THE DHARMASASTRA AND MODERN LAW

Letter and Spirit of Law in Indian Tradition

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

Abstract
This article on the dharmasastra and modern law uses the concept of legal
pluralism that has an important place in recent debates about the nature and aims
of law. The concept of legal pluralism means that law should be treated as
embedded in the broader culture and tradition of society. In a sense, law is culture.
Concept of legal pluralism emphasizes diversity in the professional juristic realm in
different countries and societies. It refers to a general consciousness or experience
of law that is widely shared by those who constitute a nation. Culture is
fundamental — a kind of lens through which all aspects of law is perceived, or a
gateway of understanding through which we must pass so as to have any genuine
access to the meaning of law in society. 1
In India, the social and cultural concepts of law that emerge out of the several
frames of reference in the Veda, Dharmasastra, the constituent assembly debates
and the judicial decisions, enable us to view the law in an integrative perspective
that is closer to Indian cultural tradition. The value of such historical and
sociological approach lies in its unifying vision of the social, cultural and positivist
aspects of the concepts of law in Indian tradition.
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. A holistic concept of law including both ethical and legal perspectives
seems to provide a more realistic picture of Indian legal tradition.

Introduction
In the context of Indian knowledge tradition in general and dharmasastra in
particular, there has been no misunderstanding more serious in nature than the
supposition that Indian culture and tradition is fundamentally 'religious', in the
sense in which the words 'religion' and 'religious' have been used in the West for
centuries. These imply a belief in one exclusive God or messenger as the creator or
visionary of the universe, an exclusive book containing the life and the sayings of that
messenger of God, a separate code of commandments, a conclusive corpus of
ecclesiastical laws to regulate thought and behaviour in the light of these, and a
hierarchy of priesthood to supervise that regulation and control and promote
proselytization.

1
Capra, 2015; Glen, 2010; Sarat, 1993.

1
The Indian concepts of dharma and dharmasastra mean none of these. It is to this
confusion that we can trace most of the Western misconceptions of Indian society,
culture and law. Understanding of many of Indian social and legal institutions
continues to be founded upon such misconceptions which are often the source of the
social and political problems that the people of India face today. The assumptions
underlying Western law and jurisprudence at different stages of its development
were radically different from the assumptions of traditional Indian law and
jurisprudence. It was the Western political and legal philosophy narrowly and rigidly
based on the rights of the individual that dominated the constitution-making in
India.

Many Western scholars and their Indian followers with their apemanship and
parrotry, vigorously refuse to accept the indigenous identity of law in India, primarily
because their assumptions about ‘law’ differ from the internal categories of
indigenous law. The main problem that arises in connection with understanding
indigenous law, has been the regular attempt – by insiders as well as outsiders - to
deny that this important legal system actually has its own capacity for internal
modernisation. India’s indigenous law is much more than state law and thus it
explicitly rejects the usefulness of legal positivism as an analytical tool for
understanding the actual complexity of law. The projected decline and virtual
abolition of indigenous law is nothing but a constructed myth that has served certain
purposes and modernist agenda – and continues to do so with much persuasion - but
it cannot deny the social, cultural and legal realities of Indian culture and tradition. 2

Modern Law

Contemporary Western jurisprudence is a product of long Western history and is

coloured by a Western culture based on the Hellenistic and Christian view of man
and society. The universalistic achievements of Western jurisprudence disguise its
cultural specificity. That specificity may have been in some cases diffused by or
assimilated into different specificities of different cultures, but in other cases it has
conflicted with or been rejected by them. In all cases, Western jurisprudence,
convinced of its illusion of universality, does not pay due attention to the cultural
problems which accompany such diffusion or conflict between Western specificity
and non-Western specificities.3

The first attempt to create a modern scientific theory in jurisprudence was the
positivist theory of the English Jurists Bentham and Austin. Bentham and Austin
utilized the positivist approach of Auguste Comte to the explore subject of
jurisprudence. They insisted that one should study the law, including the legal
structure, the legal concepts etc. as it is, and not how we would like it to be. This was
the scientific approach at that time because in science also we study objective
phenomena as it is and not how we like it to be. For instance, when we study the
atoms in physics we study the nucleus, the electrons orbiting around it, etc. We do
not speculate how the atom should behave according to our own wishes, but we study
it as it is. The same approach was adopted by Austin and Bentham in jurisprudence. 4

2
Altekar, 1952; Apte, 1954; Jois, 2022; Lingat, 1973.
3
Chiba, p.2.
4
Katju, p. 17.

2
Positivist jurisprudence regards law as a set of rules (or norms) enforced by the State.
As long as the law is made by the competent authority after following the prescribed
procedure it will be regarded as law, and we are not concerned with its goodness or
badness. We may contrast this with the natural law theory which says that a bad law
is not a law at all. “The science of jurisprudence is concerned with positive laws, or
with laws strictly so called, as considered without regard to their goodness or
badness”. Thus, positivism seeks to exclude value consideration from jurisprudence,
and confines the task of the latter to analysis and systematization of the existing laws.
The separation of law from ethics and religion was a great advance in Europe from
the feudal era.5

It has been a general belief among both scholars and laymen that law is a special
mechanism for establishing social order isolated from other social mechanisms and,
for this reason, that the scientific study of law should be confined to the special
capacity of positive legal jurisprudence. While positivism was a great advance over
natural law and was suited to modern industrial society, it had a great defect that it
only studied the form, structure, concepts etc. in a legal system. It was of the view
that study of the social and economic conditions and the historical background which
gave rise to the law was outside the scope of law and jurisprudence and belonged to
the field of sociology.6

However, unless we see the historical background and social and cultural
circumstances which give rise to a law it is not possible to correctly understand it.
Every law has a historical background and it is heavily conditioned by the social and
cultural system prevailing in the country. The flaw in positivism therefore was that it
reduced jurisprudence to a merely descriptive science of a low theoretical order.
There was no attempt by the positivist jurists, like in sociological jurisprudence, to
study the historical and socio-cultural factors which gave rise to the law. Positivism
reduced the jurisprudence to a very narrow and dry subject which was cut-off from
the historical and social realities. It deprived the individual and the society of
jurisprudence of flesh and blood.7

