speedy trail jurisprudential aspect

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COMPARATIVE JURISPRUDENCE

RIGHT TO SPEEDY TRIAL

FROM RAWLSIAN AND ARISTOTLIANPERSPECTIVE

SUBMITTED TO:

PROF. AMITA DHANDA

SUBMITTED BY:

NAME: PALLAVI BAJPAI

ROLL NO. : 26

LLM 1ST

YEAR


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A 37-year-old criminal case pending trial before a Delhi court recently drew the attention of

the nation towards inordinate judicial delays with the accused approaching the Supreme

Court seeking a quietus to the protracted trial. But what went unnoticed is the fact that the

court refused to acknowledge paucity of judges, huge pendency, inefficient administration

and other systemic faults as factors impinging upon the fundamental right to a speedy trial. 1

So the researcher has taken up the topic The right to speedy trial and has tried to explain

how this right is a fundamental basic liberty which is indispensable for a citizen in a society

governed by the judiciary as a social institution imparting justice from a Rawlsian point of

view with the help of his theory of justice. The researcher has further explained theimportance of this right through the purpose of justice in a society from Aristotelian view

where he emphasizes on the TELOS and here the very purpose of moving to a court is to

obtain justice, and if the trial drags on for years and the judgment comes after the death of the

victim when most of the people have no recollection of the crime committed, the very

purpose of law is defeated.

We live in a democratic set up where certain basic fundamental rights and liberties which are

indispensable for the progress of the individual in a society have been implicitly provided to

the citizens in the constitution itself. Several social institutions have provided the mechanism

for the enforcement and implementation of these basic liberties.

Explanation of this indispensable right for securing justice in the light of theory of

Rawls:

InHis Theory of Justice, Rawls begins with the statement that, Justice is the first virtue of

social institution, meaning that a good society is one structured according to principals ofjustice.2

For him there are two main principles of justice

1) Principle of Equal Liberty: Each person has an equal right to the most extensive liberties

compatible with similar liberties for all.

1THE HINDU New Delhi, July 26, 2012

2 John Rawls, Theory of Justice, 1971


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2) Difference Principle: Social and economic inequalities should be arranged so that they are

both (a) to the greatest benefit of the least advantaged persons, and (b) attached to offices and

positions open to all under conditions of equality of opportunity.3

The first principle of justice where he says that each person has an equal claim to the basic

liberties ,which is compatible with the same scheme for all ,which means each and every

citizen has a basic right to acquire certain liberties. Rawlsian theory talks about political

liberties together with freedom of speech and assembly, liberty of conscience and even

certain rights under to the rule of law which relates to arbitrary arrest and detention ,the right

to speedy trial, due process and uniform procedure according to publicized rules.

It is here where the researcher relates Rawlsian first principle of theory of justice with theDemocratic set up in which the all citizens are guaranteed certain rights and liberties equally,

one of which is the right to speedy trial. Such right is one of the most important rights to seek

justice.

The right to speedy trial flows from Article 21 and encompasses all stages of criminal

investigation and trial right from investigation, inquiry, trial to appeal, revision and retrial.

Supreme Court has ruled that under Article 21 the procedure used to deprive one of ones

liberties has to be reasonable, fair and just. Therefore, any procedure used to arrest or punish,

if not just, fair and reasonable, violates Article 21.

There have been many cases where the judiciary has realised the importance of such rights

and have given them fundamental tag. But tagging them fundamental will not lead us achieve

the end of the liberty granted through the right.

Lets consider a question as to how are we to judge whether and in what degree a person

living under some institutional order has the basic rights and liberties Rawls requires?

Rawls says that to judge in what degree some institutional order affords a person a particular

basic liberty requires two investigations:

1) Extent: we must examine the relevant legal text as officially interpreted to determineto what extent the rights they guarantee adequately cover the basic liberty in question.

3John Rawls,His life and theory of justice by Thomas pogge


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2) Security: And we must examine how well the rights covering the basic liberty are infact adequately protected and enforced.4

For example considering here the judiciary as a social institution imparting justice.

The text on which the Indian judiciary relies is the basic document of the nation which is the

constitution of India, where the basic liberty of seeking justice speedily and according to the

procedure established by law is guaranteed not explicitly but under article 21, which says no

one should be deprived of his life and liberty except according to the procedure established

by law. The right to speedy trial is incorporated in this article itself and is a fundamental

right.

