Law and Religion
Religion is the very basis of human life which is not just following a belief but it is also a the way of living because the followers of a particular religion follows a definite kind of livelihood and with this moral duty of following certain rules the religion enters the boundary of law whereby a person is compelled to follow or not to break the rules decided by a state (i.e. any country). Hence it is very evident that the law and religion are dependent on each other because before the concept of state or democracy, people were bound to follow the religious duties and can claim religious rights. Thus in this way religion was playing a very vital role of maintaining law and order in ancient societies at different parts of the world.
In this seminar paper I am going to deal with the legal history of world i.e. how the law evolved apart from religion in different parts of the world, how the evolution of law differs at different regions, like Islamic Law, Roman Law, Christian Law and after that I am going to concentrate on evolution and development of Hindu Law in India. I am going to discuss how the Hindu Law as a way of living affected the evolution of law and how it lead to the formation of personal laws for every religion in India and who are the people in society governed by Hindu Law.
Along with it I will be discussing what are the sources of Hindu Law and how the Hindu Law is still relevant in the modern world by getting support from modern sources of present world.
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. Among certain jurists and historians of legal process it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts, some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualized manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyze case histories from the parameters of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.
Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality. By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first law code, consisting of casuistic statements ("if... then..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as Stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these Stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German and French. The Torah from the Old Testament is probably the oldest body of law still relevant for modern legal systems, dating back to 1280 BC. It takes the form of moral imperatives, like the Ten Commandments and the Noahide Laws, as recommendations for a good society. Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Athens had no legal science, and Ancient Greek has no word for "law" as an abstract concept. Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from the 400 BC, and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across South East Asia. ut this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the common law.
The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late nineteenth century. Similarly, traditional Chinese law gave way to westernization towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Today, however, because of rapid industrialization China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
One of the major legal systems developed during the Middle Ages was Islamic law and jurisprudence, now the third most common legal system after the civil law and common law systems. The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later common law system. According to Justice Gamal Moursi Badr, Islamic law is like common law in that it "is not a written law" based entirely on the Qur'an but that the "provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists" (Ulema), hence Islamic law may "be called a lawyer's law if common law is a judge's law." This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily.
A number of important legal institutions were developed by Islamic jurists during the classical period of Islamic law and jurisprudence, known as the Islamic Golden Age, dated from the 7th to 13th centuries. One such institution was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the Aval in French civil law and the Avallo in Italian law. The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.
Several fundamental common law institutions may have been adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily, and also by Crusaders during the Crusades. In particular, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif" in Maliki law. The English trust and agency institutions in common law were also most likely adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades.
Other English legal institutions such as "the scholastic method, the license to teach", the "law schools known as Inns of Court in England and Madrasas in Islam" and the "European commenda" (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".
Roman law was heavily influenced by Greek teachings. It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire. Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class. Instead a lay person, iudex, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis. As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before.”
Roman law was lost through the Dark Ages, but in the eleventh century AD scholars in the University of Bologna rediscovered the texts and were the first to use them to interpret their own laws. Medieval European legal scholars began researching the Roman law and they began using its concepts and prepared the way for the partial resurrection of Roman law as the modern civil law in a large part of the world. After the Norman conquest of England which introduced Norman and Islamic legal concepts into medieval England, the English King's powerful judges developed a body of precedent which became the common law. In particular, Henry II instituted legal reforms and developed royal, professional courts administered by a small number of judges who lived in Westminster and traveled throughout the kingdom. Henry the II also instituted the Assize of Clarendon in 1166, which allowed for jury trials and reduced the number of trials by combat. In France, judges were based in the area they resided in, and jurors were nominated by parties to the legal dispute rather than by the sheriff. But also, a Europe wide lex mercatoria was formed, so that merchants could trade using familiar standards, rather than the many splintered types of local law. A precursor to modern commercial law, the lex mercatoria emphasised the freedom of contract and alienability of property.
Modern European law
The two main traditions of modern European law are the codified legal systems of most of continental Europe, and the English tradition based on case law.
As nationalism grew in the 18th and 19th centuries, lex mercatoria was incorporated into countries' local law under new civil codes. Of these, the French Napoleonic Code and the German Burgerliches Gesetzbuch became the most influential. As opposed to English common law, which consists of massive tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.
The United States legal system developed primarily out of the English common law system (with the exception of the state of Louisiana, which continued to follow the French civilian system after being admitted to statehood). Some concepts which originate in Spanish law, such as the prior appropriation doctrine and community property, still persist in some U.S. states, particularly those which were part of the Mexican Cession in 1848.
Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government.
Religion in India
India is a country of religious diversity and religious tolerance is established in both law and custom. Throughout the history of India, religion has been an important part of the country's culture. A vast majority of Indians associate themselves with a religion.
