LL.B.

VI Term

JURISPRUDENCE-II

Compiled and Edited by

Anju Vali Tikoo

Alka Chawla
Seema Singh
Anumeha Mishra
Vinayak Sharma (Research Assistant)

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI – 110007
 Semester - Sixth
Course Name - Jurisprudence-II
Course Code – LB 604
(Compulsory Paper)

Target Group: Students of Law, Political Science, History, Sociology

Course Objectives:

This Course aims to introduce to students with the jurisprudential analysis of certain concepts
in the field of Law. These concepts are basic and essential for the study of Law. By learning
the Jurisprudential Analysis of basic concepts, the students shall gain the expertise in analyzing
other concepts also used in the field of Law. Students will also learn how to use this expertise
in filing and contesting the cases on strong grounds before the Courts of Law in India as well
as in other countries. The philosophical understanding of the concepts will give them
fundamental clarity in different arenas of law.

Course Learning Outcomes:

Upon successful completion of the course, students will be able to:

1. Have in depth knowledge of basic concepts in jurisprudence and to develop a critical
approach in the field of law by integrating Indian Knowledge System with liberal
democratic traditions.
2. Have a foundational understanding of Indian philosophy of law and ability to critically
examine the historical, epistemological and social context of these philosophical ideas.
3. Identify the strengths and limitations of different theories and models in explaining the
basics of Law and to develop the capacity to critically engage with the diverse
civilizational perspectives in legal research.
4. Apply their knowledge, skills and creativity to get the solution of contemporary legal
problems.
5. Differentiate properly among various concepts and perspectives and use them
appropriately wherever required.

Contents: PART A + PART B

 PART A (Legal Concepts)

Unit 1. Dharma and Purushaarth

 Concept of "Righteous Law" (Dharma Vyavastha).
 Sources of Dharma, key principles and legal concept: Vedas, Upanishads, Smritis,
Dharma Shastras, Epics.
 Dharma, Artha, Kama, Moksha; their interrelationship and relevance to law.
 Meaning & Interpretation of: Satyameva Jayate– Truth alone Triumphs– National
Motto of Bharat and Yato Dharmastato Jayah -Where there is Dharma, there will be
victory– The Motto of the Supreme Court of India
 Rights & Duties

READINGS:

a) Seema Singh and Vinayak Sharma, “Exploring the Concept of Dharma in Bharatiya
Jurisprudence: With Special Reference to Rule of Law” Kamkus Law Journal 34-66
(2023)…………………………………………………………………………….....…1
b) Seema Singh, “Sprituality: The Foundation of Law” 45 Manthan 50-56
(2024)………………………………………………………………………………...27
c) Duties and Rights of Citizens in the Dharmasutra by Pratibha Shastri………………36
d) R.W.M. Dias, “Jural Relations”, Jurisprudence, pp. 23-43 (1994)…………………..54
e) Upendra Baxi, “Laches and the Rights to constitutional Remedies: Quis Custodiet
Ipsos Custodes?”, Alice Jacob (ed.), Constitutional Developments since Independence
(1975)………………………………………………………………………………...67
f) Bhikhu Parekh, “The Modern Conception of Right and Marxist Critique” in Upendra
Baxi (ed.), The Right to be Human, pp. 1-22 (1987)…………………………………72

Unit 2. Person and Personality

READINGS:

a) Joel Feinberg, “The Rights of Animals and Unborn Generations” in Philosophy &
Environmental Crisis by William T. Blackstone (ed.), pp. 43-68
(1974)………………………………………………………………………………...83
b) R.W.M. Dias, Theories of the Nature of "Legal Person" in Jurisprudence, pp. 265-
270 (1994)……………………………………………………………………………93
c) Taniya Malik “Spiritual and Cultural Linkages in the Recognition of River
Personhood in Select Jurisprudence: A Critical Analysis”, in Seema Singh and Raman
Mittal, Law and Spirituality (Kitabwale, New Delhi, 2024)…………………..……..98
d) Cases:
 Pramatha Nath Mullick v. Pradyumna Kumar Mullick,
(1925)27BOMLR1064……………………………………………………...105
 Rama Reddy v. Ranga Dasan And Ors., AIR 1926 MADRAS 769………..107
  Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Som Nath
Dass & Ors., AIR 2000 SC 1421…………………………………………..109
 Lalit Miglani vs State of Uttarakhand And Others, WPPIL 140/2015,
Uttarakhand High Court, 2017…………………………………………………….111

Unit 3: Possession and Ownership

READINGS:

a) P.J. Fitzgerald, Salmond on Jurisprudence, 265-295 (1966) ………………………113

b) A.M. Honore, “Ownership” in A.G. Guest (ed.) Oxford Essays in Jurisprudence,
(Oxford University Press, 1961). ……………………………………………….….132
c) Lallanji Gopal, “Ownership of Agricultural Land in Ancient India”, 4 Journal of
the Economic and Social History of the Orient 240-263 (1961)……………………140

Unit 4. Property Law

 Property in Dayabhaga
 Property in Prakranam of Mitakshara

READINGS:

a) P.V. Kane, III History of Dharmashastra 543-563 (Bhandarkar Oriental Research

Institute, 1946)……………………………………………………...………………164

PART B (Legal Theories)

Unit 5. Theories of Justice: Nyay (justice) in Indian philosophy vis a vis Justice:
Principles of Fairness, Impartiality, and Equitable Distribution
 Kautilya
 Rawls
 Fuller
 Nozick
 Amartya Sen: The Idea of Justice (Niti and Nyaya)

READINGS:

a) Balbir S. Sihag, “Kautilya on Administration of Justice during the fourth century

B.C.”, 29 Journal of the History of Economic Thought 359-377 (2007)…………...185
b) Thomas Nagel, “Rawls on Justice”, 82 The Philosophical Review 220-234 (1973)……204
c) Robert C. L. Moffat, “Searching for Substantive Justice: Lessons from Lon Fuller’s
Natural Law”, University of Florida Legal Studies Research Paper No. 2009-30
(2009)………………………………………………………………………………….219
d) Robert Nozick, Anarchy, State, and Utopia 149-182 (Basic Books, 1974)…………….238
 e) Amartya Sen, “The Idea of Justice”, 9 Journal of Human Development 331–342
(2008)………………………………………………………………………………….248
f) The Concept of Nyaya (Justice) in Indian Philosophical Tradition and Contemporary
Theories (John Rawls & Amartya Sen) by Babita Singh Parasain………………....260

Unit 6. Logic and Epistemology in Indian Thought

 Nyāyaśāstra (Jurisprudence of Logic): Sixteen Categories of Nyaya,
Ānvīkşikī (Science of Inquiry)
 Logical Fallacies – Fallacy against Reality, Fallacy of Contrary Reason, Fallacy of
Uncertain Reason
 Science of Interpretation (Mimamsa
 Nyaya and Buddhist Logic: Tarkavidyā (Reasoning) or “hetuśāstra” or “hetuvidyā”
 Vada-Vidya: Buddhist and Nyaya methods of Dialectic

READINGS:

a) Nyaya in Legal Reasoning and Argumentation by Mohan Parsain…………………277

b) Logical Fallacies in the Nyāya System of Logic and Debate by Ashutosh Dayal
Mathur………………………………………………………………………………295
c) ‘Interpretation’ – An Exploration of Mimamsa & Its Contemporary Relevance by
Brunda Karanam..……………………………………………………..……………302
d) Buddhist logico – epistemology, available at:
https://www.du.ac.in/du/uploads/departments/BuddhistStudies/Study%20Material/21
052020_401B_Buddhist%20logic-epistemology.pdf (last visited on January 15,
2025)………………………………………………………………………………..321

Unit 7. Theories of Reality

 Charvaka Materialism: Skepticism and Evidence-based reasoning
 Concept of Anekantavada (many-sidedness of truth) in Jainism: Impact of multiple
perspectives on legal interpretation and decision-making
 Advaita: Non-duality and interconnectedness of all beings, Justice as Oneness

READINGS:

a) Theories of Nature of Reality: Materialism of Charvaka, Anekantavada of Jainism and

Non-dual Nature of Reality in Advaita by Mohan Parasain…………………….….330
SUGGESTED READINGS
(These readings have been suggested for a deeper understanding of the concepts for teachers and
students.)

UNIT 1:
 Concept of Purushartha by Shankar Kumar Mishra………………………………...…1
 पु षाथ-चतु य की अवधारणा (Hindi Translation of Concept of Purushartha by Shankar
Kumar Mishra………………………………………………………………..……………..13
 धम की अवधारणा - Shankar Kumar Mishra…………………………………………..24
 धमसू ों म नाग रकों के कत और अिधकार (Hindi Translation of Duties and Rights of
Citizens in the Dharmasutra by Pratibha Shastri)………………………………..………47
 Justice M. Rama Jois, Legal and Constitutional History of India: Ancient, Judicial
and Constitutional System (LexisNexis Publication, 1st edn., 2022).
 S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Central Law
Agency, 2019).
 Seema Singh & Raman Mittal, Law and Spirituality (Kitabwale, New Delhi, 2024).
 Ronald Dworkin, Taking Rights Seriously, Chapter 7, pp. 184-205.
 Allen Buchanan, “What is so Special about Rights,” Social Policy & Philosophy,
pp. 61-75 (1984).
 S. Ganesh, “Vedic Concept of Dharma” Purvamimamsa, Vol 12 (2021).
 Hohfeld's Contributions to the Science of Law Walter Wheeler Cook (ed.),
Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal
Essays by Wesley Newcomb Hohfeld, pp. 1-15 and pp. 27-73 (1919).

UNIT 2:
 Lalit Miglani vs State of Uttarakhand And Others, WPPIL 140/2015, Uttarakhand High
Court, 2017…………………………………………………………………………………..65
 The State Trading Corporation of India Ltd. & Ors. vs. The Commercial Tax Officer,
Visakhapatnam & Ors, AIR 1963 SC 1811; 1964 SCR (4) 89.
 Kanta Mohanlal Kotecha vs. Branch Manager, United India Insurance Company
Limited, 2006 lndlawSCMAH5.
 Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation
vs. Vidya Shinde, 2005ACJ69.
 Bhawari bai vs. New India Assurance Co.Ltd.,2006 ACJ2085. Manikuttan vs. M.N.
Baby, 2009 ACJ 1497.

UNIT 3:
 Law of Possession & Ownership of Property by Arindam Mitra, published by Sodhi
Publication, 2024.
 Property Law: Rules, Policies, and Practices, by Joseph William Singer, published by
Wolter Kluwer, 2017.
 The Constitutional mandate for social welfare – systemic differences and links
 between property, land rights and housing rights by AJ van der Walt &S Viljoen,
available at; https://scielo.org.za/pdf/pelj/v18n4/10.pdf

UNIT 4:
 दायभाग की अवधारणा - Shankar Kumar Mishra…………………………………...…79

UNIT 5:
 The Arthashastra by L.N. Rangarajan and R. Shamashastry.
 Kautilya -Theories of Punishment, Kautilya Arthashastra – Udayveer Shastri.
 A Theory of Justice: by John Rawls, Harvard University Press, 2009.
 Criminal Justice: Mainstream and Crosscurrents, by John Randolph Fuller, Oxford
Publication, 2013.
 Nozick’s Libertarian Theory of Justice Peter Vallentyne, University of Missouri, in
Anarchy, State, and Utopia—A Reappraisal, edited by Ralf Bader and John
Meadowcroft (Cambridge University Press: 2011), pp. 145-67. available at
https://klinechair.missouri.edu/docs/nozicks_theory_of_justice.pdf
 Robert Nozick: Property, Justice, and the Minimal State, by Jonathan Wolff, Stanford
University Press, 1991.

UNIT 6:
 Nyayashastra by Madhav Janardan Ratate…………………………………………...89
 Mimansa by Madhav Janardan Ratate……………………………………………..…99
 Mimansa by Ashok Mehta………………………………………………………….118
 मीमां सा का ल ण िस ा (िलंग) – Satyendra Kumar Tripathi………………………140
 Matilal, B. K. (2005). Epistemology, Logic, and Grammar in Indian Philosophical
Analysis, (ed. Jonardon Ganeri) New Delhi: Oxford University Press.
 Dasti, Matthew R. “Nyaya”, Internet Encyclopaedia of Philosophy,
https://iep.utm.edu/nyaya/
 Stcherbatsky, Theodore. – Buddhist Logic (in two vols.), Dover Publications Inc.,
New York. 20955-5, 20956-3
 Vidyabhushna, S. C. (2005). A History of Indian Logic: Ancient, Medical and Modern
Schools, New Delhi: Shiv Books International.
 Nyayabindu of Dharmakirti, ed. By Chandrashekhar Shastri, Chaukhambha Sanskrit
Series, 1954.
https://archive.org/details/NyayaBinduOfDharmakirtiWithDharmottaraCommentaryC
handraShekharShastri/page/n1/mode/2up
 Todeschini, Alberto, (2010). “Twenty-Two Ways to Lose a Debate: A Gricean Look
at the Nyaya Sutras Points of Defeat.” Journal of Indian Philosophy 38 (1):49-74.
https://doi.org/10.1007/s10781-009-9083-y
 Mimansa darshanam by Jaimini, published by Chaukhamba Publications, Varanasi.
 Mimansa Rules of Interpretation by Just. Markandey Katju (K.L Sarkar's, Tagore
Memorial Lectures, 2nd Ed. Modern Law Publications.
  Inside Chanakya's Mind: Ānvīkşikī and the Art of Thinking, by Radhakrishnan Pillai,
Published by Penguin Random House.

UNIT 7:
 Satish Chandra Chatterjee and Dhirendra Mohan Dutta, An Introduction to Indian
Philosophy.
 Max Weber, The Religion of India: The Sociology of Hinduism and Buddhism,
 B K Matilal, The word and the world: India’s Contribution to Philosophical Studies.
 EXPLORING THE CONCEPT OF DHARMA IN BHARATIYA JURISPRUDENCE:
WITH SPECIAL REFERENCE TO RULE OF LAW

Seema Singh & Vinayak Sharma

The ancient Bharatiya philosophy encompasses the fundamental concept of

Dharma in its roots, which incorporated a comprehensive framework that governed
various aspects enumerated in Dharmashastras, namely, Achara (rules of daily
routine), Vyavahara (legal proceeding), and Prayaschita (penance). However, with
the Muslim invasion and British colonization in Bharat, the Dharma-based legal
system started losing its significance and was modified, supplemented, and finally
superseded by legislative enactments. The law, which was at one time revealed to
have a divine origin being a part of Dharma, has now become “man-made” law
and therefore has lost its divinity. Unfortunately, people began to view Dharma
solely as a form of religion. Moreover, the Indian Constitution has ignored the
“Rule of Law” principle already given in the Brihadaranyaka Upanishad around
750 BCE and adopted Sir Edward Coke's (1610) and Dicey's (1885) “Rule of Law.”
The Rule of Law/Dharma that existed in the ancient Bharatiya legal system was
far more superior and inclusive than what India has envisaged in the modern
Constitution. Hence, this chapter seeks to delve into the fundamental concept of
Dharma by elucidating the various ‘sloka’ to provide nuanced interpretations of
Dharma in the modern legal discourse. Also, this study symbolically relates
Dharma, Artha and Kama with the golden triangle of Indian Constitution.
Furthermore, this study seeks to interpret the modern principle of “Rule of Law”
in light of the “Rule of Dharma” principle elucidated in ancient Bharatiya
Jurisprudence.

INTRODUCTION

The principle of Rule of Law is followed in every democratic state of the world. In
simple terms, it means that the state is governed by the law and not by the ruler. The law is
supreme. To understand the Rule of Law, we need to understand “Law” in its true sense first.
Do we really understand it in its true sense? If so, why, despite the existence of thousands of
legislations and international conventions, we are still unable to deliver justice to the majority
of living beings on this earth? Why are conflicts rising globally? From the global to the local
level, are laws truly able to fulfill the legitimate expectations of the people? Are they free from
infirmities? All these questions are addressed later in this article.


Assistant Professor, Campus Law Centre, Faculty of Law, Delhi University. The author is a Member of the
Academic Council, Delhi University and India Policy Foundation. Former Advisor National Commission for
Scheduled Tribes. The author is PhD in Law from Jamia Millia Islamia University, New Delhi.

Ph.D. Scholar and Junior Research Fellow, Department of Law, Delhi University.

1
 Joseph Raz, in his work, ‘The authority of law: Essays on law and morality’,1 identifies
several principles that are essential to a functioning Rule of Law system. These include: (1) All
laws should be prospective, open, and clear. (2) Laws should be relatively stable. (3) The
making of particular laws (particular legal orders) should be guided by open, stable, clear, and
general rules. (4) The independence of the judiciary must be guaranteed. (5) The principles of
natural justice must be observed. (6) The courts should have review powers over the
implementation of the other principles. (7) The courts should be easily accessible. (8) The
discretion of the crime-preventing agencies should not be allowed to pervert the law.

Brian Tamanaha, in his work, ‘A Concise Guide To The Rule Of Law’,2 provides the
modern definition of the Rule of Law. It means that both government officials and citizens
must follow and act according to established laws. For this to work, certain key features are
required: laws must be prospective in nature, made public, apply equally to everyone, be clear,
stable, and consistent. There must be mechanisms or institutions that enforce the legal rules
when they are breached.3 Without these qualities, the Rule of Law cannot function properly.4

This is known as the ‘formal’ or ‘thin’ definition of the Rule of Law, which is a basic
version focusing on how laws are made and applied. There are more comprehensive or ‘thicker’
definitions that also include concepts like human rights, democracy, and justice. The narrow
definition is used here because it serves as a common starting point that different interpretations
of the Rule of Law share, though many go further than this minimal version. This approach can
work in a variety of societies and legal systems.5

According to Upendra Baxi,6 The Rule of Law has a long history, often viewed as an
initial contribution to Euro American liberal political theory. It can be seen as a ‘thin’ notion
involving procedural restraints on sovereign power and governmental conduct, or a ‘thick’
conception involving theories about the ‘good’, ‘right’, and ‘just’. However, critical historians
have shown that both versions have been consistent with violent social exclusion, domination
by men over women, and persecution of minorities. The triumphalist celebration of Rule of
Law as an “unqualified human good” reduces struggles against colonialism/imperialism to a
‘whites-only’ affair. The promotion of Rule of Law as a cultural export continues to perpetuate
old contamination in today's globalized world.7

The concept of ‘Rule of Law’ has evolved significantly in contemporary discourse,

moving from a bounded conception to a universalizing/globalizing notion. This shift is
influenced by emerging global social policy and regulation, such as the war on terror and the

1
Joseph Raz, The Authority of Law: Essays on Law and Morality 215 (Clarendon Press, 1979).
2
Brian Z Tamanaha, “A Concise Guide to the Rule of Law”, in Neil Walker and Gianluigi Palombella (eds.),
Florence Workshop on the Rule of Law 3, (Hart Publishing, 2007).
3
Brian Z Tamanaha, “The History and Elements of the Rule of Law” Singapore Journal of Legal Studies 232
(2012).
4
Supra note 2.
5
Ibid.
6
Upendra Baxi, “The Rule of Law in India” 6 SUR – International Journal on Human Rights 7 (2007).
7
Id. at 7-8.

2
paradigm of trade-related, market-friendly human rights. International financial institutions,
such as the World Bank, now present themselves as global sovereigns, determining how the
‘poor’ is defined, measured, and redefined. This shift has led to a re-articulation of Rule of Law
notions, with human rights and social activism practices contributing to the re-articulation of
Rule of Law. The new Rule of Law discourse is untroubled by the bounded Rule of Law
conceptions, which emphasized limited governance and concentration of powers. This
contradiction between Rule of Law as a globalizing discourse celebrating various forms of
‘free’ market fundamentalisms and new forms that seek to universalize human rights
fundamentalisms is at stake. This incommensurability defines the space for interpretive
diversity and progress in measurement that standardizes new core meanings of the Rule of Law
through human rights and development indicators.8

Generally, in the legal discourse, the Rule of Law owes its origin from ancient Greek
law and was later developed ultimately by western jurisprudence, which all the modern
democratic states envisaged in their constitutions. But the credit of origin and development of
Rule of Law in the Bharatiya Jurisprudence cannot be ignored. All the sources whether
Brihadaranyaka Upanishad, Manusmriti, Kautilya’s Arthashastra, Rajtarangni etc. have been
discussed later in this article. We also find the various instances in great epics, i.e., Ramayana
and Mahabharata, where the Rule of Dharma was followed, whether it was Lord Rama’s
acceptance of exile, Bharata’s refusal to rule, Lord Rama’s decision to banish Goddess Sita, or
the vow of Devavrata in Mahabharata to observe celibacy (Brahmacharya) throughout the life.
We will discuss all these instances later in this article.

In Bharatiya Jurisprudence, the Rule of Law owes its origin in one of the oldest
Upanishad i.e. Brihadaranyaka Upanishad around 7th - 6th century BCE.9 In the
Brihadaranyaka Upanishad, there is a sloka (stated later in this article) that emphasizes the
importance of Dharma/Law which can be interpreted as an early form of the Rule of Law.

Dr. S. Radhakrishnan in his work, ‘The Principal Upanishads’ 10 observes that “Even
kings are subordinate to Dharma, to the Rule of Law.” Here, Dr. S. Radhakrishnan interpreted
Law into Dharma i.e. It was the Rule of Dharma and Dharma was supreme to all, unlike
Austin's theory of command of sovereign where king/ruler is supreme.

In the context of Bharatiya Jurisprudence, to understand the Rule of Dharma before, it

is necessary to understand Dharma first.

The Bharatiya Jurisprudence, known as the Vyavahara Dharmasastra, is intricately

intertwined with the concept of Dharma as elucidated in the Vedas, Puranas, Smritis, and other
relevant literary sources. The term ‘Dharma’ holds significant meaning in the Sanskrit
language, including a broad range of concepts and principles. There is no equivalent term in

8
Id. at 9.
9
Swami Madhavananda (ed.), The Brihadaranyaka Upanishad: With the commentary of Shankaracharya 1:4:14
(Advaita Ashrama, Almora, 3rd edn., 1950).
10
S Radhakrishnan, The Principal Upanishads 170 (George Allen and Unwin Ltd, 1953).

3
any other linguistic system. Attempting to provide a definition for the aforementioned term
would prove to be fruitless. The phenomenon can only be elucidated. The term encompasses a
diverse range of interpretations. Several of them might facilitate our comprehension of the
breadth of that phenomenon. The term ‘Dharma’ encompasses various meanings, including
justice (Nyaya), what is morally right in a specific situation, religious principles, righteous
conduct, acts of kindness towards living beings, acts of charity or almsgiving, inherent qualities
or attributes of living beings and objects, obligations or duties, legal norms and customary
practices with legal validity, as well as a legitimate royal decree (Rajashasana).11

As stated in the Nirukta Vedanga, the word ‘धर्म’ (Dharma) is derived from the ‘धृ’
root, which means that which is to be held, to nourish, to uphold, to sustain, and to protect. The
word ‘धर्म’ acquires its grammatical form by adding the suffix 'र्न्’ which comes from the root
'धृञ्-धारणे' in the अतिस्तुसुहुसृधृतििुभायोपतियतिनोभ्यो र्न् ॥१-१२७॥।12

According to Max Muller, Dharma is the Indian manifestation of natural law. In

ancient times, individuals embraced Dharma as a guiding principle for their conduct and self-
governance. Throughout the period, there has been a correlation between Dharma and religion.
The Dharma, as expressed in the Sanskrit language, represents the legal and moral principles
of natural law. It is more obvious and perceptible than the constrained presentation of religious
principles, which occasionally has limitations due to narrow-minded perspectives. Therefore,
it is not imperative for Dharma to be exclusively associated with or seen solely as a religious
concept. It extends beyond the present time and encompasses the fulfillment of responsibilities
and the transmission of knowledge to future generations. The Dharma is primarily linked to its
literal interpretation, which pertains to righteousness.13

The judgment of Shri A.S. Narayana Deekshitulu v. State of Andhra Pradesh14 stands
out as a significant instance in which the Apex Court of India extensively examined the idea
of 'Dharma'. Justice K. Ramaswamy established a correlation between a "higher" or "core"
religion and the notion of Dharma. As per his assertion, the Constitution of Bharat safeguards
Dharma, contrary to conventional religious practices.

He quoted:
Dharma is that which approves oneself or good consciousness or springs from due
deliberation for one’s own happiness and also for the welfare of all beings free from
fear, desire, sense of brotherhood, unity, cherishing good feelings, and friendship
for the integration of Bharat. This is the core religion to which the Constitution
accords protection.

11
Justice M. Rama Jois, Legal and Constitutional History of India: Ancient, Judicial and Constitutional System
3 (LexisNexis Publication, 1st edn., 2022).
12
TR Chintamani (ed.), The Unadi Sutra with the vriti of svetavanavasin 1:127 (University of Madras, 1992).
13
Rajpal Leepakshi and Mayank Vats, “Dharma and the Indian Constitution” Christ University Law Journal 63-
64 (2016).
14
Shri A.S. Narayana Deekshitulu v. State of Andhra Pradesh (1996) 9 SCC 548.

4
He further added,
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.
It was stated that Dharma is distinct from religion.

Also, we find the reference in the constituent assembly debate where Shri H. V.
Kamath15 (C. P. & Berar: General) asserts “That ‘Dharma’, Sir, must be our ‘Religion’.
‘Dharma’ of which the poet has said: Yenedam dharyate jagat (that by which this world is
supported.)”

The meaning of Dharma is also expounded upon throughout the Mahabharata. When
Yudhistira inquiries about the significance and extent of Dharma, Bhishma responds16:

िादृशोऽयर्नुप्रश्नो यत्र धर्मः सुिुर्मभः ।

िु ष्करः प्रतिसंख्यािुं ित्केनात्र व्यवस्यति ॥ ९
Meaning: युधिधिर ! तुम्हारा यह धिश्चला प्रश्न भी ऐसा ही है। इसके अिुसार िर्म के स्वरूप का धििेचि
करिा या सर्झिा बहुत कधिि है। इसीधलये उसका प्रधतपादि करिा भी दु ष्कर ही है। अतः िर्म के धिषय
र्ें कोई धकस प्रकार धिश्चय करे ।

प्रभवार्ामय भूिानां धर्मप्रवचनं कृिर्् ।

यः स्यात्प्रभवसंयुक्तः स धर्म इति तनश्वयः ॥ १०
Meaning: प्राधियोों के अभ्युदय और कल्याि के धलये ही िर्म का प्रिचि धकया गया है। अतः जो इस
उद्दे श्य से युक्त हो अर्ामत् धजससे अभ्युदय और धिः श्रेयस धसद्ध होते हो, िही िर्म है। ऐसा शास्त्रिेत्ताओों
का धिश्चय है।

धारणाद्धर्मतर्त्यािु धमर्ेण तवधृिाः प्रजाः ।

यः स्याद्धारणसंयुक्तः स धर्म इति तनश्चयः ॥ ११
Meaning: िर्म का िार् ‘िर्म’ इसधलये पडा है धक िह सबको िारि करता है - अिोगधत र्ें जािे से बचाता
और जीिि की रक्षा करता है। िर्म िे ही सारी प्रजा को िारि कर रखा है; अतः धजससे िारि और पोषि
धसद्ध होता हो, िही िर्म है। ऐसा िर्मिेत्ताओों का धिश्वय है।

Bhisma has rightly said that defining Dharma poses considerable challenges. It is
difficult to define it in a single definition because of its wide variety of meanings. Dharma has
been expounded for the welfare and upliftment of all beings. Hence, one could assert that which
leads to the upliftment and ultimate good, is Dharma. It upholds everything—it protects from

15
Constituent Assembly Debates on December 06, 1948 available at:
http://library.bjp.org/jspui/handle/123456789/136 (last visited on August 25, 2024).
16
Mahabharata Shanti Parva 109:9-11 (Geeta Press, Gorakhpur, 2013).

5
falling into degradation and preserves life. Dharma alone has sustained all beings; therefore,
that which provides sustenance and support is Dharma.

1. A BASIC UNDERSTANDING OF DHARMA

1. The wide variety of meanings of Dharma

The various ancient Bharatiya sources define the term Dharma that encompasses a
diverse range of meanings and prove how Dharma is not equivalent to any religion.

Mahanarayana Upanishad states:

धर्ो तवश्वस्य जगिः प्रतिष्ठा र्ोके धतर्मष्ठ प्रजा

उपसपमन्ति धर्ेण पापर्पनुिति धर्े सवं प्रतितष्ठिं
िस्माद्धर्ं परर्ं विन्ति ॥ ७॥ 17
Meaning: िर्म सम्पूिम धिश्व और जगत की प्रधतिा है। सोंसार र्ें िर्मधिि लोग िर्म के द्वारा ही उन्नधत करते
हैं, िर्म से पाप दू र होता है , और सब कुछ िर्म र्ें ही प्रधतधित है। इसधलए िर्म को ही सिोच्च कहा जाता
है।
“Dharma (righteousness) is the support of the whole universe. All people draw near a person
who is fully devoted to Dharma. Through Dharma a person chases away sın. All are supported
by Dharma. Therefore, they say that Dharma is the supreme means of liberation.” 18

The word Dharma (righteousness) is extolled here as the foundation of humanity for
all living beings. When the strong oppress the weak, for the latter the only protection is an
appeal to Dharma. In a society such an appeal becomes successful only when the Dharma of
that society is guarded by a sovereign who is himself Dharmistha. Again Dharma, in the form
of prāyaścitta or expiation, cleanses the transgressor of the moral law, and in the shape of
danda or punishment, it purifies the guilty who violate the social law. So, Dharma is praised
here as the support of all. Here Dharma comes close to justice.

Another sloka in Mahanarayana Upanishad states:

धर्म इति धर्ेण सवमतर्िं पररगृहीिं ।

धर्ामन्नातिि॑िुश्वर॒ िस्माि॑द्धर्ें रं र्िे ।।६।। 19
Meaning: कुछ लोग र्ािते हैं धक शास्त्रोक्त कतमव्य ही र्ोक्ष का सािि है । शास्त्रोों द्वारा धििामररत कतमव्योों
के पालि से ही सर्स्त सोंसार को एक सार् बाोंिे रखा जाता है। शास्त्रोों द्वारा धििामररत कतमव्योों का पालि
करिे से अधिक कधिि कुछ भी िहीों है । इसधलए, सिोच्च कल्याि के सािक शास्त्रोक्त कतमव्य र्ें आिोंद
पाते हैं।

17
Swami Vimalananda (ed.), Mahanarayana Upanishad 79:7 (Advaita Ashrama, 1968).
18
Ibid.
19
Id. at 78:6.

6
“Some consider that scriptural duty is the means of liberation. By the performance of scriptural
duties all the world is held together. There is nothing more difficult to practice than the duties
ordained by the scriptures. Therefore, seekers of the highest good find delight in the scriptural
duty.” 20
Here, Dharma is defined in terms of Duty. By fulfilling one's own duties, the rights of
all may be protected and hence the world is held together.

Jaimini in his Mimamsa Sutra states:

चोिनार्िणोऽर्ो धर्मः ॥ 21
Meaning: िर्म िह है , जो िाोंछिीय होते हुए िैधदक आज्ञाओों द्वारा धिदे धशत (या धसखाया) धकया जाता
है।
“Dharma or Duty is that which, being desirable, is indicated (or taught) by vedic injunction.”
22

The Purva-Paksa admits that Dharma can be defined as that desirable thing which is
mentioned or laid down by Vedic Injunctions; that is to say, that which the Vedic injunction
lays down as leading to a desirable end is Dharma; and from this it also follows that the Vedic
Injunction is the sole means of knowing Dharma. Thus, then Dharma having been duly
defined, and a valid and trustworthy means of knowing it being found available, it cannot be
rejected as a nonentity.

In Mahabharata Karna Parva:

धारणाद्धर्मतर्त्याहुः धर्ो धारयि प्रजाः ।

यस्याद्धारणसंयुक्तं स धर्म इति तनश्चयः ॥ 23
Meaning: िर्म प्रजाओों को िारि करता है , िारि करिे के कारि उसे िर्म कहते हैं , जो िारि- प्राि
रक्षा से युक्त हो िही िर्म कहलाता है। यही शास्त्रोों का धिश्चयपूिमक कहिा है। 24

Here, the essence of Dharma lies in upholding the beings; it is called Dharma because it
sustains. That which is associated with the protection of life is called Dharma. Dharma ensures
the protection of the rights of beings.

Manusmriti states:

तवद्वन्तभः सेतविः सन्तभतनमत्यर्द्वे षरातगतभः ।

हृियेनाभ्यनुज्ञािो यो धर्मस्तं तनबोधि ॥ 25

20
Ibid.
21
Ganganath Jha (ed.), The Purva Mimamsa Sutra of Jaimini 1:1:2 (The Panini office Bhuvaneswari Asrama,
1916).
22
Ibid.
23
Damodar Satvalekar (ed.), Mahabharata Karna Parva 49:50 (Swadhyaya Mandal, 1973).
24
Ibid.
25
Ganganath Jha (ed.), Manusmriti: With the 'Manubhasya' of Medhatithi 2:1 (Motilal Banarsidass, 1920).

7
Meaning: रागद्वे षरधहत िाधर्मक पण्डितोों िे धजसको सदा सेिि धकया और हृदय से र्ुख्य जािा, उस िर्म
को तुर् सुिो।
“Learn that Dharma, which has been ever followed by, and sanctioned by the heart of, the
learned and the good, who are free from love and hate.”26
Here, this sloka implies that one should perform own Dharma which is independent of
any emotional outcome. A duty has to be performed by being because it has to be performed.
The obligation comes from within itself rather than any coercive means.

After having a comprehensive understanding of Dharma through various sloka, it can

be well said that Dharma is not equivalent to religion. In the words of Dr. Raghu Vira “The
fact is that Dharma never meant and can never mean religion. I think the word ‘Panthe’ may
properly be translated as Religion but I do not think that Religion can ever be taken to connote
Dharma. But the Englishmen made a deliberate use of this for their own ulterior purposes.” 27
Therefore, Dharma can be embraced by any person belonging to any religion, whether
Hindu, Muslim, Christian, Jew, Parsi, etc. Dharma is the whole basis of our social framework.
Dharma is the law of social well-being.

2. Origin and Sources of Dharma

The Veda, in its entirety, serves as the fundamental origin of Dharma.28 Additionally,
the conscientious remembrance (Smriti) of virtuous individuals who possess knowledge of the
Veda, the conduct of morally upright and knowledgeable individuals (Sadachara), and their
inner conscience.29

वेिोऽन्तिर्ो धर्मर्ूर्ं स्मृतिशीर्े च ितद्विार्् ।

आचारश्चैव साधूनार्ात्मनस्तुतिरे व च ॥ 30
Meaning: सोंपूिम िेद िर्म का र्ूल है, और स्मृधत ि शील (आचरि) भी उसे जाििे िालोों के धलए िर्म का
आिार हैं। सािुओों का आचरि और अपिी आत्मा की तुधि भी िर्म के अोंग हैं।

A. Vedas

The Vedas, specifically the Rigveda, the Yajurveda, the Samaveda, and the
Atharvaveda, hold a preeminent position as the primary sources of Dharma.

यः कतश्चि् कस्य तचि् धर्ो र्नुना पररकीतिमिः ।

स सवोऽतभतहिो वेिे सवमज्ञानर्यो तह सः ॥ 31

26
Ibid.
27
Constituent Assembly Debates on November 19, 1949 available at:
http://library.bjp.org/jspui/handle/123456789/136 (last visited on August 25, 2024).
28
Supra note 25 at 2:6.
29
Ibid.
30
Ibid.
31
Supra note 25 at 2:7.

8
Meaning: जो भी धकसी का िर्म र्िु द्वारा िधिमत धकया गया है , िह सब िेद र्ें कहा गया है , क्ोोंधक िेद
सिमज्ञािर्य है।
अर्मकार्ेष्वसक्तानां धर्मज्ञानं तवधीयिे ।
धर्ं तजज्ञासर्ानानां प्रर्ाणं परर्ं श्रुतिः ॥ 32
Meaning: अर्म और कार् र्ें आसक्त ि होिे िालोों के धलए िर्म का ज्ञाि स्थाधपत धकया जाता है। जो िर्म
को जाििे की इच्छा रखते हैं, उिके धलए श्रुधत सिोच्च प्रर्ाि है।

The primary source of authority for acquiring knowledge of the Dharma is the
revelation known as Sruti, specifically referring to the Vedas.

B. Smritis
The 'Smritis', authored by learned scholars of the four Vedas, serves as a significant
secondary foundation of Dharma due to its exceptional virtues.33 The term ‘Smriti’ is
synonymous with Dharmashastra.

There is a total of eighteen primary Smritis or Dharmashastra.

र्न्वतत्रतवष्णुहारीि याज्ञवल्क्योऽतिराः । यर्ापस्तम्बसम्विामः कात्यायनबृहस्पिी॥

पराशरव्यासशङ् ितर्न्तििा ििगौिर्ो। शािािपोवतशष्ठश्च धर्मशस्त्रयोजकाः ॥ 34
The most significant texts are those authored by Manu, Yajnavalkya, and Parasara. The
remaining fifteen individuals are identified as Vishnu, Daksha, Samvarta, Vyasa, Harita,
Satatapa, Vasishtha, Yama, Apastamba, Gautama, Devala, Sankha-Likhita, Usana, Atri, and
Saunaka.

Manu states:

या वेिबाह्ाः स्मृियो याश्च काश्च कुदृियः ।

सवामस्ता तनष्फर्ाः प्रेत्य िर्ोतनष्ठा तह िाः स्मृिाः ॥ 35
Meaning: जो स्मृधत िेदर्ूलक िहीों हैं, जो िैधदक दे ि-यज्ञ आधद को झूिा बतािे िाले ग्रन्थ हैं , उि सबको
धिष्फल और िरक गधत दे िे िाले र्ाििा चाधहए ।
The scriptures that are considered 'revealed' but are not part of the Veda, together with all the
erroneous theories, are deemed to be futile, even if they are thoroughly developed, as they have
been proclaimed to be based on ignorance.36

The authenticity of smritis is dependent upon their compatibility with the Vedas, a
principle that also applies to the natural world. The Smritis that are in contradiction to the
Vedas are considered to be invalid.

32
Supra note 25 at 2:13.
33
Supra note 30.
34
Yajnavalkya Smriti 1:4, 1:5 (Maharishi University of Management).
35
Supra note 25 at 12:95.
36
Ibid.

9
 C. Sadachara

Sadachara is identified as the third source of Dharma. The term pertains to the practices
and traditions observed by individuals of moral excellence. Sadachara refers to the exemplary
behavior exhibited by knowledgeable academics of the Vedas.

सरस्विीदृशद्वत्योिे वनद्योयमििरर्् ।
िं िे वतनतर्मिं िे शं ब्रह्माविं प्रचििे ॥ 37
Meaning: सरस्वती और दृषद्वती इि दे ि िधदयोों के बीच जो दे श है उस को 'ब्रह्माितम' कहते हैं।
िन्तस्मन् िे शे य आचारः पारम्पयमक्रर्ागिः ।
वणामनां सािरार्ानां स सिाचार उच्यिे ॥ 38
Meaning: धजस दे श र्ें, परों परा से, जो आचार चला आता है , िही िगों का और सङ्कीिम जाधतयोों का
'सदाचार' कहा जाता है ॥
Brahmavarta, as referred to by the sages, is the sacred territory situated amidst the divine rivers
Sarasvati and Drishadvati, believed to have been bestowed by the gods. The practice that has
been traditionally transmitted through generations among the four varnas and the mixed races
of that region is referred to as the ethical behavior of individuals of high moral character
(Sadachara).

D. Inner Conscience

Finally, the fourth source of Dharma pertains to an individual's intrinsic sense of

contentment. The inquiry emerges as to whether the pursuit of soul-satisfaction in one's work
may be seen as Dharma for all individuals. The response is negative. Dharma refers to the
work undertaken by scholars who possess virtuous and pure souls, adhering to the principles
outlined in the Vedas. Such individuals engage in activities that align with their own soul's
contentment, well-being, and affection.39

Manu through various sloka explained the fourth source of Dharma.

तवद्वन्तभः सेतविः सन्तभः - तनत्यर्द्वे षरातगतभः ।

हृियेनाभ्यनुज्ञािो यो धर्मस्तं तनबोधि ॥ 40
Meaning: रागद्वे षरधहत िाधर्मक पण्डितोों िे धजसको सदा सेिि धकया और हृदय से र्ुख्य जािा, उस िर्म
को तुर् सुिो।
“Learn that Dharma, which has been ever followed by, and sanctioned by the heart of, the
learned and the good, who are free from love and hate.” 41

37
Supra note 25 at 2:17.
38
Supra note 25 at 2:18.
39
Supra note 30.
40
Supra note 25 at 2:1.
41
Ibid.

10
 Here, this sloka implies that one should perform own Dharma which is independent of
any emotional outcome. The inner conscience of being tells what is right and what is wrong. A
duty has to be performed by being because it has to be performed. The obligation comes from
within itself rather than any coercive means.

एकोऽतप वेितवि् धर्ं यं व्यवस्येि् तद्वजोत्तर्ः ।

स तवज्ञेयः परो धर्ो नाज्ञानार्ुतििोऽयुिैः ॥ 42
Meaning: जो धद्वजोत्तर् (श्रेि ब्राह्मि) िेदोों को जाििे िाला है , िह धजस िर्म का धििमय करता है , िही
परर् िर्म सर्झा जािा चाधहए, ि धक हजारोों अज्ञाधियोों द्वारा कहा गया।
The authoritative pronouncements of a knowledgeable Brahmana well-versed in the Veda
should be regarded as the highest legal authority, but the proclamations made by numerous
ignorant people hold no such legal force.43

यि् सवेणेच्छति ज्ञािुं यन्न र्ज्जति चाचरन् ।

येन िुष्यति चात्मास्य िि् सत्त्वगुणर्िणर्् ॥ 44
Meaning: धजससे ज्ञाि प्राप्त करिा चाहे , धजसको करिे र्ें लज्जा ि आिे और धजस कर्म से र्ि प्रसन्न
सन्तुि रहे, उिको सत्त्वगुि का लक्षि र्ाििा चाधहए ।
When an individual desires to comprehend an action in its entirety, without experiencing any
sense of shame and with a feeling of contentment within their heart, that action can be identified
by the attribute of ‘Sattva’.45

िर्सो र्िणं कार्ो रजसस्त्वर्म उच्यिे ।

सत्त्वस्य र्िणं धर्मः श्रैष्ठ्यर्ेषां यर्ोत्तरर्् ॥ 46
Meaning: तर् का कार्, रज का अर्म और सत्त्व का िर्म ये र्ुख्य लक्षि हैं। इिर्ें कर् से अगला अगला
श्रेि र्ािा जाता है।
The characteristic that sets ‘Tamas’ apart is pleasure. The concept of wealth is associated with
the quality of ‘Rajas’, while Spiritual Merit is identified as the defining characteristic of
‘Sattva’. It is crucial to acknowledge that each successive attribute is seen as superior to its
preceding counterpart.47

The analysis provides evidence supporting the notion that only ‘Sattva’ acts are capable
of bringing bliss or contentment to the soul. Therefore, the presence of Dharma can be inferred.

3. Factors contributed to evolution of Dharma

42
Supra note 25 at 12:113.
43
Ibid.
44
Supra note 25 at 12:37.
45
Ibid.
46
Supra note 25 at 12:38.
47
Ibid.

11
Manu asserts that No human action can be exempt from desire; every action undertaken by a
person is driven by the impetus of desire.

अकार्स्य तकया कातचदृश्यिे नेह कतहमतचि् ।

यद्यन्तद्ध कुरुिे तकतश्चि् ित्तत्कार्स्य चेतििर्् ॥ 48
Meaning: सोंसार र्ें कोई कर्म धबिा इच्छा के होते िही दे खा गया है।

In the aforementioned sloka, Manu expounds upon the examination of the inherent
human tendency, asserting that the impulse driving every action undertaken by an individual
is rooted in his or her desire, commonly referred to as Kama. The inherent quality of any human
being is an intrinsic characteristic. Then the next question is: What are the natural desires of
man? The natural desire of individuals was discovered to be the pursuit of both sexual and
emotional gratification, as well as material gain, commonly referred to as Artha. Vatsayana
provides an elucidation of Artha as encompassing tangible assets such as gold, livestock, and
agricultural produce, as well as intangible resources like education and wisdom that facilitate
the acquisition of prosperity. Therefore, the pursuit of Kama is thereafter followed by the
pursuit of Artha.

Moreover, it has been discovered that the inclination (kama) of individuals can also be
influenced by other innate emotions, such as anger (krodha), passion (moha), greed (lobha),
infatuation (mada), and hostility (matsarya). The six natural impulses, known as arishadvarga,
were regarded as adversaries to human beings. If left unchecked, these impulses might incite
individuals to harbor malicious thoughts in order to satisfy their personal ambitions, leading
them to inflict harm on others. Manu elucidated the underlying factors contributing to all
private and public harms resulting from the actions of one individual against another. The
origin of all illicit activities perpetrated by individuals can be attributed to the natural instincts
towards material gratification, commonly referred to as desire (Kama). This pursuit of material
pleasure (Artha) subsequently fosters a clash of interests among individuals, hence leading to
conflicts.49

Ultimately, the Dharma, or ethical principles governing moral behavior, emerged as a

resolution to the recurring dilemma resulting from innate human instincts.

The Trivarga, comprising the three-fold principles of Dharma, Artha, and Kama, was
established with the intention of promoting the well-being and contentment of individuals.
Additionally, a fourth ideal known as Moksha, which encompasses the pursuit of everlasting
bliss, was also prescribed. The rationale behind the establishment of the three-fold ideals was
to emphasize that the pursuit of material pleasure (Artha) should only be indulged in
accordance with Dharma rather than in any other manner. Moreover, if an individual holds
Moksha as an ideal, it would also exert an influence on their adherence to Dharma within the
context of their worldly existence.

48
Supra note 25 at 2:4.
49
Supra note 11 at 5.

12
 Based on extensive research and contemplation, the esteemed seers have proclaimed
that the regulation of desire (referred to as Kama) for all worldly and material pleasures (known
as Artha), as well as desires stemming from anger, greed, passion, infatuation, and enmity,
must be governed by established principles rather than relying solely on the personal fortitude
or frailty of individuals. Failure to do so will inevitably result in perpetual conflict, chaos, and
the subsequent deprivation of happiness, tranquility, and even the very material pleasures
sought after. The expansion of the rules of Dharma was undertaken with the intention of
including all facets of human existence. Therefore, the whole set of regulations that delineated
appropriate desires to be entertained, as well as the suitable methods and strategies for attaining
desired material pleasures, became collectively referred to as Dharma.50

4. Attributes of Dharma

Dharma is difficult to explain. Many Bharatiya scholars defined the Dharma in their
own way. However, we find different definitions depending on the context in which they are
used. Scholars provide some basic attributes of Dharma for people's convenience. Adoption of
these attributes makes the person ideal and hence called Dharmic. He becomes righteous in his
actions. Some of the attributes that are mentioned in ancient literature include:

धृतिः िर्ा िर्ोस्तेयं शौचतर्न्तियतनग्रहः ।

धीतवमद्या सत्यर्क्रोधो िशकं धर्मर्िणर्् ॥ 51
Meaning: िैयम, क्षर्ा, आत्म-सोंयर्, चोरी ि करिा, शुद्धता, इों धियोों पर धियोंत्रि, बुण्डद्ध, ज्ञाि, सत्य, और
अक्रोि — ये दस िर्म के लक्षि हैं।
(1) Contentment, (2) Forgiveness, (3) Self-control, (4) Abstention from unrighteous
appropriation, (5) Purity, (6) Control of the Sense-organs, (7) Wisdom, (8) Knowledge, (9)
Truthfulness, and (10) Abstention of anger—these are the ten-fold forms of duty/Dharma.52

Generally, these attributes should be observed by all the citizens of this country. But
particularly, all these attributes must be observed by Judicial officers and State officials in order
to establish Nyaya/Justice/Dharma.

अतहंसा सत्यर्स्तेयं शौचतर्न्तियतनग्रहः ।

एिं सार्ातसकं धर्ं चािुवमण्र्येऽब्रवीन्मनुः ॥ 53
Meaning: अधहोंसा, सत्य, चोरी ि करिा, शुद्धता, और इों धियोों पर धियोंत्रि — र्िु िे इिको चारोों ििों के
धलए सोंधक्षप्त रूप से िर्म बताया है।

50
Ibid.
51
Supra note 25 at 6:92.
52
Ibid.
53
Supra note 25 at 10:63.

13
“Ahimsa (non-violence), Satya (truthfulness), Asteya (not coveting the property of others),
Shoucham (purity), and Indriyanigraha (control of the senses) are, in brief, the common
Dharma for all the varnas.” 54
This sloka implies that it is common for every citizen of this country irrespective of
caste, religion, race, sex etc. to observe these attributes (Mahavrat) in their daily life routine to
abide by Dharma.

अक्रोधः सत्यवचनं संतवभागः िर्ा िर्ा ।

प्रजनः स्वेषु िारे षु शौचर्द्रोह एव च ॥ ७ ॥ 55
आजमवं भृत्यभरणं नवैिे सावमवतणमकाः ।
ब्राह्मणस्य िु यो धर्मस्तं िे वक्ष्यातर् केवर्र्् ॥ ८ ॥ 56
Meaning: धकसीपर क्रोि ि करिा, सत्य बोलिा, ििको बॉटकर भोगिा, क्षर्ाभाि रखिा, अपिी ही पत्नी
के गभम से सोंताि पैदा करिा, बाहर-भीतर से पधित्र रहिा, धकसी से िोह ि करिा, सरल भाि रखिा और
भरि-पोषि के योग्य व्यण्डक्तयोों का पालि करिा-ये िौ सभी ििों के धलये उपयोगी िर्म है। ॥ ७-८ ॥ 57
“Being free from anger, Truthfulness, sharing one's wealth with others, forgiveness,
procreation of children from one's wife alone (i.e maintain fidelity) Purity, Absence of enmity,
Maintaining Simplicity, and take care of those who are worthy of being nourished, are the nine
Dharmas of persons belonging to all the varnas.”

This sloka also implies that these attributes are common for everyone for communal
harmony.

वेिाभ्यासस्तपो ज्ञानतर्न्तियाणां च संयर्ः ।

अतहंसा गुरुसेवा च तनः श्रेयसकरं परर्् ॥ ८३ ॥ 58
Meaning: िेदोों का अध्ययि, तप, आत्मज्ञाि, इों धियोों का सोंयर्, अधहोंसा, और गुरु सेिा, — ये सभी परर्
सिोत्तर् र्ोक्षकारक (कल्यािकारी) हैं।
Vedic Study, Austerity, Knowledge, Control of the Senses, Harmlessness, and Service of
Elders—are the best means of attaining the highest good i.e. Dharma.59

Just as the Indian Constitution has fundamental duties for every citizen of this nation,
these are the Mahavrat that must be observed in their daily-life routine so that the citizens do
not deviate from the path of Dharma. Ultimately, the Rule of Dharma would prevail in society.

2. ARTHA AND KAMA SUBJECT TO DHARMA: TRIVARGA THEORY

The proponents of Dharma recognized the significance of fulfilling human desires as a

fundamental component of existence. However, they held the belief that without the regulation

54
Ibid.
55
Mahabharata Shanti Parva, 60:7 (Geeta Press, Gorakhpur, 2013).
56
Id. at 60:8.
57
Id. at 60:7, 60:8.
58
Supra note 25 at 12:83.
59
Ibid.

14
of desires by legal means, unwanted consequences were likely to arise. Hence, it was
universally agreed upon by proponents of Dharma that in order to establish a well-structured
society and ensure the well-being and contentment of its members, the pursuit of material
enjoyment (Kama) and wealth (Artha) must constantly align with and adhere to the principles
of Dharma (Law), without any contradictions.60

िस्माच्छास्त्रं प्रर्ाणं िे कायामकायमव्यवन्तििौ ।

ज्ञात्वा शास्त्रतवधानोक्तं कर्म किुमतर्हाहमतस ।। 61
Meaning: इसधलए, शास्त्र ही प्रर्ाि है कायम और अकायम के धििामरि र्ें। शास्त्र के अिुसार धििामररत
कर्म को जािकर तुम्हें उसे करिा चाधहए।
“Let the shastras be your authority in deciding what you should do and what you should desist
from doing.” 62
It is imperative to adhere to the teachings of the shastras and subsequently align one's actions
properly.

In the same way, citizens of this country adhere to the principles given in the Bharatiya
Constitution. The constitution is the shastra here.

Some individuals argue that the pursuit of Dharma and Artha can lead to the attainment
of well-being and contentment. Alternative viewpoints argue that Artha and Kama possess
superior qualities. Alternatively, some individuals assert that Dharma is the most superior.
There are individuals who assert that the attainment of Artha is the exclusive means of
achieving bliss.63

However, it is argued that the combination of Dharma, Artha, and Kama (referred to as
Trivarga) collectively contributes to the attainment of well-being and contentment.64

Similarly, The Golden Triangle of the Indian Constitution established in the Maneka
Gandhi case65—comprising Article 14 (Right to Equality), Article 19 (Right to Freedom), and
Article 21 (Right to Life and Personal Liberty) —can be related symbolically to Dharma,
Artha, and Kama.

Article 14 embodies the principle of Dharma by ensuring equality before the law and
equal protection of the laws. It prohibits arbitrary state actions and ensures that every individual
is treated justly, upholding the moral and ethical foundation of society. Article 19 guarantees
freedom of speech, expression, movement, profession, and association, allowing individuals to
pursue their Artha or material goals. Article 19(1)(g) allows the citizen to practice any
profession, or to carry on any occupation, trade or business. This clearly shows the pursuance

60
Supra note 11 at 5.
61
Swami Mukundananda (ed.), Bhagavad Gita 16:24 (Westland, 2021).
62
Ibid.
63
Supra note 11 at 6-7.
64
Ibid.
65
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

15
of Artha. This freedom provides individuals the space to achieve economic and social
prosperity within the framework of a democratic society. Article 21, which guarantees the right
to life and personal liberty, ensures that individuals have the right to live with dignity, pursue
personal happiness, and enjoy the Kama aspect of life, provided it is in accordance with the
law. It safeguards the individual's personal freedoms and protects their ability to lead a fulfilling
and meaningful life. (Authors' own interpretation).

Just as Dharma, Artha, and Kama together aim to balance different aspects of human
existence, the Golden Triangle of the Constitution ensures a balance between individual
freedoms, equality, and justice.

To have a deep understanding, let's have a look at what our ancient sources stated.
Manu states:

धर्ामर्ामवुच्यिे श्रेयः कार्ार्ौ धर्म एव च ।

अर्म एवैह वा श्रेयन्तस्त्रवगम इति िु न्तितिः ॥ २२४ ॥ 66
Meaning: कोई अर्म और िर्म को, कोई कार्, अर्म को, कोई अर्म को, कोई िर्म को ही अच्छा र्ािते हैं।
पर िर्म, अर्म और कार् इि तीिोों का आचरि करिे से भला होता है-यह िर्मशास्त्र की आज्ञा है।
पररत्यजेिर्मकार्ौ यौ स्यािां धर्मवतजमिौ ।
धर्ं चाप्यसुिोिकं र्ोकसङ् क्रुिर्ेव च ॥ १७६ ॥ 67
Meaning: िर्म धिहीि अर्म और कार् को त्याग दे िा चाधहए। धजस िर्म के आचरि से लोक र्ें धिोंदा हो,
उसे भी त्यागिा चाधहए।
Nevertheless, it is imperative to renounce the pursuit of desire (Kama) and material gain
(Artha) when such pursuits are in conflict with the principles of Dharma.

In Vatsayana's Kamasutra, the author proceeds to elucidate the significance of Dharma, Artha,
and Kama.
एषां सर्वाये पूवमः पूवो गरीयान् ॥ १४ ॥ 68
Meaning: िर्म, अर्म और कार् के सर्ुदाय र्ें उत्तर से पूिम पूिम श्रेि है , अर्ामत् कार् से अर्म श्रेि है और
अर्म से िर्म श्रेि है ॥ १४ ॥
Out of Dharma, Artha, and Kama, each preceding one is superior to the following. 69

This suggests that it is essential for the appropriate methods of attaining Artha, which
refers to worldly prosperity and pleasures, to take precedence over the desire for such pursuits
(Kama). Additionally, Dharma should regulate both the desire for pleasure (Kama) and the
methods employed to acquire material wealth (Artha). Consequently, all the literary
compositions concerning Dharma encompassed a set of mandated principles governing moral

66
Supra note 25 at 2:224.
67
Supra note 25 at 4:176.
68
Dr. Ramananda Sharma (ed.), Kamasutra 1:2:14 (KrishnaDas Academy, Varanasi, 2001).
69
Ibid.

16
behavior, the adherence to which was seen as essential for the well-being of both the individual
and society.

In short, the successful completion of the Dharma test was a prerequisite for Artha and
Kama. The Trivarga doctrine governed ancient Bharatiya society. Significance was attributed
to the concept of Dharma, also known as duty, and it was voluntarily assumed by both
individuals and society. As a result, individuals were adhering to the principles of Dharma,
rendering any external authority to enforce compliance with laws unnecessary. Members of the
society were obligated to demonstrate mutual respect for one another's vested rights.

The Golden Triangle forms the constitutional bedrock for the Rule of Law, just as
Dharma, Artha, and Kama provide a philosophical framework for a balanced and harmonious
life in Bharatiya thought.

In this sense, both the Golden Triangle and the Trivarga of Dharma, Artha, and Kama
seek to create a society where justice, freedom, and well-being are in harmony.

3. RULE OF LAW AND RULE OF DHARMA

After having a broad understanding of Dharma throughout this paper, now it is

meaningful to discuss the Rule of Law developed by Western Jurisprudence and Rule of Law
(Dharma) developed by Bharatiya Jurisprudence.

First, let's discuss what Greek thought and western jurisprudence contributed to the
Rule of Law.

Around 350 BCE, Aristotle, the famous Greek philosopher, in his work ‘Politics’ 70
asserted that laws should govern the state, rather than the whims of individual rulers. He also
stressed that the law should be applied universally to all citizens, ensuring fairness and equality.

In 1215, King John of England signed the Magna Carta, which limits royal authority
and establishes the principle that the monarch is subject to the law. This was an early
recognition of the rule of law in Western Jurisprudence.71

During the 17th century, Sir Edward Coke, an influential English jurist, is generally
credited with developing the modern concept of the rule of law. In the case of Prohibitions del
Roy 72 (1607), he declared even the King was subject to the law. Furthermore, in 1610, In Dr.

70
Aristotle, Politics (Heinemann, 1932).
71
Jesus Fernandez Villaverde, “Magna Carta, the rule of law, and the limits on government” 47 International
Review of Law and Economics 22-28 (2016).
72
Prohibitions del Roy (1607) 12 Co Rep 63.
Facts of the case: The case arose during the reign of King James I, focusing on the limits of royal power in
judicial matters. A property dispute was brought before the Court of Star Chamber, which the King sought to
prohibit by issuing a royal prohibition. Sir Edward Coke, Chief Justice of the King’s Bench, opposed the King's

17
Bonham’s Case, 73 Coke suggests that common law can void parliamentary statutes that are
unjust or unreasonable, an early expression of judicial review and the supremacy of law over
governmental authority. This idea laid the foundation for constitutionalism in England.

And finally, in 1885, A.V. Dicey, a British constitutional theorist, in his work
‘Introduction to the Study of the Law of the Constitution’ 74, identified three key principles of
the rule of law: Supremacy of Law, Equality before the Law, and Predominance of Legal Spirit.
This principle became foundational to the understanding of constitutional law in Britain and
had significant influence on the development of constitutional systems in democratic countries.

This is how the Rule of Law was developed and adopted by most of the modern
democratic States in their constitution.

In contrast, In the Bharatiya Jurisprudence, it is the Rule of Dharma rather than the
Rule of Law developed by Western Jurisprudence. This principle owes its origin in one of the
oldest Upanishad i.e. Brihadaranyaka Upanishad around 7th - 6th century BCE. In the
Brihadaranyaka Upanishad, there is a sloka that emphasizes the importance of Dharma/Law
which can be interpreted as an early form of the Rule of Law. The Upanishad states:

स नैव व्यभवत्तच्छरेयोरूपर्त्यसृजि धर्म ििे ित्क्षत्रस्य ित्रं यद्धर्म- स्तस्माद्धर्ामत्परं नास्त्यर्ो

अवर्ीयान्वर्ीयांसर्ाशंसिे धर्ेण यर्ा राज्ञेवं यो वै स धर्मः सत्यं वै ित्तस्मात्सत्यं बििर्ाहुधमर्म
वििीति धर्म वा बििं सत्यं वििीत्येिद्धयेवैििु भयं भवति ।। 75
Meaning: िह (िर्म) कभी क्षीि िहीों हुआ और उसिे उस उत्तर् स्वरूप को उत्पन्न धकया जो श्रेयस्कर
है। यह क्षधत्रय का िर्म ही उसका क्षधत्रयत्व है, इसधलए िर्म से बढ़कर कुछ िहीों है। यहााँ तक धक कर्जोर
व्यण्डक्त भी िर्म के द्वारा बलिाि से जीतिे की इच्छा रखता है। जो िर्म है, िही सत्य है। इसधलए सत्य बोलिे
िाले को कहा जाता है धक िह िर्म बोलता है, और िर्म बोलिे िाले को कहा जाता है धक िह सत्य बोलता
है। यह दोिोों (िर्म और सत्य) एक ही हैं।
“Yet he did not flourish. He especially projected that excellent form, righteousness (Dharma).
This righteousness is the controller of the Ksatriya. Therefore, there is nothing higher than that.
(So) even a weak man hopes (to defeat) a stronger man through righteousness, as (one
contending) with the king. That righteousness is verily truth. Therefore, they say about a person
speaking of truth, 'He speaks of righteousness,' or about a person speaking of righteousness,
'He speaks of truth,' for both these are but righteousness.” 76

intervention, arguing for judicial independence and the supremacy of the law. The court ruled in favor of Coke,
stating that the King could not interfere with the jurisdiction of the common law courts.
73
Dr. Bonham's Case (1610) 8 Co Rep 113b.
Facts of the case: The case involved Dr. Thomas Bonham, a physician who was fined by the College of
Physicians for practicing medicine without a license. Bonham challenged the legality of the fine imposed by the
College, arguing that the College was acting beyond its authority and that the punishment was unjust. The Court
of Common Pleas, led by Chief Justice Sir Edward Coke, heard the case. The court ruled in favor of Bonham,
asserting that the College’s power to impose fines was excessive.
74
A V Dicey, Introduction to the Study of the Law of the Constitution 120-121 (Macmillan, London, 8th edn.,
1915).
75
Supra note 9.
76
Ibid.

18
 Interpreting the above sloka, The Law holds a position of utmost authority; No entity
surpasses the supremacy of law; The law enforced by the king's authority facilitates the triumph
of the vulnerable over the powerful.

Commenting on the above provision. Dr. S. Radhakrishnan observes “Even kings are
subordinate to Dharma, to the Rule of Law.” 77

Furthermore, Justice Markandey Katju quoted the illustration 78 of Kalhana's

Rajatarangini, a historical chronicle of the kings of Kashmir in 12th Century, where we find an
incident about the eviction of cobbler, a perfect illustration of arbitrary state action to conform
to the Rule of Law.

Lord Tribhuvanaswamy Temple was supposed to be built on the site of cobbler. The
king's officials ordered the cobbler to evict the site. When Chandrapida, a King of Kashmir,
came to know about the fact, protected a charmakar (cobbler) against his own officials. The
king says:

तनयम्यिार्् तवतनर्ामणं यि् अन्यत्र तवधीयिार्् पभूमतर् अपह्रण सुकृतं कः कर्ंकेि ये द्रिारः सिसिार््
िे धर्े तवनुगणा तक्रयाः वयर्ेव तविधर्श्चि यॉिुम न्यायेण को अघ्वना। 79
Meaning: “Stop the construction, or build the temple elsewhere. Who would tarnish such a
pious act by illegally depriving a man of his land? If we, who are the judges of what is right
and what is not, act unlawfully, who would then abide by the law?”
The cobbler said:
“Just as the palace is to Your Majesty, so is the hut to me. I could not bear its demolition.
However, if Your Majesty asks for it, I shall give it up, seeing your just behavior.”

Then, King purchased it after paying a satisfactory price.

The cobbler said:
राजधर्म अनुरोधेन पवमत्ता ियोतचिा, स्वन्तस्त िुभ्यं तचरं िेया धम्याम वृत्तांि पद्धति िशमयन् ईदृशीह
श्रद्धा श्रद्धे या धर्मचाररणार्। 80
Meaning: “Yielding to another, however low, adhering to the Rajdharma, is the appropriate
course for a King. I wish you well. May you live long, upholding the supremacy of the law.”
In this way, this incident about the eviction of cobbler in the Kalhana’s Rajatarangini is the
perfect illustration of arbitrary state action to conform to the Rule of Law.

77
Supra note 10.
78
Markandey Katju, Facebook post 26 April 2021, available at:
https://www.facebook.com/share/p/c15EBvvZ8nDiWBX2/?mibextid=oFDknk (last visited on September 05,
2024),
Prof. (Dr.) Anurag Deep, ‘Ancient Indian Wisdom, Rule of Law and Supreme Court’ YouTube Lecture 31
August 2024, available at: https://youtu.be/9Vh82T8KmVY?feature=shared (last visited on September 05,
2024).
79
M.A. Stein (ed.), Kalhana's Rajatarangini 59-60 (Motilal Banarsidass, 2017).
80
Id. at 75-77.

19
 In Mahabharata (the ancient era), we find the illustration81 of the vow of lifelong
celibacy (Brahmacharya) of King Shantanu's son, Dev Vrata. King Shantanu wanted to marry
Satyavati, the daughter of a fisherman, but the condition of her father was that his grandson
would succeed to the throne. The king couldn't decide what to do. After seeing his father's grief,
Dev Vrata made the vow of celibacy and would never ascend the throne. By this illustration,
we find that despite being the king, he couldn't compel her father to give his daughter without
the condition. Even the sovereign was not above the law. During that time, people adhered to
the Rule of Law.

The Ramayana, a Hindu epic, is a powerful example of the rule of law, highlighting the
importance of adherence to Dharma (law, duty, and righteousness) over personal desires or
emotions whether it was Lord Rama's acceptance of exile, Bharat's refusal to rule, or Lord
Rama's decision to banish Sita.

The story revolves around King Dasharatha's vow, which he fulfilled to his queen
Kaikeyi, who demanded Rama be made king instead of him. Despite personal motives,
Dasharatha was bound by the principle of fulfilling a vow.

Rama's acceptance of exile is a testament to the rule of law in action, where personal
emotions and desires are secondary to the larger principle of maintaining the sanctity of
promises and upholding Dharma.

एवर्् अस्तु गतर्ष्यातर् वनर्् वस्तुर्् अहर्् िु अिः |

जटा चीर धरः राज्ञः प्रतिज्ञार्् अनुपार्यन् || २-१९-२ 82
Meaning: "Let it be, as you said it. I shall fulfill the king's promise, go to the forest from here
to reside there, wearing braided hair and covered with a hide."

His decision to go into exile was rooted in his belief in Raja Dharma, which dictates
that a king or future king must always set an example by upholding the law, fairness, and
justice. This action reinforces the concept that no one, not even a king or prince, is above the
law.
Bharata's refusal to rule, despite being made king by Kaikeyi's manipulations, further
solidifies the rule of law. Bharata, despite being made king by Kaikeyi's manipulations,
regarded Rama as the rightful ruler and placed Rama's sandals on the throne as a symbol of his
rule.

ििः तशरतस कृत्वा िु पािु के भरिः ििा |

81
Kisari Mohan Ganguly, The Mahabharata (English) Section C (Wisdom Library) available at:
https://www.wisdomlib.org/hinduism/book/the-mahabharata-mohan/d/doc4093.html (last visited on September
05, 2024).
82
K.M.K. Murthy (tr), Valmiki Ramayana, Book II: Ayodhya Kanda, Chapter 19 (Sanskrit Documents)
available at : https://sanskritdocuments.org/sites/valmikiramayan/ayodhya/sarga19/ayodhya_19_frame.htm (last
visited on September 05, 2024).

20
आरुरोह रर्र्् हृिः शत्रुघ्नेन सर्न्तन्विः || २-११३-१ 83
Meaning: Thereafter, keeping the sandals on his head, Bharata delightfully ascended his
chariot along with Shatrughna.

This act further solidifies the concept that rightful authority cannot be usurped, even by royal
decree.

Despite Sita's purity and trials, rumors and doubts began to circulate among the citizens
about her time in Ravana's captivity. This public sentiment posed a significant problem for
Rama, who was duty-bound to uphold the moral integrity of the kingdom and its values. Rama
was bound by Raja Dharma, which required him to prioritize the welfare, trust, and perception
of his subjects over his personal feelings. He believed that a ruler must ensure the faith of the
people in their king's actions and decisions, and that the trust of his subjects in the moral
uprightness of the royal family was crucial for the stability and reputation of the kingdom. In
one of the most difficult decisions of his life, Rama ordered Sita to be exiled to the forest
despite her innocence. This action reflects the harsh reality of the rule of law in ancient times,
where the ruler's personal relationships and feelings were secondary to the expectations of the
kingdom. Rama's painful adherence to Dharma demonstrated that the rule of law, as interpreted
through the lens of public morality and duty, had to take precedence over his personal life.
Ultimately, Rama's decision to banish Sita serves as a profound example of the application of
the rule of law in the Ramayana, illustrating the concept of Raja Dharma, where a ruler must
prioritize the welfare, reputation, and trust of the people over personal feelings, even when it
results in personal tragedy.

In conclusion, the Ramayana highlights the importance of the rule of law in ancient
Bharatiya society, emphasizing the importance of adherence to Dharma, justice, and fairness.

In the classical era, Kautilya, a distinguished Bharatiya scholar and thinker, highlights
the importance of Dharma and emphasizes the ethical foundations essential for establishing
the rule. These ethical principles serve as the core mechanism to safeguard the true essence of
the law.

Chanakya mentions the Rule of Law in his work ‘Arthashastra’:

प्रजासुिे सुिं राज्ञः प्रजानाञ्च तहिे तहिर्् ।
नात्मतप्रयं तहिं राज्ञः प्रजानािु तप्रयं तहिर्् ।
िस्मातन्नत्योन्तििो राजा कुयामिर्ामनुशासनर्् ॥ 84

83
K.M.K. Murthy (tr), Valmiki Ramayana, Book II: Ayodhya Kanda, Chapter 113 (Sanskrit Documents)
available at : https://sanskritdocuments.org/sites/valmikiramayan/ayodhya/sarga113/ayodhya_113_frame.htm
(last visited on September 05, 2024).
84
R P Kangle, The Kautilya Arthashastra Book 1, Chapter 19, Verses 34-35 (Motilal Banarsidass, 2nd
edn.,1972).

21
Meaning: प्रजा के सुख र्ें राजा का सुख, प्रजा के कल्याि र्ें उसका कल्याि धिधहत है। राजा को केिल
उसी को अच्छा िहीों र्ाििा चाधहए जो उसे प्रसन्न रखता है लाभ पहुोंचाता है। राजा को प्रजा के फायदे के
अिुरूप व्यिहार करिा चाधहए।
“In the happiness of his subjects lies the king's happiness, in their welfare his welfare. He shall
not consider as good only that which pleases him but treat as beneficial to him whatever pleases
his subjects.” 85

This sloka underscores that the ruler is duty-bound to uphold justice and the law,
reinforcing the principle of Dharma as the foundation of governance. Chanakya advocated that
a king is not above the law and must be just and fair, ensuring that the legal system is followed
by both rulers and subjects alike, establishing the early notions of the Rule of Law.

Along with this, we find similar illustrations in ancient Bharatiya texts such as
Mahabharata, Ramayan, Smrits, Puranas, Upanishads establishing the notions of the Rule of
Law (Dharma).

Furthermore, it is necessary to understand the term ‘Law’ in the Rule of Law and how
this ‘Law’ is different from ‘Dharma’.

Let’s first try to understand “Law,” not through a purely jurisprudential lens, but in a
popular sense. ‘Law’ is something codified or made by a competent body. For example, in the
United Nations (UN) system, all individuals, institutions, and entities, both public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally
enforced, and independently adjudicated.

In Western philosophy, from the United Nations to individual nations, and from jurists
to laypeople, ‘Law’ primarily refers to “Man-Made Law.” This “Man” could be a king, a
parliament, a dictator, a democratically elected government, a president, or another authority
figure. A key question is how this powerful “Man” is created. The main creator of this so-called
“Man” is the “Contractarian theory,” which describes a contract between the sovereign and the
individual, with mutual considerations. For the king, the consideration is the acceptance of his
supremacy; for the citizen, it is the security provided by the sovereign. The provider is always
powerful, and thus the sovereign holds significant power. In most countries, except for a few
like Bhutan, the sovereign (be it the State, Government, King, dictator, army chief, etc.) is the
provider of everything, and thus, his commands matter. In Austin’s words, “The command of
the sovereign is the law.”86

In contrast, the Bhartiya concept of sovereign and justice differs from that of the West.
Here, the parties to the contract in the “Contractarian theory” are Dharma (Divine) and the
individual. The consideration is simple: you save Dharma, and Dharma will save you and thus

85
Ibid.
86
Dr. Seema Singh, “Judiciary: Rule of Dharma and Rule of Law” 45 Manthan Journal of Social and Academic
Activism 5-10 (2024).

22
the Dharma is sovereign here, unlike in the western thought where the king is sovereign. Here,
the king is merely a representative of Dharma, bound by the command of Dharma, which is
popularly known as the Dharma of the King. In the words of S. Radhakrishnan:
“Much has been said about the sovereignty of the people. We have held that the ultimate
sovereignty rests with the moral law, with the conscience of humanity. People as well as kings
are subordinate to that. Dharma, righteousness, is the king of kings.” 87

Manu's writings strongly emphasize the imperative nature of diligently adhering to the
principles of Dharma. The Dharma serves as a safeguard for individuals who uphold and
defend its principles. The Dharma provides protection to individuals who uphold and safeguard
its principles. Individuals who engage in the act of dismantling or undermining the principles
and teachings of Dharma are themselves subjected to a process of destruction or downfall.
Hence, it is imperative to preserve Dharma in order to avoid the ensuing destruction that may
befall us.88

धर्म एव हिो हन्ति धर्ो रिति रतििः ।

िस्माद्धों न हिव्यो र्ा नो धर्ो हिोऽबधीि् ॥ 89
Meaning: िर्म का लोप कर दे िे से िह उस पुरुष को िि कर दे ता है और िर्म की रक्षा करिे से िह भी
रक्षा करता है। इसधलए िर्म का िाश ि करिा चाधहए धजससे िि िर्म हर्ारा िाश ि करे ।

The notion articulated in this sloka holds great value and significance. The
aforementioned concise statement encompasses the fundamental principle of the Rule of Law.
The conveyed meaning posits that the setting up of a well-organized society is contingent upon
individuals adhering to the principles of Dharma, thus safeguarding Dharma itself.
Consequently, this orderly society, embodying the essence of Dharma, reciprocally upholds
the rights of its constituents. The purpose of the Rules of Dharma was to establish guidelines
for individual behavior with the aim of limiting an individual's rights, freedoms, interests, and
desires to foster the well-being of other individuals within society. Simultaneously, these rules
imposed an obligation on society to ensure the well-being and protection of individuals through
their social and political institutions. In brief, Dharma served as a regulatory framework for
the reciprocal commitments between individuals and society. Hence, it was emphasized that
safeguarding Dharma was advantageous for both the individual and the broader society. Manu
cautions against the destruction of Dharma, emphasizing that such actions may lead to one's
own demise. The maintenance of a ‘State of Dharma’ is crucial for the promotion of peaceful
coexistence and prosperity.90

Therefore, the purpose of man-made law is to ensure the protection of Dharma. This is
why “Yato Dharmastato Jayaḥ” was chosen as the motto of the Supreme Court.

87
Constituent Assembly Debates on January 20, 1947 available at:
http://library.bjp.org/jspui/handle/123456789/136 (last visited on August 25, 2024).
88
Supra note 25 at 8:15.
89
Ibid.
90
Supra note 11 at 8.

23
 The phrase यिो धर्मस्तिो जयः is a recurring expression found in the Mahabharata on
fifteen occasions. It conveys the idea, “Where there is Dharma, there will be victory.”
In Mahabharata - Udyoga Parva, Dhritarashtra to Sanjay:
सवं त्वर्ायिीयुक्तं भाषसे प्राज्ञसंर्िर््।
न चोत्सहे सुिं त्यक्तुं यिो धर्मस्तिो जयः ।। 91
Meaning: िृतरािर सोंजय से कह रहे हैं धक जो कुछ तुर् कह रहे हो, िह धिद्वािोों द्वारा र्ान्य है और ज्ञाि
से पररपूिम है। लेधकि र्ैं अपिे पुत्र दु योिि को छोडिे र्ें असर्र्म हाँ, यद्यधप र्ैं जािता हाँ धक जहााँ िर्म है,
िहीों धिजय होती है।
“Dhritarashtra is replying to Sanjaya saying that whatever you say is recognized by scholars
and is full of wisdom. But I am unable to leave my son Duryodhana, even though I know that
where there is Dharma, that’s where victory lies.”

In Mahabharata - Anushasan Parva, Bhishma told Duryodhana:

उक्तवानन्तस्म िु बुमन्तद्धं र्न्दं िु योधनं पुरा।
यिः कृष्णस्तिो धर्ो यिो धर्मस्तिो जयः ॥ 92
Meaning: र्ैंिे पहले ही उस दु बुमण्डद्ध और र्ोंदबुण्डद्ध दु योिि से कहा र्ा, जहााँ कृष्ण हैं , िहााँ िर्म है , और
जहााँ िर्म है, िहीों धिजय है।
“Where there is Krishna, there is Dharma; where there is Dharma, there is victory.”

This sloka implies the supremacy of Dharma over anyone. Here, Krishna in the Mahabharata
has been symbolized with Dharma. To understand Dharma, it is necessary to read Krishna's
principles and character first.

Recently, individuals ranging from Supreme Court judges to prominent academicians

have questioned the relevance of the Supreme Court’s motto, demanding its removal on the
grounds that it is religious in nature. Such interpretations are deplorable and stem from a lack
of understanding of our own Indic philosophy and an excessive reliance on Western
philosophy. Similarly, Brian Tamanaha, in his work, ‘A Concise Guide To The Rule Of Law’93,
elaborated his concern about the potential for the Rule of Law to turn into Rule by judges or
lawyers. Judges in many systems have become more assertive in their decisions, sometimes
stepping into political matters, particularly when interpreting broad laws like those involving
human rights. This can make judges a target for political attacks, leading to a politicized
judiciary, which reduces the independence of the courts and weakens the Rule of Law. Judges
need to maintain a careful balance, applying the law while recognizing the limited role that
courts should play in the larger political system.94

91
Mahabharata Udyoga Parva, 5:39:7 (Geeta Press, Gorakhpur, 2013).
92
Mahabharata Anushasan Parva, 13:153:39 (Geeta Press, Gorakhpur, 2013).
93
Supra note 2.
94
Ibid.

24
 To understand this conflict of law and Dharma, we need to turn the pages of European
history, where the tension between church and king was evident and escalating, ultimately
leading to the division of Christianity into Catholicism and Protestantism. When crimes were
committed, disputes often arose over whether the perpetrator should be tried under the secular
law of the state or under religious canon law. The thirst for power exacerbated the conflict.
Eventually, roles were divided: In medieval Europe, laws made by secular authorities, such as
kings or rulers, were considered secular law. These laws governed the affairs of the state and
its subjects. Conversely, laws made by the church, particularly the Catholic Church, were
known as canon law, dealing with matters concerning the church, clergy, and religious
practices95.

Canon law is still applicable within the Catholic Church and its institutions worldwide,
including Vatican City, where it serves as the legal system for church governance and matters
related to faith and doctrine.96 This separation made the king the most powerful sovereign, and
his words became the rule of law. In a democracy, the king was replaced by a democratically
elected government, and laws passed by the legislature became the rule of law. However, this
raises a crucial question: In a modern democratic system, where numbers matter for a particular
party to form the government, and most political parties are involved in appeasement to
consolidate their vote bank, does the elected government truly represent the collective will of
the people? Brian Tamanaha had a concern that the Rule of Law is that, by itself, it doesn’t
guarantee democracy, respect for human rights, or just laws. Just because a legal system
follows the Rule of Law doesn’t mean that the laws are good or deserving of obedience. In
situations where the law supports an authoritarian regime, imposes unwanted values on the
people, or is used by one group to oppress another, the Rule of Law can actually reinforce that
oppression. So, while the Rule of Law is necessary for a fair legal system, it’s not enough by
itself.97 Perhaps this is what compelled Rawls to imagine a ‘Veil of Ignorance,’ behind which
lawmakers create laws that are good for all.98 However, we all know this is a hypothetical
situation and not actually possible. This is why many new legislations, instead of resolving
conflicts, create more litigation. If laws themselves are not free from the infirmities of biasness,
how can they establish a true Rule of Law? Brian Tamanaha was cautious about how the Rule
of Law is used in rhetoric. Many abuses have been committed by governments that claim to
uphold the rule of law but don’t actually follow it. The rule of law is a powerful ideal that can
be used by political leaders to justify their actions, even when they are violating the very
principles they claim to support. This undermines trust in the rule of law, and the only solution
is to hold leaders accountable to legal standards and not be deceived by empty promises.99 The
crux of the matter is, if the Rule of Law is based absolutely on man-made laws, then actually
it can never be truly achieved. Rather, the Rule of Law must be based on Dharma which is
deeply rooted in the ancient Bharatiya society.

95
Supra note 86.
96
Ibid.
97
Supra note 2.
98
Supra note 86.
99
Supra note 2.

25
CONCLUSION

The prevailing judiciary, along with certain intellectuals and possibly even Dicey, often
emphasizes the superiority of human intellect. However, human intellect has its limitations. In
contrast, it is the intellect of nature that holds ultimate supremacy. This is why courts
worldwide turn to natural law to address the shortcomings of man-made laws. Concepts such
as natural law, due process, and the law of good conscience are essentially various forms of
Dharma. The Indian Supreme Court’s motto, “Yato Dharmastato Jayaḥ,” reflects this
principle, and the powers granted under Articles 32, 136, and 142 are designed to uphold it. In
essence, Dharma forms the foundation of the basic structure of any Constitution.

In Bharatiya philosophy, Dharma extends the role of the sovereign beyond mere
written laws, assigning duties to protect not only land, animals, birds, rivers, forests, and the
environment but also the entire universe. Dharma plays a crucial role in shaping various
branches of jurisprudence, including environmental jurisprudence, restorative jurisprudence,
compensatory jurisprudence, and animal rights jurisprudence, among others. Therefore,
Dharma represents the ultimate goal, with the judiciary serving as a mechanism to realize it
through the framework of laws.

26
 SPIRITUALITY: THE FOUNDATION OF LAW

Seema Singh

The Supreme Court's motto, "Yato Dharmastato Jayah" (Sanskrit: यतो धम तो जयः ),
originates from the Mahabharata, a Hindu epic, and carries a profound message: "Where there
is Dharma, there will be Victory." This motto embodies the conviction that justice and
righteousness will ultimately succeed and bring about triumph. It stands as a guiding principle,
emphasizing the importance of maintaining moral and ethical values within both the legal
system and society as a whole.

The significance of the motto "Satyameva Jayate" (Sanskrit: स मेव जयते), meaning
"Truth alone triumphs," is rooted in its origin from a mantra in the Hindu scripture Mundaka
Upanishad. On 26 January 1950, coinciding with the day India became a republic, this mantra
was adopted as the national motto. When examining both the slogans "Satyameva Jayate" and
"Yato Dharmastato Jayah," it becomes clear that they are interconnected expressions of the
same fundamental principle.

Certainly, these two mottos underscore the symbiotic connection between truth and
righteousness. "Satyameva Jayate" underscores the fundamental importance of truth,
emphasizing that honesty should be the guiding principle in every facet of life. Simultaneously,
"Yato Dharmastato Jayah" emphasizes the notion that victory and success are achievable only
when one adheres to and follows the path of righteousness, or Dharma.

These two mottos complement each other, illustrating that the victory of dharma is
intricately tied to the prevalence of truth. The establishment of truth and the embrace of
righteousness lay the foundations for justice and triumph. Therefore, these mottos act as
perpetual reminders of the significance of truth, morality, and justice in both personal and
societal contexts.

The mottos "Satyameva Jayate" and "Yato Dharmastato Jayah" declare that the
Supreme Court holds the responsibility of upholding dharma by protecting satya (truth). This
legal philosophy centers on the pursuit of truth to establish righteousness. Unfortunately, it is
often lamentable that the process of determining the meaning of "Satya" to establish "Dharma"
is seldom addressed in the field of legal jurisprudence.

While the mottos underscore the significance of truth and righteousness, they don't
explicitly explore the methodologies used to ascertain truth within the legal system.


Assistant Professor, Campus Law Centre, Faculty of Law, Delhi University. The author is a Member of the
Academic Council, Delhi University and India Policy Foundation. Former Advisor National Commission for
Scheduled Tribes. The author is PhD in Law from Jamia Millia Islamia University, New Delhi.

27
Deciphering the meaning of "Satya" and its implementation in establishing "Dharma" is an
intricate and multi-dimensional undertaking.1

1. LEGAL JURISPRUDENCE & QUEST FOR TRUTH

Legal jurisprudence must indeed, delve into the inquiry of determining the significance
of "Satya" in the pursuit of justice. This requires a comprehensive investigation into evidence,
legal precedents, factual accuracy, logical reasoning, and adherence to principles of fairness.
The court's responsibility is to scrutinize facts, analyze arguments, assess testimonies, and
gauge the overall credibility and reliability of the information presented.

Determining "Satya" demands a thorough and unbiased approach that takes into
account the various perspectives and intricacies involved. This may encompass cross-
examination, expert testimony, forensic evidence, and other investigative methods, all geared
toward unveiling the truth and upholding justice.

In the pursuit of establishing "Dharma," the legal system must consistently strive to
enhance its methods of determining truth, incorporating advancements in technology, research,
and legal scholarship. By fostering open dialogue and rigorous analysis, legal jurisprudence
can more effectively address the crucial question of how to ascertain the meaning of "Satya"
to establish "Dharma."

To grasp the meanings of "Satya" and "Dharma," we can explore the philosophical
traditions of both Greek and Hindu cultures. While these belief systems share some aspects,
they also exhibit fundamental differences. Greek philosophy was rooted in humanism, focusing
on the tangible world and what was perceptible to the senses. In contrast, the Bharatiya (Indian)
system was grounded in spiritualism, acknowledging the existence of a metaphysical realm
beyond the physical world.2

The Greeks placed significant emphasis on the tangible and observable aspects of life,
seeking to comprehend the world through rational inquiry and logical reasoning. Philosophical
frameworks developed by figures like Socrates, Plato, and Aristotle centered on ethics, politics,
and the pursuit of knowledge through observation and analysis of the material world. 3

In contrast, the Bharatiya (Indian) philosophical tradition, deeply rooted in spiritualism,

acknowledged the existence of a higher plane beyond the physical realm. Concepts like "Satya"
(truth) and "Dharma" (righteousness) in Hindu philosophy are intricately linked to this
metaphysical understanding. The pursuit of truth and the establishment of righteousness in the

1
Dr. Eknath Mundhe (ed.), The wisdom of Bharat: An exploration of the Indian knowledge system (Dr. Eknath
Mundhe S. M. Joshi College, Hadapsar Pune-28 Maharashtra India, 2023).
2
available at: https://iep.utm.edu/ancientgreek-philosophy/ (last visited on November 20, 2024).
3
available at: https://wisdomcenter.uchicago.edu/news/wisdom-news/whatdid-socrates-plato-andaristotle-
think-about-wisdom (last visited on November 20, 2024).

28
Bhartiya system encompass not only the material world but also the spiritual and moral
dimensions of existence.

While the Greek and Bhartiya systems diverge in their philosophical foundations, they
both aim to grapple with questions of ethics, morality, and the pursuit of truth. 4 Examining
these varied perspectives can offer valuable insights into the meaning and significance of
"Satya" and "Dharma" within their respective cultural contexts.

Bhartiya (Indian) metaphysics doesn't adhere to a single doctrine but encompasses a

rich diversity of perspectives on the nature of "Being." This diversity is evident in the broad
spectrum of ideas found in ancient texts like the Vedas, as well as in the classical systems of
Hinduism, Buddhism, and Jainism.

The Vedas, an ancient collection of scriptures, contain profound insights and reflections
on the nature of reality, the self, and the cosmos. Within Hinduism, various philosophical
systems such as Advaita Vedanta, Vishishtadvaita, and Dvaita provide distinct perspectives on
metaphysical questions, exploring concepts like Brahman, Atman, and the relationship between
the individual and the universal. 5

Similarly, Buddhism and Jainism, emerging as distinct traditions within the broader
Indian cultural context, also present their unique metaphysical frameworks. These systems
delve into notions such as the impermanence of phenomena, the nature of suffering, the concept
of non-self, and the interconnectedness of all beings.

The diversity in Bhartiya metaphysics reflects the richness and complexity of Indian
philosophical thought, recognizing the existence of multiple ways to understand and relate to
the nature of "Being." Through critical inquiry, dialogue, and the exploration of these diverse
ideas, one can develop a deeper appreciation for the multifaceted nature of Bhartiya
metaphysics and its significance within various philosophical traditions.

2. SANATAN DARSHAN & SATYA

Hindu philosophers primarily delved into metaphysical questions, epistemology,

philosophy of language, and moral philosophy. They established various schools of thought,
each distinguished by its unique approach to understanding reality. However, a common thread
among these schools was their acknowledgment of the Vedas as authoritative scriptures.
Additionally, they shared a belief in the existence of a permanent individual self-known as
ātman, considered an integral part of a broader reality known as Brahman.

4
available at https://iep.utm.edu/modernmorality-ancient-ethics/ (last visited on November 20, 2024).
5
available at: https://www.britannica.com/topic/Vedanta (last visited on November 20, 2024).

29
 The Hindu philosophical tradition encompassed diverse perspectives on metaphysics.
Various schools, including Advaita Vedanta, Vishishtadvaita, and Dvaita, presented unique
interpretations of the nature of reality and the connection between the individual self and the
broader cosmic order.

In the realm of epistemology, another significant area of inquiry, Hindu philosophers

explored questions related to knowledge, perception, and the methods of acquiring valid
understanding. They formulated a range of theories of knowledge, such as pramāṇas (means
of valid cognition), laying the foundation for understanding the nature of truth and the validity
of knowledge claims.

The philosophy of language played a pivotal role in clarifying the dynamics of

communication, meaning, and the correlation between language and reality within the Hindu
philosophical tradition. Philosophers delved into the intricate aspects of language, examining
its capacity to convey truth, while also recognizing its limitations and challenges.

Moral philosophy in the Hindu tradition centered on comprehending ethical principles,

moral duties (dharma), and the pursuit of moral excellence. The teachings of Hindu
philosophers offered guidance on ethical conduct, social responsibilities, and the cultivation of
virtues.

Throughout these philosophical explorations, the concept of ātman held a central

position. In Hindu metaphysics, ātman was acknowledged as an eternal, individual self
intricately linked to the ultimate reality of Brahman. The understanding of the relationship
between ātman and Brahman varied among different schools of thought, with some
emphasizing their identity and others underscoring their distinction while maintaining a
profound interconnectedness.

The diverse nature of Hindu philosophy encompasses a broad spectrum of

metaphysical, epistemological, linguistic, and ethical considerations. These investigations into
the nature of reality and the self-remain a fertile ground for philosophical exploration and
contemplation.

3. SHAḌ DARSHAN, INQUIRY & VALIDATION

Given the diversity of philosophical perspectives within Hinduism, there arose a need
to rigorously establish and validate these views through inquiry. Consequently, logical and
epistemological tools were developed, customized to the specific requirements and beliefs of
individual philosophers. Although more than a dozen schools of thought existed, they are
commonly grouped into six major schools, with this approach often combining several distinct
schools together. These six schools can be organized into three pairs: Sāṅkhya–Yoga, Vedānta–
Mīmāṃsā, and Nyāya–Vaiśeṣika.

30
 The Sāṅkhya and Yoga schools of thought are considered one pair. Sāṅkhya focuses on
the analysis and comprehension of the components of existence, while Yoga emphasizes the
practical application of methods to achieve spiritual realization and union.6

Vedānta and Mīmāṃsā form another pair within the six major schools of thought.
Vedānta delves into the study of the Upanishads, interpreting them as revealing the ultimate
truth of reality and emphasizing the oneness of the individual self (ātman) and the supreme
reality (Brahman). In contrast, Mīmāṃsā focuses on ritualistic practices and the interpretation
of Vedic texts, particularly concerning religious duties and rituals. 7

The final pair comprises Nyāya and Vaiśeṣika. Nyāya is concerned with logical
reasoning and epistemology, offering a systematic approach to the acquisition of knowledge
and valid cognition. Vaiśeṣika explores the metaphysics of the universe, analyzing the nature
of reality through the categorization and classification of different types of substances. 8

Although these six schools of thought are frequently highlighted, it's crucial to
acknowledge that they constitute only a segment of the diverse philosophical panorama within
Hinduism. Each school crafted its distinct perspectives, methodologies, and insights, adding to
the intricate tapestry of the Hindu philosophical tradition.

In addition to their philosophical frameworks, numerous darshana (schools of thought)

within Hindu philosophy have formulated comprehensive methods and practices designed to
facilitate individual liberation. At the core of these darshana is the theory of consciousness.
Yoga, in particular, stands as a valuable tool for elevating one's level of consciousness and
establishing a connection with the supreme divine.

4. SPIRITUALITY & LAW

The diverse darshana within Hindu philosophy all prioritize spiritual life, devotion,
introspection, and meditation on the ultimate reality. These practices are deemed crucial for
spiritual evolution, self-discovery, and achieving liberation (moksha).

Yoga, blending physical and spiritual disciplines, presents a methodical way to cleanse
the body and mind, foster inner awareness, and surpass the confines of everyday consciousness.
Practices like asanas (physical postures), pranayama (breath regulation), concentration, and
meditation aim to reach elevated states of consciousness, facilitating a profound
comprehension of oneself and the divine.

6
available at: https://egyankosh.ac.in/bitstream/123456789/81060/1/Block-5.pdf (last visited on November 20,
2024).
7
available at: https://www.britannica.com/topic/Indian-philosophy/Earlysystem-building (last visited on
November 20, 2024).
8
Analytic Philosophy in Early Modern India, available at: https://plato.stanford.edu/entries/earlymodern-india/
(last visited on November 20, 2024).

31
 In Hindu philosophy, devotion (bhakti) holds immense significance as a potent channel
to commune with the divine. It entails profound love, surrender, and veneration of the ultimate
reality through rituals, prayers, and introspection. Bhakti practices nurture a profound spiritual
bond and a feeling of oneness with the divine.

Additionally, the darshana encourage directing the mind inward through self-reflection,
self-inquiry, and introspection. This practice entails scrutinizing one's thoughts, desires, and
attachments, culminating in self-awareness and the recognition of the authentic nature of the
self.

The practice of focusing the mind through meditation, be it through concentration or

contemplation, holds a key position in the quest for spiritual understanding. By quieting the
mind, individuals strive to move beyond everyday awareness and directly encounter the divine
essence.

Together, the practices and philosophies within Hindu darshana offer a complete
structure for spiritual growth. They seek to elevate consciousness, nurture devotion, and guide
seekers on their path toward self-discovery and merging with the ultimate reality. Within the
framework of Sanatana Dharma (Eternal Truth), humans are perceived beyond mere physical
forms. This philosophy views individuals as embodiments of the entire universe and as beings
of pure consciousness. They traverse multiple existences across diverse realms within the
expansive cosmos, with their core.

The consciousness innate in every person establishes a deep link with the supreme
divine. Through it, one comprehends the dynamic relationship between Satya (truth) and the
essence of Dharma (righteousness). Within Sanatana Dharma, Dharma is acknowledged as the
guiding force that sustains communities and preserves balance in the universe.

Recognizing the vastness of consciousness and its inherent link to the divine,
individuals attain profound insights into the core truths of existence. They grasp that their
essence transcends the confines of their bodies, belonging instead to a larger cosmic harmony.

In this philosophical structure, the quest for Dharma takes precedence. Dharma includes
not just individual moral obligations but also the wider duty to preserve virtue and foster
societal concord. When individuals synchronize their actions with Dharma's principles, they
actively nurture societal welfare and play a role in upholding cosmic equilibrium.

Sanatana Dharma underscores the unity among all beings and the innate divinity within
each person. It promotes a comprehensive perception of human life, surpassing physical
limitations and acknowledging the everlasting essence of consciousness. By adhering to

32
Dharma's principles and fostering this bond with the supreme divine, individuals aspire to
discover their authentic selves and play a role in the broader harmony of the universe.

Within Hindu philosophy, the role of law is to establish Dharma, which occupies a
pivotal role in individuals' lives. Hindus acknowledge four primary aims or Purushartha:
Dharma, Artha, Kama, and Moksha. Among these, Dharma is seen as fundamental and
paramount. The ultimate objective for Hindus is to pursue the path of Dharma to achieve
Moksha, signifying Salvation.

Dharma acts as a guiding principle for Hindus, offering a moral and ethical structure
for righteous living. It highlights the significance of adhering to moral and societal
responsibilities, fostering harmony and fairness within the community. Adhering to Dharma
enables individuals to synchronize their actions with elevated spiritual truths.

The other Purushartha, like Kama (desire) and Artha (wealth), hold acknowledgment
but must be pursued within Dharma's constraints. Hindu spirituality instructs that desires or
wealth accumulation sought outside Dharma's scope are deemed sinful. This principle extends
to modern legal interpretations where actions conflicting with Dharma, such as sexual offenses
or other transgressions against individuals, are seen as unethical and subject to legal
consequences.

Likewise, accumulating wealth without upholding Dharma is considered sinful and is

addressed as an offense under different legislations, including the Prevention of Corruption Act
or laws related to property offenses.

Dharma acts as a moral compass, directing individuals to align their actions with
elevated principles and ethical values. Upholding Dharma in their decisions and conduct allows
individuals to live virtuously and move closer to the ultimate goal of Moksha.

Comprehending Dharma enables individuals to grasp both codified and unspoken laws,
while the fundamental goal of the justice system remains the preservation and defense of this
Dharma. Article 142 of the Indian Constitution echoes this by conferring upon the Hon'ble
Supreme Court the jurisdiction to issue any directive essential for safeguarding Dharma,
signifying absolute justice. The Supreme Court's unique authority, coupled with the
discretionary and intrinsic powers of other courts, collectively serves the overarching objective
of upholding Dharma.

This perspective can similarly extend to understanding the philosophies of "Natural

Law of Justice" and "Due process of law." These concepts advocate that all laws and processes
must be rooted in principles of justice, fairness, and rationality. Through adherence to these
principles, the legal system strives to guarantee that the established laws and procedures are
equitable, fair, and reasonable for all individuals concerned.

33
 Ultimately, comprehending Dharma offers a complete structure for grasping and
maintaining the law. It steers the interpretation and implementation of legal principles, ensuring
that the justice system fulfils its core objective of safeguarding and advancing justice, fairness,
and righteousness within society.

The conversation underscores that Dharma, deemed the highest law, merits protection
by the judiciary despite its lack of a precise definition. Grasping Dharma can be attained by
employing the six systems of Indian philosophy (Shad Darshana) and delving into spiritual
exploration.

Spirituality entails recognizing a belief in something beyond individual existence,

surpassing mere sensory encounters. It involves acknowledging that the collective whole, of
which we're a part, holds a cosmic or divine essence. Yet, delving into profound spirituality
isn't readily accessible to all and demands a committed process to unravel the enigma of
Dharma.

Some Hindu texts outline three avenues for uncovering Dharma. The initial source
involves acquiring wisdom from a Guru, attained through studying diverse philosophical
Sanskrit texts. The second source lies in observing the conduct of noble and virtuous
individuals, serving as a guiding example. The third source stems from personal experiences,
as individuals navigate their own lives and glean lessons from the repercussions of their actions.

Together, these three sources enrich the comprehension and application of Dharma in
life. Through studying philosophical texts, emulating virtuous role models, and reflecting on
personal experiences, individuals cultivate a profound understanding of Dharma and its
significance in their lives.

To unravel the enigma of Dharma, one must delve into spirituality, utilizing the tools
offered by the six systems of Indian philosophy. This exploration involves integrating wisdom
from mentors, observing virtuous conduct, and learning from personal experiences. Through
these avenues, individuals gradually gain insight into the supreme law of Dharma and its
practical application in their lives.

Although personal experience might not be universally accessible, the other two
avenues—studying Hindu philosophy and observing noble behaviour—remain potent means
of gaining insight into Dharma. However, it's unfortunate that the modern legal system
overlooks these aspects of Hindu philosophy and Sanskrit texts in our legal studies.
Consequently, there's a dearth of effective knowledge systems within legal education to instruct
us about the processes and philosophies essential for comprehending Dharma.

5. JUDICIAL RULING & PRINCIPLES OF DHARMA

This knowledge gap is evident in specific judicial rulings that consistently neglect the
principles of Dharma while prioritizing individual choice and liberty. It's regrettable that

34
without a proper mechanism to grasp the essence of Dharma, our judicial system proceeds to
dispense justice. This inherent flaw in the system reflects in the declining confidence of the
public in the judiciary. Due to the lack of a holistic grasp of Dharma within legal education,
there exists a disconnection between the principles of justice and the spiritual and philosophical
underpinnings guiding Dharma. This disconnection may lead to a sense of injustice and
diminish public trust in the judiciary. Rectifying this deficiency necessitates re-evaluating the
legal education system to encompass a wider viewpoint that integrates the philosophical and
spiritual dimensions of Dharma. By integrating Dharma's principles into legal studies, aspiring
legal practitioners can cultivate a more comprehensive comprehension of justice, thus bridging
the divide between the legal system and the spiritual underpinnings of Dharma.

CONCLUSION

It's clear that embracing a path of spirituality is crucial for safeguarding Dharma. Yet,
since India gained independence, there has been limited advancement in forging a robust
connection between law and spirituality. Explorations at the crossroads of law and spirituality
have been notably few. The integration of spiritual principles and philosophical teachings into
legal education and practice has not garnered adequate attention. Consequently, there exists a
deficiency in the comprehensive understanding and integration of spiritual values within the
legal system. Closing this gap requires initiatives that cultivate a stronger link between law and
spirituality. This might entail integrating aspects of spiritual teachings, drawn from Hindu
philosophy and other spiritual traditions, into legal education and professional development
initiatives. Moreover, establishing forums for dialogue and exploration of the spiritual facets
of law can significantly augment the comprehension of Dharma and its applicability to legal
practice. Advocating for a more extensive integration of spirituality and law allows for a
holistic approach to justice, in accordance with the core principles of Dharma. Achieving these
demands dedicated efforts to narrow the divide between law and spirituality, nurturing a
profound comprehension and recognition of the spiritual elements inherent in the pursuit of
justice.

35
 DUTIES AND RIGHTS OF CITIZENS IN THE DHARMASUTRA

Pratibha Shastri

The author focuses on the duties and rights of citizens as outlined in the
Dharmasutra of the Vedic era. The chapter explains how Vedic culture placed
greater emphasis on duties than on rights. The Dharmasutra extensively defined
social conduct, state governance, justice, and civic duties. Civic duties were
categorized as political, social, and economic. Political duties included the mutual
responsibilities of the king and the citizens. The primary duty of the king was to
ensure justice and security, while the duty of the citizens was to pay taxes and abide
by social rules. Social duties established codes of conduct for various sections of
society. Special attention was given to the rights of women, students, and animals.
Women were granted rights to protection, education, and participation in religious
rituals. Students had the right to receive education and gain knowledge from their
gurus. Economic duties covered the tax system, trade, and property rights. The king
had the right to collect taxes, but it was mandatory for these to be used for the
welfare of the people. The chapter also highlights that the Dharmasutra placed
particular emphasis on environmental conservation and morality. Citizens were
entrusted with the responsibility of maintaining the purity of natural elements such
as trees, rivers, and air. Thus, this chapter seeks to explain the balance of rights and
duties in Bharatiya culture through the lens of the Dharmasutra.

INTRODUCTION

From the Vedic era itself, the seeds of Dharmashastra began to emerge. To understand
the meaning of Vedic mantras, the Vedangas were developed. Among the Vedangas, which
serve as auxiliaries to the Vedas, the Kalpa literature holds significant importance. This
literature was presented in the form of sutras, which made it comprehensible. Moreover, due
to the importance of its subject matter, it holds eternal significance even today. It has been a
part of our cultural tradition.

In Sutra literature, Dharmasutra represent Dharmashastra. These served as substitutes

for the Vedas in the holistic social conduct of life, incorporating the Vedic foundation along
with the traditions, practices, ethics, and moral values of that era. No topic was left untouched
in them. In the Dharmashastra, there was a synthesis of practice and ideals. Humans, with the
consent of enlightened citizens, established a system of daily conduct for the governance of
society, which is referred to as a human-made system or Samaya (temporal dharma).
Explaining these was the main subject of the Dharmasutra.1 The commentator Haradatta has


Deputy Registrar, Cooperative Department, Rajasthan Government. The author is PhD in Sanskrit from JNU,
New Delhi.

1
अथातस्सामयाचारिकान् धमाा न् व्याख्यास्यामः । आप. धमा. १.१.१

36
identified three types of Samaya: Vidhi (prescription), Niyama (rule), and Pratishedha
(prohibition). These encompass all types of actions.

From this social system and its development, the concept of the state emerged, along
with the notions of justice and security. With their progressive evolution, the duties of each
individual were defined. The sages compiled various Dharma (rules) based on how each person
should behave with others in society and what contribution this behaviour would make to
societal progress. This was referred to as the Code of Conduct (Āchār Sanhita). Although the
learned (enlightened citizens) were considered the authority in this system, ordinary individuals
were not expected to blindly follow duties. This was because humans possess inherent
weaknesses. Regarding actions, one should rely on one’s own discretion. This principle was
given by the Sutrakara Āpastamba.2

This was the constitution of society, created by enlightened citizens (Dharmagyas), and
it represented a legitimate system of social governance. Its foundation was not the state but the
contemporary social norms, values, and traditions. The state did not create these norms; rather,
it operated and regulated this system. Over extensive periods, the rules of elements such as
country, caste, lineage, class, and local associations became established as conduct (āchār).
Society is composed of numerous elements, which evolve over time and display diversity on
various grounds. Therefore, a diverse set of codes was necessary. If rules were made
considering only one group, there was a possibility of violating the dignity and rights of others,
thereby leading to social injustice. For this reason, the Dharmasutrakars included every aspect
of life in their compilations of laws and regulations. The matured form of this tradition can be
found in the subsequent texts of the Dharmashastra tradition.

By observing the Dharma Sutras obtained from various time periods, it can be estimated
that the era of the Dharma Sutras lasted approximately one thousand years (from 800 BCE to
the first century CE). The principal Dharma Sutras include those of Gautama, Apastamba,
Baudhayana, Vashistha, Vishnu, and Harita, among others.

In Bharatiya culture, greater emphasis has been placed on duties rather than rights. The
discussion of duties is found since the Vedic period. In the Vedic period, the concept of Rita
(cosmic order) in the context of duties is significant, wherein duties were prescribed for all
beings in the universe. This system was eternal and unchangeable. Varuna, the deity, was
considered its protector, who kept everyone engaged in their respective actions. There was a
provision for punishment for not adhering to it. It is mentioned in the Rigveda that the force
through which everyone remains engaged in their respective duties is the power of Rita, which
forms the foundation of the entire universe, society, individuals, living beings, and divine
powers.3 Rita became synonymous with truth and Dharma while embodying the essence of

2
दृष्टो धमाव्यततक्रमस्साहसं च पूर्वेषाम् । तेषां तेजोतर्वशेषेण प्रत्यर्वायो न तर्वद्यते । तदन्वीक्ष्य प्रयुञ्जानस्सीदत्यर्विः ।
आप. धमा. २.१३.७-९
3
ऋतेन ऋतं धरूणं धाियन्त यज्ञस्य शाके पिमे व्योमन् ।
तदर्वो धमान्धरुणे सेदुषो नृञ्जातैिजातााँ अति ये ननक्ुः ॥ ऋ. ५.१५.२

37
duty. In essence, it was a code of laws, not created by any supreme power but being the supreme
power itself. Through it, the heavens, sky, and space were governed and controlled.4 It ensured
the existence of protection between the weak and the strong, preventing violations of anyone's
rights.5 It was a moral code of conduct that remained universally active, even in the absence of
a king.

1. CITIZENS’ DUTIES

In the Dharma sutras, the duties of citizens are divided into various forms. These can
be categorized as political, social, and economic.

a) Political Duties

The political duties are related to governance. Governance ensures the protection of
individuals, living beings, social institutions, and their duties and rights. In every system of
governance, religion is integrated, which is synonymous with duty. The political duties of
individuals include the duties of the king and the responsibilities of citizens towards
governance. The duties of the king encompass the rights of the citizens.

The king's primary duties were the administration of society, the establishment of
happiness, peace, and fearlessness in the community, the protection of citizens' rights, and
ensuring justice. The duty of protecting the subjects was considered so important that the king
identified himself with the happiness and sorrow of the subjects.6 According to Gautama, the
king's duties include protecting all living beings, preserving the Varna and Ashrama systems,
and inspiring fallen individuals to follow the righteous path.7 He was responsible not only for
protecting humans but also for safeguarding all living beings and nature (Sarvabhutanam).
Kautilya also believed that the king should protect the conduct of all four Varnas and Ashramas
and restore the decaying Dharma (to guide those deviating from their duties back to their
responsibilities).8 He even wrote that if ascetics who have taken vows of renunciation behave
deceitfully, the king should punish them and guide them back to the path of duty. The
establishment of a welfare state required the establishment of the Varna and Ashrama system.9

In fact, as the head of society, the king was exemplary for the citizens to emulate. The
entire state was governed by him. According to Gautama, the lives of people belonging to the

4
यतश्चोदे तत सूयोऽस्तं यत्र च गच्छतीतत प्राणाद्वा एष उदे तत प्राणेऽस्तमेतत तं तदर्वाश्चतक्रिे धमा स एर्व अद्य स उ श्व इतत ।
बृह. उप. १.५.२३
5
अथोऽबलीयान् बलीयासमाशंसन्ते धमेण यथा िाज्ञैर्व । बृह. उप. १.४.१४
6
प्रजासुखे सुखी िाजा तद् दु ः खे यश्च दु खखतः ।
स कीततायुक्तो लोकेखिन्प्रेत्य स्वगे महीयते ॥ तर्वष्णु धमासूत्र, ३.९८
7
िाज्ञोऽतधकं िक्णं सर्वािूतानाम् । न्यायदण्डत्वम् । गौ. धमा. २.१.७-८
तथा र्वणाा श्रमां श्च न्यायतोऽतििक्ेत् । चलतश्चैतान्स्स्वधमे स्थापयेत् । गौ. धमा. २.२.९-१०
8
चतुर्वाणाा श्रमस्यायं लोकस्याचाििक्णात् ।
नश्यतां सर्वाधमाा णां िाजधमाप्रर्वताकः ॥ अथाशास्त्र, ३.१
9
प्रव्रज्यासु र्वृथाचािान् िाजा दण्डे न र्वाियेत् । र्वही, ३.१६

38
four Varnas, trees that grow or decline, immovable entities with dormant consciousness,
animals and other living beings, flying birds, and slithering snakes were dependent on the king:

तयोश्चतुर्विधस्य मनुष्यजातस्यान्तः संज्ञानां चलनपतनसपिणानामायत्तं जीवनम्॥ 10

It is the king's duty to protect them. The responsibility of protecting society rested on
two types of citizens: 1. The king and 2. Learned Brahmins. 11 These were the ones who
appointed other citizens to their respective duties. Here, "Brahmin" refers to enlightened
citizens because the author of the Sutras has used the adjective "learned." This indicates that a
great task like protection was entrusted only to educated, enlightened, and responsible
individuals. During the period of the Sutras, their qualifications were determined. Gautama has
enumerated three duties for both of them: growth, protection, and protection from
transgressions of duties.12 By "growth," it means advancement, removing all obstacles to the
progress of the state.

The king should protect the people from the fear of enemies.13 Achieving victory in war
and ensuring the security of the kingdom were important tasks. However, one should not
engage in injustice during war. Keeping in mind human emotions and moral values, Boudhayan
has directed that the king should not fight with the fearful, the intoxicated, the insane, the
unconscious, those without armour or weapons, women, children, the elderly, and Brahmins:

भीतमत्तोन्मत्तप्रमत्तर्वसन्नाहस्त्रीबालवृद्धब्राह्मणैनि युध्येताऽन्यत्राऽऽततार्यनः ।14

Such thoughts have also been expressed by Āpastamba, who stated that the king should
not kill those who have surrendered their weapons, those who, with disheveled hair and folded
hands, beg for mercy, or those who are fleeing the battlefield.15 Baudhāyana has mentioned
that one should not strike the enemy with barbed weapons or poisoned weapons. 16 In the
present times, ignoring morality, there is indiscriminate use of nuclear and chemical weapons
in the world. In such a scenario, this teaching is practical.

Another important duty of the king was to establish justice and a system of punishment.
This system protected the rights of citizens. In fact, when rights are violated, justice is the only
safeguard. “As long as the king of the nation or state does not ensure that every individual,
irrespective of their status—big or small, learned or unlearned, rich or poor, respected or
unrespected—will receive justice according to the code of conduct in case of doubt or dispute,

10
गौत्तम धमासूत्र, १.८.२
11
द्वौ लोके धृतव्रतौ िाजा ब्राह्मणश्च बहुश्रुतः । गौ. धमा. १.८.१
12
प्रसूती िक्णमसंकिो धमाः । गौ. धमा. १.८.३
13
िये तर्वशेषेण । गौ. धमा. २.१.१४
14
बौ. धमा. १.१०.१८.११
15
न्यस्तायुधप्रकीणाकेशप्राञ्जतलपिाङार्वृत्तानामायाा र्वधं परिचक्ते । आप. धमा. २.५.१०.१२
16
न कतणातिना तदग्ैः प्रहिे त् । बौ. धमा. १.१०.१८.१०

39
internal security remains unreal.”17 It is the king’s duty to administer punishment justly.18
Justice prevents the criminal from committing further crimes, and punishment absolves the
sinner of their sins.19 Along with this, an impartial assessment of the offense is also essential
for the redress of the victim.20 If the king does not impartially dispense justice, he himself
becomes a participant in sin.21 Out of the fear of sin, this was made an obligatory duty of the
king. It is mentioned in the Mahābhārata that when the policy of punishment becomes lifeless,
the three Vedas drown, and all religions, i.e., the foundation of culture, regardless of how
ancient they are, are completely destroyed. When ancient statecraft is abandoned, all the
foundations of personal duties in the stages of life are destroyed.22 Clearly, social stability can
only exist by adhering to statecraft or political duties.

b) Social Duties

In ancient Bharat, the entire social structure was constructed and organized on the basis
of the varna and ashrama systems. Although this system was not created by the state, the state
acted as its regulator and administrator. The Āpastamba Dharmasūtra explicitly states that any
individual who violates the rules or regulations of the varna and ashrama system or engages in
prohibited conduct should be imprisoned by the king and kept in custody until they agree to
adhere to the rules and abstain from prohibited actions. If even then no improvement is seen,
the person should be exiled from the state.23 In society, the householder held the utmost
importance because all other types of citizens depended on the householder for their
sustenance. The householder fulfilled their social duties through the five great sacrifices (pañca
mahāyajña), the three debts (ṛṇa-traya), hospitality towards guests, and responsibilities towards
other ashramas. The five great sacrifices are Bhūta Yajña, Manuṣya Yajña, Pitṛ Yajña, Deva
Yajña, and Brahma Yajña.24 The three types of debts are Ṛṣi Ṛṇa (debt to sages), Deva Ṛṇa
(debt to gods), and Pitṛ Ṛṇa (debt to ancestors).

All citizens were expected to strive for the protection of women. According to
Āpastamba, if a woman is encountered in the forest, one must initiate conversation with her.25
In the harsh conditions of the forest, upon seeing a woman, one should approach and start a
conversation because, due to her natural disposition, she may not take the initiative to
communicate about her distress. In today’s world, the security of women is not satisfactory,

17
धमासूत्रों में िाजधमा एर्वं न्याय व्यर्वस्था, सुधा शमाा , पृ. ८१
18
न्याय्दण्डत्वम् । गौ. धमा. २.१.८
स्विाष्टरे न्यायदण्डः स्यात् । तर्व. धमा. ३.९६
19
िाजतिधृातदण्डास्तु कृत्वा पापातन मानर्वाः ।
तनमालाः स्वगामायाखन्त सन्तः सुकृततनो यथा ॥ र्वतस. धमा. १९.३०
20
र्वैितनयाा तनाम् । बौधा. धमा. १.१०.१९.१
21
प्राप्ततनतमत्ते दण्डाकमातण िाजानमेनः स्पृशतत । तह. धमा. २७.६.१३
22
मज्जेत्रयी दं डनीतौ हतायां सर्वे धमाा ः प्रक्येयुतर्वार्वृद्ाः ।
सर्वे धमाा श्चाश्रमाणां हताः स्युः क्ात्रे त्यक्ते िाजधमे पुिाणे ।। महािाित, शाखन्त पर्वा, ६३.२८
23
तनयमाततक्रमणमन्यं र्वा िहतस बन्धयेत् । आ समापत्तेः । असमापतौ नाश्यः । आप. धमा. २.१०.२७.१८-२०
24
पञ्चैर्व महायज्ञाः । तान्येर्व महासत्रातण िूतयज्ञो मनुष्ययज्ञः तपतृयज्ञो ब्रह्मयज्ञ इतत । शतपथ ब्राह्मण, ११.५.६.७
25
अिण्ये च खस्त्रयम् । आप. धमा. १.४.१४.२८

40
and consequently, extensive efforts are being made in this regard. This duty, established in
ancient times, remains relevant even today. The commentator has also clarified this point:

सम्भाषणं च मातृवद्भर्िनीवाच्च – ‘भर्िर्न र् ं ते रवार्ण न भेतव्यम्’ इर्त । 26

The Dharmasutrakaras were aware of duties toward nature. Considering trees,

mountains, rivers, etc., as sentient beings, they regarded them as citizens of the state. A person’s
duties toward them were considered their rights. Hence, the Dharmasutra, in stern words,
prohibited actions that harmed them. Nature, since ancient times, has consistently performed
its duties. It is only humans who falter in their duties, which is why the provision of duties
toward nature is meant for humans.

Gautama emphasized the necessity of keeping natural elements like air and water pure
and instructed that one should not defecate, urinate, spit, or throw leftover food facing air, fire,
Brahmins, the sun, water, deities, or cows.27 Āpastamba shared a similar view.28 The
significance of purity was such that one was advised not even to stretch their feet toward these
elements.29 This rule did not merely imply physical duties but also prescribed mental
responsibilities, as one was instructed not to even think of polluting these elements. According
to Āpastamba, even while performing achaman (sipping water ritually), one should not pollute
the water. While being inside a river or water reservoir, one should not perform achaman.30
Instead, water should be taken separately for the ritual. Baudhāyana also stated that some
believe one should not enter cremation grounds, water bodies, temples, or cowsheds without
washing their feet.31 Cleaning the body, washing clothes by rubbing them by hand, or
performing achaman while in the water was prohibited.32 These rules were for all citizens but
were particularly emphasized for students. Spitting or defecating in water was strictly
prohibited.33 Vasiṣṭha further stated that humans should not pollute rivers, public roads, sown
fields, pastures, etc.34

c) Economic Duties

The Dharmasutra prescribed economic duties and rights for all social classes. These
economic duties regulated society. Everyone contributed to the economy. By this time,
economic activities were well-developed, such as lending and borrowing, rules for buying and

26
आप. धमा. १.४.१४.२८ पि टीका ।
27
न र्वाय्र्वतितर्वप्रातदत्यापो दे र्वता गाश्च प्रतत पश्यन्वा मूत्रपुिीषामेध्यान्स्व्युदस्येत् । गौ. धमा. १.९.१३
28
अतिमातदत्यमपो ब्राह्मणं गां दे र्वताश्चाऽतिमुखो मूत्रपुिीषोः कमा र्वजायेत् । आप. धमा. १.११.३०.२३
29
अतिमातदत्यमपो ब्राह्मणं गां दे र्वताद्वािं प्रतत पादं च शखक्ततर्वषये नाऽतिप्रसाियीत । आप. धमा. १.११.३०.२५
30
नाप्सु सतः प्रयमणं तर्वद्यते । आप. धमा. १.५.१५.१०
31
अथ है के ब्रुर्वते- श्मशानमापो दे र्वगृहं गोष्ठं यत्र च ब्राह्मणा अप्रक्ाल्य पादौ तन्न प्रर्वेष्टव्यतमतत । बौ. धमा. २.५.८.२
32
नाप्सु सतः प्रयमणं तर्वद्यते न र्वासः पल्पूलनं नोपस्पशा नम् । बौ. धमा. २.५.८.८
33
अप्सु च । तथाष्ठे र्वनमैथुनयोः कमाा ऽप्सु र्वजायेत् । आप. धमा. १.११.३०.२१-२२
34
न नद्यां मेहनं कुयाा न् न पतथ न च िितन ।
न गोमये न र्वा कृष्टे नोप्ते क्ेत्रे न शाद्वले ॥ र्वतस. धमा. ६.१२

41
selling under state control, various types of agriculture, different crafts and artisanship, import-
export, and the system of exchange.

The concept of black money as the most harmful element to the economy was also
developed during this period. The Vishnu Dharmasutra classified wealth into three categories:
shukla (white), shabla (mixed), and asita (black). Wealth earned by following prescribed rules
of one’s own profession was termed shukla dhan (white wealth). Wealth earned by adopting
the profession of the subsequent class in the hierarchical order was termed shabla dhan (mixed
wealth). Wealth earned by adopting the profession of classes beyond this order was termed
asita dhan or black wealth.35 Essentially, the profession-based varna system ensured efficiency
in all fields, and there was no encroachment on each other’s domains. The wealth earned by
violating these rules was considered black money.

Artisan classes, primarily from the shudra class, contributed the most to the economy.36
The barter system was prevalent in society, but it was primarily an exchange of goods rather
than currency. The currency system was not robust. The Dharmasutra prescribed that traders
should ensure that the goods exchanged were of equivalent value and, as far as possible, of the
same type so that no one suffered a loss or had their rights exploited. According to Gautama,
juices were to be exchanged with juices, animals with animals, and mangoes or sesame seeds
with an equivalent amount of cooked food.37 Āpastamba mentioned the term "vinimay"38 and
prescribed that grains should be exchanged with grains, slaves with slaves, juices with juices,
scents with scents, and knowledge with knowledge.39

The king also had economic duties toward the country. He was instructed to avoid
unnecessary luxury,40 as it would result in a non-productive economic burden. The Vishnu
Dharmasutra cautioned the king against spending the state treasury on undeserving individuals
for the economic welfare of the country.41 The state managed the economic system. Without a
king, chaos could ensue, which is why Vasiṣṭha advised that during the interim period between
the death of the old king and the coronation of the new one, no interest or profit should be
added to wealth.42 In the absence of a king, moneylenders or economic officers could charge
arbitrary interest, leading to anarchy.

2. CITIZENS’ RIGHTS

35
अथ गृहाश्रतमणखस्त्रतर्वधोऽथो िर्वतत । शुक्लः शबलोऽतसतश्च ।...स्वर्वृत्त्युपातजातं सर्वेषां शुक्लम् । अनन्तिर्वृत्त्युपात्तं शबलम् ।
एकान्तिर्वृत्त्युपात्तं च कृष्णम् । तर्व. धमा. ५८.१-२, ६-८
36
तशल्पर्वृतत्तश्च । गौ. धमा. २.१.६२
37
तनयमस्तु । िसानां िसैः । पशुनां च । लर्वणकृतान्नयोः । ततलानां च । समेनाऽऽमेन तु पक्वस्य संप्रत्यथे । गौ. धमा. १.७.१६-२१
38
अतर्वतहतश्चैतेषां तमथो तर्वतनमयः । आप. धमा. १.७.२०.१४
39
अन्नेन चाऽन्नस्य मनुष्याणां च मनु ष्यै िसानां च िसैगान्धानां च गन्धैतर्वाद्यया च तर्वद्यानाम् । आप. धमा. १.७.२०.१५
40
गुरूनमात्यााँ श्च नाततजीर्वेत् । आप. धमा. २.१०.२५.१०
41
नापात्रर्वषी स्यात् । तर्व. धमा. ३.५४
42
िाजा तु मृतिार्वेन द्रव्यर्वृखद्ं तर्वनाशयेत् ।
पुना िाजातिषेकेण द्रव्यमूलं च र्वधाते ॥ र्वतस. धमा. २.४९

42
 Rights are essential necessities of human social life, without which one can neither
develop oneself nor perform useful work for society. It is unimaginable to conceive human life
without rights. The supreme goal of a nation is the complete development of an individual's
personality, for which the nation provides certain facilities to individuals. These facilities and
the rules that make life favorable are referred to as rights.

Rights imply respecting each other's life. For this, the concept of duties for oneself is
defined. The word "adhikar" (rights) is derived from the prefix "adhi" and the root "kri," with
the suffix "ghañ," meaning to take care of, duty, responsibility, authority, sovereignty, and
position, among other meanings.43

Rights and duties are complementary to each other. The scope of rights is society, and
the religious scriptures represent this social order. Although they emphasize duties, these duties
were not imposed arbitrarily or at the cost of someone's rights. The religious scriptures reflect
a clear sense of the protection of rights. The concept of punishment for the violation of rights
had fully developed. These rights were integrated with citizens and the state.

a) Political Rights

Rights of the King: As a ruler and due to his responsibility for governance, the king
required certain rights. To fulfill the need for resources in governance and in exchange for the
service of protecting the citizens, the king had the right to levy taxes on them. In essence,
protection and taxation were interconnected as duty and right. From the king’s perspective,
protecting the citizens was his duty, while taxation was his right. From the citizens’ perspective,
receiving protection and justice was their right, and paying taxes was their fundamental duty.
According to Baudhayana, the king protected all four varnas (social classes), and thus, he
received one-sixth of their income.44 Similarly, Gautama stated that in exchange for protecting
the people, the king had the right to take a share of agriculture, trade, etc. Whatever the king
received from this was considered his livelihood.45 Baudhayana granted the king the right to
make new tax laws, but the king was only allowed to levy taxes to the extent that the taxpayer
and their profession would not be harmed (referred to by the term ‘anupahatya’).46

Along with this right, there was also an associated duty. The wealth received through
taxes was not the personal property of the king. According to the Vasishtha Dharmasutra, just
as children bring wealth to their mother, and she uses it for their benefit, the king was obligated
to use the wealth collected from the people for their welfare.47

43
र्वामन तशर्विाम आप्टे, संस्कृत-तहन्दी शब्दकोश, पृष्ठ-३०
44
षड् िागिृतो िाजा िक्ेत्प्रजाम्॥ बौधायन धमासूत्र, १.१०.१८.१
45
तद्रक्णधतमात्वात् । अतधकेन र्वृतत्तः । गौ. धमा. २.१.२८, ३०
46
अन्येषामतप सािानुरूप्येणाऽनु पहत्य धमं प्रकल्पयेत् । बौ. धमा. १.१०.१८.१५
47
एतेन मातृर्वृतत्तव्याा ख्याता । र्वतस. धमा. १९.१९, तहतमासां कुर्वीत । गौ. धमा. २.२.६
प्रजानामेर्व िूत्यथं स ताभ्यो बतलमग्रहीत् ।
सहस्त्रगुणमुत्स्त्रष्टु मादत्ते तह िसं ितर्वः ॥ िघुर्वंश, १.१८

43
 The king also had rights over abandoned or ownerless property and hidden treasures
within the kingdom. The king would acquire such property and use it solely for the welfare of
the state. If the state did not claim ownerless property, there was a higher likelihood of disputes
and plundering among the citizens. The Dharmasutra state that if someone finds a lost item
whose owner is unknown, it should be reported to the king. The king was then required to
safeguard the item for one year; after that, one-fourth of the item could be given to the finder,
and the remainder retained by the king.48 Gautama declared the king’s right over hidden
treasures (buried wealth whose owner is unknown).49 Vishnu also stated that if the king
discovers hidden wealth, he should distribute half of it to Brahmins and deposit the remaining
half in the state treasury.50 All mines within the state's jurisdiction were naturally considered
to belong to the state.51

The king also had the inherent right to punish individuals to protect the social order,
ensure citizens performed their duties, and uphold social justice.52 For this reason, the king’s
title was ‘Dandadhara’ (bearer of punishment). According to Gautama, the king alone had the
right to punish criminals. Vishnu stated that no person who failed in their duties was beyond
the king's authority to punish; this right was natural to the king. 53 However, the king was
required to exercise this right without personal bias or prejudice and administer punishment
according to the Dharmashastra and the nature of the crime.54 Therefore, he did not have the
right to misuse his authority.

Extensive rights were granted to the king for governance. To prevent the misuse of
these rights, the Dharmasutra established certain provisions. Firstly, the king was bound by the
limits of dharma (righteousness). Any violation of these boundaries was declared sinful,
leading to the fear of hell. The behaviour of the king was emulated by the common citizens.55
The determination of dharma was not made by the state but derived from the Vedas and other
scriptures. Thus, ‘the power of Dharma’ was a living force that established effective control
over the power of the king. The king could determine his decisions only according to the rules
of the Vedas, Dharmashastra, Vedangas, Puranas, traditions, customs, and the codes of conduct
of farmers, merchants, traders, and guilds.56 In addition to these social representatives, it was
necessary for the king to seek knowledge from elderly experts in Dharmashastra when making
decisions.57

48
प्रनष्टमस्वातमकमतधगम्य िाज्ञे प्रब्रूयुः । तर्वख्याप्य संर्वत्सिं िाज्ञा िक्ष्यम् । ऊर्ध्ामतधगन्तुश्चतुथं िाज्ञः शेषः । र्वही, २.१.३६-३८
49
तनध्यतधगमो िाजधनम् । र्वही, २.१.४३
50
तनतधं लब्ध्वा तदधं ब्राह्मणेभ्यो दध्यात् । तद्वतीयमधं कोशे प्रर्वेशयेत् । तर्व. धमा. ३.५६-५७
51
आकिे भ्यः सर्वामादद्यात् । तर्व. धमा. ३.५५
52
िाज्ञोऽतधकं िक्णं सर्वािूतानाम् । न्याय्यदण्डत्वम् । गौ. धमा. २.१.७-८
53
स्वधमामपालयन्नादण्ड्यो नामाखस्त िाज्ञः । तर्व. धमा. ३.९४
54
अपिाधानुरूपं च दण्डं दण्डे षु दापयेत् । सम्यग्दण्डप्रणयनं कुयाा त् । तर्व. धमा. ३.९१-९२
55
यथा तह कुरुते िाजा प्रजां तमनुर्वताते । र्वाल्मीतक िामायण, ७.४२,१९
56
तस्य च व्यर्वहािो र्वेदो धमाशास्त्राण्यङ्गान्युपर्वेदाः पुिाणम् । दे शजाततकुलधमाा श्चाऽऽम्नायैितर्वरुद्ाः प्रमाणम् ।
कषाकर्वतणक्पशुपालकुसीतदकािर्वः स्वे स्वे र्वगे । गौ. धमा. २.२.१९-२१
57
तर्वप्रततपत्तौ त्रैतर्वद्यर्वृद्ेभ्यः प्रत्यर्वहृत्य तनष्ठां गमयेत् ।गौ. धमा. २.२.२५

44
 b) Social Rights

Husband-Wife: Husband and wife are the units of the institution called family. The
wife had the right to participate in sacrificial rituals. According to the etymology of the word
‘patni’, she is the one who can take part in sacrificial rituals with her husband. 58 No religious
ceremonies could be completed without the wife. The husband and wife participated equally
in all activities. According to Apastamba, after marriage, the husband and wife performed
religious rites together, shared in the fruits of good deeds, and had equal ownership of wealth
and property.59 In the absence of her husband, the wife had the right to offer gifts and donations
when necessary. According to Apastamba, this could not be considered theft because it was the
wife's right.60

Rights of Animals: In the Dharamsutra, animals were considered citizens, and because
of human morality, they were granted rights. Humans did not have the right to violate the rights
of animals. It was the responsibility of citizens to protect their rights. All Dharmasutrakaras
(lawgivers) instructed that one should not discuss a cow that is nursing its calf with its owner,
nor should one separate the cow from its calf.61 Apastamba and Baudhayana also echoed this
view.62 If the owner was informed, he might separate them, causing distress to both the cow
and the calf. The cow had the right to feed its calf. This had economic significance as well
because fulfilling this right ensured the growth of livestock, which remains relevant to animal
husbandry and economic contributions even today.

Rights of Students: A student was the foundation of society. A student had the right to
education. The prevalent system at that time was the Gurukul system, where education was
imparted under the guidance of a teacher. Under this system, a student could request education
from the teacher of his choice, and the teacher could not refuse to teach him.63 He had the right
to receive education as per his desire. According to Apastamba, if a student felt that he was not
receiving adequate education from one teacher, he could go to another teacher.64 He was not
bound by strict regulations in the field of education. He had the right to pursue an education
according to his interests and for a sufficient duration. Teachers treated all students equally, as
their own sons, without any discrimination based on caste or economic status.65

58
पत्युनो यज्ञसंयोगे । अष्टाध्यायी, ४.१.३३
59
जायापत्योना तर्विागो तर्वद्यते । पातणग्रहणाखद् सहत्वं कमासु । तथा पुण्यफलेषु । द्रव्यपरिग्रहे षु च ।
आपस्तम्ब धमा. २.६.१४.१६-१८
60
न तह ितुातर्वप्रर्वासे नैतमतत्तके दाने स्तेयमुपतदशखन्त । आप. धमा. २.६.१४.२०
61
गां धयन्तीं पििै नाऽऽचक्ीत । न चैनां र्वाियेत् । गौ. धमा. १.९.२४-२५
62
संसृष्टां च र्वत्सेनाऽतनतमत्ते । आप. धमा. १.११.३१.१० । गां धयन्तीं न पििै प्रब्रूयात् । बौ. धमा. २.३.६.१७
63
अध्ययनाथे न यं चोदयेन्न चैनं प्रत्याचक्ीत । आप. धमा. १.४.१४.२
64
अन्तेर्वास्यनन्तेर्वासी िर्वतत तर्वतनतहतात्मा गुिार्वनैपुणमापद्यमानः । आप. धमा. १.२.८.२७
65
पुत्रतमर्वैनमनुकाङ्क्षन् सर्वाधमेष्वनपच्छादयमानः सुयुक्तो तर्वद्यां ग्राहयेत् । आप. धमा. १.२.८.२५

45
 Apastamba also granted the right to education to women and Shudras. According to
him, the knowledge possessed by women and Shudras was the ultimate limit of knowledge,
and only upon attaining this knowledge could one claim to have acquired complete learning.66

It is mentioned that a graduate (snataka) had the right to seek employment from the
king. After completing education, a graduate should approach the king to seek employment. It
was the king’s duty to provide employment to a graduate after his education.67

Right to Self-Defense: While living in society, a person had the full right to protect
themselves. They should take appropriate measures for this. Gautama stated that in life-
threatening situations, even a Brahmin could bear arms.68 Apastamba, quoting the Puranas,
stated that if a person kills an attacker to prevent violence, the anger of the attacker is absorbed
by the defender. Thus, the person defending themselves is not considered guilty.69 Baudhayana
expressed the same views. He also instructed that a teacher or a high-born person could be
killed if it was necessary for self-defense.70 According to Vasistha, there was no sin in killing
a tyrant.71 Gautama and Vishnu also held that if a strong person assaulted a weaker one, and if
another strong person was present and failed to protect the weak, the bystander would be as
guilty as the assailant.72

Right to Pardon from Punishment: There was also a right to pardon from
punishment. The Dharamsutra reveal a corrective tendency in the form of penance
(prayaschitta). Through this, a person could attempt to free themselves from punishment and
bring about lasting moral reform within themselves. After performing penance, a person could
regain their lost rights.73 Society initially gave an individual the opportunity to reform
themselves through penance. By performing penance, one could be freed from punishment.74
It was a personal act in which an individual, guided by their moral conscience, recognized their
misconduct and corrected it through prayer and austerities.75 However, over time, the concept
of penance was taken over by royal justice, as social and judicial order could not solely depend
on individual goodwill.

c) Women's Rights

66
सा तनष्ठा या तर्वद्या स्त्रीषु शूद्रेषु च॥ आपस्तम्ब धमासूत्र, २.११.२९.११
67
योगक्ेमाथामीश्विमतधगच्छे त्॥ गौत्तम धमासूत्र, १.९.६३
68
प्राणसंशये ब्राह्मणोऽतप शस्त्रमाददीत । गौ. धमा. १.७.२५
69
यो तहं साथामतिक्रान्तं हखन्त मन्युिेर्व मन्युं स्पृशतत न तखिन् दोष इतत पुिाणे । आप. धमा. १.१०.२९.७
70
अध्यापकं कुले जातं यो हन्यादाततातयनम् ।
न तेन भ्रूणहा िर्वतत मन्युस्तं मन्युमृच्छतीतत ॥ बौ. धमा. १.१०.१८.१२
71
आततातयनं हत्वा नात्र प्राणच्छे त्तुः तकंतचखिखिषमाहुः । र्वतस. धमा. ३.१६
72
दु बालतहं सायां च तर्वमोचने शक्तश्चेत् । गौ. धमा. ३.३.१९, उत्क्रोशन्तमनतिधार्वतां तत्समीपर्वततानां संसितां च । तर्व. धमा. ५.७४
73
चरिततनर्वेशं सर्वनीयं कुयुाः । बौ. धमा. २.१.१.३७
74
द्वादशर्वषाा तण चरित्वा तसद्ः सखिस्सम्प्रयोगः । आप. धमा. १.९.२४.२०
75
अथ कमातििात्मकृतैगुारुतमर्वाऽऽत्मानं मन्येताऽऽत्माथे प्रसृतयार्वकं श्रपयेदुतदतेषु नक्त्रेषु । बौ. धमा. ३.६.६.१

46
 The status of women has changed across different periods. Although the Dharamsutra
do not extensively discuss the broad rights of women, they repeatedly emphasize their
importance. Some duties have been prescribed for them, and certain rights have been granted.
There are differences of opinion among the Dharmasutrakaras regarding women's rights. Some
scholars consider women and their actions sacred.76 According to Vasistha, the actions of
women and children are always pure. Furthermore, he states that the mouth of a goat and a
horse, the back of a cow, and the back of a Brahmin are pure, but a woman is entirely pure.77

Right to Protection: The Dharamsutra state that women have the right to protection.
Society is responsible for ensuring their protection in every circumstance. According to
Baudhayana, for men of all varnas (castes), their wives are to be protected even more carefully
than wealth.78 Manu also declared that it is a husband's duty to protect his wife, stating that by
safeguarding his wife, a man protects his character, lineage, soul, and Dharma.79 Only when a
woman is protected can she contribute to the progress of the nation. Additionally, it is not only
a right but also a duty of a woman to protect herself, as only then can she become a responsible
citizen of the country. Manu wrote that even in the homes of trustworthy and obedient men,
women remain unprotected if they do not take responsibility for their own safety due to a lack
of righteous intellect. On the other hand, women who protect themselves with a righteous
intellect remain safe.80

Right to Education: Although references to women's education during the Sutra period
are limited, they are sufficient to clarify the state of education at that time. The Vedic period
explicitly mentions women's right to education, but by the Sutra period, their rights had been
restricted. The reason for this was possibly the sense of insecurity. Women began receiving
education at home from family members. Apastamba discusses the mature knowledge and
scholarship of learned women.81 He even stated that all other knowledge should be obtained
from women, as they represent the ultimate limit of knowledge.82 Maharishi Patanjali, using
the terms Upadhyayi or Upadhyaya, indicated the presence of female teachers.83 However,
Manu granted them the right to initiation (upanayana) but diminished its significance by
prohibiting them from reciting Vedic mantras.84

76
श्वहताश्च मृगा र्वन्याः पातततं च खगैः फलम् ।
बालैिनुपरिक्रान्तं स्त्रीतििाचरितं च यत् ॥ र्वतस. धमा. ३.४५
77
अजाश्वा मुखतो मेध्याः गार्वो मेध्यास्तु पृष्टतः ।
ब्राह्मणाः पादतो मेध्याः खस्त्रयो मेध्यास्तु सर्वात्रः ॥ र्वही, २८.९
78
सर्वेषामेर्व र्वणाा नां दािा िक्ष्यतमा धनात् । बौ. धमा. २.२.४.२
79
दे र्वदत्तां पततिाा यां तर्वन्दते नेच्छयात्मनः ।
तां सार्ध्ीं तबिृयातन्नत्यं दे र्वानां तप्रयमाचिन् ॥ मनु. ९.९५
80
अितक्ता गृहे रुद्ाः पुरुषैिाप्तकारितिः ।
आत्मानमात्मना यास्तु िक्ेयुस्ताः सुितक्ताः ॥ मनु. ९.१२
81
आथार्वणस्य र्वेदस्य शेष इत्युपतदशखन्त। स्त्रीभ्यस्सर्वार्वणेभ्यश्चं धमाशेषान्प्रतीयातदत्येक इत्येके।आप. धमा.२.११.२९.१२,१६
82
सा तनष्ठा या तर्वद्या स्त्रीषु शूद्रेषु च॥ आपस्तम्ब धमासूत्र, २.११.२९.११
83
उपेत्याधीयते तस्या उपाध्यायी उपाध्याया। पतञ्जतलमहािाष्य, ३.३.२१
84
अमखिका तु कायेयं स्त्रीणामार्वृदशेषतः ।
संस्कािाथे शिीिस्य यथाकालं यथाक्रमम्॥ मनु. २.६६

47
 Thus, by this time, the formal right to education and initiation had become more
symbolic than substantive.

Right to Marriage: This right was granted by parents. It was the mandatory duty of
parents to arrange the marriage of their daughter at the appropriate time. Otherwise, a girl had
the right to choose a groom and marry him on her own. However, in such cases, she had to
return the clothes and jewellery received from her family.85 According to Baudhayana, a girl
should wait for three years, after which she could choose a suitable groom for herself.86 While
inter-caste marriages were permitted, it was also stated that if no groom of the same caste and
merit was available, a girl could marry a man of lower merit.87

Women were also allowed to remarry. Gautama mentions Paunarbhava (the son of a
remarried woman), implying that a woman had the right to leave one husband and marry
another.88 This right also applied to widows. According to Kautilya, if a woman was abandoned
due to family ruin, loss of wealthy relatives, or misfortune, or if her husband had gone abroad
(Proshitapatika), she could remarry for survival.89

Right to Perform Sacrificial Rituals (Yajna): Women had the right to perform
religious rituals alongside their husbands. Panini, while discussing the etymology of the word
"patni," wrote that a wife is one who has the right to perform sacrifices and share in the fruits
of the sacrifice.90 No religious ceremonies could be completed without a wife. Husband and
wife participated equally in all religious and economic matters. According to Apastamba, after
marriage, a husband and wife performed religious rites together, shared in the fruits of good
deeds, and had equal ownership of wealth and property. 91

In society, Anuloma (hypogamous) marriages were common. In such cases, only a wife
of the same caste was granted the right to participate in sacrifices with her husband, as men
had multiple wives. It was stated that if a wife of the same caste was unavailable, then a lower-
caste wife could also have the right to perform sacrifices. However, a Shudra wife was denied
this right.92

85
त्रीन्कुमायृातूनतीत्य स्वयं युज्येतातनखन्दतेनोत्सृज्य तपत्र्यानलंकािान्।गौ. धमा. २.९.२०
86
त्रीतण र्वषाा ण्यृतुमती कां क्ेत तपतृशासनम्।
ततश्चतुथे र्वषे तु तर्वन्दे त सदृशं पततम्।बौ. धमा, ४.१.१०.१५
87
अतर्वद्यमाने सदृशे गुणहीनमतप श्रयेत्।बौ. धमा.४.१.१०.१६
88
कानीनसहोढपौनिार्वपुतत्रकापुत्रस्वयंदत्तक्रीता गोत्रिाजः । गौ. धमा.३.१०.३१
89
कुटु म्बखद्ा लोपे र्वा सुखार्वस्थैतर्वामुक्ता यथेष्टं तर्वन्दे त जीतर्वताथामापद्गता र्वा।अथाशास्त्र. ३.४
90
पत्युनो यज्ञसंयोगे। अष्टाध्यायी, ४.१.३३
91
जायापत्योना तर्विागो तर्वद्यते । पातणग्रहणाखद् सहत्वं कमासु । तथा पुण्यफलेषु । द्रव्यपरिग्रहे षु च ।
आपस्तम्ब धमा. २.६.१४.१६-१८
92
नातिं तचत्वा िामामुपेयात्।र्वतस. धमा. १८.१७
तमश्रासु च कतनष्ठयातप समानर्वणाया। समानर्वणाा या अिार्वे त्वनन्तियैर्वापतद च। न त्वेर्व तद्वजः शूद्रया। तर्व. धमा.

48
 Right to Property: In Bharatiya culture, women were granted property rights. In
contemporary civilizations, women were treated as commodities that could be bought and sold.
However, in the legal framework of Dharmashastra, no one, including a husband, father, son,
or king, had the right to sell a woman. Although some exceptions are found, such practices
were condemned. According to Apastamba, the husband and wife had equal rights over the
family's property, and family members should act according to their directives.93 A wife could
donate from family wealth in the absence of her husband. In cases of division of property, her
share was completed by including her jewellery (Stridhana).94

According to Yajnavalkya, a woman did not have the right to demand a share of family
wealth. However, if a father divided his property among his sons while alive, the wife would
receive an equal share, but only if she had not received Stridhana.95

Gautama recognized a widow’s right to her husband's property,96 whereas Apastamba97

and Vasistha98 did not acknowledge this right. Most Dharmasutrakaras, including Gautama and
Baudhayana,99 denied a daughter the right to inherit family property. However, Apastamba
granted daughters this right, though they were listed as the last heirs.100 Kautilya explicitly
supported daughters’ property rights. He stated that if a childless man died, his property should
go to his cohabiting brothers and daughters.101 If a man had children, then both sons and
daughters from legitimate marriages were entitled to inherit his wealth.

Denying women direct inheritance rights was balanced by the concept of Stridhana,
which a woman could use freely.

Stridhana (Women's Wealth): Only a few Dharmasutrakaras have discussed

Stridhana. This was the wealth over which a woman had full ownership. It included clothes,
jewellery, and money received at marriage and other significant occasions from her parents,
brothers, relatives, and husband.102 According to Vishnu, Stridhana included wealth given to a
woman by her parents, sons, and brothers, money granted in front of the sacred marriage fire

93
कुटु खम्बनौ धनस्येशाते । तयोिनुमतेऽन्येऽतपतखद्तेषु र्वतेिन् । आप. धमा. २.११.२९.३-४
94
अलंकािो िायाा याः ज्ञाततधनं चेत्येके । आप. धमा. २.६.१४.९
95
यतद कुयाा त्समानंशान् पत्न्यः कायाा ः समां तशकाः ।
न दत्तं स्त्रीधनं यासां ित्राा र्वा श्वशुिेण र्वा ॥ याज्ञ.२.१५
96
तपण्डगोत्रतषासम्बन्धा रिक्थं िजेिन्स्स्त्री र्वाऽनपत्यस्य । गौ. धमा. ३.१०.१९
97
पुत्रािार्वे यः प्रत्यासन्नः सतपण्डः । आप. धमा.२.६.१४.२
98
यस्य पूर्वेषां षण्ां न कतश्चद्दायादः स्यात्सतपण्डाः पुत्रस्थानीया र्वा तस्य धनं तर्विजेिन्। तेषामलाि आचायाा न्तेर्वातसनौ
हिे याताम्।…र्वतस. धमा.१७.८१-८२
99
असत्स्वन्ये षु तद्गामी ह्यथो िर्वतत। सतपण्डािार्वे सकुल्यः । तदिार्वे तपताऽऽचायोऽन्तेर्वास्यृखत्वग्वा हिे त्।बौ. धमा.१.५.११.९-११
100
पुत्रािार्वे यः प्रत्यासन्नः सतपण्डः । दु तहता र्वा। आप. धमा. २.६.१४.२,४
101
द्रव्ययपुत्रस्य सोदयाा भ्रातिः सहजीतर्वनो र्वा हिे युः कन्याश्च ।
रिक्थं पुत्रर्वतः पुत्रा दु तहतिो र्वा धतमाष्ठेषु तर्वर्वाहे षु जायाः तिार्वे तपता धिमाणः ॥ अथा. ३.१५
102
ितगनीशुल्कः सोदयाा णामूर्ध्ं मातुः । गौ. धमा. ३.१०.२३

49
by her father, wealth given by a husband upon marrying another wife, and gifts received from
relatives and the groom’s family.103

Yajnavalkya stated that wealth given by a father, mother, husband, or brother, money
received near the sacred fire at marriage, and money granted when the husband married another
woman were considered Stridhana.104 Manu listed six types of Stridhana, including gifts given
in front of the marriage fire, departure gifts, love gifts from the husband, and various gifts from
parents and siblings.105

Thus, it is evident that a well-developed concept of Stridhana had emerged, making it

a recognized right of women. Dr. Kane noted that wealth earned by a woman through her labour
or received from external sources after marriage was not considered Stridhana.106 According
to Apastamba, a woman's clothes, jewellery, and other property received from relatives, father,
or husband were her rightful possessions.107 Ownership of Stridhana depended on three factors:
(1) the source of the property, (2) the woman’s status at the time of acquisition (whether
unmarried, married, widowed, etc.), and (3) the legal traditions governing her community.108
In times of crisis, a husband had the right to use Stridhana for necessities such as famine,
illness, imprisonment, or religious duties.109 According to Yajnavalkya, if a husband used this
wealth in emergencies, he was not required to return it.110 However, misuse of Stridhana was
restricted. If a woman spoke against the king, engaged in intoxication or gambling, or
committed adultery, she lost her claim to Stridhana.111 In the context of inheritance of Stridhan,
generally, a daughter was given preference over a son. Among the Sutrakars, Gautama was the
first to support this and also mentioned the term Stridhan. According to him, women's affection
is generally towards their daughters; hence, the heirs of wealth are also their daughters. Among
daughters, the first right belongs to unmarried daughters, but in their absence, impoverished
married daughters receive this wealth.112 According to Baudhayana and Vasistha, daughters
inherit the gifts received by their mother through tradition.113 Vishnu also considered the first
right to belong to the daughter.114 According to Kane, by this time, Stridhan had expanded

103
तपतृमातृसुतभ्रातृदत्तमध्यग्न्युपागतमातधर्वेदतनकं बन्धुदत्तं शुल्कमन्वाधेयकतमतत स्त्रीधनम्।तर्व. धमा. १७.१८
104
तपतृमातृपततभ्रातृदत्तमध्यग्न्युपागतम् ।
आतधर्वेदतनकाद्यं च स्त्रीधनं परिकीततातम् ॥
बन्धुदत्तं तथा शुल्कमन्वाधेयकमेर्व च ॥ याज्ञर्वल्क्य िृतत, २.१४३-१४४अ
105
अध्यग्न्यध्यार्वाहतनकंदत्तंचप्रीतत-कमातण।
भ्रातृमातृतपतृ प्राप्तं षड् तर्वधं स्त्रीधनं िृतम्॥मनु. ९.१९४
106
धमाशास्त्रकाइततहास, पी.र्वी. काणे, िाग-२, पृ. ९४०
107
अलङ्कािो िायाा याः ज्ञाततधनं चेत्येके। आप. धमा.२.६.१४.९
108
धमाशास्त्र का इततहास, पी.र्वी. काणे, िाग-२, पृ. ९४२
109
प्रततिोधकव्यातधदु तिाक्ियप्रतीकािे धमाकाये र्व पत्युः । अथा. ३.२
110
दु तिाक्े धमाकाये च व्याधौ संप्रततिोधके।
गृहीतम्स्त्स्त्रीधनं िताा न स्त्रयै दातुमहा तत॥याज्ञ. २.१४७
111
िाजतद्वष्टाततचािाभ्यामात्मापक्रमणेन च।
स्त्रीधनानीतशुल्कानामस्वान्यं जायते खस्त्रयः ॥ अथा.३.३
112
स्त्रीधनं दु तहतॄणाम प्रत्तानामप्रतततष्ठतानां च।गौ. धमा. ३.१०.२२
113
मातुिलङ्कािं दु तहतिस्साम्प्रदातयकं लिेिन्नन्यद्वा। बौ. धमा.२.२.३.४४
मातुः पारिणेयं खस्त्रयो तर्विजेिन्। र्वतस. धमा. १७.४६
114
सर्वेष्वेर्व प्रसूतायां यद्नं तद् दु तहतृगातम। तर्व. धमा. १७.२१

50
significantly, and people did not like the idea of women receiving more property. 115 Hence,
over time, sons also began to claim rights over it. Manu instructed that upon the mother's death,
the wealth should be divided among all brothers and sisters.116 If a woman died childless, her
wealth passed to her paternal family if the marriage was performed by the Asura rite. 117 Here,
the husband did not have the right to seize the Stridhan. It was the husband's moral obligation
to return the wealth that had come with the woman. Vishnu stated that if a woman died childless
and her marriage was conducted in a recognized category (Brahma, Arsha, Daiva, Prajapatya),
then the wealth would go to the husband; otherwise, it would pass to her paternal family.118

In conclusion, the rules, inheritance, and historical development of Stridhan stand as a

glaring example of the generosity and judicial fairness of Indian culture towards women.

d) Economic Rights

Individual ownership of land was recognized. This fell under the right to private
property, which allowed individuals to buy, sell, donate, or mortgage land. There are references
to farmers leasing land. According to Apastamba, if a person takes another’s land on lease and
does not cultivate it, the king should make that person compensate for the loss.119 This is
because the failure to cultivate results in the loss of potential produce, causing harm not only
to the landowner but also indirectly to the country’s economy. In reality, agriculture was, and
still is, of great importance. Agriculture remains the primary sector upon which the country's
economy depends. This also highlights the right to lease land. Additionally, abandoning
agricultural work midway was not permitted; otherwise, according to Apastamba, such a
person was liable to be punished physically.120

Animal husbandry was also a primary occupation alongside agriculture. The state made
provisions such as grazing lands for the welfare of livestock. However, livestock owners did
not have the right to cause damage to others. If an animal destroyed a crop, the livestock owner
was held responsible.121 If the entire produce was destroyed due to an animal, the king would
ensure that the landowner was compensated fully by the offender.122 However, animals were
not to be subjected to excessive suffering.123

115
धमाशास्त्र का इततहास, पी.र्वी. काणे, िाग-२, पृ. ९४३
116
जनन्यां संखस्थतायां तु समं सर्वे सहोदिाः ।
िजेिन्मातृकं रिक्थं ितगन्यश्च सनाियः ॥मनु. ९.१९२
117
ितगनीशुल्कः सोदयाा णामूर्ध्ं मातुः ।गौ. धमा. ३.१०.२३
118
ब्राह्मातदषु चतुषुा तर्वर्वाहे ष्वप्रजायामतीतायां तित्तुाः । शेषेषु च तपता हिे त्।तर्व. धमा.१७.१९-२०
119
क्ेत्रं परिगृह्योत्थानािार्वात्फलािार्वे यस्समृद्स्स िातर्व तदपहायाः । आप. धमा. २.११.२८.१
120
अर्वातशनः कीनाशस्य कमान्यासो दण्डताडनम् । आप. धमा. २.११.२८.२
121
पशुपीतडते स्वातमदोषः । गौ. धमा. २.३.१६
122
सर्वातर्वनाशे शदः । गौ. धमा. २.३.२३
123
नाऽततपातयेत् । आप. धमा. २.११.२८.६

51
 The king had the economic right to impose heavy taxes on items that were harmful to
the nation or were useless and merely for luxury.124 Luxury goods were considered detrimental
to the country’s economy. Citizens did not have the right to divide essential resources such as
water.125 Today, disputes over water rights occur between different nations and states, with
water being treated as private property. The Dharamsutra did not support the division of water
resources but instead emphasized its collective and proper utilization.

Rights of Laborers: The labor force plays an unparalleled role in the economy. To
ensure artisans’ right to livelihood, they were declared exempt from the rules of purity and
impurity, as practical considerations were essential for their broad occupational roles and to
fulfill societal needs. According to Baudhayana, the hands of an artisan (Karuka) are always
pure, and items displayed for sale in the market are also always pure. 126 If strict purity rules
were applied to market goods, it would have been impractical for the general public. Thus,
these regulations were formulated according to time and place to remain relevant and to
promote the economic well-being of the general population.

Economic Crimes: No one had the right to possess stolen wealth in society. According
to Gautama, a person who knowingly accepts stolen wealth is as punishable as the thief.127
However, a person who unknowingly purchases stolen goods at a fair price is innocent; but if
the truth is later discovered, they must return the goods to the rightful owner. If someone
knowingly buys stolen goods at a price lower than their actual value, both the buyer and the
seller are punishable by the state.128 According to Apastamba, one does not have the right to
enjoy material comforts acquired through unrighteous means. Even if one gains benefits
through such means, they must renounce them, declaring, “I will not associate with
unrighteousness.” 129 This teaching remains relevant in the present era, as many people desire
increased luxury, even if it is obtained through unethical, prohibited, or corrupt practices. This
mindset fuels corruption, which ultimately has the most devastating impact on the economy.

CONCLUSION

The numerous references to duties and rights found in the Dharamsutra prove that these
texts were the first to consider these issues from a humanitarian perspective. The broad concept
of citizenship, as described in the Dharamsutra, is rare in modern governance. Even the modern
concept of citizenship had already developed in these texts. These principles provide a strong

124
िाष्टरपीडाकिं िाण्डमुखच्छन्स्द्यादफलं च यत् ।
महोपकािमुच्छुल्कं कुयाा द्बीजं तु दु लािम् ॥ अथाशास्त्र, २.२१
125
उदकयोगक्ेमकृतान्नेश्वतर्विागः । गौ. धमा. ३.१०.४
126
तनत्यं शुद्ः कारुहस्तः पण्यं यच्च प्रसारितम् ।
ब्रह्मचारिगतं िैक्ं तनत्यं मेध्यतमतत श्रुततः ॥ बौ. धमा. १.६.९.१
127
प्रततग्रहीताऽप्यधमासंयुक्ते । गौ. धमा. २.३.४७
128
अजाजानः प्रकाशं यः पिद्रव्यं कीणीयात्तत्र तस्यादोषः । स्वामी द्रव्यमाप्नुयात् । यद्यप्रकाशं हीनमूल्यं च क्रीणीयात्तदा क्रेता
तर्वक्रेता च चौिर्वच्छास्यौ । तर्व. धमा. ५.१६४-१६६
129
अधमाा हृतान् िोगाननुज्ञाय न र्वयं चाऽधमाश्चेत्यतिव्याहृत्याऽधो.......। आप. धमा. १.१०.२८.११

52
foundational background for the Bharatiya Constitution. The laws and traditions described in
the Dharamsutra continue to be reflected in Bharatiya society today.

