Dispensation of Justice by courts in India

Among the other major upheavals that have taken place within countries and federations of countries, the notable ones are the red revolution in China and the disintegration of the Soviet Bloc. We shall look at some of the highlights of these in the next few weeks.

In the meanwhile, this week, I propose to introduce the reader to some of the important features of the functioning of the Judiciary in India.

We have seen, in earlier pieces carried in this column, that the State in India is a creature of the Constitution. The farsighted members of the Constit Assembly (which was tasked with the responsibility of scripting the document), had, scoured around the world and decided to borrow from the counterpart documents, notably of the United States, Britain, France and Russia. The doctrine of separation of powers was, in particular, modelled on the system prevalent in the United States.

Along with the separation of powers we also borrowed, from the American constitution, what is called the system of checks and balances.

Although the concepts of transparency and accountability is have only in recent times become popular in our body politic the Courts in India, thanks to the legacy bequeathed to us by the British, have for long been in the habit of holding their hearings only in public, a very salutary practice that is the very hallmark of a true democracy.

The Head of the State in India, at the national level is the President of India and the Prime Minister is the Head of the executive. The Chairman of the Rajya Sabha and the Speaker of the Lok Sabha one the Heads of the two Houses respectively, and the Chief Justice of India heads the Judiciary.

At the State-level the Governor is the Head, the Chief Minister that of the government, and the Chairman of the Legislative Council (where such a House exists) and the Speaker of the Assembly the heads, respectively, of the houses of legislature.

Even before the provisions of the Constitution of India came into force on 26 January 1950, the four pillars of the Indian legal-system namely the CRPC, CPC, IPC and the Indian Evidence Act were already in place.

The law of precedence also plays an important role in the system of dispensation of justice in our country. What used to be known as "as by law established", in the American system is called in India (following the British parlance), the “rule of law". This concept adds significant value to the principle that the law alone is supreme, and its interpretation is based entirely upon these premises.

When witnesses are called upon to depose in civil suits of or criminal trials, an oath is administered to them at the beginning of the testimony. Those who believe in God begin by saying "I swear" while, on the other hand, those who do not, are allowed to begin by saying" I do solemnly affirm". The universally accepted basis for the administration of the oath is informed by the three rules of speaking "the truth", "the whole truth "and" nothing but the truth". If, during the disposition that follows, witnesses knowingly make false statements they are held to have committed the offence of "perjury".

Wrong doings of a civil nature are usually called “torts,” while those of a criminal type are called “offences.”

Some classical concepts associated with the law and the proceedings in Courts of Law.

It is an established principle in criminal justice is the concept that a person accused of the commission of a crime is considered to be innocent until he is proven guilty. "The burden of proof", in other words, rests with the prosecution, which has to establish that a crime has, in fact, been committed by the accused person. In addition to showing that, the prosecution needs also to show that the commission of the offence was preceded by the intention to commit it – normally described by the expression "mens rea" which, In American parlance, is also referred to as "malice aforethought".

Soon after a case has been filed what is known as a "preliminary hearing "takes place first. It is at this stage that the Court decides whether, in fact, it is necessary for the it to proceed with the suit, or the trial, as the case maybe. If Court feels that the grounds are trivial, or that there is really no need for the matter to be gone into in detail, it may dismiss the case that threshold stage, known as a case being dismissed "in limine".

When a crime is committed the sequence of events that follows comprises – firstly a case being registered with the police, either on the complaint of an individual, or on account of their taking cognizance of it on their own, the registering of the First Information Report (FIR), the filing of a charge - sheet thereafter after the completion of investigation (also called “discovery’ in American parlance), which shows, prima facie, that a crime has been committed, then the conduct of the trial, the announcement of the verdict and then the passing of a sentence together with the quantum of punishment as decided upon by the Court.

There is always present a group of twelve persons called the Jury to assist the Court in determining the guilt of the defendant.

Those undergoing imprisonment following a sentence are I sometimes allowed to go out of jail for a short period, known as a furlough, in response to requests for their presence on important occasions. Often, on the basis of good conduct during the imprisonment, they are also granted what is known as a remission of the sentence.
Sometimes wholesale release of prisoners is also ordered by government is known as a pardon.

The other phenomenon associated with the conduct of trials and hearings by Courts of Law is the commission of contempt of Court by a person, which is usually the consequence of showing wanton disrespect to the bench.

An interesting observation that I will always been fond of quoting in the context of discussing the Law is that “absence of evidence is not evidence of absence".

A common misunderstanding which most people entertain is to confuse a stay order with that of a suspension. The former merely continues the ‘status quo’, while the latter what is the ‘status quo ante’ to be restored.

An important aspect of the evolution of the judicial system in India has been the growth of what is known as "Judicial Activism".

A new concept which the Supreme Court has been following since the early 1960s of the previous century is admitting complaints based on a perceived violation of fundamental rights – known as "public interest litigation" (PIL)s . This is a controversial and much debated concept which is yet to be closed. While it is to be conceded that, when practised in a limited and mature form, it is certainly an important way of dealing summarily and quickly with matters involving encroachments on fundamental rights of citizens, there has also been a growing feeling that The indulgence of Courts has often led to avoidable misuse.

As has been observed by this columnist in earlier articles, Courts in India have, over time, not merely interpreted the law or the provisions of the Constitution - but have, on occasion, made observations and passed rulings that have had the effect of legislation or on one well known occasion, amendment to the Constitution itself. A well-known example is the Golaknath case (in which, for the first time in India’s history, the Supreme Court used the principle of what is called “prospective overruling”), placing the chapter on fundamental rights of the candidates beyond the pale of the powers of Parliament.

There have also, in recent times, been many rulings by Supreme Court in India which have had the effect of filling in vacuums, and showing the manner in which Society needs to keep pace with contemporary issues which were not originally anticipated when certain laws were enacted.

My father, who had retired as a Judge of the Andhra Pradesh High Court, used to say that it is common for appeals in civil matters to be allowed (he was talking about appeals in the Supreme Court) over judgments of the High Courts.

He added, however, that as criminal cases usually deal with facts and not the interpretation of the nuances of the law, there should normally be no scope for the Supreme Court to therefore with the findings of the High Courts. Against that background, he said he found it strange that, in one particular case, the Supreme Court should have observed that one decision of the High Court was "mischievous".

It is also been said that the Supreme Court is not final because it is correct, but it is correct because it is correct.