Indian census has established that Hinduism accounts for 80.5% of the population of India. The second largest religion is Islam, at about 13.4% of the population. The third largest religion is Christianity at 2.3%. The fourth largest religion is Sikhism at about 1.9% of India's population. This diversity of religious belief systems exiting in India today is a result of, besides the existence and birth of native religions, assimilation and social integration of religions brought to the region by traders, travelers, immigrants, and even invaders and conquerors. Stating the hospitality of Hinduism towards all other religions, John Hardon writes, "However, the most significant feature of current Hinduism is its creation of a non-Hindu State, in which all religions are equal."
Other native Indian religions are Buddhism and Jainism. Ancient India had two philosophical streams of thought, the Shramana religions and the Vedic religion, parallel traditions that have existed side by side for thousands of years. Both Buddhism and Jainism are continuations of Shramana traditions, while modern Hinduism is a continuation of the Vedic tradition. These co-existing traditions have been mutually influential. Zoroastrianism and Judaism also have an ancient history in India and each has several thousand Indian adherents.
India's religious tolerance extends to the highest levels of government. The Constitution of India declares the nation to be a secular republic that it must uphold the right of citizens to freely worship and propagate any religion or faith (with activities subject to reasonable restrictions for the sake of morality, law and order, etc). The Constitution of India also declares the right to freedom of religion as a fundamental right.
Citizens of India are generally tolerant of each other's religions and retain a secular outlook, although inter-religious marriage is not widely practiced. Inter-community clashes have found little support in the social mainstream, and it is generally perceived that the causes of religious conflicts are political rather than ideological in nature.
History of Law in India
Existence and development of Vedic Religions
Hinduism is often regarded as the oldest religion in the world, with roots tracing back to prehistoric times, or 5000 years. Evidence attesting to prehistoric religion in the Indian subcontinent derives from scattered Mesolithic rock paintings depicting dances and rituals. Neolithic pastoralists inhabiting the Indus River Valley buried their dead in a manner suggestive of spiritual practices that incorporated notions of an afterlife and belief in magic. Other South Asian Stone Age sites, such as the Bhimbetka rock shelters in central Madhya Pradesh and the Kupgal petroglyphs of eastern Karnataka, contain rock art portraying religious rites and evidence of possible ritualised music.
The Harappan people of the Indus Valley Civilization, which lasted from 3300–1700 BCE and was centered around the Indus and Ghaggar-Hakra river valleys, may have worshiped an important mother goddess symbolising fertility. Excavations of Indus Valley Civilization sites show seals with animals and "fire‑altars", indicating rituals associated with fire. A linga-yoni of a type similar to that which is now worshiped by Hindus has also been found.
Hinduism's origins include cultural elements of the Indus Valley Civilization, the Vedic religion of the Indo-Aryans, and other Indian civilizations. The oldest surviving text of Hinduism is the Rigveda, produced during the Vedic period and dated to 1700–1100 BCE. During the Epic and Puranic periods, the earliest versions of the epic poems Ramayana and Mahabharata were written roughly from 500–100 BCE, although these were orally transmitted for centuries prior to this period.
After 200 CE, several schools of thought were formally codified in Indian philosophy, including Samkhya, Yoga, Nyaya, Vaisheshika, Purva-Mimamsa and Vedanta. Hinduism, otherwise a highly theistic religion, hosted atheistic schools; the thoroughly materialistic and anti-religious philosophical Cārvāka school that originated in India around the 6th century BCE is probably the most explicitly atheistic school of Indian philosophy. Cārvāka is classified as a nastika ("heterodox") system; it is not included among the six schools of Hinduism generally regarded as orthodox. It is noteworthy as evidence of a materialistic movement within Hinduism. Our understanding of Cārvāka philosophy is fragmentary, based largely on criticism of the ideas by other schools, and it is no longer a living tradition. Other Indian philosophies generally regarded as atheistic include Classical Samkhya and Purva Mimamsa.
Birth of Shramana Religions (Jainism and Buddhism)
Mahavira the 24th Jain Tirthankara (599–527 BC, though possibly 549–477 BC), stressed five vows, including ahimsa (non-violence) and asteya (non-stealing). Gautama Buddha, who founded Buddhism, was born to the Shakya clan just before Magadha (which lasted from 546–324 BCE) rose to power. His family was native to the plains of Lumbini, in what is now southern Nepal. Indian Buddhism peaked during the reign of Asoka the Great of the Mauryan Empire, who patronized Buddhism following his conversion and unified the Indian subcontinent in the 3rd century BCE. He sent missionaries abroad, allowing Buddhism to spread across Asia. Indian Buddhism declined following the loss of royal patronage offered by the Kushan Empire and such kingdoms as Magadha and Kosala. Some scholars think between 400 BCE and 1000 CE, Hinduism expanded as the decline of Buddhism in India continued. Buddhism subsequently became effectively extinct in India.
