Role of Dharma in Ancient Indian Jurisprudence*1Introduction: T. S. Eliot wrote “Time present and time past are both present in time future”. A nation which alienates itself from its past should struggle in future. In case of India we also quite ignorant about our glorious past and in every field we want to follow the western countries blindly. We also feel pride to criticize Indian literature. We read Homer, but do not read Vyasa or Valmiki and thus could not know what a splendid confluence of literature and philosophy and all conceivable thoughts and cultural heritage was there. In its all-pervasive manifestation of human character the Mahabharata was unparallel. We read Shakespeare and other masters of western literature, but do not read Kalidas and thus could not know what a world of truth, good and beauty was created in our literature. We read Hegel, Kant, Spinoza and other western philosophies, but do not read Shankara, Ramanuja, Hemchandra or Nagarjuna or other Indian philosophies and thus could not know to what spectacular height and depth philosophy could go. The thesis of Karl Marx, one of the greatest thinkers of the world, that the economic order regulates the social order fascinated us. But we could not know that hundreds and hundreds of years before Karl Marx, our Kautilya in his Arthasastra pronounced this thesis and said "Artha Eva Pradhanah". In this context this paper is a study on the role of Dharma in ancient Indian jurisprudence and its impact on the contemporary period. In this paper first ‘Dharma’ has been defined and some salient features of ancient Indian jurisprudence have been discussed and then it has been compared with western jurisprudence. The researcher has derived light about the superb character of ancient Indian law 1 * Aparup Pakhira, LL.M 1st Semester, National University of Juridical Sciences, Kolkata. 1 Literally. 2 . Bhattacharjee. N.The purpose of law in present day and the role of dharma in ancient period was same.Kama 4. rates of interest and prices. right conduct .Moksa The guiding principle of resolving conflict between the aims and pursuit of Dharma. Justice Rama Jois and Professor M.Artha 3. Artha and Kama is that the Dharma is the principle aim of regulating the human behaviour.from the works of Justice A. M. Aims of Indian Phylosophy: Indian phylosophy discusses four fold aims of human existence--1. • French jurist Duguit called this principle as the principle of ‘social solidarity’. What is Dharma: Etymologically ‘Dharma’ is derived from the root ‘Dhri’ . that which firmly supports or upholds . • Holding men together in harmonious relationship. Principle of Dharma • The principle of Dharma is social cohesion. The behavior or external activities of any person used to be controlled by the Dharmasastras. In that sense law and dharma is synonymous .action in relation to temporal rather than spiritual pursuits. It is the principle of social cohesion. Pandit. Ancient Hindu Law laid down rules regulating profit.Dharma 2. Today law (Criminal Law) controls the external activities of mankind . The normal conduct or practice in everyday life of a general prudent person may be called as Dharma. moral and religious truth . that is ‘to hold’ . C. The property was being used for the Hindus only. In this case some property was devoted to some Hindu God.One meaning of it is the “moral values or ethics” on which the life is regulated. Rules of Dharma are meant to “regulate the individual conduct”. not a particular one. Court also concluded that “the signs and symptoms of Dharma are that which has no room for narrow mindness .To Court “Dharma embraces every type of righteous conduct covering every aspect of life essential essential for the sustenance and welfare of the individual and the society.The three Judges bench concluded that the word ‘Dharma’ has a very wide meaning . blind faith. Interpretation of Dharma by Supreme Court: Supreme Court has interpreted ‘Dharma’ appropriately. Court came into conclusion that the property was devoted to God for the purpose of establishing Dharma and so the property should not be used for the benefit of any particular community or religion as before God everyone is equal. In this connexion the findings of the Apex Court is really admirable. duties.• The central theme of Dharma is based on four principles—rights.