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

Mehal Jain

27 Dec 2021 9:41 AM GMT

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

    "...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.

    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...

    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 achieve the objectives of the Constitution of India, due regard must be had to the principles and practises of law which prevailed in India for centuries before the advent of colonialism", he stressed.
    The judge expressed regret over the casting of the ancient Indian legal system into oblivion by colonisers as well as in the present-day Indian legal system- "Despite such a rich tradition of highly sophisticated pre-existing legal system which was prevalent in India, foreign legal systems were imposed upon us with every invasion and occupation. Unfortunately, despite India returning to independence ever since 1947, many of the fundamental aspects of the Indian legal system have remained unchanged since the same were introduced and imposed upon us during the period of British occupation of India. This is despite the fact that India was the oldest judiciary in the world and no other legal system in the world has a more ancient or exalted Pedigree. As such, the colonial takeover of India's legal system, under the garb of absence of any pre-existing legal systems, was lamentable and it is tragic that the same colonial legal system is being continued in a large and changed manner even today in 2021".
    "Some of the facets of the exalted ancient Indian legal system can be observed in modern-day India's West dominated legal system as well. The principle of judicial independence did not originate with British rule. It was fully understood and enforced in ancient India. All the ancient Indian scholarly law-givers emphasised the supreme importance of that is being independent and fearless even of the king. After the attainment of freedom in 1947, the Indian judiciary has maintained the ancient Indian tradition of judicial independence and integrity. The Supreme Court has set the pace and its record of independence is 2nd to none in the world. The high courts too on the whole have maintained a high degree of independence, and cases of judges carrying favour with the executive are rare. The highest praise must go to our subordinate judiciary – the Munsif, the civil judges and district judges- who dispensed impartial justice between citizens of different communities and castes and whose record compares very favourably with that of the British judges who were not always impartial between Indian and British litigants. As such, Indian judges have lived up to the mandate of the ancient scholar Brihaspati who stated that the judge should decide cases without any motive of personal gain or prejudice or bias and decisions should be in accordance with the law prescribes by the text", commended Justice Nazeer.
    'Foundation of legal studies must be the study of Indian jurisprudence and every Indian university should include it as a compulsory subject with a Bachelor of Law degree'
    Justice Nazeer spoke of the weakness of the present legal system and the need for its decolonisation, underlining the absence of a theoretical heritage for modern Indian legal system due to shunning of the ancient Indian legal system- "The great weakness of our legal system today is that due to its divorcing from ancient Indian legal heritage, it lacks theoretical nourishment. The impact of theories of jurists, including ancient scholars, and the legal system of a country is profound even though it may be unseen and subconscious. The Supreme Court of India has also maintained that in determining whether any restriction or a fundamental right is reasonable. There is no abstract test of reasonableness and it is inevitable that the prevailing conditions at the time and the social philosophy and the scale of values of the judges should play an important role in determination of reasonableness"
    "In ancient India, the judge is required to be well versed in all branches of knowledge as well as jurisprudence and the science of government. But what about today? What is the legal and social philosophy on which the judges are brought up today? In England, western Europe and the US, the judges and lawyers have received constant inspiration and education from the jurisprudence of their civilisation which have been developing for centuries. Similarly, the judicial process in Russia derives nourishment from the Marxian jurisprudence which is constantly evolving. But where does the Indian judge or lawyer receive his inspiration from? Not from the jurisprudence of his own civilisations. He knows something of Roman law and the theories of western jurists but very little about the evolution of the law and jurisprudence of his own civilisation. The syllabus for the law degree in an Indian university does not include Indian jurisprudence or the theory of the state in ancient India or the history of Indian law. Consequently, our judicial process is an edifice constructed without theoretical foundations, rather on foundation supporting other structures in other lands", pointed out the judge.
