DHARMA AND THE

DEVELOPMENT OF
JURISPRUDENCE
admin | August 26, 2016 | Jurisprudence | No Comments

Picture courtesy: http://www.hinduhumanrights.info/wp-content/uploads/2014/04/rule-ofdharn-1000500.jpg

THIS ARTICLE WAS WRITTEN BY ANKITA

SHARMA A STUDENT OF M. S. RAMAIAH
COLLEGE OF LAW, BANGALORE.
The development of jurisprudence and the legal theory owes much to the ancient Hindu
legal thinkers and legal philosophers. The basic ideology behind the framework of Hindu
law is that though the importance of sacred law is emphasised yet the new development
and the local needs are not disregarded.
Hindu system of law is the most ancient pedigree of the known systems of Law.[1]
Hindu law remarks its genealogy from 6000 years ago and during this span, it has
passed through various phases. At times it has developed and grown remarkably well, it
has also sagged, it has reached such heights that even the most modern system may
envy it. Hindu law has also degraded so low that it has earned contempt, and many
times it has just dragged on. Yet throughout this period it has existed, and existed with
remarkable durability. Despite the fact that before the advent of modern era there was no
direct law making machinery, Hindu law has shown remarkable adaptability.
The concept of Law or Dharma in ancient India was inspired by the Vedas which
contained rules of conduct and rites compiled in Dharmasutras and Dharmashastras,
which were practised in a number of branches of Vedic schools.[2] Sruti (heard

knowledge) is considered to be the supreme source of knowledge for humans and

Smritis are the interpretation of Vedas and the four sages have propounded
Dharmashastras and are called Smritikaras.
According to the Historical significance Dharma attempts to exemplify the concepts
and practices associated mainly through the window, which opens on Dharmas vitality
as it played and was played, across political, religious, legal, literary, ethical and
philosophical domains and discourses it what holds life together. Dharma refers to the
religious ethics as propounded by Hindu gurus in ancient Indian scriptures. Tulsidas,
author of Ramcharitmanas, has defined the root of Dharma as compassion. This
principle was taken up by Lord Buddha in his immortal book of great wisdom,
Dhannapada. The Atharva Veda signifies Dharma symbolically as Prithivim Dharmana
Dhritam which amplifies the thought that this world is upheld by Dharma..
What is followed by those learned in Vedas and what is approved by the conscience of
the virtuous who are exempted from hatred and inordinate affection.[3]
Dharma (Sanskrit term) signifies the underlying order in nature and Human life and
behaviour is considered to be in accord with that order. Etymologically, it means right
way of living or proper conduct especially in religious sense. Ethically with respect to
spirituality Dharma is believed to be the way of higher truths. By its adherents it means
the eternal law.[4] Dharma is Santana which has eternal values and which is neither
time bound nor space bound.
Dharma is the holder of balance in terms of which artha and kama have to be dealt with,
weighed, practised and acquired. Manu says, that good of a man consist in harmonious
co-ordination. The sources from which knowledge of Hindu law is derived are indices of
Dharma that have been stated by Hindu Jurisprudents. Law as understood by the
Hindus is a branch of Dharma, Its ancient framework is the law of smritis. The smritis
were institutes, which enounce the rules of Dharma. The Veda, the Smriti, the approved
usages and what is agreeable to good conscience are according to Manu, the highest
authority of law, the quadruple direct evidence (sources) of Dharma.[5]
Some remarkable verses in Yajnavalkya Smriti challenges possible assertions of Divine
rights of King. No conspectus, howsoever brief, of the sources from which knowledge of
Hindu law and of stages of its legal literature may be derived, can omit to notice the
Arthashastra of Kautilya, who according to the most firmly established tradition was
celebrated by Chanakya whose prenomen was Vishnugupta. The work is not a
Dharmashastra, but a masterly treatise on ancient Indian polity and avertible reservoir of
rules inter alia relating to duties of a king, his administration including administration of
Justice, court of law, legal procedure contending the subject matter of philosophy.
In course of time, the commentaries appear to have acted with ever increasing force to
give an impulse to the systematic building up of law. The commentators amplified narrow
provisions of law, rounded off their angles and added a mass of relevant matter thereby
materially contributing to the process of self-development of law. The commentators,
although they rested their opinions on the smritis, were explaining, modifying, enlarging
and even at times departing from the letter of the lex scripta, in order to keep the law in
harmony with their environment and the prevailing notions of justice and to suit the felt
necessities of times. As a result, the process of development and assimilation continued
and the law gathered merely not from ancient text or solely from the commentaries, but
mainly from the rules of conduct and practices reflected in the approved usages.

