“JUDICIARY AND ITS ROLE IN DEVELOPMENT”

A research paper submitted in partial fulfilment of the course Criminal Law – 1 for the
requirements of the Degree B.A.LL.B (Hons.) for the academic session 2019-2020.

Submitted by-
Adarsh Kumar
Roll No. – 1907

Submitted to-
Dr. Shakeel Ahmed
(Asst. Professor of Sociology)

September, 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001
 DECLARATION BY THE CANDIDATE

I, ADARSH KUMAR, student of Chanakya National Law University hereby declare that the
work reported in the B.A.LL.B (HONS.) project report entitled: “JUDICIARY AAND ITS
ROLE IN DEVELOPMENT” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Dr. Shakeel Ahmed. I have
not submitted this work elsewhere for any other degree or diploma. I am responsible for the
contents of my Project Report.
 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable
to an extent. This research work, although prepared by me, is a culmination of efforts of a lot
of people who remained in veil, who gave their intense support and helped me in the completion
of this project.
Firstly, I am very grateful to my subject teacher Dr Shakeel Ahmed, without the kind
support and help of whom the completion of this project was a herculean task for me. He
donated his valuable time from his busy schedule to help me to complete this project. I would
like to thank him for his valuable suggestions towards the making of this project.
I am highly indebted to my parents and friends for their kind co-operation and
encouragement which helped me in completion of this project. I am also thankful to the library
staff of my college which assisted me in acquiring the sources necessary for the compilation of
my project.
Last but not the least, I would like to thank the Almighty who kept me mentally strong
and in good health to concentrate on my project and to complete it in time.
I thank all of them!

----------------------

ADARSH
KUMAR
ROLL –
1907

B.A.LL.B.(Hons.)
TABLE OF CONTENTS
 INTRODUCTION

Judiciary being the third pillar of our democracy has always been significant for our democratic
setup as well as for the people of the nation as it is termed as the protector of their rights. It
keeps check and balance over he interference of government in personal life and suggest
government which laws are needed at this time. It has many functionalities which has made
this the most valuable organ of a government.

It plays an important role in the development of the society by going against the public
opinion, such as adultery in not an criminal offence any more mere a ground for divorce. Triple
Talaq law, which is about to become enforceable, even after severe criticism by one section of
society. These laws are made. It shows the vision of judiciary as a guiding force to move ahead
and achieve certain development in social mindset of people.

The judiciary is the system of courts that interprets and applies the law in a country, state
or an international community. The first legal systems of the world were set up to allow citizens
to settle conflicts without violence.1 Judiciary being the third pillar of our democracy has
always been significant for our democratic setup as well as for the people of the nation as it is
termed as the protector of their rights. It keeps check and balance over the interference of
government in personal life and suggests government which laws are needed at this time. It has
many functionalities which has made this the most valuable organ of a government.

The judiciary is the system of courts that interprets and applies the law in the name of
the state. The judiciary can also be thought of as the mechanism for the resolution of disputes.
Under the doctrine of the separation of powers, the judiciary generally does not make statutory
law (which is the responsibility of the legislature) or enforce law (which is the responsibility
of the executive), but rather interprets law and applies it to the facts of each case. However, in
some countries the judiciary does make common law.

In many jurisdictions the judicial branch has the power to change laws through the process
of judicial review. Courts with judicial review power may annul the laws and rules of the state

1
Lesaffer, R. (2009). European Legal History: A Cultural and Political Perspective. Cambridge:
Cambridge University Press. ISBN 9780521701778.. Retrieved on 16 August 2019.
when it finds them incompatible with a higher norm, such as primary legislation, the provisions
of the constitution, treaties or international law. Judges constitute a critical force for
interpretation and implementation of a constitution, thus de facto in common law countries
creating the body of constitutional law. For a people to establish and keep the 'Rule of Law' as
the operative norm in social constructs great care must be taken in the election or appointment
of unbiased and thoughtful legal scholars whose loyalty to an oath of office is without reproach.
If law is to govern and find acceptance generally courts must exercise fidelity to justice which
means affording those subject to its jurisdictional scope the greatest presumption of inherent
cultural relevance within this framework.

The term "judiciary" is also used to refer collectively to the personnel, such
as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes
referred to as a "bench"), as well as the staffs who keep the system running smoothly. In some
countries and jurisdictions, the judicial branch is expanded to include additional public legal
professionals and institutions such as prosecutors, state lawyers, ombudsmen, public
notaries, judicial police service and legal aid officers. These institutions are sometimes
governed by the same judicial administration that governs courts, and in some cases the
administration of the judicial branch is also the administering authority for private legal
professions such as lawyers and private "notary" offices.