    "To give an illustration, Manu prescribes public censure as one of the punishments for crime. This provision was even adopted by the Soviet criminal code but the Indian penal code, drafted by Macaulay, ignores it all together, though it can be an effective form of punishment in many cases. Evidently the Russian jurists had more regard of Indian jurisprudence than Indians themselves. The lower standard of legal and juristic studies in India today creates an urgent problem. On the one hand, our High Courts and Supreme Court are invested with the power to interpret the Constitution and declare any law or act of the state invalid on the ground that it is unconstitutional or illegal or restrictive of the fundamental rights of a citizen. The law declared by the Supreme Court has a binding supremacy throughout the territory of India, and its appellate powers are wider than those of any other federal court in the world. The interpretation of the Constitution and the adjustment of the rule of law with economic progress require judges a profound knowledge of jurisprudence and the social science and a capacity for applying the law of social evolution to judicial process. On the other hand, the standard of legal education in universities and laws is very poor. A poor legal education makes poor judges and jurists. The present disparity between the power and intellectual equipment of those who will be future judges creates a problem which can be ignored only at our peril", urged Justice Nazeer.
    "I am all in favour of our universities teaching the best that Western thought and science can tell us. But the almost complete neglect of Indian Jurisprudence and political philosophy leave the education of every Indian lawyer and judge incomplete. I have come to the conclusion that the foundation of legal studies must be the study of Indian jurisprudence and every Indian university should include it as a compulsory subject with a Bachelor of Law degree", he recommended.
    'Absurdities of western legal system absent from ancient Indian legal system; The complete disparate conception of 'rights' and 'duties' under ancient Indian legal system and the colonial legal system'
    He explained that while there is much in Indian jurisprudence which is out of date today, but this is true of every system of jurisprudence- "The greek and Roman civilisation for based on slavery. The divine right of kings prevailed in Europe till the end of the 17th century. The law of reason was often identified with the law of Christian God. There was no freedom of belief or worship in Europe, and many were burnt alive for the offence of heresy. Women were tried and burnt for the offence of being witches and men for having communion with the devil. Some of the peculiar absurdities which disgraced law and Justice in Western Europe are absent in the Indian jurisprudence. As an example of the absurdities of western legal systems, which were absent from ancient Indian legal system, I should mention the peculiar practice of holding trials of animals for criminal offences which were taking place in Europe till the 17th century! In Germany, once a cock was solemnly placed in the prisoner's box, and was accused of insubordinately making noise. Counsel for the defendant failed to establish the innocence of his feathery client, and the unfortunate bird was accordingly ordered to be slaughtered. Similarly in 1508, the caterpillars of Contes, in Provence, were tried and condemned for ravaging in the fields and in 1545, the Beatles were similarly punished. These absurdities find no place in the judicial system of ancient India", emphasised Justice Nazeer.
    "An important difference between Indian and western jurisprudence is their respective attitudes to rights and duties. They were correlated in both systems but the emphasis is different. In India jurisprudence, the emphasis is on obligations. In fact the word 'right' does not occur even once in the whole of the ArthaShastra. Indian jurisprudence is founded on theories which emphasise the rights as corollaries of duties. Even freedom of speech is recognised as a duty to speak without fear. In western jurisprudence, on the other hand, rights, natural or legal, are primary, though every right must have a corresponding duty. This emphasis on rights in one case and obligations on the other had an important effect on social institutions like marriage. Under Indian jurisprudence, marriage was a duty, a job to be performed as one of the many social obligations, which everyone had to perform. But the preoccupation of western jurisprudence with the rights has resulted in marriage being looked upon as an alliance from which each partner tries to get as much as he or she can. The high rate of divorce is the result of neglecting the duty aspect of marriage", explained Justice Nazeer.
