By the 1850s, Courts in India already had native lawyers and native judges at the lower level. The Appelate Court and the District Court were however presided over by English judges. With cases increasing in number and complexity, opinion slowly gained ground that the participation of native lawyers and judges in the legal process was desirable.
The paper, “Indian judges, British and native” ( page 277) in the book, “ The Edinburgh review or critical journal, volume 130-1" published in the year 1869 discusses the wisdom of getting native judges appointed and whether they had the capability to cope with the task entrusted. The intention of the British judiciary to ensure that local nuances were properly considered and to render justice comes through very well. Here is an extract.
With the hope of contributing something to the successful accomplishment of this object, we will try to estimate the natural aptitude of a native of India for a legal career, and the mode in which that aptitude may be most successfully trained for use in the public service.
Nothing is more marked in the present intellectual condition of India than the avidity with which natives take to the study of the law. There seems to be the same general dislike to the study of the physical sciences according to the method pursued by Europeans as there is said to have been in Europe in the age which immediately succeeded Bacon. But every native is eager to study law. This is intelligible enough. Besides that already it opens to them a career by far the most lucrative and honourable of any which they can select, it exercises largely that keenness of intellect which is the pride and ornament of the Hindoo mind.
A Hindoo revels in a legal argument. He delights in fine distinctions, in minute verbal criticism, in picking his way through a long subtle argument. Nor let anyone doubt the value of this intellectual capacity. It is quite true that it is a capacity which may easily enough degenerate into a fault. It is quite true that Hindoos are prone to an excess of subtlety. But law, if rightly taught, is just the study which of all others restrains while it exercises this dangerous power. There are sciences more subtle than law; there are sciences of which the conclusions are more forcible and weighty. But there is perhaps none in the scientific conclusions in which there is such a union of force and subtlety.
That, if properly educated, natives of India might become in the highest degree eminent, not only as forensic disputants, but as sound lawyers, we have not the least doubt.' Nor can it be well denied that could we bring this intellectual power into full play upon the administration of justice in that country, a great advance might be achieved. Could we once combine in the judge a masterly knowledge of law with a deep insight into the manners of the people, we should surely sweep away that mass of trickery and fraud which in India destroys titles to property, swamps innocent persons in liabilities which they never incurred, deprives men of their just duos, paralyses the strong and oppresses the weak.
Why do the present judges of India stand so helpless in the face of all this? The answer is simple. They do not understand their business. They see the fraudulent result, and strive to prevent it. They may succeed for the moment; but by some clumsy device which does not go to the root of the evil, and which very often only suggests a contrivance for some new villany. Successfully to cope with the cunning devices of fraud requires indeed a judge of skill and experience. But even skill and experience are not alone sufficient. The judge must also have such a scientific knowledge of law as will enable him to comprehend the question he has to decide in all its parts and all its relations, to foresee new combinations, and to provide for new results. Like the surgeon, he must have knowledge to discover as well as skill to remove; and further knowledge to assure himself that the cure is complete. Let him fall short at any point, and he is but a bungler after all.
Not only in the administration of the law, however, but in legislation also, native jurists will run the English hard. They start here, as elsewhere, with great natural advantages. Hindoos and Mohammedans understand better, at any rate, than Europeans, the ground upon which they are to work. Law is never dead. The growth of it and the conditions favourable for its development are just beginning to be understood, owing in a vast degree to the genius and learning which Mr. Maine has applied to this subject. If the matter is left to English lawyers or English legislators, we can see what will happen—they will be ever trying to thrust upon this country their crude English notions, just as they are—antiquated, anomalous, and obscure.
What have Hindoos or Mohammedans to do with opposed systems of law and equity, with trusts, with interests vested and contingent, with freehold and leasehold, realty and personalty, reversions, remainders, estates for life, and estates of inheritance? These terms and distinctions are founded on notions almost exclusively English; they are bound up exclusively with the development of law in England; a development which stands alone and which is marked out as peculiar even in Europe. A pretty piece of patchwork we shall make by sticking these notions on to Hindoo law! No—the law of India, like every other law, must be grown from its own stem. Prune it, cultivate it, train it as you will; but it must remain the indigenous plant.
1) It this,as appears to be, was the thinking behind native Judges, it explains the European thinking behind repeal of Ilbert Bill in 1883.
2) Wonderful blog. Please keep such articles coming.
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