Hindu law
Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world, beginning three thousand years ago, and is based on the Hindu texts.
Hindu tradition,in its surviving ancient texts, does not universally express the law in the canonical sense of ius or of lex. The ancient term in Indian texts is Dharma, which means more than a code of law, though collections of legal maxims were compiled into works such as the Nāradasmṛti. The term "Hindu law" is a colonial construction, and emerged after the colonial rule arrived in Indian subcontinent, and when in 1772 it was decided by British colonial officials, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under "Muslim law".
The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises on Dharma. The British, however, mistook the Dharmaśāstra as codes of law and failed to recognise that these Sanskrit texts were not used as statements of positive law until the British colonial officials chose to do so. Rather, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such. Scholars have also questioned the authenticity and the corruption in the Manusmriti manuscript used to derive the colonial era Hindu law.
In colonial history context, the construction and implementation of Hindu law and Islamic law was an attempt at "legal pluralism" during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant. Legal scholars state that this divided the Indian society, and that Indian law and politics have ever since vacillated between "legal pluralism – the notion that religion is the basic unit of society and different religions must have different legal rights and obligations" and "legal universalism – the notion that individuals are the basic unit of society and all citizens must have uniform legal rights and obligations".
Terminology and nomenclature
In Hinduism, law is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta, the order that makes life and the universe possible, and includes duties, rights, laws, conduct, virtues and ‘'right way of living'’. The concept of Dharma includes Hindu law.In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya, in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows:
Related terms
In ancient Hindu jurisprudence texts, a number of Sanskrit words refer to aspects of law. Some of these include Niyama, Nyaya, Yuktata, Samya, Vidhi, Vyavastha, Sambhasa, Prasamvida-patra, Vivadayati, Adhivakta, Nyayavadi, Nyayavadini, Nyayadata, Danda, among others.Classical Hindu law
John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence. Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex. The term "Hindu law" is a colonial construction, and emerged when the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials in consultation with Mughal rulers, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under sharia. However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher.
Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India. They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society. Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India. However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice". A few scholars have suggested that the Dharma-related Smritis such as Manusmriti, Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found.
Classical Hindu law, states Donald Davis, "represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles."
In South India, temples were intimately involved in the administration of law.
Cited texts
Unlike the Bible & Quran, the Vedas don't discuss about societal matters directly. Classical Hindu law is derived from the following sources''Dharmasutra''
As a part of the Kalpa texts within the Vedanga corpus of literature, they deal with personal conduct & social regulations in accordance to the principles of the Vedas. The texts are| Veda | Dharmasutra |
| Rigveda | Vasistha Dharmasutra |
| Samaveda | Gautama Dharmasutra |
| Krishna Yajurveda | Apastambha Dharmasutra Harita Dharmasutra Hiranyakesi Dharmasutra Vaikhanasa Dharmasutra Vishnu Dharmasutra |
| Sukla Yajurveda | Sankha-Likhita Dharmasutra |
| Atharvaveda | Aushanasa Dharmasutra |
''Dharmashastra''
These texts, whose authorships are traditionally attributed to the Vedic sages, elaborate the topics discussed in the dharmasutras.Dharmashastras available in printed format are
- Angirasa smriti
- Atri smriti
- Apastambha smriti
- Aushanasa smriti
- Brihaspati smriti
- Brihat Parashara smriti
- Daksha smriti
- Devala smriti
- Gobhila smriti
- Gautama smriti
- Harita smriti
- Katyayana smriti
- Kashyapa smriti
- Laghu Atri smriti
- Laghu Harita smriti
- Laghu Vishnu smriti
- Laghu Shankha smriti
- Likhita smriti
- Manu smriti
- Narada smriti
- Parashara smriti
- Prajapati smriti
- Samvarta smriti
- Shankha smriti
- Shankha-Likhita smriti
- Shatatapa smriti
- Vasistha smriti
- Vyasa smriti
- Vishnu smriti
- Vriddha Atreya smriti
- Yajnavalkya smriti
- Yama smriti
- Budha smriti
- Chhagaleya smriti
- Cyavana smriti
- Jamadagni smriti
- Jabala smriti
- Marichi smriti
- Prachetas smriti
- Pitamaha smriti
- Paithinasi smriti
- Rishyasringa smriti
- Sumantu smriti
- Shaunaka smriti
- Vishwamitra smriti
Commentaries
''Nibandha''s
Digests & compendiums composed by various scholars attempt to resolve difference of opinion on similar topics among the various texts & authors.Regional variations
In the Collector of Madhura Vs Mottoo Ramalinga Sathupathy case, the Privy Council observed that there was no uniformity in the observance of Hindu law by Hindus throughout the realm. The court observed that- On the basis of adherence to property law, Hindus are divided into 2 schools –
- the Dayabhaga school, observed by Hindus in Bengal & Assam,
- the Mitakshara school observed by all other Hindu communities of the Indian subcontinent.
