JUSTICE SYSTEM IN INDIA: HISTORY, RIGHTS, PROCEDURES

JUSTICE SYSTEM IN INDIA

The legal system in India is derived from English common law and based on the 1950 constitution. Separate personal law codes apply to Muslims, Christians, and Hindus. There is judicial review of legislative acts. India accepts compulsory International Court of Justice jurisdiction with reservations. It is non-party state to the International Criminal Court. [Source: CIA World Factbook =]

The legal system in India is based on the Indian Penal Code (IPC), drafted in the mid-19th century, and the Code of Criminal Procedure of 1973. The Constitution, promulgated in 1950, went further than any other South Asian country in curtailing the influence of traditional legal systems, which in practice applied only to followers of a particular religion, whether Hindu, Buddhist, Muslim, Christian, Jewish, or Parsi..[Source: Paul Hockings, “Countries and Their Cultures”, Gale Group Inc., 2001]

There is a three-tiered judicial system that operates on the village level, area level and district level. Each state has its own police force and hierarchy of law courts, ranging from submagistrate’s courts to the state supreme court. In all al courts the central writ is the Indian Penal Code. These institutions were developed under the British.

Judges decide cases, and there is no trial by jury. Defendants can choose counsel independent of the government, and the government provides free legal counsel for defendants unable to afford such. The judiciary enforces the right to fair trial, and there are effective channels for appeal, but the judicial system is so overburdened with a case backlog that some courts barely function. In non-criminal matters, the government does not interfere with the personal status laws of Muslims and other communities on matters dealing with family law, inheritance, divorce, and discrimination against women. [Source: Library of Congress, 2005]

Various personal laws are administered through the unified civil court system. Islamic law (Sharia) governs many noncriminal matters affecting Muslims, including family law, inheritance, and divorce. There is also an indigenous system of castes and village councils that administer justice and punishment. There are strong constitutional safeguards to ensure the independence of the judiciary. In 1993-94, the Supreme Court issued important judgments limiting the central government's use of the constitutional device known as President's Rule and reaffirming India's secular commitment.[Source: Worldmark Encyclopedia of Nations, Thomson Gale, 2007]

Respect and Use of the Legal System in India

The judicial system retains substantial legitimacy in the eyes of many Indians despite its politicization since the 1970s. In fact, as illustrated by the rise of social action litigation in the 1980s and 1990s, many Indians turn to the courts to redress grievances with other social and political institutions. It is frequently observed that Indians are highly litigious, which has contributed to a growing backlog of cases. [Source: Library of Congress, 1995 *]

Indeed, the Supreme Court was reported to have more than 150,000 cases pending in 1990, the high courts had some 2 million cases pending, and the lower courts had a substantially greater backlog. Research findings in the early 1990s show that the backlogs at levels below the Supreme Court are the result of delays in the litigation process and the large number of decisions that are appealed and not the result of an increase in the number of new cases filed. Coupled with public perceptions of politicization, the growing inability of the courts to resolve disputes expeditiously threatens to erode the remaining legitimacy of the judicial system.*

Paul Hockings wrote: The huge legal profession helps push cases slowly through the complex apparatus of magistrates' and higher-level courts, sometimes creating the impression that litigation is a national sport. While fines and imprisonment are the most common punishments, the Supreme Court has upheld the legality of the death penalty. [Source:Paul Hockings, Countries and Their Cultures, Gale Group Inc., 2001]

Early Laws and Justice in India

Indians have lived under the rule of law since ancient times. Hindu law was codified over two thousand years ago in books called Dharmasastras. For centuries India has guided by the understanding that Manu — the first human created by God. — was the lawgiver and upper caste Brahimin were the interpreters of it. “Cosmos” is a Sanskrit word for justice.

