Justice and Judgement

In the Mahabharat, Vidur, at the time of declaring the Yuvraj, asked both Yudhisthir and Duryodhan to prove themselves worthy of being the next king by meting out justice on a case of murder that had four men accused of committing the crime. Duryodhan’s position was for the death sentence to be given to all the accused, without consideration of the facts. Yudhishthir however asked for the four individuals to be punished differently. He also said that the law couldn’t treat every individual in the same way. According to him, it had to be based on the status of a person in society. This statement silenced all his critics in the Rajyasabha, and in the end Duryodhan lost the opportunity to rule and Yudhishthir was declared Yuvraj of Hastinapur.

In the epic that is Mahabharat, one can easily find what justice is and why justice cannot mean the same for everyone. We however do not seem to find this in the current judicial system of India, where justice is never achieved and decisions are only taken on the basis of codified laws. Our present legal system says that the law is equal for all, but it is totally flawed. I want to throw some light on codified Indian laws to give the reader a glimpse of the flawed structure of our legal system.

As a student of law, I have studied several laws in the last two years and realised that there is a darker side to the laws of this land.  I have learnt that the present legal system in India is of British origin. Until the Sepoy Mutiny of 1857, India did not have codified laws. Instead, ancient India’s judicial system was found to be the basis of doling out justice. Several texts of Dharmasastra, namely Manusmriti by Manu, Kautilya’s Arthashastra and several other texts by scholars served as laws which were binding on the people of this country. Most importantly, the judgment of the king was considered to be superordinate because the king was regarded supreme having material, spiritual and dharmic knowledge. There was also an active jury system in use for delivering justice.

After a conclusive victory in the Battle of Plassey, the British East India Company established Company rule in India and made Calcutta its capital.  Until the year 1773, the Indian Judicial System followed laws as stated in the ancient texts.  As the British Government wanted to make Indians their subordinates for the next 1000 years, it passed the East India Company Act, 1773. This was the beginning of the fall of the Indian Judicial System.  By passing this act, the British Government assumed indirect control over a large part of India. The East India Company became a mere agent of the British government to loot and destroy India for the good of England. It is believed that the Industrial Revolution in England was financed from wealth that was stripped from India.

In 1857, when the local sepoys in the service of the British realised the intentions of their masters, they began an armed rebellion against them. In 1858, the British government formally took charge of India from the East India Company. As the British wanted to rule India indefinitely, they took command of its legal system and passed several legislations legalising their predatory conduct, which proved to be devastating for India.

One of the interesting things about these British laws is that they are still in effect. It is a humiliating and disrespectful fact that around 34,795 British laws are still operational in the Indian subcontinent. The first act that was passed by the British Government after 1857 was the Indian Education Act, 1858. In ten years, the act would wash out the education system existent in India. Its main purpose was to shut down Indian temples of learning or “Gurukuls” where, at the time, more than a lakh students were enrolled.  An interesting and disesteeming provision of the act was: “higher education cannot be in a language other than English.” Soon, after the act came into force, many Gurukuls, schools and institutions in India became illegal. Even today it is hard to pursue programs of a professional nature in languages other than English.

Logic dictates that all education should be in the mother-tongue of the child. A major reason why college students do not take their studies and research seriously is because it requires original thinking, which is missing. Imagine American students receiving their education in Hindi. One might imagine where that would lead America.

Another interesting act passed by the British was the Indian Police Act, 1860. This act gave the police the power to attack and kill anybody at will, thus refusing to grant the right of defence to ordinary persons. Unfortunately, the Indian Police Act, 1860 is still in effect in India. The great Indian freedom fighter, Lala Lajpat Rai, also fell prey to this monstrous act–when he died in a police lathi charge. At court, the case was dismissed on the grounds that the policemen were doing their duty. In the name of maintaining law and order, the act gave them the right to physically attack civilians. Similarly, every year a large number of Indians are tortured or killed by the police precisely as a result of the act’s unjustified provisions.

The India Price Commission Act, 1863 was an act introduced by the British to ruin Indian farming and agriculture. After this act came into effect, farmers were prohibited from deciding the price of their agricultural produce themselves. Until 2012, the government had a monopoly in fixing the Minimum Support Price for crops, which was undesirable and unethical in all aspects. The act made the Indian farmer more helpless than he already was.

The British introduced the Indian Penal Code (IPC) in 1860 and this turned out to be another blow for the subjects of the empire. The act delayed the attainment of justice and immunised the British against penalisation for crimes committed, and destroyed the Indian Dharmasastras which preached the principles of natural justice. One of the most absurd provisions in the IPC was: “Women do not have a soul. Hence, they cannot be trusted as a witness.” This provision was in effect until 1950. It was only after constant opposition to the provision that three women witnesses were made equal to one male witness. Further opposition led this provision to be removed. Even today, crores of Indians are trapped and strangled by this law. Political parties often misuse the same to delay judicial proceedings and hamper justice. There is an immediate need to declare the act void and to replace it with ancient dharmshashtras which were the pillars of the Indian Justice System for thousands of years.

One of the most ridiculous laws is the Indian Independence Act passed in 1946. This, among other things, calls for the division of the subcontinent into three parts and for independence to be granted. The ridiculous aspect of this act is the fact that the British Parliament had granted India independence and it wasn’t India that had freed itself of colonisation. So, if for any reason, the British Parliament were to withdraw the Indian Independence Act, 1946, the partition of the subcontinent would cease to be valid legally. The British could resume ruling India under such a situation!

India’s legal system–previously codified by the British to legalise their loot of India–has now become an important tool to trap the common man. It is responsible for crores of cases pending at many lower, middle and high courts in the nation. There is an urgent need to throw out the justice system installed by the British and re-install the beautiful Indian justice system of yesteryear which is based on the principles of natural and dharmic justice. Establishing this new system would require original thinking which is only possible if we throw out English from our educational system and start teaching in regional languages. Only then can our society be truly empowered.

[Views expressed herein are the author’s own, and do not necessarily represent Jamia Journal’s editorial policy.]

[Naveen Kumar Sharma is a postgraduate student in the Department of Commerce and Business Studies. He can be reached via email at: [email protected]]