Dharma and jurisprudence :

Dharma is deemed to be the highest ideal of human life. It deals with the virtuous
conduct of man, his duties and his relationship with religion. It is the closest what
India has to natural law and ethos, and finds its ultimate aim in the welfare of
society. It includes anything that is right, just and moral. It originates from the
Vedas and is a time immemorial concept. This paper analyses the decline of
dharma with the advent of positive law and how it found its way in legislations in
India post-independence, with emphasis on A. 21.

Dharma, in concept deals with duty, religion and inseparable quality of a thing or
orders i.e. virtuous conduct of righteous man and dharma in literal sense means
‘something which sustains or upholds’ and is a Sanskrit noun derived from root
‘dhr’. Dharma is semantic equivalent to the Greek word ‘ethos’[1]. Dharma is the
Indian version of Natural law, how Indians perceived it in ancient society but the
vision of them was very far-fetched and is praised by many imminent personalities
like Max Muller[2]

Dharma in contradiction to general opinion does not mean religion nor supports
any, but it is a whole body of rules and believes including in itself the religious
rights, rules of conduct and duties. Here when we talk about religious rights or
duties, it does no prefer anyone over the other but describes it for all religions.
Dharma as said by Jaimini is, “founded on the revelation which is conducive to the
welfare of the society, ordained by the great Vedas”. Dharma is primarily based on
the Vedas and has many indices such as Sruti, Smriti and moral laws (sadachar)
and governed the lives of people in the ancient time. Dharma was a duty based
legal system that is every individual owed a duty towards other member of the
society as Duguit says “The only right which any man can possess is the right to do
his duty, his theory of Social Solidarity states that even the sovereign or the state
does not stand in any special position or privilege and its existence is justified only
so long as it fulfils its duty.”[3], which is in direct contrast to the present day legal
system which specifies rights rather than the duties. We will see in this research
project the close relation between Dharma and the current legal system.
Meaning of Dharma

Dharma is generally accepted to have been derived and supersede from the vedic
concept of Rita, which literally meant, ’the straight line’. Rita refers to the Law of
Nature, it signifies moral laws, and based on righteousness. When something is
Rita it simply meant that thing is true, right and nothing more. Dharma evolved
side by side of Rita but eventually took over it as the old concept of Rita was not
able to cope and solve the issue emerging with increasing social complexities.
Dharma signifies Natural law.

Dhrama, as been said by Justice M. Rama Jois[4] is, “Dharma is that which
sustains and ensures progress and welfare of all in this world and eternal bliss in
the other world. The Dharma is promulgated in the form of command”.
Mahabhartha also contains a discussion on the issue of defining dharma[5].
Dharma in words of Madhavacharya is, “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 Dhrama.”

Dharma is anything that is right, just and moral. Dharma aims for the welfare of
state and mainly, its people.
Origin of Dharma

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the
supreme source of knowledge for humans, as the narration of what is heard from the
ancient priests that is Sruti and they contains narration on everything possible ranging
from military to politics to common people’s life. Its other sources are Smriti, which are
the interpretation of Vedas and four sages have propounded the dharmasastras and are
called Smritikars. They are:

1. Manu
2. Yagnavalkaya
3. Brihaspati
4. Narada

The other source has been Puranas which are eighteen in number and contains
information about the creation and dynasties of god, sages and kings and detailed
description of yugas. All the sources are on the same footstep and no one has
supremacy over the other.

Idea which made people adhere to the Dharma can be illustrated by one verse from
Brihadaranyaka Upnishad which is, “punyo vai punyena Karmana bhavati, Papah
Papeneti”, meaning ‘everyone becomes good by good deeds and bad by bad deeds’, in
other words ‘every one reaps what he sows’ and what’s good is defined by Dharma.

Functioning of Dharma

Dharma is sanatana, i.e. which has eternal values; one which is neither time-bound nor
space bound. The concept of Dharma is with us from time immemorial[6]. Dharma is
different from religion[7]; however they are commonly misinterpreted to mean the same
and thence used interchangeably. As the above said was distinguished by Justice J.
Hansaria in A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[8] by
quoting Swami Rama’s book ‘A Call to Humanity’ by the following words:

“Religion is enriched by visionary methodology and theology, whereas dharma blooms

Post-Independence Era

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 (Dharma) started to been codified according to the
changes in outlook and lifestyles, as it was realised that ancient way should yield to
realistic approach of life[9]. The principles of natural law (Dharma) found its way into the
constitution in the way of fundamental rights. Dharma was codified Dharma as we all
know was a duty based legal system but the current legal system became a right based
one. Of course, these rights comes are not absolute that they too have certain
restrictions. Right to equality, freedom of movement and most cherish able right to life
are some of the fundamental rights provided. But, there are ample evidences from the
history of the world as well from ours to show the misuse of power whether it been the
Hitler’s Nazi or the infamous Emergency imposed by Indira Gandhi and what
followed[10] is enough to question the very spirit on which our constitution was founded.

