2ndlook

Indic Justice – rediscover or reinvent?

More like Amartya Sen has foot in mouth disease?

More like Amartya Sen has foot in mouth disease?

Indic Justice …

The on-going saga of the Ambani brothers’ dispute, brings home how deeply and completely Indic norms of justice and fair play have been lost. The Ambani brothers have approached the Prime Minister and are pressing their cases in the Supreme Court for justice. Such a form of dispute redressal is alien and remote to Indic thought.

The other apparently unrelated ‘event’ is the much promoted and publicised book, The Idea of Justice by Amartya Sen, has no clue about justice (at least on Indic thoughts on justice). Apart from a few token mentions about Ashoka Maurya and Akbar Moghul, he has very little to say about Indic thought on justice.

But he speaks very volubly on Western thinkers and thought on justice.

The wise king delivers justice

To bring out the contrast, one has only to read the Biblical story of King Solomon’s justice (where two prostitutes claimed the surviving baby as theirs). The point worth noting is that this paradigm of justice centralizes solutions and concentrates power in the hands of some central authorities.

So, whether it King Solomon or Caliph Haroun Al Rashid (the King in disguise), or the Turkish Çapanoglu Ahmet Pasha (of the bell of justice fame which even a donkey could ring to summon the king for justice) – the model was the all-knowing King. Variations of the Donkey /Horse and the Bell of Justice story is localized and retold in various cultures.

King Solomons Justice
King Solomon’s Justice

Going back earlier, the Desert Bloc model of seeking justice was captured in the story of Tehuti-nekht (the oppressive overseer); a sekhti’ (the poor salt-trader) the ‘clever’ Meruitensa (The Grand Vizier /Supreme Judge) and The Wise Pharoah Nebkanra.

The Duke of Venice perpetuates the myth of justice in Shakespeare’s Merchant of Venice. The more than 120 Doges of Venice who ruled Venice for nearly a 1000 years, preserved the myth of justice during the Middle Ages.

In modern times, as republican democracy made Emperors and Kings redundant, the Smart Lawyer took over the justice function, in the garb of legal thrillers.

Perry Mason replaced The Wise Emperor as the fount of justice. John Grisham keeps company with many writers about legal-eagles, who go out to save the innocent from the hangman- and send the guilty into the dock. Like John Buchan, GK Chesterton, Wilkie Collins, et al.

Hollywood used the legal thriller genre with assembly line regularity – with successes galore, like Billy Wilder’s Witness for the Prosecution (1957), with earlier instances like Charles Laughton and Marlene Dietrich, or the screen adaptation of Harper Lee’s To Kill a Mockingbird (1962), or the more modern Erin Brockovich (2000)and My Cousin Vinny (1992).

All quiet on the Indian front …

In more than 1000 Indic books, that record more than 10,000 years of history, there is no instance of any dispute reaching an Indic King.

The longest ancient epic in the world, The Mahabharata has no incident where a private dispute reached Yudhisthir (though a mongoose could lecture the King about sacrifices and yagnas). There was never any case of private dispute, recorded in the Ramayana, that reached Ramachandra (though a dhobi could ‘inform’ the king on bazaar talk about the Queen Sita). Even a poor Brahman, Kautsa, could reach King Raghu for help in the disbursal of guru-dakshina गुरु-दक्षिणा.

Kannagi and Devanthi - The Dream, from the epic Silappadhikaram

Kannagi and Devanthi - The Dream, from the epic Silappadhikaram

In yet another instance, rulers were warned against disproportionate punishment – through the Mandavya incident. Mandavya, was punished by Yama (the God of Death) for his ‘crimes’ as a child, of hurting insects. Through a chain events, Mandavya ended up, impaled on a trident /stake.  After best efforts to remove the offending weapon, a part remains inside  Mandavya’s body.

With a trident through his body, Mandavya confronted Yama. Mandavya, the sage, berates Yama for ‘criminalising’ children. Codifying the principle of juvenile justice, Mandavya exhorts “that no action committed by a human being till he is fourteen years of age shall be regarded as a sin  which it would thereafter.” In turn, Mandavya curses Yama to be born as a shudra child – to learn about the ‘reality’ of life. Yama, born to shudra woman, became Vidura, Dhritarashtra’s court.

