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Law in India primarily evolved from customary practices and religious prescriptions in the Indian subcontinent, to the modern well-codified acts and laws based on a constitution in the Republic of India. The various stages of evolution of Indian law is classified as that during the Vedic period, the Islamic period, the British period and post independence.[ citation needed ]
In comparison with modern law, the classical Hindu law was a peculiar legal system as it followed a unique arrangement of law and polity with a unique scheme of values. Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The main aim of the law in the Vedic period was to preserve "dharma" which means righteousness and duty. [1] [2] Dharma consists of both legal duties and religious duties. It not only includes laws and court procedures, but also a wide range of human activities like ritual purification, personal hygiene regimes, and modes of dress. Dharma provided the principal guidance by which one endeavored to lead his life.
The sources of law during this period were Sruti, Smriti and acharas (customs). Sruti consist of the 4 Vedas namely Rigveda, Yajurveda, Samaveda and Atharvaveda. These Vedas chiefly dealt with religious duties, practices and customs. The second source is called Smriti, which literally means 'as remembered' and refers to tradition. They are the humanly authored written texts that contain the collected traditions.
Some of the most prominent Smriti are Dharmashastras which includes Manusmriti (200BC-200CE); Yajnavalkya Smriti (200-500CE); Naradasmriti (100BC-400CE); Visnusmriti (700-1000CE); Brhaspatismriti (200-400CE); and Katyayanasmriti (300-600CE). These texts were often used for legal judgments and opinion. They dealt with the subject matter of dharma and were guidebooks on dharma with rules of conduct and rites. Dharmasutra (the first four texts of the Dharmashastra) discuss the rules for duties for all the ashrama: the student-hood, the house holdership, the retirement or forest dwelling, and renunciation. Also, they provide the rites and duties of kings and court proceedings. Other issues that are Dharmasutras cover include rules about one's diet, crimes and punishments, daily sacrifices, and funeral practices.
Dharmashastra contains three categories or topics. The first is the âchâra, which provides rules on daily rituals, life-cycle rites, as well as specific duties and proper conduct that each of the four castes or varnas have to follow. The daily rituals include practices about daily sacrifices, the kind of food to eat and how to obtain them, and who can give and who can accept religious gifts. The life-cycle rites are the rituals that are conducted on important events in one's life like birth, marriage, and tying of the sacred thread. Acharas also provide rules for duties for all the ashrama. Ashrama are the four stages of life that include: Brahmacharya (the student life), Grihastha (the householder), Vanaprastha (the forest dweller), and Sanyasa (the renouncer). The second topic enumerated in the Dharmashastra is the 'vyavâhara'. Vyavahara are laws and legal procedures. They include the'rajadharma' or the duties and obligations of a king to organize court, listen and examine witnesses, decide and enforce punishment and pursue justice. The third category is called the 'prâyaschitta', which lays down rules for punishments and penances for violating the laws of dharma. They are understood to remove the sin of committing something that is forbidden.
