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Report No. 14

4. Indigenous System

1. Scope of Enquiry.-

The task assigned to us of suggesting ways and means for the improvement of our present system of judicial administration, does not preclude us from considering radical or revolutionary measures which may make it more suitable to our needs.

2. Criticism of existing system of Judicial Administration.-

It is said in some quarters that the present system of administration of justice does not accord with the pattern of our life and conditions. We are told that large masses of our population are illiterate and live in the villages. These conditions demand, it is said "a system of judicial administration suited to the genius of our country" or "an indigenous system". Even the Uttar Pradesh Judicial Reforms Committee of 1950-51 stated, though by a majority that "it cannot be denied that the rules of procedure and evidence which they (the British) framed to regulate the proceedings in court, were in some cases foreign to our genius and in many cases were made a convenient handle to defeat and delay justice".1

1. Report, p. 1.

3. General support for existing system.-

In the circumstances, it became our duty to elicit opinion on these views. The answers we have received state with almost complete unanimity that the system which has prevailed in our country for nearly two centuries though British in its origin has grown and developed in Indian conditions and is now firmly rooted in the Indian soil. It would be disastrous and entirely destructive of our future growth to think of a radical change at this stage of the development of our country.

It has been pointed out that those who have supported a reversion to an indigenous system of judicial administration have not really applied their minds to the question. It would be ridiculous, it is said, for the social welfare. State envisaged by our Constitution which itself is based largely on the Anglo-Saxon model to think of remodelling its system of judicial administration on ancient practices, adherence to which is totally unsuitable to modern conditions and ways of life. We may as 1k ell, it is said, think of rejecting modern medicine and surgery and content ourselves with what the ancients knew and practised.

4. Radical changes not necessary.-

Nevertheless, we must fail to distinguish between the essential principles of our present system and its subsidiary features like clumsy and cumbrous procedures. It should not be forgotten as pointed out earlier that those charged with fashioning our laws, have while regarding the English laws and institutions was a model, consciously and continuously attempted to modify and mould them to suit Indian life and Indian conditions. That attempt was continued throughout the period of British rule with the subsequent association in an ever-increasing degree of Indian legislators, Indian Judges and Indian administrators in the making of laws and the administration of justice.

It may be that we have failed to make our laws and our court systems and procedures conform sufficiently to the needs of our people. To that extent, no doubt, they require modification and adjustment. We have endeavoured to give attention to these points of view, but such changes can only be made within the framework of a system suited to our present conditions and needs, which are the needs and conditions of a highly organized welfare society with a developing industrial economy.

We have, therefore, in considering the changes which are necessary and practicable made a distinction between the fundamentals which must exist in any modern system for the administration of justice and the procedures and practices by which the system is to be operated. We agree with the observations of the Uttar Pradesh Judicial Reforms Committee 1 that "the need of the hour is that rules and procedures and evidence should be so simplified that justice may be available to the rich and the poor alike and that it may be prompt and effective".

But simplification cannot mean a sacrifice of fundamentals and essentials. Perhaps, as pointed out in a note of dissent to the report of the Committee, "the real need of the hour is the inculcation of a higher sense of duty, a greater regard for public convenience, greater efficiency in all those concerned in the administration of justice." 2In any case whichever way oar needs are looked at, little is to be gained by an insistence on what has been called an indigenous system or a system suited to the genius of our country.

1. Report, p. 1.

2. Report, p. 127.

5. Nature of indigenous system.-

However, we shall briefly endeavour to gather the essentials of such an indigenous system as existed in our country prior to the advent of the British and point out that the essentials of our ancient system were not very different from those of our present system.

It is undoubtedly true that a study of the past is very desirable when we are planing for the future. But it should not be forgotten that a system of judicial administration is a matter of slow growth and its advance is moulded by contemporary conditions and the existing social structure. As society advances from stage to stage its needs alter from time to time and any system which governs the functioning of society or its component parts would also call for progressive modification. In considering the ancient system and contrasting it with the present judicial system, we must always keep in mind the differences in the structure any conditions of society as it existed then and as it is today.

