LAW AND
RELIGION
V. KAMESWARA RAO
Though
seemingly wide apart, Law and Religion take their roots from the same source.
‘Religion’ binds us together; ‘Law’ regulates our mutual relations. Both aim at
regulating human conduct in relation to the self, to the creation and to the
Creator. At the moment I shall confine myself to the ‘Hindu’ system of ‘Law’
and the ‘Hindu’ system of ‘Religion’. According to the Hindu Religion, the
conduct of an individual in relation to the self, to the society, to the State
and to the Supreme should be in accordance with Dharma, popularly called
Hindu Dharma. It does not appear that the word ‘Hindu’ is of native or
ancient origin. It is a term coined by the foreigner for easy reference. This Dharma
is called Sanatana Dharma. It does
not appear that there is in any other system a term corresponding to the term Dharma.
This peculiar term Dharma comprehends the concepts of Law and
Religion as well. In the British system there is the concept of Law; in
addition, there is the concept of Justice, Equity and Good conscience. For
example, the Law of Limitation prescribes that a debt cannot be recovered
beyond a particular period of time. If a time-barred debt is, however, paid,
the debtor cannot claim refund of it on the ground that he paid an irrecoverable debt. This is as it ought to be, because every
man must discharge his debt; quite irrespective of the fact that it is, or
ceased to be, recoverable in law. The obligation is not merely legal; it is
also moral. Man has to discharge his debt (Rina) more
to release himself than for any other reason. There are higher classes of Rina that have to be discharged for the sake
of self-release. They are Pitru Rina, Daiva Rina
and Guru Rina. They too have to be
discharged by man leading a Dharmic life. The concept
of Dharma, therefore, comprehends not merely the concept of Religion,
but also the concept of Law, Justice, Equity and Good conscience as well.
Let
us take a few
instances from the Hindu system of Law. The son Putra
occupies a supreme position in this system. He was given top priority in
inheritance. He alone can and shall save the parent from the
hell called Put. He is, therefore, called Putra.
“Punnarakat trayate iti Putrah”
It
is not everyone born to a parent that can secure this liberation from that
hell. He must be born of the loins of a lawfully wedded wife Auraso Dharma Patnija. One
who is married to fulfil Dharma is a Dharma
Patni. This union of men and women is established
by Vivaha (marriage), a term which did
not admit of a divorce, unlike in other systems in which marriage is a contract
but not a sacrament. In Western countries the wife is called the ‘better half’.
In the Hindu system she is called the ‘half’ only, neither better nor worse,
and not in the physical sense alone. It is the combination of man and woman,
the opposites, that leads to procreation; what is
more, it is their joint endeavour that should lead to
mutual salvation which is the end of all creation. In Dharma, Artha, Kama, and Moksha, man and woman are equal sharers–Arthangi. Just as in the West the wife is
called a ‘Housewife’ deriving the name from the word ‘House’, so also the Hindu
wife is called a Grihini deriving the
name from the word Griha (house). After
the son, she occupied an important place in inheritance. To accelerate
succession, the son cannot kill his father; in such a case, he is altogether
excluded from inheritance. The primary duty of the wife is to be loyal to her
husband; if not, she is excluded from inheritance.
“Aputra Sayanam Bhartruh Palayanti Vratesthita.” She should protect the
bed of her husband unsullied. If there be no son by the lawfully wedded wife,
one can adopt a boy who can secure liberation for the parent. An adopted son is
the reflection of an Aurasa son Putra Chchaya. The
daughter’s son also can secure this liberation; he is, therefore, equal to an Aurasa son. (Auraso
Dharma Patnija Tat samah Putrika Putrah) Thus, the
whole system of marriage inheritance and adoption, although serving
worldly needs, is based on the discharge of certain religious and moral duties.
Law recognises these duties in shaping itself to
enforce them.
The first and
fundamental concept in Religion is the recognition of the Supreme Creator. All
human effort is directed towards the realisation of the Supreme. Every act is a
sacrifice to the Supreme. It has, therefore, been prescribed that when
performing any action, one should invoke the blessings
of the Supreme God, and then perform the action honestly
in a spirit of surrender to the Supreme. Let us take the institution of a Court
of Law. A Court of Law is constituted to administer justice according to Law.
