The Historical Background and Theoretic basis of Hindu Law

The Majesty of Law The Constitution of India heralds the birth of a new and historical epoch in the history of India. It has pledged the country to the task of securing ‘to all its citizens justice, social, economic and political’. The ideal of a welfare State is based on the evolution of a new social philosophy. The State now accepts the responsibility of meeting all legitimate demands of social and economic justice, and in meeting these demands, the State has inevitably to fight what the Beveridge Report has so picturesquely described as the ‘giants of idleness, disease, squalor, and want’. In pursuit of this ideal, the State rejects the doctrine of unmitigated economic individualism, and the theory of laissez-faire on which it is founded. As Friedmann has observed, the effect of adopting a new social philosophy is the transformation of the free economic society in which the State is a glorified policeman, but otherwise a disinterested spectator, into a controlled society in which the State is an active participant in the economic and social life of the citizen 1. In order to appreciate the expanding role of law in a modern democratic welfare State, it has become essential to reconsider the philosophy and principles of law and to re-define the rule of law itself. The problem posed by the planned economy of a welfare State can be reasonably solved only if the need of planning and the force of law on which it tends to rely are reconciled with the claims of individual freedom. That is why a proper study of the role of law in the present age of India’s freedom presents a fascinating and instructive subject for Indian lawyers and jurists. It is true that too much cannot be expected from law. Nevertheless, in implementing the welfare policies of a democratic State, law has to play a dynamic role. And it is this aspect of law that must be properly appreciated by all citizens in a democratic State. The majesty of law was never more eloquently described than by the Brhadaranyeka Upanisad. Says the Upanisad, ‘He was not yet developed. He created still further a better form, law (dharma). This is the power of the Ksatriya class, namely, law. Therefore, there is nothing higher than law. So, a weak man controls the strong man by law, just as if by a king. Verily that which is law is truth; therefore, they say of a man who speaks the truth, “he speaks the law”; or of a man who speaks the law, “he socaks the truth”. Verily, both these are the same thing 2. The object of the present article is to deal very briefly with the broad features of two aspects of the study of Hindu law. What is the historical background of Hindu law and what is its theoretic basis?  Ancient Law-its Features It is true, as Maitland has observed, that races and nations do not always travel by the same roads and at the same rate. Even so, a comparative study of ancient laws in the world has disclosed a number of remarkable affinities. Maine showed, on the one hand, that legal ideas and institutions have a real course of development as much as the genera and species of living creatures, and in every, stage of that development, have their normal characteristics; oh the other hand, he made it clear that these processes deserve and require distinct study and cannot be treated as mere incidents in the general history of the societies where they occur 3. The general conclusions reached by Sir Henry Maine in regard to the characteristics of ancient law have now been broadly accepted as correct. ‘If, by any means, we can determine the early forms of jural conceptions’, observed Sir Henry Maine, ‘they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist They contain potentially all the forms in which law has subsequently exhibited itself 4. According to Maine, the earliest notions connected with the conception of law are those contained in the Homeric words ‘Themis’ and ‘Themistes’. When a king decided a dispute by his judgment, the judgment was assumed to be the result of direct divine inspiration. Themistes’, the plural of Themis’, meant really the awards themselves assumed to have been divinely dictated to the judge. According to Grote, ‘Zeus or the human king on earth is no law-maker but a Judge’, and his judgments, divinely inspired, constitute law. It is fairly certain that in the earlier stages of the human race, no trace of any legislature in the modern sense of the term, or even of any author of law can be found. At that stage, law has not reached even the footing of custom, properly so called. It is rather a habit, as Maine observes. It is, to render a French phrase, ‘in the air’.  The next stage in the development of ancient law witnesses the transfer of authority to pronounce judgments, from the king to the aristocracies. Military and religious oligarchies appear on the seene, and though the authority of the king was not superseded, and the judgments pronounced by the Icing were the result of the consultation held by the king with members of the military and religious oligarchies. Maine’s theory is that in the East these aristocracies became religious, while in the West, they became civil or political. This era of aristocracies succeeding the era of the king may be regarded as a feature of the growth of law in the Indo European family of nations. Even during this era, the aristocracies do not purport to make the laws. Their claim is based on the monopoly of the knowledge of laws, and the decisions based upon this assumed knowledge, of laws tend to give rise to customary law. In this sense, during this epoch the stage of customary law can be said to have been reached.  The study of Roman law shows that the period of customary law in due course led to the era of jurisprudence. This era may be called the era of Codes. The Twelve Tables of Rome can be treated as the best representative of this era. The Twelve Tables, it may be noticed, deal rather with adjectival laws and not with substantive laws. Even during this early stage of development of ancient law, students of history notice that whereas law tends to be stable, and seeks to make the social structure steady and enduring, changing social environments exercised pressures for a change, and an attempt appears always to have been made to bridge the gulf between the letter of the law and the needs of the changing social structure.  