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Report No. 77

Chapter 3

The Present System Evaluated: Comparison with Ancient Judicial System

Whether System Unsuited to Indian Conditions

3.1. The present system and its links with traditional methods.-

In answer to the criticism that the present judicial system is unsuited to the Indian conditions and is something alien transplanted on the Indian soil, it may be observed that though some of the changes in the early period of British rule in India were influenced by the system prevailing in England in those days, the changes did not have the effect of ousting the personal laws. No judicial system in any country is wholly immune from, and unaffected by outside influences, nor can such outside influence be always looked upon as a bane.

The laws of a country do not reside in a sealed book; they grow and develop. The winds of change, and the free flow of ideas, do not pass the laws idly by. As has been observed1, even in procedural law, which was codified by the foreign rulers in this country, the basic principles of a fair and impartial trial, which were well-known to their predecessors, were adhered to. In the matter of substantive law as well, the British did not wholly bring in the Western concepts.

The personal law of the various communities living in this country remained the determining factor in questions like succession, inheritance, marriage, caste, religious institutions, etc. New laws were enacted to provide for matters which were either not fully covered by the indigenous law, or where such laws were not clearly defined and ascertainable, or were otherwise not acceptable to the modern way of thinking.

Such outside influences are, however, an integral part of the historical process of development of thought and institutions all over the world, and once the new concepts get assimilated, they cease to be alien in character. Viewed in this light, it seems hardly correct to say that the present judicial system in a foreign transplant on Indian soil, or that it is based on alien concepts unintelligible to our people. The people have become fully accustomed to this system during more than a hundred years of its existence. The procedures and even the technical terms used by the lawyers and the Judges are widely understood by the large majority of litigants.

1. Pakistan Law Reform Commission Report, (1967-70), p. 101.

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