Legal Pluralism

The cultural relativism approach that emerged in social sciences in the twentieth
century in the wake of Einstein’s theory of relativity, and the uncertainty principle of
Werner Heisenberg, argued that a society’s institutions and practices should be
understood based on that society’s own culture. Edward Sapir and Benjamin Whorf,
major proponents of cultural relativism, argue that the norms and values of one
culture should not be evaluated using the norms and values of the other. Another
way of saying this is that many features of human experience are entrenched or
embedded in social and cultural conceptualizations. Cultural relativism offers both a
theoretical and an analytical framework for investigating cultural conceptualizations
that underlie the social and cultural practices and institutions. At the heart of the
theoretical framework of cultural relativism is the notion of cultural cognition, which

5
Menski, p.6.
6
Chiba, 2009, p.1
7
Cardozo, 2020, 2021; Schauer, 2022.

3
affords an integrated understanding of the notions of “knowledge” and “culture” as
they relate to social practices.8

Viewed in this context, the letter and spirit of law in India is not limited to the
monistic system of state law as maintained by Western jurisprudence in accordance
with methodological postulates of legal positivism. The whole structure of law as an
aspect of Indian culture includes all regulations, however apparently different from
state law, which the people concerned observe as law in their cultural tradition,
including value systems. The very cultural identity India demands that we include all
of them in a whole structure and functioning of law in the country. Thus, the nature
of law in India is plural, consisting of different systems of law interacting with one
another harmoniously or conflictingly.9

At the same time it is true that the people and scholars of India who have cherished
their own jurisprudence with specificities quite different from the Western, have not
succeeded nor even attempted to present the achievements of their jurisprudence
before the world circle of legal science forcibly enough to cause the proponents of
Western jurisprudence to doubt their conviction of universality of Western
jurisprudence. Without presenting the achievements of their own jurisprudence
before world bodies specifically aimed at self-reflection of model jurisprudence,
Indian scholars remain unqualified to criticize the ethnocentricity of the latter, as
recently pointed out by some Western scholars. 10

Such a negative or passive attitude may be another reason why Western

jurisprudence has in general disregarded the jurisprudence of different cultures -
jurisprudence with due respect to indigenous legal cultures in non-Western
countries. Vital to the proper understanding of law in Indian culture is, firstly, for
Indian scholars to present their own data and views positively in order not to negate
the significance of western jurisprudence, but to maintain a sound understanding of
its nature when utilized in different cultures.11

The assertion that law is simply the law of the sovereign State misses the point that
the law gets its meaning from the intersection of legal and various other social
systems of meaning. Law like any other institution of society is interconnected with
other institutions. The task of legal scholars therefore, is to recognise the connections
between the law and social, political and cultural systems. The interdisciplinary study
of law must mean that it brings the knowledge of the legal doctrine and analyzes it in
the context of the knowledge of other disciplines. In doing so it carries the
responsibility to try and achieve social justice for all. Despite the never-ending
debates about modernisation and secularism in India, dharmic law, governing the
social majorities of India’s population, has continued to play a key role in the
development of the state legal apparatus and will continue to do so. It does not
matter whether scholars like this or not.12

8
Einstein,1982; Heisenberg, 1989; Carrel, 2019, Chiba p.4.
9
Chiba, p.4.
10
ibid. p.2
11
ibid.
12
Jois, 1993; Jois, 2000; Kane, 1962-75, Moghe, 2003.

4
Dharma, the foundation upon which all life is based in India, is immeasurably more
than 'religion'; mistakenly one has been taken to be the other. The Indian mind did
not think in terms of contesting polarities of the either/or kind. It would be yet
another misunderstanding if the statement that dharma is profoundly secular is
taken to mean that it is for that reason anti-religion, or that it has concern with other
human beings in the form of legal accountability alone. The secular nature of
dharma lies in the fact that all Indian explanations of man are evidently located in
man himself, in the very structure of his being. It is that which binds one human
being with another. The ethical foundations, and the limits of one human being's
conduct towards another, are already inherent in man's being, in the force of
dharma.

In modern times, when secularism is upheld as an ideal and religion has been
separated from politics such a linkage may appear far-fetched. The Indian view is
different. Morality, to have effective force in practice must be based on rules of
cosmic order. The unruly conditions of the modern world could have been avoided if
dharmic values had been upheld, and personal, social and national behavior had
been harmonized with the complex adaptive system running through the history of
cosmic creation. Dharma can be comprehended by its application in daily life, by the
consideration of the diverse form it takes, by its effects both visible and invisible, the
empirical evidence behind it, and the occasion for its use and or application. Dharma
stands for natural law, civil and moral law, justice, virtue, merit, duty, morality and
quality.13

The study of dharmic law has been neglected in the decades since independence due
to a combination of declining knowledge of its classical foundations and the
pressures of modern political correctness, to the effect that studying dharmic law is
often seen as a regressive activity. Anything ‘Indian’ is therefore quickly dismissed in
many ways, by those who imagine and assert that a modern world, by which is often
meant a Western-inspired world, can do without so-called primitive religious and
cultural traditions. They have conveniently forgotten that the so-called modern
western traditions have their own roots in Western cultural and religious traditions.
So how can India be called upon to ‘modernise’, if that means giving up the social
and cultural concepts that make up the fabric of the Indian identity?14 (Aiyangar,
2018, p.62).

Since dharmic law has always been a reflection of the way of life of millions of very
diverse people, what was abolished by the formal law was manifestly only a fragment
of the entire field and of the social reality of dharmic law. The conceptual framework
and the entire customary social structure of Indian culture, remained largely immune
to the powerful wonder-drug of legal modernisation which had been administered in
measured doses since well before 1947 and was again used during the 1950s and
decades thereafter. Something as complex as Hindu personal law could not be
reformed away and ultimately abolished by statute, nor could its influence as a legal
normative order that permeates the entire socio-legal Indian field simply be
legislated away. India’s indigenous law has always been a people’s law, whether or
not the state wished to see it that way. Despite enormous internal changes, dharmic

13
Aiyangar, 2018, p.62.
14
Aiyangar, 2018, p.62.

5
law as a conceptual entity has remained an integral part of the living and lived
experience of all Indians.

