THE HISTORICAL AND THE PRESENT ARCHIETURE OF THE INDIAN JUDICIARY BY - MAANYA JAIN
THE HISTORICAL AND THE PRESENT ARCHIETURE OF THE INDIAN
JUDICIARY
AUTHORED BY - MAANYA JAIN
ABSTRACT
India is a democratic nation governed by its constitution framed by the
leaders who were a part of the constituent assembly and worked on establishing
an independent judicial system in India. However, it must be noted that the
judiciary is not a new concept or an idea established by the Constitution. It
has been practiced since the pre-independence era and evolved for a long time.
The evolution of the judiciary can be traced to the pre-independence era,
post-British era through 6 phases and the modern-day judiciary. It is to be
noted that in the pre-independence era law was seen through the Vedas,
Dharmshastra, or the Manusmriti. The kings and the Brahman community started to
dispense justice to all and there was not any codified system of governance and
no uniformity that was present. Religion and law were often assumed to be the
same and there existed similarities between dhamma and dharma. In its first
phase, during the colonial period, Britishers brought a system of governance
slowly in India. At Surat, a factory was established which began the era of
British colonialism and a new beginning of the judicial system in India. In the
second phase, with gradual development, the establishment of a Supreme Court of
judicature in Calcutta under the regulating act was also seen its removal by
the settlement act. Later, in the third phase, the British government
established the Adalat system in its presidencies. However, in its later stages,
the Privy Council, and the High Courts developed. Also, under the Government of
India, in 1935 the Federal Court of India was established in Delhi. But the
evolution of the judiciary does not end here, with the advent of modernity and
with the touch of technology judiciary has started to evolve with the new
technology that can be experienced through E-courts or E- challans.
Keywords- Evolution, Judiciary, Pre-British,
British Era, Modern Judiciary, Technology.
INTRODUCTION
India has a democratic system of governance and follows an independent
judicial enactment system. The judicial system that we see today has not
developed just within a span of 70 to 75 years but has developed for a long. In
early ages, religion was quite associated with law and justice. The idea of
dhamma or dharma being the same began. Since religion and law were associated
together, religion determined what was morally right or wrong. Religion started
to decide what was correct through the application of religious texts and
principles like that of Manusmriti, Dharmashastras, Dharmashutras, etc. It was
seen in that religion guided the legal and social life of all and it was held
to be superior to anything else. Thus, the dispensation of justice was done through
what was written in religious texts. One of the major examples that can be seen
is that of the Manusmriti and Kautilya’s Arthashashtra. Along similar lines, in
the medieval period, the emergence of Islamic law that is Sharia law emerged.
Hindus and Muslims were guided by their religious texts. With the advent of
British rule in India and after they started to colonialize Indians, the
British East India Company started to establish its base and thereby slowly
began to establish a system of justice here, since there was no earlier
judicial system the Britishers began to work on it. The development or
the evolution of the judicial system began with six phases to what we see
today. Additionally, modernity has also begun to play an important role in the
same where courts have come into touch with technology leading to the emergence
of E- Courts, availability of judgments online or even analysis of cases
through journals are available today evidencing the judicial system to be at
par with technology.
RESEARCH PROBLEM
India is a vast country that has followed age-old judicial systems like
justice through the religious text or even through the king or the raja. With
change and gradual development, the judicial system fell into the hands of
Britishers, and they slowly developed a new form of judiciary that dispensed
justice with morality principles. Soon, with the advent of the modern world and
with new technologies emerging the courts too started to work on technology
that led to modernization of the Indian judiciary. The National eGovernance
Plan has also played an important role in the same.
The paper deals with two-fold research problems that are as follows-
- To evaluate whether
the historical development of the Indian judicial system is fruitful or not
considering both advantages and disadvantages of the same.
- To examine the
feasibility of the new modernized judiciary in India and to examine the
important aspects of whether it has been beneficial to the public and the
justice system.
