Anglo-Hindu law reflected the difference in values between "law" in Western tradition and colonial Hindu tradition. [1] It was not until the 1770s, when the British Empire came to colonize India, that the concept of law came into practice. [2]
Colonial Hindu law marks a long span of nearly 200 years, beginning in 1772 and ending in 1947. This period may be split into two main phases. The first phase (beginning in 1772 and ending in 1864) is marked by three main events: translation of the Dharmaśāstras by British scholar-administrators, the use of court pandits to define laws and rules, and the rise of case law. [3] The second phase (from 1864 to 1947) is marked by the dismissal of court pandits, the rise of legislative processes, and a codified law system. [4]
The British had been observing the country for nearly twenty years before their first implemented legal plan for renovating India's method of governing. [5] As Europeans began gaining power and increasing the number of territories they controlled, they gradually became acquainted with the way the different territorial systems operated. Beginning with the coastal territories and moving inland, the British accumulated more Indian states. However, they could not oppose the customs and traditions that were already in place without offending the native peoples because they only held a minimal amount of power to implement change and enact laws, they had to respect the wishes the natives or reach a compromise. [6] The British had to administer law coinciding with the rule of each zamindar (hereditary leader); this meant that only customary law could be implemented at that time. [7]
There was tension between the two religious groups (Muslim and Hindu), since the sources of their rules differed greatly. The Muslims' governing body (and laws) derived from the Qur'an and books written by doctors who had studied Sharia. For the Hindu population, however, the guidelines on how to live life came from the Dharmaśāstras (Sanskrit texts describing duties). Although laws in place were text-based, there was still a great deal of variation between different regions. Customary law was the main type of government in the territories and differed greatly in defining crime, punishment, guilt, how courts were organized and so on. [8] [9]
The British saw this system as unfair, due to the ambiguity of laws in different regions and lack of a common law. [10] They believed this system to be dysfunctional and an invitation for corruption, due to the ability of judges to decide a case as they saw fit with no precedent. For example, two cases could have virtually-identical facts but the outcome and punishment of the two might be very different. This was not a problem in the Indian tradition, but the British proposed a plan for unifying laws.
India underwent a seismic shift in the way in which she was governed on August 21, 1772, when, in Bengal's capital city Calcutta, a new plan of governance was implemented by Warren Hastings. This marked the first step towards uniting Muslim and Hindu legal traditions. [11] The “Plan for the Administration and Justice in Bengal” (more commonly known as the "Judicial Plan") laid the foundation for replacing ambiguous laws that were not formally written down into a British system, with different branches of government. Warren Hastings’ Judicial Plan included a provision which left certain religious matters to traditional law. [12] This stipulated that inheritance, marriage, caste, and other religious use or institutions should be in accordance with the Dharmaśāstras and not subject to British law. [3]
Ram Mohan Roy, "the Father of Indian Renaissance," was an Indian reformer and writer who was one of the founder of the Brahmo Sabha in 1828, the precursor of the Brahmo Samaj, a social-religious reform movement in the Indian subcontinent. He was given the title of Raja by Mughal emperor Akbar II.
The Uniform Civil Code is a proposal in India to formulate and implement personal laws of citizens which apply on all citizens equally regardless of their religion. Currently, personal laws of various communities are governed by their religious scriptures. Personal laws cover marriage, divorce, inheritance, adoption and maintenance. While articles 25-28 of the Indian Constitution guarantee religious freedom to Indian citizens and allow religious groups to maintain their own affairs, article 44 expects the Indian state to apply directive principles and common law for all Indian citizens while formulating national policies.
Smriti Literature in Hinduism The smṛti texts are a body of Hindu texts usually attributed to an author, traditionally written down, in contrast to Śrutis considered authorless, that were transmitted verbally across the generations and fixed. Smriti is a derivative secondary work and is considered less authoritative than Sruti in Hinduism, except in the Mimamsa school of Hindu philosophy. The authority of smriti accepted by orthodox schools is derived from that of shruti, on which it is based.
Shastra is a Sanskrit word that means "precept, rules, manual, compendium, book or treatise" in a general sense. The word is generally used as a suffix in the Indian literature context, for technical or specialized knowledge in a defined area of practice.
The Manusmṛti, also known as the Mānava-Dharmaśāstra or the Laws of Manu, is one of the many legal texts and constitutions among the many Dharmaśāstras of Hinduism.
Dharmaśāstra are Sanskrit Puranic Smriti texts on law and conduct, and refer to treatises (śāstras) on Dharma. Like Dharmasūtra which are based upon Vedas, these texts are also elaborate law commentaries based on vedas, Dharmashastra themselves evolved from dharmshutra. There are many Dharmashastras, variously estimated to number from 18 to over 100. Each of these texts exists in many different versions, and each is rooted in Dharmasutra texts dated to the 1st millennium BCE that emerged from Kalpa (Vedanga) studies in the Vedic era.
Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval era Indian texts. It is one of the oldest known jurisprudence theories in the world and began three thousand years ago whose original sources were the Hindu texts.
