By Adv. R. S. Agrawal :
In ancient India, the judges were required to be well versed in all branches of knowledge (vidya) as well as jurisprudence and the science of Government. But today, The low standard of legal and juristic studies in India creates an urgent problem. On the one hand, our High Courts and the Supreme Court are invested with the power to interpret the Constitution and declare any law or act of the State invalid on the ground that it is unconstitutional or illegal or restrictive of the fundamental rights of a citizen.
ADDRESSING the 16th National Council meeting of the Akhil Bhartiya Adhivakta Parishad at Hyderabad, on December 26, 2021, Justice S. Abdul Nazeer, Judge, Supreme Court, has highlighted the weakness of the present Legal System and underlined the urgent need to indianise it, pointing out that great weakness of our legal system today is its being divorced from Indian legal heritage as it lacks theoretical nourishment. The impact of theories of jurists, including ancient scholars, on the legal system of a country is profound even though it may seem unseen and subconscious. A great American Judge, Oliver Wendell Homes, wrote that the “the felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices, which judges share with their fellowmen have a great deal more to do than the Syllogism in determining the rules by which men are governed”.
Another great American Judge, Benjamin Cardozo, had observed that “logic, and history and custom, and utility, and the accepted standard of right conduct, are the forces which either singly or in combination shape the progress of the law”. Roscoe Pound was also of the view that “current moral ideas and ethical customs are drawn upon continually by courts although seldom consciously”. The Supreme Court of India has also maintained that in determining whether any restriction on a fundamental right is reasonable, there is no abstract test of reasonableness and it is inevitable that the prevailing conditions at the time and the social philosophy and scale of values of the judges should play an important part in determination of reasonableness. In ancient India, the judges were required to be well versed in all branches of knowledge (vidya) as well as jurisprudence and the science of Government. But what about today? What is the legal and social philosophy on which the Indian Judges are brought up today? In England, Western Europe and the US, the judges and lawyers have received constant inspiration and education from the jurisprudence of their civilisation which has been developing for centuries. Similarly, the judicial process in Russia derives nourishment from Marxian jurisprudence which is constantly evolving . But where does the Indian judge or lawyer receive his inspiration from? Not from the jurisprudence of his own civilisation. He knows something of Roman Law and of the theories of western jurists, but very little about the evolution of the law and jurisprudence of his own civilisation.
The syllabus for the law degree in an Indian University does not include Indian Jurisprudence or theory of the State in ancient India or the History of Indian Law. Consequently, our judicial system is an edifice constructed without theoretical foundation, or rather on foundations supporting other structures in other lands. To give an illustration, Manu prescribes public censure as one of the punishments for crime. This provision was even adopted by the Soviet Criminal Code but the Indian Penal Code, drafted by Macaulay, ignores it altogether, though it can be an effective form of punishment in many cases. Evidently the Russian jurists had more regard for Indian jurisprudence than Indians themselves. The low standard of legal and juristic studies in India today creates an urgent problem. On the one hand, our High Courts and the Supreme Court are invested with the power to interpret the Constitution and declare any law or act of the State invalid on the ground that it is unconstitutional or illegal or restrictive of the fundamental rights of a citizen.
The law declared by the Supreme Court has a binding supremacy throughout the territory of India, and its appellate powers are wider than those of any other federal court in the world. The interpretation of the Constitution and the adjustment of the rule of law with economic progress require of our judges a profound knowledge of jurisprudence and the social science and a capacity for applying the law of social evolution to judicial process. On the other hand, the standard of legal education in our universities and law colleges is very low. A poor legal education makes poor jurists and judges. The present disparity between the power and intellectual equipment of those who will be our future judges creates a problem which can be ignored only at our peril. Justice Nazeer has said that he was in favour of Indian universities teaching the best that the Western thought and Science has to offer. But almost the complete neglect of Indian jurisprudence and political philosophy leaves the education of every Indian lawyer and judge incomplete. He has reached the conclusion that foundation of legal studies must be the study of Indian Jurisprudence and every Indian university should include it as a compulsory subject for the Bachelor of Law degree. The Supreme Court Judge admitted that there is much in Indian Jurisprudence which is out of date today. But this is true of every system of jurisprudence.
The Greek and Roman civilisations were based on slavery. The divine right of kings prevailed in Europe till the end of the 17th century. The law of reason was often identified with the law of a Christian God. There was no freedom of belief or worship in Europe and many were burnt alive for the offence of heresy. Women were tried and burnt for offence of being witches and men for having communion with the devil. Some of the peculiar absurdities which disgraced law and justice in Western Europe are absent in Indian jurisprudence. Against the backdrop of all these facts speaking about possible future model of the Indian Legal System, Justice Nazeer has pointed out that 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.
The 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. The scholar Judge concluded his address with the comment that there is no doubt that this colonial legal system is not suitable for the Indian population. The need of the hour is the Indianisation of the present legal system, though it may take time, but these thoughts may evoke some to think about taking steps in this direction.