Jogendra Chunder Ghose: A Tribute to Pioneering Research in Hindu Law

Rai Bahadur Jogendra Chunder Ghose was born on the 26th May 1860 and died on the 3rd March 1947. His long life of eighty seven years was rich with many epochmaking events. He belonged to a family, which before and after his time, has shown special distinction in the realms of law. He was the son of Sir Chunder Madhav Ghose, who had the distinction of acting as the Chief justice of the Calcutta High Court in the year 1906. Young Jogendra grew up in a legal atmosphere of learning, scholarship and industry. He was enrolled as a Vakil of the Calcutta High Court on the 2nd May 1884. His life was not confined within the four corners of law. It had many facets. He influenced his generation in many intellectual, cultural, political and social movements of his day. Ha was one of the earliest protagonists for scientific education in the country. He was one of the famous twenty-eight who resigned in protest against the bureaucratic stifling of the civic rights of the Calcutta citizens in the eighteen-nineties. This is an attempt after a century to appraise and estimate the value of his enduring contributions to the world of law.  He was the representative of the Calcutta University to the Bengal Legislative Council and for sometime a representative of the Faculty of Law to the Syndicate of the Calcutta University, a Tagore Professor of Law, author of the Principles of Hindu Law, the Law of Impartible Property, the Law of Religious Endowments and Religious Institutions (Tagore Lectures 1904) and many other books and treatises. Devoted to Sanskrit learning, a master of Sanskrit texts, he was a pioneer in original research work in Hindu law and a pathfinder in the vast field of jurisprudence of Hindu Law.  His locus classicus is the “Principles of Hindu Law”. It is a monumental work of original research. It runs into three volumes. The First Volume was regarded in its days as the best of its kind and the most authoritative textbook on the subject. The Second Volume contains as many as twenty-five commentaries with Sanskrit texts and their English translation. This was an invaluable contribution. The original works of the great commentators of Hindu Law are mostly inaccessible and many of these commentaries and original texts are lost. He it was, who for the first time, made this authentic, regular and scientific record, preserved and recovered many of these disappearing, inaccessible and rare commentaries. He preserved the translation of Colebroke on the Mitakshara and the Dayabhaga with his valuable original notes. It is an illuminating record from the ninth century A.D. to the thirteenth century A.D. It is an original and scholarly exposition of the history not only of this period but also of the earlier period and contains some of the most authentic and rare materials for the history of India. It traces a continuous history of the evolution of the Hindu Law from 2500 B.C. to 1917 A.D. This work won the admiration of the Judges of the High Court and of the Privy Council and also of the great Indologists and scholars of Europe. It is not only a record of the great ideas of Hindu laws from ancient times to the modern age, but also an appreciation of the different decisions of the Courts and specially of the Privy Council affecting, moulding and developing the Hindu Law. This work naturally, therefore, influenced many future generations of lawyers and Courts in this field of Jurisprudence. Professor Sylvan Levi described this work as an unique production in the realm of legal literature and, said “I anticipate a full revolution in our studies”. The third volume of the Principles of the Hindu Law contains the collection of rare and invaluable Sanskrit texts, inaccessible to many, such-as :  Dattaka Mimansa, Keshava Vaijyanti, Dattaka Chandrika, Dayatattwa, Viramitrodaya, Balambhatta, Dayakrama Samgraha, Artha Sastra and Varadarajiyam. The English translations of these original Sanskrit texts are also given in the book, which for the first time make it possible for scholars, not knowing Sanskrit, to have access to the original sources of Hindu Law. This book makes research in this branch of Hindu jurisprudence now open to many, who so long found it a closed chapter. His Tagore Law Lectures on the Hindu Law of Impartible Property, including religious endowments were delivered in 1904 and first published in. 1906. But the book soon became out of print and a second edition had to be brought out in two volumes, one dealing with impartible property and the other dealing with Hindu endowments and religious institutions. This publication is marked with author’s great scholarship, learning, industry and original research. It contains valuable materials in the Appendix such as “The Religious Endowments Act 20 of 1863” whose famous preamble stated “An Act to enable the Government to divest itself of the management of religious endowments”, with its celebrated S. 22 declaring “Except as provided in this Act, it shall not be lawful for any Government in India or for any officer of Government in his official character to undertake or resume the superintendence of any land or other property granted for the support of or otherwise belonging to any mosque, temple or other religious establishments or to take any part in the management or appropriation of any endowment made for the maintenance of any such mosque, temple or other establishments or to nominate or appoint any trustee, manager or superintendent thereof or to be in any way concerned therewith”. I have quoted this famous section to emphasise and illustrate how the whole pendulum in this matter has swung completely round in the exactly opposite direction of principle and practice within the last one hundred