NATIONAL LAW UNIVERSITY, DELHI

BA, LLB (Hons.)

Semester - I

HISTORY OF LEGAL AND CONSTITUTIONAL

DEVELOPMENT IN INDIA

Course Outline and Reading Material

Compiled by:

Mr. Risham Garg

Mr. Syed Iqbal Ahmed

July, 2010

(For private circulation only)

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 BA, LLB (Hons.) Ist Year – Semester I

HISTORY OF LEGAL AND CONSTITUTIONAL DEVELOPMENT IN

INDIA

Course Objectives:
The subject of Legal and Constitutional History comprises the
evolution, growth and development of the legal system and institutions of
a country and it sets forth the historical process whereby a legal system
has come to be what it is over time. To comprehend, understand and
appreciate the present legal system, it is necessary, therefore, to acquire
a background knowledge of the course of its growth and development. If
we were to confine our attention exclusively to the law as it is, our
understanding of it is bound to be deficient as it is not possible to
appreciate its present ordering without some familiarity with its past. The
historical perspective throws light on the anomalies that exist in the
system.
Legal history is not only interesting but of practical utility, as it is
only by examining the origins, course of development and reasons of
particular developments, that the scope and rationale of a particular rule
can be found or understood.
The subject deals with the development of legal institutions and
traces legal history of India starting from the year 1600. India, however,
has a known history of over 5000 years. A study of the Indian Legal
History should comprise the historical process of development of legal
institutions in the Ancient and the Medieval periods also. However,
suitable references will be made to the pre-British developments (Ancient
and Medieval) as well. After tracing Legal History, an overview of present
modern judicial system as it stands today and as built over the period of
time shall be discussed. Appropriate references to English Legal System
are also necessary.
A separate part will deal with constitutional history and
development. Post Constitutional developments, important amendments,
landmark judgments shall be discussed.

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Essential Readings :
1. V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional
History (8th ed., 2005)
2. M.P. Jain, Outlines of Indian Legal & Constitutional History (6th ed.,
2006)
3. M.P. Singh, Outlines of Indian Legal & Constitutional History (8th
ed., 2006)
4. M. Rama Jois, Legal and Constitutional History of India (1st ed.,
1984)
5. M. Rama Jois, Seeds of Modern Public Law in Ancient Indian
Jurisprudence
6. Durga Das Basu, Introduction to the Constitution of India
7. Arvind P. Datar, Commentary on the Constitution of India (2007)
8. Glanville Williams, Learning the Law (11th ed., 2003)
9. Joseph Minattur (ed.), Indian Legal System (2nd ed.)

Reference and Basic Readings :

1. M. Gwyer & A Appadorai, Speeches and Documents on the
Indian Constitution (1957)
2. A. B. Keith, A Constitutional History of India (1937)
3. P. V. Kane, History of Dharmashastra
4. Upendra Baxi, Towards Sociology of Indian Law (1985)
5. I. C. Fawcett, The First Century of British Justice in India (1930)
6. B.N. Pandey, The Introduction of English Law into India (1967)
7. M.B. Ahmad, The Administration of Justice in Medieval India
8. M.V. Pylee, Constitutional History of India (1967)
9. Catherine Elliott & Frances Quinn, English Legal System (1st
ed., 1996)
10. W.A.J. .Archbald, Outlines of Indian Constitutional History
(1926)

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 Course Outline
PART I: LEGAL HISTORY OF ANCIENT & MEDIEVAL INDIA
Unit 1: What is “Legal History”?
(a) How does Legal History fit into Legal Education? ; (b) The “seamless web” of law
and history; (c) The Nature of Indian Legal System
Unit 2: Judicial System in Ancient India
(a) Ancient Hindu Law and Sources, Dharma; (b) Legal System in Ancient India; (c)
Relevance of Hindu law in the modern legal system
Unit 3: Judicial System in Medieval India
(a) Origin and Schools of Muslim Law; (b) Criminal law, Court System and Judicial
officers in Muslim Law; (c) Defects in criminal law and judicial administration
Readings :
1. “Introduction” in Joseph Minattur (ed.), Indian Legal System (2nd ed.). 6
2. NRM Menon, “Our Legal System”, Legal Aid Newsletter (Nov., 1982). 12
3. The Indian Judicial System: A Historical Survey: By Mr. Justice S. S. Dhavan; High
Court, Allahabad 20
4. “Ancient Indian Jurisprudence VIS-À-VIS Modern Jurisprudence”: By: Hon’ble Mr.
Justice Markandey Katju, Judge, Supreme Court of India 41
5. “Common Law and Equity” in Glanville Williams, Learning the Law 54
6. “Nature of the Indian Legal System” in Joseph Minattur (ed.), Indian Legal System
(2nd ed.) V.S Deshpande 61
7. Hon. Justice Michael Kirby AC CMG, “Living with Legal History in the Courts”,
[2003] AJLH 3 82

PART II: LEGAL HISTORY OF INDIA DURING THE COLONIAL PERIOD

Unit 1: English and Colonial Foundations:
(a) Administration of Justice at Madras, Bombay and Calcutta; (b) The Mayor's Courts
(1726,1753); (c) The Adalat System: Warren Hastings, Cornwallis; (e) The Regulating Act,
1773; (d) The Supreme Courts at Calcutta, Madras and Bombay; Cases: Raja Nand Kumar,
Patna , Cossijurah; The Act of Settlement, 1781

Unit 2: Law and Codification

(a) Law and the Regulations; (b) The Charter Act, 1833, 1853; (c) Law Commission of India
Unit 3: Establishment of the High Courts, the Privy Council and the Federal Court of
India
(a) Jurisdiction of the High Courts (Original & Appellate); Writ Jurisdiction of the High
Courts; (b) Appeals from India to the Privy Council; The Federal Court of India; (c) The
Supreme Court of India
Readings :
1. “History of Courts and Legislatures” in Joseph Minattur (ed.), Indian Legal System
(2nd ed.); Raj Kumari Agarwala 92
PART III: CONSTITUTIONAL HISTORY OF INDIA

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Unit 1: COLONIAL PERIOD: (a) East India Company (1600-1858); (b) British Crown
(1858-1947), The Indian Councils Act, 1861; The Indian Councils Act, 1892, Minto-Morley
reforms; Council of States.
Unit 2: Development of Parliamentary System in India (a) The Government of India Act,
1919; (b) The Government of India Act, 1935; (c) Representative Government
Unit 3: Constitutional Developments post-1935 (1937-1947): (a) The Indian Independence
Act, 1947; (b) Making of the Constitution: Constituent Assembly Debates; (c) The
Constitution of India, 1950 - Salient Features

PART IV: THE CHALLENGES OF THE TWENTIETH CENTURY

Unit 1: Constitutional Development post-1950: Amendments, Landmark Judgements.
Unit 2: Historical Interpretation: Legal Pluralism, Federalism.
Unit 3: Modern Judicial System
(a) The Supreme Court of India; The High Courts; Subordinate Courts: Civil, Criminal;
(b) Regulatory Bodies / Tribunals / Fora / Commissions etc.
(c) Lok Adalats, Nyaya Panchayats, Alternative Disputes Resolution (ADRs) system
Readings :
1. Legal Service/Aid and Lok Adalat: R. Swaroop; 119
2. Punam S. Khanna, “The Indian Judicial System” in K. Sankaran & U.K. Singh (ed.),
Towards Legal Literacy 139
4. “The hierarchy of Courts” in Catherine Elliott & Frances Quinn, English Legal System (1st
ed., 1996) 157

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 THE INDIAN LEGAL SYSTEM
Joseph Minattur
INTRODUCTION
To delve among the laws of India is like bathing in the holy waters of Triveni. It
leaves one refreshed and delighted; refreshed from the pleasant contact with almost all the
legal systems of the contemporary world, and delighted at the hopeful realisation that here in
the Indian legal system lie the seeds of a unified, eclectic legal order which may soon grow
into maturity and spread its branches, like a banyan tree, all over south and southeast Asia.
Three main streams join together to form the Indian legal system. That of the common
law is perhaps the most dominant among them. Then there is the stream of laws springing
from religion. The third is that of the civil ('romanist') law which energizes the system with
unruffled ethical verve and accords comeliness to its contours. Trickles of customary laws
cherished by tribal societies and other ethnic communities also flow into the main stream.
Like the Sarasvati near Prayag, the element of the civil law is not easily perceptible, though it
permeates the entire structure. So a word of explanation is perhaps warranted.
The very idea to a code appears to have been derived from the codes of continental
Europe. When in 1788 a codification of Hindu law on contracts and succession was proposed
by Sir William Jones to Lord Cornwallis, it was conceived to be on the model of the
“inestimable Pandects of Justinian”. On 18 May 1783 “A Regulation for forming into a
Regular Code, all Regulations that may be enacted for the Internal Government of the British
territories in Bengal” was passed by the Governor-General and Council, some eight years
earlier, in 1775 Warren Hastings had A Code of Gentoo Laws or Ordinations of the pundits
prepared and translated by Halhed a Judge of the Supreme Court at Calcutta. The same year
Bentham offered to act “as a sort of Indian Solon” and thought of “constructing an Indian
Constitutional code”. James Mill, one of his disciples at India House thought that his Draught
of a New Plan for the France was applicable to India. Speaking on the Charter Bill of 1833
Macaulay said:
I believe that no country ever stood so much in need of a code of laws as India, and I
believe also that never was a country in which the want might so easily be supplied.
Section 53 of the Charter Act, 1853 declared that it was expedient:
that such laws as may be applicable in common to all classes of the inhabitants... due
regard being had to the rights, feelings and peculiar usages of the people, should be enacted:
and that all laws and customs having the force of law should be ascertained and consolidated
and, as occasion may require, amended.

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 The first Law Commission immediately after its appointment in 1833 with Macaulay
as its President took up the task of codification. Under Macaulay‟s personal direction it
prepared its first draft of the Indian Penal Code and submitted it to the Governor-General in
Council on 14 October 1837. When there were complaints that the progress of the
Commission's work was unsatisfactory, Macaulay compared its progress with that of the
authors of the French codes. He pointed out that though the French Criminal Code was begun
in March 1801, the Code of Criminal Procedure was not completed till 1810. It is also
interesting to find half of the last century were on the same branches of law as were the
French codes enacted earlier. Neither in India nor in France was enacted a code on the law of
civil wrongs. It is true that there was no comprehensive enactment on torts in England, but
then there were no comprehensive enactments in England on any of the subjects covered by
the Indian codes.
It is not only in cherishing the idea of codification that the British Indian authorities
executive as well as legislative bodies-appear to have been indebted to continental codes.
As early as 1686 in a letter sent to Bombay the directors of the East India Company
had expressed the view that:
you are to govern our people there, being subject to us under His Majesty by the law
martial and the civil law, which is only proper to India.
The first Law Commission which drafted the Indian penal Code acknowledged its
indebtedness to the French Penal code. In a letter of 2 May 1837 addressed to the Governor-
General the Commission stated that it derived much valuable assistance from the French code
and from the decisions of the French courts of justice on questions touching the construction
of that Code.
It “derived assistance still more valuable from the code of Louisiana prepared by the
late Mr. Livingston”.
The second Law Commission which sat in London from 1853 to 1856 expressed its
view that:
what India wants is a body of substantive civil law, in preparing which the law of
England should be used as a basis.
It, however, emphasised that such a body of law ought to be prepared with a constant
regard to the conditions and institutions of India, and the character, religious and usages of
the population. It also stated that in the social condition existing in India it was necessary to
allow certain general classes of persons to have special laws, recognised and enforced by our
courts of justice, with respect to certain kinds of transaction among themselves.

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 The Commission gave final shape to Macaulay's Penal Code; it also prepared drafts of
the Code of Civil Procedure and the Code of Criminal Procedure incorporating into them
materials left by the first Law Commission. The Legislative Council adopted the Code of
Civil Procedure in 1859, the Penal Code in 1860 and the Code of Criminal Procedure in
1861.
The third law Commission, appointed in 1861, was enjoined to prepare for India a
body of substantive law, in preparing which the law of England should be used as a basis.
The fourth law Commission expressed a similar view when it recommended in 1879 that
English law should be made the basis in a great measure of our future Codes, but its materials
should be recast rather than adopted without modification. It, however, added that in
recasting those materials due regard should be had to Native habits and modes of thought.
The influence of Scots and their law on the framing and adoption of the early British
India codes and other enactments deserves to be mentioned. For a number of Scots in the
19th century their prospects were not only along the highway to London, but from there
across the high seas to Indian ports. Macaulay himself was of Scottish descent. Even when
Scots were members of the English Bar, they were imbued with concepts derived from the
civil law system. In the same way a they would prefer to preserve Scots law unsullied by
English notions of Legal rule, they were inclined to keep Indian law unsullied by intrusions
and erosions to English rules of law and tended to give due regard to native habits and modes
of thought.
We shall refer to few instances where the influence of the civil law is clearly
discernible. Section 11 of the Indian Evidence Act adopted in 1872 could not have been
enacted in a fit of absent-mindedness.
The section which lays down guidelines to determine relevance in the admissibility of
evidence is a clear, and presumably a deliberate, departure from the English rule and brings
the Indian law in this respect very relevant and fair. Another provision which is of interest in
this regard is section 165 of the Act. Commenting on it, Stephen has said:
Section 165 is intended to arm the judge with the most extensive power possible for
the purpose of getting at the truth. The effect of this section is that in order to get to the
bottom of the matter before it the court will be able to look at and enquire into every fact
whatever.
The Indian judge appears to be invested with ample powers under the Act to get at the
truth and form his own conviction at time.

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 It is not unfamiliar learning that the framers of the Indian Contract Act adopted
several provisions of the Draft New York Civil Code. The Contract Act which does not
purport to be a complete code only defines and amends certain parts of the law of contract, so
that a rule of the Hindu law of contract like Damdupat is not abrogated. The rule stipulates
that interest exceeding the amount of principal cannot be recovered at any time. It is still in
force in some parts of India. The reason for not interfering with a rule like this must have
been the sense of fairness cherished by the framers of the Act, though no such rule existed in
English law.
In the law of contract, consideration plays a significant role in India as in England.
But the words of section 25 of the Indian Contract Act which accords validity to a registered
agreement, even though without consideration, appear to reflect the concept of cause in
French law.
In this brief introduction it is not intended to indicate all departures from English law
in the Indian statutes. It may, however, be emphasised that when such departures were made,
the legislators were generally induced to do so on consideration of what they thought suited
Indian conditions or on considerations of equity.
It is generally assumed that India is a common law country. This assumption may
have been justified to a certain extent if applied to British India. It is true that many of the
concepts and most of the judicial techniques are of common law origin. But there is more
than a sprinkling of other concepts and techniques, which cannot be overlooked. Indian codes
or judicial procedure owe a great deal to procedure in England. But with the introduction of
nyaya panchayats (village tribunals) which are indigenous in origin the English procedure has
been virtually replaced at the grass root level. The functioning of nyaya panchyats may not be
as widespread as is desired: the fact however remains that at present there is a less formal
procedure than the one followed until recent years. There is also general dissatisfaction, if not
hostility to the complex, protracted procedure derived from the common law system. With
the reign of dharma which may be equated with equity while it comprises the concept of law
unopposed to justice, there was no need in India to think of a separate branch of law known
as equity detached from common law.
We have already adverted to certain departures from English law even when rules of
English law were believed to have been codified for the benefit of the Indian people. Neither
the expression „justice and right‟ in the Charter of 1726 nor the phrase „equity and good
conscience‟ or „justice, equity and good conscience‟ in several regulations and Acts could
have meant principles of English law. The Judicial Committee of the Privy Council was

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careful in its use of words when it pointed out that equity and good conscience had been
"generally interpreted to mean rules of English law if found applicable to Indian society and
circumstances". It has been observed that from 1880 or there about to the present day "the
formula has meant consultation of various systems of law according to the context”. At
present the Supreme Court of India is inclined to think that the phrase has given a connotation
consonant with Indian conditions.
In the early nineteen sixties a number of territories where the civil law prevailed
became parts of the Indian Union. In the Union territory of Goa, Daman and Diu, Portuguese
civil law was in force, even after the extension of several Indian enactments to the territory, it
is generally the provisions of the Portuguese Civil Code which apply to the people of this
territory in matters of personal law. In the former French settlements of Pondicherry.
Karaikal, Mahe and Yanam which, when ceded, were formed into the Union territory now
known as Pondichery, there are Indian citizens who are governed in matters of personal law
by the provisions of the French civil code as they existed at the time of the cession. There are
also other renoncants who are French citizens living in Pondicherry to whom provisions of
the French Civil Code relative to personal law will apply with all subsequent amendments. In
these circumstances, the element of the civil law in the fabric of Indian law cannot be brushed
aside as negligible. And this element affects domestic relations which are on negligible part
of a citizen's life. The customary laws of various tribal communities and other ethnic groups
also form part of the law administered in India. To cite one instance: matriliny among the
Mappila Muslims of Kerala, though not favoured by the tenets of Islam, is permitted to play a
decisive role in the rules of succession applicable to them.
In the light of the presence and prevalence of French and Portuguese laws, customary
law of various ethnic groups and laws based on religion of the several communities, the
introduction of indigenous judicial procedures in village tribunals and several other factors,
one cannot possibly close one's eyes and regard the Indian legal system as belonging to the
common law family. It would be more justified to regard it as a mixed system. If Indonesian
law with its admixture of customary laws based on religion could be regarded as a mixed
system there is no reason why Indian law should not be so regarded. Though the provisions
of the French and the Portuguese civil codes relative to domestic relations are in operation in
certain regions only, laws grounded in religion or custom are followed all over the country.
The mosaic of Indian law may have a large number of common law pieces; but marble
quarried from France and Portugal, gold leaves brought from Arabia and clusters of Precious
stones gleaned form Indian fields do deserve to be discarded.

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 When India adopts a civil code, under the directive in the Constitution it is likely to be
eclectic in character, it may have in it a harmonious admixture of various laws based on
religion and customary laws, as well as provisions derived from western codes and the
English common law. Owing to its eclectic character and especially because it would attempt
to harmonise provisions of personal laws derived from religion prevalent in the region, the
civil code may be found worthy of emulation in south and southeast Asia. It may thus pave
the way for unification of laws, though perhaps limited geographically in extent. If in ancient
days, Indian culture was permitted, without any hitch or demur, to permeate social and
political institutions and life in general in this region, there is no reason why Indian legal
culture cannot play a similar role in the near future as well. The Indian Prime Minister
recently expressed his hope that during the next nine years, India would achieve significant
progress in every field and would provide guidance and inspiration to other countries. He also
stressed that India's influence had been increasing in Southeast Asia and West Asia. Even
when one is not sure whether the mention of nine years has any special significance, one can
hopefully assume that if an Indian civil code is adopted soon, it may tend to guide and inspire
legislators in the neighbouring states. What the Napoleonic code has done for continental
Europe, the Americas, and parts of Asia and Africa, a well-framed Indian civil code may
easily do for south and Southeast Asia.

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 OUR LEGAL SYSTEM
N.R. Madhava Menon

The legal system of a country is part of its social system and reflects the social,
political, economic and cultural characteristics of that society. It is, therefore, difficult to
understand the legal system outside the socio-cultural milieu in which it operates. It is true in
the case of India also even though the legal system we now have is largely the gift of the
British rulers. There is a view that the system is still alien to the majority of Indians whose
legal culture is more indigenous and whose contact with the formal legal system (the
imported British model) is marginal if not altogether non-existent. The language, technicality
and procedure of the inherited legal system are indeed factors which limit access to justice for
the illiterate, impoverished masses of our country. Nevertheless, the rights and benefits
conferred by the laws and the Constitution offer the opportunity for those very people to
enjoy the fruits of a welfare democracy which the people of India have given unto themselves
on the 26th January 1950. It is in this context familiarity with law and its processes becomes
essential to every Indian, rich or poor, man or woman, young or old.
Components of a Legal System
A legal system consists of certain basic principles and values (largely outlined by the
Constitution), a set of operational norms including rights and duties of citizens spelt out in
the laws -Central, State and local, institutional structures for enforcement of the laws and a
cadre of legal personnel endowed with the responsibility of administering the system.
The Constitution: The Fundamental Law of the Land
The Constitution of a country is variously described depending upon the nature of the
policy and the aspirations of the people in a given society. It is generally a written document
and assumes the character of a federal (several independent units joined together) or unitary
form of government. India is declared to be a Socialist, Secular, Democratic Republic. It is
said to have a quasi-federal structure. The Constitution of India represents the collective will
of 700 million Indians and, as such, the reservoir of enormous power. It describes the
methods by which this power conferred on the State is to be exercised for the benefit of the
people. In other words, it is a political document which distributes State power amongst
different organs (Central and State Governments, Legislative, Executive and Judicial wings
of each Government) and regulates its exercise in its incidence on the people. The form of
government is democratic and republican and the method is parliamentary through adult
franchise.