In Buddha’s childhood, an injured swan becomes a point of legal dispute with his cousin, Devadatta. The injured swan, Devadatta’s hunting /archery practice target, was claimed by Siddhartha. Some minister’s preferred Prince Siddhartha’s claim, due to his position. Since the hunt was not for food, but for pleasure, Devadutta’s claim over the swan was seen as weak. Finally the claim of the saviour was seen as superior to the claim of the hunter /captor. Replace the swan, with a slave, and the legal principle for any dispute between a slave-owner versus slave-liberator, is established. The same principle is evidenced in Artha-shastra in many shlokas.

The Tamil classic, Silappadikaram, is ancient Tamil drama about the perils of royal justice.  Silappadhikaram is, a literary critic informs us is “a saga of the of the cult of the Goddess Pattini … the first ripe fruit of the Aryan-Dravidian synthesis in Tamil Nadu.” Who is Goddess Pattini? Once a widely worshipped Goddess in South India, now limited to modern Sri Lanka “Pattini was an angry deity, whose anger was directed at evil people and she is also associated with rational justice.” The destruction of the city by Pattini, the Goddess of ‘rational’ justice, is a warning against vengeful royal ‘justice’ – and instead move towards ameliorative Indic justice system.

Elango Adigal warns Indic kings from taking over and  interfering with dispute resolution mechanisms. The Pandyan King, Neduncheziyan, in  Silappadikaram, comes to grief, after royal intervention goes horribly wrong, resulting in miscarriage of justice.

It gets worse! No prisons …

Modern econometric modelling shows that for much of the last 1000 years, India has been a significant economic power – till the 1900. China and India, this analysis estimates, for the last 1000 years, accounted for 50% of the world economy. Statistical analyses showed India with a world trade share of 25% for much of the 500 years during 1400-1900. The interesting (historical) aspect of the criminal management story is the absence of any surviving mass jails in India prior to colonial India. Just how did pre-colonial India, one of the largest (and most prosperous) populations of the world, deal with crime and criminals?

Without prisons!

But then crime rate in India must be really high …

Cut to modern India. With such an inheritance, India has the lowest prison population in the world. How can India have such a low prison population, with a poor police-to-population ratio and a crime rate which is not above the average – in spite of a large civilian gun population.

All the 5 indices (below) create a bias for a lawless Indian society and rampant crime. With these five indices, namely: –

  1. Police to population ratio (‘increase police force’)
  2. Prison population (‘put more criminals behind bars’)
  3. Capital punishment (‘kill enough criminals to instill fear’)
  4. Poverty (‘it is poverty which the root of all crime’)
  5. Gun ownership (‘more guns means more crime’)

against a stable social system, how does current day India manage low-to-average crime rates. More than 2000 years ago, Megasthenes a Greek traveller to India wrote,

Theft is of very rare occurrence. Megasthenes says that those who were in the camp of Sandrakottos, wherein lay 400,000 men, found that the thefts reported on any one day did not exceed the value of two hundred drachmae, and this among a people who have no written laws

Historically, trade in India is governed by शुभ लाभ ‘shubh labh’ – and hence Indians have not been major players in drugs proliferation (unlike Japan, the West in which traded Opium in Korea and China) or in slave trade.

In modern times, India is not a big player in spamming or in software virusthough a power in computing industry. In August 2008, a hoax story alleged that an Indian hacker, had broken into a credit card database, and sold it to the European underworld. Some ‘experts’ feared that this would spark of a crime wave across Europe.

The Indic model of justice, crime and law

Evidence of a different Indic system goes far back in history. To Lipit Ishtar, Hittite laws, Hammurabi et al. At least as far back as 4000 years back in history. Indian kings did not deliver justice. It was done at the local level by panchayats पंचायत. Indian justice systems did not rely on imprisonment or executions or the police to control crime!

The answer – the world’s most stable marriage system and the extended family-social structures took care of the wayward.

