India has one of the oldest legal systems in the world with its laws and
jurisprudence dating back to centuries and evolving like a living way of life
with the people of India adapting to the changing times. It's a misconception
that the Indian legal system gained a systematic shape and development only
during the British rule rather we have a traditional mindset of following laws
and regulations and doing our duties for the society which can be inferred from
the verses of Manusmriti that Dharma i.e. Rule Of Law is the supreme power in
the state and the King is also subject to Law to realize the goal of Dharma.
During India's history, it has seen several civilizations and rulers like the
ancient Indus valley civilization to Vedic Age era to Haryanka and Mauryan
dynasties in North followed by Sangam and Chola dynasties in southern India and
then the Islamic Delhi Sultanate empire followed by Mughals and finally The
British Empire in India, whose legal system and machinery we still use in India.
After the Independence of India on 15th August 1947, India formed a constituent
assembly to frame its constitution, which adopted the principles of Democracy,
Secularism, Fraternity, and most importantly the Right to Equality for every
individual in the country, but we continued the same legal system and
infrastructure and also most of the laws which are currently forced in India are
from the British era. The constitution has borrowed many of the principles from
foreign Constitutions like the parliamentary form of government and Rule of law
is taken from United Kingdom (UK) and legal systems, even the majority of its
structure is taken from the Government of India Act, 1935 passed by the British
With the advent of Information Technology and Artificial Intelligence, the
future of the Indian Legal System and profession seems bright as these
technologies will bring more efficient and cost delivery access to justice2.
Thus in this paper, the researcher will analyze the historical, present, and
what is the future of the legal system and profession in India.
India has the oldest judiciary in the world. No
other judicial system has a more ancient or exalted pedigree
- Justice S.S. Dhavan
Legal System in Ancient India:
India's legal history is the oldest in the world which can be traced back to the
Neolithic age, consisting of the civil and criminal adjudication process, which
followed till the Indus Valley Civilization, but the main evidence of India's
historical legal system and heritage can be traced from the Vedic period, where
the main idea of justice and law is given by the idea of Dharma as illustrated
by various Hindu texts like Puranas
is generally mean principle of righteousness or duty, principle of
holiness and also the principle of unity. Yudhishthira says in his instructions
to Bhishma that whatever creates conflict is Adharma, and whatever puts an end
to conflict and brings about unity and harmony is Dharma.
According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India
starting from the family courts and ending with the King. The lowest was the
family arbitrator. The next higher court was that of the judge; the next of the
Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the
Kings court 4.
There was also a concept of popular courts which was very similar
to the present panchayat system in India and the government and King had not to
control it. As the king was responsible for his subjects and has to protect
them. Disputes in these courts were decided on the graveness of the situation
and decisions were also overturned by the higher court of authority, as existed
in the present system of India. Therefore the present structure has some
resemblance in the order of hierarchy to the ancient one.
In the administration of justice, King was given paramount importance and he/she
was expected to follow it with due diligence and integrity and there were
learned and fearless judges to guide the king according to the prevalent rule of
law at that time5. But with the progress in time, the king had to perform
several other tasks and had to bear many other responsibilities due to which
special judges were selected for the task of administration of justice, which
can be illustrated from the reign of Mauryan Empire where a proper judicial
The integrity and the transparency in the judicial system which existed at that
time was unparalleled with strict adherence to rules and regulations, which
Brihaspati described in ancient Hindu texts as a Judge should decide cases
without any personal bias or without any expectation of profit in accordance
with prescribed regulations 6. One of the most striking feature of ancient or vedic judicial system was the Jury System or sabhyas, where councilors or jurors
act as the advisers of the king or judge, which is similar to the Jury System in
India which existed after the Independence, but was later abolished after the
famous KM Nanavati vs State of Maharashtra case
The jury system at that time
used caste as the basis for determining jurors or abayas for different cases.
For Example, any important question of law or shastra to be determined was given
to a Brahmin juror and if there was a dispute between two communities, the
jurors had to be from that communities to decide the judgment7. Thus we can see
that a caste-based judicial system existed in Ancient India.
