Supreme Court’s views on ‘Indianisation’ of the legal system have varied
- At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.
- Chief Justice of India N.V. Ramana had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour''.
- The need to adapt to the practical realities of our society and localise our justice delivery systems. For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court. Such cases should be avoided.
Need for ‘Indianisation’ of the Legal System
Pendency of Cases:
- Between 2010 and 2020, pendency across all courts grew by 2.8% annually. As of September 15, 2021, over 4.5 crore cases were pending across all courts in India. Of these, 87.6% cases were pending in subordinate courts and 12.3% in High Courts.
- This implies that, if no new cases were to be filed, the time taken by courts to dispose of all the pending cases at the current disposal rate would be 1.3 years for the Supreme Court and three years each for High Courts and subordinate courts.
Vacancies in the Courts:
- There is a shortage of judges to decide cases. As on September 1, 2021, the Supreme Court had one vacancy out of the sanctioned strength of 34 judges. In the High Courts, 42% of the total sanctioned posts for judges were vacant (465 out of 1,098). Five High Courts (Telangana, Patna, Rajasthan, Odisha, and Delhi) had more than 50% vacancies. High Courts of Meghalaya and Manipur had no vacancies.
- Judicial thinking can not be allowed to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
- Supreme Court judgments themselves show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence.
- The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution. The public interest litigation mechanism is truly Indian.
Better connected with indian roots:
- The highest judiciary has far from indulged in a “continued neglect” of the legal greats of ancient India. Several judgments since the 1980s refer to the works of Manu and Kautilya.
- In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.
Complex Judgements - moving away from ancient texts:
- In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
- In the Sabarimala case, the court points to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
- Practices which legitimise menstrual taboos, due to notions of ‘purity and pollution’, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere.
Representation of Women in Higher Judiciary is very Low:
- The first-ever woman judge (Justice Fatheema Beevi) in the Supreme Court (SC) was appointed in 1989, 39 years after the apex court came into existence. Since then, only 10 women have become judges in the apex court.
- In High Courts, women judges account for only 11%.
- Malimath Committee Report (2000) on reforms in the Criminal Justice System of India (CJS):
- The Committee suggested that a Schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.