National University of Study and Research in Law

Research Methodology

Book Review
ON
Indias Legal System: Can it be saved?

Submitted To-

Submitted by-

Dr. Partha Pratim Mitra,

Kanishka

Assistant Professor in Law & Assistant

Dean(Academic Affairs)

LLM, Semester I
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Indias Legal System: Can it be saved? By Fali Sam Nariman, Penguin Books, Penguin Group,
New Delhi, 2006, ISBN 9780144001057, Pages 173, Rs 200
Reviewed By Kanishka
Any review of the book Indias Legal System: Can it be saved will be incomplete without a
little introduction about the author i.e. Fali Sam Nariman. Being one of Indias most
distinguished constitutional lawyers, (Padma Bhusan 1991, Padma Vibhushan 2007, 25 Indian
living Legends NDTV) his greatness can be gauged by the fact he appeared in cases such as
Golak Nath [1], S P Gupta [2], T M A Pai Foundation [3] etc. From a person who started his
profession in 1950s. This book is a masterpiece as to what the great lawyer has come to think of
Indian Legal System. The book is infact a tribute which Nariman has to offer after almost
glorious 50 years of his legal practice as an advocate.
The title of the book itself is very interesting. It makes one wonder, as to what happened which
caused the author to choose such a title, for in no hindsight can a man imagine a situation in
which Indian Legal system is in any danger let alone the need of saving! To this the analogy
which one draws after reading the book is that the threat is not from any outside entity, but the
real danger lies within. The author has painstakingly tried to explain that Indias legal system has
become so overburdened and overpowered with inadequacies that it may start crumbling under
its own weight. To understand it in simple terms is like for a successful ride, any bicycle rider
must keep the bicycle in motion, for once the bicycle stops, the rider will fall not due to any
outside force, but due to its own weight.
The author begins the book by giving a detailed example of legal structure of ancient India i.e.
Manusmriti and the code of Yajnavalkya and the justice dispensed on basis of them. Then he
illustrates the gradual phasing out of native law with common law imported from England. This
is followed by authors description of system of Indian courts as to how the first British court
came to existence in India or how the charter high courts came to be established. Especially
noteworthy here is that being a lawyer himself, Nariman quite lucidly explains not only the court
setup but the early system of lawyers too such as Barristers and Attorneys which has been
discontinued now. This book seems as if it is providing its reader a time portal to travel in 1900s
and get a peep as to how the system of courts functioned in India back then. Expanding the same
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line of thought, the author then slowly uncovers the cause of his concern i.e. why the Indian
legal system has arrived in a state where it needs saving. He aptly points out that Between
1999-2001 on an average, about 50,00,000 crimes were registered in each year in the states and
union territories. One third of them were crimes related to Indian Penal Code, and the rest were
offences under special and local laws. Under the Code of Criminal Procedure as it exists today,
the investigation of all criminal offences is by police, whose principal duties are the maintenance
of law and order. The strength of the police force over the years (from 1995 onwards) has
remained at between 12,00,000 13,00,000, the almost stagnant figures of the strength of the
police force and the continuing increase in the number of crimes is indicative of a virtually
unmanageable workload [4]. Meanwhile the author is also quick to add that in India, not even
45% of people charged with serious IPC offences, including mob violence are ultimately
convicted. In other countries like the United Kingdom, France, the United States of America and
Japan, the conviction rate for similar officers is over 90%.[5] He then goes to point out that in
India, the sanctioned strength of Indian Judiciary i.e. the subordinate judiciary, the High Court
and Supreme Court of India is as, subordinate courts (Civil and Criminal- magistrates, civil
judges, sessions judges and District Judges) 12205; high court- 647 Judges, Supreme Court of
India : 26 Judges which is grossly inadequate. In addition to that the sentencing policy for any
crime in India is outdated and defunct, the Indian Penal Code section 53 provides for five forms
of punishment- death; imprisonment for life; simple and rigorous imprisonment for a period;
forfeiture of property and fine and there is nothing intervening between imprisonment and fine.
Some attempts were made in past in this regard to provide the judiciary with more arrows in its
quiver, but without success.[6] The Indian Penal Code Amendment Bill of 1972 suggested three
new forms of punishment: externment, compensation to victims and public censure. However no
progress was made on that. Subsequently, Indian Penal Code Amendment Bill of 1978 proposed
four forms of punishment: community service, compensation to victims, public censure and
disqualification from holding offices in certain types of cases. But sadly no progress at all was
made on this bill too. The lack of sentencing alternative not only limits the judiciary but also
embolden the guilty. In totality, the author is able to paint a very grim picture about the Indian
legal system.
Some are born great, some achieve greatness, and some have greatness thrust upon them, and
after reading the book, I can adamantly confess that Fali Sam Nariman surely belonged to the
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first category. Ingenious as he may sound, Nariman is one of the gems adorning the legal
profession today. It is true that criminal justice system of India is in tatters. All departments,
whether it is law enforcement, prosecution or judiciary are fraught with shortcomings and rife
with discrepancies. In India with all due respect to institutions, it appears as if only the law is
