Dharmic Justice System: A Few Thoughts.
This article originally appeared in centreright.in. CRI content has now been subsumed in swarajyamag.com. The views expressed here are personal and do not necessarily reflect those of the editors of swarajyamag.com

Dharma is the central precept of social governance in Bharatiya/Indic thinking. It is the basis on which the entire Indic social structure is conceived and based. It bridges all Indic thinking, whatever be its western classification, Buddhist (Baudh), Hindu (Sanatana Vedic), Jain (Jaina) or Sikh (Khalsa), as the golden line on which the entire society is based and on which every person is supposed to function. Dharma Rajya or as Mahatma Gandhi called it “Ram Rajya” is an idealized state which is governed in accordance with the norms of Dharma.

What is Dharma and the Dharmic ideal ?

The conception of Dharma is integrally linked to the conception of the Indic world. The origins of Dharma can be traced to the concept of Rta in the Vedas which is used interchangeably with knowledge in Sanatana philosophy. Rta is the golden thread which runs through all creation, as indeed the hidden bond which ties all creation together. Dharma is the application of Rta in the physical world, in other words the crystallization of Rta ( though interestingly Sakyamuni ( the Buddha ) used Dharma/Dhamma ( in Pali ) to include the conception of Rta as well, possibly due to his aversion to the then dominant Vedic system.

There is no simile to the word or the conception of Dharma in Anglo-European thought and therefore it is very difficult to provide a single line definition for the word. Dharma comes from the Bhasha (Sanskrit) root “Dhr” which means that which sustains. Dharma is that which sustains the world and nourishes it and is related to the word “ Dharanat” which in Bhasha translates into that which protects. In other words Dharma is, as Robert Lingat in his treatise “The Classical Law of India”, says is “ what is firm and durable, what sustains and maintains, what hinders fainting and falling”. Dharma is the nature of things and the gods are only it’s guardians (though notably the Sakyamuni’s original interpretation excluded the bit about the gods). Dharma is conceived as the course of action which if followed by any person would lead to both physical and spiritual gain in this world and the next and the failure to follow which would result in “Adharma” or a spiritual fall and therefore a person was obligated to follow the norms of Dharma (therefore the tendency to equate Dharma incorrectly with duty / obligation to the exclusion of all else ). The Dharma is therefore an ideal which is to be followed for physical and spiritual benefit of each person and every society through its entire life cycle under various circumstances.

Dharma is however not the only reason for the living of one’s life and for the actions one undertakes. Dharma itself is one of the angles of the Dharma-Artha-Kama triangle which guides one’s life. Dharma stands for the ideal, while Artha for that which is profitable and Kama for that which is pleasurable. Even Manu accepts that man seldom acts on account of Dharma alone, and that there is great debate which course should be given primacy in the deciding what is the correct course of action. Needless to say Swayambhu Manu says Dharma is supreme, whereas Chanakya Kautilya says Artha, and Rishi Vatsayana says all three are equal in almost all cases.

The Role of “ Danda” in Dharma

“ Danda” is the methodology whereby a sovereign inculcates Dharma in his subject/s and assists them in the path of Dharma by exercising their self control. Danda means “scepter / mace” that is pure force to be used to keep persons on the path of Dharma through a method of assisted self control. In other words it assists the sovereign to discharge his Dharma to keep his subjects on the path of Dharma. Needless to say that Danda if applied properly protects the sovereign and if applied unjustly turns against him. This is more so since the sovereign is necessarily subject to Dharma and injustice would be a failure of the sovereign to follow it’s Dharma

The subjectivity of Dharma : Svadharma

The Dharmic system is predicated on a world view of the “Varna-Ashrama” system which decides the Dharma of every person that is each person’s “Svadharma”. The entire Dharmic society is divided into the chatur varna ( approximately four colors) system consisting of, the brahmana (approximately the intellectuals), the kshatriya ( approximately the rulers ), the vaisya ( approximately the commoners ) and the shudra ( approximately the servers ) based on karma ( approximately their actions ). Every person is situated somewhere in the above matrix and therefore has a specific dharma dependant upon the position which he holds in the varna matrix. Therefore the Khsatriya commits “Adharma” by not fighting a “Dharmayuddha” ( a war for Dharma ) while a Vaisya and Shudra does not

 The life of a person in a Dharmic society is also divided into four stages, the first is the “Brahmacharya” ( approximately the student ), the second is the “ Grihasta” ( approximately the householder ), the third is the “Vanaprastha” ( approximately the forest dweller ) and the fourth is the “Sanyas” ( approximately the world renouncer ). The Dharma of a person in every stage is different and what is the Dharma for one is not the Dharma for the other.

 The interaction of these matrices and webs create the Dharma of the individual within society, his “Svadharma”. The Svadharma is the basis of each person’s Dharmic ideal in society. Raimundo Panikkar in his famous article “Is the notion of Human Rights a Western concept?” says Svadharma is the Indic “homeomorphic equivalent” of the Human Right of the western society.

Dharma and societal norms and the social web.

Dharma is sometimes compared to the Greco-Roman conception of “Natural Law” though in conception they are fundamentally different. Dharma though universal is established through customary and societal practice and reiterated by the Dharmashastras (the treatises on Dharma ) and therefore Dharma is completely unlike an objective black letter code of law ( such as the Code of Justinian ) in that it represents an idealized compendium of tradition and sadacara ( good customs ) and sila ( established conduct )which must be tested on the touchstone of ‘prudence’. The Dharmashastras are more guidebooks and definitely not codes of law.

