Showing posts with label hindu view of state. Show all posts
Showing posts with label hindu view of state. Show all posts

Sunday, March 17, 2024

The Training, Qualifications, Character and Powers of Ministers in Ancient India: A Study in Harmony - Sandeep Balakrishna

A KEY LINK TO UNDERSTAND both the theoretical and practical functioning of politics and statecraft in ancient India up to the destruction of the Classical Era is not to view it from the prism of what is known as democracy. While we can find contemporary terminological equivalents to adequately describe and analyze various aspects of Hindu polity, we must have a vivid picture of its practice. The chief sources that enable us to get this picture include epigraphs, language, literature, writers on Rajyasastra and Dharmasastra, numismatics and what are derisively dismissed as “oral legends.”

It is also incorrect to somehow “prove” that democracy existed in ancient India—i.e., the sort of democracy that has been in vogue for roughly the last three hundred years. At best, it can be said that some practices and elements familiar to us today did exist back then. But in this case, the parts do not make the whole. It is akin to saying that all creatures that have wings are eagles.

A reasonable definition of ancient Indian polity and statecraft is that it was a Circumscribed Monarchy where the power of the king was constrained by a Council of Ministers. Every writer on Indian polity from Manu onwards held that a good administration was one where the King and the Council of Ministers were mutually afraid of each other, and in turn, all of them were afraid of public opinion. For more details on public opinion in ancient India, see the essay series linked below.

Unlike contemporary democracies, the ruler had to compulsorily be a warrior first and an administrator next. Among other things, good administration was defined as a powerful method of preventing war and winning it if it occurred despite solid administration. Almost every royal fiat had to be whetted by the Council of Ministers before execution. In turn, these top echelons kept a hawk-like vigil on the daily life of the people, generously rewarding their good conduct, service, fidelity to tradition, and punishing faults and crimes in a timely fashion. Although this system eventually thawed and was vandalized to the point of extinction, its foundational features remained intact in the DNA of our people even after India attained a questionable independence. To quote the memorable words of the stalwart of epigraphy R. Narasimhacharya, these features contained in our historical records “bear testimony to the prowess, piety, generosity, patriotism and toleration of our princes and the people.”

P.K. Telang also describes this system beautifully:

The word Rajan (or King) means one who can keep the people contented. Power and authority were implicitly admitted to rest on the sanction and the good-will and consent of the people. The ultimate right of the people to be the sole arbiters as to the kind of government they would have and the persons they would have to govern them, was recognized. This recognition was given concrete form in two restraints on the power of the King…He could not transcend Dharma. What is Dharma? The custom of the people, admitted and sanctified as binding law and imprimatur of those who were the knowers and guardians of the people’s culture. He could not break the word of the Brahmanas. Who were the Brahmanas? Those who having acquired culture and knowledge, gave everything to the service of the country and the service of the people without expecting anything in return. Their watch-words were self-renunciation and self-sacrifice in the service of the nation. You will note how both these checks would lead to the substantiation of the ultimate power of the people.

But this does not mean that the system was perfect in all respects. There are numerous instances that show conflicts between the King and the Council of Ministers.

An early instance of this conflict occurs during the rule of the daring and indomitable Śaka ruler, Rudradamana I of the Western Kshatrapa dynasty. He placed an ambitious proposal to repair the dam of the Sudarshana Lake at Junagadh. After much deliberation, his Council of Ministers shot it down because it was cost-intensive. But Rudradamana had given his word to the people. And so, he rebuilt the dam using his personal money or privy purse.

Ministers were able to wield such extraordinary clout owing to their selection process, detailed for example, in Kautilya’s Arthasastra. Before being appointed, they were subject to rigorous tests which were above and beyond their scholarship, talent, skill or experience. These tests had everything to do with their personal character, foremost of which was absolute integrity and absolute loyalty to their land. This is the fabled fourfold Kautilyan test:

1. Religious allurement

2. Financial enticement

3. Sexual temptation

4. Inducing physical threat

Depending on which tests the aspirant passed or failed in, portfolios would be allocated. For example, if a candidate failed in all tests but passed the test of sexual temptation, he would be placed in charge of “pleasure grounds” or brothels. The candidate who passed all the tests would be appointed as the Prime Minister.

