Events & Issues

New Delhi, 30 September 2021

Indianisation

NATIONAL OBJECTIVITY

By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

Chief Justice of India, NVRamana, who is keen on judicial reforms by modernising the infrastructure has called for “Indianisation” of justice delivery system to remove the barriers in the way of common people in getting justice. This combination of technological modernisation as the tool and adaptability to local situations in reach has a common objective of benefiting    Indian people from top to bottom. The need for this is not peculiar to the judicial system. It is wanted in  many spheres.

By Indianisation, the CJI means the need to adapt to the practical realities of our society and to  localise our justice delivery system, which is based essentially on pre-independence set up. Use of English language and unfamiliar legal terms some of them drawn even from Roman, Persian, ancient Hindu and Mohammedan laws, cumbersome procedures, lengthy judgements clothed in court language understood only by lawyers, and courts at distance are adding to the woes of poor litigants fighting for justice. They need help even for handling procedural matters from the stage of filing petition to understanding the judgement.

The CJI is of the view that the “working and style of courts do not sit well with the complexities  of India”, and clarifies that the system, practices, rules of courts were colonial in origin and may not be best suited to the needs of the Indian population.

The main concern in this advice is to bring the clientele and the judicial system closer by making the “justice delivery mechanism more people-friendly” so as to ensure that even the most vulnerable sections can hope to exercise their rights. The lofty ideal of people-centric system is now popular in public administration, police, judiciary, healthcare and all such fields directly dealing with people. 

The advice is given mainly for justice delivery and not the contents of law. Justice-seeker must remain the focal point and the system should be “transparent, accessible, and effective”.

Law-making in democracies is the right and responsibility of the legislative bodies. Where traditions and customs have to undergo changes to suit current needs and democratic principles of liberty, rights, and equality, and contemporary concepts of social justice, human rights, and  inclusiveness, judiciary has to support innovations provided these do not violate the basic law of  the land. Every system and institution has to and is evolving in free societies to adjust to societal changes.

In the background of CJI’s advice is survival of several social practices and institutions that   lack legal sanction, some of these even contradicting laws such as the katta panchayats (kangroo courts) and outdated patriarchal values. 

The term “Indianisation” is being used in different contexts for various purposes. Towards the close of the 19th century, British colonial bureaucracy in India at the highest level was opened to Indians by allowing them to take Indian Civil Service Examination (ICS) thus starting   Indianisation of civil services till then restricted to the Europeans.

Indianisation of law-making during British rule began in the 1920s when dyarchic system of government was introduced in the provinces. The Executive consisted of two parts – one called  “Reserved” consisting of law and order, justice, police, land revenue, and irrigation, and the other “transferred”, which comprised local self-government, education, public health, public works, agriculture, forests, and fisheries which were transferred to elected Indian members of  the Executive responsible to the legislature. In this period of Indianisation, the scheme of communal representation in public services and government control over Hindu religious institutions were introduced in Madras Presidency, which provided an idea about future.

The term “Indianisation” is used also to refer to the spread of cultural practices of the Indian sub-continent particularly in South-East Asian countries. South Indian languages, arts and architecture, religions and places of worship such as temples in this region are evidence of strong influence of Indian link among people of these countries. Central Asian and East Asian countries also came under the influence of Indianisation.

The Indian Penal Code, a British gift, came into force 160 years ago to bring a common criminal code across India. The legal system and judicial structure established by the British went a long  way in furthering the basic intention and scheme of the colonial rulers “to create a class of persons Indian in blood and colours, but English in tastes, in morals, in opinion, and in intellect”.

This code has been amended nearly 80 times. New offences and punishments have been added   following adoption of reformatory laws against dowry, rape, sexual molestation at workplace, sex determination test, female infanticide, etc. These are part of the process of Indianisation of law necessitated by Indian social conditions. Cognisable crimes are broadly classified under two categories – those falling under IPC and those under Special and Local laws which number over 50. 

However, new laws have to conform to the fundamental principles of criminal law like presumption of innocence until guilt is proven, equality in application of law, proportionality in treating offences.

Abolition of the jury system in criminal law in 1973 may be considered as a major change towards Indianisation of the criminal procedure brought about after the criminal case involving the naval commander Nanavati. The then judge in the Allahabad High Court said that there was not “sufficient number of right class of people to serve as jurors”. M C Setalvad, the first AttorneyGeneral was of the opinion that Indian people were “temperamentally ill-suited to act as jurors”. The system, peculiar to common law and English temperament had“failed to acclimatise and grow in India”. It was a case of Indianisation of the judicial system.

Law relating to the procedure to be followed in civil courts is governed by the Civil Procedure Code made in 1859. It introduced uniform procedure to ensure fair justice and has undergone several amendments.

Adoption of Hindu Code, which represents civil law reforms for Hindus in the place of  the body of Hindu personal law is a great step forward in “Indianising” in the sense of promoting  democratic ideals and uniformity in law. The process can be completed as a national objective if and when uniform civil code is adopted to benefit people of all religions.

Indianisation of education is being pursued vigorously. Indian languages are replacing English as medium of instruction. Scholars are coming forward to rewrite history from Indian perspective.   Civics is being taught with country’s needs in mind. Value education is being included as part of learning. Vocational stream is integrated with general education. Classroom teaching is adopting new methods to suit new generations of learners. Yoga is introduced in several schools as physical fitness programme. Indigenous and rural sports are encouraged and forgotten songs, dance forms, and drama are being revived.

Changes are being made in several disciplines -- Sociology and Social Work which are primarily American in coverage. Social science research seriously started a scheme of indigenisation  (different label for Indianisation) in the 1980s. 

In healthcare, revival of indigenous system of medicine is receiving encouragement along with native dietary and health practices. Nutritious qualities of old culinary items are remembered. In sum, Indianisation is a national objective best suited to a plural society.

(Copyright, India News & Feature Alliance)