“The Laws of Manu”, dated to around 1500 A.D., represent one of the most ancient sources for our knowledge of early Indian social structure. Though it was probably written in the first or second century B.C., the traditions that it presents are much older, perhaps dating back to the period of Aryan invasions almost fifteen hundred years earlier. Manu himself was a mythical character, the first man, who was transformed into a king by the great god Brahma because of his ability to protect the people. The Laws of Manu are also called Manava-dharma-shastra (“The Dharma Text of Manu”). Traditionally it was most authoritative of the books of the Hindu code (Dharma-shastra) in India.

There have been various stories of trials by ordeal. In Brahamanic India, poison was used in trials. If the person lived he or she was considered innocent. The ancient Hindus forced suspected criminal to chew and spit out rice grains, Grains stuck in the teeth were seen as signs of guilt.

Mughal law and administration were based on established schools of Muslim law and served as the basis of British law and administration. Persian was the language of the law courts and the civil service early in the British period. The "native state executioner" of Delhi carried a meter-long curved sword and wore a helmet, breast plate and should pads covered with fierce spikes.

British Legal System in India

India's independent judicial system began under the British, and its concepts and procedures resemble those of Anglo-Saxon countries. The legal system in India is based on English common law.

Beginning with the Mayor's Court, established in 1727 for civil litigation in Bombay, Calcutta, and Madras, justice in the interior came under the company's jurisdiction. In 1772 an elaborate judicial system, known as adalat , established civil and criminal jurisdictions along with a complex set of codes or rules of procedure and evidence. [Source: Library of Congress *]

Both Hindu pandits and Muslim qazis (sharia court judges) were recruited to aid the presiding judges in interpreting their customary laws, but in other instances, British common and statutory laws became applicable. In extraordinary situations where none of these systems was applicable, the judges were enjoined to adjudicate on the basis of "justice, equity, and good conscience." The legal profession provided numerous opportunities for educated and talented Indians who were unable to secure positions in the company, and, as a result, Indian lawyers later dominated nationalist politics and reform movements. *

The laws and judicial system of British India were continued after independence with only slight modifications. The legal and government systems in former British colonies like Kenya and Jamaica as well as India are based on the English system. The Indian Penal Code came into force in 1862; as amended, it continued to be used after Indian independence in 1947. Based on British criminal law, the code defines basic crimes and punishments, applies to resident foreigners and citizens alike, and recognizes offenses committed abroad by Indian nationals.*

Constitution of India

The Constitution: of India was instituted on January 26, 1950. Before that India was governed under the 1935 constitution adopted under th British. The latest draft was completed on November 4, 1949 and adopted on November 26. 1949 and became effective on January 26, 1950. The Indian constitution has been amended many times. The last time was in 2013. [Source: CIA World Factbook =]

The Constitution: of India is the world’s longest Constitutions, with 448 articles in 25 parts and 12 schedules. One reason for this is that it has to holds together so many and such a diverse group of people. Numerous amendments have been added up the Indian constitution. Initially it had 395 articles in 22 parts and 8 schedules

Unlike the British constitution, the Indian constitution is a written document. Its drafters were heavily influenced by the United States constitution. Although the constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy it is distinguished from many Western constitutions in its elaboration of principles reflecting the aspirations to end the inequities of traditional social relations and enhance the social welfare of the population.

Judicial Branch of the Indian Government

The independent judicial system of India is headed by a Supreme Court appointed by the President on the advice of the prime minister.. The Supreme Court of India comprises the Chief Justice and 27 other Judges appointed by the President of India. Supreme Court Judges retire upon attaining the age of 65 years. India's judicial system began under the British, and its concepts and procedures resemble those of Anglo-Saxon countries. [Source: CIA World Factbook, U.S. State Department reports]

The Supreme Court has numerous legal powers, such as appellate jurisdiction over all civil and criminal proceedings, with the potential of influencing interpretation of the constitution. The parliament and Supreme Court have maintained a contentious relationship on issues related to judicial review and parliamentary sovereignty. Below the Supreme Court are high courts, followed by a hierarchy of subordinate courts, and some states also have panchayat (village-level) courts that decide civil and criminal matters. Some high courts serve more than one state, and all are independent of state legislatures and executives. The judiciary is regarded as slow and cumbersome but is also widely respected and often takes an activist role in protecting citizens’ rights. [Source: Library of Congress, 2005]

