Legal History of India
By Prof. (Dr.) Richa Sharma and Smrithi Bhaskar
The important factors that influenced the ancient legal system were:
- Social Order:
Two important factors played a role
Caste system and the joint family system.
What is a caste? a caste is a group of people solely born into it. They are divisions based on birth. It determines social positions, occupation, living standards, education level, economic status and marriage.
The caste system resulted in inequality before the law. While people in a specific caste were treated equally before the law, different castes were treated unequally.
Dharma is the most important constituent of Hindu thought.
In the Rig Vedic times, there existed complete equality before law, but this slowly transitioned into Varna dharma ashrama or caste basis discrimination.
Caste provided for the beginning of the Panchayat system in India. The 73rd amendment of the Constitution of India gave a constitutional status to the Panchayati system. Though the Panchayati Raj Institutions have been in existence for a long time, it was observed that these institutions have not been able to acquire the status and dignity of viable and responsive people’s bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and women, inadequate devolution of powers and lack of financial resources.
Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
Panchayats now follow a 3 tier system.
Gram Panchayat- Gram Samiti- Zila parishad
Joint Family System:
What is a joint family?
A joint family is 3 generation of men and their collaterals living in a common dwelling, with common profession, resulting in commonly owned property. They were usually patriarchal in nature and lead to the rise of property disputes.
Joint family is regarded as unit of the Hindu Social System.
In case of the death of the head of the family, the property went to the eldest son. This was because of two reasons. Property was not given to women since they would get married and leave the family, which would result in the property leaving the family. The property was inherited by the eldest son since he was the one who would perform the rituals for the deceased. Rights over property were passed on along with duties of performing ancestral rituals..
Two schools fo thought exist.
- Mitakshara School of Thought- Law of Propenquity:
Nearest male blood relative inherits property because he performs rituals.
- Followed almost throughout India.
- The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhanawhich primarily focuses on inheritance procedure. It is followed mostly in Bengal, Orissa and the North-eastern regions of India. it is based on criticisms of the Mitākṣarā
- The central difference between the texts is based upon when one becomes the owner of property. The Dāyabhāga does not give the sons a right to their father’s ancestral property until after his death, unlike Mitakshara, which gives the sons the right to ancestral property upon their birth.
- The most important feature was that it gave inheritance to widows.
Dharma as an influence on law.
Dharma is required for moral, social, ethical, economic upliftment of human beings.
It governs the privileges and duties of man, and standards of conduct.
It is about duty as opposed to the Western concept of individualism and individual rights.
Dharmashastra does not allow for the divine right of kingship since no one is above the law.
- Political Institution and system
- Religion and religious philosophy
Constitution of Courts in Ancient India:
- King’s Court
Criminal cases and suo motto rights.
- Alternative Dispute resolution: Civil disputes
Social issues and disputes.
Cardinal rule for administration of justice:
Justice should not be administered by a single individual
Let king or his ministers transact the business on the Bench.
Institution of Lawyers:
No reference in smritis regarding the separate institution of Lawyers
But the person well versed in law and procedure were appointed to represent a party before the court.
However the organization of lawyers as it exists today was not in existence in Ancient times.
- Judicial procedure was very elaborate
- According to Brihaspati suit or trial consist of four parts:
- If the defender denies the charges,, duty of the court is to provide equal opportunity to both to prove their case
- Evidence were based on three sources:
- and possession of incriminating objects
Appointment of Judges:
- Caste played an important role
- Person who are ignorant to customs, non-believer in the caste system and God etc not to be appointed as judge
- Highly qualified learned in law shall be appointed as judge
- Judge were required to take oath of impartiality
Trial by Ordeals:
- A method to determine the guilt of the person
- Generally limited its application to cases where no concrete evidence available
- These ordeals were
- Ordeal of Balance
- Ordeal of Fire
- Ordeal by Water
- Ordeal of poison
- Ordeal of lot
- Ordeal of rice-Grains
- Ordeal of Fountain Cheese
He should decide the case without concerning the personal gains
If the person performs his judicial duties in this manner achieves the same spiritual merits as a person performing Yajna.
Crimes and Punishments:
- In the Hindu period punishment was considered to be a sort by which the impurities from the man of sinful prompting is removed and reformed his character.
- As per the ancient Smriti writers there were four purpose served by the punishment.
- To meet the urge of the person who suffered
- For revenge or retaliation
- As deterrent and preventive measure
- For reformation or redemption of the evil doer
Methods of Punishment:
- Gentle admonition
- By severe reproof
- By fine and
- By corporal punishment
- The legal system in ancient India reflects the outlook of the intelligentsia of that age. It was of two kinds, namely religious and secular. In ancient Indian society, crime and sin were distinguished as an offence against the state and offences against God.
- Legal system of ancient India included mainly 18 titles of law, although some authorities added a few more. According to Manu, these titles of law were:
- non-repayment of debt
- deposit, partnership business
- resumption of gift
- sale of an article by one other than its owner
- non-payment of wages
- breach of contract
- duties of wife and husband
- partition of inheritance
- repentance after sale or purchase
- dispute between the master and the keeper (of cattle)
- boundary dispute
- too severe punishment
- animal betting.
