Briefly explain the concept of 'Dharma' as a

foundation of legal ordering in India thought in

the light of legislative & judicial perspective.
• Explain in detail the 'Concept of Dharma' and the 'Concept of Justice'
in Indian thoughts
• Define the concept of Dharma? Discuss various aspects of Dharma in
Indian thought with the help of examples.
• SN - Dharma in Indian thought
• "What is 'Dharma'? Discuss its impact on Indian Legal system as the
foundation of1egal Ordering in India."

Synopsis

• Introduction
• Ancient Concept
• What is Dharma?
• Dharma & Vedas
• KAUTILYA ARTHA SHASTRA
• Rule of Law and Dharma
• Dharma and Hinduism
• The Legal System in Pre-Colonial India
• Dharma and Justice
• Dharma and Social Justice
• Dharma and changing society
• Dharma – It’s impact on Indian Legal system as the foundation of
Legal Ordering in India
• Case Laws indicating the Evolving concept of Dharma
• Conclusion
Synopsis
Introduction
There are multiple source of Hincu Law inline other religious laws.

• Shruti – What is heard

• Smruti – that which is remembered
• Customs
• Legislations
• Judicial decisions
• Text books
• Principles of justice

Dharma is the concept that holds the people together. The word Dharma is
clearly derived from the root ‘Dhr’ (Sanskrit Language) – ‘to hold’ and its
etymological meaning is - the one which holds the world. It is eternal divine
law of the lord. It means well-being to the man. It leads to happiness and
immortality. It is truth. Thus, there is no perfect definition of dharma. There
is no equivalent word in English for Dharma. Dharma cam be generally
defined as a duty or righteousness. The four Vedas and 4 vedas and text of
Shruti are the basis of Dharma. Dharma is the Indian version of Natural Law
and how Indians perceived it in ancient society
It must be remembered that what is dharma in one circumstance maybe
adharma in another set of circumstance. Hence there is a change in Dharma.
Other religions like Islam, Zoroastrian, Christianity all lay stress on the
concept of dharma.
Ancient Concept

In ancient Indian society, law and Dharma were not distinct concepts. In
Dharma Shastras, Smritis and Arthashastra, the concept of justice, law and
religion were not distinguished and invariably justice was equated to Dharma
and vice-versa. The Mosaic Law of Israel considered law and justice as
inextricably inter-woven and justice' is considered as a distinct segment of
morality to which law must conform. The Roman legal system is known as
one of the most complex legal systems of all time. Roman society was deeply
marked by the religious element and strongly impregnated with morality, the
process creating favorable premises for a discrepancy between law (jus), divine
(fas) and moral norms (mos, mora).

What is Dharma?
The word Dharma is clearly derived from the root ‘Dhr’ (Sanskrit Language)
which denotes ‘upholding, supporting, nourishing and sustaining’. The
Sanskrit term Dharma signifies the underlying order in nature and human
life and behavior considered to be in accord with that order. Ethically, it
means ‘right way of living or ‘proper conduct’, especially in religious sense.

Dharma is translated as religion in English language. It can have three

different meanings

l. Obedience to the Law of God.

2. Kartavya or duty. For example — Rajdharma (duty of ruler), Grahstha

dharma (duty of a family man), Nari dharma (duty of a woman) and so on. A
man devoid of a sense of Dharma or duty is an animal because Dharma is the
rationality in a man which distinguishes him from other animals. In all other
matters such as food, sleep, fear, sex, etc. he is identical with a beast except
that he has been endowed with power to think and distinguish between good
and bad.

3. Dharma connotes essential characteristic features of a thing or object. For

example — Dharma of Fire (Agni) is to burn anything and everything without
discrimination. Similarly, the Dharma of water is to extinguish fire. This is
unchangeable and indisputable. To constitute Dharma, both noble motive
and action are required.

Manu has described the fourfold indices of Dharma,

l. Sruti (that which is heard),

2. Smriti (that which is remembered),

3. Sadachar (good conduct) and,

4. That which is pleasing to one’s conscience.

According to Manu’s conception Dharma is the complete blending of religion
morality and law. It may be stated that the Sadachar (good conduct) aspect of
Dharma corresponds to law which in modem context means a code of conduct
which regulates human behavior and mutual relations of the individuals and
with the state. According to the Code of Manu (constructed between 200 BC
and AD 200), the first legal code of Hindus enshrines both philosophy of life
and of law with special stress on morality, danda (punishment) and justice.
Justice is a moral state. Gandhiji observed: "My soul refuses to be satisfied so
long as it is a helpless witness of a single wrong."

