By Adv.Nishi.S
Keeping in mind the diverse culture professed in India, the framers of the constitutions drew its features from many sources. It will be more pertinent to say that at the time of framing the Constitution our frames were backed up with the knowledge of British law. They depended upon Government of India Act 1858, Indian Councils Act 1861, Indian Councils Act 1892, Indian Councils Act 1909, Government of India Act 1919, and Government of India Act 1935 and the Indian Independence Act 1947. All these Acts were the laws passed by the Parliament of United Kingdom.
Attractive provisions under the Government of India were that, all the property and other assets of the East India Company were transferred to the Crown. The Crown also assumed the responsibilities of the Company as they related to treaties, contracts, and so forth.
Even, the Indian Independence Act 1947 was passed by the Parliament of the United Kingdom which partitioned British India into India and Pakistan.
The present Constitution of India is thus drawn mostly from British law. The last legislation of British India which led to the creation of the two independent nations of India and Pakistan provided for the division of the erstwhile Constituent Assembly into two, with each new assembly having sovereign powers transferred to it, to enable each to draft and enact a new constitution, for the separate states.
Stepping in the land of India, with a huge volume of Vedic principles, which were the coded law tuned with that of the nature, none of the frames of the Constitution were able to churn out the legal principles hidden in the Vedic laws. All the principles enshrined in the Vedas were considered as custom and the out come of Vedic principles through blind interpretations through millenniums were misrepresented as superstitions. Doing a postmortem of superstitions, through a process of interpretation, we can find that most wonderful truths lie beneath.
Similar to our present Constitution, the ancient Bhaarat culture too dealt with the trinity of Legislature, Executive and Judiciary and the socio economic and political situation has been necessitated a lot, through out the reigns of various rulers in epics, time immemorial.
The eminent members of our constituent assembly having diverse culture and knowledge within their Dark self of their mind, drove them unconsciously to draft the present constitution consciously with their unconscious force embedded within them. Working together they reached the principles of trinity, The Brahma, the creator or the Legislature, The Vishnu, who guards the law equivalent to Judiciary, and The Siva, the destroyer which can be compare with the Executive. None of them are supposed to interfere into the powers of each, still all are inter-dependant.
The time when calligraphy were not in existence, our ancestors communicated through various other forms throughout these innumerable eras, without draining the values. But, the various foreign invasions in India interrupted the communication mode, and lead to misinterpretation of the Indian culture as superstitions, as the invaders were never and ever capable of capturing the thought wave length of the Indian heritage. A group of ten people playing a game of ‘Chinese Whisper’ making a mistake and misinterpretation of the original communication is a simple example of improper communication.
From the words of Swami Vivekananda, Westerners need to walk 1000 years forward for development but we, the Bhaarats need to walk 1000 years backward for our development. If the members of our constituent assembly knew the spirit of this words and were able to consider, interpret and adopt the principles hidden in religious text of various religions along with the British laws, ‘consciously’ we ought to have adopted ourselves with a more vibrant constitution than the present, along with a Uniform Civil Code.
Law in connection with geographical condition of India
Geographically, half portion India lies in the Torrid zone and half in the Temperate zone which cannot be overruled by framing a law. This is one of the reason for its diverse culture. Nature has it’s own law for each geographical area of diverse nature. The other major land which covers Torrid zone as well as Temperate zone is Africa which includes many dangerous land areas as well as water bodies are abundant in natural resourses. The Dark continent by its name was literally like that because of its geographical diversity, less conveyance and communication mode as well as dangerous area for human inhabitants.
The Indian culture was more diverse as it is geographically diverse in its nature with comfortable human inhabitance and abundant resources. Many reforms were done through millenniums in India by various kings in each era. All were based on jurisprudence, even though the word jurisprudence has nothing to do with it long back the era. Whether law is enacted or not, natural law always exists. When law is enacted in accordance with nature, it balance the natural principles. But when laws are enacted with principles against the laws of nature, it becomes ultravies the constitution of the nature.
The contents, principles and practices of all religious texts evolved from the knowledge of law of nature. When Jesus, Mohammed and other prophets achieved it through their life experience in due course unconsciously, sages immemorial, as well as Buddha obtained it through heritage and experience through tough practice consciously which lead to the opening of the ‘Dark self’ of the mind, which is still not explored by Psychologists, as they were not able to connect the ideology of spirituality and psychology.
