THE JUDICIAL SYSTEM IN INDIA *

NITTOOR SREENIVASA RAU

Chief Justice of Mysore

The available historical material shows that governmental administration of a well-developed society had been in operation in India for many centuries before what may be called the modern age. Several empires held sway over large parts of this country and for very long periods. Administration of justice was necessarily an integral part of governmental functions, and it would appear that, by and large, the requirements of justice were satisfied, no doubt in varying degrees, but, on the whole, comparable in their effectiveness to systems prevailing at the time in other parts of the civilised world.

According to the Hindu Dharmasastras and works on Hindu Polity there were Courts and Judges, the King in person representing the apex of the system, though even he was not placed above the law. Under the Moghuls also the ruler was the highest judicial authority. It is the Muhammadan system of jurisprudence and judicial administration that was prevailing over the larger part of this country when the British began to build their empire here, though the Hindu system also was in operation in sizable areas and, even in areas under the sovereignty of Muhammadan rulers, their system accommodated the functioning of Hindu rules of law to a limited extent. I do not propose, however, to dwell on these systems, since the judicial administration of today is principally a product of British rule, and represents a total departure from the systems previously prevailing, except in regard to what may be called the personal law of Hindus and Muhammadans, viz., the law governing succession, inheritance, marriage, maintenance and guardianship.

As is well known, the British began to exercise governmental powers in the three Presidency towns of Calcutta, Bombay and Madras, and Courts were established there, which functioned in the same manner as the High Court in England. Later on, the East India Company, which was the instrument of British domination in India, acquired the Dewani of Bengal, Bihar and Orissa, which virtually meant the right and responsibility of administering that territory. In the Courts functioning in these areas the law administered was the law then prevailing in this country. Similar appears to have been the position in other areas acquired by the British. Ultimately, when the British Sovereign took over the administration of the country into her own hands from the East India Company after the rebellion of 1857, High Courts were established at Calcutta, Madras and Bombay, which, together, had jurisdiction over the whole area occupied by the British. These High Courts continued to exercise original jurisdiction in respect of the Presidency towns, while they functioned as the highest appellate Courts in respect of the whole territory under their respective jurisdictions. By this time the British Courts had been functioning in the Presidency towns for over a century and had brought with them English traditions and the English Common Law. Their main features were the independence of the judiciary and strict impartiality, not only between man and man but between those in authority and the subjects. These characteristics manifested themselves markedly even in the functioning of the earlier Courts, Recorders’ Courts, Mayoral Courts and the Supreme Courts. There are instances of the Courts in Bombay and Calcutta asserting the supremacy of the judicial process over the executive, and, when the latter failed to obey the Court’s writs, the Judges brought the Courts to a standstill rather than allow the executive to show disrespect. It is significant to notice that in some of those instances such assertion of judicial independence was made in vindication of the rights of Indians as against the British who were in authority. The High Courts which, as I have mentioned above, were established in 1862 inherited and continued those traditions, with this difference that their sway extended over all the areas under British rule. I may also mention that one of the significant landmarks in the history of the Calcutta High Court is a case in which the first Chief Justice of that High Court, Sir Barnes Peacock, punished a high-placed countryman of his for contempt of Court and in vindication of the honour of an Indian colleague of his, Justice Dwarkanath Mittar.

I should at this juncture mention that, while in other fields of administration it took many years for Indians to attain high positions, Indians were appointed as Judges of the High Courts almost from the commencement. Their number was very small and increased only with slow gradualness. They were men of high distinction and acquitted themselves in the discharge of their duties in the highest traditions of the Bench. They made a significant contribution to the development of law in this country. In addition to being well versed in the customary law of this country, they displayed a mastery of the British system of law as also of the Continental systems. It may also be mentioned with special emphasis that no distinction was ever allowed to be made between Indian and British Judges, and it stands to their credit that, during the whole period of British rule, all the High Courts, by and large, maintained the independence of the judiciary. This is a matter of high importance, since it was quite possible for the British Judges to have functioned on the basis that they were here to aid, the consolidation of British power, and acted in promotion of that aim. But many of them were Barristers of distinction and could not think of acting in any other manner than in conformity with the tradition in which they were brought up. This naturally influenced all their colleagues, many of whom came from the Civil Service.

