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

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.

"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".

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.

"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.

"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.

"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.