Just about everybody has an opinion on legal delays. Some, obviously exaggerated, comments put the backlog clearing schedule at a couple of hundred years. Nice after-dinner banter, but way off the mark. Last year, Indian courts cleared two crore cases. So, how come there is still a huge pending docket? Simply because another couple of crore fresh cases were added. In short, if no new case is added for two or three years, there would be no work for judges, lawyers or the staff.
But, Nirvana is not in sight.
If it is any consolation, other countries have the same problem. Besides those that know of no rule of law, civilised nations, ones that believe in sensible justice, have many pending matters. This phenomenon is not new. Charles Dickens, writing over a hundred years ago, lampooned the system by saying that the present litigating generation did not even know each other! The sins of the ancestors were visiting on their descendants.
A train-driver is manhandled for a signal failure; a bus-driver abused for delay due to a traffic jam. So it is with the judicial system—where judges are the visible face. The truth, however, is a bit different. The men in black robes are fully aware of the problem and many do their best to make amends; often to the annoyance of the lawyers and their clients.
Canada has a system akin to ours and it has similar problems. Here, we need to differentiate between the two types of cases, civil and criminal. While most of us are more in touch with the former, it is really the latter, criminal matters, that need urgent attention. Those involved are invariable poor. They lack representation and proper assistance. They cannot afford bail; nor can they provide sound sureties. Many are devoid of sharp reasoning. They have been nabbed for an assortment of minor crimes; drunkenness, drugs, pick-pocketing, ticketless travel, vagrancy, loitering.
While in custody, they are transported at regular intervals in the black marias, only to be herded back at the end of the day; where they are prey to craven cops. No one counts the days, not even the accused. They simply linger.
This was a point of discussion in a Canadian case. All countries have provisions for speedy trials in criminal cases. One cannot be incarcerated indefinitely, without determination. In actual practice, it is a rule only on paper. In one case, a preliminary hearing was scheduled after three years! The accused were out, but the time-table was horrendous. Most guilty persons, out on bail, look forward to the ‘tareek-pe-tareek’ progression. Delay in the day of reckoning is big comfort. But Damocles should know that it only one hair away.
In Canada, the arguments for unreasonable delay were for the accused to prove. Conditions to be met, to prove delay, were so dicey that the Supreme Court remarked that “…. it was a throw of the dice.” In effect, though the law existed, its implementation was extremely tenuous. So when one Barret Johnson, charged with drug-trafficking, sought relief for delay, the Bench scratched its collective head to find a solution.
Readers will remember our old friend, the reasonable man. We ask that they now decide on the length of the ‘reasonable delay’. What should it be?
You be the judge and answer this conundrum.
What should the time be? A month, a year, three years, five or ten? Each answer will be the outcome of personal experiences. So, how did the judges decide? They concluded that the outer limit should be 30 months for the superior courts; 18 months for an inferior one. It was a majority decision and at least four judges had reservations about such a fixation. We sympathise with them.
And this is what, in law, is called a legal fiction.