Dharmic Idiom for Bharat’s Jurisprudence

When Chief Justice of India (CJI) 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, former 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.

Indianisation of Judiciary

A philosophical churning, 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 starter could be a 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 for the Indianisation of the judiciary is to bounce back to our classical sagacity as the source of the first order. Over-reliance on foreign underpinnings to interpret laws is an attempt to fit a square peg into the round hole, which results in more harm than benefit to the people and disturbs civilisational postulates.

Ancient Bharat had achieved an advancement in legal science equal to 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 the Mitakshara), Jimutvahana (author of the Dayabhag), Nanda Pandit (author of the Dattak Mimansa), etc. In the Mimansa or Purva Mimansa rules laid down by sage Jaimini were used to establish harmony in case of conflict among these schools. Mimansa, though having cutting-edge rules in contemporary terms, have been superimposed by the works of Western jurists like Maxwell 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.

Dharma Needs To Prevail Over Rights

Some peculiar differences between foreign jurisprudence and Bhartiya legal traditions are irreconcilable. For example, duties are superior to rights in India which is called “Dharma” as against the superiority of rights over the duties in Western philosophy. The Supreme Court of India has also rendered precedence to rights over the duties but this approach is causing imbalance as the State is compelled to strive for welfare of people without corresponding responsibility on citizens to reciprocate favour to the efforts of the State. Bharat has witnessed periodic episodes of vandalisation of public property for personal interests and most of the times miscreants go away with impunity. Second instance is that of corruption, law prescribes bribe giving or bribe taking but we rarely see the conviction or even a prosecution of bribe givers. If there is fine balance of duties as envisaged in Indian legal tenets neither the State nor subject would overpower other parties. Today, many of the difficulties are arising due to the assertion of rights by the State as well as citizens which results in conflict rather than solutions. A society where duties are duly followed by each member leads to minimisation of conflicts, law and order issues.

Marriage and family, a 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 are 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 Vs State of Kerala alternatively known as Jehovah’s Witnesses Case is such an instance where Supreme Court borrowed interpretation from colonial countries about the religious concepts of Jehovah witnesses and how civil liberty is granted to them in those countries. However, the court failed to take into consideration the social makeup of Bharat which is in contrast to these other colonised nations where Christianity is the principal religion and Greek-Roman is a dominant culture. Court while allowing the right to silence the children who refused to sing the National Anthem, figured out a gap in the Indian Constitution and statutes. This was not expected in as much as bolstering nationhood is the evolutionary process fortified by compulsory singing of the National Anthem. Law allows the right to silence but equally entitles the court to draw adverse inference but strangely, the same principle is not applied in the case when school authorities expelled non-compliant children from the school for disrespect towards the National Anthem due to their refusal to sing the anthem. The National Anthem is obviously 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 unnecessary debate on this issue. A principle allows the court to fill the gaps when 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”. A purpose of the National Anthem is to develop patriotic feeling among the citizens, more emphasis on material defeats the purpose and Jehovah’s Witnesses case is a suitable example of it.

Incantation of ‘Khalistan Zindabad’ does not attract sedition under 124 A of the Indian Penal Code (IPC). 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”. A reason given by 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 Gun Pradhan axiom of 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 Parliamentary Democracy, passive supporters of breaking India forces can inflict tremendous damage if they spread their word and consolidate vote banks around their thought but looking at liberty and freedom from Western frame would obligate judges to expect unrealistic latitude from the State for the miscreants in society.

A reference to the Sanskrit literature on law would propel judges to study the socio-cultural set up 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. Few subjects today are considered beyond the remit of the law and people are given freedom to exercise immorality under the right to privacy, but Bhagwad Gita in Chapter 2 verses 62 & 63 explains that the roots of such immoral freedom end up in offence. Bhagwat Geeta states ह्लध्यायतो विषयान्पुंस:सङ्गस्तेषूपजायते ‘सङ्गात्सञ्जायते काम: कामात्क्रोधोऽभिजायतेह्व क्रोधाद्भवति सम्मोह:सम्मोहात्स्मृतिविभ्रम: ‘स्मृतिभ्रंशाद् बुद्धिनाशो बुद्धिनाशात्प्रणश्यति It means while contemplating on the objects of the senses, one develops attachment to them. Attachment leads to desire, and from desire arises anger. Anger leads to clouding of judgement, 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 the law on 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 civilisational 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.