Hindu law

In Hinduism, law is discussed as a subset of dharma which signifies behaviors that are considered in accord with rta, the order that makes life and the universe possible,[17][note 1] and includes duties, rights, laws, conduct, virtues and ‘'right way of living'’.[8][18] The concept of Dharma includes Hindu law.[9]

In ancient texts of Hinduism, the concept of dharma incorporates the principles of law, order, harmony, and truth. It is explained as the necessary law of life and equated to satya (Sanskrit: सत्यं, truth),[19][20] in hymn 1.4.14 of Brhadaranyaka Upanishad, as follows:

धर्मः तस्माद्धर्मात् परं नास्त्य् अथो अबलीयान् बलीयाँसमाशँसते धर्मेण यथा राज्ञैवम् ।
यो वै स धर्मः सत्यं वै तत् तस्मात्सत्यं वदन्तमाहुर् धर्मं वदतीति धर्मं वा वदन्तँ सत्यं वदतीत्य् एतद्ध्येवैतदुभयं भवति ।।

Nothing is higher than Dharma. The weak overcomes the stronger by Dharma, as over a king. Truly that Dharma is the Truth (Satya); Therefore, when a man speaks the Truth, they say, "He speaks the Dharma"; and if he speaks Dharma, they say, "He speaks the Truth!" For both are one.

— Brihadaranyaka Upanishad, 1.4.xiv[19][20]

John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence.[5] Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.[5]

Ludo Rocher states that Hindu tradition does not express law in the sense of ius nor of lex.[7] The term "Hindu law" is a colonial construction, and emerged when the colonial rule arrived in South Asia, and when in 1772 it was decided by British colonial officials in consultation with Mughal rulers, that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law" and Muslims of India would be ruled under sharia (Muslim law).[7][11][15] However, Hindu law was neither mentioned, nor in use, nor codified, during the 600 years of Islamic rule of India. An attempt was made to find any old surviving Sanskrit text that mentioned elements of law, and this is how Western editors and translators arrived at the equation that "dharma shastra equals lawbook, code or Institute", states Rocher.[7]

Scholars such as Derrett, Menski and others have repeatedly asked whether and what evidence there is that the Dharmasastras were the actual legal authority before and during the Islamic rule in India.[26][27] They have also questioned whether the Dharmasastras contain "precepts" or "recommendations", that is whether the jurisprudence mentioned in Dharmasastras was actually ever used in disputes in Indian society.[28] Early scholars during the British colonial rule such as John Mayne suggested that it is probable that Dharma-smriti texts reflect the "practical administration of law", at least before the arrival of Islam in India.[5][29] However, most later scholars state that Dharma texts of Hinduism are "purely or mostly concerned with moral and religious norms which have some but not a very close relationship to legal practice".[29][30] A few scholars have suggested that the Dharma-related Smritis such as Manusmriti, Naradasmriti and Parashara Smriti do not embody the Hindu law but are commentaries and scholarly notes on more ancient authoritative legal texts that have been lost or yet to be found.[29]

Classical Hindu law, states Donald Davis, "represents one of the least known, yet most sophisticated traditions of legal theory and jurisprudence in world history. Hindu jurisprudential texts contain elaborate and careful philosophical reflections on the nature of law and religion. The nature of Hindu law as a tradition has been subject to some debate and some misunderstanding both within and especially outside of specialist circles."[4]

In South India, temples were intimately involved in the administration of law.[31]

As East India Company obtained political and administrative powers, in parts of India, in the late 18th century, it was faced with various state responsibilities such as legislative and judiciary functions.[57] The East India Company desired a means to establish and maintain the rule of law, and property rights, in a stable political environment, to expedite trade, and with minimal expensive military engagement.[58] To this end the Company pursued a path of least resistance, relying upon local intermediaries that were mostly Muslims and some Hindus in various Indian states.[58] The British exercised power by avoiding interference and adapting to local law practices, as explained by the local intermediaries.[59] The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century.[57][58] The colonial policy on the system of personal laws for India, for example, was expressed by Governor-General Hastings in 1772 as follows,

That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to.

— Warren Hastings, 15 August 1772[2]

For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa 'Alamgiri written under sponsorship of Aurangzeb. For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[57] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra the English categories of law and religion for the purposes of colonial administration.[60][61]

The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from one Dharmaśāstra by British colonial government appointed scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri.[62][63][64] It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis (Maulavis) for interpreting the Islamic law.[64]

The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.[15]

Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828 and 1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance.[15] In 1832, the British colonial government abolished accepting religious fatwa as a source of law.[65] In 1835, the British began creating a criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855.[65] These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt resulting from ehat was perceived in the common mind as an insult to the inherent hegemony of indian people of self rule against the British intervention.[66][67]

In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law.[15] A universal criminal code in India, that did not discriminate between people based on their religion, was adopted for the first time in 1864.[65][68] It was expanded to include a universal procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws.[65] However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India.[69] In 1872, the British crown enacted the Indian Christian Marriage Act which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.[70]

The development of legal pluralism, that is separate law based on individual's religion, was controversial in India from the very start.[2]

Legislation introduced by the British Government was a powerful tool in implementing reforms within the Hindu society.[71][72] Some important legislations were

These laws had generated widespread protests & condemnation from the orthodox elements of the Hindu society. The British government failed to strictly implement laws against child-marriages & consummation of child marriages due to fears of the Hindu society rising up in open revolt against them.

After the independence of India from the colonial rule of Britain in 1947, India adopted a new constitution in 1950.[73] Most of the legal code from the colonial era continued as the law of the new nation, including the personal laws contained in Anglo-Hindu law for Hindus, Buddhists, Jains and Sikhs, the Anglo-Christian law for Christians, and the Anglo-Muslim law for Muslims. Article 44 of the 1950 Indian constitution mandates a uniform civil code, eliminating all religion-based civil laws including Hindu law, Christian law and Muslim law throughout the territory of India.[74] While Hindu law has since been amended to be independent of ancient religious texts, Article 44 of the Indian constitution has remained largely ignored in matters of Muslim law by successive Indian governments since 1950.[74][75]

An amendment to the constitution (42nd Amendment, 1976) formally inserted the word secular as a feature of the Indian republic.[76] However, unlike the Western concept of secularism which separates religion and state, the concept of secularism in India means acceptance of religious laws as binding on the state, and equal participation of state in different religions.[77][78]

Since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. This debate remains unresolved. The Quran-based Indian Muslim Personal Law (Shariat) Application Act of 1937 remains the law of the land of modern India for Indian Muslims, while the Parliamentary, non-religious uniform civil code passed in the mid-1950s applies to Indians who are Hindus (along with Buddhists, Jains, Sikhs and Parsees), as well as to Indian Christians and Jews.[78]

Legislation introduced by the Government of India continued to be a tool for inducing reforms within the Hindu society. Some important legislations were

Acceptance to overseas travelling (see Kalapani) was a reformation within the Hindu society implemented without enacting any legislature.

The Hindu code bills (stated under nos. 4, 6, 7 and 8) were met with severe criticism & condemnation by Hindu right-wing outfits. In spite of the passage of new laws, child marriage continues to be in vogue among Hindus, especially in rural areas. Calls have also been made to free Hindu temples from government control.

• Comparative law
• Dhammasattha
• Dharma
• Dharmasastra
• Divine law
• Henry Thomas Colebrooke
• Jīmūtavāhana
• List of Hindu empires and dynasties
• Religious law
• Robert Lingat
• Sharia
• Traditional Chinese law
• Wareru Dhammathat

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