CHAPTER I

INTRODUCTION

“In determining a nation’s rank in political civilization, no test is more decisive than

the degree in which justice defined by the law is actually realized in its justice system”.

-Prof. Sidewick

According to the social contract theory proposed by John Locke, all men are free

by nature, and to secure absolute and inalienable rights such as life, liberty, and the

property was the state constituted.1However, for liberty to be consistent and meaningful,

it should be reasonably incorporated in a written document, aligned with the means to

realise the same, so that it could be realised effectively in the event of any

encroachment.2

The right to life encapsulates the essence of all rights and liberties. It has been

iterated repeatedly by the supreme court3 that timely justice and speedy trail is a facet of

the right to life under Article 21 of the constitution of India.

The cardinal principle of Natural Justice is that justice must not only be done but

manifestly and indubitably seem to be done.4A prolonged delay in dispensing justice

certainly defeats this basic principle of justice. People who receive justice must feel that

it has been delivered to them in time. The Constitution of India reflects the quest and

aspiration for justice. Its preamble speaks for justice in all its forms social, economic,

and political. Justice –social, economic and political also includes legal justice. It is the

1
Kerry walters(ed), A Letter Concerning Toleration 1, 13 (Boardviwers., London, 2013)
2
Alex Carroll, Constitutional and Administrative Law 96 (Lexis Nexis,New Delhi,5thedn., 2009).
3
HussainaraKhatun v. Home Secretary, State of Bihar AIR1979 SC 1369
4
Rex v.Susex (1924) 1 KB 256

1
duty of the state to secure a social order in which the legal system of the nation

promotes justice based on equal opportunity and ensure that the opportunities for

securing justice are not denied to any citizen by reason of economic and other

disabilities.5 Access to prompt and quality justice is the key for realizing this aspiration.

The dispensation of justice has little meaning if it is not delivered in a reasonably short

time. Delayed justice, frustrating the cause thereof, is no justice at all.

A good legal system should not only yield proper and just solutions but also

these solutions must be had quickly as human agency can guarantee. While emphasizing

the need for speedy justice, Justice Anand has rightly observed: “People want justice,

pure, unpolluted, quick and inexpensive and they have every right to receive the same”.

But in reality, there are deplorably long delay in the dispensation of justice, the need for

the speedy justice cannot be gained because as said, “If Justice is not executed speedily

men persuade themselves that there is no such thing as justice.”6

The efficacy of the criminal justice system is being questioned regularly in

India. Law as an instrument of social change has not been able to precipitate desirable

social changes in society effectively. On the other hand, modern society is also growing

rapidly due to heavy influence of ultra-modern scientific, technological, and biological

developments. The negative consequences of these developments have caused serious

problems of law and order in society in various ways. There has been phenomenal

increase in rate of crimes in society, the natures of crime, means and methods of

committing crimes have also considerably changed7.

5
The Constitution of India, art.39(A).
6
Dr U.P. Ramiah, “Customary Clogs In Justice Delivery System” 3 AIR336 (2003).
7
B.L. Arora, Law of Speedy Trial in India, 53(Universal Publishing Co., New Delhi, 1stedn, 2005).

2
 Inordinate delays in disposing the criminal cases jeopardize the efficacy of the

criminal justice system. Those who have suffered physically, mentally or economically

for criminal acts approach the court with great hope for redressal of their grievances.

They refrain from taking law into their hands as they believe that one day or the other,

they will get justice from the court. The justice delivery system, therefore, is under

obligation to deliver prompt and inexpensive remedy to its consumers without any

manner compromising on the quality of justice or elements of fairness, equality, and

impartiality.

When inadequacies within the system fail to ensure timely justice, especially

when it comes to criminal matters , the accused is put to severe and irreparable

hardships, and on the other hand, victims, mostly having entrusted with the state, the

obligation to garland them with the shroud of justice, faces secondary victimisation

perpetrated by the slow-paced judicial machinery.8When justice is denied, the law

becomes toothless and liberty becomes meaningless, questioning the fundamental

purpose for which the state is constituted.