The Judges who have to render justice, the parties who litigate their causes,
the witnesses who give evidence, take oaths to discharge their respective
duties in the name of God. This is their Dharma. There is perhaps no
other institution where the oath should operate as rigorously as in a Court of
Law. Ministers and several others in charge of administration also take oaths
to discharge their respective duties in the Dharmic
way. In so far as man does not do his duty according to Dharma, he defies
and defiles God and, therefore, becomes a sinner. Our motto
is Satyameva Jayate.
This applies as much to a Court of Law as to any other institution. It is
truth that is eventually victorious. The twin principles of Dharma viz, Saryaan nasti paro Dharma and Ahimsa
Paramo Dharma are respected and
enforced by Law. Forgery (documentary falsehood) and perjury (oral falsehood)
are rendered punishable in Law because they violate the principle of Truth, Satyam. Acts of violence are rendered
punishable in Law because they violate the principle of Non-violence, Ahimsa.
The rule of Ahimsa prohibits not merely the infliction of physical
pain; it prohibits the infliction of mental pain as well. Man desires to
establish a good name that can be acquired only by right conduct. It is,
therefore, cruel to cast a slur on the name of a man. Law, therefore, renders
Defamation punishable. Even after death man is referred to as well reputed, Kirti Sesha. Law
ordains that one should not speak ill of the dead. Speaking ill of the dead is
rendered punishable as Defamation Per se (De mortibus
nil nisi bonum). Religion is
basically tolerant and catholic in outlook. The man of Religion is, therefore,
constitutionally large-hearted and ignores trifles. Law also does not take note
of trifiling offences (De minimis
non curat lex). The
basic principle of Dharma is to uphold righteousness and to suppress
unrighteousness. In no event should righteousness be suppressed or oppressed.
There is a basic principle in Criminal Law that ninety-nine guilty men may
escape punishment rather than one innocent man should be punished. It may perhaps be suggested that there is no
reason why ninety-nine criminals should be let loose on society to perpetrate
all sorts of crimes just because one innocent man may be found guilty in the
process of punishing the greater number of guilty men. While from the point of
view of mere social security the suggestion may perhaps he
acceptable, it cannot be accepted from the point of view of Dharma. Lord
Krishna said in the Bhagavad-Gita:
“Paritranaya Sadhunam Vinasayacha Dushkrutam
Dharma
Samsthapanarthaya Sambhavami
Yuge Yuge”
Protection
of the righteous Sishta rakshana
and punishment of the unrighteous Dushta
sikshana constitute the very process of
establishment of Dharma. Therefore it is that a rule is laid down in the
Criminal Law as stated above.
Religion
enunciates the four Purusharthas–Dharma, Artha,
In
the nature of things it may not be possible to enforce the rules of
Religion and to ensure their observance by any outside agency. These are
matters largely depending upon the willing acceptance by man. In matters of
Religion the non-performance of a prescribed act or the performance of
the prohibited may not in a physical way affect the person or
property of the individual concerned; but that is not the case in matters of
Law. Law has evolved an agency to enforce the laws. The Ruler of a country, be he a monarch, or the elected
representative of the people in a Democracy, has both
the right and the duty to ensure obedience to the Laws of the country. It is,
therefore, of the utmost importance that the Ruler who has to rule
according to Dharma should possess sufficient grasp of the
basic principles of Dharma that should regulate human welfare and
progress. It is enjoined on a Ruler to administer and enforce justice.
“Swasti Prajabhyah Paripalayantam
Nyayena
Margena Maheem Maheesaah”
Then only can the
people live in peace and plenty. It is, therefore, clear that it is only when
Law and Religion work hand in hand, as in fact they do, that man can lead a Dharmic life which leads him to Salvation. Religion is
essentially universal in character. Literally it means a unifying force and,
therefore, a sanctifying force; so is Law which aims at producing world unity.
This unity is not confined in its operation to human beings alone. The sense of
unity is all-pervading and applies to all creation.
Both
man and bird and beast.”
It
is this concept of unity that is sought to be enforced by Law in various forms.
All human endeavour is
directed towards the attainment of world unity. The