Hindu Law Research Paper

1. The Smrtis

Until the 1950s the main sources of Hindu law were contained in texts written in India’s classical language, Sanskrit (Derrett 1973a, 1973b). The earliest of these texts, the dharmasutras (mostly in prose, and probably earlier) and dharmasastras (exclusively in verse, and probably more recent) may be dated to approximately between 500 BCE and 500 CE. The Indian concept of dharma, for which there is no Western equivalent, is much broader than the Western concept of ‘law.’ A Hindu’s dharma encompasses each and every rule people are supposed to live by and, even though the legal aspects of dharma are more and more treated in isolation in the dharmasastras, ‘legal’ prescriptions in these texts remain inseparable from other obligations, especially those which we would label ‘religious.’ A case in point is adoption, which is not valid unless accompanied by a ritual act, the dattahoma.

To understand the Hindu view of dharma, and of law in particular, it is essential to keep in mind that the dharmasutras and dharmasatras are part of the revealed Veda. They make up the smrti ‘remembrance,’ the authority of which is only slightly lower than that of the older Vedic texts, the sruti ‘revelation.’ They too, were considered to have been transmitted to mankind by rishis (‘seers’). Like the Vedas themselves, the texts on dharma are perfect, eternal, and un- changeable; they should not be interfered with by human beings.

The most important smrti text is the Manusmrti or Mana adharmasastra (ca. 200 BCE–200 CE), attributed to Manu, the progenitor of all Hindus (Buhler 1886). Chapters 8 and 9 of the Manusmrti are entirely devoted to legal matters. Together with Chapter 7 they constitute the rajadharma; the king is indeed the supreme justice in his kingdom. For the first time, an effort is made here to classify the causes of legal disputes, under 18 titles: failure to pay debts, deposit and pledge, sale without ownership, partnerships, resumption of gifts, failure to pay wages, breach of contract, rescission of sale or purchase, disputes between the owner and keeper of cattle, boundary disputes, physical assault, verbal assault, theft, violent crimes, sex crimes, rules for husband and wife, partition and inheritance, and gambling and betting (8.4–7). The subdivision into 18 ‘heads of litigation’ is maintained in all later dharmasastras, with the difference that their eighteenth chapter is often called prakırnaka ‘miscellaneous,’ to incorporate aspects of substantive law that were not dealt with by Manu. Only one dharmasastra is entirely devoted to law, the Naradasmrti (Lariviere 1989). The Manusmrti deals with procedure under the first head of litigation; Narada devotes three introductory chapters to it. Most notable, in the chapters on evidence, is the highly detailed treatment of witnesses and ordeals.

In view of the later development of Hindu law, reference must be made here to one characteristic trait of smrtis that has provoked much discussion in the scholarly literature. There are, in these texts, obvious contradictions, not only between different texts, but also within single texts such as Manu’s translation of Lingat’s 1967 work (see Lingat 1967). In one verse (9.104) Manu prescribes that, after the death of both parents, their sons divide the paternal estate equally. Without any transition, the following verse (9.105) says that the eldest brother takes the entire paternal property, while the others shall live under his authority as they did under their father’s. After a few verses in praise of the eldest son, Manu continues:

‘The eldest son takes an additional share of five percent, as well as the most desirable part of the estate; the next son gets half of that, the youngest one quarter’ (9.112). Or, Manu acknowledges and describes in detail the duties of partners in a levirate marriage (9.60), and elsewhere rejects levirate marriages as pasu-dharma ‘the dharma of cattle’ (9.66). Scholars have attempted to expurgate the preserved Manu text so as to avoid the contradictions. In reality, Manu’s three ways of inheriting paternal property, and his opposite views on levirate, may result from the fact that they were all dharma in different places, among different groups of people, etc. They all knew exactly which rule applied in their community, but all these rules were dharma, and deserved a place in authoritative texts on the subject (Rocher 1993).

2. The Commentaries

From about the seventh century CE onward, and well into the eighteenth century, the smrtis become the object of voluminous commentaries. Both the commentaries on individual texts and the digests which treat of particular aspects of dharma, drew into their discussions the entire body of ancient smrti texts. Among the several, often book-length, sections of the digests most often one or two are devoted to law: some deal with procedure (vyavahara) and substantive law (vivada) separately; others combine the two in a single treatise. There are even digests on specific aspects of substantive law, mainly on inheritance and on adoption.

The commentaries and digests follow the basic trends of the revealed, eternally valid smrti texts. Even though the digests discuss the legal aspects of dharma in separate volumes, ‘law’ remains closely linked to other aspects of dharma: an adoption is still considered invalid if it is not accompanied by the dattahoma.

