05-11-2005, 01:39 AM
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<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Heed Narimanâs advice
Monday May 9 2005 08:22 IST
S Gurumurthy
The Indian judicial system is an extension of the colonial regimeâ. This is how Fali S. Nariman, a highly respected jurist, characterised our judicial model at a national conference of lawmen held in Delhi recently. He did not stop at this. He went ahead and called for âintrospection to find out what was wrong with itâ. Profound words indeed. But coming as they did from a veteran lawman they are more profound. But how did the colonial regime extend into free India? It is too big a subject to be captured in a few hundred words.
As far back as 1928, Mahatma Gandhi experienced trends of colonial extension into free India. Pandit Nehru angrily told a stubborn Mahatma Gandhi then that âWestern civilisation was bound to overtake Indiaâ. He also protested that âGandhiji was deliberately trivialising the achievements of the Westâ. This attitude contained the seeds to legitimise colonialism in free India.
Soon the West became the benchmark to shape our thoughts, institutions and polity. Our Constitution, largely a remake of the colonial Government of India Act of 1935, extended the colonial statecraft to free India. When free India discussed its governance model, the decisive voices in the Constituent Assembly ridiculed even the suggestion to have a look at ancient Indiaâs village panchayat system. They dismissed villages as just âa sink of localism, den of narrow-mindedness and communalismâ. They justified âdiscardingâ the âvillageâ as the basic constitutional unit and âadoptingâ the âindividualâ in its place exclusively, thus denying even an inch of constitutional space for the village or community.
Later, as constitutional rule evolved, it also disturbed the communities and villages, even families, under the guise of individual rights, womanâs rights, childrenâs rights, elderâs rights and other sectional rights. It exclusively emphasised oneâs rights, completely discarding oneâs duties. The ancient Indian polity, in contrast, emphasised the integration of the individual with the family, village, community and neighbourhood society and finally the state. It was founded on their mutual obligations or duties, which holds good even today.
More than the law and the state, it is the family and community that train, discipline, and oversee an individual more closely, and with greater moral authority. It is no rhetoric, a reality. Much of India is un-policed or under-policed by the state. For some seven lakh villages there are just 12,400 police stations! Yet, there is more peace in un-policed villages, thanks to duty-defined norms of life in practice than in over-policed towns. Thus, the family and the community have withstood the continuous mutiny promoted through individual and sectional rights.
Under the present formal judicial system, the truth has to be rescued and recovered by each party from the other. This turns courts into battlefields, lawyers into mercenaries, and parties into adversaries. This model is adversarial jurisprudence. But the ancient Indian system is based on conciliation or the panchayat spirit. Adversarial jurisprudence works well for formal, impersonalised societies and corporate litigations. It is only partly, not fully fit for informal, personalised societies like the Indian.
Ancient Indian justice is even today delivered from temples and community gatherings. Witnesses dare not tell lies in such sacred places. In contrast, in courts organised by law the very witnesses are not as truthful, being not as reverent to courts as they are to temples. Often, they are acceptably tutored even to tell lies in court. That is why even today traditional forms of justice work. The community panchayats and religious interventions solve more cases than do the courts. For example, religious leaders like Shri Hegde, the highly respected trustee of Dharmasthala Temple in Karnataka, resolve thousands of disputes, including some high profile corporate disputes which courts are unable to. If these disputes too land in courts, the already overstretched Indian judiciary would collapse. Yet, because it looks down upon ancient modes of justice, the colonial legal system cannot recognise it, so not to integrate itself with it. So, instead of improving the village panchayats, courts have called upon the government even to outlaw them!
Can the traditional notions of justice be harmonised with the impersonalised, adversarial justice at all? Perhaps yes. Look at what this possible variation to the civil code can do. An individual approaching law courts would be asked to swear on oath that, before moving the court, he has exhausted the traditional modes of justice known to his neighbourhood or was prevented to do so. If this is proved prima facie false, he may be disqualified to approach the court. This would enable pre-litigation intervention by the traditional peacemaking mechanism and filter most of the litigation. But, as it stands, the law drives a remote villager to go to an urban lawyer - disregarding all local disciplines â to lodge a case in court against his own brothers or neighbours and turn them into his enemies forever.
Adversarial jurisprudence is unfamiliar to the ordinary Indian. But the ancient Indian modes of justice are familiar to them. Therefore, it should be regarded as a civilisational asset. Fortunately, it still holds good even today despite all efforts to undermine it. It should be revalidated, not squandered away. Why then not make adversarial jurisprudence as the residual option instead of the first? This needs to be explored. There is disconnect today between the normative traditional discipline on which society functions and the norms on which the delivery of formal justice is organised. This is what Nariman has drawn our attention to. Will those concerned with delivery of justice heed his advice?
