~ By Justice L. Narasimha Reddy
By and large, not only people in general, but also many in the legal circles, perceive Hindu Law to be the one contained in the Four Enactments brought into existence by the Parliament a few years after independence i.e., the Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. That is considered to be the personal law of the people, who practice Hinduism. This, however, is not a correct perception. If one closely analyses the subject, it emerges that the law pertaining to marriage, succession, adoption and maintenance is a small fraction of the Hindu Law that remained in force, till the invaders have brought into existence their own system of laws. Hindu Law, as it existed then, covered many substantive facets of law, as well as a detailed and perfect procedure of adjudication. Added to that, the entire edifice of Hindu Law rested upon the foundation of Dharma, in contradistinction to need and expediency, that constitute the basis for the English Law. Dharma is a very wider concept and law is a small branch of it. There is no equivalent term for Dharma in English. In a way, it can be said that Dharma is a distilled form of ancient Indian literary wealth, that includes, the Vedas, the Smritis, the Puranas and the commentaries by the sages and the learned people. It is such a typical and complex phenomenon that it is not amenable to any precise definition. Whenever a concept or phenomenon is incapable of being defined, at least one can present it by way of description. In case of Dharma, however, even description would be either inadequate or incomplete. In his treatise, Hindu Law and usage, John D. Mayne said, “According to Hindu conception, Law, in the modern sense, was only a branch of Dharma, a word of widest import and not easily rendered into English.” F.D. Mulla, in “Hindu Law”, observed, “Law, as understood by the Hindu, is a branch of Dharma”
Dharma not only exhorts the people to acquire qualities, such as truthfulness, non-violence, respect to the persons around, and the creation at large, compassion towards the needy, but also to desist from being greedy, dishonesty, unfaithful, etc. In the Encyclopaedia of Hinduism, it is mentioned: “Down the ages, the word (Dharma) has been used to mean religion, law, duty, religion’s right or duty, code of conduct etc. The well-known Dharmashastras are those authored by the Sages like Gouthama, Bhoudhayana, Apastamba, and Vashista.
All of us are aware that Hinduism is one of the oldest civilisations in the world. Over the millennia, the Sages and Rishies have presented to the mankind, the knowledge of highest order, even according to the modern standards; in almost all the fields; be it, Chemistry, Alchemy, Medicine, Astrology, Philosophy, Economics, Astronomy, Political Science, Spirituality, Environmental Science, Sculpture, Architecture, etc. The Sanskrit language in which all these scriptures were written was almost kept out of use, during the alien rule, spread over about 1000 years. It is only in certain cases that the private agencies preserved the literature and continued learning. In certain other cases, countries like Germany were benefited by undertaking study of some of the scriptures and the Sanskrit language. The greatness of the ancient India’s contribution to various fields of study can be illustrated by taking one or two examples.
For the subject of Anatomy, in the undergraduate courses of medicine, almost all over the world, the text book is the one, authored by “Grey”. The Chapter pertaining to “Plastic Surgery” in that book commences with a sentence, which reads ‘the First Plastic Surgery was conducted by Sushrutha’. Albert Einstein, the famous Scientist acknowledged that but for the invention of ‘Zero’ in ancient India,
the progress in the modern science would not have been possible. After conducting a detailed research, one Mr. Emmanuel found that the quadratic equation, whose invention was attributed to Sir Isaac Newton, has, in fact, originated in Kerala. There are hundreds of such examples. It is not without reason that the renowned companies such as, Google are celebrating the centenary of Sreenivasa Ramanujam, the Great Mathematician, who has just provided the taste of ancient Mathematics to the western world.
The achievement of ancient India, in the field of law is almost on the same lines. During the Vedic period, the life of citizens used to be guided by the practices ordained in them. With the passage of time, the necessity to prepare a code of conduct based on the high values, including those enunciated in Vedas was felt. Such codified forms came to be known as Smritis. The first Smriti was handed out to the humanity, by Manu. Now-a-days, we find certain organisations and individuals exhibiting their utmost contempt towards Sage Manu and his works, in the name of progressive thinking and modern culture. It is relevant to mention here that during the Mohammedan’s Rule, excepting the fields of Criminal Law and Personal Law, of those who do not practice in Hinduism, Hindu Law continued to be applied in the legal systems. Similarly, during the British Rule also, principles of Hindu Law were never disregarded. On the other hand, they were viewed with utmost respect and British Judges, particularly, those in the High Courts in India and Privy Council in England made every effort, to understand and analyse them. Almost 50% of the judgments of the Privy Council, during the British Rule dealt with the principles of Hindu Law. Today, we don’t find any parallel to them. For instance, in Sri Bulusu Gurulingaswami vs. Sri Bulusu Ramalakshmamma, XXVI Indian Appeal (1898 and 1899), the Privy Council dealt with the question as to whether the only son of a couple can be given in adoption. Lord Hob House took note of all the Smritis and commentaries on the subject and he commenced his discussion by observing, “the most Revered of all the Rishies or Sages is Manu….”
