HINDU LAW: ITS CHARACTER AND EVOLUTION

Author(s): U. C. Sarkar
Source: Journal of the Indian Law Institute , Apr.-Sept., 1964, Vol. 6, No. 2/3 (Apr.-
Sept., 1964), pp. 213-235
Published by: Indian Law Institute

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 HINDU LAW : ITS CHARACTER AND EVOLUTION

U. C. Sarkar *

There are certain conspicuous features of Hindu law, which

once differentiate it from other systems of law - ancient and mode
Though it was lawyers' law, still originally it was not exactly like p
tive law,1 as the expression is understood in modern jurisprudence
specially, the Analytical school of the West. But many revolutiona
changes, legislative and otherwise, have been introduced into Hind
law - which has virtually to be re- writ ten now in the modern cont
Hindu law was not the command of any earthly sovereign ; no
was it established by any political authority. At one time, Hindu l
was supposed to be of divine origin. But this was only a theory wh
was peculiar to the earlier stages of human thought and found con
venient to explain away many things, which could not otherwise b
done. This theory, like other theories of the earlier periods, at
buted everything to God or religion. The ancient Hindu law w
made by human agents like the sages and philosophers - in the sam
way as law is made to-day by human legislators.
The Hindu legislators were not the kings but the sages, who mig
be rightly regarded as semi-divine beings on account of their high
philosophical speculation and far-sightedness including deep sympa
for social dealings of man with man. They were the leaders a
philosophers for the people. The sages were not only great phi
sophers, but they were also quite sensitive to the working and
development of the society. It was these leaders of thought who g
the Hindu law as we find embodied in the Dharmasutras, the Dhar
sastras, the Arthasastra of Kautilya, as elucidated and elaborated
the different Nibandhas and the commentaries of the later epo
The status of the king was regarded as subordinate to and inclu
in the society of that period. There was, of course, the king, but
himself was subject to the "rule of law", as formulated and enu
ciated by the social philosophers and the sages of the time. The kin
was not entitled to make any law himself ; he was simply to execu
the law and apply it in deciding disputes for which he had bot

* M.A., M.L., LL.D., Principal, Law College, Chandigarh.

1. Mooka Kona v . Ammakutti , 51 Mad. I (F.B.).

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 214 HINDU LAW

original and appellate jurisd

legislative Act passed by the
as the highest tribunal. Th
formulated law, except thro
the texts of Narada2 and B
Aiyangar " Medhatithi rig
law over-riding Dharma" and
not disclose any exercise of a
lations... the king cannot make a new innovative". Professor
J. D. M. Derret 4 is unable to agree with the views of Aiyangar refer-
red to above.5 It is difficult to accept the assertions of Prof. Derret
without some reservations. Though he is emphatically of the opinion
that " despite the opinion of Medhatithi, as expressed in his com-
mentary on Manu (VII, 13), rulers 'did' legislate from time to
time... often in such a manner as clearly to contradict the views not
only of the Smritis, but also of eminent contemporary jurists ", still
in the first place, it must be said that in the Dharmasutras and the
Dharmasastras themselves no legislative competence was recognised
in behalf of the kings ; and in the second place, the references given
by him showing the sources of the examples of royal enactment almost
exclusively indicate a period subsequent to the composition of the
Dharmasutras and the Dharmasastras. The ancient Indian sages
not only made new laws but they also made provisions for repealing
certain existing laws and practices. This can be very objectively seen
from the treatment of the section on what is termed " Kali-varjjya,"
which implies and includes practices and customs not to be observed
or followed in the Kali age. The treatment of Kali-varjjya is to be
found in more or less all the Dharmasastras. These topics have been
subject to critical examination 6 even by the modern courts and

2. XVIII, 19, 23, 33, 52.

3. II, 18-27.
4. See the Contribution for the Fourth Conference (1954) of the International
Academy of Comparative Law in Section I.D. 2 (Law, Religion and Morals ).
5. Introduction by Dr. S. K. Aiyangar to " Hindu Administrative Institutions "
of Dexshitar, pp. 32-34. " The administrative machinery was not entrusted with the
legislative or the law-making functions. .. Therefore, the king and his agents, who
carried on the Government were as much subject to law as the subjects themselves...
This absence of legislative power in the administration takes away the important
influence that had the tendency to make the ruler degenerate into an autocrat."
6. Inderm v. Ramaswami 13 M.I.A. 147 ; Padma Kumari v. Suraj Kumar i 28 All.
458 ; Bai Gulab v. Jeevanlal 46 Bom. 871.

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 U. G. SARKAR 215

legislatures. Reference may be ma

and " Apaddharma " which also h
them.

