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Unreasonable Delay Between Hearing Of Arguments And Delivery Of Judgment Represents Denial Of Justice; Supreme Court

As it is, pending litigation has been a pandemic too. Nani Palkhivala once said,
"Law may or may not be an ass; but in India it is a snail - it moves at a pace which would be regarded as unduly slow in a community of snails."

In our adversarial system in preference to the inquisitorial system arguments by counsel have a key role to play in discovery of truth. The Bar, the professional instrument of presentation of cases, is indispensable in the forensic process. As Brandeis observed; 'For a Judge rarely performs his functions adequately unless the case before him/her is adequately presented.' The great Holmes put it neatly; 'Shall I ask what a Court would be unaided? The law is made by the Bar, even more than by the Bench.'

It is clear that the best Judgment is the product of the finest submissions at the Bar. In this sense the lawyer is an officer of the Court and is an integral to the administration of Justice. A good Bar is a great [art in justicing and, therefore, must be given a high place in the fulfilment of the right to Justice which is fundamental to all fundamental rights. The Bench without the Bar is as bankrupt in the delivery of Justice as the Bar without an intelligent, impartial and independent Bench to hear and decide. The right to Justice is inherent in every citizen; even the devil has that right.

When arguments are concluded and the Judgment Reserved is delayed, the litigant's expectations darken into depression. Then that depression turns into dreaded, dread transforms itself into despair and despair evolves into explosive frustration. Judicial discipline requires promptness in delivery of Judgments - an aspect repeatedly emphasized by this Court.

If delay in pronouncing Judgments occur on the part of the Judges of the Subordinate Judiciary, the whip of the High Court studded with supervisory and administrative authority could be used and it had been used quite often to chide them and sometimes to take action against the erring Judicial Officers. But what happens when the High Court Judges do not pronounce Judgments after lapse of several months since completion of arguments?

The Constitution of India did not provide anything in that area presumably because the architects of the Constitution believed that no High Court Judge would cause such long and distressing delays. Such expectation of the makers of the Constitution of India remained unsullied during the early period of the post Constitution years.

But unfortunately, the later years have shown slackness on the part of a few Judges of the Superior Courts in India with the result that once arguments in a lis concluded before them, the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the Judges forget even the fact that such a case is pending with them expecting Judicial verdict. Though it is an unpleasant fact, it is a stark reality.

The Hon'ble Supreme Court of India made an exhortation in 1976 through a Judgment which is reported as ["R. C. Sharma Vs Union of India & Ors.", 1976 (3) SCC 574], for expediting delivery of Judgments, expressing concern as follows:
"Nevertheless an unreasonable delay between hearing of arguments and delivery of Judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of Judgments."

In 1961, Hon'ble Judge of the Patna High Court expressed his anguish when a Magistrate took nine months to pronounce a Judgment. The words used by him for expressing his Judicial wrath is the following:
"The Magistrate who cannot find time to write Judgment within reasonable time after hearing arguments ought not do any Judicial work at all. This Court strongly disapproves the Magistrates making such a tremendous delay in the delivery of his Judgments."

As has been held time and again that Justice should not only be done but should also appear to have been done. Similarly, whereas, Justice delayed is Justice denied, Justice withheld is even worst than that. Hon'ble Supreme Court in ["Madhav Hayawadanrao Hoskot Vs State of Maharashtra", 1978 (3) SCC 544], observed that procedure contemplated under Article 21 of the Constitution of India means "fair and reasonable procedure" which comports with civilised norms like Natural Justice rooted firm in community consciousness-not primitive processual barbarity nor legislated normative mockery.

Right of appeal in a criminal case culminating in conviction was held to be the basis of the civilised jurisprudence. Conferment of right of appeal to meet the requirement of Article 21 of the Constitution cannot be made a fraught by protracting the pronouncement of Judgment for reasons which are not attributable either to the litigant or to the State or to the legal profession. Delay in disposal of an appeal on account of inadequate number of Judges, insufficiency of infrastructure, strike of lawyers and the circumstances attributable to the State is understandable but once the entire process of participation in Justice Delivery System is over and only thing to be done is the pronouncement of Judgment, no excuse can be found to further delay for adjudication of the rights of the parties, particularly when it affects any of their rights conferred Part-III of Constitution of India.