REFERENCES

• Āpastamba Dharmasūtra, Āpastamba, with Ujjvalāvṛtti commentary by Haradatta

(Hindi interpretation), Umesh Chandra Pandey, Chaukhamba Sanskrit Sansthan,
Varanasi, Vikram Samvat 2063.
• Kautilīya Arthaśāstra, Kautilya, (Ed.) Vachaspati Gairola, Chaukhamba Vidyabhavan,
Varanasi, 2003.
• Gautama Dharmasūtra, Gautama, with Mitākṣarā commentary by Haradatta (Hindi
interpretation), Umesh Chandra Pandey, Chaukhamba Sanskrit Sansthan, Varanasi,
Vikram Samvat 2061.
• Baudhāyana Dharmasūtra, Baudhāyana, (Hindi interpretation) Umesh Chandra Pandey,
Chaukhamba Sanskrit Sansthan, Varanasi, Vikram Samvat 2065.
• Manusmṛti, Manu, with Kullūkabhaṭṭa’s commentary, (Hindi translation) Hargovind
Shastri, Chaukhamba Sanskrit Sansthan, Delhi, 2007.
• Mahābhārata, Vyāsa, Gita Press, Gorakhpur, 1987.
• Mahābhāṣya, Patañjali, (Translated) Charudev Shastri, Motilal Banarsidass, Delhi,
1962.
• Vasiṣṭha Dharmasūtra, (English translation) G. Bühler, Sacred Books of the East, Vol.
14, Motilal Banarsidass, Delhi, 1965.
• Viṣṇu Dharmasūtra (Smṛti), (English translation) Julius Jolly, Sacred Books of the East,
Vol. 7, Motilal Banarsidass, Delhi, 1965.
• Śatapatha Brāhmaṇa, (Ed.) Chinnaswami Shastri, Kashi Sanskrit Granthamala-127,
Chaukhamba Sanskrit Sansthan, Varanasi, Vikram Samvat 2040.
• Hiraṇyakeśi Dharmasūtra (26th and 27th questions of Hiraṇyakeśi Śrautasūtra),
Anandashram Sanskrit Series, Pune, 1932.
• Kane, Pandurang Vaman, History of Dharmaśāstra, Uttar Pradesh Hindi Sansthan
(Hindi Samiti Division), Lucknow, 1992.
• Yājñavalkya Smṛti, Yājñavalkya, with Mitākṣarā commentary, (Hindi interpretation)
Durgadhar Jha, Bharatiya Vidya Prakashan, Delhi, 2002.

53
 JURAL RELATIONS1

Claims, liberties, powers and immunities are subsumed under the term ‘rights’ in ordinary
speech, but for the sake of clarity and precision it is essential to appreciate that this word has
undergone four shifts in meaning. They connote four different ideas concerning the activity,
or potential activity, of one person with reference to another.
(1) Y’s duty with regard to X would be expressed by X as ‘you ought (must)’ (X is
then said to have a claim or right, stricto sensu).
(2) X’s freedom to do something in relation to Y would be expressed by X as ‘I
may”: (X has a liberty or privilege).
(3) X’s ability to alter Y’s legal position would be expressed by X as ‘I can’: (X has a
power).
(4) Y’s inability to alter X’s legal position would be expressed by X as ‘you cannot’:
(X has an immunity)
The use of the homonym ‘right’ to denote these separate ideas obscures the distinctions
and leads to confusion sooner or later. It would be helpful, therefore, to make the distinctions
as obvious as possible by allotting to each a term of its own.
An important preliminary point is that a jural relation between two parties should be
considered only between them, even though the conduct of one may create another jural
relation between him and someone else. In Chapman v. Honig [(1963) 2 Q. B.502] the
defendant’s action in terminating the plaintiff’s tenancy was lawful (i.e. he had a liberty) as
between them, although it was at the same time unlawful (i.e. breach of duty) as between
defendant and the court (contempt).
When operating the scheme the following formulae will be helpful.
Jural Correlatives (vertical arrows and read both ways):… in one person, X, implies the
presence of its correlative …, in another person, Y’. Thus, claim in X implies the presence of
duty in Y (but in so far as duties may exist without correlative claims, the converse
proposition is not always true). Again, liberty in X implies the presence of no-claim in Y, and
vice versa.
Jural Opposites, including what one might here call jural negations (diagonal arrows and
read both ways) : … in one person, X, implies the absence of its opposite, …, in himself’.
Thus, claim in X implies the absence of liberty in himself, and vice versa.
The merit of Professor Williams’s presentation is that it is possible to discern at a glance
a third set of jural relations not mentioned by Hohfeld. These may be called
Jural Contradictories (horizontal arrows and read both ways): … in one person, X, implies
the absence of its contradictory, …, in another person, Y’. Thus, claim in X implies the
absence of liberty in Y, and vice versa. In the case of duties with correlative claims, a duty in

* R.W.M. Dias, Jurisprudence, Chapter 2, “ Legal Material”, pp. 23-40 (5th Ed., 1985).

54
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Jural Relations
X (absence of liberty) implies the absence of no-claim in Y and vice versa. (The question
whether there are non-correlative duties will be discussed below).
With these formulae in mind the scheme may now be considered in detail.

CLAIM-DUTY RELATION (‘YOU OUGHT’)

Hohfeld himself suggested the word ‘claim’, however, will be preferred in this book. He
did not deal at length with this relation, believing that the nature of claim and duty was
sufficiently clear. This was perhaps rather a facile assumption. He did, however, point out that
the clue to claim lies in duty, which is a prescriptive pattern of behaviour. A claim is,
therefore, simply a sign that some person ought to behave in a certain way. Sometimes the
party benefited by the pattern of conduct is able to bring an action to recover compensation
for its non-observance, or he may be able to avail himself of more indirect consequences. At
other times, he can do nothing.
The correlation of claim and duty is not perfect, nor did Hohfeld assert that it was. Every
claim implies the existence of a correlative duty, since it has no content apart from the duty.
The statement, ‘X has a claim’, is vacuous; but the statement, ‘X has a claim that Y ought to
pay him £10’ is meaningful because its content derives from Y’s duty. On the other hand,
whether every duty implies a correlative claim is doubtful. Austin admitted that some duties
have no correlative claims, and he called these ‘absolute duties’ [Austin Jurisprudence, 11th
ed., pp 401-403]. His examples involve criminal law. Salmond, on the other hand, thought
that every duty must have a correlative claim somewhere [Salmond Jurisprudence (7th edn) p
240]. Allen supported Austin. Professor G.L. Williams treats the dispute as verbal [In
Salmond Jurisprudence (11th edn) pp 264-265]. Duties in criminal law are imposed with
reference to, and for the benefit of, members of society, none of whom has claims correlative
to these duties. As far as their functioning is concerned, it is immaterial whether the claims
are in the crown, the Crown in Parliament, or whether there are any claims.
Statutory duties furnish other examples. It rests on the interpretation of each statute whether
the duties created by it are correlative to any claims in the persons contemplated by the duties.
It was held in Arbon v. Anderson (1943) 1 All ER 154 that even if there had been a breach of
the Prison Rules 1933 which had been made under the Prison Act 1898, s 2, a prisoner
affected by such a breach had no action since he had no claim. The decision in Bowmaker
Ltd. v. Tabor (1941) 2 KB I creates a difficulty. The Courts (Emergency Powers) Act 1939,
s i (2), for-bade hire-purchase firms to retake possession of things hired without first
obtaining leave of court. The claim to damages was conferred by the statute on any hire
purchaser from whom goods were retaken without the necessary leave having been obtained.
In this case the defendant purchaser consented to the plaintiffs retaking possession of the
article hired, and they did so without obtaining leave of court. The plaintiffs later sued the
defendant for arrears of rent, which had accrued up to the time of the retaking, and the
defendant counterclaimed for damages under the statute. The Court of Appeal held that he
was entitled to damages. This means that there was a duty to pay damages, which was
correlative to the claim to receive them. The duty not to retake possession without leave of
court was, as the Court pointed out, imposed in the public interest and not for the benefit of an
individual. The defendant, therefore, could not absolve the plaintiffs from it. The inference is

55
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Jural Relations
that the claim was not in him. The further question as to why the defendant’s consent to the
plaintiffs’ course of action did not debar him from exercising his claim to damages was
answered by the Court on the ground that consent, or volenti non fit injuria, is no defence to a
breach of this kind of statutory obligation [Cf. Carr v. Broaderick & Co. Ltd. (1942) 2 KB
275].
Conduct is regulated by the imposition of duties. Claims may assist in achieving this end,
but if it can be otherwise achieved, there is no reason why the mere fact that Y is under a duty
with regard to X should confer upon X, or anyone else for that matter, a corresponding claim
(Kelson, General Theory of Law and State 85). There is nothing to prevent it being the law
that every breach of duty, of whatsoever sort, shall be dealt with by the machinery of the
state. Such a state of affairs, though possible, would be inconvenient, for it would stretch state
machinery to breaking point. Where duties are of private concern, the remedies are best left to
individuals to pursue in the event of their breach. Above all, it is expedient to give aggrieved
persons some satisfaction, usually by way of compensation. Every system of law has to
decide which breaches of duties shall be taken up by the public authorities on their own
motion, and which shall be left to private persons to take up or not as they please. The
distinction between ‘public’ and ‘private’ law is quite arbitrary. It would seem, therefore, that
there is no intrinsic reason why claims should be a necessary concomitant of duties (Radin, 'A
Restatement of Hohfeld' (1938) 51 Harv LR. 1149-1150, says that X's claim and Y's ;duty are
the same thing. On the argument above, his statement is unacceptable). Indeed, some modern
writers, for different reasons, reject the whole idea of claim as redundant. If non-correlative
duties are accepted, they do not fit snughly into the Hohfeldian scheme.
LIBERTY-NO-CLAIM RELATION (‘I MAY’)
Hohfeld distinguished the freedom which a person has to do or not do something from
claim, and called it ‘privilege’ ; but the term liberty will be preferred. X’s so-called ‘right’ to
wear a bowler hat consists, on Hohfeld’s analysis, of liberty to wear the hat and another
liberty not to wear it. The relationship between claim, duty, liberty and no-claim can be
explained in the following way.
(I) Duty and liberty are jurally ‘opposite’. If, for example, X were under a duty to wear a
bowler hat, this would imply the absence in him of any liberty not to wear it, i.e. the
Hohfeldian opposite of duty means that there is no liberty to do whatever is opposite to the
content of the duty. Similarly, if X were under a duty not to wear the hat, this would be the
opposite of a liberty to wear it, i.e. there would be no liberty to do so. The jural opposition
between duty and liberty does not mean simply that the one cancels out the other, but that
they will only have that effect when the content of one is irreconcilable with the content of
the other. For example, X normally has the liberty of wearing his hat. If he puts himself under
a duty to wear it, his liberty and duty of wearing the hat are harmonious and co-exist. It is
only when he puts himself under a duty not to wear it that his liberty to wear it and his duty
conflict and are jurally opposite.
The opposition may be illustrated by Mills v. Colchester Corpn [(1867) LR 2 CP 476.
A liberty must be limited by circumstances which may create a duty to grant a licence: David
v. Abdul Cader (1963) 3 All ER 579. The owners of an oyster fishery had, since the days of

56
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Jural Relations
Queen Elizabeth I, granted licences to fish to persons who satisfied certain conditions. The
plaintiff, who satisfied them but was refused a licence, brought an action alleging a customary
claim correlative to a duty in the defendants to grant him one. The Court held otherwise on
the basis that the defendants had always exercised a discretion in the matter. This implied not
only a liberty to grant licences, but also a liberty not to grant licences, which implied the
absence of a duty to do so. If, then, they were under no duty to grant licences, the plaintiff
could have no claim.
Sometimes it is held for reasons of policy that the liberty of doing a particular thing
cannot be erased by a contrary duty. Osborne v. Amalgamated Society of Railway Servants
(1910) AC 87 lays down that the liberty of a member of Parliament to vote in any way he
chooses on a given issue cannot be overridden by a contractual duty to vote in a certain way.
Similarly in Redbridge London Borough v. Jacques (1971) 1 All ER 260, the respondent
had for several years stationed his vehicle on a service road in the afternoons of early closing
days and had operated a fruit and vegetable stall from the back of it. The local authority was
aware of this practice and had raised no objection. It then charged him with obstructing the
highway. The justices dismissed the charge on the ground that the local authority had, in
effect, given him a licence (liberty). The decision was reversed on the ground that where there
is a public duty, created by statute, this prevents the conferment of liberty to do what the duty
forbids.
(2) If Y has a claim, there must be a duty in X. A duty in X implies the absence of a
liberty in X. Therefore, a claim in Y implies the absence of a liberty in X, i.e. claim
and liberty are ‘Jural contradictories’.
(3) Conversely, the presence of liberty in X implies the absence of a claim in Y.
Hohfeld calls this condition ‘no-claim’. Therefore, a liberty in X implies the presence
of ‘no-claim’ in Y, i.e., liberty and no-claim are ‘jural correlatives’. On the
opposition between claim and no-claim are ‘jural correlatives’. On the opposition
between claim and no-claim there is this to be said. The opposition here is different
from that between duty and liberty. No question of content arises. No-claim is simply
not having a claim, and having a claim is not being in the condition on no-claim is
simply not having a claim, and having a claim is not being in the condition on no-
claim, just as having a wife is not being in a state of bachelordom (no-wife). If it is
thought necessary to distinguish between the opposition of duty and liberty on the
one hand, and no-claim and claim on the other, the latter might by styled ‘jural
negation’ instead.
Distinction between claim and liberty
A claim implies a correlative duty, but a liberty does not. X’s liberty to wear a bowler hat
is not correlative to a duty in anyone. There is indeed a duty in Y not to interfere, but Y’s duty
not to interfere is correlative to X’s claim against Y that he shall not interfere. X’s liberty to
wear the bowler hat and his claim not to be prevented from so doing are two different ideas.
Thus, X may enter into a valid contract with Y where X gives Y permission to prevent him
from wearing the hat, but X says he will nevertheless try to wear it. If X succeeds in evading
Y and leaves the scene wearing the hat, he has exercised his liberty to wear it and Y has no

57
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Jural Relations
cause for complaint. If, on the other hand, Y prevents him from wearing the hat, he cannot
complain, for he has by contract extinguished his claim against Y that Y shall not interfere.
This shows that the liberty and the claim are separate and separable; the claim can be
extinguished without affecting the liberty.
It is usual for liberties to be supported by claims, but it is important to realize that they are
distinct and separate, and the distinction is reflected in case law. It was held in Musgrove v.
Chun Teeong Toy (1891) AC 272. This case was originally quoted by Salmond. Cf.
Mackenzie King: 'it is not a "fundamental human right" of an alien to enter Canada. It is a
privilege. It is a matter of domestic policy,' quoted in Re Hanna (1957) 21 WWR NS 400.
See also R. v. Secretary of State for Home Department, exp Bhurosah (1968) 1 QB 266]
that at common law an alien has the liberty to enter British territory, but no claim not to be
prevented; which was re-affirmed in Schmidt v. Secretary of State for Home Affairs (1969)
2 Ch. 149. See also DPP v. Bhagwan (1972) AC 60. Chaffers v. Goldsmid (1894) 1 QB
186. shows that a person has the liberty of presenting a petition to Parliament through his
representative member, but no claim against such member that the latter shall comply.
Bradford Corpn. v. Pickles (1937) 1 KB 316 shows that a landowner has the liberty of
abstracting subterranean water, but no claim against anyone else who, by abstracting the
water before it reaches the landowner, prevents him from exercising his liberty. In Cole v.
Police Constable (1966) 2 All ER 133, the court considered the position of a non-parishioner
in extra-parochial churches, for example Westminster Abbey, which is a Royal peculiar.
Although the language of the learned judges is open to criticism, their conclusion, translated
into Hohfeldian terminology, was that a non-parishioner has a liberty to be in such a church,
but no claim not to be prevented. Therefore, the plaintiff’s ejection by the respondent, who
acted under instructions from the Dean, gave him no cause for complaint. Again, in
Piddington v. Bates (1960) 3 All ER 660 the defendant, a trade unionist, in the course of a
trade dispute insisted on going to the rear entrance of certain premises at which two pickets
were already standing. To do so would not have been wrongful, for he would merely have
exercised a liberty. In fact, however, the complainant, a police officer, who had decided that
two pickets were all that were needed in the circumstances, prevented the defendant from
going to the rear entrance. The latter then ‘pushed gently past’ the complainant ‘and was
gently arrested’ by him. The defendant was found guilty of obstructing a constable in the
exercise of his duty, since his liberty to stand at the entrance was not supported by a claim
not to be prevented.
The failure to distinguish between claim and liberty leads to illogical conclusion. Thus, a
member of the public has only a liberty to attend public meeting, which is not supported by a
claim not to be prevented. The tribunal in Thomas v. Sawkins (1935) 2 KB 249 argued at
one point that such a liberty to attend was a ‘right’ and that, therefore there was a duty not to
prevent the person concerned, who happened to be a policeman. The conclusion is a non
sequitur, since it fails to perceive the distinction between the two uses of ‘right’ as established
by case law. If, as was probably the case, it was sought to create a claim-duty relation for
reasons of policy, more convincing reasoning should have been employed. Cases on trade
competition, whatever the merits of the decisions, present an array of fallacious propositions,
which would have been avoided had the distinction between liberty and claim been perceived.

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Jural Relations
The claim not to be interfered with in trade corresponds to a duty not to interfere. There is
indeed a duty not to interfere, e.g. by smashing up the plaintiff’s shop; but no duty not to
interfere by underselling him. So the question how far a duty not to interfere extends, i.e. how
far the liberty of another person to interfere is allowed, is a delicate decision of policy. This is
the real issue, which is thrown into relief when these situations are seen to involve conflicting
liberties, but which is masked by the language of duties and claims.
The exposure of faulty reasoning also helps in assessing the effect and worth of decided
cases. In Thomas v. Sawkins (1935) 2 KB 249 for example, the very demonstration that the
conclusion was illogical when stated in terms of ‘rights’ and duties shows that the way to
reconcile it with the established law is by saying that it has, in effect, created a new rule of
law for policemen.
Finally, it may be observed that Hohfeld’s analysis of claim, duty, liberty and no-claim is
useful in many general ways. It may be used for drawing distinctions for purposes of legal
argument or decision. It was held, for instance, in Byrne v. Deane (1937) 2 All ER 204. See also
Berry v. Irish Times Ltd. (1973) IR 368 that to call a person an ‘informer is a person who gives
information of crime; there is in law a duty to do so, and Byrne’s case decides that it is not
defamatory to say that a man has performed a legal duty. There is only a liberty to be a
‘conscientious objector’, and Byrne’s case is thus no authority for saying that it cannot be
defamatory to allege that a person has exercised this liberty [Hamson, ‘A Moot Case in
Defamation’ (1948) CLJ 46]. Again, the analysis is useful in considering the relation between
common law and equity; in particular, it helps to demonstrate the precise extent to which there
was conflict. Thus, the life-tenant had at law the liberty to cut ornamental trees, in equity he was
under a duty not to do so. The liberty and duty are jural opposites and the latter cancels out the
former. At common law a party had a claim to payment under a document obtained by fraud, in
equity he had no-claim to payment under a document obtained by fraud, in equity he had no-
claim. Further, such a person had at law the liberty of resorting to a common law court on such a
document, where as equity imposed on him a duty not to do so (common injunction) [Hohfeld
Fundamental Legal Conceptions 133].
Liberty as ‘law’
It has been shown that liberty begins where duty ends. Some have maintained that
freedom is outside the law. Thus, Pound declared that liberty is ‘without independent jural
significance’, [‘Legal Rights’ (1916) 26 International Journal of Ethics 92 at 97] and Kelsen
said, ‘Freedom is an extra-legal phenomenon’. As to this, it is as well to remember that liberty
may result (a) from the fact that legislators and judges have not yet pronounced on a matter,
and represents the residue left untouched by encroaching duties, e.g. invasion of privacy; or
(b) it may result from a deliberate decision not to interfere, as in Bradford Corpn. v. Pickles
[(1895) AC 587 (c) from the deliberate abolition of a pre-existing duty, e.g. the statutory
abolition of the duty forbidding homosexuality between consenting adults, or an Act of
Indemnity absolving a person from a penal duty. There is some plausibility in saying with
Pound and Kelsen that liberty in sense (a) lies outside law; but it seems odd to say that the
liberty pronounced by a court in (b) and the statutory provisions in (c) are ‘without

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Jural Relations
independent jural significance’ and ‘extra-legal’. Analytically, the resulting position in all
three cases is the same, namely, no duty not to do the act.
Kinds of liberties
Some liberties are recognised by the law generally, e.g. liberty to follow a lawful calling.
So, too, are ‘Parliamentary privilege’ in debate and ‘judicial privilege’, which are liberties in
the Hohfeldian sense in that both connote the absence of a duty not to utter defamatory
statements. An infant’s position (sometimes called in non-Hohfeldian language an immunity)
in contracts for things other than necessaries is more complicated. In some cases it amounts to
a power to repudiate the contract; in others it is not clear whether an infant has a liberty not
to perform the contract, ie no primary duty to perform Coults & Co. v. Browne-lecky (1947)
KB 104, (1946) 2 All ER 207, or whether there is a sanctionless duty, i.e. a primary duty
which he ought to fulfil, but no sanctioning duty to pay damages and instead an immunity
from the power of judgment.
Other liberties are recognised by law on special occasions, that is to say, the normal duty
not to do something is replaced in the circumstances by the liberty to do it, e.g. self-help, self-
defence, the defences of fair comment and qualified privilege. Lastly, liberty may be created
by the parties themselves, e.g. consent, or volenti non fit injuria, one effect of which is that it
absolves a defendant from his duty.
Limit of liberties
Some liberties are unlimited, even if exercised maliciously, e.g., ‘Parliamentary’ or
‘Judicial privilege’. Non omne quod licet honestum est. In other cases, the exercise of liberties
may be limited by the law of ‘blackmail’, by public policy.
POWER-LIABILITY RELATION (‘I CAN’)
Power denotes ability in a person to alter the existing legal condition, whether of oneself
or of another, for better or for worse. Liability, the correlative of power, denotes the position
of a person whose legal condition can be so altered. This use of ‘liability’ is contrary to
accepted usage, but when operating the Hohfeldian table words have to be divorced from
their usual connotations. X has a power to make a gift to Y, and correlatively Y has a liability
to have his legal position improved in this way. A further point is that a person’s legal
condition may be changed by events not under anyone’s control, e.g. an accumulation of
snow on his roof. A distinction accordingly needs to be drawn between liability, which is
correlative to power, i.e. the jural relation; and what for present purposes may be termed
‘subjection’, namely, the position of a person which is liable to be altered by non-volitional
events. This is not a jural relation.
Distinction between claim and power
On the face of it the distinction is obvious: a claim is always a sign that some other
person is required to conform to a pattern of conduct, a power is the ability to produce a
certain result. The ‘right’, for example, to make a will can be dissected into a liberty to make
a will (there is another liberty not to make one), claims against other people not to be
prevented from making one, powers in the sense of the ability to alter the legal conditions of
persons specified in the will, and immunities against being deprived of will-making capacity.

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The power itself has no duty correlative to it. It would be incorrect to describe this as a ‘right’
in the testator correlative to the duty in the executor to carry out the testator correlative to the
duty in the executor to carry out the testamentary dispositions, for the will takes effect as
from death and the executor’s duty only arises from that moment. When the testator dies his
claims etc cease, so the duty cannot correlate to any ‘right’ in him.
The distinctions between claim, liberty and power are important for much the same
reasons as those considered above. A complex illustration is Pryce v. Belcher (1847) 4CB
866. At an election the plaintiff tendered his vote to the defendant, the returning-officer, who
refused to accept it. The plaintiff was in fact disqualified from voting on grounds of non-
residence. It was held that he had exercised a power by tendering his vote, which imposed on
the defendant the duty to accept it. The latter’s refusal to do so was a breach of that duty,
which might well have rendered him liable to a criminal prosecution. However, the plaintiff’s
power to impose such a duty did not carry with it either the liberty of exercising the power or
a claim to the fulfillment of the duty.
He, therefore failed in his action against the defendant for the breach of his duty.
Although a party in the situation of the plaintiff, has the power in this way to compel the
returning-officer under the apprehension of a prosecution, to put his name upon the poll,
he is acting in direct contravention of the Act of Parliament, the terms of which are
express that he shall not be entitled to vote; and that the rejection of his vote cannot
amount to a violation of any thing which the law can consider as his right. Coltman J at
883.
In David v. Abdul Cader (1963) 3 All ER 579, the defendant refused to exercise a
statutory power to grant the plaintiff a licence to run a cinema. The Supreme Court of Ceylon
rejected the latter’s action for damages on the ground that an action presupposes violation of a
‘right’ (claim) in the plaintiff and that until the power had been exercised the plaintiff
acquired no ‘right’. The fallacy is clear. The ‘right’ which the plaintiff would have acquired
on the exercise of the power is the liberty to run his cinema with appurtenant claims, powers,
etc. The acquisition or non-acquisition of these is independent of the question whether the
defendant was under a duty to exercise the power and whether there was in the plaintiff a
claim correlative to this duty. The Judicial Committee of the Privy Council reversed the
Supreme Court on this very ground and remitted the case for trial on those issues. Failure to
observe the distinction between power and claim results in confusion, though this occurs less
often than in the case of liberty and claim. Also, analysis does help to assess the case law. An
example is Ashby v. White (1703) 2 Ld Raym 938 where the ‘right’ to vote was held to
import a duty not to prevent the person from voting. The ‘right’ to vote is a power coupled
with a liberty to exercise it, and the whole point was whether there was a claim not to be
prevented. The decision in effect created such a claim, although the reasoning was fallacious.
The Sale of Goods Act 1893 (now the Act of 1979), s. 12 (I), introduces an implied condition
that a seller of goods ‘has a right to sell the goods’. It is clear from the context, which deals
with conditions as to title, that ‘right’ here means ‘power’ to pass title. It was held in Niblett
v. Confectioners’ Materials Co. (1921) 3 KB 387 that the defendant company had no ‘right’
to sell certain articles because a third party could have restrained the sale for infringement of
a trade mark. This is confusion between power and liberty. For, the fact that the defendants

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had no ‘right’ to sell certain articles because a third party could have restrained the sale for
infringement of a trade mark. This is confusion between power and liberty. For, the fact that
the defendants had power to pass title is independent of whether or not they had a duty not to
exercise it (i.e. no liberty to do so).
Distinction between duty and liability
If X deposits or lends a thing to Y, there is no duty in Y to restore it until X makes a
demand. Before such demand is made Y is under a liability to be placed under the duty. The
demand itself is the exercise of a power. The distinction is important, for instance, in
connection with the limitation of actions. Thus, in Re Tidd, Tidd v. Overell (1893)3 Cj 154.,
where money was entrusted to person for safe-keeping, it was held that the period of
limitation only commenced from the time that a demand for restoration had been made.
Again, a deposit of money with a bank amounts to a loan, and there is no duty to repay until
a demand has been made. Joachimson v. Swiss Bank Corpn. (36)3 KB 110 shows that time
only runs from demand and not from the time of the original deposit . A sum of money can be
attached under a garnishee order if there is a duty to pay, even though the actual time for
payment may be postponed. In Seabrook Estate Co. Ltd. v. Ford (37) (1949) 2 All ER 94, a
debenture holder appointed a receiver, who was to realize the assets and then pay off any
preferential claims and the principal and interest to the debenture holders, and having done
that, to pay the residue to the company. The judgment creditors of the company sought to
attach a certain sum of money in the hands of the receiver before he had paid these other
debts and which was estimated to be the residue that would be left in his hands. It was held
that this could not be done as there was as yet no duty owing to the company from this kind of
situation must be distinguished those where there is a duty owing, but the performance of
which is postponed. Such a debt can properly be the subject of attachment.
Distinction between duty and ‘subjection’
If X promises Y under seal, or for consideration, that he will pay Y £5 on the following
day should it rain, there is clearly no duty in x unless and until that event occurs. In the
meantime X’s position is simply that he is ‘subject’ to be placed under a duty. The distinction
need not be elaborated further and may be dismissed with the comment that this is not
liability to a power, but to a non-volitional event and, as such, forms the basis of much of the
law of insurance.
An analytical problem arises with such a rule as Rylands v. Fletcher, 38 (1868) LR 3 HL
330. (under which an occupier has to pay for damage caused by the escape of a substance
likely to do mischief) and the rule concerning animals (under which the ‘keeper’ has to pay
for damage done by dangerous animals and trespassing cattle), both of which do not involve
fault. There seems to be a distinction between these cases, which are sometimes called ‘strict
duties’. A duty prescribes a pattern of conduct, and by ‘strict duty’ (e.g. duty to fence
dangerous machinery) is meant one to which the actor may not be able to conform no matter
how reasonably he behaves in the circumstances. With Rylands v. Fletcher and animals, the
policy of the law is not to prevent people from keeping mischievous substances or animals,
i.e. there is no duty not to keep them. It could be argued, perhaps, that there are duties to
prevent escape, in which case they would be correlative to claims; but this is not how the

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rules are framed. What they say, in effect, is that one keeps these things at one’s peril, i.e.
liability attaches in the even of escape, which makes the position analogous to X having to
pay £5 tomorrow if it rains. If so, there is no way of accommodating cases of ‘subjection’
within the Hohfeldian scheme, except to say that they are not jural relations and therefore are
not entitled to a place therein.
Distinction between liberty and power
Buckland disputes the need for any distinction.
All rights [liberties] are rights to act or abstain, not to produce legal effects. To say that
he has a right that his act shall produce that effect is to imply that if he liked it would not
have that effect, and this is not true. The act will produce the legal effect whether he
wishes it or not. If I own a jug of water I have a right to upset it, but it is absurd to say
that I have a right that the water shall fall out. [Buckland, Some Reflections on
Jurisprudence 96].
It would appear that Buckland misunderstood the nature of the Hohfeldian power. It is not
a ‘right’ that certain effects shall ensue. Acts that have certain effects are called powers; those
that do not are not called powers. That is distinct from the liberty to perform or not to perform
such an act. The distinction may be put as follows: the liberty to perform or not applies to all
types of conduct, but considered with reference to their effects, it can be seen that some
actions result in an alteration of existing legal relations, while other do not.
Rightful and wrongful powers
The significance of the distinction between the nature of the act and the liberty to do it
may be demonstrated in this way. Sometimes a power may be coupled with a liberty to
exercise it and a liberty not to exercise it, while at other times it may be coupled with a duty
to exercise it. In both situations the exercise of the power may be said to be ‘rightful’. When a
power is coupled with a duty not to exercise it, such exercise would then become ‘wrongful’
Where a power is coupled with a liberty, a party cannot be penalised for having exercised
it, or for not having done so. Thus, X may for no consideration at all give Y permission to
picnic on his land. He may then change his mind with impunity and order Y to depart, i.e.
exercise a power revoking Y’s licence and imposing on him a duty to leave. If Y fails to do so
within a reasonable time he commits a breach of that duty and becomes a trespasser.
Chapman v. Honig (1963) 2 QB 502, Y had a liberty to be on X’s land. X Assigned his
interest to A and Y assigned his interest to B and exercised his power to revoke B’s liberty. It
was held that he could do so; since there was no contract between A and B, A was under no
duty not to exercise his power, i.e. he had a liberty to do so. Wood v. Lead bitter (1845) 13
M & W 838. Little is left of this case since Hurst v. Picture Theatres Ltd. (1915) 1 KB 1,
but the principle is sound is not exactly in point, for the plaintiff’s liberty to be on the
defendant’s premises was created by contract. The defendant ordered the plaintiff to leave
and, after a reasonable time, expelled him with reasonable force. The plaintiff did not sue in
contract, though there was undoubtedly a contractual duty not to exercise the power, but sued
for assault instead. It was held that, since he had become a trespasser, he could be ejected
with reasonable force. It was held in East Suffolk Rivers Catchment Board v. Kent (1941)
AC 74 that the Board had a power and discretion (liberty) as to its exercise. In R. v. Board of

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Referees, exp Calor Gas (Distributing) Co. Ltd. (1954) 47 R & IT 92, where a statutory
power was coupled with a liberty to exercise it and also not to exercise it, the Divisional court
refused an application for an order of mandamus to compel the Board to exercise it [R. v.
Secretary of State for the Environment, exp Hackney London Borough Council [(1984) 1
All ER 956]. Discretionary powers may be controlled as follows. (a) Abusive exercise may be
held void: Congreve v. Home Office (1976) QB 629 (b) If reasons are given, the courts may
inquire into their adequacy, e.g. if reasons are stated in a return to a writ of habeas corpus for
the release of a person committed for contempt by the House of Commons. The Judicial
Committee of the Privy Council thought that a malicious refusal to exercise a discretionary
power might amount to a breach of duty; but this is a limit on the liberty.
Where a power is coupled with a duty to exercise it, i.e. no liberty not to exercise it, there
is no question of any ‘right’ to do the act; the party ‘must’ do it. A simple example is the
power and duty of a judge to give a decision. Generally the presumption is against there being
a duty to exercise statutory powers. The word ‘may’ in an empowering statute is usually taken
to confer a liberty to exercise a power and not a duty, so mandamus will not lie. At the same
time, it was held in Trigg v. Staines UDC (1969) Ch 10 that a local authority cannot contract
not to exercise a power of compulsory acquisition, i.e. it cannot deprive itself of the liberty to
use its power by an opposite contractual duty. Where, however, there is a duty to exercise a
power, a remedy will lie for a breach of it. In Ferguson v. Earl of Kinnoull (1842) 9 Cl &
Fin 251 especially at 311; David v. Abdul Cader (1963) 3 All ER 579 damages were
awarded for the refusal by the Presbytery to take a preacher on trial. In R. v. Somerset
Justices Exp EJ Cole and Partners Ltd. (1950) 1 KB 519 the Divisional court held that the
statutory power of Quarter Sessions to state a case was coupled with a duty to do so in cases
of conviction for crimes, but that in other cases there was only a liberty to do so. Mandamus
lies in the former. Under s.17 of the Criminal Appeal Act 1968, the Home Secretary has the
liberty to exercise his power to refer a criminal case to the Court of Appeal after the normal
time limit for appeal has elapsed. Where a power is coupled with a duty not to exercise it, the
party concerned has no liberty to do so. Thus, if a person has a liberty to be on premises by
virtue of a contract, Kerrison v. Smith (1897) 2 QB 445; Thompson v. Park (1944) KB 408.
The case of Pryce v. Belcher (1847) 4 Ch. 866 has already been considered. Another
example is that of a thief who sells a thing in market over to an innocent purchaser for value.
He exercises a power in that he deprives the owner of his title and confers title on the
purchaser, but he is under a duty not to exercise this power and commits a fresh conversion
by so doing. The simplest example is the commission of tort: it is a power in that the legal
positions both of the victim and of the tortfeasor are altered, but there is a duty, owned to the
victim, not to commit the tort. Furthermore, the commission of a tort may operate as a power
against a third party. Thus, a servant who commits a tort in the course of his employment
alters the legal position of his master by imposing upon him the duty to pay damages
vicariously and a liability to be sued therefore, but the servant concurrently owes a duty to his
master not to exercise this power of imposing vicarious responsibility upon him for the breach
of which the master can recover from the servant by way of indemnity what he has to pay to
the victim of the tort. In all these situations the act of the party concerned is a power, for it
alters the legal position, even though its exercise is a breach of duty. To call such powers
‘rights’ would be a misnomer, for it would amount to speaking of ‘rights’ to commit wrongs,

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i.e. breaches of duty. Though Hohfeld purported to distinguish between uses of the word
‘right’, it is clear that not all powers, in the sense in which he used that term, can be called
‘right’. This is hardly a criticism. The power concept is unobjectionable as power; it cannot
always be brought under the umbrella of ‘rights’; which only reinforces the case for the
greater precision and scope of the Hohfeldian terminology.
Kinds of powers
Broadly, they may be divided into ‘public’ and ‘private’, but both involve ability to
change legal relations. When a public power is coupled with a duty to exercise it, it is termed
a ‘ministerial’ power; when it is coupled with a liberty, it is termed ‘discretionary’. Public
powers, though numerous especially in a administrative law, cannot compete with the
profusion of private powers. The appointment of an agent, for instance, is a power, for it
confers on the agent further powers to alter the legal position of the principal and creates in
the latter corresponding liabilities. A married woman has power to pledge her husband’s
credit for necessaries, in contract there is a power to make an offer and a power to accept,
and innumerable other in contract, property, procedure and, indeed, in every branch of the
law. Private powers may also be coupled with duties to exercise them, e.g. certain powers of
trustees, or they may be coupled with liberties.
IMMUNITY- DISABILITY RELATION (‘YOU CANNOT’)
Immunity denotes freedom from the power of another, which disability denotes the
absence of power. In Hurst v. Picture Theatres Ltd. (1915) 1 KB 1 it was held that where a
liberty to be on premises is coupled with and ‘interest’, this confers an immunity along with
the liberty, which cannot therefore the revoked. The relationship between power, liability,
immunity and disability may be explained as follows:
(1) If X has a power, Y has a liability. They are therefore ‘jural correlatives’. A liability
in Y means the absence of an immunity in him. Therefore, immunity and liability are
‘jural opposites’ (more strictly, ‘jural negations’, as previously explained).
(2) Conversely, the presence of an immunity in Y implies the absence of a liability in
him. The absence of a liability in Y implies the absence of a power in X. Therefore,
an immunity in Y implies the absence of a power in X, i.e. power and immunity are
‘jural contradictories’,
(3) The absence of power could have been styled ‘no-power’, in the same way as no-
claim, but Hohfeld preferred to give it the term disability. Power and disability thus
become ‘jural opposites’ (‘negations’). It follows from this that immunity in Y
implies the presence of a disability in X, i.e. they are ‘jural correlatives’.
Distinction between claim and immunity
An immunity is not necessarily protected by a duty in another person not to attempt an
invasion of it. If X is immune from taxation, the revenue authorities have no power to place him
under a duty to pay. A demand for payment is ineffectual, but X has no remedy against them for
having made the demand. If immunity is the same as claim, there should be correlative duty not
to make a demand. In Kavanagh v. Hiscock (1974) QB 600, it was held that the relevant
section of the Industrial Relations act 1971 (since repealed) conferred on pickets an immunity

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from prosecution or civil suit, but no liberty to stop vehicles on the highway and no claim not to
be prevented from trying to stop vehicles. Secondly, there may be an immunity in X, which is
protected by a duty in Y, but the claim correlative to that duty is not in X. Thus, diplomatic
envoys are immune from the power of action or other legal process. As pointed out earlier, even
if there are claims correlative to duties in criminal law, they are not in the persons for whose
benefit the duties exist. Finally, an immunity in X may be protected by a duty in Y and the claim
correlative to the duty may also be in X, as in the case of the malicious presentation of a petition
in bankruptcy [Chapman v. Pickersgill (1762) 2 Wils 145]. In 1936 the corporation conveyed to
the company a plot of land for 99 years for use as an airfield, and the corporation undertook to
maintain it for use by the company. In 1970 the corporation purported to revoke the company’s
interest in the land. It was held that although the corporation was not entitled to override the
company’s interest in the land, the latter’s only remedy lay in damages and not in an injunction.
The effect of the 1936 conveyance would appear to have been to grant, inter alia, a liberty to the
company; and if the corporation was unable to determine that interest, then that liberty seems to
have been coupled with an immunity against revocation. The court refused an injunction on the
ground that to issue one would amount to compelling the corporation to fulfil its obligation to
maintain the airfield, i.e. be equivalent to an order for specific performance. It is here that the
confusion lies. The ‘right’ of the company, which the court held could not overridden, was its
liberty plus immunity; but the ‘right’ correlative to the duty to maintain the airfield was its
contractual claim. Breach of this duty is remediable by damages, but the question whether an
injunction could be issued to support the immunity ought not to have been related to compelling
performance of the contractual duty.
Distinction between liberty and immunity
The position of a diplomatic envoy illustrates this. Such a person is treated as being
capable of committing a breach of duty and is under a duty to pay damages, although immune
from the power of action or other legal process to compel him to do so. In other words, he has
no liberty to do the act, nor a liberty not to pay damages for it, but he has an immunity from
process all the same. It was held in Dickinson v. Del Solar (1930) I KB 376 that the fact that
an envoy was thus under a sanctionless duty to pay damages was sufficient to involve his
insurance company in responsibility. If, on the other hand, he voluntarily pays the damages,
he cannot recover them, since there is the duty to pay.

*****

66
 LACHES AND THE RIGHTS TO CONSTITUTIONAL REMEDIES:
QUIS CUSTODIET IPSOS CUSTODES?1*
V
The threshold question is one simply of the ambit of the right to constitutional remedies.
Interpretative effort is only called for if article 32 formulations are blurred or equivocal. In
any case, close textual analysis must precede examination of policy approaches to the
interpretation of article 32.
The Constitution makes it admirably clear that the right to constitutional remedies is a
fundamental right. Under clause 4, this fundamental right is not to be suspended "except as
otherwise provided in the Constitution." But from here on the manifest clarity of article 32
seems to ebb. For, article 32(1) instead of guaranteeing in terms a right to constitutional
remedies, guarantees merely "the right to move the Supreme Court by appropriate
proceedings for the enforcement of fundamental rights."
True, article 32(1) obviously entitles a person or citizen to move the court for the enforcement
of fundamental rights, but this right must be exercised through 'appropriate proceedings'. The
Constitution nowhere defines what are 'appropriate proceedings' for moving the Supreme
Court. Obviously, the court has to decide the appropriateness of the proceedings. It may say
what proceedings are 'appropriate' and indeed determine the very scope of the term
'proceedings'.2 The court has to make law either through the interpretation of the term
'appropriate proceedings' or under its rule-making power by virtue of article 145(l)(c).
Whichever way it does this, the court (being included, as will be seen later, in the definition
of State under article 12) cannot 'take away' the right to move itself which is a guaranteed
right. It is a moot point whether interpretations of article 32(1) or rules elucidating
'appropriate proceedings' under article 145(l)(c) can be said to unconstitutionally 'abridge'
article 32 guarantee. Thus, when the court applies the doctrine of res judicata, or constructive
res judicata or laches, the problem of whether in particular situations application of these
doctrines is an impermissible 'abridgement' persists. Also persistent is the problem whether
the cumulative impact of such 'abridgements' amounts to the court's 'taking away' the article
32 right.
Be that as it may, article 32(1) by itself provides only a right to move the court for the
enforcement of fundamental rights. Many scholars argue that is all.3 But this cannot be the

* Upendra Baxi, “Laches and the Rights to constitutional Remedies: Quis Custodiet Ipsos
Custodes?”, Alice Jacob (ed.), Constitutional Developments since Independence (1975).
2
In Daryao v. State of U.P., A.I.R. 1961 S.C. 1457 the court held that the "argument that Art. 32 does
not confer upon a citizen the right to move this Court by an original petition but merely gives him the
right to move this Court by an appropriate proceeding according to the nature of the case seems to us to
be unsound".
3
E.g., Alice Jacob, "Laches : Denial of Judicial Relief under Articles 32 and 226", being a paper
presented at the I.L.I. Seminar on Administrative law (Nainital, May 1973) p. 16. Professor Jacob
maintains that Article 32(2) is "an enabling provision" and the court is not "bound to give relief in all

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case. If any person has the right to move the court, the court is under a corresponding duty to
be so moved. Although the term 'move' can be interpreted restrictively so as to denote a most
casual consideration of the petition or the mere act of receiving it, it is not controversial to say
that the bare text of article 32(1) imposes an obligation upon the Supreme Court to take
appropriate action if the case is proven.
What then is the significance of the court's power to interpret the term 'appropriate
proceedings'? It is submitted that, in strict Hohfeldian analysis, we have here a case of legal
duty qualified by a privilege. The Hohfeldian co-relative of privilege is a 'no-right'. We would
then have to say that if the court holds that a particular way of moving it for the enforcement
of the fundamental rights is not in the nature of 'appropriate proceedings', no right of the
individual is thereby violated. But surely this privilege - no-right relation occurs within the
context of a right-duty relation. That is to say, the court is not free to say that it is under no
legal duty to be moved. It is. It can only say that it has a privilege to hold that a particular
manner of initiating proceedings before it is not 'appropriate'. The court has a similar privilege
to define the term 'proceedings'.
We now turn to article 32(2) which, as is well-known, empowers the court to issue "directions
or orders, or writs...for the enforcement of any of the rights conferred by this Part". This
language of article 32(2) is regarded by some scholars to mean that the court is enabled, in
cases of proved violations of fundamental rights, to issue certain orders, directions and writs.
The argument is that if article 32(2) is an enabling provision, an empowering one, the court
has a discretion whether or not to use that power. The conclusion follows inescapably that
article 32(1) guarantees a right; 32(2) invests the court with power. There thus arises a
dualism between the two provisions: one under which the court is under a legal obligation to
be moved, another under which it has a power which it is under no legal obligation at all to
exercise.
The conclusion is manifestly wrong because the reasoning is entirely fallacious. The correct
juristic analysis is that the constitutional obligation cast upon the court to be moved for
enforcement of part III rights is coupled here with attendant powers to be so moved. The court
cannot be moved to any worthwhile effect under article 32(1) if it did not have a power to
issue 'directions, orders or writs'. Since the power is conferred in the aid of a constitutional
obligation, the exercise of that power cannot at all be discretionary. Whenever an appropriate
proceeding as determined by the court is before the court, the court must issue directions, or
orders or a writ. And the 'direction, order or writ' must be for the enforcement of a
fundamental right if the right is found to be in need of such enforcement. Only the Supreme
Court (or a court empowered under article 32(3)) can decide whether right is violated or it
needs to be enforced. The moot point here is: Can the Supreme Court itself say otherwise?
That is, can the court say that even though the right is violated or needs enforcement, it will
not exercise its article 32(2) power?
The answer to this is that it may say so; but when the court so says its judgment is vitiated by
unconstitutionality and, even on a strictly legal positivistic approach, the judgment is not
entitled to obedience, it being void under article 13. A judgment or an order of the court is

instances of infringement of fundamental rights discarding certain cardinal principles of administration

of justice...."; see also Seervai, infra note 3.

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undoubtedly a law under article 13. It determines no doubt the legal relations inter partes. But
decisions for the enforcement of part III rights also create law which is binding on all courts
throughout the territory of India. If this answer is correct (and the author believes it is) then
article 32(2) cannot at all be regarded as conferring a power merely; it must be appreciated as
conferring the power to enable the court to perform its constitutional obligation.
From this viewpoint, the decision by the Supreme Court to dismiss a petition in limine, or on
the grounds of laches, res judicata (constructive or otherwise) presents massive problems.
This is so because the court in these cases is not really saying that the allegedly infringed
fundamental rights need no enforcement. Rather, the court is saying that it itself will not
examine that issue at all. With great respect it is submitted, the court has no authority to so
do, more so since the right to constitutional remedies is itself a fundamental right.
Seervai argues, however, that no "fundamental right is conferred to obtain relief from the
Supreme Court regardless of all considerations relevant to the administration of justice."4
Such a statement standing alone cannot signify anything more than an elucidation of Seervai's
personal preferences which, though entitled to some weight, cannot be regarded as more
authoritative than the plain text of article 32. And Seervai is normally a champion of the rule
that the clear text is compelling.
Realising this, he argues as follows:
...Article 32(2)...confers a power to issue writs. This power is not expressly coupled with a
duty, nor can a duty to exercise the power be implied because the writs there mentioned,
except habeas corpus, were discretionary in England and in India.5
The language of article 32(2) is, unfortunately for this view, even more clear than what
Seervai allows. It is more clear because first the power is the power to issue 'directions, orders
and writs'. Second, the writs are inclusive of five typical writs but not exhaustive. New writs
could be evolved, which are unknown elsewhere. To say that this cannot happen is to impute
disingenuity to Indian lawyers and judges. Third, and equally important, the powers to issue
writs is the power to issue writs in the nature of five writs therein mentioned. So the fact of
their being discretionary in England is not constitutionally conclusive in India. The expression
writs 'in the nature of the five historic writs does not necessarily refer to the discretionary
nature of the writs. The words 'in the nature of rather refer to the mode of proceedings and
judicial order upon hearing and disposal of the same.
By the same token, the argument that the Supreme Court has treated article 32(2) as
discretionary as far as the issue of the writs is concerned is scarcely an argument for saying
that it is necessarily right in so doing. Golak Nath showed that an approach to amending
power employed by the court for nearly seventeen years may yet be declared wrong.
Indeed, Seervai himself seems to disagree with his above-quoted views. In his treatise on
constitutional law, he goes so far as to say that the judgments of the Supreme Court which
suggest, or state, that the grant of an appropriate writ under Art. 32 is discretionary, are not

4
See H.M. Seervai, "The Supreme Court, Article 32 of the Constitution and Limitation," 73 Bombay
L.R. (Journal) 35-38 (1969) at p. 37 and V.G. Ramachandran, "Is Article 32 a Discretionary Remedy
Subject to the Doctrine of Laches?'' 1969 (2) S.C.C. 21-34.
5
Id. at 37-8.

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correct because they overlook the difference between the English and the Indian law brought
about by Art. 32(1).6
Moreover, to say that article 32(2) power is not expressly coupled with a duty is to say the
right guaranteed by the Constitution has no co-relative duty or to say that the duty is
discretionary but the right is somehow fundamental. Such a statement is absurd from a strictly
analytical viewpoint.
The article 32(2) power is necessary to discharge article 32(1) duty. And article 32(2) is on
any approach a provision ex abundanti cautela. Suppose the constitutional text gave no
specific power to the court at all. Can it be seriously urged that the court, therefore, had no
power to discharge a duty cast upon it by the guarantee of fundamental right in article 32(1)?
When the constitutional duty and power are so explicit, it is scarcely necessary to have
recourse to tenuous denials of implied duty-power relation in article 32.
Furthermore, the meaning of the proposition that article 32(2) power is discretionary is not at
all clear. Discretion means choice. The Supreme Court may choose to issue a writ or not issue
it. None can seriously argue against the view that the power is discretionary in the sense that
if a case is not made out at all for the issue of a writ or a direction, the court may properly
decline to issue it. The words "for the enforcement of rights conferred by this Part" occurring
in article 32(1) and (2) make this very commensensical point abundantly clear. If the rights do
not need to be enforced because their violation is not proven, then no writs or directions need
be issued. But can we really maintain that the court has discretion whether or not to issue
writs, directions or orders if the rights need enforcement? Indeed not. Seervai himself
elsewhere argues that such refusal to issue writs to protect fundamental rights would be an
"abdication of the duty laid upon the Supreme Court".7 Indeed, Seervai himself (and quite
rightly so) argues that even under article 226 the 'discretion' enjoyed by the High Courts in the
issuing of the writs must be properly exercised in the matter of fundamental rights. This
means virtually that the High Courts must give relief if a case for relief is made out in a
matter involving fundamental right.8
The question whether relevant considerations as are routinely employed in administration of
justice should apply to article 32 is a question of policy and not merely a question of textual
analysis of article 32. It does not help clear thinking to coalesce two distinct questions. The
crucial questions here, tolerating no obfuscation, are: are considerations of public policy
underlying administration of justice—(embodied in doctrines like res judicata, laches, etc.)—
to be imported in enforcing fundamental rights, including the right to constitutional remedies?
If so, does the Constitution authorize the court to so do? These questions do not even begin to
emerge so long as we continue to pour our preferences and values in the text of the
Constitution which is compellingly clear.
To conclude this section, let us reiterate the following results of strict juristic analysis of
article 32. The article creates the following jural relations:

6
Seervai, Constitutional Law of India 624 (1968).
7
Id. at 625.
8
Ibid.

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18 Laches and the Rights to Constitutional Remedies

(i) a right in the allegedly aggrieved person to move the court by appropriate
proceedings and a duty in the court to be so moved for the enforcement of
fundamental rights;
(ii) this latter duty is coupled with power (by article 32(2)) vested in the court to
facilitate its discharge; the power has its correlative liability of the State for its
action to be judicially reviewed;
(iii) the court has the privilege to determine what 'proceedings' are 'appropriate' to
article 32 and no right of aggrieved person is violated by the court's exercise of
this privilege.

71
 CONCEPT OF RIGHT AND DUTIES:
PHILOSOPHICAL ANALYSIS

THE MODERN CONCEPTION OF RIGHT AND

ITS MARXIST CRITIQUE1

During the past few years academic literature on rights has been growing at a considerable pace. Since
most of it is written within the liberal-democratic tradition, it tends to concentrate on such questions as
whether we can meaningfully talk about natural, human or inalienable right, what criteria a right must satisfy
in order to be so called, what rights-if any-meet the requirement and which every state must be required to
guarantee, and how the economic and social rights differ from legal, political and civil rights. In this paper I
shall discuss two of the many questions that have received comparatively little attention.
First, in much of the literature on the subject it is taken for granted that the currently dominant
conception of right is somehow self-evident and represents the ‘only’ way in which the concept of right can
be understood. I propose to argue that it is relatively recent in origin, and does not go back much further than
the seventeenth century and is fraught with paradoxes and contradictions. Second, almost from its inception
the modern conception of right has been subjected to considerable criticism by such diverse groups of people
as the old natural law theorists, religious writers, socialist and the Marxists. They were deeply troubled by it,
and explored either an alternative conception of right or a society to which the concept of right was not
central. Since the Marxist critique of it is the most systematic and highly influential, I shall focus on it and
indicate the lines along which a richer and more satisfactory conception of right could be developed.
I
We have become so accustomed to conceptualizing human relations in terms of rights that we do not
appreciate that nearly all non-western and most pre-modern European societies managed, to do without
them. Not all of them were despotic or autocratic. In some of them men enjoyed many of the liberties
characteristic of a free society, such as security of life and possessions. They did not murder each other at
will, nor did their rulers deprive them of their lives-except according to established procedures and for
commonly agreed purposes. They also had possessions which they used as they pleased and bequeathed to
their children. They followed the occupations of their choice and enjoyed freedom of movement. Yet they
did not regard these are their rights or claims. They took these freedoms for granted, and enjoyed and
exercised them without in any way feeling self-conscious about them. Even as they had eyes and ears, they
had certain freedoms of which they did not feel the need to remind either themselves or others. Even
classical Athens, widely acknowledged to be the cradle of western democracy, managed to do without the
concept of right. Indeed, like many classical languages, classical Greek did not even have word for it.
The concept of right was first systematically developed in Rome, which was also the first western
society to develop the concept of the private realm and to insist on its relative inviolability and equality with
the pubic realm. For the Roman jurists, right, law and justice were inseparable and the term just was used to
refer to them all. Rights were created by the law, and the law was an articulation of the community’s
conception of justice. Law was associated primarily not with order as in the current expression ‘law and
order’, but with justice. Justice alone created and sustained order; and when dissociated from it, the law
became a source and an instrument of disorder. The concept of a right was inseparable from that of right. As
both of Gaius and Ulpain observed, a right consisted in enjoying what was right; and justice secured a man’s
right by ‘giving him his right.’
A Roman cive had several rights, such as the right to property, to discipline and to exercise the power of
life and death over the members of his family and household, to enjoy access to common land, and to
participate in the conduct of public affairs. These rights belonged to him not as an individual but as the head

1
Bhikhu Parekh in Upendra Baxi (ed.), The Right to be Human 1-22 (1987).

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36 The Modern Conception of Right and its Marxist Critique
of a family or pater familiae; and the family, not the individual, was deemed to be the primary subject of
rights.
The individual enjoyed rights because it was believed that only thus could the community realize its
general ends. He had no claim to the rights; and he did not enjoy rights as of right. The community conferred
them on him as the necessary conditions for the realization of its common purpose. A man’s legal personality
was made up of the interests and powers of action conceded to him by the social order, and justice consisted
in respect for each other’s legal personality.
Rights were subject to several constraints, and restricted in depth and scope. The law was not their only
source; customs, usages and traditions also generated rights, and these were in no way inferior. A right,
further, did not imply absolute control. One had a right to use but not to own certain things and one was not
free to do what one liked with the things one owned. Thus one was not free to sell one’s land, if it was
located at a certain place, substantial in area, or for generations had been inhabited by people. Under the
influence of the Stoic idea of naturalist ratio, the Romans also thought that certain things could not be
individually owned, for that ran counter to their ‘natural purpose’, and formed part of res extra commercium.
Above all, in their view the language of rights was limited in scope and inherently inapplicable to such areas
of life as familial and political and political morality. Rights pertained primarily to the civil society, not to
the state or the family and governed the relations between the individuals and not between them and the
state.
During the several centuries of feudalism, the picture was equally complex. Not only the individuals but
such traditional communities and groups as the cities, guilds and estates were also bearers of rights.
Individuals acquired rights by virtue of their membership of specific groups or by entering into certain types
of relationship. Rights were derived from several sources, of which the law was but one and not the most
important. The long established traditions, which defined the content of justice and rights, severely limited
the scope and authority of the law. Further, the concept of duty, not right, dominated the feudal society. The
king and his subjects, and the lord and his vassal, entered into quasi-contractual and unequal relationship,
and acquired reciprocal and limited duties. Each party was expected to act in the contracted manner because
he had a duty to do so, not because the other party had a right to require him so to act. The concept of duty
was logically prior to that of right, in the sense that the duties generated rights, not the other way round. And
the language of duties was for the most part considered self-sufficient in the sense that social relations were
deemed to be adequately conceptualized in terms of duties, without introducing the language of rights.
Further, private and public relations were never separated. A vassal’s right to his property, whether it
consisted in cultivating land, operating a mill or collecting a toll, entailed a public service of some specified
kind, such as military service and attendance at the lord’s court. Every private right had a public dimension,
and implied public and institutional obligations.
From the seventeenth century onwards, the traditional conception of right begins to undergo profound
changes. Broadly speaking, the changes occur in four areas, namely, the subject of right, its object, the
relations between the two, and the place of right in moral and political life. Let us take each in turn.
II
Unlike in pre-modern society where communities, traditional groups, guilds, corporations, families and
even land were bearers of rights, the modern conception of rights regards the individual as its primary bearer.
Groups do of course have rights, but these are derivative, and in principle reducible to those of their
members.
The concept of the individual is obviously complex and presupposes a theory of individuation. By the
very conditions of his existence, every man is inseparably connected with other men and nature. The
individual is not given by nature, but socially demarcated and defined. To individuate a man is to decide
where to draw the boundary between him and other men and nature. Individuation is thus a matter of social
convention, and obviously different societies individuate men and define the individual differently. The
ancient Athenians saw man as an integral part of nature and society and believed that a man taken together
with his land and political rights constituted an individual. Almost right up to the end of the Middle Ages, a
craftsman’s tools were believed to be inseparable from the man. They constituted his ‘inorganic body’ and
were just as much an integral part of his self as his hands and feet. To deprive the craftsman of his tools was

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37 The Modern Conception of Right and its Marxist Critique
thus to mutilate him, and he was not free to alienate them. For the Hindus the set of social or caste relation
into which an individual is born are an inseparable part of himself, and define him as an individual. The
Chinese view the family as an indissoluble organism. Linking the ancestors and their descendants into a
living union, and have a highly complex conception of the individual.
The seventeenth century writers define the individual in extremely narrow terms. For them the naturally
given biological organism, neatly encapsulated in the body, constitutes the individual. As a neatly self
enclosed natural organism, each human being constitutes a self-contained unit. The limits of his body are
taken to be the limits of his self. He appropriates the world by means of his senses and reason, and creates an
internal world of sensations, ideas, feelings and experiences. Everything lying outside the outer surface of his
skin constitutes the ‘external’ world and does not form an integral part of his self; everything lying ‘within’ it
is internal to and an indivisible part of his self. In this way of thinking the center of each individual is firmly
located within himself. Others can enjoy varying degrees of closeness to him, but only he can constitute the
center or axis of his life.
With the modern naturalist or physicalist conception of the individual, the body acquires unprecedented
ontological, epistemological, moral and political significance. It becomes the criterion of reality in that an
individual is deemed to be real and to exist as long as he inhabits a living body. Its dissolution represents his
dissolution. Life, the continuation of the body in time, and liberty, the unhindered moment of the body,
become two of the highest moral values. Violence is defined in physical terms so that the infliction of
physical harm is violence, but that of psychic or moral harm is not. A man’s freedom is deemed to be
restricted when he is physically restrained from moving as he pleases, but not when his ideas or beliefs or
emotions are conditioned and moulded. Morally, it is physical more than any other type of suffering that
dominates the moral imagination. If one saw someone crying, dying, starving, one might find that one ought
to do something about it; but if one saw a child frustrated from developing his abilities for want of money, or
a man in despair for lack of gainful employment, one would not generally see that a moral problem was
involved and that its redress was just as urgent as the prevention of death.
III
The second important change which the concept of right undergoes during and after the seventeenth
century relates to its scope. The earlier constraints on what can legitimately become an object of right, and
how far a right can extend, more or less disappear. The natural world gets desacralised. It is no longer seen
as a quasi-rational and moral whole, or even as an autonomous world of living beings endowed with measure
of dignity, but rather as a material world, a world of ‘dead matter’ which man, its sovereign master, is free to
plunder at will. Everything in the natural world therefore becomes an object of right, and capable of
alienation.
Land, which in earlier centuries was invested with rights and whose alienation was subject to restraints,
could now be freely bought and sold. In the earlier centuries, again, property largely meant the right to a
revenue rather than to a thing, and it consisted in rights in rather than to things. The great bulk of property
was in the form of land, and in the case of substantial estates the owner was not free to sell this. His property
comprised the revenues accruing from his land. Another large segment of individual property consisted in
the right to a revenue from such generally non-saleable things as corporate characters, monopolies and
various political and ecclesiastical offices.
From the seventeenth century onwards, the right to property comes to imply the right to dispose to things
as one pleases; and thus a more or less absolute and exclusive right to own, use and alienate them. In the
earlier centuries, again, common land was regarded as an important part of communal life; and people had a
right of access to it. After the seventeenth century, common land more or less disappears, and is privately
divided up.
Even as the natural world is reduced to the material world and viewed as a collection of material
objects, the human being is reduced to a collection of capacities and powers, almost all of which could be
alienated and made objects of rights. In order that an individual can alienate and give others rights over his
powers and capacities, two conceptual conditions must be satisfied. First, he himself must be presumed to
have a right to them; that is, he must view them as his property-as things he owns and is free to dispose of at
will. If for example, he were believed to be a custodian of his capacities and powers which he held as a trust

74
38 The Modern Conception of Right and its Marxist Critique
from god, society or mankind, he would obviously not be free to alienate them at will. Second, he must be
presumed to be somehow separate from them, so that he does not sell or alienate himself when he sells or
alienates them.
Both these conditions obviously require a new definition of man, of the nature and basis of his dignity,
freedom and personal identity. In order to say that his freedom is not compromised when his abilities, skills
and activities are placed at another man’s disposal, he needs to be defined in the barest possible manner.
Since almost everything about an individual is considered alienable, the crucial question arises as to what is
to be considered essential to his human identity such that its alienation of his alienation, and his loss of
control over it amounts to a loss of his humanity. The theorists of the modern conception of right locate his
essential humanity in the interrelated capacities of choice and will. For them they represent man’s
differential specificia, and are the bases of human dignity. The individual differs from the rest of the universe
in possessing the two basic capacities of reason and will. Thanks to them, he is capable of freedom and self-
determination. As long as he is not physically over-powered, hypnotized or otherwise deprived of his powers
of choice and will, he is considered to be autonomous; his actions are uniquely his, and therefore his sole
responsibility. It does not matter how painful his alternatives are, how much his character is distorted by his
background and upbringing, and how much his capacities of choice and will are debilitated by his
circumstances. As long as he is able to choose, his choices and actions are his responsibility.
The individual is abstracted from his social background and circumstances, which are not therefore co-
agents of, and co-responsible for his actions. He stands alone, all by himself, stripped of his social relations,
circumstances and background, facing the world in his sovereign isolation and, like god, and the traditional
distance between a man and god almost disappears.
When the individual is so austerely conceived, the question arises as to how he is related to his alienable
bodily and mental activities and powers. They cannot be conceived as his modes of being, the manner in
which ‘he’ expresses himself and exists for himself and for others. They can be understood only as things he
possesses. Modern writer appropriately define them as his properties, which in legal language become his
possessions. If ‘he” referred to the totality of his being and not merely to the capacities of choice and will,
his powers and activities would be seen as an integral part of his self, as constitutive of his self, and therefore
not as his possessions which he could dispose of ‘at will’. He would not be able to alienate them any more
than he could alienate his will or choice. And his so-called ‘freedom’ to sell his capacities and activities
would appear not as freedom, but slavery.
Once the subject and the object of rights were defined in this way, certain rights became most important,
especially the rights to life, liberty and property. Each came to be defined in narrow and restricted terms.
Thus the right to life was taken to mean the right to be free from physical harm by other men; but not the
right to material sustenance without which life is impossible, or the right to be free from in sanitary
conditions of work or an unhealthy living environment or excessively long hours of work-all of which
directly or indirectly reduce the span of life. The right to be free from the arbitrary will be other, including
the government, and to participate in the conduct of public affairs, did not include the right to be free from
the arbitrary will of employees or reduce their wages at will. As for the right to property, it meant the right to
acquire property and to have it defended against others’ interference; and not what it literally meant, the right
to (possess at least some) property. We need hardly discuss why only these rights, and not such other rights
as personal development, self-respect, employment and education, were emphasized; nor even why they
were so narrowly defined.
Another important change occurred in the second half of the nineteenth century. The rights of life,
liberty and property that had so far been emphasized were all rights to protection, in the sense that the only
things their agents required to enjoy or exercise them were forbearance or non-interference by their fellow
citizens, and protection by the government. In the nineteenth century social and economic rights were added
to the list. Now, obviously, these have a very different character. They are not rights to protection but
provision-the provision of sustenance, the means of material of well-being, employment and even basic
opportunities for personal growth. As such, they require the government to play a positive and active role in
economic life. They also imply that, in order to meet the social and economic rights of those in need, citizens

75
39 The Modern Conception of Right and its Marxist Critique
should not merely forbear from interference, but positively contribute by taxes and other means to the
resources which a government requires.
These new rights thus called a radical change in the prevailing views on the role of the government and,
more importantly, in the nature of the state. If the citizens of a state are to be required to help those in need,
not as matter of duty entailed by the latter’s legal or moral rights, it can no longer be seen as a mere
collection of self-contained and atomic individuals united by allegiance to a common authority. Instead, it
becomes a community of interdependent individuals, each caring and concerned about the way the others
live, that is, a political community as different from a mere civil society. The new social and economic rights
thus presuppose a very different view of man and society to the one underlying the old trinity of rights to
life, liberty and property. Not surprisingly, a long and sometimes bloody struggle had to be undertaken
before they were taken seriously. Even they were recognized as legitimate rights, their underlying
assumptions were not. Not surprisingly, they continue to enjoy a precarious existence, and their recipients
are treated as an inferior and sub-human species.
IV
The third important change since the seventeenth century has occurred in the way the concept of right is
defined. The modern concept of right represents a novel and explosive combination of some of the features
that it shares in common with its pre-modern cousins, and several other that it acquired for the first time in
the seventeenth century. As it is commonly understood, a right has the following features.
First, a right is a claim. To say that ‘A has a right to B’ is to say that A possesses B not because others
have kindly allowed him to acquire or enjoy it, but because he has a claim to it which others must recognize
and respect. His claim is wholly independent of their personal feelings and sentiments towards him and
requires a specific pattern of behaviour from them.
Second, the claim has the nature of a title and its bearer is entitled to make it. His claim is not arbitrary,
but based on recognized procedures. Every bearer of a right is a title-holder, and able, when challenged, to
point to his title-deed.
Third, the title is conferred upon him by the established legal authority, the generally acknowledged
source of all titles within a territorially organized source of all titles within a territorially organized
community. When challenged, the bearer of a right can point to a specific law which has given him the title.
Since both he and others must know what he is entitled to own or enjoy and what he and they may or may
not do, the law must publicly and unambiguously announce the title. The modern concept of right thus
requires that customs, traditions and usages should all be replaced by the civil law as the sole and exclusive
source of right. Not that they all disappear; rather they have no legal force or relevance unless the law takes
cognizance of their existence and confers legal status upon them. The modern concept of right necessarily
requires the modern concept of sovereignty as its logical correlative.
Fourth, to have a right is to be free to do what one likes with it in conformity with the condition of its
grant. The modern concept of right places minimum restraints upon its exercise. For A to have a right to B
means that he may give it away, store it up, destroy it and in general dispose of it in the way he pleases.
Similarly, for A to possess a right to have C return his books, or repay his money, or render the contracted
service, means that he can demand it of C irrespective of whether he needs these things, or C needs them
more than he does, or C is in a position to do what he is required to do.
Fifth, to have a right to a thing means not only that one can do what one likes with it if it is within the
legally prescribed limits, but also that others are excluded from access to it. The concept of exclusivity is
built into the modern concept of right. It is not inherent in the concept or fight itself for, as we saw, in several
pre-modern societies, a man’s enjoyment of a right did not prevent others from gaining access to its objects
if their need for it was urgent or greater.
Sixth, a right not only excludes others but also requires a specific set of services from and imposes
hardship on them. Minimally, they are required to refrain from interfering with it. At a different level, they
are also required to make financial contributions towards the maintenance of the apparatus of the state which
is required both to create and protect rights. A starving man, or one whose wife is dying for want of money
to buy medicine, is naturally tempted to help himself to the surplus resources of his neighbour. The latter’s

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40 The Modern Conception of Right and its Marxist Critique
right requires him to resist the temptation, even at the risk of his own or his loved one’s life. Again, rights
impose a considerable moral burden. The rich man’s right to do what he likes with his wealth, engage in
conspicuous and wasteful consumption, buy and sell property, or set up an industry tends to damage a poor
man’s pride, self-respect and sense of dignity. It also set a vulgar social trend corrosive of traditional moral
values, destroys long established communities and tends to weaken civic pride and unity.
A right then is at once both a source of benefits and burdens. It benefits its bearer, but only by imposing
legal disabilities loss of liberty, suffering, and emotional, moral, cultural and financial burden on others.
Different rights impose different kinds of degrees of burden upon others. For example, the right to life
imposes fewer or lighter burdens than the right to property; for the former requires of others no more than
self-restraint, whereas the latter imposes the additional social, economic and moral costs referred to earlier.
Again, the burdens imposed by the rights exercised by all are easier to bear than those by the rights
restricted to a few. For example, the right to life is in practice enjoyed and exercised by all, and the burdens
which it imposes are fairly distributed; whereas the right to property has virtually no meaning for those
unlikely to own it. The meagre property which a poor man might possess imposes infinitely fewer burdens
than the vast investment of an industrialist.
The equality of rights is therefore an ambiguous and misleading expression. All citizens may formally
possess rights. However, since some rights make far greater demands on others and are in that sense more
costly, expensive or burdensome, those in a position to exercise them impose far greater burdens upon their
fellow-men than those who are not. The modern doctrine of rights treats them as homogeneous entities of
identical weight, and ignores the differences in their nature, structure and consequences.
Seventh, a right is legally enforceable. To have a right implies that the state stands guard over a specific
area of action, and punishes those who dare to transgress it. Every bearer of right has at his disposal the
entire coercive machinery of the state which he can activate when his right is threatened. A right thus is a
form of power, a share in the exercise of the state’s sovereignty. Indeed to have right is to have a lease of the
state for a specific purpose, for a specific period of time.
Eighth, since a right is a formal title conferred by the state, one’s possession of it is not dependent on
one’s ability to exercise it. A man continues to possess and, strange as it may seem, ‘enjoy’ a right of life –
even when he is dying for lack of food or medicine, or works in an asbestos factory or under conditions that
make premature or painful death a virtual-certainty. Similarly, he possesses the right to sue his employer for
breach of contract, even if he lacks the money to hire a lawyer and may never be able to exercise the right.
And he enjoys the right to liberty, even when it is drastically curtailed by the power others wield over him. In
short, the modern right is a strange ontological entity; it exists even when it is not a worldly reality, and one
can possess it even if one can do nothing with it. By its very nature the modern concept of right is biased
against those lacking the resources to exercise it. It promises them opportunities they can rarely enjoy, and
which tantalize them but systematically elude their grasp.

V
We have outlined three important changes the concept of right has undergone since the seventeenth century.
We may now turn to the last one, namely, the enormous importance it has acquired as the central organizing
principle of modern society. In pre-modern societies the moral conduct had many sources, such as communal
loyalties, common sentiments and affections, traditional ties, customary duties and common interests and
men cared for each other for one or more of these reasons. Indeed, each of them was tied to others by so
many bonds that he did not define himself and his interest in isolation from, let alone in opposition to them.
From the seventeenth century onwards, social life changes radically. Communal ties and customary
bonds disappear; men begin to define themselves as free individuals, with no ties to each other save those
they have chosen to establish; and no duties other than those entailed by such ties. Lacking the background
of traditional bonds and localities they cannot obviously take these constraints for granted. They do not, of
course, need to assume that others are all vicious men determined to harm them; rather that in the absence of
traditional restraints they cannot take any chances. Each must therefore look after his own interest, and
devise ways of protecting them against the invasion of others who are at best indifferent and at worst hostile.

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41 The Modern Conception of Right and its Marxist Critique
A group of equal, self-interested, self-assertive, otherwise unrelated and mutually suspicious individuals
necessarily requires the modern state to hold them together. They recognize no authority save that of
impersonal rules and the centralized public authority as their sole legitimate source. The state is based on
rules and enjoys that monopoly of legislation. In order to enforce laws and protect rights, the state must
enjoy also the monopoly violence. In short the modern state, a unique historical institution, characterized by
such features as centralized authority, monopoly of violence, impersonality, the rules of law and protection
of individual rights, comes to replace earlier forms of organizing the community. It represents a particular
kind of order and a particular manner of creating and sustaining it. The order consists in the maintenance of a
clearly established system of rights and obligations; it is structured in terms of rules, especially laws; and it is
underpinned by the state’s monopoly of violence.
Order in modern society is articulated in terms of a system of rights and obligations created by the law.
Law created civil morality as the primary and dominant form of morality in it and it is articulated in the
idiom of rights, obligations and duties. Morality entails a scrupulous regard for each mother’s rights. One
fights for one’s rights, but at the same time respects others’ rights.
In a right-centered society every man is not a wolf to everyone else. People do show respect for each
other, but the respect is confined to a regard for their rights. In order that A can expect or ask B to do X for
him, he must establish that he has a right to require B to do so. If he does not have a right, B has no duty; and
in the absence of a duty he cannot see why he would do it. When A has a right and B a corresponding duty,
B may discharge his duty because he may fear punishment, or because he may have internalized, that is,
developed a character adequate to civil morality and act out of respect for A’s right, or for the law which
gives him the right, or because he may conclude that rationality or consistency requires him to respect A’s
right even as he wants A in turn to respect his. Whatever his reasons and motives, a right-based society rests
on civil morality and requires no deeper moral motivation.
Since civil morality is the basis of modern society and dominates its public life, it predictably casts a
long and deep shadow over all areas of human life, and determines the way these are conceptualized and
talked about. Thanks to its domination, when men do good to others that is not apparently entailed by the
latter’s rights, they feel uneasy unless they can somehow show that their conduct is really a response to some
unspecified rights of theirs. They postulate another category of rights, usually moral or natural or human
rights, attribute these to others and view their own actions as duties entailed by them. They might intuitively
feel that, either individually or collectively through the states, they ought to relieve distress, help their
potential, but they feel unable to explain the ‘ought’ except as an act of charity or a mark of respect of their
rights. And since the former turns them into helpless objects dependent upon others’ contingent goodwill,
they opt for the language of rights. They do not think it enough to say that they love their fellow-men, are
deeply concerned about them, feel a sense of solidarity towards them, or feel guilty about their own
undeserved privileges. Thanks to the fact that they live in a society almost wholly governed by the morality
of rights, such moral emotions have either dried up in them, or they feel nervous and shy about admitting
their existence. They have become so conditioned into thinking that every duty presupposes a right, that
human dignity can be preserved only by endowing men with rights, that a right is the only alternative to
charity, and so on, that a morality not based on rights somehow seems gravely inadequate or deeply flawed.
This is not to say that human beings do not have moral or other kinds of non-legal rights. Rather that the
postulation of such rights often springs from the inability to conceptualize moral relation in terms other than
rights, and sustains a right-obsessed moral ethos.
Sometimes the right-centered moral thinking is taken to strange extremes. We would all agree that
parents ought to look after their children and bring them up in a environmental of love and warmth. As the
writings of Plato, Aristotle, Augustine, Aquinas and Hegel show, the ‘ought’ in question can be derived in
several different ways. The tendency since the seventeenth century onwards is to contend that children have
rights to parental maintenance, love and even inheritance, and that parents have corresponding duties. What
is generally a matter of love is first reduced to a duty, and then the duty is conceived as a demand originating
from the child’s right. To many pre-modern society this whole manner of thinking would have appeared
perverse, even offensive. Parents have freely brought their children into the world, care for them, love them
and make spontaneous sacrifices going far beyond the call of duty, and do not need to be morally
bludgeoned into loving their children by the latter waving their legal or moral title-deeds. The relations

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between the two is not and can never be reduced to that between two strangers. The family is not a civil
morality. It is of course true that parents might occasionally ignore their children’s needs and even maltreat
them. However, such occasional lapses cannot justify a radical reinterpretation of the whole pattern of
relationship. In any case they can be punished, if necessary without introducing the language of rights.
In the modern right-based society then, moral life undergoes radical transformation. Rights acquire a
monopoly of moral legitimacy, and nothing has any or at least much value unless it is directly or indirectly
related to and articulated in the vocabulary of rights, titles and claims. Even the most basic human needs do
not generate an appropriate moral response unless those involved are shown to have a right to their
satisfaction. Further, almost all types of morally desirable or commendable conduct are reduced to duties
entailed by others’ actual or hypothetical rights. On the mistaken assumption that whenever there is a smoke
of duty, there must be a fire of right smouldering somewhere in the background, we conceptualize duties as
response to rights. The duties to god, animals, friends, parents and the state are all mistakenly construed as
responses to the rights allegedly possessed by their respective recipients.
In a right-based society, the moral and political discourse gets assimilated to the juristic discourse. Moral
and political disputes come to center around who has the rights to enjoy what, and how best these can be
secured. Further, we are afraid that the state might not create these rights or arbitrarily curtail or withdraw
them. We, therefore, feel the need to show that we have the rights to these rights, the titles to these titles. To
avoid infinite regress, we feel compelled to derive the right to rights from such allegedly indisputable nature,
human nature, moral intuition, the structure of the universe, the original condition, the moral law and god.
Most of contemporary literature on rights is centered upon the inherently suspect exercise of finding such
allegedly unshakeable foundations for rights.
VI
Like many other thinkers from the eighteenth century onwards, Marx subjected the modern conception
of right to a searching critique. He developed his critique in three stages, first from a radical democratic
standpoint, then from the perspective of a rather simplistic and reductionist theory of historical materialism,
finally from that of its more sophisticated version. Although the languages and degree of penetration of his
critique varied with each stage; its basic thrust and direction remained substantially the same.
Marx’s critique of the modern conception of rights is too well known to require detailed elaboration. For
him, it is basically an ideological rationalization of the capitalist society. As he understand it, the capitalist
society has two conflicting requirements. First, since labour power is the sole source of surplus value, the
capitalist society is compelled by its inherent logic to view man as a commodity or an alienable object.
Second, since it is based on voluntary transactions between free individuals, it is compelled to define man as
a self-determining being or a free subject. The logic of capitalism thus requires it to define man both as a
subject and an object, a self-determining human being and a commodity.
The dominant ideology of the capitalist society meets the conflicting requirements and reconciles its
contradictory social pre-suppositions by advancing a dualistic theory of man. As an empirical being, man is
regarded as an object whose skills, services and powers can be alienated. He is also however invested with
the juridical form of a person, and qua person he is regarded as a subject enjoying equality with other
persons. The real living man who possesses powers and capacities is a saleable commodity; whereas his
abstract and empty juristic personality or form is inviolable. Man is a ‘profane’ object capable of being
bought and sold, whereas the formal person is sacred. The bourgeois society thus locates man’s subjectively
and dignity in a mere abstraction.
The bourgeois legal theory takes over this view of man and gives it a juristic expression in the theory of
rights. Not a human being but a juristic person is invested with rights, and since the former is abstract and
formal, so are his rights. The rights belong to the individual not as a concrete and socially situated human
being occupying a specific position in society, but as a socially transcendental abstraction, as a more juristic
fiction. Equality in the capitalist society is therefore equality of (abstract) persons, not of (concrete) human
beings. As concrete and socially situated beings, men belong to different classes and possess unequal
resources, and are obviously unequal in their powers, capacities and opportunities. Although the rights they
possess are equal, those they exercise or enjoy are therefore necessarily unequal. The formal equality of
rights is thus little more than a device to veil and legitimize the stark reality of inequality.

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For Marx the modern theory of rights also alienates man from his fellow-men and destroys the unity of
the human species. Rather than appreciate man’s social nature and institutionalize and nurture human
interdependence, the capitalist society is compelled by its logic to isolate and privatize men. Being a
competitive and exploitative society, it necessarily presupposes isolated and egoistic men aggressively
pursuing their narrow and exclusive interests. The modern theory of rights is a juristic expression of this. It
institutionalizes isolation, legitimizes the egoistic pursuit of self-interest, and turns each individual into an
‘isolated monad, withdrawn into himself.’ ‘A limited individual who is limited to himself’. It draws a
boundary around each individual which others are forbidden to cross, and confines him to his clearly
demarcated and fully fortified world.
By dividing up society into a cluster of little islands, the modern theory of rights conceals the reality of
classes. Since a worker is free to leave one capitalist employer and work for another, he entertains the
illusion that he is a self-determining individual freely deciding who to alienate his labour power. His
personal freedom remains grounded in and severely circumscribed by his class slavery. The modern theory
of rights, further, encourages the worker to think of himself primarily as a distinct individual, and thus
weakens the objective unity of the working class. Since it heightens his consciousness of himself as a self-
contained and self-enclosed individual constantly concerned to exclude and distance others, he fails to
appreciate the class basis of his social being. The modern doctrine of rights creates a hiatus between his self-
consciousness and his being, and prevents the emergence of class consciousness and class solidarity. It thus
helps perpetuate the exploitative capitalist mode of production and is inherently ideological.
It is not entirely clear what conclusions Marx intended to draw from his critique of the modern theory of
rights. The lack of clarity has encourages some Marxists to draw two dubious conclusions. First, they argue
that rights in the capitalist society are little more than devices of ideological legitimation and, like the state
which grants and protects them, instruments of class domination. They obscure the harsh reality of class rule
and create the illusion of genuine equality between free and self-determining individuals. For these Marxists
the ideological nature of bourgeois rights receives further confirmation from the fact that the capitalist state
respect the rights only as long as they do not threaten its existence and jettisons them the moment they do.
The rights are therefore a mere ‘camouflage’, having little value and hardly worth fighting for. Indeed, since
they conceal the reality of class struggle and lull the working class into a false sense of security, their
disappearance is ultimately a boon.
Second, some Marxists argue that the very idea of right is bourgeois in nature and has no place in the
communist society. As a distinct judicial product of the capitalist mode of production, it must of necessity
disappear with the latter. The idea of right owes its origin to the two basic historical facts of material scarcity
and unsocial individuality. In the communist society, scarcity is replaced by material abundance, and hence
there is no need for the institution of right. Since men in the communist society are fully social and do not
invade each other, they again do not need an essentially aggressive system of rights to protect themselves
against each other.
Although some of Marx’s polemical remarks may seem to support it, the first conclusion is obviously
untenable. It is based on a mistaken interpretation of his theory of ideology. For Marx the logic of the
capitalist society requires its dominant ideology to satisfy two contradictory demands. First, it must justify
the prevailing system of inequality and exploitation. Second, since the capitalist society is based on freely
negotiated contracts, the justification must be based on the general principles of freedom, equality and
individual rights. The bourgeois legal and political theory must thus rest on egalitarian premises and draw
inegalitarian conclusions; it must swear by human dignity and justify man’s reduction to a commodity. In
other words it is condemned by its provenance to remain inherently self contradictory.
Every component of bourgeois legal and political theory, be it liberty, equality, right, law, or state, is
vitiated by this inescapable contradiction. The common mistake, or illusion as Marx calls it, consists in not
fully appreciating their self-contradictory character. Thus in the capitalist society men have formally equal
but substantively unequal rights. To believe with the bourgeois writers that all men in fact enjoy equal rights
in the capitalist society is to entertain an illusion. However, the rights themselves are not illusions. The
illusion consists in mistaking them for what they are not, in taking them to be more than what they really are.
That the doctrine of equal rights formally recognizes the equality of all men and gives institutional

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recognition and protection to the dignity of all men is not an illusion but a legal fact much to be valued and
fought for. To imagine that the equality of legal persons is or amounts to the substantive equality of concrete
men is an illusion. For Marx the bourgeois society is compelled by its inner logic to advocate and
institutionalize the theory of equal rights. In so doing it provides a weapon that can be turned against it. The
task of the working class is to accept the theory as its starting point, use it to expose the prevailing
inequalities, and exert collective pressure to give it a new content. The bourgeois society cannot be fought in
terms of abstract and transcendental ideals derived from outside it, but only in terms of those that are
immanent in it and to which it itself subscribes.
For Marx, far from being illusions, right in the capitalist society in fact restrain the state, subject the
capitalist class to certain norms and provide the conditions under which the working class can organize and
grow. It is of course true that the state does suspend them, it weakens its authority in the eyes of its own
functionaries as well as many of its subjects, including some members of the capitalist class. Further, to say
that the rights are illusory is to imply that there is not real difference between a liberal democratic state on
the one hand and a Bonapartist or fascist state on the other. Marx explicitly rejected such a view.
As for the second conclusion, it too is mistaken, although there is some support for it in Marx’s writings,
and hence its continued appeal. In the mature period of his life, Marx was so heavily preoccupied with the
economic analysis of the capitalist mode of production that he did not offer comparable detailed critique of
bourgeois legal and political theory. At the same time, he could not avoid making remarks about it, and these
by their very nature were general and sweeping and open to dubious interpretations. Further, he tended to
present the communist society as qualitatively different from the capitalist, and encouraged the belief that it
therefore excluded all that was characteristic of the latter. Again, Marx’s distinction between form and
content, or shell and kernel, seems to imply that only the content of the capitalist society is valuable and
worth preserving. Although the distinction is suspect and even perhaps invalid, it might not have done much
damage if Marx had provided a clear criterion for deciding what was to count as the form and what as the
content of capitalism. He did not furnish such a criterion, and tended to regard all that pertained to the realm
of thought and institutions as the form and the productive forces as the content of the capitalist society. Marx
did not carefully examine the concept of form either. He well knew that the content was inseparable from the
form, and could not be taken over without taking over at least some aspects of the form. This meant that he
needed to develop a method of subjecting the form itself to a systematic critique and separating its
permanent features from the merely transitory.
From the dialectical point of view, the juristic form of the bourgeois society cannot be entirely
bourgeois; it is bound to have features that point beyond the bourgeois society and require to be preserved.
Historical progress cannot consist only in the continuity of the technological content, it must include also the
preservation and consolidation of the different dimensions and forms of individuality achieved by mankind
during successive historical epochs. In short the distinction between form and content was not enough; an
analogous distinction needed to be drawn at the level of the form as well. Marx did not explicitly work out
such a deeper conception of critique.
In spite of these and other ambiguities and confusions, a careful reading of Marx suggests that he did not
intend to reject the modern theory of rights altogether and his attitude to it was subtle and discriminating.
When he rejected the bourgeois conception of the isolated and atomic individual, he rejected also the
opposite view that the individual was nothing more than an indissoluble part of the social organism. For him
this kind of collectivism was characteristic of the tribal society over which bourgeois individualism
represented a great historical advance.
Further, for Marx the communist society transcended the very dualism between individuals and society,
as a network of relations among them. It could not therefore aim to destroy individuality; to the very contrary
it aimed to preserve and develop it. For Marx individuality was a great bourgeois achievement secured, no
doubt, under hostile conditions, and hence profoundly distorted. As such his task was to purge it of its
bourgeois distortions, not to reject it altogether.
For Marx individuality cannot be protected indeed the consciousness of it cannot even emerge, let alone
be sustained, unless it has an objective basis in society. It requires an institutional recognition in the form of
rights and a material basis in the form of personal (though not private) property. In the absence of both, the

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individual lacks social and material objectification and remains abstract and illusory. To claim to respect the
individual and at the same time not to provide for his institutional and material objectification is to be quality
of idealism. The great lesson Marx learned from Hegel was that the subject and the object constituted a unity
and that the subject without a corresponding objective correlate was abstract and unreal. This is indeed how
he explained the rise of individuality in Athens and Rome and its absence in India. Although he did not stress
the point explicitly, the very logic of his materialist epistemology required him to recognize and stress rights
and personal property as the necessary basis of individuality. To put the point differently, even as Marx did
not reject the bourgeois concept of individuality but only its distortions, he did not reject the bourgeois
concept of right but only its perverted forms.
Even Marx’s ideal communist society then needs a theory of rights. The theory is obviously very
different from the one that has been dominant for the past three hundred years. Not an abstract juristic person
but a human being becomes the bearer of rights. Human being now define themselves as social and creative
being concerned fully to develop such distinctively human powers as the intellectual, moral, emotional and
aesthetic. And it is their development rather than the accumulation of property, the unhindered pursuit of
private interest and the exercise of power over others that now becomes the object of rights.
Further, by their very nature, these and other human capacities and powers are such that they can be
developed only in co-operation with others. Indeed, they are inherently non-competitive and non-conflictual
in the sense that, far from hindering others, their development by one man stimulates and inspires others to
develop them as well. The changes in the objects of right therefore entail profound changes in human
relationships. Rights in the communist society are not defined in exclusive and possessive terms, and men do
not constantly look over their shoulders in nervous fear or run for safety from others invasive presence. They
develop cooperative rather than competitive dispositions and seek ways of building co-operation into the
very structure of their society. A good deal of what they need from each other thus comes to be
spontaneously offered. Conflicts cannot of course be wholly eliminated. However, they are now removed by
persuasion, appeals to shared purposes and recognition of common interests and moderated by a deep sense
of mutual concern built up over time and nurtured by social institutions. In a society based an trust,
cooperation, mutual help and goodwill, the law has a very limited role to play, and is directive and advisory
rather than punitive in orientation. Rights are therefore no longer the sole bases of social morality. The
communist society is able to evoke and utilize many a noble human emotion and sentiment; the motives of
self-interest and fear lying at the basis of modern society play only a minor role.
This inescapably sketchy and tentative outline of the kind of theory of rights that can be teased out of
Marx’s writings has been designed to highlight two points. First, Marx does not and cannot dispense with the
concept of right altogether. Marxists commit grave mistakes when they argue that individuality is a
bourgeois illusion and has no place in the communist society. That it can somehow be protected without
some institutional provision of rights, that the communist society consists of angels who never interfere with
each other, or that it is somehow free from the intractable problem of coping with conflicts and
disagreements.
Second, Marx’s thought is capable of offering an alternative theory of rights to the one currently
dominant. Although the liberal ideologists might wish us to think otherwise, it is possible to define the
concept of right in a non-possessive, non-absolutist, non-exclusive and non-aggressive manner, to propose
other rights than those emphasized during the past three centuries, and to visualize a sensitive society in
which men are grown up and caring enough to offer their co-operation without having to bludgeon each
other with their titles and rights.

*****

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 PERSONALITY

The Rights of Animals and Unborn Generations 

EVERY PHILOSOPHICAL PAPER must begin with an unproved assumption. Mine is the
assumption that there will still be a world five hundred years from now, and that it will
contain human beings who are very much like us. We have it within our power now, clearly,
to affect the lives of these creatures for better or worse by contributing to the conservation or
corruption of the environment in which they must live. I shall assume furthermore that it is
psychologically possible for us to care about our remote descendants, that many of us in fact
do care, and indeed that we ought to care. My main concern then will be to show that it makes
sense to speak of the rights of unborn generations against us, and that given the moral
judgment that we ought to conserve our environmental inheritance for them, and its grounds,
we might well say that future generations do have rights correlative to our present duties
toward them. Protecting our environment now is also a matter of elementary prudence, and
insofar as we do it for the next generation already here in the persons of our children, it is a
matter of love. But from the perspective of our remote descendants it is basically a matter of
justice, of respect for their rights. My main concern here will be to examine the concept of a
right to better understand how that can be.
THE PROBLEM
To have a right is to have a claim1 to something and against someone, the recognition of
which is called for by legal rules or, in the case of moral rights, by the principles of an
enlightened conscience. In the familiar cases of rights, the claimant is a competent adult
human being, and the claimee is an officeholder in an institution or else a private individual,
in either case, another competent adult human being. Normal adult human beings, then, are
obviously the sorts of beings of whom rights can meaningfully be predicated. Everyone
would agree to that, even extreme misanthropes who deny that anyone in fact has rights. On
the other hand, it is absurd to say that rocks can have rights, not because rocks are morally
inferior things unworthy of rights (that statement makes no sense either), but because rocks
belong to a category of entities of whom rights cannot be meaningfully predicated. That is not
to say that there are no circumstances in which we ought to treat rocks carefully, but only that
the rocks themselves cannot validly claim good treatment from us. In between the clear cases
of rocks and normal human beings, however, is a spectrum of less obvious cases, including
some bewildering borderline ones. Is it meaningful or conceptually possible to ascribe rights
to our dead ancestors? to individual animals? to whole species of animals? to plants? to idiots
and madmen? to fetuses? to generations yet unborn? Until we know how to settle these
puzzling cases, we cannot claim fully to grasp the concept of a right, or to know the shape of


Joel Feinberg, “The Rights of Animals and Unborn Generations” in Philosophy & Environmental
Crisis by William T. Blackstone (ed.), pp. 43-68 (1974).
1
I shall leave the concept of a claim unanalyzed here, but for a detailed discussion, see my "The
Nature and Value of Rights," Journal of Value Inquiry 4 (Winter 1971): 263-277.

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The Rights of Animals and Unborn Generations 123

its logical boundaries.

One way to approach these riddles is to turn one's attention first to the most familiar and
unproblematic instances of rights, note their most salient characteristics, and then compare the
borderline cases with them, measuring as closely as possible the points of similarity and
difference. In the end, the way we classify the borderline cases may depend on whether we
are more impressed with the similarities or the differences between them and the cases in
which we have the most confidence. It will be useful to consider the problem of individual
animals first because their case is the one that has already been debated with the most
thoroughness by philosophers so that the dialectic of claim and rejoinder has now unfolded to
the point where disputants can get to the end game quickly and isolate the crucial point at
issue. When we understand precisely what is at issue in the debate over animal rights, I think
we will have the key to the solution of all the other riddles about rights.
INDIVIDUAL ANIMALS
Almost all modern writers agree that we ought to be kind to animals, but that is quite another
thing from holding that animals can claim kind treatment from us as their due. Statutes
making cruelty to animals a crime are now very common, and these, of course, impose legal
duties on people not to mistreat animals; but that still leaves open the question whether the
animals, as beneficiaries of those duties, possess rights correlative to them. We may very well
have duties regarding animals that are not at the same time duties to animals, just as we may
have duties regarding rocks, or buildings, or lawns, that are not duties to the rocks, buildings,
or lawns. Some legal writers have taken the still more extreme position that animals
themselves are not even the directly intended beneficiaries of statutes prohibiting cruelty to
animals. During the nineteenth century, for example, it was commonly said that such statutes
were designed to protect human beings by preventing the growth of cruel habits that could
later threaten human beings with harm too. Prof. Louis B. Schwartz finds the rationale of the
cruelty-to-animals prohibition in its protection of animal lovers from affronts to their
sensibilities. "It is not the mistreated dog who is the ultimate object of concern," he writes.
"Our concern is for the feelings of other human beings, a large proportion of whom, although
accustomed to the slaughter of animals for food, readily identify themselves with a tortured
dog or horse and respond with great sensitivity to its sufferings."2 This seems to me to be
factitious. How much more natural it is to say with John Chipman Gray that the true purpose
of cruelty-to-animals statutes is "to preserve the dumb brutes from suffering."3 The very
people whose sensibilities are invoked in the alternative explanation, a group that no doubt
now includes most of us, are precisely those who would insist that the protection belongs
primarily to the animals themselves, not merely to their own tender feelings. Indeed, it would
be difficult even to account for the existence of such feelings in the absence of a belief that
the animals deserve the protection in their own right and for their own sakes.
Even if we allow, as I think we must, that animals are the in- tended direct beneficiaries of

2
Louis B. Schwartz, "Morals, Offenses and the Model Penal Code," Columbia Law Review 63 (1963):
673.
3
John Chipman Gray, The Nature and Sources of the Law, 2d ed. (Boston: Beacon Press, 1963), p. 43·

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legislation forbidding cruelty to animals, it does not follow directly that animals have legal
rights, and Gray himself, for one,4 refused to draw this further inference. Animals cannot have
rights, he thought, for the same reason they cannot have duties, namely, that they are not
genuine "moral agents." Now, it is relatively easy to see why animals cannot have duties, and
this matter is largely beyond controversy. Animals cannot be "reasoned with" or instructed in
their responsibilities; they are inflexible and unadaptable to future contingencies; they are
subject to fits of instinctive passion which they are incapable of repressing or controlling,
postponing or sublimating. Hence, they cannot enter into contractual agreements, or make
promises; they cannot be trusted; and they cannot (except within very narrow limits and for
purposes of conditioning) be blamed for what would be called "moral failures" in a human
being. They are therefore incapable of being moral subjects, of acting rightly or wrongly in
the moral sense, of having, discharging, or breeching duties and obligations.
But what is there about the intellectual incompetence of animals (which admittedly
disqualifies them for duties) that makes them logically unsuitable for rights? The most
common reply to this question is that animals are incapable of claiming rights on their own.
They cannot make motion, on their own, to courts to have their claims recognized or
enforced; they cannot initiate, on their own, any kind of legal proceedings; nor are they
capable of even understanding when their rights are being violated, of distinguishing harm
from wrongful injury, and responding with indignation and an outraged sense of justice
instead of mere anger or fear.
No one can deny any of these allegations, but to the claim that they are the grounds for
disqualification of rights of animals, philosophers on the other side of this controversy have
made convincing rejoinders. It is simply not true, says W. D. Lamont,5 that the ability to
understand what a right is and the ability to set legal machinery in motion by one's own
initiative are necessary for the possession of rights. If that were the case, then neither human
idiots nor wee babies would have any legal rights at all. Yet it is manifest that both of these
classes of intellectual incompetents have legal rights recognized and easily enforced by the
courts. Children and idiots start legal proceedings, not on their own direct initiative, but rather
through the actions of, proxies or attorneys who are empowered to speak in their names. If
there is no conceptual absurdity in this situation, why should there be in the case where a
proxy makes a claim on behalf of an animal? People commonly enough make wills leaving
money to trustees for the care of animals. Is it not natural to speak of the animal's right to his
inheritance in cases of this kind? If a trustee embezzles money from the animal's account, 6
and a proxy speaking in the dumb brute's behalf presses the animal's claim, can he not be
described as asserting the animal's rights? More exactly, the animal itself claims its rights
through the vicarious actions of a human proxy speaking in its name and in its behalf. There
appears to be no reason why we should require the animal to understand what is going on (so
the argument concludes) as a condition for regarding it as a possessor of rights.

4
And W. D. Ross for another. See The Right and the Good (Oxford: Clarendon Press, 1930), app. r,
pp. 48-56.
5
W. D. Lamont, Principles of Moral Judgment (Oxford: Clarendon Press, 1946), pp. 83-85.
6
Cf. H.]. McCloskey, "Rights," Philosophical Quarterly I5 (1965): I2I, 124.

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Some writers protest at this point that the legal relation between a principal and an agent
cannot hold between animals and human beings. Between humans, the relation of agency can
take two very different forms, depending upon the degree of discretion granted to the agent,
and there is a continuum of combinations between the extremes. On the one hand, there is the
agent who is the mere "mouthpiece" of his principal. He is a "tool" in much the same sense as
is a typewriter or telephone; he simply transmits the instructions of his principal. Human
beings could hardly be the agents or representatives of animals in this sense, since the dumb
brutes could no more use human "tools" than mechanical ones.
On the other hand, an agent may be some sort of expert hired to exercise his professional
judgment on behalf of, and in the name of, the principal. He may be given, within some
limited area of expertise, complete independence to act as he deems best, binding his
principal to all the beneficial or detrimental consequences. This is the role played by trustees,
lawyers, and ghost-writers. This type of representation requires that the agent have great skill,
but makes little or no demand upon the principal, who may leave everything to the judgment
of his agent. Hence, there appears, at first, to be no reason why an animal cannot be a totally
passive principal in this second kind of agency relationship.
There are still some important dissimilarities, however. In the typical instance of
representation by an agent, even of the second, highly discretionary kind, the agent is hired by
a principal who enters into an agreement or contract with him; the principal tells his agent that
within certain carefully specified boundaries "You may speak for me," subject always to the
principal's approval, his right to give new directions, or to cancel the whole arrangement. No
dog or cat could possibly do any of those things. Moreover, if it is the assigned task of the
agent to defend the principal's rights, the principal may often decide to release his claimee, or
to waive his own rights, and instruct his agent accordingly. Again, no mute cow or horse can
do that. But although the possibility of hiring, agreeing, contracting, approving, directing,
canceling, releasing, waiving, and instructing is present in the typical (all-human) case of
agency representation, there appears to be no reason of a logical or conceptual kind why that
must be so, and indeed there are some special examples involving human principals where it
is not in fact so. I have in mind legal rules, for example, that require that a defendant be
represented at his trial by an attorney, and impose a state-appointed attorney upon reluctant
defendants, or upon those tried in absentia, whether they like it or not. Moreover, small
children and mentally deficient and deranged adults are commonly represented by trustees
and attorneys, even though they are incapable of granting their own consent to the
representation, or of entering into contracts, of giving directions, or waiving their rights. It
may be that it is unwise to permit agents to represent principals without the latters' knowledge
or consent. If so, then no one should ever be permitted to speak for an animal, at least in a
legally binding way. But that is quite another thing than saying that such representation is
logically incoherent or conceptually incongruous-the contention that is at issue.
H. J. McCloskey,7 I believe, accepts the argument up to this point, but he presents a new and
different reason for denying that animals can have legal rights. The ability to make claims,

7
Ibid.

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whether directly or through a representative, he implies, is essential to the possession of

rights. Animals obviously cannot press their claims on their own, and so if they have rights,
these rights must be assertable by agents. Animals, however, cannot be represented,
McCloskey contends, and not for any of the reasons already discussed, but rather because
representation, in the requisite sense, is always of interests, and animals (he says) are
incapable of having interests.
Now, there is a very important insight expressed in the requirement that a being have interests
if he is to be a logically proper subject of rights. This can be appreciated if we consider just
why it is that mere things cannot have rights. Consider a very precious "mere thing"-a
beautiful natural wilderness, or a complex and ornamental artifact, like the Taj Mahal. Such
things ought to be cared for, because they would sink into decay if neglected, depriving some
human beings, or perhaps even all human beings, something of great value. Certain persons
may even have as their own special job the care and protection of these valuable objects but
we are not tempted in these cases to speak of "thing-rights" correlative to custodial duties,
because, try as we might, we cannot think of mere things as possessing interests of their own.
Some people may have a duty to preserve, maintain, or improve the Taj Mahal, but they can
hardly have a duty to help or hurt it, benefit or aid it, succor or relieve it. Custodians may
protect it for the sake of a nation's pride and art lovers' fancy; but they don't keep it in good
repair for "its own sake," or for "its own true welfare," or "well-being." A mere thing,
however valuable to others, has no good of its own. The explanation of that fact, I suspect,
consists in the fact that mere things have no conative life: no conscious wishes, desires, and
hopes; or urges and impulses; or unconscious drives, aims, and goals; or latent tendencies,
direction of growth, and natural fulfillments. Interests must be compounded somehow out of
conations; hence mere things have no interests. A fortiori, they have no interests to be
protected by legal or moral rules. Without interests a creature can have no “good" of its own,
the achievement of which can be its due. Mere things are not loci of value in their own right,
but rather their value consists entirely in their being objects of other beings' interests.
So far McCloskey is on solid ground, but one can quarrel with his denial that any animals but
humans have interests. I should think that the trustee of funds willed to a dog or cat is more
than a mere custodian of the animal he protects. Rather his job is to look out for the interests
of the animal and make sure no one denies it its due. The animal itself is the beneficiary of his
dutiful services. Many of the higher animals at least have appetites, conative urges, and
rudimentary purposes, the integrated satisfaction of which constitutes their welfare or good.
We can, of course, with consistency treat animals as mere pests and deny that they have any
rights; for most animals, especially those of the lower orders, we have no choice but to do so.
But it seems to me nevertheless that in general, animals are among the sorts of beings of
whom rights can meaningfully be predicated and denied.
Now, if a person agrees with the conclusion of the argument thus far, that animals are the
sorts of beings that can have rights, and further, if he accepts the moral judgment that we
ought to be kind to animals, only one further premise is needed to yield the conclusion that
some animals do in fact have rights. We must now ask ourselves for whose sake ought, we to
treat (some) animals with consideration and humaneness. If we conceive our duty to be one of
obedience to authority, or to one's own conscience merely, or one of consideration for tender

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human sensibilities only, then we might still deny that animals have rights, even though we
admit that they are the kinds of beings that can have rights. But if we hold not only that we
ought to treat animals humanely but also that we should do so for the animals' own sake that
such treatment is something we owe animals as their due' something that can be claimed for
them, something the withholding of which would be an injustice and a wrong, and not merely
a harm, then it follows that we do ascribe rights to animals. I suspect that the moral judgments
most of us make about animals do pass these phenomenological tests, so that most of us do
believe that animals have rights, but are reluctant to say so because of the conceptual
confusions about the notion of a right that I have at- tempted to dispel above.
Now we can extract from our discussion of animal rights a crucial principle for tentative use
in the resolution of the other riddles about the applicability of the concept of a right, namely,
that the sorts of beings who can have rights are precisely those who have (or can have)
interests. I have come to this tentative conclusion for two reasons: (I) because a right holder
must be capable of being represented and it is impossible to represent a being that has no
interests, and (2) because a right holder must be capable of being a beneficiary in his own
person, and a being without interests is a being that is incapable of being harmed or
benefitted, having no good or “sake" of its own. Thus, a being without interests has no
“behalf" to act in, and no “sake" to act for. My strategy now will be to apply the “interest
principle," as we can call it, to the other puzzles about rights, while being prepared to modify
it where necessary (but as little as possible), in the hope of separating in a consistent and
intuitively satisfactory fashion the beings who can have rights from those which cannot.
DEAD PERSONS
So far we have refined the interest principle but we have not had occasion to modify it.
Applied to dead persons, however, it will have to be stretched to near the breaking point if it
is to explain how our duty to honor commitments to the dead can be thought to be linked to
the rights of the dead against us. The case against ascribing rights to dead men can be made
very simply: a dead man is a mere corpse, a piece of decaying organic matter. Mere inanimate
things can have no interests, and what is incapable of having interests is incapable of having
rights. If, nevertheless, we grant dead men rights against us, we would seem to be treating the
interests they had while alive as somehow surviving their deaths. There is the sound of
paradox in this way of talking, but it may be the least paradoxical way of describing our
moral relations to our predecessors. And if the idea of an interest's surviving its possessor's
death is a kind of fiction, it is a fiction that most living men have a real interest in preserving.
Most persons while still alive have certain desires about what is to happen to their bodies,
their property, or their reputations after they are dead. For that reason, our legal system has
developed procedures to enable persons while still alive to determine whether their bodies
will be used for purposes of medical research or organic transplantation, and to whom their
wealth (after taxes) is to be transferred. Living men also take out life insurance policies
guaranteeing that the accumulated benefits be conferred upon beneficiaries of their own
choice. They also make private agreements, both contractual and informal, in which they
receive promises that certain things will be done after their deaths in ex- change for some
present service or consideration. In all these cases promises are made to living persons that

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their wishes will be honored after they are dead. Like all other valid promises, they impose
duties on the promisor and confer correlative rights on the promisee.
How does the situation change after the promisee has died? Surely the duties of the promisor
do not suddenly become null and void. If that were the case, and known to be the case, there
could be no confidence in promises regarding posthumous arrangements; no one would
bother with wills or life insurance companies to pay benefits to survivors, which are, in a
sense, only conditional duties before a man dies. They come into existence as categorical
demands for immediate action only upon the promisee's death. So the view that death renders
them null and void has the truth exactly upside down.
The survival of the promisor's duty after the promisee's death does not prove that the
promisee retains a right even after death, for we might prefer to conclude that there is one
class of cases where duties to keep promises are not logically correlated with a promisee's
right, namely, cases where the promisee has died. Still, a morally sensitive promisor is likely
to think of his promised performance not only as a duty (i.e., a morally required action) but
also as something owed to the deceased promisee as his due. Honoring such promises is a
way of keeping faith with the dead. To be sure, the promisor will not think of his duty as
something to be done for the promisee's "good," since the promisee, being dead, has no
"good" of his own. We can think of certain of the deceased's interests, however, (including
especially those enshrined in wills and protected by contracts and promises) as surviving their
owner's death, and constituting claims against us that persist beyond the life of the claimant.
Such claims can be represented by proxies just like the claims of animals. This way of
speaking, I believe, reflects more accurately than any other an important fact about the human
condition: we have an interest while alive that other interests of ours will continue to be
recognized and served after we are dead. The whole practice of honoring wills and
testaments, and the like, is thus for the sake of the living, just as a particular instance of it may
be thought to be for the sake of one who is dead.
Conceptual sense, then, can be made of talk about dead men's rights; but it is still a wide open
moral question whether dead men in fact have rights, and if so, what those rights are. In
particular, commentators have disagreed over whether a man's interest in his reputation
deserves to be protected from defamation even after his death. With only a few prominent
exceptions, legal systems punish a libel on a dead man "only when its publication is in truth
an attack upon the interests of living persons."8 A widow or a son may be wounded, or
embarrassed, or even injured economically, by a defamatory attack on the memory of their
dead husband or father. In Utah defamation of the dead is a misdemeanor, and in Sweden a
cause of action in tort. The law rarely presumes, however, that a dead man himself has any
interests, representable by proxy, that can be injured by defamation, apparently because of the
maxim that what a dead man doesn't know can't hurt him.
This presupposes, however, that the whole point of guarding the reputations even of living
men, is to protect them from hurt feelings, or to protect some other interests, for example,

8
William Salmond, Jurisprudence, 12th ed., P. J. Fitzgerald ed (London: Sweet and Maxwell, 1966),
p. 304.

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economic ones, that do not survive death. A moment's thought, I think, will show that our
interests are more complicated than that. If someone spreads a libelous description of me,
without my knowledge, among hundreds of persons in a remote part of the country, so that I
am, still without my knowledge, an object of general scorn and mockery in that group, I have
been injured, even though I never learn what has happened. That is because I have an interest,
so I believe, in having a good reputation simpliciter, in addition to my interest in avoiding
hurt feelings, embarrassment, and economic injury. In the example, I do not know what is
being said and believed about me, so my feelings are not hurt; but clearly if I did know, I
would be enormously distressed. The distress would be the natural consequence of my belief
that an interest other than my interest in avoiding distress had been damaged. How else can I
account for the distress? If I had no interest in a good reputation as such, I would respond to
news of harm to my reputation with indifference.
While it is true that a dead man cannot have his feelings hurt, it does not follow, therefore,
that his claim to be thought of no worse than he deserves cannot survive his death. Almost
every living person, I should think, would wish to have this interest protected after his death,
at least during the lifetimes of those persons who were his contemporaries. We can hardly
expect the law to protect Julius Caesar from defamation in the history books. This might
hamper historical research and restrict socially valuable forms of expression. Even interests
that survive their owner's death are not immortal. Anyone should be permitted to say anything
he wishes about George Washington or Abraham Lincoln, though perhaps not everything is
morally permissible. Everyone ought to refrain from malicious lies even about Nero or King
Tut, though not so much for those ancients' own sakes as for the sake of those who would
now know the truth about the past. We owe it to the brothers Kennedy, however, as their due,
not to tell damaging lies about them to those who were once their contemporaries. If the
reader would deny that judgment, I can only urge him to ask himself whether he now wishes
his own interest in reputation to be respected, along with his interest in determining the
distribution of his wealth, after his death.
FETUSES
If the interest principle is to permit us to ascribe rights to infants, fetuses, and generations yet
unborn, it can only be on the grounds that interests can exert a claim upon us even before their
possessors actually come into being, just the reverse of the situation respecting dead men
where interests are respected even after their possessors have ceased to be. Newly born
infants are surely noisier than mere vegetables, but they are just barely brighter. They come
into existence, as Aristotle said, with the capacity to acquire concepts and dispositions, but in
the beginning we suppose that their consciousness of the world is a "blooming, buzzing
confusion." They do have a capacity, no doubt from the very beginning, to feel pain, and this
alone may be sufficient ground for ascribing both an interest and a right to them. Apart from
that, however, during the first few hours of their lives, at least, they may well lack even the
rudimentary intellectual equipment necessary to the possession of interests. Of course, this
induces no moral reservations whatever in adults. Children grow and mature almost visibly in
the first few months so that those future interests that are so rapidly emerging from the
unformed chaos of their earliest days seem unquestionably to be the basis of their present
rights. Thus, we say of a newborn infant that he has a right now to live and grow into his

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adulthood, even though he lacks the conceptual equipment at this very moment to have this or
any other desire. A new infant, in short, lacks the traits necessary for the possession of
interests, but he has the capacity to acquire those traits, and his inherited potentialities are
moving quickly toward actualization even as we watch him. Those proxies who make claims
in behalf of infants, then, are more than mere custodians: they are (or can be) genuine
representatives of the child's emerging interests, which may need protection even now if they
are to be allowed to come into existence at all.
The same principle may be extended to "unborn persons." After all, the situation of fetuses
one day before birth is not strikingly different from that a few hours after birth. The rights our
law confers on the unborn child, both proprietary and personal, are for the most part,
placeholders or reservations for the rights he shall inherit when he becomes a full-fledged
interested being. The law protects a potential interest in these cases before it has even grown
into actuality, as a garden fence protects newly seeded flower beds long before blooming
flowers have emerged from them. The unborn child's present right to property, for example, is
a legal protection offered now to his future interest, contingent upon his birth, and instantly
voidable if he dies before birth. As Coke put it: "The law in many cases hath consideration of
him in respect of the apparent expectation of his birth";9 but this is quite another thing than
recognizing a right actually to be born. Assuming that the child will be born, the law seems to
say, various interests that he will come to have after birth must be protected from damage that
they can incur even before birth. Thus prenatal injuries of a negligently inflicted kind can give
the newly born child a right to sue for damages which he can exercise through a proxy-
attorney and in his own name any time after he is born.
There are numerous other places, however, where our law seems to imply an unconditional
right to be born, and surprisingly no one seems ever to have found that idea conceptually
absurd. One interesting example comes from an article given the following headline by the
New York Times: "Unborn Child's Right Upheld Over Religion."10 A hospital patient in her
eighth month of pregnancy refused to take a blood transfusion even though warned by her
physician that "she might die at any minute and take the life of her child as well." The ground
of her refusal was that blood transfusions are repugnant to the principles of her religion
(Jehovah's Witnesses). The Supreme Court of New Jersey expressed uncertainty over the
constitutional question of whether a non- pregnant adult might refuse on religious grounds a
blood trans- fusion pronounced necessary to her own survival, but the court nevertheless

9
As quoted by Salmond, Jurisprudence, p. 303. Simply as a matter of policy the potentiality of some
future interests may be so remote as to make them seem unworthy of present support. A testator may
leave property to his unborn child, for example, but not to his unborn grandchildren. To say of the
potential person presently in his mother's womb that he owns property now is to say that certain
property must be held for him until he is "real" or "mature" enough to possess it. "Yet the law is careful
lest property should be too long withdrawn in this way from the uses of living men in favor of
generations yet to come; and various restrictive rules have been established to this end. No testator
could now direct his fortune to be accumulated for a hundred years and then distributed among his
descendants"-Salmond, ibid.
10
New York Times, 17 June 1966, p. 1.

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ordered the patient in the present case to receive the transfusion on the grounds that "the
unborn child is entitled to the law's protection."
It is important to reemphasize here that the questions of whether fetuses do or ought to have
rights are substantive questions of law and morals open to argument and decision. The prior
question of whether fetuses are the kind of beings that can have rights, however, is a
conceptual, not a moral, question, amenable only to what is called "logical analysis," and
irrelevant to moral judgment. The correct answer to the conceptual question, I believe, is that
unborn children are among the sorts of beings of whom possession of rights can meaningfully
be predicated, even though they are (temporarily) incapable of having interests, because their
future interests can be protected now, and it does make sense to protect a potential interest
even before it has grown into actuality. The interest principle, however, makes perplexing, at
best, talk of a noncontingent fetal right to be born; for fetuses, lacking actual wants and
beliefs, have no actual interest in being born, and it is difficult to think of any other reason for
ascribing any rights to them other than on the assumption that they will in fact be born.11
CONCLUSION
For several centuries now human beings have run roughshod over the lands of our planet, just
as if the animals who do live
there and the generations of humans who will live there had no claims on them whatever.
Philosophers have not helped matters by arguing that animals and future generations are not
the kinds of beings who can have rights now, that they don't presently qualify for
membership, even "auxiliary membership," in our moral community. I have tried in this essay
to dispel the conceptual confusions that make such conclusions possible. To acknowledge
their rights is the very least we can do for members of endangered species (including our
own). But that is something.

11
In an essay entitled "Is There a Right to be Born?" I defend a negative answer to the question posed,
but I allow that under certain very special conditions, there can be a "right not to be born." See
Abortion, ed. J. Fein- berg (Belmont, Calif.: Wadsworth, 1973).

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 PERSONALITY

Theories of the Nature of ‘Legal Persons’*

Professor Wolff has observed that on the Continent legal writers may be grouped into two
categories: those who have written on the nature of legal persons and those who have not yet
done so. In dealing with some of these theories it is as well to bear in mind that the attitude of
the law has not been consistent and also that there is a distinction between appreciating the
unity of a group and the way the word 'person' is used.
‘Purpose’ Theory
This theory, that of Brinz primarily, and developed in England by Barker, is based on the
assumption that 'person' is applicable only to human beings; they alone can be the subjects of
jural relations. The so-called 'juristic' persons are not persons at all. Since they are treated as
distinct from their human sub-stratum, if any, and since jural relations can only vest in human
beings, they should be regarded simply as 'subjectless properties' designed for certain
purposes. It should be noted that this theory assumes that other people may owe duties
towards these 'subjectless properties' without there being correlative claims, which is not
impossible, although critics have attacked the theory on this ground. As applied to ownership,
the idea of ownerless ownership is unusual, but that is not necessarily an objection. The
theory was designed mainly to explain the vacant inheritance, the hereditas jacens, of Roman
law. It is not applicable to English law. Judges have repeatedly asserted that corporations, for
instance, are 'persons', and it is this use of the word that needs explaining. If they say that
these are 'persons', then to challenge this usage would amount simply to using the word
differently from judges.
To Duguit 'purpose' assumed a different meaning. To him the endeavour of law in its
widest sense is the achievement of social solidarity. The question is always whether a given
group is pursuing a purpose which conforms with social solidarity. If it does, then all
activities falling within that purpose deserve protection. He rejected the idea of collective will
as unproven; but there can be, he said, a collective purpose.
Theory of the ‘Enterprise Entity’
Related though somewhat removed from the above, is the theory of the enterprise entity'.
The corporate entity, it is said, is based on the reality of the underlying enterprise. Approval
by law of the corporate form establishes a prima facie case that the assets, activities and
responsibilities of the corporation are part of the enterprise. Where there is no formal
approval by law, the existence, extent of responsibility and so forth of the unit are determined
by the underlying enterprise.
_____________________

* R.W.M. Dias, Jurisprudence 265-270 (5th ed., 1994).

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Theories of The Nature of ‘Legal Persons

‘Symbolist’ or ‘Bracket’ Theory

According to Ihering the members of a corporation and the beneficiaries of a foundation
are the only 'persons'. 'Juristic person' is but a symbol to help in effectuating the purpose of
the group, it amounts to putting a bracket on the members in order to treat them as a unit. This
theory, too, assumes that the use of the word 'person' is confined to human beings. It does not
explain foundations for the benefit of mankind generally or for animals. Also-and this is not
so much an objection as a comment-this theory does not purport to do more than to say what
the facts are that underlie propositions such as, 'X & Co owe Y'. It takes no account of the
policy of the courts in the varying ways in which they use the phrase, 'X and Co'; whether
they will, for instance, lift the mask, ie remove the bracket, or not.
Closely related to this theory is that of Hohfeld, which may be considered next.
Hohfeld's Theory
Hohfeld drew a distinction between human beings and 'juristic persons'. The latter, he
said, are the creation of arbitrary rules of procedure. Only human beings have claims, duties,
powers and liabilities; transactions are conducted by them and it is they who ultimately
become entitled and responsible. There are, however, arbitrary rules which limit the extent of
their responsibility in various ways, eg to the amount of the shares. The 'corporate person' is
merely a procedural form, which is used to work out in a convenient way for immediate
purposes a mass of jural relations of a large number of individuals, and to postpone the
detailed working out of these relations among the individuals inter se for a later and more
appropriate occasion.
This theory is purely analytical and, like the preceding one, analyses a corporation out of
existence. Although it is reminiscent of a person who feels that Hohfeld was advocating that
corporations should be viewed in this way. He was only seeking to reduce the corporate
concept to ultimate realities. What he said was that the use of group terminology is the means
of taking account of mass individual relationships. It is to be noted, however, that he left
unexplained the inconsistencies of the law; his theory was not concerned with that aspect of
it. Finally, to say that corporate personality is a procedural form may seem to be rather a
misleading use of the word 'procedural'. What seems to be meant is that the unity of a
corporation is a convenient way of deciding cases in court.
Kelsen's Theory
Kelsen began by rejecting, for purposes of law, any contrast between human beings as
'natural persons' and 'juristic persons'. The law is concerned with human beings only in so far
as their conduct is the subject of rules, duties and claims. the concept of 'person' is always a
matter of law; the biological character of human beings is outside its province. Kelsen also
rejected the definition of person as an 'entity' which 'has' claims and duties. the totality of
claims and duties is the person in law; there is no entity distinct from them. Turning to
corporations, he pointed out that it is the conduct of human beings that is the subject matter of
claims and duties. A corporation is distinct from one of its members when his conduct is

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governed not only by claims and duties, but also by a special set of rules which regulates his
actions in relation to the other members of the corporation. It is this set of rules that
constitutes the corporation. For example, whether the contract of an individual affects only
him or the company of which he is a member will depend on whether or not the contract falls
within the special set of rules regulating his actions in relation to his fellow members.
This theory is also purely analytical and accurate as far as it goes. It omits the policy
factors that bring about variations in the attitude of the courts, and it does not explain why the
special set of rules, of which Kelsen spoke, is invoked in the case of corporations, but not in
partnerships. In fairness to Kelsen it must be pointed out that he expressly disclaimed any
desire to bring in the policy aspects of the law. All he was concerned to do was to present a
formal picture of the law, and to that extent he did what he set out to do.
'Fiction' Theory
Its principal supporters are Savigny and Salmond. Juristic persons are only treated as if
they are persons, ie human beings. It is thought that Sinibald Fieschi, who became Pope
Innocent IV in 1243, was the first to employ the idea of persona ficta; 'cum collegium in
causa universitatis fingatur una persona'. It is clear that the theory presupposes that only
human beings are 'properly' called 'persons'. Every single man and only the single man is
capable of rights', declared Savigny; and again, ‘The original concept of personality must
coincide with the idea of man’. The theory appears to have originated during the Holy Roman
Empire and at the height of Papal authority. Pope Innocent's statement may have been
offered as the reason why ecclesiastical bodies could not be excommunicated or be capitally
punished. All that the fiction theory asserts is that some groups and institutions are regarded
as if they are persons and does not find it necessary to answer why. This gives it flexibility to
enable it to accommodate the cases in English law where the mask is lifted and those where it
is not, cases where groups are treated as persons for some purposes but not for others. The
popularity of this theory among English writers is explained partly by this very flexibility,
partly by its avoidance of metaphysical notions of 'mind' and 'will,' and partly by its non-
political character.
'Concessions' Theory
This is allied to the fiction theory and, in fact, supporters of the one tend also to support
the other. Its main feature is that it regards the dignity of being a 'juristic person' as having to
be conceded by the state, i.e. the law. The identification of 'law' with 'state' is necessary for
this theory, but not for the fiction theory. It is a product of the era of the power of the
national state, which superseded the Holy Roman Empire and in which the supremacy of the
state was emphasised. It follows, therefore, that the concession theory has been used for
political purposes to strengthen the state and to suppress autonomous bodies within it. No
such body has any claim to recognition as a 'person.' It is a matter of discretion for the state.
This is consistent with the deprivation of legal personality from outlaws; but on the other
hand it is possible to argue that the common law corporations of English law discredit it
somewhat though, even with these, there is a possibility of arguing that they are persons by
virtue of a lost royal grant.

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The 'realist' theory, of which Gierke is the principal exponent and Maitland a
sympathiser, asserts that 'juristic persons' enjoy a real existence as a group. A group tends to
become a unit and to function as such. The theory is of German origin. Until the time of
Bismarck Germany consisted of a large number of separate states. Unification was their ideal,
and the movement towards it assumed almost the character of a crusade. The very idea of
unity and of collective working has never ceased to be something of a marvel, which may be
one reason for the aura of mysticism and emotion which is seldom far from this theory.
The ‘realist’ theory opposes the concession theory. Human beings are persons without
any concession from the state and, so the argument runs, so far as groups are 'real,' they too
are automatically persons.
The 'organism' theory, with which the 'realist' theory is closely associated, asserts that
groups are persons because they are 'organisms' and correspond biologically to human beings.
This is based on a special use of the term 'organism' and the implications of such biological
comparison can lead to absurdity. It is said that they have a 'real life'. Professor Wolff points
out that if this were true, a contract between two companies whereby one is to go into
voluntary liquidation would be void as an agreement to commit suicide. It is also said that
they have a 'group will' which is independent of the wills of its component members.
Professor Wolff has pointed out that the 'group will' is only the result of mutually influenced
wills, which indeed every fictionist would admit. To say, on the other hand, that it is a single
will is as much a fiction as ever the fictionists asserted. As Gray, quoting Windscheid, said,
'To get rid of the fiction of an attributed will, by saying that a corporation has a real general
will, is to drive out one fiction by another.
It has also been stated that group entities are 'real' in a different sense from human beings.
The 'reality' is physical, namely the unity of spirit, purpose, interests, and organisation. Even
so, it fails to explain the inconsistencies of the law with regard to corporations.
Connected with the realist theory is the 'Institutional' theory which marks a shift in
emphasis from an individualist to a collectivist outlook. The individual is integrated into the
institution and becomes part of it. The 'pluralist' form of this theory allowed the independent
existence of many institutions within the supreme institution of the state. The 'fascist' form of
it, however, gave it a twist so as to make the state the only institution, which integrated all
others and allowed none to survive in an autonomous condition.
Conclusions
In the first place, no one explanation takes account of all aspects of the problem, and
criticism becomes easy. Two questions should be kept clear:
What does any theory set out to explain? and, What does one want a theory to explain? Those
that have been considered are philosophical, political or analytical: they are not so much
concerned with finding solutions to practical problems as with trying to explain the meaning
of the word 'person'. Courts, on the other hand, faced with the solving of practical problems,
have proceeded according to policy, not logic. The objectives of the law are not uniform. One
of its main purposes in the case of human beings is to regulate behaviour; so there is, on the
one hand, constant concern with the performance or non-performance of duties by
individuals. With corporations the main purpose is the organise concerted activities and to

96
136
Theories of The Nature of ‘Legal Persons
ascribe collective responsibility therefore; so there is, on the other hand, emphasis on
collective powers and liabilities.
Secondly, as has been pointed out by more than one writer, English lawyers have not
committed themselves to any theory. There is undoubtedly a good deal of theoretical
speculation, but it is not easy to say how much of it affects actual decisions. Authority can
sometimes be found in the same case to support different theories.
Thirdly, two linguistic fallacies appear to lie at the root of much of the theorising. One is
that similarity of language form has masked shifts in meaning and dissimilarities in function.
People speak of corporations in the same language that they use for human beings, but the
word 'person' does not 'mean' the same in the two cases, either in point of what is referred to
or function. The other fallacy is the persistent belief that words stand for things. Because the
differences in function are obscured by the uniform language, this has led to some curious
feats of argumentation to try and find some referent for the word 'person' when used in
relation to corporation which is similar to the referent when the word is used in relation to
human beings. A glance at the development of the word persona, set out at the beginning of
this chapter, shows progressiveness in the ideas represented by it.
There is no 'essence' underlying the various uses of 'person'. The need to take account of
the unity of a group and also to preserve flexibility are essential, but neither is tied to the
word. The application of it to human beings is something which the law shares with ordinary
linguistic usage, although its connotation is slightly different, namely a unit of jural relations.
Its application to things other than human beings is purely a matter of legal convenience.
Neither the linguistic nor legal usages of 'person' are logical. If corporations aggregate are
'persons', then partnerships and trade unions should be too. The error lies in supposing that
there should always be logic. Unless this has been understood, the varied uses of the word
will only make it a confusing and emotional irritant.

*****

97
 SPIRITUAL AND CULTURAL LINKAGES IN THE RECOGNITION OF RIVER
PERSONHOOD IN SELECT JURISPRUDENCE: A CRITICAL ANALYSIS

-Taniya Malik1

The current environmental jurisprudence is witnessing a revival of the “Rights of nature”

movement. Dissatisfied with the anthropocentric bias existing in the current
environmental jurisprudence, the legal systems have started exploring alternate methods,
such as recognizing the rights of nature, as a means for the protection of natural
ecological systems. This trend is more noticeable in the context of river ecosystems.
Many countries across the globe have started recognizing the rights of rivers and river
personhood in their respective legal systems. In 2017, New Zealand became the first
country in the world where, by way of Parliamentary legislation, it declared that the River
Whanganui, considered sacred by the native Maori tribe, is to be treated as a living entity.
Shortly thereafter, the Uttarakhand High Court (India) also declared that the rivers Ganga
and Yamuna are also living entities having the status of a legal person with all
corresponding rights. This came after taking into account the deep spiritual and cultural
connection that the people of India have with these rivers. 2 Shortly afterwards, the
Constitution Court of Columbia recognized that the river Atrato is a subject and holder
of rights. In July 2019, the Supreme Court of Bangladesh granted all of its rivers the
same legal status as humans, making it the first country in the world to grant riverine
rights to all its rivers. In February 2021, River Magpie in Canada's province of Quebec
became the first Canadian river to which the city council granted personhood. However,
the legal systems have a noticeable tendency to recognize the personhood of only those
rivers that have a special spiritual or cultural significance to their people. In a way, the
deep spiritual and cultural connections of these rivers with the native populations is
fuelling the “Rights of rivers” movement across the globe. However, this paper argues
that this selective trend of recognizing rights and personhood of only those rivers that
have a spiritual and cultural significance needs to be discouraged as it will ultimately
weaken the “Rights of Nature” movement. In doing so, the author compares the different
approaches adopted by the other jurisdictions while granting personhood and rights to
rivers. As the jurisprudence in this area is still at a nascent stage, every step taken in this
direction needs to be thoroughly analysed and improved upon to enable smooth
introduction and implementation of rights of rivers in India (and the world!).

1. Introduction
Legal systems across the globe are re-evaluating and reaching out to their indigenous beliefs
to recognize how the “Rights of nature” movement can be used to protect the natural resources
from further degradation. In 2008, Ecuador became the first country to recognize and codify
the rights of nature as a constitutional right.3 More specifically, Arts. 71-74 of the Ecuadorian
Constitution acknowledge the rights of nature or Pacha Mama (the native name for Mother
Nature), to exist, persist, maintain and regenerate its vital cycles. At the same time, it is the
responsibility of the people, state, and communities to enforce and protect these rights before
the legal authorities. It needs to be pointed out that the indigenous Quechua peoples of the

1
Author is an Assistant Professor, School of Law, GD Goenka University, Gurugram, India.
2
Mohd. Salim v. State of Uttarakhand UK HC WP(PIL) No. 126/2014 decided on 20-03-2017.
3
CONSTITUCION DE LA REPUBLICA DEL ECUADOR [CONSTITUTION] Oct. 20, 2008, arts. 71 - 74,
http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html last accessed on 13-08-2021.

98
Andes believe that the “good way of living” or Buen Vivir is rooted in community and harmony
with and nature.4 Their worldviews prefer a developmental model that prioritizes ecological
balance over unrestrained and relentless growth.
The trend of recognizing the rights of nature and its personhood is more pronounced in the
context of the river ecosystem. Since 2008, many jurisdictions across the globe have given
recognition to riverine rights and river personhood, either by an act of legislation or by way of
judicial interpretation. In 2017, New Zealand became the first country in the world when, by
way of Parliamentary legislation, it was declared that the River Whanganui, considered sacred
by the native Maori tribe, is to be treated as a living entity.5 Shortly thereafter the High Court
of the state of Uttarakhand (India) also recognized the personhood of rivers Ganga and Yamuna
and declared them as living entities having the status of a legal person with all corresponding
rights, after considering the deep spiritual significance of these rivers with the native
population.6 Soon afterward, the Constitution Court of Columbia recognized that the river
Atrato is a subject and holder of rights.7 In July 2019, the Supreme Court of Bangladesh
granted all of its rivers the same legal status as humans, making it the first country in the world
to grant riverine rights to all its rivers.8 In February 2021, River Magpie in Canada's province
of Quebec became the first Canadian river that the city council granted personhood. 9
However, upon closer examination, it is observed that in all these jurisdictions, the basis for
grant and recognition of riverine rights and river personhood respectively has been the special
religious, spiritual and cultural significance that these rivers have for the indigenous persons.
With this background, this paper looks into the fundamental basis of the grant of riverine rights
and recognition of river personhood in select jurisdictions across the globe. After inquiring into
the fundamental basis of recognition, this paper seeks to reorient the focus of the legislatures
as well as judicial bodies to consider all rivers as eligible for the grant of riverine rights and
recognition of river personhood, irrespective of their religious, cultural, and spiritual
significance to the indigenous persons. The selective conferment of the river personhood status
on religious or cultural bases will ultimately weaken the rights of nature movement. Further,
the rights of nature movement, does not differentiate between the different river ecosystems
and treats all of them equally.
Structurally this paper is divided into four parts, i.e., followed by a brief introduction of the
research topic; the second part of the paper traces the genesis and evolution of the rights of
nature movement in modern legal history. The third part of the paper is dedicated to identifying
the fundamental basis for the grant of riverine rights and recognition of river personhood in

4
Caria, S.; Domínguez, R., 2016, Ecuador’s Buen vivir: A New Ideology for Development, 206:43, LAT. AMR.
PERS. pp 18–33,
5
Perlman, P., 2017, “New Zealand river to be recognized as living entity after 170-year legal battle”. The
Telegraph, 15-03-2017 available at https://www.telegraph.co.uk/news/2017/03/15/new-zealand-river-recognised-
living-entity/ accessed on 18-06-2021.
6
Mohd. Salim v State of Uttarakhand UK HC WP(PIL) No. 126/2014 decided on 20-03-2017.
7
Bram Ebus, “Colombia’s constitutional court grants rights to the Atrato River and orders the government to
clean up its waters”, Mongabay, 22-05-2017 available at https://news.mongabay.com/2017/05/colombias-
constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/
accessed on 18-04.2021.
8
Mohd. Sohidul Islam & Erin O'Donnell, Legal Rights for the Turag: Rivers as Living Entities in Bangladesh,
23:2, ASIA PAC. J. ENV. LAW, 160 (2020).
9
Graham,J., 2021, “Canadian river wins legal rights in global push to protect nature”, Reuters, 25-02-2021
available at https://www.reuters.com/article/us-land-rights-nature-trfn-idUSKBN2AO2I3 accessed on 18-
04.2021.

99
select jurisdictions. The fourth part of the paper concludes the research findings and makes
suggestions of legal reforms to facilitate smooth introduction and effective implementation of
rights of rivers in the legal systems the world over.
2. Worldwide recognition of the rights of nature movement
Around half a century ago, Prof. Christopher Stone, while working as a professor at the
prestigious University of Southern California, in his path-breaking article titled. ‘Should trees
have a standing? - Toward Legal Rights for Natural Objects’10, challenged the very basis of the
historical legal premise, which treated nature, trees, and other such constituents of nature as
objects in the eyes of the law and therefore devoid of any rights.
While arguing that the natural environment should be seen as capable of holding certain rights,
he observed that,
"[I]t is not inevitable, nor is it wise, that natural objects should have no rights to seek
redress in their own behalf. It is no answer to say that streams and forests cannot have
standing because streams and forests cannot speak. Corporations cannot speak either;
nor can states, estates, infants, incompetents, municipalities or universities. Lawyers
speak for them, as they customarily do for the ordinary citizen with legal problems. One
ought, I think, to handle the legal problems of natural objects as one does the problems
of legal incompetents-human beings who have become vegetable…"11
He further observed that,
"[O]n a parity of reasoning, we should have a system in which, when a friend of a
natural object perceives it to be endangered, he can apply to a court for the creation of
a guardianship."12
Thus, as the natural environment could not stand on its own before any authority or Tribunal,
he further proposed that the natural environment should be represented through guardians, who
would be responsible for protecting its rights and overseeing its legal affairs.
Since then, many jurisdictions such as Ecuador, Bolivia, New Zealand, India, Columbia,
Bangladesh, Canada, and even some local jurisdictions in the United States, have started
developing versions of rights of nature regimes. However, the jurisprudence in this area is still
at a nascent stage, and the rights of nature are not conferred on all the elements of nature
uniformly in these regimes; and in some cases, parts of nature – such as a river or a species-
become named as persons or otherwise equipped to litigate their own rights. 13
In 2008, followed by a national referendum, Ecuador became the first country in the world that
changed its constitution to reflect rights for nature. Soon afterward, this move was followed
legislatively by Bolivia in 2010. It is pertinent to note that in both these countries, the
recognition of the rights of nature coincided with a rise in political power for indigenous
groups.14

10
Stone, C.D., 1972, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45, S. CAL. L. REV.
450 (
11
Id. at p. 464.
12
Ibid.
13
. Gordon, G.J. ,2018 Environmental Personhood, 43 COLUM. J. ENVTL. L. 49
14
Id. at p. 53.

100
The next part of the paper considers the influence of the holistic theories of environmental
protection of indigenous persons to discourses of personhood, specifically in the context of
river personhood.
3. Fundamental basis for the grant of riverine rights and recognition of river
personhood in select jurisdictions
The history of humankind is witness to the fact that almost all ancient civilizations have existed
and prospered around the river systems. For example, the Indus valley civilization (c. 3300 –
c. 1300 BCE, present-day north-western South Asia) prospered around the river Indus, and its
various tributaries, the Mesopotamian civilization (c. 4000 to c. 3100 BCE) flourished near
Tigris River, and the civilization of ancient Egypt (c. 3100 BCE) saw agricultural settlements
around river Nile as early as c. 5500 BCE. Because river systems connect people, places, and
sustain the Ecosystems for a variety of flora and fauna, it is but natural that rivers become an
integral part of the cultural and spiritual beliefs, ways of life, and values of the indigenous
persons.15
I. New Zealand
In New Zealand, as was observed in the case of Ecuador and Bolivia, rights of nature came to
be realized primarily due to the influence of holistic indigenous beliefs surrounding the man-
nature relationship.16 For centuries the natives of the Maori tribe (iwi) believe that a particular
river or mountain might be their living ancestor (tupuna) in the physical world. However, the
arrival of the British settlers on the island undermined the control of the natives of the Maori
Tribe over the river and its surrounding ecosystem. For centuries, they watched helplessly their
living ancestor (tupuna) being subject to developmental activities, resulting in its degradation.
And this belief led to the struggles of the indigenous persons to protect and prevent further
degradation of River Whanganui, which ultimately culminated in the grant of personhood to
the Whanganui River with the passing of the Te Awa Tupua (Whanganui River Claims
Settlement) Act of 2017 by the Parliament of New Zealand. 17 The new legal entity was
designated as Te Awa Tupua, which constitutes “an indivisible and living whole from the
mountains to the sea, incorporating the Whanganui River and all of its physical and
metaphysical elements.”18 The 2017 Act further states that the river would be represented
before any public authority by two guardians, one is representing the Whanganui iwi and the
other from the Crown.19
II. India
Shortly after recognizing the personhood of the river Whanganui, the High Court of the state
of Uttarakhand (India) also recognized the personhood of rivers Ganga and Yamuna and
declared them as living entities in the case of Mohd. Salim v State of Uttarakhand.20 While
granting this recognition, the Uttarakhand High Court categorically highlighted the deep
spiritual and cultural significance these rivers have for the local people. The High Court
observed that,

15
Anderson,E.P.; Jackson, S. et al.,2019, Understanding rivers and their social relations: A critical step to advance
environmental water management, 6(6) WIREs WAT. 1381
16
Hutchison,A. 2014, The Whanganui River as a Legal Person, 39 ALT. L.J. 179,pp 180-81 .
17
Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
18
Id. at s. 13.
19
Ibid.
20
UK HC WP(PIL) No. 126/2014 decided on 20-03-2017.

101
 “[A]ll the Hindus have deep Astha in rivers Ganga and Yamuna and they collectively
connect with these rivers. Rivers Ganga and Yamuna are central to the existence of half
of Indian population and their health and well-being. The rivers have provided both
physical and spiritual sustenance to all of us from time immemorial. Rivers Ganga and
Yamuna have spiritual and physical sustenance. They support and assist both the life
and natural resources and health and well-being of the entire community. Rivers Ganga
and Yamuna are breathing, living and sustaining the communities from mountains to
sea.”21
Further, the High Court referred to a plethora of Judgments of the Supreme Court of India,
which recognized a 'Hindu deity' as a juristic person. Drawing from this analogy, the Hon'ble
High Court was of the opinion that a river can also be treated as a juristic person and granted
personhood. The High Court observed that:
“[A]ccordingly, the Rivers Ganga and Yamuna, all their tributaries, streams, every
natural water flowing with flow continuously or intermittently of these rivers, are
declared as juristic/legal persons/living entities having the status of a legal person with
all corresponding rights, duties and liabilities of a living person in order to preserve
and conserve river Ganga and Yamuna.”22
III. Columbia
In 2017, the Colombian Constitutional Court (Corte Constitucional de Colombia) delivered a
ground-breaking judgment recognizing river Atrato and its ecosystem as a legal subject of
rights (an entidad sujeto de derechos). 23 This landmark judgment aims to protect and restore
the health of river Atrato - which had already witnessed enough degradation because of
unchecked mining, deforestation, and contamination of its river waters attributable to the
developmental activities in the region.
Shortly afterward, in April 2018, the Colombian Supreme Court, following the same eco-
centric approach as was adopted by the Colombian Constitutional Court in the case of the river
Atrato case, declared that the Colombian Amazon Rainforest is to be treated as an autonomous
rights-bearing entity. 24
In both these cases, the Colombian Courts have taken a very pragmatic approach. At the time
of passing of these judgments, there was no legislation on rights of nature in existence in
Colombia. By declaring that natural entities such as these two river systems are capable of
being treated as rights-bearing subjects, the Columbian courts have successfully demonstrated
that the rights of nature can be recognized by way of judicial channels as well. 25

21
Id. at para 17.
22
Id. at para 19
23
Tierra Digna y otros v Presidencia de la República y otros, Colombian Constitutional Court, ruling T-622 of
10 November 2016. The decision was released to the public in May 2017. Full text in Spanish, available at
http://cr00.epimg.net/descargables/2017/05/02/14037e7b5712106cd88b687525dfeb4b.pdf last accessed on 13-
08-2021.
24
Dejusticia y otros v Presidencia de la República y otros, Colombian Supreme Court, ruling STC4360 of 4 May
2018. Full text in Spanish, available at https://cdn.dejusticia.org/wp-content/uploads/2018/01/Fallo-Corte-
Suprema-de-Justicia-Litigio-Cambio-Clim%C3%A1tico.pdf?x54537 last accessed on 13-08-2021.
25
Calzadilla,P.V. 2021, A Paradigm Shift in Courts' View on Nature: The Atrato River and Amazon Basin cases
in Colombia, 15/1 LAW, ENV. & DEV. J. 29, available at http://www.lead-journal.org/content/19049.pdf last
accessed on 13-08-2021.

102
Another striking feature of these two judgments is that the Columbian Courts, particularly in
River Artato’s case, have combined cultural and environmental imperatives and evolved a
concept of ‘biocultural rights’.26 The concept of biocultural rights draws from the close
linkages that exists between the river ecosystems and indigenous/ethnic communities who call
the river region their home.27 The conceptualization of the biocultural rights considers the
community perception of the river as a spiritual being or ancestor, which provides for life,
sustenance and needs and which deserves to be respected and protected.
IV. Bangladesh
In 2019, the South Asian country Bangladesh joined the growing number of jurisdictions that
had recognised the riverine rights and personhood of rivers, when the High Court division of
the Supreme Court of Bangladesh declared that the River Turag was to be treated as a legal
person and living entity28 and also observed that,
“[A]ll rivers flowing inside and through Bangladesh will also get the same status of
legal persons or legal entities or living entities”.29
The Court further went on to designate the National River Conservation Commission (NRCC)
as the lawful guardian or as the ‘Person in Loco Parenties’ of all rivers of Bangladesh,
including River Turag to protect them from pollution and encroachment. 30
With this pronouncement, Bangladesh has become the only jurisdiction in the world to
recognize the legal personality of all of its rivers. While granting personhood to the rivers, the
Court has based its decision primarily on public trust doctrine. 31 However, it needs to be
remembered that the normal perception is to treat the rivers as divine mothers amongst the
indigenous population.32
V. Canada
Canada is the most recent jurisdiction to recognize the personhood of rivers. The Muteshekau
Shipu or the Magpie River in Québec became the first river in Canada to be conferred legal
status - through twin resolutions adopted by the Innu Council of Ekuanitshit and, the Minganie
Regional County Municipality, a local body. 33 In fact, the resolutions recognized nine riverine
rights of River Magpie, including the rights to evolve naturally and be protected, be free of

26
Elizabeth Macpherson, Julia T. Ventura & Felipe C. Ospina, Constitutional Law, Ecosystems, and Indigenous
Peoples in Colombia: Biocultural Rights and Legal Subjects, 9 TRANS. ENV. LAW 521–540 (2020) available at
https://www.cambridge.org/core/journals/transnational-environmental-law/article/constitutional-law-
ecosystems-and-indigenous-peoples-in-colombia-biocultural-rights-and-legal-
subjects/43A29974BD5A3E948AB0461003627951 last accessed on 13-08-2021.
27
Id. at p. 537
28
WP No. 13989/2016 filed on 7/11/2016, Judgment dated 30/01/2019, order dated 03/02/2019.
29
Human Rights and Peace for Bangladesh, Turag River Case, para 2 available at
http://hrpb.org.bd/upload/judgement/Writ-Petition-No.-13989-of-2016-only-17-directions--River-Turag-
Case.pdf last accessed on 13-08-2021.
30
Id. at para 3
31
Shinde,M.; 2021, Legal Transplants as seen in the Comparative Analysis of Judicial Decisions on the
Environmental Personhood of Rivers, 7:2 RGNUL STU. RES. REV. 85, pp 103 available at http://rsrr.in/wp-
content/uploads/2021/05/Mrinalini-Shinde.pdf last accessed on 13-08-2021.
32
Supra Note no. 8
33
Townsend,J.,; Bunten,A.; Iorns, C.; et al, 2021 Why the first river in Canada to become a legal person signals
a boon for Indigenous Rights, The Narwhal, available at https://thenarwhal.ca/opinion-muteshekau-shipu-magpie-
river-personhood/ last accessed on 13-08-2021.

103
pollution, and sue.34 Further, The members of the Innu Council of Ekuanitshit will now act as
the river’s guardians. The recognition of the River Magpie as a living entity is a classic example
of indigenous community-led conservation initiatives. The native tribe of the Innu people
inhabiting the river valley firmly believe that nature is a living thing that must be respected and
protected.35
4. Conclusion
The legal developments discussed in the preceding parts of the paper make it clear that the
national legislatures, various levels of government, and judicial bodies in countries across the
globe have started recognizing the rights of rivers and river personhood in different ways over
the last decade or so. While there is no doubt that the trend to recognize riverine rights has been
gaining momentum in the recent past, yet it is submitted that the jurisprudence in this area is
still at an early stage of evolution. Thus, every step taken towards recognizing river personhood
needs to be thoroughly studied, analysed, and improved upon to enable the smooth introduction
and implementation of rights of rivers in jurisdictions across the globe.
The select jurisdictions covered in part three of this paper make it clear that, except for
Bangladesh, the legal systems have been selective in granting personhood to only those rivers
that have a special religious or cultural significance to the native populations. The idea that
nature is a sentient being isn’t new to Indigenous, ethnic, and traditional communities. In fact,
the indigenous community-led conservation initiatives have been empowering the rights of
nature movement across the globe. While there is no doubt that indigenous community-led
conservation efforts providing momentum to the rights of nature movement is a positive
development as this presents a rare opportunity to inculcate eco-centric ethics in environmental
jurisprudence, yet this selective approach needs to be analysed with precaution.
It needs to be remembered that the “Rights of nature” movement derives its inspiration from
the ideas propagated by Prof. Christopher Stone wherein he suggested that the natural
environment should be seen as capable of holding certain rights. Because the natural
environment could not stand on its own before any authority or Tribunal, it was proposed that
the natural environment should be represented through guardians, who would be responsible
for protecting its rights and overseeing its legal affairs. As conceptualized by Prof. Stone, the
rights of nature movement didn't differentiate between the different elements of nature. This
by analogy would mean that all elements of nature should be given equal respect before the
law, irrespective of their religious, spiritual, or cultural significance to the indigenous
communities. Thus, it will not be an overstatement to say that the practice of attributing
personhood to only those rivers that have a special cultural and spiritual significance to the
indigenous communities is discriminatory and will weaken the rights of nature movement in
times to come. Henceforth, the countries should avoid this tendency and recognize the rights
of rivers (and nature!) of all rivers flowing through their territories, as has been done in the
South Asian jurisdiction of Bangladesh.

34
Ibid.
35
D'Amours, J.K., 2021, This river in Canada is now a ‘legal person’, Aljazeera, 3-04-2021 available at
https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person last accessed on 13-08-2021.

104
 Pramatha Nath Mullick vs Pradyumna Kumar Mullick
28 April, 1925
(Summarised)
(For the full judgment, refer to the https://indiankanoon.org/)

The case concerns the control and worship of a Hindu family idol. The dispute arose within the
Mullick family regarding the worship and location of an idol called Thakur Radha
Shamsunderji, along with other associated deities. The idols were originally installed by Mutty
Lal Mullick, a wealthy Hindu of Calcutta, in his family dwelling house.
The main contention in the case was whether the idol could be relocated from the family temple
(Thakurbari) to the house of one of the Shebaits (caretakers of the deity) during their turn of
worship (Pala system).
Mutty Lal Mullick, the founder of the idol, died in 1846, leaving behind his widow,
Ranganmoui, and an adopted son, Jadulal. In his will, Mutty Lal Mullick assigned
responsibility for the idol's maintenance and worship to his widow until his adopted son
attained the age of 20. After reaching adulthood, Jadulal Mullick assumed responsibility for
managing the idol’s worship and continued to maintain the deity in the family temple
(Thakurbari). In 1881, Jadulal expanded the Thakurbari and built a new worship hall (puja
dalan).
The key legal issues revolved around: The nature of the Shebait’s (caretaker’s) rights – Whether
the Shebaits (family members responsible for worship) could relocate the idol during their
assigned turn of worship. Interpretation of the 1888 Deed – Whether the deed executed by
Jadulal Mullick in 1888 restricted the idol’s movement to any location outside the Thakurbari.
Idol as a Juristic Entity – The Court had to determine whether a Hindu idol had independent
legal status, which could prevent its relocation without just cause. Family Rights to Worship –
Whether partition of the right to worship was legally permissible. Role of Female Members –
Whether the rights of the women in the family were being protected in the dispute.
The Court reaffirmed that a Hindu idol is a juristic entity, meaning it has legal status and can
own property, sue, and be sued. The Shebait (caretaker) is the idol’s guardian and manager,
responsible for ensuring its proper worship and maintenance. The daily rituals, including
bathing, clothing, feeding, and resting the deity, were considered sacred duties of the Shebait.
The Court emphasized that the idol is not mere property, but a spiritual being with legal
recognition.
In 1888, Jadulal Mullick executed a deed of trust, dedicating the Thakurbari and worship hall
(puja dalan) for the idol. The deed stated that the idol must remain in the dedicated temple
unless another temple of equal or greater value was provided. This deed became central to the
dispute, as it was interpreted by the opposing side to mean that the idol could not be removed
from the temple to an individual Shebait’s house.
After Jadulal’s death in 1894, his three sons inherited his estate and Shebait responsibilities. In
1905, a legal scheme was introduced, allowing each son to worship the idol in turns (Pala
system). In 1910-1911, one of the Shebaits moved the idol to his own house for a festival, and
then during his turn of worship (Pala). The relocation of the idol was objected to by another
Shebait when the practice continued in 1917. The opposing party argued that the 1888 Deed
prohibited any movement of the idol. The appellant (Pramatha Nath Mullick), however, argued
that family idols could be temporarily moved for worship as long as reverence and rituals were
maintained.
The Court rejected the argument that the idol was mere property that could be disposed of. It
reaffirmed that an idol is a juristic person, requiring proper management by the Shebait. The
Court held that Shebaits can divide their right to worship (Pala system) among themselves. The

105
practice of worship by turns was legally valid, provided it did not violate the sanctity of the
idol’s worship.
The Court ruled that the deed did not create an absolute restriction against moving the idol.
The deed only restricted relocation unless an equal or better Thakurbari was provided.
Since temporary relocation for worship was an established Hindu custom, removing the idol
temporarily did not violate the deed.
The Court recognized that internal family disputes could interfere with the worship of the idol.
It ordered the appointment of a neutral party (next friend) to represent the idol and protect the
rights of female family members. A new scheme for worship was to be drafted to balance the
interests of all Shebaits.
The decrees of the lower courts were set aside. The case was remanded to the High Court to
frame a new scheme for the idol’s worship. No costs were awarded—each party was to bear its
own legal expenses.
Hindu idols are juristic entities with legal rights and cannot be treated as mere property.
Shebaits are custodians, not owners, and must act in the idol’s best interest. Partition of worship
rights (Pala system) is legally valid, provided it does not disrupt the sanctity of the idol’s
worship. Temporary relocation of idols is permissible, as long as rituals are maintained
properly. Family disputes should not interfere with religious worship, and a legal scheme can
be framed to ensure orderly worship.
The Supreme Court balanced religious traditions with legal principles, ensuring that family
disputes did not interfere with the proper worship of the idol. The ruling reinforced the idea
that idols have independent legal rights, and their worship must be managed with reverence
and fairness.

106
 Rama Reddy vs Ranga Dasan And Ors.
28 October, 1925
(Summarised)
(For the full judgment, refer to the https://indiankanoon.org/)

The case concerns the recovery of immovable property belonging to a temple, which was
alienated by a trustee. The plaintiff, the trustee of a temple, sought to recover possession of the
temple’s property that had been transferred more than 12 years earlier. The third defendant in
the case filed this Letters Patent Appeal challenging the ruling of the single judge in favour of
the plaintiff.
The main legal issue in the case was whether the suit was barred by limitation under Article
134 of the Limitation Act. Key Legal Issues: Does Article 134 of the Limitation Act apply to
the case? Article 134 provides a 12-year limitation period for recovering possession of
immovable property transferred by a trustee. The question was whether the transfer by the
temple trustee fell under this provision. Was the transfer valid under Hindu law? If the trustee
had no authority to transfer the temple’s property, did the buyer acquire any valid title? Was
the property vested in the trustee, or did it belong to the deity as a juristic entity? Does adverse
possession apply? If the property was wrongfully transferred, could the buyer claim ownership
after 12 years of possession? Could Article 144 (which allows for adverse possession) apply in
this case?
The court referred to the Privy Council decision in Vidya Varuthi v. Baluswami Aiyar (1921),
which held that: Hindu trustees are not "trustees" in the English law sense. The property of a
religious institution is vested in the deity (idol), not in the trustee. The trustee is merely a
manager, responsible for ensuring proper worship and administration. The judgment stated that
in Hindu law, religious endowments belong not to the trustee, but to the deity itself. The trustee
does not have ownership rights, only a managerial role. The court held that a trustee of a
religious institution has no right to permanently alienate temple property. Any such alienation
is void, as the property belongs to the deity and not to the trustee personally. The transferee
(buyer) only acquires what the trustee could transfer, which was nothing more than a temporary
managerial right. The court rejected the argument that a permanent lease is different from an
outright sale: A permanent lease is still an alienation. The fact that rent is paid does not change
the nature of the transaction. The trustee cannot transfer rights he does not possess.
The court analyzed whether Article 134 of the Limitation Act applied: Article 134 sets a 12-
year limitation period for recovering possession of trust property that was transferred by a
trustee. The court held that this only applies if the trustee had the legal power to transfer the
property. Since the trustee never had the power to alienate the property, the transfer was void.
Therefore, Article 134 did not apply.
The defendants argued that even if the transfer was invalid, their possession for more than 12
years gave them ownership under Article 144 (adverse possession). The court rejected this
argument: The deity (idol) is legally treated as a perpetual minor. Time does not run against the
deity, as it is always under legal protection. Therefore, the successor trustee could reclaim the
property at any time. The court distinguished this case from earlier rulings such as: Gnana
Sambanda Pandara Sannadhi v. Velu Pandaram (1899) and Damodar Das v. Lakhan Das
(1910), where Article 144 was applied. The court clarified that these cases were overruled by
the Privy Council ruling in Vidya Varuthi (1921).
The court dismissed the appeal and ruled in favour of the temple trustee. The temple property
must be returned, as the original transfer was invalid. The suit was not barred by limitation, as:
Article 134 did not apply because the transfer was void. Article 144 (adverse possession) did
not apply because the idol, as a juristic entity, is permanently protected. The buyer of the
property did not acquire a valid title, as the trustee had no right to transfer it. Hindu temple

107
property belongs to the deity (idol), not the trustee. The trustee is merely a manager and cannot
claim ownership. A trustee has no power to permanently transfer temple property. Any such
transfer is void, and the successor trustee can reclaim the property at any time. The 12-year
limitation under Article 134 does not apply if the transfer was void. A buyer from a trustee does
not get ownership rights if the trustee had no authority to sell. Adverse possession (Article 144)
does not apply to temple property. Since the deity is legally considered a minor, time does not
run against it. Successor trustees have the right to reclaim property alienated by previous
trustees. There is no deadline for a temple to recover its property.
The judgment reinforces the special legal status of Hindu religious institutions and protects
temple properties from unauthorized alienation. It clarifies that no trustee has ownership rights
and that temple property remains perpetually vested in the deity, immune from adverse
possession claims.

