Role of Dharma in Ancient Indian Jurisprudence*1

Introduction:
T. S. Eliot wrote Time present and time past are both present in time
future. A nation which alienates itself from its past should struggle in
future. In case of India we also quite ignorant about our glorious past and in
every field we want to follow the western countries blindly. We also feel
pride to criticize Indian literature. We read Homer, but do not read Vyasa or
Valmiki and thus could not know what a splendid confluence of literature
and philosophy and all conceivable thoughts and cultural heritage was there.
In its all-pervasive manifestation of human character the Mahabharata was
unparallel. We read Shakespeare and other masters of western literature, but
do not read Kalidas and thus could not know what a world of truth, good and
beauty was created in our literature. We read Hegel, Kant, Spinoza and other
western philosophies, but do not read Shankara, Ramanuja, Hemchandra or
Nagarjuna or other Indian philosophies and thus could not know to what
spectacular height and depth philosophy could go. The thesis of Karl Marx,
one of the greatest thinkers of the world, that the economic order regulates
the social order fascinated us. But we could not know that hundreds and
hundreds of years before Karl Marx, our Kautilya in his Arthasastra
pronounced this thesis and said "Artha Eva Pradhanah". In this context this
paper is a study on the role of Dharma in ancient Indian jurisprudence and
its impact on the contemporary period. In this paper first Dharma has been
defined and some salient features of ancient Indian jurisprudence have been
discussed and then it has been compared with western jurisprudence. The
researcher has derived light about the superb character of ancient Indian law
1

* Aparup Pakhira, LL.M 1st Semester, National University of Juridical Sciences, Kolkata.
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from the works of Justice A. M. Bhattacharjee, Justice Rama Jois and

Professor M. N. Pandit.
What is Dharma:
Etymologically Dharma is derived from the root Dhri , that is to hold .
Literally, that which firmly supports or upholds , moral and religious truth ,
right conduct ,action in relation to temporal rather than spiritual pursuits.
The normal conduct or practice in everyday life of a general prudent person
may be called as Dharma. The behavior or external activities of any person
used to be controlled by the Dharmasastras. Today law (Criminal Law)
controls the external activities of mankind . In that sense law and dharma is
synonymous .The purpose of law in present day and the role of dharma in
ancient period was same. It is the principle of social cohesion.
Aims of Indian Phylosophy:
Indian phylosophy discusses four fold aims of human existence--1.Dharma 2.Artha 3.Kama 4.Moksa
The guiding principle of resolving conflict between the aims and pursuit of
Dharma, Artha and Kama is that the Dharma is the principle aim of
regulating the human behaviour.
Ancient Hindu Law laid down rules regulating profit, rates of interest and
prices.
Principle of Dharma

The principle of Dharma is social cohesion.

Holding men together in harmonious relationship.

French jurist Duguit called this principle as the principle of social

solidarity.

The central theme of Dharma is based on four principlesrights,

duties, justice and morality.

Interpretation of Dharma by Supreme Court:
Supreme Court has interpreted Dharma appropriately. In a PIL filed by
Aruna Roy and others Apex Court interpreted dharma meaningfully .The
three Judges bench concluded that the word Dharma has a very wide
meaning .One meaning of it is the moral values or ethics on which the life
is regulated.
In A.S.Narayan vs State of Andhra Pradesh Supreme Court interpreted it
elaborately .To Court Dharma embraces every type of righteous conduct
covering every aspect of life essential essential for the sustenance and
welfare of the individual and the society. Rules of Dharma are meant to
regulate the individual conduct. Court also concluded that the signs and
symptoms of Dharma are that which has no room for narrow mindness
,sectarianism, blind faith,..Having done for all human being is Dharma.
Defending the nation is the Dharma of the soldier.
In Harendranath Bhattacharya vs. Kaliram Das (Dead) by his heirs and Lrs
S.C. concluded that the role of Dharma is to protect all the community, not
a particular one. In this connexion the findings of the Apex Court is really
admirable. In this case some property was devoted to some Hindu God. The
property was being used for the Hindus only. Court came into conclusion
that the property was devoted to God for the purpose of

