Dear Law Students,
On Mahatma Gandhi’s birth anniversary, I think it would be a good idea to focus on one aspect of Gandhi’s personality: his originality. Gandhi was a political leader, a statesman, a lawyer, a deeply religious man, and at the same time, an original thinker. Although Satyagraha is a fashionable word today, it was an entirely new concept introduced by Gandhi to the political vocabulary. Further, he challenged not just the legal and political order of the day but our ways of living, based on his ideas of self control. Swaraj for him was control over one’s desires and attitudes, not merely political independence.
In the years since his death, we bemoan many things he might have been unhappy about –corruption, materialism, violence, and hedonism. But I believe he would be a bit worried about our lack of original thinking as well, especially in our law schools. Part of the reason is that we adopted the Westminster model of government, and thus became wedded to a certain system of government and style of functioning that we now find not working for us. Remember that one of the members of the constituent assembly said in frustration, “We wanted the music of the Veena or the sitar, but we have the music of an English band.”
Is originality a virtue at all? Why can’t we follow established modes of thought rather than striking off on our own? Gandhi’s originality was of a special, almost paradoxical variety. His thoughts were rooted in Indian culture and religion, while at the same time reinterpreting tradition. He claimed that his revolutionary ideas were based on a study of the Bhagavad Gita, Ramayana, Mahabharata and the Upanishads. His thoughts on self-control came from ancient Indian asceticism. His strictures against untouchability were not based on western secular notions of equality, of which he remained mostly innocent, but religious notions of community and fraternity.
I would like you to be fiercely independent in the way Gandhi was, and reinterpret your political and legal legacies in their Indian contexts. I was struck by the political system we have inherited when tributes poured in after the passing away of Ruth Ginsburg. In one of her articles, Ginsburg quotes Alexander Halmilton’s famous remark that the judiciary is the least dangerous institution. Hamilton was making the point that the judiciary depends on the other two branches of the government for its financial sustenance and the enforcement of its judgements. This is exactly the same situation in India. Can we imagine a different kind of judiciary in India, one that can be more muscular than its western counterparts? I believe much work needs to be done in Indian constitutional studies that goes beyond the paradigms bequeathed to us by the West.
Even in the field of legal theory, Gandhi provided a glimpse of an original approach to the nature of the law. In October 1920, Gandhi wrote about his correspondence with Bhashyam Iyyengar. Iyyengar, a member of the Mysore Legislative Assembly, had written in trenchant terms to Gandhi about reform proposals that were intended to radically transform the Hindu Personal Law. Traditional Hindu Law, derived from Smritis and Shastras, had never fit in well with the legal system of the colonial British period. The customary origins of Hindu Law were qualitatively different from the statutory legislation that the colonial administration was used to and indeed, for this reason among others, the British tended to leave Hindu Law alone, and did not undertake to make any changes to it through their statutory instruments.
Mr. Iyyengar had none of the inhibition of the colonial administrators when it came to reforming religious law. In his letter to Gandhi, he mentioned several anomalous tendencies in Hindu law, including provisions relating to inheritance, widow remarriage and inter-caste marriages. Perhaps Iyyengar’s motive was to co-opt Gandhi into the movement to reform traditional Hindu law through statutory mechanisms, a move no doubt controversial, not only because of its modernist aspirations but also because the colonial administration had abjured any such approaches towards native law.
Gandhi welcomed the move to reform Hindu law but true to form, immediately grasped the fundamental problem with any such measures. If the rule regulating inheritance is divine and timeless in origin, how was it possible for a human secular agency to change the law? Gandhi made it clear that the Smritis could be interpreted, not remade, by the authority to result in requirements which hitherto they were not known to result in. Gandhi lamented the fact that instead of recognizing this feature of the Smritis, people usually followed the law to the extent they desired and ignored the part they did not like. Gandhi was making an important and subtle point about the nature of law, akin to Ronald Dworkin’s point that the law contains principles, not rules. Legal principles can be interpreted capaciously, sometimes in ways that no one had thought of before.
I would like all of you to adopt a critical approach towards the nature of the law, not because it is de rigueur, but because it will give you a chance to challenge orthodoxy. You may not want to inherit Gandhi’s ascetism, but perhaps I can interest you in adopting his iconoclasm.