Decolonising Indian Legal System

It is important for us to understand the concept of a ‘colony’ and ‘colonising a country’ before we dwell on the subject of ‘decolonising legal system’. The term ‘colony’ finds its root in the Latin word colonus, which referred to ‘a farmer’ or ‘a husbandman’, who would hold his own land as a tenant for a money payment. The person who lent money to the farmer would partake the character of a landlord until the money was repaid by the farmer. Thus, the concept of becoming a debtor in one’s own land was often referred to as being colonised.

In legal parlance, colony was a term that referred to all those dominions of the British that were located outside the geography of Britain. In these dominions, the imperial parliament or the king in council did not legislate the laws; instead, it was carried out through a central legislature of a particular dominion, which would be subservient to the laws made by the imperial parliament. Such dominions were often referred to in the statutes as ‘colonies’. Several legislations such as The General Clauses Act, 1897; The Interpretation Act, 1889; The English Colonial Courts of Admiralty Act, 1890; etc., defined the term ‘colony’ in the aforementioned manner.

It was thus the practise of the central legislature of the Indian dominion to ensure that the laws made applicable to India would always subserve the British and the laws of Britain. It is a matter of common understanding that laws always strive to meet the expectations of an ever-evolving society. Society advances and law tries to keep up with the pace of such advancement. During the British rule, India was not only under the administrative clutches of the British, but it also was subjugated to intellectual, societal and cultural control of the West. Slowly but effectively a seed of inferiority was implanted in the Indian mind over the course of the centuries of British rule and every action or invention or discovery or a creative idea had to meet the standards set by the British so as to be acknowledged by the world. To add insult to injury, several texts and traditions of India were interpreted by Western scholars mostly with a clear agenda to drive home the point that everything Indian was flawed and anything Western was worthy of emulation. In supporting this ideology, several laws were made by the British to control and administer the Indian dominion.

After India attained independence, although the control of the imperial legislature of Britain was withdrawn, the manner of functioning of the society hardly changed. The Constitution of India became the supreme authority for the purpose of Indian governance. However, one of the major criticisms that the Indian Constitution drew soon after its formation was that it was hardly Indian. Every substantial aspect of the Constitution of India could have been a part of the Constitution of any civilised country, irrespective of the country’s history, tradition, culture and its people. When we examine the constituent assembly debates, we hardly find any discussion between its members to include in our Constitution any particular profound aspects of dharma that were and have been practised ever since the world knew the concept of law. A sense of feeling that every act done by us should please or be acknowledged by the Western mind appears to be a brooding spirit of every single Indian thinker of that era, barring a few notable exceptions like Dr. P V Kane and Dr. D V Gundappa.

In this setting, several Indian laws made during the British era continued to prosper in independent India without anyone having to think even for a brief moment as to whether these laws make sense in the present day, given that we are governing ourselves. Certain laws are timeless and denouncing the same would hardly be prudent. A mere glance at several dharma-śāstras, smṛtis, artha-śāstras and related texts show us that laws pertaining to contracts, marriage, property, succession, penal laws and torts existed in India from time immemorial. What is surprising is that most of these laws have continued to exist without much substantive changes even to this day. The Indian mind knew what aspect of society would never change irrespective of the time and captured it succinctly. It is only the form of law that has changed, not its content. To realise this, one must read the various chapters of vyavahāra contained in the dharma-śāstra texts, artha-śāstra texts, the epics, and so on. As in western medicine, the western concept of law aims to identify a mischief and finds cure to remedy that mischief. There appears to be no western concept of regulation on guiding an individual, by certain precepts, to lead a meaningful life or to maintain a healthy society. This void is either filled by theological teachings or with concepts such as ‘liberty’ and ‘freedom.’ In contrast, the ancient Indian study of law did not stop at remedying the mischief alone but provided guidelines for leading a meaningful life. These were named ‘ācāra’ (pronounced as ‘aa-chaa-ra’) and the legal principles which aimed at remedying the mischief were named vyavahāra. Further, the West only formed a system in which a man or group of men would supervise and rule the other. These were based on external evidence. In contrast, the Indian system not only specified those, but also dealt in great detail on the methods of self correction/ atonement or prāyaścitta and personal conduct (ācāra). This was based on intrinsic values.[1] This apart, principles such as puruṣārthas, āśramas, ṛta, ṛṇa, dharma provided a methodical structure for individual advancement. However, the study of dharma-śāstras or artha-śāstras, which included these vital aspects, have not been included as part of the academic curriculum in the study of law or political science in India. A few minor references are made while teaching the uncodified Hindu law, which hardly reflects the profundity or the insight of Indian legal knowledge that existed for several centuries.

