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Mahatma Gandhi Community Forum

INDIAN JUDICIARY AND JUSTICE DELIVERY SYSTEM

 “There is no conception here, as you see of doing anything administratively. I have expressed my own hope in connection with the Federal and Supreme Court. To me the Federal Court is the Supreme Court; it is the final court of Appeal beyond which there would be no appeal whatsoever; it is my Privy Council and it is the palladium of liberty. It is the court to which every person who is at all aggrieved can go. A great Jurist in the Transvaal – and the Transvaal and South Africa generally have undoubtedly produced very great Jurists – once said to me, in regard to a very difficult case, “Though there may be no hope just now, I tell you that I have guided myself by one thing, or else I should not be a lawyer: the law teaches us lawyers that there is absolutely no wrong for which there is no remedy to be found in the court of law, and if judges says there is no remedy, then those judges should be immediately unseated”. I say that with all deference to you, Lord Chancellor.

I, therefore, think that our European friends may rest assured that the future Federal Court will not send them away empty-handed, as we expect to go away empty-handed, if we do not have the favour of the Ministers, who are the present advisers of His Majesty. I am still hoping that we shall have their ear and get round their better side, and then we may hope to go away with something substantial in our pockets; but whether we go away with anything substantial in our pockets or not, I hope that if the Federal Court of my dreams comes into being then the Europeans and everybody – all the minorities – may rest assured that that Court will not fail them though a puny individual like myself may fail them.

The above are the words of Mahatma Gandhi pleading with the British Lord Chancellors in 1930’s while pleading for a Supreme Court for independent India from British colonial rule.



Mahatma Gandhi’s dreams of Supreme Court and other courts did not come into being even after more than six decades of India’s becoming a republic with its own written constitution.

Primary duty of a nation/state, including the smallest village republic, is granting justice. Policing is a part of delivery of justice – pro-activism against injustices. In the modern state, be it India or the older so called democracies like United States of America and Great Britain, this primary duty gets neglected. Citizens paid tax to the state, primarily for administering justice.

Modern nation / state roles got widened. With the advent of the so called modern education, the so called development of science and technology including information technology, this primary function of a nation / state got more complicated, time consuming and expensive. Nation/state’s role too got widened beyond granting justice.

If one may carefully look at it now, the nation/state caused injustices are more. Legal profession has become a vested interest in itself. Those who get into the judiciary, including the highest judiciary, have all the weaknesses and shortcomings of a common man but consider themselves as infallible.

The manner in which Iraqi President Saddam Hussein was out-seated, tried in a special court, the questionable way of trial, sentencing him to death and the expeditious speed in which the death penalty was executed is a clear indication to which direction Judiciary, Laws and the institution of granting justice is going reckless. This has to change. This absolutism cannot last long as it is in itself its on instability.

As a hapless insignificant Indian citizen and a humble student of law, this writer strongly believes that Indian Judiciary is betraying Indian people than anyone / anything else. This is something which each one has to personally experience to believe it. Indian Judiciary’s artificial pride and the strong arm of using “defamation” clause against anyone at anytime, is their un-natural protective device. Can a real fame be ever defamed? Never….never….never. Only artificial fames get defamed. In fact such artificial fames are just like water bubbles and they get deflated on its own within a short while or by a simple finger touch by anyone. It is high time, the defamation clause is removed from the statutes. Respect is something to be commanded and not demanded.

Indian Judicial System must change. It must change itself for the better and not bitter for the people.

I am reminded here of what M. K. Gandhi, who himself was a lawyer, who later became a Mahatma and Father of Indian Nation, wrote in 1908 in his book titled “HIND SWARAJ OR INDIAN HOME RULE”. He writes: “Railways, lawyers and doctors have impoverished the country so much so that, if we do not wake up in time, we shall be ruined.”

M.K.Gandhi wrote: “My firm opinion is that the lawyers have enslaved India, have accentuated Hindu-Mohammedan dissensions and have confirmed English authority.” This continues to be so even after more than six decades of India’s becoming a republic. Look at the very functioning of the courts, the type of dresses both the judges and lawyers wear ignoring the Indian climatic conditions.

Gandhiji continued: “Do you think that it would be possible for the English to carry on their Government without law courts? It is wrong to consider that courts are established for the benefit of the people. Those who want to perpetuate their power do so through the courts. If people were to settle their own quarrels, a third party would not be able to exercise any authority over them. Truly, men were less unmanly when they settled their disputes either by fighting or by asking their relatives to decide for them. They became more unmanly and cowardly when they resorted to the courts of law. It was certainly a sign of savagery when they settled their dispute by fighting. Is it any the less so, if I ask a third party to decide between you and me? Surely, the decision of a third party is not always right. The parties alone know who is right. We, in our simplicity and ignorance, imagine that a stranger, by taking our money, gives us justice.

