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LAW REFORM

Fair and speedy trial under the Constitution

Md Nur Islam
The notion of "fair and speedy" trial is a constitutional obligation. These two terms have greatly been emphasised by our Constitution, the supreme law of the land. If the court of law, tribunal and the sitting of justice are not fair, impartial and independent, then the whole process in relation to administration of justice becomes a mockery, farce and a means of infliction of injustice through the means of justice. Simultaneously, if the trial system is not speedy as required and expected to expeditious delivery of justice then it also leave the justice seeking people backward and easily oppressed. In all fairness, the judges should be of judi-caring mind by applying the strong sense of judiciality while administering justice, something which goes beyond the domain oflaw must be avoided.
Components of fairtrial
Components which can be enumerated in respect of fair trial are as follows: The trial system must be free, impartial and independent, It should be open and public; the parties must be subject to the same kind of law; The right to self defence has to be ensured; No enactment of law after commission of crime i.e. no ex-post-facto legislation.
Generally, every court of justice is to remain open to all citizens as publicity is the authentic hall-mark of judicial process as distinct from administrative procedure. Article 35 (3) of the Constitution stresses 'public trial' by an independent and impartial court or tribunal. The essence of the same is to provide a fair trial. Section 352 of the Criminal Procedure Code (CrPC) provides for public trial. In fact, section 352 of the CrPC confers a discretion on the court to restrict admission or hold the trial in the jail premises if the necessity arises.
In the American jurisdiction, an accused has the right guaranteed by the sixth amendment to remain present at the trial (Faretta vs Californica, 422 US 806). The requirement of public hearing in a court of law for a fair trial is, however, subject to the need of the proceeding being held in camera to the extent necessary in the public interest and to avoid prejudice to the accused. In our country, the Family Courts Ordinance, 1985 provides for provision of camera trial in respect of some matters. In a case, where reasonable apprehension of bias of the trial judge or magistrate arises, the provision of transfer of cases has been incorporated into the Cr. P.C. just to make the trial fair.
Speedy trial
Though an accused is guaranteed a speedy trial, it is difficult to set down the notion for time limit for trial in all cases. Delay in our country is systematic and profound. Expeditious trial and freedom from detention are part of human rights and basic freedom and a judicial system which allows incarceration of individuals for long periods without trial must be held to be denying human rights to such under trials prisoners.
In respect of speedy trial in A. R Antulay VRS Nayak, the Indian Supreme Court laid down some propositions considering a large number of decisions:
Right to speedy trial is the right of accused. The fact that speedy trial is also in the public interest does not make it any-the less the right of the accused; the right encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial; the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction. The worry, anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation and inquiry or trial should be minimal; Often the accused is interested in delaying the proceedings.
Therefore, when a complaint of violation of the right to speedy trial is made, the first thing to be asked is who is responsible for the delay; while determining whether undue delay has occurred resulting in violation of the right to speedy trial regard must be had to all the attendant circumstance, including the nature of the offence, number of accused and witnesses, the work load of the court concerned, prevailing local conditions and so on; Inordinate delay may be taken as a proof of prejudice.
In this context the fact of incarceration of the accused will be a relevant fact; An accused's plea of denial of the right to speedy trial can not be defeated by saying that he did not at any time demand a speedy trial; It is neither advisable nor practicable to fix any timelimit for trial of offences and it is for the court to balance and weigh the several factors to determine in each case whether the right to speedy trial has been denied; Once the right to speedy trial is found to have been infringed, generally the charge or the conviction shall be quashed. In such a case, it is open to the court to make such other appropriate order as may be deemed just and equitable in the circumstances of the case.
Recent developments
A slow-moving justice system cannot be an effective tool in the fight against crime. In this respect, a good number of speedy trial courts throughout the country have been set up to combat the prevailing situation and the idea of setting up the courts like speedy trial courts can be said to have been based on a correct assessment of our ground reality. In the meantime this type of court has gained a tremendous success with disposal of highly sensational cases. The pattern of speedy trail and deterrent punishment needs to be taken forward.
Concluding remarks
The prime objective of the judiciary/judicial institution is to ensure fair and speedy trial within shortest possible time so that the justice seeking people can get justice expeditiously. The judicial process must posses the genius to do social justice and the judiciary can not be oblivious of this constitutional norm. No man hopes to succeed in a bad cause unless he has reason to believe that it would be determined according to bad laws or by bad judges. Only just decision can prevent unjust cause and restore people's confidence in the justice delivery system. But the norms of fair and speedy trial are the condition precedents. Md Nur Islam isAssistant Judge, Rajshahi.