One of the grey areas where our justice delivery system has failed to come up to

the expectations of the people is the failure of the judiciary to deliver justice

expeditiously. The delay in the dispensation of justice is in fact one of the greatest

challenges for judiciary. Delay in context of justice delivery denotes the time, which is

consumed in disposal of a case, in the excess of the time within which case can be

reasonably expected to be decided by the Court. Quality of justice suffers not only when

8
Anto Sebastian, Albin Anto, “Secondary Victimization of Rape Victims with Special Reference to
Gender Equality: A Critical Study”, 3(2) Social Sciences International Research Journal 79 (2017).

3
an innocent person is punished, or a guilty person is exonerated but also when there is

enormous delay in deciding criminal cases.9

As per available data 32.5 million criminal cases are pending in in courts of all

over India out of which 35 million criminal cases pending in the courts of Assam.10

Justice Madan B. Lokur while delivering the lecture in the International Conference

stated that on an average, courts can dispense justice in only 19 % of the cases yearly. It

is said that it will take around 300 years to clear the backlog of cases in the Indian

Courts if immediate reformative measures are not taken to correct the situation.11

The alarming situation of delay in dispensing criminal justice calls for a speedy

remedial measure. It should be practical, effective, and capable of delivering speedy and

efficient justice accessible to the masses. The Government of India as well as the

judiciary has taken various reformative measures to arrest the delay in dispensing

justice, but desired result is yet to be achieved. Therefore, the delay in dispensing

criminal justice has become a major hurdle for the judiciary in dispensing inexpensive

justice to the citizens and has become a serious socio-legal issue all over India including

in the State of Assam.

1.1. Statement of the research problem

With the raising of literacy and awareness people are becoming more right

conscious, this has resulted in more institution of cases in the courts. The inadequate

9
Hussainarakhatun(No. 1) v.Home Secretary Bihar , AIR 1979- A procedure can not be reasonable ,fair
or just unless it ensures a speedy trail for determination of guilt of the person deprived his liberty.
10
National Judicial Data Grid available at
https://njdg.ecourts.gov.in/njdgnew/?p=main/index&state_code= (Last visited December 31st ,2022)
11
Justice Madan B. Lokur “Case Management and Court Administration”, Law Commission of India
SInternational Conference on ADR and Case Management, New Delhi, May 3-4, 2003, available at
http://lawcommissionofindia.nic.in/adr_conf/Justice_Lokur.pdf (visited on 10.06.2021).

4
human and materials resources of the court fail to dispose of the ever-increasing cases,

resulting in backlog and pendency and delay in the administration of justice. Therefore,

the accused, victim and other concerned person suffers due to such inordinate delay in

disposing of the cases. The problem of pendency of cases has been eye marked by many

committees and commissions as well as some legal experts have pointed out many

issues relating to pendency of the cases. The justice delivery system is not as proactive

as required for speedy and prompt justice. As per as pendency of criminal cases are

concerned both the victim and accused struggle of access to quick justice. The justice

delivery system in India vis-a vis in the state of Assam is bursting may collapse unless

immediate measures are taken not only by the judiciary but also by the legislature and

executive.

In this study, the researcher has made a humble effort to find out actual problem

facing by the existing criminal justice delivery system in India vis-a vis in Assam. The

researcher has made a small endeavor to suggest some practical and effective measures

to mitigate the problem of delay faced by the existing criminal justice in India especially

the state of Assam.

1.2. Need and significance of the study

The desire for quick, fair, and affordable justice is universal. Protection of life and

liberty has been given a pre-eminent position in our Constitution by enacting the

Fundamental Rights under Article 21. Though , the right to speedy trial not specifically

enumerated as a fundamental rights in the constitution of India , but it is implicit in the

broad sweep and content of Article 21.12However, the ground reality is that this

12
Maneka Gandhi v. Union of India, AIR 1978 SC 597

5
precious right is turning out to be a mere pipe dream for millions to whom justice is

delayed, distorted, and denied, more than its delivery in accordance with the ideals

enshrined in the Constitution.

