Recently, the debate is being re-initiated when several judges of the Supreme Court have recommended the decolonization of the Indian legal system. Also, the Chief Justice of India in several of his speeches has expressed the need to `Indianize’ the system to provide the access to justice to the poor. This article while examining the deliberations that took place since the freedom struggle and the decisions taken by the wide array of leaders to `modernize’ and not to `westernize’ the legal system, suggests that to provide access to justice, the need is to make the existing justice system litigant friendly, simple, cost-effective, speedy, and the one that ensures the certainty of justice. Based on the existing social realities, the right-based approach may be prioritized rather than resolving the problems while replacing it with an outdated, centuries-old, elite system that may not be capable to withstand the current or the future socioeconomic realities of the neoliberal, digitalized, and the globalized world. To rectify the issues relating to the pendency of cases, emphasis maybe laid on practical solutions such as expanding the system to make it simple and inclusive, improving the courts/ judges-citizen ratio, filling the vacant positions, investing in resources to strengthen the legal aid and legal literacy areas, ensuring transparency and diversity in the courtrooms, or in other words making the system litigant-centric and justice centric, and to replace technicalities with the alternative modern humane approach.
The Debate on the Indianization/Decolonization of the legal system
The Chief Justice of India in one of his speeches on 18 September 2021 has expressed the need to `Indianize’ the justice system to adapt to the practical realities of society[1]. He argued that the current proceedings are lengthy, expensive, are technical, and therefore need to be localized. The CJI explained that the lack of infrastructure and awareness makes the judicial system inaccessible for the poor and vulnerable[2]. However, objections have been raised about the odd way the term `Indianization’ is being used[3]. Also, he suggested for the use of alternative dispute resolution methods. This suggestion has a danger for reversion of rough justice being imparted by the traditional khap panchayats unless backed by the comprehensive legal literacy goals along with the right-based awareness and sensitization among the masses.
Earlier, a former Supreme Court Judge, Justice Bodbe suggested rethinking legal reform and replacing the current system with the ancient systems such as Kaultilya Arthashatra that according to him was well-developed[4]. Also, Justice Abdul Nazeer in his speech at the 16th National Council Meeting of the Akhil Bhartiya Adhivakta Parishad (ABAP) at Hyderabad in December 2021 recommended the decolonization of the legal system when he hailed the Manusmriti, and glorified Arthashastra and other religious texts[5].
Professor Shamsul Islam[6] pointed out the factual and the normative infirmities in the speech delivered by Justice Nazeer and contended that “by glorifying such inhuman legal systems and decrying the constitutionally ordained legal system has violated the oath”. While quoting the RSS publication `Parm Vaibhav ke Path Par’ (1997), Professor Islam in his article shows that the ABAP was created in 1992 to mold the legal system and to amend the constitution according to the `Bhartiya culture’. The clash of ideologies is evident when the majoritarian group tried to perpetuate its hegemony by forcing a particular ideology propagated by Savarkar and Golwalkar.
Even otherwise, speeches made by the Supreme Court judges, therefore, have serious legal and political connotations[7]. It has been reasoned that in the guise of decolonizing the legal system, the Supreme Court judges are propagating the texts of Manusmriti, which is an antagonist to the constitutional values[8]. Another argument against this suggestion for the decolonization of the legal system is that by invoking the culture and traditions or the `golden era’ of the past, grounded in the religious matrix and embedded in the political ideology of the majoritarian regime, the judges are themselves threatening the independence of the judiciary. Mixing up the religious and political ideologies with the judicial administration is a dangerous precedent that may hamper the effective implementation of the constitutional goals.
