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BHARAT JURISPRUDENCE
DHARMA
SHORT NOTES
1. Concept of dharma.
2. Bharat Jurisprudence.
a. The Spiritual Facet (Divine Order):
b. The Temporal Facet (Obligatory Duty):
c. The Natural Facet (Inherent Essential Quality):
III. Authoritative Sources of Dharma
V. Strategic Legal Adaptations under the BNS, 2023
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Bharat Jurisprudence represents the systematic study of the legal theories, philosophical structures, and justice dispensation mechanisms that have uniquely originated and evolved within the cultural and geopolitical landscape of India. Unlike Western legal systems, which are largely built on the monistic command theories of analytical positivism or state-centric codes, Bharat Jurisprudence is characterized by a sophisticated, two-fold historical layout.
[Image illustrating the dual pillars of Bharat Jurisprudence: Classical Dharma paired with Modern Social Action Litigation]
The first phase encompasses the classical, ancient philosophy of Dharmaāa comprehensive ethical-cum-legal framework that governed human conduct, kingly duties, and social ordering for millennia. The second phase maps the contemporary, progressive expansion of Public Interest Litigation (PIL), or Social Action Litigation, developed post-independence by the higher judiciary to make the supreme law responsive to the ground realities of the citizenry. Together, these two pillars form the core of indigenous jurisprudential science.
The development of legal theory in India owes an immense debt to classical indigenous thinkers whose advanced treatises on statecraft, evidence, and civil liabilities long anticipated Western models. Among the prominent ancient jurists and lawgivers of India were Manu, YÄjƱavalkya, NÄrada, Jaimini, Bį¹haspati, and Kautilya.
In the modern constitutional era, this rich legal heritage was refined and reconstructed by stellar jurists and statesmenāexplicitly including the architect of the Constitution, Dr. B.R. Ambedkar, alongside pioneering judges and advocates like Chief Justice M.C. Chagla, Chief Justice P.B. Gajendragadkar, Justice P.N. Bhagwati, Justice V.R. Krishna Iyer, and Nani Palkhivala. To explore this discipline systematically, we must first map the baseline parameters of Dharma.
The classical term Dharma escapes narrow definition, as its legal and moral parameters change dynamically depending on the socio-environmental context in which it is applied. Western legal writers frequently struggle to encapsulate Dharma within a single phrase, noting that it simultaneously includes religious righteousness, ethical morality, social responsibility, and statutory legal duties. Within sacred classical scriptures and legal treatises (DharmaÅÄstras), Dharma is conceptualized as the unalterable rule of conduct, the fixed principles of cosmic order, and the holistic body of personal and social obligations necessary to sustain civilization.
In the MÄ«mÄį¹sÄ SÅ«tras, the classical philosopher Jaimini anchored Dharma within a purposive, action-oriented framework. He established that Dharma is founded on divine revelation, which is inherently conducive to the sustained material and spiritual welfare of society.
Jaimini defined Dharma as that which is explicitly ordained, commanded, and authorized by the Vedas. Crucially, he posited that the ultimate test of Dharma rests entirely on Conductāit is defined by what an individual or a state actively executes in practice, rather than what they abstractly contemplate.
In ordinary modern conversation, Dharma is frequently misinterpreted as a mere synonym for a theological creed or institutional religion (SampradÄya). However, in legal science, Dharma possesses a far wider meaning than narrow sectarian religion. Religion and positive municipal law are merely separate, functional facets of the overarching matrix of Dharma.
To map its operational reach, classical jurisprudence organizes Dharma into three distinct structural dimensions:
a. The Spiritual Facet (Divine Order): The voluntary abidance by the laws of nature and the divine order, fostering spiritual alignment and internal moral clarity.
b. The Temporal Facet (Obligatory Duty): The binding code of socio-legal duties imposed upon an individual based on their position in the state and family. A classic example is RÄja-Dharmaāthe constitutional code of conduct governing kings and rulers, which forced them to utilize the centralized penal force of the state (Daį¹įøa) to protect citizens from anarchy, defend the weak, and enforce public justice.
c. The Natural Facet (Inherent Essential Quality): The unalterable, inseparable property or essential character of a physical thing or a cosmic element. For example, the Dharma of fire is to burn, the Dharma of water is to quench thirst, and the Dharma of a judge is to maintain absolute impartiality.