The entire existence of an orderly society depends upon sound and efficient

functioning of the criminal justice delivery system. The issue of delay in dispensing

justice has been persistent cause of concern for the Indian judiciary for long time.

Criticism often comes from different quarter that the criminal justice system in India has

failed to dispense justice in time.

The greatest challenge for the Indian judiciary today is huge backlog and delay

in dispensing justice. This challenge faced by the judiciary influenced the researcher to

select this topic under study to find out the root cause through empirical research and

suggest some pragmatic solution based on the extensive field research to arrest the

problem. Researcher also got inspired by his research guide who has vast experience in

this field to select this topic. The researcher also discussed the worthiness of the topic

with the respected teachers of the department of law who inspired him to select this

topic. Hence it is inferred that there is urgent need to investigate the working of present

Criminal Justice Administration and delays in dispensing criminal justice in India vis-a-

vis in the State of Assam. The study would also try to investigate whether the situation

at least in Assam can be remedied faster and whether Assam could serve as a model

state for the rest of the country in this regard.

1.3. Scope of the study

For this study, the term ‘criminal matters’ means and includes original criminal

matters, criminal appeals, bail applications and criminal miscellaneous applications-

6
filed in the subordinates courts in India, ranging from the lowest forum having

jurisdiction to entertain a criminal matter to the Principal Sessions Court in each state.

There is no exact definition of delay and backlog. However, the Law Commission of

India, in its 245th reports13 devised some workable definition of the terms Delay,

Pendency, Backlog, etc. and this definition to be used for the purpose the study. The

extent of the study has limited to the criminal matters that fall under the jurisdiction of

subordinate courts of Assam and other states. The study is confined to analysis of data

for a period of five years ranging from 2018 to 2022 available in National Judicial Data

Grid maintained by E- committee of the supreme court of India. The researcher also

studies delay and backlog by dividing criminal matters into their type wise, sessions

cases and warrant or summons cases.

1.4. Objective of the study

The present study will be conducted keeping in view the following objectives: -

1) To study the concept of speedy and delayed justice.

2) To examine the extent to which pendency, delay and backlogs of criminal

matters in in India vis -vis in Assam severely affect to access to justice and

infringed personal liberty.

3) To examine the statistics of pendency of cases in Assam and India as a

whole.

13
Law Commission of India, 245th Report on ‘Arrears and Backlog: Creating Additional Judicial (wo)
manpower’, 3 (Ministry of Law, Government of India, 2014)-
Delay refers a case that has been in the Court/judicial system for longer than the normal time that it
should take for a case of that type to be disposed of. Backlogs refer as when the institution of new cases
in any given time period is higher than the disposal of cases in that time period, the difference between
institution and disposal.

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 4) To study the causes of delay, pendency and suggest means to improve the

situation of India in general and of Assam in particular.

5) To examine the report of various committees constituted for this purpose.

6) To study the various measures undertaken by the Government and the higher

judiciary for delivery of speedy justice.

1.5. Hypothesis

The researcher has put forward the following hypotheses for the study: -

i. Delay in dispensing criminal justice is a major problem in India vis-à-vis

in the State of Assam and it impedes access to justice and personal

Liberty.

ii. Measures undertaken to mitigate the delay in dispensing criminal justice

are inadequate.

1.6. Research methodology

The Researcher for the study has applied both doctrinal and non-doctrinal

methods. Doctrinal research means research that has been carried out on a legal

proposition or propositions by way of analyzing the existing statutory provisions and

case laws by applying reasoning power. Original materials are accessed and analyzed.

Much of the material is gathered through the internet from the Official Websites of the

Government of India, various Ministries and International Organizations and NGO’s.

The data and materials are collected from books, journals, reports and various

documents relevant to the research.

