A Trishanku Existence: Complex and Adverse Consequences of Judicial Delay

According to Hindu mythology, Trishanku was a noble king who led a good life and his place in heaven was guaranteed. However, Trishanku desired to go to heaven in his human form even though it was against known cosmic laws. The sage Vishwamitra agreed to help Trishanku achieve his desire by performing a series of yagnas. Trishanku ascended to the heavens as a result of the yagnas, but the gods did not allow him to enter heaven in his human form. He started to fall back to earth upside down. He appealed to Vishwamitra again, who created a new world for him so that he could live there, but still upside down. Trishanku then lived there, always upside down, and continues to live there even today, belonging neither to heaven nor earth.

THE SOCIO-eConomiC dimensions of JudiCial delay

A judicial proceeding involves a contestation among people about their rights that are varied in nature, arising primarily out of human or commercial relationships. In a criminal trial, the life and liberty of individuals (accused, victim, and people at large) are at stake, while in civil matters, it is generally property or money that is at stake. While the rights involved in judicial proceedings are very important not only for the litigants, but for the society at large, except for a few circumstances, it is unlikely that the ordinary lives of litigants come to a standstill until the completion of such proceedings. Life continues outside legal proceedings, although undoubtedly, it will be affected by the incident causing the initiation of such proceedings, as well as the conduct of and outcome of such proceedings. In criminal matters, it is very likely that the incident leading to the proceedings has indeed brought life to a standstill—most certainly for the victims and their families, depending on the crime, and also for the accused and their families, based on whether the accused is/are released on bail when proceedings are pending.

The parties involved in judicial proceedings will, therefore, continue with their regular jobs, pay taxes, raise children, meet their family obligations, take on or discharge economic obligations, and generally go about life like everybody else. They do not get an exemption from regular life during the pendency of proceedings. If judicial proceedings take a long time, demanding throughout such period the consistent and full attention of the parties and requiring them to spend time and money, it will adversely impact their day-to-day lives. In its simplest form, the adversity could be in the form of time and money. Can one take leave from work or simply leave their young children or old parents under someone else’s care on each day the case goes on? Who will pay for the increased cost of doing so? If it is a company whose assets are the subject matter of litigation, will it be able to continue functioning normally and meet all its obligations towards its employees, contractors, customers, etc.? If it is unable to do so, how can one control the negative consequences of such inability? Similarly, if the sole property that one owns is the subject matter of litigation, and there is an interim order not to deal with it in any fashion, the party who owns it and depends on it for his day-to-day living will suffer on a daily basis until the litigation ends.

In a criminal proceeding, if the accused is in jail when the trial is ongoing, not only will his reputation, dignity, and standing in society be affected, but also, more importantly, his ability to earn and support his family will be taken away completely. With his liberty curtailed, he may also lose his employment, family, friends, and other social relationships, even though he has not yet been convicted. Others in his family will have to modify their lives to meet the gap created by his absence. They would need to find new means of economic and social support. In addition, they will have to help the accused defend himself in court by interacting with his lawyers and paying for them.

In India, as on 3 April 2019, there are more than three crore cases pending in the judiciary, from the lowest courts to the High Courts and the Supreme Court. The socio-economic effects that are briefly described previously multiply with each pending case and for every day during which these cases continue to languish in courts pending final disposal. According to the data available in the DAKSH database,¹ the average pendency of cases in the High Courts is three years, and average pendency of cases in the subordinate courts is six years. In the High Courts, the average pendency of civil cases varies anywhere between 1.7 years and 6.9 years, the average pendency of criminal cases varies anywhere between one year and 3.4 years, and the average pendency of writ cases varies anywhere from 1.1 years to 4.6 years. In the subordinate courts, the average pendency of civil cases varies between 2.7 years and 10.1 years, and the average pendency of criminal cases varies between three years and nine years.

Very much like Trishanku, litigants who face severe delays in Indian courts live in uncertainty for years without knowing the status of their rights and unable to take decisions that affect their personal, social, and economic lives. Unfortunately, they do not have the help of a modern-day Vishwamitra to cushion their uncertain status by creating an alternate world for them, insulating them from the adverse impact of judicial delays.

