Let Us All Work For the Greatness Of India

Our Judicial System – A Perspective

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From our discussion on the serious flaws in our judicial system and the suggested reforms in the earlier article, it should be apparent that the fundamental thing in the whole is the national character. Unless people are willing and able to stand for the truth rather than their narrow self-interest, no edifice of laws and ingenious judicial structure can be of much help. Given the low level to which the national character has sunk, especially during the last fifty years, none of the proposed reforms in our judicial system – short of an evolution of it towards a system based on deeper values – can be expected to lead to any lasting improvement. Undoubtedly, they may change and even slightly improve things in the short-run, but it is only a matter of time before the actors in the judicial arena are able to learn new tricks or rather dig new holes – the digging getting easier and easier as the layer of national character supporting the whole edifice gets thinner and thinner – to circumvent or bypass the obstructions created by the new rules and procedures (implementing the reforms) which soon end up making the judicial system even more cumbersome without making any substantial improvement in its actual functioning. What really counts is the actual character or psychology of the individuals and not any outer structure of rules and regulations and professed – only professed, never sincerely believed – norms of morality or generally agreed upon propriety. And we all know what has become of our character and psychology and how its core – just behind the veil of our acts and deeds and professions – has gotten stuffed with selfishness, greed and lust leading to an unrepentant pursuit of personal interest and desire by the individuals and the groups. We must realise, once and for all, that in such a scenario no outer machinery, however ingenious and supported by “all-powerful” Science and its progeny – Technology – can in the end prevail against the craftiness of human nature which can be controlled and overcome only by an appeal to something deeper (soul or spirit) in it than the surface mentality, never otherwise. Sri Aurobindo wonderfully pointed it out when he wrote:

This erring race of human beings dreams always of perfecting their environment by the machinery of government and society; but it is only by the perfection of the soul within that the outer environment can be perfected. What thou art within, that outside thee thou shalt enjoy; no machinery can rescue thee from the law of thy being.”1

Since it is a basic tenet of the functioning of our being and nature, to try to work things out in contradiction to this with the help of ingenious outer machinery is foolishness – a foolishness which pervades all the attempts of the modern materialistic societies which are infatuated with the idea (and prospect) of an unlimited progress with the help of Science and have been trying – in spite of repeated failures which have failed to dissuade them – to perfect human nature with the help of the machinery of government and society. The story is repeated in every field – economics, politics, judicial system, health and education, etc. The story is the story of the labour of the Sisyphus. Take for example the field of government development spending undertaken with an avowed aim of improving the material condition of the people and to produce desirable effects on the functioning of individuals and groups. If we have an utterly corrupt and inefficient postal system then it will be an utter foolishness to waste time and energy in repeatedly and enthusiastically posting urgent letters through such a postal service. After few miscarries one would be expected to start exploring alternatives but no, not in the field of government development spending. Who is there who – unless he is a recluse or a world shunning ascetic – lives in India and hasn’t made his unpleasant acquaintance with the rude government machinery and its inefficiency and corruption, which are largely a product of the government’s ill conceived adventures aimed at bringing about desired changes in the well being and the functioning of individuals and groups in the economy. Late Shri Rajeev Gandhi, when he was the PM in middle and late eighties, admitted in a public meeting that only a very small fraction – say 17 or 18 paise out of a rupee – of government money reaches where it was intended and the rest gets absorbed by the middle layers. This bothered Shri Gandhi, but what did not seem to have bothered him, and what still does not bother our leaders, is what this money has been doing to the character of hundreds of millions of our people who are exposed to this kind of theft of public money. This is a far greater loss with very serious consequences even for the very existence of the nation, for, as the students are taught in schools, when money is lost, nothing is lost; if health is lost, something is lost; but if character is lost, everything is lost. The present condition of our national character is at the root of the malfunctioning of all our systems and institutions and groups. This is a canker eating at the core of our national life.

