Human Rights: Magna Carta, Indian Constitution and Vedic Jurisprudence
Magna Carta was a small term peace deal sealed eight centuries ago by the King of England to buy himself time in a power struggle with some his landowning nobles. King John recognized that, if he did not agree to the baron’s demands, then at best he might be deposed. He might even be killed. Previous kings of England have often given undertakings that would behave well but there was no procedure other than rebellion for ensuring a king to kept to his word.
But Magna Carta has been recognized through time and around much of the world as something more than 800 years old curiosity. It has become an idea. That idea is “No Government is above the law; that citizens, as individuals, have rights protecting them from the arbitrary actions of government; and they have access to due process within the law to protect those rights.”
The Magna Carta ideas has evolved from an 800-year-old resistance to the excesses of an absolute monarch in England. Its concepts were built into the constitutions of new nations formed through struggles in the centuries that followed. Its principles underpin many of the institutions that protect and advance human rights today.
What Conspire Magna Carta?
In medieval England, the monarch sat at the top of the hierarchy of power and status. Like governments today the king had to manage complex finances, raising revenue to cover his spending. And like most governments today there was a deficit to be covered. The monarch could raise money by taxation and fines, by granting charters of ownership to nobles, or by allowing rights to trade to an individual in return of a single payment (and usually from an additional quarterly or annual payment)
Since, Norman invasion in 1066, kings of England also had title to large areas of France. French, not English was still the language of the royal court. For most of the 12th century the English king had fought expensive military campaigns to protect their French possessions. King Richard I, John’s older brother, had been expansive monarch, financing a Crusade to the Holy Land, and then requiring an enormous ransom to be raised to free him from imprisonment.
When John succeeded Richard in 1199 there was already a major discontent among the landowning nobles at his arbitrary behavior in seizing property and imposing levies, taxes and extortionate fines to fund these foreign expeditions. Another unsuccessful military campaign in late 1214 brought to a head.
A number of landowning nobles, led by baron Robert FitzWalter, withdrew their loyalty to their king in May 1215 and marched with an army on London. London opened its gates without any opposition leaving John in an impossible position. The barons presented a list of demands based, they said, on the undertakings given by John’s ancestor, Hendy I, a hundred years earlier.
After days of negotiations at Runnymede, alongside the River Thames near Windsor, on June 15th John accepted the text what is known as “Magna Carta” the Great Charter of Liberties. It was effectively a written record of the rights, awards and obligations between the monarch and subjects.
Important Clauses of Magna Carta
Although Magna Carta contained 63 clauses when it was first granted, only three of those clauses remain part of English law. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns, but the third is the most famous:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
This clause gave all freemen the right to justice and a fair trial. However, ‘free men’ comprised only a small proportion of the population in medieval England. The majority of the people were unfree peasants known as ‘villains’, who could seek justice only through the courts of their own lords.
Much of the remainder of Magna Carta dealt with specific grievances regarding the ownership of land, the regulation of the justice system, and medieval taxes with no modern equivalent (such as ‘scutage’ and ‘socage’). It demanded the removal of fish weirs from the Thames, the Medway and throughout England; the dismissal of several royal servants; the standardization of various weights and measures; and so on.
Magna Carta stated that no taxes could be demanded without the ‘general consent of the realm’, meaning the leading barons and churchmen. It re-established privileges which had been lost, and it linked fines to the severity of the offence so as not to threaten an individual’s livelihood. It also confirmed that a widow could not be forced to remarry against her wishes.
Magna Carta and English Common Law
In a country lacking a written constitution, Magna Carta played a transformative role in the middle ages in shaping and influencing laws aimed at securing individual rights and liberties and curbing the use of arbitrary power. A clear manifestation of the Charter’s transcendental importance can be found in a statute enacted in 1369 under the reign of Edward 3 which unequivocally stated “If any Statute be made to the contrary, it shall be holden for none.” Furthermore, a number of substantive steps, later known as the six statutes, were taken by Edward 3 to flesh out the contours of the due process guarantee embodied in Clause 39 of the Charter and to broaden the scope of said Clause to include all men of every estate and condition within its ambit.
Magna Carta emerged as a powerful weapon against the royal absolutism practiced by James I and Charles I in the 17th century and formed the most integral pillar upon which the edifice of the theory of ancient constitution, most famously championed by Sir Edward Coke, was based. The bulwark of the ancient constitution theory rested on the belief that the English Constitution consists of a set of royal reaffirmations of English law, whose genesis can be traced back to Edward the Confessor, and Magna Carta was another such reaffirmation of the fundamental rights and liberties enjoyed by all men on account of the very fact of being human. The idea of a legal code circumscribing the power of the king acted as a powerful galvanizing force and eventually culminated in the Glorious Revolution of 1688 and the enactment of the Declaration of Rights which gave concrete shape to the principles that Magna Carta espoused.
