INTRODUCTION - THE CONCEPT OF DHARMA Dharma is the greatest and the most valuable contribution to humanity by Bharata Varsha, our beloved Motherland. On account of its antiquity, utility and universality the very mention of that word rouses the conscience of an individual in this land. All our present day problems are a direct result of disregarding 'Dharma', under the influence of a materialistic philosophy, in the belief that it alone can usher in happiness and secure the welfare of the people. Now it is becoming clear that human problems multiply as we go on multiplying our lust and desire for material wealth and pleasure and that the solution to all the problems, Social, Economic and Political, which the world and our nation are facing, in particular the crash of our moral edifice is, Dharma alone panacea. There is no alternative to 'Dharma'. This is the eternal truth. This can be realised, if we understand the real meaning of 'Dharma'[footnoteRef:2]. [2: Olivelle, Patrick (2000) Dharma Sutras: The Law Codes of Apastamba, Gautama, Baudhayana, and Vasistha. Delhi: Motilal Banarsidass Publishers. Pg: 128]

'Dharma is a Sanskrit expression of the widest import. There is no corresponding word in any other language. It would. also be futile to attempt to give any definition of the word. It can only be explained. It has a wide variety of meanings. A few of them would enable us to understand the range of that expression. For instance, the word 'Dharma' is used to mean Justice (Nyaya), what is right in a given circumstance, moral values of life, pious obligations of individuals, righteous conduct in every sphere of activity, being helpful to other living beings, giving charity to individuals in need of it or to a public cause or alms to the needy, natural qualities or characteristics or properties of living beings and things, duty and law as also constitutional law. Dharma is that which sustains and ensures progress and welfare 'of all in this world and eternal Bliss in the other world. Dharma is promulgated in the form of commands[footnoteRef:3]. (positive and negative vidhi and nishedha) [3: Ibid.]

Therefore, Dharma embraces every type of righteous conduct covering every aspect of life essential for the sustenance and welfare of the individual and society and includes those rules which guide and enable those who believe in God and heaven to attain moksha (eternal bliss).

ORIGIN OF DHARMA Dharma was formulated as the solution to the eternal problems confronting the human race, originating from natural human instincts. There is no act of man which is free from desire, whatever a man does is the result of the impulse of desire. In the above verse, analysing the human instinct, The source of all evil actions of human beings was traced to the desire for material pleasure which in turn gave rise to conflict of interests among individuals. Further, it was found that the desire (kama) of human beings could also be influenced by the other impulses inherent in human beings such as anger (krodha), passion (moha), greed (lobha), infatuation (mada), and enmity (matsarya). These six natural impulses were considered as six internal enemies of man (arishadvarga), which if allowed to act uncontrolled could instigate him to entertain evil thoughts in the mind for fulfilling his own selfish desires and for that purpose cause injury to others. Shashtra, on this basis, explained the causes of all civil and criminal injuries inflicted by the action of one against the other. Dharma or rules of righteous conduct was evolved as a. solution to this eternal problem arising out of the natural instinct of man.[footnoteRef:4] [4: Ibid., Pg: 212]

DHARMA As explained in the preceding chapter Dharma was formulated as a solution for problems arising out of the six inherent enemies in Man, namely Kama (desire), Krodha (anger), Lobha (greed), Moha (passion), Mada (infatuation) and Matsarya (enmity). Every civil or criminal injury caused by an individual to other individuals or society is traceable to one or more of the six enemies acting alone or in combination. This inherent weakness of man has been the subject matter of an indepth study by those who formulated 'Dharma' .The root cause for all good or bad, verbal or physical acts of individuals has been analysed and explained in Shashtra Smriti. Action which springs from the mind, from speech and from the body produces either good or evil results. By action are caused various conditions of men. Mind is the instigator for all actions which are connected with and performed by the body.[footnoteRef:5] [5: Ibid., Pg: 216]

They are of three kinds and fall under ten heads: Sinful mental actions:[footnoteRef:6] [6: Banerji, Sures Chandra (1962) Dharma Sutras: A Study in Their Origin and Development, Pg: 58]

