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The Indian Judicial System A Historical Survey By Mr. Justice S. S. Dhavan High Court, Allahabad Part A: Judicial System in Ancient India India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree. But before describing the judicial system of ancient India I must utter a warning. The reader must reject the colossal misrepresentation of Indian Jurisprudence and the legal system of ancient India by certain British writers. I shall give a few specimens. Henry Mayne described the legal system of ancient India "as an apparatus of cruel absurdities". An Anglo-Indian jurist made the following remark about what he called "the oriental habits of life" of the Indians before the British turned up in India: "It (British rule in India) is a record of experiments made by foreign rulers to govern alien races in a strange land, to adapt European institutions to Oriental habits of life, and to make definite laws supreme amongst peoples who bad always associated government with arbitrary and uncontrolled authority."^1 (italicized by me). Alan gledhill, a retired member of the Indian Civil Service, wrote that when the British seized power in India, "there was a dearth of legal principles."^2 These statements are untrue. It is not for me to guess why they were made. They may be due to sheer ignorance, or imperialist self-interest, or contempt for Indian culture and civilization which was a part of the imperialist outlook which dominated British Jurists, historians, and thinkers in the heyday of imperialism. But the effect of this misrepresentation, which has few parallels in history, was to create a false picture of the Indian judicial system both in India and outside. We must go the original texts to get a true and correct picture of the legal system of ancient India. The reader will discover from them that Indian jurisprudence was found on the rule of law; that the King himself was subject to the law; that arbitrary power was unknown to Indian political theory and jurisprudence and the kind’s right to govern was subject to the fulfillment of duties the breach of which resulted in forfeiture of kingship; that the judges were independent and subject only to the law; that ancient India had the highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today ; that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with the power to review the decision of the Courts below ; that disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial process in the modern State today: that the rules of procedure and evidence were similar to those followed today ; that supernatural modes of proof like the ordeal were discourage ; that in criminal trials the accused could not be punished unless his guilt was proved according to law ; that in civil cases the trial consisted of four stages like any modern trial
- plaint, reply, hearing and decree ; that such doctrines as res judicata (prang nyaya) were familiar to Indian jurisprudence ; that all trials, civil or criminal, were heard by a bench of several judges and rarely by a judge sitting singly ; that the decrees of all courts except the King were subject to appeal or review according to fixed principles ; that the fundamental duty of the Court was to do justice "without favour or fear". Rule of law in Ancient India Was there a rule of law in ancient India? Let the texts speak for themselves. In the Mahabharata, it was laid down " A King who after having sworn that he shall protect his subjects fails to protect them should be executed like a mad dog."^3
"The people should execute a king who does not protect them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune."^4 These provisions indicate that sovereignty was based on an implied social compact and if the King violated the traditional pact, he forfeited his kingship. Coming to the historical times of Mauryan Empire, Kautilya describes the duties of a king in the Arth-shastra thus : "In the happiness of his subjects lies the King’s happiness; in their welfare his welfare; whatever pleases him he shall not consider as good, but whether pleases his people he shall consider to good."^5 The Principle enunciated by Kautilya was based on a very ancient tradition which was already established in the age of the Ramayana. Rama, the King of Ayodhya, was compelled to banish his queen, whom he loved and in whose chastity he had comlete faith, simply because his subjects disapproved of his having taken back a wife who had spent a year in the house of her abductor. The king submitted to the will of people thopugh it broke his heart. In the Mahabharata it is related that a common fisherman refused to give his daughter in marriage to the King of Hastinapur unless he accepted the condition that his daughter’s sons and not the heirapparent from a former queen would succeed to the throne. The renunciation of the throne and the vow of life-long celibacy (Bhishma Pratgyan) by Prince Deva Vrata is one of the most moving episodes in the Mahabharata.^6 But its signifiance for jurists is that even the sovereign was not above the law. The great King of Hastinapur could not compel the humblest of his subjects to give his daughter in marriage to him without accepting his terms. It refutes the view that the kings in ancient India were "Oriental despots" who could do what they liked regardless of the law or the rights of their subjects. Judiciary in Ancient India With this introductory warning, I shall endeavour to describe the judicial system of ancient India. According to the Artha-shastra of Kautilya, who is generally recognised as the Prime Minister of the first Maurya Emperor (322-298 B.C.), the realm was divided into administrative units called Sthaniya, Dronamukha, Khrvatika and Sangrahana (the ancient equivalents of the modern districts, tehsils and Parganas). Sthaniya was a fortress established in the center of eight hundred villages, a dronamukha in the midst of 400 villages, a kharvatika in the midst of 200 villages and a sangrahana in the center of ten villages, Law courts were established in each sangrahana, and also at the meeting places of districts (Janapadasandhishu). The Court consisted of three jurists (dhramastha) and three ministers (amatya).