Concept of Law and Justice in Relation To Dharma

Bharati Law Review, Jan – Mar, 2017 179
CONCEPT OF DHARMA, JUSTICE AND LAW: A STUDY

Prof.Dr. Mukund Sarda*
Basim Akhtar
Any government will have a strong basis for its survival, “if it is
founded on liberty and justice”.1 Justice under law without social
justice2, no longer has any meaning or significance.
It is no doubt that people since times immemorial hoped for
justice and its survival at all times3 and 'justice' has been the
watchword of all major social and political reform movements.
Endless and ceaseless efforts were made to abolish injustice,
tyranny and exploitation. In the common parlance justice is
equated with everything that is good, mercy, charity and truth
and other equivalent expressions. However, in the words of a
Greek thinker Thrasymachus, it cannot be defined as the interest
of the stronger.4 Justice is not an irrational idea5 and the search
for it is an eternal quest6.
Whatever is considered as 'just', according to a reasonable man is
considered as 'justice'.7 Gandhiji emphasized the need for
establishing a 'just society' which he considered; as a necessary
ideal for India's survival as an independent and vibrant nation'8 in
his concept of Ram Rajya and Swarajya which he elucidated as
follows:
 Poorest shall have an effective voice in the making of

the country;
* Principal and Dean, Faculty of Law, New Law College, Bharati Vidyapeeth
Deemed University, Pune.
 Student, Ph.D. in Law, Bharati Vidyapeeth Deemed University, Pune
1 Ranganath Mishra, CJ. in All India Judges’ Association v. Union of India, 1992
A.I.R. 165 at 177.
2 International Conference on Human Rights at Teheran, 1968.
3 JOHN CHING HSIUNG WU, CASES AND MATERIALS ON JURISPRUDENCE
(West Publishing Co. 1958).
4 COHEN & COHEN, JURISPRUDENCE AND LEGAL PHILOSOPHY 621
(Boston:Little, Brown & Co.1951).
5 E. BODENHEIMAR, JURISPRUDENCE 178 (1951).
6 HANS KOHEN, BISHIN & C.D. STONE, LAW, LANGUAGE AND ETHICS 39 (New
York 1952).
7 LORD WRIGHT, FUTURE OF COMMON LAW, at 114.
8 M.S. DESHPANDE, LIGHT OF INDIA: MESSAGE OF MAHATMA 172 (Wilco
Publishing House 1956).
Published in Articles section of www.manupatra.com

 No distinction/existence of rich and the poor;
 All communities shall live in peace;
 No curse of untouchability or curse of intoxicating

drugs or drinks; and
 Women shall enjoy the same rights j as men. Nehru
highlighted the need for 'social justice', and "only
through social justice, chronic poverty in India will be
solved...; ending of poverty, ignorance, disease and
inequality of opportunity to wipe every tear from every
eye".9
In ancient Indian society, law and dharma were not distinct
concepts. In dharma Sastras, Smrities and Arthasastra, the
concept of justice, law and religion were not distinguished and
invariably justice was equated to dharma and vice-versa.10 The
Mosaic Law of Israel considered law and justice as inextricably
inter-woven11 and justice' is considered as a distinct segment of
morality to which law must conform12.
Stammler13 classified the principles of justice in two categories:
 principles of respect
 principles of participation
Respect for human person and means of participation shall be
ensured and no one shall be subjected to arbitrary will another
and no member shall be arbitrarily excluded from the legal
community. John Rawls14 proposed a general concept of justice in
these terms:
“All social primary goods-liberty and opportunity, income and
wealth, and the basis of self-respect are to be distributed
equally, unless an unequal distribution of any or all of these
goods is to the advantage of the least favoured.”
9 V.R. KRISHNA IYER, HUMAN RIGHTS AND THE LAW (Indore: Ved Pal Law
House 1994).
10 N.C. SEN GUPTA, EVOLUTION OF ANCIENT INDIAN LAW 336 (Calcutta
1954).
11 JULIUS STONE, HUMAN LAW AND HUMAN JUSTICE, p. 22.
12 H.L.A. HART, THE CONCEPT OF LAW 152, 153 (1972).
13 Supra note 3, at 499, 500.
14 DAVID MILLER, SOCIAL JUSTICE 40 (1976). See also JOHN RAWLS, A
THEORY OF JUSTICE 103 (Oxford 1972).

To establish justice in the world is to destroy the bad and the evil,
to stop the strong exploiting the weak, to develop knowledge and
welfare of the people.15 Verily that which is justice is truth16 and
the law is a means to an end and justice is that end.”17
A knowledge-based society is basis to social justice18 and to serve
mankind is service to God, and thus concept of service becomes a
national ideal19. It is therefore, necessary that every rule must
promote which is good to people. In the happiness of the subject
lies the king's happiness, in their welfare his welfare. What
pleases himself, the king shall not consider good but whatever
pleases his subjects the king shall consider good.20 This is
conveyed in unequivocal terms by Bentham as: "The public good
ought to be the object of the legislator; general utility ought to be
the foundation of his reasoning. To know the true good of the
community is what constitutes the science of legislation, the art
consists in finding the means to realize that good".21 Dharma is a
special attribute of man. Bereft of dharma, man is equal to
animal.22. The Vedas are considered as the 'first source of
dharma'.23 Dharma constitutes the foundations of all affairs in
the world. Everything in this world is founded on dharma and it
is therefore, considered 'supreme'.24 Commandants of dharma
like nature's laws, admit of no meddling.25
It has been emphasized that those who exercise political power
must wear the hand glove of dharma and 'principles of dharma
governs every sphere of activity including governance of the
country26. The duty of the king was clearly defined in Dharma
Sastras and for violation, the king becomes unlit to rule27 and
Dharma Rajya means 'rule of law'. King respected by the people
only if he acted according to law (dharma). Rules of dharma not
alterable according to whim and fancy of the king and it were
essential that the exercise of political power must be in conformity
15 The great King of Babylon (2124-2083 BC) proclaimed!