During the Vedic period the legal procedures including that of filing case were called vyavahara. The equivalent of modern plaint was called "purvapaksha", and that of written statement as "uttar". The trial was called "kriya" and verdict as "nirnaya". The profession of lawyers or advocates were unknown during this period. Trial by jury and trial by ordeal were the two types of trials that existed during the period. According to J. Rama Jois the ancient Indian and constitutional system had established a duty based society. [3] It postulated that everybody from the king to the lowest of society is bound to fulfil his/her duty towards the society. This was same for the whole of India, notwithstanding the existence of larger and smaller kingdoms and the supremacy of Dharma (law) over the kings as declared in the authoritative texts was respected in letter and spirits/ [4] Thus there were no absolute monarchies. The Dharmasastras asked the kings to look upon the people as God (Praja Vishnu) and serve them with love and reverence. [4] The doctrine of "king can do no wrong" was not accepted and the king himself was subjected to law. [4] [5]
In ancient India, Naman was regarded as the fountain of justice has to act as the lord of Dharma and was entrusted with the supreme authority of the administration of justice and his foremost duty was to protect the rights of his subject. The King's Court was the highest court, next to which came the court of the Chief Justice (Pradvivaka). The King's Court was the highest court of appeal as well as an original court in cases of vital importance to the state. In the King's Court the King was advised by learned people like Learned Brahmins, the ministers, the Chief Justice etc. As mentioned by Brihaspati, there were four kinds of tribunals, namely, stationary, movable courts held under the royal signet in the absence of the King, and commissions under the King's presidency. So there was hierarchy of courts. In villages, the village councils (Kulani) dealt with simple civil and criminal cases. At a higher level in towns and districts the courts were presided over by government officers under the authority of the King to administer justice. In order to deal with problems among members of artisanal class, traders etc. trade guilds were authorised to exercise an effective jurisdiction over their members. Family courts were also established. Puga assemblies made up of groups of families in the same village decided civil disputes amongst family members. Minor criminal cases were dealt with by judicial assemblies in villages whereas criminal cases of a serious nature were presented before the central court usually held under the King or royal authority. The appeal system was practised and the King was the highest body of appeal. One significant feature of the ancient Indian legal system was the absence of lawyers. [6] Another notable feature was that a bench of two or more judges was always preferred to administer justice rather than a single individual being the sole administrator of justice. [7]
Sharia and Islamic economics fully spread in the Indian subcontinent with the establishment of Delhi Sultanate, Bengal Sultanate and Gujarat Sultanate. [8] [9]
In the 17th century, the Mughal Empire's sixth ruler, Aurangzeb, compiled the Fatawa-e-Alamgiri with several Arab and Iraqi Islamic scholars, which served as the main governing body in most parts of South Asia. [10] [11]
During the British Raj, the Anglo-Hindu law was introduced with the codification of Indian Law. [12]
Dharma is a key concept with multiple meanings in the Indian religions, among others. The term dharma is held as an untranslatable into English, it is understood as reference to behaviours which are in harmony with the "order and custom" that sustain life; "virtue", or "religious and moral duties". The antonym of dharma is adharma.
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.
Upanayana is a Hindu educational sacrament, one of the traditional saṃskāras or rites of passage that marked the acceptance of a student by a preceptor, such as a guru or acharya, and an individual's initiation into a school in Hinduism. Some traditions consider the ceremony as a spiritual rebirth for the child or future dvija, twice born. It signifies the acquisition of the knowledge of and the start of a new and disciplined life as a brahmacharya. According to the given community and its regional language, it is also known by numerous terms such as mekhal in Kashmiri (मेखल), janeo in Punjabi (ਜਨੇੇਓ), jaanoi in Gujrati (જાનોઇ), janya in Sindhi (जन्य), janev in Bhojpuri (जनेव), munja in Marathi (मुंजा), munji in Konkani (मुंजी), poite in Bangla (পৈতৈ), brataghara in Odia (ବ୍ରତଘର), logun dioni in Assamese, bratabandha in Nepali (ब्रतबन्ध), chewar in Newari (छेवार), upanayana in Kannada (ಉಪನಯನ), upanayanamu in Telugu (ఉపనయనము), upanayanam in Malayalam (ഉപനയനമ്), and upanayanam or poonool in Tamil. The Upanayanam ceremony is arguably the most important rite for Brahmin, Kshatriya, and Vaishya males, ensuring his rights with responsibilities and signifying his advent into adulthood.
Vānaprastha literally meaning 'way of the forest' or 'forest road', is the third stage in the 'Chaturasrama' system of Hinduism. It represents the third of the four ashramas (stages) of human life, the other three being Brahmacharya, Grihastha and Sannyasa.
Sannyasa, sometimes spelled Sanyasa or Sanyasi, is life of renunciation and the fourth stage within the Hindu system of four life stages known as Ashramas, with the first three being Brahmacharya, Grihastha (householder) and Vanaprastha. Sannyasa is traditionally conceptualized for men or women in late years of their life, but young brahmacharis have had the choice to skip the householder and retirement stages, renounce worldly and materialistic pursuits and dedicate their lives to spiritual pursuits.