All this was only by way of a useful digression to bring the whole problem into a sharp focus. It should be very clear now that if we want a lasting and truly effective and real improvement in our judicial system or, for that matter, in any system then there is no substitute for a support from something deeper in human beings, be it character, moral values and lofty idealism on the mental plane or, better still, an opening to a consciousness greater than the ordinary human mental consciousness. In pointing out these basic things, it is not our intention to suggest that all attempts to improve the state of things in our judicial system are entirely worthless. Undoubtedly, all judiciously planned and skillfully executed attempts directed at the improvement in the functioning of our judiciary may be effective to some extent, even to a great extent, but only in the short-run unless supported by something deeper and higher which is usually there behind truly sincere human efforts in any field. Thus, the present government, if it makes sincere efforts in this direction, will be doing the right thing.

The most harmonious and desirable condition of a society is that in which there is no need of a judicial system at all. A more and more elaborate judicial system becomes necessary as disharmony grows in a society. Without an upliftment of character or consciousness no outer machinery can really deliver the goods in the long-run. Outer machinery can sometimes be a useful instrument of consciousness, but never its substitute. Higher the supporting (pervading) consciousness, lesser will be the need of an elaborate outer machinery which will move towards an increasing simplification and eventual disappearance as the higher and higher levels of consciousness are approached. In the reassuring words of Sri Aurobindo, “Governments, societies, kings, police, judges, institutions, churches, laws, customs, armies are temporary necessities imposed on us for a few groups of centuries because God has concealed His face from us. When it appears to us again in its truth and beauty, then in that light they will vanish.”2

(I) Traditional Hindu Yugas (Ages) and the Growth of Judicial System

The four Yugas are Satya, Treta, Dwapar and Kali Yuga. The Satya or Krita Yuga is the Golden Age when men are full of might and wisdom. In this Yuga Vishnu incarnates as Yajña, as the divine Master in man to whom men offer up all their actions as a sacrifice, reserving nothing for an egoistic satisfaction. This is possible because people in this age, live in their inmost being in full harmony with Truth. This age of harmony and a condition of human freedom and natural and spontaneous coordination may have resulted in an entire absence of government. At any rate, given certain spiritual conditions which would constitute a government of God among men or, in the language of Christianity, a kingdom of Heaven on earth, the elaborate arrangements of modern administration, made necessary because of human depravity and the needs of our Iron Age (Kali Yuga), would be unnecessary. The question of a judicial system does not even arise in such an age.

The next age – the Silver Age – is called Treta, the age of Dharma where Vishnu descends as the Chakravarti Raja – the sustainer of society’s righteousness, its sword of justice and defence and preserver of dharma. He gathers a number of human communities under his unifying sway. This age is known for its righteousness and is popularly characterized as Rama Rajya. In this age, the Raja’s officials sleeplessly look after the good of the people and no elaborate judicial system is needed because there is hardly ever any occasion for disputes. The Raj Darbar itself may serve as the court because – as one can gather from the description of Sri Rama’s Darabar in Valmiki Ramayana – the petitions before it are so rare that the king’s ministers and officials are always looking for, but are rarely able to come across a petitioner or an aggrieved person – even an aggrieved animal! In Dwapara – the Bronze Age, the age of doubt – there is a further decline in man’s character, powers and capacities. Intellectual regulation substitutes for the rule of Dharma. Ideas, thoughts and emotions assume much greater prominence, and doubt sets in man’s heart and mind and he has to seek the aid of written word or Shastra to properly direct his actions. Vishnu takes the form of King or Ruler who begins to take the help of written word – but only help, there is no mechanical subjection to it like in the present, rather he uses his understanding and intelligence freely along with the highest available recorded wisdom of the race – the Shastra, to guide his actions. In the Kaliyuga or the Iron Age, there is a further diminution in man’s capacities and powers who begins to be increasingly subject to his instincts, impulses and desires. Written word is not sufficient to maintain order in collective life and subjection to some kind of outward machinery or system – which still remained very simple in oriental societies – becomes necessary.

In the modern Western materialistic cultures – which India is at present trying hard to emulate – system, organisation, machinery seems to have attained their perfection. Bondage to these has been carried to its highest expression and man’s inner spiritual freedom is getting increasingly slain in modern societies because of their passion for organising external liberty or/and equality. When the inner freedom is gone, the external liberty follows it, and a social tyranny more terrible, inquisitorial and relentless than any that caste ever organised in India, begins to take its place. The process that began in the early years of last century producing its fruits in the form of Communism, Nazism and Maoism still continues in this century which began with a worst form of international terrorism fueled by religious intolerance.

