INDIA'S LEGAL SYSTEM Can It Be Saved? PDF
Preview INDIA'S LEGAL SYSTEM Can It Be Saved?
INDIA'S LEGAL SYSTEM Can It Be Saved? FALI S. NARIMAN REVISED AND UPDATED PENGUIN BOOKS INDIA'S ILEGAL SYSTEM . Fali S. Nariman is a leading constitutional expert, practising Supreme Court lawyer andPresidentEmeritus of the Bar Association of India. His other books include Before Memory Fades:An Autobiography and The State of the Nation: In Context of India's Constitution. Nariman is the recipient of the Padma Bhushan (1991), the Gruber Prize for Justice (2002) and the Padma Vibhushan (2007). INDIA'S LEGAL SYSTEM Can It Be Saved? FALI S. NARIMAN REVISED AND UPDATED ..* PENGUIN BOOKS An imprint of Penguin Random House PENGUINBOOKS USA Canada UK| Ireland|Australia New Zealand|India South Africa |China Penguin Books is part of the Penguin Random House group of companies whose addresses can be found at global.penguinrandomhouse.com Published by Penguin Random House India Pvt. Ltd 7th Floor, Infinity Tower C, DLF Cyber City, Gurgaon 122 002, Haryana, ndia Penguin RandomnHouse India First published by Penguin Books India 2006 This revised and updated edition published by Penguin Random House India 2017 Copyright© Fali S. Nariman 2006, 2017 All rights reserved 10 9 8 7 6 5432 The views and opinions expressed in this book are the author's own and the facts areas reported by him which have been verified to the extent possible, and the publishers are not in any way liable for the same. Passagesquoted on pp. 53-54 and p. 57 are from Competing Egualities: Law andtheBackwardClassesin India(1984)by Mark Galanter, reprinted with permission of Oxford University Press. ISBN 9780143440116 Typeset in Adobe Garamond Pro by Manipal Digital Systems, Manipal Printed at Repro Knowledgecast Limited, India This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. www.penguin.co.in MIX prrom FSC8ponsiblesouroes wwe.or FSC° C047271 The legal system in India is inextricably linked with the English language: both were originally imported from abroad... Originally an Englishtransplantwith Anglo- Saxon roots, the legal system in India has grown over the years, nourished in Indian soil. What was intended to be an English oak has turned into a large, sprawling Indian banyan tree, whose serial roots have descended to the ground to become new trunks. Justice William O. Douglas, the longest-serving member of the US Supreme Court (1939-75), and a frequent visitor to the subcontinent, gave the following advice to India's lawgivers and law practitioners: As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such rwilight that we all must be most aware ofchangein the air-however slight-lest we becomeunwittingvictimsof thedarkness.' . r.. Excerpt from The Douglas Leters:Selectionsfrom the Private Papers of Justice William O. Douglas by William Orville Douglas and Melvin I, Urofsky (Bethesda: Adler and Adler, 1987). The legalsystem in pre-British India Societies in ancient India were governed by moral law: it was not law' as we understand it today, since it did not owe its origin to the command of any sovereign, nor was there any habit of obedience to a determinate person.' In ancient India, law was that which was believed to have been ordained by a Divine Author. It was more like what the Romans called jus receptum law byacceptance. In ancient India, the principal source of law' (in this sense) were the smritis. 'Smriti' meant literally 'that which was remembered': the recollections handed down by the rishis (or sages of antiquity), of the precepts of God. The rishis (known as smritikars) compiled the metrical smritis at different times and in different parts of the vast expanse of territory called Bharat. But in so doing they did not exercise any temporal power, nor did they owe their position to any sovereign. The authority of their legal injunctions was derived partly from the reverence in which they were held, and partly by the belief that what they laid down Fali S. Nariman was agreeable to good conscience. The smritikars did not arrogate to themselves the position of lawmakers, they claimed only to be exponents of divine precepts of law and compilers of the traditions handed down over generations. Changes were affected over time by a slow process of recognition of particular usagesas of binding efficacy. The smritis, also known as the Dharmashastras (literally, the strings or threads of the rules of Dharma), were a compendium of principles for the regulation of human conduct. Composite in their character, they were a blend of religious, moral and social duties. There were a large number of smritis (which also included commentaries and digests), but the principal smritis were three in number. First and foremost in rank of authority was the code or institutes of Manu-the Manusmriti, compiled somewhere between 200 BC and AD 100. Then came the code or institutes of Yajnavalkya (the Yajnarvalkya Smritis, compiled between AD 200 and AD 300), the Mitakshara being the leading commentary on this code. Next came the code or institutes of Narada (compiled aroundaD 200). If the smritis constituted the foundation of the written text of the 'law, thesadachar (or approved usage) supplied the unwritten customary practices ot the people of Bharat. The unique and pre-eminent position of the Manusmrii is apparent from its opening lines: India's Legal System [Unto] Manu, blissfully seated with his mind abstracted from the world of thesenses,came the great sages. Having worshipped him they, conformably to reasonandpropriety,interrogated him.. And Manu answered the sages: his answers became an authoritative reservoir of law, a systematic and cogent colleetion of rules in simple language, of easy comprehension. They recast in convenient and accessible form the entire traditional law. All the Dharmashastras, right down from the Rig Vedic age, copiously refer to the opinions of Manu-the primeval legislator. Later texts repeatedly affirm that the authority of the precepts contained in the Manusmriti is beyond dispute-a fact acknowledged in decisions of courts as well. Manu's code is divided into twelve chapters, and in the eighth chapter there are stated rules on eighteen subjects of law, which include both civil and criminal law. Sir William Jones, who came to India in 1774 as one of the first judges of the Supreme Court of Judicature of Bengal, learnt Sanskrit and undertook an authoritative translation of the Manusmriti. In the preface to the translated work (published in 1794), this is what he wrote: The style ofit [of the Manusmritil hasacertain austere majesty that sounds like the language of legislation Fali S. Nariman and exhorts a respectful awe; the sentiments of independence on all beings but God, and the harsh admonitionseven to kingsare truly noble. .. The codeofYajnavalkyawas founded on the Manusmriti, but the treatment was more logical and synthesized particularly on the question of women--their right to inheritance, their right to hold property and the like. Yajnavalkya, though a follower of conventional conservatism, was decidedly more liberal than Manu: possiblybecause of the then-pervading influence of the teachings of the Buddha. There are a number of verses in the code of Yajnavalkya that bear testimony to the fact that the law of procedure and the law of evidence to be followed in civil disputes had made considerable progress. According to Yajnavalkya, the cause of a judicial proceeding arose when any right of a person was infringed, or any wrong was done to him by another in contravention of the smritis or customary law. The Code of Narada (a compilation) has come down to us in its original pristine form-it begins with an introduction, and the treatment of the subject is in two parts: the first part deals with the judicature, and the second enumerates and discusses with clarity the eighteen titles of legal subjects contained in the Manusmriti. The merit of this smriti is that it states the
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