Constitution is evolving to ‘swadeshi’, says Presidential Reference Bench

The Presidential Reference Bench, besides advising President Droupadi Murmu not to fix timelines for Governors, opined that the Constitution of India has become a truly living ‘swadeshi’.

The five-judge Bench, headed by Chief Justice (retired) BR Gavai, observed in the 111-page opinion: “The point to be made is that the Constitution of India has not only been transformative in its adoption but has been and continues to be transformative in its application and interpretation, shedding its colonial remnants for a vibrant and thriving Swadeshi foundation.”

The reference opinion does not cite a single piece of foreign jurisprudence to advise Chairman Murmu.

Acknowledging that the Constitution draws inspiration from many sources abroad, including the workings of the Westminster parliamentary model in the UK and the separation of powers doctrine from the US, the Supreme Court said the interpretation and operation of the Constitution over the decades has given it a truly ‘swadeshi’ colour.

The ‘swadeshi’ contours of the opinion were clearly appreciated by the Centre, which spoke through Solicitor General Tushar Mehta at the Ceremonial Board hearing held on Chief Justice Gavai’s last working day. Mr Mehta talked about creating a uniquely ‘Indian’ jurisprudence.

The ‘Indianisation’ of the legal system has been a point of contention in the Supreme Court during the tenures of various Chief Justices; each added their own connotations to this idea.

Chief Justice of India (retired) PN Bhagwati had observed in 1986: “We cannot allow our judicial thinking to be constrained by reference to laws applicable in England or any other foreign country. We no longer need the crutches of a foreign legal order… We must formulate our own jurisprudence.”

Chief Justice (retired) NV Ramana had called for “Indianisation” to ensure greater access to justice for the poor as the “need of the hour”.

“When I say ‘Indianisation’, I mean the need to adapt to the practical realities of our society and localize our justice delivery systems… For example, parties struggling with a family dispute in rural areas are often made to feel out of place in court,” Justice Ramana explained.

Justice SA Bobde (later Chief Justice of India and now retired) wrote in his historic privacy judgment that “a well-developed sense of privacy is evident even in the ancient and religious texts of India.”

Court decisions regarding decriminalization of adultery and entry of women of a certain age into the Sabarimala temple are mainly Manusmriti.

But it was Supreme Court judge Justice (retired) S. Abdul Nazeer who went the extra mile in his speech on ‘Decolonization of Indian Legal System’ at the National Council meeting of Akhil Bharatiya Adhivakta Parishad in Hyderabad. He condemned India’s neglect of “legal giants of ancient India” like Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and its adherence to the colonial legal system.