By Justice (Retd) V Gopala Gowda
Highlights:
- Calls for ‘decolonising' Indian jurisprudence are misplaced.
- Every student of law in India studies Indian legal history
- Indian law is based on the country's unique culture and history
Of late, several clarion calls have been made to decolonize the Indian legal system by “Indianizing” it. The Sovereign, Secular, Socialist, Democratic, Republic of India that is Bharat has been a constitutional sovereign republic for more than seven decades now and her constitutional ethos revolving around her socio-economic, political and legal fabric has been resilient, responsive vibrant and dynamic one that is constantly evolving in an organic manner to survive the challenges of the changing times.
Every student of law in India mandatorily studies Indian legal history at law school. The study of Indian legal history is traced across the sands of time spanning over the eras of ancient, medieval and modern India. Students of law in India are not unacquainted with legal systems in place from the times of Manu, Kautilya, Yagnavalkya and several other scholars or the regimes of the Great Emperor Ashoka of the Mauryan dynasty in ancient India to Sri Krishnadevaraya of the Vijayanagara Kingdom in medieval India.
In introduction to Indian jurisprudence, every student of law in India is first taught about the “sources” of law and learn that, in the Indian context, the Constitution of India is the supreme source of law while statutes, customary law (originating from customs and traditions largely in the religious and personal domain) and judicial precedents are the other sources of the law. Indeed, the Constitution of India is an encyclopaedic enterprise that amalgamates the best of the best precepts of legal systems from mature democracies from around the world and not only from India's legal past. The rich and erudite constituent assembly debates are a testimony to this fact.
Statutes are enacted by democratically elected legislatures in Modern India and reflect the will of ‘we the people' of India to be bound by them. These democratically elected legislatures are also at liberty to amend or even repeal colonial laws from the pre-Independence era if they do not fit in the constitutional ethos of modern India. Judicial precedents that constitute yet another authoritative source of law in India, borrow heavily from ancient Indian jurisprudence. Judges in India post-Independence being highly sagacious enthusiasts of ancient Indian philosophy themselves have referred extensively to works of Manu, Kautilya's Arthashastra, Yagnavalkya's commentaries etc. in delivering landmark verdicts in the history of our constitutional democracy.
In the recent judgement of the Apex Court upholding the right to privacy as a fundamental right, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. Kautilya's Arthashastra prohibiting entry into another's house, without the owner's consent” was cited as a case in point on how ancient India venerated the right to privacy. The Judiciary has also been fair in departing from certain regressive prescriptions of the ancient texts and the views expressed in the Sabarimala case is an exemplary point. In the Sabarimala case, the court alluded to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
The Apex Court then categorically departed from the regressive prescription of ancient texts by rationally distinguishing that “practices which legitimise menstrual taboos, due to notions of ‘purity and pollution', limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere”.
Indeed, ancient Indian jurisprudence expounded that even the king is not above the law. It is also noteworthy that India is one of the few truly democratic nations in the history of democracies in the world to not only put one of our prime ministers in the dock, but also to convict of being guilty of a criminal offence. This is testimony to the Indianness of the Indian legal system far from emulating the jurisprudence of our colonial masters i.e., the British, which declares that “a king can do no wrong.”
Yes, the Indian legal system with all its challenges and misgivings is far from perfect. A few colonial relics still adorn the Indian legal system more so in the domain of linguistics and form as is seen in the use of “lordship/ladyship” in Indian courts as well as the archaic and rather verbose legalese still in vogue. However, this colonial hangover is limited to matters of form whereas, in substance, there is nothing more Indian than the Indian legal system that has evolved dynamically and organically in tandem with the times and the ethos of the Indian people.
We must be wary of such clarion calls for ‘Indianization' and ‘Decolonisation' that misdirect us from our trajectory upward and onward, in the disguise of deference to Indian custom and tradition, but instead propel us with banners flying, drums beating to march backwards to the times when women were sacrificed on the funeral pyre of their husbands and a section of people dehumanised and subjugated to an animal existence at the hands of another by being considered “unfit” to receive education and deprived of basic human rights in the name of religion.
While assimilating the good from the ancient wisdom, we must steer safe from regressive medievalism. (The article first appeared in News Nine –Courtesy : https://www.news9live.com/)
(Justice (retd) V Gopala Gowda served in the Supreme Court as a judge, and earlier as the Chief Justice of Odisha High Court.)