Thus Hindu law was made not

though had no political author
commanding the highest revere
the sages were not in the shape
scriptural literature, which ha
enshrining the speculation of th
their mature inspiration and supr
colour of revelation or recollecti
without its practical significance
sanction behind the Sruti and th
of political sovereignty was neces
A careful and critical examination of the contents of the Smritis
will readily indicate that most of the rules and principles were more
or less found in common in all the sages. Sometimes the language
itself was identical. This can be explained only on the hypothesis
that the authors of the Smritis did not necessarily propound anything
absolutely new, they simply reproduced or reduced to writing what
was otherwise being actually followed by the society in practice from
some earlier time. The Smritis do not give us the earliest stage of
the society. As a matter of fact, the Smriti epoch implies a fairly
advanced society with considerable progress in diverse ways.
We have no evidence or indication of the still earlier or the earliest
stage of the Hindu society. No society or people begins with some ready
made customs or practices, far less with any written or codified law.
This is generally true of more or less every system of law. Hindu law
was also not an exception. So, even prior to the society of the
Smriti era, there were other stages of the society, in which customs and
practices were growing gradually and imperceptibly to be crystalised
only after a considerable length of time. In this sense, it is substan-
tially correct to say that Hindu law was essentially based on
customs and usages of the population, which was an admixture of the
Aryans and the Non-Aryans. The term Non-Aryan should not be
used in a despicable sense. In view of the Mahenjodaro relics, it is
difficult to say what was the actual extent of the contribution of each
of these classes of people, who ultimately went to constitute the Hindu
community and society. Thus with the Aryan settlement in India, an
admixture of population of the Aryans and the Non-Aryans took

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 216 HINDU LAW

place even in the pre-historic

on the different rules and c
sections of the population.
The entire body of Hindu l
derived from the scriptura
respects that the Hindus are
Hindu law - which again is
been made applicable to the
subject to legislative amend
Parliament and ultimately th
1 . Hindu law, religion and so
The real distinction between strict Hindu law and the Western
conception of positive law has to be sought in the constitution of the
Hindu society, as governed by the Hindu religion, based on Varna and
Asrama. Positive law is the fruit of political organisation whereas
Hindu law was primarily the result of social organisation.
In ancient India, originally, society was the organisational unit
rather than the state. There was, no doubt, the king ; but he was, in
a sense subordinate to the Brahmin, who was supposed to be the head
of the society. In course of time, of course, the king came to assert
his own position, with the result that the Brahmin was later on con-
fined only to the religious and sacerdotal duties, whereas the king
emerged out as the head of the state or the political society.
Varna and Asrama were the two main props on which the ancient
Indian society was supposed to have been based. As a matter of
fact, Hindu religion came to be known as Varnasrama Dharma. It
was for this reason that all juristic speculations were concentrated on
and saturated with these two fundamental conceptions. The Varna
or caste system might be regarded as a social or group institution,
whereas the Asrama was meant for the regulation of the life of an
individual.7 The sages were never unduly conservative or orthodox,
as they were generally believed to have been. They could, and in
fact they did, perceive that with the changes in the society, the law
also had to be changed.8 The sages not only made laws ; they also had
to amend and repeal laws according to the exigencies of the situations.
The laws that were made by them were very comprehensive and

7. Vide the author s Epochs in Hindu Legal History , Chapter II, 2, pp. 23-24.
8. Parasara specified the different Smritis for the different ages Satya , Treta,
Dvapara and Kali.

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 U. Cē SARKAR 217

rational. They made provisions

the daily routine of an individua
secular duties of all members of
The different stages or Asra
elaborate and detailed a fashion t
undiscussed or unprovided for. U
holder was rightly regarded as t
The last two stages again were th
Indian philosophy on life. The
other philosophical speculations c
the span of human life. The stag
again, for instance, was a cons
society. Now-a-days, the disci
problem not only to the educatio
But what a wonderful discipline
India, the students had to submi
their social position and wealth.
ed as apart from the status and
contract, as it is to-day.
Casteism is now condemned ;
that whatever is best in Indian culture and whatever is best in the
achievements of the Indian philosophy are due mainly to the Brah-
mins, who on account of the caste system, having the advantage of a
sort of division of labour, could exclusively devote their attention
which alone could have crowned their efforts with success. The
Brahmins and the sages also were not blind to the defects of caste
system. Most of the Sutra-writers and Smriti-writers clearly mention
that a Brahmin is not a real Brahmin at all simply because he happens
to be born in a Brahmin's family. To be a real Brahmin, he must
have the necessary virtues also. A Brahmin without the requisite
qualifications cannot be called a real Brahmin, as an elephant made
of wood cannot be called an elephant.9 The strongest defence of
caste system thus came from the Gita where it was said by the Lord
that the four castes were created by Him in accordance with quality
and work. In the dawn of the Indian civilization, the difference of

9. According to one of the verses, quoted by Baudhayana, an unlearned Brah-

min has nothing in him except the name like an elephant made of wood or an
antelope made of leather. The same analogy was used by Vasistha also. (Vide the
writer's Social Legislation with Reference to India).

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 218 HINDU LAW

castes seems to have been unknown and it was introduced and

stereotyped artificially at a later stage. In the Rig Veda, 10 it had
once been mentioned that there were four castes and that they
nated from the different limbs of Purusa who had one thousand
one thousand feet and so forth. The enumeration of the four different
castes stereotyped in later literature both religious and secular, is thus
come across only once in the Rig Veda and that also in the Purusa
hymn of the tenth Mandala, which is supposed by scholars to belong
to a much later period. It is quite natural that in subsequent periods,
along with the growth of several other artificial social institutions and
restrictions, caste-system also became a deep rooted system in the
Hindu society, with the result that the philosophy of caste restriction
had a very important bearing on ancient Hindu law - both civil and
criminal. In fact, there was hardly any topic, which was not
influenced by the consideration of the caste. Gotra,11 adoption,
marriage,13 determination of the amount of interest, realisation of
debts, infliction of punishment for crimes,13 distribution of treasure,
veracity of witness,14 appointment of judges,15 infliction of capital
punishment, application of the ordeals - not to multiply topics- were
more or less determined with reference to the question of caste in
Hindu law. Originally, there could not be anything inherently wrong
in the scheme of caste system which purported to secure the advantage
of administration. Even to-day, Education, Defence, Commerce and
Labour are the most important portfolios for the purpose of Govern-
ment. Besides the four principal castes there were several sub-castes16
and mixed castes 17 also.

