Supreme Court Justice Abdul Nazeer by Demanding Dismantling of Indian
Judicial system has Violated His Oath
[The print version appeared in FRONTLINE, January 28, 2022 with the
following link: https://frontline.thehindu.com/cover-story/objection-your-honour-supreme-court-judge-s-abdul-nazeers-recent-speech-raises-eyebrows/article38192921.ece]
Justice Abdul Nazeer, is not only one of the judges with longest
term at the Supreme Court (SC) of India but also the one, only 3rd
in the history of SC, who was elevated to the highest court in 2017 (to retire on
October 20, 2023) without being chief justice of any High Court.
On December 26, 2021, he addressed the
16th National Council Meeting of the Akhil Bhartiya Adhivakta Parishad (ABAP)
at Hyderabad on the theme of 'Decolonisation of the Indian Legal System'. His
participation in this event was surprising in many respects. It was an
organizational meeting of one of the appendages of RSS. According to a Hindi
publication of RSS [Parm Vaibhav ke Path Per, 1997] ABAP was created in 1992 to
work for moulding the Indian judicial system according to “Bhartiya culture…to
suggest amendments in the Indian Constitution... [and] amendment in Article
30”. It is to be noted that according to RSS Bhartiya
culture is Hindu culture only. The Indian constitution needs to be discarded as
according to the most prominent ideologue of the RSS, MS Golwalkar [Bunch of
Thoughts], “it has absolutely nothing which can be called our own”. It stands
for removal of Article 30 of the constitution which provides minorities right
to establish and administer educational institutions.
It is interesting to note that ABAP
on its website did not reproduce the text of the address of the Justice for
reasons known to them only but thanks to a prominent legal portal (LiveLaw.in)
the whole text was made available. Justice Nazeer deliberating on the theme declared
that Indian legal system was a colonial legal system which “is not suitable for
the Indian population. The need of the hour is the Indianisation of the legal
system”.
What he meant by Indianisation of the Indian legal
system was made clear by the following utterances of his:
"We
must go back in time to the ancient Indian Scriptures to get a true and correct
picture of the legal system of ancient India. It is then that we discovered
that ancient Indian jurisprudence was founded on the basis of the rule of law
and had some of the features that were immensely revolutionary for the ancient
world.”
He lamented the fact that the Indian legal system
continued to neglect the great knowledge of the “legal traditions as per Manu,
Kautilya, Katyayana, Brihaspati, Narad, Yagyavalkya and other legal giants of
ancient India” which resulted in “adherence to colonial legal system” that
proved to be “detrimental to the goals of our Constitution and against our
national interest”.
According to him "Despite such a rich
tradition of highly sophisticated pre-existing legal system which was prevalent
in India, foreign legal systems were imposed upon us with every invasion [he
means Arabs] and occupation” [by the British] and it is lamentable and “tragic
that the same colonial legal system is being continued in a large and changed
manner even today in 2021"
Justice fondly remembered Manu who prescribed “public
censure as one of the punishments for crime”. It is immensely sad that a legal
luminary gracing the SC Bench is glorifying public shaming as a form of punishment.
He completely disregarded the fact that public censure was and is in vogue in
totalitarian regimes which leads to witch-hunting [both in literal and macro
sense] and lynching. In fact, Allahabad High Court in a judgment [March 2020] declared
naming and shaming of CAA protestors by Adityanath government as “nothing but an unwarranted interference in privacy of people” and
violation of Article 21.
He also praised Kautilya and his work Arthashastra
for upholding the concept of a welfare state in which “the happiness of his
subjects lies the King's happiness; in their welfare his welfare…”
For Justice Nazeer the present legal system which propelled
him to reach to the highest court of justice of India suffered from “Colonial
psyche” which led to rejecting the ancient Indian legal system in which
“the
king was himself subject to the law…The judges were independent and subject
only to the law…disputes were decided essentially in accordance with the same
principles of natural justice which govern the judicial process in the modern
state today”.
In order to know the truth we need to compare
above stated claims by Justice Nazeer with the original writings of two of his
favourite ancient Indian legal luminaries, Manu and Kautilya (also known as
Chanakya and Vishnugupta).
