Most of our statutes came into force at the time of colonial rule of the British Emperor who governed us for serving their own interest and purpose. Although the British had left us more than six decades ago, a large number of enactments introduced by them still remain unchanged and, therefore, now become outdated and useless in the context of our own cultural and social base and also in the perspective of the ever changing modern world. Despite the fact that the British introduced there laws through trial and error method i.e. gradually improving them with the experience in the practical field, the vast differences of culture and religion between the ruler and the ruled left unaddressed while incorporating those Acts. Apart from those enactments, the British left many conventions and practices in the arena of our legal field. After the departure of the British imperialism, the new ruler felt that the british legal system is supporting their interests. It has become a challenge since the eve of our independence. The dream of our freedom fighters was to establish a state free from exploitation and a society in which the rule of law, fundamental human rights and freedom, equality and justice- political, economical, and social will be secured for all citizens. The power conferred upon the political party in government and opposition, the government servant and the Judiciary is explicitly expressed in the constitution, the fountain of all laws. All those powers are vested and exercised on behalf of the people and under the tight frame of law.
Under our constitutional scheme, the power of framing laws is vested with the parliament or legislature. It is the supreme body that is supposed to exercise this power with great caution and sincerity. It is believed that the members of the parliament represent the common people and therefore, the desire and will of the common people reflects through the Member of the parliament in framing laws. Again this power of framing laws of the parliament is not unfettered; this power of legislature is subject to constitution and subject to the scrutiny of the Supreme Court of India , the guardian of our constitution. Parliament cannot pass a law which the constitution does not permit. Any law passed by the parliament contradictory to the fundamental rights as enshrined in the Part III of our constitution is ultra vires and every citizen has the right to move in the Supreme Court and High Court for challenging any law passed by the parliament. Instances are not few that our Supreme Court has declared laws passed by the parliament are ultra vires to the constitution. Unlike supremacy of the parliament in England, in our legal system we are experiencing supremacy of the constitution.
In the developed countries, reformation of the formal justice system is a continuous process. Because, they do not consider administration of justice merely a routine service delivery activities of the state but also deal it with the utmost importance and top priority. Independence of Judiciary is a pre-requisite of rule of law and good governance. Without independent judiciary, the constitutional aim of ensuring justice, equality and freedom remains unachieved and become farce to the powerless and underprivileged. Thus independence of the judiciary is made one of the salient features of our constitution by the framers of our constitution. The benefit of the separation is started to come to the litigant people who had to wait for long in the court veranda and premise for a minute long hearing of their petition or application. In order to gain the maximum benefit of separation, along with the process of independence, reformation of the judiciary is required to be integrated. Again, reformation is a wide term. It must include both infrastructural reformation and supra-structural development. Infrastructural reformation such as increase and development of the court building and number of the courts, court staff and judicial officers, logistics and training facilities of the judicial officers and use of science and information technology are essential for the quick disposal of the suits. Supra-structural reformation such as development of codification and modernization of the enactments, introduction of new ways and methods of the dispensation of justice and initiation of right based approach in the process of the court is also equally important for delivering justice to the vast majority of the poor litigant people. So, the two folded reformation process must start and go in hand to hand. Reformation of such type is always a challenge and hindered by vested interested quarter. Therefore, the struggle for complete separation and independence of the judiciary does not stop in any point.
One of the striking backwardness of our formal justice system is that it is time consuming and very costly. Therefore, research based study and academic effort is also required for addressing the elements of delay disposal of civil suits and criminal cases. Translation of the findings of such study and academic effort into enactment is another challenging task for the reformation of the judiciary.
In this regard we must not forget to promote the means of informal justice systems that also serve the aim of ensuring justice for everybody. The traditional “Shalish” system in Begladesh , the “Ponchayet” system in Our Country and Nepal are the notable modes of informal justice delivery system. The indigenous people have their own legal system based on their own laws and regulations. The concept of Alternative Dispute Resolution, in short ADR, has also achieved momentum and public support at this stage of legal development. Now, it has also been used in the regime of international law. The concept of mediation, arbitration and conciliation have already been introduced in our legal system and now been received with huge applause by the litigant people and others concerned. Now it is required to establish the modes of ADR in our legal system with equal importance to the reformation of formal justice system. For that end, our procedural laws like Code of Civil Procedure and Code of Criminal Procedure are required to be amended with inserting mandatory provision of applying the modes of ADR.