In ["Bhagwan Das Fateh Chand Daswani & Ors. Vs H. P. A. International & Ors.", 2000 (2) SCC 13], the Hon'ble Supreme Court observed that "a long delay in delivering the Judgment gives rise to unnecessary speculation in the minds of parties to case". The Court in various cases including ["Hussainara Khatoon Vs. Home Secretary, State of Bihar", 1980 (1) SCC 81]; ["Hussainara Khatoon Vs. Home Secretary, State of Bihar", 1980 (1) SCC 98]; ["A. R. Antulay Vs R. S. Nayak & Anr", 1992 (1) SCC 279]; ["Kartar Singh Vs State of Punjab", 1994 (3) SCC 569]; ["Raj Deo Sharma Vs State of Bihar ", 1998 (7) SCC 507]"; [Raj Deo Sharma II Vs State of Bihar", 1999 (7) SCC 604] and [Akhtari Bi Vs State of M. P", 2001 (4) SCC 355], has in unambiguous terms, held that "the right of speedy trial to be part of Article 21 of the Constitution of India."

Further, much later but still almost two decades ago, the Hon'ble Supreme Court in ["Anil Rai Vs State of Bihar", 2001 (7) SCC 318] deemed it appropriate to provide some guidelines regarding the pronouncement of Judgments, expecting them to be followed by all concerned under the mandate of the Hon'ble Supreme Court of India, wherein, two Judges of the Patna High Court took two years for pronouncing a Judgment after concluding arguments when the parties were languishing in jail, the Counsel appearing in Hon'ble Supreme Court in challenge of the said Judgment asked in unison whether the exhortation made by the Patna High Court in 1961 is not intended to apply to the High Court.

Referring to the facts culled from the Appeal (Crl.) 389 of 1998 titled Anil Rai Vs State of Bihar (supra), it is stated that when the Sessions Court convicted nine persons on different counts including murder as per his Judgment dated 04.05.1991, all the convicted person filed appeals before the High Court of Patna. While remaining in jail, the convicted persons waited for their turn to reach the High Court to get time to hear, their appeals. It took five years for such turn to reach. Advocates engaged by them then addressed arguments before the Division Bench and learned Judges on conclusion of arguments on 23.08.1995, adjourned the appeals sine die for Judgment. The convicted persons while remaining in jail again waited for the D'day.

The members of their family naturally had been anxiously waiting for the same, but days and weeks and months and even years passed without anything happening from the Court. In the meanwhile, one of the convicted persons died in jail. By then even the anxiety of the other convicted persons would have died down and appeals would have been consigned to records. It is difficult to comprehend how the Judges would have kept the details and the nuance of the arguments in their memory alive after the lapse of a long period. Finally, the Judgment was pronounced on August 14, 1997.

The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the Judiciary, expressing anguish at some High Court Judges being guilty of inordinate delay in pronouncing Judgments, unmindful of their obligation and Oath of Office they had taken solemnly, Justices K. T. Thomas & R. P. Sethi had said in "Anil Rai Vs State of Bihar" (supra) that Chief Justices of all High Courts could direct their Registries to print the two crucial dates on the Judgments.

It was further held,
"12. The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of Code of Criminal Procedure. It is submitted that such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is stated to be contrary to the maxim Actus Curiae Neminem Gravabit, that an act of the Court shall prejudice none.

13. The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the Judiciary, we have decided to consider this aspect and to give appropriate directions."