Ultimately, BhÄratÄ« jurisprudence establishes that the absolute essence of Dharma is anchored in Non-Violence (Ahiį¹sÄ), truth, and universal compassion, functioning as an internal guide to preserve human dignity and social harmony.
To understand how classical BhÄratÄ« jurisprudence established legal validity and checked human behavior, the legal system relies on four primary material and formal sources of Dharma.
The Årutisāencompassing the four primary Vedas (į¹g, Yajur, SÄma, and Atharva)āconstitute the supreme, absolute, and pristine source of all human knowledge and legal rules. They represent the direct, unalterable expressions of cosmic law, serving as the ultimate constitutional foundation of the ancient legal order.
Because the core text of the Vedas was written in abstract, highly compact spiritual language, subsequent generations required professional legal scholars to unpack, interpret, and structure these principles into precise legal rules. The eminent sages who executed this analytical work are known as Smį¹tikÄrs, and their compiled legal treatises are termed Smį¹tis.
Prominent among these Smį¹tikÄrs were Manu (author of the MÄnava-DharmaÅÄstra), YÄjƱavalkya, NÄrada, and Bį¹haspati. These jurists were not creators of new law; they acted as delegated interpreters who organized the unwritten Vedic principles into actionable codes governing contracts, partnerships, boundaries, crimes, and judicial evidence.
Following the Smį¹tis, the eighteen classical PurÄį¹as function as highly important historical and cultural records. They contain detailed accounts of the creation of the world, cosmic geographies, and the generational dynasties of gods, ancient sages, and historical kings, providing the background context and illustrative precedents that guided rulers in understanding the long-term consequences of state decisions.
SadÄcÄra connotes the uniform, continuous, and unblemished conduct observed by righteous, self-controlled, and learned individuals within a community. It represents the integration of Local Custom into the legal system.
When a community uniformly practices a behavioral pattern across generations, and it is approved by virtuous leaders, it acquires the full, binding force of customary law.
To maintain legal certainty when multiple sources appeared to overlap or contradict one another, Bharat jurisprudence established a strict, unalterable rule of preference and hierarchy:
a. In the event of a direct logical conflict between the absolute text of the Årutis (Vedas) and a secondary Smį¹ti exposition, the Vedas invariably prevail, and the contradictory clause inside the Smį¹ti is discarded as an invalid rule.
b. If a conflict emerges between a Smį¹ti text and a PurÄį¹a chronicle, the Smį¹ti text commands superior legal authority and must be scrupulously followed by the court.
c. Similarly, a local custom or SadÄcÄra can only be enforced if it remains consistent with the primary baseline parameters of the Vedas and Smį¹tis, ensuring that regressive or unfair practices are weeded out by the higher rule of law.
The progressive wing of modern Bharat Jurisprudence is defined by the historic rise of Public Interest Litigation (PIL), or Social Action Litigation. Developed during the late 1920s and 1980s under the leadership of Justice V.R. Krishna Iyer and Chief Justice P.N. Bhagwati, PIL transformed the traditional, Anglo-Saxon adversarial model of litigation into a dynamic, inquisitorial, and victim-centric system.
Under classical common law rules of procedure, a court could only be moved via the strict doctrine of locus standiāmeaning that only the specific individual who had suffered a direct physical or financial injury could validly file a petition.
Recognizing that this rigid rule locked out millions of citizens who were impoverished, uneducated, or marginalized, the Supreme Court of India threw out these procedural restrictions. The Court established that whenever a class of persons suffers a violation of its constitutional or fundamental rights, any public-spirited citizen, human rights organization, or lawyer can validly file a petition before the High Courts (Article 226) or the Supreme Court (Article 32) to secure justice on their behalf.
