Bar Speaks: The Legal Fraternity Decoding Indianization of Judicial System

Read Time: 28 minutes

In the Recent past Chief Justice of India, NV Ramana has been consistently found pointing out that the Judicial System needs to be "Indianised" and there need to steer away from Colonialization.

Justice Ramana Said, “Very often our justice delivery poses multiple barriers for the common people. The working and the style of Courts do not sit well with the complexities of India.”

Justice Ramana also said that that there is a need to adapt to the practical realities of our society and localize our justice delivery systems.

In this context, the genesis of India’s current judicial system can be traced back to the Colonial era which established the system which is currently being followed. As per Chief Justice NV Ramana, the system being colonial in origin is not exactly suited for the needs of the Indian population.

Justice PS Narasimha has also specifically said that it is a Constitutional mission to decolonize the Constitution. A large number of laws and a large number of interpretations that we have suffered over 70 years require a re-look.

At Lawbeat, we consider discourse an important aspect of Legal Journalism which includes inculcating a plethora of opinions and voices from across the board in its ambit to understand various nuances of an issue. This inclusivity of opinions is what Lawbeat strives for, day in and day out. Indeed, discourse is the only way forward for change-making.
Therefore, our team reached out to a cross-section of Former Judges, Senior Lawyers & Lawyers from across the country to get their views on what Indianisation of the Judicial System means, whether it is something that is required, and what is it that the judges mean by Indianization and decolonization of the judicial system in India.

What the Legal Fraternity had to say:

“Immediate leaders of independent India were influenced by the Britishers”

Tracing back the roots of the current judicial system to the early 19 century, Senior Advocate Prashant Chandra, Allahabad High Court reminds us of one of Lord Macaulay’s speeches. Macaulay was appointed by the crown to frame laws for India." 

Chandra says, “He said that if you want to win over the Indians, you have to break their social fabric and educational system.”

He highlights that these Macaulay framed laws, which were implemented following the mutiny of 1857 to avoid such uprisings in the future, India is still following. He adds that the current Civil Services system is also Macaulay’s doing which was brought with a purpose to tame the Indians.

He says, “Maybe because immediate leaders of independent India were influenced by the Britishers or it was a British strategy but the history has been shut out and same governance laws are still running this country.”

Stressing that apparently, CJI is more enlightened about the issue than the others as most people don’t even know this part of the history, Chandra says that if he is asking for a change then he is absolutely justified. He also adds that decolonization of only the Indian Judicial system is required but also the governance system should also change.

"The bulk of laws including the IPC & Evidence Act remains as it is"

Senior Advocate Subody Markandeya, Supreme Court said,

 “People of my generation can tell you that British laws were very harsh on us and it was a constant refrain of our leaders during the freedom struggle that laws would be "Indianised" after freedom is won.”

He added that, “To this end clause (2) of Article 372 was enacted. It was expected that starting with IPC, Cr.P.C., and Evidence Act which were already antiquated in 1947, power under clause (2) would be exercised. Cr P.C. was no doubt, revised to a limited extent. But the bulk of laws including the IPC and Evidence Act remained as they were. Partly because the power of bringing the law to conform to the Constitution vested in the President, being limited, expired at the end of three years. This three-year limit was very incongruous.”

“Parliament and State Legislatures did not take any lead to "Indianise" pre-Constitutional laws,” Subodh Markandeya, Senior Advocate

Markandeya further said, “Even interpretation of the Constitution has to as per an antiquated law - General Clauses Act enacted in the 19th Century. A new comprehensive law dealing with the principles of interpretation of Constitution and the laws is a crying need of our times.”

“Judges like Justice Krishna Iyer no doubt brought a whiff of the new approach. But being steeped in Anglo-American jurisprudence, our Judges did not seriously explore indigenous sources like "Mimansa" rules of interpretation,” he added.

Markandeya opined that “Acharya Chankya's "Arthashastra" is a veritable source of quintessential humanistic fundamental principles of governance, law, and jurisprudence. It behooves us to examine the feasibility of their adaptation to modern times.”

He further added, “Also, it has been long felt that the drafting of our laws is very cumbersome and needs drastic simplification so that laws are understood by the common man.”

“Common Indian feels it’s not for them”

Advocate Vikram Hegde of Supreme Court said, "The common Indian feels out of place in the legal system. They feel it is not for them, just as they felt the main obstacles are language, procedural complexities, costs, and delays. While the solution to these is a long process that involves interventions and changes at many levels from the legislature, executive, lawyers, industry, and most importantly judiciary.”

“Hence it is good that the CJI and other judges of the Supreme Court are recognizing this problem and we hope they start taking steps to address it. Us lawyers also should start contemplating what we can do," Hegde added.

“High time to repeal all the Colonial Laws”

Advocate Ashwini Kumar Upadhyay, Supreme Court pointed out that, “The working of courts does not match with the complexities of India. The systems, practices, and rules being colonial in origin, are not exactly best suited to the needs of the Indian population.”

Raising another concern of the litigant Ashwini said that “Presently, the parties which belong to a rural background usually feel out of place when present in Court. Judgments and Pleadings in a Foreign Language (English) make it very hard for them to understand what is written in the petitions. The lengthy judgments further complicate the position of litigants to understand the implication of judgment.”

