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RECKONING WITH THE PAST: ANCIENT HINDU LEGAL LITERATURE IN THE MODERN COURT
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RECKONING WITH THE PAST: ANCIENT
HINDU LEGAL LITERATURE IN THE MODERN COURT
AUTHORED BY - YASHWARDHAN SINGH
Introduction
The Story of India’s legal history is
a lengthy and complex one. Despite the difficulties in tracing a definitive
timeline, some historians believe that the earliest legal scriptures can be
dated to as far as the 2nd millennium BCE. These scriptures and laws
revolved around the central concept of ‘dharma’ and acted as pillars for public
peace and advancements. Only a small fraction of this entire body of legal
literature has withstood the test of time, yet even that portion that has
survived is rather substantial.
Originating from the sutras and
smritis, the early Hindu law is broadly classified under the ‘Vedic age.’ This
law lay emphasis on the ideas of social welfare and explained elaborate rules
for governing society, religion, domestic duties, and relations between members
of society[1].
The earliest of these works are the Dharmasutras which provided a manual for
human conduct and spoke of the relation of man to the state. This entire
tradition of Dharmasutras and Dharmashastras, which include earlier and later
writings respectively, contains several smritis which were written by learned
Sanskrit scholars and laid down formulated and formal codes for the
preservation of ‘dharma.’ The Manusmriti, also known as the Manav Dharmashastra[2],
was one of the most significant and reputable legal scriptures used in Hinduism
alongside other notable ones such as the Yajnavalkya Smriti and the Brihaspati
Smriti.
The Gujarat High Court, despite having
witnessed the passage of millenniums since the conception of the Manusmriti,
has decided to invoke it to arrive at a judgment in the recent past. Justice
Samir Dave, after hearing the plea of a 16 rape survivor seeking to terminate
the resultant pregnancy, made the following oral observations.
“Because we are living in the 21st
century...Go and ask your mother or great grandmother, they will tell you that
in the past, 14 to 15 years was the normal age for girls to marry. By the time
they (girls) attain 17 years of age, they would deliver at least their first
child,”. “Girls get matured much before than boys. It is mentioned even in
Manusmriti. I know you may not but at least for this, you must read it,” the
judge added.
Against the backdrop of these events,
the place of the Manusmriti in today’s legal landscape poses a tricky question
and necessitates a revisit to the ancient legal document. This article aims to
analyse the Manusmriti alongside other notable works in light of modern values
to decipher whether it is a piece of timeless wisdom or outdated beliefs.
Guidepost for Subsequent Social Order
Law and judicial proceeding,
alongside various other fields, experienced tremendous developments in ancient
India. Works such as the Manusmriti lay down over 2500 codes and go into great
depths when establishing the jurisdiction, titles of the law, and role of the
state and the king in delivering justice. The fact that these codes laid down
in the Manusmriti continued to influence subsequent laws made in the Mughal and
the British Empire (where the laws of the Manusmrtiti were reinstated
unchanged) is a testament to the advanced and sophisticated nature of ancient
Hindu legal legislature. Several other South Asian nations including but not
limited to Burma, Thailand, Cambodia, and Indonesia also took inspiration from
the Dharmashastras to lay the foundations of their legal principles.
These fundamentals of legal principles,
in the Dharmashastras, lay down a detailed structure spanning through several
writings. The Manusmriti, in the initial chapters, gives the concept of a
plaintiff and a defendant and who can bring a suit to the court. The
Yajnavalkya then describes how a case proceeds. After the filing of the case,
the documents are the first thing that is taken into consideration. The court
required these documents to be precise, detailed, and authentic with the
signatures of the witnesses. Then the witnesses were examined. These witnesses
were supposed to be religious, generous, and descendants of a good family. The
Brihaspati Smriti gives the minimum number of witnesses was three, but it is
suggested that nine, seven, five, four, three or even two witnesses were
sufficient, provided they were learned Brahmans. But a single witness should
never be entertained[3].
The witnesses played a key part in the trial process and were considered to
have more weight than documents in all the smritis. The trials were divided
into 18 categories to avoid confusion and delays which were further bifurcated
into civil and criminal trials by the Brihaspati Smriti[4].
The bifurcations are as follows - The fourteen titles of law, according to him,
comprised money lending, deposits, invalid gifts, concerns of partnership,
non-payment of wages, non-performance of service, disputes about land, sale
without ownership, rescission of sale and purchase, breach of contract,
relations between husband and wife, theft and inheritance as well as gambling.
These fall within the purview of civil law. On the other hand, the four titles of
law comprising the two kinds of insult (parushya), violence (sahasa) and
criminal connection with another’s wife spring out of injury to others were
within the domain of criminal law[5].
This division of jurisdiction along with some revolutionary trial procedures
shows how progressive and streamlined the legal system was in ancient India.
Continuing
the narrative of progressive endeavours, both the Brihaspati Smriti and the
Yajnavalkya Smriti mention the existence of several courts which varied in
importance[6].
