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CONCEPT OF LAW AND EVOLUTION OF THE INDIAN JURISPRUDENCE BY: ROSHNI SINGH
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CONCEPT OF LAW AND EVOLUTION OF THE
INDIAN JURISPRUDENCE
AUTHORED BY: ROSHNI SINGH
Course: LLM (CONSTITUTIONAL LAW)
Batch: 2023-2024
Amity Institute of Advanced Legal
Studies Amity University Uttar Pradesh
TABLE OF CASES
1. ASHOK KR GUPTA & OTHERS VS STATE OF UTTAR PRADESH;
(1997) 5 SCC 201 13
2. UNION OF INDIA & ANR V RAGHUBIR SINGH; (1989) 2 SCC 754..................... 13
3. BANDHOWA MUKTI MORCHA VS UNION OF INDIA; AIR 1984
SC
802........ 13
4. SARLA MUDGAL V UNION OF INDIA; (1995)
3 SCC 635................................... 14
5. G. S. MANJU W/O P. AJITH KUMAR V K. N. GOPI @ GOPINATHAN PILLAI AND OTHERS; 2019 INDLAW KER 2695, 2019 (4) KLT
634..................................................................... 14
6. KARNAIL SINGH AND OTHERS V STATE OF
HARYANA; 2019 INDLAW PNH 1659, 2019 (3) RCR(CRIMINAL) 396................................................................................................ 15
7. NATIONAL INSURANCE COMPANY LIMITED V
BAPU KHAN; 2015 INDLAW GUW 696, 2016 (4) GAULR 627.................................................................................................. 16
8. RAMENDRA SHAH S/O RAM SWARAN SHAH V SHEW RAM SHAH
AND OTHERS; 2015 INDLAW GUW 79, AIR 2015 GAU 80, 2015 (2) GAULR 477.................................. 16
9. UNITED RICELAND LIMITED AND ANOTHER
V STATE OF HARYANA AND OTHERS;
1995 INDLAW PNH 198, 1996 (114) PLR 227, 1997 (104) STC 362.................................
ABSTRACT
This paper explores the multifaceted
landscape of Indian jurisprudence, delving into its evolutionary trajectory by dissecting the concept of law and its interaction with various schools
of jurisprudence. The key schools examined include the Natural School,
Historical School, Analytical/Positive School,
Realism School, and the Sociological School. Through an in-depth analysis, we unravel how these schools
have influenced the development of Indian legal thought.
Furthermore, this paper investigates the intricate interplay between
Dharma, the ancient Indian concept
of moral and ethical duty, and Indian jurisprudence. It highlights how Dharma has remained a guiding principle in
shaping the foundations of law in India and continues to be a significant influence.
The evolution of Indian jurisprudence is not merely an academic exercise
but a dynamic process. This paper
discusses how Indian jurisprudence has adapted to changing societal
norms, legal challenges, and global influences. It underscores the
judiciary's pivotal role in adopting
and adapting the Sociological School of jurisprudence to address contemporary issues,
thus bridging the gap between traditional values and modern legal paradigms.
In conclusion, this paper offers
a comprehensive overview
of the concept of law in India and
its evolution through the various schools of jurisprudence. It illuminates the
enduring influence of Dharma and
underscores the flexibility of Indian jurisprudence in adapting to the evolving needs of society,
making it a compelling subject
for further study and reflection.
INTRODUCTION
LAW has been in force in one form or another ever since the society came
into existence, and practically
speaking, even before the origin of the society. We have seen law and
civilization growing simultaneously
but seldom do people put any emphasis on the principles on which it has been started and that is one of the
reasons, the legislation very often comes with laws and regulations that turn out to be draconian in nature and which
gradually shift a society from progressive to conservative.
RESEARCH AIM
This paper has been written
to understand the concept of law and the principles of jurisprudence and to see the relevance of western jurisprudence
with Indian concept of law. The main focus has been given on the evolution of Indian Jurisprudence.
RESEARCH QUESTION
1. What
is the concept of law?
2. What
are the theories and principles on which the legal system
around the world is based.
3. Does
India have any legal
jurisprudence of its own?
4. Does
the western concept
of law have any relevance with Indian concept of
law?
