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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.
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