From student's pen: ‘Dharma’as a Source of Law in Indian Legal Jurisprudence

Keywords:- Dharma, Indian Jurisprudence, Natural Law, Fundamental Rights, Constitutionalism

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The concept of Indian Jurisprudence from a dharmic perspective has been left largely muddled due to the ever-present information gap created between Indian jurists and an apparently “non-existing Indian version of Jurisprudence.” This condition has been brought about and left obscured due to a plethora of unfavourable conditions that prevailed in the history of India. The significance of the Lost Bharatiya Jurisprudence can only be realised after reacquainting ourselves with the lost treasure of ‘Dharma’.

Supremacy and Rule of Law (Dharma)

Sanatana Hindu philosophy places Dharma on a very high pedestal. It considers Dharma as supreme. The Taittiriya Samhita says,

धर्मो विश्वस्य जगतः प्रतिष्ठा | लोके धर्मिष्ठं प्रजा उपसर्पन्ति |

धर्मेण पापमपनुदति । धर्मे सर्व प्रतिष्ठितम् |

तस्माद्धर्मं परमं वदन्ति ||

Translation:- Dharma constitutes the foundation of all affairs in the world. People respect one who adheres to Dharma. Dharma insulates (man) against evil thoughts and actions. Everything in the world is founded on Dharma. Dharma is, therefore, considered supreme.

In simple words, 'Dharma' is defined as a duty-based legal system i.e. where every individual owes a duty towards other members of the society. Duguit said “The only right which any man can possess is the right to do his duty, his theory of Social Solidarity states that even the sovereign or the state does not stand in any special position or privilege and its existence is justified only so long as it fulfils its duty”. This conforms with the meaning and concept of Dharma but stands in contrast to the modern legal system which emphasises on rights rather than the duties.

In the Manusmruti text, Manu has explained 'Dharma' in the following verse :-

धृतिः क्षमा दमोऽस्तेयं शौचमिन्द्रियनिग्रहः ।

धीर्विद्या सत्यमक्रोधो दशकं धर्मलक्षणम् ।।

Dhruti (perseverance), Kshama (forgiveness), Dama (patience), Asteya (non-stealing), Shaucham (cleanliness), Indriya Nigraha (control of the senses), Dhi (cultivation), Vidya (knowledge), Satyam (truthfulness), Akrodha (absence of anger), these are the ten moral principles which symbolise Dharma.

After understanding the meaning of dharma, it is necessary to understand how it has evolved, and what role it played in ancient Indian Society. Before divulging into the role of Dharma as the authority and source of law, we must also elaborate on the sources of Dharma itself.

The Vedas or the Shrutis are considered to be अपौरुषेय (apaurusheya) which directly translates to having no human author; that is to say, they are eternal and ever-existing. This implies that dharma (laws) as mentioned in the Vedas are a cosmic gift, thus making it a source of Natural Law which is स्वतः प्रमाण (Swatah Pramāna - Self-evident).

The knowledge of Vedas, which are held in the position of the foundation stone of the Sanatana Hindu Society, was neither written nor passed further in a written form by any Rishi Munis (sages). The ancient Sanatana culture had a system of oral transmission of knowledge. Hence, the knowledge of dharma came to be passed on by way of speaking and hearing- the Sanskrit verbal derivative of hearing is “श्रुत” (shrut), and hence got the nomenclature “श्रुति” (shruti). The Smrutis were summarised in literary texts by knowledgeable sages by reproducing the same from their memory - the Sanskrit word for the same is "स्मृति" (smruti). In other words, the basis of the Smrutis are Shrutis themselves.

The rule of Dharma requires a suitable social and institutional arrangement. The interaction between the social order and its members that embody the principles of dharma is characterised by a “reciprocal response”. It emphasises, “maintaining the integrity of the individual consciously and actively” and makes it inherent in social order to “protect the integrity and dignity of the individual". To achieve these ends, Dharma cannot be solidified into Positive Laws. Nor can there be sole reliance on the “said and told customs” i.e. Natural Laws. There needs to be a blend, mixture and combination of Natural and positive laws for Dharma to function rightly as the authoritative law of the land. Dharma can be said to be duty-oriented, as famously iterated in the Bhagwad Gita,

कर्मण्येवाधिकारस्ते मा फलेषु कदाचन ।

मा कर्मफलहेतुर्भुः मा ते संगोऽस्त्वकर्मणि ॥

Translation:- You have a right to perform your prescribed duty, but you are not entitled to the fruits of action. Never consider yourself to be the cause of the results of your activities, and never be attached to the desire of not doing your duty.

