Well intended comments by senior judges and the Prime Minister put the spotlight on the slow grinding wheels of justice.

Rarely has near-unanimity been reached between the Executive and the Judiciary, two of the three major organs of State, on the need to urgently repair the system of dispensing justice. In the 75th year of India’s Independence, it has been encouraging to witness the frequency with which senior representatives on both sides have raised concerns in full view of the public. Views are no longer limited to whispers among ministers or conversations only in judges’ and lawyers’ chambers or the drawing rooms of academics. This openness and acknowledgement have facilitated the creation of an environment of healthy discussion, and allowed people to take an honest stand that reflects the state of the judiciary, including its pendency and the quality of judgements given. Making critical observations is no longer an anathema or an act liable for contempt of court proceedings. Of course, this is as long as its expression is within the bounds of civility and not irreverential or irrelevant. Such a transformation in the general attitude of the higher judiciary on its own functioning deserves recognition. More importantly, it raises the expectations of a positive outcome.
As per a government statement in Parliament’s last winter session, the pendency of the cases in the various courts of India was a mind-boggling 47.1 million. Of these, 41 mn were in district and subordinate courts, the first port of call for most litigation. On 22 July 2022, Union Law Minister Kiren Rijiju further informed the Lok Sabha that the number of pending cases in the 25 high courts totalled 5.96 mn. The Allahabad High Court had the highest pendency at over 1 mn, while Rajasthan was next with a little over 0.6 mn, and Mumbai was third with just under 0.6 mn. Reportedly, the Supreme Court had about 71,000. The enormity of these numbers becomes vivid when one recalls that the annual disposal of cases in the judicial system is currently about 4 mn, while new filings add up to 20 mn. For centuries together now, jurisprudence the world over has highlighted that justice delayed is justice denied. Yet, precious little progress has hitherto been effected on the ground in India. Otherwise, we wouldn’t have 187,000 cases that have now been pending for over 30 years.
Speaking a fortnight ago at the valediction of the first All India District Legal Services Authority (AIDLSA), Sanjay Krishan Kaul, a senior Supreme Court Justice, observed: “The sheer volume of pendency to my mind is creating an impediment. If every case has to be tried till the end; every first appeal has to be heard by the courts; if every matter transcends itself to come into the Supreme Court, why 200 years, 500 years we will also not see the end of this litigation.” As the chief guest at the inauguration of this event, Prime Minister Narendra Modi appealed for focusing on the ease of justice and vastly improving access to the judicial system. He further urged the participating district judges to apply themselves more comprehensively to addressing the issue of the humungous number of undertrials languishing in jails. Thereafter, the Law Minister had talked of the special drives being launched to deal with such detainee.
A definitive estimation of the undertrials is revealed by the “Prison Statistics: India Report”, a publication brought out periodically by the National Crime Records Bureau. At the end of 2020, there were 488,511 prison inmates; of this 371,848 or 76% were undertrials. Many of them had been incarcerated for longer than one half of the possible maximum prison punishment. What is worse is that across the country, the police routinely oppose their bail-applications despite most of them not being able to afford a lawyer to defend them. Even in such attenuating circumstances, the trial courts have demonstrated an unmitigated tendency to go along with police-prosecutors, rather than take stands with an independent mind. This has happened despite the higher courts repeatedly asserting that under the Constitution, citizens enjoy the right to life and liberty, and that bail is the rule and not an exception.
Such a state of affairs, understandably, discourages the average citizen from tapping the judiciary for seeking relief of any kind. While inaugurating the AIDLSA, the Chief Justice of India, N.V. Ramana, had himself admitted, “the majority of the population lacked legal awareness and necessary means to approach the courts” and that “the SC on several occasions had spoken on the need to be sensitive towards the humanitarian issue of undertrials.” Devising meaningful ways and means to combat this issue was also highlighted by Justice D.Y. Chandrachud, who is in line to become the Chief Justice of the country next November. He had referred to the widespread reticence among both the apex and high courts to the adoption of progressive measures such as social media and other modern techniques because, as he put it, “even the senior judiciary preferred to operate in an environment of opacity of proceedings.”
The extremely high case-pendency and the erosion of public faith in the judiciary (which is already low with the Executive wing of governance) are a product of developments over time. The absence of screening of any kind before a case is filed for adjudication and the resultant clogging up of the judicial process at every stage is undoubtedly a significant factor. Alongside is the woeful inadequacy in the number of trial-courts, the inability to fill judges’ vacancies in almost every judicial forum (especially by women and Scheduled Tribes) and the poor physical and technological infrastructure to enable the judicial process to be conducted expeditiously.