It is precisely this element that is missing in our IAS, IPS, IFS and other high-level recruitment processes. Thus, it is unsurprising that a barely-disguised, one-man breaking-India force like Harsh Mander still roams around scot-free.

These tests apart, appointments to ministerial offices entailed these qualifications:

  • A solid training in the arts including music, drama, poetry, etc.

  • A thorough mastery over grammar

  • Impeccable and exquisite handwriting

  • A cultivation of vision and foresight

  • Strong memory

  • Eloquence

    • Health, vigour and enthusiasm

    • Basic or advanced military training

    • A demeanor that exuded dignity, poise, composure, charm, and wit

    • Round-the-clock availability to everyone including the lowest classes of people

    • A genuine attitude of affection and warmth towards all classes of the society

    • Ruthlessness sans personal hatred when dealing with criminals

    • Purity of life by not missing the key elements of Achara and Vyavahara such as performing the prescribed Dharmic rituals, festivals, Vratas and doing regular Daana.

  • The Mahabharata has a beautiful set of verses that gives perhaps the profoundest list of qualifications and qualities a minister must be endowed with.

    Oh Rajan! Take care that your ministers should be men well-versed in the Sastra of politics and the application of the six gunas: noble birth, devout, bereft of faults, good politicians, clever lawyers, and learned in history. They must be skilled to read the unwritten signs and intentions (Ingitajnana) like an open book. They must fully know what should be done and when. They must be heroic and strong. They must well-born and well-bred, keen witted, and must succeed in all works that they undertake. They must be experts in the art of warfare and in the strengthening of forts in order to make them impregnable. They must be deeply learned in the Dharmasastras, they must be broadminded and show mercy in situations that elicit it. They must be wise, endowed with foresight and must command the wisdom to circumvent all future dangers and must have the inner strength to face and subdue the present threats. They must keenly anticipate the motives of their foes and friends alike. More vitally, they must learn how to deal with indifferent and lazy kings who act purposelessly and must guard their secrets, standing firm like rocks.

  • O King! These ministers must be strictly Dharmic, generous and immune to all temptations. In a word, such ministers are strong and fit, like patient cows, to bear the burden of the state upon their backs.

    The history and culture of the Indian people and their civilization is an inspiring, sublime, and exalted kaleidoscope pieced with lovely patterns of the lives and legacies of such ministers. From the immortal Kautilya to the true, contemporary Ratna of Bharatavarsha, Sir M. Visvesvarayya. If one Kautilya, one Darbhapani, one Vidyaranya Swami, one Thimmarasu and one Visvesvarayya could sculpt the fortunes of and bring light, prosperity, and joy to an entire Rajya, imagine what an entire cabinet of such light-givers can do.

  • Small wonder that Kautilya and other Hindu writers and lawgivers recommended that the King should follow the Prime Minister as “a student follows his preceptor, and a son his father.” In a superb feat of creativity, the Kannada blockbuster movie, Sri Krishnadevaraya brings this feature vividly alive in the scene where Prime Minister Thimmarasu slaps the newly-coronated emperor Sri Krishnadevaraya several times in a row. The Raya’s response: “I understand that there is an intrinsic message of virtue and warning in your slaps. It only shows the depth of your affection towards me.”

    We believe further commentary on this point is superfluous.

  • Courtesy: https://www.dharmadispatch.in/history/the-training-qualifications-character-and-powers-of-ministers-in-ancient-india-a-study-in-harmony

Thursday, December 14, 2023

Scope Of Smṛti And Nature Of A Dhārmic State – Part 3 by Shankara Bharadwaj Khandavalli

 Envisaging a Native Constitution

A constitution based on dharma and meant for a dhārmic society, would ideally base itself on the scheme of dharma. It understands how morality builds bottom up and takes cognizance of institutions of society that help maintain such a moral order. The reconciliation between individual and collective reflects in the way constitution enshrines ideals. Besides, a native constitution takes cognizance of dhārmic view of man instead of an occidental view. This has several implications on how a constitution designed for a Hindu society looks like.

Layering

First is that constitution would base itself on Indian moral scheme, which is subtle and evolved: It has several layers, deeper ones are based on permanent human nature (Sanātana) and upper/outer layers are based on stages of social cycle (yuga dharma), changing times (deśa, kāla). Basic structure and deeper layers of constitution must be based on the unchanging laws, and temporal layers should be based on the changing times. This stratification is absent in Indian constitution because it does not base itself on an evolved scheme of morality such as Dharma.

