THE “DHARMA” JURISPUDENCE OF THE SUPREME COURT

This article was written by Saumya Upadhyay, a student of Bharati Vidyapeeth New Law College, Pune.

“YATO DHARMA TATO JAYA”

Supreme Court is the apex court in the country. It is the highest organ in the judiciary. Supreme Court is considered to be the guardian of the Constitution. The judgments given by Supreme Court are considered to be final and of course after the Supreme Court final decision there is a possibility to approach the President of India. Generally, cases are taken to lower level court first for any verdict but if any party or organisation have problem from the decree given by court, that person or organisation can approach the High Court and from there he can approach the Supreme Court as the case may be. Not only is this but Supreme Court considered to be the final interpreter of the Constitution that’s why we call it highest Court of Appeal. Supreme Court is the guarantor of the fundamental rights of the citizen. The highest Court in the Republic of India, the Federal Court of India was established in the year 1935 under the Government of India Act, 1935. The Federal Court of India was followed by the Supreme Court. The Supreme Court strength is decided by Parliament by passing legislation.

Articles (124-147) in Part V of Indian Constitution deal with the independence, jurisdiction, powers and procedure of the Supreme Court. The Supreme Court consisted of seven judges excluding the Chief Justice when Constitution commenced, but after several years that is on 1956 this was increased to eleven, and hence after four years that is on 1960 it was made fourteen. In the year 1977 the total number of judges that was appointed was eighteen including the Chief Justice and today our guardian of the courts i.e. Supreme Court has a Chief Justice who is considered as the first among the other equal judges and is also considered as the administrative head. From a maximum possible strength of thirty-one there are currently twenty five sitting judges. A Judge of the Supreme Court can be impeached by the orders passed by President only when it has consent of majority of the members which should be two-third members present and voting. A person who has been a Judge of the Supreme Court is debarred from practicing in any court of law or before any other authority in India.

The influence of Dharma and influence to Indian legal system is evident prima facie from the logo of Supreme Court of India inscribing the words “Yato Dharma Tato Jaya” meaning “where there is Dharma, there is victory from the Bhagvad Gita a part of a popular epic “Mahabharata”. Furthermore from the ancient scriptures of Mundaka Upanishad has been inscribed in Devanagari script ”Satyameva Jayate” in which ‘satyam‘ means ‘truth’, ‘Jayate‘ means ‘victory’ and together it means “Truth Alone Will Triumph”. Dharma means justice and the national emblem and currency notes in India have Satyamev Jayate and Chakra inspired from the Ashokan pillar at Sarnath, Varanasi. It has been a question of great relevance that the Apex Court has maintained to be secular in nature though implementing principles of Dharmashastras and religious texts.

Dharma is a Sanskrit word with its origin from root ‘dhr’ meaning ‘to sustain or hold’ which we can say an Indian version of natural law describing basic common conduct of a man of common prudence and guiding the righteous code of conduct, rights duties and privileges. Dharma is ‘sanatana’ having eternal values, which is different from religion, yet many jurists have tried to define Dharma and develop their own system of law which is founded on morality and is nothing but righteous code of conduct prescribed for an orderly life in a society. The rule of law applies to all and there is a great influence of Dharma in reflecting the natural law theory and ethos. Dharma is considered to be the highest ideal of human life, a virtuous conduct of man, his duties and relationship with religion. Dharma is quite a secular term and associating it with a religion is not correct.

The concept of Dharma is omnipresent in India in all ages originating from the Dharmashastras. The sources of law from the very ancient times has been the all four Vedas amongst which the main source is the Rigveda and other being Atharveda, Samaveda, and Yajurveda and many other texts of Shrutis, Smritis , Upnishads Arthashastra etc. Dharma has been guiding people in absence of legislation and has helped to escape the state of anomie. The words quoted in the Dharmashastras like “Now that a man is this or like that, according as he acts and according as he behaves, so will he be; a man of good acts will become good, a man bad acts, bad; he becomes pure by pure deeds, bad by bad deeds and here they say that a person consists of desires, and as is his desire, so is his will; and whatever deed he does, that he will reap.” The concept of punya (merit) and pap (demerit) has dominated the minds of people to deter them with the consequences of karma and thus making them follow the right path. Ideals of Hindu jurisprudence thinkers such as Narada, Jamaini, Yagnavalka, Manu, Kautilya(Chanakya) ,Gautam, Mahavira, Kabir, Rahim, Brihaspati etc or some of the great figures in the epic such as Lord Rama, Bhisma Pitamah, Lord Krishna have set examples or idealized their characters and defined the ways of compliance to Dharma and helped people to admire them and follow their footprints from millenniums ago and hopefully guide people millenniums ahead.

