HUMANISM IS THE HIGHEST LAW WHICH ENLIVENS THE PRINTED LEGISLATIVE TEXT WITH THE LIFE BREATH OF CIVILIZED VALUES* THE JUDGE WHO FORGETS THIS RULE OF LAW ANY DAY REGRETS HIS VERDICT SOME DAY**

   By Mushaffey Ahmad

H.J.S. (U.P.)

 ‘ISM’ denotes practice ad-nauseam. Of the divers isms the most cherishable is humanism, the others serve as means fair or foul to that end. Man is beset with isms and becomes intractable to systems because of them. He is in or out of his humour. It is rarely that he is himself and without ‘ism’ .

H. W. Fowler* seems to take humanism for the scope of studies to the humanists who rationalized the human conduct of yore, or a Religion of Humanity. Our forensic maven takes humanism for all that collectively makes a creature up a ‘happy and dignified’ Man. We sometimes look up to ‘uns’ (love) for Insaaniyat, salt to preserve him from corruption, or Rahim's Paani to deliver man. Of all the creatures man alone may react differently in similar circumstances, that is, he remains too kaleidoscopic in conduct and protean in nature. His power to think and devise is unique and has been enigmatic to both the legislators and the jurists. Laws are based on inductions and deductions from human activities. When Human nature is so complex and idiosyncrasy varies from man to man, the legislators and jurists gape for what Justice J.S. Verma proposes in his lecture on ‘New Dimension of Justice.’

‘Law as it is may fall short of law as it ought to be for doing complete justice in a cause, the gap between the two may be described as the field covered by morality.’

……….1997, 3 S.C.C (J) 3

Law strives to be what it ought to be by developing new dimensions to Jurisprudence. Hon'ble Justice Verma continues:

‘There is no doubt that the development of the law is influenced by law is influenced by the principles of equity natural justice as effective agencies of growth. The ideal state is when the rules of law satisfy the requirement of justice and the gap between the two is bridged. It is the attempt to bridge the gap which occasions the development of New Jurisprudence.’

(Ibid)

What is morality and what new dimensions to Jurisprudence need be added, answers to these questions we shall quest for here-in-after. With the interminable scope of variations in the human activities, laws which have for their object streamlining the normal and prohibiting and sometimes punishing the abnormal especially lag far behind.

Man apes his parents, mates, masters, teachers, colleagues, etc., and takes upon himself what he takes to. The society at large has projected innumerable and indelible lessons to man. Principles and practices develop in the society and depend for the quality upon the way of living it has adopted.

Modern India has taken much after her conspicuous heroes. I mean saintly Mr. M.K. Gandhi and impressive Mr. Jawahar Lal Nehru. One stood for culture hemmed-up with ‘Mariyadas’, the other for modernization dominated by development. The one inculcated subjectivity, the other objectivity; though both struggled for independence and progress. Mr. Nehru subscribed to adaptability according to the circumstances as the art of life, Gandhiji stuck to Satya and Ahimsa as his modus-operandi. The majority drank deeply adaptability to circumstances and bucked at ‘Mariyadas’ of Indian Culture. Adaptability but to an extent, within limits, or in a proper measure would have reconciled the two heroes. Infraction of law and consequent inhumanism may be traced in quite some measure to this limitless adaptability.

Brothers of the west have been at best in their ingenious faculty. Their claim that Civil Laws of England are the brightest jewels worth having is literally correct. Application of those laws in India as elsewhere, however, shows up futility of their claim. Their efficacy and efficiency may be assayed in the crucible of history. The milieu miasmic or congenial that attended the advent of the British Laws to India has a sordid story to tell. Making a retrospection we find that when State of Satara was annexed by the English, Rango Bapoji went to England to lay the grievances of Satara before the Home Authorities, who found the claim unsustainable and turned down the entreaty. Queen Banka of Nagpur tried to get justice from England, fee’d expensive barristers with lacs of rupees but in vain. Nana Sahab Peshwa of Bithor sent Azim Ullah his advisor to England to plead his case; Azim Ullah returned disappointed but fully convinced that justice could rather be wrested than be entreated and, therefore, advised Nana Sahab and the Badshah Bahadur Shah Zafar to wield their swords for what they were entitled to.

