musings 78

The constitution of India is given by the people of India unto themselves, as declared in the preamble..

The reference sources for the Constitution are too many..

All the constitutions and legal treatises available for discussion for the Constituent Assembly. and the ethos of Hindu thoughts have surely influenced it..

The civil law fixing the titles or ownership for personal assets and defining the fiscal privileges between the people inter se, and the people with the state.. were according to conditions obtaining for centuries together, perhaps going back to the time of Vedas and Smritis..

Such laws have evolved through precedents..

So the Civil codes in India had to be be devised in line with old Dharmasatras wherever they were not redundant at present..

And even today the major sects of Hindus act on the basis of rules for succession etc.. which are

Mitakshara and Dayabhaga..

along with other ideas like Marumkkathayam in force in Kerala, Aliyasanthanam system in parts of Karnataka and so on

The morality and ethics also evolve through traditions..

So the old laws evolved as smrithis have influenced the criminal law too..

Where there are no codified laws, the precedents and traditions are relied upon by Courts to interpret situations and adjudicate upon them..

Thus old traditions, by whatever name called are cited and relied upon by courts..

A judge who sits in a bench is there to interpret law..

Even a judge who is a Muslim can interpret Hindu Law and a Hindu Judge can interpret Shariat law to the extent it is applied to Indian law as defined by the Sovereign Authority..

The remark that the judge does not follow the law himself is not relevant..

We have no business to judge the personal conduct of a learned Judge in normal circumstances.

We have to be bothered only with the question whether the Learned Judge is interpreting the law correctly..

Criticizing the Judge on personal grounds is, by convention, not encouraged..Indeed  it is blasphemy.