The Hindu system of Jurisprudence is the most ancient legal system in the world and it has been prevalent since the emergence of humanity. So, it is essential to know the various sources from which the Hindu law has evolved. The term “sources of law” means the authority from which the law has been derived. It denotes the basis from which the Hindu law came into existence and these sources are also considered as the evidence of Hindu law. In this article, we will explore the meaning and nature of Hindu law along with the various ancient and modern sources of Hindu law from which the Hindu law has evolved.
Meaning of Hindu Law
The term Hindu has been derived from the old Sanskrit word “Sindhu”. The term Sindhu was used for the local residents of the North-Western part of the Indian subcontinent near the Indus river. The Hindu law is a collection of personal laws that regulates the social affairs of the members of the Hindu religion. These social affairs include marriage, adoption, inheritance, partition and other family matters. In India, every religious group governs their social affairs as per their own personal laws.
Now, it is essential to understand who is a Hindu for the purpose of determining the application of Hindu law –
A person will be called a Hindu, if
- He is a Hindu by way of religion.
- He belongs to either Budh, Jain or Sikh community.
- He is not a Parsi, Christian, Muslim or Jew by religion.
Nature of Hindu Law
The Hindu law is considered to have a divine origin from the Almighty God. According to the Jurist, the law was not the command of the sovereign but it was the obedience to our Supreme authority known as “Dharma”. The law for a person was to follow his Dharma. Both the kings and the subjects had to abide by the rules of Dharma. It tells about our rights and duties and guides us to achieve salvation. As per the jurist, Dharma binds the individual through the code of conduct.
Further, the nature of Hindu law is progressing and it evolved subsequently as per the changing needs and dynamics of the society. The privy council in Mookka Kone vs Amma Kutti held that the Hindu law was not static or rigid. There is a continuous progression while following the basic virtues or values of the law.
Type of Sources of Hindu Law
The sources of Hindu law is broadly divided into 2 parts
1) Ancient Sources
2) Modern Sources
Ancient or Traditional sources of Hindu law
It refers to those laws which regulate the conduct of Hindus in the ancient time when there were no codified laws and regulations. In reality, these were the real sources from which the Hindu law came into existence. The ancient sources act as a guiding principle for our modern-day legal system.
There are mainly 4 ancient sources of law namely –
It is the first and the most authoritative source of Hindu law. The word Shruti has been derived from the Sanskrit word “Shur” which means “to hear”. It means the words of law pronounced by the divine God and heard by our holy sages. The sages further passed on this knowledge to the common people and it became the law of the land.
The Shruti is also known as “Vedas” which are considered the most sacred document in our Hindu religion. The Vedas are divided into 4 parts namely, Rigveda, Samveda, Yajurveda, Atharveda. These Vedas made us aware of our duties and their manner of performance while living in society. The essence of these duties is mentioned in the Upanishads.
The word Smriti is derived from the Sanskrit word “Smri” which means to remember. In simple language, Smriti refers to those words of God, which the sages forget to tell in their original form and these words were remembered by the sages and they wrote down in their own words. Thus, we can say that Shruti is the direct language of God whereas Smriti is the indirect one. In case of any dispute between the Shruti and Smriti, then the Vedic text of Shruti will prevail.
The Smritis are mainly of two types namely, Dharmashastras and Dharmasutras. In Dharmashastra, our moral code of conduct is stated whereas, in Dharmasutras, the rule regarding government, population, economic affair, etc is mentioned. A large number of Smritis are available in Hindu law but the renowned and the most authoritative smritis are the Yajnavalkya Smriti and the Manusmriti. The Manusmriti was the first law book written by Manu and it is considered as the backbone for the system of governance.
The text of Smritis dealt extensively with the 3 core areas of law namely-
Achar – It relates to the code of conduct and Morality
Vyavahar- It deals with the Substantive rules which a king should follow to settle a dispute.
Prayaschitta – It is also known as the theory of Punishment. It deals with the penal provision in case of commission of any offense.
