JUDICIAL SYSTEM, MODERN

JUDICIAL SYSTEM, MODERN The judicial system in India today has generally won laurels for safeguarding the basic spirit of the Constitution and protecting the fundamental rights of common citizens. But it has also come under severe criticism for exhibiting extra activism. The judiciary is an important organ of the Indian state, and it has a vital role in the proper functioning of the state as a democracy based on rule of law. Without courts, laws remain dead letters; it is the courts that expound and define the true meaning and operation of the laws. The framers of India's Constitution had firm faith in the supremacy of law, and held that it was the only security for the disciplined and orderly growth of Indian democracy. They further stated that the judiciary had to perform a crucial role in a federal polity like India, where power was divided between the central government and the governments of the constituent units, and disputes concerning the range of their power and authority were likely to arise. Disputes between citizens as well as those between citizens and the state had to be resolved by litigation. Only an independent and impartial judiciary could settle such disputes effectively and decisively. Initially, Indian judges were influenced by the British concept of justice. But as the socioeconomic and political climates of the country began to change, the judiciary had to refashion itself accordingly. It dispensed with many stereotypes and started entertaining public interest litigations, passing strictures against the malfunctioning of the executive. It issued cautions and held that the legislature had no right to destroy the basic spirit of the Constitution. Thus the judiciary emerged as the guardian of the Constitution and the protector of the rights of Indian citizens.

Pre-independence Judicial Systems

It is only partly true that the modern judicial system was British. It also had deep roots in India's sociopolitical soil. India had various sets of laws, and its people were governed by different systems. Ancient scriptures, especially the Dharma Shāstra, took the dispensation of justice seriously. The king was entrusted with the supreme authority of the administration of justice. His palace court was the highest court of appeal, as well as an original court in cases of vital importance. He was assisted by a chief justice, and a host of other judges. The judges came from the upper castes, usually Brahmans. No Shūdra (a member of a lower caste) or woman could become a judge. Officers under the authority of the king presided over the town and district courts. Trade guilds (srenis) and corporations were authorized to exercise an effective jurisdiction over their members. Pūgā (commercial organization that was less powerful than Sreni, or guild) decided civil disputes among family members. Local village councils, or kulani, played an important role in solving simple civil and criminal cases. Decisions of each higher court superseded that of the court below. Each lower court respected the decision of each higher court.

Justice was not administered by a single individual. A bench of two or more judges was preferred. There were no lawyers, though persons well-versed in the laws of the smritis (law books) could represent a party in court. The rulings of the Dharma Shāstra were given precedence in criminal cases. In both civil and criminal cases, the social status of the accused, as well as that of the witness, was considered. The accused was allowed to provide witnesses in his defense to prove his innocence. People of higher castes received lighter punishments than lower caste offenders.

During the time of Muslim rule, dispensation of justice continued to be a matter of utmost concern for the state. Islamic law, or Shariʿa, was the basis of the administration of justice. It was considered the duty of rulers to punish criminals and to maintain law and order.

The British exploited India's traditional judicial systems to their own advantage for some time. In 1772 Warren Hastings took responsibility for dispensing both civil and criminal justice. He established a civil court (Diwani Adalat) and a criminal court (Faujdari Adalat) in every district. The civil court was presided over by a collector, who administered justice with the help of Indian subordinates. An Indian officer presided over the criminal court; qazis (judges) and muftis (theologians) assisted him. In the civil courts, Hindu law was applied in cases concerning Hindus, and Muslim law was applied in cases that involved Muslims. In the criminal courts, only Muslim law applied. For a while, the judges of the Supreme Court, established in 1774, tried to uniformly apply English law. However, this move was opposed bitterly by Indians. Thus the Act of 1781 restricted the application of English law to Englishmen in India only. But soon conditions changed, and the need for definite codes, applicable to all Indian subjects, was urgent. Lord Cornwallis took the initiative in applying British laws in India, implying the spirit of equality for all before law. He is also credited with introducing a secular judicial system in India. The Cornwallis Code, or Bengal Regulations, bound the courts to make decisions on the rights of persons and the property of the Indians according to the provisions of the regulations. To a great extent the regulations accommodated the personal laws of Hindus and Muslims, stating them in clear terms. The regulations were published in English and in Indian languages. Thus the administration of justice based on written laws and regulations, rather than vague customs and the will of the ruler, was initiated. This was a landmark in the history of India's modern judicial system.

