Legal System And Civilisational Dharma: Charting The Course Of Indianisation

Dr S Vaidhyasubramaniam and Amrith Bhargav

Dec 09, 2021, 03:29 PM | Updated 05:47 PM IST

Supreme Court of India. (@OnuorahMichael5/Twitter)
Supreme Court of India. (@OnuorahMichael5/Twitter)
  • The basis of Indianisation of the judicial system should be our civilisational dharma, the universal thought which subsumes the best ideals of Indian society.
  • Chief Justice N V Ramana’s profound statement that “the need of the hour is the Indianisation of the legal systemis the second coming of India that is Bharat’s first civilisational legacy that transcends various disciplines including law. This observation coming at a time when India is not only at the crossroads of completing 75 years of Independence but also the Constitution completing over 70 years of preserving the liberties and freedoms of individuals, serves an intellectual appetiser to cast away the colonial shadow and look beyond notions of British inheritance in the law necessitating attention in public discourse.

    Why is this call for Indianisation historic and significant? It means that there is a profound reflection that the colonial experience inverted the relationship between law and society. From civilisation being the basis of law, law became the basis of civilisation during the centuries of British rule. Does this mean that the force sanctioned by the state was and will be the be all and end all of social relationships and the ultimate master of cultural destiny?

    Answers to this is important as it explains the alienation caused to litigants based on the interests of empire, psychological barriers to justice delivery and the mental distance between the litigant and the courtroom. In this avoidable state of litigant mindset, the Chief Justice’s recent call for the legal profession to maximise service and not profit is a perfect platform to charter the course of ‘Indianisation’ in its true sense.

    Justice V R Krishna Iyer in Yusuf Rowther Versus Sowramma (AIR 1971 Ker 261) states “the soul of a culture- law is largely the formalised and enforceable expression of a community’s cultural norms.” An emphasis on this is evident in the separate opinion of Vice-President Judge Weeramantry in the case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia) judgement of 25 September 1997. “The ingrained values of any civilization are the source from which its legal concepts derive, and the ultimate yardstick and touchstone of their validity.”

    With this backdrop, the CJI’s much-needed emphasis on Indianisation underscores the scope of the ideas and values that underlie such a process. Informed by the depth of civilisational values that respect and preserve religions and culture, it also refers to the constructed canvas of constitutionalism which sought to make India a more equal and inclusive society. This would entail effective justice delivery mechanisms, diversity in judicial representation, gender justice and greater participation of litigants in the judicial process.

    The basis of Indianisation should be our civilisational dharma, the universal thought which subsumes the best ideals of Indian society. In fact, the moving speech of Prof Sachidanand Sinha (quoting an Urdu Couplet from Allama Iqbal), on 9 December 1946 that “surely, surely there is an eternal element in us” conveys the Indian message in a nutshell. It was simply this: continuity marked by change, change calibrated with gradual shift in notions of society, and change guided by civilisational wisdom and informed by constitutional ideas, all of these forming the unique intellectual dimension of the Indian legal system, where law and life freely intermix.

    Prior to colonisation, the situation of India was such that it thrived in variety with there being a number of informal decentralised units that took care of conflict resolution. The British found the legal system of India to be fragmented, confused and completely lacking uniformity and a centralised authority. The variance in the application of the various laws followed in India, lack of definitive and strict written codes that were uniform and the emphasis on custom over the text was what made Indian law flexible and effective. British rule reversed this whole process by making the ‘textual law’ superior to practices.

    “What happened to indigenous law as a result of the formation of the modern legal system? First, its administration moved from ‘informal’ tribunals into the government courts; second, the applicability of indigenous law was transformed in the course of being administered by the government’s courts effecting ‘contagion…. of the English system of law”. (Duncan M Durett in The Administration of Hindu Law by the British, COMPARATIVE STUDIES IN SOCIETY AND HISTORY).

    Indianisation of the legal system needs to recollect and revitalise not only the Constituent Assembly debates, the great lives of its makers but also the Indian ethos that pre-date the Constitution. Each of the debates shows the idealism that was peculiarly Indian, being both traditional and modern. In this measure, it is true that in India, traditions and modernity live a simultaneous and co-existent life with no pre-set hierarchy of mandated preferences. Indianisation, in the remarkable Indian sense of the term, is a collective of ideas, inclusive, cultural and constitutional, where the litigant public and the legal practices, both modern and ancient are given their pride of place.

    As the world’s greatest democracy with a fearlessly independent judiciary, our values and ideas that define our civilisational wisdom along with modern jurisprudence without losing the omnipresent touch of equality, dignity and fraternity need to blend fine in constructing the socio-cultural-legal pathway flagging the journey of the Indianisation of the legal system.

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