Dharmic Justice (?!) : A response to criticism
This is a response to a critique of my write-up on Dharmic Justice.
First a small clarification: The article does not equate chaturvarna with jati dharma. Varna and Jati are not the same thing. This has been amplified by a large number of commentators, and made clear by the Bhagawad Geeta itself. The British attempt to get a census done in India on the chaturvarna lines was a complete disaster. There has been no census ever after that on chaturvarna lines in India.
Jati is a reality of an inherited social group, Varna is a grouping related to inclination and position in society. Jati’s were created all the time, new ones appeared and old ones disappeared. Varna always remained eternal.
A justice system can take into account a person’s position in society and therefore his duties, responsibilities and immunity, as it should.
The dharma of a person following Brahmin dharma (in terms of his Varna, which is his occupation and inclination) is different from his Brahmin dharma (in terms of Jati). Justice is delivered based on the graded equality scheme qualified by customary practise. In the first Brahmin (in the Varna system) justice is based on position in society, and in the second on his social group. In criminal law there may be a discrimination based on the Varna system, but in civil law, both graded equality and customary practises would come into play.
Codification has been a disaster in India. It has not worked. This is precisely because conception of law in India is linked to the concept of justice which is integrally linked to social norms.
The second clarification: Western natural law and Indic natural law are fundamentally different in where western law does not consider societal norms to be a factor in the formulation of law.
Now as to the broader issue of codification of Svadharma: Codification has been a disaster in India. It has not worked. This is precisely because conception of law in India is linked to the concept of justice which is integrally linked to social norms. There cannot be a codification of Dharma, Svadharma, sadachara, sila or even the Kula or the jati dharmas.
You can write a guidebook as to what are the usual practises are, as the Dharma shastras do, but that would mean that there would be conflicting versions on the same legal point, which is frequently seen between Dharma shastras. The attempt of the British to read “Manu smriti” or “Manava Dharmashastra ” as an exhaustive code was completely off the mark both in terms of conception and reality .
The next question is how do you then apply it in practise today?
My answer is that it requires informality in the justice system.
Dharmic justice is by necessary implication “informal” (in western terms) and social. It still works in the Panchayats all over India, though of course not in a regular, organised manner .Yet till today most of the disputes in India, get resolved in the same Dharmic system as it has been for thousands of years. A state structure which wants to work within it would necessarily have to give it some sort of objective structure.
The Arthashastra in the times of the Mauryas attempted to provide that structure. We may need to evolve something alike in our times.
But we have to remember that in Indic theory, the dispute is to be decided primarily in terms of the Dharma – Artha – Kama triad, which meant in effect balancing mostly the Dharma ( the informal social norms ) and Artha ( the objective standards of the state). The Dharma shastras say that Dharma has to be given primacy, while the Arthashastra of Kautilya says Artha. In today’s “modern India”, the balance we have to get ourselves and has to be worked. It is a continuous work in progress as it should be.
As for the twin points on “affirmative action” and “secularism”: On the first, my point is broadly that the attempt of the Indian state to equate Jati and Varna into an English word ‘caste” and then base affirmative action based on the same by reading class in the equality provisions as equal to caste, that is Jati, has resulted in disaster. I personally think that this was more the Supreme Court’s fault, than the Indian states.
As for Secularism, I differ from the proposition that Europe and America follow “Sarva Dharma Samabhava”. They do not.
The Anglican Church is still integrally linked to the British governing structure. Some of the laws, which are perfectly legal discrimination in British law, would fall afoul of our proposition of “Sarva Dharma Samabhava” .This ranges across marriage laws, inheritance laws as well as representation in Parliament and who can be head of State.
As for the Americans, they according to their constitution follow “a strict wall between the church and the state”.
In other words the state is not to have anything to do with any religious practise. The debate on whether to allow prayers in government funded schools in the US is instructive on that. However it works quite in the opposite extreme in reality, thereby creating a state which the Courts of the US say “…has been founded on Judeo Christian values”. In neither case, Sarva Dharma Samabhava is the ruling credo.
For the last point on the Right to Life:
My take is that the Court adopted leftist rhetoric while attempting to make a specific legal right in western terms into a catch all for all generic rights. The right to life as written under the Indian constitution is very specific, but what the Court has made it into is very generic. This is uniquely Indian.
We do not like boxes, precisely because codification is alien to India. You are never in or out, you have broad directions and paths to travel on and justice is based on which direction you were travelling and whether you were entitled to travel on those lines. The hypocrisy of the Indian courts is that it never acknowledges the old roots .It always adopts modernist “secular” rhetoric, while actually borrowing from old Indic ideas.
It is “for” Bharatiya / Indic, old / traditional / conservative values. The leftists and liberals offer different visions, which are wrong, just like Charvakas were incorrect, just as the followers of the Sakyamuni Buddha went on the lines of interpreting his vision into mindless materialism. It is not against the west, it is in spite of the west. To that end, we should aspire.
To make law more relevant to India today it has to be made more Bharatiya /Indic.
Law in India is still a product of western ideas of constitution making, codification, corporatisation, criminalisation and rule of law mechanism, to name a few amongst a huge number of anachronisms.
We have to start removing the cobwebs in our minds. Not in the sense that these are bad ideas, but in the sense that they do not reflect Indian reality and for anything so social as law and justice, it has to reflect the norms and mores of the society, which they govern. That’s all!
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