Decolonial Jurisprudence

Concept/Idea
— Knowledge of law or Jurisprudential exposition of legal
thought facilitates readers to delve into deep
philosophical questions related to law. These are the
questions that start with ‘why’, against ‘what’.
(Ontological studies)
— These questions are related to wisdom, logic and
reason. But whether such reason(s) or knowledge is
independent and universal in its existence or depends
on particular ideology or approach? Whether such
knowledge has any teleological construction?
— And whether it operates within a constructive
normativity?
— Whether knowledge itself is confined between
boundaries of global north (colonial) and global south
(decolonial), where former is dominating the world?

— epistemicide the inclusivity of such knowledge.

— As we know philosophy, in principle offer itself as a
testament to freedom. What could a celebration of
thinking and reasoning be if doing so were shackled?

— Construction of Subordination: historical rise of

particular group/culture as self-avowed sole progenitor
of philosophical practices.
— Historic hegemony
— coloniality of knowledge while setting norms
— A market is created to encashment of such narrative
& philosophy become the commodity of academic
market place.

— dominance logic and grammar- disciplinary

proposition
— Self-shacking and self-defeating through the
presuppositions of purity and collapsed it into itself.

— Role of language: e.g. of chair- English word- French

chaiere - Latin- cathedra (seat)- there were
languages older then english,french and latin-
language of ancient people –Kemet.
— Word Philosophy (philo) loving (sophia (wisdom)..
Claim that philosophy originates ancient Greek…

— Mediterranean people and culture

— Debate on Human Sapiens – their place of origin
— Philosophy- Europe-Greece-Kempet- wise teaching; to
be wise etc.

— Problem of prejudice
— Africa v. Europe – global south & global north
— Colonial philosophy as universal –theories of
economic/industrialization; development to enhance
democracy – gentrification
— W. E. B. Du Bois, - theory of double consciousness
— Opposite- African Philosophy is about
understanding human, freedom – (the soual of black
folks)

Conclusion
 Nyaya Philosophy
— Nyāya- Justice, equality for all being, method rule or
judgment is one of the six school of Indian Philosophy.
— Developed theory of logic, methodology
— Philosophy accepts four kinds of Pramanas (proof)- 1)
perception (pratyaksa); 2) inference (anumana); 3) ‘word-,
meaning the testimony of past- present reliable experts
(Sabda); 4) based on comparison and analogy (upamana)
etc.

— These are the reliable means of gaining knowledge.

— According to Nyaya philosophy- human suffering results
from mistake/defects produced by activity under wrong
knowledge
— Moksha (liberation) is gained through right knowledge.
— Nyaya concern itself with epistemology, i.e. reliable means to gain
correct knowledge and to remove wrong notions.
— Accordingly, false knowledge is not merely ignorance but it
include delusion. True knowledge is identifying and removing of
individual’s delusions and understanding true nature of soul, self
and reality.
— Naiyyatika scholars states anything that really exists is in principle
humanly knowable. For them, correct knowledge is other then
simple, cognitive. It require Anuvyasaya (cross-examination).
— Nyaya Sutra (b/w 6th Century BC to 2nd Century BC) (of
Aksapada Gautama)
— State of liberation (moksha) is stage of removal of ignorance;
wrong knowledge; it is about gaining Correct knowledge and
unimpeded continuation of self.
— In Sanskrit etymology Nyaya also means ‘that which shows the
way’
—
— In philosophical context it encompasses propriety,
logic and method.

