At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.
In September, Chief Justice of India N.V. Ramana had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour”. “When I say ‘Indianisation’, I mean the need to adapt to the practical realities of our society and localise our justice delivery systems… For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court,” the CJI had clarified.
On December 26, Justice S. Abdul Nazeer went a step further to underscore the need to chuck the colonial legal system detrimental to national interest and embrace the “great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India”.
Justice Nazeer, speaking on the ‘Decolonisation of the Indian Legal System’ at the National Council meeting of the Akhil Bharatiya Adhivakta Parishad in Hyderabad, wondered what the “future model of our legal system ought to be”.
He had concluded that “there can be no doubt that this colonial legal system is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system… to decolonise the Indian legal system”.
“Great lawyers and judges are not born but are made by proper education and great legal traditions as were Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India...continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests,” Justice Nazeer had said.
However, Supreme Court judgments themselves show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence. The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution. The public interest litigation mechanism is truly Indian.
“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence,” the Supreme Court, speaking through then Chief Justice of India P.N. Bhagwati, had said with confidence in the M.C. Mehta case way back in 1986.
Again, the highest judiciary has far from indulged in a “continued neglect” of the legal greats of ancient India. Several judgments since the 1980s refer to the works of Manu and Kautilya.
In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “ Arthashastra prohibits entry into another’s house, without the owner’s consent”.
But the court has also differed from the views of these ancient texts.
In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti , Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
In the Sabarimala case, the court points to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
It went on to hold that “practices which legitimise menstrual taboos, due to notions of ‘purity and pollution’, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere”.