There is another feature of all ancient law which deserves to be noticed. Law does not make any distinction between religion, ethics, or morality, on the one hand, and the provisions of what may be called the positive law, on the other. Though in its progress, the legal order appears to have tried to meet the new demands arising out of a multitude of unsatisfied social desires, human agency did not claim the authorship of law. Its origin continued to be divine. The Mosaic Law or Hammurabi’s Code or the Manu Smrti, each one in its own way, claimed to be based upon divine inspiration. Demosthenes gave to the Athenian jury four reasons why men ought to obey the law. He said, ‘Men ought to obey the law, because “laws are prescribed by God, because they were a tradition taught by wise men who knew the good old customs, because they were deductions from an” eternal and immutable moral code, and because they were agreements of men with each other binding them because of a moral duty to keep their promises” 5. Similarly, it is recorded that Cicero believed that justice and the whole system of social life depended upon the gods and man’s belief in them. The law, according to Roman ideas, rested upon the double foundation of divine regulation and human ordinances 6.  The Cultural Heritage of India It appears that in mediaeval Europe, the Church successfully claimed exemption from secular authority for the clergy, and also exercised jurisdiction over all people in respect of certain matters which would now be regarded as the subject-matter of civil jurisdiction. During this period, the State regarded itself as under a duty to enforce obedience to the laws of God, and ecclesiastical courts were the instruments through which the State acted 7. In this connection, it would be interesting to notice the effect of the sentence of excommunication during this age. Excommunication not merely involved imprisonment by the church till the Bishop withdrew the writ on submission by the excommunicate, it led to several temporal consequences as well. ‘According to Bracton, the excommunicate cannot sue any one, though he may be sued. He cannot serve upon juries, cannot be a witness in any court, and worst of all, cannot bring any action, real or personal’ 8. It was only the Renaissance that there set in a period of faith in reason, and the Protestant jurist-theologian developed a theory of law divorced from theology and resting solely upon reason. That, however, is a much later development.  Sir Abdur Rahim expresses the opinion that Mohammedan law sought to supervise the whole life of its subjects, not merely the material or secular sides. According to Sir Abdur Rahim, law has two aspects, religious and secular. The end of law is to promote the welfare of man both individually and socially, not merely in respect of life on this earth but also of future life9. It would thus appear that during the early stages of the development of law, what were regarded as rules of law were invariably assumed to have divine origin, and they purported to receive their sanction from the fact that they embodied the dictates of Providence. During this stage of the development of law, the main idea which, according to Pound, supplied the basis of the law was that ‘law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. This is the conception of what may be called the stage of primitive law10.’ In support of this proposition, Pound has referred to the typical theory of Plato. As Plato puts it, ‘the shoemaker is to be only a shoemaker and not a pilot also; the fanner is to be only a farmer and not a judge as well; the soldier is to be only a soldier and not a man of business besides; and if a universal genius, who through wisdom can be everything and do everything comes to the ideal city-State, he is to be required to move ‘on’. Aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes to which their worth requires them to be assigned. Pound concludes that when St. Paul exhorted wives to obey their husbands and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this Greek conception of the end of law11.  At this stage, it may be relevant to refer to the subsequent theories about it According to Kant, law is a system of principles or universal rules to be applied to human action whereby the free will of the actor may co-exist along with the free will of everyone else; whereas, according to Hegel, the law is a system of principles wherein and whereby the idea of liberty was realized in human experience. Bentham, however, rationalized law as a body of rules laid down and enforced by the State’s authority, whereby the maximum of happiness conceived in terms of free self-assertion was secured to each individual 12. Lastly, Austin resolved every law into a command of the lawgiver, an obligation imposed thereby on the citizen, and a sanction threatened in the event of disobedience. Austin further predicated of the command, which is the first element in law, that it must prescribe not a single act, but a series or number of acts of the same class or kind13. It must, however, be remembered that these are points of view which were evolved much later in the history of law. It is clear that in the early stages of law, no distinction was made between vinculum juris and vinculum pudoris. The broad features of ancient law which have been indicated, give us a glimpse into the background of ancient law and its theoretic basis. It is the object of this article to inquire how far these features were present in ancient Hindu law, by examining very briefly the historical background and theoretic basis of Hindu law.  