To conclude, it can indeed be said that the judiciary of India has been entered into a new horizon of our legal history and legal jurisprudence. Legal and judicial reformation is a must for enhancing its capability to provide real justice and uphold rule of law, a dream set forth in our constitution. To that end, a holistic approach in adopting policy measures for legal and judicial reformation is essential on the part of the legal scholars, civil society organizations, the Higher Judiciary and the government.
Under our constitutional scheme, the power of framing laws is vested with the parliament or legislature. It is the supreme body that is supposed to exercise this power with great caution and sincerity. It is believed that the members of the parliament represent the common people and therefore, the desire and will of the common people reflects through the Member of the parliament in framing laws. Again this power of framing laws of the parliament is not unfettered; this power of legislature is subject to constitution and subject to the scrutiny of the Supreme Court of India , the guardian of our constitution. Parliament cannot pass a law which the constitution does not permit. Any law passed by the parliament contradictory to the fundamental rights as enshrined in the Part III of our constitution is ultra vires and every citizen has the right to move in the Supreme Court and High Court for challenging any law passed by the parliament. Instances are not few that our Supreme Court has declared laws passed by the parliament are ultra vires to the constitution. Unlike supremacy of the parliament in England, in our legal system we are experiencing supremacy of the constitution.
In the developed countries, reformation of the formal justice system is a continuous process. Because, they do not consider administration of justice merely a routine service delivery activities of the state but also deal it with the utmost importance and top priority. Independence of Judiciary is a pre-requisite of rule of law and good governance. Without independent judiciary, the constitutional aim of ensuring justice, equality and freedom remains unachieved and become farce to the powerless and underprivileged. Thus independence of the judiciary is made one of the salient features of our constitution by the framers of our constitution. The benefit of the separation is started to come to the litigant people who had to wait for long in the court veranda and premise for a minute long hearing of their petition or application. In order to gain the maximum benefit of separation, along with the process of independence, reformation of the judiciary is required to be integrated. Again, reformation is a wide term. It must include both infrastructural reformation and supra-structural development. Infrastructural reformation such as increase and development of the court building and number of the courts, court staff and judicial officers, logistics and training facilities of the judicial officers and use of science and information technology are essential for the quick disposal of the suits. Supra-structural reformation such as development of codification and modernization of the enactments, introduction of new ways and methods of the dispensation of justice and initiation of right based approach in the process of the court is also equally important for delivering justice to the vast majority of the poor litigant people. So, the two folded reformation process must start and go in hand to hand. Reformation of such type is always a challenge and hindered by vested interested quarter. Therefore, the struggle for complete separation and independence of the judiciary does not stop in any point.
One of the striking backwardness of our formal justice system is that it is time consuming and very costly. Therefore, research based study and academic effort is also required for addressing the elements of delay disposal of civil suits and criminal cases. Translation of the findings of such study and academic effort into enactment is another challenging task for the reformation of the judiciary.
In this regard we must not forget to promote the means of informal justice systems that also serve the aim of ensuring justice for everybody. The traditional “Shalish” system in Begladesh , the “Ponchayet” system in Our Country and Nepal are the notable modes of informal justice delivery system. The indigenous people have their own legal system based on their own laws and regulations. The concept of Alternative Dispute Resolution, in short ADR, has also achieved momentum and public support at this stage of legal development. Now, it has also been used in the regime of international law. The concept of mediation, arbitration and conciliation have already been introduced in our legal system and now been received with huge applause by the litigant people and others concerned. Now it is required to establish the modes of ADR in our legal system with equal importance to the reformation of formal justice system. For that end, our procedural laws like Code of Civil Procedure and Code of Criminal Procedure are required to be amended with inserting mandatory provision of applying the modes of ADR.
To conclude, it can indeed be said that the judiciary of India has been entered into a new horizon of our legal history and legal jurisprudence. Legal and judicial reformation is a must for enhancing its capability to provide real justice and uphold rule of law, a dream set forth in our constitution. To that end, a holistic approach in adopting policy measures for legal and judicial reformation is essential on the part of the legal scholars, civil society organizations, the Higher Judiciary and the government.