108
Shiromani Gurudwara Prabandhak Committee, Amritsar vs. Shri Som Nath Dass &
Ors. (AIR 2000 SC 1421)
(Summarised)
(For the full judgment, refer to the https://indiankanoon.org/)

The case revolves around the legal status of Guru Granth Sahib and whether it can be
considered a juristic person. The Shiromani Gurudwara Prabandhak Committee (SGPC),
the appellant, sought to establish that the Guru Granth Sahib is a juristic person and
hence, can hold and manage gifted properties. The disputed property in this case was
declared as a Sikh Gurudwara under the Sikh Gurdwaras Act, 1925. The respondents
challenged this declaration, claiming that the property was a Dharamshala or Dera of
Udasian sect and belonged to them as hereditary owners.
Key Legal Issues Involved: Is Guru Granth Sahib a juristic person? If Guru Granth
Sahib is a juristic person, it can hold and manage property given to it in charity. The
respondents argued that Guru Granth Sahib is a sacred book but not a juristic entity. The
SGPC claimed that the disputed property was a Sikh Gurdwara, dedicated to Guru Granth
Sahib. The respondents contended that it was their personal property, managed by them
as successors of its original caretakers. The property was recorded in revenue records in
the name of Guru Granth Sahib. The respondents challenged these records, arguing that
the Guru Granth Sahib could not be a legal owner.
Observations of the Court
The last living Guru of the Sikhs, Guru Gobind Singh Ji, declared that Guru Granth Sahib
would be the eternal Guru of the Sikhs. This recognition elevated Guru Granth Sahib
from a sacred book to a living Guru. Guru Granth Sahib is not just scripture but is
worshipped in every Gurudwara as the supreme authority of Sikhism. The Court analyzed
the concept of juristic personality in law: A juristic person is an entity recognized by law
as having rights and obligations. Corporations, institutions, idols, temples, and mosques
have been recognized as juristic persons in different legal systems.
The Court cited precedents where: Idols in Hindu temples were recognized as juristic
persons (e.g., Pritam Dass Mahant v. SGPC). Mosques were recognized as juristic
persons (Masjid Shahid Ganj v. SGPC). The Court ruled that Guru Granth Sahib should
be recognized as a juristic person for legal and religious purposes.
The property in question was recorded in government revenue records under Guru Granth
Sahib. The respondents and their ancestors were merely managers, not owners.
The property was donated for religious purposes, making it an inalienable religious
endowment. The mutation of land in the name of Guru Granth Sahib was legally valid.
The Sikh Gurdwaras Act, 1925 was enacted to bring gurdwaras under Sikh control. The
respondents filed objections under Sections 8 and 10 of the Act, claiming hereditary
rights. The Sikh Gurdwara Tribunal rejected their claims, affirming that the property
belonged to the SGPC as managers of the gurdwara.
The Tribunal ruled in favour of SGPC, stating that: The property was part of the
gurdwara. The respondents were only caretakers with no ownership rights. The High
Court, however, ruled against SGPC, holding that: Guru Granth Sahib was not a juristic
person. The mutation in revenue records was invalid.
Supreme Court’s Final Judgment:
Guru Granth Sahib is a Juristic Person. The Court overruled the High Court’s decision
and declared Guru Granth Sahib a juristic person. It emphasized that worshippers revere
Guru Granth Sahib as a living Guru, making it distinct from other religious scriptures.
The concept of juristic personality should be broadly interpreted to accommodate
religious and social practices.
109
The mutation of property in the name of Guru Granth Sahib was upheld. The respondents
had no ownership rights, as they were only managers of the gurdwara. The property was
a public religious endowment, which could not be claimed as private property.
The Court ruled that once an endowment is made, it cannot revert to the donor or his
successors. Since the respondents’ ancestors were only caretakers, they had no legal
right to claim ownership. The High Court’s ruling was overturned, and the SGPC was
granted control of the property.
Guru Granth Sahib is a Juristic Person. This ruling sets a legal precedent affirming that
Guru Granth Sahib can own property, sue, and be sued. This brings Guru Granth Sahib
on par with Hindu idols and mosques, which have already been recognized as juristic
persons. Once property is donated for religious purposes, it cannot be reclaimed by the
donor’s heirs. The SGPC, as the managing body of Sikh gurdwaras, has legal authority
over such properties.
The Court recognized the unique religious status of Guru Granth Sahib. Legal recognition
must align with religious customs and faith. Government records are strong evidence of
ownership. If land is recorded under a religious entity, it reinforces its legal ownership.
The Supreme Court’s landmark ruling confirms Guru Granth Sahib as a juristic person.
The decision protects Sikh religious endowments from misappropriation. The ruling
strengthens the legal framework governing religious institutions in India. The appeal was
allowed, the High Court’s decision was set aside, and the SGPC was granted control over
the property.

110
 Lalit Miglani vs. State of Uttarakhand & Others
30 March, 2017
(Summarised)
(For the full judgment, refer to the suggested readings.)

The case was a Public Interest Litigation (PIL) filed by Lalit Miglani in the Uttarakhand
High Court. The petitioner sought to protect the environment, particularly the Himalayan
glaciers, rivers, and other water bodies. The petition urged the court to declare the
Himalayan glaciers, rivers, and other natural entities as "juristic persons" to ensure their
protection. The court had already recognized the Ganga and Yamuna rivers as living entities
in a previous judgment.
Key Legal Issues Involved: Should natural resources like the Himalayas, glaciers, and
rivers be declared juristic persons? The petitioner argued that environmental elements
needed legal personhood to ensure their preservation and protection. Can the court
intervene in environmental protection beyond the statutory framework? The court had to
determine whether judicial activism could be used to protect nature, given existing
environmental laws. What duties do the State and individuals have in protecting the
environment? The case examined the constitutional and legal obligations of the government
and citizens in preserving nature.
Observations of the Court: The court noted that rivers Ganga and Yamuna were already
recognized as juristic persons. It extended this reasoning to the Himalayas, glaciers,
streams, and other water bodies, stating: These natural entities are essential for human
survival. They cannot protect themselves from environmental damage. Recognizing them
as juristic persons would grant them legal rights and allow lawsuits on their behalf.
The court highlighted the alarming retreat of the Gangotri and Yamunotri glaciers. NASA
images showed that Gangotri Glacier had receded by over 850 meters in 25 years. The
glaciers are melting rapidly due to pollution and climate change.
The court cited international reports and scientific studies proving that: Deforestation and
industrialization are major causes of climate change. Immediate action is required to protect
the environment.
The court ruled that: The State has a duty to preserve and protect the Himalayas, rivers, and
forests. The citizens also have a responsibility to prevent environmental destruction.
The court linked environmental protection to the right to life under Article 21 of the Indian
Constitution. It ruled that: A polluted environment violates human rights. The State must
take immediate steps to prevent further environmental damage.
The court referred to various international conventions and agreements, including: The
Stockholm Declaration (1972) – Stressed the duty of nations to protect the environment.
The United Nations Millennium Report – Warned that 60% of Earth’s ecosystems were at
risk. The Public Trust Doctrine – Recognized globally as a principle of environmental
protection.
The court declared that Himalayas, glaciers, rivers, forests, and other natural entities are
juristic persons. This means they have legal rights and can be represented in court.
The court appointed the Chief Secretary of Uttarakhand and the Advocate General of the
State as "legal guardians" of these natural entities. They have a duty to protect and preserve
them.
The State was directed to: Stop pollution in rivers and glaciers. Enforce stricter
environmental laws. Promote afforestation and conservation efforts. The court urged the

111
public to act as "stewards of nature". People were encouraged to prevent deforestation,
pollution, and environmental damage.
This case expanded legal personhood beyond rivers to glaciers, forests, and the Himalayas.
The ruling compelled the government to act against environmental degradation. The
judgment reaffirmed that a healthy environment is a fundamental right under Article 21.
Future litigations can now invoke this ruling to protect forests, rivers, and wildlife.
The Lalit Miglani vs. State of Uttarakhand case is a landmark judgment in environmental
law. By recognizing natural resources as juristic persons, the court empowered legal
protections for the Himalayas, glaciers, and rivers. This decision establishes a strong
precedent for environmental conservation in India.

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 Unit 4: Property Law
*This chapter includes the Mitakshara School as well.

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 Journal of the History of Economic Thought,
Volume 29, Number 3, September 2007

KAUTILYA ON ADMINISTRATION
OF JUSTICE DURING THE FOURTH
CENTURY B.C.
BY
BALBIR S. SIHAG

“It is the power of punishment alone, when exercised impartially in proportion to the
guilt, and irrespective of whether the person punished is the King’s son or an enemy,
that protects this world and the next” (Kautilya, p. 77).

Vishnugupta Chanakya Kautilya wrote a treatise called The Arthashastra, which

means “science of wealth.”1 It contains three parts, which deal with issues related
to economic development, administration of justice, and foreign relations. It has
150 chapters, which are distributed into fifteen books. Book three, which has
twenty chapters and book four, which has thirteen chapters, are devoted to the admin-
istration of justice. Kautilya’s Judicial System called “Dandaniti,” “the science of law
enforcement” is an important part of The Arthashastra. Kautilya codified, modified,
and created new laws related to: loans, deposits, pledges, mortgages etc., sale and pur-
chase of property, inheritance and partition of ancestral property, labor contracts, part-
nership,2 defamation and assault, theft and violent robbery, and sexual offenses. He
dealt with law and justice issues relating to both the civil law and the criminal law.
He offered a truly comprehensive system of justice, which not only incorporated all
the salient elements of a twenty-first century system but also contained a few
additional invaluable insights.

University of Massachusetts Lowell, One University Avenue, Lowell, Mass 01854. I am deeply indebted to the
two referees for enhancing clarity and content of the paper. I am solely responsible for any remaining errors.
1
A. K. Sen (1987, p. 5) believes that Kautilya’s Arthashastra is the first book on economics. He states:

The “engineering” approach also connects with those studies of economics which developed from the
technique-oriented analyses of statecraft. Indeed, in what was almost certainly the first book ever
written with anything like the title “Economics,” namely, Kautilya’s Arthashastra (translated from
Sanskrit, this would stand for something like “instructions on material prosperity”), the logistic
approach to statecraft, including economic policy, is prominent.

2
Joseph J. Spengler (1971) makes a special note of legal rules regarding partnership. He (p. 79) writes: “Rules for
the distribution of remuneration when work was done jointly not only were laid out by Kautilya but also found
expression in commercial arithmetic. When workmen, guild members, or others engage in cooperative undertak-
ings, they shall divide the wages as agreed upon or in equal proportions” (3.14.18).

ISSN 1042-7716 print; ISSN 1469-9656 online/07/030359-19 # 2007 The History of Economics Society
DOI: 10.1080/10427710701514760

https://doi.org/10.1080/10427710701514760 Published online by Cambridge University Press

185
 360 JOURNAL OF THE HISTORY OF ECONOMIC THOUGHT

Kautilya’s Arthashastra discusses many issues that are currently the subject of
intense research.3 His contributions relating to law and order issues may be classified
under three headings:
(a) Importance of the Rule of Law: According to Kautilya, the existence of law and
order was a pre-requisite for economic growth.4 He (p. 108) believed, “The progress of
this world depends on the maintenance of order and the [proper functioning of]
government (1.4).” He continued, “Unprotected, the small fish will be swallowed
up by the big fish. In the presence of a king maintaining just law, the weak can
resist the powerful (1.4).” Kautilya argued that corruption retarded economic
growth by siphoning-off resources and by adversely affecting law and order. He (p.
286) listed corruption and greed among the causes of loss in tax revenue, implying
a lower provision of public infrastructure, which was essential to economic growth.5
(b) Laws must be clear, consistent and in a written form: Kautilya (p. 213) stated,
“The rule of kings depends primarily on [written] orders; even peace and war have
their roots in them [2.10].” There are at least two reasons why Kautilya codified the
laws6 First, many of the traditional laws were outdated or were insufficient to deal
with the new situation. As Charles Drekmeier (1962, p. 260) explains:

By the fifth and fourth centuries B. C. the ancient tribal institutions had lost their
ability to regulate society effectively. New modes of production, new types of
social relationships, new salvation theologies were changing the old ways. Kautilya
was the theorist who most clearly saw the need for expanded state authority to fill
the ever-widening gaps left by the declining authority of tradition.

Second, Kautilya was quite concerned about the possibility of green justice, that is,
judges accepting bribes in exchange for rendering favorable verdicts. He codified the
laws and introduced material incentives, such as efficiency wages, to complement the
existing moral incentives to resolve the principal-agent problem. Recently, Edward L.
Glaeser and Andrei Shleifer (2002, p. 1196) assert:

Codification emerges in our model as an efficient attempt by the sovereign to control

judges as his knowledge of individual disputes deteriorates (as it did when the states

3
Since Gary S. Becker’s (1968) seminal work, hundreds of articles have appeared dealing with many aspects of
law enforcement. These works analyze various aspects of law enforcement and deterrence. These may be classi-
fied as: (i) rent-seeking behavior or corruption by the enforcers and its impact on economic growth and crime
deterrence, (ii) judicial fairness and the minimization of legal errors in the disposition of criminal cases, (iii)
the form of punishment that whether it should be monetary or non-monetary, and (iv) the time inconsistency
or the credibility problems, that is, the society may not find it optimal to carry out the punishment once the
crime has been committed, and the related issue of judicial discretion.
4
Only recently has this issue drawn attention from economists. Pranab Bardhan (1997) reviews the issues related
to corruption and economic growth.
5
Kautilya’s contribution is discussed in Sihag (2005, 2007a).
6
Early Roman law derived from custom and statutes, but the emperor asserted his authority as the ultimate source
of law. His edicts, judgments, administrative instructions, and responses to petitions were collected with the com-
ments of legal scholars. As one 3rd-century jurist said, “What pleases the emperor has the force of law.” As the
law and scholarly commentaries on it expanded, the need grew to codify and to regularize conflicting opinions. It
was not until much later in the 6th century AD that the emperor Justinian I, who ruled over the Byzantine Empire
in the east, began to publish a comprehensive code of laws, collectively known as the Corpus Juris Civils, but
more familiarly as the Justinian Code.” http://www.crystalinks.com/romelaw.html.

https://doi.org/10.1080/10427710701514760 Published online by Cambridge University Press

186
 KAUTILYA ON ADMINISTRATION OF JUSTICE 361

and the economies developed). The simplicity of bright line rules, and the possibility
of verifying their violation, enables the king to use them to structure incentives
contracts for judges.7
It is difficult, however, to put any specific label to Kautilya’s views since he combined
elements of historical, metaphysical, imperative, and sociological schools of
jurisprudence.
(c) Administration of Justice: His insights into the administration of justice are the
focus of the current study. According to Kautilya, effective law enforcement depended
on three factors. (i) Honesty of the Law Enforcers: Kautilya emphasized that the law
enforcers themselves including the king must be honest and law-abiding.8 This is
presented in section II. (ii) Importance of Judicial Fairness: Similarly, he emphasized
the standard of proof, prompt trials, minimization of Type I error, and implicitly the
minimization of type II error (since the king was required to compensate the victim
if the crime was not solved). These issues, which come under the rubric of judicial fair-
ness, are presented in Section III. (iii) Impartiality, proportionality and certainty of
punishment: Kautilya’s utmost emphasis on impartiality, certainty, and proportional-
ity of punishment and discretion in sentencing are provided in section IV. Kautilya
preferred monetary fines to non-monetary punishment and making sure that fines
were paid-off. This and some other related issues are collected in section V. Section
I contains a brief introduction to Kautilya and a justification for considering
administration of justice as a worthy topic in the history of economic thought.

I. AN INTRODUCTION TO KAUTILYA AND THE CONTENTS OF

ARTHASHASTRA

Some time during the last quarter of the fourth century BC, Vishnugupta Chanakya
Kautilya wrote The Arthashastra: The Science of Wealth and Welfare. He has been
credited with toppling the tyrant Nandas and installing Chandragupta Maurya (321

7
Additional analysis on this issue is provided in Sihag (2004).
8
A. Mitchell Polinsky and Steven Shavell (2000), pp. 72–73 survey the field on law enforcement. In the last
section of their article, under the sub-heading “future research” they recommend:

The behavior and compensation of enforcement agents have not been examined in this article, but this topic is
important and should be studied for two reasons. First, the incentive of enforcement agents to discover viola-
tions is affected by the structure of their payments. Secondly, enforcement agents may be corrupted: they may
accept bribes, or demand payments, in exchange for not reporting violations. Corruption tends to reduce deter-
rence, and therefore its presence obviously will affect the theory of optimal law enforcement.

In the light of Kautilya’s contribution their suggestion amounts to: “going back to the future.” Similarly, David
D. Friedman (1999, p. 5261) describes the various elements of an efficient system of criminal punishment,
which includes “penal slavery for criminals who can produce more than it costs to guard and feed them.”
He summarizes his findings as: “Hence imprisonment is always dominated by execution and both are domi-
nated by fines and other alternatives. Modern legal systems do not fit that pattern. One possible explanation
is that the ability of enforcers to profit by convictions can produce costly rent seeking.” Friedman believes
that the real reason for the existence of inefficient system is to curb the possibility of rent seeking on the
part of the enforcers.

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BC-297 BC) on the throne. However, there is no reference to the emperor Chandra-
gupta or to his kingdom Magadha (state of Bihar, India) in The Arthashastra since,
as mentioned above, it was meant to be a theoretical treatise.9 He was the prime min-
ister (adviser) to Chandragupta Maurya but he was an independent thinker. Jawaharlal
Nehru (1946, p 123) describes Kautilya as follows: “He sat with the reins of empire in
his hands and looked upon the emperor more as a loved pupil than as a master. Simple
and austere in his life, uninterested in the pomp and pageantry of high position.”

Date and Authorship of The Arthashastra

There has been a lot of controversy about the date and authorship of The Arthashastra.
Sihag (2004) provides a brief discussion on the available evidence on this issue and con-
cludes, “Today, there exists no direct evidence against Kautilya being the sole author of
The Arthashastra, nor evidence that it was not written during the 4th century B.C. The
indirect evidence such as the writing style of various segments of The Arthashastra, is
insufficient to challenge either the date of its writing or Kautilya as the sole author.”

Administration of Justice as a Part of History of Economic Thought

There are two arguments for including legal issues into the history of economic thought.
First, Robert Dorfman (1991) notes, “Wealth of Nations was primarily a treatise on
economic development.” Adam Smith attached a significant role to the administration
of justice as a prerequisite to economic growth in The Wealth of Nations. Smith wrote:
Commerce and manufactures can seldom flourish long in any state which does not
enjoy a regular administration of justice, in which the people do not feel themselves
secure in the possession of their property, in which the faith of contracts is not sup-
ported by law, and in which the authority of the state is not supposed to be regularly
employed in enforcing the payment of debts from all those who are able to pay. Com-
merce and manufactures, in short, can seldom flourish in any state in which there is
not a certain degree of confidence in the justice of government (Bk. V, Ch. III, p. 445).
The inclusion of administration of justice in The Wealth of Nations is a sufficient jus-
tification to consider this topic as a part of the history of economic thought; for
example, Dani Rodrik, Arvind Subramanian, and Francesco Trebbi (2004) begin
their paper with the above quote. Steven G. Medema (2007) brings out Sidgwick’s neg-
lected but important contribution to this field. Glaeser and Shleifer (2002) provide a
theoretical explanation for the differences between British and French legal systems
(resulting in different outcomes, such as development of financial markets), which ori-
ginated in the twelfth and thirteenth centuries. Somehow, many authors decided to

9
Charles Drekmeier (1962, p. 167) observes: “The administrative organization and regulations of Kautilya are
generally taken to be a description of the Mauryan system. However, Kautilya never purports to give an
account of a specific polity. It is a theoretical work, and any attempt to deduce more than the broad outlines
of the Mauryan administrative system from it must bear this in mind.” It is a well-established fact that the
Arthashastra is a theoretical treatise.
Pushpendra Kumar (1989, p. xxv) also notes: “Thus he stands out as the foremost theorist of ancient India and
the first to prepare a scientific treatise on state-craft with economics as the basic factor.”

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publish in journals which are not classified as history of economic thought journals, but
clearly their contributions belong to the history of economic thought.
Second, according to Henry W. Spiegel (1991), the trend of broadening the scope of
economics started with Wicksteed. He states, “His (Wicksteed’s) reference to the ‘the
purposeful selection between alternative applications of resources’ was to resound
later in Robbin’s definition of economics as the science that treats of the allocation of
scarce resources among different uses” (p. 528). He adds, “The elevation of the logic
of choice to an all-encompassing rule guiding human behavior in all its aspects has
encouraged later writers to claim for economics a far wider scope than is conventionally
accorded to it.” Similarly, both George J. Stigler (1984) and Edward P. Lazear (2000)
label economics as an imperial science because of its colonization of other disciplines
such as sociology, history, political science, and law. Paul A. Samuelson (1968)
describes the current scope of economics quite aptly when comparing, “Harriet Marti-
neau, who made fairy tales out of economics” with modern economists “who make
economics out of fairy tales.” Thus, according to the current scope of economics, any
analysis related to the administration of justice is a part of economics, implying that
it automatically becomes a part of history of economic thought also.10
Finally, Warren J. Samuels (2005, p. 404) explains it very elegantly and succinctly:
“Smith’s system of social science with the three spheres of moral rules, market, and
law, and so on, neither component of a dichotomy or trichotomy is self-sufficient
and independent of each other. They not only interact; they help change each
other.” That is, “moral rules, market and law” are endogenous variables and therefore,
administration of justice is an integral part of any meaningful economic analysis
including that of the history of economic thought. Moreover, if a study of eugenics
can be recognized as a part of history of economic thought (Leonard 2005), adminis-
tration of justice should also be a part of history of economic thought since it has an
equal if not a higher standing.
The Arthashastra was written in Sanskrit but now its translations in English are
available. The interpretations, to a large extent, are based on L. N. Rangarajan’s trans-
lation of The Arthashastra but in a few cases are based on R. P Kangle’s translation
and only these are explicitly indicated. Kautilya, popularly known as Chanakya (the
son of Chanaka), also completed two other works: Chanakya-Sutras (Rules of
Science) and Chanakya-Rajanitisastra (Science of Government Policies).

II. KAUTILYA ON CORRUPTION OF ENFORCERS AND CRIME

DETERRENCE

King as a Role Model

Kautilya (p. 121) stated, “A king endowed with the ideal personal qualities enriches
the other elements when they are less than perfect (6.1).” He (p. 123) added,

10
Hal R. Varian (1993, p. 162) notes: “When Markowitz defended his dissertation at the University of Chicago,
Milton Friedman gave him a hard time, arguing that portfolio theory was not a part of economics, and therefore
that Markowitz should not receive a Ph.D. in economics. Markowitz (1991) says, ‘this point I am now willing to
concede: at the time I defended my dissertation, portfolio theory was not part of Economics. But now it is’.”

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“Whatever character the king has, the other elements also come to have the same
(8.1).” Kautilya expected a king to be like a sage. He (p. 145) explained a sage
king:
A rajarishi [a king, wise like a sage] is one who: has self-control, having conquered
the [inimical temptations] of the senses, cultivates the intellect by association with
elders, is ever active in promoting the security and welfare of the people, endears
himself to his people by enriching them and doing good to them and avoids daydream-
ing, capriciousness, falsehood and extravagance (1.7).

Protection of Private Property Rights

According to Kautilya (p. 121), “The wealth of the state shall be one acquired lawfully
either by inheritance or by the king’s efforts (6.10).” He (p. 231) wrote, “Water works
such as reservoirs, embankments and tanks can be privately owned and the owner shall
be free to sell or mortgage them (3.9).”

A Justification for Bureaucracy

Kautilya (p. 177) observed, “A king can reign only with the help of others; one wheel
alone does not move a chariot. Therefore, a king should appoint advisers as councilors
and ministers and listen to their advice (1.7).” He (p. 196) added, “Because the work of
the government is diversified and is carried on simultaneously in many different
places, the king cannot do it all himself; he, therefore, has to appoint ministers who
will implement it at the right time and place (1.9).”

Principal-Agent Problem
Adolf A. Berle and Gardiner C. Means (1932) observed that there was a separation of
ownership and control in public corporations and suggested that incentives were
required to induce the CEO, the agent, to adhere to the objective of the shareholders,
the principal. Since then a considerable amount of effort has been devoted to explore a
whole set of mechanisms to resolve the principal-agent problem.11
According to Sihag (2007b), Kautilya “Recognized the principal-agent problem
and suggested various mechanisms to induce the agents to supply optimum effort,
and also not to collude, quarrel, steal or desert the king.” Kautilya recommended
the payment of an efficient wage (8000 panas, a square-shaped silver coin, which
was a medium of exchange and unit of account, whereas the lowest wage was 60
panas) to the judges to encourage honesty and efficiency. More than half a century
ago, Frank H. Knight (1947, p. 62) observed, “In the liberal view, the individuals
who implement state action do not act as individuals, but are the agents of law, and
the law is the creation of society as a whole, of the ‘sovereign people,’ and not of indi-
viduals.” Knight makes two important points: (i) the enforcers are just the agents of the
state (he notes the principal-agent problem), and (ii) the whole society consisting of

11
Joseph E. Stiglitz (1987, p. 966) credits Stephen Ross (1973) for coining the term principal-agent.

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“sovereign” people creates the law. Kautilya understood the principal-agent problem
but the public did not directly create the law, although Drekmeier (1962, p. 25) notes
that “we may say that early Indian kingship was broadly contractual, conceived of as a
trust, subject to popular approval, and, most important, subject to higher law and
certain other restraints, normative and practical. It was basically a secular institution.”

Kautilya’s Insistence on Honest Enforcers as a Prerequisite for Effective Law

Enforcement
Kautilya was acutely aware of the possibility that some law enforcers might resort to
extortion. He believed that honesty on the part of law enforcers was a prerequisite for
effective law enforcement. He (pp. 493–94) asserted, “Thus, the king shall first reform
the administration, by punishing appropriately those officers who deal in wealth; they,
duly corrected, shall use the right punishments to ensure the good conduct of the
people of the towns and the countryside (4.9).” He (p. 221) pointed out:
There are thirteen types of undesirable persons who amass wealth secretly by causing
injury to the population. [These are: corrupt judges and magistrates, heads of villages
or departments who extort money from the public, perjurers and procurers of perjury,
those who practice witchcraft, black magic or sorcery, poisoners, narcotic dealers,
counterfeiters and adulterators of precious metals.] When they are exposed by
secret agents, they shall either be exiled or made to pay adequate compensation pro-
portionate to the gravity of the offense (4.4).
He labeled them as “anti-social elements” and recommended their elimination. Inter-
estingly, corrupt judges were in the list of the “undesirable persons.”

Guidelines on Judicial Conduct

Kangle (Part III, p. 215) notes that, “The judges are called dharmasthas, a name which
apparently refers to the dharma or law, by which they are to be guided in their work.”
Kautilya provided a detailed set of guidelines to ensure the judicial process would be
fair and impartial. According to him (p. 381),
A judge shall not: threaten, intimidate, drive away or unjustly silence any litigant;
abuse any person coming before the court; fail to put relevant and necessary questions
or ask unnecessary or irrelevant questions; leave out [of considerations] answers rel-
evant to his own questions; give instructions [on how to answer a question]; remind
[one of a fact]; draw attention to an earlier statement; fail to call for relevant evidence;
call for irrelevant evidence; decide on a case without calling any evidence; dismiss a
case under some pretext; make someone abandon a case by making them tired of
undue delays; misrepresent a statement made in a particular context; coach witnesses;
or rehear a case which had been completed and judgment pronounced. All these are
punishable offenses; in case the offense is repeated, the judge shall be fined double
and removed from office (4.9).
Kautilya offered a comprehensive list of ways in which a judge could affect the
outcome of a case. He believed that a judge must be competent and not compromise

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with the judicial process to ensure impartiality. It is obvious that the judges themselves
were not above the law. Kangle (Part III, pp. 221– 22) observes, “Such treatment
expected to be meted out to members of the judiciary strikes us today as being very
strange. If judges are themselves to be fined, the dignity that is expected to be attached
to their office is bound to disappear. The judges, in the scheme of this context, occupy
a position subordinate to the executive and are far from being independent of it.”
However, there was no other practical way to remove them since there did not exist
any legislative body to have hearings for the removal of corrupt judges.
In fact, there were guidelines even for the judge’s clerk. Kautilya (p. 382) wrote,
“The clerks [who record statements made before the court] shall: record the evidence
correctly; not add to the record statements not made; hide the ambiguity or confusion
in evidence badly given; make unambiguous statements appear confused; or change,
in any way, the sense of the evidence as presented. All these are punishable offenses
(4.9).”
Similarly, Kautilya was concerned about the dishonesty of other government offi-
cials. For example, he (p. 284) argued against an overzealous tax collector, “He who
produces double the [anticipated] revenue eats up the janapada [the countryside and its
people, by leaving inadequate resources for survival and future production] (2.9).” He
(p. 181) suggested to the king, “He shall protect agriculture from being harassed by
[onerous]) fines, taxes and demands of labor (2.1).” He advised the king to compensate
the victims and punish the corrupt officials. He (p. 297) recommended, “A proclama-
tion shall then be issued calling on all those who had suffered at the hands of the [dis-
honest] official to inform [the investigating officer]. All those who respond to the
proclamation shall be compensated according to their loss (2.8).” He (p. 742)
suggested, “Any official who incurs the displeasure of the people shall either be
removed from his post or transferred to a dangerous region (13.5).”

III. KAUTILYA ON JUDICIAL FAIRNESS AND MINIMIZATION OF

LEGAL ERRORS

Current discussion on issues related to judicial fairness is focused primarily on the

standard of proof and minimization of legal errors.12 Kautilya’s judicial system incor-
porated all the essential ingredients of fairness in resolving disputes. These are
explained below.

Expedient Trials
The judicial trials were initiated very promptly, perhaps not to adhere to the dictum
that “justice delayed is justice denied” but due to the belief of an increasing unrelia-
bility of evidence as time passed. Kautilya (p. 462) argued, “Because interrogation
after some days is inadmissible [unreliable?], no one shall be arrested on suspicion
of having committed theft or burglary if three nights have elapsed since the crime,

12
For example, Thomas J. Miceli (1990) remarks that, “For instance, an important question of fairness relates to
the incidence of errors by the criminal process.”

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unless he is caught with the tools of the crime (4.8).” However, he (p. 472) did state,
“An offender shall not go scot-free [just because of passage of time] (3.19).” He (p. 386)
suggested, “The maximum time allowed for a defendant to file his defense shall be three
fortnights (3.1).”

Standard of Proof
According to Kautilya (p. 386), “[In any case before the judges] admission [by the
defendant of the claim against him] is the best. If the claim is not admitted, then
the judgment shall be based on the evidence of trustworthy witnesses, who shall be
persons known for their honesty or those approved by the Court. [Normally,] there
shall be at least three witnesses (3.11).” He (p. 388) added:
In determining a suit in favor of one or the other party, the following shall be taken as
strengthening a party’s case: statements of eyewitnesses, voluntary admissions,
straightforwardness in answering questions and evidence tendered on oath. The fol-
lowing shall go against a party: contradiction between earlier or later statements,
unreliable witnesses or being brought to court by secret agents after absconding (3.1).
A few remarks are in order. First, Kautilya’s goal was to prevent the incidence of
crimes and to ensure judicial fairness if a crime occurred. His conceptual framework
offers a reference point. For example, there was no jury, or a team of prosecutors or of
defense lawyers at that time. The simple question is: has this institutional change
improved upon the delivery of justice? According to Kautilya, judicial fairness
depended on the amount of evidence and its reliability. Obviously non-availability
of statistical methods at that time was not a big handicap in measuring the reliability
of the evidence. Since objective measures of probabilities regarding the accuracy of
evidence were not available during the fourth century BC, nor are they available
now. Most likely the judge formed some subjective measure of reliability and simi-
larly; even today every judge or juror has to form some subjective measure of
reliability of evidence. That is why a concerted effort is made both by defense and pro-
secution to appeal to the juror’s emotions to influence his/her subjective measure of
reliability. Second, Kautilya considered the “number of witnesses,” that is, the amount
of evidence also in deciding a case. These days the prosecutor stresses the “mountain”
of evidence whereas the defense questions its reliability—that is, tries to create a
reasonable doubt. According to Kautilya, witnesses must be independent and
known for their honesty, implying that the current practice of allowing testimonies
of biased and paid expert witnesses or of convicted jailhouse inmates may be
helpful in convicting the innocent or setting the guilty free (such as in committing
legal errors) but not necessarily in the delivery of justice.
Kautilya (p. 462) recommended, “Anyone arrested [on suspicion of having com-
mitted a theft of burglary] shall be interrogated in the presence of the accuser as
well as witnesses from inside and outside [the house of the accuser] (4.8).” He
(p. 463) asserted, “A suspect may admit to being a thief, as Ani-Mandavya did, for
fear of the pain of torture. Therefore, conclusive proof is essential before a person
is sentenced (4.8).” Kautilya insisted on solid evidence for conviction (although the
above story is told a little differently in the Epic Mahabharata, that a sage did not

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want to break his vow of silence to declare his innocence, but the implication is the
same). Kautilya (pp. 464– 65) offered a detailed discussion on forensic evidence for
establishing the cause of death. However, he (pp. 466–67) did recommend torture
to elicit confession but only in those cases (excluding the sick, the minors, the
aged, the debilitated, the insane, those suffering from hunger, thirst or fatigue after
a long journey and a pregnant woman) where there was a strong suspicion of guilt.
He (p. 467) cautioned, “A person can be tortured only on alternative days and only
once on the permitted days. Torture shall not result in death; if it does so, the
person responsible shall be punished (4.8).” It may be noted that the accused was to
be questioned in front of the accuser implying that Kautilya would not have approved
the current practice of giving a choice to the accused whether to take the witness stand
or not.

Punishment for Perjury

Perjury was a punishable offense. Kautilya (p. 388) stated, “Witnesses are obliged to
tell the truth. For not doing so, the fine shall be 24 panas and half for refusal to testify
(3.11).”

Futility of Witness Tampering

Kautilya (p. 389) added that if a party to a suit “conspires with witnesses by talking to
them in secret when such conversation is prohibited (3.1)” would be an adequate
ground against the party.

Cost of Type I Error

Kautilya (p. 493) wrote, “An innocent man who does not deserve to be penalized shall
not be punished, for the sin of inflicting unjust punishment is visited on the king. He
shall be freed of the sin only if he offers thirty times the unjust fine (4.13).” According
to Kautilya, convicting an innocent person was a “sin,” that is, an ethical lapse and also
a huge monetary loss (“thirty times”) for the State.

Cost of Type II Error

Kautilya (p. 437) suggested, “If a King is unable to apprehend a thief or recover stolen
property, the victim of the theft shall be reimbursed from the Treasury (i.e. the king’s
own resources). Property [unjustly] appropriated shall be recovered [and returned to
the owner]; otherwise, the victim shall be paid its value (3.16).” Two remarks are
in order. First, a much broader and more relevant definition of Type II error is discern-
ible from Kautilya’s statement. He did not make a distinction between the guilty who
were arrested but not convicted and those guilty defendants who had evaded arrest
(this is explained below), whereas the commonly advanced definition of Type II
error is confined only to the guilty defendants who are arrested but not convicted
due to lack of sufficient evidence against them. Second, at that time, no private insur-
ance policies (a case of missing markets) were available against the possibility of loss

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Table 1a. A Numerical Example to Calculate Type I and Type II Errors

Guilty Not Guilty Total

Arrested 100 10 110
Convicted 80 5
Not Convicted 20 5
Not Arrested 900 98990 99890
Total 1000 99000 100,000

caused by theft and burglary and the king was asked to fulfill this role. Consequently,
there was a built-in incentive to prevent crimes from happening and solving them if
they happened; otherwise, the king had to compensate for the loss. Certainly a
market for insuring such losses has been created, which is a good thing, but in the
process the built-in incentive to prevent and solve such crimes has been lost. The
above numerical table 1a may be used to make Kautilya’s definitions of Type I and
Type II errors explicit.13

13
Becker (1968) discussed only the prevention of crimes but did not suggest anything if a crime was committed.
Miceli (1991) proposes a comprehensive model of fairness and deterrence, which presumably combines Becker’s
crime prevention model and Miceli’s (1990) fairness model. However, Kautilya implicitly provided a more com-
prehensive approach with many additional insights. The following table 1b captures Kautilya’s conceptual
framework.

Table 1b. Kautilya’s Conceptual Framework for Defining Type I and Type II Errors.

Truly Guilty (G) Innocent (Gc)

Arrested P (A > G) P (A > Gc) P (A)
(A) Convicted (C) P(C > A > G) P (C > A > Gc)
(Correct Decision) (Type I Legal
Error)
Not convicted P (Cc > A > G) P (Cc > A > Gc)
(Cc) (Type II Legal Error) (Correct Decision)
Not arrested P (Ac > G) P (Ac > Gc) P (Ac)
(Ac)
P (G) P (Gc) 1

Let G ¼ the number of guilty and Gc ¼ the number of innocent. Let Pa ¼ P (A/G) ¼ [P (A > G) / P (G)] ¼
probability of arresting a guilty person, Pc ¼ [P(C > A > G)/ P (A > G)] ¼ probability of convicting a
guilty person who has been arrested, p ¼ Pa Pc ¼ P(C > A > G)/ P (G) ¼ probability of arresting and convict-
ing a guilty person. Kautilya’s implicit definition of Type II error includes defendants (a) who actually committed
crimes and were arrested but did not get convicted and, (b) who were not even arrested, that is who were still at
large. According to Kautilya, the king was supposed to compensate the victims under both the possibilities,
implying that if the defendant did not get convicted his arrest alone was not sufficient in reducing the king’s liabil-
ities. So Kautilya’s approach implicitly defined the probability of Type II error as, b ¼ (1 2 Pa Pc) ¼ (1 2 p) ¼
probability of a guilty person not convicted, and the probability of Type I error as, a ¼ P(C > A > Gc) /P (Gc) ¼
probability of arresting and convicting an innocent person.

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Kautilya’s Definitions
Probability of Type I error ¼ (1 2 d) Pi (A/ Gc) ¼ 5/99000. It may be noted that
given other things constant, the probability of Type I error increases as the number
of arrests increases. In actuality as the number of arrests increase, the police may
get over-burdened and courts get crowded and, consequently, both d and Pi are
adversely affected. The probability of arresting and convicting the criminal is
p ¼ d Pg A/G ¼ 80/1000, and this is relevant if the goal is the prevention of
crimes. That is precisely the definition Gary S. Becker considers for preventing
crimes. As mentioned above, Kautilya did not make a distinction between those defen-
dants who were arrested but not convicted and those guilty defendants who were not
even arrested. Since the king was asked to compensate for all the unresolved cases,
according to Kautilya, the Type II error probability is ¼ 1 2 p ¼ 920/1000. It
may be noted that given other things equal, the probability of Type II error decreases
as the arrests increase.14
Of course, Kautilya’s goals were to avoid the arrest of an innocent person and if an
innocent person is arrested, not to convict him—that is, if possible to achieve, d ¼ 1,
or Pi ¼ 0. However, if d ¼ 1 2 d or Pg ¼ Pi, that is, if the probabilities of arrest or
conviction were the same for the guilty and the innocent, there would be a chaos.
Kautilya was quite concerned about the possibility of such a situation.

14
A judicial process is initiated to find the guilt or innocence of a person arrested for an alleged crime. For
example, Miceli (1991) defines the probabilities of legal errors as follows: He sets d ¼ P (G/A) ¼ [P
(A > G)/P (A)] ¼ probability that an arrested person is guilty; Pg ¼ [P(C > A > G)/ P (A > G)] ¼ probability
of convicting a guilty person (i.e., (1 2 Pg) is the probability of not convicting a guilty person); probability that an
arrested person is guilty and is convicted ¼ dPg ¼ P (C > A > G)/ P (A). Type II legal error probability ¼ d
(1 2 Pg). Probability of convicting an innocent person ¼ Pi ¼ P (C > A > Gc)/ P (A > Gc), and Type I legal
error probability ¼ (1 2 d) Pi ¼ P (C > A > Gc) / P (A) ¼ probability of arresting and convicting an innocent
person.
Miceli’s definitions based on the numbers: Type I error probability ¼ 5/110 and type II error
probability ¼ 20/110. If the objective is to assess the performance of the judiciary only, Miceli’s definitions
are sufficient since his analysis is confined only to those who have been arrested. However, his definitions are
not relevant if the objective is to deter crimes. For example, if the enforcement authorities arrest just one criminal
person (out of the 1000) and convict him, that is, d ¼ 1 and Pg ¼ 1. According to Miceli’s definition, the prob-
ability of conviction ¼ d Pg ¼ 1. But that cannot be correct since the probability of conviction of a guilty person
would be ¼ 1/1000 ( ¼ d Pg A/G ¼ A/G), which is very small to deter any crime. It means that Miceli’s model
did not achieve its goal of combining prevention of crimes and judicial fairness.
Polinsky and Shavell (2000) do not define the various probabilities explicitly. It seems that they define the
legal errors in the following way. Let the probability of detection, P be defined as P ¼ A/G ¼ 110/ 1000,
the Type I error probability (they call it Type II error), 12 ¼ (1 2 d) A/G ¼ 10/1000; and Type II error prob-
ability, 11 ¼ d (1 2 Pg) A/G ¼ 20/1000. That means in the presence of legal errors, the effective probability
of detection ¼ P (1 2 11 2 12) ¼ d Pg A/G ¼ 80/1000. This is precisely, the probability of arresting and con-
victing a guilty person and is relevant for deterring crimes.
They present an alternative insightful interpretation of these errors. They consider the negative impact of
Type I error (contrary to tradition, they call it Type II error) on crime deterrence, and they note, “The second
type of error, mistaken liability, also lowers deterrence because it reduces the difference between the expected
fine from violating the law and not violating it. In other words, the greater is 12, the smaller the increase in
the expected fine if one violates the law, making a violation less costly to the individual.”

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 KAUTILYA ON ADMINISTRATION OF JUSTICE 371

Figure 1. (f I) and (f G) indicate the initial probability distributions of evidence against an innocent
person and a guilty person respectively. fiI and fiG are the respective probability distributions with
reduced variances of evidence against an innocent person and a guilty person and a 0 and b0 are the
reduced respective probabilities of Type I and Type Ii errors due to the availability of additional evidence.

Reduction of Errors through Additional Evidence

Kautilya (p. 389) explained, “If there is a conflict in the evidence given by different
witnesses, the judgment shall take into account the number of witnesses, their
reliability and the [opinion of the court on their] disinterestedness (3.11).” It is signifi-
cant to note that according to Kautilya, additional evidence, such as the number of wit-
nesses, was assumed to reduce the magnitudes of both the Type I and Type II errors.15
The above figure 1 may be used to explain Kautilya’s insight.
The probability distribution of evidence against an innocent person is indicated by
(fI) and that against a guilty person by (fG). Kautilya’s analysis implied that the prob-
ability distributions shrank as the amount of evidence increased. The probability dis-
tribution for the innocent shrank from fI to fIi and the probability distribution for the
guilty shrank from fG to fG i . Consequently the Type I error was reduced
16
from a to
1 1
a and the Type II error was reduced from b to b .

IV. KAUTILYA ON THE OPTIMUM LEVEL OF PUNISHMENT

Role of the Judge

In the absence of a jury, a defense lawyer, and a prosecutor, there was a very heavy
burden on the judges and magistrates to keep legal errors to the minimum. Kautilya

15
See Thomas H. Wonnacott and Ronald J. Wonnacott (1977, pp. 259–60).
16
On the other hand, Miceli (1990) assumes that an increase in efforts by the prosecutor to collect more evidence
shifts the distributions to the right implying an increase in the probability of Type I error. He notes that prosecu-
tors generally try to shift the distributions to the right. That is clearly against the collective sense of justice.

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 372 JOURNAL OF THE HISTORY OF ECONOMIC THOUGHT

(p. 377) expected, “Judges shall discharge their duties objectively and impartially so that
they may earn the trust and affection of the people (3.2).” And in return, as mentioned
above, Kautilya recommended a decent salary of 8,000 panas for a judge (magistrate).

Guidelines on Sentencing
Kautilya recommended a set of guidelines relating to sentencing. It is obvious that
fairness is not a modern notion since mankind has been concerned with it for a long
time.17 It is considered one of the pillars on which human civilization rests. Kautilya
(p. 377) wrote:
A king who observes his duty of protecting his people justly and according to law will
go to heaven, whereas one who does not protect them or inflicts unjust punishment
will not. It is the power of punishment alone, when exercised impartially in proportion
to the guilt, and irrespective of whether the person punished is the King’s son or an
enemy, that protects this world and the next. (3.1).
The above statement indicates that Kautilya emphasized the critical role of
punishment in deterring crimes and understood that to be effective, the punishment
must be certain, impartial and in proportion to the severity of the crimes. Kautilya
(p. 108) elaborated on this theme,
Some teachers say: “Those who seek to maintain order shall always hold ready the
threat of punishment. For, there is no better instrument of control than coercion.”
Kautilya disagrees [for the following reasons]. A severe king [meting out unjust pun-
ishment] is hated by the people he terrorizes while one who is too lenient is held in
contempt by his own people. Whoever imposes just and deserved punishment is
respected and honored. A well-considered and just punishment makes the people
devoted to dharma, artha and kama [righteousness, wealth and enjoyment]. Unjust
punishment, whether awarded in greed, anger or ignorance, excites the fury of even
[those who have renounced all worldly attachments like] forest recluses and ascetics,
not to speak of householders. When, [conversely,] no punishment is awarded [through
misplaced leniency and no law prevails], then there is only the law of fish [that is, the
law of the jungle] (1.4).
According to Kautilya, punishment up to a point helped the law and order situation,
but beyond a certain level it was likely to hurt it. He believed that judicial fairness
was absolutely essential to the survival of a state. It means that the implication of
Becker’s model that “catch a few and hang them” may not reduce crimes. Almost
all the studies on crime and punishment assume that social and political stability
are unaffected by the level of punishment. However, both Kautilya and Adam
Smith questioned this assumption.

17
Drekmeier (1962, p 254) remarks, “Kautilya: holds that danda must be applied with justice if authority is to
have the respect of the people—which amounts to saying that justice is what transforms power into “authority.”
Danda means punishment.
Adam Smith holds a similar view. He states, “Justice is the main pillar that upholds the whole edifice, if it is
removed, the great, the immense fabric of human society must in a moment crumble into atoms.”

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 KAUTILYA ON ADMINISTRATION OF JUSTICE 373

Kautilya on Balance between Rules and Discretion

Kautilya provided a detailed list of sanctions matching the severity of different
crimes. However, the judges were permitted some discretion. He (p. 493) suggested,
“The special circumstances of the person convicted and of the particular offense shall
be taken into account in determining the actual penalty to be imposed (3.2). Fines
shall be fixed taking into account the customs (of the region and the community)
and the nature of the offense (2.22). Leniency shall be shown in imposing punish-
ments on the following: a pilgrim, an ascetic, anyone suffering from illness,
hunger, thirst, poverty, fatigue from a journey, suffering from an earlier punishment,
a foreigner or one from the countryside (3.20).” According to Kautilya, a judge
should take into consideration both the mitigating and the aggravating (egregious)
circumstances and the characteristics of the defendants in the determination of the
punishment.
The current debate on rules versus discretion is mostly about the polar cases, that
is, whether to have rules or to have discretion. In Kautilya’s scheme of things, rules
were like focal points (or guide posts) around which discretion had to be tailored. Too
many rules and strict adherence to them might deny gains from changed circumstances
or other unexpected opportunities and similarly, too much discretion might lead to
substantial abuses18 and opportune behavior that might result in erosion of credibility.

V. KAUTILYA ON OTHER RELATED ISSUES

Kautilya’s Preference for a Monetary Punishment

Kautilya recommended monetary punishment over non-monetary ones as well as the
“penal slavery.” In fact, at that time imprisonment as a punishment did not exist.
Prisons were used simply to hold the defendants temporarily for the duration of the
trial. Kautilya proposed long lists of different kinds of physical punishments or mon-
etary fines. However, if the convicted person wished, he could substitute monetary
fines for the physical punishments prescribed for non-serious crimes. For example,
according to Kautilya (p. 495), a convicted person could pay 54 panas to spare the
mutilation of his thumb and forefinger or the tip of his nose. Kautilya (p. 490)
suggested that convicted persons were released from prison only “if they had paid
off, by their work,19 the amount owed by them” or “after receiving a payment for
redemption” or redeemed by charitable persons (2.36).

18
Recently, Jennifer F. Reinganum (2000, p. 63) discusses the establishment of the United States Sentencing
Commission to develop the sentencing guidelines for achieving certain social goals. These are very similar, as
mentioned above, to those specified by Kautilya. She states
The motivation for such guidelines included at least the following arguments. First, the then-current system of
indeterminate sentencing with parole made it difficult for either the offender or the state to form a reasonable
estimate of the actual sentence; definitive sentencing guidelines were believed to provide honesty in senten-
cing. Secondly, the sentencing guidelines were intended to reduce observed disparity in sentencing across
apparently similar cases. Finally, the sentencing guidelines would build in proportionality in sentencing by
conditioning the prescribed sentence on offense and offender characteristics.
19
Becker (1968) reaches the conclusion that monetary fines are merely transfers and do not use real resources and,
therefore, are preferable. However, Becker’s suggestion has been found to be impractical and the society has to

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 374 JOURNAL OF THE HISTORY OF ECONOMIC THOUGHT

Crime Deterrence through Parading the Thieves

Kautilya (p. 221) recommended:
When thieves and robbers are arrested, the Chancellor shall parade them before
people of the city or the countryside [as the case may be] and proclaim that the crim-
inals were caught under the instructions of the King, an expert in detecting thieves.
The people shall be warned to keep under control any relative with criminal ten-
dencies, because all thieves were bound to be caught [like the ones paraded before
them]. Likewise, the Chancellor shall parade before the people forest bandits and
[criminal] tribes caught with stolen goods as proof of the King’s omniscience (4.5).
Clearly, the policy of parading the thieves was intended by Kautilya to increase the
perceived probability of catching them.20 It is interesting to note that in the case of
government officials who stole property of any private individual (other than that of
the King), Kautilya (pp. 302– 303) recommends “shaming” in lieu of monetary
fines as punishment. He suggested “smearing with cow dung in public,” “smearing
with cow dung and ashes in public,” “parading with a belt of broken pots and
exile” or “shaving off the head and exile” as the amounts of thefts increased in lieu
of the monetary fines of 3 panas, 6 panas, 12 panas or 24 panas, respectively. One
wonders how he calculated the equivalence between the magnitude of a fine and a par-
ticular method of shaming. In any case, Kautilya was clearly aware of the deterrent
role of shaming as a punishment.

The Four Strikes and You are Out Rule

Kautilya (p. 493) recommended, “In all cases, the punishment prescribed shall be
imposed for the first offense; it shall be doubled for the second and trebled for the
third. If the offense is repeated a fourth time, any punishment, as the king pleases,
may be awarded (2.27).”

Protection of Whistle Blowers

Kautilya (p. 298) suggested, “Any informant, to whom an assurance against punish-
ment has been given [even if he had participated in the fraud], shall, if the case is

incur some cost in the collection of fines. Based on an empirical study, Robert W. Gillespie (1988-89) finds “The
relatively low enforcement success achieved for large fines, particularly drug fines larger than $1000.” Gillespie
casts doubt on “the use of fines as a criminal sanction in terms of lower social costs of punishment.”
20
Polinsky and Shavell (2000, p. 68) remark: “The implications of injurers’ imperfect knowledge are straightfor-
ward. First, to predict how individuals behave, what is relevant, of course, is not the actual probability and magnitude
of a sanction, but the perceived levels or distributions of these variables.” David M. Levy (1999) points out that
approbation and disapprobation figure very prominently in Adam Smith’s Moral Sentiments and these could
have a significant effect on the behavior of potential thieves. (Incidentally, Adam Smith’s Katallactic model as pre-
sented by Levy might provide a more convincing explanation of the kink in the loss-aversion function than in Amos
Tversky and Daniel Kahneman (1991)). On the other hand, in recent years, the U.S. public has been demanding (from
their respective state governments) the right to know if any sex offender lives in their neighborhood. This may serve
as a warning to the parents so that they keep a close watch on their children. Recently, some states have passed legis-
lation requiring the registration of sex offenders. Doron Teichman (2004, abstract) argues “That such policies have
limited preventative value, yet they might be justified as an efficient way to sanction sex offenders.”

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 KAUTILYA ON ADMINISTRATION OF JUSTICE 375

proved, receive [as reward] one-sixth of the amount involved; if the informant is a
state servant, one-twelfth. If the case is proved, the informant [shall be permitted to
escape the wrath of the guilty and] may either remain in hiding or attribute the infor-
mation to someone else (2.8).”

State Representation of the Helpless

Kautilya did show compassion for the helpless. He (p. 385) stated, “The judges them-
selves shall take charge of the affairs of gods, Brahmins, ascetics, women, minors, old
people, the sick and those that are helpless [e.g, orphans], [even] when they do not
approach the court. No suit of theirs shall be dismissed for want of jurisdiction,
passage of time or adverse possession (3.2).” Thus we find that he proposed a very
comprehensive and balanced approach to handle crime and punishment. Kangle
(Part III, p. 230) concludes it quite aptly, “This very brief review of the law found
in Kautilya will, it is hoped, show how it has been treated by him in the most systema-
tic manner. The treatment is also as full as possible.”

VI. CONCLUSION

Kautilya’s goal was to attain a crime-free society but the “the removal of thorns” was
to be achieved only by resorting to legal means. He proposed a judicial system, which
had built-in-fairness and crime deterrence. If a crime was not solved, the king had to
compensate the victim. So there was an incentive to prevent a crime from happening
and to solve it if it was committed. Similarly, there was an incentive not to commit a
Type I error in solving the crime since the king had to pay thirty times the amount of
fine imposed on the innocent. Thus there was a built-in incentive to minimize the
costly errors of omission and commission. According to Kautilya, monetary punish-
ments imposed in lieu of physical punishments must be collected.
Kautilya pointed out that excessive punishment due to “anger, greed or ignorance”
was counterproductive since people lost respect for the law. He believed that fairness
was essential for political stability, which was a prerequisite for prosperity. Recently,
A. Mitchell Polinsky, and Steven Shavell (2000, p. 45) assert, “The earliest economi-
cally oriented writing on the subject of law enforcement dates from the eighteenth
century contributions of Montesquieu (1748), Cesare Becceria (1767) and especially,
Jeremy Bentham (1789), whose analysis of deterrence was sophisticated and expan-
sive.” In light of the above presentation of Kautilya’s ideas on crime and punishment,
their conclusion needs modification, because, as described above, Kautilya’s judicial
system was quite advanced and comprehensive—and by two thousand years.

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218
 Searching for Substantive Justice:
Lessons from Lon Fuller’s Natural Law

Robert C. L. Moffat*

ABSTRACT

The goal of this essay is to provide some perspective in the search for substantive justice,
especially the endeavor to say something positive about the substantive content of justice. The
method employed has been to share the insights generated in the life-long exploration of natural
law carried out by Lon Fuller. His outlook can be better understood by exploring the state of
legal thinking that the young Fuller found as he embarked on his academic career. That setting
explains why Fuller turned to natural law, as well as the distinctive perspective he developed.
More specifically, his approach to natural law largely avoided its substantive side for three
reasons. First, many claims of natural law turned out to be a competing form of positive law.
Second, when looked at in historical perspective, substantive natural law often became dated.
Finally, he found some claims of substantive natural law to be shocking in their claim to absolute
truth.

In place of those blind alleys, Fuller looked for the foundations of justice in the realm of
procedure--in the largest sense of that word. Building upon Aristotle’s classic analysis of
distributive and corrective justice, he advocated exploring the principles of social order. That
work produced many insights, including his distinction between law and managerial direction
and the consequent limits on the judgments of justice we are able to make. In a positive
direction, he began the work of showing us how the principles of social order offer an
evolutionary path toward a greater understanding of justice. Finally, that evolutionary theme
culminates in his statement of faith in the possibility of moral progress.

Even so, moral progress is merely a possibility. Having confronted the horrors of the Second
World War as he did, Fuller could not embrace unbridled optimism. Nonetheless, he was still
able to believe in the possibility of positive work toward the achievement of greater knowledge
of substantive justice. Progress toward that goal comes only through employment of real
communication, however; not the easy communication with those who hold similar views.
Rather, Fuller anticipated the challenging kind of communication with those who have quite
different views. For him, this postulate was no mere academic idea. He put it into work in his
path-breaking efforts with the Polish officials who were then viewed as being imprisoned behind
an impenetrable Iron Curtain. His effort shows us what communication can achieve. At the
same time, we must not allow ourselves to forget that there are many roadblocks to successful
communication, just as there are many whose efforts to protect their own dogmas will happily
strive to obstruct our quest for justice.

ESSAY

My project in this essay is to provide some perspective in our search for substantive justice. As
Professor Ehrenreich has made very clear in her introductory essay, our search is one that is

219
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renewed. Why? Because there have been many views of justice over the centuries. Sometimes
those articulations have been quite elaborate. However, belief that the project held any real
prospects for success has been scant in recent decades. Now, she challenges us, has the time not
come to reexamine those assumptions? Can we endeavor to say at least something positive
about the substantive content of justice? My modest suggestion in response to that very
worthwhile challenge is to offer some background and insight that may aid in the search.
Finally, I suggest a project for further study in our ongoing quest for a better understanding of
justice.

More specifically, I have surveyed the work of Lon Fuller, the late Carter Professor of General
Jurisprudence in Harvard Law School, in an effort to glean the insights he generated over many
decades of thought about natural law and what its content might be. His outlook can be better
understood by exploring the state of legal thinking that the young Fuller found as he embarked
on his academic career. That setting explains why Fuller turned to natural law, as well as the
distinctive perspective he developed. His approach to natural law avoided, for the most part, its
substantive side. Hence, he appears to be a skeptic regarding the possibility of finding some
lasting content for substantive justice.

He did, however, undertake a thoroughgoing exploration of the procedural aspects of justice. He

started by building upon Aristotle’s classic analysis of distributive and corrective justice. That
led him to an exploration of the principles of social order. That investigation led him to perceive
an evolutionary path toward a greater understanding of justice and even toward a belief in the
possibility of moral progress. However, that progress depends upon our engagement in real
communication, a requirement not easily met. Consequently, I conclude that Fuller did find
some more subtle, yet critically important, clues to the content of justice and how we might
discover even more of its meanings.

I. Fuller and Natural Law

A. The State of Legal Thought Encountered by Fuller

I find it helpful to understand Fuller’s thought by examining the world of legal thought he
encountered as a young scholar. At the time Fuller first entered the world of legal education,
thinking about law in both England and America was almost completely dominated by various
forms of legal positivism. In England, the classical positivism of John Austin1 prevailed, kept
alive by Holland,2 Amos3 and others.4 In the United States, the American version of positivism
was still strong in the influential works of Oliver Wendell Holmes Jr.5 and John Chipman Gray.6

* Professor of Law; Affiliate Professor of Philosophy; Affiliate Professor of Sociology and Criminology & Law,
Levin College of Law, University of Florida. I am grateful to Audrey Lewis for her patient reading of this
manuscript and for her many valuable editorial suggestions.
1
Austin, The Province of Jurisprudence Determined (2d ed. 1861, repr. 1970).
2
Holland, Jurisprudence (1880).
3
Amos, The Science of Law (5th ed. 1881).
4
See, e.g., Markby, Elements of Law (5th ed. 1896).
5
Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897).
6
Gray, The Nature and Sources of the Law (1st ed. 1909).
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Holmes’ significance, in particular, prevailed because of his central role in framing the
philosophy of judicial restraint during his long tenure on the Supreme Court of the United
States.7

The next generation of legal thinkers, influenced both by the sociological jurisprudence of
Roscoe Pound8 and the judicial skepticism of Holmes and Gray, was dominated by what Fuller
named American Legal Realism.9 Somewhat surprisingly, the legal realists turned out to be, in
their method, legal positivists.10 The surprise is due to the fact that, by taking Holmes’
skepticism to its logical culmination, they disrespected the importance of rules, as Austin termed
them, general commands.11 Instead, by focusing on the law as “what officials of the law do in
fact,”12 they allowed particular commands to constitute the corpus of what they accepted as
law.13

Fuller examined this field of thought carefully. He welcomed the sociological/anthropological

insights brought to bear on law both by Pound and by Fuller’s friend Karl Llewellyn. He also
noticed three things missing from the picture. One was the too easy embrace of Holmesian
skepticism both of law and of the importance of the search for justice, views that Fuller felt
ignored social reality, as he demonstrated in his demolition of Holmes’ “bad man” in his first
book, The Law in Quest of Itself.14 Also missing in Fuller’s eyes was an appreciation of the
social foundations that made possible the order for which legal positivists yearned.15 Finally, he
noted the absence of the creative force that had characterized legal and judicial thinking in the
earlier part of the nineteenth century in the United States. It is notable that, in his mature work
The Common Law Tradition: Deciding Appeals,16 Llewellyn migrated to a position roughly
compatible with that of his old friend Fuller, when he urged a return to the creative judicial
thinking that was at the center of what Llewellyn called “the Grand Style” of judicial decision
making.17

Significantly, that early American thinking was founded on the natural law approach of William
Blackstone. Blackstone supplied the backbone of then available legal information by virtue of

7
See, e.g., Christie, Jurisprudence 647 (1973). See also Thomas C. Grey, Holmes and Legal Pragmatism, 41 Stan.
L. Rev. 787 (1989); Collier, Law As Interpretation, 76 Chicago-Kent Law Review 779 (2000). Holmes was almost
certainly influenced in this regard by the influential article of his Harvard colleague, James Thayer. See Thayer, The
Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
8
An early, highly influential, statement of his position is Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605
(1908). See also Pound, The Spirit of the Common Law (1921).
9
See Fuller, American Legal Realism, 82 U. Pa. L. Rev. 429 (1934).
10
This argument is offered in Moffat, The Perils of Positivism, 10 Harv. J. Pub. Pol’y 295, 321-25 (1987). The
positivist assumptions made by legal realism are explicated at greater length in Brian Leiter, Legal Realism and
Legal Positivism Reconsidered, 111 Ethics 278 (2001).
11
Austin, The Province of Jurisprudence Determined 10-15 (2d ed. 1861, repr. 1970).
12
Llewellyn, The Bramble Bush 12 (1930, repr. 1960) (“What these officials do about disputes is, to my mind, the
law itself.”) (Italics in original).
13
See Perils, supra at 324.
14
Fuller, The Law in Quest of Itself 92-95 (1940).
15
Fuller, The Problems of Jurisprudence 103-14 (temp. ed. 1949); Fuller, The Morality of Law 193 (rev. ed. 1969).
16
Llewellyn, The Common Law Tradition: Deciding Appeals (1960).
17
E.g., id. at 36, 421.
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the fact that his Commentaries on the Laws of England 18 would fit into the saddlebags19 of the
lawyers and judges who continued to press westward in an attempt to bring law to a disorderly
American frontier. In addition, Blackstone’s approach was kept alive in the work of once
famous Americans like James C. Carter.20 Moreover, Blackstone’s mission to show the natural
logic of the developing law was carried on by the American encylopedists who produced highly
influential compendia, such as the works of Chancellor James Kent,21 Justice Joseph Story,22 and
Professor Thomas Cooley.23

All three of these fundamental questions regarding how we think about law could be answered
by the use of a natural law method. Natural law abjures the skepticism of Holmes, and Holmes
specifically recognized that fact in his famous diatribe against Natural Law.24 Natural law
provided the foundation for the judicial creativity of England’s two most noteworthy judges, Sir
Edward Coke25 and Lord Mansfield,26 each of whom receives especial praise from Fuller,27 and
both of whom strongly influenced Blackstone.28 Most importantly, natural law provides a
method of thinking that embraces the importance both of the social underpinnings of law and of
the quest for what Fuller termed “the principles of social order.” In retrospect, it seems
inevitable that Fuller would have turned to natural law as a remedy for the defects he saw in the
existing state of legal thought.

B. Lon Fuller’s Distinctive Perspective on Natural Law

The search for substantive justice is not something new, of course. It is a quest that has been
undertaken for at least 2500 years in the Western tradition, almost always in the guise of one of
the many forms of natural law. For the reasons outlined above, Lon Fuller adopted the method
of natural law. As I also noted above, in The Law in Quest of Itself, Fuller belittled Holmes, the
dedicated enemy of natural law. In addition, he spoke favorably of the work of “Saint Thomas
Aquinas.”29 Needless to say, he excited all the adherents of traditional natural law who worked
at the fringes of mainstream legal thinking, primarily in the Thomist tradition in Roman Catholic
universities. They looked on Fuller as a savior, because they thought that he was going to
legitimize them by bringing natural law into the mainstream of legal thinking. Moreover,
because Fuller held the Carter Chair of General Jurisprudence at Harvard, he had the instant

18
Wm. Blackstone, Commentaries on the Laws of England (3d American ed. 1890).
19
On Blackstone’s influence in America, see McKnight, Blackstone, Quasi-jurisprudent, 13 Sw. L.J. 399, 401
(1959).
20
James C. Carter, Law: Its Origin, Growth, and Function (1907).
21
Kent, Commentaries on American Law (four volumes, 1826-1830).
22
Story, Commentaries on the Constitution of the United States (3 vols., 1833); id., Commentaries on the Conflict of
Laws (1834); id., Commentaries on Equity Jurisprudence (2 vols., 1835-1836); and many others.
23
His best known work is Cooley, Treatise on Constitutional Limitations (1908).
24
Holmes, Natural Law, 32 Harv. L. Rev. 40 (1918).
25
See Fuller, The Morality of Law 99-101 (rev. ed. 1969).
26
See Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 668 (1958).
27
Fuller discusses Coke in The Morality of Law 99-101 (rev. ed. 1969). Fuller quotes Mansfield approvingly in
Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 668n.39 (1958).
28
See McKnight, supra note 19, at 400 n.10.
29
Fuller, The Law in Quest of Itself 101 (1940).
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caché provided by the most prestigious post in American legal philosophy. As a result, he
became the best known American advocate of natural law in the twentieth century.30

Almost a quarter century after the publication of his first book, his second finally appeared. In
The Morality of Law, Fuller distinguishes between what he calls the internal and external
moralities of law.31 The internal is an application of the principles of social order to the legal
process.32 It is represented by his unprecedented exploration of the principles of legality as “the
morality that makes law possible.”33 The external morality of law, on the other hand, is the
goodness—or lack thereof—of the substantive law.34 What is notable is Fuller’s extensive
development of the internal or procedural aspects of law, as well as the lack of development of
substantive natural law.35 The yearning for justice is still important, but its specific content
receives short shrift from Fuller.

His very slight treatment of substantive justice certainly disappointed the devotees of traditional
natural law who had waited so long and so expectantly for much more than Fuller delivered. Not
surprisingly, there were a number of disappointed reviews of The Morality of Law from natural
lawyers.36 They lamented Fuller’s failure to produce anything they recognized as natural law.
Inevitably, they were looking for substantive natural law, a substantive content of justice.
However, Fuller’s neglect of substantive natural law was not casual. He had thought about the
subject long and deeply. Although he might appear to be a skeptic about the possibility of
substantive justice, such a conclusion would be inaccurate. Consequently, I believe he has a
contribution to make to this Symposium’s search for substantive justice. For that reason, it will
be useful to review the reasons that Fuller seemed to be so reticent in his development of
substantive natural law. In the course of examining those reasons, we will also discover that
there is more substance to Fuller’s position than initially appears.

II. Substantive Natural Law and the Search for Justice

A. Confusing Natural Law and Positive Law

One of the first points Fuller wishes us to understand is that much that claims to be natural law is
in reality only a competing form of positive law. For example, in the course of his response to
H.L.A. Hart in the famous debate in the 1958 Harvard Law Review, he commented about the
then current claims by the papacy and those speaking for the papacy about the duties of Roman

30
Summers, Lon L. Fuller 62 (1984).
31
Compare chapters 2 and 4 of The Morality of Law (rev. ed. 1969).
32
See Summers, Lon L. Fuller 73 (1984).
33
That is in fact the title he gives the second chapter of The Morality of Law 33-94.
34
He purports to address such questions in the fourth chapter: “The Substantive Aims of Law.” The Morality of
Law 152-86.
35
See text accompanying notes 51-67 infra.
36
A.P. D'Entreves, The Case for Natural Law Re-examined, 1 Nat. L.F. 3, 31-33 (1956) (calling Fuller's natural law
"technological"); J. Witherspoon, The Relation of Philosophy to Jurisprudence, 3 Nat. L.F. 105, 110 (1958)
(accusing Fuller of "a limitation upon the scope of jurisprudence"); Savarese, Book Review, 53 Geo. L.J. 250
(1964) (finding Fuller's substantive natural law very disappointing).
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Catholic judges in divorce cases. Fuller’s comment was that, though these claims pretend to be
natural law, they are nothing more than a competing version of positive law.

This identification of natural law with a law that is above human law seems in fact to be
demanded by any doctrine that asserts the possibility of an authoritative pronouncement of the
demands of natural law. In those areas affected by such pronouncements as have so far been
issued, the conflict between Roman Catholic doctrine and opposing views seems to me to be a
conflict between two forms of positivism. 37

For anyone not familiar with Fuller’s work, his declaration that the claims were simply a form of
positivism was definitely not a compliment in his eyes.

Although Fuller’s comment is now more than 50 years old, its timeliness continues to the present
day. In Spain at the present time, their government is about to adopt an expansion of legal access
to abortion. The Spanish bishops have responded by threatening to excommunicate anyone who
votes in favor of the legislation as well as anyone who seizes upon the opportunity to terminate a
problem pregnancy.38 As we might expect, their claim is that the proposed legislation violates a
higher law of which they see themselves as custodians. Fuller’s timeless response would be that
we see a conflict between two competing systems of positive law. Although the bishops would
deny it, their attempted deduction from natural law has failed to employ the fundamental method
of natural law identified by Fuller. That method, as we will see below, is the “collaborative
articulation of shared purposes” in pursuit of new principles of ordering social life. In other
words, the bishops have skipped the middle step in the process. They have assumed that they
can declare by fiat what the institutional process is, so that they can jump to the substantive
conclusion they favor.

Thus, we can understand that one of the important reasons Fuller was skeptical about promoting
some kind of substantive content for justice was that he saw various versions of substantive
natural law that had been promulgated previously end up as nothing more than alternate systems
of positive law, competing with the existing domestic systems of positive law. Not only do you
end up with parallel legal systems, you also end up with static claims of what substantive justice
requires. As Professor Ehrenreich points out in her introductory essay, more static claims are not
going to advance us very far in our quest for substantive justice.

B. What is the Shelf-life of Natural Law?

Another reason why Fuller believed that trying to develop a system of substantive natural law
would be futile was the inherent limits of human knowledge. As a result, figuring out the
specific content of substantive justice would be a thankless and often absurd task. Indeed, he
studied the natural law writers of previous centuries, names long forgotten. What he observed
quite uniformly was that many of their claims regarding the substance of natural law looked

37
Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 660 (1958).
38
“Bishop Camino said those who participated in abortion would be immediately excommunicated.” Graham
Keeley, Spain’s Catholic Church fights Socialists’ abortion law reforms, The Times (London), June 22, 2009,
http://www.timesonline.co.uk/tol/comment/faith/article6550355.ece
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quite dated.39 Let me provide one example from my own reading. The great Swiss theologian
Emil Brunner, a colleague of Karl Barth, authored a book on justice just at the end of World War
II.40 He has many good things to say in it, but he was persuaded that natural law had ordained a
special but submissive role for women in the world.41 His book Gerechtigkeit was just published
in 1943,42 showing how few decades it has taken to make his view obsolete, at least in the
Western world. Ideas that were propounded at one point as clear deductions from some
supposed principle of natural law can in hindsight appear quite clearly wrong.

C. Relativism and Absolutes in the Search for Justice

Fuller was justifiably famous for his hypothetical cases. In The Case of the Contract Signed on
Book Day,43 his alter ego Mr. Justice Foster talks about the problem of changing notions of what
justice requires. Does that mean that the quest for justice has no meaning at all? Speaking
through Mr. Justice Foster, Fuller shares his conviction that the search for justice in any society
reflects, not only the external conditions under which the society lives, but the state of
knowledge and belief within that particular society. He addresses that issue at some length:

Skeptics who deny the truths I have just asserted are fond of adducing illustrations drawn from
history and ethnology for the purpose of showing that in the realm of human organization all is
relative and contingent. Societies have in fact been organized on the most fantastic principles, --
principles that seem to us to violate the most elementary demands of justice and rationality.
Hereditary castes and totemic clans are beyond the pale of reason for us because we do not share
the beliefs on which they are founded. But if men mistakenly believe, or have been brought by
the fraud of their rulers to believe, that every human must pass through a hierarchy of castes in
successive reincarnations, then an organization in hereditary castes may, for men entertaining
such beliefs, be eminently fair and reasonable. The quest for justice in any society reflects not
only the external conditions under which the society lives, but the state of knowledge and belief
within the society. If the Speluncean explorers had believed in the efficacy of auguries, it might
have been a rational procedure for them to ask their rescuers above ground to watch the flight of
birds for guidance in their predicament. The fact is that they did not believe in auguries, and the
resort to this method of resolving their problem would, for them, have been an irrational one. The
citizens of our Commonwealth do not believe that they are the blood cousins of bears and owls,
or that they are destined to become mosquitoes in some future existence. Our citizens must seek
justice in the light of their own knowledge. They should not be deterred from their quest by proof
that other men in other ages and other places have entertained very different beliefs and have, in
the light of their beliefs, tolerated or encouraged social organizations that seem to us clearly
44
irrational and unjust.

As we see, Mr. Justice Foster mentions the Speluncean explorers, and the deep dilemma they
faced in deciding how they could survive their ordeal, trapped deep in the cave without food. He

39
See. e.g., Fuller, The Law in Quest of Itself 102 (1940).
40
E. Brunner, Justice and the Social Order (transl. M. Hottinger 1945).
41
Id. at 66.
42
The original German Gerechtigkeit was published in 1943.
43
Mr Justice Foster in The Case of the Contract Signed on Book Day, in Lon Fuller, The Problems of Jurisprudence
71 (temp. ed. 1949).
44
Id. at 84-85.
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is referring to another of Fuller’s hypothetical cases, The Case of the Speluncean Explorers,45
Fuller’s most widely known writing. Notably, the reference to the case serves the purpose of
illustrating the way in which cultural assumptions provide the setting for techniques of decision.
As it turns out, even the application of the principles of social order depends upon their particular
cultural setting and their historical milieu.

We might accept that declaration of the central place of culture at face value and conclude that
Fuller was merely a cultural relativist. That would be misleading. Proponents of moral
absolutes would fear that Fuller fell into the dangerous ethical swamp of absolute cultural
relativism. But Fuller would agree regarding the danger of such a cultural morass. True cultural
relativists, for example, may dismiss the current situation in Iran as the actions of people who
merely hold values different from ours.46 However, there is no way that Fuller would feel moral
ambivalence regarding the murderous actions of the Iranian mullahs against their own people.
Why? He could quickly point out that their attempts to steal the election violate the most
fundamental principles of reciprocity, a foundation upon which Fuller built his conception of
moral duty.47

Clearly, Fuller was not an adherent of full-fledged cultural relativism. Rather, his view was
more subtle than that. Indeed, he addresses that very question when he writes about the cavalier
way in which the terms relative and absolute are thrown around:

I have to confess I have no clear idea what an "absolute" is. . . . If an "absolute" is taken to mean a
moral imperative that yields a clear principle of decision under all circumstances then, again, I
know of no "absolute.". . . So far as I can see, the expressions "absolute" and "relative" as they are
employed in current discussions about natural law are simply unanalyzed terms of censure and
48
praise.

Fuller’s rejection of absolutes arises from his distinctive perspective on the nature of natural law.
We have already seen his condemnation of the competing positivism of the Roman Catholic
edicts on divorce. Indeed, he had previously made it quite clear in his debate with the
philosopher Ernest Nagle that he rejected any notions of natural law as "an authoritative
pronouncement," or as "like a written code."49 In short, he does not accept natural law as a
higher law that can invalidate human law. As we will see in the following section, Fuller prefers
Aristotle's method, including his conception of the “law of nature.”50

III. Searching for the Foundations of Justice

A. Privileging Procedure over Substance: Remembering Aristotle

45
Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949).
46
For one condemnation of this view, see Andrew Klavan, Iran and the Tragedy of Bad Ideas, The Wall St. J., June
22, 2009, page A13.
47
Fuller, The Morality of Law 19-24 (rev. ed. 1969).
48
Fuller, American Legal Philosophy at Mid-Century, 6 J. Legal Educ. 457, 467 (1954).
49
Fuller, A Rejoinder to Professor Nagel, 3 Nat. L.F. 83, 84 (1958).
50
Id. (expressing admiration for Aristotle’s version of natural law).
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If substantive natural law does not succeed in producing as much insight into justice as we
desire, what alternatives remain? Fuller put his intellectual energies into what he called
procedural natural law.51 He was most interested in exploring the principles of social ordering,
the institutions by which we organize social life. He noted how those forms of social
organization had developed through human history. More importantly, he saw how we are
presented with the challenge of imagining new and improved institutions of social ordering. In
that endeavor, he found Aristotle’s distinction between distributive and corrective justice to be a
helpful starting point:

The essential lesson of Aristotle's distinction is that we will get along better if we do one thing at
a time and by the methods appropriate to the job at hand. A jury may be a useful device for
determining how much A should pay for B’s broken leg, but it does not follow that it would be
equally useful in allocating newsprint, as was once suggested in England. Arbitration functions
reasonably well in determining whether a man has been wrongfully discharged, but is unsuited to
setting the wages of industry as a whole. Discretion, in the sense of proceeding with only the
guidance of general standards, may be useful when applied to some problems of corrective
52
justice, but dangerous when applied to problems of distributive justice.

His reference to the suggestion regarding the allocation of newsprint was based on a proposal
actually made during World War II in England. Not surprisingly during wartime, they
experienced a serious shortage of newsprint, and somebody proposed having a court decide how
much should be allocated to the Manchester Guardian, The Times, and the rest. As we will see
below, Fuller was convinced of the complete unsuitability of adjudicative procedures to such
allocative decisions.

Moreover, when Fuller mentions arbitration, he speaks from experience, because he was a very
active labor arbitrator.53 When he declares arbitration to be unsuited to setting the wages of
industry as a whole, he speaks from an extensive base of personal experience and reflection. A
contemporary example of his point would be to consider the catastrophe he did not foresee: how
arbitration of wages in baseball has almost destroyed the American national pastime. Mandatory
wage arbitration provides an even more dramatic example, because it has bankrupted quite a
number of municipal governments.54

So far as Aristotle is concerned, I think it is telling to reflect on the fact that the two most
important thinkers about legal theory in the English language in the twentieth century, H.L.A.
Hart and Fuller, both considered Aristotle the person who had something important to say about
justice. In The Concept of Law, Hart begins his chapter on justice by explicating the distinction
between corrective and distributive justice from Aristotle.55 The topic was certainly familiar to
him, since he had studied it intensively during his undergraduate study of the classics, known as

51
See Fuller, The Morality of Law 96-97 (rev. ed. 1969).
52
Fuller, Some Reflections on Legal and Economic Freedoms--A Review of Robert L. Hale's "Freedom Through
Law," 54 Colum. L. Rev. 70, 81-82 (1954).
53
Summers, Lon L. Fuller 7 (1984).
54
For an impressive list of instances, see Shikla Dalmia, The ‘Free Choice’ Act and Binding Arbitration, The Wall
St. J., July 11-12, 2009, page A11.
55
H.L.A. Hart, the Concept of Law 157-67 (2d ed. 1994).
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“Greats,” at Oxford.56 Fuller likewise considered Aristotle’s distinction so important that, for his
The Problems of Jurisprudence in 1949, he did his own very loose translation of chapter 5 of the
Nichomachean Ethics.57 Thus, some 2500 years later, Aristotle’s distinction between corrective
and distributive justice still stands as foundational to our understanding of how to think about
justice. A skeptic might complain that we have not made as much progress as we would like to
think we have. Fuller, in contrast, would point out that Aristotle’s distinction has stood the test
of time precisely because it is procedural in nature, and thereby has avoided substantive
conclusions that would become outmoded with the passage of time.

B. Managerial Direction and the Limits of Justice

In the final Chapter of the original edition of The Morality of Law, Fuller implies that he intends
to address the question of the external morality of law.58 That project promises that we will
finally be treated to his views on the content of justice. As we read through the chapter,
however, we discover that he has assembled a litany of failures to achieve justice because of
errors of a procedural nature.59 Among these we find a prominent presentation of Judge Henry
Friendly’s study of the operations of Federal Administrative Agencies, including the Civil
Aeronautics Board and the Federal Communications Commission.60 Judge Friendly’s
conclusion was that, despite valiant effort, these administrative agencies had failed completely to
develop anything recognizable as a system of rules by which to govern their operations. Fuller’s
observation was that the reason that the agencies had not developed any law was because they
were engaged in decisions in which they were making allocations, and allocative decisions by
their nature are particular and are therefore not susceptible to governance by general rule.61 The
newsprint example mentioned above provides a good example of a proposed misuse of the
adjudicative process. As Fuller endeavored to make very clear, adjudication assumes a body of
general rules which can be applied by a decision maker to the facts in evidence.62

The point carried so much significance for Fuller that he expanded it in the Chapter Five “Reply
to Critics” that he added to his original volume to constitute the Revised Edition of his book.63
There he developed the notion of “managerial direction” as a contrast to law as the governance
of human behavior by rules.64 Managerial direction includes the many allocative and directorial
functions carried out both by private enterprises as well as by governmental institutions. Not all
of these functions are susceptible to governance by rule because of the nature of the tasks

56
Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream 22, 28 (2004).
57
Fuller, The Problems of Jurisprudence 28 (temp. ed. 1949).
58
He titles the chapter “The Substantive Aims of Law.” Fuller, The Morality of Law 152 (rev. ed. 1969).
59
He addresses such topics as efficacy, id. at 155-57, effective legal action, id. at 168-70, and institutional design,
id. at 177-81.
60
Id. at 172-76. See Henry Friendly, The Federal Administrative Agencies: The Need for Better Definition of
Standards (1962).
61
Fuller states: “The attempt to accomplish such tasks [of economic allocation] through adjudicative forms is certain
to result in inefficiency, hypocrisy, moral confusions, and frustration.” The Morality of Law 173.
62
“A judge is one who applies some principle to the decision of the case; if there are no principles, then the decider
cannot be a judge—the case is not justiciable.” Fuller, Collective Bargaining and the Arbitrator, 1963 Wisc. L. Rev.
3, 28.
63
The Morality of Law 187-242 (rev. ed 1969).
64
Id. at 207.
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undertaken. Indeed, Fuller shows us that only five of the eight canons of the internal morality of
law can apply to managerial direction.65

Managerial direction requires a “rule-free response to changing conditions.”66 Decisions as to

who “should perform a particular task when” or who “will get how much of what” are the stuff
of managerial direction. Those decisions will call for the exercise of discretion by the decision
maker, a discretionary power of distributive justice not suitable for governance by general rule.
Intuitions about fairness may give us feelings of injustice regarding such exercises of discretion
that make judgments of an aspirational nature.67 We think of such decisions as applying to
which person merits receipt of a Nobel Prize. However, a similar exercise of discretion is
involved in awarding “Employee of the Month.” In this way, Fuller shows us that the limits of
Aristotle’s conceptions of procedural justice allow us to make judgments of justice only when
there are general rules which we can actually apply to situations. The absence of rules implies an
inability to make judgments of justice.

IV. Evolving Toward Justice

A. Principles of Social Order

In a more positive direction, Fuller’s exploration of the implications of Aristotle’s analysis of

justice led to his unprecedented development of the forms of social decision making. In an early
statement of his stand on what at that time he referred to as “the principles of social order,” he
linked them to his understanding of the central truth about natural law.

On the affirmative side, I discern, and share, one central aim common to all the schools of natural
law, that of discovering those principles of social order which will enable men to attain a
satisfactory life in common. It is an acceptance of the possibility of "discovery" in the moral
realm that seems to me to distinguish all the theories of natural law from opposing views. In
varying measure, it is assumed in all theories of natural law that the process of moral discovery is
a social one, and that there is something akin to a "collaborative articulation of shared purposes"
by which men come to understand better their own ends and to discern more clearly the means for
68
achieving them.

Fuller makes several important points in this brief quotation. First, he is interested in the method
of natural law as a necessary corrective to the limits of positivistic method. Second, he embraces
the possibility of moral discovery. These issues reflect both the influence of Aristotle as well as
Fuller’s fundamental orientation in the sociological theory of symbolic interactionism. The
originator of symbolic interaction George Herbert Mead expressed his view of the mind as a
combination of the I and the Me. One was the receiver of experience; the other was reflection

65
The requirements of generality and congruence between the rule and its enforcement do not apply to managerial
direction. The prohibition on retrospectivity is inapplicable. Id. at 208-209.
66
Id. at 214.
67
On the morality of aspiration, see id. at 5, on the problems of making judgments in an aspirational context, see id.
at 30-32.
68
Fuller, A Rejoinder to Professor Nagel, 3 Natural L.F. 83, 84 (1958).
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and interaction with the experience. The self was constructed of the combination of experience
and reflection.69

As it happens, Fuller told me that when he was studying symbolic interaction, he read Mead’s
followers like W. I. Thomas.70 Later, when Mead’s students posthumously published his
lectures, Mind, Self and Society,71 Fuller was involved with other research and never read
Meade’s book. Yet, in his response to Hart in the 1958 debate in the Harvard Law Review, he
defined morality as the product of a process of experience and discussion.72 Because discussion
is reflection carried out in a social setting, we find a perfect parallel between Mead’s experience
and reflection for the individual and Fuller’s experience and discussion as the way in which
morality is continually generated within society. Since the morality is continually evolving, the
notion of moral discovery is firmly embedded within it. Moreover, this conception of morality
arises from the same methodological assumption as his exploration of the principles of social
order.

B. The Possibility of Moral Progress

Even more importantly, the possibility of moral discovery necessarily implies the possibility of
moral progress. As it turns out, Fuller affirmed that belief quite explicitly. In 1965 in Irrigation
and Tyranny in the Stanford Law Review73 he expresses, more clearly than in previous work, his
belief in the possibility of human progress, the possibility of moral evolution.

So, if humanity has over the centuries shown some slight capacity to outgrow its inclination
toward and its dependence upon despotism, this growth reflects not only the increasing
availability of social alternatives to despotic rule, but also an increasing moral disposition to
employ these alternatives which has itself been nurtured by actual experience with their use.74

What Fuller shows us here might seem surprising in light of the intellectual modesty that
restrained him from articulating anything concrete about substantive justice. Yet, he expresses
cautious optimism with respect to the possibility of continuing moral discovery, even of further
moral evolution. He foreshadows that belief in his early work in which he imagined the
possibility of the discovery of new forms of social order. In this later work, he becomes more
specific in envisioning new ways of organizing social life, of directing human affairs that had not
previously been conceived. Although we find it impossible to imagine what has not been
invented yet, if we look back in time, we see an impressive history of human invention of
institutions of social organization and governance.75 Courts, legislatures, and executives all look

69
G.H. Mead, Mind, Self and Society 197 (1934).
70
For an example, see Fuller, American Legal Realism, 82 U. Pa. L. Rev. 429, 455 (1934) (referring to Thomas’
“definition of the situation”).
71
Mead, supra note 69.
72
Morality consists of “generally shared views of right conduct that have grown spontaneously through experience
and discussion.” Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 638
(1958).
73
Fuller, Irrigation and Tyranny, 17 Stan. L. Rev. 1021 (1965).
74
Id. at 1034.
75
Schwartz and Miller, Legal Evolution and Societal Complexity, 70 Amer. J. Soc. 159 (1964).
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very different today than they did 300 years ago, 600 years ago, 1,000 years ago. Moreover, if
we reach far enough back in our social evolution, we can find no institution that we would call a
legislature. Whatever institutions that existed then do not fall into our neat categorization of the
branches of government.

For example, we now take police for granted, but policing is a recent invention that is only about
200 years old. The Bobbies in London received their name in popular speech from the fact that
the Prime Minister at the time, Sir Robert Peel, came up with the idea for a permanent and more
or less professionalized policing force, an institution that had not previously existed.76 A further
example would be the administrative agencies that now abound. A century ago they were quite a
new idea. Many other examples could be explored, but the point is that it is possible to think of
new ways of organizing things that can help us to improve the structure of our social order.
What Fuller finds here is the link between the discovery of new forms of social order and the
possibility of moral progress. That result is far from guaranteed; its achievement depends upon
human effort, upon our joint good will, and upon our willingness to engage in real
communication.

V. Communication as the Road to Substantive Justice

Indeed, Fuller came to believe that our willingness to undertake the effort to achieve
communication constitutes the really critical element in our endeavor to discover justice. At the
very end of the final chapter of the original edition of The Morality of Law, Fuller responds to
H.L.A. Hart’s contention that the goal of personal survival provides a minimum content of
natural law.77 Fuller expresses his hope that we can manage some degree of human striving
greater than mere survival. Instead, Fuller stakes a bold claim for the central importance of
communication as a defining characteristic of human existence:

If I were asked, then, to discern one central indisputable principle of what may be called
substantive natural law--Natural Law with capital letters--I would find it in the injunction: Open
up, maintain, and preserve the integrity of the channels of communication by which men convey
to one another what they perceive, feel, and desire. . . . And if men will listen, that voice . . . can
be heard across the boundaries and through the barriers that now separate men from one
another.78

Communication provides the means by which we engage in that process of reflection and
discussion of our experience, a process that Fuller had earlier conceived of as producing our
views of morality.79 Moreover, communication provides the means by which we can hope to
participate in the ongoing process of moral discovery. In this Symposium, Emily Hartegan’s
contribution especially impresses me.80 She undertakes efforts at communication across
significant distances of value judgment. In discussion, several participants expressed rather

76
Hall and Albion, A History of England and the British Empire 598 (3d ed. 1953).
77
H.L.A. Hart, The Concept of Law 192-93 (2d ed. 1994).
78
Fuller, The Morality of Law 186 (rev. ed. 1969).
79
Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 638 (1958).
80
Hartegan,
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strong skepticism at the success her efforts might have in bridging such impressive cultural gaps.
However, I believe that Fuller would heartily applaud her efforts.

A. How Communication Works: A Case Study

I believe that Fuller would approve of Professor Hartegan’s efforts precisely because he himself
took on a communicative challenge that was even greater at the time. In 1961, Fuller made an
extended visit to Poland.81 The Soviet bear held Poland in its secure grip. Because Poland was
behind what Winston Churchill had called the Iron Curtain,82 Americans perceived it to be part
of the Soviet threat. Nor did the United States see any possible chinks in the Soviet armor.
Fuller’s travels in Poland were far from the typical American academic excursion. He spent six
weeks there, speaking with leading legal and judicial officials and important members of the
academic community. When he returned, he drafted an extensive report of more than forty
single-spaced typed pages.83 Most remarkably, he had no plans to publish this report of his
investigations. He intended his report for private circulation. Among those on his list to receive
a copy was his former student at Duke University Law School, Richard M. Nixon. Nixon had
served as Vice-President under Dwight David Eisenhower. He had then lost very narrowly to
John F. Kennedy in the disputed presidential election of 1960. He held solid credentials as a
vigorous cold war opponent of world communism.
Nixon did not at first respond to the report when he received it from Professor Fuller, so Fuller
sent him another copy.84 Fuller had reported his earth-shattering opinion that the Polish officials
with whom he spoke were open to communication. Nixon now responded that he was shocked
at the suggestion, that he believed eternal vigilance was necessary against the Communist
menace, but that he valued Professor Fuller’s insights.85 The seed of an idea had been planted.
Fuller emphasized his point in the conclusion to his book quoted above: “Open up, maintain, and
preserve the integrity of the channels of communication.”86 Six years later when Nixon ran
successfully for President, he chose Henry Kissinger as his National Security Advisor. Detente
with the USSR’s Leonid Brezhnev ensued, capped by Nixon’s famous visit to Communist China.
Political observers are generally agreed that only someone with the solid anti-communist
credentials that Nixon possessed could have managed to pull off such a complete about-face in
U.S. policy. Nixon’s initiatives to the communist world began the process that culminated more
quickly than one could have imagined in the destruction of the Berlin wall and the disintegration
of the USSR. We cannot know what prospects Fuller thought possible when he drafted his

81
I have treated this historical vignette at greater length in Robert C.L. Moffat, How Can Law Pave the Road to
Perpetual Peace? What Law Does and What Law Does Well, in Kant and the Problems of the Contemporary World
295-302 (Krakow, Poland: Jagellonian University Press, Justyna Miklaszewska ed. 2006).
82
The phrase appears in a speech by Churchill at Westminster College in Fulton, Missouri, on March 5, 1946. See
also Hall & Albion, A History of England, supra at 1038.
83
Lon Fuller, An Unsolicited Report on Poland (43 pages) 1961, on file at the Richard Nixon Library, Yorba Linda,
California.
84
Letter from Lon Fuller to Richard Nixon, dated November 14, 1961, on file at the Richard Nixon Library, Yorba
Linda, California.
85
Letter from Richard Nixon to Prof Lon Fuller, dated November 30, 1961, on file at the Richard Nixon Library,
Yorba Linda, California.
86
Lon Fuller, The Morality of Law, New Haven, Yale University Press, 1964, p. 186.
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extensive report, and he did not live to see the fall of the USSR.87 What we can know decisively
is that, at the time he wrote it, very few thought that communication with those behind the Iron
Curtain held any promise whatsoever.
B. How to Thwart Communication and Obstruct the Quest for Justice

Although the case in favor of efforts to communicate is clear, we must also be aware of the
conditions that are essential for the process of communication to be effective. Fuller assumed
the effectiveness of argumentation in the process of justification. However, in order for that
process to work, the fundamentals of all successful communication must be observed. Clearly,
the discussion must be open. As Professor Ehrenreich indicates in her Introductory Essay, the
discussion must be free of dogma. The exchange of views must shun absolutes. We should
beware of anyone who claims to have final answers. We must ignore anyone who contends that
no more debate or discussion is needed.

Indeed, that contention characterizes the most evil of governments. Cutting off debate and
controlling communication in general are indispensable tools of despotic regimes. Both Hitler
and Stalin were masters of controlling the flow of accurate information and replacing it with
disinformation, a term made notorious by the Soviets. We see this phenomenon at work at the
present time in the efforts of the Iranian mullahs to suppress the protests of their subjects, who
believe that those rulers rigged the results of the recent election.88 At the present time, an
unfortunate number of other practitioners of this evil art range around the globe in countries from
Burma with its loathsome generals to Venezuela and its would-be President-for-Life Hugo
Chavez.

Why is open communication so vital? We must recall that for Fuller the process of natural law is
one of moral discovery. How then can we call time out at some point? How could we allow
anyone to declare “Now we have the answers; the codes will be promulgated tomorrow; and they
will provide all you need to know about the requirements of substantive justice?” Why should
we believe that the process of moral discovery has come to a screeching halt all of a sudden?
Does it not seem arrogant to claim that human knowledge is now complete? Why should we
accept that there is no more discovering to be done; that our insight is now perfect? The Apostle
Paul made many claims of humility, but we can be forgiven for wondering if all his claims were
entirely sincere. In I Corinthians, however, he foresaw perfect knowledge, but not until he
reached heaven. There, he thought, he would no longer see as through a glass darkly, but then
face to face, he thought "shall I know even as also I am known.”89

So that kind of perfect understanding in which the process of moral discovery can reach its final
culmination may be a destination that can be reached only in the perfection of a heaven. If the
religious motif is bothersome, we could consult the noted atheist Richard Dawkins. He might

87
Fuller died in 1978.
88
For a penetrating analysis, see Edward Luttwak, Iran’s Regime Will Never Be the Same, The Wall St. J., June 24,
2009, page A15.
89
1 Corinthians 13: 12 (KJV). See The Bible: An American Translation (Goodspeed trans. 1939) (“If there is
knowledge, it will pass away.” id. at 8b; “For now we are looking at a dim reflection in a mirror, but then we shall
see face to face. Now my knowledge is imperfect, but then I shall know as fully as God knows me.” id. at 12).
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suggest that at some point in the future we will be revisited by the aliens from outer space.90
Those beings might now decide that we have evolved enough that we are ready to be blessed (or
cursed?) with perfect knowledge. Fuller did not imagine anything so fanciful. The realm of
human possibility, as he saw it, condemns us to continue trudging along, engaging, if we are
persistent, in the process of moral discovery.

What Fuller did see was how easy it is to obstruct the process of moral discovery. He noted that
the great judges, like Benjamin Cardozo91 and Lord Mansfield,92 depended on argumentation as
a vehicle to produce justifications that would in turn generate the moral discovery of new
insights into the demands of justice. On the other hand, he saw clearly how important despots
found the need to suppress debate and control information.93 Their claim that their dogma
provides the enshrinement of perfect justice means that no more argumentation is necessary.
The despot has the answers and anyone who disagrees will shut up or be shut away. Suppression
of debate brings to a halt the process of moral discovery.

We may be surprised to learn that Fuller’s conception of moral discovery includes the entire
range of social discoveries, including even those of science. Those who consider themselves
guardians of absolute truth do not hesitate to obstruct any exploration that threatens their
dogmatic hegemony. The tribulations visited upon Galileo are famous.94 Stalin brought to a halt
progress in biological research in the Soviet Union by commanding that Lysenko’s theory must
be accepted.95 More modest, yet important, examples are provided when school boards follow a
political agenda in deciding what must be included in or excluded from the curriculum.96
Similarly, in too many university departments, alternative views are simply not voiced.97 But, in
any discipline where you terminate debate, you likewise foreclose further progress in the process
of moral discovery.

The whole lengthy debate regarding what has come to be called “hate speech” presents us with
an agonizing dilemma.98 Speech that is as obnoxious as the actions of the Iranian mullahs

90
He expressed the idea in an interview with Ben Stein that was included in the documentary Expelled: No
Intelligence Allowed (2008). He offered a more extensive explanation of his view in an interview with Terry Gross
on “Fresh Air” WHYY Philadelphia, March 28, 2007, http://www.youtube.com/watch?v=kNu8F01BD9k
91
Cardozo, The Nature of the Judicial Process (1921).
92
His most famous statement of his judicial philosophy is found in the argument he made while he was still
Solicitor-General Murray: “All occasions do not arise at once; . . . a statute very seldom can take in all cases,
therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for this reason
superior to an act of parliament.” Omychund v. Barker, 1 Atk. 21, 33, 26 Eng. Rep. 15, 22-23 (Ch. 1744).
93
See, e.g., Fuller, The Morality of Law 123 (rev. ed. 1969).
94
See Stillman Drake, Galileo at Work: His Scientific Biography (1978).
95
“In August, 1948 Lysenko triumphantly announced to the Academy of Science that his biological views had been
approved by the Central Committee of the Communist Party and members rose as one man to acclaim this decision.”
Michael Polanyi, Personal Knowledge 238 (1958).
96
See, e.g., Randall Hall, Unnatural Selection: The Fundamentalist Crusade against Evolution and the New
Strategies to Discredit Darwin, 17 U. Fla. J. Pub. Pol’y (2006).
97
See, e.g., Collier, Affirmative Action and the Decline of Intellectual Culture, 55 J. Leg. Ed. 3 (2005); id.,
Intellectual Authority and Institutional Authority, 35 Inquiry 145-81 (1992), reprinted in 42 J. Leg. Ed. 151 (1992).
98
For example, see the fine work of my colleague Charles Collier, Meaning in Law: A Theory of Speech. New York
& Oxford: Oxford University Press, 2009; id., Speech and Communication in Law and Philosophy, 12 Legal Theory
1-17 (2006); id., Hate Speech and the Mind-Body Problem: A Critique of Postmodern Censorship Theory,
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suggests that we must try to stamp out whatever we can. Yet those codes may backfire, and we
are left to worry about the emotions that may be pushed underground. Moreover, even for the
best of motivations, we risk endangering the climate of moral discovery with the great chill of
threatened censorship. We need to consider the counsel of cooler heads like Dean Martha
Minow who advise against privileging the victim mentality.99

Efforts to enlarge the range of those with whom we endeavor to communicate seem essential to
future progress. However, some of those with whom we might try to communicate hold truly
loathsome views. What standards can we develop to guide us in determining when such efforts
may be worthwhile? Moreover, can we generate a clearer distinction between the complete
surrender of values implied in absolute cultural relativism and genuine steps to bridge broad
chasms of cultural norms? Such questions make clear to me that we have much more work to do
in carrying out the indispensable task of communication.

VI. Conclusion

As I said at the beginning, the goal of this essay is to provide some perspective in our search for
substantive justice. Its objective is to assist in the endeavor to say something positive about the
substantive content of justice. In particular, the method employed has been to share the insights
generated in the life-long exploration of natural law carried out by Lon Fuller. His outlook can
be better understood by exploring the state of legal thinking that the young Fuller found as he
embarked on his academic career. That setting explains why Fuller turned to natural law, as well
as the distinctive perspective he developed. More specifically, his approach to natural law
avoided its substantive side for three reasons. First, claims of natural law really turned out to be
a competing form of positive law. Second, when looked at in historical perspective, substantive
natural law quickly became dated. Finally, he found many claims of substantive natural law to
be shocking in their claim to absolute truth.

In place of those blind alleys, Fuller looked for the foundations of justice in the realm of
procedure--in the largest sense of that word.100 Building upon Aristotle’s classic analysis of
distributive and corrective justice, he advocated exploring the principles of social order. That
work produced many insights, including his distinction between law and managerial direction
and the consequent limits on the judgments of justice we are able to make. In a positive
direction, he began the work of showing us how the principles of social order offer an
evolutionary path toward a greater understanding of justice. Finally, that evolutionary theme
culminates in his statement of faith in the possibility of moral progress.

Even so, moral progress is merely a possibility. Having confronted the horrors of the Second
World War as he did,101 Fuller could not countenance unbridled optimism. Amazingly though,

7 Legal Theory 203-34 (2001).

99
Minow, Surviving Victim Talk, 40 UCLA L. Rev. 1411 (1993).
100
“[T]he word ‘procedural’ should be assigned a special and expanded sense.” Fuller, The Morality of Law 97 (rev.
ed. 1969).
101
Among many examples, see Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev.
630, 648-57 (1958).
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he was still able to believe in the possibility of positive work toward the achievement of greater
knowledge of substantive justice. Progress toward that goal comes only through employment of
real communication, however; not the easy communication with those of like minds. Rather,
Fuller anticipated the challenging kind of communication with those who hold very different
views. For him, this postulate was no mere academic idea. He put it into work in his path-
breaking efforts with the Polish officials who were then viewed as being imprisoned behind an
impenetrable Iron Curtain. His effort shows us what communication can achieve. At the same
time, we must not allow ourselves to forget that there are many roadblocks to successful
communication, just as there are many whose efforts to protect their own dogmas will happily
strive to obstruct our quest for justice.

VII. A Project Proposing Further Exploration in our Quest for Justice

On the basis of this rudimentary outline of Fuller’s views regarding justice, I suggest a question
for further study. What might be the link between conceptions of law held by those engaged in
Critical Studies of Law and limitations both on perceptions of justice and on the scope of
criticism produced?

Exploring Fuller’s views suggests strongly that the conception of law we hold has a direct impact
on what we see as possible in the nature of justice. Critical Studies of Law have in general
followed American Legal Realism in adopting the particular command version of legal
positivism.102 As we have seen, that version of legal positivism has no room for the application
of general rules. We also noted that it is general rules which allow us to make judgments of
justice.103 Hence, we must ask whether a positivist view of law has obstructed those who pursue
Critical Studies of Law in their efforts to conceive of substantive justice. If so, that raises some
additional foundational questions.

Obviously, scholars engaged in Critical Studies of Law are not going to abandon criticism of the
law. However, criticism of the law implies some standards of justice from which to make value
judgments. Exploration of Fuller’s thinking reveals the larger comprehension of justice that is
possible when our horizons escape the limitations of legal positivism. Consequently, the real
challenge for Critical Studies of the law is whether they can continue to provide critique if they
adopt a non-positivist view of law? One of the important aspects of a non-positivist view of law
is that it embraces fully the social foundations of the law. From a critical standpoint, part of the
problem with a sociological view of law might be that it could be taken to imply a positive
acceptance of the law as the law in action.104 That aspect of a non-positivist view of law surely
concerns those engaging in criticism of the law. On the other hand, a sociological view of law
also provides a larger and deeper target of criticism. Paradoxically then, a legal positivist view

102
See, e.g., Note, Round and Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95
Harv. L. Rev. 1669 (1982) (arguing that recognizing the historical contingency of the law is a first step toward social
and political change because this realization removes "the sense of necessity inherent in perceptions of the present
social order").
103
See text accompanying notes 58-67 supra.
104
Pound, Law in Books and Law in Action, 44 Am L. Rev. 12 (1910).
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of law has limited the scope of criticism of the legal system provided by many critical studies of
the law.

Stated in an oversimplified way, criticism based on a legal positivist view of law is condemned
to remain superficial, in the sense that the social foundations of the law remain unexplored.
What is unexplored, of course, will not be subjected to critical reflection, as the distinguished
critical philosopher Robert Paul Wolff observed in praising Fuller’s contribution to legal
philosophy.105 In previous work, I have concluded that appraisals of law and the legal system
that dig into the social foundations of the law produce a much deeper and more radical critique
than those that look only at the law in a positivist sense.106 Consequently, we should anticipate
the generation of more penetrating criticism if the sociological roots of law are explored.
Clinging doggedly to a positivist view of law seems perversely obstinate in the face of
knowledge that critical projects founded on a deeper exploration of law and society promise to
further our understanding of the continuing demands of and for justice.

105
“Fuller’s theory . . . is in fact potentially revolutionary, for it defines standards against which actual law can be
measured and rejected as inadequate.” Wolff, Afterword, in The Rule of Law 243, 251 (Wolff ed. 1971).
106
“[T]he common thread pulling together [these most radical] approaches . . . is a focus on the social dimension of
society and law. That same theme characterizes the approaches of Marx, Pashukanis, and Habermas. Such
approaches find too limiting the individualism of liberal theories such as utilitarianism and legal positivism.”
Editors’ Introduction, Radical Critiques of the Law 1, 16 (Stephen Griffin & Robert Moffat eds. 1997).
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Distributive Justice
Robert Nozick

From Anarchy, State, and Utopia, 149-182, with omissions. Copyright @ 1974 by
Basic Books, Inc. Reprinted by permission of Basic Books, a subsidiary of Perseus
Books Group, LLC.

The minimal state is the most extensive state that can be justified. Any state more
extensive violates people's rights. Yet many persons have put forth reasons
purporting to justify a more extensive state. It is impossible within the compass of
this book to examine all the reasons that have been put forth. Therefore, I shall
focus upon those generally acknowledged to be most weighty and influential, to
see precisely wherein they fail. In this chapter we consider the claim that a more
extensive state is justified, because necessary (or the best instrument) to achieve
distributive justice; in the next chapter we shall take up diverse other claims.
The term "distributive justice" is not a neutral one. Hearing the term "distribution,"
most people presume that some thing or mechanism uses some principle or criterion to
give out a supply of things. Into this process of distributing shares some error may
have crept. So it is an open question, at least, whether redistribution should take
place; whether we should do again what has already been done once, though poorly.
However, we are not in the position of children who have been given portions of
pie by someone who now makes last minute adjustments to rectify careless cutting.
There is no central distribution, no person or group entitled to control all the
resources, jointly deciding how they are to be doled out. What each person gets, he
gets from others who give to him in exchange for something, or as a gift. In a free
society, diverse persons control different resources, and new holdings arise out of the
voluntary exchanges and actions of persons. There is no more a distributing or
distribution of shares than there is a distributing of mates in a society in which
persons choose whom they shall marry. The total result is the product of many
individual decisions which the different individuals involved are entitled to make.
Some uses of the term "distribution," it is true, do not imply a previous distributing
appropriately judged by some criterion (for example, "probability distribution");
nevertheless, despite the title of this chapter, it would be best to use a terminology that
clearly is neutral. We shall speak of people's holdings; a principle of justice in
holdings describes (part of) what justice tells us (requires) about holdings. I shall state
first what I take to be the correct view about justice in holdings, and then turn to the
discussion of alternate views.

Section 1

The Entitlement Theory

The subject of justice in holdings consists of three major topics. The first is the
original acquisition of holdings, the appropriation of unheld things. This includes the
issues of how unheld things may come to be held, the process, or processes, by
which unheld things may come to be held, the things that may come to be held by

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these processes, the extent of what comes to be held by a particular process, and so on.
We shall refer to the complicated truth about this topic, which we shall not
formulate here, as the principle of justice in acquisition. The second topic concerns
the transfer of holdings from one person to another. By what processes may a person
transfer holdings to another? How may a person acquire a holding from another who
holds it? Under this topic come general descriptions of voluntary exchange, and gift
and (on the other hand) fraud, as well as reference to particular conventional details
fixed upon in a given society. The complicated truth about this subject (with
placeholders for conventional details) we shall call the principle of justice in
transfer. (And we shall suppose it also includes principles governing how a person
may divest himself of a holding, passing it into an unheld state.)

If the world were wholly just, the following inductive definition would
exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in

acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in
transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.

The complete principle of distributive justice would say simply that a distribution is
just if everyone is entitled to the holdings they possess under the distribution.

A distribution is just if it arises from another just distribution by legitimate means.

The legitimate means of moving from one distribution to another are specified by
the principle of justice in transfer. The legitimate first "moves" are specified by the
principle of justice in acquisition. Whatever arises from a just situation by just
steps is itself just. The means of change specified by the principle of justice in
transfer preserve justice. As correct rules of inference are truth-preserving, and any
conclusion deduced via repeated application of such rules from only true premisses
is itself true, so the means of transition from one situation to another specified by the
principle of justice in transfer are justice-preserving, and any situation actually
arising from repeated transitions in accordance with the principle from a just
situation is itself just. The parallel between justice-preserving transformations and
truth-preserving transformations illuminates where it fails as well as where it holds.
That a conclusion could have been deduced by truth-preserving means from
premisses that are true suffices to show its truth. That from a just situation a situation
could have arisen via justice-preserving means does not suffice to show its justice.
The fact that a thief's victims voluntarily could have presented him with gifts does
not entitle the thief to his ill-gotten gains. Justice in holdings is historical; it
depends upon what actually has happened. We shall return to this point later.

Not all actual situations are generated in accordance with the two principles of
justice in holdings: the principle of justice in acquisition and the principle of
justice in transfer. Some people steal from others, or defraud them, or enslave them,

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seizing their product and preventing them from living as they choose, or forcibly
exclude others from competing in exchanges. None of these are permissible modes
of transition from one situation to another. And some persons acquire holdings by
means not sanctioned by the principle of justice in acquisition. The existence of past
injustice (previous violations of the first two principles of justice in holdings) raises
the third major topic under justice in holdings: the rectification of injustice in
holdings. If past injustice has shaped present holdings in various ways, some
identifiable and some not, what now, if anything, ought to be done to rectify these
injustices? What obligations do the performers of injustice have toward those whose
position is worse than it would have been had the injustice not been done? Or, than
it would have been had compensation been paid promptly? How, if at all, do
things change if the beneficiaries and those made worse off are not the direct parties
in the act of injustice, but, for example, their descendants? Is an injustice done to
someone whose holding was itself based upon an unrectified injustice? How far back
must one go in wiping clean the historical slate of injustices? What may victims of
injustice permissibly do in order to rectify the injustices being done to them,
including the many injustices done by persons acting through their government? I
do not know of a thorough or theoretically sophisticated treatment of such issues.
Idealizing greatly, let us suppose theoretical investigation will produce a principle
of rectification. This principle uses historical information about previous situations
and injustices done in them (as defined by the first two principles of justice and
rights against interference), and information about the actual course of events that
flowed from these injustices, until the present, and it yields a description (or
descriptions) of holdings in the society. The principle of rectification presumably
will make use of its best estimate of subjunctive information about what would
have occurred (or a probability distribution over what might have occurred, using
the expected value) if the injustice had not taken place. If the actual description of
holdings turns out not to be one of the descriptions yielded by the principle, then one
of the descriptions yielded must be realized.

The general outlines of the theory of justice in holdings are that the holdings of a
person are just if he is entitled to them by the principles of justice in acquisition
and transfer, or by the principle of rectification of injustice (as specified by the
first two principles). If each person's holdings are just, then the total set
(distribution) of holdings is just. To turn these general outlines into a specific
theory we would have to specify the details of each of the three principles of
justice in holdings: the principle of acquisition of holdings, the principle of
transfer of holdings, and the principle of rectification of violations of the first two
principles. I shall not attempt that task here (Locke's principle of justice in
acquisition is discussed below.)... .

How Liberty Upsets Patterns

It is not clear how those holding alternative conceptions of distributive justice can
reject the entitlement conception of justice in holdings. For suppose a distribution
favored by one of these non-entitlement conceptions is realized. Let us suppose it is

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your favorite one and let us call this distribution D1; perhaps everyone has an equal
share, perhaps shares vary in accordance with some dimension you treasure. Now
suppose that Wilt Chamberlain is greatly in demand by basketball teams, being a great
gate attraction. (Also suppose contracts run only for a year, with players being free
agents.) He signs the following sort of contract with a team: In each home game,
twenty-five cents from the price of each ticket of admission goes to him. (We
ignore the question of whether he is "gouging" the owners, letting them look out
for themselves.) The season starts, and people cheerfully attend his team's games;
they buy their tickets, each time dropping a separate twenty-five cents of their
admission price into a special box with Chamberlain's name on it. They are excited
about seeing him play; it is worth the total admission price to them. Let us suppose
that in one season one million persons attend his home games, and Wilt
Chamberlain winds up with $250,000, a much larger sum than the average income
and larger even than anyone else has. Is he entitled to this income? Is this new
distribution D 2, unjust? If so, why? There is no question about whether each of the
people was entitled to the control over the resources they held in D,; because that
was the distribution (your favorite) that (for the purposes of argument) we assumed
was acceptable. Each of these persons chose to give twenty-five cents of their money
to Chamberlain. They could have spent it on going to the movies, or on candy
bars, or on copies of Dissent magazine, or of Monthly Review But they all, at least one
million of them, converged on giving it to Wilt Chamberlain in exchange for
watching him play basketball. If D, was a just distribution, and people voluntarily
moved from it to D2, transferring parts of their shares they were given under D, (what
was it for if not to do something with?), isn't D, also just? If the people were
entitled to dispose of the resources to which they were entitled (under D,), didn't this
include their being entitled to give it to, or exchange it with, Wilt Chamberlain?
Can anyone else complain on grounds of justice? Each other person already has his
legitimate share under D1. Under Dp there is nothing that anyone has that anyone else
has a claim of justice against. After someone transfers something to Wilt Chamberlain,
third parties still have their legitimate shares; their shares are not changed. By what
process could such a transfer among two persons give rise to a legitimate claim of
distributive justice on a portion of what was transferred, by a third party who had
no claim of justice on any holding of the others before the transfer? To cut off
objections irrelevant here, we might imagine the exchanges occurring in a socialist
society after hours. After playing whatever basketball he does in his daily work, or
doing whatever other daily work he does, Wilt Chamberlain decides to put in
overtime to earn additional money. (First his work quota is set; he works time over
that.) Or imagine it is a skilled juggler people like to see, who puts on shows after
hours.

Why might someone work overtime in a society in which it is assumed their needs
are satisfied? Perhaps because they care about things other than needs. I like to write in
books that I read, and to have easy access to books for browsing at odd hours. It
would be very pleasant and convenient to have the resources of Widener Library in
my back yard. No society, I assume, will provide such resources close to each person
who would like them as part of his regular allotment (under DO. Thus, persons

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either must do without some extra things that they want, or be allowed to do
something extra to get some of these things. On what basis could the inequalities
that would eventuate be forbidden? Notice also that small factories would spring up
in a socialist society, unless forbidden. I melt down some of my personal possessions
(under D,) and build a machine out of the material. I offer you, and others, a
philosophy lecture once a week in exchange for your cranking the handle on my
machine, whose products I exchange for yet other things, and so on. (The raw
materials used by the machine are given to me by others who possess them under D1,
in exchange for hearing lectures.) Each person night participate to gain things over
and above their allotment under D,. Some persons even might want to leave their job
in socialist industry and work full time in this private sector. I shall say something
more about these issues in the next chapter. Here I wish merely to note how private
property even in means of production would occur in a socialist society that did
not forbid people to use as they wished some of the resources they are given under
the socialist distribution D1. The socialist society would have to forbid capitalist acts
between consenting adults.

The general point illustrated by the Wilt Chamberlain example and the example of the
entrepreneur in a socialist society is that no end-state principle of distributional
patterned principle of justice can be continuously realized without continuous
interference with people's lives. Any favored pattern would be transformed into
one unfavored by the principle, by people choosing to act in various ways; for
example, by people exchanging goods and services with other people, or giving
things to other people, things the transferrers are entitled to under the favored
distributional pattern. To maintain a pattern one must either continually interfere
to stop people from transferring resources as they wish to, or continually (or
periodically) interfere to take from some persons resources that others for some
reason chose to transfer to them. (But if some time limit is to be set on how long
people may keep resources others voluntarily transfer to them, why let them keep
these resources for any period of time? Why not have immediate confiscation?) It
might be objected that all persons voluntarily will choose to refrain from actions
which would upset the pattern. This presupposes unrealistically (1) that all will most
want to maintain the pattern (are those who don't, to be "reeducated" or forced to
undergo self-criticism"?), (2) that each can gather enough information about his
own actions and the ongoing activities of others to discover which of his actions
will upset the pattern, and (3) that diverse and far-flung persons can coordinate their
actions to dovetail into the pattern. Compare the manner in which the market is
neutral among persons' desires, as it reflects and transmits widely scattered
information via prices, and coordinates persons' activities.

It puts things perhaps a bit too strongly to say that every patterned (or end-state)
principle is liable to be thwarted by the voluntary actions of the individual parties
transferring some of their shares they receive under the principle. For perhaps some
very weak patterns are not so thwarted. Any distributional pattern with any
egalitarian component is overturnable by the voluntary actions of individual
persons over time; as is every patterned condition with sufficient content so as

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actually to have been proposed as presenting the central core of distributive justice.
Still, given the possibility that some weak conditions or patterns may not be unstable
in this way, it would be better to formulate an explicit description of the kind of
interesting and contentful patterns under discussion, and to prove a theorem about
their instability. Since the weaker the patterning, the more likely it is that the
entitlement system itself satisfies it, a plausible conjecture is that any patterning
either is unstable or is satisfied by the entitlement system....

Taxation of earnings from labor is on a par with forced labor. Some persons find
this claim obviously true: taking the earnings of n hours labor is like taking n
hours from the person; it is like forcing the person to work n hours for another's
purpose. Others find the claim absurd. But even these, if they object to forced
labor, would oppose forcing unemployed hippies to work for the benefit of the
needy. And they would also object to forcing each person to work five extra hours
each week for the benefit of the needy. But a system that takes five hours' wages in
taxes does not seem to them like one that forces someone to work five hours, since
it offers the person forced a wider range of choice in activities than does taxation
in kind with the particular labor specified. (But we can imagine a gradation of
systems of forced labor, from one that specifies a particular activity, to one that gives
a choice among two activities, to ... ; and so on up.) Furthermore, people envisage a
system with something like a proportional tax on everything above the amount
necessary for basic needs. Some think this does not force someone to work extra
hours, since there is no fixed number of extra hours he is forced to work, and
since he can avoid the tax entirely by earning only enough to cover his basic needs.
This is a very uncharacteristic view of forcing for those who also think people are
forced to do something whenever the alternatives they face are considerably worse.
However, neither view is correct. The fact that others intentionally intervene, in
violation of a side constraint against aggression, to threaten force to limit the
alternatives, in this case to paying taxes or (presumably the worse alternative) bare
subsistence, makes the taxation system one of forced labor and distinguishes it
from other cases of limited choices which are not forcings.

The man who chooses to work longer to gain an income more than sufficient for his
basic needs prefers some extra goods or services to the leisure and activities he could
perform during the possible nonworking hours; whereas the man who chooses not
to work the extra time prefers the leisure activities to the extra goods or services he
could acquire by working more. Given this, if it would be illegitimate for a tax
system to seize some of a man's leisure (forced labor) for the purpose of serving the
needy, how can it be legitimate for a tax system to seize some of a man's goods for
that purpose? Why should we treat the man whose happiness requires certain
material goods or services differently from the man whose preferences and desires
make such goods unnecessary for his happiness? Why should the man who prefers
seeing a movie (and who has to earn money for a ticket) be open to the required call
to aid the needy, while the person who prefers looking at a sunset (and hence need
earn no extra money) is not? Indeed, isn't it surprising that redistributionists choose to
ignore the man whose pleasures are so easily attainable without extra labor, while

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adding yet another burden to the poor unfortunate who must work for his pleasures?
If anything, one would have expected the reverse. Why is the person with the
nonmaterial or nonconsumption desire allowed to proceed unimpeded to his most
favored feasible alternative, whereas the man whose pleasures or desires involve
material things and who must work for extra money (thereby serving whomever
considers his activities valuable enough to pay him) is constrained in what he can
realize? ...

Locke's Theory of Acquisition

Before we turn to consider other theories of justice in detail, we must introduce an

additional bit of complexity into the structure of the entitlement theory. This is
best approached by considering Locke's attempt to specify a principle of justice in
acquisition. Locke views property rights in an unowned object as originating through
someone's mixing his labor with it. This gives rise to many questions. What are the
boundaries of what labor is mixed with? If a private astronaut clears a place on Mars,
has he mixed his labor with (so that he comes to own) the whole planet, the whole
uninhabited universe, or just a particular plot? Which plot does an act bring under
ownership? The minimal (possibly disconnected) area such that an act decreases
entropy in that area, and not elsewhere? Can virgin land (for the purposes of
ecological investigation by high-flying airplane) come under ownership by a Lockean
process? Building a fence around a territory presumably would make one the owner
of only the fence (and the land immediately underneath it).

Why does mixing one's labor with something make one the owner of it? Perhaps
because one owns one's labor, and so one comes to own a previously unowned thing
that becomes permeated with what one owns. Ownership seeps over into the rest.
But why isn't mixing what I own with what I don't own a way of losing what
I own rather than a way of gaining what I don't? If I own a can of tomato juice and
spill it in the sea so that its molecules (made radioactive, so I can check this)
mingle evenly throughout the sea, do I thereby come to own the sea, or have I
foolishly dissipated my tomato juice? Perhaps the idea, instead, is that laboring on
something improves it and makes it more valuable; and anyone is entitled to own a
thing whose value he has created. (Reinforcing this, perhaps, is the view that
laboring is unpleasant. If some people made things effortlessly, as the cartoon
characters in The Yellow Submarine trail flowers in their wake, would they have
lesser claim to their own products whose making didn't cost them anything?) Ignore
the fact that laboring on something may make it less valuable (spraying pink enamel
paint on a piece of driftwood that you have found). Why should one's entitlement
extend to the whole object rather than just to the added value one's labor has
produced? (Such reference to value might also serve to delimit the extent of
ownership; for example, substitute "increases the value of" for "decreases entropy
in" in the above entropy criterion.) No workable or coherent value-added
property scheme has yet been devised, and any such scheme presumably would fall
to objections (similar to those) that fell the theory of Henry George.

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It will be implausible to view improving an object as giving full ownership to it,
if the stock of unowned objects that might be improved is limited. For an object's
coming under one person's ownership changes the situation of all others. new idea
must convince to try it out; private property enables people to decide on the pattern
and types of risks they wish to bear, leading to specialized types of risk bearing;
private property protects future persons by leading some to hold back resources
from current consumption for future markets; it provides alternate sources of
employment for unpopular persons who don't have to convince any one person or
small group to hire them, and so on. These considerations enter a Lockean theory to
support the claim that appropriation of private property satisfies the intent behind the
"enough and as good left over" proviso, not as a utilitarian justification of property.
They enter to rebut the claim that because the proviso is violated no natural right
to private property can arise by a Lockean process. The difficulty in working such
an argument to show that the proviso is satisfied is in fixing the appropriate base
line for comparison. Lockean appropriation makes people no worse off than they
would be how? This question of fixing the baseline needs more detailed
investigation than we are able to give it here. It would be desirable to have an
estimate of the general economic importance of original appropriation in order to
see how much leeway there is for differing theories of appropriation and of the
location of the baseline. Perhaps this importance can be measured by the
percentage of all income that is based upon untransformed raw materials and given
resources (rather than upon human actions), mainly rental income representing the
unimproved value of land, and the price of raw material in situ, and by the
percentage of current wealth which represents such income in the past.

We should note that it is not only persons favoring private property who need a
theory of how property rights legitimately originate. Those believing in collective
property, for example those believing that a group of persons living in an area jointly
own the territory, or its mineral resources, also must provide a theory of how such
property rights arise; they must show why the persons living there have rights to
determine what is done with the land and resources there that persons living elsewhere
don't have (with regard to the same land and resources).

The Proviso

Whether or not Locke's particular theory of appropriation can be spelled out so as to

handle various difficulties, I assume that any adequate theory of justice in acquisition
will contain a proviso similar to the weaker of the ones we have attributed to Locke.
A process normally giving rise to a permanent bequeathable property right in a
previously unowned thing will not do so if the position of others no longer at
liberty to use the thing is thereby worsened. It is important to specify this
particular mode of worsening the situation of others, for the proviso does not
encompass other modes. It does not include the worsening due to more limited
opportunities to appropriate (the first way above, corresponding to the more stringent
condition), and it does not include how I "worsen" a seller's position if I appropriate
materials to make some of what he is selling, and then enter into competition with

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him. Someone whose appropriation otherwise would violate the proviso still may
appropriate provided he compensates the others so that their situation is not
thereby worsened; unless he does compensate these others, his appropriation will
violate the proviso of the principle of justice in acquisition and will be an
illegitimate one. A theory of appropriation incorporating this Lockean proviso will
handle correctly the cases (objections to the theory lacking the proviso) where
someone appropriates the total supply of something necessary for life.

A theory which includes this proviso in its principle of justice in acquisition must
also contain a more complex principle of justice in transfer. Some reflection of the
proviso about appropriation constrains later actions. If my appropriating all of a
certain substance violates the Lockean proviso, then so does my appropriating some
and purchasing all the rest from others who obtained it without otherwise violating
the Lockean proviso. If the proviso excludes someone's appropriating all the
drinkable water in the world, it also excludes his purchasing it all. (More weakly,
and messily, it may exclude his charging certain prices for some of his supply.) This
proviso (almost?) never will come into effect; the more someone acquires of a
scarce substance which others want, the higher the price of the rest will go, and the
more difficult it will become for him to acquire it all. But still, we can imagine, at
least, that something like this occurs: someone makes simultaneous secret bids to the
separate owners of a substance, each of whom sells assuming he can easily purchase
more from the other owners; or some natural catastrophe destroys all of the supply of
something except that in one person's possession. The total supply could not be
permissibly appropriated by one person at the beginning. His later acquisition of it
all does not show that the original appropriation violated the proviso (even by a
reverse argument similar to the one above that tried to zip back from Zto A).
Rather, it is the combination of the original appropriation plus all the later transfers
and actions that violates the Lockean proviso.

Each owner's title to his holding includes the historical shadow of the Lockean
proviso on appropriation. This excludes his transferring it into an agglomeration that
does violate the Lockean proviso and excludes his using it in a way, in coordination
with others or independently of them, so as to violate the proviso by making the
situation of others worse than their baseline situation. Once it is known that
someone's ownership runs afoul of the Lockean proviso, there are stringent limits
on what he may do with (what it is difficult any longer unreservedly to call)
"his property." Thus a person may not appropriate the only water hole in a desert
and charge what he will. Nor may he charge what he will if he possesses one,
and unfortunately it happens that all the water holes in the desert dry up, except for
his. This unfortunate circumstance, admittedly no fault of his, brings into
operation the Lockean proviso and limits his property rights. Similarly, an owner's
property right in the only island in an area does not allow him to order a castaway
from a shipwreck off his island as a trespasser, for this would violate the Lockean
proviso…

The fact that someone owns the total supply of something necessary for others to stay

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alive does not entail that his (or anyone's) appropriation of anything left some people
(immediately or later) in a situation worse than the baseline one. A medical researcher
who synthesizes a new substance that effectively treats a certain disease and who refuses
to sell except on his terms does not worsen the situation of others by depriving them
of whatever he has appropriated. The others easily can possess the same materials he
appropriated; the researcher's appropriation or purchase of chemicals didn't make
those chemicals scarce in a way so as to violate the Lockean proviso. Nor would
someone else's purchasing the total supply of the synthesized substance from the
medical researcher. The fact that the medical researcher uses easily available
chemicals to synthesize the drug no more violates the Lockean proviso than does
the fact that the only surgeon able to perform a particular operation eats easily
obtainable food in order to stay alive and to have the energy to work. This shows
that the Lockean proviso is not an "endstate principle"; it focuses on a particular
way that appropriative actions affect others, and not on the structure of the situation
that results.

Intermediate between someone who takes all of the public supply and someone who
makes the total supply out of easily obtainable substances is someone who
appropriates the total supply of something in a way that does not deprive the others
of it. For example, someone finds a new substance in an out-of-the-way place. He
discovers that it effectively treats a certain disease and appropriates the total supply.
He does not worsen the situation of others; if he did not stumble upon the substance
no one else would have, and the others would remain without it. However, as time
passes, the likelihood increases that others would have come across the substance;
upon this fact might be based a limit to his property right in the substance so that
others are not below their baseline position; for example, its bequest might be
limited. The theme of someone worsening another's situation by depriving him of
something he otherwise would possess may also illuminate the example of patents.
An inventor's patent does not deprive others of an object which would not exist if
not for the inventor. Yet patents would have this effect on others who independently
invent the object. Therefore, these independent inventors, upon whom the burden
of proving independent discovery may rest, should not be excluded from utilizing
their own invention as they wish (including selling it to others). Furthermore, a
known inventor drastically lessens the chances of actual independent invention. For
persons who know of an invention usually will not try to reinvent it, and the notion
of independent discovery here would be murky at best. Yet we may assume that in
the absence of the original invention, sometime later someone else would have
come up with it. This suggests placing a time limit on patents, as a rough rule of
thumb to approximate how long it would have taken, in the absence of knowledge
of the invention, for independent discovery.

I believe that the free operation of a market system will not actually run afoul of
the Lockean proviso.

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Journal of Human Development
Vol. 9, No. 3, November 2008

The Idea of Justice1

AMARTYA SEN
Amartya Sen is Lamont University Professor and Professor of Economics and
Philosophy at Harvard University, USA

1.
John Dryden wrote in 1698, in the Epistle to Peter Antony Motteux,
‘‘Words, once my stock, are wanting to commend/So great a poet and so
good a friend.’’ It is not easy to talk about a close friend, and I am afraid
this applies to me when I consider what to say about Mahbub ul Haq, or
even to talk on subjects that have been so radically influenced by Mahbub’s
contributions. My problems lie not only in the closeness of our personal
ties, but also in the difficulty in getting an adequate understanding of the
greatness of Mahbub ul Haq. Indeed, Mahbub ul Haq as a person was
much larger than all the parts that combined to make him the person he
was. He was, of course, an outstanding economist, a visionary social
thinker, a global intellectual, a major innovator of ideas who bridged
theory and practice, and the leading architect in the contemporary world
of the assessment of the process of human development. These
achievements are justly celebrated, but, going beyond the boundaries of
each, this was a human being whose combination of curiosity, lucidity,
open-mindedness, dedication, courage and creativity made all these
diverse achievements possible.
I have been extremely fortunate in knowing Mahbub for most of my —
and his — life. When I first met him as a fellow undergraduate at
Cambridge University more than half a century ago, in early October 1953,
neither of us was yet 20. Elegantly attired (at least by undergraduate
standards), Mahbub was walking rapidly down King’s Parade on his way to
the first lecture of the term by the redoubtable economist, Joan Robinson,
towards which I was also heading. We began a conversation while walking,
and Mahbub asked me whether I knew what to expect from Joan
Robinson’s lectures. I did not, of course.
In Mahbub’s mind there were huge expectations: Joan Robinson was
such an extraordinary leader of non-conformist economic thinking. But it
became clear to me within a few weeks that Mahbub was very disappointed
— as I must confess I was too — that despite Joan Robinson’s scintillating
reasoning and iconoclastic brilliance, she was such a real conformist in
judging economic progress largely by the pace of economic growth. The
19-year-old Mahbub told me, ‘‘She hasn’t done the numbers, has she?’’
ISSN 1464-9888 print/ISSN 1469-9516 online/08/030331-12 # 2008 United Nations Development Programme
DOI: 10.1080/14649880802236540

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 A. Sen

Then Mahbub told me something very like what would find expression in
his first book, The Strategy of Economic Planning published in 1963,
where he would write: ‘‘If India and Pakistan manage to maintain an
annual growth rate of 5% and pass through roughly the same ‘take-off’
period as [W.W.] Rostow identifies for many of the Western countries, the
per capita income after another twenty years will be no higher than the
present-day per capita income in Egypt.’’ I should explain that Mahbub
had nothing against Egypt, but he made sense when he looked at me and
asked, ‘‘Is that all you and I want? Can’t we do better in taking more
immediate action against the deprivations, the miseries and the injustices
in the world?’’ If Mahbub’s creative impatience was one of his life-long
characteristics, the commitment to do things without waiting was already
strong in the mind of the young man who, when I met him first, was
impatiently awaiting his adulthood.
When I visited Mahbub and his wife Khadija (or Bani) in Karachi in
Pakistan, almost ten years later, in the spring of 1963, Mahbub explained
to me what he had learned in his experience with the process of economic
planning in Pakistan (he was working for the Planning Commission of
Pakistan after his return from Cambridge, Yale and Harvard). There were
things that could be made to happen by making good use of applied
economic reasoning, but the barriers to progress were, he explained,
immense. As the sun set on a magically bewitching Karachi, Mahbub’s
voice rose and his intense analysis was radically heretical. He knew what to
confront, but was sceptical of any immediate means of doing it.
To make things happen, Mahbub later tried various routes, including
accepting senior Ministerial positions in a military-led government in
Pakistan, but the results would have been deeply disappointing for him.
But then he broadened his encounter to the world stage and made a huge
— and almost instant — impact. He left Pakistan to join the United Nations
in 1989, as a Special Adviser to the Administrator of the United Nations
Development Programme. It was in this capacity that he launched the
now-famous Human Development Reports, which have been published
annually since 1990. He gathered around him a dedicated team of
economists and social scientists. By the time Mahbub returned to Pakistan
in 1996 to establish the new Human Development Centre in Islamabad, he
could leave on a note of triumph, with clear evidence that the perspective
of human development was already well established and remarkably
influential right across the world.
I saw Mahbub last when he came to visit me at Trinity College in
Cambridge in 1998 shortly before his death. We talked not far from where
we had first met 45 years earlier. He was excited about a new initiative
especially for South Asia: to cut military expenditure drastically. The
subcontinental nuclear explosions, which occurred soon afterwards just
before Mahbub’s death, have not advanced the fulfilment of his dreams. And
yet Mahbub’s careful arguments against the arms race in the subcontinent —
and in general in the world — remain just as robust and strong today.
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2.
As my topic for this lecture I have chosen ‘the idea of justice.’ This is
only partly because I am right now fairly comprehensively immersed
in that subject (trying to complete my long-postponed book on the theory
of justice, called — like this lecture — The Idea of Justice), but also
because Mahbub ul Haq’s life can be usefully seen in the light of his
long battle against injustice in the world. He never theorized about
justice, perhaps because he did not want to be distracted from his practical
efforts to reduce the grip of privation and poverty in the world. There
was, however, a serious matter of taste here as well. In fact, Mahbub
had an almost instinctive aversion to talking about philosophy. Perhaps
he thought that philosophy could not but be rather abstract in content,
or diverting in consequence. In response to my spurring him to be
more explicit on his foundational ideas and basic philosophy, he
retaliated more than once to say ‘‘Why don’t you do it: tell me what my
philosophy is?’’
Well, I think that this Mahbub ul Haq Lecture might well be a good
occasion for me to try to do just that. In trying to rise to the challenge, I
should also explain that I do think that it is useful to try to persuade the
activists to tell us more about what drives them, because of the important
support that their practical commitments get from their implicit
philosophy. Since the discussant of this talk is George Soros — no less
— I thought this could perhaps be a particularly suitable topic on which to
get started here. There are few people in the world who can be compared
with Soros in terms of huge efforts to make the world less unjust and more
tolerable, and at the same time, he has often discussed, with powerful
reasoning, the basic philosophical ideas that have moved his dedicated
work.
Let me begin with the question: how do the ideas that have been so
influential in shaping Mahbub’s priorities and commitments relate to
modern political philosophy, in general, and to contemporary theories of
justice, in particular? Let me separate out four special features of what I
would argue is the conception of justice that lie behind Mahbub’s
priorities in his work (however implicit the connections might be). I shall
call them, respectively:
(1) focus on lives and freedom;
(2) linking responsibility to effective power;
(3) comparative, not transcendental, assessment; and
(4) globally unrestricted coverage.
In each of these respects, I would argue that this philosophy is in some
conflict, in varying degrees, with mainstream theories of justice in
contemporary philosophy.
I would also argue that these differences can be seen as the basis of
a critique of mainstream theories of justice in modern political philosophy.
Given the limited time available for this lecture, I can only touch the
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main points here rather briefly, although they do get more attention, along
with other issues, in my forthcoming book, The Idea of Justice.2

3.
The first issue — the focus on lives and freedoms — is easy to see in the
strategy of the human development approach. The breadth of that
understanding contrasts with the common attempt in mainstream
economics to see development in the narrow perspective of the expansion
of the supply of objects of convenience (represented, for example, by the
Gross Domestic Product or the Gross National Product). But it is not just
in mainstream economics that there is a tendency to miss this important
distinction. Much of modern political philosophy — led by the leading
political philosopher of our times, John Rawls — has tended to reflect, I
would argue, the same disorientation. Rawls’s own analysis of equity in the
interpersonal distribution of advantages is done through an index of what
Rawls calls ‘‘primary goods,’’ which are general-purpose means, like
income and wealth, rights and liberties, that are useful to achieve a variety
of ends that human beings may reasonably pursue. This fails to take into
account the wide variations that people have in being able to convert
primary goods into good living. For example, a disabled person can do far
less with the same level of income and other primary goods than can an
able-bodied human being. Income does less for a person’s freedom or
well-being if she is born in a country or a region with wide prevalence of
occasional epidemics and regular endemic diseases.
The expansion of primary goods is, of course, important, but we have
to take into account the variability of the relation between increases in
primary goods and the enhancement of basic human freedoms and
capabilities. This was one of my major preoccupations at the time when
Mahbub asked me to join him in developing the human development
perspective and to help him initiate the Human Development Reports. The
focus on capabilities links closely with the richness of human lives, and I
have to say it was extremely reassuring for me to see how the youthful
involvement of the 19-year-old Mahbub on human lives had matured well
into an implicit but extremely firm philosophical belief on the importance
of looking at human lives themselves, rather than at the commodity
possessions and other facilitating factors that have some influence over
our lives. The distinction here has, by now, been much discussed in the
literature and its implications have been widely explored in the
contributions of many economists, social scientists and philosophers.3

4.
I turn now to the second question, that of linking responsibility to effective
power. The underlying issue involved in this connection is, I think,
somewhat complicated and I can only make a brief statement here on the
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nature, relevance and reach of this issue (again promising a fuller

discussion in my book The Idea of Justice). What is the implicit
understanding in the human development approach, seen as a call to
action, of the responsibility of people to bring about the changes that
would enhance human development in the world? The question here is
not so much whether everyone will act according to what they see as
reasonable (that congruence is a different issue, demanding further
analysis), but what exactly they should see as reasonable and for what
particular reason.
Reasoned justification for social action is a big issue in political
philosophy, and theories of justice have tended to be based on some
presumption that all persons can gain from a social contract that goes
about setting up a just system. The arguments for this way of seeing things
were clearly presented by Thomas Hobbes and Jean-Jacques Rousseau,
and those arguments based on cooperative grounds have been centrally
important, in one form or another, in the mainstream political philosophy
of justice.
The big difference that John Rawls made to that approach was to start
from the demands of fairness to arrive at his principles of justice. This he
did through the device of a hypothetical ‘original position’ of primordial
equality when the parties involved have no knowledge of their respective
personal identities within the group as a whole. They have to choose,
under this ‘veil of ignorance’ (i.e. ignorance specifically about their own
personal interests and particular desires), what exact rules should govern
the society they are, as it were, about to ‘create.’ Rawls tries to get rid of
selfish reasoning in the derivation of principles of justice through a
hypothetical exercise, but the overwhelming motivation is to harvest the
mutual benefits from cooperation in that imagined original position.
There are several difficulties with this approach, some of which I will
discuss later on in this talk, but the idea of mutual obligations for social
cooperation because of joint benefits has become the central point of
concentration in mainstream theories of justice. There is, however,
another type of reasoning that does not focus on benefits of cooperation,
at least not exclusively, and which has been relatively neglected in on-
going political philosophy. It is based on the argument that if someone has
the power to make a change that he or she can see will reduce injustice in
the world, then there is a strong social argument for doing just that
(without having to dress all this up in terms of some imagined cooperative
benefits enjoyed by all). This obligation of effective power contrasts with
the mutual obligation for cooperation, at the basic plane of motivational
justification.
The point was made with clarity by Gautama Buddha, 2500 years ago,
in Sutta Nipata. Buddha argued that human beings have responsibility to
animals precisely because of the asymmetry between human beings and
other animals, not because of any symmetry that takes us to a contractarian
solution for efficient cooperation. He argued that since we are enormously
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more powerful than the other species, we have some responsibility

towards other species that links exactly with this asymmetry of power.
Buddha went on to illustrate the point by an analogy with the
responsibility of the mother towards her child, not because she has
given birth to the child (that connection is not invoked in this particular
argument — there is room for it elsewhere), but because she can do
things to influence the child’s life that the child itself cannot do.
The mother’s reason for action is not guided by the rewards of
cooperation, but precisely from her recognition that she can, asymme-
trically, do things for the child effectively that will make a huge difference
to the child’s life.
Mahbub’s informal understanding of social obligation fitted well with
this feature of responsibility of effective power. He was impatient with
having to give any reason to someone to do something that the person
could see would yield social betterment (the recognition of social
betterment, Mahbub thought, was an adequate reason in itself), as if an
indirect justification were needed to show that the change would benefit
each agent personally. I do not have the time to pursue the richness of this
line of reasoning, but I will quickly make two points of clarification that
might be helpful here.
First, the understanding of obligations related to the human rights
approach have always had a strong element of this kind of social
reasoning, linked with the responsibility of effective power. For example,
both Tom Paine’s and Mary Wollstonecraft’s writings on what
Wollstonecraft called ‘vindication’ of the rights of women and men drew
a great deal on this type of motivation derived from reasoning from the
obligation of effective power.4
Second, capability is a kind of power, and it would be a mistake to see
capability only as a concept of human advantage, not also as a central
concept in human obligation. It should be noticed, incidentally, that this
consideration yields a huge contrast between happiness and capability as
basic informational ingredients in a theory of justice, since happiness does
not generate obligation in the way that capability inescapably must do, if
the responsibility of effective power is taken seriously.5

5.
I turn now to the third feature, namely the focus on comparative issues in
the assessment of justice. The comparative question concentrates on how
to make society more just, rather than speculating about the nature and
the demands of ‘the perfectly just society.’ The former (i.e. the discipline
of comparative assessments) was certainly Mahbub ul Haq’s focus. It is,
however, the latter (the identification of the perfectly just society) that has
been the main area of concentration of contemporary political philosophy
— a concentration that gives the theory of justice a ‘transcendental’ form.6
Mahbub’s deliberations were all aimed at exploring ways and means of
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making the world less unjust than it is — not at chasing some idea of a
perfectly just society.
In contrast, the transcendental issue is seen as the predominant
question in the theory of justice in contemporary political philosophy — in
fact it is sometimes the only question that is patiently explored in that
literature. The shared starting point in most of the modern theories of
justice is the identification of the demands of a ‘just’ society, and the
nature of ‘just institutions.’ The exercise begins by asking ‘what is a just
society?’ and, related to that, ‘what are the principles on the basis of which
just institutions could be set up for the society?’ Indeed, in most theories
of justice in contemporary political philosophy, those questions about
impeccably just societies and exactly just institutions occupy the centre
stage.
The transcendental approach to justice is not new (it can be traced at
least to the writings of Thomas Hobbes in the seventeenth century), but
recent contributions have done much to consolidate the reliance on this
approach. In his investigation of ‘justice as fairness,’ Rawls explores in
depth the nature of an entirely just society seen in the perspective of
fairness. Even those political philosophers who have taken a different
approach to the demands of justice from Rawls, for example Robert Nozick
(who differs quite radically on the primacy of entitlements and historically
founded rights) or Thomas Nagel (whose differences from Rawls are more
subtle), tend to accept the transcendental approach to be the only one that
can take us towards an understanding of the nature of justice.
However, the transcendental identification does not tell us much
about how to compare, in terms of their justice-related characteristics, two
arrangements neither of which actually satisfy the social contract of
complete justice. How might we compare, say, (1) the USA today as it is,
with its totality of problems, including the absence of medical insurance
for more than 40 million people, and (2) an alternative where that lack of
guaranteed medical insurance had been fully remedied, although all the
other problems existing in the USA remained? Neither of these alternatives
can, of course, be seen as a perfectly just society, but we can hardly take
them to be much the same in terms of justice (and see them only as
belonging to the large Rawlsian box called ‘not just’). Nor, to take another
example, would it have given Adam Smith or Marquis de Condorcet or
Mary Wollstonecraft any well-theorized support for their efforts to abolish
slavery in their eighteenth-century world without taking on, at the same
time, all the other justice-related infelicities that ailed the world they tried
to reform.
Transcendence is a lumped-together view of the world, with all
possible social arrangements seen either as ‘unjust’ or as ‘just,’ without
further distinctions. In contrast, the human development approach, and
the social choice theory on which the human development reasoning
draws explicitly or by implication, are firmly tied to asking ‘comparative’
questions: how can we advance justice or reduce injustice in the world?
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Is this contrast significant? I would argue that it certainly is. It may well
turn out that in a comparative perspective the introduction of social
policies that eliminate widespread hunger, or remove rampant illiteracy,
can be shown to yield an advancement of justice. But the implementation
of such policies would still leave the societies involved far away from the
transcendental requirements of a fully just society, which would have a
great many other demands as well.
Can it be argued that the practical concentration on comparative
questions, well exemplified by Mahbub’s predilection in that direction, is
not at all enough for the philosophy of justice, since underlying the
comparative questions there must be — at some deeper level — some
transcendental understanding of the demands of a perfectly just society?
Can it be said that knowing about the nature of a fully just society is
necessary for a well-grounded practical reasoning on justice? I think that
thesis would be very hard to defend.
Indeed, in the discipline of comparative judgments in any field,
relative assessment of two alternatives tends in general to be a matter
between them, without there being the necessity to beseech the help of a
third — ‘irrelevant’ — alternative. Indeed, it is not at all obvious why in
making the judgment that some social arrangement x is better than an
alternative arrangement y, we have to invoke the identification that some
quite different alternative z is the ‘best’ or exactly the ‘right’ social
arrangement. In arguing for a Picasso over a Dali we do not need to get
steamed up about identifying the perfect picture in the world, which
would beat the Picassos and the Dalis and all other paintings: we are
simply judging a Picasso against a Dali.
It might, however, be thought that the analogy with aesthetics is
problematic since a person might not even have any idea of a perfect
picture, in a way that the idea of a perfectly just society has appeared to be
identifiable, in transcendental theories of justice. I will presently argue that
the existence of transcendence is actually not guaranteed even in the field
of justice, but let me for the moment proceed on the generous
presumption that such an identification can be made. But the possibility
of having an identifiably inviolate, or best, alternative does not indicate
that it is necessary (or indeed useful) to refer to it in judging the relative
merits of two non-supreme alternatives. For example, we may indeed be
willing to accept, with great certainty, that Everest is the tallest mountain
in the world, completely unbeatable in terms of stature by any other peak,
but that understanding is neither needed, nor particularly helpful, in
comparing the peak heights of, say, Kilimanjaro and Mount McKinley.
There would be something very deeply odd in a general belief that a
comparison of any two alternatives cannot be sensibly made without a
prior identification of a supreme alternative.
Let me now propose two other — perhaps milder — putative
defences of the relevance of transcendental identification. First, while
transcendental identification may not be necessary for answering
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comparative questions, would it be sufficient, or at least be helpful, in

addressing those questions? In particular, can a clear answer to the
transcendental search take us indirectly to comparative assessments of
justice as well (as a kind of ‘by-product’), in particular through
comparisons of ‘distances’ from transcendence at which any particular
set of societal arrangements stands?
This procedure, I would argue, does not — indeed cannot — work.
The difficulty lies in the fact that there are different features involved in
identifying distance, related, among other distinctions, to (1) different
fields of departure, (2) varying dimensionalities of transgressions, and (3)
diverse ways of weighing separate infractions. The identification of
transcendence does not yield any means of addressing these problems
to arrive at a relational ranking of departures from transcendence.
For example, in the context of the Rawlsian analysis of the just society,
departures may occur in many different spaces. They can include the
breaching of liberty, which, furthermore, can involve diverse violations of
distinctive liberties (many of which figure in Rawls’s capacious coverage of
liberty and its priority under his first principle of justice). There can also be
violations — again in possibly disparate forms — of the demands of equity
in the distribution of primary goods or whatever other information we
decide to rely on for judging individual advantage (there can be many
different departures from the demands of Difference Principle, which
forms a part of Rawls’s second principle).
The absence of comparative implications of transcendental identifica-
tion is not, of course, an embarrassment for a transcendental theory of
justice, seen as a free-standing achievement. The relational silence is not,
in any sense, an internal difficulty of a transcendental theory of justice.
Indeed, some pure transcendentalists would be utterly opposed even to
flirting with gradings and comparative assessments, and may quite
plausibly shun relational conclusions altogether. They may point in
particular to their understanding that a ‘right’ social arrangement must
not, in any way, be understood as a ‘best’ social arrangement, which could
open the door to what is sometimes seen as the intellectually mushy world
of graded evaluations in the form of ‘better’ or ‘worse’ (linked with the
relationally superlative ‘best’). The absoluteness of the transcendental
‘right’ — against the relativities of the ‘better’ and the ‘best’ — may well
have a powerfully reasoned standing of its own. But it does not, of course,
help at all in comparative assessments of justice.
The other supplementary question is this: would a sequence of
pairwise comparisons — of being better or more just — invariably lead us
to the very best or the perfectly just society? That presumption has some
appeal, since the superlative might indeed appear to be the natural end
point of a robust comparative. But this conclusion would, in general, be a
non-sequitur. In fact, it is only with a ‘well-ordered’ ranking (e.g. a
complete and transitive ordering over a finite set) that we can be sure that
the set of pairwise comparisons must also identify a ‘best’ alternative.
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I have discussed elsewhere why a systematic and disciplined theory of

normative evaluation need not take a ‘totalist’ form; that is, one that insists
on a complete ranking.7 Incompleteness may be of the lasting kind for
several different reasons, including unbridgeable gaps in information and
judgmental unresolvability involving disparate considerations that cannot
be entirely eliminated, even with full information.
And yet the incompleteness of rankings would not prevent making
comparative judgments of justice in a great many cases, where there might
be fair agreement on particular pairwise rankings, about how to enhance
justice and reduce injustice. A partial ordering can be very useful without
being able to lead to any transcendental identification of a fully just
society. The approach of the human development is a special application
of this general strategy of making do with what can be very widely
accepted, without expecting that this strategy will solve every decisional
problem we face.

6.
The last of the four features that were identified concerns the globally
unrestricted coverage of the human development approach. The under-
lying concept of justice in the human development approach does not
recognize any national boundaries about whom to include and whom not.
How does this compare with the mainstream political philosophy of
justice today? There is a remarkable contrast here since the basic focus of
the ruling theories of justice are effectively national, or are confined to a
polity (or what Rawls calls a ‘people’). The approach of the social contract
requires a strong institutional base, and, in the absence of a state running
all that, we cannot proceed far on this track, as Thomas Hobbes had noted
more than 300 years ago. In fact, it is the combination of the institutional
view and the transcendental understanding of justice that makes
considerations of global justice impossible to entertain within the
boundaries of mainstream theories of justice today.
The point is made with characteristic clarity by Thomas Nagel (in an
article called ‘The Problem of Global Justice’:8 ‘‘It seems to me very
difficult to resist Hobbes’s claim about the relation between justice and
sovereignty,’’ and ‘‘if Hobbes is right, the idea of global justice without a
world government is a chimera.’’ In the global context, Nagel concen-
trates, therefore, on clarifying other demands, distinguishable from the
demands of justice, such as ‘minimal humanitarian morality’ (which
‘governs our relations to all other persons’).
In the Rawlsian approach too, the application of a theory of justice
requires an extensive cluster of institutions that determines the basic
structure of a fully just society. Not surprisingly, Rawls actually abandons
his own principles of justice when it comes to the assessment of how
to go about thinking about global justice. In a later contribution, The Law
of Peoples, Rawls invokes a kind of ‘supplement’ to his national
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(or, within-one-country) pursuit of the demands of what he calls ‘‘justice

as fairness.’’ But this supplementation comes in a very emaciated form,
through a kind of negotiation between the representatives of different
countries on some very elementary matters. In fact, Rawls does not try
at all to derive ‘principles of justice’ that might emanate from these
negotiations, and concentrates instead on certain general principles of
humanitarian behaviour.
This is something of a normative collapse here. When people across
the world agitate to get more global justice — and I emphasize here the
comparative word ‘more’ — they are not clamouring for some kind of
‘minimal humanitarianism.’ Nor are they — no matter how deluded they
might be in other ways — agitating for a perfectly just world society. They
would tend to find their voice better reflected in a poem of Seamus
Heaney:
History says, don’t hope
On this side of the grave,
But then, once in a life-time
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme.
Hugely upbeat as this longing about justice rising up is, transcendental
justice, so dominant in contemporary political philosophy, is not a part of
that rhyme.

Notes
1 Text of the first Mahbub ul Haq Memorial Lecture of the Human Development and
Capability Association, given at the New School in New York on 19 September 2007.
2 Underlying the approach is the major issue of what Hilary Putnam calls the denial of a
‘‘fact\value dichotomy.’’ I shall not have the chance to address that methodological
question here (although I do discuss it in the book; Sen, A. (forthcoming) The Idea of
Justice, Penguin, London and Harvard University Press, Cambridge, Mass.); but see
Hilary Putnam’s contribution to this issue. See also Putnam, H. (2002) The Collapse of
the Fact/Value Dichotomy and Other Essays, Harvard University Press, Cambridge,
Mass.; and Vivian Walsh (2004) ‘Sen after Putnam’, Review of Political Economy, 16,
pp. 315–394.
3 This relates to the central focus of the work of the Human Development and Capability
Association. Indeed, I would imagine they are getting much attention in the wonderful
conference of the Human Development and Capability Association, imaginatively
arranged by Sakiko Fukuda Parr, working with Martha Nussbaum, President of the
Human Development and Capability Association, and others (including the dynamic
Sabina Alkire).
4 I have discussed this issue in my essay ‘Elements of a theory of human rights’,
Philosophy and Public Affairs, 32 (2004), pp. 315–356.
5 I tried to go into these issues in my 1984 Dewey Lectures at the Columbia University,
which were published in the form of three papers, under the general title of ‘Well-
being, agency and freedom’, Journal of Philosophy, 82 (1985), pp. 169–221. The
connections are more fully explored in The Idea of Justice.

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6 On this see my article ‘What do we want from a theory of justice?’, The Journal of
Philosophy, 103 (2006), pp. 215–238.
7 On this see my essays ‘Maximization and the act of choice’, Econometrica, 65 (1997),
pp. 745–779; and ‘Consequential evaluation and practical reason’, Journal of
Philosophy, 97 (2000), pp. 477–502.
8 Nagel, T. (2005) ‘The problem of global justice’, Philosophy and Public Affairs, 33,
p. 115.

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 The Concept of Nyaya (Justice) in Indian Philosophical Tradition and
Contemporary Theories (John Rawls & Amartya Sen)

Dr Babita Singh Parasain

Author/Independent Researcher,
Constitutional Law and Legislative Studies

This chapter discusses the concept of Nyaya in Indian philosophical tradition and tries
to answer the question as to how the ancient idea of Nyaya can inform and enrich
contemporary justice theories like those of Rawls and Sen. It enumerates John Rawls’
theory of Justice, focusing on distributive justice, social contract, and the original
position, contrasts it with Amartya Sen’s Capability Approach, emphasising individual
freedoms, capabilities, and well-being, encompassing the broader perceptions of the
ancient Indian philosophical thoughts.

Introduction

The concept of justice exists since the inception of human society. It is more intrinsic to a
society's orderly and moral living and deeply ingrained in the roots of human culture. In other
words, a society finds its peaceful co-existence with the practice of justice as its primary idea.
Justice is the “correct application of a law, as opposed to arbitrariness” (Leslie & Paul). Justice
means “appropriate and effective enforcement of law”. Etymologically, the word ‘Justice’ is
derived from the Latin term ‘Justitia’ which means and signifies ‘righteousness’ or ‘equity’. It is
also understood from the French word ‘Jostise’ which means ‘equity’ or ‘fairness’, ‘uprightness’,
‘vindication of right’ and ‘administration of law’. In political and legal philosophy, justice is
understood as “morally justifiable distribution of rewards and punishment” (Heywood, 114). It is
an equitable distribution of freedom, rights, wealth, and leisure, and so on, though the grounds of
just distribution of resources may differ.

