Our Constitutional Ideals Are Not Some Colonial Vestige, Can't Say Constitution Is Un-Indian : Justice S Ravindra Bhat

Former Supreme Court judge Justice S Ravindra Bhat said that the Constitution cannot be termed as a colonial document merely because it was a modification of the Government of India Act 1935 and emphasised that the Constitutional ideals cannot be discarded as some colonial vestige.

He was delivering a lecture on 'Shedding the Colonial Hangover-Perspectives on Indianizing the Legal System', organized by the Kerala Judicial Academy and the Indian Law Institute - Kerala Chapter, at the Kerala High Court. 

Justice Bhat, at the outset recognized that the Indian plurality and diversity came to be overridden with the British interest of having a homogenous law, and that the colonial project of lawmaking delinked people from their own laws, such as overlooking of customs followed by tribal communities. 

He however underscored that the Indian Constitution is a living document. 

"...our Constitution is a living document which cannot but be the answer to what is Indian. Just because it has colonial origins, it cannot be reason to say it is essentially un-Indian". 

He added that the Indian Constitution is a product of its time, which was enacted at the time of partition, and that the rejection of the same on the sole ground that it is a modification of Government of India Act, 1935 is not a well thought out argument. 

Listing the features of the Indian Constitution which demonstrated that the document was not merely a relic of the colonial past, but one which was imbued with revolutionary provisions, Justice Bhat said,

"Our constitutional ideals... are not some colonial vestige. The first was the universal adult franchise which in one stroke guaranteed equal rights. Second is the horizontal application of rights, which I call the emancipation code of the Constitution. These provisions demonstrate our commitment to revolutionary idea of Equality". 

The judge added that the same was not merely indicative of a break from our past, but also a break from the 'feudal past' of the nation. 

"When we went for freedom, it was not just from our colonial ruler but also from the constraints we had. Where in the world do we have another Election Commission as strong as this?,"  he asked. 

He added that Article 32 of the Constitution also stood as a testimony to how the document signified a complete break from both external and internal structures.

Justice Bhat thus opined that decolonisation of legal system was an ongoing process, and that identifying colonial vestiges and deconstructing the colonial legacies was a process which would have far-reaching impact. 

"Project of Decolonisation cannot just substitute one system for another without causing untold hardship for citizens. It has to be a process," he said. 

Reflecting on the pluralistic nature of Indian society, Justice Bhat emphasized that caution ought to be exercised while making attempts at homogenizing the legal system. 

"India was and remains a truly plural society. In Kerala itself, there are several customs. North East, etc have diverse customs. How do you homogenize them into one system? I'm not saying it's impossible but we have to find out how to let these systems to breathe than eliminate...We must be careful not to fall back on unequal system,"  he reminded. 

Justice Bhat also proceeded to note various measures for reforming the legal system of the country. 

He opined that 'tribunalization' which faced limitations in terms of 'geographical access' and 'resource person access' was deeply troubling from national perspective, and that many tribunals had also currently become defunct. He thus cautioned against the allocation of resources and time for such alternative methods of disputes resolution on the basis of class evaluation. 

As regards the 'language barrier', Justice Bhat conceded that the English language could not be abandoned completely, considering that we presently live in a global village. He however suggested legal education being imparted in regional language, apart from reimagination of school curriculums. 

Justice Bhat was also of the staunch opinion that the procedural framework also ought to be recast, in light of the inequalities and hierarchies prevalent in society.

 "There must be a balance between simplifying access to justice without minimizing rights and justice," he reminded. 

Kerala High Court Chief Justice A.J. Desai and Justice A.K. Jayasankaran Nambiar also addressed the gathering during the event today.