5. Does
India have a dynamic legal system and does it have shown any evolution
with respect to existing concepts?
RESEARCH METHODOLOGY
The researcher here has followed a Doctrinal exploration technique and
have used secondary data for her research
paper. Have referred
essential sources like bare acts of India,
U.S., ancient texts including
Manusmriti and Yajnavalkyasmriti, case laws, auxiliary sources like books, magazines, published and unpublished articles.
HYPOTHESIS
India has started from Dhrama based jurisprudence and currently following
the sociological school of Jurisprudence.
CONCEPT OF LAW
Law is a large body of rules
and regulations, based mainly on general principles of justice, fair play, and convenience which have been worked out by governmental bodies to regulate
human activities1.
Law, however, is also a normative social practice: it purports to guide human behaviour, giving rise to reasons for
action.2 An essential feature of the law is it is normative, the law is a norm and its objective is not
exhausted by its fulfillment once, it’s a continuous and repeated process to conduct human behaviour. Also as termed
by H.L.A. Hart,
“Law is the primary norm which stipulates the sanction”3.
But apart from the aforesaid definition which can be found in the primary
legal education textbooks around the
world, “what is law?” is still a major question under the study of jurisprudence. Moreover, Jurisprudence is
in itself a huge subject to understand, the term “jurisprudence” has been derived from a latin word “Jurisprudentia” which means the knowledge
of the law, the bifurcation of the term jurisprudence, leads
to the word ‘juris’ which
means ‘law’ and ‘prudentia’ means ‘skill’ and ‘knowledge’.
Jurisprudence, if not highly interpreted, is the study of the
philosophical aspects of law. It assumes
that law possesses certain
features, and it possesses them by its very nature,
or essence,
1 Meaning of Law; Introduction to Law by National Institute
of Open Schooling;
2 Marmor, Andrei and Alexander
Sarch, "The Nature
of Law", The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), First published Sun May 27, 2001; substantive revision Thu Aug 22, 2019
3 H.L.A. HART, “The Concept
of Law, Third edition”, Clarendon
Law Series, edited
by Paul craig
as law, whenever and wherever it happens to exist4 and it
purports to reason out why it is the way it is.
There had been a lot of effort
put into coming
up with a universal definition of the term law by various
eminent jurists in the past, but it has been rightly stated by Baron Hampstead
that no such universally acceptable definition of law could be produced5.
But several attempts have been made where Austin defined law as "the command of a sovereign backed by the threat of a
sanction." He emphasized the importance of a central authority in the creation and enforcement
of law. Hart argued that law is a system of primary and secondary rules. Primary rules are those that govern
behaviour, while secondary rules provide the framework for creating, altering,
or adjudicating primary
rules. Jr. Holmes famously
stated that "the prophecies of what the courts will do in fact, and
nothing more pretentious, are what I
mean by the law." Dworkin believed that law is a matter of moral principles that judges must interpret and apply. He introduced the concept of "law as integrity," where legal decisions should be based on
a coherent and morally justifiable interpretation of legal principles. Fuller argued that law should meet certain
internal and external criteria to be considered
valid. He proposed that the law must be consistent, clear, prospective, and not contradictory. Jerom Hall defined law as
"a collective and institutionalized control of the use of force in society." Pound viewed
law as "social engineering" aimed at achieving justice and solving
societal problems. He believed that law should
adapt to changing
social needs. Locke's
perspective on law is rooted in natural law theory. He argued that law
should protect natural rights,
including life, liberty, and property. Hobbes believed that law is necessary to
prevent the chaos and conflict
that would exist in a state of nature. He saw law as a social contract
that individuals enter into
for their own protection. Joseph Raz's theory of law emphasizes the importance of authority and the need for a
legitimate authority to create and enforce law. He argued that law is a set of rules that are backed by social
institutions with the authority to enforce
them. These are just a few
perspectives on the definition of law, and there are many more in the field of jurisprudence and legal philosophy. The nature and purpose of law continue
to be subjects of debate and discussion among
legal scholars and philosophers.
