Tracing India’s Constitutional History: Part 1

Introduction

Most people, including many law students in India are under the impression that modern constitutional jurisprudence evolved in India only with the advent of the British. While most of our textbooks on law and jurisprudence make our students learn concepts and theories propounded by eminent western legal philosophers and jurists like Austin and Salmond, they hardly say anything on traditional Indian legal knowledge. And if anything is said at all, it is portrayed as being too primitive, a product of an ancient tribal society.

Reality is however, very different. A cursory reading of early Hindu scriptures brings to light the fact that ancient Indian jurisprudence was extremely well developed, and in many cases, was far more advanced than many modern jurisprudential concepts. Most of the so called modern concepts of jurisprudence seem to have been in vogue in the legal systems of ancient India – some as early as a thousand years before the birth of Christianity. Also, a number of early Hindu scriptures starting from the Vedas, Puranas, Smritis, the great epics and the Dharmashastras, all make grand expositions even on the most intricate aspects of the law.

Several seminal works have been authored on the evolution of law in ancient India.

As part of an ongoing effort to disseminate knowledge on traditional Indian jurisprudence, IndiaFacts has initiated a multipart series that traces the development of law with special focus on constitutional law in ancient India.

Dharma as the Basis of law

Dharma is the central term in Indian jurisprudence. This one word is the edifice upon which the large and complex social structure of the country was built, and continues to remain so. The term Dharma clearly has the greatest import and is the most difficult to define. It is impossible to find a corresponding word in any other language. For instance, Dharma means justice; it is the yardstick to measure what is right in a given circumstance; it provides a code for moral, ethical, religious and pious conduct; it advocates being helpful to lesser beings; it stresses on performing one’s duty; it recommends doing works of charity like giving alms to poor; it also refers to custom or usage; it is at once the force of law, and is considered to be a valid royal edict. However, a clear strand of thought that seems to be evident everywhere is the understanding that Dharma is that which helps the upliftment of all, and that which ensures the welfare and sustenance of all. In other words, Dharma is a definite value system that was to be followed by everybody for the betterment and welfare of the country and society.

Dharma was regarded as the bedrock of Indian society. All values that determined and regulated the activities and behavior of the individual with the society emanated from Dharmic values. The importance attached to Dharma is clearly brought out in this verse from the Taittiriya Samhita:

Dharmo Vishwasya Jagataha Prathisthaa | Loke Dharmishtam Prajaa Upasarpanti |
Dharmena Paapamapanudanti | Dharme Sarvam Pratishtitam| Tasmaat Dharmam Param Vadanti ||

Dharma constitutes the foundation of all affairs in the world. People respect one who adheres to Dharma. Dharma insulates man against all sinful thoughts and actions. Everything in this world is founded on Dharma and therefore, Dharma is considered Supreme.

Because Dharma is used in the widest sense of the term as well as in a wide range of circumstances, it is clear that it embraces almost all types of righteous conduct covering every aspect of life that is essential for the sustenance and welfare of the individual and the society.

The evolution of Dharma

The concept of Dharma was evolved as a solution to the eternal problems confronting the human race, originating from natural human instincts. Manu, one of the leading lawgivers, states that the force behind every action of a human being is his desire (kama). The pursuit of desires gives rise to conflict of interests among individuals and other natural human impulses such as anger (krodha), passion (moha), greed (lobha), haughtiness (mada) and rancour (maatsarya) – known collectively as arishadvarga – necessitated the regulation of human behavior.

In the Shanti Parva of the Mahabharata, Bhishma holds that there once existed an ideal state of affairs where people protected each other according to Dharma. Eventually people strayed from the path of Dharma after being overpowered by sensual desires, passion and greed. After this, the strong began to harass the weak. It was then that the three fold ideal of Dharma-Artha-Kama was laid down as a remedy to secure the welfare and happiness of all. In addition to these three ideals applicable to the material world, a fourth ideal of moksha—securing eternal happiness in the afterworld—was added. The object of laying down the fourfold ideal was that desire (Kama) for material pleasure was to be entertained and enjoyed only in conformity with Dharma and the attainment of the final goal of moksha was possible only if both kama (desire) and artha (material wealth ) were pursued through means that were in conformity with Dharma.

Both desires and the means to fulfill the desires were regulated. In essence, all human action was made subordinate to Dharma, the eternal law.

Dharma – the integral view of life

Although Dharma covered almost every aspect of human action, it was never meant to suppress the natural desires of man. The beauty of the Hindu thought system lies in its integrated and celebratory approach towards life. The proponents of Dharma fully appreciated that fulfillment of human desires was an essential aspect of life, but were clear that unless the desires were regulated by dharma, it was bound to have undesirable consequences on society.

This verse from the Manusmriti makes this clear –

Dharmarthavruchyate shreyaha kaamartha dharma eva cha | Artha yeveha vaa shreyastrivarga iti tu sthitihi ||
Parityajedarthakaamou Yav syaataam Dharmavarjitau |

For achieving welfare and happiness some declare Dharma and Artha are good. Others declare that Artha and Kama are better. Still others declare that Dharma is the best. There are others who declare that Artha alone secures happiness. But the correct view is that the aggregate of Dharma, Artha and Kama will alone secure happiness. However, Kama and Artha must be rejected if it is contrary to Dharma.

