Dharma as a yardstick in Law
“Their thoughts are overpowered by greed and they see no wrong in annihilating their relatives or wreaking treachery upon friends. Yet, O Janardan why should we, who can clearly see the crime in killing our kindred, not turn away from this sin?” (Bhagavad Gita: Chapter 1, Verse 38-39), a preclude to what transpires as the great treatise on Dharma. What is Dharma anyway? And how is it even relevant today?
Book III of Kautilya’s Arthashastra states four legs of law to be: Dharma (sacred law), Vyavahara (evidence), Charitra (history) and Rajasasana (edicts of king). Shri Krishna in Gita defines Dharma to be the sacred duty ordained on an individual that conform to one’s duty of nature, or righteousness in actions, like law, it is duties and rights of individuals whose breach is termed adharma. Dharma forms the basis and an essential component in concepts of ‘varna’, ‘purusharth’, ‘ashrams’, in hindu way of life. As per which, every human in every stage of his life has certain duties to perform, such as, पुत्र धर्म, पति धर्म, स्त्री धर्म, राज धर्म, to name a few. For better comprehensibility, in Goswami Tulsidas’ Ramcharitmanas, when Shri Ram accepts Van Vaas, he remarks ‘I shall acquire as much as wealth as adherence to Dharma allows’ (Ayodhya Kaand), Dharma in the instance being- upholding the command of his father based on the promise made by him (पुत्र धऱम). According to Apastamba Dharmasutra, Dharma embodies the good qualities that are settled by agreement for all four varna by unanimity among the wise and the learned, which includes: freedom from anger, from exultation, from stinginess, from delusion, from hypocrisy, and hostility; truthfulness, moderation in eating, freedom from envy, self-effacing generosity, straightforwardness, affability, tranquility, self-discipline, peace with all created being, one who, practices these, participates the Universal Being (Prasna 1 Patala 8 Khanda 23:6)
Western philosophers like Thomas Aquinas, Aristotle have propounded the concept of Dharma as Natural Law wherein virtue and ethics arising from the inherent nature of being human as supreme in governing interaction between man and man, man and nature, where the end goal of society is to live a fulfilled life. All and sundry would agree that one of the primary purpose of law is to render justice. However, modern laws in India trace their origin to the colonial British India beginning from the Regulation Act of 1773, legislated to serve the interests of the British empire, few being- resource exploitation, intellectual and economic impoverishment of indigenous populace, promote mental slavery, set up a partial justice system that makes seeking justice expensive, esoteric and extractive, so as to be out of bounds for a common man, where the adversarial justice system established in India is concerned more with arguments and legal world play. Silver lining of the system being codification of laws, uniformity in application and rule of law.
Before the advent of modern rule of law, Dharma as a philosophy was an integral part of polity and society of Bharatvarsha. Many a institutions of modern day India like the Supreme Court of India still echo the sentiment of upholding Dharma as their motto. But can the concepts like Dharma and Natural law still find its niche in the Neo-legal world where Dharma is mostly confined to religious brawls? Therefore, I shall interpret certain Supreme Court case laws from the lens of Dharma and understand its nuances in different aspects of our lives. Either I may succeed in its correct application or it shall serve as food for thought as the questions of Draupadi on Dharma in the Kuru sabha.
First of, the case of Joseph Shine v. UOI ((2019) 3 SCC 39), which outlawed adultery as a crime under section 377 IPC but retains it as a ground for divorce. In line with hindu traditions of marriage, Saptpadi is one of the most essential rites, as per which sapt/seven conditions/promises/vows are taken before agni and other dieties in presence of family members as witness, where one of the conditions for absolute submission to the bond of marriage is abstention from adultery. Therefore, instead of outlawing adultery completely, it should be punished under breach of promise in the same breath as breach of promise to marry is punished under section 73 of the Indian Contract Act, 1872, which awards exemplary damages (Prema v. Mustak Ahmed, AIR 1987 Guj 106). Such imposition of fine on commission of adultery finds its mention in Book III of Kautilya’s Arthashastra.