4 Supra note 2.
5 Dennis Llyod, “Baron Llyod of Hampstead, Introduction to Jurisprudence”, Stevens & Sons,
London, 3rd Edition,
1972
SCHOOLS OF JURISPRUDENCE
Law and its concept are further categorized into different schools
of jurisprudence, the categorization of the law into various
schools is based on their difference in philosophies of the concept
of law.
NATURAL SCHOOL
The Natural Law School of Jurisprudence is a philosophical approach to understanding the law that posits the existence of inherent and objective
moral principles that govern human
behaviour. This school of thought suggests that laws should be derived from these fundamental moral principles, and an unjust
law is not truly a law and should not be obeyed.
Natural law theorists
argue that legal
systems should align
with and promote
these fundamental moral truths like justice, ethics,
and human nature.
Thomas Jefferson in the Declaration of Independence and Bill of Rights of
the US Constitution, has cited Natural
law theory stating
it “the laws of Nature
and of Nature’s God”.
Also, the principle of “following the due process of law” in the USA and the principle of the “Rule of Law” used in the
legal system of both Britain and India is based upon the theory of Natural law.
Notable jurists of the Natural School were Aristotle, Socrates, St.
Thomas Aquinas, Hugo Grotius, John Locke, Sir Edward Coke, etc.
HISTORICAL SCHOOL
The very emphasis made in the introduction of this paper was somehow the
derivation from the historical
school of jurisprudence. This school puts emphasis on “Law being the product of social consciousness.” This social consciousness started even before
the sovereignty.
The Historical School
of Jurisprudence, also known as the Historical School of Law, is a legal and philosophical approach that
focuses on the historical development and evolution of legal systems,
institutions, and concepts.
This school of thought emphasizes the importance of understanding
the historical context and cultural factors
that have shaped the law. This school states that Law
is framed for the individuals and
by the individuals6 considering the evolving requirements of
the people in the society. This
school considered historical evolution, habits, customs, tradition, and
cultural developments as their
primary source of law and historically they have opposed the strict codification of law since the law
is believed to be an evolving process and constantly changing according to the said evolution.
Notable jurists of the historical school were Friedrich Carl von Savigny,
Gustav von Hugo, Heinrich
Brunner, Sir Henry Maine, Ferdinand Mackeldey, etc.
ANALYTICAL /POSITIVE SCHOOL
Legal positivism or the positive
school considered as most important
or modern school
as it puts more emphasis on what the law is than what the law should be.
It is also termed as analytical
school due to its nature of analysis of the existing law rather than being focused on its past or future.
Though most of the jurists
of the positive school had differences
in their opinions but their basis of the concept of law remained the same, that emphasizes empirical observation, scientific methodology, and the study of law as it actually exists, rather than as it
should be based on moral or normative principles. This school of thought seeks to analyse and understand the law
through empirical and objective means.
Since it separates mortality from the law, it provides a concept that the law should be based on the maximum
happiness of the maximum people, which seems to be
a practical approach towards the law and its
enforcement.
Notable jurists of positive school
were Auguste Comte,
John Austin, Jeremey
Benthem, Hans Kelsen,
H.L.A. Hart, Roscoe
Pond, Thomas Erskine
Holland, John Salmond,
etc.
REALISM SCHOOL
The Realism School of Jurisprudence, often referred to as Legal Realism, is a legal and philosophical approach that focuses on
the practical effects and social context of law rather than abstract legal principles or formal rules. Legal
Realists argue that judicial decisions are often influenced by subjective factors,
such as the judge's personal
values, social
and economic considerations, and political considerations. This school of thought
6 Concept of Law and Schools of Jurisprudence, published online on Legal Desire, https://legaldesire.com/concept-of-law-and-schools-of-jurisprudence/,
last visited on 17.09.2023
seeks to understand the law as it is applied in practice, emphasizing the
importance of empirical analysis
and recognizing the limitations of legal formalism.
The jurists who put emphasis on the realist school of jurisprudence were Oliver Wendell
Holmes Jr, Jerome Frank, Karl Llewellyn, Benjamin
N. Cardozo, Roscoe
Pound, etc.
SOCILOGICAL SCHOOL
The sociological school puts emphasis on the law and society
relationship. It purports that the
law is neither an outcome of the principles and philosophies nor the command of the sovereign, but rather the collective consciousness of the society.
