The Supreme Court and Dharma

The real secret of dharma is concealed in the hearts of unsullied self-realised saints just as treasure is hidden inside a mysterious cave. Thus, as the sastras confirm, one should travel in the noble path advocated by such saints.

—The Mahabharata, Vana Parva

FORMER SUPREME COURT JUDGE, Kurian Joseph, speaking at an event last week, called for the removal of the Supreme Court’s motto, Yato Dharmastato Jayah (Where there is dharma, there will be victory). The learned (former) judge’s reasoning behind asking for this removal is astounding at multiple levels. The Law Beat online journal reports that according to him, “Dharma as stipulated in the Hindu fold, is not always the truth and thus does not deserve to be the motto.” Even more astoundingly, he claimed that “the truth is the Constitution; Dharma, not always.” But he didn’t end there. He also wondered why the Supreme Court has chosen to “keep the Dharmic notion, which is but a set of duties.” There’s more, and it appears that the crux of Kurian’s objection lies here. He thinks that the “Chief Justice must consider the idea of its removal as the adoption of a Hindu sloka… makes a huge difference in the approach of the Supreme Court in justice delivery.”

Kurian Joseph’s utterances on dharma are ill-informed and betray his ignorance to say the least. The context in which he made these statements also tells a story. He was speaking at a seminar jointly organised by the Campaign for Judicial Accountability & Judicial Reforms (CJAR), LiveLaw, and the far-left media portal, The Wire.

The phrase yato dharmastato jayah is taken from the Mahabharata in which it occurs on thirteen different occasions. The full sloka on each occasion supplies the accurate context for this phrase and must be read as such. But it is doubtless that the phrase is befitting as the motto of the Supreme Court of India.

Taken together and separately, both the Ramayana and the Mahabharata are artistic expositions of the philosophy of dharma. The whole corpus of Dharmasastras upholds the two epics as treatises on dharma. Indeed, there is almost no character in the Mahabharata that does not speak of dharma. The evil incarnate Duryodhana invokes dharma to lure Yudhishthira to his unethi­cal gambling match because he knows that that is the only bait that will convince his cousin. Karna, too, gives a long sermon on dharma to justify his flagrant call for disrobing Draupadi. Yet, it is the Bhagavad Gita of Sri Krishna that our people have always worshipped as the crown jewel of dharma.

Given this, it is intriguing as to why Kurian Joseph targeted only this phrase.

Even as a phrase, yato dharmastato jayah must be read in conjunction with another timeless phrase, dharmo rakshati rakshitah (Dharma protects those who protect it). This enables us to grasp the underlying unity and harmony of the conception and philosophy of dharma.

The term ‘dharma’ has no synonym in any Western or Semitic language because there is no notion of dharma in those cultures.

Dharma covers a gamut of meanings and practical applica­tions. Some of its most common meanings include ordinance, usage, duty, right, privilege, justice, law, morality, virtue, religion, charity, good work, righteous conduct, function, qual­ity, characteristic and attribute. It also signifies a deity—Aditya (Sun), Chandra (Moon), Anila (wind), Anala (fire), and Vrsha (Bull). It is instructive to examine a famous aphorism that occurs in Dharmasastra texts: vrso hi bhagavan dharmah, which basically means that the bull is the visible embodiment of the deity (bhagavan) of dharma. Its four legs, each representing a Yuga, denote the degree of dharma in each Yuga. It is not a mere coincidence that Yama, the god of death, is also called Dharma. Or the fact that his vehicle is the buffalo.

The word dharma is used both as an adjective and a noun. As a noun, it is used both in the masculine and the neuter. As an attribute, dharma indicates the intrinsic quality of a thing. For example, the dharma of fire is to burn.

The late PV Kane, the greatest contemporary authority on the Dharmasastras, gives us an evocative and practical ap­proach to reasonably grasp the meaning and application of dharma by tracing its evolution:

…the word Dharma passed through several transitions of meaning and how ultimately its most prominent significance came to be, “the privileges, duties and obligations of a man, his standard of conduct as a member of the community, as a member of one of the varnas, as a person in a particular stage of life.”

On the philosophical plane, dharma is part of the universal triad of Rta, Satya and Dharma. Rta is the invisible cosmic order that runs and sustains all of creation. Dharma as envisioned by our rishis, is a practical framework and solution by which hu­man beings can uphold Rta. A truly dharmic society will cause the least damage to Rta.

Satya has two parts to it. It is derived from the root sat, mean­ing, ‘being’ or ‘existence’, as seen most famously in Sat-Chit- Ananda. The operative or human part of sat is Satya or ‘truth’ as in “speaking the truth”. This latter part is included in the ten traits that together constitute the definition of dharma. In this sense, Satya is a subset of dharma. And because Rta, Satya and Dharma have universal applicability, they cannot be viewed in isolation.

The limited point here is to merely indicate the all-encom­passing scope of dharma both in theory and practice, spread over space and time—from ancient Afghanistan to the whole of Southeast Asia (in the medieval period), stretching over a minimum of 3,000 years.

WHEN FORMER JUDGE Kurian Joseph casually claims that dharma is not always the truth and that the truth is the Indian Constitution, one is not amused. It is the dharmic in­heritance of Bharatavarsha that gave India its Constitution, and not the other way round. The regrettable tragedy is the fact that the very word dharma is conspicuous by its absence in the same Constitution. In its most profound idealism, the Constitution should have been the voice and guardian of the ancient dharma of Bharatavarsha. Instead, it has become an unwieldy mass representing anything but dharma.

