CHANGING CONCEPT OF JUSTICE

IN INDIA
By- Akhshat Pandit

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 BIBLIOGRAPHY

1. http://www.barcouncilofindia.org/about/about-the-legal-profession/
2. http://shodhganga.inflibnet.ac.in/bitstream/10603/67805/6/06_chapter% 202.pdf
3. http://shodhganga.inflibnet.ac.in/bitstream/10603/7888/9/09_chapter%202.pdf
4. http://www.legaleraonline.com/articles/evolution-of-the-indian-legal-system

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 Changing Concept of Justice in India.

I) Introduction to Basic Concept of Justice

Taken in its broader sense, justice is action in accordance with the requirements of some law.
justice, means the fulfilment of the legitimate expectation of the individual under laws and to
assure him the benefit promised therein.
Some maintain that justice stems from God's will or command, while others believe that
justice is inherent in nature itself. Still others believe that justice consists of rules common to
all humanity that emerge out of some sort of consensus. This sort of justice is often thought
of as something higher than a society's legal system. It is in those cases where an action
seems to violate some universal rule of conduct that we are likely to call it "unjust."

In its narrower sense, justice is fairness. It is action that pays due regard to the proper
interests, property, and safety of one's fellows. While justice in the broader sense is often
thought of as transcendental, justice as fairness is more context-bound. Parties concerned
with fairness typically strive to work out something comfortable and adopt procedures that
resemble rules of a game. They work to ensure that people receive their "fair share" of
benefits and burdens and adhere to a system of "fair play".
The principles of justice and fairness can be thought of as rules of "fair play" for issues of
social justice. Whether they turn out to be grounded in universal laws or ones that are more
context-bound, these principles determine the way in which the various types of justice are
carried out. For example, principles of distributive justice determine what counts as a "fair
share" of particular good, while principles of retributive or restorative justice shape our
response to activity that violates a society's rules of "fair play". Social justice requires both
that the rules be fair, and also that people play by the rules.

People often frame justice issues in terms of fairness and invoke principles of justice and
fairness to explain their satisfaction or dissatisfaction with the organizations they are part of,
as well as their state or government. They want institutions to treat them fairly and to operate
according to fair rules. What constitutes fair treatment and fair rules is often expressed by a
variety of justice principles.

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The most fundamental principle of justice that has been widely accepted since it was first
defined by Aristotle more than two thousand years ago is the principle that "equals should be
treated equally and unequals unequally." In its contemporary form, this principle is
sometimes expressed as follows: "Individuals should be treated the same, unless they differ in
ways that are relevant to the situation in which they are involved." For example, if Jack and
Jill both do the same work, and there are no relevant differences between them or the work
they are doing, then in justice they should be paid the same wages. And if Jack is paid more
than Jill simply because he is a man, or because he is white, then we have an injustice a form
of discrimination because race and sex are not relevant to normal work situations.

There are, however, many differences that we deem as justifiable criteria for treating people
differently. For example, we think it is fair and just when a parent gives his own children
more attention and care in his private affairs than he gives the children of others; we think it
is fair when the person who is first in a line at a theater is given first choice of theater tickets;
we think it is just when the government gives benefits to the needy that it does not provide to
more affluent citizens; we think it is just when some who have done wrong are given
punishments that are not meted out to others who have done nothing wrong; and we think it is
fair when those who exert more efforts or who make a greater contribution to a project
receive more benefits from the project than others. These criteria need, desert, contribution,
and effort we acknowledge as justifying differential treatment, then, are numerous.
On the other hand, there are also criteria that we believe are not justifiable grounds for giving
people different treatment. In the world of work, for example, we generally hold that it is
unjust to give individuals special treatment on the basis of age, sex, race, or their religious
preferences.

II) Evolution of The Concept of Justice.

The concept of justice is often treated as a timeless idea or ideal. Thinkers have presented as
an immutable standard in the light of which we are to judge individual actions and cases,
legal systems and social arrangements. Yet the concept of justice is itself the subject of
competing interpretations and demands.

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At different periods of history, in different societies and within the one period or society there
are sharply divergent conceptions of what is just, fair or equitable. The struggle for justice is
an unending historical struggle and that the struggle is socially conditioned.

For instance, we can be reminded of various forms of discrimination, such as racism and
sexism. Eventually, we will think about various movements for greater social justice and
realize that there are different approaches to the concept of justice. Then we become aware of
the fact that the concept of justice has played a very important role as a mechanism of social
control and evolved along with the dominant ideology of the time, accordingly framing how
the majority of the population think about the nature of and their places in society.

