Revamp Common Legislation Process in India

The full legal justice system must be replaced with a more workable system if victims of criminal offense are to get redressal. This is because we have mindlessly used the British common law system as the basis for our courts, which is why the Allahabad High Court docket refused aid to a beleaguered couple who was looking for security as the boy and woman belonged to various faiths. In Thane far too, a gentleman and lady from different faiths ended up stopped and questioned simply because they experienced gone out jointly, in a surprising violation of their basic rights.

Our common law system is based mostly on Article 372 which rests on two concepts — that of res judicata or finality of a judgment only in between warring parties, and stare decisis which implies future courts are certain by the reasoning of former decisions of the substantial courts and Supreme Courtroom, even if erroneous. If a court docket decides a circumstance concerning A and B, it is remaining as considerably as both equally are concerned until overturned by a superior courtroom. That is why the civil law system must supplant the common law scheme.

The common law system ties the hands of judges, leaving them minimal scope to do justice — apart from the reality that these judges have their individual inherent biases which are absurd and creep into their verbose and often unintelligible judgments. The truth that the governing administration has a decisive say in who will turn out to be a judge adds to the misery of the litigant for whom justice is a chimera. The simple fact that the Public Prosecutors are employees of the govt, which pays their salaries, adds to the misery of the victims of crime. Some of these prosecutors are both corrupt or incompetent and unprepared to argue versus hugely-paid out defence advocates backed by authorized teams.

This is why the adversarial system introduced by the British ought to be replaced by the inquisitorial system introduced by the Portuguese in Goa so that magistrates can request those accused of murder and rape inconvenient queries on the proof from them and make up their minds immediately. Portion 313 of the Prison Method Code need to be amended to enable magistrates to talk to the accused queries even ahead of the trial commences and at any phase of the proceedings, devoid of warning.

The cumbersome Legal Technique Code and Indian Penal Code must be entirely revamped to ensure it is person-friendly, even though at the similar time preserving the rights of the accused as very well as the sufferer. The present system protects only the accused though ignoring the legal rights of the sufferer, producing it extremely hard to safe convictions. The maxim of “Proving further than sensible doubt” need to be changed by “Impeccable evidence need to position at the guilt of the accused” mainly because all judges will forever have doubts about their judgments. Only silly criminals will go away behind proof to incriminate on their own with no even an try to wipe out it.

Regardless of the RSS and the BJP revamping the education system to glorify historic Hindu jurisprudence, tiny has been carried out to switch the about 160-yr-aged British legislation by present day guidelines suited to India. The ancient Hindu law-givers were being not absolutely dependent on the adversarial systembut devised their own procedures for speedy justice. People supplied in the Arthashastra are workable, even though other guidelines specified by Manu in the Manusmriti look misogynistic. 

Like the civil law system, the magistrate or decide should be provided powers to override the police investigation which is often motivated by a chief minister or other ministers. As a result, by directly asking the accused queries as to his whereabouts at the time of the occurrence, whether there was pre-present enmity among the victim and the accused, the justice of the peace can file these replies as evidence. Nowadays, the magistrate has to behave like an umpire at a tennis match with out having section in the proceedings. He is fully dependent on a prosecution which may be corrupt, negligent and will meekly do what the main minister tells it to do as evidenced in the Hathras rape situation in UP exactly where the minimal female was cremated devoid of the consent of her mother and father, and most of the alleged rapists have been acquitted. 

This author has himself professional his felony grievance dragging on in Goa for around ten years devoid of expenses becoming framed whilst, he has alleged, the former director of prosecutions in Goa has protected and promoted a impolite and incompetent assistant general public prosecutor to general public prosecutor by allegedly suppressing an previously grievance against him for delaying the demo against a Catholic priest accused of molesting a youthful woman at Ribandar in Goa who afterwards fled the country.

Innumerable law commissions have recommended amendments or substitute of our procedural legal guidelines but these research have not been implemented for the reason that our MPs have not even analyzed the suggestions which are neither binding on Parliament or on the Supreme Court, earning it a reduction of general public income to permit these law commissions to purpose. 

What is the require of the hour is making certain all our rules are derived solely from the Structure so they are completely divorced from spiritual dogma. Courts need to be authorized to interfere in matters of religion when there is grave injustice completed to a particular section of the neighborhood simply because Constitutional morality overrides spiritual benchmarks. 

But that is a desire which is nevertheless to be realised.

Olav Albuquerque is a senior journalist and advocate at the Bombay High Courtroom, with a PhD in law from the College of Mumbai

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