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Ancient judicial wisdom for modern Bharat

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When Chief Justice of India Shri Ramana appealed for the Indianisation of the judiciary, the country ushered in a new dawn of renaissance. The meaning of the Indianisation of the judiciary, as explained by Justice Ramana, is to be more and more conscious of the existing realities in the country in order to provide greater access to justice for the poor. In addition to CJI’s views, Supreme Court Justice, Shri. Abdul Nazeer, has gone a step further and expressed the need to dethrone the colonial legal system and replace it with the great tradition of Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya, and other legal luminaries of ancient India.

A philosophical churning that kicked off after 2014 has inevitably touched a chord with the judiciary also, which is a very welcome and proud movement for the nation. Our dream is big, therefore a starting point could be the replacement of tools of interpretation with indigenous sources. It is not the case that our judiciary has not employed it before, nor have our scholars neglected this requirement altogether. However, the push from judicial brethren is somewhat lacking in this entire mission, and that has dealt a setback to such fundamental reform in the judiciary. Frequent quotes from foreign sources to arrive at justice by the legal fraternity has resulted in our ancient scholars being settled as tailenders. The very first move towards the Indianisation of the judiciary is to bounce back to our classical sagacity as the source of first order. Overreliance on foreign underpinnings to interpret laws is an attempt to fit a square peg into a round hole, which results in more harm than benefit to the people and disturbs civilizational postulates.

Ancient Bharat had achieved advancement in legal science equal to that in other arenas of knowledge. However, the annexation of Bharat by the British unleashed an ugly suppression of highly sophisticated knowledge of this land and its replacement by western knowledge. We had encompassing schools of thought in the law, such as Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhag), Nanda Pandit (author of Dattak Mimansa), etc. The “Mimansa or Purva Mimansa” rules laid down by the sage Jaimini were used to establish harmony in the situation of conflict among these schools. “Mimansa”, though having cutting-edge rules in contemporary terms, they have been superimposed by the works of western jurists like Maxwel or Craies, and very infrequently, the Supreme Court of India has invoked “Mimansa” as an instrument of interpretation. The Constitution of India under Article 141 enjoins all courts to follow the law declared by the Supreme Court. Hence, the frequent use of Mimansa rules in the Supreme Court of India would encourage the subordinate judiciary to hark back to our traditional science of law.

Some peculiar differences between foreign jurisprudence and Bharatiya legal traditions are irreconcilable for e.g. duties are superior to rights in India which is called “Dharma” as against the superiority of rights over the duties in western philosophy. Supreme Court of India has also rendered precedence to rights over duties but this approach is causing an imbalance as the state is compelled to strive for the welfare of the people without corresponding responsibility on citizens to reciprocate the efforts of the state. Bharat has witnessed periodic episodes of vandalization of public property for personal interests, and most of the time miscreants get away with impunity. The second instance is that of corruption. Law proscribes bribe giving or bribe-taking, but we rarely see the conviction or even prosecution of bribe givers. If there is fine balance of duties as envisaged in Indian legal tenets neither the state nor would subject overpower another party. Today, many of the difficulties are arising due the assertion of rights by the state as well as citizens which results into conflict rather than solutions. A society where duties are duly followed by each member leads to the minimization of conflicts, law and order issues.

Marriage and family, plankton of Bharatiya society, are dying at a breakneck pace as a result of the implantation of western ideas about rights versus duties, with each family member concerned about his/her own rights while conveniently ignoring duties to cement family bonding.

Interpretation of law and social values of the nation go in tandem and inseparable therefore it becomes a duty of the judge to interpret the law in the context of social values otherwise justice may not be done. Bijoe Emmanuel V State of Kerala alternatively known as the Jehovah’s witnesses case, is such an instance where the Supreme Court borrowed interpretation from colonial countries about the religious concepts of Jehovah’s witnesses and how civil liberty is granted to them in those countries. However, court failed to take into consideration the social make-up of Bharat, which is in contrast to these other colonised nations where Christianity is the principal religion and Greek-Roman is a dominant culture. 

While granting the children a right to silence for refusing to sing the national anthem, the Supreme Court identified gaps in the Indian Constitution and statutes. This was not expected, inasmuch as bolstering nationhood is an evolutionary process fortified by the compulsory singing of the national anthem. Law allows the right to silence but equally entitles court to draw adverse inference but surprisingly, the same principle is not applied in the case when school authorities expelled non-compliant children from the school for the disrespect towards the national anthem due to their refusal to sing it. The national anthem is avowedly a milestone in the integration of the nation and yielding to demand for the right to silence in such instances would invite further exhortations.

The Atidesha principle of Mimansa would have ceased necessary debate on this issue. A principle allows a court to fill the gaps when the law is silent or ambiguous. Jaimini in Sutra 6: 3: 9 states: “When there is a conflict between the purpose and the material, the purpose is to prevail, because in the absence of the prescribed material a substitute can be used, for the material is subordinate to the purpose”.  The purpose of the national anthem is to develop patriotic feelings among the citizens, more emphasis on material defeats a purpose, and Jehovah’s Witnesses case is a suitable example of it.

The incantation of Khalistan Zindabad does not attract sedition under 124 A of the Indian Penal Code if it does not evoke any response or reaction from the public as per the order of the Hon’ble Supreme Court in Balwant Singh & Another V State of Punjab. The reason given by the court was that it  “appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of Section 124A or Section 153A IPC” but Parashara Smriti guides us that “As a drop of oil spreads over the water, — so is sin transmitted from one person to another, by reason of sitting, sleeping, travelling, talking, and eating together with a sinner”.

What could have been the motive behind praising Khalistan other than to challenge the integrity, unity, and sovereignty of Bharat? Whether that evokes a response from the people or not is a subordinate idea. Here comes the Gunapradhan Axiom of the Badha Principle of Mimansa interpretation, which mandates: “If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether.” In the parliamentary democracy, passive supporters of breaking India forces can inflict tremendous damage if they spread their word and consolidate vote bank around their thought, but looking at liberty and freedom from a western frame would obligate judges to expect unrealistic latitude from the state for the miscreants in society.

A reference to the Sanskrit literature on the law would encourage judges to study the socio-cultural setup of our country, without which the interpretation of statutes is a futile exercise. Legal precepts typically explain what is prohibited, but Dharmashastras also prescribe norms, and Mimansa rules reconcile conflicting understandings of laws and norms. Today, few subjects are considered outside the scope of the law and people are given the freedom to practice immorality under the right to privacy, but the Bhagavad Gita explains in Chapter 2 verses 62 & 63 that the roots of such immoral freedom end up in the offense.

One develops an attachment to the objects of the senses while contemplating them. Attachment leads to desire, and from desire arises anger. Anger leads to a clouding of judgment, which results in bewilderment of memory. When memory is bewildered, the intellect gets destroyed; and when the intellect is destroyed, one is ruined.

The courts, time and again, urge the state to enact and enforce potent laws, but without active support by the courts, nothing is possible for the state. Due to legal jargon, the state is reluctant to enact a law along the same lines when the earlier section or act is struck down by the court. A conflict seems to be the frame of reference towards the laws and constitution. However, unless Bharatiya legal literature is sufficiently explored, the conflict is unavoidable. Extrapolation of law by learning the civilizational roots and solutions readily available in our Dharmashastras is a holy grail for the faster resolution of disputes. It is up to the Supreme Court as to when to swing in that direction.

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