PETITIONER: SHRI A.S. NARAYANA DEEKSHITULU Vs. RESPONDENT: STATE OF ANDHRA PRADESH & ORS. DATE OF JUDGMENT: 19/03/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 AIR 1765 JT 1996 (3) 482 1996 SCALE (2)911 ACT: HEADNOTE: JUDGMENT:
WITH
WRIT PETITION NOS. 1063, 1090, 1374 OF 1987 AND 173/90 AND
TRANSFER CASE NOS.168/88, 170-76/88, 2/90, 37 & 38/90,3/93
AND 4/93.
J U D G M E N T
HANSARIA, J.
It may look pedantic to say anything more in the face
of the very scholarly and erudite judgment of my learned
brother with when I am in respectful government on all
counts. This concurring note is only to highlight one facet
of his case, which had not been traversed earlier, but which
has its own importance. The same is the difference between
“religion”, a word used in Articles 25 and 26, and “dharma”
known to our psyche. I wish to put on record the difference
in my own way and to say that our constitution makers had
used the word “religion” in these two articles in the sense
conveyed by the word “dharma”.
Very often the words “religion” and “dharma” are used
to signify one and the same concept or notion; to put it
differently, they are used inter-changeably. This, however,
is not so, as would become apparent from what is being
stated later, regarding our concept of dharma. I am of the
considered view that the word religion in the two articles
has really been used, not as is colloquially understood by
the word religion, but in the sense of it comprehending our
concept of dharma. The English language having had no
parallel word to dharma, the word religion was used in these
two articles. It is a different matter that the word dharma
has now been accepted even in English language, as would
appear from Wester’s New Collegiate Dictionary which has
defined it to mean : “Dharma : n. [Ekt. ff.dharayati he
holds;] akin to L firmus firm: custom or law regarded as
duty: the basic principles of cosmic or individual
existence: nature : conformity to one’s duty and nature.”
The Oxford Dictionary defines dharma as : “Right behaviour,
virtue; the Law [Skt = a decree, custom]”.
The difference between religion and dharma is
eloquently manifested when it is remembered that this
Court’s precept is “. It is apparent that the word dharma in
this cannon or, for that matter, in our saying: does not
mean religion, but the same has been used in the sense
defined in the aforesaid two dictionaries. This is how the
President of India, Dr. Shanker Dayal Sharma, understood the
word dharma in his address at the First Convocation of the
National Law School of India University delivered on 25th
September, 1993 at Bangalore.
Our dharma is said to be `Sanatana’ i.e. one which has
eternal values; one which is neither time-bound nor space-
bound. It is because of this that Rg. Veda has referred to
the existence `Sanatan Dharmani’. The concept of `dharma’,
therefore, has been with us for time immemorial. The word is
derived from the root `Dh.r’ – which denotes; `upholding’,
`supporting’, `nourishing and `sustaining’. It is because of
this that in Karna Parva of the Mahabharata, Verse-58 in
Chapter 69 says :
“Dharma is for the stability of the
society, the maintenance of social
order and the general well-being
and progress of humankind. Whatever
conduces to the fulfillment of
these objects is Dharma; that is
definite.”
(This is the English translation of the Verse) as finding
place in the aforesaid Convocation Address by Dr. Shanker
Dayal Sharma.)
The Brhadaranyakopanisad identified Dharma with Truth,
and declared its supreme status thus :
“There is nothing higher than
dharma. Even a very weak man hopes
to prevail over a very strong man
on the strength of dharma, just as
(he prevails over a wrong-doer)
with the help of the King.
Therefore people say about a man
who declares the truth that he is
declaring dharma and about one who
declares dharma they say he speaks
the truth. These two (dharma and
truth) are this.”
(English translation of the original text as given in the
aforesaid convocation address).
The essential aspect of our ancient thought concerning
law was the clear recognition of the supremacy of dharma and
the clear articulation of the status of `dharma’, which is
somewhat akin to the modern concept of the rule of law, i.e.
of all being sustained and regulated by it.
In Verse-9 of Chapter-5 in the Ashrama Vasika Parva of
the Mahabharata, Dhritrashtra states to Yudhisthira : “the
State can only be preserved by dharma – under the rule of
law.”