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 The goals are spelt out in Preamble itself which seeks to secure to all citizens:
“Justice, social, economic and political; Liberty of thought, expression, faith and
worship; Equality of status and of opportunity, and to promote among them all.”
Fraternity assuring dignity of the individual and the “unity and integrity of Nation”.

To achieve this goal of dignity of the individual with justice, liberty and equality the
Constitution guarantees certain Fundamental Rights and provides for its enforcement through
the High Courts and the Supreme Court. These basic Human Rights include:
(a) Equality before law,
(b) Equality of opportunity in matters of public employment.
(c) Prohibition of discrimination on grounds of religion, sex etc.
(d) Protection of life and personal liberty.
(e) Protection of right to freedom of speech, of assembly, of association, of movement and
of profession or occupation.
(f) Prohibition of forced labour,
(g) Right to freedom of religion,
(h) Protection of interest of minorities, and
(i) Right to constitutional remedies for enforcement of the above rights
Further, towards achieving the goals set out in the Preamble, the Constitution gives
certain Directives to State to follow in its policies and programmes. Principles of State Policy
have been recognized to be as sacrosanct as Fundamental Rights. In other words, they
together constitute a reference for State action in every sphere.
The Constitution envisages a unique place for the judiciary. Apart from overseeing
the exercise of State power by the Executive and the Legislatures of the State and the Central
Governments, the Supreme Court, and the High Courts are charged with the responsibility of
effectively protecting citizens' rights through its writ jurisdiction. This offers a cheap and
expeditious remedy to the citizen to enforce the guaranteed rights. The Supreme Court
liberalized the rules so as to enable poor and illiterate citizens to have easy access to courts
for enforcing their basic rights.
The Rule of Law is supreme and the independence of judiciary is reality in our
country. This forms the bulwork of democracy and compels every one to abide by the law in
his own interest. Constitutional government principles involved in it ought to be understood
and subscribed to by every Indian if we are to succeed in our declared goals.
Laws, Civil and Criminal

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 The laws of the country are too numerous, varied and complex; they are bound to be
so because law is as large as life itself which is increasingly becoming complex in, every
sphere. In a Welfare State like ours, laws are at the more so because they are expected to
regulate a variety of social and economic activities so as to subserve the common good.
Inspired by the Constitution, Parliament, State legislatures and local councils make and
unmake the laws day in and day out as the occasion demands. Courts interpret them in
specific fact situations and, in the process, extend the scope and application of the laws. The
common man may get lost in the maze of legislations coming from all sides and contribute to
its complexity by creating his own laws through contracts and agreements with others he has
to deal with.
On the basis of the remedies sought and the procedure followed, all laws can be
grouped into two categories, namely, Civil Laws and Criminal Laws. Broadly speaking,
criminal law is concerned with wrongs against the community as a whole, while civil law is
related to the rights duties and obligations of individual members of the community between
themselves.
Civil Law includes a number of aspects which may be grouped under six or seven
major headings such as family law, the law of property, the law of tort, the law of contract,
the law relating to commerce and business, labour law, law of taxation etc. Family law,
which in India has its source both on statute and religion, comprises of the laws governing
marriage, divorce, maintenance, custody of children, adoption inheritance and succession.
Though the Constitution envisages a Uniform Civil Code, each religious group at present
follows largely its own norms in matrimonial and family relations. The law of property
includes rights of ownership, transfer, mortgages, trusts, intestacy and similar matters. The
law of contracts, is concerned with the enforcement of obligations arising from agreements
and promises. This includes transactions such as sale of goods, loans of money, partnerships,
insurance, guarantees, negotiable instruments, agency and the like. The law of torts deals
with propriety of actions and infraction of duties. Injuries to person or property caused by
failure to take reasonable care and caution leads to actionable wrongs under tort, which
usually compensates the victim of such injuries. Laws of commerce and business, which
includes contract law, relate to economic operations of individuals, partnerships and
companies and governmental regulation of them. Even law of taxation forms part of
commercial laws. Labour law deals with the relationship between employer and employees in
the production and distribution of wealth.

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 Criminal law is concerned with public wrongs or wrongs against the order and well
being of the society in general. The persons guilty of such wrongs are prosecuted and
punished by the State. These wrongs are specific and are defined in the Penal Code and a few
other special and local laws. One important aspect in this regard is that criminal laws insist
(apart from a few exceptional offences) on a particular intent or state of mind as a necessary
ingredient of a criminal offence. It also recognizes degrees of criminality and gradations of
crime. Ignorance of law is never taken as an excuse. Certain situations where guilty intention
could not have been entertained such as infancy, insanity mistake of fact etc., they are
recognized as defences to criminal responsibility. Offences are classified on the basis of the
objective or otherwise. Thus there are crimes against the human body, property, reputation of
the individual, against the State or against public rights.
On a procedural basis they are classified as cognizable and non-cognizable
(cognizable are those in which the police can investigate or arrest persons without judicial
warrant), bailable and non-bailable, compoundable or otherwise.
Procedural Laws, Civil and Criminal
Most proceedings in the Supreme Court and the High Courts are governed by Rules of
Procedure made by the Courts themselves under powers given by statute. The Civil and
Criminal Procedure Codes and the Evidence Act do apply to judicial proceedings in these
courts as well.
The writ procedure under Articles 32 and 226 is unique to these courts and is intended
for the quick enforcement of Fundamental Rights whenever they are threatened by the State
or its agencies. In such situations citizens can approach these courts even through a letter sent
by post as the Supreme Court has declared that procedure should not be allowed to come in
the way of dispensation of justice.
For the enforcement of civil rights and obligations a suit before a civil court is usually
instituted. The procedures for trial and appeals including execution of decrees and orders are
laid down in the Code of Civil Procedure. Valuation of suits for purposes of jurisdiction is
made according to the Suits Valuation Act. The amount of court fees to be paid on plaints and
appeals is determined by the Court Fees Act. The Limitation Act prescribes the periods of
limitation with in which suits can be filed. The Evidence Act regulates the relevancy,
admissibility and probative value of evidence led in courts, civil and criminal.
The trial is in the nature of adversary proceedings where two parties oppose each
other in a suit or action between parties. The procedure commences with „pleadings‟, which
set out the precise question in dispute or the cause of action. The opposite party (the

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defendant) may file a written statement to admit or deny the allegations in the plaint. The
pleadings may be supplemented by the parties by making admissions of fact, answers and
interrogatories, oral statements before the court and by admissions and denials of documents
filed by them. The hearing of a suit commences with the serving of a copy of the plaint to the
defendant. A party can appear himself in court for the hearing or make appearance through an
agent or a pleader. According to the Advocates Act right to practise law before courts is
given to Advocates only. In the proceedings, parties have to summon their witnesses for
deposing in court. The trial involves recording of evidence of witnesses on a day-to-day basis
at the conclusion of which judgment is to be pronounced in open court. Because civil
proceedings are private matters, they can at any time be abandoned or compromised and, in
fact, in a number of cases they are settled before trial. Judgments are enforceable through the
authority of the court. Refusal to obey a judgment may lead to penal consequences, many
decrees are open to appeal in higher courts within the specified period.
Criminal proceedings are governed by the provisions of the Code of Criminal
Procedure, the purpose of which is to determine whether the accused is guilty of the offence
charged and, if so, to decide the punishment to be awarded therefore. It is designed to give
every accused a 'fair trial' consistent with the constitutional commitment to individual liberty
and freedom A criminal proceeding involves four major stages, namely, investigation,
prosecution, trial and disposition. Crimes being wrongs against society, the State undertakes
the prosecution on behalf of the victim. The police on receiving information of the
commission of an offence proceeds with the investigation. They are authorised to interrogate
people, arrest the suspects (with warrant from the Magistrate in non-cognizable cases), search
places for recovery of relevant materials, seize property connected with the crime and prepare
a report on their findings for necessary action by the prosecuting authorities. Whenever
arrests are made they are obliged to produce the arrested person before the nearest Magistrate
within 24 hours. They are not to use 'third degree methods' in interrogation and confession
given to police is not admissible as evidence in court. In all bailable cases they are bound to
release the person on bail. The arrested person has right to seek the aid of a lawyer of his
choice and he cannot be compelled to give evidence against himself.
Under our law every accused is presumed innocent and the prosecution (the State) has
to prove the guilt beyond a reasonable doubt. If there is any doubt in the evidence or the
prosecution, the benefit of doubt is given to the accused and he is acquitted. The defendant
has the right to cross-examine every prosecution witness while he cannot himself be
questioned unless he consents to be sworn as a witness in his own defence. In the case of

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indigent persons there is provision for legal aid at the State expense. If at the end of trial, the
Judge finds him guilty, he has a right to be heard on the determination of sentence. The
emphasis in modern criminal justice being reformation and rehabilitation, there is enough
scope for a deserving convict to get correctional treatment as part of sentence.
Apart form the civil and criminal proceedings prescribed in the respective codes, there
are a variety of adjudicative procedures followed in tribunals, quasi judicial administrative
agencies, arbitration councils, nyaya panchayats etc. where private disputes are processed and
settled through informal procedures. They are found to be cheap, expeditious and less
cumbersome in terms of adjudication.
Legal Aid has now assumed an important place in judicial procedure in country. Right
to counsel by a lawyer of one's choice is a constitutional right every citizen possesses. In the
case of poor person the Criminal Procedure Code provides for the appointment of counsel at
State expense to defend the indigent accused in all major criminal cases. In civil proceedings,
a poor person can declare himself to be a 'pauper' in which case he is exempted from co fees
and a variety of related court expenses. Legal Aid Schemes set up in State also provide such
persons with the services of lawyers to conduct litigation on their behalf.
Courts of Law
Courts are institutions wherein disputes are adjudicated and justice, administered.
They are created by Statutes and enjoy such powers and jurisdiction, which the Statutes
confer. The Constitution itself provides for the Supreme Court and the High Court in each
State at the apex of the judicial system and confers original and appellate jurisdiction on them
primarily to resolve disputes between Union and the State, State and State, State and the
citizen and in limited cases appeals arising out of private disputes involving substantial
questions of law. This higher judiciary is named as the Union Judiciary and appointments to
it are made by the President of the Union on the advice of the Chief Justice. Citizens can
directly approach the High Courts or the Supreme Court to seek redress for the violation of
Fundamental Rights. These courts have a supervisory function over the subordinate courts
(State Judiciary) which are set up by each State according to its requirements under the Civil
Procedure Code, Criminal Procedure Code or other State laws. The High Courts and Supreme
Court enjoy civil and criminal jurisdiction apart from the writ jurisdiction.
The State judiciary under the High Court is organised in a hierarchy on the civil and
criminal sides based on their jurisdiction, territorial or monetary. On the criminal side, the
Criminal Procedure Code provides for the Magistrates Court (First or second Class depending
on the extent of powers for punishment) and above them the Sessions Courts, usually one in

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each District. On the civil side the Civil Procedure Code provides for the Munsiffs' Court
(with limited pecuniary jurisdiction), the Sub-Divisional Court and the District Court each
with varying pecuniary and territorial jurisdiction. There can be Special Courts set up for
specific purposes and also Administrative and Revenue Tribunals to adjudicate upon specific
categories of disputes. Thus there are Motor Vehicles Compensation Tribunals, Sales Tax
Tribunals etc. all of which are judicial bodies adjudicating disputes in the areas assigned to
them. Appeals from these courts and tribunals usually lie to the High Courts and, in
exceptional cases, a second appeal to the Supreme Court.
The Personnel of the Law
Administration of justice requires the co-operation not only of the parties and the
judges but also of officers of court who include the Advocates, the court staff and the para-
legal personnel who assist the lawyers and judges.
Judges
All judicial officers from the Supreme Court Judge to the Munsiff in a small taluka
are independent of both the legislature and the executive. They are free to administer law
without fear or favour and they cannot be interfered with by any one including the top
functionary of the Government. They have the power to punish those who commit contempt
of court or disobey their legitimate orders.
The President, acting on the advice of the Cabinet and the Chief Justice of India,
appoints the Judges of the Supreme Court and the High Court. The Governor of the State
appoints the Judicial Officers of the State similarly on the advice of the State High
Court/Government. Their salaries and service conditions are determined by law and cannot
be changed to their disadvantage. Their removal from service requires a special procedure
and the control of their judicial functions vest on the higher judiciary.
Lawyers and the Bar
Lawyers are the key functionaries assisting the judges in the administration of justice.
They are officers of court and are constituted into an independent profession under an Act of
Parliament. (The Advocates Act,1961). No others may practice before the courts. Without the
expert assistance of lawyers on either side of a dispute, judges will find it difficult to find the
truth on disputed facts in issue and interpret the law applicable to varied situations. That is
why the legal profession is often referred to as a noble and a learned profession. There are at
present approximately 2,30,000 Advocates practising in the various courts in the country. For
organizational purposes they have formed themselves into bar associations. They are enrolled
into the profession by the Bar Council created by Parliament under the-Advocates Act.

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 The Bar Councils at the State level and the Central level consist of elected members
of the profession who undertake the responsibility of not only admitting new entrants, but
also improving the quality of legal services particularly through the exercise of disciplinary
powers over erring members of the profession. Legal Services to the poor is one of the social
obligation of every lawyer required under the Bar Council rules of professional conduct.
*****

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 The Indian Judicial System: A Historical Survey
By Mr. Justice S. S. Dhavan
High Court, Allahabad
Part A: Judicial System in Ancient India
India has the oldest judiciary in the world. No other judicial system has a more ancient or
exalted pedigree.
But before describing the judicial system of ancient India I must utter a warning. The reader
must reject the colossal misrepresentation of Indian Jurisprudence and the legal system of
ancient India by certain British writers. I shall give a few specimens. Henry Mayne described
the legal system of ancient India "as an apparatus of cruel absurdities". An Anglo-Indian
jurist made the following remark about what he called "the oriental habits of life" of the
Indians before the British turned up in India: "It (British rule in India) is a record of
experiments made by foreign rulers to govern alien races in a strange land, to adapt European
institutions to Oriental habits of life, and to make definite laws supreme amongst peoples
who bad always associated government with arbitrary and uncontrolled authority."1
(italicized by me). Alan gledhill, a retired member of the Indian Civil Service, wrote that
when the British seized power in India, "there was a dearth of legal principles."2
These statements are untrue. It is not for me to guess why they were made. They may be due
to sheer ignorance, or imperialist self-interest, or contempt for Indian culture and civilization
which was a part of the imperialist outlook which dominated British Jurists, historians, and
thinkers in the heyday of imperialism. But the effect of this misrepresentation, which has few
parallels in history, was to create a false picture of the Indian judicial system both in India
and outside.
We must go the original texts to get a true and correct picture of the legal system of ancient
India. The reader will discover from them that Indian jurisprudence was found on the rule of
law; that the King himself was subject to the law; that arbitrary power was unknown to Indian
political theory and jurisprudence and the kind‟s right to govern was subject to the fulfillment
of duties the breach of which resulted in forfeiture of kingship; that the judges were
independent and subject only to the law; that ancient India had the highest standard of any
nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of
the judiciary, and these standards have not been surpassed till today ; that the Indian judiciary
consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top,
each higher Court being invested with the power to review the decision of the Courts below ;
that disputes were decided essentially in accordance with the same principles of natural
justice which govern the judicial process in the modern State today: that the rules of
procedure and evidence were similar to those followed today ; that supernatural modes of
proof like the ordeal were discourage ; that in criminal trials the accused could not be

1 History of the Constitution of the Courts and Legislative Authorities in India, by Cowell (1872), p.3.
2 Alan Gledhill: The Republic of India, p.147.
In fairness I must state that several British Indologists of eminence like E.B. Havell, A.L.Basham, Spellman, and others, do
not share the prejudices of their imperialist predecessors though their approach may be different from ours. The reader is
advised to study The History of Aryans Rule in India by E.B. Havell; The Wonder that was India by A.L. Basham, and
Political Theory of Ancient India by John W. Spellman.

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punished unless his guilt was proved according to law ; that in civil cases the trial consisted
of four stages like any modern trial – plaint, reply, hearing and decree ; that such doctrines as
res judicata (prang nyaya) were familiar to Indian jurisprudence ; that all trials, civil or
criminal, were heard by a bench of several judges and rarely by a judge sitting singly ; that
the decrees of all courts except the King were subject to appeal or review according to fixed
principles ; that the fundamental duty of the Court was to do justice "without favour or fear".
Rule of law in Ancient India
Was there a rule of law in ancient India? Let the texts speak for themselves.
In the Mahabharata, it was laid down " A King who after having sworn that he shall protect
his subjects fails to protect them should be executed like a mad dog."3
"The people should execute a king who does not protect them, but deprives them of their
property and assets and who takes no advice or guidance from any one. Such a king is not a
king but misfortune."4
These provisions indicate that sovereignty was based on an implied social compact and if the
King violated the traditional pact, he forfeited his kingship. Coming to the historical times of
Mauryan Empire, Kautilya describes the duties of a king in the Arth-shastra thus : "In the
happiness of his subjects lies the King‟s happiness; in their welfare his welfare; whatever
pleases him he shall not consider as good, but whether pleases his people he shall consider to
good."5
The Principle enunciated by Kautilya was based on a very ancient tradition which was
already established in the age of the Ramayana. Rama, the King of Ayodhya, was compelled
to banish his queen, whom he loved and in whose chastity he had comlete faith, simply
because his subjects disapproved of his having taken back a wife who had spent a year in the
house of her abductor. The king submitted to the will of people thopugh it broke his heart.
In the Mahabharata it is related that a common fisherman refused to give his daughter in
marriage to the King of Hastinapur unless he accepted the condition that his daughter‟s sons
and not the heirapparent from a former queen would succeed to the throne. The renunciation
of the throne and the vow of life-long celibacy (Bhishma Pratgyan) by Prince Deva Vrata is
one of the most moving episodes in the Mahabharata.6 But its signifiance for jurists is that
even the sovereign was not above the law. The great King of Hastinapur could not compel the
humblest of his subjects to give his daughter in marriage to him without accepting his terms.
It refutes the view that the kings in ancient India were "Oriental despots" who could do what
they liked regardless of the law or the rights of their subjects.
Judiciary in Ancient India
With this introductory warning, I shall endeavour to describe the judicial system of ancient
India. According to the Artha-shastra of Kautilya, who is generally recognised as the Prime
Minister of the first Maurya Emperor (322-298 B.C.), the realm was divided into

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administrative units called Sthaniya, Dronamukha, Khrvatika and Sangrahana (the ancient
equivalents of the modern districts, tehsils and Parganas). Sthaniya was a fortress established
in the center of eight hundred villages, a dronamukha in the midst of 400 villages, a
kharvatika in the midst of 200 villages and a sangrahana in the center of ten villages, Law
courts were established in each sangrahana, and also at the meeting places of districts
(Janapadasandhishu). The Court consisted of three jurists (dhramastha) and three ministers
(amatya).7
This suggests the existence of circuit courts, for it is hardly likely that three ministers were
permanently posted in each district of the realm.
The great jurists, Manu, Yajn-valkya, Katyayana, Brihaspati and others, and in later times
commentators like Vachaspati Misra and others, described in detail the judicial system and
legal procedure which prevailed in India from ancient times till the close of the Middle Ages.
Hierarchy of courts in Ancient India
According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning
with the family Courts and ending with the King. The lowest was the family arbitrator. The
next higher court was that of the judge; the next of the Chief Justice who was called
Praadivivaka, or adhyaksha; and at the top was the King‟s court.8
The jurisdiction of each was determined by the importance of the dispute, the minor disputes
being decided by the lowest court and the most important by the king. The decision of each
higher Court superseded that of the court below.9
According to Vachaspati Misra, "The binding effect of the decisions of these tribunals,
ending with that of the king, is in the ascending order, and each following decision shall
prevail against the preceding one because of the higher degree of learning and knowledge". 10
It is noteworthy that the Indian judiciary today also consists of a hierarchy of courts
organized on a similar principle-the village courts, the Munsif, the Civil Judge, the District
Judge, the High Court, and finally the Supreme Court which takes the place of the King‟s
Court. We are following an ancient tradition without being conscious of it.
The institution of family judges is noteworthy. The unit of society was the joint family which
might consist of four generations. Consequently, the number of the member of a joint family
at any given time could be very large and it was necessary to settle their disputes with
firmness combined with sympathy and tact. It was also desirable that disputes should be
decided in the first instance by an arbitrator within the family. Modern Japan has a somewhat
similar system of family Courts. The significance of the family courts is that the judicial
system had its roots in the social system which explains its success.
The fountain source of justice was the sovereign. In Indian jurisprudence dispensing justice
and awarding punishment was one of the primary attributes of sovereignty.11

