UNIT 03: CHAPTER 1

Ancient Indian Law

Read the following passage carefully and discuss in the class the significance of 'justice'.

One day Emperor Akbar

asked Birbal what he would
choose if he were given a
choice between justice and
a gold coin.

“The gold coin,” said Birbal.

Akbar was taken aback.

“You would prefer a gold

coin to justice?” he asked,
incredulously.

“Yes,” said Birbal.

The other courtiers were

amazed by Birbal's display of
idiocy.

For years they had been trying to discredit Birbal in the emperor's eyes but without success and
now the man had gone and done it himself!

They could not believe their good fortune.

“I would have been dismayed if even the lowliest of my servants had said this,” continued the
emperor. “But coming from you it's . . . it's shocking - and sad. I did not know you were so
debased!”

“One asks for what one does not have, Your Majesty!” said Birbal, quietly. “You have seen to it
that in our country justice is available to everybody. So as justice is already available to me and as
I'm always short of money I said I would choose the gold coin.”

The emperor was so pleased with Birbal's reply that he gave him not one but a thousand gold
coins.

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.

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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
secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16 – 19 centuries)
th th

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.

1. 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 this system 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 'Anglo-
Hindu Law', and the 'Modern Hindu Law'. These three divisions also have an historic context.

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 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.

2. 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.

(i) 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.

(ii) 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 ?igveda, 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

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 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. Âchâras
are the norms of a particular community or group. Just like the smriti, âchâra 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.

(iii) 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.

(a) 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.

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 (b) 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.

(c) 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 (700-
1000CE); 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.

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.
Activity:
Note down all Sanskrit words mentioned in this section and find out their literal meaning.

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