The nature of the trial in those days was inquisitorial where the judges instead
of lawyers were expected to duly examine the witnesses by cross-questioning
them, which in the present time is mostly missing as judges are expected to
follow a particular procedure and listening to the arguments and then giving the
judgments. However, the legal profession, with professional conduct did not
exist at that time as instead of lawyers there were shastris and pandits who had
great knowledge of law.
Legal System In Medieval India:
During the Medieval period in India, the Mitakshara school of law was the most
prevalent law compiled by a Chalukya ruler in the 11th century, which was a very
definite interpretation of the law. Today this law has become the basis of Hindu
Joint Family laws9. Then Islam came into India during the 11th century when
Mohammed Ghori defeated Prithviraj Chauhan at the Second Battle of Tarain in
1192 AD, with which QutubuddinAibak became the first Sultan of Delhi, belonging
to the Slave Dynasty.
For Muslims Koran is the supreme and the only book that
contains the words of Allah During the Islamic era in India, the Hanafi school
of law was administered and practiced, which required non-muslims to pay a tax
called jeziya, and conversion to Islam for non-Muslims was not mandatory10. The
Islamic rule in India under the title Delhi Sultanate ruled from Slave Dynasty
to Lodhi Dynasty(1206-1526) after that Babur defeated Ibrahim Lodhi which
started the rule of the Mughal Empire effectively up to A.D. 1707 and then after
the death of BahadurshahZafar, the Muslim rule in India came to an end.11
During the Sultanate period, there were seven courts of Justice, related to
seven different branches of law. For Example- Diwan-i-Mazlim deals with disputes
concerning with administration or bureaucracy. The Qazi did not come under any
judicial supervision and they deal with religious laws. Non-Muslims had their
autonomy to practice their personal laws and to had their separate courts. Thus
the judicial system during the Sultanate period was not properly organized.12
During the Mughal period courts were divided into two categories:
- Courts Of Religious or Personal Laws.
- Courts of secular, common law, and political offenses.
But the hierarchy at the administrative level or the defined jurisdiction of
courts was missing in the Mughal era. The judicial decisions were very
subjective and vary from judges to judges which results in inconsistency in
Legal System During the Colonial Period in India:
The common law system – a system of law based on recorded judicial precedents-
came to India with the British East India Company13. The Mughal judicial system
was not very organized and efficient due to which, the English Governor of
Surat, where the first English factory was set up after the permission was given
by Emperor Jehangir, decided to have their own legal procedures and rules to
govern the workers who worked at the factory.
The East India Company was granted
a charter by King George-1 to establish the mayor’s court in Madras, Bombay, and
Calcutta (now Chennai, Mumbai, and Kolkata respectively14. These courts had the
authorities to decide cases related to both civil and criminal matters, but they
derived their source of power from the Company15.
The Charter issued by King George led to the establishment of Mayor's Courts,
which had jurisdictions over all other courts and they try to deal with cases
that arise within their territory or company's area. After the victory of the
Britishers in the Battle of Plassey (1757), the Regulating Act of 1773 was
passed by the British Parliament, under which a Supreme Court at Calcutta was
established, whose powers are very similar to our present-day Supreme Court at
After the First War of Independence, the control of India from East India
Company passed on to the British Crown, with the passing of Acts like the High
Courts Act 1861 and the Indian Council Act, which led to the establishment of
three high courts at Calcutta, Bombay and Madras and the abolition of Supreme
Courts, with Privy Council as the highest court of Appeal for nearly 200
years16. After the passing of the Government of India Act 1935, India under
British rule became a Federal Structure, with a new Federal Court at Delhi with
jurisdiction over both states and provinces. It has both appellate and advisory
jurisdiction and also interpret any substantive question of law like the Supreme
Court of India.
Legal System in India After Independence:
After Independence, India's leaders had the huge task of formulating a
constitution to govern a country with a population of more than 350 million
which has so much diversity in it. The task fell on a constituent assembly,
which consists of representation from all sections of society, with Dr. B.R.
Ambedkar as the chief of the drafting committee of the constitution and
Dr.Rajendra Prasad as President of the constituent assembly. Thus after nearly
three years, The Constitution of India came into force on 26th January 1950 and
India became a Republic.