16 THE UPANISHAD.
17 Krishna Iyer, J. in All India Judges’ Association v. Union of India, 1992 A.I.R.
1992 176.
18 Mohini Jain v. Stale of Karnataka, (1992) 3 S.C.C. 666. See also Unni
Krishnan v. State of A.P., (1993) 1 S.C.C. 645.
19 K.L. SARKAR, TAGORE LAW LECTURES 437, 438 (1905).
20 KAUTILYA, ARTHA SASTRA, p. 39.
21 UPENDRA BAXI, BENTHAN’S THEORY OF LEGISLATION, p. 1.
22 HITOPADESHA PRASTAVIKA, p. 25.
23 M. RAMA JOIS, I LEGAL AND CONSTITUTIONAL HISTORY OF INDIA, p. 1.
24 MAHANARAYANOPANISHAT.
25 K.R. SRINIVASA IYENGAR, SITAVANA, pp. 166, 167.
26 FREDRICK MAX MULLER, INDIA: WHAT CAN IT TEACH US, p. 6.
27 R.C. MUJUMDAR, ANCIENT INDIA, pp. 154,155.

with dharma-an essential aspect of governance. This is what is

meant by 'rule of law' in the present day context. According to Dr.
S. Radhakrishnan: "Dharma righteousness is the king of kings. It
is the ruler of both the people and the ruler themselves. It is the
sovereignty of the law”.28 Dharma in Indian tradition also stands
for law and morality and no state can be devoid of law and
morality.29 Dharma is right action; dharma or virtue is
conformity with the truth of things.30 Dharma protects those who
protect it and those who destroy it get destroyed31 and the entire
concept of rule of law is incorporated in Dharma.32 According to
K.M. Panikkar, the king's coronation ceremony is a diksha-
devoting his life to the cause (service of the people).33 Support to
the king depended on king conforming to dharma or justice.34
The first legal code of Hindus enshrines both philosophy of life
and of law with special stress on morality, danda (punishment)
and justice.35 Justice is a moral state.36 Gandhiji observed: "My
soul refuses to be satisfied so long as it is a helpless witness of a
single wrong."37
Friedmann observed: "The tale of natural law is the search of
mankind for absolute justice and of its failure". Legal justice i.e.,
according to law has several inadequacies and fails to meet, what
and justice in truth. The efforts are required to be made to induct
more and more moral content in the law and raise the level of
legal justice to absolute justice standards.
In conclusion, it may be stated that rule of law rests on the strong
foundation of effective enforcement of laws. If the laws are not
effectively enforced, the rule of law breaks down. When rule of law
breaks down, democracy collapses and when it happen the
essence of 'free government disappears and the government
ceases to be a government of laws but gets converted into 'rule of
men'. That would be the end of democracy, liberty and freedom
28 SHIV RAO, II THE FRAMING OF INDIA'S CONSTITUTION.

29 L.M. SINGHVI, FREEDOM ON TRIAL, p. 85.
30 S. RADHAKRISHNAN, THE HINDU VIEW OF LIFE, p. 66.
31 Manu.
32 Dr. Shankar Dayal Sharma, in his convocation address at National Law
School, Bangalore, 1993.
33 K.M. Panikkar, Ideas of Sovereignty and State in Indian Political Thought, pp.
35-36.
34 MANU, MANUSMIRITHI, Chapter VII, p.19. Manusmrithi consists of 2694
verses in 12 chapters.
35 Code of Manu was constructed between 200 BC and AD 200.
36 W.D. ROSS, THE WORKS OF ARISTOTLE 1134 (1954).
37 Supra note 8, at 34.

and the system of government becomes dictatorship and becomes

an engine of oppression.


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Bharati Law Review, Jan – Mar, 2017 179

CONCEPT OF DHARMA, JUSTICE AND LAW: A STUDY

 Poorest shall have an effective voice in the making of

Published in Articles section of www.manupatra.com

 No distinction/existence of rich and the poor;

 All communities shall live in peace;

 No curse of untouchability or curse of intoxicating

Published in Articles section of www.manupatra.com

15 The great King of Babylon (2124-2083 BC) proclaimed!

Published in Articles section of www.manupatra.com

with dharma-an essential aspect of governance. This is what is

28 SHIV RAO, II THE FRAMING OF INDIA'S CONSTITUTION.

Published in Articles section of www.manupatra.com

and the system of government becomes dictatorship and becomes

Published in Articles section of www.manupatra.com

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