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 inter-
State 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

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
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

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.”
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.”

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.
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,

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 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 co-
existence 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.
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
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 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.

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.”