Chapter 5

Delivery of Justice by Law of Equity

and Due Process
 Chapter 5
Delivery of Justice by Law of Equity and Due Process
5.1 Nature and Scope of Equity
The term "equity" derives from the Latin phrase "acquittal" that implies "leveling." Equity is the
name we give to the set of regulations which have usually supplemented universal law, where the
common law would have been too precise in its application. It has been achieved to promote
what is often referred to as equal justice, or even equity.
The Equity Court, Justice Court or Chancery Court shall be a court empowered to enforce
justice standards in cases brought before it, as opposed to law. Such courts began with appeals to
the Chancellor of the Lord in England.
The basic sense of equality is "just because it is founded upon the rules of environment,
fairness, justice. justice as established by some of the jurists can be quoted as the following:-
Aristotle, “Equity is the correction of the law where it is defective on account of its
generality”.
Sir Henry Maine, “Equity means anybody of rules existing by the side of the original
civil law, founded on distinct principles and claiming incidentally to supersede the civil law by
virtue of a superior sanctity inherent in those principles”.
Blackstone, “Equity, in its true and genuine meaning, is the soul and spirit of all law;
positive law is construed and natural law is made by it. In this way, equity is synonymous
with justice, in that, it is the true and sound interpretation of the rule”.
5.1.1 Equity
Indians, the Hindu Law established that, "in the event of a dispute between Smritis' laws, either
can be flowered as reasoning on equality concepts (Yuktivichar) would dictate the solutions."
Hindu rule was never stagnant and therefore incorporated democratic principles to suit the
demands on the time. The later Smrikaras, namely Narada and Brihaspati, categorically agreed
that democratic principles are essential. Brihaspati has said "decisions need not be based on
scripture alone. Justice will collapse if the grounds-based values are not practiced. "These
grounds-based concepts may be called equity standards. Kautilya further specifies if the if
Dharma text is found to be contradictory to judicial necessity it fails and the power of law
prevails there. Yajnavalkya does not accept the possibility that Reason and Text will clash. He
restricts justification or justice to the supremacy of a dispute between the Sastras themselves.
Mohammedan rule even partly owes its origins to the ideals of fairness. This is also
defined as the principles of moral equity. Hanafi Sunni religion was established by Abu Hanifa,
who explained that, in his judge's choice of a constitutional system or moral nature to satisfy the
conditionality of the case, the rule of law based on assumption would be put aside.
The Indian legal past is quiet on the delivery scheme of double justice as it was in vogue
in England before 1873 for the practice of equal authority by the courts of Assets trials along
with the judiciary as directed to resolve those situations for whom the new legislation does not
contain, focused on "right, equality and good faith" concepts. Within the absence of clear
legislation on this issue, including in cases where there was no constitutional requirement to the
contrary, judges must adhere and behave according to the standards of fairness, equality, and
good conscience.
Across India, long though it became autonomous across 1947, the civil law theory of
justice has been practiced historically. However, the Parliament enacted the Particular Relief Act
in 1963 after the Law Com- mission's review and removal of the earlier 1877 "Special Relief
Act." Under the 1963 Statute, certain egalitarian principles were codified and made substantive
privileges, thereby eliminating the court's constitutional position in granting equal reliefs. The
privileges the foregoing is enforced under its 1963 Act:•
Recovery of possession of immovable property
• Broad contract output
• Instrument rectification
• Contract contraction
• Instrument cancelation
• Decrees to the Declaration
• Instructions •
5.1.2 Definition of Equitable Preferences: Equal rights and interests
• Equal rights have been established mainly for one or the other of three purposes:
I) maintaining trust,
2) Encouraging free trade and
3) Avoiding injustice.
• An unequal privilege occurs because, from the point of view of justice, a privilege bestowed on
one individual by statute would be a question of faith and a right bestowed on another.
"Practically equal privileges are simply additions and adjustments of existing property rights."
• The basic presumption is that justice complies with the law and that equal rights usually have
the same events and characteristics as the underlying legal benefit. They are devolving and may
be resolved, mortgaged and disposed of just the same as legitimate rights.
• Justice meets the statute and, as such, the legitimate or interest estate takes priority over the
equal or interest estate. In the event of a dispute between the legitimate owner and an individual
entitled to a reasonable interest, the judgment rule shall be found in the principle "where justice
is equal, the law shall prevail."
• As in the case of different unequal properties or assets, the law of deciding is illustrated by the
maxim: 'all equities are equivalent, the first prevails in time.'
• The most important characteristic of an equal interest, especially in relation to a legal interest,
is, to some degree, associated with a dispute and relies on the answer to the question: Are
reasonable rights and interests, such as civil rights and interests, Jura in r me, i.e. rights against
the whole nation, or are they Jura in person am, i.e. rights only against certain individuals?
The Maxims of Equity: The laws related to the practice of equal authority are based on
