Administration of Justice in Ancient India Relevant to Formulate a Better Swadeshi Judicial System

Ours is the most ancient nation, which had evolved and developed the oldest legal and judicial system in the world.  Administration of justice was according to the Smritis, one of the most important and obligatory functions of a king.  The Smritis stressed that the very object with which the institution of ‘Kingship’ was conceived and brought into existence was for the enforcement of Dharma by the use of the might of the King [State] and also to punish individuals for contravention of Dharma and to give protection and relief t those who were subjected to injury and in whose favour Dharma [law] lay.  The smritis greatly emphasised that it was the responsibility of the king to protect the people through proper and impartial administration of justice and that alone could bring peace and prosperity to the king as well to the people.  Any indifference towards this important function of the king, the Smritis cautioned, would bring calamity to the king himself and to the people as well.

Ancient Indian jurists bestowed great attention in evolving the law governing administration of justice.  The provisions made on the topic gave the description of the highest court to be located at the capital city, of lower courts under royal authority, and of people’s courts recognised as having the power to decide cases.  The qualifications of judges and other officers of the court were prescribed.  Appointment of experts as assessors to assist the court on technical questions, whenever necessary, was provided for.  Law of procedure and of evidence were laid down.  A code of conduct for judges and others concerned in the administration of justice and provisions for punishment of officers committing offences in the course of the administration of justice, had also been provided.  After making a detailed survey of the Hindu judicial system and the historical evidence available, Sir S. Varadachariar concludes:

“Whenever and wherever and so far as circumstances permitted, attempts were all along being made in Hindu India to administer justice broadly on the lines indicated in the law books”.

The elaborate provisions made on the topic are indicative of a fairly well developed system of administration of justice.

In the meandering course of history, firstly Muslim rulers had thereafter the British rulers introduced their own constitutional, legal and judicial system.  Particularly, the latter introduced Anglo-Saxon jurisprudence which we had immediately prior to our acquiring independence on August 15, 1947.  On becoming a free Nation, it was essential that in all spheres of National activity, we should have incorporated principles and doctrines of eternal value evolved in this country which would have made our Constitutional, Legal and Judicial System qualitatively distinct and superior.  In fact, Mahatma Gandhiji’s swadeshi concept was that after securing political independence, every sphere of National activity must be swadeshi oriented.  In this regard he had said:

“It seems to me that before we can appreciate swaraj, we should have not only love but passion for swadeshi.  Every one of our acts should bear the swadeshi stamp.  Swaraj can only be built upon the assumption that the most of what is national is on the whole sound”.

But unfortunately, we failed to do so.  On the other hand, there is greater tendency to import more and more western concepts and lifestyle.  We have not made any changes in judicial, education, administration etc., so as to bring about a qualitative changes in conformity with our requirement.  This is the main cause for most of our social and economic problems.

The plea, that we should incorporate our concepts in the sphere of judicial, constitutional and legal system, does not mean that we should not enrich our knowledge by the legal, judicial and constitutional system of other countries.  In fact from ancient times our slogan has been:-

¥æ Ùô ÖÎýæÑ ·¤Ìßô Ø‹Ìé çßàßÌÑÐ

“Let noble thoughts come to us from every side”.            [Rigveda 1-879-i].

Therefore, we always welcome thoughts and principles which enrich our knowledge and strengthen our social life.  But at the same time, our legal, judicial and constitutional system must be rooted in the basic concepts evolved in this land from times immemorial.

Justice S.S. Dhavan, a former Judge of Allahabad High Court in his enlightening paper entitled “WHY STUDY INDIAN JURISPRUDENCE AT ALL” [1966] has forcefully brought forth this aspect. I consider it appropriate to mention what he has stated on this aspect.  The relevant portion of the article reads:

I consider that the teaching of Indian jurisprudence in our law faculties is essential for the healthy development of our judicial process… Today, a law student in India is virtually ignorant of Indian jurisprudence.  He does not know as I did not know – that the Indian Juridical system and the Indian judiciary have the oldest pedigree of any existing judicial system in the world, that the “dharmasthiyam” part of Kautilya’s Arthasastra is, in the words of present Chief Justice of India, “one of the earliest secular codes of law in the world”, and the high level at which legal and judicial principles was discussed, the precision with which statements are made, and the absolutely secular atmosphere which it breathes throughout, give it a place of pride in the history of legal literature”.  [Excerpts from the paper presented by him on “Secularism: its implication for law and life in India for a Symposium organised by the Indian Law Institute, New Delhi in November 1965].