The judiciary has traditionally been fiercely independent. The Supreme Court has played an activist role on environmental and health issues and with religious conflict. The Indian judiciary, especially at the higher levels, generally enjoys the respect of its citizens. Because of the peculiarities of the Indian constitution and the ease with which it can be amended, as well as the strong tradition of judicial restraint inherited from British rule, the judiciary plays a much smaller role in the political system than in many other countries, particularly the United States. [Source: Robert S. Robins, Governments of the World: A Global Guide to Citizens' Rights and Responsibilities, Thomson Gale, 2006]

Supreme Court of India

The Supreme Court of India is comprised of 28 judges, including the Chief Justice. Judges are appointed by the President of India. The Supreme Court has numerous legal powers, such as appellate jurisdiction over all civil and criminal proceedings, with the potential of influencing interpretation of the constitution. The parliament and Supreme Court have maintained a contentious relationship on issues related to judicial review and parliamentary sovereignty. Below the Supreme Court are high courts, followed by a hierarchy of subordinate courts. Supreme Court Judges retire upon attaining the age of 65 years.[Sources: Library of Congress, 2005; CIA World Factbook, 2023]

The Supreme Court is the ultimate interpreter of the constitution and the laws of the land. It has appellate jurisdiction over all civil and criminal proceedings involving substantial issues concerning the interpretation of the constitution. The court has the original and exclusive jurisdiction to resolve disputes between the central government and one or more states and union territories as well as between different states and union territories. And the Supreme Court is also empowered to issue advisory rulings on issues referred to it by the president. The Supreme Court has wide discretionary powers to hear special appeals on any matter from any court except those of the armed services. It also functions as a court of record and supervises every high court. [Source: Library of Congress, 1995]

Associate justices as well as judges are appointed by the president after consultation with the chief justice and, if the president deems necessary, with other associate justices of the Supreme Court and high court judges in the states. The appointments do not require Parliament's concurrence. Justices may not be removed from office until they reach mandatory retirement age. unless each house of Parliament passes, by a vote of two-thirds of the members in attendance and a majority of its total membership, a presidential order charging "proved misbehavior or incapacity."

The independence of the Supreme Court is protected by the fact that members can be removed only through a complex process involving the president and an overwhelming majority of both houses of parliament. The only grounds for removal are incapacity (e.g., serious illness) and misconduct (e.g., corruption).[Source: Robert S. Robins, Governments of the World: A Global Guide to Citizens' Rights and Responsibilities, Thomson Gale, 2006]

Courts in India

The Supreme Court is the highest court. Its duties include interpreting the constitution, handling disputes between the states, and judging appeals from lower courts. Below it are high courts, followed by a hierarchy of subordinate courts, and some states also have panchayat (village-level) courts that decide civil and criminal matters. Some high courts serve more than one state, and all are independent of state legislatures and executives. The judiciary is regarded as slow and cumbersome but is also widely respected and often takes an activist role in protecting citizens’ rights. [Source: Library of Congress, 2005]

India's state courts are unusual among those of other federal systems in that they do not function as separate units. The system is integrated. At the lower levels, the judiciary is largely self-selecting, with senior judges appointing their colleagues from within the judiciary to positions. [Source: Robert S. Robins, Governments of the World: A Global Guide to Citizens' Rights and Responsibilities, Thomson Gale, 2006]

Each state’s judicial system is headed by a high court, often called the Supreme Court of a given state. There are 25 such courts. Judgments from these courts may be appealed to the supreme court. Islamic law (Shariah) governs many non-criminal matters involving Muslims, including family law, inheritance, and divorce. In mid-2011 India’s Cabinet approved the program, National Mission for Justice Delivery and Legal Reform, to eliminate judicial corruption and reduce the backlog of cases. India has a Labour Court.