The form or the structure of the Indian legal system is hardly a matter of concern while dealing with the subject of decolonisation of legal system. The division of the administration into three organs and the further division of these organs for appropriate functioning are only procedural aspects of administration and this would require modifications from time to time based on the administrative experience of those who have handled it best. However, certain substantive laws and the manner in which they have been interpreted by the Courts, especially of the higher judiciary, is a matter of concern. It has often been the approach of most Judges that they trace the origin of every law or statute to the British era and base their opinions on judgements or ratio laid down by the Privy Council or the Supreme Court of America or such other developed Western countries. The codified laws undoubtedly resemble the laws made by the British parliament but the intent and object of the law, the historical aspects of the law and the philosophy underlying the law need not have to stop at 17th century. Judges take reference to certain aspects of dharma-śāstras or the Manu-smṛti only while dealing with cases pertaining to certain Hindu laws and nothing more. The Indian legal mind of the present day appears to be unable to digest the fact that in ancient India, aspects of a society were studied in much greater detail, with great fervour and with a better sense of rationale than today. Several judgments and laws made in the present day, like those for protecting environment, religious tolerance, freedom of conscience, the concept of equality, freedom of expression and its limitations have all been rendered along the lines of several laws and judgments of the West, while the legal and political literature of our own country contains pronouncements and dictates far more sensitive, far more profound. To illustrate, the confusion on the concept of equality as between ‘equal protection of the laws’ and the ‘equal treatment of the laws’ that marked the steady “growth of law” during the first two decades of the independent India, was clarified many centuries ago in Indian philosophy. It was concluded in India, much before the Britishers understood the concept of equality, that ‘absolute equality’ could only be found in graveyard. Equality amidst men was a dynamic aspect that changed from person to person and differed in each society and community. Harmonising this was dealt in detail in what was called dharma.

Even when the makers of the Constitution thought of framing this holy document, they banked on the constitutions of several other countries. It is a matter of general knowledge that aspects like fundamental rights in Part III of our Constitution has been borrowed from the Bill of Rights in the American Constitution and the Directive Principles of State Policy in Part IV has been borrowed from the Irish Constitution and various other aspects have been borrowed from constitutions of Australia, Germany and Canada. As the provisions were being borrowed, Sri B N Rao took painful efforts in ensuring that we not only copy the words, but the concept as a whole, from these countries. He met several jurists and judges of these countries to understand how the wordings in their constitution has been interpreted and has worked in their country and the wealth of such an experience was keenly accounted while drafting the Indian Constitution. Consequently, when it came to the working of the Indian Constitution, the Indian judges automatically looked into the judgments passed by such foreign countries in interpreting the provisions of our Constitution. Later, the subsequent generation of Judges followed the precedents of earlier judgments. This has been followed even to this day.

In this entire exercise, there are very few examples of men trying to legislate a law or interpret a law or rationalising a law to the exclusive interest of Indians and welfare of its own countrymen. It is this mindset that needs to be changed.