And this integrated approach to Dharma encompassed almost every aspect of human conduct such as religion, rules regulating personal conduct of individuals, life as a student, as a teacher, as a house-holder, as a husband, as a wife, as a hermit including regulations pertaining to food. Although dharma touched all these aspects of life, the essence of Dharma meant a clear understanding and adherence to a set of eternal values. We can turn to the Shanti Parva again:

Akrodhaha Satyavachanam Samvibhagaha Kshama Thataa| Prajanaha Sveshu Daareshtu Shouchamdroha Yeva cha || Aarjavam Brutyabharanam  Navaite Saarvavarnikaaha |

Truthfulness, to be free from anger, sharing one’s wealth with others, forgiveness, procreation of children from one’s wife alone, purity, absence of enmity, straightforwardness, maintaining persons dependent on oneself are nine Dharmas of persons belonging to all varnas.

These and other such values have stood the test of time and are universal in their appeal. It was for this reason that supremacy of Dharma was repeatedly propounded.

Rule of law and Dharma

The supremacy of Dharma inherently incorporates the principle of rule of law. Nobody, not even the king, was higher than Dharma. Sovereign in the real sense was Dharma alone and not any other authority. This principle is not different from the modern concept of rule of law – which says that all authorities in a State are subordinate to the law of the land. And as scrupulous adherence to the rule of law is said to be beneficial to the entire community, so was adherence to Dharma.

Manu explains how Dharma protects those who protect it –

Dharma yeva hato Hanti Dharmo Rakshati Rakashitaha | Tasmadharmo na hantavyo maa no dharmo hatovadhit||

Dharma protects those who protect it. Those who destroy Dharma get destroyed. Therefore Dharma should not be destroyed so that we may not be destroyed as a consequence thereof.

Rules of Dharma were meant to regulate the conduct of the individual towards the society and of the society towards the individual in all respects through social and political institutions. Rights, liberties, desires and interests of individuals were restricted so as to not infringe the rights of other individuals and to create a harmonious society. At the same time, society’s conduct was restricted to not unreasonably infringe on the rights of individuals. Therefore, the practice and protection of Dharma was mutually beneficial to both the society and the individual.

Rajadharma or Constitutional law

The scope of Dharma extended to even include the manner in which a society must be governed, the powers, duties and responsibilities of the king and other aspects of governing a state: a set of principles known as Constitutional law in contemporary parlance.

Narada, in his Narada Smriti, explains the evolution of this aspect of Dharma. He refers to a time in the past where legal proceedings were nonexistent because people were habitually virtuous. However, as the standard of behavior declined, the system of legal proceedings for enforcement of rights and punishments of wrongs was established and the king was appointed to decide lawsuits as he had the power to enforce the law and punish wrongdoing. Narada then says that it was at this stage that positive civil, criminal and other laws including the law regulating the establishment of courts, their powers and functions were laid down. Thus, this was the beginning of the evolution of Rajadharma in the true sense.

Now that the power to enforce law was entrusted with the king, the need to clearly define law arose. It had to be broad enough to state the object of the law and at the same time, it had to clearly define its scope and nature. We find such a definition in the Brihadaranyaka Upanishad:

Tadetat – Kshatrasya Kshatram yad Dharmaha | Tasmadharmatparam nasti | Artho Abaliyaan baliyaam samaashamsate dharmena | Yatha Raajnaa yevam ||

Law is that which is the king of kings; nothing is superior to law. The law aided by the power of the king enables the weak to prevail over the strong.

This made it completely unambiguous: while the law was the real sovereign and commanded utmost respect even from the highest authorities, the object of the law was to protect the people. This is again not very different from Austin’s definition of law: law consists of general commands issued by the State to its subjects and enforced if necessary by the physical power of the State.

However, there exists one distinguishing feature between the Indian and the western system of jurisprudence. In the words of Justice Rama Jois:

Whereas the imperative command of the king constituted the law according to western jurisprudence, under the Hindu jurisprudential concept, the law was a command even to the king and was upheld as superior to the king. This is brought out by the expression, “law is the king of kings”.

It is quite clear that Indians had arrived at the concept of rule of law much earlier than their western counterparts. Implicit in this is also the fact that law and the king derive vitality from one another. The king remained powerful only if he stayed faithful to the law.  Equally, the efficacy of law depended on the manner in which the king functioned because he was responsible for its implementation. If the king was capable, then the law touched the people in a just way. If the king was ineffectual or unworthy, the law failed to protect the people it was meant to protect.

Interestingly, Dr. BR Ambedkar echoed similar views while speaking about the Constitution of India:

However good a constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.

Thus it is very clear that in the Hindu constitutional law framework, the king was the penultimate authority. The king was more like the arbiter of justice than the source of law.

And so, if the king was not the source of law, what then was the source of law?

Tejasvi Surya

An alumnus of IndiaFacts, Tejasvi Surya is an Advocate practicing at the High Court of Karnataka, at Bangalore. He is also the co-founder of Centre for Entrepreneurial Excellence, an organization running projects in the spheres of education, employment and entrepreneurship. Tejasvi is currently the State Secretary for Bharatiya Janata Yuva Morcha, Karnataka.