The dharmic tradition of Bharat permits peaceful plurality and orderly change as warranted by evolution, discoveries and technology. Lawmaking is the prerogative of the legislatures, which goes by the public need and opinion. The court should understand it
Dr TH Chowdary
RSS Sarkaryavah Shri Bhaiyaji Joshi, while addressing the mammoth rally at Ramlila Grounds of Delhi on December 9, said the public should be supreme and not necessarily the courts. He was referring to the Supreme Court and other courts giving verdicts in matters relating not to law but to tradition, custom, religious faith and popular public opinion. Unfortunately, the Supreme Court, of late, seems to be thinking that it can legislate whereas it should be interpreting law made by the legislators (State Assemblies and the Parliament in India). Once a British Member of the Parliament said that the Parliament could enact anything except that a man should be converted into a woman and vice versa. It appears that some of our courts, including the highest, seem to interpret the Constitution in such a way that their judgments are in the nature of making law. This had been pointed out by no less a person than Markandey Katju, a former Justice of the Supreme Court of India.
Here are some judgements which are in the nature of laws:
• No crackers and fireworks should be used before 8 pm and after 10 pm on Diwali day
• Motor vehicles should not be allowed to ply when they have aged more than a certain number of years
• Adultery is not a crime
• The offspring of ‘living together’ partners (but not married) can inherit the property of those unmarried couples
• Gay and lesbian marriages or the same-sex marriages are not illegal. They are an expression of the freedom of choice
• Sabarimala shrine could be visited by women of all ages
The Constitution of India is effective from November 1949. But India and Indian people and Indian society have been existing for thousands of years. People are not really stealing or committing murders and other crimes because there are laws. These crimes are happening in spite of the laws. But when there were no laws, it was morality and the society’s sense of what is right and wrong and the teaching of dharma /religion and sense of punya and pap (merit and sin) and the consequence of karma to be carried into next birth, that is the belief in rebirth that were restraining wrong-doing. It is these percept that have been restraining people from committing crimes. India has the least number of policemen for 100,000 persons among the 192 member countries of the United Nations and yet the crime rate is much less in Bharat than in the so-called developed countries of the West as the USA and the developing countries in Africa and elsewhere. Education in morality, right conduct, social obligations and a community of righteous people expounded in our great literature like Mahabharata and Ramayana and the knowledge of them being transmitted from generation to generation through parents to their children. It is expounded in classrooms by teachers dedicated to service with the idea of sculpting the children in their care into righteous citizens that mostly govern Bharatiyas’ conduct.
Some judges are delivering judgments ignoring the society’s history & traditions and beliefs of the majority populationAre we getting justice in courts within a reasonable time frame and are the criminals, tax evaders, terrorists and their accomplices being identified and punished? It seems doubtful. For example, the verdict of crime is given on the basis of evidence. Does a criminal knowingly leave evidence for the investigating agencies to come upon? It is generally known that criminals, whether economic or civil, are experts in the acts they commit and that there is hardly any evidence for the judges to punish the guilty. Secondly, cases are being adjourned again and again any number of times and the period between two adjournments is not days or weeks but months and sometimes the proceedings drag on for years.
The great example is that of the Ram Janmabhoomi in Ayodhya and cases of corruption, money-laundering and non-payment of income tax and so on. Besides these, the hierarchy of appeals suggests that we are in an appellate raj just like we had a permit and licence quota raj. Most criminals including money launderers and defaulters of bank loans are thriving because of the adjournment and appellate judicial system and expense of litigation. The offenders are affording Supreme Court lawyers who charge lakhs of rupees for each appearance for a few minutes’ argument.
Remember that the Indian society has been in existence for thousands of years without the courts that we now have today and it is the sense of right and wrong, fairness, morality and the belief in pap and punya and rebirth that have been checking widespread crime. We often hear that the criminals, especially if they are politicians or businessmen saying that a case filed in a court has a life of eternity.
There appear to be some persons who had been specially appointed to the higher judiciary on the need for committed judges to implement “socialism” and deliver “social justice”. They seem to have risen to very high positions in the High Courts and Supreme Court. They are delivering judgments in the nature of laws, ignoring the society’s history and traditions and beliefs of the overwhelming majority of the people. We must find a solution before people lose their faith in the judicial system, what with delays, forbidding expenses and ‘unjust’ judgments.
There are two types of corruption – monetary and moral. A senior advocate of the Supreme Court gave, within public view and hearing, a sealed cover containing the names of some former Chief Justices of the Supreme Court and their corruptions. He dared the sitting Chief Justice to open the sealed cover and disclose its contents. The CJ did not oblige. Moral corruption is even more dangerous; it allows the society and men to degenerate.
Finally, as Abraham Lincoln said famously, “public opinion is everything”, especially that which conserves social cohesion, national unity, the country’s integrity and the binding strength of enlightened and ennobling dharmic traditions. The Dharmic tradition of Bharat permits peaceful plurality and orderly change as warranted by evolution, discoveries and technology. Lawmaking is the prerogative of legislatures which go by the public’s need and opinion.
(The writer is founder of the Center of Telecommunications Management and Studies)