Still from Breaker Morant - Edward Woodward, 3rd from left, portrayed Harry 'Breaker' Morant

Still from Breaker Morant - Edward Woodward, 3rd from left, portrayed Harry 'Breaker' Morant

A recent Hollywood film on the Desert Bloc system of justice was the schizophrenic Breaker Morant – by Bruce Beresford. In the closing lines of Breaker Morant, when asked about his religion, Harry ‘Breaker’ Morant declares that he is a pagan.

When the execution detail comes to get Morant and Handcock, the military chaplain asks their religious affiliation. “Pagan.” replies Morant. “What’s a pagan?” inquires Handcock. Morant replies, “Well, it’s somebody who doesn’t believe there’s a divine being dispensing justice to mankind.” Handcock nods and says to the chaplain, “I’m a pagan too.” (extract from Wikipedia; accessed on 25th January, 2010).

I have always wondered how much the writer knew – and understood the import of that statement.

Crumbling edifice

In India, under the onslaught of the Desert Bloc, Akbar-Birbal stories, Tenali Ram-Krishna Devaraya were used to create expectations of a Wise King. From then on, the Indic system of justice crumbled at a faster pace.

Is it that Indians were ‘saints’ and did not have private disputes? Were they so civilized that they could solve all disputes by talking to each other? Is it that Indian kings were not bothered about delivery of justice!

By Richard Brust
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4000 Years – Hittites & Gandhiji

Posted in British Raj, Desert Bloc, History, India by Anuraag Sanghi on January 13, 2008

Separated by 4000 years, what could possibly be common between Gandhiji (2000 years after Christ) and Hittites (2000 years before Christ) – the pre-Greek Indians in the Middle East? Both, the Hittites and Gandhiji, rejected Hammurabi’s “eye-for-an-eye” legal thinking and system – 4000 years apart.

Who Was Hammurabi

Western historians glorified Hammurabi as the world’s first law giver – and Occidental-Levantine (including the Shariat) laws are based on Hammurabi’s legal code of “an eye for an eye and tooth for a tooth”. Hammurabi’s laws and edicts were retributive, vengeful and punishment oriented. The focus of Hammurabi’s legal system is to give a ‘fitting’ counter punishment for a defined offense. Roman law calls this lex talionis and the Old Testament advocates an eye for an eye“, (Hebrew: עין תחת עין‎) is a quotation from Exodus 21:23–27.

Results & ConsequencesSiege Mentality

These laws created a system of revenge, fueds and vendettas. The result – a fractured Europe, a rampant history of genocide, a fueding Middle East.

The largest prison population in the world is USA, currently at 2 million. The US has more people in prison than the totalitarian regimes of Russia or China. It also has one of the highest crime rates in the world is also USA. Is there a causal link between the Hammurabic legal systems and the crime it seems to engender.

Massacre & Slavery

This is also the same system that has created, supported, protected the premier slave systems of the world. It is also the same system with a singular record for blood baths and massacres in the history of mankind. This is region and system that gave rise to the three slave religions, Judaism, Christianity and Islam.

The three ‘desert religions’, gained their first converts from slaves, but continued with slavery till the 20th century. The 3 ‘desert religions’ instead of reforming slave societies, just enabled the transfer of slave titles. Freedom meant old slaves became the new slave masters.

Gandhiji’s famous position was “an eye for an eye makes the whole world blind” when asked about the Hammurabi’s “eye for an eye” kind of justice.

The Hittite Legal System

The alternate system in that era, 4000 years ago, was the Hittite legal system. We get an insight into the Hittite legal system from (more than) 10,000 clay seals and tablets at Boghaz-koi, unearthed in 1907-08 by Makridi Bey and Hugo Winckler and deciphered by Bedrich Hrozny during 1910-1921. These tablets and seals reveal the legal minds of the Hittites. Hittite law, different from Hammurabi laws, was based on amelioration of the effect of crime and driven less by fear of death and punishment.

The Hittites, Mittanis and Elamites (using Indo-Dravidian languages) were Indo Aryans that dominated Asia from Indian borders to European borders till 500 BC. Kassite, the other major ruling clan in Levant’s geography (apart from the Egyptians) heavily adopted Indo Aryan cultural motifs.

