] Lastly, the High Court rejected the State’s argument that laying down an outer limit would be tantamount to legislation, and proceeded to set an outer limit of seven years for the conclusion of trial in offences other than capital ones. Moreover, the Patna High Court added that even a delay of under seven years could still be deemed to cause prejudice to the accused’s constitutional right of speedy trial, with seven years merely representing the outermost time limit. Moreover, upon breach of the outer limit, the burden shifted to the State to prove that the delay was direct cause of the accused’s own actions, or was the result of such exceptional circmstnaces as to merit condonation. The Jordan framework is arguably a crystallized version of this because it addresses two important aspects left unexplored by Madheshwardhari. First, it clarifies the exceptional circumstances which jusify prosecutorial delay. Second, while it too recognizes that delay below the ceiling can be unreasonable, it imposes on the defence the burden in the event of such a pleading to show that (i) it took meaningful steps to expedite proceedings and (ii) proceedings took markedly longer than they reasonably should have. C. Sheela Barse (II) and Others v. Union of India and Others In Sheela Barse, a division bench of the Supreme Court introduced a numerical ceiling for proceedings involving children below the age of 16 years for offences punishable with imprisonment of not more than seven years. The Court laid down two ceilings: three months from the filing of the First Information Report for the completion of pre-trial investigation and six months for the completion of trial. A failure to do so would result in the prosecution being quashed.  Thus, as evidenced by Madheshwardhariand Sheela Barse, the approach of Indian courts has been more ad hoc, wherein they had introduced a numerical ceiling for only certain categories of defendants or cases where the severity of punishment is lower, as opposed to the Jordan framework which applies unifromly to all criminal cases. The Jordan appraoch once again is arguably an improvement on the Indian approach because it affords the right to speedy trial to all defendants equally, and allows for easier application. D. Abdul Rehman Antulay and Others v. R.S. Nayak and Another The law on this matter as it currently stands is laid out in A. R. Antulay v. R.S. Naik, where a Constitution Bench of the Supreme Court declined to set an outer limit for quashing of proceedings and rejected the notion that without an outer limit, the right to speedy trial was elusive. Nevertheless, prior to reaching its decision, the Court highlighted that based on evidence, it was appropriate to conclude that the prosecution had not engaged in delaying tactics nor was it guilty of negligence, and that the delay of five years was a direct result of several interlocutory proceedings, coupled with the sheer volume of evidence. The implicit meaning here is clear and similar to the explicit Jordan framework viz. the cause of delay must be apportioned and prosecutorial delay condoned only in cases involving exceptional circumstances. Once again it is important to note the significance of interlocutory appeals. Barr observes that Canadian and Indian courts, following their British counterparts (unlike American courts) make extensive use of interlocutory appeals. This further bolsters the argument in favour of adopting a framework similar to the one in Jordan, given the similar nature of the Indian and Canadian legal system originating from English practices. Moreover, the Court proceeded to lay down factors such as the nature of the offence and accompanying circumstances, who the delay was attributable to, workload of the court and systemic institutional delay as some of the issues to be considered before deciding, as a question of fact, whether there had been inordinate delay in a particular case. Recognizing that it was the duty of the State (which encompassed the judiciary) to ensure speedy trial, the Court reasoned that it was pragmatic to recognize realities such as courts operating below their sanctioned strength, frequent strikes by members of the bar, etc. as causes of delay. In this respect, Antulay differs sharply from Jordan in that the Supreme Court of Canada explicitly ruled out chronic institutional delay as a reason for justifying prosecutorial delay, in what it hoped would serve as a clarion call to the government to adequately fund and staff courts and the Crown’s office, and appoint more judges in order to alleviate the excessive delays that people had come to tolerate. It is also pertinent to note that in Antulay, the Court only cites external factors, largely beyond its control, as reasons for delay. Perhaps this might have been true for when Antulay was decided. However, recent studies of the Delhi High Court have shown that judges were absent at least once in 51% of delayed cases resulting in a loss of valuable working time. Further, allocation of inadequate time to hear cases caused delay in 25% of the cases. While empirical data for other High Courts is not readily available, it is not difficult to imagine the situation is the same elsewhere. This serves to undercut the argument put forth by the Supreme Court in Antulay, and augments the reasoning in Jordan that each actor in the judicial system must work to reduce inefficiencies in their respective institutions, in order to achieve a legal system that works smoothly and upholds Constitutional mandates. Antulay affirmed Madheshwardhari Singh and Anr. v. State of Bihar to the extent that the constitutional right of speedy trial flowing from Art. 21 found expression in s.309 read in conjunction with s. 482 of the CrPC. It also affirmed Madheshwardhari by holding that the right to speedy trial extended to all stages of proceedings – investigation, trial and appeal. However, the Constitution Bench’s ruling in the present case rendered bad in law the time limits put in place in Madheshwardhari and Sheela Barse. Moreover, Antulay also overruled Sheela Barse with respect to the consequnces arising from inordinate delay. While in Sheela Barse the division bench had ordered proceedings and/or conviction to be quashed, in Antulay, the Constitution Bench ruled that it was also open to court to pass such appopriate orders to expedite trial or ensure conclusion within a specific period or to commute the sentences, if the matter came up post-conviction. Thus, Antually differs fundamentally from the Jordan framework with respect to the lack of an outer time limit, and the automatic quashing of proceedings that would result if such limit were breached. Antulay also differes significanty from the Jordan frame