Moreover, this debate on modernization, westernization, and Bhartiya culture has been going on for a long time. It is in this context, while responding to similar queries, the Fourteenth Report of Law Commission of India in 1958 noted
“the system which has prevailed in our country for nearly two centuries though British in origin has grown and developed in the 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 the country. It has been pointed out that those who have supported the 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 way of life. We may as well, think of rejecting modern medicine and surgery and content ourselves with what the ancients knew and practiced”. (p 24)
Also, another issue regarding the debate on `Indianization’ or decolonizing the legal system is that the proposals offered by the judges while evoking Manusmriti, Arthashatra, and so on are focusing narrowly on the Hindu elite Brahmanical system prevalent then which was used by or apply to only a few powerful and privileged in the pre-colonial times. The proposal has not examined the justice delivery system followed by the masses then. The Law Commission in its 14th report suggests that the ancient indigenous system was built on the popular courts which follow the customary laws in the pre-Vedic period before dharmashastras or Vedas were written[9]. The system of law evolved gradually with early beginnings lie in the tribal institutions where the tribunals or the popular courts such as assembly of village or caste dispense justice. These were the part and the parcel of the social structure where a village enjoy considerable autonomy away from the theme of centralization of powers as being done now. These tribunals derive authority and power from the king. There are suggestions in the literature of the Royal courts which could be accessed only once local remedies are exhausted. A proper study on the customary laws, the tribunals, their functioning and limitations, and the suitability or the viability of this old system in the current context becomes essential before any such proposal is deliberated upon. Therefore, in short, there is a need to consider the way the judicial authority and the structures were organized in ancient times and how those may be adapted in the modern globalized world, if possible. Selectively picking a few of the ancient scholars from the vast enriching history without examining the limitations or suitability of their theoretical propositions, to push as an alternative seems to be an irrational choice in today’s era.
Moreover, it has been said that over the decades, the British legal system, though alien, was pruned and adapted to suit the Indian conditions after much deliberations and discussions. Professor Upendra Baxi (1986) explained that during the colonial era too, questions were raised regarding the suitability of the western legal system for a `peasant Asian society’, and arguments were raised that if the elite Hindu system could replace the British system. He described that the institutional normative and cultural continuity of the British Indian legal system including its norms, ideologies and values are `were consciously examined, accepted and adapted to the needs of independent India’[10]. He further argued that the Indian legal system retained certain distinct characteristics of the British Indian Legal System such as a non-participative, non-democratic, top-down elite approach that remained unconcerned and aloof with the needs of the masses. Hence, the Indian legal system is neither a colonial imitation nor it is an alien system but it has been Indianized with its distinct advantages and its limitations.
Many ways of Interpreting Indianness
The term Indianness has been interpreted in various ways over the decades. During colonial rule, the British officers and administrators were hired by the imperial rulers to run the administration in India. The Indian nationalists then demanded to Indianize the bureaucracy by arguing that more Indians be appointed to the administration. Indianness, therefore, in this sense implied freedom from colonial rule. However, in the post-colonial nation using the term Indianization or decolonization, indicates narrow interpretation that is leading to the crystallization of an undemocratic nation-state with fewer discussions or debates. Revival of traditional religious ideologies while glorifying the unsubstantiated past undermines the values of the freedom struggle the nation has been gone through. It promotes the regime’s populist and political agenda that underscore the concept of `decolonization’[11]. This hollow ideology is denying the democratization of public spaces that may foster increased access to diverse ideas in a transparent manner.
The Rich Legacy of the Indian Freedom Struggle
The freedom struggle in India lasted long. Several historians put it from 1885 to 1947. This movement incorporated various trends and threads that range from the extreme Left to the extreme Right viewpoints against colonial rule[12]. The understanding of colonialism was evolved over the period based on the realities that existed then as there was no readymade anti-colonial ideology available during the 1800s. The struggle gradually evolved from `struggle about colonialism’ to the `struggle against colonialism’. It was also reflective of the fundamental contradiction between the interest of Indians and that of the British rulers and had twin objectives – it was against the imperial rule as well as for the new nation in making.
From the initial stages, the freedom movement adopted a pro-poor broad, international orientation and argue for industrialization along with the radical agrarian reforms. Despite the pain of partition, India went through, it succeeded in enshrining a secular, socialist, and democratic spirit. Away from the religious, caste-based devotions or loyalties to the local chieftains or traditional rulers, to build a popular anti-imperialist movement, the leaders work on the inner struggles based on obtaining a balance between the interests of different classes, castes, strata, groups and ethnicities simultaneously by unifying against the colonial agenda. It is during this phase, that Congress emerged as a movement, and not as a party. The object of this movement was to lay a foundation of a secular and democratic nation and to develop and propagate an anti-colonial nationalist ideology. The imperial rulers denied existence and legitimacy to this national movement, yet the nationalists with different ideologies and backgrounds together fought against imperialism and proposed for a representative government that reflects the will of the people.
