Indian Legal Theory

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
TABLE OF CONTENTS
Acknowledgement....................................................................................................2 Research Methodology.............................................................................................3 I. II. III. IV. V. VI. VII. VIII. IX. X. INTRODUCTION..............................................................................5 INDIAN CLASSICAL LEGAL TRADITION.......................................8 DHARMA........................................................................................10 LEGAL TEXTS IN ANCIENT INDIA16 INDIAN LEGAL THEORY: EVOLUTION........................................20 ANCIENT PERIOD .........................................................................22 MEDIVAL PERIOD..........................................................................24 MODERN PERIOD...........................................................................29 CONCLUSION AND SUGGESTION.................................................35 BIBLIOGRAPHY..............................................................................36
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ACKNOWLEDGEMENT
I feel myself highly delighted, as it gives me incredible pleasure to present a research work on INDIAN LEGAL THEORY. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more lumino sit y to this topic. I am grateful to my facult y Mr. MANORANJAN KUMAR who has given me an idea and encourage me to venture this pro ject. I would like to thank librarian o f CNLU for their interest in providing me a good back up material And finally yet importantly I would like to thank my parents for the financial support.
SHIKHA KUMARI V semester, 3rd year:
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RESEARCH METHODOLOGY
Aims and Objectives:

The aim of the project is to present a detailed study o f the topic INDIAN LEGAL THEORY
Scope and Limitations:

The five point on which special emphasis has been given in this research are: Extensive research Thorough study of books Broad research of the subject via internet access Complete documentation Minute detailing
Sources of Data:
The fo llowing secondary sources of data have been used in the project1. Art icles 2. Books 3. Websites
Method of Writing:
The method of writ ing fo llowed in the course of this research paper is primarily analyt ical.
Mode of Citation:The researcher has followed a uniform mode of citat ion throughout the
course of this research paper.
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INTRODUCTION
Indias legal system presents the most extensive and diverse written law in the world. Law in India emerged fro m classical traditions rather than a construction o f a public body or state and the system was considered as very near to people. The classical legal tradit ions of India was exclusively recorded in the Sanskrit texts and believed to have developed by the ancient sages. These tradit ions are widely understood as Hindu law which originated fro m co mmunit y principles and not from a state polit y. Hindu law refers to the system of personal laws (marriage, adoption and inheritance) applied to Hindus in India. Very recent ly, Donald Davis has give n more convincing definit io n of Hindu law as variegated grouping of local legal systems that had different rules and procedures of law but that were united by a co mmo n jurisprudence or lega l theory represented by Dharmasastra literatures. This definit io n suggests that Hindu law is a system o f religious law, deeply rooted in a legal theory, i.e., the concept of Dharma. The significance of the Dharma, po inted out by Kane, as the privileges, dut ies and obligat ions o f a man, his standard o f conduct as a member o f Aryan co mmunit y, as a member o f one of the castes, as a person in particular stage of life1. Dharma is generally understood as the concept, co mprises o f rules of moralit y, conduct and good behavior, religious principles, legal precepts and all that supports the harmo nious funct ioning of human relationships2. This project is an attempt to trace the recent historiographical interpretations on the nature, evolut ion and sources of Hindu law and Dharma which passed through several transit ions of meaning. The discussed texts in classical Indian tradit ions deal wit h the dharmic way of life. These ancient concerns of Hindu law and Dharma became part of the official law of the state during the Muslim rule in India. Muslim rulers approach here was more secular towards their subjects of different fait hs, letting them cont inue wit h their own co mmunit y concerns. What we have to note here is, as Hooker has po inted out Hindu law and Dharma became more personalized and secular3. This personalized agenda of Muslim rulers in dealing wit h Hindu law and Dharma continued in t he Brit ish period as Lord Warren Hastings has init iated in the Legal Regulations o f
1 2
(Kane, 1968, Vol.1:3) (Buxbaum, 1969:235) 3 (Hooker, 1975) INDIAN LEGAL THEORY Page 5
1772 that, that in all suits regarding inheritance, marriage, caste and other religious issues, the laws of Sastras with respect to Hindus and Laws of Koran with respect to Muslims shall be invariably adhered to4. Derret calls this concerns of the Brit ish in India as the creat ion of Anglo Hindu law 5and Rudo lph calls it as cosmopolit an, high culture law6. In a more theoretical perspective, this co-existence o f the state law and concurrent personal laws o f different communit ies, suggests a structured legal pluralis m where the meet ing of western legal system and Indian legal traditions took place. However, when the Brit ish co lonial state took steps to introduce Indian Penal Code in 1860s, many areas o f law in the Indian classical tradit ions had been taken out and the Hindu law had been pushed into an enclave, the realm o f the Hindu personal law7. While the Hindu laws previously applied to a variety o f topics, now became confined "to the personal law matters (family law inheritance, successio n, caste, religious endowments 8. By the end of Brit ish co lonialis m in India, as Bernard Cohn has pointed out, authoritative decisio ns in English had co mpletely transformed 'Hindu law' into a form o f English case law. What had started with Warren Hast ings as a search for the 'ancient Indian constitution" ended up wit h what they had so much wanted to avoid--with English law as the law of India9. This Brit ish constructed legal sphere continued even in the post-colonial period. Apart fro m the considerations of Gandhian village panchayat model, there was no concerted effort to inst itute an indigenous law based on the Dharmasastras in the independent India. At this juncture, it can be argued that the focus was more shift ing towards a statute-based legal syste m compared to the value-based classical Indian legal traditions. EVOLUTION OF LAW History comprises o f the growth, evo lution and development of the legal system in the country and sets forth the historical process whereby a legal system has come to be what it is over time. The legal system o f a country at a given t ime is not the creat ion o f one man or of one day but is
4 5
(Firminger, 2001 (1812):18) Derrett, 1968: 542) 6 (Rudolph, 1967) 7 (Menski:243) 8 Galanter, 1989:18 9 (Cohn,1997:75)
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the cumulat ive fruit of the endeavor, experience, thoughtful planning and patient labour of a large number of people through generat ions. Wit h the coming of the Brit ish to India, the legal system o f India changed fro m what it was in the Mughal period where mainly the Islamic law was fo llowed. The legal system currently in India bears a very close resemblance to what the Brit ish left us with. As per the needs o f the changing times changes and amendments were made, but the procedure which is fo llowed not has its roots in the era o f Brit ish-India. Litt le did the traders of the English East India Co mpany while establishing their trade in India know that they would end up establishing their rule for about 200 years here. But the evo lut ion o f law as it is today did not come about in one go altogether. It was the Presidency Towns individually t hat were first affected by this change in hands o f the governance o f India after which the steps towards amalgamation o f the judicial system were taken by the Charters of 1726 and 1753. To improve upon this, under the Regulat ing Act of 1773 Supreme Courts in the Presidency Towns and then under the Act of 1798 the Recorders Courts at Madras and Bo mbay were established. These were ult imately replaced by t he establishment of the High Courts under the Act of 1861, which are still running in the country. It was only after independence in 1950 that the Supreme Court was established. Reforms and codificat ions were made in the pre and post independence eras and are st ill cont inuing. Thus law, as we know today has evo lved through a complex procedure which is discussed in detail herein below.
