Hindu law: Ancient sources of Hindu law

INTRODUCTION OF THE CONCEPT HINDU LAW:

The concepts of Hindu law are deeply rooted in the Hindu philosophy and religion.  The ancient social structure and its continuation in modern times is, to a great extent, the outcome of the Hindu philosophy and religion.[1] Hindu law has always existed within a broader pluralism of legal systems in India that to a greater or lesser extent overlapped with one another in both form and substance.[2] It is not that Hindu law is the theology of ordinary life for Hindus. It is that the specifically religious foundations of all legal systems can be revealed through an examination of the Hindu legal tradition.[3] However, since Hindu law applies to all those persons who are Hindus, it may apply on the following three categories:

• Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion;
• Any person who is born of Hindu parents, i.e., Hindus by birth; and
• Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law.[4]

HISTORICAL BACKGROUND OF HINDU LAW:

The history of Hindu law is part of the history of law in India and by describing the latter we necessarily comment upon the former as well. The principal legal actors or institutions that occur in the historical record of law in early India are corporate groups, rulers, and, later, temples.[5]

The Hindu legislators were not the kings but the sages, who might be rightly regarded as semi-divine beings on account of their highly philosophical speculation and farsightedness including deep sympathy for social dealings of man with man. It was these leaders of thought who gave the Hindu law as we find embodied in the Dharmasutras, Dharmashastras, the Arthasastra of Kautilya, as elucidated and elaborated by the different Nibandhas and the commentaries of the later epochs.[6] The doctrine of “rule of law” was recognised in ancient India from the very beginning.[7] This was the rule enjoined not only by Kautilya but also more or less by all the writers of the Dharmashastras and Dharmasutras.[8] Hindu law is about 6000 years old.[9] The genesis of this juristic and theological speculations must be sought in the conception of Rita or Natural order presided over by the Vedic Deity Varuna.

• During the first period, i.e., the Hindu period, Hindu law developed quite independently without any extraneous influence in view of peculiar constitution of the Hindu society, which was primarily based on Varna and Asrama.
• In the second period, the growth of Hindu law was arrested, though at the same time, there was hardly any influence of Muslim law upon it. The Hindus were governed by their own laws and that was also in the sphere of civil law. Criminal Law was administered by the Muslim rulers and their officers. The Dharmasutras, the Dharmashastras, the Arthasastra of Kautilya along with the Nibhandhas and the commentaries reveal a state of the society in which the Hindu law was highly developed both in its civil and criminal sides including their substantive as well as adjective aspects.

From the above brief historical sketch, it is quite obvious that originally Hindu law was territorial in character being applicable to all the inhabitants of Aryavarta or India. But after the advent of the Muslims it could no longer claim to be absolutely territorial; it was confined to the community of the Hindus alone. The Hindu law as we have it today in its present form, has considerably secularised, modernised and rationalised the original conception of Hindu law which was essentially religious, sufficiently orthodox and considerably conservative.[10]

SOURCES OF HINDU LAW:

It would be convenient to classify the various sources under the following two heads:

1. Ancient Sources: Under this head fall the following four sources- Sruti, Smriti, Digests and Commentaries and Custom.
2. Modern Sources: Under this head fall the following three sources- Equity, justice and good conscience, Precedent and Legislation.[11]

ANCIENT SOURCES OF HINDU LAW:

1. Sruti: The Hindus believe their laws, both civil and religious, to be founded on revelation, a portion of which has been preserved, as they believe, in the very words revealed, and constitutes the Vedas, and are esteemed by them as sacred writ. They concern religion chiefly, and are termed Sruti, that which is heard or revealed, or traditional law.[12] 'Sruti' means, literally, that which was heard. The Sruti's are believed to contain the very words of the deity , and they include the four Vedas, but they contain very little of law.[13] The term Sruti stands for four Vedas viz., the Rig, the Yajur, the Sama and the Atharva, alongwith their respective Brahmanas. The approximate period of the Vedas is now accepted to be 4000-1000 B.C.[14]
2. Smriti: In principle, the chief source (or “root”, mula) of dharma is supposed to be the sacred words (sruti) of the Veda, in practice the system relies mainly on smriti, the collective remembrance of Vedic dharma embodied in the teachings of the great sages.[15] The Smritis do not give us the earliest stage of the society. As a matter of fact, the Smriti epoch implies a fairly advanced society with considerable progress in diverse ways. So, even prior to the society of the Smriti era, there were other stages of the society, in which customs and practices were growing gradually and imperceptibly to be crystalised only after a considerable length of time.[16] “Smriti” means, literally, that which was remembered. It is the recollection handed down by the Rishis, or sages of antiquity, of the precepts of God. [17]The Smritis constitute the principal source of law.  The Smritis comprise forensic law, or the Dharma Shastra, and are believed to be recorded in the very words of Brahma.  The Smritis are the original text-books of the law.  The law, civil and criminal is to be found in the Smritis.[18]

The source materials for our knowledge of classical Hindu dharma (smriti) are primarily the Dharmasutras and Dharmashastras. Although the latter term is also used collectively for both kinds of texts, the principal difference is that the sutras are older, and composed in the succint and often enigmatic prose style used in many other branches of Hindu learning. The most important Dharmasutras are those attributed to Gautama, Apastamba, Vasistha and Baudhayana. They may have been composed between 600 and 300 BC.[19]

• Gautama: Gautama belonged to the Sama Veda school. Gautama's Dharmasutras is considered to be the oldest of the extant Dharmasutras. Written in prose, it deals extensively with legal and religious matter, inheritance, partition and stridhan.
• Baudhayana: Baudhayana belonged to the Krishna Yajurveda school. The Baudhayana Dharmasutra is not available in its integrated form. Baudhayana deals with numerous subjects, including marriage, sonship, adoption and inheritance.
• Apastamba: Of the extant sutra, Apastamba Dharmasutra is the best preserved one. Apastamba belonged to the Krishna Yajurveda school. He emphasised that the vedas were the source of all knowledge.
• Vasistha: Vasistha is concerned with the Rig veda. He deals with marriage, sonship, adoption, inheritance, sources of law and jurisdiction of courts.
• Vishnu: Vishnu's work, the Vishnu-smriti, is partly in an aphoristic style and partly in verse.  It deals with criminal law, civil law, marriage, sonship, adoption, inheritance, debt, interest, treasure trove, and various other topics.
• Harita: Harita's work is known as Harita-smriti. The work is not available in its original form. The Harita Dharmasutra deals with the source of Dharma, Brahmacharya, Snataks, householder, prohibition about food, impurity on birth and death, duties of husband and wife, etc.[20]

Together with other sutras, such as the Srautasutras, which regulate the most elaborate ritual, the Grhyasutras, which describe the more modest house ritual[21] and Samayacharika, i.e., aphorisms on law and custom dealing with temporal duties of men in their various relations. The Samayacharika is also known as Dharmasutras.[22] According to Kane, dharma in Dharmasastra means, “the privileges, duties and obligations of a man, his standard of conduct as a member of the Aryan community, as a member of one of the castes, as a person in a particular stage of life”.[23] The term Dharma Shastra, literally, teacher of law, comprehends both Srutis and Smritis , but it is often used to designate the Smritis alone. The three principal Smritis are :-

• The Code or Institutes of Manu, compiled some time between 200 B.C. and 200 A.D.
• The Code or Institutes of Yajnavalkya, written about the 4th century, A.D. The Mitakshara is the leading commentary upon this Code.
• The Code or Institutes of Narada, written in 5th or 6th century, A.D.[24]

The Smriti text-books, institutes, or collections attributed to various rishis, are all divided into 3 kandas or sections; the first, Achara, treating of religious ceremonies and daily observances; the second, Vyavahara, of law and the administration of justice; and the third Prayaschitta, relating to penance and expiation.[25] The earliest known commentary on a Dharmasastra root-text is that of Bharuci on the Laws of Manu or possibly Asahaya on the Laws of Narada in the 7th or 8th century AD.