It is not easy to discover the details of the system of judicial administration which obtained in India prior to the introduction of the present system by the British. The materials upon which we can rely are scarce and fragmentary.

6. The Hindu System.-

It is clear that there were two systems one of which may be designated the Hindu system.1 The Outlines of the Smritis, Commentaries and gathered from various ancient books such as the Smritis, Commentaries and Digests. These books yield us valuable information but are by no means comprehensive; moreover they differ a great deal in regard to the details. As these books relate to different periods, it is not possible to reconstruct a well-defined system with reference to them. Many of its fundamental features can be derived from them. In his book on the Hindu Judicial system, Sir S. Varadachariar concludes that2 "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".

1. In portraying the Hindu Judicial System, we have drawn largely from the following sources:

(i) Berolzheimer The Worlds Legal Philosophies.

(ii) S. Varadachariar Hindu Judicial System.

(iii) Thakur Hindu Law of Evidence.

(iv) P. Sen Hindu Jurisprudence.

(v) K.P. Jaiswal Hindu Polity.

(vi) N.C. Sen Gupta Sources of Law and Society in/ ancient India.

(vii) N.C. Sen Gupta Evolution of Ancient Indian Law.

2. P. 258.

7. The Muslim system.-

The second system may be styled the Muslim system which was based upon the writings of the Muslim jurists and practices of Islamic countries. This system was, however, never in exclusive use in our country. Most of the Muslim rulers followed a policy of non-intervention in civil matters and permitted the Hindu institutions to function. However in cases where the dispute arose between a Muslim on the one hand and a Hindu on the other, or between two Muslims, the Muslim tribunals claimed exclusive jurisdiction. In the sphere of administration of criminal justice, the Muslim system prevailed subject to some exceptions. The system was not popular with the large mass of the people but was in vogue in large parts of the country at the time of the introduction of the present system based the British model. It is, we think, unnecessary to consider the Muslim system in the present context.

8. Development of the Hindu system.-

The Hindu system as outlined in the law books reveals a gradual development. In its early beginnings it was more or less a tribal institution the tribunal dispensing justice being the assembly of the village, the caste, or the family. These may be called the popular courts and they seem to have been the earliest tribunals in the country. They, in fact, were a part and parcel of the social structure. The territorial unit was the village which in those days enjoyed a considerable measure of autonomy. There arose and developed courts, if such a term could be applied to them, of the family, the caste and the village.

Though there is no authority for the view that these popular tribunals derived their powers from the king, such a view slowly came to be held. It is not possible to gather with any certainty the exact scope of the functions of these tribunals. Colebrooke asserts that they indicated merely a system of arbitration. There is a suggestion in some texts that before resort could be had to the Royal courts, local remedies had to be exhausted; but whether this was ever the correct position, it is difficult to say.

Most of the later Hindu rulers and the Muslim rulers were mainly interested in the collection of revenue and the retention of the authority of these organisations facilitated this task. Attempts were made for the integration of these popular courts with the Royal courts but they did not succeed principally because of the decay of the Hindu Royal power after the time of Harsha.

9. Structure of courts.-

Though ancient writers have outlined a hierarchy of courts as having existed in the remote past, the exact structure that obtained cannot be ascertained with any definiteness; but later works of writers like Narada, Brihaspathi and others seem to suggest that regular courts must have existed on a considerable scale, if the evolution of a complex system of procedural rules and of evidence can be any guide.

Popular tribunals.- Popular tribunals, particularly the village courts survived for a long time and existed even at the time of the commencement of the British rule in India. Their continuance was favoured by their antiquity and the absence of any other effective tribunals within easy reach; the structure of the village society in those days; the nature of the principal functions which these tribunals discharged which were conciliatory; and the non-interference by local rulers with the working of these tribunals.