Cornwallis also separated the judiciary from the executive. One person could not control both wings honestly and efficiently. To make the judicial system more effective, provincial circuit criminal courts were established. Provincial civil courts were initially established at Dhaka, Murshidabad, Kolkata, and Patna. Both district level courts were presided over by English judges. Munsif courts (local courts that dealt with civil matters) and registrar's courts (local courts that dealt with the purchase and sale of land) were introduced with Indians at their head. Sadr Diwani (an apex court that dealt with civil matters) and Sadr Nizamat courts (the highest criminal court) were the highest courts in Kolkata, and the governor-general was to preside over both. Capital punishment could be awarded only by the Sadr Nizamat court, just as the King's court, or Privy Council, in England was the highest court of appeal.

Governor-General William Bentinck abolished circuit courts. In 1833 an Indian Law Commission was appointed under T. B. Macaulay to codify the Indian system of law and court procedures. The Indian Penal Code was introduced in 1861. The Criminal Procedure Code was promulgated in 1872. The British Parliament passed the Indian High Courts Act in 1861, after which a number of High Courts were established in provinces. The Federal Court of India was established under the Government of India Act of 1935. This court was inaugurated in New Delhi on 1 October 1937. It was given all three kinds of jurisdiction: original, appellate, and advisory.

The British thus introduced a judicial system in India, which helped Indians in many ways. In theory, everyone was equal in the eye of law. In British India, however, this was never true in practice. The British living in India, suffering from their affliction of racial superiority, opposed any move by which they could be tried by Indian judges. The British bureaucracy and the police enjoyed arbitrary powers. In practice, therefore, the system failed to achieve its objectives of establishing a rule of law and equality before the law.

After Independence

India attained independence on 15 August 1947, and its Constitution was adopted on 26 January 1950. A single integrated system of courts for the union and the states, to administer both union and state laws, was accepted.

The Supreme Court

At the apex of the entire judicial system is the Supreme Court. This court is given independent status, and all laws declared by this court are binding on all courts in India. Initially, this court had a chief justice and seven other judges. The number of judges, however, has gone up to twenty-five. The chief justice is appointed by the president of India, as are the other judges, in consultation with the chief justice. Judges hold office only until they reach sixty-five years of age. They can also be removed by the president, but only when impeached by both houses of Parliament.

The Supreme Court enjoys original, appellate, and advisory jurisdiction. It is given exclusive jurisdiction in disputes between the central government and a state, or between one state and another. The Supreme Court also has exclusive jurisdiction over matters arising in the territories in India, and it is the custodian of fundamental rights, a power that is widely exercised. It has extended its powerful, long hands to protect any person whose fundamental rights have been violated. It has also started entertaining public interest litigation.

The primary task of the Supreme Court is appellate. It plays the role of final arbiter in constitutional questions. It can hear appeals against the judgments of the High Courts, tribunals, and special tribunals, and its judgment is final and can be reviewed only by itself.

The Supreme Court can render advice on any question of law or fact of public interest as might be referred to it for consideration by the president. The Supreme Court is a court of record, and its proceedings are recorded for perpetual verification and testimony. The Supreme Court enjoys the power of judicial review. It can pronounce upon the constitutional validity of laws passed by the legislature and actions taken by administrative authorities.

The High Court

At the state level, the Constitution provided a High Court, which is highest judicial administrative body in the state. The chief justice of the High Court is appointed by the president, and other judges with his consultation. A citizen of India who has held a judicial post for ten years or who has been a lawyer for two years can be appointed a judge of the High Court. Judges of the High Court hold office until age sixty-two. The mode of their removal is the same as that of a judge of the Supreme Court. They can be transferred from one High Court to another.

The High Court exercises supervision over all courts and tribunals within its jurisdiction. It can take steps to ensure that the lower courts discharge their function properly. It can transfer cases from one lower court to other lower courts. The High Court can issue writs for the enforcement of fundamental rights. It can issue writs even in cases where an ordinary legal right has been infringed. The High Court is a court of record and is the highest court of appeal in the state in both civil and criminal cases. The High Court has advisory power, and the governor seeks its advice on some important issues.

The lower courts

Barring some local variations, the subordinate courts throughout the country are structured uniformly. They function under the supervision of High Courts. There are civil and criminal courts in each district. When the judge hears the civil suits, he is called district judge, and when he presides over the criminal court, he is called the session judge. Apart from these courts, Sub-judges Court (courts subordinate to the district judge), Munsif Court, and other courts also appear at the district level. At the subdivision level, similar courts function smoothly.

The panchayats, or village councils, also play a vital role at the local level. The Mukhiya (head of the village council) and the Sarpanch (figure who looks after judicial matters at the village level) are armed with some judicial powers. Inquiries are to be conducted, and punishments are imposed on the offenders.

