India is a place where people of all faiths live together. It is evident that religious views of the people cannot be ignored when it comes to ruling them, but the question is what should be deemed law and what should not, as well as which sources should be examined when drafting laws to rule people of various religions. Islam and Hinduism are India’s two major religions. Aside from that, Sikhs, Buddhists, Jains, and Christians make up a sizable portion of the population. As a result, it is vital to analyse all of the sources considered before enacting legislation affecting people’s lives, particularly personal affairs such as divorce, weddings, and inheritances.
Law of Hinduism
Hindu law is nothing more than the concept of dharma, which is not specifically defined in Hindu law but has come to mean a person’s way of life, which encompasses all aspects of his life. Everything in a person’s life is incorporated and guided by dharma, from birth to death. In other terms, dharma is sometimes referred to as Hinduism’s guiding force. It offers principles for healthy human conduct, teaches love for all, and outlines the responsibilities that each individual bears toward society as a whole. Dharma was also a major law that ancient kings, particularly Hindu kings, utilised to govern the populace. All laws passed had to be in accordance with the dharma; in other words, the king was not above the dharma and had to reign in accordance with it.
Hindu law’s origins
Hindu law is made up of a variety of texts and scriptures, and its development was both natural and aided by legislation passed during the British period. Hindu law can be split into two categories: ancient and current origins.
Religious texts such as shrutis and smritis, as well as numerous Upanishads, which were also part of Hindu law, are among the ancient sources.
Shruti as a legal authority
Shruti is derived from the word “shur,” which also means “to hear.” The Shrutis are regarded as the most important source of Hindu law. Shruti is also known as Veda. There are four Vedas, according to Hindu law: Rigveda, Samveda, Yajurveda, and Atharveda. The brahmins used to tell the people what was written in the Vedas. Because brahmins were thought to be learned individuals, anything they said was deemed to be of high importance and the law of the nation, shrutis include what the brahmins wrote and uttered. Brahmins also inform us about the responsibilities that each individual must fulfil and how to carry out these responsibilities. The substance of these responsibilities can be found in the Upanishads.
Smriti as a legal source
Smriti comes from the word “smri,” which meaning “to remember.” Smritis are the sections of shrutis that the sages forgot to explain in their original form and instead wrote down in a language that they were familiar with; shrutis are thus regarded the foundation of smritis. Smritis are divided into two categories: Dharmasastras and Dharmasutras. Dharmasastras contain the principles governing Hindu morality, whereas Dharmasutras contain the rules governing governance, caste, interpersonal relationships, economic concerns, eating habits, and so on. There are so many smritis that it’s impossible to enumerate them all, but two of the most well-known are Yajnavalkya smriti and manusmriti. Manusmriti is also regarded to be Manu’s first legal book.
Commentaries and Digests
The digests and commentaries made by various authors of Hindu law are the third most important source of law. Commentaries generally comment on the smritis, and the period covered by commentaries is from the seventh to the nineteenth centuries AD. The foundations of numerous schools of Hindu law were also laid by commentaries. The major features of all the smritis are examined in digests, as well as their reconciling and conflicts. On the two most prominent smritis, manusmriti and yajnavalkya smriti, many digests and commentaries have been written by various authors.
Medhatithi has written Manubhasya on Manusmriti.
Manuka was written by Govind Raja.
Vigneshwara wrote the famous commentary on Mitakshara on yajnavalkya.
Aparaditya was written by Arpaka.
Customs are the most important and oldest type of lawmaking; they refer to the traditions, practises, and activities that people have followed for generations and have been recognised as law over time. The rationale for treating customs as a primary source of law is because people follow customs, and if any of those conventions are not damaging to society, the state has no difficulty recognising them. A custom must be valid, it must be in continuous practise, it must be followed by a substantial number of people, and it must not be discriminatory or contrary to public policy in order to become law.
Indian law recognises three sorts of customs:
Local customs- These are the customs that are practised in a specific geographic location.
Class customs are those that are common among a certain social class.
Family customs are those that are observed by all members of the family.
Hindu law in the modern era
Numerous changes were made to Hindu personal laws after the arrival of the British, and many laws were passed as well. The modern sources of Hindu law include the doctrine of justice, equity, good consciousness, legislation, and precedents.
Good Consciousness, Justice, and Equity
Judges used to deliver judgements based on the concepts of Justice, Equity, and Good Consciousness in circumstances where there was no adequate law to decide the disputes or where there was an existing law. This doctrine was based on the principle of fair play; however, because each judge’s reasoning differed, this doctrine did not have a standard application. Nonetheless, this philosophy played a significant role in altering Hindu personal laws.
The legislature passed many Acts, such as the Child Marriage Restraint Act of 1929, the Hindu Succession Act of 1956, the Hindu Marriage Act of 1955, and the Hindu Minority and Guardianship Act of 1956. All other sources of law are bound by the laws passed. Legislation is codified after it has been properly written and must be recognised and followed by all those who govern it. Legislation is also known as the legislative body in modern times.
Courts were established and the hierarchy was established when British power was established. If a certain case has already been determined, it seems acceptable to follow the same conclusion if the facts of the case are identical. In today’s world, the supreme court’s ruling is binding on all other courts’ decisions.
Because there are so many faiths in India, it is impossible to have a single source for personal laws for all cultures, hence diverse sources must be used when formulating rules for people who follow different traditions. My personal viewpoint is a little different. Nonuniformity occurs when different laws govern persons living in the same country. A nation’s development requires uniformity, and when we analyse the numerous laws of different countries, we find that our law is well adapted to India’s social conditions.
One of the main goals of law is to compel obedience, and there is no better method to compel obedience than to force people to follow their own centuries-old traditions.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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