- The Mitakshara school is subdivided into
- The Benaras school which cites the Viramitrodaya of Mitra Mishra, Nirnayasindhu & Vivadatandava of, Dattakamimasa of Nanda Pandita, Subodhini & Balambhatti commentaries of the Mitakshara as authority and is observed by Hindus of United Provinces, Central Provinces & Odisha.
- The Mithila school which cites Vivadachintamani of Vachaspati Mishra, Vivadaratnakara of Chandeshvara Thakura, Vivadachandra of Misaru Mishra, Smrityarthasara of Sridhara & Madanaparijata of Vishveshvara Bhatta as authority & is observed by Hindus of Mithila
- The Dravida school which cites Smritichandrika of Devanna Bhatta, Parasharamadhaviya, Sarasvativilasa of Prataparudra Deva, Viramitrodaya, Vyavaharanirnaya of Varadaraja, Dattakachandrika of Devanna Bhatta, Nirnayasindhu, Vivadatandava, Dayavibhaga of Kamalakara Bhatta & Keshavavaijayanti as authority & is observed by Hindus of Madras Presidency.
- The Maratha School which cites Vyavaharamayukha of Nilakantha Bhatta, Smritikaustubha of Ananta Deva, Viramitrodaya, Nirnayasindhu, Vivadatandava & Parasharamadhaviya as authority and is observed by Hindus of Bombay Presidency.
- The Punjab school which cites Nirnayasindhu, Viramitrodaya & local customs as authority and is observed by Hindus of Punjab. Kashmiri Hindus additionally cite the Apararkachandrika
- The Dayabhaga school cites Viramitrodaya & Dattakachandrika as authority. Bengali Hindus additionally cite the Smrititattva of Raghunandana & works of Bengali pandits like Halayudha, Bhavadeva Bhatta & Shulapani while Assamese Hindus cite the works of Pitambara Siddhantavagisha & other pandits from the Kamarupa like Damodara Mishra & Nilambaracharya
- The Mitakshara doesn't allows partition of ancestral property among coparceners, while the Dayabhaga does.
- The Mitakshara completely bars women & their descendants from inheriting ancestral property, however the Dayabhaga allows childless widows to inherit property of their sonless fathers & childless husbands.
- According to Mitakshara, right of inheritance is vested by birth, hence the son is a coparcener to ancestral property from the day of his birth. However, in Dayabhaga, right of inheritance is vested by the right to offer pinda at sraddha ceremony, hence the son has no ownership on ancestral property during his father's lifetime.
Lawyers in classical Hindu Law
Punishment in classical Hindu Law
Ancient texts of the Hindu tradition formulate and articulate punishment. These texts from the last 2500 years, states Terence Day, imply or recognize key elements in their theories of fair punishment: the texts set a standard of Right, in order to define a violation that warrants punishment; they discuss the possibility of a violation thereby defining a wrongdoing; they discuss a theory of responsibility and assignability of a wrongdoing; the texts discuss degrees of guilt, and therewith the form and severity of punishment must match the transgression; they discuss approved and authorized forms of punishments and how these may be properly administered. The goal of punishment, in Hindu law, has been retributive and reformative. Hindu law, states Sarkar, developed the theory of punishment from its foundational theory of what it believed was necessary for the prosperity of the individual and a collection of individuals, of state and non-state.There are wide variations in the statement of crime and associated punishment in different texts. Some texts for example discuss punishment for crimes such as murder, without mentioning the gender, class or caste of the plaintiff or defendant, while some discuss and differentiate the crime based on gender, class or caste. It is unclear, states Terence Day, whether these were part of the original, because the stylistic, structural and substantive evidence such as inconsistencies between versions of different manuscripts of the same text suggest changes and corruption of the original texts.
Outside India
Ancient Hindu legal texts and traditions arrived in parts of Southeast Asia as trade grew and as part of a larger culture sharing in ancient Asia. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts as well as legal records embodied in stone and copper-plate inscriptions.Anglo-Hindu law
As East India Company obtained political and administrative powers, in parts of India, in the late 18th century, it was faced with various state responsibilities such as legislative and judiciary functions. The East India Company desired a means to establish and maintain the rule of law, and property rights, in a stable political environment, to expedite trade, and with minimal expensive military engagement. To this end the Company pursued a path of least resistance, relying upon local intermediaries that were mostly Muslims and some Hindus in various Indian states. The British exercised power by avoiding interference and adapting to local law practices, as explained by the local intermediaries. The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century. The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa 'Alamgiri. For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable. The British colonial officials, for practice, attempted to extract from the Dharmaśāstra the English categories of law and religion for the purposes of colonial administration.
The early period of Anglo-Hindu Law was structured along the lines of Muslim law practice. It included the extracted portions of law from a single Dharmaśāstra text translated into English by British colonial government appointed scholars in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri. It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis for interpreting the Islamic law. The Calcutta Sanskrit College was established to train court pandits, the Calcutta Madrassah to train court qadis & Fort William College to train the British judges in Indian law.