^7 This suggests the existence of circuit courts, for it is hardly likely that three ministers were permanently posted in each district of the realm. The great jurists, Manu, Yajn-valkya, Katyayana, Brihaspati and others, and in later times commentators like Vachaspati Misra and others, described in detail the judicial system and legal procedure which prevailed in India from ancient times till the close of the Middle Ages. Hierarchy of courts in Ancient India According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court.^8 The jurisdiction of each was determined by the importance of the dispute, the minor disputes being decided by the lowest court and the most important by the king. The decision of each higher Court superseded that of the court below.^9 According to Vachaspati Misra, "The binding effect of the decisions of these tribunals, ending with that of the king, is in the ascending order, and each following decision shall prevail against the preceding one because of the higher degree of learning and knowledge".^10
In course of time, a judicial hierarchy was created which relieved the king of much of the judicial work, but leaving untouched his powers as the highest court of appeal. Under the Maurya Empire a regular judicial service existed as described above. Quality of the Judiciary: Integrity I shall now say a few words about the quality of the Judiciary and the code of conduct prescribed for judges. The foremost duty of a judge was integrity which included impartiality and a total absence of bias or attachment. The concept of integrity was given a very wide meaning and the judicial code of integrity was very strict. Says Brihaspati: "A judge should decide cases without any consideration of personal gain or any kind of personal bias; and his decision should be in accordance with the procedure prescribed by the texts. A judge who performs his judicial duties in this manner achieves the same spiritual merit as a person performing a Yajna."*^23 The strictest precautions were taken to ensure the impartiality of judges. A trial had to be in open court and judges were forbidden to talk to the parties privately while the suit was pending because it was recognised that a private hearing may lead to partiality (pakshapat). Shukra-nitisara says: "Five causes destroy impartiality and lead to judges taking sides in disputes. There are attachment, greed, fear, enmity, and hearing a party in private."^24 Another safeguard of judicial integrity was that suits could not be heard by a single judge, even if he was the king. Our ancients realized that when two minds confer, there is less chance of corruption or error, and they provided that the King must sit with his counselors when deciding cases, and judges must sit in benches of uneven numbers. Shukra-nitisara enjoined that "Persons entrusted with judicial duties should be learned in the Vedas, wise in wordly experience and should function in groups of three, five, or seven."^25 Kautilya also enjoined that suits should be heard by three judges (dharmasthstrayah). Our present judicial system, created by the British, does not follow this excellent safeguard. Today every suit is heard by a single Munsif or civil Judge or District Judge for reasons of economy. But the state in ancient India was more interested in the quality of justice than economy. Integrity Every Smriti emphasizes the supreme importance of judicial integrity. Shukra-nitisara says: "The judges appointed by the king should be well versed in procedure, wise, of good character and temperament, soft in speech, impartial to friend or foe, truthful, learned in law, active (not lazy), free from anger, greed, or desire (for personal gain), and truthful."^26 Punishment for corruption Corruption was regarded as a heinous offence and all the authorities are unanimous in prescribing the severest punishment on a dishonest judge. Brihaspati says: "A judge should be banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the confidence reposed in him by a trusting public."^27 A corrupt judge, a false witness, and the murderer of a Brahmin are in the same class of criminals.^28 Vishnu says: "The state should confiscate the entire property of a judge who is corrupt."^29 Judicial misconduct included conversing with litigants in private during the pendency of a trial. Brihaspati says: "A judge or chief justice (Praadvivaka) who privately converses with a party before the case has been decided (anirnite), is to be punished like a corrupt judge."^30 Jurors The most noteworthy feature of the judicial system was the institution of sabhasada or councilors who acted as assessors or adviser of the King. They were the equivalent of the modern jury, with one important difference. The jury of today consists of laymen- "twelve shopkeepers"-whereas the councilors who sat with the Sovereign were to be learned in law. Yajanvalkya enjoins: "The Sovereign should appoint as assessors of his court persons who are well versed in the literature of the law, truthful, and by temperament capable of complete impartiality between friend and foe."^31