— Nyaya philosophy is related various other concepts

of Indian Philosophy- Anviksiki (science of inquiry)
Hetu-vidya (science of causes); Pramana (science of
correct knowledge); tattava Sastra (science of
categories); tarka-vidya (science of reasoning,
synthesis); Vadartha (science of discussion);
Phakkika-sastra (science of uncovering error or
fraud)
— Nyaya concept is based on enthymeme & syllogism.
– deductive reasoning

— Chapter 129 of Rigveda-

— Sixteen categories (padarthas):
1. pramana (valid means/source of knowledge)
2. Prameya (object of valid knowledge)
3. Samsaya (doubt)
4. Prayogna (aim)
5. Drstanta (example)
6. Siddhanta (accepted position)
7. Avayava (syllogism or inferential component)
8. Tarka (hypothetical/suppositional reasoning)
1. Nirnaya (settlement)
2. Vada (discussion/debate)
3. Jalpa (wrangling or disputation)
4. Vitanda (caviling or destructive debate)
5. Hetvabhasa (fallacy or pseudo proofers)
6. Chala (quibbling or equivocation)
7. Jati (sophisticated refutation)
8. Nigrahasthana (point of defect)
 Mimamsa theory
— Mimamsa means reflection or critical investigation.
The concept is referred to the interpreting the
meaning of Vedic text.

— Purva Mimamsa & Karma Mimamsa

— The theory admits two kind of valid knowledge-
immediate and mediate. Immediate knowledge
arises in soul whenthe object is in direct contact
with both the internal sense and internal.

— It is used for solving conflicts between Sruti and

Smriti, between one Smriti and another & b/w
Smriti and custom . Jaimini’s Mimamsa is the most
important contribution in this regards.
— Few axiomatic rules are following:
— Sarthakeya: every word should have purposeful meaning

— Arthaikatwa: same words should have the same meaning

— Gunapradhana: reconciliation of all ideas with the principal

one

— Samangasya: contradiction should not be presumed and on

the contrary
reconciliation should be attempted

— Vikalpa: Choice b/w two meanings is permitted

— Anarthakeya: An interpretation which makes a word or

phrase meaningless should be
avoided.
— In U.P. Bhoodan yagna Samiti v. Braj Kishore 1988, court
recognized these rule as the important for interpretation. Whenever
there is conflict between Smritis & Shrutis – Mimansa principle
used to be applied.

— Jurists like Vijnaneshwara (Author of Mitakshara); Jimutvahana

(Author of Dayabhag); etc.

— Bench of J. Katju and J. AK Ganguly in its order said that Mimnsa

Principles are important , are there for over 2500 years. But today
there is very less applicable because of unfortunate use of other
literatures by Advocates... Mimansa principles needed to be revived.

— Tribhuwannath v. DIOS writ petition no. 17544 of 1990, one such

principle was applied– in course of hearing two division bench
decisions apparently conflicting with each other… Rule of
Samanjasya

— Sardar Md. Ansar Khan v. State of UP- petitioner and respondent

were appointed as clerks in a collage. ..question of seniority –UP
Directorate of Edu. Minisetial Services Rule 1983;

— Principle of Atidesha- extrapolation was applied by the court.

— Justice BN Srikrishna- Article – Mimansa v. Mexwell
For details Kindly see: https://iep.utm.edu/nyaya/
 Transformative
constitutionalism
— J. Chanderachud, Transformative constitutionalism refers
to the infusion of the values of liberty, equality, fraternity
and dignity in the social order. Thus, transformative
constitutionalism is an inevitable as well as a significant
process that helps to define the essence for democracy
and a Constitution within it.
— 1998 by Karl Klare, a US scholar Professor in the
South African Journal of Human Rights.
— Transformative constitution means that the law is
transformed through a statute by enacting a new law
in place of preceding one in order to bring radical
change.
—
— This could also mean that the statute or constitution
has a transformative purpose, i.e., that a change in
law is brought about that is purposed to have a
transformative impact on its field of action that
could not be regarded as transformative of the
content of law.
 Journey of Indian Constitution : From
Conservative to Transformative ?
— In march 1948, princely state named Sant become
the last state to accede to newly independent Indian
Republic.

