Ancient Indian Law | Legal Studies for Class 11 - Humanities/Arts PDF Download

Introduction to Ancient Indian Law

Law in India has primarily evolved from customs and religious prescription to the current constitutional and legal system we have today, thereby traversing through secular legal systems and the common law. This chapter briefly describes the evolution of Ancient Indian Law.

Ancient Indian Law

India has a recorded legal history starting from the Vedic ages. It is believed that ancient India had some sort of legal system in place even during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by the Jains and Buddhists. Secular law in India varied widely from region to region and from ruler to ruler. 

• Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent th th secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16 – 19 centuries) which preceded the current scheme of common law in India. 
• This section begins with the idea of Hindu law and traces its origin through the ancient legal literature. The section also describes the evolution of Hindu law during the British rule as well as the modern times, to conceptualize ancient Indian law in relation with modern law. Islamic law became relevant in India only during the medieval period or the middle ages, especially with the advent of the Mughal Empire in the mid-16th century CE. 
• Since the focus of this section is on the ancient Indian law, a brief subsection has been provided that describes the introduction of the Islamic law in India. However, the next section will deal with how British courts replaced the Mughal court systems that were largely prevalent in India.

The Hindu law

The word “Hindu” used to be an ethnic label and not a religious one. First the Persians and then the Greeks used the expression “Hindu” to refer to the ethnic group of people or Indians and, in the thirteenth century, the word “Hindu” was more widely used to distinguish them from the Islamic kingdoms within India. Later on, the expression “Hinduism” was used during the British Rule in the nineteenth century to refer to the Hindu religious culture group as distinct from Christianity and Islam. 

• Ever since, “Hinduism” has largely developed as a term that embraces the varied beliefs, practices and religious traditions among the Hindus that have common historical formations including philosophical basis. Given the historical bases of the term ‘Hindu’, Hindu law has had varied understandings. 
• In the ethnic Indian context, some have understood Hindu law to include the diverse laws prevalent in India from the ancient Vedic times until 1772 when the British adopted rules for administration of justice in Bengal. Some have used it to distinguish from the Islamic legal system that existed in parts of India annexed by the Muslim Mughal Empires between thirteenth and sixteenth centuries, as well as the British legal system from 1772 onwards. 
• Others have categorized Hindu law as being applicable only to those communities that were subjected to it while others followed their own diverse customary laws. Hindu law can primarily be divided into three categories: the ‘Classical Hindu Law’, the ‘AngloHindu Law’, and the ‘Modern Hindu Law’. These three divisions also have an historic context.

The Classical Hindu Law includes the diverse legal practices connected with the Vedic traditionsin some ways and existing from the Vedic times until 1772 when the British adopted rules for administration of justice in Bengal. The Anglo-Hindu Law was evolved from the classical Hindu law during the British rule in India from 1772 to 1947. The British adopted the modern law or the English legal system and replaced the existing Indian laws except for family or personal laws in matters such as marriage, inheritance and succession of property. Family law or the personal law applicable to Hindus is the Modern Hindu Law.

Classical Hindu Law

To understand the Classical Hindu law, it will be helpful to relate it to ‘law’ as we understand it today. The basic arrangement of the present day modern law in a democratic country like India is that elected representatives in the Parliament create laws, which are enforced and put into practice by the state through its agencies, such as the executive (e.g. police or other law enforcement agencies) and the judiciary. When lawmakers create laws, they are based on a certain scheme of values of morality, politics, history, society and so on. In comparison with the 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. Although the Classical Hindu law was based on religion with the scholars of the Vedas playing a central role, in reality, it was decentralized and diverse in practice and differed between communities, based on locations, vocational groups (like merchant groups, military groups, and temple groups) and castes. The features of the Classical Hindu law are discussed in this section.

• Dharma: ‘Dharma’ in Sanskrit means righteousness, duty and law. Dharma is wider in meaning than what we understand as law today. 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.
• Sources of Hindu Law or Dharma: There are three sources of Dharma or Hindu law. The first source is the Veda or Vedas. The four primary Vedas are the Rigveda, Yajurveda, Samaveda, and Atharvaveda. They are collections of oral texts of hymns, praises, and ritual instructions. Veda literally means revelation. The second source is called Smriti, which literarily means ‘as remembered’ and it refers to tradition. They are the humanly authored written texts that contain the collected traditions. The Dharmashastra texts are religion and law textbooks and form an example of the Smriti tradition. Since only a few scholars had access to direct knowledge or learning from the Vedas, Smritis are the written texts to teach others. These texts are considered to be authoritative because they are believed to include duties and practices that must have been sourced from the Vedas and they are accepted and transmitted by humans who know the Vedas. In this way, a connection is made between the Veda and smrititexts that make the latter authoritative. The third source of dharma is called the ‘âchâra’, which means customary law. Âch ras are the norms of a particular community or group. Just like the smriti, ch ra finds its authority by virtue of its connection with the Vedas. Where both the Vedas and the Smritis are silent on an issue, a learned person who knows the Vedas can consider the norms of the community as dharma and perform it. This way, the Vedic connection is made between the Veda and the âchâra, and the âchâra becomes authoritative.
• Dharmashastra: ‘Dharmashastra’ is an example of Smriti. They are Sanskrit written texts on religious and legal duties. Dharmashastras are voluminous and there are hundreds of such texts. The two most important features of the Dharmashastras are that they provide rules for the life of an ideal householder and they contain the Hindu knowledge about religion, law, ethics and so on.