Advent of Islam
Though Islam came to India in the early 7th century with the advent of Arab traders, it started to become a major religion during the Muslim conquest in the Indian subcontinent. Islam's spread in India mostly took place under the Delhi Sultanate (1206–1526) and the Mughal Empire, greatly aided by the mystic Sufi tradition.
Bhakti Movement and the birth of Sikhism
During the 14-17th centuries, when North India was under Muslim rule, The bhakti movement swept through Central and Northern India, initiated by a loosely associated group of teachers or sants. Chaitanya Mahaprabhu, Vallabha, Surdas, Meera Bai, Kabir, Tulsidas, Ravidas, Namdeo, Tukaram and other mystics spearheaded the Bhakti movement in the North. They taught that people could cast aside the heavy burdens of ritual and caste, and the subtle complexities of philosophy, and simply express their overwhelming love for God. This period was also characterized by a spate of devotional literature in vernacular prose and poetry in the ethnic languages of the various Indian states or provinces. Bhakti movement spawned into several different movements all across North and South India. In North India, Bhakti movement is however not differentiable from the Sufi movement of Shia Muslims of the Chisti fame. People of Muslim faith adopted it as a Sufism while Hindus as Vaisanava Bhakti.
Guru Nanak (1469–1539) was the founder of Sikhism in India, the religion that draws its elements from both Hinduism & Islam. The religion came about to reconcile the differences between the existing religious beliefs and to alleviate the society of the ills of the existing religious superstitions and practices. It should be noted that, although Sufi and Bhakti saints are revered and recognized by Guru Granth Sahib but they do not form the main basis of Sikhism.
Introduction of Christianity
Although historical evidence suggests the presence of Christianity in India since the first century, it became popular following European colonisation and Protestant missionary efforts.
Communalism has played a key role in shaping the religious history of modern India. As an adverse result of the British Raj's divide and rule policy, British India was partitioned along religious lines into two states—the Muslim-majority Dominion of Pakistan (comprising what is now the Islamic Republic of Pakistan and the People's Republic of Bangladesh) and the Hindu-majority Union of India (later the Republic of India). The 1947 Partition of India instigated rioting among Hindus, Muslims, and Sikhs in Punjab, Bengal, Delhi, and other parts of India; 500,000 died as a result of the violence. The twelve million refugees that moved between the newly founded nations of India and Pakistan composed one of the largest mass migrations in modern history. Since its independence, India has periodically witnessed large-scale violence sparked by underlying tensions between sections of its majority Hindu and minority Muslim communities. The Republic of India is secular, its government recognises no official religion. In recent decades, communal tensions and religion-based politics have become more prominent.
The preamble to the Constitution of India proclaimed India a "sovereign socialist secular democratic republic". The word secular was inserted into the Preamble by the Forty-second Amendment Act of 1976. It mandates equal treatment and tolerance of all religions. India does not have an official state religion; it enshrines the right to practice, preach, and propagate any religion. No religious instruction is imparted in government-supported schools. In S. R. Bommai vs. Union of India, the Supreme Court of India held that secularism was an integral tenet of the Constitution.
The right to freedom of religion is a fundamental right according to the Indian Constitution. The Constitution also suggests a uniform civil code for its citizens as a Directive Principle. However this has not been implemented until now as Directive Principles are Constitutionally unenforceable. The Supreme Court has further held that the enactment of a uniform civil code all at once may be counterproductive to the unity of the nation, and only a gradual progressive change should be brought about in Pannalal Bansilal v State of Andhra Pradesh, 1996. In Maharishi Avadesh v Union of India (1994) the Supreme Court dismissed a petition seeking a writ of mandamus against the government to introduce a common civil code, and thus laid the responsibility of its introduction on the legislature.
Major religious communities continue to be governed by their own personal laws. Personal laws exist for Hindus, Muslims, Christians, Zoroastrians, and Jews. The only Indian religion exclusively covered under the secular ("civil") law of India is Brahmoism starting from Act III of 1872. For legal purposes, Buddhists, Jains and Sikhs are classified as Hindus and are subject to Hindu personal law.
Aspects of Religion
Religion plays a major role in the Indian way of life. Rituals, worship, and other religious activities are very prominent in an individual's daily life; it is also a principal organiser of social life. The degree of religiosity varies among individuals; in recent decades, religious orthodoxy and observances have become less common in Indian society, particularly among young urban-dwellers.
