A group photo of the five-judge bench comprised of Chief Justice of India Ranjan Gogoi (C) flanked by (L-R) Justice Ashok Bhushan, Justice Sharad Arvind Bobde, Justice Dhananjaya Y Chandrachud, Justice S Abdul Nazeer after delivering the verdict on Ayodhya land case, at Supreme Court in New Delhi on 9 Nov 2019 | Photo: PTI
A group photo of the five-judge bench after delivering the verdict on Ayodhya land case, at Supreme Court in New Delhi on 9 Nov 2019 | Photo: PTI
Text Size:

The Supreme Court’s Ayodhya judgment has been welcomed by a lot of people who can be described as detesters of the British Raj. And yet, oddly enough, the argument can be made that the judgment represents a vindication of the Indo-British encounter and a clear signal that we are members of what the Canadian writer Mark Steyn refers to as the ‘Anglosphere’.

Consider these seven facts:

Fact 1: The Ayodhya judgment by the former CJI Ranjan Gogoi-led Constitution bench is written in English. And by God, is it written in lucid, stately, magisterial English. The prose style is reminiscent of Laurence Sterne and Charles Lamb, both of whom would have been more than proud to own it.

Fact 2: Not satisfied with adopting a masterly English prose style, the Ayodhya judgment is freely sprinkled with Latin expressions. “Res judicata”, “Status quo”, and “Ultra vires” occur quite casually.

Fact 3: The entire Babri Masjid-Ram Janmabhoomi title dispute has been framed around the principle of the existence or the absence of “adverse possession”, and that too in a peaceful, continuous, undisputed manner. The very concept of adverse possession is uniquely ensconced only in Anglo-Saxon Common Law. It does not exist in other legal systems.

Fact 4: The manifestation of Rama, a Hindu deity, is treated as a “juristic person”. The legal idea of a deity being considered a juristic person is derived from the courts of British India and has been reaffirmed by the Privy Council in London. As recently as 1988 a British high court accepted the plaintiff’s argument that Shiva was a juristic entity in the celebrated Pathur Nagaraja case. In 1991, the Court of Appeal and the House of Lords on appeal confirmed the 1988 lower court judgement. The “owner” of the statue was Canadian—he went to the Alberta Court, which accepted the House of Lords judgement. As a result, the famous Nataraja statue (sorry, juristic entity) returned to India, where presumably the entity wished to reside.

Fact 5: The crucial decision has been made on the basis of “preponderance of probability”, a central idea in all civil disputes in Common Law jurisprudence. (Criminal cases require to be decided beyond “all reasonable doubt”).

Fact 6: The five Supreme Court judges have been very courteous in their praise of the lawyers who appeared before them. They have been faithful to the traditions of the British Raj courts. We have all heard of how courteous British judges used to be to the famous Sir C.P. Ramaswami Iyer, when he appeared before them.

Fact 7: The judgment ends with an application of the principle of “equity”, another unique Common Law idea, which does not occur in the Code Napoleon and Continental Law (or Civil Law). “Equity” has been a recurring phrase in English courts for some 800 years. Barrister Mohandas Karamchand Gandhi was very fond of the principle of equity. He loved the book Snell’s Equity and once compared its content to that of the Bhagavad Gita. Incidentally, among written constitutions, it is only the Indian one that confers extraordinary powers on the Supreme Court, which it can exercise in the interests of equity. Clearly, barrister B.R. Ambedkar understood its importance.


Also read: 48 academicians and activists will move Supreme Court against Ayodhya verdict


The Karmic connection

At a time when it has become fashionable to mercilessly criticise the British Raj, it is worth revisiting matters and spending some time on thinking about its connection, including the fact that very soon after the conquest of Awadh by the British, a variety of mahants and swamis had taken their chances with the new British courts in trying to occupy and pray at the disputed site in Ayodhya. Clearly, they thought, or at least they hoped, that their plaints would be heard sympathetically by the judges of the Raj. And they might not have been wrong.

While Thomas Babington Macaulay was an insufferable prig, there were other British administrators in India, like Mountstuart Elphinstone in Bombay and Thomas Munro in Madras, who were wise pro-consuls in the best sense of the term. Munro certainly seems to have had a karmic connection with Rama, the deity. He reportedly had visions of the 17th-century Hindu seer, Raghavendra Swami, in the village of Mantralyam and the mysterious Hanuman’s arch at the village of Gandi in present-day Andhra Pradesh. This arch was/is visible only to those who have Rama’s favour and Raghavendra is one of Rama’s names. Even the most diehard Macaulay-haters will perhaps be willing to admit that Munro’s spirit may have been guiding India’s Supreme Court even as mere humans – the five judges – wrote a judgment that involved the juristic entity Rama.

The connection may have been karmic or otherwise. Clearly, there were many things about the British imperial engagement in India that have left bitter memories. But Common Law jurisprudence and an unpredictable, fearless judiciary with a penchant for classy English prose and quaint Latin expressions has to be among the better ones. It’s been 72 years now. Perhaps it’s time to take a deep breath and acknowledge this.

The author is an entrepreneur and writer. Views are personal.

ThePrint is now on Telegram. For the best reports & opinion on politics, governance and more, subscribe to ThePrint on Telegram.

Subscribe to our YouTube channel.

6 Comments Share Your Views

6 COMMENTS

  1. Yes, we should read a judgement and not expect legal terms.
    Probably should not expect doctors to also not use medical terms in their reports as well.

    If you bothered to research the origins of adverse possession, you might have known it
    was originally used during the time of Hammurabi. The principal behind it is explained in Ravinder Kaur Grewal vs Manjit Kaur, again a Supreme Court judgment. The English is a bit more simple and you might enjoy it.

  2. The following sample is an extract from a judgement by a session’s judgein a case of child sexual abuse:
    Quote.
    Besides all these, how it seems
    to be unnatural that the thing for
    concealing to which the accused
    was hiding himself here and
    there and was frightened in
    coming home, on call only he
    came to the house, on coming
    not before anybody else, except
    before those persons who were
    bent upon to punish him
    immediately and further were
    furious on him and tried to
    assault him, and who could
    have sent him in jail for the
    statement given by him against
    himself, has confessed before
    them his offence willingly. In the
    back ground of this, the accused
    who is not only literate but is
    doctor and is living in the
    present atmosphere, and
    confession of such offence by
    him in this manner seems to be
    unnatural in itself…More
    unnatural to these all is the
    confession of the offence before
    his father which he made before
    his father …in presence of five
    persons stated above. The family of the accused is also the
    family of the learned persons. On
    account of the last night’s
    incident they would have not
    become purturbed rather they
    had so much time they would
    have come under the influence
    of the shock as of the family of
    Madan Gopal Kakkar and would
    have thought of the saving
    themselves, and out of them
    atleast one would have been who
    would have not admitted the
    offence again. In this way the
    story of confession of the
    offence by the prosecution by
    the family of Kakkar and Bhasin
    family is wholly unnatural,
    fabricated, and product of legal
    advice. This could not at all be
    trusted.

    Many of our court judgements
    similarly sound like total gibberish. – Madhu Kishwar, The Domiance of Angreziyat.
    Unquote.

  3. JR Rao Sir – this is just your second article in almost 6 months on this website and I have enjoyed reading both. You should write more often.

  4. Nice lucid article. Compact yet quite enlightening.

    (And yet, author should try and read the impenetrable prose of former CJI Dipak Misra…..and terms like “a catena of judgments” used by our higher courts anfd lawyers alike. I doubt any legal person in Britain— or Canada, or the USA — would understand what is meant by “catena”)

LEAVE A REPLY

Please enter your comment!
Please enter your name here