Vedic Vision

The Vedas give us a hierarchy of different levels of reality down from the all-
embracing absolute, which is the primary source as well as the final consummation
of the world process. The different kinds of being are the higher and lower
manifestations of the one absolute spirit. There is correspondence or underlying
unity between the absolute and the relative, the unmanifest cosmic reality is not
separate or isolated from the objective reality. Whatever is in the cosmos and beyond
is essentially true in the individual also. Whatever is stated of the cosmic reality is
applicable to the human body, and each individual is spoken of as a descendant of
the cosmos.15

The universal is collective. The collective is of no importance without the particular

and the latter cannot exist without the former. If the collective is not manifested in
creative individuality, and it remains enclosed within its rigid unity, it would neither
be the universal nor the highest power. The collective and the individual are not
exclusive. One cannot exist without the other; individuality is the fulfillment of the
collective; the collective is the underlying foundation and the individual human being
is its highest manifestation. The collective is ever seeking its consummation in the
individual. As Tagore summed it up “You without me, I without you are nothing”. 16

There are two kinds of knowledge to be acquired, namely, apara and para-lower and
higher. The lower knowledge is constituted of the Vedic texts themselves, the higher
knowledge is that which goes beyond the texts of the Veda. Realising the higher truth
or knowing the absolute reality is more important than merely being satisfied with
words of Veda or outer shell of their meaning. The person who knows the Veda but
does not know their meaning is only carrying a load. Before the knowledge of
absolute, mere perception can be misleading. When our understanding is
enlightened with higher knowledge we can understand the relative in a more
complete sense.17

In keeping with this Vedic vision of reality and knowledge, Panini developed his
theory of grammar in which the structure of language is seen as an ascending order
of relations between words and concepts from the perceptible level of manifest
reality to the highest level of abstraction which is farthest from objective perception.
The intermediate levels of increasing abstraction eventually merge in the Sabda
Brahman where linguistic reality loses its autonomy and merges in the absolute
reality.18 In the Natyasastra, Bharatmuni set out to use the very language and
vovacbulary of name and form to evoke that which is beyond form or without form,
and all this through the vehicle of verbal and non-verbal expression of feeling.19

15
RV, 1.164.4-5.
16
Tagore, 113).
17
RV, 1.164.39.
18 Kapoor, p. 86.
19 Vatsyayan, p.57

6
Vedic sages realized the overarching presence of rta, an invisible cosmic law that
held together in order a complex and adaptive system at different levels, forms, and
phases of all the objects and processes that comprised the cosmos. All the forms of
being existing and developing in harmony within an interconnected web of
relationships were seen as organized in a system which integrated all the parts into
an undivided whole in flowing movement. The cosmic order which extended to all
levels of existence from the infinite to the infinitesimal was seen as inviolable, never
to be broken, even by the Vedic divinities who were in fact considered as the
guardians of ṛ t a.20

Īśa Upaniṣad brings out the systemic aspect of cosmic order most succinctly and
clearly. It says that the Absolute Reality is both universal and particular. The creation
of the particular from the universal does not affect the integrity of the universal. The
principle or quality of wholeness and integration is prior to the principle of particular
and diversity. Oneness becomes many in the image of the oneness. That is whole, this
is whole, taking out a particular whole from the absolute whole leaves the absolute
whole integrated and creative as before. Every particular entity has to be an
integrated whole to maintain its identity amongst an integrated system of infinite
entities. The wholeness or integrity of each part is the bedrock of the wholeness of
the universe and the order of the cosmos, and the order of the cosmos is the bedrock
of the wholeness of the particular.21

The Vedic texts give a reasonably clear picture of the world views of the Vedic sages,
of their ideas about man’s place in the world, in particular of the Vedic
conceptualization of ṛta as macrocosmic order. Herein lies the importance of the
Vedas as a source of dharma. They elucidate the early conceptual underpinnings of
Vedic law which are absolutely central for understanding the emerging legal system
as a whole. The central point appears to be that ‘law’ is an entity beyond direct
human control. It exists, and yet does not claim institutional loyalty, as a state legal
system would do.22

Ṛta is the principle whereby the Absolute Reality becomes manifest and perceptible
to human senses. In Ṛg Veda it is said that, 'heaven and earth exist in close unison in
the womb of ṛ t a'. (Ṛg Veda, 10.65). Ṛta, thus, is the one single system that embraces
the cosmic order. The concept of ṛ t a explains the course of the evolution and
sustenance of the natural and human world in terms of rhythm, time cycle, seasons,
and biological growth. It refers to three basic elements of birth, growth, and
transformation as the components of the complex cosmic system which functions
according to its own self-organizing principles and law. Scholars, scientists, and
poets in all ages have always found it amazing that the Absolute Reality is so well-
ordered. In a landmark Supreme Court judgement, Chief Justice P. B.
Gajendragadkar called this ‘great world rhythm’ one of the basic concepts of Hindu
philosophy.23

The early key concept of ṛta metamorphosed gradually into dharma which may be
understood as microcosmic order or duty, the central dharmic legal term, which in

20
Khanna, 2004; Menski, p.90.
21
Isavasaya, p.64-67.
22
Tripathi, 2022; Narang, 1988
23
1966 SCR (3) 242.

7
one form or another underlies and suffuses all the later texts. Dharma became
clearly the core concept of Vedic tradition, and thus of Vedic law. Its relevance in
legal terms can be explained quite simply in that life is seen as a complex experiential
reality, in which everybody and everything has a role to play and is visibly and
invisibly interconnected in a giant systemic network of cosmic dimensions, a kind of
universal spider’s web. Individual roles and obligations are, of necessity, quite
disparate for different people; they depend on contextual factors like gender, age, or
place in society. Dharma as a central legal concept thus suggests unlimited plurality
at the level of social reality within a dharmic systems theory that defies rational
deconstruction.

Ṛta is a multidimensional concept which is connected to other fundamental concepts

like brahma, atma, dharma, and satya,in the Veda, Epics, Upaniṣads and the
Dharmaśāstra. In its most fundamental sense, ṛ t a is the law, order, system,
harmony underlying all natural phenomena. Ṛta is the all-pervasive universal order
that is same at all levels of existence, and the objective world is the expression of that
order. The field of ṛ t a is physical, mental, spiritual, and ethical. Nature as it is known
to us is not seen as a chaotic occurrence of events and objects. While it may appear as
random and disorganized, the fundamental processes of nature that underlie all
objective, and subjective realms too, function as a complex system in which all parts
are coordinated and integrated into a larger whole.

Indian conceptualizations of ṛ t a, dharma, and satya are not comparable with

Western principles in the sense that they provide specific ethical permissions or
prohibitions. Truth in the Western sense is the sum of what can be isolated and
counted, it is what can be logically accounted or what can be proved to have
happened, or what one really means at the moment when one speaks. While the
Indian conception of satya is marked by an inner realization of the wholeness of
reality, the Western view of truth is better described in English dictionaries as
truthfulness or veracity of individual explicit statement.