In pre-colonial traditional India, the legal process of Hindu is said to have been
functioning in the same way as it had done for millennia, but it was not a centralized
institutional apparatus, formulated and
administered by a state independently of spiritual, or religious and cultural practices.
There are doubtless a good and virtual number of scholars who have written on dharma.
The most exfoliating scriptures and writings are of Mulla, J.D.Mayne,Paras
Diwan,Robert Linget, who contributed their thoughts to the development of legal
philosophy and are considered to be of empirical values which challenges several
distortions in the conceptualization of Hindu law in respect of the origins and
development of the formalist legal system. The developing concept and the
understanding of the complexities and variegated Pasteur is often characterized as
univocal structure under the rubric Hindu law.
The law compilers such as Manu and Kautilya bring the notion of dharma down to earth,
as it were, by devising a comprehensive system of social and moral regulations for each
of the different groups, sub-groups (caste,etc.,) within the Hindu social system. The spirit
of prevailing dharma and culture is dictated in terms of reference of legal deliberation
and is a critical genealogy of reconstruction of Indian legal History. On legal side, Davis
approaches the thesis and puts forward through a deep exploration of the scholastic
nuances of dharma, which he argues yields its earlier ritualistic rules (vidhi) which is an
empirical source for the rules that differentiate ordinary acts (karma) from legal acts
(karnatva, iti kartavyata) and the means for effecting the same(karakahetu).[6]
Recent efforts to the contrary, notwithstanding, the historiography of law has been
largely based on technical, often overly legalistic, reading of dharmashastra. The
intermediate realms of alw examines the exploration by scholars of Hindu law.
In medieval India, the religious leaders endeavoured to transform Islam into a religion of
law, but as custodian of Justice, the rulers made the sharia, a court subservient to their
sovereign powers. Thus, wherever the laws of India admit the operation of personal law,
the rights and obligations of a Hindus are determined by Hindu law i.e. traditional law,
subject to the exception that any part of that law may be modified or abrogated by the
statute. The study of any developed legal system requires a critical and analytical
examination of its fundamental elements and conception, as also the practical and
concrete details which helps in making the contents or the body of that legal subject. The
abstraction and exposition of the principles or distinctions necessarily involved in Hindu
law and the consideration of the line of development which it has pursued are the
appropriate matters of jurisprudence and legal history.
The promulgation of Regulating Act of 1773 by the King of England paved the way
for establishment of the Supreme Court of Judicature at Calcutta. After India
attained Independence in 1947, the Constitution of India came into being on
26th January, 1950. The Supreme Court of India also came into existence and its
first sitting was held on 28thJanuary, 1950.
The concept of Dharma as said earlier is fully explored in connection to the evolution of
Supreme Court. There is a comparison between the Constitutional laws and Rajadharma
(Dharma in the context of Rajya only means Law) and Dharma is secular or may be the
most secular. The same view is held until now, by all 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.

