by Author Y.Srinivasa Rao ,Judge

“At least one out of every three women is likely to be beaten, coerced into sex or otherwise abused in her lifetime.”
-UN Secretary-General Ban Ki-moon

‘In China, 118 boys were born in 2010 for every 100 girls. The results of India’s 2011 census show that, amongst children up to age six, there are only 914 girls for every 1,000 boys’.

Poor and innocent parents are being trapped with catch lines
‘ Spend Rs.500/- now (to know sex of child) and Save Rs.1,00,000/-(dowry) later.’
My appeal is to beware of such catch lines and save girl child.

Introduction

The women are said as the mothers to the whole world. By the time the World Conference convened, the idea that “women’s rights are human rights” had become the rallying call of thousands of people all over the world and one of the most discussed “new” human rights debates. Circumstances of extreme poverty or conflict unquestionably fan the flames of violence against women. The Vienna Declaration and Program of Action, which is the product of the conference and is meant to signal the agreement of the international community on the status of human rights, states unequivocally that: The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights.
In 17th century, Hobbes, Jean-Jacques Rousseau and John Locke who are natural law philosopers,developed the theory of natural rights in reference to ancient philosophers such as Aquinas and Aristotle. Starting in the late This trend, as to importance of natural rights, increased in 18th century in Europe. Declaration of the Rights of Woman and the Female Citizen, which was published in 1791, modelled on the Declaration of the Rights of Man and of the Citizen  of 1789. Beginning from 1840, the British and the United States passed   statutes to protect women’s property from their husbands and their husbands’ creditors. Then, “control over our own bodies” is a sound criticism for male domination. In 2011, one of the experts of United Nations opines that in India, she found human rights workers and their families who “have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged and under surveillance because of their legitimate work in upholding human rights and fundamental freedoms. No doubt, ‘Rape’ is the fastest growing crime in the country today. Delhi takes the top slot for crimes ranging from murders and rapes to dowry deaths and abductions. The 2012 Delhi Gang Rape Case involves a rape and murder that occurred on 16 December 2012 in  New Delhi, when a 23-year-old female by name ‘Nirbhaya’   was gang raped.

“As a father of three daughters
I feel as strongly about the incident
as each one of you”
– Father of Nirbhaya expressed empathy.

The Award ’ Feraless’ the International Women of Courage’ was announced to Nirbhaya by the in 2013. After her death, many of the mourners carried candles, wore black dress and some pasted black cloth across their mouths. Our Prime Minister commented, for calm, as “violence will serve no purpose”. As a tribute to the girl victim, The Criminal Law (Amendment) Bill, 2013 was passed by the Lok Sabha  on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provided for amendment of Indian Penal Code,1860, Code of Criminal Procedure,1973 and Indian Evidence Act on laws related to sexual offences.

Women Rights are Human Rights.
The concept of women’s human rights owes its success and the proliferation of its use to the fact that it is simultaneously prosaic and revolutionary. Indian Judiciary over a period of six decades has acquired a well-entrenched system adopted came forward from other two organs of the Govt. to protect and assert the Human Rights of women with suitable corrections whenever and wherever required.
The orthodox Hindu funeral custom of self-immolation of widow after the death of her husband is now no more. In 1829, the practice of ‘Sati’  was formally abolished by William Bentick after years of campaigning by  the ‘Branmo Samaj’ established by Raja Ram Mohan Roy.
In 1929,  Child Marriage Restraint Act was passed prohibiting marriage of minors under 14 years of age. In 1950, Part 3 of the Constitution contains a Bill of Fundamental Rights enforceable by the Supreme Court and the High courts. It also provides for reservations for previously disadvantaged sections in education, employment and political representation. In 1955, owing to reform of family law, Hindus give more rights to Hindu women. In 1973,   in Kesavananda Bharati’ case, it is held that   the basic structure of the Constitution (including many fundamental rights) is unalterable by a constitutional amendment. As was pointed out in  Menaka Gandhi v. Union of India (1978)  that the right to life under Article 21 of the Constitution cannot be suspended even in an emergency.
In 1985-1986, in the case of Shah Bano,   the Hon’ble Supreme Court recognised the Muslim woman’s right to maintenance upon divorce, sparks protests from Muslim clergy. To nullify this ruling, The Government enacted The Muslim Women (Protection of Rights on Divorce) Act,1986.
In 1992, an important constitutional amendment establishes Local Self-Government (Panchayati Raj) as a third tier of governance at the village level, with one-third of the seats reserved for women. In 1993,  National Human Rights Commission is established under the Protection of Human Rights Act. 2001. Our Indian courts passed extensive orders to implement the right to food.
In 2005 , a weapon was given to Indian citizen which is titled ‘ Right to Information Act’ . In 2005,  National Rural Employment Guarantee Act (NREGA) guarantees universal right to employment. In 2009, The Hon’ble High Court of Delhi  declared that Section 377 of the Indian Penal Code,1860 which outlaws that “unnatural” sex acts, is unconstitutional when applied to homosexual acts between private consenting individuals, effectively decriminalising homosexual relationships in India.

Role of Judiciary to protect the Rights of Women
and Girl Child .

Judiciary in India has reiterated the Human Rights of women by filling the vacuum in municipal law by applying, wherever necessary, International instruments governing human rights.

‘ Wife should undergo a medical examination to prove her virginity was found to violate her right to privacy and personal liberty enshrined under Article 21 of the Constitution’.
The Hon’ble Supreme court observed in Surjeet Singh v. Kamaljit Kaur1

The apex judiciary in India has interpreted a number of basic human rights of women in the light of fundamental rights guaranteed in Part III of the Constitution. These fundamental rights gone much beyond the American Bill of Rights. In a series of cases the Apex Judiciary has set some remarkable standard of asserting the gender equality and Human Rights of women. The dignity of women was uphold by the Hon’ble Suprem court of India in the case of Rupan Deal Bajaj v. K.P.S. Gill2,
As is pointed by the Hon’ble the A.P. High Court in T. Saritha v. Thnkata3 Subbaiath, the principle of reasonableness to matrimonial matters and invalidated Section 9 of the Hindu Marriage Act, 1955 found violating the right to privacy and human dignity guaranteed under Article 21 of our Constitution.
In the case of Ranghubans Saudagor Singh v. State4, the Hon’ble Punjab and Haryana Court held what is forbidden under the Constitution is discrimination on’ the ground of sex alone, but when the peculiarities of sex added to a variety of other factors and consideration from a reasonable nexus with the object of classification than the Constitutional bar under Articles 15 and 16(2) cannot be attracted.

As is observed in Air India v. Nargesh Mirza5,the validity of the Indian Airline’s and Air India’s service rules providing that an Air Hostess had to retire from service at the age of 35 or on marriage-whichever was earlier, or if she got married within four years of confirmation or on first regnancy was struck down and held to be arbitrary.
In case of State of Maharashtra v. Madhukar Narain6, the Hon’ble Supreme Court pointed out that even a woman of easy virtue is entitled to privacy and that no one can invade her privacy as and when he likes.
It was pointed out in Neera v. L.I.C.7 that the right to privacy of women would preclude such questions to be put to female candidates as modesty and self-respect may preclude an answer.