These assessors or jurors were required to express their opinion without fear, even to the point of disagreeing with the Sovereign and warning him that his own opinion was contrary to law and equity. Katyayana says: ‘The assessors should not look on when they perceive the Sovereign inclined to decide a dispute in violation of the law; if they keep silent they will go to hell accompanied by the King."^32 The same injunction is repeated in an identical verse in Shukr-nitisara.^33 The Sovereign-or the presiding judge in his absence-was not expected to overrule the verdict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in accordance with their advice. Shukr-nitisara says: " The King after observing that the assessors have given their verdict should award the successful party a decree (Jaya-patra)."^34 Their status may be compared to the Judicial Committee of the Privy Council which "humbly advise" their Sovereign, but their advice is binding. It may also be compared to the peoples’ assessors under the Soviet judicial system who sit with the professional judge in the Peoples’ Court but are equal in status to him and can overrule him. But there was one exception. If in a difficult case the jurors were unable to come to a conclusion, the Sovereign could decide the matter himself. Shukra-nitisara says, "If they (the assessors) are unable to decide a dispute because it raises difficult or doubtful issues (sandigdha-roopinah), in such a case the Sovereign may decide in the exercise of his Sovereign privilege.^35 Criminal Trials In criminal trials it appears that the question of innocence or guilt of the accuse was decided by the judge or the jurors, but the quantum of punishment was left to the King.^36 In the trial scene in Mrichchhakatika, The Little Clay Court, the judge after pronouncing Charudatta guilty of the murder of Vasantasena, referred the question of punishment to the King with the remark, "The decision with regard to Charudatta’s guilt or innocence lies with us and our decision is binding (Pramanam), but the rest lies with the King."^37 Interpretation of the Text of the law Principles of interpretation were developed to high degree of perfection. Judges were required to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro ditena vidhina). This involved interpretation of the written text of the law-a task which created many problems such as the elucidation of obscure words and phrases in the text, reconciliation of conflicting provisions in the same law, solution of conflict between the letter of the law and principles of equity, justice and good conscience, adjustment of custom and smritis, and so on. This branch of law was highly developed and a number of principles were enunciated for the guidance of the courts. The most important of them related to the conflict between the dharm-shastra and the artha-shastra. Three systems of substantive law were recognized by the court, the dharma-shastra, the arth-shastra, and custom which was called sadachara or charitra. The first consisted of laws which derived their ultimate sanction from the smritis and the second of principles of government. The bordr line between the two often overlapped. But the real distinction between the smritis and arth-shastra is uniformaly secular, but that of the dharma-shastra not always so. IN fact so remarkably secular is the arth- shastra in its approach to the problems of government that this has induced some writers to advance the theory that the artha-shastra (literal meaning: the science of ‘artha’ or pursuit of material welfare), did not evolve from the dharma-shastra but had an independent origin and developed parallel to it. Whatever their respective origins, in several matters the arthashastra and the dharma-shastra are in conflict. How did the law courts resolve this conflict when it arose in particular suits? The first principle was that of avirodha: the court must try to resolve any apparent conflict between the two.^38 (This is called the principle of harmonious construction today. But if the conflict could not be resolved, the authority of the dharma-shastra was to be preferred. Bhavishya purana provides : "whens mriti and artha-shastra are inconsistent, the provision in the artha-shastra is superseded (by smriti); but if two smritis, or two provision in the same smriti are in conflict, whichever is in accordance with equity is to be preferred."^39 Narada smriti lays down a similar rule of interpretation according to reason in case of conflict between two texts of the smritis.^40 But while interpreting the written text of the law, the court was to bear in mind that its fundamental duty was to do justice and not to follow the letter of the law. Brihaspati enjoined: " The court should not give its decision by merely following the letter of the shastra for if the decision is completely devoid of reasoning, the result is injustice (dharma-
The procedure and atmosphere of the Courts discouraged falsehood. The oath was administered by the judge himself, and not by a peon as today. While giving the oath the judges were required to address the witness extolling truthfulness as a virtue and condemning perjury as a horrible sin. Brihaspati says, "Judges who are well-versed in the dharmashastra should address the witness in words praising truth and driving away falsehood (from his mind)".^52 The judges’ address to the witness did not consist of set words but a moral exhortation intended to put the fear of God in him. All the texts are unanimous on this point.^53 According to Narada, "The judges should inspire awe in the witness by citing moral precepts which should uphold the majesty of truth and condemn falsehood".^54 All the smirtis were unanimous in holding that perjury before a law court was a heinous sin as well as a serious crime.^55 There were other provisions, calculated to reduce the changes of false evidence being given. Katyayana enjoined, with much common sense that there should be no delay in examining witnesses- obviously because delay dims the memory and stimulates imagination. "The Sovereign should not grant any delay in the deposition of witnesses; for delay leads to great evil and results in witnesses turning away from the law.”^56 Administrative Courts An important feature of the judicial system of ancient India were the Special Courts of criminal jurisdiction called the Kantakasodhana Courts. The artha-shastra says, "Three commissioners (pradeshtarah) or three ministers shall deal with measures to suppress disturbance to peace (kantakasodhanam kuryuh).