India’s Jurisprudential Perspective

Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts

Law and Governance in Dharmasastra and Nitisastra

GLA University, Mathura, Utar pradesh
10 January 2024, New Delhi.
 Law is not what it seems
Law has been too often perceived mainly as state-based rules and
institutions that provide an empirical and positivist alternative to religious
values and practices and traditional customs. This presentation uses Vedic
tradition to question the Western perspective and highlight some aspects of
close linkages between law and dharma, secular and sacred, in India.

As a preliminary study of Hindu law and jurisprudence this

research paper is structured around the key legal concept of dharma in
Hindu law. It provides an overview of the Hindu way of thinking regarding
the concept of dharma through a brief examination of some of the Vedic and
Dharmasastra texts.
 Judicial Process
We assume that in the work of arguing and deciding cases in
thousands of courts in the country the judge and the lawyer can easily and
clearly comprehend and describe the process they follow.

Nothing could be farther from the truth. Sources of information,

applicable precedents, logical consistency, prevailing custom, personal
understanding of justice and morals, all these and more elements enter in
varying proportions to make the strange compound of judicial process.

Judicial process, being interaction of mind, matter and life, is

uncertain, entangled, complementary, emergent and creative. It
arrives at decisions by the logic of probabilites rather than the
logic of certainty.
 Text and Context
 “When law is clear, plain or unambiguous, and it is
reasonably susceptible to only one meaning, the court is bound to
give effect to that meaning and admit only one meaning and no
question of construction of a statute arises”. Consequently,
the measure was regarded as unlawful only on a purely legalistic analysis of
the relevant provisions of the Act and not on objects of emonetization.

Majority opinion was that “in the context in which it is used, the word
recommendation would mean a consultative process” between the
Central Board and the Central Government and “It cannot be said that there
was no conscious, effective, meaningful and purposeful consultation”.
The RBI Act says, “On recommendation of the Central Board, the Central
Government may, by notification in the Gazette of India, declare….”.
 Legal Culture
The idea of legal culture has had an important place in recent debates about
the nature and aims of law. The concept of legal culture means that
law should be treated as embedded in the broader culture of
society. In a sense, law is culture. Concept of legal culture encompasses
much more than the professional juristic realm. It refers to a more general
consciousness or experience of law that is widely shared by those who
constitute a nation.

The nature of the Indian society is such even today that the Western
positivist notions of law do not touch the reality of the way most people
understand and live their lives. A juridical system that does not
correspond to the social and cultural sensitivities of a society can
not be owned by the people as their system but will be seen as
something foreign and imposed. Without a conducive social and
cultural conceptualization mere formal law cannot create willing legal and
moral obligation.
 Western Legal Tradition
In general, in the Western legal tradition law is quite indifferent
to morals. It is insisted that law and morals are to be kept apart
sedulously. Morality and morals are conceived of as for the legislator or the
student of legislation, the one making specific, objective laws out of the raw
materials of morality, the other studying how this is done and how it ought
to be done; but it is considered that they are not matters for the judge or the
jurist.

It is also generally held that the judge applies the rules which are
given to him, while the legal scholars and lawyers study these rules,
analyze and systematize them, and work out their logical content. This
assumes that law is a body of rules- Bentham, Austin and Maine
were major jurists of 19th century who developed the positivist and analytical
jurisprudence and insisted vigorously on the separation of law and morals.
 Vedic Legal Tradition
The absence of a single key word for ‘law’ in Sanskrit has given rise
to misconceptions that ancient Indians were somehow deficient in legal
theorising and lacked a clear conceptualisation of ‘law’. The field of
jurisprudence now needs to be re-examined, to show the rich plurality of
meanings of what are in fact various types and conceptualisations of ‘law’ in
Indian tradition.

In the Vedic tradition we can see an indigenous system of law and

justice, focused on the key holistic concepts of rta and satya. In addition,
dharma, danda, vyavahāra, ācāra and other such terms are relevant
to a deeper and contextual understanding of the richness of ancient India’s
conceptualisations of ‘law’.
 Spirit of Law
 The claimed absence of a single key word for ‘law’ in Sanskrit has given rise
to rather misguided assumptions among scholars of Indology as
well as lawyers that ancient Indians were somehow deficient in
legal theorising and lacked a clear conceptualisation of ‘law’. The
field of jurisprudence now needs to be re-examined, to show the rich
plurality of meanings of what are in fact various types and
conceptualisations of ‘law’ in Indian tradition.

