Why Bhartiya Nagrik Suraksha Sanhita's Ambitious Timelines to Dispense Justice Won't Work

In cases involving children, when ascertaining the age of a child who has no documents, the child’s teeth are usually examined by an orthodontist. What happens, however, when the entire district has only one orthodontist? In the experience of one of the several lawyers we interviewed for this article, the answer was: delay.

The government, recognising delay as a persisting companion to Indian criminal justice, has enacted the new criminal codes with the promise of justice within three years. To this effect, the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS), the successor to the Code of Criminal Procedure, has created several new timelines to limit different steps of the procedure to justice. An elaborate account of these timelines can be found here. A brief excerpt is reproduced below.

But resetting timelines will not always lead to a flashpoint if one does not address other causes of delay. This is not the first time that timelines have been reset. Special laws introduced in the last few decades created new timelines with the promise of faster delivery of justice.

Grounded in interactions with several practising lawyers at the grassroots, hence, we look at the track record of some of these special laws. We identify the hurdles they encountered in implementing swift justice. We do this to argue that it might not be realistic to pin our hopes on the mere resetting of timelines to dispense swift justice. A plan, if any, in addressing various causes for delay, is not clearly present yet in the enacted Codes.

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What really causes delay? Protection of Children from Sexual Offences Act, 2012 

The case of the unavailable orthodontist mentioned above produced a delay because securing the presence of the sole person in the entire district is naturally difficult. Parties here had to travel to the neighbouring district to obtain an orthodontist’s service, which causes delay, in addition to incurring extra costs.

A similar instance took place in a municipality in Chhattisgarh, yet again in a POCSO case. This case involved a child who was mentally disabled. In such cases, a special educator is needed to record the testimony of the child. There existed, as it happened, no such educator in that district.

POCSO was designed to create a child-friendly judicial process. Section 35 mandates that the evidence of a child survivor must be recorded within 30 days and the trial must be completed within one year, both from the date of taking cognisance. A study has found, however, that on average, it takes almost one year and five months for a case to be disposed of. Only two states adhere to this timeline presently. On average, between 2016 and 2020, only 47.69% of cases were decided within one year. An average of 183.41 days are spent on the evidence stage and 68.21 days on the charge stage.

Securing the presence of witnesses, experts and parties delayed 16,621 criminal cases in the last year. In a POCSO case, the Investigating Officer (IO), the doctor, and the witnesses were required to appear in court but consistently failed to do so. This was because the IO was transferred, the doctor had an accident, and another witness was preoccupied with an impending retirement. Six years have passed since then, and the victim, who was 17 at the time, is now married and no longer a minor. The case is still ongoing, and this highlights how transfers and personal circumstances of officials can severely impede the judicial process.

But, witnesses and experts are not the only resources in limited availability. A rigidity of norms and a lack of infrastructure produces further delays. An insufficient number of Special Courts dedicated to POCSO cases leads to an overwhelming backlog. A lawyer we interviewed, told us how, in a certain district, a POCSO Special Court building had been fully constructed. Despite this, it remained locked for almost seven months, because a High Court judge could not be arranged to arrive and inaugurate the new court. This means that POCSO cases in that entire region remained on hold for the duration of seven months. This was neither due to lack of infrastructure, nor personnel, but a mere insistence on the presence of a High Court judge to inaugurate it, which is not always easy to secure.

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Protection of Women from Domestic Violence Act, 2005

The rigidity of norms combines with the problem of frequent transfers to create more delay. In a certain case of domestic violence, the judge had called for a Protection Officer’s report before giving an order. Section 12 of the Act, the “heart and soul of the Act” requires the Magistrate to dispose of the case within sixty days from the date of the first hearing.

The Supreme Court has clarified that no Protection Officer report is needed before passing orders. The practice has, however, continued. Typically, it takes about a month for a Protection Officer’s report to arrive following the court’s notice. In this case, complications arose when the Registrar was transferred, and the new Registrar incorrectly noted that the report was attached, even though it had not arrived. This led to a significant delay in the case. A 2017 study found the pendency rate to be 83%.

The office of the Protection Officer (PO) is not one without controversy. The law, in prescribing the PO envisioned someone who could be a first point of contact between the survivor and the police. Experience has taught that this does not happen as envisioned, and only causes delay. It has been written that they lack sensitivity and defer endlessly unless a lawyer is involved. Disregarding that, POs are themselves overburdened. They are either given secondary responsibilities, or their officers are combined with another as an additional charge.

In Gujarat, the Protection Officer is either the District Social Defence Officer or a Dowry Prohibition-cum-Protection Officer. Lack of appointments was so frequent, with these officers lacking basic facilities and work environment to perform their job, and not receiving salaries on time, that the Gujarat High Court had to intervene through a suo moto PIL.

The entire city of Ahmedabad, which at the time received 800 applications in seven months, was found to have only one functional PO, which the Court noted to be a “mockery of the Act.” The state was ordered to create a proper mechanism for recruitment along with guidelines. Interestingly, this order was in turn only enforced after subsequent warnings by the Court.

