Justice Abdul Nazeer, is not only one of the judges with longest term at the Supreme Court (SC) of India but also the one, only third in the history of the SC, who was elevated to the highest court in 2017 (to retire on October 20, 2023) without being Chief Justice of any High Court.
On December 26, 2021, he addressed the 16th National Council Meeting of the Akhil Bhartiya Adhivakta Parishad (ABAP) at Hyderabad on the theme of ‘Decolonisation of the Indian Legal System’. His participation in this event was surprising in many respects. It was an organisational meeting of one of the appendages of RSS. According to a Hindi publication of RSS [Parm Vaibhav ke Path Per, 1997] ABAP was created in 1992 to work for moulding the Indian judicial system according to “Bhartiya culture…to suggest amendments in the Indian Constitution… [and] amendment in Article 30”. It is to be noted that according to RSS Bhartiya culture is Hindu culture only. The Indian Constitution needs to be discarded as according to the most prominent ideologue of the RSS, MS Golwalkar [Bunch of Thoughts], “It has absolutely nothing which can be called our own.” It stands for removal of Article 30 of the Constitution which provides minorities right to establish and administer educational institutions.
It is interesting to note that ABAP on its website did not reproduce the text of the address of the Justice for reasons known to them only but thanks to a prominent legal portal (LiveLaw.in) the whole text was made available. Justice Nazeer deliberating on the theme declared that Indian legal system was a colonial legal system which “is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system.”
What he meant by Indianisation of the Indian legal system was made clear by the following utterances of his:
“We must go back in time to the ancient Indian Scriptures to get a true and correct picture of the legal system of ancient India. It is then that we discovered that ancient Indian jurisprudence was founded on the basis of the rule of law and had some of the features that were immensely revolutionary for the ancient world.”
He lamented the fact that 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” which resulted in “adherence to 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 [he means Arabs] and occupation” [by the British] 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 fondly remembered Manu who prescribed “public censure as one of the punishments for crime.” It is immensely sad that a legal luminary gracing the SC Bench is glorifying 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 [both in literal and macro sense] and lynching. In fact, Allahabad High Court in a judgment [March 2020] declared naming and shaming of CAA protestors by Adityanath government as “nothing but an unwarranted interference in privacy of people” and violation of Article 21.
He also praised Kautilya and his work Arthashastra for upholding the concept of a welfare state in which “the happiness of his subjects lies the King’s happiness; in their welfare his welfare…”
For Justice Nazeer the present legal system which propelled him to reach to the highest court of justice of India suffered from “Colonial psyche” which led to rejecting 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 above stated claims by Justice Nazeer with the original writings of two of his favourite ancient Indian legal luminaries, Manu and Kautilya (also known as Chanakya and Vishnugupta).
Manu Code
Some of the laws Manusmriti or Manu Code denigrating Sudras:
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.
One occupation only the lord prescribed to the Sudras, to serve meekly even these (other) three castes.
If Sudra arrogantly teaches Brahmanas their duty, the king shall cause hot oil to be poured into his mouth and into his ears.
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 denigrating women:
1. Day and night woman 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 will be interesting to note that VD Savarkar declared Manusmriti to be the “most worship-able after Vedas for our Hindu Nation” and when the Constituent Assembly of India finalised the Constitution of India on November 26, 1949, RSS was angry. Its English organ, Organiser in an editorial on November 30, 1949, complained:
“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 BJP’s official websites (http://library.bjp.org/jspui/handle/123456789/80) runs text of English translation of Arthashastra (Kautilya’s Arthshastra, tr. by R. Shamsastry) which defends 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.”
Arthshastra is a detailed ready reckoner for torture methods. The chapter VIII in book IV titled as “Trial and Torture to Elicit Confession” reads:
“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 water-tube. 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 in human habitants. 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 prescribed for women who are not submissive reads:
“Three beats either with a bamboo-bark or with a rope or with the palm of the hand may be given on her hips…” If a woman goes out in day time “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.”
Justice Nazeer by glorifying such inhuman legal systems and decrying the constitutionally ordained legal system has violated the oath that 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” which he took while assuming the office. His sermon has greatly insulted the work and contribution of Constituent Assembly of India.
Justice Nazeer’s address at ABAP suffers from two serious infirmities too; factual as well as normative. Factually, he is hugely wrong when he underlines a single source of Indian civilization and its legal heritage. All his jurist idols – Manu, Kautilya, Katyayana, Brihaspati, Narad, Yagyavalkya – from ancient India, are known for Brahmanical interpretations. Justice Nazeer for reasons known to him only did not bother to refer to Buddhist and Jain heritage of jurisprudence which was amazingly humane and egalitarian.
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. One of the greatest followers of Buddha in ancient India King Ashoka got the following proclamation, a great example of inclusivity, engraved on a rock known as Rock Edict No 12. It read:
“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, Buddha propagated that no absolute authority vested in one person. The Vinaya Texts and Patimokkha Texts were the basis of Buddhist legal framework. The first part of Patimokkha dealt with the four gravest sins—sexual intercourse, theft, murder and demonstration of one’s miraculous powers which were punishable.
Jainism also had an elaborate legal system which did not treat women as inferior beings. Acharya Bhadrabahu (367 BC-298 BC) wrote Bhadrabahu Samhit which accorded full inheritance rights to women. If a person died having a son or without a son, property was passed to the widow. The male enjoyed no preferential treatment.
more critical problem, a theoretical one, with the lecture was that Justice Nazeer was glorifying the pre-modern legal practices as superior to those which were adopted by the Indian Constituent Assembly as integral part of a modern nation building. According to him the august Assembly suffered from “Colonial psyche” thus falling prey to the colonial system. It was horrendous on his part to declare that Manu and Kautilya stood for legal systems based on Rule of Law, Natural Justice and independence of judiciary. Such notions did not exist then. Those were the times when a group of brothers as rulers, the Pandavas, enjoyed the sole authority to put on stake, in a gamble, their kingdom, assets, even joint wife, Draupadi. If it was Rule of Law and Natural Justice prevailed such heinous happening could not have taken place.
The call by Justice Nazeer to return to the golden past (the historicity of which is greatly doubted by the large number of serious historians) is fraught with multiple dangers. De-colonisation was a long-drawn process unleashed in the mid-20th century against the mightiest imperialist powers. It succeeded at the cost of unimaginable human sacrifices offered by the people of the colonies. The object was to get rid of the shackles of imperialism, feudalism and capitalism and march on for a progressive, egalitarian and rational polity. Indian constitution and our judicial system may rightly be found wanting in many respects. The solution lies in further humanizing these, not seeking refuge in the stories of kings and kingdoms.
Justice Nazeer’s sermon bodes ill for democratic-secular polity of India which is already under threat from the RSS-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 judiciary, especially the highest court of justice remains the only hope of taming the Hindutva juggernaut which is running amok.
[The print version appeared in FRONTLINE, January 28, 2022 with the following link: https://frontline.thehindu.com/cover-story/objection-your-honour-supreme-court-judge-s-abdul-nazeers-recent-speech-raises-eyebrows/article38192921.ece]
NOTE: It will not be out of context to know that the architect of the Indian constitution, Dr. BR Ambedkar was present when on December 25, 1927 at Mahad, Maharashtra a copy of Manusmriti was burnt. On this day he also called upon to commemorate every December 25 as ‘Manusmriti Dahan Divas’ by burning the same.
*Views expressed are the author’s own.
Other pieces by Shamsul Islam:
A historicity of Savarkar’s rehabilitation project
Do not let Hindutva rulers destroy heritage of communal unity of Jallianwala Bagh martyrs