• The Laws of Manu ( c.AD 200) introduced, for the first time, both a new format, namely versified rules, and a host of new topics, especially those pertaining to rulers, into the Dharmasastra tradition.[26] The extant Manusmriti is divided into 12 chapters and contains 2694 slokas. In the 8th Chapter are stated rules on 18 titles of law which include both civil and criminal law. The Manusmriti supplied a long-felt need of a legal treatise which could be a compendium of law. The Manusmriti also gives a vivid idea of the customs of the then society and social and religious observances of the people.[27] Manu, being the protagonist to Brahminical revival, preached orthodox doctrines. He is particularly harsh to women and Sudras. On the Manusmriti, several commentaries have been written. The important ones are: Kullukas's Manvarthamuktavali, Medhatithi's Manubhasya and Govindraja's Manutika.[28]
• Yajnavalkya is second in importance to Manu alone: and, with the commentary, is the leading authority of the Mithila school.[29] Yajnavalkya belonged to the Sukla Yajurveda and is closely connected with the Brihadaranyak Upanishad. The Yajnavalkya Smriti is divided into 3 sections. The Yajnavalkya Smriti deals with rules of procedural law in detail. The approximate date of the Yajnavalkya Smriti is the beginning of the Christian era.  Punishment for various offences prescribed in the Yajnavalkya-smriti is less severe than that prescribed by Manu. Visvarupa, Vijnaneshwara, Aparaka and Shulpani are the most famous commentaries written on the Yajnavalkya Smriti.
• The Naradasmriti is the last of the 3 metrical Dharamshastras whose complete text is available to us. Narada seems to have belonged to Nepal. The approximate date of the work is of 200 A.D. This is the first legal code which is mostly free from moral and religious feelings. Narada deals only with Vyavahara and does not deal with achara and prayaschitta. Naradasmriti is divided into 2 parts. The 1st part deals with judicature and the 2nd part deals with 18 titles of law. The Narada Bhashya is a well known commentary by Ashaya on the Naradasmriti.[30]

Digests and Commentaries: Commentaries (Tika or Bhasya) and Digests (Nibandhs) covered a period of more than 1000 years from 7th century to 1800 A.D.[31] In the first part of the period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.[32]

On Manusmriti -

Medhatilhi has written Manubhasya(895-900 AD)
Govinda Raja has written Manutika (1100 AD)
Kullula Bhatta has written Manavata Muktavali (1250 AD)

On Yajnavalkya Smriti -

Vigneshwara had written the famous commentary Mitakshara (1100 AD)
Visvarupa has returned Balakrida (900 AD)
Aparka had written Aparaditya (12000 AD).[33]

Custom: Customs is the tradition that has been practiced in society since ancient times. It is the type of practice which is under the continuous observation of the people has been followed by the people. Further, the customs have been classified into 2 categories:

1. Legal customs: Legal customs are those customs which are enforceable or sanctioned by law. It can't be deemed invalid until the law itself declares it invalid. There are 2 types of legal customs – Local customs and General customs.
2. Conventional customs: Conventional customs are customs that are related to the incorporation of an agreement and it is conditional.[34]

JUDICIAL PERSPECTIVE OF THE ANCIENT SOURCES OF HINDU LAW:

Judicial Decisions on Hindu law, though sometimes loosely spoken of as a source of law, are not strictly a source of law.[35] The Hindu Law was at first administered by the English Judges with the assistance of Hindu Pundits. The Institution of Pundits, as official referees of the Courts, was abolished in the year 1868.[36] It seems to be forgotten that upon all disputed points of law, the English Judges were merely the mouthpieces of the pundits who were attached to their Courts, and whom they were bound to consult. If, then, the decisions were not in accordance with Hindu law, the fault rested with the pundits, and not with the Judges. Accordingly in many important cases in Borrodaile's Reports, we find that the Court did not merely ask the opinion of their pundits, but took the evidence of the heads of the castes concerned as to their actual usage.[37]

