Author : Akhil Bharat Kukreja, Student at Amity Law School, Delhi (GGSIPU)
‘RAJ DHARMA’ IN CONFERRING RIGHT TO HEALTH AS A FUNDAMENTAL RIGHT
This article revolves around the ancient concepts of Vyavhara Dharma and Raj Dharma and its relation with the fundamental rights and duties mentioned in the Indian Constitution, 1950. The article shall also involve various shlokas contained in Kautilya’s (also known as Chanakya) Arthashastra, Manusmriti, Vedas, Bhagwad Gita and will link it with how Dharma has provided a base to our Constitution and how fundamental rights are shaped by these ancient concepts of governance. This article shall also trace the relation between the concepts of Dharma and its subsequent connects with the laws that govern us. Portion of this article will also determine how Raj Dharma has played a significant role in conferring Right to Health as a Fundamental Right in the Indian Constitution.
Dharma, Indian Constitution 1950, Manusmriti, Dharmashastras and Dharmasutras
“Hindu system of law is the most ancient pedigree of the known systems of Law.”
The advancement of jurisprudence and the legal hypothesis owes much to the traditional and ancient Hindu legal thinkers and legal philosophers. The Indian Law remarks its lineage from 6000 years ago and during that span, it has passed through various phases. Dharma is the most important word that is discussed in Indian scriptures. The leader also known as a dharmic raja or rajarishi was Chanakya’s highest vision. In his ‘Arthashastra’, the word ‘dharma’ appears 150 times. Dharma insinuates various concepts and ideas – it is morality, ethics, spirituality, duty and responsibility, among others. Chanakya speaks at length on Raja Dharma, the duties and responsibilities of a king.
The concept of Law or the idea of Dharma in ancient India was inspired by the Vedas that contained rules of conduct, customs and rites compiled in Dharmasutras and Dharmashastras, which were practised in a number of branches of Vedic schools.
“Dharma is an important term in Indian religions. In Hinduism it means ‘duty’, ‘virtue’, ‘morality’, even ‘religion’ and it refers to the power and facility which upholds the universe and society. Hindus generally believe that dharma was revealed in the Vedas although a more common word there for ‘universal law’ or ‘righteousness’ is rita. Dharma is the power that maintains society; it makes the grass grow, the sun shine, and makes us moral people or rather gives humans the opportunity to act virtuously. But acting virtuously does not mean precisely the same for everyone; different people have different obligations and duties according to their age, gender, and social position. Dharma is universal but it is also particular and operates within concrete circumstances. Each person therefore has their own dharma known as sva-dharma. What is correct for a woman might not be for a man or what is correct for an adult might not be for a child.”
The principles or standards of Dharma are deeply rooted in the Indian Constitution specifically in Part III and IVA that contains Fundamental Rights and Duties. Dharma was, as we all know, a duty based legal system. However, the current Indian legal framework became a right based one. Of course, all rights are not absolute and that they too have certain restrictions. Right to equality, right to life are some of the fundamental rights provided. But, there are plentiful evidences from the history of the world as well from ours to point out the abuse of power whether it had been the Hitler’s Nazi or the Infamous Emergency imposed by Indira Gandhi and what followed is sufficient to scrutinise the very spirit on which our constitution was founded.
The judiciary however passed a judgment in Habeas Corpus case on a day which is truly referred to as ‘the black day of Indian legal history”, which further deterred the belief or conviction of people in Indian Judiciary. In the decision of the above case, the private or personal liberties and fundamental rights were abridged arbitrarily and thus the Honourable Supreme Court in not so Honourable decision justified it for personal gains, but soon after this, mistakes were started to be corrected. After this, the fundamental rights were made absolute in the famous Golaknath case. Later, the doctrine of basic structure was propounded by the Honourable Supreme Court in the Keshvananda Bharti case. The idea or concept of dharma has been utilized by various courts across India in helping them to arrive at decisions even by the Honourable Supreme Court in many cases.
RAJ DHARMA- THE PARAMOUNT DHARMA:
Dharma is considered as the topmost ideal of human life. It deals with the virtuous and noble conduct of man, his duties and his relationship with religion. It is the closest what India has to natural or ancient law and ethics, and discovers its ultimate aim in the welfare of society. It incorporates anything that is right, just and moral. It is a time immemorial concept which originated from the Vedas, Arthashastras and Manusmriti. Chanakya says the first three principles have to be balanced in our lives, that is, dharma, artha and kama.
India is the most antiquated country, which has evolved and developed to be the oldest legal, judicial and constitutional system in the world to incorporate principles like Vyavahara Dharma and Raja Dharma. Fundamental duties of the State (Rajya) headed by a King, Raja Dharma is fused in the Indian Constitution.
According to a Shloka in Manusmriti: “I will now declare Raja dharma, the law to be observed by kings, how kingship was created, how a king should conduct himself and how he can obtain the highest success.”
With the coming of existence of a Rajya, the foundation of kingship and its founders felt the necessity to define its structure, the powers and obligations of the king and its subjects in order to maintain peace, safety, harmony and order in the society. The necessity was met by making provisions and arrangements for regulating the constitution and organization of the state, specifying the power and duties of the king and all other officers of the State and adding incidental provisions and treating these provisions as part of Dharma under the title “Raja Dharma” (law governing kings).
The propounders of Dharmasastra declared that the power of the king (State) was absolutely necessary to keep up the society in a state of Dharma which was essential for the fulfilment of Artha and Kama. Raja Dharma laid down that the Dharma of the king was paramount.
According to Mahabharata Shanti Parva : “All Dharmas are merged in Rajadharma, and it is therefore the supreme Dharma”.
The above declaration indicates that Raj Dharma is equal to the present day Indian Constitution and the supremacy of the Constitution.