With this preface, I proceed to expound the important aspects necessary for greatly improving ourjudicial system under the Constitution of India.

Absolute necessity of modifying the jurisdiction of the Supreme Court retaining its supremacy and enacting a uniform law regulating the Constitution, Organisation and general Jurisdiction of the High Courts.

The founding fathers of the Constitution incorporated Article 32 of the Constitution as part of the fundamental right.    This article is declared by Dr. Ambedkar as the most important article of the Constitution,  under the said Article, a person can move the highest Court directly without approaching any other Court for enforcement of fundamental rights.  This is an extremely good and beneficial provision and the most important aspect of Indian constitution.  Having done so, the founding fathers also considered that there should be a provision for appeal to the highest court against the orders of the High Courts on grant of certificate by the High Court.

[1]  In respect of matters involving interpretation of provisions of the Constitution vide Article 132

[2]  In cases involving questions of law of general importance, which in the opinion of the High Court requires to be decided by the Supreme Court vide Article 133 and

[3]  In respect of criminal matters as provided in Article 134.

Apart from the above provisions, founding fathers also incorporated Article 136 to approach the Supreme Court in appeal by seeking its special leave against the orders made by any Court or Tribunal in the territory of India.

But having regard to the vastness of the Country and population, the experience during the last more than five decades regarding the jurisdiction under Article 136 has been that it is highly expensive even at the admission stage and more so thereafter, if notice is ordered and/or leave is granted.   As the remedy by filing Special Leave Petition is available, large number of Special Leave Petitions is being filed by the litigants to take a chance in respect of ordinary civil and criminal matters.  But in practical terms statistics show that only in a few Special Leave Petitions, notices are issued or leave is granted. Large number of Special Leave Petitions, probably 80 to 85 percent are rejected at the admission stage itself.  As a result, while it has become a matter of taking chance for the parties at heavy cost as described in a judgment that  it has only become lawyers paradise being an in-exhaustive source of income to them and also heavy burden for the litigants and heavy work load on the Supreme Court, which is coming in the way of disposal of important matters including interpretation of the provisions of the Constitution and other matters of great importance, which are pending for five to ten years or even more.

In the light of the experience and highly expensive nature of Special Leave Petitions and also having regard to the fact that only in a small percentage of cases, relief is being granted, this provision requires to be modified.

For this reason I as a Member of Parliament, Rajya Sabha introduced a Private Member’s Bill for amending Article 136 as follows:-

(1A) Nothing in clause (1) shall apply to any judgment, decree or order of any Court or Tribunal unless the case involves:

(a) a question of law as to the interpretation of the provisions of the Constitution or of the Central Law and/or a question as to the Constitutional validity of State or Central law; or

(b) any question of general importance which in the opinion of the Supreme Court needs to be decided by it.

Explanation:  In this Article the expression ‘Law’ shall mean and include any law made by the Parliament or any State Legislature or any rule or order made thereunder or any order issued by or on behalf of the Central or any State Governments having the force of law  [pages 222 to 226 of my book Our Parliament].