(II) The British Judicial System

The period of European history from the fall of the Roman Empire in the West to the beginning of Renaissance is known as Middle Ages or Dark Ages. These ages were marked by the predominance of Christian Theology (Pope & Catholic Church) with no room for Philosophy and Science because the mediaeval Theology did not care for these fields of knowledge. In fact, Science was guillotined wherever its presence attracted her attention. There was also needless and severe persecution of those considered guilty of open or implicit “questioning” or any behaviour deemed contrary to God by the Catholic Church. The records of this period are full of bloody stories of ruthless tortures and murders by the Catholic Inquisition which during three hundred years of its witchhunt burned at the stake an astounding five million women.3

Renaissance liberated Reason, and Science which is based on it, began to avenge herself against the Church – her old oppressor. Science began to assert itself as Reason began to increasingly replace religion in man’s living room. The Secularist centuries, especially the nineteenth and the twentieth weighed the balance down very much in the direction of Reason. The British Judicial System, which the British imposed on India in the nineteenth century and which it has kept intact even after her independence, was the result of the application of human reason to this field. The new system owed much more to Roman law and jurisprudence than to credal religion whose undue interference in judiciary – given the bitter experience of the centuries of Catholic Inquisition – was rejected entirely. To rule out any repetition of the instances of outright injustice and crude persecutions based on blind prejudices which characterised the Middle Ages, broad rules and procedures and principles – like the one requiring that an accused be considered innocent unless proven guilty beyond a reasonable doubt – were enacted to guide the courts and judges – who were now to be subject to provisions of the laws and acts passed by the Parliament – in their conduct. Another important development was a general acceptance of the principle of complete freedom of the judiciary from any interference by the executive branch of the government.

(III) The Present Working of the System

In the present day system, a trial court judge is bound by the established rules and procedures for finding the truth of the matter and the penalties for different kinds of offences are also well defined – though there is always some leverage for the court’s discretion – to ensure that the offender is protected against the whims of the deciding judge. But this is a double edged sword because it also means that even if the judge has been able to independently find out or is reasonably sure – through the use of his subjective faculties – about the truth of the matter, he cannot decide on this basis alone or even chiefly but must go by the “objective” finding that may emerge by submitting to the rules and the procedures established for the processing of the available evidence – which, in the present day courts seems to depend a great deal on the skill of the lawyers and eagerness and capacity of the contestants and need not have anything to do with the truth of the matter.

The present working of the judicial system is aptly summed up by the popular saying that the Law is blind and has to be led by others to the truth. In the present day Indian Courts where even the integrity of the crucial participants who are supposed to lead the Law to truth – the lawyers and the judges and the witnesses – has become highly questionable, the relative capacity and eagerness of the contestants has become the single most important deciding factor. Obviously, with this kind of dilution in the character of the participants or actors in the drama, the truth or right has little chance of prevailing in our Courts. But even without this serious dilution, the system has very serious problems of its own, inherent in its very constitution, which have been powerfully brought to light in the following remarks of Sri Aurobindo, made at the beginning of the last century, on the functioning of the British Courts. “Under a civilised disguise these Courts are really the mediaeval ordeal by battle; only in place of the swords and lances of military combatants we have the tongues and technicalities of lawyers and the mutually tilting imaginations of witnesses. The victory is to the skilfullest liar and the most plausible workman in falsehoods and insincerities. It is largely an elaborate pitch and toss, an exhilarating gamble, a very Monte Carlo of surprising chances. But there is skill in it, too; it satisfies the intellect as well as the sensations. One should rather call it a game of human Bridge which admirably combines luck and skill, or consider it as an intellectual gladiatorial show. In big cases the stake is worthy of the play and the excitement, a man’s property or his life. But woe to the beaten! In a criminal case, the tortures of the jail or the terrifying drop from the gallows are in prospect, and it is rather the hardihood of guilt than the trembling consciousness of innocence that shall best help him. Woe to him if he is innocent! As he stands there, – for to add to the pleasurableness of his condition, the physical ache of hours of standing is considerately added to the cruel strain on his emotions, – he looks eagerly not to the truth or falsehood of the evidence for or against him, but to the skill with which this or that counsel handles the web of skilfully mixed truth and lies and the impression he is making on the judge or the jury. A true witness breaking down under a confusing cross-examination or a false witness mended by a judicious reexamination may be of much better service to him than the Truth, which, our Scriptures tell us, shall prevail and not falsehood, – eventually perhaps and in the things of the truth, but not in the things of falsehood, not in a court of Justice, not in the witness box. There the last thing the innocent man against whom circumstances have turned, dare tell is the truth; it would either damn him completely by fatally helping the prosecution or it is so simple and innocent as to convince the infallible human reason of its pitiful falsity. The truth! Has not the Law expressly built up a hedge of technicalities to keep out the truth?”4