The British ingenuity badly replaced humanism, One would wonder if the laws given by them could be a means to humanism. A page of history close upon the advent of the Laws in India may disenchant many jurists who trust justice can be attained only through the laws inherited. Sri V.D. Savarkar writes in the ‘Indian War of Independence of 1857’ (Pages 189-191).

‘After the Benaras rising, General Neill organized detachment of the English and (some persons of a community that sided with the English) to keep order in the neighbouring villages. These bands used to enter villages occupied by defenceless peasants. Anybody whom they met was either cut down or hanged. The supply of those to be hanged was so great that one scaffold was soon found insufficient, even though worked day and night. Therefore, a long line of permanent scaffolds was erected. Though, on this long range, people were half killed and thrown away, still there was a crowd of waiting candidates. The English Officers gave-up as hopeless the silly idea of cutting down of trees and erecting  scaffolds; so, thenceforth the trees themselves turned into scaffolds. But if only one man was to be hanged on each tree what has God given so many branches to a tree for? So natives were left hanging on every branch with their necks tightly roped to them. This military-duty and this……….. mission went on incessantly night and day. No wonder the brave English got tired of it. So the necessary seriousness in this religious and noble-duty was mixed with a serious humour for the sake of amusement. The rude manner of catching hold of peasants and hanging them on trees was altered to suit the taste of art. They were first made to mount on elephants, then the elephants were taken near a high branch, and after the necks were tied tightly to it, the elephants would be moved away, still when the elephants were gone, the countless unshapely corpses used to hang on the branches and the English passers-by were bored with unchanging monotony of the scene. Therefore, when the natives were hanged, instead of being hanged straight they were made into all sorts of figures. Some were killed in the shape of the English figure ‘8’ and some in the shape of ‘9’.’

‘But in spite of these various efforts in different directions there were still hundreds of thousands of ‘Black’ men living. Now to hang all these would require an amount of rope that could not easily be had. The ‘civilized’ nation of England was landed in this unthought-of difficulty. By the grace of their God Himself they hit upon a new plan, and the first experiment was so successful that, thenceforth, hanging was abandoned for the new and scientific method. Village after village could thus be razed to the ground: After setting villages on fire and keeping the guns in position to overawe them, how long will it take to burn thousands of natives? This setting fire to villages on all sides and burning the inhabitants, was so amusing to many Englishmen that they sent letters to England giving a humorous description of these scenes. The fires were so quickly and skillfully lighted that no villager had any chance of escape at all. Poor peasants learned Brahmins, harmless Musalmans, school children, women with infants in their arms, young girls, old men, blind and lame, all were burnt in the mass of flames. Mothers with suckling babes also succumbed to these fires: old men and women, and those unable to move away even a step from the fire, were burnt in their beds. And if a solitary man were to escape the fire, what then? One Englishman says in his letter, “We set fire to a village which was full of them. We surrounded them, and when they came rushing out of the flames, we shot them.”’ (Charles Ball's, Indian Mutiny, Vol. l, Page 243-244 quoted)

And when the war of independence was near a close the British offered general pardon and husk of law but thousands of Rana Prataps sensing inhuman ism behind the tantalizing rules preferred starvation and risk to life at the claws of fierce beasts in the dense forest of Nepal.

To probe a little further into history of British law and its enforcement in India, we turn to momentous proclamation of Nov. 1858, by the queen of England.

‘We hereby announce to the native princes of India that all treaties and engagements made with them by or under the authority of the Hon'b1e East India Company are by us accepted and will be scrupulously maintained, …… we desire no extension of our present territorial possessions…………… We shall respect the rights, dignity and honour of native princes as our own and we desire that they, as well as our own subjects, should enjoy that prosperity and that sole-advancement which can only be secured by mutual peace and good Government.’

‘Our clemency will be extended to all offenders save and except those who have been and shall be connected of having directly taken part in the murder of British subjects.’          

‘To all others in arms against the Government, we hereby promise unconditional pardon, amnesty and oblivion of all offences against ourselves our crown and dignity, on their return to their houses and peaceful pursuits.’ (Sri V.D. Savarkar’s ‘Indian War of Independence of 1857’, Pages 514-515).