and extracted from these basic morality facts, the core concepts of human rights and
responsibilities. The ideals of justice which emanate from equality are the product of life
experiences. Those legal principles which define the ultimate origins of equitable doctrines are
known as equity maxims, some of which can be summarized as follows:-
Equity will not suffer because without a remedy it will be a mistake. The first one will
reign in time. When equities are equal, the rule prevails. The law shall be the law. The court will
decide that equity is equity and that equity follows the law. Equity will not be mistaken without
recourse.
1. Equity will not fail.
2. Equity is in line with the law.
2. Where equity is equal, the law prevails.
4. When equities are equal, they shall prevail first in time.
5. He who is searching for equity will do equity.
6. He must come to equity with clean hands.
7. Equity delays defeats.
8. Justice is equality.
9. Equity imputes an intention to meet a duty.
10. Equity looks at what should have been done.
11. Equity acts personally.
Each of these maxim has it‟s possess legal consequence and works as the guiding factor
for the courts in deciding practical problems. What maxim is to be invoked under a particular
situation depends on situations of each trials. What is required on the part of a judge is to be
sensible enough to discern the wrong recognized by law because from the legal perspective it is
more important to know as to „where lies the wrong than who did it‟ and apply the spirit of the
legal provision in disposing of the same in the larger interest of the society?
Justice in fact plays a significant role in judicial organization. In the modern hi-tech
society with the digitalization of almost all systems, a computer device would be a nice
replacement of a human being from the position of a judge because „feed the facts and laws into
it and get a judgment with all accuracy‟ would be a very good idea. But it would never be
possible, howsoever developed the digital world may be, for the simple reason that, to decide
something, what is required is a mind, and a machine doesn‟t have it nor will ever have also. To
judge something, it requires conscience and to judge a case, it requires a judicial conscience. No
doubt, there are so many things in the name of legal provisions, precedents, rules, etc. etc. but
what supersedes all is impartiality, fair play and a good principles which, again, stem from the
dictates of conscience and each case is to be decided on its own merits for it is an undeniable
cardinal principle of the entire legal system that „every case is a new case‟.
5.2 Due Process of Law
5.2.1 Introduction
The key objective of the judicial system is to achieve the long, complicated justice or equality in
accordance with the culture. The rule is one of the great engines of civilization in human society.
The growth of civilization is usually linked to the progressive advancement of a classification of
lawful rules with equipment to implement them regularly and efficiently. One is moral and must
survive in society as a civilized person.
 State and rule include a stable and unified society. Therefore, regardless of imperfections
and legal flaws, the rule is required. Several international constitutions have established the
ideals of judicial organization.
5.2.2 Concept of Due Process of law
It is very difficult to define and give full implications to the law process because, despite the
huge amount of research conducted by different authors, its significance and size are far from
fixed. In addition, the writers do not agree on the scope, existence, constraint and intent of the
correct protocol. Furthermore, the phrase 'due law process' is ambiguous and, on different
occasions, courts have specifically used and reinterpreted it in unique circumstances.
The due process has been developed and urban areas in the interpretation and application
of the written constitution of America. It appears as though the correct path is a correct to a plan,
a right to care through a physician and a moral or statutory justification centered on the premise
that people have a right to be handled equally. The assessment of the substantive justice is
focused on the interpretation of the due process. It is the courts but not the lawmakers that have
the power to decide which legislation is constitutionally legal in agreement with the Constitution
and the laws of the correct procedure. The proper procedure is often tied to the provocative
perception of natural rights. Throughout America, the word "equal" has been rendered "just,"
"correct," and "appropriate." In the sense of the nature of the culture, the judiciary is often able to
clarify and reinterpret the words "due process" in many respects. In Lessee v. Hoboken Property
& construction Co.21 Benjamin, J., the first examination into the concept into a free jury by the
US Court of Justice undoubtedly illustrated this interpretation of the words 'from statute to
ground' found in Magna Carta.
5.2.3 Kinds of Due Process
5.2.3.1 Procedural Due Process
The American legal structure split court trials into 'substantive due process' and 'procedural due
process'.' The procedural procedure is called the procedural due process when the judicial system
adjudicates the issue relating to the fairness of the procedure. Procedural due process protects
individuals from fairness and non-arbitrariness of the process adopted by the State in depriving
individuals of their rights. For eg, the practice of law would take into consideration adequate
notice, neutral jury, probability of proof to be provided and adversarial evidence to be cross-
examined, etc .. The due protocol is of restricted variety. The due procedure only guarantees that
a fair decision-making process is established by a State.