“Dharmo Rakshati Rakshitah” (who shelters and defends the law the law defends and shelters)

Law is founded on Dharma and our Supreme Court is the highest organ of Indian judiciary which is considered to be the guardian of the Constitution and guarantor of fundamental rights to its citizens. The Supreme Court has time and again remarked in its judgments that Dharma has been guiding conduct, morals and laws on varying degree. The concept of Dharma signifies regularity of order universally including religion, rights and duties whereas present day law is based on reasons and not on religious aspects. The concept of welfare state, human rights, fundamental rights have their roots in Dharma inscribed in various religious texts known as Vedas, Smritis Shrutis altogether known as Dharmashastras. Dharma and law are closely related to each other, interwoven together which highlights the immortality character of Dharma after passing a test of time.

Dharma includes duties, rights, laws, conduct, virtues and right way of living. There is no single word in English or any western language which can substitute Dharma. Nevertheless many jurists and thinkers have tried to interpret Dharma but had come to the same conclusion or meaning as an inference of the definitions given by them irrespective of their different interpretations as it hard to define dharma.

The Indian legal system has undergone gradual change since time immemorial. “Rex to Lex and Lex to Rex” [King is Law to Law is King] principle was followed very much similar to Manusmriti concept of Law is the king of kings“and later during British rule adopted two methods to remove defects in existing law:

 (1) Where there was no law relating to a particular matter they applied doctrine of “justice, equity and good conscience”

(2) They started codification of laws for providing certainity, uniformity and nationality of laws. Principle of natural law followed in India like doctrine of legal bias, reasoned decisions, judicial review, and fundamental rights in the Constitution as Directive Principles of the State Policy provisions.

 Law has its roots from Dharma and therefore dharma has acted as a powerful instruments for giving justice since time immemorial and providing reasons what is right and righteous and judgments which require to be given based on principles of natural justice which require to be given in a priori method the only difference being that Dharma talks about religion and duties and Supreme Court talks about secularism and protection of rights of its citizens and Dharma has positively evolved in the form of laws and morality guiding the Supreme Court in framing obiter dicta or ratio decidendi of a case.

The principles of law are founded on many religious texts of “Dharma” knowingly or unknowingly influenced by the Hindu jurisprudence. According to a verse of Rigveda “Bahujana Hitaya , Bahujana Sukhaya” is a Sanskrit shloka meaning “For the benefit of many and for the happiness of many”. This concept or shloka truly relates to the concept of utilitarian theory propounded by Jeremy Bentham in his theory which elucidates “greatest happiness of greatest number”[1]. Moreover when there is no codified statute laws the role of principles of morality based on natural law having its origin from the ancient texts of Dharmashastras and concept of Dharma comes into force for giving rational judgments. In the judgment Ziyauddin Burhanuddin Bukari v Brijmohan Ram Das Mehra[2] case the apex court held secularism in the realm of philosophy in utilitarian terms.

The guiding force of our Dharma is law enshrined in our Constitution Magna Carta and basic principles of natural justice which is greatly into practice under the Indian legal system and Supreme Court of India.

The interpretation of Dharma has evolved and has been interpreted by the Supreme Court in many of its judgments. In Kesawananda Bharati v State of Kerala [3] and further in S. R. Bommai v Union of India[4] the court held that secularism is the basic feature of the Indian Constitution and in Maneka Gandhi v Union of India[5] Justice P.N.Bhagwati and Justice Krishna Iyer held that the word “due process” is there in Article 21 though it is not expressly mentioned but it is there impliedly. Hence, law as well procedure depriving a person of his life or liberty must be just, fair and reasonable. If either law or process or both of them are not just, fair and reasonable then the deprivation will be unlawful. This judgment by the judges was given on the basis of fundamental principles of natural law of modern times which is driven by old concept of dharma in Hindu jurisprudence. They gave the justification to the criticism faced by court time and again for religious fundamentalism and the Supreme Court in turn answered to all the questions in their landmark judgment delivered so that the faith of people in justice is retained and in A.K. Kripak v Union of India[6] Supreme Court observed that aim of rules of natural justice is to secure justice or to prevent miscarriage of justice. These rules do not supplant the law of the land but supplement it. In Manohar Joshi[7] case the Supreme Court delivered judgment on Hinduism and Hindutwa which has been debated many a times and has been receiving mixed reactions all over and held that:

“Hinduism is not a religion but a way of life which incorporates values of life and respect for all religions. The moral code of conduct in every sphere of human activity evolved in this land from most ancient times, which interalia include secularism.”