The Historical Background of Hindu Law It may sound platitudinous, but it is nevertheless true to say, that like Hindu culture, Hindu law can justly claim the most ancient pedigree in the history of the world. Unfortunately, absence of reliable chronological data has presented an almost insoluble problem before Oriental scholars in the matter of fixing the dates of ancient Sanskrit words. It was not usual in India in ancient times for authors to supply any biographical data, or to indicate the place and time when they wrote their works. The dates of historical personages and eminent authors are thus left to be determined in the light of intrinsic evidence furnished by literature; and naturally, such a determination has led to a sharp difference and diversity in the scholastic opinion. Generally, Western Orientalists were not inclined to concede sufficient antiquity to ancient Sanskrit literature, whereas Indian Orientalists sometimes showed a subconscious bias in favour of theories which assigned to ancient Indian literature a very ancient antiquity. It is not my present purpose to enter into a discussion about the chronology of the ancient Sanskrit literature bearing on the question of law. I shall, however, be content to take the chronology as accepted by Mahamahopadhyaya Dr. P. V. Kane in his History of Dharma sastra. I think, on the whole, the chronology accepted by Dr. Kane can be taken to be sound and correct.  Students of Hindu law know that the Vedas occupy, a place of pride among the sources of Hindu law recognized by Dharma-sastra literature. The period of the Vedic Samrutas, Brahmanas, and Upamsads ranges between 4000 B.C. and 1000 B.C. The composition of the principal Srauta-Sutras of Apastamoa, Asvalayana, Bauohayana, Katyayana, and others and some of the Grhya-Sutras, such as those of Apastamba and Asvalayana, can be assigned to the period between 800 B.C. and 400 B.C. From 600 B. C. to 300 B.C. was the period of the Dharma-Sutras of Gautama, Apastamba, Baudhayana, and Vasistha and the Grhya-Sutras of Paraskara and others. The Arthasastra of Kautilya may have been composed between 300 B.C. and A.D. 100 whereas the present Manu Smrti can claim to have been composed between 200 B.C. and A.D. 100. The Yajna valkya Smrti followed between A.D. 100 and A.D. 300. The period of the Katyayana Smrti on vyavahara can be taken to be roughly between A.D. 400 and A.D. 600. Most of the other Smrtis can be assigned to the period between A.D. 600 and A.D. 900. Visvarupa wrote his commentary on the Yajnavalkya Smrti between A.D. 800 and A.D. 850, whereas Medhatithi wrote His commentary on the Manu Smrti in A.D. 900. Vijhanesvara’s Mitaksara must have been written between A.D. 1070 and A.D. 1100. Jimutavahana, the author of the Dayabhaga, flourished between A.D. 1100 and A.D. 1150. Raghunandana, the author of the Dayatattva lived between A.D. 1520 and A.D. 1575, whereas the period of Nanda Pandita, the author of the Dattaka mimamsa, is between A.D. 1590 and A.D. 1630. Kamalakara Bhatta, the author of the Nirnaya sindhu, must have written his work between A.D. 1610 and A.D. 1640, and Nilakantha Bhatta, the author of the Vyavahara-mayukha, must have composed his work between A.D. 1615 and A.D. 1645. The Viramitrodaya was composed during the same period, whereas Balam Bhatta wrote his commentary on the Mitaksara between A.D. 1750 and A.D. 1820, and the Dharma-sindhu of Kasinatha was composed in A.D. 179014, It would thus be seen that the history of the development of Hindu law spreads over a period of nearly 6,000 years, until the British conquered India. During the British rule, the progress of Hindu law was in a sense arrested. The age of commentators came to an end, and in the age of Judges that followed, commentaries usurped the place of the main source of Hindu law. That, however, is another story. When we speak of the historical background of Hindu law, we must take a broad review of the political, social, and economic developments of India during this long vista of time.  Ancient Indian Polity What, then, was the political system prevailing in India in the earliest Vedic times? Dr. Jayaswal has referred to the Vedic theory about the origin of kingship, which is found in the Aitareya Brahmana. The Brahmana asserts that the devas, i.e. their worshippers, the Hindus originally had no king. In their struggle against the asuras, when the devas found that they were repeatedly defeated, they came to the conclusion that it was because the asuras had a king to lead them, they were successful. Therefore they decided to try the same experiment. And they agreed to elect a King. The devas and asuras were lighting. The asuras defeated the devas. The devas said, “It is on account of our having no king that the asuras defeat us. Let us elect a king”. All consented15.’ The nature of this monarchy can be ascertained from the White Yajur-Veda16, which requires the following verse to be repeated at the coronation : ‘This State to thee (is given). Thou art the director, regulator, firm bearer (of this responsibility) for (the good of) agriculture, for well-being, for prosperity, for growth (of the people), (that is) for success.’ A. C. Das also substantially agrees with the same view. He observes that ‘A distinguished rsi having usually been the moral, spiritual, and political guide of the royal clan that ruled a tribe, we may take it for granted that no successor to a deceased king was appointed without his knowledge or approval. In fact, we have positive evidence to show that he was the real king-maker. In two hymns of the Atharva-Veda17, the Sage-Priest has been called, the king-maker. It was he who suggested the name of a successor to the king probably in consultation with the other members of the royal clan and court, and his nominee presented himself or was invited for election by the people as their king’. The monarchy’, as Zimmer holds, ‘was elective, though it is not clear whether the selection by the people was between the members of the royal family only, or extended to members of all the noble clans 18’. There is a verse in the Rig-Veda19, which suggests election of a king by the people or subjects themselves. Wilson has translated it thus : ‘Like subjects choosing a king, they (the waters) smitten with fear, fled from Vrtra 20.’ A. C. Das also refers to a hymn in the Rg-Veda21 which indicates that the stability of a king on the throne was contingent on the goodwill of his subjects. The coronation oath, called the pratijna, which was administered to the king on the occasion of his coronation seems to lead to the same conclusion. In the Mahabharata, this oath is described as Sruti, which means, it is based on a Vedic text. This is how the oath runs : ‘Mount on the pratijna (take the bath) from your heart (without any mental reservation), in fact and by word of mouth;  “I will see to the growth of the country, regarding it as God Himself and (this) ever and always : Whatever, law there is here, and whatever is dictated by ethics, and whatever is not opposed to polities, I will act according to, unhesitatingly. And I will never be arbitrary”.’ When the king took this oath, the members of the assembly who baud gathered to witness the election of the king said in response, ‘Amen22’. What was the nature of the State governed by a king thus elected by popular will? Was the State sacerdotal? Was it paternalistic? Did it recognize the divine right of kings? Rangaswami Aiyangar, in his Ancient Indian Polity, observes that ‘if it is necessary to sum up the several aims and features of our ancient polity in a single word, we shall have to find an equivalent for the French won! “etatisme”, so as to have it clear that the root principle of our ancient polity was that every function of the State had to be conditioned by and to be subordinated to the need to preserve both Society and the State23’. The State was not sacerdotal, nor even paternalistic. The king was subject to the law as any other citizen, and the divine right of kings known to Western political science was unknown in India. On the whole, the aim of the ancient Indian State may be said to have been less to introduce an improved social order, than to act in conformity with the established moral order. It is undoubtedly difficult to describe precisely or in definite terms the nature of the State, when the basic idea on the subject was being adjusted to changing social environments, and the process of adjustment was spread over such a long period of several thousand years. It would not be possible within the harrow limits of the present article to enter upon a detailed discussion of this subject. On the whole, then, it may be said that the picture of ancient Indian polity which evolves from a careful and analytical study of ancient Sanskrit literature is one of kingship elected by popular will, and later acting in consultation with the priestly class; the ancient Indian theory of kingship treated the kings as trustees of the State, put obedience to divine law above everything else, and required the king to take the oath that he would safeguard the moral, spiritual, and material well-being of the State entrusted to his care.  Social Structure in Ancient India During the Vedic period, the caste system based on birth was probably unknown. The early social structure evidenced classification of society into three divisions based on occupational differences, and the fourth class included the original residents of this country, whom the Aryans had to fight and conquer, before establishing themselves in their new home in India. Tilak’s theory that the Aryans came to India from the Arctic regions and had to conquer the original citizens of India whom they described as Dasa, can be said to have now been accepted by many Oriental scholars. A. C. Das, however, is of the opinion that there is ho evidence in the entire range of Sanskrit literature beginning from the Vedas, that the Aryans came to India as invaders, or that they had a foreign origin24. During the subsequent period when the performance of rituals became more important, the Brahmanas attained position of prominence and power, and considerations of purity and notions of spiritual hierarchy tended to make the social divisions known as castes more rigid and artificial. ‘The various factors’, says Dr. Ghurye, ‘that characterize caste-society were the result, in the first instance, of the attempts on the part of the upholders of the Branmanic civilization to exclude the aoongines and me Sudras from religious and social communion with themselves. . . . Thus, the Vedic opposition between the Arya and the Dasa is replaced by the Brahmanic classification of the dvijati and the ekajati (the Sudra), suggesting the transmutation of the Dasa into the Sudra in the minds of the writers of the Brahmamc and later periods. As an important constituent of the Brahmanic culture in connection with the sacrificial ritual, there arose very exaggerated notions of ceremonial purity25.’ According to Dr. Ambedkar, however, there are two roots from which untouchability has sprung :  contempt and hatred of the Broken Men as of Buddhists by the Brahmanas; continuation of beef eating by the Broken Men after it had been given up by others’. Dr. Ambedkar is of opinion that there was no racial or occupational basis for untouchability26. The subsequent history of the Hindu social structure shows that the caste system, which thrived on the artificial notions of sacrificial purity led to further and further divisions of Hindu society, and it has shown ominous signs of perpetuating itself. In determining the character and assessing the effect of the contribution made by the Brahmana priestly Class to the development of Hindu law, which recognized the existence of the caste system and gave effect to the principles of social superiority and inferiority in many respects, it may be pertinent to refer to the tribute paid to the Brahmana class by Maine, who was himself a merciless critic of this class. Says Maine, ‘It would be altogether a mistake to regard the class whose ideas are reflected in the literature as a self-indulgent ecclesiastical aristocracy. The life which they chalk out for themselves is certainly not a luxurious, and scarcely a happy, life. It is a life passed from first to last under the shadow of terrible possibilities. It is possibly to this combination of self-assertion with self-denial and self-abasement that the wonderfully stubborn vitality of the main Brahmanical ideas may be attributed27.’ Village Communities in Ancient India In considering the historical background of Hindu law, it would also be necessary to remember the existence of the village communities in ancient India. As Sir George Birdwood has truly observed, ‘India has undergone more religious and political revolutions than any other country in the world; but the village communities remain in full municipal vigour all over the peninsula’. Unlike the village communities which thrived in other ancient societies, in India these communities had not been consciously created by autonomous centres within themselves by devolution and delimitation of their own functions; but they were practically sui generis28. It is in the light of this social, economic, and political background that the story about the origin and growth of Hindu law and the principles on which it is based must be studied.  