The same principle is reflected in Immanuel Kant's theory of Categorical imperative where he stated that Human Actions should not be determined as ethical on the basis of the outcome of the action, but rather on the basis of the action itself. In other words, it is the quality of actions that determines the quality of conduct. It means human actions should be selfless, without any ulterior motive.

Applicability of Dharma in the Indian Legal System

Post-Independence, It can be stated that the Indian Constitution was promptly drafted while keeping in mind the civil liberties that every human should have. In a sense, Dharma began to be codified in response to changes in viewpoints and lifestyles. The ideals of Natural law (Dharma) were incorporated into the Constitution as fundamental rights. It has been well established that Dharma was a duty-based legal system, but the contemporary legal system is focused on rights. Of course, these rights are not absolute, they each have corresponding duties and are subject to certain limitations.

To compare the Rule of Law under ‘Dharma’ with contemporary Constitutionalism, we find that Dharmashastras can be considered as the complete constitution of our ancient Bhartiya Society while contemporary Constitutionalism represents the ancient concept of Dharma (duties), rights and justice, which balances liberty, equality and fraternity, fundamental rights of individuals, and Directive Principles of State Policy. Further, to make citizens duty-conscious, the Constitution has established the ‘Fundamental Duties’ of citizens. Our Constitutional faith in peaceful co-existence; and internationalism etc. shows our resolve to lay a strong foundation for a “Just Society” in consonance with the noble thought of- “वसुधैव कुटुम्बकम्” (The entire world itself one family).

The relationship is further evidenced by the Supreme Court's decision in Kesavananda Bharati vs State Of Kerala And Anr, in which the court developed the basic structure theory, which limits the state's amending power and holds that any statute that violates the constitution's basic structure is void. As evidenced by the case of Maneka Gandhi v. Union of India, where the Supreme Court stated in its obiter that these fundamental rights are essential principles cherished by humanity since the Vedic times, it is clear that the concept of human rights and fundamental rights were a product of dharma and the Vedic times. However, to enjoy rights and liberties, one must fulfil one's duty or dharma, whether it is pitru dharma, putra dharma, matru dharma, or Rashtra dharma (individual duty of a parent, of a son or an individual’s duty towards the state). Article 51A of the Indian constitution, which discusses the essential duties of an Indian citizen, bears a striking resemblance to this notion where legal rights are correlatives of legal duties.

The logos and mottos of Indian institutions, such as Satyameva Jayate (The Truth Shall Triumph) for the Government of India and Yato Dharmas Tato Jayah (Where There is Righteousness, There Shall Be Victory) for the Supreme Court and MCGM, reflect the deep-rooted connection between governance and Dharma .

Similarly, the broad scope of Article 21 of the Indian Constitution, which guarantees rights like dignity, liberty and privacy mirrors the all-encompassing nature of Dharma. Despite being overlooked in modern times, Dharma and its principles remain highly relevant and can effectively support the Indian legal system if properly studied and applied.

REFERENCES:-

1. Maha Narayana Upanishad 79:7, Srivaishnavis (Mar. 20, 2025), Link.
2. Willoughby, W., Review of Law in the Modern State by Léon Duguit, 14 AM. POL. SCI. REV. 504, 506 (1920), (Mar. 20, 2025), Link.
3. Manusmriti 6:92, WisdomLib (Mar. 20, 2025), Link.
4. S.V. Abhyankar, The Four Vedas, in Hindu Dharma-Sanskriti Granthmala Vol. 4, at 5 (1st ed. 2006).
5. Bhagavad Gita, Ch. II, Verse 47, Vivekavani (Mar. 20, 2025), Link.
6. Maha Upanishad, VI.72, VasudaiKatumbakam (Mar. 20, 2025), Link.
7. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461, Law Times Journal (Mar. 20, 2025), Link.
8. Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621, Indian Kanoon (Mar. 20, 2025), Link.
9. Shantanu Rathore, Thought on Dharma and Law, Symbiosis Law School, Noida, Bhavan Journal, Vol. XX No. 1, 123 (1973), Link.

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organisations, governments or institutions.

Authored by Anushree Jha, A Student of BBA-LLB (Hons.)

University of Mumbai, Thane Sub-Campus.