This magna-carta was published to extinguish the revolution. The Begum of Oudh did not care even to glance at it. She saw through the artifice and published the following counter- proclamation:

‘In the proclamation, it is written that all the contracts and engagements entered into by the Company will be accepted by the Queen. Let the people carefully observe this artifice. The Company has seized on the whole of Hindustan and if this arrangement be accepted, what is there new in it? The Company professed to treat the Chief of Bharatpur as a son and then took his territory. The Chief of Lahore was carried off to London never to return again. The Nawab Shamsuddin Khan, on the one hand, they Salaamed to him. The Peshwas they expelled from Poona and Satara and imprisoned for life in Bithor. The Raja of Benaras they imprisoned in Agra, They have left no names and traces of the Chief of Bihar, Orissa and Bengal. Our ancient possessions they took from us on pretence of distributing pay and in the 7th Article of the treaty, they wrote on oath that they would take no more from us. If then the arrangements made by the company are to be accepted what is the difference between the former and the present state of things? These are old affairs, but even recently in defiance of oaths defiance of oaths and treaties and notwithstanding that they owed us millions of rupees without reason and on pretence of misconduct and discontent of our people, they took our country and property worth millions of rupees. If our people were discontented with our Royal predecessor Wajid Ali Shah, how comes it then that they are content with us? And no ruler ever experienced such loyalty and devotion of life and goods as we have. What then is wanting that they do not restore to us our country? Further it is written, in the proclamation that they want no increase of their territory and yet they cannot refrain from annexation, if the queen has assumed the Government, why does she not restore our country to us when the people have unmistakably shown their wish to this effect?

‘It is written in the proclamation that they who have harboured the rebels or who caused men to rebel shall have their lives, but that punishment shall be awarded after deliberation to them, that murderers and abettors of murders shall have no mercy shown to them and all the rest shall be forgiven. Now even a silly person will see that, under this proclamation, no one, be he guilty or innocent, can escape. Everything is written and yet nothing is written. But one thing they have clearly said that is that they shall let off no one who is implicated; and so in whatever village or province our army was halted the inhabitants of that place cannot escape. Deeply, are we concerned for the condition of our beloved people on reading this proclamation which palpably teems with enmity?’

(Ibid, Page 515-517)

Thus responds the Begum to the feel good declaration of the English, sensing full well hidden artifice behind it. The English had offered clemency through rule of law only to enslave, and heroes and heroins opted for privations and risks at the claws of beast in the dense forests of Nepal. V.D. Savarkar estimates sixty thousands of them taking to jungles, spurning British clemency and rule of law. Not thousands but millions lost lives in the sacrificial bonfire of war of Independence of 1857 .

Similar saturnalia of inhumanism followed the two world wars brought about by the most reasonable and civilized. Retributism crashed the tower of corporatism; counter ism was begot to dispense justiceism through blistering bombs where humans surrendered were shattered. to the splinters of bombs and life was extracted from caged hawks. Humanity groans helplessly in Iraq and Afghanistan under recent donquixotism.

India is fast receding from her culture of Maryadas. Undefined functionalism has spawned threats to institutionalism. It may be quoted, Injustice anywhere is a threat to justice everywhere.’

Do they not know? ………..BANI ADAM AZAE EK DIGARAND KE DAR AFRINASH J EK JOHARAND. (Gulistan by Sheikh Saadi). (Progeny of Adam are a part to each other, for they are born of the same stuff). Then why inhumanism? Because they have not had faith in the universal humanism.

Ingenuity begot science and art, which contributed a little to human welfare. Science deals with matter and devised laws and formulas applicable to the inanimate world. Humans have suffered as much from scientific development as availed themselves of it. Facilities and amenities have multiplied and so has augmented human dependence on them. Intensity in realization has come down proportionately. A thirsty man thrills on a draught of cool water; the cloyed nauseate at it. If science has bettered life, it has bettered too much to sustain the dignity of it. Besides, science has created Frankenstein’s monster ready to devour its masters, if let off.

