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India’s legal system: Can it be
saved?
Fali S. Nariman is a constitutional expert, a dwindling tribe in this country, and whatever he writes, even if it is published in the letters to the editor column is worth reading. In his latest offering – India’s Legal System: Can it is saved?—Nariman attempts something that only a person of his stature and experience could. His treatise is invigorating, even though, at times, one does get the feeling that he could have hit the nail harder. The initial part of the book takes us through the history of the Indian judicial system, its link with the past and the British judicial system. Starting from the Dharamshastras and the Manusmriti, the book takes the readers through a journey of the evolution of the Indian judicial system, the role played by the English rulers in developing the judicial system, right to the present-day Lok Adalats which are a throwback to the panchayati system of earlier times.
The writer then goes on to give a thumbs up to the recently introduced plea bargain concept. This, he says, is certain to alleviate the sufferings of undertrials. Among the other problems related to the criminal-justice system that he talks of are outdated laws, lack of a comprehensive scheme to pay compensation to victims of crimes, lack of an effective crime-control model, fallibility of judges, etc. One of the reasons cited by him is worth a separate mention. It is the right of the accused to remain silent, often leading to failure on the part of the prosecution to nail the guilty. Using the increase in terrorism-related acts as a pedestal to build his case against allowing terrorists and other criminals to use this as a shield, the jurist argues that serious consideration needs to be given to the proposal that in terrorist-related offences, the right of the accused to remain silent should give way to larger interests of society, and of victims affected by criminal acts. "Victims of acts of terrorism are not to be treated as mere victims of some tortuous actions and given ex-post facto benefits evolved by the legal regimes in the form of socialisation of risks," he says. He also enumerates the large number of causes responsible for current lack of public confidence in criminal administration. While the leading lawyer chooses not to dwell on the failings of the judges, what with charges of nepotism, corruption being levelled against many judges, he does write a little on the contempt law and the power of the judiciary to take to task anybody, and everybody, for perceived contempt of courts. While Nariman is supportive of the power of judiciary to punish errant government servants and others for not implementing court orders by way of civil contempt, it is the criminal contempt that raises the hackles of the eminent jurist. Basing his stand on one of the judgments of the apex court to send to jail for one day writer and activist Arundhati Roy for criticising the Supreme Court for its judgment in the Sardar Sarovar Dam case, Nariman asserts that contempt proceedings in recent times have been most ill-advised. "We are now living under the shadow of judicial regime, which cannot countenance any criticism of itself," he writes. Noting that in its judgment sentencing Arundhati for contempt, the Bench expressed much resentment and anger, the leading lawyer opines that contempy jurisdiction and anger do not go well together. He quotes the words of former Chief Justice of India Gajendragadkar to sustain his argument against judges taking affront to statements against their judgment, ".. anger and irritation would not help sustain the dignity or status of the court, but many sometimes affect it adversely." A must-read for all those who are connected with the judicial system, the book somehow lacks the knockout punch that students of law have come to associate Nariman with. But, even in its current form, the book is a document to treasure.
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