The chief thing, however, to be remembered is that without lawyers courts could not have been established or conducted and without the latter the English could not rule. Supposing that there were only English judges. English pleaders and English police, they could only rule over the English. The English could not do without Indian judges and Indian pleaders. How the pleaders were made in the first instance and how they were favored you should understand well. Then you will have the same abhorrence for the profession that I have. If pleaders were to abandon their profession and consider it just as degrading as prostitution, English rule would break up in a day. They have been instrumental in having the charge laid against us that we love quarrels and courts as fish love water. What I have said with reference to the pleaders necessarily applies to the judges; they are first cousins; and the one gives strength to the other.”

The above are more relevant today in India more than ever before. British quit India more than six decades back but the British system is stronger than ever before through Indian lawyers and judiciary. This is something to be personally experienced to believe it.

In India, especially for the ruling elite including the lawyers and judges there are more rights than duties. They serve more the rich, the urban, the social elite and less the rural people and the hapless villagers. Majority of Indian people who live in villages, toil hard and produce food and fiber for all cannot afford our judicial system. They silently suffer and silently pray and seek justice from the Supreme Judge and Creator the God Almighty.

To become a lawyer or judge is to forget one’s own culture, civilization and the path through which he/she reached the present position. This is equally true with other professions too.

What Mahatma Gandhi wrote in 1908 is more relevant today and more speaks out the heart of hapless common man of today. Therefore I am quoting here what Mahatmaji himself wrote of Indian Civilization.

Civilization is that mode of conduct which points out to man the path of duty. Performance of duty and observance of morality are convertible terms. To observe morality is to attain mastery over our mind and our passions. So doing, we know ourselves. The Gujarati equivalent for civilization means “good conduct”.

If this definition be correct, then India, as so many writers have shown, has nothing to learn from anybody else, and this is as it should be. We notice that the mind is a restless bird; the more it gets the more it wants, and still remains unsatisfied. The more we indulge in our passions the more unbridled they become. Our ancestors, therefore, set a limit to our indulgences. They saw that happiness was largely a mental condition. A man is not necessarily happy because he is rich, or unhappy because he is poor. The rich are often seen to be unhappy, the poor to be happy. Millions will always remain poor. Observing all this, our ancestors dissuaded us from luxuries and pleasures. We have managed with the same kind of plough as existed thousands of years ago. We have retained the same kind of cottages that we had in former times and our indigenous education remains the same as before. We have had no system of life-corroding competition. Each followed his own occupation or trade and charged a regulation wage. It was not that we did not know how to invent machinery, but our forefathers knew that, if we set our hearts after such things, we would become slaves and lose our moral fiber. They, therefore, after due deliberation decided that we should only do what we could with our hands and feet. They saw that our real happiness and health consisted in a proper use of our hands and feet. They further reasoned that large cities were a snare and a useless encumbrance and that people would not be happy in them, that there would be gangs of thieves and robbers, prostitution and vice flourishing in them and that poor men would be robbed by rich men. They were, therefore, satisfied with small villages. They saw that kings and their swords were inferior to the sword of ethics, and they, therefore, held the sovereigns of the earth to be inferior to the Rishis and the Fakirs. A nation with a constitution like this is fitter to teach others than to learn from others. This nation had courts, lawyers and doctors, but they were all within bounds. Everybody knew that these professions were not particularly superior; moreover, these vakils and vaids did not rob people; they were considered people’s dependants, not their masters. Justice was tolerably fair. The ordinary rule was to avoid courts. There were no touts to lure people into them. This evil, too, was noticeable only in and around capitals. The common people lived independently and followed their agricultural occupation. They enjoyed true Home Rule.

And where this cursed modern civilization has not reached, India remains as it was before. The inhabitants of that part of India will very properly laugh at your new fangled nations. The English do not rule over hem, nor will you ever rule over them. Those in whose name we speak we do not know, nor do they know us. I would certainly advise you and those like you who love the motherland to go into the interior that has yet been not polluted by the railways and to live there for six months; you might then be patriotic and speak of Home Rule.

Now you see what I consider to be real civilization. Those who want to change conditions such as I have described are enemies of the country and are sinners.