work with respect to the presumption of prejudice to the accused in the face of undue delay. The Jordan framework deems the accused to be prejudiced in the event of a breach of the time ceiling. On the other hand, Antulay (perhaps correctly) recognizes that every delay does not necessarily prejudice the accused, and may in fact work to her advantage. Neverthless, both the Joradan framework and the Antulay guidelines find common ground in clarifying that legitimate procedural requriments taken in good faith cannot be deemed to be a delaying tactic by either party. E. “Common Cause” A Registered Society through its Director v. Union of India and Others A division bench of the Suprme Court issued numerous directions with regards to the automatic quashing of proceedings or acquittal of the accused if pendency is more than more than the prescried period. The presribed period varied from one to two years depending on nature of the offence and punishment prescribed under the IPC. F. Raj Deo Sharma v. State of Bihar In Raj Deo Sharma, a three judge bench of the Supreme Court laid down an outer time limit of two years for the completion of trial for offences punishable for a period under seven years and a time limit of three years for offences where punishable for a period exceeding seven years. Further, in a similar vein to Jordan and the aforementioned Indian case law, delay attributable to the conduct of the accused would not oblige the State to end the prosecution, and exceptional circumstances in the interest of justice constituted the only valid ground for granting additonal time to proseuction in the event of breach of the outer time limit. The Court further added that this was in addition to the directions issued in Common Cause. The Court considered the ratio of Antulay and felt its decision was in keeping with that by providng a mechanism for the effective enforcement of the right to speedy trial. G. P. Ramachandra Rao v. State of Karnataka The position in Antulay was reaffirmed by a seven judge bench of the Supreme Court in in Ramachandra Rao. The Court declined to prescribe a period of limitation beyond which proceedings would be automatically terminated for two reasons. First, it was of the opinion that it was advisable to leave the time limit for trial of offences elastic and up to the determination of the court concerned based on the facts of each case, rather than imposing a rigid time frame; the test according to the Court was whether the trial had been pending for such a length of time that the delay could be deemed to be oppressive and unwarranted. Second, the majority reasoned that despite a liberal interpretation of Articles 21, 32, 141 and 142 of the Constitution, such a directive would amount to legislation along the lines of the CrPC, and therefore, would be inappropriate for the Court to construct. In consonance with its reasoning, the Court left the door open for Parliament to enact such a law. The court also overruled Common Cause and Raj Deo Sharma on the basis of the doctrine of stare decisis, those decisions being contradictory to the Constitution Bench precedent in Antulay. The judges in declining to set a limitation period reasoned that the primary cause of delay was a poor judge-population ratio, and while a limitation period was intended to address the issue of arrears and delays, it would have adverse effects on access to justice and enable easy exit from justice by thwarting trial without adjudication on merits. The ruling in Ramachandra, reflects the opinion of the dissenting (minority) in R. v. Jordan in three ways. Firstly, the minority in Jordan held that while constitutional rights should be meaningful, the proposed ceilings had no basis in precedents which had laid down a balancing test to determine the reasonableness of delay. Secondly, the minority further stated that despite the greatly expanded role of courts with the advent of judicial activism, their principal task was adjudicating conflicts and not performing legislative functions, and the laying down of a judicially imposed ceiling amounted to the same.  Thirdly, the minority in Jordan argues that the proposed ceilings do less to concretize s. 11(b) and more to undermine it by placing new limits on it for reasons of administrative efficiency.  H. Recent Developments Recent developments to expedite the pace of proceedings and address a long standing issue since Hussainara wherein accused languished in jails without bail, has caused a division bench of the Supreme Court to order High Courts to issue directions to subordinate courts to adjudicate bail applications within a week and where the accused was already in custody, to ensure completion of magisterial trial within six months and sessions trial (for offences punishable by more than seven years imprisonment) within two years. The Supreme Court also ordered that efforts should be made to dispose off cases pending for more than five years by the end of 2017. It what seems to be an effort to improve judicial discipline, the apex court also ordered High Courts to monitor performance of judicial officers, making expeditious disposal of cases one of the factors on the basis of which their performance was to be evaluated. The Supreme Court also recommended the framing of an annual action plan by each High Court, fixing a tentative time limit for the disposal of criminal trials in subordinate courts. The Delhi High Court has also adopted independent initiatives such as penalising unnecessary court adjournments with a fine to enhance its functioning and better serve the interests of litigants. In recent times, the Malimath Committee has suggested that cases pending for over two years should be considered delayed while the Jagannadha Rao Committee’s case management rules (endorsed by the Supreme Court) has suggested timelines for different case types, the upper ceiling of which is also set at two years. I. Analysis The trend in Indian case law has been a series of progressive judgements by High Courts and smaller benches of the Supreme Court which greatly expanded prisoner’s rights on this front. This trend however, was halted the judgement in A.R. Antulay v. R. S. Nayak and P. Ramachandra Rao v. Union of India. The reducible element of the Indian Supreme Court’s reasoning in declining to set
