SEEDS ODF

MODERN
PUBLIC LAW
IN
ANCIENT INDIAN
JURISPRUDENCE
Rama Jois

IAN:
Second Edition
OS:

EASTERN BOOK COMPANY

 3344
Seeds of
Modern Public Law
in Ancient Indian
Jurisprudence
and
Human Rights-Bharatiya Values

Justice Rama Jois

of Karnataka
Formerly Judge. High Court

EASTERN BOOK COMPANY

LUCKNOw
 CONTENTS

Chapter 1
of Welfare State 1
Concept

Chapter 2
Social Control Through Law 53
State or

Chapter 3
Administrative Set up and Administrative Justice. 111

Chapter 4

Human Rights and Bharatiya Values 171

III]
 CHAPTER1

Concept of Welfare State

Traditionallythe distinction between Public Law and
Private Law is traceable to the impact of Roman Law under
which Constitutional Law, Criminal Law, and the Law
goveming religion were classified as Public Law (jus pub-
licum) and the law relating and actions
to persons, things
were classified as Private Law (jus privatum), though Pub-
lic Law part was considerably less. The existence of
in the West almost universally throughout the
monarchy
centuries caused the Westem Jurists to concentrate upon
Private Law but Public Law was waiting for its destiny, as
it were, for the emergence of the modem welfare state, so
that Government and its instrumentalities could be held to
be accountable and subject to checks.
Prof. Leon Duguit in his. concept of social solidarity
advocates the concept of a duty-based society where the
right granted to an individual is the right to perform his
duty. He sought to establish a concept of rule of law freed
from the arbitrariness of human willl. This is a commen-
dable approach which reduces the distinction between pub-
lic and private law. Men live in society as a result of the
benefit available from the complex web of services pro-
vided by the fellow-men and interdependence of human
beings is a stark reality.
In so far as India is concerned, a careful examination
of the ancient legal and Constitutional system would show
that it had established a duty based society. Its postulate
was not only the duty of individual towards the Society but
also the duty of the Ruler towards the individuals and the

1. Trangormations du droitpublic p. 3, system de politique positive, Vol. 1, p. 361.

[11
 SEEDS OF MODERN PUBLIC
2 LAW

Society. The legal system which was the same for the
whole of India, notwithstanding the existence of la
number of Kingdoms, some larger in size and others
smaller indicates that the concept of absolutist monarchie
had always been rejected and the supremacy of "Dharma
(Law) over the Kings as declared in the authoritative texts
was respected in letter and spirit. The doctrine of 'King can
do no wrong' emanating from the concept of Divine Rights
of Kings was not accepted, though the King as head of the
State was held in high esteem and people were asked to re-
spect him as God, so that he might command the respect
and the obedience of the people who were by nature God
to Dharma. At the
fearing and thereby ensure obedience
same time, Dharma Sastras impressed upon the Kings to
look upon the people as God (Praja Vishnu) and serve
them with love and reverence.
Further the individualist doctrine of Laissez-faire was
never accepted. We can clearly see the modem concept of
social control over the activities of individuals through the
instrumentality of the State was pervading the whole legal
for the good of the
system. The basic philosophy that
individuals or smaller groups
greater number, interests of
should be subordinated and sacrificed to the extent neces-
in and formed the foundation
sary, was deeply embedded
verse in
of Dharma. This aspect is evident from the
Udyoga Parva (Vidura Niti-Ch. 37-17) which reads:

"Sacrifice the interest of individual for the sake of

the family, sacrifice the interest of the family br
of the
the sake of the village, sacrifice the interest
for
village for the sake of the country and lastly the
the sake of securing Moksha (etermal bliss) of
Atma reject the World."

2. P.V. Kane, History of Dharma Shastra, Vol. I1, p. 25.

cONCEPT OF WELFARE
STATE 3

This was the ideal kept before the individuals and the
society3
We are not concemed with the last item the salvation
of the Self (Ama) as it does not concem the worldly af
fairs. But the first three principles in substance declare the
Socialist Philosophy (Samajavada) of sacrificing or subor-
dinating the interest of the individual in the interest of the
greater number of individuals i.e. the Society (Samaja).
The duties of the modem welfare State are, first, to
legislate for the purpose of ensuring social, economic and
political justice, second to provide essential services to the
Society through its departments or instrumentalities, by
way of implementing the policies and programmes as di
rected by the Constitution and the Law, thirdly to regulate
and control the activities of individuals in every relevant
sphere to sub-serve common good, and fourthly the
ensu-

