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Miscarriage of Fast Track Justice

Written by: Dr.Madabhushi Sridhar, Faculty, NALSAR University of Law, Hyderabad
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The comment of Justice A.S. Anand, former Chief Justice of India and Chairman National Human Rights Commission that the acquittal decision in Best Bakery trial by a fast track court as 'miscarriage of justice', is not confined to just that case only, but can be extended to entire mechanism of so called fast track courts as envisaged by earlier NDA government and now being scrapped by the present UPA administration. The State did very less in bringing the justice back on to the right 'fast' track, and it is difficult for common man to comprehend the question that when he would get final justice in either criminal or civil litigation.
The decision to allow the fast track courts to disappear by the end of April, a year in advance than the scheduled time of five years, by starving them of funds as the Twelfth Finance Commission did not recommend any allocations, will put a full stop to the experiment without finding any viable alternative or doing anything to dispose of pending cases.

Alarming Pendency
The number of pending cases is indeed alarming. As per figures available on July 5, 2000, the total number of cases pending before the Supreme Court was 21,600 against 1.05 lakhs a decade ago. As for the High Courts, pending cases number 34 lakhs now, against 19 lakhs 10 years ago. The number of cases pending for more than 10 years is 645 in the Supreme Court and 5,00,085 in the High Courts. (According to Frontline, July 07, 2001)

One of the reasons attributed to the huge increase in the number of pending cases in High Courts is the non-filling of Judges' vacancies in time. There are more than 100 such unfilled vacancies. The number of cases pending trial in the 12,378 district and subordinate courts in the country is estimated to be about two crores. Of the 12,205 posts of judges and magistrates in these courts, 1,500 are vacant.

Fundamental right to speedy trial

All the delay and lack of accountability and half baked schemes amount to a daily mockery of the fundamental right to speedy trial. The Supreme Court made it clear that "speedy trial is of essence to criminal justice and there can be no doubt that the delay in trial by itself constitutes denial of justice" (Hussainara Khatoon V. State of Bihar AIR 1979 SC 1364). 

In yet another case It added that "there can be no doubt that speedy trial -- and by speedy trial we mean a reasonably expeditious trial -- is an integral and essential part of fundamental right to life and liberty enshrined in Art 21" (Maneka Gandhi V. Vol, AIR 1978 SC 597)

It is a very important obligation. Even apart from Art. 21 the constitutional mandate for speedy justice is inescapable. The preamble of the Constitution enjoins the state to secure social, economic and political justice to all its citizens. The Directive Principles of State Policy declare that the state should strive for a social order in which such justice shall inform all the institutions of national life {(Art 38 (1)}. This is elaborated by specifically adding that "The State shall secure that the operation of the legal system promotes justice..; to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities" (Art 39A). While interpreting this provision the Supreme Court has held that "social justice would include 'legal justice' which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for realization of justice by all section of the people irrespective of their social or economic position or their financial resources" (Babu V. Raghunathji AIR 1976 SC 1734.)

The need for a fair Judge-Population Ratio

The fact that the Govt. has not accepted an increase in the judge-population ratio, which has been repeatedly recommended by Law Commission of India. The 120th Law Commission Report said "If legislative representation can be worked out, as pointed out earlier, on the basis of population and if other services of the State bureaucracy, police, etc. can also be similarly planned, there is no reason at all for the non-extension of this principle to the judicial services. It must also be frankly stated that while population may be a demographic unit, it is also a democratic unit. In other words, we are talking of citizens with democratic rights including the right to access to justice which is the duty of the State to provide". The 120th Law Commission while recommending the five fold increase in judicial strength at all levels of the Indian judiciary (from 10.5 to 50 judges per million of population) also pointed out how India's judge-population ratio stands in poor contrast when compared with several other countries.

The NDA government hesitated to address this issue on regular and permanent basis and to spend Rs 4750 crore on revamping the existing judiciary by raising judge-population ratio, instead, it has put forward a 502 crore fast track court scheme for a period of five years, which is an ad hoc, half baked attempt to address a serious problem of baffling pendency. The scheme proposed to start 1750 fast track courts at the rate of five in each district to clear pending criminal cases. The idea is good as it addresses the issue of undertrials languishing in jails for long years becoming a burden on the exchequer.

Under the Fast Track Court Scheme, a sum of Rs. 502.90 crores was sanctioned as special problems and upgradation grant for judicial administration for five years till 2005. At present, there are 1.8 lakh undertrials in jails on whose maintenance the Government was spending about Rs. 361 crores a year at the rate of Rs. 55 per person, per day, in prison. About two crore cases were expected to be disposed of by 2005,'' the sources said adding it would entail substantial saving in jail expenditure besides addressing a ``serious human rights problem.''

The then Law Minister, Mr. Arun Jaitley, said that ``at least five such courts run in all the districts in the country with full central funding.'' The mechanism, which would also take up undertrial cases, was cost effective as it would entail an estimated expenditure of Rs. 100 crores annually as against the total expense of Rs. 360 crores being spent by States for maintenance of undertrials each year.