In case of Gautam Kundu v. State8, the woman refused the husband’s application for a blood test to disprove paternity as it would be slanderous. Embarrassing and humiliating for the woman.
In the case of State of Punjab v. Gurmit Singh9, the Hon’ble Supreme Court directed that the trial of the case must be held in camera and that three rapists of a minor girl were convicted in this case
In Bodhi Satwa Gautam v. Subra Chahraborty,10 the Hon’ble Supreme Court pointed out that rape is a crime against basic human right and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21.
In the case of The Government of A.P. v. P.B. Vijay Kumar, AIR 1995 SC 1649, it was observed that the special provision under Article 15(3) which the state may make to improve woman’s participation in all activities under the supervision and control of the state can be in the form of either affirmative action or reservation.
In a land mark ruling, Sarla Mudgal v. Union of India, it was pointed out that the second marriage of Hindu after his conversion to Islam was void in terms of Section 494 of I.P.C. and the husband was liable to be prosecuted for bigamy.

In the case of Air India Statutory Corporation v. United Labour Union11, it was observed that it is the duty of the state to take responsibility for further development of these human rights and fundamental freedoms.

In the case of Pragati Varghese v. Cyril George Varghese12 ,the Hon’ble full Bench of the Bombay High Court pointed out that section 10 of the Indian Divorce Act,1926 under which a Christian wife had to prove adultery along with cruelty or desertion while seeking a divorce on the ground that it violates the fundamental right of a Christian woman to live with human dignity under Article 21 of the Constitution.

In case of Noor Saba Khatoon v. Mohd.Quasim13, the Hon’ble Court held that we have opted for a secular republic, secularism under the law means that the state does not owe loyalty to any particular religion and there is no state religion. That too, The Hon’ble Calcutta High Court extended the iddat period till such time the woman re-marries, to allow Muslim women a maintenance allowance beyond the customary iddat period of about three and a half months under the Muslim Women (Protection on Divorce) Act, 198614.

In case of Lalitha Sundari v. R. Kethar Nathan15, it was observed that two vacancies in the Education Committee of a family trust were to be filled from the female descendants of the trustees. The scheme court which was the appointing authority, appointing two male members and observed that female descendants include male descendants and females who appeared in the interview lack practical experience.

The Hon’ble Supreme Court never hesitated to adopt the international standard of gender-justice if the provisions of international law do not come in conflict with the national law. Human Right Act16, National Human Rights Commission17 and National Commission for Women were formed after considering instruments of international law. And as a matter fact all these commissions are working within the Constitutional limits. And these recommendations are also taken- into amount while making and implementing the law concerning women. In India, a due regard is given to the international human rights organisations. These organisations have freedom to visit any place in India. Under such a large umbrella of international and national law a complete legal protection is given to Indian women.
His Lordship Justice J S Verma Committee’s report indicated that failures on the part of the Government and Police were the root cause behind crimes against women. The report included the need to review AFSPA  in conflict areas, maximum punishment for rape as life imprisonment and not death penalty, clear ambiguity over control of Delhi Police etc. Accordingly, The Criminal Law (Amendment) Act, 2013 came into force from 3 April 2013. The changes made in the Act incomparison with the Ordinance in respect of the offences such as Acid attacks, Sexual harassment, Voyeurism,Stalking, Traffiking of person, and Rape.

Rape is generally considered a serious sex crime as well as a civil assault. The Legal rights of women refer to the social and human rights of women. One of the first women’s rights women’s rights declarations was the Declaration of Sentiments. Issues commonly associated with notions of women’s rights include, though are not limited to, the right: to bodily integrity and autonomy; to vote(suffrage); to hold public office; to work; to fair wages or equal pay; to own property; to education; to serve in the military or be conscripted; to enter into legal contracts; and to have marital, parental and religious rights.

Indian Constitution envisages an independent judiciary. There is a separation of powers between the executive and judiciary. The judiciary, which interprets the constitutional meaning of law and legality of executive actions, should have a separate existence. Lord Bryce said that there is no better test of the excellence of a government than the efficiency and independence of its judicial system. Indian constitution incorporated many provisions to ensure the independence of judiciary.
In India, over 32000 murders, 19,000 rapes, 7500 dowry deaths and 36500 molestation cases are the violent crimes reported in India in 2006 against women and girl children.
Everyone knows the statistics, the murder rates, rapes , the violence that burdens economic development, and threats to society. Instead of countinig crimes, attitude to reduce crime is needed.
No  person can claim to be protecting the place and population  as there is no control on gun and tongue . “Culprits are our guys,” this word doesn’t give right to any side , whether in uniform or  civvies to commit crime against innocent women and girl children. What emboldened these elements , is that their  horrendous acts of crime against women ,  are being ignored.
About two lakh cases of violence have been registered by the National Crime Records Bureau, according to its recent data. It is well known that discriminatory and oppressive social attitudes, not to mention plain greed and corruption, infect the attitude of the authorities, and especially the police, in many cases when serious complaints go uninvestigated or are poorly investigated. Only when investigation is free, fair, and speedy and only when the conviction rate improves in cases where women are the targets of various forms of violence can crimes against women be brought down. The press has a key role to play in working against any cover-up in this area.

PROTECTION OF GIRL CHILD
The girl child’s discrimination begins before birth in the form of female foeticide. In India, the Ministry of Human Resource Development shows that the average enrolment rate of girl children, ages 6-14,14-18 as 93.47% and 36.77%. Of course, they also show that 61.5% of girl child drop out of school before completion of XII standard.
Poor and innocent parents are being trapped with catch lines of Diagnostics teams.
‘ Spend Rs.500/- now (to know sex of child) and Save Rs.1,00,000/-(dowry) later.’

My appeal is beware of such catch lines and save girl child. No doubt, with help recent technology, even if we spend Rs.500/-, there are such people who can tell whether the child is male or female. Some may argue that ‘ Sex selection is a consequence of Globalization or Technology. It is stupendious to support such arguments. We must save girl child for better society. Everyone shall know the imporatance of ‘woman’. See, Adam called his wife’s name Eve, because she was the mother of all living.”  the Qur’an introduced fundamental reforms to customary law and introduced rights for women in marriage, divorce and inheritance. In “Shaanthi parva”, when dharmaputhra requests Bheeshma to  explain about the nature of women.
‘Bheeshma explains women the women, who respects their husbands, worships elders and do their duties, sincerely with patience. the women are said as the mothers to the whole world, and it is also said that the house becomes a hell, where these women are not happy and these kind of women must be respected and treated kindly and Krishna also agrees this’.

As is observed by International Labour Organisation (ILO), there are more than 100 million girl children between the age group of five to 17 are child labour.
Immoral Traffic Prevention Act is another safe guard to protect girl child frm trafficking in relation to prostitution. Juvenile Justice (Care and Protection of Children)Act protects the rights of children. Human trafficking is a $8 million illegal business in India. Around 10,000 Nepali women are brought to India annually for commercial sexual exploitation.  Each year 20,000–25,000 women and children are trafficked from Bangladesh. Babubhai Khimabhai Katara was a Member of Parliament when arrested for smuggling a child to Canada.

Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)Act was paased in 1994 and it was amended in 2002. Under this Act, sex selection is a deep rooted problem in our country. No person is allowed to disclose the sex of a child in any form of communication and no Hospital or clinic or person is permitted to conduct sex determination tests. Child survival, Child development,Child protection and Child participation are most important even under the National Plan of Action for Chidren,2005. In order to raise the status of girl child, the Government passed the Balika Samriddhi Yojana in 1997. Of course, this scheme was changed in 1999-2000 and now the girl child can, who go to school, receive money from Rs 300/- to 1,000/-. To become a good human beings and responsible citizens of India, there is Kishore Shakti Yojana was introduced which looks all aspects of adolescent girls.