Ashoka mentioned about victory of dharma in his rock
edict at Kalsi which proclaimed his achievement in terms of
the moral and ethical imperatives of dharma, and
exemplified the ancient dictum : (where there is Law, there
is Victory).
We may with profit refer to another learned speech
given by the President of India at the valedictory session
of Parliament of Religions held at Calcutta on 19th
September, 1993. Dr. Sharma was there principally speaking
on the contributions of Swami Vivekananda to our religion
and referred in this connection to the address of Swamiji
given at the International Conference of Religions held at
Chicago in September 19, 1893, when he explained many
salient features of the Vedic and Vedantic body of thought
and defined the characteristics of a religion “whose whole
scope, whole force, will be centered in aiding humanity to
realize its own true… nature.” The President further
quoted another thought of Swami Vivekananda where he had
said : “Religion is neither word nor doctrine….It is deed.
It is to be and become. It is the whole soul changed into
that which is believed….”
Aforesaid was the Indian concept of religion of which
the framers of the Constitution were aware and it is because
of this that the word “religion”, as used in Articles 25 and
26 of the Constitution cannot be confined, cabined and
crabbed, according to me, to what is generally thought to be
religion.
Swami Rama in his book `A Call to Humanity’, published
by the Himalayan International Institute of Yoga Science and
Philosophy of the U.S.A. in 1988 has taken pains to
demonstrate the difference between religion and dharma. It
would be profitable to note what this great saint has said
in this regard. The word religion, as presently understood,
is comprised of rituals, customs, and dogmas surviving on
the basis of fear and blind faith; whereas dharma
encapsulates those great laws and disciplines that uphold,
sustain, and ultimately lead humanity to the sublime heights
of wordly and spiritual glory. Dharma shines in the form of
truth, non-violence, love, compassion, forbearance,
forgiveness, and mutual sharing.
Swami Rama mentioned in this connection what the great
master, Krishna, stated to Arjuna about the essence of the
Upanishads. He introduced a healthy lifestyle through which
people could attain the state of peace here and now. But
with the passage of time, people formed a cult around
Krishna, giving birth to new religion with various branches.
The distinction between religion and dharma has also
been explained by saying that religion is enriched by
visionary methodology and theology, whereas dharma blooms in
the realm of direct experience. Religion contributes to the
changing phases of a culture; dharma enhances the beauty of
spirituality. Religion may inspire one to build a fragile,
mortal home for God; dharma helps one to recognize the
immortal shrine in the heart.
The author goes on to say that the perennial truths,
rules, and laws that help maintain peace and harmony in
one’s individual and in the community life constitute
dharma. It applies for all times and in all places. Social
laws and even national constitutions devoid of such a dharma
will lead a society toward an inevitable decline.
Thus, having love for all human beings is dharma.
Helping others ahead of one’s personal gain is the dharma of
those who follow the path of selfless service. Defending
one’s nation and society is the dharma of soldiers and
warriors. In other words, any action, big or small, that is
free from selfishness is part of dharma.
Swami Rama has further stated that dharma has been a
great force in uplifting the human race. Dharma can help us
today as it did in ancient times, but only if we start
living by truth, not merely believing in truth. During away
from dharma and distancing oneself from the Truth is not a
desirable way of living. It ultimately leads to misery. In
the practice of dharma, one is advised to shed to veil of
ignorance and its source ? Withholding nothing, all the
great sages in the world shared their knowledge with
humanity. In the Bhagavad Gita, the Bible, Koran, and
Dhammapada – knowledge, like the sun, shines for all.
It is because of the above that if one were to ask
“What are the signs and symptoms of dharma?”, the answer is:
that which has no room for narrow-mindedness, sectarianisms,
blind faith, and dogma. The purity of dharma, therefore,
cannot be compromised with sectarianism. A sectarian
religion is open to a limited group of people whereas dharma
embraces all and excludes none. This is the core of our
dharma, our psyche.
Nothing further is required to bring home the
distinction between religion and dharma; and so I say that
the word “religion” in Articles 25 and 26 has to be
understood not in a narrow sectarian sense but encompassing
our ethos of Let us strive to achieve this; let us spread
the message of our dharma by availing and taking advantage
of the freedom guaranteed by Articles 25 and 26 of our
Constitution.
