,~,t. ,..

-yRND/RNP/HSE 830/2009-2011

Focus• By interim order final relief

should not be granted. 572

* Plea of adverse possessionis not a pure question of lawbut a blended one of fact andlaw. 661

* When a custom has beenrepeatedly recognized byCourts, it is blended into thelaw of land and proof ofthe same would becomeunnecessary under See. 57 ofEvidence Act, 1872. 599

MODE OF CITATION

2010 (8) SCJ16th Dec., 2010

PART -50

CONTENTS

INDEX .""""""."""".49 TO 64JOURNAL ."""".""".17 TO 32REPORTS ".:~"""" 513 TO 672

i -\

RNI - 1083/67

Weekly Law Journal

Judgments ofSupreme Court & Articles

Chief AdvisorsSRI JUSTICE M. JAGANNADHA RAO

(Former Judge, Supreme Court of India)(Former Chairman, Law Commision of India)

Honorary Editors'SRI JUSTICE S. RAJENDRA BABU

(Formei' Chief Justice of India)

SRI JUSTICE K.T.THOMAS(Former Judge, Supreme Court of India)

DR. JUSTICE AR LAKSHMANANIChairman,'L3w Commision of India)

Editor· in • ChargeVEPA P.SARATHI

(Senior Advocate, Supreme Court)

Eiiitorial BoardSri Justice S. Saghir Ahmed

(Former Judge. Supreme Court of India)

Sri Justice U.C. Banerjee(Former Judge, Supreme Court of India)Editors

K.V.G.Krishna MurthyG. Krishna Moorthy

Manohar Gogia

Published & Edited by

L.D. Gogia, Neeraj ~ogia.

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,

I

II

III

8]

CONCEPT OF DHARMA, JUSTICEAND LAW: A STUDY

ByDr. Mukund Sarda"

1. Any Government will have a strongbasis for its survival, "if it is founded onliberty and justice."l Justice under lawwithout social justice', no longer has anymeaning or significance. .

2. It is no doubt that people since timesimmemorial hoped for justice and itssurvival at all times" and 'justice' has beenthe watchword of all major social andpolitical reform movements. Endless andceaseless efforts were made to abolishinjustice, tyranny and exploitation. In thecommon parlance justice is equated witheverything that is good, mercy, charity andtruth and other equivalent expressions.However, in the words of a Greek thinker .Thrasymachu, it cannot be defined as theinterest of the stronger'. Justice is not anirrational idea" and the search for it is aneternal quest",

3. Wha tever is considered as 'just',.according to a reasonable man isconsidered as 'justice." Gandhijiemphasized the need for establishing a'just society' which he considered; as a

• Principal & Dean, Faculty of Law, BhartiyaVidya Peet New Law College, Pune.

r Renganath Mira CJ in All India Judges-Association v. Union of India, AIR 1992 SCP. 165 at P. iil: .

2. Telram Conference on Human Rights, 1966;quoted by Pratap Subhas "internationaliWorkshop on Human Rights", 1992 AIRAugust Journal P. 113 at 114.

3. See for detailsvVU John c.ft 'cases aridmaterials on jurisprudence, West PublishingCo: 1958. .-

4. Quoted by Cohen and Cohen. 'A reading inJurisprudence and legal philosophy', LittleBrown & Co., Boston, 1951 at p. 62l.

5. Bodenheimar, E 'Jurisprudence', 1951 P. 1786. Hans Kohen, Bishin and CD Stone. "Law

Language and ethics, New York, 1952 P. 39.7. Lord Wright, 'Future of Cornman Law" P.114.

JOURNAL 29

necessary ideal for India's survival as anindependent and vibrant nation's in hisconcept of Ram Rajya and Swarajya whichhe elucidated as follows:-

(1) Poorest shall have an effective voicein the making of the Country;

(2) No distinction/existence of rich andthe poor;

(3) All communities shall live in peace;

(4) No curse of untouchability or curseof intoxicating drugs or drinks; and

(5) Women shall enjoy the same rightsas men. Nehru highlighted the needfor 'social justice', and "onlythrough social justice, chronicpoverty in India .will be solved ...ending of poverty, ignorance, diseaseand inequality of opportunity towipe every tear from every eyel/9.

