Rathore and Goswami

But as we all know, what law in India is today owes an immeasurable debt to the era of
colonization, and above all, British rule. After all, the very idea of law as we presently conceive
of it in India is largely a transplant of 17th–20th-century British developments. Thus when we
consider jurisprudence in India – from Constitutional law and its philosophical interpretations,
to criminal law, the law of contracts and so on – we generally envision this wide historical
epoch, and within it circulate our attention back and forth from the present 21st-century
developments back to their 19th- or 18th-century origins, and then again return to the
contemporary developments. This is a perfectly valid way of understanding the Indian
Philosophy of Law

Indian legal philosophy scholars believe Indian political thought should articulate its concerns
through native, vernacular or indigenous (‘experience-near’) conceptions, and begin the process
of sloughing off the conceptual apparatus hitherto worked with, which has too often ensured that
Indian political philosophy was realized as a derivative discourse incapable of addressing the
realities of the ground situation as they seemed to present themselves.

Many like J.Iyer argue foreign theories like that of Austin, Raz are superimposed onto India, and
our law is saturated with theories from the west

New tradition of Indian legal theory is attempted by many

Indian law should be sui generis and inward looking

Jurists and legal theorists recognize the fundamental modernity of our primary legal (and
political) institutions, and opt rather for a hybrid approach, which fuses some of the values and
traditions of the ancient view, with the profoundly egalitarian, pluralist and progressive elements
enshrined in the Indian Constitution. But the question, What is authentic or indigenous Indian
Philosophy of Law?, is a challenging one, and the temptation of leaping back to a presumed
glorious age, that ‘wonder that was India’, remains strong in current theoretical discourse.

Bidi Supply Co. v. Union of India – 1956 are often cited: I am clear that the Constitution is not
for the exclusive benefit of the governments and States; it is not only for lawyers and politicians
and officials and those highly placed. It also exists for the common man, for the poor and the
humble. Such thought has culminated in India developing a robust practice of Public Interest
Litigation.

Mechanistic transplantation of foreign laws is unwarranted without taking Indian circumstances

into account. However, just the same, foreign best practices, developments in law around the
world, must not be eschewed just on account of its foreignness. Even Justice Krishna Iyer was
very fond of citing the United Nations Universal Declaration of Human Rights, and numerous
relevant cases of other jurisdictions, including the Anglo-American world, if the occasion were
opportune.

Gandhian ideas are still heavily debated

He became a lawyer in S.Africa and helped an indentured labourer from India, Balasundaram, be
released from his employer who had attacked him. His indenture was transferred to another and
was a win for the Indian community

. Gandhi moved from being the lawyer who got his clients released on bail to becoming the
accused himself as he confronted laws which were patently unjust. He decided on a new strategy
of actively disobeying laws which were unjust and hence going against his conscience, divesting
the power and authority he had as a lawyer and embracing the vulnerability of one who chooses
to suffer the consequences of disobedience. He went for satyagraha . This involved the
systematic courting of arrest. When arrested, it involved entering a plea of guilty and asking for
the highest penalty under law. This of course, opened an even wider engagement with the law,
exposing unjust laws before the court of public opinion

An excellent example of challenging the state’s monopoly on truth was the Report prepared by
the Indian National Congress on the Punjab Disturbances in 1919. After the Jallianwala Bagh
massacre, the government set up a Commission of Inquiry under the Chairmanship of Lord
Hunter. This commission was boycotted by the Congress as it was not seen as neutral enough.
Instead of participating in the Hunter Commission, the Congress chose to conduct its own
inquiry through a team headed by Gandhi. The objective clearly was to ensure that the state was
not able to control the truth of what happened at Jallianwala Bagh through its appointed
Commission. In the Report which the team came out with, Gandhi pays close attention to ‘facts’
and contextualizes the massacre within a larger history of British colonialism. While Churchill
contended that Jallianwala Bagh stood in ‘sinister and singular isolation’ (Dwivedi, 2016: 147),
the Gandhi-authored report sees the massacre as a logical end of British policy in Punjab.

The Punjab Report is the forgotten ancestor of human rights reporting in India. Gandhi drew
upon his skills as a lawyer to construct an ‘alternative truth’ to the state-authorized truth.