The doctrine of the sovereignty of people was recognized from the earlier period when it was realized that the `Kings are made for people and not peoples for their Kings’. This constructive strategy has its ups and downs as it involves large masses that struggled for a long time. It underwent constant ideological transformations. The movement deployed different strategies at different points of time ranging from mass agitation to armed rebellion and satyagrah by millions of men and women who were mobilized in myriad ways and sustained the movement to organize the powerful struggles through their grit and determination to create a modern nation.
The British conquest and continuous dissemination of colonial culture and ideologies have led to a contemplation of traditional prevalent social and religious life. It was a cultural-ideological struggle against the backward traditional elements that were much visible in the situation of women, debilitating situation due to caste and practice of untouchability and numerous other constraints marked by bigotry, status, authority and blind fatalism. Nationalist leaders such as Raja Rammohan Roy as early as in 1828 recognized the need to introspect the strengths and weaknesses of the indigenous cultures and institutions and suggested reforms. The Brahmo Samaj, the Parmahansa Mandli, the Prarthana Samaj, the Arya Samaj were some of the prominent movements that rose to reform the prevalent traditional beliefs. Besides the regional and caste movements, there were those extremely humanist in orientation informed by the rationalism and religious universalism, also made their way. Ishwar Chand Vidyasagar, Mahadev Govind Ranade, Dayanand Saraswati, Vivekanand, Jyotiba Phule, Savitribai Phule, Narayan Guru, Syed Ahmed Khan, Keshabchandra Sen and many others contemplated reforms that were neither based on the revival of the past nor break with traditions.
These ideas neither blindly imitated the western culture nor adopt westernization, but the reformers aimed at modernization while discarding the hegemony of the colonial culture. The practice based on faith was challenged by bringing faith itself into question and using the rational approach to pose an alternative to then prevalent exploitative social practices. For instance, Raja Rammohan Roy demonstrated that Sati has no religious sanction, Vidyasagar defended widow remarriage using scriptural understanding, Dayanand based his anti-casteism on the Vedic authorities whereas the evils of child marriage and polygamy were challenged on the medical grounds. In the religious sphere, attempts were made to eradicate idolatry, polytheism and replace the priestly monopoly of knowledge with simple rituals to eliminate exploitation. As per these ideas, the practice of caste and patriarchy not only militates against patriotism but also negates the idea of democracy.
Hence, the process of decolonization was a long-drawn struggle against the might of the imperial powers that led to unthinkable human sacrifices with the object of obtaining freedom from the shackles of imperialism as well from unwanted traditional practices to forge a progressive, rational democracy that strives to create an egalitarian society. The national movement was based on the anti-colonial ideology with a vision for a civil, democratic, secular, and socially radical society whereas the Indian economy was visualized as independent, self-reliant, and pro-poor in its orientation that could create a base for a politically active and awakened citizens. To overlook this process of decolonization and Indianization that took place then, and to ignore the long freedom struggle and sacrifices made by the millions, to push the political agenda of the majoritarian regime is not only undesirable but also objectionable.
The Unjust Emphasis on the Golden Past
Despite the emphasis on the modern, rational approach of governance as visualized by the nationalist leaders during the freedom movement, the proposals that are emerging time and again to lay undue emphasis on the golden past only wanted to revive the exploitative customs and traditions and the age-old vices of caste, patriarchy, illiteracy, ignorance and exploitation. Perhaps, such regressive ideology may help a few to reap the benefits in terms of privileges and power. For the prosperity of a handful, this approach is denying progress to more than a billion-plus population. The debate on decolonization is pushing the nation back into the clutches of offensive practices that are against the grain of an egalitarian order.