The discussion undertaken by the Privy Council on a question, which may appear in the so-called modern times to be trivial, is indeed astonishing. Copious reference was made to the Manu Smriti, Dattaka Meemamsa, commentaries by Sages and modern jurists and views of judges in various cases.
“No distress existing, the giver commits a sin on account of the prohibition”. If then the giver commits a sin, the taker who enables him to do it cannot be free from sin; and if the commission of a sin makes the transaction void in law, there can be no gift and consequently no adoption. And yet nobody contends for the legal force of this prohibition. It does not appear that in cases of adoption any inquiry is ever made about the distress of the natural father.”
As regards the law that was being enforced during British Rule, the Bench observed: “…The British rulers of India have in few things been more careful, than in avoiding interference with the religious tenets of the Indian peoples.”
The reason underlying the respect shown to such principles was; in the words of the same learned Judge, “…They (the tenets) provide for the peace and stability of families by imposing limits on attempts to disturb the possession of property and the personal legal status of individuals.” In contrast, in the name of so-called modernism and progressive thinking, we do not hesitate to brand any ancient principle of law or tenet has to retrograde or to condemn it.
The efforts made by the Judges to know the law which is mostly in Sanskrit, can be gauged from the following passage of the same judgment: “Their Lordships have, however, one advantage over their predecessors in these inquiries. The greater attention paid of late years to the study of Sanskrit has brought with it more translations of the sacred Hindu books, and closer examinations of texts previously translated. And in the Allahabad case especially, the appellants’ side was argued in the High Court by Mr. Banerjee, who is stated by the Court to be familiar with Sanskrit, and it is the subject of a very elaborate judgment by Knox J., who is a student of Sanskrit, and, as he tells us, has paid special attention to the books of Manu and Vasishtha.” Many so-called legal luminaries of the modern time would have pitied Justice Knox, for his wasting time in learning Sanskrit and reading books by Manu and Vasishtha.
As mentioned earlier, after Manu, several sages bestowed their attention to the codification of the law. The prominent among such Smritis are those of Yagyavalkya and Katyayana. Yagyavalkya himself referred to as many as 20 Sages from whose work, he took assistance. In addition to the Smritis, treatises like Dattaka Meemamsa, Vyavahara Chandrika, Antakshara Dayabhaga, Vivadha Chintamani, to mention a few, have come into existence. Broadly, four schools, viz., Mithila School, The Bombay School, the Madras School and the Bengal School represented the Hindu Law, with slight difference as to approach on certain aspects in the respective areas.
The greatness and perfection in approach in these Smritis and other ancient texts on law is in no way comparable to the laws that existed during the subsequent periods. For instance, in any and every legal system, adjudication is the principal activity and the outcome of the adjudication is the judgment. To my knowledge there does not exist any precise definition of judgment, either in procedural or in substantive laws, particularly the laws that are in force in India. In his Dharmakosa, Sage Vyasa defined the judgment in the following verse:
Pramanam tat pareekshanam
Nigadam smrithi vakyancha
Yada sabhyam Vinischite
It means that a judgment should contain the gist of
- a) purva, (purva paksha e. plaint),
- b) uttare (uttarapaksha i.e. the statement),
- c) kriyapadam (issues),
- d) pramanam (evidence),
- e) tatparikshanam (its analysis),
- f) nigadam (argument of an advocate),
- g) smriti vakya (relevant provisions of law),
- h) sabhaya vinischitam (opinion of the judges),
- i) Jayapatraha (Royal seal)
One cannot even substitute a syllable, to such a perfect definition of an important stage in the adjudication.
Though, people talk of honesty and integrity of judges, day in and day out, we do not find any specific code of conduct in the general law. In Shukraneethi, a sloka depicts how an adjudication gets adversely effected or ceases to be impartial. He says,
Pakshapathadhiropasya karananicha panchavye
raga lobha bhaya dvesha vadhinocha rahashrutani.