Gandhi challenged the legal system, arguing that it bears no inherent connection with justice.
Gandhi concluded his remarks by summarizing why he is a disaffectionist, before seeking the
‘severest penalty’. His statement is a powerful indictment of the entire colonial system. Gandhi
succeeded in disrupting the link between law and justice; after Gandhi’s speech, the colonial
state’s legitimacy was disrupted, and the moral centre cleaved towards Gandhi. It became more
of a trial of the state and its legitimacy.

Thus, when Gandhi makes the celebrated gesture of disobeying the law, he is in his defiance
reaffirming the fact that law must have a connection to justice. He is implicitly asserting that if
law is to be law at all, it cannot be linked to violence and force but must instead be linked to
justice. The disobedience of law is premised upon the fact that the law bears no relation to justice
and for law to have a claim to a citizen’s obedience it must satisfy the condition of being just. It
must be linked to dharma.

Conclusions-legal theory and practice must emerge by engaging with one another.

Second, procedure is a useful shield against state oppression. He used procedure to defend
Indians in S.Africa. Procedure is still used as a defence for fundamental rights. Challenges to
validity of TADA and POTA have come from procedural questions, that the union has no
legislative competence on terrorism

Ambedkar’s conception of law

Law is a command.

Such a command, which is issued by a political superior to a political inferior.

A political superior is one who is obeyed ‘by and large’

Challenges what we define as law- is it just state law or even customary law?

Ambedkar believes large swathes of Hindusim to be actually be law that is used to enforce the
caste system.

Rules of caste enjoy legitimacy in India, leading to the presumption that anti-caste laws are not
recognized that way. So, law of caste has greater social legitimacy than state law.

He doubts whether rights against untouchability are rights at all. Law guarantees the
untouchables the right to fetch water in metal pots. Hindu society does not allow them to
exercise these rights. . . . In short, that which is permitted by society to be exercised can alone be
called a right. The right which is grounded by law, but is opposed by society is of no use at all.

In a paradoxical sense, when it comes to the question of caste, the caste-based rules of society
enjoy the status of law, with the law of the state being consigned to being nothing more than an
ineffectual commandment

In Dr Ambedkar’s analysis the coercive power of the law is a force which should be mobilized
even if it be against a culturally and socially sanctioned prejudice of the majority community

However, such counter-majoritarianism is not wholly effective.

Rights are protected not by law, but by the social and moral conscience of society. . . . But if the
Fundamental Rights are opposed by the community, no law, no parliament, no judiciary can
guarantee them in the real sense of the word.
The particular concept contributed by Dr Ambedkar to current political discourse is the idea of
‘constitutional morality’. There are at least three references in Dr Ambedkar’s corpus to the
notion of ‘constitutional morality’. The most famous reference to the idea of constitutional
morality was of course in the Constituent Assembly while presenting the draft Constitution.

Constitutional morality means paramount reverence for the spirit of the constitution

At its heart, Dr Ambedkar’s notion of constitutional morality is a response to the particular

conditions of India, where democracy remains but a top soil. If majorities will be crafted purely
on the basis of caste and religion, what would happen to the minorities? Would not minorities be
at the sufferance of majority opinion which misunderstands democracy to be equal to popular
sovereignty? The first time the concept of constitutional morality as propounded by Dr
Ambedkar found a contemporary public resonance was when it was cited by J. Shah in his
celebrated decision in Naz Foundation v. NCR Delhi when the court ruled that Section 377 of the
IPC was ultra vires Articles 14, 15 and 21.7 The dilemma faced by the Delhi High Court was in
crafting a judgement which would secure the rights of the LGBT community against the
viewpoint of representatives of religious communities that homosexuality was against their
religious beliefs and hence against public morality. The Court chose to sidestep the debate on
religion and sexuality by arguing that it was not a relevant consideration at all. Even if the
majority of the followers of a particular religion was against homosexuality and by extension the
‘public morality’ was against homosexuality, even then the public morality would be trumped by
‘constitutional morality’. Said in the judgment-

Popular morality, as distinct from a constitutional morality derived from constitutional values, is
based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that
can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public
morality.