OF

WELFARE STATE 23
cONCEPT

of the Law and the Paramountcy of the

Supremacy

Constitution

moderm democratic systems the Supremacy

could
In
legitimately be laimed only by the Law and in particular
fundamental law or the constitutionallaw. This a s p e c t
the
forth by Dr. Ambedkar, the main architect of
was brought
Constitution in the Constituent Assembly. He said:
Our
is a fundamental document. It is a
The Constitution
document which defines
the
position and power of the three
State - the executive, the judiciary and the
organs of the
of the executive and
legislature. It also defines the powers
the legislarure as against the citizens, as we
the powers of
with Fundamental Rights.
have done in our chapter dealing
of a constitution is not merely to create
In fact, the purpose
but to limit their authority, because,
the organs of the State
the authority of organs,
if no limitation was imposed upon
and complete oppression.
there will be complete tyranny
the executive
The legislature may be free to frame any law;
and the Supreme Court
may be free to take any decision;
of the law. It would
may be free to give any interpretation
result in utter chaos.'"19
This principle was reiterated by Justice Gajendra Gad-
kar, former Chief Justice of India in the 46th Report of the
Law Commission. It reads:
"The Commission believes that, in a democratic
country like India which is govemed by a written
Constitution, supremacy can be legitimately
claimed only by the Constitution. It is the Consti-
tution which is paramount, which is the law of
laws, which confers on Parliament and the State
Legislatures, the Executive and the Judiciary, their
respective powers, assigns to them their respective
functions, and prescribes limitations within which

The Framing of India's Constitution, Shiva Rao, A Study, p. 832.

O
Al QUAD AMa
 24 SEEDS OF MODERN PUBLIC LAW

the said powers and functions can be legitimately

discharged."20
The same was the position under the ancient Indian
ajadharma. The Supremacy of Dharma was declared
thus:

Law is the king of kings; Nothing is superior to

law; The law aided by the power of the king en-
ables the weak to prevail over the strong.2
The above verse, not only declares the Supremacy of
Law but also the principle of Rule of Law which aspect
shall be highlighted under that head. The Dharma was the
ultimate authority and the authority of the king was
only
penultimate.
Under modem systems of Government,
means the fundamental law
Constitution
of a State,containingwhich the
principles upon which the Govemment is founded,
providesfor division of the
the powers of each of the sovereign powers and specifies
division as also the manner in
which the powers are to be
means the law in
exercised. In other words, it
accordi.nce with which the
power is exercised. A perusal of the sovereign
harma would indicate that it provisions of Rajad-
They were the body of rules consists of all these elements.
sovereign power was required to beaccording to which the
On an
analysis exercised the
porated
of
all the
the
Kaurilya' s Arthashastra, bywhich Kings.
provisions of Rajadharma, Dr. J. incor-
Jolly said:
20. 46th
report of the Law
21. Commission, p. 3 para-7.
Brihadaramyaka Upanishad
nan, p. 170. 1-4-14; The
Principal Upanishads by Dr.
Radhakrish-

O REDMI NOTE 9 PRO

CO AIQUAD CAMERA
 OF
WELFARE STATE 25
cONCEPT
this is one of the most interesting
1 must say that
and valuableSanskrit works ever procured. As a
of Indian in-
faithful and life-like representation it is without
stiutions and modes of Govemment,
It throws a great deal of new light on
a parallel.
Indian Constitunonal History, and on the develop-
'22
of Indian Law.
ment
that there was no forum before
It is no doubt tnue
of Rajadhama by the King could be
which any violation
constituted the highest court,
questioned. The King himself
decision in conformity with
but he was required to give his
of the Court, who were required to
the views of the Judges
give their opinion without fear or favour. This aspect is
later.
dealt with in greater detail
Cooley has distinguished the features of the American
for en-
Written Constitution in which there is provision
forcement of constitutional provision through the judiciary,
enforce-
from that of Great Britain and pointed out that the
ment of constitutional law as against ordinary
law and the
term 'unconstitutional law' must vary in its meaning
Constitution of
having regard to the provisions of the a par
ticular State. Under the ancient Indian system as the King
had no legislative power as shown later the question of his
making any law in contravention of Rajadhama did not
arise. There is ample evidence that all the Kings were exer-
cising their sovereignty in accordance with Rajadharma.
Therefore, the Rajadharma was the Constitution for all the
States in the whole of India in the real sense of that expre-
ssion. Further, it was the fim view of ancient Indian
thinkers that 'Dharma (Law) without 'Rajadharma' for its
enforcement (through the instrumentality of the State)
would only be an illusion. Therefore, Rajadharma was re
garded as Paramount Dharma and we find the clearest ex-
pression of this basic aspect as early as in Mahabharatha.