The Constitution of India is the guiding force for making legislations and Acts
throughout India and any law which is in contravention of the provisions of the
constitution will be deemed unconstitutional. While India has formed its own
constitution by itself, if still follows many of the archaic laws and even full
codes from the British era for different offenses like the Indian Contract
Act,1872, Indian Penal Code 1860, and laws like Sedition (section 124A of the
IPC) which was before Independence to suppress voices of freedom fighters, but
now used by different governments to silent the dissenters, activists, and
Not only the laws but also the judicial system and the legal profession we
follow in India are from the British era
Hierarchy of Courts:
The Judicial System in India follows a common law system in which the sources of
law are statutes enacted by Parliament or State legislatures, Customary law, and
judicial decisions of Supreme Court and High courts, which have very significant
value while giving judgments 18.
The Judicial structure is mainly divided into a three-tier structure
- Supreme Court at the top of the judicial system
- Along with 25 High courts across the country, which have
jurisdictions over more than one state
- District and sessions courts and various tribunals for different
types of disputes.
Issues In Indian Legal System:The Indian legal system is particularly refined, bearing testimony to the
ingenuity of human thought. The threads of Constitutional philosophy have weaved
an exquisite tapestry of substantive and procedural laws
-Mr.Ranjan Gogoi-Retired CJI of India
Judiciary is one of the pillars of the Indian democracy which had stood against
the injustices done by governments and individuals to secure the rights of the
aggrieved parties. But in recent times it is being seen that many issues and
problems are plaguing the delivery of justice to the common people. The issues
which are affecting the Indian judiciary are
Pending cases:It has become a huge problem for both the judiciary and the common people for
the last seventy years with over 3.5 crores cases pending across the country's
various courts. Around 59,867 cases pending in the Supreme Court, and 44.75 lakh
cases in high courts. At the district and subordinate court levels, the number
of pending cases stands at a shocking 3.14 crore19.
In a democratic society with
an independent judiciary, it is expected that cases to be resolved in a
reasonable time, but the above figures have shown that reality is far from
ideals. This delay in justice is a very suffering experience for the litigants
and also increases the cost of access to justice. It also degrades the belief of
the common people in the judiciary and leads to litigants searching for
alternative dispute resolutions like settlement out of court.
The high pendency in cases can be attributed to many factors like:
- Population of India, which is staggering at more than 1.2 billion.
- Increase in the dynamics of the legal sector in respect of various
fields such as Information Technology, economic offenses, company laws,
Intellectual Property Rights have led to a large increase in cases and
subsequently, the courts have not evolved with this level of advancement.
- Review petitions and higher appeals in higher courts also account for a
large number of pending cases.
Infrastructural Issues:Court infrastructure is often neglected while deliberating on the issues of
access to timely justice, but it is a very important aspect as it impacts the
efficiency of both the judges and lawyers who work in these courts for six to
seven hours in an uninhabitable environment. The absence of hygiene is also a
big cause of concern, as it can lead to the spreading of diseases and lack of
separate female toilets, obstructs female lawyers to practice in these courts
which is also gender discriminatory.
Vacancy:It is one of the issues which need to be resolved at the earliest both
Subordinate courts and High courts level, as 38% of the sanctioned seats for
judges at the High courts20 across the country are lying vacant, with is
affecting the delivery of justice to the common people. The conditions of lower
courts are also very abysmal as state governments have the sole responsibility
in the appointments to these lower court judges/Munsifs posts and their
promotions are determined by high courts of the respective states. Thus there is
always inconsistency and delays in the appointments to the lowers courts
recruitment because of which aspirants of judicial services often lose their
interest to appear in these exams.
Transparency and Unaccountability:Transparency in the working and appointments of judges to the top courts of the
country has been a controversial topic since Independence. Though the
Independence of the judiciary is one of the basic structures of the
constitution, yet sometimes the collegium system seems to take decisions without
any accountability and explanation, which promotes the breeding ground for
corruption and favoritism in recruitments for judges and magistrates. Also
allocation of cases should be taken into consideration, as in recent times we
have seen unrest in the judiciary in 2018 when a press conference was held by
four judges of the apex court for selective allocation of cases to a particular
Reforms Needed For Indian Legal System:
Various Law Commission reports and Independent research works from
civil society organizations have come out for improvement of our
judicial system, but still, the reality remains far from
implementation of these reports.
