In the discussion of Hindu law, dharma forms the innermost core. It has been the central theme; primary objective of law as well as the principal means itself. Taittyriya Samhita states “Dharma constitutes the foundation of all affairs in the world. People respect one who adheres to dharma. Dharma insulates man against sinful thoughts and actions. Dharma therefore is considered supreme.”
In the ancient texts, law has been described as an aspect of Dharma. Designation of texts that expound law as Dharmasastra or Dharmasutra shows the proximate relation of Dharma and classical Hindu law. In Naradasmriti and Katyayanasmriti, court of law has been termed as dharmasana or dharmadhikarana, which reinforces this argument. The purpose of dharma was to keep everybody within his or her assigned roles. Having a strong foundation in the principles of dharma, the basic tenets of Hindu law emerged in ancient India under the aegis of generations of kings. The great body of Hindu law as known today did not evolve in a singular or particular age or socio-cultural milieu. The Rig-Veda was composed around 1500 BC while the later smritis of Narada, Brihaspati and Katyayana that mark the zenith and are known as the grand trio of Indian jurisprudence, were composed between 4th to 6th centuries AD. The Hindu jurisprudence continued to grow after this through commentaries (tikas) and digests (nibandhas) that Commentaries of Vijnyanesvara andJimutavahana would be valid examples, which in modern Hindu law formed the basis of the Hindu succession law.
One of the significant features of these sources is that it is more or less accepted that “it is not correct or necessary to hold the view that Hindu law is of divine origin. No doubt, in the scriptural literature there are many references to divine mediums and sources, but to be reasonable….must be regarded as strictly human. Definite information is not possible because these authors flourished long ago and they did not leave anything behind them for personal identification.” Hindu law being a human creation and not a divine dictum is therefore amenable to change according to the needs of the time and society as long as it conforms to the basic principles of dharma.
The smriti texts adopted an admirably practical approach of balancing the demands of custom and various other requirements with the dicta of the dharmasastras. Modern jurists and legal thinkers have critically acclaimed its high philosophy and lofty principles that often reminds of the idealism as enshrined in the constitution. At the same time the manner in which it is applied in the modern times as personal law of Hindus mainly in the juridical scope of family law and law related to the religious endowments has been subjected to strong criticism. The application of doctrines of classical Indian law has been severely restricted since the start of the British rule through legislations and judicial decisions. The product often fails to fulfill the requirements of serving the cause of dharma or justice in the context where these terms cab be interchangeably used. Narrow and restrictive interpretations of codified statutes, which claim the backing of dharma, fail to serve the cause of dharma as understood in the opening paragraph.
The critics further say that the specific ancient laws were made for a contemporary society of that time, and the texts always emphasized the role and importance of society. To ensure that the laws adopted are suitable acceptable to the society is asastric requirement in itself. Therefore it is a reasonable expectation that legislators should depend on the broad principles provided in these texts as guidelines rather than extracting specific laws and risk alienating the subjects of law from the law. Before applying a specific law to the modern Hindu society, not only the tradition, but the objective and the implications must be considered carefully. Another valid criticism of Hindu law is that unlike in the past, when it was practically malleable to the day-to-day needs and open to interpretation by a particular society according to its requisites, it is now stagnant saving the process of legislation which may update it. Historical evidence shows that Hindu law has changed from time to time and place to place in order to enable a society with the principles of dharma. However, unfortunately in the present socio-political environment in India, reform of religious law is a controversial quagmire that legislators generally try to avoid.
Hinduism is not a just an assortment of beliefs and practices related to the sacred. It has developed a system of doctrine as well as a body of religious specialists whose task it has been through the ages to elaborate, systemize and rationalize the diverse elements of religious life of the people. The religious specialists of Hinduism including its theologians like all other great religions have been notable in their effort to totalize the claim of religion on the life of people. The instrument for this was developed through the concept of dharma.
“In internal terms, Dharma signifies the obligation, binding upon every man who desires that his action should bear fruit, to submit himself to the laws that govern the universe and to direct his life in consequence. That obligation constitutes his duty: and that is the further sense of the word.”
Thus, dharma covers the eternal order of universe as well as any particular situation in the life of a human being. It comprises all levels of actions, situations, gods and creatures in its many folds of duty. The holistic conceptualization of dharma suggests that any human activity, including inaction, potentially have wide reaching consequences. Therefore, following a path of appropriate behavior is extremely important; and this path has been laid down by the sutras and the smritis.
Therefore, in the concept of dharma, law, morality and religion largely overlap to induce ‘appropriate behavior’ of human beings, subject to their real situation. This element of dharma was manifest in the practice of Asrama and Varnasrama at that point of time. One who follows the dictates of the dharma fulfils his social as well as religious duties. The authors of the religious scriptures therefore viewed the end goal the realization of dharma, but only when every member of the society fulfils his stipulated duty. It naturally follows that “their structure of law has dharma as its axis.”