The basic structure of constitution as we currently know, a notion introduced to prevent distorting the document out of shape by legislators, as happened during Indira Gandhi’s tenure, is not based on such scheme of what is permanent and what is temporary, but on some ideals that were falsely deemed to be permanent features of this nation, all of which were introduced after independence.

The permanent features of the nation depend not on the physical boundaries of nation but on permanent principles of nature and human nature. The primal consciousness qualities (guṇa), principle of action and righteousness (karma and dharma), human craving for fulfillment (puruṣārtha) are the permanent principles that form the “basic structure”. This layer does not strictly become a basic structure of a constitution, but becomes a meta text that a constitution derives from. This portion of smṛti continues from older ones and its principles derived from axiomatic texts.

A nation’s defining identity comes next to this, and derives from how a “law of the land” is defined based on the above principles. The nation will be seen as an aggregate of all those geo-cultural units and their distinct cultural identities will be taken cognizance of. This is in stark contrast to the way post-independence nation was seen as an aggregate of geo-political units, first seen as princely states then dissolved into 20+ states, again geo-political units. A dhārmic constitution sees the union of states with respect to their alignment with geo-cultural units, and takes cognizance of the geo-cultural units as more permanent defining identities of peoples. Geo-political units will be constituted in a way they represent these geo-cultural units.

The institutions of a self-governing nation have far greater autonomy from the institutions of state when compared to a nation-state. State would make an explicit policy of its responsibility to align with nation instead of force-fitting the nation under a nation-state. The way the state sees itself and the nation would derive from the above. Some of the aspects that can be highlighted –

Human liberties are not bound by fundamental rights but become enablement for fulfillment of the highest order, the puruṣārtha-s. State does not provide these rights or liberties but they are “naisargika” or birth rights that nature endows on humans. State on the other hand, has the accountability to ensure against violation of natural liberties of humans. The fourth puruṣārtha-s of infinite happiness and freedom, is the ultimate human craving and the freedom of individuals, perceived and possessed are proportionate to the extent of manifestation of intrinsic nature (explained in Dharma section above). The fact of an ultimate human craving of boundless freedom is reconciled by limited outward binding of liberties on the basis of violations of collective spaces and the restrictions state ever imposes on individuals are limited to those violations.

State legislates its own responsibilities rather than interfere with social life to enforce morality, taking cognizance of the fact that in a dhārmic society ideals do not flow top-down but built bottom-up. This also means that there is no uniform standard of “morality” but implies stratification and diversity based on the way individuals and groups organize themselves. State largely enters as a mediator during violation or conflict rather than as a defining authority for morality. State understands that establishing a moral order is largely a result of a strong self-regulating society, and that promotion of high values of life and civilization is something the knowledge and traditions alone are capable of doing.

Nature of Individuals and Society

There needs to be an epistemic basis for understanding what the nature of the society is, before defining the nature of a state that aligns with such a society and enables/protects it best. To lay down this basis the smṛti devotes, ahead of sections on state, to sections on explaining the nature of individual and collective life. These sections are not to be construed as a rule book. The spirit of smṛti itself is to explain the nature of things that form basis for formulating policy rather than a list of do-s and don’t-s.

The elaborate descriptions of individual and collective life, including varṇa and āśrama dharma, are otherwise out of place because state is not the one that decides how individuals should live, what their lifestyle should be and what is the expiation. These are rather descriptions of how individuals in society, belonging to the three primal consciousness qualities and at different stages of their life, live their life, without knowing which violations to their liberties cannot be understood by the state, and without formalizing those the state cannot create appropriate policies or impose just penalties.

Unlike constitution that does not have an ontological basis but has only a moving reference driven by ideals and rights determined by an evolving phenomenal social convention, smṛti lays down these bases very clearly, to enable the state formulate policies that optimally deal with situations by making necessary trade-offs and prioritization whenever there is a conflict between temporal and permanent principles.

Constitution holds “caste” discrimination to be a social evil and creates a linear OC/BC/SC/ST ladder in enlisting different caste groups to selectively privilege some underprivileged groups to achieve parity in empowerment. As post-independence polity witnessed, caste identities only solidified with more political alignment and the collective craving became identification with backwardness instead of abhyudaya. One cannot deduce this to be a social problem independent of state, it is rather a problem created by state in the society.

