Fair
and speedy trial under the Constitution
Md
Nur Islam
The notion of "fair and speedy" trial is a constitutional
obligation. These two terms have greatly been emphasised by our Constitution,
the supreme law of the land. If the court of law, tribunal and the sitting
of justice are not fair, impartial and independent, then the whole process
in relation to administration of justice becomes a mockery, farce and
a means of infliction of injustice through the means of justice. Simultaneously,
if the trial system is not speedy as required and expected to expeditious
delivery of justice then it also leave the justice seeking people backward
and easily oppressed. In all fairness, the judges should be of judi-caring
mind by applying the strong sense of judiciality while administering
justice, something which goes beyond the domain of law must be avoided.
Components
of fair trial
Components which can be enumerated in respect of fair trial are as follows:
The trial system must be free, impartial and independent, It should
be open and public; the parties must be subject to the same kind of
law; The right to self defence has to be ensured; No enactment of law
after commission of crime i.e. no ex-post-facto legislation.
Generally, every
court of justice is to remain open to all citizens as publicity is the
authentic hall-mark of judicial process as distinct from administrative
procedure. Article 35 (3) of the Constitution stresses 'public trial'
by an independent and impartial court or tribunal. The essence of the
same is to provide a fair trial. Section 352 of the Criminal Procedure
Code (CrPC) provides for public trial. In fact, section 352 of the CrPC
confers a discretion on the court to restrict admission or hold the
trial in the jail premises if the necessity arises.
In the American
jurisdiction, an accused has the right guaranteed by the sixth amendment
to remain present at the trial (Faretta vs Californica, 422 US 806).
The requirement of public hearing in a court of law for a fair trial
is, however, subject to the need of the proceeding being held in camera
to the extent necessary in the public interest and to avoid prejudice
to the accused. In our country, the Family Courts Ordinance, 1985 provides
for provision of camera trial in respect of some matters. In a case,
where reasonable apprehension of bias of the trial judge or magistrate
arises, the provision of transfer of cases has been incorporated into
the Cr. P.C. just to make the trial fair.
Speedy
trial
Though an accused is guaranteed a speedy trial, it is difficult to set
down the notion for time limit for trial in all cases. Delay in our
country is systematic and profound. Expeditious trial and freedom from
detention are part of human rights and basic freedom and a judicial
system which allows incarceration of individuals for long periods without
trial must be held to be denying human rights to such under trials prisoners.
In respect of speedy
trial in A. R Antulay VRS Nayak, the Indian Supreme Court laid down
some propositions considering a large number of decisions:
Right to speedy trial is the right of accused. The fact that speedy
trial is also in the public interest does not make it any-the less the
right of the accused; the right encompasses all the stages, namely,
the stage of investigation, inquiry, trial, appeal, revision and retrial;
the accused should not be subjected to unnecessary or unduly long incarceration
prior to his conviction. The worry, anxiety, expense and disturbance
to his vocation and peace resulting from an unduly prolonged investigation
and inquiry or trial should be minimal; Often the accused is interested
in delaying the proceedings.
Therefore, when
a complaint of violation of the right to speedy trial is made, the first
thing to be asked is who is responsible for the delay; while determining
whether undue delay has occurred resulting in violation of the right
to speedy trial regard must be had to all the attendant circumstance,
including the nature of the offence, number of accused and witnesses,
the work load of the court concerned, prevailing local conditions and
so on; Inordinate delay may be taken as a proof of prejudice.
In this context
the fact of incarceration of the accused will be a relevant fact; An
accused's plea of denial of the right to speedy trial can not be defeated
by saying that he did not at any time demand a speedy trial; It is neither
advisable nor practicable to fix any time-limit for trial of offences
and it is for the court to balance and weigh the several factors to
determine in each case whether the right to speedy trial has been denied;
Once the right to speedy trial is found to have been infringed, generally
the charge or the conviction shall be quashed. In such a case, it is
open to the court to make such other appropriate order as may be deemed
just and equitable in the circumstances of the case.
Recent
developments
A slow-moving justice system cannot be an effective tool in the fight
against crime. In this respect, a good number of speedy trial courts
throughout the country have been set up to combat the prevailing situation
and the idea of setting up the courts like speedy trial courts can be
said to have been based on a correct assessment of our ground reality.
In the meantime this type of court has gained a tremendous success with
disposal of highly sensational cases. The pattern of speedy trail and
deterrent punishment needs to be taken forward.
Concluding
remarks
The prime objective of the judiciary/judicial institution is to ensure
fair and speedy trial within shortest possible time so that the justice
seeking people can get justice expeditiously. The judicial process must
posses the genius to do social justice and the judiciary can not be
oblivious of this constitutional norm. No man hopes to succeed in a
bad cause unless he has reason to believe that it would be determined
according to bad laws or by bad judges. Only just decision can prevent
unjust cause and restore people's confidence in the justice delivery
system. But the norms of fair and speedy trial are the condition precedents.
Md
Nur Islam is Assistant Judge, Rajshahi.