The Sociological School of Jurisprudence, also known as the sociological
approach to jurisprudence or sociology of law, is a legal theory and perspective that emphasizes the influence
of society, culture, and social factors on the development and application of law. This school of thought focuses on understanding how law is shaped by and, in turn, shapes
society, rather than solely relying
on abstract legal
principles or moral
values. It seeks
to analyse the relationship between
law and society
and how the law reflects
and responds to social norms, customs, and values.
Prominent Jurists associated with the sociological school of
jurisprudence are Max Weber, Eugen Ehrlich, Roscoe
Pound, Karl Renner,
etc.
There have been several other thoughts that emerged from time to time to
show the actual nature of the law or
the principles on which any country's legislation are based. Important to consider that though the basic principle
of the emergence of law in any part of the world remains the same, it does vary from nation to nation on the basis
of their local custom, traditions, religious
aspects, and social
structure. The same difference in principles can be seen in
the Indian legal system. The history of ancient legal jurisprudence lays down
several principles and aspects.
DHARMA AND INDIAN JURISPRUDENCE
In ancient Indian society, law and dharma were not distinct concepts. In
dharma Sastras, Smrities, and Arthasastra, the concepts of
justice, law, and religion were not distinguished, and invariably justice was equated
to dharma and injustice with Adharma.7
A thorough study of sources such as Vedas, Puran, Upanishads,
Dharam-Shastra, and Smritis, from which ancient India derived its legal and justice system will show how Indian jurisprudence
differs from the other schools of jurisprudence. Indian jurisprudence is the dharma-based justice system, and thus it is more of a duty-oriented than command-oriented.
It has been emphasized that those
who exercise political power must wear the hand glove of dharma and 'principles of dharma govern every sphere of activity
including governance of the country.8
Dharma in its very essence propounds the now-called theory of the ‘Rule
of Law’, the same can be seen, without
any interpretation, widely
cited passage from Brihadaranyaka Upnishad:
Law is the kings of kings, far more rigid and powerful than they; there is nothing higher than law; by its
prowess as by that of the highest monarch, the weak shall prevail over the strong.9
It is very clear from the passage
that there was an
established concept of Supremacy of Law.
The ancient world was replete with tracts articulating various moral,
religious, and customary laws
which, when enforced by the sovereign authorities, held the status of law.
Examples are the Dharmshashatra and more particularly the Manusmirti. It is worth
noting that, according
to these texts, the kings
were almost universally regarded as subjects to the law(s), and not – as in the Austinian or Schhmittean legal
theories – sovereign over the law. This notion, that the king bore duties and obligations towards the welfare of his
subjects, is termed as Rajya Dharma10.
7 N.C.
Sen Gupta, “Evolution of Ancient Indian Law” 336 (Calcutta 1954)
8 Fredrick
Max Muller, “India: What Can It Teach Us”, Pg 6.
9 Gajendragadkar,
1965: 119
10 Aakash
Singh Rathore and Garima Goswamy, “Rethinking Indian Jurisprudence: An Introduction
to the Philosophy of Law”, published by Routledge
Dharma is different from religion11, though it is used
interchangeably, the difference between the
terms is very clear and has been clarified from time to time both by the legal
scholars and the judiciary. Since the
Indian legal system has gone through significant changes over the course of time and its history of invasion
played a crucial role in creating religious diversity within the country
and the same has also played its role in structuring the legal system
we have presently in the country. And since
India is a secular state, it makes it even more important to draw a
clear distinction between ‘Dharma’ and ‘Religion’.
EVOLUTION IN INDIAN
JURISPRUDENCE
Ancient Indian jurisprudence shows its inclination towards the natural
school of Jurisprudence, As according to the theorists of the natural school, liberty,
equality, and fraternity are inherent and ‘natural’ to man, and similarly, in the
ancient Hindu text, the right of human by birth were given more importance and legal system
were often directive than obligatory, with no or very rarely any sanction
associated to it, hence giving
more power to the individual rulers to decide
the course of legal system for their kingdom. However, even though
ancient Indian text didn’t provide
penalty or sanction, it does come up with the term ‘Prayaschit’ i.e. atonement,
which can either be self-atonement or
directive atonement, some Smiritkars, for e.g. Yajnavalkya, in his Yajanavalkya Smirti divided the book
into three parts, The first chapter is called Achara which deals with religion and morality, the second chapter is
called Vyavahara, which deals with law, and the third chapter is called Prayaschit which deals with penance12.