MANU CODE
Some of
the laws Manusmriti or Manu Code denigrating Sudras: 1.For the sake of
the prosperity of the worlds (the divine one) caused the Brahmana, the
Kshatriya, the Vaisya, and the Sudra to proceed from his mouth, his arm, his
thighs and his feet. 2. One occupation only the lord prescribed to the Sudras,
to serve meekly even these (other) three castes. 3. If Sudra arrogantly teaches
Brahmanas their duty, the king shall cause hot oil to be poured into his mouth
and into his ears. 4. A low-caste man who tries to place himself on the same
seat with a man of a high caste shall be branded on his hip and be banished, or
(the king) shall cause his buttock to be gashed.
Some of the Laws
of Manu denigrating women: 1. Day and night woman must be kept in
dependence by the males (of) their (families), and, if they attach themselves
to sensual enjoyments, they must be kept under one’s control. 2. Her father
protects (her) in childhood, her husband protects (her) in youth, and her sons
protect (her) in old age; a woman is never fit for independence. 3. Women do
not care for beauty, nor is their attention fixed on age; (thinking), ‘(It is
enough that) he is a man,’ they give themselves to the handsome and to the
ugly. 4. (When creating them) Manu allotted to women (a love of their) bed, (of
their) seat and (of) ornament, impure desires, wrath, dishonesty, malice, and
bad conduct.
It will be interesting to note that VD Savarkar
declared Manusmriti to be the “most worship-able after Vedas for our
Hindu Nation” and when the Constituent Assembly of India finalized the
Constitution of India on November 26, 1949, RSS was angry. Its English organ, Organiser
in an editorial on November 30, 1949, complained: “But in our Constitution
there is no mention of the unique constitutional development in ancient Bharat…To
this day his laws as enunciated in the Manusmriti excite the admiration
of the world and elicit spontaneous obedience and conformity. But to our
constitutional pundits that means nothing.”
It will not be out of context to know that the
architect of the Indian constitution, Dr. BR Ambedkar was present when on
December 25, 1927 at Mahad, Maharashtra a copy of Manusmriti was burnt. On this
day he also called upon to commemorate every December 25 as ‘Manusmriti Dahan
Divas’ by burning the same.
KAUTILYA AND ARTHASHASTRA
One of BJP’s official websites (http://library.bjp.org/jspui/handle/123456789/80)
runs text of English translation of Arthashastra
(Kautilya’s Arthshastra, tr. by R. Shamsastry) which defends
Casteism in the following words:
“The duty of
the Brahman is study, teaching, performance of sacrifice, officiating in
others' sacrificial performance and the giving and receiving of gifts. That of a Kshatriya is
study, performance of sacrifice, giving gifts, military occupation, and
protection of life. That of a Vaisya is study, performance of
sacrifice, giving gifts, agriculture, cattle breeding, and trade. That of a Sudra is the serving of twice-born,
agriculture, cattle-breeding, and trade, the profession of artisans and
court-bards.”
Kautilya’s
king is a ruthless dictator,
“It is the king in whom the duties
of both Indra (the rewarder)
and Yama (the punisher) are blended,
and he is a visible dispenser of punishments and rewards; whoever disregards
kings will be visited with divine punishments, too. Hence kings shall never be despised. Thus treacherous opponents of
sovereignty shall be silenced”.
Arthshastra is a detailed
ready reckoner for torture methods. The chapter VIII in book IV titled as "Trial
and Torture to Elicit Confession” reads:
“Those whose guilt is believed to be true shall
be subjected to torture…Torture of women shall be half of the prescribed
standard. There are in vogue four
kinds of torture…Six punishments, seven kinds of whipping, two kinds of
suspension from above, and water-tube. As to persons who have committed grave
offences, the form of torture will be nine kinds of blows with a cane:--12
beats on each of the thighs; 28 beats with a stick of the tree; 32 beats
on each palm of the hands and on each sole of the feet; two on the knuckles, the hands being joined so as to appear like a scorpion; two kinds of suspensions, face
downwards burning one of the joints of a finger…These are the 18 kinds of torture…Each day a fresh kind of the
torture may be employed.”
Kautilya brazenly prescribed apartheid in human
habitants. According to him in a fort, “Royal teachers, priests…and ministers
shall occupy sites east by north to the palace. To the west, artisans
manufacturing…as well as the people of Súdra caste shall have their dwellings”.