22. Kautilya's Arthashasira, Translation, Dr. R. Shamasastry. Eighth Edition- p. 493.

26 SEEDS OF MODERN PUBLIC LAW
Shantiparva 63 24-25

7 : TYÍETTTT TTT Ttfafr darrgfT

"All Dhamas are merged in Rajadharma and it is

therefore the Supreme Dharma."
These aspects were restated by Dr. S. Radhakrishnan
in the Constituent Assembly while speaking in support of
the Objectives Resolution moved by Jawaharlal Nehru. He

said
Dhamam Kshatrasya Kshatram Dharma, righte-
ousness is the king of kings. It
is the ruler of both
It is the
the peopleand the rulers themselves.
have asserted."
sOvereignty of the law we

has re-
Thus supremacy of Dharma and Rajadharma
Constitutional Supremacy which
emerged in the form of
Democratic State.2
fom the foundation of our

Coronation Oath
Under Rajadharma, a King could assume office only
after he underwent the prescribed Coronation ceremony.

Aitareya Brahmana prescribed elaborate rites called

Aindra Mahabhiseka' to be observed before the actual
coronation of the incumbent to the royal office. The
Coronation Samskara was a condition precedent for recog-
nition of an individual as the King and for his securing
Dhamic sanction for discharging the functions of the
office. Coronation Samskara at which the King designate
was required to take a oath that he would discharge his
function as a King in accordance with Dharma for the
welfare of the people served the purpose of appraising the
individual about the duties and responsibilities required to
be perfomed or discharged after entering the office. It was

i v a Rab, The Framing of Indian Constitution, Vol. II, pp. 11-18, at 15.
 OF WELFARE STATE
ONEPT O
27
the self (Arma) of an individual. to constantly
to
call and guide
responsibilities and inspire
himself of the
emindh i m s e l f
proceed in the right directionin the
ways
to
him
scharge of his functions. In order to commit the king to
harge of
duties satisfactorily the principle of
his
oath to hin at the time of his coronation
discharge
an
iministering
practice.
Shanthi Parva 59-106-10R refers to an oath
was in
to king Vainya at the time of his
dministered
adn
by sages

c o r o n a t i o n .

oath by mind and words as follows:

You take
I shall protect
the world considering it as equiva-
I shall act fearlessly and
lent to the Creator,
Dharma in accordance with
observe the whole of
to my own sweet
Dandaniti and not according
will. 2 4

to take oath before

This requirement of Rajadharma
was universally observed by
2ssuming office of the King
the office of Kingship and
all the persons before assuming
the princely states until they
this practice continued even in
abolished on the c o m m e n c e m e n t of
the Constitution.
were
the Palace
According the information fumished by
to
taken in Kannada
Office at Mysore, the oath that was being
after the formal coronation
cere-
by the rulers of Mysore,
mony, rendered into English ieads:
"I am office as the Maharaja of Mysore
assuming of the
for securing the welfare of all the subjects
realm without any discrimination, punishing the
wicked, safeguarding the good, protectin8

24. Panikkar, ldeas of Sovereignty. p. 31.

 SEEDS OF MODERNI
28 PUBLIC LAW
Dharma, in order to provide happiness and Dran
perin to the subjecis: I shall maintain the defence
forces and protect the subDjects against external at.
wicked aggressors."
tack and punish the
Panikkar opines that the coronatior was a Diksh
a
dedication and a king bearing the crown became a v
ie. a person devoting his life to a cause It is a matter of
of Mysore who ruled the
recorded history that Maharajas
centuries were true to their oath. This iis
State for over five
also the position in several other States like Travancore