This right has been has been given the status of the fundamental right and can be protected

and enforced under article 32 ,which talks about the right to seek constitutional remedies.

The Supreme Court has held in Hussainara Khatoon case5, that speedy trial is a fundamental

right implicit in the guarantee of life and personal liberty enshrined in art. 21 of the

Constitution and any accused who is denied this right of speedy trial is entitled to approach

Supreme Court under art. 32 for the purpose of enforcing such right and the Court in

discharge of its constitutional obligation has the power to give necessary directions to the

State Governments and other appropriate authorities for securing this right to the accused.

So far, the Indian system of providing this right is in consonance with the first principle of

Rawls, where each and every citizen is provided the right to speedy trial and had been given

the mechanism for its enforcement.

Rawls says that legal rights must be equal across all citizens .Rawls must therefore be

understood to mean that basic rights and liberties can be fully adequate when the security ofeach guaranteed right reaches an attainable threshold level for all citizens. He also says that

laws and institutions no matter how efficient and well-arranged should be reformed if they

are unjust.

India has made well established institution called the judiciary incorporating the basic rights

and their enforcement. But this institution has not been able to practice what it preaches. In

4ibid

51980,1 SCC 8


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the present date we have various cases pending in different courts whose number is

increasing day by day.

Judicial delays in India in reality are endemic. No person can hope to get justice in a fairly

reasonable period. Proceedings in criminal cases go on for years, sometimes decades. Civil

cases are delayed even longer. This is despite the legal position strongly favouring speedy

trial.

Even the judiciary realises that the justice system even in grave cases, suffers from slow

motion syndrome which is lethal to 'fair trial' whatever is the ultimate decision.

Consider the Bhopal gas leak tragedy which involved the lives of more than 15000 people ,it

took more than 20 years to compensate the people who suffered ,the victims of the best

bakery case who awaited for justice in their favour but because of long delay the witness

turned hostile ,the recent 37 year old L.M Mishra case which is still pending the advocate

who took the case at 24 years of age is 61 now shows that even after providing the citizens

with the basic rights and liberties the judicial institution is unable to protect and enforce this

basic right to the citizens.

There are two things happening with this delay in the trial, one that the actual accused flees

away from being punished and the innocent lingers in jail.

There are so many prisoners who are undertrials who are in jails for years without being

given the chance of equal opportunity to defend themselves either because they are indigent

orcant afford lawyers to defend themselves or get them out of bail.

The accused ,which are actually innocent have to suffer in jail while those who are guilty stay

out of prison on bail adding fuel to the belief that law moves too lethargic a pace to be

effective.

The total number of criminal cases pending before District &Subordinate Courts is about 1.90

crore (190 lakh) cases, about 82 lakhs civil cases are pending. According to 2011 data about

300000 of the total 430000 prisoners in India were undertrials who are unconvicted

defendants in criminal cases6.

6LAW COMMISSION REPORT MARCH, 2012


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The criminal justice delivery system in India have seen the undertrial prisoners being

neglected in jail for many years, in many cases it exceeded the maximum sentence for the

crime which they had committed. .

The Indian judicial system has not been able to promote the virtue of justice .As it is said

that justice delayed is justice denied. The above situation suggests a dire need for

reformation of this institute or system, and as Rawls states that justice is the virtue of the

social institutes.

It is a sad reflection on the legal and judicial system that the trial of an accused does not even

commence for years on end.

The main reasons for the delay are the availability of judges in proportion of the population

ratio, the functioning of judiciary as an independent body derives leisure and comfort,

provisions for adjournments, vacations of courts, delay at the investigation level, the bail

provisions. The judicial institute has been unjust and so needs reformation which Rawls also

suggests7.

Rawls also states that all the individuals should have equality of opportunities. The Indian

judicial system has failed in providing this equal opportunity of being heard as soon as a

dispute is brought up or of being heard within a reasonable time. The indigenous people do

not get the opportunity to come up to the court to defend themselves.

Article 14 of the Indian constitution states that there should be equality before law and equal

protection of law .According to which all individuals should get equal opportunity to take up

their case before the judiciary but in reality this is not happening and the basic liberties

provided by the constitution are failing in their enforcement, which can be seen by the

mounting pending cases and the position of the undertrial prisoners.

The system prevailing in India has adopted the equal basic liberty principle equally to all but

have not, been able to provide a good engine to enforce these basic liberties.