“It's high time to repeal all the Colonial Laws, preferably starting with Indian Penal Code 1860, Police Act 1861, Evidence Act 1872, and Civil Procedure Code 1908. We have more than 500 Law Colleges, Former Judges, IAS-IPS Officers, and Retired Law Officers. If we allocate the colonial Laws to Law Colleges and request Former Judges, IAS and IPS Officers, and Retired Law Officers to mentor them, all the Colonial Laws can be redrafted within six months only,” Ashwini added.

He said that the Laws must be available in all regional languages so that the common man knows his rights, as well as how to enforce them and whom to approach when there is a denial of those rights. The courts have always followed the rule that the mistake of law is not permissible. But how does the common man know about the law when he cannot even read it? Panchayati Raj Institutions have to be empowered and small cases should not be allowed to clog the normal court system but should be decided by them. A Judicial Charter must be implemented and judges must follow timelines within which argument should be finished.

Among several other issues, Ashwini said that the Advocates play important role in the justice delivery system. Hence, they must ensure that unnecessary adjournments are not sought and cases are decided as expeditiously as possible without compromising the justice delivery system and basic principles of natural justice. The use of Indian languages in courts at the grass-root level will become more significant in a sound judicial system for a country like India. (Presently local languages in courts are permitted but not used by most of the judges).

He further added that, “The complexities in the proceedings and judgments must be removed and made as simple as possible. The local conditions have to be taken into account, for instance, what particular kinds of cases are coming from a certain region. All these measures will give the local conditions, due importance. Mediation can help in coming out of procedural delays and reach an immutable solution. It is also a cost-effective method. Concise and timely judgments in a familiar language are required for the effective delivery of justice.”

Discussing the importance of Mediation Ashwini said, “Mediation is a win-win situation as the process not only reduces the pendency of cases but also works up to the satisfaction level of both the parties as in mediation, they are the ones making a decision. The need of the hour is to correct the patriarchal mindset in recommending and approving the names of those who are to be elevated as high court judges and come out with more representation to worthy women lawyers and district judges for elevation. No reforms can effectively take place unless it is inclusive of women. The strength of judges is increasing but it is not up to the desired level as it is in European countries. Currently, India has only 19.78 judges per million people.”

“India has a very effective trustworthy democratic and oldest judicial system as well as the oldest judiciary dating back to 50,000 years. However, most of the statements in judgments nowadays are taken from western jurisprudence and India’s own justice delivery system is given much less recognition. Indianisation in the judiciary is the need of the hour,” he added. 

“Constitution of the world’s largest democracy should be the most powerful among in the world”

Advocate Dr. AP Singh, Supreme Court said that the Indian Constitution is a mixture of constitutions of many countries. The then President of the Constituent Assembly of India and Members, after a lot of hard work, observing the Constitution of many countries, the need of the country of India at that time and circumstances and the whole situation, in view of the political, socio-economic, religious reasons had drafted the Constitution and adopted it.

He said that the statement of the Hon'ble Chief Justice is completely true because, in the present scenario in our country, a lot of conditions have changed since independence. The conditions, situations at present on the basis of caste, region, language, religion, and sects should be described in detail and after a detailed discussion on it and also joint discussion with political parties.

Singh said that “the views, aims, feelings and thought of CJI in excellent and admirable. All citizens of the country should welcome the feelings and thoughts of Hon'ble CJI and Justice PS Narsimha with the bottom of their heart and all political parties should co-operate in that and all the political parties, scholars of the constitution of the country should try their best to make the country strong by accepting this fact by erasing their differences.”

“Almost all laws drafted to put fear in the mind of Indians”

Advocate Shashank Shekhar Jha, Supreme Court said that the current Indian Judicial System was formulated by Colonial British to rule India and Indians. Almost all laws were drafted in such a way so as to put fear in the mind of Indians and in order to curtail any sort of decent whatsoever.

“Additionally, our laws are outdated to such an extent that there are over 5 crores pending cases. If we assume that there are at least two parties in a case and 5 members in a family, over 50 crore population is directly involved in the litigation which is more than one-third of the total population. The status quo must change in order for our mighty democracy to stay relevant since, "Justice delayed is justice denied",” he added.

“Present Legal system needs reformation so as to become the litigant centric”

Advocate Sandeep Jain, Supreme Court said that the basic principles of the Legal system are still based upon the Legal system followed by the Britishers in the pre-independence era.

“But now, the things have changed. The present Legal system needs reformation so as to become the litigant-centric,” he added.

Jain further opined that with the advancement of technology and with the advancement and changes in the way of thinking of the Indian people according to the various different circumstances as they were at the time of pre-independence era as compared to in the present day, the present Legal system requires changes to be adopted based upon the different circumstances of the people of India today.

“Reform cannot take place effectively unless it is inclusive of Women”

Advocate Yash Jain, Gwalior High Court, and District Court said that “India has the oldest judicial system in the world dating back to 5000 years.”

Jain added that “The Malimath Committee’s 2003 report over the issue of reforms required in the Criminal Judicial System of India suggested there is a need to bring Schedule to the Code in all regional languages making the accused and litigants aware of their rights, which has not been done yet at its fullest.”

He further added that Indianisation is required at the grass-roots level taking small measures like removing complexities from the court proceedings and judgments.

“Reform cannot take place effectively unless it is inclusive of Women,” Jaid added.

 [Formulated with inputs by the Lawbeat Team: Salil Tiwari (Special Correspondent), Ratna Singh (Legal Correspondent)]