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by alatwal Feb 11th 2022

“The great weakness of the Indian legal system today is that due to its divorcing from Indian legal heritage, it lacks theoretical nourishment. The impact of theories of jurists, including ancient Indian scholars, on the legal system of a country is profound, even though it may seem unseen and unconscious”.  

Justice, Abdul Nazeer
The Supreme Court of India

The recent speech of Justice Abdul Nazeer in the 16th Annual meeting of Akhil Bhartiya Adhivakta Sanghathan ignited the long going debate on Indianization of the legal system. In the past as well, the current framework and functioning of the Indian legal system triggered several intellectual voices, both within and outside judiciary, advocating the removal of colonial impressions on the Indian law and order. Justice Abdul Nazeer’s recent observations on this issue is an excellent addition on this subject.

In his 27 paged address note, Justice, Abdul Nazeer covered the following areas :

S.No. Topics covered
I General remark

  • Role of Akhil Bhartiya Adhivakta Parishad.
  • Importance of the topic.
In the opening remarks, Justice Nazeer impresses upon the need of conducting regular seminars and workshops for lawyers on contemporary issues. The role of Akhil Bhartiya Adhivakta Parishad was appreciated in this regard.

He also discussed the  relevance of the topic, “Decolonization of Indian legal system”, by clarifying that it would be a mistake if we consider this topic as merely a part of legal history. It is one of the most relevant contemporary issues of the present time. He further added that the current topic is already in the consideration of several Supreme Court judges and their rulings.

II Ancient Indian Legal System

  • Vedas as source of Indian legal system.
  • Legal insights from ancient Indian scriptures.
  • Presence of rule of law in ancient India.
  • Presence of administrative units and hierarchy in judiciary for the dispensation of justice.
  • Accountability of judges and their role in delivering justice.
  • How laws were interpreted and what cautions were prescribed.
  • Customs, their codification and application in achieving ends of justice.
  • Dynamic nature of law.
  • Inquisitorial & conducive atmosphere of courts in securing evidence and testimonies of witnesses.
  • Role of State as administrative arm in maintaining law and order in society.
Justice Nazeer mentioned Vedas as the fountain head of Indian legal system with thousand years old indegenous customs in the backing. He critically commented on the age-old excuse of invaders & colonizers that India does not have its own legal system. The possible reasons cited by him for this misrepresentation are ignorance, imperialist self-interest or a contempt for Indian culture and civilization.

Suggested that we must go back in time to the ancient Indian scriptures to get a true and correct picture of Indian legal system, where we can gather insights on :
Sovereign (king’s) liability, Independence of judiciary, Hierarchy of courts and judges, Rules of procedure and evidence, Stages of trials, Civil law doctrines like “res judicata” (prag nayaya) etc.

i) Rules of Law:
Speaking on the “rule of law”, Justice Nazeer at the very outset addresses the question, whether there was a rule of law prevalent in ancient India? Reference of several ancient Indian texts appreciated to answer this question in affirmation. For instance, Mahabharata, Kautilya’s Arthashastra, Brihaspati, etc.

ii) Judiciary in ancient India :
References of Kautilya’s Arthashashtra mentioned in the address. Justice, Nazeer propounded in his address that the Mauryan realm at the time (322 -298 BC) was divided into administrative units called Sthaniya, Dronamukha, Khrvatika and Sangrahana (the ancient equivalent of the modern districts, tehsils  and parganas). Law courts were established in each Sangrahana and also at the meeting places of the districts (Janapadasandhishu). The court consists of three jurists (Dhramastha) and three ministers (amtyas).  And in terms of jurists several names were cited like Manu, Yajnavalkya, Katayana, Brihaspati etc.
Justice Nazeer also mentioned the process of deciding jurisdiction of the courts which was based on the merits and seriousness of the case. He further added that court decisions have binding effect, ending with that of King and flows in the ascending order and each judicial order shall prevail against the preceding one because of the higher degree of learning and knowledge.

Integrity of judiciary in ancient India

Justice Nazeer covered the point of judicial integrity by quoting Brihaspati, “a judge should decide a case without any consideration for personal gain or any kind of personal bias; and his decision should be in accordance with the procedure prescribed by the texts. He further adds that a judge who performs his judicial duty in this manner achieves the same spiritual merit as a person performing a Yajna.
The process of conducting court trials also found expression in ancient Indian texts. For instance in Shukra-nitisara it is clearly mentioned that a court trial must be an open court hearing. Five causes destroy impartiality and lead to judges taking sides in disputes. These are attachment, greed, fear, enmity and hearing a party in private. Harsh punishment is also prescribed in the texts for corrupt judges.

Rules of interpretation of law in ancient India.

