DHARMA

Dharma, in concept deals with duty, religion and inseparable quality of a thing or orders i.e. virtuous conduct of
righteous man and dharma in literal sense means ‘something which sustains or upholds’ and is a Sanskrit noun
derived from root ‘dhr’. Dharma is semantic equivalent to the Greek word ‘ethos’ [1]. Dharma is the Indian version
of Natural law, how Indians perceived it in ancient society but the vision of them was very far-fetched and is praised
by many imminent personalities like Max Muller [2] Dharma in contradiction to general opinion does not mean
religion nor supports any, but it is a whole body of rules and believes including in itself the religious rights, rules of
conduct and duties. Here when we talk about religious rights or duties, it does no prefer anyone over the other but
describes it for all religions. Dharma as said by Jaimini is, “founded on the revelation which is conducive to the
welfare of the society, ordained by the great Vedas”. Dharma is primarily based on the Vedas and has many indices
such as Sruti, Smriti and moral laws (sadachar) and governed the lives of people in the ancient time. Dharma was a
duty based legal system that is every individual owed a duty towards other member of the society as Duguit says
“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 fulfills its duty.”[3], which is in direct contrast to the present day legal system which specifies rights rather than
the duties. We will see in this research project the close relation between Dharma and the current legal system.
MEANING OF DHARMA
Dharma is generally accepted to have been derived and supersede from the Vedic concept of Rita, which literally
meant, ’the straight line’. Rita refers to the Law of Nature, it signifies moral laws, and based on righteousness. When
something is Rita it simply meant that thing is true, right and nothing more. Dharma evolved side by side of Rita but
eventually took over it as the old concept of Rita was not able to cope and solve the issue emerging with increasing
social complexities. Dharma signifies Natural law. Dharma, as been said by Justice M. Rama Jois[4] is, “Dharma is
that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. The
Dharma is promulgated in the form of command”. Mahabhartha also contains a discussion on the issue of defining
dharma [5]. Dharma in words of Madhavacharya is, “It is most difficult to define Dharma. Dharma has been
explained to be that which helps the upliftment of living beings. Therefore that which ensures welfare (of living
beings) is surely Dharma. The learned rishis have declared that which sustains is Dharma.” Dharma is anything that
is right, just and moral. Dharma aims for the welfare of state and mainly, its people.
ORIGIN OF DHARMA
Dharma originated from Vedas which are Sruti (heard knowledge) and they are the supreme source of knowledge
for humans, as the narration of what is heard from the ancient priests that is Sruti and they contains narration on
everything possible ranging from military to politics to common people’s life. Its other sources are Smriti, which are
the interpretation of Vedas and four sages have propounded the dharmasastras and are called Smritikars. They are:
1. Manu
2. Yagnavalkaya
3. Brihaspati
4. Narada
The other source has been Puranas which are eighteen in number and contains information about the creation and
dynasties of god, sages and kings and detailed description of yugas. All the sources are on the same footstep and no
one has supremacy over the other.
Idea which made people adhere to the Dharma can be illustrated by one verse from Brihadaranyaka Upnishad which
is, “punyo vai punyena Karmana bhavati, Papah Papeneti”, meaning ‘everyone becomes good by good deeds and
bad by bad deeds’, in other words ‘every one reaps what he sows’ and what’s good is defined by Dharma.
FUNCTIONING OF DHARMA
Dharma is sanatana, i.e. which has eternal values; one which is neither time-bound nor space bound. The concept of
Dharma is with us from time immemorial[6]. Dharma is different from religion[7]; however they are commonly
misinterpreted to mean the same and thence used interchangeably. As the above said was distinguished by Justice J.
Hansaria in A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[8] by quoting Swami Rama’s book ‘A
Call to Humanity’ by the following words:
“Religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of direct
experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality.
Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal
shrine in the heart.”
The supremacy of Dharma can be understood from a simple point that the King was not above Dharma, he was
governed by it, and if he didn’t than the Dharmashastrakara give right to the public to revolt against such an unjust,
arbitrary and unrighteous king or government. The treaties of Manu, Kautilya and others contains many rights and

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duties of both the king and the public, and even recognised individual rights like right to private property, personal
wealth etc., which were bound by the law for interest of society at large.
DECLINE OF DHARMA AND ADVENT OF POSITIVE LAW
With the advent of Muslim rule followed by British rule, Dharma (Hindu) started losing its gloss and roots. During
Muslim rule, the place of dharma was taken by koranic teachings, though many practices remained, hence it
remained mainly untouched. But, with the onset of British rule, and their ignorance of the Indian laws had a
devastating effect on the concept of Dharma as they found no laws here to govern people and they started to fix the
issue by either importing western law or say natural law with the devices of equality, justice and good conscience or
imposing western laws by means of codification in fields where no law was offered by either the Hindu’s or
Muslim’s Natural law, teachings and customs. But the civil rights and liberties enjoyed by people were taken away.
