Hindu law

Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India.[1] Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950).

Prior to Indian Independence in 1947, Hindu law formed part of the British colonial legal system and was formally established as such in 1772 by Governor-General Warren Hastings who declared in his Plan for the Administration of Justice that "in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of the Shastras with respect to the Hindoos shall invariably be adhered to."[2] The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (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 they chose to do so. Rather, Dharmaśāstra contains what may be called a jurisprudence, i.e., a theoretical reflection upon practical law, but not a statement of the law of the land as such.[3] Another sense of Hindu law, then, is the legal system described and imagined in Dharmaśāstra texts.

One final definition of Hindu law, or classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition. One of the major complaints of Hindu law is that it does not give everybody rights. However, the people at the top of the Hindu society are treated with benefits, while the bottom is treated with less care. Hinduism is a prime example of how law is the defining feature of religion life. All together Hindu Law is a structured system that leaves its historical discoveries in the background.[4]Such local laws never conformed completely to the ideals of Dharmaśāstra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly. It is worth emphasizing that Sanskrit contains no word that precisely corresponds to 'law' or religion and that, therefore, the label "Hindu Law" is a modern convenience used to describe this tradition. This article will briefly review the Hindu law tradition from its conceptual and practical foundations in early India (Classical Hindu Law) through the colonial appropriations of Dharmaśāstra (Anglo-Hindu Law) to the establishment of the modern personal law system (Modern Hindu Law).

Dharma and law

Further information: Dharma and religious law

The Classical Sanskrit term for "law" is dharma. This is "law" in the historical sense (of course predating the modern division of religious from secular law), as such including aspects such as ritual purification, personal hygiene regimens, and modes of dress, in addition to court procedures, contract law, inheritance, and other more familiarly "legal" issues. As in other religious traditions based on orthopraxy (rather than testimony of faith; see e.g. Halakha Sharia), the modern attempts to separate religious practice from secular law has been criticized by traditionalists (orthodox Hinduism).[5] According to Rocher, the British Raj implemented a distinction between the religious and legal rules found in Dharmaśāstra and thereby separated dharma into the English categories of law and religion for the purposes of colonial administration.[6] However, a few scholars have argued that distinctions of law and religion, or something similar, are made in the Hindu legal texts themselves.[7]

Sources of dharma

There are usually three principal sources of dharma in the Dharmaśāstra texts:

  1. śruti, literally translates as "what is heard," but refers to the Vedas or Vedic literature which are the liturgical and praise hymns of the earliest Hindu tradition
  2. smṛti, literally "what is remembered," but refers to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and the Epics (Mahābhārata and Rāmāyaņa)
  3. ācāra, literally "practice," but refers to the norms and standards established by educated people who know and live by the first two sources of dharma

In two important texts, namely the Laws of Manu [Manu Smriti] (2.6) and the Laws of Yājñavalkya [Yajnavalkya Smriti] (1.7) another source of dharma, ātmastuṣṭi, literally "what is pleasing to oneself," is also given, but later texts and commentaries severely restrict this source of dharma.[8]

Effectively, the three ideal sources of dharma reduce to two – texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.

Important legal concepts in Dharmaśāstra

The Dharmaśāstra developed an extensive repertory of legal concepts denoted by Sanskrit terms, many of which were adapted from older theological, philosophical, and political discourses. Although Dharmaśāstra itself was rarely cited directly in litigation or other legal practice, many of these concepts show up in South and Southeast Asian legal documents such as deeds, charters, and orders preserved in inscriptions or other records, including those not composed in Sanskrit (Lubin, 2012). Important examples[9] include:

Classical Hindu law

Main article: Classical Hindu law

There is little evidence for the practice of law in India prior to about the eighteenth century. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings.[13] In other places, such as South India, temples were intimately involved in the administration of law.[14]

Law during the classical period was highly based upon the teachings of the dharmaśāstra and the distinguished sources of dharma as dictated by those learned in the Vedas.[15] Although theologically law was primarily derived from Vedic knowledge, in actual practice, the community norms of particular social groups determined the actually rulings. Law was therefore highly decentralized and quite particular in nature towards specific groups.[16]

What is almost completely lacking for classical and medieval India are the records of courts. In lieu of such records, other kinds of evidence for legal practice must be used to piece together an outline of Classical Hindu Law in practice. Such evidence includes prominently the numerous inscriptions from this period that record a variety of legal transactions, gifts, contracts, decrees, etc. associated with political rulers, temples, corporate groups and others. Many aspects of law were likely under the jurisdiction of castes or other corporate groups such as merchant guilds, military groups, traders, and religious orders.