However, what can be natural
to one society or at a certain time in the society can differ from another
society or at another time in the society. Indian
jurisprudence gradually shifted from the natural school to a more positive school of jurisprudence, where the rulers became more
11 Rajesh Himmat Lal Solanki vs Union of India, GHC,
2011, the apex court while citing A.S. Narayana Deekshitulu vs State of A.P.
& Ors, (1996) 9 SCC 548, stated that “in the very decision, the Apex Court
(through Hansaria, J.) (supplementing), observed that the very often the words
‘religion and ‘dharma’ are used to signify one and the same concept or notion. To
put it differently, they are used interchangeably. Dharma is said to be ‘Sanatan’,
i.e., one which has eternal values; one which is neither time-bound nor space bound.
It is because of this that Rigveda has referred to the existence of ‘Sanatan
Dharmani’. The concept of ‘dharma’, therefore, has been with us for time
immemorial. Dharma is for the stability of the society, maintenance of social
order and well-being and progress of humankind.”
12 Raj Vardhan Tiwari, “ANCIENT INDIAN JURISPRUDENCE,
by Justice Markandey Katju, Judge, Supreme Court of India”, Speech delivered on
27.11.2010, Banaras Hindu University, Varanasi, published, on academia.edu
important and powerful and their ordain became the legislation, giving
rise to the analytical school/positive
school which saw the law as it and didn’t consider how the law should be, whether it be good or bad, entirely
contrary to natural law, which state “a bad law is not a law at all and should not be obeyed”. This
rise of positive schools can be seen during the Islamic era and it reached its peak during the European invasion, more
particularly during the British Raj.
It does provide a set of rules and regulations, leaving no or very less scope
of vagueness as against
the natural school.
The positivism of the legal concept though of great importance and
greatly suited for the modern era,
but it was defective in its social connection and relevance aspect. It
discarded the study of social
behavior, economy, history, custom, etc., since it believed these aspects are beyond the scope of jurisprudence and
shall be covered under sociology. The legislation that was influenced and was the outcome of positivism didn’t align
well with society. This theory of
positive school narrowed down the jurisprudence and nearly separated it from
the realities of society and hence made it very
short-lived.
After being tortured by the long rule of British Raj, which can be seen
as a classic example of positive
school of jurisprudence in India, the Constitution makers took the effort to
constitute a legal and administrative
system which will strive for the welfare of the state and its subject rather than just act as a supreme authority
capable of commanding without being worried of
national interest and opinion.
The post-independence era shows the emergence of sociological school
inference to the newly constructed modern Indian legal system, the draft committee ruled the provisions of the Indian
Constitution in such a manner
that will aim to attain the goal of social
welfare and any act done by the state shall be
judged on its capability of aiding to the creation of a welfare state.
Even though the idea of social welfare was ingrained in the newly
constructed constitution, there were
no such direct reference to the same, and which somehow led to the very famous atrocities imposed by the state during the Emergency. People
suffered by the unrestricted power
given to the state during the declaration of emergency and hence several
steps were taken to held the state accountable for its acts and provisions and powers of state during
the emergency were relaxed. It is the outcome of the
emergency that the term “Socialist” was added in the constitution and the preamble declared India as a Socialist
country and hence the Indian administrative and legal
system adopted the concept of Sociological
School of Jurisprudence.
