Former Chief Justice of India Justice Dipak Misra talks at length on law, myths and dharma.
New Delhi: In the “Legally Speaking” programme on NewsX, former Chief Justice of India, Justice Dipak Misra talked on law, myths and dharma. Excerpts:
Q: Your opening comments.
A: When I say myths, I treat it as a story from any of the epics or puranas, which are there in India or other kinds of stories, which are available in ancient Greece or Rome. How we really connect the context with the modern legal principle is the attempt and endeavour.
Q: Do we have Indian myths that expound on principles of public international law?
A: To explain this, I have to go to the Ramayana. There are some details after Hanuman finding out Sita, that I don’t intend to get into. What eventually happens is that he is tied up and taken to the darbar of Asura King Ravana. Ravana issues directions that the monkey should be killed and burnt. No one protests, but Vibhishan says: “Rajan, do not do this, he is a duta—an ambassador from another sovereign—and as per practice, dutas are not to be punished.” Just connect with the 1961 Vienna convention; it lays down that immunity has to be given to ambassadors or diplomats. This immunity that has been given in the modern world, was told in a different way by Vibhishan to Ravana. This comes within public international law. Throughout history, myth or any other literature you enter into, you will find Vibhishan is the first amicus curiae, arguing for a person who has been accused of a crime. Section 304 of the Code of Criminal Procedure stipulates that for a person who cannot engage, the courts will provide him the legal aid—that is a statutory command. Access to justice has been treated as a fundamental right and Vibhishan espouses the cause of Hanuman while attracting the principle of international law.
Q: How is the idea of existentialism portrayed in myths and dharma?
A: First of all, for this purpose we have to understand what existentialism is. It portrays life is meaningless and it’s a circle you have to go through and the whole living process is an exercise indefinitely. You do the same thing time and again. Now, let’s connect this with the Greek myth, the famous Greek myth of Sisyphus. Sisyphus was cursed that he should carry a boulder to the top of a hill and the moment he used to reach there with the boulder that boulder would fall and he was compelled to, by the curse, to take it up again and he has been doing that since centuries. This is the purposelessness of life. This purposelessness, in a way, is put by Adi Shankaracharya in Bhaja Govindam, when he says puranampi janamam puranampi maranam puranampi janani jatare sayanam: this process is going on therefore you must do something purposeful and he advises that you must pray to God after surrendering or surrender and pray to God. This purpose is, in a way, differently accentuated by Lord Krishna in Gita. This is any person who has to leave, has to get a meaningful life. Any action you do is not without a purpose, but you don’t judge that action and that is why our dharma says, all of us have been created because of the delight of the creative intelligence and there is a beautiful phrase, anandat sanjataha: we have come to Mother Earth because of the delight of God. Delight can be translated in this context, the leela goes on and there is a distinction between leela and maya, the play of God and the illusion and we are here with a purpose, we are here with a meaning. What I intend to tell you people is today existentialism is not the way of understanding life. It is a concept, a philosophy, which has been stated, but the purposefulness, the meaning that has been conformed to the term life, which is very vibrant in our dharma matters, and dharma here means Raj Dharma and the Raj Dharma of the yesteryear is comparable today to the Constitutional paradigm…
Q: What is your take on the idea of justice in the Lord Ganesha-Lord Kartikeya story—one we have all heard as children?
A: I have a different version of the same. A narration given by Mr Neelkanth is not disputed that there is a factual narration, but let us lift it to the modern era. To win the contest (of who should get married first), Kartikeya took the data that was available. He knew the geography of the earth and had immense trust on his vehicle and completed travelling around the world. Ganesha, however, exercised his knowledge and thought. The parents—Shiva and Parvati—were the universe as they were the creators and he completed the circles in no time. How do we really understand it in the present context? For the younger generation, Kartikeya used the digital database as a connection or the provisions of the IT Act 2000. In contrast, Lord Ganesha used human knowledge. Today, there is a tussle between Artificial Intelligence and original intelligence. But as Lord Ganesha exercised his original intelligence and was successful, I am hopeful that eventually, original intelligence will always take over artificial intelligence and will stand supreme.
Q: The right to reputation is a fundamental right to life and personal liberty under Article 21 of the Constitution; is there a story that illustrates this?
A: In Mahabharata, Kunti had revealed to Karna, otherwise called Radheya, that he should not fight the war as he was her son. Karna said: “No, I must live up to the expectations of my friend Duryodhana. I will fight the war, but I assure you, I will not kill Yudhishthira, Bhima, Nakula and Sahadeva. The fight shall be restricted to Arjuna and I.” When the war was being fought, Karna defeated the four of them, but released them; that was humiliation and insult and Yudhishthira retired to his tent. The war was on, the sun had not set and the message travelled to Lord Krishna and Arjuna. They went to Yudhishthira’s tent and Arjuna said, “Brother, we have come to see you, because we have been told how Karna has behaved.” Yudhishthira was angry, and said: “I thought you have come to tell me that you have defeated Karna and eliminated him. You say you are the man who possesses the Gandiva bow; you are useless.” Arujna had taken a vow that he will kill anyone who abuses the Gandiva. Infuriated, he took out his sword and proceeded towards Yudhishthira to eliminate him. Krishna intervened to stop Arjuna from killing Yudhishthira, saying that Yudhishthira was Arjuna’s brother. Krishna told Arjuna that there are deaths of many types. It’s not the physical extinction that amounts to death—there can be death where the reputation is dented. This concept has, in a different way, been told by the Supreme Court. Not this story, but the law in case of Nandini Satpathy, Dr Mahmood and Nambi Narayanan, where compensation has been granted on public law remedy. Compare the story of reputation preached by Krishna and why reputation has become an inextricably linked facet of Article 21 of the Constitution.
Q: Do the thoughts of any foreign jurist correspond to Indian myths? Have you come across any such thing?
A: Law views everyone equally. Neither the king nor the poorest subject can ever be out of law. Thomas Fuller had said that whatever position you may occupy, the law is above you. Sir Edward Coke had also said that the king is beneath the law. When Krishna had gone to Karna, he reveals to Karna that Karna is the son of Kunti and that he must not fight and must go and join the Pandavas. He says no, and eventually Karna says: “Krishna, don’t discuss with the Pandavas that I am the eldest Pandava, then Duryodhana will be shocked and Yudhishthira will give the crown to me and I being obliged to Duryodhana, I will give it to him. The dharma war which we are fighting will not be solved.” It’s Karna who says for the first time in Mahabharata that dharma is at the top—what you call in the modern context “Constitutional sovereignty”. Law is supreme, no one can be beyond law—that is how the foreign jurists’ statements and statements in Mahabharata by Karna can be compared.