On December 6, 1948, when the Constituent Assembly was debating the concept of Dharma juxtaposed with the concepts of secularism and religion, a prominent Left face – the general secretary of the Forward Bloc HV Kamath (a former ICS Officer who quit his lucrative post to join Netaji in 1938, and who, in 1966, proposed reservations for people from Pakistan-Occupied Jammu and Kashmir in Parliament) said something highly significant:
“When I say that a State should not identify itself with any particular religion, I do not mean to say that a State should be anti-religious or irreligious. We have certainly declared that India would be a secular State. But, to my mind, a secular state is neither a God-less State nor an irreligious or an anti-religious State. Now, Sir, coming to the real meaning of this word ‘religion’, I assert that `Dharma‘ in the most comprehensive sense should be interpreted to mean the true values of religion or of the spirit. Dharma, which we have adopted in the crest or the seal of our Constituent Assembly and which you will find on the printed proceedings of our debates: (Dharma Chakra pravartanaya )-that spirit, Sir, to my mind, should be inculcated in the citizens of the Indian Union.”
Apex Court Motto
After about a year, when our Supreme Court was inaugurated on January 28, 1950 in the old Parliament Building (then called the Chamber of Princes), the Apex Court adopted an emblem featuring Dharmachakra on the top of Lion Capital of Ashoka with its motto scripted Yato Dharmastato Jayah.
As Supreme Court turns 75 this year, it is pertinent that we chronicle its historic journey and contemplate the challenges in realising victory of Dharma inscribed as its insignia. Motto is said to have originated from the Latin word Muttum (which travelled into Italian) meaning ‘word’. Interestingly Maatu in Kannada has the same meaning – a word, vocable, or speech. Motto is, thus, existential or what the institution stands and speaks for. Since the motto of the Apex Court has Dharma as its central dictum, it is apt to analyse how the court has interpreted it in its pronouncements.
Dharma in judicial diction
The profundity of the word dharma has been lucidly explained by the Apex Court in its judgement delivered in the 1996 in the case of AS Narayana Deekshitulu Vs State of Andra Pradesh . Very often the words “religion” and Dharma are used to signify one and the same concept or notion; to put it differently, they are used inter-changeably. This, however, is not so, as would become apparent from what is being stated later, regarding our concept of Dharma. I am of the considered view that the word religion in the two articles has really been used, not as is colloquially understood by the word religion, but in the sense of it comprehending our concept of Dharma. The English language having had no parallel word to Dharma, the word religion was used in these two articles. The difference between religion and Dharma is eloquently manifested when it is remembered that this Court’s precept is “. It is apparent that the word Dharma in this cannon or, for that matter, in our saying: does not mean religion, but the same has been used in the sense defined in the aforesaid two dictionaries. This is how the President of India, Dr Shanker Dayal Sharma, understood the word dharma in his address at the First Convocation of the National Law School of India University delivered on September 25, 1993 at Bengaluru.
The core challenge, thus, before the Apex Court today, is to inculcate the true import of dharma contradistinguished from the term religion into our judicial and legislative space and psyche
Our Dharma is said to be Sanatana i.e. one which has eternal values; one which is neither time-bound nor space- bound. It is because of this that Rig Veda has referred to the existence Sanatan Dharmani. The concept of `dharma’, therefore, has been with us for time immemorial. The word is derived from the root `Dh.r’ – which denotes; `upholding’, `supporting’, `nourishing and `sustaining’. It is because of this that in Karna Parva of the Mahabharata, Verse-58 in Chapter 69 says:
“Dharma is for the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfilment of these objects is Dharma; that is definite.”