India since its independence in 1947 has been a secular state. The secular values were enshrined in the constitution of India. India's first prime minister Jawaharlal Nehru is credited with the formation of the secular republic in the modern history of the country. With the Forty-second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, the Supreme Court of India in the 1994 case S. R. Bommai v. Union of India established the fact that India was secular since the formation of the republic. The judgement established that there is separation of state and religion. It stated "In matters of State, religion has no place. Any State government which pursues nonsecular on policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Furthermore, constitutionally, state-owned educational institutions are prohibited from imparting religious instructions, and Article 27 of the constitution prohibits using tax-payers money for the promotion of any religion.
The Mitākṣarā is a vivṛti on the Yajnavalkya Smriti best known for its theory of "inheritance by birth." It was written by Vijñāneśvara, a scholar in the Kalyani Chalukya court in the late eleventh century in the modern day state of Karnataka. Along with the Dāyabhāga, it was considered one of the main authorities on Hindu Law from the time the British began administering laws in India. The entire Mitākṣarā, along with the text of the Yājñavalkya-smṝti, is approximately 492 closely printed pages.
Interactions between Muslims and Hindus began in the 7th century, after the advent of Islam in the Arabian Peninsula. These interactions were mainly by trade throughout the Indian Ocean. Historically, these interactions formed contrasting patterns in northern and southern India. While there is a history of conquest and domination in the north, Hindu-Muslim relations in Kerala and Tamil Nadu have been peaceful. However, historical evidence has shown that violence had existed by the year 1700 A.D.
John Duncan Martin Derrett was Professor of Oriental Laws in the University of London, from 1965 to 1982, and afterwards Emeritus Professor.
Modern Hindu law is one of the personal law systems of India along with similar systems for Muslims, Sikhs, Parsis, and Christians. This Hindu Personal Law or modern Hindu law is an extension of the Anglo-Hindu Law developed during the British colonial period in India, which is in turn related to the less well-defined tradition of Classical Hindu Law. The time frame of this period of Hindu law begins with the formal independence of India from Great Britain on August 14, 1947, and extends up until the present. While modern Hindu law is heralded for its inherent respect for religious doctrines, many still complain that discrimination still pervades the legal system, though efforts to modernize and increase the legal rights of the marginalized have been made.
The Yajnavalkya Smriti is one of the many Dharma-related texts of Hinduism composed in Sanskrit. It is dated between the 3rd and 5th century CE, and belongs to the Dharmashastra tradition. The text was composed after the Manusmriti, but like it and Naradasmriti, the text was composed in shloka style. The legal theories within the Yajnavalkya Smriti are presented in three books, namely achara-kanda (customs), vyavahara-kanda, and prayascitta-kanda.
Atmatusti is a source of dharma in Hinduism, usually translated into English as being "what is pleasing to oneself." The four sources of dharma are: śruti (Vedas); smṛti, "that which is remembered, tradition: Dharmaśāstra, Puranas, Epics; ācāra, good custom; and ātmatuṣṭi.
Classical Hindu law is a category of Hindu law (dharma) in traditional Hinduism, taken to begin with the transmittance of the Vedas and ending in 1772 with the adoption of "A Plan for the Administration of Justice in Bengal" by the Bengal government.
Anglo-Hindu law is the case law that developed in British India, through the interpretation of the Hindu scriptures and customary law in the British courts.
The Hindu code bills were several laws passed in the 1950s that aimed to codify and reform Hindu personal law in India, abolishing religious law in favor of a common law code. The Indian National Congress government led by Prime Minister Jawaharlal Nehru successfully implemented the reforms in 1950s. This process was started during the British rule of India.
Ṣadr Faujdari ʿAdālat were courts of criminal justice in Mughal and British India. The Faujdari criminal courts are considered the beginning of Hindu and Muslim "personal law" separated from the jurisdiction of civil law in colonial India – a juridical norm preserved as a key principle of democratic secularism in postcolonial India.
Hindu personal laws are the laws of the Hindus as they applied during the colonial period of India beginning from the Anglo-Hindu Law to the post-independent Modern Hindu Law. The British found neither a uniform canon administering law for the diverse communities of India nor a Pope or a Shankaracharya whose law or writ applied throughout the country. Due to discrepancies in opinions of pandits on the same matter, the East India Company began training pandits for its own legal service leading to the setting up of a Sanskrit College in Banaras and Calcutta, to help them arrive at a definitive idea of the Indian legal system. It is from here that the Hindu Personal Law had its beginnings; and more appropriately so in 1772, when Warren Hastings appointed ten Brahmin pandits from Bengal to compile a digest of the Hindu scriptural law in four main civil matters—marriage, divorce, inheritance and succession. The Hindu Personal Laws underwent major reforms over a period of time, and created social and political controversies throughout India.
A Pandit is an individual with specialised knowledge or a teacher of any field of knowledge whether it is shashtra or shastra (Weapons) in Hinduism, particularly the Vedic scriptures, dharma, or Hindu philosophy; in colonial-era literature, the term generally refers to lawyers specialized in Hindu law. Whereas, today the title is used for experts in other subjects, such as music. Pundit is a loanword in English meaning "an expert in a particular subject or field who is frequently called upon to give their opinions to the public".