The pronounced delays in criminal justice can be partly ascribed to the jurisprudence on the subject. Though the Constitution of India had included life and liberty as the Fundamental Rights of citizens, the first substantive assault came with the imposition of a national emergency in 1975. By a majority decision in the case of ADM Jabalpur vs Shukla, the Apex Court inexplicably accorded consent to Premier Indira Gandhi’s suspension of the fundamental rights enshrined in the Constitution and ruled that “a detenu could not ask for a habeas corpus or any other order from the court even if he is able to show that his detention was illegal or mala fide or was not authorized under the very law under which he was sought to be detained” (N.A. Palkhivala; We, the People: India, the Largest Democracy, 1984). In this context, recall that thousands of political foes and others were being put behind bars under the newly enacted Maintenance of Internal Security Act (MISA). This happened despite the Supreme Court’s celebrated ruling in the Kesavananda Bharati case of 1973, that claimed “while Parliament is entitled to abridge any fundamental right or amend any provision of the Constitution in the exercise of its amending power, it cannot alter or destroy the basic structure or framework of the Constitution.”
The legal dispensation of 1976 circumscribing the individual’s rights had far reaching repercussions into the principle of guaranteeing the basic freedoms of life and personal liberty and damaged the very sinew of the rule of law. No doubt, this was a temporary aberration which came to be removed post the Emergency by a new government that restored the provision of the original law. However, this did not inhibit successive Central and state governments from enacting a slew of legislations that sought to curtail a citizen’s rights to life and personal liberty.
These and the already on the statute book enactments included the Unlawful Activities Prevention Act, 1967 (UAPA), Preventive Detention Act, 1950 (PDA), Prevention of Terrorism Act (POTA), 1985, Terrorist and Disruptive Act (TADA), 2002, Armed Forces Security and Prevention Act (AFSPA), 1958, and the Prevention of Money Laundering Act (PMLA), 2002. While TADA, MISA and POTA were repealed upon widespread misuse coming to light, their salient provisions were retained through the enacting of new laws or their revised versions such as UAPA and the amendment of provisions in the existing criminal code. In addition, colonial laws like the Sedition Act of 1837 and the Indian Penal Code, 1860 continue to remain on the statute-book. The Arms Act of 1959 and the Immoral Traffic (Prevention) Act, 1956, also have archaic provisions that are not in line with the doctrine of an accused being innocent till proven guilty.
Differing interpretations of the numerous legal provisions given by High Courts, and the latter-day decisions of the apex court on the same subjects have made matters more opaque. Nowhere in Indian criminal law are many of the terms used in such laws defined or described, and the Courts as well citizens are free to these terms of approbation when so impelled (Upendra Baxi, Indian Express, 3 August 2022). In 2017, the Right to Privacy was made a fundamental right. Late last month, in a clubbed case (Vijay Madanlal Chowdhry vs Union of India) of over 240 related petitions, a three-member bench led by the retiring Justice A.M. Khanvilkar, upheld the legality of PMLA as well as the requirement of meeting the “twin conditions” for bail—the accused having to prove that he is not guilty of money laundering, and that he is “not likely to commit any offence while on bail.”
The 27 July 2022 SC judgement also endorsed the Enforcement Director’s executive powers for carrying out searches, seizures, attachments of assets and the arrest of suspects. It went on to term the statute as constituting a “complete” and comprehensive “code” and a standalone or a “sui generis” legislation that put the law on a pedestal as a specialized code that does not follow all the principles of the code of criminal procedure (Gauri Rasgotra, Mint, August 1, 2022). In the process, this bench overturned the 2017 order of the court passed in the Nikesh Tarachand Shah vs Union of India case wherein a certain punitive Article 43 of the Act had been held unconstitutional. It contradicts the spirit of the 11 July 2022 judgement that “a democracy should not give the impression that it is a police state” (Krishna Das, Hindu, 1 August 2022). Arguably, it ended up upholding the draconian bail conditions of the law by diluting the well-established principles of criminal law.
As is widely known, it is still not easy for an ordinary citizen to register a criminal complaint (called the “First Information Report” or FIR) in most police stations, especially the in rural ones, despite both the law and the apex court mandating the registration of FIRs. Thereafter, despite the Criminal Procedure Code prescribing the time limits for filing charge sheets (and in the case of default thereof, bail being granted), strict adherence is seldom. To avoid the default bails, the usually filed charge sheets are partial, with the prosecution reserving the right to file subsequently any number of supplementary charge sheets. The officials who fail to timely file full charge sheets are rarely held accountable by the courts or their administrative heads. In far off located stations, several police officials mistakenly, and many times intentionally, also go about filing charges against innocent people. Most of the times, the investigations leading to the charges are not comprehensive and the witnesses cited are not reliable enough to give evidence to substantiate the charges.
It is little wonder that the rate of conviction in criminal cases in India is abysmally low and the criminal system remains liable to a high degree of abuse and arbitrariness. As per NCRB data, between 2018 and 2020, 4,960 arrests were made under UAPA but only 149 were convicted. Under the PMLA, 4,700 cases, or five times the number in the previous three years, are being investigated by the ED despite the past conviction rate having been in a single digit. In the entire criminal system, the current conviction rate is under 30%. The continuous harassment through coercive measures, and the making of multiple arrests from multiple jurisdictions of an accused for the same alleged offence, ought not be permitted.
One could argue that the significant root cause for the current state of criminal justice is more intangible; it stems from the skewed attitude of almost all stakeholders, viz. members of the Bar, the adjudicators, as well as the Executive. Accordingly, the required ameliorative action must be multi-pronged and at several levels. Howsoever tedious and prolonged the process of effecting improvements might be, initiating it forthwith and pursuing it relentlessly is the imperative. After all, the judiciary performs several essential roles particularly in ensuring the freedoms and liberty of citizens, the functioning of the world’s largest democracy and maintaining the envisaged checks and balances upon the varied stakeholders.

Dr Ajay Dua, a public policy commentator, is a former Union Secretary.
Part 2 of this article covering the shortcomings in civil proceedings, and the possible way forward in judicial reforms, will appear in the next edition.