In contrast, in Hindu states run by the vision of smṛti-s, as history witnessed, Hindus of all groups stood shoulder by shoulder both in contributing to the prosperity of nation and in fighting external enemies such as Moslem invaders and Christian colonizers. The problem of disproportionate privilege, primarily a result of two phases of colonial rule (slavery and feudalism), needs to be undone with an organic view of what the nature of society is and how it responds to various challenges.

Hindu view is about understanding how things work than force-fitting data into a narrative. We need to therefore consider what is natural:

  1. When a society is subjugated, all sections suffer, each in a different way to a different extent.
  2. When an external trauma is caused, body does develop internal disease too.
  3. A prospering society sees harmony if laid on just principles, and a diverse society when constrained and subjugated sees greater internal trauma.
  4. While at an individual level empathy is helpful, a solution at macro level involves deeper and dispassionate understanding of the workings of society. Policies made out of former are good for emotional appeals to society and vote bank politics, but not in alleviation of problems.

These premises, as one can factually validate with centuries of data of what happened and is happening to Hindu society, leave no credibility with the outside-in prism that the state currently adopts. A dhārmic rājya does not legislate discrimination or against it, for solutions to social problems need to be organic and coming from the seers that understand their nature and can envision institutions that not only solve the effects of past but form the basis for abhyudaya of the entire society.

For a solution to an internal problem created by an external factor (the non-aligned state), we will need to undo the principles that underlie the creation of such problem in the post-colonial rule. The assumption of a linear money-power ladder should be removed and state should adopt an insider prism towards the society instead of an outsider prism.

Groups would be allowed to thrive on their strengths, rather than made to compete in a linear ladder and a constrained space. One of the primary causes of Hindu success over millennia is the expanding space various groups had in economic, political and knowledge spheres. Enablement of individual and collective fulfillment is largely a function of institutions of society, and state’s responsibility is limited to remove institutions of oppression and ensure that state remains committed to principles of dharma in policy making.

Smṛti would not make policies based on specific kula-s, such as enablement or disablement of opportunities. These are left to the institutions of the society. This is why there are no enlistments of kula-s or jāti-s while explaining the nature of society, but only a varṇa-āśrama dharma without alignment with specific jāti/kula groups. These are mobile and ever changing, and policies of state are meant only to ensure fairness based on the nature, function, action and situation instead of group to which an individual belongs. State also would not make a decision of which group or individual is to be identified with which layer of hierarchy.

As could be empirically validated in the long history of Bhārata, no single group remained in power all through. No single tradition assumed monopoly of knowledge. No single group remained rich all through. No single group remained forever high or low in the ladder, and the mobility of individuals and groups in the long run remained the reason for the resilience of this nation and her culture. While a lot of data needs to be mined to validate this, a quick example would serve to demonstrate the point – one of the biggest empires for most part after Mahābhārata until foreign invasions, Magadha had seen several royal lineages (listed in many places including Sri Kota Venkatachalam’s Kaliśaka Vijnānam, while dates etc. are a different topic the list of lineages and their backgrounds holds good), a majority of which had risen from Śūdra groups. Individuals and groups had risen up and fallen off in the ladder, and the general principle is that more groups see upward mobility in a prospering phase and more groups see downward mobility during a subjugation/low phase of civilization, while other groups rise to the task to put up a struggle, fewer groups have the chance to come up and more groups are likely to suffer.

There would be temporal policies of upliftment from time to time, through enablement of individuals and empowerment of representatives. Hindu society is a meritocracy and mobility of individuals and groups is the vehicle for a dynamic equilibrium and balance of power. While state caters to the bottom rung or survival layer through explicit poverty alleviation programs, there is no interference in the policy of institutions to ensure the most qualified individuals come up and in turn allow the society to reap the benefits of the best abilities of individuals. The qualifications – technical or of character, are articulated by individual traditions and are not administered by state while their general nature is taken cognizance of, again not for policy making but to ascertain fairness in case of violations reported that explicitly seek state arbitration.