The dominant concept of justice has always been at the core of the dominant ideologies held
by the total of the population of any given society thus creating an encompassing agreement
between its members. As it evolved throughout history, this concept of social justice, as well
as the mechanisms of administering justice in a society, provided the basis for society’s
legitimization. Social justice is rooted in the cultural history of a society, exerting a
normative influence on the beliefs of the overwhelming majority of the people about how
goods should be distributed. The nature of these beliefs about what is just is based upon the
deeper cultural values that have developed in a society’s cultural history.

The ideological foundation of our current understanding of social justice stems from cultural
perspectives shaped by the latest developments of the industrial era: the rise of industrial
production of goods and services, mass consumption, and the heritage of the socialist
revolutions and civil rights movements. The rise of capitalism fueled the problems of wealth
distribution, and the socialist ideologies have created a myth that gave rise to the
redistributive ethic.

The concept of justice is not static. With the changes in the society, the concept of justice has
also changed from time to time. Justice is an evolutionary concept.

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III) Indian Justice System

Law in India has evolved from religious prescription to the current constitutional and legal
system we have today, traversing through secular legal systems and the common law.
India has a recorded legal history starting from the Vedic ages and some sort of civil law
system may have been in place during the Bronze Age and the Indus Valley civilization. Law
as a matter of religious prescriptions and philosophical discourse has an illustrious history in
India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile
field enriched by practitioners from different Hindu philosophical schools and later by Jains
and Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court
systems for civil and criminal matters were essential features of many ruling dynasties of
ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and
the Mughals (16th – 19th centuries) with the latter giving way to the current common law
system.

 Ancient Times

The discussion about the concept of justice will not be complete without reference to
the ideas of philosophers of ancient India.
The various sources of law relied upon by the kings at that time were shrutis, smritis,
puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were
influential treatises in India, texts that were considered authoritative legal guidance.
Ancient India represented a distinct tradition of law, and had a historically
independent school of legal theory and practice. The political structure in the Vedic
Period consisted of kingdoms, each tribe forming a separate kingdom. The basic unit
of political organization was the kula (family). A number of kulas formed
a grama (village), Gramani being the head. A group of gramas formed a vis (clan) and
a number of vis formed the jana (tribe). The leader was Rajan (the Vedic King). The
king (raja) was the supreme head of the legislative, executive and judiciary branches.
The members of the council of minister could give advice to the king, but final
decisions were left to the king. The ministers and other officials were directly

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 appointed by the king. The sabha and the samithi were responsible for the
administration of justice at the village level.
The word Dharma is used to mean justice (Nyaya), what is right in a given
circumstance, moral, religion, pious or righteous conduct, being helpful to living
beings, giving charity or alms, natural qualities or characteristics of properties of
living beings and things, duty, law and usage or custom having the force of law, and
also a valid Rajashasana (royal edict)

 Medevial Times

The ideal of justice under Islam was one of the highest in the Middle ages.
The administration of justice was regarded by the Muslim kings as a religious duty.
Sources of Islamic Law are divided into Primary and Secondary Sources.
Quran is the first and the most important source of Islamic law. It is believed to be
the direct words of God as revealed to Muhammad through angel Gabriel in Mecca
and Medina. Muslim jurists agree that the Quran in its entirety is not a legal code.
Sunna is the traditions or known practices of Prophet Muhammad, recorded in
the Hadith literature. Quran justifies the use of Sunna as a source of law.
Ijma and Qiyas are the secondary sources of Islamic law. There are 72 Muslim sects
in all with the Shia sect being the most popular in India
Under the Moghal Empire the country had an efficient system of government with
the result that the system of justice took shape. The unit of judicial administration was
Qazi. Every provincial capital had its Qazi and at the head of the judicial
administration was the Supreme Qazi of the empire (Qazi-ul-quzat). Moreover, every
town and every village large enough to be classed as a Qasba had its own Qazi.
During this period, the personal laws of the non-Muslims were applied in civil
matters, but the criminal law was the Islamic in nature. Whenever there was a conflict
between Islamic Law and sacred laws of the Hindus, the former prevailed.