If we look at the evolution of the Hindu society, we can easily

find that everything was done and every person lived for the society -

10, X. 90.
11. The twice-born alone have gotras. The Sudras follow the gotra of their
preceptors.
12. Narada, 11, 5; Manu, III, 12, 24.
13. Narada, XV. XVI, 22-27, Manu, III, 267-270.
14. Manu. VIII, 80, 123 ; Narada, 1, 199 ; Brihaspati, III, 22.
15. Manu, VIII, 20-21.
16. Kayasthas were held to be Sudras by the Calcutta High Court, Raj Coomar
Uli v. Bissesur Dyal (1884) 10 Cal. 688. Ajit v. Nirode (1916) 90 C.W.N. 901 ; Bhola-
nath v. Emperor ( 1924) 51 Cal. (488). The Vaidays and the Sadgopas of Bengal are
Sudras; (Rajnandin v. Ashwini (1941) 1 Cal. 457; Durgadas v. Santo sh (1945) 1
Cal 17).
17. Gautama enumerated not fewer than 28 mixed castes based on Anuloma
and Pratiloma marriages.

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 U. C. SARKAR 219

its welfare and improvement. The

or the state which was appreciated
in the beginning of the present c
the Indian thinkers at the very t
human society, as to be found rev
the Hindus. We clearly find therei
ing that of the king implied a bu
Everyone was to do something for
of beasts, birds, and plants. Hen
genuine conception of charity i
Every contribution was with a vie
the society. This also very great
and redistribution. It was thus n
grew more out of sacrifice than s
would think that it was his duty t
cost. The rich would think that t
when they were used for the nee
would be grateful if they could se
the society in general and the fam
family system which was the min
essentially on this wide liberality
Thus the teaching of the ancien
for others - for the rest of the s
ment of the Hindu culture and
and Mahatma Gandhi - to menti
consequent of which the distinct
King Asoka conceived and admin
centuries before the birth of Christ.

We all know that king Asoka was great not so much as a warrior
or a politician but as a winner of the hearts of his subjects by service
and love. He established hospitals and other charitable institutions
not only for men but also for beasts and birds. Many kings ceuld be
named after Asoka, such as, Kaniska and Harsavardhan, who would,
at intervals, empty the entire royal treasury for the people of the
country and they would choose to put on rags. What could be more
conducive to or indicative of the welfare state of which we hear and
talk so much to-day? It is thus no wonder that Asoka with his social wel-
fare conceptions, achievements and performances has greatly inspired
the model of the present Indian leaders for re-moulding the Indian
society as a socialistic welfare one. The administration of the ancient

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 220 HINDU LAW

Indian society - legal or oth

After her independence, In
culture for the whole worl
striving for an Indian welf
welfare state in which all nations and individuals will live as members
of the self-same family fraternised by love, peace, tolerance and co-
existence, as implied by the discipline of " Pancha Shila
2. Hindu law - an admixture of positive law, religion and morality
The ancient Hinda law was, no doubt, mixed up with religion,
morality and social and domestic usages and customs including the
daily routine even for the individuals. Thus we find that the sages
gave us the different Sutra literatures which contain the earliest ela-
borate rules of the society from the stand-points of religion, domestic
duties and the mutual relations between the different members of the
society Hence we have got the Srautasutras, the Grihyasutras and
the Dharmasutras. The Dharmasastras, again were practically ela-
borations of the Dharmasutras. This is the most interesting feature
of the ancient Hindu law founded as it was most comprehensively on
Varna and Asrama. The law was clearly conceived in a very compre-
hensive manner covering all the conceivable aspects of human life.
This aspect of ancient Hindu law has not been studied critically. In
this sense, the sociological studies of ancient Hindu law will reveal its
strength rather than its weakness, its merits rather than its demerits.
It does not require any re-iteration that law and society are most
inextricably connected with each other- one being the means to the
other which is the end. Thus law is a social concomitant. This close
relation again is primarily responsible for the corresponding changes
in law when there are changes in the society. Sociology has been
resorted to as a special and independent study in the West, quite
recently, connected as it has been with the sociological method of
studying law and jurisprudence. The sociology of law has been
defined 19 " as that part of the sociology of the human spirit which
studies the full social reality of law beginning with its tangible and
externally observable expressions in effective collective behaviours and
in the material basis."
The precise relation between sociology and law has been best
illustrated by Maurice Hauriou, who says that " a little sociology

18. Vide the writer's Social Legislation with Reference to India, pp. 22-23.
19. Dr. Gurvitch, Sociology of Law , p. 48.

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 U. G. SARKAR 221

leads away from the law, but

can be said conversely also that
but much law leads back to it. T
by Roscoe Pound, who maintains
advance in the modern science o
tical 20 to the functional stand
jurists and lawyers should con
between law and living social r
for a systematic prediction 22 of
of law gives the jurist 23 an obje
of the law valid in a given milieu
The original elasticity and se
society were disturbed to a very
the British administration, when
foreign pepole and alien civilis
manage to have remained firm enough not to have lost her
original character, though at the same time, as a matter of fact, she
could manage to accommodate for the reception and assimilation of
the alien elements which thus combined together determined the shape
of the subsequent Hindu society, as it is to-day. Hence when we have
to consider the present Hindu society, we have to accept the social