And as propounded by the Pounde, the Indian judiciary and judges adopter
the concept of ‘social
engineering’ and the officers of the court started adopting
the role of ‘social engineers’, where social engineering is aimed at building a society as
efficient as possible in which wants of
maximum are satisfied with minimum of friction and waste13 and hence
introduced the concept of PIL i.e.,
Public Interest Litigation. PIL henceforth, opened a path for judicial activism. The judicial innovation of PIL
as a tool to enable access to justice defined a new chapter in the evolution of the Supreme Court as a central
player in people’s
lives.14
ADAPTATION OF SOCIOLOGICAL SCHOOL OF JURISPRUDENCE BY JUDICIARY IN INDIA
For past few decades the Supreme Court has shown a discernible approach
for the adaptation of sociological school of jurisprudence in its
findings in several cases,
In Ashok Kr Gupta & others vs State of Uttar Pradesh15
it was held that this court is not bound to accept an interpretation which retards the progress or impedes social integration.
In the case of Union of India
& Anr v Raghubir Singh16 the court held that This need for adapting the law to new urges in society
brings home that truth that the life of the law has not been logic, but it has been experienced. The law is forever adopting
new principles from life at one end and "sloughing off" old ones at the other.
The court here observed that the aspect of the social conduct and
experiences of the ages has to be considered while determining and
framing the new laws and norms.17
13 Deva
Prasad,”Law and Social Transformation in India through the lens of Sociological
Jurisprudence” : (2011) PL January 24
14 Malcolm
Langford, “Social Rights Jurisprudence: Emerging Trends in International and Comparative
Law.” (2008). United Kingdom: Cambridge University Press.
15 (1997)
5 SCC 201
16 (1989)
2 SCC 754
17 Arunesh
Bhardwaj & Anshika Agarwal, “INDIAN LAW EMBRACING SOCIOLOGICAL JURISPRUDENCE:
A DETAILED
STUDY,”
International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212 Vol
2 Issue 3
The Court in Bandhowa Mukti Morcha
vs Union of India18,
held that the Court should abandon
the Laissez Faire approach in the judicial process particularly where it
involves a question of enforcement of fundamental rights
and forge new tools, devise new method and
adopt new strategies for the purpose of making fundamental rights
meaningful for the large masses of people.
In Sarla Mudgal v Union of
India19, the court
embracing the concept of Sociological Jurisprudence said that marriage
celebrated under one personal law cannot be dissolved by application of any other law. This observation matches up with
the concept of Pound wherein he
said that in case of conflict between interests, the interest of same plane
will be weighed together.
These cases clearly show the adaptation of sociological school in the
approach of judiciary. Justice Krishna
Iyer exhorts judges
not to act by hunch but on hard facts and concrete
realities since the rule of law stemmed
from rule of life. Since law is a social
science, judges would not depend only on abstract principles or
rigid legal cannons alone but on social circumstances, demands and needs of
time.20
But is it the end? The question arises, if the principles of sociological
school of jurisprudence is the final foundation on which the Modern Indian
legal system will work, or the evolution
of the same is still at its infancy.
The answer lies in the approach of the judiciary adopted in creating its
precedent. Ever since the nation
got the Independence and Indian
Judiciary has been bestowed with the responsibility to uphold the principles of the constitution, it has been
working in a way to create a harmony between
the modern legal principles and the principles laid down by the ancient Indian Jurisprudence, and for that matter even before Independence, the theories of the ancient
Indian jurisprudence has been considered several times to attain the justice or arrive at the best suited judgement for the Indian citizen.
18 AIR
1984 SC 802
19 (1995)
3 SCC 635
20 Prof.
B. Hydervali, NLUO, “SOCIOLOGICAL PERCEPTIONS OF LAW”, An MHRD Project under its
National Mission on Education through ICT (NME- ICT), MHRD, Govt. Of India
In G. S. Manju W/o P. Ajith Kumar V K. N. Gopi @ Gopinathan Pillai and
others21, the Kerela
High Court quoted Kurma Purana, Manusmirti, Holy Quran and Holy Bible, to show the duties of children towards
their parents, the Hon’ble High Court stated
that “These religious values
are universal values
acknowledged and encompassed in all civilized society or class.”
Again in Karnail Singh and others V State of Haryana22, the court while giving refence
of the book "Sacred Animals of India", written by Nanditha Krishna, quoted that “The Yajur Veda says that
service to animals leads to heaven: 'No person should kill animals helpful to
all and persons serving them should
obtain heaven.' According to the Atharva Veda, the earth was created
for the enjoyment of not only human beings but also for bipeds and quadrupeds, birds,
animals and all others creatures. The emergence of all life forms from
the Supreme Being is expressed in the Mundakopanishad from Him, too, gods are produced manifold,
The celestials, men, cattle,
birds.”