The vast majority of Indians engage in religious rituals on a daily basis. Most Hindus observe religious rituals at home. However, observation of rituals greatly vary among regions, villages, and individuals. Devout Hindus perform daily chores such as worshiping at the dawn after bathing (usually at a family shrine, and typically includes lighting a lamp and offering foodstuffs before the images of deities), recitation from religious scripts, singing hymns in praise of gods etc. A notable feature in religious ritual is the division between purity and pollution. Religious acts presuppose some degree of impurity or defilement for the practitioner, which must be overcome or neutralised before or during ritual procedures. Purification, usually with water, is thus a typical feature of most religious action. Other characteristics include a belief in the efficacy of sacrifice and concept of merit, gained through the performance of charity or good works, that will accumulate over time and reduce sufferings in the next world. Devout Muslims offer five daily prayers at specific times of the day, indicated by adhan (call to prayer) from the local mosques. Before offering prayers, they must ritually clean themselves by performing wudu, which involves washing parts of the body that are generally exposed to dirt or dust. A recent study by the Sachar Committee found that 3-4% of Muslim children study in madrasas (Islamic schools).
Dietary habits are significantly influenced by religion. Almost one-third of Indians practise vegetarianism; it came to prominence during the rule of Ashoka, a promoter of Buddhism. Vegetarianism is much less common among Muslim and Christians. Jainism requires monks and laity, from all its sects and traditions, to be vegetarian. Hinduism bars beef consumption, while Islam bars pork.
Occasions like birth, marriage, and death involve what are often elaborate sets of religious customs. In Hinduism, major life-cycle rituals include annaprashan (a baby's first intake of solid food), upanayanam ("sacred thread ceremony" undergone by upper-caste youths), and shraadh (paying homage to a deceased individual). For most people in India, the betrothal of the young couple and the exact date and time of the wedding are matters decided by the parents in consultation with astrologers.
Muslims practice a series of life-cycle rituals that differ from those of Hindus, Jains, and Buddhists. Several rituals mark the first days of life—including whispering call to prayer, first bath, and shaving of the head. Religious instruction begins early. Male circumcision usually takes place after birth; in some families, it may be delayed until after the onset of puberty. Marriage requires a payment by the husband to the wife and the solemnisation of a marital contract in a social gathering. On the third day after burial of the dead, friends and relatives gather to console the bereaved, read and recite the Quran, and pray for the soul of the deceased. Indian Islam is distinguished by the emphasis it places on shrines commemorating great Sufi saints.
Religion and politics
Religious ideology, particularly that expressed by the Hindutva movement, has strongly influenced Indian politics in the last quarter of the 20th century. Many of the elements underlying India's casteism and communalism originated during the rule of the British Raj, particularly after the late 19th century; the authorities and others often politicised religion. The Indian Councils Act of 1909 (widely known as the Morley-Minto Reforms Act), which established separate Hindu and Muslim electorates for the Imperial Legislature and provincial councils, was particularly divisive. It was blamed for increasing tensions between the two communities. Due to the high degree of oppression faced by the lower castes, the Constitution of India included provisions for affirmative action for certain sections of Indian society. Growing disenchantment with the Hindu caste system has led thousands of Dalits (also referred to as "Untouchables") to embrace Buddhism and Christianity in recent decades. In response, many states ruled by the Bharatiya Janata Party (BJP) introduced laws that made them more difficult; they assert that such conversions are often forced or allured. The BJP, a Hindu nationalist party, also gained widespread media attention after its leaders associated themselves with the Ram Janmabhoomi movement and other prominent religious issues.
A well known accusation that Indian political parties make for their rivals is that they play vote bank politics, meaning give political support to issues for the sole purpose of gaining the votes of members of a particular community. Both the Congress Party and the BJP have been accused of exploiting the people by indulging in vote bank politics. The Shah Bano case, a divorce lawsuit, generated much controversy when the Congress was accused of appeasing the Muslim orthodoxy by bringing in a parliamentary amendment to negate the Supreme Court's decision. After the 2002 Gujarat violence, there were allegations of political parties indulging in vote bank politics. During an election campaign in Uttar Pradesh, the BJP released an inflammatory CD targeting Muslims. This was condemned by the Communist Party of India (Marxist) as playing the worst kind of vote bank politics. Caste-based politics is also important in India; caste-based discrimination and the reservation system continue to be major issues that are hotly debated.
Several political parties have been accused of using their political power to manipulate educational content in a revisionist manner. During the Janata Party government (1977–1979), the government was accused of being too sympathetic to the Muslim viewpoint. In 2002, the BJP-led NDA government tried to change the National Council of Educational Research and Training (NCERT) school textbooks through a new National Curriculum Framework. Some media referred to it as the "saffronisation" of textbooks, saffron being the colour of BJP flag.