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Being the fountain source of justice, in the beginning the king was expected to administer
justice in person, but strictly according to law, and under the guidance of judges learned in
law.12
A very strict code of judicial conduct was prescribed for the king. He was required to decide
cases in open trial and in the court-room, and his dress and demeanour were to be such as not
to overawe the litigants. He was required to take the oath of impartiality, and decide cases
without bias or attachment. Says Katyayana: "The king should enter the court-room modestly
dressed, take his seat facing east, and with an attentive mind hear the suits of his litigants.13
He should act under the guidance of his Chief Justice (Praadvivaka), judges, ministers and the
Brahmana members of his council. A king who dispenses justice in this manner and
according to law resides in heaven".14
These provisions are significant. The king was required to be modestly dressed (vineeta-
vesha) so that the litigants were not intimidated. The code of conduct prescribed for the king
when acting as a judge was very strict and he was required to be free from all "attachment or
prejudice"15 Says Narada: "If a king disposes of law suits (vyavaharan) in accordance with
law and is self-restrained ( in court), in him the seven virtues meet like seven flames in the
fire"16 Narada enjoins that when the king occupies the judgment seat (dharmasanam), he must
be impartial to all beings, having taken the oath of the son of Vivasvan. (The oath of
Vivasvan is the oath of impartiality: the son of Vivasvan is Yama, the god of death, who is
impartial to all living beings).17
The King’s Judges
The judges and counselors guiding the king during the trial of a case were required to be
independent and fearless and prevent him from committing any error or injustice. Says
Katyayana: "If the king wants to inflict upon the litigants (vivadinam) an illegal or
unrighteous decision, it is the duty of the judge (samya) to warn the king and prevent him.”18
"The judge guiding the king must give his opinion which he considers to be according to law,
if the king does not listen, the judge at least has done his duty. 19 When the judge realizes that
the king has deviated from equity and justice, his duty is not to please the king for this is no
occasion for soft speech (vaktavyam tat priyam natra); if the judge fails in his duty, he is
guilty."20
Delegation of Judicial power by the King
As civilization advanced, the king‟s functions became more numerous and he had less and
less time to hear suits in person, and was compelled to delegate more and more of his judicial

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function to professional judges. Katyayana says: "If due to pressure of work, the king cannot
hear suits in person he should appoint as a judge a Brahmin learned in the Vedas."21
The qualifications prescribed for a judge were very high. According to Katyayana; "A judge
should be austere and restrained, impartial in temperament, steadfast, God-fearing, assiduous
in his duties, free from anger, leading a righteous life, and of good family.22
In course of time, a judicial hierarchy was created which relieved the king of much of the
judicial work, but leaving untouched his powers as the highest court of appeal. Under the
Maurya Empire a regular judicial service existed as described above.
Quality of the Judiciary: Integrity
I shall now say a few words about the quality of the Judiciary and the code of conduct
prescribed for judges. The foremost duty of a judge was integrity which included impartiality
and a total absence of bias or attachment. The concept of integrity was given a very wide
meaning and the judicial code of integrity was very strict. Says Brihaspati: "A judge should
decide cases without any consideration of personal gain or any kind of personal bias; and his
decision should be in accordance with the procedure prescribed by the texts. A judge who
performs his judicial duties in this manner achieves the same spiritual merit as a person
performing a Yajna."*23
The strictest precautions were taken to ensure the impartiality of judges. A trial had to be in
open court and judges were forbidden to talk to the parties privately while the suit was
pending because it was recognised that a private hearing may lead to partiality (pakshapat).
Shukra-nitisara says: "Five causes destroy impartiality and lead to judges taking sides in
disputes. There are attachment, greed, fear, enmity, and hearing a party in private."24
Another safeguard of judicial integrity was that suits could not be heard by a single judge,
even if he was the king. Our ancients realized that when two minds confer, there is less
chance of corruption or error, and they provided that the King must sit with his counselors
when deciding cases, and judges must sit in benches of uneven numbers. Shukra-nitisara
enjoined that "Persons entrusted with judicial duties should be learned in the Vedas, wise in
wordly experience and should function in groups of three, five, or seven." 25 Kautilya also
enjoined that suits should be heard by three judges (dharmasthstrayah). Our present judicial
system, created by the British, does not follow this excellent safeguard. Today every suit is
heard by a single Munsif or civil Judge or District Judge for reasons of economy. But the
state in ancient India was more interested in the quality of justice than economy.
Integrity
Every Smriti emphasizes the supreme importance of judicial integrity. Shukra-nitisara says:
"The judges appointed by the king should be well versed in procedure, wise, of good

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character and temperament, soft in speech, impartial to friend or foe, truthful, learned in law,
active (not lazy), free from anger, greed, or desire (for personal gain), and truthful."26
Punishment for corruption
Corruption was regarded as a heinous offence and all the authorities are unanimous in
prescribing the severest punishment on a dishonest judge. Brihaspati says: "A judge should
be banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the
confidence reposed in him by a trusting public."27 A corrupt judge, a false witness, and the
murderer of a Brahmin are in the same class of criminals.28 Vishnu says: "The state should
confiscate the entire property of a judge who is corrupt."29 Judicial misconduct included
conversing with litigants in private during the pendency of a trial. Brihaspati says: "A judge
or chief justice (Praadvivaka) who privately converses with a party before the case has been
decided (anirnite), is to be punished like a corrupt judge."30
Jurors
The most noteworthy feature of the judicial system was the institution of sabhasada or
councilors who acted as assessors or adviser of the King. They were the equivalent of the
modern jury, with one important difference. The jury of today consists of laymen- "twelve
shopkeepers"-whereas the councilors who sat with the Sovereign were to be learned in law.
Yajanvalkya enjoins: "The Sovereign should appoint as assessors of his court persons who
are well versed in the literature of the law, truthful, and by temperament capable of complete
impartiality between friend and foe."31
These assessors or jurors were required to express their opinion without fear, even to the
point of disagreeing with the Sovereign and warning him that his own opinion was contrary
to law and equity. Katyayana says: „The assessors should not look on when they perceive the
Sovereign inclined to decide a dispute in violation of the law; if they keep silent they will go
to hell accompanied by the King."32 The same injunction is repeated in an identical verse in
Shukr-nitisara.33 The Sovereign-or the presiding judge in his absence-was not expected to
overrule the verdict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in
accordance with their advice. Shukr-nitisara says: " The King after observing that the
assessors have given their verdict should award the successful party a decree (Jaya-patra)."34
Their status may be compared to the Judicial Committee of the Privy Council which "humbly
advise" their Sovereign, but their advice is binding. It may also be compared to the peoples‟
assessors under the Soviet judicial system who sit with the professional judge in the Peoples‟
Court but are equal in status to him and can overrule him.
But there was one exception. If in a difficult case the jurors were unable to come to a
conclusion, the Sovereign could decide the matter himself. Shukra-nitisara says, "If they (the

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assessors) are unable to decide a dispute because it raises difficult or doubtful issues
(sandigdha-roopinah), in such a case the Sovereign may decide in the exercise of his
Sovereign privilege.35
Criminal Trials
In criminal trials it appears that the question of innocence or guilt of the accuse was decided
by the judge or the jurors, but the quantum of punishment was left to the King.36 In the trial
scene in Mrichchhakatika, The Little Clay Court, the judge after pronouncing Charudatta
guilty of the murder of Vasantasena, referred the question of punishment to the King with the
remark, "The decision with regard to Charudatta‟s guilt or innocence lies with us and our
decision is binding (Pramanam), but the rest lies with the King."37
Interpretation of the Text of the law
Principles of interpretation were developed to high degree of perfection. Judges were
required to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro
ditena vidhina). This involved interpretation of the written text of the law-a task which
created many problems such as the elucidation of obscure words and phrases in the text,
reconciliation of conflicting provisions in the same law, solution of conflict between the letter
of the law and principles of equity, justice and good conscience, adjustment of custom and
smritis, and so on. This branch of law was highly developed and a number of principles were
enunciated for the guidance of the courts. The most important of them related to the conflict
between the dharm-shastra and the artha-shastra.
Three systems of substantive law were recognized by the court, the dharma-shastra, the arth-
shastra, and custom which was called sadachara or charitra. The first consisted of laws which
derived their ultimate sanction from the smritis and the second of principles of government.
The bordr line between the two often overlapped. But the real distinction between the smritis
and arth-shastra is uniformaly secular, but that of the dharma-shastra not always so. IN fact
so remarkably secular is the arth-shastra in its approach to the problems of government that
this has induced some writers to advance the theory that the artha-shastra (literal meaning: the
science of „artha‟ or pursuit of material welfare), did not evolve from the dharma-shastra but
had an independent origin and developed parallel to it.
Whatever their respective origins, in several matters the arthashastra and the dharma-shastra
are in conflict. How did the law courts resolve this conflict when it arose in particular suits?
The first principle was that of avirodha: the court must try to resolve any apparent conflict
between the two.38 (This is called the principle of harmonious construction today. But if the
conflict could not be resolved, the authority of the dharma-shastra was to be preferred.
Bhavishya purana provides : "whens mriti and artha-shastra are inconsistent, the provision in
the artha-shastra is superseded (by smriti); but if two smritis, or two provision in the same
smriti are in conflict, whichever is in accordance with equity is to be preferred."39 Narada
smriti lays down a similar rule of interpretation according to reason in case of conflict

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36 The State and Government in Ancient India, by A.S. Alkkar, p.249. I am indebted to this work for several valuable ideas.
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between two texts of the smritis.40 But while interpreting the written text of the law, the court
was to bear in mind that its fundamental duty was to do justice and not to follow the letter of
the law. Brihaspati enjoined: " The court should not give its decision by merely following the
letter of the shastra for if the decision is completely devoid of reasoning, the result is injustice
(dharma-hani)."41 Brihastpati further says that the court should decide according to the
customs and usages of the country even if they are in conflict with the letter of the law; 42 and
he gives several remarkable illustrations which incidentally throw a flood of light on
contemporary social conditions.
He points out that the maternal uncle‟s daughter is accepted in marriage by brahmanas of the
south; in Madhya desha (Central India), brahmanas become hired labourers and craftmen and
eat cow‟s flesh; eastern brahmanas eat fish and their women are addicted to drinking and can
be touched by men even when in their monthly courses. On account of the acts specified
these communities, in their respective countries, should not be liable to undergo penance r
incur judicial punishment.43
Changing customs: Changing laws
In view of the vital part played by custom (achara, sadachara, charitra ) in society, the State
was required to maintain an authenticated record of the customs observed in the various parts
of the country. Katyayana enjoins: "Whatever custom is proved to be followed in any
particular region, it should be duly recorded as established (dharya) in a record stamped with
the seal of the Sovereign."44 But even an established custom could be formally
"disestablished" if in course of time it became inequitable. In fact, it was the duty of the
Sovereign to remove from time to time the dead or rotten branches of custom. Katyanana
enjoined: "When the Soverign is satisfied that a particular custom is contrary to equity
(nyayatah) in the same way-that is in the way it was established- it should be annulled by a
formal decision of the Sovereign."45 This remarkable provision indicates how highly
developed was the judicial and legal system of ancient India. The state was required to keep
an authenticated record of all valid customs prevailing in the different regions of the realm.
Very often the decision in a suit depended on proof of the existence of a custom. Narada says,
"The basis of a judicial decision (vyavahara) may be: (i) Dharma-shastra, (ii) (previous)
judicial decisions (vyavahara) or custom (charitra) or the decrees of the Soverign. The
authority of these four is in the reverse order, each preceding one being superseded by the
one following it.46 The artha-shastra contains an indentical provision.
Evolutionary concept of law
The significance of these provisions can not be overemphasized. By gearing law to changing
customs Indian jurisprudence gave the concept of law a secular content. Moreover, it
developed the evolutionary concept of law and rejected the concept of an absolute, eternal,

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never-chaning law. Both Manu and Parashara say: "The laws of kritayuga are different from
those of treat and dwapara, and the laws of kali yuga are different from those of all the
previous; ages- the laws of each age being according to the distinctive character of each age
(yuga roopanusaratah)."47
Mode of Proof (Law of Evidence)
The law of evidence (the mode of proof) is an index of the quality of a judicial system. In
this respect, the Indian judicial system was in advance of any other system of antiquity.
In ancient societies proof by supernatural devices, such as trial by ordeal, was quite common.
In England it prevailed till the very close of the middle ages. But our judicial system
prohibited resort to supernatural devices, if oral or documentary evidence was available.48
Discovery of truth is real test
The real test of any judicial system is that it should enable the law courts to discover the
truth, and that of ancient India stands high under this test. "In disputes the Court has to
ascertain what is true and what is false from the witnesses," enjoins Gautam.49 All available
evidence indicates that in ancient India bearing false witness was viewed with great
abhorrence.50 All the foreign travelers from Megasthenes in the 3rd century B. C. to Huan
Tsiang in the 7th century A. D. Testified that truthfulness was practiced by Indians in their
wordly relations. "Truth they hold in high esteem", wrote Megasthenes. 51 Fa Hien and Huan
Tsiang (who visited India during the reign of Harsha) recorded similar observations. A virtue
practiced for a thousand year became a tradition.
The procedure and atmosphere of the Courts discouraged falsehood. The oath was
administered by the judge himself, and not by a peon as today. While giving the oath the
judges were required to address the witness extolling truthfulness as a virtue and condemning
perjury as a horrible sin. Brihaspati says, "Judges who are well-versed in the dharmashastra
should address the witness in words praising truth and driving away falsehood (from his
mind)".52 The judges‟ address to the witness did not consist of set words but a moral
exhortation intended to put the fear of God in him. All the texts are unanimous on this
point.53 According to Narada, "The judges should inspire awe in the witness by citing moral
precepts which should uphold the majesty of truth and condemn falsehood". 54 All the smirtis
were unanimous in holding that perjury before a law court was a heinous sin as well as a
serious crime.55 There were other provisions, calculated to reduce the changes of false
evidence being given. Katyayana enjoined, with much common sense that there should be no
delay in examining witnesses- obviously because delay dims the memory and stimulates

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50 A.L. Basham: The Wonder that was India, p.116.
51 Ancient India as described by Magasthenes and Arian, by Mc. Rindle, p.6.
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53 Manu, VIII, 79-87; Narada I, 200-228, Katyayana, 388-390; Yajnaa-II, 273-74.
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55 Brihaspati V, 34; Manu VIII, 80-87; Yajna II, 73-74; Narada I, 220-228; Baudh I, 13,14,19.

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imagination. "The Sovereign should not grant any delay in the deposition of witnesses; for
delay leads to great evil and results in witnesses turning away from the law.”56
Administrative Courts
An important feature of the judicial system of ancient India were the Special Courts of
criminal jurisdiction called the Kantakasodhana Courts. The artha-shastra says, "Three
commissioners (pradeshtarah) or three ministers shall deal with measures to suppress
disturbance to peace (kantakasodhanam kuryuh).57 According to the artha-shastra these courts
took cognizance not only of offences against the States but also violations of the law by
officials in the discharge of their official duties. Thus if traders used false weights or sold
adulterated good, or charged excessive prices, if the labourer in the factory was given less
than a fair wage or did not do its work properly, the Kantakasodhana courts intervened to
punish the culprits. Officers charged with misconduct, persons accused of theft, dacoity and
sex offences had to appear before the same court. These Courts had all the characteristics of
administrative courts. The existence of an Administrative Code is indicated in the Fourth part
of the Artha-shastra.
Administrative Code
The State in ancient India had a public sector of huge dimensions engaged in commerce and
industry. The modern capitalist notion that there should be no industries run by the State
would have appeared idotic to our ancients. Under the Mauryan Empire there was a State
mercantile marine, a state textile industry, a state mining industry, and a state trading
department in charge respectively of a Superintendent-General of Shipping (navadhyaksha).
Textiles (Sootradhyaksha), mining (akaradhyaksha), and commerce. The regulation of each
state industry was under its own rules and all the rules were compiled and classified in the
artha-shastra and may be regarded as an Administrative Code. I shall give a few illustrations.
The artha-shastra provides a complete Administrative Code prescribing rules of maritime and
riparian navigation. It enjoined that the State should have a Superintendent-General of
Navigation whose duties are defined thus: "The Superintendent of ships shall examine the
accounts relating to navigation not only on the oceans and mouths of the rivers, but also on
lakes, natural or artificial, and in the vicinity of Sthaniya and other fortified cities.” 58 The
chapter contains a provision for the ships to have adequate few for ships. There were strict
regulations to ensure the safety of vessels: "For navigation on large rivers which cannot be
forded (atarya) even during winter and summer season, there shall be a service of large boats
(mahanavo), with a captain (shasaka), pilot (niyamaka), a crew to hold the sickle and the
ropes, and to clear the boat of water.”59
The artha-shastra also contains regulations indicating that the state mercantile marine
operated on the high seas and it provided that "passengers arriving in port on the royal ships
shall pay their passage money (yatra-vetanam)."60 The rates were to be fixed by the

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Superintendent-General. Incidentally, the existence of this code proves beyond doubt that the
people of India were a sea-faring people with extensive trade relations with foreign countries.
Similarly, the manufacture of textiles and cotton yarn, which was a huge industry exporting
textiles to foreign countries had a public as well as a private sector. The public sector was
under a Superintendent-General of Textiles (Sootradhyaksha). He had a large organization
under him. The artha-shastra prescribed the duties of the Sootradhyaksha and the other
officials working under him. It enjoins: "The Superintendent-Genral of Weaving shall
employ qualified persons to manufacture treads (sutra), coats (varma), clothes (vastra), and
ropes.”61 One of his duties was to give employment to women in their own homes. Cotton
was distributed among them and spun into tread and either collected by the department or
delivered by the women themselves. But the artha-shastra contains strict regulation against
the taking of liberties with such women or withholding their wages. It prescribed: "If the
official of the Superintendent stares at the face of such woman or tries to engage her in
conversation about matters other than her work (in other words, makes what an American
would call a pass at her) he will be punished as if he is guilty of a first assault. 62 "Delay in
payment of wages shall be likewise punishable.63 Another regulation made it a punishable
offence to show any undue favour to a women worker. It provided; "If an official pays wages
to a woman for no work done, he will be punished.”64
Collection of taxes and import duties
There was a code prescribing rules governing the collection of taxes and import duties. This
development was in charge of the Superintendent General of taxes (Shulkadhyaksh). The
merchants at the customs were liable to declare their merchandise which had to bear a seal
when imported. Penalties were prescribed for making a false declaration. One rule enjoined:
"If the merchandise bears no seal, their duty shall be doubled".65 But in case of counterfeit
seal, the merchant was liable to pay a penalty amounting to eight times the normal duty. 66 If
the seal was torn, the merchant was liable to be detained in a lock-up reserved loiterers.67
The Administrative Code in the 4th Section of the artha-shastra contains detailed regulations
for the control of the other departments of the state. These regulations were not enforced by
the ordinary courts but by Commissioners (Pradeshtarah) who functioned as Kantak
Shodhana courts.
I shall sum up the fundamental principles on which the judicial process in ancient India was
founded: The trial was always in public68 and always by several judges collectively. Cases
were heard in their serial order except in case of urgency.69 Delay in the disposal of cases
was condemned by all authorities and judges who were guilty of such delay were liable to be
punished.70 The Sovereign was not to interfere with the judiciary but on the contrary the latter

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was under a duty to interfere in case of a wrong (judicial) decision by the king.71 The Judges
were to be impartial ; during the pendency of the suit they were forbidden to have any private
talks or relations with the parties. If a judge was guilty of partiality, or harassment, or
deliberately violated the prescribed procedure, he was liable to be punished. Corruption was
the most heinous offence in a judge and a corrupt judge was banished from the realm and
forfeited all his property. The procedure for suits was prescribed by law, and every suit was
initiated by a complaint or plaint filed by the aggrieved party who prayed for the redress of a
legal wrong.72 Citizens were strictly forbidden to instigate or finance or file complaints in
which they were not interested, and champerty was a punishable offence. I cannot do better
than quote the verdict of a very recent English writer: "In some respects the judicial system of
ancient India was theoretically in advance of our own today."73
Part B: Judicial System in Medieval India
After the disintegration of the Harsha empire a veil of obscurity descends on the history of
India which does not lift till the Muslim invasion. The country was divided once more into
small kingdoms. But this did not result in any great change in the judicial system which had
taken roots during the preceding thousands of years. The standards and ideals of justice were
maintained in each kingdom, in spite of political divisions, the unity of civilization was
preserved, and the fundamental principles of law and procedure were applied throughout the
country. This I is indicated by the fact that the great commentaries on law like Mitakshara
and Shukarneeti Sar were written during this period and enjoyed an all-India authority. But
the establishment of the Muslim rule in India opened a new chapter in our judicial history.
The Muslim conquerors brought with them a new religion, a new civilization, and a new
social system. This could not but have a profound effect on the judicial system.
The ideal of justice under Islam was one of the highest in the Middle ages. The Prophet
himself set the standards. He said in the quran, "Justice is the balance of God upon earth in
which things when weighed are not by a particle less or more. And He appointed the balance
that he should not transgress in respect to the balance; wherefore observe a just weight and
diminish not the balance". He is further reported to have said that to God a moment spent in
the dispensation of justice is better than the devotion of the man who keeps fast every day
and says prayer every night for 60 years.74 Thus the administration of justice was regarded by
the Muslim kings as a religious duty.
This high tradition reached its zenith under the first four Caliphs. The first Qadi was
appointed by the Caliph Umar who enunciated the principle that the law was supreme and
that the judge must never be subservient to the ruler. It is rported of him that he had once a
personal law suit against a Jewish subject, and both of them appeared before the Qadi who,
on seeing the Caliph, rose in his seat out of deference. "Umar considered this to be such an
unpardonable weakness on his part that he dimissed him from office."75 The Muslim kings in

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“ When a person who is the victim of a wrong in violation of the Smritis and the custom of the realm files a plaint (or
complaint) before the sovereign, this is the commencement of a law suit (Vyavahara)”.
73 Political Theory of Ancient India: John W. Spellman, Clarendon Press, Oxford, p.128.
74 Fakhr-ud-din Mubarak Shah, Edited by D.Ross, p.12.
75 Abdul Rahim : The Principles of the Muhammedan Jurisprudence, page 21.