The researcher would now relate the issue to Aristotelian view in the light of his concept

ofTELOS:

7LAW COMMISSION REPORT,2009 ON SPEEDY DISPOSAL OF CASES SUGGESTIONS


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For Aristotle all creatures, things and activities have a final end, goal or purpose and each

thing aim at some good.8

Aristotle believes that it is possible to reason about the TELOSof a social institution, their

essential nature is not fixed once and for all.9

As the researcher has considered judiciary as a social institution we can apply the telos

principle here.

I would take up the purpose of administration of justice as well as the purpose at which

human being aim at and analyse whether the TELOS of both are being achieved or not.

The purpose of moving to a court is to obtain justice, and if the trial drags on for years and

the judgment comes after the death of the victim when most of the people have no

recollection of the crime committed, the very purpose of law is defeated.

The administration of justice does not deal with the punishment of the guilty alone; it also

means acquittal of the innocent. Fairness and speed are equally important in the

administration of justice. Speed serves the best interests of the accused, the survivors and the

society at large. The right to speedy trial is the means through which justice can be secured.

A person could be innocent, yet he may suffer confinement or anxiety or both because

judicial system fails to reach a verdict for many years. The delay could be due to tardy

investigation by the police. Then courts have built up huge arrears of undecided cases which

coupled with the fact that the number of courts is also quite less ensures that every case has to

wait for years for decision. Rules of procedure under the Code of Criminal Procedure and the

Indian Evidence Act do not help the situation either.

The Indian judicial system has failed in not only punishing the guilty but also has not beenable to acquit the innocent who suffers the misery in the ray of hope to get a chance for being

heard speedily in the court .as discussed earlier the status of the pending cases and the

undertrial prisoners reflect how successful has the judicial system been in light of its telos

which is to provide justice.

8www.plu.edu/nelsoned/courses/115/studyguide/aristotle.html

9Michael sandel ,who deserves what -Aristotle


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Aristotle says there are ends which are subordinate to other more ultimate ends for example

here right to speedy trial is a subordinate end to seek ultimate justice from the law courts.10

Aristotles ethics are teleological in nature. All things aim at some good, and the good can

rightly be defined as that at which all things aim. The only good or end at which human

beings aim, in and of itself, is happiness, and humans aim at all subordinate goods (wealth,

honour, power, justice) for the sake of happiness. Happiness itself involves the ability to

move towards the final end of developing oneself intellectually, emotionally, and physically,

and of utilizing with excellence the capacities that are distinctly human. Individual happiness

cannot be separated from the good of the community, since the communityis the completion

and end of human activity.

The aim of human life is also being defeated here as the subordinate ends itself are not being

achieved, the basic right to life and liberty as enshrined in article 21 which includes the right

to speedy trial and the right of equal opportunity to defend themselves as part of article 14 is

not being enforced well because of which the individual will not seek happiness which is the

ultimate aim of human life.

So ultimately telos of both the Indian judiciary as well as that of human life fails in Indian

context in reference to certain basic rights and liberties.

Conclusion:

Mounting of arrears of cases in courts, particularly in High Courts and District Courts, has

been a cause of great concern for litigants as well as for the State. It is a fundamental right of

every citizen to get speedy justice and speedy trial. This fundamental requirement is not only

for the individuals, as their basic rights and liberties are being violated but also the purpose of

good judicial administration which is being hampered. The fundamental requirement of goodjudicial administration is speedy justice.

Inordinate delays in the investigation and prosecution of criminal cases involving serious

offences and in the trial of such cases in the Courts is a blot on justice system. The objective

of law and the societal interest in setting the criminal law in motion against the offenders with

reasonable expedition is thereby frustrated. The adverse effect of delay on the society at large

10www.plu.edu/nelsoned/courses/115/studyguide/aristotle.html


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is immeasurable. The fear of law and the faith in the justice system is eroded irretrievably;

according the Indian judicial system needs reformation.


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BIBLIOGRAPHY

BOOKS REFERRED:

1. Michael Sandel, Justice: whats the right thing to do? Farrar, Straus and Giroux, 2010.2.

John Rawls, His life and theory of Justice by Thomas pogge, Oxford University press,2007.

3. Richard Kraut, Aristotle: Political philosophy, oxford university press, 2002.

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speedy trail jurisprudential aspect