The Authoritative Sources of Hindu Law

The authoritative sources of Hindu law:

By Justice Mahmood of Allahabad High Court in 1886:

It is a proposition of undoubted authority that the original fountain-head of the Hindu system of jurisprudence are the Vedas denominated as Sruti, or "that which has been heard," being supposed to be the ipsissima verba of the divine revelation. Next in order of authority come the Smritis, or "that which is remembered," being regarded as the expression of the divine will conveyed to mankind by inspiration through the agency of human beings. Both these propositions are supported by the ordinances of Manu, which lay down: "No doubt, that man who shall follow the rules prescribed in the Sruti and in the Smriti will acquire fame in this life, and, in the next, inexpressible happiness By Sruti, or what was heard from above, is meant the Veda, and by Smriti, or what was remembered from the beginning, the body of law: those two must not be oppugned by heterodox arguments, since from those two proceeds the whole system of duties. Whatever man of the three highest classes, having addicted himself to heretical books, shall treat with contempt those two roots of law, he must be driven, as an atheist and a scorner of revelation, from the company of the virtuous."--(Manu by Jones, Chap. II, Sections 9, 10 and 11).

The supreme authority of these two sources of Hindu law is therefore absolute and above question, though it may be added here that by an inflexible rule of Hindu jurisprudence, the Smritis are never taken to be in discord with the Vedas; and I may use the language of a Hindu lawyer himself in saying that, although the Vedas are held to be the ultimate sources of law, for all practical purposes the Smritis are treated as the sources of absolute authority upon all legal matters: "The authors of Smritis are human beings, but in the opinion of the orthodox the Rishis knew the Vedas better than any man, in these degenerate days, can. Anyhow, the Smritis are now quite as authoritative as the Vedas in the estimation of orthodox Hindus." (Siromani's Hindu Law, p. 14). Somewhere in the order of precedence, either between the Srutis and the Smritis, or more probably after them, come the Puranas, which the celebrated Colebrook states "are reckoned as a supplement to the scripture, and as such, constitute a fifth Veda." (Misc. Essays, vol. i, page 12). And this view is supported by a passage of the sage Yajnavalkya, which lays down that "the Vedas, along with Puranas, the Nyaya, the Mimamsa, the Dharmasastras, and the Angas are the fourteen seats (sources) of knowledge and duty," (Mandlik, p. 158). I mention this in respect of the authority of the Puranas, because one of these, the Kalika-purana, is the ultimate source of authority on which the learned Pandit on behalf of the appellant has relied in support of the whole of his contention upon the point now under consideration. Next in the rank of authority are the Vyakhyana or Tika, being glosses or commentaries upon the Smritis; and last of all come the Nivandhana, or, as Mr. Morley has described them, digests " either of the whole body of the law or of particular portions thereof, collected from the text-books and their commentators." (Morley, On the Administration of Justice in British India, p. 203).

Such then, according to my conceptions, are the sources of Hindu law and the comparative authority to which they are respectively entitled. And I may here add that by far the most authoritative of the Smritis is the Institute of Manu, and next in rank to him is the Institute of Yajnavalkya, for which we are indebted to the labours of Rao Sahib Vishvanath Narayan Mandlik, the distinguished Sanskrit and Hindu lawyer of Bombay, who has published an English translation of the work. Further, by far the most authoritative commentary on the Institutes of Yajnavalkya is the Mitakshara of Vijnanesvara, which in all legal matters possesses the highest authority throughout the whole of India with the exception of Lower Bengal. (Mayne, Hindu Law and Usage, Section 26).

I now proceed to state how the Hindu Law has divided itself into various schools and subdivisions. The Dharmasastra, or law in its ordinary sense, includes religious observances as well as rules of law which are based upon religious tenets. The Dharmasastras have in the end resulted in a divergence of schools on account of the fact that Hindu theology, law, and metaphysics are commingled with each other, and the tendencies of the method of reasoning which are held to be applicable to one are allowed to influence the interpretation of the other branches of knowledge. And we have the authority of Colebrook that there are various systems of analogical reasoning recognized in Hindu philosophy, theology and law. The most important of these systems are the Mimamsa and Nyaya, of which we have the following account:

The two Mimamsas (for there are two schools of metaphysics under this title) are emphatically orthodox. The prior one (Purva) which has Jaimini for its founder, teaches the art of reasoning with the express view of aiding the interpretation of the Vedas. The latter (Ultra) commonly called Vedanta and attributed to Vyasa, deduces from the text of the Indian Scriptures a refined psychology which goes to a denial of a material world. The Nyaya, of which Gotama is the acknowledged author, furnishes a philosophical arrangement, with strict rules of reasoning, not unaptly compared to the dialectics of the Aristotelian school." (Misc. Essays, vol. 1, p. 227). That these systems of philosophical reasoning have led to the establishment of different schools of law, appears from another passage of the same author, to be found at page 316, vol. 1, of Sir Thomas Strange's celebrated work on Hindu law: "The written law, whether it be Sruti or Smriti, direct revelation or tradition, is subject to the same rules of interpretation. These rules are collected in the Mimamsa, which is a disquisition on proof and authority of precepts. It is considered as a branch of philosophy, and is properly the logic of the law. In the eastern part of India, viz., Bengal and Behar, where the Vedas are less read, and the Mimamsa less studied than in the south, the dialectic philosophy or Nyaya is more consulted, and is there relied on for rules of reasoning and interpretation upon questions of law as well as upon metaphysical topics. Hence have arisen two principal sects or schools, which, construing the same text variously, deduce upon some important point of law different inferences from the same maxims of law. They are subdivided by further diversity of doctrine into several more schools or sects of jurisprudence which, having adopted for their chief guide a favourite author, have given currency to his doctrine in particular countries, or among distinct Hindu nations, for the whole Hindu people comprise divers tongues, and the manners and opinions prevalent among them differ not less than their language." The result of this method of legal development has been the establishment of two main divisions of Hindu law, which can be most conveniently described as the Mitakshara school and the Dayabhaga school, the former being again subdivided into four minor divergencies of doctrine. One of the writers has suggested even a further subdivision, and the best way to indicate the various schools and their divisions, is to state them in a tabular form:

This division and arrangement of the various schools has been mentioned by Mr. Morloy and has been generally accepted, with the exception of the subdivision of the Dravida school, which has incurred the criticism of Dr. Burnell, who "agrees with Mr. Colebrook in thinking that the only distinction of real importance is between the followers of the Mitakshara and the followers of the Dayabhaga." (Mayne, Section 33). At the same time it must be remembered, as Mr. Mayne has pointed out, that in the Bamnaad adoption case, in the Madras High Court, 2 Mad. H. O. Rep., 206, as well as the Privy Council, 12 Moo. L. A., 397, a distinction between the Benares and the Dravida schools was recognized, and a somewhat similar distinction has been made between the Andrn and the Dravida subdivisions in Narasammal v. Balaramacharki, I Mad, H. O. Rep., 420. Mr. Mayne (Section 35) then goes on to say that "any one who compares the Dayabhaga with the Mitakshara will observe that the two works differ in the most vital points, and that they do so from the conscious application of completely different principles." There is thus an accidental similarity between the divisions of the Hindu law and the manner in which the various schools of the Muhammadan law are arranged, the two main divisions being the Sunni and Shia schools, and the former, like the Mitakshara school, being subdivided into the four minor divergencies of Hanafi, Shafai, Maliki and Hanbali.