This is a book whose time has come when
speedy justice became the urgent need of the people of the country. When many cases are pending, people are awaiting quick justice and the demands and criticism against the
judiciary due to delay in delivery of justice are increasing day by day,
it is hearty to note that Nariman has thought it fit to write a small but sharp
book on the subject.
The book starts with the concept of the legal system in Pre-British
India, its functioning and transition to independent India, legal system
at the Village level , Panchayti Raj, the legal system under the constitution
and the link with the English language. Nariman also emphasises the importance
of English language and legal system which we have imported but nourished in
Indian soil.
In ancient India the main source of laws
were smritis- Manu smriti, Yagnavlakya smriti, Narada smriti. Brihaspati
smriti emphasised the spirit and invoked
Equity even against the written law.
They were “a compendium of principles for the regulation of human
conduct.” (2) The Arthasastra predated smritis but ceased to function
separately subsequent to the Manusmriti. In ancient India the bulk of
the administration of justice is done through popular assemblies called Sabha or samiti which were deliberative
bodies for discussing public business and also fora for judging the case
brought before them. During the Mughal period ( 1526-1771) , the petty
chieftains and big zamindars also had courts exercising civil and criminal jurisdiction.
The British courts which initially confined to judge the English extended their
jurisdiction gradually and the King’s courts ( later called the Mayor’s
courts), Recorders’ courts, Supreme courts superseded one another . The notable
feature before 1862 was the existence of two parallel systems- the Supreme
courts in the presidency towns and the adalats in mofussil areas. This
disparate system ended with the establishment of the high courts in presidency
towns Calcutta, madras and Bombay after 1862. The Great Codes – The Code of Civil
Procedure(1859), The IPC (1860), THE code of Criminal procedure (1861), the
Indian Contract Act (1872),The Indian Evidence Act( 1872),and the Transfer of
Property Act “form the bedrock of Indian legal system” (19) After the Government of India Act 1935 came the Federal Court of India which was replaced after Indian
Constitution , 1950 by the Supreme Court of India.
After independence Shriman Narayan Agarwal
drafted a ‘Gandhian Constitution for Free India’ which received tacit support
from Gandhi but completely ignored by leaders of Independent India. Gandhian idea of indirect
and decentralized system was not opted for and the Constituent Assembly
preferred parliamentary democracy with a centralized bureaucratic
administration. Although article 40 provided for village Panchayats with powers to function
as self-government , this directive principle was not enforceable by any court.
The Constitution 73 amendment reinvigorated the Panchayat raj system to an extent
only.
The book also elaborates the alternative methods of dispute resolution such
as conciliation and arbitration, Lok Adalats, and special tribunals. Narman
says that “mediation leading to a possible settlement of a dispute, is to be
preferred to adversarial litigation in court or before an arbitrary tribunal.” (41) Lok Adalats and the introduction of the
Consumer Protection Act, 1986 and The
telecom Regulatory Authority of India
Act which provide for decisions of
special tribunals have helped the disposal
of cases.
The different aspects of Justice under the
constitution, Criminal Justice system are dealt with in a more detailed way. Referring
to the different aspects of justice
under Constitution , he writes “ We have abolished untouchability and outlawed
backwardness in the Constitution of India, but alas, many of us have not
eliminated it from our hearts.(58) He
also points out that ‘The Constitution and the laws guarantee rights against
the state, but not by one group against another- a crying need in these
fractious times.” (59) invoking the
judgements of the late Lord Denning and
the Justice Krishna Iyer , Nariman says that the legal
system based on Anglo-Saxon Jurisprudence does work “if you only know how to make it work” (76)
In
case of criminal justice system, he refers to the increasing number of pending
cases (2,71,76,029 cases administered with a sanctioned judge strength of
20,558 judges in 2016), overcrowding of
jails ( above 116. 4 percent in all central jails including 51.1 percent of
undertrial prisoners and over 131.1
percent in all district jails including 73.3 percent of
undertrial prisoners in the year 2015)
He refers to deficiencies in criminal
justice system such as outdated laws, lack of comprehensive scheme of
payment of compensation ( specifically in cases of victims of custodial crime,
rape, child abuse and physically and mentally disabled victims), unsuitable
mandatory terms of punishment for certain offenses such as food
adulteration, treating the right to
silence as sacrosanct in cases of
terrorist related offences, lack of ideal crime-control model. He also mentions
the fallibility of judges at different levels in a tiered administration of
criminal justice, the absence of the relentless pursuit of truth as prescribed
standard for criminal cases , the ‘management’ of evidence by the crafty and
the influential wealthy , lack of
‘robust judgng’ in criminal courts as
some of the problems.
It also
deals with the aspect of who services
the Indian legal system , and how effectively . He opines that lawyers become
dishonourable when they see the
profession as business, not appear for
clients unconcernedly and strike work
and paralyze judiciary where public needs their expertise.
At the end Nariman identifies
problematic areas such as proliferation of appeals, frequent invocation of Writ
jurisdiction of high courts -judicial interference in administrative actions,
judicial attitudes- a lack of consistency by the Court a the highest level, excessive
burden of case law, and lack of
effective case management and suggests some judicial reforms . He suggests
that written judgments need to be more
precise and more brief keeping in view that
“a judgment or order of the highest court is read very closely by
lawyers and judges throughout the land.”(137)
The book offers some measures for
the effective functioning of the legal system such as Increasing the number of judges – 50 judges
per 10 lakh people in stead of 10.5 judges per
million as in the present as recommended by 120th Law commission report,
increasing the sitting time for judges, encouraging arbitration and Lok Adalats
,‘Robust judging’ by the trial judge, reducing the number of appeals
/adjournments, separation of forensic and law and order departments, punishment
for perjury ( it is 15 Years in the USA), Case law management—preparation of
restatement of law on every topic by a body of learned and wise lawyers after
restatement no case law prior to should be cited, formation of three- member
benches for important cases, meeting of
Undertrials Review committee every month
in every district to implement sections
436, 436 A of Criminal Procedure Code, information management system in all
central and district jails and the strengthening
of DLSC at district and state level.
In conclusion , Nariman writes of the need for Judiciary to be an exemplar of discipline in
approach, lifestyle, in word and deed . The judiciary is described as oxygen in
the air which people take it for granted
and do not realise its utility or importance. He also writes
that at present In a country like India,
“it is not enough for the Judiciary only to be independent of the
Executive and of all other external influences. Judges , because of the high
office they hold and the plenitude of powers they exercise, must be seen to
have noble qualities of mind and heart, and above all, of courage. Nobleness
and courage in the highest judiciary begets nobleness and courage all the way
down the line.” (147)
This is
one book which all who love and would
like to see justice as one of the cardinal ideals along
with liberty, equality, fraternity must read and reflect.
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