JURISPRUDENCE

IDEA OF ‘DHARMA’ IN INDIA’S PRESENT LEGAL SYSTEM

SUBMITTED BY: SUBMITTED TO:

AVINASH KUMAR DR. RABINDRA PATHAK

SEM. V ‘A’ ASSISTANT PROFESSOR

ROLL 862 DEPARTMENT OF LAW

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI
 TABLE OF CONTENTS

Introduction 3
The concept of ‘Dharma’ 4
What is ‘Justice’. 5
Dharma and Constitution 5
Conclusion 7

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 “start simply everyday by asking yourself, "what is the dharma today? what should I do?
what is right? what does the universe want from me?"

- Frederick Lenz

INTRODUCTION

Dharma is considered to be supreme of moral for any human being and defines the conducts
of a virtuous man, his duties and conduct towards his religion. It is the nearest to the modern
day concept of natural law, and aims towards the welfare of society as a whole. It includes
every thing that is just, right, and moral. It finds its earliest mention in the rig veda and is
derived from the vedic concept of Rita, meaning ‘ a straight line’, and refers to the Natural law,
signifying moral laws based on righteousness. Therefore, anything which is right, just, and
moral it is Dharma.

Also, the later Hindu texts like the Upanishads refined the concept of Dharma in a more
moralistic manner. As it was during the evolution of nation-states, Dharma evolved in a more
legalistic meaning. Ancient codes like the Manusmriti transformed Dharma as a duty based
legal system, defining the duties of individual towards other member of the society and is
sometimes roughly defined as “right possessed by every man”. As per the “Puranas”, people’s
actions in the ancient times was governed by their deeds or their “Karmas”, and believed that
their karma is their Dharma. This can be found be found in the ancient text of Mahabharata,
where Yudhishthira was also known as “Dharamraj”.

According to Madhavacharya, “It is most difficult to define Dharma. Dharma has been
explained to be that which helps the upliftment of living beings. Therefore, that which ensures
welfare of living beings is surely Dharma. The learned Rishis have declared that which sustains
is Dharma”.

Thus the concept of Dharma evolved with time, expanding its meaning and scope as a result it
is now associated with the ideals of law and justice, and is how we understand the concept
today.

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The concept of ‘Dharma’
The term ‘Dharma’, similar to many other Sanskritic terms, lacks an exact English translation.
However, the term has many English equivalency, oweing to many of the ancient Hindu
religious texts and digests, like “truth”, “moral obligations”, the term dharma in its descriptive
sense means ‘correctmess’1. The term dharma is derived from yet another Sanskrit term ‘dhr’,
meaning ‘to sustain, to uphold, to sustain, to maintain’. The ancient concept of dharman, ie.
‘cosmic ordinance’ was closely related to rta, which was an impersonal law, however, dharman
characterized those laws which maintained the cosmic order2. The Hindu religion puts huge
emphasis on individual’s practical morality3.

The ancient authors on dharma texts saw it as a way of life and not as a religious concept,
which directed the individual’s actions as a member of the society as well as his actions in his
personal realm, it also provided the goals for human existence.

Dharma is the driving force of nature which looks after nearness, and keeps up with the
progression and structures the cosmic life from the very beginning. It catalyzes everything
which is considered helpful and improvement, and unsettles everything that is against it.4

The Hindu epic of Mahabharata contains an elaborate discussion on the meaning of the term
‘Dharma’, as it is contained in the Santiparva of the epic, a discussion where Yudhishthira
asked Bhishma regarding the nature and scope of the term, Bhishma replied saying, “It is most
difficult to define Dharma. Dharma has been explained to be what which helps the upliftment
of living beings. Therefore, that which ensures the welfare of living beings is surely Dharma.
The learned rishis have declared that what sustains this universe is Dharma.”5. Therefore,
Dharma can be something morally correct and is for the betterment of the human beings.

1
K. Krishna Murthy, Dharma - Its Etymology, TIBET J, 84-87 (1996).
2
Hukum Chand Patyal, The term Dharma and its scope, BULLETIN OF DECCAN COLLEGE PG AND
RESEARCH INST., 157- 158 (1994).
3
Daniel H. H. Ingallaas, Dharma and Moksha, 7 PHILOSOPHY EAST & WEST, 41- 43 (1957).
4
Raja Rajendralala, Kamandika Nitisara, (Mitra Sisirkumar) (2008).
5
Kisari Mohan Ganguli, The Mahabharata: Santi Parva, Sacred-Texts (2004), http://www.Sacred-
texts.com/hin/m12/index.htm.

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What is ‘Justice’.
It can be said that the ‘systematic’ and/or the ‘programmatic’, political and moral philosophy
began in Plato’s Republic6, by asking the question “What is Justice?”, as per the contemporary
theories, justice is overwhelming. According to John Rawl, “Justice is the first virtue of social
institutions, as truth is of systems of thought.”7.

The notion of justice is very broad and is based on the concept of fairness, ethics, rationality,
religion, and law and it occupies a central point both in ethics, and in legal -political
philosophy8. In general, the term ‘justice’ is used indistinguishably to mean rightness. Aristotle
differentiated ‘universal justice’ corresponding to virtue as a whole, and ‘particular justice’
having a narrower scope9. But he also noted that when justice was always seen in relation to
other individual when seen in ‘complete ‘virtue’. In other words, if justice is to be identified
with morality as such, it must be morality in the sense of ‘what we owe to each other’, i.e our
duty towards each other10.