The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much negative public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay. The resulting codification of Hindu law by the British authorities in their attempt to create a homogeneous, uniform & consistent legal corpus was characterised by increasing importance of the authority of 'canonical' scripture over tradition & unrecorded customary law in vogue amongst various groups, in accordance to the sola scriptura doctrine
Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828 and 1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance. In 1832, the British colonial government abolished accepting religious fatwa as a source of law. In 1835, the British began creating a new criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts and Hindu texts, and this common criminal code was ready by 1855. These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt resulting from what was perceived in the common mind as an insult to the inherent hegemony of Indian people of self rule against the British intervention.
In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase, one in which British colonial courts in India no longer relied on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law. A universal criminal code in India, that did not discriminate between people based on their religion, was adopted for the first time in 1864. It was expanded to include a universal procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws. However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India. In 1872, the British crown enacted the Indian Christian Marriage Act, 1872|Indian Christian Marriage Act] which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.
The development of legal pluralism, that is separate law based on individual's religion, was controversial in India from the very start.
Legislation introduced by the British Government was a powerful tool in implementing reforms within the Hindu society. Some important legislations were
- Ban on the practice of sati in Hindu society
- Legal recognition to remarriage of Hindu widows & a childless widow's right to inherit her deceased husband's property
- Abolition of slavery in Hindu society by the Indian Penal Code in 1861
- Legal recognition to dissolution of a Hindu marriage in case of the husband converting to Christianity or Islam by The Native Converts' Marriage Dissolution Act
- Ban on the practice of female infanticide observed by certain Hindu communities in northern India
- Introduction of the concept of 'age of consent' in Hindu society & criminalizing consummation of child-marriages
- Legal recognition to right of a Hindu man to pass down his property to anybody via legal declaration apart from the heirs identified in religious laws by the Indian Succession Act .
- Legal recognition to the right of a diseased/handicapped Hindu to inherit property
- Legal abolition of child-marriage in Hindu society
- Legal recognition to the right of Dalits for entering Hindu temples by The Madras Temple Entry Authorisation and Indemnity Act
- Legal recognition to the right of a Hindu married woman to live apart from her husband by The Hindu Married Women's Right to Separate Residence and Maintenance Act
- Legal abolition of bigamy in Hindu society by The Bombay Marriage Act
Modern Hindu law
After the independence of India from the colonial rule of Britain in 1947, India adopted a new constitution in 1950. Most of the legal code from the colonial era continued as the law of the new nation, including the personal laws contained in Anglo-Hindu law for Hindus, Buddhists, Jains and Sikhs, the Anglo-Christian law for Christians, and the Anglo-Muslim law for Muslims. Article 44 of the 1950 Indian constitution mandates a uniform civil code, eliminating all religion-based civil laws including Hindu law, Christian law and Muslim law throughout the territory of India. While Hindu law has since been amended to be independent of ancient religious texts, Article 44 of the Indian constitution has remained largely ignored in matters of Muslim law by successive Indian governments since 1950.An amendment to the constitution formally inserted the word secular as a feature of the Indian republic. However, unlike the Western concept of secularism which separates religion and state, the concept of secularism in India means acceptance of religious laws as binding on the state, and equal participation of state in different religions.
Since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. This debate remains unresolved. The Quran-based Indian Muslim Personal Law Application Act of 1937 remained the law of the land of modern India for Indian Muslims, whereas secular personal laws promulgated by the Indian Parliament without any reference from Hindu religious texts & solely modelled on their Western European counterparts based on concepts of equality & non-discrimination enshrined in the Constitution passed in the mid-1950s was applied to Indians who are Hindus, as well as to Indian Christians and Jews in India|Jews]. This has been a source of controversy in Indian political circles, with the Hindu right-wing describing the existence of a separate body of religious law for Muslims while denying the same to non-Muslims as a form of Muslim appeasement. They demand that under a uniform civil code, Muslims should be made to follow the same family law as Hindus.
Legislation introduced by the Government of India continued to be a tool for inducing reforms within the Hindu society. Some important legislations were
- Legal abolition of caste & sex-based discrimination by Article 15 of the Constitution of India
- Legal abolition of untouchability by Article 17 of the Constitution of India
- Legal recognition to civil marriage in Hindu society & inter-faith marriage in India
- Legal recognition to inter-caste marriage, abolition of polygamy & introduction of the concept of divorce in Hindu society
- Mandatory enforcement of the protection of civil rights of SC and ST people by The Untouchability Act
- Legal recognition to Hindu women as legal guardians of their children
- Legal recognition to adoption of Hindu children outside the family, community & caste of the adopter
- Legal recognition to the right of Hindu women for inheriting paternal property & that of all Hindus to inherit property matrilineally
- Criminalisation of hate-crimes against SC and ST people
- Legal abolition of the practice of a Hindu's obligation to repay ancestral debt & recognition to equal rights of both sons & daughters for inheriting ancestral property
- Legal recognition to right of all Hindus irrespective of sex & caste to receive compulsory education
The Hindu code bills were met with severe criticism & condemnation by Hindu right-wing outfits. In spite of the passage of new laws, child marriage continues to be in vogue among Hindus, especially in rural areas. Calls have also been made to free Hindu temples from government control.