The Indian Judges who came from the Bar were brought up in the same tradition, since the Bar which developed in this country patterned itself after the British model. This tradition of independence established and built up by the British Judges, it seems to me, was the crucial factor in establishing the virtually impregnable position of the High Courts in this country. Many of these Judges were men of great legal ability and insight. Since, along with other features of the British Judicial system, the theory of precedent is a part of the jurisprudence of this country, the decisions given by Judges of this period are of seminal importance and are worthy of close study even today. I think it is appropriate to mention here that exactly a hundred years have elapsed since the establishment of these Presidency High Courts. The Bombay and Calcutta High Courts celebrated their Centenaries a short while ago and the Madras High Court will celebrate its Centenary on the 6th of next month. These are undoubtedly historic events worthy of commemoration.

Judges and Courts have to administer the law of the land and, however competent and independent the Judges may be, the system of law is equally important. Prior to the time of the establishment of the three High Courts, the body of law in operation in this country was a welter of confusion. As I have already mentioned earlier, the mofussil Courts, i.e., the Courts outside the Presidency towns, purported to administer the Muhammadan law and the Hindu law pertaining to all matters. These did not lend themselves to the degree of precise treatment to which we of today are accustomed. To some extent these were modified and supplemented by laws or regulations, as they were called, promulgated by the three Governments at Calcutta, Bombay and Madras. There was no uniformity amongst these regulations. The task of rationalising the position occupied the attention of the authorities both here and in England, and three successive Law Commissions were appointed for the purpose. They did remarkably good work. The first fruit of their labours was the Indian Penal Code which gave statutory form to the Common Law of England relating to crimes, with some modifications to suit the conditions of this country. It is a remarkable piece of work and has stood the test of time and has been adopted as the basis in other countries too. Not only did it humanise the archaic and harsh laws in operation in this country, but it represented some improvement even over the English Common Law. The other important products of the labours of the Law Commissions were the Law of the Transfer of Property and the Indian Contract Act. While the former did not incorporate the more technical features of the English law relating to real property, it reflected the basic principles. The Contract Act gave statutory form to the Common Law principles of the Law of Contracts with suitable modifications. As, to some extent, commerce, both national and international, had developed in this country, the Negotiable Instruments Act also was promulgated. On the procedural side, the Civil Procedure Code, the Criminal Procedure Code, the Evidence Act and the Limitation Act were also drafted and promulgated. These also were largely based upon the system in operation in England. All these enactments resulted in the creation of a uniform body of substantive and procedural law operative over the length and breadth of the land and greatly conduced to the process of integration in the administration of law. This process was furthered by the circumstance that the highest Court of appeal was the Privy Council, which, by its decisions, brought about unity in the interpretation of the various questions of law it had to deal with. Tribute must be paid at this stage to the admirable way in which the Privy Council performed its functions. It has left us a legacy of case-law which continues to be an invaluable aid to the administration of justice in this country.

It is no doubt true that the above-mentioned body of law was, technically speaking, in operation only in that part of the country which was known as British India and not in the Indian States, i.e., the principalities under Indian Rulers. These Rulers enjoyed internal sovereignty. But these States also were influenced to a greater or less extent by what was happening in British India in this field. Many States promulgated corresponding laws almost in identical terms, though in several of the States archaic laws continued to be in operation in some measure. There was a great variation amongst these States in the functioning of the judicial organ of Government. While in some States the judiciary functioned with much the same efficiency, integrity and independence as in British India, in some States arbitrary rule continued to hold sway. Thus, by the time India attained Independence, it may be stated that, in a very substantial measure, a judicial system firmly rooted in British traditions was functioning and administering laws derived from principles governing the English Common Law. But one significant feature came into existence, which represented a departure from the British system, even prior to Independence. That was the result of what may be roughly called the Federal set-up of the Government of the country under the Government of India Act of 1935. Under this Act a Government which had been mainly unitary became mainly federal with the attendant division of powers between the Centre and the Units. Accordingly the Federal Court of India was ushered into existence. But the Federal Constitution operated only in respect of the British Indian part of India, as the Indian States under the rulers did not join the federation. The Federal Court, therefore, functioned only in respect of British India. After the Indian Independence Act was passed by the British Parliament, India became a Dominion on August 15, 1947. Britain ceased to have anything to do with the governance of this country and the Privy Council ceased to have jurisdiction over the Courts of this country.

