Judicial Reforms

‘Indianizing’ the Legal System and SC’s Views

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Judicial Reforms

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

What is the news?

  • This week, Justice S. Abdul Nazeer underscored the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.
  • Continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests, he said.
  • He emphasized the need for Indianization of the legal system to decolonize the Indian legal system.
  • He concluded that this colonial legal system is not suitable for the Indian population.

Background of the case

Then CJI P.N. Bhagwati in the M.C. Mehta Case way back in 1986 has 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.
  • We no longer need the crutches of a foreign legal order.
  • We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence.

Indianization of Judiciary

  • Last month, CJI N.V. Ramana called for the “Indianization” of the legal system to provide greater access to justice to the poor as the “need of the hour”.
  • CJI emphasized this as an adaptation to the practical realities of our society and localize our justice delivery systems.
  • For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court, the CJI clarified.

Major suggestions by CJI:

(A) Simplification

  • The simplification of justice delivery should be our pressing concern.
  • It is crucial to make justice delivery more transparent, accessible and effective.
  • Procedural barriers often undermine access to justice.
  • The Chief Justice said both judges and lawyers have to create an environment which is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

  • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

Major suggestions by CJI:

(A) Simplification

  • The simplification of justice delivery should be our pressing concern.
  • It is crucial to make justice delivery more transparent, accessible and effective.
  • Procedural barriers often undermine access to justice.
  • The Chief Justice said both judges and lawyers have to create an environment that is comforting for the litigants and other stakeholders.

(B) Alternate dispute mechanisms

  • The CJI said alternate dispute mechanisms like mediation and conciliation would go a long way in reducing pendency, unnecessary litigation and save resources.

Recent moves of Indianization

  • Supreme Court judgments show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.

(1) General principles laid by the SC

  • The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution.
  • Article 142 of the Constitution of India deals with the Enforcement of decrees and orders of the Supreme Court.

(2) Public Interest Litigation

  • The public interest litigation mechanism is truly Indian.

(3) Reference to Indian texts

  • Several judgments since the 1980s refer to the works of Manu and Kautilya.
  • In the privacy judgment, Justice S.A. Bobde (retired), 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”.

Issues with Ancient Texts

  • In the Sabarimala Case, the court pointed to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
  • It went on to hold that practices that legitimize menstrual taboos, due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement and the right of entry to places of worship.

Way forward

  • It is time for courts to wake up from their colonial stupor and face the practical realities of Indian society.
  • Rules and procedures of justice delivery should be made simple.
  • The ordinary, poor, and rural Indian should not be scared of judges or the courts.

 

 

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