Rajendra Dhar


It would be doubtful that anyone asked to design a justice system would choose to copy the English and Welsh model. It’s contradictory in places, and rather confusing. However, the judiciary is still changing and evolving to meet the needs of our society, and despite its oddities it is widely regarded as one of the best and most independent in the world.

The Indian judicial system is one the world’s oldest legal systems. The Constitution of India is the foundation stone of all matters pertaining to the judicial, the executive and the legislative. Though wide in its scope, it is sensitive to the needs of the people.

Ancient Indian judicial system
From the earliest Vedic ages, India has had a recorded legal history. In fact, a civil legal system might well have been in existence in the Bronze Age and in the Indus Valley civilization. India was always governed by laws as laid down in the Arthashastra way back in 400 BC and then later in 100 AD in the Manusmriti. The Vedas,Upanishads and other religious books of the Hindus, Jains and Buddhists put laws in place in ancient India, so the Indians of these times were already exposed to the idea of living under the law as civilised citizens.

A salient feature of ancient Indian law in these times was that it was secular, though it varied from kingdom to kingdom. Many leading dynasties belonging to ancient India had court systems to deal with civil and criminal cases. The Maurya dynasty and the Mughals are two excellent examples of this, with the latter paving the way for what we know today as common law.

Centuries later, when the Muslims invaded India, Islamic law became applicable to the Muslims living here. But when India came under British rule, this practice was replaced by common law. From this point onwards, the history of India’s modern judicial system begins. The Indian judicial system was derived from the British legal system which they established in India in the middle of the 19th century. It was based on a hybrid judicial system which comprised precedents, customs and legislative law, all of which were valid before the law. Since Indian independence, the Constitution of India has come to be known as its most supreme legal document.

When India attained independence, its Parliament was the venue where the Constitution of India was written by none other than Dr. B. R. Ambedkar for a new and an independent and optimistic country.

The Indian Constitution came into effect on January 26, 1950 and is regarded as the world’s longest Constitution.

The Indian Bar played its own role in India’s independence movement, with Pandit Jawaharlal Nehru and Mahatma Gandhi, themselves being lawyers beyond compare. Their deep insight and knowledge into the law and its relationship with society gave them the focus to write the Constitution of a new nation in the widest scope.

The Constitution of India is the foundation stone of all matters pertaining to judicial, executive and legislative. Though wide in its scope, it is sensitive to the needs of the people. It tried put an end to all colonial interests in India to a certain degree of success and turned its focus on to public welfare. The Constitution empowers the general public, including the weaker sections of society through a system of rights and duties, through the channel of judicial interpretation.

Salient features of the present Indian judicial system.

The Indian judicial system has one integrated court system to deliver to administer state and union laws. At the top of the court structure in India is the Supreme Court, followed by the State High Courts that may serve one or more states. Below these High Courts are subordinate courts that comprise the District Courts that mete out justice at the district level and other courts.

The Indian judicial system has been patterned on the adversarial system of conducting proceedings in court rather than the inquisitorial system. This adversarial system works in a way by which both sides in a case presents its arguments to an unbiased judge who then issues an order or verdict based on the merits of the case.

However an inquisitorial approach by the judiciary in certain matters will definitely help the judiciary serve the the needs of justice better.

Another important feature of our judicial system is that it gives the Supreme Court and the High Courts the power of judicial review. This means that the actions of the executive and legislature are subject to the examination of the judiciary who can nullify their actions if considered unconstitutional.

Independence from whom and what?
It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law.

When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges.

Why is independence important?
It is vital that each judge is able to decide cases solely on the evidence presented in court by the parties and in accordance with the law. Only relevant facts and law should form the basis of a judge’s decision. Only in this way can judges discharge their constitutional responsibility to provide fair and impartial justice.

The responsibilities of judges in disputes between the citizen and the state have increased together with the growth in governmental functions over the last century. The responsibility of the judiciary to protect citizens against unlawful acts of government has thus increased, and with it the need for the judiciary to be absolutely independent of government.

In India even the erstwhile rulers since ancient times appreciated the fact that if they have to survive, independence of the Judiciary should be absolute, so as to gain the trust & confidence of the people.

The ways in which independence is protected and its limits

Whilst an independent and impartial judiciary is one of the cornerstones of a democracy, the practical ways in which this is given effect are often treated with suspicion. For example, judges are given immunity from prosecution for any acts they carry out in performance of their judicial function. They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses in the course of hearing cases. These principles have led some people to suggest that Judges are somehow ‘above the law’.

However, it is not right to say that Judges are above the law. Judges are subject to the law in the same way as any other citizen.

Judicial independence does, however, mean that judges must be free to exercise their judicial powers without interference from litigants, the State, the media or powerful individuals or entities, such as large companies. This is an important principle because judges often decide matters between the citizen and the state and between citizens and powerful entities. Decisions must be made on the basis of the facts of the case and the law alone.

A TRUE JUDGE IS ONE who in the discharge of his duties does not have even an iota of hesitation even in summoning Yamraj & punishing him for his follies if any & if so proved. It will not be out of place to say that even Yamraj would hold such a judge in high esteem.

A TRUE JUDGE IS ALSO ONE who firmly & religiously believes in quick disposal of cases, as every aggrieved expects to get justice whilst he/she is alive and rightly deserves so, otherwise laws of anarchy may start ruling the roost