The next government, formed by the UPA and led by the Congress Party, pledged to de-saffronise textbooks. Hindu groups alleged that the UPA promoted Marxist and pro-Muslim biases in school curriculum.
Law of India
Law of India refers to the system of law which presently operates in India. It is largely based on English common law because of the long period of British colonial influence during the period of the British Raj. Much of contemporary Indian law shows substantial European and American influence. Various legislations first introduced by the British are still in effect in their modified forms today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to get a refined set of Indian laws, as it currently stands. Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.
Indian family law is complex, with each religion having its own specific laws which they adhere to. In most states, registering of marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.
History of Indian law
Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world shows that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic laws were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.
Constitutional and administrative law
The Constitution of India, which came into effect from January 26, 1950, is the lengthiest written constitution in the world. Although its administrative provisions are to a large extent based on the Government of India Act, 1935, it also contains various other provisions that were drawn from other constitutions in the world at the time of its creation. It provides details of the administration of both the Union and the States, and codifies the relations between the Federal Government and the State Governments. Also incorporated into the text are chapters on the fundamental rights of citizens, as well as a chapter on directive principles of state policy.
The constitution prescribes a federal structure of government, with a clearly defined separation of legislative and executive powers between the Federation and the States. Each State Government has the freedom to draft it own laws on subjects which are classified as state subjects. Laws passed by the Parliament of India and other pre-existing central laws on subjects which are classified as central subjects are binding on all citizens the country. However, the constitution also has certain unitary features such as the power of amendment being vested solely in the Federal Government, the absence of dual citizenship, and the overriding authority assumed by the Federal Government in times of emergency.
Family laws in India are different for different religions and there is no uniform civil code. This system of distinct laws for each religion began during the British Raj when Warren Hastings in 1772 created provisions prescribing Hindu law for Hindus and Islamic law for Muslims, for litigation relating to personal matters. However, after independence, efforts have been made to modernize various aspects of personal law and bring about uniformity among various religions. Areas in which reform has occurred recently are custody and guardianship laws, adoption laws, succession law and laws relating to domestic violence and child marriage.
Indian Muslims' personal laws are based on the Sharia, which is partially applied in India. The portion of the fiqh applicable to Indian Muslims as personal law is termed Mohammedan law. Despite being largely uncodified, Mohammedan law has the same legal status as other codified statutes. The development of the law is largely on the basis of judicial precedent, which in recent times has been subject to review by the courts. The contribution of Justice V.R. Krishna Iyer in the matter of interpretation of the statutory as well as personal law is significant.
As for Christians, there is a distinct branch of law known as Christian Law which is mostly based on specific statutes. Christian law of Succession and Divorce in India have undergone changes in recent years. The Indian Divorce (Amendment) Act of 2001 has brought in considerable changes in the grounds available for divorce. By now Christian law in India has emerged as a separate branch of law.It covers the entire spectrum of family law so far as it concerns Christians in India. Christian law, to a great extent is based on English law but there are laws that originated on the strength of customary practices and precedents.
Christian family law has now distinct sub branches like laws on marriage, divorce,restitution, judicial separation, succession, adoption, guardianship,maintenance, custody of minor children and relevance of canon law and all that regulates familial relationship.
As far as Hindus are concerned there is a specific branch of law known as Hindu Law. Though the attempt made by the first parliament after independence did not succeed in bringing forth a Hindu Code comprising the entire field of Hindu family law, laws could be enacted touching upon all the major areas affecting family life among Hindus in India. Even Jains are covered for most part by Hindu law.
Indian Hindu Law
Historically the term 'Hindu' is of foreign origin. It was used to designate people who were living east of the Hindi river, now known as the Indus. Etymologically, the term 'Hindu' was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu has been associated with religion.Thus logically, the term 'Hindu' is used to signify persons who are Hindus by birth and by faith and this is the basis for the applicability of Hindu Law.
Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the institution of marriage and its development the capacity and nuptial rights and the effect of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage and divorce with reference to the changes brought about my modern legislation.
Persons Governed by Hindu Law
The following persons are governed by Hindu Law:
1. A HINDU BY BIRTH: If the parents are both Hindus, their children whether legitimate or illegitimate become Hindus automatically.
2. A HINDU BY FAITH OR CONVERSION OF HINDUISM: Previously, it was a contention that "a Hindu is horn and nor made". But now even a person converted to Hinduism is treated as a Hindu.
