Hindu Law and the Constitution

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When Mr. Asok De of Eastern Law House approached me for editing Chief Justice A.M. Bhattacharjee's book on Hindu Law and the Constitution, I was at my wit's end for various reasons. First of all I knew Chief Justice Bhattacharjee very closely and was aware of His Lordship erudition and the meticulous care with which His Lordship used to write something. But Mr. De was insistent and said that Chief Justice Bhattacharjee had a lot of affection for me and I should take up the work.

So far as affection was concerned, Mr. De was right. But mere human affection does not equip me with the task Mr. De was requesting me to take up. However, with a great deal of trepidation, I agreed, making it clear to Mr. De that it would not be possible for me to touch the text of the book which, in a way, is sacred to me. I can only deal with those portions of the text which require some changes with the amendment of the law and I have done that in respect of the last chapter of the book. But I have added several chapters to the book as I wanted to share with the readers some ideas on Hindu law and the Constitution.

Both Hindu Law and Constitution are topics of very wide import and there are several areas of divergence and some of them may overlap. In the swirling ideas of Constitutional and Hindu Law there are very many values and tenets of enduring importance. And to my mind secularism is one such principle and it is extremely relevant in today's context. Therefore, I have devoted several chapters on that. I have also critically examined some important judgments of the Hon'ble Supreme Court, that of Ismail Farooqi and those of Prabhu and Manohar Joshi.

In my very humble opinion in the majority judgment in Farooqi and in the judgments in Prabhu and Manohar Joshi, the Constitutional principles of secularism were not properly appreciated. I believe justice is not a 'cloistered virtue', and as a student of Constitutional law, I have offered my humble criticism of the judgments. At the same time I express my total respect for both the Hon'ble Supreme Court and the Hon'ble judges delivering the judgments. While criticizing the judgments, I felt inspired by what was said by Voltaire "An open-minded hospitality for new reasons is essential to intellectual advance", quoted by Sir Asutosh Mookerjee.

I sincerely feel that our Constitution evolved in a manner reminiscent of Common Law tradition. And it is the 'brooding omnipresence' of common law which provides the key to decode the tides and turns of our Constitutional law. That is why our Constitutional law today is not what it was, say, fifty years ago.