It plays an important role in the development of the society by making certain strict laws
even going against the public opinion, such as decriminalizing adultery and let it only be a
ground for divorce. Triple Talaq law, which became enforceable, even after severe criticism
by one section of the society. These all show the vision of Judiciary as a guiding force to move
ahead and achieve certain development in social mindset of people.
 AIMS AND OBJECTIVES

The researcher will be mainly focused on:

1. The importance of judiciary.
2. Origin of mediation and judiciary in India.
3. Its failure and impact on the society.

HYPOTHESIS

1. “Judiciary can’t be manipulated.”

2. “Judiciary has always been boon for the society”.

SOURCES OF DATA

The researcher will be relying on primary as well as secondary sources of Data.

RESEARCH METHODOLOGY

The researcher will be using doctrinal as well as non –doctrinal method.

LIMITATIONS

The researcher has certain limitations regarding time and monetary issues, so, he will be
restricted to certain areas for ground work.

METHOD OF WRITING

The method of writing followed in the course of this research paper is primarily analytical.
 ORIGIN OF JUDICIARY IN INDIA

India by virtue of its connection with Indus Valley Civilization has one of the most ancient
civilized systems in the world. The concept of Nyaya can be traced back to the religious
scriptures like Ramayan, Mahabharat, Smriti and Vedas. The development of Law in India can
be broadly divided in 3 phases:

PHASE PERIOD
HINDU REGIME PRIOR TO 1100 A.D.
MUSLIM PERIOD 1200 TO 1600 A.D.
BRITISH PERIOD 1600 TO 1947 A.D.
POST INDEPENDENCE PERIOD 1947 A.D. ONWARDS

HINDU REGIME
The Concept of justice and judicial system originates from Dharma as perceived by Hindu
Jurists. Since Law is the king of kings, far more powerful and rigid than them, nothing can be
mightier than the law by whose aid, as by that of the monarch are, even the weak may prevail
over the strong.2

Ancient scriptures like Dharmshastra of Manu, Smriti of Narad, Dharmshastra by

Bhrihaspati, Arthashastra by Kautilya gives enough of evidence that the coherent judicial
system was existing in ancient India. The trade and commerce in ancient India was welt
developed. Loans were contracted, instruments of credit, Promissory Notes, hundies were
regularly drawn of though there was no specific banks in the record but some equivalent
institutions existed at that time.3

The Smallest unit of the judicial system in those days was Panchayat – local court of each
village. Village headman and other elder persons headed it. Emphasizing the importance of
Panchayat’s contribution one authority has observed “They are the best judges of the merits of
the case who live in the place where the subject matter of the dispute has arisen.4

The courthouse was seen as sacred place. The code of conduct for judges also was very
strict and if the judge himself misbehaves the punishment was double than the ordinary person.

2
SHATAPATHA BRAHMNA XIV 4/2/26.
3
OUR JUDICIAL SYSTEM BY GOPALDAS KHOSLA AT PAGE 14.
4
SUKRANITi VOL.4 PAGE 24.
If judge passes sentence without inquiring into necessary circumstances he was punishable. If
he repeats the offence he shall be punished double and dismissed of the judge. If he falsifies,
the punishment was 8 times more.5

The plaintiff has right to amend the plaint. Onus of proving what is alleged in plaint is
on the plaintiff. The victorious party shall receive a document recording his success in
appropriate language. The outstanding feature of Narada Smriti is that it is the first of the
Dharmashashtra, which accepts, and record the principle that, king made laws could override
any rule of law laid down in Smriti.6 The traditional advantage of providing justice at doorstep
was achieved through Panchayat and there was institutional continuity though king’s courts
were the apex courts in terms of hierarchy. The law applied in all the court was basically the
traditional law and the customary law and the judgements were arrived after proper rules of
conduct and practices in the relevant context.

TYPE OF COURT/ADMINISTRATIVE DETAILS

UNIT
SANGHRAVA 10 VILLAGES
DRO NAMUKHA 400 VILLAGES
STHANIYA 800 VILLAGES
KING’S COURT STATE

MUSLIM PERIOD

The Moghuls were Sunni Muslims and they ruled India virtually for 300 years. During their
period in particular in 16th century the Muslim population of India developed substantially by
immigration and conversion and military and civil services were dominated by them.