A sin takes its origin in the mind in three ways: Coveting the property of others, Thinking what is undesirable Adherence to evil doctrines Speaking an untruth Attacking another in abusive or strong language Carrying tales against another person, and Talking ill of others Taking what is not given Injuring living beings Illicit intercourse with another man's wife The aforesaid analysis of the various evil mental and bodily actions cover the whole field of civil or criminal injury that an individual causes to another. The instigation comes from the mind. Thus, the sin first takes root in the form of mental action and thereafter expresses itself in the form of verbal or bodily evil actions which inflict civil or criminal injury as the case may be on others against whom they are directed. All the civil and criminal injuries which an individual may cause to others, such as appropriating the property belonging to others or denying what is due to others, or defamation, assault, theft, cheating, robbery, causing hurt, murder, rape, adultery, which are covered by the modern civil and criminal laws under various systems of law, fall under anyone or more of the four evil verbal actions or three wicked bodily actions as analysed by Shashtra. The several provisions made in the Shashtra Smriti follow this basic analysis. Before laying down the code of conduct for implicit obedience by individuals and the penalty for disobedience at the hands of the king (the State), Shashtra cautions everyone to have self -control, so that his mind does not act as the instigator for committing any sinful mental action which would inevitably lead to one or the other type of evil verbal actions or wicked bodily actions.[footnoteRef:7] [7: Ibid., Pg: 64]

DHARMA SUTRASSome of the most ancient legal works were the Dharma Sutras, which were in the form of aphorisms. Dharma Sutras laid down rules and laws that covered almost the entire gamut of human activity. The Sutras were divided into three broad categories 1. Srauta Sutras which regulated rituals2. Grihya Sutras which related to matters of family life3. Dharma Sutras which dealt with civil and criminal lawThe important sutras that were considered to be of high authority and antiquity were Gauthama, Baudhayana and Apastamba Sutras.Among these, Gauthamas is the oldest. He extensively covered aspects related to marriage, inheritance, partition and so on. The next sutra in order of antiquity is the Baudhayana Sutra, which deals with several matters addressed by Gauthama. However, Baudhayana additionally recognizes the need for the State (King) to regulate commerce and trade by means of collection of taxes and issuing of licenses. We find mention of various kinds of levies and taxes like sea custom, excise, sales tax and so on.[footnoteRef:8] [8: Ibid.]

However, the Apastamba Sutras are considered the most influential. Scholars opine that Apastamba was a revolutionist and his expositions were clear and forceful. Many subsequent law givers refer to Apastamba and quote him extensively, a fact which reflects his lasting influence. Apastamba stands out because he was not a conformist. He changed a lot of prevailing rules and customs which he deemed were not suitable to the changing needs of the time. For instance, he condemned the practice of polyandry in the guise of Niyoga and also took exception to the then prevailing practice of begetting a child from ones sister-in-law for the sake of alleged spiritual benefit. The commentator Sarvadhikari says, It can be seen that Apastamba was a revolutionist to the backbone and was determined to replace the old order of things by more refined and civilized institutions. It is clear that ancient Indian juridical system allowed great leeway for changes to be made to suit the demands of the time and that the accusation by Marxist historians that Indian society stagnated as a result of rigidity falls flat.[footnoteRef:9] [9: Supra note 1]

The other important law giver was Harita. His sutras laid down the rule of Prag-nyaya, which is the modern principle of res judicata. This is a very important development because it shows that the principle of finality of judgment was conceptualized and incorporated in ancient India hundreds of years before it was implemented anywhere else in the world.

