By Justice Kamaljit Singh Garewal
Are we not Indianised enough for the chief justice to call for Indianising the legal system? Chief Justice NV Ramana recently said:
“Indianisation of the country’s legal system is the need of the hour and it was crucial to make the justice delivery system more accessible and effective, the courts need to be litigant-centric, and the simplification of justice delivery should be the pressing concern. Very often the justice delivery poses many barriers for the common people. The working and the style of courts do not sit well with the complexities of India. Our systems, practice, rules being colonial in origin, it may not be best suited to the needs of the Indian population. There was need to adapt to the practical realities of our society and to localise our justice delivery system.”
There are two ways to interpret what the chief justice said. Some feel that the time has come to stop speaking about the achievements of our judiciary, our great public interest litigation, our constitutional morality and the strength of the Constitution. As long as quick, effective and inexpensive justice does not reach the common man, boasts about our grand constitutional scheme may be taken with a pinch of salt. There are others who feel that we have a very strong judiciary, therefore, everything the judges do is high-class justice being efficiently delivered to the vast multitude of our countrymen. The blame for the slow speed of the judicial process lies with the executive which does not clear appointments in time, they say.
The reality is somewhere in between. The legal system in every nation is designed to deliver quick, first instance justice to the people, and at least one appeal, while the constitutional system watches over it. The Constitution is the fundamental law of our land, and its basic structure like separation of powers, independence of the judiciary and primacy of rights are its pillars. The Constitution often steps in to protect the rights of the citizens and in this way also delivers first instance justice to the justice seeker.
Our Constitution is based on foundations provided by the Government of India Act, 1935, a product of the British Parliament and the result of the Simon Commission and the Round Table Conferences. Admittedly, this piece of imperial legislation for the country was not made in India, but was the law which laid the basis of the Constitution in 1950. The 1935 Act created a federation and introduced provincial autonomy, though only in the British provinces. The princely states were given the option to join the federation and come under the 1935 Act, but they stayed out. In this way, the people belonging to the princely states—about 88 million (23% according to 1941 census)—were left out of the constitutional scheme under the Government of India Act, 1935. There were 565 princely states which joined India after 1947, without having been a part of British India and subject to its legal system.
The drafting of the Constitution by the Drafting Committee took three years, but they did not Indianise it because they relied too much on the scheme of the 1935 Act, and some provisions of the constitutions of Great Britain, the US, Canada and other countries. Let us presume that the basic features of the Constitution have saved our Indianess. But what was not considered by the Founding Fathers or by later parliaments and what is now of concern is whether our legal system is Indian enough or not.
The British had put together the system of laws to rule the jewel in their crown from 1857 onwards, and we adopted this legal system as a measure of continuity, without seriously considering whether it would suit us. It is here that the foreign origin of our legal system is somewhat worrying. Our basic laws and procedures are not Indian in origin. The Civil Procedure Code of 1908 vintage has been amended time and again, but its basic structure was inherited from the British. Similar is the case with the Contract Act 1872, the Penal Code 1860, the Evidence Act 1872, the Code of Criminal Procedure 1898. These are the laws which form the basis of our legal system, but can it be honestly said that these laws are “Indian”?
The Code of Criminal Procedure, 1973, dominates the criminal justice system and is a replica of the 1898 code, with a few cosmetic changes. It was not at all an attempt to Indianise. This Code has been made to look like a completely new procedure Code, which it certainly is not. This is rather unfortunate because this is “the procedure established by law” which stares the citizen in the face when his life or liberty is taken away by the State. A poor villager in a remote area, arrested not knowing why, is then taken before the magistrate, without a lawyer to assist him, and then sent off to police or judicial custody, after which he must start seeking bail. If he is given a copy of the Code, he shall be bamboozled, and the foreignness of the procedure will devastate him. Therefore, the need to Indianise our legal system is urgent. The question is how should this be done.
The State is mandated to provide legal services to the citizen under Article 39A. We have district and state legal services authorities functioning for a long time. Their activities should be expanded and lawyers must step forward to make use of alternative disputes redressal (ADR) available through legal services. May be some form of incentive should be given by the State to lawyers if they are able to get disputes sorted out through ADR and save judicial time and resources.
One goes back again and again to rural and small town India to really come to grips with the need to Indianise the legal system. The first thing that comes to mind is that legal education is not conducted in the language spoken by villagers or small townsmen. The legal system is, therefore, alien to them. The disputes which arise, and for which the legal system has been designed, can be satisfactorily resolved only in the language of the parties.
Simplify the legal system to Indianise it should be goal. This can be achieved by simplifying the language of law and the judgments of courts. We must accept that our pleadings and judgments are too lengthy and often prosaic. Court documents are difficult for an ordinary person to understand. And what is worse is that they are mostly in a language which is foreign to him. Laws of evidence are hyper-technical. Unfortunately, we did not switch over to Indian languages after Independence and did not allow them to develop in the legal field.
Indianisation of the legal system must require programmes to develop regional languages for court work. The world over, legal language is being simplified to bring clarity, precision and brevity. A vibrant movement has sprung up in the English-speaking world to adopt a new language which is called plain, not plain English, but just plain. Of course, German and languages which have Germanic roots like Dutch, Swedish and Norwegian are very closely related to Sanskrit and are considered the best for legal work because they are simple and not highbrow like English is with itsbackground of Shakespearean literature.
If the legal system is to be truly Indianised, it must be decentralised as well. Our judiciary is far too urban-centric. No one talks about the legal problems of the common folk because there is a woeful disconnect. Therefore, there is a need to strengthen district courts for Indianising the legal system. This can be done by enacting a law conferring Article 32(3) jurisdiction to district judges. Even forming regional benches of the Supreme Court to hear appeals would save routine civil and criminal litigation from crowding the constitutional wing of the apex court.
Trial court judgments in criminal trials are usually unnecessarily long, whereas all that the trial judge is required to record is a finding of guilt or innocence, and his reasons.
Lastly, the draftsmen also must carry some blame. When they have the choice between using short sentences and lengthy paragraphs, they give us the latter. A classic example of bad drafting is the land acquisition law passed in 2013. Why such a lengthy title was used when there was a choice to call it the Land Acquisition Act, 2013 and why no one in Parliament objected to this legislative abomination shows that we are not ready for Indianising the legal system through simplification, at least not yet.
Simplify first; the legal system shall Indianise automatically, otherwise it may perish.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York