Book review
India’s legal system: Can it be saved?
Introduction-
This book talks about how Indian legal system has evolved from ancient time to
modern time incorporating the colonial time of Britishers, how different charters were
formulated to provide justice and proper administration of colony, these charters later
helped in developing law in contemporary India.
Content-
The first part of book talks about that “Societies in ancient India were governed by
moral law”. He says that in ancient India the principal source of law were the Smritis,
it means that which was remembered: the recollection was made by rishis, the rishis
known as Smritikars compiled the smrities at different times and at different parts of
the vast territory called “Bharat”. The smrities were also known as “Dharmashastras”
a compendium of principles for the regulation of human conduct, there were large
number of smrities but the principal smrities were 3 in number: MANUSMRITI
(compiled between 200 BC and AD 100 ), YAJNAVALKAYA(compiled between
AD 200 and AD 300),NARADA(compiled around AD 200).
MANU code is divided in 12 chapters and in the 8th chapter there are stated rules on
18 subjects including both civil and criminal matters. The code of Yajnavalkaya
was founded on the Manusmrities but the treatment was more logical and
synthesized- particularly on the question of women – their right to inheritance, their
right to hold property and other rights on the same line.
The code of Narada had came to us in its original form and its subject is divided into
two part, the first part deals with judicature and the second part deals and discusses
the 18th title of legal subject contained in Manusmrities, the merit of this smriti is that
it states the law in more lucid and logical manner which is both clear and attractive,
some of the topics that Narada deals are inheritance, ownership, property, gift and
ownership.
The smiritis did not visualize an ordered legal system but they did conceptualize an
aspiration-“nyaya” –which we now call ‘justice’.
The Arthashastra deals with the imperial code of law of the Maurya King (325-185
BC), the Dharmasastra based on the psyche of Hindu nation established with Brahmin
Empire of Sunga Dynasty.
The second part deals with the functioning of legal system in British Empire, before
India became colony of Britishers India was under the last ruler of Mughal dynasty
(1526 to 1761) Bahadur Shah II whose territory did not extended much beyond the
rampant of Delhi, petty chieftains and big zamindars also had courts exercising both
civil and criminal jurisdiction within their respective territories, in this time period
origin of legal professions in India can be traced, there was a class of “Vakils” who
use to represents clients more of an agent than of a lawyer.
In early days of Mughals the East India Company was more concerned with
management of its own factory at Calcutta and exercising power over Englishmen,
however after the Battle of Plassy and Battle of Buxar Company acquired the diwani
of Bengal, Bihar and Orissa, originally the civil and judicial administration of
territories was managed through Indian diwans but after the arrival of Warren Hasting
in 1772 the matters outside the town of Calcutta was undertaken by East India
Company.
At the time of marriage of King George II with Infanta Catherine of Braganaza, the
king of Portugal made a present of the island of Bombay to British Crown, by a
Charter of 1669 the King Charles II transferred the island to the East India Company
for the rent of 10 pound per annum.
By the charter of King George I Mayor’s Court was established, to try, to hear and
determine all civil suits, action and pleas, between the parties within the said three
presidency town or within the factories subordinate thereto.
A notable feature of the British-Indian judicial system before 1862 was the existence
of two parallel systems of courts- The Supreme Courts in Presidency towns and the
adalats in the areas known as mofussil.
An intresting anecdote of legal history is that no country which had not at some time
or the other been a part of the Britisher Empire has ever voluntarily adopted the
common law.the stack fact is that whenever there was a choice between common law
and Roman law the decision had been in favour of Roman law , the reason is that it is
in form of code and is far more convenient to understand.
The third part discusses the legal system at village level it is true that arbitration was
known and practiced in India long before the advent of British rule, and that adversial
litigation was a British impostion, it did not infiltrate into the villages of India where
panchayats had existed for thousands of years . Panchayat means coming together of
five persons to resolve the dispute, there was no code of law that applied uniformaly.
The fourth part deals with alternative methods of dispute resolution mechanism like
Parliament passed Arbitration and Conciliation act, 1996 conciliation –means
mediation became one of the acknowledged mode of dispute resolution, though the
act been in statute book but not yet undertaken by lawyers as a method resolving the
disputes among the clients.
Lok Adalats –an indigenous species of alternative dispute resolution.