CONCEPT OF RES-JUDICATA (PRAG- NYAYA) HARITATo understand the pretext reference of the original texts to get a true and correct picture of the legal system of ancient India. The reader will discover from them that Indian jurisprudence was found on the rule of law, that the King himself was subject to the law, that arbitrary power was unknown to Indian political theory and jurisprudence and the kinds right to govern was subject to the fulfilment of duties the breach of which resulted in forfeiture of kingship, that the judges were independent and subject only to the law, that ancient India had the highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today , that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with the power to review the decision of the Courts below , that disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial process in the modern State today: that the rules of procedure and evidence were similar to those followed today , that supernatural modes of proof like the ordeal were discourage , that in criminal trials the accused could not be punished unless his guilt was proved according to law , that in civil cases the trial consisted of four stages like any modern trial plaint, reply, hearing and decree, that such doctrines as res judicata (prang nyaya) were familiar to Indian jurisprudence, that all trials, civil or criminal, were heard by a bench of several judges and rarely by a judge sitting singly , that the decrees of all courts except the King were subject to appeal or review according to fixed principles , that the fundamental duty of the Court was to do justice "without favour or fear".[footnoteRef:10] [10: Creel, B Austin (1977) Dharma in Hindu Ethics. Calcutta: South Asia Books. Pg:221]

'Res' in Latin means thing a 'Judicata' means already decided. This rule operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. Its basic purpose is - "One suit and one decision is enough for any single dispute". The rule of 'res judicata' does not depend upon the correctness or the incorrectness of the former decision. It is a principle of law by which a matter which has been litigated cannot be re-litigated between the same parties. This is known as the rule of "res judicata" (thing decided).[footnoteRef:11] [11: Handbook on civil code. Pg: 16]

"Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata". Section 11 contains the rule of conclusiveness of the judgment, which is based partly on the maxim of Roman Jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. The principle of res-judicata is based on the need to give finality and certainty to judicial decisions. The principle of res judicata includes constructive res judicata also.[footnoteRef:12] [12: Ibid.]

Pragn- nyaya aims to prevent Injustice to the parties of a case that has been supposedly concluded. Unnecessary waste of Court resources. Prevent Multiplying of judgements. Recovery of damages from the defendant twice for the same injury. Claim Preclusion Issue Preclusion

HARITAS CONTRIBUTION TO PRESENT LAWThe concept of prag nyaya is called as Doctrine of Res- Judicata in present law. It is covered under civil procedure in section 11 of it. This says:No Court shall try any suit or issue in which[footnoteRef:13] [13: Section 11, CPC, 1908]

The matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties claiming under them, litigating under the same title In a court competent to try such suit or a suit in which the matter has been subsequently raised And has been heard and finally decided by such court.The following are also to be taken into account: Former suit denotes a suit which has been decided prior to the suit in question, and not if it was prior to this suit. i.e. the cut-off is date of judgement and not the date of institution of the suit. Competency of a Court is to be decided, irrespective of the right to appeal from a former suit. The matter referred to in this suit must have been alleged by one party and either accepted or refused by the other party (expressly/impliedly). Any matter which might or ought to have been made ground of attack/defence in such former suits, shall be deemed to have been a matter directly and substantially in issue in such suit (Constructive Res Judicata). If any relief was claimed in plaint and was not granted expressly, it would be deemed to have been refused in such former suit. When persons litigate bonafide in respect of a public / private right claimed in common for themselves and others, all persons interested for the purpose of S.11, will be deemed as claiming under persons litigating. It is also to be remembered that, a Court of limited jurisdiction where the former suit was instituted and decided upon, shall operate as Res Judicata, even if the Court of limited jurisdiction is not competent to try the subsequent suit.Res judicata does not restrict the appeals process, which is considered a linear extension of the same lawsuit as it travels up (and back down) the appellate court ladder. Appeals are considered the appropriate manner by which to challenge a judgment rather than trying to start a new trial, and once the appeals process is exhausted or waived, res judicata will apply even to a judgment that is contrary to law.There are limited exceptions to res judicata that allow a party to attack the validity of the original judgment, even outside of appeals. These exceptions--usually called collateral attacks--are typically based on procedural or jurisdictional issues, based not on the wisdom of the earlier court's decision but its authority or competence to issue it. A collateral attack is more likely to be available (and to succeed) in judicial systems with multiple jurisdictions, such as under federal governments, or when a domestic court is asked to enforce or recognize the judgment of a foreign court.[footnoteRef:14] [14: Supra note 10]

When a subsequent court fails to apply res judicata and renders a contradictory verdict on the same claim or issue, if a third court is faced with the same case, it will likely apply a "last in time" rule, giving effect only to the later judgment, even though the result came out differently the second time. This situation is not unheard of, as it is typically the responsibility of the parties to the suit to bring the earlier case to the judge's attention, and the judge must decide how broadly to apply it, or whether to recognize it in the first place. Public Interest Litigation, in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc. Public Interest Litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public Interest Litigation can be filed[footnoteRef:15]. For e.g. [15: Ibid., pg: 18]

Violation of basic human rights of the poor Content or conduct of government policy Compel municipal authorities to perform a public duty. Violation of religious rights or other basic fundamental rights.