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INDIAN CLASSICAL LEGAL TRADITIONS
The study on the classical legal tradit ions o f India attracted the interests of the scho lars and administrators throughout the course of Indian history fro m ancient to colonial. Several attempts were made to study and glorify Indian traditio ns during the early co lonial period. The Orientalists and Indologists of the Brit ish Indian administration, in order to administer the colonized territories and to become familiar wit h the laws and habits of the country, attempted to translate and study about Indian literatures10. But the English translat ions made the cardina l mistake of translat ing the key term of Hindu Law, Dharma, simply as law o f the Indians. The underlying fact behind these t ypes of characterizatio ns is that the western notions o f law always were seen alo ng wit h the divine co mmandments in the scripture, like Ten commandments and the Jewish Law and also codified law like Roman and canon law. According to Donald Davis, these western notions o f sacred law, inst ituted through legis lative acts and inst itutions of a state or they may be emerged as more or less explicit ly formalized standards, derived fro m the customs or usages o f a societ y or particular groups therein. The western scho larly concept ions in India thus assumed that Manu was the great law giver o f the Hindus, an equivalent of Moses or Muhammad. It is in this mistaken belief that later interpretations of Indian societ y developed. Earlier, there were also attempts fro m the Brit ish officials, especially James Mill, who asserted that Indian past had been that of an unchanging, static societ y dominated by despotic rulers. In sharp crit icisms to Mills depict ion o f Indian society, Indian historians attempted to glorify the classical nature of Indian societ y. Wit hin these interpretations, both fro m western and Indian writers, the terms like classical India and Hindu law arose as the basis of Indian societ y. Ever since the publication o f Classical Law in India by Rober Lingat, the study of Indian lega l traditions has attracted the interests of many scho lars. Lingat has stated that, while the constraining power of legalit y is central to modern Western tradit ions, in India, it is mora l authority which is at the core of the rule o f law11. This moral authorit y in India is defined by customs or traditions, but in the west, it requires an administrative system of justice as a funct ion
10 11
(Thapar, 1968:318-320) (Lingat, 1973:257)
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of legalit y. However the Sanskrit based foundat ions of classical law in India and Anglo-Hindu legal interferences and developments made serious research on classical law in India irrelevant to the scho lars. Nevertheless, recent scho larly attempts like that of Dhavan, Larson and Menski, tried to develop the relevance and the importance of classical legal tradit ions and the urgent need for better understanding.
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DHARMA
THE CONCEPT OF DHARMA Lingats writ ings have suggested the importance of moral authorit y and dut y or what is known as Dharma in the classical Indian tradit ions. He has translated the word Dharma as dut y which in effect expresses conformit y wit h what Hindus regard as the natural order of things. While comment ing on Dharma and Indian societ y, J.D.M. Derret has stated that, it is peculiar to Indian societ y and is social cement which ties communit ies permanent ly. In a more theoretical understanding of the term Dharma in India, Donald Davis has stated that Dharma is the term most closely associated with sacred law, both as an abstract notion of righteousness or just ice, and in more concrete terms as the collective name for specific rules of social conduct and ritual action laid down in revealed scripture (the Veda). Dharma is considered as the natural universal laws whose observance enables humans to be contented and happy, and to save himself fro m degradation and suffering. Dharma is the moral law combined with spiritual discipline that guides one's life. However, Dharma was not a positive law, civil law, private law or public law in the modern sense of the term. It was a in fact a much wider term including religio n, social, moral, domest ic and other regulat ions including legal rules as well. In classical Indian thought, deviat ion fro m the path of Dharma will result the onset of disorder, anarchy or what is called arajakata12. This is to say that the classical Indian legal tradit ions always stressed the centralit y of dhrama and righteous conduct in life. ASPECTS OF DHARMA: ACHARA, VYAVAHARA, PRAYASCHITTA Dharma in India is mainly consisted of three important aspects such as Acharas (customs and rituals), Vyavaharas (legal procedures and dispute settlement) and Prayaschittas (penances). Donald Davis has given an interesting account of this tripart ite scheme of Dharma as, Acara is the Dharma where things are right, where as Vyavaharas and Prayaschittas are Dharmas for when things are wrong . Among the above three aspects of Dharma, Acharas is the most
12
(Roy,1999:8)
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important sphere of law that governed the populat ion in ancient India. All legal texts and interpretations associated with Dharma in India recognize the importance of Acara or the customary law. Acara is defined generally as the ideal mode of conduct, but in more sense of the term, it is defined as any mode of conduct which was practiced by the people of a given communit y came to be known as acara13. In more sense of the term, Donald Davis has stated that acara refers precisely to the caste, life stage, and co mmunit y-bound rules that together constitute the substant ive rules of law pertinent to an individual and to the groups to which he or she belo ngs. This naturally raises a question, if Achara is the particular practices of people, what is the meaning of custom? Both the phrases have same importance in Dharma where the Custom can be understood as what is actually practiced by people and Achara refers to what ought to be practiced and has a strongly normat ive character much more than a habit. To indicate its normative character Donald Davis had earlier stated that Acara denotes specific acts fro m the past that are drawn upon as authoritative models for present legal acts. In this way, Acharas represents the actual practice of law where as laws found in the literature represent the theoretical pract ice.
