Raja Dharma: The Duty of the Ruler
Chapter Seventy
Syllabus topic 4, "The Concept of Justice"
Pages 283 to 286 of 356
In one line
The classical Indian position is that the king is not the source of the law but its servant, which is the rule of law stated two thousand years before Dicey.
In the wording a student can write in an exam: raja dharma is the dharma of the ruler. Its content is that the king exists for the protection of his subjects; that he is bound by dharma and does not make it; that his function in adjudication is to apply dharma and not his own will; that he owes duties of protection, welfare and impartiality; and that a king who departs from dharma forfeits the obedience he would otherwise be owed. The classical maxim is that the law is the king of kings.
The five elements
1. The king exists for protection. The classical justification of kingship is functional: in the absence of a ruler the strong devour the weak, which the texts call matsya nyaya, the law of fishes. The king is instituted to prevent it. His authority is therefore conditional on performing that function, which is a contractual rather than a divine account of sovereignty and is worth comparing with [The Liberal Contractual Tradition].
2. The king is under dharma. He does not create it. The most quoted formulation is that dharma is the king of kings, mightier than the king, so that even a ruler is subject to it. This is the proposition that makes the tradition relevant to modern constitutional law.
3. In adjudication he applies dharma, not his will. He is to decide according to the sources, assisted by those learned in them, and not according to preference, anger or favour. The texts require him to sit with assessors, to hear both sides, and to give reasons, which is procedural justice stated in classical terms.
4. He owes affirmative duties. Protection of person and property; relief in famine and calamity; protection of the weak, of widows, of children, of the aged and of those without support; maintenance of the conditions of livelihood; and the taking of taxation proportionate to what is produced, the classical image being the bee taking honey without destroying the flower.
5. Departure has consequences. A king who fails in raja dharma is not owed obedience in the same way, and the tradition contains statements permitting resistance to a ruler who abandons dharma. The remedy is not judicial in the modern sense, which is the tradition's weakness, but the principle that authority is conditional is stated clearly.
The comparison with the rule of law
| Raja dharma | Dicey's rule of law | |
|---|---|---|
| Ruler's position | under dharma, which he does not make | under the ordinary law, administered by ordinary courts |
| Source of the standard | Sruti, Smriti, Sadachara, Atmatushti | the common law and the constitution |
| Content | protection, welfare, impartial adjudication, proportionate taxation | absence of arbitrary power, equality before the law, rights secured by ordinary law |
| Enforcement | none institutional; obedience conditional | courts, with judicial review |
| Modern Indian expression | Article 51A and the Preamble's justice | Articles 13, 14, 32, 226 |
Raja Dharma: The Duty of the Ruler
What the comparison shows. The Indian tradition supplies the principle and not the machinery. The machinery came from the constitutional order, and L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, is the modern statement that the machinery cannot be removed.
Facts. A batch of matters questioned whether Articles 323A(2)(d) and 323B(3)(d), which allowed exclusion of the jurisdiction of all courts except the Supreme Court under Article 136 in tribunal matters, could stand against judicial review under Articles 226 and 227 and Article 32; whether tribunals could test the constitutional validity of statutes; and whether they were effective substitutes for the High Courts.
Held. The power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded. The exclusion clauses were struck down to that extent. Tribunals may test the vires of subordinate legislation and statutes, but their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall.
Why it matters here. Raja dharma says the ruler is under the law. Chandra Kumar supplies what the classical position lacked: an institution that can say so and cannot be abolished.
Where the modern Indian order states raja dharma
The Preamble. Justice, social, economic and political, as the purpose of the State.
Part IV. Articles 38, 39, 41, 42, 43, 46 and 47 are duties of the State expressed as directives, and they read remarkably like the affirmative duties of raja dharma.
Article 14. The proposition that the State may not act arbitrarily, after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, is the modern form of the requirement that the king decide by dharma and not by will.
The oath. The Third Schedule requires the President to devote himself to the service and well-being of the people, and a judge to act without fear or favour, affection or ill-will.
The failure case
Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, is what happens when the principle is stated and the machinery yields.
