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Tuesday, July 5, 2022

Need of the hour : Decolonizing Indian legal system by infusing Ancient Legal Wisdom

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Recently, Supreme Court Judge Justice S Abdul Nazeer has made a call to ‘’Indianize’’ the legal system by drawing inspiration from the ancient Indian legal philosophies and by getting rid of the ‘’colonial pysche’’. He also emphasized that Indian universities imparting Law education must include a compulsory course on Indian jurisprudence. It is not for the first time that a sitting judge of the apex court has exhorted to Indianise the legal system. In September 2021, Chief Justice of India N V Ramana had made a similar call to Indianise the legal system in order to simplify the legal travails for ordinary men and poor citizens who lack the wherewithal to pursue tenacious litigations filled with legal complexities owing to colonial era law acting as barriers in the process of justice delivery for the common man.

Such a demand coming from the highest legal luminaries of the country indicates no mean or insignificant thing. We need to explore the ideological as well as pragmatic aspects of the need for Indianizing the legal system by purging it of colonial relics which unnecessarily complicate the process of seeking judicial aid as well as have become out of sync with the contemporary challenges confronting the justice delivery system. Our county being a civilization in continuum with a modern democratic constitutional state is replete with enormous intellectual and spiritual prowess in multiple arenas spanning across statecraft, governance, economic system, social organization, philosophy, medicine and mathematics, military sciences and strategic thought. Law is no exception to it. We have a vast reservoir of legal wisdom manifested in the works of Manu, Kautilya, Katyayana, Brihaspati, Narada and Yagyavalka. The writings of these legal giants could come handy in responding to many peculiar challenges emerging from within the Indian society. The Britishers codified a legal system that served the purpose of the colonial administrative apparatus and was primarily a tool to maintain law and order in the society. However, over the years the role of judiciary has evolved from being a mere dispenser of justice to an active facilitator of justice by empowering the masses and enlarging the scope of judicial operation. Therefore, as Justice Nazeer rightly pointed out, the endeavour to Indianise could revitalize the Indian legal system and align it with the cultural, social and heritage aspects of a great nation and could ensure much more robust delivery of justice. Justice cannot be seen divorced from the larger social process as social objectives and necessities of time correspond to the course taken by the judiciary. Today our society grapples with multiple issues some of which confront not only the legal aspects of our justice delivery mechanism but also presents a ideological dilemma to navigate the legal constitutional labyrinth without losing the moral compass of Indian society. Breakdown of family ties, marital disputes, property disputes, issue of adultery, etc are not just related to fundamental rights of citizens which stand constitutionally guaranteed but also at times militate against the very conscience of human beings which has a far reaching implication on our social existence . However to say that we need to reflect upon the ancient legal wisdom to be able to respond to some of these challenges is not to be construed as harking back to an artificially constructed glorious past and incorporate all that inhered in those texts but to make a delicate blend of tradition and modernity, of ancient and contemporary. Indian constitution itself bears testimony to this fact. It is not just a collection of abstract theories nor does it operate in vacuum. It reflects a particular way of life which enables a particular people to realize their objectives and ambitions. Our ancient legal writings exhibit remarkable postulates that inspire our governance and law even today. For instance, ancient scholar Brihaspati notes that judges should decide cases without any motive of personal gain or prejudice or bias and decisions made should be in accordance with the law prescribed in the text. Manu prescribes public censure as one of the punishments for crime but ironically it has been adopted by the Soviet Criminal Code but not in India.

Outward remarks by colonizers that India was lacking in legal principles was only an excuse for superimposition of foreign ideas and system in a completely discrete environment.
Kautilya spoke at length espousing the duties of a king. That the happiness of a king lay in the happiness of his subjects and the king himself being subject to the law and could forfeit his kingship if he failed to obey the law legitimized the virtues of rule of law, welfare state, good governance and accountability – buzzwords of modern political systems. The beautiful story of Manu Needhi Cholan – the king who executed his son to give justice to a cow serves as a much needed template to cure the widespread corruption, dishonesty, illicit practices that has crept into our socio political institutions today. According to Brihaspati Smriti, there was a hierarchy of courts in ancient India, beginning with the family court and ending with the king. Indian state typically follows a hierarchy of courts – from lower courts to the Supreme Court. Judicial integrity was also ensured in the ancient times to do complete justice. The importance of customs in the lawmaking in ancient India gives the concept of law a secular basis and developed an evolutionary concept of law.

Our constitution was envisaged as a living document which was supposed to evolve in response to the changing dynamics of society and legal system and not a static, fossilized text. This cannot be realized without making our legal education inclusive and transformative. Profound knowledge of jurisprudence along with social sciences, ancient legal texts and a science of government are pre requisites for making good jurists. Near total neglect of Indian jurisprudence and political philosophy leaves the education of every Indian lawyers and judges incomplete. Hence, the time is ripe to vouch for a genuine Indianisation of legal education and legal system in the country in a rational, scientific manner which shall augur well for our judiciary as well as the future jurists who would occupy the top most positions in the legal hues.

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2 COMMENTS

  1. Can’t agree more. The need of the hour is to Indianize the whole legal system. Every country differs from the other in various aspects – socially, culturally, economically, morally and ethically. Hence, laws, rules and regulations need to be formed accordingly.
    Well, while framing such Indian legal system, we must essentially look into our past.
    The work done by sage shukra, brihaspati, bhardwaj, pishun, kuntpadant must be studied. The Arthashastra by Chanakya comes without expiry date. Even though it is centuries old, it has relevance even in today’s time and can never be outdated even for the coming times.
    Kautilaya in his book has mentioned every aspect in detail. You name it and it is there. Apart from how a king must be, or how he needs to look after for the welfare of his subjects etc etc, it interestingly tells us, how a king must appoint amatyas ( ministers), how to build koshagar, how a king needs to be careful during night hours, what precautions he must take while having food, or dressing himself or while going out, or who must be his angrakshaks, daasis and their selection process. What precautions a king must take in order to prevent his own sons ( princes) or queens rebelling against him. In one of the sections of Arthashastra, he mentions dand-niti ( he defines ‘crime’ and mentions how to trace crimes and criminals). He mentions 40 types of bribes and has openly called it वित्तम् भक्ष्यती.
    I mean, this is just a glimpse. Time has come to re-look into our past for our better today and tomorrow.

  2. Can’t agree more. No doubt about it that the need of the hour is to Indianize the entire legal system. Every country differs from the other in various aspects – socially, culturally, economically, morally and ethically. Hence, laws, rules and regulations need to be formed accordingly.
    Well, while framing such Indian legal system, we must essentially look into our past.
    The work done by sage shukra, brihaspati, bhardwaj, pishun, kuntpadant must be studied. The Arthashastra by Chanakya comes without expiry date. Even though it is centuries old, it has relevance even in today’s time and can never be outdated even for the coming times.
    Kautilaya in his book has mentioned every aspect in detail. You name it and it is there.

    We Indians always underestimated and belittled our past. That’s the unfortunate part.

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