Student's pen: A COMPARATIVE ANALYSIS OF DHARMASASTRA, MODERN LAW AND SOUTHERN CRIMINOLOGY IN INDIAN LEGAL EVOLUTION

REIMAGINING JUSTICE - A COMPARATIVE ANALYSIS OF DHARMASASTRA, MODERN LAW AND SOUTHERN CRIMINOLOGY IN INDIAN LEGAL EVOLUTION

ABSTRACT

The legal system in India is a real amalgamation of the indigenous tradition of Dharma Shastra which stresses upon ethical justice, social harmony, reconciliation, and the modern law which is inherited from the British colonial rule and stresses punitive measures, codified rules, and state authority. This also forms a contradiction between the spirit of law (ethical justice) and the letter of the law (strict legalism). Sunil Sondhi critiques in “Dharma Shastra and Modern Law – Letter and Spirit of Law in Indian Tradition” the over-formalism of modern law and how colonial legal structures displaced India’s indigenous justice mechanisms. This corresponds with Southern criminology which critiques western legal hegemony in postcolonial societies and thus supports justice systems grounded in the culture of those communities. It is the NALSA Model of Lok Adalat that shows the experiment in restorative justice that has worked for India through methods based on mediation and reconciliation rather than adversarial litigation. Suggestions for reforming India's legal system would involve restorative justice principles, an expansion of Lok Adalats and reduction in formalism of and decolonization regarding penal practice in India. A hybrid legal model can ensure a justice system both efficient and rooted within culture merging imports from indigenous jurisprudence with modern legal safeguards[1].

KEYWORDS

Ethical justice, Spirit of law, Western legal harmony, Restorative justice, Hybrid legal model.

1.1. INTRODUCTION

There is a certain complex mix of old jurisprudence with colonial legal structures as a part of the evolving legal system of India. On the one hand is Dharma Shastra which argues for flexibility in approach on whether it is on the moral righteousness and social harmony of restorative justice. Modern law, in contrast, refers mostly to the codified norms from British rule and state authority and penalties. This dichotomy, while on the surface appearing only nominal, marks a much deeper conflict between spirit of law (justice as an ethical and moral force) and letter of law (justice as a strict, formal system of rules and procedures).

Sunil Sondhi in his “Dharma Shastra and Modern Law – Letter and Spirit of Law in Indian Tradition” criticizes the over-formalism of modern law, showing how colonial legal structures displaced traditional Indian justice mechanisms. Issues dear to Southern criminology, which critiques Western dominance and burgeoning movement within its fold, are heard echoing here. The fusion of Dharma Shastra principles with modern legal frameworks can lead to a justice system, for example, which works efficiently and is culturally embedded and socially relevant. The article on modern law would address the weaknesses within modern law, philosophy of Dharma Shastra, insights from Southern criminology and future possibility of embedding restorative practices in India's legal framework and creating a more effective and just system.

1.2. MODERN LAW

Modern Indian law has such a heavy imprint of British colonial legal structures, which were meant for efficient administration only and did not pay any heed to the question of justice to the people. The Indian Penal Code (IPC) drafted by Lord Macaulay in 1860 has established a Western-style adversarial legal system, which is more punitive in its set-up rather than one for restorative justice. Even after independence, India has retained this rigid framework which creates severe problems of access, efficiency, and fairness in the law. One of the burning issues in modern Indian law is judicial backlog. Over 40 million pending cases mean that justice gets delayed often for years or decades, which alters the principle of justice delayed is justice denied. Another major issue is the prison system in which over 67% of inmates are undertrials, that they are not convicted, but are in prison. This unfavourable situation is very unfortunate and grossly victimizes the marginalized and economically backward sections of society, having no access to proper legal representation. The contemporary law of India ascribes a considerable amount of procedural and impersonalized character to it. Cases are often decided on grounds of technicality rather than local moral or social considerations. Victims then are mere witnesses in the process of justice; offenders are mere 'problems' to be punished; and the community is absent from the process of justice[2].

These problems indeed fit into the critiques of Southern criminology-that Western punitive legal models bring more harm than justice if imposed on postcolonial societies. Scholars such as Mark Brown and Deborah Drake argue that any legal system should be within the context of its indigenous culture and tradition rather than uncritically absorbing European legal principles, which usually fall short of accomplishing the socio-political characteristics of postcolonial nations.

