Dharma and Indian jurisprudence
Authored by Pavitra Somani
Keywords: Dharma, Indian Jurisprudence, Hindu Jurisprudence, Duty, Shastras, Vedas, Smrities, Manu.
“Yato dharma tato jaya”- is the saying written on the emblem of Supreme Court which means where there is Dharma, there is victory.
Dharma is said to be the duty, law or morality covering all the facets of the human life and a very strong pillar in the mythology also used by the people of the Indian society to make laws and set rules and principles for justice in the Ancient India. Supreme Court has interpreted the concept of Dharma in many ways in cases presented in front of them. This concept of Dharma has been with us since time immemorial and has been established to be the foundation of almost every different thing.
This article has been divided in to the phases. The first phase deals with the meaning and the concept of Dharma as a duty, morality. Dharma has been taken as the natural law in India and also explains the dharma as a source of law since the epic Mahabharata took place. The right doing of a thing is explained under this.
The second phase deals with the jurisprudence and the jurisprudence prevailing in India and helping the Judges and the lawyers to sharpen their logical thinking and understanding of law.
The last part deals with the relationship between the Dharma and law and jurisprudence showing the development of the same.
“Dharma” demarcated as an act of doing or the duty in different contexts according to the Hindu Jurisprudence. “Duty” is one of the most common inference taken for the word “Dharma”. This Dharma is different for different religions and connotations. Every religion establishes different duties as dharma like Jains use it to mean religious paths, Buddhists take the Cosmic Law as Dharma.
The Jurisprudence in India is amusing in its essence as the law in India emerges from various sources and various foundations making it diverse and rich in nature. Out of which the Dharma or the duty forms the foundation stone in the Indian Jurisprudence. It is the pillar of Indian Jurisprudence as it has helped in shaping the laws in India. Also dharma plays important role in making the concept of succession laws and severance laws in Hindu traditions, by laying down the principles for the same.
Meaning of Dharma
Dharma is something which ensures and sustains the welfare and the progress of the world and also relates to the eternal bliss in the other world. Dharma indicates the Natural Law. Dharma is based on Vedas in the Indian society and also has index in smriti, sadachar, sruti, etc. dharma has also been mentioned in the Mahabharata, an epic mythological story which is now followed by the Indians from a long time, also the ancient civilisation had the laws based on this making the evolution of the laws by the foundation or by the base of Dharma. The Indians therefore take Dharma to be their Natural Law.
Dharma is the set of rules of conduct duties and does not only mean the religious following. Dharma is considered to be the highest ideal of human life. It is related with the Greek “ethos” making it the aim to which society has to work up together. Dharma is everything which is just, moral, right and correct. It is considered to be an immemorial concept.
Dharma is considered to be as a ‘moral’, ‘duty’, ‘virtue’ and therefore is considered to be very important in the religions of India and especially in Hinduism.
Dharma forms one of the source and also an important source for derivation and making of laws in Indian society and therefore important base for Indian Jurisprudence.
The word Jurisprudence has been derived from jurisprudentia, a Latin word meaning knowledge of law and also its application in the society.
Jurisprudence partakes practical value, it helps in improving the Laws prevailing in the any society and also making it familiar with the people of the society so that they readily accept and adapt it.
Jurisprudence also has an educational value. The study of the law and the techniques of law given under the heading of Jurisprudence is used by the lawyers and judges for sharpening their skills and logic for arguments and decision making.
Jurisprudence is also taken as the science of law and also the systematic arrangement of the rules and procedures followed in the courts of law.
Jurisprudence is in short the grammar of law. It includes the principles of law and also delivers guidelines for the lawyers and the judges.
Relationship of Indian laws and jurisprudence with Dharma
For any government to have a strong base and support the main condition is that it should have been formed legally and in a just and fair manner. Social justice and justice under law should go hand in hand. And for attaining the justice according to the reasonable man, appropriate laws which the society willingly accepted were to be made.
In earlier times of the established India, people of the society accepted dharma to be the laws to be followed. The shastras, smritis were included according to the Dharma and also the justice is also equated with the Dharma under the Indian Laws.
Dharma establishes the foundation of multiple affairs of the society. The principles of Dharma together with the Dharma constitute rules for working of the society. In ancient India, the kings had to perform their duty which was mentioned in the Dharma Shastras and the Dharma Rajya means the rule of law and this forms the base for the Indian Jurisprudence. In Indian society Dharma also means law and morality and no society can survive without these two elements and as the society evolves, the law also evolve dynamically and therefore there is need and development of Jurisprudence. It also talks about the Danda, (which is punishment) also important to be studies under the philosophy of law and jurisprudence.
Dharma and development of jurisprudence
The development of the legal theories and the jurisprudence is based on much of the ancient Hindu ideologists. In the ancient India, the concept of law or according to the Hindu thinkers, the concept of the Dharma was stimulated from the Vedas. There are many other sources that inspired Dharma like shastras, smritis and all these sources of Dharma or law are taken as various indices of the Hindu Jurisprudence.
In the pre-colonial traditional India it was observed that the functioning of the legal process was as millennia but in this period there were very less writers who were aware and studied and wrote about the Dharma. In this period the Manu and Kautilya, the law compilers brought the notion of the dharma to be usual and general and with less complexities and ambiguities. And with the help of Dharma they devised social and moral systems for different groups.
In this medieval period of India the concept of Dharma remained same and also was connected with the Courts of law especially the Supreme Court of India. It was also established that Raj dharma and constitutional laws are to be distinguished and compared. Dharma has been used by the courts in amplifying and giving decisions on the cases presented in front of them. Also the Supreme Court also has the phrase Yato dharma tato jaya meaning where there is Dharma , there is victory in its logo expressing the importance of Dharma in the law and therefore in the study and development of law i.e. jurisprudence.
The concept of Dharma has been evolved and used by the Supreme Court and High Courts and subordinate court to solve and interpret a number of cases. Supreme Court discusses the questions on Dharma and also elaborates on the Dharma of the Constitution.
As Dharma include every aspect and facets of lives of humans, Article 21 of the Constitution giving the Right to life and personal liberty also along with the other fundamental rights helps the Constitution to cover all the facets of human rights. Article 21 has been interpreted most widely and dynamically by the jury. Also there are so many cases which depict the inter connectivity between the Articles of the Indian Constitution such as Article 14, Article 19 and the main foundation of Article 21.
Therefore it can be concluded that Dharma is the foundation and a strong pillar for making of laws and therefore developing the jurisprudence in India and also advancement in the jurisprudence and the subject of law.