Sources of Hindu Law
Hindu Law is 6000 years old. In this span of 6000 years, it has passed through various phases. Hindu Law, despite the fact that before the advent of modern era, there was no direct law-making machinery, has shown remarkable adaptability. The study of sources of Hindu Law is the study of various phases of its development which gave it a new drive and vigour, enabled it to conform to the changing needs. Originally it came to sub serve the needs of pastoral people and now it has come to subserve the needs of modern welfare society.
Sources under Hindu Law can be divided into – Ancient and Modern Sources.
I. Ancient Sources –
Sruti
Hindu Law is considered to be a divine law. The theory is that some of the Hindu sages had attained great spiritual heights, so much they could be in direct communication with the God. The god had himself revealed it to the, this revelation is contained in Sruti or Vedas. The word “Sruti” means what was heard. The Vedas contain the divine revelation. The term Sruti stands for four Vedas – the Rig, Yajur, Sama and Atharva alongwith their respective Brahmans. The Vedas depict the way of life of our early ancestors.
Smritis
The word “Smriti” literally means what has been remembered. In theory the Smritis are based on the sages who were repositories of sacred revelation. The Smritis may be divided into early Smritis and later Smritis. The former are called Dharmasutras and the latter the Dharmashastras. Dharmasutras were mostly written in prose, though few of them are written both in prose and verse. They generally bear the name of their authors. The later Smritis or Dharmashastras are mostly in metrical verses and later in age than Dharmasutras. They are divided into Achara, Vyavahara and Prayaschitta. They deal with the subject-matters in a very systematic manner.
Digests and Commentaries
In an ever advancing society, a clear and systematic exposition of rules of law, legal concepts and principles was necessary. The rules enunciated in the Smritis were not always clear cut and they did not cover all situations. Thus the need arose for further analysis, systematization and assimilation of law. This need was satisfied by the Commentators and Digest Writers. The last of the commentaries is written by Nanda Pandit on the Vishnu-dharmasutra called the Vaijyanti.
Custom
It is a singular contribution of Historical School of Jurisprudence that it conclusively established that in earlier societies that custom was the main vehicle of legal development.
Requirements of a valid custom-
- Custom should be ancient.
- Custom should be continuous.
- It should be certain.
- It should not be unreasonable.
- It should not be immoral
- It should not be opposed to public policy and law.
II. Modern Sources
Among the modern sources of Hindu Law are included justice, equity and good conscience. These sources exist even in the Shastric Hindu Law, though in a different form.
Equity, Justice and Good Conscience
Equity, Justice and Good Conscience as a source of law owes its origin to the beginning of the British administration of Justice in India.
In Gurunath v. Kamlabai[1], the Supreme Court said that it is now well established that in the absence of any rule of Hindu Law, the Courts have authority to decide cases on Justice, equity and good conscience unless in doing so, the decision would be repugnant to or inconsistent with any doctrine or theory of Hindu Law.
Precedent
The doctrine of Stare Decisis and Precedent are essentially a gift of British administration of justice in India. Precedent can be called be source of Hindu Law in two senses- firstly, all the important principles and laws of Hindu Law are embodied in case law. Secondly, precedent is a source of law in the sense that by the process of judicial interpretations, doctrines and principles and rules of law stand modified or altogether new principles, doctrines and rules have been introduced in the body of Hindu Law.
Legislation –
As a matter of policy the Government during the British Rule was slow and cautious to change Hindu Law by legislative intervention. Some of the statutes that have affected modification in Hindu Law either by reforming Hindu Law or by superseding rules of Hindu Law are – Arya Marriage Validation Act, 1937, Hindu Women’s Right to Separate Maintenance and Residence Act, 1946; Hindu Marriage Removal of Disabilities Act, 1946; Hindu Marriage Validity Act, 1949.
Conclusion
Although Hindu Society has advanced but beyond that it was during the period of Commentaries and Digests, yet the development of laws are thwarted. Hindu Law became static and did not conform to the changed context of Hindu society. The progressive section of Hindu Society always clamored to changes. Hence, several reforms are made in the Hindu law, meeting the changing needs of society.
References –
Dr. Paras Diwan, “Modern Hindu Law” (Allahabad Law Agency, 24th edn.) 27
[1] [1951] 1 SCR 1135
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