ring of justice as between individual and individual and

between individual and the State through the judicial wing
of the State.
An analysis of the ancient Indian Polity would show-
that all the responsibilities, except the first which stood
determined in the form of Dharma (Law as explainee
later), evolved and developed by the people, meant to se-
cure the welfare and happiness of the people as a whole, as
also the welfare and full blossoming of individual, hac
been conceived at the earliest period known to human his
created
tory, and the instrumentality of the State was an
the King as its head was entrusted with the duty and re
sponsibility of its implementation. In other words th
Dharma (Law) constituted the blue-print or master-plan fo
the all round development of the individual and differe-
sections of the society. It therefore favourably compar
with modern Public Law, for, the duty of the ancient Indi=
State was nor only to enforce obedience to the law agair

3. MR. Kale, Hitopadesha of Narayana Mitralabha-150.

 SEEDS OF MODERN PUBLIC
LAW
individuals but also to confom to the law in all its action
for the purose of ensuring the welfare and
happiness of
the people,
and can very well be described as seeds n
Modem Public Law.
With this preface I proceed to
present an
Indian
analysis of
ancient Legal System.
Special Attribute of Man
Any study of legal system, ancient or modem, should in my
view commence from the understanding of human nature
as the legal
systems are meant for the benefit of human
beings. Lon L. Fuller in his 'Anatomy of the Law' says "In
man' s capacity to perceive and
legislate against his own
defects. we can discern his chief claim to stand clearly
above the anial level. Philosophers of fomer
ages have
indeed. not hesitated to see some kinship with the divine in
man's ability to reorder his own faulty nature and, in effect,
to recreate himself
by the nle of reason."..."To say that
man can reshape himself by nules is to confess that he is a
creature who has to put a halter on himself before he can
live safely with his fellows. If this is something no other
animal can do, it is something no other animal needs to do.
for mankind is the only species that chooses its own kind as
its preferred prey"4 - In these words Human narure has
been expounded by Fuller to the fullest extent. This is the
absolute tnuth and therefore it should be the conclusion of
any of the great thinkers about the special quality of human
beings as distinct from animals. Therefore, it is not amaz-
ing that this very aspect has been highlighted in almost
identical words by the Ancient Indian thinkers. They said:

ATETfAAIHyti aTHI7arTfy*rUITy

4. Anatomy of the Law. p. 3.

 OF WELFARE STATE
cONCEPT
Consumption of food, sleep. fear and enjoyment
of camal pleasures (reproduction) are the four
qualities which are common to human beings and
animals. The special attribute of man is, his ca-
pacity and desire to conform to Dharma (the Laws
made by him which control and regulate his natu-
ral impulses and conduct). Bereft of Dharma, man
is equal to an animal.'*5
Analysing the cause for human actions, Manu II-4 says:

There is no act of man which is free from desire:

whatever a man does is the result of impulse of
desire."
In the above verse, analysing the human instinct, Manu
states that the force behind.every action of a human being
is his desire (kama). Then the next question is what are the
natural desires of man. The natural desire of man was
found to be the desire to have camal and emotional enjoy-
ment and wealth i.e., material pleasure (artha). Artha is ex-
plained by Vatsayana as connoting material wealth such as
gold, cattle, com, including education or knowledge neces-
sary to eam wealth. The source of all evil actions of human
beings was traced to the desire for material pleasure which
n tun gave rise to conflict of interests
among individuals.
Further, it was found that the desire (kama) of human
beings could always be influenced by the other impulses
inherent in human
beings such as anger (krodha), passion
moha), greed (lobha), infatuation (mada) and enmity
matsarya). These six natural impulses were considered as
SLX enemies of man (arishadvarga), which if allowed to act
uncontrolled could instigate him to entertain evil thoughtsS
inthe mind for
fulfilling his own selfish desires and for that
purpose cause injury to others. Manu on this basis ex-
S.
Hitopadesha. Prastavika 25.
 SEEDS OF MODERN PUBLIC
LAW
plained the causes of all civil and criminal injuries inflicted
by the action one against the other vide Chapter XII, Verse
3 to 7. The opening two verses of the analysis are: es