CONCLUSION AND SUGGESTIONS:

To sum up the analysis and to see if any conclusion can be drawn as a result of the study -

1. Hindu law plays a vital role and it govern the hindu's who comes within its ambit in India.
2. The ancient sources of Hindu Law had only its divine nature (Law of God), but now a days its nature has totally changed.
3. Its divine nature has been seized by its interpretation, enacting laws and also by the judicial precedents.
4. By the interpretation of the ancient sources of Hindu Law, its scope has become very wide.

• [1]  I.S.Pawate, “ Daya Vibhaga”, (1975)

• [2]  Timothy Lubin, Donald R. Davis,Jr., and Jayanth K.Krishnan, Hinduism and Law: An Introduction, ( first published 2010), Cambridge University Press.

• [3] Donald R. Davis, JR., The Spirit of HINDU LAW, ( first published 2010), Cambridge University Press,(p.12)

• [4] Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law (Codified and Uncodified), (first edition 1972, 23rd edition,  Allahbad Law Agency2018), p.1

• [5] Supra note 2, p.17

• [6] U.C. Sarkar, “Hindu law: Its Character and Evolution”, (1964), https://www.jstor.org/stable/43949804 , accessed 24 Feb 2020

• [7] Ibid, p.226

• [8] Supra note 6, p.227

• [9] Supra note 4, p.27

• [10] Supra note 6, p.235

• [11] Supra note 4, p.27

• [12] Standish Grove Grady, A MANUAL of HINDU LAW,(first published 1871), Wildy and Sons, Lincoln's Inn Archway, p.1

• [13] Sir Dinshah Fardunji Mulla, Principles of Hindu Law, (first published 1946, 10th edition, The Eastern Law House Ltd.), p.9

• [14] Supra note 4, p. 28

• [15] Supra note 2, p.5

• [16] Supra note 6

• [17] Supra note 13, p.9

• [18] Supra note 12, p.1

• [19] Ludo Rocher, Studies in Hindu Law and Dharmasastra, ( first published 2012), Anthem Press , p.45

• [20] Supra note 4, p.31 and 32

• [21] Supra note 19, p.46

• [22] Supra note 4, p.30

• [23] Supra note 3, p.16

• [24] Supra note 13, p.9

• [25] Supra note 12, p.3

• [26] Supra note 3, p. 15

• [27] Supra note 4, p.33

• [28] ibid, p. 34

• [29] Edward Roer and W.A.Montriou, Hindu Law and Judicature from the DHARMA-SASTRA of YAJNAVALKYA, (first published 1859), R.C.Lepage &Co., p.7

• [30] Supra note 4, p. 36

• [31] 'Sources of Hindu Law', www.legalservicesindia.com/article/329/sources-of-hindu-law.html , accessed 25 February 2020 at 7:30pm

• [32] 'Sources of Hindu Law –Ancient and Modern', https://indianlawnews.wordpress.com/2016/03/21/sources-of-hindu-law-ancient-and-modern/amp/ , accessed 25 February 2020 at 7:35 pm

• [33] 'Sources of Hindu Law', www.srdlawnotes.com/2017/12/sources-of-hindu-law-family-law.html?m=1 , accessed 25 February 2020 at 7:40 pm

• [34] 'Sources and Schools of Hindu Law', https://blog.ipleaders.in/sources-schools-hindu-law/amp/ , accessed 25 February 2020 at 8:15 pm

• [35] Supra note 13, p.10

• [36] Ibid, p.11

• [37] John D. Mayne, A Treatise on Hindu Law and Usage, (first published  JULY 1878, 5th edition), Higginbotham and co. and Stevens and Haynes, p.37