Chapter XXI Part II
The Drive towards Legislative and Social Centralisation and Uniformity
When the ruling authority, the monarchy or the State achieves full control over the administration as well as unity and uniformity of the judicial administration, dissenting voices are bound to appear. While today it is the modern human rights activist who comes forward to protest to uphold human values, initially, it was the conventionally established religious authority who protested for fear of losing sway over the masses and influence over the throne. Sri Aurobindo writes that against the tendency to unification and state authority, ‘there militates often a religious sense in the community which attaches as in most countries of the East a sacrosanct character to its laws and customs and tends to keep the king or State in bounds; the ruler is accepted as the administrator of justice, but he is supposed to be strictly bound by the law of which he is not the fountain but the channel. Sometimes this religious sense develops a theocratical element in the society, a Church with its separate ecclesiastical authority and jurisdiction, a Shastra in the keeping of Brahmin jurists, a law entrusted to the Ulemas. Where the religious sense maintains its predominance, a solution is found by the association of Brahmin jurists with the king or with the judge appointed by him in every State tribunal and by maintenance of the supreme authority of the Pundits or Ulemas in all moot judicial questions’ (The Ideal of Human Unity, pg 452). Thus the Federal Shariat court in the second decade of 21st century Pakistan can still strike down any law that is not in compliance with the code of Islamic law (Sharia) though the responsibility falls upon legal scholars who are Muslims but not necessarily religious clerics. Modern India tries to balance secular governance with religious communities by delegating some aspects of civil law like control of marriage to the latter.
Sri Aurobindo also points out that unlike in the East, the Western mind-set has a stronger political instinct than the religious, with the result that the ecclesiastical jurisdiction came to be subordinated to the State and finally disappeared (Ibid). Thus, the US constitution was very particular to install a ‘Religious Test Clause’ to prohibit the use of a religious test as a qualification to serve in any office or public trust. In construing the protections under the Establishments Clause and Free Exercise Clause, the US courts interpret the term ‘religion’ quite broadly to include a wide variety of theistic and non-theistic beliefs.(Bryan A Garner [Ed]: Black’s Law Dictionary, Thomson Reuters, 2009,pg 1405)
Once the State achieves absolute control over the administration and the judiciary, the danger of subordinating the judiciary entirely to an executive possessed of arbitrary and irresponsible powers becomes obvious. Sri Aurobindo notes that ‘it is only in England – the one country always where liberty has been valued as of equal importance with order and not considered a lesser necessity or no necessity at all –that there was a successful attempt from an early period to limit the judicial power of the State. This was done partly by the firm tradition of the independence of the tribunals supported by the complete security of the judges, once appointed, in their position and emoluments and partly by the institution of the jury system. Much room was left for oppression and injustice, as in all human institutions social or political, but the object as roughly attained’ (Ibid, pg 453). In fact, Henry II’s introduction of the trial by jury had two important significances. Firstly, the process of trial became reasonable based on hearing testimony and weighing evidence in contrast to trials based on superstitions and ordeals trying to find a scapegoat in God. Secondly, the concept of ‘grand jury’ was broad-based to include citizens so that people could not only be trained to take part in the administration of law but also would be aware of larger privileges that in the course of time would shape future laws. The symbol of the jury is still looked upon as a protection from authoritarian control in the English psyche. It is in this context that Lord Devlin’s famous and oft-quoted comment in 1956 that trial by jury is ‘the lamp which shows that freedom lives’ assumes significance.
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- By Dr. Soumitra Basu