Legal Systems in India & America- A Comparative view

Legislative Chambers
 In the United States it is widely believed that while the Constitution makers conceived the U. S. Congress to be the most powerful institution, in reality it is the Executive under the President which has become more powerful. It is felt that United States Supreme Court has played a major role over the last two centuries in the expansion of the Executive power.  Two features distinguish the role of the Legislative Chambers in the United States and India; first is the role played by the Congressional Committees in exercising a far greater check on the exercise of executive power by the President; and the second is the voting pattern amongst the Senators and the Representatives which has occasionally crossed the party barriers and has assumed a pro or anti-President pattern.  It is felt that in spite of the President being elected for a fixed term and not being answerable to the Congress (as is the case in the Parliamentary System in India), the Congressional Committees have exercised a far greater control over the exercise of an executive discretion than can be said to be so in the case of the parliamentary committees in India. One of the reasons for this may be that while the President is permitted to hold the office only for two terms, there is no such .restriction in the case of the Chairmen of the Congressional Committees. Thus some of the Presidents (like James Witman who is the Chairman of Appropriation Committee) have seen as many as six Presidents and have continued to be the Chairman of a particular Committee for as long as forty years. They can by virtue of longevity of their tenure, exercise far greater influence and leverage over the successive Presidents.  The members of the House and Senate often vote independently and contrary to their party affiliations. This has also resulted in greater exercise of control over the Executive. Since 1960 there has been a proliferation of the Congressional Committees in a bid to reassert its superiority over the Executive. Each of the Committees has got subdivided into a number of subcommittees and its staff has increased manifold.  Another area of distinction between the functioning of the Legislative Chambers in India and the United States seems to be the extent of discretion of the Presiding Officers in the House and the Senate. According to the present practice, any Senator can move any motion and speak for any length of time. He is not even required to speak on issues germane to the Bill before the Senate. This has resulted in the Senate having acquired a popular name of "The Chamber of Anarchy". The Senators 'who themselves frame rules of procedure, have been extremely reluctant to compromise their freedom and have stubbornly refused to confer much discretion on the Vice President who chairs the Senate.  In an attempt to increase its role the Congress tried to control the budgetary privileges of the Executive. Under the Grahm Redman Act the Congress directed the Executive to cut back its expenditure and balance its budget. This Act was, however, struck down by the Supreme Court on the ground that laying down policy was an Executive privilege. It made a significant contribution in bringing the Cambodia and Vietnam wars to an end. In 1957 it passed a War Powers Act which required a Congressional approval within sixty days of sending of American troops abroad. One of the result of this is increased criticism and exposure of the Presidents on several issues and has left behind a trail of broken Presidencies.  It is amazing to find the United States Congress perform its functions in a far more effective manner than even the Indian Parliament to which the Executive is directly responsible.  People's CourtsÂ
 Elected Judges
 The most striking dissimilarity between Indian and American legal systems was the participation of people in their legal system. The practice of electing judges up to the level of the Chief Justice of a State Supreme Court in almost all the States, at first appeared to be a jarring note pointing in the direction of 'populist justice'. On talking to discover the strong points of their system. Chief Justice Gillatte of the Supreme Court of Oregon readily agreed that while the requirement of periodical election makes them feel uncomfortable and admitted that while rendering every decision they have to 'keep an eye' at the next election, yet, he asserted that it was better than having an appointed judiciary. The system of appointed judges, he felt, tends to insulate them from the main stream of general public, and they tend to become somewhat arrogant.  It was interesting to watch a vigorous campaign against Chief Justice Rose Bird who was running for re-election to the office of the Chief Justice of California State. Being a lawyer from a country where criticising a judge is considered taboo, I was shocked to learn that the California Bar Association had raised 10 million dollars to campaign against Chief Justice Bird at her re-election. I often saw a moving campaign against her on the television in which a lady would appear on the screen, display the photograph of her daughter who had been raped and murdered. The sentence of the murderer had been reduced by the Supreme Court of California from , death sentence to a milder imprisonment. The mother of the victim would ask the audience on the television "who was responsible for letting the murderer of my daughter walk free in the streets of San Francisco?" Thereafter she would point at the Picture of Chief Justice Bird projected on the screen. Chief Justice Rose Bird, of course, lost the election on November 2, 1986.  It is widely believed that it is almost impossible for a judge to get re-elected to the post in opposition to the Bar Association. The judges are required to spend huge amounts on their election campaigns and most of it is raised from the Bar.  Quite unexpectedly the judges in America seem to favour the system of re-election as opposed to the retention vote under the Missouri Plan. The judges feel that it is more difficult to face a retention vote under Missouri Plan than to contest against another candidate where the electorate has to make choice between two live candidates instead of saying 'YES' or 'NO' in favour of retention of a particular judge.  Chief Justice Douglas of the Minnesota Supreme Court categorically expressed himself against the power of appointment of judges being vested in the State Legislatures or in any other Committee because he was afraid that any other system of appointment would be far more political and dependent on party politics than the system of direct election by the people.  Seniority Amongst Judges