5.2.3.2 Substantive Due-Process

In America, substantial due process is created. Substantial due consideration guarantees the
continuity of the force of government law with the legislative meaning. The Court decides the
validity of the content of the statute through due process. Any type of analysis different from a
due process is therefore a form of constructive due process.

5.2.4 Due Process in India

The word 'due process of law' is not included in any Indian Constitution article. The correct
procedure should, therefore, be inferred collectively by Articles 14, 19, 20, 21 and 22. In this
regard, the judiciary has played a creative role. The 'law-established practice' in Article 21 was
perceived as equal to the 'due process of law.' Article 21 was in its draft form Article 15.
However, at a subsequent point, the Drafting Committee recommended that the term "except
pursuant to the rule laid down by statute" be substituted for the terms "without due process of
law. "The drafting Committee supported the change as the term due process provides room for
legal dominance. Their views were based on their experience in the US legal system.
Frankfurter, J., of the U.S. Supreme Court argued that the due process provision is undemocratic
and burdening the courts, as it has allowed judges to invalidate the constitutionally approved
laws. The Indian Supreme Court in A.K. Gopalan v. Union of India held that Article 21 is a
complete code; the law procedure must not conform to the principle of natural justice and
reasonability as laid down in Article 19. The Court rejected unanimously the use of the due
process under Article 21 which indicates that, until an individual has been detained under the
legal procedure, he cannot appeal his detention. However, the attitude of the judiciary gradually
shifted from the procedure laid down by law to due procedure. The 11 judges bench in the
Nationalization Bank Supreme Court overruled Goplan 's opinion and shared the conviction that
each fundamental right was not a full code but an interdependent one paving the foundations for
a due process provision in the Indian legal framework. The Parliament adopted the 24th and 25th
modifications to the Constitution with the purpose of annulling the Supreme Court ruling in
nationalization cases respectively. Furthermore, the Parliament amended Articles 13 and368 give
the Parliament unrestricted jurisdiction to modify, introduce, alter or repeal any Clause of the
Constitution that creates an all-powerful Parliament founded on the limitless sovereign principle
of Austin. The worst was the incorporation of Article 31-C into the Constitution, which enabled
Parliament to enact a law by merely declaring its application to the Principles of State Policy
Directive, which would prevent judicial review of that law. Such a law would not be challenged
because it violated fundamental rights. The Supreme Court clearly wrote that this House was
sovereign and could do what it wished. These amendments actually destroyed the power
separation and made the judicial review merely illusory and mythical. While 13 judges in
KesavanandaBharati's Bench of the Supreme Court endorsed these reforms, it set the doctrine of
the fundamental structure. The right of Parliament to change the Constitution is possible to some
degree and with restriction of not breaching their "simple framework." The principle of basic
structure that represents the importance, thus, of a substantive due process of law comparable to
the U.S. substantive due process of law, founded on the concept of natural law and justice
preserves the dignity of the Constitution.
While a principle of due process can be interpreted in India according to the simple
framework theory, the non-arbitrary theory under Article 14 and Article 21's condition of 'just,
equal and reasonable.' In the Indian law system, also Articles 19(2) to (6), 20 and 22 insulate the
substance of due process.

5.2.5 Procedural Prescriptions of Due Process

The fair procedure holds the government in subjection to land rule and defends people from the
administration. The due process is an order that the law is not to be unfair to the people. The
following components are regarded primarily as part of due process, both formal and
administrative in civil and criminal justice systems.
(A) Equal means of adjudicating the legal case and the judicial prosecution of the convicted shall
be an adversary procedure.
B) Appropriate notice of the allegations against the convicted.
(C) Independent or fair Trial or Jury Sits.
(D) The accused is presumed innocent before the court proves his guilt beyond reasonable doubt.
E) Jury Trial Droit.
F) The right to rapid and fair court.
(G) An opportunity for the judges or jurors to make oral arguments.
H) An ability to appear or give proof.
I) the opportunity to question the defendant and cross-examine him.
J) The right to compulsory evidence trials.
K) Right of disclosure of evidence before the court.
L) Right to transcribe the evidence into the accused's tongue.
M) The privilege to be served by an accused's preference of Solicitor.
N) It is not unfair not to refuse the unnecessary bail and penalty.
(O) No person shall be a complainant next to himself.
P) Privilege not to be repeatedly disciplined with the same crime.
q) Law ex posts facto. Crime law cumulative effect.
R) The Court's decision shall be followed by the arguments, i.e. the Code of Practice.
S) The opportunity to challenge a misjudgment.
The basic components of those privileges will be discussed in aspect.

5.3 Adversary Judicial System

This procedure depends on the competencies of each advocate representing the viewpoint of the
plaintiff and requires an unbiased individual to adjudicate the litigation matter. The system
practiced for the dispensation of criminal justice in India is the adversarial common law system
adopted from the British rulers. The Adversary Program has the following benefits.
(A) Well trained judicial officers and possessing expertise

(B) The matter shall be determined on the basis of the rules and procedures defined

C) The rules which the courts apply are clearly discernible and rational

(D) The qualified advocate shall represent the parties

(E) The concept of natural justice is found in the adjudication process

F) Tribunals have dignity, authority and public trust

5.3.1 Protection against Ex Post Facto Law

Protection from ex-post-facto legislation is a common law concept that has arisen from the due
process of law. Every ex-post-facto legislation applies fines retrospectively, that is, on crimes
previously done or which raises the punishment for previous acts.113 the international
community finds the enforcement of ex post-facto laws to be a human right.
Every ex-post-facto statute retrospectively applies fines, that is, for crimes previously
done or which raises the punishment for previous actions. The international community finds the
enforcement of ex-post-facto legislation to be a human right.
5.3.2 Protection against double jeopardy
Another significant feature of the due process of law is Nemo debut bisvexari's common law
theory nemodebetbisvexari pro una et eademcausa, implying that no one can be prosecuted twice for
the same offence. Gradually, the International Community has accepted that the concept is
essential in the legal framework for the safety of human beings. This principle is written in
Article 20(2) of the Indian Constitution, which prescribes that "no person shall be prosecuted and
punished more than once for the same offence."
5.3.3 Right against self-incrimination
Another exceptional characteristic of due justice is that the victim cannot be coerced or pressured
to testify toward himself. It is now central to the national and foreign legal systems124. It was
recognized in line with Article 20(3) of the Indian Constitution as a fundamental privilege. In
addition, Article 21 of the Constitution, Cr. P.C., the best promises. And Constitutional Indian
Act, 1872. Item 161(2) Cr. P.C. provides a witness the right to refuse to answer questions posed
to him by the police. Also, under Section 313(3) of the Cr, an accused person is not responsible.
P.C for refusing to reply or for giving the court a false reply. Paragraph 24 of the 1872 Indian
Evidence Act makes confession unacceptable if it is influenced by coercion, danger and
commitment.

