Harking back to ancient codes of justice is a bad idea

Time and again, the proponents of decolonisation have called for ‘Indianisation’ of our legal system. The debate around Indianisation has been substantiated by some Supreme Court judges, including former CJI N V Ramana. In September, Justice Ramana blamed colonial practices for the lengthy procedures and technicalities resulting in exclusivity. Previously, Justice Bobde had suggested changing the legal system to align with ancient systems such as Kautilya’s Arthashastra. Further, Justice Abdul Nazeer, another supporter of Indianisation, in a speech delivered at Akhil Bharatiya Adhivakta Parishad recommended decolonisation while hailing texts such as Manusmriti and Arthashastra.

The calls by the judges carry factual infirmities, but the controversial question remains: What is meant by terms such as decolonisation, Indianisation, or localisation, which are used as synonymous with each other? There are two arguments against the Indianisation mirage. Firstly, there’s no clarity of what Indianisation is -- is it the widely used term in villages -- Khap Panchayats, or an ill-defined concept? Secondly, is there a blurring line between modernisation and colonialism?

On the first argument, it is essential to discuss what Indianisation means. When Justices Bobde and Abdul Nazeer evoke Manusmriti and Arthashastra, is it about the Hindu legal system – or the Brahmanical model? In its fourteenth report (1958), the Law Commission of India cited the structure of courts in ancient times to be somewhat divided into ‘Popular Tribunals’ and ‘Royal Tribunals’. The problem with returning to popular tribunals that one would encounter today is that the administration of law today is no longer customary. Further, they were founded on a community or caste basis. As much of the ancient legal system was a construct of the social structure, it focused on caste divisions and remained regressive for the poor.

On the other hand, the royal tribunal posed a different problem. The Law Commission report highlighted that the royal tribunals were not run through statutes, but morality -- unknown procedures. Thus, it becomes challenging to conceptualise how going back to ancient times would solve our problems today.

Another argument against Indianisation is the lack of literature -- the judges have not cited enough literature; instead, a few scholars from ancient times have been cited.

On the second line of argument, the Law Commission’s report suggests that the system prevailing in India is now home-grown -- it will be disastrous and destructive to change it radically. Further, it suggested that the revision of the current legal system to ancient times would be unsuitable for modern conditions of life. The current legal system through the Constitution provides access to everyone, at least in theory, unlike some ancient texts that were cited which held prejudice against the lower strata of society. The Constitution, in keeping with modern democratic ideas, speaks for equality before law and equal protection.

As frequently used nowadays, Indianisation has been moulded in various forms throughout history. During British rule, the inclusion of indigenous people was seen as Indianisation of the administration. However, this changed after Independence as the circumstance changed. Another perspective to look at Indianisation that is well-known among legal scholars is changing laws that have now become symbols of a colonial hangover. This became a prevalent debate after the decriminalisation of Section 377, which was a colonial legacy. Many have repeatedly asked for reconsideration of colonial legacy laws, including Sedition (Section 124A), the death penalty, and unlawful assembly.

Regarding the question of the judiciary, Justice Ramana’s point of contention about Indianisation might be disputed but the concerns about the judiciary’s exclusivity are genuine. This has brought much discontent over time. The Indian judiciary is currently plagued with more than 47 million cases in various levels of courts. Judicial vacancy remains another hurdle in the proper administration of justice. High pendency, vacancy, expensive litigation methods, and lack of transparency make justice-for-all a distant dream. But the real question is, is there a need to go back to ancient times to resolve these issues?

Most judicial issues could be resolved using technological developments through proper methods and interventions. For instance, the cost of litigation could be reduced by allowing the petitioners to appear using digital means, thus reducing the cost of travel and accommodation. Pendency is a complex problem but can be dealt with using time-bound trial methods to dispose of cases. Recently, the Supreme Court has launched live-streaming of constitutional cases – an example of the use of technological advancements to ensure transparency in cases of national importance. The idea of going back to the mores and codes of ancient times to remodel the judiciary is meaningless. Instead, the modern judiciary should be made more accessible to the public with the help of technology.

(The writer is with National Law University, Jabalpur)