Science has its sibling in the garb of Art, which has the potential of infecting the many with its sinister tendency to convincing them of its falsehood. Both have gone down deep in human nature. One has made him weak the other, capricious. Affluence in the material world obviates the need for being strong; the art screens the reason for it. The result is that man has lost the verve to encounter temptation or terror, oppression or flavour, or personification, ramifications or amplification of any of them. The truth endures no embellishment:

‘The world looks like a multiplication table or a Mathematical equation, which, turn it as you will, balances itself. Take what figure you will, its exact value, nor more nor less, still returns to you. Every secret is told every crime is punished; every virtue rewarded every wrong redressed, in silence and certainty.’

…………………..   ………………   …………………..

‘crime and punishment grow out of one stem. Punishment is a fruit which unsuspected ripens within the flower of pleasure which concealed it. Cause and effect, means and ends, seed and fruit cannot be separated. The same dualism underlies the nature and condition of man. Every excess causes a defect, every defect an excess. Every sweet has its sour every evil its good. Every faculty which is a receiver of pleasure has an equal penalty put on its abuse ……………….. For everything you have missed you have gained something else, and for everything you gain, you lose something. If riches increase, they are increased that use them. If the gatherer gathers too much, nature takes out of the men what she shuts into his chest, swells the estate, but kills the owner.’

-R. W .Emerson ‘Compensation’.

So each of us is subject to inevitable and immitigable law of compensation. The shylock of cosy life demands an usurer’s interest for each pleasure. Material progress is, however, not to be grudged. What is desiderated is the Maryadas on its use for the sake of others. Affluence has given humans its own curse. The fabled complacent peasant could have done well if he had followed his dubious friend IMP till the latter guided him to prosperity, and eschewed his ways leading to lavishness, for, then, falling in the dirt because of over-drinking would not have put him to remorse.

(Reference is to the story ‘IMP and Peasant’ by Leo Tolstoy))

Nature has retaliated ruthlessly on the scientific advancement fobbed on through overpopulation ……….a problem which jeopardizes the very institutional existence. The inefficient norms of life fall one by one and jurisprudes yell for help and draw desperately upon logomachic logickism. This, however, opens flood-gates of crimes irrespective of collar white or blue. Blend of science and art have reduced human conductivity. For, the whole realm of scientists revelling in Physics & Chemistry has not yielded KIMIAYE- SAADAT, and those dabbling in scientificism and pleading and preaching substitution of scientific institutions for MANDIR, MASJID, CHURCH, etc. (Religion and the Constitution, AIR 2002 Journal 61 & Sharif Saifi vs. State of U.P., 1999(I)AII.L.J. 210) forget:

‘The basis of all systems, social, political, rests upon the goodness of men. No nation is greater or good because Parliament enacts this or that. But its men are great and good. Religion goes to the root of the matter’ (Vivekananda in ‘Complete Work’, VoI. V, Eighth Edition. Pages 192-193 quoted in A.S. Narayan versus State of A.P., AIR 1996 S.C. 1765, Para-42). A judicial inquisition commences with oath, which is a matter of faith, and sanctity of which decides the ultimate result.

 Man does not a1ways go by scientific formulae. He, however, does by his faith good or bad, complete or incomplete, implicit or volatile. His relations with his fellow beings differ because of variable faith and consequent outlook unto others. Faith has had its own tyranny. When it is not man friendly it is fanatism; when it is unreasonable it is superstition; when it tacks a comprehensive scheme for symbiosis it is parochialism. No doubt God the creator and sustainer is the centre of all faith but when the concept of God is restricted to a community or land humanism suffers from having no universal fraternity. So for a sustainable faith, let God be sustainer of all the worlds - Rubb-ul-ul-Almin - Master of the day of Judgement of Hell and Heaven and Source of comprehensive human systems or a defined  (It means the same as in the path is defined by rows of trees) way of life. Over stretching of any virtue is ludicrous and systems sans faith in holistic approach to life preached by Mothers, or Sisters or Fathers is treacherous. The beguiled meet with Cassious Kilay fate before long. Fraternity based on love and equality cannot be bought by charity shows, where Pauls are paid after Peters have been robbed. Where is sacrifice, the base of charity? A way of life which can be any way of life is no way of life. Such a way of life can sustain no system as it is pliant to any shade or colour and holds no future for mankind. It can yield to the pressure or make for fanatism, a bane to humanism and institutions. Faith in God and His scheme of punishment and reward has governed men more than legislated texts the world over.