an outer time limit in Antulay and P. Ramachandra Raois that first, an across the board time limit would be excessively rigid and contrary to the demands of justice because it would fail to take into account several case specific factors and would presume that the defence was prejudiced by delay. Second, imposing such a time limit is a legislative function and not a judicial one. The Jordan framework effectively addresses the issue of excessive rigidity that may accompany an outer limit on the conclusion on trial. Its flexibility lies in the manner in which it calculates delay. Deducting defence delay from the time taken in trial is the first step of the Jordan framework, thereby effectively addressing legitimate conerns that defendants may otherwise benefit from delay of their own causing. Further, while the delay is presumed to prejudice the interests of the defendant once the ceiling is breached i.e. determined to have not been caused by the defence’s own actions, the framework still permits the State to establish exceptional circumstances as the cause of delay. While these exceptional circumstnaces cannot be used to rebut the presumption of prejudice, they would prevent the automatic stay of proceedings which would have otherwise followed. What the framework does is shift the burden on the Crown to explain why the completion of trial has taken so long. Further, under the Jordan framework delay is deemed to prejude the accused. This too can also be attributed to the methology of calculating delay because once defnece delay is deducted, the breach of the ceiling can be wholly attributted to the Crown. The Indian Surpeme Court in Abdul Rehman Antulay and P. Ramachandra Rao calls upon courts to decide whether delay is attributatble to the defence or the prosecution as part of a larger balancing test involving other factors, as opposed Jordan which makes it a cornerstone of the new framework. The Jordan framework does not dispense with these numerous case specific factors; rather, it still carries out a balancing test of apportioning delay between the defence and the State, wherein case specific factors are crystallized and made subsurvient to actions of the two main parties to the proceedings. Thus, the Jordan framework does not represent as sharp a break from precedent as the minority opnion in it (similar to the opinion of the Indian Supreme Court in Antulay and Ramachadra Rao) protrays it to be. Lastly, the framework is flexible enough to prevent a miscarriage of justice by not unnecessarily hastening procedural requirements. The Jordan framework if it were to be implemented in India would represent a departure from the justice system as we know it today in one particular way viz. it would require the defence to actively participate in bringing its own client to trial, when traditionally the burden of brining the accused to trial in a reasonable time has rested on the State. Without demonstrable cooperation from the defendant, an application seeking proceedings to be quashed on the grounds of breach of the outer time limit would fail. The recent development in the Delhi High Court of penalizing unnecessary adjournments is a step in a similar direction. In the long run, any justice system can only function quickly and efficiently if all actors play their part and that includes the defence. This is the need of the hour in India, where the defence is notorious for seeking frivolous adjournments. V. THE WAY FORWARD The second reason of the Indian Supreme Court in declining to prescribe an outer time limit for trials is that such a time frame would be usurping legislative function. In P. Ramachandra Rao, the Court reasoned its role was limited to interpreting the law, laying down guidelines, principles and binding directions, declaring the law and filling in gaps in the law. While it is not the scope of this article to examine whether such a bar should be introduced by way of judicial activism or by the legislative route, it is worthy of exploring how the judges in Jordan arrived at the outer limit of 18 months and 30 months for the conclusion of proceedings. As highlighted in Jordan itself, the majority arrived at these ceilings by performing a “qualitative review of…every s.11(b) appellate decision from the past 10 years, and may decisions from the trial courts…[which] assisted in developing the definition of exceptional circumstances.” While there is value in qualitative data for it affords us insight into the types of circumstances in which judges condoned delay, relying solely on it is a major flaw with the Jordan framework especially because it uses qualitative data for the very narrow purpose as stated above. An outer time limit whether judicially evolved or legislatively prescribed should be based on sound the analysis of quantitative data and should be implemented in a precise and prospective manner so as to prevent mass dismissal of cases, which would result in a grave miscarriage of justice. Difficulty arises in ascertaining a time standard or a reference point beyond which a case is no longer considered as pending but as unreasonably delayed. Instituting such an outer time limit would require a large scale quantitative data collection from across all levels of courts and would involve analysing trends in filing, disposal, pendency, duration, etc based on which