…. In so many judgements Apex Court has defined Dharma outstandingly. Dharma and Jurists: 3 .Narayan vs State of Andhra Pradesh Supreme Court interpreted it elaborately . concluded that the role of ‘Dharma’ is to protect all the community. In A.Having done for all human being is Dharma. Defending the nation is the Dharma of the soldier”.. Kaliram Das (Dead) by his heirs and Lrs S. In Harendranath Bhattacharya vs.S.sectarianism. justice and morality. In a PIL filed by Aruna Roy and others Apex Court interpreted ‘dharma’ meaningfully . including the king. Judging by this definition.Hindu law was not very different from the modern Austinian conception.In Yajnavalka we find the same reflection. satisfactory and workable basis for our present purpose and the definition is that 'a law is a general rule of external human action enforced by a sovereign political authority'. The thesis of Bentham. a Jurist of International standing to the effect that property and law were born together and shall die together is a half-truth. Salmond defines law “as the body of principles recognised and applied by the state in the adminstration of justice. “Dwipada Vyavaharascaiva. one arising out of property (Dhana) and the other arising out of violence (Himsa).. for it contained sets of rules regulating external actions of the Hindus and these were enforced by the well designed authority through the judicial organs and otherwise. Brihaspati) is more accurate and comprehensive and the view is that there are two branches of law and adjudication.Salmond’s thesis that law is not might alone or right alone but a blend of both is reflected in Dharma and Rta. Dhana Himsa Samudbhava”.g. Laws were equally binding on the Sovereign and the Sovereign was not 4 . Basics of Our Ancient Law: Independence of Judiciary: In British jurisprudence king was above law and the crown was not bound by justice.The oft-quoted definition of law by Holland provides us with a fairly comprehensive.The view of the ancient Indian Jurists (e. Narada.Judiciary was adminstered by Dharmasastras which was beyond the reach of the other authorities .But our Dharmasatra proclaimed “Dharmat Vicalitam Hanti Nripameva Sabandhavam”. the whole gamut of the nonstatutory portion of the Hindu law was obviously 'law'. But our Dharmasastras were the first to realise the dire necessity to make the Judiciary independent of and separate from the other organs and in order to secure such separation in the most effective way. The Medical Termination of Pregnancy Act. including the King.above the law.e. Rule of Law British and American jurisprudence extols ‘rule of law’. we had to declare in Article 50 of our Constitution that 'the State shall take steps to separate the Judiciary from the Executive in the public services of the State'. Brihadarnyaka Upanishada reveals that Dharma is the King of Kings(Khatayasyn khartom) i.1971 is the impact of Dharma. The Dharmasastras demonstrated the utmost supremacy of law. It is sin against the order of the nature.C. This is nothing but a principle of natural law . It is also regarded as an offence against the body of the women under the Smritis. Apex Court has laid down that right to terminate pregnancy as the fundamental right of women. the-y made the laws of the Dhannasastras as administered by the Judiciary beyond the reach of the other authorities. Undoubtedly it was an outstanding achievement of our ancient Indian jurisprudence as our twenty-centuries old Dharmasastras could secure such separation and independence at the dawn of civilization. has been incorporated from this view. the oldest of the Veda.This is also equality before law which has been incorporated in Article 14. Natural Law ‘Bhrunhatya’(foeticide) is regarded as a heinous sin in Rigveda . Even in 1950. even the king is subordinate to the rules of law. Sections 312 to 315 of IPC and 382 of the Cr.P. Procedure Established by Law While in modern jurisprudence we have taken far too long to discard the 5 . The ‘due process’ has been incorporated in American Constitution by 14th amendment and our Apex Court has established it in so many cases. purported to be done by President or Governor. all government actions. In the celebrated text of Brihaspati it was declared that 'Kevalam Sastramashritya Na Kurtyava Hi Nirnaya. that is. King was ordained to consult the Council of Minsters and to act according to the advise of the majority even in judicial matter also. Directive principle has also been conceived from ancient Indian jurisprudence. The Dharmashastras realised this truth almost at the dawn of human civilization .'literal approach' in favour of 'purposive approach'. even though their reverence for the letters of the sacred law was almost devotional. Limited Government King’s monarchy was “Sankusa Prabhutwa” and not “Nirankusa Prabhutwa”. Yuktihine Vichare Tu Dharmahanih Prajayate” . In India. Fundamental Duties Every duty imposed on one would imply a corresponding right vested in another and that the performance of duty by one would result in protection of right of that other. our Dharmasastras advocated 'purposive approach' thousands of years ago. In 1976 fundamental duty was incorporated in our constitution. decision