Sources of Hindu law

Dr. Kavita Goel

 Meaning
• The Hindus believe that their law is of divine origin. And this is the
positive law emanated form the deity. So according to Hindu
conception, the law in modern sense was only the branch of
Dharma which includes religious, social, moral and legal duties.
• Authoritative perspective: maker of law.
• Literal mean: evidence of law. From which we derive the matter
not the legal validity.
• Social perspective: Cause of law.
• Vijneshwara: means of knowing law.
 Significance of Sources of law
• Legal system: In every legal system, that rule is
law which has place in the sources of law.
• Updated development: The study of sources of
Hindu law is the study of various phases of its
development which enabled it to confirm the
needs of the society.
 Sources of Hindu law
• Ancient sources
a) Shruti
b) Smriti
c) Digest and Commentaries
d) Custom
• Modern sources
a) Precedent
b) Legislation
c) Equity, justice and Good Conscience
 Shruti (4000-
1000BC)
• Shruti(Vedas): what was heard. It means the very word
of the God. Shruti comprises of 4 Vedas, 6 Vedangas
and 18 Upanishads. Vedas must be regarded as the
primary authority of all questions relating to proper
conduct of man.
• Veda means ‘to know’. It is the repository of all
knowledge. According to tradition, Shruti is synonym of
Vedas.
• Who wrote Vedas: The formal documentation of Vedas
was done mainly by Vyasa Krishna Dwaipayana around
the time of Lord Krishna(c. 1500 BC)
a) Rig Veda: hymn to be recited by the chief priest
b) Yajur Veda: hymn to be recited by the officiating
priest. It is divided into two, black and white
Yajur.
c) Sam Veda: verses to be chanted by seers
d) Atharva Veda: collection of spell, incantation,
charms and exorcism.
 Contd.
• Vedangas: Kalpa (ceremonies), Vyakarna (grammar),
Chhanda (prosody), Shiksha (pronunciation), Jyotish
(time Keeping) and Nirukta (etymology).
• Rules of Vedic Aryans
– Customary rules
– Law of divine
• Critics: (1) Vedas contains no law and are of little value.
(2) The Vedas depict the way of life of our early ancestors.
Structure of the Vedas
• Each Veda consists of four parts--the Samhitas (hymns),
the Brahmanas (rituals), the Aranyakas (theologies) and
the Upanishads (philosophies).
– The collection of mantras or hymns is called the Samhita.
– The Brahmanas are ritualistic texts that include agreed rules and
religious duties. Each Veda has several Brahmanas attached to
it.
– The Aranyakas (forest texts) intend to serve as objects of
meditation for ascetics who live in forests and deal with spiritual
belief and symbolism.
– The Upanishads form the concluding portions of the Veda and is
therefore called the “Vedanta” or the end of the Veda. The
Upanishads contain the essence of Vedic teachings.
 Rig Veda

• The Book of Mantra

• The Rig-Vedic ‘samhita’ or collection
of mantras consists of 1,017 hymns or
‘suktas'
• seven primary seers identified: Atri,
Kanwa, Vashistha, Vishwamitra,
Jamadagni, Gotama and Bharadwaja.
• social, religious, political and
economic background of the Rig-Vedic
civilization
 Sam Veda
• The Book of Song
• liturgical collection of melodies
• its text is a reduced version of
the Rig Veda.
• As Vedic Scholar David Frawley
puts it, if the Rig Veda is the
word, Sama Veda is the song or
the meaning; if Rig Veda is the
knowledge, Sama Veda is its
realization; if Rig Veda is the
wife, the Sama Veda is her
husband.
 Yajur Veda
• The Book of Ritual
• Liturgical (public Worship)
collection of ceremonial
• practical guidebook for the
priests who execute
sacrificial acts while
muttering simultaneously
the prose prayers and the
sacrificial formulae
• It is similar to ancient
Egypt’s “Book of the Dead.”
 Atharva Veda

• The Book of Spell

• consists of spells and
charms prevalent at
its time and portrays a
clearer picture of the
Vedic society
Pre-Smriti
Period
 Smriti
• Smriti: what has been remembered. The subject matter of smritis
are Achara, Vyavhara and Prayaschitta. The principles of law are
mostly covered under Vyavhara. it may be divided into two parts:
A) Dharamsautras(800-200BC):
Gautam,
Budhayana,
Apastamba,
Harita,
Vasistha, and
Vishnu.
 Contd.
(b) Dharamshashtras: it includes
Manu Smriti, Yajnavalkya Smriti and Narada Smriti.
• Manu Smriti: it contains 2694 shlokas but the legal part contains 18 titles as
debts, pledges, deposits, partnership, gifts, wages, agreement, boundary,
disputes, master and servant, husband and wife, and inheritance, assault,
gambling, defamation, partition, theft, robbery and adultery. His code was
harsh towards women and slaves.
– Kulluka's Manvarthamuktavali, Medhatithi's Manubhasya and Govindraja's Manutika
• Yajnavalkya Smriti: it contains 1010 shlokas. He divided the shlokas into 3
parts, ritual for marriage, secular for courts procedure, expiation for danda.
He was less harsh towards women and slaves.
– Mitakshara by Vijaneshawara
• Narada and Brihaspati Smriti: both recognized the power of king to make
laws.
– Narada Bhasya by Ashaya
 Mimansa
Rules of interpretation
• Gujarat Urja Vikash Nigam
Ltd. Versus Essar Power Ltd AIR 2008 SC
1921
• Given by Jaimini.
a) Sarthkyata Axiom
b) Laghava Axiom
c) Arthaikatva Axiom
d) Gunapradhan Axiom
e) Samanjasya Axiom
f) Vikalpa Axiom
The books on Mimansa are all in
Sanskrit, but there is a good book in
English by Prof. Kishori Lal Sarkar called
‘The Mimansa Rules of Interpretation’
published in the Tagore Law Lecture
Series, which may be seen by anyone
who wishes to go deeper into the
subject.
 Digest and
Commentaries
• Digest and Commentaries: in
this period the divine authority
was given up. The garb is the
analysis, assimilation and
formulation of rules by those
who claimed no divine authority
and were scholars.
• Commentaries on Manu Smriti:
a) Medhatithi has written
Manubhashya
b) Govinda Raja has written
Manutika
c) Kulluka Bhatt has written
Manavonta Muktavali
 Contd.

Commentaries on Yajnavalkya Smriti:

• Mitakshara by Viganeshwara
• Balakrida by Visvarupa
• Aparaditya by Aparakara

Regional commentaries:
• Dayabhanga by Jimutuvahana
• Smriti Chandrika by Devammabhatta
• Viramitrodya by vachaspati
• Vivada Arnava Sethu by 10 learned Pandit
 Special • Adoption
Authorities
• On religious and ceremonial
Law
Custom
 Modern Sources
• Equity, justice and good conscience: this source owes its origin
to the beginning of British administration of justice in India.
When the law was silent on the matter they should decide the
case in accordance with justice, equity and conscience. This was
the period of blending of Hindu and English Law.
– Gautma: approval by at least 10 well skilled persons
– Brihaspati: Yukti
– Yajnavalkya: Nyaya
• Precedent: binding nature of previous judicial decisions on a
subsequent similar case.
Contd.