The Indian Legal System

• The Indian legal system (ILS) offers a perspective on Indian development, culturally, normatively, and institutionally.
• Constitutionally, there have been radical departures from pre-colonial norms, but the system is still burdened by its colonial past.
• There has been a lack of debate in independent India regarding the nature and future of the ILS.
• Discussions have been framed by revivalists versus modernists, particularly around Constitution-making.
• Questions have been raised about the suitability of the Western legal system for a peasant Asian society.
• Some focus on restoring the 'genius' of Indian society.

Views

• Some argue for transformation to pre-colonial communitarianism.
• Modernists suggest the colonial system has been Indianized and suits the Indian people.
• A sophisticated debate occurred during the introduction of the Western legal system in India.
• After 50+ years of independence, the ILS remains burdened which is an indictment of independent India's elite, content with the colonial legal framework.
• The term 'colonial' is used polemically to describe historical continuities with the British Indian Legal System (BILS) in independent India.
• Institutional, normative, and cultural continuities can be of these types: Conscious adaptation, Sheer inertia or Resistance to change.
• The third type involves demanding change from the BILS, but elites defend the status quo.
• This includes rhetoric and justifications reminiscent of the BILS.
• This perpetuates colonial governance through law, characterizing the legal system as colonial.
• 'Colonial' can denote dependency on a 'mother' country even post-colonization.
• Continuous use of Western legal systems shows the ILS is colonial

Juristic Dependencia

• Evident in copycat drafting of laws or reliance on obsolescent Anglo-American decisional law.
• Legislation relies on the model and language of English laws.
• Judicial interpretation heavily depends on Anglo-American decisional materials.
• Legislative and judicial development are conditioned by 'overseas' models, making the ILS subordinate and only occasionally serving Indian needs.
• The Indian reality is too complex for the notion of dependencia.
• The line between 'copycatism' and cross-cultural diffusion is blurred and manipulated.
• The operators of the ILS are excessively oriented to an Anglo-American legal culture.

The ILS Models

• The ILS follows the normative and institutional features of the BILS.
• During British India, there was virtually no participation by the masses in law-making, except through protest.
• Post-independence, law-making remains the domain of elites, affecting the quality, communication, acceptance, and effectivity of the law and reinforcing power centralization.
• Increased public participation in law-making processes is needed.
• State should require discussion of legislative proposals in dominant institutions, including those under the panchayati raj system, universities, and voluntary bodies.
• Consultation with affected groups should be mandatory for delegated legislation.
• Law-making mostly remains an exclusive preserve with implications for law quality, social communication, and power dynamics.
• This requires a substantial amount of public participation.
• India has sterilized conceptions of people’s power.
• Intellectuals oppose voting because most Indians in villages would not understand the complex amendments.
• It reveals a non-egalitarian and authoritarian approach.

Enforcement of Laws

• Participation in enforcement of law is not sought or sponsored by the state.
• There is reactive mobilization versus proactive mobilization.
• The citizen initiates the legal process.
• The state agencies initiate the legal process.
• Despite obvious vulnerabilities, there is a lack of proactive mobilization.
• This includes in major areas of legal innovation.
• This might be because the patterns have not engaged any system by the lawgivers or lawmen .

Legal Information

• The colonial model is also perpetuated in terms of access to law by citizens.
• Access not only includes access to courts but knowledge of lawmakers, legal services, norms, and institutions.
• Lack of public participation renders the ILS nearly identical to the BILS.
• Information on legal norms is not easily as accessible.
• While citizens have a duty to know the law, they lack a right to access legal information.
• The requirement of official gazette notification theoretically ensures laws are accessible, but there is no all-India collection of laws or even an index.
• Finding information on laws prevalent in other states can be difficult.
• The volume of delegated legislation is alarming.
• Publication of delegated legislation is required but hard to come by.
• The government has been unable to agree to an annual publication of statutory instruments and rules.
• Access to normative information is impeded by the legislature, executive, and judiciary.
• There is a lack of comprehensive law reporting.

Court Decisions

• The highest court retains power to classify decisions as 'unreportable'.
• A publisher found the Supreme Court classified 250+ decisions as 'non-reportable' during the 1950s.
• The accessibility of institutional information concerning law is an issue.
• Reports of state governments on administration of justice are hard to find; so are state law and justice reports.

Justice

• The union government gives information, but for some is a non-priced publication, and unavailable in most parts of India.
• Valuable reports are restricted by high government officials.

Legal Services issues

• Citizens cannot reach the legislator with advice, the difficulties are compounded.
• The difficulties are compounded when he encounters operation of the laws without minimal awareness.
• Access to these services hasn’t been seriously addressed.

Constitution

• In its 1976 fundamental rights, legal services was according the status of the directive principle of state policy during the national emergency because even rights were totally denied to a a section of the population.
• It provides legal in deserving cases.
• The criminal procedure was amended I973 to provide the suggestion counsel at state expense in all cases to the sessions courts as an immediate step.
• The citizen had a callous attitude attitude because it was bard to imagine the citizen’s rights in the subcontinent’s harrowing poverty.

Recommendations

• Action needs to be taken on the Iyer and Bhagwati Committees of humane people.
• Legal needs of poor people as ‘colonial’would be the mildest term of stating the matter.
• Adequate legal services could be exciting for meeting with litigation.
• The Iyer Committee stated the facts so bluntly (and rightly) that the ‘egal profession in India enjoys a near monopolistic power’.
• This leads to there being no equalization of ‘bargaining power between the consumers of legal services and the closed group of legal profession’.

Justice standards

• The Committee found that the government , corporations managed and/or controlled by (these) governments and Private and Public Companies are responsible for inflating standard of fees.
• It is recommended that the government takes the policy on maximum fees payable by its own agencies.
• These senior lawyers would dry up
• The legal profession should be modest.
• They have to be invaluable and inalienable for the government.
• If the government’s legal professions aren’t available the 'rule of law' values is fatal .
• They should also include non-litigative because litigation oriented legal is not going so good at improving life.
• As for the Iyer Committee, access to these services will include a whole range of counseling, mediation, arbitration, conciliation.
• Not only by the state levels been prolific in a very large amount of equity attacks laws, the state attack the inequities of the social laws.

Colonial idea

• The colonial idea that to promote by normative objective in order to have the state endorse this position.
• Colonial idea is based on 'Misappropriated' court fees
• Lord Macaulay condemned the preamble to the Bengal Regulation, to inhibit litigation as the most absurd preamble.
• The colonial government and state fees collected do not go towards justice.

Judiciary facilities

• Physical the facilities provided to the subordinate judiciary are scandalous. Space and maintenance are not accounted for.
• When government says there is a ‘lack of resources’ it asks where all the courts are.
• Reports state that most of the proposals for courts are are not sanctioned . These original locations get cut.
• The furniture is barely and cannot be white washed.
• The courts don’t have even enough typewriters and permission from the District Judges too to take English typewriter wherever necessary on hire, that request too has been unheeded.
• The courts can be independent with a structural device ,the same which should be based on the high courts .