The Evolution of the Concept of Law The Vedas are usually regarded by Hindu convention as a primary source of Hindu law. In fact, the Vedas do not contain any material which can be regarded as the lawyer’s law in the modern sense of the term. They consist of hymns which mainly deal with religious rites, true knowledge and liberation. Some of the hymns contain exquisite descriptions of nature, and can be justly regarded as the best specimens of the most ancient lyrical literature. No doubt, some hymns contain passages which make incidental references to the social customs and conventions prevailing at the time, and it is from these incidental references that rules of law have to be gleaned and collected. It is remarkable that the English language does not seem to contain any generic term which denotes both legal and ethical meanings in the concept of law, whereas the Sanskrit word dharma, which is generally used in Smrti literature to denote law, cannot be dissociated from considerations of ethics and morality. But even the word dharma has passed through several vicissitudes, and it is really difficult to render its meaning definitely or precisely. The most ancient concept of law which is found in the Rg-Veda is represented by the word rta. This word denotes the supreme transcendental law or the cosmic order which rules the universe, and to which even the gods owe allegiance. As Dr. Kane points out, vrata, dharma, dhaman, and svadha represent Special aspects of rta. Rta is the organized principle of the universe and the divine ordering of the earthly life 29. Subsequently, the concept of dharma took the place of rta. Dr. Kane has observed that the word dharma occurs at least fifty-six times in the Rg-Veda..., The word is clearly derived from the root dhr (to uphold, to support, to nourish). In most of the cases, the meaning of dharma is religious ordinance or rites. In some passages, it appears to mean fixed principles or rules of conduct. In the Aitareya Brahmana, the word dharma Seems to be used in an abstract sense, viz. the whole body of religious duties30. Dr. Kane’s conclusion is that the word dharma passed through several transitions of meaning, and ultimately, its most prominent significance came to be the privileges, duties, and obligations of a man, his standard of conduct as a member of the Aryan community, as a member of one of the castes, and as a person in a particular stage of life31. Jaimini defines dharma as a desirable goal or result that is indicated by injunctive passages32. The Vaisesika-Sutra defines dharma as that from which result happiness and final beatitude33. In the Buddhist sacred books, the word dharma often means the whole teaching of the Buddha. In the Smrti literature, the word dharma was used in a comprehensive sense, and it included amongst many other topics what may be regarded as rules of secular law. This branch of dharma dealing with secular law known by the word vyavahara can be regarded as the most developed phase in the evolution of the concept of law, which corresponds with the modern sense of municipal or secular law. According to Katyayana, the etymological meaning of the word vyavahara indicates that it is that branch of law, which removes various doubts. Vi means various, ava means doubt and hara means removal. The object of vyavahara on this interpretation would be the removal of doubts. The administration of justice undoubtedly aims at the discovery of truth; and since law helps to remove doubts, it does help the administration of justice in its quest for truth. The view that vyavahara refers to secular and municipal laws is supported by the statement in the Mahabharata that the authority of the vyavahara laws is as sacred and great as that of the dharma law. Whereas dharma law has its origin in Vedic law, the vyavahara law has its origin in political governance and the king; governance is a sacred act being ordained by the Creator, and so its laws are also sacred34. Thus, it appears that whereas the concept of dharma treated law as part of ethics, morality, and religion, the concept of vyavahara is a more developed concept, and it deals principally, if not exclusively, with matters which fall within the purview of municipal or secular law.  Sources of Hindu Law According to Manu, there are five different Sources of dharma; the whole Veda is the main Source of dharma, and next is the tradition and practice of those who know the Vedas. Further, the usages of various men and self-satisfaction35. Similarly, Yajnavalkya declares that ‘the Vedas, the Smrtis, the usages of good men and what is agreeable to one’s self, and desire born of due deliberation—these are traditionally recognized as the sources of dharma36.’ The nature and extent of the guidance derived from the Vedic texts in determining the provisions of Hindu law have already been indicated. Even a cursory glance at the Smrti literature would show that the Smrtis deal with numerous topics as falling under the title Dharma-sastra. As Medhatithi points out, Manu, for instance, deals with varna-dharma, asrama-dharma, varnasrama-dharrna, naimittika-dharma (prayascitta), and guna-dhanna (the duty of a crowned king, whether Ksatriya, or not, to protect). It is really the vyavahara part of the Smrti literature which deals with law, properly so called. Kumarila in his Tantra-varttika argues that the Smrtis of Manu and others are dependent upon the memory of other authors, and memory depends for its authority on the truthfulness of its source. Consequently, the authority of not a single Smrti can be held to be self-sufficient like that of the Vedas; and yet, inasmuch as we find them accepted as authoritative by an unbroken line of respectable persons learned in the Vedas, we cannot reject them as absolutely untrustworthy. Hence it is that there arises a feeling of uncertainty regarding their trustworthy character37. Thus, the Smrtis are treated as a source of Hindu law, primarily because they purport to reproduce from memory the provisions in me Vedas themselves. That is the conventional view about the part played by the Smrtis in the growth of Hindu law. The history of the development of Hindu law shows that custom, which is regarded as a source of law, has played a very important role in making Hindu law progressive and introducing into it from time to time provisions to bridge the difference between the letter of the law and the requirements of changing social needs. Ancient Hindu jurists seem to recognize that if there is a conflict between the practice prevailing in the community and the letter of the law found in the Smrtis or Srutis, it is generally the practice that would prevail. Manu says, ‘Acaras (customs and usages) are transcendental law, and so are the practices declared in the Vedas and the Smrtis. Therefore, a twice-born person desirous of his own welfare must make efforts to follow it.’ Dr. Kane takes the view—and I am inclined to agree with him— that the acara which is mentioned by Manu has to be taken by itself and not as qualified by the words srutyukta and smarta. Texts of Gautama, Manu, Katyayana, and other writers show that the customs and usages of which notice has to be taken are those of districts (desa or janapada), towns and villages, castes, families, guilds, and corporations or groups38. In this connection, it would be pertinent to refer to the significant observation of Vijnanesvara while commenting on Yajnavalkya, II. 118-119, that the texts in the section are mostly recitals of what actually prevails among the people. In other words, the Mitaksara makes it clear that the relevant provisions contained in the Yajnavalkya Smrti have given effect to the prevailing local practices among the people. In ancient Dharma-sastra literature, we find illuminating discussions as to how a conflict between laws evidenced by different texts has to be resolved. Kautilya says that in any matter where there is conflict between Dharma-sastra and practice or between Dharma-sastra and any secular transaction, the king should decide that matter by relying on dharma. If the Sastra comes in conflict with any rational or equitable rule, the latter shall be the deciding factor, and the strict letter of the text shall be nowhere39. Indeed, Apastamba has mentioned that some jurists in his time held that the rest of the Dharma-Sutra not set out in his book might be gathered from women and men of all castes40. Both Brhaspati and Narada lay down that legal decisions should not be arrived at merely on the basis of the Sastra, and that when a decision is devoid of reasoning, there is loss of dharma. for in a judicial proceeding even a good man may be held to be a bad one, or what is good may be held to be sinful, just as Mandvva was held to be a thief on a decision without thoughtful reasoning41. This shows that even when the texts of the Sruti and Smrti were respected, jurists pointed out the inevitable importance of adopting a rational approach in deciding legal issues.  In due course of time, when the distance between the letter of the Smrtis and the prevailing customs threatened to get wider, commentators appeared on the scene, and by adopting ingenious interpretations of the same ancient texts, they achieved the laudable object of bringing the pro visions of the law into line with popular usages and customs. The part played by Vijnanesvara in this connection deserves special mention. The fiction of interpretation is seen in the three systems of jurisprudence known to us, the Roman, the English, and the Hindu system. But as Mr. Sankararama Sastri points out, there is an interesting distinction among the three systems on this point. Whereas the authority of the English case law is derived from the Bench, that of the Roman Responsa Prudentium and the Sanskrit commentary is derived from the Bar. While in England the development of law is left entirely to the exigencies of disputes actually arising for adjudication, in India and at Rome, it was possible for the jurist to evolve a coherent and homogeneous body of laws without reference to actually contested cases42. In this connection, it may be interesting to refer to the observations of Bentham that a legal fiction is a ‘wilful falsehood having for its object the stealing of legislative power by and for hands which could not and durst not openly claim it—and but for the delusion thus produced could not exercise it’. Nevertheless, the legal fiction of interpretation has played a very progressive part in the development of Hindu law. It is because this process was arrested during the British rule in this country that Hindu law came to be fossilized, as judges relied mainly on the commentators without taking into account the changing customs and usages in the Hindu community.  The genesis of Hindu law, to which incidental references are found in the Vedic literature, still remains to be considered. Jayaswal has propounded the thesis that the ancient and primary source of Hindu law is samayas, that is to say, resolutions passed by popular bodies. Apastamba describes the dharma laws as those which regulate conduct, and which are based on resolutions or samayas43. The word samaya may mean a resolution passed by corporate bodies. According to Jayaswal, the dharma samayas were laws resolved upon by certain popular bodies, which were bodies of the Vedic schools, collectively or individually. The samayas were originally communal rules agreed upon in assemblies44. It is these assemblies which in due course may have developed ‘into village communities, which are a special feature of the ancient Indian political life. In his last sutra, Apastamba refers to the same source of law when he says that the authoritative works do not exhaust the dharma— laws, and hence the unanimous practice of all the Aryan countries is to be referred45. It is true that the Dharma-Sutras mention the Vedas as the chief source of Hindu law. The samaya source to which Apastamba refers is not to be found in the later literature. Patanjali recognizes the authority of the Dharma-Sutras, collectively calling them Dharma-sastra. The sources of law mentioned by Manu and Yajnavalkya have already been indicated. That the conventions or resolutions of corporate bodies formed part of law is shown by an interesting inscription referred to by Dr. Mahalingam in his book Administrative and Social Life under Vijayanagar46. The inscription in question records an agreement between the Brahmanas of the locality that they should perform marriages only in the kanyadana form, and that those who pay or receive money shall be excommunicated and punished by the king. It may therefore not be unreasonable to assume that the primary and ancient source of Hindu law may have consisted of the resolutions or agreements reached by groups of people in their corporate assemblies.  