20. Cardozo rightly says, " A fruitful parent of injustice is thfe tyranny of
concepts
21. The jurists according to Dr. Gurvitch are concerned with the questions of
the ł quid juris ' while the sociologists are concerned with the description of the
" quid facti " - in the sense of reducing social facts to the relation of forces. The
reality of the society behind the jural phenomena might be regarded by the lawyer
as " the law behind the law ".
22. According to Justice Holmes also, " the life of the law has not been logic ; it
has been experience". Gf. Sociology and Law in the Social Sciences and their Inter-
relations (New York, 1927), edited by W. F. Ogburn and A. A. Golden Weiser,
pp. 325-26.
23. Roscoe Pound, Interpretation of Legal History (1923), pp. 141-47. The History
of the System of Common Law (1939), pp. 15-16. The Paradoxes of Legal Science (1928) -
Justice Cardozo.
24. A reference may be made in passing to what is known as German socio-
logical " formalism " and American "behaviourism". (Vide F. All. Port. Insti-
tutional Behavijur , 1933, pp. 238 et seq. Social Psychology 1924, pp. 148etseq). Analysing
the different character of the social reality, Durkheim says that sociology is the study
of cultural patterns, social symbols and collective spiritual values and ideas in the
functional relations with social structure and concrete historical situations of the
society -which varies from epoch to epoch and from structure to structure.

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222 HINDU LAW

realities and make adequate al

society has been the resulta
currents - the original Hindu
with the Muslims and the Bri
The attention of the Privy
of admixture of positive law
The following observation o
Balusu 25 explains the whol
occasion in a later case26 to dw
and law in the Smritis. They
commentaries are apt to ming
being positive laws with rule
add that the further study of
these appeals has still more im
caution in interpreting books
foreign lawyers accustomed t
tative books and to administe
take for strict law precepts w
sense and should thus fetter
and should also introduce res
to it inflexible rigidity never
The term Dharma, as used i
sastras, could not mean only
term with a much wider conn
domestic and other regulatio
As a matter of fact, the ter
sense to cover and regulate t
all points of view. It is for t
we find more of social and
work which actually stood fo
Vy avahara. In the Smritis, c
rentiated from those on Pr
early sages also could actually
positive law and what was
valkya 27 lays down that a vio

25. (1899) 26 A.A. 113, 136 ; and a

I.A. 135, 149.
26. Rao Balwant Singh v. Rani Ku
27. 11,5.

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 U. C. SARKAR 223

usage results in one of the bre

that the practice of duty having die
(Vyavahara) have been introduced
decide them, as he has an authority
tiate law from other allied matters was visible even in the earlier
Dharmasastras but ultimately in Narada and Brihaspati, we find that
they had confined themselves only to legal discussions. Thus like a
true jurist, Narada begins his disquisition with the object and necessity
of administration of justice, then he deals with certain preliminary
principles of general application and ultimately proceeds with the
discussion of the different topics of law and procedure, in the most
scientific, systematic and precise way indulging in more division and
sub-division of the topics of law.
A really comprehensive legal study includes the different aspects
and phases of the society. Thus in the words of Roscoe Pound :
"Jurisprudence, Ethics, Economics, Politics and Sociology are distinct
enough at the core, but shade out into each other ; when we look at
the core or chiefly at the core, the analytical distinctions are sound
enough. But we shall not understand even that core and much less
the debatable grounds beyond unless we are prepared to make conti-
nual deep incursions, from each into each of the other. All the social
sciences must be co-workers and emphatically all must be co-workers
with jurisprudence." 29 It is quite evident that the ancient Hindu 30
jurists consciously and competently conceived and applied the sociolo-
gical or the true synthetic method. A synthetic jurist must take into
account the past with the Historical school and must have an eye to
the future as well with the Philosophical school for a proper under-
standing and appreciation of the present with the Analytical school.
At the same time, the growth of the society as a whole in its various
aspects should be considered by a jurist to acheive the ideal result.
As in the story of the Upanishad, the different Western schools of
studying jurisprudence, like the blind men, have hitherto touched and
felt the different parts of the elephant's body and their dispute regard-
ing the character of the subject can be satisfactorily solved only by
the knowledge of the entirety. The movement towards this desired
synthesis had only begun in the West in the beginning^ of the present

28. Sacred Book of the East Series , Vol. XXXIII, 8, 5.

29. Law and Morals , p. 1 19.
30. Vide the writer's Epochs in Hindu Legal History , p. 32.

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 224 HINDU LAW

century, whereas it attained

at the time of the Smritis.
3. Actual administration of Hindu law as contained in the Smritis