In classical Indian philosophy, justice, social, political, or individual, involves the promotion
of the welfare or good of the people. It involves rights, system structures, harmony, and duties. In a
way, justice revolves around the concept of propriety and welfare. Historically, justice was seen as
an ethical and moral virtue as well as an important and desirable characteristic that a social and
political order requires which is also essential for a universal order. In the western thought,
Cephalus, a character in Plato’s Republic, presents a basic definition of justice and says “justice
consists in speaking the truth and paying one's debt.” In this traditional view, upholding
truthfulness and fulfilling obligations are key aspects of being just. For Plato, justice in the
individual soul consists of the harmonious operation of the major elements out of which it is
constituted: reason, spirit, and appetite; and justice in the city-state consists of harmonious
operation of the following elements: rulers, guardians (or soldiers), and producers e.g., farmers and
craftsmen (Britannica). Aristotle conceived of justice as an individual virtue as well as a
characteristic of an ideal (or well-functioning) city-state (Britannica). For Hume, justice was to be
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understood as adherence to a set of rules that assign physical objects to individuals (such as being
the first possessor of such an object) (Hume, 484). Justice or Nyaya in Indian tradition is intricately
related to the worldview. To Bentham, ‘justice’, in the only sense in which it (utilitarianism) has a
meaning, is an imaginary personage, feigned for the convenience of discourse, whose dictates are
the dictates of utility, applied to certain particular cases’ (Bentham, 125-126).

In the 17th and 18th centuries, the English philosophers Thomas Hobbes and John Locke and
the French philosopher Jean-Jacques Rousseau developed influential conceptions of justice based
on the notion of a social contract. Individuals born into an anarchic “state of nature,” formed a
society employing a contract or agreement that defined a set of rights and duties of individuals and
a set of powers to be exercised by a government. Social contract theories thus attempt to legitimise
and delimit political authority on the grounds of individual self-interest and rational consent.
Conceptions of justice based on social-contract theory were significantly different from earlier
understandings, because they viewed justice as a human creation or social construct rather than as
an ideal rooted in objective features of human nature and society (Britannica, “Social Justice”).

However, the concept of Justice in Indian philosophy embarks upon a deep and inherent
connection with the concept of Dharma, or righteousness for India being knowledge based society
since inception. The Dharmshastra, endorsed and attributed to Manu, the son of the creator god,
and the first human, a text commonly called Manusmriti or ‘the Code of Manu’. This Smriti is the
most celebrated and best-known legal text of ancient India. The Indian philosophical tradition may
said to be on a different platform from other philosophies as it is not limited to legalistic
definitions and it is not restricted to only the administration or governance of law as generally
known, but also embodies the broader ethical, moral as also the spiritual responsibilities of the
rulers as also the individuals. It has been stated as essential for maintaining cosmic law as well as
social order.

In the contemporary times, justice can mean both legal justice and distributive justice. Legal
justice is concerned with how law provides logic for punishments and rewards, in other words,
distributes penalties for wrongdoing, or allocates compensation for a legally enforceable act
causing injury or damage. Justice in this sense involves the creation and enforcement of a set of
rules that should have a strong ethical and moral basis. The legal justice realm provides for the
procedure adopted for imparting justice and the concrete form of justice, which is concerned with
the rules themselves and whether they are ‘just’ or ‘unjust’. As the laws in present society are a
way adopted for an orderly behaviour of the society so they are recognised by the People as
binding, for an inherent understanding of such law being a “justified” law.

Distributive justice is concerned with the equitable distribution of wealth and the process
adopted in such distribution. This also reflects upon the ultimate results achieved in such
distribution. The preamble to the Indian Constitution that informs about the main objective of the
Constitution, promises to secure to all its citizens social, economic and political justice. It includes
- Peoples’ or Societal Justice, where we ensure one’s right to life and equality within the
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framework of Dharma or Righteousness; Economic Justice ensuring similar advantage distribution
of resources for sub serving the ‘common interest’, fair commerce and trade, to earn livelihoods
and sustainable development for future generations; Political Justice meaning rule of law, Citizens’
rights and duties, good governance and role of the state in ensuring justice; In the neo forms of
justice, one’s right to privacy, environmental justice from both the individual’s as well as
governance point of view. These ideals may not themselves be explicit in the preamble itself, but
the enacting provisions of the Constitution of India, particularly Fundamental Rights in Part-III,
Directives and Duties and Special Provisions Relating to Certain Classes in part XVI and their
judicial interpretations over the years have made these ideals the very soul of the Constitutionalism
that we practice. The very sequence of these values in the Preamble establishes primacy of justice
over freedom and equality (Shukla, 5).

We may, thus define Justice as

Justice means being fair, impartial, just and equitable, reasonable and honest in deciding
matter of a context in question. It can also refer to use of power to establish what is right.

Justice in Indian Philosophical Tradition

Justice or Nyaya in Indian tradition is intricately related to the worldview. The concept of
Justice in Indian philosophy has an intense connection with the idea of Dharma, or righteousness.
It has been stated as necessary for maintaining cosmic and social order. Thus, the Indian
philosophical tradition is on a different pedestal from other philosophies as it is not limited to
legalistic definitions often found in other philosophies and it is not restricted to only the
administration of law as generally known at the global level, but also embodies the broader ethical
and spiritual responsibilities of the rulers as well as the individuals.

The philosophy of Justice in Indian thought has some special features, which make it stand
on a different pedestal than the other philosophies. The ancient Indian approaches to justice
emphasise the following:

a. It is intricately connected with the universal or cosmic physical order

b. It emphasises the importance of the principles of duty
c. Upholding righteousness is the focus of Indian philosophical tradition
d. Imparting justice with reasoning, integrity and honesty.

The earliest literature relating to the Vedic Age speaks of Ṛta, which is a cosmological principle
equated with justice, which not only governed nature but also the human conduct. Ṛta is the
inviolable, eternal law which makes for order, regularity and harmony in the universe, the law
which even the Gods obey and by which Varuna (the god of cosmic law and the sky and guardian
of the moral law) metes out justice to man (Saksena, 286). Ṛta combines positive law, natural law
and moral principles. This moral conception of nature generates in the Indian mind a deep

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confidence in cosmic justice (Saksena, 268). The ideals like satyameva jayate or Lokah Samastah
Sukhino Bhavantu i.e., the righteous side or truth alone prevails and let the entire world be happy.
(The Mangala mantra is a prayer for peace found in the ancient scriptures - the "Rig Veda"). There
is a unity of moral outlook amongst Indian thinkers despite the diversity of metaphysical theories.
There is a common belief that human life is a rare opportunity, obtained after a long series of
incarcerations, it is momentary. So, it is foolish not to utilise this life for improving the future
possibilities.

To follow Ṛta was to act following justice or the natural law. The concept of Ṛta in the Rig
Veda was gradually transformed into the concept of Dharma in later literatures. It was only after
the coming in of the Upanishads that the concept of “Karma” that justice became the consequence
of an action. This meant that whatever actions one performs, s/he would reap the outcome of those
actions only in this birth or the next. However, during the later centuries justice came to be defined
as Dharma and played a significant role in the social and political order. Due to the prevailing
form of Kingship, it became the duty of the King to do justice and thus in turn do Dharma to his
subjects. This also became a levelling tool to protect the subjects from the tyranny of the rulers,
which existed before the coming in of this idea that justice and dharma could be equated.

These age-old concepts and principles find their appropriateness and relevance in the present
social system as well. Ancient India was not only rich in knowledge of mathematics, astronomy,
literature, medicine, etc, but it witnessed a developed and strengthened administrative mechanism
and judicial system. The evidence for this is the huge number of legal literature written in ancient
India. The ancient sources of Hindu law are the Shrutis, Smritis, Digests, Commentaries, and the
popular folklores, customs, and practices followed since super ancient times.
While identifying Daston Lorraine’s views with the ancient Indian thought, he had said:
‘Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy,
generosity, or compassion. Justice has traditionally been associated with concepts of fate,
reincarnation or Divine Providence, i.e. with a life under the cosmic plan. The association of
justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern
innovation in western societies’ (Loraine, 7).
Although the concept of justice as a good deed and part of the law of nature is mainly
metaphysical, but its practical or enforcement aspects have also found a place in several
approaches. We can see examples of such application in the traditional Indian opinions of justice,
in which it is mainly through prescriptions or examples that the notion is understood, being true to
the method of establishing a theory or Siddhanta by considering dristanta, a method proposed by
the logical schools.

The Manusmriti is one of the most important scriptures on Justice and Dharma (law and
conduct) in Indian tradition. The Dharmshastra, ascribed eponymously to Manu, the son of the
god of creation (The Creator), and the first of the humans, a text created by him, commonly
called as Manusmriti, is the most recognised and well known law text of ancient India. Manu was
viewed as the absolute and supreme authority in law related matters, and views contradicting Manu
were taken to be invalid. It particularly deals with the role and responsibilities of kings in
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administering justice, ethical and moral conduct, pecuniary matters like restitution and
compensation, and other aspects of justice. According to Manusmriti, justice is a concept that
involves the destruction of evil, the protection of the weak, and the development of knowledge and
welfare. Manu believed that justice was truth and that the law was a means to achieve justice.
More stress was placed on the concepts of justice and equity by Manu, who also felt that whoever
breaks justice, is always disgusting (Derrett, 45).
The idea of social justice as it exists today is included in Manu’s conception of justice. He
referred to it as the “social purpose of justice”, where the king had to stand up for the rights of
people who couldn’t stand up for themselves (Bhattacharya). The Manusmriti outlines a detailed
code of conduct and justice was meant to govern various aspects of life, including social order,
duties, and punishment (Kaul, 83). The text details the four varnas and their functions within
Hindu society, emphasizes the importance of a good council for governance, and addresses moral
and ethical guidelines. However, as a natural corollary and being influenced by the then scenario,
the Manusmriti speaks of certain aspects that appear drifted away from the current social set up
and modern thought but that should not hold importance and needs to be diluted when compared
with the bigger contribution as well as larger framework of law and justice as prepared and
provided by Manu in such an ancient period of time in humanity. No wonder the Code of Manu
received high praises from Friedrich Nietzsche in several of his works. In one place he says that “it
has an affirmation of life, a triumphing agreeable sensation in life and that to draw up a law book
such as Manu means to permit oneself to get the upper hand, to become perfection, to be ambitious
of the highest art of living.”

Often referred to as Nyaya in Sanskrit, justice in Indian philosophy primarily relates to

ensuring fairness and equality amongst people. The main aspects of justice, as explained in the
ancient texts, include: Fairness and Equity: Ensuring that actions and decisions are fair and
equitable, providing everyone with what they deserve. Nyaya also extensively studies the nature of
reasoning in the attempt to map pathways, which lead to veridical inferential cognition. Nyaya’s
methods of analysis and argument resolution influenced much of classical Indian literary criticism,
philosophical debate, and jurisprudence (Dasti). Mr. Justice S. S. Dhavan, in his The Indian
Judicial System: A Historical Survey, says,

We must go to the original texts to get a true and correct picture of the legal system of
ancient India. The reader will discover from them that Indian jurisprudence was found on
the rule of law; that the King himself was subject to the law; that arbitrary power was
unknown to Indian political theory and jurisprudence and the king’s right to govern was
subject to the fulfilment of duties the breach of which resulted in forfeiture of kingship; that
the judges were independent and subject only to the law; that ancient India had the highest
standard of any nation of antiquity as regards the ability, learning, integrity, impartiality,
and independence of the judiciary, and these standards have not been surpassed till today;
that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief
Justice (Praadvivaka) at the top, each higher Court being invested with the power to
review the decision of the Courts below; that disputes were decided essentially in
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 accordance with the same principles of natural justice which govern the judicial process in
the modern State today: that the rules of procedure and evidence were similar to those
followed today; that supernatural modes of proof like the ordeal were discourage; that in
criminal trials the accused could not be punished unless his guilt was proved according to
law; that in civil cases the trial consisted of four stages like any modern trial – plaint,
reply, hearing and decree; that such doctrines as res judicata (prang nyaya) were familiar
to Indian jurisprudence; that all trials, civil or criminal, were heard by a bench of several
judges and rarely by a judge sitting singly ; that the decrees of all courts except the King
were subject to appeal or review according to fixed principles ; that the fundamental duty
of the Court was to do justice “without favour or fear”(Dhavan).

The Indian jurists like Manu, Yajnavalkya, Katyayana, Brihaspati and others, and in later
times commentators like Vachaspati Misra and others, described in detail the judicial system and
legal procedure which prevailed in India from ancient times till the close of the Middle Ages.
Amongst many scriptures, the Rigveda, the epics Mahabharata and Ramayana, the sacred Srimad
Bhagavatam, the philosophically oriented Upanishads, besides Manusmriti and Kautilya's
Arthashastra deal with morality, ethics of conduct and administration, duties, rights, laws and
virtues, with their reflective insights, have played a significant role in determining the concept of
justice in Indian philosophy, which is closely associated with the fulfilment of one's duties
(Dharma). The cosmos is instinct with an inherent structure and functional pattern in which men,
at their best willingly participate. Justice, then in the Indian context, is a human expression of a
wider universal principle of nature, and if men were entirely true to nature, their actions would be
spontaneously just (Underwood). It is pertinent to describe these scriptures in establishing the rich
Indian Philosophical tradition; the perennial attitude of Indian culture has been that Justice and
harmony among men are microcosmic reflections of the natural order and harmony of the
macrocosmic universe.

The Vedas are considered as the “first source of dharma” (Jois, 1). Dharma constitutes the
foundations of all affairs in the world. Everything in this world is founded on dharma and it is
therefore, considered ‘supreme’. The commandants of dharma are compared with nature's laws,
which must be adhered to categorically. Vedas, Vedangas, and Upanishads give information about
the Indian judiciary. Vedas are four in number, namely: Rigveda, Yajurveda, Samaveda and
Atharva Veda. And Vedangas namely: Siksha, Chandas, Vyakarana, Nirukta, Jyotishya and Kalpa.
Eighteen Upanishads, supplemented to the respective Vedas and other texts, which together
constitute the Shrutis, are mainly religious books. However, they contain some rudiments of law.
Vedas are the sources of Dharma. It is difficult to trace law from the Vedas, except by following
the indications of positive (Vidhis) or negative (Nishedas) indications. There are several Vidhis
and Nidhis which formed the foundation of the Smriti laws in later periods. Some of such Vidhis
and Nishedas are: tell the truth, never tell untruth, never hurt anyone, follow dharma, treat your
father and mother as god, perform only such acts which are not forbidden, etc. According to the
Hindus, the foundation head of Dharma or law is the Vedas or revelation, but there are no special
chapters in the Vedas treating law.
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 In the Bhagavad-Gita the concepts of Dharma (righteous duty) and justice are deeply
intertwined and central to its teachings. The dialogue between Arjuna and Lord Krishna on the
battlefield of Kurukshetra explores the complexities of Dharma, especially in the context of justice
and moral duty. Some of the relevant verses in the original focus on the significance of people
following their Dharma, the importance of justice in maintaining social order, as well as the
nature’s laws of divine intervention re-establish Dharma when it declines.
The Upanishads say, verily that which is justice is truth. The Upanishads are the ancient
Indian scriptures that came into existence after the Vedic Period. They present the deep
philosophical thought of Hinduism. They deal with the nature of reality, the self of an individual
and the fundamental truth. Through deep debates and teachings, the Upanishads are a gateway to
the concepts of righteousness (Dharma), besides providing deep insights into the philosophical
thoughts about self and creation. These sacred texts go into the concept of Righteousness i.e.,
Dharma as a basic principle of reality and truth, social order and harmony, brotherhood as well as
justice.
The epic Ramayana enshrines the tenets of Dharma (righteousness). Shree Rama, considered
as an avatar of Lord Vishnu, always followed the rules of dharma. His actions were always
accompanied by reason and justification and never transgressed the limits of propriety. Thus,
Rama is considered as Maryadapurushottam in all his deeds and actions. Mahabharata, however,
has more complex situations to deal with and more complex solutions as well. Therefore, it
emphasises the indescribability of Dharma (it says dharma suksmatah or Dharma is subtle). The
tenets of justice and Dharma are intricately interwoven as situations of complex moral dilemmas
arise in the narrative. Mahabharata has a distinct feature as it emphasizes that Dharma does not
have a set definition as it can vary depending on the diverse context, role, and purposes in this
world that is inherently full of contradictions and ambiguities. Mahabharata visualises that in a
complex world, justice itself may become multifaceted and in need of difficult choices beyond
following tradition or existing moral percept. Therefore, Mahabharata in its story-telling mode tells
us what should not be done by exposing the tragic flaws of its heroes when they meet their nemesis
in the battlefield, duty-centric, utilitarian as well as a spiritual theory of action. Thus law, morality,
and justice in the Indian tradition need to be explored integrally, holistically as also spiritually.
Kautilya’s Arthashastra, one of the most detailed and reliable texts on Indian political
philosophy and statecraft, carries forward the Dharmic understanding of justice enumerated in
Shrutis and Smritis and covers various aspects of governance, economics, military strategy, and
diplomacy from a more pragmatic perspective. He is of the strong view that it is an important duty
of rulers to maintain order in the kingdom. The ultimate source of all law is dharma which is one’s
duty or righteousness and for the prosperity of a state, the state must be devoid of internal conflict
and the King should be in control of the state. He prescribed just and realistic rule of law.
Attaching great importance to dandaniti, which includes, protecting property, acquiring property,
augmenting them and distributing them, Kautilya considered justice as an important constituent of
state’s power or sovereignty, which needs to be preserved by the State. He also held a view similar
to the one in Mahabharata if the ruler fails in his duties. Mahabharata says, “A king who after

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having sworn to protect his subjects, fails to protect them, should be executed by his enraged
people.” (Shanti Parva, Chapter 67, Verse 34)
The above verses of Mahabharata express the strength of character with which virtues were
evolved by the Indian society. It reflects the seriousness of a king's responsibility towards his
subjects in ancient Indian thought, where failing to fulfill this duty (Dharma) is seen as a serious
betrayal, meriting severe punishment.
Justice in Indian philosophy extends beyond mere legal frameworks, deeply interwoven with
the concept of Dharma, is a phenomenon that is not limited to the making of laws, it enshrines a
way of life, a societal conduct emphasising righteousness and morality. Integrating justice with
moral, ethical and spiritual dimensions, the ancient texts, including the Mahabharata, Ramayana,
and Manusmriti in the Indian tradition emphasize the duties and responsibilities of the governors
and the governed. Thus, Indian philosophy presents a holistic view where justice and Dharma are
amalgamated to express societal harmony and ethical integrity.

Justice as Fairness (Rawls)

John Rawls, widely considered the most important political philosopher of the 20th century,
proposed a general concept of justice. In his A Theory of Justice, Rawls defends a conception of
“justice as fairness.” He holds that an adequate account of justice cannot be derived
from utilitarianism1, because that doctrine is consistent with intuitively undesirable forms of
government in which the greater happiness of a majority is achieved by neglecting the rights and
interests of a minority. Reviving the notion of a social contract, Rawls argues that justice consists
of the basic principles of government that free and rational individuals would agree to in
a hypothetical situation of perfect equality. To ensure that the principles chosen are fair, Rawls
imagines a group of individuals who have been made ignorant of the social, economic, and
historical circumstances from which they come, as well as their basic values and goals, including
their conception of what constitutes a “good life.” Situated behind this “veil of ignorance,” they
could not be influenced by self-interested desires to benefit some social groups (i.e., the groups
they belong to) at the expense of others. Thus they would not know any facts about their race, sex,
age, religion, social or economic class, wealth, income, intelligence, abilities, talents, and so on
(Duignan). In other words,

“All social primary goods-liberty and opportunity, income and wealth, and the basis of self-
respect are to be distributed equally, unless an unequal distribution of any or all of these
goods is to the advantage of the least favoured.” (Krishna Iyer)

1
According to Bentham, justice is a social construct created to maximize enjoyment for as many individuals as
possible. He held that the utility principle, which states that deeds should be judged according to their capacity to
increase happiness and lessen suffering, should serve as the foundation for justice. Utilitarianism has the considerable
attraction of replacing moral intuition with the congenitally down-to-earth idea of human happiness as a measure of
justice.

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 Justice as fairness is Rawls’s theory of justice for a liberal society. As a member of the
family of liberal political conceptions of justice, it provides a framework for the legitimate use of
political power. Yet legitimacy is only the minimal standard of moral acceptability; a political
order can be legitimate without being just. Justice sets the maximal standard: the arrangement of
social institutions that is morally best (Wenar). As Rawls says, its “main idea is that society is
rightly ordered, and therefore just, when its major institutions are arranged so as to achieve the
greatest net balance of satisfaction summed over all the individuals belonging to it” (Rawls, 20).
In the “original position,” as Rawls characterizes, any group of individuals would be led by reason
and self-interest to agree to the principles. Rawls constructs justice as fairness around specific
interpretations of the ideas that citizens are free and equal, and that society should be fair. Rawls
also argues that justice as fairness is superior to the dominant tradition in modern political thought:
utilitarianism.

Justice as fairness aims to describe a just arrangement of the major political and social
institutions of a liberal society: the political constitution, the legal system, the economy, the
family, and so on. Rawls calls the arrangement of these institutions a society’s basic structure. The
basic structure is the location of justice because these institutions distribute the main benefits and
burdens of social life: who will receive social recognition, who will have which basic rights, who
will have opportunities to get what kind of work, what the distribution of income and wealth will
be, and so on. The form of a society’s basic structure will have a great impact on the lives of
citizens.
The basic structure will influence not only citizens’ life prospects, but more deeply their
goals, their attitudes, their relationships, and their characters. Institutions that will have such
pervasive influence on people’s lives require justification. In setting out justice as fairness, Rawls
assumes that the liberal society in question is marked by reasonable pluralism as described above,
and also that it is under reasonably favourable conditions: that there are enough resources for it to
be possible for everyone’s basic needs to be met (Wenar).

The Two Fundamental Principles of Justice as Fairness

These guiding ideas of justice as fairness are given institutional form by its two principles of
justice (Rawls, 54):
1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties,
which scheme is compatible with the same scheme of liberties for all;
2. Social and economic inequalities are to satisfy two conditions:

a. They are associated to offices and positions open to all under conditions of fair equality of
opportunity;
b. They are to be utilised for the maximum benefit of the least-advantaged members of
society (the difference principle).

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 The first principle confirms that all citizens shall have an unabated claim to all basic rights
and liberties, i.e., freedom of speech and expression, freedom of practising faith and freedom of
association, right to life and liberty, rights to vote or to hold any public office, and also to be
equally subjected to the rule of law, and so on. For example, the first principle would discard a
policy that would give exemptions to university professors on the premise that highly literate
citizens will bring about economic prosperity. Such a concept will be a violation of fundamental
liberties, and if it is enforced, then equality matters even if the pace of growth is slow.
The second distinctive feature of Rawls’s first principle is that it requires that citizens should
be not only formally but also substantively equal. That is, citizens who are similarly endowed and
motivated should have similar opportunities to hold office, to influence elections, and so on
regardless of how rich or poor they are. Rawls’s second principle of justice has two parts. The first
part, fair equality of opportunity, requires that citizens with the same talents and willingness to use
them have the same educational and economic opportunities. “In all parts of society there are to be
roughly the same prospects of culture and achievement for those similarly motivated and
endowed” (Rawls, 63). The second part of the second principle warrants any economic inequalities
are to the greatest advantage of those who are the disadvantaged or the least advantaged section of
the society. Rawls says, “Men agree to share one another’s fate.”
In terms of his Conception of Citizens, Rawlsian citizens are not only free and equal, they are
also reasonable and rational. Rawls calls this reasonableness the capacity for a sense of justice.
Citizens are also rational: they can pursue and revise their view of what is valuable in human life.
Rawls calls this the capacity for a conception of the good. Together these capacities are called
the two moral powers (Wenar).
Rawls derives his account of primary goods from the conception of the citizen as free and
equal, reasonable and rational. Primary goods are essential for developing and exercising the two
moral powers, and are useful for pursuing a wide range of specific conceptions of the good life.
Primary goods are these: The basic rights and liberties, Freedom of movement, and free choice
among a wide range of occupations, The powers of offices and positions of responsibility, Income
and wealth, the social bases of self-respect: the recognition by social institutions that gives citizens
a sense of self-worth and the confidence to carry out their plans. All citizens are assumed to have
fundamental interests in getting more of these primary goods, and political institutions are to
evaluate how well citizens are doing (Wenar).
In what he calls a well-ordered society all citizens accept the principles of justice and know
that their fellow citizens also do so, and all citizens recognize that the basic structure is just. The
consent of and amongst citizens is something that identifies Rawls’s justice as fairness with the
social contract tradition of Locke, Rousseau, and Kant.

The Original Position: Veil of Ignorance

The original position is an imaginary situation or a thought experiment. Rawls’s conceptions
of citizens and society are subtle. In the first instance, it offered a new way of understanding the
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issues concerning justification and objectivity in political philosophy. The focus of these
difficulties is to find a specific viewpoint from where one could deliberate upon matters of basic
justice. The original position is important in the second place because of the many interesting
philosophical questions it raises. How could the fact that one would have agreed to certain
principles in a special situation of choice give those principles binding authority over him/her?
Finally, the original position is significant because of its evident traction: it has inspired other
philosophers to take up alternative positions, to rethink it, and to conceptualise afresh the
philosophical problems to which the idea was initially addressed (Hintonpp). In other words, In
John Rawls’s A Theory of Justice treatise, the ‘original position’ presents as a subtle abstraction
from reality which comprise a people who are not aware about themselves, such as their class, age,
religious inclination, gender, or names, are asked to decide principles of justice that could serve
which principles they would select for the basic structure of society, its laws and for imparting
justice, but they must select as if they did not know themselves. Rawls is of the view that the
choices made from behind such an ignorance, would result in equal rights and liberties for all;
equality of jobs and education opportunities; and an assured minimum of means.

The most striking feature of the original position is the veil of ignorance, which prevents
arbitrary facts about citizens from influencing the agreement among their representatives. As we
have seen, Rawls holds that the fact that a citizen is of a certain race, class, and gender is no reason
for social institutions to favour or disfavour them. Each representative in the original position is
therefore deprived of knowledge of the race, class, and gender of the real citizen that they
represent. In fact, the veil of ignorance deprives the parties of all facts about citizens that are
irrelevant to the choice of principles of justice: not only facts about their race, class, and gender but
also facts about their age, natural endowments, and more. Moreover, the veil of ignorance also
screens out specific information about what society is like right now, to get a clearer view of the
permanent features of a just social system (Wenar). The original position is also the bottom line of
meta-moral or meta-ethical theory as thought of by Rawls, i.e., political constructivism. Political
constructivism is Rawls’s account of the objectivity and validity of political judgments.
Rawls' theory of justice has also been criticized for its limited approach in the contexts.
In Anarchy, State, and Utopia (1974), Robert Nozick argues that, while the original position may
be the just starting point, any inequalities derived from that distribution employing free exchange
are equally just, and that any redistributive tax is an infringement on people's liberty. He also
argues that Rawls's application of the maximum rule to the original position is risk aversion taken
to its extreme, and is therefore unsuitable even to those behind the veil of ignorance. In Liberalism
and the Limits of Justice (1982), Michael Sandel has criticized Rawls's notion of a veil of
ignorance, pointing out that it is impossible, for an individual, to completely prescind from beliefs
and convictions (from the Me ultimately), as is required by Rawls’s thought experiment.
The idea of Justice (Amartya Sen)

Amartya Sen offers a significant critique of John Rawls's theory of justice, particularly
focusing on what Sen terms “transcendental institutionalism”. Rawls's theory, according to Sen,

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aims to identify perfectly just institutions. Sen criticizes this "transcendental" approach, arguing
that it's less useful for addressing real-world injustices. Sen advocates for a "comparative"
approach, focusing on comparing different states of affairs and identifying ways to reduce existing
injustices. He believes that we don't need a perfect theory of justice to make meaningful
improvements. Sen argues that Rawls overemphasizes the role of institutions as guarantors of
justice, while neglecting the actual realizations of justice in people's lives. Sen's "capabilities
approach" emphasizes individual capabilities and freedoms, arguing that justice should be assessed
by how well people can live the lives they value. Sen questions the feasibility of achieving a
single, universally agreed-upon conception of justice, as Rawls's theory proposes. He highlights
the plurality of reasonable perspectives and values. He argues that there may be multiple,
conflicting, yet justifiable principles of justice. Sen argues that justice is a multi-dimensional
concept, and that there are multiple views of what is just. He emphasizes that the aim of justice is
to prevent severe injustice, not just achieve a perfectly just society.

Sen places a high value on public reasoning and democratic deliberation in determining what
is just. He believes that justice should emerge from open and inclusive discussions, rather than
being imposed by a theoretical framework. Sen also raises concerns about the Rawlsian concept of
the "veil of ignorance." While acknowledging its value in promoting impartiality, he suggests that
it may not adequately account for the complexities of real-world decision-making. In essence,
Sen's critique encourages a shift from seeking ideal institutions to addressing actual injustices,
emphasizing the importance of individual capabilities and public reasoning.

In this connection, Sen draws from the classical Indian tradition the distinction between niti
and nyaya. According to Sen, both terms stand for justice in classical Sanskrit. However, they refer
to different dimensions of justice. Niti means ‘organizational propriety and behavioural
correctness’, whereas nyaya refers to a ‘comprehensive concept of realized justice ... which is
inescapably linked with the world that emerges, not just the institutions or rules that we happen to
have’ (Sen, 20). One of the reasons a nyaya (outcome of applied law) approach is preferable to a
niti (law as prescribed) approach is that it leaves room to consider consequences. A nyaya
approach also takes into account processes, duties and responsibilities, as is exemplified in
Bhagavad-Gita. This is the reason Sen insists on the concept of ‘comprehensive outcome’ which
includes the processes involved, and which has to be distinguished from just the ‘culmination
outcome’ (Sen, 22).

Sen offered criticisms that have significantly shaped contemporary discussions of justice. Sen
successfully shifted the focus of justice from purely institutional arrangements to the actual
realization of justice in people's lives. His “capabilities approach” has become a vital framework
for assessing well-being and justice, particularly in development economics and social policy. For
Sen, instead of pursuing a perfect theory of justice, pursuing the reduction of manifest injustice is
important. However, Sen at some point seems to be lacking in his realising the fact that institutions
act as a “mechanism” for realising and ensuring the good of each individual and a group of
individuals as a whole. They are designed as well as endeavour to act as a balancing agency to
12

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work for individual and group interests keeping in mind the larger picture of national interest
especially in law making, its implementation and imparting justice. In human societies such
institutions are a need to identify a ‘way’ for building of rights and providing justice. While Sen
criticized Rawls’s emphasis on institutions, it's important to note that institutions remain crucial for
creating and maintaining just societies. The debate continues about the appropriate balance
between institutional design and the realization of capabilities. The degree to which the
"transcendental" side of Rawls' work is unhelpful is still debated. Some scholars argue that ideal
theory still serves an important role in providing a long-term vision and guiding principles for
justice. However, in Sen’s theory, the emphasis on comparative assessments of justice has
provided a practical and flexible approach than the pursuit of a single, ideal theory. In its own way,
Sen’s views will be particularly influential in addressing real-world problems where achieving
perfect justice may be unrealistic.

Conclusion: Contrasts Drawn and Similarities Identified

It is interesting to consider how the modern debates on justice might resonate with ancient
Indian philosophical perspectives. While direct, one-to-one correspondences are difficult to
establish, we can identify some intriguing parallels and points of contrast. The concept of dharma
in Indian philosophy encompasses duty, righteousness, and cosmic order. It’s not simply a set of
rules, but a contextual understanding of one’s obligations. Rawls’ emphasis on just institutions
could be seen as aligning with the idea of establishing a dharmic social order. However, Sen’s
focus on capabilities and real-world outcomes echoes the practical application of dharma in
ensuring well-being. Dharma or righteousness is the duty to do justice for those bestowed upon it
and for those governed by them. It is one’s duty to assert his/her rights, and at the same time to
secure the rights of others. Dharma as a unique conglomeration of deontic morality, rationality,
and compassion, with the concern for consideration of greater social well-being and flourishing
informs the modern theories of justice about the grounded approach to justice both for individuals
and the whole humanity in a much wider perspective. Sen’s “capabilities approach” shares some
common ground with the pursuit of liberation in Indian philosophies. Both emphasize the
importance of individual potential and the removal of obstacles that hinder human flourishing.
Whereas liberation is a very individual pursuit, the capabilities approach is looking at the society's
ability to allow for individual flourishing.

Kautilya’s Arthashastra provides a dharmic but pragmatic approach to governance and social
welfare. It emphasizes the importance of effective institutions and policies for ensuring the well-
being of the state and its citizens. This resonates with both Rawls’ concern for just institutions and
Sen’s focus on practical outcomes. The Arthashastra’s emphasis on realpolitik also provides a
contrasting perspective to Rawls’ ideal theory. As some scholars have noted, the complexities of
justice depicted in the Mahabharata, particularly the dialogue between Krishna and Arjuna in the
Bhagavad Gita, offer a rich source of insights. The conflict between duty and consequences, as
exemplified in Arjuna’s dilemma, mirrors the tension between Rawls’ focus on principles and
Sen’s concern for outcomes.
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 Rawls’ search for universal principles of justice contrasts with the contextual nature of much
of Indian philosophy, which emphasizes the importance of dharma as it applies to specific
individuals and situations. The Indian systems often recognise that justice must be applied
differently, depending on the caste, or station of the individual or a group of individuals. While
Sen concerns with individual well-being, ancient Indian philosophies often place greater emphasis
on the interconnectedness of individuals and the importance of social harmony.

By considering these connections and contrasts, we can gain a deeper understanding of the
Rawls-Sen debate and its relevance to diverse philosophical traditions. Justice is a concept that
civilizations and societies across the world strive for an ethical and equitable existence. In this
context, it would be relevant to quote from Justinian’s 'Corpus Juris Civilis': “Justice is the
constant and perpetual will to render to everyone that to which he is entitled”. So, it is accepted
universally that the foundation of justice is to ensure rights to all individuals and also to make it
accessible to them. Here, it is pertinent to mention the theory of Advaita School in the Indian
Dharmic System, popularised by Adi Shankaracharya, in lines with ancient Upanishadic tradition,
which offers the epitome of idealistic world view and emphasizes the oneness of all existence.
Advaita asserts that the ultimate reality (Brahman) is identical to the individual self (Atman). The
apparent diversity of the world is an illusion (Maya). So despite their uncompromising monism,
Advaitins allow a degree of reality and value and think in terms of identity-in-difference in respect
of all phenomena including social ones. Identity is the ultimate truth but differences are its
appearances, and to be able to realise identity through diversity is a necessary and valuable step
towards the ultimate truth (Datta, 273). This world-view offers a unique perspective on justice,
which prioritizes compassion, non-violence, and the interconnectedness of all beings. Some
scholars argue that an Advaita-inspired approach to justice would emphasize the importance of
individual responsibility for the well-being of the whole. It might also advocate for social
structures that promote equality and minimize suffering, recognizing that harm to any individual
ultimately affects the entire interconnected reality.

The concept of Dharma, as “righteousness” or “duty,” deeply rooted in various schools of

thought, emphasizes ethical conduct, social harmony, and individual responsibility. Dharma is not
merely a set of rules but a dynamic principle that guides human behaviour towards a just and
equitable society. Supreme Court in the Scheduled Castes and Scheduled Tribes Officers Welfare
Co v The State of Uttar Pradesh & Anr (1996) has quoted Swami Ranganathananda of the
Ramakrishna Mission on the definition of Dharma as follows:

… Dharma stands for the integrating principle in human society and can be
translated roughly as justice or righteousness or ethical sense. Next to the truth of
the Atman, it is the most significant and pervasive truth and value in Indian
culture. Dharma is that very truth of the Atman reflected in the social context of
human interactions.

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 Unlike Western legal systems that often focus on individual rights and adversarial
proceedings, Indian legal thought emphasizes a more holistic approach to justice. Concepts like
Dharma and Karma (the law of cause and effect) encourage a focus on individual duty, social
harmony, and the long-term consequences of actions. This holistic perspective often seeks to
balance individual rights with societal needs and promote restorative justice.

The Contractarian tradition, from Hobbes onwards, presumes the centrality of self-interest of
the moral or political agent in their policy formulation and therefore leaves the pure altruistic
concerns for the other untheorized in their account. The motivation to follow the law is a necessity
or a rational assessment of the best strategy for maximizing self-interest and does not have any
bearing on the personal pursuit of improvement of the self. Though the Kantian2 account of
contractualism places the dignity of the human person at the centre of his method of self-
legislation, the primary drive remains the desire not to be treated in a particular manner. Further,
the norms borne out of this hypothetical contract amongst self-centred beings may serve some
altruistic objectives, but will always have an inherent fragility for not being the product of
goodwill. Contractarians like John Rawls believe that the best conception of a just society is one in
which the rules governing that society are rules that would be chosen by individuals from behind a
‘veil of ignorance’. The ‘veil of ignorance’ as discussed above is a hypothetical situation in which
individuals do not know any particular details about themselves, but they at least know that they
are human beings and therefore choose the policies that suit themselves. But Dharmic concerns are
not based on any such presumptions of ignorance of one’s position, but on the awareness of one’s
unity with the other and external world and the cosmos emphasising their interconnectedness.

Ancient Indians talked about Matsyanyaya or justice in the world of fish, where a big fish
can freely eat a small fish. So avoiding Matsyanyaya should be the essential part of justice. Rawls
tries to protect small fishes from being devoured by the big ones by formulating rules without
knowing one’s own size and Sen wishes to infuse the element of actual happenings as a constant
reminder to the legislator. However, Dharmic approach, following the establishment of
Dhramavyavastha as ultimate aim in the Mahabharata irrespective of all other virtues and duties of
individuals involved in it, would include Sen’s caution of considering the actual injustices as
Dristanta in its Niskama theorisation of a just order, which is Rawlsian, the only difference being
it is not born out of ignorance of our own status but full awareness of the entire eco-system and
interconnectedness of physical, human and spiritual world.

REFERENCES

1. Bentham, Jeremy, The Principles of Morals and Legislation, ed. Laurence Lafleur,
New York: Hafner Press, 1948.
2. Bhattacharya, P., Conceptualization in the Manusmriti, New Delhi: Manohar, 1996.

2
Rationality requires that we respect persons, which in turn requires that moral principles be such that they can be
justified to each person.
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3. Dasti, Matthew R. “Nyaya” in Internet Encyclopedia of Philosophy; available at
https://iep.utm.edu › nyaya

4. Derrett, J. D. M., Manusastravivarana, Vol II, Wiesbaden: Franz Steiner Verlag, 1975.
5. Dhavan, Justice S. S. The Indian Judicial System: a Historical Survey, High Court,
Allahabad Part A: Judicial System in Ancient India,
https://allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.htm
6. Duignan, Brian, A Theory of Justice, Last Updated: Feb 17, 2025 ; available at,
https://www.britannica.com/topic/A-Theory-of-Justice
7. Dwivedi, Girija P., (trans.) Manu Smriti, Lucknow: Naval Kishore Vidyalaya,
8. Heywood, Andrew, Key Concepts in Politics and International Relations, London:
Palgrave, 2000.
9. Hinton P, Timothy., (ed.), The Original Position, Pp. 1 – 17; Cambridge University
Press, 2015, available at, https://www.cambridge.org/core/books/abs/original-
position/references/79CAB8B671349F32636E9A0404D582C4
10. https://www.britannica.com/topic/equality-human-rights
11. https://www.britannica.com/topic/social-justice
12. Hume, David, A Treatise of Human Nature, Book 3: Of morals PART II: Of justice and
injustice. Section 1 Justice, whether a natural or artificial virtue, Oxford: Clarendon
press, 1888.
13. Jois, M. Rama, Legal and Constitutional History of India, New Delhi: Universal Law
Publishing, 2022.
14. Kaul, Ratan, “Reflections on Justice and Dharma (Righteousness) in ancient Indian
texts” in International Journal of Humanities and Education Research; 2024; 6(2) (80-
83) available at: https://www.humanitiesjournal.net/archives/2024/vol6issue2/PartB/6-
2-14-107.pdf
15. Krishna Iyer, V.R. Human Rights and the Law, Indore: Vedpal Law House 1994.
16. Leslie-B.-Curzon,-Paul H. Richards-The Longmans Dictionary of Law (7th ed.2007)
17. Lorraine, D., “Life, Chance and Life Chances.” Daedalus, 2008.
18. Madhavanand S. (translation) Brihadaranyaka Upanishad, Almora: Advaita Ashram,.
19. Mahabharat (Shanti Parva), (trans.) Gorakhpur: Gita Press.
20. Manusmriti; The Oxford International Encyclopedia of Legal History, 2009; available
at https://www.oxfordreference.com/
21. Nietzsche, Friedrich, The Antichrist, trans. by H L Mencken New York: Alfred A.
Knopf, 1931
22. Nikhilananda, Swami, “The Realistic Aspect of Indian Spirituality” (216-247), in
Moore, Charles A. The Indian Mind: Essentials of Indian Philosophy and Culture,
Delhi: Motilal Banarsidass, 2008.
23. Nozick, Robert, Anarchy, State, and Utopia, New York: Basic Books, 2013.
24. Rawls, John., A Theory of Justice, Revised Edition, Cambridge, Massachusetts: The
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25. Saksena, S. K. “Relation of Philosophical Theories to the Practical Affairs of Man”
(19-40) in Moore, Charles A. The Indian Mind: Essentials of Indian Philosophy and
Culture, Delhi: Motilal Banarsidass, 2008.
26. Samashastri R. (trans.), Kautilya’s Arthashastra, Parimal Publications, Delhi.
27. Sandel, Michael, Liberalism and the Limits of Justice, Cambridge University Press,
1988.
28. Sen, Amartya, The Idea of Justice, London: Penguin Books, 2010.
29. Sharvanand, S., (trans.) Taittiriya Upanishad, published by Ramakrishna Math
(Madras)
30. Shukla, V N., Constitution of India, Lucknow: Eastern Book Company, 2008.
31. Underwood, Frederic B., “Aspects of Justice in Ancient India” 271-285, Journal of
Chinese Philosophy, vol-5, issue-3, Sept. 1978.
32. Wenar, Leif, “John Rawls”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of
Philosophy (Summer 2021 Edition).

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 NYAYA IN LEGAL REASONING AND ARGUMENTATION

Mohan Parasain

The province of law applies logical and critical thinking in all of its stages:
evolutionary, legislative, interpretive and dispute resolution. This chapter makes a
humble attempt to invoke Nyaya logic and epistemology for a renewed understanding
of legal reasoning and argumentation. The main objective of this chapter is to introduce
law students and legal researchers to Indian logic and epistemology so that legal
reasoning, courtroom rhetoric, parliamentary persuasions in the legislative process and
ultimately the legal system of our land could be benefitted from the critical and
analytical thinking of her past. Though Dharmashastra are the main texts to look into
if we wish to find the legal philosophy of ancient India, our quest is bound to be
incomplete if the assertions of the Dharmashastra are narrated to the modern mind
without situating and contextualising them in the logical and epistemic foundation of
the norms. Therefore, the first part of this chapter discusses the importance of logic
and epistemology in Indian thought, the second part spells out the Nyaya philosophy
including the discussion on sixteen categories in Nyaya Sutra, sources of valid
knowledge and validity of reasoning, and the third part attempts to evaluate the
application of logical reasoning or Nyaya method of dialectic and ‘grounds of defeat’
in legal thinking and argumentation.

INTRODUCTION

The different philosophical schools of Indian origin have a common incorrigible conviction
that critical thinking is incomplete without an account of the ‘ways of thinking’. Their diverse
world-views are intricately entwined with their respective life-views and both are in turn based on
their respective epistemologies i.e., theories of knowledge with regard to its source, method,
validity and limitations. Therefore, the prescribed pursuits for individuals, spiritual practices, legal
and political system, medical practices, social structures and understanding of the world at large
are all embroidered in the cultural and epistemic structures of Indian origin. In other words, there
is cohesion of cultural provinces in art, literature, social and political organisation, which is a
“complex and continuous whole.” As a result, the Western thought-binaries of reason and
experience, subjective and objective, rational and emotional or even philosophical and religious,
create more hurdles than offering any understanding of the Indian structures of knowledge and
assertions made on the basis of that knowledge system. Further, if we try to look into any one
aspect of the traditional Indian thinking through the prism of modern division of sciences or
compartmentalised disciplines, we may be led into confusion. The walls of disciplinary divisions


Joint Director, House of the People, Parliament of India. The author is PhD in Philosophy from Panjab University,
Chandigarh.

277
melt down in the integrity of knowledge disciplines in Indian tradition and that integrity is mostly
pronounced in the analytical and critical thinking and a quest for logical and epistemological
foundation of any of the integrated knowledge disciplines. The province of law applies logical and
critical thinking in all of its stages: evolutionary, legislative, interpretive and dispute resolution.
This chapter makes a humble attempt to invoke Nyaya logic and epistemology for a renewed
understanding of legal reasoning and argumentation.1

The main objective of this chapter is to introduce law students and legal researchers to
Indian logic and epistemology so that legal reasoning, courtroom rhetoric, parliamentary
persuasions in the legislative process and ultimately the legal system of our land could be
benefitted from the critical and analytical thinking of her past. Legal theorists, legal philosophers,
argumentation theorists, philosophers, legal students may find important tools in Nyaya for
addressing the theoretical and practical problems of legal argumentation. The choice of Nyaya to
serve the above stated objective is justified because public reasoning was developed and sharpened
in India particularly because of Nyaya and Buddhist scrutinising each other for centuries. Further,
Nyaya is acknowledged not only by the six traditional schools of Indian thought, but also
continuously engaged in disputations by the heterodox schools as the worthiest opponent. The first
part of this chapter discusses the importance of logic and epistemology in Indian thought, the
second part spells out the Nyaya philosophy including the discussion on sixteen categories, sources
of valid knowledge and validity of reasoning, and the third part attempts to evaluate the application
of logical reasoning or Nyaya method of dialectic and grounds of defeat, which are by-products of
Nyaya epistemology, in legal thinking and argumentation. As Nyaya is “a multi-dimensional
system of interlocking views,”2 historically spreading across three thousand years, an introductory
quest into only Pramanavada and dialectical methods must begin with a disclaimer that the present
effort may miss out certain important insights in some other corners of the Nyaya universe.

1. HISTORY OF LOGIC AND EPISTEMOLOGY IN INDIAN THOUGHT

As India has been a “knowledge civilisation” and the only surviving civilisation of
antiquity which has continuity till the modern period, any search into the secret of her survival
must look deeper into her rational and critical innovations than merely parroting the 19th century
colonial and missionary ‘fascinations’ with her esoteric past. A misconception has been created
that there is no analytical tradition outside the western world and Indian philosophy is limited to

1
Past few decades have witnessed the study of legal reasoning and argumentation drawing interdisciplinary interest,
with logical, rhetorical and dialogical approaches to the subject coming together to offer some credible theories of
legal reasoning. The theories of legal reasoning viz., logic-based, case-based, discourse model (adversarial reasoning)
and Alexy’s ‘procedural theory’ are important ones. Further, whether artificial intelligence is capable of analogical
reasoning in legal matters is a question, which is getting recent attention. The Indian legal system, particularly Nyaya
logical models and methods, may offer a very important perspective to the ongoing discussion.
2
Stephen Phillips, “Gangesha”, The Stanford Encyclopaedia of Philosophy (Summer 2024 Edition), Edward N. Zalta
& Uri Nodelman (eds.), available at: <https://plato.stanford.edu/archives/sum2024/entries/gangesa/>, last visited on
16th Nov 2024.

278
primitive speculations, with some occult religious cults and “an odd assortment of spirituality,
mysticism, and imprecise thinking, concerned almost exclusively with spiritual liberation.”3 It is
as if “Indians could engage themselves in philosophical reflection without reflexivity, without
linguistic or conceptual self-awareness.”4 Such misconception along with the complacency in
continuing with the immediate colonial past with well-established British administrative and legal
framework have deprived us of any genuine critical inquiry into the epistemological and logical
foundations of our civilisation and evolve a decolonised perspective into our juridical system.

Most of the attempts by legal researchers to develop Indic or Dharmic jurisprudence have
been limited to the inquiry into the Dharmashastras. Dharmashastra means ‘the teaching (or
science) of righteousness’ and includes the modern understanding of the concept: ‘law’ and much
more.5 Because, Dharma, as righteousness, has greater import than the norms required for day-to-
day administration of justice. There is no doubt that Dharmashastras are the main texts to cull out
the legal philosophy of ancient India. It is because Dharmashastras are not only the repository of
ancient Indian legal thought, but the Indian concept of Dharma is the ‘institutional a-priori’ of
even its modern legal system.6 But our quest is bound to be incomplete if the assertions of the
Dharmashastras are narrated to the modern mind without situating and contextualising them in
the logical and epistemic foundation of the norms. When Indologists trained in Western knowledge
paradigm, which was believed to be the only philosophically credible intellectual paradigm, treated
the “practising grammarian, logician and metaphysician as mere narrator of classical text, as
‘local informants.’”7 and whose data needs to be conceptualised in Western metaphysical and
theoretical framework, thereby objectifying the entire Indian traditional knowledge in historical,
comparative and philological perspective, the task of searching Indic jurisprudence in indigenous
rationality was muddled. As J. N. Mohanty says,

The role a concept of rationality has within a culture is a highly stratified one, its
criteria and principles operating first of all in the life-world of the community concerned,
then in the higher-order decisions of the scientists, law-givers and artists, finally in the
theoretical discourse of the philosophers.8

Therefore, the rationalities which have travelled through the public discourse to shastras
and then to the treatise of logic and epistemology must act as the most important supplement to

3
B. K. Matilal, Epistemology, Logic, and Grammar in Indian Philosophical Analysis, xii, (ed. by Jonardon Ganeri,
Oxford University Press, New Delhi, 2005).
4
S. Deshpande, “Introduction: Modern Indian Philosophy: From Colonial to Cosmopolitanism”, in: S. Deshpande
(ed.) Philosophy in Colonial India. Sophia Studies in Cross-cultural Philosophy of Traditions and Cultures Volume
11, 5, (Springer, New Delhi, 2015).
5
J. D. Derrett, Dharmashastra and Juridical Literature, Vol. V. Fasc. 1. 2 (Manohar, New Delhi, 2020).
6
M. Parasain, “Philosophy for Environmental Policy and Law”, 100, in: Biswas, D., Ryan, J.C. (eds.) Environmental
Humanities in India. Asia in Transition, Vol. 25, (Springer, Singapore, 2025).
7
Supra note 4 at 7.
8
J.N. Mohanty, Essays on Indian Philosophy, 261 (ed. by Purushottama Bilimoria, Oxford University Press, Delhi,
1993).

279
the Dharmashastras. The Dharmashastras themselves admit that dharma or duty should be
ascertained by logical reasoning (Tarka), and recommend Anvikshiki as a necessary study for a
king and the logician (Tarki) as an indispensable member of a legal assembly.9 Kautilya
characterises logic as the lamp of all sciences and the permanent shelter of all virtues.10 Therefore,
as a “theory of theoretical practice,”11 the importance of logic is emphasised by both epics and
Dharmashastras.

The broad division of Adhyatmavidya and Anvikshikividya places the general scheme of
things in Indian tradition in proper perspective. The former, which is also called Brahmavidya or
Atmavidya, is the foundation of all other sciences, but embodies certain assertions about the nature
of the soul, which are intuitive and admittedly beyond the limitations of reason, while Anvikshiki
contains reason supporting their assertions. So Anvikshiki dealt with divine as well as theory of
reason and in about 650 BC it was recognised as a distinct branch of learning.12 In about 550 BC
Anvikshiki was more or less associated with logical argumentation when Medhatithi Gautama
wrote Nyayashastra. Nyaya, in ordinary language, means ‘right’ or ‘justice’. Nyayashastra,
therefore, means the science of right judgement or true reasoning.13 Though the Nyayasutra or ‘the
aphorisms of the Nyaya system’ were compiled by Aksapada Gautama later14 Nyaya’s prehistory
is tied to the ancient traditions of debate and rules of reasoning (Vada Shastra). It has long been
believed that the received text of Nyaya Sutra shows ‘compilatory’ features. Specifically, there is

9
Manusamhita, Adhyay 12 verse 106; Adhyay 7 verse 43; and Adhyay 12 verse 111 respectively. (Manusamhita
quotes here and henceforth from S. C. Vidyabhushan, History of Indian Logic: Ancient, Medical and Modern Schools,
(Shiv Books International, New Delhi, 2005).
10
Arthashastra, ch.II.
11
J. N. Mohanty, Reason and Tradition in Indian Thought, 227 (Clarendon Press, Oxford, 1992).
12
S. C. Vidyabhushan, History of Indian Logic: Ancient, Medical and Modern Schools, 4 (Shiv Books International,
New Delhi, 2005).
13
Yuan Chwang (Hwen-thsang) translates Nyaya to mean true reason and the Tibetan translation also conveys the
same meaning (Supra note 12 at 40).
14
Nyaya Sutra, according to most of the commentators, was compiled between 200 BC to AD 100. The first
commentary on Nyaya Sutra, Nyaya Bhashya of Vatsyayana (400 AD), responds to Nagarjuna and Vijnanavada,
Nyaya Vartika of Udyotkara (635 AD) is a sub-commentary on Nyaya Sutra, which responds to Dignaga’s definition
of perception along with giving critical accounts of Vasubandhu and Nagarjuna; Nyayavartikatatparyatika of
Vacaspati Mishra (841 AD) responds to the criticisms against his predecessors Udyotkara and Vatsyayana by the
Buddhist logicians. The debate between Buddhists and Naiyayikas which was carried out for centuries in public
forums and written texts offers a very rich tradition of public discourse and it was played out on logical and
epistemological grounds rather than being a sectarian conflict. Thus, the history of evolution of Indian logic itself is
adversarial and argumentative and therefore, the conceptual categories evolved in the process are most conducive for
our modern adversarial legal reasoning. In order to simplify the task for giving an overview of Nyaya logic and
epistemology, the definitions of technical terms etc have been given in this research from Nyaya Sutra without going
into the complexity of Nyaya-Buddhist controversy on the meaning and otherwise of the concepts. A full-fledged
argumentation theory which may come up from the detailed account of Indian logic and dialectic incorporating Jaina
tradition, Lokayata tradition, Mimamsha theory of interpretation, Grammarian’s accounts and Navya Nyaya along
with classical Nyaya and Buddhists, warrant a collaborative research project with experts from the field of Law,
Philosophy, language and rhetoric.

280
evidence to suggest that portions of the text belonged to some other work that dealt with debate,
which was possibly a debate manual.15

The Anvikshiki, by virtue of the predominance of the theory of reason, was also called
Hetushastra or Hetuvidya16, Tarkavidya or the art of debate or Vadavidya17 or the art of disputation
and also Nyaya Shastra. Nyaya logic differs from the syllogistic demonstrations of Aristotle,
though the basic principles of inherence involved in syllogism is similar to that of
Panchavayavakya of Nyaya. The dialectics or the art of philosophic disputation in Nyaya and its
historical opponent Buddhism resemble the notion of dialectic found in the writings of Plato and
Aristotle. Though it is yet to be established which of the ancient civilisations influenced the other,
the antiquity of the Indian system of logic cannot be disputed. It is primarily because, ancient
Indian literature, in written form, were mostly believed to be compilations from a rich oral tradition
and influenced by a prolonged literary existence of Sanskrit. Therefore, as dating of any Indian
text is notoriously difficult, dating of the ideas inherent in the texts remains impossible without
employing certain loose secondary methods. In Indian tradition, when an idea is addressed in a
work, the circumstances of life or even the identity of the author was not considered as important
as in the West. The persons of the author are not infrequently obliterated or fated to remain
anonymous forever.18

The Greek writings mention about the ‘gymnosophists’ of India.19 (Matilal, 1985, 1).
Before Alexander came to India, the Greeks had some idea about a mysterious world which
Herodotus mentioned in his Histories, where ‘spiritual athletes’ roam at the very edge of the
oikoumene (inhabited or inhabitable known world).20 Maulana Azad, in his “Introduction” to
History of Philosophy: Eastern and Western, mentioned about the accounts of Alexander that his
teacher Aristotle had requested him to find out the state of knowledge among Indians, which gives
a fair amount of suspicion that the Greeks were aware of the Indian wisdom much before the
invasion21 But unfortunately, as Kapil Kapoor laments, “Europe’s 13th century successful venture
of relocating the European mind in its classical Greek roots is lauded and expounded in the Indian

15
Alberto Todeschini, “Twenty Two Ways to Lose a Debate: A Gricean Look at the Nyaya Sutras Points of Defeat”
50, Journal of Indian Philosophy 38 (1):49-74. 2010, Available at: https://doi.org/10.1007/s10781-009-9083-y last
visited on November 15, 2024.
16
Manusamhita, 2-11, Mahabharata, Adiparva, Adhyay 1, verse 67 and in other places call it Hetushastra.
17
Manusamhita, Mahabharata, Skandhapurana, Ramayana, Yajnavalkya samhita and Nyaya Sutra call it Vadavidya
and Tarkavidya. Supra Note 12 at 7-8.
18
Supra note 5 at vii.
19
B. K. Matilal, Logic, Language and Reality: An Introduction to Indian Philosophical Studies, 1 (Motilal
Banarsidass, New Delhi, 1985)
20
Sanujit, “Depiction of India in Ancient Literature”, World History Encyclopaedia, 11 Jan 2011, available at
https://www.worldhistory.org/article/199/depictions-of-india-in-ancient-literature/ (last visited on November 16,
2024).
21
Maulana A. K. Azad, “Introduction: The Meaning of Philosophy”, in History of Philosophy: Eastern and Western,
Vol. 1, 24 (S. Radhakrishnan, (ed.) George Allen & Unwin Ltd., London, 1952).

281
universities as ‘revival of learning’ and ‘Renaissance’. But when it comes to India, the political
intellectuals dismiss exactly the same venture as ‘revivalism’ or ‘obscurantism’.” Therefore, he
advocates for “relocating the Indian mind in Indian thought.”22

Though Indian tradition has distinct and complete-in-themselves philosophical schools,

there is a commonality amongst them on two fronts relevant to the present enquiry: firstly, an
epistemological analysis of ‘ways of thinking’ which aid their critical thinking and secondly their
foundational philosophical quest for the highest good. The schools of Indian thought are always
engaged with each other in their agreements and disputation as well as in practices and spiritual
quest for salvation. Even a school of logical realism like Nyaya begins with the assertion that “the
knowledge of the true character of the sixteen categories leads to the attainment of the highest
good.”23 The sutras and the commentarial tradition argue that epistemic success is central in the
search for happiness, since we must understand the world properly should we desire to achieve the
goods it offers. Nyaya argues that epistemology should improve cognitive abilities to help people
achieve their life goals.

Therefore, one of the most important medical works of the classical period, the
Charakasamhita talks about the rules that were to be observed in actual arguments and an
indication of what handbooks or manuals of debate may have contained. Panchavayavakya or five
step demonstration of argument (sthapana) is found in the logical section of the Charakasamhita,
which also borrows a lot from the categories of Vaisheshika School, which is a sister-system of
Nyaya. Though the medical school might have independently developed its logic and
epistemology, it shares certain common concerns with the first and fifth chapters of the
fundamental text of the Nyaya School of philosophy, the Nyaya Sutra. The treatment of logical
method and ways of argumentation in Charakasamhita is much simpler and less technical than in
Nyaya Sutra24, because of the obvious reason that the former was primarily developed as method
and philosophy of science i.e., an epistemological and logical foundation for a scientific practice
of medicine. The similarity between the two suggests that there is a common ancestry of a rich
oral tradition of argumentation or the existence of treatises which influenced both the medical
school and logical school. Moreover, in any build-up to a school of holistic knowledge system, an
inquiry into the ‘ways of knowing’, art of disputation and conditions of defeat were commonly
adhered to.

2. NYAYA LOGIC AND EPISTEMOLOGY

22
Kapil Kapoor, “Eleven Objections to Sanskrit Literary Theory: A Rejoinder”, available at:
http://www.indianscience.org/essays/st_es_kapoo_eleven.shtml (last visited on November 16, 2024).
23
Ganganath Jha, Gautama’s Nyaya Sutras: with Vatsyayana-Bhasya, 3 (Oriental Book Agency, Poona, 1939).
24
S.N. Dasgupta, vol. 1, A History of Indian Philosophy, 302 (Motilal Banarsidass, New Delhi, 2022).

282
 Nyaya philosophy provides a profound framework for understanding justice and legal
principles within the broader context of Indic jurisprudence. Nyaya emphasises logic, reasoning,
and the pursuit of truth. Nyaya’s methods of analysis and argument resolution influenced much of
classical Indian literary criticism, philosophical debate, and jurisprudence.25 Nyaya Sutra begins
with enumerating the sixteen categories, the knowledge of which, it says, leads to the highest good.
The categories, scholars believe, are arranged in such a manner that they represent stages of
dialectic or the process of clearing up knowledge by discussion. A bare mention of them gives a
fair idea about Nyaya philosophy. The sixteen categories are: Pramana (1), which signifies the
means of knowledge; Prameya (2) or object of knowledge; Pramana and Prameya constitute the
basis of a debate, where a thesis is to be proved but Samsaya (3) or doubt arises out of conflicting
judgements of the disputants when they while pursuing their Prayojana (4) or purposes cite
Dristanta (5) or familiar instances which is not open to such a doubt. The case is then shown to
rest on Siddhanta (6) or tenets, which are accepted by both the parties. That the case is valid is
further shown by an analysis of it in five parts called Avayavas (7). Having carried out Tarka (8)
against all contrary suppositions the disputant affirms his case with Nirnaya (9) or ascertainment.
If the opponent (defendant), not being satisfied with this process of demonstration, advances an
antithesis, he will have to enter upon Vada (10) or discussion which may assume the form of Jalpa
(11) or a wrangling and Vitanda (12) or cavil. Failing to establish his antithesis, he will employ
Hetvabhasha (13) or fallacious reasoning Chhala (14) or quibbles, and Jati (15) or sophisticated
refutation on the basis of false analogy, the exposure of which will bring about his Nigrahasthana
(16), the twenty-two grounds of defeat.26 (Vidyabhushan, 52).

Such a detailed employment of logical and epistemological tools to understand the nature
of reality and a quest for the highest good through reason and where logic, moral laws and quest
for selfhood are interwoven, is the most unique method of philosophising. The highest good is
sought visualising adversarial opinions developed through a properly prescribed research
methodology (definitions and kinds of Siddhanta (sutra 26 and 27), the 6th Category, one of which
is a hypothetical doctrine (sutra 31), a methodological point of departure for the discussion to begin
with and the Siddhanta being based on sound common sense27). These sixteen categories may be
grouped into Pramana Theory, Metaphysics, Procedure and Dialectics or Vada-vidhi. For our
limited purpose of legal reasoning in this chapter we shall discuss the Pramana Theory in this
section and dialectics in the next so that it may serve as an introduction to our subject of discussion.

3. PRAMANA THEORY

25
M R Dasti, “Nyaya”, Internet Encyclopaedia of Philosophy, available at: https://iep.utm.edu/nyaya/ (last visited on
November 17, 2024).
26
Supra Note 12 at 52.
27
Dristanta (category 5), being defined by sutra 25 as “with regard to which both ordinary man and trained
investigator or professional expert are in agreement” (Supra Note 23 at 57).

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 At its essence, Nyaya is concerned with epistemology or the study of knowledge and the
methods of acquiring valid knowledge (Pramana). Pramanas serve both as originating causes of
true cognition and means of critical appraisal of cognitive claims. It is the most important
component of a rational belief. A rational belief is one that is appropriately caused, justified by
one or more appropriate Pramanas and leads to successful practice28 (Mohanty, 332). Nyaya
identifies four valid sources of knowledge: perception (Pratyaksha), inference (Anumana),
comparison (Upamana), and testimony (Shabda). These sources serve as the foundation for our
understanding of Nyaya argumentation and its application in legal reasoning.

1. Pratyaksha (Perception): Nyayaysutra defines perception as that right knowledge

generated by the contact of the sense with the object, which is devoid of doubt and error. 29
Perception is commonly called the Jyesta Pramana (the ‘eldest’ knowledge source) by Nyaya,
since other Pramanas depend on perceptual input, while perception operates directly on the objects
of knowledge. Indeed, Gangesha suggests the following definition of a perceptual cognition: “a
cognition that does not have another cognition as its proximate instrumental cause.” Inference,
analogy, and testimony, on the other hand, depend on immediately prior cognitions to trigger their
functioning.

The primacy of observation is central to any knowledge claim. Perception is accepted by

all the schools of Indian thought as a valid source of knowledge including the Charvakas. Direct
observation forms the basis for establishing facts in legal contexts as well. Evidence presented in
court must be verifiable through sensory experience, aligning closely with the principles of
evidence in modern jurisprudence.

2. Anumana (Inference): Anumana is the most important contribution of Nyaya. Nyaya

Sutra 1.1.5 defines inference as follows.
An inferential cognition is preceded by perception, and is threefold: from
cause to effect, from effect to cause or from that which is commonly seen.
Inference consists in making an assertion about a thing on the strength of Linga or mark
which is associated with it, as when finding smoke rising from a hill, we remember that since
smoke cannot be without fire, there must be fire in the distant hill.30 Here smoke is the hetu or
linga. That about which assertion has been made, the hill in the example, is called Paksha, and fire
is Sadhya. For a valid inference it is necessary that the linga must be present in the Paksha and all
other known objects similar to Paksha in having the sadhya in it but must not be present in any
such object, which does not possess the sadhya. The use of Avayavas or five step demonstration
is a type of proof procedure admissible in a critical inquiry. It insists that the inquirer be able
explicitly to set out for others the piece of knowledge so acquired as the conclusion of a precisely

28
If something conflicts in practice (vyaghatavadhirasamkha), the cognition has not overcome the sceptic challenge.
29
Supra note 24 at 333.
30
Id at 343.

284
formulated demonstration (avayava). In its general schematic form, a demonstration scheme has
five steps: (i) Preliminary statement of the thesis to be proved. (ii) Citation of a reason. (iii)
Invoking an example. (iv) Application to the present case. (v) Assertion with confidence of the
conclusion.31

For example: (i) There is a fire on the mountain (pratijna, thesis). (ii) Because there is
smoke there (the hetu, reason or probans). (iii) As in the kitchen (the udaharana, illustration of
concomitance). (iv) The mountain is likewise smoky (the upanaya, application of the rule). (v)
Therefore, there is fire in the mountain (the nigamana, conclusion). To give another example in
simpler form, if one has to convince another that it is going to rain, he would argue: “Look, it is
going to rain. For, see that large black cloud. Last time you saw a large black cloud like that one,
what happened? Well, it’s the same now. It is definitely going to rain.”

The general conditions for something to be taken up as a subject for inference are that it be
under dispute or currently unknown, with no reports from other knowledge sources available to
definitively settle the issue. There is a token of inductive support for the Vyapti in the form of
Udaharan, a kitchen hearth. There are also known negative examples, (vipaksha) of something
that lacks both the prover property and the probandum; where there is no fire, there is no smoke,
like a lake. Obviously, an instantiation of the prover property in the vipaksha class vitiates the
argument.

Legal reasoning often involves drawing conclusions based on available evidence. Nyaya’s
method of inference enables legal practitioners to construct logical arguments and derive legal
principles from specific instances.

3. Upamana (Comparison): Upamana consists in associating a thing unknown before with

its name by virtue of its similarity with some other known thing. A man from the city who has
never seen a wild ox goes to the forest and asks a native what is wild ox? The native replies “it is
just like a cow.” Then when he sees a wild ox and finds it similar to a cow, he forms the opinion
that it is the wild ox. Had the native told him “This is wild ox” by pointing towards the wild ox,
the knowledge source would have been Shabda. The association of the known with the unknown
makes it Upamana.

The principle of comparison allows for the application of established precedents to new
cases, facilitating the evolution of legal norms. This dynamic mirrors the common law system,
where past judgments and analogical reasoning inform current rulings.

4. Shabda (Testimony): The Nyaya concept of Shabda Pramana is defined as the testimony
of reliable authority (apta). Shabda, as a Pramana is applied not only to the Vedas, but to the

31
Jonardon Ganeri, Philosophy in Classical India: The Proper Work on Reason, 14 (Routledge, London, NY, 2006).

285
testimony of any trustworthy person, and Vatsayana says that trustworthy person may be of three
kinds, rishi, arya or mleccha32, which may be loosely translated in the present context into an
expert, noble or foreigner.

Nyaya’s recognition of valid testimony or Shabda is the most distinctive feature of Indian
epistemologies. Language plays a very important role in shaping our knowledge, but no Western
philosopher recognised it as a source of knowledge as in Pramana tradition. A sentence or a word
by itself may upon being uttered by a competent speaker and heard by a competent listener,
generate in the later a valid knowledge about a state of affairs. Our understanding of the principles
of precedence as well as the authenticity of evidence and testimony has something to do with
dependence on a reliable authority. Shabda Pramana underscores the importance of credible
sources in establishing legal arguments. In this context, the testimony of witnesses and
authoritative texts plays a crucial role, in addition to the legal research being dependent on the apta
vachana or the authoritative precedence, insights and authority of our predecessors. For that
matter, the entire knowledge system is built up on Shabda Pramana, our experiences, reasoning
and comparison, being corroborative to the knowledge and this is what Pramanavada is saying.

Many ancient Indian legal texts, such as the Manusmriti and Arthashastra, reflect Nyaya
principles. Commentators have historically used Nyaya logic to interpret and apply these texts,
blending philosophical rigour with practical legal application. Legal judgments are frequently
grounded in logical analysis, drawing from the Nyaya framework to ensure coherent and just
outcomes. Dharmashastras mention legal reasoning as an important source of our knowledge of
law in addition to Smriti (that embodies the memory of wise men, i.e., tradition), sadachara (good
custom) and atmatusti (self-satisfaction), which may be construed to mean approval of one’s own
conscience. Where law text conflict, Nyaya (reasoning) should step in.33

4. LEGAL REASONING AND ARGUMENTATION

We have observed above that we are doing inference when presuming something to be
true, we conclude that some other things are true and when we express it in language, we are giving
an argument. The condition which distinguishes good inference from bad inference is stipulated
by what is called logic. Logic in India was developed in two distinct traditions: a. Vada tradition,
the tradition of debate which was concerned with dialectical tricks, eristic arguments (arguments
which are presented for rebuttal rather than establishing a point of view) and sophistry and b.
Pramana tradition, which was concerned with the criteria of empirical knowledge. 34 The section
above enumerates Pramana doctrine of Nyaya and the present section gives a brief account of the
Vada and Vada-vidhi (method of debate), with special reference to legal reasoning.

32
Supra note 24 at 304
33
J. N. Mohanty, Reason and Tradition in Indian Thought, 248 (Clarendon Press, Oxford, 1992).
34
Supra note 3 at 96.

286
 In legal reasoning and argumentation, there is a deductive reconstruction of a judges’
justification of a decision and a dialectical process which had led to the selection of the chosen
justification. The adversarial and discretionary nature of legal reasoning also involves reasonable
evaluation of alternative choices. Nyaya philosophy of Vada and Vada-vidhi could have immense
influence on the development of jurisprudence and legal reasoning through its insistence on critical
thinking, disputations, structures of argument, and thereby contributes to a comprehensive
understanding of justice. The system of logic and epistemology in Nyaya is particularly relevant
to legal reasoning and argumentation. The Nyaya method provides a rhetorical model of argument
presentation that relates to and differs significantly from both Aristotelian and contemporary
approaches to argument, rhetoric, and epistemology. The Nyaya method has not been fully
explored in legal argumentation because Nyaya has been misinterpreted as a relative of Greek logic
and the use of commonly translated terminologies often obscure rather than clarify.35

Nyaya Sutra discusses the debate categories in later chapters so that its primary concern
with the acceptable and sound method for philosophical discourse is not compromised in the initial
discussion. It puts the discussion of the debate categories in its natural home, in the context of the
discussion of the Pramanas, means of knowledge, as well as Prameyas, the object of knowledge.
It was concerned especially with the Pramana called Anumana, literally “after-knowledge.” In
other words, this tells us what else we know (or what truths can be derived) when we know certain
things already. The idea was, in effect, an unconscious search after the nature of rationality as it
was understood in the Indian context.36

The development of dialectic in India may be traced back to a critical period when Vedic
ritualism and practices were challenged and social codes, moral norms and Vedic beliefs in the
destiny of the soul were doubted.37 Questions, answers and debates became order of the day.
Matilal has called debate the ‘preferred form of rationality’ in classical India.38 Nothing was too
sacred for criticism and refutation. Manuals for professional debates were written in various
schools for training the debater in the types of debate, types of argument, tricky devices of debate

35
Keith Lloyd, “A Rhetorical Tradition Lost in Translation: Implications for Rhetoric in the Ancient Indian Nyaya
Sutras”, in Advances in the History of Rhetoric, Vol. 10, 20 (The American Society for the History of Rhetoric,
2007).
36
Ibid.
37
Pre-Vedic and non-Vedic philosophies including the extreme materialism of Charvaka has profound influence on
the development of disputation. As early as the Rigveda (10-30-3, 8-70-7, 8-71-8) refers to a class of man
(subsequently designated as Charvaka, a pupil of Brihaspati) who believe that consciousness is produced through
the combination of four elements, and once elements are dissolved in death consciousness also disappears. In
Ramayana (Ayodhyakanda, sarga 108, verse 17) Javala elucidates similar doctrine. (Supra note 12 at 9) Such a
challenge to the orthodox beliefs and philosophies needed proper development of a logical system. Though the
Charvaka epistemology and metaphysics was vehemently criticised by other schools, there was an intellectual
openness in Indian knowledge tradition which may be best exemplified by the following question asked by
Bhartrhari, the 5th century philosopher of language in his last karika of the second kanda of Vakyapadiya, “The
intellect acquires critical acumen by familiarity with different traditions. How much does one really understand by
merely following one's own reasoning only?” (Supra note 22).
38
B. K. Matilal, The Character of Logic in India, 32 (State University of New York Press, Albany, 1998)

287
and grounds for defeat. Charakasamhita39 divides debate into two: debate in the spirit of
cooperation with fellow scholars and debate with opposition and hostility. Nyaya has similar but
more systematic classification and carried more authority in debating circles (Matilal, 1985, 12-
13).

Nyaya debate into three: Vada, Jalpa and Vitanda. In Vada each participant is a seeker of
truth. Vada has the following characteristics:40

(a) There is a thesis and counter-thesis opposing each other. Here the mutually
incompatible attributes are ascribed to the same locus, at the same time and neither to be taken as
finally decided. There is no use of discussion on any subject if the parties come out with pre-settled
conviction. The readiness to let go of one’s dogma if proved to be invalid is the main condition of
any debate, unlike our primetime television debates where the treacherous binary logic of
journalistic formulation of the ‘flashing question’ on the screen (which is already loaded with an
answer) does not allow the panel to resolve any issue at hand and even after an hour of disputation,
the discussion leads the viewer to nowhere;

(b) The proving and disproving of either of the theses should be based upon Pramana and
tarka (logic). The reader may visualise the same example of prime-time debate in each of these
characteristics to understand how it should not be conducted and then proceed to understand how
it should be as per the well-settled debating methods of Nyaya;

(c) Each side should mention the standard five steps in the demonstration of one’s
reasoning.

(d) The reasoning should not entail contradiction with any tenet or accepted doctrine.
In such a debate there will be defeat (Nigraha), but no animosity. By the detection of faulty
reason untenable thesis could be refuted.

In Jalpa, two equal rival parties’ debate with the goal of victory, which may not coincide
with the establishment of truth.41 This is a type of tricky debate which shares the only first two
characteristics of Vada mentioned above and also includes Chala or proving and rebuttal based
upon equivocation and Jati or sophisticated refutation on the basis of false analogy. Here if the use
of Chala and Jati is exposed in the opponent, he has met with Nigrahasthana or points of defeat.

39
Charakasamhita also talks about the utility of debate. It says that debate enhances knowledge and happiness,
produces dexterity, bestows eloquence and brightness, removes misapprehension, and some precious mystic doctrine
may come out from pupil, who owing to a temporary excitement and ambition for victory, is impelled to expound
them in the course of the debate (Supra note 12 at 28-29).
40
Supra note 19 at 12
41
Id at 13.

288
These tricks may be allowed as per the rules of the game, but the onus is on the opponents to stop
this or call out the bluff.42

Vitanda, the third type of debate is characterised by the lack of proving the counter-thesis
or where one tries to censure the other without establishing anything. Here the debater is not
making any statement and thereby not giving his opponent any opportunity to attack his position.
The infamous ‘hit and run’ method in contemporary politics, best exemplifies Vitanda. A
Vaitandika often enters into public discourse not because he has some alternative plan or a thesis
of his own, but just for the fun of it. Vatsayana suggests that if confronted by a Vaitandika, one
should only ask what he proposes for debating. If his motive is simply to refute then also, he
concedes a position viz., refutation of the opponent and then the onus of complete rebuttal shifts
to him. But supposing that the debater is just an inquisitive seeker of truth, who is yet to formulate
his view on the subject, later Niyayikas classified debate into four: vada, vada-vitanda, jalpa and
jalpa-vitanda, the first two being for the honest seekers and the last two for those who debate for
the sake of pride. In fact, according to Matilal, vada-vitanda is a more fruitful method.43

5. NIGRAHASTHANA

A brief account of ‘Points of Defeat’ (Nigrahasthana) offers some light on the Nyaya
method of vanquishing the opponent by showing weakness. Nigrahasthana are those twenty-two
occasions that if met in debate would entail defeat. The conditions under which a debater would
meet with defeat were discussed widely in India and have also attracted considerable attention
from modern scholars. The points of defeat, according to Nyayasutra, are:

1. Abandoning the thesis, in an instance of abandoning the thesis, a debater admits in his
own example the property of the counter example (pratidrishtanta) offered by the opponent.
2. Offering different thesis or shifting of proposition: when the debater presents a different
thesis from the one with which he began the argument.
3. Contradicting the thesis, the truth of the reason is incompatible with the truth of the
thesis.
4. Renouncing the thesis, denying the asserted object when [one’s] position is repudiated.
5. Shifting the reason, the debater has put forward his thesis and a certain reason. The
opponent has attacked this reason and so the debater further qualifies the original reason, thereby
modifying it.
6. Different topic, if during the debate one of the two parties introduces an unconnected,
irrelevant, topic.
7. The meaningless is an argument which is based on a nonsensical combination of letters
in a series. It also violates 1 and 5. Such arguments deserve rebuke.

42
Ibid.
43
Id at 17.

289
 8. The Unintelligible is an argument where the debater has three chances to make himself
understood, but he fails to do so, he is disqualified.
9. The incoherent is one where the uttered words or statements have no meaningful
syntactical connection and the resulting utterance is therefore meaningless. Vidyabhushan gives
the example of an opponent who, finding no other means of self-defence says “ten pomegranates,
six cakes, a bowl, goat’s skin and a lump of sweet.”44 The example appears very simple and the
most obvious but if such an argument is made with sophistry, there could be occasions when such
a verbose nonsense go unrebuked.
10. Mis-timed or inopportune is an argument, the parts of which are mentioned without
any order of precedence. The meaning of the argument is affected by the sequence. Similarly, 11.
Saying too little or Incomplete, 12. Redundancy, 13. Repetition, 14. Non-reiterating, 15. Not
understanding the proposition in spite of repeating it three times. 16. Lack of idea, 17. Evasion,
18. Admission of the opponent’s opinion, 19. Overlooking the objectionable,
20. Objecting the unobjectionable, is accusing of a point of defeat when there is no point
of defeat. 21. Deviating from a tenet, states something that is inconsistent with those very tenets.
22. Pseudo-reasons or hetvabhasa are fallacies of reason. These are occasions when the
debater has met with defeat. Nyaya, in their own admission, say that these 22 are not the exhaustive
ones, but include most of the conceivable situations, where the decision regarding the defeat of a
participant could be arrived at.

These points of defeat are the most important analysis from the point of view of legal
reasoning. The debater loses as soon as he shows his incompetence or acts in a way that indicates
his confusion. Most of the twenty-two varieties are checks in the game of debate and therefore are
very important for the science of disputation and indispensable for legal reasoning. These
situations are pointed out so that they can be recognized and, if recognized, they can be avoided
on one's own and reproached in the opponent’s arguments. Thus, the knowledge of the ‘points of
defeat’ is strategically advantageous. That is, as Todeschini argues, a debater who is conversant
with the norms followed in debates is more likely to be victorious than one who isn’t.45

Thus, the criteria for valid reasoning or the general principle or rule that validates the
reasoning is the prime focus of Nyaya logic. This structure parallels modern legal argumentation,
where claims must be substantiated by evidence and logical reasoning. The mutually irreducible
claims and counter-claims in any dispute in an adversarial legal system require a closure in the
form of justice. Such a closure is facilitated by applying the methods of reasoning in legal
argumentation. By emphasising clarity and precision in definitions and concepts, which is essential
in legal contexts, Nyaya logic may help the modern Lawyers in articulating their arguments while
avoiding ambiguity and misinterpretation. The Nyaya framework encourages the examination of
the consistency of arguments. Legal arguments must be coherent and not contradict established

44
Supra note 12 at 87.
45
Supra note 15 at 55.

290
laws or precedents. Nyaya’s emphasis on inference aligns with the legal practice of drawing
conclusions from evidence. Lawyers use inductive reasoning to connect facts and formulate
arguments that lead to a logical conclusion. Further, through dialectical engagement, anticipating
and addressing counter arguments, a lawyer is enabled to defend her client in a more forceful
manner. Nyaya advocates the use of dristanta or illustrative examples, the fifth of the sixteen
categories to elucidate arguments. It is something that is directly perceived and needs no proof.
Nyayasutra defines an example (dristanta) as “something about which experts and laypersons have
the same opinion (buddhi-samyam).” By (showing) the contradiction of the dristanta the position
of the opponent can be declared as refuted. By the substantiation of the dristanta, one’s own
position is well-established. In law, precedents and case studies serve a similar purpose, illustrating
how legal principles apply to specific situations.

CONCLUSION

In addition to the logical and epistemological aspects, Nyaya philosophy also offers
valuable insights into Indic jurisprudence. Justice (dharma) in Nyaya philosophy is not merely
about retribution; it encompasses a broader understanding of fairness, ethical conduct, and social
order. Nyaya posits that true justice arises from the alignment of law with moral principles and
societal welfare. It advocates for a balanced approach to justice, emphasising that laws must be
applied equitably.

Its principles encourage critical thinking, ethical considerations, and a commitment to

truth- qualities essential for a just legal system. By emphasising logical reasoning, ethical conduct,
and social harmony, Nyaya is relevant to contemporary legal thought and practice in India. As
legal systems evolve, revisiting and integrating Nyaya’s principles can enrich the discourse on
justice, ensuring that the pursuit of truth remains in tandem with the highest good, and at the heart
of jurisprudence. Further, integrating Nyaya principles can enhance legal practice by fostering a
culture of rigorous analysis and ethical reasoning.

Nyaya invites us to view the world differently. Its approach reminds us of what is
important, grounding our arguments in experience, seeking common perspectives, and
testing our solutions as to their fruitfulness. It reminds us that arguments must actualize
sharable realisations in each of us, not just re-affirm what we already thought or attack
the perspectives of others. Most of all, it reminds us that arguments just for the sake of
arguing are “chatter,” that winning indeed isn’t everything, that selfish arguments only
trap us in an endless cycle of fear and desire, and that arguments are known by their
fruits.46

46
Supra note 35 at 39.

291
 Nyaya logic offers a rich and nuanced approach to legal argumentation, emphasising
clarity, consistency, and rigorous reasoning. By integrating these principles into contemporary
legal practice, lawyers can enhance their argumentative skills. As we navigate complex legal
landscapes, revisiting ancient philosophies like Nyaya can provide valuable insights into the nature
of truth and justice. As the ultimate objective of legal reasoning and argumentation is justice, the
moral imperative behind the sixteen categories of Nyaya also holds importance. The categories
listed after nirnaya (ascertainment) and vada (discussion) are considered fallacious, not on the
ground of invalidity of their argument form, but in the sense that the arguments are approached
either with selfish motive or are simply useless, which is considered as the sufficient ground for
immediate disqualification from the debate. For example, the motive for the eleventh category,
jalpa, translated “wrangling,” is simply “gaining victory.” Such debating practices were
condemned in the scriptures too. Manusamhita enjoins excommunication to them (Adhyaya 2
verse 11), Ramayana discredits such persons of perverse intellect (Ayodhyakanda, sarga 10),
Mahabharata warns the followers of Vedanta against communicating their doctrines to such
logicians.

The Indian dialectical system is different from its Western counterpart, because the
Naiyayika or the debater is enjoined to develop a “spirit of detachment” with the awareness that
we are essentially not our bodies or our minds, but the atman within and the relative importance
we place on the things are insignificant. As much of the world’s misery is traceable, directly or
indirectly, to man’s selfishness, Nyaya’s quest for the highest good in the knowledge of sixteen
categories and in the integrity of logical, ethical and metaphysical visions stand out as the most
credible alternative to jurisprudential thinking. Nyaya is not just a method or model, but a way of
seeing and living that involves an unselfish moral vision of the world.47 This moral vision, where
impartiality is not sought in the “veil of ignorance”, but in the knowledge of the true nature of the
self, stands in sharp contrast to the Western liberal and contractarian moral vision. Our justice
imperative must not seek its grounding on the ‘rational assessment of the best strategy’ for
maximising self-interest (contractarian philosophy) and then hypothetically ignoring (bracketing)
our own self-interest so that to formulate an impartial vision for the other (Rawls), when we already
have a more positive moral vision, well-founded on intellectual openness, compassion and a solid
foundation of critical thinking in our own tradition.

In general, Pramanavada and theory of justification in legal epistemology form a theory

of application of law to a particular case, which leads to the problem of interpretation 48 and a

47
M. Hiriyanna, The Essentials of Indian Philosophy, 105 (Harper Collins, London, 1985)
48
Mimamsa deals with the problem of hermeneutics in greater detail, and the principles therein are more or less similar
to the Principles of interpretation taught in law schools like if a sentence’s meaning is explicit, no attempt may be
made to twist it, when literal meaning does not fit with the context, a technical meaning may be assigned, rules of
grammar to be invoked for making seemingly unconnected words into a connected text, contradictory texts should be
so interpreted that they are made consistent, if subordinate clause conflict with the principal one, it must be either
made to agree with the latter or altogether disregarded, etc.

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theory of evidence. Such a multipronged strategy to understand the theory of legal reasoning in
jurisprudence and argumentation, based on the multidimensional and interlocked views of Nyaya
could be useful even in the emerging world of algorithmic problem-solving models and Artificial
Intelligence entering into the legal domain.

REFERENCES

• Azad, Maulana Abul Kalam, (1952). “Introduction: The Meaning of Philosophy” in

Radhakrishnan, S., (ed.) History of Philosophy: Eastern and Western, Vol. 1, London:
George Allen & Unwin Ltd.
• Dasgupta, S N. (2022). A History of Indian Philosophy, Vol.I, New Delhi: Motilal
Banarsidass.
• Dasti, Matthew R. “Nyaya”, Internet Encyclopaedia of Philosophy,
https://iep.utm.edu/nyaya/
• Derrett, J. D. (2020). Dharmasastra and Juridical Literature, Vol. V. Fasc. 1., New Delhi:
Manohar.
• Deshpande, Sharad. (2015), “Introduction: Modern Indian Philosophy: From Colonial to
Cosmopolitanism”, in: Sharad Deshpande (ed.), Philosophy in Colonial India. Sophia
Studies in Cross-cultural Philosophy of Traditions and Cultures Volume 11, New Delhi:
Springer.
• Dhavan, S. S. “Indian Judicial System: A Historical Survey”,
https://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.html
• Ganeri, Jonardon. (2006). Philosophy in Classical India: The Proper Work on Reason,
London, NY: Routledge.
• Hiriyanna, M. (1985). The Essentials of Indian Philosophy. London: Harper Collins.
• Jha, Ganganath, (1939). Gautama’s Nyaya Sutras: with Vatsyayana-Bhasya, Poona:
Oriental Book Agency.
• Kapoor, Kapil, “Eleven Objections to Sanskrit Literary Theory: A Rejoinder”,
http://www.indianscience.org/essays/st_es_kapoo_eleven.shtml
• Lloyd, Keith, (2007). “A Rhetorical Tradition Lost in Translation: Implications for
Rhetoric in the Ancient Indian Nyaya Sutras”, in Advances in the History of Rhetoric, Vol.
10, 2007, the American Society for the History of Rhetoric.
• Matilal, B. K. (1985). Logic, Language and Reality: An Introduction to Indian
Philosophical Studies, Delhi: Motilal Banarsidass.
• Matilal, B. K. (1998). The Character of Logic in India, Albany: State University of New
York Press.
• Matilal, B. K. (2005). Epistemology, Logic, and Grammar in Indian Philosophical
Analysis, (ed. Jonardon Ganeri) New Delhi: Oxford University Press.
• Mohanty, J N. (1992). Reason and Tradition in Indian Thought, Oxford: Clarendon Press.

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• Mohanty, J. N. (1993). Essays on Indian Philosophy, Purushottama Bilimoria ed., Delhi:
Oxford University Press.
• Parasain, M. (2025). “Philosophy for Environmental Policy and Law”, in: Biswas, D.,
Ryan, J.C. (eds.) Environmental Humanities in India. Asia in Transition, Vol. 25,
Singapore: Springer. https://doi.org/10.1007/978-981-97-3933-2_6
• Sen, Amartya, (2005). The Argumentative Indian, New York: Farrar, Straus and Giroux.
• Todeschini, Alberto, (2010). “Twenty-Two Ways to Lose a Debate: A Gricean Look at the
Nyaya Sutras Points of Defeat.” Journal of Indian Philosophy 38 (1):49-74.
https://doi.org/10.1007/s10781-009-9083-y
• Vidyabhushna, S. C. (2005). A History of Indian Logic: Ancient, Medical and Modern
Schools, New Delhi: Shiv Books International.

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 Logical Fallacies in the Nyāya System of Logic and Debate

-Dr. Ashutosh Dayal Mathur

Associate Prof. in Sanskrit, (Retd.)
St. Stephen’s College, Delhi University

Vocabulary

Anumana - Inference
Sādhya – what is to be proved/ established
Hetu – Reason – employed to prove a claim
Pakṣa – the locus where the claim is to be established
Vyāpti – Invariable and unconditional relation between hetu and Sādhya
Hetvabhasa – false hetu which does not bear vyapti with the sadhya
Sapksha – locus of the Sādhya (where the Sādhya is certainly present)
Vipakṣa - Locus of the absence of the Sādhya (where the Sādhya is certainly absent)

In Bharatiya philosophy logical fallacies are largely discussed by Nyaya darshana and have
been suitably adapted and adopted by other schools of Indian philosophy. Nyaya has discussed
many kinds of fallacies which need to be pointed out at various stages in the process of a debate.
Some of them are more formal logical fallacies which show a disconnect between the sadhya and
the hetu in different ways. These are called hetvabhasas. Other fallacies of argument are Chhala
(deliberate distortion), Jati (false analogy), Tarka (absurd argument) and Nigraha sthana (point of
defeat.)

Hetvabhasa: At the beginning of a debate, when a party presents its claim and supports it
with a reason, it's argument can be shown to be fallacious by showing that the reason (hetu) does
not bear an invariable and unconditional relation (vyapti) with what needs to be proved (sadhya).
These are the first stage fallacies to be pointed out when a party first establishes its claim through
a reason.

Formal fallacies or Hetvabhasa:

In the Bharatiya theory of debate and logic as propounded by the Nyāya school and adopted
with suitable modifications by other schools of Indian philosophy, a logical argument is structured
around four major concepts –

a) Sādhya - a claim or something that is to be proved,

b) Pakṣa - the locus where the existence of the Sādhya is to be proved

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 c) Hetu - reason and
d) Vyāpti i.e the invariable relationship between hetu and Sadhya.

A Hetu can prove the occurrence of the Sadhya in a given pakṣa only if there exist the
vyāpti relation between the hetu and the Sādhya. A very popular illustration can make this clear.
Claim - there is fire on the hill because there is smoke on the hill.
Here fire is the Sādhya that is something whose existence on the hill is doubtful and has to be
proved by reason.
Hill is the pakṣa where the existence of fire is doubtful and hence needs to be established.
Smoke is the hetu given to prove the existence of fire.
But it has to be examined whether smoke and fire stand in a vyāpti relationship by which smoke
can logically be said to be the reason for the existence of fire on the hill.

Vyāpti relationship between Sādhya and hetu is analysed in two forms: Co-occurrence and
Co- absence. It is sufficient to show that wherever there is the hetu, there is Sādhya. It is not
necessary to show that wherever there is there sādhya there is hetu as well. In terms of absence, it
is necessary to show that where there is absence of the Sadhya, the hetu is also absent. It is not
necessary to show that where there is absence of the hetu, the sādhya is also absent.

The vyāpti relationship - both in terms of co-occurrence and Co absence, between a given
hetu and a given sādhya, must be unconditional and natural. It should be invariable and not
accidental or occasional.

Applying this principle to smoke and fire one can legitimately say where there is smoke,
there is fire and wherever there is absence of fire there is absence of smoke. Thus, according to the
Nyāya school, there is a valid vyāpti between smoke and fire. Therefore, smoke can be a valid hetu
to prove the existence of fire.

Validity of a hetu is further examined on the basis of five features of a valid hetu (hetu
rupa). These are:

a) Occurence on the pakṣa - i.e. a valid hatu must always exists on the pakṣa
b) Occurrence in Sapakṣa - i.e. a valid hetu must occur in all locii of the given Sādhya It must
be found in all locii of the Sādhya. Because if it is absent from any locus of the Sādhya,
the invariable co-occurence between the two is compromised.
c) Absence from the Vipakṣa - i.e a valid hetu must never occur in any locus of the absence
of the sādhya. It must never be found in a locus where the sādhya does not exist. Because
if it is found in the locus of the absence of the sādhya, then the rule of co-absence is
compromised.
d) It's presence in the given pakṣa should not be refuted by any other valid hetu.

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 e) It's presence in the given pakṣa should not be refuted by any other means of knowledge
like perception etc.

A hetu which satisfies all these conditions can be taken as a valid hetu and can prove the
existence of the sādhya on the given pakṣa. On the other hand, if a given hetu lacks in any of these
essential features, it becomes an invalid hetu and the argument becomes fallacious.

In the Indian system of logic and debate, a hetu which lacks in any of these features
becomes an invalid hetu and leads to various kinds of logical fallacies.

Fallacy of Fact – an argument becomes fallacious if the hetu does not occur in the pakṣa at
all. This can happen in three ways -

First, when in the very nature of things, the pakṣa itself is unreal and non-existent;

Traditional Nyāya Illustration - It is fallacious to argue that the sky lotus is very fragrant
because there is no such thing as a sky lotus. So, the occurrence or non-occurrence of fragrance
in it cannot be shown.

Contemporary Illustration - It cannot be argued in a court of law that a ghost is guilty of

murder because the murder is too weird. Here the ghost is the pakṣa, its guilt the Sādhya and
weirdness of the murder, the hetu. However, this logic is fallacious as the pakṣa i.e. the ghost, is
non-existent (in the contemporary legal world.)

Second, while the pakṣa might exist in reality, but in the very nature of things, the hetu
cannot occur in the given pakṣa.

Traditional Nyāya Illustration - Sound is a substance because it can be seen like other
substances. Here, sound is the pakṣa, that ‘it is a substance’ is the sādhya and that ‘it can be seen’
is the hetu. Now, in the very nature of things, sound can be heard but not seen. Thus, the hetu does
not occur in the pakṣa at all. Therefore, this argument is a fallacious one.

Contemporary illustration - In a murder case, the argument is that the accused is guilty of
murder because he pulled the trigger with his hand. Here the accused is the pakṣa, his guilt is the
sādhya and ‘that he pulled the trigger with his hand’ is the hetu. However, if it turns out that the
accused’s hands were amputated long ago, then the entire case falls. Because the hetu ‘that he
pulled the trigger with his own hand’ cannot be attributed to the accused, i.e. the hetu does not
exist in the pakṣa, the accused.

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 Third, an argument becomes fallacious if it based on a conditional vyapti between sadhya
and hetu i.e. vyapti brought about with the intervention of an external condition.

Traditional Nyaya Illustration: The statement where there is fire, there is smoke, is by itself
invalid. But this can be made right by saying - where there is fire along with wet fuel, there is
smoke. Here, the vyapti between fire and smoke has been artificially created by adding the element
of wet fuel. Hence, the claim that there is smoke on the hill because there is fire, cannot be logically
sustained. Here smoke is the sadhya and fire is the hetu. In this scenario, there is no unconditional
vyapti between the hetu and the sadhya.

Contemporary Illustration –
In a matter regarding sale of a plot of land by A to Mr B, the latter’s counsel argues as
follows -
A has defrauded my client by taking an amount of 10 lakh from him, misrepresenting to him that
he is the owner of the plot of land, my client wanted to purchase.
Now it turns out that A is not the absolute owner of the said plot and co-owns it with his two other
brothers. Therefore, he has cheated my client.
A’s counsel – Mr. A has committed no fraud because he will become the full owner once his
brothers sell their share to him.
Here A’s counsel’s argument is a case of conditional hetu to prove A’s innocence.
A’s full ownership, including his right to sell the plot to Mr B, is conditional upon his brothers
selling their shares to him at some point in future.

Fourth fallacy of fact is where the hetu seeks to prove something which is easily refuted by
perception or other means of proof.

Traditional Nyaya Illustration – Fire is cold because it a dravya like water. The fact of fire
being cold can be easily refuted by touching it. No reasoning can prove that fire is cold.

Contemporary Illustration –
Defence Counsel - Mr. A has not taken any loan from Mr. B.
Plaintiff’s Counsel – Here is a loan deed duly executed by Mr. A which clearly establishes that he
has taken Rs. 10,000/- from Mr. B.
Such clear evidence rebuts any claim made by the defendant.

Fifth fallacy is when an argument seeks to prove a fact which can be disproved by an
equally strong argument.

Traditional Nyaya Illustration – Sound is eternal because it is perceived through the ear
like soundness (the universal property of all sounds). This argument is advanced on behalf of the

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Mimasa school which believes in the eternality of sound. Nyaya refutes it by giving an equally
strong hetu to prove that sound is not eternal – Sound is not eternal because it is produced
(whatever needs to be created is not eternal). Hence, according to Nyaya, Mimamasa claim is
fallacious as it can be controverted with a strong argument.

Contemporary Illustration –
Prosecution – A is the murderer because he was identified by an eye witness at the test
identification parade.
Defence – That argument does not prove A’s guilt because the same eye witness has now failed to
recognize A in the court.
A’s guilt sought to be proved by the prosecution’s hetu is sufficiently countered by the hetu given
by defence.

Fallacy of Contrary Reason – According to the rule of vyāpti, a hetu must have invariable
and unconditional co-occurence with the sādhya, only then can it prove the sādhya. Therefore, an
argument will be fallacious, if a party forwards a hetu which has vyāpti with the absence of the
sādhya. Such a hetu can only prove the opposite of the sādhya because it will show where ever
there is hetu, the sādhya does not exist.

Traditional Nyāya Illustration - Sound is eternal because it is produced. Now, whatever is

produced can only be non – eternal. Hence, the given hetu has vyāpti with the opposite of
eternality, hence the argument is fallacious.

Contemporary Illustration – The accused is guilty because he is insane. Now, insanity

(hetu) has an invariable relationship with absence of guilt. Hence, the given hetu proves the
opposite of what is sought to be proved.

Fallacy of Uncertain Reason – The vyāpti between the hetu and the sādhya must be
absolutely certain and beyond all doubt. However, a hetu whose vyāpti with the sādhya is
uncertain, makes an argument fallacious. This is possible in three ways –

i. Where the hetu is found to be absent from the locii of the sādhya (sapakṣa) (where as it
must always occur there or else their co-occurrence stands disproved);

Illustration – The accused is guilty because he has very peculiar facial features.
This is a false argument because only the accused possesses facial features peculiar to him;
no other person whether guilty or innocent can have his features. Thus, the hetu, (peculiar
facial features) is absent from other guilty persons (sapakṣa) as well.

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 ii. Where the hetu is present in the locus of the absence of the Sādhya (Vipakṣa) (where as it
must always be absent from it or else their co-absence stands disproved);

Illustration – The accused is guilty because he is screaming.

Now screaming is not necessarily and invariably associated with guilt. An innocent person
can also scream to announce his innocence.

iii. Where the invariable relation between the hetu and the sādhya cannot be proved because
there are no illustrations to prove their co-occurrence and co-absence.

Illustration – All migrants are anti American because they are taking away jobs from
Americans.
Here ALL migrants have been given as the pakṣa; hence no migrant can be cited as an
illustration of either co-occurrence or co-absence between the hetu and the sādhya. The
Nyāya system of debate considers such absolute statements as unprovable.

Other fallacies:

A. Tarka: Absurd argument: An argument can also be termed fallacious if it can be shown to
lead to absurd consequences which cannot be acceptable to the party forwarding it. These
fallacies have to be set up to tie down an opponent if he is not willing to concede. It has to
be shown that if the opponent's view were to be accepted, it would lead to consequences
which even the opponent would not be able to accept. In the Nyaya tradition there are
eleven kinds of absurdities. Here only one simple example is being given.
Defending Counsel – My client could not have committed this murder because he wasn’t
in town that day.
Prosecution – If he were not in town, how was he caught on the camera outside the building
where the murder occurred?
The absurdity in the defending counsel’s argument is that he is trying to say that a person
can be caught on camera even when he is not present. So, he has conceded that the accused
was very much in town on the day of murder.

B. Jati (Fraudulent reply based on False Analogy): An argument can be said to be a jati and
hence not valid, if it is based on misplaced analogies. Jati or arguments based on false
analogies are of several types. But here only one simple example is being given.
In a matter regarding a bounced cheque, the prosecution claims that the accused is guilty
because signatures on the cheque tally with bank records.
Against this, the defending counsel argues as under:
If you claim that the accused is guilty because his signatures on the cheque match the
signatures in bank records,

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 Then, I can claim that he is innocent because his photograph in bank records does not match
his real face.
This is a false argument because matching signatures are a proof of guilt but mismatching
faces are no proof of innocence; in Nyaya terminology, the opposite party is making a false
analogy between signatures and photograph; there is vyapti between matching signatures
and guilt but there is no vyapti between not-matching faces and innocence.

C. Chhala or Deliberate Distortion: An argument becomes a distortion when it deliberately

plays on words to twists a statement to mean something else and then criticizes it for being
wrong. In Nyaya there are several kinds of Chhala but only a simple example is being given
here:
In a case of cheating in exams the invigilator complains that the concerned student used
unfair means several times.
The students reply – I looked at my friend’s answer book only twice and that does not mean
several times.
The student’s reply is a deliberate distortion of the intended meaning of the word ‘several’.
The invigilator means to say he caught the student cheating on more than one occasion.
The student is trying to put a more rigid interpretation on the word ‘several’ to mean ‘many’
which is certainly more than two.

D. Nigraha-sthana i.e. Points of Defeat: During a heated contest, parties might make
statements which are either contrary to their original stand or they shift positions or
sometimes deny their own stated position. These and many such possibilities are called
points of defeat in the Nyaya system. Parties are expected to remain alert and watchful of
the statements made by their opponents and point out these pitfalls to the jurors
immediately.
For instance - In a murder case, the defense counsel starts by saying his client has not
committed the murder but when confronted with some evidence he says that the client
killed the deceased in self-defense. This statement is fatal to the case. The counsel has
resiled from his very categorical assertion of his client’s innocence but then accepts that he
killed the deceased.

Further Readings –

1. Chatterji Satish Chandra: Nyaya Theory of Knowledge

2. Vidyabhushan Satish Chadra: A History of Indian Logic

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 ‘INTERPRETATION’ – AN EXPLORATION OF MIMAMSA & ITS
CONTEMPORARY RELEVANCE

-Brunda Karanam*

INTRODUCTION

Certainty in “law” and its “interpretation” is a sine qua non for a harmonious society,
based on the rule of law. The judiciary shoulders the onerous responsibility of ‘interpreting’
laws by deciphering their meaning and legislative intent. Thus, the courts play a very important
role in fulfilling the object for which the statute was enacted, and in promoting justice and
social welfare. “The part that these rules (of interpretation) play in the administration of justice
is by no means less important that the rules of procedure or the rules of evidence”. [1]

The English Courts have evolved various canons of interpretation like the ‘literal rule’,
‘mischief rule’, ‘purposive interpretation’ and others, for statutory interpretation. In India,
the Mīmāṃsā principles, authored by eminent Vedic scholars and logicians well-versed in
language and grammar, to interpret the śrutivākyās (Vedas), came to be applied to interpret
the vyavahāra portions of the Smritis which deal with civil and criminal
laws.[2] The Mīmāṃsā principles were also used by the British Courts in India, to interpret the
personal laws of the Hindus.In the post-independent era too, a few judicial pronouncements
have referred to the Mīmāṃsā principles while interpreting statutes. However, the application
of Mīmāṃsā principles in the modern context of statutory interpretation has not been
consistent. A thorough understanding of the principles is required in order to apply them in
modern statutory interpretation. While Mīmāṃsā is a vast area of study, the scope of this paper
is limited to exploring the relevance of Mīmāṃsā to statutory interpretation in the
contemporary context.

Section 1 deals with the applicability of Mīmāṃsā to legal and statutory interpretation.
Section 2 gives a brief framework of Mīmāṃsā. Section 3 deals with the application
of Mīmāṃsā principles in judicial pronouncements, while Section 4 discusses the
contemporary relevance and challenges in applying Mīmāṃsā principles to modern statutory
interpretation.

1. “मीमांसा” (Mīmāṃsā) – Applicability to Legal and Statutory Interpretation

The unique contribution of India to the field of interpretation is Mīmāṃsā. The meaning
of the word “मीमां सा” (Mīmāṃsā) is “deep reflection, inquiry, examination,
investigation”.[3]Mīmāṃsā is one of the 6 (six) principal Darśanas (schools of philosophy)
in Sanātana Dharma. Mīmāṃsā in the context of interpretation of laws, refers to पूवमीमां सा
(Pūrvamīmāṃsā) or कममीमां सा (Karmamīmāṃsā).[4] Pūrvamīmāṃsā deals with the accurate
interpretation of the Vedic rituals “…and the settlement of dubious points in regard to Vedic
texts”.[5] The MīmāṃsāSūtras were formulated to interpret the cryptic Vedic texts in Sanskrit,
which laid down the rules for rituals and religious ceremonies.[6] The Mimamsakas constructed
“…hyperfine doctrines of ascertainment of the meaning” of śrutivākyās (Vedas), which “…led
them to an elaborate process of reconciliation of conflicts and resolution of doubts arising from

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apparent inconsistencies or contradictions in śruti texts”.[7]“Maharshi Jaiminī is the oldest
renowned author of the monumental work under the title Mīmāṃsā”.[8] Jaiminī’s Sutras “…
are decidedly the most comprehensive and prevailing authority on the subject of
interpretation”.[9]

According to Hon’ble Rama Jois, J., “(t)he prescription of Mimamsa as a qualification

for judges spells out the importance in the interpretation of civil and criminal law”. [10]
Coolebrooke declared that, “The disquisitions of the Mīmāṃsā bear…certain resemblance to
judicial questions…The logic of the Mimamsa is the logic of the law…Each case is examined
and determined upon general principles; and from the cases decided the principles may be
collected. A well-ordered arrangement of them would constitute the philosophy of the law, and
this is, in truth, what has been attempted in the Mīmāṃsā”.[11]

While Mīmāṃsā originally dealt with spiritual duties and rituals, the scientific method
of inquiry and interpretation was equally applicable to laws, civil duties and the like. The
applicability of Mīmāṃsā to statutory interpretation has been explained by K. L. Sarkar in
detail [12] and summarised hereinbelow:

i. The “investigation of spiritual law and spiritual duty” which is the subject matter
of Mīmāṃsā, is “…entirely analogous and similar to that of legal duty and positive civil
law”.[13]

ii. Mīmāṃsā “looks at the words alone”; “…Mimansakas start with the words and then
follow out their consequences”.[14] In this way, Mīmāṃsā “…is identical with the
judicial principles of interpretation”.[15] Contemporary statutory interpretation also
begins with the words used in the statute and their literal meaning.

iii. “…(t)he authority of Mimamsa principles for interpretation of law has been recognised
from ancient times…” [16] They have been referred to and / or relied on by Apastamba,
Baudhayana, Vasista, Vijnaneshvara, Jimutavahana[17] and have been used to
“…reconcile, harmonise and interpret conflicting or ambiguous statements contained
in different Smritis or in the same Smriti”.[18]

Prior to independence, the Privy Council and the British Courts in India have referred
to and / or applied the Mīmāṃsā rules to interpret the personal laws of the Hindus [19] while
deciding cases pertaining to adoption [20], succession [21], validity of marriage [22] etc.
However, it may be seen that the reference to Mīmāṃsā principles in courts in the post-
independent era has sharply declined.[23]

2. Mīmāṃsā– Basic Framework

An understanding of the basic framework of Mīmāṃsā helps in analysing its relevance

to modern statutory interpretation. A basic framework of the procedure, principles, and axioms
in Mīmāṃsā is set out below.

2.1 Adhikarana – Procedure for Interpretation

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Mīmāṃsā has a specific procedure for interpretation – “Adhikarana”, as described
by Kumarilabhatta[24]:

िवषयोिवशय ैवपूवप थो रम्।

िनणय ेितप ा ं शा ेऽिधकरणं ृतम्॥
viṣayoviśayaścaivapūrvapakṣastathottaram।
nirṇayaścetipañcāṅgaṃśāstre’dhikaraṇaṃsmṛtam॥[25]

The 5 constituents of adhikaraṇa, according to Kumarilabhatta, are as follows:

(i) viṣayaḥ – subject / text which has to be interpreted;

(ii) viśayaḥ – doubt / ambiguity;
(iii) pūrvapakṣaḥ – first side or postulation of a probable meaning;[26]
(iv) uttaram – response / answer / counter-argument;
(v) nirṇayah – conclusion.

Thus, adhikaraṇa gives us a systematic procedure to be followed for any interpretation.

As noted by K. L. Sarkar, “…this process of adhikaraṇa is unobjectionable. It gives a
prominent place to the view opposed to what is eventually adopted by way of conclusion, which
by this method acquires a greater clearness and strength than otherwise would have been the
case. This mode of argumentation, consisting of purvapaksha or prima facie argument,
the uttara or refutation of it, and then the siddhanta or conclusion, is peculiar to the Hindu
literature. It pervades all Sanskrit discoursive works. The system of adhikarana has been
followed in Uttara Mimamsa or Vedanta”.[27] Thus, we see that the procedure
of adhikarana has universal application, and may be adopted for interpretation of laws,
contracts, etc.

2.2 Axioms of Interpretation

The objective of interpretation is to understand the meaning and intent behind a

provision of law. To aid the process of interpretation, Jaimini lays down certain elementary
principles / axioms:

1. साथ ता – sārthakyatā – “Every word and sentence must have some meaning and
purpose”.[28] Any interpretation which rendered a provision nugatory or otiose is
faulty, and suffers from अनाथ दोषः anārthakyadoṣaḥ.[29] These flows from the
“literal rule” of construction in modern jurisprudence.[30] Further, any interpretation
which would render any word / provision otiose will not be favoured.[31]

2. लाघव – lāghava – “Where one rule or proposition would suffice, more must not be
assumed”.[32]

3. अथक – arthaikatva (unity in meaning) – Consistency in interpretation of the same

word – “unless there are special reasons to do so, i.e., unless the context otherwise

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 requires, a word must be given the same meaning at all places in a text wherever it is
used.[33]

4. गुण धान – guṇapradhāna – When the subordinate / ancillary idea purports to

contradict / is in conflict with the principal, the ancillary should be interpreted in such
a way that the principal remains, or the ancillary should be disregarded altogether.[34]

5. सम – samañjasya – harmonious construction – “Contradiction between words and

sentences is not to be presumed where it is possible to reconcile them.”[35]The rule of
harmonious construction is well-established in modern statutory interpretation.

6. िवक – vikalpa – In cases of real contradiction, one of the options may be chosen.[36]

The aforementioned axioms may be applied in modern statutory interpretation too. A

few decisions post-independence have applied them for interpreting statutes (elaborated in
Section 3).

2.3 Hierarchical Principles of Interpretation

Not only does Mīmāṃsā give us precise tools for interpretation, but also lays down the
order of priority. The following Sutra by Jaimini makes this clear:

JaiminiIII, iii, 14
ुितिल वा करण ानसमा ानां समवाये पारदौब म् अथिव कषात् ।[37]
śrutiliṅgavākyaprakaraṇasthānasamākhyānāṃsamavāyepāradaurbalyamarthaviprakarṣāt ।
(“Among the rules, śruti(direct assertion), liṅga (indicative power), vākya (syntactical
connection), prakaraṇa (context), sthāna (place) and samākhyā (name), that which follows is
weaker than that which precedes, because it is more remote than the real object”.)[38]

As noted from the above Sutra of Jaimini, rules of interpretation are as follows:

1. Śruti (direct assertion) – “When a sentence is complete and explicit in sense and
grammar, no attempt should be made to strain or twist its meaning. Śruti refers to that
meaning which is understood on the mere hearing of the statement. (Śruti means
hearing)”.[39] This is the first, fundamental rule of Mimamsa and also the elementary
rule of modern jurisprudence. “This is (a) universal principle prevailing in all civilized
countries of the present day. It is called the literal principle”.[40]

2. Liṅga (indicative power) – “When a word or expression used in a provision has more
than one meaning, its correct meaning has to be determined by the context in which the
word has been used”.[41] Contextual interpretation is an established rule in modern
jurisprudence also.

3. Vākya (syntactical connection) – “When words and sentences are not connected in an
explicit or clear manner, they (the words) should be joined grammatically so as to make
a sensible proposition”.[42] Modern statutory interpretation also recognises that while

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 interpreting a statute, the ordinary sense of the words is to be adhered to, unless it leads
to absurdity. The objective behind Vākya (syntactical connection) is that “…the
defective grammar or composition of a sentence should not be allowed to defeat the
purpose (prayojanaorartha) of the provision.[43]

4. Prakaraṇa (context) – “…when a sentence or clause makes no complete sense by itself,

however clear its meaning and grammatical composition may be, the meaning of such
a sentence or clause should be ascertained by reading it with some other passages with
which it coalesces, having due regard to the context in which such a clause or sentence
is used”.[44]

The aforementioned principles “…form the science of interpretation”

[45] in Mīmāṃsā. The literal rule is the starting point of interpretation both in Mimamsa and
the modern system. However, as noted by K. L. Sarkar, the rules laid down by Rishi Jaimini and
his followers for the departure from the literal rule are “… perhaps clearer, more logical and
more distinctive than the rules discussed in our modern books. They lay down step by step how
a more rational principle is to be adopted one after the other, and how a wider departure from
the literal principle should be avoided when a narrower departure would suffice”.[46] The
sequence to be adopted while departing from the literal rule is definitely clearer
in Mīmāṃsā compared to modern statutory interpretation. Incorporating the sequence in
a Sutra form sets out a clear formula and ensures certainty and consistency in interpretation.

2.4 Obligatory and NON-Obligatory Rules

Mimamsa clearly enunciates rules which are obligatory and non-obligatory:

(i) Obligatory rules

a. Vidhis – injunctions / positive commands [47]
b. Nishedhas–prohibitions / negative commands [48]

(ii) Non-obligatory rules

a. Arthavadas – explanatory statements [49]; non-obligatory rules connected with Vidhis[50]
b. Namadheyas – nomenclature [51]; non-obligatory rules which are not connected with
any Vidhi [52]

Sacrificial formulae were referred to as Mantras, which sometimes acquired the

character of Vidhi.[53] The distinction between obligatory and non-obligatory rules has been
relied on in decisions dealing with validity of adoption etc. Whether a rule / provision is
mandatory or directory is an issue confronted by the Courts frequently in the context of
statutory interpretation.

2.5 Nyayas (Maxims)

Nyāya or maxim is “…one of the devices by which an experience secured from or a

conclusion reached in a particular case can be used to explain a similar situation in a brief and
telling manner”.[54] They are also “…based on robust common sense and worldly experience”

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and may be adopted for interpretation of statutes.[55] Hon’ble Rama Jois, J. opines that they
are of immense use like the Latin maxims which have been used in modern
jurisprudence.[56] While there are numerous Nyayas, a few which have been referred to in the
decisions of Courts and / or which are pertinent to the interpretation of statutes are listed below:

(i) कल ायः – kalañjanyāyaḥ used to indicate a prohibitory act [57], has been relied on in
recent cases involving statutory interpretation and is analogous to the modern rule that
“negative expressions are rarely directory” [58];

(ii) म दीिपका ायः – madhyadīpikānyāyaḥ[59] – “…a word can be shown to throw light on
the preceding as well as the succeeding clause”[60];

(iii) सामा िवशेष ायः – sāmānyaviśeṣanyāyaḥ – The special law prevails over the general
one. This Nyaya corresponds to the Latin maxim ‘Generalia specialibus non derogant’ in
modern statutory interpretation;

(iv) िढय गमपहरितः – rūḍhiryogamapaharatiḥ – Popular meaning prevails over the

etymological meaning. The “common parlance” test has been frequently used by the Courts,
especially in the interpretation of fiscal statutes.

3. Mīmāṃsā Principles – Application by Courts

Prior to independence, the Privy Council and the British Courts relied
on Mīmāṃsā principles for interpreting Hindu Law in cases pertaining to adoption, marriage,
succession etc. “After the codification of most of the personal law of Hindus, recourse
to Mimamsa principles has fallen in desuetude”.[61]

One of the celebrated cases which accurately applied the Mīmāṃsā principles to a case
of adoption in Hindu Law, was Beni Prasad v. Hardai Bibi and Ors.[62] (“Beni Prasad”),
decided by the High Court of Allahabad in 1892. The case concerned the validity of adoption
(having taken place in fact) of an only son under Hindu Law. Sir John Edge, J acknowledged
that the Court was faced with the difficulty of ascertaining the “…true and reasonable
construction to be put on certain texts of the sacred law of the Hindus, and upon certain
passages in the works of Hindu commentators…”[63] He further observed that the difficulty
was enhanced by the fact that the texts and passages were in Sanskrit.[64] On how the text of
Vasistha was to be construed, he opined that “…it must clearly be construed according to the
rules for the construction of the texts of the sacred books of the Hindu Law if authoritative
rules are on the subject exist. That rules for the construction of the sacred texts and law of the
Hindus do exist cannot be disputed, although those rules have been frequently overlooked or
not referred to by Judges or English text writers, probably because they are in Sanskrit and
have, so far as I am aware, not yet been translated. That they are rules of the highest authority
is obvious from the manner in which they have been referred to by Mr. Colebrooke”.[65]

The rule of Mīmāṃsā relied on by the counsel, and accepted by the Judge was that,
when a text is supported by assigning a reason, it is not to be deemed as “vidhi” (mandatory),

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but only as recommendatory (“artha-vada”). “When a text is treated as artha-vada, it follows
that it has no obligatory force whatsoever.”[66]

The Court in Beni Prasad has made extensive observations on the need for Sanskrit
scholarship to accurately interpret Hindu Law. While formulating the reasoning for the
decision, the Court has time and again relied upon the authority of eminent Sanskrit scholars
including lawyers well-versed in Sanskrit.[67] The Court also cautioned against relying on
“…the mistaken and misleading translations or unauthorised interpolations of English
translators…”[68]The same holds good for adapting Mimamsa principles to the modern
context as well.

Hon’ble B.N. Srikrishna, J. has lauded the judgment in Beni Prasad for the accurate
application of the Mīmāṃsā principles relating to the distinction
between Vidhi and Arthavada.[69]

Post-independence, a few judgments of the Supreme Court and High Courts (mostly
HC of Allahabad) have attempted to apply the Mīmāṃsā principles in the interpretation of
statutes.
The Mīmāṃsā rule that “the popular meaning overpowers the etymological meaning”
was referred to and applied by the Hon’ble Supreme Court of India, in the case of GUI-ATI
and Company v. The Commissioner of Sales Tax, U.P., Lucknow [70]. In this case, the Court
was deciding on whether the expressions “food” and “foodstuff” under the Government
Notification [71] in question, included “food colours” and “food essences” for assessing the
rate of Sales Tax to be imposed.[72]

The Apex Court noted that “(i)n the interpretation of fiscal statutes, the entries must
not prima facie be construed in their technical or scientific import but must be understood in
its ordinary sense”. [73] The Court observed that while there was no fixed test for classification
of a taxable commodity, the most commonly employed test was the “common parlance test” or
“popular sense meaning”. The Court concluded that “foodstuff would refer to anything with a
nutritive value which is consumed for growth or sustaining one’s life”.[74]

In the case of B. Premanand and Ors. v. Mohan Koikal and Ors [75], (“Premanand”),
the Apex Court made a reference to the Shrutiprinciple and the Garhapatya-NyayaofMīmāṃsā,
in the context of applying the literal rule of interpretation. The Court was concerned with the
interpretation of Rule 27(c) of the Kerala State and Subordinate Services Rules, 1959, for
determining the seniority inter se among candidates for a certain post. The Court opined that
as the language of Rule 27 (c) was clear and unambiguous, the same had to be followed.[76]

The Court made a reference to several case authorities, both Indian and foreign, in
applying the literal rule. In this context, Hon’ble Katju, J. also referred to
the Mīmāṃsā Principles and observed that there was “…no reason why we should not
use Mīmāṃsā Principles of Interpretation in appropriate occasions”.[77] He noted that, “In
Mimansa, the literal rule of interpretation is known as the ‘Shruti’ or ‘Abhida’ principle. This
is illustrated by the Garhapatyanyaya”.[78] While the Court has
discussed Garhapatyanyaya and the Linga principle, it is not very clear as to how these have

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been applied to the facts of the case, as the interpretation of the Rule in question was in
accordance with the principle of Shruti / plain meaning of the words.

The interpretation of the Proviso in Section 6 of the Land Acquisition Act, 1984 fell for
consideration in the case of Vijay Narayan Thatte and Ors. v. State of Maharashtra and
Ors.[79] (“Vijay Narayan”). The Proviso was couched in negative language and the Court
observed that it was a well settled rule of interpretation that “…when a Statute is couched in
negative language, it is ordinarily regarded as peremptory and mandatory in
nature”.[80] According to Crawford, “Prohibitive or negative words can rarely, if ever, be
directory”.[81]

Hon’ble Katju, J. examined the Proviso to Section 6 of the Land Acquisition Act, in
light of Principles, by referring to negative Vidhis. He observed that
the Mimamsakas distinguished between: (i) prohibitions against the whole world (pratishedha)
& (ii) those against particular persons (paryudasa) [82]. Further, pratishedhas were of two
kinds – (i) those which prohibited an act in all circumstances without any reference to the
manner / usage and (ii) those which only prohibited a particular mode of usage.[83] He also
pointed out that the system had a deeper discussion by classifying the injunctions into various
kinds.[84]Nishedha-vidhis were not only mandatory, but also had to be interpreted
comprehensively to mean that one had to “…abstain from the very idea of the act
prohibited…”[85]The Kalanjanyayah (the Kalanja Maxim)[86] was used to indicate
a Nishedha-Vidhi. Applying this maxim, any rule / provision of law “…couched in negative
language is prohibitory in nature and therefore such a rule must not be allowed to be violated
directly or circumvented indirectly”.[87]

The Court concluded that the Provision to Section 6 was “totally mandatory” and had
no exceptions.[88] As the language of the Proviso to Section 6 was clear, the provision had to
be construed literally.[89] The Court has lucidly applied the concept of Paryudasa to the
interpretation of the Proviso in this case.

In Surjit Singh’s case[90], the Apex Court departed from the literal rule while
interpreting Rule 443 of the Indian Telegraph Rules, which provided that in case of default of
payment of the dues in accordance with the Rules, the Telegraph Authority could disconnect
the service without notice to the subscriber.[91] The issue for consideration was whether the
telephone lines in the name of the husband could be disconnected because of non-payment of
dues in respect of the line in the name of his wife.[92]

The Court observed that in this case, the literal rule should not be adopted, rather, the
intention behind the rule – which was to ensure payment of dues promptly by the subscribers,
had to be considered. The Court adopted purposive construction [93] in upholding the action
taken by the authority in disconnecting the lines in the names of the husband.

The Learned Judge also relied on the Mīmāṃsā principles and adopted
the Lakshana (or Linga) rule, instead of Shruti / Abidha (literal rule), while giving a purposive
interpretation to Rule 443 of the Indian Telegraph Rules.[94] Referring to ‘Param Laghu
Manjusha’, the work of Sanskrit grammarian, Sri Nagesh Bhatt, the Hon’ble Judge observed

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that a word / phrase could have three meanings: (i) Abidha / literal meaning
(ii) Lakshana (indicative or suggestive meaning) and (iii) Vyanjana (figurative meaning).[95]

Hon’ble Katju, J. made a reference to the 5-fold principles of Shruti, Linga, Vakya,
Prakarana, Sthana and Sankhya and opined that Linga (or Lakshana) principle would be
applicable in this case.[96] He further relied on the decision of the Supreme Court in U.P.
Bhoodan Yagna Samiti v. Brij Kishore[97], in which the Court departed from the literal rule to
interpret ‘landless person’ as a ‘landless peasant’ and not a ‘landless businessman’ to interpret
a provision of the U.P. Bhoodan Act.[98] It is also interesting to note that Hon’bleKatju, J.
demonstrated in this case, as to how a provision in the US Constitution should be interpreted
according to Linga, and not Shruti, as interpreting it literally would not serve the purpose or
intent behind the provision.[99]

Similarly, in a case concerning the interpretation of an insurance policy, the Allahabad

Court did not favour a literal interpretation, rather, favoured a beneficial interpretation to enable
the policy holder to claim benefit under the policy.[100] In this case also, the Learned Judge
referred to Param Laghu Manjusha[101] and concluded that the indicative meaning (Lakshana)
had to be adopted.[102] While applying the Lakshana principle, the Court relied on the oft-
quoted sentence- काके ो दिध र ताम् (kākebhyodadhirakṣatām – protect the curd from crows),
and observed that literal interpretation (of protecting the curd only from crows, but not dogs,
cats etc.) would lead to absurdity.[103] However, it may be noted that Hon’ble B. N. Srikrishna,
J. does not favour applying the Lakshana principle to the interpretation of contractual terms
which were explicit and clear.[104]

In the case of Rajbir Singh Dalalv. Chaudhari Devi Lal University, Sirsa and
Ors.[105] Hon’ble Katju, J. referred to the principle of Adhyahara in the context of interpreting
the relevant UGC Regulations for the requisite academic qualifications for appointment to the
post of a Reader in a University. According to him, in Mīmāṃsā, the rule of “casus omissus”
is known as Adhyahara.[106] He opined that Mīmāṃsā principles were superior, as Maxwell’s
Principles did not go further into the sub-categories of casus omissus, whereas,
the Mīmāṃsāsystem lays down sub-categories under Adhyahara – anusanga, anukarsha,
vakyashesha etc. [107] However, it is pertinent to note that the decision in this case was not
based either oncasus omissus or Adhyahara.

The concepts of Adhyahara and Anusanga were also referred to by the Learned Judge
in the case of Mahabir Prasad Dwivedi[108] while deciding on the extension of principles of
natural justice to a provision of a statute, though the opportunity of being heard was explicitly
mentioned only in the first proviso (and not in the second one).The Learned Judge dealt with
the Anusanga principle and its sub-categorisations and applied the same to the proviso in
question, while extending the opportunity of being heard to the second proviso
also.[109] Commenting on this decision, Hon’ble B. N. Srikrishna, J. notes
that Adhyahara “…does not permit the random and arbitrary interpolation of words into
a shruti text. The concepts of anushanga, anukarsha, tadutkarsha and tadapakarsha have all
to be read and understood within the basic principles of Mimamsa”.[110] He further opined
that the opportunity for an explanation in the first proviso could not be read into the second

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proviso, as the purpose of both the provisos was different.[111] The same conclusion could be
achieved relying on Maxwell too, without recourse toMīmāṃsā.[112]

The Samanjasya principle was relied on by the Apex Court in Gujarat Urja Vikash
Nigam Ltd. v. Essar Power Ltd. [113] while dealing with apparent inconsistency in the
Arbitration and Conciliation Act, 1996 and the Electricity Act, 2003. The issue to be decided
by the Court was whether one law would prevail over the other. In the course of the arguments,
a reference was made to the rule of Generalia Specialibus non derogant, a well-established
rule in contemporary jurisprudence, according to which, the special legislation would prevail
over the general one.[114]

Hon’ble Katju, J. relied on the Mīmāṃsā system in dealing with conflicts

/inconsistencies, and observed that there were three ways of dealing with conflicts, discussed
by Shabar Swami in his commentary on Sutra 14, Chapter III, Book III of Jaimini[115] (i)
the Samanjasya principle harmonious construction[116] (ii) Vikalpa – when the conflict could
not be reconciled, “….whichever law is more in consonance with reason and justice should be
preferred”[117] (iii) Badha – one text overrides the other because of greater
force.[118] The Gunapradhana axiom was also applied to the provisions in the Electricity Act
to reconcile the apparent conflict.[119]

Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [120] (“Ispat Industries”)

concerned the interpretation of Rules under the parent statute. The Court relied
on Gunapradhanaaxiom, according to which “…(i)f a word or sentence purporting to express
a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or
must be disregarded altogether”.[121] Applying Gunapradhana axiom, Hon’ble Katju, J.
concluded that the Rule in question, being subservient to the legislation, had to be interpreted
in consonance with the relevant provision of the Customs Act.[122]

In Amit Plastic Industry v. Divisional Level Committee Meerut and Ors[123] (“Amit
Plastic”) the Allahabad High Court applied the Gunapradhana axiom[124] and Sphadi-
nyaya[125]while interpreting a provision of the U.P. Sales Tax Act. Commenting on the
application of Gunapradhana, Hon’ble B. N. Srikrishna, J. opines that the “Pradhana” and
“Guna” cannot be “arbitrarily decided by one’s ipse dixit”.[126] He further opines that even
assuming the Act to be similar to the Shruti text, one cannot assume the Pradhana when the
Act does not declare it.[127]

In U.P. Agro Industrial Corporation Ltd. v. Kisan Upbhokta Parishad and Ors.[128],
the short question which arose for consideration was whether Animal Driven Vehicles
(“ADVs”) were “agricultural implements”? The Court observed that it was a well-settled rule
of interpretation that the word should be construed in its common parlance, unless the statute /
order defined it with a specific meaning.[129] Hon’ble Katju, J. relied on
the Mīmāṃsā principle that “the popular meaning overpowers the etymological
meaning”.[130] While the word “Pankaja” literally meant “born in mud” and could refer to
several things, the popular meaning was “lotus”.[131] Applying the common parlance test, the
Court held that ADVs could not be ‘implements’, as implements were commonly understood
to mean tools.[132]

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 The issue which fell for consideration in Craft Interiors[133] was whether “…storage
cabinets, kitchen counters, running counters, large reception / conference tables etc. (were)
excisable as furniture”?[134] On perusal of the definitions in various dictionaries, the Court
observed that “…ordinarily ‘furniture’ refers to movable items such as desks, tables, chairs,
required for use or ornamentation in a house or office”.[135] The Court held that items which
were ordinarily immoveable and which could not be removed without cannibalizing were not
‘furniture’.[136] In this context, Hon’ble Katju, J. also referred to the Mīmāṃsā rules
according to which the popular meaning is preferred to the etymological meaning.[137]

In Yogendra Nath[138], the issue which fell for consideration was whether “…the
assessment on the deities through shebaits under the provisions of the Indian Income Tax Act
was in accordance with law?”[139] While deciding on the question of the juristic personality
of the idol, the Court referred to Sabara Swami’s Bhashya on PurvaMimamsa.[140] The
Supreme Court held that “…the Hindu idol is a juristic entity capable of holding property and
of being taxed through its shebaits who are entrusted with the possession and management of
its property”.[141]

In one of the recent judgments [142], the High Court of Gujarat relied on “purposive
interpretation” to construe the expression “calendar year”, to avoid absurdity. Observing that
both Mīmāṃsā and Maxwell’s Principles recognise “purposive interpretation”, the Court
opined that while “…the Maxwell method was search bound”, the Mīmāṃsā rules were
“solution-oriented”.[143] The Court however did not elaborate on this distinction. The Court
also applied the “Gunapradhana” axiom relying on the decisions of the Apex Court in Ispat
Industries and Gujarat Urja Vikas Nigam Limited [144], and the “Sarthakeya” principle.[145]
According to the Court “Sarthakeya” signified that “…meaningfulness has to be ensured in
applying any law or rule. Thereby, the purpose is made to prevail over the outward expression
which becomes subordinate”.[146]

As seen from the decisions above, there have been attempts by the Courts in recent
times to adopt the Mīmāṃsā principles to statutory interpretation. However, application
of Mīmāṃsā to modern statutory interpretation, is not without challenges, as detailed below.

4. Contemporary Relevance & Challenges

The Mīmāṃsā system of interpretation with its procedure of Adhikarana, principles,

axioms and Nyayas (maxims) is very detailed and systematic. The Sutras clearly lay down the
procedure, rules and hierarchy to be followed in interpretation. Thus, adherence to
the Mīmāṃsā system will promote certainty, efficiency and predictability in interpretation. As
noted by many scholars and jurists like Coolebrooke, K. L. Sarkar, Rama Jois, J., and Katju,
J., the Mīmāṃsā principles are no doubt applicable to the interpretation of laws.

In cases decided by the Privy Council and the British Courts (in Beni Prasad for
instance), the primary rules of interpretation relied on, for interpreting the texts of Hindu Law,
were Mīmāṃsā principles. The Hon’ble judges and the counsels engaged in a detailed
discussion on the accurate interpretation of the Sanskrit texts.

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 An analysis of the decisions (albeit few in number post-independence) which have
relied on Mīmāṃsā principles shows that the Courts have not applied these principles
consistently. In the recent cases, Mīmāṃsā principles have been referred to, in addition to the
rules of modern statutory interpretation. In other words, reliance on Mīmāṃsā, in many recent
cases, seems ancillary, and the same outcome would have been achieved by solely relying on
rules of modern statutory interpretation as well. Of course, this is also due to the fact that while
the British Courts were dealing with Sanskrit texts on Hindu Law, most of the recent cases
pertain to the interpretation of modern statutes in English. In a few decisions, while the Court
has explained the Mīmāṃsā rules, the application of the same to the facts of the case is unclear.

Hon’ble B. N. Srikrishna, J. has discussed the challenges faced in

applying Mīmāṃsā principles to modern statutory interpretation:

i. Accurate application of Mīmāṃsā requires precise knowledge of Sanskrit and

appreciation of the Sutra [147] An “…attempt to understand the Mīmāṃsā
Sutras without a good working knowledge of Sanskrit would be counter-
productive”.[148] Further, many technical Sanskrit terms do not have accurate
translations / counterparts in English. This adds to the challenges of applying
Sanskrit Sutras while interpreting English statutes.

ii. Generations of lawyers have internalised jurisprudential parlance in English over

centuries, substituting the same with Mīmāṃsā“…may be attempted only after at least
two generations of lawyers are well-trained in the discipline of Mimamsa”.[149]

iii. Many terms in Mīmāṃsā have acquired conventional meanings. Lack of familiarity
with such technical meanings would impede the accurate application of the principles,
resulting in chaos.[150]

iv. If the Mīmāṃsā principles are introduced in the higher judiciary – the Supreme Court
and the High Courts, it would be hard for the subordinate courts to follow the principles
laid down by the higher courts.[151]

v. The “…Nyayas and maxims of Mimamsaneed to be formally reduced into universally

identified rules” for application by lawyers and judges.[152]

While the aforementioned concerns are well-founded, the application

of Mīmāṃsā rules in decisions like Beni Prasad inter alia by British judges, goes to show that
it is very much possible to appreciate the nuances of Mīmāṃsā, with the help of Sanskrit
scholars.There is a need for engagement with Sanskrit scholars and Mīmāṃsā experts to assist
the lawyers and the judiciary to appreciate and accurately apply the principles of Mīmāṃsā.

In many recent decisions, one finds that the Learned Judge suo motu applied the
principles of Mīmāṃsā. If the lawyers are trained in this system, they could assist the Court in
better applying the principles. Law students could be introduced to these principles and the
basics of Sanskrit language in law schools, as suggested by Hon’ble B. N. Srikrishna, J.[153]In
this regard, it may be noted that while law students don’t necessarily study Latin, Latin maxims

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are used very frequently in law treatises, while addressing arguments, and in Court decisions.
The familiarity with Latin maxims has led to their application in the legal system.

Introduction of Mīmāṃsā, along with modern statutory interpretation in legal studies

would be a step forward in familiarising law students, lawyers and judges with the indigenous
system of India, which could be applied in cases where it is most suitable.

CONCLUSION

The Mīmāṃsā system of interpretation has immense intrinsic and instrumental value –
intrinsic value as a Darshana / school of philosophy and instrumental value as an effective,
methodical tool of interpretation, relevant for interpreting modern statutes and contracts as
well. As noted by K. L. Sarkar, “…the Mimamsa rules have never been a dead letter. They were
living principles…applicable to the construction of any system of law, ancient or modern, and
can be extended to the interpretation of contracts and deeds…”[154]Mīmāṃsā principles have
to be adapted to the modern legal system, with the combined efforts of connoisseurs of law,
Sanskrit and Mīmāṃsā.

Mīmāṃsā and the modern principles of statutory interpretation are not mutually
exclusive. In fact, they are complementary, and their application in appropriate instances,
would lead to better evolution of laws and ensure greater certainty in interpretation. Consistent
and accurate application of Mīmāṃsā principles by the higher judiciary, will lead to the
development of an authoritative body of precedents, thereby contributing to the development
of jurisprudence of statutory interpretation.

ENDNOTES

*Brunda Karanam is a lawyer qualified to practise Law in India. She holds a B.A., LL.B.
(Hons) from the National Law School of India University, Bengaluru. She has also completed
the BCL (Bachelor of Civil Law) programme from the University of Oxford, UK, and LL.M.
(Masters in Law) from the University of Pennsylvania Law School, USA.

[1] Sarkar, K. L. (2013). K. L. Sarkar’s Mimansa Rules of Interpretation, Tagore Law Lectures
– 1905 (M. Katju J, Ed.; 4th ed.). Thomson Reuters. (Original work published 1909).(“Sarkar,
1909/2013”). P. 33.
[2] M Rama Jois. (2004). Legal and constitutional history of India: ancient legal, judicial and
constitutional system. Universal Law Pub. (“M Rama Jois, 2004”).P. 434.
[3] Apte, V. S. (2010). The Practical Sanskrit English Dictionary (4th ed.). Motilal
Banarsidass.(“Apte, 2010”) P. 762
[4] Uttaramīmāṃsā or Jñānamīmāṃsā also known as Vedānta pertains to the study of
the Upaniṣads and mostly deals with the “nature of the Brahman…” Apte, 2010. P. 762.
[5] Apte, 2010. P. 762.
[6] M Rama Jois, 2004. PP. 434-435.
[7] Srikrishna J, B.N. (2004). Maxwell v. Mimamsa. Student Bar Review, 16, 1-14.
(“Srikrishna J, B.N. 2004”)P. 4.
[8] M Rama Jois, 2004. P. 434.

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[9] Kishori Lal Sarkar. (2018 Classic Reprint Series. Forgotten Books). An introductory lecture
on the subject of the rules of interpretation in Hindu law, with special reference to the Mimânsâ
aphorisms as applied to Hindu law. Calcutta, S.L. Sarkar. (Original work published
1903).(“Kishori Lal Sarkar, 1903/2018”) P. 2.
[10] M Rama Jois, 2004. P. 436.
[11] Sarkar, 1909/2013. P. 38 cited from Colebrooke’s Miscellaneous Essays, Vol. 1, P. 342.
[12] Kishori Lal Sarkar, 1903/2018. PP. 23-31.
[13] “Austin defines law as the command which obliges a person to a course of conduct”;
according to Jaimini, “what is to be done as characterised by a command is Dharma”
(चोदनाल णोऽथ धमः । – codanālakṣaṇo’rthodharmaḥ– Jamini I. i. 2). In both the definitions
of Jaimini and Austin, “(L)aw and legal duty are counterparts of each other”.Kishori Lal
Sarkar, 1903/2018. PP. 23-24.
[14] Kishori Lal Sarkar, 1903/2018. P. 27.
[15] Kishori Lal Sarkar, 1903/2018. P. 28.
[16] Kishori Lal Sarkar, 1903/2018. P. 30.
[17] Kishori Lal Sarkar, 1903/2018. P.30.
[18] Srikrishna J, B.N. 2004. P. 4.
[19] MuthukrishnaNaicken v. Ramachandra Naicken and Ors., (1919) 37 MLJ 489.
[20] Beni Prasad v. Hardai Bibi and Ors., (1892) ILR 14 All 67;BalusuGurulingaswami and
Ors. v. BalusuRamalakshmamma and Ors., (1899) ILR 21 460; Bhagwan Singh and Ors.
v. Bhagwan Singh, (1895) ILR 17 All 294.
[21] In SagiliPedda Rami Reddi and Ors. v. NarreddiGangireddi, AIR 1925 Mad 807, Mutha
Venkatasubba Rao J. made a reference to “Kramas” – Shruti-krama,
Arthakrama and Padakrama in Mimamsa Sutras while deciding the order of succession
(Paras. 52-54). In Narayan PundlikValanjuv. Lakshman DajiSirsekar, AIR 1927 Bom 456, the
principle of Atidesha was applied by the Court in deciding on the succession to the property of
a prostitute.
[22] Madhavrao Raghavendra and Ors. v. Raghavendrarao and Ors., AIR 1946 Bom 377.
[23] As remarked by Hon’ble M Katju, J., “It is deeply regrettable that in our law courts today
these principles are not cited. Today, our so-called educated people are largely ignorant about
the great intellectual achievements of our ancestors, and the intellectual treasury which they
have bequeathed to us. The Mimansa Rules of Interpretation are one of these great
achievements, but regrettably they are hardly ever used in our law courts. It may be mentioned
that it is not stated anywhere in the Constitution of India that only Maxwell’s Principles of
Interpretation can be utilised. We can utilise any system of interpretation which can help to
resolve a difficulty. Principles of interpretation are not principles of law but are only a
methodology for explaining the meaning of words used in a text. There is no reason why we
should not use Mimansa Principles of Interpretation in appropriate occasions” – see B.
Premanand and Ors. v. Mohan Koikal and Ors. AIR 2011 SC 1925.Paras. 34, 35.
[24] M Rama Jois, 2004. P. 436.
[25] Sarkar, 1909/2013. P. 67.
[26] Sarkar, 1909/2013. P. 67.
[27] Sarkar, 1909/2013. P. 67.
[28] Sarkar, 1909/2013. P.71.
[29] M Rama Jois, 2004. P. 448.
[30] M Rama Jois, 2004. P. 448.

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[31] M Rama Jois, 2004. P. 448.
[32] Sarkar, 1909/2013. P. 71.
[33] M Rama Jois, 2004. P. 449, Sarkar, 1909/2013. P. 71.
[34] Sarkar, 1909/2013. P. 71.
[35] Sarkar, 1909/2013. P. 71.
[36] Sarkar, 1909/2013. P. 71.
[37] Sarkar, 1909/2013. P. 72;M Rama Jois, 2004. P. 460.
[38] M Rama Jois, 2004. P.461.
[39] M Rama Jois, 2004. P. 453.
[40] Sarkar, 1909/2013. P. 72.
[41] M Rama Jois, 2004. P. 457.
[42] M Rama Jois, 2004. P. 458.
[43] M Rama Jois, 2004. P. 459.
[44] M Rama Jois, 2004. P. 460.
[45] Sarkar, 1909/2013. P. 72.
[46] Sarkar, 1909/2013. P. 73.
[47] M Rama Jois, 2004. P. 465;Sarkar, 1909/2013. P.127.
[48] M Rama Jois, 2004. P. 465; Sarkar, 1909/2013. P.127.
[49] Sarkar, 1909/2013. P.127.
[50] M Rama Jois, 2004. P. 465.
[51] Sarkar, 1909/2013. P.127.
[52] M Rama Jois, 2004. P. 465.
[53] Sarkar, 1909/2013. PP.127, 128.
[54] M Rama Jois, 2004. P. 469.
[55] Srikrishna J, B.N. 2004. P.12.
[56] M Rama Jois, 2004. P.469.
[57] This Nyaya flows from a Nishedhaनकल ंभ येत् (nakalañjaṃbhakṣayet);M Rama Jois,
2004. P. 472.
[58] M Rama Jois, 2004. P. 472.
[59] This Nyaya literally means “lamp in the centre”. M Rama Jois, 2004. P. 472.
[60] M Rama Jois, 2004. P. 472.
[61] Srikrishna J, B.N. 2004. P. 4.
[62] (1892) ILR 14 All 67.
[63] Beni Prasad.Para. 3.
[64] Beni Prasad.Para. 3.
[65] Beni Prasad.Para. 10.
[66] Beni Prasad. Para. 12.
[67] Beni Prasad. Para.87.
[68] Beni Prasad. Para.33.
[69] Srikrishna J, B.N. 2004. P. 6.
[70] (2014) 14 SCC 286 (“GUI-ATI and Company”).
[71] The Entry in question read thus: “56. Milk powder, condensed milk, baby milk, baby food
and all other foodstuffs or products, whether used as such or after mixing them with any other
foodstuff or beverage, when sold in sealed or tinned containers.” GUI-ATI and Company.Para
3.
[72] GUI-ATI and Company.Para. 1.

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[73] GUI-ATI and Company.Para. 12.
[74] GUI-ATI and Company.Para. 15.
[75] AIR 2011 SC 1925.
[76] Premanand.Para. 14.
[77] Premanand.Para. 35.
[78] The Court went on to state thus: “…There is the vedic verse:
“Aindryagarhapatyamupatishthate”, which means “By the Mantra addressed to Indra establish
the household fire.” This verse can possibly have several meanings viz. (1) worship Indra (2)
worship Garhapatya (the household fire) (3) worship both, or (4) worship either”. “However,
since the word ‘Garhapatyam’ is in the objective case, the verse has only one meaning, that is,
‘worship Garhapatya’. The word ‘Aindrya’ means ‘by Indra’, and hence the verse means that
by verses dedicated to Indra one should worship Garhapatya. The word ‘Aindrya’ in this verse
is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words
‘GarhapatyamUpatishthate’ are the Shruti. According to the Mimamsa principles, the Shruti
(literal meaning) will prevail over the Linga (suggestive power).” Premanand. Paras 36-37.
[79] (2009) 9 SCC 92.
[80] Vijay Narayan.Para. 5.
[81] Vijay Narayan.Para. 5.
[82] “Where the leading clause of a passage contains a general direction for the performance
of a certain act and there is a prohibition of it under certain circumstance, the prohibition is to
be taken as a legitimate exception or proviso (Paryudasa). Sabara discusses this principle and
holds that if one provision conflicts with another in all respects, then there would be the option
to accept one or the other (Vikalpa), but if a provision only excepts a particular situation out of
a general rule, i.e., permits contravention of the rule in a given situation, such a provision must
be treated as a Paryudasa, applicable to the situation specified therein”. M Rama Jois, 2004. P.
469.
[83] “For example, the prohibitory clause ‘Do not eat fermented (stale) food
(nakalanjambhakshayet) is a Pratishedha; while the prohibition ‘those who have taken
the Prajapati vow must not see the rising sun’ is a Paryudasa. In the second
place, Pratishedhas are divided practically into two sub-clauses viz. those which prohibit a
thing without any reference to the manner in which it may be used, and those which prohibit it
only as regards a particular mode of using. For instance, ‘Do not eat fermented food’ prohibits
the use of it under all circumstances, while ‘Do not use the Sorasi vessel at dead of night’
forbids the use of the vessel only at the dead of night”. Vijay Narayan. Para.10.
[84] “These are the four classes of negative clauses. The first class, of which
the Kalanja (fermented food) clause is an example, may well be called a condemnatory
prohibition. The second class consists also of absolute prohibitions of things under certain
circumstances, as in the case of the Sorasi vessel. The third class consists of prohibitions in
relation to persons in a given situation, as in the case of the Prajapati vow. The fourth class
restricts the scope of action of persons engaged in fulfilling an injunction, as regards the time,
place or manner of carrying out the substantive element of the injunction. Thus we see that in
the Mimansa system as regards negative injunctions (such as the one contained in the proviso
to Section 6 of Land Acquisition Act) there is a much deeper discussion on the subject than that
done by Western Jurists. The Western writers on the subject of interpretation (like Maxwell,
Craies, etc.) only say that ordinarily negative words are mandatory, but there is no deeper

317
discussion on the subject, no classification of the kinds of negative injunctions and their
effects”. Vijay Narayan. Paras. 11,12.
[85] Vijay Narayan. Para. 16.
[86] In Ganpatrao and Ors. v. State of Maharashtra and Ors., 2018 (1) CCC 157, the High
Court of Bombay had to interpret Section 9 (1-C) of the Transplantation of Human Organs and
Tissues Act, 1994, which prohibited the removal of organs or tissues from a mentally
challenged person before his death. The Court relied on the decision of the Supreme Court
in Vijay Narayan.Applying the Kalanja principle, the Court held that Section 9(1-C) was a
prohibition against the world at large.Further, as the language of the statute was plain and clear,
literal rule had to be adopted.Ganpatrao. Para. 16.
[87] M Rama Jois, 2004. P. 472.
[88] Vijay Narayan. Para. 17.
[89] Vijay Narayan. Para. 19.
[90] Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226.
[91] “443. Default of payment — If, on or before the due date, the rent or other charges in
respect of the telephone service provided are not paid by the subscriber in accordance with
these rules, or bills for charges in respect of calls of phonograms or other dues from the
subscriber are not duly paid by him, any telephone or telephones or any telex service rented by
him, may be disconnected without notice…”. Rule 443, Indian Telegraph Rules”.Surjit Singh.
Para. 7.
[92] Surjit Singh. Para. 8.
[93] According to Francis Bennion, “A purposive construction of an enactment is one which
gives effect to the legislative purpose by- (a) following the literal meaning of the enactment
where that meaning is in accordance with the legislative purpose (in this Code called a
purposive-and-literal construction), or (b) applying a strained meaning where the literal
meaning is not in accordance with the legislative purpose (in the Code called a purposive and
strained construction)”.[93] – Hindustan Lever Ltd v. Ashok Vishnu Kate and Ors, 1996 ILLJ
899 SC as cited in Surjit Singh. Para. 25.
[94] Surjit Singh.Para. 28.
[95] “Usually the literal meaning is followed, but sometimes, the suggestive or figurative
meanings are adopted. As regards the suggestive meaning (Lakshana), the oft-quoted example
is ‘GangayamGoshah’, i.e, “I live on the Ganges”. This sentence cannot be literally interpreted
because no one can live on the surface of the Ganges River. Hence, it has to be interpreted to
mean “I live on the bank of the Ganga River”. As regards the third meaning Vyanjana, the oft-
quoted example is ‘GatoAstamarka’ which means: “the sun has set”. Here the real meaning has
in fact nothing to do with the sun or its setting, but it really means “light the lamp” or “let us
go home” (because the sun has set)”. Surjit Singh.Para 27.
[96] Surjit Singh. Paras. 38,39.
[97] AIR 1988 SC 2239.
[98] Surjit Singh. Paras. 41,42.
[99Surjit Singh. Paras. 53-56.
[100] Udai Shanker Singh v. Branch Manager, L.I.C. and Ors., 1998 (33) ALR 302 (“Udai
Shanker Singh”).
[101] Udai Shanker Singh. Para. 12.
[102] Udai Shanker Singh. Para. 13.
[103] Udai Shanker Singh.Para. 13.

318
[104] Srikrishna J, B.N. 2004. P.9.
[105] (2008) 9 SCC 284 (“Rajbir Singh”).
[106] Rajbir Singh.Para. 21.
[107] Rajbir Singh.Para. 21.
[108] Mahabir Prasad Dwivedi v. State of Uttar Pradesh and Ors., AIR 1992 All 351
(“Mahabir Prasad”).
[109] “The anusanga principle (or elliptical extension) states that an expression occurring in
one clause is often meant also for a neighbouring clause, and it is only for economy that it is
only mentioned in the former (see Jaimini 2,2,16). The anusanga principle has a further sub-
categorisation. If a clause which occurs in a subsequent sentence is to be, read into a previous
sentence it is a case of Tadapakarsha, but when it is vice versa it is case of Tadutkarsha, Jaimini
deprecates Tadapakarsha (i.e. transference backwards) and permits it only in exceptional cases.
However, there is no deprecation of Tadutakarsha. Since in the present case relating to the
second proviso to S. 7A(1) of the U.P. Town Areas Act we are concerned with Tadutkarsha
such transference can be readily accepted”. Mahabir Prasad. Para. 33.
[110] Srikrishna J, B.N. 2004. P. 12.
[111] Srikrishna J, B.N. 2004. P. 12.
[112] Srikrishna J, B.N. 2004. P. 12.
[113] (2008) 4 SCC 755 (“Gujarat Urja”).
[114] Gujarat Urja.Para. 16.
[115] Gujarat Urja.Para. 39.
[116] Gujarat Urja. Paras. 39, 40.
[117] Gujarat Urja. Para. 41.
[118] Gujarat Urja.Paras. 41-43.
[119] Gujarat Urja.Para. 48.
[120] (2006) 12 SCC 583.
[121] IspatIndustries.Para. 17.
[122] Ispat Industries. Para. 19.
[123] 1994 (68) FLR 533.
[124] Amit Plastic. Paras. 13-23.
[125] Amit Plastic. Paras. 24-26.
[126] Srikrishna J, B.N. 2004. P. 11.
[127] Srikrishna J, B.N. 2004. P. 11.
[128] (2007) 13 SCC 246 (“UPAICLtd.”).
[129] UPAIC Ltd. Para. 11.
[130] UPAIC Ltd. Para. 13.
[131] UPAIC Ltd. Para. 14.
[132] UPAIC Ltd. Para. 16.
[133] Craft Interiors Pvt. Ltd. v. Commissioner of Central Excise, Bangalore and Ors., (2006)
12 SCC 250 (“Craft Interiors”).
[134] Craft Interiors. Para. 5.
[135] Craft Interiors. Para. 6.
[136] Craft Interiors. Para. 7.
[137] Craft Interiors. Para. 8.
[138] Yogendra Nath Naskar v. Commissioner of Income Tax, Calcutta, (1969) 1 SCC 555
(“Yogendra Nath”).

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[139] Yogendra Nath. Para. 2.
[140] Yogendra Nath. Para. 5.
[141] Yogendra Nath. Para 7.
[142] AmitkumarDineshchandraRavalv.Managing Director, Madhya Gujarat Vij Company
Ltd., MANU/GJ/0272/2022 (“Amitkumar”).
[143] Amitkumar. Paras. 5,6.
[144] Amitkumar. Para. 6.
[145] Amitkumar. Para. 6.3.
[146] Amitkumar. Para. 6.3.
[147] Srikrishna J, B.N. 2004. P.13.
[148] Srikrishna J, B.N. 2004. P.13.
[149] Srikrishna J, B.N. 2004. P.14.
[150] Srikrishna J, B.N. 2004. P.13.
[151] Srikrishna J, B.N. 2004. P.14.
[152] Srikrishna J, B.N. 2004. P.14.
[153] Srikrishna J, B.N. 2004. P.14.
[154] Kishori Lal Sarkar, 1903/2018. P. 19.

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 THEORIES OF NATURE OF REALITY: Materialism of Charvaka, Anekantavada of
Jainism and Non-dual Nature of Reality in Advaita

-Dr. Mohan Parasain

Joint Director, House of the People,
Parliament of India.

This course content covers three diverse theories of reality in Indian tradition:
materialism of Charvaka, theory of many-sidedness of truth in Jainism and philosophy
of non-duality in Advaita. Charvaka materialism is studied in terms of Scepticism and
Evidence-based reasoning, the concept of Anekantavada is studied in terms of the
impact of multiple perspectives on legal interpretation and decision-making, and
finally, Advaita theory of non-duality is discussed in terms of interconnectedness of all
beings. This course content is primarily designed for Jurisprudence-II paper of LLB
Courses. It is intended to serve the purpose of introducing law students to diverse
Indian Philosophical approaches to the nature of reality and the impact of these
approaches in the evolution of Indian philosophy of law.

I. GENERAL INTRODUCTION TO INDIAN METAPHYSICS

The nature of reality, being or existence is a subject-matter of metaphysics 1. The Indian

knowledge tradition, spanning millennia, offers a rich tapestry of philosophical and spiritual
perspectives on the nature of reality. These various perspectives have enriched human
understanding of the universe, the self, and the relationship between them, providing valuable
insights for individuals seeking to navigate the complexities of existence. When the materialist
Charvaka says, “matter is the only reality”, he is offering a metaphysics which is opposed to the
theory of reality in Upanishads and Vedantic literature, which say “all this is Atman”
(Chandogya) or “the ultimate reality is known and realised within us as the Self”
(Brahmasutra). Further, when Jaina says that there are multiple perspectives to reality, they are
offering metaphysics, which is substantially different from both the Charvaka and Vedanta. In
these diverse views, from the early materialism to the profound concept of non-duality, Indian
thinkers have explored the universe’s essence, the self, and the relationship between them. The
logical realism and pluralism of Nyaya, atomic realism of Vaisesika, evolutionary dualism of
non-theistic Samkhya, meditative dualism of theistic Yoga, linguistic, interpretative and realistic
pluralism of Mimamsa, and Absolutism and monism of Vedanta offer too many diverse theories
of reality even within the believers on the authority of Vedas (Astika Darshan). It is because the

1
Metaphysics is a branch of philosophy that explores the fundamental nature of reality. It asks big questions
about the universe, existence, and our place in it. Metaphysics uses logic and reasoning to explore the questions
on space, time, causality, consciousness etc, and often delves into abstract concepts and thought experiments.
It's a field that encourages deep thinking about the world around us and our place in it.

330
ancient Indian minds were motivated to their philosophical speculations by their earnest sense of
wonder. This earliest wonder and critical approach is reflected by the oldest available text Rig
Veda in (Nasadiya-Sukta X. i.), which expresses a deep doubt as to whether the world comes
from being (Sat) or non-being (Asat). The same Rig vedic temperament enables the growth of all
shades of metaphysical doctrines in India from the scepticism of materialistic doctrines to the
idealistic interpretation of the world.

These conceptions of reality run in the subterranean sphere of Indian life-view and the
socio-political thoughts developed in the Indian soil. As Indian thought is as variegated as the
socio-cultural lives flourished in its linguistic, cultural and geographical diversity across the sub-
continent, the tendency to synthesise the Indian systems of thought as different aspects of one
unified point of view would be erroneous. It would not only undermine the fact that each system
of thought has maintained its identity continuously for centuries but it would also undermine the
rich and vigorous argumentative tradition and public debates amongst the competing systems
which enriched their philosophical rigour. However, these philosophical and theoretical
differences apart, there is an unbelievable uniformity in the domain of belief and faith. The unity
of spirit in the diversity of ritualistic and religious practices and differences in philosophical
speculations is the most surprising element in the Indian way of life. The philosophical theories
of suffering, ultimate freedom, non-attachment, the unreality of the apparent and of moral
requirement of intellectual attainments have produced convictions and beliefs which have not
only altered the outlook of their believers but have given a different turn to their style of living
(Saksena, 36).