^57 According to the artha-shastra these courts took cognizance not only of offences against the States but also violations of the law by officials in the discharge of their official duties. Thus if traders used false weights or sold adulterated good, or charged excessive prices, if the labourer in the factory was given less than a fair wage or did not do its work properly, the Kantakasodhana courts intervened to punish the culprits. Officers charged with misconduct, persons accused of theft, dacoity and sex offences had to appear before the same court. These Courts had all the characteristics of administrative courts. The existence of an Administrative Code is indicated in the Fourth part of the Artha-shastra. Administrative Code The State in ancient India had a public sector of huge dimensions engaged in commerce and industry. The modern capitalist notion that there should be no industries run by the State would have appeared idotic to our ancients. Under the Mauryan Empire there was a State mercantile marine, a state textile industry, a state mining industry, and a state trading department in charge respectively of a Superintendent-General of Shipping (navadhyaksha). Textiles (Sootradhyaksha), mining (akaradhyaksha), and commerce. The regulation of each state industry was under its own rules and all the rules were compiled and classified in the artha-shastra and may be regarded as an Administrative Code. I shall give a few illustrations. The artha-shastra provides a complete Administrative Code prescribing rules of maritime and riparian navigation. It enjoined that the State should have a Superintendent-General of Navigation whose duties are defined thus: "The Superintendent of ships shall examine the accounts relating to navigation not only on the oceans and mouths of the rivers, but also on lakes, natural or artificial, and in the vicinity of Sthaniya and other fortified cities.”^58 The chapter contains a provision for the ships to have adequate few for ships. There were strict regulations to ensure the safety of vessels: "For navigation on large rivers which cannot be forded (atarya) even during winter and summer season, there shall be a service of large boats (mahanavo), with a captain (shasaka), pilot (niyamaka), a crew to hold the sickle and the ropes, and to clear the boat of water.”^59 The artha-shastra also contains regulations indicating that the state mercantile marine operated on the high seas and it provided that "passengers arriving in port on the royal ships shall pay their passage money (yatra-vetanam)."^60 The rates were to be fixed by the Superintendent-General. Incidentally, the existence of this code proves beyond doubt that the people of India were a sea-faring people with extensive trade relations with foreign countries. Similarly, the manufacture of textiles and cotton yarn, which was a huge industry exporting textiles to foreign countries had a public as well as a private sector. The public sector was under a Superintendent-General of Textiles (Sootradhyaksha). He had a large organization under him. The
artha-shastra prescribed the duties of the Sootradhyaksha and the other officials working under him. It enjoins: "The Superintendent-Genral of Weaving shall employ qualified persons to manufacture treads (sutra), coats (varma), clothes (vastra), and ropes.”^61 One of his duties was to give employment to women in their own homes. Cotton was distributed among them and spun into tread and either collected by the department or delivered by the women themselves. But the artha-shastra contains strict regulation against the taking of liberties with such women or withholding their wages. It prescribed: "If the official of the Superintendent stares at the face of such woman or tries to engage her in conversation about matters other than her work (in other words, makes what an American would call a pass at her) he will be punished as if he is guilty of a first assault.^62 "Delay in payment of wages shall be likewise punishable.^63 Another regulation made it a punishable offence to show any undue favour to a women worker. It provided; "If an official pays wages to a woman for no work done, he will be punished.”^64 Collection of taxes and import duties There was a code prescribing rules governing the collection of taxes and import duties. This development was in charge of the Superintendent General of taxes (Shulkadhyaksh). The merchants at the customs were liable to declare their merchandise which had to bear a seal when imported. Penalties were prescribed for making a false declaration. One rule enjoined: "If the merchandise bears no seal, their duty shall be doubled".^65 But in case of counterfeit seal, the merchant was liable to pay a penalty amounting to eight times the normal duty.^66 If the seal was torn, the merchant was liable to be detained in a lock-up reserved loiterers.^67 The Administrative Code in the 4th Section of the artha-shastra contains detailed regulations for the control of the other departments of the state. These regulations were not enforced by the ordinary courts but by Commissioners (Pradeshtarah) who functioned as Kantak Shodhana courts. I shall sum up the fundamental principles on which the judicial process in ancient India was founded: The trial was always in public^68 and always by several judges collectively. Cases were heard in their serial order except in case of urgency.^69 Delay in the disposal of cases was condemned by all authorities and judges who were guilty of such delay were liable to be punished.^70 The Sovereign was not to interfere with the judiciary but on the contrary the latter was under a duty to interfere in case of a wrong (judicial) decision by the king.^71 The Judges were to be impartial ; during the pendency of the suit they were forbidden to have any private talks or relations with the parties. If a judge was guilty of partiality, or harassment, or deliberately violated the prescribed procedure, he was liable to be punished. Corruption was the most heinous offence in a judge and a corrupt judge was banished from the realm and forfeited all his property. The procedure for suits was prescribed by law, and every suit was initiated by a complaint or plaint filed by the aggrieved party who prayed for the redress of a legal wrong.