Here are some of the measures which can transform the judiciary:
Filling up the Judicial Vacancies:From the above findings, judicial appointments should be filled on an urgent
basis as the backlog of cases is overburdening the system, which is already very
inefficient and slow. From Report No. 245 of the law commission of India it can
be seen that Higher Judicial services are disposing less number of cases and
also they have the highest vacant seats as compared to Subordinate Judicial
Services. Thus more judges are required to clear the pending cases.
Creation Of All India Judicial Services:Creating an Indian Judicial Services on the grounds of IAS, IPS, and IFS would
certainly help in reducing more than 5000 vacancies across the states in
district and subordinates courts.21It would also attract the best talents from
the country as we are witnessing a transformation in legal education from 3
years traditional LLB course to an integrated 5 year BALLB course and also the
opening of National Law Universities, which caters to global standards of
education in the legal domain. It would also increase the diversity in the
judiciary and will increase the representation of backward communities like SC,
ST, and OBC as in the current system different states have different reservation
policies, which can be disadvantageous to the marginalized communities.
Decriminalization of Petty offenses:These cases include minor offenses like traffic challans and cheque bounce cases
which should be disposed of within a specific timeline as they account for a
majority of the pending cases and special courts headed by retired judges can be
established to deal with these petty offenses.
Solving Infrastructural Issues:Creating modern and accessible infrastructure for existing courts across
sessions and high courts should be done on a priority basis, as a comfortable
environment for judges and lawyers will increase their overall
efficiency.Special arrangements should be made inside the complexes for child
witnesses and Persons With Disability(PWD) facilities like rampage and special
Brill documents should be made available for blind litigants. During the
Covid-19 pandemic, the courts which were the most disrupted were the District
courts, as they lack the necessary virtual hearing systems like computers or
proper internet connectivity unlike the High court or the Apex court. Thus
future arrangements should be made for both judges and lawyers to deal with any
uncertain event, which might disrupt the normal physical hearings of courts.
Promoting Alternative Dispute Resolutions(ADR):Promoting ADR culture like mediations and negotiations among individuals and
families and streamlining its process can be a viable option to reduce the
burden of the judiciary. It will lead to a greater sense of satisfaction among
the parties who might get dissatisfied after a court judgment and will also
reduce the cost of litigation.
Though India has one of the oldest legal backgrounds, its judicial system is
still not keeping pace with modern democratic legal systems and is lagging in
the number of judges-people ratios, modern infrastructure, pendency in heinous
offenses like sexual assault, and lack of access to justice to most vulnerable
sections of society.
While India has gained Independence from Britain seventy years back, the
colonial mindset which has been embedded in our thinking and life has still not
gone and our legal system is still plaguing that culture because of which many
severe issues have arisen in recent times like delay injustice because of the
heavy procedural based system and non-decriminalization of obsolete laws like
obscenity law, homosexuality law (Section 377 of IPC).
This colonial culture has
also lead to corruption and non-transparency in the judicial system, as judges
are given very high status in Indian society and are kept out of the purview of
any kind of supervision. There has also been demand from governments and civil
society activists for a change in the current collegium system to bring more
accountability, but these reforms cannot happen unless the judiciary wants it as
happened in the NJAC Act,2014 which was struck down by the Supreme Court.
Therefore from the above study, it can be concluded that the future of the
Indian Legal System is bright and progressive, and in this 21st-century young
first-generation lawyers entering the profession, graduating from the top law
schools. The above changes can be brought into the system drastically if there
is a will to change, as we have seen during the Covid19 how quick changes were
made into the system so that the process of justice does not get disrupted.
- Books Referred:
- Legal History: Evolution of Indian Legal System by NilakshiJatar and
- Landmarks in Indian Legal & Constitutional History by Sumeet Malik.
- Publications Referred:
- Prashant Reddy T AmeenJauharReshmaShekhar, A Primer On The All India
Judicial Service A Solution In Search Of A Problem?, Vidhi Centre for Legal
- Dr. Rahul Tripathi, An Analysis of Judicial System in Medieval India (With
Reference to Criminal Justice System), Volume 3, Issue 1, International Journal
of Current Research and Modern Education,56,56,2018