In Indian tradition, on the other hand, truth is defined in Mahābhārata when it says,
'Satya is dharma, tapas (austerity) and yoga. Satya is eternal brahma, Satya is also
the foremost yagya, and everything is established on Satya'. In an illustration of this
principle, Mahābhārata says that the spirit of dharma exists in the khadga (sword)
also. The khadga or sword is a creation of Brahma for the purpose of protection and
sustenance of the people according the principles of dharma. It takes the form of
verbal, material, physical or death penalty for those who consciously violate the
principles of dharma for their own selfish ends.24

The concepts of rta and dharma are of great significance in the ethical and legal
tradition of the Vedas. It is the anticipation of the law of karma, one of the
distinguishing characteristics of Indian legal thought. It is the law which pervades
the whole world, which all gods and men must obey. If there is law in the world, it
must work itself out. If by any chance its effects are not revealed here on earth, they
must be brought to fruition elsewhere. Where law is recognized, disorder and
injustice arc only provisional and partial. The triumph of the wicked is not absolute.
The shipwreck of the good need not cause despair.25

24
Mahabharata, p. 512.
25
Radhakrishnan, 2019, p.80.

8
The ideal is envisaged as a fluid ordered universe, or a complex adaptive system, in
macrocosmic as well as microcosmic dimensions, in which every element of that
giant cosmic order simply does what is most appropriate. In other words, the Vedic
conceptualization of order reflects a kind of ecologically sound symbiosis in which
every component part plays its proper role. But this is merely the conceptual ideal:
real life is a never-ending chain of contradictions, role conflicts, and processes to
ascertain specific duties. It can also be viewed as a struggle to find one’s path,
especially later in the more individualistic contexts of realization-centred beliefs.

More pointedly for a legal analysis, awareness of ṛta and dharma involved a
continuous process of harmonizing individual expectations with concern for the
common good, a constant obligation to ascertain the appropriate balance between
individual and society, good and bad, right and wrong, the permissible and the
prohibited. Vedic law, in other words, is from the start based on a complex and
continuous interactive process26 Much of this remains invisible and internalized, a
truth later brought out forcefully in the dramatic illustrations of the great epics,
which can be seen as ancient tools for teaching ‘order’ in every sense of the word.

The divinely inspired Vedas, the dharmasastra reflecting the Vedic ideals, virtuous
conduct of the learned and finally, one’s own conscience formed the four-fold bases
of dharma. The common conscience of the community, emerging in the form of
immensely diverse customary practices of different communities and villages formed
dynamic source of law. While customs were elevated to the status of law, they too had
to be sanctified by good conscience. Thus, in the Vedic tradition we find indigenous
versions of many of the principles that constitute the foundations of our legal system
even today: impartial rules of procedure, principles of equity and even the subjection
of the sovereign to over-arching ideas of justice.27

Dharmasastra

Dharma means much more than what is commonly understood by religion, and the
dharmasastra means much more than religious texts. While there is something in
the very nature of semitic religion which is divisive, conclusive and exclusive,
dharma is inclusive, open and it unites. Religion excludes all that it is not in a
particular religion, dharma includes every form and view of life. Religion often
makes claims that are not based on experience, the claims of dharma are the claims
of life and science. While religion and politics must necessarily be separated for a
safe and sane world, legal and political thought and practice must necessarily have its
basis in dharma.

As far as basic aspects of Dharma are concerned, they were clearly set out in Manu
Smriti and Yajnavalkya Smriti as follows:- Veda is the first source of Dharma. Smriti
texts, the virtuous conduct of those who are well versed in the Vedas, and lastly, what
is agreeable to the good conscience, are the other sources.28 The Vedas, the Smritis,

26
Derrett, 1968, p.2–3.
27
GOI, p.13.
28
Manu Smriti, II-6.

9
good conduct or approved usage, what is agreeable to conscience proceeding from
good intention, are the sources of law.29

The common conscience of the community, emerging in the form of immensely

diverse customary practices of different communities and villages formed dynamic
source of law. While customs were elevated to the status of law, they too had to be
sanctified by good conscience. Being essentially a scheme of just social order, dharma
was the goal set for king and the subjects. It was declared to be the king of kings by
means of which the weak could prevail over the strong. Thus, their structure of law
had dharma as its axis. In identifying appropriateness of action, multiplicity of views
expressed in different dharmashastras prevailed, thus allowing plurality-conscious
universalistic principles.30

Dharmasastra provide comprehensive guidance to regulate human conduct in

accordance with the given system of cosmic creation and fulfill the purpose of one’s
life. The whole life of a person considered both as a an individual and as a member of
social groups, as well as a person’s relationship with fellow individuals, to the other
living beings, to cosmic reality generally and to one’s conceptions of God come within
the purview of the concept of dharma. Among the duties that were laid down are
both self-regarding and other-regarding, those to the living, those yet to be born and
those no longer alive.31

The dharmasastra were an attempt to explain facts of moral life within the terms of
a cosmological order. The structure of dharmasastra law had dharma as its axis. In
identifying appropriateness of action, multiplicity of views expressed in different
dharmashastra prevailed, thus allowing plurality-conscious universalistic principles.
The office of king was regarded as an institution necessary for the maintainance of
the order established by the creator for the good of creatures.32

The king had the duty to establish what may have been practised by the virtuous and
learned Brahmins, unless it was opposed to the customs of the region, clan or caste.
The king’s duty to act with a sense of proportion in the matter of imposition of
punishments demonstrates the link between equality and justice and equity as the
corrective and supporting principle. Quantification of punishment in proportion to
the evil was a sign of a mature legal system. Similarly, by affirming strongly that in
case of doubt punishment will not be imposed, the legal system exhibited great
wisdom.33

Brihaspatismriti categorically rules: No sentence should be passed merely according

to the letter of the law. If a decision is arrived at without reasoning and considering
the circumstances of the case, there is violation of dharma. This approach of
transcending the letter of the law in the light of the spirit of justice reflects the
functional character of the legal system aiming at a benevolent result. The idea that
justice will prevail over law reflects the acceptance of the limitation of man-made law

29
Yagyavalkya Smriti, V 1-7.
30
GOI, p.33.
31
Banerjee, 1998; Baxi, 1986.
32
Lingat, p. 207.
33
GOI pp.39-43.

10
and a notion of higher moral law as the superior principle. The larger discretion in
the interests of justice gave scope for application of equity and good conscience.34

