We must have the courage to write the obituary of Victorian-vintage jurisprudence and recreate and catalyse a new dynamic jurisprudence which will reverse the present law of India.
by V. R. Krishna Iyer
A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is one of the essential prerequisites today for India.
The progress or otherwise of a people will depend on their level of respect for human rights, and the willingness to share and care for the weaker sections of society that each member of the community has, be he high or humble. Today, the Indian government is democratic: it is without doubt a government by the people, of the people, for the people. But, is it really a government for the people?
The framers of the Indian Constitution thought that socialism is the only system that can guarantee equality among the people. But when there is a plurality of religions in rivalry, each god competes with the other and a certain divine conflict ensues. This divisive tendency is unhealthy, because according to human understanding there is only one god and one humanity. And everyone's well-being has to be ensured without some being high and some being low, some being in luxury and others in lowly circumstances.
In this spirit the Constitution has made the Republic a socialist and secular one. Every member of humanity is equal and god is one and above all creations. This is the quintessence of Sanatana Dharma — the perennial dharma of a civilised society. Judged by this standard, there is inequality writ large in India between region and region, man and man, man and woman, the wealthy and the poor. This syndrome has to change if moral majesty, and equal divinity and compassion for all living creatures, are to be realised.
Fortunately this is the Indian tradition and the culture of the Constitution to which Mahatma Gandhi was committed. Economic equality is social justice, if political power is not discriminatingly cornered by some and denied to some others. When India won its freedom and made its tryst with destiny, the responsibility devolved on the nation to ensure that every tear shall be wiped out, and that all suffering will be eliminated to the extent the human pharmacopoeia can. This was laid down in the Preamble as everyone's set of rights, critically as the right to justice, social, economic and political.
As a practical aspect of this materialistic principle, every person was given an equal right to vote through periodic elections. India has had elections at regular intervals. The little man or woman with a little seal making a little mark, or pressing a small button on a compact machine in a tiny enclosure in private — no amount of criticism or rhetoric can diminish the importance of this great democratic operation. The Father of the Nation, and the values of the Constitution, stand by this principle.
But what is the reality today? The Constitution is nearly dead. Its egalitarian values have been all but violated. The rich are rising to richer heights while the poor are going downhill to even more desperate depths. State power is in the hands of multinational corporations and there is much distortion of distributive wealth. The rich are very often able to control the electorate by bribery communalism and abuse of power by an executive that is apathetic to the tears of the many but is willing to purchase their ballots by means of money and extravagant publicity.
Even the courts of law where justice is dispensed are more amenable to the richer classes than to others. Being poor and under-privileged, the masses often give away their votes for cash. They have no hope in the system and can only either surrender to it or overthrow it by means of violence or extremism.
It would sometimes appear that there is no hope in the future save terrorism, and turning democracy into a travesty. One might wonder why god is so unequal. Poor god has indeed become a commodity to be purchased by the rich. The bishop may live the high life while the parishioner begs before the church. This was the fate of even Jesus who pleaded for change like a revolutionary.
In Hinduism and Islam there is the same sort of division of the haves and the have-nots. Indeed, piety and devotion make people succumb to the existing unjust order and accept the ruling system. Exploitation is concealed and becomes virtually the rule of law, since the law itself is formulated by the creamy layer of humanity. As for justice between the wealthy and “illthy,” it is a right too costly for the poor: the bureaucracy is often beyond the reach for them.
Aiding this sinister system we have mosques and churches and temples that are effectively instruments to silence the defenders. There is a certain hallowed reverence for judges, who like priests wear robes and costumes. Persons who are able to see through this mystic methodology of the Bench and the Bar have an authority exercised in mystic diction, going to the root of unhappiness among humanity. We have to change the system of the courts, and the superstition that their verdicts are final and infallible. In reality they are as much like ordinary mortals with their own flaws, prejudices, biases, self-interest and influences. They are not superhuman. But a cult of divinity, and the commanding dress and address, make them appear as mini-divinities. This goes with their social philosophy that is pachydermic to the poor.
The judiciary is regulated by a complicated system which only the Bar and the Bench can decipher. They are governed by Victorian values and jurisprudence, of which the spokesmen are Denning and Macaulay through the great codes of civil and criminal procedure, prison law and the system of the police force borrowed from Britain.
If you want to change the system in favour of the majority which is below the lachrymal line, we have to have a few things as a priority from Macaulay to Mahatma. The Code of Civil Procedure and the Criminal Procedure Code must be repealed without any mercy or tears. Fresh codes that are dialectic and dynamic, accountable and accessible to the people must be enacted. This cannot be done by legislators who are amenable to the power of wealth but radicals who are eligible to vote in a new equalitarian methodology.
India needs a National Commission with its dominant element composed of the Scheduled Castes and the Scheduled Tribes and the weaker sections, versus the rich and the mighty. Will this ever happen? Even V.I. Lenin's Soviet Union has undergone mighty change. The new world order is the despair of the masses. The challenge before India is how non-violently the transformation that is contemplated in the Preamble to the Constitution can be worked out.
Today the robed brethren of the judiciary or the religions are untouchable and unapproachable. Justice, justices and justicing need to be radicalised. The justice system should be such that the common man, the worker, the peasants and the social activist will be able to argue before them. Justices should uphold a socialist secular democratic order and strike down every law that strikes a different note. The language of the law should be made simple, lucid and understandable enough for the common man.
A universally accessible democratic system that can deliver justice in an inexpensive manner and can ensure early finality is the desideratum. The Bench and the Bar shall be the representatives of the Indian people. The Scheduled Castes and the Scheduled Tribes, the have-nots and the humble, belong to humanity too. The principle of injustice crucified an innocent Christ and shot the Mahatma whose principle was truth, non-violence and settlement of disputes on fair terms. That half-naked fakir representing half-starved Indian humans gave us golden principles of jurisprudence that demand a re-orientation and transformation of the foundations of the social philosophy of every human sector and every mercenary profession which today thrive on money-making and jettison morals and humanism.
So, even our religions must be subject to a revolutionary change in faith and radical fraternity and comradeship. This combination of materialism and spirituality must be the new message and Preamble of 21st century India. The task of the new statesman emerging from the new generation must be to implement peace and friendship among all nations, making Article 51 of the Constitution a national essential of international relationship.
This was indeed the first principle and the last plea of the Mahatma, who spoke with burning faith that god is truth, nay more. Truths that are scientifically established and spiritually realised constitute god. We must have the courage to write the obituary of Victorian-vintage jurisprudence and recreate and catalyse a new dynamic jurisprudence which will reverse the present law of India.
source: The Hindu
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