Classical Hindu laws and modern India
How the gradual process of rendering Classical Hindu laws irrelevant worked over the centuries
The importance of Justice System for a society and a nation can hardly be overemphasized. Here is an attempt to understand the development of the legal - Judicial system in India and its effects on the Dharmic tradition.
A Justice system’s existence depends upon moral-ethical values of tradition and power to implement the value rule upon society. While the moral-ethical values of tradition are stored in religious edicts, the coercive power comes from the state. This balance gives stability and order to state and civilization.
The evolution of Indian legal system divides Indian law in Classical Hindu law, Anglo-Hindu Law and Modern Hindu Law. If we study the Justice System in India in this context, historically, we find that fall of Hindu kingdoms and series of invasions for more than 1000 years weakened the state support to law. Situation has been so bad that we are left with very little traces of records pertaining to institutions, statecraft and legal codes of medieval and ancient Hindu law.
In absence of a supporting state power the law was restricted to religious and social spheres only. Hostile and alien rulers and imposition of their law and cultural memes created a mindset wherein Indians see law as a random favour granted by powerful state which is devoid of rationale, morality and ethics; their identities, thoughts, philosophy and convictions. Such deeply ingrained defeatism renders modern educated Hindu with suicidal selfishness, fragile convictions and intellectual indolence.
When British power reached India, it was already reeling under illicit Islamic rule which had destroyed the dharmic value universe from Peshawar to Kamrupa and Kashmir to Rameshwaram. The East India Company introduced Mayoral courts (applicable for city limits) in Madras, Bombay and Calcutta in 1726, that had little moral or popular support.
After 1757’s war of Plassy British power increased substantially and with 1773’s regulation act the British parliament took a position to introduce British Judicial system in India. The Law enacted by the British Empire in India and Judicial system was essentially meant to facilitate transaction-trade, peace and order across the colony. In its initial days the East India Company being a foreign power had little knowledge on inclination to entangle in the social dynamics resulting from judicial structure. The higher judicial positions were especially restricted for Britishers; vast majority of Hindus and for that matter even Mohammedan subject had no relevance for them. Courts were symbol of imperial British power.
When British rose to power alien Islamic values were disproportionately powerful in India. The Sanatani Hindu psyche was squabbling, defeated, divided. The ability of people to collaborate and develop Jati and Varna structure into empire – state was lost. There was a lack of a holistic conception of state, though Chhatrapati Shivaji and Vijayanagara Empire did try to revive the Sanatani Dharmic rule in India.
The ancient Hindu law and systems were in shambles, a faint shadow of which was visible in some Hindu ruled states or village and caste panchyats. But legal structure cannot remain divorced from moral and ethical values that are preserved in religious philosophy. Thus world over justice system has been the prerogative of monarchies or councilors. Such direct connection between the local traditional values followed by people and justice system is vital for a nation. Unfortunately, this most obvious and natural thing is a mirage to common Indian even today.
In the absence of state supported collective and shared justice system the Sanatana society went into the shell of caste rules and rule and interactions with others become restricted. But the rule of imperial Mughal power was complete on the country.
The Judicial system introduced in India by the East India Company was essentially for efficient exploitation of India. Varna and Jati values and structures were demonized and weakened. Their natural interdependence and mutual support was replaced with strife for power under so-called ‘equality’ and democracy.
Missionary scholars concocted new theories to weaken cohesive elements of Hindu society. They mixed up Shruti and Smriti texts indiscriminately and with university academia, they created a new consensus which was further empowered politically, financially and socially by the British empire. The new education claimed that Caste (Varna) is fixed compartmentalized hierarchy that existed for exploiting the lower one, the associated Dharmic values and ethics were primitive and foreign aggressors raided India with a mission of bringing equality of freedom to the lower classes. These half baked theories are still taught to Hindus in schools and universities. Few Indians could preserve their mental independence and self respect and system ensured that they got no place or work in it.
The system for appointment of Indians into Judiciary (and even other Government services) was such that it excluded dharmic Indian and nationalist elements and promoted compromising brown sahibs in the government machinery. They were expected not to think, wear, eat and mingle in traditional Indian way. Ingenious techniques were employed to achieve this goal, like humiliating questions were asked in ICS and other exams and training of Brown sahibs (especially in civil services and Army) superiority of White Shaibs was instilled. English language, culture, food, mannerisms, attire became the new standard of civilization. The Judiciary was also among worst victim as along with deciding on mundane cases of transactional nature they had to decide upon the moral-ethical and dharmic issues often from alien anti-dharmic perspective. Later on it became one of the worst accomplice and pillar of imperial colonial order.
Even a most skeptic person has to believe in some fundamental things. If you cynically disbelieve and question every proposition, nothing remains except malicious propaganda. The antithetical and opportunist policy of Indian state created a situation where all fundamentals were brought under hostile scrutiny of various anti dharmic forces. Sanskrit, Varnashrama system, grammar, logic, aesthetics, art and literature all were brought under suspicion. Real or imaginary underdogs were created to demolish the whole superstructure of dharmic civilization.
It is well recorded fact that Judiciary and legislature of Independent India has shunned the dharmic value universe in attempt to advance cause of a progressive, socialist, secular state. Political leadership took a progressive rationalist stand for Sanatani dharmic tradition and diluted their values, belief systems and laws. At the same time the state demurred from taking similar progressive rationalist measures for so-called minority religions (chiefly Islam and Christianity) and conferred special treatment in personal law, education, and management of religious institutions. Being organized and proselytizing by nature, these religions have amassed disproportionately high political and media clout. The dharmic society was divided progressively with phony progressive legislations. This all would not have happened without active or passive connivance of judiciary.