Justice in ancient Indian texts, was a human expression of a wider universal principle of nature
and if man was entirely true to nature; his actions would be spontaneously just and fair. Man
experiences justice in three major types, moral justice as in equality, social justice, and legal
justice.11 It is the burden of justice to provide ‘nyaya’ whenever ‘Dharma’ is abused, ie. it
provides for punishment to those who disrupt ‘Dharma’ and follow the path of ‘Adharma’.12

Dharma and Constitution

India’s fight for freedom was in reality the fight for basic rights and needs, which one being a
human should be entitled to enjoy. Post independence, the same was kept in mind while
drafting the Indian Constitution, it was realized that the concept of Dharma should be
understood in such a matter relating to the problems of modern times and be modified in such
a way that it suits the need of the modern times and still be effective as it used to be earlier13.

6
Eric Heinz, The concept of Injustice, Routledge, Queen Mary School of Law Legal Studies, SSRN (10 April
2012, 2:53 PM) https://ssrn.com/abstract=2039267.
7
John Rawl, A Theory of justice 3 (Oxford University Press 1999)
8
Miller & David, Justice, STANFORD ENCYCLOPEDIA OF PHIL. (Sep 21, 2017),
https://plato.stanford.edu/archives/fall2017/entries/justice/
9
Aristotle, Nicomachean Ethics, Book V, ch. 1–2
10
Supra note 8.
11
Suparswa Chakraborty, Judiciary in ancient india, IILS BLOG, https://www.iilsindia.com/blogs/judiciary-in-
ancient-india/.
12
Ibid.
13
Ambujam v. T.S. Ramaswamy, AIR 1973 Delhi 46 (India).

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Therefore, post-independence, the Indian constitution was drafted on the basis of supreme law
od Dharma, the rule of law.

Art. 13 of the Indian constitution strictly provides for the nullification or considers such laws
void which when passed are in derogation with the Fundamental rights provided under part III
of the constitution. Therefore, the laws passed after the inception of the Constitution, when not
in accordance with the provisions of the Fundamental Rights, they will be expressly declared
void, as stated by the Clause (2) of the said article. The same is provided by the concept of
Dharma which states for the supremacy of the rule of law, bounding even the king to acts as
per Dharma. The rule of sovereignty too belongs to the concept of Dharma, and not to the king.
Thus, the concept of Dharma is indifferent from the modern day concept of rule of law which
provides that all the authorities of the State are subordinate to the law of the land.

Furthermore, the concept of Dharma influenced the laying down of Part III of the Indian
Constitution i.e. the Fundamental rights. Fundamental rights are those rights which are
available to a person by birth, and are indispensable by the individual. They are available to
every individual irrespective of their gender, religion, caste, race, or economic status14. It is the
outcome of Dharma, i.e. the highest duty of a person which required equal treatment, peace
and harmony for the society remains at peace. Fundamental rights are the codified version of
the rights that people enjoyed in the ancient times.15

Art. 21 of the Indian constitution provides for the Right to Life and personal liberty, and
provides that no person shall be deprived f his life and personal liberty except according to the
procedure established by law. The Indian judiciary has widened its scope by giving it broader
interpretations. It covers the right to live with human dignity and not mere animal existence16,
Right to livelihood17,Right to fair trial18 ,Right to free legal aid19.

Art. 21 covers every aspect of human life and provides for the safeguard of the same. It is also
worth noting that Dharma and religion are not the same, and provides for the safeguard against
the discrimination by the state on the ground of religion20.21 Art. 25 provides every individual
with the freedom of conscience and free profession, practice and propagation of religion.

14
INDIA CONST. art 14.
15
Leepakshi Rajpal , Dharma and the Indian Constitution, 5 CHRIST L.J. 57, 68 (2016).
16
Kharak Singh v. State of U.P., AIR 1963 SC 1295 (India).
17
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 (India).
18
Suk Das v. U.T. of Andhra Pradesh, 1986 AIR 991 (India).
19
Union of India v. Bhanudas, AIR 1978 SC 1027 (India).
20
INDIA CONST. art 15, cl 1.
21
Nain Sukh Das v. State of U.P., 1953 AIR 384 (India).

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Furthermore, Art. 26 provides freedom to all religious denominations to establish and maintain
religious institutions, manage its own religious affairs, acquire and administer movable or
immovable property. Art. 27, provides safeguard to individuals against forced payment of taxes
for the promotion of any particular religion.

Conclusion
There might appear sharp differences between Dharma and Law, however, both the two
concepts share the same roots. the present Indian legal system can be said to have been evolved
and inspired from Dharma. In essence, with its evolution from Dharma, the modern legal
system provides individuals with their own versions of Dharma. The modern statutes and
legislations i.e. the Constitution and other laws including judicial pronouncements have
somehow been inspired by Dharma. Thus it can be said that the modern legal system of India
is very mush related to the ancient Indian concept of Dharma.

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