of the Constitution of India by
Supreme Court.
Article 21[5]
envisages as:-
“21. Protection of life and
personal liberty.-No person shall be deprived of his life or personal liberty
except according to procedure established by law”.
The two most important issues pertaining to the present
topic, emanating from the interpretation of this Fundamental Right (Art.21) by
the Supreme Court are First, Speedy justice as Fundamental right and Second,
Procedure established by law must be just, reasonable and fair. Indirectly the
due process clause of American Constitution has been introduced.
A fair trial implies a speedy trial. No procedure can be
reasonable fair or just unless “that procedure ensures a speedy trial for
determination of the guilt of such person[6]”.
The Supreme Court has observed:-
“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 doubts 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[7]”.
The procedure contemplated by Article 21 is that it must
be “right, just and fair and not arbitrary, fanciful or oppressive. In order
that procedure be right, just and fair, it must confirm to natural justice[8]”.
Processual law is not to be a tyrant but a servant, not
an obstruction but an aid to justice. A procedural prescription is the handmaid
and not mistress, a lubricant, not a resistant in the administration of justice[9].
The Court could do away with a technicality coming in the
way of substantial justice, the entire procedure governing a civil or criminal
proceeding should not be considered a mere formality or technicality. Because
once the court start belittling the significance or procedure, the ability to
appreciate its relevance and value to the administration of justice and,
resultantly, the respect for procedure would start declining and disregarding
the procedure considering it, another impediment in the dispensation of speedy
justice and wastage of court time. The object is to expedite the hearing and
not to scuttle the same[10].
‘Delay’ in the context of Justice denotes the time
consumed in the disposal of case, in excess of the time within which a case can
be reasonably expected to be decided by the court. In an adjudicatory system,
whether inquisitorial or adversarial, an expected life span of a case is an
inherent part of the system. No one excepts a case to be decided overnight.
However, difficulty arises when the actual time taken for disposal of the case
far exceeds its expected life span and that is when we say there is delay in
dispensation of justice. A scanning of the figures would show that despite
efforts being made at various levels and substantial increase in the output
being given by the system, the gap between the expected and actual life span of
the case is only widening[11].
The process, if compromised, in any manner, then the
victim is the ‘Sovereign’. Haste during the legislative or judicial process may
have disastrous effect on the due process of law.
The efforts have been made to provide speedy justice and
to decrease the pendency of cases by many ways and means like:-
(i) increasing
the number of courts;
(ii) establishing
fast track courts;
(iii) filling the vacancies at the earliest
possible time both of the Judicial side and
non-judicial staff.
(iv) better infrastructure with assistance of
latest technology;
(v) Enhanced and better perks and facilities
for judicial echelons;
(vi) popularizing
and creating acceptance of the alternative modes of settlements viz-mediation,
arbitration or conciliation etc.;
(vii) establishment
of evening courts to deal with particular nature of cases.
What needs to be done is to increase the efficiency in
the judicial system, placing the emphasis on delivering justice in the minimum
time and not simply pressurized into delivering more decision in least time.
The procedure must be to assist in the organized, fair
and transparent conduct of court proceedings. The emphasis should be on the
timely and just early completion of proceedings. The law must take into own
course and the judicial process and procedure be not tickled away in any
manner. This does not mean that no innovations or modifications to the existing
process. Such new techniques has to be resorted and followed likes:-
(i) increase
in number of judges;
(ii) minimize
the frivolous adjournments;
(iii) prioritization
of cases depending upon the nature of case;
(iv) create
a culture among the litigants/ people at large and Courts in particular that
time is the essence of proceedings;
(v) increasing
number of working days in courts by cutting down holidays;
(vi) legislature,
while making new laws, either creating new rights, disabilities, penalties or
offence etc., must make provisions for increase in number of courts,
infrastructure, staff etc. to deal with the cases likely to arise on the basis
of the new legislation;
(vii) a
long term, extensive and thoughtful planning and no adhochism.
The justice cannot be met with the establishment o more
courts, more judges and quicker and shorter procedures unless they are all
charged at providing substantial and complete justice.
For an effective justice dispensation system, the courts
should be made more efficient to deliver justice in a ‘timely’ and not a
‘hurried up’ manner. Thus we may say, these jurisprudential concept are
complimentary to each other and have co-existence in the dispensation of
justice.
___________
[1]
The Tribune, dated September 23, 2012.
[2]
Constitution of India.
[3]
Inserted by the Constitution (Forty-second Amendment) Act, 1976, S.8(w.e.f.
3.1.1977). Constitution of India.
[4]
Lok Sabha unstarred question No. 2569 (November 25, 2010)
[5]
Constitution of India
[6]
M.P. Jain Indian Constitutional Law, Vol. I, page 1275.
[7]
Husssainara Khatoon & Ors. vs Home Secretary, State of Bihar, 1979 AIR
1369, 1979 SCR (3) 532.
[8]
Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569.
[9]
Sambhaji and others V. Gagabai and others, 2009(1) R.C.R. (Civil) 382, para 12.
[10]
Supra 9.
[11]
Justice Sobhagmal Jain Memorial Lecture on Delayed Justice, delivered by
Hon’ble Sh. Y.K. Sabharwal, Chief Justice of India, on 25.7.2006.
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