“Law Master’s” Publication
“Bharat Jurisprudence”
Prof. S.D. Bhosale
73
(.. 5 g..)
Bharat Jurisprudence
DHARMA
SHORT NOTES
1. Concept of dharma.
2. Bharat Jurisprudence.
SYNOPSIS
I)
Introduction
II)
The Concept of Dharma
III) Sources of Dharma
Noters
PUBLIC INTEREST LITIGATIONS
I) Introduction –
‘Bharat jurisprudence’ is the study of ancient religious jurisprudential notions
existing at that time in India, i.e. Bharat, and the recent trend of Public Interest Litigation
(PIL). Both these concepts are studied specifically in the Indian context and as developed
in India. Therefore, the study of ‘Bharat Jurisprudence’ is the study of both concepts of
‘dharma’ and PIL. In other words, the study of Indian jurisprudence into two phases, i.e.
study of the concept of Dharma and the study of the present concept of Public Interest
Litigation (PIL), is collectively called ‘Bharat Jurisprudence’.
The development of jurisprudence and legal theory in India owes as much to the
ancient Hindu legal thinkers as it was to the Western Jurists and legal philosophers. Among
the great Indian jurists in ancient times were Narada, Jamini, Yagnawalakya, Manu,
Kautilya etc. In modern times, great Indian Jurist is Dr B. R. Ambedkar, Justice Chagla,
Ex-Chief Justice Dr P. V. Gajendragadkar, Justice P. N. Bhagawati, Justice Krishna Iyar,
Nani Palkhiwala etc. The concept of Dharma, i.e. ancient legal philosophy, is studied here.
II)
The Concept of Dharma –
The term ‘Dharma’ has different meanings according to the context in which it is
used. According to English Writer, the term ‘Dharma’ includes religious, moral, social and
legal duties and can only be defined in their context”. According to Hindu scriptures, the
term Dharma means “religious rights, fixed principles of rules of conduct and the whole
body of religious duty.”
Jiminis View –
The concept of Dharma is a broader one. It includes the concept of law also.
According to Jimini, Dharma is founded on revelation, which is conclusive to the welfare
of society. According to him, Dharma is that which is ordained by the Vedas. The basis of
“Law Master’s” Publication
“Bharat Jurisprudence”
Prof. S.D. Bhosale
74
dharma is conducted and not what you think.
In the ordinary sense, the concept of Dharma is taken to be synonymous with
religion. However, the term Dharma has a wider meaning than religion. In fact, religion
and law are different facets of Dharma. The concept of ‘dharma’ is used in various other
senses also, such as conduct, right, duty etc.
The concept of Dharma generally includes three things viz –
1) religion, 2) duty,
3) the inseparable quality of a thing or an order.
In the first sense, it is abidance to the law of God. In the second sense, it is the duty,
e.g. duty of the king to protect his subject etc. In the third sense, it includes essential
features of a thing or an object, e.g. Dharma of fire is burning, the Dharma of water is to
quench fire etc. Non-violence is the essence of dharma.
III)
Sources of Dharma –
The sources of Dharma are Vedas (i.r. Srutis), Smritis, Puranas, Sadachar etc. Vedas
are regarded as a prime source of all human knowledge. Manu, Brihaspati, Yagnawalkya
and Narada were the sages who expounded Vedic texts. Some sages are described as
profound (i.e. interpreters) of dharma sastras, namely Vishnu, Angirasa, Parasara, Vyas,
Sankha, Gautama, Vasistha, etc. These sages have merely interpreted Vedas. They are not
creators of Vedas. Their work of interpreting Veda is called ‘smritis’; therefore, they are
called Smritikars. After smritis comes the Puranas. There are 18 Puranas. Puranas contain
details about the creation of the world, the dynasties of Gods, sages and kings, etc.
Sadachar, i.e. conduct of virtuous men, is also called an important source of law. Custom
is also an important source in the Hindu religion. For interpretation purposes, there is a
chronology of preferences, and in case of conflict, Vedas or srutis would prevail on smutis,
smutis on purans and so on.
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PUBLIC INTEREST LITIGATIONS
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
SYNOPSIS
1) PIL.
I
Introduction
II
Rule of locus standi
III
IV
Public Interest Litigation
Instances of PIL
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“Bharat Jurisprudence”
Prof. S.D. Bhosale
75
I. Introduction-
We know that to enforce his fundamental rights, one must approach either the
Supreme Court under Art. 32 of the Constitution or to the High Court under Art. 226.
