Neglect Of Ancient Indian Legal Giants Like Manu, Kautilya & Adherence To Colonial Legal System Detrimental To Constitutional Goals : Justice Abdul Nazeer

Supreme Court judge Justice S Abdul Nazeer has a made call to "Indianize" the legal system by drawing inspiration from the ancient Indian legal philosophies and by getting rid of the "colonial psyche". He suggested that every Indian University must include Indian jurisprudence as a compulsory subject in Law degree courses."Great lawyers and judges are not born but are made by proper education and great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Yagyavalkya and other legal giants of ancient India. The continued neglect of their great knowledge and adherence to colonial legal system is detrimental to the goals of our Constitution and against our national interest", Justice Abdul Nazeer said.The judge was speaking on the 'Decolonisation of the Indian Legal System' at the 16th National Council Meeting of the Akhil Bharitya Adhivakta Parishad."A Colonial psyche persists in the administration of justice in the present day Indian legal system. The British colonialists protected their subjects only on the surrender of the rights to the rulers. In other words, Justice could not be demanded but rather it was allowed by the State as a matter of concession. This is in contrast to the ancient Indian legal systems, where justice could be demanded, being the concept that was inbuilt. Ancient legal systems of India even required kings to bend before the rule of law and justice could be demanded against the kin or even the king himself. Instead of this approach, the colonial mindset left behind by british colonialists is apparent from the manner in which pleadings are drafted in court today, the way in which the courts are addressed and more importantly, by accessibility to court itself", observed the judge."Today's justice is not demanded but prayed for in the humblest terms. Judges continue to be addressed as lordships and ladyships. The orderly litigant is often unable to bear the expense of pursuing litigation in distant higher courts, a practice which was introduced by the British colonials with the privy council", he expressed."Further, the mounting backlog of cases means that the judges are rendered helpless, even if they want to help the ordinary litigant. The huge case pendency means that it is the degree of injustice rather than the injustice itself which determines whether relief is to be granted by courts. That the law disregards trivial cases is also a part of the persisting colonial mindset", he continued."There can be no doubt that this colonial legal system is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system. The eradication of such a colonial mindset may take time but I hope that my words will evoke some of you to think deeply about this issue and the steps that need to be taken to de- colonise the Indian legal system. Even though it may be an enormous and time-consuming effort, I firmly believe that it will would be the endeavour which could revitalise the Indian legal system and align it with the cultural, social and heritage aspects of a great nation and ensure much more robust delivery of justice", urged Justice Nazeer."One must question what the future model of a legal system ought to be. The legal system does not operate in a vacuum. The administration of justice as a social function and this judicial and legal process is only a part of the larger social process. Therefore the courts of law cannot function in defiance or ignorance of the social objectives or the felt necessities of times. 'Justice must be done though the beams may fall', emphasises the impartiality of the judges but does not permit the judiciary to be indifferent to social needs. The role of the Indian judiciary cannot be isolated from the social objectives of our nation. Our Constitution has set forth the Indian people the ambitious goal of achieving a synthesis of the western and socialist way of life, individual liberty and social control, abolition of anarchy in production and preservation of democracy and of political and economic freedom. It must not be understood to mean that there is absolutely no political freedom in the western democracies. The difference is one of emphasis. Our Constitution attempts to achieve a balance between role of the State and rights and freedoms of the individual. It reflects the spirit of nonalignment in the field of constitutional law. Social control of industry is in accordance with the indian tradition. The State in ancient India had a huge public sector, and the Arthashastra prohibited such trade practises as cornering the market to raise prices. The Indian Constitution has set before our people a very ambitious and difficult goal. A Constitution is not a collection of abstract theories, nor does it operate in a vacuum. It reflects a way of life which enables a particular people to realise its objectives and ambitions. If it fails to do so, it will be amended or discarded by agreement or otherwise. To be able to...

Neglect Of Ancient Indian Legal Giants Like Manu, Kautilya & Adherence To Colonial Legal System Detrimental To Constitutional Goals : Justice Abdul Nazeer

Mehal Jain

"...colonial legal system is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system", the judge said.

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