Understanding the Social and Economic Consequences of Judicial Delays

The social and economic consequences of judicial delay—on litigants, on the legal system, and on society at large—are difficult to measure scientifically as there is not only absence of data and information that can form the basis for measuring the consequences, but also a paucity of scholarly work.² However,various types of consequences can be identified and understood by examining real-life situations. While studying individual cases does not help us in analysing systemic trends, they are invaluable in examining socio-economic consequences, particularly in the absence of indicators on a larger scale. In this chapter, I look at four cases decided by the Supreme Court³ to identify, understand, and explain different types of socio-economic consequences.

1. On 20 February 2004, a nine-year old girl had taken the buffaloes (owned by her family) to graze in the fields, when she was sexually assaulted. A first information report (FIR) was lodged on the same day by her mother. The girl identified the accused during an identification parade. The girl was also examined medically, and sufficient medical evidence of the assault having occurred and to link it to the accused was gathered. The trial took place six months later, during which the girl denied that the sexual assault had taken place and also refused to identify the accused in the dock. The accused was acquitted. In an appeal by the state, the High Court of Gujarat observed that the sheer passage of time and the consequential delay in trial had allowed the accused to win over the girl (and her family). The High Court found that the medico-legal evidence available in the case was sufficient to show that the accused had committed the crime and that the denial by the girl was not enough to let the accused go scot-free and convicted the accused. In an appeal by the accused, the Supreme Court, on 28 September 2018, upheld the judgment of the High Court and agreed with the finding that the girl, who was from a poor family, had been won over by the accused through ‘coercion, intimidation, persuasion and undue influence’. The court considered whether the girl should be prosecuted for perjury but rejected the idea, observing that the girl ‘was barely 9 years old on the date of occurrence, that the occurrence had taken place 14 long years ago, she may have since been married and settled to a new life, all of which may possibly be jeopardised, we refrain from directing her prosecution, which we were otherwise inclined to order’.⁴
2. In June 1992, Hardeep Singh, a teacher, was arrested and brought to the police station in handcuffs, photographs of which appeared in the local newspapers. He was accused of taking money from various people for obtaining and providing, in advance, the question papers for certain pre-medical examinations. In August 2004, the trial court acquitted him. Hardeep Singh filed a writ petition seeking compensation for the trauma that he suffered, and the harm to his dignity and reputation caused by wrongful prosecution as well as the violation of a right to speedy trial due to the delays caused by the prosecution. An important fact was that Hardeep’s elder sister died a few days after his arrest, as she was apparently shocked to see Hardeep in handcuffs and suffered a heart attack. While a single judge of the High Court dismissed the writ on the ground that many adjournments had been sought by Hardeep during the trial, on appeal, a division bench of the High Court awarded him compensation of 􀚒 70,000, primarily on the ground that for five years between 1999 and 2004, the prosecution had not taken timely steps to produce and examine the witnesses. The division bench held that an expeditious trial resulting in an acquittal would have restored Hardeep’s dignity. The Supreme Court, on appeal, increased the amount of compensation to 􀚒 2,00,000.⁵
3. In 1952, Ram Prashad was allotted a house in Delhi by the government. The documents executed were between him and the government. He later allowed his brothers Krishan Gopal, Madan Lal, and Manohar Lal to stay with him. In 1977, the three brothers filed a partition suit against Ram Prashad, claiming that the property belonged to a Hindu joint family. The suit was dismissed in 1982, against which an appeal was filed and dismissed in 2000. An appeal to the Supreme Court was also dismissed in 2001. In 1992, Ram Prashad filed a suit for mandatory injunction, seeking to evict his three brothers from the property and seeking mesne profits. In 2011, the suit filed in 1992 was still going on after having seen several appeals to the High Court and the Supreme Court on various interim orders passed by the trial court. In 2011, the matter came to the Supreme Court on the question of whether costs imposed by the High Court on the appellants (legal heirs of the brothers of Ram Prashad) when they had appealed an order by the trial court regarding whether an issue (relating to court fees and jurisdiction) should be heard as a preliminary issue or as part of the final arguments, was justified. The Supreme Court dismissed the appeal and imposed a cost of 􀚒 2,00,000 on the appellants. It noted that the appellants had not only been moving one application or another (all of which had been dismissed with costs) on some pretext but also misleading the court on occasion. The court observed that the appellants had seriously created obstacles during the trial and virtually prevented its conclusion. The court further noted:
   We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. It is a typical example how litigation proceeds and continues and in the end there is a profit for the wrongdoer. The court also observed: We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations [sic]. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.⁶
4. On 8 April 1981, on the basis of a complaint alleging a demand for a bribe of 􀚒 1,000, a search operation was conducted by the police in Muzaffarpur during which certain chemically treated notes were allegedly recovered from Vakil Prasad Singh, then an Assistant Engineer in the Bihar State Electricity Board. A chargesheet, related to the alleged demand, was filed in February 1982. The Magistrate took cognisance in December 1982. The police filed an application for reinvestigating the matter, which was dismissed in 1983. Nothing much happened in the case until 1987 when it was transferred to Patna. Vakil Prasad Singh filed an application before the High Court in December 1990 seeking quashing of the Magistrate’s order taking cognisance of the offence as the Inspector of Police who conducted the investigation did not have jurisdiction to do so. The High Court accepted his plea, quashed the Magistrate’s order and directed investigation by an appropriate officer, to be completed within three months. Again, nothing happened until 1998 when Vakil Prasad Singh filed a fresh application before the High Court seeking quashing of the entire criminal proceedings on the ground that no re-investigation had taken place even after nearly eight years of the High Court’s directions for the same. The High Court finally heard the matter on 11 May 2007 (nine years after it was filed). At the time of hearing, the prosecution submitted that a fresh chargesheet had been filed on 1 May 2007! The High Court dismissed the application on 9 July 2007. An appeal was filed before the Supreme Court in 2007 itself and was heard in 2009. The Supreme Court held that Vakil Prasad Singh’s right to speedy trial under Article 21 was violated. It noted that the appellant had not contributed to the delay in trial; the prosecution did nothing for almost nine years after the High Court had ordered a fresh investigation; and even before the Supreme Court, the state was not clear if government sanction was necessary to prosecute the appellant and if so, whether such permission had been obtained. The Supreme Court dismissed all proceedings against the appellant, but noted that mere delay in prosecution is not sufficient ground to merit dismissal of charges in all cases.⁷