The case of KM Nanavati vs. State of Maharashtra (1962 AIR 605), has confounded many a moralists who justify his deed as both a loving husband and a soldier. Religious precepts, modern laws, and morality enjoin upon a man as a husband, father and son to maintain and protect his dependents as his property as far as deemed necessary. At the same time, it is said to be the Dharma of a Kshatriya to protect, govern justly, forgive and increase his क्षेत्रफल (Mahabharata, Santi Parva Ch 121), not to attack an unarmed, weak, refugee (Sunder Kaand, Ramcharitmanas). In the aforementioned case, neither the wife of accused required any kind of protection nor was it done to uphold Kshatriya Dharma, where revenge has no place. It was culpable homicide with intent to murder without premeditation as duly held by the Apex Court.
If we don’t consciously choose to be born, to possess a body of our liking, to fall ill, so can we choose to die? Yajnavalkya Smriti notes that it is from acts of ‘Dharma’ and ‘Adharma’ which form the basis of ‘Karma’ that in turn decides ‘Bhoga’ (suffering) in an individual’s life. Additionally, Yajnavalkya Smriti mentions that it is a Sadharan Dharma (general duty) of each to not injure living beings as reflected in the Gita shloka “ahimsa parmodharma”, but does it exclude our own self? The Supreme Court in P. Rathinam v. Union of India (1994 3 SCC 394), struck down section 309 IPC as unconstitutional and irrational which decriminalised suicide attempt (overruled). Similarly, the Mental Healthcare Act, 2017 has carved out an exception within section 309 of IPC that punishes ‘attempt to suicide’ and BNS 2023 no longer retains section 309 as an offence. Apastamba Dharmasutra in Prasna 1 Patala 8 Khanda 22 notes that ‘all living creatures are abode of him who lies enveloped in matter’, in layman terms, “body is a temple in which resides the almighty himself”, which is reiterated in the shloka ‘Yatha Pinde Tatha Brahmande’ (the body is a superimposition of the Universe), which formed the basis of suicide being punished as crime in Apastamba Dharmasutra, Arthashastra. On the other hand, how important are these philosophies to someone who attempts it? For few realise the almighty and fewer see. Is all suffering our doing (karma) or are we being fed with the idea that destruction of our morals, happiness, dharma should be prioritised for the sake of fame, wealth and likes of social media which pushes us to the extreme in present state of affairs? If we are the one’s who nurture the body and so are entitled to the fruits that such possession bears, should it not be true contrariwise, for Jainism allows it as ‘Sallekhana’? Shri Krishna in Bhagwat Gita profoundly mentions that possession of the gross body is solely for the purpose of realisation and acts done in pursuance of it (tapa, dhyana, gyana which form part of ‘Sallekhana’) serve the purpose. So, if killing and its attempt is a crime, then why differentiate between other body and our own, if not for voluntary population control? After all, we are only bailees’ at best, who are obligated by law to take reasonable care of the property under our possession because a gross body without any life force is entitled to right to life, fair treatment and dignity under article 21 of the Constitution as held by the Supreme Court in Parmanand Katara v. Union of India ((1983) 4 SCC 645), so does that make it a juristic person in itself?
Over the course of centuries, yardsticks for morality and virtues have undergone substantial change, with it the extent and nature of punishments for breach/ crimes. As history would have it, Socrates was punished with death for the offence of “poisoning” young minds of Greece, so was Galileo, who was beaten to death for opposing established notions. Whips, torture, death were common forms of punishment during the medieval times. It is significant to note that disproportionate punishment had the effect of prevention and retribution, however, as mentioned in Santi Parva of Mahabharata, objective of Dharma is “Total Ahimsa”, which combines in itself not just preventive but also reformatory theory of punishment. From Apastamba Dharmasutra, we find that penance and compensation were common punishments for crimes of murder. Similarly, Kautilya in Arthashastra (Book I) prescribes Dharma of King is to protect his subjects with justice, impartiality and proportionality and Book IV requires danda by King to be exercised impartially and proportionate to guilt. The evidence of plea bargaining can be found in Valmiki’s Ramayan and Goswami Tulsidas’ Ramcharitmanas, where surrender of Ravana and remorse for his crime were deemed enough by Ram for pardon. Golden triangle in the Constitution and the ‘rarest of rare’ doctrine established by the Apex Court in Bachan Singh vs. UOI (2008 (9) SCC 161), serve the purpose of putting reformation before prevention and retribution, or is it because we have grown cold to homicides that only gruesome (whose definition is fickle as that of morality) is what engages our short attention span?
