What are the Ancient Sources of Hindu Law?
(c) Commentaries and digests; and
The word shruti has been derived from the verb ‘Shru’ which means “to hear”. Shruti stands for what has been heard. It is generally believed that the Shrutis contain the words of God which came down to us through the seers and sages. These shrutis occupy the most exaulted position for spiritual bearing. They are not so much useful for the knowledge of the positive law.
These shrutis including Upnishadas constitute the complete codes of the spiritual learning which are helpful in the attainment of salvation. However, they are regarded as the oldest sources of law. Rigveda is first and foremost among the shrutis for the knowledge of law. It comprehensively deals with the duties of a King.
It contains a detailed description of laws which the King shall have to follow in the administration of justice. The King was required to punish the offenders and to uphold the law. Among Vedas Rigveda distinguishes itself for its jurisprudential value. The Rigveda enjoins observance of the ancient rules of ‘Adi Manu’. “Do not take us far away from the path (rules of Dharma) prescribed by Manu and came down to us from our forefathers”. The following are the four Vedas:
Next to Vedas are six Vedangas in its development process. These Vedangas are as follows:—
(1) Kalpa, (2) Vyakarna, (3) Chhanda (4) Shiksha, (5) Jyotish, (6) Nirukta. Among the Vedas, the Rigveda is the oldest and consists of hymns and songs in praise of the forces of nature. The Yajurveda deals with rituals and sacrifices and the mantras in this connection. A ‘mantra’ is sacred prayer addressed to any deity. But the Samaveda contains prayers composed in mantras and set to music.
The Atharvaveda is devoted to magic, spells and incantations. These Vedas contain only the fundamental principles of Hindu Law and it must be remembered that the Hindu Law prevailing at present amongst Hindus is not exactly the same as enjoined by the Vedas. Gradual departure from the Vedic tenets or principles brought several evils in this law and modern legislation tries to remedy them.
The Vedas primarily emphasised upon the standard of conduct, privileges, duties and obligations of a man as well as the philosophy of divine attainments. They also laid down the customary laws as accepted by learned men. These Vedas do not contain any systematic or logical description of positive law.
The rules of law found in them are stray and not precise. In fact the truth is this: since Vedas have been regarded as the source of all knowledge, the knowledge of law applicable to Hindus also is believed to have been contained in them although for any knowledge of positive law, they were utterly unsatisfactory.
The term Smriti literally means what has been remembered. These Smritis are recollections of human mind put in a consolidated form. According to some scholars they were edited by those seers upon whom the knowledge of Vedas descended. They have been therefore regarded as much an authoritative source of law as Shrutis.
They are also known as Dharamshastras, constituting the foundations of law. They are collections of precepts handed down by Rishis or sages of antiquity. They are composite iii their character and they blend religious, moral, social and legal duties. They contain some metaphysical speculations, matters sacramental in nature and also rules of legal rights and obligations. The rules of law laid down in these Smritis are not controversial and their superiority is not doubted by anyone. These smritis can be classified into two categories: (1) Primary and (2) Secondary.
Secondary Smritis are the latter works. Among the primary Smritis are the Dharmasutras. Gautam, Bandhayana, Apastamba, Vasishtha and Vishnu are the chief Sutra Karas. Manu, Yajnavalkya, Narada and others are chief exponents of Dharmashastras.
The Smritis designated as Dharmasutras were written in prose style and the Smritis other than Dharmasutras were written in shlokas or metrical verses. The Dharma Sutras are more ancient and are sometimes differentiated from the Smritis or Dharmashastras written in verse form and specifically referred to as the Smritis.
The period of these Sutras and Gathas vary approximately between 800 B.C. and 200 B.C. They contain a vivid description of human duties. They were composed in different parts of this country in different periods. These Sutras and Gathas do not contain opposite views. The legal principles laid down in the Smritis have been based on old Gathas and aphorism of Sutras. The customs and usages have been given due recognition and their role in the evolutions of law have been acknowledged by all the Smriti Karas.
The Dharmasutras of Gautam, Bandhayana, Vasistha and Vishnu are extremely useful for the knowledge of the law of inheritance, partition, adoption, marriage, sonship, debt, rate of interest, positive law and criminal laws. Harita was another early dharmashastra writer the reference of whose work is often found in the Smritis, Commentaries and Digests. It is a characteristic feature of Harita Smriti that we find a very lucid description of the sources of ‘dharma’ the duties of the King and householders and the procedure of the court.
