Sources of Hindu Law

February 1, 2022

Introduction:-

In India, each religious community has its law, customs, and traditions that have been practised for centuries and still prevail. In our country, the community of Hindus being the majority, have laws and legislations that govern various aspects of our life, from marriage to adoption, succession to guardianship, and so on. In this article, we are going to look into the various sources of Hindu law and its evolution because of its broad categorization of Ancient and Modern Sources.

Types of sources of Hindu law:-

Ancient Sources:-

The civilization of the Hindus is considered to be one of the most ancient civilizations. Considering the archaic nature of our civilization, ancient literature was touted to be the only source of law before the Hindu law was codified. The traditional sources of Hindu law are:-

i) Shrutis: The term “Shruti” is a Sanskrit word that loosely translates to “what is heard” and is considered to be a fundamental and the most authoritative source of Hindu law. It is said to be the language of divine revelation received from the sages and they are synonymously known as “Vedas”. Vedas are the earliest body of Indian Scriptures that contained the practises of the Vedic religion.

The scripture provided hymns, philosophy, guidance on rituals and is a large collection of religious texts. These texts are believed to be direct communication from God to religious scholars and subsequently passed on to the succeeding generations. These religious texts comprise the four Vedas.

The first one is the Rig Veda, which is a cluster of songs and hymns which contain information about the Rig Vedic civilization. The second one is Sama Veda and is a collection of verses and melodies which were to be chanted by the “seers” – a person endowed with profound spiritual knowledge and insight. The third one is Yajur Veda, which is a collection of sacrificial formulae and prayers, used by priests or pundits. The last Veda is the Atharva Veda, which contains a collection of spells and incantations, as well as tales, prophecies, apotropaic charms, and some fictitious hymns.

Each Veda is said to have three parts which are:-

Sanhita: Consists mostly of hymns

Brahmanas: Consists of ritual treatises

Upanishads: Consists of philosophical elaboration of the Vedas

ii) Smritis: The Sanskrit word loosely translates to “to remember” and is a class of sacred literature that explains and codifies the Vedas but is considered secondary to the Shrutis. Smritis are considered to be the forgotten parts of the Shrutis by the sages. They are broadly divided into two categories namely Dharmasutras and Dharmashastras. The Dharmasutras are written in prose, in short maxims, known as Sutras whereas the Dharmashastras are composed in poetry, known as Shlokas.

iii) Digests and Commentaries: During the early stages, Commentaries and Digests were the scholarly interpretation of the literature of Smritis.

Commentaries were originally based on Smritis, but subsequent works were more like digests, covering a variety of Smritis and explaining and resolving different inconsistencies. Commentators are said to have interpreted and modified the original texts of Smritis to go in accordance with the local customs but now are considered to be authoritative to the original texts themselves. The most prominent Digests and Commentaries are Dayabhaga and Mitakshara respectively which also happen to be the two major schools of Hindu Law.

iv) Customs: A custom is generally defined as a widely accepted form of behaviour that is followed at a specific place or widely, a society. In the case of Deivanai Achi v Chidambaram Chettiar (1953), it was held that if a custom has to be given legal recognition, then it must be continuous in practice, not imprecise or unclear, and must not contradict previously established public policies. A customary norm must be observed by all members of society. It is regarded as the third source of Hindu Law.

Modern sources:-

The religious scriptures of the Dharmastra, customs, and commentaries or digests that translated and interpreted the rules, were all sources of Classical Hindu law. India has formalised numerous components of Hindu tradition into the Indian legal system, as well as adopting common and civil legal processes, since British colonial control. The modern sources of Hindu Law are:-

i) Legislations: The Indian Constitution is the supreme law of the country. Due to the majority of Hindus in our country, it is safe to say that our Legal system and our Constitution have been largely influenced by the traditions of Hindus. In all Indian courts, legislation established and executed by the Indian government is the most powerful source of law. In the event of a dispute between two sources, legislation has the last say. It is the most recent and genuine type of law in the Hindu legal system irrespective of its history.

ii) Precedents: Many global legal systems in the world, especially in countries that do not have a strictly codified form of the Constitution, for instance, The British, heavily rely upon common law and precedence to make judgements. Though our country has a codified document of the Constitution, the historic cases and judgements decided over the years, have equal contributions to the progress and formation of our country. The Privy Council’s judgements are now obligatory on all subordinate courts in India unless they have been modified or revised by the Supreme Court, whose decisions are binding on all courts save itself.

iii) Justice, Equity, and Good Conscience: In our country, we are likely to face instances that have no matching law to solve the issue. However uncommon it might be, there can be a dispute to which there is no pre-existing law to govern the situation. In such circumstances, the Courts are expected to use core principles, norms, standards of fair play, and appropriateness to make decisions. This is referred to as the principles of justice, equality, and good conscience, also known as natural law.

Therefore, this is how the sources converge and join together to establish the Hindu law.

References:-

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February 1, 2022