 Moreover this concept has been reiterated in Sridharan case. In Bommai’s case[8] it was held that speeches hurting or creating enmity among different sections of the society or different classes of the society on grounds of religion would have to face the fate of legal system of India and the precedent laid down in Manohar Joshi case was disregarded as it was a talk of corrupt practices under Section 123 of Representation of Peoples Act, 1951. All these judgment by both Supreme Court were swayed by the principles of dharma and dharma thus has a great role to play in giving justification to judgments and establishing peace and harmony in the society guiding righteous path or protecting the basic feature of the Constitution that is secularism. Even when many other politicians try to infringe the basic feature of secularism they have to face the music created by law and justice for social benefit, development and prosperity.

Many a times the judges quote their obiter dicta, judicial dicta, obiter ex post facto, ratio decidendi getting inspired from Dharmashastra and other ancient legal texts and thoughts in the same words or reframing or remoulding the words coming to the same meaning like the principles laid down in holy Bhagwad Gita which reads: “As a man himself sows, so he reaps; no man inherits the good or evil act of another man, the fruit is of the same quality as the action”[9]and many a times used in ‘Qui Facit Per Alium Facit Per Se’ meaning he who has done the act through others is deemed to have done by himself. The laws in India and the world have evolved as the intelligence level and society has evolved but everything has its relevance with the old Dharmashastras etc in its basics which is evident from many examples of cases dealt by the Supreme Court. Many judgments of the Supreme Court on the uncodified laws have been guided by dharma or modern day natural law for example the cases based on law of torts are decided on this principle. Furthermore the family laws and the personal laws are guided by the values rituals and traditions being followed as these are based on way of life and are very fundamental in approach which if hindered would lose its meaning and importance. The civil laws on marriages, divorce, maintenance, dowry etc are completely driven according to religion and rituals prescribed by the society or religious texts and are decided taking into account all the aspect of human life that is why our preamble states that justice should be in all sense political social and economical. The dharma has a great role to play in the Supreme Court judgments as the basis of laws are derived from it and Supreme Court is the guardian of our Constitution and guarantor of our rights and the fundamental rights derived from Magna Carta etc having relevance to the text in Dharmashastras as taught by sir William “Justice Delayed Is Justice Denied” and has continued to guide our dharma. The word enshrined in Magna Carta are “To none shall we delay, to none shall we deny, to none shall we sell justice” and what guided by Bhisma Pitamah that dharma helps in establishing justice and maintaining a peaceful and harmonious environment in the society. Dharma acts as an informal means of social control even in the present day.

The way the Supreme Court reiterates the culture of India and interpretation of Dharma in secular terms is really commendable.  It reflects true form of liberal democracy and helps to promote national integrity and concept of ‘Sarva Dharma Sambhaav’.  Rituals are not religion, but it is our fundamental duty to protect rich heritage of our composite culture and the Supreme Court has  always tried to strike a balance following the doctrine of harmonious construction.

Right to pray or right to enter religious institutions or some cases relating to the present jallikattu or sensitive issue in Ismail case have been dealt with great influence to the dharma Jurisprudence by the High Court  and Supreme Court.  It sets and example and reiterates the principle stated by Roscoe Pound that ‘Law must be static, but it should not stand still’.  Law is  dynamic and there should not be any cultural lag. A greater interest of society must be taken into account upholding the utilitarian principle and democratic value.

[1]    Understanding Jurisprudence: An Introduction to Legal Theory, Raymond Wacks Pg 60.

[2]   ‎ Ziyauddin Burhanuddin Bukari v Brijmohan Ram Das Mehra 1975 AIR 1778, 1975 SCR 453.

[3]    Kesawananda Bharati v State of Kerala (1973) 4 SCC 225.

[4]    S. R. Bommai v Union of India AIR 1994 SC 1918.

[5]    Maneka Gandhi v Union of India 1978 A.I.R. 597, 1978 S.C.R (2) 621.

[6]    A.K. Kripak v Union of India A.I.R1970S.C150, (1969) 2 S.C.C262, [1970]1 S.C.R 457.

[7]    Manohar Joshi v Union of India 1996 A.I.R 796, 1996 S.C.C (1) 169.

[8]   ‎Supra Note 4.

[9]     (Mbh. xii, 291, 22)