In subsequent centuries, with the creation of new governmental structures and a more pragmatic and critical appraisal of history, Magna Carta came to be viewed as nothing more than an obsolete legal document whose only purpose was to create a modus operandi for grappling with a political crisis of limited significance. Further, the Statute Laws Revision Act of 1856, followed by the acts of 1861 and 1863 repealed large portions of Magna Carta which had become obsolete.
Magna Carta and America
During the US freedom movement, events moved quickly between 1774 and the United States declaration of Independence on 4th July 1976, with the outbreak of hostilities between the British army and colonial militias in 1775. The unifying ideas of the Continental Congress changed rapidly from seeking repeal of laws and taxes passed in London to a belief that neither Parliament nor King in England should have any jurisdiction at all.
US independence was settled at the end of the war in 1783 but the fierce debate continued between victorious states about how the new nation should govern itself. The ten first amendment to the brief US constitution, known collectively as the 1791 Bill of Rights, set out specific protections of the individual liberty and justice and placed restriction on the powers of government. Seventeen states beginning with South Carolina in 1836 incorporated text of Magna Carta into their statues books.
As in 13th century England, the freedoms and rights did not apply to every habitant. Native Americans and African slaves remained ‘unfree’. The arguments of the abolitionist against slavery collided with the rights of states to pass their own laws. The issue was only resolved after bloody civil war between 1861-65. The 13th, 14th and 15th amendments to the constitution brought slaves and former slaves under the umbrella of liberty envisaged by the founding fathers.
The Magna Carta influenced the US Constitution in a variety of ways. In the idea of the document demanding that authority respect certain individual rights, the basis of the Bill of Rights can be seen. At the same time, this helped to develop the antifederalist position that the Constitution must be seen as a shield against government encroachment. The Magna Carta’s assertion of habeas corpus is another example of how the document played a role in the formation of the U.S. Constitution. In developing the idea that individuals must know why the details in the accusation of wrongdoing, one sees the basis for the fifth and sixth amendments to the U.S. Constitution. The notion that individuals possessed a sense of legal equality to the even the most wealthy and powerful in society is another aspect of the document that is seen in the U.S. Constitution, in that equality is built within the law.
In 1939, when Lincoln Cathedral’s copy of the 1215 charter was put on show at the World Fair in New York, an estimated 14 million people went to see it in just six months. After war broke out, the cathedral’s copy was stranded in the United States, leading to the suggestion that the Americans should be allowed to keep it — or alternatively have it replaced with one of the copies now displayed in the British Library.
It would have been a priceless gift. An American author, writing in 1991, calculated that more than 900 federal and state courts in the United States had cited Magna Carta. In the half-century between 1940 and 1990, the United States Supreme Court had done so in more than sixty cases.
More recently, the highest court in the United States had to decide whether foreign prisoners detained by the United States at Guantánamo Bay, Cuba, could seek writs of habeas corpus that might lead to their release. Allowing their appeal in 2008, the court traced that powerful remedy back beyond the United States constitution of 1789 to what the judges regarded as its origin in clause 39 of Magna Carta. ‘Gradually, the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled,’ wrote Justice Kennedy for the majority.
Magna Carta and International Treaties
The first of 20th century saw the world convulsed in war twice at the cost of millions lives. Citizens of many nations had been tortured, dispossessed and murdered on the grounds of race, religion and sexuality or ideology by regimes that had no interest in individual freedom. There was a determination among most of the world’s leaders after World War II to ensure that no nation could oppress its citizens in the same way again.
The United Nations was convened in October 1945. A committee chaired by Elanor Roosevelt drafted the Universal Declaration of “Human Rights” which was adopted by the UN General Assembly on 10th December 1948. The declarations 30 articles committed its signatories to guarantee freedom fear and persecution. Elanor Roosevelt described it as “the international Magna Carta for all men everywhere”.
The European convention of Human Rights [ECHR] was drafted in 1950 and finally ratified in 1953 by the nations who were members of the Council of Europe. The convention also created the European Court of Human Rights in Strasbourg to hear evidence and reach judgements on whether the signatories to the convention are ensuring rights of their citizens are being respected.