Cochin, Baroda, Gwalior etc. Utility of the oaths is recog

159 and other Articles which
nised in Articles 60, 69,
Vice-President, Govrnor, Ministers and
require President,
and Supreme Court to take oath
Judges of High Court would abide by the Consti
before assuming office that they
stress was laid on the imparting
tution and the Laws. Great
branches of leaming and a
of education in all important
were prescribed.26 Further
regular time table and syllabus character and discipline
was given to the
great importance
on the part of the Kings.
He was required to cultivate good
hours of work and their
character and discipline. Even the
and administrative
allotment for the discharge of judicial
advised to avoid all the
functions were prescribed. He was
vices and to be of pure character. It
is needless to state that
of Kings by
the character and discipline insisted in respect
the ancient Rajadharma applies with equal force to all per-
sons who come to exercise political
and administrative
the Government, if the people
power under any system of
are to be really benefitted. Without this
in-built traits, all
the extemal constitutional and legal checks would be less
effective though their importance cannot in any way be
minimised.

25. lbid pp. 35-36.

26. Arthashastra, pp. 9- 10,
Kamandakeeya Nitisara, 2-1-15
 OF WELFARE STATE 29
CONCEPT

Separation of Powers

Universally all Govemmental powers are classified

into three Executive, Legislative and Judicial. The function
of the legislature is to legislate, of the executive to execute
(the law) and of the judiciary to adjudicate (the disputes)
not only between two individuals but also between indivi
dual and the State. This is essential for the successful work-
ing of the Government, for, concentration of power in the
hands of one individual or even body of persons leads to
despotism. Therefore, the doctrine of separation of the
three powers and vesting it in different authorities is
regarded as essential in a democrate welfare State system.
The underlying principle is that persons entrusted with
pOwer in any one of those branches shall not be permitted
to encroach upon the powers confided to the others, and
that each shall by the law of its creation be limited to the
exercise of the powers appropriate to its own department
and no other. The vitality and the importance of the doc-
trine of separation of powers lies not in any rigid separation
of functions, but on a working hypothesis i.e., in the basic
differentiation of the three functions of law-making, ad-
ministration and adjudication. By far the most important
aspect of separation of powers is judicial independence
from administrative direction, and that is perhaps the only
aspect of the doctrine on which all democracies concur.27
Under the ancient Indian system also we find that the
importance of doctrine of separation of powers had been
conceived and evolved. As far as law was concerned, fun-
damental principles of law were to be found in the Vedas,
and elaborate provisions and systematic divisions of law
were incorporated in the Smritis. Custom or usage not in-
Consistent with the fundamental principle of Dharma had.

also the force of law.

21.
Freidman, Law in a Changing Society, p. 279.
 30 SEEDS OF MODERN PUBLIC
LAV
The ancient Dharmasastras declared that Dhar.
which included the 'law' was binding on the ing. arm.
ding to Rajadharma, the king was given the power onl AccO
enforce the law. Dharmasastras did not confer on or
nise any legislative power in the king. This is the ecog
mos
important and distinguishing aspect of the concept
kingship in India.

King not to legislate

Apart from not recognising the power to make law i
the king. Dharmasastras positively ordained that the kin
shall not legislate.
Katyayana 45:

TF4TFATTHTRUT TT T4ttUT FTE

E74tT TUFYYT4ETI

'A king should decide causes according

to rules of
Shastras. In the absence of a provision in the texts
he should follow the usages.""
'King should never actaccording to his own fiat.
Such an action on the part of the King causes
danger to him and brings ruin to the people."28
K.M. Panikkar fol-
This position is explained by as

lows:
The Hindu conception of kingshipit would
was,
be seen, as the am of Dharma, the unchanging
law, the upholder of social order, a limb of the so-
cial organism. The king had not the right of
changing the laws.''29

28. P.V. Kane, Katyayana Smriti.

29. ldeas of Sovereignty pp. 38-43.
 STATE
NCEPT OF WELFARE 31
Katyayana-42 recognised the power to issue a
jasashana and declare any usage contrary to Shruti or
invalid. It reads:
riti

