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"DHARMO RAKSHATI RAKSHITAH"

(ADDRESS BY DR. SHANKAR DAYAL SHARMA, PRESIDENT OF INDIA,
AT THE FIRST CONVOCATION OF
THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,
BANGALORE, 25TH SEPTEMBER 1993.)

It gives me great pleasure to associate myself with the First Convocation of the National Law School of India University. I thank the authorities in the University for their kind invitation to me to be with you on this important occasion.

The National Law School of India University represents a very carefully considered initiative on the part of eminent members of our judiciary and the Bar as well as various State Governments, towards the organization of this new institution designed to impart meaningful legal education and enhance standards of legal research and professional training.

I am glad to see the systematic manner in which the National Law School of India University (NLSIU) has been developed in terms of the various branches of its curriculum, building of faculty strengths, the innovative approaches towards effective teaching with its emphasis on maximum teacher-student interaction, practical exposure to legal mechanisms, and the value-based interdisciplinary approach towards learning, understanding and application of law. I would like to congratulate the authorities of the University and all others for their effort in putting this unique institution on a sound footing in such a short period of time.

This Convocation marks the entrance of the first batch of graduates from the National Law School of India University into the legal fraternity in our country. I have pleasure in extending to them my greetings and felicitations. The students of the first generation in this institution have special importance. The progress and performance of each student will, in a way, reflect the efficacy and social value of the instruction imparted in the NLSIU.

Friends, is the motto of this University and this brings to mind the immensely profound heritage of thought concerning Law that belongs to us. Philosophies, doctrines, concepts and perceptions of great refinement enrich the corpus of legal thinking in our country. Ideas bearing a perennial relevance have been expressed with remarkable precision from the earliest times. (Dharma is a word that has entered the lexicon of the English language. Webster's New Collegiate Dictionary gives the following meaning: 'dharma' : n. [Skt. fr. 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 Concise Oxford Dictionary has it as: Right behaviour: virtue: the Law [Skt a decree, custom]). The Rg. Veda refers to the existence of 'Sanatan Dharmani' or ancient ordinances. Considering the antiquity of the Rg. Veda itself as humankind's earliest literature, one may only conjecture as to the even greater antiquity of these ordinances which even the thinkers in the period of the Rg. Veda considered ancient. The concept of 'Dharma' has therefore been with us for time immemorial. What does Dharma mean? The word is clearly derived from the root 'Dhr'-which denotes : 'upholding', 'supporting', 'nourishing' and 'sustaining'. -that which upholds is Dharma. In the Karna Parva of the Mahabharata. Verse-58 in Chapter 69 says:

(Dharma is for the stability of society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfilment of these objects is Dharma, that is definite.)

The Brihadaranyakopanishad identified Dharma with Truth, and declared its supreme status,.

[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 wrongdoer) with the help of the King. So what is called Dharma is really Truth. 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.]

A similar thought is expressed in the Ayodhya-kanda of the Valmiki Ramayana, in Verse- 10, Sarga- 109:

(From the ancient times the constitutional system depends on the foundation of Truth and social sympathy. Truth is the fundamental basis of the State; indeed the whole universe rests on Truth.)

The Rg Veda states that the Law and Truth are eternal born of sacrifice and sublimation :

-Rg Veda X- 190-1

The Niti Vakyamrit begins with the statement:

The Yajnavalkya Smriti states:

(The Shruti, the Smriti, the approved usages, that which is agreeable to one's inmost self or good conscience, and has sprung from due deliberation, are ordained as the foundation of Dharma.)

Chanakya had stated (Chanakya Sutram 234) "Law and Morality sustain the world."

The Vaisheshika Sutra defines Dharma as: "that from which results true happiness":

The Bhagwad Gita refers to

Focussing on aspects of Dharma in the Arthashastra, Kautilya has indicated it as "the basis for securing and preserving power over the earth."

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', somewhat in terms of the modern concept of the Rule of Law. i.e. of all being sustained and regulated by it.

The Mahabharata has expressed this with great clarity. In the Shanti Parva Verse-3 (1), Chapter-90 says

(that is. "the proper function of the King is the maintenance of the law, not enjoying the luxuries of life",)

It then reiterates:

-Shanti Parva, Verse-20, Ch. 90

(Law only is supreme. so the king who regulates society in fulfilment of the law discharges his functions appropriately.)

In Verse-9 of Chapter-5 in the Ashrama Vasika Parva of the Mahabharata, Dhritarashtra states to Yudhisthira:

(the State can only be preserved by Dharma - under the Rule of Law.)

These perceptions of the Rule of Law were echoed by ancient thinkers in the West. Aristotle stated that "the true relation between Law and government is secured by making the law sovereign and the government its servant." Plato reiterated this. in "The Laws" and Cicero said: "There exists a supreme and permanent law, to which all human order, if it Is to have any truth or validity, must conform."

The comment of Sir Edward Coke on the House of Lords' Amendment to the Petition of Rights in 1628 comes to mind: "Magna Carta is such a fellow that he will have no sovereign !"

Later, many thinkers including Augustine, Austin, Fortesque and others further developed this view-point.

The Rule of Law in our ancient thought was strictly corelated with the purpose of securing social well being. Kautilya in his Arthashastra has said:

(Kautiliya Arthashastra, 1-9-39)

(In the happiness of his populace is the king's happiness, in their welfare, his own. His good is not that which pleases him, but that which pleases his people.)