Vyavaharas were the concept of dispute settlements or legal procedures. To address the western audiences, the term Vyavahara was often blandly translated as lit igat ion. But in classical Hindu law, this does not convey the same meaning as it was understood by the western thinkers. In another translation, Vyavahara is understood as legal procedure rather than lit igat ion or law suits14. While examining the importance of Vyavaharas in classical Hindu legal tradit ions, one has to understand that the concept echoes an increased need for state law and judicial intervent ion. But the rule of Dharma is not confined only to the psychic realm, to the effort of overcoming passio n and generating appropriate psychic motivation. Rule of Dharma needs an appropriate social and inst itutional arrangement. The translat ions say, legal procedure came into being at the time when Dharma was lost among men. The overseer of legal procedures is the
13 14
(Jhingran:1989:75) (Larivi`ere, 1989, Vo.2:3)
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king; he has been made the rod-bearer15. The term Vyavahara simply increases the input of the state in the administration of legal rules. The concept of Vyavahara is also elaborated as it consisted of four stages, plaint, answer, examinat ion of evidence and judgment.
Prayaschitta is the most important aspect of Dharma which marked its uniqueness compared to the other legal codes in the world. The judgments and punishments in India is arranged in a way to provide the prisoner means to remove the sins. The culprit is supposed to perform Prayaschitta during the course of his imprisonment for Atmasudhi or self purification16. According to Banerjee, Prayaschitta is meant to be used to avert the sinners fall into and allows for the sinner to be acceptable for social interact ion in that he can partake in social act ivit ies within the societ y17. However, Prayaschita in ancient India had more implications as it was supposed to expiate ones sin by making it public and thereby making one feel ashamed o f it and refrain fro m doing it again. In more sense of the act, penance meant a real mental transformat ion. EVOLUTION OF DHARMA: FROM MACROCOSMIC TO MICROCOSMIC From the above ment ioned historiographical accounts of Dharma, it is certain that Dharma is nothing short of moral value and the root aspect of Indian societ y. In the ancient Indian societ y, the concept of Dharma was developed and maintained in two ways: by means of the performance of sacrifices according to Vedic injunct ions and by means of individuals living according to their ritual social status and doing what they should do to maintain the optimum level o f status quo in the social hierarchy. A more theoretical reference of this was developed by Lingat when he pointed out Dharma as a sacrificial act ensuring cosmic order. Performing rituals and sacrifices were regarded as major means of strengthening and upholding cosmic Order as well as human order.
Lingats references about Dharma and cosmic order have received attention of a variet y of scho lars who tried to understand the evo lut ion of Dharma differently. Hamilton has attempted to
15 16
(Rocher, 2002:4) (Bose, 1990:81) 17 (Banerjee, 1999:90-92)
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understand this in two levels. In the first level, the emphasis is more on the conceptualizat ion of macrocosmic order of superhuman standard which binds all individuals, rulers as well as all divine beings. The second level const itutes microcosmic aspect of Dharma which refers to the duties o f the individual, in other words, it is individual Dharma or ones own Dharma. This is more realist ic secular belief system which envisages effects fro m all kinds of human act ion, not just ritual performance. In the microcosmic dimensio n, human beings are visualized as surrendering their rights to the state in return for their protection. Macrocosmic vedic order was ult imately regulated outside the human sphere, and at a level beyo nd human control but closely linked to human act ivit y. In the microcosmic level, Dharma experienced new challenges as it shifted towards socio-legal approaches rather than natural approach. The ideal now has beco me more self-controlled order of an individual maintained through constant, conscious subordinat ion of personal desires. A serious examinat ion of these po ints of references has developed by Werner Menski where Dharma is considered as the point of connect ion between the macrocosmic superhuman ho list ic understanding of law and the state operated legal procedural law. The important aspect of this demonstration is the development of Dharma from macrocosmic universal order in the early Vedic systems to state controlled, formal dispute processing understanding in the late and post classical periods. Menski has shown that the key to classical Hindu law centered on the models of cosmic order, macrocosmic as well as microcosmic, providing an intellectual continuum throughout the history of Hindu societ ies and legal systems. The ideal is an ordered universe, in macrocosmic and microcosmic dimensio ns, a kind of ecologically sound symbio sis in which every co mponent part plays it s proper role. Menskis definit io ns suggested that Hindu law and Dharma developed fro m the macrocosmic universal order (rta) of the vedic system to microcosmic self-controlled order (Dharma) of classical period. In the vedic system, the prominence was more on macrocosmic superhuman order rather than on the duties of the individual, which only beco me central in the classical period with a shift of emphasis towards Dharma.
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SPECIALIZED DHARMAS As Hindu law and Dharma moved fro m macrocosmic rita to microcosmic, different kinds of specialized Dharma came to be recognised, such as every individuals obligat ion (svadharma), womens dut y (str dharma), the rulers set of duties (rajdharma), all wit hin the all-enco mpassing var asramadharma ideo logy, so that everyones caste status and stage of life have a bearing on Dharma. In var asramadharma value and necessit y are combined wit hin the co mpass of each human life. The asramas are student, householder, retiree and renunciate. According to Donald Davis, this categorization was important because it signals a subordination o f legal procedure to a more significant understanding of the structure of Dharma in human co mmunit ies that emphasizes the ritual effects, the embedded hierarchies, and the contextualit y o f Dharma in all times and places. This ideal is the default notion of Dharma underlying all o f Dharmasastras. Hindu law and Dharma developed from the macrocosmic universal order of the early classical system did not change under Islamic and Brit ish empires. Even though Hindu law was has been reformed and secularized under modern Indian law, the spirit of Hindu law are found not to be controllable by modern state law. However modern Hindu law appears as a significant law designed to promote national spirit and development of the state. SOURCES OF DHARMA In the discussio n of classical law in the last section, our attention was confined to the definit io n, aspects and evo lution o f Hindu law and Dharma. This section explores the sources and law books in ancient India in which these notions of Hindu law and Dharma are found. The sources of Dharma extend fro m Vedas to classical Sanskrit literature. This ranges from four important Vedas and their commentaries, Upanishads and Epics and more comprehensively, the Dharmasastras, Arthasastras and classical literatures comprising of prose, poetry and drama. Another important source of law in ancient India is customs. Custom is regarded as a just foundat ion of many laws in every system o f jurisprudence. Interestingly in ancient India, the textualized legal rules of the sacred texts were used only rarely co mpared to the use of customs and local laws in the societ y. The sacred texts were consulted as direct sources of law only in colonial and modern India. This irony is because of the fact that, in ancient India, customs and
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social values had powerful impact on law. It is as Robert Lingat writes, custom is a social pheno menon, while sastric law has a transcendent character. While examining the sources of ancient law in India, this sect ion also tries to examine this irony o f two different legal sources of the people.