Legislated laws have touched, only the brink. Much remains yet to be recognized. They seek to bridge abysmal gap with ambiguous but gilded terms such as, ‘equitable’, ‘reasonable’, ‘good-faith’, ‘good-conscience’, ‘morality’, ‘honesty’, and many others yet to be devised. How and how far they have worked on humanity may be verified from historical facts. Recent Political-Scenario and consequent social bathos shows up the garrulity broken on them. Conscience as it is fielded is a fallacy. Even persons like George Washington were taken in by the term when he says:

‘Labour to keep alive in your breast that little spark of celestial fire called conscience.’

(Referred to by Justice R.R. Yadav in ‘Conceptualization of Justice’

-AIR 2001 Journal 267).

He means conscience is innate in human nature but history belies it and holds out numerous instances to show that the undefined conscience led the powerful to egregious inhumanism and justice bade adieu at their hands. Conscience, however, seems to be accumulated impression a person receives as acceptable from society. Can a person brought up in a pack of wolves have any conscience, or humanism in the least. In the same way morality from mores is conventionalism depending for its modes upon the popular practice. ‘Naitikta’ if it is an abstract of ‘Niti’ confounds itself to a stratagem or contrivance to serve one’s purpose. ‘Chanakyaniti’ to the present ‘Rajniti’ barring occasional personal perceptions made by a few or those held out for guidance of a few testify to the view-point.

Lawmen struggled to usher-in foolproof legal systems. The process then lengthened and over-shadowed the end. Learned Hand summarizes the legal process only as a means to inhumanism; “As a Litigant, I should dread a law suit beyond almost anything else short of sickness and death.” (Quoted by N.A. Palkhiwala in ‘We The Nation’, Page 214).

Reasonable restrictions have had their day. With the spread of civilization and with faith vanishing, reasonableness varies from person to person, place to place, and time to time. Judicial hierarchy proves the point. Restrictions are not Maryadas inasmuch as they are not attached to faith. Implicit faith in a well defined path of virtue (ACHCHI TARAH SE MARYADIT GUNWAN JIVANAPATH) is the desideratum, even to have precedence over volumes of legislated laws. To elucidate a little, dereliction of ‘HAYA AND HlZAB’ unknown to the west but Maryada in Indian Culture, has brought about havoc in the life of better half of mankind. Hizab not only rendered fair sex fairer but also guarded her against competition, facilitated justice to the under privileged or those not so fair, preserved the most important institution -- family, where love prevailed and the offspring brought up to bruit about love and Maryadas holding against tantalizing equality, liberty, wealth, etc. short of love, peace and humanism. The civilized even hold out prizes, trophies and titles to outrage the Maryada. The institution of family escaped the death blow in the failure of civilized agenda of sexual liberty fielded by World Women Conference held in China.

Success of a system is to be verified by the effect it carries on the society. Rising crime graph and vertical moral bathos speak ominous for the legislated laws. Nani A. Palkhiwala, first censures the Judicial System through a dialogue with Naushirvan Engineer -- Advocate General of India in 1947 (‘We The Nation’, Page 211) but then takes up cudgels for the prevalent system. He says on the same page; ‘If we did not have the rules of British Jurisprudence, it would be impossible to administer justice in this country.’ Not that the laws need vetting but they do want ‘IMANDAARI’ for their sustenance. Why?  Are not conscience, reasonable restrictions, morality, good-faith, equity, etc. sufficient and capable of sustaining systems? No. Certainly not, they lack faith in and observance of a well-defined path of virtue. The propounders use them as legerdemain to secure their hidden agenda --- legalism.

Let us come down to the basics of laws. ‘The maxims of law”, says Justinian, ‘are these; live honestly; hurt no one; and render everyone his due.’ The West has adopted the formula and expatiated on them according to their need. Justinian added the last two clauses because he did not find them included in “live honestly”. If the thieves distribute the booty equally among them, they act honestly. What is due may be reasoned out to be anything and hurting may be justified in punishing the rogues. This is what the West has gone by and that is what the powerful have been doing the world over.