Fundamental Rights in India

The Indian constitution contains civil liberties called Fundamental Rights that are guaranteed to all citizens and include equality before the law and freedoms of speech, expression, religion, and association. Freedom of the press is not explicitly stated but is widely interpreted as included in the freedoms of speech and expression. The Fundamental Rights were also created with the objective of addressing historical social injustices and legally prohibit bonded labor, human trafficking, and discrimination based on religion, sex, race, caste, and birthplace. Still, the government has the authority to limit civil liberties in order to preserve public order, protect national security, and for other reasons. [Source: Library of Congress, 1995*]

The Fundamental Rights embodied in the constitution are guaranteed to all citizens. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus. In addition, the Fundamental Rights are aimed at overturning the inequities of past social practices. They abolish "untouchability"; prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid traffic in human beings and forced labor.

They go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions. Originally, the right to property was also included in the Fundamental Rights; however, the Forty-fourth Amendment, passed in 1978, revised the status of property rights by stating that "No person shall be deprived of his property save by authority of law." Freedom of speech and expression, generally interpreted to include freedom of the press, can be limited "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence".

Group Rights in India

In addition to stressing the right of individuals as citizens, Part XVI of the constitution endeavors to promote social justice by elaborating a series of affirmative-action measures for disadvantaged groups. These "Special Provisions Relating to Certain Classes" include the reservation of seats in the Lok Sabha (House of the People) and in state legislative bodies for members of Scheduled Castes and Scheduled Tribes. The number of seats set aside for them is proportional to their share of the national and respective state populations. [Source: Library of Congress, 1995*]

Part XVI also reserves some government appointments for these disadvantaged groups insofar as they do not interfere with administrative efficiency. The section stipulates that a special officer for Scheduled Castes and Scheduled Tribes be appointed by the president to "investigate all matters relating to the safeguards provided" for them, as well as periodic commissions to investigate the conditions of the Backward Classes. The president, in consultation with state governors, designates those groups that meet the criteria of Scheduled Castes and Scheduled Tribes. Similar protections exist for the small Anglo-Indian community.*

The framers of the constitution provided that the special provisions would cease twenty years after the promulgation of the constitution, anticipating that the progress of the disadvantaged groups during that time would have removed significant disparities between them and other groups in society. However, in 1969 the Twenty-third Amendment extended the affirmative-action measures until 1980. The Forty-fifth Amendment of 1980 extended them again until 1990, and in 1989 the Sixty-second Amendment extended the provisions until 2000. The Seventy-seventh Amendment of 1995 further strengthened the states' authority to reserve government-service positions for Scheduled Caste and Scheduled Tribe members.

Directive Principles of State Policy in India

An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble. [Source: Library of Congress, 1995 *]

In some cases, the Directive Principles articulate goals that, however admirable, remain vague platitudes, such as the injunctions that the state "shall direct its policy towards securing . . . that the ownership and control of the material resources of the community are so distributed to subserve the common good" and "endeavor to promote international peace and security." In other areas, the Directive Principles provide more specific policy objectives. They exhort the state to secure work at a living wage for all citizens; take steps to encourage worker participation in industrial management; provide for just and humane conditions of work, including maternity leave; and promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other disadvantaged sectors of society. The Directive Principles also charge the state with the responsibility for providing free and compulsory education for children up to age fourteen.*

The Directive Principles also urge the nation to develop a uniform civil code and offer free legal aid to all citizens. They urge measures to maintain the separation of the judiciary from the executive and direct the government to organize village panchayats to function as units of self-government. This latter objective was advanced by the Seventy-third Amendment and the Seventy-fourth Amendment in December 1992. The Directive Principles also order that India should endeavor to protect and improve the environment and protect monuments and places of historical interest.*

The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities".