The collective abhyudaya of groups is achieved more through a passive enablement by state, since it is realized that it is the human puruṣārtha that causes abhyudaya. The empirical fact of movement of individuals and groups across different varṇa-s and āśrama-s, their evolving roles in society is not explicitly articulated in a smṛti for that becomes a sāmānya or a commonly known collective dynamic rather than as a formal state policy.

An engineered society’s liberties and fulfillment are scuttled, and smṛti takes cognizance of this fact to limit state policy to ensure protection of those permanent institutions that in the long run ensure the dynamic equilibrium through the puruṣārtha of individuals and groups. Here again the smṛti reposes trust in human nature, craving for fulfillment, individual and collective tendencies and the inherently evolving nature of society, as explained in the Morality section. In the long run, a healthy mobility and dynamic equilibrium as was possible in Hindu society will be possible through a highly autonomous society, while an engineered society becomes dependent on systemic power structures and loses sight of higher goals, liberties and abhyudaya. Besides, an organic mobility involves rise of groups that are best positioned to lead the society in the given circumstances, unlike in an engineered society in which the collective abilities are throttled by least common denominator.  This can be demonstrated by the simile of a vitalizing of body and immunity system to overcome disease versus an external medicine applied to the body which has side-effects as well as fails to develop the general health and strength of the body.

Rāja Dharma

The nature of state and its responsibilities are also defined, not just as duties of state, but as its intrinsic nature and cravings in a way that they align with the nation. This nature or order is called Rāja Dharma. We continue to use the word rāja, however this does not necessarily point to the monarch but head of state. These are exhaustively dealt in dharma Śāstra-s including Mahābhārata (Śānti & Anuśāsanika parva-s) and smṛti-s. Some aspects/principles of it highlighted below.

yathā rājā tathā prajā (as the ruler, so the people) is one of the foundational principles of a dhārmic state. There is a great onus placed on the state to ensure a right conduct of state machinery and individuals serving the state, since the people are supposed to emulate the ruler.  The people in a society ruled by a righteous ruler will be encouraged towards a righteous conduct, resulting in highest individual and collective fulfillment and abhyudaya. A society ruled by an unrighteous ruler (either by character or by dereliction of duty) will decline into a chaotic order. Corruption, be it fiscal or moral flows from the top and the most righteous conduct at the top ensures an overall righteous order and a peaceful, prospering nation. Thus, while ideals are not defined by state for individuals, they are defined for the state in a way that the state leads by example in sustaining an overall righteous order.

rāja is the pālaka or protector of people and their liberties and means of development/abhyudaya whose willpower actively aligns with dhārmic nation’s puruṣārtha. This is a principle that defines an active role of the state as the one that envisions and executes its own responsibilities towards the nation. To show the right direction to the society in times of dilemma, is the responsibility of state. To draw a parallel to present times, in the prevalent conflict between value systems of dharma and western morality, it becomes the responsibility of the state to resolve the conflict with the help of seers and scholars, and establish a non-chaotic system of rule that ensures liberties, enablement and abhyudaya as per the permanent principles of nature.

An associated principle of active nature of state is rājyasya mūlaM rāja (head of the state is also the root of the state) which indicates the importance of the willpower of ruler in the highest collective fulfillment/abhyudaya. This aspect becomes important, in ensuring positive growth of nation, its security, relations with external elements and other nations/states, in ensuring collective pride and identity, in steering state towards a secure and bright future.

prajā ranjakatva is the quality that Śāstra greatly emphasizes and we have most famous examples like rāma rājya. Governance should be pleasing for people and should endear the rulers to people through its policies, effectiveness, fairness and approachability, protection of liberties, security etc.

SikshA dakshata or the ability to just penalties that sufficiently discourage crime and removes fear from the minds of people with the right conduct. This will be discussed more in justice and penalty section.

Protection of soft elements of civilization is a primary responsibility of state and this is not seen by dharma merely as an activity of civilized to society to protect weak from strong. Protection of soft elements, including sense of beauty and growth functions, hold the possibilities of high civilization and are kept aloof from the lower functions of sustenance and protection. Thus protection of seers scholars and artists, women, children etc. is a responsibility that is greatly emphasized by dharma and is visible in the questions to rulers by rishis of all ages. Right from Nārada’s questions to Yudhiṣṭira to Marāṭhā affirmations of protecting these elements, this spirit is well understood all through the history.