21 2019 Indlaw KER 2695, 2019 (4) KLT 634
5(i) The Kurma Purana, one of the Eighteen
Mahapuranas and named after the tortoise avatar of Vishnu prescribes :
"No Deva can equal the mother and no superior
can equal one's father. Hence, no son can get relieved of the debt he owes to them."
[Kurma Purana 2.12.36]
5(ii) In Manusmriti, 2/227, it is given that, "Parents
who give birth and rear children face agony that cannot be overcome in a
hundred years. Therefore, the father, mother and teacher must always be kept
happy and content through care and service. This is important to attain truth
and success in life."
5(iii) In Holy Quran, in chapter 2-83 (Al-Baqarah), duty
is enjoined upon believers to do good deeds to parents. In chapter 46-15
(Al-Ahqaf), it is mentioned, "And We have enjoined upon man, to his
parents, good treatment. His mother carried him with hardship and gave birth to
him with hardship, and his gestation and weaning [period] is thirty months. [He
grows] until, when he reaches maturity and reaches [the age of] forty years, he
says, "My Lord, enable me to be grateful for Your favour which You have bestowed
upon me and upon my parents and to work righteousness of which You will approve
and make righteous for me my offspring. Indeed, I have repented to You, and indeed,
I am of the Muslims."
5(iv) In the Holy Bible, the tenth book of New
Testament, Ephesians, chapter 6, verses 1-3, prescribes :
"Children, obey your parents in the Lord, for
this is right. Honor your father and mother, which is the first commandment
with a promise, that it may go well with you and that you may enjoy long life on
the earth". [Ephesians 6:1-3]
22 2019 Indlaw PNH 1659, 2019 (3) RCR(Criminal) 396
These ideas led to the concept of ahimsa or non-violence. Much later, the Manusmriti says, 'He who injuries innocent beings with a
desire to give himself pleasure never finds happiness, neither in life nor in death.
In National Insurance Company
Limited V Bapu Khan23 “The
practice judging the truthfulness or
credibility of a witness by examination not only his statement but also his demeanour and body language have always
been recognized from past both in India and abroad.
Perhaps it may not be out of place to mention that even in Manusmriti a
reference is there to that
effect in 26th verse
in the 8th Chapter. It goes as follow:
(what is there
in the mind of the witness is understood by his guesture, tenor, efforts, words
and change in the
colour of eyes and face.)”
In Ramendra Shah S/o Ram Swaran Shah V Shew Ram Shah and others,24
court stated that “If any reference
is necessary one can take recourse to verse 26 of Chapter VIII of the Manusmriti which goes as follow:
(The feeling lying in the mind of the witness has to be
understood by studying his body language, exchequer, style of dialogue, change of colour
of eyes and face etc.)”
In United Riceland Limited and
Another V State of Haryana and Others25 the Punjab & Haryana
High Court while mentioning the duty of payment of tax on sale, stated
“In India also, the
existence and
inception of system
of taxation is
referred to by
Manu in his Manusmriti which prescribes how a duty is to be imposed
on the transaction of sales.
Manu even acknowledged the existence of sales
tax as did Kautilya also.”
The reason to refer aforesaid cases shows that how time and again the
judiciary had recourse to the ancient
texts in its judgement to give a socially acceptable verdict. These references make
23 2015
Indlaw GUW 696, 2016 (4) GauLR 627
24 2015
Indlaw GUW 79, AIR 2015 GAU 80, 2015 (2) GauLR 477
25 1995
Indlaw PNH 198, 1996 (114) PLR 227, 1997 (104) STC 362
the study of Indian jurisprudence much more important than the status it
has been given in todays legal studies of Indian Law and legal system. The refence has been made for vide range of subjects and as against the general
notion of being the Indian jurisprudence only having importance in personal matter, the reference has been made on
variety of subjects including crime and criminal procedure, taxation, debts, and many
more.