Action which springs irom the mind, from

and from the body produces either speech
good or evil re-
sults. By action are caused various conditions of
men. Mind is the
instigator for all actions which
are connected with and
perfomed by the
Actions are of three kinds and fall underbody. ten
heads:-
MIND
(Instigator)
Sinful Mental Actions

Coveting Thinking Adherence

property what is to evil
of others undesirable doctrines

Evil Wicked
verbal
bodily
actions
actions
Speaking Attacking Carrying Talking
untruth others by tales ill
abusive against of
language others others

Taking Injuring Dlicit

what is living
not given
inter
beings course
 WELFARE STATE 7
ONCEPT OF WE

in the the idea of mens rea which

We can see analysis
crime under the modern penal law
basis of a
is the
Therefore, it is clear that while man has the inherent
control1h desires and not to ham other human
capacityto
beings,
when his desires go uncontrolled, he has also the
mischievous bensity to cause injury and misery to his
and w o m e n . This fact of human behaviour, nay
fellow men
misbehaviour, is discernible and has assumed dangerous
mist in this Twentieth Century, while human civili-
oroportions
sation has made geometrical progress scientific and other
in

fields, barbarous
misbehaviour abounds in the fom of the
worst kind of
economic exploitation and offences, terrorist
activities leading to killing of innocent persons, hijacking
of planes, persecution by certain states of certain individu-
als or classes or groups on the ground of caste or religion or
language or colour to suppress political dissent causing
untold misery and suffering. This should make man hang
his head in shame, since all the progress made by man
pales into insignificance in the face of such barbarous be-
haviour. A man would be incapable of such activities if he
is educated in the real sense of the term and thereby made
to realise his duty towàrds other human beings. This pro-
cess is described by Shankaras as 'Samskara', i.e., impart
ing good qualities and removal of defects. That itself acts
as an intemal check against evil propensities and would not
allow him to go astray and cause injury to other human be
ings. But when this does not happen, unless there are exter-
nal checks, an individual, for his own selfish ends begin to
cause harm to others. Then the man becomes an animal,
nay a demon, in human form. It is this darker side ie. Mr.
Hyde side of human nature as distinct from that of Dr.
Jekyll's side, which necessitated the creation of an external
Check in the fom of 'Dharma' (Law or rules of righteous
conduct). The State was created subsequently for its en-
1Orcement (as explained later).These became necessary as a

6. Vedanta Sutra 1, 1-4.

 SEEDS OF MODERN PUBLIC
LAW
solution to the etermal problem arising out of the natural
inhuman instinct of human beings.

Dharma Inchudes Law

At this stage, it is appropriate
explain the meanino
to
of 'Dhama'. It is
mostly misunderstood as religion. There
is no
prefix to the word Dharma n any of the Smritis or
Dhama Shastras. t is by using a prefix to the
word, that it
gets a restricted meaning as religion. But the fact
that the Sanskrit word 'Dharma' is a word of remains
the widest
import. There is no corresponding word in any other
lan-
guage. Mahabharatha contains a discussion of this
On being questioned by Yudhistira about topic.
the meaning and
scope of Dharma, Bhishma states:
*It is most difficult to define Dhama.
Dharma has
been explained to be that which
ment of
helps the uplift
living beings. Therefore that which en-
sures welfare (of living beings) is
Dharma.'7 surely
Madhavacharya, the Minister of Hakka and Bukka,
founder Kings of
on Parashara
Vijayanagar Empire, in his commentary
Smriti, has briefly and precisely
meaning of Dharma thus:- explained the

Dhama is that which

sustains and ensures
progress and welfare of all in this world and eter-
nal blis in the other
world. The Dhama is
promulgated in the form of commands
and negative i.e. Vidhi (positive
and Nishedha)'"8