Indians were treated ruthlessly and arbitrary suppressed in every sphere of life ranging from political to social and
economical. Indians fought back for the rights and liberties that they enjoyed before under the Law of Dharma.
During his famous Champaran trial, Gandhiji remarked that he disobeyed the law not to show disrespect to British
law, ‘but in obedience to higher law of our being – the vice of conscience’, by which he meant Dharma.
POST-INDEPENDENCE ERA
The struggle for independence was the struggle for basic rights and civil liberties that one as a basic human being
should enjoy and the same was kept in mind, while making The Constitution of India. Hindu law (Dharma) started
too been codified according to the changes in outlook and lifestyles, as it was realised that ancient way should yield
to realistic approach of life [9]. The principles of natural law (Dharma) found its way into the constitution in the way
of fundamental rights. Dharma was codified Dharma as we all know was a duty based legal system but the current
legal system became a right based one. Of course, these rights comes are not absolute that they too have certain
restrictions. Right to equality, freedom of movement and most cherish able right to life are some of the fundamental
rights provided. But, there are ample evidences from the history of the world as well from ours to show the misuse
of power whether it been the Hitler’s Nazi or the infamous Emergency imposed by Indira Gandhi and what
followed[10] is enough to question the very spirit on which our constitution was founded.
The judiciary gave a decision in Habeas Corpus case[11] on a day truly referred as ‘the black day of Indian legal
history”, which further deterred the belief of people in judiciary. In this decision the personal liberties and
fundamental rights were taken away arbitrarily and the Honourable Supreme Court in not so Honourable decision
justified it for personal gains, but, soon after the mistakes were started to be corrected. The fundamental rights were
made absolute in famous I.C. Golaknath[12] case, and later the doctrine of basic structure was propounded by the
Honourable Supreme Court in His Highness Keshvananda Bharti case[13], the attitude changed from absolute to
relative but law can never be static hence absolute, otherwise it becomes vague and useless. The doctrine thus
founded can be said to have following features [14]:
1. Supremacy of the Constitution;
2. Republican and Democratic form of Government;
3. Secular character of the Constitution;
4. Separation of powers between the legislature, executive and the judiciary, and
5. Federal character of the Constitution.
Article 21- Right To Life[15]
The article needs special mention as the Supreme Court has been interpreting this article according to the cases and
has widened the ambit many folds to cover right to livelihood[16], life is more than mere animal existence[17], right
to legal aid[18], Rights to dignity of a convict[19] and much more but does not include Right to die[20]. Article 21
is ever growing not bound by time and place. Like Dharma included every aspect and facet of human life whether
internal or external and provided a law to govern it and safe-guard; the same is been done by Article 21 with the
help of other fundamental rights. Article 21 is large and wide and has a potential to confer every basic human right
that one needs to live a life of a dignified human.
EVOLVING ‘CONCEPT OF DHARMA’
The concept of dharma or simply dharma has been used by various courts in helping them to arrive at decisions even
by the Honourable Supreme Court in many cases. One of the important cases is Shri A.S. Narayana Deekshitulu vs
State Of Andhra Pradesh & Ors[21], which elaborately discusses the questions related to Dharma, ‘what is
dharma?’, ‘Is Dharma same as Religion?’ And every answered each and every doubt. Dharma as said above is
distinct from religion. Dharma even regulates the law today, by means of morality in and outside the courts as in
the Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal & ANR.[22]. In Dattatraya
Govind Mahajan vs. State of Maharashtra [23], the court talks about the Dharma of the Constitution, and the karma
of adjudication. Dharma thought to be an orthodox area is used in the cases much unorthodox prime facie such as

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rights to transgender [24]. Dharma is been used by the courts as prestigious as Constitutional benches and used in
place and equivalent of duty and truth and even the flag contains the dharma chakra of Ashoka[25]. The courts have
interpreted articles 25 and 26, in line with Dharma, they have said when the articles are read and religion means
Dharma that is co-existence with welfare of others[26], not an orthodox view. The concept of dharma as said earlier
is fully explored in Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[27], there is a comparison between the
constitutional laws and Raja Dharma, the definition of dharma is tried to be clarified by using different verses from
everywhere, ‘Dharma in context of Rajya only means law’ and Dharma is secular or maybe the most secular. The
same view is held until now, by all the courts and is not disputed that Dharma is an eternal bliss, which has seen
many par and parcels of human life, mortals, but remained immortal.