3. ILLEGITIMATE CHILDREN: Illegitimate children born to Hindu parents or both the parents.
4. ILLEGITIMATE CHILDREN: Illegitimate children born to Christian father and Hindu mother, and brought up as a Hindu.
5. JAIN SIKH, BUDHIST LINGAYAT, BRAHMOS, ARYA SAMAJ: Jain, Sikh, Budhist, Lingayat, Brahmos, Arya Samajist and Santhals of Chota Nagpuri, If not varied by custom.
6. A person who is Hindu by birth, and who has renounced Hinduism and reverted back to Hinduism either by religious rites or recognition from community.
7. The sons of Hindu dancing girls of the Naik caste who are converted to Mohammedanism, but whose sons are brought up by the Hindu grandparents as Hindus.
8. To Hindu who have made a declaration that they were not Hindus for the purpose of Special Marriage Act 1872.
Persons not Governed by Hindu Law
1. Illegitimate children born to Hindu father and Christian mother and brought up as Christians.
2. Illegitimate children born to a Hindu father and a Muslim mother.
3. Hindu converted to Islam religion
4. Hindu converted to Christianity.
5. A Hindu marrying under Special Marriage Act, for the purpose of inheritance, governed by Indian Succession Act And Not Hindu Succession Act.
Effect of Conversion as Per Indian Hindu Law
Applicability of Hindu Law
1. Christianity: Earlier to Indian Succession Act 1925, a Hindu converted to Christianity could opt for Hindu faith.
After passing the Indian Succession Act, the Hindu converted to Christianity is governed by t the Indian Succession Act.
2. Mohammedanism: A Hindu covert to Mohammedanism has no option to retain Hindu personal law and he is governed by Muslim personal law.
3. Hinduism: Any covert to Hinduism from other religion does not have any caste, but if he professes Hindu faith, it is sufficient for the application of Hindu Law.
Effect of Conversion on Inheritance Rights
Previously a convert from one religion to another could not inherit the property of his original religion. But the Caste Disabilities Removal Act 1850 abolished the said forfeiture of rights to inheritance by a convert.
Effect of Conversion on Marital Rights
Under the Hindu Marriage Act 1956 if any of the spouses converts himself to another religion the other party is entitled for a divorce.
Effect of Conversion on Right to Maintenance
The spouse who gets converted from Hinduism to another religion cannot claim maintenance. However if a Hindu himself renounces Hinduism the Hindu wife can claim separate residential maintenance from him.
Effect of Conversion on Right of Guardianship
When a guardian changes his religion, he cannot act as a guardian for the minor.
History of Dharmasutras
The Dharmasutras dealt with duties of men in their various relations and in course of time they began to be accepted by members of all the groups. They are the sources which were divided into purva and apara sutras. The sutras bear the names of their authors or the names of the school which they belonged to.
The most ancient recorded aphorisms of Dharmasutras are Gautama, Baudhayana, Agasthamba, Harita and Vasishta. They are compositions of human beings based on the vedic preachings on the decisions of those who are acquainted with law and custom of various Aryans. Though the Dharmasutras were composed in different parts of the country at different times, they did not have any controversy but merged with each other. The Dharmasutras mixed religious and moral principles to make it a secular law.
The Dharmasutras are divided into six as:
1. Gautama: Is the oldest law which made customs as authoritative laws and the King was required to preserve these customs. It dealt with inheritance, partitions and stridhana, money lending, etc. According to Gautama, traditions, practices, usages and custom were the basis of law.
2. Harita: Harita was used even in the first period of era of the Dharmasutras. According to harita, a former judgement called pragnyaya is binding on the parties of same nature of subsequent dispute and subsequent dispute between the same parties cannot subsist. In modern law, this is called Res judicata.
3. Apastamba: It deals mainly with laws of marriage, inheritance and criminal law. The law was considered to be clear and forceful in its language and principles embodied in customs.
4. Vasishta: It deals with the sources of law, jurisdiction of law, marriage, adoption and inheritance. According to this, usage is a supplement to law.
5. Boudhyana: This is older than Apastamaba. It elaborately deal with adoption, marriage and inheritance and endorses the validity of south indian custom of a man marrying his sister's daughter. It also dealt with sea law and its customs and also the right of the king to impose excise duty on traders.
6. Vishnu: It was borrowed from Manu smriti and it deals with criminal and civil laws, including inheritance, marriage, creditors and debtors (debt laws)
From the above said Dharmasutras, it is evident that the duties of the King included administration of justice as per institutions of Dharmasutras, which were considered as sacred laws. Custom was important basis for the laws. These were classical illustrations of prevalence of jurisprudence in ancient days.
Schools of Hindu Law
Due to the emergence of various commentaries on Smriti and Shruti, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country. Because of these differences two main schools emerged as Mitakshara School & Dayabhaga School
The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.
