The idea of ‘Indianising’ the legal system is finding an echo among apex court judges, too

At least two Supreme Court judges, one of them the Chief Justice, have in recent months suggested “Indianisation” of the legal system. Chief Justice NV Ramana’s thought was limited to adapting the system to Indian “realities” and localising the justice delivery systems. Justice S Abdul Nazeer, however, wanted to “decolonise” the Indian legal system, emphasising that the ancient traditions of Manu, Kautilya or Yagnavalkya could not be neglected. He echoed former Chief Justice PN Bhagwati who once said our judicial thinking could not be “constricted” by reference to the law as it prevails in England. It is not the first such call. The Constituent Assembly debates touched upon this issue. In these times when nationalism is becoming almost a social grace, de-westernising Indian jurisprudence could as well be equated with a nationalist legal system. The history of India’s legal system is sufficiently ancient, dating back to the Vedic period or even earlier. The Mahabharata has references to the institution of Dharma. In the Vedic times, the objective of the law was to preserve Dharma that consisted of both legal and religious duties. Manu Smriti prescribes the rules and regulations for defending Dharma. The courts recognised three systems of law — Dharma Shastra, Arth Shastra and Sadachara or Charitra. The principles of jurisprudence were well-defined with grounds of litigation, jury systems, laws relating to witnesses, classification of “vivada” (disputes) and even judicial psychology.

The legal tradition changed to one based around religious communities when the Mughals came in. While the Emperor’s law was all-powerful and the Sunni Hanafi tradition was the official legal system, the Shia and Hindu legal traditions were also recognised and practised. In the British period, the law evolved from religious prescription to the common law system. The British started coding the law and drafted the Indian Penal Code, the Code of Criminal Procedure and other statutes. When India became Independent, the Constitution steered Indian law away from colonial law to an organic one that has elements of secular law (once practised under the Mauryas) but predominantly rooting for social welfare to empower the weakest members of society. We need more clarity on what is meant by “Indianising” the legal system. It surely cannot be going back to the Vedic times. What exactly would we borrow from that period — the codification of law or the social ethos of that time that dictated the codification? For example, Indian law as we know it, does not, unlike the ancient law, distinguish between castes and communities. The current system stands for social justice and equality before law, not Brahminical interpretation of social code, rigid caste structures and patriarchy. Or, take the case of the Supreme Court judgment lifting the ban on entry of women of menstruating age into the Sabarimala temple. Would the ancient law have challenged a code backed by religion? A legal system can be tweaked but without diminishing its ability to serve justice in the times we live in.