Dharma is not the same as religion” has interpreted the word dharma as
having multiple meanings depending on the context in which its used;
including conduct, duty, right, justice, virtue, morality, religion, religious
merit, good work according to a right or rule, etc. Dharma provides principles
for the harmonious fulfilment of all aspects of life, namely the acquisition of
wealth and power (artha), fulfilment of desire (kama), and liberation (moksha).
Religion then is only the subset of dharma.

Dharma & Vedas

Dharma is a special attribute of man. Bereft of Dharma, man is equal to
animal. The Vedas are considered as the ‘first source of Dharma’. Dharma
constitutes the foundations of all affairs in the world. Everything in this world
is founded on Dharma and it is therefore, considered ‘Supreme’. Commandants
of Dharma like nature's laws, admit of no meddling. The ultimate truth of this
existence which is to be known and realized.

KAUTILYA ARTHA SHASTRA

According to KAUTILYA, ARTHASHASTRA, it is that, “It is necessary that every

rule must promote which is good to people. In the happiness of the subject
lies the king's happiness, in their welfare his welfare. What pleases himself,
the king shall not consider good but whatever pleases his subjects the king
shall consider good.”

This is conveyed in unequivocal terms by Bentham as: "The public good ought
to be the object of the legislator; general utility ought to be the foundation of
his reasoning. To know the true good of the community is what constitutes
the science of legislation, the art consists in finding the means to realize that
good".

Even according to HITOPADESHA PRASTAVIKA, “Dharma is a special

attribute of man. Bereft of dharma, man is equal to animal.”

Rule of Law and Dharma

It has been emphasized that those who exercise political power must wear the
hand glove of dharma and 'principles of dharma governs every sphere of
activity including governance of the country. The duty of the king was clearly
defined in Dharma Sastras and for violation, the king becomes unfit to rule
and Dharma Rajya means 'rule of law'. King respected by the people only if he
acted according to law (dharma). Rules of dharma is not alterable according
to whim and fancy of the king and it were essential that the exercise of political
power must be in conformity with dharma-an essential aspect of governance.
This is what is meant by 'rule of law' in the present day context. According to
Dr.S. Radhakrishnan: "Dharma righteousness is the king of kings. It is the
ruler of both the people and the ruler themselves. It is the sovereignty of the
law”. Dharma in Indian tradition also stands for law and morality and no state
can be devoid of law and morality. Dharma is right action; dharma or virtue
is conformity with the truth of things. Dharma protects those who protect it
and those who destroy it get destroyed and the entire concept of rule of law is
incorporated in Dharma. According to K.M. Panikkar, the king's coronation
ceremony is a diksha devoting his life to the cause (service of the people).
Support to the king depended on king conforming to dharma or justice.

Friedmann observed: "The tale of natural law is the search of mankind for
absolute justice and of its failure". Legal justice i.e., according to law has
several inadequacies and fails to meet, what and justice in truth. The efforts
are required to be made to induct more and more moral content in the law
and raise the level of legal justice to absolute justice standards.

Dharma and Hinduism

The fundamental truth of Hinduism are Brahma(God), Dharma
(righteousness, the path which is conformity with man’s inner and true nature
and leads him on to salvation in his own unique, though also subtly universal
way) and Karma (act accumulating merit or demerit according to the test of
Dharma).

Karma + the path of Dharma = Brahma or Moksha or salvation.

Man has to do Karma, and go along the path of Dharma and attain Brahma.
This attainment (or the ultimate goal of a man’s life) is called Moksha
(Salvation or liberation from the cycle of death and birth and all of the
suffering and limitation of worldly existence). Naturally till he attains Brahma
or Moksha he is governed by Dharmasastras, or laws which seek to guide him
in his Karma so that it may accord with Dharma and lead him on to Moksha
or Brahma. Inference can be drawn that the sources of Dharma or law can
never be manmade or king made law, but should be something eternal,
unalterable and all embracing as far as such sources can be gotten by moral
men. As Brahma is the author and regulator of Dharma, his words, the Vedas
(religious literatures containing holy or sacred eternal knowledge) are the
Supreme foundations of law and its ultimate source.