The judiciary went so far as to accept simple letters, postcards, or newspaper reports as valid writ petitions, converting the highest tribunal into a responsive shield against social suffering.
a. In Bandhua Mukti Morcha v. Union of India, [AIR 1984 SC 802], The Supreme Court treated a letter addressed by the NGO Bandhua Mukti Morcha as a writ petition under Article 32, thereby significantly expanding the scope of Public Interest Litigation and epistolary jurisdiction. Acting upon allegations that bonded labourers were being subjected to inhuman conditions in stone quarries, the Court ordered a detailed investigation and directed the authorities to identify, release and rehabilitate bonded labourers in accordance with the Bonded Labour System (Abolition) Act, 1976. The Court held that the right to live with human dignity under Article 21 includes protection against exploitation, humane conditions of work and the enforcement of labour welfare legislation. It further emphasised that the State bears a constitutional obligation to eliminate bonded labour and effectively implement labour welfare laws to safeguard the dignity and fundamental rights of workers.
b. In Hussainara Khatoon (I) v. Home Secretary, State of Bihar, [AIR 1979 SC 1360], the Supreme Court entertained a Public Interest Litigation prompted by newspaper reports exposing the deplorable condition of undertrial prisoners in Bihar who had remained incarcerated for periods exceeding the maximum punishment prescribed for the offences with which they were charged. Recognising such prolonged detention as a grave violation of personal liberty, the Court directed the release of eligible undertrial prisoners and held that the right to a speedy trial is an essential and integral component of the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution. The judgment marked a watershed in Indian constitutional law by expanding the reach of Public Interest Litigation and affirming that access to prompt and fair criminal justice is a constitutional obligation of the State.
V. Strategic Legal Adaptations under the BNS, 2023
The practical, contemporary integration of BhÄratÄ« Jurisprudence is confirmed by how modern India updates its criminal codes to balance individual rights with social justice. A classic example is the historic implementation of the BhÄratÄ«ya NyÄya SanhitÄ, 2023 (BNS), which permanently replaced the legacy Indian Penal Code, 1860, alongside the procedural overhauls of the BhÄratÄ«ya Nagarik Suraksha SanhitÄ, 2023 (BNSS).
The architectural design of the BNS reflects the core tenets of both classical Dharma (righteous social ordering) and modern PIL (victim restoration) across three primary fields:
The BNS moves away from colonial-era prioritiesāwhich placed offenses against the Crown at the top of the penal codeāto restructure the laws around citizen safety. It prioritizes offenses against the human body, women, and children within primary chapters (Chapter V), reflecting the traditional concept of RÄja-Dharma, which mandates that the supreme duty of the state's penal machinery is to defend vulnerable demographics from predatory actions.
In a historic departure from purely isolating or retributive punishments inherited from colonial models, Section 4(f) of the BNS, 2023, formally introduces Community Service as an explicit form of criminal punishment for petty, non-violent infractions (such as minor public nuisances or low-value thefts by first-time offenders).
By requiring the offender to execute mandatory uncompensated public work to benefit local civic schools, hospitals, or environmental grids, the law directly mirrors the ancient philosophical tenets of Dharmaāwhich views punishment not as state vengeance, but as a path for moral cleansing, active penance, and constructive community restoration.
The procedural codes under the BNSS, 2023, make the core principles of natural justice mandatory across investigations. It introduces strict, time-bound windows for forensic medical examinations in sexual assault cases and mandates the supply of certified judgment copies entirely free of cost to the convict immediately upon pronouncement (Section 402 BNSS).
This matches the benchmark ruling of the Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar (2015) 3 SCC 251., which established that the rule against bias (nemo judex in causa sua) and the absolute right to a fair hearing (audi alteram partem) are unalterable facets of natural law that serve as the bedrock of the contemporary Indian judicial system.
Bharat Jurisprudence stands as a robust, evolving legal science that unifies ancient ethical principles with advanced constitutional protections. While the classical framework of Dharma anchored the legal order in individual duty, kingly accountability, and mutual respect for cosmic life, the modern mechanism of Public Interest Litigation ensures that access to justice remains an open reality for the most marginalized citizens.
By balancing the structural precision of the BNS, 2023 with the mandatory application of the rules of natural justice as verified in the Maneka Gandhi and BCCI guidelines, the contemporary Indian legal ecosystem transforms positive law into a live instrument of social engineering, safeguarding human dignity, ensuring equity, and maintaining the rule of law across the nation.
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QUESTION BANK
Q.1. Define the concept of Public Interest Litigation.
Q.2. Explain new dimension by way of PIL in enforcement of fundamental
rights.
SHORT NOTES 1) PIL.