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 British India

The common law system – a system of law based on recorded judicial precedents-
came to India with the British East India Company. The company was granted
charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay
and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of
the company expanded substantially after its victory in Battle of Plassey and by 1772
company’s courts expanded out from the three major cities. In the process, the
company slowly replaced the existing Mughal legal system in those parts.
Following the First War of Independence in 1857, the control of company territories
in India passed to the British Crown. Being part of the empire saw the next big shift in
the Indian legal system. Supreme courts were established replacing the existing
mayoral courts. These courts were converted to the first High Courts through letters
of patents authorized by the Indian High Courts Act passed by the British parliament
in 1862. Superintendence of lower courts and enrolment of law practitioners were
deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal. Cases before
the council were adjudicated by the law lords of the House of Lords. The state sued
and was sued in the name of the British sovereign in her capacity as Empress of India.
During the shift from Mughal legal system, the advocates under that regimen,
“vakils”, too followed suit, though they mostly continued their earlier role as client
representatives. The doors of the newly created Supreme Courts were barred to Indian
practitioners as right of audience was limited to members of English, Irish and
Scottish professional bodies. Subsequent rules and statutes culminating in the Legal
Practitioners Act of 1846 which opened up the profession regardless of nationality or
religion.
Coding of law also began in earnest with the forming of the first Law Commission.
Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal
Code was drafted, enacted and brought into force by 1862. The Code of Criminal
Procedure was also drafted by the same commission. Host of other statutes and codes
like Evidence Act (1872) and Contracts Act (1872).

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 Post Independence Period/Modern Period

The Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction
Act in 1949 to abolish the jurisdiction of the Privy Council in respect of appeals from
India and also to provide for pending appeals.

The present day judicial system in India is quite complicated. It consists of a

Supreme Court at its top, High Courts in the middle and the Subordinate Courts at the
bottom. On January 26, 1950, the Federal Court gave way to the Supreme Court
(inaugurated on January 28, 1950) under the new Constitution and thus began an
exciting new era in Indian Legal History. The Supreme Court, highest court of the
land enjoys a very wide jurisdiction. Under Article 131 of the Constitution the
Supreme Court has an exclusive original jurisdiction in cases arise from the centre
and the constituent States or between the States inter se. The Court even has appellate
jurisdiction in case of appeals from its lower courts. Under article 32 of the
Constitution the Court can issue directions, orders or writs for enforcement of the
fundamental rights granted to the people. The President in case of matters related to
public importance or treaties etc even seek the advice of the Supreme Court.
The Supreme Court is a court of record and it has the power to review its decisions.

Second in the hierarchy come the High Courts. As mentioned above the first High
Court in the country was formed under the Act of 1861. But after independence the
High Courts have also become the courts of record with appellate and original
jurisdiction. They have been conferred the power to issue writs. The High Courts have
superintendence over all the courts within its territorial jurisdiction. The decisions of
the High Courts become precedents and are followed by the courts subordinate to it.
Each State has its own High Court and a common High Court for two or more States
can also be made.
With respect to Subordinate Courts, the Judges are appointed by the Governor and is
controlled by the corresponding High Court.

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 Nyaya Panchayats are the judicial component of the Panchayat system and are the
lowest ring of our judiciary. Their composition and power differs from State to State.
They have jurisdiction over petty civil and criminal cases.
Part IV of the Constitution embodies the Directive Principles of State Policy. Under
this part, Article 40 lays down that the State shall take steps to organize
village Panchayats and endow them such powers and authority as may be necessary to
enable them to function as units of self - government. The Panchayats had been
discharging judicial functions since ancient ti me including during British rule.
Panchayats are at lowest rung in our judicial system dealing with petty civil and
criminals matters through informal and simple procedure with the endeavor to make
conciliation or compromise between the parties under dispu tes. Different State laws
had been enacted concerning Nyaya Panchayats having diversities of provisions
therein about its composition and power.

VI) Scope for Improvement

Even though there have been a number of positive changes taking place in the justice system
there is still scope for improvement,

Crimes against Women are still high in number which can be reduced not only by strict
implementation of laws but also gender sensitization programs which reduce the gender bias
further even in the backward and rural areas of the country.

Means for achieving justice for poor people including cost of hiring lawyers and proximity to
courts need improvement. This can be achieved by promoting the policy of free legal aid to
further backward areas and increase in the number of Lok Adalats.

VII) Conclusion

In conclusion, It can be said that the concept of justice in India has transformed and evolved
from being dominated by religion and a society with class divide to a free and egalitarian one
where justice can be gotten by all people irrespective of factors such as caste, gender, race,
class etc.

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