The Legal System in Pre-Colonial India

Before the advent of British rule in India, the legal system mainly embodied
customary, moral cum religious rules as ordained in the ancient Hindu
religious texts called the Dharmashastras. The source of Hindu philosophy or
the beliefs, values, thinking and the way of life of people living in India has its
roots in the revelation of the deity, the revelation itself being the outcome of
divine reason. This divine reason is not arbitary. Law is discoverable by
reason, because the will of god and human reason coincide. Earlier, the
philosophical knowledge was compiled by the sages or rishis who were also
repositories of the revelation. Later on, these religous teachings were written
and compiled in the form of texts by the sages. The primary source or the
bases of these texts were ‘Sruti’ literally meaning ‘that which is heard; and
‘Smriti’; literally meaning ‘that which is remembered’.

Dharma and Justice

Dharma, as Justice is the knowledge of existence as all knowledge leads to

truth. Existence, truth and knowledge are correlative as well as synonymous.
Dharma as justice is right observance of truth in conduct of life i.e. in thought,
word and deed. It then becomes a norm of good and virtuous life. Justice has
thus to satisfy the standard of truth in every way.

Existence leads to knowledge, rightness, reason and truth. Consciousness

leads to will, power, action etc. Annand leads to satisfaction, happiness,
peace, welfare etc.

Dharma is justice because it is the expression of Right, Truth, Existence etc.,

which also implies knowledge and virtue. Dharma as consciousness implies
will, desire, power and action for reformation and regulation of life. Dharma
as bliss implies real satisfaction- material as well as spiritual.

In ancient Indian society, law and dharma were not distinct concepts. In
Dharma Sastras, Smritis and Arthasastra, the concept of justice, law and
religion were not distinguished and invariably justice was equated to dharma
and vice-versa. The Mosaic Law of Israel considered law and justice as
inextricably inter-woven11 and justice' is considered as a distinct segment of
morality to which law must conform.

Stammler classified justice in two categories:

• Principles of respect

• principles of participation

Respect for human person and means of participation shall be ensured and
no one shall be subjected to arbitrary will of another and no member shall be
arbitrarily excluded from the legal community.

John Rawls proposed a general concept of justice:

All social primary goods-liberty and opportunity, Income and wealth, and the
basis of self-respect are to be distributed equally, unless an unequal
distribution of any or all of these goods is to the advantage of the least
favoured. To establish justice in the world is to destroy the bad and the evil,
to stop the strong exploiting the weak, to develop knowledge and welfare of
the people. Verily that which is justice is truth.
Krishna Iyer, J. in All India Judges’ Association v. Union of India, 1992, the
law is a means to an end and justice is that end.”

In Mohini Jain v. Stale of Karnataka, (1992), it was stated that, “A knowledge-

based society is basis to social justice. To serve mankind is service to God,
and thus concept of service becomes a national ideal.

Justice is to provide 'nyaya' whenever the Dharma is abused. It is awarded in

all fairness. That means punishment is awarded to those who deviate from
Dharma and follow ‘a Dharma'.!!

According to Equivalence Theory, justice is understood to be an attainment

through law. In other words, this theory advocates justice according to
positive law and no more. According to the Dependency Theory, although the
emphasis is on law as a means to attain the end of justice, it does not regard
them as synonymous. That means, the advocates of this theory do not
consider law and justice as one and the same as there may be situations of
unjust law. The third approach is an amalgamation of the above two theories
and it is argued that - justice is both the means and the end, and law is the
instrument to practice it. In other words, law is the practical manifestation of
abstract ideal of justice.

Dharma and Social Justice

Any government will have a strong basis for its survival, “if it is founded on
liberty and justice”. Justice under law without social justice, no longer has
any meaning or significance.