Further, the philosophical views of India have permeated the entire population irrespective
of their intellectual calibre, whereas in other civilisations, philosophical views are circulated
amongst intellectuals alone. It is because these truths are rooted in the total experience of man,
the whole of being and not based on any single sensory, rational or intuitive part of his being.
The modern Western analytical and rational mind tends to break up the unity of man into
separate and autonomous compartments of reason, faith, emotions and feelings and thereby miss
the entire forest ecosystem in their attempt to analyse the tree, river or the mountain as if they
exist independent of each other. The unitary and integrated vision of man, life and world is the
single most distinguishing feature of the Indian mind. Though there are divergences in certain
details or technical terms, the unity of sadhana in control of passions, non-injury to life-forms
and check on all desires for pleasure serve as a common ground derived from the Yogic
philosophy (Dasgupta, Vol. I. 77). Further, this vision has served as the foundation of their
religious beliefs. This uniformity in Bharatiya beliefs and Bharatiya view of life, however, often
confuses an external observer and tends to gloss the philosophical differences which become
evident only in a deeper inquiry into the various literatures developed by these schools of
thought. Therefore, in order to understand India and its people, it is important to understand the
basic philosophies of India because the intimacy of philosophy and life in India is so
fundamental to the whole Indian point of view (Moore, 2). This understanding broadens the

331
horizon of philosophers and jurists and enlarges the scope of their thinking. The plethora of ideas
that Indian tradition offers, warrants intense and comprehensive study not only because of its
diversity but also because it is a tight-rope walk between “truths and half-truths, facts and fancy,
understanding and misunderstanding, extremes and exaggeration, admiration and ridicule,
devotion and what seems sometimes malicious distortions” (Moore, 1). It is particularly a
difficult task for the modern Indian mind, which is trained in Western epistemologies and its
‘thought world’ and grown up in a political setting of polarised convictions, to strike a balance
between admiration and neglect and study the subject-matter with a critical conscience needed
for a philosophical approach.

The various approaches to reality within Indian philosophy have significantly influenced
the development of Indian legal thought. It is important to note that the impact of Indian
philosophies on law is complex and multifaceted. The concepts of social, political and legal
philosophy, therefore, need combination, modification and reconstruction for their final
application. Nevertheless, the methods and ways of the proposed reconstruction may also be
found in the Indian epistemological tradition itself.

Is There a Metaphysical Foundation of the Principles of Morals and Thereby That of Law?

Western philosophy has a width and breadth thanks to the Republic of Plato, which was
mainly interested in the discovery of the true nature of man in society in order to build a stable
society upon earth. Its intent was to discover the eternal laws of man and society in order to
remold them accordingly. One of the most prominent and influential philosophers of modern
philosophy, Kant inquires into the metaphysical foundation of the principles of morals and finds
it in the rational nature of man. Practical reason leads him to the principles of universalizability,
treating human beings as end-in-itself and the third formulation of his famous categorical
imperative provides the basis for his political philosophy, an international politics of peace based
on republicanism and liberal democracy. 2 Many commentators opine that such a thorough
metaphysics of morality is not to be found in Indian philosophy (Raju, 56). It is so because of
many reasons, and the foremost of them is that the Dharmashastras (Manu and Yajnavalkya) did
not push their inquiries into their metaphysical foundations nor did the metaphysicians develop
the social implications of their thought. The principal direction of Indian thought has never been
to social and material sciences, but to a deeper level of being. The Indian treatise on laws could
also have developed logic and epistemology of its own, just like the Indian medical practitioners
did. Charakasamhita talks about the rules that were to be observed in actual arguments and used

2
Kant argued that moral principles shouldn't be based on experience or observation, as those can be subjective
and change over time. Instead, he believed morality should be grounded in reason and universal principles that
apply to everyone, everywhere. Metaphysics of morals provides this foundation by exploring the fundamental
nature of moral concepts like good will, duty, and the categorical imperative. Metaphysics of morals helps us
understand how our rational nature interacts with our inclinations and desires, shedding light on the challenges
of moral decision-making and the importance of self-control and moral character.

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logic not only to diagnose a disease, but also in the debates with one-another. It also talks about a
Pramana, Yukti, (coming to a conclusion by a series of syllogisms of probabilities) in addition to
Perception, Inference and Aptopadesa, which is not found in any other logical school. However,
it was primarily developed as a method and philosophy of science i.e., an epistemological and
logical foundation for a scientific practice of medicine. On the similar lines, the methodological
and epistemological thinking in the logical schools of Indian thought could be of much help to
the philosophy of law from a Dharmic perspective.

The West has built up philosophical structures to support the newly discovered, formulated
and revived values, particularly democracy and individual rights. The Indian approach, however,
was to delve deeper and inquire into the true nature of the self. The metaphysics of Indian moral
ideals and thereby politico-legal understanding, therefore, can only be searched in the Epics and
the Bhagavad-Geeta, which is believed to be the cream of the Upanishadic philosophy. Geeta
talks about two Dharmas: Pravritti or activity and Nivritti or renunciation. “Twofold dharma is
the cause of stability of the world order and also the means by which men attain prosperity and
the highest good” (Geeta XVIII, 78). The Upanishads do not deny the reality of the world. They
allow it as an empirical reality (vyavaharika satta). As long as man is conscious of multiplicity,
he must deal with it as real. He must accept social values and ethical laws. The smritis recognise
that the immutable and universal philosophical truths must be adapted to peculiar social
conditions of time and place. Geeta do not distinguish between spiritual enlightenment and the
performance of social duties in the spirit of non-attachment. When Arjuna wanted to retire,
Krishna characterised his attitude as “lowness of spirit, unbecoming of his svadharma,
dishonourable, unmanly, and an obstacle to the attainment of heaven” (Geeta, II-2.3).

In this context, it wouldn’t be out of place to remind ourselves about the contextuality in
Indian thought. There is a tendency to recognize the importance of context and individual
circumstances in understanding and applying moral and legal principles in the Indian way of life.
The notion of ritusamyata or appropriateness in Indian Philosophy is applied to poetry, music,
sacrificial ritual and medicine. When in Brihadaranyaka Upanishad, Lord Prajapati speaks in
thunder three times: ‘DA DA DA’, the gods hear it as damyati or control, the daityas (being
habitual to cruelty, hear it as dayadhvam, ‘be compassionate’ and humans (being submerged in
greed, hear it as datti or ‘give to others’. Thus context-sensitivity is spread over in all enquiries.
So rasa in aesthetics, Moksha as aims of life’, crimes and punishment are defined in
contextuality. Legal authorities try to reduce the appropriateness or contextuality to a principle of
‘equitable relativity’ (Datta, 292). Manu (8.126) says punishment should be inflicted after
examining the circumstances, place, and time as well as the worth and offense of the culprit.

This perspective can lead to a more nuanced and flexible approach to legal interpretation
and application, taking into account the unique needs and circumstances of individuals and
communities. The transition from the moral principles in Ramayana to that of Mahabharata best
exemplifies it. In contrast to the ‘formalistic’ ethics advocated in the Ramayana, in which telling
the truth, keeping a promise, or doing one’s caste duty, happens to be unconditional obligation,
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the Mahabharata adopts more pragmatic considerations. For Krishna in the Mahabharata, formal
obligations need not override all other moral and non-moral considerations. Krishna’s attitude to
the formal moral code can be compared to that of a poet, who ‘accepts the constraints of metre,
verses and metaphors . . . but has absolute control over them. He uses them to produce music
which you cannot but admire. He governs from above but does not dictate’ (Matilal, 2015, 34).

The Indian philosophical traditions have deep metaphysical underpinnings that inform their
ethical systems. Though they have a diverse range of perspectives, rather than any unified
metaphysics, their common inspiration from the epics is noteworthy. There are certain elements
in these thinking which are discernible even in that diversity.

The first among them is the concept of Karma. The doctrine of Karma is a central tenet in
many Indian philosophies, including Hinduism, Buddhism, and Jainism. It is a storehouse of the
Indian way of life and that of being. It compensates the under-emphasis on ‘man as a social unit’
by the Indian thinkers. It posits that actions have consequences, not just in this life but also in
future lives. Karma is often linked to the idea of reincarnation (samsara), the cycle of birth,
death, and rebirth. Ethical actions are seen as a way to accumulate good karma and ultimately
achieve liberation (moksha or nirvana) from this cycle. Max Weber also sees ethical rationality
in the karma doctrine (Weber, 121). The Karma theory in its simplest form means that every act,
whether good or bad, produces a certain result which cannot be escaped. The doctrine is posited
as a moral necessity. Metaphysically, Karma is based upon “the doctrine of physical causation,
according to which each effect has to be accounted for by its causal precedents” (Matilal, 2015,
412). Karma doctrine attempts to answer three problems:

1. It refuses the view that world is arbitrary

2. Believes in the freedom of will and it is against fatalism and determinism, and
3. Attempts to answer the inequalities in the world without resorting to the presumption of
all powerful God.

It is neither a mechanical law nor a verifiable principle, but probably the best possible
explanation to justify the moral responsibility of human action (Matilal, 2015, 413). Sankara says
“how god can be responsible for these worldly inequalities without being unjust and partial”
(2.1.34-6). So God is dependent upon man’s Karma. Man’s own character decides his destiny.
Sankara says that God creates everything depending necessarily upon the Dharma and Adharma
(the residual force of Karma) of the living beings. Just as rain is the creator of all vegetation, the
difference between the species is due to the various potentialities of the respective seeds. Like
rain, God is the common cause of the creation but the respective merit (Dharma) belongs to the
individual souls. So “being bound by such limitations God cannot be blamed for lack of
impartiality” (2.1.34).

The second element is the nature of the self. Many Indian schools of thought explore the
nature of the self or soul. Some, like Advaita Vedanta, posit a non-dualistic reality where the

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individual self (Atman) is ultimately identical to the ultimate reality (Brahman). Understanding
this interconnectedness can lead to ethical behaviour, as harming others is seen as ultimately
harming oneself. A common thread in many Indian philosophies is the emphasis on the
interconnectedness of all things. This understanding can have profound implications for ethical
behaviour.

The third is the concept of Dharma, which is a complex concept that encompasses duty,
righteousness, and the natural order of the universe. It is not just about following rules, but also
about understanding one’s place in the cosmos and acting accordingly.

The fourth is the importance of consciousness. Many Indian philosophies emphasize the
role of consciousness in shaping our experience of reality. Ethical development is often linked to
cultivating self-awareness and understanding the nature of consciousness. Practices like
meditation and yoga are seen as ways to purify the mind and develop greater ethical sensitivity.

The fifth is non-violence. Ahimsa is a fundamental principle in many Indian ethical

systems. It emphasizes the importance of non-violence not only in action or deed, but also in
thought and language. This principle extends to animals and all living beings.

Thus though the Dharmashastras themselves have not attempted anything like Kant’s
Fundamental Principles of the Metaphysics of Morals, presuming the understanding of the
teachings of Epics and that of Indian way of life, a different paradigm of thought may be
attempted to inquire into these aspects. Therefore, the question of metaphysical foundation of
morality in Indian context needs to be dealt with carefully without falling into the pitfalls of
comparative philosophy, like adopting available western categories to analyse Dharmic ideals or
falling into the trap of uncritical admiration or utter contempt. When Tagore spoke of the
‘surplus in man’, he had in mind our capacity to question and transcend our own values, and
eventually to reach the dignity that comes with self-understanding. ‘It may be necessary to
revive, the old classical Indian concern for the dignity of human nature… making the ‘Surplus in
Man’ more visible to us in our perception of the self. Tagore likened the cultures of the world to
several mountain peaks ‘having different altitude, temperature, flora and fauna, and yet
belonging to the same chain of hills’. There are, Tagore says, ‘no absolute barriers of
communication’ between different cultures, because in each case ‘their foundation is the same’
(Tagore, 34). Therefore, by critically examining the historical, epistemological and social context
of Indian philosophical ideas, one may be able to integrate Indian Knowledge System with
individual rights and modern democratic tradition and progressively engage oneself with the
diverse civilisational perspectives towards philosophy of law.

While Indian philosophical ideas have shaped legal thinking in India for centuries, their
influence is not always explicit or easily discernible in contemporary legal practice. However,
there is a tremendous potential philosophical renaissance in Indian jurisprudence through the use

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of these thoughts. The discussions to follow shall set forth some of the theories of reality in their
relation to the above potentialities.

II. SCEPTICISM IN LOKAYATA AND EVIDENCE BASED REASONING

One of the most important characteristic features of Indian philosophical schools is that
every philosophical discussion therein starts with an explicit statement of its utility (Prayojana)
for human good (Purusartha). The ultimate purpose of philosophical knowledge is the avoidance
of evil, pursuit of desirable ends, and remaining indifferent to other things which are not relevant
according to their perspective. Philosophical discussion arises from the desire to know (Jignasa)
and from doubt (Samsaya). Philosophical inquiry aims at the elimination of doubt. It is based on
the assumption that argument and the arguer have the capacity of attaining truth. But if doubt
leads to contradiction it must be given up in favour of the truths arrived at after reasoning. The
materialistic conception of the reality too has been true to the above approach of Jigyasa and
Samsaya, but admits of only perception as the valid way of satiating that doubt. As a result,
anything that is perceived is believed to be only true. That is, their epistemology naturally leads
them to their metaphysical theory that only matter is real. One of the earliest Indian schools of
thought, Charvaka (literally sweet-tongued), also called Nastika-shiromani (arch-heretic) and
often known as Lokayata3 as well, emphasized the primacy of sensory experience and rejected
metaphysical speculation. It is called Lokayata as it is not only a philosophy of the people but
also a philosophy of this-worldliness (Chattopahyaya, 2). Materialism is based on a criterion of
pragmatic necessity. They accept the reality of four elements only- earth, water, fire and air. That
is, reality consists solely of material objects and sensations. The general scepticism of Charvaka
about reality other than what is perceived, gives rise to their materialistic philosophy and
consequently their ethics and hedonistic way of life, which may be summarised in the oft-quoted
maxim “rinam kritva ghritam pibet.” 4

Scholars are of the opinion that Lokayata may have arisen as a result of excessive
monkdom of Brahmins. It is perhaps when the idealistic philosophy no longer suited the
commoners who are busy with meeting their daily needs or when the commoner is exploited in
the name of excessive rituals, discontent with the idealistic view gradually grew or the natural
scepticism of human mind started to question them on the basis of reason, the materialistic
tendencies started to gain ground during post-Upanishadic age. The mythological view is that
Brihaspati, the teacher of the Gods, propagated materialism among the Asuras so that they might
be ruined (Sharma, 40). Most of the literature of Lokayata available today is found in the

3
Literally, Lokayata means that which is found among people in general, or according to some Lokayata is
derived from the essential emphasis on the natural world or iha-loka in this philosophy or a philosophy, the
basis of which is the natural world (Chattopahyaya, 2).
4
“याव जीवेत सख ु ं जीवेद ऋणं कृ वा घत ृ ं पवेत, भ मीभत
ू य दे ह य पन
ु रागमनं कुतः”

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writings of the critics of materialism, advanced in order to refute them. 5 However, Kautilya’s
Arthashastra (I. 1) counted Lokayata along with Samkhya and Yoga as a logical science
(Anvikshiki) (Dasgupta, Vol iii, 512). Upanishads (Svetasvatara) mention various atheistic
creeds and also about two schools of Charvakas: Dhurtta and Sushiksita (Dasgupta Vol. I, 78).
The first holds that there is nothing but four elements, and the body is but the result of atomic
combination. The Sushiksita Charvaka holds that there is a soul apart from the body but that it is
also destroyed with the destruction of the body (Dasgupta vol. I, 79).

D P Chattopadhyaya in his groundbreaking work, Lokayata: A Study in Ancient Indian

Materialism, challenges the conventional understanding of Indian philosophy as being solely
focused on spiritual matters. Instead, he argues that materialism was a significant and influential
current in ancient India. Chattopadhyaya meticulously reconstructs the Lokayata philosophy
from scattered references in ancient texts, demonstrating its materialist tenets, including the
denial of the soul, afterlife, and supernatural forces. However, according to recent commentators
on Charvaka, like Pradeep Gokhale, Charvaka is to be understood as a family-resemblance term
that refers to Indian philosophers with irreligious intentions. 6

Lokayata emphasis on perception (Pratyaksa) as the sole source of knowledge, rejecting

scriptural authority and metaphysical speculation is the most heretical and independent approach
found in the ancient Indian intellectual life. The validity of even inference is rejected. Inference
is said to be a mere leap in the dark. When we proceed from the known to the unknown, there is
no certainty even though some inferences may turn out to be accidentally true. A general
proposition may be true in perceived cases, there is no guarantee that it will hold to be true even
in unperceived cases. Deductive inference is vitiated by the fallacy of petitio principii, or
argument in circle, since the conclusion is already contained in the major premise and the
validity of the major premise cannot be proved unless all cases are observed. Inductive inference
undertakes to prove the validity of the major premise, but it is too uncertain because it proceeds
unwarrantedly from the known to the unknown on the basis of causal relation, which means
invariable association or Vyapti. Vyapti is central to all inferences. But Charvaka challenges this
universal and invariable relation of concomitance and regards it a mere guess-work. Perception
does not prove this Vyapti, nor can it be proved by inference, as inference itself is presupposing
its validity. Testimony cannot be relied upon unless it is perceived. Hence inference is not a valid
source of knowledge. However, Purandara, a Charvaka, admits the usefulness of inference in
determining the nature of all worldly things where perceptual experience is available, but

5
Sarvadarshanasangraha of Madhavacarya, Tattvasangraha, Manusamhita, Ramayana, Mahabharata and an
allegorical play Prabodha Chandrodaya of Krishnapati Mishra give some account of the Charvaka point of
view. The only available concrete sources of this philosophical school are the ones which are primarily written
to refute and ridicule the philosophy. As some scholars remarked, “this philosophy had the misfortune of being
known to us only through the writings of its opponents”. (Belvalkar and Ranade quoted by Chattopahyaya, 7)
6
He criticizes what he calls a singularist approach to Charvaka in the works of scholars such as Debiprasad
Chattopadhyaya and Ramkrishna Bhattacarya, who conceive of it as a single school with a more-or-less unified
set of positions (Gokhale, 9).

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inference cannot be employed for establishing any dogma regarding the transcendental world,
life after death, laws of karma which cannot be available to ordinary perceptual experience
(Dasgupta, vol. III, 536). Dasgupta argues that the main reason for upholding the validity of
inference in the domain of practical life and not in the domain of transcendental is that inductive
generalisation is made by observing a large number of cases in agreement presence, together
with agreement in absence and no cases of agreement in presence can be observed in the
transcendental sphere. That is, the law of concomitance cannot be applied to this sphere.
Similarly, they rejected the authority of religious texts and traditions, considering them to be
products of human imagination and social conditioning.

There is a kind of mitigated empiricism in Charvaka which is “the position that though
perception is the major instrument of knowledge, a certain kind of inference can be accepted as
a means to knowledge” (Gokhale, 86). According to this view, inference can be accepted as a
means of knowledge in a weaker, secondary sense according to which inference sometimes does
yield knowledge in particular domains even though it cannot necessarily be guaranteed to yield
knowledge in all domains.

Thus according to Lokayata, the primacy of observation is central to any knowledge claim.
Direct observation forms the basis for establishing facts in legal contexts as well. Evidence
presented in court must be verifiable through sensory experience, aligning closely with the
principles of evidence. Lokayata’s materialist worldview posed a direct challenge to the
dominant Brahmanical orthodoxy, which focused on spiritual liberation and otherworldly
concerns. The emphasis on sensory experiences and empirical observation as the foundation for
understanding reality aligns with key principles of evidence-based reasoning. It highlights the
importance of direct observation and empirical evidence, gathering data through careful
observation and experimentation, scrutinizing evidence for its validity, reliability, and
elimination of potential biases. They are thus questioning assumptions, challenging dogmas, and
demanding evidence for extraordinary claims and ultimately they want to apply the knowledge
derived from such observation to improve human well-being and solve real-world problems. In
essence, Lokayata can be seen as an early form of scepticism that emphasized the importance of
empirical evidence and critical thinking in understanding the world. While their specific
philosophical framework may differ from modern scientific methodology, their emphasis on
direct observation and rejection of unsupported claims resonates with the core principles of
evidence-based reasoning. In our contexts today, Charvaka may be understood as a moral
critique of Brahmanical orthodoxy from a secular point of view.

Materialism of Carvaka and its Influence on Non-materialistic Schools

The non-materialistic systems of Indian thought have been, consciously and unconsciously,
influenced by materialism. The development of dialectic in India may be traced back to a critical
period when Vedic ritualism and practices were challenged and social codes, moral norms and

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Vedic beliefs in the destiny of the soul were doubted. Pre-Vedic and non-Vedic philosophies
including the extreme materialism of Charvaka has profound influence on the development of
disputation. As early as the Rigveda (10-30-3, 8-70-7, 8-71-8) refers to a class of man
(subsequently designated as Charvaka, a pupil of Brihaspati) who believe that consciousness is
produced through the combination of four elements, and once elements are dissolved in death
consciousness also disappears. In Ramayana (Ayodhya Kanda, sarga 108, verse 17) Javala
elucidates similar doctrine (Vidyabhushan, p. 9). Such a challenge to the orthodox beliefs and
philosophies needed proper development of a logical system. Though the Charvaka
epistemology and metaphysics was vehemently criticised by other schools, there was an
intellectual openness in Indian knowledge tradition which may be best exemplified by the
following question asked by Bhartruhari, the 5th century philosopher of language in his last
karika of the second kanda of Vakyapadiya, “The intellect acquires critical acumen by
familiarity with different traditions. How much does one really understand by merely following
one’s own reasoning only?”(Kapoor). Questions, answers and debates became the order of the
day. Matilal has called debate the ‘preferred form of rationality’ in classical India (Matilal, 1998,
32).

Descartes, who is known as the father of modern western philosophy, says that the
scepticism of Hume has awakened him from dogmatic slumber. The uncompromising scepticism
of Charvaka awakened the Indian philosophical schools, particularly the logical school of Nyaya
from their one-sided views centuries earlier and who therefore could develop logic, epistemology
and dialectical methods independent of their metaphysical convictions and religious practices.
Their debates on methods of establishing a thesis (Siddhanta) remained secular and are
considered as a common ground of Indian philosophical schools. The elaborate treatment of
method and technical language of the Nyaya Sutra of Gautama came to be adapted to a large
extent by all the other schools, with minor variations (Datta, 132).

The logical and rationalist schools believe that the material basis of philosophical
discussion is the individual’s own direct experience (pratiti or anubhava), including
introspection and knowledge obtained from other valid sources. Current linguistic usage
(vyavahara), which is a socially accepted experience, is often taken as the material basis of
philosophical theories, thus making common-sense the foundation of philosophical inquiry.
Doubt (samsaya) is regarded by Gautama as the chief incentive to philosophical inquiry. For the
removal of doubt one must carefully consider the pros and cons (paksa-pratipaksa) and ascertain
the true nature of things. For this purpose one is advised to take the help of all valid sources of
knowledge, use (and avoid conflict with) previously established theories (siddhanta), use
examples (dristanta) which are acceptable to all, employ the five-step method of discovery and
proof (panchavayava-nyaya), use the indirect hypothetical or postulational method of
strengthening the conclusion (tarka), and also take care to avoid five kinds of material fallacies
(hetvabhasa), three kinds of quibbles (chala), twenty-four kinds of false analogies (jati), and
twenty-two kinds of self-stultifying steps which would cause defeat in debates. This elaborate

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method of critical inquiry was regarded as the light for all branches of knowledge, as the means
of all (rational) activity, and as the basis of all virtues (dharmas). As one commentator remarks,
“the part played by materialism as a presupposition of the science of medicine (Ayurveda),
Chemistry (Rasayanshastra), Economics (Arthashastra), Erotics (Kamashastra), and Poitics
(Dandaniti and Dharmaniti or Rajniti) is much more pronounced than it is in the case of
philosophical thought.” (Mittal, 19)

III. ANEKANTAVADA: MULTIPLE PERSPECTIVES AND LEGAL

INTERPRETATION

Jainism, practising some of the most rigorous methods towards salvation, is as old as any
other orthodox schools of Indian thought. Its metaphysics of realistic and relativistic pluralism or
Anekantavada offers a middle path between the idealistic monism of Brahmanism and the
momentariness of early Buddhism, though it existed in the intellectual domains of ancient India
much earlier to Buddhism. Anekantavada or the many-sidedness of reality has a corollary
epistemological theory. It suggests that truth is multifaceted and can only be grasped partially
from any single perspective.

Jaina epistemology classifies knowledge into Aparoksha or immediate and Paroksha or

mediate and also into Pramana or “knowledge of a thing as-it-is” and Naya or “knowledge of a
thing in its relation”. The second classification is found in one form or the other in Ancient
Greek to modern philosophers of the West and other schools of Indian philosophy. Parmenides
distinguishes between opinion and truth, Socrates between the world and the form; Plato between
doxa and truth, Kant distinguishes between noumena and phenomena, Upanishads between para
vidya and apara vidya, and Advaita between vyavahara and paramartha. Philosophers across the
civilisational divide have always stressed on this distinction highlighting the difference in our
knowledge of the external world as it is posited to our cognition and the true nature of things.

Coming to the first division, Jainas divide immediate knowledge further into 1. avadhi, 2.
mana paryaya, and 3. kevala and mediate into Mati and Shruta. Perception is not immediate
knowledge according to Jainas, but is included under mati. Because, according to Jainas,
perception in the sense of mere sensation cannot rank as knowledge unless it is given meaning
and arranged into order by conception or thought. In modern western philosophy, Kant
reconciled the battle between rationalist and empiricist by offering logic similar to that of Jains
that “Concepts without percepts are empty; percepts without concepts are blind.” Jaina Mati
includes both perception and inference and Shruta stands for authority. The three kinds of
immediate knowledge are extraordinary or extrasensory. Avadhi is direct knowledge of things
from the distance of space and time. But it cannot go beyond spatial and temporal limits.
Manahparyaya is the direct knowledge of the thoughts of others. In both avadhi and

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Manahparyaya, the soul has direct knowledge unaided by the senses and mind. Finally, kevala
jnana is unlimited and absolute knowledge, which can be acquired by the liberated souls only.

The Jaina distinction between Pramana and Naya offers their unique perspective on the
many sides of reality. Naya means standpoint of thought from which we make a statement about
a thing. All truth is relative to our standpoint. Partial knowledge of one of the innumerable
aspects of a thing is called Naya. When taken as absolute a Naya becomes fallacious, that is
naya-bhasha. In Jain philosophy, Naya refers to a particular perspective or viewpoint from
which reality can be understood. It acknowledges that reality is complex and multifaceted, and
no single viewpoint can capture its entirety. A Naya offers a partial understanding of reality,
focusing on a specific aspect or attribute of an object or concept. It doesn't deny the existence of
other aspects, but it doesn’t explicitly acknowledge them either. Thus, each Naya represents a
relative standpoint, which is valid within its own context. However, it’s crucial to recognize that
it’s not the complete truth. An object whose nature is to be many-sided is the content of complete
knowledge. The field of a Naya is a thing qualified by one aspect. (Siddhasena, 29)

Complete knowledge is knowledge of everything about the object; partial knowledge is the
knowledge of something about it. As a metaphor from the Tattvartha Sloka Vartika
(Vidyananda, 1.6.21, 1.6.25) has it, just as a part of the ocean is not the whole of the ocean, but
neither is it something other than the ocean, so too a Naya is not a Pramana, but neither is it
something other than a Pramana.

Jain philosophy categorizes Nayas into various types, based on the specific aspect of
reality they emphasize. For example, some Nayas focus on the substance of an object, while
others focus on its qualities or modes. The first is Naigama Naya. From this standpoint, we look
at a thing as having both universal and particular qualities and we do not distinguish between
them. It becomes fallacious when both Universals and particulars are regarded as separately real
and absolute. The second is Sangrah Naya. Here we emphasize the universal qualities and ignore
the particulars when they are manifested. It becomes fallacious when universals alone are treated
as real and particulars are rejected as unreal. The third is Vyavahara Naya, the conventional
point of view based on empirical knowledge. Here things are taken as concrete particulars and
their Specific features are emphasized. It becomes fallacies when particulars alone are viewed as
real and universals are rejected as unreal. The fourth is called Rijusutra Naya. Here the real is
identified with the momentary. The particulars are reduced to a series of moments and any given
moment is regarded as real. When the partial truth is mistaken to be the whole truth it becomes
fallacious.

The next three are related to words and language. Shabda Naya, Samabirudhha Naya, and
Evambhuta Naya refers to our confusions as a result of our use of language and is akin to

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Bacon’s idols of marketplace.7 Each Naya or point of view represents only one of the enumerable
aspects possessed by a thing from which we may attempt to know or describe it. When any such
partial viewpoint is mistaken for the whole truth we have a Naya-bhasa.

The concept of Naya is closely related to the principle of Anekantavada, which emphasizes
the multiplicity of viewpoints and the relativity of truth. Jaina philosophy believes in matter
(Pudgala) and spirit (Jiva) as separate and independent realities. There are innumerable material
atoms and innumerable individual souls, each of which possesses innumerable aspects of its
own. Every object possesses innumerable positive and negative characters. It is not possible for
ordinary people to know all the qualities of a thing. Only an omniscient liberated soul knows all
the qualities of one thing and all the qualities of all things. Therefore human knowledge is
relative and so are their judgments, which also need to be relative. This leads us to the Jaina
concept of Syadvada or saptabhangi Naya or the theory of relativity of knowledge. So the best
way to make a judgement is to begin with or to condition our judgement with ‘Syat’ or
‘relatively speaking’ or ‘viewed from a particular viewpoint which is necessarily related to other
viewpoints’ before saying anything at all. This epistemic humility is the foundation of Jaina
world-view, their metaphysics and their ethical doctrine of Ahimsa. Because, when we are aware
of our own limited perspective to the truth, there is natural tolerance and non-violence against
other perspectives. Jainas are fond of the example of six blind men and an elephant. According to
them, almost all philosophical, ideological and religious differences and disputes are mainly due
to mistaking a partial truth for the whole truth (Sharma, 53).

Jain epistemology highlights the importance of understanding different perspectives to gain

a more comprehensive understanding of reality. In essence, the concept of Naya encourages us to
approach reality with an open mind, acknowledging the limitations of our own perspectives and
appreciating the validity of diverse viewpoints.

This concept can offer valuable insights into legal interpretation and decision-making by
encouraging epistemic humility. Any legal issue can be viewed from various angles, considering
the viewpoints of all stakeholders involved. This can help legal professionals avoid tunnel vision
and ensure a more comprehensive understanding of the situation. It may also be helpful for us to
communicate effectively because by understanding that others may see things differently we can
be more open to their perspectives and find a common ground to resolve a conflict like situation.
The weakness of every dogmatic assertion that tries to monopolise truth may be exposed with
Jaina epistemology. That is why, Gandhi and Vinobha advocated Jaina logic in practical politics
(Datta, p. 275).

7
Errors in thinking that arise from the misuse of language and the way words are commonly understood in social
discourse, essentially meaning that people can be misled by the imprecise or ambiguous language used in
everyday conversations and public discourse, hindering clear understanding; it is considered a type of logical
fallacy.

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 The Jaina belief in non-violent way of life, the renunciation from a worldly ego, the
dissociation of self and non-self, and a gradual purification of the self towards unobstructed
knowledge, become as many different facets of the same effort to access to a superior order of
being in which each self manifests its true nature (Gorisse). By acknowledging the existence of
multiple truths, Anekantavada fosters open-mindedness and tolerance, thereby aligning their
pursuit of knowledge with the virtuous principle. Their ethics and political philosophy is founded
on their epistemic humility, where virtues like compassion are hand in hand with intellectual
empathy. Aparigraha (non-possession/non-interference), anekanta (non-absolutism), and ahimsa
(non-violence) are the principle virtues that Jainas prescribe. The concept of aparigraha extends
beyond the mere non-possession of physical objects to include ideas. 8 While those who attain
Kaivalya may not perceive possession towards thoughts, knowledge, and intuitions, for truth
aspirants, clinging to specific ideas risks fostering dogma. Dogma, in turn, interferes with the
autonomy of others’ thoughts, words, and actions, constituting intellectual violence or himsa.
Jainism underscores that each vantage possesses relative validity due to anekanta, demanding
practitioners to grapple with cognitive issues for a robust epistemic framework.

In Jain ethics, the pursuit of knowledge harmonizes with the fundamental principles of
aparigraha and ahimsa, exemplified by ‘anekantavada’ or non-absolutism. This doctrine
recognizes the intricate nature of reality, urging individuals to embrace diverse perspectives for a
comprehensive understanding. The ethical dimension lies in committing to approach knowledge
with an open mind, recognizing the limitations of one’s viewpoint, and respecting the autonomy
of diverse perspectives. Such an approach is sympathetic to the differing legal interpretations and
arguments. This can lead to more nuanced and balanced legal decisions as well. Anekantavada
highlights the importance of considering the specific context of a legal issue, recognizing that the
same law may have different implications in different situations. This can help legal
professionals avoid rigid application of legal principles and ensure that justice is served in each
individual case.

Recognizing the multifaceted nature of reality, Anekantavada encourages dialogue and

deliberation among legal professionals, stakeholders, and the public. This can lead to more
informed and just legal outcomes. Anekantavada cautions against dogmatic adherence to any
single legal interpretation or perspective. This can help legal professionals avoid imposing their
own biases or preconceived notions on legal issues. While the direct application of
Anekantavada in legal practice may be challenging, its underlying principles can offer valuable
guidance for legal professionals seeking to navigate complex legal issues with greater sensitivity,
nuance, and fairness.

IV. ADVAITA VEDANTA: NON-DUALITY AND

INTERCONNECTEDNESS OF ALL BEINGS
8
Some commentators have stressed on the idea of knowledge, intuition, and thought as possessions.
(Pujyapada Devanandi, Sarvarthasiddhi, a commentary on the Tattvartha Sutra)

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 Advaita is the most influential school of Indian philosophy. Though a view attempting to
establish uniformity of Indian philosophical schools as if all differences are evolving towards the
doctrine of non-duality may not be entirely true, there is no doubt that Advaita presents the
fulcrum of what Upanishads taught. The Brahma Sutras of Badarayana9, which was the primary
text of Vedanta, was written in order to establish the uniformity in the teachings of Upanishads
and Vedanta Acharyas have given detailed commentaries on it including the principal
Upanishads and Bhagvad-Geeta, which constitutes Prasthana Trayi.10 It is believed that Sankara
wrote his commentary on the Brahmasutra when he was twelve years old. In his way of
establishing Vedanta philosophy of non-dualism, Sankara travelled across the country defeating
the adherents of other schools of thought and ultimately moulding the religious life of India
(Dasgupta, Vol-I, 432). His commentaries on these basic canons were intended primarily to
refute all those who were opposed to the right doctrine of perceiving everything as the unity of
the self (atmaikatva) (Dasgupta, Vol-I. 433).

Advaita asserts that the ultimate reality (Brahman) is identical to the individual self
(Atman). The apparent diversity of the world is an illusion (Maya). So in spite of their
uncompromising monism, Advaitins allow a degree of reality and value and think in terms of
identity-in-difference in respect of all phenomena including social ones. Identity is the ultimate
truth but differences are its appearances and to be able to realise identity through diversity is a
necessary and valuable step towards the ultimate truth (Datta, 273). Viewed sub specie temporis
(viewed in relation to time rather than eternity), the world is the world of finitude around us, but
viewed sub specie aeternitatis (in its essential or universal form) it is the Brahman (Raju, 55).

Maya or Avidya is not only a psychological existence but also an ontological existence.
Ajnana forms its subjective plane of the mind and senses, on the objective plane, the Jagat, the
whole of the objective universe. Ajnana has two powers- power of veiling (Avarana) and the
power of projection (Vikshepa). The power of veiling is like a little cloud veiling the sun.
Though in a limited way, it actually covers a particular area. Likewise, it covers the infinite
unchangeable self by veiling its self-luminosity as cognisor. As a result the self appears as an

9
These are a collection of aphorisms that systematize the teachings of the Upanishads. They provide a logical
framework for understanding the Vedanta philosophy and are known as the Nyaya Prasthana.
10
The Prasthana Trayi, meaning “three sources” or “three axioms”, refers to the three canonical texts that form
the foundation of Vedanta philosophy: i. The Upanishads- also known as Shruti Prasthana meaning “the
starting point or axiom of revelation”; ii. The Brahmasutra- the Nyaya Prasthana or Yukti Prasthana, meaning
“the logical text or axiom of logic”; iii. Bhagava Geeta- also known as Smriti Prasthana meaning “the starting
point or axiom of remembered tradition”. These texts are considered authoritative sources of spiritual
knowledge and are essential for understanding the nature of reality, the self, and the relationship between the
two. Gaudapada in his Mandukya Karika revived the monistic teachings of Upanishads. Sankara commentaries
on the three give rise to a host of sub-commentaries viz,, Nyaya Nirnaya of Anandagiri, Ratnaprabha of
Govindananda, Bhamati of Vacaspati Mirsa, Kalpataru of Amalananda, Naiskarmyasiddhi of Suresvara, to
name only a few of the great tradition of Advaita. These three texts complement each other and offer different
perspectives on the same fundamental truths. The Upanishads provide the philosophical foundation, the
Brahma Sutras offer a logical framework, and the Bhagavad Gita provides practical guidance on how to live a
spiritual life.

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agent and enjoyer of pleasure and pains and is subject to ignorant fears of rebirth. Through its
projecting power it creates the manifest world-appearance.

Contemporary interpretations of Advaita Vedanta often emphasize the dynamic and

creative aspects of reality, acknowledging the importance of individual experience and action in
the path of self-realization. However, while doing so it also asserts that the ultimate truth cannot
be known by reason alone. What one debater shows to be reasonable another expert debater may
prove it to be false and the expert debater may again be proved to be false by yet another. That is,
there is no finality or certainty to which we can arrive at by logic and argument alone (Dasgupta,
Vol. I, 434). All experience starts and moves in an error which identifies the self with the body
or the senses. All cognitive acts presuppose this illusory identification, for without it pure self
can never behave as a phenomenal knower and without such knower there would be no cognitive
act. This identification is a beginning less illusion. The pure self as pure being (sat), as pure
consciousness (cit) and pure bliss (ananda) is the ultimate truth. So the world as it appears could
not be real. This theory of Maya influenced the outlook and life of its believers. The vision of the
socialised transformation of mankind is, therefore, routed through the inner transformation of
individual man. Sankara prescription for the transformation of man is in form of Sadhana-
Chatushtaya or the qualifications necessary for the study of Vedanta.

1. Nitya Anitya Vastu Viveka or ability to discern the eternal from the non-eternal,
2. Iham utraphala bhoga viraga or disinclination to the enjoyment of the pleasures of this
world and of the after world,
3. Samadamadi sadhana sampat or the attainment of peace, self restraint, renunciation,
patience, deep concentration and faith, and finally,
4. Mumukshutva or the desire for salvation.

When one realises that the self alone is the reality and all else is Maya, all injunctions
cease to have any force on him. The fourfold discipline blends virtue and knowledge, thought
and moral practice. The philosophical wisdom needs to be morally conditioned. To be rational is
to be moral and ethical failings distort the philosophical vision. Even the intuitive faculty is not
independent of the moral. The knowledge of the nature of reality is, thus, intricately connected
with our actions. In Nishkama Karma, actions without desire to its consequences or one who
performs actions with non-attachment, because he considers it his duty and not because he has
bargained for results has liberated himself from the chains of actions and consequences to
himself. It is not merely a moral ideal but a philosophical theory arrived at by deep reflection on
the psychology of desiring or striving and its impact on the reasoning purity of the knowing
mind. Nishkama Karma is counterpart in the sphere of action to the Niskama Citta (un-defective
and clean instruments of reason) or theory of non-attached mind in the realm of knowledge. The
former can only flow from the later.

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 Advaita Vedanta emphasised personal ethics more than social ethics and prescribed
austerity, control of mind, non-attachment, chastity, reverence, forbearance and concentration.
But it appears that it has overlooked the fact that good society is also necessary for good
individuals. Spiritual is regarded as more enduring than the physical. However, the non-dualists
are not indifferent to the world. They take the world to be very real in a certain important sense.
Fulfilment of social obligation is an indispensable condition of spiritual experience.

Advaita has a unique metaphysical foundation that profoundly shapes its ethical
framework. It implies that harming others is ultimately harming oneself, as we are all
interconnected and essentially one. While Advaita acknowledges the concept of Karma, it views
it within the framework of non-duality. Actions performed under the influence of Maya create
karmic impressions that perpetuate the cycle of birth and death. However, with self-realization,
the sense of individual agency dissolves, and the cycle of karma is transcended. The
understanding of the oneness of all beings fosters compassion, empathy, and a sense of
responsibility towards others. Recognizing the inherent unity of all life promotes non-violence in
thought, word, and deed. Advaita encourages detachment from the ego and the pursuit of selfish
desires, as these are seen as rooted in the illusion of individuality. While not necessarily
implying physical renunciation, Advaita emphasizes detachment from worldly bondages and
desires, which are seen as obstacles to self-realization. This perspective can inform legal
approaches that prioritize empathy, compassion, and the recognition of shared humanity. It can
also lead to a critical examination of legal systems that perpetuate social divisions and
inequalities.

V. CONCLUSION: POSSIBILITY OF RECONSTRUCTION

“From food all creatures are born; from rain food is produced; from sacrifice
comes rain; sacrifice is born of action. Known that action arises from the Vedas,
and the Vedas from the Imperishable. One who does not recognise this all-
pervading co-operative spirit lives in vain.” (Geeta-III-14-15-16)

The philosophy, politics and legal system of a nation are outward expressions of national
culture and sentiments. Our political culture is a function of our intellectual and civic life.
Respect to dissent has been a basic philosophy of our social life. Respect has a positive
connotation and emotion attached to it and is more inclusive than simply tolerance. The Indian
civilization was plural and included different currents of moral and philosophical thought
ranging from polytheism to atheism and from crude materialism to idealism. The philosophic-
religious traditions of Jainism and Buddhism co-existed in the Grand Discursive Model of the
Indian Civilization. This grand Discursive Model did not find it much difficult to absorb even
invaders' legal and administrative vocabulary in the mediaeval period and after centuries of
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political subjugation assimilated the political wisdom of the Western world when it adopted and
gave itself a modern constitutional framework.

“In spite of their occasional quarrels and periods of intolerance, these bodies of ideas
enjoyed considerable freedom of expression, engaged in critical dialogue, challenged
and borrowed each-other’s ideas and created over time a distinct and internally
differentiated composite culture (Parekh, 48).”

The Indian tradition and the Indian society were congenial to democratic government. As
Austin remarks, “The ideas and spirit of English liberal democracy fell on fertile ground.”(330)
This fertile ground is actually irrigated for centuries by the ancient Indian concept of Rta/ Rita,
which transformed to the idea of Dharma in later years, meaning virtues and duties in personal
life and the laws of the state in political life. The Vedic seers reflected deeply on the moral
principles behind the universe and sang hymns in honour of cosmic order, ethical laws and social
virtues (Radhakrishnan & Moore, 25ff). The concept presumes laws to be just laws which
restrain evil propensities and promote virtuous life. Rita was conceived as above the Gods just as
Dharma is understood in Dharmashastras as above the king. (Datta, 286-287). These ideals
enable us to “ascend to a height from which we can see law as an ever-present part of an ever-
flowing stream”.11 The common emphasis by the Indian philosophical schools on the importance
of reason and inference in understanding the world and at the same time, their grounding on the
common or at least similar ethico-ontological concept of Dharma has a profound impact on the
social and political worldview of the sub-continent, and may also serve as the metaphysical
foundation of the principles of moral, political and legal worldview.

The possibility of conceptual reconstruction of metaphysical foundations for socio-political

realities may be found in the cooperative spirit in the Dharmic way of life. This scheme of life is
not competitive but cooperative. It is believed that it is by the ceaseless cooperative activity of
both inanimate nature and living beings that the wheel of creation is kept moving (Nikhilananda,
217).

The philosophical developments in the colonial era had a great opportunity of evolving
philosophies in the process of ongoing dialogue of perspectives provided by the enlightenment
philosophies of the West. This dialogue of perspectives produced thinkers and philosophers like
Gandhi, Tagore and Aurobindo, who transformed the collective unconscious of the Indian mind
into political philosophy, literature and spirituality for the modern man respectively. Today we
have reached a juncture in Indian intellectual life where Indian logic and metaphysics must be
reinvented to lay the foundation of a social philosophy for the mortal existence as well. A
metaphysics which is consistently spiritual in outlook and objective must take recourse to
secondary methods to supply the categories that social context demands. In this situation, the
moral requirement needed for achieving spiritual objective, as in the various concepts discussed

11
Sir John Macdonell in his “Introduction to the Translated Volume” of Fritz Berolzheimer’s The World's Legal
Philosophies. (Berolzheimer, xxxviii)

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above, may serve as a starting point for this reconstruction. The rigorous moral requirements of a
sadhak may themselves be less adequate for the day to day co-existence of individuals living in
the society. But these personal virtues are intricately connected with the social. Kathopanishads
says both the desire for worldly happiness and the desire for highest good are legitimate desires
and they are always present (I-ii-2). Both are accepted as valid in the epics, Upanishads and
Manusmriti. The ethics of Bhagavad-Geeta centres around a war fought for preserving social
order or Dharma in the society. It is not the unitary pursuit of salvation that the Geeta preaches,
but the salvation through performance of one’s duties of establishing a political system where
rule of law permeates. Mahabharata shows that all the complexities of performance of duties,
svadharmas, loyalty to king, friendship and all other virtues have proved to be subordinate to the
ultimate objective of the war, which was Dharma Vyavastha. Mahabharata Shanti Parva
(63.28.29), therefore, declares,

“In governance is realised all forms of renunciation; in governance is united all the
sacraments; in governance is combined all knowledge; in governance is centred all
the worlds.”

The epic is replete with instances when the objective of establishing Dharma outweighed
all other considerations including personal virtues. Modern jurisprudence and legal reforms
particularly in the field of public law must be made akin to such an approach to justice. Justice
will no longer be blind, because it has to be aware of the particularities, contexts and individual
circumstances. The fold of Contractarian blind impartiality was removed when the Supreme
Court of India unveiled a redesigned version of the ‘Lady Justice’ statue, not only marking a
significant departure from its colonial past, but also placing the book of the Constitution in her
hand (in place of the sword), interpreting which in the true spirit of Dharma is the primary job of
the judiciary. The Danda, as a symbol of sovereign power and a reminder of virtuous
administration is placed in the form of Sengol in the popular house of the Union Parliament when
the new Parliament House building was inaugurated, signifying popular sovereignty of the
highest law making body of the nation. This may only be a symbolic gesture towards the
possibility of aligning Indian polity and legal system with Dharma Vyavastha, but a sufficient
inspiration to toil the soil and reinvent our laws in our own ways of being.

REFERENCES

1. Austin, Granville, The Indian Constitution: Cornerstone of a Nation, New Delhi: Oxford
University Press, 1999.

2. Berolzheimer, Fritz, The World’s Legal Philosophies, in Modern Legal Philosophy

Series: Vol. II, trans. From German by Rachel Szold Jastrow, Boston: Boston Book
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 Company, 1912.
3. Chattopadhyaya, Debiprasad, Lokayata: A Study in Ancient Indian Materialism, New
Delhi: People’s Publishing House, 1973.
4. Dasgupta, S. N., A History of Indian Philosophy, Vol. I, Vol. III, New Delhi: Motilal
Banarsidass, 2022.
5. Datta, D. M., “Epistemological Methods in Indian Philosophy” (118-135) in Moore,
Charles A. The Indian Mind: Essentials of Indian Philosophy and Culture, Delhi: Motilal
Banarsidass, 2008.
6. Datta, D. M., “Some Philosophical Aspects of Indian Political, Legal, and Economic
Thought” (267-298) in Moore, Charles A. The Indian Mind: Essentials of Indian
Philosophy and Culture, Delhi: Motilal Banarsidass, 2008.
7. Gokhale, Pradeep P., Lokāyata /Cārvāka: A Philosophical Inquiry, Delhi: Oxford
University Press, 2015.
8. Gorisse, Marie-Hélène, “Jaina Philosophy”, The Stanford Encyclopaedia of Philosophy
(Summer 2024 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL =
<https://plato.stanford.edu/archives/sum2024/entries/jaina-philosophy/> .
9. Kapoor, Kapil “Eleven Objections to Sanskrit Literary Theory: A Rejoinder”, available
at: http://www.indianscience.org/essays/st_es_kapoo_eleven.shtml, last visited on
November 16, 2024.
10. Matilal, B. K. The Character of Logic in India, State University of New York Press,
Albany, 1998.
11. Matilal, B. K. Ethics and Epics: The Collected Essays of Bimal Krishna Matilal,
(Jonardon Ganeri (ed.), Oxford: OUP, 2015.
12. Mittal, K. K., Materialism in Indian Thought, New Delhi: Munshiram Manoharlal, 1974.
13. Moore, Charles A. The Indian Mind: Essentials of Indian Philosophy and Culture, Delhi:
Motilal Banarsidass, 2008.
14. Nikhilananda, Swami, “The Realistic Aspect of Indian Spirituality” (216-247), in Moore,
Charles A. The Indian Mind: Essentials of Indian Philosophy and Culture, Delhi: Motilal
Banarsidass, 2008.
15. Parekh, Bikhu, “The Constitution as a Statement of Indian Identity”, in Bhargava, R.
(ed.) Politics and Ethics of Indian Constitution, 2008.
16. Radhakrishnan & Moore (ed.), A Sourcebook in Indian Philosophy, Princeton: Princeton
University Press, 1957.
17. Saksena, S. K. “Relation of Philosophical Theories to the Practical Affairs of Man” (19-
40) in Moore, Charles A. The Indian Mind: Essentials of Indian Philosophy and Culture,
Delhi: Motilal Banarsidass, 2008.
18. Sankara, Brahma Sutra Bhasya, (ed.) J. Shastri, Delhi: Motilal Banarsidass, 1980.
19. Sharma, Chandradhar, A Critical Survey of Indian Philosophy, 2003.
20. Siddhasena Divakara c. AD 700, Nyayavatara (NA).

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21. Tagore, Rabindranath, “The Surplus in Man”, in The Religion of Man, Oxford: Oxford
University Press, 1920.
22. Vidyabhushan, S. C., History of Indian Logic: Ancient, Medical and Modern Schools,
Shiv Books International, New Delhi, 2005.
23. Vidyananda, Tattvarthaslokavarttika 1.6.21, 1.6.25.
24. Weber, Max, The Religion of India, trans. Hans H Gerry and Don Martindale, New York:
The Free Press, 1958.

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 SUGGESTED READINGS
(These readings have been suggested for a deeper understanding of the concepts for teachers and
students.)
 CONCEPT OF PURUSHARTHA
-Prof. (Dr.) Shankar Kumar Mishra
PURUSHA Department of Dharmashatra mimansa
SVDV BHU Varanasi Uttar Pradesh

The word Purusha is derived from pṛḥ (पुरः ) meaning pura (पुरं) (body) and śarīram
(शरीरं ). Puri śete iti puruṣaḥ (पु र शेते इित पु षः ) – meaning, the sentient being who resides in
this pura (body), who has entered and is situated in the body, is called Purusha. According to
this etymology, the composite meaning of the word Purusha is any living being. However, in
scriptural references such as Purushatve chāvistaramātmā (पु ष े चािव रामा ा), Purushatve
cha māṁ dhīrāḥ (पु ष े च मां धीराः 1), Bahvayaḥ santi puraḥ sṛṣṭāstāsaṁ me pauruṣī priyā
(ब यः स पुरः सृ ा ासां मे पौ षी ि या2), and Puraṁ puruṣamātmavān (पुरं पु षमा वान्), the
word Purusha is primarily used to refer to a human being rather than a general living entity.
Hence, in such scriptural contexts, the word Purusha does not mean just any living being but
specifically refers to a human. Accordingly, in the term Purushartha, the word Purusha denotes
a human being, meaning both men and women.

PURUSHARTHA

The etymology of Artha (अथ) is derived as Arthyate prārthyate sarvaiḥ iti arthaḥ
(अ ते ा ते सवः इित अथः ), meaning that which is desired or sought after by all is called Artha
(goal or object of pursuit). Similarly, Purushāṇām arthaḥ puruṣārthaḥ (पु षाणाम् अथः पु षाथः )
– that which is the goal or pursuit of human beings is Purushartha. Another etymology states,
Purushaiḥ arthyate iti puruṣārthaḥ (पु षैः अ ते इित पु षाथः 3), meaning that which is desired
or sought after by humans is called Purushartha. From this perspective, almost everything in
the world is desired by human beings. However, in the Vedas, scriptures, and the entire Sanskrit
literary tradition, among all the desired goals of human life, only four are considered primary
and essential—Dharma (righteousness), Artha (wealth), Kama (desires), and Moksha
(liberation). These four alone are known as the Chaturvarga or the four Purusharthas. The
ability to accomplish these pursuits is present only in human beings; hence, all living beings
cannot engage in them. Only humans can pursue these goals, which is why they are termed
Purushartha.4

The desires of human beings, whether for happiness or the means to attain happiness,
are called Purushartha. In reality, whatever a human being aspires for upon being born in this
world ultimately falls into one of these four categories. Some individuals prioritize Dharma
(righteousness), some seek the fulfillment of Kama (desires), and others long for Moksha
(liberation). The Supreme Lord bestows these fourfold rewards upon beings according to their
aspirations.

1
Śrīmadbhāgavata 11.7.21
2
Śrīmadbhāgavata 7.11.22
3
Śrīmadbhāgavata 3.20.50
4
Puruṣaḥ means the desired objectives of human society. Puruṣeṇa prārthānī śreyāṁsi (phalāni).

1
Puṁsām amāyināṁ samyag bhajatāṁ bhāva-vardhanaḥ |
śreyo diśaty abhimataṁ yad dharmādiṣu dehinām ||
(Shrimad Bhagavatam 4.8.60)

Thus, in this world, Dharma (righteousness), Artha (wealth), Kama (desires), and
Moksha (liberation)—these four objectives (Chaturvarga) are the ultimate goals of all human
endeavors.

The relevance of Manavadharmashastra (the scripture on human duties) was as

significant in the past as it is today. For the proper organization of the entire human society,
Lord Manu established traditional, Dharma-compliant rules and duties in the form of this
Manavadharmashastra5, which have governed social conduct since ancient times. The
Dharmashastra serves as the ultimate authority in determining what is to be done (Vihita
Karma - duties) and what is not to be done (Avihita Karma - non-duties). Therefore, it has been
stated:

Prāmāṇyaṁ hi dharmaśāstrasya kāryākārya-vyavasthitau

Just as the term Shruti refers to the Vedas, the term Smriti refers to Dharmashastra.
There are many Smritis, but Manusmriti holds the highest significance because the Dharma
prescribed by Lord Manu is entirely based on the Vedas. He himself is omniscient. 6

Human life has four goals—Dharma, Artha, Kama, and Moksha. These four
Purusharthas have been expounded in Manusmriti, along with the prescribed means to attain
them. By following these prescribed paths and performing actions accordingly, one achieves
Purushartha and maintains social order. On the other hand, actions that contradict these
regulations lead to disorder and insecurity in society.

DHARMA

The first and foremost objective (Abhīṣṭa) of a human being is Dharma. Hence, the first
Purushartha (goal of life) is Dharma. It is the inherent nature of every sentient being to always
feel a sense of deficiency in its current state and to long for a higher state of existence.
Therefore, in this world, wherever a person is and in whatever circumstances they may be, they
are always eager to rise above their current condition and achieve progress—this longing for
advancement is known as Abhyudaya (worldly prosperity). The means by which a person
attains this desired progress is called Dharma7, whereas the opposite of this, which leads to a
person’s downfall and degradation, is known as Adharma.

5
Svāyambhuvo manurdhīmānidaṁ śāstramakalpayat. (Manusmṛti 1.102)
6
Yaḥ kaścit kasyacid dharmo manunā parikīrtitaḥ, sa sarvo'bhihito vede sarvajñānamayo hi saḥ. (Manusmṛti
2.7)
7
That is, the unseen merit (puṇya) generated from good deeds. This Dharma itself is the cause of all kinds of
progress for a human.

2
 For this reason, Sage Kapila has explained that human progress and decline are the
results of Dharma and Adharma, respectively:

Dharmeṇa gamanam ūrdhvaṁ, gamanam adhastāt bhavaty adharmeṇa.

(Sankhya Karika)

This concept is also mentioned in the Vayu Purana:

Dhāraṇād dhṛtir ity arthād dhātor dharmaḥ prakīrtitaḥ।

Adhāraṇe 'amahattve ca, adharma iti cocyate।।

There are two types of progress (Unnati):

1. Abhyudaya8 – The prosperity a person attains through virtuous conduct and good deeds while
remaining within the realm of the universe, the material world, and the sphere of nature
(Prakriti).

2. Nihśreyasa9 – The supreme bliss and infinite joy beyond the confines of nature and the
universe, leading to the ultimate realization of Brahman (the Absolute). This state is known as
Tripaad Vibhuti—the transcendental and boundless divine bliss.

The one and only means to attain both these forms of progress is called Dharma.10
Dharma possesses immense power. It enables a person to achieve both Abhyudaya (worldly
success) and Nihśreyasa (spiritual liberation). The practice of Dharma leads to the full
development of human potential. Hence, Dharma is the key to all Purusharthas (goals of life).
The conduct (Achara) established by Shruti (Vedic scriptures) and Smriti (sacred traditions) is
regarded as the supreme Dharma. Those who desire the welfare of all beings11 must adhere to
this Achara Dharma (righteous conduct).12 In this context, Dharma has been elaborated under
various classifications, such as:

 Varnadharma (duties based on social classification)

 Ashramadharma (duties based on stages of life)
 Varnashramadharma (the combined system of Varna and Ashrama)
 Gunadharma (duties based on inherent qualities)

8
Abhyudayaḥ – abhitaḥ + udayaḥ. Abhyudaya means complete advancement, overall progress, and elevation.
9
Niḥśreyasa means definite supreme good—an eternal, unchanging goal, leading to ultimate bliss, supreme
attainment, realization of Bhagavān, or liberation (mokṣa).
Or, that which is the highest good, beyond which there is nothing greater.
10
The word Dharma originates from the root "dhūñ dharaṇe," meaning that which upholds, nourishes, or
supports.
11
Sarvabhūtahite ratāḥ. (Gītā 5.25, 12.4)
12
Ācāraḥ paramo dharmaḥ śrutyuktaḥ smārta eva ca, tasmādasmin sadā yukto nityaṁ syādātmavān dvijaḥ.
(Manusmṛti 1.108)

3
 Nimittadharma (duties based on specific circumstances)
 Samanya Dharma (universal moral duties)

The scriptures also elaborate on the merits and demerits of actions, as well as the
traditional, eternal conduct of the four Varnas (social groups).13 Among these, ten fundamental
Samanya Dharmas (universal virtues) are considered essential for the proper functioning of
society:

Dhriti (patience), Kshama (forgiveness), Dama (self-control), Asteya (non-stealing),

Shaucha (purity), Indriya Nigraha (control over senses), Dhi (wisdom—knowledge of
scriptures and principles), Vidya (self-knowledge), Satya (truthfulness), Akrodha
(absence of anger)

These ten virtues are absolutely essential for social harmony.14 All wise individuals are
well aware of them. Those who study and practice these tenfold Dharmas ultimately attain the
supreme goal—Moksha (liberation).15

ARTHA

The greatest and most excellent quality of Artha is that it becomes the centre of
attraction for virtues and virtuous individuals. All virtues and virtuous people naturally
gravitate toward those who possess Artha, as if they were servants. Moreover, the faults of
wealthy individuals also turn into virtues, meaning they become concealed. Shukracharya has
said:

Tiṣṭhanti sadhanadvāre guṇinaḥ kiṅkarā iva।

Doṣā api guṇāyante।। (Shukraniti 1.79)

For this reason, the scriptures extol the greatness of Artha. It is even said that great
scholars, ascetics, and elders stand at the door of a wealthy person like humble servants, with
folded hands:

Vidyāvṛddhās tapovṛddhā vayovṛddhās tathaiva ca।

Sarve te dhanavṛddhasya dvāri tiṣṭhanti kiṅkarāḥ।।

Thus, everything is attainable through Artha:

13
Asmin dharmo'khilenokto guṇadoṣī ca karmaṇām, caturṇāmapi varṇānāmācāraścaiva śāśvataḥ. (Manusmṛti
1.107)
14
Dhṛtiḥ kṣamā damo'steyaṁ śaucamindriyanigrahaḥ, dhīrvidyā satyamakrodho daśakaṁ dharmalakṣaṇam.
(Manusmṛti 6.92)
15
Daśa lakṣaṇāni dharmasya ye viprāḥ samadhīyate, adhītya cānuvartante te yānti paramāṁ gatim. (Manusmṛti
6.93)

4
Yasyārthās tasya mitrāṇi yasyārthās tasya bāndhavāḥ।
Yasyārthāḥ sa sukhī loke yasyārthāḥ sa ca paṇḍitaḥ।।

For this reason, the sage Chanakya has said that a wealthy person is highly respected
by everyone:

Arthavān sarvalokasya bahusammataḥ।

(Chanakya Sutras 4/22)

Artha also possesses a unique power—it subjugates everyone but remains independent
itself. Even fruitless trees incline16 toward Artha with desire, so what to say of human beings?
Acharya Somadeva has said:

Artheṣu upabhogarahitās taravo'pi sābhilāṣāḥ kiṁ punar manuṣyāḥ?

Shukraniti places great emphasis on the acquisition of Artha. Sage Shukracharya opines
that in this world, all men are servants of wealth, but wealth is not the servant of anyone.
Therefore, one must always strive to acquire Artha:

Arthasya puruṣo dāso dāsas tv artho na kasyacit।

Atorthāya yatetaiva sarvadā yatnam āsthitaḥ।। (Shukraniti 2.83)

This same principle has been affirmed by Bhishma Pitamah in the Mahabharata. He
told King Yudhishthira:

Arthasya puruṣo dāso dāsas tv artho na kasyacit।

Iti satyaṁ mahārāja baddho'smy arthen kauravaiḥ।।
(Mahabharata, Bhishma Parva)

Indeed, even if a man possesses numerous vices, Artha has the power to elevate even
those without virtues to the status of highly revered individuals. With the acquisition of Artha,
even a most insignificant person becomes great, and even one without noble lineage is
considered noble. Acharya Somadeva has said:

Na khalu kulācārābhyāṁ puruṣaḥ sarvo'pi sevyatām eti, kintu vittenaiva।

Sa khalu mahān kulīnaś ca yasya dhanam anūnam।।
(Neetivakyamrita - Artha Samuddesha)

That is why even renunciant ascetics become flatterers of the wealthy. Acharya
Somadeva has said:

16
Wherever wealth is buried in the ground, the branches of trees near it lean in that direction.

5
Dhanino yatayo'pi cāṭukārāḥ।
(Neetivakyamrita - Vyavahara Samuddesha 44)

On the other hand, a person without Artha is disregarded by all, even if he is none other
than Indra, the king of the gods. People do not respect a person devoid of Artha:

Māhendram api arthahīnaṁ na bahumanyate lokaḥ.

(Chanakya Sutras 4/33)

Even bees, which seek out fragrance, do not honour a mango tree that lacks blossoms.
Moreover, a wealthy person is respected by all, even if he gives nothing to anyone. Chanakya
has said:

Adātāram api arthavantam ardhinō na tyajanti.

(Chanakya Sutras 426)

Upon entering the householder stage of life, Artha is required for the journey of life,
the sustenance of the family, the performance of daily and occasional rituals, hospitality, and
the execution of charitable and virtuous deeds. However, Artha should never be accumulated
for indulgence. Even Artha obtained through just means should not be excessively hoarded.

Therefore, Manu has instructed Brahmins to live a life of austerity and renunciation. A
Brahmin should be Ashvastanika17 (possessing only daily necessities), Tryaihika18 (possessing
sustenance for three days), Kumbhidhanyaka19 (storing only a small measure of grain), or, at
most, Kusuladhanyaka20 (having just enough for short-term needs. Manu has stated that
contentment is the root of happiness, while discontent is the cause of suffering. Therefore, one
should practice restraint in accumulating wealth.21

KĀMA

The third puruṣārtha (goal of life) is called kāma. Just as Dharma (righteousness) and
Artha (wealth) are both of supreme value as the primary means for the stability of the world,
similarly, kāma is also of utmost importance, as it serves as the principal means of procuring
pleasurable materials essential for the sustenance of life. Without kāma, the creation of living
beings, their survival, and the attainment of happiness would be impossible.

17
One who has food provisions only for one day is called an aśvastanika (living without future concerns).
18
One who has food for three days is called tryaihika
19
One who has grain sufficient for a year is called kumbhīdhānyaka.
20
One who has grain for three years is called kusūladhānyaka.
21
Santoṣaḥ paramāsthāya sukha-arthī saṁyataḥ bhavet, santoṣa-mūlaṁ hi sukhaṁ duḥkha-mūlaṁ viparyayaḥ.
(Manusmṛti 4.12)

6
 According to its etymology— "Kāmyate iti kāmaḥ", that which is desired, kāma
primarily refers to the mental joy arising from the contact between the senses and their
respective objects.

Our senses continually assist us in performing our essential activities. Although the
primary duty of each of our senses is to aid us in our necessary tasks, at the same time, each
sense also derives its own individual pleasure from the contact with its respective objects. The
eyes, created for seeing, experience the joy of form when they behold a beautiful object. The
ears, created for hearing, take pleasure in sound when they listen to melodious music. While
consuming food to satisfy hunger, the tongue, through taste perception, experiences the
pleasure of flavour. Similarly, the nose, created for smelling, enjoys fragrances as it perceives
pleasant scents. The skin, which senses touch, experiences the delight of softness when lying
on a comfortable bed during sleep. Likewise, in the life of a householder, the reproductive
organ derives pleasure from its respective contact for the purpose of procreation.

Thus, while fulfilling their primary objectives through the five sense organs—eyes,
ears, nose, tongue, and skin—humans experience mental joy upon contact with the five sense
objects—form, taste, smell, sound, and touch. This very joy is called kāma, and it is considered
the supreme reward of virtuous actions.

Indriyāṇāṁ ca pañcānāṁ manaso hṛdayasya ca,

Viṣaye vartamānānāṁ yā prītirupajāyate,
Sa kāma iti me buddhiḥ karmaṇāṁ phalamuttamam.
(Mahābhārata, Vana Parva)

This kāma is a resolve of the mind; its nature is extremely subtle. Therefore, it can only
be perceived through experience. That is why the Mahābhārata states:

Dravyārthasparśasaṁyoge yā prītirupajāyate,
Sa kāmaś cittasaṁkalpaḥ śarīraṁ nāsya dṛśyate.
(Vana Parva 33-3)

Meaning, the special delight that arises in the mind upon contact with beloved objects
such as garlands, sandalwood, women, or the attainment of wealth like gold, is kāma, a mental
resolve. It is extremely subtle, and its form and shape are not visible.

The Supreme Lord, residing within the intellect of beings in the form of their desires,
manifests as bliss and is perceived as the result of actions.

Pradhānakālāśayadharmasaṅgrahe śarīra eṣa pratipadya cetanām,

Kriyāphalatvena vibhur vibhāvyate yathānalo dāruṣu tadguṇātmakaḥ.
(Bhāgavata Purāṇa 4-21-35)

Thus, the scriptures declare:

7
Etasyaivānandasya anyāni bhūtāni mātrām upajīvanti.

Just as butter is the essence of curd, similarly, kāma is the essence of Dharma and Artha.
Just as oil is superior to oil cake, ghee is superior to buttermilk, and a tree’s flowers and fruits
are superior to its wood, in the same way, kāma is superior to Dharma and Artha.

Navanītaṁ yathā dadhnaḥ tathā kāmo'rthadharmataḥ,

Śreyaḥ tailaṁ hi piṇyākād ghṛtaṁ śreya udaśvataḥ,
Śreyaḥ puṣpaphalaṁ kāṣṭhāt kāmo dharmārthayor varaḥ.
(Uttara Purāṇa, Prajā Parva 37-35)

Thus, the joy derived from sensory experiences through the sense organs and processed
in the mind is called kāma.

In summary, the mental pleasure obtained through the five sense organs—eyes, ears,
nose, tongue, and skin—upon experiencing their respective sense objects—form, taste, smell,
sound, and touch—is called kāma. It is a mental resolve, extremely subtle, and can only be
experienced.

The means by which kāma (mental joy) is attained through the contact of senses and
objects—such as the desirable things people long for—are also called kāma according to the
etymology "Kāmyante iti kāmāḥ." Based on this, objects that are useful for the body and senses,
such as wife, children, house, land, wealth, food grains, fruits, eatables, beverages, music,
dance, clothes, ornaments, and other desirable worldly and spiritual objects, are also termed
kāma. By this same definition, supernatural attainments like aṇimā (the power to become
minute) and other mystical perfections are also referred to as kāma.

The subtle mental pleasure obtained through the contact of subjects and senses, as well
as the means of sensual pleasure—such as wife, children, home, land, wealth, food and drink,
dance and music, clothing, ornaments, and all desired objects useful for the body and senses—
are also called kāma because they serve as the means of sensual fulfillment. Therefore, both
the object of desire as an end and the object of desire as a means are called kāma. That is,

1. The pleasure derived from the enjoyment of sensory objects, and

2. The means of that pleasure—both are referred to as kāma.
3. Additionally, the mental determination that drives beings towards obtaining this
pleasure and the materials of enjoyment—i.e., the desire for sensory objects, longing,
or craving—is also called kāma, according to the derivation "kāmitam kāmaḥ" (that
which is desired is called kāma). Because:

Vaikārikād vikuṛvāṇān manastattvamajāyata

Yatsankalpavikalpābhyāṁ vartate kāma sambhavaḥ (Bhāgavata 3.26.27)

8
 Meaning, from the resolutions and deliberations of the mind arise kāma, i.e., desire,
longing, craving, aspiration, etc. The word kāma means desire, thirst, craving, aspiration, etc.
This subtle desire (vāsanā-rūpa kāma) is the seed of the entire world. The Ṛgveda states:

Kāmas tadagre samavartatādhi manaso retaḥ prathamaṁ yadāsīt

Sati bandhum asati nirabhindan hṛdā pratīcyā kavayo manīṣā (Ṛgveda...)

That is, kāma is the seed of the mind (manaso retaḥ). It has eternally existed in the
desireless heart of the Supreme Being. Wise sages, through deep contemplation, have realized
this kāma within their hearts as the fundamental force of all. The Śiva Purāṇa states:

Kāmaḥ sarvamayaḥ puṁsāṁ svasankalpa samudbhavaḥ

Kāmāt sarve pravartante līyante vṛddhibhāgatāḥ (Dharma Saṁhitā, 8th Adhyāya)

Thus, the word kāma primarily has three meanings:

1. Pleasure,
2. The means of pleasure, and
3. The desire for pleasure.

The term kāma is used in scriptures with different meanings depending on the context—
sometimes for pleasure, sometimes for its means, and sometimes for the desire for pleasure.
According to this reasoning, since kāma is the essence of pleasure or its primary means, it is
highly desirable for living beings. Additionally, as it is the primary means of satisfying and
nourishing the body and senses, it is extremely essential in worldly life. Because:

Sukhārthāḥ sarvabhūtānāṁ matāḥ sarvāḥ pravṛttayaḥ

That is, all activities of all beings are solely for the pursuit of happiness. Hence, for the
attainment of pleasure through sensory gratification, kāma is indispensable. The result of kāma
is health and well-being. Hence, the Śruti states:

Yadā vai sukhaṁ labhate 'tha karoti, nāsukhaṁ labdhvā karoti, mukham eva babdhvā karoti.

The primary goal of the pravṛtti-mārga (path of worldly engagement) is kāma-derived

pleasure. There is no fault in enjoying these pleasures according to righteousness (dharma),
because the satisfaction of the mind and senses is itself considered the result of sensory
enjoyment. Somadeva Sūri states:

Indriya-prasādana-phalā hi vibhūtayaḥ. (Nīti-Vākyāmṛta Kāma-Samuccaya 06)

Similarly, Maharṣi Kāmandaka states:

Seveta viṣayān kāle muktvā tatparatāṁ vaśī

Sukhaṁ hi phalamarthasya tannirodhe vṛthā śriyaḥ (Nīti Sāra)

9
 With the same understanding, Maharṣi Kauṭilya also states in his Arthaśāstra:

Dharmārthāvirodhena kāmaṁ seveta na niḥsukhaḥ syāt

Pañcame divasasya aṣṭame vā bhāge svairavihāram iti. (Kauṭilya Arthaśāstra 1-7-3)

Kāma is of two types:

1. Divya (transcendental, heavenly), and

2. Mānuṣa (worldly, earthly).

Among these, in comparison to divya kāma, human sensual pleasures are like a drop of
water hanging on the tip of a blade of grass in front of an ocean! That is why Jain Tīrthaṅkara
Mahāvīra Swāmī states:

Jahā kusagge udagṁ samuddeṇa samaṁ miṇe

Evaṁ mānusaggā kāmā devakāmāṇa antie.

Just as a drop of water hanging on the tip of kuśa grass is negligible compared to the
ocean, similarly, human pleasures are insignificant compared to the pleasures of celestial
beings.

Emphasizing the role of kāma as a fundamental human pursuit, Bhagavān Manu states:

Dvitīyam āyuṣo bhāgaṁ kṛtadāro gṛhe vaset. 22

That is, after completing education while following celibacy in the first quarter of life,
one should enter gārhasthya (householder life) in the second quarter through lawful marriage.
One should remain devoted only to one's lawful spouse and engage in conjugal relations only
in the appropriate season.23 By following these principles, many pressing social problems can
be resolved, and billions spent wastefully in the name of family planning can be prevented.

MOKSHA

The fourth Purushartha (goal of life) is called Moksha. It is also referred to as the
supreme Purushartha. Generally, in the dazzling allure of Artha (wealth) and Kama (desires),
most ignorant people consider Moksha to be dry and unappealing. Upon merely hearing its
name, they become fearful. They think, "What joy can there possibly be in Moksha? There will
be no body, nor will there be any dear objects of pleasure. The soul will simply merge into the
Supreme Being. Then what bliss will we derive from it?"

22
Manusmṛti 4.1
23
Ṛtukālābhigāmī syāt svadāraniraḥ sadā, parvavarja vrajecchainā tadvato ratikāmyayā. (Manusmṛti 3.45)

10
 However, all the Vedas, scriptures, the greatest sages, saints, seers, and enlightened
beings—those endowed with extraordinary wisdom—after thoroughly investigating,
analyzing, and experiencing all forms of worldly happiness, have unanimously and
unequivocally established one undeniable and eternal truth:

The highest, most blissful, and most desirable goal of all is Moksha—an infinite and
unbroken state of supreme bliss. For this reason, the Vishnu Purana states:

Iti samsara-duḥkhārka-tāpa-tāpita-chetasam |
Vimukti-pādapachchhāyāmṛte kutra sukhaṁ nṛṇām || (Vishnu Purana 6.5.57)

"For those whose hearts are scorched by the scorching sun of worldly suffering, where else can
they find true happiness apart from the cool shade of the tree of liberation (Moksha)?"

Thus, Moksha is the ultimate sovereign of all goals and all forms of happiness. Its
attainment is extremely rare and is only achieved by a few fortunate souls. For the majority, it
remains an ideal.

The definition of Moksha is:

Mucyate sarvair duḥkha-bandhanaiḥ yatra saḥ Mokṣaḥ?

"That state wherein a being is completely liberated from all forms of suffering and bondage is
called Moksha."

For this reason, it is also referred to as Mukti (liberation). The word Mukti is derived
from the root ‘muc’ (to release), combined with the suffix ‘ktin’, meaning the release of a bound
soul from all forms of bondage. What is Bondage? Bondage is dependency. Is the soul free or
dependent? The answer is that the soul is bound. Although the body and the soul are distinct,
the soul is deeply entangled within the limitations of the body and the senses, making it
completely dependent. As Goswami Tulsidas states:

Paravash jīva, svavash Bhagavanta

"The soul is dependent, whereas God is fully independent."

Even the greatest of emperors cannot break free from this bondage by mere willpower.
Once their time is up, they cannot extend their stay in this body by even a single hour at their
discretion. Thus, to take on a body itself is the greatest bondage for the soul. As long as this
bondage exists, the soul cannot experience eternal bliss and absolute happiness. Moksha as the
Final Goal

11
 After extensively describing Varnashrama Dharma, Rajadharma, Apaddharma, and
various other aspects of life, Sage Manu ultimately defines Moksha as the final goal of human
life.

Through actions (Pravritti Dharma), a person attains the status of celestial beings in
heavenly realms. However, by following the path of renunciation (Nivritti Dharma), one
transcends the limitations of the five elements and attains Moksha.24 A soul who perceives all
living beings within itself and itself within all living beings attains Brahmanhood—the
sovereignty of the Supreme Being, which is Moksha.25 Sage Manu summarizes this in the
following verse:

Evaṁ yaḥ sarvabhūteṣu paśyatyātmānamātmanā |

Sa sarva-samatāmetya brahmābhyeti paraṁ padam || (Manusmriti 12.125)

"He who sees the soul in all beings and all beings in the soul attains the highest state of
Brahman."

The Manusmriti provides a comprehensive exposition on the fourfold Purusharthas

(goals of life) and delineates the righteous means for their attainment. Thus, questioning its
relevance stems only from ignorance. The Manusmriti remains eternally applicable as a
universal guide to human life.

24
Pravṛttaṁ karma saṁsevya devānāmeti sāmyatām, nivṛttaṁ sevamānastu bhūtānyatyeti pañca vai. (Manusmṛti
12.90)
25
Sarvabhūteṣu cātmānaṁ sarvabhūtāni cātmani, samaṁ paśyannātmayājī svārājyamadhigacchati. (Manusmṛti
12.91)

12
 (Concept of “Purushaarth”)

iq#"kkFkZ&prq„; dh vo/kkj.kk - Prof. (Dr.) Shankar Kumar Mishra

Department of Dharmashatra mimansa SVDV
BHU Varanasi Uttar Pradesh
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fofgr&vfofgr deZ vFkkZr~ drZO; vkSj vdrZO; esa fu.kkZ;d /keZ’kkL= gh gksrk gSA vr,o dgk
x;k gS &
^izkek.;a fg /keZ’kkL=L; dk;kZdk;ZO;ofLFkrkSA*
^Jqfr* 'kCn ls tSls osn dk cks/k gksrk gS] oSls gh ^Le`fr* 'kCn ls /keZ’kkL= dkA Le`fr;k¡
vusd gSa] buesa euqLe`fr dk lokZf/kd egÙo gS] D;ksfa d Hkxoku~ euq us ftldk tks /keZ cryk;k gS]
og lc dqN osnewyd gh gS] os Lo;a loZKkue;7 gSaA
ekuo&thou ds pkj y{; gSa& /keZ] vFkZ] dke vkSj eks{kA bu pkjksa iq#"kkFkksZa dk izfriknu
euqLe`fr esa fd;k x;k gS vkSj bUgsa izkIr djus ds fy;s fofgr ekxksZa dk funsZ’k Hkh fn;k x;k gSA
bl fu;e&funsZ’k ds vuqlkj fd;s x;s deksZa ls iq#"kkFkZ dh izkfIr gksrh gS vkSj lkekftd
lqO;oLFkk cuh jgrh gSA fu;e&fo#) O;ogkj djus ls lekt esa vO;oLFkk vkSj vlqj{kk iSnk
gksrh gSA
/keZ
iq#"k dk igyk vHkh„ /keZ gSA vr% igyk iq#"kkFkZ /keZ gSA izR;sd psru dk ;g LoHkko gS
fd og viuh orZeku ifjfLFkfr esa lnSo U;wurk dk vuqHko djrk gS vkSj mlls mPp ifjfLFkfr
dks izkIr djus ds fy, ykykf;r jgrk gSA vr% lalkj esa tks euq"; tgka Hkh] ftl ifjfLFkfr esa
gS] ogka ls Åij mBus dh] méfr dks izkIr djus dh] vFkkZr~ vius vH;qn; dh ykylk mldks
yxh jgrh gSA euq"; dh ml vfHkyf"kr méfr dk tks euq"; lk/ku gS] ogh /keZ8 gS] vkSj tks
blds foijhr Qyokyk gS] euq"; dh voufr dk&v/kksxfr dk dkj.k gS] mldk uke v/keZ gSA
blhfy, egf"kZ dfiy us euq"; dh méfr vkSj voufr dks /keZ vkSj v/keZ dk Qy cryk;k gS &
^/kesZ.k xeuew/oZa xeue/kLrkr~ HkoR;/kesZ.kA* ¼lka[;&dkfjdk½
;gh ckr ok;qiqjk.k esa Hkh dgh gS &
^/kkj.kkn~ /k`frfjR;FkkZn~ /kkrks/kZeZ% izdhfrZr%A
v/kkj.ks·egÙos p] v/keZ bfr pksP;rsAA*

6
& Lok;EHkqoks euq/khZekfuna 'kkL=edYi;r~A ¼euqLe`fr 1@102½
7
& ;% df’pr~ dL;fpn~ /keksZ euquk ifjdhfrZr%A l loks·Z fHkfgrks osns loZKkue;ks fg l%AA ¼euq0 2@7½
8
& vFkkZr~ lRdeZ ls mRié gksus s okyk ^viwoZ* ¼iq.;½ uked vkRe&xq.kA ;g /keZ gh euq"; dh loZfo/k méfr dk dkj.k gSA
2

14
 méfr nks izdkj dh gksrh gSA ,d dk uke gS & vH;qn;9 vkSj nwljs dk uke gS &
fu%Js;l%10A fo’o es]a czãk.M ds vUnj] izd`fr e.My esa vFkkZr~ izd`fr ds nk;js esa jgdj euq";
vius lnkpj.k ls] lRdeZ ls] ftl méfr dks izkIr djrk gS] mldks ^vH;qn;* dgrs gSa] vkSj
izd`fr dh lhek dks Hksnu djds izd`fr dh ifjf/k ls] ifjfPNérk ls gVdj czãk.M ds ckgj tks
vikj lq[kjkf’k gS] vFkkZr~ czã dh fu%lhe] fujfr’k; lq[kkuUn&Lo#i tks f=ikn~ foHkwfr gS]
mldh izkfIr dks gh fu%Js;l dgrs gSaA bu nksuksa izdkj dh méfr;ksa dks izkIr djus dk tks
,dek= lk/ku gS] mlh dks ^/keZ*11 dgrs gSaA
/keZ esa vikj 'kfä gSA og euq"; dks mlds vH;qn; vkSj fu%Js;l bu nksuksa izdkj dh
méfr;ksa esa igq¡pk nsrk gSA /keZ ds ifjikyu ls gh euq"; dh ekuork dk fodkl gksrk gSA vr%
/keZ lHkh iq#"kkFkksZa dh dqath gSA
Jqfr vkSj Le`fr }kjk izfrikfnr vkpkj dks ije /keZ ekuk x;k gSA vkRefgr vFkkZr~ lcdk
fgr pkgus okyksa dks12 bl vkpkj /keZ dk vuqikyu vo’; djuk pkfg;sA13 izlaxr% blesa o.kZ/keZ]
vkJe/keZ] o.kkZJe/keZ] xq.k/keZ] fufeÙk/keZ rFkk lkekU; /keZ dk fo’kn izfriknu fd;k x;k gSA
deksZa ds xq.k ,oa nks"k vkSj pkjksa o.kksZa ds ijEijkxr lukru vkpkj cryk;s x;s gSaA 14 bu /keksZa esa
/k`fr] {kek] ne] vLrs;] 'kkSp] bfUnz;fuxzg] /kh ¼’kkL= vkfn dk rRoKku½] fo|k ¼vkReKku½] lR;
vØks/k&;s nl lkekU; /keZ gSa tks lkekftd lqO;oLFkk ds fy;s furkUr vko’;d gSaA 15 bls lHkh
foosdh O;fDr HkyhHkk¡fr tkurs gSaA bu n’kfo/k /keksZa dk v/;;u djds vkpj.k djus okys ije
xfr&eks{k dks izkIr djrs gSaA16
vFkZ
vFkZ esa ,d lcls egku~] lcls mÙke xq.k ;g gS fd og xq.kksa ,oa xq.khtuksa ds vkd"kZ.k
dk dsUnz gSA vFkZ okyksa ds ikl lc xq.k vkSj xq.khtu fdadjksa dh rjg nkSM+&nkSM+dj Lo;eso
igq¡p tkrs gSaA blds lkFk gh lkFk vFkZoku~ euq";ksa ds nks"k Hkh xq.k cu tkrs gSa] vFkkZr~ fNi tkrs
gSaA 'kqØkpk;Z us dgk gS &
fr…fUr l/ku}kjs xqf.ku% fdadjk boA
nks"kk vfi xq.kk;Urs-----------------------------AA* ¼’kq0uh0 1]79½

9
& vH;qn; dk vFkZ gS & vfHkr% mne& vFkkZr~ lc rjg ls vkxs c<+uk] méfr dks izkIr gksukA
10
& fu%Js;l dk vFkZ gS & ^fuf’pra Js;% fu%Js;le~A* fuf’pr Qy vFkkZr~ tks dHkh Hkh {kh.k ugha gksrk ,sls ije vkuUn dh] loksZPp y{; dh
izkfIr] HkxoRizkfIr vFkok eks{k dh izkfIrA vFkok] ukfLr Js;ku~ ;Lekr~ rr~ fu%Js;le~ ftlls c<+dj vkSj dksb Z mÙke Qy u gksA
11
& /keZ 'kCn /k`_k~ /kj.ks] bl /kkrq ls cuk gSA bldk vFkZ gksrk gS /kkj.k djus okyk] ikyu&iks"k.k djus okykA vFkok voyEcu nsus okykA
12
& loZHkwrfgrs jrk% ¼xhrk 5@25] 12@4½
13
& vkpkj% ijeks /keZ% JqR;qä% LekrZ ,o pA rLeknfLeu~ lnk ;qäks fuR;a L;knkReoku~ f}t%AA ¼euq0 1@108½
14
& vfLeu~ /keks·Z f[kysuksäks xq.knks"kkS p deZ.kke~A prq.kkZefi o.kkZukekpkj’pSo 'kk’or%AA ¼euq0 1@107½
15
& /k`fr% {kek neks·Lrs;a 'kkSpfefUnz;fuxzg%A /khfoZ|k lR;eØks/kks n'kda /keZy{k.ke~AA ¼euq0 6@92½
16
& n’k y{k.kkfu /keZL; ;s foizk% le/kh;rsA v/khR; pkuqorZUrs rs ;kfUr ijeka xfre~AA ¼euq0 6@93½
3

15
 blh ls 'kkL=ksa esa vFkZ dh cM+h efgek xk;h gSA ;gk¡ rd dg fn;k gS fd ^cM+& s cM+s
fo|ko`)] rikso`) vkSj o;kso`) iq#"k Hkh /kuo`) ds njokts ij fdadjksa ds leku] gkFk tksM+s [kM+]s
jgrs gSa &
^fo|ko`)kLrikso`)k o;kso`)kLrFkSo pA
losZ rs /kuo`)L; }kfj fr…fUr fdadjk%AA*
vr% vFkZ ls lc dqN lqyHk gS &
^;L;kFkkZLrL; fe=kf.k ;L;kFkkZLrL; ckU/kok%A
;L;kFkkZ% l lq[kh yksds ;L;kFkkZ% l p if.Mr%AA*
blh ls egf"kZ pk.kD; us dgk gS fd] vFkZoku~ dk lHkh yksx fo’ks"k lEeku djrs gSa &
^vFkZoku~ loZyksdL; cgqlEer%A* ¼pk0lw0 4@22½
vFkZ esa ;g Hkh ,d foy{k.k lkeF;Z gS] fd og lHkh dks vius v/khu dj ysrk gS vkSj Lo;a
fdlh ds v/khu ugha gksrkA blh ls vFkZ dh vksj miHkksx&jfgr o`{k Hkh lkfHkyk"k gks tkrs gSa &
>qd17 tkrs gSa] rc fQj euq";ksa dh rks ckr gh D;k gS\ Jh lksenso lwjh us dgk gS &
^vFksZ"kq miHkksxjfgrkLrjoks·fi lkfHkyk"kk% fda iqueZuq";k%\*
'kqØuhfr esa vFkZ ds miktZu ij cM+k tksj fn;k x;k gSA egf"kZ 'kqØkpk;Z dk er gS fd
^lalkj esa lHkh euq"; vFkZ ds nkl gSa] ijUrq vFkZ fdlh dk nkl ugha gksrkA vr% euq"; dks
vFkksZiktZu ds fy, lnSo iz;Ru djuk pkfg,* &
^vFkZL; iq#"kks nklks nklLRoFkksZ u dL;fpr~A
vrks·FkkZ; ;rsrSo loZnk ;RuekfLFkr%AA* ¼’kq0 uh0 2@83½
blh ckr dks egkHkkjr esa Hkh"e firkeg us Hkh iq„ fd;k gSA mUgksua s jktk ;qf/kf…j ls dgk
gS fd ^egkjkt] euq"; vFkZ dk nkl gSA ijUrq vFkZ fdlh dk nkl ugha gS] ;g ckr fcYdqy lR;
gS] D;ksfa d eq> ljh[ks fojDr n`<+ozr] vkcky czãpkjh vFkkZr~ ftrsfUnz;&iq#"k dks Hkh dkSjoksa us
v/kfeZ;ksa us] vFkZ ls ck¡/k fy;k gS& vius v/khu dj fy;k gS*&
^vFkZL; iq#"kks nklks nklLRoFkksZ u dL;fpr~A
bfr lR;a egkjkt c)ks·LE;FksZu dkSjoS%AA* ¼e0Hkk0] Hkh"eioZ½
Bhd gh gSA euq";ksa esa pkgs fdrus gh nqxqZ.k D;ksa u Hkjs gks]a vFkZ esa og 'kfDr gS fd og
xq.k&foghu] O;fDr;ksa dks Hkh cM+&
s cM+s xq.kokuksa dk vkJ;.kh; ¼iwtuh;½ cuk nsrk gSA vFkZ izkIr
17
& Hkwfe esa tgka ij /ku xM+k gks] ;k dksbZ fuf/k gks] rks mlds ikl ds o`{kksa dh 'kk[kk,a ml vksj >qd tkrh gSA
4

16
gks tkus ls vfr{kqnz O;fDr Hkh egku~ vkSj vdqyhu Hkh dqyhu cu tkrs gSaA lksenso lwjh us dgk gS
fd &
^u [kyq dqykpkjkH;ka iq#"k% loksZ·fi lsO;rkesfr] fdUrq foÙksuSoA*
^l [kyq egku~ dqyhu’p ;L; /kueuwue~A* ¼uhfrokD;ke`r&vFkZ&lewís’k½
vFkkZr~ lHkh euq"; mÙke&dqy ,oa lnkpkj ek= ls gh yksdkjk/; ugha gks ldrs] vfirq
dsoy ,d foÙk ls gh euq"; yksd&iwT; gks ldrk gSA blfy, lalkj esa lcls egku~ vkSj dqyhu
ogh fxuk tkrk gS] fd ftlds ikl /ku dh deh u gksA
blh dkj.k fojä laU;klh Hkh /kuoku~ yksxksa ds pkVqdkj cu tkrs gSaA lksenso lwjh us dgk
gS &
^/kfuuks ;r;ks·fi pkVqdkjk%A* ¼uh0ok0O;o0leq044½
blds foijhr vFkZ&foghu O;fDr dks dksbZ Hkh ugha iwNrk pkgs og nsojkt bUnz gh D;ksa
u gks] yksx mldk vknj ugha djrs &
^egsUnzefi vFkZghua u cgqeU;rs yksd%A* ¼pk0 lw0 4@33½
vFkZghu euq"; dks vkSj rks D;k] lk{kkr~ mldh lg/kfeZ.kh] iRuh Hkh viekfur djrh gSA
egf"kZZ pk.kD; us dgk gS fd &
^v/ku% LoHkk;Z;kfi voeU;rs* ¼pk0lw0 4@60½
fu/kZu euq"; pkgs fdruh Hkh vPNh ckr D;ksa u dgs] ijUrq mls dksbZ Hkh xzg.k ugha
djrk&
^fgreI;/kuL; okD;a u x`ársA* ¼pk0lw0 459½
xq.kxzkgh Hkzej Hkh iq"i&foghu vkez&o`{k dk leknj ugha djrsA blds vfrfjä vFkZoku~
O;fDr ;fn fdlh dks dqN Hkh u ns] rks Hkh lHkh yksx mldk cM+k lEeku djrs gSaA pk.kD; us
dgk gS fd &
^vnkrkjefi vFkZoUre~ vf/kZuks u R;tfUrA* ¼pk0lw0 426½
x`gLFkkJe esa vkus ij thou ;k=k] ifjokj ds Hkj.k&iks"k.k rFkk fuR;&uSfefÙkdkfn deksZa
ds vuq"Bku vkSj vfrfFk&lRdkj ,oa nkukfn lRdeksZa ds lEiknu ds fy;s /ku dh vko’;drk
gksrh gSA Hkksxksa ds fy, dnkfi vFkZ dk laxzg u djsA U;kÙ;&o`fÙk;ksa ls izkIr /ku dk Hkh vf/kd
lap; djuk fuf"k) gSA vr% euq us czkã.k dks riL;k ,oa R;kx&o`fÙk ls jgus dk funsZ’k fn;k gSA
mls v’oLrfud18 ;k «;Sfgd19 vFkok dqEHkh/kkU;d20 ok vf/kd ls vf/kd dqlwy/kkU;d21 gksuk

18
& dsoy ,d fnu ds fy, ftlds ikl Hkkstu&lkexzh gks og v’oLrfud gSA
5

17
pkfg;sA f}tkfr ls fHké ds fy, Hkh /ku&lap; dk fu"ks/k djrs gq, mUgksua s dgk gS fd larks"k gh
lq[k dk ewy vkSj vlarks"k gh nq%[k dk dkj.k gSA vr% vf/kd laxzg djus esa la;eh cusA22
dke
rhljs iq#"kkFkZ dk uke dke gSA ftl izdkj /keZ vkSj vFkZ ;s nksuksa iq#"kkFkZ yksd&fLFkfr ds
eq[; lk/ku gksus ls ije mikns; gSa] mlh izdkj ^dke* Hkh izkf.k;ksa dh yksd;k=k ¼vFkkZr~ thou
fuokZg½ esa mi;ksxh lq[k&lkefxz;ksa dk eq[; lk/ku gksus ls vR;Ur mikns; gSA dke ds fcuk
izkf.k;ksa dh mRifÙk] thou&fuokZg ,oa lq[k dh izkfIr gh vlEHko gSA
^dkE;rs bfr dke%* bl O;qRifÙk ds vuqlkj fo"k; vkSj bfUnz;ksa ds lEidZ ls mRié gksus okyk
ekufld vkUkUn gh eq[;r;k dke dgykrk gSA
ge yksxksa ds visf{kr dk;ksZa dks djus ds fy, bfUnz;k¡ gekjh lgk;rk djrh jgrh gSaA
gekjh izR;sd bfUnz; dk iz/kku drZO; gekjs vko’;d dk;ksaZ esa gekjh lgk;rk djuk gksus ij Hkh
mlds lkFk gh lkFk gekjh izR;sd bfUnz; dks] vius&vius fo"k; ds lEIkdZ ls ,d&,d futh
lq[kkuqHko Hkh izkIr gksrk gSA ns[kus ds fy, cus gq, us= lqUnj oLrq dks ns[kdj #i ds vkuUn dk
vuqHko djrs gSaA lquus ds fy, cus gq, gekjs Jks= e/kqj laxhr dks lqudj 'kCn dk vkuUn ysrs
gSaA {kq/kk&’kkfUr ds fy, fd;s tkus okys Hkkstu esa gekjh jlusfUnz;] vkgkj ds Lokn dks xzg.k
djrs le; jl ds vkuUn dk vuqHko djrh gSA ,sls gh lw¡?kus ds fy, cuh gqbZ gekjh
ukfldk&bfUnz; lqUnj xU/k dks xzg.k djrh gqbZ mldk vkuUn ysrh gSA Li’kZ Kku ds fy, cuh
gekjh RofxfUnz; funzk ds le; lqUnj 'k¸;k ds eknZo dk vuqHko djrh gqbZ lq[k dk jl ysrh gS]
vkSj lUrku izkIr djus ds fy, fd;s tkus okys x`gLFkkJe ds thou esa x`áfUnz; vius fo"k; dk
vkuUn ysrh gSA
bl izdkj vk¡[k] dku] ukfldk] jluk vkSj Ropk bu ik¡p KkusfUnz;ksa ds }kjk vius iz/kku
mís’; dks lEié djrs le; #i] jl] xU/k] 'kCn vkSj Li’kZ bu ik¡p fo"k;ksa ds lEidZ ls feyus
okys ekufld vkuUn dks gh dke dgrs gSaA ;g dke izkf.k;ksa ds iq.;&deksZa dk mÙke Qy gS &
^bfUnz;k.kka p i_pkuka eulks ân;L; pA
fo"k;s orZekukuka ;k çhfr#itk;rsA
l dke bfr es cqf)% deZ.kka QyeqÙkeeAA* ¼e0Hkk0ou i0½
;g dke fpÙk dk ,d ladYi gS] bldk Lo#i vR;Ur gh lw{e gSA vr,o og dsoy
vuqHko&xE; gSA blhfy, egkHkkjr esa dgk gS fd &

19
& dsoy rhu fnuksa ds fy;s Hkkstu&lkexzh j[kus okyk «;Sfgd dgykrk gSA
20
& o"kZ Hkj fuokZg&;ksX; /kkU;okys dks dqEHkh/kkU;d dgk x;k gSA
21
& rhu o"kksZa rd fuokZg&;ksX; /kkU;okyk dqlwy/kkU;d dgykrk gSA
22
& larks"ka ijekLFkk; lq[kkFkhZ la;rks Hkosr~A larks"kewya fg lq[ka nq%[kewya foi;Z;%AA ¼euq0 4@12½
6

18
 ^nzO;kFkZLi’kZla;ksxs ;k izhfr#itk;rsA
l dkef’pÙkladYi% 'kjhja ukL; í`’;rsA* ¼ouioZ 33&3½
vFkkZr~] L=d] pUnu] ofurk vkfn fiz;&inkFkksaZ ds Li’kZ vkSj lqo.kkZfn /ku dk la;ksx
¼ykHk½ gksus ij eu esa tks ,d fo’ks"k izhfr mRié gksrh gS] og fpÙk dk ,d ladYi gh dke gSA
og vR;Ur lw{e gSA mldk #i vkdkj fn[kyk;h ugha iM+rkA
Hkxoku~ gh izkf.k;ksa ds 'kjhj esa fo"k;kdkj cuh gqbZ cqf) esa vofLFkr gksdj mlesa vfHkO;ä
vkuUn#i gks djds deksZa ds Qy ds #i esa izrhr gksrs gSa &
^iz/kkudkyk’k;/keZl³~xzgs 'kjhj ,"k izfri| psruke~A
fØ;kQyRosu foHkqfoZHkkO;rs ;Fkkuyks nk#"kq rn~xq.kkRed%AA ¼Hkkx0 4&21&35½
blfy, Jqfr dgrh gS fd &
^,rL;SokuUnL; vU;kfu Hkwrkfu ek=keqithofUrA*
tSls ngh dk lkj eD[ku gS] mlh izdkj /keZ vkSj vFkZ dk lkj ^dke* gSA tSls [kyh ls
Js… rsy gS] rØ ls Js… ?k`r gS vkSj o`{k ds dk… ls Js… mldk Qwy vkSj Qy gS] mlh izdkj /keZ
vkSj vFkZ ls Js… dke gS &
^uouhra ;Fkk n?kzLrFkk dkeks·FkZ/keZr%A
Js;LrSya fg fi.;kdkn~ ?k`ra Js; mnf’or%A
Js;% iq"iQya dk…kr~ dkeks /kekZFkZ;ksoZj%AA* ¼m0iz0iztk0 ioZ 37&35½
bl jhfr ls bfUnz;ksa }kjk vUr% dj.k esas izkIr gksus okys fo"k; lq[kksiHkksx ds vkuUn dks gh
dke dgrs gSaA
lkjka’k] vk¡[k] dku] ukfldk] ft£k vkSj Ropk bu ikap KkusfUnz;ksa }kjk #i] jl] xU/k]
'kCn vkSj Li’kZ bu ikap fo"k;ksa ds miHkksx ls feyus okys ekufld vkuUn dks dke dgrs gSaA ;g
fpÙk dk ladYi #i gSA bldk Lo#i vR;Ur lw{e gSA vr% ;g vuqHkoxE; gSA
iwoksZä fo"k; vkSj bfUnz;ksa ds lEidZ ls izkIr gksus okys dke ds ¼ekufld vkUkUn ds½ tks
lk/ku gaS] ;kfu bl dke dks ¼eq[; lq[k dks½ izkIr djus ds fy, yksx ftu&ftu vfHkyf"kr
oLrqvksa dh bPNk djrs gSa] mUgsa Hkh ^dkE;Urs bfr dkek%* bl O;qRifÙk ds vuqlkj dke dgrs gSaA
bl izflf) ds vuqlkj 'kjhj vkSj bfUnz;ksa ds mi;ksx esa vkus okys L=h] iq=] x`g] {ks=] /ku&/kkU;]
Qy&Qwy] Hk{;&HkksT;] ysá&pks";] is;] u`R;] xhr] oL=] vyadkj vkfn&tks 'kjhj vkSj bfUnz;ksa
ds mi;ksxh ,sgykSfdd vkSj ikjykSfdd vfHkyf"kr inkFkZ gSa] mudks Hkh dke dgrs gSaA blh
O;qRifÙk ds vuqlkj vf.kek vkfn flf);ksa dks Hkh dke dgrs gSaA
7

19
 bl izdkj fo"k; vkSj bfUnz;ksa ds lEidZ ls izkIr gksus okys ekufld lw{e vkuUn vkSj ml
dke lq[k ds lk/kuHkwr tks L=h] iq=] x`g] {ks=] /ku&/kkU;] Hk{;&HkksT;] iku] u`R;&xhr] oL=]
vyadkj vkfn 'kjhj vkSj bfUnz;ksa ds mi;ksxh leLr bfPNr inkFkZ gSa] mudks Hkh dke#i iq#"kkFkZ
ds lk/ku gksus ls] dk;Z vkSj dkj.k dh vHksn&foo{kk ls dke dgrs gSaA vr% QyRosu bPNk ds
fo"k; rFk lk/kuRosu bPNk ds fo"k; ;s nksuksa gh dke dgykrs gSaA ;kuh 1- fo"k;ksa ds miHkksx ls
izkIr gksus okyk vkUkUn vkSj 2- mlds lk/ku bu nksuksa dks gh dke dgrs gSaA 3- lkFk gh izkf.k;ksa
dks bl lq[k vkSj lq[kksiHkksx dh lkefxz;ksa ds lEiknu dh vksj izfs jr djus okyk tks ekufld
ladYi gS vFkkZr~ fo"k;kfHkyk"k#i bPNk] dkeuk vFkok okluk gS] mldks Hkh ^dkfera dke%* bl
O;qRifÙk ds vuqlkj dke dgrs gSaA D;ksfa d &
^oSdkfjdkn~ fodqokZ.kkUeuLrRoetk;rA
;RladYifodYikH;ka orZrs dke&laHko%AA* ¼Hkkx0 3@26]27½
vFkkZr~ eu ds gh ladYi vkSj fodYi ls dke vFkZkr~ bPNk] dkeuk] okluk] euksjFk vkfn
vkUrfjd dke dh mRifÙk ¼tkx`fr½ gksrh gSA bl dke 'kCn dk vFkZ gS bPNk] r`".kk] okluk]
,"k.kk vkfnA ;g okluk#i lw{e dke gh lkjs lalkj dk cht gSA _Xosn esa dgk gS fd &
^dkeLrnxzs leorZrkf/k eulks jsr% izFkea ;nklhr~A
lrh cU/kqelfr fujfHkUnu~ ânk izrhP;k do;ks euh"kkAA* ¼_Xosn-----½
vFkkZr~ dke eu dk] fpÙk dk cht gS ¼eulks jsr%½ og ijEkkRek ds fu"dke ân; esa igys
lnk ls gh] orZeku gSA RkRoosÙkk euhf"k;ksa us xgjh [kkst djds vius ân; esa lcds cU/kq bl dke
dks ns[kk gSA f’ko iqjk.k esa dgk gS fd &
^dke% loZe;% iqalka LoladYi leqn~Hko%A
dkekr~ losZ izorZUrs yh;Urs o`f)Hkkxrk%AA* ¼/keZ la0i0 8 v0½
bl rjg ls dke 'kCn ds eq[;r;k ;s rhu vFkZ gksrs gSa & 1- lq[k] 2- lq[k ds lk/ku vkSj
3- lq[k dh dkeukA bl izdkj ls dke&’kCn 'kkL=ksa es]a izlaxkuqlkj fHké&fHké LFkyksa es]a
fHké&fHké vfHkizk; ls O;oâr gksrk gSA ;kuh dgha ij lq[k ds fy,] dgha ij lq[k ds lk/kuksa ds
fy, vkSj dgha ij lq[k dh dkeuk ds fy,A
mDr jhfr ds vuqlkj dke lq[kLo#i vFkok lq[k dk eq[;&lk/ku gksus ds dkj.k izkf.k;ksa
dks vR;Ur gh vHkh„ gksrk gSA lkFk gh og nsg] bfUnz;ksa dh r`fIr ,oa ifjiqf„dk Hkh eq[; lk/ku
gksus ls izkf.k;ksa dh yksd ;k=k eas Hkh vR;Ur visf{kr gSaA D;ksfa d &
^lq[kkFkkZ% loZHkwrkuka erk% lokZ% izo`Ùk;%*

20
 vFkkZr~ lEiw.kZ izkf.k;ksa dh leLr izfo`fÙk;ka ,dek= lq[k ds fy, gh gksrh gSaA vr,o lq[k
dh izkfIr ds fy, izkf.k;ksa dks dke furkUr visf{kr gSA dke dk Qy gS & bfUnz;&r`fIriwoZd
vkjksX;ykHkA blh ls Jqfr dgrh gS &
^;nk oS lq[ka yHkrs·Fk djksfr] uklq[ka yC/ok djksfr] eq[keso cC/ok djksfrA*
izo`fÙkekXkZ dk iz/kku&mís’; ^dke&lq[k* gh gSA bu lq[kksa dks /kekZuqlkj Hkksxus esa dksbZ
nks"k ugha gS D;ksfa d fpÙk vkSj bfUnz;ksa dh izlérk gh fo"k;ksiHkksx dk Qy ekuk x;k gSA lksenso
lwjh us dgk gS fd &
^bfUnz;&izlknuQyk fg foHkwr;%A* ¼u0o0dke&leq06½
blhfy, egf"kZ dkeUnd us dgk gS fd &
^lsosr fo"k;ku~ dkys eqDRok rRijrka o’khA
lq[ka fg QyeFkZL; rféjks/ks o`Fkk fJ;%*AA ¼uh0 lk0½
blh vfHkizk; ls egf"kZ dkSfVY; us Hkh vius vFkZ’kkL= esa dgk gS fd &
^/kekZFkkZfojks/ksu dkea lsosr u fu%lq[k% L;kr~A
iapes fnolL;k„es ok Hkkxs LoSjfogkjfefrAA* ¼dkS0v0 1&7&3½
dke nks izdkj dk gksrk gS 1- fnO; ¼vFkkZr~ ikjykSfdd&LoxhZ;½ vkSj 2- ekuq"k ¼vFkkZr~
,sgykSfdd dke½A buesa ls fnO; dke ds lkeus ekuq"k lq[kksiHkksx ,sls gSa] tSls fd leqnz ds lkeus
dq’kkxz ij yVdk gqvk tyfcUnq! blh ls tSu rhFkZadj egkohj Lokeh us dgk gS fd &
^tgk dqlXxs mnxa leqís.k lea fe.ksA
,oa ekuqLlxk dkek nsodkek.k vfUr,AA*
vFkkZr~ tSls dq’k uked r`.k ds vxzHkkx ij yVdk gqvk ty leqnz dh rqyuk eas ux.;
gksrk gS] mlh rjg euq";ksa ds dke Hkksx nsorkvksa ds dkeHkksxksa ds lkeus ux.; gkrs gSaA
dke#i iq#"kkFkZ dk izfriknu djrs gq, Hkxoku~ euq us dgk gS fd &
^f}rh;ek;q"kks Hkkxa d`rnkjks x`gs olsr~A*23
vFkkZr~ thou ds izFke prqFkZ Hkkx esa czãp;Z iwoZd v/;;u lekIr djds f}rh; Hkkx esa
/kkfeZd fof/k ls fookg djds xkgZLF;thou O;rhr djsA mls dsoy Lonkj&fujr gksdj
_rqdkykfHkxkeh gksuk pkfg;sA24 bu fu;eks& a funsZ’kksa ds vuqikyu ls vusd lkekftd ToyUr

23
& euqLe`fr 4@1
24
& _rqdkykfHkxkeh L;kr~ Lonkjfuj% lnkA ioZotZa oztsPpSuka rn~ozrks jfrdkE;;kAA¼euq0 3@45½
9

21
leL;kvksa dk lek/kku gks ldrk gSA ifjokj&dY;k.k ds uke ij vjcksa #i;ksa ds O;;&viO;;
dks jksdk tk ldrk gSA
eks{k
prqFkZ iq#"kkFkZ dk uke gS ^eks{k*A bls ^ije iq#"kkFkZ* Hkh dgrs gSaA izk;% vFkZ vkSj dke dh
pdkpkSa/k ds lkeus vf/kdka’k] vfoosdh euq"; eks{k dks 'kq"d vkSj uhjl le>dj mldk uke gh
lqudj ?kcM+k tkrs gSaA os yksx le>rs gSa fd Hkyk] eks{k esa D;k vkuUn feysxk \ ogka u rks ;g
'kjhj gh jgsxk vkSj u ;s fiz;re fo"k; gh feysaxs] dsoy ;g vkRek ijekRek esa foyhu gks
tk;sxkA rc blls gesa vkuUn D;k feysxk \
ijUrq leLr osn] 'kkL=] egku~ ls egku~ Kkuh _f"k&egf"kZ] lUr] eqfu&egkRek vkfn
yksdksÙkj izfrHkk’kkyh lHkh egkiq#"kksa us lalkj Hkj ds ,d ls ,d lq[kksa dks Nku&chu djds] mUgsa
[kwc vPNh rjg ls ij[k&ij[k djds] vUr esa fcuk erHksn ds lHkh us ,d Loj ls] ;gh ,d
vdkV~;] vVy fl)kUr lqfLFkj dj fn;k gS fd &
okLro esa lcls mÙke lcls lq[ke; vkSj lcds vHkh"V vkSj pkgus ;ksX; fujof/kd v[k.M
vkuUne; egkUk~ ljl iq#"kkFkZ ^eks{k* gh gSA blhfy, fo".kq&iqjk.k esa dgk gS fd &
^bfr lalkj nq%[kkdZ rki rkfir psrlke~A
foeqfä ikniPNk;ke`rs dq= lq[ka u`.kke~AA ¼6 va’k0 5 v0 57½
vFkkZr~ lkalkfjd nq%[k#ih izp.M lw;Z ds rki ls ftudk vUr% dj.k lUrIr gks jgk gS]
mu iq#"kksa dks eks{k#ih dYio`{k dh 'khry Nk;k dks NksM+dj vkSj dgka lq[k fey ldrk gS \
vr,o eks{k gh leLr iq#"kkFkksZa vkSj leLr lq[kksa dk lezkV gSA bldh izkfIr fdlh&fdlh
fojys gh HkkX;’kkyh dks gks ikrh gS] vf/kdka’k yksxksa ds fy, rks ;g ,d vkn’kZek= gSA
eks{k dk vFkZ gS & eqP;rs loSZnqZ%[kcU/kuS;Z= l% eks{k% \ vFkkZr~ ftl in dks ikdj tho
vk/;kfRed vkfn lEiw.kZ nq%[k cU/kuksa ls eqDr gks tkrk gS& mls eks{k dgrs gSaA blhfy, bldk
uke eqfDr Hkh gSA eqfDr 'kCn Hkh ^eqPy` ekspus* bl /kkrq ls ^fäu~* izR;; gksdj cuk gSA bldk
vFkZ gksrk gS & ¼ca/ks gq, izk.kh dk½ cU/kuksa ls NwV tkukA cU/ku D;k gS \ ijrU=rk A rks tho
LorU= gS fd ijrU= \ bldk mÙkj gS fd tho ijrU= gSA ;|fi nsg fHké gS vkSj nsgh vkRek
¼tho½ fHké gS] ijUrq nsgh nsg ds vUnj nsg vkSj bfUnz;ksa ds cU/kuksa ls [kwc tdM+k gqvk gS] vr,o
og fcYdqy ijrU= gSA xksLokeh th us dgk gS fd &
^ijo’k tho Loo’k HkxoUrk*
blhfy, vkSj rks D;k] cM+s ls cM+k lezkV Hkh viuh bPNk ls bl cU/ku dks rksM+ ugha
ldrkA le; lekIr gks tkusa ij og LosPNk ls ,dvk/k ?k.Vs Hkj Hkh fQj bl nsg esa ugha jg
ldrkA vr% nsg /kkj.k djuk gh tho dk egku~ cU/ku gSA nsgoku~ gksrs gq, bu tUe&ej.k vkSj
10

22
deZHkksxksa dh ijrU=rk ls NqVdkjk dksbZ Hkh ugha ik ldrkA tc rd ;g cU/ku gS] rc rd tho
dks ije vkuUn vFkkZr~ v[k.M lq[k fey gh ugha ldrkA
o.kZ/keZ] vkJe/keZ] jkt/keZ] vki)eZ vkfn lHkh fo"k;ksa dk fo’kn o.kZu djus ds ckn
Hkxoku~~ euq us ekuo&thou ds vfUre Yk{; eks{k dk vUr esa fu#i.k fd;k gSA
ekuo izo`Ùk deksZa ds }kjk LoxkZfnyksdksa esa nsoksa dh lekurk izkIr djrk gS vkSj fuo`ÙkdeksZa
ds lsou ls iapHkwrksa dk vfrØe.k djrk gqvk eks{k izkIr djrk gSA25 lEiw.kZ thoksa esa vkRek dks
vkRek esa lEiw.kZ pjkpj dks ns[krk gqvk vkRe;kth LokjkT; czãRo vFkkZr~ eks{k dks izkIr djrk
gSA26 blh dk milagkj djrs gq, mUgksaus dgk gS &
,oa ;% loZHkwrs"kq i’;R;kRekuekReukA
l loZlerkesR; czãkH;sfr ija ine~AA ¼euq0 12@125½
vFkkZr~ bl rjg lEiw.kZ thoksa esa fLFkr vkRek dks vkRek ds }kjk tks ns[krk gS] og
loZlerk dks ikdj czã#i ijein dks ik tkrk gSA
ftl ekuo&/keZ’kkL= esa ekuo ds iq#"kkFkZprq„; dk ,slk mÙke izfriknu gks] ftlesa
mldh izkfIr ds /kekZuqdwy lk/kuksa dk Li„ fu#i.k gks] mldh izklafxdrk esa lansg djuk
vKkuewyd gh gS] vr% euqokn&ekuo/keZ’kkL= dh izklafxdrk lkoZdkfyd gSA

25
& izo`Ùka deZ lalsO; nsokukesfr lkE;rke~A fuo`Ùka lsoekuLrq HkwrkU;R;sfr iap oSAA ¼euq0 12@90½
26
& loZHkwrs"kq pkRekua loZHkwrkfu pkRefuA lea i’;ékRe;kth LokjkT;ef/kxPNfrAA ¼euq0 12@91½
11

23
 Concept of Dharma
धर्म की अवधारणा - Prof. (Dr.) Shankar Kumar Mishra
Department of Dharmashatra mimansa SVDV BHU
Varanasi Uttar Pradesh

/keZ 'kCn ^/k`_k~ /kkj.ks* /kkrq ds vkxs ^eu~* çR;; yxkus ls fu"ié gksrk gSA O;kdj.k dh n`f"V ls
bldh O;qRifÙk rhu çdkj ls dh tk ldrh gS &

¼d½ f?kz;rs yksdks·ususfr /keZ% vFkkZr~ ftlls yksd /kkj.k fd;k tk; og /keZ gSA

¼[k½ /kjfr /kkj;fr ok yksdfefr /keZ% vFkkZr~ tks yksd dks /kkj.k djs] og /keZ gSA

¼x½ f?kz;rs ;% l /keZ% vFkkZr~ tks nwljksa ls /kkj.k fd;k tk;] og /keZ gSA

fo'okfe=Le`fr dgrh gS &

;ek;kZ% fØ;ek.ka fg 'kalUR;kxeosfnu%A

l /keksZ ;a foxgZfUr re/keZa çp{krsA1

vFkkZr~ vkxeosÙkk vk;Zx.k ftl dk;Z dh izla'kk djrs gSa] og /keZ gS vkSj ftldh fuUnk djrs gSa]
og v/keZ gSA

/keZ euq’; dh ,d lkoZHkkSe vifjgk;Z Hkkouk gSA mlus euq’; dks fgr dY;k.k ,oa Js; dh vksj
vxzlj fd;k gSA Hkkjrh; n`f’Vdks.k ls /keZ dk viuk vyx egÙo gSA Hkkjr dks /keZizk.k ns'k dgk tkrk
gSA mldk lkjk vfLrRo /keZ ds vfLrRo ij vk/kkfjr gSA bl n`f’V ls Hkkjr esa /keZ dh viuh fo”ks’k
ifjdYiuk ,oa ijEijk gSA Hkkjrh; /keZ&fpUrdksa us leLr pjkpj psru rFkk tM+ ftrus Hkh inkFkZ gSa]
mu lcdk vfLrRo /keZ ds vfLrRo ij vk/kkfjr ekuk gSA lalkj eas izR;sd inkFkZ dh tks vkUrfjd
fo/kk;d o`fÙk gS] ogh mldk /keZ gSA izR;sd inkFkZ ftl o`fÙk ij vk/kkfjr gksrk gS] ogh ml inkFkZ dk
/keZ gksrk gSA /keZ dh o`f) ls izR;sd inkFkZ dk lao)Zu gksrk gS vkSj /keZ dh U;wurk ls izR;sd inkFkZ dk
gªkl gksrk gSA

osn ls ysdj oSfnd lkfgR;] egkHkkjr] iqjk.kksa vkSj Le`fr;ksa ds /keZfpUrdksa us ^/keZ* ds Lo#i dk
fdl #i esa izfriknu fd;k gS] og fopkj.kh; gSA _Xosn esa vusd ,sls LFky gSa] ftuesa /keZ dk mYys[k
gqvk gSA dgha rks ^/keZ* “kCn dk iz;ksx iqfYyax esa vkSj dgha uiqaldfyax esa gqvk gSA _Xosn2 dh dqN
_pkvksa esa ^/keZ* “kCn Li’Vr% /kkfeZd fØ;k&dykiksa ;k /kkfeZd fof/k;ksa ds #i esa ç;qä gqvk gSA dqN
_pk,¡3 ,slh gSa] ftuesa /keZ dk fu;e] fl)kUr O;oLFkk izpyu vkfn dk vFkZ /ofur gksrk gSA bl #i

1
& fo’okfe=Le`fr oh0 fe0 31
2
- _Xosn & 1@22@18] 5@26@6] 7@43@24
3
- _Xosn & 4@52@3] 5@63@7] 6@70@1 ,oa 3@3@1
1

24
esa ;g “kCn ^/k`* /kkrq ds ewy vFkZ ^/kkj.k djuk*] ;k ^ikyu djuk* vFkZ dks izdV djrk gSA ¼;Fkk &
^|koki`fFkoh o#.kL; /keZ.kk fo"dfHkrs vtjs Hkwfjjsrlk*½A _Xosn ds ;s ea= vFkoZosn esa Hkh iz;qä
gq, gSa] tgk¡ ^/keZ* ds lkFk ^/keZu~* dk Hkh iz;ksx feyrk gSA ogk¡ mls /kkfeZd fØ;k&dykiksa ds #i esa
xzg.k fd;k x;k gSA ¼;Fkk& ^_ra lR;a riks jk’Vªa Jeks /keZL; deZ Pk*½] ^oktlus; lafgrk*4 esa ^/keZ* “kCn
dk blh vFkZ esa iz;ksx fd;k x;k gSA

lafgrkvksa ds i§kkr~ czkã.k xzUFkksa esa ^/keZ* “kCn dk iz;ksx cgqyrk ls gqvk gS] tks fd vf/kd Li’V
,oa mikns; gSA ^,srjs;czkã.k*5 esa mls leLr /kkfeZd fo’k;ksa dk i;kZ; ekuk x;k gSA ^”kriFkczkã.k*6 esa
dgk x;k gS fd ^/keZ Hkxoku~ dh nsu gSA og jktkvksa dk jktk gSA mlls vf/kd “kfä”kkyh nwljk ugha
gSA mlds vkJ; ,oa cy ls v”kä Hkh “kfä”kkyh ls viuk vf/kdkj izkIr dj ysrk gS A

mifu’kn~ ;|fi ewyr% rÙofo|k ds xzUFk gSa] rFkkfi muesa Hkh rÙoKku ds fy, /keZ dh vis{kk
Lohdkj dh xbZ gSA ^NkUnksX; miuf’kn~*7 esa /keZ dks f=LdU/kkRed dgk x;k gS =;ks /keZLdU/kk
;Kks·/;;ua nkufefr izFkeLri ,osfr f}rh;ks czãp;kZpk;Zdqyoklh
r`rh;ks·R;UrekRekuekpk;Zdqys·olkn;u~A izFke LdU/k ds vUrxZr x`gLFk /keZ] f}rh; LdU/k ds
vUrxZr rkil /keZ ¼okuizLFkkJe½ vkSj r`rh; ds vUrxZr czãp;Z /keZ ¼czãp;kZJe½ dk lekos”k fd;k
x;k gSA ^rSfÙkjh; mifu’kn~*8 esa Lukrd czãpkjh dks /kekZuqpj.k ¼/keZa pj½ dk mins”k fn;k x;k gSA

/keZlw=ksa] muds O;k[;ku xzUFkksa vkSj Le`fr;kas esa ^/keZ* dk iz;ksx vf/kd O;kid rFkk Li’V vFkZ esa
fd;k x;k gSA ogk¡ mls U;kf;d O;oLFkk ;k fo/kku vFkok lafgrk ds #i esa xzg.k fd;k x;k gSA /keZlw=ksa
vkSj Le`fr;ksa esa gh /keZ dh fOkLrkj ls O;k[;k dh xbZ vkSj vkt ds Hkkjrh; lekt esa /kekZuq”kklu ds tks
fof/k&fo/kku gSa] mudk fnXn”kZu fd;k x;k gSA ^euqLe`fr*9 esa dgk x;k gS fd ^eqfu;ksa ds vkxzg ij euq
us mUgsa leLr o.kZ&/keksZa dk mins”k fn;k* ^;kKoYD; Le`fr*10 esa /keZ ds euq&çksä /keZ&Lo#i dk
;Fkkor~ o.kZu fd;k gS] /keZ”kkL= ds {ks= esa ;s nksuksa Le`fr;k¡ ,slh gSa] tks vkt Hkh yksdçpfyr gSSa vkSj
ftuesa izFke ckj ekuo lekt dks /keZ dh fof/k&O;oLFkk esa vkc) fd;k x;k gSA

/keZlw= rFkk Le`fr;ksa ds Vhdkdkjksa ,oa fucU/kdkjksa us /keZ ds mÙkjksÙkj fodflr ,oa yksdO;kIr
Lo#i dks vius&vius <ax ls izfrikfnr fd;k gSA ^euqLe`fr* ds Vhdkdkj es/kkfrfFk rFkk xksfoUnjkt vkSj

4
- oktlus; lafgrk & 10@29
5
- ,srjs;czkã.k & 7@17
6
- “kriFkczkã.k & 14@4@2@26
7
- NkUnksX; mifu’kn~ & 2@23
8
- rSfÙkjh; mifu’kn~ & 1@11
9
- Hkxou~ loZo.kkZuka ;FkkonuqiwoZ'k%A vUrjizHkok.kka p /kekZUuks oDrqegZflAA euqLe`fr &1@2
10
- ;ksxh'oja ;kKoYD;a laiwT; equ;ks·czqou~A o.kkZJesrjk.kka uks cwfg /kekZu'ks’kr%AA ;kKoYD;Le`fr & vk0@1
2

25
^xkSre /keZlw=* ds O;k[;krk gfjnÙk us Le`frdkjksa }kjk izfrikfnr /keZ ds fofHké #iksa dks mifuc) djds
mlds ik¡p izeq[k foHkkx fd;s gSa &

1-+ o.kZ/keZ] 2- vkJe/keZ] 3- o.kkZJe/keZ] 4- uSfefÙkd/keZ rFkk 5- xq.k/keZ

/keZ ds bu foHkkxksa dh lw{e foospuk Hkh mä Vhdkdkjksa us dh gSA bl izdkj ijEijk ls izofrZr
/keZ dh LFkkiuk ekuo ds fo”ks’kkf/kdkjks]a drZO;ks]a fu;eksa vkSj vkpkj&i)fr;ksa ds #i esa gqbZ vkSj mudks
vkt Hkh lekt esa ekU; le>k tkrk gSA Hkxoku~ euq dgrs gSa &

fonzfÆ% lsfor% lfÆfuZR;e}s"kjkfxfHk%A

ân;sukH;ksuqKkrks ;ks /keZLra fucks/krAA11
vFkkZr~ /kekZRek ,oa jkx}s’k ls jfgr fo}kuksa }kjk loZnk lsfor vkSj ân; ls vPNh rjg tkuk
x;k tks /keZ gS mls lquksA

/keZ ds ijEijkxr Lo#i dk mÙkjksÙkj T;ks&

a T;ksa fodkl gksrk x;k] mldh lhek vkSj mlds
fof/k&fo/kku mrus gh O;kid gksrs x;sA mlds ijorhZ O;k[;krkvksa us /keZ dks iztkfgr esa lféosf”kr
djds er&erkUrj ls mldk O;k[;ku fd;kA ^egkHkkjr* esa /keZ ds ewyLo#i ds lEcU/k esa ekSfyd
fopkj fd;k x;k gSA ogk¡ ¼d.kZioZ½ /keZ dh O;qRifÙk /kkj.kkFkZd ^/k`* /kkrq ls ekuh xbZ gSA mldk y{k.k
fuf§kr djrs gq, dgk x;k gS fd ^ftldks iztk /kkj.k djrh gS vkSj ftlds }kjk leLr iztk dk /kkj.k
gksrk gS] ogh /keZ gS* &

/kkj.kk)eZfeR;kgq% /keksZ /kkj;rs iztk%A

;Lek)kj.kla;qäk% l /keZ bfr fu§k;%AA12

^euqLe`fr* esa pkj y{k.k crk;s x;s gSa] ftuds }kjk /keZ dh igpku gksrh gS] vFkok ftu ij /keZ
vk/kkfjr gSA ;s pkj y{k.k gSa & Jqfr] Le`fr] lnkpkj vkSj viuh vkRek dk lUrks’k &

osn% Le`fr% lnkpkj% LoL; p fiz;ekReu%A

,rPprqfoZ/ka izkgq% lk{kkn~ /keZL; y{k.ke~AA13

osn vkSj Le`fr] nksuksa /keZfu… Hkkjrh; lekt dh vkLFkkvksa ,oa fo”oklksa ds ewy vk/kkj gSa]
vlfUnX/k] vifjgk;Z izek.k gSA fdUrq lnkpkj vkSj vkRerqf„ vFkkZr~ ijEijk,¡ vkSj izR;sd O;fä dh

11
- euqLe`fr & 2@1
12
- egkHkkjr “kkfUr ioZ 101@11
13
euqLe`fr 2@12
3

26
vkRepsruk] vkRelk{; ;k uSfrdrk vkSj vkRefu…k leLr fo”o ds ekuo&lekt ds /kkfeZd ikFks; gSaA
Jqfr rFkk Le`fr;ksa dh ekU;rkvksa ls vlger ,oa foeq[k pkokZd~] tSu vkSj ckS) vkfn /keksaZ esa Hkh lnkpkj
vkSj vkRerqf„ ;k vkRelk{; vFkok vkRelUrks’k nksuksa dks Lohdkj fd;k gSA bu voSfnd /keksZa dh
lafgrkvksa esa Hkh ^euqLe`fr* ds mä lnkpkj rFkk vkRepsruk ij cy fn;k x;k gSA

/keZ ds prqfoZ/k y{k.kksa esa osn vFkkZr~ Jqfr dk izFke LFkku gSA Jqfr esa fdlh oxZ fo”ks’k] tkfr
fo”ks’k rFkk ns”kdky&fo”ks’k ds uhfr&fu;eksa dk fu#i.k u gksdj] os ,d ,sls vkRepsrk] izcq) ,oa
ri&rst&lEié eufLo;ksa ds vuqHko] lk{kkRd`r fopkjksa dk ladyu gS] tks vukfn gSa vkSj ftlesa
ekuoeaxy rFkk vkRefgr dk lkj fufgr gSA Le`fr;ksa esa Jqfr;ksa dh O;k[;k gS vkSj ekuo&lekt dh
j{kk&O;oLFkk rFkk mlds mRFkku ds fy, uhfr&fu;e of.kZr gSaA ;g O;kid ekuo&lekt ijLij
vfojks/kh ,oa vck/kd gksdj viuh&viuh vkLFkkvksa rFkk fo”oklksa dk] viuh uSfrd rFkk vk/;kfRed
fu…kvksa dk ifjikyu djrk gqvk vH;qn; dh vkSj vxzlj gSA mldks ijEijk ls ;g ekU;rk izkIr gS fd
tgk¡ Jqfr rFkk Le`fr esa fojks/k fn[kkbZ ns] Jqfr funsZ”k ekU; gSaA

Le`frdkjksa us drZO;ksa ds vuqlkj /keZ ds vusd fOkHkkxksa dk mYys[k fd;k gS] ftuesa eq[; gSa &
fuR;] uSfefÙkd] dkE; vkSj vki)eZA ftuds u djus ls iki gksrk gSA ,sls vfuok;Z drZO;ksa dk lEiknu
gh ^fuR;/keZ* gSA fo”ks’k ifjLFkfr;ksa ;k voljkas ij ftl /keZekxZ dk vuqlj.k fd;k tkrk gS] mls
uSfefÙkd /keZ* dgrs gSaA fdlh fo”ks’k mís”; dh flf) ds fy, ftu drZO;ksa dk ikyu fd;k tkrk gS]
fdUrq ftuds u djus ls dksbZ nks’k ugha gksrk gS] mUgsa ^dkE;deZ* dgk x;k gSA blh izdkj ^vki)eZ* mls
dgrs gSa] ftldk vuqlj.k ladVkié le; esa foosdkuqlkj fd;k tkrk gSA fdUrq fu;ekuqdwyrk mlesa
Hkh visf{kr gSA

dqN fo”ks’k ifjfLFkfr;ksa esa tc vius o.kZ rFkk vkJe ds fofgr drZO;ksa dk ikyu ugha gks ldrk
gS] ml ifjfLFkfr esa /keZ”kkL= esa mlds fodYi crk;s x; gSa] tks fd “kkL= fofgr gksus ds dkj.k
/kekZuqdwy gS] mls ^vki)eZ* dgk x;k gSA mnkgj.k ds fy, ;fn czkã.k iBu&ikBu&Hktu vkfn vius
fu;fer drZO;ksa dk] fo”ks’k ifjfLFkfr;ksa ds dkj.k fuokZg ugha dj ldrk gS] rc og {kf=; ds drZO;ksa
dks viuk ldrk gSA fdUrq ifjfLFkfr fo”ks’k ds lekIr gks tkus ij mls ^vki)eZ* R;kx dj vius
fu;fer o.kkZJe /keZ dks viuk ysuk pkfg,A tc /keZjkt ;qf/kf…j dks vkReh;ksa ds lagkj ls oSjkX; mRié
gks x;k Fkk] rc “kj&”k¸;k ij iM+s Hkh’e firkeg us jkt/keZ dh O;k[;k djrs gq, mUgsa ^vki)eZ* dk
mins”k fn;k FkkA14

14
- “kkafrioZ & 68@30] 69@6
4

27
 fo”o ds lHkh /keksZa vkSj n”kZuksa dk ,d gh vfUre y{; jgk gS & fu%Js;l~ dh izkfIrA fu%Js;l~
vFkkZr~ vioxZ] eks{k vFkok lc izdkj ds f=fof/k nq%[kks&
a rkiksa dh vkR;fUrd fuo`fÙkA ,slh fuo`fÙk] ftlds
ckn dHkh Hkh fdlh Hkh izdkj ds nq%[kkuqHko dh vk”kadk ugha jg tkrh gSA egf’kZ d.kkn us /keZ ds blh
pje y{; dks ^oS”ksf’kdlw=* ds izFke v/;k; esa fu#fir djrs gq, fy[kk gS & ^tks lcdks leku #i ls]
vH;qn; dh vksj ys tk;s vkSj lc dks dY;k.k dk ekxZ fn[kk;s] ogh /keZ gS*

;rks·H;qn;fu% Js;lflf)% l% /keZ%15A jgu&lgu rFkk vkpkj&fopkj dh ifj”kq)rk gh vH;qn;

gS vkSj lalkfjd lq[kksa ls tqM+s gq, nq%[kksa ds cU/kuksa ls loZFkk eqä gks tkuk gh fu%Js;l~ gSA egf’kZ d.kkn
dk vfHker gS fd /kekZpj.k ls mRié nzO;kfn inkFkkZas ds lk/kE;Z&oS/kE;Z }kjk fu’ié tks rÙoKku gS] ogh
/keZ gS vkSj mlds vkpj.k ls gh eks{k dh miyfC/k gksrh gSA

ehekalkn”kZu esa /keZ ds rhu fo”ks’k.k crk;s x;s gSa & iz;kstu] osncksf/krk vkSj vFkZrkA /keZ dk
iz;kstu gS vH;qn; vkSj fu%Js;l~ dh flf)A osncksf/krk] vFkkZr~ fof/k vFkZokn rFkk uke/ks; mlds cks/kd
gSaA blh izdkj vFkZrk] vFkkZr~ og vuFkZjfgr gSA vuFkZrk] vFkkZr~ fgalk dk izfr;ksxh gh vFkZrk gSA bl
vFkZrk dks Li’V djus ds fy, ehekalkdkj dk vfHker gS fd fdlh dk vi?kkr djus ds ckn /keZ dk
;g fo/kku ugha gS fd veqd vuq…ku ls mldh nks’k&fuo`fÙk ;k “kqf) gks tkrh gSA

/keZ] D;ksafd vn`„ gS] bfUnz; xzká fo’k; ugha gSA vr% izR;{kkfn izek.kksa ls mls u rks fl) fd;k
tk ldrk gS vkSj u tkuk tk ldrk gSA

vukfn dky ls pys vk jgs /keZ dks gh ^lukru&/keZ* dgk x;k gSA /keZ] fuR; vkSj fu§ky gSA
og vukfn dky ls ekuork }kjk oj.k fd;k tkrk jgk gSA ^Hkxon~xhrk* esa mls fuR; vkSj vpy dgk
x;k gS & ^fuR;% loZxr%LFkk.kqjpyks·;a lukru%*16A ;s nksuksa fo”ks’k.k vkRek ds gSa] ftldk LoHkko]
izHkko vkSj xq.k&deZ lukru vfopy vkSj fuR; gSA ;gh mldh lukrurk gSA tks /keZ vkSj n”kZu vkRek
esa lféfgr gksdj pyrs gSa] ftuesa vkRek dk LoHkko rFkk vkRek dh izd`fr lefUor gksrh gS] mlh ds
}kjk O;fä vkSj lekt dk dY;k.k rFkk fgr gksrk gSA leLr iqjkru ok³~e; eas /keZ ds egÙo ij
foLrkj ls fopkj fd;k x;k gSA osnks]a iqjk.kksa vkSj /keZ”kkóh; xzUFkksa esa /keZ dks ekuo ds fgr vkSj dY;k.k
dk lk/ku dgk x;k gSA mldk vkfn] e/; vkSj vUr lHkh dqN dY;k.ke; ,oa Js;Ldj gSA

orZeku fo”o dh ftruh Hkh vuUr /keZ “kk[kk,¡ gSa] mudk ewy Lkzksr ,d gh gS vkSj mls gh
^lukru* dgk x;k gSA ckn esa dqN yksxksa us ^lukru* dks ,d oxZ fo”ks’k esa lhfer djds izpkfjr
fd;kA fdUrq /keZ dh lukrurk dk mls i;kZ; rFkk vk”k; ugha ekuk tk ldrk gSA

15
- oS'ksf’kdlw= & 1-1-12
16
- Jhen~Hkxon~xhrk & 2@24
5

28
 f”k„ksa ds fopkj gh /keZ ds ewy gSaA ;fn /keZ ds lEcU/k esa dksbZ la”k; mRié gks]a vFkkZr~ ;fn ns”k]
dky] ifjfLFkfr ,slh mRié gks tk;s fd ftlds lek/kku ;k fu.kZ; ds fy, izkphu /keZxUz Fkksa dh O;oLFkk
pfjrkFkZ u gks] rks f”k„ czkã.k lE;d~ fopkj djds tks fu.kZ; ns]a mls gh fujfr”k; #i esa] vk”kadk jfgr
gksdj /keZ Lohdkj dj ysuk pkfg, &

^;a f'k„k czkã.kk cwz;q% l /keZ% L;kn’kafdr%*A17

f”k„ czkã.k ds lEcU/k esa euq us dgk gS & tks bfrgkl iqjk.kksa ds lfgr /keZey
w d osnksa ds Kkrk
gksa vkSj ftUgksaus osnksä /keZ&deZ Kku dks vius thou esa pfjrkFkZ ;k izR;{k fd;k gks] mUgsa f”k„ le>uk
pkfg, &
/kesZ.kkf/kxrks ;SLrq osn% lifjc`ag.k%A
rs f’k„k czkã.kk Ks;k% JqfrizR;{kgsro%AA18
^;kKoYD;Le`fr* esa dgk x;k gS fd ns”k] dky vkfn dh n`f„ ls euq’; vko”;drkuqlkj /keZ dk
fu/kkZj.k dj ldrk gSA osn ij izfrf…r tks /keZ gS] mlds Kkrk pkj O;fä;ksa ;k lkaxksikax rhu osnksa ds
Kkrk tuksa dh ifj’kn~] vFkok ,d gh v/;kReosÙkk czãfu… tks Hkh fu.kZ; dj ns] mlh dks /keZ ekuuk
pkfg,A

pRokjks osn/keZKk% i’kZr~=Sfo|eso okA

lk czwrs ;a l /keZ% L;knsdks ok·/;kRefoÙke%AA19
^f”k„* dh bl vo/kkj.kk ds vuqlkj ;fn vkt ds lekt esa /keZ&O;oLFkk ;k /keZ&fu.kZ; dk
vkpj.k fd;k tk;] rks vusd leL;k,¡ Lo;eso lqy> ldrh gSA vkt ds lekt esa /kekZpj.k rFkk
/keZ&fu/kkZj.k dh n`f„ esa Hkys gh ifjorZu yf{kr gks] fdUrq loZ&/keZ&leUo; dh “kk”or fLFkfr rHkh ykbZ
tk ldrh gS] tc /keZ ds fu/kkZj.k djus okys f”k„ksa dk vknj&lEeku gksA

;gk¡ ^/keZ* “kCn vkJeksa ds foy{k.k dÙkZO;ksa dh vksj ladsr dj jgk gSA bl izdkj ge ns[krs gSa
fd ^/keZ* “kCn dk vFkZ le;&le; ij ifjofrZr gksrk jgk gSA fdUrq vUr esa ;g ekuo ds fo”ks’kkf/kdkjks]a
dÙkZO;ks]a cU/kuksa dk |ksrd] vk;Z tkfr ds lnL; dh vkpkj&fof/k dk ifjpk;d ,oa o.kkZJe dk |ksrd
gks x;kA rSfÙkjh;ksifu’kn~ esa Nk=ksa ds fy, tks ^/keZ* “kCn ç;qä gqvk gS] og blh vFkZ eas gS] ;Fkk ^^lR;a
on**] ^^/keZ pj**------------vkfnA Hkxon~xhrk ds ^Lo/kesZ* fu/kua Js;%* esa Hkh ^/keZ* “kCn dk ;gh vFkZ gSA
/keZ”kkL=&lkfgR; esa ^/keZ* “kCn blh vFkZ esa iz;qDr gqvk gSA euqLe`fr ds vuqlkj eqfu;ksa us euq ls lHkh
o.kksaZ ds /kekaZs dh f”k{kk nsus dh fy, izkFkZuk dh Fkh A ;gh vFkZ ;kKoYD;Le`fr eas ik;k tkrk gSA

17
- euqLe`fr 12@108
18
euqLe`fr 12@109
19
;kKoYD;Le`fr 1@9
6

29
rU=okfrZd ds vuqlkj /keZ”kkL=ksa dk dk;Z gS o.kksZa ,oa vkJeksa ds /keksZa dh f”k{kk nsukA 20 euqLe`fr ds
O;k[;krk es/kkfrfFk ds vuqlkj Le`frdkjkas us /keZ ds ik¡p Lo#i ekus gS & o.kZ/keZ] vkJe/keZ] o.kkZJe
/keZ] uSfefÙkd /keZ rFkk xq.k/keZA

^/keZ* dh dfri; euksje ifjHkk’kkvksa dh vksj ladsr djuk visf{kr gSA iwoZehekalklw= esa tSfefu us
/keZ dks ^osnfofgr çsjd* y{k.kksa ds vFkZ esa Lohdkj fd;k gS] vFkkZr~ osnksa eas iz;qä vuq”kkluksa ds vuqlkj
pyuk gh /keZ gSA /keZ dk lEcU/k mu fØ;k&laLdkjksa ls gS] ftuls vkuUn feyrk gS vkSj tks osnksa }kjk
izsfjr ,oa iz”kaflr gSA21 oS”ksf’kdlw=dkj us /keZ dh ;g ifjHkk’kk dh gS & /keZ ogh gS ftlls vkuUn ,oa
fu%Js;l dh flf) gksA22 blh izdkj dqN ,dkaxh ifjHkk’kk,¡ Hkh gSa] ;Fkk ^vfgalk ijeks /keZ%* vuq”kkluioZ]
^vku`”kaL;a ijks /keZ%*] ^vkpkj% ijeks /keZ%*A gkjhr us /keZ dks Jqfr çek.kd ekuk gSA23 ckS) /keZ&lkfgR; esa
/keZ “kCn dbZ vFkksZa esa iz;qä gqvk gSA dHkh&dHkh bls Hkxoku~ cq) dh lEiw.kZ f”k{kk dk |ksrd ekuk x;k
gSA bls vfLrRo dk ,d rÙo vFkkZr~ tM+ rÙo] eu ,oa “kfDr;ksa dk ,d rÙo Hkh ekuk x;k gSA24

xkSre/keZlw= ds vuqlkj osn /keZ dk ewy gSA25 tks /keZK gSa] tks osnksa dks tkurs gSa] mudk er gh
/keZ&izek.k gS] ,slk vkiLrEc dk dFku gSA26 ,slk gh dFku ofl’B/keZlw= dk Hkh gSA27 euqLe`fr ds
vuqlkj /keZ ds miknu ik¡p gSa & 1- lEiw.kZ osn] 2- osnKksa dh ijEijk] 3- O;ogkj] 4- lk/kqvkas dk vkpkj
rFkk 5- vkRelarqf’V28A

,slh gh ckr ;kKoYD;Le`fr esa Hkh ik;h tkrh gS & osn] Le`fr ¼ijEijk ls pyk vk;k gqvk Kku½]
lnkpkj ¼Hknz yksxksa ds vkpkj&O;ogkj½] tks vius dks fiz; yxs rFkk mfpr ladYi ls mRié vfHkdka{kk
;k bPNk rFkk ijEijk ls pys vk;s gq, /keksZiknku gSaA29 mi;qZä izek.kksa ls Li’V gS fd /keZ ds ewy
miknku gS osn] Le`fr;k¡ rFkk ijEijk ls pyk vk;k gqvk f”k’Vkpkj ¼lnkpkj½A osnksa esa Li’V #i ls
/keZ&fo’k;d fof/k;k¡ ugha izkIr gksrha] fdUrq muesa izklafxd funsZ”k vOk”; ik;s tkrs gSa vkSj dkykUrj ds
/keZ”kkL=&lEcU/kh izdj.kksa dh vksj ladsr Hkh feyrk gSA osnksa esa yxHkx ipkl ,sls LFky gS]a tgk¡ fookg]
fookg&izdkj] iq=&izdkj] xksn&ysuk] lEifÙk&c¡Vokjk] fjDFkykHk ¼olh;r½] Jk)] L=h/ku tSlh fof/k;ksa

20
^loZ/keZlw=k.kka o.kkZJe/keksZinsf”kRokr~*] o.kkZJe/keksiZ nsf”kRokr~*] i`’B 237A ;kKoYD;Le`fr & 1-11] 1-2
21
pksnuky{k.kks·FkksZ /keZ% ¼iwoZehekalk lw=] 1-1-2½A
22
vFkkrks /keZ O;k[;kL;ke%A ;rks·H;qn;fu%Js;lfLkf)% l /keZ% ¼OkS”ksf’kd lw=½A
23
vFkkrks /keZ O;k[;kL;ke%A Jqfrizek.kdks /keZ%A Jqfr”p f}fo/kk] oSfndks rkfU=dh pA dqYywd }kjk euq0 ¼2&1½ esa mn~/k`r] vuq”kkluioZ] 115-1]
ouioZ] 373-76] euqLe`fr] 1-108
24
An element of existence, of existence, i.e. of matter, mind and forces. vide Dr. Stcherbatsky’s monograph on the
central conception of Buddhism (1923), P.73.
25
osnks /keZey
w eA rf}nka p Le`fr”khysA ¼xkSre/keZlw=] 1-1-2½
26
/keZKle;% izek.ka osnk”pA ¼vkiLrEc&/keZlw=] 1-1-1-2½
27
JqfrLe`frfofgrks /keZ%A rnykHks f”k’Vkpkj% izek.ke~A f”k’V% iqujdkekRekA ofl’B/keZlw=&1-4-6
28
osnks·f[kyks/keZey
w a Le`fr”khys p rf}nke~A vkpkj”pSo lk/kwukekReuLrqf’Vjso pAA euq0 2-6A
29
Jqfr% Le`fr% lnkpkj% LoL; p fiz;ekReu%A lE;d~ ladYit% dkeks /keZey w fena Le`re~A ;kKoYD;] 1-7A
7

30
ij izdk”k iM+rk gSA30 osnksa dh _pkvksa ls ;g Li’V gksrk gS fd Hkzkr`foghu dU;k dks oj feyuk dfBu
FkkA31 dkykUrj esa /keZlw=ksa ,oa ;kKoYD;&Le`fr esa Hkzkr`foghu dU;k ds fookg ds fo’k; esa tks ppkZ gqbZ
gS] og osnksa dh ijEijk ls xq¡Fkh gqbZ gSA32 fookg ds fo’k; esa _Xosn okyh _pk vkt rd xk;h tkrh gS
vkSj fookg&fof/k esa izeq[k LFkku j[krh gSA33 /keZlw=ksa ,oa euqLe`fr esa of.kZr czkã fookg&fof/k dh >yd
oSfnd le; esa Hkh fey tkrh gSA34 oSfnd dky esa vklqj fookg vKkr ugha FkkA35 xkU/koZ fookg dh Hkh
ppkZ osn esa feyrh gSA36 vkSjl iq= dh egÙkk dh Hkh ppkZ vk;h gSA _Xosn esa fy[kk gS & vukSjl iq=]
pkgs og cgqr gh lqUnj D;ksa u gks] ugha xzg.k djuk pkfg,] mlds fo’k; esa lkspuk Hkh ugha pkfg,A 37
rSfÙkjh; lafgrk esa rhu _.kksa ds fl)kUr dk izfriknu fd;k x;k gSA38 /keZlw=ksa esa of.kZr {ks=t iq= dh
ppkZ izkphure oSfnd lkfgR; esa Hkh gqbZ gSA39 rSfÙkjh; lafgrk esa vk;k gS fd firk vius thou&dky esa
gh viuh lEifÙk dk c¡Vokjk vius iq=ksa esa dj ldrk gSA40 blh lafgrk esa ;g Hkh vk;k gS fd firk us
vius T;s’B iq= dks lc dqN ns fn;kA41 _Xosn esa ;g vk;k gS fd HkkbZ viuh cgu dks iSr`d lEifÙk
dk dqN Hkh Hkkx ugha nsrkA42 izkphu ,oa vokZphu /keZ”kkL=&ys[kdksa us rSfÙkjh; lafgrk ds ,d dFku ij
fo”okl j[kdj L=h dks fjDFk ¼olh;r½ ls vyx dj fn;k gSA43 _Xosn us fo|kFkhZ&thou ¼czãp;Z½ dh
iz”kalk dh gS] “kriFkczkã.k us czãpkjh ds drZO;ksa dh ppkZ dh gS] ;Fkk efnjk&iku ls nwj jguk rFkk
la/;kdky esa vfXu esa lfe/kk MkyukA44

rSfÙkjh; lafgrk eas vk;k gS fd tc bUnz us ;fr;ksa dks dqÙkksa ¼HksfM+;ksa½ ds ¼[kkus ds½ fy, ns fn;k]
rks iztkifr us mlds fy, izk;f”PkÙk dh O;oLFkk dhA45 “kriFkczkã.k us jktk rFkk fo}ku~ czkã.kksa dks
ifo= vuq”kklu ikyu djus okys ¼/k`rozr½ dgk gSA46 rSfÙkjh; lafgrk esa dgk gS & ^vr% “kwnz ;K ds

30
nsf[k,] tuZy vkWQ fn ckEcs czkap] jk;y ,f”k;kfVd lkslk;Vh (J.B.B.R.A.S.), ftYn 26 ¼1922½] i`0 57-82A
31
vektwfjo fi=ks% lpk lrh lekuknk lnlLRokfe;s Hkxe~A _Xosn] 2-17-7A nsf[k,] _Xosn 1-124-7] 6-5-5] vFkoZosn] 1-17-1 rFkk fu#ä] 3-4-5A
32
vjksfx.kha Hkzkr`erhelekuk’kZxks=tke~A ;kKoYD;] 1-53] nsf[k,] euqLe`fr 3-11A
33
x`H.kkfe rs lksHkxRok; ¼_Xosn] 10-85-36½ nsf[k,] vkiLrEc&x`álw=] 2-4-14A
34
xkSre/keZlw= 4-4] ckS/kk;u/keZlw= 1-2-2] vkiLrEc/keZlw=] 2-5-11-17] euqLe`fr] 3-27A
35
ofl’B/keZlw= 1-36-37] nsf[k,] vkiLrEc/keZlw= 2-6-13-11] tgk¡ dU;k&Ø; dh O;k[;k dh x;h gS vkSj nsf[k,] iwoZehekalklw=] 6-1-15 & ^d;L;
/keZek=Roe~A
36
Hknzk o/kwHkZofr ;Rlqis”kk% Lo;a lk fe=a ouqrs tus fpr~A _Xosn] 10-27-12A
37
u fg xzHkk;kj.k% lq”ksoks vU;ksn;ksZ eulk eUr;k mA _Xosn] 7-5-8A
38
tk;ekuks oS czkãxfL=fHk_Z.koku~ tk;rs] czãp;s.Z k _f’kH;ks ;Ksu nsoHs ;% iztlk fir`H;%A rSfÙkjh; lafgrk] 6-3-10-5
39
dks oka “k;q=k fo/koso nsoja e;Z u ;ks’kk d`.kqrs l/kLFk vkA _Xosn] 10-40-2A
40
euq% iq=sH;ks nk;a O;Hktr~A rSfÙkjh; lafgrk] 3-1-9-4A vkiLrEc/keZlw= ¼2-6-14-11½ rFkk cks/kk;u/keZlw= ¼2-6-14-12½ rFkk ckS/kk;u/keZlw= ¼2-2-5½ us
ladsr fd;k gSA
41
rLekTT;s’Ba iq=a /kusu fujolk;;fUrA rSfÙkjh; lafgrk 2-5-2-7A bl dFku dh vksj vkiLrEc/keZlw= ¼2-6-14-12½ rFkk ckS/kk;u/keZlw= ¼2-2-5½ us
ladsr fd;k gSA
42
u tke;s rkUoks fjDFkekjsd Z ~ & _Xosn] 3-31-2A nsf[k, fu#ä ¼3-53½ dk O;k[;kA
43
rLekr~ fL=;ks fufjfUnz;k vnk;knksjfi ikikRiqalmifLrrja onfUrA rSfÙkjh; lafgrk] 6-5-8-2A
44
czãpkjks pjfr osfo’kf}’k% l nsokuka HkoR;sdexaeA~ _Xosn 10-109-5A “kriFkczkã.k ¼11-5-4-18½ esa vk;k gS & ^rnkgq%*A u czãpkjh lUe/o”uh;kr~A
rqyuk dhft,] euqLe`fr] 2-177A ^lfe/k~* ds fy, nsf[k, “kriFkczkã.k ¼11-3-3-1½
45
bUnzh ;rku~ “kkyko`dsH;% izk;PNr~A es/kkfrfFk ¼euqLe`fr] 11-45½ us bldk m)j.k fn;k gSA] nsf[k,] ,srjs;czkã.k] 7-28] rk.M~;egkzckz ã.k] 8-1-4]
13-4-17 rFkk vFkoZosn] 2-5-3A
46
,’k p Jksf=;”pSrh g oS }kS euq’;s’kq /k`rozrkSA “kriFkczkã.k] 5-4-4-5
8

31
;ksX; ugha gSA*47 ,srsjs; czkã.k dk dFku gS fd tc jktk ;k dksbZ vU; ;ksX; xq.kh vfrfFk vkrk gS rks
yksx cSy ;k xks&lac/a kh migkj nsrs gSaA48 “kriFkczkã.k us osnk/;;u dks ;K ekuk gS vkSj rSfÙkjh;kj.;d
us mu ik¡p ;Kksa dk o.kZu fd;k gS] ftudh ppkZ euqLe`fr esa Hkyh izdkj gqbZ gSA49 _Xosn esa xk;] ?kksM+k]
lksus rFkk ifj/kkuksa ds nku dh iz”kalk dh x;h gSA50 _Xosn us ml euq’; dh HkRlZuk dh gS] tks dsoy
viuk gh LokFkZ ns[krk gSA51 _Xosn esa ^izik* dh ppkZ gqbZ gS] ;Fkk& ^rw e#Hkwfe esa izik ds ln`”k gSA*52
tSfefu ds O;k[;krk “kcj rFkk ;kKoYD; ds O;k[;krk fo”o#i us ^izik* ¼og LFkku tgk¡ ;kf=;ksa dks
ty feyrk gS½ ds fy, O;oLFkk cryk;h gSA

mi;qZä foospu ls ;g Li’V gks tkrk gS fd dkykUrj esa /keZlw=ksa ,oa /keZ”kkL=ksa esa tks fof/k;k¡
cryk;h x;ha] mudk ewy oSfnd lkfgR; esa v{kq..k #i esa ik;k tkrk gSA /keZ”kkL=ksa us osn dks tks /keZ
dk ewy dgk gS] og mfpr gh gSA fdUrq ;g lR; gS fd osn /keZ&lEcU/kh fucU/k ugha gS] ogk¡ rks
/keZ&lEcU/kh ckrsas izlaxo”k vkrh x;h gSaA okLro esa /keZ”kkL=&lEcU/kh fo’k;ksa ds ;FkkrF; ,oa fu;efu’B
foospu ds fy, gesa Le`fr;ksa dh vksj gh >qduk iM+rk gSA

/keZ”kkL= dk {ks= vR;Ur O;kid gSA Jqfr&Le`fr] iqjk.k vkSj bfrgkl vkfn vk’kZxzUFkksa esa tks
fo’k; izfrikfnr gSa] os ekuoek= dk ekxZn”kZu djrs gSaA euq’; dks tUe ls ysdj e`R;qi;ZUr izfr{k.k dc
D;k djuk pkfg;s vkSj D;k ugha djuk pkfg,] lkFk gh izkr% tkxj.k ls ysdj jkf=&”k;ui;ZUr dh
lEiw.kZ p;kZ vkSj fØ;kdyki gh /keZ”kkL= ds çfrik| fo’k; gSaA

gekjs /keZ”kkL= bu lEiw.kZ fo’k;ksa dk foLr`r foospu izLrqr djrs gSa vkSj izkf.kek= dk dY;k.k
dSls gks] bldk ekxZ iz”kLr djrs gq, euq’;ek= ds drZO; dk fu.kZ; djrs gSaA lkFk gh ,sgykSfdd thou
dh lkFkZdrk ds fy;s lRdeZ djus dh izsj.kk nsrs gSaA blhfy, /keZ”kkL= ds izfrik| fo’k;ksa esa euq’; dh
nhup;kZ] lkekU; /keZ] fo”ks’k /keZ] Lo/keZ] o.kkZJe&/keZ] laLdkj] lnkpkj] ”kkSpkpkj] fopkj] ;e&fu;e]
nku] Jk)&riZ.k] iap egk;K] Lok/;k;] lRlax] vfrfFklsok] nsoksikluk] la/;k&oUnu] xk;=h&ti] ;K]
ozrksiokl] b’VkiwrZ] “kqf)rÙo] vk”kkSp] ikrd] egkikrd] deZfoikd] izk;f”pÙk] iq#’kkFkZ&prq’V;] Hkfä]
vk/;kReKku vkfn fo’k; lekfgr gSaA

^/keZ’kkL=a rq oS Le`fr%* & bR;kfn opuksa ls ^/keZ”kkL=* “kCn ls eq[;#i ls Le`fr;ksa dh

osnewydrk Hkh Lo;a fl) gSA Le`fr;k¡ eq[; #i ls osnkFkZ dh izfriknu djrh gSa rFkk oSfnd /keZ dh gh

47
rLekPNwnzks ;Ks·uoDy`Ir%A rSfÙkjh; lafgrk] 7-1-1-6
48
r|FkSoknks euq’;jkt vkxrs·U;fLeUokgZR;q{kk.ka ok osgra ok {knur ,oeLek ,rR{knurs ;nfXua eFufUrA ,srjs; czkã.k] 1-15A rqyuk dhft, &
ofl’B/keZlw=] 4-8A
49
i_p ok ,rs egk;Kk% lrfr izrk;Urs lrfr lfUr’Burs nso;K% fir`;Kks Hkwr;Kks euq’;;Kks czã;K%A rSfÙkjh;kj.;d] 2-10-7A
50
mPpk fnfo nf{k.kkoUrh vLFkq;sZ v”onk% lg rs lw;sZ.kA fgj.;nk ve`rRoa HktUrs oklksnk% lkse izfrjUr vk;q%A _Xosn] 10-107-2A
51
dsoyk?kks Hkofr dsoyknhA _Xosn] 10-117-6A
52
/kUoféo izik vfl RoeXu b;{kos iwjos izRu jktu~A _Xosn] 10-4-1A
9

