India’s Legal Tradition

Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts

Indian Knowledge Tradition

Refresher Course Lecture, Jawahar Lal Nehru University
24 January 2023, New Delhi.
 Literature Review
P. V. Kane’s History of Dharmsastra (1962), and K.P. Jaiswal’s Hindu
Polity: Constitutional History of India in Hindu Times (1924) remain
primary Indian texts on the cultural evolution of law in India. Werner
Menski, Hindu Law: Beyond Tradition and Modernity (2003), and Donald
Davis, The Spirit of Hindu Law (2010), are important recent texts on Indian
legal tradition.

Two recent works provide the fundamentals of the comparative legal

cultures approach. Soren Koch and Jorgen Oyrehagen Sunde (eds.), (2020),
Comparing Legal Cultures, and CsabaVarga, Comparative Legal Cultures:
On Tradition and Anarchy of Rationalism (2012), emphasize that
integration of law and ethics should be developed in various cultures in
mutually complementary ways to achieve efficiency.
 Supreme Court Case
Majority opinion was that “in the context in which it is used, the word
“recommendation” would mean a consultative process between the Central
Board and the Central Government" and “It cannot be said that there was no
conscious, effective, meaningful and purposeful consultation”.
The RBI Act says, “On recommendation of the Central Board, the Central
Government may, by notification in the Gazette of India, declare….”.

In minority opinion “when law is clear, plain or unambiguous, and it is

reasonably susceptible to only one meaning, the court is bound to give effect
to that meaning and admit only one meaning and no question of
construction of a statute arises. The measure has been regarded as unlaw-
ful only on a purely legalistic analysis of the relevant provisions of the Act
and not on the objects of demonetization”.
 Western Legal Tradition
In general, in the Western legal tradition law is quite indifferent to morals.
It is insisted that law and morals are to be kept apart sedulously. Morality
and morals are conceived of as for the legislator or the student of legislation,
the one making specific, objective laws out of the raw materials of morality,
the other studying how this is done and how it ought to be done; but it is
considered that they are not matters for the judge or the jurist.

It is also generally held that the judge applies the rules which are given to
him, while the legal scholars and lawyers study these rules, analyze and
systematize them, and work out their logical content. This assumes that law
is a body of rules- Bentham, Austin and Maine were major jurists of 19 th
century who developed the positivist and analytical jurisprudence and
insisted vigorously on the separation of law and morals.
 Legal Culture
The idea of legal culture has had an important place in recent debates about
the nature and aims of law. The concept of legal culture means that law
should be treated as embedded in the broader culture of society. In a sense,
law is culture. Concept of legal culture encompasses much more than the
professional juristic realm. It refers to a more general consciousness or
experience of law that is widely shared by those who constitute a nation.

The nature of the Indian society is such even today that the Western
positivist notions of law do not touch the reality of the way most people
understand and live their lives. A juridical system that does not correspond
to the social and cultural sensitivities of a society can not be owned by the
people as their system but will be seen as something foreign and imposed.
Without a conducive social and cultural conceptualization mere formal law
cannot create willing legal and moral obligation.
 Spirit of Law
 The claimed absence of a single key word for ‘law’ in Sanskrit has given rise
to rather misguided assumptions among scholars of Indology as well as
lawyers that ancient Indians were somehow deficient in legal theorising and
lacked a clear conceptualisation of ‘law’. The field of jurisprudence now
needs to be re-examined, to show the rich plurality of meanings of what are
in fact various types and conceptualisations of ‘law’ in Indian tradition.

 In the Indian legal tradition we can see an indigenous system of law and
justice, focused on the key concepts of rita and satya. In addition, dharma,
danda, vyavahāra, ācāra and its various forms and other terms are relevant
to a deeper understanding of the richness of ancient India’s conceptual-
isations of ‘law’.
 Law and Morals
 In Indian legal tradition there is no one textual statement that can represent
‘the law’ as it is understood today. The Indian legal system is not built on
codified statements by a human legal authority, to which factual situations
are then related, nor is it based on a fixed revelation, which came down from
heaven one day and binds all adherents.

 The Indian tradition of law is based on a clear awareness of a pre-existent

order, the observable system of nature, conceptually embodied in the Vedic
concepts of Rta and Dharma. The traditional Indian concept of macrocosmic
order, beyond direct human reach, transcends and envelops any form of
positivistic human law-making.
 Rule of Rta
 The concept of rta or eternal law is a multifaceted concept connected to all
the fundamental concepts in the Vedic tradition. Rta is the eternal law of
order and harmony underlying the cosmic phenomenon. This eternal and
universal order or law is all pervasive and the universe is the expression of
this order maintained by the gods.

 The sphere of rta is physical, metaphysical and ethical. The term signifies
the course of the natural world perceived through its rhythms, seasons, cyclic
movements and equilibrium and harmony in nature. It refers to three basic
elements, activity, order, and system. Hence, “heaven and earth exist in close
unison in the womb of rta”. (Rg Veda, 4.23; 10.65; 10.190)
 Social and Spiritual Dharma

Indian legal tradition was never a western-style legal system with codes and
cases but respected at all times the situation-specificity of justice based on
natural law principles. Law is based outside the realm of the human, but
there is a subtle link and correspondence between cosmic order and human
existence. Individual freedom rests on socially operative normative order to
which ruler is also accountable.

The term dharma neither denotes just ‘religion’ or ‘law’, but the moralised
duty, placed upon every individual, to contribute to macrocosmic as well as
microcosmic order. In other words, the central expectation is that an
individual will strive to do the right thing at the right time and will give his
best. Appropriate action, following one’s duty, is the aim of life.
 Conclusion
A wonderful set of guaranteed fundamental rights makes little sense if
hundreds of millions do not know what has been guaranteed to them and
thus cannot claim their legally protected rights. This is a problem of both
legal literacy and lack of accountability of those who do know the law and
can manipulate it. The backlog of millions of court cases is a grim example.

The Western ‘rule of law’ model does not have much credibility, as the
formal state law could not, and has not, fulfilled its legal promises of
equality, non-discrimination and protection of basic rights. This realization
necessitates reconstruction of today’s laws by reference to indigenous norms
and values. Exclusive reliance on western models has to give space for a
renewed and vigorous inclusion of Indian legal tradition.