Dharma as the Foundation of Justice in India

Facts. The petitioners sought a declaration that the right to sexuality, sexual autonomy and choice of a sexual partner is part of Article 21, and that section 377 of the Indian Penal Code, so far as it criminalised consensual sexual acts between adults, was unconstitutional. An earlier two judge Bench in Suresh Kumar Koushal had restored section 377 after the Delhi High Court had read it down.

Held. Section 377 was unconstitutional to the extent that it criminalised consensual sexual conduct between adults in private, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled. Constitutional morality, and not popular or majoritarian morality, governs the interpretation of fundamental rights.

Why it matters here. The structure of the reasoning is the same as the classical one: there is a standard by which law is judged, it is not the majority's preference, and it is found in an authoritative source. The source has changed from Smriti to the Constitution; the form of the claim has not.

Justice is prior to law. Law serves justice, so a law that defeats it fails on its own terms.

Justice is concrete. Dharma is what this person, in this station, in these circumstances, ought to do. It is not a rule to be applied uniformly regardless of situation, which is both its strength, since it accommodates circumstance, and its weakness, since it resists generalisation.

The criticisms, which MU's "how far" invites

It is not egalitarian. Duties differentiated by birth cannot supply the foundation of a justice that Article 14 requires. The Constitution's rejection is explicit in Articles 15, 16 and 17. An answer must say this plainly.

It is not a determinate standard. Four sources, a hierarchy, commentarial divergence and the residual conscience of the learned produce a standard that different authorities read differently, which is the standing objection to natural law generally.

It was administered by an interested class. The knowledge of the sources was confined, which meant that what dharma required was declared by those the arrangement favoured.

It has no institutional machinery in a modern state. A standard requires an institution to apply it, and the classical institutions are gone.

Its modern invocations are contested. Appeals to dharma in public life are sometimes appeals to a religious tradition rather than to a standard of justice, which is why the distinction in [Dharma Is Not Religion] carries constitutional weight.

What survives as a foundation of justice

The proposition that the ruler is under the law. This is the rule of law, and the tradition states it independently of the Western sources, which is worth saying in an answer because it shows the idea is not an import.

The proposition that law is judged by a standard outside itself. This is what the basic structure doctrine does in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461: a standard, not found in the text of Article 368, by which even an amendment is judged.

The proposition that justice attends to circumstance. Apad dharma is the classical form; the discretion to mould relief and the individualisation of sentence are the modern forms.

The vocabulary of duty, in Article 51A.

A worked example

A statute permits the State to acquire the land of a community and to pay compensation at a rate fixed years earlier.

On a positivist view. The statute is valid if within legislative competence and consistent with Part III as construed, and that ends the matter.

On the dharma view. There is a standard beyond the statute. The ruler's duty is to protect his subjects, and taking their means of livelihood without a fair equivalent is a departure from it whatever the statute says.

What Indian law actually does. It reaches a similar conclusion by a different route: through Article 14 and arbitrariness after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, and through Article 21 and livelihood after Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

The comparison. Both hold that a formally valid law can be judged and found wanting. They differ in where the standard comes from, and that difference is the whole of Module IV.

Quick revision

1. Three claims: a standard independent of the ruler's will; discoverable through a doctrine of sources; and the measure by which law itself is judged.
2. The third claim places the tradition alongside natural law and connects Module III to Module IV.
3. Consequences: justice is objective, not majoritarian, prior to law, and concrete.
4. Navtej's constitutional morality has the same structure with a different source.
5. Criticisms: not egalitarian; not determinate; administered by an interested class; without modern institutional machinery; and its invocations are contested.
6. What survives: the ruler under the law; law judged by a standard outside itself, as the basic structure doctrine does; attention to circumstance; and the vocabulary of duty in Article 51A.

Test yourself

1. Distinguish dharma as the foundation of ordering from dharma as the foundation of justice. Ordering answers how the society is held together, and the answer is a scheme of duties. Justice answers by what standard the arrangement is judged right, and the answer is dharma itself. The second claim is stronger, because it makes dharma the measure of law rather than merely its content, which places the tradition alongside natural law.

2. State the three claims involved in calling dharma the foundation of justice. That there is a standard of rightness independent of the ruler's will, so a command contrary to it does not bind merely because it is commanded; that the standard is discoverable through a doctrine of sources, namely Sruti, Smriti, Sadachara and Atmatushti; and that the standard is the measure of law itself, so law is judged by dharma and not dharma by law.

3. Show that a modern Indian decision has the same structure of reasoning. Navtej Singh Johar, (2018) 10 SCC 1, held section 377 unconstitutional so far as it criminalised consensual adult conduct and held that constitutional morality, not popular or majoritarian morality, governs the interpretation of fundamental rights. The structure is identical to the classical one: a standard by which enacted law is judged, not settled by counting preferences, and located in an authoritative source. Only the source has changed, from Smriti to the Constitution.

4. Give the two criticisms an answer must make. That the scheme is not egalitarian, since duties differentiated by birth cannot found a justice consistent with Articles 14, 15, 16 and 17, which the Constitution expressly repudiates; and that the standard is not determinate, since four sources, a hierarchy, divergent commentaries and a residual appeal to the conscience of the learned allow different authorities to reach different answers, which is the standing objection to natural law generally.