Besides the above Dharmashastras the Ushna and Hirandyakash of Shankh and Sutras of Kashyap are extremely important as they contain a critical exposition of law. The Nirukta of Yaksha is full of legal proverbs and injunctions which exhibited remarkable development of legal rules.
The Smritis which are in ‘Shlokas’ are popularly known as dharmashastras. The most important dharmashastra writers are Manu, Yajnavalkya, Narada, Vishnu, Devala, Brihaspati, Katyayan and Vyas.
Manu stands foremost among all the Smritikaras and Brihaspati has himself admitted this fact. According to him, Manu has very ably explained the legal precepts found in Vedas. Any later Smriti which came in conflict with Manusmiriti could not be taken as authoritative.
Chronologically after Manusmriti comes the Smriti of Yajnavalkya which is equally important. The Mitakshara, a commentary on Yajnavalkya Smriti itself won great recognition throughout the length and breadth of this country. Prof. Stenjeller is of the view that the Yajnavalkya Smriti is broadly based on Manusmriti and is of immense importance from point of view of knowledge of legal rules. After Yajnavalkya Smriti, the Smriti of Narad is of still greater importance for its comprehensive narration of legal rules.
It is one of the distinguishing features of these Smritis that they deal separately with the positive law and devote full chapter on it. Manu and others have divided the positive law into eighteen titles and hundred and thirty-two sub-titles. They contain connected procedural laws with respect to these titles and sub-titles.
The Smritis of Narada and Brihaspati are extremely important for a proper and scientific exposition of law. They have in a comprehensive way dealt with various aspects of positive law.
Smritis are foundations of Hindu law. Juristically they occupy an important position. They contain vivid exposition of all such laws which are generally relevant for regulating the conduct of man in various areas in modern times also. The rules incorporated in these Dharmashastras bear distinct reflections of the changing needs of society.
Manu’s code in its present form appeared to have been compiled in 200 B.C. The rules of law contained in it are believed to have come down from Manu, the first patriarch. The Dharmashastras right down from the Rigvedic age refers to the opinions of Manu. The authority of the precepts contained in the code was beyond dispute for the reasons that they represented a systematic and cogent collection of rules of existing law.
Thå narration is in simple language, easy of comprehension. It is a complete code of human conduct including the duties of the King. The code is divided into twelve chapters. The eighth chapter describes eighteen titles of law which include both civil and criminal law prominent among which are law of inheritance, contract property, master-servant relationship, defamation.
This classification was widely used by the later smritikars. “The rules of law laid down in Manu Smriti and its most characteristic doctrines have today their practical importance in this that the code is a landmark in Hindu law and a reservoir to which reference at times became necessary for the proper appreciation of any fundamental concept or any question involving first principles.
The code has laid great emphasis on customs and usages as sources of law. It laid down that a King must inquire into the law of castes, of districts, of guilds and of families and settle the peculiar law of each. Another important proposition contained in the code relates to the significance of danda as sanction behind the legal rules.
A number of commentaries were written on Manu’s code later on, the most important of which are that of Medhatithi, Govindaraj and Kulluka. Next to Manu’s code, comes Yajnavalkya Smriti allegedly compiled in the first century A.D. Like Manu, he too spoke of four Dharma namely, the shruti, the smriti, the approved usage and what is agreeable to one’s self and desires spring from due deliberations.
Although it is said to be broadly based on Manu’s Code yet it is quite original and more logical and synthesized. He is more liberal than Manu on several issues such as the women’s right to inheritance and to hold property, punishment for various offences. Several features of commercial law have also been touched by him.
Yajnavalkaya Smriti also contains the rules of procedure and evidence to be followed in civil disputes. It does not confine the justiceable causes to eighteen titles of dispute as enjoined by Manu but on the other hand it has laid down that whenever the right of a person is infringed or a wrong is done to him in contravention of smriti or customary law, a judicial proceeding could be initiated.
Next important smriti is that of Narada, compiled in about A.D. 200. Narada acknowledges that his work is an abridgment of the larger work of Manu. But the views propounded in his work are highly advanced and progressive. He over-emphasised the importance of customs. A distinguishing feature of his Smriti is that it solely deals with law. Some of the topics which exclusively find place in the smriti include ownership, property, gifts, partnership, inheritance. He recognises the right of separation and remarriage by a woman in certain circumstances. He has also given some detailed rules relating to payment of interest. Besides the above, the Smriti characteristically deals with the law relating to pleading, procedure and evidence.