Indias National Emblem (Ashoka Chakra) has significantly been adapted from the Lion
Capital of Ashoka erected in the year 250 B.C., near Varanasi in Uttar Pradesh. At the
base of the Indian National Anthem, the Indian National motto Satyameva Jayate ,
meaning Truth alone will Triumph, is a mantra from the ancient Indian scripture
Mundaka Upanishad that has been inscribed in Devanagari script. Also, the Indian
National emblem and the inscribed words Satyameva Jayate are printed on one side
of all the Indian currency.
Significantly, in the logo of the Supreme Court of India, the words inscribed is Yato
Dharma Tato Jaya. It means where there is Dharma, there is victory.
The design of the Dharma Chakra logo of the Supreme Court is reproduced from the
wheel that appears on the abacus of Sarnath Lion capital of Ashoka within 32 spokes.
The inscription in Sanskrit is referred to as the wheel of righteousness, encompassing
truth, goodness and equity. Bhagavad Gita, a part of the popular Indian epic
Mahabharata significantly exfoliates the emerging concepts of Dharma in connection to
the developing concept of Jurisprudence by the Landmark judgements of Supreme
Court.[7]
Landmark decision in the history of the Indian Constitutional Law were amplified by
Supreme Court. Dharma is being 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.[8]
Nearly sixty years after Independence, there still exist anomalies that troubles the
scholars of Indian secularism. The Supreme Court is, of course, one among several
sites where the contestation over Dharma is played out in reference to secularism. This
monograph examines how the Supreme Court defines and demarcates dharma and
religion.
The concept of Dharma has been used by Supreme Court in various cases in
understanding the significance of its usage. Supreme Court held that the Parliament
could amend any part of the Constitution as long as it did not alter the basic structure or
framework of the constitution. Thus, Judiciary, somehow managed to save our
Constitution with this shield of Basic structure doctrine.[9]
Supreme Court elaborately discusses the questions related to Dharma and with
reference to the significance it talks about the Dharma of the Constitution and the karma
of the adjudication[10]and it also stated that the court.[11]
Article 21 of the Indian constitution is ever growing. Like Dharma includes every aspect
and facet of human life whether internal or external and provides a law to govern it and
safeguard and the same is being done by Article 21 with the help of the other
Fundamental Rights. Article 21 is basically to prevent encroachment upon personal
liberty and deprivation of life except according to procedure established by law. The
scope of Article 21 was a bit narrow till 50s but now the present scenario of our
constitutional and parliamentary status reveals the wider scope of Article 21 and its
applicability.
Article 21 of our Constitution was interpreted most dynamically by the Judiciary. The
Supreme Court opined upon the inter-connections between Article 14 (Equality), Article
19 (Freedom) and Article 21.[12] The spirit of man is at the root of Article 21.[13] It has
been interpreted in a very dynamic way by Supreme Court to include a plethora of rights

not specifically mentioned in the Indian court. It is believed to be an umbrella of rights

today.
Moreover, material and substantial changes and modifications in the law have recently
been brought about by a number of recent enactments, which aims to ensure a uniform
civil code of personal law for Hindus in whole country. The changes, no doubt radical,
proceeds in the principle of equality stressed in the Constitution for evolving a just social
order after taking due note of the existing conditions and ideas. Thus the interpretation of
Indian Supreme Court in the context of Dharma is of empirical significance and its value
is treasured even today.

[1] (J.D.Mayne), Treatise of Hindu law and usage, 1878

[2] The earliest document throwing light on the theory of Jurisprudence, which forms the
part of practical governance, is the Arthasastra of Kautilya dating back to Circa
300B.C.
[3] Manusmriti. II, 1. Medhatithi one of the earliest commentaries on Manusmriti
explains the term Dharma as duty Dharmashabdah kartavyata Vachanab, VII.
[4] Krishna in Bhagavad Gita Quotes Wherever Dharma declines the purpose of life is
forgotten, I manifest myself on earth. I am born in every age to protect the good, to
destroy the evil and to re-establish Dharma.
[5] Manusmriti,II,12.The variant text of yajnavalkya adds one more source desire
sprung from due deliberation.
[6] JAAR paper Hinduism as a legal Tradition. Davis acknowledges the Mimamsa
Rhetoric on a par with Dharmashashtra Rhetoric as The legal Rhetoric around the
concept of Dharma.
[7] Mahabharata says It (Dharma) is difficult to be defined. 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 Dharma
[8] N.P.Amrutesh and Another v. State of Karnataka and others, (1995) Indlaw KAR 245,
KAR 290 AIR (1995)
[9] Keshavanada Bharti v. State of Kerela, 24th April (1973)
[10] Dattatraya Govind Mahajan v. State of Maharashtra, AIR 915,1977 SCR (2) 790
[11] A.S.Narayana Deekshitulu v. State of A.P. and others (8) AIR 1765 (1996)
[12] Maneka Gandhi v. Union of India, AIR 597, 1978 SCR (2) 621 (1978)
[13] Krishna Iyer J