Official apathy delays the case that may put an end to the pendency of criminal appeals in India

Pendency relating to criminal trials operates as an 'engine of oppression', and the people who languish in jails more often than not belong to poorer sections of society.

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ON May 10, a three-judge division bench of the Supreme Court comprising Justices L.Nageswara Rao, B.R. Gavai and A.S. Bopanna, passed an order pertaining to inordinate delay in disposal of criminal trials that acknowledged the affidavits and status reports filed by the counsels on behalf of some high courts under scrutiny relating to the matter. This matter garnered national interest when a bench of the Supreme Court comprising Justices Rao and S. Ravindra Bhat had, in an order dated June 15, 2020, lamented the number of criminal appeals pending at various high courts, the scale of which made for staggering reading.

For example, the High Court of Allahabad was seized of 1,42,017 criminal appeals pending for 30 years or more; data for which was obtained via the National Judicial Data Grid and was of 2020 and would naturally have increased since then. On the other hand, the Rajasthan High Court had 242 criminal appeals pending for 30 years or more; the Madhya Pradesh, Jharkhand and Punjab & Haryana high courts each reported figures above 10,000 criminal appeals pending for 10 to 20 years. Taking note of the alarming numbers, the Supreme Court bench immediately ordered the state counsels to segregate the data based on eight non-exhaustive guidelines in coordination with prison authorities and legal service authorities for the speedy disposal of such long pending cases.

Also read: The debate around pendency in the Supreme Court needs a dash of empiricism

While hearing this matter time and again, the Supreme Court has placed emphasis on a particular point of significance. During the period when undertrials are languishing in jail, their appeals at the high court have no possibility of being heard unless an order of expeditious hearing is passed by the high court seized of the matter or such a direction is recorded by the Supreme Court. However, to this effect, courts are constrained from making such observations pertaining to criminal appeals as it vitiates the idea of parity for similarly placed litigants. The Supreme Court went a step further to note that the inability of high courts to redress criminal appeals in an expeditious manner should not become a ground for such accused persons to be enlarged on bail. The result of which is that the status of undertrials languishing in jail has not changed.

Government's lax attitude in relation to the case

In the latest hearing of this matter recorded on May 10, the Supreme Court directed the Additional Solicitor General (ASG), K.M. Nataraj to provide his suggestions and inputs to reduce the pendency of criminal appeals pending in High Courts. However, what is interesting to note is that the Office Report prepared for the aforementioned order (an internal court document which is publicly available, used to apprise lawyers and judges of documents filed) notes that the Solicitor General, Tushar Mehta has not filed any document or note pertaining to this matter. This is especially important, as the Supreme Court had requested him to do so as early as July 2020, which has also been recorded in the court's order. Additionally, the court had directed him to evolve suggestions and possible solutions to the matter as early as November 2019, which is also recorded via a court order.

Also read: What does data on pendency of cases in Indian courts tell us?

This fact assumes importance because the next date of hearing for this matter has been fixed for August, which would be after the Supreme Court's summer vacations. Further, this becomes even more critical as all the momentum and traction this matter has been able to gather, largely due to the perseverance of Justice Rao, would dissipate since Justice Rao is set to retire on June 7. Normally, the protocol dictated for such cases is that the matter would be placed before a bench of different composition and would have to be looked into afresh unless a judge who was earlier part of the various bench compositions that heard the case is a part of the fresh bench.

Why this case is so important

Instances of matters such as this are not new at the Supreme Court or high courts in India. The courts and this country have witnessed the culmination of some of the most bizarre instances of 'justice delayed is justice denied' such as when the Allahabad High Court acquitted a man in February this year, 40 years after his conviction by a Sessions Court, on the ground that the case against him had not been proved beyond reasonable doubt. The Delhi High Court too, while acquitting a man earlier this month who was convicted of an offence in 2007, observed that unduly long periods of delay in disposing criminal trials would vitiate the objective sought to be achieved by Article 21 of our Constitution. Even the court of the Chief Justice of India ('CJI') has not been spared from such matters, as a three-judge division bench led by CJI N.V. Ramana, in February this year, granted bail to an accused who had served over 14 years of actual custody as his bail application had been pending at the high court for nearly ten years.

Also read: Egregious, against constitutional principles to allow accused to languish in jail during trial pendency, says Delhi HC; grants bail to five accused in Delhi riots case

The aforementioned cases, just from this year, sufficiently indicate the deplorable situation surrounding pre-trial detention and the situation of convicts languishing in jails for long terms. In the Supreme Court's judgment in the case of Common Cause versus Union of India (1996), Justice B.P. Jeeevan Reddy remarked that the practice of pendency related to criminal trials often operates as an "engine of oppression", and that the people who languish in jails more often than not belong to poorer sections of society.

While it is universally agreed that issues of this nature cannot be resolved overnight, it is pertinent to note that in the order dated May 10 mentioned at the beginning of this piece, the suggestions of ASG Nataraj are awaited.

Also read: Criminal Justice Reforms will Make Plea Bargaining Effective in Reducing Pendency of Cases

On this note, it would be appropriate to reproduce the words of Irish playwright, critic and political activist Bernard Shaw, which were quoted by Justice V.R. Krishna Iyer in the Supreme Court's judgment in Mohammad Giasuddin versus State of Andhra Pradesh (1977) which are as follows:

"If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."