Āpastamba Dharmasūtra is a Sanskrit text and one of the oldest Dharma-related texts of Hinduism that have survived into the modern age from the 1st millennium BCE. It is one of three extant Dharmasutras texts from the Taittiriya school of Krishna Yajurveda, the other two being Baudhayana Dharmasutra and Hiranyakesin Dharmasutra.
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.
Āryāvarta is a term for the northern Indian subcontinent in the ancient Hindu texts such as Dharmashastras and Sutras, referring to the areas of the Indo-Gangetic Plain and surrounding regions settled by Indo-Aryan tribes and where Indo-Aryan religion and rituals predominated. The limits of Āryāvarta extended over time, as reflected in the various sources, as the influence of the Brahmanical ideology spread eastwards in post-Vedic times.
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.
Samskara are sacraments in Hinduism and other Indian religions, described in ancient Sanskrit texts, as well as a concept in the karma theory of Indian philosophies. The word literally means "putting together, making perfect, getting ready, to prepare", or "a sacred or sanctifying ceremony" in ancient Sanskrit and Pali texts of India.
Kalpa means "proper, fit" and is one of the six disciplines of the Vedānga, or ancillary science connected with the Vedas – the scriptures of Hinduism. This field of study is focused on the procedures and ceremonies associated with Vedic ritual practice.
Āśrama is a system of stages of life discussed in Hindu texts of the ancient and medieval eras. The four asramas are: Brahmacharya (student), Gṛhastha (householder), Vanaprastha, and Sannyasa (renunciate).
Prāyaścitta is the Sanskrit word which means "atonement, penance, expiation". In Hinduism, it is a dharma-related term and refers to voluntarily accepting one's errors and misdeeds, confession, repentance, means of penance and expiation to undo or reduce the karmic consequences. It includes atonement for intentional and unintentional misdeeds. The ancient Hindu literature on repentance, expiation and atonement is extensive, with earliest mentions found in the Vedic literature. Illustrative means to repent for intentional and unintentional misdeeds include admitting one's misdeeds, austerities, fasting, pilgrimage and bathing in sacred waters, ascetic lifestyle, yajna, praying, yoga, giving gifts to the poor and needy, and others.
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.
Monarchy in ancient India was ruled by a King who functioned as its protector, a role which involved both secular and religious power. The meaning and significance of kingship changed dramatically between the Vedic and Later Vedic period, and underwent further development under the times of the Jain and Buddhist rulers. Although there is evidence that kingship was not always hereditary during the Vedic and into the Later Vedic period, by the time of composition of the Brāhmaṇa literature, traces of elective kingship had already begun to disappear.
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.
Classical Hindu law in practice originates from community, not a state polity. In this way, particular groups of society began to gain influence in the creation and administration of law. Primary corporate groups, Kingships, and Brahmins were the factions, which conveyed Hindu jurisprudence in practice. Corporate groups were responsible for legislating law through the conception of social norms; kingships were responsible for the administration of punishment and the worldly Hindu system; and Brahmins were responsible for ritual, penance, and the maintenance of a spiritual Hindu system.
The Vashistha Dharmasutra is one of the few surviving ancient Sanskrit Dharmasutras of Hinduism. It is reverentially named after a Rigvedic sage Vashistha who lived in the 2nd millennium BCE, but the text was probably composed by unknown authors between 300 BCE – 100 CE. It forms an independent text and other parts of the Kalpasūtra, that is Shrauta- and Grihya-sutras are missing. It is written in sutra style, and contains 1,038 sutras. According to Patrick Olivelle – a professor of Sanskrit and Indian religions, the text may be dated closer to the start of the common era, possibly the 1st century, since it uses the pronoun "I" and a style as if the text is a personal teaching guide, and because it is the oldest Indian text that mentions "the use of written evidence in judicial proceedings".
In Hinduism, Śāstra pramāṇam refers to the authority of the scriptures with regard to puruṣārtha, the objects of human pursuit, namely dharma, artha, kāma (pleasure) and mokṣa (liberation). Together with smṛti, ācāra, and ātmatuṣṭi, it provides pramana and sources of dharma, as expressed in Classical Hindu law, philosophy, rituals and customs.
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