Protection of weak from strong and powerful is the responsibility of rāja in the form of ensuring against violation of liberties of the weak (people not in positions of power or holding money or muscle power) and against exploitation. However, this does not ensure the enablement of weak in their own highest possible fulfillment and this is something the institutions of society ensure, in multiple meticulous ways. One is the collective capital and bargaining power of each group within the society that shields individual. Second is the avoidance of competition and confrontation between groups and individuals of parity through stratification and diversification of goals of individuals and groups based on inclination, potential and abilities. Third is the access to unique knowledge and life skill that is protected within groups that ensures their social relevance and respect. Fourth is the recognition of various kinds of power in society in play, such as knowledge, money & muscle power, demography/numbers, credibility, skill etc. and ensure that each of these is sufficiently accounted and honored as part of institutional design.

Very few of these principles are served by Indian state[1]. There is little prajā ranjakatva in the rule India saw after independence, and the elections have mostly been fought on the lowest denominator of expectations. We saw good and positive expectations being placed at a premium only as exception and leaders who do it are unlikely to succeed because only a small percentage of population responds to higher and positive expectations. The rhetoric of “people don’t have food, what will you do with super computer” worked for decades in spite of neither side of aspirations really getting addressed.

In contrast, a dhārmic rājya does not see society in “classes” that need to be appeased one at the expense of the other. The scheme of power distribution ensures complementarity and mutual dependency by separating knowledge, authority, wealth and skill. The bargaining power of these remains in an equilibrium, there is skewing that comes from time to time in one direction and gets automatically checked and balanced out with pulls from other directions.

Morality and Ideals

In a Hindu rāṣṭra, ideals do not flow top down but society has the liberty to build collective morality upwards. This goes against state spelling out ideals for the nation, which is the reason smṛti-s do not spell out ideals. The institutions that reconcile the micro and macro, the vyaṣṭi and samiṣṭi (explained in section “Bhārata the rāṣṭra” above) ensure balance of liberty and accountability, and build a collective order. The complex matrix of institutions (the culture unit, extended family, knowledge tradition, spiritual tradition etc) trade each other off in ensuring checks and balances and prevent skewing in one direction, be it of liberty or lack of it, ensure against exploitation while ensuring fulfillment and productivity.

Individuals fulfill dharma, in various capacities as individuals, groups, families, pursuers of vocations, citizens of different geo-cultural and geo-political entities. Collective order builds thus. The best example is set by rāja through his own fulfillment of rāja dharma (along with other natural ones such as vyakti) in motivating people towards their fulfillment and in ensuring collective abhyudaya.

While the west is comfortable with ideals, as they come to civilize them further from their previous conditions, experimenting with temporary ideals in a linear progressive manner is disastrous for Hindu society which is founded on a thorough understanding of changing and unchanging principles of nature and society.

Justice and Penalty

Enforcement of collective order is the responsibility of state. Intrinsic nature of beings becomes the basis for explaining human behavior and offense/violation of collective order is defined on the basis of assumption of a very wide civilizational spectrum and thus violations taken cognizance of are few. While state codifies several penalties, the general assumption is that the collective order is largely self-regulatory and state arbitration would become necessary in very few cases of serious violations of order.

The statement “law applies equally to all”, is often a statement of uniformity of law. However, it depends on the very nature of law, and if the law is a natural order, then its enforcement while fair and equal, cannot be uniform. The philosophy of penal system needs some explanation therefore, to put this in perspective.

There are multiple bases for determining the penalty imposed by state –

  1. Make sure the individual suffers and pays back for the offense so that his parārtha does not suffer. This is the duty of rāja failing which rāja accrues the sin.
  2. Deterrence of crime as a result of penalty, by making example of offenders and creating enough fear among offenders.
  3. Realization/transformation in the individual (ideal)
  4. Prevention of disproportionate penalty

A small folk story helps to put this in perspective. A king, ever concerned about the welfare of people and his ability to serve justice, once meets a saint. The saint, pleased with the king, decides to grant him a wish. The king requests that he needs a guide that tells him the correctness of judgments. The saint gives him a colorless stone, and tells that the stone changes colors based on the correctness of judgment and severity of penalty. For a just punishment it turns yellow, for a disproportionate punishment it turns red and for a mild punishment it turns blue. The king wishes to test the stone and while he roams in a village disguised as a civilian, he sees an incident. A group of boys assemble, one boy breaks the toy of another and they fight to resolve the matter. The king picks three boys assembled there and asks them to pass their judgments. The first boy says that a new toy must be given as substitute and the stone turns blue. Second boy pronounces punishment of 50 lashes and the stone turns red. Third boy says “what penalty could I impose to make the boy realize his mistake! If I had the power, I would do so” and suddenly the stone turns yellow. This explains the relative priorities of dhārmic justice system where positive transformation supersedes deterrence while high penalty has often been recommended for deterrence.