The Moghuls had good experience of administration and they also gave judicial system units
primitive form. The system was not as collaborate, as the one introduced by British later.
Criminals in towns were dealt with by Muslim Kazis and administering the Muslim code. Each

5
KAUTILYA'S ARTHASHASHTRA PAGE 224.
6
MULLA HINDU LAW 1 6th EDITION PAGE 25.
community had its own personal law and it was interpreted and administered through its own
agents. There were Kazis for Muslims and Pundits or village panchayats for Ihe Hindus. In the
countryside, Government post existed only at district headquarters or small towns. The imperial

officers were concerned with large-scale crime such as robbery. In village order was largely
maintained by village elders themselves whose arrangements were fascinating and intricate.
Sometimes it was left to the local landholder, Government was merely seen as revenue
collector.7

Judged by the modem standards the judicial system of Moghuls was rather imperfect. It
had its own merits as well and one of them was quick administration of justice. Judicial official
had great discretionary power. The organised form of judicial administration can be traced back
upto the regime of Akbar. He regulated administration of justice on fairly liberal lines without
any bias towards the Muslims which otherwise was an undesirable feature of the Moghuls.
Shershah during his short period attempted to establish justice in every place. Civil Law was
same for all. The drawback of Moguls was that they paid little attention for prevention and

detection of crimes in rural areas. Headman of the village and his subordinate watchman were
responsible for policing the village. Villagers collectively were bound to compensate, if the
offenders could not be traced out. There was an officer called fojdar whose role it was to
suppress the disorder. The positive feature was that fojdar was bound to compensate the losses
in the event of highway robberies.8

As far as the legislation is concerned there were no written codes or laws. Two exceptions
were the ordinances of Jahangir and Fatwa-E-Alamgiri digest of Muslim law by Aurangzeb.
The judges followed Quranic injunction or precepts. Fatwas are the holy law by eminent jurists
and Qandn are the ordinances of the emperors. Customary laws and principles of equity also
were relied upon. Emperor’s interpretation prevailed provided it did not run counter to the
sacred laws.9

7
PERCIVAL SPEAR - HISTORY OF INDIA, PAGE NO.43.
8
ADVANCE HISTORY OF INDIA BY NILKANTASASTRI AND
SRINIVASACHARi.
9
ADVANCE HISTORY OF INDIA BY R. C. MAJMUDAR PAGE 552
MACMILAN PUBLICATION.
SHIVAJI’S REGIME
Shivaji governed his regime by principles covered in Dharmashashtra by Kautilya. There were
18 Dept, of public service including the dept, of justice. The kingdom was divided into 3
provinces each divided by Viceroy. Panchayats decided minor Civil disputes. Shivaji took great
care to see that his commandants were not corrupt People indulging in crimes were punished
severely.

UNDER BRITISHER’S RULE

The East India Company acquired various powers and expanded their area of operations
gradually. They also created territorial units known as moffusils. In large towns known as
presidency towns separate courts were constituted. Warren Hastings deserves substantial credit
for his efforts to streamline judicial system. He implemented judicial plan of 1772. The judicial
plan was integrated with scheme of collection of taxes. Under the plan the following
courts/Adalats were created.

1. Mofusil Diwani Adalat: It was established in each district and collector was the judge. It
had the jurisdiction to decide matters relating to real and personal property, inheritance,
marriage, debts, disputed accounts, contracts, partnerships and rent demands. In the matter of
personal laws, native law officers, Kazis and pundits were aiso associated. The decision in

matter upto Rs.500 was final.

2. Small Cause Adalat: Cases upto Rs.10 were decided by Head Farmer of the Pargana and
this saved trouble and expense involved in travelling long distance.

3. Mofusil Foidari Adalat: Mofusil Nizamat or Fojdari Adalat was to try all kinds of criminal
cases. Collector was to exercise general supervision over the adalats. Adalat consisted of
Muslim Law Officers, Kazi, Muffi and Moulwees and the law applied was Muslim law of
crimes. At that time there was no uniform law dealing with offences and crimes.

4. Sadar Adalats: Sadar Nizam of Adalats were superior courts functioning at Calcutta. Sadar
Diwani Adalat consisted of Governor and was to hear appeals from Mofussii Diwani Adalats
in cases above Rs.500. Sadar Nizamat Adalat consisted of a judge called Daroga-e-Adalat and
was assisted by Chief Kazi, Chief Mufti and 3 moulwees. The function of this adalat was to
evive the proceedings of lower adalats and approve death penalty.

All adalats were to maintain proper records and registers.

Supreme Court of judicature was created at Calcutta.10 The effort was to provide an improved
and more effective judicial tribunal. It was a court of record and enjoyed Civil, Criminal,
admiralty and ecclesiastical jurisdiction. The judges of Supreme Court were lawyers appointed
by Crown. It was court of law and equity.

The courts were not very successful though they had the powers to issue write like
mandamus, certiorari, and habeas corpus. The main difficulty was that court was not in
harmony with life, tradition, and manner of people. The court gave several controversial
decisions including conviction of Nandkumar on forgery. He was given death punishment
though Hindu or Muslim law recognised Forgery as offence for which capital punishment can
be awarded.