    'Outward remarks by colonisers that India was a land lacking in legal principles or the observance to the rule of law only an excuse for superimposition of foreign ideas and systems'
    "When the colonisers first invaded India, they made outward remarks stating that India was a land lacking in legal principles or the observance to the rule of law. They used this as the excuse for superimposition of the foreign ideas and systems upon India. But these misleading remarks and notions are a misrepresentation of Indian jurisprudence and the legal system of ancient India. These incorrect statements have been made due to ignorance or imperialist self-interest or contempt for Indian culture and civilisation. The effect of this misrepresentation was to create a false picture of the Indian legal system both in India and outside", asserted Justice Nazeer.
    "We must go back in time to the ancient Indian Scriptures to get a true and correct picture of the legal system of ancient India. It is then that we discovered that ancient Indian jurisprudence was founded on the basis of the rule of law and had some of the features that were immensely revolutionary for the ancient world. These included:
    A.the king was himself subject to the law and the king's right to govern was subject to the fulfillment of duties which, if breached, resulted in forfeiture of kingship.
    B.the judges were independent and subject only to the law, and ancient India had the highest standard among all nations for the ability, learning, integrity, impartiality and independence of the judiciary.
    C.the Indian judiciary consisted of a hierarchy of judges with the court of the Chief Justice at the top, each tier could be invested with the power to review the decision of the courts below.
    D.disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial Process in the modern state today.
    E.the rules of procedure and evidence were similar to and just as advanced as those followed today.
    F. In criminal trials, the accused could not be punished unless his guilt was proven according to law, and in civil cases the trial consisted of four stages like any modern trial-plaint, reply, hearing and decree.
    G.doctrine such as res judicata were prevalent in the ancient Indian jurisprudence.
    H.all trials, civil or criminal, were heard by a bench of uneven judges and rarely by a sitting judge singly.
    I.decisions of all courts except the king was subject to appeal or review according to established principles. J.the fundamental duty of all courts was to do justice without favour or fear", told the judge.
    "The first question to address would be whether there was a rule of law prevalent in ancient India. Evidence for a resoundingly affirmative answer to this question is bored out of the great epic texts. The Mahabharat, for instance, stated that the king who, after having sworn that he shall protect his subjects, fails to protect them, shall be executed like a mad dog. The Mahabharat also stated that the people should execute a king who does not protect them but instead deprives them of their property and assets and who takes no advice or guidance from anyone. Such a king is not a king but misfortune. While the words used may have been grim and in keeping with the modern legislative language, the message is clear that the king is not above the law. These provisions indicate that sovereignty was based on an implied social compact and if the king violated this traditional pact, he forfeited his kingship", continued Justice Nazeer.
    "Coming to the historical times of the Mauryan Empire, Kautilya described the duties of a king in the Arthashastra in the following terms: in the happiness of his subjects lies the King's happiness; in their welfare his welfare; whatever pleases him he shall not consider as good but whatever pleases people he shall consider as good. The principle enunciated by him was based on a very ancient tradition which already was established in the age of Ramayana. Rama, the King of Ayodhya, was compelled to banish the queen, whom he loved and in whose chastity he had complete faith, just because his subjects disapproved of his action of taking back a wife who had spent a year in the house of her abductor. The king submitted to the will of the people even though it broke his heart. In the Mahabharat, it is stated that a common man refused to give his daughter in marriage to the king of Hastinapur unless the king accepted the condition that his daughter's son and not the heir apparent from a former queen would succeed to the throne. Renunciation of the throne and the vote of lifelong celibacy by Prince Debabrata is one of the most moving episodes in the Mahabharat. But its significance for the legal fraternity is that even the sovereign king was not above the law. The great king of Hastinapur could not compel the humblest of his subjects to give his daughter in marriage to him without accepting his terms. It refutes the view that the kings in Indian ancient India were despots who could do as they please without any regard for the law or the rights of their subjects", elaborated Justice Nazeer.
    Judiciary in ancient India
    The judge explained that according to Brihaspati Smriti, there was a hierarchy of courts in ancient India, beginning with the family court and ending with the king. The lowest was the family arbitrator, the next higher court was that of the judge: the next of the chief justice and at the top was the Kings Court. The jurisdiction of each Court was determined by the importance of the dispute, the minor disputes were being decided by the lowest court and the most important by the king. The decision of each higher court superseded that of the court below.