According to the social contract theory, it is by the will of people that led to the establishment of government for better governance of society, redressal of injuries and disputes. Furthermore, Ch 13 of Yajnavalkya Smriti enjoins it upon the King to look after the welfare of his subjects like a father. In consonance with ‘Rajdharma' as Shri Ram advises Bharat in Ayodhya Kaand of Ramcharitmanas, “King should be like a mouth, single entity that consumes food and drink, but it wisely nourishes and maintains all organs of the body”. However, Vedanta mining case (Orissa Mining Corporation vs. UOI, AIR 1992 ORISSA 61), Singur case (Tata Motors Ltd vs. State of West Bengal, 2017 11 SCC 601), present a stark contrast to the concept of ‘welfare state’. So, how is it that we have deviated so far away from what we intended? Book II of Kautilya’s Arthashastra attests to the fact that relocation of villages for the purpose of setting up factories to prepare commodities from forest produce was a sound practice, including reserving forests for procuring its produce. But, the question that remains is to what extent can economy take precedence over society and environment? What is the purpose of economics if not for the prosperity of the society? The power of ‘Eminent Domain’ of state is based on the maxim ‘Salus Populi Suprema Lex’, as per which land can be compulsorily acquired by the state for ‘Public Purpose’ with due ‘compensation’. In the same breath, acquisition of agricultural land for development of IGI airport in Delhi in 1956 and 1974 suggests otherwise, where the AAI had instantaneously contracted with Private companies and hotels for occupation of land, while today the general Indian public reels under effects of exorbitant airfares. Similarly, establishment of factories by Vedanta in Mettur, Tata in Bhilai, has polluted the water table and ruined soil quality, rendering clean environment a luxury than a fundamental and natural right. On that account, it is the responsibility of the state to carry out just ‘Social Impact Assessment’ before land acquisition, Yet, what general public of India gets are more legal loopholes like ex-post facto clearance and bungled EIAs. Consequently, the Supreme Court in landmark judgements of Property Owners Association vs. State of Maharashtra (4 SCC OnLine SC 3122), curbed the power of eminent domain of the state and in Vanashakti vs. UOI (25 SCC OnLine SC 1139), pronounced ex-post facto clearance as violative of article 21 of the Constitution. Still, is it justified to perennially pass the buck for problems that are our own doing? Do companies produce goods for the consumers or vice-versa? In an era where we seek instant gratification coupled with rising hedonism, as the saying goes ‘Ati Sarvatra Varjayet’ or ‘Big mouthfuls often choke’, are we not the problem?
Dharma as a philosophy has a lot to teach us about how to live and prosper, for true wealth is not confined to material glut but it is the ‘Madhya Marg’ according to Lord Buddha in whose mastery lies contentment. After all, root of adharma/vices in society lies in desires arising out of greed, lust and anger which are described by Shri Krishna in the Bhagavat Gita as the 3 gateways to destruction, and so he says to Arjuna and I Quote, “Yada Yada Hi Dharmasya, Glanir Bhavati Bharata, Abhyuthanam Adharmasya, Tadaatmaanam, Srijaamyaham, Paritranaay Saadhunaam, Vinaashaay Ch Dushkritaam, Dharmasanstha Panaarthaay, Sambhavaami Yuge Yuge“.