32
O;k[;k djrh gSaA Le`fr;k¡ vk’kZ Hkkjrh; euh’kk ds fnO; peRdkfjd] izkfrHk Kku ,oa fof”k’V Le`fr dk
vocks/k djkrh gSaA buesa eq[; #i ls /kekZapj.k ,oa lnkpkj dk ikB i<+k;k x;k gSA Lef`r;ksa ds lkFk gh
osn/kkjk ds lw=&lkfgR; dk Hkh blesa fof”k’V ;ksxnku gSA lw= & lkfgR; esa JkSrlw=] x`álw=] /keZlw=
rFkk dYilw= xzUFkksa dk ifjx.ku gSA /keZlw= rFkk x`álw= Le`fr;ksa ds iwoZ ihfBdk ds #i esa izfl) gSaA
LekrZ lw=ksa dh lajpuk Le`fr ds vk/kkj ij rFkk Le`fr;ksa dh lajpuk /keZlw=ksa ds vk/kkj ij ekuh x;h gSA

/keZlw=ksa esa xkSre] vkiLrEc] ofl’B] ckS/kk;u] fgj.;ds”kh] gkjhr] oS[kkul rFkk
“ka[kfyf[kr&/keZlw= fo”ks’k izfl) ,oa ekU; gSaA bu leLr lw=ksa esa /keZ”kkL= dk O;kid foospu&fo”ys’k.k
gqvk gSA bu lw=ksa dk eq[; /;s; gS vkpkj] fof/k & fu;e ¼dkuwu½ rFkk fØ;k&laLdkjksa dh fof/kor~ ppkZ
djukA

Le`fr&lkfgR; fo”kky rFkk foLr`r #i esa ifjyf{kr gSA buesa fo’k;& ckgqY; vFkok
O;k[;k&foospu dh n`f’V ls euqLe`fr esa vkpkj ,oa ;kKoYD; esa O;ogkj ¼dkuwu½ ls lEcfU/kr fo’k;ksa dh
iz/kkurk gSA lekU;r% Le`fr;ksa eas rhu iz/kku fo’k;ksa ij foospu gqvk gS & 1- vkpkj] 2- O;ogkj ,oa
3- izk;f§kÙk A

vkpkj ds vUrZxr pkjksa o.kksZa ds drZO;ks&

a deksZa dk fo/kku gqvk gSSA] x`gLFk dk drZO; vU; vkJeksa
ds izfr mldk O;ogkj] okuizLFk dk thou ,oa mldk drZO;] laU;klh dk y{k.k] mldk /keZ vkSj mlds
nSfud vkpkj] mldh o`fÙk] ,sls vusd fo’k;ksa dk jkspd o.kZu Le`fr;ksa eas gSaA fo|kFkhZ ds jgu&lgu]
drZO; vkSj O;ogkj] vkfn dk o.kZu Hkh vkpkj ds vUrxZr gqvk gSA bu fo’k;ksa ds vfrfjä jktk ds
drZO;] iztk ds izfr mlds O;ogkj] mlds }kjk n.M&fo/kku ds ikyu vkfn dk Hkh foLr`r foospu gSA
Le`fr;ksa esa of.kZr nwljk fo’k; & ^O;ogkj* gSA orZeku ifjizs{; esa bls ^dkuwu* in ls vfHkfgr fd;k x;k
gSA blds vUrxZr vktdy ds QkStnkjh vkSj nhokuh ds lHkh dkuwu vkrs gSaA QkStnkjh dkuwu ds
vUrxZr n.M vkSj mlds izdkj rFkk lk{kh vkSj mlds izdkj ,oa “kiFk] vfXu”kqf)] O;ogkj dh izfØ;k]
U;k;drkZ ds xq.k vkSj U;k;&fu.kZ; dk <ax vkfn of.kZr gSA blds vfrfjä lhek dk fu.kZ;] lEifÙk dk
foHkktu] nk; ¼lEifÙk½ ds vf/kdkjh] nk; dk va”k] L=h/ku] djxzg.k dkuwu Hkh of.kZr gSaA izk;f”pÙk
[k.M esa /kkfeZd rFkk lkekftd d`R;ksa ds u djus vFkok mudh vogsyuk djus ls tks iki gksrs gSa] muds
izk;f§kÙk dk fo/kku gSA

leLr oSfnd ok³~e; esa /keZ dh gh ppkZ gSA mifu’knkfn xzUFk vkReKku&ijekReKku /keZ dk
fu#i.k djrs gSaA bfrgkl&iqjk.k rFkk jkek;.k vkfn xzUFk rks /keZ dh lPppkZ ls Hkjs gh iM+s gSaA iqjk.kksa
rFkk egkHkkjr vkfn ds vk[;ku&mik[;ku] /keZ&efgek esa gh i;Zoflr gksrs fn[krs gSaA bl izdkj loZ=
/keZ dh gh ckrsa gSa] D;ksafd /keZ gh lcdk vk/kkj gS vkSj bl /keZ dk ikyu gh ije dY;k.kdkjh gSA
dkSfVY; ds vFkZ”kkL= esa /keZ”kkL=&fo’k;d ppkZ ¼jktk ds drZO;&mÙkjnkf;Ro vkfn½ ifjyf{kr gSA
10

33
okLro esa vFkZ”kkL= Hkh /keZ”kkL= dh gh ,d “kk[kk gSA ftldk mís”; gS i`Foh ds ykyu&ikyu ds
lk/kuksa dk mik; djukA53

/keZ”kkL= ds fu#i.k esa jkek;.k rFkk egkHkkjr&tSlh ewY;oku~ d`fr;ksa dk ;ksxnku Hkh de
egÙoiw.kZ ugha gSA ;s nksuksa /keZ ds miknku ekus tkrs gSaA bu nksuksa d`fr;ksa esa /keZ”kkL=&fo’k;d lkexzh
izHkwr ek=k esa miyC/k gSA egkHkkjr ds rks vokUrj ioksZa ds uke Hkh /keZijd gSa] tSls & eks{k/keZ ioZ]
nku/keZ ioZ bR;kfnA egkHkkjr esa vkJe/keZ ¼”kkfUrioZ] 61] 243&246½] vkin~/keZ ¼”kkfUr0 131½] miokl
¼vuq0 106&107½] rhFkZ ¼ouioZ 82½] nku ¼ou0 186½] nk;Hkkx ¼vuq0 45] 47½] izk;f”pÙk ¼”kkfUr0 34] 35]
165½] Hk{;kHk{; ¼”kkfUr0 36] 78½] jktuhfr ¼lHkk0 5] ou0 150] m|ksx0 33&34] “kkfUr0 59&130½]
o.kZ/keZ ¼”kkfUr0 60½] o.kZladj ¼”kkfUr0 65] 297½] fookg ¼vuq0 44&46½] Jk)deZ ¼L=hioZ 26] 27½ vkfn
fo’k;ksa dh foospuk ls ;g /keZ”kkL= dk dks”k gh izrhr gksrk gSA rFkk vkfndkO; okYehdh; jkek;.k ,oa
Jhjkepfjrekul esa rks /keZfoxzg Hkxoku~ Jhjke dk gh o.kZu gqvk gS] fQj mldh /keZe;rk esa D;k lansg!
og rks in&in ij /keZ ls vuqL;wr gSA

iqjk.kksa esa fo”ks’kdj Jhen~Hkkxor~] fo’.kqiqjk.k] in~eiqjk.k] LdUn] fo’.kq/keksZÙkj rFkk eRL;iqjk.k
vkfn esa /keZ&lEcU/kh vusd fo’k;ksa dk mYys[k gqvk gS] ftuesa vkpkj] vkfàd] vk”kkSp] vkJe/keZ]
Hk{;kHk{;] o.kZ/keZ] nku] deZfoikd] ikrd] izk;f”pÙk] jkt/keZ] laLdkj] “kkfUr] Jk)] L=h/keZ] rhFkZ] mRlxZ
rFkk ozr vkSj loksZifj /keZ& Hkxo)eZ dk fu#i.k gqvk gSA

Le`fr;k¡ rks eq[;#i ls ^/keZ”kkL=* in dh gh ifjpkf;dk,¡ gSaA euq] ;kKoYD;] xkSre] ukjn]
gkjhr] ofl’B] “ka[k] fyf[kr] vkiLrEc] ijk”kj] n{k] laorZ] vf=] iqyLR;] nkYH;] nsoy] vafxjk rFkk
ok/kwy vkfn _f’k&egf’kZ;ksa }kjk iz.khr Le`fr&xzUFk muds uke ls gh izfl) gSaA buesa o.kZ/keZ ¼czkã.k]
{kf=;] oS”; rFkk “kwnz½] vkJe/keZ ¼czãp;Z] x`gLFk] okuizLFk rFkk laU;kl½] lkekU;/keZ] fo”ks’k/keZ] xHkkZ/kku
ls vUR;sf’V rd ds laLdkj] fnup;kZ] iapegk;K] cfyoS”onso] Hkkstufof/k] “k;ufof/k] Lok/;k;]
;K&;kKkfn] b’VkiwrZ /keZ] izk;f”pÙk] deZfoikd] “kqf)rÙo] iki&iq.;] rhFkZ&ozr] nku] izfr’Bk] Jk)]
lnkpkj] “kkSpkpkj] vk”kkSp ¼tuuk”kkSp] ej.kk”kkSp½] Hk{;kHk{;&fopkj] vki)eZ] nk;&foHkkx ¼lEifÙk dk
c¡Vokjk½] L=h/ku] iq=ksa ds Hksn] nÙkdiq=&ehekalk vkSj jkt/keZ rFkk eks{k&/keZ ,oa vk/;kReKku bR;kfn dk
foLrkj ls o.kZu gqvk gSA

Le`frxzUFkksa ij vusd vkpk;ksZa dh Vhdk,¡& Hkk’; gq, gSa rFkk bu fofo/k fo’k;ksa ij ,d&,d fo’k;
dks ysdj LorU= fucU/k xzUFkksa dh jpuk Hkh gqbZ gSA vkSj fofo/k fo’k;ksa dk ,d= laxzg Hkh gqvk gSA tSls
gsekfnz ds iq#’kkFkZ fPkUrkef.k rFkk deykdj Hkê ds fu.kZ;flU/kq% esa Le`frxzUFkksa rFkk iqjk.kkfn ds vusd
fo’k;ksa dk laxzg Hkh gqvk gSA

-
53
vFkZ”kkL=] dkSfVY; 15-1
11

34
 vusd Hkk’;dkjksa ,oa fucU/kdkjksa us viuh jpukvksa ds ek/;e ls /keZ”kkL= dks fodflr ,oa
izdkf”kr dj ,d vge Hkwfedk dk fuokZg fd;k gS] buesa ls izeq[k gSa & es/kkfrfFk] foKkus”oj] gyk;q/k]
ikfjtkr] xksfoUnjkt] thewrokgu] vijkdZ] gsekfnz] u`flagizlkn rFkk ukxksftHkê vkfnA budh jpukvksa
dk vk/kkj izeq[k #i ls fofHké Le`frxzUFk rFkk O;ogkj”kkL= ¼dkuwu½ gSA O;k[;kvksa ,oa fucU/kksa esa vkpk;Z
foKkus”oj dh ;kKoYD;Le`fr ij ^ferk{kjk* uke dh Vhdk] thewrokgu dk nk;Hkkx] “kwyikf.kdk
Le`frfoosd] j?kquUnu dk Le`frrÙo] p.Ms”oj dk fookn&jRukdj] okpLifr dk fooknfpUrkef.k] nso..k
Hkê dh Le`frpfUnzdk] uUnif.Mr dh ^nÙkd&ehekalk* rFkk uhyd.B Hkê dk ^O;ogkje;w[k*
dkuwu&lEcU/kh xzUFkksa esa fo”ks’k egÙoiw.kZ gSaA “kwyikf.kdk Jk)foosd] JhnÙk mik/;k; dk Jk)dYi vkSj
le;&iznhi] p.Ms”oj dk jktuhfr&jRukdj] gsekfnz dk prqoZxZfpUrkef.k] ek/kokpk;Z dk ijk”kj ek/ko]
ukjk;.k Hkê dk vUR;sf’Vi)fr] f=LFkyhlsrq vkSj iz;ksxjRu] uUnif.Mr dh “kqf)pfUnzdk] deykdj Hkê
dk fu.kZ;flU/kq%] fe=feJ dk ohjfe=ksn; vkSj txékFk rdZiapkuu dk fooknk.kZo Hkkjr ds fofHké Hkkxksa
esa fo[;kr gSA blesa p.Ms”oj dk jktuhfrjRukdj e/; ;qx dh jktuhfr tkuus ds fy, ije egÙoiw.kZ
xzUFk gaSA gsekfnz dk prqoZxfZ pUrkef.k izkphu /kkfeZd ozrksa] miklukvksa rFkk vkpkjksa dk fo”odks”k gSA bl
izdkj Hkkjrh; laLd`fr] lH;rk] ijEijk rFkk jhfr&fjokt vkfn dk foospu bu /keZ”kkL=ksa esa O;kid #i
ls O;aftr gSA

/keZ”kkL=ksa esa /keZ rFkk lR; dh j{kk ds fy, ,oa lekt dk dk;Z lqpk# #i ls pys bl n`f’V ls
vFkkZr~ lekt dks ,d vfHké lw= esa ck¡/kus ds fy, lkekftd O;oLFkk vFkkZr~ o.kkZJe vkfn dh
/keZ&O;oLFkk ,oa e;kZnk fu#fir gS] ftlds ek/;e ls ladsr fn;k gS fd izR;sd O;fDr bu fu/kkZfjr
fu;eksa ds vk/kkj ij ;fn thou thrk gS] Lo&/keZ dk lE;d~ izdkj ls ikyu djrk gS rks og lq[kh vkSj
le`) cu ldrk gS rFkk vius ije fufnZ’V drZO;ksa dks djrs gq, y{; rd igq¡p ldrk gSA ijLij
lkSgknZ] izse ,oa ^olq/kSo dqVqEcde~* vkfn mnkÙk ,oa ifo= Hkkoukvksa vaxhdkj djrs gq, og Lo;a viuk
rFkk lekt] jk’Vª ,oa lewps fo”o dk dY;k.k dj ldrk gSA /keZ”kkL= euq’; dks lqO;ofLFkr <ax ls
thus ds fy;s iszsfjr djrs gSaA iq#’kkFkZ&prq’V;&/keZ] vFkZ] dke vkSj eks{k ls lefUor thou gh mlds
fy;s Js;Ldj ekuk x;k gSA bl gsrq ekuo dk lEiw.kZ thou pkj v/;k;ksa & czãp;Z ls x`gLFk] okuizLFk
,oa laU;kl esa foHkä gSA czãp;Z ls laU;kl rd ;k=k ekuo&thou ds lEiw.kZ fodkl dks vfHknf”kZr
djrh gSA lEiw.kZ thou dk ,d Hkkx ;fn czãp;Z&lk/kuk ,oa lE;d~ fo|kH;kl rFkk f”k{kktZu eas O;rhr
fd;k tk, rks fuf”pr #i ls O;fDr esa lE;d~ O;fäRo dk mn~?kkVu gksrk gSA blh izdkj tc og
x`gLFk thou esa inkiZ.k djrk gS rks mlds dqN drZO; ¼vfrfFk lRdkj] iapegk;K] nku rFkk Jk)
vkfn½ gksrs gSa] ftudk mls ikyu djuk gksrk gSA /kekZpj.k#i drZO;e; thou ls O;fä dh o`fÙk mUur
rFkk mnkje;h curh gSA x`gLFk thou ds mijkUr vf/kdkjh O;fä dks okuizLFk ;k laU;kl xzg.k djus
dh vkKk gSA blesa O;fä vius vfUre iq#’kkFkZ lkFkZd djus dk miØe djrk gS] vFkkZr~ eks{k dh vksj

12

35
izo`Ùk jgrk gSA og bZ”oj dk ifo= lkfu/; ikus dh ftthfo’kk esa rYyhu jgrk gSA bl izdkj /keZ”kkL=ksa
esa O;oâr vkJeO;oLFkk&lEcU/kh rF;ksa ,oa mldh mi;ksfxrk ds fo’k; esa tks cks/k gksrk gS] og fu”p;
gh ekuo&thou ds fy;s ojs.; gS] mikns; gSA

tUe ls ysdj e`R;qi;ZUr fgUnw laLd`fr ls vuqizkf.kr ekuo&thou laLdkjksa esa vkc) gSA
/keZlEEkr laLdkjksa ds ek/;e ls ekuo&thou dks tgk¡ lekurk rFkk /keZijk;.krk vkfn ds lw= esa fijks;k
tk ldrk gS] ogha mls lqlaLd`r Hkh cuk;k tk ldrk gSA ,slh lqlaLd`r laLd`fr Hkkjrh; lukru
laLd`fr gS] ftlls lkjs fo”o us Kku izkIr fd;k gS &

,rís’kizlwrL; ldk’kkntUeu%A

Loa Loa pfj=a f’k{ksju~ i`fFkO;ka loZekuok%AA54

iapegk;K ,oa “kkSpk”kkSp uked /kkfeZd fØ;k,¡ thou dks cká ,oa vUrjax nksuksa #iksa esa ifj”kq)
djrh gSa] vFkkZr~ buds ek/;e ls thou iki ls fu’iki dh vksj izo`Ùk gksrk gS] lkFk gh mldk “kjhj rFkk
vUr%dj.k ije ifo= gks tkrk gSA okLro esa dke&Øks/kkfntU; fodkj O;fä dks v”kqfprk iznku djrs
gSaA fcuk “kqfprk&fueZyrk ds ;K] /keZ] /;ku] mikluk vkfn lHkh deZ O;FkZ gSa] fuLlkj gSaA lkalkfjd
fo’k; ftuesa fpÙk dh efyurk lek;h jgrh gS] czã rd igq¡pus esa loZFkk ck/kd fl) gq, gSa] vr%
mudk R;kx&ifjR;kx thou dh loksZÙke lk/kuk gSA

laxzgkRed izo`fÙk esa fodkj&nw’k.k vFkkZr~ eksg&ek;k dk tc lekos”k gksrk gS] rks laxzg
}U}&la?k’kZ dk #i /kkj.k djus esa lgk;d curk gSA bl izo`fÙk ls cpus ds fy;s rFkk
vtZu&miktZu&o`fÙk dks mRié djus ds fy, nku ,d vko”;d lk/ku gS] ftls fu%LokFkZ&Hkko ls lEié
djuk&djkuk pkfg,A /keZ”kkL=ksa esa nku&fo’k;d ppkZ fUkf”pr #i ls lekt dks nku dh vksj izsfjr
djds mlds vH;qn;&fu%Js;l dk ekxZ iz”kLr djrh gSA nksuksa esa Hkh lkfRod nku dh fo”ks’k efgek gS]
rkelnku dks fufUnr cryk;k x;k gSA ijksidkj] lsok dh n`f’V ls fd;k x;k lRdeZ Hkh nku dk gh
,d vax ekuk x;k gSA

Hktu vkSj Hkkstu & ;s nks o`fÙk;k¡ O;fäRo&fuekZ.k esa vge Hkwfedk dk fuokZg djrh gSaA ;g
yksdksfä Hkh gS fd ^^tSlk [kk;s vé oSlk cus eu** blh dks /;ku esa j[kdj /keZ”kkL=ksa esa Hk{;kHk{; ij
xgu fpUru gqvk gSA Hk{;kHk{; dk lh/kk lEcU/k Hkkstu ls gSA D;k [kkuk pkfg, vkSj D;k ugha [kkuk
pkfg, rFkk fdldk [kkuk pkfg, vkSj fdldk ugha \ bl fo’k; esa /keZ”kkL=ksa esa foLr`r fu;e fu/kkZfjr
gSaA Le`fr;ksa esa Hkkstu ds fof/k&fu’ks/k ds fo’k; esa O;oLFkk,¡ nh x;h gSa] vkiLrEc /keZlw=] ofl’B/keZlw=]
euqLe`fr ¼6A 207&223½ rFkk ;kKoYD;Le`fr ¼1A 167&181½ esa bldh foLrkjiwoZd ppkZ gqbZ gSA
54
euqLe`fr 2@20
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36
lkalkfjd fo’k;&oklukvksa dks míhIr djus okys inkFkZ vHk{; rFkk /keZ lk/kuk esa izo`fÙk ,oa
drZO;&nkf;Roksa ds izfr lrr tkx#drk ykus okys inkFkZ oLrqr% Hk{; dgykrs gSaA /keZ”kkL=ksa eas
vfHkO;Dr Hk{;kHk{;&lEcU/kh rF; fuf”pr#i ls lekt ds fy;s mikns; gSA blls O;fDr vius vkgkj
vFkkZr~ HkksT;&lkexzh ds lanHkZ esa lnk lps’V jgrk gSA

bl izdkj /keZ”kkL= ds lkaLd`frd i{k ds v/;;u ls tgk¡ ,d vksj lekt dks ,d O;ofLFkr
#i feyrk gS] ogha nwljh vksj lw=kRed “kSyh esa thou thus dk ekxZ iz”kLr gksrk gSA

/keZ”kkL=ksa esa jktfof/k vkSj O;ogkj&fo’k;d rF;ksa dk izHkwr ek=k esa o.kZu gqvk gS] ftlls yksxksa
esa rRdkyhu jkT;ksa dh] jktk&iztk rFkk mudh lEifÙk vkfn ds ckjs esa vusd tkudkfj;k¡ izkIr gksrh gSaA
U;k; vkSj n.Muhfr /keZ”kkL= ds vfHké vax gSaA thou ls lR; vkSj /keZ tc iyk;u dj tkrs gSa] rc
U;k; vkSj n.M dks vko”;drk izrhr gksrh gSA ifo= vkpj.k vkSj O;ogkj&gsrq n.M gh ,d ,slk lk/ku
gS] ftlds Hk; ls O;fä dk vUr%dj.k iki ;k vuhfr&deZ u djus dks m|r jgrk gSA okLro esa U;k;
vkSj n.M ds ek/;e ls O;fä vlr~ ls lr~ dh vksj izo`Ùk gksrk gSA mlds thou esa vuq”kklukRed
izo`fÙk mn~Hkwr gksrh gSA euq vkfn ds “kklu&fo/kku lHkh dkyksa esa lHkh ds fy;s ekU; jgs gSaA bl izdkj
/keZ”kkL=ksa esa vfHkO;Dr U;k; vkSj n.Muhfr ds ek/;e ls gesa U;k;] U;k;fu/kkZj.k dh uhfr] vijk/k vkSj
n.Muhfr rFkk iz;ksx i)fr vkfn dk ifjKku gksrk gSA

/keZ”kkL=ksa esa nq’deksZa ;k ikiksa dk Qyoku~ gksuk ^deZfoikd* “kCn ls vfHkO;aftr gSA dEkZfoikd
dh ewyfHkfÙk gS tho vkSj deZA tho tc nq’deZ ;k ikideZ djrk gS vkSj og bu d`R;ksa dk izk;f”pÙk
Hkh ugha djrk] rks /keZ”kkL= ,sls thoksa dks ukjdh; ;kruk,¡ Hkksxus ds mijkUr ikid`R;ksa ds vof”k’V
fpà&Lo#i dhV&iraxksa ;k fuEu dksfV ds tho ;k o`{k ds #i esa iqu% tUEk ,oa euq’;&#i esa tUe ysus
ij jksxksa ,oa dqy{k.kksa ls ;qä gksus dh ckr crkrs gSaA deZfoikd ls ;g izdV gksrk gS fd fdlh izdkj
iki ls lEi`ä tho vius ikiksa ¼nq’d`R;ks½a dks lekIr dj ekuo&#i /kkj.k djrk gS vkSj izk;f§kÙk u
djus ds dkj.k jksxksa ,oa “kkjhfjd nks’kksa ls xzflr gksrk gSA deZfoikd oLrqr% izk.kh dks uSjk”;iw.kZ thou
thus dh vis{kk vUrl~ esa izfrf’Br vkRek ds okLrfod Lo#i dks igpkuus dk volj iznku djrk gSA
okLro esa leLr thou deZfoikd ij vk/k`r gSA deZfoikd dh jgL;e;h xqfRFk;ksa ds vuko`Ùk gksus ij
gh lalkjh tho tUe&ej.k ds nk#.k nq%[kksa ls eqä gksdj vuUr vkuUn esa foyhu gks tkrk gSA vFkkZr~
ijekRein dk lkehI; izkIr djrk gSA lEHkor% mlds thou dk ;gh vHkh’V y{; gSA O;fDr deZ djrk
gS] iq#’kkFkZ djrk gSA mldk ;g deZ&iq#’kkFkZ nks izdkj dk gksrk gS& ,d izo`fÙk ijd rFkk f}rh;
fuo`fÙkijdA izo`fÙkijd esa ikjykSfdd vkuUn dh vuqHkwfr vFkkZr~ czã dh vuqHkwfr vFkkZr~ fu%Js;.k dh
izkfIr xfHkZr gSA izo`fÙkijd deksaZ esa uSjUr;Z dk;Z”khyrk ik;h tkrh gSA tcfd fuo`fÙk esa ykSfdd fØ;kvksa
,oa vfHkdka{kkvksa ;k eu% dkeukvksa dk loZnk vHkko jgrk gSA fu’d’kZr% ;g dgk tk ldrk gS fd

14

37
deZfoikd O;fDr ds vUrl~ esa lqIr&izlqIr psruk dks >ad`r dj /keZe; thou thus dh vksj vFkkZr~
v”kqHk ls “kqHk vkSj “kqHk lr~&deZ djus dh vksj vfHkizsfjr djrk gSA O;fDr fdl izdkj vkRedY;k.k ,oa
yksd&dY;k.k ds dk;Z dj ldrk gS vkSj mldk mls D;k Qy feyrk gS\ bl fo’k; dks /keZ”kkL=ksa esa
b’VkiwrZ /keZ] izfr’Bk rFkk mRlxZ /keZ uke ls foosfpr fd;k x;k gSA b’V /keksZa esa vf/kdkjh O;fä;ksa }kjk
eq[; #i ls ;K&;kKkfn oSfnd JkSrdeksZa dk lEiknu gksrk gS vkSj iwrZ/keZ esa fo”kq) ijksidkj ,oa
tudY;k.k dh Hkkouk ls rkykc] dqvk¡] ckx&cxhpk] efUnj] /keZ”kkyk] ikSlyk vkfn cuokuk] mudh
O;oLFkk djokuk rFkk th.kksZ)kj vkfn rFkk xkspjHkwfe dh O;oLFkk djuk ,oa Qynkj rFkk Nk;knkj o`{k
yxkuk vkfn gSA

/keZ”kkL=ksa esa vfHkO;Dr gS fd b’V vkSj iwrZ bu nksuksa izdkj ds dY;k.kijd lk/ku dk fuekZ.k
djus&djkus ls fuekZid dks tgk¡ ,d vksj “kkfUr rFkk izlérk feyrh gS] ogha nwljh vksj buds ek/;e
ls og vius ikiksa dk “keu dj lalkj ls viuh eqfä dk ekxZ Hkh iz”kLr dj ysrk gSA /keZ”kkL=ksa esa
iwrZ&/keZ ds ekgkRE; dks iznf”kZr djrs gq, ;gk¡ rd dgk x;k gS fd ;Kkfn ls O;fDr ek= LoxZZ dk
vf/kdkjh gksrk gS] fdarq iwrZ deksZa ls og eqfä dk Hkh vf/kdkjh cu tkrk gS &

b"Vsu yHkrs LoxaaZ iwrZa eks{keokIuq;kr~AA55

bl izdkj /keZ”kkL=ksa esa O;fDr ds ,sgykSfdd rFkk ikjykSfdd lHkh i{kksa dk foLrkj ls foospu
gqvk gSA /keZ”kkL= gesa vPNs vkpkjoku~ cuus dh f”k{kk nsrs gSa] ln~O;ogkj fl[kkrs gSa] lcls eS=h] d#.kk]
isze djuk fl[kykrs gSa] lPpk ekuo cuus dh izsj.kk nsrs gSa vkSj vius drZO; dk vocks/k djkrs gq, Å¡ph
fLFkfr esa igq¡pus dk lans”k nsrs gSaA bl n`f’V ls /keZ”kkL=h; fu;e lHkh ds fy;s lc le;kssa esa ije
dY;k.kdkjh gSaA

leLr iqjkru ok³~e; esa /keZ ds egÙo ij foLrkj ls fopkj fd;k x;k gSA osnksa] iqjk.kksa vkSj
/keZ”kkóh; xzUFkksa esa /keZ dks ekuo ds fgr vkSj dY;k.k dk lk/ku crk;k x;k gSA mldk vkfn] e/;
vkSj vUr lHkh dqN dY;k.ke; ,oa Js;Ldj gSA lalkj esa ftrus Hkh lq[k&nq%[k] mRFkku&iru vkSj
jkx&}s’k gSa] lHkh {kf.kd ,oa vfLFkj gSaA ;gk¡ rd fd ;g “kjhj Hkh] ftlds fy, euq’; dks lHkh dqN
djuk iM+rk gS] okLro esa fouk”k”khy gSA ;fn euq’; ds lkFk lrr~ fLFkj jgus okyh dksbZ oLrq gS] rks
og /keZ gh gSA blfy, “kkódkjksa us ekuo&eaxydkjh /keZ dks ifjikyu vkSj mldk laj{k.k vko”;d
crk;k x;k gSA /keZ gh ekuo txr~ dk j{kd ,oa iks’kd gSA mlds fcuk izR;sd O;fä vlqjf{kr vkSj
vlgk; gSA euq us dgk gS & ^;fn ge /keZ dks gh ekj Mkysaxs] rks /keZ Hkh gesa ekj Mkysxk vkSj ;fn ge
/keZ dh j{kk djsx
a ]s rks og Hkh gekjh j{kk djsxkA vr% /keZ dh vius izk.kksa ls c<+ dj j{kk djuh
pkfg, &
55
fyf[krLe`fr 1
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38
 /keZ ,o grks gfUr /keksZ j{kfr jf{kr%A

rLek)eksZ u gUrO;ks ek uks /keksZ grks·o/khr~56AA

dkSjo&ik.Moksa ds laxzke dks “kkóksa esa /keZ;q) dgk x;k gS] vkSj /keZ&lefUor gksus ds dkj.k
^egkHkkjr* dks ohj ;k jkSnz jl dk xzUFk u ekudj “kkfUrjl dk xzUFk ekuk x;k gSA ^egkHkkjr* dks
^/keZlafgrk* dh ekU;rk izkIr gSA ^Hkxon~xhrk* ¼3A35½ esa dgk x;k gS fd ^vius /keZ ij vfMx cus jgdj
mlds ifjikyu ,oa vkpj.k esa ;fn fu/ku Hkh gks tk;s] rks og Js;Ldj gS & ^Lo/kesZ fu/kua Js;%*A

lHkh ;qxksa vkSj leLr ns”kksa ds tu&thou esa /keZ dk egÙo blfy, Hkh gS fd og fu;e vkSj
vuq”kklu gSA bl vuq”kklu ls gh l`f„ dk lapkyu gks jgk gSA lw;Z&pUnz vkSj fnu&jkr dh v[k.Mrk
,oa fuR;rk dk vk/kkj ogh gSA izR;sd O;fä] lekt vkSj jk„ª dh lqj{kk&O;oLFkk fu;eksa ds ifjikyu ls
gh cuh jg ldrh gSA /keZ gh ,d ,slh loZfgrdkjh O;oLFkk gS] ftlds vkn”kksZa ij pydj euq’; vius
vf/kdkjksa ,oa drZO;ksa dk ifjikyu djrk gqvk viuk rFkk ekuork dk dY;k.k djrk gSA /kekZuq …ku ls
gh thou esa lnkpkj dk mn; gksrk gS] vkSj rc euq’; vius ls cM+kas dk lEeku rFkk vius ls NksVksa dks
Lusg djuk lh[krk gSA /keZ gh gesa funsZ”k djrk gS fd ijksidkj] bZ”ojHkfä] jk„ªHkfä] xq#Hkfä vkSj
vkfrF; D;k gS\ vkSj mlds “kqHkadj ifj.kke D;k gSa\

/keZ dh gekjs thou esa O;kogkfjd mikns;rk gSA og “kkjhfjd méfr vkSj mÙke LokLF; dk Hkh
dkj.k gSA mldh vkJ;&O;oLFkk dk ,d iz;kstu ;g Hkh gSA /keZ gh gesa la;e vkSj vkRe&fuxzg dh
vksj izo`Ùk djrk gSA ogh gekjs eu] cqf) dk ifj’dkjd rFkk vkRerÙo dk cks/k djkus okyk gSA

bl izdkj /keZ euq’; dh HkkSfrd rFkk vk/;kfRed] nksuksa izdkj dh méfr;ksa dk dkj.k gSA

Hkkjrh; /keZ&lafgrk eas vkpkjksa dh Js…rk dks cM+k egÙo fn;k x;k gSA iqjk.kdkjksa vkSj
/keZ”kkódkjksa us fo”ks’k iz;kstuo”k vkpkj”kkó dh Lora= #i ls O;k[;k dh gSA vk;kZoÙkZ esa izfo’V
vk;sZÙkj tkfr;ksa dks vk;Z&laLd`fr esa foy; djus ds mís”; ls iqjk.kdkjksa us ^;qx/keZ* dh u;h izLFkkiuk
dhA ^ukjniqjk.k* ¼24A11½ esa Li„ funsZ”k fd;k x;k gS fd ^leLr o.kksZa dks fopkjiwoZd ;qx/keZ dks xzg.k
djuk pkfg, vkSj ftudk Le`fr /keZ ls fojks/k u gks] mu ns”kkpkjksa dks Hkh viukuk pkfg,* &

;qx/keZ ifjxzkáks o.kSZjsrS;ZFkksfpre~A

ns’kkpkjLrFkk xzká% Le`fr/kekZfojks/k%AA
ns”kkpkjjfgr yksdfofí„ ;qx/keZ dk vkpj.k djuk fua| gSA tks vius vkpkj ls ghu gS] og
lkaxosn vkSj osnkax esa ikjaxr gksus ij Hkh ifrr gS] D;ksafd og deZ ls ghu gS &
56
euq0 8@15
16

39
 ;% LokpkjifjHkz„% lk”osnk”ks·fi okA

l ,o ifrrks Ks;ks ;r% deZcfg’d`r%57AA

vkpkjghu O;fä dks gfj ;k gfjHkfä vFkok osn Hkh ifo= ugha dj ldrs gSaA tks vius vkJe
rFkk vkpkj ls ghu gS] og fua| ,oa ifrr gSA bl n`f„ ls vkpkj”kkó vius&vki esa ,d LorU= “kkó gS
vkSj Le`frdkjksa us blh #i esa mldh Js…rk dks izfrikfnr fd;k gSA mls O;ogkjn”kZu] uhfrn”kZu
¼,fFkDl½ vkfn ukeksa ls Hkh dgk x;k gSA bl “kkó esa ekuo thou ds ije Js; ij fopkj fd;k x;k gS]
ftldh izkfIr ds fy, “kqHk deksZa dk lEiknu vkSj v”kqHk deksaZ dk ifjR;kx crk;k x;k gSA vkpkj”kkó
;g Hkh crkrk gS fd vuq…ku;ksX; “kqHk deksZa ds lEiknu dk fo/kku D;k gSA mlesa uSfrd vkpj.k dh
vfuok;Zrk ij Hkh cy fn;k x;k gSA uSfrdrk dk fu;ked /keZ jgk gSA uSfrd fu;eksa dk ikyu blfy,
fd;k tkrk gS fd og /keZ dks ;k bZ”oj dks vHkh„ gSA drZO;ikyu dh b„ rFkk lk/; oLrq dh izkfIr dk
mik; gSA bl n`f„ ls mldk lEcU/k vkRekséfr ls gSA

^vkpkj* yksd&laxzkgd /keZ dk ,d vax gSA izkphu /keZfoK vkpk;ksZa }kjk yksd&laxzkgd /keZ dks
rhu Hkkxksa esa foHkä fd;k x;k gS & vkpkj] O;ogkj vkSj izk;f§kÙkA blh #i esa Le`fr;ksa dk
fo’k;&foHkktu fd;k x;k gSA /keZ&xzUFkksa esa blfy, vkpkj dks cM+k egÙo fn;k x;k gSA Jqfr rFkk
Le`fr ds vuUrj vkpkj dks rhljk LFkku fn;k x;k gSA ^euqLe`fr* ¼1A109½ esa dgk x;k gS fd
^vkRekuqHkwfrtU; fof/k ^vkpkj* dk f}tksa }kjk vo”; ikyu fd;k tkuk pkfg,A

Le`frdkjksa us vkpkj ds rhu foHkkx fd;s gSa & ns”kkpkj] tkR;kpkj vkSj dqykpkjA ns”k&fo”ks’k dks
n`f„ esa j[kdj tks vkpkj ijEijk ls izpfyr gSa] mUgsa ^ns”kkpkj* dgk tkrk gSA mnkgj.k ds fy, nf{k.k
Hkkjr eas ^ekrqy* dU;k ls fookg dk izpyu gSA tkfr fo”ks’k esa tks vkpkj izpfyr gS ] mUgsa ^tkR;kpkj*
dgk tkrk gSA mnkgj.k ds fy, dqN tkfr;ksa esa lxks= fookg fofgr gksrs vk jgs gSa] blh izdkj
dqyfo”ks’k esa izpfyr vkpkj ^dqykpkj* ds uke ls dgk tkrk gSA mnkgj.k ds fy, dqN vkfnoklh
dchyksa esa dfri; /kkfeZd fØ;kvkas dh fo”ks’k izFkk,¡ izpfyr gSaA

^;kKoYD;Le`fr* esa vkpkj ds vUrxZr yxHkx 12 fo’k;ksa dk lekos”k fd;k x;k gS & 1- laLdkj]
2- osnikBh czãpkfj;ksa ds pkfjf=d fu;e] 3- fookg ,oa iRuh ds fu;e] 4- pkj o.kZ ,oa o.kZladj] 5-
czkã.k x`gifr ds dÙkZO;] 6- czãpkjh thou ds mijkUr dj.kh; dÙkZO;] 7- fof/klEer Hkkstu ,oa fuf’k)
Hkkstu] 8- /kkfeZd ifo=rk] 9- Jk)- 10- x.kifr iwtk] 11- xzg”kkfUr 12- jktk ds dÙkZO;A

Le`fr&xzUFkksa esa izpfyr vkpkj ds rhu foHkkxksa ds ra= xzUFkksa easa lkr foHkkx fd;s gSa] ;s lkr
vkpkj gSa & 1- osn] 2- oS’.ko] 3- “kSo] 4- nf{k.k] 5- oke] 6- fl)kUr] 7- dqyA egkjk„ª esa oSfndksa ds
57
uk0 iq0] 24@12
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osnkpkj] jkekuqt rFkk vU;kU; oS’.kokpkj] “kadjkpk;Z ds vuq;k;h nkf{k.kkR; “kSoksa esa nf{k.kkpkj] ohj”kSoksa
esa “kSOkkpkj ,oa ohjkpkj vkSj dsjy ds “kkäksa esa ohjkpkj] xkSM+ ns”k ds “kkäksa esa dkSykpkj izpfyr gSaA bu
lkr vkpkjksa esa ls vfUre pkj vkpkjksa dks fuUnuh; dgk x;k gSA ;s lIrfo/k vkpkj nSo;ku] fir`;ku
vkSj egk;ku ds rhu dqyksa ds vUrxZr ekus tkrs gSaA f”k„ ;k vkIr vFkok cgqekU; O;fä;ksa }kjk
vuqeksfnr fopkjksa dks gh ^vkpkj* dgk x;k gSA

bl izdkj ije /keZ vkpkj ¼vkpkj% ijeks /keZ½ dh fo”ks’k #i ls O;oLFkk dj mnkjo`fÙk
/kekZpkfj;ksa us vk;sZÙkj tkfr;ksa dks vk;Zla?k esa lfEefyr djds vkSj mlds fy, ;qxku#i /keZ dh
laLFkkiuk djds lkoZHkkSe Hkkouk dk ifjp; fn;k gSA /keZ dks oxZ fo”ks’k ,oa tkfr fo”ks’k dh ifjf/k rFkk
lhek ls mUeqä dj ije /keZ vkpkj dks loZ lkekU; ds fy, oj.kh; cuk;k gSA

ik.Moksa ds ouokl dky dh ^egkHkkjr* ¼ou0 312&314½ esa ,d dFkk vk;h gSA ,d ckj }Srou
esa ik.Moksa dks cM+h I;kl yxh] cgqr HkVdus ij Hkh mUgsa dgha ikuh ugha feykA vUr esa /keZjkt ;qf/kf…j
us ,d LFkku ij gfj;kyh ns[kdj udqy dks ogka¡ ikuh ykus ds fy, HkstkA udqy ogk¡ x;s vkSj mUgksaus
ikuh ls Hkjk gq, ,d rkykc ns[kkA ml rkykc esa T;ksa gh os ikuh ihus ds fy, m|r gq,] fd mUgsa ;g
vkdk”kok.kh lquk;h nh & bl rkykc ds ikuh ij esjk vf/kdkj gSA igys esjs iz”uksa dk mÙkj nks] rc
ikuh ihvks] fdUrq I;kl ds dkj.k udqy brus O;kdqy Fks fd vkdk”kok.kh ij /;ku u nsdj os ikuh ihus
yxsA ikuh dk Li”kZ djrs gh os ewfPNZr gksdj /kjrh ij fxj iM+sA tc udqy dks x;s cgqr foyEc gks
x;k] rks /keZjkt us lgnso dks ogk¡ Hkstk] os Hkh udqy dh Hkk¡fr ewfPNZr gksdj /kjrh ij fxjsA ;gh n”kk
Øe”k% vtqZu vkSj Hkhe dh gqbZA vUr esa /keZjkt Lo;a ogk¡ x;sA pkjksa Hkkb;ksa dks e`r ik;k ns[kdj mUgksaus
cM+k foyki fd;kA ijh{kk gsrq tc os ikuh ihus ds fy, rkykc esa x;s] rks mUgsa Hkh ogh ok.kh lquk;h nhA
muds lEeq[k ,d ;{k [kM+k FkkA

/keZjkt us ;{k ls iz”u djus ds fy, dgkA ;{k us vusd iz”u fd;s vkSj /keZjkt us mudk mÙkj
fn;kA ftKklk dh iwfrZ gksus ij lUrq„ gksdj ;{k us dgk & gs jktu~] vkius esjs iz”uksa dk lgh vkSj
lUrks’ktud mÙkj fn;k gSA blfy, vius e`r Hkkb;ksa esa ftl ,d dks vki pkgsa] mls eSa thfor dj
ldrk gw¡A bl ij ;qf/kf…j us dgk & ^d`i;k esja s dfu… HkkbZ udqy dks thfor dj nsAa * ;g lqudj ;{k
us vk§k;Z fefJr ok.kh esa dgk & ^jktu~] vki jkT;ghu gksdj ou esa HkVd jgs gSaA vkidks “k=qvksa ds
lkFk laxzke djuk gSA vr% vki vius ijkØeh HkkbZ Hkhe ;k vtqZu dks thfor djus dh bPNk izdV
djsAa *

bl ij /keZjkt ;qf/kf…j us dgk & gs ;{k ! ouokl dk d„ vkSj “k=qvksa ds lkFk laxzke dk
fo/kku rks yxk gh gqvk gSA fdUrq euq’; dks /keZ ls P;qr ugha gksuk pkfg,A ^tks /keZ dh j{kk djrk gS]

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/keZ Lo;a mldh j{kk djrk gS* ¼/keksZ j{kfr jf{kr%½] dqUrh vkSj eknzh] nksukas esjh ekrk,¡ gSa] dqUrh dk iq=
eSa thfor gw¡A esjh nwljh ekrk eknzh dk iq= Hkh thfor jgs] blfy, vki udqy dks gh thou&nku
nhft,A* ;{k us dgk & ^/keZjkt] vki cM+s mnkj gSA vr% vkids pkjksa HkkbZ thfor gks tk;saA eSa rqEgkjk
firk /keZ gw¡A rqEgsa ns[kus rFkk rqEgkjs /keZ dh ijh{kk ysus ds fy, gh vk;k Fkk*A

vk/kqfud fo”o us izR;sd O;fDr dks /kkfeZd LorU=rk dk vf/kdkj iznku fd;k gSA /keZ ds bl
lqjf{kr vf/kdkj dk lnqi;ksx ge ekuo psruk ds fodkl ds fy, dj ldrs gSaA MkWDVj jk/kkd`’.ku~ us
fy[kk gS & ^/keZ pje lÙkk dh izR;{k le> ¼cqf)½ gSA ;g izdk”kksÆo dh voLFkk dh izkfIr gSA*
izdk”kksÆo dh ;g voLFkk gh ^Hkxon~xhrk* dh ^len`f’V* gS vkSj bl izdkj dk len`f’V&lEié ekuo
gh O;f’V rFkk lef’V dks u;k vkyksd ns ldrk gSA ekuork dks u;k vkyksd nsus okys vusd egkiq#’k
le;&le; ij bl i`Foh ij vorfjr gq, gSa vkSj mUgksua s }U}ksa rFkk fo’kerkvksa dk fuokj.k dj bfrgkl
ds i`…ksa ij /keZ dks mtkxj fd;k gSA

bfrgkl ds ifjizs{; esa /kkfeZd ijEijk dk vuq”khyu djus ij izrhr gksrk gS fd lalkj ds gj
fgLls esa /kkfeZd la?k’kksZa us euq’;kas ds vkilh }U}ksa dks c<+k;k vkSj vlÆko ds okrkoj.k dks QSyk;kA
fdUrq vk/kqfud fo”o iqjkuh /kkfeZd ladh.kZrkvksa dh iqujko`fÙk ds i{k esa ugha gSA fo”o dh loksZPp laLFkk
la;qä jk’Vªla?k us 1948 esa ekuokf/kdkjksa ds vius ?kks’k.kk&i= esa izR;sd O;fä dks fopkj] foosd rFkk /keZ
dh Lora=rk dk vf/kdkj fn;k gSA og viuh vkLFkk rFkk /keZ dks cnyus dk vf/kdkjh gS vkSj mlds
bl ekSfyd vf/kdkj esa dksbZ Hkh gLr{ksi ugha dj ldrkA mldh ;g /kkfeZd LorU=rk lafo/kku rFkk
dkuwu dh n`f’V eas lqjf{kr gSA bl ?kks’k.kk&i= dk ;g lqizHkko vc vf/kd n`<+rj gksrk tk jgk gS fd
vyxko dh Hkkouk f”kfFky iM+rh tk jgh gS vkSj vkilh vknj&Hkko rFkk lkeatL; dk ekxZ iz”kLr gksrk
tk jgk gSA bl vkilh feyu ls /keksZa dh thouh “kfä dks vf/kd cy feyk gSA bl /kkfeZd ,drk us
fo”o esa izse] d#.kk rFkk lgkuqHkwfr ds lEcU/kksa dks c<+k;k gSA

izR;sd euq’; esa vkt bl le> dh vko”;drk rFkk vis{kk gS fd og ;g vo/kkj.k djs fd /keZ
vkLFkk dh ,d yhd ek= ugha gS] ,d ,slh mís”; jfgr] vuis{;] izfØ;k ugha gS] ftldks ge vk¡[k e¡wn
dj] eu&efLr’d ds dikV cUn dj] fuokZg ek= ds fy, viuk dj pysAa cfYd og ,d ,slk
vuq”kklu gS] ftlds lqugjs rUrqvksa ls fo”o leqnk; vkc) gSA lsok] R;kx] ijksidkj] lgkuqHkwfr vkSj
izse & /kekZuq”kklu ds ;s ,sls vkn”kZ gSa] tks /keZ dh mit gSa rFkk ftudks viukus ls] pfjrkFkZ djus ls]
QSykus ls leLr ekuork dks ,d lw= esa fijks;k tk ldrk gSA ekuo&eaxy ds fy,] fo”o&dY;k.k ds
fy, /keZ gh ,dek= ,slh vuU; “kfä gS] ftlds }kjk vk”kadkvksa] }U}ksa] Hk;ks]a vfo”oklksa rFkk ladVksa ls
ekuork dks lqj{kk iznku dh tk ldrh gSA

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 Hkkjr esa /keZ vkSj U;k; dk ewy lzksr ^_r~* ekuk x;k gSA ogh leLr pjkpj dk fu;ked gSA
mlh ls /keZ dk mn; gqvkA ftlds vkns”kksa ij jktk vkSj iztk nksuksa izfrc) gSaA leLr oSfnd ;qxhu
/keZO;oLFkk _r~ ij vk/kkfjr Fkh vkSj ogh /keZlw=ksa rFkk Le`fr;ksa ds fof/k&fo/kkuksa dk vk/kkj cukA

oSfnd _f’k;ksa us ftl txRikouh /keZxaxk dks cgk;k gS] og ekuo ek= ds fy, leku #i ls
lsO; gSA /keZ dh bl O;kid Hkkjrh; n`f„ esa fojks/k] oSeuL; rFkk }s’k dh Hkkouk ugha gSA mldh oxZxr
rFkk tkfrxr lhek,¡ ugha gSA blds fy, og leku #i ls xzká ,oa mikns; gSA /keZ dh blh O;kid
yksdn`f„ dks ^egkHkkjr* ¼ou0 131A111½ esa dgk x;k gS & ^tks /keZ nwljs /keZ ds fy, ck/kd gks] og /keZ
ugha] vfirq dq/keZ gSA /keZ rks okLro esa og gS] tks fdlh vU; /keZ dk fojks/k ugha djrkA ,sls /keZ dk
vkpj.k ,oa izfrikyu djuk Js;Ldj gS &

/keZa ;ks ck/krs /keksZ u l /keZ% dq/keZ rr~A

vfojks/kkÙkq ;ks /keZ% l /keZ% lR;foØee~AA
fojksf/k"kq eghiky fuf§kR; dq# yk?koe~A
u ck/kk fo/krs r= ra /keZa leqikpjsr~AA
/keZ Hkkjr dh izk.k”kfä gSA ;g ,d ,slh vkReT;ksfr gS] tks izR;sd Hkkjrh; ds vUrjl~ esa] vkRek
esa O;kIr gSA ;gh dkj.k gS fd /keZ ds izfr bruh mnkÙk ,oa mnkj /kkj.kk fo”o ds fdlh Hkh jk’Vª dh
/keZ&ijEijk esa ns[kus dks ugha feyrhA nq%[k ls larIr izkf.k&txr~ dk nq%[k nwj djus ds mís”;] Lo;a
nq%[k dks oj.k djus dh ,slh fnO; /kkj.kk lalkj ds fdlh Hkh /kekZuq;k;h lekt esa ns[kus dks ugha feyrh
gS & ^^eq>s jkT;ksiHkksx dh dkeuk ugha gSA eSa rks nq%[kksa ls larIr izkf.k;ksa dks nq%[k ls NqVdkjk fnykuk
pkgrk gw¡A bldk mik; D;k gS\ fd ftlls eSa nq%f[krksa ds vUr%dj.k esa izos”k dj vkthou nq%[k dk
mi;ksx dj ldw¡ &

u Roga dke;s jkT;a u LoxZa u iquHkZoe~A

dke;s nq%[krIrkuka izkf.kukefrZuk’kue~AA
d§kkL; L;knqik;ks·= ;suk·ga nq%f[krkReuke~A
vUr% izfo’; Hkwrkuka Hkos;a nq%[kHkkd~ lnkAA

/keZ dh lukrurk vkSj mlds ijEijkxr bfrgkl dh vksj tc ge n`f„ikr djrs gSa] rks
yxrk gS fd oxksZa] “kk[kkvksa] lEiznk;ksa rFkk iUFkksa ds #i esa mldk tks foHkktu dk #ikUrj.k rFkk
ukekUrj.k fd;k x;k gS] mlls mlds ewy miknkuksa ij dksbZ izHkko ugha iM+rk gSA vk;Z] lukru] oSfnd]

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fgUnw] “kSo] oS’.ko] tSu vkSj ckS) vkfn mlds #ikUrj gSA os mlds bfrgkl ds fofHké v/;k; gSa] fdUrq
muls mldh v[k.Mrk esa dksbZ vUrj ugha vkus ikrkA bl n`f„ ls ;fn Hkkjr ds /kkfeZd fodkl dk
v/;;u fd;k tk;s] rks lHkh /keksZa dk ewy lzkrs ,d gh fn[kk;h nsrk gSA cgq/kk ;g dgk tkrk gS fd
oSfnd /keZ ls tSu&ckS)&/keksZa dk fojks/k gS] fdUrq okLrfodrk ;g gS fd tSu Lo;a dks ^fgUnw* dgrs gSaA
fgUnqRo vFkok fgUnw /keZ oSfnd /keZ dk gh #ikUrj gSA tSuer esa ^fgUnw* “kCn dh O;qRifÙk dh xbZ gSA
ogk¡ ^fg* ls ^fgalk* vkSj ^nw* ls ^nwjhdj.k* dk vFkZ fd;k x;k gSA vFkkZr~ tSuer esa fgUnw mls dgk x;k
gS] tks fgalk ls nwj gSA vr% vfgalk ftldk eq[; y{; gS] ,slk tSu /keZ gh okLro esa ;FkkFkZ fgUnw /keZ
vFkok oSfnd /keZ gSA

blds vfrfjä osnksa rFkk Le`fr;ksa esa /keZ dk tks Lo#i izfrikfnr gS] tSu/keZ esa Hkh mlh dks
Lohdkj fd;k x;k gSA Le`fr&izfrikfnr oSfnd rFkk fgUnw /keZ esa /kS;Z] {kek rFkk ri vkfn /keZ ds tks
nl miknku crk;s x;s gSa] vkaf”kd ifjorZu ds lkFk tSu /keZ esa Hkh mlh dks Lohdkj fd;k x;k gSA tSu
/keZ ds “kkfUr] eknZo rFkk vktZo vkfn nl miknkuksa esa Bhd ;gh ckr dgh xbZ gSA

orZeku Hkkjrh; lafo/kku esa Hkkjr dks ^/keZfujis{k jkT;* ¼lsD;wyj LVsV½ ?kksf’kr fd;k x;k gSA
;gh /keZfujis{krk gh oLrqRk% vkt ds lektokn dh vk/kkjf”kyk gSA ^lsD;wyj* ds fy, fo}kuksa us
^ykSfdd* i;kZ; fn;k gSA bl n`f„ ls /keZfujis{k mls dgk x;k gS] ftlesa leLr /keksZa rFkk lEiznk;ksa dk
leku vknj gSa] vkSj lcdks viuh méfr djus dk leku vf/kdkj gSA ogk¡ fdlh /keZ&fo”ks’k ;k lEiznk;
fo”ks’k ds izfr dksbZ i{kikr ugha gSA ^/keZfujis{krk* ls /keZghurk ;k /keZ dh mis{kk ugha gSA izk;% izR;sd
ns”k ;k jkT; esa fdlh /keZ fo”ks’k dks ekuus okyksa dh la[;k vf/kd gksrh gSA mnkgj.k ds fy, Hkkjr esa
fgUnw] ikfdLrku esa eqlyeku] btjkby esa ;gwnh] ;wjksi&vejhdk&vkLVsªfy;k esa bZlkbZ vkSj Jhyadk] cekZ
vkfn esa ckS) cgqla[;d gSaA bu ns”kksa esa cgqla[;d /kekZuq;kf;;ksa ds dkj.k fdlh /keZfo”ks’k dk vf/kd
izHkko gksuk LokHkkfod gSA Hkkjr dks NksM+dj izk;% lHkh ns”kksa ds lafo/kku esa fdlh /keZfOk”ks’k dk lEcU/k
gSA fdUrq Hkkjr esa lafo/kku fdlh /keZfo”ks’k dks dksbZ egÙo ugha fn;k x;k gSA Hkkjrh; lafo/kku ds
f}rh; Hkkx ds vuqPNsn 5 vkSj r`rh; Hkkx ds vuqPNsn 15] 16] 21] 25] 28 vkSj 30 esa /keZfujis{k
fl)kUrksa dh foLr`r O;k[;k dh xbZ gS vkSj Hkkjr ds yksdra= ij vk/kkfjr ;gk¡ ds fofHké /kekZuq;k;h
fuokfl;ksa ds /keksZa dks leku ekU;rk ,oa LorU=rk nh x;h gSA

/keZfujis{krk dk vk/kkj lfg’.kqrk gSA vFkkZr~ ftrus Hkh /keZ rFkk /kekZuq;k;h ;gk¡ fuokl djrs gSa
vkSj muds izfr lgu”khyrk] mnkjrk vkSj lekuHkko ds O;ogkj dh O;oLFkk dh xbZ gSA

;g /keZfujis{krk gh ;gk¡ dh jk’Vªh;rk gSA blh jk’Vªh;rk ds vk/kkj ij vUrjkZ’Vªh; lEcU/kksa dh

LFkkiuk gqbZ gSA okLro esa jk’Vªh;rk dh fLFkjrk gh vUrjkZ’Vªh;rk dk ekxZ iz”kLr dj ldrh gSA

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 /keZfujis{krk dk vk”k; /keZghurk] /keZ ds izfr mnklhurk ;k v/kkfeZdrk ugha gSA ;gk¡ ds
yksdthou ds lkekftd] jktuhfrd rFkk “kkldh; ftrus Hkh dk;Zdyki gSa] muls fdlh /keZ fo”ks’k dks
;ksftr ;k lEcfU/kr u djuk gh /keZfujis{krk gSA /keZfujis{krk dk vk”k; /keZ”kkL= dh mis{s kk djuk Hkh
ugha gSA mldk lEcU/k bZ”oj ;k ijes”oj dk fojks/k djuk Hkh ugha gSA 19oha “krh ds izfl) fo}ku~
^gksyhvksd* us fy[kk gS fd ^ekuo dh HkykbZ ds fy, ekuo iz;ksx }kjk] ekuo cqf) }kjk tks Hkh ckrs
laHko gksa]s ftUgsa bl thou esa fd;k tk ldrk gS] ftudk lEcU/k bl thou ls gS] ogh ykSfddrk ;k
/keZfujis{krk gSA mlds fopkj Lokra«; rFkk /kekZuqpj.k ds fy, izR;sd O;fä Lora= gSA leLr ukxfjdksa
dks /kkfeZd izpkj dh LorU=rk gSA

jk’Vªfirk egkRek xk¡/kh us /keZ rFkk jktuhfr dks loZFkk i`Fkd~ j[kdj Hkkjr dh /keZuhfr dks fLFkj
fd;k] tc fd ikfdLrku us tkfr] /keZ] laLd`fr vkSj jktuhfr dks ,d lkFk feykdj /keZjkT; ?kksf’kr
fd;kA ia0 usg# us 1945 bZ0 esa ?kks’k.kk dh Fkh fd vktkn fgUnqLrku dh Hkkoh ljdkj /keZfujis{k gksuh
pkfg,A vFkkZr~ og fdlh /keZ fo”ks’k ls lEcfU/kr ugha jgsxh] vfirq lHkh /keksZa ds vuq;kf;;ksa ds izfr
leku lfg’.kqrk cjrh tk;sxhA usg# th us mls /kkfeZd LorU=rk rFkk viuh vUrjkRek ds vuqlkj dk;Z
djus dks Lora=rk dgk gSA blesa mu yksxksa dh Lora=rk Hkh lféfgr gS] tks fdlh Hkh /keZ dks ugha
ekursA mlls /keZikyu dks fu#Rlkfgr fd;k tkrk gSA fdUrq fdlh ds /keZikyu ij dksbZ izfrcU/k ugha
gS] ;fn og fdlh nwljs /keZ dks {kfr ugha igq¡pkrkA

Hkkjrh; lafo/kku dh rRlEcU/kh /kkj.kk dh O;k[;k djrs gq, yksdlHkk ds v/;{k Jh

vuUr”k;ue~ vka;xj us vius Hkk’k.k esa dgk Fkk & ^ge opuc) gS fd gekjk jkT; /keZfujis{k gksxkA
^/keZfujis{k* “kCn ls gekjk ;g vfHkizk; ugha gS fd ge fdlh /keZ esa fo”okl ugha j[krs vkSj gekjs nSfud
thou ls mldk dksbZ lEcU/k ugha gSA bldk vFkZ dsoy ;g gS fd jkT; ljdkj fdlh etgc dks nwljs
dh rqyuk esa u rks lgk;rk ns ldrh gS vkSj u gh izkFkfedrkA blfy, jkT; viuh iw.kZ fujis{k fLFkfr
j[kus dks foo”k gS* A

vkt ds Hkkjr esa fgUnw rFkk fgUnqRo dk izpyu ftl #i esa ns[kus dks feyrk gS] vius iqjkru
Lo#i esa og loZFkk fHké izrhr gksrk gSA vR;Ur iqjkru dky esa gh ^fgUnq* “kCn dk vfLrRo izdk”k esa
vk x;k FkkA _Xosn ¼8A24A27 vkfn½ esa lkr ufn;ksa ds vFkZ esa ^lIrflU/kq* dk vusd ckj mYys[k gqvk
gS] ftls Qkjfl;ksa ds /keZ xzUFk ^tsna vosLrk* esa ^gIrfgUn* dgk x;k gSA u dsoy bl /keZxzUFk es]a vfirq
oSfnd ok³~e; esa Hkh ^l* ds LFkku ij ^g* dk iz;ksx ns[kus dks feyrk gSA mnkgj.kLo#i vFkoZosn
¼20A30A4½ esa ^gfjrk u jag;k* dk fuoZpu djrs gq, fu#Drdkj ;kLd ¼700 bZ0 iwoZ½ us fy[kk gS &
^lfjrks gfjrks HkofUr] ljLoR;ks gjLoR;%*A vFkkZr~ unhokpd ^gfjr~* “kCn dks mPpkj.k&Hksn ds dkj.k
^lfjr~* “kCn le>uk pkfg,A

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 ldkj vkSj gdkj us bl ifjorZu ;k /ofu&Hksn vFkok mPpkj.k Hksn dh ppkZ,¡ Hkkjrh; lkfgR;
esa] vfirq ikf”kZ;uksa ds iqjkru /keZxzUFk ^vosLrk* esa Hkh ns[kus dks feyrh gSA ogk¡ ^flU/kq* ds LFkku ij
^fgUnq* dk iz;ksx gqvk gSA ogk¡ ^g* rFkk ^l* dk blh #i esa mYys[k gqvk gS vkSj mls ns”kokph vFkZ esa
iz;qä fd;k x;k gSA dkykUrj esa ftl izdkj ^flU/kq* dks ^flU/k* vkSj ^fgUnq* dks ^fgUn* dgk tkus yxk]
mlh izdkj muds vFkZ izpyu esa Hkh fHkérk vkrh xbZA dkykUrj esa ^fgUnq* “kCn dks /keZ dk i;kZ; ekuk
tkus yxk vkSj mls Hkkjrh; lekt ds fy, iz;qä fd;k tkus yxk] ftlds vkpkj&fopkj czkã.k
deZdk.M ls lEcfU/kr FksA bl ladqfpr vFkZ esa Hkkjr ds ewy fuoklh tSu&ckS) Hkh mlls Lo;a dks
vyx fu/kkZfjr djus yxsA ^fgUnq* rFkk ^fgUnqRo* dks ^eqlyeku* RkFkk ^bLyke* dk izfr;ksxh ekudj
ikjLifjd fojks/k&Hkkouk dk] /kkfeZd vyxko dk Hkh mlds }kjk izpyu gqvkA /kkfeZd vyxko dh bl
Hkkouk ds ,sfrgkfld izek.k gSa vkSj mlds fy, Lo;a dks ^fgUnq* dgus okys lekt dks ,d ek= nks’kh
le>uk U;k;ksfpr ugha gSA

vius izkphu Lo#i ,oa vFkkZ”k; esa ^fgUnq* “kCn dk iz;ksx u rks fdlh tkfr fo”ks’k ds fy, gqvk
gS vkSj u og fdlh /kkfeZd iUFk ;k er dk cks/kd jgk gSA fgUnw Hkkjr dh laKk Fkh] mldk vfHk/kku
Fkk vkSj ml ns”k ds fuokfl;ksa dks] pkgs og fdlh Hkh tkfr] oxZ ;k lEiznk; dk jgk gks] ^fgUnw* dgk
tkrk FkkA vkt ftldks ^fgUn egklkxj* dgk tkrk gS] vkSj mldk lEcU/k Hkkjr ls LFkkfir fd;k
tkrk gS] oLrqr% og fgUnw vkSj fgUnqRo dh O;kidrk dk gh ,sfrgkfld lk{kh gSA ^fgUn egklkxj* ds #i
esa Hkkjr ds ijEijkxr fgrksa dh j{kk fgUnw ;k fgUnqRo dh mis{kk dj nsus ls lqjf{kr ugha gSA vkt dk
Hkkjr jk’Vª gh fgUnw jk’Vª gS vkSj fgUnqRo dh ijEijkvksa rFkk xfjekvksa ds vk/kkj ij gh mldk viuk
vfLrRo ,oa egÙo cuk gqvk gSA

23

46
 धर्मसूत्रों र्ें नागरिकरों के कर्मव्य औि अधधकाि

प्रतिभा शास्त्री

यह अध्याय वैतिक युग से प्रारं भ होकर धर्मसूत्ों र्ें नागररकों के किमव्ों और

अतधकारों पर केंतिि है। इसर्ें बिाया गया है तक कैसे वैतिक संस्कृति र्ें किमव्ों को
अतधकारों से अतधक र्हत्व तिया गया। धर्मसूत्ों ने सार्ातिक आचरण, राज्य व्वस्था, न्याय,
और नागररक किमव्ों को तवस्तृि रूप से पररभातिि तकया। नागररक किमव्ों को रािनैतिक,
सार्ातिक, और आतथमक रूप र्ें वगीकृि तकया गया है। रािनैतिक किमव्ों र्ें रािा और
नागररकों की परस्पर तिम्मेिाररयां शातर्ल हैं। रािा का र्ुख्य किमव् न्याय और सुरक्षा
सुतनतिि करना था, िबतक नागररकों का किमव् कर अिा करना और सार्ातिक तनयर्ों का
पालन करना था। सार्ातिक किमव्ों र्ें सर्ाि के तवतभन्न वगों के तलए आचार संतहिा
तनधामररि की गई थी। इसर्ें स्त्रस्त्रयों, तवद्यातथमयों, और पशुओं के अतधकारों पर तवशेि ध्यान
तिया गया। स्त्रस्त्रयों को सुरक्षा, तशक्षा, और धातर्मक कृत्ों र्ें भाग लेने का अतधकार तिया गया।
तवद्यातथमयों को तशक्षा प्राप्त करने और गुरु से ज्ञान अतिमि करने का अतधकार था। आतथमक
किमव्ों र्ें कर प्रणाली, व्ापार, और संपति के अतधकारों का उल्लेख है। रािा को कर संग्रह
करने का अतधकार था, लेतकन इसे प्रिा के कल्याण के तलए उपयोग करना अतनवायम था।
अध्याय र्ें यह भी बिाया गया है तक धर्मसूत्ों ने प्रकृति संरक्षण और नैतिकिा पर तवशेि िोर
तिया। वृक्षों, नतियों, और वायु िैसे प्राकृतिक ित्वों की शुद्धिा बनाए रखने के तलए नागररकों
पर तिम्मेिारी डाली गई। इस प्रकार, यह अध्याय धर्मसूत्ों के र्ाध्यर् से भारिीय संस्कृति र्ें
अतधकारों और किमव्ों के संिुलन को सर्झाने का प्रयास करिा है।

परिचय

वैदिक युग से ही धर्मशास्त्रों के बीज दर्लने प्रारम्भ हर जाते हैं। वैदिक र्न्त्रों का अर्म सर्झने के
दलए ही वेिाङ्रों का दवकास हुआ। वेिरों के उपकारक वेिाङ्रों र्ें कल्प सादहत्य का र्हत्त्वपूर्म स्थान है ।
यह सादहत्य सूत्र रूप र्ें उपस्थस्थत र्ा एवों इसी कारर् बरधगम्य भी र्ा, इससे भी अदधक इसकी दवषय
र्हत्ता के कारर् आज भी इसका शाश्वत र्हत्त्व है। ये हर्ारी साोंस्कृदतक परम्परा का भाग रहे हैं।

सूत्र सादहत्य र्ें धर्मसूत्र धर्मशास्त् का ही प्रदतदनदधत्व करते हैं । ये जीवन के सर्ग्र सार्ादजक
व्यवहार र्ें वेि के स्थानापन्न बने रहे , दजनर्ें वैदिक आधार के सार् उस काल की परम्पराओों, व्यवहार,
आचार एवों सिाचार का आवेश हुआ। इनर्ें करई दवषय छूटा नही र्ा । धर्मशास्त्रों र्ें व्यवहार (Practice)
और आिशम का सर्न्वय हुआ है । र्नुष्य ने सर्ाज के सोंचालन के दलए प्रबुद्ध नागररकरों की सहर्दत से
एक िै दनक आचार की व्यवस्था स्थादपत की है दजसे पौरुषेयी व्यवस्था या सर्य (सार्याचाररक धर्म) कहते
है । इन्ीों की व्याख्या करना धर्मसूत्ररों का प्रर्ुख दवषय रहा है।1 टीकाकार हरित्त ने सर्य के तीन भेि
र्ाने हैं – दवदध, दनयर् और प्रदतषेध । इनर्ें सभी प्रकार के कर्ों का सर्ावेश हर जाता है ।


उपतनबंधक, सहकाररिा तवभाग, रािस्थान सरकार। लेस्त्रखका ने संस्कृि र्ें पीएचडी िवाहरलाल नेहरू तवश्वतवद्यालय, नई
तिल्ली से की है ।

1
अर्ातस्सार्याचाररकान् धर्ाम न् व्याख्यास्यार्ः । आप. धर्म. १.१.१

47
 इस सार्ादजक व्यवस्था तर्ा इसके दवकास से राज्य की अवधारर्ा उि् भूत हुई तर्ा न्याय और
सुरक्षा की भावना आयी । इनके उत्तररत्तर दवकास से प्रत्येक के कत्तमव्य दनदित कर दिये गये । सर्ाज र्ें
प्रत्येक व्यस्थि परस्पर कैसा आचरर् करे तर्ा इस आचरर् का सर्ाज की प्रगदत र्ें क्या यरगिान हो?
इसी आधार पर र्हदषमयरों ने दवदभन्न धर्ों (दनयर्रों) कर सोंकदलत दकया । इसे आचार सोंदहता (Code of
Conduct) कहा जाता है। यद्यदप इस व्यवस्था र्ें धर्मज्ञ (प्रबुद्ध नागररक) प्रर्ार् हैं परन्तु सार्ान्य र्नुष्य
कर कत्तमव्य के सोंिभम र्ें अोंधानुकरर् नहीों करना चादहए क्यरोंदक र्नुष्य र्ें स्वाभादवक िु बमलता हरती है ।
कर्ों के सम्बन्ध र्ें उसे स्वदववेक का आश्रय लेना चादहए । यह दनयर् सूत्रकार आपस्तम्ब ने दिया है।2

यह प्रबुद्ध नागररकरों (धर्मज्ञरों) द्वारा दनदर्मत सर्ाज का सोंदवधान र्ा, सर्ाज-सोंचालन की वैधादनक
व्यवस्था र्ी दजसका आधार राज्य न हरकर सर्कालीन सार्ादजक आचार-दवचार और परम्पराएँ र्ी ।
राज्य इनका दनर्ामर् नहीों करता र्ा, अदपतु इस व्यवस्था कर सोंचादलत एवों दनयोंदत्रत करता र्ा । िे श, जादत,
कुल, वगम, स्थानीय सोंघ आदि अनेक तत्त्वरों के दनयर् दवशाल काल खण्ड के पिात् आचार के रूप र्ें
प्रदतदित हर गये । सर्ाज के दनर्ामर् र्ें अनेक तत्त्व सर्ादहत रहते हैं ; ये सर्यानुसार पररवतमनशील रहते
हैं; दवदभन्न आधाररों पर वैदवध्य रहता है, अतः उनके दलए वैदवध्यपूर्म सोंदहता की आवश्यकता र्ी । यदि एक
वगम कर ध्यान र्ें रखकर दनयर् बनाये जाते तर िू सरे के सम्मान और अदधकाररों का उल्लोंघन हरने की
सोंभावना रहती है तर्ा सार्ादजक न्याय नहीों हर पाता है । इसी कारर् धर्मसूत्रकाररों ने जीवन के प्रत्येक पक्ष
का सर्ावेश करते हुए दवदध-दवधानरों का सोंकलन दकया है । इसी का पररपक्व रूप धर्मशास्त्ीय परम्परा
के आगे के ग्रन्रों र्ें दर्लता है ।

दवदभन्न कालखण्डानुसार प्राप्त धर्मसूत्ररों कर िे खकर यह अनुर्ान लगाया जा सकता है दक धर्मसूत्ररों

का काल एक हजार वषों का (८०० ई. पू. से ईसा की प्रर्र् सिी िक) रहा हरगा। प्रर्ुख धर्मसूत्र गौतर्,
आपस्तम्ब, बौधायन, वदशि, दवष्णु, हारीत आदि रहें हैं ।

भारतीय सोंस्कृदत र्ें अदधकाररों की अपेक्षा कत्तमव्य पर अदधक बल दिया गया है । कत्तमव्य का
दववेचन वैदिक काल से ही दर्लता है । वैदिक काल र्ें कत्तमव्यरों के सोंिभम र्ें ऋत की अवधारर्ा दवदशष्ट है
दजसर्ें सृदष्ट के सभी प्रादर्यरों के दलए कत्तमव्य दनदित र्े । यह व्यवस्था शाश्वत और अपररवतमनीय र्ी ।
इसका सोंरक्षक वरूर् िे वता कर र्ाना गया है जर सभी कर अपने-अपने कर्ों र्ें सोंलग्न रखते है । इसका
पालन न करने पर िण्ड का दवधान र्ा । ऋग्वेि र्ें उस्थल्लस्थखत है दक दजस शस्थि से सभी स्व-कत्तमव्य र्ें
रत रहते हैं वह ‘ऋत’ की शस्थि है, जर सर्ग्र दवश्व, सर्ाज, व्यस्थि, जीव-जन्तु एवों िै वी शस्थियरों का आधार
है।3 ऋत सत्य और धर्म का रूप धारर् करने र्ें कत्तमव्य का पयामय हर गया । वस्तुतः यह दनयर्रों की सोंदहता
र्ी जर दकसी सवोच्च शस्थि के द्वारा दनदर्मत न हरकर स्वयों सवोच्च शस्थि र्ी । उसी के द्वारा आकाश, दिव
और अन्तररक्ष का सोंचालन एवों दनयोंत्रर् रहता र्ा ।4 इसी के कारर् दनबमल-सबल र्ें सुरक्षा की स्थस्थदत बनी

2
दृष्टर धर्मव्यदतक्रर्स्साहसों च पूवेषार्् । तेषाों तेजरदवशेषेर् प्रत्यवायर न दवद्यते । तिन्वीक्ष्य प्रयुञ्जानस्सीित्यवरः ।
आप. धर्म. २.१३.७-९
3
ऋतेन ऋतों धरूर्ों धारयन्त यज्ञस्य शाके परर्े व्यरर्न् ।
दिवर धर्मन्धरुर्े सेिुषर नृञ्जातैरजाताँ अदभ ये ननक्षुः ॥ ऋ. ५.१५.२
4
यतिरिे दत सूयोऽस्तों यत्र च गच्छतीदत प्रार्ाद्वा एष उिे दत प्रार्ेऽस्तर्ेदत तों दिवािदक्ररे धर्म स एव अद्य स उ श्व इदत ।
बृह. उप. १.५.२३

48
रहती है और दकसी के अदधकाररों का उल्लोंघन नहीों हरता है ।5 यह एक नैदतक दनयर् सोंदहता र्ी जर राजा
के अभाव र्ें भी सावमकादलक सदक्रय र्ी ।

1. नागरिक-कर्त्मव्य

धर्मसूत्ररों र्ें नागररकरों के कत्तमव्यरों का दवभाजन दवदभन्न रूपरों र्ें दर्लता हैं । इन्ें हर् राजनैदतक,
सार्ादजक और आदर्मक र्ें दवभादजत कर सकते हैं ।

i. िाजनैधर्क कर्त्मव्य

राजनीदतक कत्तमव्यरों का सम्बन्ध शासन व्यवस्था से है । शासन से ही व्यस्थियरों, जीवरों, सार्ादजक

सोंस्थाओों तर्ा उनके कत्तमव्यरों और अदधकाररों की रक्षा सम्भव हरती है । प्रत्येक शासन पद्धदत र्ें धर्म का ही
सर्ावेश रहता है जर कत्तमव्य का ही पयामय है । व्यस्थि के राजनीदतक कत्तमव्यरों र्ें राजा के कत्तमव्य और
नागररकरों के शासन के प्रदत कत्तमव्य सस्थम्मदलत हैं । राजा के कत्तमव्यरों र्ें ही नागररकरों के अदधकार
सर्ावेदशत रहते हैं ।

सर्ाज का सोंचालन, सर्ाज र्ें सुख, शास्थन्त एवों अभय की स्थापना, नागररकरों के अदधकाररों की
रक्षा तर्ा न्याय-व्यवस्था कर सुदनदित करना राजा के प्रर्ुख कत्तमव्य र्े । प्रजा रक्षर् का कत्तमव्य इतना
र्हत्त्वपूर्म र्ाना जाता र्ा दक राजा प्रजा के सुख र्ें सुखी और िु ः ख र्ें िु ः खी हरने का अनुभव करता र्ा ।6
गौतर् के अनुसार सर्स्त प्रादर्यरों की रक्षा करना, वर्ामश्रर् व्यवस्था की रक्षा और पदतत जनरों कर श्रेि र्ागम
पर चलने की प्रेरर्ा िे ना राजा के कत्तमव्य हैं ।7 वह न केवल र्नुष्यरों की रक्षा करता र्ा अदपतु सर्स्त जीव
तर्ा प्रकृदत ( सवमभूतानार्् ) की भी रक्षा करता र्ा । कौदटल्य का भी दवचार है दक राजा चाररों वर्ों और
आश्रर्रों के आचार की रक्षा करें और नष्ट हरते हुए धर्म की स्थापना करे ( कत्तमव्य दवर्ुख जनरों कर स्वकत्तमव्य
र्ें रत करे ) ।8 इन्रनें तर यहाँ तक दलखा है दक यदि प्रव्रज्या दलए हुए सोंन्यासी भी दर्थ्याचारी हर तर राजा
उन्ें िण्ड िे कर कत्तमव्य-पर् पर ले आये । एक कल्यार्कारी राज्य की स्थापना के दलए वर्ामश्रर् धर्म की
स्थापना आवश्यक र्ी ।9

वस्तुतः सर्ाज का प्रर्ुख हरने के कारर् राजा नागररकरों द्वारा अनुकरर्ीय र्ा । सर्स्त राज्य उसी
के द्वारा पादलत र्ा । गौतर् के अनुसार चाररों वर्ों के लरगरों, वृक्षादि बढ़ने एवों घटने वाले, लुप्त चेतना वाले
स्थावर पिार्ों, पशु आदि चलने वाले जीवरों, उड़ने वाले पदक्षयरों और सरकने वाले सपों का जीवन राजा पर
आदश्रत हरता है -

र्यरश्चर्ुधवमधस्य र्नुष्यजार्स्यान्तः सोंज्ञानाों चलनपर्नसपमणानार्ायर्त्ों जीवनर््॥ 10

5
अर्रऽबलीयान् बलीयासर्ाशोंसन्ते धर्ेर् यर्ा राज्ञैव । बृह. उप. १.४.१४
6
प्रजासुखे सुखी राजा ति् िु ः खे यि िु स्थखतः ।
स कीदतमयुिर लरकेस्थिन्प्रेत्य स्वगे र्हीयते ॥ दवष्णु धर्मसूत्र, ३.९८
7
राज्ञरऽदधकों रक्षर्ों सवमभूतानार्् । न्यायिण्डत्वर्् । गौ. धर्म. २.१.७-८
तर्ा वर्ाम श्रर्ाों ि न्यायतरऽदभरक्षेत् । चलतिैतान्स्स्वधर्े स्थापयेत् । गौ. धर्म. २.२.९-१०
8
चतुवमर्ाम श्रर्स्यायों लरकस्याचाररक्षर्ात् ।
नश्यताों सवमधर्ाम र्ाों राजधर्मप्रवतमकः ॥ अर्मशास्त्, ३.१
9
प्रव्रज्यासु वृर्ाचारान् राजा िण्डे न वारयेत् । वही, ३.१६
10
गौत्तर् धर्मसूत्र, १.८.२

49
 इनकी रक्षा करना राजा का िादयत्व हरता है । सर्ाज की रक्षा का िादयत्व िर प्रकार के नागररकरों
के ऊपर दनभमर र्ा -१. राजा और २. बहुश्रुत ब्राह्मर् ।11 ये ही अन्य नागररकरों कर स्वकर्म र्ें दनयुि करते
र्े । यहाँ ब्राह्मर् से तात्पयम प्रबुद्ध नागररकरों से हैं क्यरोंदक सूत्रकार ने बहुश्रुत दवशेषर् प्रयुि दकया है ।
इससे यह सूदचत हरता है दक रक्षा जैसा र्हान् कायम दकसी दशदक्षत, प्रबुद्ध और दजम्मेिार व्यस्थियरों कर ही
दिया जाता र्ा । सूत्रकाल र्ें इनकी यरग्यता दनधामररत र्ी । गौतर् ने इन िरनरों के तीन कायम पररगदर्त दकये
हैं – प्रसूदत, रक्षा, कर्ों के अदतक्रर्र् से रक्षा ।12 प्रसूदत से अदभप्राय अदभवृस्थद्ध से है , सभी बाधाओों कर िू र
कर राज्य की उन्नदत करना है ।

राजा शत्रुओों के भय से भी प्रजा की रक्षा करे ।13 युद्ध र्ें दवजय प्राप्त करना तर्ा अपने राज्य की
सुरक्षा करना र्हत्त्वपूर्म कायम है । परन्तु युद्ध र्ें अनाचार नही करना चादहए । र्ानवीय भावनाओों तर्ा
नैदतक र्ूल्यरों कर ध्यान र्ें रखते हुए बौधायन ने दनिे श दकया है दक राजा कर भयभीत, सुरापान से र्त्त,
पागल, चेतनाहीन, कवचादि आयुधरों से रदहत, स्त्ी, बालक, वृद्ध और ब्राह्मर् से युद्ध नहीों करना चादहए –

भीर्र्र्त्रन्मर्त्प्रर्र्त्धवसन्नाहस्त्रीबालवृद्धब्राह्मणैनम युध्येर्ाऽन्यत्ाऽऽर्र्ाधयनः ।14

ऎसे ही दवचार आपस्तम्ब ने भी व्यि दकये हैं दक दजन्रोंने हदर्यार डाल दिये हरों, जर अस्त-व्यस्त
केशरों के सार् िरनरों हार् जरड़कर िया की भीख र्ाँग रहे हर अर्वा रर्क्षेत्र से पलायन कर रहें हरों, उनका
वध राजा कर नही करना चादहए ।15 बौधायन ने कहा है दक शत्रु पर बछीिार अस्त्रों से या दवषदिग्ध अस्त्रों
से प्रहार न करे ।16 वतमर्ान र्ें दवश्व र्ें नैदतकता कर भूलकर परर्ार्ु अस्त्रों तर्ा जैव रसायदनक अस्त्रों का
अोंधाधुोंध प्रयरग हर रहा है । ऎसे र्ें यह उपिे श व्यावहाररक है ।

राजा का अन्य र्हत्त्वपूर्म कायम र्ा न्याय एवों िण्ड की व्यवस्था करना । यह व्यवस्था नागररकरों के
अदधकाररों की रक्षा करती र्ी । वस्तुतः अदधकाररों का हनन हरने की स्थस्थदत र्ें न्याय ही एकर्ात्र सोंरक्षक
हरता है । “जब तक िे श अर्वा राज्य र्ें राजा यह सुदनदित नही करता दक छरटे -बडे , दवद्वान्-अदवद्वान्,
धनी-दनधमन, प्रदतदित-अप्रदतदित का भेि दकये दबना प्रत्येक व्यस्थि कर, दकसी सन्दे ह या दववाि की स्थस्थदत
र्ें, धर्मसोंदहता के अनुसार न्याय दर्लेगा, तब तक आन्तररक सुरक्षा अयर्ार्म ही है ।”17 न्यायपूवमक िण्ड
िे ना राजा का कत्तमव्य है ।18 न्याय से ही अपराधी की दनवृदत्त हरती है , िण्ड से ही उसके पाप िू र हरते हैं
।19 उसके सार् ही पीदड़त व्यस्थि के प्रतीकारार्म भी िरष का दनष्पक्ष आकलन आवश्यक हरता है ।20 यदि
राजा दनष्पक्ष रूप से न्याय नही करता है तर वह स्वयों भी पाप का भागी हरता है ।21 पाप के भय से इसे

11
द्वौ लरके धृतव्रतौ राजा ब्राह्मर्ि बहुश्रुतः । गौ. धर्म. १.८.१
12
प्रसूती रक्षर्र्सोंकरर धर्मः । गौ. धर्म. १.८.३
13
भये दवशेषेर् । गौ. धर्म. २.१.१४
14
बौ. धर्म. १.१०.१८.११
15
न्यस्तायुधप्रकीर्मकेशप्राञ्जदलपराङावृत्तानार्ायाम वधों पररचक्षते । आप. धर्म. २.५.१०.१२
16
न कदर्मदभनम दिग्धैः प्रहरे त् । बौ. धर्म. १.१०.१८.१०
17
धर्मसूत्ररों र्ें राजधर्म एवों न्याय व्यवस्था, सुधा शर्ाम , पृ. ८१
18
न्याय्िण्डत्वर्् । गौ. धर्म. २.१.८
स्वराष्टरे न्यायिण्डः स्यात् । दव. धर्म. ३.९६
19
राजदभधृमतिण्डास्तु कृत्वा पापादन र्ानवाः ।
दनर्मलाः स्वगमर्ायास्थन्त सन्तः सुकृदतनर यर्ा ॥ वदस. धर्म. १९.३०
20
वैरदनयाम तनार्् । बौधा. धर्म. १.१०.१९.१
21
प्राप्तदनदर्त्ते िण्डाकर्मदर् राजानर्ेनः स्पृशदत । दह. धर्म. २७.६.१३

50
राजा का अदनवायम कत्तमव्य बना दिया गया है । र्हाभारत र्ें वदर्मत है दक दजस सर्य िण्डनीदत दनजीव हर
जाती है, उस सर्य तीनरों वेि डूब जाते हैं , सब धर्म अर्ाम त् सोंस्कृदत के आधार चाहे वे दकतने ही प्राचीन हर,
पूर्म रूप से नष्ट हर जाते हैं । जब प्राचीन राजधर्म का त्याग कर दिया जाता है , तब वैयस्थिक आश्रर्-धर्म
के सर्स्त आधार नष्ट हर जाते हैं ।22 स्पष्ट है सार्ादजक स्थस्थदत राजधर्म के या राजनीदतक कत्तमव्यरों के पालन
करने पर अस्थस्तत्व र्ें रह सकती है ।

ii. सार्ाधजक कर्त्मव्य

प्राचीन भारत र्ें सम्पूर्म सार्ादजक ढाोंचा वर्ामश्रर्-व्यवस्थाओों के आधार पर दनदर्मत और व्यवस्थस्थत
र्ा । यद्यदप यह व्यवस्था राज्य के द्वारा दनदर्मत नही र्ी, परन्तु राज्य इसका दनयार्क और सोंचालक र्ा ।
आपस्तम्ब धर्मसूत्र स्पष्ट शब्रों र्ें कहता है दक जर भी व्यस्थि वर्ामश्रर् धर्ों या दनयर्रों का उल्लोंघन करता
है अर्वा प्रदतदषद्ध आचरर् करता है उसे राजा कारागार र्ें डाले और तब तक रखे जब तक वह दनयर्रों
का पालन और दनदषद्ध से दनवतमन स्वीकार न कर ले; इतने पर भी सुधार न आये तर राज्य से दनवामदसत कर
िे ।23 सर्ाज र्ें गृहस्थ का सवामदधक र्हत्त्व र्ा क्यरोंदक अन्य सभी प्रकार के नागररक गृहस्थ का आश्रय
लेकर ही रहते हैं । गृहस्थ पञ्च र्हायज्ञ, ऋर् त्रय, अदतदर् सत्कार, अन्याश्रर्रों के प्रदत कर्म आदि के र्ाध्यर्
से अपना सार्ादजक कत्तमव्य पूर्म करता र्ा । पाँच र्हायज्ञ हैं - भूतयज्ञ, र्नुष्ययज्ञ, दपतृयज्ञ, िे वयज्ञ एवों
ब्रह्मयज्ञ ।24 तीन प्रकार के ऋर् ऋदष ऋर्, िे व ऋर्, दपतृ ऋर् हैं ।

सभी नागररकरों कर स्त्ी की रक्षा करने का प्रयत्न करना चादहए । आपस्तम्ब के अनुसार जोंगल र्ें
यदि स्त्ी दर्ले तर उससे वातामलाप अवश्य करे ।25 वन की दवकट पररस्थस्थदतयरों र्ें स्त्ी कर िे खकर स्वयों
आगे से बातचीत करनी चादहए क्यरोंदक हर सकता है स्त्ी-स्वभाव के कारर् वह सोंकट की स्थस्थदत बताने
की पहल न करे । आज सम्पूर्म दवश्व र्ें सुरक्षा की दृदष्ट से र्दहलाओों की स्थस्थदत सम्यक् नहीों है और इसी
कारर् इस सोंिभम र्ें व्यापक स्तर पर प्रयत्न भी हर रहे हैं । प्राचीन काल र्ें बनाया गया यह कत्तमव्य आज
भी व्यावहाररक है । टीकाकार ने भी स्पष्टीकरर् करते हुए कहा है -

सम्भाषणं च र्ार्ृवद्भधगनीवाच्च – ‘भधगधन धकों र्े किवाधण न भेर्व्यर््’ इधर् । 26

प्रकृदत के प्रदत कत्तमव्य के दवषय र्ें धर्मसूत्रकार सजग र्े । वृक्षरों, पवमतरों, नदियरों आदि कर चेतन
र्ानते हुए राज्य का नागररक र्ाना हैं । इनके प्रदत र्नुष्य के कत्तमव्य इनका अदधकार हरता है । अतः
धर्मसूत्ररों र्ें कड़े शब्रों र्ें इनके प्रदत अकरर्ीय कायों कर दनदषद्ध घरदषत दकया है । प्रकृदत तर सनातन
काल से ही दनरन्तन अपने कतमव्य करती आ रही है । कत्तमव्यरों र्ें दशदर्लता तर र्नुष्य ही करता है , इसीदलए
प्रकृदत के प्रदत कत्तमव्यरों का दवधान र्नुष्य के दलए ही है ।

गौतर् ने वायु और जल जैसे प्राकृदतक तत्त्वरों कर शुद्ध रखने कर अदनवायम कत्तमव्य बताते हुए कहा
है दक वायु, अदग्न, ब्राह्मर्, सूयम, जल, िे वता, गौ की ओर र्ुख करके र्ल, र्ूत्र का त्याग न करें और न ही

22
र्ज्जेत्रयी िों डनीतौ हतायाों सवे धर्ाम ः प्रक्षयेयुदवमवृद्धाः ।
सवे धर्ाम िाश्रर्ार्ाों हताः स्युः क्षात्रे त्यिे राजधर्े पुरार्े ।। र्हाभारत, शास्थन्त पवम, ६३.२८
23
दनयर्ादतक्रर्र्र्न्यों वा रहदस बन्धयेत् । आ सर्ापत्तेः । असर्ापतौ नाश्यः । आप. धर्म. २.१०.२७.१८-२०
24
पञ्चैव र्हायज्ञाः । तान्येव र्हासत्रादर् भूतयज्ञर र्नुष्ययज्ञः दपतृयज्ञर ब्रह्मयज्ञ इदत । शतपर् ब्राह्मर्, ११.५.६.७
25
अरण्ये च स्थस्त्यर्् । आप. धर्म. १.४.१४.२८
26
आप. धर्म. १.४.१४.२८ पर टीका ।

51
र्ूकें और उस्थच्छष्ट फेकें ।27 आपस्तम्ब का भी यही दवचार है ।28 इनकी शुद्धता के दवचार का र्हत्त्व इतना
र्ा दक इन तत्त्वरों की ओर पैर भी न फैलाए ।29 इस दनयर् से व्यस्थि के दलए न केवल शारीररक कत्तमव्य
अदपतु र्ानदसक कत्तमव्य भी दनदिम ष्ट र्ा । र्न र्ें भी वह इनकर िू दषत करने का दवचार न लाए । आपस्तम्ब
के अनुसार आचर्न के दलए भी जल कर प्रिू दषत नहीों करना चादहए । दकसी निी या जलाशय के जल र्ें
स्थस्थत हर तर उसर्ें स्थस्थत हरते हुए आचर्न न करे ।30 जलाशय से पानी लेकर अलग जगह आचर्न करना
चादहए। बौधायन ने भी उि् धृत दकया है दक कुछ लरग कहते है दक श्मशान, जल, र्स्थन्दर, गायरों के गरि
आदि र्ें दबना पैर धरये प्रवेश नहीों करना चादहए ।31 जल र्ें रहते हुए शरीर की सफाई, वस्त्रों कर हार् से
रगड़ कर धरना और आचर्न करना वदजमत है ।32 यह सभी नागररकरों के दलए दनयर् र्ा परन्तु दवद्यार्ी के
दलए दवशेष र्ा । जल र्ें र्ूकना और र्ल-र्ूत्र त्यागना वदजमत र्ा ।33वदसि ने भी कहा है दक र्नुष्य कर
निी, सावमजदनक र्ागम, बीज बरया खेत, चरागाह आदि कर िू दषत नहीों करना चादहए ।34

iii. आधथमक कर्त्मव्य

धर्मसूत्ररों र्ें सभी वर्ों के आदर्मक कत्तमव्य और अदधकार दनित कर दिये गये र्े । इन्ीों आदर्मक
कत्तमव्यरों से सर्ाज का सोंचालन हरता र्ा । प्रत्येक का अर्मव्यवस्था र्ें यरगिान हरता र्ा । इस युग तक
आदर्मक गदतदवदधयाँ पूर्म दवकदसत हर चुकी र्ी जैसे- ऋर् का आिान-प्रिान, क्रय-दवक्रय सम्बन्धी दनयर्
और इन पर राज्य का दनयोंत्रर्, खेती के दवदभन्न प्रकार, दवदभन्न दशल्पी-दशल्प, आयात-दनयामत, दवदनर्य
प्रर्ाली आदि ।

अर्मव्यवस्था र्ें सवामदधक हादनकारक तत्त्व काला धन हरता है । यह अवधारर्ा भी तब दवकदसत

हर चुकी र्ी । दवष्णु धर्मसूत्र र्ें धन का दत्रदवध दवभाजन दकया गया है –“शुक्ल, शबल और अदसत (काला)
। प्रत्येक नागररक दनयर्ाधाररत वृदत्त का पालन करते हुए जर धन कर्ाता है वह शुक्ल धन है । अनुलरर्
क्रर् से अपने वर्म से बाि वाले वर्म की वृदत्त अपना कर जर धन अदजमत करता है , वह धन शबल कहलाता
है । और उससे भी एक और बाि वाले वर्म की वृदत्त अपनाता है ; उससे प्राप्त धन अदसत या काला कहलाता
है ।”35 वस्तुतः कर्ामधाररत वर्म-व्यवस्था से प्रत्येक क्षेत्र र्ें कायमकुशलता बनी रहती र्ी और एक-िू सरे के
क्षेत्र र्ें अदतक्रर्र् नहीों हरता र्ा । जर व्यस्थि दनयर्रों का अदतक्रर्र् करके धन अदजमत करता र्ा; वह धन
काला धन हरता र्ा ।

अर्मव्यवस्था र्ें दशल्पी वगम का यरगिान सवामदधक हरता र्ा, जर र्ुख्यतः शूद्र वगम के हरते र्े ।36
सर्ाज र्ें दवदनर्य व्यवस्था प्रचदलत र्ी, परन्तु यह वस्तु से वस्तु का दवदनर्य ही र्ा । र्ुद्रा प्रर्ाली सुदृढ़

27
न वाय्वदग्नदवप्रादित्यापर िे वता गाि प्रदत पश्यन्वा र्ूत्रपुरीषार्ेध्यान्स्व्युिस्येत् । गौ. धर्म. १.९.१३
28
अदग्नर्ादित्यर्पर ब्राह्मर्ों गाों िे वतािाऽदभर्ुखर र्ूत्रपुरीषरः कर्म वजमयेत् । आप. धर्म. १.११.३०.२३
29
अदग्नर्ादित्यर्पर ब्राह्मर्ों गाों िे वताद्वारों प्रदत पािों च शस्थिदवषये नाऽदभप्रसारयीत । आप. धर्म. १.११.३०.२५
30
नाप्सु सतः प्रयर्र्ों दवद्यते । आप. धर्म. १.५.१५.१०
31
अर् है के ब्रुवते- श्मशानर्ापर िे वगृहों गरिों यत्र च ब्राह्मर्ा अप्रक्षाल्य पािौ तन्न प्रवेष्टव्यदर्दत । बौ. धर्म. २.५.८.२
32
नाप्सु सतः प्रयर्र्ों दवद्यते न वासः पल्पूलनों नरपस्पशम नर्् । बौ. धर्म. २.५.८.८
33
अप्सु च । तर्ािे वनर्ैर्ुनयरः कर्ाम ऽप्सु वजमयेत् । आप. धर्म. १.११.३०.२१-२२
34
न नद्याों र्ेहनों कुयाम न् न पदर् न च भिदन ।
न गरर्ये न वा कृष्टे नरप्ते क्षेत्रे न शाद्वले ॥ वदस. धर्म. ६.१२
35
अर् गृहाश्रदर्र्स्थस्त्दवधरऽर्ो भवदत । शुक्लः शबलरऽदसति ।...स्ववृत्त्युपादजमतों सवेषाों शुक्लर्् । अनन्तरवृत्त्युपात्तों शबलर्् ।
एकान्तरवृत्त्युपात्तों च कृष्णर्् । दव. धर्म. ५८.१-२, ६-८
36
दशल्पवृदत्ति । गौ. धर्म. २.१.६२

52
नहीों र्ी । धर्मसूत्ररों र्ें दवक्रेताओों के दलए कत्तमव्य र्े दक वे वस्तु-दवदनर्य र्ें सर्ान र्ूल्य वाली और यर्ा
सम्भव सर्ान वस्तु का ही आिान-प्रिान करें तादक दकसी की हादन न हर और जनसाधारर् के अदधकाररों
का शरषर् न हर । गौतर् के अनुसार रसरों का रसरों के सार्, पशुओों का पशुओों के सार् तर्ा आर्, दतल-
तण्डु ल का उतनी ही र्ात्रा र्ें पके भरजन के सार् दवदनर्य का दनयर् है ।37 आपस्तम्ब ने दवदनर्य शब्
का प्रयरग दकया है ।38 तर्ा दनयर् दिया है दक अन्न का अन्न के सार्, िास का िास के सार्, रसरों का रसरों
के सार्, गोंधरों का गोंधरों के सार् एवों दवद्या का दवद्या के सार् दवदनर्य हर सकता है।39

राजा का भी िे श की अर्मव्यवस्था के प्रदत कत्तमव्य र्ा दक वह अनावश्यक दवलादसता का आचरर्

न करे । ऎसा करने से अनुपयरगी आदर्मक भार हरगा। सार् ही दवष्णु धर्मसूत्र राजा कर सचेत करते हुए
40

कहता है दक िे श के आदर्मक कल्यार् के दलए उसे राजकरश र्ें से अपात्ररों पर धन की वषाम नहीों करनी
चादहए ।41 राज्य ही आदर्मक व्यवस्था का सोंचालन करता र्ा। राजा के दबना अव्यवस्था फैल सकती र्ी,
इसदलए वदसि ने कहा है दक प्राचीन राजा की र्ृत्यु और नवीन राजा का राज्यादभषेक हरने तक के र्ध्य
के सर्य धन पर सूि या ब्याज नहीों जरड़ना चादहए।42 दबना राजा के िे श र्ें र्हाजन या आदर्मक अदधकारी
र्नर्ाना सूि वसूल सकते र्े। यह अराजकता की स्थस्थदत हर सकती र्ी।

2. नागरिक अधधकाि

अदधकार र्नुष्य के सार्ादजक जीवन की अदनवायम आवश्यकताएँ हैं दजनके दबना वह न तर अपना
दवकास कर सकता है और न ही सर्ाज के दलये उपयरगी कायम कर सकता है । अदधकाररों के दबना र्ानव
जीवन के अस्थस्तत्व की कल्पना ही नहीों की जा सकती है । राष्टर का सवोच्च लक्ष्य व्यस्थि के व्यस्थित्व का
पूर्म दवकास करना है, दजसके दलये राष्टर के द्वारा व्यस्थि कर कदतपय सुदवधाएँ प्रिान की जाती हैं और इन्ीों
सुदवधाओों तर्ा जीवन कर अनुकूल बनाने के दनयर्रों कर ही अदधकार कहते हैं ।

अदधकाररों से तात्पयम एक िू सरे के जीवन का सम्मान करना है। इसके दलए स्वयों के दलए कत्तमव्यरों
की अवधारर्ा दनधामररत है। अदधकार शब् अदध उपसगम पूवमक कृ धातु से घञ् प्रत्यय करके दनष्पन्न हुआ
है दजसका अर्म िे खभाल करना, कत्तमव्य, कायमभार, सत्ता का अदधकार, प्रभुत्व तर्ा पिादि अनेक अर्ो र्ें
है।43

अदधकार और कत्तमव्य एक-िू सरे के पूरक हैं । अदधकाररों का क्षेत्र सर्ाज है और धर्मसूत्र इसी
सार्ादजक व्यवस्था का प्रदतदनदधत्व करते हैं । यद्यदप इनर्ें कत्तमव्यरों पर दवशेष बल है , परन्तु ये कत्तमव्य
दनरों कुशता से आररदपत नहीों र्े; दकसी के अदधकाररों की कीर्त पर प्रवदतमत नहीों र्े । धर्मसूत्ररों र्ें अदधकाररों
के सोंरक्षर् की स्पष्ट भावना दर्लती है । अदधकाररों के हनन हरने पर िण्ड की अवधारर्ा का पूर्म दवकास
हर चुका र्ा । ये अदधकार नागररकरों और राज्य से सोंयरदजत र्े ।

37
दनयर्स्तु । रसानाों रसैः । पशुनाों च । लवर्कृतान्नयरः । दतलानाों च । सर्ेनाऽऽर्ेन तु पक्वस्य सोंप्रत्यर्े । गौ. धर्म. १.७.१६-२१
38
अदवदहतिैतेषाों दर्र्र दवदनर्यः । आप. धर्म. १.७.२०.१४
39
अन्नेन चाऽन्नस्य र्नुष्यार्ाों च र्नु ष्यै रसानाों च रसैगमन्धानाों च गन्धैदवमद्यया च दवद्यानार्् । आप. धर्म. १.७.२०.१५
40
गुरूनर्ात्याँ ि नादतजीवेत् । आप. धर्म. २.१०.२५.१०
41
नापात्रवषी स्यात् । दव. धर्म. ३.५४
42
राजा तु र्ृतभावेन द्रव्यवृस्थद्धों दवनाशयेत् ।
पुना राजादभषेकेर् द्रव्यर्ूलों च वधमते ॥ वदस. धर्म. २.४९
43
वार्न दशवरार् आप्टे, सोंस्कृत-दहन्दी शब्करश, पृि-३०

53
 i. िाजनैधर्क अधधकाि

राजा के अदधकार - शासक हरने के कारर् तर्ा शासन-सोंचालन करने के कारर् उसे कुछ
अदधकाररों की आवश्यकता हरती है । शासन सोंचालन र्ें अर्म की आवश्यकता के कारर् एवों नागररकरों की
रक्षा रूपी सेवा के बिले राजा नागररकरों से कर लेने का अदधकारी है । वस्तुतः रक्षा और कर कत्तमव्य और
अदधकार के सर्ान परस्पर जुड़े हुए हैं । राजा की दृदष्ट र्ें नागररकरों की रक्षा करना उसका कत्तमव्य है तर
कराधान अदधकार र्ा । नागररकरों की दृदष्ट र्ें भी रक्षा और न्याय प्राप्त करना अदधकार तर्ा कर िे ना सभी
का र्ौदलक कत्तमव्य र्ा । बौधायन के अनुसार राजा चाररों वर्ों की रक्षा करता है , अतः उसे प्रजा से उनकी
आय का छठा भाग प्राप्त हरता है ।44 धर्मसूत्रकार गौतर् के अनुसार भी प्रजा की रक्षा के बिले राजा कृदष,
पण्य आदि र्ें से भाग ग्रहर् करने का अदधकारी है । इससे राजा कर जर भी प्राप्त हरता है वह उसकी वृदत्त
है ।45 बौधायन ने राजा कर कर के नये दनयर् बनाने का अदधकार तर दिया है , परन्तु उसे उतना ही कर
लगाने का अदधकार र्ा, दजससे करिाता और उसका व्यवसाय पीदड़त न हर ( ‘अनुपहत्य’ शब् ) ।46

इस अदधकार के सार् एक कत्तमव्य भी अनुस्यूत र्ा । कर से प्राप्त सम्पदत्त राजा की व्यस्थिगत

सम्पदत्त नहीों र्ी । वदसि धर्मसूत्र के अनुसार दजस प्रकार बच्चे र्ाता कर धन लाकर िे ते हैं और वह उसका
उपयरग उन्ीों के दहत के दलए करती है, उसी प्रकार राजा प्रजा से जर धन प्राप्त करता है उसे उनके
कल्यार् के दलए दनयरदजत करना आवश्यक र्ा ।47

राज्य की लावाररस या अस्वादर्क सम्पदत्त और गुप्तदनदध पर भी राजा का अदधकार हरता र्ा ।

राजा इसका अदधग्रहर् कर इसका उपयरग राज्य की कल्यार्कारी यरजनाओों के दलए ही करता र्ा । यदि
राज्य के द्वारा अस्वादर्क सम्पदत्त पर अदधकार न दकया जाय तर प्रजाजनरों र्ें परस्पर कलह एवों लूटर्ार
हरने की सोंभावना अदधक हरती है । धर्मसूत्ररों र्ें वदर्मत है दक दजसके स्वार्ी का पता न हर ऐसी खरई वस्तु
पाकर उसके दवषय र्ें राजा कर बताना चादहए । राजा के द्वारा भी वस्तु की एक वषम तक रक्षा करनी
चादहए, उसके बाि वस्तु का चतुर्ाांश उसके पाने वाले कर िे कर शेष स्वयों ग्रहर् करना चादहए ।48 गौतर्
ने गुप्तदनदध ( गडा हुआ धन, दजसका स्वार्ी अज्ञात है ) पर राजा का अदधकार घरदषत दकया है ।49 दवष्णु
ने भी कहा है दक यदि राजा कर गुप्त धन प्राप्त हर तर वह उसका आधा भाग ब्राह्मर्रों र्ें दवतररत कर िे
और शेष भाग अपने करश र्ें जर्ा कर िे ।50 राज्य के अदधकार क्षेत्र र्ें आने वाले सभी खानरों (आकर)
पर भी राज्य का नैसदगमक अदधकार स्वीकार दकया जाता है ।51

सार्ादजक व्यवस्था की रक्षा के दलए, नागररकरों कर अपने-अपने कत्तमव्यरों र्ें प्रवृत्त कराने के दलए
तर्ा सार्ादजक न्याय के दलए िण्ड िे ने का अदधकार राजा के सार् अदभन्न रूप से जुडा र्ा । इसी कारर्

44
षड् भागभृतर राजा रक्षेत्प्रजार््॥ बौधायन धर्मसूत्र, १.१०.१८.१
45
तद्रक्षर्धदर्मत्वात् । अदधकेन वृदत्तः । गौ. धर्म. २.१.२८, ३०
46
अन्येषार्दप सारानुरूप्येर्ाऽनु पहत्य धर्ां प्रकल्पयेत् । बौ. धर्म. १.१०.१८.१५
47
एतेन र्ातृवृदत्तव्याम ख्याता । वदस. धर्म. १९.१९, दहतर्ासाों कुवीत । गौ. धर्म. २.२.६
प्रजानार्ेव भूत्यर्ां स ताभ्यर बदलर्ग्रहीत् ।
सहस्त्गुर्र्ुत्स्त्रष्टु र्ाित्ते दह रसों रदवः ॥ रघुवोंश, १.१८
48
प्रनष्टर्स्वादर्कर्दधगम्य राज्ञे प्रब्रूयुः । दवख्याप्य सोंवत्सरों राज्ञा रक्ष्यर्् । ऊर्ध्मर्दधगन्तुितुर्ां राज्ञः शेषः । वही, २.१.३६-३८
49
दनध्यदधगर्र राजधनर्् । वही, २.१.४३
50
दनदधों लब्ध्वा तिधां ब्राह्मर्ेभ्यर िध्यात् । दद्वतीयर्धां करशे प्रवेशयेत् । दव. धर्म. ३.५६-५७
51
आकरे भ्यः सवमर्ािद्यात् । दव. धर्म. ३.५५

54
उसकी उपादध ‘िण्डधर’ र्ी । गौतर् के अनुसार अपरादधयरों कर िण्ड िे ने का अदधकार राजा कर ही र्ा
।52 दवष्णु के अनुसार स्वकत्तमव्य र्ें अप्रवृत्त करई भी ऐसा व्यस्थि नहीों हैं जर राजा द्वारा अिण्ड्य हर अर्ामत्
यह अदधकार राजा का स्वभादवक र्ा ।53 परन्तु इस अदधकार का प्रयरग वह व्यस्थिगत राग-द्वे ष से प्रेररत
हुए दबना एवों अपराध के अनुसार शास्त्ानुसार िण्ड िे गा ।54 अतः उसे अदधकाररों का िु रुपयरग करने का
अदधकार नहीों र्ा ।

शासन-सोंचालन के दलए राजा कर व्यापक अदधकार दिये गये र्े । वह इन अदधकाररों का िु रुपयरग
न करे , इसके दलए धर्मसूत्ररों र्ें व्यवस्था की है ।प्रर्र्तः तर राजा कर धर्म की सीर्ा र्ें बाँध दिया गया ।
इसके उल्लोंघन पर पाप या नरक का भय घरदषत कर दिया गया र्ा । राजा के आचरर् का अनुकरर्
सार्ान्य नागररक करते र्े ।55 धर्म का दनधामरर् राज्य-द्वारा न हरकर वेिादि शास्त्रों से हरता र्ा । इस प्रकार
‘धर्म की शस्थि’ एक जीवन्त शस्थि र्ी जर राजशस्थि पर प्रभावी दनयोंत्रर् स्थादपत करती र्ी । वह वेि,
धर्मशास्त्, वेिाोंग, पुरार्, रीदत, परम्परा, िे श, कुल, जादत के आचार और र्यामिा, कृषक, वदर्क, व्यापारी
आदि के सोंघरों के दनयर्रों के अनुसार ही अपना दवचार दनदित कर सकता र्ा ।56 इन सार्ादजक प्रदतदनदधयरों
के अलावा धर्मशास्त्र्र्मज्ञ वृद्धरों से दनर्मय र्ें ज्ञान प्राप्त करना आवश्यक र्ा ।57

ii. सार्ाधजक अधधकाि

पधर् – पत्नी के अधधकाि - पदत – पत्नी पररवार नार्क सोंस्था की इकाई हरते हैं । पत्नी का यज्ञादि
कायों र्ें अदधकार र्ा । पत्नी शब् की व्युत्पदत्त के अनुसार जर यज्ञ कायों र्ें पदत के सार् भाग ले सके ।58
पत्नी के दबना करई धादर्मक कायम सम्पन्न नहीों हरते र्े । पदत-पत्नी सभी कायों र्ें सर्ान भागीिारी करते र्े
। आपस्तम्ब के अनुसार दववाहरपरान्त पदत एवों पत्नी धादर्मक कृत्य सार् करते हैं , पुण्यफल र्ें, धन-सम्पदत्त
र्ें सर्ान भागीिारी रखते हैं ।59 पत्नी पदत की अनुपस्थस्थदत र्ें अवसर पड़ने पर भेंट आदि िे ने का अदधकार
रखती र्ी ।आपस्तम्ब के अनुसार इसे चररी नहीों कह सकते है क्यरोंदक यह पत्नी का अदधकार है ।60

पशुओ ों के अधधकाि- धर्मसूत्र र्ें पशुओों कर नागररक र्ानने के कारर् तर्ा र्ानव द्वारा र्ानवत्व
के कारर् पशु-अदधकार दिये गये र्े । र्नुष्यरों कर पशुओों के अदधकाररों का हनन करने का अदधकार नहीों
र्ा । उनके अदधकाररों की रक्षा करना नागररकरों का िादयत्व र्ा । सभी धर्मसूत्रकाररों ने यह दनिे श दकया है
दक बछड़े कर िू ध दपलाती हुई गाय की चचाम उसके स्वार्ी से न करें और न ही स्वयों गाय कर बछड़े से
अलग करें ।61 आपस्तम्ब और बौधायन ने भी यही कहा है ।62 क्यरोंदक स्वार्ी कर कहने पर वह िरनरों कर

52
राज्ञरऽदधकों रक्षर्ों सवमभूतानार्् । न्याय्यिण्डत्वर्् । गौ. धर्म. २.१.७-८
53
स्वधर्मर्पालयन्नािण्ड्यर नार्ास्थस्त राज्ञः । दव. धर्म. ३.९४
54
अपराधानुरूपों च िण्डों िण्डे षु िापयेत् । सम्यग्दण्डप्रर्यनों कुयाम त् । दव. धर्म. ३.९१-९२
55
यर्ा दह कुरुते राजा प्रजाों तर्नुवतमते । वाल्मीदक रार्ायर्, ७.४२,१९
56
तस्य च व्यवहारर वेिर धर्मशास्त्ाण्यङ्ान्युपवेिाः पुरार्र्् । िे शजादतकुलधर्ाम िाऽऽम्नायैरदवरुद्धाः प्रर्ार्र्् ।
कषमकवदर्क्पशुपालकुसीदिकारवः स्वे स्वे वगे । गौ. धर्म. २.२.१९-२१
57
दवप्रदतपत्तौ त्रैदवद्यवृद्धेभ्यः प्रत्यवहृत्य दनिाों गर्येत् ।गौ. धर्म. २.२.२५
58
पत्युनो यज्ञसोंयरगे । अष्टाध्यायी, ४.१.३३
59
जायापत्यरनम दवभागर दवद्यते । पादर्ग्रहर्ास्थद्ध सहत्वों कर्मसु । तर्ा पुण्यफलेषु । द्रव्यपररग्रहे षु च । आपस्तम्ब धर्म.
२.६.१४.१६-१८
60
न दह भतुमदवप्रवासे नैदर्दत्तके िाने स्तेयर्ुपदिशस्थन्त । आप. धर्म. २.६.१४.२०
61
गाों धयन्तीों परिै नाऽऽचक्षीत । न चैनाों वारयेत् । गौ. धर्म. १.९.२४-२५
62
सोंसृष्टाों च वत्सेनाऽदनदर्त्ते । आप. धर्म. १.११.३१.१० । गाों धयन्तीों न परिै प्रब्रूयात् । बौ. धर्म. २.३.६.१७

55
अलग कर िे गा, दजससे गाय और बछड़े कर कष्ट हरगा । गाय का अपने बच्चे कर िू ध दपलाना अदधकार र्ा
। इसका र्हत्त्व अर्मव्यवस्था र्ें भी र्ा, क्यरोंदक इसे पूरा करने पर ही पशुधन की वृस्थद्ध सोंभव र्ी और
पशुपालन के व्यवसाय का अर्मव्यवस्था र्ें यरगिान आज भी प्रासोंदगक है ।

धवद्याथी के अधधकाि – दवद्यार्ी सर्ाज की नीोंव र्ा । दवद्यार्ी कर दशक्षा प्रास्थप्त का अदधकार
(Right to Education) र्ा । तत्कालीन व्यवस्था र्ें गुरुकुल पद्धदत प्रचदलत र्ी, दजसर्ें गुरु के सादनध्य र्ें
दशक्षा प्राप्त की जाती र्ी । इसर्ें भी दवकल्प के रूप र्ें दवद्यार्ी दजस गुरू से दवद्या प्राप्त करना चाहे उससे
अध्ययन कराने के दलए आग्रह कर सकता र्ा और दशक्षक उसे अस्वीकार नहीों कर सकता र्ा ।63 उसे
र्नरवास्थित दशक्षा पाने का अदधकार र्ा । आपस्तम्ब के अनुसार दवद्यार्ी एक गुरु से र्नरवास्थित दशक्षा
पाने र्ें अपयाम प्तता अनुभव करता र्ा तर वह अन्य गुरु के पास जा सकता र्ा ।64 दशक्षा के क्षेत्र र्ें वह
दनयर्रों र्ें बँधा नहीों र्ा । उसे रुदचकर और पयामप्त काल तक दशक्षा पाने का अदधकार र्ा । गुरु भी सभी
दवद्यादर्मयरों कर सर्ान रूप से अपने पुत्र के सर्ान दशक्षा िे ते र्े, उनर्ें ऊँच-नीच और अर्ीर-गरीब का
भेिभाव नहीों दकया जाता र्ा ।65

आपस्तम्ब ने स्थस्त्यरों एवों शूद्ररों कर भी दवद्या का अदधकार दिया है। उनके अनुसार जर दवद्या स्थस्त्यरों
एवों शूद्ररों र्ें हरती है वही दवद्या की अस्थन्तर् सीर्ा हरती है। उसका ज्ञान प्राप्त करने पर ही सभी दवद्याओों का
ज्ञान पूरा हरता है।66

स्नातक का राजा से यरगक्षेर् (ररजगार का अदधकार ) करने का उल्लेख है। स्नातक कर दशक्षा पूर्म
कर लेने के बाि ररजगार र्ाँ गने राजा के पास जाना चादहए । दवद्या प्रास्थप्त के बाि स्नातक कर ररजगार का
अदधकार प्रिान करना राजा का कत्तमव्य है।67

आत्मिक्षा का अधधकाि - सर्ाज र्ें रहते हुए व्यस्थि कर अपनी रक्षा करने का पूर्ामदधकार र्ा ।
इसके दलए सम्भव उपाय करने चादहए । गौतर् ने कहा है दक प्रार्सोंशय हरने पर ब्राह्मर् भी शस्त् धारर्
कर सकता है ।68 आपस्तम्ब ने पुरार् का र्त उि् धृत करते हुए कहा है दक दहोंसा करने के दनदर्त्त से
आक्रर्र् करने वाले कर जर र्ारता है तर उसका क्ररध िू सरे व्यस्थि के क्ररध कर छूता है । इससे आत्मरक्षा
करने वाले कर िरष नहीों लगता ।69 यही दवचार बौधायन ने व्यि दकये हैं । इन्रोंने आत्मरक्षा के दनदर्त्त
अध्यापक और उच्चकुलरत्पन्न व्यस्थि कर भी र्ारने का दनिे श दिया है ।70 वदसि के अनुसार भी आततायी
कर र्ार डालने पर करई पाप नहीों लगता है ।71 गौतर् और दवष्णु व्यस्थि का यह कत्तमव्य भी र्ानते है दक

63
अध्ययनार्े न यों चरियेन्न चैनों प्रत्याचक्षीत । आप. धर्म. १.४.१४.२
64
अन्तेवास्यनन्तेवासी भवदत दवदनदहतात्मा गुरावनैपुर्र्ापद्यर्ानः । आप. धर्म. १.२.८.२७
65
पुत्रदर्वैनर्नुकाङ्क्षन् सवमधर्ेष्वनपच्छाियर्ानः सुयुिर दवद्याों ग्राहयेत् । आप. धर्म. १.२.८.२५
66
सा दनिा या दवद्या स्त्ीषु शूद्रेषु च॥ आपस्तम्ब धर्मसूत्र, २.११.२९.११
67
यरगक्षेर्ार्मर्ीश्वरर्दधगच्छे त्॥ गौत्तर् धर्मसूत्र, १.९.६३
68
प्रार्सोंशये ब्राह्मर्रऽदप शस्त्र्ाििीत । गौ. धर्म. १.७.२५
69
यर दहों सार्मर्दभक्रान्तों हस्थन्त र्न्युरेव र्न्युों स्पृशदत न तस्थिन् िरष इदत पुरार्े । आप. धर्म. १.१०.२९.७
70
अध्यापकों कुले जातों यर हन्यािाततादयनर्् ।
न तेन भ्रूर्हा भवदत र्न्युस्तों र्न्युर्ृच्छतीदत ॥ बौ. धर्म. १.१०.१८.१२
71
आततादयनों हत्वा नात्र प्रार्च्छे त्तुः दकोंदचस्थत्कस्थिषर्ाहुः । वदस. धर्म. ३.१६

56
बलवान् के द्वारा िु बमल की दहोंसा के अवसर पर, यदि बलवान् उपस्थस्थत हर तर िु बमल की रक्षा करे , अन्यर्ा
वह भी उतना ही िरषी हरता है दजतना दहोंसा करने वाला ।72

दण्ड से र्ुक्ति का अधधकाि - िण्ड से र्ुस्थि का अदधकार भी र्ा । धर्मसूत्ररों र्ें भी यह

सुधारात्मक प्रवृदत्त प्रायदित्त के रूप र्ें लदक्षत हरती है । इसर्ें व्यस्थि िण्ड से र्ुि हरने का प्रयत्न करता
र्ा और स्वतः आस्थत्मक रूप से स्थायी सुधार लाता र्ा । प्रायदित्त कर लेने पर व्यस्थि कर उससे छीने
अदधकार पुनः दर्ल जाते र्े ।73 प्रायदित्त के र्ाध्यर् से सर्ाज द्वारा प्रर्र्तः व्यस्थि कर स्वयों सुधार का
अवसर दिया जाता र्ा । प्रायदित्त के द्वारा वह िण्ड से र्ुस्थि पाता र्ा ।74 यह एक वैयस्थिक कर्म र्ा,
दजसर्ें व्यस्थि स्वयों अपने िरष कर नैदतक चेतना द्वारा अपने अनाचरर् कर अनुभव करता र्ा ।75 और
जप-तप के र्ाध्यर् से िू र करता र्ा । परन्तु धीरे -धीरे प्रायदित्त की अवधारर्ा का दवकास राजिण्ड ने
ग्रहर् कर दलया, क्यरोंदक सार्ादजक और न्यादयक व्यवस्था केवल व्यस्थि की सद्भावना के आदश्रत नहीों रह
सकती ।

iii. स्त्री - अधधकाि

स्त्ी का स्थान दवदभन्न कालरों र्ें पररवदतमत हरता रहा है । धर्मसूत्ररों र्ें स्त्ी के व्यापक अदधकाररों की
चचाम तर नहीों है , परन्तु पिे -पिे उसकी र्हत्ता प्रदतपादित की गयी है। उसके कुछ कत्तमव्य दनधामररत दकये
गये हैंएवोंकुछ अदधकार प्रिान दकये गये हैं । स्त्यदधकाररों के सोंिभम र्ें धर्मसूत्रकाररों र्ें र्तान्तर हैं । कुछ
आचायों ने स्त्ी तर्ा उसके कायों कर पदवत्र र्ाना हैं । वदसि के अनुसार स्त्ी और बालक के कायम सवमिा
पदवत्र रहते हैं ।76 आगे भी कहा है दक बकरी और घरडे के र्ुख, गाय की पीठ और ब्राह्मर् की पीठ पदवत्र
रहती है, परन्तु स्त्ी तर सम्पूर्म ही पदवत्र हरती है ।77

िक्षा का अधधकाि- धर्मसूत्ररों र्ें कहा गयाहै दक स्त्ी कर रक्षा प्राप्त करने का अदधकार है । प्रत्येक
पररस्थस्थदत र्ें सर्ाज द्वारा उसकी रक्षा करने का दवधान है । बौधायन के अनुसार सभी वर्ों के पुरुषरों के
दलए पदत्नयाँ धन की अपेक्षा भी अदधक सावधानी से रक्षर्ीय हरती हैं ।78 र्नु ने भी स्त्ीरक्षा कर पदत का
कत्तमव्य बताते हुए कहा है दक अपनी पत्नी की रक्षा करने से र्नुष्य चररत्र, कुल, आत्मा और धर्म की रक्षा
करता है ।79 स्त्ी सोंरदक्षत रहने पर ही िे श की प्रगदत र्ें यरगिान कर सकती है । इसके अदतररि भी कहा
है दक स्त्ी कर रक्षा प्राप्त करने का अदधकार तर है ही, सार् ही उसका कत्तमव्य भी है दक वह स्वयों की रक्षा
करे , तभी वह िे श की दजम्मेिार नागररक बन पायेगी । र्नु ने दलखा है दक आप्त और आज्ञाकारी पुरुषरों

72
िु बमलदहों सायाों च दवर्रचने शििेत् । गौ. धर्म. ३.३.१९, उत्क्ररशन्तर्नदभधावताों तत्सर्ीपवदतमनाों सोंसरताों च । दव. धर्म. ५.७४
73
चररतदनवेशों सवनीयों कुयुमः । बौ. धर्म. २.१.१.३७
74
द्वािशवषाम दर् चररत्वा दसद्धः सस्थद्भस्सम्प्रयरगः । आप. धर्म. १.९.२४.२०
75
अर् कर्मदभरात्मकृतैगुमरुदर्वाऽऽत्मानों र्न्येताऽऽत्मार्े प्रसृतयावकों श्रपयेिुदितेषु नक्षत्रेषु । बौ. धर्म. ३.६.६.१
76
श्वहताि र्ृगा वन्याः पादततों च खगैः फलर्् ।
बालैरनुपररक्रान्तों स्त्ीदभराचररतों च यत् ॥ वदस. धर्म. ३.४५
77
अजाश्वा र्ुखतर र्ेध्याः गावर र्ेध्यास्तु पृष्टतः ।
ब्राह्मर्ाः पाितर र्ेध्याः स्थस्त्यर र्ेध्यास्तु सवमत्रः ॥ वही, २८.९
78
सवेषार्ेव वर्ाम नाों िारा रक्ष्यतर्ा धनात् । बौ. धर्म. २.२.४.२
79
िे वित्ताों पदतभाम याां दवन्दते नेच्छयात्मनः ।
ताों सार्ध्ीों दबभृयादन्नत्यों िे वानाों दप्रयर्ाचरन् ॥ र्नु. ९.९५

57
के घर र्ें भी वे स्थस्त्याँ अरदक्षत हैं जर सोंरदक्षत धर्मदवरुद्ध बुस्थद्ध हरने से अपनी रक्षा स्वयों नहीों करती हैं ।
इसके दवपरीत वे ही स्थस्त्याँ सुरदक्षत हैं जर धर्ामनुकूल बुस्थद्ध से अपनी रक्षा स्वयों करती हैं ।80

धशक्षा का अधधकाि- यद्यदप सूत्रकाल र्ें इसके उद्धरर् कर् दर्लते हैं परन्तु दफर भी ये दशक्षा
की स्थस्थदत स्पष्ट करने के दलए पयामप्त हैं । वैदिक काल र्ें स्थस्त्यरों कर दशक्षा प्राप्त करने के स्पष्ट उल्लेख
दर्लते हैं, परन्तु सूत्रकाल तक आते-आते स्थस्त्यरों कर सीदर्त अदधकार ही दिया गया । इसका कारर्
सम्भवतः असुरक्षा की भावना र्ी । वे घर पर ही पाररवाररक जनरों से दशक्षा पाने लगी । आपस्तम्ब ने पस्थण्डता
स्थस्त्यरों के पररपक्व ज्ञान और दवद्वत्ता की चचाम की है ।81 इन्रनें तर यहाँ तक कहा है दक सभी शेष दवद्याएँ
स्थस्त्यरों से ग्रहर् करनी चादहए क्यरोंदक वही ज्ञान की अस्थन्तर् सीर्ा है ।82 र्हदषम पतञ्जदल ने ‘उपाध्यायी या
उपाध्याया’ शब् से स्त्ी दशदक्षकाओों की ओर सोंकेत दकया है ।83 परन्तु र्नु ने उन्ें उपनयन का अदधकार
तर दिया लेदकन वैदिक र्न्त्रों के उच्चारर् का दनषेध करके इस अदधकार कर र्हत्त्वहीन बना दिया ।84

अतः स्पष्ट है इस सर्य तक उपनयन या दशक्षा के दवदधवत् अदधकार कर औपचाररक बना दिया
गया र्ा ।

धववाह का अधधकाि- यह अदधकार र्ाता-दपता के द्वारा दिया गया र्ा । र्ाता-दपता का अदनवायम
कत्तमव्य है दक यर्ासर्य कन्या का दववाह कर िें । अन्यर्ा कन्या कर यह अदधकार है दक वह स्वयों ही वर
ढू ँ ढ़कर दववाह कर सकती है । परन्तु इसर्ें उसे पररवार से प्राप्त वस्त्ाभूषर् लौटाने पड़ते र्े ।85 बौधायन
के अनुसार कन्या कर तीन वषम की प्रतीक्षा करनी चादहए । इसके पिात् स्वयों यरग्य वर का वरर् कर सकती
है ।86 अन्तजामतीय दववाह की अनुर्दत िे ते हुए आगे कहा है दक यदि जादत और गुर् र्ें सर्ान पुरुष न
दर्ले तर गुर्हीन पुरुष कर भी पदत के रूप र्ें वरर् कर सकती है ।87

स्त्ी कर पुनदवमवाह की अनुर्दत र्ी । गौतर् ने पौनभमव (पुनभूम (पुनः दववाह करने वाली) का पुत्र)
का नार्रल्लेख दकया है ।88 तात्पयम है दक स्त्ी कर स्वेच्छा से एक पदत कर छरड़कर अन्य से दववाह का
अदधकार र्ा । यह दवधवा के सोंिभम र्ें भी र्ा । कौदटल्य के अनुसार कुटु म्बक्षय या सर्ृद्ध बोंधु-बाोंधवरों के
छरडेे़ जाने के कारर् या दवपदत्त की र्ारी हुई करई भी प्ररदषतपदतका (दजसका पदत दविे श गया हर) जीवन-
दनवामह के दलए, अपनी इच्छानुसार िू सरा दववाह कर सकती है ।89

यज्ञाधधकाि – धादर्मक कायों र्ें स्त्ी पदत के सार् यज्ञ की अदधकाररर्ी र्ी । पादर्दन ने पत्नी की
व्युत्पदत्त करते हुए दलखा है दक जर यज्ञ की अदधकाररर्ी एवों यज्ञ के फल की भागी हरती है वह पत्नी हरती

80
अरदक्षता गृहे रुद्धाः पुरुषैराप्तकाररदभः ।
आत्मानर्ात्मना यास्तु रक्षेयुस्ताः सुरदक्षताः ॥ र्नु. ९.१२
81
आर्मवर्स्य वेिस्य शेष इत्युपदिशस्थन्त। स्त्ीभ्यस्सवमवर्ेभ्यिों धर्मशेषान्प्रतीयादित्येक इत्येके।आप. धर्म.२.११.२९.१२,१६
82
सा दनिा या दवद्या स्त्ीषु शूद्रेषु च॥ आपस्तम्ब धर्मसूत्र, २.११.२९.११
83
उपेत्याधीयते तस्या उपाध्यायी उपाध्याया। पतञ्जदलर्हाभाष्य, ३.३.२१
84
अर्स्थन्त्का तु कायेयों स्त्ीर्ार्ावृिशेषतः ।
सोंस्कारार्े शरीरस्य यर्ाकालों यर्ाक्रर्र््॥ र्नु. २.६६
85
त्रीन्कुर्ायृमतूनतीत्य स्वयों युज्येतादनस्थन्दतेनरत्सृज्य दपत्र्यानलोंकारान्।गौ. धर्म. २.९.२०
86
त्रीदर् वषाम ण्यृतुर्ती काों क्षेत दपतृशासनर््।
ततितुर्े वषे तु दवन्दे त सदृशों पदतर््।बौ. धर्म, ४.१.१०.१५
87
अदवद्यर्ाने सदृशे गुर्हीनर्दप श्रयेत्।बौ. धर्म.४.१.१०.१६
88
कानीनसहरढपौनभमवपुदत्रकापुत्रस्वयोंित्तक्रीता गरत्रभाजः । गौ. धर्म.३.१०.३१
89
कुटु म्बस्थद्धमलरपे वा सुखावस्थैदवमर्ुिा यर्ेष्टों दवन्दे त जीदवतार्मर्ापद्गता वा।अर्मशास्त्. ३.४

58
है ।90 पत्नी के दबना करई धादर्मक कायम सम्पन्न नहीों हरते र्े । पदत-पत्नी सभी कायों र्ें सर्ान भागीिारी
करते र्े । आपस्तम्ब के अनुसार दववाहरपरान्त पदत एवों पत्नी धादर्मक कृत्य सार् करते हैं , पुण्यफल र्ें, धन
सम्पदत्त र्ें सर्ान भागीिारी रखते हैं ।91

सर्ाज र्ें अनुलरर्ादि दववाह का प्रचलन र्ा । ऐसी स्थस्थदत र्ें पदत के सार् यज्ञ र्ें भाग लेने के दलए
सजातीय पत्नी कर ही अदधकार दिया गया क्यरोंदक पुरुष के अनेक पदत्नयाँ हरती र्ी । कहा गया है दक यदि
सजातीय न हर तर हीन वर्म की पत्नी कर भी यज्ञादधकार र्ा, परन्तु शूद्रा पत्नी कर इस अदधकार से वोंदचत
रखा गया ।92

साम्पधर्त्क अधधकाि – भारतीय सोंस्कृदत र्ें स्त्ी कर सम्पदत्त का अदधकार प्राप्त रहा है ।
सर्कालीन सभ्यताओों र्ें उसे क्रय-दवक्रय की वस्तु बना दिया गया है , परन्तु धर्मशास्त्ीय व्यवस्था र्ें दकसी
भी व्यस्थि पदत, दपता, पुत्र, राजा कर यह अदधकार नहीों दक वे उसे बेच सकते र्े । यद्यदप कुछ उद्धरर्
अपवाि स्वरूप प्राप्त हरते हैं, परन्तु इन कायों की भत्समना की गयी र्ी । आपस्तम्ब के अनुसार पदत-पत्नी
का पररवार की सम्पदत्त पर सर्ान अदधकार हरता है अतः उनकी आज्ञानुसार ही पाररवाररक सिस्यरों कर
उन्ीों के कर्ों र्ें सोंलग्न रहना चादहये । 93 स्त्ी पदत की अनुपस्थस्थदत र्ें सम्पदत्त र्ें से िान िे सकती र्ी ।
सार् ही यदि दवभाजन की बात उठती है तर पत्नी का भाग, उसके जेवरादि स्त्ीधन कर सस्थम्मदलत करने
पर बाकी बचा धन िे कर पूरा दकया जाता र्ा ।94

याज्ञवल्क्य के अनुसार स्त्ी कर धन के दवभाजन की र्ाँग का अदधकार नहीों है , लेदकन यदि दपता
अपने जीवनकाल र्ें पुत्ररों के बीच सम्पदत्त का बँटवारा करता है तर पत्नी कर भी पुत्ररों के बराबर भाग दर्लता
है । यह अदधकार स्त्ीधन नहीों दर्लने पर ही र्ा ।95

गौतर् ने दवधवा कर पदत की सम्पदत्त र्ें अदधकाररर्ी र्ाना है ।96 अन्यत्र आपस्तम्ब97 और वदसि
98
ने यह अदधकार स्वीकार नहीों दकया हैं । स्त्ी कर पुत्री के रूप र्ें पररवार की सम्पदत्त र्ें अदधकार
अदधकाोंश धर्मसूत्रकाररों द्वारा स्वीकार नहीों दकया गया । इनर्ें प्रर्ुख गौतर् और बौधायन99 हैं । परन्तु
आपस्तम्ब ने पुत्री कर यह अदधकार दिया है , यद्यदप उसका नार् अस्थन्तर् िायािरों र्ें दलया है ।100 कौदटल्य
ने स्पष्ट रूप से कन्या के साम्पदत्तक अदधकार का सर्र्मन दकया है । अपुत्र व्यस्थि की र्ृत्यु के बाि उसकी

90
पत्युनो यज्ञसोंयरगे। अष्टाध्यायी, ४.१.३३
91
जायापत्यरनम दवभागर दवद्यते । पादर्ग्रहर्ास्थद्ध सहत्वों कर्मसु । तर्ा पुण्यफलेषु । द्रव्यपररग्रहे षु च । आपस्तम्ब धर्म.
२.६.१४.१६-१८
92
नादग्नों दचत्वा रार्ार्ुपेयात्।वदस. धर्म. १८.१७
दर्श्रासु च कदनियादप सर्ानवर्मया। सर्ानवर्ाम या अभावे त्वनन्तरयैवापदि च। न त्वेव दद्वजः शूद्रया। दव. धर्म.
93
कुटु स्थम्बनौ धनस्येशाते । तयररनुर्तेऽन्येऽदपतस्थद्धतेषु वतेरन् । आप. धर्म. २.११.२९.३-४
94
अलोंकारर भायाम याः ज्ञादतधनों चेत्येके । आप. धर्म. २.६.१४.९
95
यदि कुयाम त्सर्ानोंशान् पत्न्यः कायाम ः सर्ाों दशकाः ।
न ित्तों स्त्ीधनों यासाों भत्राम वा श्वशुरेर् वा ॥ याज्ञ.२.१५
96
दपण्डगरत्रदषमसम्बन्धा ररक्थों भजेरन्स्स्त्ी वाऽनपत्यस्य । गौ. धर्म. ३.१०.१९
97
पुत्राभावे यः प्रत्यासन्नः सदपण्डः । आप. धर्म.२.६.१४.२
98
यस्य पूवेषाों षण्ाों न कदिद्दायािः स्यात्सदपण्डाः पुत्रस्थानीया वा तस्य धनों दवभजेरन्। तेषार्लाभ आचायाम न्तेवादसनौ
हरे यातार््।…वदस. धर्म.१७.८१-८२
99
असत्स्वन्ये षु तद्गार्ी ह्यर्ो भवदत। सदपण्डाभावे सकुल्यः । तिभावे दपताऽऽचायोऽन्तेवास्यृस्थत्वग्वा हरे त्।बौ. धर्म.१.५.११.९-११
100
पुत्राभावे यः प्रत्यासन्नः सदपण्डः । िु दहता वा। आप. धर्म. २.६.१४.२,४

59
सम्पदत्त कर सार् रहने वाले भाई तर्ा कन्याएँ प्राप्त करें और पुत्ररों वाले व्यस्थि की सम्पदत्त के अदधकारी
धर्म दववाहरों से उत्पन्न पुत्र तर्ा पुदत्रयाँ बनें ।101

साम्पदत्तक अदधकार नहीों िे ने का िू सरा पक्ष स्त्ीधन की व्यवस्था करना र्ा । इस धन कर खचम
(तवतनयोग) करने र्ें वह स्वतन्त् र्ी ।

स्त्री-धन– इसकी चचाम कुछ धर्मसूत्रकाररों ने ही की है। स्त्ीधन वह धन र्ा, दजस पर उसका पूर्म
स्वत्व हरता र्ा, यह वस्त्, आभूषर् और धन के रूप र्ें दववाह के अवसर पर तर्ा अन्य दवदशष्ट अवसररों
पर र्ाता-दपता, भाई, बन्धु-बान्धव और पदत से प्राप्त करती र्ी।102 दवष्णु के अनुसार र्ाता-दपता, पुत्ररों और
भाइयरों के द्वारा दवदवध अवसररों पर दिया गया धन, वैवादहक अदग्न के सम्मुख दपता द्वारा दिया गया धन,
पदत द्वारा िू सरा दववाह करने पर पहली पत्नी कर दिया धन, सम्बस्थन्धयरों के द्वारा दिया धन, दववाह के अवसर
पर वरपक्ष द्वारा कन्यापक्ष कर दिया शुल्क और उपहार स्त्ीधन कहलाता र्ा।103 याज्ञवल्क्य के अनुसार
दपता, र्ाता, पदत या भाई द्वारा दिया गया धन, दववाह के सर्य अदग्न के सर्ीप प्राप्त धन तर्ा पदत के द्वारा
अन्य स्त्ी से दववाह के सर्य प्राप्त धन – ये स्त्ीधन कहलाते हैं । स्त्ी के र्ाता-दपता के बन्धुओों द्वारा दिया
धन, पररर्य के शुल्क के रूप र्ें दिया गया धन, दववाह के बाि पदत तर्ा दपतृकुल से प्राप्त धन भी स्त्ीधन
कहलाता है ।104 र्नु ने छः प्रकार के स्त्ीधनरों का उल्लेख दकया है – वैवादहक अदग्न के सम्मुख दपता द्वारा
दिया धन, दविाई के सर्य दिया धन, प्रेर् सम्बन्धी दकसी अवसर पर पदत के द्वारा दिया धन, भाई, र्ाता-
दपता आदि के द्वारा दवदवध अवसररों पर दिया धन स्त्ीधन कहलाता है।105

इस प्रकार स्पष्ट है दक स्त्ी-धन के दवषय र्ें पयामप्त अवधारर्ा दवकदसत हर चुकी र्ी । यह उसका
अदधकार बन चुका र्ा। डॉ. कार्े ने दलखा है दक वह धन दजसे स्त्ी दववाहरपरान्त स्वयों (अपने पररश्रर् से)
अदजमत करती र्ी या बाहरी लरगरों से प्राप्त करती र्ी, स्त्ीधन नहीों कहलाता र्ा।106 स्त्ी-धन के स्वादर्त्व
के दवषय र्ें आपस्तम्ब कुछ आचायों के र्त का उल्लेख करते हुए कहते है दक वस्त्ाभूषर्ादि सम्पदत्त
बन्धुओ,ों दपता, पदत से दर्लती हैं, उस पर स्त्ी का स्वत्व हरता है।107 इस दवषय पर धर्मसूत्ररों र्ें अदधक
उल्लेख नहीों है। कार्े के अनुसार स्त्ीधन पर स्वादर्त्व तीन बातरों पर दनभमर करता है , प्रर्र्- सम्पदत्त प्राप्त
करने का उद्गर्, दद्वतीय- प्रास्थप्त के सर्य उसकी स्थस्थदत अर्ामत् वह कुर्ारी है या दववादहत, सधवा है या
दवधवा, तृतीय- वह सम्प्रिाय दजसके अनुसार उस पर िृदत-शासन हरता र्ा।108 आपत्काल र्ें स्त्ीधन पर
पदत का भी अदधकार र्ा। कौदटल्य के अनुसार पदत स्त्ीधन का उपयरग दवपदत्त आने पर, बीर्ारी, िु दभमक्ष
और भय के प्रदतकार तर्ा धर्मकायम के दलए कर सकता र्ा।109 याज्ञवल्क्यानुसार यदि पदत िु दभमक्ष,

101
द्रव्ययपुत्रस्य सरियाम भ्रातरः सहजीदवनर वा हरे युः कन्याि ।
ररक्थों पुत्रवतः पुत्रा िु दहतरर वा धदर्मिेषु दववाहे षु जायाः तद्भावे दपता धरर्ार्ः ॥ अर्म. ३.१५
102
भदगनीशुल्कः सरियाम र्ार्ूर्ध्ां र्ातुः । गौ. धर्म. ३.१०.२३
103
दपतृर्ातृसुतभ्रातृित्तर्ध्यग्न्युपागतर्ादधवेिदनकों बन्धुित्तों शुल्कर्न्वाधेयकदर्दत स्त्ीधनर््।दव. धर्म. १७.१८
104
दपतृर्ातृपदतभ्रातृित्तर्ध्यग्न्युपागतर्् ।
आदधवेिदनकाद्यों च स्त्ीधनों पररकीदतमतर्् ॥
बन्धुित्तों तर्ा शुल्कर्न्वाधेयकर्ेव च ॥ याज्ञवल्क्य िृदत, २.१४३-१४४अ
105
अध्यग्न्यध्यावाहदनकोंित्तोंचप्रीदत-कर्मदर्।
भ्रातृर्ातृदपतृ प्राप्तों षड् दवधों स्त्ीधनों िृतर््॥र्नु. ९.१९४
106
धर्मशास्त्काइदतहास, पी.वी. कार्े, भाग-२, पृ. ९४०
107
अलङ्कारर भायाम याः ज्ञादतधनों चेत्येके। आप. धर्म.२.६.१४.९
108
धर्मशास्त् का इदतहास, पी.वी. कार्े, भाग-२, पृ. ९४२
109
प्रदतररधकव्यादधिु दभमक्षभयप्रतीकारे धर्मकाये व पत्युः । अर्म. ३.२

60
धर्मकायम, व्यादध, जेल जाने की स्थस्थदत र्ें इस धन का उपयरग करता है तर उसे यह धन वापस लौटाने के
दलए बाध्य नहीों दकया जा सकता।110 शास्त्काररों ने इस धन का िु रुपयरग ररकने की भी व्यवस्था की र्ी ।
यदि स्त्ी राजदवररधी बातें कहती हर, शराब एवों जुएँ आदि व्यसन करती हर तर्ा व्यदभचाररर्ी हर तर उसका
स्त्ीधन से स्वत्व सर्ाप्त हर जाता है।111 स्त्ीधन पर उत्तरादधकार के सोंिभम र्ें सार्ान्यतयाः पुत्र की अपेक्षा
पुत्री कर वरीयता िी जाती र्ी। सूत्रकाररों र्ें सवमप्रर्र् गौतर् ने सर्र्मन दकया तर्ा स्त्ीधन का नार्रल्लेख
भी दकया। उनके अनुसार स्थस्त्यरों की र्र्ता साधारर्तः पुदत्रयरों के प्रदत हरती है , अतः धन की
उत्तरादधकाररर्ी भी उसकी पुदत्रयाँ हरती हैं। पुदत्रयरों र्ें भी सवमप्रर्र् अदववादहत पुदत्रयाँ ही अदधकाररर्ी
हरती हैं दकन्तु उसके अभाव र्ें दनधमन दववादहत पुदत्रयरों कर यह धन दर्लता है।112 बौधायन और वदसि के
अनुसार पुदत्रयाँ र्ाता कर परम्परा र्ें दर्ले उपहाररों कर ग्रहर् करती हैं।113 दवष्णु ने भी पहला अदधकार
पुत्री का र्ाना है।114 कार्े के अनुसार इस सर्य तक स्त्ीधन का पयामप्त दवस्तार हर गया र्ा और लरगरों
कर यह बात पसन्द नहीों आयी दक स्थस्त्यरों कर ज्यािा सम्पदत्त दर्ले।115 अतः सर्य के सार् इस पर पुत्ररों का
भी अदधकार हरने लगा। र्नु ने र्ाता की र्ृत्यु पर धन कर सभी भाई-बहनरों र्ें बाँट लेने का दनिे श दकया।116
यदि स्त्ी दनः सोंतान र्र जाती र्ी तर उसका धन दपतृकुल र्ें चला जाता र्ा, यदि दववाह आसुरदवदध से हुआ
हर।117 यहाँ स्त्ीधन कर पदत के द्वारा हड़पने का अदधकार नहीों र्ा। पदत का नैदतक िादयत्व र्ा दक स्त्ी के
सार् आये धन कर पुनः लौटा िे । दवष्णु ने कहा है दक स्त्ी दनः सन्तान र्र जाये और उसका दववाह र्ान्यता
प्राप्त करदट से (ब्रह्म, आषम, िै व, प्राजापत्य) हुआ हर तर धन पदत कर दर्लता है , शेष दपतृकुल कर।118

दनष्कषमतः स्त्ीधन के दनयर्, उत्तरादधकारादि का इदतहास और दवकास स्त्ीजादत के प्रदत भारतीय

सोंस्कृदत की उिारता एवों न्यादयकता का ज्वलन्त उिाहरर् है।

iv. आधथमक अधधकाि

भूदर् पर व्यस्थिगत स्वादर्त्व र्ाना जाता र्ा । यह दनजी सम्पदत्त के अदधकार के अन्तगमत आता
र्ा, दजसर्ें व्यस्थि कर भूदर् क्रय-दवक्रय, िान िे ने या दगरवी रखने का अदधकार र्ा । कृषक द्वारा जर्ीन
कर पट्टे पर िे ने का उल्लेख दर्लता है । आपस्तम्ब के अनुसार यदि करई व्यस्थि दकसी का खेत पट्टे पर
लेकर उसर्ें खेती नहीों करता तर राजा उस व्यस्थि से नुकसान की पूदतम करवाये ।119 क्यरोंदक उसके खेती
नहीों करने से सोंभादवत उपज की प्रास्थप्त नहीों हरती एवों क्षेत्रस्वार्ी कर तर नुकसान हरता ही है , िे श की
अर्मव्यवस्था कर भी अप्रत्यक्षतः हादन हरती है । वस्तुतः प्राचीन काल र्ें तर्ा आज भी कृदष का र्हत्त्व कर्

110
िु दभमक्षे धर्मकाये च व्याधौ सोंप्रदतररधके।
गृहीतम्स्त्स्त्ीधनों भताम न स्त्यै िातुर्हम दत॥याज्ञ. २.१४७
111
राजदद्वष्टादतचाराभ्यार्ात्मापक्रर्र्ेन च।
स्त्ीधनानीतशुल्कानार्स्वान्यों जायते स्थस्त्यः ॥ अर्म.३.३
112
स्त्ीधनों िु दहतॄर्ार् प्रत्तानार्प्रदतदितानाों च।गौ. धर्म. ३.१०.२२
113
र्ातुरलङ्कारों िु दहतरस्साम्प्रिादयकों लभेरन्नन्यद्वा। बौ. धर्म.२.२.३.४४
र्ातुः पाररर्ेयों स्थस्त्यर दवभजेरन्। वदस. धर्म. १७.४६
114
सवेष्वेव प्रसूतायाों यद्धनों ति् िु दहतृगादर्। दव. धर्म. १७.२१
115
धर्मशास्त् का इदतहास, पी.वी. कार्े, भाग-२, पृ. ९४३
116
जनन्याों सोंस्थस्थतायाों तु सर्ों सवे सहरिराः ।
भजेरन्मातृकों ररक्थों भदगन्यि सनाभयः ॥र्नु. ९.१९२
117
भदगनीशुल्कः सरियाम र्ार्ूर्ध्ां र्ातुः ।गौ. धर्म. ३.१०.२३
118
ब्राह्मादिषु चतुषुम दववाहे ष्वप्रजायार्तीतायाों तद्भत्तुमः । शेषेषु च दपता हरे त्।दव. धर्म.१७.१९-२०
119
क्षेत्रों पररगृह्यरत्थानाभावात्फलाभावे यस्सर्ृद्धस्स भादव तिपहायमः । आप. धर्म. २.११.२८.१

61
नहीों है । कृदष ही प्रार्दर्क क्षेत्र है दजस पर िे श की अर्मव्यवस्था दनभमर करती है । यहाँ भूदर् कर पट्टे पर
िे ने का अदधकार भी द्यरदतत हरता है । इसके अदतररि कृदषकर्म कर बीच र्ें छरडने का अदधकार नहीों
र्ा, अन्यर्ा आपस्तम्बानुसार वह व्यस्थि दपटने यरग्य हरता र्ा ।120

पशुपालन भी कृदष के सार् र्ुख्य व्यवसाय र्ा । राज्य द्वारा पशुओों के दहत के दलए व्यवस्थाएँ जैसे
चरागाह आदि की जाती र्ी । परन्तु पशुपालक कर िू सररों का नुकसान करने का अदधकार नहीों र्ा । पशु
के द्वारा उपज कर नष्ट करने पर िरष पशुपालक का हरता र्ा ।121 इस प्रकार यदि पूरी उपज नष्ट हर जाये
तर राजा क्षेत्रस्वार्ी कर पूरी उपज अपराधी से दिलाये ।122 परन्तु पशु कर अत्यदधक कष्ट िे ने का अदधकार
नहीों र्ा ।123

राजा का यह आदर्मक अदधकार र्ा दक जर वस्तुएँ राष्टर के दलए िु ः खिायक हर या दनरर्मक एवों
केवल शौक के दलए हरों, उन पर अत्यदधक कर लगाकर उनका आयात कर् कर िे ना चादहए ।124
दवलादसता की वस्तुएँ िे श की अर्मव्यवस्था के दलए घातक हरती हैं। नागररकरों कर जल जैसे र्हत्त्वपूर्म
सोंसाधन का दवभाजन करने का अदधकार नहीों र्ा ।125 आज दवदभन्न राष्टररों और राज्यरों के बीच जल-दववाि
हरते रहते हैं, जल कर स्वयों की सम्पदत्त र्ानकर व्यवहार दकया जाता है । धर्मसूत्ररों ने जल का दवभाजन
स्वीकार न कर उसका दर्लकर सर्ुदचत उपयरग पर बल दिया है ।

श्रधर्करों के अधधकाि - अर्मव्यवस्था के दलए श्रर्शस्थि की अतुलनीय भूदर्का रहती है । कारीगररों

कर आजीदवका का अदधकार प्रिान करने के दलए उन्ें पदवत्रता-अपदवत्रता के दनयर्रों से परे घरदषत दकया
गया है क्यरोंदक उनके व्यापक अदधकार-क्षेत्र और लरगरों की आवश्यकता पूरी करने के दलए व्यावहाररक
दवचार अत्यावश्यक हरते हैं । बौधायन के अनुसार कारू या कारीगर का हार् सवमिा शुद्ध रहता है , दवक्रय
के दलए फैलायी गयी वस्तु भी सिा शुद्ध रहती है ।126 यदि बाजार की वस्तुओों र्ें भी पदवत्रता सम्बन्धी
दनयर् लागू दकया जाता तर यह जन-सार्ान्य के जीवन के दलए अप्रायरदगक रहता, अतः यह दनयर् िे श-
काल के अनुसार प्रासोंदगक और जनसार्ान्य की आदर्मक उन्नदत के दलए है ।

आधथमक अपिाध – सर्ाज र्ें चररी के धन कर प्राप्त करने का अदधकार दकसी कर नहीों र्ा ।
गौतर् के अनुसार जर व्यस्थि चररी के धन कर बुस्थद्धपूवमक स्वीकार करता है वह भी चरर के सर्ान िण्डनीय
हरता है ।127 चररी के धन से अनजान जर र्नुष्य चररी के द्रव्य कर उदचत र्ूल्य िे कर खरीिता है वह दनिोष
हरता है; दकन्तु कालान्तर र्ें उस द्रव्य का पता लगने पर उसे र्ूल स्वार्ी कर िे ना हरगा । और जर चररी के
धन कर उदचत र्ूल्य से कर् र्ूल्य पर खरीिता है तर बेचने तर्ा खरीिने वाले िरनरों ही राज्य द्वारा िण्डनीय

120
अवादशनः कीनाशस्य कर्मन्यासर िण्डताडनर्् । आप. धर्म. २.११.२८.२
121
पशुपीदडते स्वादर्िरषः । गौ. धर्म. २.३.१६
122
सवमदवनाशे शिः । गौ. धर्म. २.३.२३
123
नाऽदतपातयेत् । आप. धर्म. २.११.२८.६
124
राष्टरपीडाकरों भाण्डर्ुस्थच्छन्स्द्यािफलों च यत् ।
र्हरपकारर्ुच्छुल्कों कुयाम द्बीजों तु िु लमभर्् ॥ अर्मशास्त्, २.२१
125
उिकयरगक्षेर्कृतान्नेश्वदवभागः । गौ. धर्म. ३.१०.४
126
दनत्यों शुद्धः कारुहस्तः पण्यों यच्च प्रसाररतर्् ।
ब्रह्मचाररगतों भैक्षों दनत्यों र्ेध्यदर्दत श्रुदतः ॥ बौ. धर्म. १.६.९.१
127
प्रदतग्रहीताऽप्यधर्मसोंयुिे । गौ. धर्म. २.३.४७

62
हरते हैं ।128 आपस्तम्ब के अनुसार अधर्म से भौदतक सुख-सुदवधाएँ ग्रहर् करने का अदधकार नहीों है । यदि
इस र्ागम से सुदवधाएँ दर्ल भी रही हर तर उन्ें त्याग िे - ‘र्ैं अधर्म के सार् नहीों रहँ गा’ कहना चादहए ।129
वतमर्ान काल र्ें इस उपिे श की प्रासोंदगकता है क्यरोंदक सभी के र्न र्ें अदधकादधक सुख-सुदवधाएँ जुटाने
की अदभलाषा रहती है, चाहे वह अधर्म पूवमक, दनदषद्ध कर्म करके या अनाचार के र्ाध्यर् से हर । इसी
कारर् भ्रष्टाचार कर बढावा दर्लता है । इसका सबसे घातक प्रभाव अर्मव्यवस्था पर ही पड़ता है ।

निष्कषष

इस प्रकार धर्मसूत्ररों र्ें प्रचुरता से उपलब्ध कत्तमव्य और अदधकार से सम्बस्थन्धत उद्धरर् यह दसद्ध
करते हैं दक धर्मसूत्र सादहत्य र्ें सवमप्रर्र् इस दवषय पर र्ानवीय दृदष्ट से दवचार दकया गया र्ा । नागररक
का व्यापक अर्म जैसा धर्मसूत्ररों र्ें दर्लता है वह वतमर्ान व्यवस्था र्ें िु लमभ है । नागररकता जैसी आधुदनक
सोंकल्पना का दवकास भी हर चुका र्ा । ये सब भारतीय सोंदवधान कर सुदृढ़ पृिभूदर् प्रिान करते हैं । इनर्ें
वदर्मत दनयर् और परम्पराएँ आज भी भारतीय सर्ाज र्ें प्रदतदबस्थम्बत हरती हैं ।

सन्दभम-ग्रन्थ सूची:

• आपस्तम्ब-धर्मसूत्रर््, आपस्तम्ब,हरित्तकृत उज्ज्वलावृदत्त सदहत, (दहन्दी व्याख्या) उर्ेशचन्द्र

पाण्डे य,चौखम्बा सोंस्कृत सोंस्थान, वारार्सी,दव. सों. २०६३.
• कौदटलीयर्र्मशास्त्र््, कौदटल्य,(सों.) वाचस्पदत गैररला, चौखम्बा दवद्याभवन, वारार्सी, २००३.
• गौतर्धर्मसूत्रादर्, गौतर्,हरित्तकृतदर्ताक्षरावृदत्त सदहतादन,(व्या.)उर्ेशचन्द्र पाण्डे य,चौखम्बा
सोंस्कृत सोंस्थान, वारार्सी, दव. सों. २०६१.
• बौधायन-धर्मसूत्रर््, बौधायन,(दह. व्या.) उर्ेशचन्द्र पाण्डे य, चौखम्बा सोंस्कृत सोंस्थान, वारार्सी,
दव. सों. २०६५.
• र्नुिृदत,र्नु, कुल्लूकभट्ट की टीका सदहत, (दह. अनु.) हरगरदवन्द शास्त्ी, चौखम्भा सोंस्कृत
सोंस्थान, दिल्ली, २००७.
• र्हाभारत, व्यास, गीताप्रेस गररखपुर, १९८७.
• र्हाभाष्य, पतञ्जदल, (अनु.) चारुिे व शास्त्ी, र्रतीलाल बनारसीिास, दिल्ली, १९६२.
• वदसिधर्मसूत्रर््, (अोंग्रेजी अनु.) जी. बुहलर, सेक्रेड बुक आफ दि ईस्ट, भाग-१४, र्रतीलाल
बनारसीिास, दिल्ली, १९६५.
• दवष्णु धर्मसूत्र (िृदत), (अोंग्रेजी अनु.) जूदलयस जॉली, सेक्रेड बुक आफ दि ईस्ट, भाग-७,
र्रतीलाल बनारसीिास, दिल्ली, १९६५.
• शतपर् ब्राह्मर्,(सों.) दचन्नास्वार्ी शास्त्ी, काशी सोंस्कृत ग्रन्र्ाला-१२७, चौखम्बा सोंस्कृत सोंस्थान,
वारार्सी, दव. सों. २०४०.
• दहरण्यकेशी धर्मसूत्र (दहरण्यकेशीश्रौतसूत्र का २६वाों और २७वाों प्रश्न), आनन्दाश्रर् सोंस्कृत सीरीज,
पूना, १९३२.

