| Almost one-third of the book explains the origins of the law of the land from the Dharmashastras onwards, and in doing so, it takes too long reaching the contemporary context. The author then points out the problem areas. The first is the proliferation of appeals. Courts are hopelessly understaffed to deal with them, causing enormous delays. Nariman recommends a limit on them, emphasing the point by quoting a British jurist of 1872, who said: "No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled." |
| The second problem identified by the author is the all too frequent invocation of the writ jurisdiction of high courts. Nariman says that they should interfere only when the authorities below had rendered decisions which are "so monstrous, so palpably wrong, that interference is called for". As it happens, even Supreme Court judgments are allowed to be reviewed twice. |
| The third serious issue is lack of consistency by the court at the highest level. Nariman considers it a human one: "How are 26 justices drawn from different parts of the country expected to be consistent"" not merely with themselves, but with a continuing body of justices whom they have never known, and whose thoughts and aspirations they do not always share?" |
| Another malady is the excessive burden of case law and lack of effective case law management. There are just too many judgements that have to be cited or studied. This takes up a vast amount of judicial time. In 1990, there were five volumes of printed judgments of the Supreme Court alone. In the last few years, the number has shot up to a dozen. "The 'judgments factory' has become over-commercialised, and quite a large number of the 27 million cases now pending in various courts in India can be attributed, at least in part, to this peculiar Indian malady: 'case law diarrhoea'." Most judgments nowadays are marked as "reportable" by judges, abetted often by "overweening judicial vanity", and this burdens the system. |
| The author pleads with the judiciary not to reject suggestions for judicial reform, and asks it not to ignore the criticisms and complaints of those untrained in law. There would be many more voices, but for the fear of "contempt of court". |
| Excessive use of the contempt jurisdiction chokes ideas. "Let me be frank""contempt proceedings taken in recent years have been most ill-advised. They have stultified useful criticism and suggestions for fear of offending the sensitivity of the court," Nariman writes, and points to the one-day imprisonment of Arundhati Roy for criticising the Narmada dam judgement of the Supreme Court. Judges, according to him, must become far more thick-skinned. |
| The judicial system is not without any positive developments, Nariman admits, citing the emphasis on conciliation and arbitration. He hails specialised tribunals and Lok Adalats as alternative mechanisms for dispute resolution. But the positives are far too few to offer comfort. The state of the criminal justice system is shocking, according to statistics presented by the author. Not even 45 per cent of the people charged with serious crimes are convicted, whereas the figure for the UK, the US, and France is 90 per cent. |
| The author supports the curtailment of certain rights of those accused of heinous and terror-related offences. There is a discussion on the bungling of the Best Bakery case, and how the Supreme Court intervened to put the trial back on track. |
| The reader of this short book gets a bird's-eye view of the problems afflicting the system and possible solutions. Since so few books are written by jurists or retired judges, this is a valuable work. However, the editors seem to have forgotten to spellcheck the text. But then, there are weightier systems at peril than the conventions of language. |
| INDIA'S LEGAL SYSTEM CAN IT BE SAVED? |
| Fali S Nariman Penguin Price: Rs 195 Pages: 155 |
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