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LEGAL TEXTS IN ANCIENT INDIA
The sources of Hindu law and Dharma are placed in two categories: Shruti and Smrit i literatures. Both Shruti and smrit i texts represent categories of texts that are used to establish the rule of law within the Hindu tradit ion. But, while Shruti is considered as divine origin or that which was heard, Smrit i texts are human co mposit ions or that which was remembered. The smrit is or the human co mposit ions lay down rules, regulat ions, and laws governing the conduct of individuals in ancient India. In a more theoretical sense, Ren Gunon has given the dist inct ion between the terms Shruti and Smrit ias it is equivalent to that between pure and direct intellectual intuit io n on the one hand, and reflected consciousness of the rational order on the other hand, the former applying exclusively to the domain o f metaphysical principles, the latter exercising itself upon objects of knowledge in the individual sphere. Though this definit ion seems co mplex, it points out the metaphys ical and superhuman character of Shruti texts and more rational and enlightened aspect of Sm tis. The fo llowing sect ion will examine these texts separately.
SHRUTI AND SMRITITEXTS
Shruti texts were based on divine revelat ion, heard and transmitted by early sages. The revealed texts encompass the four Vedas gveda, Yajur veda, Samaveda and Atharvaveda, the
Brahma as (ritual treatises), the Ara yakas (Books of the forest), and the Upani das (philo sophic elaborations on the Vedas). Three characterist ics are tradit ionally held to dist inguish Shruti texts. First, Shruti const itutes a circumscribed, bounded category o f texts that is, the vedic texts. Second, these texts, although transmitted by sages, who saw and heard them, are generally held to be eternal and uncreated, not composed by any human agent. Third, study o f the Vedic literatures has focused on met iculous preservat ion o f the purit y o f the Vedic mantras which are held to be intrinsically powerful and efficacious. When we speak about law and just ice or the code of conduct found in the Shrut i texts, it is interest ing to start with the references o f
Robert Lingat, who has commented that the Vedas do not even include a single posit ive precept which could be used direct ly as a rule o f conduct. According to Donald Davis, there is no direct connection of religious and legal dut ies wit h the Shruti, but the connect ion should be imagined as one of inspirat ion and it is held to be the spirit of the law in Hinduis m. In other words, Shruti exists as a source for all Hindu Law wit hout comment ing any suggest ions and specifics. All later legal texts agree that the Shrutis are the source of Dharma in all aspects of religious, legal, ethical and social dut ies. However, it is certain that in practice, Hindu acquires his knowledge of religion and law almost exclusively t hrough Smrit itexts.
Smrit itexts are educat ional texts that were composed after the veda which deal wit h a variet y o f topics including law, lit erature, rituals, astronomy and systems o f philosophy. Smrit i texts which remain open to change, serve mainly as interpretations of the Shrut i materials that help people access and understand. However the class of Smrit i texts may be defined in terms of three characterist ics that are in dist inct opposite to that of Shruti. First Smrit i const itutes a fluid, dynamic, open-ended category o f texts. Second, in contrast to Shruti, these texts are believed to been co mposed by personal authors, either human or devine. Third, the study of Smrit itexts invo lves not only rote recitation of verses, but also an understanding and interpretation o f their content and meaning. The texts belo nged to smriti genre comprised of Dharmasastra texts, of which the mo st important is Manusmrit i, manual o f statecraft and legal system known as Arthasastra, the epics Mahabharata and Ramaya a and the sacred narratives o f Pura as. It is said that Smrit iliterature elaborates, interprets, and codifies Vedic thought, but, being derivat ive, is considered less authoritative than the Shruti. The Smrit itexts are clearly not just law books; they remain premised on ho list ic visio ns and the importance of individual self-controlled action within the context of co mmunit ies and show no direct concern for state law. Generally the Smrit itexts can be classified into five sect ions: Dharmasutras, Dharmasastras, Bha yas or the commentaries on the first two genres, Nibandhas of Digests and the Epics and Pura as. The fo llo wing sect ions will examine these Smrit itexts and its legal aspects in detail. DHARMASUTRAS AND DHARMASASTRAS
The first four books in the Smrit i literature are commo nly known as Dharmasutras. According to Lingat, Dharmasutras are works on Dharma written in the Sutra form, that is to say in the for m of aphorisms which condense the teachings imparted by a master and were probably intended to be learned by heart by his disciples. It is said that, while Dharmasutras are the ordinances written in condensed prose, the Dharamsastras are written in verse. Interestingly, there are around thirt y five Dharmasustras, but the Dharmasutras like Gautama, Baudhayana, Vasishtha and Apastamba are considered as the major and dominant ones. Sailendra Nath Sen has po inted out that these legal texts are in agreement on many po ints, but somet imes differ as to laws the y lay down. According to Ram Sharan Sharma, Dharmasutras are the earliest texts dealing wit h the duties of the King and four varnas or social orders and provide laws regarding taxat ion and protection of property, family and person. Olivelle has given more convincing aspects o f Dharmasutras as the elaborate discussio n of the rules and dut ies o f the people at different stages of life like studenthood, househo ldership, retirement and renunciat ion. The nature of Dharmasutras is normat ive and this reason makes room for a scho larly debate. Some scho lars argue that that these sources are unreliable and worthless for historical purposes instead to use archaeo logical, inscript ional, and art historical materials. However, Olivelle argues that the dismissal o f normat ive texts is unwise and betrays the spirit o f these documents.
Dharmasastras are the most important texts in the Smrit i literature. The exact origin of the Dharmasastras is not known. According to S.C.Banerjee, when Dharmsutras were proved to be inadequate for the societ y, the necessit y was felt for composing larger works and the verse instead of terse aphorisms was chosen as the convenient medium (Banerjee, 1999:4). Literally, there are hundreds of Dharamasastra texts and many more co mmentaries and digests. But the smrit is like Manu, Yajanvalkya, B haspat i, Narada and Kat yayana are the most popular Dharmasastra texts. Generally, the Dharmasastra texts instruct the people o f their conduct at different stages of life and their duties according to their varnas. According to Charles Drekmeier, these texts expand and systemat ize the social and religious regulat ions o f the orthodox Brahminic culture and are accepted as authentic guides to law, custom and dutY.