This view of law is not confined to India alone; it is characteristic also of the
Indianized states of Southeast Asia. In Cambodia, the Hindu doctrines of law were
followed in their original form-although, as the epigraphy shows, some modifica-
tions were made. In Burma, the dhammasattha was an attempt to use the Hindu
system as a model in an environment entirely given over to the Buddhist faith. For
example, the Code of Wagaru retains the sastric classification of contentious matters
into eighteen types; but the content of the texts is very much a matter of local
Burmese rules. The Hindu system was not introduced as such; rather, it was used as
a guide to form.35

Although the Buddhist religion did not contain any revelation on the social order, the
dhammasatthas were held to have originated on the cakkava-la (the wall that
surrounds the universe) and to have been given to man by the hermit Manu. This
personage has nothing in common with the Manu of the smrti except his name, but
the choice of his name does emphasize the separation of the texts from the world of
Buddha. The laws of Buddha reveal the conditions of salvation; those of Manu, the
bringer of the law from the walls of the world, determine the conditions of social life.
However, the law of the dhammasatthas, like the sastras, transcends the world it
rules. It is bound to the cosmic order and is free from the will of men. It was a
universal law in the Hinayana Buddhist world. 36

In pre-twentieth-century Thailand, we also have a dhammasattha dating from the

fourteenth century. According to this text the law laid down had authority only when
it conformed to dhammasattha precepts, only when it expressed the royal will in
accordance with the view of nature expressed in the texts of the law. But it did have
the effect of putting the king in the center of the legal world, and the texts became a
more immediate foundation for the justification of kingly power than was the case in
India.

This is characteristic also of the Javanese and Malay texts; indeed, the over-
whelming impression one gets from such texts is that, although they do contain rules
for the distribution of obligation, their main characteristic is concern with the nature
of royal power, its acquisition and its use according to the precepts of the received
texts.37

Power in Javanese thought is both concrete and constant in quantity. It follows, then,
that later generations may acquire and utilize the power of long-dead heroes and
gods. It means also that power is concentrated at the center, in the ruler, so that
central government is essentially an extension of the ruler's personal household. The
ideal form of temporal power is a world-empire into which all entities are com- bined
in a coherent unity. The existence of this unity is itself defined in the proper use of

34
ibid. p. 34.
35
Hooker, p.217.
36 ibid.
37 Ibid., p.216

11
power and through the proper conduct of individuals, which must be in accord with
dharma.38

Dharmarajya

To the question whether there was a rule of law prevalent in ancient India, evidence
for a resoundingly affirmative answer is borne out by the great epic texts. The
message of these texts is clear that the King was not above the law. Sovereignty was
based on an implied social compact and if the King violated this traditional pact, he
forfeited his kingship. It refutes the view that the kings in ancient India were despots
who could do as they pleased without any regard for the law or the rights of their
subjects. Coming to the historical times of the Mauryan Empire, Kautilya described
the duties of a king the Arthasastra in the following terms, “In the happiness of his
subjects lies the King’s happiness; in their welfare his welfare; whatever pleases him
he shall not consider as goof, but whatever pleases his people, he shall consider as
good.”39
One of the most distinguishing aspects as between the concept of the law as defined
in the Western jurisprudence and that as defined in Dharmasastras is that whereas
the imperative command of the king constituted the law according to the former,
under the concept of dharma, the law was a command even to the king and was
superior to the king. This meaning is brought out by the expression 'the law is the
king of kings'. The doctrine 'the king can do no wrong' was never accepted in ancient
Indian constitutional system. Tirukkural, says that a king is assured of heavenly
status if he makes the wrongdoer feel the weight of falling sengol, provided the light
of justice is hidden in that blow of sengol.40

Another aspect discernible from the definition of 'law' given in the Brihadarayaka,
Upanishad and accepted in the Dharmasastras is that the law and the king derive
their strength and vitality from each other. It was impressed that the king remained
powerful if he observed the law and the efficacy of the law also depended on the
manner in which the king functioned, because it was he who was responsible for its
enforcement. There was also a specific provision which made it clear to the king that
if he was to be respected by the people, he was bound to act in accordance with the
law.

Thus the first and foremost duty of the king as laid down under dharmasastra was to
rule his kingdom in accordance with the dharmic law, so that the law reigned
supreme and could control all human actions so as to keep them within the bounds
of the law. Though dharma was made enforceable by the political sovereign -the
king, it was considered and recognised as superior to and binding on the sovereign
himself. Thus under Indian ancient constitutional law (Rajadharma) kings were
given the position of the penultimate authority functioning within the four corners of
Dharma, the ultimate authority. Rules of dharma were not alterable according to the
whims and fancies of the king. The exercise of political power in conformity with
"dharma" was considered most essential. This principle holds good for every system

38 Ibid.
39
Nazeer, p.7.
40
Tirukkural, 61.

12
of government and is a guarantee not only against abuse of political power with
selfish motives and out of greed but also against arbitrary exercise of political power.

The most rigid enforcement of obligations and duties form, side by side with the
most lavish grant of rights and privileges to, both the governor and the governed
explain the seeming inconsistency and paradox that characterise the dharmasastra,
and the great complementarity between the theoretically despotic and the practically
democratic features of the political organisation. This is a sound political maxim and
is based on the observation of the fact that the peoples’ interests and opinions do in
most cases differ, and insightful decision making is required at the political. Random
scattering of the public opinion requires mediation and guidance from the
government.41

In deciding upon measures the king should be guided by the truth ‘voice of people is
voice of god’. Thus though the king is himself a god, the god of the king is the people.
The king has been described in dharmasastra as their servant getting remuneration
for his work. The peculiar dualism and integration in the king’s position have been
very unhesitatingly indicated in the Sukraniti.42 The king is a god no doubt, but
Dharmasastra do not consider him infallible. The limitations are fully recognised,
and moral as well as constitutional restrictions are imposed upon him as upon other
men.

The theory of the divine right of Monarchs has therefore to be understood with great
modifications and the Western notions of about the infallibility and divinity of Kings
and Popes must not be transplanted into the study of Indian Socio-political
institutions.43 The theory that a man may be omniscient is rejected altogether in the
Dharmasastra for the very nature of the case goes against the idea. To the argument
of physical magnitude, extensity and vastness of political interests is added that of
intellectual limitations and incapability of man. Man cannot be omnipresent, he
cannot also be omniscient, and therefore he must never be made omnipotent. 44

The true character of Indian jurisprudence is therefore different from that of the
Anglo-American system. The obedience to the Shruti and Smriti etc., was not due to
any political authority of their authors, but the veneration in which they were held by
those for whom these writings were intended. These lawgivers showed admirable
practical good sense in prescribing rules. While apparently professing to follow the
Divine Laws and Commands as found in the Vedas and claiming simply to interpret
and explain them to the general public, in reality the Dharmasastra so moulded
these texts as to bring them in conformity with the general sense of their followers—a
fact which secured them a following and obedience which was as universal and
strong as that secured by a political authority.

