The laws on remission in India, including Article 72 of the Constitution that provides for the President granting pardon, and Section 432 of the Criminal Procedure Code (CrPC) that pertains to remission or suspension of sentence of convicts, all have their "basis in the Valmiki Ramayana," Madras High Court judge Justice GR Swaminathan said Wednesday.
Justice Swaminathan was speaking at the 16th National Conference of Akhil Bharatiya Adhivaktha Parishad at Kurukshetra University, Haryana on the subject, '75 years of Resurgent Bharat: Time for Bhartiya Jurisprudence.'
Recalling an incident from 1994, when he was a speaker at an Adhivaktha Parishad meet that year, Justice Swaminathan said that it was at a time when militancy in Kashmir was at its peak. A few days before the meet, some militants had been holed up inside a mosque and had threatened the security forces saying they will blow up the mosque if the forces try to enter, he said.
"Such is their respect for their own religion. Anyway, the standoff went on for quite sometime. It was Ramzan and some court, I forget which one, ordered that the militants be fed some Biryani," Justice Swaminathan said.
He said that the meet was held in this background and when his turn came to speak, he said he had read Salmond on jurisprudence and Dias on jurisprudence, but he had never before come across "Biryani jurisprudence."
"But in the 28 years since, there has been a paradigm shift and I am fortunate to speak today on Bharatiya jurisprudence," Justice Swaminathan said.
He also spoke about the recent release of the six life term convicts in the Rajiv Gandhi assassination case by the Supreme Court.
"They were first sentenced to death. It was commuted to life term and then after 30 years, they were allowed to go scot free. And on top of that, one of the convicts (Periravalan) was invited as a star speaker at a conference in Chennai. So many people including myself felt very disturbed at this," he said.
He went on to say that around this time he was reminded of a shloka from the Valmiki Ramayana, where Sita tells Hanuman that no human is above error and, therefore, one must give up the idea of retaliation and instead pardon even one's own tormentors.
"When I read this beautiful shloka, I was able to come to terms with the remission granted to the six convicts. Friends, I realised all of this - Article 72, 432 CrPC, all have their basis in the Valmiki Ramayana," the judge said.
Justice Swaminathan also recalled a statement made by Supreme Court judge, Justice S Abdul Nazeer last year in which he had spoken about the need to Indianise the Indian Judiciary.
The Madras High Court judge said that while Justice Nazeer's statement had drawn much criticism, he was a firm supporter of such Indianisation.
Justice Swaminathan referred to an article criticising Justice Nazeer's statement that was published under the title, 'Objection your honour.'
"We have gathered here to bang the gavel hard and declare, 'objection overruled'," Justice Swaminathan said.
He urged all members of the audience to re-read the text of Justice Nazeer's statement and to translate it to their respective mother tongues and distribute such pamphlets among the public.
Justice Swaminathan went on to say that while the current legal system has given much to the country, there was no reason to not improvise the same.
"What brought you here, will not take you there," Justice Swaminathan said.
He added though that what is required is not a blind application of ancient principles, but only what is in tune with current needs and times.
The judge also spoke about recent tensions between the Supreme Court collegium and the Union Law Minister Kiren Rijiju.
He said that every time a new Chief Justice is appointed to the Madras High Court, the Bar Association in its welcome address narrates the Tamil epic tale of Silappatikaram wherein a king dies of cardiac arrest after realising that he had failed to implement due process of law and had erroneously executed a man accused of being a thief.
"As a judge, I have to listen to it again and again. Every time I hear it, I think to myself, thank God judicial infalliablity is no longer a condition of service. Because then, the Collegium would have had no other job but to keep recommending names one after another for appointment. It would have been a 24x7 job. But then, I am making two assumptions here. One, that the members of the Collegium are immortal, and the other that the law minister Kiren Rijiju will not play hardball with the Collegium," the judge said.
He ended his speech by saying that while the country's current legal system, including the Constitution is an amalgam of features of several Constitutions and legal principles of western nations, our genius was in "making the Bharatiya music flow out of western instruments."