MANUSMRITI AND YAJNAVALKYASMRITI
Manusmrit i also known as the ManavaDharmasastras is the most well known and was probably codified around the first century CE by a sage named Manu. However the actual authorship o f Manusmrit i is in debate as Kanes History o f Dharmasastras says that Manu is probably the father o f the human race and a semi divine sage who received the laws and regulat ions fro m God. Scholars are also po inting out the possibilit y of the composit io n of Manusmrit i in different stages because o f the contradictory statements found in the chapters of the text. For example, while Manusmrit i allows Brahamanas to take a Sudra wife in one chapter, it forbids the act in another chapter. In the similar lines, Manusmrit i upho lds the social, legal and moral codes concerning wo men in one occasio n, but in another occasio n, he attacked their freedo m and suggested a husband deifying ideo logy for the women. These contradictory statements in Manusmrit i indicate that this work could have been written by more than one hand. Despite o f all these crit ical evaluat ions on Manusmrit i, this text is has an extra ordinary significance as a socioreligious work for the Hindus in all t imes. It is the most important treatise on societ y, religio n and statecraft. It is the first work which codified the law ancient India and for the first time created a polit ical theory of a social order, government, law and just ice. An array o f crit ica l evaluat ion have been made by the scho lars on Manusmrit i. While the Brit ish scho lar Max Muller and legal scho lar Kane appreciated Manus philo sophy o f social order, Ambedkar condemned Manusmrit i as a charter of bondage for untouchables in India. According to Ambedkar, Manusmrit i perpetuated the social, econo mic, religious and po lit ical slavery o f the untouchables. Yajnavalkyasmrit i is the second most important Dharmasastra text composed by Yajnavalkya himself between first century B.C and third century A.D. Yajnavalkyasmrit i is the only text in the Dharmasastra which is found in more organized and systemat ic format through its divisio n o f Acharas, Vyavaharas and Prayaschittas. There are numerous verses in Yajnavalkya that show
remarkable agreement with Manusmrit i. But there are several po ints in which Yajnavalkya differs fro m Manu and shows in general more advanced state of thought than Manu. For example, Yajnavalkya treats the wo men as full legal persona, and it fo llows her to inherit property. Yajnavalkya favoured gambling under the auspices of the Government for boosting revenue as against Manu opposing it. Because of it s clear statement of principles, its breadth visio n and it s co mparative impart ialit y of the claims o f both sexes and the different varnas, Yajnavalkya smrit i has beco me the guiding work for the who le of India.
There are other later Smrit is which are worth to be mentioned here such as NaradaSmrit iB haspat ism t i, Vis uSmrit iand KatyayanaSmrit iThese texts have eit her focused on judicial procedures (Vyavaharas) or paid full tribute to Manusmrit i. While we talk about sacred texts bearing an influence on law in Hindu tradit ion, it is also very important to note about Commentaries and Digests, the scho last ic tradition that interpreted and elaborated on the Smrit itexts. These texts are generally found as hypothetical examples, theoretical disquisit io ns and a variet y o f opinio ns on Dharmasastra texts. Donald Davis is o f the view that these works provide an essent ial interpretative for the Smrit i texts and in many cases offer original insights on old problems. Similarly, the Mahabharata contains many matters that are in the Dharma Sastras, so one could think that it is a possibilit y that the epics are a way of teaching the Hindus on how to live their life in an easily understandable way through the narrative. A more secular manifestation of Indian legal thinking can be found in Kaut ilyas Arhtasastra. Kautilya gives ent irely new treatment of law as he deals wit h the rights, duties and responsibilit ies of the King in the administration of the state including judicial administration. Arthasastra also regards Dharma as the foundat ion stone of the state as well as in the relations between the states.
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INDIAN LEGAL THEORY: EVOLUTION The societ ies in the beginning were rudimentary and so were the laws of the societ ies. Laws have grown with the growth of societ y. This establishes a relat ionship between law and societ y, where law is an instrument of social change, and as Pound would put it law must be stable, but it must not stand st ill. To comprehend, understand, and appreciate the present legal system adequately, it is necessary to acquire a back-ground knowledge of the course of growth and development of the legal history. A peculiar feature of the legal development in India was that for long the government endeavored to create a system of courts without ever attempt ing to develop a body of law. Conscious efforts to remove these defects were made by developing a coherent body of law. But the coherent system o f law was developed only after the process of codificat ion. Law then became more territorial and resulted in the abridgment of the differences o f law between the resulted in the applicat ion of uniform law throughout the country. The independence of the judiciary is fairly well assured by t he const itution itself and adequate precautions have bee n taken to help the judiciary to discharge their functions effect ively. Law in the country is now most ly codified and is uniform throughout the country and the object ive is now to update, reform and bring the law in conformit y wit h the new social condit io ns prevailing in the country .In conclusio n, we may say that the Indian legal system provides all the machinery for the expansio n and preservat ion of the law.
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ANCIENT PERIOD India has a go lden history of over 5000 years. Therefore a comprehensive study o f Indian lega l history comprises of the historical process o f development of legal inst itutions in Hindus and Muslim periods. Pre-Mughal Era The various sources of law relied upon by the kings at that time were shrutis, smrit is, puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmrit i were influent ial treatises in India, texts that were considered authoritative legal guidance. Ancient India represented a dist inct tradition of law, and had a historically independent school o f legal theory and pract ice. The po lit ical structure in the Vedic Period consisted of kingdoms, eac h tribe forming a separate kingdo m. The basic unit of polit ical organizat ion was the kula (family). A number of kulas formed a grama (village), Gramani being the head. A group of gramas formed a vis (clan) and a number of vis formed the jana (tribe). The leader was Rajan (the Vedic King). The king (raja) was the supreme head of the legislative, execut ive and judiciary branches. The members o f the council o f minister could give advice to the king, but final decis io ns were left to the king. The ministers and other officials were directly appo inted by the king. The sabha and the samit hi were responsible for the administration of justice at the village level.