It has also to be understood well that the area of the jurisdiction of central power in
ancient India was limited by the wide autonomy of the local bodies, of village and
town governments, and of autonomous, economic, religious and military
organizations. Their consent in the rules of dharma, which touched them also, had to

41
Sukraniti, p.51.
42
ibid.
43
ibid., p.54
44
ibid., p.56

13
be taken into account by any ruler. The idea that the central power was the monistic
sovereign did not reflect the reality of social life in India. In the life of the common
man, the direct impact of the central power in the country or region was not
significant. Society was constituted of many social groups which were voluntary,
hereditary, functional and provisional with several groups performing multiple
functions. The legitimacy and authority of all these social groups was derived from
the same source of dharma.

The economic and social support of the central power came from the allegiance and
cooperation of these diverse social groups which were fairly autonomous in their day
to day functioning. They followed their own dharma which was usually in
consonance with the dharmic law or legal culture of the land. Thus the central
political organisation was not omnipotent or omnipresent like the fictional sovereign
of the legal positivism. It was only one of the many governing social and religious
organizations, often the primary, but not one that touched the lives of people deeper
than the others. Dharmic law was essentially a pluralist legal culture which included
and transcended the formal command of the political sovereign.45

As a holistic legal system Indian jurisprudence emphasized and instrumentalised the

intricate connection between different interlinking elements of the whole experience
of human life. Indian law principles were in opposition to the classical positivist
theories of law. Indian law concepts thus fall firmly within the theoretical parameters
of the sociological school of jurisprudence, which treats legal rules as organically
grown and socially tested normative orders and therefore does not accept the
domination of legal absolutism or positivist.

A deeper analysis of ancient Indian legal culture yields a systemic, multifaceted truth
inherent in dharmic law, which never developed the aspiration to rule from above in
absolutist legal fashion but sought to rule from within the society and individuals.
Legal regulation from above, in the absolutist sense, may be apparently prominent,
but there are deeper levels of legal regulation which can be ignored only at great cost.
Dharmic law and its underlying philosophy and legal culture does not simply accept
the simplistic impression that legal rules can solve all problems. In Indian cultural
conceptualization, law is eternally and intrinsically connected with other and higher
spheres and levels of life.46

It was the influence of the Hindu view of life, as given in the dharmasastra, that
influenced the ruler and the ruled, and promoted their harmonious relations, and
facilitated for both the moderation of their actions in accordance with the common
ideals of coexistence. The best of all guarantees of good government in the
dharmasastra was in bringing up the king and his ministers in the same ideals as the
common man, and make both realize the supremacy of dharma as the both the letter
and the spirit of the human law. It is only when human life is seen in the perspective
of cosmic coexistence, and how important the self is as part of the cosmic reality and
how all existence is interconnected in the common process of creation and
transformation, that a proper sense of rules and values can be gained. The function
and value of dharmasastra is to show the path to this realisation. 47

45
Aiyangar, 2018, p.179.
46
Menski, 2003, p.42; Pal, 1958; Purohit, 1984; Spellman, 1964; Rocher, 1972.
47
Aiyangar, 2018, p.180.

14
India’s legal culture or Dharmic law is alive and well at several conceptual levels of
law, and it enables modern India’s creative use of Indian concepts in seeking to
construct a justice-focused legal system that does not need the crutches of a foreign
legal order, but remains open to modification and reform as and when circumstances
suggest it. Thus, to argue that the ancient Indians did not have ‘law’ would be plain
nonsense. If indeed all human societies have law, why should ancient Indian societies
be any different? The simple answer is that the ancient Indians conceived of law
differently from Western cultures. Dharmic law, as is widely acknowledged,
represents a culture-specific form of natural law.48

Both at the conceptual level and within processes of official law-making and policy
formulation, concepts and rules of dharmic law retain a powerful voice in how India,
in the 21st century, is seeking to achieve social and economic justice for over a billion
people. It holds its position as a major legal system of the world, often despised and
largely unrecognised, but massively present in the world of the twenty first century.
At least a billion people, roughly a seventh of the world citizenry, remain governed by
dharmic law in one form or another. Numerous decisions of the Supreme Court of
India and the High Courts and subordinate judiciary bear witness to this social
reality.

State law and dharmic law are not incompatible, both interact with each other in
many ways that we cannot even begin to analyse. Indian traditions are manifestly
much more than folkloristic decorations, and dharmic law is a demanding multi-
disciplinary arena which seems to put researchers off. Dharmic law has always been
much more than a fossilised book law that could be abolished by the stroke of a pen.
It could not simply be reduced to redundancy in the Austinian fashion, that taught
Indian leadership to embrace legal positivism as a philosophy and top-down law-
making as a magic tool of development. Justice Katju has observed that in ancient
and medieval India there was tremendous development not only in the fields of
science and philosophy, but also in the field of law. However, he lamented that the
advent of British rule denied us the benefits of these developments as the alien rulers
made it a policy to demoralise and denigrate us by propagating the idea that Indians
were a race with no worthwhile achievement to their credit.49

Rajdharma

The foregoing brief discussion will make it clear that the rules contained in the
dharmasastra relating to dharmarajya as the force of law had their roots deep down
in the most ancient Vedic tradition and that the authors of the dharmasastra were
quite justified in looking up to the Vedas as a source of dharma. But the Vedas do not
profess to be formal treatises on dharma; they contain only disconnected statements
on the various aspects of dharma; we have to turn to the smrtis for a formal and
connected treatment of the topics of the dharmasastra. Indian classical texts like the
Manusmriti, and Sukraniti, which are in the category of Nitisastra, Arthasastra,
Dharmasastra, Tirukkural, or Dharmasutra deal mainly with the specific topics

48
Jayaswal, 2004; Dutt; 1979; Swain, 2004; Motwani, 1958.
49
(Katju, p. 7).

15
implied by such categories as Dharma (morals), Artha (interests) and Kama
(desires) as opposed to Moksa (salvation).50

Dharmasastra texts like Manusmriti, Yagyavalkyasmriti and Sukraniti reveal keen

insight into the principles of strong and good government and political wisdom that
find place in Indian texts of the time. These works are based on the principle that the
security of the state depends not on the passive virtue of obedience to the laws
promulgated by it but on the active cooperation of the people with it in carrying these
laws into effect. The structure and functioning of the Indian political system of these
times has many points which have anticipated the latest principles of good
governance administration and which have yet to be realised by modern States. 51

In these texts the existence of conflicts, disunions, rivalry and factional spirit is
considered to be the greatest of all dangers to social peace and political security. The
bond of civil society is torn asunder when the moral system is disrupted. Hence the
greatest political offender and the most criminal sinner is he who by his conduct
promotes the breach between those who should normally live in amity and peace.
The general violence of criminal activity in hindu jurisprudence is seen as the most
insidious threat to the order of law.