Constitution of Judiciary in India
Part V chapter 4 of the Indian Constitution deals with The Union Judiciary. It starts with Article 124 with establishment and constitution of Supreme Court and ends with interpretation in Article 147.
Staring from Justice H.J.Kania to Justice.Sharad Aravind Bobde our judiciary made many reforms in the working of our Constitution. I would like to quote that, it is unfortunate that Justice V.R.Krishnayyer was not able to serve the country as the Chief Justice of India, eventhough he was a judicious person, with rich heritage and spiritual capability. He was aware of his consciousness and did accordingly.
As per Art.130, the Supreme Court is vested with the power to sit in any other place other than Delhi, with the approval of the President. The litigants in India has raised in large, one because of the knowledge of their rights and the other because of ignorance of their duties. So now it’s time to start e-bench of Supreme Court and High Court on zonal basis.
The video conferencing and e-filing, e-payment set up is to be advanced through amendments in procedural laws. When such systems are implemented, before transferring the claim amount to the client’s account, the percentage of advocates fee is to be transferred to lawyer’s account considering the security and safety of lawyers with appropriate amendments.
Subordinate Courts
Chapter VI of Part VI of the Constitution of India deals with subordinate courts. The report of the Law Commission stating that a member of the All-India Judicial Service would be required to learn one more language over and above his mother tongue and once he is allotted to a State keeping in view the fact- inadequate knowledge of regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence pronouncing judgments, no problems would arise on the ground of language. But the problem arises when the Judicial officer becomes a tool to implement law.
It is Justice to be guarded and not law.
Law is only a tool to deliver Justice.
So Law should not be allowed to rule Justice.
This is the basic principle behind natural justice. But at present law rules Justice. This happens not because of insufficient laws, but because of the interpretation and application of law within the literal sense without applying practicality and also the submissiveness and fear of the subordinate judiciary over the Higher Courts. It doesn’t mean that the subordinate judiciary should not obey or fear the apex authority. It should, but training to Judicial Officers are to be given how to apply law in practical for delivering justice. Persons appointed in Judiciary should have practical knowledge in professional advocacy and client dealing. Only such a person can feel the pulse of public. Freshers who are appointed as Munsiff/Magistrates lacking practical difficulties of a practicing lawyer can apply law only literally and will be a hindrance to deliver justice. Practical experiences cannot be achieved academically. One has to feel it. A person less than five years of legal practice should not be appointed in any judicial cadre.
Capital Punishment and solitary confinement
The Supreme Court In Bachan Singh vs. State of Punjab (1980) (2 SCC 684) held that death penalty should be imposed only in “the rarest of rare cases.” Whether deterrent or reformative it is to be noted that when rarest of rare become common, punishment to that effect also is to be made common. One who takes off another’s life without any authority, has no right to plead, for his life. The thoughts and acts of such criminals are shared among the society which will pollute the society. Through capital punishment such persons can be wiped out from the material world. But considering the spiritual world, they remain. In our constitution, we don’t have the provision to talk about such things, and so it is immaterial to talk or write about to that point.
Solitary confinement is the most rigorous punishment than death sentence. The two extremes of solitary confinement is insanity or on the other hand enlightment. A long period of solitary confinement makes a person lose either his consciousness or recover his consciousness. When one loses his consciousness, we say he is insane. The level of acute insanity can be controlled only by passing electricity or by undergoing shock treatment. When meditation process is made tremendous, the solid particles inside the body vibrates and consciousness awakens. But when a criminal is compelled to undergo acccute meditation, acute negative energy emerges from him which leads to insanity unless guided. So meditation for criminals are to be given only under supervision.
Reformation
As part of reformation, many methods are adopted in prisons. When convicts come out reformed, under trials come out with harder mind. Even though a person is reformed from his past, social stigma remains which is a natural psychological process of normal human beings living in a society. Reformed persons should also be made capable of walking through such society and live and a lead a peaceful life.
(The Author is a senior member of Trivandrum Bar Association. Her contacts: Ph.790 784 7105, [email protected])
