CONCEPT OF DHARMA IN MODERN LAW – Yato Dharma Tato Jaya

    Edited by: Vaani Garg

    INTRODUCTION

    Dharma, as a concept is less known and has had different meanings through different eras. It was considered as the order of the day during Ashoka’s era and dictated all actions of the state; the dharma as preached by the Buddhists and Hindus was a culmination of pre-existing concepts and principles. The notion of dharma as duty or propriety is found in India’s ancient legal and religious texts.

    In Hindu philosophy, justice, social harmony, and happiness requires that people live per dharma. The Dharmashastra is a record of these guidelines and rules. The available evidence suggests India once had a large collection of dharma related literature (sutras, shastras); four of the sutras survive and these are now referred to as Dharmasutras. Along with laws of Manu in Dharmasutras, exist parallel and different compendium of laws, such as the laws of Narada and other ancient scholars. These different and conflicting law books are neither exclusive nor do they supersede other sources of dharma in Hinduism. These Dharmasutras include instructions on the education of the young, their rites of passage, customs, religious rites and rituals, marital rights and obligations, death and ancestral rites, laws, and administration of justice, crimes, punishments, rules, and types of evidence, duties of a king, as well as morality.

    DHARMA IN MODERN LAW

    The struggle for independence was a struggle for basic rights and civil liberties that a human being should enjoy and the same was kept in mind while making The Constitution of India. Hindu law (Dharma) started to be codified according to the changes in outlook and lifestyles, as it was realized that the ancient way should yield to the realistic approach of life.

    The principles of natural law (Dharma) found its way into the constitution in the way of fundamental rights. Of course, these rights are not absolute that they too have certain restrictions. The right to equality, freedom of movement, and the most cherishable right to life are some of the fundamental rights provided. But, there is ample evidence from the history of the world to show the misuse of power, whether it been Hitler’s Nazi or the infamous Emergency imposed by Indira Gandhi, and what followed is enough to question the very spirit on which our constitution was founded.

    The judiciary gave a decision in Habeas Corpus case on a day truly referred to as ‘the black day of Indian legal history”, which further deterred the belief of people in the judiciary. In this decision, the personal liberties and fundamental rights were taken away arbitrarily and the Honourable Supreme Court in not so Honourable decision justified it for personal gains, but, soon after, the mistakes were started to be corrected.

    The fundamental rights were made absolute in famous I.C. Golaknath case, and later the doctrine of basic structure was propounded by the Honourable Supreme Court in His Highness Keshvananda Bharti case, the attitude changed from absolute to relative but law can never be static hence absolute, otherwise, it becomes vague and useless. The doctrine thus founded can be said to have the following features:

    • The supremacy of the Constitution;
    • Republican and Democratic form of Government;
    • Secular character of the Constitution;
    • Separation of powers between the legislature, executive and the judiciary, and
    • Federal character of the Constitution.

    EVOLVING CONCEPT OF DHARMA

    The concept of dharma has been used by various courts including the Supreme Court to arrive at decisions in many cases. One of the important cases is Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[1], which elaborately discusses the questions related to Dharma. ‘What is dharma?’, ‘Is Dharma the Same as Religion?’ And everyone answered every doubt. Dharma as said above is distinct from religion. Dharma even regulates the law today, through morality in and outside the courts as in the Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & ANR[2].

    In Dattatraya Govind Mahajan vs. State of Maharashtra[3], the court talks about the Dharma of the Constitution and the karma of adjudication. Dharma thought to be an orthodox area is used in the cases much unorthodox prima facie such as rights to transgenders. The courts have interpreted articles 25 and 26, in line with Dharma, they have said when the articles are read and religion means Dharma that is co-existence with the welfare of others, not an orthodox view.

    Further, the concept of dharma as said earlier is fully explored in Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[4], there is a comparison between the constitutional laws and Raja Dharma, the definition of dharma is tried to be clarified by using different verses from everywhere, ‘Dharma in context of Rajya only means law’ and Dharma is secular or maybe the most secular. The same view is held until now, by all the courts and is not disputed that Dharma is eternal bliss, which has seen many par and parcels of human life, mortals, but remained immortal.