The king could declare a usage invalid if it contra-

of law and on such declaration
-ned the superior source
overniled by royal command.
age stands
Manu-VI1-13, provided, the king had the power to
Royal edicts (Rajasashana). This was similar to make
sue which power the kings
les for enforcement of the law,
the
uld use for supplementing the law without violating
sources of law. Analysing
this situation Robert
perior
ingat observes:

Because of the large sphere reserved for Dharma,

the king was limited very
the legisiative activity of
remain a vast field in
seriously, but there did
The majority of the topics
which it might operate.
within what call adminis-
we would
which come

trative lavw fell under royal authority.*30

as to the types of
Sukraniti gives several illustrations issue.
was competent to
oyal edicts which a king
Publication of Royal edicts
necessary
a
condition to bringing
Publicity as

Kajashas ana into force was

also laid down by Sukra.
Sukraniti, 1.625-628:

30. Classical Law, p. 230.

FIM.
 32 SEEDS OF
MODERN PUBLIC
LAW
Rajashasana should be proclaimed to the subjects hu
the beating of drums. It should be written down
and di
played wherever four roads meet. It should contain a decla.
ration that breaches of the orders under Rajashasana
would
entail punishment by levy of heavy fines.3
The above rules of Sukra show that the
importance of
publicising an order required to be observed by the people
was emphasised as one of the basic
into force. This is a recognised
requirements to bring it
modem
principle according to
jurisprudence2. Kautilya prescribed the form and
procedure for issuing a Rajashasana. As evidence regard-
ing the types of provision which were being made through
Rajashasana and the formality in promulgating it, we have
the charter of Vishnu Sena. The longest ancient
royal edict
so far recovered is one issued
by King Vishnu Sena.33 He
was a Lohata king in Gujarat (Kathiawar). It is dated 5th
day of the bright half of the month of Shravana in Vikrama
Saka 649 coresponding to 592 A.D. It is published in Epi-
graphica Indica Vol. XXX with a covering article by D.C.
Sircar. It throws light on the scope of Rajashasana, its lan-
guage and manner of authentication. The important provi-
sions of the Shasana, which contains 72 sections or rules,
are given here.
i) Property shall not be confiscated by royal officials
disregarding the claims of heirs of the deceased.
(i) No person should be apprehended on mere suspi-
cion.
(iii) Wife shall not be apprehended for the offence
committed by the husband.
(iv) A case should be heard in the presence of both the
parties.

31. Sukranitisara, Edited by Gustav Oppert (1882).

32. (a) State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722.
(b) R. Narayana Reddy v. State ofA.P., (SLR 1969 AP 736).
(c) Sitaram v. Speaker ofHaryana Vidhana Sabha, (SLR 1972 P&H 756).
33. Epigrafica Indica Vol. XXX. Pp. 163-180.
 WELFARE STATE
cONCEPT OF 33
Tnhabitants of a village shall not be forced to sup-
ply beds, couches, boiled rice to the visiting royal
officers.
(vi) Only a proper complaunt, and not mere wailing, is
accepted by a court.

(vii) Cultivators and milkmen shall not be forced to

render free labour.
(vii) A defendant, engaged in work, shall not be sum
moned to be personally present in a court unless
he was charged of a criminal offence.
(ix) Movement of a defendant, who had furnished
security, should not be restricted.
() A fine of two and one-fourth silver coin is
sable for not being present before the impo-
having been summoned thrice.
court after
(xi) A Lekhaka (scribe) of a court should be fined for
being absent during the working hours of the
Court.
(xii) A fine of 6/4 silver coins is
offence of using counterfeit imposable for the
coins.
(xii) A winning party in a
boundary
granted a written declaration. dispute should be
(xiv) The fine for the offence of
coins. defamation is 6/4 Ssilver
(xv) The fine for
illegal
distillation of liquor is 5 silver
coins, but only 21/2 silver coins for first offence.
(xvi) Tax for
only 1/4, manufacturing
if it is meant for
oil is 3 silver coins, but
xvii) Merchants religious purposes.
going outside
exit-tax, but no entry taxtheiscountry should pay
Coming in. payable by those
wyCrossing
the i
fare for full boat is 12 silver coins but
a
goodsin it were
meant for
poses, the fare is religious pur-
only 1/ silver coins.

