Hindu law has the oldest pedigree of any system of jurisprudence, and even now it shows no sign of decrepitude.” -Henry Mayne.
The Hindu law is considered to be around 6000 years old ancient law system. The phrase “source of law” has several meanings to it, but in the present context this word means the “maker of law” or the “cause of law”. The evolution of Hindu law has not been just from one source, rather several factors have contributed for the growth of it. The sources of Hindu law can be classified under the following two heads:[1]
Ancient Sources:
- Shruti– The word Shru means ‘to hear’. Since no written material was available at that time so the sages used the primary way to communicate knowledge orally to their families and disciples and this process went on. In ancient times, Vedas and Upanishads were learnt orally by listening them. The Shrutis are made up of 4 Vedas, that includes Rig Veda, Yajur Veda, Sama Veda and Athar Veda. These Vedas did not include any law rather, it included the Dharma, which means the way of living and it described that the Hindu Society is made up of patriarchal families. Dr. P.V. Kanne, in his book. “History of Dharamshashtra” said that. “If we want to see religion (Law) in a proper way, then we should analyse Shruti and Smritis.”
- Smriti– The word Smriti means ‘which is remembered’. It is a body of texts by different authors and was transferred to further generations. It is an important source of Hindu law and was remembered in two ways- prose style and poetry style. There are many Smritis, but the well-known Smritis includes, Manu Smriti, Yajnavalkya Smriti, Narada Smriti. These Smritis differed themselves from the point of view of rights of women.
- Digests and Commentaries– The two important Digests and Commentaries includes, Mitakshara and Dayabhaga. The word Mitakshara means ‘a brief compendium.’ It is a commentary by Vijanaeshwara on Yajnavalkya Smriti and Dayabhaga is written by Jimutavahana and is a digest of all codes. In the case of Atmarao v. Bajirao[2], it was held that “Digest writers and commenters has given the statements of Smritis which can fulfil present requirements and ahead from Smritis.” Dr. Jolly says that, “Mitakshara and Dayabhaga are one of the most striking composition in the whole department of Indian Jurisprudence.”
- Customs– Customs are given force of law in many situations, but since India is a country with much of population, it would be impossible to include all customs into the commentaries. A Custom defines a rule in a particular class or district and has been in usage from a very long time. In a case of Harparsad v. Shiv Daya[3], “it was said that the custom is family or particular class or area owing to a long tradition.”
Modern Sources:
- Justice, equity and good conscience-These may also be termed as ‘Natural law’. The courts cannot refuse to settle the dispute in the absence of law and they are under an obligation to decide such cases as well, which would be based on basic values, norms and standards of fair play and propriety. In a case of Gurumukh Singh v. Kamla Bai[4], “it was held that where there is lack of rules of Hindu Law over any subject, there court could pronounce their decisions on the basis of principle of Justice, equity and good conscience.”
- Precedent– After the British rule, hierarchy of courts was established and the decisions of the Privy council was binding on the lower courts except when it is modified or is changed by the Supreme Court whose decisions are binding on all courts except for itself. The case of Collector of Madurai v. Mottaramlingam, [5] “laid down certain rules for the application of precedents such as the decisions of the superior courts are binding on the inferior ones.”
- Legislation– It was the easiest way of making the law uniform. These were reformative in nature and had authority, easily accessible, ascertainable and concrete. Legislations are acts of Parliament, which has been playing a major role in the formation of Hindu law.
[1] Hon’ble Katju,M, J., Ancient Indian Jurisprudence vis-a-vis Modern Indian Jurisprudence, AIR 2008 Journal 65
[2] Atmarao v. Bajirao, (1935) BOMLR 553
[3] Harparsad v. Shiv Daya,1816.
[4] Gurumukh Singh v. Kamla Bai, (1951) S.C.R.1135
[5] Collector of Madurai v. Mottaramlingam, 12 M.I.A. 397 (1868)
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