years. The wisdom of yesterday is to-day dismissed as folly. The Appendix of this volume also contains the Madras Hindu Religious Endowments Act, 1923, which was one of the first portents of modern legislative and governmental interference in India in all Hindu religious endowments. This Madras Act, 1923 repealed the Religious Endowments Act of 1863 so far as it applied to Hindu Religious Endowments. It brought to the pattern of Boards of Commissioners, Temple Committees, Register of Endowments and all the usual regalia and consequent paraphernalia of government Inspectorate. This Appendix also gives a rare and valuable material which is Steele’s summary of the law and custom of Hindu castes in Deccan published by the Government in 1826 dealing with (a) custom of the Gossains and (b) Ghurabzee Gosawees, mostly connected with the religious community known as “Dasnamis’’. This book, therefore, gives Tor the first time, in a readily available form, the original sources of some branches of Hindu Law of religious endowments. The other importance of this work lies not merely as an account of the law and texts on religious endowments and foundations, but also as a clear exposition of the basic principles which guided the foundation of the great religious endowments of India and their management.  Rai Bahadur Chose was not content merely to be a text book writer on Hindu law. He was not mechanical in his handling of his Sanskrit Source texts of Hindu Law. He had a comprehensive and synthetic view of the whole history and evolution of the Hindu Law. He expresses this view in his Introduction to the second volume of the First edition of the Principles of the Hindu Law published in 1917. There he expounds the view, that “The history of the Hindu Law is the most wonderful chapter in the history of the world and of human institutions”. He reviews the ancient civilisations of Greece, Rome, Egypt, Babylon, Syria and Persia, with distinctive emphasis on the crucial characteristics of the Hindu civilisation. Secondly, he points out, which very few had done before, that “The history of Hindu law is practically the history pf India. We can trace in them the gradual development of laws and institutions of the Aryan race from before 2500 B. C. to the year 1917 A.D. According to him the laws of Manu were settled before the Rig Veda and thus before even the Aryans came to India.  Tracing a full account of the great commentators all over India, Rai Bahadur has done a great signal service by giving a short historical account of the famous school of Bengal Commentators. It is no exaggeration to say that within a short compass there is no better account in English in the whole field of legal literature on this subject. He begins with Sulapani, considered as the most ancient Bengal Commentator. Very little is known about him except his books. He wrote his famous commentary on Yagnavalkya Smriti. He does not mention there Jimut-Vahana and his views are opposed to those of the latter. Rai Bahadur Ghose therefore concludes that Sulapani preceded Jimut-Vahana. Ghose also mentions Halayudha, The Chief Judge of Lakshman Sena, the last Hindu king of Bengal who flourished about the end of the 12th century and wrote a book on Hindu law which was an authority in Bengal and Mithila. Then follows a discussion of Kallukabhatla of the 15th century A.D., whose commentary on Manu is of great authority throughout India. He explores the historicity of Jimut-Vahana, who preceded famous Raghunandan. A copy of “Kala-Viveka”, a work of Jimut-Vahana, in the library of Asiatic Society of Bengal bears the date of 1417 Saka corresponding to 1495 A.D. It is probable therefore that Jimut-Vahana lived in the beginning of the 15th century A.D. Srikara Misra is mentioned as a great authority on Hindu law. Srinath Acharya was another distinguished commentator of Bengal on the Dayabhaga. It was his disciple who was the great Raghunandan of Bengal who lived in the 16th century and whose opinions now rule the Bengal Pandits. Raghunandan enjoys the pride of place and is the most famous Bengal commentator. He was known as the Smarta Shattacnarya and was the son of Harihar Bandopadhya, also a famous writer. Raghunandan was the follower of Jimut-Vahana and the Dayabhaga became the supreme authority among the Pandits of Nabadwip. It was Gopal Nayalankar of Nabadwip who first taught Raghunandan Smriti at Nabadwip and it was his two famous disciples, Debi Tarkalankar and Ramnath, who made Raghunandan’s book popular and established his authority. Then came Srikrishna Tarkalankar, the celebrated commentator of the Dayabhaga and the author of Dayakrama Sangraha, who lived at the end of the 17th century or the beginning of the 18th century, being an original inhabitant of Malda who migrated to Nabadwip. He was followed by the Pandits of Warren Hastings, the Court Pandits of the Old Sadar Dewani Adalat, and the famous Jagannath Tarkapanchanan, author of Vivada Bhangarnava and the compiler of Colebroke’s Digest, who lived at the end of the 18th century. These Pandits made the law of Nabadwip Pandits, the law of the Bengal Courts. Rai Bahadur Ghose’s books on Hindu Law drew their inspiration from these original commentators and their works.  