By: M. Sundara Rami Reddy, Advocate
Shri Justice S. Abdul Nazeer, as a sitting Supreme Court Judge delivered a Speech, in Decolonization Indian Legal System on 26 December 2021 at the National Conference of Akhil Bharateeya Adhivakta Parishad[1] has said:
“A Colonial psyche persists in the administration of justice in the present day Indian legal system. The British colonialists protected their subjects only on the surrender of the rights to the rulers. In other words, Justice could not be demanded but rather it was allowed by the State as a matter of concession. This is in contrast to the ancient Indian legal systems, where justice could be demanded, being the concept that was inbuilt. Ancient legal systems of India even required kings to bend before the rule of law and justice could be demanded against the kin or even the king himself. Instead of this approach, the colonial mindset left behind by British colonialists is apparent from the manner in which pleadings are drafted in Court today, the way in which the Courts are addressed and more importantly, by accessibility to Court itself”, observed the Judge.
He further said that: “The need of the hour is the Indianisation of the legal system. The eradication of such a colonial mindset may take time but I hope that my words will evoke some of you to think deeply about this issue and the steps that need to be taken to decolonise the Indian legal system. Even though it may be an enormous and time-consuming effort, I firmly believe that it will would be an endeavor which could revitalise the legal system and align it with the cultural, social and heritage aspects of a great Nation and ensure much more robust delivery of justice !”
Justice PN Prakash, who recently retired from Madras High Court, has called the judicial system as ‘farce’ and the use of the word ‘bogus’ will be harsh. He said that Indian courts are merely passing judgments, not delivering justice.
“He asserted that though calling our judicial system bogus will be harsh, one can call our judicial system a ‘farce’.
He argued that the jurisprudence of the West was shaped by the Greek belief system that this is only one life and that time is linear. However, Indians believe in several lives, and also in the theory of Karma. For us, time is cyclical and that is why we suffer injustices stoically. We accept boycotts of courts by lawyers and also long delays in the disposal of cases. We attribute all this to our Karma.
“Truth and justice are twin sisters. And in the absence of truth in the system, what we are delivering is not justice, but merely judgments.”[2]
In the case M.C. Mehta And Anr vs Union Of India & Ors
Justice P.N Bhagwati, farmer chief justice of india observed that:
“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order.”[3]
Mahatma Gandhi in his, famous ‘Hind Swaraj’[4], wrote as:
“Whenever instances of lawyers having done good can be brought forward, it will be found that the good is due to them as men rather than as lawyers. All I am concerned with is to show you that the profession teaches immorality; it is exposed to temptation from which few are saved. ge from time to time.” What Gandhiji said about lawyers is equally applicable to all those in the process of dispensing justice, including the judges.
India, for centuries had a robust legal system. It was based on Dharma and administered through the communities, panchayats, trade guilds, caste and sub casteorganizations, local groups, family and larger families etc. Legal System should have two wings. One is theoretical and other is its implementation. In our society, Dharma has percolated to the last man. The machinery that is adopted to percolate Dharma and ingenious methods is really great. A man in the street talks about Dharma and it is amazing. It is possible though the media of folk songs, folk tales, Hari katha, Burra Katha, Pravachanam, adhereing to various deities, temples and so on. Pandits, who is well versed with the Vedas, Upanishads, Puranas and other Dharma sastras/grandhas occupy pivotal position in the society and their services were called in the complicated matters. This system is in vogue even today. Dharma is applied locally and disputes are resolved instantly. “In India more than 70% of disputes were resolved by village Panchayats, comprising selected (by disputants) members of village. It means the role of Ordinary Law Courts in India is that of a small tip of ice berg”[5].
I can say, as a villager, that even 80 to 90 % of the disputes are settled informally. No technicalities, no fees is collected to render justice, amicably, to the satisfaction of all the disputes are settled.
Dhrama is such a word, even divine, it encompasses all walks of life. Sri Justice Rama Jois in his treatise “Legal Constitutional History of India, an Ancient Legal, Judicial and Constitution System” summaries: “The ancient Dharmasastras declared that Dharma which included the ‘law’ was binding on the king. According to Rajadharma, the king was given the power only to enforce the law. Dharmasastras did not confer on or recognize any legislative power in the king. This is the most important distinction between the concept of kingship in India and the concept of kingship in the western countries. According to western concept king was the foundation of all the three important limbs of the state viz., the Legislative, the Executive and the Judiciary. But under the kingship as recognized and established under the Dharmasastras the laws were those laid down by the Dharmasastras themselves. They did not authorize the king to lay down new laws or amend the provisions of Dharmasastras. On the other hand, Dharmasastras also laid down the laws governing the conduct of the king himself (Rajadharma).”[6]
England / British was occupied by different ethnic groups at different times. Their known history is of about 2000 years. First 1000 years, they involved in wars. They settled about 1000 years back. They were and barbarous. They were in search of better livelihood. Britishers / Europeans sailed to different parts of the world. Britishers came to Bharat some 400 years back. They were crude and ruthless. They cannot understand atma, paramatma, punarjanma etc. that was used even by common man. They started introducing their half baked systems and way of life. They are interested money and money only. They introduced English and Class or Standard based education, they have changed property rightsetc. In that process Macaulay started in Bharat Adversarial/ Common law legal system. The Adversarial/ Common law system does not come out with the truth, which is the basis of justice.