Law is meant to regulate the society. It is a useful tool to ensure that the citizens of a country exercise their freedom and pursue their goals to the best of their ability, without encroaching upon or impinging on the rights of others, so as to lead a sustained life. This is what we referred to as ‘svadharma’. In other words, law is a tool to uphold dharma in the society. Concepts like dharma, svadharma, ṛta, ṛṇa, yajña, dāna, tapas,[2] etc., are Indian contributions to humanity, and we Indians are the ones who have failed to recognise and legitimise these vital aspects that help in maintaining order and effectuating growth. Why have these profound ideas not contained in any modern day Indian study or in Indian laws or while dispensing justice? Such a question has not been posed nor has a discussion been conducted on this. Sanskrit words irritate the Westernised mind of a present day Indian and any term contained in that language is stamped as ‘Hindu’, or worse ‘communal’, thus giving it political colour and religious flavour. Being oblivious of Indian culture or pre-Islamic Indian history is hardly considered ignorance today. The more one mindfully ignores this, more the accolades one receives. This has the support and encouragement of many agenda-driven, self-proclaimed ‘scholars’ who hold the bar to testify the intellect of an Indian mind. There is no shortage of such people in our country. Sri Nani Palkhivala once said, “India is like a donkey carrying a sack of gold. It does not know what it is carrying but is happy with a load on its back”. He also said, “It is only when we start looking ‘within’ that India can prosper. The treasure to the future of India lies in reliving its past”. We adored the man but ignored his words. Unless we work for ourselves, work for the satisfaction of our own people and care less for the acknowledgement or certification of the West, the Indian mind cannot be decolonised. Unless the Indian mind is decolonised, how can we expect that of the legal system?

Law is a means to an end and not an end in itself. Mere study of law or memorising provisions of law or citations hardly equips a legal mind to deal with the society. The study of the human mind, of philosophy, of history of the nation, its culture, and its traditions coupled with a practical outlook towards life in general equips one to understand the society in which he lives. Is it prudent to expect a foreigner with no connection to our civilisation to applaud us for what we are doing for our own people? As per Indian texts, understanding our own society and country is achieved in three ways – (a) Lokasaṅgraha (i.e., through an active participation in public life), (b) Philosophy and (c) through the study of classical and profound Indian literature in which various vagaries of an ever-expansive human mind and the undetachable cultural aspects of the nation are often laid bare. It was therefore famously quoted by Sri Soli Sorabjee that while study of law makes one a mason of law, the study of literature makes one an architect of law. While association in public life shapes a man’s outlook towards society, the study of literature shapes a man’s thinking; it cultures the mind. The wholesome aspect of the life in particular and society in general is always made known when one understands and studies philosophy, more particularly, Vedanta.

It is imperative for the country to ensure that persons appointed to the posts of dispensing justice are those that are architects of law and in possession of a cultured mind. In addition to being endowed with a deep sense of justice, they need to have a philosophical bent of mind rather than being materialistic, be honest, credible, intelligent and cultured. Unfortunately, these qualifications are not prerequisites at the time of their appointment in our Constitution or in other statutes; however, some of these are surely grounds to terminate a person from that post. It has become more necessary than ever before to ensure that persons holding high posts to run the country are those that take pride in the history, culture and traditions of India; those who don’t think twice before calling spade a spade; those whose concept of the country’s history does not stop with their experiential memory and those whose intent is always directed towards the welfare of their own countrymen.

It is hence the mindset in the approach towards the law that requires to be decolonised and not the procedural or structural administrative aspects. Decolonising the Indian legal system is not a subject that could come with an illustrative list of laws that requires change but the very nature of the approach towards and interpretation of the laws per se. Despite the lapse of seven decades, India is yet to break itself from the shackles of the colonial mindset and we remain in the realm of hope. There are many who cry out the headlines of this article to find political favour and carry the flow of present public sentiment but it is only a handful who are aware of what needs to be done.

The author would like to express his thanks to Shatavadhani Dr. R. Ganesh, Sri Arjun Bharadwaj and Sri Shashi Kiran B N for their inputs and to Sri Hari Ravikumar for his edits.

 

Footnotes

[1] For further reading, see the article titled Sanatana Samvidhana by Dr. R. Ganesh.

[2] To understand these terms, refer to: 1. https://www.prekshaa.in/foundations-sanatana-dharma-yajna-dana-tapas 2. https://www.prekshaa.in/foundations-sanatana-dharma-rta-rna-dharma 3. https://www.prekshaa.in/foundations-sanatana-dharma-fact-and-value and 4. https://www.prekshaa.in/foundations-sanatana-dharma-purusharthas

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Kashyap N Naik is a practising advocate at Bangalore and a light classical singer. He has an abiding interest in Indian literature, history, law, culture, and philosophy. 

Prekshaa Publications

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