‘Indianising’ the legal system and SC’s views

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Two Supreme Court judges in the past few months have openly expressed the need to “Indianise” the legal system.

What did the Supreme Court judges say on ‘Indianising’ the legal system?

Chief Justice of India N V Ramana: Indianisation of the country’s legal system is the need of the hour. Here, Indianisation means the need to adapt to the practical realities of our society and to localise our justice delivery system. For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court as they do not understand arguments or pleadings which are mostly in English, a language alien to them.

Judge S Abdul Nazeer: There is a need to Indianise the legal system by drawing inspiration from the ancient Indian legal philosophies and by getting rid of the colonial influence. He emphasized the need to embrace the great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India.

Chief Justice of India P.N. Bhagwati in M.C. Mehta case(1986):  We cannot allow our judicial thinking to be restricted by making reference to the law as it prevails in England or in any other foreign country. We no longer need the aid of a foreign legal order. India is certainly prepared to build up its own jurisprudence.

Supreme Court Judges on Manu and Kautilya

Justice Bobde in Right to Privacy Judgement: In the ancient and religious texts of India, a well-developed sense of privacy is evident. For example, Kautilya’s Arthashastra prohibits entry into another’s house, without the owner’s consent.

Joseph Shine judgement decriminalising adultery: The court referred to how the Manusmriti prescribes punishment for those who are addicted to intercourse with wives of other men by punishments that cause terror, followed by banishment.

Sabarimala case: The court points to the Manusmriti to observe that in these ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. However, those practices which legitimise menstrual taboos due to notions of ‘purity and pollution’ limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere.

Source: This post is based on the article ‘‘Indianising’ the legal system and SC’s views’ published in The Hindu on 29th Dec 2021.