Indianizing the Indian Legal System: Oxymoron or Simple Irony?

Indianizing the Indian Legal System: Oxymoron or Simple Irony?

By Justice (Retd) V Gopala Gowda

Strong points:

  • Calls for the “decolonization” of Indian jurisprudence are misplaced.
  • Every law student in India studies the history of Indian law
  • Indian law is based on the unique culture and history of the country

Recently, several trumpet 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 sovereign constitutional republic for more than seven decades now and its constitutional philosophy revolving around its socio-economic, political and legal fabric has been resilient, responsive, dynamic and dynamic. one who is constantly evolving organically to survive the challenges of changing times.

It is compulsory for every law student in India to study the history of Indian law at the law school. The study of Indian legal history is traced through the sands of time spanning the eras of ancient, medieval and modern India. Indian law students are familiar with the legal systems in place from the time 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 kingdom of Vijayanagara in medieval times. India.

As an introduction to Indian jurisprudence, every law student in India first learns the “sources” of law and learns that in the Indian context the Constitution of India is the supreme source of law while the statutes, the customary law (derived from customs and traditions largely in the religious and personal realm) and judicial precedents are the other sources of law. Indeed, the Constitution of India is an encyclopedic undertaking that fuses the best of the best precepts from the legal systems of mature democracies around the world and not just from India’s legal past. The rich and scholarly debates of the Constituent Assembly bear witness to this.

The statutes are promulgated 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 free to modify or even repeal the colonial laws of the pre-independence era if they do not correspond to the constitutional ethics of modern India. Judicial precedents, which is yet another authoritative source of law in India, borrow heavily from ancient Indian jurisprudence. The judges of India after independence, fervent enthusiasts of ancient Indian philosophy, have themselves extensively referred to the works of Manu, the Arthashastra of Kautilya, the comments of Yagnavalkya, etc. to deliver landmark verdicts in the history of our constitutional democracy.

In the recent Apex Court judgment upholding the right to privacy as a fundamental right, Judge (retired) SA Bobde, pointed out that “even in ancient and religious texts of India, a well-developed privacy is evident ”. Kautilya’s Arthashastra prohibiting entry into another’s home without the owner’s consent ”was cited as an example of how ancient India revered the right to privacy. The judiciary has also been fair in deviating from some regressive prescriptions of ancient texts and the views expressed in the Sabarimala case are an exemplary point. In the Sabarimala case, the court referred to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women were considered to pollute the environment”.

The Apex Court therefore categorically departs from the regressive prescription of ancient texts by rationally distinguishing that “practices which legitimize menstrual taboos, because of notions of ‘purity and pollution’, limit the ability of menstruating women to access freedom of movement, the right to education and the right of access to places of worship and, ultimately, their access to the public sphere ”.

Indeed, ancient Indian jurisprudence explained that even the king is not above the law. It should also be noted that India is one of the few truly democratic nations in the history of the world’s democracies not only to put one of our prime ministers in the dock, but also to be convicted of ‘a criminal offense. It is a testament to the Indianness of the Indian legal system far from imitating the jurisprudence of our colonial masters, that is to say the British, which declares that “a king can do nothing wrong”.

Yes, the Indian legal system with all its challenges and fears is far from perfect. A few colonial relics still adorn the Indian legal system more in the area of ​​linguistics and form as evidenced by the use of “lordship / ladyship” in Indian courts as well as the archaic and rather wordy legal jargon still in vogue. However, this colonial hangover is confined to questions of form when in essence there is nothing more Indian than the Indian legal system which has evolved dynamically and organically in tandem with the times and l ethos of the Indian people.

We must beware of such calls for “Indianization” and “decolonization” which distract us from our upward and continuing trajectory, under the disguise of Indian custom and tradition, but instead propel us with floating banners, drums beating to walk backwards. at the time when women were sacrificed at the funeral pyre of their husbands and part of the population dehumanized and subjected to an animal existence in the hands of others by being considered “unfit” to receive an education and deprived of human rights fundamentals in the name of religion.

While assimilating the good of ancient wisdom, we must guard against regressive medievalism. (The article first appeared in News Nine – Courtesy: https://www.news9live.com/)

(Judge (Retired) V Gopala Gowda served on the Supreme Court as a judge, and previously as Chief Justice of the High Court of Odisha.)