In the Private Member’s bill I had also proposed for reconstitution of the High Courts after abolishing what are called letters patent appeals which came into existence during the British period which provided for an appeal in ordinary civil and criminal matters from the decision of the single Judge of the High Court to the Division Bench of the same High Court.  As a result, there has been difference in original and appellate jurisdiction of the High Courts.  They are:

[1]   Some have original, civil jurisdiction, others do not,

[2]  There exists letters patent appeals, from the decision of the High Court to the same High Court i.e., from the decision rendered by a single judge of a High Court to two judges of the same Court in some of the High Courts, which are called intra-court appeals.  They are anomalous for the reason:

[a]  This is opposed to the very concept of appeal which means approaching a superior Court against the decision of the lower Courts.  The Supreme Court in the case of  Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatraya Bapat – AIR 1970 SC

Page-1  has clearly stated what does an appeal means thus:

“The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the Court below.  Two things which are required to constitute

appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter”.

[b]  Under the scheme of the Constitution, an appeal lies only to the Supreme Court from the decision of the High Court. Division Bench of a High Court is not a Court superior to the High Court just because the power is exercised by a single judge.

[c] Taking inspiration from the provisions for letters patent appeal, even some State Legislatures have proceeded to provide appeal to two judges from the decision of the single judge, which is devoid of legislative competence.

The Special Leave Petition to the Supreme Court should be continued in respect of matters involving constitutional validity of Central or State Laws, interpretation of Constitution and of Central Law and also in respect of matters of National importance, which in the opinion of the Supreme Court requires to be decided by it.  This suggestion on the one hand reduces the heavy burden of innumerable Special Leave Petitions in ordinary civil and criminal matters on the Supreme Court and on the other hand keeps the power and jurisdiction of the Supreme Court very wide enabling it to devote their time and energy which is being spent on hearing innumerable Special Leave Petitions.

A committee of High Court Judges presided over by Justice Satish Chandra Agarwal, Chief Justice of Allahabad High Court and also by another Committee presided over by Justice V .S. Malimath, who was the Chief Justice of Karnataka and Kerala High Courts constituted for the purpose recommended the abolition of intra court appeals called letters patent appeal providing an appeal from the decision of the single Judge of the High Court to the Division Bench of the same High Court.  It was thereafter, Section 101A was introduced into the Civil Procedure Code abolishing the provision of appeal from the decision of the single Judge of the High Court to the Division Bench of the same High Court called intra court appeals.

Once the intra court appeals namely appeal from the decision of the single judge to the two other judges is abolished, it stands to reason that alternative appellate forum should be provided within the State in order to provide less expensive and speedy appellate forum against the decision of the High Court.

In this regard, appropriate course is to create a higher appellate forum in each State so that the litigants can avail the opportunity of appeal in the State itself.  Such higher appellate forum will be more effective and real than the existing provision of appeal from a single Judge to the two judge’s bench.

Once such appellate forum is provided in respect of ordinary civil and criminal matters, finality should be attached to the decision of the Higher Appellate Division.

In the Constitution Amendment Bill introduced by me in the Parliament, in addition to the amendment of Article 136 as stated and for reasons stated above, I had also proposed reconstitution of the High Courts by enacting a common High Court Act.  The Statement of Objects and Reasons enclosed to the said Bill makes out the clear object and reasons for the remodeling of Article 136 as also reconstitution of the High Courts.

Common High Court Act necessary:

Article 78 of 7th Schedule to the Constitution to wit the Union list provides for making laws by the Parliament on the topic of Constitution and Organisation of the High Courts which includes its general jurisdiction.  However, the same laws or charters issued by the British Crown which regulated the constitution, organization of the High Courts which were in force before the commencement of the Constitution with a few modifications are continuing even after six decades after the commencement of the Constitution.

As a result, though every High Court is the highest Court in the State/States for which it is established and though according to the Constitution, appeals from the decision of the High Courts lies only to the Supreme Court, a practice has developed in view of the existence of letters patent issued by British Crown which were in force prior to the commencement of the Constitution in a few States.  Letter patent appeals continued to be entertained by a Division Bench of the High Court against the judgment/order made by single judge of the High Court and further copying that writ appeals are being entertained by Division Bench of several High Courts against the order of the High Court itself just because it was rendered by a single judge and on similar lines a few States have also created such appeals by State Legislation without there being appellate jurisdiction.

