10 Thoughts on Law and Justice in India

Adapted from Mr. Nariman’s remarks at the Harvard Law School Center on the Legal Profession’s Delhi book launch of The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (Cambridge University Press, 2017) held on December 11, 2017. Transcript edited for style and length.

Earlier this year, the Harvard Law Review celebrated its bicentennial with a special issue in which the law school’s dean wrote, “Some call this a time of crisis in legal education; others emphasize a time of innovation and renewal. … Most law schools straddle theory and practice and also straddle service to the haves, who pay lawyers’ bills, and the have-nots, who often bear the weight of laws without influence to shape them.” The dean at the time might as well have been speaking of the Indian legal system. In this age of globalization, the fastest of all ages over the centuries, we are all obsessed with time. We don’t have time for this or time for that. But as our national poet Rabindranath Tagore says in one of the verses in his great poem “Gitanjali,” “The butterfly counts not months but moments, and has time enough.” So, if you permit me, I will adopt the butterfly approach, flitting from point to point.

1. The Indian system of justice is British and so adversarial, unfriendly to all the traces of rustic dispute mechanism that had originally taken root in Bharat or Hindustan.
2. The legal system under India’s constitution has everything to do with language—the English language. It is inextricably linked to it. Both were originally imported from abroad, but what was an English oak has become, over the years, a large sprawling banyan tree whose serial roots have descended to the ground to become new trunks. Some of these new trunks are alternative methods of dispute resolution like Lok Adalats and other indigenous species of alternative dispute resolution.
3. Our constitution is founded on the rule of law, and the rule of law embodies a principle of institutional morality, a principle which suggests feasible limits on power to restrain abuses which occur even in the most compassionate administration of the law. But I like that definition in the rule of law which is the briefest, namely, the rule of law is also the rule of the good law; a law which a court can—that’s my belief—if warranted, characterize as abhorrent, grossly unfair, totally unjust; a law which in the hands of a skilled judge can be validly invalidated under the broad parameters of our constitution (Article 14, the equality clause).
4. With regard to punishment, our criminal laws are outdated; not in tune with the times. Previous attempts at reform by introducing forms of punishments like community service, compensation to victims, public censure, and disqualification from holding office had all been proposed, but they were all rejected by India’s Parliament. I believe the time has come when they must be reintroduced.
5. We have not developed an ideal crime-control model simply because, under our adversarial system, we insist on the search for proof rather than the search for truth. Relentless pursuit of truth is not yet a prescribed standard for criminal trials. Criminal courts function as places where evidence does get recorded, but not where the search for truth is pursued. And the crafty, especially those who are wealthy, know how to manipulate police investigations and suborn witnesses.
6. I believe that in India, the crying need of the hour, both in civil and criminal trials, is what Lord Templeman used to call “robust judging.” A good trial judge needs to have a third ear to hear not only what is said but have the mental agility to comprehend what is not said as well.
7. In India, judges are far too few and lawyers far too many. Professor Marc Galanter, on his last visit to India a while ago, told us the then-favorite joke in the United States: What do you say to 50,000 lawyers being dropped to the bottom of the deepest ocean? And the answer is: Well, that’s a good beginning.
8. A couple of years ago the Oxford University Press published a perceptive analysis of the legal profession in the United States and its shortcomings. One of the chapters which I liked best had an unconventional heading. It read: “Too much law, too little justice, too much rhetoric, too little reform.” This sums up the current position in India.
9. This is a point with a silver lining. Over the years, the lawyer in India has shown his true mettle. He is at his best when the going is rough. Lord Atkin once said that an impartial administration of the law is like oxygen in the air—people know and care little about it until it gets withdrawn. In India, the lawyer strives to see that the oxygen is not withdrawn, even when times are bad, as they were during the days of the internal emergency of June 1975. The majority of those who stood up then and were counted, I am proud to say, were the country’s practicing lawyers. They, and many NGOs, are now crusading under varying forms of injustice and exploitation, assisting in promoting change and development in favor of the poor and the deprived, particularly through an expedient known as PIL, or public interest litigation—an indigenous technique developed by India’s judges with the active assistance of the legal profession.
10. There are, of course, problem areas in our courts. We need more judges pushing more cases to a speedier resolution of the dispute at hand. What is required in many cases is not prolonged arguments, and not even long judgments, but primarily solutions. At the highest level, we do strive to see that justice gets done but not always successfully.

Let me close with my favorite story of how truly difficult the business of judging is. Sir Owen Dixon was Australia’s chief justice for more than two decades, and he sat in its high court—the court of final appellate jurisdiction. A lady sitting next to him at a dinner party was greatly enthused with the prospect of his dispensing justice. She leaned towards him and said, clapping her hands with joy, “How splendid!” Dixon’s response was stern, almost unfriendly. “Madam,” he said, “I have nothing to do with justice. I sit on a court of appeal where none of the facts are known. One-third of the facts are excluded by the frailty of memory, one-third by the negligence of the legal profession, and the remaining one-third by the archaic laws of evidence.”

Fali S. Nariman is a Senior Advocate of the Supreme Court of India and President Emeritus of the Bar Association of India. He was Additional Solicitor General of India from May 1972 to June 1975 and was a President-appointee member of the Rajya Sabha between 1999 and 2005.