 I happen to talk to Mrs. Justice Sandra O' Connor of the United States Supreme Court about the recent appointment of a much younger and a junior judge as the Chief Justice of United States Supreme Court by President Reagan. Justice O'Connor appeared quite unconcerned about the supersession and replied; "Appointment of a Chief Justice is presidential prerogative and in any case we do not have any convention of either senior most judge or any other judge of the Supreme Court being appointed as Chief Justice." When I told her about the storm that was created in the Indian judiciary on the supersession of three judges of the Supreme Court of India at the time of appointment of Chief Justice Ray as the Chief Justice, she merely smiled and shrugged her shoulders by saying, 'It has not bothered us at all'.  Jury Trials
 The other aspect of American judiciary which has endeared the system to its people is the regular participation of citizens in the judicial process in the form of jury trials. It was fascinating to watch the trial courts being conducted in the most orderly fashion where each word uttered by the attorneys and the judges was being tape-recorded apart from being transcribed by a Stenographer. Each trial actually continues from day to day until it is concluded and non-availability of attorneys or the witnesses, for whatever reason, is not a ground for postponement. The public galleries were manned by court Officials also maintained perfect silence in the court room while the trials progressed from hour to hour and from day to day.  Emphasis on Trial Courts
 The Americans seem to have been at great pains in lending a place of pride to their judicial system. Even the lowest of the courts are furnished better than their Supreme Courts and are staffed better in terms of manpower. The equally large Libraries are provided to them which are equipped with most modern technology. The salaries of the trial Court judges are only about ten per cent lower than those of the judges of the Courts of appeal whose salaries in turn are no more than about six per cent lower than the salaries of the Supreme Court judges.  The emphasis on the trial Court in America is based oil the assumption that to build a common man's confidence in the judicial system it is most important to provide every facility and amenity for efficiency to the courts at grass roots. It is probably no coincidence that the United States Supreme Court seems to be the most modest in terms of its court house, decor and furnishing as compared to all the trial Courts that I visited in the State of Minnesota, California, Nevada, Arizona, North Carolina and New York.  Litigant Society
 Justice Penally of the California Supreme Court who had been at the Bench for about one year, informed me that the legal community played an extremely significant role in the American society. This could be judged from the fact in California State alone there were about 90,000 attorneys enrolled on the active list of the State Bar Association. Each of the judges is assigned a staff of about five lawyers and four students. The Legal Aid Society of the Court was spending about S 70,000 as the fee paid to lawyers appointed for defending convicts facing death penalty alone. Mr. Gambell, Administrative Director of the California Supreme Court complained that the work ethic of lawyers and judges were mainly responsible for the backlog of cases in their State. He cited the example of Los Angles where it takes about five years to select a jury and start a trial. The other reason for delay in the disposal of cases, as pointed out by him, was the cumbersome procedure for preparation of record which required every word uttered in the court to be taken down. Citing an example of Hillside Strangler's case, he told us that its transcript had run into 80,000 pages.  Training For Judges
 An interesting feature that came to light was the continuing education programme for lawyers and judges in America. Thirty, out of fifty-one States, are reported to have opted for a mandatory yearly examination required to be cleared by the the practising attorneys to keep them in touch with the latest developments of law. It is no longer fashionable for the judges to deny that they too require training. The National Judicial College runs special courses for judges of trial courts, appeal courts and Supreme Courts as well as for lawyers, legislators and court management personnel of varying durations.  Legal Malpractices
 The Disciplinary Committees of the Bar Associations which have exclusive jurisdiction to entertain mal-practices complaints against the lawyers are flooded with business. The California Bar Association itself received about 8,400 complaints in the last one year, but it would not give the statistics of number of cases in which the complaints were upheld. These committees maintain a Department of Investigation, Prosecution and a liberal fund for compensating the clients in mal-practice cases. Ms. Judie Barlo, in-charge of the California State Bar reluctantly admitted that they were already facing a threat that the power to decide complaints may be taken away from the Bar Association as the number of complaints in which action was taken were reported to be too low. But, she hoped that the lawyers who constitute a powerful lobby in the legislature would not let such a law come about.  The lawyers, however, did suffer a set back.  Tort Actions