3. Progressive Welfare of Children
4. The Right to Livelihood and Shelter
5. The Environmental Right to Clean Air and Water
6. The Right to Health and Immediate Medical Assistance
V. Verified Catalogue of Rights Formulated via PIL
Critical Jurisprudential Separation: The Right to Die:
VI. Modern Interface: Procedural Safety under the BNSS, 2023
1. Mandatory Electronic Transparency
2. Fast-Tracked Free Legal Aid Machinery:
3. Strict Custodial Protection Parameters:
VII. Conclusion
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Under the constitutional architecture of India, the enforcement of Fundamental Rights is guaranteed through direct access to the higher judiciary. A citizen can move the Supreme Court of India under Article 32āwhich itself functions as a Fundamental Right under the title of the Right to Constitutional Remediesāor petition the respective State High Courts under Article 226.
Historically, this curative window was restricted by rigid, traditional rules of civil procedure. The courts operated on a strict, localized assumption that judicial machinery could only be set in motion if the individual whose specific, personal right was violated approached the court themselves.
This classical procedural boundary is universally designated as the rule of Locus Standi (translated literally from Latin as "a place to stand before the court").
[Image illustrating the procedural shift in Indian Jurisprudence: Rigid Locus Standi vs. Expansive Public Interest Litigation]
Under the strict rule of locus standi, the capacity to initiate legal action before a High Court or the Supreme Court is restricted exclusively to the person of inheritanceāthe aggrieved party who has suffered a direct, visible, and personalized infringement of their legal or constitutional rights.
A third-party stranger, however public-spirited or altruistic, was completely barred from filing a petition on behalf of another. While this traditional rule effectively prevented busybodies or professional meddlers from clogging the judicial backlog with speculative claims, it operated on a flawed assumption that all citizens possessed equal capacity to approach the state's tribunals.
In a developing democracy like India, a significant portion of the population faces deep-seated structural vulnerabilities. Due to extreme poverty, systemic illiteracy, social marginalization, and economic exploitation, many vulnerable groups are completely unable to access the higher judiciary to seek relief against violations of their constitutional rights. Recognizing that a blind adherence to traditional locus standi effectively denied access to justice for millions of citizens, the Supreme Court of India introduced a historic procedural relaxation during the late 1970s and 1980s.
Through pioneering judicial activism led by trailblazing jurists like Justice V.R. Krishna Iyer and Chief Justice P.N. Bhagwati, the higher courts relaxed the rigid rules of locus standi. The judiciary opened its doors to accept Public Interest Litigation (PIL), or Social Action Litigation, ruling that:
Whenever a legal or constitutional injury is inflicted upon a person or a determinate class of persons who, by reason of poverty, helplessness, or socially or economically disadvantaged position, are unable to approach the court for relief, any public-spirited citizen or representative organization can validly maintain a writ petition before the High Courts or the Supreme Court seeking the enforcement of those fundamental rights.
This dynamic approach transformed the higher judiciary from a passive arbitrator of private disputes into an active shield for social justice, directly fulfilling the egalitarian promises woven into the Preamble of the Constitution. Jurisprudentially, PIL is defined as a representative legal action initiated before a superior court of record to enforce an underlying public or general interest, shielding the community or a marginalized segment from structural harm or state neglect.
The expansion of PIL allowed the Supreme Court to read new, progressive dimensions into Article 21 (The Right to Life and Personal Liberty). The Court established that the right to "Life" cannot be reduced to a mechanical, biological animal existence; it must encompass the absolute right to live with basic human dignity, personal security, and systemic equity.
The Supreme Court extended the reach of Public Interest Litigation to safeguard the fundamental rights of prisoners in Sunil Batra (II) v. Delhi Administration, [AIR 1980 SC 1579]. Treating a letter complaining of custodial torture as a writ petition, the Court held that constitutional remedies are available not only to challenge unlawful detention but also to protect prisoners lawfully confined from torture, cruel, inhuman or degrading treatment at the hands of prison authorities. Emphasising that "prison walls do not keep out fundamental rights," the Court ruled that incarceration curtails only those liberties that are necessarily incidental to lawful imprisonment, while the guarantees of Articles 14 and 21 continue to protect every prisoner. The judgment firmly established that prison administration remains subject to constitutional scrutiny and that courts may intervene to preserve the dignity and humane treatment of inmates.
