In recent months, at least two Supreme Court judges, one of whom is the Chief Justice, have urged that the legal system be “Indianized.” Chief Justice NV Ramana's ideas were limited to adapting the system to Indian “reality” and localising justice delivery mechanisms. Justice S Abdul Nazeer, on the other hand, desired to “decolonize” the Indian legal system, emphasising that Manu, Kautilya, and Yagnavalkya's historic traditions must not be ignored. Former Chief Justice PN Bhagwati previously argued that our judicial philosophy could not be “constricted” by referring to English law. This isn't the first time something like this has happened.
This topic was discussed in the Constituent Assembly. De-westernising Indian jurisprudence could be compared with a nationalist legal system in contemporary times when nationalism is nearly a social grace. The legal system in India has a long history, reaching back to the Vedic period or perhaps earlier. The Mahabharata makes mention of the Dharma institution. The goal of the law in Vedic times was to protect Dharma, which included both legal and religious obligations. The principles and standards for protecting Dharma are laid down in Manu Smriti. Three legal systems were recognised by the courts: Dharma Shastra, Arth Shastra, and Sadachara or Charitra.With grounds of litigation, jury systems, laws pertaining to witnesses, classification of “vivada” (disputes), and even judicial psychology, the fundamentals of jurisprudence were well-defined.
When the Mughals arrived, the legal tradition shifted to one centred on religious communities. While the Emperor's law was supreme and the Sunni Hanafi school served as the official legal system, Shia and Hindu legal traditions were also acknowledged and practised. The law moved from religious prescription to the common law system during the British period. The Indian Penal Code, the Code of Criminal Procedure, and other statutes were all written by the British. When India gained independence, the Constitution guided Indian law away from colonial law and toward an organic one with aspects of secular law (as practised under the Mauryas) but a focus on social welfare to empower society's weakest sections.
More clarification on what it means to “Indianize” the legal system is required. It can't possibly be from the Vedic period. What would we take from that historical period — the codification of legislation or the societal ethos that prompted the codification? For example, unlike ancient law, modern Indian law does not distinguish between castes and groups. The current system promotes social justice and equality before the law, rather than a Brahminical interpretation of the social code, rigid caste structures, or patriarchy. Take, for example, the Supreme Court decision allowing women of menstrual age to enter the Sabarimala temple. Would ancient law have stood up to a religiously based code?A legal system can be improved without jeopardising its ability to serve justice in today's world.