This was the position in regard to law and administration of justice when the Indian Constituent Assembly set its hands to framing the Constitution. Several alternatives were open to the framers of the Constitution in regard to its form and content. They could have started with a clean slate making a complete break with the past and brought into existence a brand new Constitution incorporating the best features of other systems and improving on them. They, however, took the wise course of incorporating in the Constitution all that was best in the existing system. It is not my purpose here to deal at length with all the features of our Constitution, but to confine my attention to the judicial limb. It is well known that the Constitution is substantially federal in structure and based on the parliamentary system of Government both in the Centre and in the States. The President in the Centre and the Governors in the States occupy the position of constitutional heads. The ministries, both at the Centre and in the States, are responsible to the respective Legislatures. Thus, we do not have division of Powers between the executive and the legislature, of the pattern that exists in the United States. I have already mentioned that our Federation is one artificially created over a pre-existing Unitary structure. In other words, we did not start with a number of independent States which yielded part of their sovereignty to a Union Government in the general interest. The federal structure was imposed by the Government of India Act, 1935, over the pre-existing Unitary Government. We do not, therefore, find each State having its own Constitution. The one Constitution is the constituent law both for the Union and for the States. The residuary power remains with the Centre. This, however, is not a matter of crucial importance since the topics are almost exhaustively enumerated and allocated and, in addition to a State List and a Union List, there is also a list of concurrent subjects. The allocation of powers implies the need for a tribunal to decide in the event of dispute. That function is performed by the High Courts and the Supreme Court. It is a distinguishing feature of the judicial system under our Constitution that, unlike in the United States Constitution, we do not have two hierarchies of Courts–Federal Courts and the State Courts. All the Courts have jurisdiction over all justiciable matters excepting those which are withdrawn by the appropriate legislatures from the purview of the ordinary Courts and entrusted to administrative tribunals. We thus have an integrated judicial system for the whole country, though in a sense the High Court of a State and the Courts subordinate to it are an integral part of the governmental machinery of each State. It may, therefore, be stated that the High Court of each State combines in itself, in terms of what obtains in the United States, the functions of the State Supreme Court and the Federal Circuit Court of Appeals. The Supreme Court of India is the highest appellate Court not only in regard to federal and constitutional matters, but in respect of all justiciable matters. In functioning in this manner its powers are more or less like those exercised by the Privy Council. If we regard each of these Courts as really consisting of two courts–one exercising jurisdiction in respect of state subjects, and the other in respect of federal subjects–it would be seen that, in principle, the judicial system here is analogous to what obtains in the United States. But there is one other matter of signal importance to which reference must be made. It is that our Constitution contains provisions for safeguarding the Fundamental Rights of citizens, like freedom of speech, free association, freedom of life and liberty, freedom to exercise one’s profession, freedom of movement, freedom to reside anywhere in the country and freedom in relation to property rights. All these freedoms are subject to certain qualifications in the public interest, such qualifications being greatest in respect of the last-mentioned right. The High Courts and the Supreme Court are made the guardians of these rights. This matter was regarded by the framers of the Constitution as of such vital importance that they provided for direct access to the Supreme Court in regard to these Fundamental Rights. I should not fail to add that these provisions are generally derived from the Bill of Rights of the United States Constitution. It will thus be seen that full recognition is given to Courts performing the essential task of judicial review of administrative actions and of legislative measures and of safeguarding fundamental liberties.