Digests and Commentaries
The third important source of Hindu law is the Digest and Commentaries. The commentaries emerged as the source of law in the period ranging from the 7th Century to 1800 A.D. The commentaries refer to the explanation of Smriti in simple language. The concept of digests came into existence after the commentaries and they mainly explain the matter of Smriti with contradictions. A large number of commentaries and digest were written by our ancient authors on various Smritis.
The commentaries played a fundamental role in the emergence of various schools of Hindu Law. The Mitakshara school of law was developed on the basis of the commentary written by Vijayneshwara on Yajnavalkya Smriti. On the other hand, the commentary of Jimutavahana laid the foundation of the Dayabhaga School of law which is followed mainly in the area of Bengal and Assam. These two schools are considered an integral part of our Hindu legal system.
Custom and Usage
It refers to those traditions, activities and practices which the people are following for a very long time and over time they received the force of law. The main objective behind this source of law is that if the people are following a particular custom and it does not possess any harm to society, then the state should recognise them legally.
The custom can be divided into 3 types namely:
- General Custom – It refers to those practices which are followed throughout the country. They are not restricted to a particular geographical area.
- Local customs- It refers to those customs which are only found in a particular area of society.
- Class customs- It includes those customs which are followed by a particular class of the society.
Basis of a valid custom
The Indian Judiciary has time to time clarified the grounds of a valid custom which involves –
- .Antiquity- The custom shall be in practice from time immemorial.
- Reasonability – The practice in question shall be reasonable and there shall not be any arbitrariness.
- Continuance – The custom in practice shall be continuing in nature since its emergence.
- Certainty – A valid custom shall necessarily possess the element of certainty.
- Not Against the Public Policy – Lastly, It shall not be inconsistent with the public policy.
Modern Sources of Hindu Law.
It refers to those sources which are comparatively new and these have evolved in recent times to meet the changing needs of society.
The 3 modern sources of Hindu Law are described as follows –
Justice, Equity and good conscience
This concept of law is based on the principle of fairness and impartiality. Many times, the judges faced a case in which there is no legal remedy for the aggrieved party. However, if the remedy is not given, the party will suffer considerably. Thus, a concept was evolved to reduce the hardship of law and it was known as the principle of Equity. Under this principle, the court can provide appropriate relief to the concerned party on the ground of reasonableness and fair play. True justice can only be attained through Equity and good conscience.
This concept of equity is very similar to the concept of natural law in ancient Hindu jurisprudence. So, whenever a conflict arises between the natural and the codified law, the natural law will prevail and will guide our actions.
The legislation is also known as the codified form of law. It is the most common and reliable source of law in the present times. it is an Act of the parliament in which all the provisions, rights and liabilities of the parties are mentioned. After getting independence, there was a sudden surge in the area of codified laws.
The codified law is the binding and the most authoritative source that overrides all the other provisions of law. The parliament from time to time brings new Acts or amend the existing ones to keep pace with the rapidly changing society. The major enactment related to the Hindu law is the Hindu marriage act,1955, Hindu adoption and maintenance Act, Hindu minority and guardianship act, etc.
The precedent is also a very important source of Hindu Law. The term “Precedent” means following the decision of a higher court by a lower court if the decision involves a common question of law. It is also important to note that the facts of both cases should also have some sort of similarity before applying this source. At present, the decisions of our Hon’ble Supreme court of India is binding on all the lower courts and the decision of High courts is binding on all the lower courts of that particular state.
The precedent is an integral source of Hindu law as all the important rules, principles and doctrines of Hindu laws are mentioned in various landmark cases. Thus, any sort of dispute can be easily settled through their reference.
Hindu law is the most ancient legal system that is living proactively for 6000 years. It is believed to have a divine origin and it was developed on the basis of the will of the people and help them in attaining salvation. The sources can be classified into 2 parts namely ancient and modern sources. The modern sources are developed on the basis of the principles enshrined in the ancient sources. The ancient sources of Hindu law are also considered as the Identity of our Hindu religion.