5.3.4 Right to Fair Procedure

The idea of a jury prosecution is at the centre of the judicial and civil proceedings. It is further
regulated through regional and international regulatory legislation. The fair trial is a way to
defend citizens from unconstitutional and unreasonable restraint or deprivation of fundamental
rights and liberty, particularly the person's right to life and independence. The fair court is a
fairly long time. There are multiple, dynamic and continually evolving definitions of justice. Fair
court will not only be equal to the convicted but also equal to the defendant.
5.3.4.1 Right to know the Fact and Reason of Arrest
Fair prosecution shall allow the power to notify the victim of his arrest and arrest grounds.
Accordingly, Clause 22(1) allows the government to report the detention of the criminal and the
reasons for his imprisonment as early as possible. The world "as soon as possible" is to be
understood as early as possible and reasonable in this case. This causes uncertainty as to how
long the reason of detention will be reported to the accused. Article 9(2) (of the International
CovenantsonCiviland Political Rights (1966) requires the detained person to provide notice of
his detention at the moment of his arrest and to inform him immediately on the grounds of arrest.
5.3.4.2 Right to Fast Justice
Right to fast justice is right to a quick process, "Justice delayed is justice denied." The legal
practise that would not require an individual to get a jury trial is a violation of the human right
recognised under international law. Inexplicable difficulties in undertaking a trial of an
individual have the impact of lengthy imprisonment and the withdrawal, dismissal or death of
witnesses have an influence on the security of the individual.
5.3.4.3 Right to be represented by a Lawyer
The freedom of legal professionals to be served the judicial mechanism must be open. Therefore,
the fundamental concept of moral justice is not merely to do right but also to be served. The
theory of natural justice is not only directed at achieving fairness but also at avoiding inequality.
The audio team law ensures that, when he is understood, no one will be blamed. The law of a just
society is imperative that an individual against whom some recourse is taken should be given a
rational chance to defend himself. If it contains the opportunity to be considered by lawyers, the
privilege to be considered is not beneficial. An accused person has the freedom, according to
Article 22(1) of the Constitution, to meet and be supported by a lawyer of his own choosing.
Similarly, Cr. P.C. Portion 303. The convicted shall have a constitutional right to be represented
by a pleader of his choosing. Sections 21 and 22(1) of the Constitution allow for the freedom of
an accused citizen to meet the counsel privately.
5.3.4.4 Right to Legal Support
Equal jury ensures that the support of attorneys will be granted to a person pursuing relief from
the judge. The judicial process is complicated and cumbersome, requiring expert assistance and
the cross-examination of evidence; injustice is likely to occur otherwise.
5.3.4.5 Right to Bail
A basic aspect of the accusational framework is the right to bail, which usually ensures that the
person charged is not detained until the defendant is proven guilty. This is the Cr. P.C. The bail
has not been specified. Nonetheless, Black's Law Lexicon described bail as "protection for the
defense of the accused person who is released pending trial or examination."
5.3.4.6 Innocence Assumption
The basic principle behind the criminal justice system is that an individual is presumed innocent
unless proved guilty. It is a reject able inference to the innocent, founded on the strong logic that
most citizens are not offenders. This means 'prudence depends on him who believes, not on him
who refuses.' Furthermore, this principle is based on another Latin Principle Cum Latin Maxim El
incumbitprobatio qui dicit, non qui negat sit, which implies: 'Since by the design of things, someone
who rejects a reality cannot provide any proofs.'
5.3.4.7 Public and Fair Court
The legal mechanism will be open and clear. The execution of the jury court in public areas is
also an essential aspect of a free trial in democracy founded on the rule of law. The term 'free
trial' implies a trial to which the public is entitled. Observance of the legal procedure by common
man inevitably enhances Confidence or respect by persons for the judiciary and the
administration of justice. This also suggests that the judges behave impartially. Open justice
allows individuals and journalists to be available at the court, in fact, the journalists has the
opportunity to educate the public of the judiciary's trials, also the public is entitled to know the
identities of the judges and the jurors, the more public must have the right to review the records
created during the legal phase and the case will even be conducted at the press stage.
5.3.4.8 Right of Hearing
An integral part of a fair trial is Audi modifying the aspect of natural justice that has been
awarded. It gives an opportunity for an accused to be heard as a precedent for deterrence..
Nobody shall be disqualified, in other terms, until he is understood. The concept of
audialterampartem has been a fundamental right. Article 14 of the 1966 Universal Treaty on
Civil and Political Rights provides a free and public trial for those convicted. The method of
assessing an accuser‟s culpability without getting the right to be questioned does not meet the
substantive due process check.