The Relation between Artha-sastra and Dharma-Sastra The discussion about the sources of Hindu law and the rules adopted by Hindu law in resolving the conflict between these sources inter se inevitably leads to the most important question in the present study. What is the relation between Artha-sastra and Dharma-sastra? The publication by Dr. Shama Sastri of the Arthasastra of Kautilya in 1909 in the Mysore Sanskrit Series was an epoch-making event in the history of the research on Hindu law, Kautilya wrote this work between 300 B.C. and A.D, 100. This work is anterior to Mahu, and the discussion contained in the ‘Dharmasthiyam’ part of the work is absolutely unique in legal history. It can legitimately claim to be one of the earliest secular codes of law in the world, and the high level at which legal and juridical principles are discussed, the precision with which statements are made, and the absolutely secular atmosphere which it breathes throughout, give it a place of pride in the history of legal literature. It throws a flood of light on the social, economic, and political conditions of the country at the time. Kautilya’s Arthasastra is divided into 15 adhikaranas and 150 chapters’, and it deals with nearly 180 topics. The total number of verses in the work is about 6,000. In between verses, prose is also sometimes interspersed. This work shows a systematic arrangement of topics and a remarkable unity of design. There can be no doubt that it is the work of a brilliant author who approached his problem in a purely secular, legalistic, and objective manner. It appears that ‘Kautilya’s Arthasastra refers to more than a dozen previous authors on Artha-sastra; and this naturally leads to the inference that municipal and secular law had been expounded before Kautilya by several other authors. And it would inevitably take the foundation of the school of Artha-sastra to a date much anterior to that of Kautilya. The question which arises for consideration is, did” secular law as propounded in the Arthasastra begin to function and progress independently of Hindu law which is to be found in Smrti literature?  Jayaswal has strongly pleaded for the view that Artha-sastra had progressed independently of the Dharma-sastra, until the present Manu Smrti was composed47. According to him, the Arthasastra in substance embodies the imperial code of law of the Mauryas, whereas the Manava Dharma-sastra is based on the psychology of the Hindu nation of the Brahmana empire of the Sungas. Yajnavalkya, OR the other hand, who followed Manu, represents the view of Hindu law as it prevailed in the Satava hana regime. It is more liberal than Manu in its general aspects and less generous to the Brahmanas. In some important matters, it has more affinity with the Arthasastra than with Manu. Unlike Manu, Yajnavalkya devotes larger space to the Consideration of the problems of civil law, properly so called. Yajnavalkya deals with contract generally and with partnership of sea-traders and artisans, and the law of corporations is also considered by him. According to Jayaswal’s theory, after the Manu Smrti achieved eminence and authority, the independent existence of the Arthasastra came to an end, and vyavahara became merely a part of the Dharma-sastra. The Yajnavalkya Smrti “which Virtually repealed the Manu Smrti no doubt adopted a more liberal and less Brahmanical approach; but even Yajnavalkya treated vyavahara as a part of dharma, and that settled the pattern and form of Hindu law for the future. In course of time, commentators followed, and they made requisite adjustments in the provisions of Yajnavalkya, and consistently with the social trends of their times, the liberal provisions of Yajnavalkya came generally to be narrowed down. Rangaswami Aiyangar seems broadly to agree with this view48.  The theory thus propounded by Jayaswal has been strongly criticized by S. Varadachariar49. He points out that it is not correct to say that the Manu Smrti was the first book of Dharma-sastra, which included the discussion of law, and that it could not be assumed to have come into existence only during the Sunga period, He also relies on the fact that some topics of law have, in fact, been dealt with even in the Dharma-Sutras of Gautama, Baudhayana, and Apastamba, and that the supremacy of the Brahmanas did not commence with the Sunga dynasty, it had, in fact, begun after the fall of Buddhism. But the main point which Varadachariar makes is that Jayaswal’s theory is inconsistent with the history of evolution of the other systems of law, to which I have already adverted. Dr. Kane seems to take the view that Artha-sastra is really a branch of Dharma-sastra, since the former deals with the responsibilities of kings, for whom rules are laid down in many treatises on dharma50.  I am inclined to agree with Jayaswal. It would be interesting to notice a few of the points of difference between Kautilya and Manu, because these differences indicate a sharp and radical dis parity of approach. Kautilya allows niyoga (levirate) in its ancient fullness to widows ana to the wives of men afflicted with disease; Manu condemns it. Kautilya would recognize the existence of courtesans and would seek to organize them; whereas Manu would punish them as a public scourge. Kautilya would attempt to regulate gambling and drink; Manu condemns it as sin. Kautilya knows of remarried widows and unmarried mothers; Manu would forbid remarriages except in the case of widows who were virgins. Manu strongly disapproves of heresy, while Kautilya does not seem to share that view, because he would go no further than deprive apostates of the right of maintenance from the family estate, and even in respect of apostates, he would require the mother to be maintained by her offspring. Kautilya and Manu differ in regard to the shares to be allotted to sisters on inheritance. Kautilya forbids suicide, and disapproves of sati, whereas Manu does not seem to renounce sati expressly. Kautilya condemns addiction to astrology; Manu would only discourage the pursuit of astrology as a profession. There are also several differences in regard to the status, privileges, and concessions enjoyed by Brahmanas under Kautilya and Manu. These differences can be satisfactorily explained on the theory that the Arthasastra was dealing with secular law and ap proached the consideration of relevant questions from a purely secular point of view, whereas Dharma-sastra considered the same problems from an ethical, religious, or moral point of view, and? gave effect to the notions on which the Hindu social structure was based.  