Mitakshara school is based on the code of yagnavalkya commented by vigneshwara. Inheritance is based on the principle or propinquity i.e. The nearest in blood relationship will get the property.
The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.
The system of devolution of property is by survivorship. The share of co-parcener in the joint family property isnot definite or ascertainable, as their shares are fluctuating with births and deaths of the co-parceners. The co-parcener has no absolute right to transfer his share in the joint family property, as his share is not definite or ascertainable.
A women could never become a co-parcener.
The widow of a deceased co-parcener cannot enforce partition of her husband's share against his brothers.
There are four Sub-Schools under the Mitakshara School:
i. Dravida School : (Madras School): It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. ('Sapindas' - blood relation)
Collector of Madura vs. Mootoo Ramalinga Sethupathy
The zaminder of Ramnad died without sons and in such a condition, the zamindari would have escheated to the Government, the widow Rani Parvatha vardhani made an adoption of a son, with the consent of the sapindas of her husband. But on the death of the widow, the Collector of Madhura notified that the Zamindari would escheat to the State. The adopted son brought a suit for declaration of the validity of the adoption. It was a question whether a widow can make a valid adoption without her husband's consent but his sapinda's consent.
The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that Hindu law should be administered from clear proof of usage which will outweigh the written text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded that in the Dravida School, in the absense of authority from the husband, a widow may adopt a son with the assent of his kindred.
ii. Maharashtra School: (Bombay School): It exists in Bombay (Mumbai) , From the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.
iii. Banaras School: It exists in Orissa and Bihar. This is a modified Mitakshara School.
iv. Mithila School: It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there are four more schools which are now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.
It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects. Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings. The right to Hindu joint family property is not by birth but only on the death of the father. The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares after the death of the father. Each brother has ownership over a definite fraction of the joint family property and so can transfer his share. The widow has a right to succeed to husband's share and enforce partition if there are no male descendants. On the death of the husband the widow becomes a co-parcener with other brothers of the husband. She can enforce partition of her share.
Sources of Hindu Law
Hindu Law is mainly a law governing the Hindus. It is based on immemorial custom, and secular law which was called Dharma.
Ancient sources are Sruti, Smrits, Commentaries and digests, Sadachara or Custom and Doctrine of factum valet.
Shruti: The Srutis are regarded as of divine origin from Vedas. Sruti literally means "What was heard" by the sages in a revelation by God which include the four vedas (by sage Vyas) namely Rig, Yajur, Sama and Atharvana Vedas, the six vedangas and the Upanishads. The period of Vedas is estimated to be 4000-1000 B.C. The Vedas are revelations of the Almighty. These vedas contained practically no law; they dealt with different forms of marriage, adoption, partition and the exclusion of women from inheritance.
Smritis: It means "What was remembered". These are what were recorded by the sages in their own words of what they had heard from God. The smritis are classified as Primary Smirities and Dharmastras which constitute important sources of law. Among the Smritis, the Naradha Smritis and the Manu Smriti are very important. All these Smritis deal with the civil and criminal law, the laws of marriage and the rules of procedural law.
Next to the Vedas, Smritis are the most important source of Hindu law. The early smritis were termed as dharma sutras which were mostly in prose form. The later smritis were termed as dharma shastras, which are more systematic expostions than dharma sutras. The oldest smriti is the manu smriti. The manu smriti deals with 18 titles relating to civil and criminal law, marriage, and procedural law. The Yagnavalkya smriti (containing1010 slokas) provides that king was subordinate of Law. The other smrities are the Narada smriti and Brihaspati smriti which deal with legal subjects. Narada smriti recognised the power of the kings to make laws.
Commentaries and Digests: Since the Smritis did not agree with each other, they gave rise to commentaries which are otherwise called 'Nibandhas'. They were writen during the period between 700 A.D. to 1700 A.D. The Yagnavalkia smriti is commented upon by Vigneswara which has later become the 'Mitakshara School of Hindu Law'. The same Smriti was also commented by Jimutuvahana which later became the 'Dayabhaga School of Hindu law'.
Sadacharas (Customs): Custom is a rule of action uniformly and continuously followed by the bulk of the people for a long time. Custom is recognised as an important source of all civil laws. According to 'Manu', the King must inquire into the particular laws of custom of traders.
1. Conventional Custom: This custom arose out of contract, Parties to contract generally used certain terms for their contract to be observed in their transactions. The Sale of Goods Act., Partnership, Agency, etc., are based on the conventional customs.
2. Personal Custom: It relates to only a few individuals and it does not involve the people in general. For e.g., Easementary right is out of a personal custom.
3. Local Custom: It is observed in a particular locality alone. For e.g., in a particular locality, there may be a custom to conduct marriage after performing certain ceremonies, which may not be present in any other locality.