It is no doubt that people since times immemorial hoped for justice and its
survival at all times and 'justice' has been the watchword of all major social
and political reform movements. Endless and ceaseless efforts were made to
abolish injustice, tyranny and exploitation. In the common parlance justice is
equated with everything that is good, mercy, charity and truth and other
equivalent expressions. However, in the words of a Greek thinker
Thrasymachus, it cannot be defined as the interest of the stronger. Justice is
not an irrational idea and the search for it is an eternal quest.

Whatever is considered as 'just', according to a reasonable man is considered

as 'justice'. Gandhiji emphasized the need for establishing a 'just society'
which he considered; as a necessary ideal for India's survival as an
independent and vibrant nation' in his concept of Ram Rajya and Swarajya
which he elucidated as follows:

• Poorest shall have an effective voice in the making of the country;

• No distinction/existence of rich and the poor;
• All communities shall live in peace;
• No curse of untouchability or curse of intoxicating drugs or drinks; and
• Women shall enjoy the same rights as men.

Nehru highlighted the need for 'social justice', and "only through social
justice, chronic poverty in India will be solved...; ending of poverty, ignorance,
disease and inequality of opportunity to wipe every tear from every eye".

Dharma and changing society

Dharma does not change as such. It is the foundation but morality changes
as time & society changes. What is moral for one person is not moral for other
person. What is morally approved in 1940 is not approved in 2020 example
Sati, Dowry. What is disapproved in 2000 is approved in 2022 example live in
relationship, homosexuality.

Law tries to keep society within dotted lines but changes itself when it appears
to it that new lines are required to be drawn by the same society.

Example, On September 6th 2018 a five-judge Bench unanimously struck

down Section 377 of the Indian Penal Code, to the extent that it criminalised
same-sex relations between consenting adults. Also, the legislators tried to
control the ill-treatment of women by their husband or in-laws by inserting
section 498A in the IPC in the year 1983 but statistics revealed an alarming
increase in the number of suspicious deaths of women in the matrimonial
home, thereby promoting the lawmakers to insert two more provisions,
Section 304B in the IPC and Section 113B in the Indian Evidence Act, in the
year 1986. This was done to curb the rising incidence of Dowry Deaths by
making special provisions for prosecuting those accused of killing women for
dowry.

The ultimate aim of Dharma is always to provide justice.

In Maneka Gandhi v. Union of India, this judgment which marked the
paradigm shift towards ensuring individual dignity even in cases where the
right of a person is affected by a procedure established by law. The judgment
also reflected the principles of Dharma and ancient theories of justice of
Neethi and Nyaya. Judgment thereby also included substantial justice along
with procedural justice. Principles of Due process of Law of U.S Constitution,
was thereby interpreted to the Constitution, under Article 21.

Dharma – It’s impact on Indian Legal system as the foundation of Legal Ordering in India
The struggle for independence was the struggle for basic rights and civil
liberties that one as a basic human being should enjoy and the same was kept
in mind while making the Constitution of India. Hindu law started being
codified according to the changes in outlook and lifestyles as it was realized
that the ancient race should yield to the realistic approach of life.

PREAMBLE - The Preamble of the Indian Constitution clearly states that India
is secular in nature, and does not adhere to any particular religion, nor does
it have any religion of its own. State is above every religion and supreme duty
i.e. Dharma is above the State. Dharma is often related to humanity, and
since humanity is above all, Dharma is above all. Thus, being secular
inherently means that by not following any religion, we follow the supreme
authority i.e. Dharma. It means that India does not consider any one religion
or for that matter does not allow religion to interfere in decision making in
matters of the STATE. It also means that by not accepting any one religion as
supreme and considering itself as secular, it promises to safeguard every
religion that prevails in the country. According to the Supreme Court of India,
the definition of secularism with respect to all the religions is “Sarva Dharma
Sambhavana”, which means that the State has no religion and shall treat all
people of different religious groups equally.

FUNDAMENTAL RIGHTS - The principles of Natural Law, ‘Dharma’ found it’s

way into the Constitution in the way of fundamental rights. Dharma was
qualified as we all know was a duty based legal system but the current legal
system became a right based one. Of course, these rights and freedom that
come are not absolute and they too have certain restrictions. Right to
equality, freedom of movement and most cherished will, Right to life are some
of the fundamental rights provided. They are available to each and every
individual without any discrimination based on gender, religion, caste, race,
or economic status. It is the outcome of Dharma, i.e. the highest duty of a
person which involves treating everyone equally with peace and harmony so
that the society remains at peace. Fundamental rights are the codified version
of the rights that people enjoyed in the ancient times.