    DHARMA IN JUDICIAL PRONOUNCEMENT

    The influence of Dharma and influence to the Indian legal system is evident prima facie from the logo of Supreme Court of India inscribing the words “Yato Dharma Tato Jaya”. Furthermore, the ancient scriptures of Mundaka Upanishad has been inscribed in Devanagari script “Satyameva Jayate” in which ‘Satyam’ means ‘truth’, ‘Jayate’ means ‘victory’ and together it means “Truth Alone Will Triumph”. Dharma means justice and the national emblem and currency notes in India have Satyamev Jayate and Chakra inspired by the Ashokan pillar at Sarnath, Varanasi. It has been a question of great relevance that the Apex Court has maintained to be secular though implementing principles of Dharmashastras and religious texts.

    Law is founded on Dharma and our Supreme Court is the highest organ of the Indian judiciary which is considered to be the guardian of the Constitution and guarantor of fundamental rights to its citizens. The Supreme Court has time and again remarked in its judgments that Dharma has been guiding conduct, morals, and laws on a varying degree. The concept of Dharma signifies regularity of order universally including religion, rights, and duties whereas present-day law is based on reasons and not on religious aspects. The concept of the welfare state, human rights, fundamental rights have their roots in Dharma which is inscribed in various religious texts known as Vedas, Smritis and Shrutis, altogether known as Dharmashastras. Dharma and law are closely related to each other, interwoven together which highlights the immortality character of Dharma after passing a test of time.

    There is no single word in English or any western language which can substitute Dharma. Nevertheless, many jurists and thinkers have tried to interpret Dharma but had come to the same conclusion or meaning as an inference of the definitions given by them irrespective of their different interpretations as it is very hard to define dharma.

    Law has its roots from Dharma and therefore dharma has acted as a powerful instrument for giving justice since time immemorial and providing reasons what is right and righteous and judgments which require to be given based on principles of natural justice.

    The principles of law are founded on many religious texts of “Dharma” knowingly or unknowingly influenced by the Hindu jurisprudence. According to a verse of Rigveda “Bahujana Hitaya , Bahujana Sukhaya is a Sanskrit shloka meaning “For the benefit of many and the happiness of many”. This concept or shloka truly relates to the concept of the utilitarian theory propounded by Jeremy Bentham in his theory which elucidates “the greatest happiness of greatest number”.[5]

    Moreover, when there are no codified statute laws the role of principles of morality based on natural law having its origin from the ancient texts of Dharmashastras and the concept of Dharma comes into force for giving rational judgments. In the judgment Ziyauddin Burhanuddin Bukari v Brijmohan Ram Das Mehra[6], the apex court held secularism in the realm of philosophy in utilitarian terms.

    The interpretation of Dharma has evolved and has been interpreted by the Supreme Court in many of its judgments. In Kesawananda Bharati v State of Kerala[7], S. R. Bommai v Union of India[8] and Maneka Gandhi v Union of India[9], the court held that secularism is the basic feature of the Indian Constitution.

    Justice P.N.Bhagwati and Justice Krishna Iyer held that the word “due process” is there in Article 21 though it is not expressly mentioned it is there impliedly. Hence, law as well as procedure depriving a person of his life or liberty must be just, fair and reasonable. If either law or process or both of them are not just, fair and reasonable then the deprivation will be unlawful.

    The above judgment by the judges was given based on fundamental principles of the natural law of modern times which is driven by the old concept of dharma in Hindu jurisprudence. They gave the justification to the criticism faced by court time and again for religious fundamentalism and the Supreme Court, in turn, answered to all the questions in their landmark judgment delivered so that the faith of people in justice is retained. In A.K. Kripak v Union of India[10], the Supreme Court observed that rules of natural justice aim to secure justice or to prevent the miscarriage of justice. These rules do not supplant the law of the land but supplement it. In Manohar Joshi case[11], the Supreme Court delivered judgment on Hinduism and Hindutwa which has been debated many times and has been receiving mixed reactions all over and held that:

    “Hinduism is not a religion but a way of life which incorporates values of life and respect for all religions. The moral code of conduct in every sphere of human activity evolved in this land from most ancient times, which interalia include secularism.”

    Moreover, this concept has been reiterated in Sridharan case. In Bommai’s case[12], it was held that speeches hurting or creating enmity among different sections of the society or different classes of the society on grounds of religion would have to face the fate of legal system of India and the precedent laid down in Manohar Joshi case was disregarded as it was a talk of corrupt practices under Section 123 of Representation of Peoples Act, 1951.

    All these judgments by both Supreme Court were swayed by the principles of dharma. Dharma thus has a great role to play in giving justification to judgments and establishing peace and harmony in the society. Even when many other politicians try to infringe on the basic feature of secularism, they have to face the music created by law and justice for social benefit, development, and prosperity.