Therefore, the existing letters patent appeal or Writ Appeal from the decision of the single Judge to two Judges of the High Court is no appeal at all in the real sense of the term, but is being exercised without jurisdiction and therefore it should be put to an end to.

However, it is indisputable that there is need for an appeal within the State itself and litigants cannot be compelled to go to Supreme Court on all ordinary civil and criminal matters which involve enormous and unbearable expenses and also results in inordinate delay.

The above view is fully supported by the opinion expressed by the Supreme Court.  In that, after the establishment of various Administrative Tribunals, citizens aggrieved by the orders of the Tribunals had to approach the Supreme Court which was highly expensive, the Supreme Court in the case of R.K. Jain Vs. Union of India [AIR 1993 SC 1769] observed at page 1804 at paragraph 76 thus:-

“The remedy of appeal by special leave under Article 136 to this Court also proved to be costly and prohibitive and far-flung distance too is working as constant constraint to litigant public who could ill afford to reach this Court.  An appeal to a Bench of Two Judges of the respective High Courts over the orders of the Tribunals within its territorial jurisdiction on questions of law would assuage a growing feelings of injustice of those who can ill afford to approach the Supreme Court”.

The above observations of the Supreme Court applies on all force to all ordinary civil and criminal cases.

This can be done only by reconstituting the High Courts by bringing into existence a Higher Appellate Division as a court of appeal reducing heavy docket load on the Supreme Court under Article 136, which can be done only by a constitutional amendment and also by enacting a Common High Court Act.

One unanimous or majority judgment in each case in court comprising of three or more judges:-

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â çÙÑàæËØæð çßßæÎÑ SØæÌ÷ âàæËØÑ SØæÎÌæð‹ØÍæÐÐ

Unanimous decision by all the judges leaves no room for doubt while a majority decision leaves doubt in the minds of litigants.  [Narada vide Dharmakosha p. 48]

This is a very salutary provision.  It emphasises the importance and efficacy of an unanimous judgment as distinct from decision by majority.  It is needless to stress about the desirability of an unanimous judgment.  In the present context it applies to High Courts and the Supreme Court, where cases are heard by benches comprising of three or more judges.  A provision should be made for delivering one unanimous judgment.  However, if it is not possible, at least one majority judgment should be delivered to avoid confusion as also waste of time in reading several judgments while relying on them before the Courts.

Qualification and appointment of Judges:

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ßðÎæÍü̈ßçßÎ÷ ÚUæÁÙ Ì·ü¤àææS˜æÕãéUŸæéÌæÑÐ

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“A person who is (i) well versed in Vyavahara [laws regulating judicial proceedings] and Dharma [law on all topics], (ii) a Bahushruta [profound scholar] (iii) a Pramanajna [well versed in the law of evidence], (iv) Nyayasastravalambinah [law abiding] and (v) has fully studied the Vedas and Tarka [logic] should be appointed to carry on the administration of justice.  [Mahabharata Shanti Parva 24-18].

This provision in Mahabharata prescribe the qualification as also the qualities of persons to be appointed as judges. The provisions in Narada Smriti and Katyayana Smriti were similar [See Legal and Constitutional History of India, by M. Rama Jois].   At present, the qualification/eligibility of person to be appointed as judges are laid down in the Constitution and the law should be adhered to in the light of ancient texts referred to above.

In my humble opinion, these changes are absolutely necessary for fulfilling the following two objects:

[i]  to reduce the unmanageable docket load on the Supreme Court so that the time and energy of the judges of the Supreme Court are utilised in the disposal of matters of great importance including those affecting the entire nation.

[ii]  to provide a highest Court of Appeal in ordinary civil and criminal matters within each State which is also very necessary having regard to the fact that official languages of the States other than Hindi States are different where local languages are the official language in sub-ordinate Courts in which by and large most of the pleadings and depositions of witnesses are in the local language.

Unfortunately, for want of time the Bills introduced by me in the Parliament were not taken up.  I have discussed this matter in detail with several Senior Advocates and even sitting and retired Judges who considered/agreed that such changes are necessary for improving our national judicial system.

