This verse from the portion of Manusmriti dealing with judicial procedures and the administration of justice connotes not Dharma as religion. It contains within its ambit the trinity of legal principles deduced centuries later by the West, namely justice, equity and good conscience. This is the soul of the law. This is what law is made for, stripped of legal intricacies and jargon.

All the pleas, petitions and procedures which have become incomprehensible in our times were made for one purpose, namely the preservation of justice, the Dharma. But sometimes, and with British procedural hangovers, many times, the very machinery meant to produce the product called Dharma produces instead procedural bottlenecks. A person approaching a court, an executive authority or a tribunal goes to obtain a just result but instead receives perpetuity of procedures, being pleas, petitions, reports and rebuttals in their myriad forms. The sacred soul of the body of law is suppressed. Justice is forgotten. The artificial relics of rules, regulations and their esoteric terms run supreme.

The purpose for writing this article is precisely this, that every person in this machinery for dispensing justice, be it the lawyers, the executive or the judiciary, will invoke justice, equity and good conscience and would never fail what they are meant for, being the protection of Dharma. This is what the rule of law truly is. We have to protect the rule of law, not merely the law. When we forget the Dharma and remember only the procedures, an unjust order ensues, one entirely antithetical to what law is made for.

I invoke Lord Atkin as an embodiment of Dharma working within the British paradigm. In United Australia Ltd v Barclays Bank Ltd AC 1, he famously said, taking direct aim at the archaic and rigid legal procedures that stand in the way of dispensing justice: “When ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper way for the judge is to pass through them undeterred.”

The question before the court concerned whether a bank could rob off a Customer by taking refuge under a legal defence that was technically permissible but produced a manifestly unjust result. The procedural machinery, if applied without moral compass, would have allowed the stronger party to prevail through legal form alone. Lord Atkin refused to permit the letter of the law to defeat its spirit. He reminded the court that legal rules are instruments created to serve justice and when those instruments are wielded to produce injustice, the judge must look past the form to the substance underneath. It was the application of precisely what Smritis once encoded that the purpose of legal procedure is the preservation of Dharma, and procedure which defeats that purpose defeats itself. Lord Atkin was not departing from law. He was returning to its root.

I address him as an embodiment of Dharma because he not only said this but also lived it entirely. When he was faced with the entire might of the British Empire and that too engaged in the Second World War ; he gave the landmark dissent in the case of Liversidge v Anderson. One Robert Liversidge was detained by the State under a wartime regulation. He demanded his grounds of detention. He was denied. The Secretary of State had merely to write that he had reasonable cause to believe that the detainee was of hostile origins. The majority observed that even if the Secretary of State thinks that he had reasonable cause, it becomes so.

Lord Atkin, for Dharma without knowing so, was the sole dissenter. His sole dissent is one of the greatest statements of Dharma in its content of justice. He said:

“Their Lordships in this case have, I regret, prolonged imprisonment of a subject without trial for reasons they decline to disclose……. I know of one authority which might justify the suggested method of construction. When I use a word, Humpty Dumpty said in a scornful tone, it means what I choose it to mean, neither more nor less. The question is, said Alice, whether you can make words mean so many different things. The question is, said Humpty Dumpty, which is to be master — that is all.”

He invoked Humpty Dumpty from Alice Through the Looking Glass to bring home the point that Justice “The Dharma” is to be the master. And when we make someone or something else the master, Dharma, the justice, is destroyed. This served as a lodestar for all the generations who have been touched by the notion of justice.

Lord Atkin further held that laws may be changed during the war, but they speak the same language in war as in peace. He said that judges are no respecters of persons and stand between the subject and any attempted encroachments upon his liberty by the executive, alert to see that any course of action is justified in law. This is what our entire constitutional morality is built upon.

Today, in our constitutional framework, this principle finds expression in Articles 14, 19 and 21 of the Constitution of India. Every judicial officer, every advocate, every executive authority who invokes justice, equity and good conscience invokes Dharmo Rakshati Rakshita without knowing its name. When a High Court grants bail to an undertrial languishing for years because the machinery of justice moved too slowly, that is the true protection of Dharma.

The verse from Manusmriti is not a relic of a distant civilisation. It is a living principle. Atkin understood it from within the British paradigm. It has been the lodestar of all the Jurists and Practitioners who have understood what their mission is for. Everyone in the machinery of law enforcing and propounding justice over procedure continues this sacred tradition.

Dharma is the sacred thread which preserves the order. It preserves against the despots. It preserves against the bigots. It preserves the society. Times may change, from wartime to peacetime, from ancient to modern, from common law to constitutional law, but Dharma is as timeless as is the Supreme Being. / DAILY WORLD /

(Gaurav Datta is an advocate. Views expressed are personal.)