The phrase “source of law” has several connotations. It may be the authority which issues rules of conduct which are recognized by Courts as binding. In this context, ‘source of law’ means ‘the maker of law’. It may mean the social conditions which inspires the making of law for the governance of the conditions. In this context it means ’cause of law’. It may also mean in its literal sense the material from which the rules and laws are known. In this sense the expression means the ‘evidence of law’ and it is in this sense that the expression ‘source of law’ is accepted in Jurisprudence.
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Vijnaneshwar (commentator on the Yajnavalkya Smriti and founder of Mitakshara School) has called it Jnapak Hetu i.e., the means of knowing law. It is important to study the sources of law because in every personal legal system only that rule is law which has place in its sources. A rule not laid down or not recognized in the sources is not a rule in that legal system.
The word ‘Hindu’ first appeared in the Old Persian language which was derived from the Sanskrit word Sindhu, the historic local designation for the Indus River in the north-western part of the Indian subcontinent. A Hindu is an adherent of Hinduism.
Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.). It is not Hindus alone who must follow Hindu law but there are several other communities and religious denominations that are subject to its dominion such as Jains, Buddhists, Sikhs, Brahmo-Samajists, Prarthana-Samajists, the Virashaivas and Lingayats and the Santhals of Chhota Nagpur besides others.
In Sir Dinshah F.Mulla’s ‘Principles of Hindu Law’, the learned editor has defined ‘Hindu law’ in the following words: “Wherever the laws of India admit operation of a personal law, the rights and obligations of a Hindu are determined by Hindu law, i.e. his traditional law, sometimes called the law of his religion, subject to the exception that any part of that law may be modified or abrogated by statute.” Law as understood by Hindus is a branch of dharma.
Nature and scope: In the article project, the scope will be restricted to finding out the sources of Hindu law, and critique on some of the definitional aspects of the sources and a general critique of the sources.
Sources of Hindu Law
The sources of Hindu law can be classified under the following two heads:
Under this would come the following:
Digests and Commentaries and
Under this head would come:
Justice, equity and good conscience
It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.
The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).
Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.
The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea whereby they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis but they are human works.
There are two kinds of Smritis viz. Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc.
The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).
Digests and Commentaries-
After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. 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.
The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.
Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.
Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-
The custom must be ancient. The particular usage must have been practised for a long time and accepted by common consent as a governing rule of a particular society.
The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and
The custom must have been continuously and uniformly followed for a long time.
Indian Courts recognize three types of customs viz: (a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality. (b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free to marry again during the life-time of the husband. (c) Family custom – these are customs which are binding upon the members of a family. Eg. There is a custom in families of ancient India that the eldest male member of the family shall inherit the estates.
Justice, equity and good conscience-
Occasionally it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it.
The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fairplay and propriety.
In terminology, this is known as principles of justice, equity and good conscience. They may also be termed as Natural law. This principle in our country has enjoyed the status of a source of law since the 18th century when the British administration made it clear that in the absence of a rule, the above principle shall be applied.
Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.
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.
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 decisions of Privy Council are binding on all the lower Courts in India except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.
A Critique on the Sources
It is significant to note that the term ‘Hindu’ is not defined anywhere in terms of religion or in any statute or judicial decisions. For the purpose of determining to whom Hindu Law applies, it is necessary to know who is a Hindu and none of the sources expressly state so. At most from statutes, we can get a negative definition of a Hindu which states that Hindu law shall apply to those who are not Muslim, Christian, Parsi, Jew, etc. and who are not governed by any other law.
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Hindu Law is considered to be divine law as it is strongly believed that the sages had attained some spiritual dominion and they could communicate directly with God form whom we get the divine law. But this is only an assumption and no concrete proof for the same is shown that the sages could communicate with God (whose very existence is challenged by atheists). Due to this, many communities are also suffering from the misapprehension or delusion that their forefathers and messiahs had revelations from God.
Justice A.M.Bhattacharjee strongly states that according to him he cannot think that “even a staunch believer in any divine existence, transcendent or immanent, can believe in the ‘divine origin’ of Hindu law, unless he has a motive behind such profession of belief or has not read the Smritis or is ready to believe anything and everything with slavish infidelity.”
According to Justice Markandey Katju, Hindu law does not originate from the Vedas (also called Shruti). He vehemently asserts that there are many who propound that Hindu law originated from the Shrutis but this is a fiction and in fact Hindu law originated from the Smriti books which contained writings from Sanskrit scholars in ancient time who had specialized in law.