Sexual offences against children are also covered in the IPC. Under section 317 of IPC, if mother or father expose or leave a child in place with intention of abandonment, it is an offence. Section 360 of IPC states that kidnapping from India is the defined as the conveyance of a person beyond the borders of India without their consent. Section 361 of IPC says that if a male minor of not yet sixteen and female minor of not yet eighteen is taken from their lawful guardains without their consent, it is termed kidnapping from lawful guardianship. Section 362 of IPC defines abduction as compelling, forcing or deceitfully inducing a person from a place. Section 363-A says that to kidnap or maim a minor for the pupose or employment of begging. Section 366A of IPC says inducing a minor girl for illicit intersourse with another person is an offence. Section 366B says that if any girl is imported into India from any country for illicit intercourse is an offence. Section 372 discusses the selling of a child (below the age of eighteen) for the purpose of prostitution or to illicit intercourse with any person, or knowing that it is likely that the child is being sold for such a purpose. Section 372 states it is a crime to buy a child for the purpose of prostitution or to illicit sex from any person. Rape is an offence under section 375 of IPC. Section 369 of IPC says kidnapping or abducting child under ten years with intent to steal from its person is an offence. Under section 494 of IPC, bigamy is an offence. Under section 498-A of IPC, if a wife is subjected to cruelty by her husband or relatives of husband, it is an offence.

Conclusion and Suggestions
Fortunately, the Hon’ble Supreme Court of India and the High courts interpret Constitutional provision in favour of women and girl children. Whenever there is a anti-women legislation, rule or order of the Government or any other agency then the Courts comes into picture to rescue the rights of women and girl children. It is the helper of the last resort and fortunately, it is also working for the welfare of the women and girl children. It is time to understand that there is a common challenge and  urgency  of a common response  to this growing menace in society.  The  need  of the hour is to give an expression of shared responsibility to the shared sense of crisis and an acute and growing concern over the violence and criminality affecting women.  No amount of  participation in any polls would help the matters if the crime  in society, particularly against women and girl children, is not eliminated . Fighting crime is more important than anything else. Despite the trauma women across all classes are reporting crimes such as rape and assault and do not feel helpless or abandoned by family or society as was the prevalent case before. Society is changing and government is forced to take action as it has run out of excuses such as society’s mindset or class divide.
In the cases of M.C.Mehta vs State of Tamil Nadu (1991), Goodrocks Group Ltd vs Centre of West Bengal18, Lakshmi Kant Pandey vs Union of India, Sheela Barse vs Union of India19, Unni Krishnana J.P vs Union of India and Bachapan Bachao Andolan vs Union of Inda(2011), the Hon’ble Apex Court emphasized on the rights of child and that The Indian Government has to take effective steps for implementation of the principles laid down in those cases for welfare of Women and children.
Child Labour Welfare, Child welfare and right to Education, Adoption of child, Sexual Exploitation of children, Re habilitation of child prostitutes are challeges before us and the activism of Indian Judiciary as to this subject matter is a signal contribution for protection of rights of women and children.
Every child is innocent. Save them and it is responsibility too. A child can do an act yet children cannot defend themselves. So, we have to protect them. If you hate girl child, your future family may forget the word ‘mother’.
‘Save Girl child,Else your son will be forced to be ‘GAY’ is sound slogan which makes us to mull over the importance of survival of girl child.

By-  Author Y.Srinivasa Rao, Judge

My poignant thesis may well be set down in the beginning itself. Judicial accountability is now a catchphrase in many countries. The word ‘ Judicial’ , as defined in the Black’s Law Dictionary, means ‘belonging to the office of a judge’ and the word ‘accountable’ means ‘responsible’. It is thus known that ‘ Judge is responsible for his own judicial act.’ Accountability is the sine qua non of democracy. The concepts of judicial review and judicial accountability, which are similar, and both emanate from the basic premise that power corrupts and absolute power corrupts absolutely. Judicial objectivity should not be taken to mean value neutrality. Generally, in our country, the attitude towards a Judge can aptly be termed as ‘reverential’. Karl Marx said, ‘man is made by his environment’ . Judges like other human beings are not above these traits. Justice Cardozo rightly pointed out, “the decisions of a judge are consideration of social philosophy. He is influenced by inherited instincts, traditional beliefs, acquired convictions and conceptions of social needs. He must balance his analogies, his sense of right and all the rest and adding a little here and taking a little out there must determine as wisely as he can which weight shall tip the scales”. Lord Atkin said, ” justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, even through outspoken comments of ordinary men”. I am reminded of story of the British Lord Chancellor of long ago who is alleged to have said, in speaking of his power to appoint judges- ‘ I like my judges to be gentlemen. If they know a little law, so much the better.’ Now-a-days, we might say ‘ I like my judges to be people of integrity. If they know a little law, so much the better.’ Judicial philosophy which is to be adapted by the entire judicial community is reflected in the famous quotation of Ravindra Nath Tagore ;
In to the mouths of these
Dumb, Pale and meek
We have to infuse the language of the soul. Sorts of
In to the hearts of these
Weary and worn, dry and forlorn
We have to minstrel the language of humanity.
A fortiori, a bare perusal of our preamble of the Constitution, it suggests that securing ‘Justice’ to all the citizens is the foremost important task of the State. It is not out of scope to say a few words about power, because in a sense the concept of judicial accountability is one promoted by politicians in their constant struggle to free themselves from what they perceive as the shackles imposed upon them by the judiciary.
The Concept Of Judicial Accountability:
Judicial accountability is not the same as the accountability of the Executive or the Legislature or any other public institution. This is because the independence and impartiality expected of the judicial organ is different from other agencies.” To say about judicial power to ordinary citizens, it is seminal to reminisce the old analogy of the motor car. The three-way division of power between the Executive, the legislature and the judiciary like this – “The Executive controls the steering wheel. It decides which way the country will go.’’ The Legislature controls the fuel supply. It votes the money to fund the policies which the Executive proposes. The judiciary controls the brakes. It has the power to say no, when it believes that the Executive and/or the Legislature have over stepped their powers under the Constitution.” It is a useful analogy though it is not a perfect one. The important thing is, that it stresses the fact that by and large the judiciary’s power is a negative one. It should not be seen as a threat to the Executive but simply as a cautionary presence. The judges are the guardians of the Constitution. I should also make an observation that primarily when one speaks about accountability another is speaking about money. “Money is the root of all evil”. And judges really do not have much to do with money. Judicial power is not power over money. It is essentially a power of restraint. Thus in a very real sense judicial accountability is a very different concept from the accountability of Ministers, legislators and Public servants. But, to be fair, this does not mean that judges should not be accountable. As was said by his lordship Justice Verma, the former Chief Jusitice of Indian, “It’s long overdue. With the increase in judicial activism, there has been a corresponding increase in the need for judicial accountability.
The Cycle of Judicial Accountability can succinctly be understood from the following diagram.

As shown in the above diagram, the accountability of Judiciary mainly revolves within above said three parameters.
Mechanisms Of Judicial Accountability.
There are, I mull over, three categories on which one has to consider judicial accountability –
1. Accountability for personal conduct .
2. The personal decision-making .
3. Accountability of the Judiciary as a whole.
Accountability for personal conduct: A judge needs to update himself with not only the changes in the law but also constantly keep abreast with judicial ethics. According to Professor Tarr of Rutgers University in a paper presented in 2007, behavioral accountability seldom raises concerns about judicial independence. In South Africa, where the “transformation” of the judiciary is a major talking point, President Zuma in a speech to the Second Judicial Conference said , “The transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence.” And later – “Transformation means the promotion of a culture of judicial accountability.” It should not occur too often when judges are selected properly that they turn out to be drunkards, fraudsters or high-profile misbehavers. Yet if they do, there must be machinery by which they can be disciplined. There are two conflicting principles involved. The one is that judges must not be seen to be above the law like diplomats with their parking tickets. The other is that the judiciary as a whole should not be brought into disrepute, by the misbehavior of one of its members. Even more so, of course, when the alleged misbehavior turns out to be a spurious charge specifically designed to bring the judiciary into disrepute. This kind of Judicial accountability is usually achieved through the internal mechanisms of the judiciary.

