State and Explain the sources of Hindu Law { 2001 JCJ QUASTION }

Source:

Source is derived from Latin word sourdre, it means to rise, spring out. So, source is a thing that you get something from.

Sources of Hindu Dharma/Law:

Hindu law is about 6,000 years old and the study of the sources of Hindu law is the study of its various phases of development to meet the changing needs.

The sources of Hindu law may be classified as under:

1) Ancient Sources and

2) Modern Sources

1. Ancient Sources:

a) Sruti/religious texts (indications later developed into law)

b) Dharmasastras

i) Dharma Sutras

ii) Smritis

c) Commentaries and digests/Nibhandas

d) Custom [ or Sadachara ]

a) Sruti

Sruti means, literally, that which was heard. It is derived from the root 'Sru'(to hear). That is, Sruti means that which was heard and handed down from generation to generation verbally.

The source of Srutis was believed to be divine. It is believed to contain the very words of the God revealed to inspired sages. In theory, Srutis are considered to be the primary and paramount sources of Hindu law. It was an article of belief with the ancient Hindu that His law was revelation, immutable and eternal. It was the fountainhead of His law and supreme to the early Hindu. Practically however the Sruti has little or no legal value. It contains no statements of law as such.

The Sruti consist of four Vedas and the Upanishads dealing chiefly with religious rites and the means of attaining true knowledge and Moksha/salvation.

The four Vedas are Rig Veda, Yajur Veda, Sama Veda and Atharva Veda. The Vedangas or appendices/auxiliary works to the Vedas came into existence in the post-Vedic period and they are six in number: Siksha, Chandas, Vyakarana, Nyrukta, Jyotishya, Kalpa.

The Upanishads are denominated as the Vedanta or the concluding portion of the Vedas and embody the highest principles of Hindu religion and philosophy. The 18 Upanishads are considered as part of-and supplement to-the respective Vedas.

The Vedas and Upanishads and other texts which together constitute the Sruti are mainly religious books. There are no special chapters pertaining to law or provisions dealing with law directly. But, they are considered as a source of Dharma because of the indications available therein such as positive or negative injunctions i.e., Vidhis

or Nishedhas examples of Vidhis being Tell the truth, Never tell untruth, Never hurt anyone, Follow Dharma, Treat your mother and father as God, Perform only such acts which are not forbidden.

For instance, there are provisions in the Smritis for punishing plaintiff, defendant and witnesses for giving false evidence which have their source in the first two Vidhis mentioned above.

b) Dharmasastra

To meet the requirement of a changing society, laws and treatises regulating the rights and liabilities of individuals inter se as also between the king and his subjects were written which came to be known as Dharma Sutras and Smritis. Some of them were in the form of Sutras (aphorisms - a short phrase that contains a wise idea) or strings of rules/aphorisms chiefly in prose which formed rather a memoria technica by which the substance of the oral lessons might be recalled than a regular treatise on the subject and therefore came to be called Dharma Sutras and others were in the form of slokas (verses). All this literature is collectively called Dharmasastra.

i) Dharma Sutras

The works earlier to Dharmasastras which laid down the law in the form of Sutras are divided into three classes:

a) Srauta Sutras, which regulated the rituals

b) Grihya Sutras, which regulated matters relating to family life

c) Dharma Sutras dealing with civil and criminal law.

The Sutras of the aforesaid first two categories regulated religious rituals and personal code of conduct at different states of life. The third category of Sutras which deal with forensic law constitutes the foundation of Hindu legal system and they are only relevant to the subject of Indian legal history.

The important Dharma Sutras which were considered as of high autority were of Gautama, Baudhayana, Apastamba, Harita, Vasista and Vishnu.

These Dharma Sutras therefore can be regarded as the earliest works of Hindu legal system.

ii) Smritis

The next and the most important authoritative source of Hindu legal literature is found in the Smritis. Smriti is a Sanskrit word, from the root Smara which means remembrance, reminiscence, thinking of or upon calling to mind or simply memory. The Sruti was accepted as the original utterings of the great power. The Smritis is the recollection handed down by the Rishis or sages of antiquity and proclaimed their recollections and hence is of human origin.

The Smriti are found on examination to fall under two heads, viz., works written in prose or in prose and verse mixed, and works written wholly in verse. The latter class of writings being fuller and clearer are generally meant when the term Smriti is used, but it properly includes both classes.

