Dharma and the Rule of Law

We use conjunctions between words and/or phrases to denote opposites or of things belonging to the same  genre. Day and Night ,hot and cold, Good and bad are examples of  expressions when an antonym follows the fist word. Fair and lovely, pith and substance, accord and satisfaction are some of the expressions where the first word and the word that follows it mean the same but it is still used that way to lay emphasis on the quality of the first word. Dharma and the Rule of law do not conform to either of the two examples only because the first word 'dharma' literally subsumes the adjunctive 'rule of law'. In such a situation, we normally do not use the conjunction 'and'. Summer is hot; winter is cold; Summer is so much else apart from being hot, the same way that winter is so much else apart from denoting cold. We are going to see how Dharma transcends the rule of law and if our striving for dharma is earnest, if we must make dharma a way of life, the rule of law which is but a smaller concept is already taken care of. We have gathered for a two day conference on "Human Values and the legal world" and the occasion is most propitious to examine the lofty concept of dharma and how we integrate it in our lives, in private and in public; that rule of law is the way we live; that which we endorse and that is assimilated. If it conflicts with dharma, to defy it! By engaging in this conversation, we will have laid the path for a better world to live; a world that lives by the universal mantras. through Satya, Prema, Shanti, Ahimsa and above all, Dharma!

SC cases where the concept of dharma was discussed

The Supreme Court of India has attempted to grapple with the concept of dharma in quite a few cases: in some cases to expound the law, in some cases to apply the law that is dharma; in some cases to say how law, that is legislation, has veered away from dharma. In Aruna Roy v Union (2002) the challenge to the National Curriculum Framework for School Education, was principally on the ground that the education policy framework sought to encourage vedic mathematics, sought to promote sanskrit as an optional language, encouraged the understanding of religious studies and the like.  The Supreme Court liberally used how each one of the objections served the cause of dharma and dismissed the PIL. In Lal Nagji v Jayantilal (1960), the Supreme Court was considering whether the sale of joint family property by the father for discharge of antecedent debt could bind  only if the debt was not tainted  with immorality and whether the knowledge of such immoral use of the debt was essential to be known to the purchaser. In essence, the court was considering the latitude of the principle of pious obligation of the son to be bound by the debt of the father. Gajendragadkar, who was himself a scholar in ancient Sanskrit texts used ancient wisdom through smritis in good measure but he said that the texts themselves have yielded to flexible assimilation through diverse practices and hence there was a need to take notice of the developments in law that have quietly and dextrously chiselled the texts for contemporaneous application. Today, we have a Hindu Succession Act amendment in 2005 which says that the theory of pious obligation is abolished and consequently, there could be no application of pious obligation to bind a progeny for his/her father's debts. In 1975, during the heydays of communism in Kerala, there was Abolition of Joint Family Act, a perverted idea at that a law could abolish the jointness of the family! In CIT v Bijli Cotton Mills (1979), the Supreme Court examined the case of a trader who was realising compulsory payments from customers for payment of 'dharmada' (charity). The contention of the assessee   that these receipts did not form part of trade price and purchase of goods only was an occasion and not a consideration for payment of dharmada. These receipts, the Supreme Court reasoned were property held in trust or legal obligation for charitable purposes. The argument advanced by the State in this case was rather strange. They pointed out to some decisions which said that the term dharma was vague and uncertain and the payment of a portion of price for a commodity as including for charitable purpose must be treated as void. This bizarre argument was repulsed by the Supreme Court but it still examined the origin of this theory to a decision of the Privy Council in Runchordas Vandrawandas v Parvatibhai (1899), which had ruled:

In Wilson's Dictionary 'dharam' is defined to be law, virtue, legal or moral duty.. The objects which can be considered to be meant by that word are too vague or uncertain for the administration of them to be under any control.

However, in a later Bombay case, namely, the Advocate-General of Bombay v. Jimbabai [ILR 41 Bom 181 : 17 Bom LR 799] Beaman, J., felt that in this country “Dharma” did mean roughly and almost invariably in the cases which had come up for legal decisions just “charity” and nothing else and observed:

“It is true that an Oriental's idea of charity might be a little wider and looser than that of the Lord Eldon, particularly amongst the lower and more illiterate classes of Hindus and Mahomedans; but a liberal use of the convenient doctrine of cy-pres, which is surely elastic enough to reach almost anything which Judges wish to reach, might have validated the technical defects and cured the infirmity”.

In A.S. Narayana Deekshitulu v State of A.P. (1966), the SC utilised the occasion while upholding the law abolishing the office of hereditary archakaship in Hindu temples, to dwell deep on the concept of Dharma.  It recounts a query that Yudhistra asks of Bhishma of what is the meaning and scope of dharma to which Bhishma replies:

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 Dharma.

Taitriya Samhita's definition of the term will admit of a universal application:

Dharmoh Vishwasya Jagatah Pratistha

Loke Dharmistham Praja upsarpanti

Dharmen Papamadnudati

Dharme sarvam Pratisthitam

Tasmad Dharmam param vadanti.

Dharma constitutes the foundation of all affairs in the world. People respect one who adheres to Dharma. Dharma insulates (man) against sinful thoughts and actions. Everything in this world is founded on Dharma. Dharma, therefore, is considered supreme.

Of a similar refrain was by Madhavacharya, the Minister to Hakka and Bukka, founder kings of Vijayanagar Empire, who,  in his commentary on Parashara Smriti, has briefly and precisely explained the meaning of Dharma as follows: 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 commands.

The Supreme Court summed up: Though dharma is a word of wide meaning as to cover the rules concerning all matters such as spiritual, moral and personal as also civil, criminal and constitutional law, it gives the precise meaning depending upon the context in which it is used. When dharma is used in the context of duties of the individual and powers of the King (the State), it means constitutional law (Rajadharma). Likewise when it is said that Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word dharma in the context of the word Rajya only means law, and Dharmarajya means rule of law and not rule of religion or a theocratic State. Dharma in the context of legal and constitutional history only means Vyavaharadharma and Rajadharma evolved by the society through the ages which is binding both on the King (the ruler) and the people (the ruled).

Meaning and implication of Rule of law

The concept of Rule of law is believed to have its origin in Chief Justice Sir Edward Coke's articulation during the James I rule. Sir Coke said that the King is under God and the Law and that the Law is supreme over executive. The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality). The concept was later developed by Dicey and written in his book Law and the Constitution (1885) as following 1. Supremacy of Law 2. Equality before Law 3. Predominance of legal spirit articulated through primacy of rights of individual. The Rule of law largely impacts the administrative law in the sense that law is seen as fulcrum of all activities of the government which will leave nothing to arbitrariness. The equality principle (epitomised through Arts 14 to 16 in the constitution of which we are familiar) ensures that there must be equality before law and equal protection of all laws. The prominence of the legal spirit is what we witness today when there is an increased reliance on courts as protectors of individual rights and liberties. We have now courts tasked to decide what serves individuality and privacy better. We want court to decide if I could be forced to reveal my biometric details to be collected by the State. Inherent is the lurking doubt that State will purvey on all my activities and my personal data could be stolen by all and sundry. We want the court to decide who I shall partner in my bed; is that a male or a female? We want the court to outlaw adultery because we assume the woman to a husband's chattel and trigger the process of law for complaint only if the husband has not consented to her amorous relationship. And above all, we want matters of religion and tradition to be decided by Courts. We want religious beliefs  tested under constitutional precepts of equality and reasonableness.

Dictatorial regimes have always resorted to excess powers only through rule of law

It will be wrong to assume that punctilious observance to rule of law will be a guarantee against arbitrariness. Hitler wrought to himself all the powers that pushed the world to the brink through constitutional process only. The declaration of emergency  and annihilation of all fundamental freedoms and unleashing of terror against political dissidents were through legal processes. The  decision of the Supreme Court in ADM Jabalpur case holding that in a state of emergency nobody had a right to life, as though the source of life was the constitutional document itself. The way we understand constitutionalism and bring our understanding to equality in such a fashion that even domestic decisions within the four walls of your house will be sought to be established on the basis of equality and based on voting rights. Our excessive reliance on rights have only corresponding obligations from the state and start complaining about what the State is not doing always. We extract no good conduct from the individual himself. It is a life of licentiousness; life of irresponsibility; life of indulgences and life of incessant frolic and life of self centred living; life of no care for the society; no care for the people; no care for the family, all of which are sure prescriptions of individual decay and national degeneration.

Excessive resort to courts will not help dharma

Our complaints that courts have failed to deliver spring from two facts: One, there is no guarantee that a case brought to court is decided once and for all within the life time of the person who takes the case to courts. There are innumerable tiers of judicial adjudication and there are various stages in the litigation, each of which could be stifled by inviting adjudication and taking up that matter to further levels so that the case is not decided at all. Two, there are too many things going to courts which ought to be sorted out even without resort to court process. Matters of beliefs and petty differences cannot be taken to courts. A judge of the Madras High Court has examined his own court records in a period of 3 months and reveals how one case gets multiplied  to 8 cases. Some of my colleagues in office want my permission to spend their holidays with their family to be done at government expense by seeking for my permission to create work for them at places where they want to go. Two young law graduates who have not yet registered for practice size up the quality of work by the time that they have to spend for preparation of a case, by the network that they must cultivate to feed that work and seek my blessings for them to begin their practice. They say that they have decided to practise in RCT because, they have found that it is possible to make lot of money with minimal effort! 

Acquiring knowledge of Dharma

How we will lead a dharmic life will also ensure that we commit no breach of rule of law. Impart the right values at home, since home is the first school. Family life is an important social control and sans family, instances like what rocked Delhi in Nirbhaya case are waiting to happen. It is said that there are simple tips for this himalayan task: (i) You must receive training under wise people (vidwans) who are also imbued with dharma; Keep a role model; (ii) You must aspire to attain self purification (atmashuddhi). Spend time for contemplation every day and (iii) you must realise the value of knowledge of the Vedas (veda vidya), voice of god. Direct attention to good conduct and what our scriptures and religious texts teach us. Mind your duties more than you may clamour for rights; find a connection to everything that you do to the society; of what you breathe is what the trees give out; of what we drink and eat are what the earth spews from her belly; of what we speak is what is heard by another and what we hear is what somebody speaks. See yourself as a spec in the continuum of cosmic life. Realise your worth by what you need to  do the society for all the enormity of  what you receive from others. That is your dharma that subsumes the rule of law. If you are a lawyer, promote truth to clients and help them settle. If you are a judge, strive for unearthing truth on all occasions and help warring litigants to better conversations that will resolve disputes. Hear Satya Sai Baba : “Dharma illumines the entire world. The word Dharma means, “that which upholds.” It is Dharma that teaches the right relationship between man and man, man and society, society and society. Dharma reveals to man through his heart what is right and what is wrong, what is true and what is false. It is Dharma , which promotes the welfare of society. Dharma protects its protector. The world cannot exist without Dharma”.