Ronith Banerjee1
Before
the colonial time frame, Monarchy is broadly acknowledged in India. In that
model, King has amazing power and every judgements and laws of legal framework
acknowledged and dismisses by him for the state. After the rise of British by
the name of East India Company, everything began to change gradually and the
entire model of single headed power went into hierarchical power. After India
got independence, the British India legal system (BILS) and Indian legal system
(ILS) however not changed. A tremendous part of BILS still there in our ILS,
some are immediate which individuals can follow out and some are backhanded
which is difficult to follow or track down.
Suffered
or Benefitted
As
the coin has two confronts, same way this ILS has two face. Name of the two
countenances are suffering and benefitting. As Upendra Baxi specified in his
paper wrote about the sufferings because of colonial legacy the same way Skuy
by implication shows how this framework benefited us. First I want to show how
this legal system manages to make a step towards ‘rule of law’1. The
pandits and Maulwis were an integral part of indigenous or conventional legal
framework. They portrayed and accepted numerous ethics and norms which today we
accept as superstitions for eg Sati Pratha. This model is gradually replaced by
the English model of legal system what I believe is the finest step in the
world of legal system and after Independence if again we had taken that model
of pandits and maulwis, then there is a high risk that today I don't have the
privilege to write this type of paper. There are no written rules, regulations
and laws by pandits and maulwis, so thinking about ‘Rule of law’ in this place
is just like believing the Sun rises from west. Today due to colonial legacy we
are living in the time period of ‘rule of law’. According to Article 14 of
Indian constitution everyone is equal before law and equal protection of the
law2.
1)Rule
of law means, equality in front of law and law is for everyone. (K. Lipstein,
'The Reception of Western Law in India,' International Social Science Bulletin
g (1957): 87, 88, 91)
2)www.constitution.org>cons>india
Now,
I am coming to the sufferings due to the legal model which is the outcome of
colonial legacy. The first and fore most is 1) unable to access law, 2) Paying
for justice, 3) Top down approach.
Unable
to access Law
‘Unable
to access law’ doesn’t mean that a person can’t access courts and legal
agencies. What really it implies that individuals don't have a clue about the
law, they don't know when to go to the courts, they are unaware of the laws,
rules which are mentioned by legislative or by courts. One illustration is
given by Baxi i.e the privileges of bounded labour or contract agriculturist.
Not a single farmer or labour has read or know the laws made for them this also
means that he/she can’t access the law for his/her own equity. I additionally
want to give a recent example of this i.e. Narmada Bachao Andolan. In Narmada
Bachao Andolan the tribal were ignorant in the event that they have the ability
to express their feelings of hatred or not, would they be able to battle
against the administration for their displacement. Emergence of the
intellectual and educated people in that framework, make them mindful that yes
they have the privilege to battle against this bad form. This incident shows
how the people are unaware of laws. Paying for justice
This
problem is illustrated by Upendra Baxi in the paper ‘the crisis of the Indian
legal system’. In the colonial time frame the casualty or the general
population who look for justice from court needed to give charges for that.
After the independence, still individuals need to pay a gigantic measure of
expenses just to get justice from courts. Due to the change in BPL concept and
the concept of poverty those BPL who needed the legal aids badly are also not
getting. I just want to give one example related to that: - in everyday life we
are witnessing injustice with many people, why underprivileged class people
always have to do movements for their justice (recent case of the movement done
by garments worker in Bangalore) why they don’t have faith towards the way a
legal system works. There might be many reason but in them the most justified
reason is for their justice they have to pay, and they don’t have that much to
pay.
Top
down approach
This
point could be linked to the points I have mentioned earlier, according to Baxi
the intellectual elites and so called elected representatives (bureaucrat and
ministers) have the power of making law. Due to that, the underprivileged class
unaware of the laws made for them. The laws are also not practical in some
basis because these people bureaucrat and ministers are unaware of that. This
top down approach is also the reason for ‘unable to access law’. One of the
example of this top down approach is Sedition charges. Naxalites who were
fighting for their own existence are charged with sedition. They are the
basically belong from underprivileged class. This sedition charge was in
colonial legacy and still continues. Sedition charge meant to protect the
intellectual elites.
Conclusion
Hence as I mentioned earlier
every coin has two face, I just want to show these two faces of that coin. The
colonial legacy has helped our legal system to form and work, but it also has
some limitations. We have to think how these limitations can be withdrawn from
the existing model. So, that this model can work more feasibly. What I believe
is that, this model of legal system is far better than the model of our
traditional and indigenous legal model and by replacing these limitations this
model has the potential to give its best. (1088 words)
References
·
Skuy,D(1998) ‘Macaulay
and the Indian Penal Code of 1862: The Myth of the Inherent Superiority
and Modernity of the English Legal
System Compared to India's Legal System in the Nineteenth
Century’,32(3):513-557, Modern Asian Studies, University
of Toronto
·
‘The colonial nature of
Indian Legal system’ Upendra Baxi.
·
‘Ideas of India’ Ram
Chandra Guha.
1M.A.
Student, Azim Premji University
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