128
अजाजानः प्रकाशों यः परद्रव्यों कीर्ीयात्तत्र तस्यािरषः । स्वार्ी द्रव्यर्ाप्नुयात् । यद्यप्रकाशों हीनर्ूल्यों च क्रीर्ीयात्तिा क्रेता
दवक्रेता च चौरवच्छास्यौ । दव. धर्म. ५.१६४-१६६
129
अधर्ाम हृतान् भरगाननुज्ञाय न वयों चाऽधर्मिेत्यदभव्याहृत्याऽधर.......। आप. धर्म. १.१०.२८.११

63
• कार्े, पाण्डु रङ् वार्न,धर्मशास्त् का इदतहास, उत्तरप्रिे श दहन्दी सोंस्थान (दहन्दी सदर्दत प्रभाग),
लखनऊ, १९९२.
• याज्ञवल्क्यिृदत,याज्ञवल्क्य, दर्ताक्षरा की टीका सदहत, (दह. व्या.) िु गामधर झा, भारतीय दवद्या
प्रकाशन, दिल्ली, २००२.

64
 Lalit Miglani vs State of Uttarakhand and Others
30 March, 2017

Coram: Hon'ble Rajiv Sharma, J.

Hon'ble Alok Singh, J.
Per: Hon. Rajiv Sharma, J.

In sequel to the directions issued by this Court, Mr. Praveen Kumar, Director, National Mission
for Clean Ganga, along with Mr. Ishwar Singh, Legal Advisor, NAMAMI Gange Project, have
appeared.

Mr. Vinod Singhal, Member Secretary Uttarakhand Environmental Protection & Control Board is
also present in person. The Court has a long interaction with him. He apprised the Court that few
establishments have been sealed. However, the Court asked him why the Teams who go for sealing
the establishments issue the fresh notice after issuance of Closure Notices. He could not answer it
satisfactorily. There is no such provision for issuing notice over and time again once the closure
notice has been issued. This practice is deprecated and be stopped forthwith.

The personal appearance of the Member Secretary of the State Board is dispensed with.

The present miscellaneous application (CLMA 3003/17) has been filed by the petitioner for
declaring the Himalayas, Glaciers, Streams, Water Bodies etc. as legal entities as juristic persons
at par with pious rivers Ganga and Yamuna.

In normal circumstances, we would not have permitted the petitioner to file an application after
the disposal of petition but since the matter was kept alive on the principle of 'continuous
mandamus' and for the compliance of the judgment, we have entertained this application in the
larger public interest and to avoid further litigation. Moreover, the petition was filed as a public
interest litigation.

It is settled law that the principles of pleadings are liberal in the public interest litigations and the
technicalities should be eschewed.

Their Lordships of Hon. Supreme Court in (1989) Supp (1) SCC 504 in the case of 'Rural Litigation
& Entitlement Kendra v. State of U.P.' have held that in matters of grave public importance, court
is not bound by procedural technicalities. Their Lordships in paragraph nos.14, 16 and 17, have
held as under: -

"14. One of the submissions advanced at the bar is that the decision of this Court dated 12-3-19851,
was final in certain aspects including the release of the A category mines outside the city limits of
Mussoorie from the proceedings and in view of such finality it is not open to this Court in the same
proceedings at a later stage to direct differently in regard to what has been decided earlier.
Connected with this submission is the contention that during the pendency of these writ petitions,
the Environmental (Protection) Act of 1986 has come into force and since that statute and the Rules
made thereunder provide detailed procedure to deal with the situations that arise in these cases,
this Court should no more deal with the matter and leave it to be looked into by the authorities

65
under the Act. Counsel have relied upon what was stated by this Court while giving reasons in
support of the order of 12-3-19851, namely, "it is for the Government and the Nation -- and not
for the Court-- to decide whether the deposits should be exploited at the cost of ecology and
environmental considerations". In the order of 12-3-1985, this Court had pointed out: (SCC pp.
435-36, para 9)

16. The writ petitions before us are not inter-partes disputes and have been raised by way of public
interest litigation and the controversy before the court is as to whether for social safety and for
creating a hazardless environment for the people to live in, mining in the area should be permitted
or stopped. We may not be taken to have said that for public interest litigations, procedural laws
do not apply. At the same time, it has to be remembered that every technicality in the procedural
law is not available as a defence when a matter of grave public importance is for consideration
before the court. Even if it is said that there was a final order, in a dispute of this type it would be
difficult to entertain the plea of res judicata. As we have already pointed out when the order of 12-
3-1985, was made, no reference to the Forest (Conservation) Act of 1980 had been done. We are
of the view that leaving the question open for examination in future would lead to unnecessary
multiplicity of proceedings and would be against the interests of society. It is meet and proper as
also in the interest of the parties that the entire question is taken into account at this stage.

17. Undoubtedly, the Environment (Protection) Act, 1986 (29 of 1986) has come into force with
effect from 19-11-1986. Under this Act power is vested in the Central Government to take
measures to protect and improve the environment. These writ petitions were filed as early as 1983
-- more than three years before the Act came into force. This Court appointed several expert
committees, received their reports and on the basis of materials placed before it, made directions,
partly final and partly interlocutory, in regard to certain mines in the area. Several directions from
time to time have been made by this Court. As many as four reportable orders have been given.
The several parties and their counsel have been heard for days together on different issues during
the three and a quarter year of the pendency of the proceedings. The Act does not purport to -- and
perhaps could not -- take away the jurisdiction of this Court to deal with a case of this type. In
consideration of these facts, we do not think there is any justification to decline the exercise of
jurisdiction at this stage. Ordinarily the court would not entertain a dispute for the adjudication of
which a special provision has been made by law but that rule is not attracted in the present situation
in these cases. Besides it is a rule of practice and prudence and not one of jurisdiction. The
contention against exercise of jurisdiction advanced by Mr Nariman for the intervener and
reiterated by some of the lessees before this Court must stand overruled."

Gangotri Glacier is situated in District Uttarkashi of the State of Uttarakhand. It is

330.2 kilometres long and between 0.5 to 2.0 kilometres wide. It is one of the largest Glaciers in
the Himalayas. However, it is receding since 1780. The receding is quick after 1971. According to
the images of NASA, over the last 25 years, Gangotri glacier has retreated more than 850 meters,
with a recession of 76 meters from 1996 to 1999 alone. River Ganga originates from Gangotri
Glacier. River Yamuna originates from Yamunotri Glacier. It is also situated in
District Uttarkashi. Yamunotri Glacier is also receding at an alarming rate. These Glaciers are
receding due to pollution as well as climate change. The urgent remedial steps are required to be
taken to ensure that the receding of these Glaciers is stopped. Both Ganga and Yamuna Rivers are
revered as deities by Hindus. Glacial Ice is the largest reservoir of fresh water on earth.

66
In State of Uttarakhand, there are various natural parks. The natural parks are threatened due to
human activities around these parks and overall degradation of environment. These natural parks
function as lungs for the entire atmosphere. The forests are also threatened due to large scale
deforestation. The mountains are denuded of the forests and jungles.

In one of the articles contained in "The Secret Abode of Fireflies, Loving and Losing Spaces of
Nature in the City", the importance of trees is explained in article "Foresters without Diplomas"
written by Sri Wangari Muta Maathai (Kenyan Environmentalist and Nobel Peace Winner-2004),
which is as under :- "We could see Mount Kenya from my house, and I grew up hearing that God
lives in Mount Kenya and all good things come from there. The clouds, the rains, the rivers in
which I played with frogs' egg and tadpoles; they all start from there. And they said that sometimes
Ngai likes to take a walk in the mountains and the forests. If anyone used their machetes to cut
down trees, it was said that the trees would bleed. You were only allowed to collect dry, fallen
wood for fuel these forests full of fig trees.

In the same book in article captioned "Nature has Rights too" written by Vikram Soni & Sanjay
Parikh, the rights of Nature have been explained, as under: - "Human rights commissions are
obligatory vigilantes in all democracies. Human rights are about inequities between one set of
human beings and another. These range from usurping the sovereign rights of one nation by
another more powerful one, to more local violations. They arise when the rich and powerful exploit
the poor and disenfranchised. They reveal themselves in violence against women, violence against
members of lower caste and creeds and other such instances. They are horrible acts and are often
portrayed graphically. Violations against nature can be equally appalling despite being viewed
through the filter of 'environmental damage'. The Stockholm Declaration accepts the environment
as part of basic human rights-the right to life itself.

In the book, “The Secret Abode of Fireflies, Loving and Losing Spaces of Nature in the City", in
an article under the caption "Under the Banyan Tree" written by Devdutt Pattanaik, the importance
of trees under Indian Mythology has been explained as under:

"Trees are sacred in India, and are often associated with a god or a godless. Some Scholars believe
that it is the tree that was worshipped first; perhaps for its medicinal or symbolic purpose, and that
the gods and goddesses came later. That may be the case, but today, trees are an integral part of a
deity's symbolism. The mango tree, for example is associated with the Love God Kama, the tulsi
plant is dear to Vishnu, bilva is associated with Shiva worship, blades of dhruva grass are offered
to Ganesha, neem or margosa is sacred to the Mother Goddess, coconut and banana are associated
with Lakshim.

The bayan tree is associated with Yama, the God of Death, and the tree is often planted outside the
village near crematoriums. It is believed to be the abode of ghosts. Vetals and pisachas are
supposed to hang from its many branches.

Indians knew that banyan tree as the vata vriksha. When the British came to India, they notices
that members of the trading or Bania community gathered under a large shady fig tree, which they
named the banyan, from Bania. Technically, Ficus bengalensis, the banyan, belongs to the fig

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family. There are various types of fig trees all over the world and some of these are sacred. The
most popular one is the Ficus religiosa, or the peepul which became especially popular in the
Buddhist times, because it was under this tree that Gautama Siddhartha of the Sakya clan attained
enlightenment. It was the leaves of a fig tree that Adam and Eve used to cover their nakedness in
Eden after they were tempted to eat the forbidden fruit by Satan.

The banyan tree does not let a blade of grass blow under it. Thus, it does not allow for any rebirth
and renewal. While the banyan offers shade from the sun, it offers no food. That is why it is not
part of fertility ceremonies like marriage and child birth where food-giving, rapidly renewing
plants with a short lifespan such as banana, mango, coconut, betal, rice and even grass are included.

Marriage and rebirth are rites of passage; they represent major shifts in life. They are all about
instability and flux; the banyan tree is the very opposite. It is stable and constant. It has a long
lifespan, and hence seems immortal. Its roots descend from the branches and then anchor the tree
to the ground, transforming into trunks eventually, so that decades later, it is difficult to distinguish
root from stem. Things that evolve the notion of immortality become auspicious in India; for
example, the immoral mountain, the immortal sea, the immortal diamond and indestructible ash.
This is because since ancient times, Indian seers were acutely aware of the transitory nature of
things around us. Everything dies-every plant, every animal, even moments die; the present
becomes the past in an instant. In an ever-changing world, we seek constancy and permanence.
The banyan tree is therefore worthy of veneration. It is evergreen and shady, hence an eternal
refuge for all creatures unable to bear the vagaries of life.

Thus, it emerges that in Indian though, there are two types of sacredness- one that is associated
with impermanent material reality, and the other, which is associated with permanent spiritual
reality. The banana and the coconut fit into the previous category; the banyan fits into the latter.
Banana is the symbol of flesh, constantly dying and renewing itself. Banyan is the soul-never
needing to renew itself. The banyan is the botanical equivalent of the hermit.
Just as a hermit cannot raise a family, a banyan tree cannot support a household. It represents not
the material aspiration of a people; it represents the spiritual aspiration. The banyan tree is said to
be immortal; it is akshaya, that which survives parlaya, the destruction of the whole world.

The Mahabharata tells the story of a woman called Savitri, who lost her husband, as destined one
year after her marriage near a banyan tree. She followed Yama to the land of the dead, and through
determination and intelligence, managed to secure back her husband's life. In the memory of the
event, Hindu women circle the banyan tree, tying seven stings around it. This is imitative magic;
by symbolically going around the immortal tree, the women are binding immortality into their
married lives. They are securing the lives of their husbands, the pillars of their households. They
are protecting themselves from widowhood, which is believed by most Hindus to be the worst fate
for a woman. Under the banyan tree sat the sages of India - those who rejected the flesh and the
material world and aspired for the soul alone. This was the favourite tree of the sadhu, the
wandering hermit. The greatest of hermits, Shiva, was often represented in its shade as stone called
the Lingam. Being an ascetic, Shiva was not part of the village; he was a hermit, not a householder;
he did not fear ghosts and so was comfortable staying in the shade of this immortal, never dying,
and never renewing plant.

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In iconography, Shiva is visualized as Dakhshinamurti, he who faces the South-South being the
direction of death and change. He sits under the banyan tree, the botanical embodiment of the
universal soul, facing the terror of death and change stoically, unafraid, because of his profound
understanding of the world. At his feet sit sages who are recipients of Shiva's wisdom. In South
Indian temples, Shiva's south facing form, under the banyan tree, is placed on the south facing wall
of the temple. Like Shiva, Vishnu is also a form of God. But Vishnu is not associated with the
banyan tree, perhaps because Vishnu is that aspect of God, which more associated with change.
He goes with the flow- this attitude is called leela or playfulness- he does not fear change. Vishnu
is therefore associated with the fragrant tulsi plant, or with flowering plants like champa and
Kadamba. But there is one time when Vishnu is associated with the banyan tree. It is during the
end of the world, when flood waters rise and dissolve all things. Sage Markandeya, who had a
terrifying vision of this event, saw Vishnu as a baby lying on the leaf of banyan tree, cradled by
the deadly waves. This form of Vishnu is called Vatapatra-Shayin, he who rests on the banyan
leaf. The image is rich in symbols; the whole world may seem transitory, like the waves of the
ocean, but all life can renew itself, as a baby replaces the older generation, because divine grace
represented by Vishnu is eternal, like a banyan leaf."

The UN Conference on the Human Environment was held from 5 to 16 June, 1972 at Stockholm.
It was convened pursuant to UN General Assembly Resolution 2398 of 3 December, 1968, on a
proposal from Sweden. Delegates from 113 States attended the Conference, representing most of
the UN membership with the exception of the USSR. The Conference call upon Governments and
peoples to exert common efforts for the preservation and improvement of the human environment,
for the benefit of all the people and for their posterity.

II Principles States the common conviction that:

Principle 1 Man has the fundamental right to freedom, equality and adequate conditions of life, in
an environment of a quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and future generations. In this
respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial
and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 2 The natural resources of the earth, including the air, water, land, flora and fauna and
especially representative samples of natural ecosystems, must be safeguarded for the benefit of
present and future generations through careful planning or management, as appropriate.

Principle 3 The capacity of the earth to produce vital renewable resources must be maintained and,
wherever practicable, restored or improved.

Principle 4 Man has a special responsibility to safeguard and wisely manage the heritage of wildlife
and its habitat, which are now gravely imperiled by a combination of adverse factors. Nature
conservation, including wildlife, 19 must therefore receive importance in planning for economic
development.

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Principle 5 The non-renewable resources of the earth must be employed in such a way as to guard
against the danger of their future exhaustion and to ensure that benefits from such employment are
shared by all mankind.

Principle 6 The discharge of toxic substances or of other substance and the release of heat, in such
quantities or concentrations as to exceed the capacity of the environment to render them harmless,
must be halted in order to ensure that serious or irreversible damage is not inflicted upon
ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.

Principle 7 States shall take all possible steps to prevent pollution of the seas by substances that
are liable to create hazards to human health, to harm living resources and marine life, to damage
amenities or to interfere with other legitimate uses of the sea.

Principle 8 Economic and social development is essential for ensuring a favorable living and
working environment for man and for creating conditions on earth that are necessary for the
improvement of the quality of life.

Principle 9 Environmental deficiencies generated by the conditions of underdevelopment and

natural disasters pose grave problems and can best be remedied by accelerated development
through the transfer of substantial quantities of financial and technological assistance as a
supplement to the domestic effort of the developing countries and such timely assistance as may
be required.

Principle 10 For the developing countries, stability of prices and adequate earnings for primary
commodities and raw materials are essential to environmental management, since economic
factors as well as ecological processes must be taken into account.

Principle 11 The environmental policies of all States should enhance and not adversely affect the
present or future development potential of developing countries, nor should they hamper the
attainment of better living conditions for all, and appropriate steps should be taken by States and
international organizations with a view to reaching agreement on meeting the possible national
and international economic consequences resulting from the application of environmental
measures.

Principle 12 Resources should be made available to preserve and improve the environment, taking
into account the circumstances and particular requirements of developing countries and any costs
which may emanate from their incorporating environment safeguards into their development
planning and the need for making available to them, upon their request, additional international
technical and financial assistance for this purpose.

Principle 13 In order to achieve a more rational management of resources and thus to improve the
environment, States should adopt an integrated and coordinated approach to their development
planning so as to ensure that development is compatible with the need to protect and improve
environment for the benefit of their population.

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Principle 14 Rational planning constitutes an essential tool for reconciling any conflict between
the needs of development and the need to protect and improve the environment.

Principle 15 Planning must be applied to human settlements and urbanization with a view to
avoiding adverse effects on the environment and obtaining maximum social, economic and
environmental benefits for all. In this respect projects which are designed for colonialist and racist
domination must be abandoned.

Principle 16 Demographic policies which are without prejudice to basic human rights 20 and which
are deemed appropriate by Governments concerned should be applied in those regions where the
rate of population growth or excessive population concentrations are likely to have adverse effects
on the environment or development, or where low population density may prevent improvement
of the human environment and impede development.

Principle 17 Appropriate national institutions must be entrusted with the task of planning,
managing or controlling the environmental resources of States with a view to enhancing
environmental quality.

Principle 18 Science & technology, as part their contribution to economic and social development,
must be applied to the identification, avoidance and control of environmental risks and the solution
of environmental problems and for the common common good of mankind.

Principle 19 Education in environmental matters, for the younger generations as well as adults,
giving due consideration to the underprivileged, is essential in order to broaden the basis for an
enlightened opinion and responsible conduct by individuals, enterprises and communities in
protecting and improving the environment in its full human dimension. It is also essential that mass
media of communications avoid contributing to the deterioration of the environment, but, on the
contrary, disseminate information of an educational nature on the need to protect and improve the
environment in order to enable man to developing every respect.

Principle 20 Scientific research and development in the context of environmental problems, both
national and multinational, must be promoted in all countries, especially the developing countries.
In this connection, the free flow of up-to-date scientific information and transfer of experience
must be supported and assisted, to facilitate the solution of environmental problems; environmental
technologies should be made available to developing countries on terms which would encourage
their wide dissemination without constituting an economic burden on the developing countries.

Principle 21 States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction.

Principle 22 States shall cooperate to develop further the international law regarding liability and
compensation for the victims of pollution and other environmental damage caused by activities
within the jurisdiction or control of such States to areas beyond their jurisdiction.

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Principle 23 Without prejudice to such criteria as may be agreed upon by the international
community, or to standards which will have to be determined nationally, it will be essential in all
cases to consider the systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced countries but which may be
inappropriate and of unwarranted social cost for the developing countries.

Principle 24 International matters concerning the protection and improvement of the environment
should be handled in a cooperative spirit by all countries, big or small, on an equal footing. Co-
operation through multilateral or bilateral arrangements or other appropriate means is essential to
effectively control, prevent, reduce and eliminate adverse environmental effects resulting from
activities conducted in all spheres, in such a way that due account is taken of the sovereignty and
interests of all States.

Principle 25 States shall ensure that international organizations play a coordinated, efficient and
dynamic role for the protection and improvement of the environment.

Principle 26 Man and his environment must be spared the effects of nuclear weapons and all other
means of mass destruction. States must strive to reach prompt agreement, in the relevant
international organs, on the elimination and complete destruction of such weapons.
The world charter for Nature sought to have its guiding principles given effect through National
legislation and international practice. These principles include respect for nature, safeguarding of
habitats necessary to maintain sufficient population levels for the survival of all life forms,
protection of unique areas, representative samples of all ecosystems and of habitats of rare or
endangered species.

In the book of Forest Futures (Global Representations and Ground Realities in the Himalayas)
authored by Antje Linkenbach has made following pertinent observations on the concept of Chipko
Andolan which was nationally and internationally acclaimed:

"With the global emergence of the ecological debate the fame of the Chipko Andolan (i.e. the 'hug
the trees' movement) spread in India and abroad. This andolan was represented national and
internationally by two of its leading figures, Chandi Prasad Bhatt, and, especially, Sunderlal
Bahuguna. Both received several awards for their ecological commitment and are widely accepted
as spokesman in ecological matters. Chipko developed into a popular subject in print and audio-
visual media; it has been taken up as an issue in academic debates; it served and still serves political
and ideological arguments. Numerous publications have dealt with, or have at least referred to,
Chipko's incidents. And differing re-presentations of the Chipko anodlan show that the movement
became instrumental for various interest groups: it has been presented to the public as an
'ecological movement, as a 'peasant movement' with ecological impact, as a 'women's or eco-
feminist movement' as a 'Gandhian movement' (forest satyagraha). In most of these publications a
protective ('ecologically friendly') attitude is assumed to guide traditional relations with nature and
the social practices of the people in Uttarakhand, who, accordingly, are believed to perceive
environmental degradation as primarily an ecological problem."
According to the author, there are three most effective representations of Chipko Andolan which
consist of Peasant movement, Ecological movement and Eco- feminist movement.

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Author has translated Chipko song, composed and sung by Women of Lata which is as under :-

"Hey, didi, hey bhulli, let us all unite and with our own efforts let us save our jungle. The maldars
and thekedars want to make money. Our cows and our cattle, they go to the jungle and with them
our young people. Hey, Rishi Maharaj, come and show yourself with your real power. Chase for
away the 600 trucks heavily loaded, and along with them drive back the strangers. Hey, Lata
Bhagvati, come and show yourself with your real power, chase for away the maldars and thekedars.
When our jungle is saved, only then will return (to our villages).

The Tilari Declaration was adopted by the people on 30.05.1968 in the memory of the martyrs
who laid down their lives for the protection of the forest rights on 30.05.1968.
"Forests have been the basis of our cultural and economic life from the very beginning of this
civilization. Our main duty is to protect the forest. We declare our birthright as being to fulfil our
basic needs through forest products, through the forest, and to get employment from the forest.
The harmonious relationship to the forest which is the basis of our happiness and prosperity should
be permanent, for it is essential. The first use of forest wealth should be for the happiness and
prosperity of the forest dwellers, of the people living near the forest. The forest products which are
of daily use and which are used for village industries should be easily available for everybody.
Forest industries based on forest products should be established near the forest.
The present system of forest exploitation by the contractors should be replaced with forest labour
co-operatives of the local people. In order to link love with knowledge about the forest in forest
areas, botany and geology should be a part of curriculum at every stage of education in forest areas.
Their peaceful movement and brave martyrdom may inspire us and keep us alert for the protection
of forest and forest rights. So we take a pledge to celebrate this day as 'Forest Day'.

Learned author has reproduced Chipko slogans as under: -

• Protection of forests means protection of the country! (Vanon ki

raksha, desh ki raksha)

• This is the call of Uttarakhand-forest rights in panchayats hands!

(Uttarakhand ke yeh lalkar, panchayaton ko van adhikar) Stop our exploitation by the contactor
system! Daily earnings from forest wealth - this is a right of forest dwellers! (Van sampada se
rozgar, vanvasiyon ka adhikar) Learned author has also translated Chipko Song composed by
Ghanshyam Shailani which reads as under:

"Brothers and Sisters from the hills! Let us all gather and unite.
Let us be ready to save our beloved jungle from the government's forest policy. Through
auctioneers and contractors all the forests have been cut away.
Bad times have come and in the hills the forest has been destroyed. The whole benefit of the jungle
has been taken away by contractors. For years, we have cared for the forest and for long we have
protected the jungle. Today the rich capitalists are cutting forests and accumulating wealth, And
young people of the hills, who have real rights to the forest go to the plains and wash their dishes.

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Today the factory for resin processing is located in Bareilly, but the resin, the law material, they
get from here; and the whole profit goes to the Bareilly resin factory in order to earn more wealth
from the chir pines deep wounds were cut in them and resulted in too many trees dying.
The government and the rich capitalists together are sweeping the jungle clear, and nobody worries
about plating new trees. Instead, the Forest Department has become the destroyer of forests. To
save the jungle there are no hopes, to save the jungle there are no words. Cling to the trees and
don't let them be cut! Don't let the forest's wealth be plundered! Through the establishment of small
forest-based industries benefit will come to the hill region, and through it fortune and prosperity
to forest dwellers. Everywhere in the hills socialism will come and from village to village the
sound of the conch* will be heard.

The contribution of Sri Sunderlal Bahuguna is discussed as under:-

"In sum, Bahuguna's alternative concept of development is marked by an emphasis on

sustainability and ethics which lead to an attitude towards nature instructed b worship and respect.
To achieve sustainability, care for posterity should get at least that much, if not more' (1990:12).
Therefore, the contract between the generations', to put it in the words of Jonas and King, demands
not exploiting or over exploiting non-renewable as well as renewable resources. This alternative
does not dismiss science and technology, but demands they be guided by 'wisdom', which is neither
contained in volumes of books nor in the minds of great professors, but in the lives of the common
people' (1992:9). And this wisdom lies, in part, in 'switching over from agriculture to tree farming'
(1992:10). Such farming would not propagate species which are useful for commercial purposes:
The tree cover around the villages should be such as to provide food to human beings and fodder
to the cattle. Priority should be given to trees yielding edible seeds, nuts, oilseeds, honey and
seasonal fruits. In higher altitudes, above 1500 metres, soft walnut, sweet chestnut, hazelnut and
wild apricot can be successfully cultivated. In lower altitudes mango, amla, bael, and jamun
[indigenous names of local fruits] will thrive. An average hill family will need 300 nuts/fruits,
1500 fodder and 200 fibre trees (mulberry, ringal and bamboo) to be self-sufficient.(1989c:8).
Forest fires emanate carbon-dioxide posing serious threat to environment and ecology. It is the
human beings who have encroached upon the forest land of wild animals. The habitat of wild
animal is shrinking 39 resulting in wild animals coming in contact with the human beings.

The preamble and principles formulated by United Nations Conference on Environment

and Development states that the forestry issues and opportunities should be
examined in a holistic and balanced manner within the overall context of environment and
development, taking into consideration the multiple functions and uses of forests, including
traditional uses, and the likely economic and social stress when these uses are constrained or
restricted. All types of forests embody complex and unique ecological processes which are the
basis for their present and potential capacity to provided resources to satisfy human needs as well
as environmental values. Forests are essential to economic development and the maintenance of
all forms of life. Forest resources and forest lands should be sustainably managed to meet the
social, economic, ecological, cultural and spiritual human needs of present and future generations.
These needs are for forest products and services, such as wood and wood products, water, food,
fodder, medicine, fuel, shelter, employment, recreation, habitats for wildlife, landscape diversity,
carbon sinks and reservoirs, and for other forest products. Appropriate measures should be taken
to protect forests against harmful effects of pollution, including air-borne pollution, fires, pests

74
and diseases, in order to maintain their full multiple value. The provision of timely, reliable and
accurate information on forests and forest ecosystems is essential for public understanding and
informed decision-making and should 40 be ensured. Governments should promote and provide
opportunities for the participation of interested parties, including local communities and forest
dwellers and women, in the development, implementation and planning of national forest policies.
National policies and strategies should provide a framework for increased efforts, including the
development and strengthening of institutions.

The vital role of all types of forests in maintaining the ecological processes and balance at the
local, national, regional and global levels should be recognized. National forest policies should
recognize and duly support the identity, culture and the rights of indigenous people, their
communities and other communities and forest dwellers. The full participation of women in all
aspects of the management, conservation and sustainable development of forests should be actively
promoted. The forests play an important role in meeting energy requirements through the provision
of a renewable source of bio-energy. The role of planted forests and permanent agricultural crops
as sustainable and environmentally sound be recognized, enhanced and promoted. Their
contribution to the maintenance of ecological processes, to offsetting pressure on primary/old-
growth forest and to providing regional employment and development with the adequate
involvement of local inhabitants should be recognized and enhanced. Natural forests also
constitute a source of goods and services, and their conservation, sustainable management and use
should be promoted. Efforts should be made for increasing the forest 41 productivity.

National policies and/or legislation aimed at management, conservation and sustainable

development of forests should include the protection of ecologically viable representative or
unique examples of forests, including primary/or-growth forests, cultural, spiritual, historical,
religious and other unique and valued forests of national importance. National policies should
ensure that environmental impact assessments should be carried out where actions are likely to
have significant adverse impacts on important forest resources. National policy should be
formulated with respect to all types of forests taking into account of the pressures and demands
imposed on forest ecosystems.

Lord Gautam Budha and Lord Mahavira also sat under the trees for enlightenment. The trees in
India are worshipped as incarnations of the goddess: Bamani Rupeshwari, Vandurga. The goddess
of the forest, Aranyi, has inspired a whole body of texts, known as 'Aranyi Sanskriti'. It means,
"the Civilisation of Forest".
Animals and birds are trapped in the fire.
Birds lose their sense of direction due to heavy smog.
It is the human beings who have encroached upon the forest land of wild animals. The habitat of
wild animal is shrinking resulting in wild animals coming contact with the human beings.
Trees and wild animals have natural fundamental rights to survive in their natural own habitat and
healthy environment.

Mr. Praveen Kumar apprised that in compliance of the judgment rendered by this Court, a sum of
Rs.662.00 crore has been released for setting up of Sewage Treatment Plants etc. He further
apprised the Court that a sum of Rs.200.00 crore has also been released for rejuvenation of River
Ganga as per the judgment of this Court. Thus, a total sum of Rs.882.00 crore has been released

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by the Union of India for the rejuvenation of River Ganga. He further apprised the Court that 18
Crematoriums are under construction and tender process for 10 Crematoriums has started and
construction of 40 Crematoriums is under pipeline.

Mr. Ishwar Singh, Legal Advisor, NAMAMI Gange has drawn the attention of the Court to the
Notification issued by the Government of India on 7.10.2016, whereby, the Ministry of Water
Resources, River Development and Ganga Rejuvenation has issued the River Ganga
(Rejuvenation, Protection and Management) Authorities Order, 2016.

Rivers and Lakes have intrinsic right not to be polluted. Polluting and damaging the rivers, forests,
lakes, water bodies, air and glaciers will be legally equivalent to harming, hurting and causing
injury to person.

Rivers, Forests, Lakes, Water Bodies, Air, Glaciers and Springs have a right to exist, persist,
maintain, sustain and regenerate their own vital ecology system. The rivers are not just water
bodies. These are scientifically and biologically living.

The rivers, forests, lakes, water bodies, air, glaciers, human life are unified and are indivisible
whole. The integrity of the rivers is required to be maintained from Glaciers to Ocean.
However, we would hasten to observe that the local inhabitants living on the banks of rivers, lakes
and whose lives are linked with rivers and lakes must have their voice too.

The rivers sustained the aquatic life. The flora and fauna are also dependent on the rivers.
Rivers are grasping for breath. We must recognize and bestow the Constitutional legal rights to
the 'Mother Earth'.

The very existence of the rivers, forests, lakes, water bodies, air and glaciers is at stake due to
global warming, climate change and pollution.

Trees are the buffer zone necessary to protect the glaciers from direct and indirect heat. One tree
sustains life of thousand of insects. Birds chirp and make their nests on the trees. Trees are mini-
reservoirs and have a capacity to store the water. The water stored by the trees is released slowly.
The Oak tree preserves about 75,000/- gallon of pure water. Plucking of one leaf, grass blade also
damages the environment universally.

The leading civilizations have vanished due to severe droughts. Water is elixir of life and we must
conserve and preserve every drop of water. The value of water should not be undermined only for
the reason that it is still available in plenty.

The past generations have handed over the 'Mother Earth' to us in its pristine glory and we are
morally bound to hand over the same Mother Earth to the next generation.
With the development of society where the interaction of individuals fell short to upsurge the social
development, the concept of juristic person was devised and created by human laws for the
purposes of the society. A juristic person, like any other natural person is in law also conferred
with rights and obligations and is dealt with in accordance with law. In other words, the entity acts
like a natural person but only through a designated person. For a bigger thrust of socio-political-

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scientific development, evolution of a fictional personality to be a juristic person becomes
inevitable. This may be any entity, living inanimate, objects or things. It may be a religious
institution or any such useful unit which may impel the Courts to recognise it. This recognition is
for 63 subserving the needs and faith of the society. All the persons have a constitutional and moral
responsibility to endeavour to avoid damage or injury to nature (in damno vitando). Any person
causing any injury and harm, intentionally or unintentionally to the Himalyas, Glaciers, rivers,
streams, rivulets, lakes, air, meadows, dales, jungles and forests is liable to be proceeded against
under the common law, penal laws, environmental laws and other statutory enactments governing
the field.

Corpus Juris Secundum, Vol.6, page 778 explains the concept of juristic persons/artificial persons
thus: "Artificial persons. Such as are created and devised by human laws for the purposes of society
and government, which are called corporations or bodies politic." A juristic person can be any
subject matter other than a human being to which the law attributes personality for good and
sufficient reasons. Juristic persons being the arbitrary creations of law, as many kinds of juristic
persons have been created by law as the society require for its development. (See Salmond on
Jurisprudence 12th Edition Pages 305 and 306). Thus, the Himalayan Mountain Ranges, Glaciers,
rivers, streams, rivulets, lakes, jungles, air, forests, meadows, dales, wetlands, grasslands and
springs are required to be declared as the legal entity/legal person/juristic person/ juridicial
person/moral person/artificial person for their survival, safety, sustenance and resurgence.
Miscellaneous Application (CLMA 2924/2017) By way of this application, it is stated by the
petitioner that despite the judgment of this Court, still beggars are found on the Ghats of Haridwar.

The District Magistrate, Haridwar is directed to ensure that the Beggars are not allowed to be
present on the Ghats. The application stands disposed of.

Accordingly, the following directions are issued: -

1. The Union of India is directed to complete the tender process of 10 Crematoriums within
eight weeks. Codal formalities for remaining 40 Crematoriums be also completed
within three months.

2. We, by invoking our parens patriae jurisdiction, declare the Glaciers including Gangotri &
Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands,
grasslands, springs and waterfalls, legal entity/ legal person/juristic person/juridicial person/ moral
person/artificial person having the status of a legal person, with all corresponding rights, duties
and liabilities of a living person, in order to preserve and conserve them. They are also accorded
the rights akin to fundamental rights/ legal rights.

3. The Chief Secretary, State of Uttarakhand, Director NAMAMI Gange Project, Mr. Praveen
Kumar, Director (NMCG), Mr. Ishwar Singh, Legal Advisor, NAMAMI Gange Project, Advocate
General, State of Uttarakhand, Dr. Balram K. Gupta, Director (Academics), Chandigarh Judicial
Academy and Mr. M.C. Mehta, Senior Advocate, Hon. Supreme Court, are hereby declared the
persons in loco parentis as the human face to 65 protect, conserve and preserve all the Glaciers
including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles,

77
forests wetlands, grasslands, springs and waterfalls in the State of Uttarakhand. These Officers are
bound to uphold the status of these bodies and also to promote their health and well being.

4. The Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven
public representatives from all the cities, towns and villages of the State of Uttarakhand to give
representation to the communities living on the banks of rivers near lakes and glaciers.

5. The rights of these legal entities shall be equivalent to the rights of human beings and the
injury/harm caused to these bodies shall be treated as harm/injury caused to the human beings.

6. There shall be a direction to the respondent no.2 to strictly comply by the judgment dated
02.12.2016 and to ensure that the industries, hotels, Ashrams and other establishments, which are
discharging the sewerage in the rivers, are sealed.

7. Now, as far direction no.'A', issued vide judgment dated 02.12.2016, is concerned, the Union of
India is directed to reconcile the constitution of Inter-State Council under Article 263 of the
Constitution of India vis-à-vis the Statutory Authority created under Section 3 of the 66
Environment (Protection) Act, by making it Ganga specific, and the decision, to this effect, be
taken within six months instead of one month, as undertaken by Mr. Praveen Kumar, Director
(NMCG).
The Court appreciates the timely release of a sum of Rs.862.00 crores by the Union of India. The
Court also places on record its appreciation for the sincere concern shown by Ms. Uma Bharti,
Minister, Water Resources, River Development & Ganga Rejuvenation, Dr. Amarjit Singh,
Secretary, Ministry of Water Resources, River Development & Ganga Rejuvenation, Mr. U.P.
Singh, Director General (NMCG), Mr. Praveen Kumar, Director (NMCG) and Mr. Ishwar Singh,
Legal Advisor, NAMAMI Ganga Project for their untiring efforts made to save River Ganga in
particular and environment in general.

All pending applications stand disposed of in the above terms.

78
 Property in Daybhaga

nk;Hkkx dh vo/kkj.kk
- Prof. (Dr.) Shankar Kumar Mishra Department of
Dharmashatra mimansa SVDV BHU Varanasi Uttar Pradesh

nk; dk vFkZ ,oa Lo#i

/keZxzUFkksa esa foHkkT; oLrq dks nk; vFkok fjDFk dh laKk nh x;h gSA nk; rFkk fjDFk 'kCnksa dk
iz;ksx oSfnd dky ls pyk vk jgk gSA 1 vkpk;Z lk;.k nk; dk vFkZ olh;r ds #i esa djrs gSaA 2
rSfÙkjh; lafgrk ,oa czkã.k xzUFkksa esa ^nk;* iSr`d lEifÙk ;k dsoy lEifÙk ds vFkZ esa iz;qä gSA 3
fu?k.Vqdkj us foHkkftr gksus okyh iSr`d lEifÙk dks ^nk;* dgk gSA 4 vkpk;Z uhyd.B dk Hkh ;gh er
gSA mudk dFku gS fd ^nk;* og /ku gS tks foHkkftr gksrk gS vkSj mu yksxksa dks izkIr ugha gksrk] tks
iqu% la;qä gks tkrs gSaA 5 euqLe`fr ds izfl) Vhdkdkj es/kkfrfFk us vUo;kxr ;k oa’k ijaijkxr ls izkIr
/ku dks ^nk;* dgk gSA 6 c`gLifr dk er gS fd tks /ku firk iq=ksa dks nsrk gS og ^nk;* dgykrk gSA 7
vkpk;Z thewrokgu c`gLIkfr }kjk nh x;h mi;qZDr ifjHkk"kk ds mÙkjk)Z dk leFkZu djrs gq, dgrs gSa fd
^nh;rs* ;g nwljh O;qRifÙk gh mi;qDr gS rFkk ^nnkfr* ;g igyh O;qRifÙk xkS.k gSA 8 fe=feJ nk; 'kCn
dks ;kSfxd u ekudj #<+ 'kCn Lohdkj djrs gSaA9 ikoVs egksn; us fe=feJ ds vk/kkj ij nk; 'kCn dk
ewy] foLr`r djus dk vFkZ crkus okyh] ,d nzfoM+ /kkrq Lohdkj fd;k gSA 10 bl lEcU/k esa fo}kuksa dk
er gS fd nkukFkZd ^nk* /kkrq ls nk; dk bruk ?kfu"V lEcU/k gS fd fe=feJ ds rdZ ds vk/kkj ij mls
#<+ ekuuk rFkk ikoVs dh dYiuk ds vuqlkj mls nzfoM+ 'kCn Lohdkj djuk leqfpr izrhr ugha gksrkA

vusd fo}kuksa }kjk nh x;h ^nk;* 'kCn dh O;k[;k ds vk/kkj ij fu"d"kZr% ;g dgk tk ldrk
gS fd LFkkoj ,oa txe lEifÙk tks ekrk&firk ds }kjk dqy&ijEijk ls pyh vk jgh gS] mldk iq=ksa esa

1
& _-] 2@132@14 ,oa _-] 3@31@2
2
& _-] 10@114@10
3
& d& euq% iq=sH;ks nk;a O;Hktr~A rS- la-] 3@1@9@4
[k& rRekTT;s"Ba iq=a /kusu fujolk;;fUrA rS- la-] 2@5@2@7
x& rLek|% iq=k.kka nk;a /kuref;oksiSfr ra eU;Urs ;esosna Hkfo";rhfrA rk-czk-] 16@4@3&4
4
& foHkDrO;a fir`nzO;a nk;ekgqeuZ hf"k.k%A fu?k.Vq] Le`- pa-] 2@255
5
& vlaLk`"VfoHkktuh;a /kua nk;%A O;-e- i`- 93
6
& euq-] 9@103
7
& nnkfr nh;rs] fi=k iq=sH;% LoL; ;)ue~A rn~ nk;e~A c`g- Le`-] 26@1 ,oa l0fo0 i`0 344
8
& nh;rs bfr O;qRiÙ;k nk; 'kCnks nnkfr iz;ksx’p xkS.k% e`r izozftrkfn LoRofuo`fÙkiwoZdijLoRoksifÙk&QylkE;kr~] u rq r= e`rknhuka R;kxks·fLrA
rr’p iwoZLokfelEcU/kk/khua rRlokE;ksijes ;= nzO;s LokE;a r= fu#<ks nk; 'kCn%A nk;Hkkx] 1@4&5
9
& fe=feJLrq thewrokgu era fujkdqoZu~ dFk;fr ^^LoRoL; ykSfddRokr~ tUer ,o yksds iq=knhuka LoRoa LohfØ;rsA**A
nk-l-] i`- 4] nz"VO; O;- iz-] i`0 412
10
& ikoVs d`r nk;HkkxA

79
c¡Vokjk ^nk;Hkkx* dgykrk gSA ^nk;Hkkx* dk okLrfod vFkZ gS & lEcfU/k;ksa ¼firk] firkeg vkfn½ ds /ku
dk lEcfU/k;ksa ¼iq=ksa] ikS=ksa vkfn½ esa foHkkftr gksuk bldk dkj.k gS] e`r Lokeh ls mudk lEcU/kA blds
vfrfjä ekrk ds /ku dk foHkktu Hkh ^nk;Hkkx* ds vUrxZr gh j[kk x;k gSA nk; 'kCn ^nk* /kkrq ls
fu"ié gS] fdUrq blds vFkZ esa ijEijk fufgr gSA ^nk;* esa e`r O;fDr fdlh vU; dk LokfeRo mRié
djus ds fy, viuk LokfeRo ugha NksM+rk] fdUrq blesa oLrq ds LokfeRo dk R;kx jgrk gSA

mi;qZDr foospu ls Li"V gS fd izkphu fgUnw xzUFkksa esa la;qDr lEifÙk ds fy, ^fjDFk* ,oa ^nk;*
'kCn dk iz;ksx gqvk gSA ^nk;* vFkok ^fjDFk* ¼lEifÙk½ rFkk ^nk;Hkkx* vFkok ^fjDFkgj.k*
¼lEifÙk&foHkktu½ dh foospuk djus okys izeq[k xzUFkksa esa foKkus’oj d`r ferk{kjk ¼;kKoYD; Le`fr ij
vk/kkfjr½ ,oa thewrokgu iz.khr nk;Hkkx mYys[kuh; xzUFk gSA fiNys yxHkx ,d lgL= o"kksZa ls fgUnw
ifjokjksa esa iSr`d lEifÙk dk foHkktu bUgha nks xzUFkksa ds vk/kkj ij gksrk vk jgk gSA vFkkZr~ iSr`d lEifÙk
esa vf/kdkjksa dh n`f"V ls lEiw.kZ Hkkjr ferk{kjk ,oa nk;Hkkx bu nks iz/kku lEiznk;ksa esa foHkDr gSA caxky
vkSj vklke esa nk;Hkkx rFkk 'ks"k Hkkjr esa ferk{kjk izkekf.kd xzUFk ekuk tkrk gSA vk/kqfud dky esa
caxky ds dqN {ks=ksa esa Hkh ferk{kjk ds gh dkuwu ekU; gSa] ftu fo"k;ksa ij nk;Hkkx ewd gSA rkRi;Z ;g gS
fd ferk{kjk i)fr dk bruk loksZifj izkcY; gS fd caxky vkSj vklke esa nk;Hkkx ds vof.kZr fo"k;ksa ij
ferk{kjk ds fu;eksa dks gh izeq[krk nh x;h gSA

ferk{kjk foKkus’oj jfpr ;kKoYD;Le`fr dh Vhdk gh ugha] vfirq leLr Le`fr;ksa dk lkjxzUFk
Hkh gSA ferk{kjk ds leFkZd xzUFkksa esa ohjfe=ksn;] fooknjRukdj] fooknpUnz] fooknfpUrkef.k] O;ogkje;w[k
fu.kZ;flU/kq] Le`frpfUnzdk] O;ogkjfu.kZ;] ijk’kjek/koh; ,oa ljLorhfoykl izeq[k xzUFk gSaA nk;Hkkx ds
leFkZd xzUFk nk;rÙo rFkk nk;Øelaxzg gSaA bUgha xzUFkksa ds vk/kkj ij ns’k ds fofHké Hkkxksa esa nk; dk
mÙkjkf/kdkj Øe fuf’pr fd;k tkrk gSA

ferk{kjk ,oa nk;Hkkx lEiznk;ksa esa ekSfyd erHksn bl iz’u ij gS fd iSr`d LkEifÙk ij iq= dk
LoRo fdl izdkj mRié gksrk gSA ferk{kjk ds vuqlkj tUe ysrs gh iq= dk iSr`d lEifÙk esa LoRo mRié
gks tkrk gSA vr% ;g er ^tUeLoRookn* dgykrk gSA fdUrq nk;Hkkx ds vuqlkj iq= dk ;g LoRo firk
dh e`R;q ds mijkUr gh mRié gksrk gS] vr% ;g er ^mijeLoRookn* dgykrk gSA bu nksuksa fl)kUrksa esa
ijLij fojks/k dk dkj.k buds }kjk izLrqr dh x;h ^nk;* 'kCn dh i`Fkd~ O;k[;k gh gSA

80
 ferk{kjk ds vuqlkj nk; og lEifÙk gS] ftl ij mlds Lokeh ds lkFk lEcU/k gksus ls gh
lEcfU/kr O;fDr dk LokfeRo LFkkfir gks tkrk gSA11 firk dh lEifÙk ij iq= dk LokfeRo mlds tUe ds
dkj.k firk ds lkFk lEcU/k gksus ls gSA vr% iSr`d lEifÙk ij iq= dk LoRo tUe ls gh gksrk gSA ;gka
iwoZ Lokeh ls lEcU/k gksus ds dkj.k /ku dh izkfIr ls Hkze mRié gksrk gS D;ksafd ;g lEcU/k fdlh ls Hkh
gks ldrk gSA ;fn dksbZ oLrq Ø; dh tkrh gS rks ogka Hkh Øsrk vkSj foØsrk dk lEcU/k gksrk gS] ijUrq
;g vk{ksi ;qfDr laxr ugha gS D;ksafd bl lEcU/k ds vfrfjDr ;gka Ø;drkZ iwoZ Lokeh vFkkZr~ foØsrk
dks oLrq dk ewY; iznku djrk gSA nk; esa ewY; ugha fn;k tkrk] dsoy lEcU/k ls gh LokfeRo dh
mRifÙk gksrh gSA vr% mi;qZä dFku esa fNis gq, 'kCn ^bo* ¼lEcU/k ek=½ ij /;ku nsuk vko’;d gS tks
;g Li"V djrk gS fd nk; ds vUrxZr izkIr gksus okyk /ku lEcU/k ek= ds dkj.k gh iwoZ Lokeh ls izkIr
gksrk gSA12

nk;Hkkx dk er gS fd iwoZ Lokeh ds lkFk lEcU/k gksus ds dkj.k mlds ejus ij ftl lEifÙk esa
LoRo izkIr gksrk gS] ml lEifÙk ds fy, nk; 'kCn #<+ gSA 13 os nk; 'kCn dh nkukFkZd ^nk* /kkrq ls
ekurs gq, bl izdkj ifjHkkf"kr djrs gSa & ^tks fn;k tk;] og nk; ¼nku½ gSA* 14 bl izdkj nku eas nks
ckrsa ,d lkFk ik;h tkrh gSa & nkrk ds LoRo dh fuo``fÙk rFkk xzg.kdrkZ ds LoRo dh mRifÙkA izFke ds
vHkko esa nwljs dk l`tu ugha gks ldrk gSA vr% tc rd firk thfor gS vkSj nk; ls mlds LoRo dh
fuo`fÙk ugha gksrh] rc rd ml lEifÙk ij iq= ds LoRo dh mRifÙk dSls gks ldrh gS \ ;g firk dh
e`R;q gksus ij gh lEcHko gSA bl izdkj thewrokgu us firk dh e`R;q ds mijkUr gh nk; ij iq= dk
LokE;kf/kdkj Lohdkj fd;k gSA15

ferk{kjk lEiznk; eas nk; ;ksX; lEifÙk dks nks Hkkxksa esa foHkkftr fd;k x;k gS & 1- vizfrcU/k
nk; vkSj 2- LkizfrcU/k nk;A16

vçfrcU/k nk;

vizfrcU/knk; og gS ftlesa O;fDr dqy esa tUe ysus ek= ls gh oa’kijEijk ls vkxr iSrd
`
lEifÙk dks vius lEcU/k }kjk izkIr dj ysrk gSA vFkkZr~ iq=] ikS= ,oa izikS= vius lEcU/k ls gh vius
11
& r= nk; 'kCnsu ;)ua LokfelEcU/kknso fufeÙkknU;L; Loa Hkofr rnqP;rsA ;kK0Le`0] 2@114 dh vorfj.kdkA
12
& vlgk;foKku;ksfxizHk`rhukUrq ;r~ LokfelEcU/kknso fufeÙkknU;L; Loa Hkofr rn~ nk; 'kCnsuksP;rs bfr ré lgUrs Hkk#fp mijkdZizHk`r;%--A
Lk-fo-] i`0 347 rFkk vkbZ- ,l- ikoVs d`r nk;Hkkx] v/;k; 11] i`- 9&90
13
& rr’p iwoZLokfelEcU/kk/khua rRLokE;ksijes ;= nzO;s LoRoa r=fu#<+ks nk; 'kCn%A nk-Hkk-] 1@3&4
14
& nk;Hkkx] 1@4&5
15
& fg0 i0 eh0] i`0 291] ia0 9&11
16
& l p f}fo/k% & vizfrcU/k%] lizfrcU/k’pA r= iq=k.kka ikS=k.kka p iq=Rosu ikS=Rosu p fir`/kua firkeg/kua p Loa HkorhR;izfrcU/kks nk;%A
fir`O;Hkzk=knhuka rq iq=kHkkos LokE;Hkkos] ferk{kjk] ;kK- Le`- 2@113

81
firk] firkeg ,oa izfirkeg dh lEifÙk dks oa’k ijEijk ds vuqlkj izkIr dj ysrs gSaA bles firk ;k
firkeg dh mifLFkfr ls iq=ksa ,oa ikS=ksa dh dqy lEifÙk ds izfr vfHk#fp esa dksbZ izfrcU/k ugha yxrk]
D;ksafd os mlh dqy esa mRié gq, jgrs gSaA firk ,oa firkeg dh thforkoLFkk nk;ka’k&xzg.k esa fdlh
izdkj ls ck/kd u gksus ds dkj.k gh ;g ^vizfrcU/k nk;* dgykrk gSA bls gh ^leka’kh nk;* Hkh dgrs
gSaA

lizfrcU/k nk; (Coparcenary Property)

tc fdlh O;fDr dks mlds pkpk] HkkbZ] Hkrhtk] ekek] ukuk vkfn dh lEifÙk izkIr gksrh gS] rks
og ^lizfrcU/k nk;* dgykrh gS] D;ksafd ;g lEifÙk ml O;fDr dks mu O;fDr;ksa vFkok muds vU;
mÙkjkf/kdkfj;ksa ds vHkko esa gh izkIr gksrh gSA mnkgj.kLo#i ;fn dksbZ O;fDr vius larkughu pkpk ds
e`r gks tkus ij vFkok dksbZ firk vius larkughu iq= ds e`r gks tkus ij lEifÙk izkIr djrk gS rks og
lizfrcU/k nk; dgk tkrk gS] D;ksafd bu ifjfLFkfr;ksa esa Hkrhtk ;k firk Øe ls vius pkpk ;k iq= dh
lEifÙk ij rc rd LokfeRo ugha izkIr dj ikrk] tc rd fd pkpk ;k iq= vFkok ml iq= ds iq= ,oa
ikS= thfor jgrs gSaA Li"V gS fd bu O;fDr;ksa dh mifLFkfr Hkrhts ,oa firk ds nk;ka’k&xzg.k esa
izfrcU/kd gSaA vr% ;g lizfrcU/k nk; gSA ;gk¡ ;g mYys[kuh; gS fd bl izdkj dh lEifÙk ml O;fDr
dh viuh i`Fkd~ lEifÙk gksrh gS] ftlds ;FksPN fofu;ksx dk mls iw.kZ vf/kdkj gksrk gS vkSj bldk
foHkkx Hkh leka’kh lEifÙk ls fHké gksrk gSA

bl izdkj ferk{kjk lEiznk; ^vizfrcU/k* ,oa ^lizfrcU/k* bu nks #iksa esa ^nk;* dk mYys[k djrk
gS] fdUrq nk;Hkkx lEiznk; us mi;ZqZDr nk; ds f}fo/k #iksa dks u Lohdkjrs gq, lHkh izdkj ds nk; dks
^lizfrcU/k* dgk gSA bl lEiznk; ds vuqlkj iwoZ Lokeh ds u jgus ¼e`r] ifrr vFkok laU;klh gks tkus½
ij gh nk; fdlh vU; O;fDr dks izkIr gksrk gSA vr% nk;Hkkx lEiznk; dk fl)kUr ^mijeLoRookn*
¼e`R;q ds mijkUr gh LokfeRo dh mRifÙk½ dgykrk gSA blds foijhr tUe ysrs gh iq= dk iSr`d lEifÙk
esa LoRo mRié gks tkus ds dkj.k ferk{kjk lEiznk; dk fl)kUr ^tUeLoRookn* ds uke ls tkuk tkrk
gSA ;gh nk;Hkkx ,oa ferk{kjk esa izeq[k Hksn gSA

nk; pkgs fdlh O;fDr dks mlds Lokeh dh e`R;q ds mijkUr izkIr gks vFkok mlds thoudky es
gh izkIr gks] nksuksa gh voLFkkvksa esa og iSr`d lEifÙk ;k nk; gh gSA orZeku U;k;ky;ksa esa nk; ds Lo#i
dks bl izdkj Li"V fd;k x;k gS & vius firk] firkeg vkSj izfirkeg ls izkIr lEifÙk gh ^nk;* ;k

82
^iSr`d lEifÙk* gSA17 bu lEcfU/k;ksa ds vfrfjä vU; lEcfU/k;ksa ls izkIr nk; O;fDr dh ^i`Fkd~ lEifÙk*
gksrh gSA firk] firkeg vkfn ls mÙkjkf/kdkj esa ;fn dksbZ O;fDr lEifÙk izkIr djrk gS rks ml lEifÙk
ij mlds iq=] ikS= vkSj izikS= dk la;qDr LoRo gks tkrk gS] fdUrq tc dksbZ O;fDr vius pkpk] HkkbZ]
Hkrhtk] ekek] ukuk vkfn ls lEifÙk xzg.k djrk gS rks ml lEifÙk ij mldk i`Fkd~ LoRo gksrk gSA bl
a hA18
izdkj dh lEifÙk dks ^iSr`d lEifÙk* ;k nk; dh laKk ugha nh tk;sx

foHkkx dk vFkZ ,oa Lo#i &

la;qDr lEifÙk ds fdlh va’k ij oS;fÙkd LoRo dh mRifÙk foHkkx ¼cV¡okjs½ ls gksrh gSA foHkkx
dk lkekU; vFkZ gS ^fo’ks"k #i ls miHkksx*A foHkktu dh izfØ;k dk izkjEHk ewyr% oSfnd ;qx esa lEikfnr
;K dh fØ;kvksa }kjk gh gqvkA _Xosn esa ^Hkkx* 'kCn dh miyfC/k gksrh gS] ftldk vFkZ ;K esa fn;s
tkus okys nsorkvksa ds gfoHkkx ls gSA 19 ;g Hkkx muds ¼nsork fo’ks"k½ LoRo dks Li"V djrk gSA blds
vfrfjä _Xosn esa ^Hkx* uked nsork dh mifLFkfr ls foHkktu dk egRo izekf.kr fd;k x;k gS rFkk
mls foHkkx djus okyk dgk x;k gSA 20 vFkoZosn esa izk;% Hkx dks HkkX; ds nsork ds #i esa izLrqr fd;k
x;k gSA 21 tks foHkktu esa lEifÙk izkfIr dk ladsr nsrk gS] D;ksafd HkkX; dk vk/kkj /ku rFkk ,S’o;Z dh
izkfIr esa gh FkkA mÙkj oSfnd dky esa ^Hkkx* 'kCn nk; ;k lEifÙk ds foHkktu ds vFkZ esa iz;ksx gksus yxk
vkSj foHkktu dh izfØ;k ls lEcfU/kr fofHké fu;eksa dh x.kuk Hkh blesa gksus yxhA bl izdkj oSfnd
dky ls gh nk; dh izkfIr vkSj mlds foHkktu dk izpyu pyk vk jgk gSA

/keZ’kkL=dkj foKkus’oj us ^foHkkx* dk y{k.k bl izdkj izLrqr fd;k gS & ^^tgk¡ la;qä LokfeRo
gks ogk¡ lEiw.kZ lEifÙk ds Hkkxksa dh fuf’pr O;oLFkk gh ^foHkkx* gSA**22 fdUrq foKkus’oj ¼ferk{kjk½ }kjk
nh x;h foHkkx dh bl ifjHkk"kk esa nk;Hkkx dks dbZ nks"k n`f"Vxkspj gksrs gSaA vr% nk;Hkkx us foHkkx dks
fuEu izdkj ls ifjHkkf"kr fd;k gS & ^^;g fdlh fuf’pr HkwfeHkkx ;k /ku ij xksyh ;k <syk Qsadus ls
HkkX;o’k izkIr ¼cgqrksa esa ,d ds½ LokfeRo dk |ksrd gS] tks ¼LokfeRo½ dsoy ¼HkwfeHkkx ,oa /ku ds nk;

17
& d& eqgEen gqlSu d`r cEcbZ ykW fjiksV~lZ ] 1937
[k& bykgkckn dh bf.M;u ykW fjiksV~Zl] 250
x& jkeczkã.k d`ra bf.M;u ykW fjiksVZ~l] 1950
?k& enzkl dh bf.M;u ykW fjiksVZ~l] i`0 1084
p& dydÙkk bf.M;u ykW fjiksV~Zl] 1939
18
& d& enzkl dh bf.M;u ykW fjiksVZ~l] 863
[k& ykgkSj bf.M;u ykW fjiksVZ~l] 708
19
& d& dLrs Hkkx% fda o;ks nq/k f[k) iq#gwrA & _-] 6@22@4
[k& iztkH;% iqf"Va foHktUrA _] 2@13@4
20
& Hkxks foHkäk 'kolkolk xenq#O;pk vfnfr%A _- 5@46@6
21
& vFkoZ-] 3@16@2] f£Vuh] i`- 113
22
& foHkkxks uke nzO; leqnk;fo"k;k.kkeusd LokE;kuka rnsdns’ks"kq O;koRFkkiue~A & ;kK- Le`- 2@114 ij ferk-A

83
ds½ ,d va’k ls feydj mfnr gksrk gS] fdUrq tks vfuf’pr gS] D;ksfa d ¼fdlh O;fDr ds fy,½ nk; ds
fdlh fof’k"V va’k dks Li"V #i ls crkuk vlEHko gS] D;ksafd dkSu lk va’k fdldk gS] ;g dgus ds
fy, dksbZ fuf’pRk ckr Kkr ugha jgrhA**23

bl izdkj ferk{kjk ,oa nk;Hkkx }kjk nh x;h ifjHkk"kk,¡ fHké&fHké erksa dk izfriknu djrh gSaA
ferk{kjk ds vuqlkj la;qä ifjokj esa iSr`d lEifÙk ij lc lekaf’k;ksa dk lk>k LokfeRo jgrk gSA vFkkZr~
tc rd ifjokj la;qä jgrk gS rc rd LokfeRo dh ,drk jgrh gS vkSj fdlh Hkh nk;kn dks lEifÙk
ds fdlh fo’ks"k Hkkx dk LoRo ugha izkIr gksrkA vfHkizk; ;g gS fd dksbZ lgHkkxh ;g ugha dg ldrk gS
fd og fdlh fuf’pr Hkkx ;Fkk pkSFkkbZ ;k ik¡pos Hkkx dk Lokeh gSA D;ksafd va’kgj ;k lgHkkfx;ksa dk
va’k ;k fgr tUe ,oa e`R;q dh njksa ls ?kVrk&c<+rk jgrk gSA foHkktu ds mijkUr gh lgHkkxh ;k
va’kgj fdlh fuf’pr Hkkx ;k va’k ds vf/kdkjh gks ikrs gSaA

mifjof.kZr foHkktu ls iwoZ lgHkkfx;ksa esa LokfeRo la;qä #i ls mRié gks tkrk gS] ferk{kjk ds
bl er dk fujkdj.k djrs gq, nk;Hkkx us ;g LokfeRo mlds ¼nk; ds½ va’kksa esa mRié gksuk Lohdkj
fd;k gSA os foHkkx dk vFkZ LoRoksa ds i`FkD~dj.k dh O;oLFkk ugha ekurs] vfirq mls fo’ks"k #i ls fofHké
O;fDr;ksa ds LoRoksa dk izdVhdj.k le>rs gSaA muds erkuqlkj tgk¡ fo’ks"k #i ls LoRoksa dh O;oLFkk u
gks ogk¡ xqfVdkikB ¼ykVjh Mkyuk½ }kjk LoRoksa dh vfHkO;fä gh ^foHkkx* gSA rkRi;Z ;g gS fd la;qä
dqVqEc esa foHkkx ls iwoZ fdlh O;fDr dk lEiw.kZ la;qä lEifÙk ij lkewfgd LokfeRo ugha jgrk] vr%
mlesa dksbZ lk>snkjh vFkok lekaf’krk ugha gks ldrhA ogk¡ firk dh e`R;q ds mijkUr gh iq= viuk
fuf’pr Hkkx ys ldrs gSaA lfEefyr jgus dh n’kk esa la;qä lEifÙk ij izR;sd O;fDr dk la;qä
vf/kdkj gS] ijUrq la;qä LokfeRo ughaA bl izdkj ferk{kjk lEiznk; esa iSr`d lEifÙk esa lekaf’krk dk
LoRo tUe ls mRié gksrk gS vkSj nk;Hkkx lEiznk; esa e`R;q ds }kjkA

nk;Hkkx }kjk nh x;h mi;qZä foHkkx dh ifjHkk"kk esa vkifÙk izdV djrs gq, vkpk;Z j?kquUnu
dgrs gSa fd ;fn foHkkx ls iwoZ leku va’kHkkfx;ksa dk la;qä lEifÙk ds fdlh ,d fgLls ij vf/kdkj Fkk
rks bldk D;k Hkjkslk gS fd ykVjh mls ogh fgLlk nsxh] tks mldk igys ls FkkA bl izdkj
tUeLoRookn ds fo"k; es nk;rÙo dk ferk{kjk ls erHksn gksus ij Hkh ^foHkkx* dh ifjHkk"kk esa nksuksa ,d
er gSaA

23
& uuq fda nk;L; foHkkxks foHkäko;oRoa] ;}k nk;su lg foHkkxks vla;qäRoa] u rkor~ iwoZ%] nk; fouk’kkirs%A ukfi f}rh;% la;qäs·fi u eesna
foHkäa Loa Hkzkrqfjnfefr iz;ksxkr~A ,dns’kksiÙkL;So Hkwfgj.;knkoqRiéL; LoRoL; fofuxeukizek.kkHkkos% oS’ksf"kdO;oogkjkugZr;k vO;ofLFkrL;
xqfVdkikrkfnuk O;atua foHkkx%A fo’ks"ks.k Hktua LoRoKkiua ok foHkkx%A & nk;Hkkx] i`- 8

84
 foHkktu ds nks vFkZ gSa & 1- uki&rkSy ,oa lhek ds fu/kkZj.k ls foHkktu] ,oa 2- fgr ds i`FkdRo
;k vyxko }kjk foHkktuA ferk{kjk us bu nksuksa gh vFkksZa esa foHkktu Lohdkj fd;k gSA lekaf’krk
¼lgHkkfxrk½ ds lnL; fdlh Hkh {k.k vius va’kks ds vf/kdkjksa dk fuiVkjk dj ldrs gSa] fdUrq uki&rkSy
vkfn ds }kjk lEifÙk dk foHkktu vkxs ds le; ds fy, LFkfxr fd;k tk ldrk gS vkSj rc rd os
igys dh Hkk¡fr gh ,d lkFk lEifÙk dk miHkksx dj ldrs gSaA24

nk;Hkkx us mi;qZä izFke foHkktu ¼uki&rkSy ,oa lhek ds fu/kkZj.k ls foHkktu½ ds vFkZ dks gh
Lohdkj fd;k gS] D;ksafd buds erkuqlkj iwoZ Lokeh dh e`R;q ds mijkUr gh mÙkjkf/kdkj vkjEHk gksrk gS
vkSj fuf’pr Hkkx fu/kkZfjr gksrs gSaA

foHkktu ds lEcU/k esa euq ,oa ;kKoYD; dk ;g Hkh er gS fd ;fn ifjokj dk dksbZ lnL;
viuk thou fuokZg djus esa Lo;a leFkZ gS vkSj ifjokj dh lEifÙk dk dksbZ Hkkx ugha pkgrk] rks mls
dksbZ lk/kkj.k oLrq fpUg ds #i esa nsdj vyx fd;k tk ldrk gSA ferk{kjk us ;gk¡ ;g Hkh tksM+ fn;k
gS fd ;g fpUg mls blfy, fn;k tkrk gS fd mlds iq= vkxs pydj viuk vf/kdkj u trkus yxsA25

nk; foHkktu ds Lo#i Li"Vhdj.k esa LoRo dk mYys[k gqvk gSA LoRo dk nk; ,oa foHkktu ls
vfHké LkEcU/k gSA vr% 'kkL=dkjksa us LoRo dks ^mÙkjkf/kdkj* ds vFkZ esa iz;qDr fd;k gS] D;ksafd fdlh
oLrq dk foHkktu rHkh lEHko gS tc ml oLrq esa ml O;fDr dk LoRo vFkok vf/kdkj gks vFkkZr~ O;fDr
ds Lokeh gksus esa ml oLrq dk LoRo ewydkjd gksrk gSA rkRi;Z ;g gS fd fdlh oLrq dk LokfeRo ml
O;fDr ds LoRo (Property) dh vksj ladsr djrk gS] ftlds fu;U=.k es og oLrq gksrh gSA bl izdkj
nk; ds foHkktu esa LoRo vkSj LokfeRo dh Hkkouk fufgr gSA LoRo oLrq esa rFkk LokfeRo O;fDr esa
fufgr gksrk gSA LoRo dk lkekU; vFkZ gS & tks fdlh dk gS vFkkZr~ lEifÙk] ,oa LokfeRo (Ownership)
dk vFkZ gS & vf/kdkjhA nksuksa ewyr% ,d gSa vFkkZr~ ,d gh vfHké #i ds nks fHké #i gSa] tks vius iz;ksx
ds }kjk ,d nwljs ds vfLrRo dk ¼Øe’k% oLrq vkSj O;fDr dk½ cks/k djkrs gSa vkSj ftudk lEcU/k
vU;ksU;kfJr gSA fo}kuksa us bls ^fu#I; fu#idHkko* ds #i esa Lohdkj fd;k gSA

LoRo ds fo"k; esa 'kkL=dkjksa us fHké&fHké erksa dk izfriknu fd;k gSA dqN fo}kuksa us LoRo dk
vFkZ 'kkL=ksa ds vk/kkj ij rFkk dqN us bls lkekU; ykSfdd vFkZ esa iz;qä fd;k gS] fdUrq bu fo}kuksa ds
erksa dk mYys[k djus ls iwoZ ;gk¡ LoRo dh O;k[;k vko’;d gSA

24
& O;- e-] i`- 14 ,oa l-fo-] i`- 347
25
& d& Hkzkr`.kka ;Lrq usgsr /kua 'kä% LodeZ.kkA l fuHkkZT;% Lodkna’kkfRdafpíRoksithoue~AA & euq - 9@207
[k& 'käL;kuhgekuL; fdafpn~ nÙok i`Fkd~fØ;k & ;kK- Le`- 2@116

85
LoRo dk vFkZ ,oa Lo#i

nk;Hkkx ds Vhdkdkj Jhd`".krdkZyadkj us ^LoRo* dks ifjHkkf"kr djrs gq, dgk gS fd ^;FksPN
fofu;ksxkgZRosu 'kkL=cksf/kr Rofer izk_p%* 26 vFkkZr~ LoRo og gS tks fd 1- 'kkL=kuqeksfnr gks] rFkk 2-
ftlds ;FksPN fofu;ksx dk vf/kdkj mlds Lokeh dks izkIr gksA Jhd`".krdkZyd
a kj }kjk izLrqr ^LoRo* dh
bl O;k[;k ij Vhdkdkjksa vkSj fucU/kdkjksa esa i;kZIr erHksn gSA

^LoRo rFkk LokfeRo 'kkL=lEer gksuk pkfg,* & Jhd`".krdkZyadkj dh bl izFke ekU;rk dk
/kkjs’oj] thewrokgu ,oa muds vuq;kf;;ksa us leFkZu fd;k gS] tcfd foKkus’oj vkSj muds vuq;kf;;ksa
us blds foijhr LoRo dk 'kkL=kuqeksfnr gksuk vko’;d ugha ekuk gSA mudk er gS fd LokfeRo dks
yksd ekU;rkvksa ij vk/kkfjr gksuk pkfg,] 'kkL= dk dk;Z rks dsoy bl izdkj dh ekU;rkvksa dks
izfrfcfEcr djuk gSA foKkus’oj rFkk muds leFkZdksa dh bl ekU;rk dks ^ykSfdd LoRookn* dh laKk nh
x;h gS] ijUrq LokfeRo dks izdV djus okys vusd ,sls Hkh izdkj gSa tks fd 'kkL=lEer Hkh gSa vkSj
yksdekU; HkhA bl lEcU/k es foKkus’oj ,oa fe=feJ dk dFku gS fd 'kkL=ksa us yksdekU;rkvksa dks
vk/kkj cukdj mUgsa iznf’kZr fd;k gS fdUrq thewrokgu vkSj /kkjs’oj ds erkuqlkj yksdekU;rk,a gh
'kkL=opuksa ij voyfEcr gSaA

ohjfe=ksn; us ,d n`"VkUr ds ek/;e ls LoRo ds 'kkL=lEer gksus dk izlax Li"V fd;k gSA os
mnkgj.k nsrs gq, dgrs gSa fd ;fn 'kkL= ;g fo/kku djrk gS fd euq"; dks fdlh fuf’pr fn’kk ;Fkk
iwoZ fn’kk dh vksj eq[k djds gh Hkkstu djuk pkfg, vkSj dksbZ O;fDr bl fo/kku ds foijhr if’pe
vFkok fdlh vU; fn’kk dh vksj eq[k djds Hkkstu djrk gS rks bldk ;g vFkZ dnkfi ugha gS fd og
O;fDr Hkkstu ds ;Fks"V Lokn ls oafpr jg tkrk gS vFkok ml Hkkstu ls mldh {kq/kk’kkafr ugha gksrhA
vfirq bldk vk’k; ek= bruk gh gS fd 'kkL=kuqeksfnr fof/k ls Hkkstu u djus ls og O;fDr ok_fNr
dY;k.k dh QyizkfIr ls oafpr jg ldrk gS] fdUrq ftl mís’; ¼Lokn ;k {kq/kk’kkfUr½ dks ysdj Hkkstu
fd;k tkrk gS] mldh iwfrZ rks gks gh tkrh gSA blh izdkj tc 'kkL= ;g fo/kku djrs gSa fd veqd jhfr
ls miØe djus ij gh LoRo dh izkfIr gksrh gS rks bldk vfHkizk; ;g dnkfi ugha gS fd blds foijhr
miØe djus ij LoRo dh izkfIr gks gh ugha ldrh vFkok bl izdkj dk LoRo 'kkL=lEer u gksus ds
dkj.k voS/k gks tk;sxkA bldk vfHkizk; ek= bruk gh gS fd 'kkL=opuksa dk mYya?ku vuqfpr gS vkSj
tgk¡ rd gks lds bldk mYYka?ku ugha djuk pkfg,A vU; 'kCnksa es] dgus dk vfHkizk; ;g gS fd LoRo
dk l`tu 'kkL=opuksa ls gh ugha gksrk] 'kkL= bl lUnHkZ esa LoRo&iz.ksrk ugha] vfirq va’kr%
26
& nk;Hkkx] 1@5 ij Jhd`".k dh VhdkA

86
n`"VkUr&n’kZd (illustrative) vkSj va’kr% fu;ked (regulative) gksrs gSaA 27 vr% Li"V gS fd LoRo ds
lEcU/k esa vfyf[kr yksd ekU;rkvksa dk izpyu igys gqvk vkSj fyf[kr 'kkL=ksa dk izfriknu ckn esaA
bl izdkj bu yksd ekU;rkvksa dks 'kkL=ksa us vf/kd foLr`r vkSj Li"V cuk fn;kA

Jhd`".krdkZyadkj us LoRo dh O;k[;k esa ^;FksPN fofu;ksx dh LorU=rk* dks LoRo dk nwljk
egRoiw.kZ i{k Lohdkj fd;k gSA muds erkuqlkj ^LoRo* rHkh iw.kZ ekuk tk;sxk] tcfd og Lokeh }kjk
;FksPN fofu;ksx ds mi;qDr gksA ;g lR; gS fd lkekU; O;ogkj esa Lokeh vius LoRo dk fou;ksx
euksuqdwy #i ls ugha dj ldrkA bl lEcU/k esa og jkT;uhfr;ksa vFkok 'kkL=opuksa }kjk fnXnf’kZr
gksrk gS] ijUrq ;fn og jkT;uhfr;ksa vFkok 'kkL=opuksa dk mYya?ku djds vius LoRo dk fofu;ksx
viuh bPNkuqlkj djs rks bldk rkRi;Z ;g ugha gS fd mldk LoRo gh voS/k gSA ,slh n’kk esa
'kkL=opuksa dh vogsyuk gksu ij LoRo dk fofu;ksx vuqfpr ekuk tk ldrk gS u fd Lo;a LoRoA
ohjfe=ksn; dk Hkh ;gh er gS fd LoRo ds fofu;ksx esa 'kkL=opuksa dk vfrØe.k gksus ij Lokeh bl
vfrØe.k ds QYk dk Hkkxh gks ldrk gS] fdUrq blls LoRo ds ;FksPN fofu;ksx ds mlds vf/kdkj ij
dksbZ izHkko ugha iM+rkA LoRo 'kCn dk vFkZ gh ^;FksPN fofu;ksx dk vf/kdkj* gSA bl lEcU/k esa
ohjfe=ksn; dk dFku gS fd ftl izdkj fdlh cht esa mlds isM+ rFkk Qy ds xq.k fo|eku gksrs gSa]
mlh izdkj LoRo esa mlds ;FksPN fofu;ksx dk vf/kdkj fufgr gksrk gSA ;g rF; thewrokgu ds bl
dFku }kjk vkSj Hkh Li"V gks tkrk gS fd ^lSdM+ks xzUFk (texts) ,d lR; dk fodYi ugha cu ldrsA*
vius bl dFku dks Li"V djrs gq, thewrokgu dgrs gSa fd firk lEifÙk dk iw.kZ Lokeh gksrk gS] iq=
mldh larku gksus ds dkj.k mlds LokfeRo esa Hkkxhnkj ugha gks ldrk] fdUrq vusd ,sls xzUFk gSa tks ;g
fo/kku djrs gSa fd firk dqN oLrqvksa dk miHkksx vFkok fofu;ksx vius iq=ksa dh lgefr ds fcuk ugha
dj ldrk] ijUrq ;s fu"ks/k firk ds LoRo dks izHkkfor ugha djrsA og budk vfrØe.k dj ldrk gS]
D;ksafd LoRo esa fofu;ksx dk vf/kdkj fufgr gksrk gSA ik’pkR; fo}kuksa us Hkh LoRo esa vUrfuZfgr ;FksPN
fofu;ksx ds vf/kdkj dks Lohdkj fd;k gSA mi;qZDr ;FksPN fofu;ksx ds fy, LorU= LoRo ds vfrfjDr
fgUnw 'kkL=ksa esa ,sls LoRo dk Hkh mYys[k gqvk gS] ftlds ;FksPN fofu;ksx dk vf/kdkj mlds Lokeh dks
ugha gksrkA buesa izFke izdkj ds LoRo dks ^vizfrcU/knk;* rFkk f}rh; izdkj ds LoRo dks ^lizfrcU/knk;*
dh laKk nh x;h gSA vr% Li"V gS fd ;FksPN fofu;ksx dh LorU=rk u gksus ij Hkh LoRo mifLFkr
jgrk gSA

27
& nk;Hkkx 1@5 ij Jhd`".k dh Vhdk] i`- 45

87
 lw=dkj xkSre us LoRo dks 'kkL=kuqeksfnr ekuk gSA muds }kjk iz;qDr fjDFk 'kCn dk vFkZ &
^nk;* ,oa lafoHkkx dk vFkZ & ^nk; dk foHkktu* gS] tks nk; ds fdlh Hkkx ij fdlh O;fDr dk loZFkk
i`Fkd~ LoRo LFkkfir djrk gSA vfHkizk; ;g gS fd tc dksbZ O;fDr e`r gks tkrk gS rks mldh lEifÙk
nk; gks tkrh gS ftls cgqr ls O;fDr izkIr dj ldrs gSaA bl #i esa og lEifÙk la;qä lEifÙk gks tkrh
gSA vr% mldk LokfeRo] la;qä gksus ds dkj.k fjDFk dgykrk gSA la;qä LokfeRo ds vf/kdkjh foHkktu
}kjk nk; ds fuf’pr Hkkxksa ds i`Fkd~&i`Fkd~ Lokeh gks tkrs gSaA bl izdkj foHkktu LoRo dk ,d lk/ku
gS] fdUrq tc vf/kdkjh dsoy ,d gh O;fDr gksrk gS rks ogk¡ lafoHkkx ¼foHkktu½ ugha gksrk vkSj ogk¡
LokfeRo dk lk/ku fjDFk gh gks tkrk gS u fd lafoHkkxA tc vf/kdkjh dbZ gksrs gSa rks bl n`f"Vdks.k ls
fjDFk dsoy la;qä LokfeRo dk lk/ku gks tkrk gSA ;gk¡ ;g dgk tk ldrk gS fd thewrokgu ds
vuqeku ds vk/kkj ij fjDFk ,oa lafoHkkx ,d&nwljs ls fey ls tkrs gSa vkSj Hkyh izdkj ls muesa og
vUrj ugha fd;k tk ldrk gS] ftls ferk{kjk us vius fl)kUr }kjk O;Dr fd;k gSA bl izdkj nk;Hkkx
ds dFkukuqlkj xkSre us tUe dks LokfeRo ds lk/ku ds #i esa Li"V #i ls xzg.k ugha fd;k gSA

ferk{kjk rFkk mlds vuq;kf;;ksa us LoRo dk vFkZ 'kkL= ds vk/kkj ij u ysdj lkekU; iz;ksx ds
vFkZ esa fy;k gSA os vusd rdZ nsrs gq, dgrs gSa fd xkSre us yksd esa izpfyr LokfeRo ds mn~xeksa ds
,d fuf’pr fefJr fu;e dk fu#i.k dj LokfeRo lk/kuksa ds dfri; dkj.kksa ;k lk/kuksa dks ek=
nksgjk;k gSA mudk ;g Hkh er gS fd fjDFk ,oa lafoHkkx] tks xkSre ds lw= esa ik;s tkrs gSa] os Øe’k%
vizfrcU/k nk; ,oa lizfrcU/knk; gSaA28

Åij of.kZr fd;s x;s LoRo ¼LokfeRo½ dh ehekalk djus ij ,d uohu rF; dh mRifÙk gksrh gS
fd D;k LokfeRo ¼LoRo½ dk mn~Hko foHkktu ls gksrk gS vFkok O;fDr ds tUe }kjk \ oLrqr% ;g fo"k;
izkphudky ls gh fooknkLin jgk gS fdUrq bl fo"k; esa lHkh 'kkL=dkj ,d er gSa fd iq=ksas] ikS=ksa ,oa
izikS=ksa ds vfrfjDr vU; O;fDr dk vius lEcfU/k;ksa dh lEifÙk ij tUe ls vf/kdkj ugha gksrkA

28
& ferk{kjk] ijk’kjek/koh;] 3] i`- 481 ,oa ljLorhfoykl] i`0 402

10

88
 Course Wise Content Details for LL.B. Programme:
NYAYASHASTRA
Semester-V
- Prof. Madhav Janardan Ratate,
Course Name-Jurisprudence-II
Head, Department of Dharmashastra and Mimansa,
Faculty of SVDV, BHU, Varanasi
Course Code-LB-604
Part 1, Unit 7
Nyayashastra
leLr Hkkjrh; n”kZuksa esa U;k; n”kZu vR;Ur rkfdZd n”kZu gSA bls gh rdZfo|k]
rdZ”kkL=] gsrqfo|k] gsrq”kkL=] oknfo|k] U;k;“kkL=] vkUohf{kdh vkfn ukeksa ls Hkh
lEcksf/kr fd;k tkrk gSA bl n”kZu esa rdZ dk LFkku vR;Ur egRRoiw.kZ gS] blfy;s
bls rdZ”kkL= ;k rdZfo|k dgk tkrk gSA rDZ;Urs izfrik|Urs bfr rdkZ% inkFkkZ%A
inkFkksaZ dks rdZ Hkh dgk tkrk gSA budk foospu djus okyk “kkL= rdZ”kkL= dgykrk
gSA vuqeku izek.k dk foospu bl “kkL= eas vf/kd ek=k esa gSA vuqeku iz;ksx dk ,d
?kVd gS gsrqA gsrq fo’k;d fopkj U;k;”kkL= dk egRRoiw.kZ fgLlk gSA blfy;s
U;k;”kkL= dks gsrqfo|k ;k gsrq“kkL= Hkh dgk tkrk gSSA izek.kksa ls fo’k; ds ijh{k.k dks
U;k; dgrs gSaA izek.kS% vFkZijh{k.ka U;k;%A bl dkj.k U;k; dk fo”ks’k fopkj gksus ds
dkj.k bl “kkL= dks U;k;”kkL= Hkh dgrs gSaA dkSfVY; vFkZ”kkL= esa bl “kkL= dks
vkUohf{kdh dgk x;k gSA os dgrs gSa fd tks “kkL= vU; lHkh “kkL=ksa ds fy;s nhid
ds leku midkjd gS] lHkh dk;ksZa dk mik; gS rFkk lHkh /kekZsa dk vkJ; gS] og
U;k;”kkL= gSA mls gh vkUohf{kdh dgk x;k gSA
iznhi% loZfo|kukeqik;% loZdeZ.kke~A
vkJ;% loZ/kekZ.kka “k”onkUohf{kdh erkAA dkSfVY; vFkZ”kkL=] fo|ksn~ns”k izdj.k
blh ckr dks U;k;Hkk’; eas izFke lw= dh O;k[;k esa Hkh dgk x;k gSA ogka dgrss gSa fd
izR;{kkxekH;kehf{krL;kFkZL;kUoh{k.keUoh{kkA r;k izorZr bR;kUohf{kdh U;k;fo|k
U;k;”kkL=e~A U;k;Hkk’;] izFke lw=

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vFkkZr~ izR;{k rFkk “kkL=Jqr fo’k;ksa ds rkfRRod :Ik dks voxr djkus okyh fo|k gh
U;k;fo|k ;k U;k;”kkL= gSA ;g vU; fo|kvksa esa Js’B dgh tkrh gS rFkk lHkh vU;
fo|kvksa dh midkjd gSA dgk x;k gS &
dk.kkna ikf.kuh;a p loZ”kkL=ksidkjde~A
dk.kkn dk vFkZ gS U;k;fo|kA U;k; “kkL= esa 16 inkFkZ Lohdkj fd;s x;s gSaA buesa
,d inkFkZ gS oknA okn ds fo’k; esa vf/kd fopkj gksus ds dkj.k U;k;”kkL= dks
oknfo|k ds uke ls Hkh lacksf/kr fd;k tkrk gSA
U;k; n”kZu esa Lohd`r 16 inkFkZ bl izdkj gSa &
1- izek.k 9- fu.kZ;
2- izes; 10- okn
3- la”k; 11- tYi
4- iz;kstu 12- for.Mk
5- n`’VkUr 13- gsRokHkkl
6- fl)kUr 14- Ny
7- vo;o 15- tkfr
8- rdZ 16- fuxzg LFkku
1- izek.k & izek ds dj.k dks izek.k dgk tkrk gSA iz”u gksrk gS fd izek D;k gS \
;FkkFkZ Kku dks izek dgrs gSaA izekdj.ka izek.ke~A ;FkkFkkZuqHko% izekA
tks oLrq tSlh gS] mlesa mlh izdkj ds Kku dks ;FkkFkZ Kku dgk tkrk gSA
rn~ofr rRizdkjda Kkua ;FkkFkZe~A tSls & jTtq eas jTtq dk Kku gksuk ;FkkFkZ Kku
gSA ogha jTtq esa liZ dk Hkze v;FkkFkZ Kku gSA blhfy;s v;FkkFkZ Kku dh ifjHkk’kk
cryk;h gS & rnHkkoofr rRizdkjda Kkue~ v;FkkFkZe~A ftl oLrq esa tks /keZ ugha
gS] fQj Hkh ;fn mlesa ml /keZokys dk cks/k gksus yxs] rks mls v;FkkFkZ Kku dgk
tkrk gSA tSls igys gh dgk x;k fd jTtq esa liZRo ugha gS] liZRo rks liZ esa
jgrk gSA fQj Hkh ;fn jTtq essa liZRo Hkklus yxs] rks mls v;FkkFkZ Kku dh Js.kh
eas j[kk tkrk gSA
U;k; n”kZu esa pkj izdkj ds izek.k Lohd`r fd;s x;s gSa & izR;{k]
vuqeku] mieku rFkk “kCnA dgk x;k gS &
izR;{kkuqekuksieku”kCnk% izek.kkfuA & U;k; lw=

90
1& izR;{k & bfUnz; rFkk fo’k; ds lfUud’kZ ls tks Kku mRiUu gksrk gS] mls izR;{k
Kku dgk tkrk gS rFkk bl Kku ds dj.k dks izR;{k izek.k dgrs gSaA
bfUnz;kFkZlfUud’kZtU;a Kkua izR;{ke~A
rdZHkk’kk esa izR;{k izek.k ds vUrxZr ikap Øe cryk;s x;s gSaA
bfUnz; & lfUud’kZ & fufoZdYid Kku & lfodYid Kku & gkuksiknkuksis{kk cqf)
izek.k vokUrj O;kikj izek
izek.k vokUrj O;kikj izek
izek.k vokUrj O;kikj izek
lcls igys p{kq vkfn bfUnz;ksa ls fo’k;ksa dk lfUud’kZ gksrk gSA lfUud’kZ dk
vFkZ gS lEcU/kA blds ckn gesa fo’k; dk fufoZdYid Kku mRiUu gksrk gSA mlds ckn
lfodYid Kku mRiUu gksrk gS vkSj mlds ckn gkuksiknkuksis{kk cqf) mRiUu gksrh gSA
fo’k; dks ysus ;k NksM+us dh cqf) dks gkuksiknkuksis{kk cqf) dgk tkrk gSA
;fn ge p{kq dks dj.k ;k izR;{k izek.k ekurs gSa] rks lfUud’kZ dks vokUrj
O;kikj dgk tkrk gS vkSj fufoZdYid Kku dks izR;{k izek dgrs gSaA ;fn ge
lfUud’kZ dks izR;{k izek.k dgsa] rks fufoZdYid Kku dks vokUrj O;kikj dgk tkrk gS
vkSj lfodYid Kku dks izR;{k izek dgrs gSaA ;fn fufoZdYid Kku dks izR;{k izek.k
dgk tk;s] rks lfodYid Kku dks vokUrj O;kikj dgrs gSa vkSj gkuksiknkuksis{kk cqf)
dks izR;{k izek dgk tk;sxkA
2& vuqeku & O;kfIr ls fof”k’V gsrq dk i{k/keZrk Kku vuqeku dgykrk gSA bls gh
fyax ijke”kZ Hkh dgk tkrk gSA rdZHkk’kk ds vuqlkj & fyaxijke”kZ% vuqekue~A vuqeku
ls vuqfefr uked izek gksrh gSA bls ,d mnkgj.k ls le>k tk ldrk gSA dksbZ
vkneh taxy ls tk jgk gSA ogka mls vkx dh t:jr eglwl gksrh gSA rHkh ml
vkneh dks nwj fdlh igkM+ ls /kqvka fudyrk gqvk fn[kykbZ iM+rk gSA bl jkgxhj
vkneh us blls igys vusdksa ckj jlksbZ vkfn dbZ txgksa ij /kqvka vkSj vkx
lkFk&lkFk eas ns[kk gqvk gSA bls ;g igys ls gh irk gS fd tgka tgka /kqvka gksrk gS]
ogka ogka vkx gksrh gSA blfy;s og vkneh nwj igkM+ ij /kqvka ns[kdj >V ls ;g
le> tkrk gS fd ;gka ij vkx t:j gksxhA ;gka ij vuqeku izek.k ds }kjk vkx dk

91
igkM+ ij Kku gks jgk gSA bl lEiw.kZ izfØ;k dks U;k; n”kZu dh Hkk’kk esa bl izdkj
le>k tk ldrk gSA
tgka tgka /kqvka gS] ogka ogka vkx gS & bl Kku dks O;kfIr Kku dgk tkrk gSA
dgk x;k gS & lkgp;ZlEcU/kks O;kfIr%A bl O;kfIr Kku dks tkuus ds ckn tc dksbZ
O;fDr vfXu dh O;kfIr ls fof”k’V /kq,a dks igkM+ ij ns[krk gS] rks bl Kku dks
O;kfIr fof”k’V i{k/keZrk Kku dgk tkrk gSA ;gh fyaxijke”kZ Hkh dgykrk gSA bl
Kku ls ;g vuqfefr gksrh gS fd igkM+ ij vkx gSA bl vuqeku esa igkM+ i{k gS] /kqvka
gsrq gS vkSj vkx lk/; gSA
tgka ij lk/; dk lUnsg gksrk gS] mls i{k dgk tkrk gSA tSls & ioZrA ftl
dkj.k ls ge lk/; dks fl) djrs gSa] mls lk/ku dgrs gSaA bls gh gsrq] fyax ;k
fufeRRk Hkh dgk tkrk gSA tSls & /kqvkaA i{k es gsrq ds }kjk ftls fl) fd;k tkrk gS]
og lk/; dgykrk gSA tSls & vkxA tgka tgka /kqvka gS] ogka ogka vkx gS] ;g Kku
O;kfIr Kku dgykrk gSA O;kfIRk cukrs le; gsrq dks igys j[kk tkrk gS rFkk lk/;
dks ckn esa j[kk tkrk gSA vFkkZr~ tgka tgka gsrq gS] ogka ogka lk/; gksxk & ,slh
O;kfIr curh gSA O;kfIr Kku rHkh fuf”pr gksrk gS] tc dbZ ckj /kqvka vkSj vkx lkFk
lkFk fn[kkbZ fn;s gksa vkSj fcuk vkx ds dHkh Hkh /kqvka fn[kykbZ u fn;k gksA O;kfIr esa
mikf/k ugha gksuh pkfg;sA mikf/k ls ;qDr gksus ij O;kfIr Bhd ugha curhA mikf/k dk
y{k.k rdZHkk’kk] ekues;ksn; vkfn xzUFkksa esa fn;k x;k gSA tks lk/ku dk vO;kid gks
vkSj lk/; ds lkFk ftldh leO;kfIr gks] mls mikf/k dgk tkrk gSA ekues;ksn; ds
vuqlkj & lk/kukO;kidRos lfr lk/;leO;kIr% mikf/k%A izLrqr mnkgj.k esa /kqvka O;kI;
gS vkSj vfXu O;kid gSA tks vf/kd txg ij jgrk gS] mls O;kid dgk tkrk gSA tks
de txg ij jgrk gS] mls O;kI; dgk tkrk gSA vuqeku izek.k ds nks Hksn ekus x;s
gSa & LokFkkZuqeku vkSj ijkFkkZuqekuA
tks vuqeku dsoy vius fy;s fd;k tkrk gS] mls LokFkkZuqeku dgrs gSaA tks
vuqeku nwljs dks Kku djkus ds fy;s fd;k tkrk gS] mls ijkFkkZuqeku dgk tkrk gSA
uS;kf;dksa ds vuqlkj ijkFkkZuqeku ds vuqeku okD; esa ikap vo;o gksrs gSa & izfrKk]
gsrq] mnkgj.k] miu; vkSj fuxeuA tSls iwokZsDr vfXulk/;d vuqeku esa izfrKk vkfn
bl izdkj ls gSa &
izfrKk & ioZr ij vfXu gSA

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gsrq & D;kasfd ogka /kqvka gSA
mnkgj.k & tgka tgka /kqvka gS] ogka ogka vkx gSA tSls jlksbZ?kj esaA
miu; & blh O;kfIr ls ;qDr /kqvka ioZr ij gSA
fuxeu & blfy;s ioZr ij vfXu gSA
O;kfIr ds nks Hksn cryk;s x;s gSa & vUo; O;kfIr] O;frjsd O;kfIrA tSls iwoksZDr
mnkgj.k esa *tgka tgka /kqvka gS] ogka ogka vkx gS* ;g vUo; O;kfIr gSA bls
ldkjkRed O;kfIr Hkh dgk tk ldrk gSA rRlRRos rRlRRoe~ & ,d ds gksus ij nwljs
dk gksuk] ;g vUo; O;kfIr dk y{k.k gSA O;frjsd O;kfIr dks fu’ks/kkRed O;kfIr dgk
tkrk gSA rnHkkos rnHkko%A ,d ds u gksus ij nwljs dk u gksukA tSls & tgka tgka
vkx ugha gS] ogka ogka /kqvka ugha gSA ;g O;frjsd O;kfIr gSA vUo; rFkk O;frjsd
O;kfIr ds vk/kkj ij vuqeku ds Hkh rhu Hksn fd;s tkrs gSa & dsoykUo;h]
dsoyO;frjsdh] vUo;O;frjsdhA ftl vuqeku esa dsoy vUo; O;kfIr gh lEHko gks
lds] ml vuqeku dks dsoykUo;h vuqeku dgk tkrk gSA ftl vuqeku esa dsoy
O;frjsd O;kfIr gh lEHko gks] ml vuqeku dks dsoyO;frjsdh vuqeku dgrs gSaA ftl
vuqeku esa vUo; O;kfIr vkSj O;frjsd O;kfIr nksuksa lEHko gks] ml vuqeku dks
vUo;O;frjsdh vuqeku dgk tkrk gSA vUo;O;frjsdh vuqeku esa ikap /keksZa dk gksuk
ije vko”;d gS & gsrq dk i{k esa jguk] gsrq dk li{k esa Hkh jguk] gsrq dk foIk{k esa
u jguk] lk/; dk fo’k; ckf/kr u gksuk] lk/;kHkko lk/kd gsrq dk fo|eku u jgukA
vU; n`f’V ls O;kfIr ds nks vkSj Hksn gSa & le O;kfIr rFkk fo’ke O;kfIrA iwokZsDr
O;kfIr fo’ke O;kfIr gSA D;ksafd bl O;kfIr dks myV djds ugha cksy ldrsA tgka
tgka /kqvka gS] ogka ogka vkx gS & ;s rks dgk tk ldrk gSA ysfdu tgka tgka vkx gS]
ogka ogka /kqvka gS & ;g ugha dgk tk ldrkA D;ksafd cgqr ls txgksa ij vkx rks
gksrh gS] ysfdu /kqvka ugha gksrkA tSls xeZ fd;k gqvk yksgs dk fi.MA blfy;s ,slh
O;kfIr dks fo’ke O;kfIr dgk tkrk gSA le O;kfIr og gksrh gS] ftls nksuksa izdkj ls
iyV dj Hkh cksyk tk ldsA tSls & tgka tgka vfHk/ks;Ro gS] ogka ogka izes;Ro gSA
vkSj tgka tgka izes;Ro gS] ogka ogka vfHk/ks;Ro gSA ;g le O;kfIr gSA bls nksuksa izdkj
ls myV iyV dj cksyk tk ldrk gSA izes;Ro dk vFkZ gS ;FkkFkZ Kku dk fo’k; vkSj
vfHk/ks;Ro dk vFkZ gS ftldk dksbZ uke gksA lalkj esa ftu ftu oLrqvksa dk gesa
;FkkFkZ Kku gksrk gS] mudk dqN u dqN uke gksrk gh gS vkSj ftudk dqN u dqN

93
uke gS] mudk gesa ;FkkFkZ Kku gksrk gSA blfy;s ;g leO;kfIr gSA blh rjg tks tks
vfuR; gS] og og d`f=e gSA tks tks d`f=e gS] og og vfUkR; gSA ;g Hkh le O;kfIr
gSA
3& mieku & lkn`”; Kku dks mieku izek.k dgk tkrk gS vkSj bl mieku izek.k
ls tks laKk lafK lEcU/k Kku gksrk gS] mls mifefr dgrs gSaA tSl & fdlh “kgjh
vkneh us uhyxk; uked Ik”kq dks dHkh Hkh thou esa ns[kk ugha gSA og “kgjh vkneh
taxy eas jgus okys fdlh vkneh ls iwNrk gS fd uhyxk; dSlh gksrh gS \ taxyh
vkneh crkrk gS fd uhyxk; xk; dh rjg gh gksrh gSA dqN fnu ckn og “kgjh
vkneh taxy tkrk gS] rks mls xk; dh rjg dk gh ,d tkuoj fn[kykbZ iM+rk gSA
ml tkuoj dks ns[kdj “kgjh vkneh dks mleas xk; dk lkn`”; fn[kykbZ iM+rk gSA
ftlls “kgjh vkneh le> tkrk gS fd ;g uhyxk; gSA ;gka ij taxyh vkneh dk
*uhyxk; xk; dh rjg gksrh gS* ;g vfrns”k opu lqudj taxy esa x;s “kgjh vkneh
dks uhyxk; esa tks xk; dk lkn`”; fn[kykbZ iM+rk gSA og mieku izek.k gSA blls
tks ;g Kku mRiUu gksrk gS fd ;gh uhyxk; gSA bls laKk lafK lEcU/k Kku dgrs
gSaA ;gh mifefr izek gSA
vfrns”kokD;kFkZLej.klgd`ra xkslkn`”;fof”k’Vfi.MKkueqiekue~A
4& “kCn & vkIr iq#’k ds opu dks “kCn izek.k dgk tkrk gSA dgk x;k gS &
vkIrokD;a “kCn%A tks lnk lR; gh cksyrk gS] mls vkIr dgrs gSaA “kCn izek.k ls gksus
okys Kku dks “kkCncks/k ;k “kkCn izek dgk tkrk gSA fdlh okD; dk vFkZ le>us ds
fy;s rhu vko”;d dkj.k gSa & vkdka{kk] ;ksX;rk rFkk lfUuf/kA bu rhuksa ds gksus ij
gh ge fdlh okD; dk vFkZ le> ikrs gSaA tSls *xk; gkFkh iq#’k ?kksM+k* ;g dksbZ
okD; ugha gS] D;kasfd ;gka inkFkksZa dh vkil esa vkdka{kk ugha gSA bl okD; ds pkjksa
in fcYdqy vyx&Fkyx gSaA budk vkil esa dksbZ lEcU/k ugha gSA blh rjg *vkx ls
lhapks* bl okD; esa vkx vkSj lhapks & bu nksuksa inkFkksZa dk vkil esa lEcU/k gksus dh
;ksX;rk ugha gS] D;ksafd vkx ls lhapus dk dk;Z lEHko ugha gSA blfy;s *vkx ls
lhapks* dks okD; ugha dgk tk ldrk gSA blh rjg *jke iqLrd i<+rk gS* bl okD;
ds izR;sd in ;fn rhu&rhu ?kaVs ckn cksys tka;s] rks mu inksa dh vkil fdlh izdkj
dh lfUuf/k ugha curh gSA blfy;s mudks Hkh okD; ugha dgk tk ldrk gSA

94
U;k; er esa vFkkZifRr vkSj vHkko izek.k dks vyx Lohdkj ugha fd;k x;k gSA
vFkkZifRr izek.k dk vUrHkkZo vuqeku esa gks tkrk gS rFkk vHkko izek.k dk vUrHkkZo
izR;{k esa gks tkrk gSA
2- izes; & izes; ckjg gSaA vkRek] “kjhj] bfUnz;] vFkZ] cqf)] eu] izo`fRr] nks’k]
izsR;Hkko] Qy] nq%[k] vioxZA
3- la”k; & ,d /kehZ esa fo#) vusd /keksZa dk Kku la”k; dgykrk gSA tSls nwj ls
fdlh oLrq dks ns[kdj ;g la”k; gksrk gS fd ;g [kEHkk gS ;k vknehA ;g rhu
izdkj dk gSA fo”ks’k u fn[kykbZ iM+us ij leku /keZ ls mRiUu] foizfrifRRk ls
mRiUu] vlk/kkj.k /keZ ds n”kZu ls mRiUuA tc nks inkFkksZa esa dqN fo”ks’k /keZ
fn[kykbZ ugha iM+rk gS] ml le; mu inkFkksaZ ds dsoy lkekU; /keZ dks ns[kus ls
la”k; mRiUu gksrk gSA tSls & nwj ls fdlh yEch oLrq dks ns[kus ij mlesa Vs<+k
& es<+k] dksVj vkfn dk n”kZu ugha gksrk vkSj u gh mlesa fdlh vkneh ds gkFk]
iSj vkfn vo;o fn[kykbZ iM+rs gSaA dsoy nwj ls ns[kus ij [kEHks vkSj vkneh ds
lk/kkj.k /keZ yEckbZ vkfn dks ns[kus ij ;g la”k; mRiUu gksrk gS fd ;g LFkk.kq
vFkkZr~ [kEHkk gS ;k iq#’k \ ;g la”k; dk igyk izdkj gSA
tc fo”ks’k dk n”kZu u gksus ij dsoy foizfrifRr ;kfu lansg ek= gksrk gS]
rks ;g nwljs izdkj dk la”k; gSA tSls “kCn fuR; gS ;k vfuR;] ;g dsoy
foizfrifRr gSA rhljk la”k; vlk/kkj.k /keZ ds n”kZu ls mRiUu gksrk gSA tc nks
inkFkksZa ds fo”ks’k /keZ fn[kykbZ ugha iM+rs] ml le; dsoy vlk/kkj.k /keZ ds
fn[kykbZ iM+us ls la”k; gksrk gSA tSls i`Foh ds vlk/kkj.k /keZ xU/koRRo dks
tkuus ij i`Foh ds fo’k; esa lUnsg mRiUUk gksrk gS fd i`Foh fuR; gS ;k vfuR; \
4- iz;kstu & ftlls iz;qDr gksdj euq’; fdlh dk;Z esa izo`Rr gksrk gS] mls iz;kstu
dgk tkrk gSA
5- n`’VkUr & oknh vkSj izfroknh] nksuksa dk ftl fo’k; esa erHksn u gks] mls n`’VkUr
dgk tkrk gSA vFkkZr~ vius er ds fl)kUr dks ftl mnkgj.k ds }kjk izLrqr
fd;k tkrk gS] mls n`’VkUr dgrs gSaA ;g nks izdkj dk gS & lk/kE;Z rFkk oS/kE;ZA
6- fl)kUr & izkekf.kdrk ds lkFk Lohdkj fd;k tkus okyk vFkZ fl)kUr dgykrk
gSA ;g pkj izdkj dk gS & loZrU=] izfrrU=] vf/kdj.k] vH;qixeA tks fl)kUr
lHkh lEiznk;ksa esa Lohdkj fd;k tkrk gS] mls loZrU= dgrs gSaA tks dsoy
lekurU= esa ekus tkus okys fl)kUr gSa] os izfrrU= dgs tkrs gSaA tc fdlh ,d

95
 fl)kUr dks ekuus ds fy;s nwljk dksbZ fl)kUr ekuuk iM+rk gS] rks mls vf/kdj.k
dgrs gSaA tc dksbZ fl)kUr viuk vHkh’V u gksus ij Hkh mls FkksM+h nsj ds fy;s
eku fy;k tkrk gS] rks mls vH;qixe dgk tkrk gSA
7- vo;o & iwoZ esa izek.k inkFkZ ds fu:i.k ds izlax esa vuqeku dk fu:i.k fd;k
x;k gSA mlds vUrxZr ijkFkkZuqeku eas ikap vo;oksa okys vuqeku okD; dh ppkZ
dh x;h gSA izfrKk] gsrq] mnkgj.k] miu; rFkk fuxeuA
8- rdZ & vfu’V izlax dks rdZ dgk tkrk gSA ;g vuqeku dk lg;ksxh gksrk gSA
tSls & ioZr ij /kwe dks ns[kdj vfXu dk vuqeku fd;k tkrk gSA bldks fl)
djus ds fy;s ;g rdZ fn;k tkrk gS fd ;fn ;gka vkx ugha gksxh] rks ;gka /kwe
Hkh ugha gksxkA ysfdu ioZr ij /kwe gS] blfy;s ogka vkx Hkh vo”; gksxhA ;gka
/kwe dk u gksuk vfu’V gSA fQj Hkh mldh izkfIr gks jgh gSA ;g rdZ vuqeku dk
lgk;d gSA
9- fu.kZ; & fu.kZ;kRed Kku dks fu.kZ; dgk tkrk gSA ;g izek.kksa ds vk/kkj ij
gksrk gSA
10- okn & oknh vkSj izfroknh esa tks dFkk pyrh gS] vFkkZr~ oknh vkSj izfroknh esa tks
“kkL=kFkZ pyrk gS] mls okn dgk tkrk gSA
11- tYi & oknh rFkk izfroknh] nksuksa ds lk/ku ls ;qDr dFkk] ftlesa oknh rFkk
izfroknh nksuksa fot;kfHkyk’kh gksrs gSa] ml dFkk dks tYi dgk tkrk gSA
12- for.Mk & vius i{k dh LFkkiuk ls jfgr dFkk dks for.Mk dgk tkrk gSA vFkkZr~
ftlesa dsoy nwljs ds i{k ij nks’k yxk;k tkrk gS] ysfdu vius i{k dh LFkkiuk
ugha dh tkrh] mls for.Mk dgrs gSaA bldk mn~ns”; dsoy nwljs ds er dk
[k.Mu djuk gh gSA
13- gsRokHkkl & tks gsrq u gksdj Hkh gsrq ds leku izrhr gks] mls gsRokHkkl dgk tkrk
gSA vFkkZr~ vkHkkflr gsrq gsRokHkkl dgykrk gSA iwoZ esa tgka vuqeku izek.k dk
fu:i.k fd;k x;k Fkk] ogka ij vfXu dks fl) djus ds fy;s /kwe gsrq miLFkkfir
fd;k x;k FkkA ;fn vfXu dks fl) djus ds fy;s /kwe ds LFkku ij dksbZ vU;
vlr~ gsrq miLFkkfir fd;k tkrk gS] rks mls gsRokHkkl dgrs gSaA tSls & ioZrks
ofg~eku~ izes;Rokr~A ;gka ioZr ij vfXu dks fl) djus ds fy;s izes;Ro gsrq
miLFkkfir fd;k x;k gSA ;g izes;Ro okLro esa gsrq ugha gS] gsRokHkkl gSA D;ksafd
tgka tgka izes;Ro gS] ogka ogka ofg~u gS] ;g O;kfIr cu ugha ldrh gSA izes;Ro rks
tyk”k; esa Hkh jgrk gS] ysfdu ogka vfXu ugha gksrkA blfy;s ;g izes;Ro

96
gsRokHkkl gSA ;g gsRokHkkl ikap izdkj dk gS & lO;fHkpkj ¼vuSdkfUrd½] fo#)]
lRizfri{k ¼izdj.kle½] vfl) rFkk ckf/kr ¼dkykR;;kifn’V½A
1& lO;fHkpkj dks vuSdkfUrd gsRokHkkl dgk tkrk gSSA ;g nks izdkj dk gS &
lk/kkj.k vuSdkfUrd rFkk vlk/kkj.k vuSdkfUrdA buessa igyk lk/kkj.k
vuSdkfUrd i{k] li{k vkSj foi{k rhuksa esa jgrk gSA tSls & “kCn fuR; gS] izes;
gksus ds dkj.kA ;gka izes;Ro gsrq i{k “kCn esa] li{k fuR; vkdk”k vkfn esa rFkk
foi{k vfuR; ty vkfn esa fo|eku gSA D;ksafd ;gka ij i{k “kCn] li{k vkdk”k
rFkk foi{k ty & ;s lHkh izes; gSaA tks gsrq li{k vkSj foi{k] bu nksuksa ls
O;ko`RRk gksdj dsoy i{k esa jgrk gSS] mls vlk/kkj.k vuSdkfUrd dgk tkrk gSA
tSls i`Foh fuR; gS] xU/korh gksus ds dkj.kA xU/koRRo gsrq u rks li{k esa jgrk gS]
u gh foIk{k esaA dsoy i{k i`Foh esa gh jgrk gSA blfy;s ;gka vlk/kkj.k
vuSdkfUrd gsRokHkkl gSA
2& fo#) gsRokHkkl mls dgrs gSa] tks lk/; ds vHkko eas O;kIr jgrk gSA tSls &
“kCn fuR; gS] d`rd gksus ds dkj.kA ;gka d`rdRo vFkkZr~ tU;Rp gsrq nsdj
fuR;Ro dks fl) fd;k tk jgk gSa] tcfd tU;Ro gsrq rks fuR;RokHkko vfuR;Ro esa
O;kIr gSA tks tks d`rd gS] og og vfuR; gSA laLkkj esa ftruh Hkh oLrq;sa d`rd
;k tU; gSa] os lHkh vfuR; gSaA bu nksuksa esa le O;kfIr igys ls fuf”pr gSA lHkh
d`rd vfuR; gSa rFkk lHkh vfuR; d`rd gSaA blfy;s d`rdRo gsrq nsdj fuR;Ro
dks fl) ugha fd;k tk ldrkA ;fn d`rdRo gsrq ls fUkR;Ro fl) djsaxs] rks bls
gsRokHkkl dguk iM+sxkA
3& lRizfri{k & ftl gsrq dk izfri{k :Ik nwljk gsrq fo|eku jgrk gS] mls
izdj.kle ;k lRizfri{k gsRokHkkl dgk tkrk gSA “kCn dks vfuR; fl) djus ds
fy;s gsrq fn;k tkrk gS & fuR;/keZ dh izkfIr u gksukA mlh le; “kCn dks fUkR;
fl) djus ds fy;s Hkh nwljk gsrq mifLFkr gksrk gS & vfUkR; /keZ dh izkfIr u
gksukA vFkkZr~ lk/; ds vHkko dks fl) djus ds fy;s nwljk gsrq mifLFkr gks tkrk
gSA blfy;s lk/; lk/kd izFke gsrq gsRokHkkl cu tkrk gSA blds Hkh rhu Hksn gSa
& mithO;] mithod vkSj vuqHk;A budk foLrkj rdZHkk’kk esa fd;k x;k gSA
4& vfl) & vfl) gsRokHkkl rhu izdkj dk gS & vkJ;kfl)] Lo:ikfl) rFkk
O;kI;Rokfl)A ftl gsrq dk vkJ; vFkkZr~ i{k gh vfl) gks] mls vkJ;kfl)
gsRokHkkl dgk tkrk gSA tSls & vkdk”kiq’Ik lqxfU/kr gS] iq’Ik gksus ds dkj.kA ;gka
vkdk”kiq’Ik vkJ; gS] ftlesa lqxU/k dks lk/; ds :Ik esa fl) fd;k tk jgk gSA

97
 tcfd vkdk”kiq’Ik ukedh dksbZ oLrq miyC/k gh ugha gSA vr% ;g vkJ;kfl)
gsRokHkkl gSA
tc gsrq vius vkJ; esa jgrk gh ugha gS] rks mls Lo:ikfl) gsRokHkkl dgk
tkrk gSA D;ksafd gsrq dk Lo:Ik vius vkJ; esa vfl) gSA tSls lkekU; vfuR;
gS] d`rd gksus ds dkj.kA ;gka d`rdRo gsrq vius vkJ; lkekU; esa dHkh jgrk gh
ugha gSa] D;ksafd lkekU; dHkh d`rd gksrk gh ughaA blfy;s lkekU; esa gsrq dk
Lo:Ik vfl) gSA Lo:ikfl) ds vU; Hkh vusd Hksn gSaA tSls & fo”ks’k.kkfl)]
fo”ks’;kfl)] vleFkZfo”ks’k.kkfl)] vleFkZfo”ks’;kfl) vkfnA bu lHkh Hksnksa dk
fo”ks’k o.kZu rdZHkk’kk esa miyC/k gSA
O;kI;Rokfl) gsRokHkkl og gS] ftl gsrq dh lk/; ds lkFk O;kfIr cu ugha ikrh
gSA tSls & ioZrks /kweoku~ og~us%A ioZr ij /kqvka gS] D;ksafd ogka vkx gSA ;gka ioZr
i{k] /kwe lk/; rFkk vfXu gsrq gSA ;gka /kwe dks rc ln~gsrq ekuk tkrk] tc vfXu
dh /kwe ds lkFk O;kfIr gksrhA ysfdu vfXu dh /kwe ds lkFk O;kfIr ugha gSA tgka
tgka vfXu gS] ogka ogka /kqvka gS & ;g O;kfIr curh gh ughaA v;ksxksyd esa vfXu
gS] ysfdu ogka /kwe ugha gSA blfy;s ;g O;kI;Rokfl) gsRokHkkl gSA
5& ckf/kr & izR;{kkfn izek.k ls ftl gsrq dk fo’k; vFkkZr~ lk/; ckf/kr gks] mls
ckf/kr gsRokHkkl dgk tkrk gSA vfXu BaMk gS] d`rd gksus ls] ty dh rjgA bl
vuqeku esa gsrq d`rdRo gS rFkk fo’k; ;k lk/; gS “khrRoA ysfdu ;g “khrRo
ckf/kr gSA D;kasfd izR;{kkfn izek.kksa ls ;g ckr igys ls gh fl) gS fd vfXu xje
gksrk gS] “khr ughaA
14- Ny & vU; vfHkizk; ls iz;qDr “kCn dk vU; vFkZ dYiuk djds nks’k nsuk Ny
dgykrk gSA tSls fdlh us dgk & uodEcyks·;a nsonRRk%A ;gka dgus okys dk
rkRi;Z gS fd nsonRr ds ikl u;k dEcy gS] D;ksafd uo dk vFkZ gS u;kA ysfdu
lquus okys us vius rjhds ls uo dk vFkZ ukS la[;k djds okD; dk ;g vFkZ
fudky fy;k fd nsonRr ds ukS dEcy gSaA fQj og lquus okyk O;fDr Ny djrs
gq, ;g dgrk gS fd nsonRr rks cgqr xjhc gSA mlds ikl ,d dEcy Hkh ugha
gks ldrk gS] rks ukS dEcy dgka ls vk ik;saxsA
15- tkfr & vlr~ mRRkj dks tkfr dgk tkrk gSA vFkkZr~ xyr mRrj tkfr gSA blds
vusd Hksn gSaA tSls & mRd’kZle] vid’kZle vkfnA
16- fuxzgLFkku & ijkt; dk gsrq fuxzg LFkku dgk tkrk gSA blds Hkh vusd Hksn gSaA
tSls & U;wu] vf/kd] vifl)kUr] vFkkZUrj] vizfrHkk] erkuqKk] fojks/k vkfnA

98
 MIMANSA

- Prof. Madhav Janardan Ratate,

Course Wise Content Details for LL.B. Programme: Semester-V
Head, Department of Dharmashastra and Mimansa,
Faculty of SVDV, BHU, Varanasi
Course Name-Jurisprudence-II, Course Code-LB-604
Part 1, Unit 7 – Mimansa
lalkj ds lHkh izkf.k;ksa dh LokHkkfod izo`fRr lq[k izkfIr esa gksrh gSA ;g lq[k nks
izdkj dk gS & ykSfdd rFkk ikjekfFkZdA lkekU; O;fDr rks dsoy ykSfdd lq[k dh gh
vis{kk j[krs gSa] fdUrq gekjs leLr Hkkjrh; “kkL= ikjykSfdd lq[k rd euq’; dks igqapkus
dk mik; crykrs gSaA Hkkjrh; “kkL=ksa ds vUrxZr gh Hkkjrh; n”kZu Hkh vkrs gSaA n`”;rs
vusu bfr n”kZue~ & bl O;qRifRr ds vuqlkj leLr n”kZuksa dk mn~ns”; ijerRRo dk
lk{kkRdkj gSA Hkkjrh; n”kZu dh nks /kkjk;sa gSa & vkfLrd rFkk ukfLrdA
Hkkjrh; n”kZu ds vkfLrd oxZ esa Ng “kk[kk;as gaS & lka[;] ;ksx] U;k;] oS”ksf’kd]
ehekalk] osnkUrA bu Ng “kk[kkvksa esa eheaklk n”kZu dks gh iwoZehekalk n”kZu ;k /keZehekalk
n”kZu dgk tkrk gSA
ehekalk “kCn dk vFkZ &
ehekalk “kCn eku~ iwtk;ke~ /kkrq ls lu~ RkFkk v ,oa Vki~ izR;; djds fu’iUu gqvk
gSA ehekalk “kCn dk vFkZ fopkj gSA izd`r esa eheaklk ls *osn fopkj* ;g vFkZ fd;k tkrk gS]
D;ksafd osnfopkj ds fy;s gh ehekalk dh izo`fRRk gksrh gSA osn dk lkekU; vFkZ rks O;kdj.k
vkfn ds }kjk le>k tk ldrk gS] fdUrq tc vFkZcks/k esa la”k; gksrk gS] rc ehekalk ds
U;k;ksa ds ek/;e ls gh vFkZcks/k gks ldrk gSA osnkFkZ dks gh /keZ dgk tkrk gS] blfy;s
ehekalk dk ,d uke /keZehekalk Hkh gSA ehekalk n”kZu ds vU; uke gSa & /keZehekalk]
iwoZehekalk] okD;”kkL=] /keZfopkj”kkL=] fopkj“kkL=] /keZ”kkL=] deZ ehekalk] ;K ehekalk]
v/oj ehekalk bR;kfnA
ehekalk n”kZu esa osnkssa dk rkRi;Zcks/k gksus ds fy;s 1000 U;k; ;k vf/kdj.kksa dk
iz;ksx fd;k x;k gSA bu U;k;ksa dk ftl rjg ;Kh; i)fr esa mi;ksx gksrk gS] mlh rjg
orZeku U;kf;d izfØ;k rFkk vU; “kkL=ksa esa la”k;PNsnu ds fy;s Hkh ;s U;k; vR;Ur
mi;ksxh gSaA blhfy;s “yksdokfrZd ds izkjEHk esa gh dgk x;k gS fd ehekalk dks leqfpr
:Ik ls u tkuus ij ehekalk ds U;k; ekxZ dks le>uk dfBu gks tkrk gSA

99
 ehekalk;ka fRogkKkrs nqKkZrs okfoosdr%A
U;k;ekxZs egku~ nks’k bfr ;Ruksip;ZrkAA1
ehekalk n”kZu ds 12 v/;k;ksa ds izfrik| fo’k; & tSfeuh; lw= esa 12 v/;k; gSaA bu ckjg
v/;k;ksa ds fo’k; bl izdkj gSaA
1- izFke v/;k; dk fo’k; /keZ ds izek.kksa dk fu:i.k gSA fof/k] eU=] uke/ks;] vFkZokn]
Le`fr] okD;”ks’k] vkpkj vkSj lkeF;Z & ;s /keZ esa vkB izek.k dgs x;s gSaA bu lHkh dk
rkRi;Z /keZ esa gSA Jqfr loZizcy izek.k gS] fQj Jqfrewfydk Le`fr /keZ esa izek.k gSA
rnuqewyd vkpkj vkfn Hkh /keZ esa izek.k gSaA
2- f}rh; v/;k; esa deZHksn rFkk mlds Ng izek.kksa dk fu:i.k fd;k x;k gSA deZ Hksn ds
Ng izek.k gSa & “kCnkUrj] vH;kl] la[;k] uke/ks;] xq.k rFkk izdj.kkUrjA
3- r`rh; v/;k; esa vax vaxh Hkko dk fu:i.k fd;k x;k gSA vaxRoa uke “ks’kRoe~ ijkFkZRoe~
ok ;g vax dk y{k.k cryk;k x;k gSA vax vaxh Hkko ds cks/kd 6 izek.k gSa & Jqfr]
fyax] okD;] izdj.k] LFkku] lek[;kA bu Ng izek.kksa esa iwoZ iwoZ izcy gSa rFkk mRrjksRrj
nqcZyA
4- prqFkZ v/;k; esa iz;ksT; iz;kstd Hkko dk fopkj gqvk gSA rIrs i;fl n/;ku;fr] lk
oS”onsoh vkfe{kk] okftH;ks okftue~A ;gka n/;ku;u dh iz;ksftdk vkfe{kk gS & ;g
fopkj fd;k x;k gSA
5- iape v/;k; eas Øecks/kd fof/k vFkkZr~ iz;ksxfof/k rFkk mlds cks/kd Ng izek.kksa dk
fu:i.k fd;k x;k gSA ;s Ng izek.k gSa & Jqfr] vFkZ] ikB] LFkku] eq[;] izo`fRRkA bu
Ng izek.kksa esa iwoZ iwoZ izcy gSa rFkk mRrjksRrj nqcZyA
6- vf/kdkj dk fu:i.k ‘k’B v/;k; eas fd;k x;k gSA fdl deZ esa dkSu vf/kdkjh gS rFkk
fdlesa dkSu vf/kdkjh ugha gSA vf/kdkjh esa dkSu dkSu ls /keZ gksus pkfg;sA blh rjg
izfrfuf/k dk fopkj Hkh fd;k x;k gSA

1- “yksd okfrZd 1-1-15

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7- lIre rFkk v’Ve v/;k; esa vfrns”k dk fu:i.k gSA lIre esa lkekU; vfrns”k rFkk
v’Ve eas fo”ks’k vfrns”k dk fu:i.k fd;k x;k gSA vfrns”k dk y{k.k gS & ;su izek.ksu
izd`rkS ifBrkuke~ vaxkuka izd`frln`”kfod`fr’kq izkfIr% Hkofr] rr~ izek.ke~A ftl izdkj
izd`fr ;kx fd;k tkrk gS] mlh izdkj fod`fr ;kx dk Hkh vuq’Bku djuk pkfg;sA
izd`fron~ fod`fr% drZO;k & ;g vfrns”k gSA tgka lEiw.kZ vaxksa ds lfgr iz/kku dk
fUk:i.k gS] og izd`fr dgykrh gSA tgka lEiw.kZ vaxksa dk fu:i.k ugha gksrk] og fod`fr
gSA fod`fr esa tks vax ugha gksrs] mudk izd`fr ls vfrns”k gksrk gSA vfrns”k rhu izdkj
dk gS & izR;{kopukfrns”k] ukekfrns”k] vuqferopukfrns”kA
8- v’Ve v/;k; esa fo”ks’kkfrns”k dk fu:i.k gSA tSls & vkXus; ;kx ls lkS;Z ;kx esa
vfrns”k vkrk gSA ogka fuokZi] vkS’k/knzO;dRo] ,dnsorkRo] rf)rsu nsorkfunsZ”k & bu
fyaxksa ls vfrns”k vkrk gSA bl v/;k; esa Li’V fyax] vLi’V fyax] izcy fyax vkfn dk
fu:i.k gSA
9- uoe v/;k; esa Åg dk fu:i.k gSA Åg dk y{k.k gS & vfrfn’VL; inkFkZL;
dk;Zo”kkr~ :ikUrjdj.ke~ Åg%A tSls *vXu;s tq’Va fuoZikfe* ds LFkku ij lkS;Z;kx esa
*lw;kZ; tq’Va fuoZikfe* ;g iz;ksx gksrk gSA blds rhu Hksn gSa & eU=ksg] lkeksg rFkk
laLdkjksgA
10- n”ke v/;k; esa ck/k dk fu:i.k gSA ck/k dk y{k.k gS & iz;kstukHkkokfnuk
vaxkukeuuq’Bkue~A iz;kstu u gksus ij vaxksa dk vuq’Bku u gksuk gh ck/k gSA tSls
d`’.ky p# esa rq’kfoeksd :ih iz;kstu u gksus ds dkj.k vo?kkr dk ck/k gksrk gSA ck/k
ds rhu Hksn gSa & vFkZyksi ls] izfr’ks/k ls rFkk izR;kEuku lsA
11- ,dkn”k v/;k; esa rU= dk fu:i.k gSA rU= dk y{k.k gS & ,dsUkSo ld`r~ izofrZrsu
cgwuka iz/kkukukeqidkj%A ,d ckj gh vax dk vUkq’Bku djus ls ;fn ml vax dk midkj
vusd iz/kkuksa esa pyk tkrk gS] rks mls rU= dgk tkrk gSA tSls iw.kZekl ds rhu iz/kkuksa
esa iz;ktkfn vaxksa dk vuq’Bku ,d ckj gh fd;k tkrk gSA

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12- ckjgosa v/;k; esa izlax dk fu:i.k gSA vU;r% midkjykHkkr~ vaxkukeuuq’Bkua izlax%A
vU; izdkj ls ;fn midkj fey tkrk gS] rks vaxksa dk vuq’Bku ugha fd;k tkrkA tSls
Ik”kq ;kx ds vaxksa dk izlax ls Ik”kq iqjksMk”k esa Hkh midkj gksrk gSA
lad’kZ.k dk.M & dqN fo}ku~ lad’kZ.k dk.M dks Hkh tSfefu dh jpuk ekurs gSaA bls
nsork dk.M Hkh dgk tkrk gSA blesa mikluk dk foospu izkIr gksrk gSSA jkekuqtkpk;Z us
czg~elw= ds JhHkk’; esa ehekalk n”kZu dks ‘kksM”kk/;k;h dgk gSA
ehekalk n”kZu esa izek.k&izes; fopkj
izek.k fopkj &
ehekalk n”kZu ds vuqlkj izek dk y{k.k gS & vKkrrRRokFkZKkue~ izekA vFkkZr~ vKkr
rRRokFkZ dk tks Kku gS] og izek gSA
izek pkKkrRkRRokFkZKkuesok= fHk|rsA2
izek.k dk y{k.k gS & izekdj.kesok= izek.ke~A3 izek dk tks dj.k gS] ogh izek.k gSA izHkkdj
ds erkuqlkj izek.k dk y{k.k gS & vuqHkwfr% izek.ke~A4
ehekalk n”kZu esa HkkV~V ehekaldksa ds vuqlkj 6 izek.k Lohdkj fd;s x;s gSa &
1- izR;{k 2- vuqeku 3- “kCn 4- mieku 5- vFkkZifRRk 6- vHkko
izHkkdj er esa bu izek.kksas esa ls vHkko dks gVkdj 5 gh izek.k Lohdkj fd;s x;s gSaA
1- izR;{k izek.k&
izR;{k dk y{k.k gS & bfUnz;kFkZlEiz;ksxtU;a Kkua izR;{ke~A5 ehekalk lw= ds vuqlkj &
lRlEiz;ksxs iq#’kL; bfUnz;k.kka cqf)tUe RkRizR;{ke~ vfufeRra fo|ekuksiyEHkuRokr~A6

2- ekues;ksn; “yksd 3
3- ekues;ksn; “yksd 3
4- ekues;ksn; i`’B 9
5- HkkV~Vlkj i`’B 2
6- ehekalk lw= 1-1-4

102
 rkRi;Z gS fd bfUnz;ksa dk fo’k;ksa ds lfUud’kZ ls gksus okyks tks Kku gS] og izR;{k izek.k
dgykrk gSA HkkV~erkuqlkj lfUud’kZ nks ;k rhu izdkj ds gSa & la;ksx] la;qDr rknkRE;]
la;qDrrnkRerknkRE;A
izHkkdjerkuqlkj lfUud’kZ ds nks gh izdkj gSa & la;ksx] la;qDr leok;] leok;A
izR;{k izek.k ds nks Hksn gSa & lfodYid rFkk fufoZdYidA
dYiukjfgr Kku fufoZdYid gSA tcfd ikap izdkj dh dYiukvksa ls ;qDr Kku
lfodYid gSA ;s ikap dYiuk;sa gSa & nzO; dYiuk] tkfr dYiuk] xq.k dYiuk] deZ
dYiuk] uke dYiukA
2- vuqeku izek.k &
vuqeku dk y{k.k gS & O;kI;n”kZuknlfUud`’VkFkZKkueuqekue~A7
vFkkZr~ O;kI; dk n”kZu gksus ij] mlls lEcfU/kr tks vlfUud`’V inkFkZ gS] mldk Kku
vuqeku izek.k gSA
U;wuns”ko`fRr dks O;kI; dgrs gSa rFkk vf/kdns”ko`fRr O;kid dgykrk gSA bu nksuksa ds
chp tks LokHkkfod vFkkZr~ mikf/k jfgr lEcU/k gS] mls O;kfIr dgk tkrk gSA
LokHkkfod% lEcU/kks O;kfIr%A LokHkkfodRoa p mikf/kjkfgR;e~A8
tSls /kwe rFkk vfXu ds chp LokHkkfod lEcU/k gSA ;gh O;kfIr gSA blh dkj.k ioZRk ij
/kwe dks ns[kdj vlfUud`’V vfXu dk vuqeku gks tkrk gSA
;= ;= /kwe% r= r= vfXu% & vUo; O;kfIr
;= ;= vfXu% ukfLr] r= r= /kweks·fi ukfLr & O;frjsd O;kfIr
mikf/k dk y{k.k vkxs ekues;ksn; esa cryk;k x;k gS fd tks lk/ku dk vO;kid gksrs
gq, tks lk/; ds lkFk leO;kIr gks] og mikf/k gSA tSls izd`r mnkgj.k eas
vknzsZU/kula;ksx mikf/k gSA bl mikf/k ls jfgr lEcU/k gh O;kfIr gksrh gSA

7- ekues;ksn; i`- 31
8- ekues;ksn; i` 41

103
 rdZ dk y{k.k & vuqeku esa rdZ dk vR;f/kd egRRo gSA izek.k ds }kjk lk/;eku tks
inkFkZ gS] mlesa vU;FkkRo dh “kadk gksus ij mlds fujkl ds fy;s ml vU;FkkRo esa
nks’kdFku gh rdZ gSA
izek.ksu lk/;ekuL; vFkZL; vU;FkkRo”kadk;ka rfUujklkFkZa vU;FkkRos nks’kdFkua rdZ%A9
rdZ ds ikap vax gSa & O;kfIrLrdkZizfrgfrjolkua foi;Z;sA
vfu’VkuuqdwyRos bfr rdkZaxiapde~AA10
vFkkZr~ rdZ ds ikap vax gSa & O;kfIr] rdkZizfrgfr] foi;Z;Ik;Zolku] vfu’VRo] vuuqdwYkRoA
vuqeku ds Hksn&
vuqeku ds rhu Hksn gSa & vUo;O;frjsfd] dsoykUof;] dsoyO;frjsfdA
1- vUo;O;frjsfd & ftl vuqeku esa vUo; O;kfIr vkSj O;frjsd O;kfIr nksuksa lEHko gksrh
gS] og vUo;O;frjsfd vuqeku gSA tSls iwokZsDr /kwe ls vfXu dk vuqekuA ogka nksuksa
O;kfIr;ka lEHko gSaA
2- dsoykUof; & tgka dsoy vUo; O;kfIr gh lEHko gS] og dsoykUof; vuqeku gSA tSls
& Kku KkukUrjizdk”; gS] oLrq gksus ds dkj.k] ?kV dh rjgA ;gka vUo; O;kfIr gh
lEHko gSA
3- dsoyO;frjsfd & ftl vuqeku esa dsoy O;frjsd O;kfIr gh lEHko gS] og dsoy
O;frjsfd vuqeku gSA tSls leLr Kku Loizdk”k gS] Kku gksus d dkj.kA ;gka dsoy
O;frjsd O;kfIr gh lEHko gSA
vuqeku ds nks Hksn vkSj gSa & LokFkZkuqeku vkSj ijkFkkZuqekuA viuh vuqfefr ds fy;s gksus
okyk vuqeku LokFkkZuqeku gSA nwljs dh vuqfefr ds fy;s gksus okyk vuqeku ijkFkkZuqeku gSA
ijkFkkZuqeku esa uS;kf;dksa ds vuqlkj ikap vo;o gksrs gSa & izfrKk] gsrq] mnkgj.k] miu;
rFkk fuxeuA blesa ehekaldksa ds vuqlkj izkjEHk ds rhu ;k vUr ds rhu gh xzkg~; gSaA

9- ekues;ksn; i` 42
10- ekues;ksn;] vuqeku [k.M

104
ehekaldksa ds vuqlkj izfrKk esa fuxeu vkSj gsrq esa miu; xrkFkZ gSA vRk% izfrKk] gsrq]
mnkgj.k ;k mnkgj.k] miu;] fuxeu & ;s rhu vo;o gh ehekaldksa us Lohdkj fd;s gSaA
vkHkkl &
ehekalk esa rhu izdkj ds vkHkkl ekus x;s gSa & izfrKkHkkl] gsRokHkkl vkSj n`’VkUrkHkklA
1- izfrKkHkkl & ijizfriknu ds fy;s lk/; dk i{ko`fRrRo:Ik tks opu gS] mls izfrKk
dgk tkrk gSA tSls & ioZrks vfXueku~] ;g izfrKk opu gSA izfrKkHkkl nks izdkj dk
gS & fl) fo”ks’k.k] ckf/kr fo”ks’k.k vkSj vizfl) fo”ks’k.kA blesa ckf/kr fo”ks’k.k ds 6
Hksn gSa & izR;{k ck/k] vuqeku ck/k] mieku ck/k] “kCn ck/k] vFkkZifRrck/k vkSj vHkko
ck/kA
2- gsRokHkkl & gsrq dk vkHkkl gsRokHkkl dgykrk gSA ;g pkj izdkj dk gSA
vfl)] fo#)] vuSdkfUrd] lk/kkj.kA
1- vfl) ds pkj izdkj gSa & Lo:ikfl)] O;kI;Rokfl)] vkJ;kfl)] lEcU/kkfl)A
2- fo#) & tSls “kCnks fuR;% d`rdRokr~A ;gka d`rdRo gsrq vfuR;Ro esa O;kIr gSA
3- vuSdkfUrd & ;s nks izdkj dk gS & lk/kkj.k rFkk lfUnX/kA
4- vlk/kkj.k & tSls i`Foh fuR;k xU/koRokr~A
3- n`’VkUrkHkkl & n`’VkUr dk vkHkkl n`’VkUrkHkkl dgykrk gSA n`’VkUr ds nks izdkj gSa &
lk/kE;Z n`’VkUr RkFkk oS/kE;Z n`’VkUrA blds dkj.k n`’VkUrkHkkl ds Hkh nks izdkj gks tkrs
gSa & lk/kE;Zn`’VkUrkHkkl vkSj oS/kE;Zn`’VkUrkHkklA
lk/kE;Zn`’VkUrkHkkl ds pkj izdkj gSa & lk/;ghu] lk/ku ghu] mHk;ghu] vkJ;ghuA
oS/kE;Zn`’VkUrkHkkl ds Hkh pkj izdkj gSa & lk/;kO;ko`RRk] lk/kUkkO;ko`Rr] mHk;kO;ko`RRk]
vkJ;ghuA
3- “kCn izek.k &

105
 “kCnizek dk tks dj.k gS] og “kCn izek.k gSA ekues;ksn; ds vuqlkj inksa dk Kku
gksus ij inkFkZ dk Lej.k gksrk gS rFkk rnuUrj vlfUud`’V okD;kFkZKku dks “kkCn izek
dgk tkrk gSA bl “kkCn izek eas dj.k “kCn gSA
r= rkor~ inSKkZrS% inkFkZLej.ks d`rsA
vlfUud`’VokD;kFkZKkua “kkCnferh;ZrsAA11
“kCn izek.k nks izdkj dk gS & ykSfdd rFkk oSfndA “kkCncks/k ds lEcU/k esa ehekaldksa esa
nks er izpfyr gSa &
1- vfHkfgrkUo;okn & dqekfjy HkV~V
2- vfUorkfHk/kkuokn & izHkkdj feJ
“kkCn cks/k esa lgdkjh :Ik esa pkj dkj.k ekus x;s gSa & 1- vkdka{kk 2- ;ksX;rk 3- vklfRr
vkSj 4- rkRi;ZKkuA
4- mieku izek.k &
n`”;eku inkFkZ ds lkn`”; ds vk/kkj ij Le;Zek.k vlfUud`’V xksxr tks lkn`”; dk
Kku gS] og mifefr gSA mldk dj.k mieku izek.k gSA
n`’;ekukFkZlkn`’;kr~ Le;Zek.kkFkZxkspje~A
vlfUud`’Vlkn`’;Kkua g~;qifefreZrkAA12
rkRi;Z ;g gS fd ftl O;fDr dks ;g ekywe ugha fd xo; dSlk gS] og dsoy xk; dks
tkurk gSA mls fdlh us crk;k fd xo; xk; dh rjg gksrk gSA ;g lqudj og O;fDr
taxy x;k vkSj ogka xo; esa xkslkn`”; ns[kdj mls ;g irk pyk fd xks esa Hkh blh
izdkj dk xo;lkn`”; gSA ;gka xo;xr xkslkn`”; dk Kku mieku izek.k rFkk xksxr
xo;lkn`”; dk Kku mifefr gSA

11- ekues;ksn;] “kCn izek.k] “yksd la 89

12- ekues;ksn;] mieku [k.M] 108

106
5- vFkkZifRr izek.k &
miik| Kku ls miiknd Kku gksrk gSA ;gka miik| Kku vFkkZifRr izek.k rFkk
miiknd Kku vFkkZifRr izek gSA
vU;FkkuqiiRR;k ;nqiiknddYiue~A
rnFkkZifRrfjR;soa y{k.ka Hkk’;Hkkf’kre~AA13
tSls ihuks nsonRrks fnok u HkaqDrs & ;gka fnokHkkstukHkkofof”k’V ihuRo ;g miik| Kku
gSA blls jkf=Hkkstu dh dYiuk ;g miiknd Kku vFkkZr~ izek gSA blds nks Hksn gSa &
n`’VkFkkZifRr RkFkk JqrkFkkZifRRkA

6- vHkko izek.k&
blh dk vij uke vuqiyfC/k Hkh gSA izHkkdj er esa ;g izek.k Lohdkj ugha fd;k x;kA
os vHkko dks vf/kdj.k:Ik ekurs gSaA HkkV~Verkuqlkj vHkko dk Kku vuqiyfC/k izek.k ls
gksrk gSA
izkek.; fopkj&
iwoZ ehekalk n”kZu esa Lor% izkek.; okn Lohdkj fd;k x;k gSA Kku vkSj rRxr izkek.;
nksuska dk xzkgd ,d gksus ij Lor%izkek.;okn rFkk nksuksa dk xzkgd vyx&vyx gksus ij
ijr% izkek.; ekuk tkrk gSA bl lEcU/k esa pkj nk”kZfudksa ds vyx & vyx er gSaA
U;k; er & izkek.; vkSj vizkek.; nksuksa ijr%
lka[; er & nksuksa Lor%
ehekalk er & izkek.; Lor% vizkek.; ijr%
ckS)er & vizkek.; Lor% izzkek.; ijr%
izes; fopkj&

13- ekues;ksn;] i` 116

107
dqekfjy HkV~V ds erkuqlkj 5 izes; Lohdkj fd;s x;s gSaA
1- nzO; & nzO; 11 gSa & i`Foh] ty] rst] ok;q] re] vkdk”k] dky] fnd~] vkRek] eu] “kCnA
2- xq.k & xq.k 24 gSa & :i] jl] xU/k] Li”kZ] la[;k] ifjek.k] i`FkDRo] la;ksx] foHkkx]
ijRo] vijRo] xq#Ro] nzoRo] Lusg] cqf)] lq[k] nq%[k] bPNk] }s’k] iz;Ru] laLdkj] /ofu]
IkzkdV~;] “kfDrA
3- deZ & deZ vFkkZr~ fØ;kA blds ikap izdkj gSa & mR{ksi.k] vi{ksi.k] vkdqapu] izlkj.k]
xeuA
4- tkfr & ;gh lkekU; gSA
5- vHkko & vHkko ds nks Hksn gSa & lalxkZHkko rFkk vU;ksU;kHkkoA lalxkZHkko rhu izdkj dk
gS & izkxHkko] iz/oal rFkk vR;UrkHkkoA
izHkkdj feJ ds vuqlkj 8 izes; gSa &
1- nzO; & nzO; 09 gSa & i`Foh] ty] rst] ok;q] vkdk”k] dky] fnd~] vkRek] euA
2- xq.k & xq.k 23 gSa & :i] jl] xU/k] Li”kZ] “kCn] ifjek.k] i`FkDRo] la;ksx] foHkkx] ijRo]
vijRo] xq#Ro] nzoRo] Lusg] laLdkj] cqf)] lq[k] nq%[k] bPNk] }s’k] iz;Ru] /keZ] v/keZA
3- deZ & deZ vFkkZr~ fØ;kA ;g ,d gh gSA mikf/k Hksn ls blds vusd izdkj gksrs gSaA
4- lkekU; & ;g nks izdkj dk gS & ij rFkk vij
5- “kfDr & ;g vusd izdkj dh gSA
6- la[;k & xf.krO;ogkj dh gsrq la[;k gS] tks ,dRo ls ysdj ijk/kZ Ik;ZUr gSA
7- lkn`”; & ;g vusdfo/k gS
leok; & ;g ,d izdkj dk gSA
ehekalk n”kZu ds vuqlkj osn ds ikap Hkkx fd;s x;s gSa & fof/k] eU=] uke/ks;] fu’ks/k]
vFkZoknA
vk/kqfud U;k; O;OkLFkk esa ehekalk n”kZu ds v/kksfyf[kr fl)kUrksa dh Hkh
mi;ksfxrk fn[kykbZ iM+rh gSA

108
1- rkRi;Z cks/kd fyax& rkRi;Z dk fu.kZ; djus ds fy;s ehekalk n”kZu esa Ng fyax cryk;s
x;s gSaA
miØeksilagkjkoH;klks·iwoZrk Qye~A
vFkZoknksiiRrh p fyax rkRi;Zfu.kZ;sAA
1- miØeksilagkj 2- vH;kl 3- viwoZrk 4- Qy 5- vFkZokn 6- miifRr
1& buesa igyk gS miØeksilagkjA ;g fu;e gS fd ftl izdkj dk miØe
jgrk gS] mlh ds vuqlkj milagkj Hkh gksuk pkfg;sA ehekalk n”kZu dk ;g U;k; gS fd
miØe ds vuqlkj milagkj dh dYiuk dh tkrh gS] milagkj ds vuqlkj miØe ds vFkZ
dks ugha cnyk tkrkA mnkgj.kkFkZ miØe esa vXus_ZXosn%] ok;ks;ZtqoZsn%] vkfnR;kr~
lkeosn%A ;g okD; vkrk gSA ;gka osn “kCn dk mPpkj.k gSA osn dk vFkZ gksrk gS
eU=czkg~e.kkREkd osnHkkxA nwljh rjQ milagkj esa mPpS_Zpk fØ;rs] mika”kq ;tq’kk] mPpS%
lkEuk] ,slk okD; feyrk gSA milagkj esa _d~ “kCn dk iz;ksx gSA _d~ dk vFkZ gS
_Xosn dk eU=A vc ;gka ;g iz”u mBrk gS fd D;k milagkj ds _d~] ;tq’k~ rFkk lke
in ds vuqlkj miØeLFk _Xosn] ;tqoZsn RkFkk lkeosn in dk vFkZ dsoy _d~] ;tq’k~
rFkk lke dj fn;k tk;s ;k fQj miØeLFk osn Ikn ds vuqlkj milagkjLFk _d~] ;tq’k~]
lke dk vFkZ Øe”k% _Xosn] ;tqoZsn rFkk lkeosn fd;k tk;sA miØe izcy gksxk ;k
milagkjA ;gka iwoZi{kh dgrs gSa fd bl izlax esa miØe esa vFkZokn okD; vkrk gS rFkk
milagkj eas fof/kokD; vkrk gSA vFkZokn rFkk fof/k esa fof/k izcy gksrh gS rFkk vFkZokn
nqcZyA blfy;s iwoZi{k ds vuqlkj milagkj izcy gksxk rFkk miØe nqcZyA
bl ij fl)kUrh dk dFku gS fd vlatkrfojksf/k U;k; ls miØe izcy gksxk rFkk
milagkj nqcZyA miØe dk mYys[k igys vkus ds dkj.k miØe vlatkrfojksf/k gSA
vFkkZRk~ miØe ds le; mldk fojks/kh milagkj mRiUUk ugha gqvk FkkA tcfd milagkj ds
le; mldk fojks/kh miØe mRiUu gks x;k Fkk] blfy;s milagkj latkrfojks/kh gSA
blfy;s miØeLFk osn “kCn ds vuqlkj milagkjLFk _d~ dk vFkZ _Xosn fd;k tk;sxkA
blh rjg ;t’k~ dk vFkZ ;tqoZsn vkSj lke dk vFZk lkeosn fd;k tk;sxkA

109
 2& vH;kl& vH;kl dk vFkZ gS & ckj ckj dFkuA lfe/kks ;tfr] bMks ;tfr]
cfg;Ztfr] ruwuikra ;tfr] Lokgkdkja ;tfr & bu ikapksa okD;ksa esa ikap ckj ;tfr dk
iz;ksx vk;k gSA blls ;g fl) gksrk gS fd ;s ikap vyx vyx ;kx gSaA deZHksn ds
lgdkjh Ng izek.kksa esa vH;kl Hkh ,d izek.k gSA
3& viwoZrk & vU; izek.k ls vKkr inkFkZ dks viwoZ dgk tkrk gSA viwoZ Hkh
rkRi;Z xzkgd fyax gSA
4& Qy & Qy ls Hkh rkRi;Z dk xzg.k gksrk gSA ehekaldksa dks Qyizek.koknh
dgk tkrk gSA
5& vFkZokn & vDrk% “kdZjk% min/kkfr & bl fof/k esa vDrk% dk vFkZ Li’V ugha
gks ikrk gS fd fdl nzo inkFkZ ls “kdZjk ¼ik’kk.k [k.M½ vDr ¼xhys½ gksaA blds vkxs
vFkZokn vkrk gS & rstks oS ?k`re~A ;gka ?k`r dh iz”kalk dh x;h gSA blfy;s ;g fu.kZ;
gks tkrk gS fd “kdZjk ?k`r ls gh vDr gksxhA
6& miifRRk & miifRRk dk vFkZ gS ;qfDrA ehekalk eas cryk;s x;s 1000 U;k;ksa
dks ;qfDr dgk tkrk gSA bu U;k;ksa ls rkRi;Z dk Kku gksrk gSA
2- vaxkafxcks/kd izek.k& ehekalk n”kZu esa vaxkafxHkko dk cks/k djus ds fy;s Ng lgdkjh
izek.k ekus x;s gSaA vax rFkk iz/kku ds lEcU/k dk cks/k djkus okyh fof/k fofu;ksx
fof/k gSA fofu;ksx fof/k dk y{k.k gS & vaxiz/kkulEcU/kcks/kdks fof/k% fofu;ksxfof/k%A
tSls & n/uk tqgksfr & ;g fofu;ksx fof/k gSA fofu;ksx fof/k ds lgdkjh Ng izek.k
gSa;s Ng izek.k gSa & Jqfr] fyax] okD;] izdj.k] LFkku] lek[;kA bu Ng izek.kksa eas iwoZ
iwoZ izek.k izcy gSa rFkk mRrj mRrj nqcZYkA bl Ng izek.kksa esa iwoZ iwoZ izcy gS rFkk
mRrjksRrj nqcZyA
¼d½ Jqfr& fujis{k “kCn dks Jqfr dgk tkrk gSA
fujis{kks jo% Jqfr%A

110
;g rhu izdkj dh gksrh gSA fo/kk=h] vfHk/kk=h rFkk fofu;ksD=hA fofu;ksD=h Jqfr ds rhu
Hksn gSa & foHkfDr:ik] lekukfHk/kku:ik rFkk ,din:ikA ozhfgfHk;Ztsr] ozhghUk~ izks{kfr]
ozhghu~ vogfUr] vkgouh;s tqgksfr] v#.k;k fiaxk{;k ,dgk;U;k xok lksea Øh.kkfrA ;s lHkh
foHkfDr:ik Jqfr ds mnkgj.k gSaA Ik”kquk ;tsr esa ,dRo rFkk iqaLRo lekukfHk/kku Jqfr ds
}kjk dj.k dkjd ds vax curs gSaA ;tsr ;gka ,din:ik Jqfr ds }kjk vk[;kr ls
vfHkfgr gksus okyh la[;k ;kx dk vax curh gSA
¼[k½ fyax &“kCnlkeF;Za fyaxe~A “kCn esa jgus okys vfHk/kk:ih lkeF;Z dks fyax dgk tkrk
gSA lkeF;Za loZ”kCnkuka fyaxfeR;fHk/kh;rsA
tSls &cfgZnZsolnua nkfe& ;gka ij nkfe bl “kCn ds lkeF;Z ls ;g eU= dq”k dkVus dk
vax curk gSA fyax izek.k nks izdkj dk gS & lkekU;lEcU/k cks/kd izek.k dh vis{kk j[kus
okyk rFkk lkekU; lEcU/k cks/kd izek.k dh vis{kk u j[kus okykA
¼x½ okD; & vax vkSj vaxh dk lefHkO;kgkj okD; dgykrk gSA
lefHkO;kgkjks okD;e~A
tSls & ;L; i.kZe;h twgwHkZofr] u l ikia “yksda “k`.kksfrA ftldh twgw iyk”k dh cuh gksrh
gS] og ;teku dHkh vidhfrZ ugha lqurkA ;gka lefHkO;kgkj ds dkj.k i.kZrk twgw dk vax
curh gSA
¼?k½ izdj.k& vax dks vaxh dh vkdka{kk rFkk vaxh dks vax dh vkdka{kk] bl izdkj
mHk;kdka{kk izdj.k dgykrk gSA bldk y{k.k gS &
mHk;kdka{kk izdj.ke~A
;g nks izdkj dk gS & egkizdj.k rFkk vokUrj izdj.kA iz;kt vkfn egkizdj.k ls
n”kZiw.kZekl ds vax curs gSaA vax ds Hkh tks vax gSa] os vokUrj izdj.k ls vax curs gSaA
vokUrj izdj.k esa lana”k ds ek/;e ls vaxkafxHkko curk gSA
¼³½ LFkku &ns”klkekU;a LFkkue~A ;g nks izdkj dk gS & ikBlkns”; rFkk vuq’Bkulkns”;A

111
ikBlkns”; nsk izdkj dk gS & ;Fkkla[; ikB rFkk lfUuf/k ikBA bUnzkXuh jkspuk fno%
bR;kfn eU= dk ;Fkkla[; ikB ls vaxRo gksrk gSA viwoZ vaxksa dk fod`R;axRo lfUuf/k ikB
ls gksrk gSA Ik”kq/keksZa dk vXuh’kskeh; ;kxkaxRo vuq’Bku lkns”; ds dkj.k gksrk gSA
¼p½ lek[;k& ;kSfxd “kCn dks lek[;k dgk tkrk gSA
lek[;k ;kSfxd% “kCn%A
;g nks izdkj dh gS & ykSfdd rFkk oSfndA gksr`pel ;g oSfndh lek[;k gSA vk/o;Zoe~
;g ykSfdd lek[;k gSA
3- Øecks/kd izek.k& Øecks/kd fof/k dks iz;ksx fof/k dgk tkrk gS ;k fQj iz;ksx
izk”kqHkko cks/kd fof/k iz;ksx fof/k dgykrh gSA
iz;ksxizk”kqHkkocks/kdks fof/k% iz;ksxfof/k%A
fdlh Hkh vuq’Bku dks djrs le; lHkh vaxksa dks ,d ds ckn ,d vuq’Bku djuk pkfg;sA
foyEc ls vaxksa dk vuq’Bku djus esa dksbZ izek.k ugha gSA vr% iz;ksx izk”kqHkko vFkkZr~
vfoyEc dk fo/kku Hkh inkFkZ ds fo”ks’k.k ds :Ik esa iz;ksx fof/k ds }kjk fd;k tkrk gSA
forfr fo”ks’k ;k ikSokZi;Z dks Øe dgk tkrk gSA blds lgdkjh Ng izek.k gSa & Jqfr] vFkZ]
ikB] LFkku] eq[; rFkk izo`fRRkA bu Ng izek.kksa eas iwoZ iwoZ izek.k izcy gSa rFkk mRrj mRrj
nqcZYkA
¼d½ Jqfr & Øecks/kd opu dks Jqfr dgk tkrk gSA
Øeijopua Jqfr%A
;g nks izdkj dh gSA dsoy Øe cks/kd rFkk Øe fof”k’V inkFkZ cks/kdA tSls & osna d`Rok
osfna djksfr ;g dsoy Øe cks/kd Jqfr gSA o’kV~drqZ% izFkeHk{k% & ;g Øe fof”k’V inkFkZ
cks/kd Jqfr gSA
¼[k½ vFkZ& tgka iz;kstu ds vuqlkj inkFkksaZ ds Øe dk fu.kZ; fd;k tkrk gS] mls vFkZ Øe
dgk tkrk gSA

112
;= iz;kstuo”ksu vFkZfu.kZ;% l vFkZØe%A
tSls & vfXugks=a tqgksfr rFkk ;okxwa ipfr & ;gka ij ikB Øe dks ekusa] rks igys
vfXugks= gkse gksxk] ckn esa ;okxw ikd gksxkA fdUrq iz;kstu ds vuqlkj tc Øe dk fu.kZ;
djrs gSa] rks igys ;okxw dk ikd gksrk gS] ckn esa mlh ;okxw ls vfXugks= gkse gksrk gSA
¼x½ ikB& inkFkZcks/kd okD;ksa dk tks Øe gS] og ikB Øe dgykrk gSA
inkFkZcks/kdokD;kuak ;% Øe% l ikBØe%A
;g nks izdkj dk gS & eU= ikB vkSj czkg~e.k ikBA eU=ksa ds ikB dk tks Øe gS] og eU=
Øe dgykrk gSA tSls vkXus; vkSj vXuh’kkseh; ;kx esa tks Øe gksrk gS] og eU= ikB ls
gksrk gSA blh izdkj czkg~e.k xzUFkksa ds ikB dk tks Øe gS] og czkg~e.k ikB dgykrk gSA
tSls iap iz;ktksa dk tks Øe gS] og czkg~e.k ikB ls gksrk gSA
¼?k½ LFkku &LFkkua uke mifLFkfr%A izd`rkS ukukns”kkuka inkFkkZuka fod`rkS opuknsdfLeu~ ns”ks
vuq’Bkus drZO;s ;L; ns”ks vuq’Bh;Urs] rL; izFkee~ vuq’Bkue~ brj;ks% Ik”pkr~A
izd`fr ;kx T;ksfr’Vkse esa rhu ;kx gksrs gSa & vXuh’kkseh;] louh; vkSj vkuqcU/;A tc ogka
ls fod`fr esa ;kx izkIr gksrs gSa] rks bu rhuksa dk vuq’Bku ,d gh LFkku ij djuk izkIr
gksrk gS] ml fLFkfr esa ftl LFkku ij budk vuq’Bku gksrk gS] mlls lEcfU/kr ;kx igys
gksrk gSA tSls bu rhuksa dk fod`fr esa louh; ns”k esa vuq’Bku gksrk gS] rks louh; ;kx
igys gksxk vkSj vU; nksuksa ;kx ckn esaA ;gh LFkku Øe gSA
¼³½ eq[;Øe& izz/kku ds Øe ls vaxksa dk tc Øe fu/kkZj.k gksrk gS] mls eq[;Øe dgk
tkrk gSA
iz/kkuØes.k vaxkuka ;% Øe% l eq[;Øe%A
tSls ,sUnz ;kx vkSj vkXus; ;kx esa tks iz/kku dk Øe gS] mlh Øe ls muds vax vFkkZr~
vkXus; gfo dk vfHk?kkj.k vkSj ,sUnz gfo dk vfHk?kkj.k fd;k tkrk gSA ;g eq[;Øe gSA

113
¼p½ izo`fRRk Øe& tc vusd inkFkksaZ ij vusd /keksZa dk vuq’Bku djuk gksrk gS] ml le;
izFke vuqf’Br /keZ ds vuqlkj gh f}rh;kfn /keksZa dk vuq’Bku gksrk gS] rks mls izo`fRRk Øe
dgk tkrk gSA
lg iz;qT;ekus’kq iz/kkus’kq lfUuikfrukeaxkuke~ vko`R;kuq’Bkus drZO;s f}rh;kfninkFkkZuka
izFkekuqf’BrinkFkZØekr~ ;% Øe% l izo`fRRkØe%A
tSls izktkiR; Ik”kq ;kx esa 17 Ik”kqvkas esa Øe”k% mikdj.k] fu;kstu vkfn vaxksa dk vuq’Bku
gksrk gS] ml fLFkfr esa izo`fRr Øe ds vuqlkj izFke vazx mikdj.k ftl Ik”kq ls izkjEHk
djds ftl Øe ls gksrk gS] mlh Ik”kq ls izkjEHk djds mlh Øe ls f}rh; fu;kstu vkfn
vaxksa dk Hkh vuq’Bku gksrk gSA
4- vFkkZifRr izek.k& ehekalk n”kZu esa vFkkZifRr izek.k dks vR;Ur egRRoiw.kZ izek.k ekuk
x;k gSA viwoZ dh flf) blh izek.k ls gksrh gSA bl izek.k dk fo”ks’k fu:i.k iwoZ esa
fd;k x;k gSA
5- Åg&Åg dk y{k.k gS & vfrfn’VL; inkFkZL; dk;Zo”kkr~ :ikUrjdj.ke~ Åg%A blds
rhu Hksn gSa & eU=ksg] lkeksg rFkk laLdkjksgA tSls & tSls *vXu;s tq’Va fuoZikfe* ds
LFkku ij lkS;Z;kx esa *lw;kZ; tq’Va fuoZikfe* ;g iz;ksx gksrk gSA ;g eU=ksg gSA lke
esa gksus okyk Åg lkeksg dgykrk gSA fod`fr esa ozhfg ds LFkku ij uhokj uked /kkU;
jgrk gSA ogka fod`fr esa uhokj dk Hkh LakLdkj mlh rjg ls fd;k tkrk gS] tSlk fd
izd`fr esa ozhfg dk laLdkj gqvk FkkA ;g laLdkjksg gSA
6- Ckk/k&ck/k dk y{k.k gS & iz;kstukHkkokfnuk vaxkukeuuq’Bkue~A iz;kstu u gksus ij
vaxksa dk vuq’Bku u gksuk gh ck/k gSA tSls d`’.ky p# esa rq’kfoeksd :ih iz;kstu u
gksus ds dkj.k vo?kkr dk ck/k gksrk gSA ck/k ds rhu Hksn gSa & vFkZyksi ls] izfr’ks/k ls
rFkk izR;kEuku lsA d`’.ky p# esa vo?kkr dk tks ck/k gS] og vFkZyksi ds dkj.k gksus
okyk ck/k gSA *egkfir`;Ks u gksrkja o`.khrs* bl okD; esa oj.k dk fu’ks/k gksus ds dkj.k
ck/k gksrk gSA bls izfr’ks/k d`r ck/k dgk tkrk gSA lkekU;r;k fod`fr ;kx esa izd`fr

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 ls dq”k dk vfrns”k vkrk gSA ysfdu lksekjkSnz uked fod`fr esa dq”kk ds LFkku ij “kj
dk fo/kku gSA vr% ;gka izR;kEuku ls dq”kk dk ck/k gksrk gSA
7- rU=&rU= dk y{k.k gS & ,dsUkSo ld`r~ izofrZrsu cgwuka iz/kkukukeqidkj%A ,d ckj gh
vax dk vUkq’Bku djus ls ;fn ml vax dk midkj vusd iz/kkuksa esa pyk tkrk gS] rks
mls rU= dgk tkrk gSA tSls iw.kZekl ds rhu iz/kkuksa esa iz;ktkfn vaxksa dk vuq’Bku
,d ckj gh fd;k tkrk gSA ,d ckj vuqf’Br iap iz;ktksa ls rhuksa iz/kkuksa esa midkj
pyk tkrk gSA
8- izlax &vU;r% midkjykHkkr~ vaxkukeuuq’Bkua izlax%A vU; izdkj ls ;fn midkj fey
tkrk gS] rks vaxksa dk vuq’Bku ugha fd;k tkrkA tSls Ik”kq ;kx ds vaxksa dk izlax ls
Ik”kq iqjksMk”k esa Hkh midkj gksrk gSA
9- vfrns”k &vfrns”k dk y{k.k gS & ;su izek.ksu izd`rkS ifBrkuke~ vaxkuka
izd`frln`”kfod`fr’kq izkfIr% Hkofr] rr~ izek.ke~A ftl izdkj izd`fr ;kx fd;k tkrk gS]
mlh izdkj fod`fr ;kx dk Hkh vuq’Bku djuk pkfg;sA izd`fron~ fod`fr% drZO;k &
;g vfrns”k gSA tgka lEiw.kZ vaxksa ds lfgr iz/kku dk fUk:i.k gS] og izd`fr dgykrh
gSA tgka lEiw.kZ vaxksa dk fu:i.k ugha gksrk] og fod`fr gSA fod`fr esa tks vax ugha
gksrs] mudk izd`fr ls vfrns”k gksrk gSA vfrns”k rhu izdkj dk gS &
izR;{kopukfrns”k] ukekfrns”k] vuqferopukfrns”kA *lekue~ brjRk~ “;susu* ;g
izR;{kopukfrns”k gSA vfXugks=a tqgksfr ls fofgr fuR; vfXugks= ls ekle~ vfXugks=a
tqgksfr bl okD; ls fofgr gkse esa vfrns”k tkrk gSA ;g ukekfrns”k gSA
vuqferopukfrns”k dks gh fo”ks’kkfrns”k dgk tkrk gSA tSls & vkXus; ;kx ls lkS;Z
;kx esa vfrns”k vkrk gSA ogka fuokZi] vkS’k/knzO;dRo] ,dnsorkRo] rf)rsu nsorkfunsZ”k
& bu fyaxksa ls vfrns”k vkrk gSA ;g fo”ks’kkfrns”k gSA bl izlax esa Li’V fyax]
vLi’V fyax] izcy fyax vkfn dk fu:i.k gSA
10- fu’ks/k ,oa i;qZnkl && vUkFkZ dkjd inkFkksZa ls fuo`fRRk djkuk gh fu’ks/k dk iz;kstu
gSA TkSls & ek fgaL;kr~ lokZf.k Hkwrkfu] u dyata Hk{k;sr~A fof/k dk ;g LoHkko gS fd
og Js;Ldj inkFkZ esa gh izo`fRr djkrh gS] vfu’V esa ughaA vfu’V inkFkZ ls fuorZuk

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 djus okys okD;ksa dks fu’ks/k okD; dgk tk ldrk gSA fu’ks/k okD;ksa esa lkekU;r;k
u´FkZ dk vUo; fØ;k ds lkFk gksrk gSA bls izlT; izfr’ks/k dgk tkrk gSA ysfdu
tc fØ;k ds lkFk vUo; esa dksbZ ck/kk gksrh gS] rks rn~fHkUu inkFkZ ds lkFk u´FkZ dk
vUo; gksrk gSA bls Ik;Zqnkl dgrs gSaA
izfr’ks/k% l foKs;% fØ;;k lg ;= u´~A
Ik;Zqnkl% l foKs;% ;=ksRrjinsu u´~AA
fØ;k ds lkFk u´FkZ ds vUo; esa nks izdkj ls ck/kd gks ldrs gSa &
¼1½ miØe& rL; ozre~ bl miØe dks vkjEHk djds *us{ksrks|UrekfnR;e~* ,slk
okD; vkrk gSA bl okD; esa ;fn izlT; izfr’ks/k ekusa] rks miØe *rL; ozre~* ds
lkFk fojks/k gksxkA D;ksafd miØe esa rks Lukrd ds ozrksa dk fo/kku fd;k tk jgk gS
vkSj vkxs fu’ks/k okD; vkus ls miØe ds lkFk fojks/k gksxkA blfy;s us{ksr okD; esa
Ik;qZnkl ekuk tkrk gSA Ik;qZnkl ekudj us{ksr okD; dk vFkZ gksxk &
vkfnR;fo’k;de~ vuh{k.kladYia dq;kZr~A
¼2½ fodYiizlfDr & dHkh dHkh fodYi dh izkfIr gksus ij Hkh Ik;qZnkl ekuuk
iM+rk gSA tSls & ;tfr’kq ;s ;tkega djksfr] ukuq;kts’kq & ;gka ij ;tfr esa ;s
;tkegs okD; izkIr gksrk gS vkSj vuq;kt esa fu’ks/k gSA bl rjg vuq;kt esa ;s
;tkegs dh izkfIr vkSj fu’ks/k & nksuksa gksus ls *rqY;cyfojks/ks fodYi%* fu;e ds
vuqlkj vuq;kt esa ;s ;tkegs dk fodYi izkIr gksrk gSA fodYi ekuus ij vkB nks’k
vkrs gSaA vr% ;gka Ik;qZnkl ekudj ;g vFkZ fd;k tkrk gS & vuq;ktO;frfjDrs’kq
;tfr’kq ;s ;tkega djksfrA
11- y{k.kk & lk{kkr~ ladsfrr vFkZ dk cks/k vfHk/kk ds }kjk gksrk gSA vfHk/kk ekuus esa tc
dksbZ ck/kk vkrh gS] rks y{k.kk o`fRr ls vFkZ cks/k gksrk gSA vfHk/kk ls eq[;kFkZ dk ck/k
gksus ij y{k.kk o`fRRk yxrh gSA y{k.kk ekuus ds nks dkj.k gSa & vUo;kuqiifRRk rFkk
rkRi;kZuqiifRRkA tSls *dkdsH;ks nf/k j{;rke~* bl mnkgj.k esa rkRi;kZuqiifRRk ds dkj.k
y{k.kk ekuh tkrh gSA blh izdkj *xaxk;ka ?kks’k% bl mnkgj.k eas vUo;kuqiifRr ds
dkj.k y{k.kk ekurs gSaA

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12- lkeF;Z & /keZ esa vkB izek.k ekus x;s gSa & fof/k] eU=] uke/ks;] vFkZokn] Le`fr]
vkpkj] okD;”ks’k] lkeF;ZA bu vkB izek.kksa esa lkEkF;Z Hkh ,d izek.k gSA tSls & lzqos.k
vo|fr] Lof/kfruk vo|fr & bR;kfn LFkyksa ij lkeF;Z ds vk/kkj ij ;g fu.kZ; gksrk
gS fd tks nzo inkFkZ gSa] mudks lzqok vkfn ls mBk;k tk ldrk gSA blh rjg tks Bksl
inkFkZ gSa] muds fy;s Lof/kfr dk iz;ksx gksrk gSA ;g fu.kZ; lkeF;Z ds vk/kkj ij
fd;k tk ldrk gSA
13- vuq’kax & bls vuqo`fRr Hkh dgk tk ldrk gSA osn eas eU= vkrk gS & ;k rs vXus
v;k”k;k ruwoZf’kZ’Bk xg~ojs’BkA mxza opks viko/khRLokgkA ;k rs vXus jtk”k;kA ;k rs
vXus gjk”k;kA bl eU= esa *;k rs vXus jtk”k;k* vkSj *;k rs vXus gjk”k;k* esa
*ruqoZf’kZ’Bk---* vkfn dh vuqo`fRr ;k vuq’kax vkrk gSA
14- v/;kgkj & ,d “kCn ds Jqr gksus ij vU; “kCn dh dYiuk v/;kgkj dgykrk gSA
tSls & *}kje~* ;g lquus ij *fi/ksfg* bldh dYiuk v/;kgkj gSA

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 MIMANSA*
It is necessary that the body of experts from the field of Sanskrit, philosophy
and law should be setup by the institutions and including law institutes and other
organizations to start work on Bhartiya Vidhisasra and make an endeavor covering
various perspective, dimension, usability and applicability of Bharitya literaturein,
the field of law and legal practice.
We need textbooks, academic field books, expertization, research and
synthesis of our Bhartiya traditions including Vadic traditions – based system for
progressive construction to rejuvenate the social cultural and legal metrics on Bharat.
This is a practical age. We must make our Sanskrit literature (or
at least that part of it which is rational and logical) connected with
practical life, otherwise it will remain sterile. One way to do this is to start
using Mimansa principles in our law Courts.
Our culture is very rich. However, it must be also pointed out that
part of our old culture and our Sanskrit Literature needs (Parishkar),
though of course there is also a part which is rational and very great.
We must therefore use our intelligence to Parishad the outmoded,
while encouraging and promoting the useful and rational part.
However, the Mimansa system contains principles of interpretation, which are very
rational and logical, and this part should be promoted and used in our law Courts.

ehekalk
;Kksa esa vkus okyh O;kogkfjd dfBukb;ksa ds lek/kku ds fy, ehekalk fl)karksa dh jpuk
dh xbZA
;K djus ds fu;e 'kriFk] ,srjs;] rSrjs; vkfn }kjk fyf[kr ^^czkã.k^^ iqLrdksa esa ladfyr gSaA
bu xzaFkksa esa cgqr lkjh my>usa Fkha] blfy, /kkfeZd dfBukb;ksa dks gy djus ds fy,
ehekalk fl)karksa dk fodkl fd;k x;kA
ehekalk ds ;s fl)kar rdZlaxr vkSj rkfdZd gSa] blfy, bUgsa fof/k] O;kdj.k] rdZ vkSj
n'kZu esa ç;ksx fd;k tkrk jgk gSA
gekjh ehekalk O;k[;k ^^eSDlosy^^ ls dgha vf/kd xgjh gSA
if'peh yksx ;g dke 200 o"kksZa ls dj jgs gSa] ge yksx yxHkx 2500 o"kksZa ls bldks
dke dj jgs gSaA
ehekalk O;k[;k ds fl)karksa dks lcls igys tSfeuh us vius lw=ksa esa LFkkfir fd;k FkkA
500 bZlk iwoZ esa tSfeuh lw= of.kZr o laxzfgr gSA
^^'kHkz Hkk";^^ dks NksMd
+ j vU; dbZ Vhdk,¡ fy[kh xbZa ysfdu yqIr gks xbZaA
^^dqekfjy Hkê^^ dk foLrkj ^^'kHkz^^ esa gSA
rRi”pkr~ ikFkZlkrhZ feJk ^^dqekfjy^^ ij fVIi.kh djrs gSa
tkfeuh us Lo;a bl ehekalk ij 8 vkpk;Z dks ^^iwoZ i{k^^ dgk gSA

118
As for as Bhartiya School’s of Philosophy are concerned it can be explained by
following chart prepared by Madhwacharya:-
loZn”kZu laxzg

Mimansa is one of the six orthodox schools of Hindu philosophy, primarily concerned
with the interpretation of the Vedas, especially the Brahmanas, which contain detailed
instructions for performing rituals.
The principles of Mimansa are rational, logical, and systematic, and they have been used
for over 2500 years to interpret religious and legal texts.
The Mimansa system was systematized by Jaimini in his Mimansa Sutras around 500
B.C. These sutras are concise and require extensive commentary, which was provided
by scholars like Shabara Swami, Kumarila Bhatta, and Prabhakar Mishra.
The principles were later used by renowned jurists like Vijnaneshwara (author of
Mitakshara), Jimutvahana (author of Dayabhaga), and others to interpret Hindu legal
texts, particularly when there were conflicts or ambiguities in the Smritis (ancient legal
texts).