 Dharma is clearly an evolving system of norms, changing all the time yet retaining it’s essence permanently.Each person’s unique Svadharma further interacts and interplays with various other Dharmas which continuously act on a person like his Jatidharma ( the Dharma in relation to his Jati, not “caste”), Janapadadharma ( the Dharma towards his Janapada, approximately the “state” ) and Kuladharma ( the Dharma towards his “family” ).

Justice in Dharmic terms therefore lies in finding the ideal Svadharma amongst the web of Dharmas surrounding each person at every course of action.

The British and the Dharma “illusion”

The British were the ones who in the name of noninterference with customary law damaged and interfered with the concept of Dharmic law the most. The western conception of law necessarily believes that any justice system must be based on a system of definite rules. The Islamic rule for eight hundred years in India had completely superimposed the Sharia on the criminal justice system, but had not interfered with the “Hindu” dispute resolution systems in civil matters. The British in the attempt of disbursing equal justice instituted British judges to judge on Indian matters of civil dispute, assisted by Quadis or Pandits. Inspite of various dissenting voices within the British administration, the attempt of the British judges was to codify the Dharmic codes and treat them as exhaustive and then interpret them through the methodology of ‘starre decicis’ something completely against the grain of Dharmic justice. This was because the British judge operated completely outside the social milieu which was the most crucial component for dispensing Dharmic justice,and therefore it was not possible for him to either interpret the Dharmic norms or to decide the svadharma of any person. In the process the British created a justice system which was completely alien to the Dharmic system. The British ended up creating a peculiar system of justice called the Anglo-Hindu law, which was neither Anglo nor Hindu and the worst of both.

Dharma, the Indian Constitution and Indian law today.

The Indian law and the Indian Constitution is in itself a peculiar continuation of the strange world of Anglo-Hindu law,that is of trying to make sense in a “modern” western way of the very ancient Dharmic society. The Indian Constitution tries to address the problems of “jati” through westernized system of economic reservations not realizing that it would in effect entrench the system further. The Indian Constitution attempts to establish a “secular” state yet, defines “Hindus” in the fundamental rights chapter, provides the people the right to propagate their religion and allows functionaries to take oaths in the name of God and makes special contributions to “Devaswom” (Hindu religious trusts) funds from the Consolidated Fund of India. The dilemma of the Indian state is exemplified by the debate over the hierarchy within it’s Directive Principles of State Policy, whether to protect cows (under the guise of it being a “Gandhian” value, as if Dharmic views and Gandhian views are separable) or to devise an uniform civil code (strangely pitting the conservatives on the side of the liberals and the liberals on the side of conservatives ).

Though the Indian fundamental rights chapter is western in its formulation, the Supreme Court of India is being more often made to take choices which are decidedly Dharmic without terming it as such in order to solve Indian problems.

Here are a few examples amongst the many evolving all the time: 

The first example is the evolution of the Indian conception of “Sarva Dharma Samabhava” as “Equal Treatment of all Religions” different from the anti-God westernized secularism. In India the Supreme Court has finally come around to it’s original point of view, after a few attempts to impose western style secularism, that there is no wall between the church and the state, but an injunction that all religions in India should be treated equally based on Upanashidic/ Vedic principles.

 The second is the expansion of the right to life from the restricted and limited right in the Constitution to an all encompassing right beyond “mere animal existence” read along with the rights of liberty and the right to equality, in order to do complete justice to every person. This formulation of the Right to Life is very much unlike the black letter law based justice which is the hallmark of the “Rule of Law” and much like Dharmic justice which sees life beyond the merely material / physical existence.

 The third is the nuanced view on jati which the Court is slowly coming to hold under the right to equality after it’s initial disastrous interpretations of the provisions in western terms.

The fourth is the expansion of the right to legal remedy, by first making it a fundamental right and then a basic structure of the Constitution (remember Dharma is supreme ) and then going beyond the court based system by taking into account letters / postcards and evolving remedy to suit every circumstances in order to do complete justice such as laying down detailed guidelines for sexual harassment and for environmental protection of various areas like the city of Delhi and the Taj Mahal. No one line conclusions for an yes / no proposition as is the case for western courts, in India the Courts attempt to solve the problem instead of deciding on issues very much like the Dharmic system.

The fifth some would say is the unique ‘basic structure’ doctrine evolved by the Court, which is based on the unique premise that though the Constitution is ever changing yet in it’s essence is ever permanent. If that is not a formulation of Dharma, what is ?

Lastly, in India, the judiciary is very respected and is uniquely powerful. Some say it is the most powerful judiciary in the world. It can only happen in a country where the culture holds the interpreters of laws to be even higher than the formulators of laws and those that execute them. Dharma in India still reigns supreme, though sadly as Werner Menski says in his monograph “The Indian Legal system past and present”, the Indian judiciary is extremely averse to formulate governance in terms of Dharma, though surprisingly even that may be slowly changing, ironically by the judgment of the Indian Supreme Court directing the Gujarat Chief Minister to uphold his “Raj Dharma” or Dharma of Governance.