was never to be made solely by having recurse to the letters of the law. Human Rights and ancient Indian Criminal Jurisprudence 6 . for a decision not according to the reason of the law would occasion miscarriage of justice. contract etc. In Britain the practice is also same. adjudication of the cases relating to crimes. bounty of rains and satisfying the entire living world by agricultural products. Masilamani. juicy fruits. two of the most important duties of the king (or the state) were (a) to punish the wrong-doer (DUSTASYA DANDAM) and (b) to protect and honour the good people (SUJANASYA PUJA). C. offences punishable by law. of India. "[Jet the Mother Earth enriched by oceans. Life.Our ancient Indian Criminal Jurisprudence placed the interest of the society. But thousands of years ago. food grains. For those of us who have obsession for anything accidental or western. help us 7 . which mean that the interest of the State. In modern India also. The Atharva Veda hymn prayerfully presses home ecology. prevention of such offences and protection of the people from the onslaught of such crimes or offences. rivers. Supreme Court in Maganbhai Iswarbhai’ Gramaphone Co. Criminal Justice Administration has.e. 1993 . as its main objects. Ancient Indian Criminal Jurisprudence According to our Ancient Indian Constitutional Law (RAJADHARMA). Apparel Export Promotion council. Valsamma Paul. Which was duly called as ‘DANDANEETI’. Environment and Ancient Indian Jurisprudence Environmental-ecological jurisprudence is a post-Stockholm modern development in the Euro-American world.. liberty. and the welfare of the People. i. reverence for nature -and its benevolence. “Salus Populi Suprema Lex”. Visakha. are the supreme laws. punishment of the offenders. the community or the State above the interest of an individual. was current coin in Indian holy law.Section 2(d).This is nothing but protection of human right. and Githa Hariharan has uphold this view. equality and dignity of individual have been guaranteed as judically enforceable rights in the Constitution of India by Human Rights Act. as in various other Countries. reference may be made to the maxims “Interest Republicae Supreme Lex”. 1949 Dr. In May. International Relation and Diplomacy Laws of war. Five duty of the King –Dustasya Dandam. The object is secular and eco-friendly. Good Governance In Indian Rajdharma detailed training in various branches were provided for the heir-apparent. Kautilya and Smriti have elaborately discussed the laws of war and peace .Sujanasya Puja.Rajendra Prasad regretted this lacuna in the Constituent Assembly. are latent in the concept of Dharma Yuddha.in establishing ourselves on its rich part of the soil" Ecological sensitization and conscientisation of the whole community. Welfare State The ancient Indian law codes would convince anyone that the paramount concern of the King and his governance was the welfare of the people. If the stolen property 8 . Manu advised that state will collect tax in such a manner just like bees collect honey from flower without making any injury. etc. The method is a people-oriented appeal through the prayerful process of cosmic patriotism. wearing a modern mien. blending religious appeal with material gains was the social process of Vedic Indians to preserve nature. In Atri Samhita it has been pointed out –’Nyayena Kosasya Cha Samprabidhi’. Detailed qualifications were also prescribed for the ministers an members of the Parishad.rastraraksha. From Mahabharata and Ramayana we get many glittering example of diplomacy. B. The present criminal justice system has many points to learn from our illustrious past in the field of penology. older than the jurisprudence of Rome and England. Narada Conclusion: Dr. It is still relevant and contemporary. a former Chief Justice of the Calcutta High Court. observed that 'this oldest system. and_a lot legal and historical scholars have yet to work hard and long in this vast field of research to explore and appreciate the wisdom. students should be taught ancient Indian jurisprudence 9 . excellence and maturity of the Hindu judicial system'. Indian culture has survived so many times against devastating invasions only for the reason that the impact of ‘Dharma’ is deeply rooted in the society. India. Our ancient jurisprudence was highly developed. Mukharjee. P. which is full of knowledge and wisdom.is not recovered then the king must make good the loss to the victim subject –Katyayana . In school or college level. It is the high time we stop looking towards western jurisprudence for everything without looking into our own past. is surprisingly modern. Suggestions: Applications of all these principles from our past can go a long way in solving many problems of our present system.