The judiciary gave a decision in Habeas Corpus case[11] on a day truly referred as ‘the
black day of Indian legal history”, which further deterred the belief of people in 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[12] case, and later the
doctrine of basic structure was propounded by the Honourable Supreme Court in His
Highness Keshvananda Bharti case[13], 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 following features[14]:

1. Supremacy of the Constitution;

Article 21- Right To Life[15]

The article needs special mention as the Supreme Court has been interpreting this
article according to the cases and has widened the ambit many folds to cover right to
livelihood[16], life is more than mere animal existence[17], right to legal aid[18], Rights
to dignity of a convict[19]and much more but does not include Right to die[20]. Article 21
is ever growing not bound by time and place. Like Dharma included every aspect and
facet of human life whether internal or external and provided a law to govern it and safe-
guard; the same is been done by Article 21 with the help of other fundamental rights.
Article 21 is large and wide and has a potential to confer every basic human right that
one needs to live a life of a dignified human.

Evolving ‘Concept of Dharma’

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[21], which elaborately discusses the questions related to Dharma, ‘what is
dharma?’, ‘Is Dharma same as Religion?’ And every answered each and every doubt.
Dharma as said above is distinct from religion. 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.[22]. In Dattatraya Govind
Mahajan vs. State of Maharashtra[23], 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 prime facie such as rights to transgenders[24].
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[25]. 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[26], not an orthodox view. The concept of dharma as said earlier
is fully explored in Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[27], 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.

A Comparsion

Dharma signifies regularity of order universally accepted, it includes religion, duty, and
inseperable of a quality or an order, whereas present day law is based on reasons and
does include religious aspects. Dharma is duty based concept, however the present law
focuses on rights rather than duties. Dharma in itself included morals, ethics and
righteous conduct of a man but the present system does not recognises the moral or
ethical values and rather than conduct or motive, it now focuses on the act and the
consequences. 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 modern sense is
confined to rights, legal duties etc. And not with righteous conduct and hence, is
particular in nature whereas Dharma is all pervasive and universal. The law pre-
supposes man’s idea of ‘what ought to be’ and is based on reasonableness.

The concept of welfare state, which is the nature of state today, is found to have roots in
Dharma. The Human Rights and fundamental rights have spurred from Dharma and
Rigveda clearly shows ample evidences[28].

Conclusion

Dharma and law as seen above may seem to be in contrast, but the ideology behind
them is same. At large, law is a part of Dharma without disharmony and they constitute
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 above sections. Dharma has been and is guiding our conduct, morals and
laws in varying degree. One may not find any relation between the two on the face but
on a deep analysis both are 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.

END NOTES:

[1] Brereton, Joel P. (2004) “Dhárman in the Ṛgveda”. Journal of Indian Philosophy 32:
449–89.

[2] Bhavan Journal, p.123, Vol. XX, No. 1, 1973.

[3] Duguit, L., Law in the Modern State, Review by: W. W. Willoughby, The American
Political Science Review, Vol. 14, No. 3 (Aug., 1920), pp. 504-506, Published by:
American Political Science Association, Article Stable URL:
http://www.jstor.org/stable/1946272

[4] Jois, M. Rama, Legal and Constitutional History of India (Vol. I), 2010, ISBN-
8175342064. Universal law publishing co.

[5] Mahabharta says “It (dharma) 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 Dhrama.”

[6] All you need to know about Hinduism. Available at: http://history-of-
induism.blogspot.in/2010/11/sanatana-dharma.html

[7] Rajesh HimmatlalSolankiv Union of India, Through Secretary, GHC, 2011. It was
held that Dharma and Religion are two different things, is some practises are not
prevalent in some religions it does not make them as adharma and in the same manner
Dharma embraces every religion. In other words, following of Dharma is secular and not
contradictory to Constitution.

[8] A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT
1996 (3) 482.

[9] Ambujam vs T.S. Ramaswamy, AIR 1973 Delhi 46, 8 (1972) DLT 292. Codification
of Hindu marriage related laws into Hindu Marriage Act, 1955.

[10] Emergency turns 39, On June 27, 2014 by A. Mandhani, Available at:
http://www.livelaw.in/emergency-turns-39%E2%80%8F/

[11] A.D.M. Jabalpur Vs Shiv Kant Shukla, AIR 1976 SC 1207.

[12] Golak Nath v. State of Punjab, AIR 1967 S.C. 1643.

[13] His Highness Keshvananda Bharti v. State of Kerla, AIR 1973 SC 1462-63.

[14] Dhyani, S.N., “Fundamentals of Jurisprudence”, 2004. Allahabad: Central law

[15] The Constitution of India, 1950, Part III, Article 21.

[16] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[17] Kharak Singh v. State of U.P., AIR 1963 SC 1295.

[18] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

[19] Union of India v. Bhanudas, AIR 1978 S.C. 1027.

[20] Gian Kaur v. State of Punjab, AIR 1967 SC 1257.

[21] Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR
1765, JT 1996 (3) 482.
[22] Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal
& ANR., 1995 AIR 1236, 1995 SCC (2) 161.

[23] Dattatraya Govind Mahajan vs. State of Maharashtra, AIR 1977 SC 915 1977
Indlaw SC 157.

[24] National Legal Services Authority v. Union of India and others, 2014 Indlaw SC
250.

[25] N. P. Amrutesh and Another v State of Karnataka and Others, 1995 Indlaw KAR
245, AIR 1995 KAR 290.

[26] Shirish Christian v Maganlal Mangaldas Gameti and others, 2012 Indlaw GUJ
2255.

[27] Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR
1765, JT 1996 (3) 482.

[28] Maneka Gandhi v. Union of India, 1978 1 SCC 248. The Supreme Court pointed
out, “These 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.”