Beginning around the eighth century, Hindu legal traditions began to be imported into certain parts of Southeast Asia (Cambodia, Java, Bali, Malaysia, Thailand, and Burma) as part of a larger cultural influence mediated by trade and diplomatic relations. In each of these regions, Hindu law fused with local norms and practices, giving rise to legal texts (Āgamas such as the Kuṭāra-Mānawa in Java, and the Buddhist-influenced Dhammasattas/Dhammathats of Burma and Thailand)[17] as well as legal records embodied (as in India) in stone and copper-plate inscriptions.[18]

Anglo-Hindu law

Main article: Anglo-Hindu law
Fort William, Calcutta, where Henry Thomas Colebrooke was appointed professor of Hindu law in 1805

The early period of Anglo-Hindu Law (1772–1864) is characterised by three main features: 1.) the collection and translation of important Dharmaśāstra texts by British administrator-scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in order to "apply" the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court pandits in British courts to aid British judges in the interpretation of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the "redundancy" of court pandits.[19]

In 1864, just after India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which the court pandits were dismissed due to the extensive case law that emerged during the first phase. During this time a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and to provide it with a legislative foundation. With the disappearance of court pandits, continual growth of case law (on topics involving questions of Anglo-Hindu law), and new legislative foundation, the relevance and interest in Dharmaśāstra as the source of law also diminished as the parliamentary codified what they believed to be Anglo-Hindu law . The gap between the idealised legal system of Dharmaśāstra and the diversity of customary law throughout British-India led to the fixing of regional customary laws by the British officials. This was done through interviews, observations, and discussions with locals. Massive volumes of customary rules that were in theory being enforced were collected throughout British-India and became part of the consultative resources of the courts.

One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India.[20] The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.

Modern Hindu law

Main article: Modern Hindu law

With the formal independence of India from Britain in 1947, Anglo-Hindu law and the other major personal law system of the colonial period, the so-called Anglo-Muhammadan law (Islamic law), came under the constitutional authority of the new nation. The new constitution was officially adopted by India in 1950 and had a primary focus on securing equality in the social, political, and economic realms.[21] Although there has been discussion that the Indian Constitution has a secular Hindu bias, an amendment to the constitution (42nd Amendment, 1976) formally inserted the word secular as a feature of the Indian republic.[22]

In the early 1950s, contentious debates ensued over the so-called Hindu Code Bill, which had been offered in the Indian parliament, as a way to fix still unclear elements of the Anglo–Hindu law. Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo–Hindu law. In the end, a series of four major pieces of legislation were passed in 1955–56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation.[23] Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of Modern Hindu Law.

There are no religious courts in India; rather all cases are adjudicated within the state district courts, presided over by state bureaucrats. However, there exist village tribunals, caste councils, and other bodies that try community members according to custom and religious law; however this is not adjudicated or enforced by the state. State judges have no formal religious legal training and are thus required to apply Hindu law in an abbreviated version. It is possible for a Hindu judge to preside over a Muslim couple's divorce, just as it is possible for a Christian to preside over the adoption case of a Hindu family. It is here where courts rely on the lawyers to argue the religious laws and advocate on behalf of their clients.

Modern Hindu Law as given by the Judicial System. Among the most notable aspects of Modern Hindu Law as established by the Indian judges' jurisprudence is to be mentioned the permissibility of oral partition of Hindu Family Property. Mutation of land records in government offices can be made on the basis of such an oral partition. (Source: Recent Civil Reports, year 2007, Volume No. 5, Page No. 694 – Judgment given by Bombay High Court – Aurangabad Bench – Case Title: Shekoji Bhimrao Vs. Motiram Maruti Maratha. – 2007[5] RCR[Civil] 694 [Bombay] [Aurangabad Bench].)