7. Shantiparva, 109-9-11.
8. Parashara Dharma Samhita. edited
by Vamanasharma (1893) p. 63.
 WELFARE STATE
OE
NEPT

The wond 'Dharma' has been included in the Web-

Thind New Intemational Dictionary. Relevant portion
eads

Dhama... Civil and Criminal Law; the body of

smic principles by which all things exist; nature
)essential function; it is the nature of a stone to
hard. of fire to bun, of a tiger to be fierce, just
as it is the nature of a king to punish and to pro-
tc2) natural law; (3) moral law, justice:"
Dharma embraces every type of righteous conduct
overing every aspect of life essential for the sustenance
n welfare of the individual and the society. The Smritis
dassified such of the rules of Dharma which were purely
personal in nature as 'Achara' (conduct) and those which
were to be enforced and observed by the State as civil and
iminal law (Vyavahara Dharma) and Constitutional Law
(Raja Dharma), respectively. In this lecture, I am using the
word Dharma' to mean ordinary law (Vyavahara Dharma)
ad constitutional law (Raja Dharma).
The Aim and Force of Dharma
How, when and who propounded Dharma is not
known. Certainly
it is not the work of any one or two indi-
viduals. But the fact remains Dharma
embodying duties,
0bligations, rights, duties and liabilities of individuals cov-
erng topics in respect of which law was considered neces-
sary from time to time had been laid down in ancient India
and had been expanded to cover more and more
also topics and
modified as and when considered necessary. It can be
egarded as the product of colleotive wisdom of the ancient
Lndian society meant for
the welfare of the people and ac-
Cpled as such by the people. As observed by Fuller the
Strength of the law in the ultimate analysis lies in
ceptance. The strength of the Dharna in ancientpublie
India
10 SEEDS OF
MODERN PUBLIC
JC LLA
surely was in public acceptance. No king however
could or had questioned its authority.9 gr
great
The entire Indian philosophy including
Indian
was based on the principles of Dharma, Artha
(the polit
wealth required for enjoying life) and Kama (the materi
desi
enjoy life) call together as Trivarga, the first to
second and the third. controlling the
Five fundamental rules of Dharma for
individuals were: observance bby
Manu X 63

3rfT FYutA itafufzaftyE:

"Ahimsa (non-violence), Satya

Asteya (not coveting
(truthfulness)
the property of others),
Shoucham (purity of mind and
body) and In-
driyanigraha (control of senses) are, in brief, the
common Dharma.'"
Manu-II 224 and IV 176

frrasHt at FaTai asafiat

"For achieving welfare and happiness somne declare
Dharma and Artha are good. Others declare that
Artha and Kama are better. Still
Dharma is the best. There are others declare that
also persons whoo
declare Artha alone secures
But the correct view is that happiness."
Artha and Kama (Trivarga) aggregate of Dharma,
secure welfare and
happiness.'"

9. Anatomy of the Law, p. 47.

 STATE
CONCEPT
OF
WELFARE
11
Howeyer, the desire (Kama) and material wealth
Artha) which are Contrary to Dharma must be re
(Art
jected.
The injunction of the law was that if the desire for
wealth or pleasure were contrary to law, as laid down from
sime to time, as flowing from the five basic rules of
Dharma, it should be eschewed. Obviously, there can be no

principle than
better
this, the guidance of
for individual,
for
controlling his actions to become a better individual for the
betterment Society.
of the
The ideal of 'Rajadharma' was also to ensure the ful-
filment of Dharma, Artha and Kama. Barhasparya Sutra II-
43 propounded this principle.

The goal of polity (Rajaniti) is the fulfilment of

Dharma, Artha and Kama."
Kautilya reiterated this principle. Kamandakiya (Ch.
IV-77) after an elaborate discussion of the functions of the
State says:

"The State administered with the assistance of

sagaciousministers secures Trivarga in an endur-

ing manner.
that in-
Therefore, the goal of the State was to ensure
dividuals fulfil their desires for pleasure and enjoyment of
ife (Artha and Kama) in conformity with Dharma
and
the happiness of all. This is the same as the
thereby seecure
that the State was
pnilosophy of who
Hegel, propounded
the supreme moral and that it was only through
the State
man attains self realisation.10

Paton, Jurispnudence. (Third Edition), p. 305.

 12 SEEDS OF MODERN PUBLIC
LAW
Dharma-The Natural Law of Universal Applicatin.
n

The Law as envisaged under Dharma is Natural

Lav.
as it is the manifestation of the natural special attribute
Law
that is his desire for his and social welfare. of
man

to Fuller, natural law would embrace the According

following beliefs:
"There is an ideal system of law dictated by God.
by the nature of man, or by nature itself. This ideal
system is the same for all societies and for all pe
riods of history. Its rules can be discerned by rea-
son and reflection..."
Its fundamental tenet is an affirmation of the role
of human reason in the design and operation of le
gal institutions. It asserts that there are principles
of sound social architecture, objectively given,
and that these principles, like those of physical ar-
chitecture, do not change with every shift in the
details of the design toward which they are di-
rected.°11

