Relevacne Of Dharma In Law.docx

NOIDA INTERNATIONAL UNIVERSITY

LAW & JUSTICE IN GLOBALIZING WORLD RELEVANCE OF DHARMA IN LAW

FAHIMUDDIN AHMED KHAN LLM

TABLE OF CONTENTS

INTRODUCTION MEANING OF DHARMA ORIGIN OF DHARMA FUNCTIONING OF DHARMA DECLINE OF DHARMA AND ADVENT OF POSITIVE LAW POST-INDEPENDENCE ERA ARTICLE 21- RIGHT TO LIFE EVOLVING ‘CONCEPT OF DHARMA’ A COMPARSION CONCLUSION

INTRODUCTION “Hindu law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude.”Henry Mayne. Hinduism is a way of life, a Dharma. The word Dharma is derived from the Sanskrit word “dhri” which means “to hold together.” Those who profess the Hindu Dharma and seek to follow it are guided by spiritual, social, legal and moral rules, actions, knowledge and duties which are responsible for holding the human race together. Dharma does not mean religion: it is the law that governs all actions. Hindu Dharma is also known under other names such as Sanatan Dharma (Sanatan means eternal and all-pervading) and Vedic Dharma (Dharma based on the Vedas).The Hindu religion not only consists of rules encompassing the rights and duties of kings and warriors, but also provides norms of Desa Dharma that govern interState relations. 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

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Brereton, Joel P. (2004) “Dhárman in the Ṛgveda”. Journal of Indian Philosophy 32: 449–89. Bhavan Journal, p.123, Vol. XX, No. 1, 1973

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 Jois4 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

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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.”

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 religion7; 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 & Ors8 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 in the realm of direct experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”

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All you need to know about Hinduism. Available at: http://history-of-induism.blogspot.in/2010/11/sanatanadharma.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.

The supremacy of Dharma can be understood from a simple point that the King was not above Dharma, he was governed by it, and if he didn’t than the Dharmashastrakara give right to the public to revolt against such an unjust, arbitrary and unrighteous king or government. The treaties of Manu, Kautilya and others contains many rights and duties of both the king and the public, and even recognised individual rights like right to private property, personal wealth etc., which were bound by the law for interest of society at large. DECLINE OF DHARMA AND ADVENT OF POSITIVE LAW With the advent of Muslim rule followed by British rule, Dharma (Hindu) started losing its gloss and roots. During Muslim rule, the place of dharma was taken by koranic teachings, though many practises remained, hence it remained mainly untouched. But, with the onset of British rule, and their ignorance of the Indian laws had a devastating effect on the concept of Dharma as they found no laws here to govern people and they started to fix the issue by either importing western law or say natural law with the devices of equality, justice and good conscience or imposing western laws by means of codification in fields where no law was offered by either the Hindu’s or Muslim’s Natural law, teachings and customs. But the civil rights and liberties enjoyed by people were taken away. Indians were treated ruthlessly and arbitrary suppressed in every sphere of life ranging from political to social and economical. Indians fought back for the rights and liberties that they enjoyed before under the Law of Dharma. During his famous champaran trial, Gandhiji remarked that he disobeyed the law not to show disrespect to British law, ‘but in obedience to higher law of our being – the vice of conscience’, by which he meant Dharma. 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 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.

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 followed10 is enough to question the very spirit on which our constitution was founded. The judiciary gave a decision in Habeas Corpus case11 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. Golaknath12 case, and later the doctrine of basic structure was propounded by the Honourable Supreme Court in His Highness Keshvananda Bharti case13, 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 features14: 1. Supremacy of the Constitution; 2. Republican and Democratic form of Government; 3. Secular character of the Constitution; 4. Separation of powers between the legislature, executive and the judiciary, and 5. Federal character of the Constitution. ARTICLE 21- RIGHT TO LIFE15 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 livelihood16,

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Emergency turns 39, On June 27, 2014 by A. Mandhani, Available at: http://www.livelaw.in/emergencyturns-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 Agency. 15 The Constitution of India, 1950, Part III, Article 21 16 Maneka Gandhi v. Union of India, AIR 1978 SC 597

life is more than mere animal existence17, right to legal aid18, Rights to dignity of a convict19 and much more but does not include Right to die20. 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 & Ors21, 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 Maharashtra23, 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 transgenders24. 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 Ashoka25. 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 coexistence with welfare of others26, 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 17

Kharak Singh v. State of U.P., AIR 1963 SC 1295. 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 18

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 presupposes 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 evidences28. 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. 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.” 28