Facts. During the Emergency proclaimed on 25 June 1975, a Presidential Order under Article 359 suspended the right of detenus to move any court to enforce Articles 14, 21 and 22. Detenus applied to High Courts for habeas corpus and several entertained the petitions. The State appealed, contending that the Order barred the courts from entertaining them at all.
Raja Dharma: The Duty of the Ruler
Held. By four to one, in view of the Presidential Order no person had any locus standi to move a writ petition under Article 226 before a High Court for habeas corpus to challenge the legality of a detention order on any ground, including mala fides. Section 16A(9) of the Maintenance of Internal Security Act was constitutionally valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.
Why it matters here. The classical position is that the ruler is under dharma even when he is most powerful. The majority held that during an emergency the executive's word could not be questioned. Khanna J.'s dissent is the raja dharma position in modern dress, and it is now regarded as correct.
The criticisms
No institutional enforcement. The tradition tells the king what he owes and provides nobody to make him pay. Resistance is a remedy of last resort and not a legal one.
It presupposes a ruler willing to be bound. So does every rule of law, but a written constitution with an independent court makes the presupposition less fragile.
It was stated by those the king appointed. The learned who declared what dharma required depended on the king's patronage.
It coexisted with inequality. Protection of the weak sat alongside duties differentiated by birth, and an answer must say so.
A worked example
A ruler levies a tax that takes half the produce of a village in a year of poor rainfall.
On raja dharma. Taxation must be proportionate and must not destroy the source, on the image of the bee and the flower; the ruler owes relief in calamity; and a levy that leaves the cultivator unable to subsist is a departure from his dharma.
On the modern order. The tax must be within legislative competence, must not be confiscatory, must satisfy Article 14 after Royappa, and may engage Article 21 if it destroys livelihood, on Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
The difference. Not in the conclusion but in the remedy. The classical order gives the villager a standard and no forum; the constitutional order gives him Article 226.
Quick revision
- Raja dharma: the ruler exists for protection; is bound by dharma and does not make it; applies dharma in adjudication rather than his will; owes affirmative duties of welfare and proportionate taxation; and forfeits obedience by departing from it.
- Matsya nyaya, the law of fishes, is the functional justification of kingship, and it is a contractual rather than a divine account of authority.
- The classical maxim is that dharma is the king of kings.
- Compared with Dicey: the tradition supplies the principle and not the machinery.
- Chandra Kumar supplies the machinery and holds that it cannot be excluded.
- Modern statements: the Preamble, Part IV, Article 14 after Royappa, and the oaths in the Third Schedule.
- ADM Jabalpur is the failure, and Khanna J.'s dissent is raja dharma in modern dress.
- Criticisms: no institutional enforcement, dependence on a willing ruler, declaration by an interested class, and coexistence with inequality.
Raja Dharma: The Duty of the Ruler
Test yourself
1. State the five elements of raja dharma. That the king exists for the protection of his subjects, kingship being instituted to prevent matsya nyaya, the law of fishes; that he is bound by dharma and does not make it; that in adjudication he applies dharma and not his own will, sitting with assessors and hearing both sides; that he owes affirmative duties of protection, relief, care of the weak and proportionate taxation; and that a ruler who abandons dharma is not owed obedience in the same way.
2. What does the comparison with Dicey's rule of law show? That the Indian tradition supplies the principle and not the machinery. Both hold the ruler subject to a law he does not make, but Dicey's version is enforced through ordinary courts, while the classical version has no institution able to compel the king. The machinery came in India from the constitutional order, and L. Chandra Kumar holds that it is part of the basic structure and cannot be excluded.
3. Why is Khanna J.'s dissent in ADM Jabalpur described as raja dharma in modern dress? Because it asserts precisely the classical proposition: that the State has no power to deprive a person of life or personal liberty without the authority of law even during an emergency, so that the ruler remains subject to the law at the moment when his power is greatest. The majority held that the executive's word could not be questioned, which is the position raja dharma denies.
4. Give two criticisms of raja dharma as a theory of limited government. That it provides no institutional enforcement, since the texts state what the king owes and supply nobody who can compel him, resistance being a last resort rather than a legal remedy; and that it was declared by learned men dependent on the king's patronage, so the body that said what dharma required was not independent of the ruler it was restraining.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.