The compilation of the Smritis resembles the modern method of codification. All the legal principles here and there scattered in the Vedas and also those included in the Dharma Sutras as well as the custom or usage which came to be practised and accepted by the society were collected together and arranged subject-wise in a systematic manner. The Smritis also dwelt with the constitution and gradation of courts, appointment of judges, their qualification as also the procedural law for the

enforcement of substantive law. They disclose a well developed legal and judicial system.

The important Smritis are: Manu, Yajnavalkya, Narada, Parashara, Brihaspati, Katyayana.

Theoretically, if a text of the Smriti conflicted with any Vedic text, it had to be disregarded: According to Vyasa - Where there is conflict between Sruti (Vedas), Smritis and Puranas then what is stated in the Sruti should be taken as authority.

According to Yajnavalkya, where two Smritis conflict, principles of equity as determined by popular usages shall prevail.

Mimamsa/Interpretation:

As the Vedas, Dharma Sutras and Smritis were considered as the law in ecclesiastical matters as well as in the field of forensic law, the adoption of the art of Mimamsa became inevitable to understand the real meaning of the provisions of those authoritative texts. First, it was used for interpretation of short and cryptic sentences of religious injunctions and later came to be adopted by commentators of Dharmasutras and Smritis for interpretation of provisions of civil and criminal law.

Purva Mimamsa by Jaimini and its celebrated commentary by Sabaraswami and Tantra Vartika by Kumarila Bhatta constitute valuable source of rules of interpretation of laws.

c) Commentaries and Digests/Nibhandas

The codification of Smritis in the form of verses were difficult to understand and apparently contained a few conflicting provisions. The development of Mimamsa gave scope to eminent jurists to contribute to the further development of law to suit the changing needs of the society which made the Smritis law practical, understandable and workable by reconciling the conflicting principles and even modified and supplemented the rules of the Smritis by their own forceful reasoning or by referring to the usages that had developed and acted upon by the society.

The practice of writing commentary on a particular Smriti gave way to a different trend of writing Commentary on different Smritis together and this type of work came to be known as Digests/Nibhandas.

While there are numerous Commentaries and Digests/Nibhandas, a few important ones that have been accepted and followed by the society and enforced by the courts are Mitakshara, Dayabhaga, Smritichandrika, Vivada Ratnakara, etc.

And, while the Dharmasastras and Smritis remained the basic law, the commentaries on the ancient texts became the contemporary law because they embodied the accepted usages and customs in force at the time when the respective commentaries were written and the Privy Council ruled that the Court should recognise the law as interpreted by commentators even if such an interpretation was contrary to the wordings of the provisions in the Smritis .

The authority of the several commentators varied in different districts and thus arose the schools of law which are operative in different parts of India.

The Yagnavalka Smriti is commented upon by Vigneswara which has later become the Mitakshara School of Hindu law. The same Smriti was also commented upon by Jimutavahana which later became the Dayabhaga School of Hindu law.

Mitakshara School is followed all over India except in Bengal and Assam while Dayabhaga School is followed primarily in Bengal and Assam.

d) Custom and usage

What is a Custom?

In Harprasad vs. Sheo Dayal, the Privy Council has held that a custom is a rule which in a particular family or a particular caste or community or in a particular religion has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in the derogation of general rules of law must be construed strictly.

By virtue of the specific provisions of the Smritis indicating that sadachara (usage or custom) approved by the society as one of the sources of law, immemorial customs acquired the force of law. Consequently, customs and usages formed one of the dominating factors in the evolution of the Hindu legal system. This position was recognised by the Privy Council as early as in the year 1868 [ in Collector of Madura vs. Moottoo Ramalinga ]. The Judicial Committee of the Privy Council declared that under the Hindu system of law clear proof of usage would outweigh the written text of the law.

Essentials of a valid custom:

But, before giving any particular custom an overriding effect above the written law, the custom must

(i) Be ancient

(ii) Be reasonable and not opposed to public policy

Ex: A temple dancing girl is allowed to adopt a girl with the intention of training her up is invalid in an immoral profession.

Ex: Prostitutes cannot adopt a girl child for the same purpose.

(iii) Be certain in its nature

(iv) Have been continued without interruption

(v) Have been practised or followed by persons in any particular locality or by a group of persons and

(vi) Be uniform and obligatory

If these conditions are proved by clear and unambiguous evidence in respect of any custom pleaded by a party, the courts can give effect to it. [ Raja Rup Singh vs. Rani Baisni, (1884) 11 IA 149, 152 ]

After the law making process was started by the Indian legislatures, a further restriction on the validity of customary law has been that custom should not be opposed to any statute.

