Concept of Dharma in Bharatiya Jurisprudence with Special Reference to Rule of Law

Exploring the Concept of Dharma in Bharatiya Jurisprudence with Special Reference to Rule of Law

This Article is written by Swati Sharma a student at the Faculty of Law (Delhi University). If you also want to publish your article or case interpretations/summaries, send your work to niyamskanoon09@gmail.com.

In India, law was traditionally believed to be of divine origin, rooted in the concept of Dharma. However, following Muslim and British colonization, this framework evolved, shifting from divine law to man-made law. As a result, people began associating Dharma with religion, although Dharma and religion are distinct concepts, with Dharma encompassing broader moral and ethical duties.

Rule of Law

The concept of "Rule of Law" refers to a state governed by law, rather than by the whims of a ruler. In this system, the law is considered supreme. The origin of the 'Rule of Law' is attributed to ancient Greek law, which was further developed in Western jurisprudence and incorporated into the constitutions of ancient democratic states. However, it is crucial to recognize that the origin of the Rule of Law in India lies within Bharatiya jurisprudence. 

In Bharatiya jurisprudence, the concept of law finds its roots in the Brihadaranyaka Upanishad, which dates back to the 7th-6th century BCE. The text emphasizes the importance of Dharma, or law, which can be seen in the laws that governed society before foreign invasions.

Definitions of Law

Many scholars have provided their definitions of law. For instance, Joseph Raz, in his book 'The Authority of Law: Essays on Law and Morality', outlined eight principles essential for the Rule of Law:

1. All laws should be prospective, open, and clear.
2. Law should be relatively stable
3. Laws should be guided by open, stable, clear, and general rules.
4. The independence of the judiciary must be guaranteed.
5. The principle of natural justice must be observed.
6. The courts should have review powers over the implementation of other principles.
7. The courts should be easily accessible.
8. The discretion of crime-preventing agencies should not impede the law.

Brian Tamanaha, in his work 'A Concise Guide to the Rule of Law', emphasized that both government officials and citizens must adhere to the Rule of Law, which should be clear, stable, and consistent in nature.

Dr. S. Radhakrishnan, in his 'The Principal Upanishads', observed that even kings are subordinate to Dharma, meaning that the rule of Dharma is supreme, contrary to Austin’s theory, which places the king at the top of the legal hierarchy.

Max Muller described natural law as representing legal and moral principles that guide governance, acting as a guiding principle for justice.

In the Shri A.S Narayana Deekshitulu v. State of Andhra Pradesh case, Justice K. Ramaswamy stated that true Dharma is acting selflessly for the welfare of the people, aiming to unite the nation. He also distinguished Dharma from religion, asserting that religion is enriched by visionary methodologies and theology, while Dharma grows from direct experience.

Basic Understanding of Dharma 

Rule of Dharma in Bhartiya jurisprudence traces its origin to the Brihadaranyaka Upanishad (7th–6th BCE), where the concept of Dharma as law is foundational and central to governance. This ancient understanding has influenced the Indian legal framework, emphasizing justice, fairness, and the supreme importance of Dharma in all legal proceedings

Dr. Raghu Vira clarified that Dharma is never synonymous with religion, although religion may contain elements of Dharma. He asserted that people from any religion—whether Hindu, Muslim, Christian, Jew, or Parsi—can accept Dharma. Dharma is seen as part of the liberation process, laying the foundation for humanity, guiding individuals through challenges.

In the Mahanarayana Upanishad, it is mentioned that some may think liberation comes from scriptural duties, but these are the most difficult to follow. Dharma here represents duty that, when followed, ensures the protection of everyone's rights.

According to Manusmriti, one must follow Dharma as taught by the wise, doing so willingly and not under coercion.

Origin and Sources of Dharma

The origin of Dharma is found in the Vedas, with its principles extended through the actions of scholars who preserved Vedic knowledge.

The four primary sources of Dharma are:

1. Vedas: The primary sources of Dharma, including the Rigveda, Samaveda, Yajurveda, and Atharvaveda.
2. Smritis: After the Vedas, these form the secondary foundation of Dharma and are often referred to as Dharmashastras.
3. Sadachara: This refers to observing the actions, traditions, and practices of morally excellent people.
4. Inner Conscience: The fourth source is an individual’s inner satisfaction, achieved by actions guided by Vedic principles and aligned with one’s conscience.

Attributes of Dharma

Scholars have defined several attributes of Dharma that one must adopt to become ideal or religious. These attributes should be followed by citizens, especially judicial officers and state officials, to ensure justice is upheld.

The ten main attributes of Dharma are:

1. Contentment
2. Forgiveness
3. Self-control
4. Abstention from unrighteous actions
5. Purity
6. Control of the senses
7. Wisdom
8. Knowledge
9. Truthfulness
10. Abstention from anger

Trivarga Theory

The Trivarga theory addresses disputes in society regarding the balance between Dharma, Artha (prosperity), and Kama (pleasures). Some argue that both Dharma and Artha are essential for individual peace and welfare, while others claim Dharma is superior. This theory suggests that all three elements are necessary for personal satisfaction and happiness. Similarly, in our Constitution, the Golden Triangle (Articles 14, 19, and 21) is recognized as interconnected, ensuring a balance of freedom, equality, and justice.

• Article 14: Ensures equality before the law, preventing arbitrary state actions.
• Article 19: Guarantees freedom of speech and six other freedoms, providing space for individual economic and social development.
• Article 21: Protects the right to live with dignity.

Rule of Law

The Rule of Law evolved from Western jurisprudence, Aristotle, around 350 BCE, stated in his book 'Politics' that a state should be governed by law, not rulers, and that the law should apply equally to all citizens to ensure fairness and equality.

The Magna Carta of 1215, signed by King John of England, marked a significant milestone in establishing the supremacy of law over the king, limiting the powers granted to him. English jurist Sir Edward Coke developed the modern concept of the Rule of Law in the 17th century, asserting that even the king must follow the law.

In 1885, British constitutional theorist A.V. Dicey outlined three principles of the Rule of Law:

1. Supremacy of law
2. Equality before the law
3. Predominance of legal spirit

Conclusion 

The concept of Dharma in Bharatiya jurisprudence offers a profound foundation for understanding law, justice, and governance, deeply rooted in ancient texts such as the Brihadaranyaka Upanishad. Dharma, distinct from religion, encompasses moral and ethical duties essential for the well-being of society. The Rule of Law, though influenced by Western thought, finds its origins in India's rich legal tradition, where law is seen as a guiding force for fairness, equality, and justice. By emphasizing the supremacy of Dharma, Indian jurisprudence continues to underscore the importance of ethical governance and the protection of individual rights.