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India bought with them these high ideals. It is reported by Badaoni that during the reign of
Sultan Muhammad Tughlaq the Qadi dimissed a libel suit filed by the Kind himself against
Shaikhzada Jami, but no harm was done to him. (This however did not prevent the Sultan
from executing the defendant without a trial).76 Individual Sultans had very high ideals of
justice. According to Barani, Balban regarded justice as the keystone of sovereignty "wherein
lay the strength of the sovereign to wipe out the oppression". 77 But unfortunately the
administration of justice under the Sultans worked fitfully. The reason was that the
outstanding feature of the entire Sultanate period was confusion and chaos. No Sultan felt
secure for a long time. One dynasty was replaced by another within a comparatively short
period, and the manner of replacement was violent. Consequently the quality of justice
depended very much on the personality of the sovereign.
As a modern writer says, "The medieval State in India as elsewhere throughout its existence
had all the disadvantages of an autocracy-everything was temporary, personal, and had no
basic strength. The personal factor in the administration had become so pronounced that a
slight deviation of the head from the path of duty, produced concomitant variations in the
whole „trunk‟. If the King was drunk „his Magistrates were seen drunk in public‟.78 Justice in
not possible without security, and the Sultans of India never felt secure. Consequently, the
democratic ideal of government preached by Islam was obscure in India.79 During the
Sultanate, Islamic standards of Justice did not take root in India as an established tradition,
unlike the judicial traditions of ancient India which had struck deep roots in the course of
several thousand years and could not be uprooted by political divisions.
Under the Moghal Empire the country had an efficient system of government with the result
that the system of justice took shape. The unit of judicial administration was Qazi-an office
which was borrowed from the Caliphate. Every provincial capital had its Qazi and at the
head of the judicial administration was the Supreme Qazi of the empire (Qazi-ul-quzat).
Moreover, every town and every village large enough to be classed as a Qasba had its own
Qazi. In theory, a Qazi had to be "a Muslim scholor of blameless life, thoroughly conversant
with the prescriptions of the sacred law.80
According to the greatest historian of the Mughal Empire, "the main defect of the Department
of Law and Justice was that there was no system, no organization of the law courts in a
regular gradation from the highest to the lowest, nor any proper distribution of courts in
proportion to the area to be served by them. The bulk fo the litigation in the country
(excluding those decided by caste, elders or village Panchayats mostly for the Hindus)
naturally came up before the courts of Qazis or Sadars."81 This view is not accepted by other
writers.82
On the appointment of a Qazi, he was charged by the Imperial Diwan in the following words:

76 Badaoni : Muntakhab-ut-Tawarikh, quoted by M.B.Ahmad in the administration of Justice in the Medieval India, p. 278.
77 Brani : Tarikh Firuz Shahi, p. 77.
78 The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting Briggs,. Rise of the Muhammendan
Power in India, Volume I, p.272.
79 Ibid., p.273.
80 Encyclopaedia of Islam, Vol. II, page 606
81 Mughal Administration, by Sir Jadunath Sarkar, page 108.
82 Administration of Justice in Medieval India : M.B.Ahmad.

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"Be Just, be honest, be impartial. Hold trials in the presence of the parties and at the court-
house and the seat of Government (muhakuma). Do not accept presents from thepeople of the
place where you serve, nor attend entertainments given by anybody and everybody. Write
your decrees, sale-deeds, mortgage bonds and other legal documents very carefully, so that
learned men may not pick holes in them and bring you to shame. Know poverty (faqr) to be
your glory (fakhr)."83 But due to lack of supervision and absence of good tradition, these
noble ideals werenot observed. According to Sircar, "all the Qazis of the Mughal period, with
a few honourable exceptions, were notorious for taking bribes.84 The Emperor was the
fountain source of justice. He held his court of justice every Wednesday and decided a few
cases selected personally by him but he functioned not as an original court but as the court of
highest appeal. There is overwhelming evidence that all the Emperors from Akbar to
Aurangzeb took their judicial function seriously and discharged their duties Jahangir made a
great show of it and his Golden Chain has become famous in history. The weakness of Indo-
Mohammedan Law, according to Jadunath Sircar, was that all its three sources were outside
India.
"No Indian Emperor‟s or Qazi‟s decisions was ever considered authoritative enough to lay
down a legal principle to elucidate any obscurity in the Quran, or syupplement the Quranic
law by following the line of its obvious intention in respect of cases not explicitly provided
for by it. Hence, it became necessary for Indian Qazis to have at their slbow a digest of
Islamic law and precedent compiled from the accepted Arabic writer. . . . . Muslim law
in India was, therefore, incapable of growth and change, except so far as it reflected changes
of juristic thought in Arabia or Egypt."85 After the death of Aurangzeb, the Mughal Empire
collapsed within two generations. The provincial Governors and Faujdars arrogated to
themselves the status of sovereigns and awarded punishment for criminal offences in their
own names. A relic of this usurpation of the Emperors‟ power is the name Faujdari given to
criminal trials even today.
After the conquest of Bengal by the British the process of replacement of the Mughal system
of justice by the British began. But it took a long time. In fact, The Sadre Diwani Adalat
continued to function till it was replaced by the High Courts.
The Mughal judicial system has left its imprint on the present system, and a good part of our
legal terminology is borrowed from it. Our civil courts of first instance and called Munsifs,
the plaintiff and the defendant are termed Muddai and Muddaliya and scores of other legal
terms remind us of the great days of the Mughal Empire.
Part C: The Judicial System Today
I shall now give a very brief description of our judicial system today. Barring the Supreme
Court, India has no federal judiciary like the United States. Each State has its own judiciary,
which administers both Union and State laws. As during the Maurya Empire, each district in
the State has its hierarchy of judicial officers- Munsif, Civil Judge, Civil and Sessions Judge-
with the District Judge as its head. I shall not give a detailed description of the organization

83 Manual of Officers Duties, a Persian Mss. Quoted by Sir Jadunath Sircar, p. 27.
84 Ibid., p. 27.
85 Manual of Officers Duties, a Persian Mss. Quoted by Sir Jadunath Sircar, p. 115. The Indian legal system today suffers
from a similar weakness for it s theoretical foundations are outside India.

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of our state judiciary, as it is the subject-matter of another article in this volume.
High Courts
At the apex of the State Judiciary is the High Court. It is a court of record and not subject to
the superintendence of any court or authority, though appeals from its decision may lie to the
Supreme Court. It consists of a Chief Justice and as many judges as the President of India
may sanction. The number varies from 36 for the Allahabad High Court to 3 for Assam. The
Chief Justice is in charge of the administrative work of the Court and distributed judicial
work among his companion judges. He is also consulted in the appointment of judges in his
own Court. But while sitting in Court, his judicial status is no higher than that of any other
judge and his decisions can be reversed by any two judges in Special Appeal, and if sitting on
a bench of three Judges, he can be overruled by his colleagues. He has no administrative
control over any judge and his status may be described as primus inter pares (first among
equals).
The High Courts hears appeals or revisions from the decisions of all subordinate courts, civil
and criminal. In addition, it has original jurisdiction in matrimonial, Company, and
testamentary cases. A special jurisdiction was conferred on all High Courts by Article 226 of
the Constitution, empowering them to prevent the infringement of fundamental rights of
citizens and other rights, by issuing writs of habeas corpus, quowarranto, prohibition,
certiorari, mandamus, or any other orders of directions. In the exercise of this power, the
High Court can restrain the State from interfering unlawfully with the rights of any citizen
and invalidating any act or order already done or passed. It can also declare invalid any law
passed by Parliament or the state legislature in violation of the fundamental rights of any
citizen. The remedy under Article 266 has proved to be a very popular remedy and several
thousands of petitions are filed every year by citizens throughout India for the protection of
their rights. In the State of Uttar Pradesh alone over three thousand petitions are filed in a
year.
Every High Court Judge is appointed by the President. The recruitment to the High Court
bench is partly from the bar and partly by promotion of district Judges of not less than five
years‟ standing. During his tenure of office, a High Court Judge enjoys complete security of
tenure which is the foundation of judicial independence. A judge can be transferred from one
High Courts to another, but in practice no transfer has taken place except at the desire of the
judge concerned.
Independence of Judges
The principle of judicial independence did not originate with British rule. As I have shown
above, it was fully understood and enforced in ancient India. Katyayana and all other law-
givers (whose injunctions have been quoted above) emphasized the Supreme importance of
judges being independent and fearless even of the king. The Constitution of India adopted the
English doctrine of security of tenure, and a High court or supreme court Judge can be
removed only on the ground of proved misbehaviour or incapacity, and after each House of
Parliament has passed by a two-third majority an address to the President for his removal
(Articles 124 and 217).

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The Supreme Court and National Integration
The Constitution of 1950 created for the first time in Indian history a Supreme Court for the
whole of India. The establishment of this Court with an all-India jurisdiction is likely to
accelerate the development of a common law extending over every nook and corner of the
republic. Article 141 enjoins "that the law declared by the Supreme Court shall be binding on
all Courts in India. " It gives the opinions of our Supreme Court a constitutional force. The
judicial process can be an effective weapon for forging national integration. In England the
law Courts were the most effect weapon for creating a common law for the English people.
There can be no doubt that the Supreme Court by its decisions and opinions, with the
authority of Article 141 behind them, shall accelerate the process of establishing a common
law for the whole of India.
Judiciary has maintained its ancient traditions
After the attainment of freedom the Indian judiciary has maintained the ancient Indian
tradition of judicial independence and integrity. The Supreme Court has set the pace and its
record of independence is second to none in the world. The High Courts, too, on the whole,
have maintained a high degree of independence, and cases of judges carrying favour with the
executive have been rare, The highest praise must go to our subordinate judiciary-the
Munsifs, Civil Judges, and District Judges who have dispensed impartial justice between
citizens of different communities and castes, and whose record compares very favourably
with that of British judges who were not always impartial between Indian and British
litigants. Indian Judges have lived up to the injunction of Brihaspati that a Judge should
decide cases without any motive of personal gain or prejudice or bias and his decisions
should be in accordance with the law prescribed by the text.
The Weakness of Our Judicial Process
The great weakness of our judicial process is that it lacks theoretical nourishment. The impact
on the judicial process of theories of jurists is profound though unseen and subconscious. A
great American Judge, Oliver Wendell Homes, wrote, "The felt necessities of the time, the
prevalent moral and political theories, institutions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellowmen have a great deal more to do
than the syllogism in determining the rules by which men are governed." Another great
American Judge, Benjamin Cordozo, observed, "Logic, and history and custom, and utility,
and the accepted standard of right conduct, are the forces which singly or in combination
shape the progress of the law.86 Roscoe Pound is also of the view that "current moral ideas
and ethical customs are drown upon continually although seldom consciously."87 The
Supreme Court of India has observed that in determining whether any restriction on a
fundamental right was reasonable, there was no abstract of reasonableness and it was
inevitable that the prevailing conditions at the time, and the social philosophy and the scale of
values of the judges participating in the decision should play an important part.88 In ancient
India the judges were required to be well versed in all branches of knowledge (vidya) as well

86 Nature of the Judicial process (1921) Cordozo, pp. 133-11 quoted by Roscoe Pound in Jurisprudence (1949) Vol. 3.p. 470.
87 Jurisprudence, Vol. 1, p. 474.
88 V.G. Rao vs. State of Madras, AIR 1952 Mad. 297

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as jurisprudence and the science of government (dharma-shastrartha kushalai rartha shastra
visharadai).89 But what about today? What is the legal and social philosophy on which the
Indian judges are broght up today?
In England, Western Europe, and the U. S. A., the judge and lawyer have received constant
inspiration and education from the jurisprudence of their civilization which has been
developoing for twenty centuries. Similarly, the judicial process in the U. S. S. R. derives
nourishment from Marxian Jurisprudence which is constantly evolving. But where does the
Indian judge or lawyer received his inspiration from? Not from the jurisprudence of his own
civilization. He knows something of Roman Law and of the theories of western jurists but
very little about the evolution of the law and jurisprudence of his own civilization. The
syllabus for the law degree in an Indian University does not include Indian Jurisprudence or
the theory of the State in ancient India or the History of Indian Law. Consequently our
judicial process is an edifice constructed without theoretical foundations, or rather on
foundations supporting other structures in other lands. As an illustration I may cite a recent
decision of the Supreme Court in which a distinction was sought to be drawn between
governmental activities proper and government‟s commercial undertakings which (it was
observed) "have no relation to the traditional concept of government activities.90 Now,
traditional concept means a concept according to tradition. But which tradition: Indian or
British or American? But in India as I have already indicated the state from times
immemorial has had a public sector. It cannot therefore be said that state commercial
enterprises have no relations to the Indian traditional concept of governmental activities. The
Supreme Court‟s observation is founded on a British or American but not on any Indian
traditional concept. Again the moral and theoretical foundations of our penal code are
foreign. To give an illustration, Manu prescribes public censure as one of the punishments
for crime.91 This provision has been adopted by the Soviet Criminal Code;92 but the Indian
Penal Code, drafted by Macaulay, ignores it altogether, though it can be an effective form of
punishment in many cases. Evidently the Soviet jurists have more regard of Indian
jurisprudence than Indian themselves.
The low standard of legal and juristic studies in India today creates an urgent problem. On the
one hand, our High Courts and the Supreme Court are invested with the power to interpret the
constitution and declare any law or act of the State invalid on the ground that it is
unconstitutional or illegal or restrictive of the fundamental rights of a citizen. The law
declared by the Supreme Court has a binding supremacy throughout the territory of India, and
its appellate powers are wider than those of any other federal court in the world. The
interpretation of the Constitution and the adjustment of the rule of law with economic
progress require of our judges a profound knowledge of jurisprudence and the social science
and a capacity for applying the law of social evolution to judicial process.93 On the other
hand, the standard of legal education in our universities and law colleges is very low. A poor

89 Katyayana 57.
90 Kasturi Lal vs. State of U.P., AIR 1965 SC 1039; 1965(1) SCA 809
91 SANSKRIT SLOK
92 Article 21, Fundamental Criminal Code of U.S.S.R.
93 Our ancient jurists had evolved the evolutionary concept of law and grasped the scientific truth that the laws must change
with social conditions:
SANSKRIT SLOK

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legal education makes poor jurists and judges. The present disparity between the power and
intellectual equipment of those who will be our future judges creates a problem which the
state can ignore only at its peril.
I am all in favour of our Universities teaching the best that Western and Soviet thought and
science can tell us. But the almost complete neglect of Indian jurisprudence and political
philosophy leaves the education of every Indian lawyer and judge incomplete. I have come
to the conclusion that the foundation of legal studies must be the study of Indian
jurisprudence and every Indian University should include it as a compulsory subject for the
Bachelor of Law Degree.
I concede that there is much in Indian jurisprudence which is out of date today. But this is
true of every system of jurisprudence. The Greek and Roman civilizations were based on
slavery. The divine right of kings prevailed in Europe till the end of the 17th century. The
law of reason was often identified with the law of a Christian God. There was no freedom of
belief or worship in Europe, and many were burnt alive for the offence of heresy, including
Jeanne D‟ Arc who today is worshipped as a saint. Women were tried and burnt for the
offence of being witches and men for having communion with the devil. Some of the
peculiar absurdities which disgraced law and justice in Western Europe are absent in Indian
jurisprudence. Till the very end of the seventeenth century, trails of animals for criminal
offences were taking place in Europe. I shall cite the following illustrations from Keeton‟s
Elements of Jurisprudence.94 In Germany, a cock was solemnly placed in the prisoner‟s box,
and was accused of contumacious crowing. Counsel for the defendant failed to establish the
innocence of his feathered client, and the unfortunate bird was accordingly ordered to be
destroyed. In 1508, the caterpillars of Contes, in Provence, were tried and condemned for
ravaging the fields, and in 1545, the beetles of St. Jean de-Maurienne were similarly indicted.
So late as 1688, Gaspari Bailey of Chamberg of Savoy was able to publish a volume
including forms of incitement and pleading in animal trials. These absurdities find no place
in their judicial system of ancient India which according to one British writer was "in
advance of our own today."95
Rights and Duties
An important difference between Indian and Western jurisprudence is their respective
attitudes to rights and duties. They are correlated in both systems, but the emphasis is
different. In Indian jurisprudence the emphasis is on obligations. In fact, the word right
(adhikar) does not occur even once in the whole of the Anushasan Parva or the Arthasastra.
Indian jurisprudence is founded on theories which emphasise that rights are corollaries of the
duties. Even freedom of speech is recognised as a duty to speak without fear. In Western
jurisprudence, on the other hand, rights, natural or legal, are primary, though every right must
have a corresponding duty. This emphasis on rights in one case and obligations in the other
has had important effect on social institutions like marriage. Under Indian jurisprudence
marriage was a duty, a job to be performed as one of the many social obligations, which
everyone had to perform. But the pre-occupation of Western jurisprudence with rights has

94 Elements of Jurisprudence: Keeton, p.

95 John w. Spellman, 1964, p.128.

37
resulted in marriage being looked upon as an alliance from which each partner tries to get us
much as he or she can. The high rate of divorce is the result of neglecting the „duty‟ aspect of
marriage.
Future role of Indian Judiciary
What shall be the role of our judiciary in the coming social and economic revolution. The
judicial system does not operate in a vacuum. The administration of justice has a social
function and the judicial process is only a part of the larger social process. Therefore the
courts of law cannot function in defiance or ignorance of the social objectives or "the felt
necessities of times" as Mr. Justice Homes called them. The maxim Fiat fiat iusticia et peret
mundes (Justice must be done though the beams may fall) emphasizes the impartiality of the
judges but does not permit the judiciary to be indifferent to social needs.
In theory the judiciary does not legislate; it only states what the law is. But as Goethe
observed,96 "the facts of life are more potent than abstract theories."
In practice the judicial process is infinitely more complex than the bare theory of separation
of powers. The Judges cannot help making the law while interpreting it. Under the guise of
explaining the law the U. S. Supreme Court delivered opinions which affected the destinies of
the American people. A former Attorney-General of the United States writes of the U. S.
Supreme Court:
"………….. this Court has repeatedly overruled and thwarted both the Congress and the
Executive. It has been in angry collision with the most dynamic and popular Presidents in our
history. Jefferson retaliated with impeachment; Jackson denied its authority; Lincoln
disobeyed a writ of the Chief Justice; Theodore Roosevelt proposed recall of judicial
decisions: Wilson tried to liberalize its membership; and Franklin D. Roosevelt proposed to
„reorganize‟ it. It is surprising that it should not only survive but, with no might except the
moral force of its judgment, should attain actual supremacy as a source of constitutional
dogma.
"Surprise turns to amazement when we reflect that time has proved that its judgment was
wrong on the most outstanding issue upon which it has chosen to challenge the popular
branches. Its judgment in the Dred Scott case was overruled by war. Its judgment that the
currency that preserved the Union could not be made legal tender was overruled by the
Sixteenth Amendment. Its judgments repressing labour and social legislation are now
abandoned. Many of the judgments against New Deal legislation are rectified by confession
of error. In no major conflict with the representative branches on any question of social or
economic policy has time vindicated the Court."97
Indian Constitution, a Synthesis
The role of the Indian judiciary cannot be isolated from the social objectives of the nation.
Our Constitution has; set before the Indian people the ambitious goal of achieving a synthesis
of the Western and the Communist way of life, individual liberty and social control, abolition

96 Grau, teurer freund, ist alle theorie, und grun des lebens goldner baum (Gray, may friend, is all theory, and green the
golden tree of life)- Faust, Scene IV.
97 The struggle for Judicial Supremacy: Jackson.

