Judicious review of Indian jurisprudence

Courts of India: Past to Present
Editorial Board: Supreme Court Justices S A Bobde, U U Lalit & R F Nariman; Delhi High Court Judge S. Ravindra Bhat; Senior Advocates Raju Ramachandran, Indu Malhotra & Sanjay R. Hegde; Advocates K. Parameshwar, Madhavi Divan &  Gautam Bhatia
Publications Division, Government of India
512 pages, Rs 1,900 

Novice lawyers are taught the ABCs of legal drafting – accuracy, brevity and clarity.  Courts of India: Past to Present is as accurate as a group of sitting and retired Supreme Court and High Court judges, advocates, law professors and other law professionals can make it.  The subject, the evolution of the legal system and courts in India, does not lend itself to brevity; however, the concise and clear manner in which the book deals with the subject makes for almost riveting reading.     

A cross between a coffee-table book, a whimsical encyclopaedia and a compilation of facts -- trivial or otherwise, Courts of India: Past to Present is meant for the legal professional and lay person alike.  The introduction emphatically states that it is not an official history of the Supreme Court, nor is it endorsed by the Supreme Court as an institution.  The book says that it is meant to offer glimpses into the rich and complex history of the courts of India, from ancient origins through the colonial period to the present.   

The coffee-table aspect of the book is highlighted by the pictorial representations – portraits and photographs, old and new, copies of paintings and lithographs, copies of court documents, including old judicial stamp papers, stamps and first-day covers – there is hardly a page without pictures, which for a history aficionado, make the book worth the price.

The initial part of the book takes us to the foundations of ancient Indian society and ancient court systems.  We learn of the division of cases into civil and criminal, and miscellaneous!  The hierarchy of courts – local courts, circuit courts, courts acting under the king’s seal, and the court of the king – is discussed, as is arbitration and mediation.  The book is full of chapter notes, enabling a serious scholar to utilise the book as a source in itself. 

It moves into the mediaeval period, and talks of the court systems that emerged under various Muslim dynasties, and in various provinces such as Assam, Bengal and under the Marathas.

The colonial period, with the establishment of courts, first under the East India Company, and subsequently under the Government of India Act, 1858, is dealt with in detail, with a plethora of information on the court systems, personalities of the day, and some of the more interesting cases.  There are also sections on the justice administration systems in the territories held by the Portuguese and the French.

Significant and far reaching changes were wrought subsequent to 1857, the most notable being the passing of the Indian High Courts Act of 1861, leading to the foundation of the High Courts in Calcutta, Bombay and Madras, and eventually in other places.  

Interestingly, the book tells us how the legal model of Bombay, based on the concept of “common law” as an amalgamation of local customs, was supplanted by the Calcutta model where secular matters were left to be settled by courts, and religious matters went to ecclesiastical authorities, and how the Calcutta model was adopted for all of British India.  The book observes that many scholars feel that this ultimately led to reification of text-based, inflexible “personal laws”.

After talking about the Privy Council and the Federal Court, the narrative then turns to the post-independence period, with descriptions of the Supreme Court and all the High Courts of India, some of their important personalities and cases.

The section on important cases in Indian legal history has 11 important cases.  My favourite is the description of the various sedition trials of Lokmanya Tilak.  In the third of such trials, where Tilak was defended by Mohammed Ali Jinnah, the court eventually held Tilak not guilty and observed that “disaffection” was erroneously equated with “absence of affection”.  As a result, there was an amendment in the Penal Code, and the amended provision, once a repressive tool of the colonial government, remains a part of the law today.

The book is not a fawning paean to the courts or judges.  It does not seek to hide skeletons in a closet.  It looks at several important faults and wrong decisions.  One such example is the famous Habeas Corpus case, where the government had argued that the emergency powers exercised in 1975 suspended fundamental rights.  While four judges of the Supreme Court upheld the contention of the government, only one, Justice H R Khanna, disagreed.  The majority view of the Supreme Court was described by H M Seervai, as making the “darkness complete” in the “darkest hours of India’s history”. 

I found this extract from the “The king should protect associations of non-believers and believers in the Vedas, of traders, uncultured people (equally) in the fort and villages.”

The first print run of the book is almost sold out, with remaining copies commanding a premium. A second print run is on the anvil.  This is certainly a book to buy, and read, in one go, or in bits and pieces, over long leisurely days and nights.

The reviewer is an advocate practising in the Delhi High Court

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