A COMPARISON
Dharma signifies regularity of order universally accepted, it includes religion, duty, and inseparable of a quality or
an order, whereas present day law is based on reasons and does include religious aspects. Dharma is duty based
concept, however the present law focuses on rights rather than duties. Dharma in itself included morals, ethics and
righteous conduct of a man but the present system does not recognizes the moral or ethical values and rather than
conduct or motive, it now focuses on the act and the consequences. Dharma pre-supposes a supernatural and binds
together by the fear of the same supernatural but on the other hand the law is based on reasonableness and binds
through legal sanctions given by courts (human). Law in modern sense is confined to rights, legal duties etc. And
not with righteous conduct and hence, is particular in nature whereas Dharma is all pervasive and universal. The law
pre-supposes man’s idea of ‘what ought to be’ and is based on reasonableness.
The concept of welfare state, which is the nature of state today, is found to have roots in Dharma. The Human
Rights and fundamental rights have spurred from Dharma and Rig-Veda clearly shows ample evidences [28].
CONCLUSION
Dharma and law as seen above may seem to be in contrast, but the ideology behind them is same. At large, law is a
part of Dharma without disharmony and they constitute single integrated whole. Dharma on one hand is taken to be
religious, but it is not so and the same has been approved by the Honourable Supreme Court in many cases as
pointed in above sections. Dharma has been and is guiding our conduct, morals and laws in varying degree. One
may not find any relation between the two on the face but on a deep analysis both are interrelated integrated whole.
‘Dharma’ is one of the many sources of modern law and is shaping society. Hence, it can be said that ‘dharma’ and
law are closely related and interwoven. Dharma by passing the test of time has shown its eternal character.
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[1] Brereton, Joel P. (2004) “Dhárman in the Ṛgveda”. Journal of Indian Philosophy 32: 449–89.
[2] Bhavan Journal, p.123, Vol. XX, No. 1, 1973.
[3] Duguit, L., Law in the Modern State, Review by: W. W. Willoughby, The American Political Science Review,
Vol. 14, No. 3 (Aug., 1920), pp. 504-506, Published by: American Political Science Association, Article Stable
URL: http://www.jstor.org/stable/1946272
[4] Jois, M. Rama, Legal and Constitutional History of India (Vol. I), 2010, ISBN- 8175342064. Universal law
publishing co.
[5] Mahabharta says “It (dharma) is most difficult to define Dharma. Dharma has been explained to be that which
helps the upliftment of living beings. Therefore that which ensures welfare (of living beings) is surely Dharma. The
learned rishis have declared that which sustains is Dhrama.”
[6] All you need to know about Hinduism. Available at: http://history-of-induism.blogspot.in/2010/11/sanatana-
dharma.html
[7] Rajesh HimmatlalSolankiv Union of India, Through Secretary, GHC, 2011. It was held that Dharma and
Religion are two different things, is some practises are not prevalent in some religions it does not make them as
adharma and in the same manner Dharma embraces every religion. In other words, following of Dharma is secular
and not contradictory to Constitution.
[8] A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
[9] Ambujam vs T.S. Ramaswamy, AIR 1973 Delhi 46, 8 (1972) DLT 292. Codification of Hindu marriage related
laws into Hindu Marriage Act, 1955.
[10] Emergency turns 39, On June 27, 2014 by A. Mandhani, Available at: http://www.livelaw.in/emergency-turns-
39%E2%80%8F/
[11] A.D.M. Jabalpur Vs Shiv Kant Shukla, AIR 1976 SC 1207.
[12] Golak Nath v. State of Punjab, AIR 1967 S.C. 1643.
[13] His Highness Keshvananda Bharti v. State of Kerla, AIR 1973 SC 1462-63.
[14] Dhyani, S.N., “Fundamentals of Jurisprudence”, 2004. Allahabad: Central law Agency

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[15] The Constitution of India, 1950, Part III, Article 21.
[16] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[17] Kharak Singh v. State of U.P., AIR 1963 SC 1295.
[18] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.
[19] Union of India v. Bhanudas, AIR 1978 S.C. 1027.
[20] Gian Kaur v. State of Punjab, AIR 1967 SC 1257.
[21] Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
[22] Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal & ANR., 1995 AIR 1236,
1995 SCC (2) 161.
[23] Dattatraya Govind Mahajan vs. State of Maharashtra, AIR 1977 SC 915 1977 Indlaw SC 157.
[24] National Legal Services Authority v. Union of India and others, 2014 Indlaw SC 250.
[25] N. P. Amrutesh and Another v State of Karnataka and Others, 1995 Indlaw KAR 245, AIR 1995 KAR 290.
[26] Shirish Christian v Maganlal Mangaldas Gameti and others, 2012 Indlaw GUJ 2255.
[27] Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors, 1996 AIR 1765, JT 1996 (3) 482.
[28] Maneka Gandhi v. Union of India, 1978 1 SCC 248. The Supreme Court pointed out, “These fundamental
rights represents the basic values cherished by the people of this country since the Vedic times and they are
calculated to protect the dignity of the individual and create conditions in which every human being can develop his
personality to the fullest extent.”