According to Brihaspat i Smirit i, there was a hierarchy o f courts in Ancient India beginning wit h the family Courts and ending wit h the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Just ice who was called Praadivivaka, or adhyaksha; and at the top was the Kings court. Early in this period, which finally culminated int o the creat ion of the Gupta Empire, relat ions with ancient Greece and Ro me were not infrequent. The appearances of similar fundamental
inst itutions o f internat ional law in various parts of the world show that they are inherent in internat ional societ y, irrespect ive of culture and tradit ion.
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MEDIVAL PERIOD 1600-1726 The charter of 1600 established the English East India Co mpany in India. as per the charter of 1661 the English and the Indians residing under the Company came under its jurisdict ion. From the period ranging fro m 1661 till 1726, laws of equit y and just ice in conformit y wit h the laws in England were fo llowed. There was no codified law. In Calcutta, the judicial system was based on the Co mpanys authority as a zamindar . This continued till the charter of 1726 was passed. Before Madras attained the posit ion o f a Presidency in 1665 it had two courts namely, the Choultry Court and the Court of the Agent and Council. By the charter of 1668 the Company was conferred powers to make laws for the island of Bombay. From this period till the passing of the Charter of 1726, there were civil and criminal courts in these presidencies. In madras, there was the choultry court, the mayors court and the admiralt y court as well. On the other hand, in Bo mbay till 1726 judicial systems were not stable and kept changing. Earlier there were courts like the Court of Judicature (1672) which dealt wit h civil and criminal cases and matters of probates and testaments, and a Court of Conscience to decide petty cases. There was a system of appeals as well. In madras the appeals fro m the Mayors Court were filed to the Governor and Council. On the other hand, Bombay had Deput y-Governor and Council as its appellate Court. In Bombay this system elapsed due to lack o f independence of the judiciary. In the fo llowing judicial system o f Bo mbay an admiralt y court was established wit h a JudgeAdvocate as its head. This court apart from its exist ing powers enjo yed civil and crimina l
jurisdict ion. Later a court of Judicature was established under this system after which the Admiralt y Court lost its ground. The Admiralt y court in Madras also became irregular by this time. Another system came about in 1718 in Bo mbay and this gave representation to the Indians as well by appo int ing 4 Indian Judges, known as Black Justices, in the Court. Charter of 1726 In the subsequent years the Charter of 1726 was passed which granted special powers to the Company as was requested by it. Under this Charter the Mayors Court was established. This superseded all the other courts of Bombay, Madras and Calcutta. This was a court of record. The Laws under this Charter were also applied in conformit y with the laws in England on the principles of equit y and justice. Appeals fro m this court could be filed in the court of Governor and Council and further in the court of King-in-Council in England. Requisite independence was assured to the Mayors Courts but this alo ng with their strict adherence to English laws became the cause of some difficult ies like hostilit y between the Mayor and the Governor and Council, and non clarit y regarding jurisdiction o f the Mayors Court in respect of the nat ives. The judiciary did not possess expert staff for administering just ice and the executive did not have respect for the judiciary This system remained suspended while the French had occupied Madras which they later surrendered in 1749. Then the Charter of 1753 was passed in order to remove the difficult ies o f the preceding Charter.
This charter put the Mayor under the subject ion of the Governor and Council in order to avoid disputes between the two. Suits and act ions between the nat ives were expressly excluded fro m the jurisdict ion of the Mayors Court unless both parties submitted them to its determinat ion, and a Court of Requests was created to hear small civil cases. The defects of this Charter can be
summarized by ment ioning the execut ive ridden judiciary, failure of impartial judgment, judiciary suffering from lack of legal knowledge, limitat ion of the jurisdict ion of the Courts to Presidency Towns, and no representation o f Indian Judges as opposed to earlier provisio ns in some courts in Bombay.
The Co mpanys financial break-down was the immediate cause for the enforcement of the Regulating Act of 1773. Section 13 of the Act provided for the establishment of a Supreme Court at Calcutta. The court, also a court of record with the power to punish for its contempt, had civil, equit y, criminal, ecclesiast ical and admiralt y jurisdict ion. Appeals against decisio ns o f this Court and through the Court could be filed in all civil and criminal cases respectively before the Kingin-Council. The establishment of this Court was a welco me as it was the first Brit ish Court in India consist ing of lawyers, its jurisdict ion was so wise that it covered all kinds o f legal wrongs and that since all Brit ish subject came under its jurisdict ion it ensured rule of law. The Act of Settlement 1781 aimed at removing the ambiguit ies created by the former Act, but was not successful in its ent irety. Wit h the increase in activit ies o f the Co mpany an urgent need o f a lawyer-judge was felt to deal with new cases. The Charter in 1798 did the needful by establishing the Recorders Court at Madras and Bo mbay. This Court had similar jurisdict ion and was subject to the same restrict ions as the Supreme Court of Calcutta. In 1801 and 1824 Supreme Courts were established in Madras and Bo mbay respectively. The Const itutional powers, funct ions, limit ations and jurisdict ion o f these courts were the same as that of the Supreme Court at Calcutta. A parallel system of judiciary was running in the mo fussil areas. The Co mpany attained the Diwani o f Bengal, Bihar, and Orissa in 1765. As per the plan o f 1772 under Warren Hast ings, the Courts of Original Jurisdict ion were Mo fussil Faujdari Adalat , the court of crimina l jurisdict ion; Mofussil Diwani Adalat , the court of civil jurisdict ion and Small Cause Adalat . Under the Appellate Courts we had Sadar Nizami Adalat , the criminal court of appeals; Sadar
Diwani Adalat , civil court of appeals. The Co llectors started monopolizing the trade in the districts putting the end to this system and giving rise to a new plan of 1774. Under this system, diwan or amil, acted as the judge of the Mofussil Diwani Adalat. The Mofussil areas o f Bengal, Bihar and Orissa were divinded into six districts with a Provincia l Council in each district acting as the Appellate Court. The Council started creating difficult ies and mo nopolizing trade within its jurisdict ion. This led to an end o f this plan as well and a new plan of 1780 was formulated. This plan separated the execut ive fro m the judiciary. Provincial courts were left with the funct ion of co llect ing land revenue only. For civil cases, a Diwani Adalat was established fro m whic h appeals went to the Sardar Diwani Adalat. Though this system assured the independence o f the judiciary there were certain set-backs. For the administration o f criminal just ice in a more efficient manner Warren Hast ings drew a scheme in 1781 under which for apprehending criminals, Judges of the Mo fussil Diwani Adalats were authorised to work as Magistrates and a department headed by the Remembrance o f criminal Courts was opened to look after the working of the said courts. The Governor General Lord Cornwallis (1786-1793) introduced changes in the judicial syste m in 1787, 1790, and 1793. He had thoroughly reorganized the civil and criminal judicial system in India in Bengal, Bihar, and Orissa. He for the first time introduced the principle of administration according to law. In 1787 he merged the revenue co llect ion and power to try the revenue disputes in the same hands of the magistrate who formed the Mal Adalat . Appeals fro m the Mal Adalat had to go to the Governor General. In the year 1790 the polic y of 1787 was annulled. Cornwallis took a great step to improve administration of just ice in the Mo fussil by reforming the criminal law. The scheme had three limbs: at the lowest were the magistrates in the district, then the courts of circuits, and ult imately
there was the Sadar Nizamat Adalat at Calcutta (init ially at Murshidabad). Sadar Nizamat Adalat , put under the control of Governor-General and his Council, was being assisted by the Muslim law o fficers who were to expound the law. But later he brought reforms to the plan in year 1793 and introduced the most famous plan of the history. According to this plan the Supreme Court was divested of all it s powers except for the power of appeal and the Collector was to be given civil as well as revenue cases. Execut ive was estranged fro m the judiciary in it s entiret y. He introduced professio nal lawyers or vakeels in the courts to appear on behalf of the parties to contest their case in order to increase efficiency. Cornwallis did everything on structural and procedural side but he could not do much to reform the substantive law, particularly the criminal law which was based on Muslim law and suffered fro m a number of defects.