The main problem with violence is less the injury it causes to some person or group
than the threat it poses to the state or other legal authority. Sukraniti provides
against such offences by the socio-political decree issued by the king.52. “According to
the dictates of Sukraniti the execution of bad men is real ahimsa i.e., mercy. One is
deserted by good people and acquires sins by always not punishing those ought to be
punished, and punishing those who ought not to be, and by being a severe punisher”.
53

A state is a state because it can coerce, restrain, compel. Eliminate control or the
coercive element from social life, and the state as an entity vanishes. Dharma is the
very essence of statal relations. No danda, no state. A sanctionless state is a
contradiction in terms. The absence of dharma is tanta-mount to matsya-nyaya or
the state of nature. It is clear also that property and dharma do not exist in that non-
state. These entities can have their roots only in the state. The whole theory thus
consists of three fundamental rules : no dharma or sengol, no state; no state, no
dharma; and no dharma, no individuality and property.54

Manusmriti considers dharma to be a tremendous force for discipline, hard to be

controlled by persons with undisciplined minds, it destroys the King who has
swerved from duty, along with his relatives. Then it will afflict his fortress and
kingdom, the world along with movable and immovable things, as also the sages and
the gods inhabiting the heavenly regions. Therefore punishment shall be given
appropriately to men who act unlawfully, after having carefully considered the time
and place, as also the strength and learning of the accused. When meted out properly

50
(Buhler, 2008, 2018; Oliville, 2000; Lariviere, 1984; Lingat, 1973).
51
(Sukraniti, p. 39-40).
52
Sukraniti, p. 40.
53 ibid. p. 13).
54 Sarkar, 1922, p. 197.

16
after due investigation, punishment makes all people disciplined and happy; but
when meted out without due investigation, it destroys all things. 55
Discipline cannot be justly administered by one whose mind is not disciplined, or
who is addicted to sensual objects, or who is demented, or who is avaricious, or
whose mind is not disciplined, or who is addicted to sensual objects. Discipline can
be administered by one who is pure, who is true to his word, who acts according to
the Law, who has good assistants and is wise. The King who metes out punishment in
the proper manner prospers in respect of his three aims of virtue, wealth, and
pleasure; he who is blinded by affection, unfair, or mean is destroyed by that same
punishment.56 In the same spirit, Tirukkular says that if the sengol of the king does
not rest on justice, and if he acts without wisdom, he will see his wealth and prestige
fade away.57
Having duly ascertained the motive and the time and place, and having taken into
consideration the condition of the accused and the nature of the offence, punishment
should be given to those deserving punishment. Unjust punishment is destructive of
reputation among men and subversive of fame; in the other world also it leads to loss
of heaven; he shall therefore avoid it. The king, punishing those who do not deserve
to be punished, and not punishing those who deserve to be punished, attains great
ill-fame and goes to hell.58
In Sukraniti, punishment emphasizes rectitude and deterrence over retribution.
In fact, dharma in this view is what makes law practical at all as it contains a
recognition of human imperfection and fallibility. Law in its fullest sense can only
exist in the world if dharma is there to correct the inevitable failings of human
beings. Without dharma, law remains an elusive ideal to which no one can aspire.
With dharma law becomes satya, the truth that upholds social and individual
righteousness. Dharma simultaneously guarantees the overall stability of the social
system and development of the individual. In Tirukkural, the value of the word of the
priest, and the value of the honour for men, is considered to rest on the value of the
sengol held by the king.59

Sukraniti sees dharma as a two edged sword that cuts both ways. On the one hand it
is a corrective of social abuses, a moralizer purifier and civilizing agent. As the
Sukraniti says it is by the administration of dharma that the State can be saved from
a reversion to matsya-nyaya and utter annihilation and it is by dharma the people
are set on the right path and they become virtuous and refrain from committing
aggression or indulging in untruths. Dharma is efficacious moreover in causing the
cruel to become mild and the wicked to give up wickedness. It is good also for
preceptors and can bring them to their senses should they happen to be addicted to
an extra dose of vanity or unmindful of their own vocations. Finally, it is the
foundation of civic life, being the ‘great stay of all virtues’ and all the ‘methods and
means of statecraft’ would be fruitless without a judicious exercise of dharma. Its use
as a beneficent agency in social life is therefore unequivocally recommended by
Sukra.60
55 Manusmriti, Vol.5, p.289-90.
56 ibid. p. 292-93.
57
Tirukullar, 57.
58
Manusmriti, p. 282.
59
Tirukkural, 55.
60
Sarkar, 2016, p. 513-14.

17
But on the other hand dharma is also a most potent instrument of restrain the ruler
himself, to the powers that be. The maladministration of dharma says Kamandaka
leads to the fall of the ruler. Manu ls does not hesitate to declare that dharma would
smite the king who deviates from his duty from his ‘station in life’. It would smite his
relatives too together with his castles territories and possessions. The common weal
depends therefore on the proper exercise of the dharma. Manu would not allow any
ill disciplined man to be the administrator of dharma. The greatest amount of
wisdom accruing from the help of councillors and others is held to be the essential
precondition for the handling of this instrument.61

“Brihadaranyaka Upanishad declares that the ruler too is obliged to follow dharma
on pain of sanction for infraction. Dharma was all encompassing from natural
justice, to equality, to considerate treatment of all mankind and exhortation, to
codetermination for betterment of humankind. Betterment of each individual is the
raison d’etre for later societies to identify and recognise human rights as basic and
inherent in humans”.62