However, only persons whose fundamental right is violated can approach the
concerned courts to get their rights enforced.
II. Rule of locus standi:-
The traditional rule is that the right to move to the Supreme Court or to the High Court
is only available to that person whose fundamental right is infringed. This rule is called the
rule of “locus standi”. In other words, the right to file a petition by the aggrieved person is
called the rule of locus standi.
III. Public Interest Litigation (PIL):-
Some persons or groups of persons, because of their poverty or socially or
economically disadvantaged position, are unable to approach the Supreme Court or the
High Court for relief. Therefore, the traditional rule of locus standi (i.e. only that person
whose right has been violated can approach the court for relief) is relaxed by the court.
The court now permits public interest litigations or ‘social interest litigation’ from
any other public-spirited citizen for the enforcement of constitutional and other legal rights
of such socially, educationally or economically disadvantaged persons or groups of
persons. This is a dynamic approach of recent days, adopted by the Supreme Court and
High Courts; public interest litigation is the most helpful judicial device for the
enforcement of fundamental rights of socially educationally or economically
disadvantaged (backward) persons or groups of persons. Thus, it achieves the object of
social justice enshrined in the preamble of the Indian Constitution. It is an example of
judicial activism also.
“Public interest litigation” may be defined as ‘a legal action initiated in a court of
law for the enforcement of a public interest or general interest in which the public or a class
of the community have pecuniary interest or some interests by which their legal rights or
liabilities are enforced”
IV.
INSTANCES OF PUBLIC INTEREST LITIGATIONS:-
The following are some instances of public interest litigation.
1. Release of bonded labourers:-
Facts:- The Supreme Court treated an ordinary letter as ‘public interest litigation’, and
when after inquiry, it was found that, in some quarries situated in the Faridabad district in
the state of Haryana, there were large numbers of labourers working under ‘inhuman and
1 AIR 1983 SC 803
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intolerable conditions’ and many of them were bonded labourers.
Held: The court issued a writ to release bonded labourers and improve work conditions for
stone queries.
2. Protection against inhuman treatment:-
Supreme Court held that the writ of habeas corpus can be issued not only for releasing a
person from illegal detention but also for protecting prisoners from inhuman and barbaric
treatment from police.
3. Child welfare:-
Courts have issued various writs for the welfare of children. It has ordered that the
child welfare Agencies must ensure the welfare of children; it is their constitutional
The following rights are read under Art. 21 through different PILs.
4. Right to get pollution-free water and air:-
Supreme Court ordered the prohibition of smoking in public places to protect the health of
non-smokers.
Likewise, PILs’ were issued in various other spheres such as protection of ecology
and environment from pollution, giving jobs to disabled, providing education to children
of prostitutes etc.
5. Right to education.
6. Right to livelihood.
Supreme Court held- that the right to life under Art. 21 includes the right to livelihood
because no person can live without a livelihood.
Therefore, the person has the right to get minimum wages for his work, equal
pay for equal work etc.
7. Right of privacy.
In People’s Union for Civil Liberties v. Union of India.
2 AIR 1980 SC 1759
3 Lakshmi Kant Pandya V/s. Union of Indian (1984) 2 SCC 244
4 Seela Barse V/s. Union of India (1986)3 SCC 596
5 (1953) 2 Question Bank 18
6 (2002) SC
7 AIR 1986 SC 180.
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“Bharat Jurisprudence”
Prof. S.D. Bhosale
77
Supreme Court Held that- Telephone tapping is a serious invasion of an individual’s right
to privacy, which is part of the right to life and personal liberty enshrined in Art. 21 of the
constitution.
It also includes the right to live with human dignity and not merely animal existence.
8. Right to get pollution-free water and air.
Protection of the environment and ecology from pollution comes under Art. 21. In
Murli S. Deora v. Union of India, getting pollution-free water and air is a fundamental
right.
Supreme Court ordered- the prohibition of smoking in public places to protect the health
of non-smokers.
9. Right to shelter.
10.
11.
12.
13.
Right to health and medical assistance.
Right to die- not a fundamental right.
Right to free legal aid.
‘Right to life’ cannot be suspended in an emergency by Presidential order.
14. Right to get minimum wages.
15. Right against solitary confinement
16. Right against handcuffing
17. Right to travel abroad
18. Right against custodial harassment
19. Right against delayed execution
20. Right to live with human dignity
21. Right not to be driven out of state
22. Right to a fair trial
Thus, in a number of cases, courts have tried to provide justice to the needy and
thereby tried to achieve social justice through PIL.
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