Lok Adalat means court of people ,originally recommended in 1980 by the committee
for implementing legal aid scheme, lok adalat had been working effectively with the
active support of chief justices of high court and judges of Supreme Court of India,
the of such adalats are settling the disputes, including cases pending in court, through
this voluntary mode of ad hoc conciliation has proved quite effective. These lok
adalats are manned by retired justices from the high courts, who sit along with some
prominent persons in public life.
The fifth part deals with different aspects of justice under the constitution, the author
talked about few articles like Article 142, Article 17, Article 14, Article 38 to 51,
Article 136, Article 142(1).
Nariman also talked about Section 303 of IPC which states that “whoever being under
sentence of imprisonment for life, commits murder, shall be punished with death”,
however under ordinary circumstances the sentence for murder is either death or
imprisonment for life .
The sixth part discusses the criminal justice system “About a decade ago, a former
chief justice of India when laying down office said that criminal justice system had
already collapsed”.
Between 1999-2001 an average about 5000000 crimes were registered in each year in
the states and union territories, one third of these were IPC crimes and rest were
offences under special and local laws. The pendency of criminal cases in the
subordinate courts is in the region of 13200000 and the effective strength of judges in
subordinate courts is only 12,205, courts were able to dispose of on an average only
19 per cent of the pending criminal cases each year. Over 200000 under trials are
actually in prison, around 70 per cent of the prison population comprises under trials.
In 2002, of the 272079 prisoners in jail, 192440 were undertrials and 64960 were
convicted persons.
In India not even 45 per cent of people charged with serious IPC offences, including
mob violence are ultimately convicted. In other countries like UK, USA and Japan the
conviction rate for similar officers is over 90 per cent.
Malimath Committee Report (2003)recommended that there should be a separate
investigation wing with experienced police officers trained in forensic method of
investigation.
But another important recommendation of the the Malimath Committee has been
accepted by the government and that is the introduction in our criminal law of the
concept of plea bargaining.
The last part discusses with the Indian legal system’s problem –the legal system,
especially in India is one in which the chances of error are admitted to be so high that
an elaborate machinery has been provided by statute for the correction of not one
error at one level but errors also at intermediate and high level.
One appeal is considered a reasonable precaution , two appeal suggests panic and
three or four appeals suggests a complete lack of confidence in the judiciary.
“Lord Reid once observed that people want the law be two incompatible things:
certain and adaptable”. Lord Atkin said “Finality is a good thing, but justice is better”.
One aspect of our legal system that has amazed and dismayed the public is a lack of
consistency in decision making.
Kesavananda Bharti case of 1973 a case which split the court down the middle ,the
final order , which is found reproduced on the last page of a supplement of the
Supreme Court Reporter of 1973 was signed only by 9 judges out of 13 who heard the
cases.
Justice Cardozo once criticized judges enslaved by precedent by comparing them to a
type of medical practitioner ‘who would rather that the patient died by rule than lived
contrary to it.
The reason of excessive burden of case law and lack of effective case law
management is that there are too many judgments report which have to be cited,
which have to be looked into, followed or distinguished all of which takes up a vast
amount of judicial time.In 1990 there are 5 volumes of printed judgement of Supreme
Court in 1997 they filled 11 volumes, in 2003-2004 there were 12 volumes of law
reports, it becomes very difficult for the lawyers to look into each volumes and retain
important cases for future.
CONCLUSION:
After having a deep insight of this book, I found the various hassles that our judicial
system is undergoing, the hassles whose origins can be traced back in the legal system
of pre-independence period. I believe these hassles still persist and it is impeding the
proper dispensation of justice to the masses. I found out what the true sense of justice
actually means, also I came to know about the supremacy of justice over law and the
final pronouncements of the courts. Nariman, in his conclusion says that laws that are
guaranteed to us under our written constitution are ultimately what the judges of the
highest court say it is and also that the law is not merely about cases, not about legal
rights, but also about hard work and integrity. At the end, he puts his accentuation on
the imperativeness of the judiciary, says that judiciary is like oxygen in the air, people
realize and comprehend its utility and importance only when they are denuded of it,
this is the sole reason why citizens of our country take the judiciary as well as our
laws for granted. He says at the end that, in the country like ours, the judiciary is the
salt of the earth and prays to the almighty that there shall be no occasion when it can
be said that the salt has lost its savour just because somewhere and somewhat
judiciary has failed to uphold the legal rudiments that are enshrined under the ‘law of
land’.