Even during the Constituent Assembly debates, the plea of Indianization was raised by several members such as Kengal Hanumanthaiah, a member from Mysore, who said “We wanted the music of Veena or Sitar, but here we have the music of an English band”. Also, during the making of the constitution, Organiser, the mouthpiece of RSS, opposed it by saying that there is nothing `Bhartiya’ about it[13]. This conservative mindset also ferociously opposed the Hindu Code Bill, introduced by the then Law Minister, Dr. BR Ambedkar. The Bill strived for equal rights for women met with antagonism over its perceived interference with religious matters[14]. In March 1949, an All India Anti Hindu Code Bill Committee was constituted that claimed that the Constituent Assembly has no right to interfere with the personal laws based on Dharamshastras[15]. A group of men organized a public rally on 11 December 1949 at the Ramlila ground in Delhi to condemn the Bill[16]. Ambedkar resigned from the position of law minister in October 1951. Later, Pt. Nehru fragmented the Bill. Consequently, the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoption and Maintenance Act were passed between 1952 and 1956. Opposition still erupted when the conservatives used the language of the sanctity of marriage, loosening of family bonds, and termed divorce as a western concept.
The conflict between the modern progressive, egalitarian secular values on the one hand and the regressive, age-old traditions on the other, was visible at the time of the drafting Constitution as well as the during the making of the Hindu Code Bill and it continues to exist today in the `New’, `Shining’ and the `Atam-nirbhar’ India in the twenty-first century[17]. Over the decades, arguments have been also raised about the problematic implementation of constitutional provisions. To overcome these ills, the constitution has been amended more than 100 times and is still working with all its strengths and weaknesses[18]. Yet, this continuous battle against constitutional values overlooks the ideas that aim to modernize the legal system as well as to progressively transform the country.
Addressing the Colonial Hangover by replacing it with a feudal system is Futile
Though the colonial hangover ranging from training of bureaucrats, the way the laws are interpreted, the language and the dress[19] of the office bearers that are deemed as un-Indian[20] all are leading to numerous problems, however, these cannot be done away by replacing it with the centuries-old outdated medieval system. To replace the black coat and the white band with a bhagwa chola or a dhoti in 21st century India is redundant and pointless. The sensible approach is to look for the modern alternatives with which the current and the future generations of lawyers and law students could relate.
In the neoliberal globalized, digitalized world when India is aiming to compete with the other powerful nations, the prerequisite is to evolve a modern system that is right-based and weaves into the idea of individual and collective rights. Addressing basic issues such as eradicating hunger and poverty, eliminating malnutrition, achieving the goals in terms of education, and health, to aim for women safety all become significant. India needs to march ahead in terms of global Development Indicators such as the Global Hunger Index, Democracy Index, the Human Rights Index, Gender ranking, and so on. Other alternatives that exist and are followed globally, in the terms of human rights indicators or sustainable development goals may also be examined while thinking of the alternative approaches to the legal system. India is a signatory to various International Human Declarations and Covenants. The nation has made promises to safeguard human rights and many of these commitments are not fulfilled as yet. By bringing in the debate to revive the ancient culture, attention is being diverted from the core issues affecting the nation.
The debate around the Indianization or decolonization also ignores the fact that urgent attention is required to examine the various aspects of the legal system such as paying attention to the problems litigants face, the aspects relating to lacunae in providing the legal aid, the pendency of cases, the number of staff in the courts, the training and sensitization of police, prison reforms or in general, the efficiency and effectiveness of the system. Access to justice is a broad term that encompasses not only number of litigants approaching the courts, availability of services, or the number of pending cases before the courts but it also implies, making courts fair, just and accessible[21]. The purpose of the existence of courts is to serve the litigants, to provide them relief, yet, the litigants remain the most neglected lot in discussions.
Essential is to scrutinize the legal provisions such as those relating to sedition law, or outraging the modesty of women, preventive detention laws, and so on that are the colonial relics and need to be removed. Yet, the courts in post-colonial India have not thought of taking suo moto actions in this regard despite the demands being raised by several human rights and women’s organizations. Rather, similar new tyrannical laws have been legislated by successive governments such as UAPA, NDPS law, AFPSA, among others that are against the provisions of the constitution in independent India and the courts in their power have not taken actions to do away with these provisions.