Royal Tribunals.- In contrast to these popular tribunals, the Royal tribunals were subject to frequent changes. Except for the fact that ancient literature speaks of the King as the source of dharma and regards him as charged with the duty of protecting dharma, there is nothing to show that the king personally was incharge of the administration of the law. He administered law and justice generally through officers or the sabhas appointed for the purpose.

But though the details of the working of these courts are not available, there is evidence that a procedure of a specified kind was being followed in these Royal tribunals. Obviously, systematized rules were not called for in the popular or village courts; but some sort of definite procedure seems to have obtained in the Royal courts. It must not also be forgotten that the law enforced in those days was not, apart from specific edicts, statute law but was moral law. It was regarded as a sacred and religious duty to vindicate the truth and uphold the righteous and punish the wrong-doer.

10. Procedure.-

Under the ancient procedure, every person had a right of approach to the judicial tribunals. The court was bound to hear him and take necessary action. There appears to have been no court-fee for the institution of the suit, though there was provision for the payment of a small percentage of the value of the claim by the successful party. What may be called the abuse of the right of suit was checked by elaborate rules insisting on an early resort to court or the taking of certain other active steps by the party. Litigation was discouraged amongst persons standing in particular relationships. Fines and penalties could be imposed on persons who came forward with false and unfounded cases. On the criminal side, it was the duty of the officers of the King to bring before the court persons accused of certain specified offences.

11. Pleadings.-

Rules also provided that following a plaint there should be a written reply by the defendant. A reference is made also to a procedure for clarification of the points in dispute analogous to the framing of issues. This was followed by the trial at which evidence was recorded before the final stage of decision by the court was reached.

Evidence.- The rules also provided for ex parte decisions it the case of the non­appearance of the defendant. A plaint could be amended at any time, before the defendant appeared and put in his answer. The defendant had to make his answer in the presence of the complainant and it was the rule that the answer should meet the grounds raised by the plaintiff or the complainant and should be clear, consistent and free from obscurity. The answer could take the form of an administration, denial or special pleading or even a plea of a former judgment.

In the case of an admission, a decree followed immediately; in the other cases, evidence had to be led by the party on whom the burden of proof lay. The expression of "burden of proof" was understood in practically the same sense as it is today. Thakur in his Hindu Law of Evidence refers to the application of such important principles as the exclusion of oral by documentary evidence, the requirement that evidence should be direct and the exclusion of hearsay evidence in those courts.

12. Witnesses.-

Witnesses were examined by the court in the presence of the parties. Provisions also existed for the summoning of witnesses or the examination of witnesses on commission. The texts laid down that the judge should treat the witnesses gently, that none should be punished on mere suspicion and that conclusive evidence of guilt should be available before conviction. There is also a suggestion that the judge himself could undertake the examination of witnesses and that such an examination could be of a thorough­going character; quite possibly this was so for the reason that neither a police investigating agency nor the legal profession appears to have existed in those days. There is, however, no suggestion that the Hindu system corresponded to the inquisitorial procedure that at present obtains on the continent.

13. Legal Representatives.-

It may be noticed that the rules also provided for the impleading of the legal representatives of a deceased party.

14. Judgment.-

The decision of the court was pronounced immediately after the conclusion of the trial. Even in those days, the difference in the consequences of a judgment on the merits after contest and a judgment passed ex parte seems to have been recognised.

15. Appeal and Review.-

It is not quite clear from the ancient books whether the decision of the Royal court was final or was subject to a review or appeal. In the case of the decisions of the popular courts, it seems likely that they could have been taken in appeal to the Royal courts. Sufficient indications, however, exist to show that where a court gave a decision in which the King did not personally participate, the matter could subsequently be brought before him. In certain cases, the matter could be re-heard, possibly on the basis of new evidence and a judgment could also be set aside on the ground of fraud.