It appears that the learned former judge’s concern with dharma has less to do with its exalted philosophy than with the fact that it occurs in a “Hindu sloka”. He makes this pointed reference repeat­edly in his speech. There’s just no polite way to say this: a call to remove dharma is a recasting of Nehruvian secularism through terminological subterfuge.

An enduring root of India’s pro­longed civilisational tragedy is buried in semantics. Nowhere is this more pronounced than in equating dharma with religion. With due regard, Kurian Joseph’s objection to dharma stems from this fundamental error internalised at the level of the subconscious. A ubiq­uitous theme found in the historical chronicles of Muslims and Europeans is how they unanimously define Hindus as a “people without a religion and a Book.” But the unambiguous Hindu view of this characterisation of Hindus is this: there is such a thing called Hindu Dharma while there is no such thing called an Islamic or Christian Dharma. Dharma is a universal and timeless value that was realised by Hindu sages in Bharatavarsha.

Kurian Joseph’s other claim that Dharma is “only a set of duties” is only partially true. It is the classic fallacy of blind men mistaking one organ of the elephant for the whole of it. And there is no better authority than PV Kane to show the full picture of this error:

…the numberless authors and works on Dharmasastra… were actuated by the most laudable motives of regulating… society in all mat­ters, civil, religious and moral for securing for [its] members happiness in this world and the next. They laid the greatest emphasis on the duties of every man as a member of the society, as a member of the class to which he belonged, and very little emphasis on the privileges… They created great solidarity and cohesion among the several classes of the society in India in spite of their conflicting interests and inclinations and enabled the Hindu society to hold its own against successive aggressions of foreign invaders. They preserved Hindu culture and literature in the midst of alien cultures and in spite of foreign domination. There is no doubt that the authors on Dharma­sastra [had a] desire to evolve order out of chaos and to… harmonise the varying practices of people… But living as, most of the later writers did, in the midst of aggressive and violently unsympathetic cultures and rul­ers and possessing no powerful central government that sympathised with their ideals…the work done by the writers on Dharmasastra should excite our admiration and entitles them to the regard of all those that are interested in the study of the vicissitudes of Hindu society for thousands of years. (Emphasis added)

Kane’s brilliant analysis and Kurian Joseph’s request to the Chief Jus­tice of India to drop the word dharma also rekindles an old question from different perspectives: Who is qualified to speak on behalf of Hindu issues?

It appears that absolutely no qualifi­cation is needed for someone to speak about any topic related to Sanatana Dhar­ma. The area seems to be a free-for-all playground. In direct contrast, only fully trained members of the Muslim and Christian clergy are allowed to expound on their religions and customs in the public space. They zealously guard their domain and tolerate no interference.

A related facet of this phenomenon has a respectable antiquity. Throughout history, no Hindu Acharya or sect has ever tried to interfere with or ‘reform’ Christian­ity or Islam by issuing unsolicited advice. For example, how would the Pope react if a non-Christian called for changing the motto of say, Pope Francis?

The learned retired judge has also courted controversy for some of his activi­ties in the Syro Malabar Church, as detailed in an Indian Express report dated December 11, 2023. On one occasion, Kurian had equated the “traditions of the Catholic Church” with the “Pream­ble of our Constitution which starts with the word, ‘we’. The one person that holds this Church in a single entity is the Pope.” This begets the familiar question: What is the locus standi of the Pope with respect to Indian affairs? Which begets a further question: Are Indian Christians Indians first or Christians first, who take orders only from a foreign religious head? Former Supreme Court Justice Kurian Joseph needs to answer these questions unambigu­ously in the light of his own claim that removing the “Hindu sloka” from the Supreme Court’s motto “makes a huge difference in justice delivery.”

Removing dharma both in letter and spirit is akin to uproot­ing the very foundation of India. Indeed, the simplest meanings of dharma are “to nourish, to uphold, to support, to sustain”.

There is no India without Dharma.

POSTSCRIPT

Mahamahopadhyaya PV Kane concludes the fifth and final volume of his monumental History of Dharmasastra with these memorable lines:

I could not arrange or plan my life. I had to oscillate between education, literature and law, between Government service and an independent profession like that of law. I have, however, lived a very active, full and varied life for over sixty years. Thinking over the vast Sanskrit literature and the labour and time that I had to spend on one branch of it, I am inclined to close this Epilogue with two lines from Browning’s poem, “The last ride together,”

‘Look at the end of the work, contrast
The petty done, the undone vast.’

Spread over 6,000 pages and the work of a single man, the History of Dharmasastra is a lasting and encyclopaedic exposition of the atman of Bharatavarsha—dharma. For more than six de­cades, Kane dedicated himself to it, studying the entire Dharma­sastra corpus spread over twenty-five centuries. The bibliography of just the primary sources of the Dharmasastras runs into 173 pages and the list of Dharmasastra authors consumes 83 pages. This is apart from the thousands of inscriptions, coins, copper­plate grants, official records, commentaries, digests, case laws, journal articles, and secondary sources. The History of Dharmasas­tra is not merely a work of intense and unparalleled scholarship; it is a feat of divinity which chose Kane as its instrument. And yet, at the end of this Himalayan accomplishment, Kane admits that he could manage to grasp only a branch.

How did it become so easy for Kurian Joseph to nonchalantly ask for the removal of dharma?

dharmaHindu slokaJustice Kurian JosephreligionSupreme Court of India