4. General Custom: It is observed throughout the State. It is part of the common law of the land.
Essentials for a Valid Custom
1. Reasonableness: The custom must be reasonable. It should not affect the society in any way. It should satisfy the principles of Natural justice. If a custom is unreasonable, then it is not valid and will not become a law For e.g. if a custom recognizes that a woman can marry more than one man, it is unreasonable and will not become a law.
2. Conformity: The custom should be in conformity with the established law of the land. If a custom is inconsistent with the law of the land, then it is invalid. For e.g. slavery is an offence under the Indian Penal Code, if a custom recognises slavery, then such custom is invalid.
3. Opinion: The public must feel that the particular custom is beneficial for them. They must think that such a custom is a binding rule of the community and it should not be of individual choice.
4. Observance: A mere practice of custom will not become law. It must be observed freely and voluntarily.
5. Immemorial Antiquity: The origin of the Custom should be from time immemorial. the origin should not be traced. No living man must remember its origin. Recent customs or modern customs are not valid customs. Fashion is not custom. In England, a custom must have existed continuously from 1189 A.D. to be considered valid.
6. Continuity: The custom should be followed without interruption. It must be followed continuously.
7. Peacefulness: The custom must have been observed peacefully. In other words, it should not be protested in any way by the public or part of the public.
8. Certainty: The custom must be certain and definite. It should not be vague. If a custom is indefinite, then it is invalid.
9. Consistency with Other Customs: The custom should not be opposed to other customs. Suppose two different customs exist which are inconsistent to each other, then both the customs are invalid.
Modern Sources of Hindu Law
1. Judicial Decisions: All important points of Hindu Law are now a days clarified by decisions of Law. (Supreme Court and High Courts) They are binding in nature and are published in Law reports and thus form an additional source of Hindu Law.
For e.g. Hanooman Prasad vs. Mrs. Babbooee, the Privy Council held "any alienation of co parcenary property by the Kartha of the Hindu Joint Family for legal necessity of the family or for the benefit of the estate is valid".
Collector of Madurai vs. Mootoo Ramalingam, the Privy Council held "a clear proof of usage will outweigh the written text of Law". The decisions of the High Courts and Supreme Court are considered as precedents and applicable in subsequent cases.
2. Principles of Justice, Equity of Good Conscience: These are rules deduced from general principles of Hindu Law, altered to suit the conditions of modern society. When the law is silent, the Courts in India followed justice, equity and good conscience in deciding many new points of Hindu Law. Thus the principles of justice, equity and good conscience were existent even during ancient days.
3. Legislation: This is the latest and vital source of modern Hindu Law. These legislations have not only brought in profound changes in the ancient Hindu Law but also have made the Law certain and definite.
After this discussion we can observe that the birth of Hindu law is one of the oldest laws in history of the law in the world. The Hindu law has been evolved as the way of life and with the advent of Vedic Shastras and Manu’s Scripts the Hindu law has been played a very vital role in formulation of modern laws. It not only governs the Hindus but also governs major part of Jain, Buddhist and Sikhs. The Hindu law also lead to the formulation of personal laws for different Religious groups in India and this resulted in Islamic and Christian laws in india.
Hindu law had derive the rules from various ancient sources like Customs, Dharmashastras, Shrutis and Commentaries but the relevance and importance of Hindu Law is evident from the fact that it is now deriving power from the modern sources of law like Legislation, Judicial Decisions and Common Law. This shows the importance of Hindu Law not only in India but also in the world as it governs more than 85 Crore Hindus spread all over the world.
At the end of the discussion we can conclude that the law and religion are integral part of each other and the religion is very basis of formulation of law anywhere in the world from ancient to modern world. It is just not proved by Hindu laws but also evident from several other personal laws.
· The Constitution of India
· Basu, Durga Das (2007). Commentary on the Constitution of India (8th ed.). Nagpur: Wadhwa & Co.
· Fyzee, Asaf A.A. (2008). Outlines of Muhammadan Law (5th ed.). Delhi: Oxford University Press.
· Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press.
· Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.). Nagpur: Wadhwa & Co.
· Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press.
· Gordley, James R.; von Mehren, Arthur Taylor (2006). An Introduction to the Comparative Study of Private Law.
· Sealy, L.S.; Hooley, R.J.A. (2003). Commercial Law. LexisNexis Butterworths.
· Stein, Peter (1999). Roman Law in European History. Cambridge University Press.
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 "History of Religions in India" available at http://www.indohistory.com/religions.html.
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 Dr. Usha Ramachandran. "Tort Law in India", Universal Law Publishing House, Allahabad, Page no. 203.