On the other hand, several people-friendly legal concepts that have emerged over the decades have been diluted by the privileged few in the guise of easing bureaucratic operations. For instance, the concept of Public Interest Litigation (PIL) is truly an Indian concept that has been initiated during the 1980s, where the judges treated a postcard as a petition and took proactive action[22]. It has been evolved to reach out to the common person as an easy way to enhance the people’s access to justice. Various people-centered decisions were taken then raised hope and has truly reflected how the power of law may be channelized to address the social realities. But in the next decade, the enthusiasm faded and on the mistaken grounds of misuse of PILs, the courts started imposing penalties thus dissuading the vulnerable to file PILs[23]. Similarly, the Right to Information Law[24], the Prevention of corruption Law, the concept of nyaya panchayats, the Lok Pal Bill, the whistleblower law, the employment guarantee law, the domestic violence law[25], and many such similar people-friendly provisions have been weakened and diluted over the years by the Kafkaesque bureaucracy. All these laws and ideas that emerged in post-colonial India need to be re-examined and be re-strengthened to enable the marginalized people to access justice.
The Need is to Address the Problems with the Legal System
There are other multiple fundamental flaws with the legal system that may be rectified by taking appropriate steps. The Constitution imagines the creation of just, equitable and equal social order, however, the concept of access to justice does not factor into account the inaccessibility of the system or the financial burden it places on the ordinary litigants. Several studies have highlighted the concerns that lower courts are underfunded, lack trained staff, and are mired with an absence of infrastructure, these factors coupled with the lack of legal literacy among litigants, caste and sex-based discrimination among both lawyers and litigants and widespread corruption adversely affects the legal system and need solutions[26].
One of the major problems with the legal system is the huge pendency of the cases. Between 2010 to 2020, the pendency of the cases grew by 2.8% annually[27]. As of September 15, 2021, over 4.5 crores cases are pending of these 87.6% are before the subordinate courts and 12.3% in high courts. There is a shortage of judges. In the High Courts, 465 out of 1098 or 42% sanctioned posts are lying vacant. Five high courts, Telangana, Patna, Delhi, Rajasthan and Odisha, have more than 50% vacancies. Urgent is to fill in the vacant positions. Investing resources to expand the system to improve the judges-citizen ratio is the priority.
Courts are patriarchal and casteist in composition. Historically, courts are not representative of all the sections of society. Rather the courtrooms remain as tradition-bound, elitist arena dominated by the male members from the upper caste. Despite the constitutional guarantees relating to equality, Indians have not made a departure from the colonial mindset. The representation of women judges remains low. In the Supreme Court, Justice Fatheema Beevi was appointed in 1989 as the first woman judge. Since then, only 10 women judges have been appointed. As of January 2022, the Supreme Court has four women judges out of the strength of 32 and in the High Courts, women judges account only for merely 11%. Though the state is paying lip services to the issue of gender discrimination, no steps have been taken to hire women judges at the high court level. The CJI though argued for 50 percent representation of women in the judiciary[28], yet a lot of difference exists in terms of rhetoric and actions taken. The focus, therefore, has to be laid on fulfilling the promises of substantive equality and to uphold the principle of diversity in the courtrooms.
Other impediments to justice include the high cost of litigation. Legal aid is grossly underfunded. Research shows that the per capita expenditure on legal aid is merely 75 paisa per annum (as in 2017-18) when 80 percent population is eligible for it. The Indian Justice Report 2019[29] shows that most of the states have failed to utilize the existing resources. Only 15 out of 35 states and union territories have utilized at least 90 percent of the budget allocated for prisons. No states could utilize NALSA funds, though legal aid is an important mechanism to ensure justice. A report by the Institute of Economics and Peace in 2018 calculated that the inability of the state to deliver timely justice resulted in preventable violence that costs India as much as 9 percent GDP. Strengthening the legal aid and legal literacy mechanism is the need of the hour. Comprehensive prison reforms, police reforms, scrutiny of legal aid, all are required in terms of budget, human resources, workload, diversity, efficiency and effectiveness.
Judiciary remains a low priority when it comes to funding. A report claimed that India spends 0.1 percent in the judiciary as compared to 2 percent of GDP on defence[30]. Low budget allocation has marred the system. In 2020-21, the Union Budget allocation to the autonomous bodies such as the Indian Law Institute and the NALSA is further cut to 117 crores as compared to 159 crores in the previous year. For the creation of infrastructure facilities for the judiciary, the allocation is sharply reduced to 762 crores as compared to 900 crores in the previous year. Allocation and spending of resources to achieve the commitments in terms of justice is another area that needs scrutiny.
