What’s Slowing Down India’s Fast-Track Courts
Lack of physical infrastructure, shortage of dedicated judicial officials & clear mandates are some of the reasons.
Swift justice in fast-track courts, established in the early 2000s to reduce the time it takes to decide cases, is still elusive. Nearly 81 percent of the 26,965 cases completed by fast-track courts in 2019 took anywhere between one and 10 years for the trial to be completed, according to National Crime Records Bureau (NCRB) .
Further data show, 69 percent of the 17,155 cases disposed of by the Protection of Children from Sexual Offences (POCSO) courts in 2019 took between one and 10 years. This is despite the fact that the specifies that the special courts must complete trial, as far as possible, within one year from the date of taking cognisance of the offence. (Pending child trafficking cases were to POCSO courts, hence the longer pendency than the eight years that the Act has been in force.)
Their performance has been below par: At the end of 2019, rape cases had a pendency rate – pending cases at the end of the year as a percentage of total cases for trial – of 89.5 percent and the conviction rate of 27.8 percent, according to NCRB data. For POCSO cases, 88.8 percent cases were pending at the end of the year, and of those disposed of, 34.9 percent ended in a conviction, data show.
After nearly 20 years of existence, why do India's fast-track courts remain sluggish, defeating the very purpose of their institution – faster disposal of pending cases? Lack of physical infrastructure, shortage of dedicated judicial officials, and clear mandates are the reason, legal experts say, suggesting that increased staff strength and procedural reforms can fix the situation.
The Journey in Fits And Starts
Fast-track courts (FTCs) were first recommended by the in 2000 "to substantially bring down, if not eliminate, pendency in the district and subordinate courts over the next five years". Yet, pending cases more than doubled in nearly two decades – from 4.9 million cases under the Indian Penal Code (IPC) in to 11.3 million in , according to data from the NCRB.
The pendency of cases in district and subordinate courts increased from 26.1 million in 2018 to 31.7 million (comprising 22.8 million criminal cases and 8.9 million civil cases) in January 2020, an increase of 21 percent, according to a standing committee from March 2020.
Following the Finance Commission's report, Rs 502.90 crore was granted by the Centre to create 1,734 additional courts in different states for a period of five years. "This was nowhere enough if you consider the cost such as paying for buildings or court halls and judges and adjoining staff. In fact recurring costs of salaries of judges and staff was one of the reasons for states opting out of fast track court schemes," according Alok Prasanna, research associate of Vidhi Centre for Legal Policy.
By 2005, state governments had notified 1,734 FTCs, of which 1,562 were functional according to by the ministry of Law and Justice. The functioning of these courts, however, varied from . The Centre then extended support for the scheme for another six years, by the end of which 1,192 FTCs were functioning according to a Lok Sabha in March 2013 .
In 2011, the central government stopped funding fast-track courts. The decision was in the Supreme Court (SC) in 2012, but the apex court said it was up to the states to continue or shut down these courts depending on their financial situation. Three states – Maharashtra, Tamil Nadu and Kerala – had said they would continue running these courts while Delhi, West Bengal, Himachal Pradesh and Karnataka said they would continue them till 2013, according to a Rajya Sabha in 2012. While Arunachal Pradesh, Assam and Tripura had converted the FTCs into regular courts, Chhattisgarh had shut down all its FTCs, the reply said.
In 2013, the United Progressive Alliance government at the Centre set up a ‘Nirbhaya Fund’, amended the Juvenile Justice Act and set up fast-track Mahila Courts. Some other states such as Uttar Pradesh, Jammu and Kashmir, Bihar etc. also set up FTCs for rape cases thereafter, according to this Lok Sabha reply from February 2020.
More recently in 2019, the Narendra Modi-led government a for setting up 1,023 fast-track special courts (FTSCs) across the country for expeditious disposal of pending rape cases under the IPC and crimes under the POCSO Act. In July 2019, the setting up of a centrally funded special court in each district where more than 100 FIRs are registered under the POCSO Act in order to deal exclusively with these cases.
While Rs 140 crore was in 2019-20, Rs 57.7 crore has been released during the financial year 2020-21 for the scheme under which each FTSC is of 41-42 cases every three months and at least 165 cases in a year.
"The release of funds depends on the plans submitted by states, so if you see the release is not too good, [it] is because states are yet to submit their plans," Prasanna said. Presently, 597 FTSCs are functional, of which 321 are exclusive POCSO courts, the Centre the Rajya Sabha in September 2020.
‘Fast’ in Letter But Not in Spirit
Fast Track courts in Delhi dispose of a case in 122 days on an average, while a regular court takes 133 days, Daksh's shows. So, why are fast-track courts failing to fulfil their purpose? Experts say fast-track courts operate no differently than regular courts. For one, they have similarly heavy caseloads, says Deepika Kinhal, lead (judicial reforms) and senior resident fellow at the Vidhi Centre for Legal Policy.
"A fast track court is set up for a category of disputes… These categories themselves have a large chunk of cases. So it is just like any other court hall in the district judiciary – you have the court hall under individual judges who have anywhere between 50 to 100 cases listed per day."
Then, there are no changes in the legal process to enable the cases to move forward faster. "There is no element of process engineering or [abbreviated] timelines, except where it is just fixed as an ad hoc thing (for instance, for high-profile cases) – that this case will get disposed of in three months or six months – which is rarely adhered [to] because there is simply no supporting infrastructure to ensure that the timeline is met," she added.