The attorney-general is appointed by the president of India. It is his duty to give advice to the government of India on legal matters. He also gives advice to the president on legal matters. He can appear in any court in the territory of India. He has the right to speak in either house of Parliament, or in any committee. The solicitor-general and the additional solicitor-general are two other important legal authorities who advise the government of India on legal matters. They can appear in the Supreme Court or any High Court on behalf of the government of India.

Later Developments

India's courts of law, however, were unable to meet the challenges posed by modern socioeconomic developments. As a result, various tribunals have been established that are not strictly courts in the traditional sense. A member of a tribunal takes a functional rather than a theoretical and legalistic approach. Tribunals do their work more expeditiously, inexpensively, and effectively. The Central Administrative Tribunals were formed to deal with the service matters of the employees of the central government. The president of India appoints the chairman and vice-chairman of these tribunals, in consultation with the chief justice of the Supreme Court. Other important tribunals include: the Customs and Excise Revenue Appellate Tribunal, Monopolies and Restrictive Trade Practices Commission, National Consumer Disputes Redressal Commission, States Cooperative Appellate Courts and Tribunals, Foreign Exchange Appellate, and Industrial Tribunals. The Election Commission has been constituted to hold free and fair elections in the country. Martial law courts at various levels have been constituted to handle cases related to military personnel.

Family courts have been established to dispose cases of divorce and promote conciliation in securing speedy settlement of disputes relating to marriages. Cases are also solved by the arbitration courts. Lok Adalats, initially started and encouraged by a few judges of the Supreme Court, promote the voluntary settlement of disputes inexpensively and expeditiously.

To make justice more democratic, Legal Aid was created for citizens whose annual income does not exceed a certain sum. The Legal Aid and Advice Boards were also constituted. Another advance was the emergence of the public interest litigation movement in the 1970s, with its goal of making the judicial system accessible to the lower socioeconomic strata of the society. Socially conscious individuals and action groups helped bring justice to people whose rights had been violated and who on their own could not approach the court. Complaints filed against authorities were looked into by commissions appointed by the court. On the basis of their reports, cases were filed in the High Court as well as the Supreme Court.

The Supreme Court shifted from a detached positivist institution to one that was an active player. Hence it was accused of activism. Judicial activism was an assertion of judicial power in cases where the judiciary came face to face with legislative arbitrations or executive abuses. The famous 1975 prime minister election judgment unseating Indira Gandhi and holding her election to parliament as null and void was one such case. The High Courts and Supreme Court on many occasions passed strictures on the functioning of the executive. It was argued that the judiciary was encroaching upon the jurisdiction of the executive, the legislature, and other institutions. However, an essential aspect of a constitutional judicial system is the duty of the courts to safeguard the interests of the common citizen.

As a result of public interest litigation, the weaker sections of the populace are now looking to the courts as their protectors. The courts, once inaccessible to them, are now seen as a source of justice. Still, despite these positive developments, litigation expenses and inordinate delays in deciding cases still plague modern judicial system.

The nature of the judicial process is very tiresome. Examination, cross-examination, and reexamination of witnesses in court takes too much time. Generally, the offenders and influential people manage lawyers and waste too much of the court's time. In this process, justice is delayed, and often, justice is denied. The high incidence of acquittals points to the failure of the judicial system. The judicial process has become technical and cumbersome; lawyers take full advantage of this complexity, and exploit the litigants financially as well.

Pramoda Nand DasYuvaraj Deva Prasad

See alsoBentinck, Lord William ; Cornwallis, Lord ; Dharma Shāstra ; Hastings, Warren

BIBLIOGRAPHY

Austin, Granville. Working a Democratic Constitution: The

Indian Experience. New Delhi and New York: Oxford University Press, 2000.

Epp, Charles. The Rights Revolution: Lawyers, Activists, and

Supreme Courts in Comparative Perspective. Chicago: University of Chicago, 1998.

Garlander, Marc. Competing Equalities. Berkeley: University of California Press, 1984.

Kirpal, B. N., Ashok H. Desai, Gopal Subramanium, Rajeev

Dhawan, and Raju Ramachandran. Supreme but not Infallible. Delhi: Oxford University Press, 2000.

Kohli, Atul. The Success of India's Democracy. Cambridge,

U.K.: Cambridge University Press, 2001. Kulshreshtha, V. D. Landmarks in Indian Legal and Constitutional History. Lucknow: Eastern Book Company, 1984. Verma, S. K., and Kusum. Fifty Years of the Supreme Court of

India: Its Grasp and Reach. New Delhi and New York: Oxford University Press, 2000.