Criminal Justice System in India

“The criminal justice system in India descends from the British model. The judiciary and the bar are independent although efforts have been made by some politicians to undermine the autonomy of the judiciary. From about the time of Indira Gandhi's tenure as prime minister, the executive has treated judicial authorities in an arbitrary fashion. Judges who handed down decisions that challenged the regime in office have on occasion been passed over for promotion, for example. Furthermore, unpopular judges have been given less-than-desirable assignments. Because the pay and perquisites of the judiciary have not kept up with salaries and benefits in the private sector, fewer able members of the legal profession have entered the ranks of the senior judiciary. [Source: Library of Congress, 1995 *]

Despite the decline in the caliber and probity of the judiciary, established procedures for the protection of defendants, except in the case of strife-torn areas, are routinely observed. The penal philosophy embraces the ideals of preventing crime and rehabilitating criminals.

“Under the constitution, criminal jurisdiction belongs concurrently to the central government and the states. The prevailing law on crime prevention and punishment is embodied in two principal statutes: the Indian Penal Code and the Code of Criminal Procedure of 1973. These laws take precedence over any state legislation, and the states cannot alter or amend them. Separate legislation enacted by both the states and the central government also has established criminal liability for acts such as smuggling, illegal use of arms and ammunition, and corruption. All legislation, however, remains subordinate to the constitution.*

Criminal Law and Procedure in India

The Indian Penal Code classifies crimes under various categories: crimes against the state, the armed forces, public order, the human body, and property; and crimes relating to elections, religion, marriage, and health, safety, decency, and morals. Crimes are cognizable or noncognizable, comparable to the distinction between felonies and misdemeanors in legal use in the United States. Six categories of punishment include fines, forfeiture of property, simple imprisonment, rigorous imprisonment with hard labor, life imprisonment, and death. An individual can be imprisoned for failure to pay fines, and up to three months' solitary confinement can occur during rare rigorous imprisonment sentences. Commutation is possible for death and life sentences. Executions are by hanging and are rare — there were only three in 1993 and two in 1994 — and are usually reserved for crimes such as political assassination and multiple murders.*

Courts of law try cases under procedures that resemble the Anglo-American pattern. The machinery for prevention and punishment through the criminal court system rests on the Code of Criminal Procedure of 1973, which came into force on April 1, 1974, replacing a code dating from 1898. The code includes provisions to expedite the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework of the criminal justice system, however, was left unchanged.*

Constitutional guarantees protect the accused, as do various provisions embodied in the 1973 code. Treatment of those arrested under special security legislation can depart from these norms, however. In addition, for all practical purposes, the implementation of these norms varies widely based on the class and social background of the accused. In most cases, police officers have to secure a warrant from a magistrate before instituting searches and seizing evidence. Individuals taken into custody have to be advised of the charges brought against them, have the right to seek counsel, and have to appear before a magistrate within twenty-four hours of arrest. The magistrate has the option to release the accused on bail. During trial a defendant is protected against self-incrimination, and only confessions given before a magistrate are legally valid. Criminal cases usually take place in open trial, although in limited circumstances closed trials occur. Procedures exist for appeal to higher courts.*

India has an integrated and relatively independent court system. At the apex is the Supreme Court, which has original, appellate, and advisory jurisdiction. Below it are eighteen high courts that preside over the states and union territories. The high courts have supervisory authority over all subordinate courts within their jurisdictions. In general, these include several district courts headed by district magistrates, who in turn have several subordinate magistrates under their supervision. The Code of Criminal Procedure established three sets of magistrates for the subordinate criminal courts. The first consists of executive magistrates, whose duties include issuing warrants, advising the police, and determining proper procedures to deal with public violence. The second consists of judicial magistrates, who are essentially trial judges. Petty criminal cases are sometimes settled in panchayat courts.*

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Text Sources: Library of Congress, Ministry of Tourism, Government of India, Encyclopedia.com, New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Reuters, Associated Press, AFP, Wall Street Journal, Wikipedia, BBC, CNN, and various books, websites and other publications.

Last updated December 2023

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