This paper compares the system of justice in India with the system of justice in the United States. Although they are both democracies -- in fact India is the biggest democratic country in the world -- the two countries are quite different in their approach to formal justice. Moreover, the system of justice in India has been the subject of a great deal of criticism in recent years due to the corruption that has been found in the system.
Comparing the U.S. And Indian Justice Systems
The legal system in India is backed by the Indian Constitution and is a mix of "adversarial and accusatorial," according to the Loyola University in Chicago (LU). There is an attempt to respect both Hindu and Muslim jurisprudence and to "preserve the timeworn tenets of both" (LU). In rural areas of India, an informal system of justice (including distributive justice) is in place. The criminal justice system is an offshoot of the British system (England colonized India until Indian obtained independence in 1947 and became a sovereign democratic republic in 1950). The criminal justice system has four subsystems: corrections (prisons, jails), the Legislature (Parliament), enforcement (police), and adjudication (the courts).
The Indian constitution places the responsibility for criminal justice concurrently to the central government and the states. The two federal laws that take precedence over any legislation enacted by the states are: the Indian Penal Code and the Code of Criminal Procedure of 1973 (Country Listing). The Supreme Court of India has 18 high courts under it. Those arrested have to be "advised of the charges brought against them" and have the right to seek counsel and to appear before a magistrate "within twenty-four hours" after arrest (Country Listing).
The legal system in the United States is based on the U.S. Constitution, which has established a federal system of government. Specific powers are given to the national government and all power not delegated to the national government is given to the 50 states. Federal courts and state courts are quite different; the federal courts rule on cases related to federal statutes and state court systems (which vary in structure from state to state) rule on state statutes and cases appropriate to their regions. The U.S. also has four subsystems in the legal system: the courts, law enforcement, the legislation (the body that makes law) and corrections. Within each of those subsystems there are addition divisions of responsibility, but the basic four components of the American system of justice are the same as in India.
Those arrested in the U.S. (as in India) must to be advised of their rights and have the right to an attorney.
The biggest difference between the two systems of justice is the corruption and sluggishness of the Indian system.
India and Corruption in its Justice System
While there are certainly cases of corruption and incompetence within the U.S. system of justice, the widely publicized instances of corruption in the Indian system of justice is shocking. This section of the paper will focus on India's attempt to root out corruption and reform its tarnishes legal system. In the Global Corruption Report 2007: Corruption in Judicial Systems, India ranks number 8 in the world in citizen perceptions of corruption. The United States ranks number 30, according to the Transparency International organization.
Meanwhile, according to an article in The Times of India, the former Chief Justice of the Supreme Court of India "…certain individuals with doubtful integrity" have been promoted into the higher judiciary (TNN, 2011). Former justice JS Verma said in the article that a national commission should be put in place to ensure accountability and transparency within the Indian system of justice. The reason he offered that advice is that "…the wrong sort of person" has been elevated to the high court, and moreover the appointments made to the courts in India are "not as fair and transparent as made out to be" (TNN).
Another article in The Times of India (2007) reports that the U.S. State Department's annual report on terrorism has called the judicial system in India "…a hindrance to effective counter-terrorism measures" (TNN). The system of justice in India is "slow" and "prone to corruption," the U.S. report asserts. The Indian court system is faulty because law enforcement and legal systems are "outdated and overburdened" and as for terrorism trials, they "can take years to complete" (TNN). In specifics, the U.S. State Department sites the trials of the individuals responsible for the bombing incidents in 1993; the court took 13 years to "deliver judgment" in those attacks, The Times of India reports.
Indian legal reform advocate Prashant Bhushan -- who has been part of the Campaign for Judicial Accountability since 1991 -- has spoken out publicly about corruption in the courts of India. His recent interview with a news magazine -- in which he charged that "…out of the last 16 to 17 Chief Justices, half have been corrupt" -- resulted in a "notice of contempt" that was issued by the Supreme Court of India. In his response to the notice of contempt, Bhushan explained that the problem with the "higher judiciary" in India is not just the lack of accountability but also it is due to "…the virtual prevention of criminal investigation of judges" (Bhushan, 2009, p. 1).
Moreover, Bhushan contends, the system for making appointments of judges is blemished as well. He asserts that the Supreme Court Advocate-on-Record Association has made appointments to high courts "…arbitrarily and with complete lack of transparency" (p. 2). Bhushan further complains that the Supreme Court has "refused" to share any information about how judges have been appointed or transferred from one jurisdiction to another. Collecting evidence relating to judicial corruption is made very difficult because "…documentary evidence about corruption is rarely and only fortuitously obtained," Bhushan continues (p. 2). The written permission of the Chief Justice of India must be obtained prior to any investigation into legal corruption and hence, it is nearly impossible, Bhushan explains, to pursue investigations into corruption because the Chief Justice can block any inquiry from being carried out.
Bhushan insists that the courts will not increase their credibility by using the contempt of court jurisdiction to "…punish and thus stifle public criticism, however harsh, of the judiciary… [and] public confidence in the courts or judges cannot be maintained by seeking to silence outspoken criticism…" of the judiciary (p. 3). Bhushan points to several specific cases that he asserts are examples of corruption in the Indian courts. Among those examples he cites the case of Vedanta Resources of the UK, which sought to clear-cut.606.749 hectares (about 1,500 acres) of forest land for mining bauxite and 58.943 hectares (about 145 acres) of forest land for an aluminum refinery. The tribal peoples living in these forests argued (through legal counsel) that the water, wildlife and the environment that they depend on will be ruined because of the clear-cutting and the pollution that will be caused by the mining and refinery activities.
In the process of deciding this law suit against Vedanta Resources (a company which had been blacklisted from Norway for corrupt activities), it was made known that Justice Kapadia owned shares of stock in Sterlite (a partner in the project with Vedanta). In a case like this Justice Kapadia should have stepped down from the proceedings. According to the Indian Code of Conduct of Judges, Kapadia should have recused himself immediately. He didn't. That, Bhushan asserts, is just another example of corruption. Bhushan also objects to the way the native peoples were simply shoved aside when they hired an attorney to argue their case against the despoliation of their environment so that a company from England could produce aluminum.
In 2003, under the auspices of the Government of India, Ministry of Home Affairs, the Committee on Reforms of (the) Criminal Justice System put together research and a report on how to reform the much-noted corrupt system of justice in India. Headed by former Chief Justice V.S. Malimath, the report is candid and accusatory. On page 4, the report asserts:
"It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other. This has encouraged crime. Violent and organized crimes have become the order of the day" (Malimath, 2003, p. 4).
When the Committee on Reforms sent out a questionnaire to all the High Courts and judges but did not get responses, the Chief Justice of India demanded that the High Courts respond appropriately, and in time those courts did respond. The report states that "…the precious fundamental right" of justice "is turning out to be a mere pipe dream to many millions to whom justice is delayed, distorted, or denied…" which is a violation of the Indian Constitution (Malimath, 10).