<!--QuoteEnd--><!--QuoteEEnd-->
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Heed Narimanâs advice
Monday May 9 2005 08:22 IST
S Gurumurthy
The Indian judicial system is an extension of the colonial regimeâ. This is how Fali S. Nariman, a highly respected jurist, characterised our judicial model at a national conference of lawmen held in Delhi recently. He did not stop at this. He went ahead and called for âintrospection to find out what was wrong with itâ. Profound words indeed. But coming as they did from a veteran lawman they are more profound. But how did the colonial regime extend into free India? It is too big a subject to be captured in a few hundred words.
As far back as 1928, Mahatma Gandhi experienced trends of colonial extension into free India. Pandit Nehru angrily told a stubborn Mahatma Gandhi then that âWestern civilisation was bound to overtake Indiaâ. He also protested that âGandhiji was deliberately trivialising the achievements of the Westâ. This attitude contained the seeds to legitimise colonialism in free India.
Soon the West became the benchmark to shape our thoughts, institutions and polity. Our Constitution, largely a remake of the colonial Government of India Act of 1935, extended the colonial statecraft to free India. When free India discussed its governance model, the decisive voices in the Constituent Assembly ridiculed even the suggestion to have a look at ancient Indiaâs village panchayat system. They dismissed villages as just âa sink of localism, den of narrow-mindedness and communalismâ. They justified âdiscardingâ the âvillageâ as the basic constitutional unit and âadoptingâ the âindividualâ in its place exclusively, thus denying even an inch of constitutional space for the village or community.
Later, as constitutional rule evolved, it also disturbed the communities and villages, even families, under the guise of individual rights, womanâs rights, childrenâs rights, elderâs rights and other sectional rights. It exclusively emphasised oneâs rights, completely discarding oneâs duties. The ancient Indian polity, in contrast, emphasised the integration of the individual with the family, village, community and neighbourhood society and finally the state. It was founded on their mutual obligations or duties, which holds good even today.
More than the law and the state, it is the family and community that train, discipline, and oversee an individual more closely, and with greater moral authority. It is no rhetoric, a reality. Much of India is un-policed or under-policed by the state. For some seven lakh villages there are just 12,400 police stations! Yet, there is more peace in un-policed villages, thanks to duty-defined norms of life in practice than in over-policed towns. Thus, the family and the community have withstood the continuous mutiny promoted through individual and sectional rights.
Under the present formal judicial system, the truth has to be rescued and recovered by each party from the other. This turns courts into battlefields, lawyers into mercenaries, and parties into adversaries. This model is adversarial jurisprudence. But the ancient Indian system is based on conciliation or the panchayat spirit. Adversarial jurisprudence works well for formal, impersonalised societies and corporate litigations. It is only partly, not fully fit for informal, personalised societies like the Indian.
Ancient Indian justice is even today delivered from temples and community gatherings. Witnesses dare not tell lies in such sacred places. In contrast, in courts organised by law the very witnesses are not as truthful, being not as reverent to courts as they are to temples. Often, they are acceptably tutored even to tell lies in court. That is why even today traditional forms of justice work. The community panchayats and religious interventions solve more cases than do the courts. For example, religious leaders like Shri Hegde, the highly respected trustee of Dharmasthala Temple in Karnataka, resolve thousands of disputes, including some high profile corporate disputes which courts are unable to. If these disputes too land in courts, the already overstretched Indian judiciary would collapse. Yet, because it looks down upon ancient modes of justice, the colonial legal system cannot recognise it, so not to integrate itself with it. So, instead of improving the village panchayats, courts have called upon the government even to outlaw them!
Can the traditional notions of justice be harmonised with the impersonalised, adversarial justice at all? Perhaps yes. Look at what this possible variation to the civil code can do. An individual approaching law courts would be asked to swear on oath that, before moving the court, he has exhausted the traditional modes of justice known to his neighbourhood or was prevented to do so. If this is proved prima facie false, he may be disqualified to approach the court. This would enable pre-litigation intervention by the traditional peacemaking mechanism and filter most of the litigation. But, as it stands, the law drives a remote villager to go to an urban lawyer - disregarding all local disciplines â to lodge a case in court against his own brothers or neighbours and turn them into his enemies forever.
Adversarial jurisprudence is unfamiliar to the ordinary Indian. But the ancient Indian modes of justice are familiar to them. Therefore, it should be regarded as a civilisational asset. Fortunately, it still holds good even today despite all efforts to undermine it. It should be revalidated, not squandered away. Why then not make adversarial jurisprudence as the residual option instead of the first? This needs to be explored. There is disconnect today between the normative traditional discipline on which society functions and the norms on which the delivery of formal justice is organised. This is what Nariman has drawn our attention to. Will those concerned with delivery of justice heed his advice?
<!--QuoteEnd--><!--QuoteEEnd-->