It is also been emphasized by several Indian scholars that teaching of
jurisprudence in India within law
schools does not meet any of the basic tests of need or utility, as these ideas
are of no use or of ground realities,
as these ideas are oblivious to the actual Indian situation. According to them, the philosophy of law
tradition from John Austin H.L.A. Hart to Joseph Raz needs to be toppled
Indian philosophies of Law, rather,
should look to reflect the real ideas
and best practices of the Indian people. Indian jurisprudence should be
Indian in Origin, in content, in application it should be sui generis and not
only merely borrowed or derivative.26
In a recent
conference, Supreme
Court Justice S Abdul Nazeer
said “the surer yet arduous
way to free administration of justice in India from the colonial
psyche is to teach law students about
ancient yet advanced
legal jurisprudence. He said the legal norms developed by great personalities like Manu, Kautilya,
Brihaspati and others
were worth studying
and emulation.”27
CONCLUSION
The concept of law in Indian jurisprudence, if not entirely but more than
partially, different in its
approach as against the western approach. The Indian legal jurisprudence has
undergone a series of changes, and
various thinkers and legal experts tried to co-related the principles followed in Indian Jurisprudence by
evaluating the trend and approach of state and its judicial system. However, the Indian society has
been a very as compared to western society and the situation still
persists even after an era of
ongoing globalization.
Though the current approach of judiciary and the state uphold the social
mandate and its welfare as supreme, it cannot be said that it is following exact sociological school of Jurisprudence as propounded by Roscoe
Pound. Where the theory of the American Jurist
Roscoe Pound is mostly based on upholding the rights of the individual
and balancing the conflict of interest of state and
society.
26 Supra 10.
27 Must
teach ancient Indian jurisprudence, throw out colonial law system: Nazeer, Published
by Dhananjay Mahapatra, The Times of India, TNN, Dec 27, 2021, 04:49 IST
It can be said that the current approach of the Indian judiciary is based
on the protecting individual rights
and creating a balance of conflicting interest between state and society as established under sociological school of
jurisprudence, by also making an effort to uphold the principles of duty of individual towards other individual and
the state as laid down in the ancient Indian jurisprudence.
Hence the hypothesis of the author remains
partially proved and partially disproved.
Reference:
H.L.A. HART,
The Concept of Law, Third edition, Clarendon Law Series, edited by Paul craig
Aakash Singh
Rathore and Garima Goswamy, Rethinking Indian Jurisprudence: An Introduction to
the Philosophy of Law, published by Routlege,
Prof Dr. Mukund
Sarda and Basim Akhtar, Concept of Dharma, Justice and Law: A study, Bharti Law
Review, Jan – March, 2017
Wesley Newcomb
Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, The Yale
Law Journal , Jun., 1917, Vol. 26, No. 8 (Jun., 1917), pp. 710-770; Published by:
The Yale Law Journal Company, Inc.
Marmor,
Andrei and Alexander Sarch, "The Nature of Law", The Stanford
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published Sun May 27, 2001; substantive revision Thu Aug 22, 2019;
Prof. Dr. Mukund
Sarda and Basim Akhtar, CONCEPT OF DHARMA, JUSTICE AND LAW: A STUDY, Bharati Law
Review, Jan – Mar, 2017,
Shantanu Rathore,
Dharma and law; Symbiosis Law School, Noida, Academike; Published on May 13,
2015;
Raj Vardhan
Tiwari, ANCIENT INDIAN JURISPRUDENCE, by Justice Markandey Katju, Judge,
Supreme Court of India, Speech delivered on 27.11.2010, Banaras Hindu
University, Varanasi, published on academia.edu
Deva Prasad,
Law and Social Transformation in India through the lens of Sociological Jurisprudence:
(2011) PL January 24
Arunesh
Bhardwaj & Anshika Agarwal, INDIAN LAW EMBRACING SOCIOLOGICAL JURISPRUDENCE:
A DETAILED STUDY, International Journal of Law and Legal Jurisprudence Studies:
ISSN:2348-8212 Volume 2 Issue 3
Article Information
CONCEPT OF LAW AND EVOLUTION OF THE INDIAN JURISPRUDENCE BY: ROSHNI SINGH
Authors: ROSHNI SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/24
- Issue 7
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