See also

Notes

  1. ↑ See, for example, Herbert Cowell's definition of Hindu law in The Hindu Law: Being a Treatise on the Law Administered Exclusively to Hindus by the British Courts in India (Calcutta, Thacker, Spink and Co.: 1871), 6.
  2. ↑ See Sect. 27 of the Administration of Justice Regulation of 11 April 101.
  3. ↑ For reviews of the British misappropriations of Dharmaśāstra, see: Richard W. Lariviere, "Justices and Paṇḍitas: Some Ironies in Contemporary Readings of the Hindu Legal Past," in Journal of Asian Studies 48 (1989), pp. 757–769, and Ludo Rocher, "Law Books in an Oral Culture: The Indian Dharmaśāstras," Proceedings of the American Philosophical Society 137 (1993), pp. 254–267.
  4. ↑ Lubin, Timothy. "The Spirit and the Flesh of Hindu Law." Journal of the American Oriental Society 130.3 (2010): 445-51. ProQuest. Web. 10 Feb. 2014.
  5. ↑ K.V. Rangaswami Aiyangar, Rājadharma (Adyar: Adyar Library, 1941), 23; Robert Lingat, "Les Quatre Pieds du Procés," Journal Asiatique 250 (1962), 490–1; and Richard W. Lariviere, "Law and Religion in India," in Law, Morality, and Religion: Global Perspectives. ed. Alan Watson (Berkeley: University of California, 1996).
  6. ↑ Ludo Rocher, "Hindu Law and Religion: Where to draw the line?" in Malik Ram Felicitation Volume. ed. S.A.J. Zaidi (New Delhi, 1972), 190–1.
  7. ↑ J.D.M. Derrett, Religion, Law, and the State in India (London: Faber, 1968), 96; For a related distinction between religious and secular law in Dharmaśāstra, see Timothy Lubin, "Punishment and Expiation: Overlapping Domains in Brahmanical Law," Indologica Taurinensia 33 (2007): 93–122.
  8. ↑ Donald R. Davis, Jr., "On Ātmastuṣṭi as a Source of Dharma," Journal of the American Oriental Society 127:3 (2007), pp. 279–96. For contrary opinions that place great weight on the importance of ātmastuṣṭi, see Werner Menski, Hindu Law: Beyond Tradition and Modernity (Delhi: Oxford UP, 2003), p.126 and Domenico Francavilla, The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretation in Mīmāṃsā and Dharmaśāstra. Corpus Iuris Sanscriticum. Vol. 7 (Torino: CESMEO, 2006), pp.165–76.
  9. ↑ Davis 2010 discusses several of these in relation to broader legal and cultural issues.
  10. ↑ Lubin 2010.
  11. ↑ Lubin 2010.
  12. ↑ For contrasting views on the relation between punishment and expiation, see Lubin 2007 and Davis 2010.
  13. ↑ Vithal Trimbak Gune, The Judicial System of the Marathas. Deccan College Dissertation Series. No. 12 (Poona: Deccan College Post-Graduate and Research Institute, 1953).
  14. ↑ Donald R. Davis, Jr., The Boundaries of Hindu Law: Tradition, Custom, and Politics in Medieval Kerala. Corpus Iuris Sanscriticum et Fontes Iuris Asiae Meridianae et Centralis. Vol. 5. Ed. Oscar Botto (Torino (Italy): CESMEO, 2004).
  15. ↑ Hacker, Paul. 2006. pp. 484
  16. ↑ Davis, Jr. Donald R. Ch. 1.
  17. ↑ Hooker 1986.
  18. ↑ Creese 2009a, 2009b.
  19. ↑ On this period, see Rosane Rocher 2010.
  20. ↑ Ludo Rocher, "Indian Response to Anglo-Hindu Law." Journal of the American Oriental Society 92:3 (1972), pp. 419–42 and Marc Galanter, Law and Society in Modern India (Delhi: Oxford UP, 1989).
  21. ↑ Seshagiri Rao, K.L. (1997–1998). Practitioners of Hindu Law: Ancient and Modern. Fordham Law Review, 66, Retrieved 15 October 2008
  22. ↑ Singh, Pritam. 2005. "Hindu Bias in India's 'Secular' Constitution: probing flaws in the instruments of governance." Third World Quarterly. 26:6, 909–926.
  23. ↑ Bannigan, John (3 December 1952). The Hindu Code Bill. Far Eastern Survey: American Institute of Pacific Relations, XX1, Retrieved 22 October 2008.

References

Further reading

Anglo-Indian law
Modern Hindu law

External links