One System, Many Rights, Many Consequences

Case 1 mentioned previously focuses on the rights of the victim, Cases 2 and 4 highlight the rights of the accused, and Case 3 highlights the rights of civil litigants and the impact on those rights due to delay.

In Case 1, a gap of six months between the time of the criminal act and the trial was long enough for the accused to influence/coerce the victim to help him escape the consequences of his criminal act. And he nearly got away with it except for the persistence of the prosecution and the decision by the High Court and the Supreme Court to ignore the retraction by the minor victim. In India, a sixmonth gap between the commission of the crime and the commencement of trial would not even be considered a delay in the conduct of trial! This case, however, shows that in certain circumstances, even such a short span of time has severe consequences. The accused would have gone unpunished but for the intervention of the higher courts. The case also highlights the pitfalls of trials that go on for long periods and their potential for derailing the judicial process. The victim’s rights, to seek punishment of the perpetrator, would have been extinguished. Society at large would have been the worst hit, as the successful discharge of an accused charged with a serious crime would have engendered a lack of faith in the law, the police, and the judiciary, and contributed to a sense of lawlessness and lack of justice.

The case also highlights the particular susceptibility of the vulnerable sections of society, poor and children in this case, to severe consequences even from a small delay. A similar delay may not have caused the same consequences if the victim had belonged to a different social or economic class. This case is a clear example of the need to ensure a speedy trial in criminal cases, particularly where the victims are disadvantaged because of age and other reasons. The case also shows the rather easy relationship we have with the truth, as the Supreme Court observes that perjury is a serious problem in India and cites examples where victims have had to be prosecuted for recanting their statements. Such prosecution is not only ironical, as it targets victims and witnesses of a crime, but also shows the fragility of our legal system and society—an alarming inability to prosecute serious crimes in a meaningful fashion and reassure victims and society at large.

In Case 2, a long trial—more than 12 years—caused by delays of the prosecution was found to have caused harm to Hardeep’s dignity, resulted in trauma, and also violated his right to a speedy trial. More tragically, photographs of the accused in handcuffs were carried in the newspapers, resulting in the death of his sister due to a heart attack. The Supreme Court acknowledges that an expeditious acquittal would have resulted in restoring Hardeep’s dignity, which was adversely impacted because of the criminal charge brought against him. The social and economic impact on Hardeep is obvious enough—being accused of leaking examination papers would certainly have affected his reputation as a teacher and consequently his standing in society as well as his earning capacity. The impact on his family was tragically proven by the death of his sister. The long and unexplained delay by the prosecution also had an impact on the ability of the prosecution itself to prove that the accused committed the crime being alleged. It is not easy for witnesses to properly and accurately remember incidents that are nearly 10 years old, nor withstand serious cross-examination. Similarly, the delay also affected Hardeep’s ability to defend himself. Fighting a charge for a long time is not easy. It costs time and money, and money may be difficult to earn for people accused of a serious crime that affects their professional reputation. Moreover, it affects the accused’s ability to successfully challenge the prosecution’s case, particularly so if the witnesses he expects to rely upon are affected by the passage of time. The essence of a fair hearing that the judiciary promises is eroded by such long delays in criminal matters.

Inter-generational Impact

In Case 3, the cynical attitude of one set of parties saw a civil case being dragged on for more than 40 years even after they had lost their case in the final court. Many of the original parties had died and the litigation was being carried on by their family members even though their rights had been decided by the Supreme Court finally. Not only was there one set of parties continuing to violate a court finding against them, they were also continuing to trample upon the rights of their own relatives.

The social and economic consequences of long judicial proceedings multiply over time as they affect people of multiple generations. In these 40 years, since 1977 (when the proceedings first started) until 2011 (when the Supreme Court asked the trial court to decide the matter within a short time frame!), India has seen 10 prime ministers, witnessed a telecom revolution, and gasped at the marvel of the computer and the internet. However, Ram Prashad and his family were stuck in a time warp, fighting for the one piece of land that is dear to them. The social and economic impact on them is real, but will remain unknown to most of us.

The Supreme Court highlighted some social consequences by pointing out that wrongdoers are benefitting by delaying trials. Such a benefit arises because long trials essentially contribute to a convergence of legality and illegality. If courts do not move swiftly to ensure that an illegality is punished and legality protected, illegality will continue to flourish as there is really no incentive for people to act in accordance with law.⁸ In Case 3, even though there was a final decision in favour of Ram Prashad, his brothers and their families did not move out of the property. And by delaying the trial in the case filed by Ram Prashad for eviction, his brothers ensured that they continued to enjoy the property even when the courts had ruled that they did not have a right in the property. And Ram Prashad, despite having the courts rule in his favour, was unable to enjoy the benefits of such ruling. This convergence between legality and illegality not only benefits wrongdoers at the expense of law-abiding citizens, but also erodes the substantive rights guaranteed by law, which are sought to be protected by the courts.

The Joke Is on the System

Case 4 reads like a comedy of errors. A case is filed, but nothing happens for nearly eight years. The accused claims that the investigation itself was without legal basis after eight years. The High Court agrees with him and orders re-investigation to be completed within three months. The police do nothing. After eight years, the accused files a new petition in the High Court asking for quashing of the proceedings and pointing out that no re-investigation has taken place. The police do nothing for another eight years. When the matter finally comes up for hearing after another nine years, the police suddenly file a new chargesheet! The High Court says that such a delay does not mean that charges should be quashed. The Supreme Court disagrees and quashes the proceedings after another two years. So, after 27 years, we are none the wiser. We do not know if a crime was committed—maybe it was and maybe it was not! If a crime was indeed committed, we do not know if the accused was guilty.

While the case was in the courts, the accused probably continued in office for all 27 years (as the accused did not argue that he has lost his job and claim wages before the High Court and the Supreme Court). In such a case, what credibility did he have to carry on with his job while the case was pending? Was he able to take decisions in a proper fashion? Or did the pending case ensure that he was not able to perform his job effectively? Further, such long periods of inactivity allow the accused to influence the investigation and the process itself. Case 1 clearly exhibited the possibility of the accused influencing the criminal investigation and the judicial process. It is the credibility of the entire criminal justice system that is at stake in cases like this. What faith will other citizens who wish to file a complaint have in approaching such a system for justice, when it did not even manage to put the accused on trial for 27 years? The impact of such cases on society’s fight against crime and injustice is a deleterious and crippling one, to say the least.

No System of Fairness?

A long judicial process and consequential delay in decision-making violates the substantive rights of the parties to the case. Some important characteristics of a judicial system are—(a) the promise of a fair hearing for all parties involved, (b) a reasoned decision based on the applicable law and past decisions, and (c) the guarantee of the law to enforce the decision made by the court. All of these rights are either negated or adversely affected due to judicial delays. The mere passage of time affects the right to a fair hearing as the party’s ability to make herself heard properly is affected, as shown in Case 1. The ability to present a case was compromised, as the victim was subjected to social pressures to deny the crime committed against her.

Both Case 2 and Case 3 show how the concept of a fair hearing is lost by a long-drawn trial. A right to a fair hearing does not comprise only a right to present your case, but a right to present it properly within a reasonable time. Delaying the opportunity to present your case takes away the right of a fair hearing itself. The longer the trial, greater the chances that witnesses become unavailable, memories fade, and evidence becomes stale. Further, in long trials more often than not, judges and lawyers change over the lifetime of the case, adding to the erosion of the fairness of the trial. If one judge takes cognisance of the crime, a second judge records the examinationin- chief, a third records the cross-examination, and a fourth writes the judgment—hence, the element of a fair hearing is seriously compromised. Instead, if the entire process is completed by one judge, there will be better appreciation of the facts, witnesses, and the surrounding circumstances of the case, as the same judge will have interacted with the witnesses, the officers who investigated the case and the accused. For example, if a witness’ demeanour suggests that his credibility is in question, a new judge who takes over after the evidence is recorded will miss this crucial element while deciding on the guilt of the accused or while passing a sentence. Similarly, change in legal counsel also affects a party’s ability to effectively present his case. All of this erodes the fairness and equality that the judicial system guarantees.

Convergence of Legality and Illegality

A long judicial process means the continued violation of the substantive rights of the parties, or at least one party to the case. As Case 3 shows, one party’s illegality is likely to be rewarded and another’s legal rights are continuously violated because of the delay in judicial decision-making. In effect, the law and the judicial process fail to establish clear daylight between legality and illegality, indirectly encouraging the persistence of illegal behaviour.⁹ The social and economic consequences of such convergence are significant. The most obvious consequence is an increase in lawlessness and lack of respect for the rule of law. This further engenders an element of calculated social behaviour which seeks to benefit from the law’s failure, as the Supreme Court noted in Case 3. If there is an economic reward for continued wrongdoing or illegality, then there is no incentive to follow the law. In fact, there is a negative consequence of legal behaviour given the lack of economic benefit accompanying such behaviour when confronted with illegal behaviour. And, if there is economic incentive, even if it is a short-term incentive, accompanying illegality, then illegality will thrive. Even when there is a final decision declaring such illegality as wrong, it will be difficult to undo fully the economic and social consequences that have taken place when the judicial process is pending. This essentially forces the successful party to accept a fait accompli—a compromise on its substantive rights.

A Constant and Continuous Erosion

The socio-economic consequences of judicial delays are always difficult to capture at a systemic level. The monetary cost of delays can perhaps be quantified. DAKSH conducted a survey in 2016 to measure economic costs of delays and estimated that the economic cost of judicial delays on society is almost 0.5 per cent of India’s GDP.¹⁰ At a systemic level, social consequences are very difficult to measure, even though it is possible to understand them through individual case studies. Upendra Baxi goes to the extent of suggesting that it is only literature that can help us understand such social consequences.¹¹

In this chapter, I have attempted to understand the various dimensions of socio-economic consequences of delay through specific case studies. The case studies reveal that irrespective of the duration, delays exacerbate the consequences suffered by a person who is agitating for a redressal of their rights, which have been violated. Such consequences last several generations when the delays are severe, as evidenced by Case 3. Even when there is a short delay, as in Case 1, societal consequences can be detrimental to the rule of law itself. The four cases that I have examined show that while facts, extent of delays, and consequences are unique to each case, what is common is the judiciary’s clear failure to understand the adverse impact of delay. The impact is multi-dimensional. The cause is, however, simple and common across all the cases—a failure to decide cases promptly.

Notes:

1. Arunav Kaul, Ahmed Pathan, and Harish Narasappa. 2017. ‘Deconstructing Delay: Analyses of Data from High Courts and Subordinate Courts’, in Harish Narasappa, Shruti Vidyasagar, and Ramya Sridhar Tirumalai (eds), Approaches to Justice in India: A Report by DAKSH, pp. 92, 97, 98. Lucknow: DAKSH and EBC.
2. There are a number of studies that examine the social consequences on undertrial and convicted prisoners. For example, see, Razdha Parveen. 2017. ‘Impact of Imprisonment: Dimensions and Consequences’, International Journal of Humanities and Social Science Invention, 6(7): 59; Commonwealth Human Rights Initiative. 2011. Undertrials: A Long Wait to Justice, available online at https://humanrightsinitiative.org/ old/publications/prisons/UndertrialsPRCReport_2013. pdf (accessed on 19 April 2019). There are also various reports on the overall impact of judicial delays on certain industries, such as banking or financial services. See, Ministry of Finance. 2018. Economic Survey 2017–18. New Delhi: Government of India, p. 131, available online at http://mofapp.nic.in:8080/economicsurvey/pdf/131- 144_Chapter_09_ENGLISH_Vol%2001_2017-18.pdf (accessed on 19 April 2019).
3. I chose these cases randomly without following any particular methodology. The common thread among them is that they all showed up when I searched for ‘judicial delays’, ‘consequences of judicial delay’, ‘fair trial’, on the Westlaw India online platform (www.westlawindia. com database for Supreme Court judgments; accessed on 3 April 2019).
4. Hemudan Nanba Gadhvi v. State of Gujarat, 2018 Indlaw SC 903.
5. Hardeep Singh v. State of Madhya Pradesh, 2011 Indlaw SC 815.
6. Ramrameshwari Devi and Ors v. Nirmala Devi and Ors., 2011 Indlaw SC 411.
7. Vakil Prasad Singh v. State of Bihar, 2009 Indlaw SC 2155.
8. Harish Narasappa. 2018. Rule of Law in India: A Quest for Reason. New Delhi: Oxford University Press, pp. 157–161.
9. Narasappa, Rule of Law in India.
10. Harish Narasappa, Kavya Murthy, Surya Prakash B.S., and Yashas C. Gowda. 2016. ‘Access to Justice Survey: Introduction, Methodology, and Findings’, in Harish Narasappa and Shruti Vidyasagar (eds), State of the Indian Judiciary: A Report by DAKSH, pp. 137–155. Bengaluru: DAKSH and EBC, available online at http://dakshindia. org/state-of-the-indian-judiciary/28_chapter_15.html#_ idTextAnchor320 (accessed on 19 April 2019).
11. Baxi observes, ‘[I]t is very difficult to measure the impact of the rule of law, positive or negative, on individual citizens. It is only literature that gives us an understanding of the impact on individuals’, in Upendra Baxi. 2004. ‘The Rule of Law in India: Theory and Practice’, in Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the U.S., p. 336. London: Routledge Curzon.