4. In ancient Indian Society, Law andDharma were not distinct concepts. InDharma Sastras, Smrities arid

. Arthasastra, the concept of Justice, lawand religion were not distinguished andinvariably justice was equated to Dharmaand Vide-versa" and the Mosaic Law ofIsrael considered 'Law' and justice' asinextricably inter-woven" and "justice' isconsidered as a distinct segment ofmorality to which law must conform"

5. Starnrnler" classified the principlesof justice in two categories:-

8. Deshpande., M'S. "Light of India - Message.of Mahatma' Wilco Publishing House, 1956P.l72.

9. Quoted by VR. Krishna Iyer "Human Rightsand the law" Vedpal Law House, 1994.

10. Sen Gupta NC "Evolution of Ancient IndianLaw" Calcutta, 1954 P. 336.

11. Quoted by Julius Stone, "Human Law andHuman Justice" P.22.

12. Hart HLA 'The concept of law! 1972p. 152-153.

13. Quoted by WU John CH, Cases and Materialson Jurisprudence, West Publishing Co., 1958P. 499-500.

31

30 SUPREME COURT JOURNAL [2010

(l) FIJj-m:.;),~- 0= ect; and

(- p-

Respect -of partici a -0

one shall be _another anarbitrarilv e C u ded from the legalcommunitj _ Johgeneral conce 0 tiee in these terms:"All social primary zoods - liberty andopportuni _~inca e an vealth, and thebasis of self-respect-are to be distributedequally, unless an unequal distribution ofany or all of these zoods is to the advantageof the least favoured". To establish justice.in the' orld is to destroy the bad and theevil, to stop the stron exploiting the weak,to develop kno 'ledge and welfare of thepeople .15 Veril . that which is justice istruth" and the law is a means to an endand justice is that end."

articipation

6. A Knowledge-based society is basisto social justice' and to serve mankind isservice to God and thus concept of servicebecomes a national ideal'". It is therefore,necessar.y that eyery rule must promotewhich is good to people. In the happinessof the subject lies the King's happiness, intheir welfare his welfare. What pleaseshimself, the king shall not consider goodbut whatever pleases his subjects the kingshall consider goodw. This is conveyed inunequivocal terms by Bentham thus: "The

14. Qusted from tiller David "Social Justice",1976-P-40.See also Rawls John 'A theory ofJustice' Oxford 1972 P.l03.

15. The great King of Babylong (2124-2083BC)Humnurali proclaimed.

16. The Upanishad 1-4-14.17. Krishna Iyer, J ill All India Judge Association

v. Union of India J\IR 1992se P.J76.18. Mohini Jain v. State of Kamataka (1992) 3

see P.666. See also Unikrishnan v. State ofA. 1'. (1993) 1 see P.645.

19. KL. Sarkar, Tagore law Lectures, 1905FA37-438.

20. Kautilya 'Artha sastra' P.39

public good ought to be the object of thelegislator, General utility ought to be thefoundation of his reasonings. To know thetrue good of the community is whatConstitutes the science of legislation, theart consists in finding the means to realizethat good'?' Dharma is a special attributeof man. Bereft of Dharma, man is equal toanimal". The Vedas are considered as the'first source of Dh arrn a'T'. Dharmaconstitutes the foundations of all affairs inthe World. Everything in this World isfounded on Dharma and it is therefore,considered 'supreme?". Commandants ofDharma like Nature's laws, admit of nomeddling".

7. It has been emphasized that thosewho exercise political power must wearthe hand glove of Dharma and 'principlesof DharI11 a governs .every sphere ofactiv i ty inclu ding governance of theCountry". The duty of the king was clearlyd efin e d in Dharma Sastras and forviolation, the king becomes unfit to rule"and Dharma Rajya means 'rule of law'.King respected by the people only if heacted according to law (Dharma). Rules ofDharma not alterable according to whimand fancy of the king and it was essentialthat the exercise of political power must.·be in conformity with Dharma - anessential aspect of governance ..This iswhat is meant by 'Rule of Jaw' in thepresent day .fontext. According toDr. S. Radhakr ishnan, "Dharmarighteousness is the king of kings. It is theruler of both the peop e and the ruler

21. Bentham's theory of legis,a ion by Upen.traBaxi Chapter I Page (1)Hitopadesha Prastax a - -.M. Roma [ois, 'Legal and ConstitutionalHistory'VoL I P.H..Mahanarayanopanisha See 79-7.Dr. KR Srinivasa Iyengar 'Sitayana' P.166-167.Fredic Max. uller, india-what can it teachus' P.6.R.C Majumdar "Ancient In ia", P.l54-155

22.23.