Dharma & Dispute Resolution
This clear and comprehensive elucidation of Dharma by the highest court of the land has to be the leading light for adjudication of disputes at all levels involving not only the dharmic issues but also the issues concerning places of worship, temple governance, affirmative action, marriages & family disputes, inheritance etc. Our criminal legislation, no doubt, has recently been liberated from its colonial vestiges, but the core criminal jurisprudence and administration also needs to be aligned with the concept of Dharma. With Dharma as the central core, the very model of justice administration and resolution will have to be premised on the concept of Dharma rather than making them adversarial and documentation based. The ultimate aim of justice is Dharma. As against this, the law based on the adversarial mode of dispute resolution only perpetuates conflicts and favours the rich and mighty.
The legislative and the executive need to make the law laid down on Dharma as their foundational basis for making legislation and policies on dharmic and allied issues. More importantly, there is a considerable scope for the courts to test and attest their dispute resolution on the anvil of the interpretation of dharma. Going by the interpretation of dharma by the Supreme Court, the concept and expanse of dharma is ever more encompassing and pristine than the often-employed jargons of “constitutionalism” or “constitutional morality”. To our Bharatiya psyche, perceiving the concept of dharma is more palatable than groping on these two weighty and technical terms.
Dharma is anything but religion
Now, let’s consider this concrete illustration. As held by the Apex Court, religion and Dharma – as notion and concept – are incomparably different. Yet, the legislation treats Hindu Dharma merely as religion just as it treats other book-based religions. The real culprit in many cases is the legislature as the law itself defines and reduces down the Hindu Dharma into an ism called – Hinduism. If the foundational premise is flawed, the logical sequel is bound to be defective.
The core challenge, thus, before the Apex Court today, is to inculcate the true import of Dharma contradistinguished from the term religion into our judicial and legislative space and psyche. Dharmantaran?
A change in the mode of worship cannot be a dharmantaran. The conversion often defined as dharmantaran in most legislations is a ludicrously flawed concept. It is impossible to change one’s dharma for it is perennial and undying. Furthermore, only if we understand the true import of Dharma, can we comprehend the Constitutional definition of Hindu which includes within it the entire Indic family – Jains, Buddhists, and Sikhs. The judicial institutions of our land need to eradicate the notion of separatism of Indic joint family, instilled by our Colonial masters, by propagating the true concept of Dharma.
Dharmic institutions as vanguards of mediation
The collective memory of our ancient judicial institutions and dispute resolution modes got effaced, as we, the land of dharma, remained enslaved in the imperialist clutches for ages. In October 2023, with the coming into force of the Mediation Act, 2003, a new era in dispute resolution commenced. While mediation was formalised and institutionalised, the Mediation Service Providers (MSPs) were statutorily defined and recognised. With this in place, the heavy skew and dependence on court-based dispute resolution, the essential Colonial bane,
is sought to be cured.
In fact, the temple institutions and other Indic worship institutions like Gurudwaras, Jain and Buddhist temples, for ages, have played a pivotal role in unifying the society by strengthening the institution of family.
A survey conducted by an NGO Daksh has found that property and family disputes account for about 76 per cent of total disputes in Bharat. Dharmic institutions can emerge as vanguards of the mediation mode of resolution in these domains. For several ages now, the elites as well as the laypersons have reposed unflinching faith in the dharmic institutions. With the Mediation Act in place, these institutions have the potential to emerge as epicentres of dispute resolution.
The Supreme Court, through National Legal Services Authority, needs to mainstream mediation as a prime mode of dispute resolution, by involving dharmic institutions at all levels. Except the core criminal cases, which of course are a crime against the State, all other genres of litigation can be resolved through dharmic intervention.
Dharma: unites and liberates
Though Dharma was scripted in the motto of our Apex Court, it was almost perceived as taboo, particularly in the judicial space. This is because Dharma, unjustly equated with religions and isms, was often perceived to be a dividing factor, thanks to the imperialist domination of our ethos and thought process. This has done incalculable harm to our society, particularly the legislative and justice dispensation process. It is time, the poignant elucidation of the concept of Dharma by Apex Court in several of its pronouncements, begins guiding our legislative and judicial processes.
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