5.3.4.9 Notice of Charges

The natural justice standard requires that an convicted defendant will provide a notification of his
mitigation until the start of a jury. Warning is a requirement for a reasonable jury. Furthermore,
the court warning should provide a complainant with an acceptable or fair time to plan his
appeal; otherwise a proper hearing notice would become a fallacy. An other significant
foundational characteristic of the notice is that the details in the language the offender knows
will be included in the notice.
5.3.4.10 Opportunity to Defend
Right to Justify Due Procedure commends that he should be given the opportunity to explain
himself before being blamed by the convicted. The accused will certainly practice this privilege
by his lawyer. There are still no established rules or forms of listening, since listening is a
relative concept dependent on the facts in each case. Accordingly, listening forms can be oral or
written and personal or by the defender.226 Cr. Section 303. P.C. This protects the right of any
citizen brought before criminal courts to respond to any complaint or claim by the lawyer of his
choice.
5.3.4.11 Evidence in the Presence of the Accused
The operation of the prosecution and the evidence before the accused will definitely guarantee
the fairness and impartiality of the prosecution. This will also help the victim to grasp the case
better and ready himself to defend himself
5.4 Delay in the Justice Delivery System
Laws‟ delays, no doubt have become the chronic disease and it could not be cured, even till
today and has become an unceasing, unaffected and insolvable problem. The fault lies with all
the stakeholders of the Justice Delivery System i.e. Legislators, Executive, Judiciary, Lawyers
and the Public (accused, victims and witnesses). The general public and even the administrators
throw the blame on the judiciary alone, which is not correct on the face of it. All the organs of
the Justice Delivery System are to be blamed as they are all responsible to some extent or the
other and each of them knowingly or unknowingly are contributing their respective share in the
delays, which ultimately, is resulting in the general saying, “Justice delayed is justice denied”.
No single instrument can be blamed for such problem of delay because a problem of such
magnitude arises due to malfunctioning, mal-administration and mismanagement of different
elements of the Justice Delivery System. Corruption and lack of commitment on the part of
various instruments are the significant reasons accountable for the delay in the Justice Delivery
System.
Man generally has an uncanny obsession for dreams, especially for Indians. Many who
fought for the freedom of our country dreamt that autonomy would provide the just, fair,
effective and responsive governance system. Sadly, there really aren't alive to see the
culmination of their visions, India which has become identifiable as a nation in which faith,
community and politics hit their pinnacle. It is now renowned for its short-sights, sloth,
populism, corruption, indolence and deprivation and non - observance.
'Corruption' means perversion from the point of view of honor, right or justice, morality,
integrity, personality or duty, by mercenary motives. Rather than including moral and intellectual
disintegration, we can constrain ourselves to economic disintegration. Corruption is defined by
the World Bank as the abuse of public services for private benefit. Corruption today is a deadly
illness that degenerates and eats into national and economic life. It is a financial behavior that is
uncontrolled and involves economic rape and adultery.
Financial rape is when a citizen goes to any public office and the public servant misuses
his power to extract bribe from him. It can be illustrated as that in “Sanskrit those who are
knowledgeable are called Saksharas and if they don‟t use the knowledge properly they become
reverse of Saksharas, which is Rakshasas. „Saksharovipareetatverakshcirobhavaticlk.ruvam'. In
fact today we are having, in India, a Rakshasaso Raj where the public servants exploit the
citizens. The second type of uncontrolled, financial behavior whichleads to the AIDS of
Corruption is financial adultery which takes place when the colluding businessmen or political
leaders or bureaucrats accept bribes and exploit the system. To this menace of corruption, no
sphere of public life can claim to be an exception.
For a number of years the Judiciary has enjoyed a well-deserved reputation for honesty
and integrity. In the past, even the most extreme opponents of the judicial system who find fault
with the tardiness of the legal proceedings, the expenses involved and the confusion that strongly
weighed on the litigant, except in extremely unusual instances, did not suspect the judge of
corruption. But in recent times this monster is rearing its ugly head in the judicial branch also.
The causes are not far to see. The emoluments of the judge and the amenities enjoyed by the
judge compare unfavorably with the executive officer of the same status.
The disease of corruption is extremely infectious and a judicial officer succumbs to it
when he sees it prevalent all round him. Further the category of cases, which are more frequent
nowadays like land acquisition matters, bails etc. having large field of judicial discretion of
judges. Even an honest judge is corrupted especially when there are unscrupulous lawyers who
are willing to dangle tempting baits before him. Corruption may assume many forms other than
monetary corruption sometimes subtle, sometimes sophisticated-nepotism, favoritism,
communal, caste, or religious bias.
The Parliament has been given the role of the making of laws because it is the will of the
people which is to prevail. But our legislature has been lagging far behind in feeling the pulse of
the needs of the people. They keep on discussing unnecessary or less important matters. Many a
times the opposition stages the walkout on one issue or the other. Inapt and vague drafting, old
and antiquated laws etc. ultimately results into laws‟ delays.
The Executive is also equally responsible for the laws‟ delays by taking most reckless,
dishonest, hasty and injudicious actions and by passing arbitrary, capricious and illegal orders,
creating discriminations, by changing its policies unnecessarily and more frequently. This
attitude of the Executive results in much litigation and ultimately results into unwanted
congestion in Courts. Moreover Government is the biggest litigants. Further the non co-operative
attitude of the executive also adds to the. Problem of delays.
The Prosecution agencies in major cases like BMW case, PriyaDarshniMatto case,
Hawala Case etc. are the examples where public prosecutors are acting as the handmaid of elite
by protecting their interest, the public prosecutors are denying justice to the masses thus causing
delay. Justice Reddy, the Chairman of Law Commission has 17 rightly remarked:
“The Criminal Justice System in the county
is in a bad state of affairs and this is because
of incompetence and corruption in prosecution agencies”.
He further adds: Blaming the Courts and judges for low
conviction rate would be misleading, if a case is devoid
of evidences they could not do much”.
The justice in Indian Courts has become a myth. 18The Lawyers also are responsible for
laws‟ delays. A very few lawyers have the courage and broad-mindedness to nip the litigation in
the bud by advising his client that there is no case for him. Thoughthere is no case for a client, no
Advocate generally, will advise a client to stop going to the Court and at one stage or the other
the Advocate will try to postpone the evil day of his client by prolonging the litigation by
dilatory means and methods. The litigant public (accused, victims and the witnesses) is also
responsible in contributing their share to a major part, for the laws „delays.
The litigant public is adopting all types of dilatory tactics. The lackasadical approach of
investigation agencies, unscrupulous lawyers, sleeping judiciary and redundant legislation‟s
which have rotten our criminal justice system. The whole system including the policemen, the
advocates, the defense, the trial and the appellate Courts, the prison and the correctional
administration has become a web of inefficiency, corruption and bureaucratic hurdles, therefore
whole system is responsible for delays.19 So we can say that each element of Justice Delivery
System is responsible in one way or the other for denying the people of this country the quest of
Preamblei.e. justice.
According to a study as shown in table 5.1 conducted by Ravi Karan Singh, 20 the big
groups of advocate, judge and law teacher respondents i.e. 24.97, 27 and 23 per cent respectively
support that there is a heavy work load in all Courts and posts of judges are lying vacant since
long and this is one of the vital reason for not dispensing of justice as reflected in the table
below. The other professional and litigant respondents in a big way i.e. 30.46 and 32.18 per cent,
blamed that corruption is spreading in our judicial system. Although all the groups of respondent
also support that dilatory practice, lawyers‟ strike and commercialization of legal profession
have adverse effects of dispensation of justice or multiplying the cost of justice. It is not an
exaggeration to say that now justice has become unreachable from a common man.