 "America is facing a law suit crisis", said the U. S. Attorney General, when we called on him. 27,000 actions involving a total claim of 6,000 billion dollars were filed against the Federal or State Governments in one year. There has been a four hundred per cent increase in the tort actions since 1960. Illustrating his point, he told us that in Bigway Versus California State, one million dollar suit was filed against the Telephone Department because a person using a telephone at the Telephone Booth near a traffic point, was hit by a car driver who rammed into the telephone booth. The California Supreme Court upheld the tort action on the ground that it could reasonably have been foreseen by the Telephone Department that the user of telephone in such a booth could be hit and that it was negligent in having placed a telephone booth so close to the traffic point. In the case of Pearson Versus San Francisco College, an action for tort was upheld against the Police because accident had been caused by a driver with a stolen truck. The claim for damages against the Police was sustained on the ground that the Police had failed in its duty of preventing the theft and was, therefore, liable for the consequences. In the Hospital Mugging case a doctor was shot at in a dark parking lot. He sued the county for damages and compensation on the ground of their failure to have provided a well lit parking lot which facilitated the attack and that the county was, therefore, held guilty of negligence.  The Attorney General made a serious complaint against the manner in which the California Supreme Court has expanded a foreseeability rule which enlarged tort litigation crisis, the insurance rates were rising, the development activity was suffering and soon the State might find it difficult to continue with their social security, education and health programmes unless some reform was urgently brought by the State in this field. In the November elections, we found a campaign for and against such an amendment mounting. The lawyers who were alleged to have pocketed sixty cents out of every dollar that was awarded in such law suits got together to unitedly oppose 'proposition 51' which was ultimately approved by the voters in the State of California.  Grass Root Democracy
 The grass root democracy in the United States and in India is a study in contrast. Periodical elections of all the officials of the counties (whether urban or rural), which include the City Mayor, Police Chief, District Attorney, City Attorney, Judges etc., have made the administrative and political system subject to an effective control of the people. Each of these officials has to contest election every six years and any of these who happen to be appointed against a vacancy created in between the elections, has to face an election within two years. Election of these officials (more than the election of the Houses of Representatives and the Senates of their State and the Federal Government), is what makes America a real democracy. Election for all these offices takes place at one and the same time along with the Senate and House elections.  In India unfortunately the emphasis at grass root democracy has not been the same. While we have maintained the schedule for elections to the Central and State Legislative Bodies (barring once), elections to Local Bodies, Gram Panchayats and Co-operative Bodies have more often been postponed than held on schedule. While each party at the polls pledges timely elections to all these bodies, when they come to power they even forget to hold elections in their own party. Nominations to these bodies is a great allurement to the elected representatives for being able to consolidate their position instead of permitting the lower rungs to imbibe the juice of democracy.  Police And Bueaucracy
 In the American society, the people play a more effective role than the bureaucracy or the Police. While talking to the Deputy Chief of San Francisco, Chief Willis Casey, I learnt that the police had never (to the memory of Willis) opened fire to control a riot. He recalled that in Ohio the national Guards had opened fire in 1966 where the students were protesting, for which the Police had virtually been roasted by the entire nation. Since then the Police has not opened fire at any riot. According to him, they had received only four cases in one year complaining of use of physical force by the Police. Blacks Issue  One of the biggest contradictions of the American system that foxed me was as to how they could deny the democratic rights to almost half of their population for over a century and a half. This seems to be an irreconcilable conflict in the American history which casts a shadow on the glory of American Constitution. Their Constitution opens with the words 'We, the people.....'. Practically till 1960, the interpretation placed on these words meant, 'We the white people.....'. Till 1960 the blacks did not have the right to vote and were not considered "persons' or 'humans' under the law. Judge Giles, a black Judge of Philadelphia Federal Court told me that till then the blacks were like horses, cats or dogs — they were valuable but not persons. Even when the 13th amendment made slavery unlawful; 14th amendment made discrimination unlawful; and the 15th amendment conferred the right to vote, yet these rights remained a dead letter because it was contingent on owning property. The ideal of fair trial remained a far cry for them and the due process was a distant illusion. It took the Americans 170 years after they adopted their glorious constitution to realise that all humans are human.  Compare this against intellectual honesty of the Indian Constitution makers who provided for absolute equality for all, and the principle of adult franchise as the basis for our democratic system. Compare the concept of reservation of posts and other advantages for the deprived classes as an earnest attempt to right a social wrong of centuries. What America achieved 180 years after the adoption of the Constitution, was achieved in India on the first day of the Indian Constitution.

Author Name: K.T. S. Tulsi