Sethi, J., enumerated them succinctly as follows:
  1. The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a case where the Judgment is reserved and is pronounced later, a column be added in the Judgment where, on the first page, after the cause-title date of reserving the Judgment and date of pronouncing it be separately mentioned by the court officer concerned.
  2. That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/ Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the Judgments reserved are not pronounced within the period of that month.
  3. On noticing that after conclusion of the arguments the Judgment is not pronounced within a period of two months the concerned Chief Justice shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the Judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover.
  4. Where a Judgment is not pronounced within three months from the date of reserving Judgment any of the parties in the case is permitted to file an application in the High Court with prayer for early Judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.
  5. If the Judgment, for any reason, is not pronounced within a period of six months any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.

The aforementioned principle has been forcefully restated by the Supreme Court on several occasions including in ["Zahira Habibulla H. Sheikh & Ors. Vs State of Gujarat & Ors.", AIR 2004 SC 3467 Paras 80-82], ["Mangat Ram Vs State of Haryana", (2008) 7 SCC 96 Paras 5-10] and most recently in ["Ajay Singh & Anr. Vs State of Chhattisgarh & Anr", AIR 2017 SC 310].

Judgments reserved and not delivered get piled up, to the eternal prejudice of the litigant public. Tapping into the portals of the Madras High Court, one is rudely reminded of a Circular of 2014 Vintage, issued at the instance of then Chief Justice Sanjay Kishan Kaul (now a Puisne Judge of the Supreme Court).

In that Circular, Court Officers before the Principal Bench at Chennai & the Madurai Bench were directed to mention the dates on which orders were reserved and the dates of their pronouncement, immediately after the cause titles of the cases.
Interestingly, the Circular was in the 'wake' of a Judgment of the Hon'ble Supreme Court of India dated August 06, 2001. The Circular was not contemporaneous, affording enough breathing space to the law lords.

Cut to July 10, 2019. Then Chief Justice Vijaya Tahilramani had sent a similar reminder to the Learned Judges pointing out that that the e-Courts Website and National Judicial Data Grid are most accessed websites and as the proceedings of the cases are being uploaded in the Website, the parties concerned are watching the progress of the cases. She indicated that parties were sending petitions/letters over the delay in pronouncement of orders, after reserving the cases.

Hence, she felt that it was expedient to proceed with the cases without any delay. When causes are reserved for Judgments/Orders, she felt that the same has to be pronounced at the earliest by keeping in mind the directions of the Supreme Court of India in Anil Rai (supra).

Adverse effect of the problem of not pronouncing the reserved Judgments within a reasonable time was considered by the Arrears Committee constituted by the Government of India on the recommendation of the Chief Justices' Conference. In its report of 1989-90 Chapter VIII, the Committee recommended that reserved Judgments should ordinarily be pronounced within a period of six weeks from the date of conclusion of the arguments. If, however, a reserved Judgment is not pronounced for a period of three months from the date of the conclusion of the arguments, the Chief Justice was recommended to be authorised to either post the case for delivering Judgment in Open Court or withdraw the case and post it for disposal before an appropriate Bench.

It is true, that for the High Courts, no period for pronouncement of Judgment is contemplated either under the Code of Civil Procedure or the Criminal Procedure Code, 1973, but as the pronouncement of the Judgment is a part of Justice Dispensation System, it has to be without delay. In a country like ours where people consider the Judges only second to God, efforts be made to strengthen that belief of the common man.

Delay in disposal of the cases facilitates the people to raise eye-brows, some time genuinely which, if not checked, may shake the confidence of the people in the Judicial system. A time has come when the Judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the Rule of Law. For the fault of a few, the glorious and glittering name of the Judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy Justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted Justice.

As the saying goes, Never waste a good crisis. If all reserved Judgments could come tumbling out, as if in an assembly line, Justice may be done to We the People.

It may, however, not be out of place to allude to the ongoing debate among advisers to policy makers that in the face of inordinate delays and the institution's inability to clear the backlog of reserved judgments, as to why the Centre or state should not come out with Ordinances to bring closure to at least vexed litigation, where national interest may be overwhelming.
Such a course may be the need of the hour in this virally vulnerable moment. But if that happens, it may not surely augur well for the Judiciary as an institution.

Written By: Dinesh Singh Chauhan, Advocate
J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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