Hammurabi’s main rival in the Middle East arena was Rama-Sin of Larsa (ruler of Larsa) who ruled for 60 years. Raim Sin (1753?-1693? BC) of Larsa, in Sumer (modern Iraq), ruled over Sumer, Elam – present-day Iraq, Iran and Afghanistan. Sin is the Assyrian moon goddess (in modern Indian languages, Ram-Sin will be translated to Ramachandra). Ram-Sin assumed the title of ‘king of all lands’, blessed by Goddess ‘Nin Makh’ at ‘Opis’, his second capital in Babylonia. Ram-Sin fought for a long time an inconclusive war with Hammurabi (speculatively identified as ‘Ravana’ of the Indus seals). Ram-Sin, king of Babylonia possibly, was finally able to defeat Hammurabi in the joint action with the chief of Subartu, Hurrian and Mitanni kings. Hammurabi was killed in the fight, speculatively suggested by one of the Indus seals.

Gandhiji – And Hittites?

4000 years later, Gandhiji, described the western civilisation as a “good idea“. Gandhiji’s knowledge of Hittite legal thought would have been (probably close to) zero as the decipherment of Boghazkoi and other Hittite texts was ongoing and incomplete. Elaborate analysis and the commentary on Hittites and Boghazkoi came after Gandhiji’s death.

The Hittite legal revolution 4000 years ago plays out even today.

Go West, young man?

But, modern Indian law makers and jurists look to the West for getting legal ideas. Under the garb of modernisation, Indian law is becoming negative. Apart from not taking up the challenge of repealing colonial laws, the Indian Government has accepted the colonial legal system (nearly) in toto.

The Odious Section 498

Possibly the best example of post-colonial, western-patterned law is the Section 498. A retributive, revengeful law (patterned on western legal models) is now undermining the very structure of Indian society – marriage. Section 498 has has taken away marriages from the social domain into the legal sphere. From being contributory, accommodative, religious and life long, Indian marriage system is becoming extractive, adversarial, contractual, legal and short term. Some in the West do see the value in the Indian system – but India seems to think that West is a way out!

On September 5th, 2008, eight months after this post, the Times Of India reported that the Indian Government may review the section 498 law. The report talked about how

“For long, voices raised against the anti-dowry act were dismissed as those belonging to men desperately trying to retain their dominance over women. But now, an increasing number of women complaining against misuse of the act has forced the women and child development (WCD) ministry to initiate a review of the controversial legislation.

The government’s turnaround comes after an increasing number of complaints came from women themselves — mothers-in-law and sisters-in-law who ironically have fallen victim to the misuse of the two laws.

The statistics are telling. Raksha, an NGO working on marital harmony and child welfare, has analysed figures by the National Crime Records Bureau to deduce that 1.2 lakh women have been falsely implicated under 498A.

‘‘Every 21 minutes, an innocent woman is being arrested. While the number of arrests under 498A are increasing every year, what is not being considered is that the conviction rate in these cases is barely 2%,’’ Anupama Singh, Raksha spokesperson said.

The Indian Legal Alternative

Indian law can take inspiration from the Hittites of 4000 years and offer an alternate model to the world. A Gandhian model. The rejection of Hammurabi’s legal system by the Hittites and Gandhiji, separated by 4000 years, is not a co-incidence. Gandhiji’s response, separated by 4000 years from the Hittites, demonstrate the Indian continuity in thought and action.

The Khilafat Movement

Interestingly, also 4000 years later, when rulers of (the modern day Hittite kingdom in) Turkey, the Ottoman Turks, were being unseated from their thrones, by the British after WW1, it was Gandhiji who objected to the end of the Caliphate- and started the Khilafat Movement. India, itself a colony, took lead on an international issue and made its presence felt.

This break up of the Ottoman rule after WW1, and the installation of puppet regimes, regressed Islamic societies by centuries – at a great cost of millions of lives.

PS – If all else fails, there is the path of political assassination. A few days ago, from Washington, USA, someone Googled to ask “why britishers didn’t kill gandhi“. Perhaps, that was one moment in history, when the political leaders of the Anglo Saxon Bloc were momentarily humanised.
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