Coming to the British times, Warren Hastings caused a Digest of Hindu Law to be prepared by the Pandits, selected from all parts of Bengal. The copy of the manuscript of this Sanskrit digest can be seen at the library of the Asiatic Society of Bengal. The Pandits of Bengal who prepared this are mentioned at the end of this book and they are:  Baneswar Vidyalankar of Triveni, Ramgopal Nayalankar of Nabadwip, Kriparam, Krishnajiban, Vireshwar, Krishnachandra, Gouri Kanta, Kali shankar, Shyamsundar, Krishna Kishore and Sitaram. This book was first translated into Persian and the Persian translation was again translated into English by Mr. Halhed, a member of the Civil Service, known as Halhed’s Gentoo Code printed and published in London in 1775. The next landmark was the translation by Sir William Jones, a Judge of the Supreme Court in Calcutta, of the institutes of Manu, and published in 1784. Then comes famous Cole-broke, a Judge of the Sudder Dewany Adalat and afterwards a member of the Supreme Council and of the Board of Revenue, who made a translation of the digest Vivada Bhangarnava of Pandit Jagannath Tarkapanchanan. That was published in 1718 under the authority of the Government. Then Mr. Colebroke published his translation of the Dayabhaga in 1810 and shortly thereafter his translation of the Mitak shara.  From this, it will be abundantly clear that Rai Bahadur Jogendra Chunder Ghose was really the founder and pioneer of the Historical School of Hindu Law and jurisprudence. It is a pity that modern legal research in India has not developed the historical school, whose foundation was so amply laid by Rai Bahadur Ghose. Now that a century has rolled by, a tribute can be paid to him by the formal foundation of the Historical School of Hindu Law and jurisprudence. Modern Hindu law, after the independence of India and the inauguration of her present constitution in 1950, has undergone radical changes in many fields. Inheritance, marriage, succession, rights of women have been radically modified by modern statutes. The pre-eminent principle that informs all these changes is one of imitations of the more ephemeral laws of the West. These changes have altered the basic principles of Hindu law such as, marriage as a sacrament and not a contract, the prohibited (but now permitted) Sagotra marriage, and inheritance following the principles of spiritual benefit and not the whims and caprices of the holder of the strings of purse and property. These modern legislative changes of Hindu law have claimed to take away some of the basic characteristics of Hindu law and jurisprudence. Whether society will ultimately accept them, time alone will show. But India has played with big and unpredictable stakes by her imitation of foreign laws whose patterns have demonstrably failed to achieve either happiness or balance and whose traditions mistake comfort for progress, and. substitute wealth and number as competing substitutes for purpose and spiritual values. A truly historical view of the Hindu law and jurisprudence would nuke it plain that such law has not remained static throughout the centuries but was modified from time to time. The Hindu law during the Vedas, changed under the Puranas and Smritis and also under the rules of Mimansa and interpretation reflecting changing social conditions. Even in more comparatively recent times, Raja Ram Mohan Roy, Iswar Chandra Vidyasagar and others initiated many reforms in Hindu Law. Remarriage of Hindu widows is one of the great examples of the nineteenth century legislative reforms in this respect.  Rai Bahadur Chose was also responsible for indicating the way for the philosophical school of Hindu law. The basic principles of the Hindu law are intimately and integrally connected with the Hindu philosophy of life and the universe. The individual, personal and social laws of the Hindus are based on their philosophy of life. It is essential to remember that in this respect Hindu jurisprudence and the Hindu system of law are very different from other systems of jurisprudence whose concept of law is derived from statecraft and particular political philosophy of the State to which such laws are attached. Hobbesian, Austinian or Soviet systems of jurisprudence are very different from the Hindu jurisprudence whose basic concept of the origin and function of law is derived from “Dharma”, and a system of cosmology and philosophy of life not confined within narrow limits of any particular brand of statecraft. Rights, obligations, property, inheritance, marriage, contracts, crimes and delicts in Hindu jurisprudence are all concepts impressed with certain central ideas of Hindu philosophy of life and universe. Even its remarkable rules of Mimansa and interpretation are based on a whole philosophy of grammar and linguistics. It is not commonly known that Rai Bahadur Ghose was not only a great scholar of Hindu law but he was also a very keen student of Hindu philosophy, the foundation of Hindu law. In fact, he wrote an excellent book called “The Positive Religion”. It expounds the doctrine of personal god and personal religion and justifies them at the bar of positive science and philosophy. Indeed it was one of the earliest and boldest attempts in the history of the world to base religion on positive science. In this book he makes a massive review of about 150 of the most eminent philosophers and scientists from the ancient times upto the year 1920 A.D. The logic of his argument is profound and penetrating. His conclusions about pain and evil, mysticisms and eternal life reveal not only the depths of his philosophical study but also illustrate a rare combination of rational investigation, a scientific approach and spiritual insight. The book is a vindication of theism. He magnificently brought his philosophical outlook to bear on his scholarly work on Hindu Law nor Anglo-Saxon jurisprudence was inspired so extensively and so intimately by religious philosophy as the Hindu jurisprudence. To Rai Bahadur Ghose belongs the credit of bringing out these significant aspects of the philosophical school of Hindu jurisprudence.  This tribute of a century is offered to him, as being the initiator and pioneer of the historical and philosophical schools of Hindu law and jurisprudence in modern times.

Author Name: Hon'ble Justice P B MukherjiÂ