Another important contribution of Narada Smriti has been the recognition of the authority of the king-made laws. Narada adds: “As the king has obtained lordship he has to be obeyed. Polity depends upon him. Thus the smriti made a remarkable contribution towards the evolution of Hindu jurisprudence.
In the annals of later smritis, which deserve our attention Parasar Smriti, and Brihaspati Smriti and the Smriti of Katx/ayana come foremost. But the first one is prior in time and contains the discussion on Achara and Prayashchitta. It omits discussion of Vyavahara (positive law) Brihaspati Smriti, on the other hand relatively more unorthodox, has covered all the areas of positive law like the Narada Smriti.
The striking features of this Smriti have been an elaborate feature on law of partnership and adjectival laws. The rules of procedure and particularly those relating to pleadings laid down by Brihaspati are a great advance on the adjectival law in operation before his times. This Smriti is available in parts and it is believed that when the entire set would be discovered, it would exhibit the high water-mark of Indian acumen in strictly legal principles and definition.
The smriti of Katyayana is not available in its entirety but is generally quoted on the points of procedural law, law of stridhan and women’s property. He has laid emphasis upon the strict adherence of the dictates of Dharmashastras by the king. Katyanaya is more liberal than his predecessors in matters of amendment in pleadings. He treats the constitution of courts and the qualifications of judges at some length. In the words of Mulla, “his exposition is authoritative and remarkable for its freshness of style and rigorous approach. There can be little doubt that this smriti must have been brought into line with current law.”
Arthashashtra was written during the period of Chandragupta Maurya sometimes about 300 B.C. It is of no less importance in the history of the legal development in India. It dealt with the political administration in general, devoting chapters exclusively to the treatment of law.
The exclusive and systematic treatment of law was a distinct achievement of Arthashastra as against the foregoing Dharmasutras. It was mainly secular and as such divorced from all sorts of religious and sacerdotal elements. There are two independent chapters namely, Book III and IVth on law in this work one is known as the chapter on Dharmasthiya and the other is known as the chapter on Kanta-kasodhanam. The former appears to deal with civil law and the latter with criminal law. The former consists of twenty chapters and the latter comprises thirteen chapters.
(c) Commentaries and Digests:
After Manu the development of Hindu law diffused into different sources and it gave rise to confusion and incongruities in law to certain extent. It was felt necessary to effect some modifications in law so that the same could fulfil the needs of the society in a changed scenerio.
The Commentaries and Digest written in later period fulfilled this necessity and assumed greater significance than the Smritis, although based on them. “In the evolution of Hindu legal and social institutions”, according to N.R. Raghavachariar, “Commentaries and Digests have played an important part and have in effect superseded the smritis in a large measure.” The commentators did not claim to have laid down any new law.
They held the view that they edited the legal rules as they were found and settled them after considering the needs of the contemporary society and the practices prevailing therein. There were certain commentaries which were prepared either at the behest of the king or under their patronage and hence they became very much popular.
Besides Commentaries, Digests were also prepared which collected all the available texts of law on certain points at one place and gave concrete means to ascertain the law.
The leading commentaries are those of Asahaya on Narada (7th century), Viswarupa on Yajnavalkya (8th century), Medhatithi on Manu (9th century) Vijyaneshwara on Yajnavalkya (11th century) and Aparaka on Yajnavalkya (12th century). Besides, Dayabhaga by Jimutvahan, Virmitrodaya by Mitra Misra, Vivadchintaman by Vachaspati, Vivad Ratnakar by Chandeswar, Dayatattra by Raghunandan, Dayakram Sangrah by Srikrishna, Smriti Chandrika by Davanna Bhatta, Parasara Madhviya by Madhvacharya, Vyavhara Mayukha by Nilkantha, occupy prominent place.
In Bengal besides Dayabhaga, Kalvipak and Vyavhara Matrika became useful sources of law. Among the later Dharmashastra writers of Bengal, Raghunandan stands foremost. His work “Smrititattva” became a potential source of Smriti law and Dharma.