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MODERN PERIOD PRE INDEPENDENCE: The year 1861 also const ituted a conspicuous landmark in the process o f development of lega l and judicial inst itutions in India. It was during this year that the steps were taken to establish High Courts at Calcutta, Madras and Bo mbay. These High Courts were not only better instruments of just ice than the preceding courts, but also represented the amalgamat ion of the hit herto exist ing two disparate and dist inct judicial systems, the Co mpanys Courts in the Provinces of Bengal, Bo mbay Madras, and the three Supreme Courts(established by the Ro ya l Charter) in the Presidency town. The High Court enjo yed the same power over all persons and estates. It had ordinary original, appellate and extraordinary original jurisdict ion in civil cases whereas extraordinary and appellant jurisdict ion in criminal cases. While exercising ordinary original jurisdiction the Courts were to apply the law o f equit y of the corresponding Supreme Court. In extraordinary origina l jurisdict ion, the Courts applied the law o f the corresponding local court, whereas in case o f appellate jurisdict ion the Courts applied the law of the court of original case filing. Acting as the court of appeal, reference or revisio n in Criminal cases, the courts applied the Indian Penal Code. The High Courts were empowered to make rules and orders for regulat ing all its proceedings in civil matters. By the subsequent charters High Courts were formed in Allahabad (1875), Patna (1912), Lahore (1865) etc. The King, in the capacit y o f the being regarded as the fountain of just ice in English legal system, could hear any pet ition filed by a party with respect to any matter with the help of the Privy Council. This was later, exercised by the King in the form of appeals and not otherwise. Appeals from India could be filed as of right or with the special leave of the Privy Council. After the mut iny o f 1857 the Companys Government came to an end and the administration of the country was placed in the hands o f the Crown through the Secretary of State for India. For
this purpose the Indian Councils Act, 1861 and 1892 were passed. But these Acts were not enough to satisfy the growth and organized demand for self-government by the Congress. Thus came about the Morley Minto Reforms in the year 1909 with its most important aspect being the increase of the representative element in the Legislat ive Councils and the extensio n o f their powers. But the defects such as lack of true representation, etc led to the passing of the Government of India Act in 1919 which emphasized maximum autonomy to provinces wit h the target of achieving self-government. The dissat isfaction of this led to the Government of India Act, 1935 which aimed to establish federalis m. A Federal Court set up in Delhi was established under this Act. It is believed that out of all the inst itutions set up under the Act; this was proved to be the most successful in operation. The Court was to consist of Chief Just ice and not more that six judges. This Court had original, appellate, and advisory jurisdict ion. The Court had exclusive original jurisdict ion in all disputed between the federation and the units or between the units inter se . An appeal could go to the Privy Council wit hout leave, against the Judgements of the Federa l Court given in its original jurisdict ion and in any other matter with the leave of the Privy Council or of the Federal Court. In the matter of the laws to be applied the very idea of a single o mni-co mpetent legislat ive body in India had been mooted in 1829 by the GovernorGeneral, Lord William Bentick. Administrators at that time wanted to secure uniformit y of law throughout the country and that was unattainable wit h three co-extensive legislat ive powers exist ing in the country. Charter of 1833 helped to receive the object desired. Under this the GovernorGeneral o f Bengal, no minated as Governor-General o f India, proposed a uniform All India Legislat ion and thereby created a Legislat ive Council. The laws made by the Council were applicable on all persons and courts. It had Lord Macaulay appo inted as its first Law Member whose powers were increased by the Charter of 1853. The creation of new council at Calcutta caused the centralizat ion and concentration o f power depriving the Councils of Bo mbay and Madras o f their law-making powers.
An important step towards fulfilling the goal of securing a uniform and simple system of law in India through the process o f integrat ion o f the general system of codes was taken by the Charter Act of 1833. Section 53 provided for the appoint ment of a Law Co mmissio n in India, subsequent ly forming the first commissio n of India with its members appo inted by the GovernorGeneral. The co mmissio ns mo st noteworthy contribut ion was the Penal Code prepared under the guidance o f the Macaulay. The Co mmissio n then drew its attention to the complaint o f the non- Hindu and non- Muslims and thus passed the lex loci report in 1837. The report proposed an Act making a declarat ion that except for Hindus and Muslims all others in Mo fussil were to be put under English substantive Law to the extent that it suited the Indian condit io ns. The Second Law Co mmissio n, formed in 1853 submitted two reports, one dealing with reforms of the judiciary and the other with the reforms o f law. It recommended the amalgamat ion o f the Sadar Adalats and the Supreme Court in all t he presidencies and the adoption o f uniform civil and criminal procedure codes. The proposals o f the first two Commissio ns result ed in the codificat ion o f the Code for civil and criminal cases in the year 1857 and 1861 respectively and the enact ment of the Penal Code in 1860. The Limitat ion Act and the High Courts Act were passed in 1855 and 1861 respectively. The Third Law Co mmissio n proved to be the most successful o f all the Co mmissio ns. It drafted several codes in it s seven reports, the important ones being Indian Successio n Act, Contract Act (1872), Evidence Act, the new Limitation Act and the Divorce Act 1869. Interestingly, the Government at this t ime was also considering the preparation of the Law Digest of cases. But it ended abruptly due to the dispute amongst its members. Many branches of law had been ascertained by now but certain were still un-codified result ing in great deal of co mplexit ies. To this, Lord Salisbury reco mmended the format ion o f a small body to codify the remaining laws and it resulted in the codification of the Transfer of Property Act, the Easement Act, the Trusts Act and revisio n of the exist ing Codes.