being followed, justice is not being done. My this inference follows from the fact that it took 18
years for the Uphaar Cinema trial to come to a conclusion, 12 years for the 1993 Mumbai Blast
victims to get justice and only god knows how many years will it take for the Bhopal gas tragedy
victims to get justice even after 31 years of incident.
Is It All Lost, Or Is There Any Silver Lining Left
But even in such a gloomy situation a ray of hope is still there. Incidentally, the ray of hope is
none other than the judiciary itself. It is not for the first time that judiciary of India is dwarfed by
such issues. And history bears witness that each time when such situation arose, the judiciary
answered by reinventing itself. Whether it be PIL or suo-moto-cognizance or even the basic
structure, it is almost magical rabbit out of the hat trick which not only redeemed the judiciary
but also enhanced its image of being the guardian of people of India vide the guardian of
constitution.[7] Surprisingly it appears as if the judiciary has finally found its weapon to save the
Indian legal system and that weapon is ADR i.e. alternate dispute resolution.[8] In this 21 st
century, ADR is the Bramhastra in the hands of judiciary, through which it can reinvent itself.
The ADR as an concept has outshined itself in countries like USA, UK and Australia. What is
really amazing is that ADR might be one single concept, but it encompasses a number of tools
such as Mediation, Arbitration, Conciliation, Lok Adalat etc. By bringing in ADR the biggest
stop will be on the game theory of justice. The justice delivery system in India no longer favors
the needy or victim but the more skilled. If you are able to pour in more resources and bring
more skilled manpower from your side, then you are sure to win your case. Thus the court
becomes an arena and the sole role of the judge becomes that of an umpire, where he helplessly
watches the needy getting demolished by the skillful.[9] Coming of ADR will commence a new
scenario as in ADR the emphasis is on providing both parties a win-win situation.
On the other hand, as the author has aptly pointed out, it is necessary that this effort of
overhauling the Indian legal system comes not only from the judiciary but also legislatures and
executive. One of the most grave concerns which have been found out that the level of legal
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literacy and legal awareness in this country is abysmally low. It is high time that citizen be made
aware about the rights they possess, and the remedy they have in case their right is infringed. In
light of India, special attention can be drawn to problems such as Maoism where dissatisfied
masses join the maoist rank and file as they are unable to get any respite from the state
machinery against the exploitation and suffering they have to bear. Providing legal awareness
will serve a two pronged strategy of not only providing justice to needy, but also checking the
misuse of power by an authority. Additionally there is urgent need of establishing new courts and
tribunals as well as increasing the number of judicial officers. The people to judges ratio is one
of the worst in India. Therefore if India wants to de-clog its judicial system and make it work
smoothly then these measures ought to be taken by executive as well as legislature.
The book is a masterpiece by an equally competent author. This book astonishes its readers by
appearing as if a prelude to even much more acclaimed and celebrated autobiography of the
same author i.e. Before Memory Fades.[8] The most clear demarcation which this book has
from Before Memory Fades is that in the latter, the spotlight was always on Nariman himself.
While in the former the central character is Indian Legal System with spotlight being on
Judiciary. The book serves to inspire awe and admiration for the author who has reached
pinnacle of his profession. By sharing his views and comments point blank, Nariman has
demonstrated as to why lawyers are one of the most celebrated professionals in India.
Recollecting past experiences, sharing old memories the author proves that below the black and
white uniform of a layer, there lies a heart full of emotions and which does care about ethics and
moral. In reality this book lies in league with equal masterpieces such as Ram Jethmalani
Maverick Unchanged by Ram Jethmalani, The Nature of the Judicial Process by Benjamin N
Cardozo. Like those books too, the author has used the book simply to pour into the pages his
observations and experiences topped with his acumen and wit. Books such as this or the Nature
of Judicial Process are not going to help anyone to pass their examination, rather it is going to
increase your depth and understanding of law as they are kind of post-mortem report of the
whole legal setup from the best doctors available. I would like to end the review by using one of
the best illustrations of the author itself that in this country of ours judiciary is the salt of the
earth. My wish for the third millennium is that if it please god, there be no occasion when it is
said that the salt has lost its savour, because as that Bible warns us, if the salt ever loses its
savour, then where with shall it be salted?
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References
1.
2.
3.
4.

Golaknath v. State Of Punjab, 1967 SCR (2) 762

S.P. Gupta v. Union of India, AIR 1982 SC 149
T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
Indias Legal System: Can it be saved? By Fali Sam Nariman, Penguin Books, Penguin

Group, New Delhi, 2006, Page 84

5. Indias Legal System: Can it be saved? By Fali Sam Nariman, Penguin Books, Penguin
Group, New Delhi, 2006, Page 85
6. Indian Penal Code, 1860
7. Available
at:
http://supremecourtofindia.nic.in/circular/guidelines/pilguidelines.pdf
(accessed on 27/09/2015)
8. Dispute Resolution, The Yale Law Journal Vol. 88, No. 5, Dispute Resolution (Apr.,
1979), pp. 905-909
9. Game Theory, Evolution, and Justice by Peter Vanderschraaf Philosophy & Public Affairs
Vol. 28, No. 4 (Autumn, 1999), pp. 325-358
10. Before Memory Fades-: An Autobiography by Fali S. Nariman Hay House India, 2010

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