38
of anarchy in production and preservation of democracy in Government-in a word, of
political and economic freedom. I must not be understood to mean that there is absolutely no
political freedom in the Soviet State or economic progress in the Western democracies. The
division of the world into black and white and with no shades of grey is good propaganda for
the "cold war" but a poor statement of facts. The difference is one of emphasis. The Soviet
system placed economic progress before political freedom because the Soveit Government
has uptil now been struggling with the problem of transforming a multi-national, multiracial,
multi-lingual, and multi-religious community living in a huge, sprawling, state into a modern
industrial nation. Today the words "economic planning" and "political democracy" are
accepted on both sides of the so-called iron curtain. Our Constitution attempts to achieve a
synthesis of the two. It reflects the spirit of non-alignment in the field of constitutional law.
Social control of industry is in accord with the Indian tradition. I have already indicated that
the state in ancient India had a huge public sector, and the Arthashastra prohibits such trade
practices as cornering the market to raise prices.
The Indian Constitution has set before our people a very ambitious and difficult goal. A
Constitution is not a collection of abstract theories, nor does it operate in a vacuum. It reflects
a way of life which enables a particular people to realize its objectives and ambitions. If it
fails to do this, it will be amended or discarded by agreement or otherwise. The Compulsive
forces of social life are irresistible in the end.
Condition of National Survival
The people of India has taken upon itself the titanic task of the transformation of her
economy within one generation. Our state is determined to achieve within a few years what
took Britain and other countries several centuries. There is no choice left for India in this
matter. The Himalaya is no longer our shield. Industrial strength has now become a condition
of our survival.
The only other country in the world which was able within a single generation to transform
itself from a backward rural and agricultural community into a modern industrial and highly
powerful state in U.S.S.R. But the political system of the Soviet State is very different from
that of India. We are living under a constitution based on the principle of the parliamentary
democracy, which has the merit of acting as a brake on the arbitrary exercise of power. But a
brake is a brake; it provides safety, not speed. And what India needs is speed in social and
economic revolution, because our very survival as a nation depends upon the speed of our
economic development. It is possible to achieve a rapid economic transformation under the
present system of laws? This is the fundamental question facing not only India but the whole
of the non-communist world. This problem was states ten years ago by an American journal,
in a special article devoted to India, in the following words:
"Nikita Khruschev has challenged the West to complete against communism in the task of
developing the under developed lands… And as the Fifties give way to the Sixties the
question that India faces is: can these poor people, multiplying at the rate of 9 million a year
be kept alive under a system of free parliamentary government? Or will India be forced, in a
desperate attempt to keep its masses from starving to throw aside its democratic institutions

39
(as much of Asia already has) and adopt in their place the ruthless methods of communist
China.98
It is no exaggeration to say that on the ability, wisdom and patriotism of our future judges
depends to some extent the future of the rule of the law and parliamentary democracy in
India. But wise judges do not drop like Ganga from heaven: they grow out of the social soil
and are nurtured by the social atmosphere. Great judges are not born but made by proper
education and great legal traditions, as were Manu, Kautilya, Katyayana, Brihasparti, Narada,
Parashara, Yajnavalkya, and other legal giants of ancient India. The continued neglect of
legal education is against the national interests.

98 News Week, Dec. 19. 1959, Challenge of Communism.

40
 “Ancient Indian Jurisprudence VIS-À-VIS Modern Jurisprudence”
By: Hon’ble Mr. Justice Markandey Katju, * Judge, Supreme Court of India

Jurisprudence is the philosophy of law, In other words, it seeks to explain what law. In other
words it seeks to explain what law is about in the most general way.

Most laws deal with specific subjects e.g. the Indian Penal Code (which deals with crimes),
the income-tax Act (which deals with the imposition and collection of Income-tax), the
Industrial Disputes Act, etc. Jurisprudence, on the other hand, discusses law in the most
general way e.g. what is law, what is its purpose, how it originated, how does it develop,
what are its basic concepts and structure, what is its relation with other social phenomena like
the economy, the social system etc.

Law is a set of rules which govern society. However, there are other systems like religion,
morality, etc. which also prescribe rules of social conduct. What is it that makes law different
from religion, morality, etc.?

The answer is that law, while prescribing rules of social conduct (as do religion, morality,
etc.) is mainly concerned with property. It was when private property came into existence that
law also came into existence. This needs to be explained.

When man was in the hunting stage, which was before the beginning of agriculture, he was
mainly living in forests and survived by eating animal flesh, fruits, nuts, etc. At that stage
man was living in tribal society, and his life was controlled by customary rules. There was
no private property at that stage or social development, because the forests had not been cut
for doing agriculture. Hunting was done collectively by the males of the tribe, and the animal
which was killed in the hunt was eaten collectively.

It was only when forests were cut and agriculture started that private property came into
existence. Once man claimed that a certain plot of land belonged exclusively to him, another
claimed another plot of land, etc. In order to safeguard this property the law of crime had to
be created, whose main purpose is to protect property.

Thus the basic law is the Criminal Law. The first rule in this law is the law against theft,
whose purpose is to protect private property. Apart from the criminal law, some other laws
had also to be developed in connection with property.

After private property came into existence man was seized with the acquisitive instinct. He
wanted to acquire property and retain property. One can retain property as long as one is
alive, but people wanted to retain their property even after their death. How could this be
done? This could be done by ensuring that one‟s property goes to one‟s child, because in a
sense one‟s child is part of oneself. Hence the law of inheritance was created, which is also
one of the basic laws, apart from the criminal law.

The institution of marriage also came into existence with the coming of private property.
Since man wanted his property to go to his child after his death, he wanted to make sure that
a certain child was his child. This was only possible if the women with whom he had sex
relations had no sex relations with any other man. Only then could he be sure that a
particular child was his child. Thus, exclusiveness of sex relations is the basis of marriage,

41
and the purpose of the marriage institution is to ensure retention of private property even after
one‟s death.

Thus, we see that law, unlike custom or religion, mainly deals with property and this is what
distinguishes it from religion, morality, etc. although these systems also regulate social
conduct.

We may now deal with Ancient Indian Jurisprudence.

Ancient Indian Jurisprudence

In ancient India not only was there tremendous development of mathematics, astronomy,
medicine, grammer, philosophy, literature, etc. but there was also tremendous development of
law. That is evident from the large number of legal treatises written in ancient India (all in
Sanskrit). Only a very small fraction of this total legal literature survived the ravages of time,
but even what has survived in very large.

It is said that all Hindu law Originated from the Vedas (also called Shruti). However, in fact
this a fiction, and in fact the Hindu law really emanated from books called the Smritis e.g.
Manusmriti, Yajnavalkya Smiriti and the Smritis of Vishnu, Narad, Parashar, Apastamba,
Vashisht, Gautam, etc. These Smirits were not laws made by parliament or some legislature.
They were books written by certain Sanskrit scholars in ancient times who had specialized in
law. Later, commentaries (called Nibandhas or Tikas) were written on these Smritis, e.g. the
commentary called Mitakshara on the Yajnavalkya Smriti), the commentary of Jimutvahan
who wrote a book called the Daya bhaga (which is not a commentary on any particular Smriti
but is a digest of several Smritis), Nanda Pandit (whose commentary Dattak Mimansa deals
specifically with the Law of Adoption), etc. Commentaries were then written on these
commentaries, e.g. Viramitrodaya, which is a commentary on the Mitakshara (which founded
the Banaras School of Mitakshara). It is not necessary to go into further details about this as
that would not be necessary for this discussion.

All law was originally customary law, and there was no statutory law in ancient India, for the
simple reason that there was no parliament or legislature in those times. The problem with
customs, however, was that it was often vague and uncertain, and did not go into details.
Customary rules could of course tell us that when a man dies his property should go to his
son. But what would happen it there is no son and the deceased only leaves behind him
several relations who are distantly related to him e.g. second cousins, grand nephews, aunts,
etc. Who will then inherit his property? This could obviously not be answered by custom.
Hence text books were required to deal with this subject, and this requirement was fulfilled
by the Smritis and Commentaries in ancient India, just as it was done in ancient Rome.
Custom no doubt prevailed over these written texts but for that clear proof was required by
the person asserting its existence, which was not easy.

In ancient Rome most of the law was not made by the legislature but by the writings of
eminent Jurists e.g. Gauis, Ulpian, Papinian and ultimately the great Justinian Code. This
trend was followed in the civil law system which prevailed in Continental Europe where the
commentaries of eminent Jurists are cited in the law Courts, unlike in the common law
system (which prevails in England and the former. English Colonies including India, USA,
Australia, etc.) in which Court decisions are cited as precedents.

42
It is not necessary to deal with the various Smritis and Commentaries in this short time so I
shall confine myself with some broad outlines.

The Hindu Law, as we all know, got divided into two branches – the Mitakshara and the
Dayabagha. The Mitakshara prevailed over the whole of India except Bengal and Assam,
while the Dayabhaga prevailed in Bengal and Assam.

What was the basic difference between the two branches? The difference arose because two
different interpretations were given by the commentators to one word „pinda‟.To understand
this it is first necessary to know that according to the traditional ancient Hindu law approach,
the person who had the right to give Shraddha to a deceased had the right to inherit the
property of the deceased. The Shraddha is a religious ceremony to satisfy the needs of the
spirit of the deceased. According to ancient Hindu belief, when a man dies, his spirit had still
some needs e.g. the need for food and water. Hence, after his death, he has to be offered rice
cakes (called „pinda‟) and water.

There is a shloka of Manu stating that when a man dies his inheritance will go to his nearest
spinda (vide Manusmriti Chapter IX, Sloka 106 and 187). What is the meaning of the work
„sapinda‟? That will depend on the meaning of the word „pinda‟.

According to Jimutvahan, the word „pinda‟ means the rice cake offered in the shraddha
ceremony to the ancestors (vide Dayabhaga Chapter XI, 32-33 and 40). Thus, according to
the Dayabhaga, the person who has a right to give „pindas‟ to the deceased (i.e. the person
who has the right to give shraddha to the deceased) has the right to inherit his property.

This brings us then to the question who has the right to give shraddha? The answer to this
question is given in the book called “Parvana Shraddha‟ (which is also in Sanskrit). In this
book a list of persons is given who have the right to give shraddha. At serial No.1 in the said
list is the son, at serial No.2 is the son‟s son at serial No.3 is the son‟s son‟s son etc. the rule
was that if any one higher in this list is alive then one does not have to go below the list, and
the list terminates there. To give an example, if the deceased died leaving behind him one or
more sons, then one does not have to go below that list and the entire property will be
inherited by the son (if he is the sole son), and will be shared equally by all the sons if there
are more than one sons (because if there are more than one sons each of them had the right to
give shraddha to his deceased father).

It is only if a deceased dies leaving behind no son, that one can go lower in the list. In that
case, if the deceased left behind him his son‟s son, then the property will go to that grandson,
because he is at serial No.2 in the list in the Parvana Shraddha, and one cannot go further
below in such an eventuality.
Thus the Dayabhaga has followed the traditional ancient Hindu law approach that the person
who has the right to give shraddha to a deceased has the right to inherit his property.

It is for this reason, there is no inheritance at birth in the Dayabhaga (unlike in the
Mitakshara). Thus, for example, if a dies leaving behind him his son B and B‟ son C, then
according to the Dayabhaga C will not inherit the property of his grandfather A, because C
has no right to give shraddha to A since his father B was alive when A died. Since C has no
right to give sharddha to A., (because B is alive), hence C cannot inherit his grandfather A‟s
property, and the entire property goes to B or, if B has brothers, then it is shared equally by
all the brothers.

43
For the same reason, there is no concept of coparcenery property in the Dayabhaga, because
in coparcenery, there is inheritance at birth by the son in the ancestral property of his father.

In Mitakshara, however, Vijnaneshwar takes a wholly different approach. According to

Vijnaeshwar, the word „pinda‟ does not mean the rice cake offered in the funeral ceremony at
all. It means the particles on the body of the deceased. In other words, inheritance is by
nearness of blood or propinquity, and it has nothing to do with the right to give shraddha.

This was a completely revolutionary approach adopted by Vijnaneshwar, as it was a complete

break from the traditional Hindu law view that the person who has the right to do shraddha
has the right to inherit the properly of the deceased, and it is a good example how the law
developed, Mitakshara is a much more secular law as compared to the Dayabhaga, since,
according to the Mitakshara, the right to inherit has nothing to do with the right to give
shraddha.

Thus we see that by giving two different interpretations given to a single word „pinda‟ Hindu
law got bifurcated into two different branches.

The Mitakshara, as already stated above, is a commentary on the Yajnavalkya Smriti. An

interesting question arises as to why Vijnanvalkya preferred to write his commentary on the
Yajnavalkya Smriti and not on the Mnusmriti. The Manusmriti was better known and more
prestigious than the Yajnavalkya Smriti. Yet, Vijnaneshwar preferred Yajnavalkya Smriti to
Manusmriti. The question is why?

If we compare Manusmriti with Yajnavalkya Smriti, we will find a striking difference. The
Manusmriti is not a systematic work. We will find one shokla dealing with religion, the next
dealing with law, the third dealing with morality, etc. everything is jumbled up. On the other
hand, the Yajnavalkya Smriti is divided into three chapters. The first chapter is called Achara
which deals with religion and morality, the second chapter is called Vyavahara, which deals
with law, and the third chapter is called prayaschit which does with penance. Thus we find
that in the Yajnavalkya Smriti, law is clearly separated from religion and morality, unlike in
Mnusmriti where all these are jumbled up. Thus the Yajnavalkya Smriti was a great advance
over the Manusmriti because in it there is a clear separation of law from religion and
morality. We can compare this separation of law from religion, morality etc. with the similar
separation made by the positivist jurists Bentham and Austin, who separated law from
religion, morality etc. The Yajnavalkya Smriti was written later than the Manusmriti and it
shows a great advance over the later.
Apart from that, the Yajnavalkya Smriti is more concise and systematic. It has only about
1000 sholks, whereas the Manusmriti has about 3000. Also, it is more liberal than the
Manusmriti, particularly towards women, etc. Vijnaneshwar, who adopted a secular approach
towards inheritance, naturally preferred Yajnavalkya Smriti to the Manusmrit since the
former had clearly separated law from religion. The Dayabhaga, on the other hand, preferred
Manusmriti because in it law is not separated from religion and the Dayabhaga takes a
religious approach towards inheritance.

The separation of law from religion, morality, etc. was carried further by Narada and
Brihaspati, who in their Smritis confine themselves entirely to law, particularly civil law.

44
I am not going into various details about the Hindu law of inheritance, adoption, partition,
marriage etc. However, to show how the law progressed I will only give some illustrations.

There is a text of Vashishta which says “a woman should not give or take a son in adoption
except with the assent of her husband”. This has been interpreted in 4 different ways by our
commentators : (1) The Dattak Mimansa of Nanda Pandit holds that no widow can adopt a
son because the assent required is assent at the time of adoption, and since the husband is
dead no assent of his can be had at the time of adoption. Vachaspati Mishra, founder of the
Mithila School of Mitakshara, is of the same opinion, but for a different reason. According to
him, adoption can only be done after performing a ceremony called dattak homa, and since a
woman alone cannot adopt. (2) The Dayabhaga view is that the husband‟s assent is not
required at the time of actual adoption, and hence if the husband had given assent in his
lifetime his widow can adopt after his death. (3) The view of the Dravida School of
Mitakshara is that the word „husband‟ in the expression „except with the assent of the
husband‟ is only illustrative and not exhaustive, and hence if the husband is dead the assent
of his father or other senior male member of the family is sufficient.

In this connection it may be mentioned that the illustrative rule of interpretation is a departure
from the literal rule which normally has to be adopted while construing a text. However,
sometimes departures from the literal rule are permissible, and one of such departures in the
illustrative rule. To give an example, in Sanskrit there is an off quoted statement “Kakebhyo
Dadhi Rakshitam” which means “protect the curd from the crows”. Now in this sentence the
word „crow‟ is merely illustrative and not exhaustive. The statement does not means that one
should protect the curd only from crows but allow it to be eaten up by cats, dogs or to get
damaged by dirt or fifth etc. It really means that one should protect the curd from all dangers.
Hence the word „crow‟ in the above statement is only illustrative and not exhaustive.

We can take another example. In the U.S. Constitution, Article 1 Section 8 states that
Congress (the American parliament) can raise Armies and Navies. There is no mention of an
Air Force there, obviously because there were no aircraft in 1791 when the U.S. Constitution
was promulgated. The first aircraft was invented by the Wright brothers in 1903. However,
today‟s reality is that a modern Army cannot fight without air cover. Amendment to the U.S.
Constitution is a very ardous and lengthy procedure because it requires two-third majority of
both Houses of Congress and ratification by three-fourth of the States. By the time this is
done, the enemy may invade and occupy the country. Hence the words „Armies and Navies‟
have to be interpreted as illustrative and not exhaustive, and they really means all armed
forces necessary for the security of the country (which would include an Air Force, also).

(4) The Vyavaharmayukha and Nirnayasindhu of the Bombay School of Mitakshara hold that
assent is required only for the woman whose husband is living, and hence a widow can freely
adopt unless she had been expressly forbidden by her late husband, in his life time.

The above widely differing interpretations of the text of Vashishta shows how by creative
interpretation the law developed in different parts of the country.

We may take another example. The son of a man from his legally wedded wife is called an
„aurasa putra‟. One the other hand, an adopted son is called a dattak putra. As regards the
right of an auras putra, they are mentioned in various legal texts (the Smritis and the
commentaries). On the other hand, there is no mention anywhere what would be the rights
and duties of a dattak putra.

45
This legal vacuum was overcome by our ancients jurists by using one of the Mimansa
principles of interpretation. It may be mentioned herein that the Mimansa principles of
interpretation were the principles regularly used by our great jurists whenever they faced any
difficulty in interpreting a legal text (because of ambiguity, conflict etc. therein). The books
on Mimansa are all in Sanskrit, but there is a good book in English called “Mimansa Rules of
interpretation‟ by Prof. Kishori Lal Sarkar, which may be seen if one wishes to go deeper into
the subject.

One of the Mimansa principles is called the atidesh principle, and this was used by our
ancient Jurists to solve the problem of the rights and duties of a dattak putra. What is this
atidesh principle? To explain this it may be mentioned that the rules for performing certain
yagyas are given in religious books called the Brahmanas, e.g. Shatapath Brahmana, Aitareya
Brahmana, etc. The yagyas whose rules of performance are given in the Brahmanas are
known as Prakriti yagyas. Thus, the Darshapaurnamas is a prakriti yagya, because the rules
for its performance are given in the first chapter of the Shantapath Brahman. Similarly, the
agnihotra is also a prakriti yagya, because its rules of performance are given in the second
chapter of the Shatapath Brahman.