Government of India, Ministry of Home Affairs by its order dated 24 November 2000, under Chairman ship of V.S.Malimoth and the said Committee submitted its report in March 2003 and in it, it is stated that at Page 24:
“2.2. The system followed in India for dispensation of criminal justice is the adversarial system of common law inherited from the British Colonial Rulers. …. In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused…… The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court. As the adversarial system does not impose a positive duty on the judge to discover truth he plays a passive role.”
According to Malimoth Committee, there are two systems law in the world. “here are two major systems in the world. There are adversarial systems which have borrowed from the inquisitorial system and vice versa.[7]”
In the said report at Page 28: 2.16.4. in its report the said Committee sates: “It is worthwhile to recall the following observations of Dr. R.Venkataraman, former President of India” as:
“The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
In the said committee report at page1.39. Justice V.R. Krishna Iyer has expressed his anguish about the failure of the system in his article in the Hindu of May 25, 1999.
“The glory and greatness of Bharat not with standing, do we not, even after the braggartly semi centennial noises, behave as a lawless brood, tribal and casteist, meek and submissive when political goons and mafia gangs commit crimes in cold blood, and canny corruption and economic offences ubiquitous? The criminal culture among the higher rungs and creamy layers of society, even when nakedly exposed, does not produce the public outrage one should expect, with no burst of rage from those who must speak……… Sans the punitive rule of law, democracy becomes a rope of sand… India is not a soft State, a sick society, a pathologically submissive polity. In this darkling national milieu, the penal law and its merciless enforcement need strong emphasis. Alas the criminals are on the triumph, the police suffer from “dependencia syndrome” and integrity is on the decadence and the judges themselves are activists in acquittals of anti-social felons. Less than ten percent of crimes finally end in conviction and societal demoralization is inevitable”[8].
It is a pity to note that the Committee on Reforms of Criminal Justice System Government of India, appointed by Ministry of Home Affairs could find two systems in the world. It has forgotten our own system i.e Dharmic Legal System, which is widely prevalent in Bharat.
After independence, 1955 the 5th Law Commission of India was formed, with M C Setalvad as its Chairman. It said that “It would be ridiculous, it is said, for social welfare State envisaged by our Constitution which itself is based largely on the Anglo-Saxon. Model to think of remodeling its system of judicial administration on ancient practices, adherence to which is totally unsuitable to modern conditions and way of life.” Then the commission writes that “It is not easy to discover the details of the system of judicial administration which obtained in India prior to the introduction of the present system of British.[9]”
The Commission had the opportunity to promote Dharmic Legal System. But it opted for the Adversarial/English system, under which the dispensation of justice is farce and artificial. It can not be different in Nehruvian era of politics. Under Adversarial System, rarely people come to the Advocate / Court with the truth. The witnesses speak the lies left and right. Judges decides the cases, may not be correct. Reversal of judgment by the higher court is common. Truth is the ultimate suffer.
There is Inquisitorial that is followed by the Civil Law countries such as “It is the prevalent legal system in Continental Europe, Latin America, African countries not formerly under British rule, East Asia (except Hong Kong), Indochina, Thailand, and Indonesia. Most countries with an inquisitorial system also have some form of civil code as their main source of law.”
This system is better than common law/ Adversarial system, as it strives to arrive at the truth. Our country after independence could have opted for inquisitorial system and even now we can adopt such inquisitorial system as a stop gap arrangement.
https://en.wikipedia.org/wiki/Inquisitorial_system
This Adversarial System deserve to be thrown out in lock stock and barrel. Any amount of repairs by way of amendments and / new laws will not work. Decolonization is the only solution.
[1] https://www.livelaw.in/pdf_upload/lectureofjusticesabdulnazeer-406739.pdf
[2] https://www.opindia.com/2023/07/retired-justice-pn-prakash-reveals-his-appointment-was-opposed-because-he-is-a-brahmin/
[3] 1987 AIR 1086, 1987 (1) SCC 395
[4] M K Gandhi Hind Swaraj or Indian Home Rule Chapter on Lawyer 11.
[5] Shivaraj S. Huchhanavar writes in Vol.7 No.1 NALSAR Law Review 2013 an Article titled “In Search of True Alternative to Existing Justice Dispensing System in India”.
[6] Justice Rama Jois in his treatise “Legal Constitutional History of India, an Ancient Legal, Judicial and Constitution System” at page 1.
[7] Committee on Reforms of Criminal Justice System Volume 1 March 2003 At page 23
[8] Ibid page 23
[9] Law Commission of India Fifth Report on British Statutes Applicable to India 1957.
Arise Bharat 
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