Though progressively limited in its scope, Hindu law even to-d

is the law for the Hindus, at least in certain matters, subject to
modification by the legislature and the operation of certain valid
customs. 31 The entire Hindu society of the ancient period was actually
and effectively governed by the Hindu law as it is to be seen in the
ancient texts - followed by the Nibandhas and the commentaries.
Besides these text books on Hindu law, there was no other guide or
code for the society. The kings even had to conduct themselves
according the rules of the Smriti texts. Some of the Western scholars
who came in contact with these Smriti texts, were led to believe that
these texts of law were never actually followed for the purpose of
administration of the society. Maine, Nelson, Burnell and Ellis were
the most prominent among them. But this was clearly the result of
their imperfect knowledge and superficial observations. Thus accord-
ing to Sir Henry Maine 32 the Smriti law "does not as a whole represent
a set of rules ever actually administered in Hindusthan. It is in great
part an ideal picture of that, which in the view of the Brahmins ought
to be the law." But this is not borne out by evidence. Thus it has
been rightly pointed out: "No unbiased student of the Smriti literature
can assert that the system whose beginning and developments are
traceable from stage to stage was wholly imaginary. The rules laid
down are so detailed and practical and their development is so natural
that they must have been the result of actual experience in the daily
administration of justice.
The Dharmasastra works had been produced from the different
parts of the country and some of the commentaries and the Nibandhas
were produced under royal patronage 33 or by authors who were
themselves associated with public administration as Ministers or
judges... Why should they all have indulged in the pastime of writing
about a system of judicial administration which never existed ?
Dr. Jolly also rightly says that the Smritis represented existing

31. Customs have been greatly modified by recent legislation.

32. Ancient Law , (12 Edn.) 17, 18.
33. For an enumeration of the most important authors and their works see
Mayne's Hindu law and Usage , 11th Edn., p. 3, Cf. Jolly, Tagore Law Lectures , pp. 27,
28, 32.

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 U. G. SARKAR 225

practice".34 That the law was actuall

the contemporary literature 35 and
which have been fortunately preser
ments it can be most confidently sa
referrable 37 to the Smriti texts of ancient Indian law. As a matter of
fact, the actual administration of the ancient Indian law can be seen
also in the judicial administration of the Marathas 38 and Maharaja
Ranjit Singh.39 The life of an individual including that of a king
was, as it has already been said, a bundle more of duties than of
rights.40 The kings also were subject to the rule of law and they were

34. The Hindu Judicial System , by S. Varadachariar, Judge, Federal Court,

pp. 231 et seq.
35. Reference may be made to the Sanskrit Drama Mricchakatikam , which gives
a very realistic picture not only regarding the broad points of the then judicial
system but also of some minute details in an actual trial scene. Act IX of the Drama
contains the trial in question. The allegations were that Vasantasena, a prostitute,
was murdered by a merchant Carudatta ; evidence was taken and Carudatta was
found guilty of murder, though as a matter of fact, Vasantasena was not murdered
at all. In spite of the utmost care taken by the judge, in examining witnesses and
taking evidence, by curious coincidence, Carudatta was adjudged guilty, though
happily enough, Vasantasena physically appeared in the execution ground where-
upon Carudatta could be released.
36. (a) The Jay apa tra (judgment) in the case of Tularam Sharma a nd Others (Plain-
tiffs) y' Mani Nath Sharma (Deft.).
(b) The Javanese Jayapatra in the case of Dharma v. JabwaL
(c) The caste judgment given by king Shambhuji, son of Sivaji.
(d) The Syenavijatidharmavinirnaya of the time of Shivaji; (for the detailed
discussions and comments on these judgments, vide the author's Epochs in Hindu
Legal History y Chapter XII).
37. The first of the above judgments is a unique document throwing an in-
exhaustible flood of light on the actual working of the ancient Indian law of the
Smritis even in comparatively recent times. This judgment was fully examined by
Dr. K. P. Jayaswal according to whom every line in the judgment is referrable to the
Hindu Law texts (J BORS* 1920, pp. 248-58).
38. The whole administration and the judicial system of the Marathas in
general and Shivaji in particular were essentially based and modelled upon the
ancient Dharmasastras and the Arthasastrą. (Vide the Judicial System of the Marathas
by V. T. Gune and the Tagore Law Lectures by K. P. Jayaswal).
39. From the account of the judicial system of Maharaja Ranjit Singh it will
be clearly seen that the. administration of justice under the Maharaja was essentially
based on the customs and tenets of the text books on Hindu law. (Vide Maharaja
Ranjitsingh , by Sita Ram Kohli, written in Punjabi).
40. The primary duty of the king was to protect and please the subjects. Thç
Indian kings never thought of self-indulgence in luxury. On the contrary, there
were piany wholesome doctrines accepted by the ancient kings. Thus if the stolen

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 226 HINDU LAW

responsible not only for their

others taking place within thei
The doctrine of " rule of law
from the very beginning. Hence it was not a legacy of the
British rule in India. Even in ancient and medieval India,
kings 42 and judges 43 were alike subject to the rule of law like the
subjects themselves. Thus if a theft could not be detected or the
stolen property could not be recovered, the king was to compensate
the aggrieved person out of his own treasury ; sometimes the villagers
and sometimes the officers concerned were to make good the loss.