    Many a time the judges quote their obiter dicta, judicial dicta, obiter ex post facto, ratio decidendi getting inspired from Dharmashastra and other ancient legal texts and thoughts in the same words or reframing or remolding the words coming to the same meaning like the principles laid down in holy Bhagwad Gita which reads: “As a man himself sows, so he reaps; no man inherits the good or evil act of another man, the fruit is of the same quality as the action”[13] and many times used in ‘Qui Facit Per Alium Facit Per Se’ meaning he who has done the act through others is deemed to have done by himself.

    Furthermore, the civil laws on marriages, divorce, maintenance, dowry, etc are completely driven according to religion and rituals prescribed by the society or religious texts and are decided to take into account all the aspect of human life that is why our preamble states that justice should be in all sense political social and economic.

    The dharma has a great role to play in the Supreme Court judgments as the basis of laws are derived from it and Supreme Court is the guardian of our Constitution and guarantor of our rights and the fundamental rights derived from Magna Carta etc having relevance to the text in Dharmashastras as taught by sir William “Justice Delayed Is Justice Denied” and has continued to guide our dharma. The word enshrined in Magna Carta is “To none shall we delay, to none shall we deny, to none shall we sell justice” and what guided by Bhisma Pitamah that dharma helps in establishing justice and maintaining a peaceful and harmonious environment in the society. Dharma acts as an informal means of social control even in the present day.

    The way the Supreme Court reiterates the culture of India and the interpretation of Dharma in secular terms is commendable.  It reflects the true form of liberal democracy and helps to promote national integrity and the concept of ‘Sarva Dharma Sambhaav’.  Rituals are not a religion, but it is our fundamental duty to protect the rich heritage of our composite culture and the Supreme Court has always tried to strike a balance following the doctrine of harmonious construction.

    The right to pray or right to enter religious institutions or some cases relating to the present jallikattu or sensitive issue in Ismail case has been dealt with great influence to the dharma Jurisprudence by the High Court and Supreme Court.  It sets an example and reiterates the principle stated by Roscoe Pound that ‘Law must be static, but it should not stand still’.  Law is dynamic and there should not be any cultural lag. A greater interest of society must be taken into account upholding the utilitarian principle and democratic value.

    CONCLUSION

    Dharma signifies regularity of order universally accepted, it includes religion, duty, and inseparable of a quality or an order, whereas present-day law is based on reasons and does include religious aspects. It is a duty-based concept, however, the present law focuses on rights rather than duties. It in itself included morals, ethics, and righteous conduct of a man but the present system does not recognize the moral or ethical values and rather than conduct or motive, it now focuses on the act and the consequences.

    Further, Dharma pre-supposes a supernatural and binds together by the fear of the same supernatural but on the other hand, the law is based on reasonableness and binds through legal sanctions given by courts (human). Law in the modern sense is confined to rights, legal duties, etc. And not with righteous conduct and hence, in particular, whereas Dharma is all-pervasive and universal. The law presupposes man’s idea of ‘what ought to be’ and is based on reasonableness.

    Dharma and law as seen above may seem to be in contrast, but the ideology behind them is the same. At large, the law is a part of Dharma without disharmony and they constitute a single integrated whole. Dharma on one hand is taken to be religious, but it is not so and the same has been approved by the Honourable Supreme Court in many cases as pointed in the above sections. Dharma has been and is guiding our conduct, morals, and laws in varying degrees. One may not find any relation between the two on the face but on deep analysis, both are an interrelated integrated whole. ‘Dharma’ is one of the many sources of modern law and is shaping society. Hence, it can be said that ‘dharma’ and law are closely related and interwoven. Dharma by passing the test of time has shown its eternal character.


    [1] AIR 1996 SC 1765.

    [2] AIR 1995 SC 1236.

    [3] AIR 1977 SC 915.

    [4] AIR 1996 SC 1765.

    [5] UNDERSTANDING JURISPRUDENCE: INTRODUCTION TO LEGAL THEORY, RAYMOND WACKS Pg 60.

    [6] AIR 1975 SC 1778.

    [7] (1973) 4 SCC 225.

    [8] AIR 1994 SC 1918.

    [9] AIR 1978 SC 597.

    [10] AIR 1970 SC 150.

    [11] AIR 1996 SC 796.

    [12] Supra note 8.

    [13] Mbh. Xii. 291. 22.