In the ultimate analysis, concepts of Dharma or Natu-

ral Law, have not only a role to play in the enacting of
Laws in the most modern democratic systems but also
throw light and guide the interpretation and enforcement of
the Laws enacted in order to secure justice to the individu-
als concened. Edward S. Corwin in his address to the Na-
tional Law Institute College of Law, University of Notre
Dame has outlined the debt of American Constitutional
Law to Natural Law concepts. After referring to the views
of Cicero that "Law is the highest reason, implanted in
nature, which commands those things which ought to be
done and prohibits the reverse'". "The highest Law was
born in all the ages before any Law was written or State
wasformned." "We are by nature inclined to love mankind,
which is the foundation of law'', said thus:
"First the Natural Law is entitled by its intrinsic
excellence to prevail over any law which rests

11. Anatomy of the Law, p. 117.

 OF
WELFARE
STAT
13
ONCEPT
on human authority; Second, that Natural
solelymay be appealed to by human beings against
Law
sanctioned by human
injustice authority.
demonstrated with illustrative cases as to how
He has has influenced and moulded
Natural Law
Natural Law judicial review
nier the written Constitution ofJustice
n d e r t h e written
the United States.
Miller
He has
quoted
the view expresse. by speaking for
which reads:
Supreme Court,
themust be conceded that there are... rights in every
free Govemment beyond the control of the State.
A Govemment which recognized no such rights,
which held the lives, the liberty and the property
of its citizens subject at all times to the absolute
disposition and unlimited control of even the most
democratic depository of power, is after all but a
despotism. It is true ît is a despotism of the many,
of the majority. if you choose to call it so, but it is
none the less a despotism."
The concepts of Natural Law, Corwin pointed out,
were used by the United States' Judiciary to fill up the gap.
and observed thus:
"Of the four great doctrines of American Constitu
tional Law which the American judiciary devel
oped prior to the Civil War, three (the doctrine of
judicial review, the substantive doctrine of due
process of law, and the doctrine that the obligation
of Contracts Clause protects public contracts) are
products of the infusion of the documentary Con-
stitution with Natural Law, natural rights con-
Cepts."

Ultimately, Corwin says that the concept of Natural

Law found a home in the Due Process clause of the 14th
Amendment to the Constitution of U.S.A. namely, "that no
person shall be deprived of life, liberty or property without
aue process of law." This aspect which is discemible in the
oncept of Dharma is also incorporated in Articles 19, 21,
22 and 300-A of the Constitution of India. The concepts ot
 14 SEEDS OF MODERN
PUBLIC LAW
Dharma like Natural Law have pre-state origin and a
etemal value. They, therefore, get absorbed in the writ
Constintion and the Laws which we easily
could recog
to cog-
nise. They are also available help the shaping and
development Constitution to the judiciary by sup-
of the
plementing the law without supplanting the law.
For instance Article 19(M8) of the Constitution con-
fers on every citizen the fundamental right to carry on any
trade or business of his choice subject to reasonable re-
strictions imposed by the State as authorised by clause (6)
thereof. In the case of State of Bombay v. R.M.D.C. 12, the
respondents therein claimed that they had the fundamental
right to carry on a business of conducting prize competition
and therefore the Law which imposed levy and repetitive
tax on the activity infringed their fundamental right under
Article 19(1)%8) of the Constitution. The Suprene Court
found that the activities of the respondents were in the na-
ture of gambling and then considered the question whether
a citizen in this country could claim the fundamental right
under Article 19(1)(8) to cary on such activity. After refer-
ring profusely to the provisions of the Rigveda and the Sm-
ritis which unequivocally declared that Gambiing and Bet-
ting were the most pemicious and degrading pastimer, held
that the right conferred by Aticle 19(1)M8) did not include
the right to carry on such activities which are a menace to
Society. The constitutional validity of the law was upheld.
Similarly, our Supreme Court has been interpreting Ar-
ticle 14 (right to equality) and Article 21 (right to personal
liberty) in the light of Natural Law or Dharma.
In the case of Sunil Batra v. Delhi Administration5,
Krishna Iyer, J., speaking for the Supreme Court con-
demned the practice of keeping under-trial prisoners along
with convicts in severest tem. He said:

12. AIR 1957 SC 699.

13. AIR 1980 SC 1579 at 1583 and 1586.
 OF
WELFARE STATE 15
cONCEPT
us"Prisons are built with stones of law' and soit
ehoves the court to insist that, in the eye of law,
beh
animals, not and punish the
prisoners are persons,
devia 'guardians' of the prison system where
they go berserk and defile the dignity of the hu
they go berserk
man inmate. Prison houses are part of Indian earth
and the
and the India
Indian Constitution cannot be held at bay
by iail officials 'dressed in a little, brief authority
when Part I is invoked by a convict. For when a
prisoner is traumatized, the Constitution suffers a
shock. And when the court takes cognizance of
such violence and violation, it does, like the hound
of Heaven, 'But with unhurrying chase, and un-
perturbed pace, deliberate speed and majestic in-
stancy' follow the official offender and frown
down the outlaw adventure."
"15. To aggravate the malady, we have the fact that
a substantial number of the prisoners are under
trial who have to face their cases in court and are
presumably innocent until convicted. By being
sent to Tihar jail they are, by contamination, made
criminals a custodial perversity which violates
the test of reasonableness in Article 19 and of
faimess in Article 21. How cruel would it be if
one went to a hospital for a check up and by being
kept along with contagious cases came home witn
a new disease. We sound the tocsin that prison re-
fom is now a Constitutional compulsion and its
neglect may lead to drastic court action."
The paragraph indicates how Natural Law or Dharma
Which commands humane treatment even to those in
prison, convicted or undergoing trial, was regarded as in-
cluded in Article 21.
In the case of Air India v. Nergesh Meerza,4 while-
Striking down a service Rule made by Air India providing
Or termination of service on first pregnancy of an AAir
Hostess, as violative of Article 14 of the Constitution-
14. AIR 1981
SC 1829 at 1850.
 16 SEEDS OF MODERN PUBLIC
LAW
Murtaza Fazal Ali, J., castigated the rule in the
words: followin.
ing
Tt seenms to us that the temination of
the services
of an Air Hostess under such
circumstances is not
only a callous and cruel act but an open insult to
indian womanhood- the most sacrosanct
cherished institution. We are constrained and
to
observe that such a course of
action is extremely
detestable and abhorrent to the notions of a
civilised society. Apart from being grossly unethi.
cal, it smacks of a deep rooted sense of utter
selfishness at the cost of all human values."
Thus the Dharma or Natural Law prevailed and
the interpretation of Article 14.
shaped
I shall refer to the provision of Dharma, in my 2nd
lecture which provides for humane treatment to prisoners
and those which hold every onslaught on the body of
woman as a heinous offence.
The force of Natural Law, apart from influencing the
interpretation of law, its assertion through public opinion is
of frequent occurrence. One such instance is the amend-
ment of Section 374 of the Indian Penal Code, which en-
hanced the penalty for the offence of rape of women in po-
lice custody by police officers, when such instance became
numerous. I shall refer to a similar provision of Dharma
later.
Now I may also refer to an instance, in which Dharma
is mounting pressure currently
on the Legislature.
Brunahatya' (foeticide) i.e., killing a child in its womb is
regarded as a heinous sin in Rigveda, the oldest of the
Vedas, (Wirukta VI - 27). It is also regarded as an offence
against the body of women under the Smritis. This is
nothing but a of natural law. It is a sin against the
principle
order of nature. We find that such an act is regarded as an
offence under Sections 312 to 315 of the Indian Penal
Code. Section 382 of the Cr.P.C. provides that when a
 WELFARE STATE 17
cONCEPT OF

woman, against whom death sentence is

imposed. is
the High Court has the discretion either to
pregnant

Ostpone the execution of the

postpone death sentence
of transportation for
or to
into one
commute the death sentence
which receives its force
life. This is a salutary provision
from thenatural law, in that, the human nature considers
the of the child in the womb as atrocious. A recent
killing
instance in which
such a natural law is expressing itself in
is the conduct of certain
the forn of public opinion against
the latest innovations of medical
doctors who are misusing
The facts are. Parliament
science to make more money.
Medical Temination of
enacted an Act called "The
Pregnancy Act, 197l'. A reading of the provisions of the
unmistakably indicate that the provisions
were
Act would
of foetus only if on
intended to authorise the killing
woman the following
medical examination of a pregnant
two grounds were established:

foetus essential to save the

(i) The killing of the was

life of the mother,

(i) The killing of the foetus necessary on account

was
be bom asa
ofits deformity, as otherwise it would
which causes life
physically handicapped child and
long suffering and unhappiness to the parents bomn
all the near and dear persons and to the child
also.
has been
The misuse of this provision in a large scale
article
brought forth in a recent heart rending investigative
the Article, the
by A.K. Features, New Delhi. According to
test is being used to cause abortion if the
child in the womb
is female, even if neither of the two grounds mentioned in
the Act exist by issuing a false certificate. "Pay Rupees
Five hundred now and avoid spending Rupees Fifty thou-
sand later', that is for the marriage, the article says, is the
attractive advertisement made by some of the Doctors and
many a couple are falling a prey to this in view
of the
 18 SEEDS OF MODERN PUBLIC
LAW
social evil of 'Dowry'. Dowry is certainly anti-social
killing of foetus is criminal. Still it is being resorted to but
misusing the scientific invention and of license to b
the medical profession. A carry
paragraph ot the article reads: on

"Discrimination against women thus, begins in the

womb itself. It is now possible to predict with
almost cent per cent accuracy the sex of an unbom
child. The process is called amniocentesis by
which the sex of the foetus can be established and
abortion carried out if so desired. These tests were
initially caried out to detect genetic disorders but
now they are being blatantly misused by un-
scupulous doctors who are cashing in on the fact
that the dice is loaded heavily in favour of boys in
our society. It is estimated that between 1978 and
1982, nearly 80,000 female foetuses were aborted
after sex determination tests had shown they were
of inferior and unwanted sex"
The article also says that a Member of Parliament Mr.
Sharad Dighe, has introduced a Bill in Parliament seeking
amendment to the Medical Termination of Pregnancy Act,
1971, with the object of curbing the misuse of the amnio-
centisis test and that a similar Bill had also been introduced
in the Maharashtra Assembly. There is a proposal in these
Bills to bar such of the medical practitioners from the
Indian Medical Council, if found guilty of carrying out
such tests for finding out the sex for causing abortion. This
instance indicates that unless there is a powerful public
opinion
opinion for ensuring obedience to natural law, by
expressing itself in the form of a Statute, persons who are
greedy and after making more money, would misuse any
provision of law or any innovation of science, meant for the
good of human beings, for their detriment. We should wait
and see as to how the principle of Dharma - the Natural
Law asserts against the misconduct and prevails over
Parliament.
 WELFARE STATE 19
CONCEPT OF

Ancient India
Origin of State in
The 'State' is an association of human beings which is
brought into existence by a morally self-possessed society
its impartial agent for making its of justice
sense
to serve as
of the social life, and with
prevailin the justiciable sphere
that end in view endowed with supreme legal authority
(including the monopoly of legal force) o n condition of
with the moral standards
exercising it in strict confomity
ofthe society,15
The Soviet Legal Thought in the earlier revolutionary
dominated by Marxist formulas as re-
phase was largely
Revolution' written on the eve
stated in Lenin's "State and
State is for Marx the admin-
of the Soviet Revolution. The
which the
istrative, executive and legal machinery by
of
ruling class e n s u r e s its control over the means
class. The
and the exploitation of the working
production therefore
State is an instrument of oppression and it will
as a result
wither away once the means of production have,
classes of the world, been
of the revolution of the working
Thus,
transferred into the hands of the community16.
its mission i.e., of
according to Marx, on its fulfilling weaker sections of
of the
ensuring the end of exploitation
the State withers awaay.
the society by the stronger sections,
as to the cause for
Adirectly opposite story or history
and its necessity for all
bringing the State into existence least five thousand
times to comehas been propounded at
ancient Indian political philosophers. The Ma
years ago by discloses
habharata discourse on the topic of Rajadharma
civilization in this country
that in the very early periods of
was attached to Dharma
and it was self
great importance
individuals. Consequently, everyone was act
imposed by of any
according to Dharma and there was no necessity
ing the laws. The existence of
authority to compel obedience to
15. K.P. Mukherji, The State p. 42.
of Law in Mixed Economy, p. 7. See also
16. Freidman, The State and the Rule
a

Freidman, The Legal1Theory p. 73.

