Process Should Not Become The Punishment, Don't Deny Bail Thinking Accused Might Not Get Convicted : Justice Kaul's Advice To Trial Judges

While delivering his speech at the valedictory ceremony of the First All India District Legal Services Authorities Meet, Supreme Court Judge, Justice Sanjay Kishan Kaul, on Sunday, encouraged all present, particularly, the members of the subordinate judiciary to bring an end to litigation before them by resorting to 'out of the box thinking' while also utilising the tools available within the traditional legal system. Otherwise, he expressed concern that even 500 years would not be enough to see an end to the issue of pendency of cases.

"The sheer volume of pendency to my mind is creating an impediment. If every case has to be tried till the end; every first appeal has to be heard by the courts; if every matter transcends itself to come into the Supreme Court, why 200 years, 500 years we will also not see the end of this litigation."

He reckoned that the Legal Services Authorities have a crucial role to play in this regard. He emphasised that legal assistance should not be idealistic, but practical. For e.g. apart from advising a convict who is on the verge of completing their sentence to file an appeal; they should also be guided to file for remission.

"Acquittal is one aspect. His case should go for remission, is another. These two are mutually exclusive. Sometimes you know there is no merit in appeal but you pursue to bring quietus. Going on the remission side would be efficient."

He suggested that efforts should be made to ensure that litigation is closed at the first stage itself; this would relieve the higher judicial fora from additional burden and would go a long way in tackling the backlog. It was indicated that plea-bargaining and mediation has the potential to close litigation at the initial stages. Justice Kaul was of the opinion that the accused persons, who might have committed the offence, would take plea-bargain rather than insisting on seeking acquittal. Unfortunately, in reality, he found that the criminal justice system has failed to make the accused aware of the existence of such a mechanism.

"Truly if asked and if they have been actually guilty of the offence whether proven or not, they according to me would be more than willing to go through a plea-bargaining. But the system has not been able to guide them or make them aware of plea-bargaining. It is necessary that the judges and the defence system that is now being set up consciously make available this plea-bargaining mechanism and make them aware of it. This is one aspect. Along with plea bargaining is also mediation."

Keeping People Behind Bars Is Not The Solution; Prosecution To Be More Innovative And Scientific In Its Approach

It was pointed out that the process should not be the punishment; keeping people behind bars is not the solution. He stated that the mindset of the prosecution which endeavours to keep the people behind bars needs to be changed. He noted even the members of the judiciary often borrow the prosecution's mindset to keep the accused behind bars for a long period of time. Justice Kaul highlighted that the prosecution ought to be more innovative and scientific in its approach.

"This is the mindset of the prosecution…this is also the mindset of all our brethrens at times - 'Prosecution is not going to do its job, I know this fellow has done this, let me put him behind bars for the time period I can even if I am not able to convict him'. That is no solution. If the prosecution is to do its job, it has to be more innovative, more scientific, it has to use technology."

He observed that suppose if 30% conviction is recorded, the remaining 70%, who are ultimately acquitted, end up spending a lot of time in jail. It was emphaised on that it is not the job of a judge to do the work of a prosecutor. Just because a judge feels that the accused might get away is not sufficient reason to keep them behind bars.

"See it is not our job to be the prosecutor….To say that people get away so we should keep them behind bars through this convoluted process is not the solution."

Not Enough FSL Labs; India Blessed With Software And Human Resources In Abundance, Should Be Utilised

He flagged the issue of the lack of FSL Labs which is causing impediment in investigation, especially for economic offences. Software and human resources being in abundance in India, Justice Kaul stated, the same should be put to good use and delay should not be caused for unavailability of FSL labs.

"One of the things flagged was absence of sufficient FSL labs. In economic offence someone is behind the bars for 2.5 years, the investigation is not complete. They say there is a lot of data and FSL is still processing. Our country is a country where there is so much software available, so much manpower available - we need to use that rather than prolonging the case. That mindset needs to change."

Spurt In Criminal Litigation Is Related To Slow Pace Of Adjudication Of Civil Cases

He reckoned that the concern is not the growth of civil litigation, but that of criminal litigation. However, he was of the belief that the spurt in the criminal litigation is primarily because of the slow pace of adjudication of civil cases - because a suit trial would take a long time and people file cases on the criminal side thinking that the opposite party in the civil suit would settle. So the ultimate goal is to settle the matter.

In Family Disputes Lawyers File A Bouquet of Cases - Both Civil And Criminal

In family disputes, he stated, that lawyers tend to file 'a bouquet of standard cases' - both civil and criminal. To put an end to these bouquet of cases, he thought, plea bargaining and mediation would come handy.

"Look at family disputes. I call it a bouquet of cases. The lawyers are expert in a bouquet of standard cases which are filed. This bouquet has civil cases, criminal cases. That is why mediations and often plea bargaining at times can arrive at a solution to put an end to these bouquet of cases. So in that sense plea-bargaining and mediation have to work hand in hand."

Distinction In How To Approach Less Heinous And More Heinous Offences

He also suggested that there being a distinction between less heinous and more heinous offences, a distinction can also be made in how they are approached. Offence of 7 years and less or even those up to 10 years can be in one category and new techniques can be applied to put an end to these matters at the earlier stages, so that the judges can concentrate on the life sentence cases and cases involving more heinous offences.

Low conviction rates; No time to prosecute for perjury

Justice Kaul also addressed the issue of low conviction rates and noted how in our country people get away even by lying at the witness box, because the judicial system does not have sufficient time to prosecute for perjury. He stated that in other jurisdictions, even the most eminent persons would not dare to lie when they are in the witness box, because they know the consequences are going to be harsh.

Offer compensation At The First Stage; Often Settlements Are Reached When Parties Are Before Supreme Court; Judicial Time Is Lost In The Process

He agreed that the criminal justice system should meet their responsibility towards the victims, but in some cases the litigation can be closed at the very first stage by offering compensation, as also provided in the Code of Criminal Procedure. He lamented that the same is not resorted to in reality. These cases go up to the Supreme Court and there the parties agree to settle. In the whole process, he stated a lot of judicial time is lost.

"I agree, there has to be a realisation of the victimology principle. I also believe that there is a responsibility towards the victim. In some cases suppose of hurt or grievous hurt after passage of time they settle; compensation is the methodology. The procedure of compensation is available, but the question is do we utilise it."