The rise of incidents of encounters that receives public approval is linked to erosion of rule of law and looming lawlessness. It also reflects the diminishing faith of public in judicial systems as places of justice. This movement away from due process to seeking instand justice is analysed by the author by looking into judicial delay and inaccessibility.
Magna Carta, the great charter of rights, states that “To no one will we sell, to no one will we deny or delay right or justice.” This principle is followed by legal systems across the globe. Furthermore, the legal maxim, “Justice delayed is justice denied,” highlights that justice loses its worth when there is a delay in justice delivery.
The issue of delay in justice delivery is not a new phenomenon as there are cases languishing for decades in Indian courts. The Law Commission of India and various committees appointed by the Supreme Court and Government to examine this have also been exercised about it and have suggested reforms for the same.
Justice delayed erodes Public Faith
The Law Commission of India in its 239th report noted that inordinate delays in investigation and prosecution of criminal cases eroded the fear of law and the faith of the people in the judicial system and have even questioned the legitimacy of the judiciary.
There are many examples to illustrate this.
Bharat aka Akku Yadav was a notorious criminal who was murdered by a mob inside the court premises at Nagpur in 2004. Observers noted that it was the feeling that he needed to get “instant” justice as the law would take years.
In State of Maharashtra v Eknath Duryodhan Chauhan, the Additional Sessions Judges deciding on his murder case noted that he had twenty-five cases registered against him for charges of murder, robbery, extortion, rape and so on.
The court observed that many people had complained against him but no timely legal action was taken by the police. In fact, the police provided him with liquor while he was in police custody and were seen to be favouring the accused.
Akku Yadav was arrested many times but was granted bail every time. The court opined that it was police inaction that led the public to take the law into their hands. Lastly, it was the failure of law due to which people dared to murder Akku Yadav.
Other incidents, such as the encounter of the four accused in the rape and murder of 25-year-old veterinarian in Hyderabad and Vikas Dubey’s encounter in Uttar Pradesh show the erosion of public’s faith in the judicial system. These encounters were celebrated silently by many throughout India as they felt that instant justice had been delivered.
These incidents imply that ‘Instant Justice’ is preferred by people more than due process.
Why do People want ‘Instant Justice’?
People are afraid of going to the police. There have been incidents where the victims and witnesses were harassed in this process. Delay at every stage of this process causes frustration to the people.
People assume that police and courts are only for influential people as the cost of approaching them is high. Significantly, the title of the 239th Law Commission report was “Expeditious Investigation and Trial of Criminal Cases against Influential Public Personalities”.
Some people fear that approaching the court will cause more problems for them. Even if somehow they muster the courage to register an FIR then it is not very difficult for the accused to get the bail, as it happened in the Akku Yadav case.
Pending Cases Piling Up
As per the 239th Law Commission Report, there were 72.58 lakh cognizable criminal cases under IPC and 48.54 lakh other cases pending trial at the end of 2010. Only in 55.88 lakh (both IPC and other) cases trials were completed in that year.
While the conviction rate in 2010 for violent crimes such as an attempt to commit murder and rape was 27.7%, the conviction rate under IPC for all cognizable crimes was 40.7%.
The situation has not improved much in recent years. According to the National Crime Record Bureau Report 2018, there were 33.15 lakh persons who got arrested for crimes under IPC, and 8.64 lakh persons were convicted (conviction rates for murder and rape were 38.1% and 25.4% respectively).
When a judgment is delivered after a considerable delay in trial and prosecution of the case then the right to a speedy trial is already violated as held in Hussainara Khatoon v State of Bihar [1980 SCC (1) 81]. Definitely the victim gets justice in the end by due process, but is it worth achieving if the guilty person is convicted after a long time gap? The delay in the same becomes a punishment for victims of the crime.
Therefore people are more interested in ‘instant justice’ as the justice with due process of law takes time. This is not to say that the idea of ‘Instant Justice’ is the correct way but inordinate delay in trial and prosecution (due process) makes people choose this method.
They are happy with this kind of justice as it does not involve delay, which according to them is the usual thing in the courts. Author George Bernard Shaw said, “The primitive idea of justice is partly legalized revenge and partly expiation by sacrifice.”
Reforms for Justice
Reducing the long delay in trial and prosecution by completing the process with fast speed would not be useful as it will lose its worth and it won’t be just and fair.
Just and fair process is enshrined in Part III of the Indian Constitution as the Fundamental Right of the individual. Therefore, there has to be a reasonable timeframe within which every stage of the process has to be completed where an extension may be given only on proof of special circumstances.
The persons responsible for delay in the process should be punished by the court accordingly.
Further filling of vacancies for the posts of judges and police personnel and the appointment of more judges can reduce the delay in justice delivery. Since the role of the police is to assist the court in the administration of justice, police personnel should be provided training required for conducting a professional investigation.
There have been instances where police authorities were found lacking in elementary knowledge of Criminal Law. Therefore Police authorities are to be made aware of the latest judgments or orders of the Supreme Court and respective High Courts.
In 2000, the government had set up a committee for reforms in the Criminal Justice System under the chairmanship of Justice V. S. Malimath. The committee noted: “The existing system weighed in favor of the accused and did not adequately focus on the justice to the victims of the crime.”
Some of the important recommendations of the Committee are as follows-
The supervision by the Judicial Magistrate of the investigation in order to improve the conviction rate wing as it is practiced in France, Germany and other countries following the inquisitorial system.
Separating the investigation wing from the Law and Order. Since both are duties of police therefore one duty should not affect the performance of another.
A Police Establishment Board to be set up for posting and transfer of police authorities.
A strong mechanism for the witness protection and the judge should intervene in case there is harassment of the witness during cross-examination.
A petition titled Prakash Singh v Union of India [2006 (8) SCC 1] was filed in 1996 regarding the abuse of power by the police officers. The judgment, in this case, was delivered in 2006 wherein the Court after considering suggestions of various committees observed these things for police reforms:
Constitution of State Security Commission in every state to stop unwarranted influence and pressure on police by the state governments.
Separation of investigation wing from the law and order to ensure speedier investigation.
Setting up of the Police Establishment Board responsible for the posting, transfer, and promotions of the police.
Constitution of Police Complaints Authority for inquiring into complaints against the police officers at every district level.
The Preamble to the Indian Constitution states that justice shall be secured by the State and if there is a delay in securing timely justice then it is just implementing the rule of law in letter and not in spirit.
(The author is an advocate based in Rajasthan. He holds an LLM degree from NALSAR University of law with specialization in criminal law.)