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What Ails the System?


Usha Ramanathan

INDIA'S LEGAL SYSTEM: CAN IT BE SAVED?
By Fali S. Nariman
Penguin Books, Delhi, 2006, pp. 155, Rs. 195.00

VOLUME XXXI NUMBER 4 April 2007

In 1985, addressing the bench and the bar on Law Day, Chief Justice P.N. Bhagwati declared: “the judicial system in the country is almost on the verge of collapse.” The “weight of arrears”, the hopelessness-inducing delays, the gamble that is litigation, the incapacity of the subordinate judiciary to attract talent, the lack of training for judicial officers, the paucity of alternative dispute resolution mechanisms and, as Justice Bhagwati emphasised in his 1986 Law Day Speech, unfilled judicial vacancies, were indications of the breakdown of the judicial system, and represented the causes. Some of these have since seen change. There is a National Judicial Academy in Bhopal with the specific mandate of training judicial officers, and there are judicial academies attached to many High Courts. Alternative Dispute Resolution has come centrestage, acquiring an acronym (ADR) that has swiftly gained renown. Judicial vacancies are not as severe as they were in 1985-86. But the arrears, delays, expense, especially, are still symptoms of a structural and systemic malaise. In the setting, Mr Nariman’s essay, which sets out to interrogate whether the Indian judicial system can be saved, is an interesting commonsensical exploration.   The essay takes off to a stuttering start, with a sketchy statement of the history of law from ancient times to the Constitution and beyond. The generalisations veer towards inaccuracy, making one wonder what impelled Mr Nariman to meander through this territory to reach the problems of the present day. As, when he says, “The established courts of British India interpreted the ancient texts and applied the same to the case at hand, and soon built up a vast array of case law summarising the distilled wisdom of the rishis”, (p.22:emphasis added) it is difficult to render accuracy unto this statement. May be the foray into history was to lead up to the induction of the notions of “justice, equity and good conscience” which were to influence the development of judge-made law in colonial India. May be it was also to introduce the reader to `common law’, which, wherever the empire went, “spread, adapting itself to local conditions” (p.25). The implications this had to the nature of power and influence is left to the imagination. Significantly, “no country which had not at some time or the other been a part of the British Empire has ever voluntarily adopted the common law!” (p.26:emphasis in original); may be because “the `common ...


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