The Centre allocated just Rs 100 crore per year for this purpose and expected that all under trial prisoner cases would be disposed within a year of commencement of fast track courts. It is not known whether the task is achieved at least four years or not. According to Union Law Minister H R Bhardwaj, out of 8 lakh cases referred to the fast track courts could dispose of 3.8 lakh cases only within four years. The center denied Rs 100 for fifth and last year of the project forcing them to cease functioning all over the country.

Initial set-back
In fact, when it is launched, the advocates were furious. The Andhra Pradesh Bar Council challenged the scheme as unconstitutional and would not serve the purpose of achieving speedy justice. The petition was admitted the AP High Court granted stay on operation of fast track courts. The objections raised by the bar council to the fast track courts are legalistic, in the worst sense of the term. For instance, it nitpicks on the Finance Commission's observation that the expenditure on undertrials (estimated at Rs 20,000 per head per annum) would come down as the fast track courts speed up the disposal of their cases. Talking in rather lofty terms, the bar council argued that a court is meant only to administer justice and not to reduce jail expenditure. It also objects to the appointment of the presiding officers from among retired judges on two-year contracts. The bar council contended that the contractual judges of the fast track courts will be less accountable than the permanent judges of the regular courts.

The AP High Court held that the scheme prima facie suffered from serious legal and constitutional infirmities and stayed its operation. The Union government challenged the High Court's order through a Special Leave Petition (SLP) in the Supreme Court. The SLP contended that the High Court had committed an error of law in virtually allowing the writ petition through an ex-parte order on a mere prima facie view of the legality of establishing fast track courts without specifying the grounds. On May 2, a Supreme Court bench, comprising Justice B.N. Kirpal and Justice Ruma Pal, stayed the High Court's order. Later, another Supreme Court Bench, consisting of the Chief Justice of India (CJI) Justice A.S. Anand, Justice R.C. Lahoti and Justice Doraiswamy Raju, while hearing on a case on the status of undertrials in various States, regretted that the scheme of fast track courts, despite its crucial nature, was not brought to the notice of the CJI before the government made an announcement in that regard. The Judges observed that the funds released to the State governments to set up fast track courts should have been placed at the disposal of the Chief Justices of the High Courts, for proper utilisation. "If you are going to build buildings, and then select Judges, the fast track courts would become absolutely slow track," the Bench said.

The Bench observed that if the identification of the cases that the fast track courts should try and the areas they should cover was left to the discretion of the Chief Justices of the High Courts concerned the scheme would have worked better. The Bench also wondered how retired District Judges could be recruited as presiding officers and under whose jurisdiction they would be. Its critical observations have led to dismay, as Law Ministry sources claimed that the draft of the scheme had been sent to all States and the Chief Justices of all High Courts and it was introduced only after effective consultation with the judiciary at every level. These sources also claimed that only the Chief Justices of the High Courts would select Judges for appointment in fast track courts.

Present Union Minister for Law Mr H R Bharadwaj, in response to a TV interview stated that by March 2004, 1400 such courts were operational, and 8 lakh cases were handed over to them, out of which a decision was given in 3.8 lakh cases. But he says this is too low a strike rate, and the reason for that is that the fast track courts are run by judges without the passion for justice. "Instead of retired judges, younger blood should be given a chance. They can get promotions and will have a future," said Bharadwaj. He has also promised to start filling vacancies in the various courts across the country within a few weeks.

The impact
During 2002, when the courts were still to gain speed, the media reported that the scheme was beginning to have, "its impact on crime situation as the number of heinous crimes had come down, particularly in Rajasthan and Maharashtra. Some impact had also been felt in Uttar Pradesh and Bihar." In May,2003 the Parliamentary Standing Committee --comprising of members from all parties and headed by an opposition member-- has expressed its satisfaction and urged the Government to do more.

Two year term and lack of accountability
The fast track court scheme envisages the appointment, for a tenure of two years, of ad hoc Judges from among retired sessions or additional sessions Judges, members of the Bar, and judicial officers who would be promoted on an ad hoc basis. The selection of Judges will be made by the High Courts. The Centre has directed the State governments to fill the vacancies that might arise in the wake of ad hoc promotions through a special drive. They did not foresee the problem of lack of accountability among the presiding officers because of the offer of short term in office after retirement.

There are genuine fears that litigants wielding influence at the district level could make use of the scheme in their favour to press for the expeditious disposal of cases they are interested in, which sometimes would result in the miscarriage of justice. The scheme leaves no scope for infusing fresh and young judicial talent, which is available in plenty.

