THE CONCEPT OF JUSTICE OR

DHARMA IN THE INDIAN

THOUGHT AS THE FOUNDATION
OF LEGAL ORDERING:
AN ANALYTIAL STUDY

Submitted by: Supervised by:

Bijay Kumar Swain Ms.Hiranmayee Mishra
Roll No.14091C181007 Assistant Professor
Regn No.11155/92 Madhusudan Law College
Utkal University
Nasadiya Sukta-The Story Of Creation
Table Of Contents

Content Description
Introduction
Objectives of Study
Rationale of The Study
Chapter- 1 Dharma-Indian Concept
Chapter – 2 Dharma-Judicial References
Chapter – 3 Still Way to Go
Conclusion and Suggestions
Introduction
 ‘धारयतिइतिधर्म ’ The word dharma is not easily translated into the
English language. Dharma has been used in different contexts to
means different things, but it is usually understood as that principle
or law which sustains, supports or maintains (dharana) individuals as
well as the social order, and when applied beyond the context of
society to a broader universal context, it would mean that law which
sustains or maintains the world as a whole, the universe itself.

 ‘सत्याननास्तिपरोधर्म ’ There Is No Dharma (Doctrine) Higher than Truth.

in fact dharma, even in its sense of a binding rule, goes beyond the
Western notion of law. For example, we can easily speak of an unjust
law, but we can hardly speak of unjust dharma. That is because
dharma is the sacred law, invested with divine authority, for dharma
is based on the Vedas, sacred scriptures revealed by the Divine to
highly qualified sages.
Objectives Of The Study
With this background, the researcher has the following
objectives of the study:

1. To find out the Indian Concept of Dharma as the foundation of

Indian Legal System.

2. To find out the judicial references in the post Independence era

where Dharma has either been interpreted or referred in
various judgements.

3. Short Comings or improvements in our legal system and

Dharma as a reference point for future laws.
Rational Of The Study
 Jeremy Bentham’s “The greatest happiness of the greatest
number is the foundation of morals and legislation.” has
much better illustration in ‘बहुजनसुखायबहुजनहिताय’ meaning “In the
happiness of many in the benefits of many” has its root in Rig
Vedic dictum, advocated by Gatuama the Budhha and in modern
times Swami Vivekananda.
 Austin said law was “the command of a sovereign, backed
by the threat of a sanction” While in ancient India King is
driven by the supreme law that includes King himself:
‘राजधर्ामन्प्रवक्ष्यातर्यथावृत्तोभवेन्नृपः ‘िस्मािर्ंयतर्ष्टेषुसव्यवस्येन्नरातधपः
सम्भवश्चयथािस्यतसस्तिश्चपरर्ायथा’ अतनष्टंचाप्यतनष्टेषुिंधर्ंनतवचालयेि्’
I am going to expound the For this reason no one should
duties of Kings; how the Lord transgress that favourable
of Men should conduct himself, decree which the King should
how he came into existence ordain in favour of his
and how excellent success favourites, or that
accrues to him. unfavourable decree that he
should ordain against those in
his disfavour.
Rational contd...
While both The Republic of India and The Supreme Court have their
mottos rooted in Vedic philosphy
following Vedic philosophies:

‘सत्यर्ेवजायिेनानृिंसत्येनपन्थातवििोेे वयानः ‘यिोधर्मििोजय’

येनाक्रर्न्त्यरुषयोह्यासकार्ायत्रि्सतत्यस्यपरर्ं
तनधानं’

We should quest for the treasure of our own ancient knowledge that
unleashes the plethora of humanity, reason, logic, science and law
of nature under one umbrella called Dharma.
Chapter 1-Dharma Indian Concept
 ‘बहुजनसुखायबहुजनतििाय’
Dharma is deemed to be the highest ideal of human life. It deals with the
virtuous conduct of man, his duties and his relationship with religion. It is the
closest what India has to natural law and ethos, and finds its ultimate aim in
the welfare of society. It includes anything that is right, just and moral. It
originates from the Vedas and is a time immemorial concept.

 ‘धर्मएवििोिस्तिधर्ोरक्षतिरतक्षिः
िस्मािर्ोनििव्योर्ानोधर्ोििोऽवधीि्’
Dharma in contradiction to general opinion does not mean religion nor
supports any, but it is a whole body of rules and believes including in itself the
religious rights, rules of conduct and duties. Here when we talk about religious
rights or duties, it does not prefer anyone over the other but describes it for all
religions. Dharma as said by Jaimini is, “founded on the revelation which is
conducive to the welfare of the society, ordained by the great Vedas”.
Chapter 1 contd..
 Rita: Dharma is generally accepted to have been derived and supersede
from the Vedic concept of Rita, which literally meant, ’the straight line’.
Rita refers to the Law of Nature, it signifies moral laws, and based on
righteousness. When something is Rita it simply meant that thing is true,
right and nothing more.
 Dharma evolved side by side of Rita but eventually took over it as the old
concept of Rita was not able to cope and solve the issue emerging with
increasing social complexities. Dharma signifies Natural law.
 Dhrama, as been said by Justice M. Rama Jois is, “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
command”.
 Mahabhartha also contains a discussion on the issue of defining dharma.
 Dharma in words of Madhavacharya is, “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 Dhrama.”
 Dharma is primarily based on the Vedas and has many indices such as
Sruti, Smriti and moral laws (Sadachar) and governed the lives of
people in the ancient time. Dharma was a duty based legal system that is
every individual owed a duty towards other member of the society.
Chapter 2-Dharma Judicial References
 During his famous Champaran Trial, Gandhiji remarked that he disobeyed the
law not to show disrespect to British law, ‘but in obedience to higher law of our
being – the vice of conscience’, by which he meant Dharma.

