This Article is written by Anushka Sharma (a second-year law student at NALSAR, Hyderabad)
Abstract
The passage of laws by legislators is what contemporary society associates with the concept of law. Those who are able to discern between legal and moral laws, the latter of which is based on societal pressure and individual conscience, are more likely to be successful in their endeavours. The reality is that this is not how it’s always been. Certain customary norms were viewed as binding by the people years ago. In the present world, judges would not enforce these kinds of regulations. Also, it was unable to establish the origins of these rules. According to those who followed them, these regulations were a matter of life and death, much like laws are in the contemporary world. Mahabharata’s notion of dharma or the laws can be compared to these regulations of archaic cultures
INTRODUCTION
The Mahabharata, the ancient Hindu epic, is supposed to be epic literature on the struggle of good against evil, dharma andadharma. On deeper examination, it is the epic of flawed humanity and their quest to transcend their limitations. The Mahabharata is unique in that, unlike other holy books, its characters are more like us humans, imperfect and wayward. They are constantly confronted with moral difficulties and choices in their daily life.
The Mahabharata is an epic poem consisting of 100,000 verse stanzas organised into eighteen books, or parvas. It is the world’s largest literary work. Originally authored in the ancient Sanskrit language between 400 BC and 400 AD, it is set in a legendary era supposed to correlate to the tenth century BC period of Indian culture and history. Vyasa was the initial “author,” who attempted to relate the storey of the Great War between both the Pandavas and the Kauravas – cousins who contended to be the legitimate rulers of a country.
In essence, the epic narrative is a lengthy examination of the obligations imposed by the dharma law. Apart from narrating a remarkable story, the Mahabharata is a collection of works covering a vast range of human knowledge, including ethics, law, philosophy, history, geography, genealogy, and religion. Additionally, it incorporates a lot of legends, moral lessons, and folktales into an intricate storyline.
MAHABHARATA AND NATURAL LAW THEORY
For a long period, the traditional Natural Law Theory was identified with God.
To broaden the scope of the theory, Hugo Grotius, the father of international law, proposed that “what we have been saying would have some validity even if we did concede what cannot be accepted without the most vicious wickedness, that there really is no God or even that the affairs of men are of no concern to Him.”[1]
Mahabharata’s philosophy, like the Natural Law theory, is profoundly powerful. It vests humanity with the agency. Exclusive Legal Positivism differs from formalist Positivism in that it rejects the idea that the law has power and that people must obey the law as such. It does not claim that requiring norm subjects to determine what the norm is will erode its authoritativeness.[2]
Clearly, the Mahabharata does not represent a binary worldview. It is cognizant of grey areas. Indeed, grey is pervasive. The Mahabharata does not attempt to resolve all dharma conflicts completely. The Bhagavad Gita’s first line is “dharmakshetrekurukshetre,” emphasising that this is not a simple fight but a “just war” with enormous moral implications. However, the Kauravas’ and Pandavas’ rival claims to the throne are doubtful. Duryodhana denies the Pandavas “even five villages,” despite the fact that King Dhritrashtra had already partitioned the land. The Pandavas’ claim to be heirs is also unjust, given their father Pandu was younger than Dhritrashtra. As in reality, there is an ongoing conflict between competing evils in law.[3] The Mahabharata’s jurisprudence is concerned with determining the lesser of two evils.
Nonetheless, both the Natural Law Theory and the Mahabharata demonstrate that human reason is capable of understanding the reality known as dharma. Slavery and sati may have been considered acceptable forms of morality in the past. It is debatable, however, whether they ever comprised critical morality or dharma.[4] Sati and slavery were eliminated not as a result of a Bhisma-like avoidance strategy, but as a result of society’s capacity and desire to accept rationality. While Lady Justice Justitia may be blindfolded, the dharma trip should continue.