However, there were certain other yagyas whose rules of performance are not given
anywhere e.g. the Saurya Yagya. Such yagyas are called Vikrit yagyas. How was a vikrit
yagya to be performed? For resolving this difficulty (in fact all the Mimansa principles were
created for resolving the practical difficulties in performing the yagya) the atidesh principle
created. Atidesh realy means going from the known to the unknown. Hence, it was held that
a Vikrit yagya should be performed in accordance with the same rules as the Prakriti yagya of
the same category. For instance, the Saurya yagya, which is a Vikrit yagya, belongs to the
category of the Darshapaurnamas,

Now, we may consider how the atidesh principle, which was created for religious purpose,
began to be used in the field of law. As stated above, a son which a man has through his
legally wedded wife is called an „aurasa putra‟. His rights and duties are given in the smritis.
But as regards a dattak putra (adopted son) his rights and duties are not given anywhere.
Hence the atidesh principle was used and it was said that legally a dattak putra stands on the
same footing as an aurasa putra, and hence he has the same rights and duties. Thus, an
adopted son is legally exactly like a natural son (except that his prohibited degrees of
relationship for marriage are on both sides, his natural family as well as his adoptive family).
In other words, the aurasa putra is treated as prakriti yagya, while the dattak putra is treated
as a vikrit yagya.

The atidesh principle will have even greater utility in modern times because since society in
the modern age is fast changing often cases will come up before the Court where the law is
silent (because the legislature cannot contemplate all the situations which will arise in the
future).

I am not going into the further details about the ancient Hindu Law principles which would
require a great detailed analysis. It can be said in brief that Hindu law was not stagnant but
underwent continuous development as society developed, and this development was aided by
the creative thinking of our ancient Jurists.

46
The basic structure of the ancient Hindu law was that laid down in the Smritis which was
supplemented and varied by custom. This, however, was only its early character.
Subsequently, it made remarkable progress during the post smriti period (commencing about
the 7th Century A.D.) when a number of commentaries and digests (Nibandhas and Tikas)
were written on it. These commentaries and digests were necessary not only because Smritis
were written in Shlokas which were very terse and concise, because of which it was
sometimes difficult to understand the meaning, but also because society was undergoing
changes and this required creative thinking by the later Jurists to make the law in consonance
with social developments.

As stated by Mayne in his treatise on „Hindu Law and Usage‟:

“Hindu law is the law of the Smritis as expounded in the Sanskrit Commentaries and Digests
which, as modified and supplemented by custom, is administered by the Courts”.

The smritikars and commentators did not exercise any sovereign power such as is possessed
by the king or the legislature. Their authority was based on their deep scholarship and the
respect which they commanded by their writings.

In this connection, it may be mentioned that in the guise of commenting on the Smritis, the
commentators utilizing their creativity developed and expounded the Smriti text in greater
detail and differentiated between the Smriti rules which continued to be in force and those
which had become obsolete. They also incorporated new usages which had sprung up.

The Smritis and commentaries repeatedly stated that customs would override the written text.
This principle made the Hindu law dynamic, because customs kept changing as society
progressed. Also, as explained by the Viramitrodaya, the difference in the Smritis was in part
due to different local customs.

Medhatithi in his commentary on the Manusmriti wrote that the Smritis were only
codifications of the existing customs, and the same has been said in the Smriti Chandika
(which is the basic text of the Dravid School of Mitakshara) and the Vyavahar Mayukh
(which is a basic text of the Bombay School of Mitakshara). This however, is not a very
accurate view. Though no doubt the smritikars and commentators relied heavily on customs,
they also used their creatively to develop the law to make it more just and rational according
to their own notions.
The study of ancient Indian Jurisprudence really belongs to the school of Jurisprudence called
historical Jurisprudence, whose father is regarded as the German Jurist Savigny (1799-1861),
whose follower was the British Jurist Sir Henry Maine (see Maine‟s Ancient Law”).
According to Savingy, law is not a consciously created phenomenon but was the gradual
distillation of the volksgeist (the spirit of the people). Law was found, not made. Thus,
Savigny was a strong advocate of customary law and was opposed to legislation. As law
develops from a few simple principles of primitive societies to complexity in later society
custom has to be supplemented with writings of legal scholars, but the writer should only
bring into detailed shape what he finds as raw material i.e. the customary rules in society.

No doubt, the historical school made an important contribution to our understanding by

suggesting that law is not merely a set of artificial rules imposed on society but is an outcome
of the social system as it has evolved in history. However, the historical school was
essentially reactionary in character in as much as it made a fetish out of custom. As Justice

47
Holmes said, “It is revolting to have no better reasons for a rule than that it was so laid in the
time of Henry IV”. Historical jurisprudence presented a determined reaction to the
rationalizing of the eighteenth century. Savigny was inspired by his profound study of
Roman law, whose development was to him the model of wise juristic guidance moulding the
law through gradual adaptation for centuries before the Corpus Juris gave the final form of
codification. This explains Savingny‟s preference for the jurist rather than the legislator as
the medium of legal progress.

The historical school is entirely unsuited to the scientific era. In the age of rapid technical
growth people are not prepared to wait for the slow growth of custom. Legislation is, in fact,
the dominant source of law today, as it enables rapid change in the law, and this rapid change
is necessary in modern industrial society which is fast changing in view of new scientific
discoveries and inventions.

Savigny‟s views were coloured by his hostility to the French Revolution which destroyed the
feudal order and spread the revolutionary ideas of liberty, equality and fraternity proclaimed
by the French National Assembly and the National Convention. Savigny was of the view that
„law comes from the people, not from the State‟. This may be true of feudal or pre-feudal
law, but it certainly is untrue of the modern industrial era where almost all law comes from
the State.

Modern Jurisprudence

The first attempt to create a scientific theory in jurisprudence was the positivist theory of the
English jurists Bentham and Austin. We may, therefore, discuss this theory at some length.

Science studies objective phenomena as it is, and not how we would like it to be. This was
precisely the approach adopted by the positivist jurists in law.

There are two kinds of sciences (1) natural science and (2) social science. The natural
sciences study inanimate matter (e.g. physics, chemistry etc.) or living organisms like plants
and animals (botany and zoology) and also the physical body of human beings (medical
science, including anatomy, physiology etc.). The social sciences, on the other hand, study
the social behaviour of human beings, e.g. economics, political science, sociology etc.
Jurisprudence is also one of the social sciences.
The French thinker Auguste Comte is known as the father of positivism. What he did was to
introduce the method of the natural sciences into the social sciences. This method was
careful observation, logical analysis, experimentation, logical inferences etc.

The British jurists Bentham and Austin utilized the positivist approach of Auguste Comte to
the subject of jurisprudence. They insisted that we should study the law, including the legal
structure, the legal concepts etc. as it is, and not how we would like it to be. This was the
scientific approach because in science also we study objective phenomena as it is and not
how we like it to be. For instance, when we study the atoms in physics we study the nucleus,
the electrons orbiting around it, etc. We do not speculate how the atom should behave
according to our own wishes, but we study it as it is. The same approach was adopted by
Austin and Bentham in jurisprudence.

This was in sharp contrast to the preceding theory in jurisprudence which was called the
natural law theory. The natural law theory postulated that along with the positive, man-made

48
law there exists a higher law which emanates from God or reason or morality or some other
source. According to the natural law jurisprudence, if there is a conflict between this higher
law and the positive man-made law, the higher law and the positive man-made law, the
higher law will prevail. Thus, natural law was of the view that law is what it ought to be, and
a bad law was not law at all.

St. Thomas Aquinas in his “Summa Theological‟ state, “A human law, insofar as deviates
from reason, is called an unjust law, and has the nature, not of law but of violence”. In the
words of Blackstone, the great British jurist of the 18th Century:

“Those laws must be obeyed which are accordant with nature; the others are null in fact, and
instead of obeying them they ought to be resisted. Human laws must not be permitted to
contradict natural law; if a human law commands a thing forbidden by the natural or divine
law, we are bound to transgress that human law”.

In modern times the natural law theory was most vehemently advanced during the American
and French revolutions. It was proclaimed that liberty, equality and fraternity are inherent and
„natural‟ to man. But these ideas would be unacceptable to the ancient Greeks and Romans,
though they also believed in natural law. To a Greek or Roman, slavery was a „natural‟
phenomenon, and therefore, equality or liberty would be „unnatural‟. Thus what is regarded
as „natural‟ in one era and in one society may not be so regarded in another.

The basic difficulty with natural law is that it is vague. What is natural? The answer may
differ not only from age to age but even from person to person. How can one frame a legal
system on this basis? People wish to have clear-cut, known laws so that they may regulate
their conduct accordingly. Natural law is such a hazy concept that, if sought to be enforced,
it can only result in confusion. As Kelsen said, with natural law one can prove everything and
nothing. Bentham regarded natural law as metaphysical nonsense. Similarly, the Danish
jurist Ross (1899-1979) in his book „On Law and Justice‟ (1958) and logical positivists like
Carnap (1891-1970) said that the metaphysical speculation underlying natural law was totally
beyond the reach of speculation. They pointed out that natural law can be used to defend or
fight for every conceivable demand, and it had been used to defend slavery (in Ancient
Greece and Rome). Totalitarians have found support in the natural law writings of Duguit and
Del Vecchio, while advocates of greater freedom have relied on the writings of the French
Philosopher Martain (1882-1973) and the American jurist Lucey.

Natural law theories arose during the periods of historical transitions and turmoils e.g. during
the American and French Revolution. There was also a temporary revival of natural law after
the World War II, particularly in Germany where jurists like Radbruch were of the view that
Nazi racial laws were so bad that they could not be regarded laws at all. However, soon after
this „revival‟, the natural law was obviously too vague and uncertain a concept to be accepted
in modern industrial society which requires clear-cut rules and ideas.

Positivism, therefore, replaced natural law as the predominant theory in jurisprudence.

Positivism lays great emphasis on statutory law, i.e. the law made by the legislature or its
delegates, and it is ideally suited to the industrial era (unlike historical jurisprudence which
was the jurisprudence of the feudal and pre-feudal era).

49
The confusion and uncertainties in the feudal laws in most countries of Europe upto the 18th
century were impeding the growth of industry, and had to be replaced by simplification,
systematization, clarity, uniformity and precision in the industrial era.

Positivist jurisprudence was the response to this situation. The Austinian analytical school is
widely regarded as the classical positivist theory.

According to Austin: (1) Law is the command of the sovereign, backed up by sanctions (2)
Law is different from morality, religion, etc.

Thus, positivist jurisprudence regards law as a set of rules (or norms) enforced by the State.
As long as the law is made by the competent authority after following the prescribed
procedure it will be regarded as law, and we are not concerned with its goodness or badness.
We may contrast this with the natural law theory which says that a bad law is not a law at all.

The separation of law from ethics and religion was a great advance in Europe from the feudal
era (in which they were all mixed up). “The science of jurisprudence” Austin says “is
concerned with positive laws or with laws strictly so called, as considered without regard to
their goodness or badness”. Thus, positivism seeks to exclude value consideration from
jurisprudence, and confines the task of the latter to analysis and systematization of the
existing laws.

Austin regards law as the command of the sovereign, and since in modern society the most
common form in which such command occurs in a statute, statutory law, and especially
codification, were given the highest place in positivist jurisprudence.

Thus, in France, the Civil Code of 1804 (the Code Napoleon) evoked great admiration from
the French lawyers. Before this Code there were scores of legal systems in France, each
province having its own laws (often a hotch-potch of local customs, Roman Laws, decrees of
the parliaments, etc.) and the result was total confusion and uncertainty in the law.

By simplifying the law, and standardizing it all over France, the Code Napoleon was a great
step forward in history. It was followed by other Codes, e.g. the German Code of 1896.

Positivist jurisprudence was thus of great help in society‟s progress from the feudal to the
industrial era.

In the 20th century, the main positivist jurist is Kelsen, but it is not necessary to deal with his
theory (The Pure Theory of Law) here.

While positivism was a great advance over natural law and was suited to modern industrial
society, it had a great defect and that was this: it rigorously excluded a study of the social,
economic and historical background of the law. Positivism only studied the form, structure,
concepts etc. in a legal system. It was of the view that study of the social and economic
conditions and the historical background which gave rise to the law was outside the scope of
jurisprudence and belonged to the field of sociology.

However, unless we see the historical background and social and economic circumstances
which give rise to a law it is not possible to correctly understand it. Every law has a certain
historical background and it is heavily conditioned by the social and economic system

50
prevailing in the country. The greate defect in positivism therefore was that it reduced
jurisprudence to a merely descriptive science of a low theoretical order. There was no
attempt by the positivist jurists, like in sociological jurisprudence, to study the historical and
socio-economic factors which gave rise to the law. Positivism reduced the jurisprudence to a
very narrow and dry subject which was cut-off from the historical and social realities. Thus it
deprived the subject of jurisprudence of flesh and blood.

This defect in positivism was sought to be overcome by sociological jurisprudence, which

became an important trend in the twentieth century. Sociological jurisprudence studies the
legal system not in isolation but as part of the social reality. This was definitely a great
advance over positivism since, as already mentioned above, the law cannot be properly
understood without knowing its historical and social background. Thus, sociological
jurisprudence considerably broadened the scope of jurisprudence.

There are many schools of sociological jurisprudence e.g. „Living Law‟ school of Ehrlich, the
„Institutional School‟ of Durkheim, the „Harvard School‟ of Roscoe Pound etc. It is not
possible in this short time to discuss all these schools. What is common in most of them is
their de-emphasis on legislation and emphasis on judge made law. The most extreme school
of sociological jurisprudence in the U.S.A. was the realist school. According to Gray, one of
the founders of the realist school, statutes, rules etc. are not law but the material which the
judge uses in making law. Gray was of the view that although sometimes it has been said that
law is composed of two parts, legislative law and judge made law, but in truth all law is judge
made law. Frank regarded Court decisions as „actual law‟ while statutes, rules, etc. are only
„probable law‟

The realist school thus totally negated the normative nature of law, and thereby it negated law
itself.
Normativism is an essential feature of a legal order. A law is a norm (or rule of conduct)
meant for repeated application, and not exhausted by its fulfillment once. A law reflects a
certain social or economic relationship, and this relationship is created by the productive
forces then prevalent in a given society. Since over a course of time the cycles of economic
production kept repeating themselves certain enduring social relationships came into
existence which were reflected, formalized and protected by the law. Law, thus, consists of a
set of rules reflecting these relationships. It is true that in modern scientific society social
relationships are fast changing, but that does not mean that there is instability all the time in
society. There are periods of rest and consolidation, and periods of social advance, and the
law will reflect both.

The basic mistake of the realists is lack of a true understanding of the nature of law. There
are important areas in the law in which judicial discretion cannot be exercised. For example,
after the Hindu Marriage Act, 1955 a Hindu can have (at a time) only one wife. This law is
so clear that no Judge in India can possibly hold that a Hindu can have more than one wife.
Also, it is an oversimplification to say that „law is what the Courts do in fact‟. Many matters
never come to Court, and yet the law is usually complied with.

Since normatively was rejected by the sociological jurists, obviously something had to fill in
the vacuum. This was done by the sociological jurist by giving free discretion to the Judges,
as if Judges can solve all problems of society. Thus, sociological jurisprudence shifted the
centre of gravity of the legal system from statue to judge made law.

51
Thus, having started off from a correct approach, sociological jurisprudence soon got
derailed. It has been mentioned above that positivist jurisprudence laid great emphasis on
statutory, i.e. man made law (as contrasted to historical jurisprudence which emphasized on
customary, i.e. non-manmade law). Sociological jurisprudence, however pointed out that
there were great gaps in the statutory law which had to be filled in by the Judges, and even
the statutory law had to be interpreted by the Judges in a manner as to fulfill the needs of
society. Sociological jurisprudence, thus, shifted the centre of gravity of the legal system
from statutory law to Judge made law.Whereas under positivism a Judge is only a passive
agent and it is none of his function to make law (that is the task of the legislature),
sociological jurisprudence arms a Judge with tremendous powers to play an active role and
even make law.

Sociological jurisprudence, thus, overcame an important defect in classical positivism.

However, it in turn, suffers from major defects, and is unable to satisfy the intellectual needs
of modern society. After all, arming Judges with wide discretionary legislative powers solves
few problems. There are all kinds of Judges, scientific and unscientific, intelligent and dull,
active and passive. To give all power to Judges is thus a superficial solution to the problems
of the modern world.

At present, modern western jurisprudence is undergoing a deep crisis. Despite creating a host
of schools and theories, it seems to have exhausted the possibility of any further development
and is lying stagnant. However, solutions to vital problems still eluded. A new theory in
jurisprudence is, therefore, required in the modern era.

Ancient Indian Jurisprudence and Modern Jurisprudence

Having given the basic feature of ancient India jurisprudence and modern jurisprudence, we
may summarize the differences between the two. Ancient India jurisprudence related to semi
feudal and feudal society, whereas modern jurisprudence is related to industrial society. A
feudal society is basically an agricultural society in which the productive techniques were
primitive and changes in them were very slow. Thus the bullock (In India) and the horse (in
Europe) were used for tilling the land for agriculture. This method of production did not
change for centuries. The productive techniques being primitive, production was low, and
hence changes in the productive technique could not be hazarded for fear that if the
experiment failed people would starve. Since the economic cycle in feudal society kept
repeating itself for centuries (e.g. the kharif crop during the monsoons, rabi crop in winter,
then again the kharif crop in the next monsoon, and again the rabi crop thereafter, etc.)
without radical changes in productive techniques, society was relatively stable.
Consequently, the main form of feudal law was customary law supplemented by written
texts.

In sharp contrast to this is the relative instability of industrial society. Modern industrial
society is characterised by the revolutionary nature of modern industry. Since scientific and
technical progress has no end (because of new scientific discoveries and inventions) social
relations keep changing endlessly. For example, the invention of aircraft in 1903 and the
launching of the first man made satellite in 1957 have brought revolutionary changes in
society. Within a short period man has not only flown in heavier than air machine (thus

52
ostensively violating the law of gravity), but has actually penetrated into the outer space. The
internet was unknown ten years ago but is indispensable today.

Thus we see that while upto the feudal age society was relatively stable and human progress
was very slow, and largely spontaneous (because for centuries the same kind of primitive
productive technique was used for agriculture), the Industrial Revolution of 18th and 19th
century in Europe and America, which later spread all over the world, has completely altered
this situation. Machine production ushered in totally new kinds of social relation. The basic
feature of modern society is its remarkable instability due to the revolutionary nature of
modern industry. By continuously changing the techniques of production (by new scientific
inventions and discoveries) modern industry is constantly causing major changes in social
relation and, therefore, in the law. While feudal society was based on conservation of
production techniques, industrial society is based on continuously altering and improving
them.

As already stated above, the main source of law in modern times is legislation. By its very
nature, legislation brings about at a particular moment abrupt change in social relations. This
is in sharp contrast to customary law which evolved very slowly over the centuries without
radical and abrupt departure from the past. Since each major technical advance in modern
industrial society brings about a change in social relations, it calls form new legal norms,
which is not possible by slow customary growth. Hence, legislation has become the most
important source of law in modern society.

However, as pointed out by the sociological jurists, there were often gaps in the statutory law,
and also the statutory law did not always keep pace with the pace of social development due
to advancement in technology. This required Judge made law to fill in these gaps, in certain
circumstances.

Hence, we can say that modern industrial jurisprudence while mainly positivist, in that it
relies mainly on legislation, also uses the ideas of sociological jurisprudence by
supplementing the legislation wherever there is a legal vacuum or when compelling social
need arises. Also, it sometimes uses some concepts from natural law, e.g. the rules of natural
justice (when there is no statutory rule).

Thus while ancient Indian jurisprudence can be said to belong to the historical school of
jurisprudence, modern jurisprudence is a combination of positivism, sociological
jurisprudence and natural law.

