“No person shall be deprived of his life or personal liberty except according to procedure established by law”, says Article 21 of the 1950 Indian constitution. The negative covenant prescribed by this article does not prevent the state from killing a person or incarcerating a person – the only restriction on this right to kill or imprison is that the state must follow some procedure which has been prescribed.
It is the right of every citizen, and the duty of every law enforcer to know the procedures which permit the removal of a person from society, whether permanently or temporarily. By and large, the due procedure that is followed today is contained in the Code of Criminal Procedure – a law enacted by the Parliament of India in early 1974. One of the main reasons for the consolidation of the procedural code was the desire of the parliament and the recommendation of the first Law Commission that every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society.
It was perhaps this intention which became a part of the written law in the form of Section 309 of the Code of Criminal Procedure. This section fairly guarantees that the trial of an accused shall take place as expeditiously as possible. In fact, this section makes it obligatory for the judge to hold proceedings on a day to day basis especially when the examination of witnesses has begun. Any adjournments have to be explained by the judge in writing and a strong hint is provided that whenever either side seeks an adjournment, they must be required to pay costs to the court.
As always, the intent of the legislature and the practice in courts have little in common.
While the legislature desired, that a trial once started, should be finished in one session, possibly spread over multiple days, it is not unusual today to see trials continuing for months, years and decades. It is also not unusual to find the accused under-trial incarcerated during the length of the prolonged trial despite a provision in the section that “remand” ought not to be for more than fifteen days at a time. In some cases which have come to light it has been seen that the accused under-trial has spent more time in jail during the trial, than he would have had to spend in jail even if he had been held guilty and punished with the maximum possible sentence.
It is worth remembering that the International Covenant on Civil and Political Rights which India has ratified and which is therefore a part of Indian law since 1979, makes it obligatory that
Anyone arrested or detained on a criminal charge […] shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody […].
The fact that the Convention is part of Indian domestic law, does not need much discussion, the issue also having been finally decided by the Supreme Court in the People’s Union for Civil Liberties case in 1997.
It is also worthwhile to notice that the European Convention on Human Rights also imposes a similar obligation on the state to initiate and conclude a trial quickly. The European Court in Strasbourg has taken governments to task repeatedly for their failure to ensure quick and speedy trials and has gone on to discharge accused under-trials on “process grounds” simply because their human rights were violated by the failure of the prosecuting agency to conclude their trials within reasonable time.
Some years ago while interning in a prominent Barristers’ Chambers in London; I had the occasion to ask out one of the Queen’s Counsel for dinner. The date I suggested had to be changed because the Silk had blocked off a five day period for a trial he was conducting. The court had not only intimated the date of the beginning of the trial to the barrister, but had also set the date on which the trial was to conclude – a useful lesson, and one worth emulating indeed.
Its not that we have not had speedy trials in India – Bhagat Singh’s trial for the assassination of Saunders and the eventual dismissal of his appeal by the Privy Council took less than half a year.
Unfortunately however, lawyers and judges have got used to hiding behind statistics to justify the adjournments in criminal trials. The mandate of Section 309 notwithstanding, trials are adjourned endlessly and for every reason except those envisaged in the Act. Each adjourned date means that the judge and the lawyers need to refresh their memory about the facts wasting precious court time and requiring still more imprisonment of the accused and a posse of policemen to escort him to the court.
The phase of militancy in Punjab in the 1980s and 1990s gave the “system” yet another excuse to turn a blind eye to the violation of the law and the rights of the accused. The days of terror were not conducive to day-to-day trials, we were told; and for various reasons, the trials had to be adjourned time and again. Be that as it may, the same reason can not possibly shield our incompetence and lethargy today.
Justice KT Thomas, speaking for the Supreme Court a decade ago said volumes when he wrote
“It causes anguish to us that in spite of the exhortations made by this Court and a few High Courts, time and again, some of the trial Courts exhibit stark insensitivity to the need for swift action, even in cases where the accused are languishing in prisons for long years as undertrials only on account of the slackness, if not inertia, in accelerating the process during trial stage.”
On another occasion, the Court had to lament
“Thus, the legal position is that once examination of witnesses started the court has to continue the trial from day to day until all witnesses in attendance have been examined […] The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. […] Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with immunity. Even when witnesses are present cases are adjourned on far less serious reasons or even on flippant grounds”
There are scores of judgments where the Supreme Court has had to specifically direct the trial court to follow the law and to conduct day-to-day trials; which in itself is a sad comment on the “system”. A judgment of the Supreme Court is the law for the High Courts and subordinate courts – but possibly not a law that they care to bear in mind while depriving a person, who has not yet been convicted, of his liberty.