CO REDMI NOTE
 34 SEEDS OF MODERN PUBLIC
LAW
(xix) Taxes at varying rates were prescribed on tre
port of merchandise. But no tax on goods
meant
for mariages could be levied. However, a ma
age procession crossing the border of the
had to pay 12 silver coins. country
(xx) Blacksmiths, carpenters, barbers, potters etc.,
could be requisitioned by the officers of the kin
for compulsory labour.
The variety of subjects covered by as well as the con.
tents of the provisions found in the above charter give a
vivid pictrure of the wide scope and nature of the king's
subordinate legislative powers. This could be compared
with the subordinate or delegated powers conferred on
designated authority under modern laws to make rules,
regulations and orders.
Apart from the fact that the above Shasana is the
longest of the Rajashasanas so far recovered, it is unique in
its features as it covers varying topics bearing on legal pro-
cedure before courts, tax on movement and sale of goods
including imports and exports, and so on. It also gives a
clear indication of the scope and contents of a Rajashasana.
The Lekhaka of the above document is recorded to be one
Bhaddaka, an officer of the department of war and peace
the
(Sandhi vigraha adhikarana adhikriti). The recording of
name of the Lekhaka was also to make it a valid
prescribed
document. It is dated and signed by King Vishnu Sena him-
it
self. This 6th century charter (Rajashasana) shows that
was written and authenticated in accordance with the pro-
cedure prescribed by Kautilya.
King to decide in certain cases:

Pitamaha vide Smriti Chandrika Ch. II, p. 58

cONCEPT OF WELFARE STATE
35
In cases where no
principle of law is
found in the
Shruti, Smritis or custom, the king should decide
according to his conscience (Br.
P.387-2 is simi-
lar).
The above provision shows that in the
absence of law
on any point the king could give decision
according to his
best of judgment having due regard to all the facts and
cir
cumstances ot the case. 1nis Was part of judicial power and
it is similar to the principle in the modem law which
autho
rises the courts to decide according to
justice,
good conscience in matters not covered by equity
and
provision of law. any specific

Parishad to formulate new law:

The Shruti, the Smritis, the Puranas and customs or us-
age were the principal source of law. But there could bea
specific situation in respect of
which there was no
sion in any of these four sources of law and provi-
therefore the
creation of a new provision of law might become in
evitable. To deal with such cases, the
declaration of new laws was procedure for the
prescribed.
Manu XII-II

Three persons each one of whom knows one

of
the three
principal Vedas, a logician, a Mimam-
saka, one who knows the Nirukta, one who recites
(the Institutes of) the sacred law, and three men
belonging to the first three order shall constitute a
Parishat (assembly) consisting in all of atleast ten
members who are competent
provision of law. "34
to lay down a new

The first three order meant a student-Bachelor (Bramachari), a house-holdes

(Grihasta) and a hermit (Vanaprasta).
 36 SEEDS OF MODERN PUBLIC
LAW
As far as the judicial power was concemed, the kina
was constituted as the highest cour of appeal, but at lowng
levels there were courts not only those established by h
king called Royal Courts authorised to use the Royal seal
but also those established by the groups of people belong.
ing to a caste group or a vOcational group who decided dis
putes called people's courts. None of them were adminie
trative officers but were independent persons who wer
entrusted with the judicial power.
The role of the King as the highest court was distin-
guished from his executive power. While presiding over the
Court, the King was required to wear a simple dress and
was required to enter the Dharmadhikarana (the Cout
Hall) with a pleasant demeanour as against his entering the
Royal Sabha in his Royal Dress with Royal accompani.
ments. He was to be assisted by the Chief Justice and other
and the was required to give decision accor-
King
Judges
ding to the majority opinion of the Judges.
As far as executive power of the State was concermed,

King was its head but the provisions of Rajadharma re-

quired the King to act on the advice of Council of Minis-
ters.