53
 LEGAL SERVICE/AID AND LOK ADALAT
R. Swaroop

Need for introduction of an adequate and comprehensive legal aid/service programme

had been felt for many years and it was increasingly being realized that there could not be
any real equality in criminal cases unless the accused got a fair trial of defending himself
against the charges laid and unless he had competent professional assistance. In Hussainara
Khatoon v. State of Bihar [AIR 1979 SC 1369, 1375], the Supreme Court observed that it
was not possible to reach the benefits of the legal process to the poor, to protect them against
injustice and to secure to them their constitutional and statutory rights unless there was a
nationwide legal service programme to provide free legal services to them. Impressing upon
the Government of India as also the State Governments, the urgent necessity of introducing a
dynamic and comprehensive legal service programme with a view to reaching justice to the
common man, the Supreme Court in Hussainara Khatoon case observed:
“Today, unfortunately, in our country the poor are priced out of the judicial system
with the result that they are losing faith in the capacity of our legal system to bring about
changes in their life conditions and to deliver justice to them. The poor in their contact with
the legal system have always been on the wrong side of the line. They have always come
across „Law for the poor‟ rather than „Law of the poor‟. The law is regarded by them as
something mysterious and forbidding – always taking something away from them and not as
a positive and constructive social device for changing the social economic order and
improving their life conditions by conferring rights and benefits on them. The result is that
the legal system has lost its credibility for the weaker sections of the community. It is,
therefore, necessary that we should inject equal justice into legality and that can be done only
by dynamic and activism scheme of legal services.
We would strongly recommend to the Government of India and the State
Governments that it is high time that a comprehensive legal service programme is introduced
in the country. That is not only a mandate of equal justice implicit in Article 14 and right to
life and liberty conferred by Article 21, but also the compulsion of the Constitutional
Directive embodied in Article 39-A.”
The State cannot, therefore, avoid its constitutional obligation to provide free legal aid
to the accused by pleading financial or administrative inability. The State is under a
Constitutional mandate of equal justice implicit in Article 14 and right to life and liberty
conferred by Article 21, but also the compulsion of the Constitutional Directive embodied in

54
Article 39 A, to ensure fair trial and whatever is necessary for this purpose has to be done by
the State. It is also the constitutional obligation of the Court, as the guardian of the
fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental
right of the accused to fair trial and his right account of indigence or poverty.
There are several reasons why, the right to legal aid or to avail legal services in a
country like India, which is under-developing, democratic republic, wherein, the „Welfare
State‟ doctrine has been adopted, assumes wider significance. There are several reasons,
aspects and facets prevalent in this country, which would prompt to have a very effective,
useful and efficient infrastructure for providing free and competent legal aid in a country like
India, where less than 33 percent of the people know how to write and read sufficiently and
usefully. Majority of the people are poor or indigent and most of them live below the poverty
line, even though poverty line is drawn liberally, and not upon an International Standard. It is
imperative to reach the goal of „equal access to justice,‟ which is a constitutional
commandment and statutory imperative. Legal-aid is not a charity or a chance, but as stated,
it is constitutional mandate to the State and right of public, which is not now an opinion, but a
constitutional obligation and compulsion. As such it is not a pledge or a plan of a
Government, but has assumed, the status of people‟s movement. Somebody has rightly said,
“What is the use of the system, which does not help lowly and lost, poor and downtrodden
and which creates distance between law and justice.” It is in this context, the provisions for
legal services have been made in the Constitution as well as in the Legal Services Authorities
Act, 1987, over and above the provisions made in Section 304 of the Criminal Procedure
Code, 1973.
2. Constitutional Mandate
“The State is under a constitutional mandate to provide free legal aid to an accused
person who is unable to secure legal services on account of indigence and whatever is
necessary for this purpose has to be done by the State. The State may have its financial
constraints and its priorities in expenditure but, as pointed out by the Court in Rhem v.
Malcolm [377 F. Supp. 995]: “the law does not permit any Government to deprive its citizens
of constitutional rights on a plan of poverty” and to quote the words of Justice Black mum in
Jackson v. Bishop [404 F Supp 2d, 571]: “human considerations and constitutional
requirements are not in this day to be measured by dollar considerations” (Khatri v. State of
Bihar, AIR 1981 SC 928, 930).
The Founding Fathers of the Constitution of India have right from the Preamble, taken
a positive approach of doctrine of philosophy of Equal Justice which becomes apparent on

55
the plain perusal of the preamble of the Constitution. The preamble promise is further
strengthened by the constitutional provisions in Articles 14, 19, 21, 22(1), 32, 39-A, 51-A and
226 of the Constitution of India. Article 22(1) of the Constitution, expressly provides that,
“No person, who is arrested, shall be detained in custody, without being informed, as soon as
may be, of the grounds for such arrest, nor shall he be denied of the right to consult and to be
defended by a legal practitioner of his choice.”
Long before the Constitution, even in the Old Criminal Procedure Code, under
Section 340(1), it had been provided that:
“Any person, accused of an offence before the Criminal Court or against whom
proceedings are instituted, under this Code, or any such Code, may of right, be defended by a
pleader.”
Free legal services an essential element of fair procedure: When under Article 21 of
the Constitution of India, no person can be deprived of his life or personal liberty except
according to the procedure established by law, it is not enough that there should be some
semblance of procedure provided by law but the procedure under which a person may be
deprived of his life or liberty should be „reasonable‟, fair and just [Maneka Gandhi v. Union
of India, AIR 1978 SC 597]. Now, a procedure which does not make legal services available
to an accused person who is too poor to afford a lawyer and who would, therefore, have to go
through the trial without legal assistance, cannot possibly be regarded as „reasonable, fair and
just.‟ It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to
seek his liberation through the court‟s process that he should have legal services available to
him.
Insertion of Article 39A providing for equal justice and free legal aid -As a
principle of policy to be followed by the State: The Constitution (Forty-second Amendment)
Act, 1976 has inserted Article 39-A as a Directive Principle of State Policy. This Article
stipulates that –
“39-A. Equal justice and free legal aid – The State shall secure that the operation of
the legal system promotes justice, on the basis of equal opportunity and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities” [Enforced w.e.f. 3.1.1977].
This article (Article 39-A) also emphasises that free legal service is an inalienable
element of „reasonable, fair and just‟ procedure for without it a person suffering from
economic or other disabilities would be deprived of the opportunity for securing justice. The

56
right to free legal service is, therefore, clearly an essential ingredient of „reasonable, fair and
just‟ procedure for a person accused of an offence and it must be held implicit in the
guarantee of Article 21. This is a constitutional right of every accused person who is unable
to engage a lawyer and secure legal services on account of reasons such as poverty, indigence
or incommunicado situation and the State is under a mandate to provide a lawyer to an
accused person if the circumstances of the case and the needs of Justice so require, provided
of course the accused person does not object to the provision of such lawyer.
“It is [legal assistance to poor or indigent accused] necessary sine qua non of justice
and where it is not provided, injustice is likely to result and undeniably every act of injustice
corrodes the foundations of democracy and rules of law, because nothing rankles more in the
human heart than a feeling of injustice and those who suffer and cannot get justice because
they are priced out of the legal system, lose faith in the legal process and a feeling begins to
overtake them that democracy and rule of law are merely slogans or myths intended to
perpetuate the domination of the rich and the powerful and to protect the establishment and
the vested interests...”
In Khatri v. State of Bihar [AIR 1981 SC 928] the Court went a step further and held
that the constitutional obligation of the State to provide free legal service to an indigent
accused extends not only at the stage of trial but also at the stage when he is first produced
before the Magistrate. However, in Suk Das v. Union Territory of Arunachal Pradesh [AIR
1986 SC 991, 993] the Supreme Court, further observed that, “of course, it must be
recognized that there may be cases involving offences, such as, economic offences or
offences against law prohibiting prostitution or child abuse and the like, where social Justice
may require that legal service may not be provided by the State.
Exercise of this fundamental right whether conditional upon the accused applying for
free legal assistance: In Sukh Das v. Union Territory of Arunachal Pradesh, the Supreme
Court while interpreting legal aid as a fundamental right which the state is constitutionally
obliged to provide to every indigent accused in criminal proceedings, dealt with the question
whether this fundamental right could lawfully be denied to the accused if they did not apply
for free legal aid.
The Court has observed:
“But the question is whether this fundamental right could lawfully be denied to the appellants
if they did not apply for legal aid. Is the exercise of this fundamental right conditional upon
the accused applying for free legal assistance so that if he does not make an application for
free legal assistance the trial may lawfully proceed without adequate legal representation

57
being afforded to him? Now, it is common knowledge that about 70% of the people living in
rural areas are illiterate and even more than that percentage of the people are not aware of the
rights conferred upon them by law. Even literate people do not know what are their rights and
entitlements under the law. It is this absence of legal awareness which is responsible for the
deception, exploitation and deprivation of rights and benefits from which the poor suffer in
this land. Their legal needs always stand to become crisis oriented because their ignorance
prevents them from anticipating legal troubles and approaching a lawyer for consultation and
advice in time and their poverty magnifies the impact of the legal troubles and difficulties
when they come. Moreover, because of their ignorance and illiteracy, they cannot become
self-reliant; they cannot even help themselves. The law ceases to be their protector because
they do not know that they are entitled to the protection of law and they can avail of the legal
service programme for putting an end to their exploitation and winning their rights. The result
is that poverty becomes with them a condition of total helplessness. This miserable condition
in which the poor find themselves can be alleviated to some extent by creating legal
awareness amongst the poor. That is why it has always been recognized as one of the
principal items of the programme of the legal aid movement in the country to promote legal
literacy. It would in these circumstances make a mockery of legal aid if it were to be left to a
poor, ignorant and illiterate accused to ask for free legal service. Legal aid would become
merely a paper promise and it would fail its purpose. This is the reason why in Khatri v. State
of Bihar [AIR 1981 SC 928] we ruled that the Magistrate or the Sessions Judge before whom
an accused appears must be held to be under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to
obtain free legal services at the cost of the State...” [Refer also to State of Kerala v. Kuttan,
1988 Cri LJ 453].
In Khatri v. State of Bihar, the Supreme Court has held thus:-
“But even this right to free legal services would be illusory for an indigent accused unless the
magistrate or the Sessions Judge before whom he is produced informs him of such right. It is
the common knowledge that about 70 per cent of the people in the rural areas are illiterate
and even more than that percentage of people are not aware of the rights conferred upon them
by law. There is so much lack of legal awareness that it has always been recognized as one of
the principal items of the programme of the legal aid movement in this country to promote
legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and
illiterate accused to ask for free legal services. Legal aid would become merely a paper
promise and it would fail in its purpose. The Magistrate or the Sessions Judge before whom

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the accused appears must be held to be under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to
obtain free legal services at the cost of the State. Unfortunately the judicial Magistrate failed
to discharge this obligation in the case of the blinded prisoners and they merely stated that no
legal representation was asked for by the blinded prisoners and hence none was provided.”
The Supreme Court in that case directed the magistrates and Sessions judges in the
country- “We would, therefore, direct the magistrates and Sessions judges in the country to
inform every accused who appears before them and who is not represented by a lawyer on
account of his poverty or indigence that he is entitled to free legal services at the cost of the
State. Unless he is not willing to take advantage of the free legal services provided by the
State, he must be provided legal representation at the cost of the State.”
The Supreme Court also directed the State of Bihar and required every other State in
the country-
“[T]o make provision for grant of free legal services to an accused who is unable to engage a
lawyer on account of reasons such as poverty, indigence or incommunicado situation. The
only qualification would be that the offence charged against the accused is such that, on
conviction, it would result in a sentence of imprisonment and is of such a nature that the
circumstances of the case and the needs of social justice require that he should be given free
legal representation. There may be cases involving offences such as economic offences or
offences against law prohibiting prostitution or child abuse and the like, where social Justice
may require that free legal services need not be provided by the State.”
Reports of Law Commission of India
Though even in the old Criminal Procedure Code, under Section 340 (1), it had been
provided that: “Any person accused of an offence before the Criminal Court or against whom
proceedings are instituted, under this Code, or under any such Code, may of right, be
defended by a pleader.” [Section 303 of the new Code corresponds to the said section, with
the addition of the words „of his choice‟ at the end]. The emphasis being on “any person
accused of an offence in a criminal case is entitled to be defended, as of right, by an
Advocate”, this right under the said section did not make it obligatory on the part of the Court
in a Sessions case, to assign a pleader for the defence of the accused at the expenses of the
State. However, many High Courts issued circulars and orders, and incorporated rules in the
Criminal Rules of Practice providing for assignment of an advocate for the defence of an
accused in Session trials and other cases of serious nature in consonance with the
Constitutional mandate and fundamental human rights.

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 Right to be provided with a lawyer by the State: For the first time it was in the year
1958, the Law Commission of India in its Fourteenth Report Volume I on the subject
“Reform of Judicial Administration” made certain recommendations for State legal aid and
emphasized for right to assignment of counsel at government expense. It observed, - “Unless
some provision is made for assisting the poor man for the payment of court-fees and lawyer‟s
fees and other incidental costs of litigation, he/she is denied equality in the opportunity to
seek justice.” (p.487). Again in 1969 the 41st Law Commission Report, the Law Commission
strongly recommended that representation by a lawyer should be made available at
Government expenses to accused persons in all cases tried by a Court of Sessions (Vol.1,
paras 24, 34-38). The Law Commission in its Forty Eighth Report also suggested for making
provision for free legal assistance by the State for all accused who were undefended by a
lawyer for want of means.
Recommendation codified in Section 30: This recommendation has now been
codified in sub-section (1) of Section 304 of the Code of Criminal Procedure, with this
change made by the Joint Committee, that the State aid will be available only where the
accused “has not sufficient means to engage a pleader”. Section 304 reads,-
“304. Legal aid to accused at State expenses in certain cases -
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the Court that the accused has not sufficient means to engage a
pleader, the Court shall assign a pleader for his defence at the expense of the State.
(2) The High Court may, with the previous approval of the State Government, make rules
providing for
(a) the mode of selecting pleaders for defence under sub-section (1);
(b) the facilities to be allowed to such pleaders by the courts;
(c) the fees payable to such pleaders by the government, and generally, for
carrying out the purposes of sub-section (1).
(3) The State Government may, by notification, direct that, as from such date as may be
specified in the notification, the provisions of sub-section (1) and (2) shall apply in relation to
any class of trials before other Courts in the State as they apply in relation to trials before
Courts of Sessions.”
The section provides that when in the trial and more so in trials before the Court of
Sessions, the accused is not represented by a pleader or an Advocate and when it appears to
the Court that the accused has not sufficient means to engage an Advocate, the Court shall
assign a pleader or an Advocate for his defence at the expense of the State. Under Section

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304(3), the State Government, may, by notification, direct that the provisions of sub-section
(1) will apply to any class of trials before other Courts in the State.
A bare reading of the provisions under Section 304 of the Criminal Procedure Code
make it crystal clear that in a criminal trial, the Magistrate or the Sessions Court before whom
the accused appears must be held to be under an obligation to inform the accused that if he is
unable to engage the services of a lawyer on account of poverty or indigence or any other
disability, he is entitled to free legal services, at the cost of the State. It is, therefore,
imperative for a Presiding Officer, in charge of a trial to inform every accused, who appears
before him and who is not represented by a private lawyer on account of the poverty,
ignorance or by any disability that he is entitled to free legal services, at the cost of the State.
While, it is settled position of law that to provide legal aid to accused persons without means
in all cases tried by a Court of Session, is a mandatory constitutional necessity, it is further
necessary that such lawyer should be of competence. Such counsel appointed for the accused
must be given the complete brief of the case and time to prepare the case. Failure to this is a
denial of proper representation of the accused and vitiates the trial. [Raj Kishore v. State,
1969 Cri LJ 860 (Cal): AIR 1969 Cal 321]. Also, no counsel can be thrust upon the accused
without ascertaining the wishes of the accused and without giving him any choice in selecting
his lawyer as Article 22(1) of the Constitution guarantees that choice to be accused.
Committee for Implementing Legal Aid Scheme (CILAS)
Concerned with the programme of legal aid as it is the implementation of a constitutional
mandate, in September, 1980, the Government of India, with the object of providing free
legal aid, by a resolution dated 26th September, 1980, appointed “Committee for
Implementing Legal Aid Schemes” (CILAS) with P.N. Bhagwati J (as he then was) as the
Chairman to monitor and implement legal aid programs on a uniform basis in all the States
and union territories. The Committee evolved a model scheme for legal aid programme,
[which includes organization of legal aid camps] and set up several legal aid and advice
boards throughout the country.
But on a review of the working of the CILAS, certain deficiencies had come to the
fore. It was, therefore, felt that it would be desirable to constitute statutory legal service
authorities at the national, State and District levels so as to provide for the effective
monitoring of legal aid programmes. Therefore, the Legal Services Authorities act, 1987 (Act
No.39 of 1987) was enacted with a view to constitute Legal Services Authorities at National,
State and District Levels. However, the Act not having been brought into force (The Act was
brought into force with effect from 9-11-1995, almost eight years after its enactment) the

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term of Committee was extended again for a period of one year on and from the 14th May,
1990 or till the National Legal Service Authority was constituted under the Legal Services
Authorities Act, whichever was earlier.
Constitution of Legal Aid Boards and Committees:
Many states evolved their own programmes and even enacted State Legislation or
promulgated certain schemes or Rules to provide Legal Aid to under privileged and
disadvantaged sections of the society. For effective implementation and to achieve the
desired objective of providing Free Legal Aid and Advice to the poor, State Boards, District
Legal Aid Committees and Taluka Committees were constituted. But it was felt that
enactment of a Central Legislation to co-ordinate and promote the activities of the various
States in providing Legal Aid and Advice to the poor was desirable to monitor and implement
legal aid programmes on a uniform basis in all the States and union territories.
Need for Strategic Legal Aid Programme
It is now acknowledged throughout the country that the legal aid programme which is
needed for the purpose of reaching social justice, to the people cannot afford to remain
confined to the traditional or litigation oriented legal aid programme but it must, taking into
account the socioeconomic conditions prevailing in the country, adopt a more dynamic
posture and take within its sweep what we may call strategic legal aid programme consisting
of promotion of legal literacy, organization of legal aid camps, encouragement of public
interest litigation and holding of lok adalats or niti melas for bringing about settlements of
disputes whether pending in Courts or outside. [Center of Legal Research v. State of Kerala,
AIR 1986 SC 2195]. As observed by Justice Bhagawati “....what is necessary is to
supplement the traditional legal service programme with strategic legal service programme.
The strategic legal service programme aims at prevention and elimination of various kinds of
injustices which the poor as a class suffer because of poverty and endeavours to launch a
frontal attack on the poverty itself with the ultimate goal of its eradication from the society. It
does not involve merely quantitative extension of traditional legal services to the poor but
instead requires a qualitative and radical change in the whole emphasis, aims and functioning
of the legal service programme. It involves novel, radical, more dynamic and multi-
dimensional uses of law and the legal process and seeks to provide representation to groups
of social and economic protest. It does not regard litigation as playing an important or even
significant role in the life of the poor and hence refuses to consider the court as a centre of all
legal activity and is concerned with the problems of the poor as a class rather than with the
individual problems of the poor which may be projected in litigation in court. The strategic

62
legal service programme is thus directed towards group-oriented approach to the problem of
poverty rather than individual-oriented treatment and basically it is calculated to make the
poor as class conscious and powerful, self-reliant and capable of using law as a potent
weapon for various purposes.....”
A common man has started feeling that justice itself is on trial. It is, therefore,
imperative to evolve effective and efficient strategies both preventive and protective:
(1) To manage: Unmanageable; (2) To break: Unbreakable; (3) To beat: Unbeatable; (4) To
hit: Unhitable; (5) To defend: Indefensible.
Looking to the present situation in the country, we are obliged to create and constitute
a Neo-Jurisprudence, a public-oriented participation performing, progressive, professional
and pervasive programmes. Unfortunately, in the present system, the litigant, who is the heart
of judicial anatomy, is the most neglected segment. He is the consumer of justice and he
should be respected. The litigant-consumer of justice – and heart of our system – must
receive equal, effective, inexpensive and speedy trial and justice.
In our country, amount spent or expenditure for administration of law and justice is
reported 0.2 percent of the Gross Domestic Product (G.D.P.) which is grossly inadequate and
insufficient in a democratic set up. It is, therefore, necessary to constitute a regular
mechanism, whereby, we can take and evaluate Judicial Cardiogram for necessary urgent and
useful, effective and ebullient reforms to translate Constitutional mandate and obligation
propounded right from Preamble Promise in their fighting faith by its Founding Fathers, a
reality.
Legal literacy: Legal literacy is a pre-condition to maintain the “rule of law”. As
observed by Justice Bhagwati, the strategic legal service consists of creating legal awareness
or what may be described as promoting legal literacy, for knowledge of their rights and
entitlement would give to the poor strength and confidence to fight and help them to avoid
needless difficulties which arise from ignorance. Legal aid camps can also be arranged as part
of the strategic legal service rogramme for carrying legal services to the doorsteps of the rural
poor. (Quoted in “Equal Justice and Forensic Process: Truth and Myth” by V.R. Krishna
Iyer, at p.47). The model scheme for Legal Aid evolved by the “Committee for Implementing
Legal Aid Scheme (CILAS)” also included programme for promotion of legal literacy and
spread of legal awareness among the weaker sections of the community by way of organizing
legal Aid camps, especially in rural areas, slums or labour colonies. Voluntary organizations,
social action groups, journalists and even advocates have been rendering significant service
to educate the people about the laws, their rights and benefits flowing out of the various