FAIR ARBITRATION
An old incident from Mahabharata’s AdiParva, illustrates the need for impartial adjudication and fair arbitration in ancient times. Sudhanva, who becomes embroiled in a quarrel with king Prahlad’s son Virochana, approaches Prahlada directly in order to resolve the problem. He does, however, warn him that if he makes a mistake, his skull would break into a thousand pieces. Prahlad gets guidance from sage Kashyapa, who advises him to decide the situation fairly and on merit, even if it goes against the interests of his own son.
It’s worth noting that one was not only required to resolve disputes fairly but also prohibited from refraining from stating the truth. It was this same law that compelled Sahadeva (one of the Pandavas) to provide his astrological skills to Duryodhana in order to establish an opportune moment for the Kauravas to commence the Kurukshetra war, despite the fact that he was an adversary.[5] Throughout these epics, learned men were required to maintain the greatest standards of professional ethics.
INTERPRETATION AND DECISION
In another storey of the epic, Vishwamitra is famished and desperate for food due to the famine and comes across a fresh piece of dog flesh outside a cottage. He is ready to take the meat and go when Chandala, the hut’s owner, reminds him that doing so would violate his dharma and jeopardise years of penance. Vishwamitra responds that in extreme circumstances when a person can save his or her life, he should do so, even if the means do not conform to the Dharma’s touchstone. This is because life is better than death, and dharma is only accessible while one is still living.[6] In the VanaParva, Bhishma repeats this narrative to Yudhishthir in order to demonstrate to him that the shastras cannot be studied in isolation. There are several shrutis, and no sage’s judgement is decisive.
The entirety of the shastras must be reviewed in order to get the knowledge that is neither rigid nor mechanical, similar to how modern courts assert that the entirety of the law, both in language and spirit, must be weighed before reaching a judgement. In the present scenario, language and spirit of the law are considered to be one of the most important internal aids of interpretation of statutes.
RIGHTS OF THE HUSBAND OVER THE WIFE
When a messenger summons Draupadi to court following Yudhishthir has lost her, she requests that the messenger obtain answers to her questions, without which she would not appear in court. The first inquiry is, “Who did you lose initially?” ‘Is it you or me?’.[7] However, when brought in court by the messenger, this inquiry is rephrased as, ‘Whose ownership was gone first?’ As a result, the messenger transforms Draupadi’s query into a legal matter of ownership. Draupadi complicates matters by doubting Yudhishthir’s authority over her, especially after he has become engrossed in the game. Therefore, rather than concentrating on the moral component of Dharmaraja’s behaviour, Draupadi changes her attention to the legal aspect, highlighting the issue of husbands’ rights over wives as well as wives’ liberty and freedom.[8]Vidura addressed the issue of the legitimacy of Yudhishthir’s share first, urging the sabha to respond to Draupadi’s queries. Bhishma, who is used to dealing with state issues, goes on to remark that no matter what position a husband is in, his possession over his wife doesn’t really end.[9]Karna echoed this viewpoint, claiming that Yudhishthir had already lost Draupadi since he had lost all of his belongings as a free person as he lost himself.[10] Consequently, in their responses, Bhishma and Karna both see Draupadi as a possession that may be possessed.
However, as society progressed with the passage of time, such laws have been subjected to multiple changes. But we still find a similar proposition in many statutes.
COGNIZANCE
Karna’s body has been found on the battlefield and is awaiting burial. There’s the Pandava side, who’ve just discovered they’ve slain their own brother inadvertently. There are two sides to this storey: Duryodhana, who lost a buddy and learned that Karna died for him, even after learning that the Radheya had become Kauntey.[11]
Karna’s death brought a new dilemma to light: Who has the authority to perform Karna’s funeral rites after his death? The Pandavas have a legal claim to Karna’s corpse because of their filial bond and the Hindu tradition that recognises him as their biological brother. He may assert the same authority because Karna is his army’s chief commander and a personal friend of his.
