Objection, Your Honour
Supreme Court judge S. Abdul Nazeer’s speech at a function organised by an RSS affiliate bodes ill for India’s democratic secular polity. By demanding a dismantling of the Indian judicial system,
he has violated his oath.
JUSTICE S. ABDUL NAZEER is not only one of the longest-serving judges in the Supreme Court of India but is also the third person in its history to be elevated to the apex court in 2017 (to retire on October 20, 2023) without serving as Chief Justice of any High Court.
On December 26, 2021, he addressed the 16th National Council Meeting of the Akhil Bharatiya Adhivakta Parishad (ABAP) in Hyderabad on the topic ‘Decolonisation of the Indian Legal System’. His participation in the event organised by one of the appendages of the Rashtriya Swayamsewak Sangh (RSS) was surprising in many respects. According to the RSS publication Parm Vaibhav ke Path Per (1997), the ABAP was created in 1992 with the aim of moulding the Indian judicial system according to “Bhartiya culture… to suggest amendments in the Indian Constitution... [and] amend Article 30”.
Significantly, according to the RSS, Bhartiya culture is synonymous with Hindu culture. The RSS ideologue M.S. Golwalkar has stated in his Bunch of Thoughts that the Indian Constitution “has absolutely nothing which can be called our own”. The RSS stands for removal of Article 30 of the Constitution, which provides the minority communities the right to establish and administer educational institutions.
Interestingly, the ABAP did not reproduce the judge’s text on its website for reasons known only to it, but a prominent legal portal, (livelaw.in), carries the entire text. Deliberating on the subject, Justice Nazeer declared that the Indian legal system was colonial, which “is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system.”
He said 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” resulting in “adherence to [the] 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 and occupation” 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 Nazeer fondly remembered Manu, who prescribed “public censure as one of the punishments for crime”. It is unfortunate that a legal luminary gracing the Supreme Court glorified 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 and lynching. In fact, the Allahabad High Court in a March
2020 judgment declared that the Adityanath government’s naming and shaming of protesters against the Citizenship (Amendment) Act (CAA) was “nothing but an unwarranted interference in privacy of people” and violation of Article 21.
Justice Nazeer also praised Kautilya and his work Arthashastra for upholding the concept of a welfare state where “in the happiness of his subjects lies the king’s happiness; in their welfare his welfare…”.
For Justice Nazeer, the current legal system that propelled him to the highest court of justice in India suffered from “colonial psyche” that led to the rejection of 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 Justice Nazeer’s claims with the original writings of two of his favourite ancient Indian legal luminaries, Manu and Kautilya (also known as Chanakya and Vishnugupta).
THE MANU CODE
Some of the laws of Manusmriti, or Manu Code, denigrating Sudras are as follows: 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 [the] 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 that denigrates women are as follows: 1. Day and night women 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 is worth noting that V.D. Savarkar declared Manusmriti to be the “most worship-able after Vedas for our Hindu Nation”. When the Constituent Assembly of India finalised the Constitution on November 26, 1949, the RSS was angry. An editorial published in its mouthpiece Organiser on November 30, 1949, stated: “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.”
KAUTILYA AND ARTHASHASTRA
One of the BJP’S official websites (http://library.bjp.org/ jspui/handle/123456789/80) runs the text of the Arthashastra’s English translation (Kautilya’s Arthashastra, translated by R. Shamsastry) defending 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.”
Arthashastra is a ready reckoner for torture methods. Chapter VIII of Book IV titled “Trial and Torture to Elicit Confession” says, “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 watertube. 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. 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 given to women who are not submissive is as follows: “Three beats either with a bamboobark or with a rope or with the palm of the hand may be given on her hips…. 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.”
INSULT TO THE CONSTITUTION
By glorifying such inhuman legal systems and decrying the constitutionally ordained legal system, Justice Nazeer has violated the oath that he took upon assuming office 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”. His speech has greatly insulted the work and contribution of the Constituent Assembly.
Justice Nazeer’s address suffers from two serious infirmities too: factual and normative. Factually, he is hugely wrong when he underlines a single source of Indian civilisation and its legal heritage. All his jurist idols, Manu, Kautilya, Katyayana, Brihaspati, Narad and Yagyavalkya, from ancient India are known for Brahminical interpretations. For reasons known only to him, Justice Nazeer did not bother to refer to Buddhist and Jain jurisprudence, which was remarkably humane and egalitarian.
BUDDHIST AND JAIN JURISPRUDENCE
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. King Ashoka, one of the greatest followers of the Buddha in ancient India, got the following proclamation, a great example of inclusivity, engraved on Rock Edict No.12: “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, the Buddha propagated that absolute authority should not be vested in one person. The Vinaya texts and Patimokkha texts formed the basis of the Buddhist legal framework. The first part of Patimokkha dealt with the four gravest sins that were punishable—sexual intercourse, theft, murder, and demonstration of one’s miraculous powers.
Jainism also had an elaborate legal system which did not treat women as inferior beings. Acharya Bhadrabahu (367-298 BC) wrote Bhadrabahu Samhit, which accorded women full inheritance rights. If a person died with or without a son, the property was passed on to the widow. The male enjoyed no preferential treatment.
A more critical problem, a theoretical one, with the lecture was that Justice Nazeer glorified pre-modern legal practices as superior to those adopted by the Constituent Assembly. It was horrendous on his part to declare that Manu and Kautilya stood for legal systems based on the rule of law, natural justice and independence of judiciary.
Such notions did not exist then. Those were the times when a group of brothers, the Pandavas, enjoyed the sole authority to put at stake, in a gamble, their kingdom, assets, even joint wife, Draupadi. If it was the rule of law and natural justice that prevailed, such heinous happenings could not have occurred.
Justice Nazeer’s call to return to the golden past (the historicity of which is greatly doubted by a large number of historians) is fraught with multiple dangers. Decolonisation was a long-drawn process unleashed in the mid-20th century against the mightiest of imperialist powers. It succeeded at the expense of unimaginable human sacrifices made by the people of the colonies. The aim was to get rid of the shackles of imperialism, feudalism and capitalism and march on for a progressive, egalitarian and rational polity. The Indian Constitution and the country’s judicial system may rightly be found wanting in many respects. The solution lies in further humanising these, and not in seeking refuge in the stories of kings and kingdoms.
Justice Nazeer’s speech bodes ill for India’s democratic secular polity which is already under threat from the Rss-bharatiya Janata Party (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, the judiciary, especially the highest court of justice, remains the only hope of taming the Hindutva juggernaut. m Shamsul Islam, a researcher of religious nationalism, has taught political science at the University of Delhi. He can be reached at notoinjustice@gmail.com