5.4.1 The Main Causes of Delay

5.4.1.1 At Legislative level

The first most important function in a democratic setup is making of the laws. In India, this
function lies with the legislators. But most of our legislators are either illiterate or are unable to
understand the real nature of law. The gradual criminalization of politics has further deteriorated
the situation because a large number of criminal elements have entered into politics. Our
„democracy‟ has become „mobocracy‟ because here the majority rule prevails without any
distinction between the citizens on the basis of their qualification and understanding.
Consequently, the candidates contesting the elections use all means for winning elections like
booth-capturing, purchase of votes and other violent activities etc. This leads us to one
conclusion that our legislators may not have pure conscience, sacred wisdom and true
commitment towards the constitutional and humanistic goals of justice.
(i) Vague, Ambiguous and Poor Drafting of Statutes
Many a times, our law making body does not make laws. The rights of the people continue to be
violated. The laws are ineptly, inadequately, carelessly drafted. All this breeds litigation. In
inerva?Mills Limited v. Union of India," Mr. Justice P.N. Bhagwati has rightly and aptly
observed: “This slovenliness” in drafting is becoming rather common these days”. Legislation
not only in this way but also in many other ways is contributing their share in laws‟ delay.
The drafting of legislation has now become a particular type of art which has to be learnt
and mastered and only properly qualified and experienced men should be placed in charge of
such drafting works. Because of poor drafting of various statutes, Court had to struck down
many of these statutes on the ground that these are repugnant to the provision of the Constitution
in some cases because of vagueness or ambiguity of the language it becomes very difficult for
the Court to interpret the law and to make out the real intention of the legislature. Consequently
such litigation continues and ultimately causes delays.

(ii) Outdated Laws

The old laws are not amended so as to keep them meaningful in the realm of the present time.
They lose their spirit and the ultimate objective. Even today our penal code contains the
provisions of imposition of fines of Rs. 10 or the like meagre amount for the violation of some of
the offences. This is a mockery of the present justice delivery system that nobody can be
expected or thought to have been deterred by such old laws. The principles of law that we have
today, were laid down by the judges, in the 19lh century or even earlier than that. They, of
course, suited the social conditions of that time. But they are not relevant at present. Therefore
those laws are out-dated and need to be recodifies and restructured to suit the distinct social
needs of our times. Lord Denning has said:“Times after times I have suggested that present law
is mistaken and in the need of reform. It should be altered so as to secure as near as may be the
doing of justice”.

5.4.1.2 At Judicial level

The justice structure that we have in India today is a product of British law and an antagonist.
"The guilt or innocence of the accused is found by an opponents' system of 11." Long delays at
the Trial create considerable difficulties not only to the accused but also to the claimant and to
the state and community in general. The defendant who is not under bail may languish in prison
for months or even years waiting for a trial. "The three main events common to the judicial
system in India are cost, delay and confusion and the most horrific of these are delays. The
common man hesitates to go to the courts of law in fear of long delays.
This pause issue is more severe in the lower Trial. In the administration of justice. "The
analysis of figures reveals the cumulative amount of lawsuits brought up each year by lower
courts and the rulings expose the problem, i.e., delays."2' the number of cases introduced has
increased considerably and the trial courts have become exposed to severe strain. The challenges
confronting the Court thus allow a judge to have excellent attributes of heart and mind.
The role of the judicial branch generally can be aptly expressed as follows: "In a country
that declares, its reliance on the assertion that all men are equal and that the judiciary must
It is only fair to require a judicial system to provide both rule and justice to help, establish
and provide equal treatment of laws. A system that establishes protocols to protect the innocent
and to discover and initiate appropriate guilty actions, and that offers "due proceedings" to all
litigants. It is the Court's responsibility to oversee the work of the prosecutor and defense counsel
to ensure the presence and release of the due process throughout the arrest process.
Criminal justice.-17 so the fair obligation of citizens is to have equal opportunity to talk
and an arbitrator will determine the matter within an equal period if they pose a case until in the
adjudicatory process.
-' NainiPalkhiwala observed:----

“An independent judiciary is the very heart

of a republic, the foundation of a democracy,
the source of its perennial vitality, the
condition for its growth and the hope for its
welfare- all this lie in the great institution of
19 independent judiciary”.