Another issue is that frequently, legal technicalities and complex legal language or legalese are deployed by the judges and lawyers while deconstructing the subjective issues of the clients. The excessive use of legal jargon makes law difficult and out of reach for a common person when the same may be explained in simple language[31]. The courts need to self-reflect when they write judgements running into hundreds or thousands of pages in a complex technical language or legal jargon and are far from the reach of a common person.
Moreover, in the current environment when incidences of hate speeches, mob violence, targeting the marginalized are on increase and rising due to the expanding culture of impunity, important is that courts take suo moto actions to fix the accountability of the state, to penalize the perpetrators and to recompense the victims. However, the power of law is rarely being deployed to maintain the rule or order. All kinds of stereotypes, biases and myths prevail in the courtrooms that hamper the delivery of justice that needs to be examined and rectified[32]. Also, there are urgent matters pending before the apex court for long such as the citizenship amendment law, reading down of Article 370 without due parliamentary process, the continuing misuse of UAPA, matters connected to the lives and livelihood, and many others that need immediate attention and are adversely affecting the image of the legal system[33]. Dispensing the priority cases that affect the rights of marginalized and poor is an immediate step that is required.
All these flaws are man-made or system-made and exist because of the way the system operates. These errors or the `operational gaps’ cannot be attributed to the colonial past. To overcome these challenges, the courts need to self-reflect. The need is to take practical steps by investing more resources in the system, to prioritize justice to make it more inclusive and simpler. The legal system needs reforms to plug these lacunae to make the justice delivery mechanism people-friendly[34]. The system needs to minimize the procedural barriers so that accessing justice becomes simpler. Improving the court infrastructure in terms of the number of courts, and making proceedings easier for litigants is one of the necessary steps. Ensuring transparency at every step is essential. Legal proceedings have to be made more participatory and inclusive. What is required is to take simple steps starting from introspection to filling vacant posts, improving the courts/ judges-citizen ratio, taking up prison reforms, legal reforms to make the system transparent and inclusive.
The top-down approach is leading to more problems. Over the decades, the system has adopted an elite approach rather than mobilizing laws to provide effective justice or dismantle the social and historic inequities that existed in the society. The law-making and enforcement remained as a prerogative of a few privileged elites that necessarily affects its quality, diffusion, acceptability and effectiveness. The power remained highly centralized. The common people hardly had a say in the making of laws when they are those who are most affected by those laws. Gram sabhas, schools, universities, voluntary organizations, all may play a crucial role in law-making where proactively laws may be debated and made. Vulnerable groups may play a significant role in legal innovations but remains a neglected lot. The system, therefore, needs to be examined from this perspective and has to acquire an inclusive approach.
Fostering People-Centered Justice is essential
On 26 January 1950, we the people of India have made commitments to ourselves. Decades later, we still lag in fulfilling those promises. In this situation, the role of the legal system is to empower the marginalized, to eradicate inequalities and all forms of oppression to enable the country to truly establish itself as the world’s largest democracy. The country with a billion-plus population has to enhance and channelize the power of its youth to excel in the field of science, technology and others by creating a robust mechanism to grow ahead in terms of Sustainable Development Goals.
People repose faith in the law with the belief that it is being made to address the grievances and to right all kinds of wrongs. Therefore, the onus lies with the system that it consistently takes steps to be responsive and deliver justice in efficient, impartial, affordable and effective ways.
In the neoliberal era where digitalization is denting society and new forms of interventions are required, invoking the `golden past’ is seemingly regressive and hardly makes sense. This debate is diverting attention from the pressing issues relating to access to justice and the rights of individuals and communities. The role of the courts is to protect and foster constitutional values. Focus on a particular ideology indicates divergence from the constitutional duties. Even the Law Commission in its 14th report made similar suggestions when it observed that
“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 lie in the abandonment of the present system and replacing it with 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”. (p. 31)
Even earlier, during the freedom struggle too, the broad-based socio-economic and political vision of the leaders with various ideological approaches was debated and discussed the idea of India from various perspectives and finally reached to the conclusion that focus is laid on the democratic, civil libertarian and secular ideals based on egalitarian social order independent of foreign policy. The freedom struggle would not have been possible without the active role and selfless commitment of the masses including the workers, peasants, tribals, youth, artisans, merchants, the marginalized, and men and women from different streams of society. It is this resolve of the people that has been weaved into the Constitution. Its legacy belongs to people of India regardless of the ideology one may follow.
