Adopt Ancient Indian Jurisprudence

By Parmanand Pandey
Supreme Court Judge S Abdul Nazeer must be complimented for having spoken his mind about throwing the colonial legal system by adopting ancient Indian jurisprudence. We have seen that most of our lawyers and the judges are so obsessed with the western legal system that they even refuse to see that it is full of flaws, and no one can expect to get real justice. A journalist friend of mine, who can legitimately be called a veteran, says that the present judicial system, which we have borrowed from colonial rulers clearly favours the rich and moneyed people. It also ingrains the idea of sycophancy and subservience. He says that such is the state of affairs of justice in our country that frequent use of ‘My Lord or Your Ladyship’ is considered to be the good courtcraft. The limit of the imbecility of the Advocates, particularly of the so-called Seniors, is seen to be believed. Even if their cases are dismissed at the threshold, they bow down their head by saying ‘Obliged Your Lordship/ Ladyship’. In this system, the poor person is not only harassed but is invariably denied justice. It is because of the existing legal system that the mountains of cases are found lying in different courts and are piling up with every passing day. The irony is that neither the judges nor legislators ever thought of changing the most unsuitable legal system that we have in the country.
Jurisprudence, as is known in common parlance, is the grammar of law. It throws light on the basic ideas and the fundamental principles of law. It provides a guideline to judges and lawyers in ascertaining the true meaning of the laws passed by providing the rules of interpretation. Is it not strange that most of the legal brains of our country are either unaware of or frown upon the legal theories propounded by Manu, Brihaspati, Yagywalkya, Parashar or Kautilya. We have a complete philosophy of Nyaya Shastra by Rishi Gautam, which is supplemented by Vaisheshik Darshan of Rishi Kanad.
Nyaya encompasses propriety, logic, and method, which are necessary to get to the bottom of the truth. It emphasises the science of causes (Hetuvidya), the science of enquiry (Anvikshiki), the science of correct knowledge or epistemology (Pramanshastra), the science of reasoning, innovation, innovation, synthesis (Tark-vidya), the science of discussion (Vadartha) and most the important is the science of uncovering sophism, fraud, fakery, and error (Phakkika), which has been developed into a shastra. Out of six Pramanas, the Vaisheshik of Rishi Kanad emphasised more on Pratyaksha (perception), Anuman (inference) and Prashastapad (syllogism). But these methods are hardly used in the present dispensation of justice. These methods, reinforced with the philosophy of Mimansha, can be immensely useful for easy, accessible, and cost-effective (cheap) justice to all. Unfortunately, these nuggets of justice have been given Cinderella’s treatment by our present judicial dispensation.
Some of our so-called legal luminaries have given undue importance to Naturalists like Aristotle, Thomas Aquinas, John Finnis, or Legal Positivists Like, John Hobbes, Bentham, Austin, HLA Hart or other Utilitarian thinkers like J S Mill and John Rawls. Dependence on the Colonial system is the main cause of judicial poverty and misery in our country. At a time when the present judicial system is fast collapsing and the use of Artificial Intelligence has become inevitable, there is an urgent need to think over our ancient jurisprudence.