Even a basic reading of the collegium system for the selection of judges in the high court and supreme courts leads the unaware to realize the arbitrariness and opaqueness of the Indian judicial system. The unbridled powers of a select group of justices led by the Chief Justice are hardly inspiring for the delivery of an efficient legal system. As Dr SN Balagangadhara says, superimposing Western law on indigenous culture with their own ways of law and justice lead to severe distortions which we face today.
There is a need for further studies on how law and culture relate and how we can evolve better legal systems. The rhetoric goes about the great British law as a ‘gift’ to us. British society and law were corrupt to the core in the 18th and 19th centuries when they were ruling a great part of the globe. Their neighbors, allies, and cultural relatives saw them as corrupt, contemptible, hypocritical, and immoral. The British in India did whatever pleased them but the judges and bureaucrats clothed these acts in a legal language and many non-existent laws. Ironically, there was hardly equal justice in British India. Local European communities did not allow Indian judges and law officers to try them and they got away with the most brutal crimes through lenient European judges.
Indians, as cultural beings, believing the British law and institutions to be the ideal, mixed them with their own ideas relating to justice, truth, persons, and so on. The notions of truth and falsity play a crucial role in Law. These notions root in Christian theology. In Indian culture, there is a clear semantic distinction between lies and deception. Falsity, in its core meaning, is to be in error. The socialization process in Indian culture involves even learning to lie. Thus, lying under oath loses its reasonings of law (ratio legis). Yet, ‘perjury’ remains a punishable offense in the Indian legal system.
As Dr Balagangadhara explains in detail in his wonderful book, Cultures Differ Differently, in western culture, it is the fair, objective, and impartial law that judges and not the person of the judge. In contrast, the Indian judiciary sees itself as the ‘embodiment’ of justice dispensing ‘justice’, often completely independent of, or even oblivious to, legal provisions and statutes. Even for many people going to the court, the judge represents justice embodied and personified. This attitude helps us understand the massive corruption of the judiciary in India. Law in Western culture tries to reduce arbitrariness and capriciousness in settling disputes. But the imposition of the Western institutions in India encourages precisely that arbitrariness which law is supposed to prevent. The figure of the ‘judge’ now uses the legal institution, which gives him the power to do what he does, to make arbitrary pronouncements because of the culturally specific notion of the judge. In indigenous cultural institutions, reasonableness prevails because the judge faces the community directly and owes explanations. In modern courts, such constraints of reasonableness are absent.
Politics and law in Western culture are meant to further the general interests of society but not that of any single community, group, or individual, especially corporate interests. In India, the notion of ‘interest’ makes no sense. Strikingly, Dr Balagangadhara says, Indian culture does not have a vocabulary to understand any kind of discourse on interests- whether institutional, private, public, general, or social. If such is the case, legislations are meant to explicitly favour specific groups which would give them votes. The Parliament’s reasons, in implementing the laws, are not in the general interests of society but are as narrow as the reasoning of an individual who contemplates his own benefit. The British made laws that favoured British interests but cloaked them in the language of ‘general interest’ and ‘interest of the empire’. Protecting the British ‘interests’ later took the form of the ‘protection of minority interests’ in the Indian Constitution.
When the State promulgates laws that only favour and further narrow interests, citizens end up using such laws mostly retributively. Seeking personal vengeance (dowry, atrocity, and so on) becomes the major if not sole goal of the citizenry, when they go to the courts. Thus, when implemented in India, the institutions of Western law encourage just the opposite of what such laws are meant to do: a vengeful, spiteful, and ‘selfish’ citizenry. Instead of promoting a cohesive society, such laws encourage divisiveness and conflict in society. This is what we get when we superimpose Western law on indigenous frameworks. Our legal systems need a lot of deep thinking even as our judges are spreading out further in their extra-judicial activism and moral judgements on practically every institution in the country without looking into the mirror first.
RANDOM MUSINGS 