Based on the existing social realities, the right-based approach may be prioritized rather than replacing the existing legal system with an outdated, centuries-old, feudal, elite system that may not be capable to withstand the current or the future socioeconomic realities of the neoliberal, digitalized and the globalized world. Resources need to be utilized to strengthen legal aid and innovative programs may be developed to enhance legal literacy among masses. An increased civic or public participation in the making and implementation of the law may help in long run. Overall, it may be said that access to justice that is fair, quick, efficient and affordable is the primary right of every citizen and is linked to the overall socio-economic development of the country. The legal system as an organ of the state should be made accountable to people. The system itself has to build-in the process of accountability. It has to be made people-friendly that aims to empower the marginalized, or in other words, make the system litigant-centric and justice-centric, and replace technicalities with the alternative modern humane approach to strengthen people’s faith in the law and governance.
Adv Dr Shalu Nigam is working at the intersection of gender, law, governance, and human rights issues. She has done PhD in Social Work and has obtained a law degree Her recent publications include The Founding Mothers: 15 Women Architects of the Indian Constitution (coauthor, 2016) and Women and Domestic Violence Law in India: A Quest for Justice (2019) and Domestic Violence Law in India: Myths and Misogyny (2021). She is a regular contributor to countercurrents.org and has published in South Asia Journal, Social Action, International Journal of Gender and Women’s Studies, and Legal News and Views. Some of her writings are available here and here
[1] Text of the Speech delivered by Hon’ble Chief justice of India justice NV Ramanna at an event organized by the Karnataka State Bar Council to pay a tribute to Late justice MM Shantanagoudar on 18 September 2021 https://www.theleaflet.in/wp-content/uploads/2021/09/Tributes-18092021-1.pdf
[2] Chaturvedi Arpan (2021) Chief Justice Ramanna Explains What is Indianization of Justice Delivery, Bloomberg, September 26, https://www.bloombergquint.com/law-and-policy/chief-justice-ramana-explains-what-is-indianisation-of-justice-delivery
[3] Sampath G (2021) What does `Indianisation’ of Justice mean? Focus podcast, The Hindu, October 26, https://www.thehindu.com/podcast/what-does-indianisation-of-the-justice-system-mean-in-focus-podcast/article37176987.ece
[4] Newsncr.com (2022) Indigenization of the Indian Legal System: A Paradox or Just an Irony, January 4, https://www.newsncr.com/national/indigenization-of-the-indian-legal-system-a-paradox-or-just-an-irony/
[5] Bar and Bench (2021) Indianise Legal System; India has oldest Judiciary in the World: Justice S Abdul Nazeer, December 26, https://www.barandbench.com/news/indianise-legal-system-india-has-oldest-judiciary-in-the-world-justice-s-abdul-nazeer
[6] Islam Shamsul (2021) Objection Your Honour: Supreme Court Judge Abdul Nazeer’s Recent Speech Raises Eyebrows, The Frontline, January 28, https://frontline.thehindu.com/cover-story/objection-your-honour-supreme-court-judge-s-abdul-nazeers-recent-speech-raises-eyebrows/article38192921.ece
[7] Raj Kaleeswaram (2022) An unfortunate ideological shift in Judiciary, The Hindu, January 1, https://www.thehindu.com/opinion/lead/an-unfortunate-ideological-shift-in-the-judiciary/article38083370.ece
[8] Raju MP (2022) Call for Indianization is a Fallacy, if Not a Fraud on the Constitution, NewsClick.in January 15, https://www.newsclick.in/call-indianisation-fallacy-not-fraud-constitution
[9] Law Commission of India (1958) Reform of Judicial Administration, Fourteenth Report, Volume 1, Ministry of Law, Government of India, Delhi
[10] Baxi Upendra (1986) The Crisis of the Indian Legal System, Vikas Publishing House, Delhi. P. 42
[11] Rajagopal Krishnadas (2021) Supreme Court’s View on the `Indianization’ of the Legal System have varied, The Hindu, December 29, https://www.thehindu.com/news/national/supreme-courts-views-on-indianisation-of-the-legal-system-have-varied/article38057819.ece
[12] Chandra Bipan, Mridula Mukherjee, Aditya Mukherjee et.al. (2016) India’s Struggle for Independence 1857-1947, Penguin Books, UK
[13] Ali Subashini (2020) The Laws of Manu and What they Would Mean for Citizens of the Hindu Rashtra, The Wire, November 10, https://thewire.in/rights/manusmriti-hindu-rashtra-rss
[14] Sinha C (2012) Debating Patriarchy: The Hindu Code Bill Controversy in India (1941-56), Oxford University Press, New Delhi.