3. Progressive Welfare of Children
The Supreme Court has consistently employed Public Interest Litigation to enforce the State's constitutional obligations towards child welfare. In Lakshmi Kant Pandey v. Union of India, [AIR 1984 SC 469], The Court framed comprehensive guidelines regulating inter-country adoptions to ensure that the welfare of the child remained paramount and to prevent trafficking, commercial exploitation and other abuses.
Similarly, in Sheela Barse v. Union of India, [AIR 1986 SC 1773], The Supreme Court addressed the plight of children confined in prisons and directed that juveniles should not be lodged in ordinary jails but should instead be placed in appropriate juvenile institutions. The Court also emphasised the need for expeditious inquiry and trial of juvenile cases and for humane treatment consistent with the constitutional guarantee under Article 21.
The prohibition of child labour in hazardous industries, including the match and fireworks industry, was subsequently reinforced in M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756, where the Supreme Court issued detailed directions for the prohibition, rescue, rehabilitation and education of child labourers.
4. The Right to Livelihood and Shelter
In Olga Tellis v. Bombay Municipal Corporation, [AIR 1986 SC 180], a Public Interest Litigation was instituted on behalf of thousands of pavement and slum dwellers facing eviction from public land in Mumbai. The Supreme Court held that the right to livelihood is an integral facet of the fundamental right to life guaranteed under Article 21 of the Constitution, observing that deprivation of livelihood would, in many cases, amount to deprivation of life itself. While recognising the statutory authority of municipal bodies to remove encroachments, the Court ruled that such power must be exercised in accordance with a just, fair and reasonable procedure, including compliance with the principles of natural justice.
The constitutional recognition of socio-economic rights was further developed in Chameli Singh v. State of Uttar Pradesh, [AIR 1996 SC 1051], where the Supreme Court held that the right to shelter is an essential component of the right to life under Article 21. The Court observed that shelter signifies far more than mere protection from the elements; it encompasses adequate living conditions that enable an individual to develop physically, mentally, intellectually and spiritually, thereby preserving human dignity.
5. The Environmental Right to Clean Air and Water
The Supreme Court has employed Public Interest Litigation as a powerful instrument to safeguard public health and protect the environment. In a series of environmental decisions culminating in Murli S. Deora v. Union of India, [AIR 2002 SC 40], The Court reaffirmed that the right to life under Article 21 includes the right to breathe pollution-free air and to live in a healthy environment. Recognising the serious health hazards posed by passive smoking, the Court directed that smoking be prohibited in public places throughout the country, including hospitals, educational institutions, public offices, court premises, public transport and other public spaces. The judgment underscored the State's constitutional obligation to protect non-smokers from involuntary exposure to tobacco smoke and significantly influenced the subsequent enactment and implementation of tobacco-control legislation in India.
6. The Right to Health and Immediate Medical Assistance
In the benchmark case of Parmanand Katara v. Union of India [AIR 1989 SC 2039], a public-spirited citizen filed a PIL challenging the administrative practices of hospitals that refused to treat critical accident victims until complex police formalities and medico-legal reports were completed.
The Supreme Court issued a clear mandate, ruling that it is the absolute professional and constitutional obligation of every doctor, whether private or governmental, to extend immediate medical aid to an injured individual to preserve human life. The Court established that preserving life stands paramount, and medical treatment must never be delayed for administrative or police formalities.
The constitutional protection of personal liberty was significantly strengthened after the controversial decision in Additional District Magistrate, Jabalpur v. Shivkant Shukla, [AIR 1976 SC 1207]. In that case, the majority of the Supreme Court held that during a Proclamation of Emergency, a Presidential Order issued under Article 359(1) could suspend the right to move the courts for the enforcement of Article 21, thereby preventing detainees from seeking judicial relief through habeas corpus. This restrictive interpretation was subsequently reversed by the Constitution (Forty-fourth Amendment) Act, 1978, which amended Article 359 to provide that the right to move any court for the enforcement of the rights guaranteed under Articles 20 and 21 cannot be suspended even during an Emergency. The constitutional position was later reaffirmed by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), which expressly overruled the majority decision in ADM Jabalpur and recognised it as inconsistent with the constitutional commitment to liberty and the rule of law.
