This Article is written by Sanju Jha (pursuing BA LLB from rnb global University Bikaner)
The Hindu system of law has the most ancient of the known system of law. The study of the source of Hindu law is the study of various phases of its development which gave it new drive and vigour, enable it to conform to the changing needs. Originally, it came to subserve the needs of pastoral people and now it has come to subserve the needs of the modern welfare society.
It would be convenient to classify the various sources under the following two heads:
- Ancient Source
- Digests and Commentaries and,
- Modern source
- Equity, justice, and good conscience
- Precedent, and
Hindu law is considered to be a divine law, revealed law. The theory is that some of the Hindu sages had attained great spiritual heights, so much so that they could be in direct communication with God. At some such time, the sacred law was revealed to them by God himself. This revelation is contained in Sruti or Vedas. The word sruti literally means “what was heard”. The Vedas, thus, contains the divine revelation. The term Sruti stands for Vedas viz. the Rig, the Yajur, the Sama and the Atharva, along with their respective Bhramanas. Sruti is considered to be a fundamental source of Hindu law. However, its important source of positive law is doubtful. Brahmins are considered as a guide to Vedas. Some people believe that Vedas contain laws and codes of conduct while others believe that laws have to be inferred from Vedas.
As mentioned before, there are four Vedas, it may be noted that each Veda has 3 parts viz:
- Sanhita(which consist of hymns)
- Brahmin(Which tell us duties and means of performing them)
- Upanishad(Essence of the duties)
Vedas provides rights and duties, Forms of marriage, the requirement of a son, partition, and exclusion of women from inheritance but these can not be regarded as clear-cut laws. Also, society was divided into varnas(Brahmin, Kshatriya, Vaishya, Shudra) and life was divided into various ashrams(Brahamchayra, Grihastha, Vanaprastha, sannyasa).
The concept of karma was also evolved during this time. It was believed that a person will be rewarded as per his karma. Also the concept of ‘moksha’ was prevalent which provided that a person could achieve salvation through knowledge and good deeds. It is assumed that the Vedic period existed between4000 to 1000 BC. During this time various pre smritis and Gathas were composed.
The word Smriti has been derived from ‘smri’ which means ‘to remember. Technically smrities mean those works which are created by the virtue of memory of sages. The basis of smrities is shruties. Smritis can be referred to as a step ahead of smrities.
There are two types of smritiesvizDharamsutras and Dharmashastras. There is a very thin line of difference between the two. The basic difference lies in the fact that dharamsutras are written in the form of prose, in short maxims while dharamshastras are written in the form of shlokas(poetry). There are many Smriti writers and it is impossible to determine how many authors are there of smrities. However, there are some notable Smriti writers, enumerated by yajanvalkya are Manu, Attri, Vishnu, Harita, Yama, katyana, Brihaspati, Parashar, Vyas, etc.
The rules laid down by smritis can be laid down into the following categories:
- Achar(relating to conduct and morality)
- Vyavahar( Substantive rules which a king should follow)
- Prayaschitta( penal provision for the commission of wrong)
Digests and commentaries:-
Digests and commentaries came after smrities during the 7th century to 1800 A.D. During earlier stages commentaries were based on smrities but in the later period, the works were like digests containing various smrities and explaining and reconciling various contradictions.
The evolution of different schools of Hindu law is a result of these digests and commentaries as these digests and commentaries are interpretations of the Smriti and hence the difference of opinion is bound to occur. Owing to this reason, different schools of Hindu law emerged. It was only after 200 AD, most of the work was done only on the existing material given in Smrtis. The work done to explain a particular Smriti is called a commentary. Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smritis. Some of the prominent commentaries include Manubhashya, Manutika, and Mitakshra. One of the most important digests is Jimutvahan’sDayabhaga which is applicable in Orissa and Bengal.
Mitakshara is one of well known and supreme sources of law in India. It is based on the commentaries written by Vijayneshwara on the code of yajanvalkyawhile Dayabhaga law school is based on the commentaries of Jimutvahana. Dayabhaga and Mitaksara are two main sources of Hindu law in India.
The main objective of these texts is to gather the scattered material available in the form of smrities and shruties and to compile it in a more comprehensive form for the betterment of society. Thus, these were much logical and to the point in their approach.
Customs and usages:-
Custom can be defined as those crystallized practices which are followed by a community or group of people for a considerable period, which now has become a governing norm in that particular society or community. It means those established practices are being followed for a considerable period.Custom is also a principal source of law and its position is next to shruties and smritis. It is superior to written law. Most Hindu law is based on the customs and it is recognized as a legit means of a source of law even in smritis also.
Customs can be classified into 4 types:
- Local customs: These customs are followed in a particular geographical area and its application is limited to that particular area only. For example in Rajasthan, there was a custom of child marriage prevalent.
- Caste and community customs: These customs prevail in a certain community of people and the people of that particular community follow the custom. For example in Sikhs, marriage is solemnized by AnandKarz.
- Family customs: It refers to customs that exist in a particular family. They can be easily abandoned as compared to other forms of customs.
- Guild customs: These customs are followed by a certain group of traders.
The words customs and usages are often used interchangeably but there is some sort of distinction between the two. Usage is the repetition of acts while custom is a law or general rule that arises from such repetition. A usage may exist without custom but custom can never exist without usage. Usage derives its authority from the parties to the transaction but custom where existing is binding on the parties.
Equity, justice, and a good conscience:-
Equity means being fair and implies fairness in dealing. Impartiality is the main attribute of modern judicial systems. True justice can be delivered through equity and good conscience. Where no rule is given, unreasonableness would prevail.
Sometimes it happens when a problem comes before the court for resolution, it cannot be settled by prevailing laws. Such a situation may be rare but might occur. In such a situation, courts cannot refuse to provide a remedy, and also they are under obligation to decide such a case. In such cases, the courts are guided by the principle of reasonableness, basic values, and fair play.
So this principle is known as equity, justice, and a good conscience and it is also known as Natural law. This principle of natural law was prevalent in India since the British era.
So wherever conflict arises in the interpretation of Hindu law this principle is used by the courts either to formulate a new law or to carry forward existing laws.
The doctrine of stare decisis started in India from British rule. All cases are now recorded and new cases are decided based on existing case laws.
After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.
Precedent is called to be a source of Hindu law in two senses –
First – practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the source is not necessary. Reference to a leading decision is enough.
Secondly, – Precedent is a source of law in the sense that by the purpose of judicial interpretation, doctrines, principles, and rules of law stand modified or altogether new principles, doctrines, and rules have been introduced in the body of Hindu law. For these principle doctrines and rules, the sources of authority are precedent.
The legislation is an act of parliament that plays an important role in the formation of Hindu law. The legislation is often regarded as a tool for social change. The legislation provides a base and authenticity to the laws. After the independence of India, there has been a steep increase in legislation regarding the codification of personal laws.
After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application.
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs of society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.
Examples of legislations include the Hindu marriage act,1955, Hindu succession Act, Hindu minority and guardianship act, Hindu adoption and maintenance act, etc
Also, most of the Hindu laws have now been codified as mentioned in the beginning.
In this way, various sources cumulate and unite in one to form a wide and dynamic Hindu law.