Influence of Magna Carta on Indian Constitution and Judiciary
The UK does not have a tradition of including its fundamental arrangements in documents. This flawed conception has an extension: that a written constitution – a single text, or series of interlinked texts, expressly labelled a ‘constitution’, claiming to draw authority from the people, and enjoying special legal status – is alien to the UK. It is true that, at present, the UK lacks a written constitution so defined. But Magna Carta possessed some of the qualities now associated with such a document. It did not – and could not – include later ideas such as representative democracy or universal rights. Yet it dealt with the role of various institutions, such as the Church, central and local government, and the courts. Chapters 12 and 14 made stipulations about securing relatively wide consent to the raising of taxes. The text sought to impose limitations on executive authority and prevent arbitrary punishment, and provide for some individual privileges (but not comprehensive rights as we understand them). Magna Carta also tried to ensure a lasting existence for itself, through claiming it would last forever – prefiguring the later efforts of written constitutions to prevent their amendment, except by special procedures. Magna Carta further sought to create a powerful enforcement provision, removed from later versions of the text because it was too radical. A committee of 25 barons, provided for through chapter 61, could force compliance on a king they judged to be violating the terms of the document. It resembles the practices applying in many countries with written constitutions, in which the judiciary is tasked with upholding the fundamental rules.
In India, the principle of rule of law is embodied in our Constitution and runs like a golden thread through Part III which guarantees certain Fundamental Rights to Indian citizens and even, non-citizens. In many ways, the Fundamental Rights trace their roots to the Magna Carta.
For example, Article 21 says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, and Article 14, the equality clause, says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 21 makes no explicit reference to the “due process of law” as was used in the Magna Carta. This is so because the American doctrine of “due process” had been rejected by the framers of the Indian Constitution at the time of its enactment. The fifth and fourteenth amendments to the American Constitution provide that life, liberty and property cannot be deprived without “due process of law.” This phrase, borrowed, from the Magna Carta, acquired a nuanced meaning in the American constitutional context, following years of judicial exposition.
Interestingly, in the Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary in favor of the feudal baronage, quite contrary to the spirit of judicial activism that is now attributed to the clause.
However, despite there being no textual support in the Constitution to the concept of “due process of law” it found a backdoor entry into Indian constitutional jurisprudence through Justice P.N. Bhagwati’s opinion in the Maneka Gandhicase, wherein it was held that the Constitution mandates “fair” procedure when rights are deprived.
In Maneka Gandhi, it was stated, “The law must therefore, now be taken to be well-settled that Art.21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of “personal liberty” and there is consequently no infringement of the Fundamental Right conferred by Art 21, such law insofar as it abridges or takes away any Fundamental Right under Article 19 would have to meet the challenge of that Article. This proposition can no longer be disputed after the decisions in R.C. Cooper’s case, Shambu Nath Sarkar’s case and HaradhanaSaha’s case. Now if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the Fundamental Rights conferred under Article 19 which may be applicable in a given situation ex hypothesi, it is also liable to be tested with reference to Article 14.”
Although the court would repeatedly hold in subsequent cases that the American standard of “due process” did not apply to the Indian Constitution, in reality the court would apply nothing less than due process standards to administrative and legislative authorities in its emphasis on “fair, just and reasonable” procedure. The ‘procedure established by law’ has thus come to acquire practically the same significance in India as the ‘due process of law’ clause in America. This is borne out by Krishna Iyer J.’s opinion in the Sunil Batra Case (AIR 1978 SC 1675) wherein he held that though the Constitution had no “due process” provision, yet after the Maneka Gandhi judgment the consequence was the same.
Thus, it can be said with certainty that constitutional “due process” is here to stay in India. The power of judicial review and recognition of ‘due process’ doctrine has in effect made the judiciary the pre-eminent and arguably the most powerful among the 3 organs of the State in India.
In Kesavananda Bharati and I.R. Coelho v State of Tamil Nadu, the Supreme Court held that ‘rule of law’ is a part of the basic structure of the Constitution with the consequence that it cannot be amended or altered or repealed by a constitutional amendment.
The equality clause combined with the ‘due process’ clause and the recognition of ‘rule of law’ as a basic structure of the constitution have emerged as bulwarks for citizens against arbitrariness and encroachment by the State into the realm of civil liberties protected in Part III of the Constitution. The flame of the Magna Carta continues to burn bright even today and its spirit continues to illumine the understanding and application of law in India and in constitutional democracies elsewhere.
Magna Carta and Parallel Indic \ Vedic Jurisprudence
ॐसंगच्छध्वंसंवदध्वं, संवोमनांसिजानताम्।
समानोमन्त्र: समिति: समानी, समानंमन: सहचित्तमेषाम्।
समानीवआकूति: समानाहृदयानिव: |
समानमस्तुवोमनोयथाव: सुसहासति || (Rigveda,10/191/2-3)
“May you all live in harmony, speak in one voice and let your minds be in harmony. May our purpose be the same; may we all be of one mind. In order for such unity to form, I offer a common prayer. May our intentions and aspirations be alike, so that a common objective unifies us all”.
This Rigvedic mantra emphasises the unity of minds to create healthy powerful organizations for prosperity and happiness of all and to promote fellow feelings and righteousness. This is the basis of all human rights. All are equal and share universal brotherhood for overall development of the society. Without distinction of superior and inferior, we are all brothers, growing up together for common prosperity. Concept which is emphasised here is of mutual assistance and co-operation for the development of the society.