The research aims to provide a deep and analytical understanding of the
research proposition and answer the same through various constitutional
provisions and judicial precedents. Additionally, the study hopes to contribute
to the existing knowledge of facts at present.
HYPOTHESIS
Despite, the judicial advancements and the historical evolution of the
judicial system, the system still lacks openness and transparency and all these
developments may not be beneficial to all. Critics claim that the modernization
of the judicial system has benefitted the only technologically advanced masses
whereas the others are left behind. In spite, of supporters arguing that
technological advancement is necessary, it is indeed a new way of development
for all. Thus, it is conjectured that:
- Despite, the intention
to advance in technology the Indian judicial system, still lacks
inclusivity for those masses who are left untouched by the technological
advancements.
- Additionally, the
evolution of the judiciary is necessary but too much evolution of the
system may lead to a lack of transparency and may cause a hurdle in the
judicial system and its advancements.
To evaluate the feasibility and provide insights into the historical
evolution of the Indian judicial system, the research study examines various
constitutional arenas and the latest evidence that includes court judgments and
academic insights. The research seeks to add to the developing idea of the
development of the judiciary in India.
ANALYSIS OF THE HISTORICAL DEVELOPMENT
Law is a dynamic concept. Therefore, it needs to be changed and updated
from time to time. The history of the Indian judicial system can be studied in
the chronological order of pre- British era and then the British era followed
by six phases that are a part of the development of what we see today. Besides
this, the development can also be seen from the lens of modernity and the
technological revolution. Technology has joined hands with judiciary and that
is evident from the system of E-courts or judgments available online through
SCC Online.
PRE- BRITISH ERA-
The Indian legal system can be dated back to 5000 years and has laid the
foundation for today[1].
But, does that mean that before this period there was no judicial system? The
answer lies in NO. During the pre-British era, there was no fixed system of
courts. However, the law was maintained through religion and law. Dharma or
dhamma were considered to be the same, but they are different. Law was disposed
by the king or the raja based on morality and what is considered to be
associated with righteousness according to the religious texts and the other
law books like the Manusmritis, Yajnavalkya, and many more. Even, the Vedas
were considered to be auspicious texts for guidance. The Rig Veda for instance,
was the oldest among all the Vedas and contains hymns. The Dharmashastras and
the Dharmashushtras have also laid the foundation stone for the existing judicial
system. Slowly, this system began to be governed by the Kazis and the Brahmins
in the case of Muslim and Hindu law respectively. Thus, before the coming of
the Britishers in India, the system of law and order was not uniform because
laws were inconsistent and every king or ruler used to change according to
themselves.
BRITISH ERA- The chronological development of the
British can be understood in the following six phases.
1. THE FIRST PHASE-
This was considered to be one of the first establishment of law in
Anglo-Indian judicial empire. The Britishers began with the establishment of
the Surat factory. With this establishment, an elementary system of justice
began in India. In the beginning, law was entrusted to non-legal officials and
non-professionals. Disputes were settled according to what was seen to be
morally correct by those Englishmen. Thus, the law was still uncodified and
this system was elementary. Since there was not any fixed system of law and
order, morality was the basis of justice. Justice lay in the hands of
unprofessional individuals who were not learned in law. These individuals were
those who were part of the East India Company and had little knowledge of law.
This position of entrusting of law to the hands of individuals not learned in
law continued for more than seventy years. A similar system of law was also
found in other presidencies such as Madras, Bombay will changes introduced in
their later stages. Consider the case of Madras where earlier it was a small
town but in the year 1661 it turned out to be a turning point in the history of
Madras. It now became a presidential town and through the passing of various
charters, a proper system of justice developed. Thus, the judicial system was
discharged through unprofessionalism and this required a new change because
since this system was elementary, it sooner began to discharge cases on biases
towards the White that can be evident from the cases of Raja Nandkumar, The
Patna case, and many other cases that did not became infamous.