On the other hand, drawing on the entire body of smrti literature as equally authoritative, the commentators and digest writers are able to fill in gaps in one smrti by drawing on a different smrti. With two exceptions, the smrti texts tell us little about what happens to the inheritance of a father when he does not have any descendant beyond a great-grandson. The commentaries and digests appeal to all smrti texts to establish complete, if rarely uniform, lists of heirs, from the son and other relatives, down to the king. The commentaries and digests do provide coherent, albeit different, systems of Hindu law.

Nowhere is that tendency expressed more clearly than in the contradictions referred to earlier. For the commentators, all smrti texts are equally authoritative; there cannot be any contradictions, and it is their task to show this. They either present the rules as applicable under different circumstances, or they interpret one text literally and do not hesitate to force a meaning on the others, so that all texts are in perfect harmony. In the scholarly literature the often important and farreaching difference between the interpretations put on the smrti texts by the commentators are most often interpreted as attempts on the part of the latter to adapt the former to local circumstances and customs. Or, rather than being concerned with local customs, the commentators apply the same principles as their interpretations of smrti texts in any other field of dharma: subtle grammatical explanations borrowed from Panini’s Astadhyayı and other grammatical treatises, intricate rules of textual exegesis laid down in Jaimini’s Mımamsasutras, principles of logic contained in Gautama’s Nyayasutras, etc. Each individual commentator brings his vast amount of traditional, panditic learning to bear on the smrti texts, to mold them into one coherent system, to interpret them more correctly than his predecessors, with whom he does not hesitate to argue in the strongest possible terms. Differently from the smrti texts, which were revealed once for all through the intermediary of ancient rishis, the commentaries and digests were produced by human beings with whom it was possible to disagree as well as to agree.

3. Anglo-Hindu Law

In search of ways to govern Indians according to their own laws rather than by British Law, in 1772, under the impetus of the Governor of Bengal, Warren Hastings, the East India Company adopted the principle 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 Shaster with respect to the Gentoos shall invariably be adhered to.’ The British administrators were familiar with Muslim law, but the law of ‘the Shastar,’ i.e., the dharmasastras, was totally unknown to them; in fact, at that time not a single Englishman had access to the language of the dharmasastras, Sanskrit. What followed, throughout the British period, is a series of remarkable attempts, on the one hand, to maintain the integrity of shastric law and, on the other hand, to interfere with it and abolish it whenever it came into conflict with basic principles of British justice.

In a first attempt to gain access to the sources of Hindu Law (1772), pandits were attached to the Anglo-Indian courts of law. The Court Pandit received the legal question via a translation from English or Bengali into Persian, and hence into Sanskrit. He consulted his law books, and made a decision, which was again translated, through Persian, into English. Besides being cumbersome and time-consuming, this procedure soon created uneasiness in British legal circles in India: distrust in the pandits and their decisions became a common topic in contemporary reports and correspondence. Even though the office of Court Pandits was not abolished until 1864, meanwhile some Englishmen decided that for them to get access to the sources of Hindu law, they needed to study Sanskrit. One of these early Orientalists was Sir William Jones, a judge in the Calcutta Supreme Court, who produced an English translation of the Manusmrti (Jones 1794).

Even prior to Jones’s translation, Hastings called to Calcutta a group of 11 pundits, to provide him with the code of Hindu law. While the pundits’ composition, Vi adarna asetu, ‘the bridge across the ocean of disputes,’ was still going on, their work was translated into Persian, and from there into English by one of Hastings’s proteges, Nathaniel Brassey Halhed. Halhed’s book became known as A Code of Gentoo Laws, or, Ordinations of the Pundits (1776).

However, neither Halhed’s Code nor Jones’s Institutes proved to be helpful as law books in the Anglo-Indian courts of law. The former suffered much in the two successive translations (and is, in fact, very different from the Sanskrit original); the latter displayed all the characteristics of an ancient smrti text mentioned earlier: no answers to important legal questions, conflicting answers to the same questions, and so forth.

At that point the British turned away from the smrtis, toward the commentaries which at least provided coherent legal systems and gave clear answers to questions raised in Court. On the other hand, each commentator’s coherent legal system was, in varying degrees, different than that of any other commentator. Henry Thomas Colebrooke was first to introduce the concept of Schools of Hindu Law (Rocher 1972), a concept that was to dominate the history of Hindu law until the middle of the twentieth century. According to Colebrooke, there was one digest that was applicable in Bengal, and another commentary that was followed in the rest of India.