Ancient Indian Jurisprudence has its origin in the concept of “Dharama”. The word Dharma is used to mean nyaya (Justice), what is right in a given circumstance, moral values of life, pious obligations of individuals, righteous conduct in every sphere of activity. Dharma is the law that maintains the cosmic order as well as the individual and social order. Dharma sustains human life in harmony with nature. When we follow dharma, we are in conformity with the law that sustains the universe.
There are several ancient texts that serves as source of “Dharma Shastras” Indic jurisprudence, some of these great texts are: four Vedas: Rig Veda, Yajur Veda, Atharva Veda and Sam Veda and Smritis, such as Yadnyawalk Smriti, Narad Smriti, Manu Smriti, etc. One thing is common in all the texts, that law applies to everyone: everyone is duty bound to fulfil their duties. By this principal even kings are duty bound for the wellbeing of their subjects and law applies to them equally. I would like to site one shloka from Manu Smriti, which orders that a king must be punished 1000 times, then that of a common man for similar crime.
कार्षापणंभवेदंड्योयत्रान्य: प्राकृतो जन:।
तत्र राजा भवेदंड्य: सहस्रमिती धारणा ।।
(Manusmriti 8-336)
There are multiple references to the “Dharma” and Jurisprudence in the Vedic texts. Let’s consider, “Magna Carta” in light of Kautilya’sArthaShastra, which is most recent source of Vedic administration and Governance. Most of the ideas echoed in Arthashastra are based on ancient Vedic texts such as four Vedas and Smritis.
Kautilya was the guide and philosopher to the emperor Chandragupta Maurya of the of Magadha. An ancient kingdom that covered most of the Indian subcontinent at around 300 BC. Chandragupta did not belong to a royal family and was a commoner. Chanakya did educate him in arts of leadership, politics and administration! Chanakya, literally overthrew the earlier rule Nanda, who was one of the most corrupt ruler in the history of India and established the Mauryan dynasty by making Chandragupta its emperor. Chankya and Chandrgupta were responsible for the successful fight which India gave to the Alexander the great!
After establishing Chandragupta as the emperor and protect the kingdom Chankya, an outstanding scholar wrote “ArthaShastra” an epic that cover broad verity of subjects from economic, strategy and administration at a very minute detail. Below is a brief comparison between Magna Carta and Arthashsrta to give readers a glimpse of the scope of ArthaShastra.
Comparative Variable | Magna Carta | Kautilya’sArthaShastra |
Origin | Magna Carta is an 800 years old manuscript., written in 1215 by the Barons as a practical solution to a political crisis. | Written by Chnakya in somewhere around 300 BC. On the basis of ancient Vedic jurisprudence! |
Size & Scope | In comparison with Arthashastra it has limited scope. Magna Carta has 63 clauses in it. | Very wide scope of application in comparison with Magna Carta. 15 books, 150 chapters, 180 sections and 6,000 slokas. |
Purpose ofExistence | MaMagna Carta did come into the existence due to efforts of Barron to restrict King John from abusing his powers. | Chanakya’s ArthaShastra laid down rules and regulations forresponsible administration of state. It’s basis in a creation of a fearless society, governed by values and principles. |
Relationshipbetween King and Laws | Everybody, including the king, was subject to the law. | Ultimate objective of any laws in the kingdom is not to benefit the king but to benefit itssubject. |
Role of the King in a State | Magna Carta established limitations of a king’s control over the subject and the subject’s resources. | King was expected to be a great warrior, a great statesman, a great philosopher and a kind God-fearing person. Hence, we see that Kautilya prescribed a form of administration, where the absolute monarchy will be fully justified.Kautilya also mentions that a king should have a council of ministers. According to him, ‘A single wheel does not move’. Hence, the king should employ the ministers and take their advice in state matters. |
Taxation | The army had been largely paid by the tax known as ‘scutage’- a payment made to the crown in place of providing knights for military service, and this was the focus of much baronial discontent. | Tax was to be collected just as a honey bee takes the juice from flowers. |
Binding Nature | Magna Carta was a political contract between the Barons and the King. | Chanakya’s Arthshastra is a guiding text, like that of modern legislations in the context of state administration. |
Disappearance | Magna Carta was all forgotten by the 16th Century | Principles laid down in the Arthshastra are still in use in the domestic contracts among the people. Though they are not directly linked with ArthaShastra. |
Relationship with the subject | Welfare of the subject was the subject’s responsibility, as its consent was seeked in Magna Carta | Welfare of the subject was the king’s responsibility. |
Global significance! | Magna Carta is considered as the basis of modern human rights framework! It’s been the | Arthashastra has indirectly influenced numerous policy makers. However, like many other gifts of Vedic civilization, it didn’t attain the importance, it should have! |