Further, as per the procedural law under the legal system of ancient Indian society, a cause of action arises when a person is being harassed in a way contrary to the rules of Smriti and usage, lodges a complaint.
Base for present Hindu Law:
- Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters).
Classification of Ancient Legal Literature
- It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.
- The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).
Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.
- The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea and subsequwntly they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis, but they are human works.
- There are two kinds of Smritis namely, Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.
The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha.
- The rules laid down in Smritis can be divided into three categories:
- Achar (relating to morality)
- Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice)
- Prayaschit (signifying the penal provision for commission of a wrong).
(iii) Digests and Commentaries:
- After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. In the first part of this period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.
- The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.
- Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.
Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-
- The custom must be ancient. The particular usage must have been practiced for a long time and accepted by common consent as a governing rule of a particular society.
- The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
- The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and
The custom must have been continuously and uniformly followed for a long time.
Indian Courts recognize three types of customs viz: (a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality. (b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free to marry again during the life-time of the husband. (c) Family custom – these are customs which are binding upon the members of a family. Eg. There is a custom in families of ancient India that the eldest male member of the family shall inherit the estate.
- Manu-smritiis the popular name of the work, which is officially known as Manava-dharma-shastra. It is attributed to the legendary first man and lawgiver, Manu
- Manusmriti contains laws, rules, and code of conduct followed by individuals , communities and nations.
- It was written and compiled during 200 B.C. and 200 A.D.
- Deals with social and moral conduct of a person
- Said to be first book written on the law in the world
- Manusmriti is divided into 12 chapters consisted of about 2694 Sanskrit verses (shalokas)
- Content wise it can be divided it into three sections and they are
- Origin of the World
- Sources of the Law
- Dharma of the four Social classes
- It was adopted and followed in neighboring Countries like Burma, Jawa and Philippines.
Court to be Guardians of Minor and Women:
- The king shall protect the inherited (and other) property of a minor, until he has returned (from his teacher’s house) or until he has passed his minority.
- In like manner care must be taken of barren women, of those who have no sons, of those whose family is extinct, of wives and widows faithful to their lords, and of women afflicted with diseases.
- Adverse possession is a doctrine under which a person in possession of land (it could be immovable property too) owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. In other words, when a party claims ownership of a property they have been in for more than 12 years. It can also be claimed on abandoned property or it can go unchallenged by the actual owner.
- Manu chapter VIII verse 148-147 deals with title to movables lost after ten years adverse possession. Whatever chattel an owner, not being a minor or an idiot, sees being enjoyed by another during a period of ten years without taking any objection, is lost in law to the owner. The adverse possessor shall retain the property.
- Limitation Act Clause 27, 64 and 65 deals with more or less similarly however the time duration mentioned in present laws is twelve years. An important aspect of ancient law of adverse possession was the specific provision made in favor of woman to the effect that their right would not be lost by adverse possession. Manu gives protection to personal property of women from the law of adverse possession
- If we compare Manusmritiwith Yajnavalkya Smriti, we will find a striking difference. The Manusmriti is not a systematic work. It is not divided into work on various subject matters. On the other hand, the Yajnavalkya Smriti is divided into three chapters. The first chapter is called Achara which deals with religion and morality, the second chapter is called Vyavahara, which deals with law, and the third chapter is called Prayaschit which deals with penance.
- Apart from that, the Yajnavalkya Smritiis more concise. It has only about 1000 shlokas, whereas the Manusmriti has about 3000. Also, it is more liberal than the Manusmriti, particularly towards women, etc.
- The Yajnavalkya text most likely dates to the Gupta period, between roughly the 3rd and 5th centuries.
- It also adds model of Legal Procedure:
- Yājñavalkya portrayed evidence as hierarchical, with documents receiving the highest consideration, then witnesses, and finally the five types of ordeals.
- Yājñavalkya distinguished between courts appointed by the king and those which were formed by communities of intermediate groups. He then portrayed these courts as a part of a system of hierarchical appeals.
- This text is purely juridical in character in that it focuses solely on procedural and substantive laws Known as the “juridical text par excellence.”
- Nāradasmṛti is the only Dharmaśāstra text to not cover areas such as righteous conduct and penance.
- Its focused nature has made the text highly valued by rulers and their governments, in the Indian subcontinent and southeast Asia.
- A 12th-century inscription in Champa empire of Jaya Harivarman, in what is now modern Vietnam, declares that its court officials were “expert in all dharmasastras, especially Naradiya and Bhargaviya”
- Similar to all ancient Indian texts, specific dates for the authoring of the Nāradasmṛti continue to elude scholars. Varying arguments have been made and evidences cited but no decisive conclusions have been made. The best timeframe which can be provided is somewhere between 100BC and 400CE
In 1876 manuscript D of the Nāradasmṛti was translated by the German scholar, Julius Jolly, making it available to legal scholars in Europe for the first time. The work was readily accepted in Europe due to its style, content, and structure which was similar enough to Roman legal texts of the time that the scholars felt comfortable dealing with it. Karl Marx even used this translation as a reference for his Asiatic Modes of Production.
- The structure of the Nāradasmṛti is based on the eighteen titles of law, which are also mentioned in the Manusmṛti but with some variation in names