That this must be the fate of any system based predominantly on Reason is made vivid by the following lines of Savitri:

“An inconclusive play is Reason’s toil.
Each strong idea can use her as its tool;
Accepting every brief she pleads her case.
Open to every thought, she cannot know.
The eternal Advocate seated as judge
Armours in logic’s invulnerable mail
A thousand combatants for Truth’s veiled throne
And sets on a high horse-back of argument
To tilt for ever with a wordy lance
In a mock tournament where none can win.”5

In the old Indian system, the judicial authorities – village Panchayats, Judges, Rulers and Royal courts – were responsible for finding the truth of the matter for which they were free to use their skills and ingenuity with which they were normally highly endowed and to do whatever else was necessary to get to the bottom of the truth of the matter. A prospective offender knew that, given the efficiency and unquestionable integrity of authorities, the chances of his offence going undetected were virtually nil and the result was that there were very few cases – a good indicator of the health and efficiency of the system – that ever reached the courts; unlike today, where, if one is prepared to put a sufficient amount of energy (time and money) into the case, one can be reasonably sure of winning or, at least, indefinitely postponing the final adverse verdict. Since our courts are overburdened with cases, the appointment of more judges, the amendment of the CPC and the establishment of “fast-track” courts are some of the measures that have been undertaken to improve the condition. All such measures or suggestions coming out of a sincere desire to improve the functioning of our system should be welcome even when apparently misplaced and, therefore, likely to come to nothing in the long-run. For, such is the nature of this world that, often, it is the splendid failures that sum to victory – a victory that can never be won until we begin to realize that the root of all our problems is not the politicians, the government officials, the lawyers, the judges, the common men or, to put it in one word, the Others but rather, Ourselves. If we wish to have a perfect society, we must begin with our own perfection because, as Sri Aurobindo so beautifully points out, “A perfected human world cannot be created by men or composed of men who are themselves imperfect. Even if all our actions are scrupulously regulated by education or law or social or political machinery, what will be achieved is a regulated pattern of minds, a fabricated pattern of lives, a cultivated pattern of conduct; but a conformity of this kind cannot change, cannot re-create the man within, it cannot carve or cut out a perfect soul or a perfect thinking man or a perfect or growing living being. For soul and mind and life are powers of being and can grow but cannot be cut out or made; an outer process or formation can assist or can express soul and mind and life but cannot create or develop it. One can indeed help the being to grow, not by an attempt at manufacture, but by throwing on it stimulating influences or by lending to it one’s forces of soul or mind or life; but even so the growth must still come from within it, determining from there what shall be made of these influences and forces, and not from outside. This is the first truth that our creative zeal and aspiration have to learn, otherwise all our human endeavour is foredoomed to turn in a futile circle and can end only in a success that is a specious failure.”6

References:

1. Complete Works of Sri Aurobindo 12, Page 468
2. Complete Works of Sri Aurobindo 12, Page 465
3. Dan Brown, The Da Vinci Code, Doubleday 2003, Page 132
4. Complete Works of Sri Aurobindo 12, Pages 47-48
5. Complete Works of Sri Aurobindo 33, Page 252
6. Complete Works of Sri Aurobindo 22, Pages 1058-059

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