Courting the Past

Courts of India—Past to Present with its evocative photographs and illustrations, historical and philosophical background and structure of our justice delivery system, is a gem

~By Nayantara Roy

Sometimes, homegrown wisdom in the form of proverbs is proved delightfully wrong. Judges of the Supreme Court, High Courts, many advocates, academicians, researchers, court officers, law students and others, have produced this “must-have” book, clearly showing that “too many cooks” can produce a world-class “broth”.

With the increase in social legislation, rights awareness and the need to turn to the courts for implementation of rights, Indians have become more and more interested in judicial pronouncements. However, without some background knowledge of the functioning and basic philosophy of the legal profession, erroneous notions often crop up among armchair debaters. This book will go a long way in helping people make informed analyses of news snippets about judicial decisions that affect their lives.

More than that, it is by itself an enjoyable read, full of human interest details, “drafted” in deft and elegant prose. It briefly spans the historical background of law in India, coming all the way up to recent times.

The first section on ancient India draws comparisons between lawmaking then and modern ideals of law. Details are given such as how the king was not meant to take decisions on his own; that while “the king was recognised as a fountain of justice, the Smritis had prohibited him from acting alone in the task of the administration of justice. The collegiate character of the king’s court is explicit from Brihaspati’s verse to that effect….” The roots of equity jurisdiction are traced in examples such as the Brihaspatismriti stating that: “No sentence should be passed merely according to the letter of the law. If a decision is arrived at without reasoning and considering the circumstances of the case, there is violation of dharma.”

This book is an enjoyable read, full of human interest details “drafted” in deft and elegant prose. It briefly spans the historical background of law in India, coming all the way up to recent times

Detailed court systems of the medieval period are described with clarity and conciseness. While students of history study court structures as set out by historians, in this narrative, the details are provided by members of the legal profession, essentially heirs to those historical structures and procedures. Described in terms of a contemporary understanding of law and legal proceedings, it makes what could have been a dry narration of dull facts come alive with a present-day connect.

This is followed by a section on the administration of justice in tribal areas, thereby ensuring a pan-India coverage that is often missed out in other discussions of the history of India’s legal system. This section says: “The availability of a variety of courts to serve the people in their own intimate environment, collegiate character of courts and simplicity of procedure were the predominant features of the ancient system. The ancient systems’ approach of combining truth with justice, equity with law and discretion with reason has a universal message.”

The next sections cover the advent of the Europeans, the colonial conquests and subsequent judicial systems set up by the Portuguese, the French and of course, the British East India Company. Along with interesting case histories are nuggets of information such as: “…the French during the initial periods of their rule did not introduce any radical changes in the native law or legal systems of the territories in which they settled. On the other hand the arête of the governor, dated 6 April 1818, made it mandatory for the courts to recognize the established customs of the local people.”

Vignettes of history appear here such as the founding of Fort William in the village of Kalikatta, and how King Charles II acquired Bombay. This takes us to a chapter on the charter courts of Bombay, Calcutta and Madras.

Do not be daunted by the size of the book. While it traverses a historical connect to the modern day, it can comfortably be read in sections over a lazy holiday or when time permits

The history and politics of the time come out via stories of habeas corpus writs and other technicalities such as the Commaludin case in which it was held that every person was entitled to protection of English law in case of oppression.

Not everything is wonderful, though.  Scandals of the time such as Maharaja Nund Coomar’s hanging for forgery by Elijah Impey and the public outcry against it are woven into the tale of legal developments. There is also a reference to pendency of cases at the time!

The story of these developments is embellished with beautiful illustrations from old etchings, photographs, snippets from newspapers of the time and so on. In fact, the wealth of beautiful historical illustrations alone could make the book a collector’s item.

The next few chapters move on to the setting up of the modern legal system in India, beginning with the colonial period and continuing to the current day functions of the “the conscience keeper of Independent India: the Supreme Court” and the High Courts.

Some famous trials are described in this segment, such as the Bhawal Sanyasi case, the INA trial and the case regarding the banning of the book, Lady Chatterley’s Lover.

All through, landmark cases, famous and infamous, are discussed in easy anecdotal style to illustrate points made about the development of law or to explain essential attributes of it. We are given vignettes about lawyers and judges who have become part of court lore and legend, including Cornelia Sorabjee, the first Indian woman to study for the BCL at Oxford, and Anna Chandy, India’s first woman judge.

A special sub-section is devoted to civil rights and gender issues and to PILs. Judgments during the Emergency are discussed with a special reference to Justice HR Khanna’s principled, albeit minority stand. The important role of courts in forming our fledgling democracy is highlighted through examples of notable cases.

It’s a book by legal professionals, but not just for legal professionals. It’s for anyone who is interested in knowing about the historical and philosophical background and structure of our justice delivery system, whether they are students, academicians or just anybody with an interest in people and our body politic.

Do not be daunted by the size of the book. While it traverses a historical connect to the modern day, it can comfortably be read in sections over a lazy holiday or when time permits.