2. THE SECOND PHASE-
This phase began with the landmark enactment of the Regulating Act of
1773 which eventually led to the establishment of the Supreme Court at
Calcutta. This phase began with the separation of powers from the judiciary and
the executive, The Supreme Court established in Calcutta was an important
source of evidence at the beginning of the establishment of legal institutions
in India. For the first time, an English court was established in India, with
professional English judges who were learned in civil law. No Indian law was
practiced here rather English law began to have its effect in India through the
Supreme Court of Judicature at Fort Williams. It was independent of the
executive and gave judgments as per the English law that was practiced in
England. However, there are still many cases of hostility between the Supreme
Court and the executive that can be traced from the cases of Raja Nandkumar.
-THE CASE OF RAJA NAND KUMAR[2]
In the infamous case of Raja Nandkumar, there occurred hostility between
the Supreme Court and then governor-general of India- Warren Hastings. Raja
Nandkumar was an influential man who worked on the aspect of revealing
Hastings's intention to take bribery from him. Thus, to save his position
Hastings forged the documents, and the trial was done in favor of the
governor-general. This case is considered to be the judicial murder of an
innocent man who became the victim of the hostility between the judiciary and
the executive. Thus, to cover this issue of differences of power between the
judiciary and the executive. The British government removed the Supreme Court
under the Settlement Act of 1781.[3]
3. THE THIRD PHASE-
This phase began with the establishment of the Adalat system in India in
various provinces and presidencies. The Adalats were governed by executives
called collectors. They played a significant role in the functioning of the
adalats as they were revenue collectors as well. They helped in discharging
justice as per the English law that was prevalent. Thus, the collectors played
a significant role in dispensing matters of civil and criminal justice in their
territorial jurisdiction.
4. THE FOURTH PHASE-
Since there were some issues still existing with the Adalat system that
prevailed in the third phase, the British parliament thereby passed the Indian
High Courts Act in the year 1861 with the establishment of High Courts in
presidencies such as Madras, Bombay, etc. These are the foundation stones of
what that we see today as the established High Courts. Through, the High
Courts, the Supreme Court again lost its importance and was abolished
subsequently. In the initial stage, the High Courts were established only in
the provinces of Bombay, Madras, and even Calcutta but later on they were
developed in various northern provinces as well.
5. THE FIFTH PHASE
This phase is another landmark phase of the emergence and evolution of
the Indian judiciary with the establishment of the Privy Council. The Privy
Council also known as the King in Council was set as the highest court of
appeal[4].
If in case of dissatisfaction with the High Court’s decision, the party can
appeal to the King in council, commonly referred to as the Privy Council. The
king headed the privy council and acted as the judge in deciding the matters
that were appealed. However, it must be noted that the Privy Council faced a
certain backlash since it was a proper court of appeal for cases. The dissatisfaction
or the drawbacks that the council faced are as follows-
- Firstly,
many Indians did not knew about the procedure of how to appeal in the Privy
Council.[5]
Law and case appeal in the higher courts is a complex task. Indians did
not have much knowledge about the same because the British legal system was
quite complex. Natives did not had much knowledge of the same and thus, several
appeals were left behind thereby one of the drawbacks.
- Secondly,
high expenses in appeal.
The privy council used to sit in England. The travel expenses and court
fees were kept high at the rate of 5 percent, which many Indians could not
afford. Thus, the idea of the Privy Council again faced a backlash that the
appeal there was not affordable for all.
- Thirdly,
only appeals above 50 pagodas were accepted.
Another restriction on appeal in the Privy Council was set to be at 50
pagodas. Only cases above this range were accepted as appeals in the King in
Council. In many cases, people whose case fell in this ambit could approach it
because of the above-stated reasons. This began with the setting of standards
for the judicial system in India. Also, with the establishment of the first law
commission under the fifth phase, new changes were seen. With the setting of
the first law commission in 1833, the codification of laws began in India.
Subsequently, with the establishment of the second and third law commissions,
various major laws were codified such as the Indian Penal Code and the Criminal
Procedure Code.