^72 Citizens were strictly forbidden to instigate or finance or file complaints in which they were not interested, and champerty was a punishable offence. I cannot do better than quote the verdict of a very recent English writer: "In some respects the judicial system of ancient India was theoretically in advance of our own today."^73 Part B: Judicial System in Medieval India After the disintegration of the Harsha empire a veil of obscurity descends on the history of India which does not lift till the Muslim invasion. The country was divided once more into small kingdoms. But this did not result in any great change in the judicial system which had taken roots during the preceding thousands of years. The standards and ideals of justice were maintained in each kingdom, in spite of political divisions, the unity of civilization was preserved, and the fundamental principles of law and procedure were applied throughout the country. This I is indicated by the fact that the great commentaries on law like Mitakshara and Shukarneeti Sar were written during this period and enjoyed an all-India authority. But the establishment of the Muslim rule in India opened a new chapter in our judicial history. The Muslim conquerors brought with them a new religion, a new civilization, and a new social system. This could not but have a profound effect on the judicial system. The ideal of justice under Islam was one of the highest in the Middle ages. The Prophet himself set the standards. He said in the quran, "Justice is the balance of God upon earth in which things when weighed are not by a particle less or more. And He appointed the balance that he should not
show of it and his Golden Chain has become famous in history. The weakness of Indo-Mohammedan Law, according to Jadunath Sircar, was that all its three sources were outside India. "No Indian Emperor’s or Qazi’s decisions was ever considered authoritative enough to lay down a legal principle to elucidate any obscurity in the Quran, or syupplement the Quranic law by following the line of its obvious intention in respect of cases not explicitly provided for by it. Hence, it became necessary for Indian Qazis to have at their slbow a digest of Islamic law and precedent compiled from the accepted Arabic writer..... Muslim law in India was, therefore, incapable of growth and change, except so far as it reflected changes of juristic thought in Arabia or Egypt."^85 After the death of Aurangzeb, the Mughal Empire collapsed within two generations. The provincial Governors and Faujdars arrogated to themselves the status of sovereigns and awarded punishment for criminal offences in their own names. A relic of this usurpation of the Emperors’ power is the name Faujdari given to criminal trials even today. After the conquest of Bengal by the British the process of replacement of the Mughal system of justice by the British began. But it took a long time. In fact, The Sadre Diwani Adalat continued to function till it was replaced by the High Courts. The Mughal judicial system has left its imprint on the present system, and a good part of our legal terminology is borrowed from it. Our civil courts of first instance and called Munsifs, the plaintiff and the defendant are termed Muddai and Muddaliya and scores of other legal terms remind us of the great days of the Mughal Empire. Part C: The Judicial System Today I shall now give a very brief description of our judicial system today. Barring the Supreme Court, India has no federal judiciary like the United States. Each State has its own judiciary, which administers both Union and State laws. As during the Maurya Empire, each district in the State has its hierarchy of judicial officers- Munsif, Civil Judge, Civil and Sessions Judge- with the District Judge as its head. I shall not give a detailed description of the organization of our state judiciary, as it is the subject-matter of another article in this volume. High Courts At the apex of the State Judiciary is the High Court. It is a court of record and not subject to the superintendence of any court or authority, though appeals from its decision may lie to the Supreme Court. It consists of a Chief Justice and as many judges as the President of India may sanction. The number varies from 36 for the Allahabad High Court to 3 for Assam. The Chief Justice is in charge of the administrative work of the Court and distributed judicial work among his companion judges. He is also consulted in the appointment of judges in his own Court. But while sitting in Court, his judicial status is no higher than that of any other judge and his decisions can be reversed by any two judges in Special Appeal, and if sitting on a bench of three Judges, he can be overruled by his colleagues. He has no administrative control over any judge and his status may be described as primus inter pares (first among equals). The High Courts hears appeals or revisions from the decisions of all subordinate courts, civil and criminal. In addition, it has original jurisdiction in matrimonial, Company, and testamentary cases. A special jurisdiction was conferred on all High Courts by Article 226 of the Constitution, empowering them to prevent the infringement of fundamental rights of citizens and other rights, by issuing writs of habeas corpus, quowarranto, prohibition, certiorari, mandamus , or any other orders of directions. In the exercise of this power, the High Court can restrain the State from interfering unlawfully with the rights of any citizen and invalidating any act or order already done or passed. It can also declare invalid any law passed by Parliament or the state legislature in violation of the fundamental rights of any citizen. The remedy under Article 266 has proved to be a very popular remedy and several thousands of petitions are filed every year by citizens throughout India for the protection of their rights. In the State of Uttar Pradesh alone over three thousand petitions are filed in a year. Every High Court Judge is appointed by the President. The recruitment to the High Court bench is partly from the bar and partly by promotion of district Judges of not less than five years’ standing.