The adalat system was re-organised under judicial plan of 1780 under this plan judicial and
executive functions were separated and given to separate bodies. The adalats were to deliver
themselves exclusively to Civil Justice and had nothing to do with collection of revenue.
Appointment of judges like Sir Impey proved very beneficial to the healthy growth of the
system. It was during this phase that process of certification of law began. Lord Cornwallis
implemented further changes in the judicial system. The revenue functions were given to a
court called Mai Adalat. The Diwani Adalats were empowered to decide all Civil Cases, in
Criminal matters the collector was also given power to arrest for offence and award
punishment, not exceeding 15 strokes or imprisonment exceeding 15 days.

Administration of Criminal Justice was left to Muslim law officers and there were rising
complaints because the courts were degenerated in operation and chaos. There was no adequate
control and supervision. By subsequent Act, High Courts were created in Presidency towns
under Indian High Courts Act, 1861. The High Court was to have ordinary original Civil
Jurisdiction in Calcutta. It also had extra ordinary Civil Jurisdiction and Appellate Civil
Jurisdiction. The Supreme Court at Calcutta was abolished. Subsequently High Court at
Allahabad, Bombay and Madras were also created. Under Indian High Courts Act 1901 few
modifications were made and number of judges was raised to 20. More High Courts were
created under this Act and Government of India Act 1935.

Maharshi Aurobindo has criticised the British system as under:

10
REGULATING ACT OF 1773
"The greatest fall of all has been the fall of belief in the imperturbable impartiality of British
Justice. There are two kinds of strain which no empire, however firmly bound in triple and
quadruple bonds of steel, can long bear, the strain of burden of taxation which the people no
longer fined bearable and the strain of the series of perversions of justice which destroy all the
faith in the motives of governing authorities. Justice and protection between man and man,
between community and community, between rulers and the ruled is the main object for which
states exists, for which men submit tot he restrictions of the law and to an equitable assessment
of the expenses of the machinery which provides for protection and justice."11

AFTER INDEPENDENCE

The independence of the country has brought many aspirations and expectations for the
citizens. India is the largest democracy in the world and for maintaining and strengthening such
democratic status, it is necessary that the rule of law be made to prevail.

The Preamble to the Constitution itself aims at securing social, economic and political
justice for ail the citizens. The goal of justice is to be achieved through the instrument of law
and therefore Parliament and State Legislature have enacted the Laws, which aim at securing
the broad objectives of the State. Another important development after independence is that
tremendous increase in the delegated legislation, which includes laws, byelaws notifications
etc. The level of education of citizens has gradually increased and literacy rate in the country
is 52%. The education has brought more consciousness among the people about their rights
and they look forward -to the judicial system to enforce the remedies under the Law. In India
at present there are about 2500 Central Acts and the State Legislatures also have enacted
substantial laws which have vital influence on volume of litigation. In the province of social
legislation new areas like prevention of untouchability and atrocities on schedule castes and
tribes Act has added new. dimensions to the litigation. Certain amendments brought to the
traditional laws like Negotiable Instruments Act have brought added volume of litigation. The
entire hierarchy of courts functioning in India has been discussed at various stages in this
chapter. All the matters and disputes do not go to courts and some of them go to tribunals.

11
BANDE MATARAM - BY SHRI AUROBiNDO AT PAGE 431.
SUPREME COURT OF INDIA

The Supreme Court of India was established on 28/1/1950 under Constitution of India and it
marks beginning of a new era. it is the highest court of the land and enjoys vast jurisdiction. It
can be truly said that the jurisdiction and power of this court in their nature and extent are wider
than those exercised by the highest court of any country in the Common Wealth or by Supreme
Court of United States. On this court will fall the delicate and difficult task of ensuring to
thecitizens the enjoyment of his guaranteed rights consistently with the rights of the society
and the State. No less onerous though far less spectacular will be the task of adjudging the
private rights of citizens and administering the law of the land.12

12
INAUGURAL ADDRESS BY SHRf M. C. SETALWAD FIRST ATTORNEY
GENERAL OF INDIA
 LANDMARK CASES WHICH AFFECTED THE NATION

From time to time Supreme court and many High Courts has given many remarkable
judgements which changed the course in Inida some of them are discussed here:

1. Kesavananda Bharati vs State of Kerala

The longest judgement ever delivered by the Supreme Court, Kesavananda Bharati vs
state of Kerala, is the third-most cited case (with 155 citations) in the history of the apex
court. In a 417,000-word tome, the judgement established the Supreme Court’s
authority over the Constitution and prevented Parliament from altering its ‘basic
structure’. In her book, 10 Judgements that Changed India, Zia Mody credits this
judgement for “protecting the Indian state from collapsing like many of its South Asian
counterparts, whether through totalitarian rule, military coups or other extra-
constitutional means".