Topics covered in the Dharmashastra:

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),Grahastha (the householder), Vanaprashta (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.

1. Textual Hermeneutics: Traditional hermeneutics deals with the study of interpreting written texts in the areas of religion, law and literature. The Dharmashastra tradition uses the textual hermeneutics known as ‘Purva-Mimamsa’ to interpret its texts. Purva-Mimamsa provides in detail the knowledge of how to interpret the Vedic texts, including the Dharmashastra text.
2. Important Dharmashastra Texts: There are literally hundreds of texts that fall under the category of the Dharmashastra texts. Dharmasutra are the first four texts of the Dharmashastra. The Sanskrit meaning of Dharma-sutra is righteousness-thread or string. The written format of the Dharmasutra is the prose style. They deal with the subject matter of dharma and are like guidebooks on dharma with rules of conduct and rites. Dharmasutra discuss the rules for duties for all the ashrama: the student-hood, the householdership, 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. The most important Dharmasutra texts are the sutra of Apastamba, Gautama, Baudhayana and Vaisistha, and they come from various geographical locations in India and are composed at different times between 600 and 100 BC approximately.
   • Some of the most prominent Dharmashastra texts are Manusmriti (200BC-200CE); Yajnavalkya Smriti (200-500CE); Naradasmriti (100BC- 400CE); Visnusmriti (7001000CE); Brhaspatismriti (200-400CE); and Katyayanasmriti (300-600CE). These texts were often used for legal judgments and opinion. It is not clear if single or multiple authors wrote these texts. They differ in format and structure from the Dharmasutra and are written in the verse form.
3. Commentaries and Digests: Commentaries were written by commentators to interpret and provide meaning to the Dharmasutra texts and Smriti, and each commentary devoted itself to one particular text. For example, there are commentaries exclusively on ‘Manusmriti’ and on ‘YajnavalkyaSmriti’ and so on. The digests were not restricted to one text, but were arranged by topic or theme or subject matter and drew upon many different Dharmashastratexts or Smritito explain the topic. For example, there are digests on the topics of the role of king, inheritance of property, religious rites and rituals, adoption, litigation and judicial procedures.

Anglo-Hindu Law

Anglo-Hindu Law can be divided into two phases. The first phase is the period between 1772 and 1864. This phase starts in 1772 when the British adopted rules for administration of justice in Bengal. The second phase is the period between 1864 and 1947. After 1864, India was formally part of the British Empire, and in 1947, India became independent of the British. The important features of the Anglo-Hindu Law are discussed here.

• The First Phase (1772-1864): In the first phase between 1772 and 1864, three main developments occurred with respect to the Anglo-Hindu Law. First, the important Dharmashastra texts were compiled and translated by various British administrator-scholars including William Jones, Henry Thomas Colebrooke, J.C.C. Sutherland, and Harry Borrodaile. The rules from these texts were applied to Hindus in order to expand British rule in India. Second, the court pandits were used in the British courts to aid the British judges with the interpretation of the Dharmashastra texts and implementation of the Classical Hindu Law. Third, the court pandits became redundant due to sufficient proliferation and development of established case laws of some precedent value.
• The Second Phase (1864-1947): Departure from the Dharmashastra tradition is the most significant development of the second phase of the Anglo-Hindu Law. The system of court pandits ended due to sufficient proliferation of, and establishment of, case laws during the first phase. Since there were problems with implementing the Classical Hindu Law, the British legislated and codified various laws or acts, largely in the form of the English Legal System or the modern form of law. The British felt that that there were diverse customary legal practices among various regions and communities in India, and they were not necessarily administratively or otherwise connected with the idealized legal system of Dharmashastra. The British administrators undertook studies and compiled the diverse customary rules practiced among different communities. These customary rules were consultative resources for the courts. Accordingly, the Dharmashastra tradition lost its relevance. By and large, the idea of the English legal system was well received by the Indian nationalist movement and was adopted after India’s independence from the British.

Modern Hindu Law

The British adopted (especially during 1864 and 1947) the modern law or the English legal system and replaced the existing Indian laws, except for laws related to family or personal matters like marriage, inheritance and succession of property. Family law or the personal law applicable to Hindus is the Modern Hindu Law. The Indian Constitution of 1950 has adopted this arrangement wherein in family or personal matters, customary laws of the relevant religious groups or traditional communities apply.
During the early 1950s, some parliamentarians and groups had suggested some kind of return to the classical Hindu law with one uniform family law for all the communities. However, there was no unanimous support to this proposal and it was turned down.In 1955-56, the Parliament adopted the four major legislations governing the family and personal matters of the Hindu community: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). These codified laws are the first points of reference for the modern Hindu law.

Constraints

Although the family and personal laws are different for various religious and traditional communities, the courts that adjudicate these matters are common, i.e. the state run family courts. The judges presiding over the matters are common for all the communities and they may not belong to those specific communities whose matters are presented. Also, the state judges have no formal religious legal training about various communities they adjudicate.

Islamic Law

The first Muslim settlers arrived in India in the early 7^th century AD. Then, the Arab merchants came to the Malabar coast in South India. And in the 12^th century AD, the Turkish invasion also brought Islam to India. Later, with the advent of the Mughal Empire in the mid-16th century AD, the Mughal judicial and administrative systems were introduced in India. The Mughal court systems were later replaced by the English legal system starting from 1772, when the British adopted rules for administration of justice in Bengal; the next section deals with the Mughal courts systems and the British justice system in India. Also, the last section on the Family Justice System covers the Islamic law in India in civil law matters of marriage, inheritance and other personal law issues.