Reviewing the views
Delay in dispensation of justice
Tapos Kumar Das
DELAY in dispensation of justice is always a concern as right to speedy trial is rampantly discarded by it. The right to speedy trial is not a fact or fiction but a constitutional reality and it has to be given its due respect by removing the obstacles from its vicinity. This right has already been greeted by the courts and the legislature as a weapon to plummet the caseloads. A trial is delayed whenever it takes more time than necessarily required by the law, considering all procedural, constitutional and other rights of the parties concerned. Surprisingly, courts in Bangladesh are not entranced by the time frame in settling the dispute with some exceptions.
Causes of delay
In Bangladesh both in subordinate and higher courts irrespective of civil, criminal or constitutional issues dispensation of justice is always prolonged, with parties are compelled to spend an unlimited amount of money for indefinite time and to run from one place to another in pursuing their claims in court. Infirmities in the judicial governance and administration, weaknesses in the legal education, enfeebled legal profession, incompetent investigation and prosecution, lack of citizens' access to justice and legal information and inadequate resource allocation are the major factors causing delay in justice delivery system. The points may succinctly be described as thus:
The lawyers: The Canons of Professional Conduct and Etiquette entails the advocates to aid the court in the accomplishment of efficient and prompt justice. They must decline to conduct a civil case or to make a defence when convinced that it is intended merely to harass or to injure the opposite party or to work any oppression or wrong. Shockingly, instances are not infrequent, where these noble rules are ignored by the learned lawyers in many excuses.
Litigants: As litigation is a confrontation between contending parties, progress of it depends on the will of the parties. In our society filing of a civil or criminal case is regarded as a weapon of harassment, which makes a considerable number of litigants enthusiastic to file allegations that are neither sustainable nor factual but merely intended to harass opponents socially or politically or economically. In such instances, cases that ought not to go to the courts are pushed there and remain pending for years to increase backlog of cases.
Case management: Absence of active case management by the judicial officers is a main factor contributing to the backlog of cases. Judicial officers must be educated and well trained on effective case management. Case management and court administration is a course which is taught in different countries of the world which seems to be unaddressed in our legal curricula.
Lack of facilities: Judicial function is such a sophisticated responsibility that it requires wholehearted devotion and concentration in ensuring justice. Judge's reluctance of a moment can cause a catastrophe on litigating people. This is because, they still suffer from proper sense of security in terms of facilities provided with them.
Inadequate infrastructure: There are inadequate court buildings compelling judicial officers in many jurisdictions in rationing courtroom and chamber; libraries are virtually non-existent. This lack of indispensable need not only swipe away potential of judicial officers but also led to frustration for those who have obliged to serve judiciary. Use of courtrooms in shift and want of chambers are hampering smooth functioning and creating backlog of cases.
Court staff: Corruption and inefficiency of the administrative and support staff of the judiciary are crucial in delay. Bribery in service of summons, in giving certified copies, finding case records, transferring cases from one court to another, in maintaining cause list contributes in delay. Stenographers and records keepers are not well trained, not equipped with modern technology which also prevents expeditious trial.
Alternative Dispute Resolution: Section 89A of the Code of Civil Procedure has entrusted the judges with the obligation to facilitate the settlement of dispute by way of mediation (except a suit under the Artha Rin Adalat Ain, 1990). Taking advantage of this provision lawyers very often pursue the judges to permit ADR in the same suit in more than one occasion without any success. Thus, ADR, which was meant to expedite the settlement of dispute, undesirably, has turned into a weapon of delaying tactics.
Delay by investigative agencies: In trial of cognisable offences the incident need to be investigated by the police agencies. On completion of the investigation the precise formulation of specific accusation against the accused should be placed before the court in the form of Charge Sheet. A criminal case is not ready for trial till the Charge Sheet is submitted and submission of Charge Sheet is very often delayed because of work load of the investigating agencies or due to the pressure, undue influence or bribery by the interested party. Time required for getting expert opinion or collection of corroborating materials also delay the trial.
Law reform: In 2003, Code of Civil Procedure was reformed and provisions for cost on adjournment, amendment of pleadings, restoration of suit, for untrue statement and so on had created an atmosphere for speedy disposal. What is now required is the strict compliance of those provisions by the judges by way of active case management. New law is required to introduce time frame for disposal.
Strength of judiciary is not enough: The ratio of judicial officer is utterly negligible in comparison with the population of the country. At present Appellate Division is chaired by the Chief Justice and six (6) other judges and High Court Division is run by eighty nine (89) Judges (2 Judges are awaiting for oath). Nearly 1200 judicial officers are on duty in subordinate courts (both civil & criminal). In total approximately thirteen hundred (1300) judges and magistrates are entrusted with the responsibility to dispense justice among 150 million people. On an average one (1) judicial officer for more than one lac (1,15,000) people. This ratio is so disproportionate to enable the judicial officers to keep pace with the number of fresh filing of litigation in each day.
How to overcome?
There are numerous reasons for the prolonged trial, which in fact could be eliminated by conscious efforts. Measures recommended by the Asian Legal Resource Centre and others to mitigate delay are as follows:
* Take immediate steps to fill existing vacancies at various levels in the judiciary and number of courts and judicial officers need to be increased significantly.
* Immediate adequate funding to ensure available infrastructure and other facilities.
* Make use of available international expertise and advice to improve judiciary's communication infrastructure.
* Establish a process of accountability so that the aggrieved party suffering from delay of process could challenge the delay without fear of judicial wrath.
* Provide adequate training and education to members of the judiciary so as to facilitate a respect for the rights and dignity of all individuals, as well as for the rule of law, in discharging their judicial functions.
* Emphasis should be given on active case management and absolute devotion on judicial function by judicial officers.
* The civil and criminal procedure codes and the laws of evidence have to be substantially revised to meet the requirements of modern judicial administration.
Justice delayed is justice denied
Justice should not only be done but should also manifestly and abundantly be seen to be done. Essence of the rule of law is not only justice, but the justice within a reasonable time. Due to massive pendency, the cases take years after years for its finality, which should have been disposed within few months. The pendency causes delay and delay negates access to justice. The magnitude of delay in dispensation of justice cannot be under estimated as it has impact on the resources of the court and socio-economic factors of the litigants. In the case of Anil Rai v. State of Bihar [2002 (3) BCR (SC) ] Justice Sethi of Indian Supreme Court rightly stated that 'delay in disposal of the cases facilitates the people to raise eyebrows, sometime genuinely, which if not checked, may shake the confidence of the people in this judicial system'. There must be untiring efforts by all concern not to prolong the disposal unnecessarily.
The writer is Lecturer of Law, University of Rajshahi.