the mean or median time taken for processing various types of cases can be calculated. Based on this calculation, and adding to it factors such as resource constraints, statutory standards and court cultures, the optimal time for completion of trial can be fixed. This quantitative data, combined with qualitative data based on interviews of various stakeholders in the justice system and an examination of the life cycle of sample cases would together provide valuable insight into the state of the justice system and hence facilitate a more meaningful response. However, such a mammoth undertaking would require huge amounts of resources and for this reason alone (and not due to any apparent lack of authority of courts) perhaps might be better left to the legislature. Such a thematic approach could perhaps serve as an effective compromise between the blanket ceiling applied in Jordan and alleviate the Indian Supreme Court’s concerns about lack of flexibility of this approach by taking into account nuances of various categories of cases. Moreover, as was the original motive behind such an undertaking, such an exercise would also enable the computation of the requisite judge to population ratio that would be needed to reduce the backlog of cases in Courts and cope with new ones. Another approach which could address the concerns of the Supreme Court would be adopting case-specific time tables at the outset of trial for the completion of each individual case. This approach lends itself well to implementation via the judicial route and can be adopted in the interim as it would not entail the vast amount of pre-implementation data processing of the thematic appraoch. Addressing the Supreme Court’s concerns in Antulay and P. Ramachandra Rao, this approach would enable courts to take into account case specific factors such as the nature and volume of evidence, the judge’s case load, etc before adopting an individualised timetable for the completion of trial. This would put all parties on notice of their expections and would serve as an effective benchmark to measrure the progress of trial. This would provide the requisite flexibility to individualise the pace of proceedings, while simultneously addressing systmet
ic concers over unreasonable delay. Once again, the difference between such a case-specific appraoch and the Jordan framework is the manner in which they each calculate delay. The Jordan framework, as argued earlier, also effectively takes into account case specific factors, but it works backwards i.e. it sets an outer limit and then deducts the time taken due to defence delay and adds the time of prosecutorial delay. The case specific appraoch would take into account similar factors, and then proceeds to set an outer time limit for that particular case. Jurisdictions such as the United States and (now) Canada have mandatory time frames for the completion of trial. Canada has adopted this via the judicial route, while the United States has the Speedy Trial Act, 1974. The United States Speedy Trial Act provides for time limits, subject to certain caveats, for the completion of not only of various steps of trial but also of the trial itself. For instance, it provides for indictment (i.e the framing of charges) within 30 days of arrest or service of summons, the commencement of trial within 70 days from indicment or the date of the defendants first appearance in court (whichever is later) or the commencement of trial within 90 days of arrest when the accused is in pretrial custody. It also provides for sanctions in the event of breach of such timeframe. Simialarly, while the CrPC also prescribes time limits for stages of the case (for instnace section 167 prescribes a time frame of 60 to 90 days after arrest for filing the chargeshet, and section 309 provides general directions for the conduct of trial on a day to day basis once examination of witnesses has begun), it does not provide an outer time limit for the completion of trial nor does it provide for when each step of the trial should be completed. Considering that despite the aforementioned provisions of the CrPC having existed for a long time, delays in the criminal justice system have become systemic, thereby undermining the right to a speedy trial enshrined in Article 21. This renders either the enactment of a specialised Speedy Trial Act along similar lines as the United States necessary, or the incorporation of similar provisions in the CrPC. Such an outer time limit would force the Government and all stakeholders to address a culture of complacency that has become deep rooted in the Indian legal system. VI. CONCLUSION Systemic delays in the completion of trial in Indian courts has become a cause of much worry and anxiety. This is not to say that timely trials are not possible in India, as evidenced by the speedy completion of those cases which receive intense media attention. However, the sheer scale of the problem in India is unparalleled in the world. This problem is further exacerbated in the higher judiciary with statistics from 2002-2012 revealing that the higher judiciary is disposing fewer cases than those that are being instituted, adding to the problem of arrears and backlog. This article in no way means to suggest that the adoption of a framework akin to Jordan will be a panacea to all our problems. Nor would a blind application of the framework be suitable to India. India specific factors will need to be addressed when coming up with a framework that hopes to address the issue of arrears and delays. For instance, corruption in India is highly endemic and the Jordan framework is vulnerable to abuse in India if a wealthy defendant bribes the public prosecutor to conduct the trial slowly. Nevertheless, the Jordan framework represents one avenue to move forward with in order to tackle the mounting backlog of cases and to imbue true meaning into Article 21, to which so far we seem to be giving lip service. Perhaps, the institution of such a framework in conjunction with the various other recommendations of the Law Commission over the years will produce tangible and meaningful change.