We have attempted only a brief survey of the structure and the features of the system as it existed in the past. To go into greater detail appears to us to be wholly unnecessary.

16. Similarities with present system.-

Even this brief picture is sufficient to show how unsound is the oft-repeated assertion that the present system of administration of justice is alien to our genius. It is true that in a literal sense the present system may be regarded as alien. It is undoubtedly a version of the English system modified in some ways to suit our conditions. The English system which had developed through the centuries was pruned to its historical anomalies and technicalities and made adaptable to the conditions in India. But it is easy to see that in its essentials even the ancient Hindu system comprised those features which every reasonably-minded person would acknowledge as the essential features of any system of judicial administration, whether British or other.

We have already indicated that such features as the rules of pleading, the manner in which plaints were to be drawn, the devices to meet an abuse of the right of suit, the rule of evidence, the order in which litigation should proceed, the exclusion of oral by documentary evidence, the rule that evidence should be direct, the rule that hearsay evidence should be excluded, the principle of the burden of proof, the provision for appeal or review are common both to the ancient and the present system. We can even hazard the view that had the ancient system been allowed to develop normally, it would have assumed a form not very much different from the one that we follow today.

17. Benefits of popular courts.-

The reason for the success of the ancient system mainly lay in its popular courts, as we have seen these popular courts were founded on community or caste. There was no such centralization as now obtains by reason of the growth of a strong centralised system of Government. Each village was sufficient unto itself and managed its own affairs without any interference from the King. Their sustaining force was the respect which people had for customary law which, in fact, was the only law prevalent at that time. The group pattern of the then social organisation favoured their successful functioning.

18. The position today.-

Can we in the present social structure think of a reversion to the earlier pattern of judicial administration? The law that is administered today is no longer the customary law. In fact, thousands of statutes and regulations control down to the minutest detail the lives and activities of every citizen of this country. The Legislatures both at the Centre and in the States have undertaken reforms of a far-reaching nature affecting the well-being of millions of citizens. Recently, it was authoritatively stated that between 1st January, 1953 and 30th November, 1957 Parliament had passed more than three hundred fifty bills and in the four years 1953 to 1956, the State Legislatures passed two thousand five hundred and fifty-seven Acts out of which as many as two hundred and seventy-five Acts dealt with land reform.1

In the post-Constitution period, Parliament has passed about six hundred Acts. In addition about eighty-nine Ordinances, twenty-one Regulations and sixty-two President's Acts have been promulgated. A Welfare State has necessarily to undertake legislation on an ever widening front, if the ultimate aim of a socialistic pattern of society operating within the domain of the Rule of Law is to be evolved by democratic process. The enormous legislative output of Parliament and the State Legislatures calls for trained personnel to implement them. No one can assert that in the conditions which govern us today the replacement of professional courts by courts of the kind that existed in the remote past can be thought of.

1. Address of the President of India at the inauguration of the Indian Law Institute: Bulletin of the Indian Law Institute April, 1958, p. 5.

19. Present system in accord with our genius.-

The statement that our present system of judicial administration is not in accord with the genius of our country has therefore no substance. The genius of our country has found expression in our Constitution which enshrines the Fundamental Rights of the people and the Directive Principles of State Policy as the necessary foundation for a new social order. We cannot see how the noble aims enshrined in the Preamble to our Constitution can ever be realised unless we have a hierarchy of courts, a competent judiciary and well-defined rules of procedure.

20. Abolition impossible.-

While we are aware that there are well-founded complaints against some aspects of the present judicial administration, we must emphatically state that the way to reform does not lies in the abandonment of the present system and in replacing it by another. The true remedy lies in removing the defects that exist in the present system and making it subserve in a greater degree our requirements for the present and the future.

To a limited extent, however, it is possible to utilise some of the simple features of judicial administration that obtained in the past. We refer to the popular courts or as they are termed today, the nyaya panchayats. We deal with them in a later chapter in some detail, indicating both their limitations and the extent of their usefulness.

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