The punishment prescribed for women who are not submissive reads:
“Three beats either with a bamboo-bark or with a
rope or with the palm of the hand may be given on her hips…” If a woman goes
out in day time “She shall pay a fine of 6 panas
(a contemporary coin) for
going out at day time to sports or to see a woman or spectacles. She shall pay
a fine of 12 panas if she goes out to see another man or for
sports”.
Justice Nazeer by glorifying such inhuman legal
systems and decrying the constitutionally ordained legal system has violated
the oath that to “bear true faith and allegiance to the Constitution of India
as by law established…and that I will uphold the Constitution and the laws” which
he took while assuming the office. His sermon has greatly insulted the work and
contribution of Constituent Assembly of India.
Justice Nazeer’s address at ABAP suffers from two serious
infirmities too; factual as well as normative. Factually, he is hugely wrong
when he underlines a single source of Indian civilization and its legal heritage.
His all jurist idols, Manu, Kautilya, Katyayana,
Brihaspati, Narad, Yagyavalkya from ancient India are known for
Brahmanical interpretations. Justice Nazeer for reasons known to him only did
not bother to refer to Buddhist and Jain heritage of jurisprudence which was
amazingly humane and egalitarian.
Rahul Shyam Bhandari, a renowned lawyer and researcher of the
history of Indian jurisprudence has
done pioneer work on the legal system under Buddhism which could be described
as constitutionalism. One of the greatest followers of Buddha in ancient India
King Ashoka got the following proclamation, a great example of inclusivity, engraved
on a rock known as Rock Edict No 12. It read:
“The
Beloved of the Gods, the king Piyadassi, honours all sects and both ascetics
and laymen, with gifts and various forms of recognition…On each occasion, one
should honour another man’s sect, for by doing so one increases the influence
of one’s own sect and benefits that of the other man…This is the desire of the
Beloved of the Gods, that all sects should be well-informed, and should teach
that which is good…”
According
to Bhandari, Buddha propagated that no absolute authority vested in one person.
The Vinaya Texts and Patimokkha Texts were the basis of Buddhist
legal framework. The first part of Patimokkha dealt with the four
gravest sins—sexual intercourse, theft, murder and demonstration of one’s
miraculous powers which were punishable.
Jainism also had elaborate legal system which
did not treat women as inferior beings. Acharya Bhadrabahu (367 BC-298 BC)
wrote Bhadrabahu Samhit which accorded full inheritance rights to women.
If a person died having a son or without a son, property was passed to the
widow. The male enjoyed no preferential treatment.
A more critical problem, a theoretical one, with the lecture
was that Justice Nazeer was glorifying the pre-modern legal practices as
superior to those which were adopted by the Indian Constituent Assembly as
integral part of a modern nation building. According to him the august Assembly
suffered from “Colonial psyche” thus falling prey to the colonial system. It was
horrendous on his part to declare that Manu and Kautilya stood for legal
systems based on Rule of Law, Natural Justice and independence of judiciary.
Such notions did not exist then. Those were the times when a group of brothers
as rulers, the Pandavas, enjoyed the sole authority to put on stake, in a
gamble, their kingdom, assets, even joint wife, Draupadi. If it was Rule of Law
and Natural Justice prevailed such heinous happening could not have taken
place.
The call by Justice Nazeer to return to the golden past (the
historicity of which is greatly doubted by the large number of serious
historians) is fraught with multiple dangers. De-colonization was a long-drawn process
unleashed in the mid-20th century against the mightiest imperialist powers. It
succeeded at the cost of unimaginable human sacrifices offered by the people of
the colonies. The object was to get rid of the shackles of imperialism,
feudalism and capitalism and march on for a progressive, egalitarian and
rational polity. Indian constitution and our judicial system may rightly be
found wanting in many respects. The solution lies in further humanizing these,
not seeking refuge in the stories of kings and kingdoms.
Justice Nazeer’s sermon bodes ill for democratic-secular
polity of India which is already under threat from the RSS-BJP rulers. According
to the renowned political analyst, Pratap Bhanu Mehta by using the brute power of the vote and least bothered
about constitutional protections they have turned Parliament into a notice board, not a
debating forum. In such critical times judiciary, specially the highest court
of justice remains the only hope of taming the Hindutva juggernaut which is
running amok.
Shamsul Islam
M-9968007740
Link
for some of S. Islam's writings in English, Hindi, Urdu, Marathi, Malayalam,
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http://du-in.academia.edu/ShamsulIslam
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