Oddities Of Indian Legal System

Most of the current Indian practices, including the Civil Procedure Code and the Criminal Procedure Code were also made in the colonial times. While they do protect the individual from the state to some extent, they often lead to massive delays, and are often mired in cumbersome procedure, making the system capable of delivering neither justice nor efficiency.
Oddities of Indian Legal System
Source - Wkimedia Commons (https://commons.wikimedia.org/wiki/File%3ACourt_adn_lawyers.jpg)

A Mercedes Benz on the dusty village paths!

Indian legal system is like a Mercedes Benz driving on a dusty path crowded with cattle and humans moving in various directions.

The sophisticated systems and procedures of the Indian legal system are often at odds with the ground realities in which they have to deliver results. Many of its principles and ideologies are actually meant for equally sophisticated conditions, which are sadly not there to help it become effective.

Features of Indian Legal System

The modern Indian legal system is based on the Common law system inherited from the British during the colonial era. As

a system, it is the same as that followed in many developed countries, including United States and Britain, with whom it shares a lot of similarities in its basic legal structure.

In practice, Indian legal system is poles apart from its theoretical conceptualization, with several features that would be intolerable and incomprehensible in Britain or United States. Some of these oddities arise from the imperfect functioning of the system, while many of its peculiar characteristics derive themselves from the incompatibility of this system with the long standing traditions and culture of Indian society.

Characteristics of Indian Society that Affect the Legal System

The traditional Indian society did not depend too much on formal processes of law or a written code. It was based largely on the age old social values and the self discipline based on moral and ethical values of the society, combined with family and peer pressure that trained and forced the individual to follow them for the sake of social acceptability.

The joint family and its extensive bonds with other families meant that in an Indian village, everyone had some relationship with everyone else, creating a universal social obligation to be fair and reasonable to each other. Disputes were not unknown, but centred mostly around family feuds, and could be easily resolved by the PANCHAYAT - the group of elderly wise men of the village, in a very informal way without any formal counsels, complex procedures or delay. Mostly, the approach of panchayat would be reconciliatory, and though justice delivered in this manner was not perfect, the issues hardly deserved a more complicated process.

The British Influence & Resultant Incompatibilities

With the advent of British rule, the British Government established its own courts, following the common law system and a formal procedure. The CODE OF CIVIL PROCEDURE and the CRIMINAL PROCEDURE CODE were promulgated. It was perhaps the most advanced legal system of the world, but it also created a severe incompatibility with the local society that was subjected to it.

The British imported the institution of modern courts to India, without creating the legislative institutions that would have ensured that the laws and the procedures made for the people were in tune with their capacity and needs. The result was a complicated legal system suddenly imported from an alien world, with vastly different levels of education, awareness and values.

It was like an imported Mercedes Benz that few could drive or afford a ride in!

It is no surprise that the only ones who immediately benefited from this modern legal system in British India were the British educated counsels called 'Barristers'. They were few and represented Princes and industrialists. In late nineteenth and early twentieth century British India, the most paying profession that of a lawyer. It is no accident then, that all political leaders in the freedom struggle, including Gandhi and Nehru, were connected with the practice of law in one way or another.

In the early days, the law was practiced in Urdu language; later it shifted to Hindi and other local languages. In the higher courts of law, it has always been practiced in English. The formal process of law, petitioning and application required a huge clerical workforce, and encouraged the growth of clerical staff and education. For most rural Indians, illiterate and unfamiliar with these processes, it was a big challenge to even file a petition or an appeal. The Indian literature of the early twentieth century is full of narrations as to how poor rural families who attempted to seek justice through this system ended up as destitute who had lost everything to that blunder.

Post Independence Developments

After independence, the cost of litigation has gradually come down, but the volume of litigation has exploded. Unfortunately, for the politicians and the bureaucracy which immediately occupied the seats of power after independence, judiciary was more a hindrance in their monopoly of power. The result was inadequate number of courts and judges that lead to their overburdening with litigation far beyond their capacity.

Consequent delays in disposal of cases, both criminal and civil, is the single biggest bane of Indian legal system. Sometimes, by the time a case comes to the stage of disposal, the parties have either grown old, lost


interest or even expired, making the whole process a big waste of time and resources.

These overburdening courts are like the Mercedes Benz that was being used like an old six tyre truck on nonexistent roads!

Vested Interests : Counsels & Corruption

The counsels are also to blame in this process. The counsels of both sides stand to gain by the delay of disposal, and at times are even hand in gloves with each other, to prevent the finalization of cases. There are complaints about corruption, particularly the lower court staff that is involved in fixing dates for hearing. Delaying the hearing or TAREEKH is a business. Even the Supreme Court of India, which is the apex court of the country, has taken note of these flaws and keeps trying to find ways to dispose the backlog of cases and remove other shortcomings.

Impractical Expectations of Evidence

Another oddity of the Indian legal system is an over-emphasis on the onus of 'proving the crime beyond all possible doubt', which has often lead to laxity and a liberal attitude on the part of the judges and resulted in a very low rate of conviction - a factor that has emboldened criminal elements, and indirectly helped in spread of crime in the society. Often the principles of natural justice are carried to the extreme, and the judges, instead of being saviours of justice, have been reduced to being mere referees in the game of legal one-upmanship, where oration and legal argumentation often takes precedence over fairness and justice. All these have lead to repeated criticism of the legal system and its failure to become an effective deterrent to crime.

The Pros of Indian Legal System - Unexpected Achievements & Proactive

However, not everything is wrong with the Indian legal system. The emphasis on principles of natural justice provides very strong protection of rights to the people. The courts, which function outside the control of legislature and executive, are largely free of political influence and the power of contempt given to the courts have ensured that government machinery is disciplined before them. Every Indian state has a High Court and above them is the Supreme Court of India - the apex court of the country. The judges of the High Court and the Supreme Court are constitutional authorities, outside the control of government, the Prime Minister and the Cabinet, and so can function independently.

The higher judiciary has strictly maintained its powers and autonomy, and in the process, given rise to another source of 'oddity' to the Indian legal system - in the form of a proactive judiciary that is often more than willing to take up the responsibility of governance that one would normally ascribe to the executive only. The results are several landmark judgments on public issues, interfering and giving directions in matters like air pollution, illegal construction, and so on, which are applauded and frowned upon at the same time.

Holding its own Against the Politicians in Power

The higher Indian judiciary has often had a conflict with the political bosses, and so far they have reigned supreme. In 1975, a High Court cancelled the election of Ms. Indira Gandhi, the then Prime Minister of India, to which Ms. Gandhi retaliated by imposing the 'emergency'. The result was a massive defeat in the next elections for her ruling party - the Indian National Congress - for the first time since independence. Since then, never again have politicians attempted to undermine judicial independence in India. While the courts struggle with backlog of pending cases, higher judiciary has kept the confidence of the common man in legal process intact with its assertion of authority.

The Indian legal system's Mercedes has thus doubled up as an armored combat vehicle to protect the democracy and empower the common man to fight for his democratic rights!

The Challenges Ahead

In years to come, the Indian legal system will need to tackle the delays in disposal of cases, make the process of seeking justice simpler and reduce the cost of administrating justice. It will also need to find ways to get more convictions, so as to create an effective deterrent against crime.
 



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