property could not be recovered, the aggrieved party was to be compensated from
the royal treasury.
41. This idea has been very effectively illustrated by an episode described in
the " Uttar Ramcharita a Sanskrit drama, written by Bhavabhuti. During the
reign of Rama, in Ayodhya, a Brahmin lost his young son ; the Brahmin came to the
king and demanded why his young son had died a premature death. There must
have been, as alleged by the Brahmin, something wrong with the king or his adminis-
tration. The king Rama also could not summarily dismiss the Brahmin. He sent
his emissaries to enquire what the transgression might have been. It was, however,
found on enquiry that a Sudra was practising penance against the injunctions of the
scripture. It was concluded that the penance practised by the Sudra was the cause
of the death of the Brahmin's son. The Sudra was killed as a punishment.
42. On account of the operation of the rule of law, nobody could be above the
law.
The king himself, not to speak of other members of his family, was equally
subject to the law like the ordinary subjects. According to the story of the king
Bimbisara, as recorded by Heuen Tsian, it is said that in order to prevent fire which
became rather frequent at that time, the king passed a law that anybody in whose
house fire broke out would be banished. One day fire broke out in the capital itself
whereon the king said to his ministers, " I wish to maintain the laws of the country,
I myself must be banished; hence I am going into exile ". With these words, the
king gave up the government to his eldest son and retired to the forest. (For the
case of Prince Jaita v. Sudatta, see the writer's Epochs in Hindu Legal History , p. 101).
43. Kautilya made elaborate provisions regarding the conduct and character of
the judges so that they might readily inspire the confidence of the litigants. Thus if
a judge ever browbeats or unjustly drives out or silences any of the litigants in his
court, he shall be first of all punished with the first amercement. If he defames or
abuses anyone of them, punishment shall be doubled. Again, if the judge does not
ask what ought to be asked or leaves out what he himself has asked, teaches or
reminds, he will be punished with the middle-most amercement. If a judge does not
enquire into necessary circumstances, makes unnecessary delay in discharging his
duty, postpones work with spite, causes parties to leave the court by tiring them with
delay, evades or causes to evade statements that lead to the settlement of a case, helps
witnesses, giving them clues or resumes cases already settled or decided, he be
punished with the highest amercement. If he repeats the offence he shall both be

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 U. G. SARKAR 227

This was the rule enjoined not only

less by all the writers of the Dharmas
Similarly, the Mughal emperors also
considerable extent. Shahjahan wou
pensate the injured persons when th
property could not be recovered. A
great ruler, he was also a great adm
According to him justice was the d
I were guilty of an unjust act ", says
ment against myself. What shall I sa
and others " ? Mannuci says of Jah
wrong in the matter of administrati
in front of the lions that were k
Shahjahan also it has been said that th
unusually cruel punishment for any
He used to keep in his court baske
officers guilty of oppression and ty
snakes. They would not be remove
breathed their last. The above insta
principles of administrative law
Regarding their views that the Hin
actually administered in practice, t
reasons to be misled. In the first p
contents of the literature and the act
was not as intimate as it should ha
was a fact that the law in the real se
a very small fraction of the entire v
the third place, there was substance
the rules of the Smritis were exp

punished with double the above fine and dis

imposes an unjust fine in gold, he shall be fin
or eight times the amount of imposition, w
scribed limit ; again if a judge or a commiss
ment, he shall himself be either condemned
twice the amount of the ransom leviable fo
judge falsifies whatever is a true amount
false, he shall be fined eight times the amo
225).
44. Ibid% Chapter XVI.
45. Yajnavalkya, II, 272 ; Narada, XIV, 12-17, 27.
46. Gautama, X, 46-47.

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 228 HINDU LAW

" ought ". But it has to be rem

not presented in the same form
over, the expression should o
concerned in the sense of mu
rules with religious and social
for this initial confusion or m
misconception was not to be
Western authors who were in
appreciate the real nature and
of the progressively increasing
4. Hindu law - compared and contrasted with other ancient systems
of law

The Hindu law is one of the most ancient, comprehensive and

highly developed systems of law. From the perusal of the different
legal topics and the modes in which they were treated in th
different Dharmasutras and the Dharmasastra, it can be clearly asserte
that the Hindu jurists even of the earliest epoch developed quite a rich
legal system to be favourably comparable with any other known system
of law as of Rome, Babylonia, Egypt or Greece. Thus according to th
provisions of the XII Tables47 of Rome, there were retaliation an
extreme form of Patria Potestas even to kill sons, and there was also
the most cruel form of law there according to which a debtor could b
killed and his flesh distributed amongst the different creditors even
without any regard for the principle of pro rata distribution.
The Code 48 of Hammurabi illustrates that capital punishment
could be inflicted even for offences like trifling theft. There was also
sorcery in ancient Babylonia. Extreme form of Lex Talionis prevailed
there : " Thus if a builder 49 builds a house for any one and do no
build it solid and the house which falls down and kills the owner, on
should put that builder to death. If it kills the son 50 of the owner of
the house one shall put the son of the builder to death." There ar
also several other 51 similar illustrations.
Ancient Accądian 52 laws give us the laws of the Accadians, who
were one of the earliest tribes of Babylonia. The Code consists of

47. II, 6.
48. Translated by W. W. Davis.
49. Ibid , Section 229, as reprinted in the Evolution of Law series, Vol. II.
50. Ibidy Section 230.
51. Ibid, Sections 209, 210, 116.
52. Translated by A. H Sayce.