The algorithm for determining just penalty is fairly complex and involves several factors. The bases for determining penalty include guṇa and karma, and an evaluation of how much and the nature and severity of impact of penalty on the individual, rather than fixing penalty based on offense. These are the major factors involved –

  1. Nature of the offender
  2. Nature of offense
  3. Motive of offense
  4. Position of the individual and impact of penalty
  5. Nature of individual
  6. Nature of transformation expected

While a critique of present judicial system and penal code is too elaborate for the current scope, the philosophy of equal penalty suffers from unequal impact and hence fails at transformation and deterrence both. For instance a small government employee suffering 7 years of jail has his life destroyed while the same penalty for similar crime by a politician would mean that the latter may have much less actual imposition suffered, and has much less damage to his life, security, wealth after coming out. This will not only mean that laws trouble weak more than strong, but also that the deterrence for powerful people is minimal in the present system (apart from the fact that the possibility of actual conviction being low). This also defeats the other rāja dharma of ensuring the innocent and righteous should be fearless, since offenses by those within the system have less deterrence.

In contrast smṛti-s impose proportionate penalty, to the position and function/responsibility of the offender, along with his nature. Far higher penalty is imposed on cases where there is a smaller likelihood of conviction and higher impact of crime (such as people in high positions, rich people etc). There are also positive transformations through imposed roles than penalties in cases. Guṇa and karma form a complex algorithm, and it requires proper pedagogical training of dharma Śāstra to understand these. The dhārmic judicial experts have a rigorous training and several practical tests to clear before they enter the judicial system, at a regional or central level.

State machinery’s effectiveness in ensuring a crime-free society lies in,

  1. Its fairness
  2. How much it is feared by offenders and how much of fearlessness and assurance is given to the innocent
  3. How transparent and corruption free the nexus of local social regulation is with state machinery
  4. How much the need for arbitration is minimized by state and how much state consciously attempts to be non-coercive

Religious and Other Institutions

Knowledge traditions are the bedrock of Hindu civilization and their synthesis happens through the guru-śiṣya lineages. Temples and several other institutions, while at times have royal patronage, are usually run by dhārmik trusts that operate in collaboration with traditions. Temples are of several kinds, such as community, town, pilgrimage etc. Each kind has a different set of regulations to run and smṛti does not explicitly indicate any state interference in the running of these institutions. Temple remained a center of high culture and various activities right from learning, aesthetics, ritual, philanthropy, infrastructure, and so on. Given this background, state usually funded these as that directly results in an overall abhyudaya of society. While the post-colonial state took hold of several temples, there has been very little appreciable contribution from secular state. A dhārmic rājya invests positively, not just in protection of culture but in an active synthesis and development.

Marriage and several other institutions are largely social in nature and state enters only as an arbitrator rather than being a primary legal authority on these. The society exercises self-regulating mechanisms that encourage a positive fulfillment of individuals while having a wide and tolerable range of individual conduct which gets corrected within the ecosystem, through good examples, fear of stigma and so on. Religious freedom is just another natural liberty of individuals that state does not explicitly grant or revoke. Religious/spiritual practices of Bhārata have possibly the widest range that one could imagine, ranging from the aghoris to the jaina monks.