The Shrutis hardly consist of any law and the writings ordained in the Smriti do not make any clear-cut distinction between rules of law and rules of morality or religion. In most of the manuscripts, the ethical, moral and legal principles are woven into one. It is perhaps for this reason that according to Hindu tradition, law did not mean only in the Austinian sense of jurisprudence and is objectionable to it; and the word used in place of ‘law’ was the Sanskrit word ‘dharma’ which connotes religion as well as duty.
Although Dharmasutras dealt with law, they did not provide an anthology of law dealing with all the branches of law. The Manusmriti supplied a much needed legal exposition which could be a compendium of law. But according to Kane, “It is almost impossible to say who composed the Manusmriti.” The very existence of Manu is regarded to be a myth by many and he is termed as a mythological character.
Many critics assert that the word Smriti itself means that what is remembered and therefore the validity or proof of the existing Smritis could be challenged. It cannot be said for certainty that what the sages remembered was actually what was propounded.
Hindu law has generally been critiqued on the grounds that the Smritis and other customs were generally extremely orthodox and against the favours of women. Hindu society thus has always been a patriarchal society and women have always received subdued importance over men. Some also disapprove of the notions of caste-based system created by ancient Hindu law from which emerged the ill-perceived practices of untouchability, etc.
The Smritis are admitted to possess independent authority but while their authority is beyond dispute, their meanings are open to various interpretations and has been and is the subject of much dispute. Till date, no one can say for sure the exact amount of Smritis which exist under Hindu law. It is due to the abovementioned problems that the digest and commentaries were established and various schools of Hindu law started to give birth.
The modern sources of Hindu law such as Justice, equity and good conscience have been critiqued on the grounds that it paves the way for personal opinions and beliefs of judges to be made into law. We have seen catena of cases where the decisions of the Court have been criticised for want of proper reasoning. This also signifies the incompleteness of the laws which exist.
The Supreme Court in most matters has ascertained the rules of Hindu law successfully but there are couple of cases where they have interpreted the rules in their own light. One of the gravest cases of the Supreme Court which deserves much criticism is the case of Krishna Singh v. Mathura Ahir. The Allahabad High Court had rightly held that the discriminatory ban imposed on the Sudras by the Smritis stands abrogated as it contravenes the Fundamental Rights guaranteed by the Constitution.
However, the Supreme Court contradicted the above view and held that “Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties one cannot introduce his own concepts of modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law….except where such law is altered by any usage or custom or is modified or abrogated by statute.”
It can be submitted with ease that the above view is contrary to all Constitutional theories and is expressly in contradiction with Article 13. It is shocking to note that this judgment is yet to be over-ruled in express terms.
Since the aegis of time, Hindu law has been reformed and modified to some extent through legislations but these reforms have been half-hearted and fragmentary. The problem with fragmentary reforms is that though reforms were made to change some aspects, their implications on other aspects were over-looked. For example, the Hindu Women’s Right to Property Act, 1937, was passed with a view to granting property rights to women but its repercussions on the law of joint family was over-looked. The result was that fragmentary reforms through legislations solved some problems but resulted in others.
Many people make the mistake of considering various text books written by erudite scholars as sources of Hindu law. This is because the Courts have decided many cases relying on these text books and quoted them for reference. For example, Mulla’s Hindu Law has been quoted by many judges. In Bishundeo v. Seogani Rai, Justice Bose giving the majority judgment stated that “The rule laid down in Mulla’s book is expressly stated to be in cases where the position is not effected by a decree of a competent Court.” The same has been the case with many other text books. It should be made clear that text books are not sources of Hindu law and the authors have no authority to lay down the law.
It has been seen that Hindu law has been critiqued for its orthodoxy, patriarchal character and does not bear a very modern outlook of society. There are many areas where the Hindu law needs to upgrade itself, for example, the irretrievable breakdown theory as a valid ground for divorce is still not recognised under the Hindu Marriage Act, 1955, and even the of Supreme Court have expressed their concern on this.
The most valid concern is that the very definition of a ‘Hindu’ is still not given in any of the sources. Statutes give only a negative definition which does not suffice the test of time. The very proponent that Hindu law is divine law has been challenged by scholars and atheists.
There are many Smritis which are yet to be found according to Historians and many conflicts of opinions and interpretations have arisen for the existing ones, thus creating a window of ambiguity under Hindu law. There are also several areas where Hindu law is silent.
Most of the ancient sources of Hindu law is written in Sanskrit and it is well known that in the present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the ancient sources since the time the modern sources have emerged and been followed.
It can be said that proper codification of Hindu law without room for ambiguity is the need of the hour. It can be said that where the present sources of Hindu law are uninviting the Legislature could look into sources and customs of other religions and incorporate them into Hindu law if it caters to the need of the society and meets the test of time.
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