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 U. C, SARKAR 229

18 sections only dealing mostly with

members of the family and the m
hardly any other topic of civil or cr
The Edict of Hamharb 53 is the m
Dynasty which has come down to
provides for punishment of public o
perpetrate oppression and injustice o
The Hebrew law also inflicted the
innocent child of the perpetrator
According to this system 55 " the fa
the children neither shall the childr
Every man shall be put to death for
The laws of Grotyn 56 discover
mainly for slavery, though there ar
and suretyship as well.
According to the Hindu law, the c
killing the debtor and taking his fl
taking recourse to the process of "
a moral pressure put on the debto
himself lest sòme serious calamity m
in consonance with the ethical an
supplied for Hindu law.
Reference might be made to innu
the ancient Hindu jurists very clear
guidance in discriminating truthf
truthful witness constantly shifts h
lips, his fore-head sweats, his count
dries up, he falters in his speech an
he does not look up and is slow in r
lip ; such a person, who exhibits an
body, word or action is esteemed
claim on his own account or givin
Reliable witnesses generally possess t

53. Translated by J. H. Breadsted.

54. Ibid, XII, 16.
55. Deut : 24, 16.
56. Translated by H. J. Roby.

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 230 HINDU LAW

They are religious, generous,

veracity, lovers of virtue, can
formers to traditional and written law." 57

Sometimes it is alleged that in Hindu law there were ordeals for

adjudication of cases. But there were many wholesome checks on the
application of the ordeals, if any. In the first place, the ordeals were
to be resorted to only in absence of human witness : "In litigation
documents should be sought first ; in absence of documents witnesses;
in absence of witnesses recourse may be taken to ordeals- this is the
injunction of the wise men."58 In the second place, ordeals could be
applicable when both the parties were agreeable and when the plain-
tiff or the complainant declared himself ready to take the punishment
himself in case of defeat.59 In the third place, it was practically a
religious appeal and hence could not be applicable to the unbelievers,
irreligious persons, Vraty as and great criminals.60 Thus if these
characteristics of the ordeals are minutely examined and analysed, it
will be found indirectly that in many of them, curiously enough, the
doctrine of presumption of innocence in favour of the accused persons
will be evident. In many cases, again, there could not be any cer-
tainty about the result - the element of chance or lottery remaining
predominant. It may also be mentioned here that no ordeals were
mentioned in the Dharmasutras ; Manu also just alluded to only two
of them ; the types of ordeals were multiplied only by the later Smriti
writers. It was, however, not peculiar to Hindu law alone. Trials
by ordeal were to be found in England also even upto 1819, when the
Parliament abolished the last ordeal by an Act of Parliament.61 As
regards the nature and occasion for applying ordeals in trial of cases
it has been very significantly said by Maitland :
" If two of litigants, the one contradicts the other flatly if the
plain " You did " of the one is met by the straight-forward " You
lie " of the other ; here is a problem which man cannot solve.
He is unable yet to weigh testimony against testimony to cross-
examine witnesses, to piece together the truth out of little bits of

57. Vide Dr. P. N. Sen, Principles of Hindu Jurisprudence (Tagorc Law Lectures) ;
Narada, 1, 193, 196.
58. It is an oft-quoted couplet from the Hitopadesa , the exact authorship being
unknown.
59. Vide Asahaya and Narada, I, 157.
60. Narada, 1, 332. 338.
61. Thorton's case in Maitland's English Legal History , pp. 62-63.

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 U. G. SARKAR 231

evidence. He has recourse to the sup

one or other of the two parties is to
God ".62

Lastly, parallel sets of courts of law a

to both in Rome as well as in England
was necessiated for the genius of the Hi
two classes of people- the Aryans and t
(as in Rome where there were the Pat
same courts and administrators in Hind
law along with what might be regar
superiority of the ancient Hindu jurist
at the same time accommodating enoug
suitable to the needs of the hour, in
progress of the society.
5. Origin and development of Hindu Law
Hindu law is undoubtedly one of the most ancient systems of law.
Mayne63 does not at all exaggerate when he says that "Hindu law has
the oldest pedigree of any known system of jurisprudence and even
now it shows no signs of decreptitude." Nothing, of course, is known
definitely about the earliest authors of the Srutis of the Smritis - their
personal history, time or place. It is not correct or necessary to hold
the view that Hindu law is of divine origin. No doubt, in the scrip-
tural literature there are many references to divine mediums and
sources, but to be quite scientific and accurate, the speculations, produc-
tions and promulgations - in whatever form - must be regarded as
strictly human. Definite informations are not possible because these
authors flourished long ago and they did not leave anything behind
them for their personal identification. The different authors, who
were responsible for the different scriptural literature were undoubtedly
outstanding and extraordinarily capable persons living the simplest and
the most honest type of life having no other complicated pursuits in
life except philosophical and sociological speculation. They were neces-
sarily far superior to the ordinary run of the population and they were
thus rightly regarded as semi-divine personalities out of reverence.
So far as the origin of Hindu law is concerned, there were also
other religious and philosophical associations for which it was usually

62. Ibid, p. 61.

63. Hindu Law and Usage , 1st Ed. Preface.

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 232 HINDU LAW

regarded as of divine orgin. T

gical speculations must be soug
Order presided over by the V e
the relation between law and
earliest epoch in the history
The second epoch was the Ar
Dharmasastras of Manu and
Brihaspati and Katyayana repre
contribution which was subsequ
and the commentaries. Eeven t
are the true index of the go
history of Hindu law can be, li
from the point of view of the H
British period and thereafter
Hindu period, Hindu law develo
extraneous influence64 in view
society, which was primarily
second period, the growth of H
same time, there was hardly
This might be explained by the
similarity between the basic 65
Musilm conquest and the cons
the growth of Hindu law was
were governed by their own la
civil law. Criminal law was ad
their officers. During this pe
disputes by arbitrations and
British rule in India, however,

64. According to G. P. Sherman the

Baby Ion. ģ. The Babylonian system
Law as found in the institutes of M
p. 19). There seems to be no truth in
Hindu law, as propounded by Manu w
the Babylonian law. As a matter of f
be found in the whole of the Smriti
quite in isolation by the Hindu jurist
Smritis were composed, there could no
course either social or philosophical
also will lend support to this content
between the two famous codes of Manu and Hammurabi.
65. See the writer's Epoch in Hindu Legal History , Gh. X.

