RESEARCH TASK

“Justice consists not in being neutral between Right and Wrong, but in finding out the Right and upholding it, wherever found against the Wrong.”

- THEODORE ROOSEVELT

As a body sitting in judgment of the collective destiny of over one billion people, diverse in many respects and united under a democratic constitution, the Indian Courts are no doubt one of the most powerful institutions of its kind anywhere in the world.1 India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree.2 Law in India has primarily evolved from customs and religious prescription to the current constitutional and legal system we have today, thereby traversing through secular legal systems and the common law.3Before considering the present Indian judiciary let us go to the picture of the legal system of ancient India.

HISTORY OF INDIAN JUDICIARY

India has a recorded legal history starting from the Vedic ages. It is believed that ancient India had some sort of legal system in place even during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by the Jains and Buddhists.4

The 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 king’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,

1Law And Justice : A Look At The Role And Performance Of Indian Judiciary by PROF. N.R. MADHAVA MENON Former Director, National Law School at Bangalore and Kolkata and National Judicial Academy at Bhopal, Address delivered at the Berkeley Seminar Series on Law and Democracy held at University of California, Sept. 2008, pdf. 2 The Indian Judicial System a Historical Survey by Mr. Justice S. S. Dhavan, High Court, Allahabad, pdf.3 Brief history of Law in India by Bar Council of India.4 Jain, Mahabir Prashad. Outlines of Indian Legal & Constitutional History. New Delhi, India: Wadhwa and Nagpur, 2006. Print. Pdf

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 discouraged ; 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".5

The ancient wisdom of Indians was of an eye opener for the present day law makers and the general public. The alien rule that India witnessed for centuries had devastated the ethnic, cultural and social awakening that India had in the distant past. The well-developed Legal frame work and the Judiciary firmly bound on the Dharma principle and the pious nature of the Indian people sticking on to the rule of law has enabled India to for a stable and workable judiciary.6

After the attainment of freedom the Indian judiciary has maintained the ancient Indian tradition of judicial independence and integrity.

INDIAN JUDICIARY TODAY

The judicial system provided by the Constitution of India is comprised the three type of courts. At the top, it is Supreme Court, at middle the High Courts and at bottom the subordinate Courts in addition to the Constitution, there are other laws and rules which direct the composition, power and jurisdiction of these courts.7

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and the same is obvious from the many similarities the Indian legal system shares with the English Legal System. The frame work of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it.

5 Ibid.6 Concept of Judiciary in Ancient India by Rajendra Kumar. M Advocate, Mrudamgasylam, North Railway Station Road Kochi- 682 018 Volume : 2 | Issue : 9 | Sept 2013 • ISSN No 2277 – 8160, pdf.7 Paper on Historical Background Of Judicial System In India, pdf, available at www.shodhganga.inflibnet.ac.in

The Constitution of India is the supreme law of the country, the fountain source of law in India. It came into effect on 26 January 1950 and is the world’s longest written constitution.

It not only laid the framework of Indian judicial system, but has also laid out the powers, duties, procedures and structure of the various branches of the Government at the Union and State levels.8 Moreover, it also has defined the fundamental rights & duties of the people and the directive principles which are the duties of the State.

Inspite of India adopting the features of a federal system of government, the Constitution has provided for the setting up of a single integrated system of courts to administer both Union and State laws. The Supreme Court is the apex court of India, followed by the various High Courts at the state level which cater to one or more number of states.9 Below the High Courts exist the subordinate courts comprising of the District Courts at the district level and other lower courts.

An important feature of the Indian Judicial System is that it’s a ‘common law system’. In a common law system, law is developed by the judges through their decisions, orders, or judgments. These are also referred to as precedents. Unlike the British legal system which is entirely based on the common law system, where it had originated from,10 the Indian system incorporates the common law system along with the statutory law and the regulatory law.

Another important feature of the Indian Judicial system is that our system has been designed on the pattern of the adversarial system. This is to be expected since courts based on the common law system tend to follow the adversarial system of conducting proceedings instead of the inquisitorial system. In an adversarial system, there are two sides in every case and each side presents its arguments to a neutral judge who would then give an order or a judgment based upon the merits of the case.11

Indian judicial system has adopted features of other legal systems in such a way that they do not conflict with each other while benefitting the nation and the people. For example, the Supreme Court and the High Courts have the power of judicial review. This is a concept prevalent in the American legal system. According to the concept of judicial review, the legislative and executive

8 THE MISSION AND VISION OF INDIAN JUDICIARY by (Dr. K.N. Chandrasekharan Pillai) available at www.nja.nic. pdf9 The Judiciary In India: A Hunger And Thirst For Justice by P.N. Bhagwati & C.J. Dias Former Chief Justice of the Supreme Court of India and Member (and former Chair) of the UN Human Rights Committee. And President, International Center for Law in Development, New York.10 ‘JUDICIAL ACTIVISM UNDER THE INDIAN CONSTITUTION’ Address by Hon’ble Mr. K.G. Balakrishnan, Chief Justice of India (Trinity College Dublin, Ireland – October 14, 2009) 11 Ibid.

actions are subject to the scrutiny of the judiciary and the judiciary can invalidate such actions if they are ultra vires of the Constitutional provisions. In other words, the laws made by the legislative and the rules made by the executive need to be in conformity with the Constitution of India.