In Laxmibai vs. Bhagwant Buva, (AIR 2013 SC 1204), the Hon’ble Supreme Court has held that custom has the effect of modifying general personal law but it does not override statutory law unless the custom is expressly saved by it.

Kinds / Types of Customs:

There are 3 divisions of customs generally recognized by Hindu law. They are -

a) Local custom

b) Class custom

c) Family custom

a) Local custom:

Such customs belong to some particular locality or district and they are binding on the inhabitants of such place.

b) Class custom:

Such customs are of a caste or of a sect or of the followers of a particular profession or occupation such as agriculture, trade, mechanical art and the like.

c) Family custom:

Such customs relate to a particular family particularly concerning succession to an impartible Raj or succession to Maths or religious foundations.

2. Modern Sources:

The various modern sources are as follows -

a) Justice, Equity and Good Conscience

b) Precedent (and Judicial decisions)

c) Legislation

a) Justice, Equity and Good Conscience

It was maintained even under Smritis that one’s own satisfaction to the source of Dharma. It was also ordained that any decision should be arrived based upon Yukti (reason) or Nyaya (justice). These aspects amply cover under Ancient law the modern concept of justice, equity and good conscience.

The Common Law tradition of applying the principle of justice, equity and good conscience when th law is silent on a given point/inadequacy of law was conveniently applied by the Britishers in their administration of justice in India.

Afterwards, the Supreme Court of India recognised that in the absence of any rule of Hindu Law, the Courts have authority to decide cases on the principle of justice, equity and good conscience. (Gurunatha vs. Kamala Bai, 1951 (1) SCR 1135)

Equity as a branch of legal system may be said to mean the principles or rules emerging in the course of administration of justice particularly in those cases where on account of inadequacy of law the judges evolve certain general principles on the basis of justness, fairness and propriety.

In India the origin of equity is traced back to the Hindu period when jurists explained the old laws and gave new rules of interpretation.

In Saraswathi vs. Jagadambal, (AIR 1953 SC 201), the Hon’ble Supreme Court has held that - where there is no rule of Hindu law and no proof of existence of any custom, rules of justice, equity and good conscience will apply.

b) Precedent as a source of Hindu law: - is a long line of decisions, ratio of judgment

Binding nature of previous judicial decisions on a subsequent similar case is of modern origin and came into vogue during British period. The Privy Council expounded and evolved the principles and rules on varied complex and complicated subjects of Hindu law through their decisions. This had facilitated easy understanding and ascertainment of principles of Hindu law without referring to complicated scriptural source and has given scope for adapting new suitable principles of Hindu law from relevant British concepts and doctrines. The principle of Stare Decisis is applied by the Indian Courts. Stare Decisis is the doctrine of

precedent under which it is necessary for a court to follow earlier judicial decisions when some points arise again in litigation. The decisions of the SC are binding upon all courts except upon itself and of the HC on all of the subordinate Courts.

c) Judicial decisions - can be followed the very next day

A large number of decisions have now piled up on almost every point of law which have superseded the law laid down in commentaries on several front. The decisions of Privy Council in several areas of Hindu law where the Supreme Court has not given its pronouncements are taken to be still binding.

The Hon’ble Supreme Court has observed that judicial decisions on Hindu law are sometimes spoken of as a source of law. (Saraswathi vs. Jagadambal reported in AIR 1953 SC 201).

The decisions of the Privy Council and the Supreme Court are binding on all the courts of India including the High Courts, but the decisions of any one High Court are not binding on any other High Court though they are binding on the courts subordinate thereto. (Check - Amritlal vs. Jayantilal, AIR 1960 SC 964)

d) Legislation

Legislation is a vital source of modern Hindu law and has been an important factor in the development of Hindu law. Most of them are in the direction of reforming Hindu law and some of them supersedes Hindu law. These legislations have not only brought in profound changes in the ancient Hindu law but also have made the law certain and definite.

An example is of The Caste Disabilities Removal Act, 1850 under which a person renouncing his religion or losing his caste is not deprived of his rights of inheritance under the Act.

Yet Another example is The Transfer of Property Act, 1882 which has superseded the Hindu law relating to transfer of property.