24.25.

26.

27.

32

"I)

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lh

d

I'k

8]

themselves. It is the sovereignty of thelaw" .28 Dharma in Indian tradition alsostands for law and morality and no Statecan be devoid of law and moral ity.""Dharma is right action Dharma orvirtue-is conformity with the truth ofthings" .30 Dharma protects those whoprotect it and those who destroy it getdestroyed" and the entire concept of ruleof law is incorporated in Dharma."According to K.M. Panikkar, the King'scoronation ceremony is a Diksha -devoting his life to the cause (service of thepeople)." Support to the king depended onking conforming to Dharma or justice."

8. the first legal code of Hindusenshrines both philosophy of life and oflaw with special stress on morality,Danda (punishment) and justice". Justiceis a moral State." Candhiji observed: "Mysoul refuses to be satisfied so long as it is ahelpless witness ~f a single wrong.?"

9. As Friedmann observed: "The tale ofnatural law is the search of mankind for.ibsolute justice and of its failure", Legaljustice i.e., according to law hasseveraliiiadequaciesaridfilllstonleet, what~;;)Imond described it as 'justice in indeed

2:-:. Quoted in 'the framing of India's Constitution'by Shiv Rao Vol II P.11-18.

i'l. Dr. L.M. Singhvi, "Freedom on trial' P.88.su. S,Radhakrishnan, 'Hindu view oflife' Chapter- IV r.66. See also AIR 1996 SC r.l765 Para

62 to 82.3 L Manu VIII-IS.:;2. Dr. Shankar Daval Sharma, in his convocation

address at National Law SchoolBangalore,1~93.

J3. K.M. Panikkar, "Ideas of Sovereignty andState in Indian Political thought", P-35-36.

:;.1. Manu's, "Manusmirithi Chapter VII-19.Manusmrithi consists of 2694 verses in 12chapters.

~;i,Code of Manu constructed between 200 BC.1l1c1 An 200

,r,. In the words of Aristotle, W.o. Ross (1954)VoL DC r. 1134.

:;7. Candhiji quoted by deshpande M.S., 'Lightof India - Message "r Mahatma, P-'34 (1950).

JOURNAL 31

and justice in truth'. The efforts arerequired to be made to induct more andmore moral content in the law and raisethe level of legal justice to absolute justicestandards.

10. In conclusion, it may be stated thatrule of law rests on the strong foundationof effective enforcement of laws. If the Jawsare not effectively enforced, the rule of lawbreaks down. When rule of law breaksdown, democracy collapses and when ithappens the essence of 'free Governmentdisappears and the Government ceases tobe a Government of Jaws but getsconverted into 'rule of men'. That wouldbe the end of democracy, liberty andfreedom and the system of Governmentbecomes dictatorship and becomes anengine of oppression.

EXECUTION OF DECREE FORMAINTENANCE AGAINST

RESPONDENT UNDER ORDER 21RULE 37 OF c.P.C

By*Golagana Surya Rao, BSc., B.A., M.A.,

MA, B.L

Order 21 Rule 37 to 40 of CP.C, dealwith arrest ad detention in the civil prisonof JDR aJter due-enquiry. Order 21 Rule 37

'deals with show cause notice tobe.issuedto the JDR when EP is filed for arrest of JDRand detention in civil prison for violationof money decree. Under Order 21 Rule 38CP.C, if the JDR does not respond tosummons issued to him then arrestwarrant under Order 21 Rule 38 CP.C,would be issued to procure the presenceof JDR and after his appearance in theconcerned court due enquiry would beconducted with regard to means of JDR topay decretal amount. After due enquiry, it

• Advocate, Secretary, All India LawyersUnion, Visakhapatnam District.

33