SC’s views on ‘Indianisation’ of the legal system

Context:

At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.

Relevance:

GS-II: Polity and Constitution (Indian Judiciary)

Dimensions of the Article:

1. Views of SC Judges on ‘Indianization’ of Judiciary
2. Understanding what the judges meant by “Indianizing” the judiciary
3. Need for “Indianizing” the Judiciary
4. Way Forward

Views of SC Judges on ‘Indianization’ of Judiciary

• In September 2021, the Chief Justice of India had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
• In December 2021, Justice S. Abdul Nazeer spoke about the need to rid the judiciary of ‘the colonial legal system’ which is detrimental to national interest. He called for embracing the “great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India”.
• In 1986, the then Chief Justice of India P.N. Bhagwati, had said that we cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. He said that we have to build up our own jurisprudence.

Understanding what the judges meant by “Indianizing” the judiciary

• Chief Justice of India, N V Ramana, clarified that, Indianization means the need to adapt to the practical realities of our society and localise our justice delivery systems. 
• Our judicial systems practice rules which are colonial in origin and hence, may not be best suited to the needs of Indian population. Colonial system of judiciary was established more or less from the master-servant point of view and not from the public’s point of view.
• 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.
• An example for such barriers could be language – parties from a rural place may feel out of place in the court as they do not understand the arguments or pleadings which are mostly in English. Also, judgments have become lengthy, which further complicates the position of litigants.

Connecting Indianization of Judiciary to Indian History

• Great lawyers and judges are not born but are made by proper education and great legal traditions as were Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
• Several judgments since the 1980s refer to the works of Manu and Kautilya.
• In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.
• However, the SC has also referred to the ancient texts for the sake of deviating and passing orders against the ancient policies:
• In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
• In the Sabarimala case, the court points to the negative side/impact of the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings” – and went on to go against such sentiments in its judgement.

Need for “Indianizing” the Judiciary

• India has the oldest judiciary system in the world dating back to 5000 years known for effective, trustworthy and democratic jurisprudence. But most of the statements in judgements nowadays are taken from western jurisprudence while India’s own ancient system of delivery of justice is given much less recognition.
• Malimath Committee (2000) on reforms in the Criminal Justice System of India (CJS) submitted its report in 2003 that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
• The All-India Judicial Services (AIJS) was first proposed by the 14th report of the Law Commission in 1958.
• The strength of judges is increasing but the number is not up to the desired level as it is in European countries. There are more than 4.5 crore cases pending in the judiciary and to solve them, currently India has only 19.78 judges per million people (much lower than required).

Way Forward

• The simplification of justice delivery should be our pressing concern. It is crucial to make justice delivery more transparent, accessible and effective. “The common man should not be apprehensive about approaching the courts and authorities.”
• The use of Indian/regional languages in courts at grass-root level becomes more significant in a sound judicial system for a country like India.
• There is a need to strengthen the legal outreach programmes along with improving the judicial infrastructure. The top court has decided to launch a country-wide legal awareness mission in the coming week. Lack of proper infrastructure and funds curtail the activities of legal services institutions, reducing the number of beneficiaries.
• Alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources. The notion that ordinary people want black robed judges, well-dressed lawyers in fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pains, want relief and they want it as quickly and inexpensively as possible.
• 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 in the judiciary can effectively take place unless it is inclusive of women.

-Source: The Hindu