Justice Nazeer emphasized on the fact that there were strict standards of legal interpretation in ancient Indian texts. Judges were required to decide cases, criminal, civil, according to law (smayak, yacht shastram, shastro ditena vidhina). As per Brihaspati, the court should not give its decision merely following the letter of Shastra for if the decision is completely devoid of reasoning, the result is injustice (dharm-hani). It further adds that the court should decide according to the customs and usages of the country even if they are in conflict with law.

The importance of customs in law making in India.

In ancient times the State was required to maintain records of customs. In Katayana it is categorically stated that whether custom is proved to be followed in a particular region, it should be duly recorded as established (dharya) in a record stamped with the seal of the sovereign.

Variation and changes in law as per the requirement of time and societal necessities was also appreciated in ancient Indian texts. Both Manu and Parashara has said, “the law of krita yuga are different from those of Treta and Dwapara  and the laws of Kaliyuga are different from those of all the previous; ages – the laws of each age being according to the distinctive character of each age (Yuga roopanusarataha).

The law of evidence in ancient India.

On the laws of evidence, Justice Nazeer observed that the ancient Indian legal system was more advanced than any other legal system of the time. The real test of any judicial system is that it should enable the law courts to discover the truth, and that of ancient India stands high under this test. School Gautam in this regard mentions that, in disputes the court has to ascertain what is true and what is false from the witnesses.
Emphasis was also laid down on the procedure and atmosphere of the court in discouraging falsehood. For example the oath inside the courtroom was administered by the judge himself, and not by the peon as today.

Prevalence of administrative code in India.
Justice Nazeer pointed out that unlike today’s capitalist takeover of markets, in ancient India the State shares huge responsibility in ensuring the economic welfare of its citizens. The Arthashashtra provides detailed administrative code prescribing rules of maritime and river navigation for trade and commerce.  State being a public sector, was under the supervision of a Superintendent- General of textiles (Sootradyaksha) . Strict duties were prescribed on Sootradyaksha which includes providing employment to women and ensuring fair wages.

III Casting of ancient Indian legal system into oblivion by colonizers as well as present-day Indian legal system. Justice Nazeer speaks boldly on the hijacking of the Indian legal system by foreign invaders. He pointed out the fact that despite being a highly sophisticated and rich heritage foreign and laien system was imposed upon us with every invasion and imposition.
He further added, the colonial takeover of the Indian legal system under the garb of absent pre-existing legal systems was lamented and it is tragic that the same colonial legacy is being continued in a largely unchanged manner even today in 2021.
IV The weakness of the present legal system and the need for its decolonization.

  • Existing vacuum in theory and application of law from Indian perspective.
  • The missing link.
  • Absurdities of western legal system.
  • The much required balance between rights and duties.
Absence of theoretical heritage for modern Indian legal system due to shunning of the ancient Indian legal system.

On the issue of weakness in our legal system, Justice Nazeer is convinced that the void created between the practical application of law and theoretical support through institutionalised means is the greatest factor behind the degradation of the Indian legal system. He emphasized on the fact that the theories and scholarly works of jurists on the legal system of a country is profound although it may seem unseen and subconscious.

Generating a contrast on this issue, Justice Nazeer mentioned the fact that in England, Western Europe and the US, judges and lawyers received constant inspiration and education from the jurisprudence of their civilization which has been developing for centuries, while in case of India this aspect is non existent and hence we always look for answers and recognitions from the west on the issues of laws and their application.

Highlighting upon the absurdities of Western legal system, which are absent in the ancient Indian legal system, Justice Nazeer gives an example of trials of animals for criminal offenses taking place in Europe till the 17th century. He further cited, that under treaties of Keeton’s Element of jurisprudence, in Germany, once a cock was solemnly placed in the prison box and was accused of insubordinately making noise.

In completely desperate conception of ‘Rights’ and ‘Duties’ under the ancient Indian legal system and the colonial system.

Speaking on the issues of rights and duties, Justice Nazeer pointed out that the stark difference between Western and ancient Indian legal systems can be counted on their attitude towards rights and duties. Although they are correlated in both the systems, in the ancient Indian legal system the concept of duties and obligations were considered paramount. Infact, the word right (adhikar) does not occur once in the whole of the Anushashan Parva or the Arthashastra. Even freedom of speech is recognized as a duty to speak without fear.

V The way forward for the Indian legal system. In his concluding remarks, Justice Nazeer pointed out that the legal system does not operate in vacuum. The administration of justice is a social function and judiciary and legal process is only a part of the larger social process. Therefore courts of law cannot function in defiance or ignorance of the social objectives or “the felt necessities of time”.
The colonial psyche persists in the administration of justice in the present day Indian legal system. For instance, the manner in which pleadings are drafted in the courts today, the way in which the courts are addressed and most importantly, by the accessibility of the courts itself. The ordinary litigant is often unable to bear the expenses of pursuing litigation in distant higher courts, a practice which was introduced by the British privy council. So, the need of the hour is the Indianization of the legal system. The education of such a colonial mindset may take time but words do have impact and in this case it will help in evoking thought processes on these lines.