Decisional accountability: Judges should not be forced to resign because of making a decision which is perceived to be wrong. This is a fundamental aspect of judicial independence. There is a general and necessary conflict, or at least tension, between the two principles of judicial independence and judicial accountability. But it is broadly accepted that judges must make their decisions without fear or favour. It necessarily follows that they cannot be disciplined for making a particular decision. But there is a whole built in system to ensure that judges are held accountable for their decisions. Now-a-days the old fashioned protection of “contempt of court” proceedings is frowned upon by the courts. We must face these public criticisms. It is part of our public decisional accountability. And finally, there is the system of appeals and reviews which is designed in an appropriate judicial way to hold individual judges accountable for their decisions. With respect to judicial decision-making the object of judicial independence is to ensure judicial fairness – that judicial decisions are based solely on evidence and law and not influenced by any improper consideration. With respect to judicial decision-making, judicial independence is the freedom to be fair.” In Andra Pradesh State Road Corporation vs. Satyanarayan Transporters the Supreme Court propounded the concept of judicial or quasi-judicial bias in the following words, “it is an elementary rule of natural justice that a person who tried a case should be able to deal with the, matter objectively, fairly and impartially”.
The accountability of the judiciary as a whole: This is sometimes known as the Judiciary’s Institutional Accountability. It is a somewhat shadowy concept because it is essentially an accountability to the public at large. Dato Param Cumaraswamy, former UN Special Rapporteur on the independence of judges and lawyers said in October 2003 – “Judicial accountability is today a catchphrase in many countries. Judges can no longer oppose calls for greater accountability on the grounds that it will impinge on their independence. Judicial independence and judicial accountability must be sufficiently balanced so as to strengthen judicial integrity for effective judicial impartiality. The establishment of a formal judicial complaint mechanism is therefore not inconsistent with judicial independence under international and regional standards.” The judiciary needs to be held in respect by the general public and indeed by the Legislature and the Executive if it is to function adequately. The duty to explain is a major part of the duty to account. Associate Justice Stephen Breyer of the US Supreme Court, at a conference on Judicial Independence in September 2006 put it this way – “The judiciary is, in at least some measure, dependent on the public’s fundamental acceptance of its legitimacy. And when a large segment of the population believes that judges are not deciding cases according to the Rule of Law, much is at stake. As Chief Justice Marshall warned “The people have made the Constitution, and they can unmake it.” And the society around us can undermine the judicial independence that is the rock upon which the judicial institution rests.” Out-of-control judges must be held accountable for their over-reaching, so that self-government and the rule of law can be restored and “judicial dictatorship” ended. As the chief of staff of Oklahoma Senator Tom Coburn declared – “I don’t want to impeach judges. I want to impale them.”” In England, in August 2005, Michael Howard, a former leader of the Conservative Party, launched a strong attack on the Law Lords for what he called their “aggressive judicial activism.” The reason for his attack was their decision that the indefinite detention without trial of foreign terror suspects contravened the Human Rights Act. Shri M.C. Setalvad said, “The powers of the courts in India in controlling arbitrary action by the administration were more far-reaching than in England, and perhaps he invoked at lesser cost and with greater expedition.”

Judicial Accountability – The Present Contours
The concepts of ‘Judicial Review and ‘Judicial Accountability’ are the two arms of our Judiciary with which it strikes out laws that threaten the integrity of the Constitution, which is the only rope holding together a country, in a state of anarchy, religious fanaticism, death, economic and poverty shambles. These concepts along with the Constitution prevent the law from turning into a rope of sand. That which is bought dearly must be dearly kept. The garden is a delicate structure, it needs care, and constant vigilance. Any amount of negligence can cause irreparable damage to the whole institution.
The procedure for impeachment, as the only method of accountability that the Constitution-makers created for the accountability of the Judges, states in Article 124 (4), ” a judge of Supreme Court shall not be removed from office except by an order of the president, after address to each house of the Parliament supported by a majority of not less than two-thirds of the members of that house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity”. By virtue of Article 128, Article 214 (4) applies to the Judges of High Court also. The expression misbehavior has not been defined in the Constitution. The case Of Justice V. Ramaswami, there is some criticism in public that May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in our country. A fortiori, although the motion for removal of Justice V.Ramaswami being passed unanimously by the members who voted, it failed, bringing to a close the more-than-two-year old proceedings for the removal of Ramaswami. Furthermore, the Case Of Justice Ashok Kumar, in the case of Justice Ashok Kumar, who was appointed an additional judge in April 2003, the Collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of adverse reports regarding his integrity. In our fifty-four years of judicial history the only actual impeachment process that took place was that of Justice V.Ramaswamy sitting judge of the Supreme Court, in which he was not impeached as members of the house abstained from voting. Ever since independence, no judge of High Court or Supreme Court has been removed from office.
Judicial power:- Judicial power is increasing primarily in four areas –
1. Judicial Review of Administrative Action;
2. Judicial Overview of the Constitutionality of Legislation;
3. Judicial Protection of Human Rights;
4. Judicial Protection of Minorities.
All of these four functions lead the courts into areas of government where Ministers and Legislators would prefer that they did not pry. Hence the accusations of judicial activism. In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liber alization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India. (1981) Supp. SCC 87. The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a le gitimate interest in questioning the executive’s policy of arbitrarily tran sferring High Court judges, which
threatened the independence of the judi ciary. Explaining the liberalization of the concept of locus standi , the court opined: “It must now be regarded as well- settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient re asons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or inju red, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.” In People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 , a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour. In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case, (1986) 2 SCC 176, where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen.

Judicial review:- In India the proper position of the Judiciary and its power of judicial review appears to be a via media between the American concept of judicial supremacy and the British system of Parliamentary sovereignty. As was held by American Supreme Court in Marbury.v. Madison in 1803, ” Constitution is what the Judges say it is”. We have developed principles like “fairness” and “legitimate expectation” to justify our probing, and they do not always like it. That however, is not to say that it is wrong. It does mean that we must be cautious and prudent when exercising that power, more particularly when it leads us to tell the government not just what not to do, but what they must do. We must be wary. We must be conscious of the danger of judicial activism in alienating the good will of the public and the executive. It is thus known that the Judiciary in India was endowed with the power of judicial review through which it was a watch dog on the Parliaments powers to make laws and to see that it is kept within the bounds of the Constitution.

Protection of the Constitution:- There is nothing more provoking to the legislature than the striking down by the courts of a legislative enactment on the grounds of unconstitutionality. It is not something we should do without profound thought. We must always be aware of the danger that, if pushed too far, the Executive can introduce a Constitutional Amendment to nullify our action. But fundamentally it is our duty rather than merely our power to do so, and we cannot shirk our responsibilities.

Protection of Human Rights:- Since 1948, the concept of Human Rights, and the concept of the duty of the Courts to protect these rights, if necessary against the power of the state, has expanded enormously. Most countries have a Bill of Rights entrenched in their Constitution. There is usually considerable scope for interpretation, and thus scope for judicial activism, in enforcing these rights. Over and above this, we introduce norms and conventions from International Conventions and Agreements, and concepts from other jurisdictions, giving the impression that we are subjecting our state authorities to external precepts. I remember once telling a meeting of American judges in Washington that there was a danger that the concept of Human Rights had been hi-jacked by the Radical left. I do not however think this is a significant problem for India. Here again, we lay ourselves open to accusations of judicial activism and of interfering with the functions of the other two branches of government. Our defence has to be that that is the very role which has been made for us. As the “braking mechanism” we play that role. You cannot apply the brakes without affecting the movement of the vehicle.