6. THE SIXTH PHASE-
The sixth phase began with the passing and implementation of the
Government of India Act, of 1935 that led to the establishment of the Federal
Court of India. The Privy Council now could not pronounce any declaratory
judgment. The Federal Court now known as the Supreme Court of India was given
vast powers on paper; however, they were not practiced to that extent in
reality.
ADVANTAGES OF THE HISTORICAL SYSTEM
The following are the advantages of the historical development of the
judicial system in India-
- The Judicial
system is made up to date.
This is beneficial because since the law is dynamic, it needs to be on
par with the law. Since, indeed, the old judicial systems may not be applicable
today. Society is changing and thus, the judicial system also needs to change.
- Establishment
of Judicial precedents
Through the historical judiciary system, we have established well-known
judicial precedents that have laid the foundation for various cases in the
future.
- Inclusion
of customary law
There once existed the use of customary law over the codified law in
India. Thus, there existed inclusion of customary laws that the cultural
identity of various communities.
DISADVANTAGES OF THE HISTORICAL SYSTEM
The mentioned below are the disadvantages of the historical system of
judiciary-
- No codified laws in the
earlier phases.
As there were no laws codified in the earlier stages, it was quite
difficult to maintain uniformity across the nation. Since justice was
discharged as per the morality what was Englishmen thought was right or wrong.
- Non-
professional judges
The Governor-General and the council were usually assigned to dispense
justice. Thus, justice was merely done based on what they assumed to be right,
and even made biased judgments. These judgments were partial to Indians.
ANALYSIS OF THE MODERN JUDICIAL SYSTEM (PRESENT
DAY)
The modern judicial system is on the 3-tier system of an independent
judiciary divided into the district courts, the High Courts, and the Supreme Court.
This does not end here; the judiciary has even evolved through the
technological revolution where the judiciary has joined hands with technology.
This is evident through the emergence of E-court, SCC Online, and even
databases available through various websites.
- The
Supreme Court[6]
The Supreme Court is the apex court of the country that has overall
jurisdiction over matters like advisory jurisdiction under Article 143,
original jurisdiction under Article 131, appellate jurisdiction under Article
132, issue writs (writ jurisdiction) like the Habeus Corpus, Mandamus etc under
Article 32, review jurisdiction as per Article 137 and even in matters of
granting Special Leave under Article 136.
- The
High Courts[7]
These courts are established in various states and union territories all
over the country. They exercise original jurisdiction, appellate jurisdiction,
and writ jurisdiction (Article 226) but they do not deal with issuing writs for
Fundamental Rights, however, only legal rights can be exercised.
- The
District Courts
The District Courts deal with matters in their district jurisdiction
only. They deal with small matters. They do not exercise any original, writ, or
appellate jurisdictions unlike the apex court and the High Courts.
LACUNAS IN THE INDIAN JUDICIARY- PRESENT DAY
The Indian judiciary even after several years of evolution and change still
has some lacunas that form a hurdle towards justice system in India, which denies
justice and equity to all and that also causes hinderance to the idea of
independence of judiciary. The following are the lacunas faced –
·
Case backlogs on the pillars of
Justice
Indian courts face chronic backlog of cases. With more than lakhs of
cases pending before the 3-tier system of justice, justice and equity is
denied. Delay defeats justice and equity. Another point to note is that the
ratio of cases to judges of courts is quite high, due to which even the judges
are unable to deliver justice to all Thereby, this is one of the biggest
loopholes faced by the India justice system.
·
Delays defeating Justice
Since, the justice system faces high rate of case backlogs there is
delays in delivering justice to all those who are in need. There even exists
cases that are pending since decades and still there is no judgment for them.
Delays defeats the idea of justice and equity. Imagine delay in cases of poor
people who do not have sufficient fees to pay advocate’s fees and even handle
this delay.
·
Judiciary: escapism for classes
In many a cases, it has been found that the justice is not given in an
efficient way rather the delivery of justice is done through biasness. It
defeats the idea for justice for all irrespective of class, caste or religion.