The answer is predicated on how definite we can be about what Karna became towards the conclusion of his life. If he were a Kaunteya, the Pandavas’ claim would have weighed heavily on his mind. Duryodhana’s rights would be strengthened if he transformed into a Radheya. Arjuna was then questioned as to whether he had killed Kaunteya or Radheya. Arjun’s response was, of course, Radheya.[12]
This is referred to as Cognizance under current Indian evidence law s3, which defines it as whatever a person is cognizant of. The rights of Duryodhana over Karna after his death gain more justification as Karna became Radheya, a close associate of Duryodhana and the Chief Commander of his troops in the cognizance (conscious knowledge) of the disputing parties. According to the Mahabharata, this is precisely what Lord Krishna determined.
CRIMES AND MURDER
Ashwathama had the blood of the five Pandavas’ children on his hands when he killed them. To gratify Duryodhana, who wanted to see the Pandavas dead before he died, he slaughtered them while they were sleeping. Once he realised his error, Ashwathama was sorry for the murder of five innocent children and made his way to Sage Vyasa’s hermitage to atone. The Pandavas are devastated by the news of this catastrophe. It’s Bhima who is determined to assassinate Drona’s son, Bhima! Vyasa’s ashram is located near the Bhagiratha riverbank.
Now that Ashwatthama has been activated, he sends the Brahmastra to slay the Pandavas in order to fulfil his vows. Arjun is instructed by Shri Krishna to use the same Astra from his arrow to fight the Brahmastra, but Sage Vyasa prevents the two deadly weapons from clashing. He’s well aware of the potential ramifications for the cosmos. Ashwathama, on the other hand, is unable to locate Arjun’s weapon. As a result, he deliberately points it at Uttara’s womb, which was home to Abhimanyu’s unborn son.
The Indian Penal Code, 1860, s. 315 states that if a person intends to prevent the birth of a child or cause it to die after it is born, he or she will be punished with imprisonment of either description for a term that may extend beyond the time necessary to save the mother’s life. For his crimes, Lord Krishna also asked him to cut the diamond from his forehead and traverse the world in quest of compassion, love, mercy and peace of mind. Ashwathama’s immortality and need to bear the weight of his transgressions meant that this curse was more deadly than death.
KEY TAKEAWAYS: THE MAHABHARATA AND THE PRESENT SYSTEM
It is great that the Mahabharata play was warmly welcomed since it serves as a signal to Indians as well as the world at large that the Indian culture includes something more than the idealism and nonviolence exemplified by leaders such as Jawaharlal Nehru and Mahatma Gandhi.[13] It provides guidance comparable to Sun Tzu’s and Machiavelli’s wisdom and realpolitik – practical techniques that assist the ultimate objective of political and military victory. Mahabharat’s two primary characters, Shakuni, the maternal uncle of the Kaurava clan and Krishna, the Pandavas’ maternal cousin and the incarnation of a Hindu god in Hinduism, both expand on these tactics. These two characters discuss a number of political methods that may have actual political significance today.[14] This is especially significant since it provides Indians with a genuine perspective on the world that is anchored in their civilisation.