Protection of Minorities:- Democracies are not good at protecting minorities. Somebody once described democracy as – “A very bad system of government, which we use because we have not been able to find a better one.” One of the weaknesses of democracy is that it gives expression, inevitably, to the will of the majority, and may tend to trample on, or overlook, the rights of minority groups. We are the ones who must protect these minorities. It sometimes happens therefore, that we must go against the will of the majority. James Madison, in 1788, set out the problem in this way – “Wherever the real power in a government is, there is the danger of oppression. In our Government the real power is in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”

Financial Accountability to the Legislature: This is one of the most aspects to consider as to the subject matter. Sometimes a problem can arise over the budget of the judiciary, which of course has to be approved by the Treasury and incorporated in the Estimates of Expenditure. We cannot usually complain if we do not get everything we want. By the same token, we can legitimately complain if Government seeks to control our activities by putting a strangle-hold on our finances. There has to be a degree of give and take between judicial independence and judicial financial accountability. Different countries will find different ways of solving the problem if it should arise.

Judicial Accountability – The Way Forward
The problem of judicial accountability has been compounded by the Hon’ble Supreme Court of India in the Veeraswami case, in which it declared that no judge of the High Court or the Supreme Court could be subjected to even investigation in any Criminal offence of corruption or otherwise, unless one obtains the prior written consent of the Chief Justice of India. This has resulted in a situation whereby no sitting judge has been subjected to even investigation in the last 15 years since that judgement, despite public knowledge and complaints of widespread corruption in the judiciary. The police does not dare approach the Chief Justice for permission to investigate, unless they already have clincing evidence, which they cannot get unless they investigate. It is a classic catch 22 situation which the judiciary is obviously happy to live with. The recent years witnessed a vigorous debate about the working of our judiciary, including the higher judiciary. At one level, serious charges of corruption, nepotism and acquisition of assets disproportionate to known sources of income have been levelled against some members of the judiciary, raising concerns about the integrity and impartiality of our judicial system and processes. While these have undoubtedly damaged the high regard in which the judiciary is usually held, there is simultaneous appreciation that the judiciary is not only the last bastion for the citizen against state excess, arbitrary behaviour and apathy but also the ultimate guarantor and upholder of the Constitution and democracy. Many recent judgements of both the High Courts and the Supreme Court have enhanced the regard of the judiciary, paving the way for citizen-friendly legislation and protection of human rights. It is increasingly realized that the fearlessness of these judicial pronouncements is predicated on the constitutionally mandated judicial independence from the executive, which should in no instance be undermined. As was observed by the U.S. Supreme Court in Caperton v. A.T. Massey Coal, Co., Inc., in which a shared dissent of Chief Justice Roberts, Justices Scalia, Thomas, and Alito emphasizes that ‘ there is a ‗presumption of honesty and integrity in those serving as adjudicators.‘ All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise. We should not, even by inadvertence, impute to judges a lack of firmness, wisdom, or honor ‘.
The Judicial Accountability and Standards Bill – Basic Features of the Bill :- The Bill replaces the Judges (Inquiry) Act, 1968. It seeks to: (1) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (2) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (3) change the process of removal of judges, (4) enable minor disciplinary measures to be taken against judges, and (5) require the declaration of assets of judges.
Judicial Standards:- 1. The Bill requires judges to follow certain standards of conduct. Complaints against judges can be made on grounds of non-compliance with these standards or certain activities such as corruption, willful abuse of power or persistent failure to perform duties. 2. Some activities prohibited under the Bill are: (a) close association with individual members of the Bar who practise in the same court, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.
A Historic Constitutional Jurisprudence
During the trend of first fifteen years after independence, which was an era of strict and literal judicial interpretation was initiated by the Gopalan cases, there was no confrontation between the Judiciary and the Executive. In 1967, when the Constitutionality of the 17th Amendment was challenged in the Golaknath case, some confrontation was started between Judiciary and Executive. It is not out of scope of this article to discuss some landmark rulings of Indian Judiciary.

• In 1951, in the case State of Madras Vs. Smt. Champakam Dorairanjan, the Hon’ble Supreme Court of India held that caste based reservations as per Communal Award violates Article 15 (1). Yet, First constitutional amendment as to Art. 15 (4) was brought forward. In consequence of this Amendment, the ruling of Supreme Court was made invalid.
• Venkataramana Vs State of Madras,AIR 1951 SC 229, in this case, it was t held that “reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional”.
• General Manager, S. Rly v. Rangachari AIR 1962 SC 36 , in this case, the majority decision of the Supreme Court held that the power of reservation which is conferred on the State under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments, but also by providing for reservation of selection posts.
• M R Balaji v. State of Mysore AIR 1963 SC 649, in this case, it was held that the backwardness under Article 15 (4) must be social and educational. In M.R. Balaji v. State of Mysore 1963 (Suppl.) 1 SCR 439 at page 454 The Hon’ble Gajendragadkar. J observed that “economic backwardness might have contributed to social backwardness….” This observation tends to show that Gajendragadkar, J was of the view that economic backwardness may contribute to social backwardness. With respect to the learned Judge, I am unable to agree with his view.
• Chitralekha Vs State of Mysore,AIR 1964 SC 1823, The order of Govt making a classification of socially and educationally backward classes based on economic condition only was held to be justified.
• T. Devadasan v Union AIR 1964 SC 179. (It is to be noted that in Balaji’s case (AIR 1963 SC 649] and Devdasan’s case (1964) 4 SCR 680; (AIR 1964 SC 179) ‘the carry forward’ rule for backward classes far exceeded 50% and was struck down.)
• Jacob Mathew Vs State of Kerala, AIR 1964 Kerala 39, it was held that the classification of socially and educationally beackward classes based on the test of caste,community or religion was inconsistent with the requirements of Article 15 (4).
• Miss Laila Chacko Vs State of Kerala, AIR 1967 Kerala 124, the Hon’ble High Court held that while accepting the means cum caste test for classification of backward classes several factors hav e to be taken into consideration. Classification on the basis of the test of income was rejected.
• Chamaraja v Mysore AIR 1967 Mys 21 , it was observed that ”the guarantee given under Article 29(2) of the Constitution is a guarantee given to individual citizens. That guarantee is not given to any class. Article 15(4) of the Constitution empowers the State to make special provisions for the advancement of any Socially and Educationally Backward Class of citizens or for the Schedule Castes and Schedule Tribes. That Article does not compel the State Government to make any special provision for the advancement of the Classes, Castes, tribes mentioned therein. The State is empowered to make provisions in that regard. But it is not compelled to do so…”
• P. Rajendran Vs. State of Madras AIR 1968 SC 1012, In this case, the Hon’ble Supreme Court justified reservation of seats made caste wise.
• P.Sagar Vs State of AP, AIR 1968 AP 165, In this case, it was observed that Poverty, Caste, Place of habitation, Inferiority of occupation, low standard of education ,low standard of living are considerations for backwardness.
• Periakaruppan Vs State of Tamil Nadu, in this case, the Court held that a classification of the backward classes on the basis of caste is within the permissible limits of Article 15(4), if it is shown to be socially and educationallu backward.
• State of A.P. Vs U.S.V. Balram AIR 1972 SC 1372, In this ruling, following Rajendran and Periakaruppan cases, held that ‘ if a caste as whole was socially and educationally backward, the reservation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average”.
• Kesavanand Bharti v State of Kerala, AIR 1973 SC 1461: History may look upon Kesavananda Bharti’s case as the greatest contribution of the republic of India to Constitutional jurisprudence. The Hon’ble Chief Justice Sri Sary Mittra Sikri held that ”the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. Further held that ”fundamental rights conferred by Part III of the Constitution of Indian cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest.” The points urged in this famous case are that 1) Golaknath’s case was rightly decided and the Parliament should not have the right to abridge any fundamental right, having regard to Article 13 as it stood before the Amendment. The 24th Amendment, which made Article 13 subject to the provisions of Article 368, is invalid. 2) The whole Article 31C, which abrogates for certain purposes the fundamental rights, is invalid. 3) The Parliament cannot exercise its amending power to alter or destroy the basic structure of the Constitution so as to make the Constitution lose its identity, and the latter part of Article 31C which excluded judicial scrutiny is invalid.
• K.S.Jayasree Vs. State of Kerala AIR 1976 SC 2381 , The Hon’ble Supreme Court observed that in ascertaining the social backwardness of the class of citizens it might not be irrelevant to consider the caste of the group of citizens.
• Minerva Mills Ltd Vs Union (1980) 3 SCC 625 : AIR 1980 SC 1789, In this case, it was observed as : ” I would therefore declare Section 55 of the Constitution (Forty-second Amendment) Act, 1976 which inserted Sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament. But so far as Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned, I hold that, on the interpretation placed on the amended Article 31C by me, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and I would therefore declare the amended Article 31C to be constitutional and valid. ”
• Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246 , In this ruling, it was observed as under:: These forces nurtured the roots of our constitutional values among which must be found the fighting faith in a casteless society, not by obliterating the label but by advancement of the backward..”
• K. C. Vasant Kumar v. Karnataka, AIR 1985 SC 1495, in this ruling, the Court opines that the test of economic backwardness was the only criterion that can be realistically devised to determine social and educational backwardness. The Hon’ble Sri Chief Justice Chandrachud, further added that ” in regard to Schedule castes and Schedule Tribes (SCs & STs), the existing reservations should be continued without the application of means test upto 2000AD The Hon’ble Chinnappa Reddy, J in Vasanth Kumar points out that the social investigator “…may freely perceive those pursuing certain ‘lowly’ occupation as socially and educationally backward classes.
• Indira Sawhney & Ors v. Union of India AIR 1993 SC 477, the question that who are the other backward classes came up for consideration again in this case. Four distinct sets of views are discernible from this ruling. The Hon’ble Sri Justice Jeevan Reddy, held that reservation contemplated under Article 16(4) should not normally exceed 50%. However, certain extraordinary situations inherent in the great diversity of this country and people warrant the state to exceed 50%. ( To know more, see this ruling).
• Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645), Held:Every child/citizen has a tight to free education up to the age of 14 years and thereafter it is subject to limits of economic capacity and development of the State-State obliged to follow directions contained in Article 45-Article 21 to be construed in the light of Articles 41, 45 and 46.
• R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745, In this case,the Supreme Court observed: “When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservationfor the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general
• NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350, In this case also, it was observed that ”In Indra Sawhney (supra) it has been clearly held that the doctrine of principles of reservations have to be applied having regard to the vacancy position as existing in the entire area, the only exception being the cases,which would be falling under Article 16(4)”.
Mulling over all these judicial pronouncements, it is clearly known that from 1950-67, judicial decisions reflect more of judicial restrain than judicial activism. However, a history may look upon Kesavananda Bharti’s case as the greatest contribution of the republic of India to our Constitutional jurisprudence.