The fast track courts scheme made no systemic changes in the judicial system. No new code of procedure has been created. Retired judges, who have a past but no future, are dispensing justice at a speed that is truly mind-boggling. What is interesting is that these same gentlemen never performed at even half the speed when they were in their regular careers. There are two reasons for this. One- the judges were cautious during their regular careers since they were subject to disciplinary proceedings. There can be no disciplinary proceedings for a person who has already retired and is serving on a short end-of-career tenure. This combines with a complete absence of accountability of a judge under Indian legal system. Two- some judges are viewing this tenure appointment as a last opportunity to make some hay while the sun shines. So there was extra effort at quick wheeling-dealing and disposal of the maximum number of cases.
Is it justified to have a mechanical adherence to the principle that "hundreds of criminals may escape, but one single innocent must not be punished" may result in adopting the easy course of acquitting the accused. Though it is universally acceptable proposition that not one single innocent must be punished, the courts are expected to be sensitive and cautious to ensure that no criminal should also escape. The viability of criminal justice system is tested in such cases. If not crimes will be unabated.

Best Bakery: the Worst Example of Fast Track Injustice

The National Human Rights Commission, in its Special Leave Petition (SLP) in the Supreme Court against the verdict of the Fast Track Court of H.U. Mahida acquitting all the 21 accused in the Best Bakery case, relating to the murder of 14 Muslims in the communal violence in Vadodara on March 1, 2002.
In its petition, the NHRC brought to the notice of the Supreme Court that even as one witness after the other, including the principal eyewitnesses, turned hostile, Judge Mahida made no effort to ascertain why this was happening. Quoting from records the NHRC raised strong objection that there was no effective cross examination of Zahira Sheik and Lal Mohammad, who contradicted their earlier written propositions.

"Thus, instead of making efforts to strengthen the prosecution case, it appears that the steps to the contrary were being taken," the NHRC petition noted. The NHRC also pointed out how the trial was reduced to a farce by doing away with a detailed cross-examination of the investigating officer who took the witness stand on June 21. On the same day, the Additional Sessions Judge, Fast Track Court No.1, Vadodara, completed the examination and recording of the statements of all the 21 accused persons under Section 313 of the Criminal Procedure Code (CrPC) and proceeded to hear arguments in part. The Fast Track Court, true to its name, delivered its judgment on June 27. The trial had begun on February 20. Was the trial court totally helpless in the face of lack of evidence before it? Apparently, the trial court was under the impression that it had no powers and jurisdiction to find and establish that if the accused were not guilty, then who was the real offender, or to order compensation from the government to the sufferer.

"The court of justice is not a court of justice in the real sense, but it is a court of evidence," Judge Mahida had remarked in his judgment. The NHRC did not agree. It said that the trial court is not rendered helpless either under Cr.P.C. or the Constitution, it had enormous powers to defer the trial, hold it in camera, direct the prosecution to do better, and examine the reasons behind volte-face of all witnesses in a row.

As NHRC rightly observed failure to order further investigation in the case in order to arrive at the truth and uphold the cause of justice had vitiated the whole trial. There are provisions in the CrPC that can be invoked in order to enable witnesses to depose before the court in a fair and fearless manner, the NHRC pointed out. "Where one witness after the other is seen by the court to be resiling from the earlier statement made, it was incumbent upon the prosecution to apply to the court to have the trial conducted in camera under Section 9 (6) of CrPC. Even if the prosecution did not do so, the court was not powerless... to suggest that the trial should be held in camera," the NHRC pointed out. Under Section 309 of the CrPC, the trial court can, for reasons to be recorded in writing, postpone the trial in order to ensure that a safe atmosphere is created to enable witnesses to depose fearlessly. It is also possible under Section 311 to recall and re-examine any person already examined, particularly if his or her evidence appears to it to be essential to the just decision of the case. The Fast Track Court did not exercise these powers and preferred acquit them all.

On August 8, the Supreme Court Bench appeared to have agreed broadly with the thrust of the NHRC's petition. It directed the Centre and the Gujarat government to submit within two weeks whether any scheme had been formulated to revamp the criminal justice system.

Why not the system is strengthened?
Unless systematic changes are brought in to eradicate delay, the poor litigants will futher suffer. There is no bar even under the present system to expedite the hearing of urgent cases by evolving formal court procedures rather than leaving it to chance or fast track courts. In the existing process decisions on applications for early hearing are routinely disposed of without considering the implications of any delay for poor litigants. It is highly probable that in the absence of a rational and sensible procedure to facilitate the expeditious disposal of cases, the fast track courts would make no difference to the huge backlog of cases.

There is a need for Law Commission or NHRC or Law Schools and the nation as a whole to conduct studies that monitor on a regular basis the quality of judgments delivered and the level of confidence of the people in the judicial system. Fast-track court scheme was a quick-fix that has apparently worked on the surface in as much as the backlog of cases has probably gone down and there is a quick disposal of cases. On the other hand it has led to serious problems by leading to a gross 'miscarriage of justice' in thousands of cases leading to erosion in the institution of judiciary. The entire justice system should be run on fast track on justifiable mission.

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