It means that there are five reasons, on account of which a Judge ceases to be impartial. They are raga (affection), lobha (Greed), bhaya (fear), dvesha (hatred), vadinocha rahashrutani, (discussing with the party to the proceedings secretly). Every meticulous aspect regarding the manner in which the proceedings must be conducted in the Court, were covered.
The enunciation of a principle or theorem i.e. sutra is common to all fields of study. A sutra almost resembles a definition. Even in modern field of study, we lack the definition of a theorem or principle. In one of the ancient works, the characteristics of the sutra are enunciated in a sloka which reads:
Asthobhana anavadhyancha sutram sutro vidhuhu.
According to this, a sutra is the one which is,
- a) Alpaksharam (precise), b) Asangdhigdam (unequivocal),
c) Saravath Viswathomukam (it carries the same meaning everywhere), d) Asthobha (it should not be the result of theft i.e. plagiarism), e) Anavadhyancha (its text or context should not be a prohibited one).
In the field of interpretation Sage Jaimini made substantial contribution through his work on Mimamsa. For example, he said that if a provision just gives a command, it is ‘Vidhi’ and is binding whereas, if the text proceeds to furnish the reason, or basis for the command, it is ‘Arthavada’ and does not command the same binding force as does the ‘Vidhi’.
What is mentioned above are only miniscule of the treasure of great knowledge. An eminent Indian jurist like Nani Palkhiwala paid encomiums to rich cultural heritage of ancient India.
For one reason or the other, we deprived not only to ourselves, but also to the rest of the world, the benefit of great ancient works in the field of law, on account of our indifference or ignorance. There is a general saying that the easiest way to get recognition as an ‘intellectual’ in India, is to denigrate anything which is associated with the ancient Indian culture. Field of law has no exception. If an advocate refers to ancient texts in his argument, not only the Judge but also those sitting in the Court would either laugh at him or at least pity him for not being progressive. On the other hand, an advocate can easily impress the Court by taking the names of Lord Caterpillar or Lord Butterfly in support of his proposition and out of fear of being branded as ignorant, one would not even ask as to whether there existed Judges with those names.
John D. Mayne, the author of the most popular treatise on Hindu Law had appeared in vast number of cases pertaining to Hindu Law in the Privy Council and other superior courts. In the introduction to the first edition of his treatise written in 1878, he observed,
“I cannot conclude without expressing my painful consciousness of disadvantage under which I have laboured from my ignorance of Sanskrit. This has made me completely dependant on translated works. A real satisfactory treatise on Hindu Law would require its author to be equally learned as a lawyer and an Orientalist…. Hitherto, unfortunately those who have possessed the necessary qualifications have wanted either the inclination or the time. The lawyers have not been Orientalists, and the Orientalists have not been lawyers.”
One would have expected the situation to improve after independence. Unfortunately it has deteriorated, so much so, that the law makers, do not have inclination even to look into translations,
let alone, the original works. We have turned blind eye to our great treasure and the result is that our laws, particularly Hindu Law as it existed now is the result of the knee-jerk reaction of someone without even showing any inclination to know the background of the concept, which is readily tinkered with. Just as our educational system, which was the most ideal in ancient times has been hijacked and almost defaced by certain vested interests, Hindu Law was also given the roughest if not wildest treatment and was reduced almost to some precepts of convenience. If Hindu Law in its complete form was a perfect Vehicle with Sophisticated mechanism, what is handed out by the Parliament, after independence, is just four wheels, detached from the Vehicle. Which the wheels have nothing to propel or drive them, the Engine, chassis and body remained idle for want of wheels.
If one intends to resurrect the glory of ancient Indian Law, the task is commendable, but very difficult and challenging. Fortunately, for us, there is valuable material available, be it, in Library at Tanjore (Tamil Nadu), or P.B. Kane Library at Pune. Scholars of high order are also available. One has only to put them together and get the work done. However, the challenge in this regard is worth being accepted.
I hope and trust that the outcome of the national seminar on Hindu Law would lead to tangible steps.
 It is the text of the key-note address delivered on 16th May, 2016 at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research.
Justice L. Narasimha Reddy is a former Chief Justice of Patna High Court. The views expressed are his own.
(This article appeared in India Foundation Journal, May-June 2016 issue.)