Moral Superiority and Justification of Wars
In today’s Indian politics, there is a lot of concern about retaining one’s moral superiority at any costs. A conflict with China in 1962 was sparked by this type of thinking, as the Diplomat has documented. Indians have always had a strong sense of idealistic belief, and it has frequently led to devastating consequences. PrithivrajChahaun, the Hindu ruler, fought and captured the Muslim Afghan invader Mahmud of Ghor at Tarain’s first Battle of Tarain in 1191. He did, however, free his prisoner since it was seen ethically proper to do so. Muslim dominance over the whole Ganges river valley was established in 1192 when Mahmud returned from exile and conquered, captured, and killed Prithivraj. When it comes to the Mahabharata, Krishna advocates the employment of dishonest and immoral tactics in order to achieve moral goals. When significant concerns are at stake, the means justify the ends.[15]
Because of Gandhi’s influence, the Indian faith has established a reputation for being entirely nonviolent. Gandhi went so far as to say that it was preferable to preserve the concept of nonviolence above turning to violence for any reason, including self-defense. The Mahabharata, on either hand, recognises the concept of a fair conflict.[16] According to Shakuni, war should be used only when all other options have been exhausted, and once used, it should be waged until the end. Krishna also instructs Arjuna, a Pandava, in the epic that if a battle breaks out, it is not only justifiable but also obligatory to fight for a righteous cause.[17] It is also obligatory to resort to war to achieve a desired outcome rather than to avoid violence on the basis of the concept of non-violence. Because of its fundamental moral uneasiness with power, modern India’s attitude of war and its military frequently appears half-hearted and constrained.[18]
Discrimination by caste and violence against women
During the Mahabharat, both Krishna and Shakuni contend that laws and conventions should serve specific societal tasks and that when they no longer do, they should be abandoned or obeyed only lightly. When a rigid line of conduct is pursued, duty can therefore be altered. In the Mahabharata, the Panadavas felt honoured to play a board game until the conclusion, even if it meant gambling away their country and queen. A inflated sense of obeying a restricted rule-based honour leads to caste-based oppression or violence towards females in many regions of India today.[19] If adhering to such a rigid sense of morality leads to immoral behaviour, it is time to reconsider one’s sense of responsibility and honour.
The Mahabharata, while being an ancient epic, has much to offer modern India. This is why it remains relevant and popular today, generating successful series, retellings, and plays. Its ageless precepts continue to influence Indian thought, continually drawing it away from extremes – the extremes of idealism and immorality.[20] Instead, it contends that it is sometimes preferable to resort to what appears to be unfair in order to attain more justice.
Throughout the Mahabharata, women face an oppressive environment. Polyandry has never been a topic of interest to Draupadi or her readers. There are further explanations for this unique arrangement in the Mahabharata. Even in the previous incarnation of Draupadi, who requested a spouse who had five attributes, Shiva couldn’t locate one so he gave her five of them. She should not have requested so much.
For centuries, Draupadi has not been seen as an ideal role model in Indian society. There are also subsequent writings in Sanskrit and English that ridicule her. It’s still a common refrain at Hindu weddings to say that the bride should look like Sita, a character from the Ramayana.[21]Unless the purpose is to condemn the newlywed, no one ever argues that a bride should be like Draupadi.[22]
In the Mahabharata, kidnapping a lady to force her to marry is likewise permitted. When Arjuna falls in love with Subhadra, he abducts her because he is unsure if she would accept him. As depicted by Doordarshan, this narrative has been cleaned up in certain later retellings, which tend to dampen down misogynism.[23]
There are certain fundamental concepts that haven’t changed much in our society today, despite its many differences in form and function. Draupadi’s suffering has been likened to that of ‘Nirbhaya’, a young woman who was gang-raped and killed in Delhi in 2012. An assaulter subsequently claimed that Nirbhaya’s fearlessness drove him and his fellow assailants to be more violent than they otherwise would have been. Even now, the corrupt moral’ that she should not have reacted to wrongful treatment persists.
IMPORTANCE OF THE BOOK
The book is therefore very much valuable and important in the present times. The book teaches multiple lessons regarding the law and societal issues. It signifies the importance of morals, peace, war, diplomatic relations, protection of the kingdom, sovereignty, etc. It elaborates the various principles of Indian households. It has an emphasis on culture and the religion. However, during the ancient times of Mahabharata, the society was severely patriarchial. The social norms with gender specified. The sheer dominance of masculanity was at its peak. Women were just treated as an object. This book somehow shows that the things need to be changed with the passage of time. The development of law across the nation has attempted to change this scenerio. But our society is still deep-rooted in the ancient patriarchial norms.
This holy book depicts the significance of warfare, diplomacy, statehood, armaments to win a territory. It also shows the But when one understands the book, it somehow silently screams for the world peace and disarmaments.