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 U. G. SARKAR 233

of Hindu law though not always in

Many foreign juristic principles w
through legislation and adjudication
and interpretation. Though in a s
static during the Muslim period, it beca
The Hindu system of law was natural
which was not an unmixed blessing.
Whether the changes brought abou
shape of legislative Acts and decided
or mixed for the Hindus is a question
by jurispudence alone. The correct
proach to the question from the sta
cultural sentiments. It has also to be remembered in this connection
that with the progress and consolidation of the British rule in India,
the Hindu society assumed a peculiar character because of its contact
with the Western education and civilization. The recent codification
of Hindu law in certain important branches was neither an imperative
necessity nor an unmixed blessing. As a matter of fact, to an
impartial observer, the spirit of the recent legislation on Hindu law had
been virtually for the accentuation and acceleration of the tendencies
that had already been manifest in the modifications and innovations
effected by the British administration. 66 Though the Muslim rule was
greatly responsible for suppressing and arresting the progress of the
Hindu society in its natural and orthodox channel, the British rule was
again responsible for expanding and liberalising it in various directions*
The Dharmasutras, the Dharmasastras, the Arthasastra of Kautilya
along with the Nibhandhas and the commentaries reveal a state of the
society in which the Hindu law was highly developed both in its civil
and criminal sides including their substantive as well as adjective
aspects. But this highly elaborate and perfectly developed system of
Hindu law was greatly eclipsed 67 by the Muslim legal system when
the Muslim rulers succeeded in establishing and consolidating an empire
in India. Though the Hindu law did not die out during the Muslim
rule in India, it almost ceased to have the official prominence and
recognition. The distinction between the personal laws of the Hindus
and Muslims began in India with the Muslims and were maintained

66. Ibid Introduction, pp. 1-4.

67. Even at the present time, it is clearly seen that all legal terms other than
English are of Perso- Arabic origin. No Sanskrit term has ever survived except in
certain Sanskrit judgments themselves.

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234 HINDU LAW

by the British rulers also. Wa

proposition that the Hindus sh
Sastras and the Muslims should
The policy thus enunciated towa
rule in India was on the whole s
whole administration. And fur
realisation of this scheme, Hin
inted to help the foreign judge
laws. These posts were, howev
Act (XI) of 1864. In course of t
tendency was to reduce the scop
They began to widen the scope
the cost of the range of the pe
laws were passed to make the l
Hindus and the Muslims. The Indian penal Code, the Indian
Contract Act, the Indian Evidence Act, the Civil Procedure Code and
the Transfer of Property Act are some of the most important legisla-
tive enactments to show that the differences between the two system s
of personal laws, as they originally existed, were being gradually
obliterated.
From the above brief historical sketch, it is quite obvious that
originally Hindu law was territorial in character being applicable to
all the inhabitants of Aryavarta or India. But after the advent of
the Muslims it could no longer claim to be absolutely territorial ; it
was confined to the community of the Hindus alone. Thereafter, in
pursuance of the British policy of uniformity of personal laws, as far
as possible, certain general and common laws were passed reserving
only some definite and specific matters like marriage, adoption, etc.
to be governed by pure Hindu law, as derived from the Sastras - sub-
ject further to the operation of certain legislative enactments and
customs and usages unless they were immoral and against public
policy. These specific subjects again were going to be codified and
amended by the Hindu Code Bill. Though the Hindu Code Bill could
not be passed as a whole, some fragments thereof comprising marriage,
succession, adoption, guardianship, etc. had been passed into
laws. A few topics of Hindu law still remain to be codified and
amended in pursuance of the policy followed in this connection.
These topics are co-parcenary, partition, re-union etc. Thus specially
after the recent legislation on Hindu law, codifying and amending it
substantially, the scope for looking into the original provisions of

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 U. G. SARKAR 235

Hindu Law, as enshrined in the Dh

limited. Again, as it has been obser
able to the Hindus on account of its
legislative sanction accorded to it
British administration. It does no
the nature and scope of the present
different from the provisions of the
made by the authors of the Dharma
The society for which the original
undergone drastic changes - partl
herent evolution and partly on accou
due to India's contact with the Musli
different culture, religion and socia
law survived too long, mainly in i
was felt in different quarters in diff
Hindu law in view of the social chan
there might be a harmonious consonanc
and the purpose of the law. Though
ment among the different thinkers
tum and the quality of such changes
progressively realised that to stick t
enjoined several centuries back would
that does not again necessitate tha
honoured should be changed only
within reasonable limits and for rat
to. But if the changes are to be foist
its own genius only on account of som
sure to be resented. This resentment
storm of protest and criticism that w
Bill. The Hindu law as we have it
considerably secularised, modernis
conception of Hindu law which was
orthodox and considerably conservat
the social context and the social n
changed beyond recognition, it is no
also should be pre-eminently noticea
and principles of Hindu law.

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