The Purpose of Dharma
Chapter Seventy-Two
Syllabus topic 4, "The Concept of Justice"
Pages 291 to 294 of 356
In one line
Dharma exists for the welfare of beings, and the three things MU names, justice, the individual and social harmony, are the forms that welfare takes.
In the wording a student can write in an exam: the classical account of the purpose of dharma is that it exists for the welfare of beings. The tradition states this directly: that dharma is so called because it upholds, and that what is not conducive to the welfare of beings is not dharma however it may be described. MU's proposition breaks that purpose into three: ensuring justice, protecting the individual, and maintaining social harmony. All three are supportable from the tradition, and a fourth, the restraint of power, belongs with them.
Purpose one: to ensure justice
The claim. Dharma is not merely an order but a right order, and the rightness is what makes it binding. A rule that produced systematic injustice would not be dharma, whatever text contained it.
Support in the tradition. The primacy of sadharana dharma, the general duty binding on all, which includes non-injury and truthfulness. A scheme whose first requirements are those is aimed at right dealing.
Its modern counterpart. The proposition that law is judged by a standard outside itself, worked in [Dharma as the Foundation of Justice in India].
Purpose two: to protect the individual
The difficulty. The tradition is organised around duty rather than right, so "protect the rights of individual" is MU's phrase and not the tradition's.
Why the claim is nonetheless sound. A duty owed to a person protects that person as effectively as a right vested in him, and sometimes better, because it operates without requiring him to assert anything. The obligation not to injure, the ruler's duty to protect the weak, and the duties towards widows, children, the aged and those without support all secure individuals who could not have enforced a right.
Where the claim is weakest. The protection was differentiated, and differentiated protection is not what a modern reader means by protecting the individual. Articles 14 and 15 are the repudiation.
The modern form. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746, is where Indian law states the same protection as a right.
Facts. A British national detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act complained that the conditions of her detention, which restricted interviews with her lawyer and her young daughter to one a month under prison rules, violated Articles 14 and 21.
Held. The right to life in Article 21 includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. The content varies with the economic development of the country but must include the basic necessities of life. The restrictions on interviews were struck down.
The Purpose of Dharma
Why it matters here. Dignity is the point at which the duty conception and the rights conception meet. The tradition protects the individual by imposing duties towards him; the Constitution protects him by vesting a right in him; and the content, that a person is not to be reduced below what a human life requires, is the same.
Purpose three: to maintain social harmony
The claim. Dharma holds the society together. The functional justification of kingship, that without it the strong devour the weak, is a claim about harmony.
Support in the tradition. The whole scheme of differentiated but interlocking duties, in which the performance of each sustains the position of the others.
The objection, which must be made. Harmony can mean two very different things. It can mean a society in which conflict is resolved justly, which is a good. It can mean a society in which everybody stays in an allotted place and does not complain, which is not. The classical scheme contains both, and a modern answer must separate them, because the Constitution's answer to the second is Articles 15, 16 and 17.
The modern form. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, calls the balance between Parts III and IV a basic feature, which is harmony in the first sense: the individual and the collective each protected against the total subordination of the other.
The fourth purpose, which MU's list omits
The restraint of power. Raja dharma binds the ruler, and the maxim that dharma is the king of kings states a purpose the three-part list does not capture: dharma exists to limit whoever has power, not only to order those who do not.
This is worth adding in an answer, because it converts the proposition from a description of a social order into a theory of government, and because it is the element that connects Module III to Module II.
The proposition assessed
What is right about it. All three purposes are supportable, and the tradition's own statement, that dharma exists for the welfare of beings, covers them.
What is incomplete. It omits the restraint of power; it uses the vocabulary of rights for a scheme built on duties; and it does not say what happens when the three conflict.
The conflict is the real question. Justice for an individual may disturb social harmony, which is exactly what happened in Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018.
The Purpose of Dharma
Facts. The petitioners challenged the exclusion of women between the ages of ten and fifty from the Sabarimala temple, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, as violating Articles 14, 15, 17, 21 and 25.
Held. By four to one the exclusion was unconstitutional; the devotees of Lord Ayyappa are not a separate religious denomination, the exclusion is not an essential religious practice, and it violates the right of women to worship under Article 25(1) and their dignity under Article 21. Indu Malhotra J. dissented, holding that a court should not ordinarily interfere in matters of deep religious sentiment and that the community should determine what is essential.
Why it matters here. Justice for the individual and the harmony of a community pointed opposite ways, and the majority preferred the first while the dissent preferred the second. A proposition listing both as purposes must say which prevails, and MU's quotation does not, which is the observation that turns a repetition of the quotation into an analysis of it.
A worked example
A village council orders a family to leave because a member has married outside the community, saying the marriage disturbs the village's harmony.
Justice. The family has done nothing unlawful, and expelling them is a punishment without an offence.
Protection of the individual. The couple's choice of partner is protected, and after Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, autonomy in such matters is within Article 21.
Social harmony. The council invokes it, and in the second sense: everybody in an allotted place, not complaining.
Which prevails. Justice and the individual, and the tradition itself supports that result through sadharana dharma, since non-injury and right dealing are binding on the council as on everyone. Harmony purchased by injustice is not the harmony dharma is for.
Quick revision
- The classical statement: dharma exists for the welfare of beings, and what does not conduce to welfare is not dharma.
- MU's three purposes: ensuring justice, protecting the individual, maintaining social harmony.
- Protecting the individual is sound though stated in rights language for a duty-based scheme; a duty owed protects without requiring assertion.
- Harmony has two senses, just resolution of conflict and everybody in an allotted place, and only the first is defensible.
- The fourth purpose MU omits is the restraint of power, which is raja dharma and the maxim that dharma is the king of kings.
- Minerva Mills expresses harmony in the first sense: neither Part III nor Part IV wholly subordinated.
- Sabarimala shows the three purposes conflicting, and MU's proposition does not say which prevails.
The Purpose of Dharma
Test yourself
1. State the classical account of the purpose of dharma and relate it to MU's three. That dharma exists for the welfare of beings, and that what does not conduce to the welfare of beings is not dharma however described. MU's three, ensuring justice, protecting the individual and maintaining social harmony, are forms that welfare takes, and each is supportable from the tradition.
2. Why is "protect the rights of individual" an awkward phrase for this tradition, and why is the claim still sound? Awkward because the tradition is organised around duties rather than rights, so it does not vest claims in individuals. Sound because a duty owed to a person protects him as effectively as a right vested in him, and sometimes better, since it operates without requiring him to assert anything, which is why obligations towards widows, children, the aged and the unsupported protect people who could never have sued.
3. Distinguish the two senses of social harmony and say which the Constitution accepts. Harmony as the just resolution of conflict, and harmony as a society in which everybody remains in an allotted place and does not complain. The Constitution accepts the first and repudiates the second, in Articles 15, 16 and 17, and Minerva Mills expresses the first by holding that the balance between Parts III and IV, with neither wholly subordinated, is a basic feature.
4. What does MU's proposition omit, and what does it fail to resolve? It omits the restraint of power, which is raja dharma's contribution and the reason dharma is called the king of kings. And it does not say which purpose prevails when they conflict, which is the real question: in Sabarimala justice for the individual and the harmony of a community pointed opposite ways, the majority preferring the first and the dissent the second.
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.