CONCLUSIONUltimately in this ephemeral world, what survives for an individual is the Dharma practiced by him during his life time and not anything or anyone else, and therefore everyone should conform to Dharma in day to day life. This aspect is indicated in Shashtra Smriti. When one departs from this world to the other World, neither father nor mother, neither son nor wife will accompany him. Only the "Dharma" practiced by an individual follows him even after death. A person takes birth alone and dies alone, he alone enjoys or suffers the consequences of his evil deeds. Once a person dies, his relatives cremate the body and leave for home. Only the Dharma performed by him during his life time remains with him. Therefore, it is essential that a mall during his life time should conform to Dharma. The above verses indicate that the observance of Dharma by individuals throughout their lives is essential not only for their happiness but also for the happiness of other individuals who constitute the family and society. This means everyone should live without exploiting or harassing others. Every day he should acquire 'Punya' (merit of good deeds) by acting in accordance with Dharma without causing injury or trouble to other living beings. This alone gives real happiness. Man should conform to Dharma and accumulate the merit of good deeds slowly and gradually. The above verses caution every individual not to indulge in securing illegitimate wealth, thinking that he is doing so for the benefit of his family, relatives and friends and points out that if one does so, all of them would only share and enjoy the wealth and property so earned but as far as the consequences of such evil deeds are concerned he alone has to suffer. Similarly, if he conforms to 'Dharma' during his life time, that will remain associated with his name for ever after his death. Thus, 'Dharma' is the everlasting friend. Even if by conforming to Dharma, an individual soughs any inconvenience or hardship still he would be happy because of the satisfaction that he had conformed to Dharma. With the aid of mind a man can uplift himself (by his own good deeds) or can bring about his downfall (by his own miss deeds ). Thus it is the mind of a man which could become either his friend or enemy. How true it is. If man cultivates good thoughts in his mind through good samskara and performs good deeds he uplifts himself. The height of his rise is directly proportional to the good thoughts he has entertained and performed. His down fall is also directly proportional to the sinful thoughts he entertained and indulged in evil deeds. Therefore, realising that in the final stage of life the sole and lone friend of an individual who survives is Dharma, every individual should conform to Dharma in every sphere of his activity. This is the only sure way of securing real success and real happiness in life.

BIBLIOGRAPHY BOOKS: Olivelle, Patrick (2000) Dharma Sutras: The Law Codes of Apastamba, Gautama, Baudhayana, and Vasistha. Delhi: Motilal Banarsidass Publishers Creel, B Austin (1977) Dharma in Hindu Ethics. Calcutta: South Asia Books Singh, Balbir (1981) Dharma: Man, Religion and Society. Atlantic Highlands, New Jersey Humanities Press Inc. Atlantic Highlands New Jersey. S. J. Sekhar, Vincent (2003) Dharma: In early Brahmanic, Buddhist and Jain traditions. Delhi: Sri Satguru Publications. Banerji, Sures Chandra (1962) Dharma Sutras: A Study in Their Origin and Development. WEBSITES: http://www.san.beck.org/EC10-Social.html http://www.hinduwebsite.com/sacredscripts/dharma/apa00.htm http://www.oldandsold.com/articles25/hindu-3.shtml http://www.hindubooks.org/women_in_the_sacredlaws/the_dharma_sutras/page9.htm http://www.sacred-texts.com/hin/sbe14/sbe1403.htm http://www.allstarz.org/religioustext/hin/sla/ http://www.britannica.com/ebi/article-59826