[15] Guha Ramachandra (2007) India after Gandhi: The History of World’s largest democracy, Harper Collins, Delhi
[16] Guha Ramachandra (2015) Bhagwat’s Ambedkar, The India Express, December 10, https://indianexpress.com/article/opinion/columns/bhagwats-ambedkar/
[17] Nigam Shalu (2021) Domestic Violence Law in India: Myths and Misogyny, Routledge, India
[18] Raju MP (2022) Constituent Assembly has rejected need to Indianize, decolonize legal and constitutional system of India, National Herald January, 17, https://www.nationalheraldindia.com/opinion/constituent-assembly-had-rejected-need-to-indianize-decolonize-legal-and-constitutional-system-of-india
[19] Nigam Shalu (2014) The Mystery of Black Coat, Countercurrents.org, August 11, https://countercurrents.org/nigam110814.htm
[20] Hegde Vikram (2021) `Indianisation’ of the Justice Delivery System, The Leaflet, September 27, https://www.theleaflet.in/indianisation-of-the-justice-delivery-system/
[21] MacDowell EL (2015) Reimagining access to justice in the poor people’s courts, Georgetown Journal on Poverty, Law and Policy, XXII (3) 473-543
[22] Desai AH and S Murlidhar (2000) Public Interest Litigation: Potential and Problem, in Supreme but Not Infallible – Essays in the Honour of Supreme Court of India, Edited by BN Kripal et.al. Oxford University Press, Delhi
[23] Chokkar Jagdeep S (2020) Why the Solicitor General is Wrong to call for PILs to be Scrapped, The Wire, May 5, https://thewire.in/law/public-interest-litigation-solicitor-general
[24] Nigam Shalu (2015) The Right to Information Act: Ten Years of Transparency of the decade of ambiguity, countercurrents.org, September 1, https://www.countercurrents.org/nigam010915.htm
[25] Nigam Shalu (2019) Women and Domestic Violence Law in India: A Quest for Justice, Routledge, India
[26] Krishnan J et.al. (2014) Grappling at the grassroot: Access to Justice in India’s lower tier, Harvard Human Rights Journal, 27, 501
[27] PRS (2021) Pendency and Vacancies in the Judiciary, https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary
[28] Mahapatra Dhananjay (2021) Will take up 50% representation of women in judiciary with collegium: CJI, The Times of India, December 15, https://timesofindia.indiatimes.com/india/cji-ramana-bats-for-50-of-judges-posts-for-women/articleshow/88287037.cms
[29] Tata Trust (2019) India Justice Report 2019, https://www.tatatrusts.org/upload/pdf/overall-report-single.pdf
[30] Agarwal Yash (2020) India spends 0.1% on judiciary as against 2% GDP on Defense, National Herald, October 10, https://www.nationalheraldindia.com/india/india-spends-01-on-the-judiciary-as-against-2-of-the-gdp-on-defence
[31] Justice Yatinder Singh (Retd) (2020) Cultivating Plain Language in Law, The Leaflet, September 1, https://www.theleaflet.in/cultivating-plain-language-in-law/
[32] Nigam Shalu (2021) Domestic Violence Law in India: Myths and Misogyny, Routledge, Delhi.
[33] The Wire (2021) Sedition, Farm Laws, Electoral Bonds: Over 200 Eminent citizens urge CJI to Hear Key Matters, November 15, https://thewire.in/law/sedition-farm-laws-electoral-bonds-over-200-eminent-citizens-urge-cji-to-hear-key-matters
[34] Nigam Shalu (2008) Legal Literacy: An Instrument for Reform, Social Action, 58(2) 216-226