1.3. DHARMA SHASTRA: A PARADIGM OF ETHICAL AND RESTORATIVE JUSTICE

Dharma Shastra, the ancient legal tradition of India, regards law as an ethical and moral force rather than a rigidly formal system of rules.

Ø More importance is given to dharma than to strict legal formalism.

Ø Encouragement represented for parish panchayats and councils for solving the disputes.

Ø Concentrates on reconciliation and restoration over punishment.

Unlike modern law that considers crime as an offense against the State, crime according to Dharma Shastra is a disruption of social harmony, underlining a person's moral accountability and rehabilitation as opposed to punitive action. It was in all respects situational, taking heed of the intent behind the act, the background of the offender, and efforts at reform. Sunil Sondhi states that modern law does not have this ethical fluidity hence many legal dispositions are devoid of social realities. This reflects on how sentencing under the penal code may disregard socio-economic circumstances, thus criminalizing poverty and marginalization without burying into the roots of crime almost closely linked with restorative justice in focusing on mending harm as opposed to simply punishing those who commit crimes. Southern criminologists insist that legal systems promote rehabilitation by enacting mediation and community participation such that outcomes benefit all involved ​ stakeholders[3].

1.3.1. Southern Criminology and the Critique of Western Legal Models

Southern criminology asks for the Global North's legal hegemony to be thrown against its own walls; the western legal models have been imposed without much consideration of the local traditions or the nature of the society into which they have found a place, resulting in the above.

Ø Inefficient judiciary, since foreign legal procedures fail to merge into the local customs.

Ø Over-reliance on incarceration, which often increases recidivism, instead of reducing crimes.

Ø Alienation in respect of law groups have to go through huge bureaucratic passages involving establishment of structures.

Mark Brown and Deborah Drake argue that penal systems imported into the Global South, particularly prisons, have mostly been failures, inciting further division within society and injustice systemically. Traditional Indigenous justice systems, including mediation and reconciliation, have proven far superior forms in many postcolonial nations compared to Western impositions of punitive systems.

1.4. SWARAJ BRIDGING TRADITION TO MODERNITY

The Swaraj-based justice system maybe creates a middle path between Dharma Shastras and modern law.

1.4.1. Swaraj-based justice incorporates the following:

Ø Lok Adalats (People's Courts) - Settling disputes through negotiation rather than litigation, reducing judicial backlog, and expediting justice.

Ø Nyaya Panchayats (Village Courts) - Minor disputes adjudicated locally, justice accessible, and culturally appropriate

Ø Restorative Justice Programs - Promoting accountability and reconciliation instead of incarceration through victim-offender mediation.

Precisely this calls for Southern criminology in terms of localized and community-centric systems of justice. Returning to Swaraj-based justice could accomplish much in the area of the failures of current Indian legal systems in judicious delays and alienation of marginalized communities.

1.5. RE-FORMULATED JUSTICE SYSTEM IN INDIA

The comparison of Dharma Shastra, modern law and Southern criminology speaks rather loudly for the immediate reformist agenda-one that holds as a first requirement the combination of traditional wisdom with modern safeguards-which such reforms must necessarily assume. It requires the above considerations and they are:

Ø Revitalizing ethical adjudication by imbuing legal judgments with the moral reasoning of Dharma Shastra.

Ø Broadening restorative justice mechanisms to limit incarceration and promote community-based approaches.

Ø Decolonization of India legal system which makes law accessible, and relevant to local communities.

Sunil Sondhi's article indicates the necessity for innovating the legal philosophy of India. The model being created in drawing inspiration from Dharma Shastra's ethical principles, Southern criminology's critiques, and Swaraj-based governance can be at the helm of a more just, humane, and culturally rooted legal system. With the progress of India as a developing global democracy, to reciprocate entry into the standards of defining justice beyond colonial punitive frames, ushering in a legal system that would truly cater to its people is the entire focus[4].

1.6. THE USE OF RESTORATIVE JUSTICE IN INDIA (NALSA MODEL)

The very spirit of restorative justice has found expression in the NALSA Model of Lok Adalats. Lok Adalats (People's Courts) constitute a contemporary variation of Dharma Shastra's community-imbued justice system, to which Mahatma Gandhi also devoted his efforts in developing a Swaraj-based legal model. Their cardinal aim, therefore, is to resolve disputes quickly by mediation, compromise, and reconciliation so that litigation through regular courts may be avoided.