In 1810 he published a volume entitled Two Treatises on the Hindu Law of Inheritance, in which he translated Jımuta ahana’s digest Dayabhaga (early twelfth century) as the text for Bengal, and the chapter on inheritance from the Mitaksara, a contemporareous commentary on the Yajna alkyasmrti, as the text for India outside Bengal. In more recent years, as more commentaries and digests were translated, the ‘Mitakshara School of Hindu law’ was further subdivided into four subschools: the Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras schools of Hindu law, each school and subschool administering Hindu law on the basis of its own Sanskrit text (or texts). The result was a pyramidal system in which the decision of any lower court could be appealed to the regional High Court, whose decisions were binding on the lower courts within its territory. The Judicial Committee of the Privy Council in London, the final court of appeal, made binding but different decisions depending on the region from where the appeal originated.

The basic difference between the two major Schools of Hindu law is that, in the Mitaksara school, any male individual born into a family, by his very birth acquires an unspecified right of ownership in joint family property. According to the Dayabhaga, on the contrary, no one becomes the owner of any part of the family property before the time at which the right of the previous owner lapses, either by death or for any other reason that prevents him from exercising his obligations as the manager of the family property. This distinction inevitably had a profound impact on the lesser (Mitaksara) or greater (Dayabhaga) power of the head of the family to manage the family property at his pleasure.

Notwithstanding these efforts on the part of the British to administer Hindu law to Hindus, and even though they continued to pay homage to the Sanskrit dharmasatras, at the same time they steered Hindu law in directions that were alien to the ancient rishis and the commentators.

First, based on the principle that ‘we are here to administer law, not religion,’ the Anglo-Indian courts drew the line between what they considered legal actions and the ritual activities that were an integral part of them in the Sanskrit texts: in Anglo-Hindu law, adoption became valid even without the performance of the dattahoma.

Second, since the commentaries and digests in each region became the principal sources of law, the Courts no longer considered it necessary to look for the correct meaning of the smrti texts on which the commentaries were based; they relied invariably and solely on the commentators’ interpretations, thereby reversing the original scale of authority between the human commentaries and the texts transmitted in the revealed smrtis.

Third, even when Indians joined the Courts, the number of judges and advocates who knew Sanskrit remained small. All arguments and judgements were based on English translations. If one of the parties demonstrated that a translation was in error, the judges rejected that argument, and referred instead to precedents contained in the massive Indian Law Reports. From being based on texts, Hindu law now became a case law, and the law reports were interspersed with Latin phrases such as stare decisis and communis error facit ius.

Finally, there were traits of Hindu law that ran counter to basic British conceptions of law and justice. In many of these cases the judges overruled Hindu law on the basis of the principle of ‘justice, equity, and good conscience.’ When the sisters of a murderer claimed the inheritance of his victim, which in Hindu law their brother was entitled to because he was physically and mentally capable of performing the prescribed rituals (sraddha) for the deceased, the case went through several appeals with opposite results, until the Privy Council rejected outright the murderer’s right to inherit.

Conversely, Hindu law was expanded by the Courts’ recognition of wills, which were unknown in the traditional system. In other cases, the British passed a number of Acts which overruled and abolished some existing practices of Hindu law. As the titles of the earliest Acts (The Caste Disabilities Remo al Act, 1850; The Hindu Widow’s Remarriage Act, 1856; etc.) indicate, they aimed at improving the living conditions of outcasts (a Hindu who renounced his religion or was excluded from his caste lost any right to property and inheritance) and women (when her husband died, his widow, however young she might be as a result of the common practice of child marriage, was not allowed ever to remarry).

4. Hindu Law In Independent India

In 1947 Hindu law as established by the British passed unchanged into the courts of Independent India. Implementing article 44 of the Constitution: ‘The State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India,’ was delayed. Even the more modest attempt at providing all Hindus in India with a uniform ‘Hindu Code,’ an idea that preceded Independence, failed. However, in 1955 the Indian Parliament enacted The Hindu Marriage Act, which applied not only to Hindus, but also to Buddhists, Jainas, and Sikhs; in short to any Indian citizen ‘who is not a Muslim, Christian, Parsi or Jew by religion’ (art. 2 [1]). In 1956 The Hindu Marriage Act was followed by The Hindu Succession Act, The Hindu Minority and Guardianship Act, and The Hindu Adoptions and Maintenance Act. All four acts state, in almost identical terms, that:

Save as otherwise expressly provided in this Act,—

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with regard to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

The impact of these modern Acts, overriding Hindu law as it had been practiced for a century and a half, is still a matter of dispute. The point is that, officially, they made large sections of traditional Hindu law obsolete. Any Hindu (in the broad sense) can legally marry any other Hindu, monogamous marriage becomes the rule of law, and so do annulment of marriage, divorce, and remarriage for women; succession to inheritance is made uniform, male and female heirs are treated equally; and women, who were accorded a limited estate in the past, now become full owners of their property and can dispose of it as they please.

There remains, however, an undetermined residue of Hindu law for which the Acts do not make any provision; in areas such as joint family law the Courts continue to administer Hindu law as it was prior to 1955 (Derrett 1963).

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