Conclusions And Suggestions:
1. Undoubtedly, Indian Judiciary is the most creditable organ of the government and Judges the high priests that occupy the pedestrial. A fortiori, a Judge like Caesar’s wife should be above suspicion, a Judge is looked upon as an embodiment of justice and thus the slightest suspicion on his professional or personal conduct may cast an ugly shadow on the whole institution.
2. Independence of the judiciary means independence from the Executive and the Legislature, but not independence from accountability. Therefore, The Committee on Judicial Accountability proposed that the Parliament amend the Contempt of Court Act 1971 to make it clear that any criticism of court however severe and imputation against the judge or Judiciary shall not constitute of contempt of court, unless the imputation are both baseless and malafide.
3. The judiciary’s Institutional Accountability lies primarily to the general public. The judiciary needs the support of the public and that support must be earned. The best way of earning that support is by making sure the public understands our decisions. The best way to account to the public is to explain to the public.
4. Judicial activism creates a certain demand for accountability, particularly from the Executive and the Legislators, which we cannot shrug off by reliance on judicial independence.
5. Particularly where we are entrusted with a creative as opposed to a purely protective role we must accept a greater degree of accountability. This will arise usually in four sets of circumstances – (a) Judicial Review of Administrative Action; (b) Protection of the Constitution; (c) Human Rights cases; (d) Protection of Minority Rights.
6. It is a fundamental principle that every institution must be accountable to an authority which is independent of that institution. Yet somehow, the judiciary propogated a view that the judiciary can only be accountable to itself.
7. It is true that no public institution can survive in a democratic set up unless it retains public confidence. Judiciary is no exception to it. It, therefore, becomes the primary responsibility of the members of the District judiciary to plan their working and behaviour inside and outside the court room so as to enable them to hold the public expectations of fair, impartial and speedy justice from them. Not only introspection but learning of the codes of ethics is necessary for them.
8. The concepts of ‘Judicial Review and ‘Judicial Accountability’ are the two arms of our Judiciary with which it strikes out laws that threaten the integrity of the Constitution, which is the only rope holding together a country, in a state of anarchy, religious fanaticism, death, economic and poverty shambles. These concepts along with the Constitution prevent the law from turning into a rope of sand. That which is bought dearly must be dearly kept.
9. The garden of Judiciary is a delicate structure, it needs care, and constant vigilance. Any amount of negligence can cause irreparable damage to the whole institution.
10. To cap it all, the Hon’ble Supreme Court has by an amazingly creative interpretation of the Constitution taken over the power of appointing judges in its own hands. The words “appointed by the government in consultation with the Chief Justice” in the Constitution were interpreted as “appointed by the government on the advice of the Chief Justice”! Thus, the judiciary has effectively become a law unto itself, unaccountable to any one by declaring itself as sui generis. I conclude, with profound sense of hope, that Judicial accountability is successfully forwarded through the internal mechanisms of the judiciary.

By – Author Y.Srinivasa Rao, Judge

“Pendency for long periods operates as an engine of oppression,” — The Hon’ble Supreme Court

‘’ Denial of speedy trial may with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial.’’ —The Hon’ble Justice Chinnappa Reddy.

‘’Mounting of arrears of cases in courts, particularly in High Courts and District Courts, has been a cause of great concern for litigants as well as for the State. It is a fundamental right of every citizen to get speedy justice and speedy trial which also is the fundamental requirement of good judicial administration.’’— The Law Commission of Inida

The right to a speedy trial is an ancient liberty. It is important to remember that during the reign of henry ii (1154–1189), the English Crown promulgated the Assize of Clarendon, a legal code comprised of 22 articles, one of which promised speedy justice to all litigants. The Magna Charta, in 1215, prohibited the king from delaying justice to any person in the realm. Several of the charters of the American colonies protected the right to a speedy trial, as did most of the constitutions of the original 13 states. Ultimately, In U.S. in 1974, Congress enacted the Speedy Trial Act (18 U.S.C.A. §§ 3161 et seq.). Yet, In India, nevertheless increasing numbers of accused were jumping bail while free during extended pretrial release, there is no such Act in India, however, the Hon’ble Supreme Court held that right to speedy trial is neither a fact nor fiction but a “Constitutional reality”. What is wrong if ‘ Speedy trial Act’ is enacted in India? In a landmark ruling , with profound implication, the Hon’ble Supreme Court reiterated that just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to life and liberty (Article 21) is one of the part of fundamental rights which recognizes right to speedy trial. Many people in our country who spend their precious time and money in prisons and courts for seeking justice for years together . It is detrimental to the economic, social and cultural development of the country like India. There is no paucity to say that the Judiciary as a whole enjoy a higher degree of trust than other branches of the government.