1.6.1. Background

The Lok Adalat was formally recognized in the Legal Services Authorities Act, 1987. They are organized by NALSA and State Legal Services Authorities (SLSAs) to function according to principles similar to traditional Indian panchayats and following the restorative justice model advocated in Southern criminology.

1.6.2. Case Example: The NALSA-Lok Adalat Resolution of a Property Dispute

An actual case that clearly indicated the workable efficacy of restorative justice in India began with a protracted property dispute in Maharashtra that had been working its way through the regular courts for over 10 years. During the course of such protracted judicial proceedings th two brothers were fighting over ancestral land, which had led to a prolonged division in the family. There were prolonged court hearings which includes expensive legal fees and no decision was made. The reparation of family bonds as well as mental and financial well-being for all the parties involved were affected. By the time the case came up before the Lok Adalat, it had undergone the following considerations:

1. Mediation was undertaken in a neutral environment, appropriate for airing grievances by both parties.
2. One-day resolution of a compromise to secure fair division of property.
3. Reconciliation in respect of the settlement was voluntarily given by both parties which a compromise made legally binding by the court.
4. No litigation, saving time, money, and preventing further social conflict.

1.6.3. Impact of the Lok Adalat Model

1. Speedy settlement - Whereas court cases in India normally take to come to an end within the span of years or even decades, Lok Adalats tend to close the dispute within hours or days.
2. Reduced costs - Since there are no court charges, justice becomes accessible to all, above all poor and marginalized communities.
3. Restoration of relationships - Unlike the adversarial system that deepens conflict, Lok Adalats work toward healing relationships and restoring harmony.

1.6.4. Analysis from a Dharma Shastra and Southern Criminology Perspective

The NALSA-Lok Adalat model seems to search for justice in terms of Dharma Shastra, which pleads for social harmony rather than penal chastisement. In addition, it takes a Southern stance in critiquing adversarial justice models which emerged predominately from the West while fostering justice systems rooted in local cultural traditions[5]. Lok Adalats are contemporary functional forms of ancient Indian legal traditions in that they reduce the dependency on formal courts and allow for ethical and context-sensitive dispute resolutions. The model would thus be an example of how restorative justice derived from indigenous traditions can work effectively even within modern legal frameworks.

1.7. CONCLUSION AND RECOMMENDATIONS

The comparison of Dharma Shastra, modern law, and Southern criminology provides the grounds for understanding the disadvantages under the colonial Indian legal system and the possible ways to establish a justice system that is much more culturally relevant and restorative. Ancient laws which at the moment are inherited from British dominion, give priority to modern punitive measures, to codified rules, and state authority while divorcing communities from justice, giving room to inefficient judicial system and mass incarceration. Compared to such rigidities, Dharma Shastra symbolizes a flexible, ethical approach to justness, promoting reconciliation, and peaceful integration into society. Southern criminology criticizes the imposition of Western legal models on ex-colonial societies and advocates localized, community-based justice mechanisms. Legal system of India includes incorporating restorative justice principles into all legal procedures, examining the Lok Adalats and Nyaya Panchayats for extending accessible and community-based alternative dispute resolution, reducing judicial formalism and increasing emphasis on ethical adjudication and finally decolonizing penal practices in order to minimize unwarranted incarceration. A mixed model that hungers for the best of indigenous jurisprudence and legal guarantees would ensure that justice is efficient and culturally embedded.

[1] Dharma and Natural Law: An Investigation of their Influence on Ancient Indian Legal Systems, (2024), https://www.lawctopus.com/academike/dharma-and-natural-law-an-investigation-of-their-influence-on-ancient-indian-legal-systems/ (last visited Mar 16, 2025).

[2] Dharmaśāstra, Wikipedia (2025), https://en.wikipedia.org/w/index.php?title=Dharma%C5%9B%C4%81stra&oldid=1280289291 (last visited Mar 16, 2025).

[3] Ayush Verma, History and Evolution of Hindu Law, iPleaders (Oct. 30, 2024), https://blog.ipleaders.in/introduction-to-hindu-law-in-india/ (last visited Mar 16, 2025).

[4] Sunil Sondhi, The Dharmasastra and Modern Law Letter and Spirit of Law in Indian Tradition, (2024), https://papers.ssrn.com/abstract=4752424 (last visited Mar 16, 2025).

[5] Criminal Justice System in India - History, Evolution and Present Scenario [UPSC Notes], BYJUS, https://byjus.com/free-ias-prep/criminal-justice-system-in-india/ (last visited Mar 16, 2025).