Introduction
Source of Law means “the roots of the law”, “cause of the law”, “the things from which the laws have been taken”. There are many connotations to the word, “source of law.” This can be the authority that determines conduct regulations that are accepted as binding by the courts. It can mean the social conditions that motivate the making of law for conditions to be regulated. This can also mean the substance from which the rules and laws are learned, in its literal sense. The Sanskrit word Sindhu has been considered the origin of the word ‘Hindu’. A Hindu is an adherent of Hinduism. The personal laws which governed and are even now governing the social life of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.) are compiled in the form of Hindu Law. It was revealed to the people by God through Vedas. Various sages and ascetics have elaborated and refined the abstract concepts of life explained in the Vedas. The sources of Hindu law are ancient as well as modern sources.
Classification of the Sources of Hindu-Law:
Ancient
Sources
I. Shruti
II. Smriti
III. Digests and Commentaries
IV. Custom.
Modern Sources
I. Justice, equity and good conscience
II. Precedent
III. Legislation
Ancient sources of Hindu law:
A.
Shruti
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), 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:
· Sanhita (which consists mainly of the hymns)
· Brahmin (tells us our duties and means of performing them)
· Upanishad (containing the essence of these duties).
B.
Smriti
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 whereby 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. The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha, etc. 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).
Smritis are considered as text which has been remembered and then interpreted by the rishis throughout the generation. There is a further classification of the term Smrities which are as follows
The smrutis can be divided into two –
· Early smritis (Dharmasutras) and
· Later smritis (Dharmashastras).
C.
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 the 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. The main objective of these texts is to gather the scattered material available in the form of smrities and shruties and to compile it in a more comprehensive form for the betterment of society. Thus, these were much logical and to the point in their approach.
D.
Custom
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.
(i) The custom must be ancient. The particular usage must have been practised for a long time and accepted by common consent as a governing rule of a particular society.
(ii) The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
(iii) The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and
(iv) The custom must have been continuously and uniformly followed for a long time.
Customs are of four types:
1. Local Customs- These are the customs that are followed in a given geographical area. In the case of Subbane vs Nawab, Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law.
2. Family Customs- These are the customs that are followed by a family from a long time. These are applicable to families where ever they live. They can be more easily abandoned that other customs. In the case of Soorendranath vs Heeramonie and Bikal vs Manjura, Privy Council observed that customs followed by a family have long been recognized as Hindu law.
3. Caste and Community Customs- These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws. For example, most of the law in Punjab belongs to this type. Custom to marry brother’s widow among certain community is also of this type.
4. Guild Customs – These are the customs that are followed by traders.
Modern sources of Hindu law:
Justice, equity and good conscience-
Occasionally it might happen that a dispute comes before a Court which cannot be settled by the application of any existing rule in any of the sources available. Such a situation may be rare but it is possible because not every kind of fact situation which arises can have a corresponding law governing it. The Courts cannot refuse to the settle the dispute in the absence of law and they are under an obligation to decide such a case also. For determining such cases, the Courts rely upon the basic values, norms and standards of fair play and propriety. Equity means being fair and implies fairness in dealing. Impartiality is the main attribute of modern judicial systems. True justice can be delivered through equity and good conscience. Where no rule is given, unreasonableness would prevail. So this principle is known as equity, justice, and a good conscience and it is also known as Natural law. This principle of natural law was prevalent in India since the British era. So wherever conflict arises in the interpretation of Hindu law this principle is used by the courts either to formulate a new law or to carry forward existing laws.
Practically all the important principles and rules of Hindu law have now been embodied in case law. In such matters, recourse to the source is not necessary. Reference to a leading decision is enough. In this way, various sources cumulate and unite in one to form a wide and dynamic Hindu law. The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. After the establishment of British rule, the hierarchy of Courts was established. The doctrine of precedent based on the principle of treating like cases alike was established. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state, except where they have been modified or altered by the Supreme Court whose decisions are binding on all the Courts except for itself.
Legislations-
Legislations are Acts of Parliament which have been playing a profound role in the formation of Hindu law. After India achieved independence, some important aspects of Hindu Law have been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc. After codification, any point dealt with by the codified law is final. The enactment overrides all prior law, whether based on custom or otherwise unless an express saving is provided for in the enactment itself. In matters not specifically covered by the codified law, the old textual law contains to have application. In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws.
Conclusion:
Hindu Law is a personal law of members of the Hindu religion. However, the scope of its application extends to other groups. Hindu law is considered to be divine. The sources of Hindu law are the places where knowledge on Hindu law can be derived. The sources are classified into orthodox and modern sources
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