establishing

Dharma and so the property should not be used for the benefit of any
particular community or religion as before God everyone is equal. In so
many judgements Apex Court has defined Dharma outstandingly.
Dharma and Jurists:
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Salmonds thesis that law is not might alone or right alone but a blend of
both is reflected in Dharma and Rta. Salmond defines law as the body of
principles

recognised and applied by the state in the adminstration of

justice.In Yajnavalka we find the same reflection.The oft-quoted definition

of law by Holland provides us with a fairly comprehensive, satisfactory and
workable basis for our present purpose and the definition is that 'a
law is a general rule of external human action enforced by a sovereign
political authority'. Judging by this definition, the whole gamut of the nonstatutory portion of the Hindu
law was obviously 'law', for it contained sets of rules regulating external
actions of the Hindus and these were enforced by the well designed
authority through the judicial organs and otherwise.Hindu law was not very
different from the modern Austinian conception.
The thesis of Bentham, a Jurist of
International standing to the effect that property and law were born together
and shall die together is a half-truth.The view of the ancient Indian Jurists
(e.g. Narada, Brihaspati) is more accurate and comprehensive and the view
is that there are two branches of law and adjudication, one arising out of
property (Dhana) and the other arising out of violence (Himsa). Dwipada
Vyavaharascaiva. Dhana Himsa Samudbhava.
Basics of Our Ancient Law:
Independence of Judiciary:
In British jurisprudence king was above law and the crown was not bound
by justice.But our Dharmasatra proclaimed Dharmat Vicalitam Hanti
Nripameva Sabandhavam.Judiciary was adminstered by Dharmasastras
which was beyond the reach of the other authorities ,including the king..
Laws were equally binding on the Sovereign and the Sovereign was not
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above the law. Even in 1950, we had to declare in Article 50 of our

Constitution that 'the State shall take steps to separate the Judiciary from the
Executive in the public services of the State'. But our Dharmasastras were
the first to realise the dire necessity to make the Judiciary independent of
and separate from the other organs and in order to secure such separation in
the most effective way, the-y made the laws of the Dhannasastras as
administered by the Judiciary beyond the reach of the other authorities,
including the King. Undoubtedly it was an outstanding achievement of our
ancient Indian jurisprudence as our twenty-centuries old Dharmasastras
could secure such separation and independence at the dawn of civilization.
Rule of Law
British and American jurisprudence extols rule of law. The Dharmasastras
demonstrated the utmost supremacy of law. Brihadarnyaka Upanishada
reveals that Dharma is the King of Kings(Khatayasyn khartom) i.e. even the
king is subordinate to the rules of law.This is also equality before law which
has been incorporated in Article 14.
Natural Law
Bhrunhatya(foeticide) is regarded as a heinous sin in Rigveda , the oldest
of the Veda. It is also regarded as an offence against the body of the women
under the Smritis. It is sin against the order of the nature. Sections 312 to
315 of IPC and 382 of the Cr.P.C. has been incorporated from this view. The
Medical Termination of Pregnancy Act,1971 is the impact of Dharma. Apex
Court has laid down that right to terminate pregnancy as the fundamental
right of women. This is nothing but a principle of natural law .
Procedure Established by Law
While in modern jurisprudence we have taken far too long to discard the
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'literal approach' in favour of 'purposive approach', our Dharmasastras

advocated 'purposive approach' thousands of years ago, even though their
reverence for the letters of the sacred law was almost devotional. In the
celebrated text of Brihaspati it was declared that 'Kevalam Sastramashritya
Na Kurtyava Hi Nirnaya, Yuktihine Vichare Tu Dharmahanih Prajayate ,
that is, decision was never to be made solely by having recurse to the letters
of the law, for a decision not according to the reason of the law would
occasion miscarriage of justice. The due process has been incorporated in
American Constitution by 14th amendment and our Apex Court has
established it in so many cases. Directive principle has also been conceived
from ancient Indian jurisprudence.
Fundamental Duties
Every duty imposed on one would imply a corresponding right vested in
another and that the performance of duty by one would result in protection
of right of that other. The Dharmashastras realised this truth almost at the
dawn of human civilization . In 1976 fundamental duty was incorporated in
our constitution.
Limited Government
Kings monarchy was Sankusa Prabhutwa and not Nirankusa
Prabhutwa. King was ordained to consult the Council of Minsters and to act
according to the advise of the majority even in judicial matter also. In India,
all government actions, contract etc. purported to be done by President or
Governor. In Britain the practice is also same.
Human Rights and ancient Indian Criminal Jurisprudence