When the question as to the fixing up of the responsibility of the institution/person for
such dismal performance of this delayed justice comes, apart from various other elements at
different levels, the most unfortunate fact that comes out that none else is more responsible than
the judiciary itself for the reasons:
(i) They pass the orders without considering and visualizing the ultimate result that if their
orders are not implemented, will they be able to get them implemented by passing strictures or
ordering them to suffer the monetary loss, which is rarely done by our justice delivery system;
(ii) Each time the executive does not implement orders, they are not dealt with strict
action.
(iii) They take dates after dates for one reason or the other because they know very well that
at the most they would be ordered to do a particular act, which they will have to do if ordered.
Therefore their tendency is to delay the matter as long as they can; However some of the reasons
are as follows:

5.4.1.3 Huge backlog of pending cases

The inadequacy of the resilience of the subordinate judicial to deal with the repayments and the
rise in the amount of new cases contributes to the accumulation of the cases. It gives the litigant
public a feelings of anger and powerlessness which is not prevented in due time by the Court
because of itself. The growth rate of the population raises the case institution but the disposal
rate will not shift from its 30th growth level. A analysis found that when the country's population
rose by 127.6% from 1951-90, the cumulative crimes registered underneath the Indian Penal
Code increased by 146.9%. The assumption that penal law has ceased to dissuade offenders
because of the lengthy gaps in the processing of prosecutions, compared to the declining
prosecution rate in all proceedings in which the victim is convicted on criminal charges, is not
disputed. The enormous pendulum in national courts is the greatest challenge. The problem of
arrears in the higher judiciary is caused by a very wide range of appeals in civil and criminal
matters and the written jurisdiction granted by Articles 32 and 226 exacerbates the problems
further. Experience in the past five decades showed that the Court could not cope with such a
large workload.

5.4.1.4 Poor Judge - Population Ratio

India has the lowest judge population ratio of the world in the past 50 years, the population and
cases have risen several times, but the judge does not raise proportionately Legal capacity and
power. The Commission observed in 120th survey that India had 10.5 judges per million
inhabitants, with the equivalent number in England being 50.9, Australia.57.7 and the United
States 107. Instead of just 10.5 the Law Commission had proposed 50 judges per million
residents. Dr. Justice Anand, warn that the need for today is not only to increase the power of
judges in subordinate courts, but to increase their ability. Making right appointments because a
vacancy cannot cause "so much harm as a vacancy wrongly filled." The Supreme Court in the
All India Judges Association also discussed briefly the anxiety of everyone involved in the rapid
discharge of justice.

(i) Large scale Unfilled Vacancies in Courts

In the local courts, the number of judges / magistrates is about 13,000, around 2000 places are
empty and yet to be filled. The main cause of delay in high courts is, according to the Chief
Justice of India, "large vacancies, the total force of the Supreme Court judges is 26, of which 25
have been established. The number of the judges in the country's 21 High Court is 719, of which
228 remain to be served.

Although some 200 High Court Judges were established, they still have to be filled. The main
reason for these vacancies is the absence of recommendations and matters pending with the
government. There are long-standing vacancies of Court staff and judges not filled due to
financial crunch or prohibition of appointments. The courts have limited workers and that is
crowded as well. Because of such unfulfilled vacancies, subordinate courts act like lame
ducks.35 at the behest of the central or state governments, the special judges are often selected
without any raise in the number of judges and without any adequate infrastructures for delivering
speedier justice. 36 The delay in the appointment of judges is now rule and an exception to this is
timely appointment. 37 'The judges' not being named on schedule and ever more arrears
complete the destructive cycle of delays.'

(ii) Defective System of Appointment and Training of Judges

The appointment process for judges is often quite faulty. Persons with merit and judicial capacity
have not always been appointed in accordance with the 14th report of the Law Commission.
Delays in the disposal and recovery of arrear at trials are largely the product of the Supreme
Court themselves, the nation needs properly qualified and competent judicial officers to execute
and prescribe the law and also needs a complete rain for a minimum duration of one year39.
Training is provided from seven days to one month that is not appropriate and successful. Given
that the judge will, among other items, address problems of existence, independence, properties,
and the integrity of the litigants from the first day of his appointment, in order to guide the
students, with little experience, to hold these crucial positions, it is neither advisable nor
attractive.

5.4.1.5 Same Court for Civil and Criminal Cases

Generally, the similar judicial executive keep fit powers over both civil cases and criminal cases
and they give preference to criminal cases because in these cases, life and liberty of the persons
is directly at stake. So much of their time is consumed in hearing bail applications and recording
of evidence of witnesses in criminal cases and very few hours are available for civil cases which
keep on lingering for decades.

5.4.2 Delay in Justice Relating to Judgment

 One of the the largest part significant reasons for delay in justice by the Courts is relating to
judgements. The causes are as follows:

1. Most of the times numerous lengthy judgments on different points raised in a case.
Even there are conflicting judgments supporting the case of both the parties.