(i) The Mitakshara:
It is one of the most important commentary on Yajnavalkya and command reverence all over India. Its author, Vijnaneshwar evidenced remarkable ingenuity in the elucidation of law on every aspect of human life. Its authority was established throughout India except in Bengal. The law laid down by Mitakshara except where it has been altered by legislation, stands good even today. Its importance can be adjudged by the fact that several commentaries were, later on, written on it.
(ii) The Vyavhara Mayukha:
It was the work of Nilkantha. Its authority was established in Western India and it was regarded superior to that of Viramitrodaya by Mitra Misra. Nilkanth’s treatment of the subject shows conspicuous clarity and lucidity. He generally omits irrelevant discussions and takes a practical view of things and he is certainly entitled to be regarded as a founder of a school of Hindu law.
(iii) The Dayabhaga:
It is the chief commentary in Bengal, compiled by Jimutvahana in 13th century. It mainly deals with law of inheritance and partition. In respect of these two, the work of Jimutvahana fundamentally differs from Mitakshara. It recognises neither the son’s interest in the coparcenary property by birth nor his right to demand partition, while the father is alive.
It goes to his heirs by succession. In Dayabhaga law he has absolute power of disposal of property by sale, gift, or Will or otherwise his separate as well as ancestral property. It is an authoritative work on partition, inheritance and Stridhan for whole of Bengal. This work has an appeal to reason but not to precepts and precedents.
Dr. Jolly regards it as one of the most striking compositions in the whole department of Indian Jurisprudence.
(iv) Other Commentaries:
The authority of commentaries differed from province to province and hence various schools with different doctrines arose, each school accepting one or the other commentary as a paramount authority. Even the remoter sources of Hindu law enjoy recognition among all the schools.
Thus in Mithila, the two commentaries, namely Vivad Chintamani and Vivad Ratnakar, in Southern India, the Smriti Chandrika, Saraswathi Vilas and Madhavya, in Bombay Vyavhara Mayukha came to be recognised as most authoritative work.
Conflict of Laws in the Texts:
When there were conflicting texts in Srutis or in Smritis on a point of law, it was resolved with reference to the practice accepted widely by the public. But when there was conflict in the texts of a Sruti and that of a Smriti, the texts of Srutis were taken to be authoritative.
According to Yajnavalkya, in case of differences in the texts of Smritis the law was settled on the basis of the practice prevailing in society. Dharmashastras and widely accepted practices were treated to be superior authority to Arthshastra.
As regards the interpretation of the texts of Smritis, the law givers had laid down their own rules of construction. Jaimini’s Mimansa is an important work in this connection, which contains a detailed account of rules of interpretation. There appeared several commentaries on Mimansa.
Treatises on Adoption:
Besides the above works, Dattaka Chandrika written by Kuber and Dattaka Mimansa written by Nanda Pandit are two chief authorities on the law of adoption. These two works command great respect throughout India except that, wherever they differ, the former is preferred in South India and Bengal and the latter in Benaras and Mithila.
In addition to the commentaries two digests, namely Vivadamava Setu commonly known as Halhed’s Code compiled at the request of Warran Hastings and Vivada Bhangamava complied by Jagannath Tarakpanchanan at the instance of Sir William Jones were prepared during the British rule.
In modern times, the commentaries and digests have been assigned superior authority because they, though professing to interpret the Smritis, have considerably modified the old law in accordance with the views of the writers and according to the changes of times. At present they have greater recognition than any other Sanskrit works.
Accordingly “in the event of any conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted.” Although the commentators might have been wrong in their interpretations of original text, their opinion should have primacy, for, they have the sanction of usages. Under the Hindu system of law clear proof of usage will outweigh the written text of law.
The law and the religion were interwoven in Dharmashastras and also to a certain extent in the commentaries. The sacradotal domestic and ethical rules also mingled up together. This fact was recognised even by the Privy Council. In Balwant Sing v. Ravi Kishore, their Lordships observed: “All these old text books and commentaries are apt to mingle religious and moral considerations not being positive laws with rules intended for positive laws.”
The Hindu Law, of which Srutis and Smritis are the two important sources, as a matter of fact, reflect the contemporary customs of the society, great importance is attributed to the customs, because the King was expected to adjudge the disputes according to custom, and custom could predominate or outweigh the law made by the King.
In simple sense custom means a uniform behaviour with a belief that it is compulsory to follow such mode of conduct. In another way to say, a conduct which people feel obligatory to practice. A custom, which is a mode of conduct, arises by the practice initiated by the people in the society.