The Union Law Minister, Mr. M. Veerappa Moily, has recently announced that the number of undertrial prisoners languishing in various jails across the country would be reduced by two-thirds within six months . Under the Law, the Government has powers to release convicted prisoners after certain years of imprisonment. It has no role when the matter involves any undertrial prisoner or accused. Of course, the Government can, at any time, withdraw any case pending in a court of law, as well deny sanction to prosecute any accused, in cases where its sanction is required.
The convicting or freeing of undertrials falls within the ambit of the judiciary. The reason for such a step is that prisoners suffer because of delays in trials and there were many languishing in jails only because they could not get adequate legal aid. In some cases, prisoners have been behind bars for more than the maximum term of imprisonment for offences they had been charged with.
According to the Law Minister, Chief Justices of High Courts would appoint a task force to monitor the scheme. The task force, under the chairmanship of the State Legal Service Authority or a senior judge, would depute teams to visit jails and identify prisoners who deserved to be freed. The teams would look into individual cases to identify those who were entitled to be released . The Law Minister added that "of the undertrials, roughly around 200,000 have been in jail for several years essentially because of delays in the justice delivery system." It appears that Union Cabinet has approved the plan.
On the face of it, the plan looks excellent and a small step to decongest the jails.
In a survey conducted and released in November, 2009 by the International Centre for Prison Studies, King's College, London in 218 countries and territories, a total of 3.73 lakh prisoners are lodged in nearly 1,336 prisons in India . As per the study, more than 9.8 million people are held in different prisons throughout the world. The study stated that maximum number of prisoners across the globe are in jails of the United States , which has 2.31 million. It is followed by China (1.57 million), Russia (0.89 million) and Brazil (0.47 million).
The real problem does not lie with the courts. It is with the Government, who knowing fully well, what is required to be done to solve the problem of delay in the courts, is seeking to skirt the issue.
As per the information furnished by the Law Minister to the Parliament , in December, 2009, a total of 31,139,022 cases were pending in the courts across the country .
According to one estimate, the number of Judges required to dispose of the pendency promptly is 1547 High Court Judges and 4400 Judges in Subordinate Courts.
For speedy and quick disposal of cases, several committees have been formed by the Government of the day. In 1924, a Committee was formed under the chairmanship of Justice Rankin. After independence the other committees constituted include: Justice S.R. Das Committee in 1949, Justice J.C. Shah Committee in 1972, Satish Chandra Committee in 1986 and Justice V.S. Mallimath Committee in 1990. But the situation has not so changed from 1926 to 2010. The Law Commission in its 120th Report submitted in 1987 examined the problem of understaffing of judiciary and recommended 50 judges per million of population instead of the present number 9.5.
The inadequate number of judges is a major reason behind delay in disposal of cases. Thus, the main cause of judicial procrastination is not in the hand of judiciary but in the hand of executive and administrative wings. Former Attorney General for India Mr. Soli J. Sorabjee in a lecture in London lamented the laws delays and observed that the criminal justice system in India was on the verge of collapse on this reason. He also observed, "Justice delayed will not only be justice denied, it will be the Rule of law destroyed." More than 60 per cent of pending court cases in India are the result of "State" action or inaction because some official of the Central or State Government or agency has failed to act justly towards a citizen or a group of citizens. The same observations have been made by the Supreme Court more than once.
The Arrears Committee headed by Justice V. S. Mallimath (1990) has identified the following causes for accumulation of arrears of cases in the High Courts:
- Litigation explosion;
- Accumulation of first appeal;
- Inadequacy of staff attached to the High Court;
- Inordinate concentration of work in the hands of some members of the Bar;
- Lack of punctuality among judges;
- Granting of unnecessary adjournments;
- Indiscriminate closure of courts;
- Indiscriminate resort to writ jurisdiction;
- Inadequacy of classification and granting of cases;
- Inordinate delay in the supply of certified copies of judgments and orders, etc.
The problem of court pendency, delay and quick disposal of cases is not something new. It is endemic. Band aid in letting off the criminals would not work and would not even touch the fringe of problem of delays. The initiative taken by the Law Minister is commendable, as he is the first person to take some steps, however small, in tackling the problem. But it does not go far enough to alleviate the misery of the common man seeking justice. He should go whole hog and take still bolder steps as suggested by several Committees and the Law Commission. The Government must remember that the dead cannot cry out for justice; it is a duty of the living to do so for them. It cannot be only for one side alone, that is the people in the jail, but must also be for both. If the country does not maintain Justice, Justice will not maintain us.