It can be said that Hindu society is a spiritual ecosystem that contains several religions (Hinduism is not but Hinduism has religious traditions), with the approximation of word “mata” (literally opinion/subscription/belief) for a religion. Vaiṣṇava, Śaiva, Śākta, Gāṇāpatya, Kaumāra, Saura are six such canonical “religions” or sects each of which has a separate theology, a supreme godhead. They multiplied by adoption of several spiritual philosophies such as sānkhya, dvaita & advaita. Thus it is more like a religious ecosystem than a religion where several religious lineages flourish, with a commonly understood set of norms for interaction. While there were brief violent conflicts outside the dialogue, the norms remain respected to this day – such as those of dialogue, norms for victory, qualification and freedom of propagation etc. Arguably Hinduism is the only such surviving ecosystem where religious traditions emerge and dissolve by the day from a fountainhead, and entire lifecycle of a religious tradition could be seen. Traditions emerge, get outdated and dissolve back into the stream giving rise to new ones. For instance several schools like Hari-Hara-Advaita (which is both theological and philosophical) were proposed, had their relevance in time, and dissolved back into the vedic fountainhead seamlessly. Similarly schools like Sānkhya (which is more philosophical) and Saura do not have living presence today as most of their fundamental tenets have been absorbed into more evolved later schools, ensuring that the knowledge and best practices survive regardless of the school’s popular practice. Nyāya schools had multiple cycles of emergence and dissolution with the establishment and refutation of their hypotheses. While this phenomenon in India began to freeze in the last two centuries and emergence and evolution of traditions has slowed down for various reasons, the culture of religious dialogue and enrichment of intra-Indic traditions continues. The assumption and understanding of an ecosystem of which each tradition is a co-existing subset, is pervasive in all the traditions. This is in contrast to the major religions like Christianity and Islam that rose more through exclusive preaching and less through dialogue/debate, and are standalone religions rather than members of a commonly built harmonious ecosystem.

Given this, the smṛti does not invoke state to grant or revoke any specific privilege to any tradition. The religious ecosystem largely takes care of itself, and any deviant conduct that amounts to criminal conduct is acted upon regardless of traditions. There are few cases where state explicitly interferes –

  1. Cults or individuals that explicitly lose debates yet propagate through fraudulent means without accepting the general norms of ecosystem
  2. Cults or individuals that attempt social discord, disruption of order and promote immoral conduct and that goes to the attention of state

Thus we see Bhojadeva acting on the nīlapaṭa cārvāka-s, Shivaji acting on the violent missionaries and so on while also protecting the non-mischievous groups like Parsis and non-violent Christian practitioners. This comes normally as part of rāja dharma, to ensure support to high civilization and in control of elements that disrupt order. This is achieved more through executive action and does not require explicit laws towards granting or revoking any rights or liberties.

Geo-polity

The basis for formation of state/geo-political unit is the geo-cultural unit. It is here that the real federal nature of the system becomes visible, while in other aspects only diversity becomes visible. The deśa-kāla layers of law vary from region to region and each geo-political unit (regional state in present parlance) codifies its own variations to this layer of constitution. This is not only a moving/temporal component but one that aligns with regional uniqueness. Different kinds and sizes of provinces, assume different kinds of laws and relation to the union, tradeoff of control and autonomy with the union. Regional states adhere fully to the permanent layer, negotiate the temporal layers and retain autonomy on the deśa-kāla layer.

Arbitration and administrative systems are federal and build bottom up, from grāma/nagara/mahānagara/paṭṭaṇa (village-town-city-port city) each having a system of arbitration (such as panchayat, gaṇa sabha, nyāya sabha etc). These are again organic and do not find explicit design in smṛti, since their arrangement is temporal and could evolve with time as civilization develops. Security system, administrative system etc. find place more in texts of statecraft than a smṛti and have explicit policies.

Conclusion

A smṛti for the age would require an understanding of traditional smṛtis, not as rule books but as guides to nature that form bases for creating constitutions. A smṛti would adopt majority elements of permanent nature from the older smṛti-s, incorporate suitable yuga dharma and deśa-kāla layers appropriately for the union and various regional states. The responsibilities of state, as prescribed by smṛti, would ensure that it aligns with the nature of the nation and plays an active role in facing external problems and a passive role in strengthening institutions of society (leaving active role to society’s self-regulating institutional structure) to solve internal problems and cause an overall abhyudaya. We believe that smṛti holds key for solving several fundamental problems of the nation in a much more organic and optimal way than the way the constitution and institutions of post-colonial Indian republic do.

[1] Democracy and Populism – https://arisebharat.com/2013/08/26/democracy-and-populism/

image credit: Picxy.com/prudhvichowdary

Courtesy: https://www.indica.today/research/raja-dharma-series-iv-c/