Dr. Rama Jois’ interestingly take on defining dharma becomes relevant at this point. He says dharma is a code of righteous conduct that was established to enable an individual with the means of controlling is own desires and senses; and to fell content in life. He further adds that the rules of dharma as developed over a long period of time has the follows a main objective of ensuring peace and happiness to the individuals as well as society. He agrees to the point that dharma should be understood as a body of rules that covered together every sphere of human activity.
For example, manusmriti 10.63 states that not indulging in violence with anyone, truthfulness, non-stealing and not acquiring any wealth through immoral methods, control of senses and cleanliness of mind and body meaning conformity in thought, word and deed are the five rules of dharma to be followed by all.
Sarvajna Narayana indicated in his work Hitopodesha that observance of dharma differentiates human beings from the animals. In his opinion,
Consumption of food, sleeping, fear and sexual enjoyment are the common attributes of both man and animals. But the special attribute of man is in his capacity to obey the rules of dharma. Bereft of dharma, man is no better than animals.
Dharma has been held as supreme as all the scriptural texts as the guiding principles for every possible activity of man, and its unique flexibility makes it unique. It provides only some basic tenets which have to be followed and the scriptures including the smritis try to put context to it by providing rules that are applicable in that situation. Otherwise, if dharma is understood as the soul of the scriptures and not the sacred texts themselves, which is according to many scholars the right way to interpret the relevance of the concept of dharma, it strips it of a great function of supplementing substantive law as and when needed. This is proven by most wide definitions that are found in the scriptures themselves. Jois gives an example taken from Mahanarayana Upanishad, which emphatically enunciates dharma as supreme. It says that Dharma destroys sinful thoughts, and that is why it is considered supreme.
According to scholars, the strength of dharma lies in the fact that it is preventive rather than punitive. This is the only reason dharma is still relevant to a modern day context. Dharma is not to be reduced to rule books or codes and statutes; it is a body of social law, which is to be imbibed in culture. A success in this regard will solve the problems of corruption and inefficiency on a long-term basis. The basic tenets of dharma continue to guide the conscience of the country. Werner Menski proved that dharma as a source of law and conscience continuously influences the functioning of the state on a daily basis as it influenced the constitution itself.
In consonance of the above discussion, is posited here that Hindu law, as a conceptual entity and a legal system, is visibly and invisibly present in contemporary Indian law making. It is found that, defying many death wishes and contradicting pronouncements of its demise, Hindu law is alive and well in various postmodern manifestations. “Both at the conceptual level and within processes of official law-making and policy formulation, postmodern Hindu concepts and rules retain a powerful voice in how India, in the 21st century, is seeking to achieve social and economic justice for over a billion people.” Rejecting the agenda of hindutva and its opponents as too narrow and politically motivated, this paper presents a holistic view of Hindu legal systems and concepts and their contemporary and future relevance.
The study of Hindu law has been neglected due to a combination of declining knowledge of its classical foundations and the pressures of modern political correctness, to the effect that studying Hindu law is often seen as a regressive activity, dangerous for minorities and, in particular, for women. For many reasons, the label ‘Hindu law’ still conjures up images of frightful abuses such as ‘sati’, ‘dowry murders’, caste discrimination, untouchability, and other atrocities in the name of tradition and religion. Anything ‘Hindu’ is therefore quickly denigrated in many ways, not only by many followers of monotheistic religions, but also those who imagine and assert that a modern world, by which is often meant a Western-inspired world, can do without so-called primitive religious and cultural traditions.
It might seem that Hindu law is waiting to be reformed away by a purportedly secular modern successor, the long-proposed Uniform Civil Code for all Indians. Recent political and legal developments have however negated any possibility of the creation of such a legislation, not to mention its being passed in the Parliament. While ‘law’ has been treated as a separate field, as though it does not belong to the federation of social sciences, Hindu law is often not even classed as law. This happens partly because of its presumed death some time ago, but more so because of resurgent fears that the religious basis of Hindu law might one day be revived in India. Consequently, the view is taken that such roots need to be eradicated; either by scholarly cold-shouldering or by active argument against their relevance and vigilant opposition to anything ‘Hindu’ that rears its head. The confused debates about Indian secularism are elaborate testimony to such complex and often hidden agenda, as well as demonstrating, for all to see, that we are neither able to define ‘law’ nor ‘religion’ in universally agreed ways. Most scholars do not want to see such basic problems. Thus, the problematic natures of the nature of law itself, and our divergent and partisan understandings of it, are not built into analyses, as they should be.