“Acquittal of Kashmiri yout after 11 years: ‘University records show one was present in his class on day of blasts in Delhi’.” The Kashmir Monitor. February 17, 2017. https://www.kashmirmonitor.in/Details/118100/acquittal-of-kashmiri-youth-after-11-years-‘university-records-show-one-was-present-in-his-class-on-day-of-blasts-in-delhi (accessed August 29, 2017). Law Commission of India. Arrears and Backlog: Creating Additional Judicial (wo)manpower (Report No. 245). New Delhi: Government of India, 2014. National Crime Records Bureau. Prison Statistics India. Ministry of Home Affairs, New Delhi: Government of India, 2015. “The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.” The Constitution of India. Professional Book Publishers, 1950. Mrs. Maneka Gandhi v. Union of India (UOI) and Anr. 231 of 1977 (The Supreme Court of India, 01 25, 1978). Criminal Procedure Code. 1973. Hussainara Khatoon and Others (IV) v. Home Secretary, State of Bihar Patna. W.P. 57 of 1979 (The Supreme Court of India). Maneka Gandhi v. Union of India. (1978) 1 SCC 248 R. v. Jordan. 360608 (The Supreme Court of Canada). Barrett Richard Jordan v. Her Majesty The Queen. 360608 (The Supreme Court of Canada, July 8, 2016). The Constitution of the United States. http://constitutionus.com (accessed September 04, 2017). Barr, Carl. “Court Delay Data as Social Science Evidence: The Supreme Court of Canada and “Trial Within a Reasonable Time”.” The Justice System Journal 19, no. 2 (1997): 123-144. Krishnan, Jayanth K., and C. Raj Kumar. “Delay in Process, Denial of Justice: The Jurisprudence and Emperics of Speedy Trials in Comparative Perspective.” Gerogetown Journal of International Law 42, no. 3 (2011): 747-784. Sheela Barse (II) and Ors. v. Union of India and Ors. Abdul Rehmn Antulay and Others v. R.S. Nayak and Another. Choudhary, Amit Anand. Supreme Court sets timeline for courts for speedy trial, says bail should be decided in a week. March 10, 2017. http://timesofindia.indiatimes.com/india/supreme-court-sets-timeline-for-courts-for-speedy-trial-says-bail-should-be-decided-in-a-week/articleshow/57580761.cms (accessed September 11, 2017). Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar. Sheela Barse (II) and Others v. Union of India and Others. Baar, Carl. “Social Action Litiation in India: The Operation and Limitations of the World’s Most Active Judiciary.” Policy Studies Journal 19, no. 1 (1990): 140-150. Khaitan, Nitika, Shalini Seetharam, and Sumathi Chandrashekaran. Inefficiency and Judicial Delay New Insights from the Delhi High Court. Vidhi Centre for Legal Policy, 2017. Common Cause A Registered Society through its Director v. Union of India (UOI) and Ors. Common Cause A Registered SOciety v. Union of India and others. Raj Deo Sharma v State of Bihar. Peterson, Vandana. “Speedy up Sexual Assault Trials: A Constructive Critique of India’s Fast-Track Courts.” Yale Human Rights and Development Journal 18, no. 1 (2017): 59-109.