119
The Mimansa principles were also used to resolve practical difficulties in performing
yagyas, as the rules for these rituals were often ambiguous or conflicting.
The Mimansa Principles of Interpretation, as laid down by Jaimini
around the 5th century B.C. in his sutras and as explained by Sabar,
Kumarila Bhatta, Prabhakar, Mandan Mishra, Shalignath, Parthasarathy
Mishra, Apadeva, Shree Bhat Shankar, etc. were regularly used by our
renowned jurists like Vijneshwara (author of Mitakshara), Jimutvahana
(author of Dayabhaga), Nanda Pandit (author of Dattaka Mimansa), etc.
whenever there they found any conflict between the various Smritis, e.g.,
Manusmriti and Yajnavalkya Smriti, or ambiguity, ellipse or absurdity in
any Smriti. Thus, the Mimansa principles were our traditional system of
interpretation of legal texts. Although originally they were created for
interpreting religious texts pertaining to the Yagya (sacrifice), they were
so rational and logical that gradually they came to be utilized in law,
philosophy, grammar, etc., that is, they became of universal application.
Thus, Shankaracharya has used the Mimansa Adhikaranas (principles) in
his bhashya on the Vedanta sutras. Rajbir Singh Dalal (Dr.) V. Chaudhari
Devi Lal University, Sirsa and Another {(2008) 9 SCC 284}, Para-19.

The Mimansa principles were regularly used by our great jurists for
interpreting legal texts (see also in this connection P.V. Kane's' History
of the Dharmashastra', Vol. V, Pt. II, Ch. XXIX and Ch. XXX, pp. 1282-
1351).

The Rule of Interpretation of Hindu Law with special reference to the Mimansa
Aphorisms as applied to Hindu Law. This subject cannot be better introduced than in
the language of Sir John Edge, C.J., who with reference to a question of Hindu Law
arising before him, observed as follows:-
"The question is how is the text of Vasistha to be construed. It must clearly be
construed according to the rules for the construction of the texts of the sacred
books of the Hindu Law, if authoritative rules on the subject exist. That rules
for the construction of the sacred texts and law of the Hindus do exist cannot
be disputed, although those rules have been frequently overlooked or not
referred to by Judges or English text writers, probably because they are in
Sanskrit and have, so far as I am aware, not yet been translated. That they are
rules of the highest authority is obvious from the manner in which they have
been referred to by Mr. Colebrooke.” (ILR 14 All. P-70)
Mr. Colebrooke treats of the Mimansa Aphorisms in one of his Miscellanceous
Essays, Vol. 1, P-342. The following short extract from this Essay will show the
high importance he attaches to the Mimansa Aphorisms as regards the
interpretation of the Hindu Law:-
"A case is proposed either specified in Jaimini's text or supplied by his
scholiasts. Upon this a doubt or question is raised, and a solution of it is
suggested, which is refuted and a right conclusion established in its stead.
The disquisitions of the Mimânsă bear, therefore, a certain resemblance to
judicial questions; and, in fact, the Hindu Law being blended with the

120
 religion of the people the same modes of reasoning are applicable and are
applied to the one as to the other. The logic of the Mimânsâ is the logic of the
law-the rule of interpretation of civil and religious ordinances. Each case is
examined and determined upon general principles; and from the cases
decided, the principles may be collected. A well-ordered arrangement of
them would constitute the philosophy of the law, and this is, in truth, what
has been attempted in the Mimansa."
(Colebrooke’s Misc. Essays Vol 1 Page-342)

Prof. Max Muller in his book on the Six Systems of Indian Philosophy Page-275,
speaks of the Mimansa Shastras in the same strain as follows:-
"We may wonder why Purva-Mimânsâ should ever have been raised to the
rank of a philosophical system by the side of the Uttar-Mimânsă or the
Vedanta, but it is its method rather than the Prof. Max Muller matter to
which it applied, that seems to have invested it on Mimansa. with a certain
importance. This Mimansa method of discussing questions has been adopted
in other branches of learning also, for instance, by the highest legal
authorities in trying to settle contested questions of law. We meet with it in
other systems of philosophy also as the recognized method of discussing
various opinions before arriving at a final conclusion."
(The Six system of Indian Philosophy Page-275)

In England, books on Interpretation of law deal with the interpretation of Statute

Law. One of the earliest works of this kind was the work of Sir Fortunatus Dwarris,
which was published about the middle of the nineteenth century, this work with that of
the American Jurist Mr. Sedgwick, and the book written by Henry Hardcastle, were for
some time the leading works on the subject of interpretation. Mr. Wilberforce’s work
on the interpretation of statutes is a valuable addition to the literature on the subject.
But the work which is mostly resorted to at the present day as an authority on
interpretation is that by Sir Peter Benson Maxwell, the 3rd edition of which is by Mr. A.B.
Kempe.
MIMAMSA SASTRA
The importance of the Mimamsa Sastra in the study of the works on Dharma
Sastra has been accepted from very early times. "In fact the principles of Mimamsa form
the very background of our Dharma Sastra. All the rules of our Dharma Sastra have to
be interpreted with the help of the Mimamsa Nyayas. So, a Dharma Sastrin has
necessarily to become a Mimamsaka first. Thus, almost all the writers on Dharma Sastra
from Manu down to the present day have been good Mimamsakas also." (Pages Critical
Bibliography of Mimamsa by Mm. Dr. Umesha Mishra-appended to Mm. Dr. Sir
Ganganatha Jha's Purva Mimamsa in its sources, 1942. University).

In the matter of Mahaveer Prasad Dwivedi (AIR 1992 All. 351), High Court
strongly observed.

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 “It is deeply regrettable that in our Courts of law lawyers quote Maxwell and
Craies but nobody refers to the Mimansa Principles of Interpretation. Most
lawyers would not have even heard of their existence. Today our so-called
educated people are largely ignorant about the great intellectual
achievements of our ancestors and the intellectual treasury which they have
bequeathed us. The Mimansa Principles of Interpretation is part of that great
intellectual treasury, but it is distressing to note that apart from the reference
to these principles in the judgment of Sir John Edge, the then Chief Justice of
Allahabad High Court, in Beni Prasad v. Hardai Bibi, 1892 ILR 14 All 67 (FB),
a hundred years ago there has been almost no utilization of these principles
even in our own country. Many of the Mimansa Principles are rational and
scientific and can be utilized in the legal field (see in this connection K.L.
Sarkar's 'Mimansa Rules of Interpretation' which is a collection of Tagore Law
Lectures delivered in 1905 (Part II of this book) and which contains the best
exposition of these principles).
The Mimansa Principles of Interpretation, as laid down by Jaimini in
his sutras and as explained by Sabar, Kumarila Bhatta, Prabhakar, Mandan
Mishra, etc. were regularly used by our renowned jurists like Vijnaneshwara
(author of Mitakshara). Jimutvahana (author of Dayabhaga), Nanda Pandit
(author of Dattaka Mimansa), etc. Whenever there was any conflict between
two Smritis, e.g.. Manusmriti and Yajnavalkya Smriti, or ambiguity or
absurdity in any Smriti these principles were utilized. Thus, the Mimansa
principles were our Traditional system of interpretation of legal texts.
Although originally they were created for interpreting religious texts
pertaining to the Yagya (sacrifice), gradually they came to be utilized for
interpreting legal texts also (see also in this connection P.V. Kane's History
of the Dharmashastra, Vol. V. Pt. II, Ch. XXIX and Ch. XXX, pp. 1282-
13511.

TREATMENT BY MAXWELL (2 CARDINAL QUESTIONS)

The subject of the interpretation of a statute seems thus to fall under two
general heads: what are the principles which govern the construction of the language
of an act of parliament; and next, what are those which guide the interpreter in
gathering the intention on those incidental points on which the legislature is
necessarily presumed to have entertained one, but on which it has not expressed any."
The two questions summed up as above may be as well put in the following
language:
(1) what is the meaning and intention of a particular word, sentence or passage?
(2) whether it constitutes an obligatory rule of any kind or a quasi-obligatory rule or
a non-obligatory matter in cases where the intention and meaning is not sufficiently
explicit on these points?
Mr. maxwell first of all treats of what is called the literal construction. he
broaches this topic as follows:
The first and most elementary rule of construction is, that it is to be assumed
that the words and phrases are used in their technical meaning if they have acquired
one, and in their popular meaning if they have not, and that the phrases and sentences

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are to be construed according to the rules of grammar; and from this presumption it
is not allowable to depart where the language admits of no other meaning: nor where
it is susceptible of another meaning, unless adequate grounds are found, either in the
history or cause of the enactment or in the context or in the consequences which
would result from the literal interpretation, for concluding that that interpretation
does not give the real intention of the legislature. If there is nothing to modify, nothing
to alter, nothing to qualify the language which the statute contains, it must be
construed in the ordinary and natural meaning of the words and sentences.
you will find from the above:
First-that the words and sentences of a statute must be construed in their
natural and ordinary meaning, unless there be something to modify, to alter or qualify
that meaning.
Secondly. that the natural and ordinary meaning is the popular meaning, unless
the word or phrase has acquired a technical meaning well understood by those
conversant with the subject.
Thirdly. that phrases and sentences which require to be combined according to
rules of grammar.
Fourthly. that when adequate grounds are found, either in the history or cause
of the enactment or in the context or in the consequences which would result from the
literal construction, for concluding that the ordinary and natural meaning does not
give the real intention of the legislature, that meaning may be departed from.

NOW THESE FOUR PRINCIPLES HAVE THEIR COUNTERPARTS IN

MIMANSA SHASTRA
These four general rules have their counterparts in our ancient Sanskrit
works on interpretation in what are called the Principle of the Sruti, that of
Linga, that of Vakya and that of Prakarana.
1. Shruti Principle (Literal Rule): The literal meaning of a text is preferred
unless it leads to absurdity. This principle is similar to the modern literal
rule of interpretation. For example, in the Vedic verse "Aindra
garhapatyam upatishthate" (one should worship Garhapatya with the
Indra verse), the literal interpretation is that one should worship
Garhapatya (the household fire) with a verse addressed to Indra.
2. Linga Principle (Suggestive Power): Words or expressions can have
suggestive meanings beyond their literal sense. This principle allows for
contextual interpretation. For example, in the case of U.P. Bhoodan Yagna
Samiti v. Brij Kishore, the term "landless persons" was interpreted to
mean "landless peasants" rather than landless businessmen.
3. Vakya Principle (Syntactical Arrangement): The meaning of a sentence
is derived from its syntactical structure. This principle emphasizes the
importance of sentence construction in interpretation. It is illustrated by
the Aruni Nyaya, which deals with the arrangement of words in a
sentence.
4. Prakarana Principle (Contextual Interpretation): The meaning of a text
can be clarified by referring to other related texts. This principle allows
for a broader contextual understanding. For example, in the case of
Mahabir Prasad Dwivedi v. State of U.P., the Anushanga Principle was

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 used to extend the requirement of a hearing from one proviso to another
in a statute. (Mimansa Principles of Interpretation – Prof. K.L. Sarkar,
Page-35).

THERE ARE CERTAIN SPECIFIC KEY MIMAMSA PRINCIPLES A FEW OF

THEM ARE EXPLAINED HERE AS FOLLOWED BY APEX COURT AS WELL AS
HIGH COURT.

The Mimansa system is based on several axioms (self-evident principles) that

guide interpretation. These axioms are fundamental to understanding the
Mimansa approach:
1. Sarthakya Axiom: Every word and sentence must have meaning and
purpose. This axiom emphasizes that no part of a text is superfluous. It is
based on the belief that every word in the Vedas has a purpose and must
be interpreted accordingly.
2. Laghava Axiom (Gauravah Doshah): Simpler interpretations are
preferred over complex ones. This principle discourages unnecessary
complexity in interpretation. It is based on the idea that the simplest
explanation is usually the correct one.
3. Arthaikatva Axiom: A word or sentence should not be given a double
meaning. This axiom prevents ambiguity by ensuring that a single, clear
meaning is assigned to each word or sentence.
4. Gunapradhana Axiom: Subordinate ideas must align with the principal
idea. If a subordinate idea clashes with the principal idea, it must be
adjusted or disregarded. This principle is often illustrated by the maxim
"the bigger fish eats the smaller fish" (matsya nyaya).
5. Samanjasya Axiom: Contradictions should be reconciled where
possible. This principle encourages harmonious construction of texts. It
is used to resolve conflicts between different texts or interpretations.
6. Vikalpa Axiom: In cases of irreconcilable contradictions, one may
choose the more reasonable option. This principle is applied only when
all other means of reconciliation fail.
1. ADHYAHARA AVAM ANUSANGH PRINCIPLE
v/;kgkj ,oa vuqlx
a
In Mimansa, casus omissus is known as adhyahara. The adhyahara principle
permits us to add words to a legal text. However, the superiority of the Mimansa
Principles over Maxwell's Principles in this respect is shown by the fact that Maxwell
does not go into further detail and does not mention the sub-categories coming
under the general category of casus omissus. In the Mimansa system, on the other
hand, the general category of adhyahara has under it several sub-categories, e.g..
anusanga, anukarsha, etc. Since in this case we are concerned with the anusanga
principle, I may explain it in some detail.
The anusanga principle (or elliptical extension) states that an expression
occurring in one clause is often meant also for a neighboring clause, and it is only for
economy that it is only mentioned in the former (see Jaimini 2. 2, 16). The anusanga
principle has a further sub- categorisation. If a clause which occurs in a subsequent

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sentence is to be read into a previous sentence it is a case of Tadapakarsha, but when
it is vice-versa it is a case of Tadutkarsha. Jaimini I deprecates Tadapakarsha (Le.
transference backwards) and permits it only in exceptional cases. However, there is
no deprecation of Tadutakarsha.
The principle of Mimansa was used by Jimutvahana in Dayabhaga.
Jimutvaharia found that there is a text of Manu which states:
"Of a woman married according to the Brahma, Daiva, Arsha,
Gandharva and Prajapatya form, the property shall go to her
husband if she dies without issue. But her property, given to her on
her marriage in the form called Asura, Rakshasa and Paisacha, on
her death without issue shall become the property of her parents."
It can be seen that in the second sentence the word 'property' is qualified by
the words 'given to her on her marriage, whereas in the first sentence there is no such
qualification. Jimutvahana, using the anusanga principle of Mimansa, said that the
words "given to her on her marriage should also be inserted in the first sentence after
the word property, and hence there also the word 'property must be interpreted In a
qualified sense.
In the Mitakshara also the anusanga principle of Mimansa has been used.
Yajnavalkya II. 135-136 lays down the order of succession to the wealth of a person
dying sonless. Yajnavalkya II. 137 deals with succession to property of a forest hermit,
an ascetic, or a perpetual Vedic student. The Mitakshara then holds that Yajnavalkya
II. 138 samaristinastu samaristi is to be construed as an exception to Yajnavalkya II.
135, 136 and understands that the words 'of one dying without having a son' (grand
son or great grand son) are to be supplied before Yajnavalkya II. 138 from II. 136,
Le., there is to be anusanga of the word 'svaryatesya-putrasya'. In the matter of
Mahaveer Prasad Dwivedi (AIR 1992 All. 351), High Court strongly observed.

In Mimansa, casus omissus is known as adhyahara. The adhyahara

principle permits us to add words to a legal text. However, the superiority of
the Mimansa Principles over Maxwell's Principles in this respect is shown by
the fact that Maxwell does not go into further detail and does not mention
the sub-categories coming under the general category of casus omissus. In
the Mimansa system, on the other hand, the general category of adhyahara
has under it several sub-categories, e.g., anusanga, anukarsha, vakyashesha,
etc. Since in this case we are concerned with the anusanga principle, we may
explain it in some detail.

The anusanga principle (or elliptical extension) states that an expression

occurring in one clause is often meant also for a neighbouring clause, and
it is only for economy that it is only mentioned in the former (see Jaimini 2,
2, 16). The anusanga principle has a further sub- categorization. If a clause
which occurs in a subsequent sentence is to be read into a previous sentence
it is a case of Tadapakarsha, but when it is vice-versa it is a case of
Tadutkarsha.

The Anusanga principle of Mimansa was used by Jimutvahana in the

Dayabhaga. Jimutvahana found that there is a text of Manu which states:

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 "Of a woman married according to the Brahma, Daiva, Arsha,
Gandharva and Prajapartya form, the property shall go to her husband if
she dies without issue. But her property, given to her on her marriage in
the form called Asura, Rakshasa and Paisacha, on her death without issue
shall become the property of her parents."
It can be seen that in the second sentence the word `property' is
qualified by the words `given to her on her marriage', whereas in the first
sentence there is no such qualification. Jimutvahana, using the anusanga
principle of Mimansa, said that the words "given to her on her marriage"
should also be inserted in the first sentence after the word "property", and
hence there also the word `property' must be interpreted in a qualified
sense.

In the Mitakshara also the anusanga principle of Mimansa has been used.
Yajnavalkya II. 135-136 lays down the order of succession to the wealth of
a person dying sonless. Yajnavalkya II. 137 deals with succession to
property of a forest hermit, an ascetic, or a perpetual Vedic student. The
Mitakshara then holds that Yajnavalkya II. 138 `samaristinastu samaristi'
is to be construed as an exception to Yajnavalkya II. 135, 136 and
understands that the words `of one dying without having a son' (grand son
or great grand son) are to be supplied before Yajnavalkya II. 138 from II.
136, i.e., there is to be anusanga of the word `svaryatasya-putrasya'.

In our opinion, in the present case, the Anusanga principle of Mimansa should
be utilized and the expression `relevant subject' should also be inserted in the
qualification for the post of Reader after the words "at the Master's degree
level". Hence, we cannot accept the submission of Mr. Patwalia in this respect.
However, we agree with Mr.Patwalia that since academic experts have
regarded Political Science and Public Administration to be one discipline, it is
not right for this Court to sit in appeal over the opinion of the experts.
Rajbir Singh Dalal (Dr.) V. Chaudhari Devi Lal University, Sirsa and
Another {(2008) 9 SCC 284}, Para-21, 22, 23, 24 and 25.

2. GUNAPRADHAN AXIOM
In Sutra 3:3:9 Jaimini states:

गुणमुख्यव्यतिक्रमे िदर्थत्वान्मुख्येन वेदसंयोगः

“It may be mentioned that the Mimansa Rules of Interpretation were Your
traditional principles principles of interpretation laid down by Jaimini whose Sutras were
explained by Shabar, Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles were
regularly used by our great jurists like Vijnaneshwara (Author of Mitakshara),
Jimutvahana (author of Dayabhaga). Nanda Pandit, etc. whenever they found any conflict
between the various Smritis or any ambiguity or incongruity therein. There is no reason
why we cannot use these principles on appropriate occasions. However, it is a matter of
deep regret that these principles have rarely been used in our law Courts. It is nowhere
mentioned in our Constitution or any other law that only Maxwell's Principles of
Interpretation can be used by the Court. We can use any system of interpretation which

126
helps us (to) solve a difficulty. In certain situations Maxwell's principles would be more
appropriate, while in other situations the Mimansa principles may be more suitable. One
of the Mimansa principles is the Gunapradhan Axiom, and since we are utilizing it in this
Jud Judgment we may describe it in some detail Guna means subordinate or accessory,
while 'Pradhan' means principal. The Gunapradhan Axiom states:
"If a word or sentence purporting to express a subordinate idea clashes with the
principal idea, the former must be adjusted to the latter or must be disregarded
altogether."
See p. 82-83 of this book. This principle is also expressed by the popular maxim
known as matsya nyaya, ie, 'the bigger fish eats the smaller fish'.
According to Jaimini, acts are of two kind, principal and subordinate (see Jaimini, 2:1:6)
Kumarila Bhatta, in his Tantravartika (See Ganganath Jha's English Translation
Vol. 3, p. 1141) explains this Sutra as follows:
"When the Primary and the Accessory belong to two different Vedas, the Vedic
characteristic of the Accessory is determined by the Primary, as the Accessory is
subservient to the purpose of the primary."
It is necessary to explain this Sutra in some detail. The peculiar quality of the
Rigveda and Samaveda is that the mantras belonging to them are read aloud, whereas the
mantras in the Yajurveda are read in a low voice. Now the difficulty arose about certain
ceremonies, e.g.. Agnyadhana, which belong to the Yajurveda but in which verses of the
Samveda are to be recited. Are these Samaveda verses to be recited in a low voice or loud
voice? The answer, as given in the above Sutra, is that they are to be recited in low voice,
for although they are Samavedi verses, yet since they are being recited in a Yajurveda
ceremony their attribute must be altered to make it in accordance with the Yajurveda.
In the Sabhar Bhashya Translated into English by Dr. Ganga Nath Jha, and
published in the Gaekwad Oriental Series, the Sutra is read as follows:
"Where there is a conflict between the use and the substance greater regard should
be paid to the use."
Commenting on Jaimini 3:3: 9 Kumarila Bhatta says:
"The Siddhanta laid down by this Sutra is that in a case where there is one
qualification pertaining to the Accessory by itself and another pertaining to it through the
Primary, the former qualification is always to be taken as set aside by the latter. This is
because the proper fulfilment of the Primary is the business of the Accessory also as the
latter operates solely for the sake of the former. Consequently if, in consideration of its own
qualification it were to deprive the Primary of its natural accomplishment then there
would be a disruption of that action (the Primary) for the sake of which it was meant to
operate. Though in such a case the proper fulfilment of the Primary with all its
accompaniments would mean the deprival of the Accessory of its own natural
accompaniment, yet, as the fact of the Accessory being equipped with all its
accompaniments is not so very necessary (as that of the primary), there would be nothing
Incongruous in the said deprival". See Ganganath Jha's English translation of the
Tantravartika, Vol. 3 p. 1141.
The Gunapradhan Axiom can also be deduced from Jaimini 6:3:9 which states:
"When there is a conflict between the purpose and the material, the purpose is to
prevail, because in the absence of the prescribed material a substitute can be used, for the
material is subordinate to the purpose."

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 To give an example, the prescribed Yupa (sacrificial post for tying the sacrificial
animal) must be made of Khadir Wood. However, Khadir wood Is weak while the animal
tied may be restive. Hence, the Yupa can be made of Kadar Wood which is strong. Now this
substitution is being made despite the fact that the prescribed wood is Khadir, but this
prescription is only subordinate or Accessory to the performance of the ceremony. which
is the main object. Hence if it comes in the way of the ceremony being performed, it can be
modified or substituted.
The Gunapradhan axiom is fully applicable to the interpretation of Section
4A. Since the main aim of Section 4A of the U.P. Sales Tax Act is to encourage setting up of
new industries we must interpret all the conditions and clauses in the said provision to
make them in accordance with this main object. It may be that in isolation some clause or
condition in Section 4A may have another meaning, but when they are read as part of
Section 4A they must be given a meaning which subserves the object of Section 4A. The
object of Section 4A is the Primary, whereas the conditions mentioned in Section 4A are
the Accessories.
The conditions mentioned in the Explanation to Section 4A (registration,
etc.) are merely intended to ensure that there is a genuine new unit for which the
exemption is claimed, and not a farzi one. These conditions must therefore not be
construed strictly or literally, but in a manner which subserves the object of Section 4A. In
this connection reference may be made to Bajaj Tempo Ltd. v. C.IT., AIR 1992 SC 1622,
where it was held that a provision for encouraging new industries should be construed
liberally.
In this connection we may also refer to the Wooden Sword Maxim (Sphadi Nyaya),
which is a well-known Maxim in the Mimansa system. This Maxim states "what is
prescribed as a means to an action, is to be taken in a sense suited to the performance of
the action" (Vide Jatmini 3: 1: 2. quoted in this book at p. 185). The word 'Spha' in Sanskrit
means a sword, which is normally a metallic object. However, 'Spha' in connection with a
Yagya has to be interpreted as a wooden sword, which is a pushing instrument (as a Yagya
requires no cutting instrument, but only a pushing instrument).
Jaimini 3:1:3 states:
That is: "The Accessory (Shesha) is that which serves the purpose of another."
In Section 4A the conditions mentioned in the Explanation are the Accessories,
while the object of encouraging setting up of new industries is the Primary. The Accessory
must, therefore, serve the Primary. (In the case of Amit Plastic Industries).
3. PURPOSIVE LING LAKSHANA AVAM VAKYA PRINCIPLES
We may also consider the matter from the point of view of our traditional
principles of interpretation. The great Sanskrit grammarian Nagesh Bhatt
in his book 'Param Laghu Manjusha' has said that a word or phrase can
have three meanings:
"(i) Abhidha i.e. literal meaning;
(ii) Lakshana i.e. the indicative or suggestive meaning; (iii) Vyanjana i.e.
the figurative meaning.
Usually the literal meaning is followed, but sometimes the suggestive or
figurative meanings are adopted. As regards the suggestive meaning
(Lakshana) the oft quoted example is ^xaxk;ke~ ?kks"k^ : i.e. "I live on the Ganges."
This sentence cannot be literally interpreted because no one can live on the

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surface of the Ganges River. Hence it has to be interpreted to mean "I live
on the bank of the Ganga River."
As regards the third meaning Vyanjana, the oft quoted example is
^xrks vLred^ which means:
"The sun has set." Here the real meaning has in fact nothing to do with the
sun or its setting, but it really means "light the lamp" or "let us go home"
(because the sun has set).

In our opinion, in the present case, we have to adopt the Lakshana (or
Linga) rule of interpretation rather than the Shruti or Abidha (the literal)
rule. In other words, Rule 443 of the Indian Telegraph Rule has to be
interpreted in a purposive sense. Hence the telephone line in the name of
the person who is really paying the bills in connection with the telephone
line in the name of another person who is economically dependent on the
former can be disconnected for non-payment of bills in connection with the
telephone line in the name of the latter. Such an interpretation would
effectuate the intention of Rule 443, which is that telephone bills should be
paid promptly.”

Jaimini in Sutra 6: 3: 9 states: "When there is a conflict between the purpose

and the material, the purpose is to prevail, because in the absence of the
prescribed material a substitute can be used, for the material is
subordinate to the purpose".

To explain this it may be mentioned that the Brahmanas state that the
prescribed Yupa (sacsrificial post for tying the sacrificial animal) must be
made of Khadir Wood. However, Khadir wood is weak while the animal tied
may be restive. Hence, the Mimansa principle (stated above) permits that
the Yupa can be made of Khadar wood which is strong. Now this
substitution is being made despite the fact that the prescribed wood is
Khadir, but this prescription is only subordinate or accessory to the
performance of the yagya, which is the main object. Hence, if it comes in the
way of the yagya being performed, it can be modified or substituted.

In this connection we may also refer to the Wooden Sword Maxim (Sphadi
Nyaya), which is a well-known Maxim in the Mimansa system. This Maxim
states "what is prescribed as a means to an action, is to be taken in a sense
suited to the performance of the action" (vide Jaimini 3:1:2, quoted in the
book 'Mimansa Rules of Interpretation' by K.L. Sarkar at p. 185). The word
' Spha' in Sanskrit means a sword, which is normally a metallic object for
cutting. However, 'Spha' in connection with a Yagya has to be interpreted
as a wooden sword, because in a Yagya a small wooden sword called 'Spha'
is used which is a pushing instrument (as a Yagya requires no cutting
instrument, but only a pushing instrument). Thus, 'Sphadi Nyaya' implies
that we have to see the object of the text to correctly interpret it.

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In the Mimansa system, the literal rule of interpretation is called the Shruti
(or Abhida) principle, and ordinarily it is this principle which is to be
applied when interpreting a text. However, there are exceptional situations
when we have to depart from the literal rule and then certain other
principles have to be resorted to e.g. (1) the Linga (also called Lakshana)
principle or the suggestive power of words or expressions, (2) the Vakya
principle or syntactical arrngement, (3) the Prakarana principle, which
permits construction by referring to other texts in order to make the
meaning clear, (4) the Sthana (position) principle which means the relative
position of one text with reference to another, (5) the Samakhya (name)
principle which means the connection between different passages by the
indication accorded by the derivative words of a compound name.

In the present case we are of the opinion that the Linga (Lakshana)
principle will apply.

Linga really means interpretation by understanding the context, and it is a

departure from the literal rule of interpretation. The Linga principle can
be illustrated by the decision of this Court in U.P. Bhoodan Yagna Samiti vs.
Brij Kishore AIR 1988 SC 2239 where the words `landless person' were held
to mean 'landless peasant' and not landless businessmen. Here we see that
the Court has departed from the literal rule of interpretation, because by
the literal rule even a very rich businessman who owns no land will be
regarded as a landless person. Since the object of the U.P. Bhoodan Act was
to give some land to the landless peasants, the expression 'landless person'
was interpreted to mean 'landless peasant' only. This interpretation was
necessary otherwise the entire object of the U.P. Bhoodan Act would be
frustrated and land donated for distribution to landless peasants could be
grabbed by rich businessmen on the ground that they owned no land,
although they may have huge amount of wealth in the form of shares in
their companies, securities, crores of rupees in banks etc..

We may also like to point out that there is a difference between Linga
(Lakshana) principle and the Vakya principle. In the former no violence is
done to the wording of the text, but the words or expressions are construed
differently from the literal sense, and hence Linga is really construction by
context. In Vakya, however, some violence is done to the text, e.g. by
connecting two separate sentences, or by adding words or expressions, or
by transferring words or expressions up or down a sentence. This violence
may sometimes become necessary to save the text from becoming
meaningless or absurd, just as the surgeon may have to do violence to the
body (by operation) to save the patient's life. For this purpose the Uha
principle is utilized (The Uha principle or use of reason, is generally applied
for construction of texts).

In this connection it may be mentioned that Maxwell also permits doing

violence to the statute in exceptional situations. He says

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 "Where the language of a statute, in its ordinary meaning and
grammatical construction leads to a manifest contradiction of the
apparent purpose of the enactment, or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may be put
upon it which modifies the meaning of the words, and even the structure of
the sentence. This may be done by departing from the rules of grammar, by
giving an unusual meaning to particular words, by altering their
collocation, by rejecting them altogether, or by interpolating other words,
under the influence, no doubt, of an irresistible conviction that the
legislature could not possibly have intended what the words signify, and
that the modifications thus made are mere corrections of careless language
and really give the true intention".
Thus, in S.S. Kalra vs. Union of India 1991(2) SCC 87 this Court
observed that sometimes courts can supply words which have been
accidentally omitted. (See also the rulings mentioned in G.P. Singh's book
"Principles of Statutory Interpretation" 9th Edition, 2004 pages 70 to 77).
(Surjit Singh Vs. Mahanagar Telephone Nigam Limited {(2009) 16 SCC
722, Para-25 to 40).

4. PRANABHRIT AUR AGYANORETA

The principle of Linga is illustrated by Jaimini in numerous Sutras and
Adhikarnas. Thus the Pranabhrit Adhikarana which is based on Jaimini's
Sutra 28, Chapter IV, Book 1 shows how words acquired a wider meaning
by the Linga or Lakshana process.

In the Taittiriya Samhita (5.3.1.2) there is a passage :

"He disposes the Pranabhrit – izk.kHk`r min|kfr"
Again in the same Samhita (5.7.2.5) there is a similar passage :
"He disposes the Ajyani - vkT;kuksjsrk min|kfr"

Now what is the meaning of Pranabhrit in the one case and of Ajyani in the
other? The words Pranabhrit and Ajyani are respectively the names of two
Mantras or verses which begin with those words. These verses are used in
consecrating bricks required for a certain purpose in a yagya. From this
fact the bricks consecrated by the Pranabhrit Mantra acquired the name of
Pranabhrit. Similarly the bricks consecrated by the Ajyani Mantra acquired
the name of Ajyani. But in course of time the whole heap of bricks of a
particular kind came to be called Pranabhrit, because one or two bricks of
that heap were consecrated as Pranabhrit bricks. Thus the instance of
Pranabhrit becomes a maxim for extending the scope of a name in the
above manner. In fact, the meaning of the words Pranabhrit and Ajyani in
these cases is determined by the peculiar association of the words and by
the context of the passages in which they are used. Such a use is called
Lingasamabaya (embodiment of the Linga).

131
Nanda Pandit, in his work 'Dattaka Mimansa', refers to the Pranabhrit
maxim to show that although the word `substitute' was at first applied in
express term only to six descriptions of sons, later the word by general use
became applicable to all the twelve descriptions. The Pranabhrit maxim
¼izk.kHk`r U;k;½ states.
"The peculiar feature of one leading object belonging to a class may
give name to the whole class."

Pranabhrit literally means filling with life or inspiring life; but the
expression forms the commencement of a Mantra which is used in
consecrating certain bricks. Hence the word has come to mean a kind of
bricks (izk.kHk`nkfn’kCnkuk¡ LrqR;FkZRoef|dj.ke). This is the way in which the word
Ajyani also has come to mean another class of bricks.

The Pranabhrit maxim applies in the present case also because we have to
fill life (i.e. given an appropriate interpretation) to the word `subscriber' in
Rule 443 of the Indian Telegraph Rules.

The Pranabhrit maxim is often used in the interpretation of a text by

treating it as illustrative and not exhaustive. The illustrative rule of
interpretation is a departure from the literal rule which normally has to be
adopted while construing a text. However, sometimes departures from the
literal rule are permissible, and one of such departures is the illustrative
rule. To give an example, in Sanskrit there is an oft-quoted statement
"Kakebhyo Dadhi Rakshitam" which means "protect the curd from the
crows". Now in this sentence the word 'crow' is merely illustrative and not
exhaustive. The statement does not mean that one should protect the curd
only from crows but allow it to be eaten up by cats, dogs or to get damaged
by dirt or filth etc. It really means that one should protect the curd from all
dangers. Hence the word 'crow' in the above statement is only illustrative
and not exhaustive.

We can take another example. In the U.S. Constitution, Article 1 Section 8

states that Congress (the American Parliament) can raise Armies and
Navies. There is no mention of an Air Force there, obviously because there
were no aircraft in 1791 when the U.S. Constitution was promulgated. The
first aircraft was invented by the Wright brothers in 1903. However,
today's reality is that a modern Army cannot fight without air cover.
Amendment to the U.S. Constitution is a very ardous and lengthy procedure
because it requires two-third majority of both Houses of Congress and
ratification by three-fourth of the States. By the time this is done, the enemy
may invade and occupy the country. Hence the words `Armies and Navies'
have to be interpreted as illustrative and not exhaustive, and they really
mean all armed forces necessary for the security of the country (which
would include an Air Force, also). Thus Article 1 Section 8 of the U.S.
Constitution has to be interpreted not by applying the Shruti rule (literal

132
 rule), but by applying the Linga rule. The words 'Armies and Navies'
in Article 1 Section 8 are to be construed not literally but as suggestive. In
other words, they are only illustrative, and they really mean all Armed
Forces necessary for the security of the country.

We may also refer to Maxwell's 'Interpretation of Statutes' where it is

stated:
"But it is another elementary rule, that a thing which is within the
letter of a statute is not within the statute unless it be also within the real
intention of the Legislature, and the words, if sufficiently flexible, must be
construed in the sense which, if less correct grammatically, is more in
harmony within that intention. Language is rarely so free from ambiguity
as to be incapable of being used in more than one sense; and to adhere
rigidly to its literal and primary meaning in all cases would be to miss its
real meaning in many. If a literal meaning had been given to the laws which
forbade a layman to "lay hands" on a priest, and punished all who drew
blood in the street, the layman who wounded a priest with a weapon would
not have fallen within the prohibition, and the surgeon who bled a person
to save his life, would have been liable to punishment. On a literal
construction of his promise, Mohammed II.'s sawing the Venetian
Governor's body in two, was no breach of his engagement to spare his head;
nor Tamerlane's burying alive a garrison, a violation of his pledge to shed
no blood."
Maxwell also states:
"The words of a statute are to be understood in the sense in which
they best harmonize with the subject of the enactment and the object which
the Legislature has in view. Their meaning is found not so much in a strictly
grammatical or etymological propriety of language, nor even in its popular
use, as in the subject or in the occasion on which they are used and the
object to be attained." (emphasis supplied)

Thus, in both systems of interpretation, the Mimansa system as well as

Maxwell's system, it is emphasized that the intention of a statute has often
to be seen to properly interpret it, and it is not that the Court can never
depart from the literal rule of interpretation. It all depends on the context,
the subject-matter, the purpose for which the provision was made, etc.”
(Surjit Singh Vs. Mahanagar Telephone Nigam Limited {(2009) 16 SCC
722}, Para-41 to 51).
5. NASHTASHVADAGHDA NYAYA
In the next judgment of Gujrat Urja Vikas Nigam vs S.R. Power Limited {2008
(IV) SCC 755/AIR 2008 SC 1921}, Supreme Court resolved the controversy and
inconsistency between Section-175 and Section-174 of Electricity Act and applicability
of Arbitration and Conciliation Act 1996 especially Section-11.
This is the judgement which fully explained and elaborates the Mimansa
principles and its applicability. The relevant portion of the judgement with
regards to Mimansa is as follows:-

133
At first glance there is an apparent inconsistency between Section 175 and Section
174 of the Electricity Act, 2003. While Section 174 says that the said Act will
prevail over other laws, Section 175 says that the said Act is in addition and not in
derogation of any other law (which would include Section 11 of the Arbitration
and Conciliation Act, 1996.) Gujrat Urja Vikas Nigam vs S.R. Power Limited
{2008 (IV) SCC 755/AIR 2008 SC 1921}, Para-35.

In our opinion to resolve this conflict the Mimansa principles of Interpretation

would of great utility. (Supra Para-36)
The Mimansa principles of interpretation were created for resolving the practical
difficulties in performing the yagyas. The rules for performing the various yagyas
were given in books called the Brahmanas (all in Sanskrit) e.g. Shatapath
Brahmana, Aitareya Brahmana, Taitareya Brahmana, etc. There were many
ambiguities, obscurities, conflicts etc. in the Brahmana texts, and hence the
Mimansa Principles of Interpretation were created for resolving these difficulties.
(Supra Para-39)

Although the Mimansa principles were created for religious purpose, they were
so rational and logical that they subsequently began to be used in law, grammar,
logic, philosophy, etc. i.e. they became of universal application. The books on
Mimansa are all in Sanskrit, but there is a good book in English by Prof. Kishori
Lal Sarkar called `The Mimansa Rules of Interpretation' published in the Tagore
Law Lecture Series, which may be seen by anyone who wishes to go deeper into
the subject. (Supra Para-40)

In the Mimansa system there are three ways of dealing with conflicts which have
been fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III,
Book III of Jaimini. (1) Where two texts which are apparently conflicting are
capable of being reconciled, then by the Principle of Harmonious Construction
(which is called the Samanjasya Principle in Mimansa) they should be reconciled.
The Samanjasya Principle has been laid down by Jaimini in Chapter II, Sutra 9
which states:
"The inconsistencies asserted are not actually found. The conflicts consist
in difference of application. The real intention is not affected by application.
Therefore, there is consistency." (Supra Para-41)

The Samanjasya axiom is illustrated in the Dayabhag. Jimutvahana found that

there were two apparently conflicting texts of Manu and Yajnavalkya. The first
stated "a son born after a division shall alone take the paternal wealth". The
second text stated "sons, with whom the father has made a partition, should give
a share to the son born after the distribution". Jimutvahana, utilizing the
Samanjasya principle of Mimansa, reconciled these two texts by holding that the
former applies to the case of property which is the self-acquired property of the
father, and the latter applies to the property descended from the grand-father.
(Supra Para-42)

134
 One of the illustrations of the Samanjasya principle is the maxim of lost
horses and burnt chariot (Nashtashvadaghda Ratha Nyaya). This is based on the
story of two men traveling in their respective chariots and one of them losing his
horses and the other having his chariot burnt through the outbreak of fire in the
village in which they were putting up for the night. The horses that were left were
harnessed to the remaining chariot and the two men pursued their journey
together. Its teaching is union for mutual advantage, which has been quoted in the
16th Vartika to Panini, and is explained by Patanjali. It is referred to in Kumarila
Bhatta's Tantra Vartika.

The second situation is a conflict where it is impossible to reconcile the two

conflicting texts despite all efforts. In this situation the Vikalpa principle applies,
which says that whichever law is more in consonance with reason and justice
should be preferred. However, conflict should not be readily assumed and every
effort should be made to reconcile conflicting texts. It is only when all efforts of
reconciliation fail that the Vikalpa principle is to be resorted to.
(2) There is a third situation of a conflict and this is where there are two conflicting
irreconcilable texts but one overrides the other because of its greater force. This
is called a Badha in the Mimansa system (similar to the doctrine of ultra vires).
The great Mimansa scholar Sree Bhatta Sankara in his book `Mimansa
Valaprakasha' has given several illustrations of Badha as follows:
"A Shruti of a doubtful character is barred by a Shruti which is free from doubt.
A Linga which is more cogent bars that which is less cogent. Similarly a Shruti
bars a Smriti. A Shruti bars Achara (custom) also. An absolute Smriti without
reference to any popular reason bars one that is based upon a popular reason. An
approved Achara bars an unapproved Achara. An unobjectionable Achara bars
an objectionable Achara. A Smriti of the character of a Vidhi bars one of the
character of an Arthavada. A Smriti of a doubtful character is barred by one free
from doubts. That which serves a purpose immediately bars that which is of a
remote service. That which is multifarious in meaning is barred by that
which has a single meaning. The application of a general text is barred by a
special text. A rule of procedure is barred by a mandatory rule. A manifest sense
bars a sense by context. A primary sense bars a secondary sense. That which has
a single indication is preferable to what has many indications. An indication of an
inherent nature bars one which is not so. That which indicates an action is to be
preferred to what merely indicates a capacity. If you can fill up an ellipse by an
expression which occurs in a passage, you cannot go beyond it." (emphasis
supplied) 44. The principle of Badha is discussed by Jaimini in the tenth chapter
of his work. Badha primarily means barring a thing owing to inconsistency.
Jaimini uses the principle of Badha mainly with reference to cases where Angas or
sub-ceremonies are to be introduced from the Prakriti Yagya (i.e. a yagya whose
rules for performance are given in detail in the Brahmanas) into a Vikriti (i.e. a
yagya whose rules of performance are not mentioned anywhere, or are
incompletely mentioned). In such a case, though the Angas or the sub-ceremonies
are to be borrowed from the Prakriti Yagya, those of the sub-ceremonies which
prove themselves to be inconsistent with or out of place in the Vikriti Yagya, are
to be omitted. (Supra Para-43)

135
For example, in the Rajsuya Yagya, certain homas are prescribed, for the proper
performance of which one must borrow details from the Darshapaurnamasi
Yagya. In the Rajsuya Yagya, plain ground is directed to be selected as the Vedi for
the homas, while in the case of the Darshapaurnamasi, the Vedi should be erected
by digging the ground with spade etc. Such an act would be out of place in
constructing the Vedi for the homas in the Rajsuya Yagya. Here, there is a Badha
(bar) of the particular rule regarding the erection of the Vedi in the
Darshapaurnamasi Yagya, being extended to the Rajsuya Yagya. This is the case of
Badha by reason of express text. (Supra Para-45)

6. PRATISHEDHA AND PARYUDASA

To give an example the Mimansakas examine the subject of negative Vidhis

(negative injunctions such as the one in the proviso to Section 6) very
searchingly and exhaustively. First of all, they distinguish between what
may be called prohibitions against the whole world, and those against
particular persons only. This distinction resembles that between
judgments or rights in rem and judgments or rights in personam. The
former prohibitions are called Pratishedha and the latter Paryudasa. For
example, the prohibitory clause `Do not eat fermented (stale) food (na
kalanjam bhakshayet) is a Pratishedha; while the prohibition `those who
have taken the Prajapati vow must not see the rising sun' is a Paryudasa.
{(2009) 9 SCC 92} (Vijay Narayan Thatte and Others Vs. State of
Maharashtra and Others, Para-11).

In the second place, Pratishedhas are divided practically into two sub-
clauses viz. those which prohibit a thing without any reference to the
manner in which it may be used, and those which prohibit it only as regards
a particular mode of using. For instance, `Do not eat fermented food'
prohibits the use of it under all circumstances, while `Do not use the Sorasi
vessel at dead of night' forbids the use of the vessel only at the dead of night.
(Supra Para-12)

Then Paryudasa is also of two kinds. In one case, it relates to a person

performing some special act which is not enjoined by a Vidhi, as in the case
of the Prajapati vow. In the other, it relates to a person engaged in
performing a Vidhi; as for instance, when one is to do Shradh during the
full moon by virtue of a Vidhi but not in the night of the full moon. In this
case, the prohibition of doing Shradh in the night is a Paryudasa, which is
the same as an exception or proviso as we understand these terms. For, the
clause `not in the night' is an exception to the rule `Perform the Shradh
during the full moon'. (Supra Para-13)

These are the four classes of negative clauses. The first class, of which the
Kalanja (fermented food) clause is an example, may well be called a

136
condemnatory prohibition. The second class consists also of absolute
prohibitions of things under certain circumstances, as in the case of the
Sorasi vessel. The third class consists of prohibitions in relation to persons
in a given situation, as in the case of the Prajapati vow. The fourth class
restricts the scope of action of persons engaged in fulfilling an injunction,
as regards the time, place or manner of carrying out the substantive
element of the injunction. (Supra Para-14)

Thus we see that in the Mimansa system as regards negative injunctions

(such as the one contained in the proviso to Section 6 of Land Acquisition
Act) there is a much deeper discussion on the subject than that done by
Western Jurists. The Western writers on the subject of interpretation (like
Maxwell, Craies, etc.) only say that ordinarily negative words are
mandatory, but there is no deeper discussion on the subject, no
classification of the kinds of negative injunctions and their effects. (Supra
Para-15)

In the Mimansa system illustrations of many principles of interpretation

are given in the form of maxims (nyayas). The negative injunction is
illustrated by the Kalanja nyaya or Kalanja maxim. The Kalanja maxim (na
kalanjam bhakshayet) states that `a general condemnatory text is to be
understood not only as prohibiting an act, but also the tendency, including
the intention and attempt to do it.' It is thus mandatory. (Supra Para-16)

A plain reading of the proviso to Section 6 of the Land Acquisition Act shows
that it is a general prohibition against the whole world and not against a
particular person. Hence the Kalanja maxim of the Mimansa system will in
our opinion apply to the proviso to Section 6. (Supra Para-17)

Laughakshi Bhaskara, one of the great Mimansa writers, taking the

prohibitory text 'one is not to eat Kalanja or fermented/stale food' (na
kalanjam bhakshayet), explains the idiomatic force of the phrase (na
bhakshayet). He explains that the suffix 'yat' means 'shall', and that the
negative particle 'not' is to be taken as attached to the suffix 'yat' (shall), and
not to the idea of Kalanja eating. For if it be taken as attached to the latter
idea, then the sentence might mean 'you shall eat but not Kalanja'. In this case
strictly there would be no prohibition. So he labours to demonstrate that the
gist of the sentence is 'shall not' and therefore the object of it is to turn off from
eating Kalanja (fermented/stale food). This may appear to be making a hair-
splitting distinction, but it is of great importance from the Mimansa point of
view because it indicates the mandatory nature of the negative injunction
(nishedha). (Supra Para-18)

The explanation of a Nishedha Vidhi appears more clearly from Jaimini's

Sutras on the Kalanja maxim. The objector says :

137
 In a case of prohibition, mentally you entertain the idea of the
action prohibited; for you have to discriminate between the prohibited act
and the negation of that act.
The objector means to say 'what is the good of a prohibition when
it invites the imagination to gloat on the action prohibited'. The author
answers :
'When an act is enjoined by the Shastra, it is for the purpose of the
good of a person; if the good object be divorced from the meaning of the
Shastra, then it becomes a case of transgressing it.'
The meaning of this is:
'In a case of prohibition you must take it that not only is the
particular external act prohibited, but the very intention of it is also
prohibited.' (Supra Para-19)

Roughly speaking, the principle laid down is this :

'In a case of prohibition one should abstain from the very idea of the
act prohibited, and there ought to be no evasion of the Vidhi in any way.'
Thus, this class of Nishedha Vidhis is to be interpreted most
comprehensively and as mandatory. (Supra Para-20)

In view of the above discussion, it is evident that the proviso to Section 6 of

the Land Acquisition Act is totally mandatory and bears no exceptions. In
fact, a Constitution bench decision of this Court in Padma Sundara Rao
(Dead) and Others Vs. State of T.N. And Others (2002) 3 SCC 533 is clearly
in support of the submission of the learned counsel for the appellants that
the proviso to Section 6 is mandatory, and hence the Notification
under Section 6 dated 30.10.2006 is time barred. (Supra Para-21)

It may be mentioned that the Mimansa Rules of Interpretation were our

traditional principles of interpretation used for over two and a half
thousand years, laid down by Jaimini whose Sutras were explained by
Shabar, Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles were
regularly used by our great jurists like Vijnaneshwara (Author of
Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc.
whenever they found any conflict between the various Smritis or any
ambiguity or incongruity therein. There is no reason why we cannot use
these principles on appropriate occasions. However, it is a matter of deep
regret that these principles have rarely been used in our law Courts. It is
nowhere mentioned in our Constitution or any other law that only
Maxwell's Principles of Interpretation can be used by the Court. We can use
any system of interpretation which helps us solve a difficulty. In certain
situations Maxwell's principles would be more appropriate, while in other
situations the Mimansa principles may be more suitable.

CASES AND MATERIAL

ON
MIMANSA INTERPRETATION JURISDICTION

138
 1. (1993) II SCC (Jour.) 16
2. (1994) II SCC (Jour.) 1

3. AIR 1992 All 351 – Mahavir Prasad Dwivedi

4. AIR 1995 All 231 – Miracle Sugar Factory
5. 1995 LIC 1217 - Sardar Mohd. Ansar Khan
6. 1998 II All CJ – US Singh
7. MANU/UP/1290/1993 - Amit Plastics
8. MANU/UP/0620/1992 - Tribuwan Mishra

9. AIR 1962 SC 351, Para-3 & 4 – Abhiraj Keor

10. AIR 1981 SC 178, Para-109 - Shyam SP Singh
11. 2006 Vol. XII SCC 205 – Craft
12. 2006 judgement today XII SC – Ispat Industries
13. 2007 Vol. XIII SCC 246 – U.P. State Agro
14. 2008 Vol. IV SCC 755 – Gujrat Urja Limited
15. 2009 Vol. XVI SCC 722 – Surjit Singh
16. 2009 Vol. IX SCC 92 – Vijay Narayan Thatte
17. 2008 Vol. IX SCC 284 – Rajvir Dalal
18. 2011 Vol. IV SCC 266, Para- 34 to 39 – B Premanand

19. 2019 Vol. III AWC 2206 – Akhilesh Kumar

Dated 23.04.2019, MANU/UP/1570/2019
20. Child in Conflict Vs. State of Karnataka
Dated 07.05.2024, Para - 9.25
Refers Rajvir Dalal
Please try to find out more/ There can be 100 of others.

*Ashok Mehta, Senior Advocate,

Additional Advocate General of Uttar Pradesh, Former Additional Solicitor General of India
Residence: 276/89/17-(21) Muir Road, Near TV Tower Crossing, Prayagraj-211001
Mobile: +91-9415235726; e-mail: [email protected]
Assistant by Satyendra Kumar Tripathi, Advocate, High Court. Allahabad.

139
 मीमाांसा का लक्षण ससद्धान्त (सलांग)
Satyendra Kumar Tripathi*
प्रस्तावना
मीमाांसा प्रणाली में, व्याख्या का शाब्दिक नियम श्रुनि (या अनिदा) ससद्ाांि कहलािा है , और
सामान्यिः यही ससद्ाांि लागू होिा है जब नकसी पाठ की व्याख्या की जािी है। हालाांनक, कुछ अपवाद
ब्दिनियााँ ऐसी होिी हैं जब हमें शाब्दिक नियम से हटकर अन्य ससद्ाांिोां का सहारा लेिा पड़िा है , जैसे
नक (1) सलांग (लक्षण) ससद्ाांि, जो शिोां या अनिव्यब्दियोां के सुझावात्मक शब्दि से सांबांनिि है , (2) वाक्य
ससद्ाांि, जो वाक्य रचिा से सांबांनिि है , (3) प्रकरण ससद्ाांि, जो अर्थ को स्पष्ट करिे के सलए अन्य पाठोां
का सांदिथ लेिे की अिुमनि दे िा है , (4) िाि ससद्ाांि, जो एक पाठ का दू सरे पाठ के सापेक्ष ब्दिनि को
दशाथिा है , और (5) समाख्या (िाम) ससद्ाांि, जो सांयुि िाम के व्युत्पन्न शिोां द्वारा नदए गए सांकेि के
माध्यम से नवनिन्न अांशोां के बीच सांबांि िानपि करिा है |
हम यह िी बिािा चाहेंगे नक सलांग (लक्षण) ससद्ाांि और वाक्य ससद्ाांि में अांिर है । पूवथ में पाठ
के शिोां के सार् कोई अिर्थ िहीां नकया जािा, लेनकि शिोां या अनिव्यब्दियोां को शाब्दिक अर्थ से
अलग िरीके से समझा जािा है , और इससलए सलांग वास्तव में सांदिथ के आिार पर व्याख्या है। वाक्य में ,
हालाांनक, पाठ के सार् कुछ बदलाव नकया जािा है , जैसे नक दो अलग वाक्योां को जोड़कर, या शिोां या
अनिव्यब्दियोां को जोड़कर, या शिोां या अनिव्यब्दियोां को वाक्य में ऊपर या िीचे िािाांिररि करके।
यह बदलाव किी-किी पाठ को निरर्थक या बेिुका होिे से बचािे के सलए आवश्यक हो जािी है , जैसे
नक एक सजथि को रोगी की जाि बचािे के सलए शरीर के सार् शल्य निया (ऑपरे शि) करिा है । इस
उद्दे श्य के सलए उहा ससद्ाांि का उपयोग नकया जािा है (उहा ससद्ाांि या िकथ का उपयोग, आमिौर पर
पाठोां की व्याख्या के सलए लागू नकया जािा है)।
इस सांबांि में यह उल्लेख नकया जा सकिा है नक मैक्सवेल िी असािारण ब्दिनियोां में कािूि के
सार् नहांसा करिे की अिुमनि दे िा है। वह कहिा है , "जहाां नकसी कािूि की िाषा, उसके सामान्य अर्थ
और व्याकरसणक सांरचिा के कारण, अनिनियम के स्पष्ट उद्दे श्य के सार् एक स्पष्ट नवरोिािास, या कुछ
असुनविा या बेिुकापि, कनठिाई या अन्याय, जो सांिविः इरादिि िहीां है , उत्पन्न होिा है , वहाां उस पर
एक ऐसी व्याख्या लागू की जा सकिी है जो शिोां के अर्थ को सांशोनिि करिी है , और यहाां िक नक
वाक्य की सांरचिा को िी। यह व्याकरण के नियमोां से हटकर, नवशेष शिोां को असामान्य अर्थ दे कर,
उिके िम को बदलकर, उन्हें पूरी िरह से अस्वीकार करके, या अन्य शिोां को जोड़कर नकया जा
सकिा है , निस्सांदेह इस नवश्वास के प्रिाव में नक नविानयका का इरादा सांिविः वह िहीां हो सकिा जो
शि दशाथिे हैं , और इस प्रकार नकए गए सांशोिि वास्तव में लापरवाह िाषा के सुिार हैं और सही इरादे

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को दशाथिे हैं।" इस प्रकार, एस.एस. कालरा बिाम िारि सांघ 1991(2) एससीसी 87 में इस न्यायालय िे
कहा नक किी-किी न्यायालय उि शिोां को जोड़ सकिे हैं जो गलिी से छूट गए होां।

मीमाांसा ससद्धाांतोां का उपयोग:

- अदालि िे मीमाांसा ससद्ाांिोां का िी उपयोग नकया, जो प्राचीि िारिीय ग्रांर्ोां और कािूिोां की व्याख्या
करिे के सलए उपयोग नकए जािे वाले पारां पररक ससद्ाांि हैं। ये ससद्ाांि नकसी नियम या कािूि के पीछे के
सांदिथ, उद्दे श्य और इरादे को समझिे पर जोर दे िे हैं , ि नक केवल उसके शाब्दिक अर्थ पर नििथर रहिे
पर।
- अदालि िे मीमाांसा के "लक्षणा ससद्ाांि" (अर्ाथि अप्रत्यक्ष अर्थ) का उल्लेख नकया, जो नकसी
नियम की व्यापक व्याख्या की अिुमनि दे िा है जब शाब्दिक अर्थ अिुनचि या अव्यावहाररक पररणाम
दे िा है। इस मामले में, अदालि िे इस ससद्ाांि का उपयोग करके नियम 443 की व्याख्या की, जो इसके
इब्दिि उद्दे श्य—टे लीफोि नबलोां का समय पर िुगिाि सुनिनिि करिा—के अिुरूप र्ी।
- अदालि िे "अर्थवाद ससद्ाांि" का िी उल्लेख नकया, सजसमें नकसी नियम की व्याख्या उसके
सांदिथ और उस पररब्दिनि के आिार पर की जािी है सजसमें इसे बिाया गया र्ा। अदालि िे कहा नक
नियम 443 का प्रार्नमक उद्दे श्य यह सुनिनिि करिा है नक टे लीफोि नबल समय पर चुकाए जाएां , और
अपीलकिाथ के किेक्शिोां को बांद करिा इस उद्दे श्य को पूरा करिा है।
SURJEET SINGH VS. MTNL (2009) 16 SCC 722, PARA-25 TO 33.
25. हम इस मामले को हमारे पारां पररक व्याख्या ससद्ाांिोां के दृनष्टकोण से िी
नवचार कर सकिे हैं। महाि सांस्कृि व्याकरणाचायथ िागेश िट्ट िे अपिी पुस्तक 'परम
लघु मांजूषा' में कहा है नक एक शि या वाक्याांश के िीि अर्थ हो सकिे हैं:
"(i) अनििा अर्ाथि शाब्दिक अर्थ; (ii) लक्षणा अर्ाथि सांकेिात्मक या सुझावात्मक अर्थ ;
(iii) व्यांजिा अर्ाथि अलांकाररक अर्थ।
सामान्यिः शाब्दिक अर्थ का पालि नकया जािा है , लेनकि किी-किी सांकेिात्मक या
अलांकाररक अर्थ अपिाए जािे हैं । सांकेिात्मक अर्थ (लक्षणा) के सां दिथ में अक्सर उद्ृि
नकया जािे वाला उदाहरण है 'गङ्गायाां घोषः ' अर्ाथि "मैं गांगा पर रहिा हाँ ।" इस वाक्य
का शाब्दिक अर्थ िहीां सलया जा सकिा क्योांनक कोई िी गांगा िदी की सिह पर िहीां रह
सकिा। इससलए इसका अर्थ यह सलया जािा चानहए नक "मैं गांगा िदी के नकिारे रहिा
हाँ।"
िीसरे अर्थ व्यांजिा के सां दिथ में अक्सर उद्ृि नकया जािे वाला उदाहरण है
'गिोऽस्तमकथः ' सजसका अर्थ है:

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 "सूयथ अस्त हो गया है ।" यहााँ वास्तनवक अर्थ का सूयथ या उसके अस्त होिे से
कोई सांबांि िहीां है , बब्दि इसका वास्तनवक अर्थ है "दीपक जलाओ" या "चलो घर
चलें" (क्योांनक सूयथ अस्त हो गया है)।
26. हमारे नवचार में, विथमाि मामले में हमें श्रुनि या अनििा (शाब्दिक) नियम के
बजाय लक्षणा (या सलांग) नियम को अपिािा होगा। दू सरे शिोां में , िारिीय टे लीग्राफ
नियम 443 को उद्दे श्यपूणथ अर्थ में व्याख्यानयि करिा होगा। इससलए, एक व्यब्दि के
िाम पर टे लीफोि लाइि, जो वास्तव में दू सरे व्यब्दि के िाम पर टे लीफोि लाइि से
सांबांनिि नबलोां का िुगिाि कर रहा है , जो आनर्थक रूप से पहले व्यब्दि पर नििथर है ,
को बाद वाले के िाम पर टे लीफोि लाइि के नबलोां के िुगिाि ि करिे के कारण
निस्किेक्ट नकया जा सकिा है। ऐसी व्याख्या नियम 443 के उद्दे श्य को प्रिावी
बिाएगी, जो यह है नक टे लीफोि नबलोां का िुरांि िुगिाि नकया जािा चानहए।
27. सार् ही, इससे कोई फकथ िहीां पड़िा नक टे लीफोि लाइि आवास पर है या
व्यावसानयक पररसर में, िले ही दोिोां पूरी िरह से अलग होां। इससलए हमारे नवचार
में, अपीलकिाथ के िाम पर दोिोां टे लीफोि लाइिें , एक उसके आवास पर और दू सरी
उसके व्यावसानयक पररसर में, उसकी आनश्रि पत्नी के िाम पर टे लीफोि लाइि के
बकाया िुगिाि ि करिे के कारण निस्किेक्ट की जा सकिी हैं।
28. हम नियम 443 की व्याख्या करिे में मीमाांसा के नियमोां का िी उपयोग कर
सकिे हैं।
29. यह गहरा खेदजिक है नक हमारे न्यायालयोां में वकील मैक्सवेल और िेज़
का हवाला दे िे हैं , लेनकि कोई िी मीमाांसा के व्याख्या ससद्ाांिोां का उल्लेख िहीां
करिा। आज हमारे िर्ाकनर्ि सशनक्षि लोग हमारे पूवथजोां की महाि बौसद्क
उपलब्दियोां और उिके द्वारा हमें सौांपी गई बौसद्क सांपदा से लगिग अिजाि हैं।
मीमाांसा के व्याख्या ससद्ाांि उस बौसद्क सांपदा का नहस्सा हैं , लेनकि यह दे खकर
दु ख होिा है नक इलाहाबाद उच्च न्यायालय के ित्कालीि मुख्य न्यायािीश सर जॉि
एज के निणथय, बेिी प्रसाद बिाम हरदई दे वी (1892) ILR 14 All 67 (FB) में इि
ससद्ाां िोां के उल्लेख के अलावा, हमारे अपिे दे श में िी इि ससद्ाांिोां का लगिग कोई
उपयोग िहीां नकया गया है (हम में से एक, न्यायमूनिथ एम. काटजू के अलावा)।
30. यह उल्लेख नकया जा सकिा है नक मीमाांसा के व्याख्या नियम हमारे
पारां पररक व्याख्या ससद्ाांि र्े , सजिका उपयोग ढाई हजार वषों से नकया जा रहा है ,
जो जैनमिी द्वारा प्रनिपानदि नकए गए र्े और सजिकी व्याख्या शाबर, कुमाररल िट्ट,
प्रिाकर आनद िे की र्ी। इि मीमाांसा ससद्ाांिोां का नियनमि रूप से हमारे महाि

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 न्यायनवदोां जैसे नवज्ञािेश्वर (नमिाक्षरा के लेखक), जीमूिवाहि (दायिाग के लेखक),
िांद पांनिि आनद द्वारा उपयोग नकया जािा र्ा, जब िी उन्हें नवनिन्न स्मृनियोां के बीच
कोई सांघषथ या अस्पष्टिा या असांगनि नमलिी र्ी। कोई कारण िहीां है नक हम उनचि
अवसरोां पर इि ससद्ाांिोां का उपयोग िहीां कर सकिे। हालाांनक, यह गहरा खेद का
नवषय है नक इि ससद्ाांिोां का हमारे न्यायालयोां में शायद ही किी उपयोग नकया गया
है। हमारे सांनविाि या नकसी अन्य कािूि में कहीां िी यह उल्लेख िहीां है नक न्यायालय
केवल मैक्सवेल के व्याख्या ससद्ाांिोां का ही उपयोग कर सकिा है। हम नकसी िी
व्याख्या प्रणाली का उपयोग कर सकिे हैं जो हमें नकसी कनठिाई को हल करिे में
मदद करिी है। कुछ ब्दिनियोां में मैक्सवेल के ससद्ाांि अनिक उपयुि होांगे, जबनक
अन्य ब्दिनियोां में मीमाांसा के ससद्ाांि अनिक उपयुि हो सकिे हैं।
31. मीमाांसा पर लगिग सिी पुस्तकें सांस्कृि में हैं , लेनकि एक अिी पुस्तक है ,
'मीमाांसा रूल्स ऑफ इां टरनप्रटे शि' जो प्रोफेसर के.एल. सरकार द्वारा टै गोर लॉ लेक्चर
सीरीज़ में प्रकासशि की गई है , सजसे दे खा जा सकिा है।
32. यह उल्लेख नकया जा सकिा है नक मीमाांसा के व्याख्या नियम वैनदक यज्ञोां
को करिे में आिे वाली व्यावहाररक कनठिाइयोां को हल करिे के सलए बिाए गए र्े।
नवनिन्न यज्ञोां को करिे के नियम ब्राह्मण ग्रांर्ोां में नदए गए हैं , जैसे शिपर् ब्राह्मण, ऐिरे य
ब्राह्मण, िैनिरीय ब्राह्मण आनद। ब्राह्मण ग्रांर्ोां में कई अस्पष्टिाएां , सांघषथ, असांगनियाां ,
लोप आनद र्े, और इससलए इस उद्दे श्य के सलए व्याख्या के ससद्ाांि बिाए गए। इस
प्रकार मीमाांसा ससद्ाांि मूल रूप से िानमथक उद्दे श्योां के सलए बिाए गए र्े , लेनकि वे
इििे िकथसांगि और िानकथक र्े नक बाद में उिका उपयोग कािूि, व्याकरण,
िकथशास्त्र, दशथि आनद में नकया जािे लगा, अर्ाथि वे सावथिौनमक अिुप्रयोग के हो
गए।
33. जैनमिी िे सूत्र 6:3:9 में कहा है:
"जब उद्दे श्य और सामग्री के बीच सांघषथ होिा है , िो उद्दे श्य को प्रार्नमकिा दी जािी
चानहए, क्योांनक नििाथररि सामग्री की अिुपब्दिनि में एक नवकल्प का उपयोग नकया
जा सकिा है , क्योांनक सामग्री उद्दे श्य के अिीि है।"

सुरजीत ससांह बनाम महानगर टे लीफोन ननगम सलनमटे ड (MTNL) (2009) 16 SCC 722 का
मामला अपीलकिाथ सुरजीि ससांह के टे लीफोि किेक्शिोां को उिकी पत्नी के िाम से बकाया नबलोां के
कारण निस्किेक्ट नकए जािे के नवरोि में है । यह मामला टे लीफोि सेवाओां के बकाया नबलोां और पररवार
के सदस्ोां के बीच नविीय नििथरिा के सांदिथ में कािूिी व्याख्या और न्यानयक ससद्ाांिोां के अिुप्रयोग को

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लेकर महत्वपूणथ है। अपीलकिाथ के पास उिके िाम पर दो टे लीफोि किेक्शि र्े —एक उिके आवासीय
पिे पर और दू सरा उिके व्यावसानयक पररसर में। उिकी पत्नी के िाम पर िी उिके साझा आवास पर
एक टे लीफोि किेक्शि र्ा। जब पत्नी िे अपिे टे लीफोि किेक्शि का नबल िहीां चुकाया, िो MTNL िे
ि केवल उसका किेक्शि बांद कर नदया, बब्दि अपीलकिाथ के दोिोां किेक्शि िी निस्किेक्ट कर नदए।
इसके सलए MTNL िे िारिीय टे लीग्राफ नियम, नियम 443 का हवाला नदया, जो यह अिुमनि दे िा है नक
यनद कोई ग्राहक नबल का िुगिाि िहीां करिा है , िो टे लीफोि सेवा प्रदािा उसका किेक्शि बांद कर
सकिा है।

मामले के प्रमुख तत्व:

1. अपीलकताा का तका
- सुरजीि ससांह िे िकथ नदया नक उिके टे लीफोि किेक्शि, जो उिके िाम पर पांजीकृि र्े, उिकी
पत्नी के बकाया नबलोां के कारण निस्किेक्ट िहीां नकए जािे चानहए र्े। उन्होांिे कहा नक वे और उिकी
पत्नी अलग-अलग कािूिी इकाइयााँ हैं , और उन्हें उिकी पत्नी के नविीय दानयत्वोां के सलए सजम्मेदार िहीां
ठहराया जािा चानहए।
- उन्होांिे िारिीय टे लीग्राफ नियम, नियम 443 का हवाला नदया, जो कहिा है नक यनद कोई
ग्राहक टे लीफोि नबल का िुगिाि िहीां करिा है , िो सेवा प्रदािा टे लीफोि किेक्शि बांद कर सकिा है।
हालाांनक, उन्होांिे िकथ नदया नक यह नियम उिके किेक्शिोां पर लागू िहीां होिा चानहए, क्योांनक वे उिके
िाम पर पांजीकृि र्े, ि नक उिकी पत्नी के िाम पर।

2. भारतीय टे लीग्राफ ननयम, ननयम 443

- नियम 443 टे लीफोि सेवाओां को बांद करिे की अिुमनि दे िा है यनद ग्राहक नबल का िुगिाि िहीां
करिा है। इस नियम का उद्दे श्य यह सुनिनिि करिा है नक टे लीफोि नबल समय पर चुकाए जाएां , जो
सेवा प्रदािा के नविीय स्वास्थ्य के सलए महत्वपूणथ है ।
- अदालि को यह व्याख्या करिी र्ी नक क्या यह नियम अपीलकिाथ के किेक्शिोां को उिकी पत्नी के
बकाया नबलोां के सलए निस्किेक्ट करिे के सलए लागू नकया जा सकिा है , यह दे खिे हुए नक वे अलग-
अलग कािूिी इकाइयााँ र्े लेनकि एक ही घर में रहिे र्े।

3. नवत्तीय ननभारता:
- अदालि िे िोट नकया नक अपीलकिाथ की पत्नी एक गृनहणी र्ी और नविीय रूप से उि पर नििथर र्ी।
इस बाि का कोई सबूि िहीां र्ा नक उसकी कोई स्विांत्र आय का स्रोि र्ा। इससलए, यह माििा उनचि
र्ा नक अपीलकिाथ ही अपिी पत्नी के टे लीफोि किेक्शि के नबलोां का िुगिाि कर रहे र्े।

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- अदालि िे इस बाि पर जोर नदया नक जब एक पररवार का सदस् दू सरे पर नविीय रूप से नििथर होिा
है, िो पहले के बकाया नबलोां के सलए दू सरे के टे लीफोि किेक्शि को बांद करिा उनचि है।

4. उद्दे श्यपरक व्याख्या :

- अदालि िे उद्दे श्यपरक व्याख्या के ससद्ाांि को लागू नकया, सजसमें नकसी नियम या कािूि की व्याख्या
इस िरह से की जािी है नक वह उसके इब्दिि उद्दे श्य के अिुरूप हो। इस मामले में , नियम 443 का
उद्दे श्य यह सुनिनिि करिा है नक टे लीफोि नबल समय पर चुकाए जाएां , जो सेवा प्रदािा के नविीय ब्दिरिा
के सलए आवश्यक है ।
- अदालि िे नियम 443 की शाब्दिक व्याख्या को खाररज कर नदया और इसके बजाय नियम के व्यापक
उद्दे श्य पर ध्याि केंनिि नकया, जो बकाया नबलोां के कारण सेवा प्रदािा को होिे वाले नविीय िुकसाि को
रोकिा है।

5. पूवा ननणाय :
- अदालि िे कई पूवथ निणथयोां की जाांच की, सजिमें बॉम्बे उच्च न्यायालय और आां ध्र प्रदे श उच्च न्यायालय
के मामले शानमल र्े, जहाां समाि मुद्दोां पर नवचार नकया गया र्ा। इि मामलोां में , अदालिोां िे यह फैसला
नदया र्ा नक यनद कोई पररवार का सदस् दू सरे पर नविीय रूप से नििथर है , िो उसके बकाया नबलोां के
सलए ग्राहक के टे लीफोि किेक्शि को बांद करिा उनचि है।
- अदालि िे इि मामलोां को उि ब्दिनियोां से अलग नकया जहाां पररवार के सदस्ोां की स्विांत्र आय होिी
है और वे एक-दू सरे पर नविीय रूप से नििथर िहीां होिे हैं। ऐसे मामलोां में , एक सदस् के टे लीफोि
किेक्शि को दू सरे के बकाया नबलोां के सलए बांद करिा उनचि िहीां होगा।

6. ननणाय :
- अदालि िे अपीलकिाथ के टे लीफोि किेक्शिोां को बांद करिे के निणथय को बरकरार रखा और यह
फैसला नदया नक जब एक पररवार का सदस् दू सरे पर नविीय रूप से नििथर होिा है , िो पहले के बकाया
नबलोां के सलए दू सरे के टे लीफोि किेक्शि को बांद करिा उनचि है।
- अदालि िे टे लीफोि नबलोां के समय पर िुगिाि के महत्व पर जोर नदया, जो सेवा प्रदािा की ब्दिरिा
के सलए आवश्यक है , और नियम 443 की व्याख्या को इस उद्दे श्य के सार् सांरेब्दखि नकया।

मीमाांसा ससद्धाांतोां का नवस्तृत नववरण

- लक्षणा ससद्ाांि: यह ससद्ाांि नकसी नियम या कािूि के शाब्दिक अर्थ से आगे जाकर उसके
अप्रत्यक्ष या सांकेनिि अर्थ को समझिे पर जोर दे िा है । इस मामले में , अदालि िे इस ससद्ाांि का उपयोग
करके नियम 443 की व्याख्या की, जो इसके इब्दिि उद्दे श्य—टे लीफोि नबलोां का समय पर िुगिाि
सुनिनिि करिा—के अिुरूप र्ी।

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 - अर्थवाद ससद्ाांि: यह ससद्ाांि नकसी नियम या कािूि की व्याख्या उसके सांदिथ और उस
पररब्दिनि के आिार पर करिे पर जोर दे िा है सजसमें इसे बिाया गया र्ा। अदालि िे कहा नक नियम
443 का प्रार्नमक उद्दे श्य यह सुनिनिि करिा है नक टे लीफोि नबल समय पर चुकाए जाएां , और
अपीलकिाथ के किेक्शिोां को बांद करिा इस उद्दे श्य को पूरा करिा है।
SURJEET SINGH VS. MTNL (2009) 16 SCC 722, PARA-37 TO 52.
37. विथमाि मामले में हमारा मि है नक सलांग (लक्षण) ससद्ाांि लागू होगा।
38. सलांग का अर्थ वास्तव में सांदिथ को समझकर व्याख्या करिा है , और यह व्याख्या
के शाब्दिक नियम से एक अलगाव है। सलांग ससद्ाांि को इस न्यायालय के उिर
प्रदे श िूदाि यज्ञ सनमनि बिाम बृज नकशोर (एआईआर 1988 एससी 2239) के
निणथय से समझाया जा सकिा है , जहााँ 'िूनमहीि व्यब्दि' शिोां का अर्थ 'िूनमहीि
नकसाि' से लगाया गया र्ा, ि नक िूनमहीि व्यापारी से। यहााँ हम दे खिे हैं नक
न्यायालय िे व्याख्या के शाब्दिक नियम से हटकर फैसला नकया है , क्योांनक शाब्दिक
नियम के अिुसार एक बहुि अमीर व्यापारी जो जमीि िहीां रखिा, उसे िी िूनमहीि
व्यब्दि मािा जाएगा। चूांनक उिर प्रदे श िूदाि अनिनियम का उद्दे श्य िूनमहीि
नकसािोां को कुछ जमीि दे िा र्ा, इससलए 'िूनमहीि व्यब्दि' शि का अर्थ केवल
'िूनमहीि नकसाि' से लगाया गया। यह व्याख्या आवश्यक र्ी, अन्यर्ा उिर प्रदे श
िूदाि अनिनियम का पूरा उद्दे श्य नवफल हो जािा और िूनमहीि नकसािोां को
नविररि करिे के सलए दाि की गई जमीि अमीर व्यापाररयोां द्वारा हनर्या ली जािी,
हालाांनक उिके पास अपिी कांपनियोां में शेयर, प्रनििूनियााँ , बैंकोां में करोड़ोां रुपये
आनद के रूप में बहुि अनिक िि हो सकिा है।
39. हम यह िी बिािा चाहेंगे नक सलांग (लक्षण) ससद्ाांि और वाक्य ससद्ाांि में अांिर
है। पूवथ में पाठ के शिोां के सार् कोई नहांसा िहीां की जािी, लेनकि शिोां या
अनिव्यब्दियोां को शाब्दिक अर्थ से अलग िरीके से समझा जािा है , और इससलए
सलांग वास्तव में सांदिथ के आिार पर व्याख्या है। वाक्य में , हालाांनक, पाठ के सार्
कुछ नहांसा की जािी है , जैसे नक दो अलग वाक्योां को जोड़कर, या शिोां या
अनिव्यब्दियोां को जोड़कर, या शिोां या अनिव्यब्दियोां को वाक्य में ऊपर या िीचे
िािाांिररि करके। यह नहां सा किी-किी पाठ को निरर्थक या बेिुका होिे से बचािे
के सलए आवश्यक हो जािी है , जैसे नक एक सजथि को रोगी की जाि बचािे के सलए
शरीर के सार् नहांसा (ऑपरे शि) करिी पड़िी है। इस उद्दे श्य के सलए उहा ससद्ाांि
का उपयोग नकया जािा है (उहा ससद्ाांि या िकथ का उपयोग, आमिौर पर पाठोां की
व्याख्या के सलए लागू नकया जािा है)।

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40. इस सांबांि में यह उल्लेख नकया जा सकिा है नक मैक्सवेल िी असािारण
ब्दिनियोां में कािूि के सार् नहांसा करिे की अिुमनि दे िा है। वह कहिा है , "जहाां
नकसी कािूि की िाषा, उसके सामान्य अर्थ और व्याकरसणक सांरचिा के कारण,
अनिनियम के स्पष्ट उद्दे श्य के सार् एक स्पष्ट नवरोिािास, या कुछ असुनविा या
बेिुकापि, कनठिाई या अन्याय, जो सांिविः इरादिि िहीां है , उत्पन्न होिा है , वहाां
उस पर एक ऐसी व्याख्या लागू की जा सकिी है जो शिोां के अर्थ को सांशोनिि
करिी है , और यहाां िक नक वाक्य की सांरचिा को िी। यह व्याकरण के नियमोां से
हटकर, नवशेष शिोां को असामान्य अर्थ दे कर, उिके िम को बदलकर, उन्हें पूरी
िरह से अस्वीकार करके, या अन्य शिोां को जोड़कर नकया जा सकिा है , निस्सांदेह
इस नवश्वास के प्रिाव में नक नविानयका का इरादा सांिविः वह िहीां हो सकिा जो
शि दशाथिे हैं , और इस प्रकार नकए गए सांशोिि वास्तव में लापरवाह िाषा के
सुिार हैं और सही इरादे को दशाथिे हैं।" इस प्रकार, एस.एस. कालरा बिाम िारि
सांघ 1991(2) एससीसी 87 में इस न्यायालय िे कहा नक किी-किी न्यायालय उि
शिोां को जोड़ सकिे हैं जो गलिी से छूट गए होां। (जी.पी. ससांह की पुस्तक
"नप्रांससपल्स ऑफ स्टै ट्यूटरी इां टरनप्रटे शि" 9वाां सांस्करण, 2004, पृष्ठ 70 से 77 में
उब्दल्लब्दखि निणथय िी दे खें)।
41. सलांग ससद्ाांि को जैनमिी िे कई सूत्रोां और अनिकरणोां में दशाथ या है। इस प्रकार,
प्राणिृि अनिकरण, जो जैनमिी के सूत्र 28, अध्याय IV, पुस्तक 1 पर आिाररि है ,
यह दशाथिा है नक कैसे शिोां िे सलांग या लक्षण प्रनिया के माध्यम से एक व्यापक
अर्थ प्राप्त नकया।
42. िैनिरीय सांनहिा (5.3.1.2) में एक अांश है:
"वह प्राणिृि का निपटाि करिा है - प्राणिृि उपदद्यानि "
नफर से उसी सांनहिा (5.7.2.5) में एक समाि अांश है:
"वह अज्यािी का निपटाि करिा है - आज्यािोरे िा उपदद्यानि "
43. अब एक मामले में प्राणिृि और दू सरे में अज्यािी का क्या अर्थ है ? प्राणिृि
और अज्यािी शि िमशः दो मांत्रोां या छां दोां के िाम हैं जो उि शिोां से शुरू होिे
हैं। ये छां द यज्ञ में एक निनिि उद्दे श्य के सलए आवश्यक ईांटोां को समनपथि करिे में
उपयोग नकए जािे हैं। इस िथ्य से, प्राणिृि मां त्र द्वारा समनपथि ईांटोां को प्राणिृि का
िाम नमल गया। इसी िरह, अज्यािी मांत्र द्वारा समनपथि ईांटोां को अज्यािी का िाम
नमल गया। लेनकि समय के सार्, एक नवशेष प्रकार की ईांटोां के पूरे ढे र को प्राणिृ ि
कहा जािे लगा, क्योांनक उस ढे र की एक या दो ईांटोां को प्राणिृि ईांटोां के रूप में

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समनपथि नकया गया र्ा। इस प्रकार, प्राणिृि का उदाहरण उपरोि िरीके से एक
िाम के दायरे को बढािे के सलए एक मुहावरा बि गया। वास्तव में , इि मामलोां में
प्राणिृि और अज्यािी शिोां का अर्थ शिोां की नवशेष सांगनि और उि अांशोां के
सांदिथ से नििाथररि होिा है सजिमें वे उपयोग नकए जािे हैं। ऐसे उपयोग को
सलांगसमबाय (सलांग का अविार) कहा जािा है।
44. िांद पांनिि िे अपिे ग्रांर् 'दिक मीमाांसा' में प्राणिृि ससद्ाांि का उल्लेख करिे
हुए यह नदखाया है नक यद्यनप 'प्रनिनिनि' शि का प्रयोग प्रारां ि में केवल छह प्रकार
के पुत्रोां के सलए नकया गया र्ा, बाद में सामान्य प्रयोग के कारण यह शि सिी बारह
प्रकार के पुत्रोां पर लागू हो गया। प्राणिृि ससद्ाांि कहिा है:
"नकसी वगथ के एक प्रमुख वस्तु की नवशेषिा पूरे वगथ को िाम दे सकिी है।"
45. प्राणिृि का शाब्दिक अर्थ है जीवि से िरिा या जीवि प्रदाि करिा; लेनकि
यह अनिव्यब्दि एक मांत्र की शुरुआि है सजसका उपयोग कुछ ईांटोां को समनपथि
करिे में नकया जािा है । इससलए यह शि एक प्रकार की ईांटोां के सलए प्रयोग होिे
लगा (प्राणिृि उपदद्यानि)। इसी प्रकार, अज्यािी शि िी एक अन्य प्रकार की ईांटोां
के सलए प्रयोग होिे लगा।
46. प्राणिृि ससद्ाांि इस मामले में िी लागू होिा है क्योांनक हमें िारिीय टे लीग्राफ
नियमोां के नियम 443 में 'ग्राहक' शि को जीवांि अर्थ (यािी उनचि व्याख्या) दे िा है ।
47. प्राणिृि ससद्ाांि का उपयोग अक्सर नकसी पाठ की व्याख्या करिे समय इसे
उदाहरणात्मक मािकर नकया जािा है , ि नक सांपूणथ। व्याख्या का उदाहरणात्मक
नियम शाब्दिक नियम से एक अलगाव है , सजसे सामान्यिः नकसी पाठ की व्याख्या
करिे समय अपिाया जािा है। हालाांनक, किी-किी शाब्दिक नियम से अलग होिा
अिुमेय होिा है , और ऐसा ही एक अलगाव उदाहरणात्मक नियम है। उदाहरण के
सलए, सांस्कृि में एक प्रससद् कर्ि है "काकेभ्यो दनि रनक्षिम" सजसका अर्थ है "दही
को कौवोां से बचाओ"। इस वाक्य में 'कौवा' शि केवल उदाहरणात्मक है , ि नक
सांपूणथ। इसका यह अर्थ िहीां है नक दही को केवल कौवोां से बचािा चानहए, लेनकि
नबब्दल्लयोां, कुिोां या गांदगी आनद से खराब होिे दे िा चानहए। इसका वास्तनवक अर्थ
यह है नक दही को सिी खिरोां से बचािा चानहए। इससलए, उपरोि कर्ि में 'कौवा'
शि केवल उदाहरणात्मक है , ि नक सांपूणथ।
48. हम एक और उदाहरण ले सकिे हैं। अमेररकी सांनविाि के अिुिेद 1 िारा 8
में कहा गया है नक काांग्रेस (अमेररकी सांसद) सेिा और िौसेिा का गठि कर सकिी
है। इसमें वायु सेिा का कोई उल्लेख िहीां है , क्योांनक 1791 में जब अमेररकी सांनविाि

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लागू हुआ र्ा, िब नवमाि िहीां र्े। पहला नवमाि राइट बांिुओां िे 1903 में बिाया र्ा।
हालाांनक, आज की वास्तनवकिा यह है नक एक आिुनिक सेिा वायु सहयोग के नबिा
िहीां लड़ सकिी। अमेररकी सांनविाि में सांशोिि करिा एक बहुि ही कनठि और
लांबी प्रनिया है क्योांनक इसमें काांग्रेस के दोिोां सदिोां के दो-निहाई बहुमि और राज्योां
के िीि-चौर्ाई की अिुमनि की आवश्यकिा होिी है । जब िक यह होिा है , दु श्मि
दे श पर आिमण करके उसे कब्जा कर सकिा है। इससलए, 'सेिा और िौसेिा'
शिोां को उदाहरणात्मक मािा जािा चानहए, ि नक सांपूणथ, और इिका वास्तनवक
अर्थ दे श की सुरक्षा के सलए आवश्यक सिी सशस्त्र बल हैं (सजसमें वायु सेिा िी
शानमल है)। इस प्रकार, अमेररकी सांनविाि के अिुिेद 1 िारा 8 की व्याख्या श्रुनि
नियम (शाब्दिक नियम) के बजाय सलांग नियम के आिार पर की जािी चानहए।
अिुिेद 1 िारा 8 में 'सेिा और िौसेिा' शिोां को शाब्दिक रूप से िहीां, बब्दि
सुझावात्मक रूप में समझा जािा चानहए। दू सरे शिोां में , ये केवल उदाहरणात्मक
हैं, और इिका वास्तनवक अर्थ दे श की सुरक्षा के सलए आवश्यक सिी सशस्त्र बल
हैं।
49. हम मैक्सवेल के 'कािूिोां की व्याख्या' का िी उल्लेख कर सकिे हैं , सजसमें
कहा गया है:
"लेनकि यह एक और मूलिूि नियम है नक कोई चीज जो कािूि के शिोां के िीिर
है, वह कािूि के िीिर िहीां मािी जाएगी जब िक नक वह नविानयका के वास्तनवक
इरादे के िीिर ि हो, और शिोां को, यनद पयाथप्त लचीला हो, उस अर्थ में समझा
जािा चानहए जो व्याकरसणक रूप से कम सही हो सकिा है , लेनकि उस इरादे के
सार् अनिक सामांजस् रखिा हो। िाषा शायद ही किी इििी स्पष्ट होिी है नक उसे
एक से अनिक अर्थ में प्रयोग ि नकया जा सके; और सिी मामलोां में इसके शाब्दिक
और प्रार्नमक अर्थ पर कठोरिा से बिे रहिा इसके वास्तनवक अर्थ को कई बार खो
दे गा। यनद उि कािूिोां को शाब्दिक अर्थ नदया गया होिा जो एक सािारण व्यब्दि
को पुजारी पर 'हार् रखिे' से मिा करिे र्े और सड़क पर खूि बहािे वाले सिी को
दां निि करिे र्े, िो एक सािारण व्यब्दि जो हनर्यार से पुजारी को घायल करिा, वह
प्रनिबांि के अांिगथि िहीां आिा, और एक सजथि जो नकसी की जाि बचािे के सलए
खूि निकालिा, वह दां ि के योग्य होिा। शाब्दिक व्याख्या के अिुसार, मोहम्मद II
द्वारा वेनिस के गविथर के शरीर को आिा काटिा उसके वादे का उल्लांघि िहीां र्ा
क्योांनक उसिे ससर बचािे का वादा नकया र्ा; ि ही िैमूर द्वारा एक गैरीसि को सजांदा
दफिािा उसके खूि ि बहािे के वादे का उल्लांघि र्ा।"

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मैक्सवेल यह भी कहते हैं:
"नकसी कािूि के शिोां को उस अर्थ में समझा जािा चानहए जो उस अनिनियम के
नवषय और नविानयका के उद्दे श्य के सार् सबसे अनिक सामांजस् रखिा हो। उिका
अर्थ केवल व्याकरसणक या शि-सािि की दृनष्ट से िहीां, बब्दि उस नवषय या
अवसर के सांदिथ में और प्राप्त नकए जािे वाले उद्दे श्य के अिुसार समझा जािा
चानहए।" (जोर नदया गया)
50. इस प्रकार, दोिोां व्याख्या प्रणासलयोां में, मीमाांसा प्रणाली और मैक्सवेल की
प्रणाली, यह बल नदया गया है नक नकसी कािूि के इरादे को अक्सर समझिा
आवश्यक होिा है िानक उसकी सही व्याख्या की जा सके, और यह िहीां नक
न्यायालय किी िी शाब्दिक व्याख्या नियम से अलग िहीां हो सकिा। यह सब सांदिथ ,
नवषय-वस्तु, और उस प्राविाि के उद्दे श्य पर नििथर करिा है।
51. जैसा नक पहले कहा गया है , नियम 443 की व्याख्या करिे समय हमें एक ऐसी
व्याख्या दे िी होगी जो इस नियम के इरादे को पूरा करे , जो यह है नक टे लीफोि नबलोां
का िुरांि िुगिाि नकया जािा चानहए, अन्यर्ा नविाग के पास टे लीफोि सेवाओां को
नविपोनषि करिे के सलए आवश्यक िि की कमी होगी जो उपिोिाओां को प्रदाि
की जािी हैं। आब्दखरकार, टे लीफोि नविाग के कमथचाररयोां का वेिि दे िा होिा है ,
टे लीफोि उपकरणोां को बिाए रखिा, मरम्मि करिा और आिुनिक बिाए रखिा
होिा है। किी-किी िई िकिीक को शुरू करिा पड़िा है। नवनिन्न अन्य
आवश्यकिाएां हो सकिी हैं सजिके सलए िि की आवश्यकिा होिी है , और यह सब
केवल ििी सांिव है जब टे लीफोि नबलोां का समय पर िुगिाि नकया जाए। इससलए,
हमारे नवचार में, नियम 2(pp) में 'ग्राहक' शि को एक व्यापक अर्थ नदया जािा
चानहए, जैसा नक पहले कहा गया है।
52. उपरोि के आिार पर, हमें इस अपील में कोई िाकि िहीां नदखिी है , और
इसे खाररज नकया जािा है। कोई लागि का आदे श िहीां होगा।

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 भारत का सवोच्च न्यायालय
सुरजीत ससांह ….अपीलकिाथ
बनाम
महानगर टे लीफोन ननगम सलनमटे ड…. प्रनिवादी
ननणाय निनाांक: 21 अप्रैल, 2008
ससनवल अपील सांख्या 5354 वर्ा 2002
(2009) 16 सुप्रीम कोटा केसेज 722
पीठ: माििीय न्यायमूनिथ एच. के. सेमा एवां माििीय न्यायमूनिथ माकंिे य काटजू
1. यह नवशेष अिुमनि से दायर की गई अपील नदल्ली उच्च न्यायालय की निवीजि बेंच के नदिाांक
10.1.2002 के प्रिानवि निणथय के ब्दखलाफ है , जो LPA No. 665 of 2001 में पाररि नकया गया र्ा।
2. अपीलकिाथ की ओर से श्री आर.के. कपूर, वकील और प्रनिवादी की ओर से श्री अमरें ि सरि, अनिररि
सॉसलससटर जिरल को सुिा गया।
3. मामले के िथ्य यह हैं नक अपीलकिाथ और उसकी पत्नी नदल्ली के राजौरी गािथ ि में अपिे आवास पर
सार् रहिे हैं। उस आवास पर अपीलकिाथ सुरजीि ससांह के िाम से एक टे लीफोि लाइि िांबर 5121187
है और उसी आवास पर अपीलकिाथ की पत्नी के िाम से एक अन्य टे लीफोि लाइि िांबर 5416493 है।
अपीलकिाथ के िाम से एक िीसरी टे लीफोि लाइि िांबर 3265301 है , जो अपीलकिाथ के व्यवसानयक
पररसर 1195, चहराहट नबब्दडांग, जामा मब्दिद, नदल्ली में लगी हुई है।
4. ऐसा प्रिीि होिा है नक अपीलकिाथ की पत्नी के िाम वाली लाइि िांबर 5416493 के सांबांि में टे लीफोि
बकाया र्ा। इस लाइि के बकाया का िुगिाि ि करिे के कारण, अपीलकिाथ के िाम वाली अन्य दो
लाइिें, सजिमें से एक उसके आवासीय पररसर में लाइि िांबर 5121187 और दू सरी उसके व्यवसानयक
पररसर में लाइि िांबर 3265301 र्ी, को निस्किेक्ट कर नदया गया।
5. अपीलकिाथ का िकथ र्ा नक उसके अपिे िाम वाली टे लीफोि लाइिें , सजिमें उसके आवास पर लाइि
िांबर 5121187 और उसके व्यवसानयक पररसर पर लाइि िांबर 3265301 शानमल हैं , को उसकी पत्नी
के िाम वाली लाइि िांबर 5416493 के बकाया के कारण निस्किेक्ट िहीां नकया जािा चानहए र्ा। उसिे
िकथ नदया नक वह और उसकी पत्नी दो अलग-अलग कािूिी इकाइयााँ हैं , और उसे उसकी पत्नी की गलिी
के सलए दां निि िहीां नकया जा सकिा।
6. अपीलकिाथ िे नदल्ली उच्च न्यायालय में एक ररट यानचका दायर की, सजसे एकल न्यायािीश द्वारा
नदिाांक 25.9.2001 के निणथय में खाररज कर नदया गया और उच्च न्यायालय की निवीजि बेंच के समक्ष
उसकी अपील को िी नदिाां क 10.1.2002 के प्रिानवि निणथय में खाररज कर नदया गया। इससलए, यह
अपील इस न्यायालय में दायर की गई है।
7. अपीलकिाथ के वकील िे िारिीय टे लीग्राफ नियमोां के नियम 443 का हवाला नदया, जो इस प्रकार है:

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"443. िुगिाि में चूक -- यनद, नियि निनर् पर या उससे पहले, टे लीफोि सेवा के सलए नकराया या अन्य
शुि का िुगिाि ग्राहक द्वारा इि नियमोां के अिुसार िहीां नकया जािा है , या कॉल या फोिोग्राम के
शुि के नबल या ग्राहक से अन्य बकाया का िुगिाि उसके द्वारा समय पर िहीां नकया जािा है , िो उसके
द्वारा नकराए पर ली गई नकसी िी टे लीफोि या टे लीफोिोां या टे लेक्स सेवा को नबिा सूचिा के निस्किेक्ट
नकया जा सकिा है। निस्किेक्ट नकए गए टे लीफोि या टे लीफोिोां या टे लेक्स को, यनद टे लीग्राफ प्रानिकारी
उनचि समझे, िो पुिः जोड़ा जा सकिा है , यनद चूक करिे वाला ग्राहक बकाया रासश और पुिः किेक्शि
शुि का िुगिाि कर दे िा है , सार् ही उस अांिराल अवनि के सलए नकराया, जो टे लीग्राफ प्रानिकारी
द्वारा समय-समय पर नििाथररि नकया जाए। ग्राहक को उपरोि सिी शुि का िुगिाि उस अवनि के
िीिर करिा होगा, जो टे लीग्राफ प्रानिकारी द्वारा समय-समय पर नििाथररि की जाए।"
अपीलकिाथ के वकील िे िकथ नदया नक नियम 443 के आलोक में, अपीलकिाथ के िाम वाली टे लीफोि
लाइिोां को उसकी पत्नी के िाम वाली लाइि के बकाया के कारण निस्किेक्ट िहीां नकया जािा चानहए
र्ा।
8. अपीलकिाथ के वकील िे हमारा ध्याि बॉम्बे उच्च न्यायालय के एकल न्यायािीश के निणथय िॉ. बी.वी.
मािेक बिाम महािगर टे लीफोि निगम सलनमटे ि AIR 1996 Bom 53 की ओर आकनषथि नकया। हमिे
उि निणथय का साविािीपूवथक अध्ययि नकया है और पाया है नक यह निन्न है। उस मामले में ,
यानचकाकिाथ की टे लीफोि लाइि को उसके नपिा के िाम वाली अन्य लाइि के बकाया के कारण
निस्किेक्ट कर नदया गया र्ा। उच्च न्यायालय के एकल न्यायािीश िे मािा नक नविाग ग्राहक के टे लीफोि
को उसके ररश्तेदार द्वारा की गई चूक के कारण निस्किेक्ट िहीां कर सकिा। उि बॉम्बे उच्च न्यायालय
के निणथय में यह उल्लेख िहीां नकया गया है नक यानचकाकिाथ का नपिा आनर्थक रूप से यानचकाकिाथ पर
नििथर र्ा।
9. विथमाि मामले में, जो हमारे समक्ष है , यह ररकॉिथ पर आया है नक अपीलकिाथ की पत्नी एक गृनहणी
है, जो अपीलकिाथ के सार् नदल्ली के राजौरी गािथ ि में उसके आवास पर रहिी है। यह आरोप िहीां लगाया
गया है नक अपीलकिाथ की पत्नी के पास नकसी व्यवसाय या सेवा आनद से स्विांत्र आय का स्रोि है। इि
पररब्दिनियोां में, यह अिुमाि लगाया जा सकिा है नक अपीलकिाथ की पत्नी के िाम वाली टे लीफोि लाइि
का नबल अपीलकिाथ द्वारा ही िुगिाि नकया जा रहा र्ा, क्योांनक उसकी पत्नी के पास स्विांत्र आय का
स्रोि िहीां है और वह आनर्थक रूप से उस पर नििथर है ।
10. हमारे नवचार में, हमें उि मामलोां के बीच अांिर करिा होगा जहाां एक ररश्तेदार, जो एक ही घर में
रहिा है , के पास स्विांत्र आय का स्रोि है , और उि मामलोां के बीच जहाां एक ररश्तेदार दू सरे पर नििथर
है। पूवथ मामले में, यनद दो अलग-अलग लाइिें हैं , सजिमें से एक उस ररश्तेदार के िाम पर है जो आनर्थक
रूप से स्विांत्र है और उसका अपिा आय स्रोि है , और दू सरी यानचकाकिाथ के िाम पर है , िो यह मािा
जा सकिा है नक ररश्तेदार द्वारा बकाया का िुगिाि ि करिे के कारण यानचकाकिाथ की टे लीफोि लाइि

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को निस्किेक्ट िहीां नकया जा सकिा। हालाांनक, बाद वाले मामलोां में, यािी जहाां एक ररश्तेदार आनर्थक
रूप से दू सरे पर नििथर है , ब्दिनि, हमारे नवचार में, पूरी िरह से निन्न है। उदाहरण के सलए, यनद नकसी
नपिा के िाबासलग बच्चे के िाम पर एक टे लीफोि लाइि है , और नपिा के िाम पर एक अन्य टे लीफोि
लाइि है , और दोिोां एक ही घर में सार् रहिे हैं , िो स्पष्ट है नक िाबासलग बच्चे के िाम वाली टे लीफोि
लाइि का नबल नपिा द्वारा िुगिाि नकया जा रहा है । इससलए, हमारे नवचार में, िाबासलग बच्चे के िाम
वाली टे लीफोि लाइि के नबल का िुगिाि ि करिे के कारण नपिा की टे लीफोि लाइि को निस्किेक्ट
नकया जा सकिा है।
11. इसी िरह, ऐसा मामला िी हो सकिा है जहाां पनि और पत्नी एक ही घर में रहिे हैं और दोिोां के पास
स्विांत्र आय के स्रोि हैं , और पत्नी स्वयां अपिे िाम वाली टे लीफोि लाइि के नबल का िुगिाि करिी है ,
जबनक पनि अपिी टे लीफोि लाइि के नबल का िुगिाि करिा है। ऐसे मामले में , पत्नी के नबल का
िुगिाि ि करिे के कारण पनि की टे लीफोि लाइि को निस्किेक्ट िहीां नकया जा सकिा।
12. जैसा नक ऊपर कहा गया है , बॉम्बे उच्च न्यायालय के एकल न्यायािीश के निणथय में यह उल्लेख िहीां
नकया गया है नक नपिा आनर्थक रूप से यानचकाकिाथ पर नििथर र्ा। इससलए, उि निणथय विथमाि नववाद
को िय करिे में कोई मदद िहीां कर सकिा, क्योांनक आवश्यक िथ्यात्मक नववरण का अिाव है ।
13. अपीलकिाथ के वकील िे िब हमारा ध्याि आां ध्र प्रदे श उच्च न्यायालय के एकल न्यायािीश के निणथय
वाई. नप्रध्वी कुमार बिाम जिरल मैिेजर, टे लीकॉम निब्दस्टिक्ट, हैदराबाद AIR 1993 AP 131 की ओर
आकनषथि नकया। हमिे उि निणथय का साविािीपूवथक अध्ययि नकया है और पाया है नक यह निणथय िी
निन्न है। उि निणथय में ऐसा प्रिीि होिा है नक मािा के िाम पर एक टे लीफोि लाइि र्ी और पुत्र के
िाम पर एक अन्य टे लीफोि लाइि र्ी, और दोिोां सार् रहिे र्े। मािा के िाम पर बकाया र्ा और आां ध्र
प्रदे श उच्च न्यायालय िे मािा नक उस ब्दिनि में पुत्र पर दानयत्व िहीां िाला जा सकिा और उसकी
टे लीफोि लाइि को निस्किेक्ट िहीां नकया जा सकिा। उि आां ध्र प्रदे श उच्च न्यायालय के निणथय से यह
स्पष्ट िहीां है नक मािा आनर्थक रूप से अपिे पुत्र पर नििथर र्ी। यह सांिव है नक मािा आनर्थक रूप से
अपिे पनि पर नििथर र्ी, जो उसके नबल का िुगिाि कर रहा र्ा। यह िी सांिव है नक मािा एक
कामकाजी मनहला र्ी, सजसके पास स्विांत्र आय का स्रोि र्ा। इससलए, विथमाि मामले में अपीलकिाथ
उि आां ध्र प्रदे श उच्च न्यायालय के निणथय से कोई लाि प्राप्त िहीां कर सकिा।
14. अपीलकिाथ के वकील िे सांिोख ससांह बिाम निवीजिल इां जीनियर, टे लीफोन्स, सशलाांग और अन्य
AIR 1990 गुवाहाटी 47 के निणथय पर िी िरोसा करिे का प्रयास नकया। हालाांनक, ऐसा प्रिीि होिा है
नक उि निणथय के ब्दखलाफ इस न्यायालय में ससनवल अपील सांख्या 2849/1991 शीषथक निवीजिल
इां जीनियर टे लीफोि और अन्य बिाम सरदार सांिोख ससांह में अपील दायर की गई र्ी, सजसे इस न्यायालय
द्वारा नदिाांक 22.4.2001 को निणीि नकया गया र्ा। उि निणथय में यह मािा गया नक गुवाहाटी उच्च

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न्यायालय के सांिोख ससांह बिाम निवीजिल इां जीनियर टे लीफोि और अन्य के निणथय को एक नमसाल के
रूप में िहीां मािा जाएगा।
15. दू सरी ओर, प्रनिवादी के वकील िे नदल्ली उच्च न्यायालय की निवीजि बेंच के निणथय मदि िायल
और प्राण कृष्ण िायल बिाम एमटीएिएल 1989 (16) DRJ 51, नदल्ली उच्च न्यायालय के एकल
न्यायािीश के निणथय राजीव गोसेि बिाम एमटीएिएल, ससनवल ररट यानचका सांख्या 6343/1981, जो
20.4.2000 को निणीि नकया गया र्ा, और नदल्ली उच्च न्यायालय के एकल न्यायािीश के निणथय सुख
दयाल िरूला बिाम एमटीएिएल, ससनवल ररट यानचका सांख्या 1693/1996, जो 26.9.1997 को निणीि
नकया गया र्ा, पर िरोसा नकया है। इि निणथयोां में नदल्ली उच्च न्यायालय िे यह मािा है नक एक ग्राहक
की टे लीफोि लाइि को उसके ररश्तेदार के बकाया के कारण निस्किेक्ट नकया जा सकिा है , जो उसी
पररसर में रहिा है। वकील िे गुजराि उच्च न्यायालय के निणथय इां िवदि प्राणलाल शाह बिाम जिरल
मैिेजर, अहमदाबाद टे लीफोि निब्दस्टिक्ट खारपुर, अहमदाबाद और अन्य AIR 1990 गुजराि 85 पर िी
िरोसा नकया है , सजसमें यह मािा गया नक यानचकाकिाथ की टे लीफोि लाइि को निस्किेक्ट नकया जा
सकिा है यनद उस फमथ, सजसमें वह साझेदार है , द्वारा फमथ के िाम वाली टे लीफोि लाइि के बकाया का
िुगिाि िहीां नकया जािा है ।
16. अपीलकिाथ के वकील िे हमारा ध्याि िारिीय टे लीग्राफ नियम, 1951 के नियम 2(पीपी) की ओर
आकनषथि नकया है , जो 'ग्राहक' को इस प्रकार पररिानषि करिा है:
" 'ग्राहक' का अर्थ उस व्यब्दि से है , सजसे इि नियमोां के िहि या नकसी समझौिे के िहि एक इां स्टालेशि
के माध्यम से टे लीफोि सेवा प्रदाि की गई है ।"
17. अपीलकिाथ के वकील िे िकथ नदया नक नियम 2(पीपी) में ग्राहक की पररिाषा के आलोक में ,
अपीलकिाथ के िाम वाली टे लीफोि लाइिोां को उसकी पत्नी के िाम वाली लाइि के बकाया के कारण
निस्किेक्ट िहीां नकया जािा चानहए र्ा।
18. हम पहले ही ऊपर कह चुके हैं नक जहाां दो ररश्तेदार एक ही घर में रहिे हैं , वहाां उस व्यब्दि के िाम
वाली टे लीफोि लाइि, जो आनर्थक रूप से नकसी अन्य (जैसे पनि, नपिा आनद) पर नििथर है , और उस
व्यब्दि के िाम वाली टे लीफोि लाइि, सजसके पास स्विांत्र आय का स्रोि है और जो अपिे टे लीफोि नबल
का िुगिाि स्वयां करिा है , के बीच अांिर करिा होगा। पूवथ मामले में , यािी जहाां एक व्यब्दि आनर्थक
रूप से नकसी अन्य पर नििथर है , जो उसके टे लीफोि नबल का िुगिाि करिा है , वहाां िाममात्र ग्राहक के
टे लीफोि नबल का िुगिाि ि करिे के कारण उस अन्य ररश्तेदार के िाम वाली टे लीफोि लाइि को
निस्किेक्ट नकया जा सकिा है , सजस पर ग्राहक नििथर है।
19. अपीलकिाथ के वकील िे आपनि जिाई नक ऐसी व्याख्या िारिीय टे लीग्राफ नियमोां के नियम 443
और नियम 2(पीपी) में प्रयुि िाषा के नवपरीि होगी।

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20. यह सच है नक नियम 443 के शाब्दिक अर्थ के आिार पर, हमें अपीलकिाथ के वकील के िकथ को
स्वीकार करिा होगा। हालाांनक, हमारे नवचार में, इस मामले में शाब्दिक नियम को अपिािा िहीां है ,
क्योांनक हमें नियम के उद्दे श्य को िी दे खिा होगा। उद्दे श्य स्पष्ट रूप से यह र्ा नक टे लीफोि बकाया का
समय पर िुगिाि नकया जाए, अन्यर्ा टे लीफोि नविाग को िुकसाि होगा। इससलए, हमें ऐसी व्याख्या
अपिािी होगी जो नियम 443 के उद्दे श्य को प्रिावी और आगे बढाए, यािी टे लीफोि नबल का समय पर
िुगिाि नकया जाए।
21. एक पत्नी के मामले में, जो गृनहणी है और आनर्थक रूप से अपिे पनि पर नििथर है , स्पष्ट है नक उसके
िाम वाली टे लीफोि लाइि का नबल उसके पनि द्वारा िुगिाि नकया जा रहा है , ि नक उसके द्वारा।
इससलए, हमें इस मामले में उद्दे श्यपूणथ व्याख्या (purposive construction) अपिािा होगा और व्याख्या
के शाब्दिक नियम का पालि िहीां करिा होगा।
22. हालाांनक, निस्सांदेह, आमिौर पर नकसी कािूि या वैिानिक नियम की व्याख्या करिे समय शाब्दिक
नियम को लागू नकया जािा चानहए, लेनकि शाब्दिक नियम हमेशा नकसी कािूि में प्राविाि की व्याख्या
का एकमात्र नियम िहीां है , और असािारण मामलोां में शाब्दिक नियम से हटा जा सकिा है। जैसा नक
इस न्यायालय के सांनविाि पीठ के निणथय आर.एल. अरोड़ा बिाम उिर प्रदे श राज्य और अन्य 1964 (6)
SCR 784 ए.आई.आर पेज 1236-37 पैरा 9 में कहा गया है:
"9…इसके अलावा, शाब्दिक व्याख्या हमेशा नकसी कािूि में प्राविाि की एकमात्र व्याख्या
िहीां होिी है , और अदालि को उस सांदिथ को दे खिा होगा सजसमें शिोां का उपयोग नकया गया है और
उि पररब्दिनियोां को दे खिा होगा सजिमें कािूि बिाया गया र्ा, यह िय करिे के सलए नक क्या उपयोग
नकए गए शिोां के पीछे कुछ निनहि है जो कािूि के प्राविाि में प्रयुि शिोां के शाब्दिक अर्थ को
नियांनत्रि करे गा। यनद सांिव हो िो कािूि में प्रयुि व्यापक िाषा को उस सांदिथ से नियांनत्रि करिा
अिुमेय है , सजसमें शिोां का उपयोग नकया गया है और कािूि बिािे वाले निकाय का इरादा, जो उि
पररब्दिनियोां से स्पष्ट हो सकिा है सजिमें नवशेष प्राविाि बिाया गया र्ा।" (जोर नदया गया)
. इससलए यह निष्कषथ निकलिा है नक नकसी कािूि की व्याख्या करिे के सलए किी-किी उस सांदिथ पर
नवचार करिा होिा है सजसमें इसे बिाया गया है और उस उद्दे श्य और लक्ष्य पर नवचार करिा होिा है
सजसे यह प्राप्त करिा चाहिा है। एक बहुि ही शाब्दिक व्याख्या किी-किी कािूि के उद्दे श्य को ही
नवफल कर सकिी है , और अदालि को ऐसे दृनष्टकोण से बचिा चानहए।
23. नहांदुस्ताि लीवर सलनमटे ि बिाम अशोक नवष्णु काटे और अन्य 1995(6) SCC 326 (पैरा 42) में इस
न्यायालय िे कहा:
"42…फ्ाांससस बेनियि िे अपिी पुस्तक 'स्टै च्यूटरी इां टरनप्रटे शि' के दू सरे सांस्करण में
फांक्शिल कांस्टि क्शि रूल (कायाथत्मक निमाथण नियम) पर चचाथ की है। उद्दे श्यपूणथ निमाथण की प्रकृनि पर
पुस्तक के िाग XX में पृष्ठ 659 पर इस प्रकार चचाथ की गई है:

BY- Satyendra Kumar Tripathi, Advocate Roll no. A/S-0642/2012, MOBILE NO.- 8004169683

155
'नकसी अनिनियम का उद्दे श्यपूणथ व्याख्या वह है जो नविायी उद्दे श्य को प्रिावी करिा है -
(ए) अनिनियम के शाब्दिक अर्थ का पालि करके, जहाां वह अर्थ नविायी उद्दे श्य के अिुरूप है (इस कोि
में इसे उद्दे श्यपूणथ-और-शाब्दिक व्याख्या कहा गया है), या
(बी) एक ििावपूणथ अर्थ लागू करके, जहाां शाब्दिक अर्थ नविायी उद्दे श्य के अिुरूप िहीां है (कोि में इसे
उद्दे श्यपूणथ और ििावपूणथ व्याख्या कहा गया है)।'
पुस्तक के पृष्ठ 661 पर, लेखक िे 'उद्दे श्यपूणथ व्याख्या ' नवषय पर शाब्दिक व्याख्या के नवपरीि चचाथ की
है। लेखक िे निम्नसलब्दखि नटप्पणी की है:
'शाब्दिक व्याख्या के सार् िुलिा - हालाांनक 'उद्दे श्यपूणथ व्याख्या' शि िया िहीां है , लेनकि इसका फैशि
में प्रवेश अपीलीय अदालिोां द्वारा शाब्दिक व्याख्या से दू र जािे की प्रवृनि को दशाथिा है। लॉिथ निप्लॉक
िे 1975 में कहा र्ा: 'यनद कोई नपछले 30 वषों में वैिानिक व्याख्या के प्रश्ोां पर [हाउस ऑफ लॉिथ स]
के वास्तनवक निणथयोां को दे खिा है , िो कोई िी शुद् रूप से शाब्दिक से दू र वैिानिक प्राविािोां के
उद्दे श्यपूणथ व्याख्या की ओर एक प्रवृनि के साक्ष्य से प्रिानवि हुए नबिा िहीां रह सकिा है।' इस मामले
को लॉिथ निप्लॉक िे इस प्रकार सांक्षेप में प्रस्तुि नकया-
...मैं उद्दे श्यपूणथ व्याख्या अपिािे से नहचनकचािा िहीां हां , जहाां वैिानिक िाषा के शाब्दिक अर्थ को लागू
करिे से ऐसे पररणाम सामिे आएां गे जो स्पष्ट रूप से अनिनियम के उद्दे श्य को नवफल कर दें गे। लेनकि
ऐसा करिे हुए, न्यायालय का कायथ व्याख्या का ही रहिा है , िले ही इसमें अनिनियम में ऐसे शिोां को
पढिा शानमल हो, जो स्पष्ट रूप से इसमें शानमल िहीां हैं ।' (जोर नदया गया) हम उपरोि व्यि दृनष्टकोण
से सहमि हैं।
24. हमारे नवचार में, इस मामले में, िारिीय टे लीग्राफ नियमोां के नियम 443 की व्याख्या करिे समय
उद्दे श्यपूणथ व्याख्या अपिािा होगा।
25. हम इस मामले को हमारे पारां पररक व्याख्या ससद्ाांिोां के दृनष्टकोण से िी नवचार कर सकिे हैं। महाि
सांस्कृि व्याकरणाचायथ िागेश िट्ट िे अपिी पुस्तक 'परम लघु मांजूषा' में कहा है नक एक शि या वाक्याांश
के िीि अर्थ हो सकिे हैं:

"(i) अनििा अर्ाथि शाब्दिक अर्थ; (ii) लक्षणा अर्ाथि सांकेिात्मक या सुझावात्मक अर्थ; (iii) व्यांजिा अर्ाथि
अलांकाररक अर्थ।
सामान्यिः शाब्दिक अर्थ का पालि नकया जािा है , लेनकि किी-किी सांकेिात्मक या अलांकाररक अर्थ
अपिाए जािे हैं । सांकेिात्मक अर्थ (लक्षणा) के सांदिथ में अक्सर उद्ृि नकया जािे वाला उदाहरण है
'गङ्गायाां घोषः ' अर्ाथि "मैं गांगा पर रहिा हाँ ।" इस वाक्य का शाब्दिक अर्थ िहीां सलया जा सकिा क्योांनक
कोई िी गांगा िदी की सिह पर िहीां रह सकिा। इससलए इसका अर्थ यह सलया जािा चानहए नक "मैं गांगा
िदी के नकिारे रहिा हाँ ।"

BY- Satyendra Kumar Tripathi, Advocate Roll no. A/S-0642/2012, MOBILE NO.- 8004169683

156
िीसरे अर्थ व्यांजिा के सांदिथ में अक्सर उद्ि
ृ नकया जािे वाला उदाहरण है 'गिोऽस्तमकथः ' सजसका अर्थ
है:
"सूयथ अस्त हो गया है।" यहााँ वास्तनवक अर्थ का सूयथ या उसके अस्त होिे से कोई सांबांि िहीां है , बब्दि
इसका वास्तनवक अर्थ है "दीपक जलाओ" या "चलो घर चलें" (क्योांनक सूयथ अस्त हो गया है)।
26. हमारे नवचार में, विथमाि मामले में हमें श्रुनि या अनििा (शाब्दिक) नियम के बजाय लक्षणा (या सलांग)
नियम को अपिािा होगा। दू सरे शिोां में , िारिीय टे लीग्राफ नियम 443 को उद्दे श्यपूणथ अर्थ में
व्याख्यानयि करिा होगा। इससलए, एक व्यब्दि के िाम पर टे लीफोि लाइि, जो वास्तव में दू सरे व्यब्दि
के िाम पर टे लीफोि लाइि से सांबांनिि नबलोां का िुगिाि कर रहा है , जो आनर्थक रूप से पहले व्यब्दि
पर नििथर है , को बाद वाले के िाम पर टे लीफोि लाइि के नबलोां के िुगिाि ि करिे के कारण निस्किेक्ट
नकया जा सकिा है। ऐसी व्याख्या नियम 443 के उद्दे श्य को प्रिावी बिाएगी, जो यह है नक टे लीफोि
नबलोां का िुरांि िुगिाि नकया जािा चानहए।
27. सार् ही, इससे कोई फकथ िहीां पड़िा नक टे लीफोि लाइि आवास पर है या व्यावसानयक पररसर में ,
िले ही दोिोां पूरी िरह से अलग होां। इससलए हमारे नवचार में , अपीलकिाथ के िाम पर दोिोां टे लीफोि
लाइिें, एक उसके आवास पर और दू सरी उसके व्यावसानयक पररसर में , उसकी आनश्रि पत्नी के िाम
पर टे लीफोि लाइि के बकाया िुगिाि ि करिे के कारण निस्किेक्ट की जा सकिी हैं।
28. हम नियम 443 की व्याख्या करिे में मीमाांसा के नियमोां का िी उपयोग कर सकिे हैं।
29. यह गहरा खेदजिक है नक हमारे न्यायालयोां में वकील मैक्सवेल और िेज़ का हवाला दे िे हैं , लेनकि
कोई िी मीमाांसा के व्याख्या ससद्ाांिोां का उल्लेख िहीां करिा। आज हमारे िर्ाकनर्ि सशनक्षि लोग हमारे
पूवथजोां की महाि बौसद्क उपलब्दियोां और उिके द्वारा हमें सौांपी गई बौसद्क सांपदा से लगिग अिजाि
हैं। मीमाांसा के व्याख्या ससद्ाांि उस बौसद्क सांपदा का नहस्सा हैं , लेनकि यह दे खकर दु ख होिा है नक
इलाहाबाद उच्च न्यायालय के ित्कालीि मुख्य न्यायािीश सर जॉि एज के निणथय, बेिी प्रसाद बिाम
हरदई दे वी (1892) ILR 14 All 67 (FB) में इि ससद्ाां िोां के उल्लेख के अलावा, हमारे अपिे दे श में िी
इि ससद्ाांिोां का लगिग कोई उपयोग िहीां नकया गया है (हम में से एक, न्यायमूनिथ एम. काटजू के
अलावा)।
30. यह उल्लेख नकया जा सकिा है नक मीमाांसा के व्याख्या नियम हमारे पारां पररक व्याख्या ससद्ाांि र्े ,
सजिका उपयोग ढाई हजार वषों से नकया जा रहा है , जो जैनमिी द्वारा प्रनिपानदि नकए गए र्े और सजिकी
व्याख्या शाबर, कुमाररल िट्ट, प्रिाकर आनद िे की र्ी। इि मीमाांसा ससद्ाांिोां का नियनमि रूप से हमारे
महाि न्यायनवदोां जैसे नवज्ञािेश्वर (नमिाक्षरा के लेखक), जीमूिवाहि (दायिाग के लेखक), िांद पांनिि
आनद द्वारा उपयोग नकया जािा र्ा, जब िी उन्हें नवनिन्न स्मृनियोां के बीच कोई सांघषथ या अस्पष्टिा या
असांगनि नमलिी र्ी। कोई कारण िहीां है नक हम उनचि अवसरोां पर इि ससद्ाांिोां का उपयोग िहीां कर
सकिे। हालाांनक, यह गहरा खेद का नवषय है नक इि ससद्ाांिोां का हमारे न्यायालयोां में शायद ही किी

BY- Satyendra Kumar Tripathi, Advocate Roll no. A/S-0642/2012, MOBILE NO.- 8004169683

157
उपयोग नकया गया है । हमारे सांनविाि या नकसी अन्य कािूि में कहीां िी यह उल्लेख िहीां है नक न्यायालय
केवल मैक्सवेल के व्याख्या ससद्ाांिोां का ही उपयोग कर सकिा है । हम नकसी िी व्याख्या प्रणाली का
उपयोग कर सकिे हैं जो हमें नकसी कनठिाई को हल करिे में मदद करिी है। कुछ ब्दिनियोां में मैक्सवेल
के ससद्ाांि अनिक उपयुि होांगे, जबनक अन्य ब्दिनियोां में मीमाांसा के ससद्ाांि अनिक उपयुि हो सकिे
हैं।
31. मीमाांसा पर लगिग सिी पुस्तकें सांस्कृि में हैं , लेनकि एक अिी पुस्तक है , 'मीमाांसा रूल्स ऑफ
इां टरनप्रटे शि' जो प्रोफेसर के.एल. सरकार द्वारा टै गोर लॉ लेक्चर सीरीज़ में प्रकासशि की गई है , सजसे
दे खा जा सकिा है।
32. यह उल्लेख नकया जा सकिा है नक मीमाांसा के व्याख्या नियम वैनदक यज्ञोां को करिे में आिे वाली
व्यावहाररक कनठिाइयोां को हल करिे के सलए बिाए गए र्े। नवनिन्न यज्ञोां को करिे के नियम ब्राह्मण
ग्रांर्ोां में नदए गए हैं , जैसे शिपर् ब्राह्मण, ऐिरे य ब्राह्मण, िैनिरीय ब्राह्मण आनद। ब्राह्मण ग्रांर्ोां में कई
अस्पष्टिाएां , सांघषथ, असांगनियाां , लोप आनद र्े, और इससलए इस उद्दे श्य के सलए व्याख्या के ससद्ाांि बिाए
गए। इस प्रकार मीमाांसा ससद्ाांि मूल रूप से िानमथक उद्दे श्योां के सलए बिाए गए र्े , लेनकि वे इििे
िकथसांगि और िानकथक र्े नक बाद में उिका उपयोग कािूि, व्याकरण, िकथशास्त्र, दशथि आनद में नकया
जािे लगा, अर्ाथि वे सावथिौनमक अिुप्रयोग के हो गए।
33. जैनमिी िे सूत्र 6:3:9 में कहा है:
"जब उद्दे श्य और सामग्री के बीच सांघषथ होिा है , िो उद्दे श्य को प्रार्नमकिा दी जािी चानहए, क्योांनक
नििाथररि सामग्री की अिुपब्दिनि में एक नवकल्प का उपयोग नकया जा सकिा है , क्योांनक सामग्री उद्दे श्य
के अिीि है ।"
34. इसे समझािे के सलए यह उल्लेख नकया जा सकिा है नक ब्राह्मण ग्रांर्ोां में कहा गया है नक नििाथररि
यूप (यज्ञ के सलए पशु को बाांििे वाला खांिा) खनदर लकड़ी से बिाया जािा चानहए। हालाांनक, खनदर
लकड़ी कमजोर होिी है जबनक बांिा हुआ पशु बेचैि हो सकिा है। इससलए, मीमाांसा ससद्ाांि (जैसा नक
ऊपर बिाया गया है) यह अिुमनि दे िा है नक यूप खादर लकड़ी से बिाया जा सकिा है , जो मजबूि होिी
है। यह प्रनििापि इस िथ्य के बावजूद नकया जा रहा है नक नििाथररि लकड़ी खनदर है , लेनकि यह
नििाथरण केवल यज्ञ के प्रदशथि के अिीि है , जो मुख्य उद्दे श्य है। इससलए, यनद यह यज्ञ के प्रदशथि में
बािा बििा है , िो इसे सांशोनिि या प्रनििानपि नकया जा सकिा है ।
35. इस सांबांि में हम लकड़ी की िलवार की मीमाांसा (स्फदी न्याय) का िी उल्लेख कर सकिे हैं , जो
मीमाांसा प्रणाली में एक प्रससद् ससद्ाांि है। यह ससद्ाांि कहिा है नक "नकसी निया के सािि के रूप में
जो नििाथररि नकया गया है , उसे उस निया के प्रदशथि के अिुकूल अर्थ में सलया जािा चानहए" (जैनमिी
3:1:2, के.एल. सरकार की पुस्तक 'मीमाांसा रूल्स ऑफ इां टरनप्रटे शि' में पृष्ठ 185 पर उद्ि
ृ )। सांस्कृि
में ' स्फदी' शि का अर्थ िलवार होिा है , जो सामान्यिः काटिे के सलए एक िािु की वस्तु होिी है।

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हालाांनक, यज्ञ के सांदिथ में ' स्फदी' को लकड़ी की िलवार के रूप में व्याख्यानयि नकया जािा चानहए,
क्योांनक यज्ञ में एक छोटी लकड़ी की िलवार का उपयोग नकया जािा है , सजसे ' स्फदी' कहा जािा है , जो
एक िकेलिे वाला उपकरण होिा है (क्योांनक यज्ञ में काटिे के उपकरण की आवश्यकिा िहीां होिी,
बब्दि केवल िकेलिे वाले उपकरण की आवश्यकिा होिी है)। इस प्रकार, ' स्फदी न्याय' का िात्पयथ है
नक हमें पाठ के उद्दे श्य को समझिे के सलए उसकी सही व्याख्या करिी चानहए।
36. मीमाांसा प्रणाली में, व्याख्या का शाब्दिक नियम श्रुनि (या अनिदा) ससद्ाांि कहलािा है , और
सामान्यिः यही ससद्ाांि लागू होिा है जब नकसी पाठ की व्याख्या की जािी है। हालाांनक, कुछ अपवाद
ब्दिनियााँ ऐसी होिी हैं जब हमें शाब्दिक नियम से हटकर अन्य ससद्ाांिोां का सहारा लेिा पड़िा है , जैसे
नक (1) सलांग (लक्षण) ससद्ाांि, जो शिोां या अनिव्यब्दियोां के सुझावात्मक शब्दि से सांबांनिि है , (2) वाक्य
ससद्ाांि, जो वाक्य रचिा से सांबांनिि है , (3) प्रकरण ससद्ाांि, जो अर्थ को स्पष्ट करिे के सलए अन्य पाठोां
का सांदिथ लेिे की अिुमनि दे िा है , (4) िाि ससद्ाांि, जो एक पाठ का दू सरे पाठ के सापेक्ष ब्दिनि को
दशाथिा है , और (5) समाख्या (िाम) ससद्ाांि, जो सांयुि िाम के व्युत्पन्न शिोां द्वारा नदए गए सांकेि के
माध्यम से नवनिन्न अांशोां के बीच सांबांि िानपि करिा है।
37. विथमाि मामले में हमारा मि है नक सलांग (लक्षण) ससद्ाांि लागू होगा।
38. सलांग का अर्थ वास्तव में सांदिथ को समझकर व्याख्या करिा है , और यह व्याख्या के शाब्दिक नियम
से एक अलगाव है। सलांग ससद्ाांि को इस न्यायालय के उिर प्रदे श िूदाि यज्ञ सनमनि बिाम बृज नकशोर
(एआईआर 1988 एससी 2239) के निणथय से समझाया जा सकिा है , जहााँ 'िूनमहीि व्यब्दि' शिोां का
अर्थ 'िूनमहीि नकसाि' से लगाया गया र्ा, ि नक िूनमहीि व्यापारी से। यहााँ हम दे खिे हैं नक न्यायालय
िे व्याख्या के शाब्दिक नियम से हटकर फैसला नकया है , क्योांनक शाब्दिक नियम के अिुसार एक बहुि
अमीर व्यापारी जो जमीि िहीां रखिा, उसे िी िूनमहीि व्यब्दि मािा जाएगा। चूांनक उिर प्रदे श िूदाि
अनिनियम का उद्दे श्य िूनमहीि नकसािोां को कुछ जमीि दे िा र्ा, इससलए 'िूनमहीि व्यब्दि' शि का
अर्थ केवल 'िूनमहीि नकसाि' से लगाया गया। यह व्याख्या आवश्यक र्ी, अन्यर्ा उिर प्रदे श िूदाि
अनिनियम का पूरा उद्दे श्य नवफल हो जािा और िूनमहीि नकसािोां को नविररि करिे के सलए दाि की
गई जमीि अमीर व्यापाररयोां द्वारा हनर्या ली जािी, हालाांनक उिके पास अपिी कांपनियोां में शेयर,
प्रनििूनियााँ , बैंकोां में करोड़ोां रुपये आनद के रूप में बहुि अनिक िि हो सकिा है।
39. हम यह िी बिािा चाहेंगे नक सलांग (लक्षण) ससद्ाांि और वाक्य ससद्ाांि में अांिर है। पूवथ में पाठ के
शिोां के सार् कोई नहांसा िहीां की जािी, लेनकि शिोां या अनिव्यब्दियोां को शाब्दिक अर्थ से अलग
िरीके से समझा जािा है , और इससलए सलांग वास्तव में सांदिथ के आिार पर व्याख्या है। वाक्य में , हालाांनक,
पाठ के सार् कुछ नहांसा की जािी है , जैसे नक दो अलग वाक्योां को जोड़कर, या शिोां या अनिव्यब्दियोां
को जोड़कर, या शिोां या अनिव्यब्दियोां को वाक्य में ऊपर या िीचे िािाांिररि करके। यह नहांसा किी-
किी पाठ को निरर्थक या बेिुका होिे से बचािे के सलए आवश्यक हो जािी है , जैसे नक एक सजथि को

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रोगी की जाि बचािे के सलए शरीर के सार् नहांसा (ऑपरे शि) करिी पड़िी है। इस उद्दे श्य के सलए उहा
ससद्ाांि का उपयोग नकया जािा है (उहा ससद्ाांि या िकथ का उपयोग, आमिौर पर पाठोां की व्याख्या के
सलए लागू नकया जािा है)।
40. इस सांबांि में यह उल्लेख नकया जा सकिा है नक मैक्सवेल िी असािारण ब्दिनियोां में कािूि के सार्
नहांसा करिे की अिुमनि दे िा है। वह कहिा है , "जहाां नकसी कािूि की िाषा, उसके सामान्य अर्थ और
व्याकरसणक सांरचिा के कारण, अनिनियम के स्पष्ट उद्दे श्य के सार् एक स्पष्ट नवरोिािास, या कुछ
असुनविा या बेिुकापि, कनठिाई या अन्याय, जो सांिविः इरादिि िहीां है , उत्पन्न होिा है , वहाां उस पर
एक ऐसी व्याख्या लागू की जा सकिी है जो शिोां के अर्थ को सांशोनिि करिी है , और यहाां िक नक
वाक्य की सांरचिा को िी। यह व्याकरण के नियमोां से हटकर, नवशेष शिोां को असामान्य अर्थ दे कर,
उिके िम को बदलकर, उन्हें पूरी िरह से अस्वीकार करके, या अन्य शिोां को जोड़कर नकया जा
सकिा है , निस्सांदेह इस नवश्वास के प्रिाव में नक नविानयका का इरादा सांिविः वह िहीां हो सकिा जो
शि दशाथिे हैं , और इस प्रकार नकए गए सांशोिि वास्तव में लापरवाह िाषा के सुिार हैं और सही इरादे
को दशाथिे हैं।" इस प्रकार, एस.एस. कालरा बिाम िारि सांघ 1991(2) एससीसी 87 में इस न्यायालय िे
कहा नक किी-किी न्यायालय उि शिोां को जोड़ सकिे हैं जो गलिी से छूट गए होां। (जी.पी. ससांह की
पुस्तक "नप्रांससपल्स ऑफ स्टै ट्यूटरी इां टरनप्रटे शि" 9वाां सांस्करण, 2004, पृष्ठ 70 से 77 में उब्दल्लब्दखि
निणथय िी दे खें)।
41. सलांग ससद्ाांि को जैनमिी िे कई सूत्रोां और अनिकरणोां में दशाथ या है। इस प्रकार, प्राणिृि अनिकरण,
जो जैनमिी के सूत्र 28, अध्याय IV, पुस्तक 1 पर आिाररि है , यह दशाथिा है नक कैसे शिोां िे सलांग या
लक्षण प्रनिया के माध्यम से एक व्यापक अर्थ प्राप्त नकया।
42. िैनिरीय सांनहिा (5.3.1.2) में एक अांश है:
"वह प्राणिृि का निपटाि करिा है - प्राणिृि उपदद्यानि "
नफर से उसी सांनहिा (5.7.2.5) में एक समाि अांश है:
"वह अज्यािी का निपटाि करिा है - आज्यािोरे िा उपदद्यानि "
43. अब एक मामले में प्राणिृि और दू सरे में अज्यािी का क्या अर्थ है ? प्राणिृि और अज्यािी शि
िमशः दो मांत्रोां या छां दोां के िाम हैं जो उि शिोां से शुरू होिे हैं। ये छां द यज्ञ में एक निनिि उद्दे श्य के
सलए आवश्यक ईांटोां को समनपथि करिे में उपयोग नकए जािे हैं । इस िथ्य से, प्राणिृि मांत्र द्वारा समनपथि
ईांटोां को प्राणिृि का िाम नमल गया। इसी िरह, अज्यािी मांत्र द्वारा समनपथि ईांटोां को अज्यािी का िाम
नमल गया। लेनकि समय के सार्, एक नवशेष प्रकार की ईांटोां के पूरे ढे र को प्राणिृि कहा जािे लगा,
क्योांनक उस ढे र की एक या दो ईांटोां को प्राणिृि ईांटोां के रूप में समनपथि नकया गया र्ा। इस प्रकार,
प्राणिृि का उदाहरण उपरोि िरीके से एक िाम के दायरे को बढािे के सलए एक मुहावरा बि गया।
वास्तव में, इि मामलोां में प्राणिृि और अज्यािी शिोां का अर्थ शिोां की नवशेष सांगनि और उि अांशोां

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के सांदिथ से नििाथररि होिा है सजिमें वे उपयोग नकए जािे हैं। ऐसे उपयोग को सलांगसमबाय (सलांग का
अविार) कहा जािा है।
44. िांद पांनिि िे अपिे ग्रांर् 'दिक मीमाांसा' में प्राणिृि ससद्ाांि का उल्लेख करिे हुए यह नदखाया है
नक यद्यनप 'प्रनिनिनि' शि का प्रयोग प्रारां ि में केवल छह प्रकार के पुत्रोां के सलए नकया गया र्ा, बाद में
सामान्य प्रयोग के कारण यह शि सिी बारह प्रकार के पुत्रोां पर लागू हो गया। प्राणिृि ससद्ाांि कहिा
है:
"नकसी वगथ के एक प्रमुख वस्तु की नवशेषिा पूरे वगथ को िाम दे सकिी है।"
45. प्राणिृि का शाब्दिक अर्थ है जीवि से िरिा या जीवि प्रदाि करिा; लेनकि यह अनिव्यब्दि एक
मांत्र की शुरुआि है सजसका उपयोग कुछ ईांटोां को समनपथि करिे में नकया जािा है। इससलए यह शि
एक प्रकार की ईांटोां के सलए प्रयोग होिे लगा (प्राणिृि उपदद्यानि)। इसी प्रकार, अज्यािी शि िी एक
अन्य प्रकार की ईांटोां के सलए प्रयोग होिे लगा।
46. प्राणिृि ससद्ाांि इस मामले में िी लागू होिा है क्योांनक हमें िारिीय टे लीग्राफ नियमोां के नियम 443
में 'ग्राहक' शि को जीवांि अर्थ (यािी उनचि व्याख्या) दे िा है।
47. प्राणिृि ससद्ाांि का उपयोग अक्सर नकसी पाठ की व्याख्या करिे समय इसे उदाहरणात्मक मािकर
नकया जािा है , ि नक सांपूणथ। व्याख्या का उदाहरणात्मक नियम शाब्दिक नियम से एक अलगाव है , सजसे
सामान्यिः नकसी पाठ की व्याख्या करिे समय अपिाया जािा है। हालाांनक, किी-किी शाब्दिक नियम
से अलग होिा अिुमेय होिा है , और ऐसा ही एक अलगाव उदाहरणात्मक नियम है । उदाहरण के सलए,
सांस्कृि में एक प्रससद् कर्ि है "काकेभ्यो दनि रनक्षिम" सजसका अर्थ है "दही को कौवोां से बचाओ"।
इस वाक्य में 'कौवा' शि केवल उदाहरणात्मक है , ि नक सांपूणथ। इसका यह अर्थ िहीां है नक दही को
केवल कौवोां से बचािा चानहए, लेनकि नबब्दल्लयोां, कुिोां या गांदगी आनद से खराब होिे दे िा चानहए। इसका
वास्तनवक अर्थ यह है नक दही को सिी खिरोां से बचािा चानहए। इससलए, उपरोि कर्ि में 'कौवा'
शि केवल उदाहरणात्मक है , ि नक सांपूणथ।
48. हम एक और उदाहरण ले सकिे हैं। अमेररकी सांनविाि के अिुिेद 1 िारा 8 में कहा गया है नक
काांग्रेस (अमेररकी सांसद) सेिा और िौसेिा का गठि कर सकिी है। इसमें वायु सेिा का कोई उल्लेख
िहीां है , क्योांनक 1791 में जब अमेररकी सांनविाि लागू हुआ र्ा, िब नवमाि िहीां र्े। पहला नवमाि राइट
बांिुओां िे 1903 में बिाया र्ा। हालाांनक, आज की वास्तनवकिा यह है नक एक आिुनिक सेिा वायु सहयोग
के नबिा िहीां लड़ सकिी। अमेररकी सांनविाि में सांशोिि करिा एक बहुि ही कनठि और लांबी प्रनिया
है क्योांनक इसमें काां ग्रेस के दोिोां सदिोां के दो-निहाई बहुमि और राज्योां के िीि-चौर्ाई की अिुमनि की
आवश्यकिा होिी है। जब िक यह होिा है , दु श्मि दे श पर आिमण करके उसे कब्जा कर सकिा है ।
इससलए, 'सेिा और िौसेिा' शिोां को उदाहरणात्मक मािा जािा चानहए, ि नक सांपूणथ, और इिका
वास्तनवक अर्थ दे श की सुरक्षा के सलए आवश्यक सिी सशस्त्र बल हैं (सजसमें वायु सेिा िी शानमल है )।

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इस प्रकार, अमेररकी सांनविाि के अिुिेद 1 िारा 8 की व्याख्या श्रुनि नियम (शाब्दिक नियम) के बजाय
सलांग नियम के आिार पर की जािी चानहए। अिुिेद 1 िारा 8 में 'सेिा और िौसेिा' शिोां को शाब्दिक
रूप से िहीां, बब्दि सुझावात्मक रूप में समझा जािा चानहए। दू सरे शिोां में , ये केवल उदाहरणात्मक
हैं, और इिका वास्तनवक अर्थ दे श की सुरक्षा के सलए आवश्यक सिी सशस्त्र बल हैं।
49. हम मैक्सवेल के 'कािूिोां की व्याख्या' का िी उल्लेख कर सकिे हैं , सजसमें कहा गया है:
"लेनकि यह एक और मूलिूि नियम है नक कोई चीज जो कािूि के शिोां के िीिर है , वह कािूि के
िीिर िहीां मािी जाएगी जब िक नक वह नविानयका के वास्तनवक इरादे के िीिर ि हो, और शिोां को,
यनद पयाथ प्त लचीला हो, उस अर्थ में समझा जािा चानहए जो व्याकरसणक रूप से कम सही हो सकिा है ,
लेनकि उस इरादे के सार् अनिक सामांजस् रखिा हो। िाषा शायद ही किी इििी स्पष्ट होिी है नक उसे
एक से अनिक अर्थ में प्रयोग ि नकया जा सके; और सिी मामलोां में इसके शाब्दिक और प्रार्नमक अर्थ
पर कठोरिा से बिे रहिा इसके वास्तनवक अर्थ को कई बार खो दे गा। यनद उि कािू िोां को शाब्दिक
अर्थ नदया गया होिा जो एक सािारण व्यब्दि को पुजारी पर 'हार् रखिे' से मिा करिे र्े और सड़क पर
खूि बहािे वाले सिी को दां निि करिे र्े , िो एक सािारण व्यब्दि जो हनर्यार से पुजारी को घायल करिा,
वह प्रनिबांि के अांिगथि िहीां आिा, और एक सजथि जो नकसी की जाि बचािे के सलए खूि निकालिा, वह
दां ि के योग्य होिा। शाब्दिक व्याख्या के अिुसार, मोहम्मद II द्वारा वेनिस के गविथर के शरीर को आिा
काटिा उसके वादे का उल्लांघि िहीां र्ा क्योांनक उसिे ससर बचािे का वादा नकया र्ा; ि ही िैमूर द्वारा
एक गैरीसि को सजांदा दफिािा उसके खूि ि बहािे के वादे का उल्लांघि र्ा।"
मैक्सवेल यह िी कहिे हैं:
"नकसी कािूि के शिोां को उस अर्थ में समझा जािा चानहए जो उस अनिनियम के नवषय और नविानयका
के उद्दे श्य के सार् सबसे अनिक सामांजस् रखिा हो। उिका अर्थ केवल व्याकरसणक या शि-सािि
की दृनष्ट से िहीां, बब्दि उस नवषय या अवसर के सांदिथ में और प्राप्त नकए जािे वाले उद्दे श्य के अिुसार
समझा जािा चानहए।" (जोर नदया गया)
50. इस प्रकार, दोिोां व्याख्या प्रणासलयोां में, मीमाांसा प्रणाली और मैक्सवेल की प्रणाली, यह बल नदया गया
है नक नकसी कािूि के इरादे को अक्सर समझिा आवश्यक होिा है िानक उसकी सही व्याख्या की जा
सके, और यह िहीां नक न्यायालय किी िी शाब्दिक व्याख्या नियम से अलग िहीां हो सकिा। यह सब
सांदिथ, नवषय-वस्तु, और उस प्राविाि के उद्दे श्य पर नििथर करिा है।
51. जैसा नक पहले कहा गया है , नियम 443 की व्याख्या करिे समय हमें एक ऐसी व्याख्या दे िी होगी
जो इस नियम के इरादे को पूरा करे , जो यह है नक टे लीफोि नबलोां का िुरांि िुगिाि नकया जािा चानहए,
अन्यर्ा नविाग के पास टे लीफोि सेवाओां को नविपोनषि करिे के सलए आवश्यक िि की कमी होगी जो
उपिोिाओां को प्रदाि की जािी हैं। आब्दखरकार, टे लीफोि नविाग के कमथचाररयोां का वेिि दे िा होिा
है, टे लीफोि उपकरणोां को बिाए रखिा, मरम्मि करिा और आिुनिक बिाए रखिा होिा है। किी-

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किी िई िकिीक को शुरू करिा पड़िा है। नवनिन्न अन्य आवश्यकिाएां हो सकिी हैं सजिके सलए िि
की आवश्यकिा होिी है , और यह सब केवल ििी सांिव है जब टे लीफोि नबलोां का समय पर िुगिाि
नकया जाए। इससलए, हमारे नवचार में, नियम 2(pp) में 'ग्राहक' शि को एक व्यापक अर्थ नदया जािा
चानहए, जैसा नक पहले कहा गया है।
52. उपरोि के आिार पर, हमें इस अपील में कोई िाकि िहीां नदखिी है , और इसे खाररज नकया जािा
है। कोई लागि का आदे श िहीां होगा।

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