There is also the question of clear mandates – what kind of cases are fast-track courts supposed to hear. The fast-track courts set up under the Nirbhaya Fund, for instance, were not clear whether all cases of gender-based violence such as 'eve-teasing' (street harassment) or domestic violence came under their purview, said Prasanna.
What Causes the Legal Logjam
In a recent amendment to Section 309 of the Criminal Procedure Code (CrPC), the time limit to dispose of rape cases has been set at two months (60 days) from the date of filing of the charge sheet.
However, the procedural steps in such cases, on average, take much longer. The life cycle of a rape case begins after the filing of a charge sheet and it goes through three stages – framing of charges, evidence and final judgement. An average Delhi fast-track court spends 65 percent of its time at the evidence stage, which involves recording of statements in three parts--prosecution evidence, statement of the accused under Section 313 of CrPC, and defence evidence – showed a 2019 by civil society group Daksh.
Across the sessions courts and the district courts, delay due to absence of witnesses was seen as one of the main reasons for adjournments, showed the study. The absence of witnesses could be due to various reasons--personal issues, delay due to non-receipt of the Forensic Science Laboratory (FSL) results, unserved notices due to incomplete/changed addresses, incomplete list of witnesses in the charge sheet, non-availability of police witnesses due to preoccupation with other duties, etc.
Another cause for delays is adjournments sought by lawyers.“We have a litigation culture in India, in which primarily what the lawyers do is delay the case hearing. This culture encourages seeking adjournments; in fact, clients come to you [lawyers] to delay the cases,” said Prasanna of Vidhi Centre for Legal Policy.Alok Prasanna
Delays can also be caused because many a time the decision of a fast-track court is challenged in the high court or the Supreme Court, said Leah Verghese of Daksh.
There are countries that have put in place different mechanisms to ensure that all cases move through courts quickly, not just one or two, or 10," added Prasanna, suggesting that the entire legal system needs to be sped up.
The new amendment to the POCSO Act in 2019 has given a clear mandate to fast-track special courts that will be dealing with cases of child trafficking and child sexual abuse. If this is streamlined successfully, this may lead to change, experts believe.
A sustained study of POCSO fast-track courts, after they have worked for three-four years, would show if their functioning ensures that cases get heard and resolved quickly. If so, the practices of these courts could be adopted in regular courts as well, Prasanna said.
Judicial officers are constrained in terms of capacity and time, the same problems that are visible at these stages in regular courts, said Kinhal. "[If] you actually give these judicial officers appropriate support staff and [if] they are dealing with only a limited number of matters, then they can definitely hear these cases on a daily basis or give shorter dates to ensure that the evidence in the cross-examination stage goes by at a quicker pace," she said.
Ad-hoc judges are to FTCs from among retired district and sessions judges. "They are more or less judges from sessions courts who are given the extra responsibility of fast-track courts," Prasanna told IndiaSpend.
As of 20 February 2020, around 21 percent of the sanctioned strength (24,018) of judicial officers in subordinate courts was vacant in different states; of the 5,146 vacancies, a large number of seats were vacant in the states of Uttar Pradesh (1,053), Bihar (776), Madhya Pradesh (370), Rajasthan (309) and Gujarat (308), according to a standing committee report from March 2020.
The same report showed increased pendency of cases in district and subordinate courts, as we said, from 26.1 million in 2018 to 31.7 million in January 2020, an increase of 21 percent (5.6 million cases).
The push FTCs need: For fast track courts to be more effective, trials must be completed in a time-bound manner. For this, a two-pronged approach that improves the human capacity of these courts with dedicated judges and competent staff while restructuring processes is needed, legal experts say.
Capacity building: "A single judge handles multiple cases, often judges are appointed on an ad-hoc basis and they have to manage not just the fast-track courts but also other duties," says Prasanna of Vidhi Centre for Legal Policy.
Fast-track courts must have dedicated judges so that cases can be heard on a regular basis. "Trials are not heard on a regular basis; a judge/judicial officer, on average, has to hear not just cases related to rape and murder but also remand and bail applications which take up a majority of their time," said Manjula Rao, former public prosecutor at the Bombay High Court.
Competent staff such as stenographers and clerks can help with evidence processing and serving notices to witnesses and investigating officers, which saves a lot of time, Rao added.
The POCSO amendment act of 2019 has made a provision that a judicial officer and seven staff will work exclusively for disposal of rape cases and of cases under the POCSO Act. No existing judicial officer or court staff will be given additional charge of FTSCs.
Process engineering: Certain time-consuming processes must be reengineered so as to make the system more efficient. "For example, there are around 100 cases listed in a day in any given courtroom. No judge will be able to go through these many cases in a span of 8 hours, which then leads to more adjournments. There should be a realistic assessment of the time taken for each hearing and then have a proper time table which offers ample time to every case," says Kinhal of Vidhi Centre for Legal Policy.
"Lawyers are notorious for seeking adjournment in order to prolong a case; but many a time a lawyer may have two or more cases scheduled for hearing on the same day," explained Farhana Shah, senior lawyer of the Bombay High Court. "However, adjournments can be dangerous because in cases of rape or POCSO cases, the longer a witness has to wait, the higher the chances of them turning hostile," says Rao.
There should be a clear mandate for fast-track courts as is the practice in such as Spain and Liberia. The hearings take place in a stipulated time frame and any case pertaining to gender-based violence is automatically transferred to these courts. In the United Kingdom, evidence is put together beforehand and presented together rather than one at a time; a time table is set and the evidence to be submitted is listed.
(This story was first published in The News Minute and has been republished with permission)
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