How true the above words are! How relevant today the above words are!! M. K. Gandhi himself was a lawyer – a product of our own civilization. He studied law in England and practiced law in British South Africa, but he did not forget his routes and the civilization that created his character. Mahatma Gandhi was chosen as a man of past millennium. Indian elites continue to use and abuse his name and leave no chances for disrespecting him. Mahatma Gandhi was and is a Spiritual Master of not only India but the universe as a whole. His was universal healing touch. What can afford to disown it? Who can afford to ignore it? Who can show a better alternative to the present day problems confronting the world, including unemployment?

India is free from the so called British Rule. Cricket to Judiciary India excels even Great Britain today. Naturally we are more British today than ever before. India badly needs today Indian Home Rule than ever before. The stumbling block for this Home Rule will be right from Indian Judiciary to Indian Lawyers down to political and apolitical elites sitting in National Capital Territory Delhi and State Capitals and exploiting the millions living in villages.

Time has come for the present generation to awake and arise, if the world is to be better for them and for future generations.

Let the Schools, Colleges and Universities be closed for sometime. Let all the Police Stations and Courts be closed for sometime. Nothing will go wrong in India. Let everyone go to remote villages of India where still the civilization sustains and learn from there. Go there as one of them. Go there as a student and not as a teacher. Go there as a servant not as a master. Go there not with pre-judgment. Go there without briefs and get briefed by the Mother Nature and true Indian village atmosphere still keeping the fragrance of Indian civilization.

I have the courage to tell this as I have had the Divine Grace and the opportunity to travel criss-cross the country mostly by foot, without money and with the vow not to ask anyone for anything, leaving it for each moment to lead me to the next moment and each place to the next place. Commencing the journey all alone at Kanyakumari on October 2, 1999, I formally concluded the journey on August 31, 2000 after reaching the Himalayan Shrine Kedarnath and returning to the National Capital Territory Delhi. This is possible and feasible for everyone including a child. What is required is fearlessness and total surrender to the Almighty God.

If Judges and Lawyers are not cowards and they are true Indians, value Indian civilization and smell its fragrance, then it is a challenge for them to undertake such a mission, experience things to personally believe it. Will any one care and dare such a feet?

A Judge needs vacation. A Lawyer needs vacation. Both needs court rooms and files. Judges need salary enhancements and privileges and pensions. Lawyers need their fees whether the case is admitted or not and the judgment is in the litigants favour or not. They can dare for a Court Bandh or National Bandh. 

Indian villagers who produce food and fiber cannot afford vacation. They do not demand and they give. They remain hungry and feed even those already fed. This is Indian village and Indian civilization. This may not be easily understood by the Western Civilization that is beyond recognition and its original fragrance due to Industrialization and self-centeredness.

Colonel Thomas Munro who served for thirty-two years in India had the clear conviction and courage to write as follows, which may today illuminate the present-day modern educated or rather English educated men and women at all levels:

If a good system of agriculture, unrivalled manufacturing skill, a capacity to produce whatever can contribute to convenience or luxury; schools established in every village, for teaching, reading, writing and arithmetic; the general practice of hospitality and charity among each other; and, above all, a treatment of the female sex, full of confidence, respect and delicacy, are among the signs which denote a civilized people, then the Hindus are not inferior to the nations of Europe; and if civilization is to become an article of trade between the two countries, I am convinced that this country (England) will gain by the import cargo.

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Comment by R. Ramachandran Nair on May 25, 2015 at 8:21

Thanks for your comments.  This was written a few years back.  I have my own bitter experiences and I am a personal witness of bitter experiences of innumerable people.  Remember I am a law graduate of 1980 from Nagpur University.  I chose to register and practice in court.  I contributed a number of articles on constitutional matters and intellectual property matters.  I was invited as one of the 36 prominent Indians for contributing a paper for the book "REFORMING THE CONSTITUTION" edited by Dr.Subhash C. Kashyap, Former Secretary General of Lok Sabha.  My contribution on intellectural property matters is published in the inaugural issue of Invigorated IPR published by Symbiosis University Law College.  Other than posting things in  some blogs I stopped writing to newspapers.  These days newspapers are driven by commerce and not good journalism.  Remember I had the privilege of working with R.R.Diwakar, Information and Broadcasting Minister in Nehru Cabinet.  He was a Constituent Assembly Member too.  I had the privilege of meeting eminent jurists like Justice Chandrachudan, M.C.Chagla, Hidayatullah etc.  No use of writing any more, I feel.  Let the younger generation take up such matters and change things for the better as the future is theirs.

Comment by Balamurali Balaji on May 23, 2015 at 16:00

An outright, open hearted article this one sir. Would have been much better if included the backdrop or what inspired you these days to emphasize these points.

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