2. Many a times the judgements are time and again overruled. This also leads to confusion.

3. The quality of the judgements also suffers immensely for the judges are in a hurry because of
heavy workload.

4. It has also been observed that many a times the judgments are not delivered even after the
conclusion of arguments.

5.4.2.1 Procedural Constraints in Courts

A large number of cases are fixed on a day when it is unlikely to be heard and the Courts spend
30 to 40% of its time calling certain cases in order to postpone their hearing to a future point.
The time spent for this purpose cannot be considered constructively to have been used. The
litigants must spend considerable time obtaining copies of documents. The process for acquiring
validated versions of the records must be streamlined. Through the aid of other people fleece 12
litigants, litigators would be able to procure documentation. The preparing of copies of records
and statements to be sent to the complainant is also another cause for pause. The explanations for
the pause in transmitting the copy to the accused could be:

a) Personnel shortages processing these versions.

b) Large accumulation of cases can result in delays since it requires a great deal of time to
schedule it.
c) Pause in receiving police investigation diaries.
d) A large case diary with long statements 161 Code of Criminal Law and other papers.
 e) The silence, deliberately or inadvertently, of the accusedthe copy shall be provided on him on the
day.

5.4.3 Deplorable working conditions

It is pity that the people who are expected to administer justice are housed in shabby and
dilapidated Courtrooms. A visit to any lower Court will demonstrate how unhealthy and
appalling conditions are there in the Courts. Ants, flies, broken chairs and tables, torn and soiled
table cloth, ceaseless noise and complete lack of order characterize the courtrooms. We can see
the judges in the subordinate judiciary working in candle light in the day time when the
electricity is out of order and there room does not receive adequate sun light.
During the rainy season some of the courtrooms look like island in the water. Sometimes,
even the courtrooms are filled with water and the judges have to close their work. Huge rush like
fish market can be seen in as well as outside the courtrooms. The high obsession with the
Supreme Courts and the High Courses resulted in almost total neglect by the Subordinate
Courses, which are a real face of justice for ordinary human beings. "The employment conditions
in the appellate jurisdiction are simply atrocious and it is a wonder that they continue to exercise
justice.
The police are mentally and ethically bound to do their best to check wrongdoing and to explore
cases effectively to live up to individuals' desires. The examination is the establishment of the
criminal equity framework. The police are the primary office to give criminal equity and the
principal line of guard against wrongdoing.

5.4.3.1 Non-co-operative public-wide mentality

1. Logistical and forensic support inadequate.

2. Insufficiency of qualified forensic personnel.
3. Insufficient state-of-the-art training facilities.
4. Missing coordination with other sub-systems of Crime reduction public justice framework and
Control and truth search.
5. Statute and Trial mistrust (Sections 161 and 162).(Cr PC).
6. The failure of legislation that tackles new forms of violence such as organized crime effectively
Crimes, washing capital, etc.
7. The accused's abuse of protection and anticipatory detention conditions
8. Guide the police to certain activities that are not part of the work of the police.
9. Interruption of investigative work through withdrawal of legal and order duties in the middle
Inquiry. Inquiry.
10. Intervention by the legislative and administrative bodies.
11. Current preventive law in curbing violent behavior is absolutely unsuccessful criminals and
recurrent hardened.

5.4.3.2 Prosecution Related

The proper organization of integrity is not in the hands of bench alone. It also depends upon the
character of the personnel of the Prosecuting Agencies. The reforms in criminal justice system
cannot be attained without improvement in the role of the prosecuting agencies. Earlier the
Public prosecutors (Prosecuting agencies) were conscious of maintaining justice in the society,
laws were successful and their interest in maintaining justice paved the way for early disposal of
cases, conviction of criminals, prevention of crimes and reformation of offenders. But today,
these agencies are sheltering criminals on the basis of caste, religion, political affinity etc. There
is growing apprehension that justice may not only be delayed but even denied a number of factor
are responsible for this phenomenon.600 The quality of the public prosecution suffers on two
counts:

1. Inadequate number of public prosecutors directly affects the trial of the cases e.g. only about
15 Public Prosecutors and 45 Assistant Public Prosecutors are handling nearly 78.000 criminal
cases pending in the lower Courts situated in Jaipur City.6 At present, there are around 100 posts
of government counsels are lying vacant at the district level.

2. The problem is not only of non-appointment of government advocates and public prosecutors
promptly, properly and in requisite number but that the appointments are often made on
considerations other than merit.62 Political proximity and patronage etc. play the most important
role. Consequently the judicial system and the people at large suffer.
Counsels because of poor performance, due to absence of accountability and non-sincerity to
assist the Courts. A number of respondents stressed that there is no effective co-ordination
between litigant department and other government agencies particularly in the case of criminal
matters. The police, government hospital, and other related institutions because a lot of delay and
malpractices to prepare reports, documents etc.
It is clear from the data that the government does not make appointments strictly on merit
or expertise basis. These defects and deficiencies in the prosecution cause many problems
including delay and denial of the right to justice in the Justice Delivery System.

5.4.3.3 Public Related

In a trial, apart from the instrumentalities of the state and the Court, there are other players who
are also involved in most of the cases i.e. accused or the plaintiff, witnesses, litigants in any
capacity. It is often said that one of the party is always interested in delay so as to deny or defy
and dilute the claim of the other party. This is not far away from the truth.