The Markandeya Purana expresses the purpose of Dharma as:

(Ch. 188, Verse 12-17)

(That all persons may be happy, may express each other's happiness, that there may be welfare of all, all being free from fear and disease: cherish good feelings and sense of brotherhood, unity and friendship.)

It is this stress on the identification of Dharma with Truth and Social well-being, Duty and Service that impelled in Yudhisthira to express his own ambition, as Dharmaraja, the words:

(I seek no kingdom nor heavenly pleasures nor personal salvation, since to relieve humanity from its manifold pains and distresses is the supreme objective of Mankind.)

It is in this context that the phrase 'Victory of Dharma' could be understood, as employed by the Mauryan Emperor, Ashoka, 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).

The ancient juristic thinkers who laid down the detailed laws of procedure in judicial matters : Brihaspati, Yajnavalkya, Narada and a galaxy of other brilliant minds made contributions in this connexion. Narada declared the four stages in relation to a case in terms of the connexion of the case to the whole system of the law, the bearing of the specific law onto facts of the case, the identification of specific remedies and the essence of adjudication. He speaks of different kinds of proof, of the laws of evidence, examination of witnesses, restraints that may be placed on defendants (These correspond with such modern processes as attachment or arrest before judgment and temporary injunction). Narada also classified the decrees a court may make, the make-up of a judicial mind, the psychology of a plaintiff, et al. Narada refers to the four types of answers that a defendant may put after a plaintiff has submitted his claim or charge. These included a denial, a confession, a special plea or a plea of previous judgment ( the last corresponding to the concept of Precedent in modern jurisprudence).

The Katyayan Smriti represents a high point of ancient Indian jurisprudence. Among other matters it refers to the four stages of legal proceedings: The plaint, the reply the stage of deliberation as to burden of proof and of adducing of proof. He refers to the method of consideration of the evidence by the court and the declaration of the judgment and order. The Law of Evidence similarly was developed, attention being paid to the quality and character of documents and witnesses for determining the evidentiary value. The specialized nature of the work involved in making a cogent presentation of case. including assemblage of precedents, interpretation of law and rules, and utilization of various available devices to secure justice, makes it clear that such matters were handled by experts who had made the study of law their special profession.

I have recalled aspects of this great heritage that belongs to all of us, not with a view to our looking back for the sake of glory, but towards drawing lessons and guidance with a view to the future. It is noteworthy that the wisdom of the ancients, the doctrines and concepts of jurisprudence, the system of laws, the rules and procedural features, could succeed only so long as the essential purpose of Dharma and the determination to uphold Dharma was maintained in the country. Not just law or doctrine devices to secure justice. makes it clear that such matters were handled by experts who had made the study of law their special profession.

I have recalled aspects of this great heritage that belongs to all of us, not with a view to our looking back for the sake of glory, but towards drawing lessons and guidance with a view to the future. It is noteworthy that the wisdom of the ancients, the doctrines and concepts Of jurisprudence, the system of laws, the rules and procedural features, could succeed only so long as the essential Purpose of Dharma and the determination to uphold Dharma was maintained in the country. Not just law or doctrine or philosophy but a climate of public opinion and resolution to uphold law, is necessary if the benefits of the Rule of Law are to accrue to Society. That is why the statement "Dharmo Rakshati Rakshitah" which occurs in the fifteenth verse of the eighth chapter of the Manu Smriti, and which is the motto of your University, is so meaningful and relevant: "Dharmo Rakshati Rakshitah": who shelters and defends the law, the law defends and shelters.

Distortions and deficiencies in public outlook, beliefs, and way of life accounted for the decay and demolition of our ancient systems of jurisprudence.

A pragmatic political thinker such as Kautilya, with his accent on expediency and material advantage had declared in his Chanakya Shastra:

("He who sees all beings as one may be deemed learned") A cardinal principle. regarding the strength of the State being derived from a sense of oneness amongst its people, was thus recognized and stated by that expert practitioner in the art of governance. But what happened in our country? The sense of oneness had been ruined and, contrary to Dharma and the laws, its place was taken by all manner of differentiation of the people in moribund, weakening divisions of castes and sub-castes, complicated social prejudices, unjust subordination, greedy exploitation, inhuman regimens. The sum of all these was the obscuring of the pristine purity and strength of basic dictates of our ancient culture, and our eventual reduction into bondage.

Let me conclude with some words from the "Shikshawalli" in the Tattiriya Upanishad, which has for ages strengthened our centres of education and contains invaluable advice to students passing out from an institute of learning:

"SATYAM VADA; DHARMAM CHARA,
SWADHYAYANMAA PRAMADAH;
SATYAANNA PRAMADITAVYAM;
DHARMAANNA PRAMADITAVYAM;
KUSHALAANNA PRAMADITAVYAM;
BHUTYAI NA PRAMADITAVYAM;
SWADHYAYA PRAVACHANAABHYAAM NA PRAMADITAVYAM;
EVAMUPASITAVYAM EVAMUCIIAITADUPAASYAM"

(Forever speak the truth: follow the Dharma;
Strive constantly towards true learning and progress
Forever on the righteous way to welfare,:
Teach the world as diligently as you learn;
Behave this way every day, Life-long;
Conducting yourself thus be creating and ascendant.)


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