During his tenure of office, a High Court Judge enjoys complete security of tenure which is the foundation of judicial independence. A judge can be transferred from one High Courts to another, but in practice no transfer has taken place except at the desire of the judge concerned. Independence of Judges The principle of judicial independence did not originate with British rule. As I have shown above, it was fully understood and enforced in ancient India. Katyayana and all other law-givers (whose injunctions have been quoted above) emphasized the Supreme importance of judges being independent and fearless even of the king. The Constitution of India adopted the English doctrine of security of tenure, and a High court or supreme court Judge can be removed only on the ground of proved misbehaviour or incapacity, and after each House of Parliament has passed by a two-third majority an address to the President for his removal (Articles 124 and 217). The Supreme Court and National Integration The Constitution of 1950 created for the first time in Indian history a Supreme Court for the whole of India. The establishment of this Court with an all-India jurisdiction is likely to accelerate the development of a common law extending over every nook and corner of the republic. Article 141 enjoins "that the law declared by the Supreme Court shall be binding on all Courts in India. " It gives the opinions of our Supreme Court a constitutional force. The judicial process can be an effective weapon for forging national integration. In England the law Courts were the most effect weapon for creating a common law for the English people. There can be no doubt that the Supreme Court by its decisions and opinions, with the authority of Article 141 behind them, shall accelerate the process of establishing a common law for the whole of India. Judiciary has maintained its ancient traditions After the attainment of freedom the Indian judiciary has maintained the ancient Indian tradition of judicial independence and integrity. The Supreme Court has set the pace and its record of independence is second to none in the world. The High Courts, too, on the whole, have maintained a high degree of independence, and cases of judges carrying favour with the executive have been rare, The highest praise must go to our subordinate judiciary-the Munsifs, Civil Judges, and District Judges who have dispensed impartial justice between citizens of different communities and castes, and whose record compares very favourably with that of British judges who were not always impartial between Indian and British litigants. Indian Judges have lived up to the injunction of Brihaspati that a Judge should decide cases without any motive of personal gain or prejudice or bias and his decisions should be in accordance with the law prescribed by the text. The Weakness of Our Judicial Process The great weakness of our judicial process is that it lacks theoretical nourishment. The impact on the judicial process of theories of jurists is profound though unseen and subconscious. A great American Judge, Oliver Wendell Homes, wrote, "The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen have a great deal more to do than the syllogism in determining the rules by which men are governed." Another great American Judge, Benjamin Cordozo, observed, "Logic, and history and custom, and utility, and the accepted standard of right conduct, are the forces which singly or in combination shape the progress of the law.^86 Roscoe Pound is also of the view that "current moral ideas and ethical customs are drown upon continually although seldom consciously."^87 The Supreme Court of India has observed that in determining whether any restriction on a fundamental right was reasonable, there was no abstract of reasonableness and it was inevitable that the prevailing conditions at the time, and the social philosophy and the scale of values of the judges participating in the decision should play an important part.^88 In ancient India the judges were required to be well versed in all branches of knowledge (vidya) as well as jurisprudence and the science of government (dharma-shastrartha kushalai rartha shastra visharadai).^89 But what about today? What is the legal and social philosophy on which the Indian judges are broght up today?