CONCLUSION
The Mahabharata does not depict a world that is either black or white. It accepts that there is a lot of room for interpretation. It is not meant to resolve the Dharma debate in its entirety. When faced with a choice between the two evils, the jurisprudence of Mahabharata deals with the problem. Instead of the narrative of Dharma and Adharmic, it is the storey of Adharmic’s victory. Is defeating the Kauravas, despite their wrongdoing, acceptable? It’s a yes from Lord Krishna, since he chose the lesser evil. Similar to the famous Hart-Fuller argument, Professor H.L.A. Hart’s statement that in certain circumstances the choosing of the lesser evil, may be desirable.
Just because of that, the Mahabharata, via the ongoing dilemmas encountered by its characters, can be useful in resolving current issues concerning dharma’s function in society and its nature, as well as its existence or disappearance in law.
As we see now, the promise made in the Mahabharata to examine issues like moral corruption, political corruption, misogyny, and individual identity formation as universal aspects of human existence has never been more relevant than it is today! Politics and laws in India have taken a gloomy turn over the past several years as nations have turned their backs on the ideas of pluralism and adopted ethnic and religious nationalisms. Violent and lethal tactics are frequently employed by countries’ administrations. Sexist attitudes have not disappeared. When it comes to Right politics, it is a crucial aspect of the present wave. The COVID-19 pandemic’s countermeasures are also reinforcing gender stereotypes in several countries. The pandemic’s impact on women’s physical, emotional, and professional safety, health, and well-being is enormous and rapidly expanding. We are also plagued with our identity. Both in India and in the diaspora, the caste system is still very much alive. Modernity has also brought with it new forms of oppression, such as racism.
[1] GURCHARAN DAS, THE DIFFICULTY OF BEING GOOD: ON THE SUBTLE ART OF DHARMA (2009)
[2]Andrei Marmor, Exclusive Legal Positivism, inthe Oxford Handbook of Jurisprudence and Philosophy of Law 117 (Jules Coleman &Scott Shapiro eds., 2002).
[3]ManasaKambanna, Law as the epics propound it, available at: https://www.thehindu.com/entertainment/art/law-as-the-epics-propound-it/article32036136.ece
[4] Rahul Singh, Jurisprudence in and as Mahabharata: an edifying epic(2010)
[5]Kambanna, supra note 3
[6]Kisari Mohan Ganguli, Shantiparva, Book XII, Mahabharata(2017)
[7]Veda Vyasa, Draupadi, Mahabharata, II.61.
[8]Emilt T. Hudson, Disorienting Dharma: Ethics and the Aesthetics of Suffering in the Mahabharata (2013).
[9]ShaliniShah ,The Making of Womanhood- Gender relations in Mahabharata (2012).
[10]Veda Vyasa, Karna, The Mahabharata, II.62.
[11]Jurisprudence of Mahabharata – Culture Critiqued, Critiqued.in. [accessed 8 November 2021]. Available at: https://www.critiqued.in/culture/jurisprudence-of-mahabharata/
[12]Mahabharata Through the Eyes of Indian Laws – LawBhoomi [online]. (no date). LawBhoomi. [accesed 8 November 2021]. Available at: https://lawbhoomi.com/mahabharata-through-the-eyes-of-indian-laws/
[13]supra note 11.
[14]3 Political Lessons from the Mahabharat, The Diplomat – The Diplomat is a current-affairs magazine for the Asia-Pacific, with news and analysis on politics, security, business, technology and life across the region. [accessed 8 November 2021]. Available at: https://thediplomat.com/2014/08/3-political-lessons-from-the-mahabharat/
[15]Ibid.
[16]Truschke, A., The Indian epic Mahabharata imparts a dark, nuanced moral vision | Aeon Essays. Aeon. https://aeon.co/essays/the-indian-epic-mahabharata-imparts-a-dark-nuanced-moral-vision
[17]Supra note 1 at 92.
[18]Hiltebeitel, Alf, (2011), Dharma: Its Early History in Law, Religion, and Narrative, Delhi, Oxford University Press.
[19]Supra note 9.
[20]Supra note 15.
[21]Supra note 9.
[22]Ibid.
[23]Ibid.