a Speech of Justice S Abdul Nazeer of the Supreme Court of India (Hindu, December 29, 2021, Has given rise to lively discussions in legal and political circles. The judge spoke on the topic “colonization of the Indian legal system” at a meeting of the National Council of the All India Advocates Council in Hyderabad, an association of lawyers with clear loyalty to the Bharatiya Janata Party (BJP). He called for “Indianisation” of our legal system. He expressed regret about the continued neglect of the teachings of the great legal stalwarts of ancient India like Manu, Kautilya, Yajnavalkya etc.

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The judge said this indifference was against “our national interest”, adding that the states of ancient India had a good judicial system. The judge outlined Kautilya’s theory about the duties of the king, which, according to him, is based on the great tradition established in the era of the Ramayana. He implied that many ideas of modern methods of adjudication were prevalent in indigenous jurisprudence.

While also talking about judicial corruption, Justice Nazir had made a point. Citing Brihaspati, he said that “corrupt judges, false witnesses and murderers of Brahmins” were treated as criminals equal to each other. Apparently, the Brahmins continued to hold a different position even while assessing the culpability of the Act. On the selection of judges, he recalled the Vedic priest, Katyayana, who insisted that the king had to appoint only a brahmin to act as a judge. It is equally curious that Justice Nazir got glory in economics In which punishment was considered for an officer for talking personally with a female employee during working hours.

Justice Nazeer’s speech has some distinctive features. It is melancholy in tone and succinct in its concept. It lacked consistency in the context of specific legal situations. The speech consisted of generalizations without situational references. It did not indicate a solid and comprehensive legal system that would be desirable or adaptable to the nation after independence. However, the basic issues of speech are two-pronged. First, it ignores the Constituent Assembly’s debate on designing the legal landscape of the country. Second, when religious revivalism is used as a political tool by the governing system, the legal revivalism propounded by the judge in general terms can only support the regime’s political and populist agenda.

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The Constituent Assembly debates began on 9 December 1946 and ended on 26 November 1949, the day the Assembly approved the draft. Although the Government of India Act, 1935 was a major source of the constitutional script, the debates in the Legislative Assembly and their results made it a unique socio-political document.

The argument of Indianness was very prominent in the discourse. On 17 November 1949, a member of Mysore K. Hanumanthaiah expressed grief: “We wanted the music of the veena or the sitar, but here we have the music of an English band”. Suggestion of Pandit Govind Malviya The Preamble to the Constitution was to begin with the words, “By the grace of God, the Lord of the Universe…” Mahavir Tyagi on December 27, 1948, emphasized on achieving “spiritual freedom”, not just political freedom. Loknath Mishra was worried About “the complete destruction of Hindu culture” (December 6, 1948). On the other hand, HV Kamath warns that the history of Europe during the Middle Ages was “bloody” and showed “the harmful effects of the union of church and state” (December 6, 1948). He said that “if a state identifies itself with a particular religion, there will be a rift within the state”. it was the exact opposite What did Loknath Mishra say on 3rd December 1948?, “If you accept religion, you must accept Hinduism as it is practiced by most of the people of India.”

These comments and many others are merely symbolic of the sheer amount of kaleidoscope viewpoints that the Assembly had chosen to deliberate upon. The plea for “Indianisation” was confronted not only with the values ​​of Western liberal democracy, but also with the finer parts of the Indian tradition, which were systematically incorporated into the Constitution.

The second aspect of Justice Nazeer’s speech has contemporary relevance and to understand this, we need to make the opinion relevant. The speech tries to create a narrative of a good old past without any concrete material to support it. This is completely in line with the political rhetoric of the right wing that relies on the unproven glory of the past. Justice Nazeer’s remarks come at a time when the regime is trying to destroy the Constitution and the idea of ​​the rule of law in several ways. At a time when laws are also being used to break constitutional principles such as secularism and federalism, the Supreme Court judge’s remarks against the supposedly colonial nature of the legal system, which includes the country’s Constitution, are deeply disturbing. Is.

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The country’s democracy has reached a new low in recent times. It went down in the Freedom Index as well as the Hunger Index. On December 27, 2021, the new York Times The report said that “in India, there have been laws against conversion as well as mob violence”. Hate speech has become a major form of assertiveness in the country driven by selective invocation or non-invoking of penal laws. When the Constitution became the most effective tool against electoral autocracy, Justice Nazeer’s speech has only adversely affected the thriving movements to restore the values ​​of the Constitution. It is significant that even while attacking the colonial legal system, Justice Nazir did not find fault with the sedition law or other such harsh penal provisions, which are all colonial relics.

Legal scholars David Landau and Rosalind Dixon explain in a comprehensive study that “in a range of countries, authoritarians have turned the courts into arms rather than outrageous constitutional change” (Abusive Judicial Review: Courts Against Democracy, 2019) they have primarily dealt with the process of adjudication, which in one way or another, aids or promotes “a broader project of democratic erosion”.

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But the ideological change in the institution of the judiciary and the persons running it is another fundamental factor that determines the quality of the judiciary and the polity. The quintessential relationship between judicial ideology and political ideology was explained by JAG Griffith in his classic work, politics of judiciary (1977). They need to be analyzed by the judges, on and off the bench, position wise against the political situation. Some of the judges’ remarks may be expressions of sheer personal admiration for the Prime Minister, as evidenced by Justice Arun Mishra’s speech in February 2020, when he described the Prime Minister as “a versatile genius who is globally recognized thinks and acts locally”. In February 2021, Justice MR Shah said that Prime Minister Modi is a “popular, beloved, vibrant and visionary leader”. Both these remarks do not bode well for our democracy as they are not in consonance with the constitutional scheme of separation of powers and expected judicial practice. Justice Nazeer’s views indicate an unfortunate ideological shift in our judiciary.

https://news.bharattimes.co.in/an-unfortunate-ideological-shift-in-the-judiciary/