RAJ DHARMA AND RIGHT TO HEALTH:
Dharma is sanatana, i.e. which has eternal values. Dharma is neither time-bound nor space bound. The idea of Dharma is with us from time out of mind. Dharma is different from religion, however they are commonly misjudged to mean the same and hence are used interchangeably.
- The existing law today i.e. the Constitution and other legislations including judicial pronouncements have been inspired by Dharma. As stated above, Raj Dharma is equal to present day Indian Constitution and supremacy of the Constitution.
- However, a unique method evolved and developed by the great thinkers who moulded the civilization and culture of this land was to protect the rights of every individual by creating a corresponding duty on other individuals. This is known as Duty Based Society – Guarantee for Human Rights.
Now, conjoining both the points that the Indian Constitution is the Raj Dharma and Dharma is unique method which secures rights to every individual by imposing duties on other individuals.
The Indian Constitution is drafted in such a manner where in Part III, it contains fundamental rights of the people, Part IV contains Directive Principles of State Policy and Part IV-A imposes Fundamental Duties on the subjects of the state. In other words, Constitution being the supreme or ultimate law of the land ensures the Rights of individual subjects of the state by imposing Duties on both State and persons (subjects).
Right to Health is not an explicit fundamental right within the Indian Constitution. However, most provisions related to health are mentioned in Part-IV (Directive Principles of State Policy).
- Article 38 provides that the state shall secure a social order for the promotion of welfare of the people. Providing affordable healthcare is one among the ways to promote welfare.
- Article 39(e) provides that the state has to make sure that health and strength of workers, men and women, and the tender age of children are not impaired or abused.
- Article 41 imposes obligation on the state to provide public assistance in cases of unemployment, old age, sickness and disablement etc.
- Article 42 imposes obligation on the state to protect the life and health of infant and mother through maternity benefit.
- Article 47 imposes obligation on the state to improve public health, securing of justice, humane condition of works, extension of sickness, old age, disablement and maternity benefits and etc. Further, State’s duty includes prohibition of consumption of intoxicating drinks and drugs that are injurious to health.
- Article 48A provides that the State shall strive to protect and impose the pollution free environment for good health.
However, as we know Fundamental Rights contained in Part III and Directive Principles of State Policy (DPSP) contained in Part IV of the Constitution are interdependent on each other. In addition to the aforementioned duties and obligations that are imposed on the state via DPSP, the Constitution includes provisions guaranteeing everybody’s entitlement to the very best attainable standard of physical and psychological health.
Article 21 of the Indian Constitution guarantees every citizen of India the protection of life and personal liberty. In support of this, number of decisions have been held by the Indian Courts to incorporate Right to Health within the ambit of Article 21. Some of the cases are as follows:
- The Supreme Court in its landmark judgment of Bandhua Mukti Morcha v. Union of India held that the right to live with human dignity enshrined in Article 21 derives from the directive principles of state policy and therefore includes health protection.
- State of Punjab v. Mohinder Singh Chawla Further, it has also been held that “the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities”.
- In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, it was held that failure to provide a patient with timely medical attention by a government hospital results in breach of the patient’s right to life.
- In State of Punjab v. Ram Lubhaya Bagga, the court upheld the state’s obligation to maintain health services and provide healthcare.
- In Vincent Parikurlangara v. Union of India, the Supreme Court held that the right to maintenance and improvement of public health is part of the right to live with human dignity enshrined in Article 21.
- In Consumer Education and Research Centre v. Union of India, under Article 21 of the Constitution, the Supreme Court ruled that the right to health and medical care is a fundamental right
The above mentioned cases and pronouncements finally conclude that Right to Health is well within the purview of Article 21 of the Indian Constitution.
“Prithivim Dharmana Dhritam” which implies that dharma upholds the universe. Dharma is the prime holder of equilibrium in terms of which artha and kama should be dealt with, weighed, practised and acquired. Dharma and law may sometimes be in contrast but their roots continue to remain the same. The existing law today i.e. the Constitution and other legislations including judicial pronouncements have been inspired from Dharma. Therefore it can be said that Dharma and law are closely interrelated. Broadly speaking, law is a part of Dharma without disharmony and comprises a single integrated whole. Dharma has driven our actions, morality and laws in various degrees and still does. On the face of it, one may not find any relation between the two but on a deep analysis both are interrelated, integrated whole. ‘Dharma’ is one of the main origins of modern law.
Article 21 of the Indian constitution is ever growing and evolving. Just as Dharma includes every element and facet of human life whether internal or external and provides a law to regulate and safeguard it, so does Article 21 with the aid of the other Fundamental Rights. In general, Article 21 is used to prohibit violation of personal liberty and deprivation of life except in accordance with the procedure laid down by law. This is where ‘Raj Dharma’ (The Indian Constitution) helps under the purview of Article 21 to confer Right to Health as a Fundamental Right.
 Akhil Bharat Kukreja, Amity Law School, Delhi (Affiliated to GGSIPU)
 J.D.Mayne- Treatise of Hindu law and usage 1878
 BBC © 2014
 A.D.M. Jabalpur v. Shiv Kant Shukla AIR 1976 SC 1207
 Golak Nath v. State of Punjab AIR 1967 S.C. 1643.
 Keshvananda Bharti v. State of Kerala AIR 1973 SC 1462-63.
 Manusmriti, VII – 1
 Mahabharata Shanti Parva 63, 24-25
 The Indian Constitution, 1950
 Part IV of the Indian Constitution
 Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
 State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83
 Paschim Banga Khet Mazdoor Samity v. State of West Bengal AIR 1996 SC 2426 (at 2429 para 9)
 State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117
 Vincent Parikurlangara v. Union of India (1987) 2SCC 165
 Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42