The Judicial Response In Indian On ‘Speedy Trial’ :
“It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.” “… no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a session trial … we fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without trial.” ( The Hon’ble Supreme Court in Kadra Pehadiya vs. State of Bihar – 1981 Cr.L.J. 481)

In ‘’Abdul Rehman Antulay Etc. Etc. vs R.S. Nayak And Another Etc. Etc’’, it was observed that ‘’Right to speedy trial is not enumerated as one of the fundamental rights in the Constitution of India, unlike the Sixth Amendment to the U.S.Constitution which expressly recognises this right The Sixth Amendment declares inter alia that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial’. This is in addition to the Fifth Amendment which inter alia declares that “no person shall….be deprived of life”, which corresponds broadly to Article 21 (and Clause 1 of Article 31, since deleted).

This omission and the holding in A.K. Gopalan v. State of Madras probably explains why this right was not claimed or recognised as a fundamental right flowing from Article 21 so long as Gopalan held the field. Once Gopalan was over-ruled in R.C. Cooper (1970 S.C. 564) and its principle extended to Article 21 in Maneka Gandhi (1978 S.C. 597) Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. While this is not the place to enumerate all those decisions, it is sufficient to say that the opinions of this Court in Hussainara Khatoon cases decided in the year 1979, declaring that right to speedy trial is implicit in Article 21 and thus constitutes a fundamental right of every person accused of a crime, is one among them.

In Gopalan, this Court held that the law relating to preventive detention is to be found in Article 22 of the Constitution and thatArticle 22 is a self-contained code in that behalf. It was also observed that the law contemplated by Article 21 need not answer the test of reasonableness in Article 19 since both the articles (21 and 19) constitute two different streams.

In Maneka Gandhi case, the observations in Gopalan with respect to Articles 21 and 19 constituting two different streams have been held to be either obiter dicta or wrong, as the case may be. It is pointed out that over the years this Court has accepted the view that the Constitution and in particular the several fundamental rights guaranteed by part Ill-should be read as an integral whole, with possible over-lappings of the subject-matter of what is sought to be protected by its various provisions.

His lordship Beg, The Hon’ble Chief Justice expressed the idea in the following words at page 648 of [1978] 2 S.C.R.: Article dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which ourConstitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.

The Hon’ble Justice Bhagwati, put the same idea in the following words : The law must, therefore, now be taken to be well settled that Article 21 does not excludeArticle 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21 such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.

This proposition can no longer be disputed after the decisions in R.C. Cooper’s case, Shambhu Nath Sarkar’s case and Haradhan Sahai’s case. Now, if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning ofArticle 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article14.

The Hon’ble Judge pointed out the integral connection between Articles 14 and 21 in the following words : Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement ofArticle 21 would not be satisfied.

This decision does establish in unmistakable terms that the law and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Articles 19 and 14. It establishes that the procedure prescribed by law within the meaning of Article 21 must be right and just and fair and not arbitrary, fanciful or oppressive. It is this principle of fairness and reasonableness which was construed as taking within its purview the right to speedy trial.

In the first Hussainara Khatoon decision the Hon’ble Justice Bhagwati, observed as follows : We think that even under ourConstitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content ofArticle 21 as interpreted by this Court in Maneka Gandhi v. Union of India. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the requirement of that Articlethat some semblance of a procedure should be prescribed by law, but that the procedure should be “reasonable, fair and just”. If a person is deprived of his liberty under a procedure which is not “reasonable, fair or just”, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his relief. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be “reasonable fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right of life and liberty enshrined in Article 21.

The Hon’ble Judge, however, posed a question which be left it to be answered at a later stage. The question posed was : What is the consequence of denial of this right? Does it necessarily entail the consequence of quashing of charges/trial? That question we shall consider separately but what is of significance is, this decision does establish the following propositions : (1) Right to speedy trial is implicit in the broad sweep and content of Article 21. (2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under trials. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under trial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how must worse could it be when the delay is as long as 3 or 5 or 7 or 10 years. Speedy trial is of the sense of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. In the second Hussainara Khatoon case , this Court directed that the under-trial prisoners against whom charge-sheet has not been filed by the police within the period of limitation provided for in Section 468 cannot be proceeded against at all and released them forthwith. The reason being that any further detention of such persons would have been unlawful and violative of fundamental right enshrined in Article 21.

In third Hussainara Khatoon case , his lordship Bhagwati, J. observed : The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial.

In State of Bihar v. Uma Shankar Ketriwal and Ors[4]. The Hon’ble Supreme Court observed : We cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by. Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter, we do not consider the present case a proper one for our interference inspite of the fact that we feel that the allegations disclose the commission of an offence which we regard as quite serious.

In Khadra Paharia v. State of Bihar , the Hon’ble Supreme Court re-affirmed the principle of Hussainara Khatoon case and declared that :….any accused who is denied this right of speedy trial is entitled to approach this Court for the purpose of enforcing such right and this Court in discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused….The Court also gave necessary directions to the Government of Bihar and High Court including a direction to create additional courts for speedy disposal of cases pending since long.

The Hon’ble Supreme Court considered the applicability of this right again in State of Maharashtra v. Champalal Punjaji Shah . in this ruling , it was observed : In deciding the question whether there has been a denial of the right to a speedy trial the court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The Court is also entitled to take into consideration whether the delay was unintentional, caused by over-crowding of the court’s docket or under-staffing of the Prosecutors. In the course of his lordship judgment, Chinnappa Reddy, J., noted that “delay is a known defence tactic” and also that where the prosecution has a weak case, it may resort to same tactic with a view to keep the prosecution pending as long as possible. His lordship observed : Denial of speedy trial may with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial.’’

In T.V. Vatheeswaran v. State of Tamil Nadu , this Court again reiterated the significance of the right to speedy trial and extended it even to post-conviction stage. It was held that undue delay in carrying out the death sentence entitles the accused to ask for lesser sentence of life imprisonment. This opinion is based upon the immense psycological, emotional and mental torture a man condemned to death suffers. Though this decision was over-ruled later by a Constitution Bench, it is relevant to the limited extent it re-affirms the right to speedy trial enunciated in Hussain Ara Khatoon. ’’

In Sheela Barse and Ors. v. Union of India and Ors. , a Division Bench. re-affirmed that the “right to speedy trial is a fundamental right implicit in Article 21 of theConstitution” and observed “the consequence of violation of fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.” Thus, the court answered the question which Bhagwati, J. had posed in the first Hussain Ara case. Accordingly, they directed that so far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, a period of three months from the date of filing of complaint or lodging of the F.I.R. shall be deemed to be the maximum time permissible for investigation and a period of six months from the filing of the charge-sheet as the reasonable period within which the trial should be completed. It was specifically directed that if these time limits are not obeyed, the prosecution against the child should be quashed.

The Hon’ble Supreme Court in Raghubir Singh and Ors. v. State of Bihar . In this case, Wingo Singh Mann and few others applied to this Court for bail and also for quashing the proceedings pending against them before the Special Judge on the ground of violation of right to speedy trial. The Hon’ble Supreme In Rakesh Saxena v. State through. C.B.I. , quashed the proceedings on the ground that any further continuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank is uncalled for, particularly in view of the complicated nature of the offence charged.

