Administration of Justice in India:- A Perspective on Swaraj, Empowerment and Self-Governance

Keywords:- Dharma, Indian Jurisprudence, Punishment, Swaraj

Mode of Citation:- Bluebook Citation Style, 19th Edition.

The evolution of Criminal Laws in India, from the formalised laws as introduced by the British in the form of The Indian Penal Code enacted on 6th October 1860 and the Code of Criminal Procedure on 1st April, 1974; have witnessed a major change throughout the years. Recently, with the repealment of both the aforementioned criminal laws, as well as the Indian Evidence Act of 15th March, 1872 being replaced as early as July 1st 2024 with the onset and enactment of the three new criminal laws (The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam), Various students and legal practitioners questioned the validity and causation behind such an act by our Hon’ble Members of Parliament.

Ultimately, from a jurisprudential lens, It is imperative to delve into the origins of criminal laws themselves, in order to examine their emergence and need for enforcement. From a Swaraj-ian Perspective, the need of a system allowing for self-rule, by itself, necessitates the existence of a steady mechanism to adjudicate and punish offences that may be committed. The psychology behind the emergence of laws, as many state, is not to display punitive control, but rather, to establish order within social frameworks. In a practical lens, the ideal of swaraj guarantees the right of our own people to administer justice, punish, formulate laws, make changes, participate in and ultimately, run our justice systems. Swaraj entails all and complete freedom of rule over social frameworks, best suited to the Indian scenario, keeping in mind our own indigenous perspectives and systems of ancient rule. Unfortunately, the methodical and organic development of Indian Perspectives were impeded by a string of foreign invasions and repeated changes in the political system.

The English Common Law, which was introduced to us, or rather, imposed upon us by the colonial rulers is credited with providing the foundation for the Indian legal system. Therefore, it goes without saying that when learning about the history of law, one only comes across Western notions of jurisprudence. In addition to being linked to India's fast westernization and cultural decline, this trend has made Indian students and legal professionals feel inferior.

From a Bharat-ian Perspective, the concept of Dharma is said to be the highest ideal of human life. 'Dharma' in a literal sense means “something which sustains or upholds” and is a Sanskrit noun derived from verb (धृ) ‘dhru’ which means “to hold”. It is that form of law, rules and customs, the way they were perceived in ancient Indian society. In contradiction to general opinion, Dharma does not mean religion nor supports any, rather, is an entire body of rules and beliefs including in itself, but not limited to religious rights, rules of conduct and duties; it is applicable to all religions. Dharma means duty in various contexts. It could mean religious duties or social, legal and spiritual duties. Dharma means (1) Law, usage, norms or custom (2) Moral merit or virtue (3) Duty (4) Right, Justice (5) Piety (6) Morality (7) Nature and (8) Essential quality. Dharma has many sources such as Shruti & Smruti and is primarily based on Moral laws, i.e. Good conduct (sadaachaar) which governed the lives of people in the ancient times. Dharma was a duty based legal system i.e. each person owed a duty to others in society.

“Law is not a command, it is the cream of dharma and is a conscience of society, which results in the law.” - The Hon'ble Supreme Court in Maneka Gandhi vs UOI

One of the oldest legal systems in the world is the Bharatiya Nyaya system. The idea of "natural justice" permeated every piece of legislation. The foundational concept of ‘Dharma’ in Indian Jurisprudence stands in strike contrast with the Austinian Concept of Laws, as John Austin defined Law as, “Law is the aggregate of the rules set by men, as political superior or sovereign- to men as political subject.” or, “Law is the command of sovereign. It imposes a duty, and duty is backed by a sanction”. This ideal of the ‘Divine Command Theory’ has been criticised many times, with a common notion being that it considered the ‘political superior’, likely the king, as the only divine source of law, leaving no room for questioning. On the other hand, this theory fell in the Indian context. The Ancient Hindu view stated that ‘law’ is the command of God and not of any political sovereign. Everybody, including the ruler, is bound to obey it. Thus, 'law’ is a part of “Dharma”. The idea of “justice” is always present in the Hindu concept of law.

Additionally, The Austinian Theory was largely credited as being flawed in the Indian Context, as it contended that the King was the ultimate sovereign. However, the king himself was also subject to the same punishment in India (धर्म- दंड) which showed that the king is not absolute. For instance, the Mahabharata lays down that "A King who after having sworn that he shall protect his subjects fails to protect them should be executed like a mad dog." The idea of Dharma as the Natural Law holds that God and nature are the reason why law exists. The law is found in the scriptures known as Shrutis and Smrutis. The king's role was to simply carry out the law, to which he was subject.

दण्डः शास्ति प्रजाः सर्वा दण्ड एव अभिरक्षति । दण्डः सुप्तेषु जागर्ति दण्डं धर्म विदुर्बुधाः ॥ ४/१८ ॥

"Punishment governs and controls all subjects; Punishment alone protects them; Punishment remains awake while all are asleep; hence the wise regard Punishment as dharma itself." -Manu (Manu Smriti)

The Existence of Punitive Relief, under Jurisprudence is highlighted by the existence of a few theories which outlay the foundation behind the psychologies of ‘punishments’. Examples include the Deterrent, Retributive, Compensatory, Preventative and Reformative Theories of Punishment. The Psychological basis behind the enforcement of the various types of punishments in the justice system today stands on the fact that “humans are fickle beings”.

“It is much safer to be feared than loved because love is preserved by the link of obligation which, owing to the baseness of men, is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails” ---Niccolò Machiavelli, The Prince (Chapter 17)

The most widely used definition of justice is an ideal that stands for something that is just and proper. It essentially means being fair, impartial, just, and correct. According to the natural law school of jurisprudence, justice entails the application of religious laws. In the past, justice was associated with religion and morality. However, contemporary jurisprudence asserts that justice entails the application of ideas such as equality and liberty. As a result, justice in the contemporary sense mostly refers to the acceptance and application of laws passed by legislators, a role that is primarily performed by judicial organs.

REFERENCES:-

1. Three New Criminal Laws, KPMG (Feb. 18, 2025), Link
2. Shantanu Rathore, Thought on Dharma and Law, Symbiosis Law School, Noida, Bhavan Journal, Vol. XX No. 1, 123 (1973) Link
3. Schools of Jurisprudence – Concept of Dharma, Toppr.com ( Feb. 18, 2025), Link
4. Maneka Gandhi v. Union of India, AIR 1978 SC 597
5. Meaning, Nature and Functions of Law, University of Kashmir (Feb. 19, 2025) Link
6. The Nature of Law, Desi Kanoon (Feb. 19, 2025), Link
7. Executive Programme Examination June 2021: Jurisprudence, Interpretation & General Laws, Institute of Company Secretaries of India, (Feb. 19, 2025) Link
8. Mahabharat, Anushasan Parva (61.32-33)
9. Ganganatha Jha, Manusmriti with the Commentary of Medhatithi, Wisdom Library,(Feb. 20, 2025), Link

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organisations, governments or institutions.

Authored by Anushree Jha, A Student of BBA-LLB (Hons.)

University of Mumbai, Thane Sub-Campus.