This is evident from the recent case of Porsche car accident, where the rich
brat was given bail and was told to write an essay on road safety. Had this
incident done by middle class man had the same procedure of justice been
followed. In the recent news, he was granted bail after he submitted his essay
to the court of law. This shows how these loopholes had denied justice to those
two adults who passed away in the accident in Pune.[8]
·
Lack of accountability and
transparency
This is evident from incidents that have been happening
in the court law. In the infamous case of Justice Ramaswamy who was framed
under the allegations of misappropriate funds. Justice Ramaswamy was found guilty
of misuse of his office. In another illustration, one of the judges of the apex
court was accused of providing gratification to a certain committee so as to
get a favourable result. He was later removed from his office. Another
illustration that can be presented is that against one of the Chief Justice of
India, a case of sexual harassment was filed. A committee was set up by the
Chief Justice himself, that eventually proofs lack of transparency and
accountability.
EVOLUTION WITH TECHNOLOGY- THE MODERN JUDICARY
The modern judicial system falls on the lines of technology where
judgments are delivered online, online databases provide for easy analysis of
cases, and the introduction of SCC Online and E-Courts. The idea of modernizing
the judiciary began with the eGoverance mission which was started in
collaboration with the Department of Law with the Supreme Court's mission[9].
It is the national mission to unify it with technology so that it can be
inclusive to all and that our judicial system is at par with new technologies.
Let’s take the example of E-court and the availability of judgments through
online databases such as SCC Online. Through E- Courts one can easily join
the virtual courtroom and present their case and arguments from anywhere. Also,
with the help of these E- Courts checking the date of the matter and even
checking the item no. has been made easier. Also, through the SCC Online
website, one can avail services for getting judgments of all Courts in India
with just a click away. These databases have made the understanding of law even
easier. With the judgments being available online through various databases, it
has made law inclusive for all.
ADVANTAGES OF MODERN JUDICIARY
Ever since modernity has hit the world it has
made things become easier. All the work is done within a short period.
Everything is available throughout the Internet. It has made the pace of the
world faster. Since most of the individuals are known to the world of
technology, especially law students it has made it easier for them to access
things easily. Case briefs, case analyses, and judgments all are available
through journals and other databases which has made the understanding of the
law and its concepts far easier. Also, with accessibility to various websites
and other databases through technology, the world has been connected. It has
benefitted all including legal professionals. Also, adoption of tools like SCC
Online has made legal research easier, it provides for comprehensive study of
legal content that can serve as a secondary source and enhance research skills.
DISADVANTAGES OF MODERN JUDICIARY
One of the major disadvantages of the modern
judiciary lies in availability and using these key tools is not an easy task[10].
Many people who come from backward areas face the issue of using these tools
efficiently. Law students need guidance and help in their earlier phase to know
the step-wise process to access these resources at their best. Thus, those who
are not well-equipped with technological knowledge cannot avail themselves. In many
a incidents, it has been found that the justice is not given in an efficient
way rather the delivery of justice is done through biasness. It defeats the
idea for justice for all irrespective of class, caste or religion. This is
evident from the recent case of Porsche car accident.
CONCLUSION
In conclusion, the Judiciary is an age-old
system that has been providing justice and equity to its citizens. The
architecture of the Indian judicial system is as old as 5000 years and has
developed for a long. The architecture has been well developed throughout the
pre-independence and the British period also called the post-independence era.
The British period witnessed a total of six stages that produced a huge
judicial system in India. The pre-independence era witnessed the delivery of
justice through customs and dharma that is religion. During that era, dharma
and dhamma were associated. People were driven by their religious laws backed
by religious texts, for instance, the Manusmriti, the Yajnavalkya, and many
more. Law is a form of social engineering that needs to be changed as per
society. To evidence this the mentioning and evaluation of the other six phases
of the judiciary are important. The evolution began with the establishment of
the Surat factory and an elementary system with no professionals learned in
law. Then the Britishers for the first time established the Supreme Court in
India under the Regulating Act of 1773. Eventually, with the beginning of the
second and third phase, the judicial system advanced with the establishment of
adalats and the circuit courts under the judicial plans of Lord Cornwallis.