In the two edged sword of the dharma then we encounter on the one side interests of
the State and on the other individual morality, virtue, dharma, etc. In fact, it is to
‘educate’ man out of the primitive license and beastly freedom that government has
been instituted. The State is designed to correct human vices or restrain them and
open out the avenues to a fuller and higher life. And all this is possible only because
of dharma. The conception of this eternal co-relation in societal existence is one of
the profoundest contributions of the political philosophy of the Hindus to human
thought. This concept changes the emphasis from what law restrains to what law
enables. It suggests that every legal system must contain morals and ethical elements
which can be understood in religious terms.63

In accordance with the doctrine of dharma, the state is conceived as a pedagogic

institution or moral laboratory, so to speak. It is an organization in and through
which men's natural vices are purged, and it thereby becomes an effective means to
the general uplifting of mankind. The Hindu theorists therefore consider the state to
be an institution " necessary " to the human race if man is not to grovel in the
condition of matsya-nyaya under the law of beasts. Man, if he is to be man, cannot
do without political organization. He must have a state and must submit to sanction,
coercion and punishment — in a word, to dharma.64

In recent years social scientists have proposed a link between social cohesion,
religion, and law. Social scientists have argued that participation in religious and
cultural rituals strengthens group solidarity and improves social harmony. Recently,
researchers have tested this hypothesis through both systematic field studies and
laboratory experiments. Laboratory studies, for example, have shown that
synchronous activities foster greater solidarity and more cooperation. This suggests
that deep in our evolutionary history, social cohesion was favoring social norms and
practices that increased solidarity.65

61
(ibid.).
62
GOI, p.29.
63
Sarkar, 2016, p.514.
64
Sarkar, 1922, p.203.
65
Henrich, 2016, p.230.

18
While group-bonding rituals initially evolved to make face-to-face communities
cooperative and cohesive, gradually these practices transformed for the scaling up of
cooperation to larger imagined communities in which thousands of individuals
interact, exchange, and cooperate. To facilitate this degree of scaling up, researchers
have argued, cultural evolution, by anchoring on human species’ innate capacities to
entertain the existence of supernatural agents, led to the emergence of increasingly
powerful and morally concerned deities (or supernatural forces) who monitor and
punish non-cohesive or antisocial activities, such as murder, theft, or adultery.66

Over time, faith and beliefs about these supernatural forces evolved further to
increase their effectiveness: Gods expanded their range of moral concerns (e.g.,
openness toward strangers), ability to monitor norm violators (e.g., mind-reading
abilities, omniscience), and power to punish (e.g., controlling the afterlife). Here,
consistent with models of social norms based on punishment, gods were turned into
super punishers who could impose penalties in this life and the next. 67

Researchers have shown that individuals from diverse cultures and traditions who
report stronger beliefs in more powerful moralizing gods are more fair-minded in
experiments with anonymous persons and more supportive of public goods. To
examine whether supernatural agents can indeed cause people to behave more
cooperatively, many studies have shown that when imbued with thoughts of god and
specifically thoughts of supernatural punishment, believers become more fair-
minded, cooperative, and honest with strangers. Together with historical and cross-
cultural data supporting the claim that gods became increasingly morally concerned,
powerful, and punishing over historical time, the psychological evidence suggests
that certain religions may have evolved culturally in ways that have altered people’s
psychology and thereby permitted the cohesiveness of societies. 68

Conclusion

In the quest for perfection in individual conduct and social order, the dharmasastra
explored and prescribed the ways of good conduct of individuals and arrangements
for considerable degree of social cohesion by balancing between harmonious
coexistence and individual autonomy. Flowing gracefully with skill and brevity in
poetic expression, the insightful revelations of Vedic sages blended intuition,
philosophy and conviction to explore and conceptualise a macrocosmic order of high
moral and social conduct in which individuals and societies could grow and flourish
in the path of justice through willing obedience to the laws of nature and society.

A golden thread of the spirit of justice inspired the dharmasastra texts and the
institutions of legal systems to internalise the high moral and cosmic order. The
availability of a diversity of adjudicating mechanisms to suit the location and
profession of the litigants and serve the people in their own intimate environment,
collegiate character and strict impartiality of courts and simplicity of procedure were
the predominant features of the legal and judicial system given in the dharmasastra.

66
Norenzayan et al. 2019, p.2; Lombard, 2022.
67
(Purzycki, p.1)
68
(Henrich, ibid.).

19
The approach of the dharmasastra of combining truth with justice, equity with law
and discretion with reason has a universal message for modern law and
jurisprudence. The law and justice system in ancient India was influenced by a
dharma based understanding of justice as the expression of the absolute reality. The
persuasion of all human beings to do good and avoid evil was the means chosen by
the dharmasastra for conformity to a high moral and social order. Although these
systems were a product of their times they have an abiding value for truth and justice
in contemporary human society.

The Vedic conception of law is very different from the positivist of modern law. The
positivists divide reality into that which we can say clearly and the rest, which we can
better pass over in silence. But what we can say clearly amounts to next to nothing? If
we omitted all that is unclear we would probably be left with completely un-
interesting and trivial repetition of words. By paying too much attention to what we
perceive with our senses, positivists lose connection with the essential values of
human life.

Positivist view assumes that in the work of arguing and deciding cases in thousands
of courts 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, is
uncertain, entangled, complementary, emergent and creative. Like other branches of
administration, it arrives at decisions by the logic of probabilities rather than the
logic of certainty.

The belief regarding the existence of a fact is thus founded on a balance of

probabilities. Within the wide range of probabilities the court has often a difficult
choice to make but it is this choice which ultimately determines where the
preponderance of probabilities lies. The concepts of probability, and the degrees of it,
cannot be expressed in terms of units which constitute proof beyond reasonable
doubt. There is an unmistakable subjective element in the evaluation of the degrees
of probability and the quantum of proof.

Vedic concept of law embodies both the notion of justice, equity and good conscience
as well as powers of the judges to craft outcomes that ensure a just outcome and
effect complete justice. The demands of justice require a close attention not just to
positive law but also to the silences of positive law to find within their intersections, a
solution that is equitable and just. In Vedic tradition, the judges were empowered to
do ‘complete justice’ without being always bound by the provisions of procedure.
This power was undefined and uncatalogued, to ensure elasticity to mould relief to
suit a given situation. The fact that the power was conferred only on the
knowledgeable judges of good conduct and conscience was an assurance that it
would be used with due restraint and circumspection.

20
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_________________________________________

Presented at the National Conference on Bharatiya Jurisprudence,

Banaras Hindu University, Varanasi, 16th-17th March 2024.

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