— Within a year the it was merged with state of

Bombay.
— Various parties moved to the state-multiple round of
litigation- SC 7 judge bench in 1964… State defence
was simple –Privy Council, highest court of appeal in
colonial Inda has repeatedly held- when a sovereign
state aquire territory, it could choose whether or not
to recognize the rights enjoyed by inhabitants of the
territory...
— 4-3 majority – favor of state- Justice Shah
concurring opinion..

— There is no warrant for holding at the stroke of

midnight of the 25th Jan 1950, all our pre-exisitng
political insitutions ceased to exist, and in the next
moment arose a new set of insitutions completely
unrelated to the past…

— Justice Shah- followed Privy Council’s ‘Act of

State’s doctrine’

— Justice Vivian Bose in one another case has rejected

the doctrine
— “In our opinion, the Constitution … blotted out in one
magnificent sweep all vestiges of arbitrary and despotic
power in the territories of India and over its citizens and
lands and prohibited just such acts of arbitrary power
as the State now seeks to uphold … the past was
obliterated except where expressly preserved….
— Justice Shah labeled these as ‘assumptions not
supported by history or by constitutional history….
There is merely change in the form of govt.
— For Shah, significant of continuity.. Use of words-
‘continuance’; ‘evolution’; ‘gave shape’ etc.
— For Justice Bose on other hand it marked
transformation – ‘bottled out’; ‘abandoned’; ‘obliterate’;
‘new order’ etc.
— Supreme court in its very first decision the Supreme
Court had upheld the constitutionality of preventive
detention laws that replicated their colonial
antecedents

— On other side, guarantee of gender equality to

pregnancy based discrimination; privacy etc.

— At the heart of every constitutional decision is the

court’s assessment of what the Constitution means,
why it exists in the shape and form that it does, and,
above all, what injustices it is meant to remedy.
— Background of J. Shah- B.N Rau, Constitutional
Advisor, ‘India’s Constitution in the Making’
classified the moment of Independence as
‘transference of power (against transformation)

— E.g. CA own its authority from Cabinet Mission Act,

1946- its members elected under provisions of
colonial legal framework.
— CA borrowed heavily from Govt. of India Act, 1935,
as much as 75%.
— It has deep influence- in 1958-J. Venkatarama Aiyar
observed the provisions of Constitution must be
interpreted in light of Govt. of India Act, 1935..
— Where was rupture with the colonial regime? -
particularly when Constitution replicated some of
very provisions that has been subject to bitter
protests during the course of freedom struggle.
— For instance, preventive detention laws; political
executive power to pass ordinance bypassing
legislative procedures, power to suspend the legal
and administrative system by declaring the
emergency?
— Even though continued from colonial past- CA
declared itself sovereign body..

— Radical departure- in the words of Udya Mehta- adult

franchise

— “Here was a document which granted universal adult

franchise in a country that was overwhelmingly
illiterate; where, moreover, the conditionality of
acquiring citizenship made no reference to race, caste,
religion, or creed…“granted a raft of fundamental
individual rights in the face of a virtually total absence
of such rights ”
— As it is claimed that constitution transformed the
subjects of colonial regime to citizens of republic.

— Right to self determination

— Samya (Equality) 1879 by Bankim Chandra
Chattopadhyay; debates over Child Marriage bill;
Ambedkar’s Annihilation of Caste..

— But Hannah Arendt reminding us not to get carried

away- right to have right
— The Trinity: Closing speech of CA, 25th Nov. 1949,
“Political democracy cannot last unless there lies at the
base of it social democracy. What does social
democracy mean? It means a way of life which
recognizes liberty, equality, and fraternity as the
principles of life. These principles of liberty, equality,
and fraternity are not to be treated as separate items in
a trinity. “They form a union of trinity … liberty cannot
be divorced from equality, equality cannot be divorced
from liberty. Nor can liberty and equality be divorced
from fraternity. ”
— The constitutional trinity- Equality code: Art. To 18.
— But individual and public spheres & autonomy!
— Vertical & horizontal right
— construction of transformative nature; PILs as
vehicle to carry separate agenda of transformation.
— Conclusion