Article 15(1) of the constitution of India prevents state from discriminating

anybody on the ground of religion. It was also ordered by the hon'ble Supreme
Court in Nain sukh Das vs. State of U.P that the constitutional mandate to
the state not to discriminate on the ground of religion extends to political as
well as other rights.

Under the “Right to Freedom of Religion” from Article 25 to 28, various

provisions can be seen which again reinforce the ideal of secularism. Article
25 gives all persons in the country freedom of conscience and free profession,
practice and propagation of religion. Article 26 provides freedom to all
religious denominations to establish and maintain institutions for religious
purposes, manage its own religious affairs, acquire and administer movable
or immovable property. Under Article 27, no person can be compelled by the
goverment to pay taxes for promotion of any particular religion. In
Kesavanada Bharati v. State of Kerala?? and in Indira Neharu Gandhi v. Raj
Narain? the Supreme Court has observed that by secularism it is meant that
the State shall not discriminate against any citizen on the ground of religion
only and that the State shall have no religion of its own and all persons shall
be equally entitled to freedom of conscience and the right freely to profess,
practice and Propagate religion. Under Article 28, religious instruction is
banned from being given in educational institutions maintained wholly out of
state funds. Last but not the least, under Part 15 relating to conduct of
elections, Article 325 provides that no person can be ineligible for inclusion
in an electoral roll or can claim inclusion in a special roll on the grounds of
religion.

But, there are ample evidences from history of the world as well as from us to
show the misuse of power whether it has been the Hitler's Nazi or other
emergency imposed by Indira Gandhi and what followed is enough to question
the very spirit on which our Constitution was founded.

Article 368 – Amendment to Constitution – In the case of 'RajaDharma' , the

king could not just make any rules he would make decisions keeping in mind
the welfare of the people and his kingdom similarly even though article 368
of the Indian Constitution confers power on the Parliament to frame laws
relating any matter it does not constitute an arbitrary power as it can be
questioned in the Court of Law. Although there are several changes in the
procedure the principal till date remains the same.

In ancient India Dharma was considered as the complete Constitution of a

ancient Indian society. Now our Constitutionalism represents our Dharma
and justice which balances and harmonizes parliamentary democracy with
presidential form of government, preambular declaration of liberty equality
and fraternity with emergency powers and fundamental rights of individuals
with economic and social goals of directive principles of state policy. Thus,
Indian Constitution makes India a welfare State to enforce socio, economic
justice progressively. A Constitutionalism is the new incarnation of old
concept of Dharma which expresses our will and determination to uphold
justice in every walk of life of the Indian people.

Concept of dharma discusses ultimate reality as Sat, Chit, Ananda.

SAT - Sat means justice I.e. observance of truth in thought, word and deed.
I.e. practicing dharma in Vyavhar. Truth rejects formalism, superstition,
dogmatism and recommends change and reform for progressive realisation of
the goals of life by rising above false distinctions of caste, creed and colour.
CHIT - Chit means shakti or power. It is expressed as karma and Dandaniti.
State has the power of punishment.
ANAND - Anand i.e. satisfaction or fulfilment. For getting Ananda we are
required to purify our soul, i.e. freedom from bandage. The concept of human
freedom is considered as the glory of the western materialistic civilization and
culture and food stop the urge for freedom has led to enhancement of man's
power of control over nature and development of technology to give more
impetus satisfaction of one’s wants, to acquire and accumulate more property,
to provide more comforts and luxuries, to enlarge man’s contractual capacity,
propagation of natural rights and now human rights etc. Thus, under Hindu
jurisprudence concept of dharma as expressed as Ananda is the idea of
justice. Under Hindu jurisprudence dharma is the synthesis of law, religion
and morality.
Dharma as Shakti or Power - Karma and Dandaniti -
Justice as knowledge has power to work as well as to make men virtuos by
enlightenment. In it's retributive aspect it is power of punishment and
rewards which is necessary to maintain social order, peace and security. As
a matter of right, the State by its power of punishment is only enforcing the
law of karma as Dharma or justice which is also called Dandniti in ancient
India. Retribution punishment for vindication of law is thus an extension of
the principle of causation in nature and becomes the principle of natural
action.