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schemes and measures. The assistance of voluntary agencies and social action groups must
therefore be taken by the State for the purpose of operating the legal aid programme in its
widest and most comprehensive sense, and this is an obligation which flows directly from
Article 39 A of the Constitution.
Public Interest Litigation
Public Interest Litigation has been devised as a tool to secure benefit to a class or group of
persons, either victims of exploitation, or oppression or who are denied the constitutional
rights but cannot come to court personally for relief by reason of ignorance, poverty,
destitution, helplessness, disability or social or economic disadvantage. It is a form of
litigation where jurisdiction of the Court is invoked on behalf of such persons or group of
persons by a third person or a social action group or a social organization regardless of its
personal injury. Cases of this kind involve the rights of thousands of people at a time, unlike
traditional litigation, which are basically of adversary character and concerns disputes
between individuals. Whenever such litigations have come to Court, the Courts in the country
have done everything to help the poor and to break every procedural barrier to deliver justice
to the poor. To quote Krishna Iyer, “Moulding the remedies to suit the needs of the situation
so that efficacious and comprehensive remedies may be granted, regardless of pickled
precedents in remedial methodology, is part of judicial dynamics.”
Public interest litigation which is a strategic arm of the legal aid movement and which
is intended to bring justice within the reach of the poor masses, who constitute the low
visibility area of humanity, is a totally different kind of litigation from the ordinary traditional
litigation which is essentially of an adversary character where there is a dispute between two
litigating parties, one making claim or resisting such relief. Public interest litigation is
brought before the court not for the purpose of enforcing the right of one individual against
another as happens in the case of ordinary litigation, but it is intended to promote and
vindicate public interest which demands that violation of constitutional or legal rights of large
number of people who are poor, ignorant or in a socially or economically disadvantaged
position should not go unnoticed and unredressed. That would be destructive of the Rule of
Law, which forms one of the essential elements of public interest in any democratic form of
government. The Rule of Law does not mean that the protection of the law must be available
only to a fortunate few or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise of enforcement of their
civil and political rights. The poor too have civil and political rights and the Rule of Law

64
meant for them also, though today it exists only on paper and not in reality. [People’s Union
for Democratic Rights v. Union of India, AIR 1982 SC 1473].
Public interest litigation is essentially a co-operative or collaborative effort on the part
of the petitioner, the State or public authority and the court to secure observance of the
constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections
of the community and to reach social justice to them. So far the courts have been used only
for the purpose of vindicating the rights of the wealthy and the affluent. It is only these
privileged classes which have been able to approach the courts for protecting their vested
interests. It is only the moneyed who have so far had the golden key to unlock the doors of
justice. But, now for the first time the portals of the court are being thrown open to the poor
and the downtrodden, the ignorant and the illiterate and their cases are coming before the
Courts through public interest litigation which has been made possible by the recent
judgment delivered by the Supreme Court in S.P. Gupta v. President of India, AIR 1982 SC
149 [Judges Appointment and Transfer case].
The Legal Aid movement and public interest litigation seek to bring justice to these
forgotten specimens of humanity who constitute the bulk of the citizens of India and who are
really and truly the “people of India” who gave to themselves this magnificent Constitution.
It is true that there are large arrears pending in the Courts but that cannot be any reason for
denying access to justice to the poor and weaker sections of the community. No State has a
right to tell its citizens that because a large number of cases of the rich and the well to do are
pending in our Courts, we will not help the poor to come to the Courts for seeking justice
until the staggering load of cases of people who can afford, is disposed of. The time has now
come when the Courts must become the courts for the poor and struggling masses of the
country. They must shed their character as upholders of established order and the status quo.
They must be sensitized to the need of doing justice to the large masses of people to whom
justice has been denied by a cruel and heartless society for generations. The realization must
come to them that social justice is the signature tune of our Constitution, and it is their
solemn duty under the Constitution to enforce the basic human rights of the poor and
vulnerable sections of the community and actively help in the realization of the constitutional
goals. This new change has to come if the judicial system is to become an effective
instrument of social justice, for without it, it cannot survive for long. Fortunately, this change
is gradually taking place and public interest litigation is playing a large part in bringing about
this change. It is through public interest litigation that the problems of the poor are now
coming to the forefront and the entire theatre of the law is changing. It holds our great

65
possibilities for the future. In M.C. Mehta v. Union of India [AIR 1987 SC 1086], a
constitutional Bench of the Apex Court while considering the scope of public interest
litigation to grant compensation to the victims of hazardous or dangerous activities when
deaths or injuries were caused to them on account of the accident during the operation of such
activities, has held that the law should keep pace with changing socio-economic norms;
where a law of the past does ot fit in the present context, the Court should evolve new law in
a public interest litigation. The Court has incidental and ancillary powers in exercise of which
it can devise new methods and strategy in securing enforcement of fundamental rights
particularly in public interest litigation or social action cases.
In Bandhua Mukti Morcha v. Union of India [AIR 1984 SC 802, 815], the Supreme
Court held that when the poor come before the Court, particularly for enforcement of their
fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a
new procedure which will make it possible for the poor and the weak to bring the necessary
material before the Court for the purpose of securing enforcement of their fundamental rights.
The Supreme Court further observed:
“It must be remembered that the problems of the poor which are now coming before
the Court are qualitatively different from those which have hitherto occupied the attention of
the Court and they need a different kind of lawyering skill and different kind of judicial
approach. If we blindly follow the adversarial procedure in their case, they would never be
able to enforce their fundamental rights and the result would be nothing but a mockery of the
Constitution. We therefore to abandon the laissez faire [Let things be] approach in the
judicial process particularly where it involves a question of enforcement of fundamental
rights and forge new tools, devise new methods and adopt new strategies for the purpose of
making fundamental rights meaningful for the large masses of the people. And this is clearly
made permissible by the language of clause (2) of Article 32 because the Constitution-makers
while enacting that clause have deliberately and advisedly not used any words restricting the
power of the Court to adopt any procedure which it considers appropriate in the
circumstances of a given case for enforcing the fundamental right. It is true that the adoption
of this non-traditional approach is not likely to find easy acceptance from the generality of
lawyers because their minds are conditioned by constant association with the existing system
of administration of justice which has become ingrained in them as a result of long years of
familiarity and experience and become part of their mental make-up and habit and they would
therefore always have an unconscious predilection for the prevailing system of administration
of justice. But if we want the fundamental rights to become a living reality and the Supreme

66
Court to become a real sentinel on the qui vive, we must free ourselves from the shackles of
outdated and outmoded assumptions and bring to bear on the subject fresh outlook and
original unconventional thinking.”
The traditional rule of locus standi considerably relaxed by the Supreme Court
The traditional rule in regard to ‘locus standi’ that judicial redress is available only to a
person who has suffered a legal injury by reason of violation of his legal rights- by some
agency or individual has now been considerably relaxed by the Supreme Court. In S.P. Gupta
v. President of India [AIR 1982 SC 149, 188], the Supreme Court speaking through
Bhagwati, J. has held:
“It may, therefore, now be taken as well established that where a legal wrong or legal
injury is caused to a person or to a determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in contravention of any constitutional or
legal provision or without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is by reason of poverty,
helplessness, or disability or socially or economically disadvantaged position, unable to
approach the Court for relief, any member of the public can maintain an application for an
appropriate direction, order or writ in the High Court under Article 226 and in case of breach
of any fundamental rights of such person or persons, in this Court [Supreme Court] under
Article 32 seeking judicial redress for the legal wrong or injury caused to such person or
determinate class of persons....”
THE INSTITUTION OF LOK ADALAT
Lok Adalats or Niti Melas
Lok Adalat has emerged lately as a new system of dispensation of justice and received
tremendous response and wide support from different sections of the society. The system
visualized as an alternative dispute settlement mechanism, evolved as a part of the CILAS
programme with the object of taking justice to the doorsteps of the poor and to give speedy
and cheap justice to those who cannot afford to fight the costly legal battle. Lok Adalat has
come to be seen as an institution or an agency, for handling disputes by conciliation and
counseling, a species of peace making. Lok Adalats do not treat the issues before it as
disputes under contest and decide cases, but treat them as differences and resolve them by
conciliatory and persuasive efforts. The process involves discussing with the parties the pros
and cons of their case and explaining to them advantages and disadvantage of resolving their
dispute by conciliation and compromise, or in the alternative, of resorting to the traditional
dilatory procedure of adversarial litigation in regular Courts. The process of participatory

67
justice is a unique feature of this institution. Dispute in the Lok Adalats is resolved by
discussion in an informal atmosphere, in which parties and panel members of the Lok Adalat
participate, and settlement is reached with the mutual and free consent of the parties. Unlike
in litigations concluded in our regular Courts, being in the nature of compromises, there is no
winner and no loser in a mediated resolution of dispute by Lok Adalats. The intention being
to help warring parties to work things out, shake hands, and become friends (or not enemies
again), resolution of disputes in Lok Adalat, is more likely to bring or keep people together
and, therefore, more conducive to harmonies. There has been in the last few years a growing
interest in the institution and it has emerged as a forum for alternative dispute resolution, to
supplement the existing justice delivery system. These forums based on the concept of
dispute settlement mechanism by way of counseling persuasion and conciliation, function as
peacemaker, and are intended to work informally with simplified procedure.
As part of CILAS programme, lok adalats (Peoples‟ Court) were constituted and niti
melas were organized at various places in the country, under the supervision of State Legal
Aid and Advice Boards, for the disposal, in a summary way and through the process of
arbitration and settlement between the parties, of a large number of cases expeditiously and
with lessor costs.
The organizers of the Lok Adalats, fixed the date and place of the holding of Lok
Adalats about a month in advance. Information about the holding of Lok Adalat was widely
publicized through press and other means of publicity. Presiding Officers of various Courts
were requested to look into the cases pending in their respective Courts and to see whether
there was possibility of conciliation in these cases. Such of those cases where there was
reasonable possibility of conciliation were identified and listed. Cases were analyzed,
classified under various heads according to the nature of dispute and substance recorded.
Then, pre-Lok Adalat conferences were held and parties to the dispute were approached and
motivated by the legal aid teams, which included, law students, social workers and volunteers
to resolve their disputes through Lok Adalats. Before the case was taken up by the Lok
Adalat, the mediation process or justice process through Lok Adalat was initiated by way of
thorough discussion with the parties as to the details of the case and desirability of
conciliation and compromise and the scope of a settlement mutually acceptable to the parties
was assessed. The team involved in the mediation or Lok Adalat justice process, consisted of
the members of local Legal Aid Committee, advocates, spirited public men or elders of the
locality or social activists and called conciliators. This process was continued and resumed at
the campsite of the Lok Adalat. Once parties had made a compromise or arrived at a

68
settlement, it was reduced into writing by members of the panel of the Lok Adalat, signatures
of the parties were obtained and countersigned by the members of the panel and passed on to
the Court concerned for final decree or order. Multiple panels, according to the need of the
Lok Adalat, were set up. These panels or members of Lok Adalat consisted of two or three
persons, one of them could be a retired judge or a senior retired civil servant or an advocate, a
law teacher, and others, social workers and eminent persons of the locality, carefully chosen
by the Local Aid Committees on the basis of their record of public services, honesty and
respectability among local population, supposed to be good conciliators, concerned with the
cause of social justice and sympathetic to people‟s problem. When the compromise so arrived
at was presented before the Court concerned, the Court was expected to look into the question
whether all the parties to the suit were entering into settlement or compromise, examine the
fairness and legality of the settlement or compromise, and satisfy itself that compromise had
been arrived at by free and mutual consent of the parties. After this process of due
verification of the compromise made or settlement arrived at by the parties, decree or orders
were passed in terms of the settlement or compromise.
Importance of the institution of Lok Adalat in the present context: The
revolutionary evolution of resolution of dispute by one or other means, Alternate Dispute
Redressal (A.D.R.) mechanism, has been, successfully, translated in various countries. While,
in India, roughly, 91 percent of cases instituted in the Courts go for trial and only 9 percent of
cases are settled without judicial agitation, in U.S. A., more than 90 percent of cases
involving legal disputes are settled before they go for trial.
The institution of Lok Adalat has been acknowledged as an effective Alternate
Dispute Redressal agency and gaining wide acceptability. More and more people are
choosing this forum to help settlement of dispute through negotiation, counseling,
conciliation, settlement and compromise than to go for a verdict through court. It provides a
quicker remedy, it is less expensive, less time consuming, does not permit dilatory tactics of
parties to prolong litigation. It saves parties from intricacies of procedure and is concerned
more with narrowing the differences and finding settlement in accordance with natural
justice, rules of equity and other legal principles than with expatiating upon procedural
complexities and their strict application. It is based on jurisprudence of peace and provides a
rendezvous for social amity and affinity and social justice. It aims at promoting larger
interest, harmony, comity and policy and jurisprudential cohesion and environment. Looking
to the present situation in the country the role of Lok Adalat assumes higher degree of
importance.

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 It is reported that 34 percent of the total world‟s poor populace is in India. More than
majority persons live below poverty line. Most of the rural people in India who reside in
more than 5,18,000 villages are either, illiterate, indigent or ignorant of their rights. Even in
case of urban populace most of them are ignorant about their legal rights, who are otherwise,
literate. The urbanized populace lack awareness about their legal rights. Our present
traditional system of justice is suffering from maladies like huge and heavy expenses;
unexpected and unpredictable delay in disposal and, cumbersome and complex process of
Court. In view of the failure to provide easy, cheap and expeditious accessibility, mental
barrier is developed amongst many persons to suffer injustice. As a result of which, a
common man has started looking at it, as foe rather than a friend. The life span of a civil case
or a lawsuit in civil side is ranging average, between 8 to 12 years. Who knows even after a
successful decision or order in favour of a party, whether he would be able to see light at the
end of tunnel after having passed through the long legal and procedural conduit pipes? Even
after a decree awarded or order passed on judicial side in favour of a party, after number of
years, successful party has to again undergo the second round of litigation at the stage of
execution. It is not a Pity v. Duty? Pending workload of cases in Indian Courts has rapidly
crossed the 30 millions as per latest survey, and many more are under inquiry or investigation
stage, etc. The ratio of Judges per million in India is almost 9, whereas, it is more than 115 in
U.S.A. In case of ratio of Advocate available in India, is far less than developed countries.
There are about only 4,50,000 and odd number of Advocates in India, which has populace of
1 billion. In view of these circumstances, the institution of Lok Adalat is being looked upon
as an effective Alternate Dispute Redressal Forum, which has proved to be dialectical and
speedy. By bringing justice at their doorstep, it gets the poor litigants justice without having
to meet huge costs and help them to settle their disputes amicable. It creates not only peace
but also a culture of compromise. It provides a rendezvous for social amity and affinity and
social justice. [Cf. Dineshbhai Dhemenrai v. State of Gujarat, 2001 (1) GLR 603].
Legal status for Lok Adalat: The Lok Adalat, a specie of conciliatory agency, proved
to be very popular in providing for a speedier system of administration of justice at lessor
costs. The success of these Lok Adalats in taking justice to the doorsteps of poor and the
needy and making justice quicker and less expensive raised a new ray of hope for those who
could not otherwise afford to fight the protracted costly legal battle for assertion and
protection of their rights under the law.
The institution received wide support from concerned citizens and spread to disputes
of diverse and varied nature and resolved cases pertaining to compoundable criminal

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complaints, civil and revenue disputes, MACT cases, and even institutional cases (cases
where one of the parties is an institution, such as, municipality or a corporation). The number
of cases resolved by these Lok Adalats also began to reflect on the workload of our regular
Courts. The institution of Lok Adalats was, however, functioning as a voluntary agency
without any statutory backing for its decisions. In view of its growing popularity, there was
demand for providing a statutory backing support would not only reduce the burden of arrears
of work in regular courts, but would also provide social justice and serve to achieve the
constitutional mandate under Article 39 A. The Government was convinced that this
admirable alternate dispute settlement mechanism shall now only reduce the burden of arrears
of work in regular courts, but would also take justice to the doorsteps of the poor and the
needy and make justice quicker and less expensive and felt that if the Lok Adalats were given
statutory status they could function more effectively. Therefore, the Government in exercise
of its duty under Article 39 A, drafted the Legal Services Authorities Bill 1987 and the same
was enacted by the Parliament as Act No. 39 of 1987, acknowledging the institution of Lok
Adalat and giving statutory status to Lok Adalats. However, the Act was brought into force
with effect from 9-11-1995, almost eight years after its enactment.
Public Participation in Legal Aid Programme
Role of Voluntary Organizations and Social Action Groups: In Centre of Legal Research v.
State of Kerala, AIR 1986 SC 2195, the Supreme Court held that there could be no doubt that
if the legal aid programme was to succeed it must involve public participation. The Court
observed:-
“The State Government undoubtedly has an obligation under Article 39A of the
Constitution which embodies a directive principle of State Policy, to set up a comprehensive
and effective legal aid programme in order to ensure that the operation of the legal system
promotes justice on the basis of equality. But we have no doubt that despite the sense of
social commitment which animates many of our officers in the Administration. It is
absolutely essential that people should be involved in the legal aid programme because the
legal aid programme is not charity or bounty but it is a social entitlement of the people and
those in need of legal assistance cannot be looked upon as mere beneficiaries of the legal aid
programme but they should be regarded as participants in it.”
Emphasizing the importance of role that could be played by voluntary organizations
and social action groups in securing people‟s participation and involvement in the legal aid
programme, the Supreme Court went on to observe :-

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 “If we want to secure people‟s participation and involvement in the legal aid
programme, we think the best way of securing it is to operate through voluntary organizations
and social action groups. These organizations are working amongst the deprived and
vulnerable sections of the community at the grass-root level and they know what are the
problems and difficulties encountered by these neglected sections of the Indian humanity.
They have their finger on the pulse of the people and they know from their own experience as
to what are the unmet legal needs of the people, what are the sources of exploitation and
injustice to the underprivileged segments of society and what measures are necessary to be
taken for the purpose of ending such exploitation and injustice and voluntary organizations
and social action groups must be encouraged and supported by the State in operating the legal
aid programme. It is now acknowledged throughout the country that the legal aid programme
which is needed for the purpose of reaching social justice to the people cannot afford to
remain confined to the traditional or litigation oriented legal aid programme but it must,
taking into account the socio-economic conditions prevailing in the country, adopt a more
dynamic posture and take within its sweep what we may call strategic legal aid programme
consisting of promotion of legal literacy, organization of legal aid camps, encouragement of
public interest litigation and holding of Lok Adalats or niti melas for bringing about
settlements of disputes whether pending in Courts or outside. The assistance of voluntary
agencies and social action groups must therefore be taken by the State for the purpose of
operating the legal aid programme in its widest and most comprehensive sense, and this is an
obligation which flows directly from Article 39A of the Constitution.”

Role of the Bench and the Bar: In various countries, particularly, in United States and other
Western countries, the contribution of the Bar in rendering free and competent legal-aid is
praiseworthy and it must be emulated. Legal Aid fraternity must respond with juristic
sensitivity to the voice from the silence zone (a class of litigants) and mass voice of weak,
meek, poor, suppressed and exploited women and destitute children so as to create evolving
ebullient echo for the silent sector. The Bar must evolve scheme to ensure that unprotected is
not priced out of Market. The Bar is, really, a backbone of the legal services to compliment
and complete the Constitutional obligation and obtain statutory rights of millions of indigent,
needy, handicapped and deserving people.
To save the Nation, a catalytic role has to be played by Legal Aid in the larger interest
of weaker sections. N.A.L.S.A. has undertaken various important and effective and
appreciable Legal-Aid programmes and, therefore, members of Bench and Bar, N.G.Os. and

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Government Agencies must render voluntary helping hand in such noble and novel projects.
[See Dineshbhai Dhemenrai v. State of Gujarat, 2001 (1) GLR 603].

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