 In the Indian legal tradition we can see an indigenous system of

law and justice, focused on the key concepts of rita and satya. In
addition, dharma, danda, vyavahāra, ācāra and its various forms and other
terms are relevant to a deeper understanding of the richness of ancient
India’s conceptual-isations of ‘law’.
 Law and Morals
 In Indian legal tradition there is no one textual statement that can represent
‘the law’ as it is understood today. The Indian legal system is not built
only on codified statements by a human legal authority, to which
factual situations are then related, nor is it based on a fixed revelation, which
came down from heaven one day and binds all adherents.

 The Indian tradition of law is based on a clear awareness of a pre-

existent order, the observable system of nature, conceptually
embodied in the Vedic concepts of Rta and Dharma. The traditional
Indian concept of macrocosmic order, beyond direct human reach,
transcends and envelops any form of positivistic human law-making.
 Rule of Rta
The concept of rta or eternal law is a multifaceted concept
connected to all the fundamental concepts in the Vedic tradition. Rta
is the eternal law of order and harmony underlying the cosmic phenomenon.
This eternal and universal order or law is all pervasive and the universe is the
expression of this order maintained by the gods.

The sphere of rta is physical, metaphysical and ethical. The term

signifies the course of the natural world perceived through its rhythms, seasons,
cyclic movements and equilibrium and harmony in nature. It refers to three
basic elements, activity, order, and system. Hence, “heaven and earth exist in
close unison in the womb of rta”. (Rg Veda, 4.23; 10.65; 10.190)
 Spiritual and Social Dharma

Indian legal tradition was never a western-style legal system with codes and
cases but respected at all times the relativity and context of justice based on
natural law principles. Dharma is based outside the realm of the
human, but there is a subtle link and correspondence between
cosmic order and human existence. Individual freedom rests on
socially operative normative order to which ruler is also accountable.

The term dharma denotes neither just ‘religion’ nor ‘law’, but the
moralised duty, placed upon every individual, to contribute to
macrocosmic as well as microcosmic order. In other words, the
central expectation is that an individual will strive to do the right thing at the
right time and will give his best for the good society of which he is an integral
part.
 Dandaniti MS

After ascertaining the motive, the time and place, and taking
into consideration the condition and the nature of the offence,
punishment shall be given to those deserving punishment. MS 126
Punishment shall be given by persons of integrity in the form of
either reprimand, reproach, fine, or capital punishment. MS 12
Unjust punishment is destructive of reputation and subversive of
fame; it leads to loss of righteousnes; must therefore be avoided.
MS 127

Punishing those who do not deserve to be punished, and not

punishing those who deserve, one attains great ill-fame, and hell.
MS 128.

Stating the untruth in evidence, the witness becomes firmly

bound in Varuṇa’s fetters, helpless during a hundred births . MS,82
 Atatayi Vadh

The dharmasastra give the right of self defence to every

individual against an assailant to the extent of causing the death
of the assailant. This right is highlighted in al present day
advanced systems of law. (Manusmriti)

The dharmasastra had at the same time evolved and defined the
safeguards against the hasty or improper use of the right of self
defense no less carefully than the modern Indian penal code.
(Vishnu Smriti)

The similarity between modern law and dharmasastra on the

issues like self-defence, should stimulate comparative study and
the search for a better system of law.
 Conclusion
In Indian jurisprudential perspective, going beyond the letter of
the law in the light of the spirit of justice reflected the functional character of
the dharmasastra aiming at benevolent result. The idea that justice must
prevail over law showed the aceptance of limitations of man-made law and
notion of dharma as higher moral law as the suprior principle.

The larger discretion in the interest of justice gave scope for

application of equity and good conscience. The duty of the judges to act with
a sense of proportion reflected the connecting link betwen equality, justice
and equity as the creative and supporting principle. Caliberation of
punishment in proportion to the crime was sign of mature legal system.
 Literature Review
Supreme Court’s Courts of India, (2016), P. V. Kane’s History of
Dharmsastra (1962), and K.P. Jaiswal’s Hindu Polity: Constitutional
History of India in Hindu Times (1924) remain primary Indian texts on the
cultural evolution of law in India. Werner Menski, Hindu Law: Beyond
Tradition and Modernity (2003), and Donald Davis, The Spirit of Hindu
Law (2010), are important recent texts on Indian legal tradition.

Soren Koch and J. Sunde, (2020), Comparing Legal Cultures, and

CsabaVarga, Comparative Legal Cultures: On Tradition and Anarchy of
Rationalism (2012), emphasize that integration of law and ethics should be
developed in various cultures in mutually complementary ways to achieve
efficiency. Chiba, Masaji, Asian Indigenous Law, (1986).