    "It is noteworthy that the Indian judiciary today also consists of a hierarchy of courts organised on a similar principle-the village courts, the munsif, the civil Judge, the district judge, the High Court and finally the Supreme Court which takes the place of the king's court. We have been unconsciously following an ancient tradition. The fountain source of justice was the sovereign. Being the fountain source of justice, in the beginning, the king was expected to administer justice in person but strictly according to the law and under the guidance of judges learned in law. A very strict code of judicial conduct was prescribed for the same. He was required to decide cases in open trial and in the courtroom and his dress and demeanour were to be such as to not over-awe the litigants. He was required to take the oath of impartiality and decide cases without bias or attachment. The king was required to be modestly dressed so that the litigants are not intimidated. The code of conduct prescribed for the king when acting as a judge was very strict and he was required to be free from attachment or prejudice.The judges and counsellors guiding the king during the trial of the case were required to be independent and fearless and prevent him from committing any error or injustice. As civilisation advanced, the Kings functions became more numerous and he had less and less time to hear suits in person and was compelled to delegate more and more of his judicial functions to professional judges. In the course of time, judicial hierarchy was created which will leave the king of much of the judicial work but leaving untouched his powers as the highest court of appeal", elaborated Justice Nazeer.
    Integrity of the judiciary in ancient India
    Justice Nazeer explained that the foremost duty of a judge was integrity which included the responsibility of being impartial and a total absence of buyers or attachment- "The concept of integrity had a very wide meaning and the judicial code of integrity was very strict. The strictest precautions were taken to ensure the impartiality of judges. A trial had to be an open court and judges were forbidden to talk to the parties privately while the suit was pending because it was recognised that a private hearing may lead to partiality. Another safeguard of judicial integrity was that suits could not be heard by a single judge, even if he was the king. Our ancestors realised that when two minds confer, there was less chance of corruption or an error and provided the king must sit with his councillors when deciding cases and judges must sit in benches of uneven numbers. Unfortunately, our present judicial system, created by the british, does not follow these excellent safeguards. Today every suit is heard by single Munsif or civil judge or district judge for reasons of economy. But the state in ancient India was more interested in the quality of justice than economy".
    "Corruption was regarded as a heinous offence and all the authorities are unanimous in prescribing the severest punishment on a dishonest judge. A corrupt Judge, a false witness and the murder of a Brahman were considered to be in the same class of criminals. Judicial misconduct included conversing with litigants in private during the pendency of a trial", told the judge.
    Rules for interpretation of the text of the law in ancient India
    "In ancient India principles for interpretation of laws were developed to high degree of perfection. Judges were required to decide cases, criminal and civil, according to law. This involved interpretation of the written text of the law. This task created many problems such as the elucidation of obscure words and phrases in the text, re-conciliation of conflicting provisions in the same law, solution of conflict between the letter of the law and principles of equity, justice and good conscience, adjustment between customs and Smritis and so on. This branch of law was highly developed and a number of principles were enunciated for the guidance of the courts, the most important of them related to the conflict between the Dharma Sastra and the Artha Shastra…Three systems of substantive law were recognised by the court-the Dharam Shastra, the Arthashastra and the custom which was called the Sadachar. The Dharma Shastras consisted of laws which derived their ultimate sanction from the Smritis and the Arthashastra principles of government. The borderline between the two often overlapped. In several matters that the Artha Shastra and Dharma Shastra were in conflict. As such, one is naturally driven to wonder how did the law courts resolve this conflict when it arose in a particular suit?", discussed Justice Nazeer.
    "The first principle was that the court must try to resolve any apparent conflict between the two. Today this is called the principle of harmonious construction. But if the conflict could not be resolved, the authority of the Dharma Sastra was to be preferred. But while interpreting the written text of the law, the court was to bear in mind that its fundamental duty was to do justice and not to follow the letter of the law", told the judge.