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Wit h the expiry o f the Fourth Commissio n, there came an end of a large scale codificat ion undertaken by the Brit ish Government. They had successfully enacted the necessary laws to suit the pressing needs of the country.
POST INDEPENDENCE: The Indian Const ituent Assembly passed the Abo lit io n of Privy Council Jurisdict ion Act in 1949 to abo lish the jurisdict ion of the Privy Council in respect of appeals from India and also to provide for pending appeals. The present day judicial system in India is quite complicated. It consists of a Supreme Court at its top, High Courts in the middle and the Subordinate Courts at the bottom. On January 26, 1950, the Federal Court gave way to the Supreme Court (inaugurated on January 28, 1950) under the new Const itution and thus began an excit ing new era in Indian Legal History. The Supreme Court, highest court of the land enjo ys a very wide jurisdict ion. Under Art icle 131 o f the Const itution the Supreme Court has an exclusive original jurisdiction in cases arise fro m the centre and the constituent States or between the States inter se. The Court even has appellate jurisdict ion in case o f appeals fro m its lower courts. Under article 32 of the Constitution the Court can issue direct ions, orders or writs for enforcement of the fundamental rights granted to the people. The President in case o f matters related to public importance or treaties etc even seek the advice of the Supreme Court. The Supreme Court is a court of record and it has the power to review it s decisio ns. It consists of the Chief Just ice and twent y five other Judges appointed by t he President of the country. The present Chief Just ice is S.H. Kapadia. Second in the hierarchy co me the High Courts. As ment ioned above the first High Court in the country was formed under the Act of 1861. But after independence the High Courts have also beco me the courts of record with appellate and original jurisdict ion. They have been conferred
the power to issue writs. The High Courts have superintendence over all the courts within its territorial jurisdict ion. The decisio ns of the High Courts become precedents and are fo llowed by the courts subordinate to it. Each State has its own High Court and a commo n High Court for two or more States can also be made. Wit h respect to Subordinate Courts, the Judges are appo inted by the Governor and is controlled by the corresponding High Court. Nyaya Panchayats are the judicial co mponent of the Panchayat system and are the lowest ring o f our judiciary. Their co mposit ion and power differs from State to State. They have jurisdict ion over petty civil and criminal cases. Our people did not have much say in the formation and reformat ion o f our law during the Brit is h Period. But soon after independence Dr. Hari Singh Gaur moved a reso lution in the Const ituent Assembly reco mmending the establishment of a statutory law revisio n co mmittee. But later the resolut ion was wit hdrawn on the assurance o f the then Law Minister, Dr. B.R. Ambedkar that a more suitable machinery, would be devised for revising law. This concern was raised time and again and finally a non-official reso lut ion in this regard was moved in the Lok Sabha on 19th November, 1954. This resolut ion was also wit hdrawn after a statement by the then Prime Minister Pt. Jawaharlal Nehru which led to the then Law Minister Shri. C.C. Biswas announcing in the Lok Sabha the decis io n o f the Government of India, to appoint a law co mmissio n, the membership and terms o f reference. The commissio n, which was init ially appo inted upto 31st Decmeber 1956 and then extended fro m time to time upto 3oth September 1958, consisted of 7 members wit h Shri. M.C. Setalvad as its Chairman. The Commissio n submitted fourteen reports in all, thirteen on statutes revisio n, whereas the fourteenth one running into two volumes relates to reform in judicial administration. The report was the result of a lo ng quest ionnaire and deliberat ions held in different parts of the country. One o f the important recommendations of the Co mmissio n was of making Hindi as the
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commo n language throughout for all legal works and the regional languages for district and lower Courts. The fift h report resulted in the Brit ish Statues Repeal Act, 1960 repealing 258 Brit ish Statutes. The Second Law Co mmission (post independence) was appointed in 1958 under the Chairmanship o f Shri. T.L. Venkatarama Aiyer for a period o f three years. The co mmissio n made important reports on law of hire-purchase and marine insurance. The third and fourth Law Commissio ns were under the Chairmanship of Shri. J.L. Kapur and submitted 16 reports and even drafted the Indian Post Office Act, 1898. Various Co mmissio ns have so far produced more than 200 reports and current ly Mr Justice P.V.Reddi, a former Judge o f the Supreme Court of India, has taken over as Chairman, 19th Law Commissio n of India here today is in vogue.
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CONCLUSION AND SUGGESTION This pro ject is an attempt to examine various interpretations on the classical Indian lega l traditions. Scholarly views on classical India suggested the importance of Dharma and sastras as the central theoretical and textual categories that create a moral self in Hinduis m. Various theories on evo lut ion o f Hindu Law and Dharma suggested that it developed from macrocosmic universal order microcosmic sphere where the focus shifted fro m super humans to individuals. Dharma in the later stage became more associated with the duties of the individuals and selfcontrolled order. In the process of this evolut ion, textual understanding o f Hindu law and Dharma developed through the sacred texts of Shruti and Smrit igenres and their co mmentaries and digests. These texts have traditionally formed the corpus of Hindu law, a law which was to govern every parts of a Hindus life. Later, more secular and personal understanding of Hindu law and Dharma developed under Muslim and Brit ish rulers in India. Legal philo sophy has been a neglected aspect of Indian legal scho larship. Wit h notable exceptions, very few Indian scho lars have explored how philosophy illuminates legal quest ions and helps reso lve legal problems. In this context the except ional scho larship of any scho lar will assume considerable significance.
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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA