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 stru!!le in future. In case of India we also "uite i!norant about our !lorious past and in e#er$ field we want to follow the western countries blindl$. %e also feel pride to critici&e Indian literature. %e read 'omer( but do not read )$asa or )almi*i and thus could not *now what a splendid confluence of literature and philosoph$ and all concei#able thou!hts and cultural herita!e was there. In its all+per#asi#e manifestation of human character the ,ahabharata was unparallel. %e read Sha*espeare and other masters of western literature( but do not read -alidas and thus could not *now what a world of truth( !ood and beaut$ was created in our literature. %e read 'e!el( -ant( Spino&a and other western philosophies( but do not read Shan*ara( Ramanu.a( 'emchandra or /a!ar.una or other Indian philosophies and thus could not *now to what spectacular hei!ht and depth philosoph$ could !o. The thesis of -arl ,ar0( one of the !reatest thin*ers of the world( that the economic order re!ulates the social order fascinated us. 1ut we could not *now that hundreds and hundreds of $ears before -arl ,ar0( our -autil$a in his Arthasastra pronounced this thesis and said 2Artha E#a 3radhanah2. In this conte0t this paper is a stud$ on the role of Dharma in ancient Indian .urisprudence and
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* Aparup 3a*hira( 44., 1st Semester( /ational 5ni#ersit$ of Juridical Sciences( -ol*ata. 1

its impact on the contemporar$ period. In this paper first 6Dharma7 has been defined and some salient features of ancient Indian .urisprudence ha#e been discussed and then it has been compared with western .urisprudence. The researcher has deri#ed li!ht about the superb character of ancient Indian law from the wor*s of Justice A. ,. 1hattachar.ee( Justice Rama Jois and 3rofessor ,. /. 3andit. What is Dharma: Et$molo!icall$ 6Dharma7 is deri#ed from the root 6Dhri7( that is 6to hold7. 4iterall$( that which firml$ supports or upholds( moral and reli!ious truth( ri!ht conduct (action in relation to temporal rather than spiritual pursuits. The normal conduct or practice in e#er$da$ life of a !eneral prudent person ma$ be called as Dharma. The beha#ior or e0ternal acti#ities of an$ person used to be controlled b$ the Dharmasastras. Toda$ law 89riminal 4aw: controls the e0ternal acti#ities of man*ind. In that sense law and dharma is s$non$mous .The purpose of law in present da$ and the role of dharma in ancient period was same. It is the principle of social cohesion. Aims of Indian Phylosophy: Indian ph$losoph$ discusses four fold aims of human e0istence+++ 1.Dharma ;.Artha <.-ama =.,o*sa The !uidin! principle of resol#in! conflict between the aims and pursuit of Dharma( Artha and -ama is that the Dharma is the principle aim of re!ulatin! the human beha#iour. Ancient 'indu 4aw laid down rules re!ulatin! profit( rates of interest and prices. Principle of Dharma

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The principle of Dharma is social cohesion.

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'oldin! men to!ether in harmonious relationship. ?rench .urist Du!uit called this principle as the principle of 6social

solidarit$7. The central theme of Dharma is based on four principles@ri!hts(

duties( .ustice and moralit$. Interpretation of Dharma by Supreme Court: Supreme 9ourt has interpreted 6Dharma7 appropriatel$. In a 3I4 filed b$ Aruna Ro$ and others Ape0 9ourt interpreted 6dharma7 meanin!full$ .The three Jud!es bench concluded that the word 6Dharma7 has a #er$ wide meanin! .Ane meanin! of it is the Bmoral #alues or ethics on which the life is re!ulated. In A.S./ara$an #s State of Andhra 3radesh Supreme 9ourt interpreted it elaboratel$ .To 9ourt BDharma embraces e#er$ t$pe of ri!hteous conduct co#erin! e#er$ aspect of life essential essential for the sustenance and welfare of the indi#idual and the societ$. Rules of Dharma are meant to Bre!ulate the indi#idual conduct . 9ourt also concluded that Bthe si!ns and s$mptoms of Dharma are that which has no room for narrow mindness (sectarianism( blind faith(C..'a#in! done for all human bein! is Dharma. Defendin! the nation is the Dharma of the soldier . In 'arendranath 1hattachar$a #s. -aliram Das 8Dead: b$ his heirs and 4rs S.9. concluded that the role of 6Dharma7 is to protect all the communit$( not a particular one. In this conne0ion the findin!s of the Ape0 9ourt is reall$ admirable. In this case some propert$ was de#oted to some 'indu Dod. The propert$ was bein! used for the 'indus onl$. 9ourt came into conclusion that the propert$ was de#oted to Dod for the purpose of establishin! Dharma

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and so the propert$ should not be used for the benefit of an$ particular communit$ or reli!ion as before Dod e#er$one is e"ual. In so man$ .ud!ements Ape0 9ourt has defined Dharma outstandin!l$. Dharma and Jurists: Salmond7s thesis that law is not mi!ht alone or ri!ht alone but a blend of both is reflected in Dharma and Rta. Salmond defines law Bas the bod$ of principles reco!nised and applied b$ the state in the adminstration of .ustice.In Ea.na#al*a we find the same reflection.The oft+"uoted definition of law b$ 'olland pro#ides us with a fairl$ comprehensi#e( satisfactor$ and wor*able basis for our present purpose and the definition is that Fa law is a !eneral rule of e0ternal human action enforced b$ a so#erei!n political authorit$F. Jud!in! b$ this definition( the whole !amut of the non+ statutor$ portion of the 'indu law was ob#iousl$ FlawF( for it contained sets of rules re!ulatin! e0ternal actions of the 'indus and these were enforced b$ the well desi!ned authorit$ throu!h the .udicial or!ans and otherwise.'indu law was not #er$ different from the modern Austinian conception. The thesis of 1entham( a Jurist of International standin! to the effect that propert$ and law were born to!ether and shall die to!ether is a half+truth.The #iew of the ancient Indian Jurists 8e.!. /arada( 1rihaspati: is more accurate and comprehensi#e and the #iew is that there are two branches of law and ad.udication( one arisin! out of propert$ 8Dhana: and the other arisin! out of #iolence 8'imsa:. B Dwipada Vyavaharascaiva. Dhana Himsa Samudbhava. 1asics of Aur Ancient 4aw: Independence of Judiciar$: In 1ritish .urisprudence *in! was abo#e law and the crown was not bound
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b$ .ustice.1ut our Dharmasatra proclaimed B Dharmat Vicalitam Hanti Nripameva Sabandhavam .Judiciar$ was adminstered b$ Dharmasastras which was be$ond the reach of the other authorities (includin! the *in!.. 4aws were e"uall$ bindin! on the So#erei!n and the So#erei!n was not abo#e the law. E#en in 1GHI( we had to declare in Article HI of our 9onstitution that Fthe State shall ta*e steps to separate the Judiciar$ from the E0ecuti#e in the public ser#ices of the StateF. 1ut our Dharmasastras were the first to realise the dire necessit$ to ma*e the Judiciar$ independent of and separate from the other or!ans and in order to secure such separation in the most effecti#e wa$( the+$ made the laws of the Dhannasastras as administered b$ the Judiciar$ be$ond the reach of the other authorities( includin! the -in!. 5ndoubtedl$ it was an outstandin! achie#ement of our ancient Indian .urisprudence as our twent$+centuries old Dharmasastras could secure such separation and independence at the dawn of ci#ili&ation. Rule of 4aw 1ritish and American .urisprudence e0tols 6rule of law7. The Dharmasastras demonstrated the utmost supremac$ of law. 1rihadarn$a*a 5panishada re#eals that Dharma is the -in! of -in!s8-hata$as$n *hartom: i.e. e#en the *in! is subordinate to the rules of law.This is also e"ualit$ before law which has been incorporated in Article 1=. /atural 4aw 61hrunhat$a78feticide: is re!arded as a heinous sin in Ri!#eda ( the oldest of the )eda. It is also re!arded as an offence a!ainst the bod$ of the women under the Smritis. It is sin a!ainst the order of the nature. Sections <1; to <1H of I39 and <J; of the 9r.3.9. has been incorporated from this #iew. The ,edical Termination of 3re!nanc$ Act(1GK1 is the impact of Dharma. Ape0
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9ourt has laid down that ri!ht to terminate pre!nanc$ as the fundamental ri!ht of women. This is nothin! but a principle of natural law. 3rocedure Established b$ 4aw %hile in modern .urisprudence we ha#e ta*en far too lon! to discard the Fliteral approachF in fa#our of Fpurposi#e approachF( our Dharmasastras ad#ocated Fpurposi#e approachF thousands of $ears a!o( e#en thou!h their re#erence for the letters of the sacred law was almost de#otional. In the celebrated te0t of 1rihaspati it was declared that F-e#alam Sastramashrit$a /a -urt$a#a 'i /irna$a( Eu*tihine )ichare Tu Dharmahanih 3ra.a$ate ( that is( decision was ne#er to be made solel$ b$ ha#in! recurse to the letters of the law( for a decision not accordin! to the reason of the law would occasion miscarria!e of .ustice. The 6due process7 has been incorporated in American 9onstitution b$ 1=th amendment and our Ape0 9ourt has established it in so man$ cases. Directi#e principle has also been concei#ed from ancient Indian .urisprudence. ?undamental Duties E#er$ dut$ imposed on one would impl$ a correspondin! ri!ht #ested in another and that the performance of dut$ b$ one would result in protection of ri!ht of that other. The Dharmashastras realised this truth almost at the dawn of human ci#ili&ation . In 1GKL fundamental dut$ was incorporated in our constitution. 4imited Do#ernment -in!7s monarch$ was BSan*usa 3rabhutwa and not B/iran*usa 3rabhutwa . -in! was ordained to consult the 9ouncil of ,insters and to act
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accordin! to the ad#ise of the ma.orit$ e#en in .udicial matter also. In India( all !o#ernment actions( contract etc. purported to be done b$ 3resident or Do#ernor. In 1ritain the practice is also same. 'uman Ri!hts and ancient Indian 9riminal Jurisprudence Aur ancient Indian 9riminal Jurisprudence placed the interest of the societ$( the communit$ or the State abo#e the interest of an indi#idual. ?or those of us who ha#e obsession for an$thin! accidental or western( reference ma$ be made to the ma0ims BInterest Republicae Supreme 4e0 ( BSalus 3opuli Suprema 4e0 ( which mean that the interest of the State( and the welfare of the 3eople( are the supreme laws.This is nothin! but protection of human ri!ht. 4ife( libert$( e"ualit$ and di!nit$ of indi#idual ha#e been !uaranteed as .udicall$ enforceable ri!hts in the 9onstitution of India b$ 'uman Ri!hts Act( 1GG< MSection ;8d:. Supreme 9ourt in ,a!anbhai Iswarbhai7 Dramaphone 9o. of India( )alsamma 3aul( 9. ,asilamani( )isa*ha( Apparel E0port 3romotion council( and Ditha 'ariharan #iew. Ancient Indian 9riminal Jurisprudence Accordin! to our Ancient Indian 9onstitutional 4aw 8RAJAD'AR,A:( two of the most important duties of the *in! 8or the state: were 8a: to punish the wron!+doer 8D5STASEA DA/DA,: and 8b: to protect and honour the !ood people 8S5JA/ASEA 35JA:. %hich was dul$ called as 6DA/DA/EETI7. In modern India also( as in #arious other 9ountries( 9riminal Justice Administration has( as its main ob.ects( ad.udication of the cases relatin! to crimes( i.e.( offences punishable b$ law( punishment of the offenders( pre#ention of such offences and protection of the people from the onslau!ht of such crimes or offences. En#ironment and Ancient Indian Jurisprudence En#ironmental+ecolo!ical .urisprudence is a post+Stoc*holm modern
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has uphold this

de#elopment in the Euro+American world. 1ut thousands of $ears a!o( re#erence for nature +and its bene#olence( was current coin in Indian hol$ law. The Athar#a )eda h$mn pra$erfull$ presses home ecolo!$( 2NJet the ,other Earth enriched b$ oceans( ri#ers( bount$ of rains and satisf$in! the entire li#in! world b$ a!ricultural products( food !rains( .uic$ fruits( help us in establishin! oursel#es on its rich part of the soil2 Ecolo!ical sensiti&ation and conscientisation of the whole communit$( blendin! reli!ious appeal with material !ains was the social process of )edic Indians to preser#e nature. The ob.ect is secular and eco+friendl$. The method is a people+oriented appeal throu!h the pra$erful process of cosmic patriotism. International Relation and Diplomac$ 4aws of war( wearin! a modern mien( are latent in the concept of Dharma Euddha. -autil$a and Smriti ha#e elaboratel$ discussed the laws of war and peace . ?rom ,ahabharata and Rama$ana we !et man$ !litterin! e0ample of diplomac$. Dood Do#ernance In Indian Ra.dharma detailed trainin! in #arious branches were pro#ided for the heir+apparent. Detailed "ualifications were also prescribed for the ministers an members of the 3arishad. In ,a$( 1G=G Dr.Ra.endra 3rasad re!retted this lacuna in the 9onstituent Assembl$. %elfare State The ancient Indian law codes would con#ince an$one that the paramount concern of the -in! and his !o#ernance was the welfare of the people. ?i#e
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dut$ of the -in! ODustas$a Dandam(Su.anas$a 3u.a(rastrara*sha( etc. In Atri Samhita it has been pointed out O7/$a$ena -osas$a 9ha Samprabidhi7. ,anu ad#ised that state will collect ta0 in such a manner .ust li*e bees collect hone$ from flower without ma*in! an$ in.ur$. If the stolen propert$ is not reco#ered then the *in! must ma*e !ood the loss to the #ictim sub.ect O-at$a$ana ( /arada 9onclusion: Dr. 3. 1. ,u*har.ee( a former 9hief Justice of the 9alcutta 'i!h 9ourt( obser#ed that Fthis oldest s$stem( older than the .urisprudence of Rome and En!land( is surprisin!l$ modern( and a lot le!al and historical scholars ha#e $et to wor* hard and lon! in this #ast field of research to e0plore and appreciate the wisdom( e0cellence and maturit$ of the 'indu .udicial s$stemF. Aur ancient .urisprudence was hi!hl$ de#eloped. It is still rele#ant and contemporar$. The present criminal .ustice s$stem has man$ points to learn from our illustrious past in the field of penolo!$. India( Indian culture has sur#i#ed so man$ times a!ainst de#astatin! in#asions onl$ for the reason that the impact of 6Dharma7 is deepl$ rooted in the societ$. Su!!estions: Applications of all these principles from our past can !o a lon! wa$ in sol#in! man$ problems of our present s$stem. It is the hi!h time we stop loo*in! towards western .urisprudence for e#er$thin! without loo*in! into our own past( which is full of *nowled!e and wisdom. In school or colle!e le#el( students should be tau!ht ancient Indian .urisprudence