In Srinivas Gopal v. Union Territory of Arunachal Pradesh, (Now State), the court quashed the proceedings against the appellant on the ground of delay in investigation and commencement of trial. In this case, investigation commenced in November, 1976 and the case was registered on completion of the investigation in September, 1977. Cognizance was taken by the court in March, 1986. These facts were held sufficient to quash the proceedings particularly when the offence charged was a minor one namely, Section 304A read with 338 of the Indian Penal Code.

In T.J. Stephen and Ors. v. Parle Bottling Co. (P) Ltd. and Ors. it was held that though the order of the High Court quashing charges against the accused (Under Section 5 of the Imports and Exports (Control) Act, 1947) was unsustainable in law it would not be in the interest of justice to allow prosecution to start and trial to be proceeded with after a lapse of twenty years even though one of the accused was himself responsible for most of the delay caused by his mala fide tactics. In this decision, there is no reference either toArticle 21 or to the right to speedy trial. The order is merely based on the fact that it would not be in the interest of justice to allow a prosecution and trial to recommence after a lapse of 20 years. In Diwan Naubat Rai and Ors. v. State through Delhi Administration and Anr. , the court refused to quash the proceedings inasmuch as it was found that the accused himself was mainly responsible for the delay of which he was complaining.

In State of Andhra Pradesh v. P.V. Pavithran , The Hon’ble Supreme Court upheld the decision of the Hon’ble High Court quashing the F.I.R. on the ground of inordinate delay in completing the investigation. The respondent was an I.P.S. Officer against whom an offence under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act was registered in March, 1984. He was placed under suspension but then it was revoked in September, 1984 and he was reinstated in service. In July, 1985, the government cancelled its earlier order and called upon the respondent to show cause why he should not be retired from service. The respondent challenged the said notice before the Central Administrative Tribunal which was upheld. The Special Leave Petition presented to this Court was dismissed in view of the fact that respondent had already retired from service on attaining the age of superannuation. After all this, the Anti-corruption Bureau re-started the criminal proceedings in 1987-88 whereupon the respondent approached the High Court for quashing the said proceedings on the ground of delay. The High Court quashed the same accepting the ground urged. The Hon’ble Supreme court court affirmed. Of course, while doing so, it took care to observe that while examining the plea of delay in completing the investigation, the court should have regard to all the relevant circumstances and that it is not possible to formulate any inflexible guidelines or rigid principles of uniform application for speedy investigation nor is it possible to stipulate any arbitrary period of limitation for completing the investigation.

In Machander v. State of Hyderabad , The Hon’ble Supreme Court observed that while it is incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The scales, the court observed, must be held even between the prosecution and the accused. In the facts of that case, the court refused to order trial on account of the time already spent and other relevant circumstances of that case.

In Veerbhadra v. Ramaswamy Naickar, The Hon’ble Supreme Court refused to send back proceedings on the ground that already a period of five years has elapsed and it would not be just and proper in the circumstances of the case to continue the proceedings after such a lapse of time. Similarly, in Chajju Ram v. Radhey Sham, the court refused to direct a re-trial after a period of 10 years having regard to the facts and circumstances of the case.

In State of U.P. v. Kapil Deo Shukla , though the court found the acquittal of the accused unsustainable, it refused to order a remand or direct a trial after a lapse of 20 years. It is, thus, clear that even apart from Article 21 courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or whore the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders.

The Privy Council emphasised the necessity of taking notice of the delays inherent in a particular system. The Privy Council was dealing with a case from Jamaica. The Court of Appeals of Jamaica held that having regard to the circumstances obtaining in that country, a delay of 32 months cannot be said to infringe the constitutional right of an accused to speedy trial. The Privy Council observed that this opinion of the Jamaican court, which must be deemed to be acquainted with the conditions in that country, must be accepted. But, inasmuch as, it was a case of re-trial, the Privy Council held that the said delay must be held to have infringed the said right. The Board emphasised that a re-trial must be held with greater speed and that the delay which may be ignored in the case trial may not be ignored in the case of re-trial.

Suggestions For Enactment Of The Speedy Trial Act:
1. In India, there must be a ‘ THE SPEEDY TRIAL ACT’ like in United States Of America. That too, after enactment of ‘Speedy trial Act’, it should apply to the both citizens and non-citizens alike.

2. The 221st Report of the Law Commission of India shall be considered.

3. As there is no ‘ The Speedy Trial Act’ in India, criminal justice has not always moved swiftly in India. Therefore, The Speedy trial Act’’ is urgently needed.

4. The word ‘Speedy Trial’ should be inserted in Indian Constitution as one of the fundamental rights.

5. Longer delays may be permitted to accommodate the schedules of important witnesses, and to allow the prosecution to prepare for a complex case. However, with certain conditions.

6. Longer delays may be tolerated when an accused is dilatory in asserting the right to a speedy trial.

7. Accused shall assert his right in a timely motion before the trial court. If the accused fails to assert the right in this manner or acquiesces in the face of protracted pretrial delays, accused may not raise the issue for the first time on appeal, unless the accused’s failure to raise the issue earlier was due to her/his advocate’s Negligence.

8. Accused who delays prosecution by inundating the trial court with frivolous pretrial motions are also treated as having forfeited his right to a speedy trial. The law does not allow accused to profit from his/her own wrong.

9. ‘’The Speedy Trial Act’’ shall apply to post-trial criminal proceedings, such as Parole and Probation hearings.

10. The Speedy Trial Act in India shall authorize courts to dismiss charges that have not been brought within a reasonable amount of time following arrest or indictment.

11. Delays attributable to prosecutorial misconduct, such as the deliberate attempt by the government to delay a proceeding and hamper the defense, will run afoul of the Speedy Trial Act. Therefore , certain precautions must be taken.

12. Prosecutorial or court staff negligence, such as misplacing accused’s file or losing incriminating evidence, may also considered an inappropriate reason for delay. However, strict punishment for the prosecutorial and court staff shall be given in case of such circumstances are arisen.

13. Inasmuch as the police usually fail to produce witnesses, accused promptly , a separate cadre of investigation agency enjoined with the responsibility of production of witness, production of accused and assisting the prosecuting agency will help a lot for speedy trial.

14. There is lack of coordination between the investigating agency and the prosecuting agency. This must be rectified.

15. When parties come to court, with agreement, seeking compromise in cases of compoundable offences , the proceedings must be ended by recording the compromise without any delay.

16. The Cr.P.C. should empower the investigating officer to compound offences which are compoundable.

17. Unfortnately, we are not mulling over about the concept of plea bargaining. It should be applied in offences which impose punishment of imprisonment of less than seven years and/or fine including the offences covered by section 320 of Criminal Procedure Code, 1973.

18. It has been said that a law court is not a cathedral but a casino where much depends on the throw of dice, but we should not brush aside the view that law is the end-product of technicalities.

19. The following steps are immediately to be needed in the branch of criminal law, these are (1) delay should be avoided, (2) simplicity of procedure, (3) fair deal to the poorer sections of society and of course a fair trial in every case according to the principles of natural justice.

20. The Speedy Trial Act in India is needed to serve two purposes. Firstly, to prevent accused from languishing in jail for an indefinite period before trial. Pre-trial incarceration is a deprivation of liberty no less serious than post-conviction imprisonment. In some cases pretrial incarceration may be more serious because public scrutiny is often heightened, employment is commonly interrupted, financial resources are diminished, family relations are strained, and innocent persons are forced to suffer prolonged injury to reputation. Secondly, to ensure an accused’s right to a fair trial. The longer the commencement of trial is postponed, the more likely it is that witnesses will disappear, memories will fade, and evidence will be lost or destroyed. Of course, both the prosecution and the defense are threatened by these dangers, but only the accused’s life, liberty, and property are at stake in a criminal proceeding.