“Justice Delayed Is Justice Denied.” -William Ewart Gladstone.
“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfil its primary function to protect them and their families in their homes, at their work and on the public streets.”
I will argue in this paper that, A)- Litigation as a means of dispute resolution is not an effective method. B)- In the long process of litigation, restorative justice doesn’t happen.
The researcher has analysed the problems associated with the process of litigation and suggested the ways in which these problems can be tackled to devise a more effective and efficient system.
Problems associated with litigation and its solutions
Litigation, i.e., a contest in a court of justice for the purpose of enforcing a right, is a complex and time-consuming process which has led to the pendency of cases. Half of all the 8 million cases in the High Courts have been pending for more than three years. So, speedy justice is the need of the hour.
In Hussainara Khatoon v. State of Bihar, the concept of ‘Speedy Trial’ was evolved. It was said that undue delays violate article 21 of the constitution which embodies the right to speedy trial. In Madhu Mehta v. Union of India the right to speedy trial was further substantiated and was said to be a part of fundamental right to life and personal liberty. Then, in Ranjan Dwivedi vs C.B.I Tr. Director General it was held that “Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial.”
So, the constitutional guarantee of ‘speedy trial’ is a significant shield to counteract undue and harsh incarceration before trial; to limit concern about public accusation and to constrain the possibilities that long delays will debilitate the capacity of an accused to protect himself.
Due to this cumbersome process some cases have been going on for years. Like,in the case of Machal Lalung. He was booked under Section 326 of the IPC; his case never came up for hearing and without trial he was arrested. He was released after spending 54 years in jail. Similarly, in the Delhi Uphaar Cinema fire case, it took 18 years to convict the offender under Section 304-A whereas in the Babulal v. Ismail case, Ismail was found not guilty of theft(Section 378 of the IPC) of Rs 20 after 41 years of legal battle.
After considering the above cases, one question comes to mind “Did they truly get justice?” Some optimistic people may call it justice but for me it is not justice.The tiring judicial procedure, in a circumstance like this, often turns out to be psychologically and monetarily tormenting for the victims. A double burden is felt by the victim side. It becomes more troublesome, if the victim is from a vulnerable sect of the society. Many people because of the fear of losing their money and still not getting justice get discouraged to proceed with the legal fight which ultimately benefits the wealthier party. Even if the victim comes from a privileged section, waiting for so many years to get justice doesn’t give them any relief. There could be a possibility that the accused is dead when the judgement comes as it happened in the Hashimpura massacre case where 19 police personnel were accused under Sections 147, 148, 149, 302, 307, 347, 436 and 336 of the IPC and when the verdict came 3 had already died.
“Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”
Therefore, to streamline the system Alternative Dispute Resolution techniques like arbitration, conciliation, mediation, etc. provided under Section 89(1) ofC.P.C. should be used. “Alternative Dispute Resolution is an attempt to develop a device which should be capable of providing an alternative to conventional methods of resolving disputes.” These processes are uncomplicated, fast and also help in maintaining the confidentiality. They assist in the resolution of hostility between the parties and result in a win-win situation whereas adjudication of court results in a win-lose situation. In this, parties try to resolve the dispute rather than get into a battle of “winning the case”. It is rightly stated that “Competition begets disputes and collaboration begets resolutions.”
In disputes like Gulam Abbas & Ors vs State of U.P. & Ors, which have been going on for 141 years, mediation could be a great alternative as it could lessen the amount of antagonism that persist between the communities and help them to reach an amicable solution.
In the tiring process of litigation restorative justice doesn’t happen. “Restorative justice is a process by which the harm done to victims of crime can be reduced or repaired. This is generally a cooperative effort between victim and defendant in which defendants are made aware of the personal impact of their criminal actions. In addition, the victim of the crime has an opportunity to work with the defendant in an attempt to dissuade the defendant from committing similar crimes in the future.”
Restorative Justice tries to balance the worries of the community and the victim with the need to reintegrate the offender into the society. It also tries to assist in the recuperation of the victim and empower all the parties with a stake in the justice procedure to take a fruitful interest in it. In cases like domestic violence or sexual assault, where the defendant and the victim cooperation may not be possible, restorative justice involves the community more than the individuals.
Though the constitutional philosophy postulated as “right to speedy justice” has grown in age, the objective looked to be accomplished is yet a far-away pinnacle. We need to make the justice system less complex and easily accessible to all because “If law is a private fief, a mystery known only to a privileged few adepts, then all pretence to justice is lost.”
The concepts like Alternative Dispute Resolution and Restorative justice can contribute immensely in making the justice system effective and these can become the fulcrum of global peace.
Finally, to conclude with the words of Lord Hewet that “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”