Dharma and Indian legal thought, ancient and modern

1. Rta and dharma

The Vedic concept of rta is cosmic order: the regularity of seasons, of sacrifice and of moral conduct. Dharma (from the root dhr, to hold or sustain) grew out of it and came to mean the order that sustains society and the duties each person owes to keep that order. It is wider than law: it covers religion, morality, custom and positive rules. The legal part of it, vyavahara, deals with litigation and the eighteen titles of law (debts, deposits, sale without ownership, partnership, boundary disputes, assault, defamation, theft, inheritance and others).

2. Sources of dharma

The classical texts, Manu and Yajnavalkya among them, list four sources in descending order of authority:

1. Shruti: the Vedas, revealed and eternal;
2. Smriti: remembered tradition, the Dharmasutras (Gautama, Baudhayana, Apastamba, Vasishtha) and the Dharmashastras (Manu, Yajnavalkya, Narada, Brihaspati, Katyayana);
3. Sadachara: the conduct of the virtuous, i.e. approved custom;
4. Atmatushti: what is pleasing to one’s conscience.

The commentaries and digests (Mitakshara of Vijnaneshwara on Yajnavalkya, and Jimutavahana’s Dayabhaga) adapted the texts to local practice, producing the Mitakshara and Dayabhaga schools of Hindu law. Custom could override the text: the Privy Council later held that clear proof of usage outweighs the written text of the law (Collector of Madura v. Moottoo Ramalinga Sathupathy, 1868).

3. Rajadharma: the king under the law

The king was not the source of dharma but its protector. His duty (rajadharma) was to protect his subjects, punish wrongdoers through danda, and administer justice according to dharma, custom and the rules of guilds and families. A king who failed lost the claim to obedience; the texts contemplate the removal of a tyrant. This resembles the medieval European idea that the ruler is subject to a higher law, and Indian writers often cite it as a native rule of law.

Kautilya’s Arthashastra sits beside this tradition as its realist counterpart. It lists four bases of decision: dharma (sacred law), vyavahara (evidence and transactions), charitra (custom) and rajashasana (royal edict), and for practical purposes gives the royal edict the last word where they conflict. Comparing Kautilya with Austin, or the Arthashastra with Machiavelli, is a common way to show competing Indian views.

4. How dharma differs from Western natural law

• Duty before right. Western natural law since Locke speaks of natural rights; dharma speaks of duties, though duties imply corresponding claims.
• Plurality. Duty depends on varna, ashrama (stage of life) and circumstance (apad-dharma in times of distress). There is a common dharma (sadharana dharma) of non-violence, truth, non-stealing and self-control, but much of dharma is particular.
• Source. Revelation and tradition rather than reason alone; but the inclusion of conscience and good custom gives it a rational and evolving element.
• Hierarchy. The caste order embedded in the smritis is incompatible with equality under Articles 14 to 17, which is why Ambedkar burnt the Manusmriti in 1927 and why modern Indian thought separates the universal ethic of dharma from its hierarchical rules.

5. Islamic and other traditions

A full answer notes that India’s legal past is not only Hindu. Islamic law (Shari‘a) also rests on a revealed higher law, with sources in the Qur’an, Sunna, ijma (consensus) and qiyas (analogy), and the Mughal administration of justice combined it with royal regulation. Buddhist and Jain ethics contributed the idea of dhamma as a universal moral law; Ashoka’s edicts are its political expression.

6. Modern Indian thought

• Gandhi. Truth (satya) and non-violence (ahimsa) as the higher law; satyagraha as disobedience to an unjust law, openly and with acceptance of the penalty, as at the Salt March of 1930. In Hind Swaraj (1909) he criticised lawyers and courts as instruments of British rule and preferred village self-government.
• Sarvodaya. Gandhi’s name for the welfare of all, taken from his rendering of Ruskin’s Unto This Last. Vinoba Bhave’s Bhoodan (land-gift) movement began in Telangana in 1951, and Jayaprakash Narayan took the idea into politics. Both secured the surrender of dacoits in the Chambal valley (Vinoba in 1960, JP in 1972), an example of moral persuasion replacing legal coercion. The jurisprudential point is that law can rest on consent and reconciliation rather than command.
• Ambedkar. Constitutional morality must be cultivated; a democratic constitution sits uneasily on an undemocratic social order. He chose a written, rights-based, justiciable Constitution over tradition.
• Upendra Baxi (The Crisis of the Indian Legal System, 1982) wrote on the gap between official law and people’s law, and on the Supreme Court’s transformation into a court for the disadvantaged through social action litigation.
• Marc Galanter (“Why the ‘Haves’ Come Out Ahead”, 1974; Competing Equalities, 1984) analysed repeat players in litigation and the law of reservations; his Law and Society in Modern India (1989) traced the displacement of indigenous dispute settlement by a unified national law.
• Indigenous dispute settlement revived. Nyaya panchayats, Lok Adalats under the Legal Services Authorities Act, 1987, and the Gram Nyayalayas Act, 2008, attempt to bring justice to the village, though Gram Nyayalayas remain few in number.

7. Dharma in the courts today

Courts no longer apply dharma as law except where personal law or custom incorporates it, and then subject to Part III. Three lines of cases show the modern position:

• Constitutional morality over social morality. In Navtej Singh Johar v. Union of India, 2018 INSC 790, and Indian Young Lawyers Association v. State of Kerala, 2018 INSC 908 (Sabarimala), the Court held that the morality the Constitution protects is constitutional, not popular or religious, morality. This is Ambedkar’s idea turned into doctrine.
• Custom and religious practice tested by rights. In Shayara Bano v. Union of India, 2017 INSC 785, instant triple talaq was set aside by majority; Nariman J. held it manifestly arbitrary under Article 14.
• Duties. Article 51A (Fundamental Duties, added in 1976) is the closest constitutional expression of the dharma idea of duty, and courts read it into the content of rights, for example in environmental cases.

How this is examined

As a short note: “Write a note on the concept of Dharma” (2014). Cover meaning, sources, rajadharma, the contrast with Western natural law, and the modern constitutional position. In a long answer on natural law, a paragraph on the ancient Indian view earns marks for comparative coverage; in an answer on sociological jurisprudence in India, the Sarvodaya and people’s-law material fits better.