Indianization of justice! – Northern lines
In recent months, at least two Supreme Court justices, one of whom is the chief justice, have urged that the legal system be “Indianized”. Chief Justice NV Ramana’s ideas were limited to adapting the system to Indian “reality” and locating the mechanisms for delivering justice. For his part, Judge S Abdul Nazeer wished to “decolonize” the Indian legal system, stressing that the historical traditions of Manu, Kautilya and Yagnavalkya should not be ignored. Former Chief Justice PN Bhagwati has previously argued that our judicial philosophy cannot be “restricted” by reference to English law. This is not the first time that something like this has happened.
This subject was discussed in the Constituent Assembly. The de-westernization of Indian jurisprudence could be compared to a nationalist legal system in contemporary times when nationalism is almost a social grace. The Indian legal system has a long history, dating back to the Vedic period or perhaps earlier. The Mahabharata mentions the institution of Dharma. The purpose of law in Vedic times was to protect the Dharma, which included both legal and religious obligations. The principles and standards of Dharma protection are set out in Manu Smriti. Three legal systems have been recognized by the courts: Dharma Shastra, Arth Shastra and Sadachara or Charitra. the case law was well defined.
When the Mughals arrived, the legal tradition shifted to a tradition centered on religious communities. While the emperor’s law was supreme and the Sunni Hanafi school served as the official legal system, Shia and Hindu legal traditions were also recognized and practiced. The law shifted from religious prescription to the common law system during the British period. The Indian Penal Code, the Code of Criminal Procedure and other laws were all drafted by the British. When India gained independence, the Constitution guided Indian law away from colonial law and towards organic law with aspects of secular law (as practiced under the Mauryas) but with an emphasis on the good- be social to empower weaker sections of society.
There is a need to further clarify what it means to “Indianize” the legal system. It cannot be from the Vedic period. What would we take away from this historical period – the codification of legislation or the societal ethics that motivated the codification? For example, unlike ancient law, modern Indian law does not distinguish between castes and groups. The current system promotes social justice and equality before the law, rather than a Brahmanic interpretation of the social code, rigid caste structures or patriarchy. Take, for example, the Supreme Court ruling allowing women of menstrual age to enter the temple of Sabarimala. Would an old law have resisted a code based on religion? A legal system can be improved without compromising its ability to serve justice in today’s world.