Duties of Kings (State)

The provisions of Rajadharma incorporate innumera
have
ble functions to be discharged by the King. All these
been summed up in five fundamental duties. They were:
Atri Smriti-28

"To punish the wicked, to honour (protect) the

good, to enrich the treasury (Kosha) by Just
methods, to be impartial towards the litigants and
cONCEPT OF WELPARE STAT

protection of the
cOuntry. These are the five yajnas
(selfless duties) to be perfomed by a king
Importance attached to he peuple or ubjects of the
State was forcefully put im Shantiparva 36 15. It says:
Oh King, there are six types of fort (desert,
water, land, forest, mountaln and people), Mut the
people's fort is the most formidable"
Rajanitiratnakara, n the context of the coronation of a
prince, eulogises the people by calling them 'Praja Vinhnu'
(people are thhe incarnation ot Lord V inhnu). The welfare of
the people was declarecd to be the chlef concern of the State
and it was the duty of all the officers and servanN appoin
ted by the King to work for the happinews and welfare of
the people
Manu IX 324

The King, conducting himself always in confor

mity with Rajadharma, should command all his
servants to work for the welfare of his people."
Shantiparva 24 12-13

The King who receives one sixth of income and

still fails to protect the people becomes a sinner.

Sukraniti-1, 27-28
 38 SEEDS OF MODERN
PUBLIC LA
The highest Dharma of a King is
the
and welfare of the subjects and putting protection
wicked.
down the
The word 'protection' used in specifying the
King had very wide connotation. It ncluded defence ties of
of the
realm, administration of penal law as also law and Orda
The King was required to maintain pertect law and
order in
which citizens could move out without the fear of bein
attacked by anti-social elements. The test to find out the
existence of pertect law and order in a
country has been
specified in Shantiparva 67-32.

fxanyaqTATT Fafeiarqfem:
f
"If a State is being protected and uled by a
King
according to Dharnma, then a woman well dressed
and wearing valuable ornaments could move alone
in public streets without any fear.'"
What an ideal State of Rule of Law was conceived can
be appreciated.
Protection against arbitrary action of officers of the State
and others
Kamanadaka V 82-83 (p. 63-64)

"The subjects require protection against wicked

officers of the King, thieves, enemies of the King,
royal favourites (such as the queen, princes etc.)
and more than all, against the
greed of the king
himself. The king should ensure the people against
these fears.'"
CONCEPT OF WELFARE STATE 39
It is significant that the King was required to protect
his subiects not only from his own officers but also from
his oWn favourites including his queen and even himself.
Administration of Justice

Rajadharma gave great importance to the administra-

tion of justice and declared that it was the personal respon-
sibility of the King himself. He was required to
preside
over the highest court and render justice to the litigants as
well as punish the offenders in an impartial manner.
Justice according to Dharma:
Manu VII13

"The King should decide causes one after another

which fall under the eighteen titles,
the doctrine of the sacred law and localaccording
to
usage."
King to give decision according to opinion of Judges.
Narada (S.B.E.) 1-35.

Hufaufa: zaauJhHTa I

The King should try cases with great care and

tion and should give decision according to law cau-
and
adhering to the opinion of the Chief Justice.
King to impose penalty
Manu VIII 335: impartially:
fumisAra:
 40 SEEDS OF MODERN
PUBLIC LAW
The King should not leave an
unpunished, whatever may be his offender
him. relationship
Neither father, nor a teacher, nor a
with
nor mother, nor wife, nor a son, nor
friend,
priest should go unpunished for the
a
domestic
offence com-
mitted."
Chief Justice to preside in the absence of the King:

When a King is unable to preside over his

Court
(owing to preoccupation) the minister for justice
should take that seat."
These provisions required the King to administer
tice in an impartial manner, which was one of the
jus-
Five
Fundamental duties of the State.
Dury to restore stolen property or its value
Katyayana 816-817 (Also Shantiparva 74-10)

"The King should cause restoration of stolen prop-

erty to the owner. If it is not possible to restore the
same property he must pay the owner the price of
the stolen property.
I f the thief is caught, but the stolen property is not
recovered from him, either the thief must be made
to pay the price, if possible, or the king himself
must pay it."
cONCEPT OF
WELFARE STATE 41
The above nules are very significant. There are other
mles also bearing on this topic. The State could not avoid
responsibility on the ground that the offence was un-
its
that the payment of tax was
detected, which
me ans

arded as insurance against losses suffered by people on

account of theft or robbery.