    The importance of customs in the lawmaking in ancient India- By gearing law to changing customs, ancient Indian jurisprudence gives the concept of law a secular hue, and developed the evolutionary concept of law
    "In view of the vital part played by the customs in society, in ancient times, the State was required to maintain an authenticated record of the customs observed in the various parts of the country. But even an established custom could be formally disestablished if in the course of time it became inequitable. In fact it was the duty of the sovereign to remove from time to time the dead or rotten branches of custom. This remarkable provision indicates how highly developed the judicial and legal system of ancient India were. Very often the decision in a suit dependent on proof of the existence of a custom. By gearing law to changing customs, ancient Indian jurisprudence gives the concept of law a secular hue. Moreover, it developed the evolutionary concept of law and rejected the concept of absolute, eternal, never change in law", explained Justice Nazeer.
    The law of evidence in ancient India
    The judge told that the existence and robustness of law of evidence and the modes and standards of proof are an index of the quality of a legal system. In this respect, the Indian legal system was more advanced than any other legal system of the time.
    "In ancient societies, proof by supernatural devices, such as trial by ordeal, was quite common. In England, it prevailed till the very close of the middle ages. But our judicial system prohibited resort to supernatural devices, if oral or documentary evidence was available. The real test of any judicial system is that it should enable the law court to discover the truth and that of ancient India stands high under this test. All available evidence indicates that in ancient India, bearing false witness was viewed with great abhorrence. A virtue practised for a 1000 years became a legal tradition….The procedure and atmosphere of the courts discouraged falsehood. The oath was administered by the judge himself and not by a peon as today. While giving the oath, the judges were required to address the witness, extolling truthfulness as a virtue and condemning perjury as a horrible sin. The judges address to the witness did not consist of a set of words but the moral exhortation intended to put the fear of God in him. There were other provisions, calculated to reduce the chances of false evidence being given. It was the prerogative of the king to ensure that there should be no delay in examining witnesses by court since delay results in fading of the memory and stimulates imagination", told Justice Nazeer
    Prevalence of an administrative court in ancient India
    "The State in ancient India had a public sector of huge dimensions which was engaged in commerce and industry. The modern western and capitalist notion that there should be no industries run by the state would have appeared nonsensical to ancient Indians. Under the Mauryan empire, there was a State mercantile industry, a state textile industry, state mining industry and the State trading department which will be taken in-charge of respectively by a superintendent general of shipping, textiles, mining and commerce. The regulation of each state industry was under its own rules and all the rules were compiled and cross classified in the Arthashastra which may be regarded as an administrative code. The Artha Shastra provides a complete administrative code prescribing rules of Maritime and river navigation. It provided that the state should have a superintendent general of navigation whose duties are defined. The Artha Shastra contained strict regulations to ensure the safety of vessels. It also contains regulations that the state mercantile marine operated on the high seas and that it provided that passengers arriving in Port on the Royal ships shall pay their passage money. The rates were to be fixed by the superintendent General. Incidentally the existence of this code proves beyond doubt that the people of India were seafaring people with extensive trade relations with foreign countries", explained Justice Nazeer
    "Similarly the manufacture of textiles in cotton yarn which was a huge industry, exporting textiles to foreign countries had a public as well as private sector. The public sector was under the supervision of a superintendent general of textiles. He had a large organisation under him. The Artha Shastra prescribed the duties of him and the other officials working under him. The duties included giving employment to women in their own homes. Cotton was distributed among them and spun into thread and either collected by the department or delivered by the women themselves. But the Artha Shastra contained strict regulation against taking of liberties with such women or withholding their wages. It describes that if the official of the superintendent stares at the face of such women or tries to engage her in conversation about matters other than her work, he will be punished as if he is guilty of a first assault. It also provided the delay in payment of wages would be likewise punishable. Another regulation made it punishable offence to show any undue favour to any woman worker", told the judge.

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