In order that the judiciary may function with the requisite independence, the Constitution provides for the fixity of the tenure of the Judges of the High Courts and of the Supreme Court. They cannot be removed except by an address to Parliament. There are no elective appointments to any Courts, nor do such appointments require the confirmation of any Legislative body or committee. As far as the Subordinate Judiciary is concerned, the general pattern is that we have Civil Courts at three levels and Criminal Courts at two levels. This is, by and large, the position over the whole country. By way of, illustration, I may give the position in this State. We have, at the lowest level, Courts of Munsiffs, whose territorial jurisdiction extends over some two or three thousand square miles and whose pecuniary jurisdiction is of the order of about Rs. 5,000. At the next level we have Subordinate Judges’ Courts, which deal with original Civil work of larger magnitude, and, generally speaking, over the territorial areas of the revenue districts. Many of these exercise appellate powers also. At the next level we have District Courts, which are the principal Courts of original jurisdiction in the District and with unlimited pecuniary jurisdiction. They also function as Courts of appeal in respect of the decisions of the Courts subordinate to them. On the Criminal side, the Magistrates Courts are of the lowest denomination and deal with offences which may roughly be described as corresponding to misdemeanours. They also conduct preliminary enquiry into felonies and commit the accused in such cases for trial in the Sessions Court if a prima facie case is made out. The Court of Session is the Principal Court for the trial of felonies. It. is generally the District Judge who also functions as the Sessions Judge for the District. The Sessions Judge also exercises appellate powers over the decisions of the Magistrates. Sessions Judges also are aided by Additional and Asst. Sessions Judges. We have no grand Jury system hero and even the Jury system is not regarded as having been much of a success. In the opinion of the recent Law Commission it has not taken root in the soil. I should add that juries have not functioned in this country in regard to Civil matters at any time. It will thus be noticed that the position in regard to juries here is in striking contrast to the dominant part played by them in the United States.

In the old days a large proportion of Judges were service-men. But for some decades past, judicial officers at all levels are being recruited from the Bar. This does not, however, apply to several States in this country, where complete separation of the judiciary and the executive has not taken place. This statement may need some explanation. The administration of criminal law under British rule was largely in the hands of executive officers who, along with their executive functions, also tried cases as Magistrates. The executive head of the District was also the District Magistrate. He was the head of the District Police. This naturally led to continued agitation for the separation of the executive from the judiciary. This goal of separation finds a place as one of the Directive Principles of our Constitution. The enlarged activities of the modern State as a welfare State have brought into being a large number of administrative tribunals. While ordinary Civil Courts are barred from dealing with such matters, the High Courts have been entrusted with supervisory jurisdiction over the functioning of all administrative tribunals and the Supreme Court is also empowered to review their decisions. These provisions were introduced as a check against the tendencies ordinarily displayed by administrative tribunals. We have no family Courts in this country. Special provisions for dealing with juvenile offenders have, no doubt, been brought on the Statute Book, but the functioning of these Courts and the rehabilitation of such offenders is yet in a rudimentary stage.

The procedure in the Courts and the functioning of Judges in this country, like the content of the body of laws, is based on the Anglo-Saxon system. In other words, the system that prevails is the adversary system and not the inquisitorial one that is said to characterise the Continental systems. In the proceedings of the Courts, the Judge plays the part of an umpire and is above the din and dust of controversy, leaving it to the opposing counsel to lay bare all aspects of factual and legal issues. This does not mean that the Judge’s part is negative in any sense. The effective control of the proceedings is in his hands. But the lawyers play a vital role and are indeed regarded as officers of the Court. It would be no exaggeration to say that the generally satisfactory character of the decisions could not be achieved without the part played by the lawyers.

I shall say a few words about the Bar in this country. Except in the cities of Calcutta and Bombay, the position of lawyers here corresponds more to that in the United States than in England. We have no dual system here. The lawyer both acts and pleads. There were satisfactory Bar Councils attached to each High Court. Recently the Advocates Act was passed by Parliament to integrate the Bar of the whole country. Under its provisions, there are to be Bar Councils in the States and an All-India Bar Council at the Centre. The structure of this organisation is federal in character. The scheme is to make the Bar an autonomous body. The Bar also has built up high traditions all over the country. This country has produced many great advocates. But the Bar’s part has not been confined to the legal field. They have been in the forefront of the public life of this country and the large majority of our national leaders came from the ranks of the Bar. They have all along been the stoutest champions of the liberty of the citizens. In addition to the Statutory Councils, everywhere there are Bar Associations which have been functioning vigorously in promoting the interests of the profession and maintaining its high standard. Recently an All-India Bar Federation has come into existence.

I should not fail to mention a very pleasing phenomenon of recent years. An increasing number of women are enriching the Bar by joining it. They have their counterparts on the Bench also, though we cannot count so many in the judiciary. I am, however, proud to say that there is a distinguished lady Judge in one of our High Courts–Justice Anna Chandy of the Kerala High Court.

* Speech delivered at the Asian Seminar held on 28-7-1962 at the Indian Institute of World Culture, Bangalore.

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