INDIAN JUDICIARY’S NEED

In spite of being a well-knit system, there are quite a few problems of the Indian judiciary. The main problem is the lack of correct and effective judgments. The Indian judiciary is often criticized, perhaps justifiably, for the erroneous judgments given. One has to have some understanding of the Court system and its working to be able to appreciate this problem. The great weakness of our judicial process is that it lacks theoretical nourishment. 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).12 But what about today?

Today, the growing criticism of the judiciary for its alleged lack of taking accurate decisions is now taking its toll. The Constitution has no provision for disciplining a judge or any age criteria for selection of a judge except for High Court and Supreme Court judges. Infact, this given criteria too is an ingredient to the insufficiently experienced judicial authority.

Alexander Hamilton observed that judges in a constitutional democracy possess “neither force nor will but merely judgment.”13

The judicial role has expanded but the institutional legitimacy of the judiciary still depends on the quality of the judgments that judges make. Even the most talented and dedicated judges surely make occasional mistakes, but the public understandably expects judges to avoid systematic errors.14 But what about judges? In the day-to-day operation of the legal system, judges are more important.15 Psychologists suspect that even though judges are well-trained, highly motivated decision makers, they are vulnerable to cognitive illusions.16 The reason behind the same is the lack of experience.

12 Katyayana 5713 FEDERALIST PAPERS, No. 78 “([The judiciary] may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.).”14 ROBERT E. KEETON, KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM § 1.3.1 (1999) (noting that judges are obliged to make an impartial application of principles).15 RONALD DWORKIN, LAWS EMPIRE 1 (1986) (“It matters how judges decide cases.”)16 See VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 129 (1986).

At the present day scenario, the age criteria for appearing in a judicial exam or rather in other words becoming is judge is as follows17:

Magistrate

1. In Delhi: person must have attained 21 - 32 years, as on 1st January of that year.2. Outside Delhi: person must have attained 35 years, as on 1st January of that year.3. Qota: person must have attained 40 years, as on 1st January of that year.

In other words, Age Limit: 21-35 years (varies from state to state, 40 years for Haryana state only). 

Experience required:

If he/she is an advocate, attorney or pleader then he/ she must have practiced as an advocate, attorney or pleader in High Court or Courts Subordinate for not less than 3 years.

If he/she is a fresh Law graduate then the candidate must have secured the degree in law by passing all the examinations leading to the degree in the first attempt and, has secured in the final year of examination of the degree in Law or in the case of candidate holding Master’s Degree (L.L.M) in Law in the final year examination not less than 55% marks

If he/she is a member of Ministerial staff to the High Court or, member of ministerial staff to the courts subordinate to High court or, member of staff working as Legal Assistant and above in the legal section of the Law and Judiciary Department in Mantralaya or, member of ministerial staff of the Office of the Govt. Pleaders attached to those courts, such employee have put in 3 years of service after obtaining degree in Law.

Additional Session

1. Minimum: 35 years2. Maximum: 45 years

Experience required: He/She must have been an advocate of not less than seven years standing as on the first day of January of that year.

17Law commission of India 101-169/Report118.pdf

High court

1. Minimum: 45 years2. Maximum: 55 years

Experience required:

He/She has for at least ten years held a judicial office in the territory of India. He/She has for at least ten years been an advocate of a High Court or of two

or more such Courts in succession.

Supreme Court

1. Minimum: 45 years2. Maximum: 55 years

Experience required:

He/She should have been a judge of a High Court or two or more such Courts in succession for a minimum time of five years. Or,

He/She would also be eligible if the candidate had been a High Court Advocate for a minimum time of ten years.

In consideration to the above mentioned age and experience specifications it is clearly highlighted that the estimation of having a quality judgment is marked at very low levels. Even if the judges utilize greater resources then no guarantee can be provided protection against the erroneous judgments.18 Judges obviously can use the resources they have to obtain better research and background information to inform their decisions, but their age and experience are not adequate enough to gather the infinite resources to deliver the correct and effective judgment.19 Judges will believe that their decisions are sound and choose not to spend the extra time and effort needed to make a judgment.

18 Steven J. Kachelmeier & Mohamed Shetata, Examining Risk Preferences Under High Monetary Incentives: Experimental Evidence from the People’s Republic of China, 82 AM. ECON. REV. 1120 (1992).19 Ibid.