Rights and Duties An important difference between Indian and Western jurisprudence is their respective attitudes to rights and duties. They are correlated in both systems, but the emphasis is different. In Indian jurisprudence the emphasis is on obligations. In fact, the word right (adhikar) does not occur even once in the whole of the Anushasan Parva or the Arthasastra. Indian jurisprudence is founded on theories which emphasise that rights are corollaries of the duties. Even freedom of speech is recognised as a duty to speak without fear. In Western jurisprudence, on the other hand, rights, natural or legal, are primary, though every right must have a corresponding duty. This emphasis on rights in one case and obligations in the other has had important effect on social institutions like marriage. Under Indian jurisprudence marriage was a duty, a job to be performed as one of the many social obligations, which everyone had to perform. But the pre-occupation of Western jurisprudence with rights has resulted in marriage being looked upon as an alliance from which each partner tries to get us much as he or she can. The high rate of divorce is the result of neglecting the ‘duty’ aspect of marriage. Future role of Indian Judiciary What shall be the role of our judiciary in the coming social and economic revolution. The judicial system does not operate in a vacuum. The administration of justice has a social function and the judicial process is only a part of the larger social process. Therefore the courts of law cannot function in defiance or ignorance of the social objectives or "the felt necessities of times" as Mr. Justice Homes called them. The maxim Fiat fiat iusticia et peret mundes (Justice must be done though the beams may fall) emphasizes the impartiality of the judges but does not permit the judiciary to be indifferent to social needs. In theory the judiciary does not legislate; it only states what the law is. But as Goethe observed,^96 "the facts of life are more potent than abstract theories." In practice the judicial process is infinitely more complex than the bare theory of separation of powers. The Judges cannot help making the law while interpreting it. Under the guise of explaining the law the U. S. Supreme Court delivered opinions which affected the destinies of the American people. A former Attorney-General of the United States writes of the U. S. Supreme Court: "………….. this Court has repeatedly overruled and thwarted both the Congress and the Executive. It has been in angry collision with the most dynamic and popular Presidents in our history. Jefferson retaliated with impeachment; Jackson denied its authority; Lincoln disobeyed a writ of the Chief Justice; Theodore Roosevelt proposed recall of judicial decisions: Wilson tried to liberalize its membership; and Franklin D. Roosevelt proposed to ‘reorganize’ it. It is surprising that it should not only survive but, with no might except the moral force of its judgment, should attain actual supremacy as a source of constitutional dogma. "Surprise turns to amazement when we reflect that time has proved that its judgment was wrong on the most outstanding issue upon which it has chosen to challenge the popular branches. Its judgment in the Dred Scott case was overruled by war. Its judgment that the currency that preserved the Union could not be made legal tender was overruled by the Sixteenth Amendment. Its judgments repressing labour and social legislation are now abandoned. Many of the judgments against New Deal legislation are rectified by confession of error. In no major conflict with the representative branches on any question of social or economic policy has time vindicated the Court."^97 Indian Constitution, a Synthesis The role of the Indian judiciary cannot be isolated from the social objectives of the nation. Our Constitution has; set before the Indian people the ambitious goal of achieving a synthesis of the Western and the Communist way of life, individual liberty and social control, abolition of anarchy in production and preservation of democracy in Government-in a word, of political and economic freedom. I must not be understood to mean that there is absolutely no political freedom in the Soviet State or economic progress in the Western democracies. The division of the world into black and
white and with no shades of grey is good propaganda for the "cold war" but a poor statement of facts. The difference is one of emphasis. The Soviet system placed economic progress before political freedom because the Soveit Government has uptil now been struggling with the problem of transforming a multi-national, multiracial, multi-lingual, and multi-religious community living in a huge, sprawling, state into a modern industrial nation. Today the words "economic planning" and "political democracy" are accepted on both sides of the so-called iron curtain. Our Constitution attempts to achieve a synthesis of the two. It reflects the spirit of non-alignment in the field of constitutional law. Social control of industry is in accord with the Indian tradition. I have already indicated that the state in ancient India had a huge public sector, and the Arthashastra prohibits such trade practices as cornering the market to raise prices. The Indian Constitution has set before our people a very