Our ancient Indian Criminal Jurisprudence placed the interest of the society,
the community or the State above the interest of an individual. For those of
us who have obsession for anything accidental or western, reference may be
made to the maxims Interest Republicae Supreme Lex, Salus Populi
Suprema Lex, which mean that the interest of the State, and the welfare of
the People, are the supreme laws.This is nothing but protection of human
right. Life, liberty, equality and dignity of individual have been guaranteed
as judically enforceable rights in the Constitution of India by Human Rights
Act, 1993 ;Section 2(d). Supreme Court in Maganbhai Iswarbhai
Gramaphone Co. of India, Valsamma Paul, C. Masilamani, Visakha, Apparel
Export Promotion council, and Githa Hariharan has uphold this view.
Ancient Indian Criminal Jurisprudence According to our Ancient Indian
Constitutional Law (RAJADHARMA), two of the most important duties of
the king (or the state) were (a) to punish the wrong-doer (DUSTASYA
DANDAM) and (b) to protect and honour the good people (SUJANASYA
PUJA). Which was duly called as DANDANEETI. In modern India also,
as in various other Countries, Criminal Justice Administration has, as its
main objects, adjudication of the cases relating to crimes, i.e., offences
punishable by law, punishment of the offenders, prevention of such offences
and protection of the people from the onslaught of such crimes or offences.
Environment and Ancient Indian Jurisprudence
Environmental-ecological jurisprudence is a post-Stockholm modern
development in the Euro-American world. But thousands of years ago,
reverence for nature -and its benevolence, was current coin in Indian holy
law. The Atharva Veda hymn prayerfully presses home ecology, "[Jet the
Mother Earth enriched by oceans, rivers, bounty of rains and satisfying the
entire living world by agricultural products, food grains, juicy fruits, help us
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in establishing ourselves on its rich part of the soil"

Ecological sensitization and conscientisation of the whole community,
blending religious appeal with material gains was the social process of Vedic
Indians to preserve nature. The object is secular and eco-friendly. The
method is a people-oriented appeal through the prayerful process of cosmic
patriotism.
International Relation and Diplomacy
Laws of war, wearing a modern mien, are latent in the concept of Dharma
Yuddha. Kautilya and Smriti have elaborately discussed the laws of war and
peace . From Mahabharata and Ramayana we get many glittering example of
diplomacy.
Good Governance
In Indian Rajdharma detailed training in various branches were provided for
the heir-apparent. Detailed qualifications were also prescribed for the
ministers an members of the Parishad. In May, 1949 Dr.Rajendra Prasad
regretted this lacuna in the Constituent Assembly.
Welfare State
The ancient Indian law codes would convince anyone that the paramount
concern of the King and his governance was the welfare of the people. Five
duty of the King Dustasya Dandam,Sujanasya Puja,rastraraksha, etc. In
Atri Samhita it has been pointed out Nyayena Kosasya Cha Samprabidhi.
Manu advised that state will collect tax in such a manner just like bees
collect honey from flower without making any injury. If the stolen property

is not recovered then the king must make good the loss to the victim subject
Katyayana , Narada
Conclusion:
Dr. P. B. Mukharjee, a former Chief Justice of the Calcutta High Court,
observed that 'this oldest system, older than the jurisprudence of Rome and
England, is surprisingly modern, and_a lot legal and historical scholars have
yet to work hard and long in this vast field of research to explore and
appreciate the wisdom, excellence and maturity of the Hindu judicial
system'. Our ancient jurisprudence was highly developed. It is still relevant
and contemporary. The present criminal justice system has many points to
learn from our illustrious past in the field of penology. India, Indian culture
has survived so many times against devastating invasions only for the reason
that the impact of Dharma is deeply rooted in the society.
Suggestions:
Applications of all these principles from our past can go a long way in
solving many problems of our present system. It is the high time we stop
looking towards western jurisprudence for everything without looking into
our own past, which is full of knowledge and wisdom. In school or college
level, students should be taught ancient Indian jurisprudence