The last hope of the common man

Despite bleeding the Indian economy throughout their rule, the British left behind sound institutions of governance. An independent judiciary was one of them. The Hindu legal code, based on Manu’s caste philosophy, was highly discriminatory against the depressed castes while the Islamic legal code discriminated against non-believers.

But Anglo-Saxon jurisprudence provided equality for all. An accused was not guilty till proved otherwise. Criminal law now applied to everyone in the country irrespective of his/her religion. The judicial system introduced by the British was based on total impartiality. Civil law varied for different religious communities. The Directive Principles of our Constitution enjoin a common civil code, but for political reasons this has not been implemented.
Indians were given high appointments in the judiciary from the early period of British rule. The bulk of Indian officers joining the Indian Civil Services were diverted to the judicial stream and only a few taken in the executive branch. The first Indian high court judge was Sambhunath Pandit, appointed in 1863. Indians were debarred from top civil appointments in the beginning but later limited numbers were inducted. In the absence of a suitable career outside the government services, most of our English educated and talented youth took to legal or medical professions. We had some brilliant Indian lawyers who gained great distinction. The last British Viceroy, Lord Mountbatten, referring to Indian political leaders like Mahatma Gandhi, Jawaharlal Nehru and Muhammad Ali Jinnah, once said that in India he was up against a battery of barristers.
Some instances to show how the judiciary functioned in the British era are noteworthy. During the 1857 Uprising, the military held what was called “drum head court martials”, with little regard for impartiality and justice. To strike terror among the people, innocent Indians were hung from trees along the road. When peace was restored, the civil judicial system asserted itself.
In Ahmedabad, A British judge broke protocol and stood up to honour Mahatma Gandhi when he appeared as an accused in his court. The Mahatma pleaded guilty and the judge convicted him, awarding a sentence of imprisonment. While doing so, he stated that never before had he had the honour of trying such a great man nor was he likely to have that honour again. He added that no one would be happier than him if the sentence awarded by him was remitted or reduced by the higher authorities.

After Independence, our judiciary by and large has upheld its old traditions. Today, it is the most respected institution in the country. It has been acting as a safety valve for people against the misdemeanours of politicians and any infringement of the Constitution and the law by the executive.
There is rampant corruption in the country. The judiciary has been least affected by this crippling malady. Though there have been some instances of corruption in the judiciary, even at the higher levels, fortunately these are very few. There are also some other issues that have been adversely affecting our judicial system, and these need to be addressed.
Cases in courts linger for much too long with one adjournment after another. Often, cases of murder, corruption and other important crime take years to get decided. Justice delayed is justice denied. In the case of the murder of Jessica Lal, the case was reopened under public pressure. In the British period, cases of murder got disposed of in a year or so, including consideration of appeals in high courts and mercy petitions. Today some murder cases remain pending investigation in police stations for years. Seeking justice has now become very expensive and beyond the reach of the common man. No doubt, our judiciary is handicapped due to shortage of judges and courts. There is also delay and failure of investigation which affects the functioning of our judicial system. There have been reports of individuals remaining locked in jails for years, pending trial for minor offences like travelling without a ticket or theft of small amounts.
In the US, Supreme Court judges are appointed for life. They can quit when they like or due to health reasons. There are no post-retirement carrots for them. This ensures complete impartiality of the judiciary at the highest level. In India, some judges of the Supreme Court or the high courts get lucrative assignments, like governor of a state on retirement. The first such instance was when Sir Fazal Ali, a Supreme Court judge, was appointed governor of Assam soon after Independence. Lately few judges have been appointed governors by the Central government and when a new government came to power, they were removed for political reasons. This adversely affects the impartiality and dignity of the judiciary.
Notwithstanding the above maladies, the fact remains that today the judiciary is looked upon as a saviour of our democracy and to check the excesses of the executive. It is the last hope of the common man. The infirmities of our judicial system should be removed on priority, so that fair, impartial, prompt and inexpensive justice is available to all.

The writer, a retired lieutenant-general, was Vice-Chief of Army Staff and has served as governor of Assam and Jammu and Kashmir