A solution to the problem of judicial pendency, posed by the law minister – don’t mechanically arrest a suspec

Source: The post is based on the article “A solution to the problem of judicial pendency, posed by the law minister – don’t mechanically arrest a suspect” published in the Indian Express on 23rd November.

Syllabus: GS 2- Structure, organization and functioning of the Executive and the Judiciary.

Relevance: About restricting bail pleas to trial courts alone.

News: Recently, the Union Law Minister suggested that the large number of bail pleas being filed add to the pendency in the country’s courts. To address that he suggested that these pleas should only be heard by trial courts, and should not be allowed to go to even the high courts.

About the bail pleas and pendency in India

The Chief Justice of India said that the higher judiciary is getting flooded with bail matters because of the reluctance of the district courts to grant bail.

According to the State of the Indian Judiciary Report published in 2019, a) On average, at the district court level, a case remains pending for five years or more, b) If the losing side goes up in appeal, then the average time for the case to be settled may go up to 13 years.

Read more: Pandemic blues: Lower court pendency at record 4cr nowX
What are the concerns associated with restricting bail pleas to trial courts alone?

a) It does not do anything to the pendency at the district court level, b) The law in India permits the police to arrest a person on “reasonable suspicion” of him having committed an offence. The ease with which people of India are arrested and restricting them to trial court alone for bail will violate the fundamental right to personal liberty., c) It will hamper the right to access justice, and d) Typically a criminal trial could take anything between 5-10 years in India. For under-trials, the only remedy is to keep filing bail applications. By limiting the bail pleas to trial court alone, a person might spend up to 10 years in prison despite being innocent of the crime.

Read more: Pendency of Cases of Constitutional Importance – Explained, pointwise
What needs to be done to reduce the pendency of cases?

Need to review government litigation: This is because the government is the biggest litigant in the courts. The various departments of the central and state governments are a party in 46 paper cent of all cases.

There is a serious need to review the excessive cases that are forced into the system by investigating agencies which led to unmerited arrests.

Restrict the custodial remands: As a principle of law, the “arrest” or remand of an accused should take place at the end of the investigative process, when the police are ready to confront the accused with evidence gathered and formally charge him immediately thereafter.

But in India, the purpose of “arrest” is not to ensure appearance at trial, but as to “aid investigation”. Most common law jurisdictions allow only between 12 hours to four days of pre-charge detention. But in India, a suspect may be kept in custody for up to 90 days before the police formally charge her. This should change.

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