We Indians have so far been interpreting honesty as ‘Imandaari’. ‘Imandaari’ has been the under current of all our activities, our Indian culture, subject of literature, and devotion of seers. It is now subject to much emulation and simulation. Its meaning and purport we do, however, now fight shy of. Courts have been touching its edges only. Infatuated by civilization and its fanfare, they have been evading the direct import and importance of it. In a vainglorious fiat it is often snubbed as superstition and obscurantism. Even the most scientific on excogitation are bound to admit its potentiality to sustain the entire humanity and all its systems and relieve mankind of the unnecessary burden of strife and struggle, and insulate it from cosmic disasters and perpetuate Justice Ayer’s Humanism till day of Judgement. Man friendly, world-friendly, universe-friendly, tested and tried over ages, it provides standard to mankind, distinguishable from all other creations of God. It is holistic to mankind. Justice is only a facet of Imandaari, which permeates all human systems with humanism. It is a faith, it is a religion. It is a well-defined path of virtue. It is power, it is restraint. It is gist of philosophies; unfailing gain where rights and duties are inseparably mingled and sacrifices adorn fraternity and love of man. What is it which is so conspicuous yet little recognized? Yes, it is ‘Imandaari’ a most significant term man has known. ‘Daar’ of ‘Imandaar’ is from Persian Dastan (to have) and like maaldar means ‘a person who has’. So Imandaar is one who has faith, for ‘Iman’ is faith implicit. But the term is much more significant. When the Muslims fielded it, they meant, thereby implicit faith in the ‘Kalma Tayyaba’, which literally means nothing is worshipable but God Hazrat Mohammad (Blessings, and peace be upon him) is the prophet of God. The Kalma is a whole and not a combination of segments detachable at will. Any part of it detached makes every thing incomplete. It begins with supremacy of God over all other things and at the same time presents a model conduct to be followed. The construction begins with an emphatic negative to emphasize that no power is worth our surrendering to but God, that is, if we surrender to temptation or terror, oppression or flavour, or any other power save God’s, or any implication, ramification, modification, manifestation of any of them, we may be anything but ‘Imandaar’. We have also to surrender to Him to account for our deeds. The concept immediately necessitates indefatigable will-power to face the terrestrial forces. Animalism abuts on the concept and gets morphosed into humanism. Banditry surreptitious or overt, common or non-pareil occurs when the perpetrators believe that no one sees them and to none they are responsible, without realizing that they are subject to law of compensation and within the four-corners of mortality, and they have to account for their deeds before their maker. The weak degrade themselves to become Dhan Pashus. This part of the Kalma is, however, as incomplete and ambiguous as any other term we employ to cool down our pedantry with. The remaining part of the Kalma is as much indispensable as the first. It connotes ‘FOLLOW THE WELL DEFINED PATH OF VIRTUE’, for the Muslims saw the complete NIZAM-E- HAYAT (system of life) -- well defined path of virtue in following the prophet* .  The viability of the dictum lies in the fact that the NIZAM-E- HAYAT has been criticized and abhorred but the world has not been able to present alternatively so comprehensive and man friendly a system. I stress implicit faith in surrendering to nothing but God and following a well defined path of virtue, which not only subserves justice but also upholds humanism reducing diverse isms to the minimum.

Laws inherited, indigenously legislated; adopted or thrust suffer from lack of Imandaari -faith in responsibility unto God and following a well defined path of virtue. No doubt, they are a fine display of semanticism. Logic and rhetoric are on the move to circumvent human functionalism. Reality, however, leers at them. Cumbrous cacophony adds but to the woes of man. Where realism is a viable blend of principles and practice, faith alone enlivens it. Until Judges, legislators, executors, and the laity observe Imandaari, humanism is the occasional episode in the general drama of legalism.

***


** Justice V.R. Krishna Iyer; (1978 SCC 424, Para-13).

 * Dedicated to the memory of Shamsuddin Altmash – a great saint, who being flummoxed by the Will of Khwaja Bakhtyar Kaki that the last prayers for him be led by him, who fulfilled three conditions relating to abstinence from common vices and dedication to offering prayers, exclaimed, ‘Ay Khwaja! What have you done! If I do not lead your last prayers, you will be buried without prayers, and if I lead the prayers, my humble secretes will be out