8
 Empirical Research relies on experience and observation alone, often without

due regard for system and theory. Data could also be obtained through National Judicial

data Grid, Supreme court’s website, Guahati High Court’s website Throughout the

study, content analysis is undertaken for data collection. To identify the reasons for the

delay questionnaires could be supplied to the judicial officers and advocates.

1.7. Type of Data Source

For conducting the present research work and for getting an insight into the

problem under study, primary as well as secondary data will be used. Various statistical

tools will be used to suggest and analyze the data and will be primarily explorative and

documentary. The data shall be primarily collected from the National Judicial Data Grid

and questionnaires could be supplied to the judicial officers and advocates.

1.8. Tools for collecting primary data:

Questionnaire and surveys.

1.9. Tools for collecting secondary data.

I. Document Review.

II. Observation.

III. Web Search.

IV. Journals, Periodicals, Seminars.

V. Various policies of National Organizations.

VI. Sampling of reports, records, operational logs, data entry documents,

complaints and various types of forms.

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1.10. Brief Presentation of the Chapters

The study has been presented into the following Chapters: -

Chapter I: Introduction

Chapter II: Historical Background of the criminal justice system of India

Chapter III: Constitutional and Statuary provisions regarding Speedy Trial

Chapter IV: Comparative study of right Seedy Trial that prevails in the

criminal justice system in India, U.S.A., Australia and U.K

Chapter V: Presentation, analysis of data and interpretation of the results.

Chapter VI: Conclusion and suggestions

1.7. Literature Review

Review of literature is an indispensable part of research. It provides insight as

well as direction to indicate and identify the research problem, in taking a sample and in

selecting appropriate methodology.

The following literature is reviewed for this purpose.

Jayanth K. Krishnan & C. Raj Kumar, in their article, ‘Delay in Process, Denial

of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative

Perspective’14 compares and attempts to draw parallel between the judicial process in

United States and India in terms of delay in disposing of the cases and advocates for the

need to have speedy trial. In the process, the authors trace down the jurisprudential

evolution of the concept of speedy trial in United States and relates it to the

development of the concept in India. The article beautifully brings into picture, judicial

activism in 1970s to ensure speedy trial to the decision in Imtiaz Ahamed case.

14
Amanda J. Perry, The Relationship between Legal Systems and Economic Development: Integrating
Economic and Cultural Approaches, 29 J.L. & Soc'y 282 (2002)

10
 Sudhir Krishnaswamy, Sindhu K Sivakumar & Shishir Bail in their article,

‘Legal and Judicial Reform in India: A Call for Systemic and Empirical Approaches’15

questions the finding that the shortage of subordinate judges alone constitutes the delay

crisis. The article written primarily to question the viability of the promise to reduce

delay of cases by doubling the number of judges, criticizes that the omnibus solution to

the issue at the national level is of no assurance that the crisis would be resolved.

Instead, authors point to the need to have a localised solution to the crisis, as the extent

of delay varies from state to state and region to region. However, the authors are also

mindful of the inadequacies of reliable data that could defeat the approach.

Ram Shankar Tripathi in his book ‘History of Ancient India’16 discussed

prevalent administrative system in Rigvedic period, Maurya period and Gupta period. In

reviewing the administrative system, the writer also studied the judicial system in those

days.

Netra Panday in his book ‘Political Ideas and Institution in Ancient

India’17explained prevalent justice system in Mahabharat period, Maurya period and

afterwards on the basis of Ramayana, MahabharatKautilya’sArthshastra,

Manusmriti,Yajnvalkya, Nitishastra, Kaamandankiyam etc. It is more descriptive and

mythological rather than analytical.