With issues ending up with the adalat system, another change in the architecture
was seen under the High Courts Acts with the establishment of High Courts in
presidencies, with the beginning of the next phase a Privy Council also
referred to as King in Council was made to hear appeals from India both
criminal and civil. Ending with the sixth phase, we began with the Government
of India Act, of 1935 which led to the establishment of the Federal Court of
India also called the Supreme Court in the present day. Technology combined
with modernity has advanced judicial proceedings which is evident from examples
like the E-Courts, Law Journals, SCC Online, etc.
HYPOTHESIS ANALYSIS
After a thorough evaluation of the research
problem, hypothesis, and data, it is clear how the judicial architecture of the
country is and how has it developed so far. With the analysis of the
pre-independence, the British era, and the modern timeline, it is understood
how our judiciary dates back to 5000 years now with a touch of modernity. With
these advancements and evolution, we still face certain lacunas, lack of
transparency, and several other drawbacks. Noting hypothesis 1 correctly
denotes that inclusivity is lacking when there is technological development in
the judiciary. Not everyone is well equipped with technological gadgets, so
that might be a drawback in the area. Technology has not equipped all it has
left some masses out of this, that is those who are untouched by the judiciary.
For them the introduction of such new tools like the law journals, searching
and accessing cases is of no use. Thus, the first hypothesis is proved to be
correct. Critics claim that this has caused a hurdle to justice for all since
not everyone has benefitted from it. Also, there is a lack of transparency
since cases go on for decades and thereby lack of transparency and there has
been no effort to tackle this in any fruitful manner.
The second hypothesis, mentions the necessity
of evolution but that has now been shadowed by a lack of transparency that has
overshadowed the idea of equity and justice to them. Members of the judiciary
and judicial service sometimes cause haphazard in delivering justice due to
lack of transparency and lack of accountability. This is evident from incidents
that have been happening in the court of law. In the infamous case of Justice
Ramaswamy who was framed under the allegations of misappropriated funds.
Justice Ramaswamy was found guilty of misuse of his office. In another
illustration, one of the judges of the apex court was accused of providing
gratification to a certain committee to get a favorable result. He was later
removed from his office. Another illustration that can be presented is that
against one of the Chief Justice of India, a case of sexual harassment was
filed. A committee was set up by the Chief Justice himself, which eventually
proofs lack of transparency and accountability.
REFERENCES
·
Constitution of India
·
M P Singh- Indian Legal &
Constitutional History
·
Jain- Indian Legal History
·
By P Murti [2021] - Evolution
problems and challenges in the Indian Judiciary
·
The Indian Express
[1] Indian Judicial System, NIOS
[2] Surbhi. (n.d.). Conflicts
of dual judicature: Trial of Raja Nand Kumar. Legal Service India - Law,
Lawyers and Legal Resources. https://www.legalserviceindia.com/legal/article-1457-conflicts-of-dual-judicature-trial-of-raja-nand-kumar.html#google_vignette
[3] Jain, M. P. Outlines of Indian Legal
History
[4] Singh, M. P High Courts and the Privy
Council.
[6] The Indian Constitution
[7] The Indian Constitution
[8] Das, N. (2024, July 9). Pune Porsche
crash: here’s what we know so far. The Indian Express. Retrieved July 9,
2024, from https://indianexpress.com/article/cities/pune/pune-porsche-crash-what-we-know-9346927/.
[9] Satish, S. (2023, October 10). History
of Indian judiciary. Clear IAS.
https://www.clearias.com/history-indian-judiciary/
[10] Murti, P. Retrieved July 9, 2024, from
https://heinonline.org/HOL/LandingPage?handle=hein.journals/juscrp3&div=246&id=&page=.