V. Verified Catalogue of Rights Formulated via PIL
Through continuous public interest interventions, the higher judiciary has synthesized a comprehensive catalogue of enforceable constitutional sub-rights under the umbrella of Article 21:
No. | Codified Constitutional Sub-Right | Primary Precedent / Statutory Source |
1 | Right to Live with Human Dignity | Francis Coralie Mullin v. Union Territory of Delhi |
2 | Right to Free Legal Aid for the Accused | State of Maharashtra v. Manubhai Pragaji Vashi |
3 | Right to a Speedy Trial | Hussainara Khatoon v. State of Bihar |
4 | Right Against Custodial Harassment & Torture | D.K. Basu v. State of West Bengal |
5 | Right Against Solitary Confinement | Sunil Batra v. Delhi Administration |
6 | Right Against Arbitrary Handcuffing | Prem Shankar Shukla v. Delhi Administration |
7 | Right to Privacy | PUCL v. Union of India (Telephone Tapping Case) |
8 | Right to Travel Abroad | Maneka Gandhi v. Union of India |
9 | Right Against Delayed Execution of Death Sentence | Vatheeswaran v. State of Tamil Nadu |
10 | Right to Earn Minimum Wages | PUDR v. Union of India (Asiad Games Case) |
11 | Right Not to be Arbitrarily Driven Out of a State | Khudiram Das v. State of West Bengal |
Critical Jurisprudential Separation: The Right to Die: While expanding the scope of Article 21 to promote human dignity, the courts have consistently distinguished the right to live with dignity from a general right to die. In State of Maharashtra v. Maruti Sripati Dubal, 1987 Cri LJ 743 (Bom), the Bombay High Court held that the right to life included a corresponding right to die and declared Section 309 of the Indian Penal Code, 1860 unconstitutional. However, this view was decisively overruled by the Constitution Bench of the Supreme Court in Gian Kaur v. State of Punjab, [AIR 1996 SC 946], The Supreme Court held that Article 21 guarantees the right to live with dignity but does not encompass a general right to die or to terminate one's own life. At the same time, the Court recognised that the concept of a dignified life naturally extends to a dignified process of dying in appropriate circumstances.
This principle was subsequently elaborated by the Constitution Bench in Common Cause (A Regd. Society) v. Union of India, (2018) 5 SCC 1, which ecognized the constitutional right to die with dignity in cases of terminal illness by permitting passive euthanasia and advance medical directives under carefully prescribed safeguards.
VI. Modern Interface: Procedural Safety under the BNSS, 2023
The functional victories secured by decades of public interest litigations have been absorbed and institutionalized into Indiaās modernized criminal procedural architecture under the BhÄratÄ«ya Nagarik Suraksha SanhitÄ, 2023 (BNSS), which permanently replaced the colonial-era Code of Criminal Procedure.
The BNSS explicitly codifies several human rights protections that originally grew out of judge-made PIL guidelines:
1. Mandatory Electronic Transparency: Under the modern rules of the BNSS, police officers are required to utilize digital video recordings during search and seizure operations, ensuring transparent collection of evidence and preventing custodial planting.
2. Fast-Tracked Free Legal Aid Machinery: Section 144 of the BNSS framework streamlines the immediate provision of state-funded Free Legal Aid to any indigent accused or vulnerable victim from the moment of arrest, executing the directives formulated in the Manubhai Vashi guidelines.
3. Strict Custodial Protection Parameters: The BNSS integrates the strict arrest protocols established in the landmark case of D.K. Basu v. State of West Bengal, making it mandatory for the arresting officer to officially inform a designated family member or friend immediately upon a citizenās detention, while making public prosecutors active guardians of fair trials.
The historical transition of Indian jurisprudence from the rigid boundaries of locus standi to the open, representative architecture of Public Interest Litigation represents a major triumph for legal science. By allowing public-spirited citizens to bring real-world social suffering directly before the bench, the higher judiciary successfully uses the Constitution of India as an active tool for social engineering.
By balancing the structural precision of the BNS, 2023 with the progressive, flexible remedies guaranteed under Articles 32 and 226, the contemporary legal ecosystem ensures that positive law remains certain and uniform while remaining responsive to human needs. This protects individual liberties, ensures absolute equity, and maintains the rule of law across the nation.
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