 Hindu law (Dharma) started to been codified according to the changes in

outlook and lifestyles, as it was realised that ancient way should yield to
realistic approach of life in Ambujam vs T.S. Ramaswamy.

 The principles of natural law (Dharma) found its way into the constitution in
the way of fundamental rights. Right to equality, freedom of movement and
most cherish able right to life are some of the fundamental rights provided.

 But, there are ample evidences from the history of the world as well from ours
to show the misuse of power whether it been the Hitler’s Nazi or the infamous
Emergency imposed by Indira Gandhi and what followed is enough to question
the very spirit on which our constitution was founded.
Chapter 2 contd..
 ‘धर्मएवििोिस्तिधर्ोरक्षतिरतक्षिः
िस्मािर्ोनििव्योर्ानोधर्ोििोऽवधीि्’
The judiciary gave a decision in Habeas Corpus case A.D.M. Jabalpur vs
Shiv Kant Shukla which deterred the belief of people in judiciary. The
Law can be unjust but Dharma is always just.
 In this decision the personal liberties and fundamental rights were taken
away arbitrarily and the Honourable Supreme Court in not so Honourable
decision justified it for personal gains, but, soon after the mistakes were
started to be corrected.
 The fundamental rights were made absolute in famous I.C. Golaknath
case, and later the doctrine of basic structure was propounded by the
Honourable Supreme Court in Keshvananda Bharti case, law can never
be static hence absolute, else it becomes vague and useless. The doctrine
so founded have following features:
◦ Supremacy of the Constitution;
◦ Republican and Democratic form of Government;
◦ Secular character of the Constitution;
◦ Separation of powers between the legislature, executive and the
judiciary, and
◦ Federal character of the Constitution.
Chapter 2 contd..
The concept of dharma or simply dharma has been used by various
courts in helping them to arrive at decisions even by the Honourable
Supreme Court in many cases.
 Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors,
which elaborately discusses the questions related to Dharma, ‘what is
dharma?’, ‘Is Dharma same as Religion?’
 Dharma regulates the law today, by means of morality in and outside the courts
as in The Secy, Ministry Of I & B vs Cricket Association of Bengal &
ANR.
 In Dattatraya Govind Mahajan vs State of Maharashtra, the court talks
about the Dharma of the Constitution, and the karma of adjudication.
 Dharma thought to be an orthodox area, is used in the cases much unorthodox
prime facie such as rights to transgender in NLSA vs Union of India &Ors.
 The courts have interpreted articles 25 and 26, in line with Dharma, they have
said when the articles are read and religion means Dharma that is co-existence.
with welfare of others in Shirish Christian vs MM Gameti & Ors, not an
orthodox view.
 Dharma has been 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 in N. P. Amrutesh and Another vs State of
Karnataka and Others.
Chapter 3-Still Way To Go
The environmental laws must draw its inspiration from the following philosophies
from Veda and Geeta that stresses on lawful use based on the principle of
conservation rather than exploitation that leads to catastrophe.

 ईशवश्यंइें सवं , यस्तकंचजगत्यांजगि्

िेनत्यक्तेनभुञ्जीथा, र्गृधःकस्यस्तििनं
This whole circle of nature is fully pervaded by God whatever is in the universe
is under existence and control of almighty God. Renounce all that is injustice
and enjoy all that is pure delight. Don’t covet unjustly the wealth of any
creature existing.

 यावि् तियह्यत्जठरं िाविसत्वं तिेे िीनार््

अतधकंयोतभर्न्येिसिेनोेण्डर्िम ति
One must accumulate wealth as much needed to fill his stomach. If one
accumulates more than that, he is stealing; and should be punished.
Conclusion
Dharma and law as seen above may seem to be in contrast, but the ideology
Behind them is same. At large, law is a part of Dharma without disharmony
and they constitute single integrated whole. Dharma on one hand is taken to
be religious, but it is not so and the same has been approved by the
Honourable Supreme Court in many cases as pointed in above sections.
Dharma has been and is guiding our conduct, morals and laws in varying
degree. One may not find any relation between the two on the face but on a
deep analysis both are interrelated integrated whole. ‘Dharma’ is
one of the many sources of modern law and is shaping society. Hence, it can
be said that ‘dharma’ and law are closely related and interwoven. Dharma
by passing the test of time has shown its eternal character.

‘ॐसवेभविुसुस्तखनःसवेसिुतनरार्याः
सवेभद्रातिपश्यिुर्ाकतश्चे् ेु ःखभाग्भवेि्
ॐशास्तिःशास्तिःशास्तिः’