By Narasimhan Vijayaraghavan
Justice G R Swaminathan The inimitable Cho Ramasamy, the legendary editor of Thuglak, Tamil weekly, once said, with utmost conviction, “The Bharathiyasisation (he did not even say Indianisation, mind you) is long overdue. I was a lawyer in my previous avatar. And I was with the advocate general V K Thiruvenkatachari. Grant me that I knew a thing or two about the so called nuances and intricacies of our British judicial or legal system, as we inherited. I am particularly pained to take my shot at Stephen’s Evidence Act,1872 ( incidentally, it is not law in United Kingdom itself) for giving primacy to ‘Proof’ in a court of law rather than Truth which was at the very core of our ancient system for ages”.
He continued, “ The Rules of Evidence that Stephen so endearingly laid out for us was not recommended for his own brothers and sisters back home. I realized early in my career that once a honest and truthful citizen was summoned to the witness box, he lied through his teeth. Or he was told to, because Truth had to be Proved by Rules of Evidence. And a truthful witness was forced to lie, for winning a case was based on his deposition. And I realized that our honest villagers never lied in Panchayats under a neem tree, and after being sworn in to oath, over burning camphor to their presiding deity ( be he an atheist or agnostic), never ever strayed from the path of truth. Judgments were easy and right. Now in the name of Proof based on Rules of Evidence, we have turned the Indian judicial system hostile to We the People. No wonder, witnesses unerringly lie, in a court of law , as turning hostile is the name of the game”.
Being entitled to protect my source, I am not sharing the name of a good friend of Cho, a lawyer of repute,having exchanged multiple conversations, who shared with me the impish Cho quote, on reading Justice G R Swaminathan’s brilliant response ( Read Link- ( https://www.verdictum.in/top-stories/justice-gr-swaminathan-indianisation-of-judiciary-1454644 ) to the ‘Objection Overruled’ from the ‘Wokists’, to the ‘Indianisation of Indian Judiciary’, commended to by Justice Abdul Nazeer Sab,now, a retired Supreme Court judge.
Nazeer Saab was not a lone voice in the wilderness. As Swaminathan Bhayya has forceful support from the previous Chief Justice N V Ramana ( Read Link- https://www.thehindu.com/news/national/supreme-courts-views-on-indianisation-of-the-legal-system-have-varied/article38057819.ece ) ( who was a darling of these very wokes, please note- Read Link- https://www.livelaw.in/top-stories/cji-ramana-you-have-been-a-citizens-judge-senior-advocate-dushyant-dave-breaks-down-during-cji-nv-ramanas-farewell-207551 – for proof).
These so called ‘liberals’ are not just double-tongued. They have multiple tongues and replace one with another, as is their convenience. Welcome to the world of cancel culture, an Indian viral variant which mutates, as it suits these characters. And there is no vaccine other than firm and determined pushbacks, as from my friend GRS ( he needs no J to be a J).
One would confine this piece to the rules of evidence that GRS has beautifully alluded to , to puncture the votaries who oppose even a thought of Indianisation. They would like to hug tight the British legacy and the foreign language, which has made them become who they are and where they are , on the economic and intellectual scale. The reference to overreliance or total reliance on Proof or probative value as they call it,as it stands today, as scathingly alluded to by GRS, with multiple illustrations, is carried forward here.
Where are we today? Better off or worse. Mendacity is too pervasive, particularly, in the criminal Justice system. A witness turning hostile is now too commonplace. One is reminded of this passage written by Justice P N Prakash, Madras High Court, in the Introduction to the 150th year edition of Rattanlal & Dhirajlal The Law of Evidence,Butterworths LexisNexis, dt.4th Nov,2021.
“There is a forceful school of thought which says that Indians are not congenital liars as portrayed by the Europeans, but the long periods of slavery under various foreign rulers had made them so weak that they were forced to resort to deceit as a means of survival. Yet another school is of the view that the court system established by the British provided a fertile ground for perjury by the natives who did not have a sense of belongingness to it. Whether we like it or not, that even today, people respect courts more out of fear than out of any great love for it”. Well said, my other friend.
The late, lamented Justice M Srinivasan famously said, “Law is in search of Proof not Truth. To prove truth in a court of law, you need proof”. The witnesses are required to swear to telling ‘the truth and nothing but the truth’. But, our criminal Justice system is replete with the ‘unique phenomenon of hostile witnesses’ mutilating the justice delivery mode. It is an Indian version of Mendacity as virtue, to rescue the criminals.
One can illustrate with instance after instance, when Truth became a casualty and had to be ‘rescued’ by the likes of Justice P N Prakash or GRS. Just one, from popular vintage and of not so distant timeline would do, for now. As to how difficult the Judges need to invent and innovate to separate and get at Truth from need for Proof, founded on antiquated Rules of Evidence of 1872 origin.
One recalls the now well known decision authored by Justice P N Prakash, Madurai Bench, Madras High Court,in V P Pandit @ Attack Pandi case. The learned justices, B Pugalendhi included, tore the ‘rampant practice of hostile witnesses’. They also played video clips of the occurrence in court, and had the actors to identify themselves.
In an innovative demonstration of technology as a tool, ( the wokes should love it), they complied, not contrived, with the contours of evidentiary law for ‘proof to glean the truth’. It was a path-breaking verdict to turn the findings, eschewing ‘hostile testimony’ on its head, to show the way out of any impasse of such genre. The matter is pending before Supreme Court and the final imprimatur is eagerly awaited.
The learned judges were confronted with the ‘British’ Rules of evidence, which Nazeer Saab and GRS bhayya, tore into. If they had gone the beaten path, the culprits would have walked free. Their native ( read Indian, not borrowed) intelligence and brilliance saved the day to save ‘Truth’ from being mauled by rule premised ‘Proof’ in a court of law.
Let us get it right. Hanging on to the colonial mindset is itself a colonial mindset. Let us free ourselves to embrace our Bharathiya cultural moorings based on Dharma (an unparalleled expression encompassing so much) . It is time we did it. GRSJ ( here he deserves a J,) said, “ Truthfulness is the fundamental feature of our jurisprudence….. He said that the obsession with the admissibility of evidence and procedure is an absurdity of modern western jurisprudence…. Ours is Dharma which is preservatory in theme. Theirs is predatory in approach. Whether a predatory approach can be superimposed on a Dharmic society like ours is a fundamental question that we have to necessarily ask”,
It is a pity and singularly unfortunate that despite We the People voting in a government with Dharmic aspirations in their manifesto itself, eight years ago, not once but twice, is still not even off the blocks, on this score, for lack of conviction or fear of whatever.
The wokes have had it for seventy five years. Time we pivoted to where we came from and where we belong. A culture that Nazeer Saab and GRS bhayya ( not to forget N Ramana J) have boldly and proudly claimed as ours, with a dire need to Indianise.
I join the Sanjeev Sanyals, Vikram Sampaths and Sai Deepaks, to give a clarion call for immediacy of change to a Dharmic Rule of Law, and not JONATHAN FITZJAMES STEPHEN’s or Thomas Babington Macaulay’s.
It is a Dharmic duty for any government to get back to our Dharmic roots to ‘ Indianise the Indian Judiciary’.
You be the Judge.
( Co author of Rattanlal & Dhirajlal on Law of Evidence, Butterworths LexisNexis,2021-
practicing advocate in the Madras High Court)