Illustration: Pariplab Chakraborty

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The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”)

The SC/ST Act is aimed at eliminating discrimination and atrocities against Scheduled Castes (SC) and Scheduled Tribes (ST) people. Section 14(3) provides two months from the filing of the chargesheet as the time available for completing the trial. In 2021, in 96.01% of cases, forming a total of 2,05,985 cases, this did not happen, since they were left pending before the courts. Roughly 25% of cases before the police, i.e., 19,074 cases were pending with them. Between 2017- 2021, pending cases in courts have increased by 68% from 176,067 to 295,115.

Special Courts and Exclusive Special Courts are further required under Section 14. Out of 751 districts, only 487 have a Special Court. The absence of these Courts reduces the ability of the judiciary to dispose of cases, causing delays in providing relief up to Rs. 738 crore – Rs. 3000 crore to victims.  The Act requires a Special Public Prosecutor (SPP) and an Exclusive SPP. Only 370 SPPs and 145 Exclusive SPPs are there for 487 Special Courts and 176 Exclusive Special Courts respectively. Pendency is hence, expected to increase further, based on past trends.

Social norms cause delays as well. In a study of 50 cases of atrocities, complainants faced difficulties in getting a complaint filed in 22 cases, with delays ranging from half a day to three months. Medical examinations get delayed by this, reducing the possibility of obtaining evidence, which is disproportionately relied on by the judiciary in rape cases.

Other causes of delays include intimidation by police, lack of sensitivity and interference by the accused due to delay in chargesheet filing leading to bail. Chargesheets are further filed after 60 days in nearly 46.8% of atrocities cases registered between 2016 and 2020. The average time taken to file a chargesheet was 100 days or 3.5 months. Crimes against SC/STs are deliberately underreported or declared false.

Juvenile Justice (Care and Protection of Children) Act, 2015 

Section 14 of The JJ Act sets four months as the time period for the Juvenile Justice Board to hold an inquiry involving a child in conflict with the law, following which the subsequent proceedings occur. Appeals against the decisions of the Board are ordinarily 30 days. The Supreme Court has noted that in cases of appeals in heinous offences, no timeline had been prescribed, and read in a 30 day timeline for this as well.

The Court noted that lack of transparency in such bodies leads to delays. The practice has been that officials in such quasi-judicial bodies leave out key details like their names on the order, which causes delays in later proceedings when these details have to be traced out. The Board also does not sit regularly, which contributes to a significant backlog of cases.

The Bombay High Court had recently raised concerns over the 40,051 cases pending before the Juvenile Justice Board (JJB) and the Child Welfare Committee (CWC) emphasising that such delays nullify the spirit of the Juvenile Justice Act. Adjournment is another source of delay, for which the Supreme Court recommended that the party seeking adjournment should be mentioned so that later, if undue delay is caused, penalties can be imposed.

‘Gotta go fast’: The fast track courts (FTCs)

The State has already once endeavoured to tap into the Speed Force through Fast Track Courts (FTCs), which were established to expedite the disposal of serious criminal cases, including those related to sexual offences and corruption. These courts are intended to conclude trials within six months to a year. FTCs face significant challenges in meeting their timelines.

A study found that despite the release of funds to build FTCs, over 14 states and Union territories do not have any FTCs. The Law Ministry estimates a lack of about 1,023 FTCs across the country. Several states have also rejected the idea of FTCs itself. The Department of Justice itself has noted the pending cases under FTCs especially created for POCSO and identified reasons for the same.

The government have been stated to be the largest litigant. Since government cases are not as easily settled as private cases, trial durations are extended. Transfer of judges disrupts the continuity of proceedings and delays in obtaining responses from understaffed forensic laboratories contribute as well. The judge-to-population ratio in India is “among the lowest in the world”, as per the Chief Justice of India.

‘Run, Barry, Run’: The race against time

A brief overview of the above tells us inter alia the reasons for the delay: lack of infrastructure, personnel, appointments, transfers, social norms, opacity and unaccountability. Naturally, any law cannot be expected to solve, or even address each of these. But in the absence of provisions that address any of these, timely justice either remains unlikely, or the entire criminal justice system has been put in a race against time. How will a judgment be pronounced within 45 days if trials go on for years? How will adjournments be limited to two, with no mechanism to do so?

The progress that the parliament is attempting to create through new timelines in the Codes is laudable. What we have tried to show is that previous attempts at creating new timelines have not been without obstacles. The innovations needed are so needed not just at the highest level of broad timelines, but at the ground level of routine realities like transfers, availability and sensitivity. In the absence of these, judging by the record of past attempts through special legislations and innovations like FTCs, the BNSS timelines may end up proving to be unrealistic.

For them to not be unrealistic, however, is entirely possible. The guidelines and directions mentioned above already exist. However, the BNSS presently does not provide a strategy for addressing the concerns highlighted above. While it incorporates many judgments and guidelines from the past to improve the previous laws, presently, it does not provide measures to address how delays caused by transfers, opacity, lack of workforce, securing the presence of witnesses or adjournments can be resolved.

Presently, no strategy is apparent on how the new timelines will be met. It is hoped that the parliament or the relevant ministries and state bodies, through amendments, rules and notifications, create methods to enforce the new timelines so that justice can actually be dispensed in the timeliness that the BNSS envisions.