ADMINISTRATION OF CRIMINAL JUSTICE JUSTICE MALIMATH COMMITTEE REPORT

It is a matter of common knowledge that as far as administration of justice is concerned, we are continuing adversarial system of the West disregarding our inquisitorial system.  In adversarial system as far as criminal cases are concerned, the entire burden of proving the guilt of the accused is laid on the prosecution and ‘right to silence’ is given to the accused in terms of clause (3) of Article 20 of the Constitution read with the century old criminal procedure code.  As a result, even small mistake on the part of the prosecution or inconsistency in the deposition of witnesses leads to acquittal of the accused though he had in truth committed the offence.  It is difficult to believe in such majority of cases police files false cases.  It is the failure of the System.  In this behalf it was necessary to follow the principle  “absence of evidence is not evidence of absence” and therefore, it is the duty of the Court to find out what actually had happened.

There is substance in the general feeling that the adversarial system which we are continuing as part of Anglo-Saxon Jurisprudence is more favourable to the offender who is an accused in a criminal case filed against him with the object of bringing him to justice and getting him punished for the offence he has committed.  Though as a person who has committed the offence has full knowledge as to why and how he committed the offence, under adversarial system the accused is given the right to be silent.  Clause (3) of Article 20 confers a fundamental right on the accused declaring that accused person shall not be compelled to be a witness against himself.  This right has been taken as the basis to throw the entire burden of proving that the accused had committed the offence of which  he is charged is thrown on the prosecution.  The Court is prevented from questioning him with the object of ascertaining the truth.  To put it in a nut shell, the adversarial system is more favourable to the accused and unfavourable to the victims and the members of their family who are desirous to see that the person who had committed the crime is found guilty and the quantum of penalty proportional to the gravity of the offence is imposed on him.  It is this procedure in addition inefficient or faulty investigation and negligence on behalf of the prosecuting agency or some times their deliberate omissions to adduce clinching evidence on collateral considerations that is responsible for large percentage of acquittals.  There are also cases in which on account of financial or political influence, despite existence of strong and unanswerable case against the accused, they come to be acquitted by the prosecution introducing weaknesses in the prosecution case by creating situation that there is no evidence beyond reasonable doubt which constitute the very basis of conviction under the adversarial system.  This has led to the people losing confidence and faith in the criminal judicial system and the increasing belief that “law is a wonder net in which big fishes escape and smaller get caught”  namely big and influential accused escape and small fishes namely uninfluential  and poor accused get caught and punished.

As a result, even in cases where heinous offences like murder and rape are committed in public gaze and offender is caught red-handed, the  trial goes on for several months or years and as a consequence all the seriousness of the offence committed is lost.

It is also natural that on account of delay key witnesses may become unavailable or they will not be able to remember several details about the time and place where the offence was committed.

While the basis of adversarial system is that even if the procedure results in large number of acquittals of the offence, no innocent person should be punished.  As far as this principle that no innocent person should be punished, it is good but if large number of persons who are really guilty go unpunished it would result in grave injustice to the victims of the offence.

On the other hand in the inquisitorial system emerging from ancient Indian Legal and Judicial System, no person who ever he may be namely father, teacher, friend, mother, wife, son or pontiff would go unpunished and says that if that happens there will be no rule of law.  Therefore, great burden was laid on the judges to ascertain the truth from the mass of evidence adduced by putting questions to the accused who is sure to have all the information as to, why and how the offence was committed by confronting with indisputable facts which have come before the Court with the object of coming to a correct conclusion.  The ancient Indian procedure also warns against delay in examination of witness which is sure to result in miscarriage of justice, that is why the statement “justice delayed is justice denied” which means that it results in injustice to the party who has suffered injustice at the hands of another.

[The wirter is former Member of Parliament (Rajya Sabha), former Chief Justice of Punjab and Haryana High Court and former Governor of Jharkhand and Bihar]

by Dr. M. Rama Jois