 20 SREDS OF MODERN PUBLIC
LAW
such an ideal'stateless society' is
graphically describe
the following verse: described in

'There was neither kingdom nor the king, neither

punishment nor the guilty to be punished. People
were acting according to Dharma and thereby
protecting one another."17
The above verse gives a clear picture of an ideal state.
less society, which appears to have been in existence in the
hoary past. Such a society was the most ideal for the reason
that every individual scrupulously acted according to the
rules of right conduct by the force of his own culture and
habit and not out of any fear of being punished by a power
ful superior authority like the State. Consequently there
was mutual co-operation and protection. The society was
free from the evils arising from selfishness and exploitation
by individuals. The sanction which enforced such implicit
obedience to Dharma was the faith of the people in it as
also the fear of incurring divin displeasure if Dharma was
disobeyed.
However, the ideal society so beautifully described did
not last 1long. While the faith in the efficacy and utility of
Dharma, belief în God and the god fearing attitude of peo-
ple continued to dominate the society, the actual state of
affairs gradually deteriorated. A situation arose when some
persons, out of selfish worldly desires began to flout
Dharma, and became immune to the fear of divine displea-
sure. They were infatuated by their desire for pleasure and,
prompted by their own muscle power, began to exploit and
torment the weaker sections of society for their selfish
ends. Tyranny of the strong over the weak reigned un-

17. Shaniparva 59-14.

 OF WELFARE STATE
cONCEPT 21
abated. The danger to peaceful co-existence and conse-
quent uncertainty and anxiety about the safety of life and
property of individuals, was brought about by such individ-
uals. It was as though the nule of "Matsyany ay a' (big fish
devouring the small fish) govemed the society. This situa-
tion forced the law abiding people to search for a remedy
This resulted in the discovery of the institution of king and
establishment of his authority (kingship or the State).
Kautilya who was the Prime Minister to the powerful
Magadha Emperor, Chandragupta Maurya, in his cele-
brated work on polity (Arthasastra) explains the origin of
the institution of kingship:
Kautilya, p. 22: (p. 24S)

ST-HTT qUZeNTHTT ERUY TEY HTTET TATATH:|

"People suffering from anarchy, as illustrated by

the proverbial tendency of bigger fish devouring
the smaller ones, first elected Manu, the Vaivas-
vata, to be their king, and allotted one-sixth of
grains grown and one-tenth of merchandise as
sovereign dues. Being fed by this payment, the
Kings took upon themselves the responsibility of
assuring and maintaining the safety and security of
their subjects (Yogakshemavahah) and of being
answerable for the sins of their subjects when the
principle of levying just punishrment and taxes has
been violated."
The inevitability of the instrumentality of the State to
administer the affairs of the modern complex society for
rendering service as also exercise the powers of social con-
trol, overrules the possibility of withering of the State or
affairs without the State.
 SEEDS OF MODERN FUBLK
LAw
CRasuf atin f leal Sustem:
A sns British Legal arnd Constitutional
the
em prefemed to understand the tem 'Public Systerm
udng t h Constrtutinal Law and Law as
He Sd thar if the common law ot Bntish Administrative La
were codified
w d probabv be found that Public Law ir

thrds ot the law of England. He said that contained tu

"if we want to
ogical. e must ciassity the legai system as follows".1s

The Legal System

Constit Criminal Civil

tional Law Law
Procedure
and
La
Evidence
As far as Ancient Indian
Legal system is concerned,
even in the eariiest of the Smrities
viz.,
Manusmriti,
Dharma was classified as Civil and Criminal Law
and Pro-
cedural Law (V yavahara Dharma) and Constitutional
Law
(Rajadharma). The subsequent Smrities of
Brihaspati. Narada and Katyayana exhibit aYajnavalkya,
high water
mark of the developmnent of substantive and
law. Artha Shastra written around 300 B.C.
procedural
by Kaurilva
who was the Prime Minister of one of the most
powerful
and largest empires in the history of India, had classified
the law on the above lines, and dwelt
upon Rajadharna
elsorately.
In the lecture, I am trying to uhfoId the baaic
principles
346
of constitutional law under the Ancient Legal System and
in the two following lectures, I will allude to some of the
basic principles of civil and criminal law on variety of top-
ics and the law of procedure and evidence including
administration of justice in which we can identify the seeds
of modem Public Law. D E P A R

18. Jennings, The Law and the Constinution. p. 780

ALIS
MEN
JA