In light of the recent remarks by the Chief Justice of India on the ‘Indianisation’ of the justice delivery system, VIKRAM HEGDE examines what such Indianisation would entail in our legal system and judicial process.
AS the Constituent Assembly Debates were drawing to a close, on November 17, 1949, Mr Kengal Hanumanthaiah, who would later become the first Chief Minister of united Mysore State (now Karnataka) remarked:
“We wanted the music of Veena or Sitar, but here we have the music of an English band.”
This memorable quote from the deliberations of our founding fathers, was among the earliest parts of a persistent discourse in India that our polity, administrative and judicial systems are “not Indian enough”.
Complaints of colonial hangover
This charge has been levelled by persons from across the political and ideological spectrum and has many facets to it. The bureaucracy, which has its origins in the colonial Indian Civil Services, is alleged to be more suited for an extractive imperial power than for a self-governing welfare state.
The police and its relationship with the public is another target of those who complain of insufficient ‘Indianness’. The police are said to have not yet come out of a mindset of a harsh force which was meant to keep semi-civilised natives within the boundaries of the law.
The most strident complaints of colonial hangover, though, are reserved for our legal system, which is perhaps more strikingly un-Indian than any other institution. The attire of its office bearers and service providers, the language they speak in, and many of the laws they interpret and enforce, are all overtly drawn from our erstwhile colonial masters.
Remarks of the Chief Justice of India
The Chief Justice of India (CJI), on twoseparate occasions in the last week, spoke in public about the need to Indianise our justice delivery system.
His comments are worth examining in the context of the long running Indianisation debate. The meaning that the CJI attaches to this concept of Indianisation of the justice delivery system would serve as guidance on the changes that we may expect him to bring about in the remainder of his tenure at the pinnacle of the judiciary.
Other proponents of “Indianising” administrative or legal systems in India often tend towards drawing from customary, traditional or historical models and thought systems that had governed the country for many years before the colonial rule in India, and some that continued to hold sway even during the British Raj. We may remember that our founding fathers categorically rejected many of these systems as they were tainted by inequities which do not deserve to find any place in a modern democracy.
But the project of Indianisation of the justice delivery system articulated by the Chief Justice of India is not on these lines. While he has called for a greater proportion of our legal proceedings to be conducted in the multitude of languages prevalent in various parts of the country, the intention behind this is not to revive any supposed golden era of the past but to make the legal proceedings more participative and inclusive in nature.
English, which is spoken as a first, second or third language by only between 6-10 % of all Indians, has a near monopoly on legal proceedings at the level of the High Courts and the Supreme Court.
While many subordinate courts do transact business in the Indian language of the area they are situated in, the law they apply is laid down in English and their decisions are subject to appeals before an Anglophone court. This excludes a large proportion of Indians from an accurate and direct understanding of the law of the land.
The Supreme Court’s project, commenced in November 2019, of providing authoritative translations of judgments in 9 regional languages, of the state of origin of the case, is a commendable one. It had lost steam during the COVID-19 induced disruption of life and is slowly limping back.
The translation of judgments must not only be brought back in full force and catch up on lost time, but must also be expanded such that important judgments are translated to every language of the Eighth Schedule of the Indian Constitution.
Article 348(2) of the Constitution provides for the Governor of every state to authorise the use of the official language of the state in the High Court of the respective state. Multiple attempts towards securing this in various states have been repeatedlyblocked by the Union Government citing the need for prior approval by the Chief Justice of India in terms of a Cabinet Committee resolution of 1965. The stated position of the Chief Justice recognising the need for importance to be accorded to the Indian languages in the courts may reinvigorate this demand.
We may not presume from the above that English speakers, including those who would speak it with great fluency, would be easily able to understand the specialised jargon which colours our legislations, judgments and government notifications. The length and complexity of documents which lay down the law and the inscrutability of legal proceedings is a problem that has been acknowledged by the CJI, ever so mildly.
Perhaps measures to remedy this situation involve some amount of introspection by the higher judiciary, and we may optimistically hope that the acknowledgement that the problem exists may be the first step towards solving it.
Other Measures Suggested by the Chief Justice of India
The CJI has also flagged procedural barriers as being obstructions in access to justice. Solutions offered by him, such as simplification of procedures and a greater involvement of alternative dispute resolution methods, should be interpreted in the context of his recognition of the litigant as the focal point of the legal system. The call is not for a reversion to the rough and ready justice of the traditional panchayats, but for improving the systems established by law to make them more litigant friendly.
The project of Indianisation is not so much about changing the present system into one drawn from what the historians and anthropologists may recognize as Indian tradition or culture, but simply about making a broader base of Indians a part of the system.
(Vikram Hegde is an advocate on record at the Supreme Court of India. The views expressed are personal.)