Protection of the property of minors and women:

Manu VIlI 27:

aTHETafeas fiFi araKITSJUTFAq

"The King shall protect the inherited property of a

minor, until he retumed from his teacher's house
(Gurukula) or until he ceased to be a minor."
Protection of the helpless and the diseased
Shantiparva 36, 24-25:

The
"The King should look after the welfare
ogakshema) of the helpless, the aged, the blind,
the cripple, lunatics, widows, orphans, those suf-
fering from diseases and calamities, pregnant
women, by giving them food, lodging. clothing
and medicines
according to their needs."
Subsistence to wives of soldiers
Vasista commences Ch. XIX of his work saying that
the
the special
After
duty of a king is the protection of his subjects".
e r s to
refering to the
necessity for the king to engage men
fight in defence of the realm, he provides:
 42 SEEDS OF MODERN
PUBLIC LAW
Vasishta (S.B.E.) p. 98-20 (Ch. IX 20):

Their (soldiers') wives, who have n0 other means

of livelihood, shall be given subsistence (by the
King)."
All the works referred to above give a clear picture of
the many responsibilities entrusted to a king. The rightof
king to collect taxes was coupled with his responsibility to
protect the people, and his many duties in that context were
also specified.
Robert Lingat observes:
"Numerous texts (Boudh, 1.10.1; M.VII. 144 and
VII. 307,308; Yaj., 1.337; Nar., XVI 48) estab-
lish a strict corelation between the duty of protec-
tion incumbent upon the king and his subjects'
payment of tax to which they are assessed."35
Those mentioned earlier are some of the most impor.
tant duties towards the people, which the King had to dis-
charge. The Society of the concept of Dharma and Rajad-
harma, was duty based, similar to the one propounded by
Duguit. After making an appraisal of the system R.C.
Majumdar observes:
"In those days a man's status in society was looked
at not so much from the point of view of his
rights, as from that of his duty, which had moral
and religious sanction behind it; and it would have
created as much sensation in those days, if the
king had faijed in his duties, as would follow the
violation of people's rights in modern days."
The fear of public opinion, raising against a King who
disregarded his duties or disobeyed the mandate of

35. Robert Lingat, Classical Law, p. 213.

 STATE
cONCEPT
OF WELFARE 43
oLrm, was the guarantee for its observance. It is so even
der the Constitution as observed by the Supreme Court in
und
of Ghulam Sarwar to the effect that the safeguard
the c a s e
acainst the abuse of emergency power under the Constitu-
tion was the good sense of the executive but the more
effective one was strong public opinion.36 How public
opinion asserted when Dharma was disregarded by Raghu-
natha Rao who after assumed office as Ruler was found
guilty of murder by the Chief Justice and the elite threw
him out of office of Peshwa is recorded in 1774, to which I
shall refer when dealing with independence of judiciary.

Treasury or Finance:

The provisions of Rajadharma stressed the importance

of Kosha (Finance) and observed that as all the welfare ac-
tivities of the State depends upon it; the King should give
great attention for the augmenting of the finance[ of the
State and its proper spending for the benefit of the people.
The importance of the Finance was stressed by
Kautilya
(page 65). He said:

All undertakings depend upon finance (Kosha).

Hence foremost attention shall be paid to it."
Yajnavalkya, 327 provided that the King should take
care of the finances of the State by looking into all (matters
relating to) receipts and expenditure personally. Manu VI
136 laid down the taxation policy. It provided that '"let not
King cut his own root by levying no taxes nor the root
tne people by levying excessive taxes*". Manu VI 129
rOVided that the rates of taxes levied on the people must
Such as would not cause great hardship to the people. It

36.
Ghulam Sarwa Union
v.
of India, AIR 1967 SC 1335.