There is another aspect of the matter which leads to the same conclusion. Kautilya holds that dharma, vyavahara, customs, and royal ordinance are the four legs of lawsuits, that the latter in each case supersedes the former. This clearly assigns a prominent position to royal ordinance. This position of royal ordinance is not recognized by Dharma-sastra. Then again, Kautilya refers to the dharma rule, as distinguished from the rule of vyavahara In dealing with the question of awarding interest. He says that interest allowed by the dharma—law is one and a quarter per cent per month; and he adds that the rate allowed by vyavahara is five per cent per month. This clearly shows that the provisions of vyavahara according to the Arthasastra on the question of interest were distinct and separate from similar provisions in Dhanna-sastra. On the whole, then, it appears to be reasonable and sound to assume the existence of Artha-sastra functioning independently of Dharma-sastra and dealing with secular or municipal law, not necessarily as a part of dharma or religion. The artha—law under Artha-sastra recognized the authority of the king’s laws, and treated the kingly enactments as of binding character.  It is true that the emergence and development of a purely secular body of law at such an early date would be a very remarkable achievement, and it would seem to be somewhat inconsistent with the well-recognized theory of the evolution of laws in ancient societies. But the existence of a large; body of legal literature passing under the name of Arthasastra poses a problem; and it cannot be resolved by merely treating Artha-sastra as part of Dharma-sastra; because the scope of the inquiry in the two tests of works, their approach, their outlook, the nature and number of the topics taken for discussion by them, and the disparity in the specific provisions on material points do not easily admit of the said explanation. It may be that subsequent to Manu, Artha-sastra ceased to exist or function separately, and the Hindus began to take their law from Smrtis and commentaries on them. But the discovery of Kautilya’s Arthasastra has administered a healthy shock to the accepted notion about the origin of Hindu law, and it would not be right to reject Jayaswal’s theory substantially and principally on the ground that it does not fit in with the development of law in ancient times in other countries.  Indeed, it may be legitimate to say that the very harsh criticism made by Maine against ancient Hindu law must now be regarded as unjustified. ‘On the whole’, says Maine, ‘the impression left on the mind by the study, of these books (books on Dharma-sastra) is, that a more awful tyranny never existed than this which proceeded from the union of political, intellectual, and spiritual ascendancy51’. And he adds that ‘Hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it in immense apparatus of cruel absurdities52’. Maine speaks very highly of the Twelve Tables, and observes that ‘they were not entitled to say that if the Twelve Tables had not been published, the Romans would have been condemned to a civilization as feeble and perverted as that of the Hindoos, but this much at least is certain that with their code they were exempt from the very chance of so unhappy a destiny53’. It must be stated Tn fairness to the great author that at the time when he wrote his book, Oriental scholars were not aware of the existence of Artha-sastra, and Kautilya’s Arthasastra had not seen the light of day. But if the Arthasastra had existed long before the Roman Tables were composed, the harsh language used by Maine about ancient Hindu lawyers must be characterized as wholly unjustified and based on insufficient knowledge of the development of Hindu law.  I am free to confess that before the last word is spoken on this vexed question of the relation between Artha-sastra and Dharma-sastra, it would be necessary to examine all available literature comprehensively and critically. Perhaps, in course of time, other works on Artha-sastra may be discovered, and they may throw additional light on the question. Unfortunately, during the British rule, Hindu law has not been studied ‘from within’, with the help of Sanskrit texts. As the Privy Council observed in the case of Collector of Madura v. Mootoo Ramalinga54, the duty of a judge administering Hindu law was not ‘so much to enquire whether a disputed doctrine is fairly deducible from the earliest authority, as to ascertain whether it has been received by the particular school which governs the District with which he has to deal’. This approach imposed limitations on judges, and in the administration of Hindu law, commentators respected in several areas assumed paramount importance. But, for a proper study of Hindu law, its origin, growth, and development, it would be necessary to undertake a study of all the Sanskrit texts available on the subject The relevant literature offers, as Dr. Rash Behari Ghose observed long ago, a rich and varied field for enquiry. The harvest has long been ripening for the sickle, but as yet, to our reproach, the reapers are few in number, and that wealth of materials which should be our pride is now our disgrace 55.’ Dr. Ghose also prophetically expressed the hope ‘that Hindu law will at no distant date render the same service to jurisprudence that Sanskrit has already done to the sister science of philology’. I believe that when the part played by Artha-sastra in the development of Hindu law is fully discovered, the prophecy made by Dr. Ghose would come true.

Author Name: Hon'ble Justice P. B. Gajendragadkar