Justice as power of Arth or Economic power -

It is also essential to realise the truth of material human existence by pursuit
of ‘Arth’ or material well being viz. Attainment of riches, material advantages,
wealth and all that covers commercial life , business affairs, work, prices , etc.
Arth in the sphere of law means plaint, action petition; in Politics it is the
interest of the state that is expedience.

The sources of economic justice or Arth are Economic activities, commerce

and agriculture, all of them were called ‘Varta’. It is said that when Varta is
destroyed this world is surely dead though it seems to breathe.

Arth for this Purpose, has been declared as the source of the whole world.
Wealth is important because lack of wealth is the root of all evils. All this
shows Justice has to maintain the balance between Spiritual and material
welfare. There should be harmonious development of Dharma and Arth. Our
Indian Constitution is also wedded to this Justice in every way. It aspires for
political, economic and social justice in fulfilment of the ideal of Arth of
ancient India. Our Upanishads also recommend enjoyment of worldly goods
without selfishness, greed and avarice.
Case Laws indicating the Evolving concept of Dharma
1. The concept of dharma or simply dharma has been used by various courts
in helping them to arrive at decisions even by the Honourable Supreme
Court in many cases. One of the important cases is Shri A.S. Narayana
Deekshitulu vs State Of Andhra Pradesh & Ors,1996, which elaborately
discusses the questions related to Dharma, ‘what is dharma?’, ‘Is Dharma
same as Religion?’ Judge HANSARIA held that, “Very often the words
"religion" and "dharma" are used to signify one and the same concept
or notion; to put it differently, they are used inter-changeably. This,
however, is not so, as would become apparent from what is being stated
later, regarding our concept of dharma. I am of the considered view that
the word religion in the two articles viz 25 and 26 of the Constitution, has
really been used, not as is colloquially understood by the word religion,
but in the sense of it comprehending our concept of dharma. The English
language having had no parallel word to dharma, the word religion was
used in these two articles. It is a different matter that the word dharma
has now been accepted even in English language, as would appear from
Wester's New Collegiate Dictionary which has defined it to mean :
"Dharma - custom or law regarded as duty.”
2. Dharma even regulates the law today, by means of morality in and outside
the courts as in the Secretary, Ministry Of Information & Broadcasting v.
Cricket Association of Bengal & ANR,1995.
3. In Dattatraya Govind Mahajan vs. State of Maharashtra, 1977, the court
talks about the Dharma of the Constitution, and the karma of
adjudication.
4. In National Legal Services Authority v. Union of India and others,
2014, Dharma thought to be an orthodox area is used in the cases much
unorthodox prime facie such as rights to transgenders.
5. In N. P. Amrutesh and Another v State of Karnataka and Others, 1995,
Dharma is been used by the courts as prestigious as Constitutional
benches and used in place and equivalent of duty and truth and even the
flag contains the dharma chakra of Ashoka.
6. In Shirish Christian v Maganlal Mangaldas Gameti and others, 2012, 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 welfare of others, not an orthodox view.

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 an eternal bliss, which has
seen many par and parcels of human life, mortals, but remained immortal.

7. Maneka Gandhi v. Union of India, 1978 - The Supreme Court pointed out,
“The fundamental rights represents the basic values cherished by the
people of this country since the Vedic times and they are calculated to
protect the dignity of the individual and create conditions in which every
human being can develop his personality to the fullest extent.”

Conclusion
Dharma and law may sometimes be in contrast but their roots remain the
same. Dharma and religion are not the same, but it can be said that religion
is born out of Dharma. Essentially, with the evolution of Dharma, people are
following their own version of Dharma. The existing law today i.e. the
Constitution and other legislations including judicial pronouncements have
been inspired by Dharma.

Though it may be said that Dharma and justice do not mean the same thing
but it may be said that legal justice is the effect or result produced by the
application of the rules of Dharma to a given fact situation.

'Dharma' is perhaps the most prominent sources of modern law and is

constantly shaping the society. Hence it can be said that Dharma and law are
closely related and interwoven.