SatyaketuVedalankar in his book ‘Ruling Institution and Political Ideas of

Ancient India’ deals with the organic growth of institutions of ancient India. One

chapter of this book deals with deals justice, law and order in ancient India, which he

mentioned that in ancient period laws were based on religion and traditional customs

15
Krishnaswamy,Sudhir and K. Sivakumar, Sindhu and Bail, Shishir “Legal and judicial reform in India:
a call for systemic and empirical approaches”. 2 Journal of National Law University, Delhi, 1-25 (2014)
16
RamshankarTripathi, History of Ancient India, (Jain Publications, New Delhi ,1942)
17
Netra Pandey, Political Ideas and Institution in Ancient India, (Bharti Prakashan, Allahabad ,1980)

11
and the king subjected himself to the law i.e. law was supreme. The king was the

supreme officer of justice system. He might have appointed any person as judge, who

had been skilled in Veda shastra.18

V.N. Puri in his book ‘History of Indian Administration’, discussed the

administrative system of different rulers in eighteenth century, however, the book

nominally talks about the judicial system.19

Prof. M.P Jain in his book ‘Outlines of Indian legal and Constitutional History’

deals with the legal and constitutional development during the colonial period in India.

But this book does not elaborately explain the development of Criminal Justice system

and judicial reform.20

S.K Majumder in his book ‘Justice Delayed Justice Denied’ pointed out towards

misuse of procedural system and attempted to prove that legal terminology or glossary

is produced in a twisted form as a result of which tendency of litigation is increasing

day by day. So, the contention of the author is that disciplinary action must be taken

against the advocates misusing the legal system and special courts are established for

the disposal of the cases which are pending since years so that the system of justice may

be activated to do justice in time.21

Arun Mohan “Justice, Courts and Delays”22 by - In this book author basically

cover the different causes of delays in justice delivery system in India specially the

adjournment and its effect in the quick dispensing justice. The Author also covered the

impact of court management and case management in dispensing justice within a

18
SatyaketuVidyalankar, Ruling Institution and Political Ideas of Ancient India, (SaraswatiSadan, New
Delhi ,1983)
19
B.N. Puri., History of Indian Administration, (Bhartiya Bhawan, Bombay ,1975)
20
M.P Jain, Outlines of Indian Legal and Constitutional History, (Lexis Nexis, 6th edition, New
delhi,2008)
21
S.K. Majumdar, Justice Delayed is Justice Denied, (Mainstream, 1998.)
22
Arun Mohan “Justice, Courts and Delays,2(Universal law Publishing, New Delhi, 2009)

12
reasonable time. But this book is silent about the other factors of delays in dispensing

justice and do not provide the measures to solve the problem.

“Customary Clogs in Justice Delivery System” by Dr V.P. Ramiah - In this

article the Author has nicely explain the various factors contributed in delays in the

dispensing justice particularly the criminal justice,But this article is not covered the

current factors which are emerged in recent time as contributing factor in delays in

justice delivery in India.

Researcher also reviewed the following Reports andArticles

I. Law Commission of India, Congestion of Under -Trial Prisoner in Jail,

Report No.78 (February 1979)

II. Law Commission of India, Code of Criminal Procedure,1973, Vol-

I,&Vol-II Report No. 144 (1996)

III. Law Commission of India, Law Relating to Arrest, Report No.177 Part I

& Part II (December,2001)

IV. Law Commission of India, Reforms in the Judiciary: Some Suggestions,

Report No.230, (January 2009)

V. Law Commission of India, Compounding of (IPC) Offence Report No.

237(December 2011)

VI. Law Commission of India, Public Prosecutor’s Appointment, Report No.

197(July 2006)

VII. Law Commission of India, Arrears and Backlog: Creating Additional

Judicial (Wo)manpower, Report No.245 (July 2014)

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VIII. Report of the Law Commission of India (Report No. 230) on Reforms in

the Judiciary - Some Suggestions, 36 COMMW. L. BULL. 609 (2010)

IX. Report of Malimath Committee on (Reform of Criminal Justice System,

(Government of India, Ministry of Home Affairs, 1989-90)

X. Satish Chandra Committee, Report of Satish Chandra Committee

(Government of India, 1986)”

XI. Avishek Singhvi, Reform in Administration of Justice: Beating the

Backlog, Journal of Indian Law Institute, vol. (58), 2016.

XII. S.N Sarma, “Fundamental Right to speedy trial”, 38 Journal of Indian

Law Institute, (1996.)

14