ambitious and difficult goal. A Constitution is not a collection of abstract theories, nor does it operate in a vacuum. It reflects a way of life which enables a particular people to realize its objectives and ambitions. If it fails to do this, it will be amended or discarded by agreement or otherwise. The Compulsive forces of social life are irresistible in the end. Condition of National Survival The people of India has taken upon itself the titanic task of the transformation of her economy within one generation. Our state is determined to achieve within a few years what took Britain and other countries several centuries. There is no choice left for India in this matter. The Himalaya is no longer our shield. Industrial strength has now become a condition of our survival. The only other country in the world which was able within a single generation to transform itself from a backward rural and agricultural community into a modern industrial and highly powerful state in U.S.S.R. But the political system of the Soviet State is very different from that of India. We are living under a constitution based on the principle of the parliamentary democracy, which has the merit of acting as a brake on the arbitrary exercise of power. But a brake is a brake; it provides safety, not speed. And what India needs is speed in social and economic revolution, because our very survival as a nation depends upon the speed of our economic development. It is possible to achieve a rapid economic transformation under the present system of laws? This is the fundamental question facing not only India but the whole of the non-communist world. This problem was states ten years ago by an American journal, in a special article devoted to India, in the following words: "Nikita Khruschev has challenged the West to complete against communism in the task of developing the under developed lands… And as the Fifties give way to the Sixties the question that India faces is: can these poor people, multiplying at the rate of 9 million a year be kept alive under a system of free parliamentary government? Or will India be forced, in a desperate attempt to keep its masses from starving to throw aside its democratic institutions (as much of Asia already has) and adopt in their place the ruthless methods of communist China.^98 It is no exaggeration to say that on the ability, wisdom and patriotism of our future judges depends to some extent the future of the rule of the law and parliamentary democracy in India. But wise judges do not drop like Ganga from heaven: they grow out of the social soil and are nurtured by the social atmosphere. Great judges are not born but made by proper education and great legal traditions, as were Manu, Kautilya, Katyayana, Brihasparti, Narada, Parashara, Yajnavalkya, and other legal giants of ancient India. The continued neglect of legal education is against the national interests. 1 History of the Constitution of the Courts and Legislative Authorities in India, by Cowell (1872), p.3. 2 Alan Gledhill: The Republic of India, p.147. In fairness I must state that several British Indologists of eminence like E.B. Havell, A.L.Basham, Spellman, and others, do not share the prejudices of their imperialist predecessors though their approach may be different from ours. The reader is advised to study The History of Aryans Rule in India by E.B. Havell; The Wonder that was India by A.L. Basham, and Political Theory of Ancient India by John W. Spellman. 3 SANSKRIT SLOK
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33 Shukra, IV, 5, 34 SANSKRIT SLOK 35 SANSKRIT SLOK 36 The State and Government in Ancient India, by A.S. Alkkar, p.249. I am indebted to this work for several valuable ideas. 37 SANSKRIT SLOK 38 SANSKRIT SLOK 39 SANSKRIT SLOK 40 SANSKRIT SLOK 41 SANSKRIT SLOK 42 SANSKRIT SLOK 43 SANSKRIT SLOK 44 SANSKRIT SLOK 45 SANSKRIT SLOK 46 SANSKRIT SLOK 47 SANSKRIT SLOK 48 SANSKRIT SLOK 49 SANSKRIT SLOK 50 A.L. Basham: The Wonder that was India, p.116. 51 Ancient India as described by Magasthenes and Arian, by Mc. Rindle, p.6. 52 SANSKRIT SLOK 53 Manu, VIII, 79-87; Narada I, 200-228, Katyayana, 388-390; Yajnaa-II, 273-74. 54 SANSKRIT SLOK 55 Brihaspati V, 34; Manu VIII, 80-87; Yajna II, 73-74; Narada I, 220-228; Baudh I, 13,14,19. 56 SANSKRIT SLOK 57 SANSKRIT SLOK
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“ When a person who is the victim of a wrong in violation of the Smritis and the custom of the realm files a plaint (or complaint) before the sovereign, this is the commencement of a law suit (Vyavahara)”. 73 Political Theory of Ancient India: John W. Spellman, Clarendon Press, Oxford, p.128. 74 Fakhr-ud-din Mubarak Shah, Edited by D.Ross, p.12. 75 Abdul Rahim : The Principles of the Muhammedan Jurisprudence, page 21. 76 Badaoni : Muntakhab-ut-Tawarikh, quoted by M.B.Ahmad in the administration of Justice in the Medieval India, p. 278. 77 Brani : Tarikh Firuz Shahi, p. 77. 78 The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting Briggs,. Rise of the Muhammendan Power in India, Volume I, p.272. 79 Ibid., p.273. 80 Encyclopaedia of Islam, Vol. II, page 606 81 Mughal Administration, by Sir Jadunath Sarkar, page 108. 82 Administration of Justice in Medieval India : M.B.Ahmad. 83 Manual of Officers Duties, a Persian Mss. Quoted by Sir Jadunath Sircar, p. 27.