This system provided for lower courts that served as the first step in
delivering justice. Appeals against the judgements of these courts could be
taken up to higher courts if the subject of their matter was valuable. The
highest court at the time was the King’s court where all matters were heard by
a committee that embodied the idea that ‘multiple brains make better judgement than one’. This
committee was called a Sabhya. How it worked was that besides the king, who is the fountainhead of
justice, the court of justice consists of members appointed by the king to
assist him (valkya). The premise behind this was that “The king can shoulder
the greater responsibility of administration of justice if he is attended by
good assessors.” The Yajnavalkya sets
forth that the king should appoint as members of the court of justice such
persons, who are possessed of Vedic learning and study, who know dharma or
law, who are the speaker of truth and who are impartial to friend and foe
(valkya). However, the power to give the final verdict was always in the hand
of the king. Yajnavalkya has not given the number of sabhyas to be appointed by
the king[7][8]. The Manusmiriti mentions
that sabhya is formed by three Br?hma?as, well versed
in Vedas, and one
learned Br?hma?a appointed by the king. A learned Brahmin could even be
appointed by the king to take charge of a day’s judicial proceedings to avoid
backlogs and delays.
Pertinence of Ancient Hindu Laws
Upon a superficial reading of Ancient
Hindu law scriptures including the likes of the Dharmashastras, what jumps out
is that these texts are built on the foundations of discrimination with the aim
of preserving social hierarchy. The laws contained in these writings reinforce
all forms of birth-based inequalities by reducing one’s social status and
individuality to their caste, race, and gender. These caste boundaries are also
portrayed to be inescapable.
Thus, even though texts such as the
Manusmriti provide an extremely detailed and intricate structure, they build on
a bedrock that itself has been rendered obsolete over the years by society.
Concepts such a equality before the law and fundamental rights which are
cardinal to the modern idea of law find no space in the vast expanse of ancient
Hindu law. The very first chapter of the Manusmriti bolsters these ideas and
sets the tone for what to expect from the remaining voluminous text. It states
that “For the growth of these worlds, moreover, he (the Creator) produced from
his mouth, arms, thighs and feet, the Brahmin, the Kshatriya, the Vaisya and
the Sudra”[9].
The discrimination starts from the very moment of one’s birth as the infants
are given threads to wear that demarcate their place in the hierarchical social
arrangement. The Brahmins, Kshatriyas, and Vaishyas (also known as the
twice-borns) received threads of varying quality while the Shudras (the
once-borns) were excluded from these rituals[10].
The names given to these infants were also in accordance with their roles in
society. Shlokas 30 to 32 of chapter 2 of the Manusmriti states that ‘For the
Brahmin, the name should connote auspiciousness; for a Kshatriya, strength; for
a Vaisya, wealth and for a Sudra, disdain…’[11].
These employment opportunities were also governed by caste hierarchies where
the Shudras were by law mandated to do ‘unclean’ work and were thus subject to
contempt and hatred. Chapter 8, shloka 410, says, “A
king should make Sudras engage in the service of twice-born people”[12],
and shlokas 413, 414, say “the Sudra was created by the
self-created one solely to do slave labour for the Brahmin. Even when he is
released by his master, a Sudra is not freed from his slave status for that is
innate in him; and who can remove it from him?”[13]. Chapter
8, Shloka 129: “Even a capable Sudra must not accumulate wealth; for when a
Sudra becomes wealthy, he harasses Brahmins.”[14]
The punishments were also brutal at the time and were decided based on one’s
caste. According to the Shlokas, if a ‘once-born’ man aggressively instructed
or insulted a ‘twice-born’ their tongues could be cut off while if the roles
were reversed it elicited no punishment[15].
The fines also varied for different castes. These examples are small scratches
on the surface when it comes to the number of Shlokas that perpetrate the caste
hierarchies. The nature of punishments was also extremely cruel which is a
trend that is now changing. In those times, capital punishment could be
pronounced for offences as small as stealing. Today’s punishments are in
striking contrast to these times as now the belief in the idea of a ‘second
chance’ and ‘repentance’ has reduced the severity of the punishments.
Shlokas concerning women’s rights and
upliftment are also few and far between in the smritis. The Manusmriti
throughout its course goes against the notion of giving women any right to her
life, her body, or her property. Chapter 5, shlokas 148, 149 states that “Even
in her own home, a female – whether she is a child, a young woman, or an old
lady – should never carry out any task independently. verse 9(3) of the
Manusmriti, which when translated into English says about a woman, “The father
guards her during virginity, the husband guards her in youth, the sons guard
her in old age; the woman is never fit for independence.”[16] The
Manusmriti also does not grant women the prerogative to exercise autonomy over
their own bodily rights as they are depicted as objects of sexual satisfaction
for men. This is enough evidence to establish the fact that the Manusmriti is
not the most ideal instrument to define women’s rights as was done by Justice
Dave in the High Court judgement. This has also been outlined by the Supreme
Court time and time again in judgements such as the Sabrimala judgement or the
Suchitra Srivastava judgement where the Court dealing with reproductive health
specifically said that “there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman’s right to refuse
participation in sexual activity or alternatively the insistence on use of
contraceptive methods.” Thus to pronounce a judement saying that abortion in
the case of a rape survivor because ‘girls in older times used to be married at
14 or 15 and had children by 17’ could be seen as a view divergent from the
Apex Court’s.
On the 25th of December in the year
1927, Dr. Ambedkar set fire to the Manusmriti. This day is observed in dual
reverence as Manusmriti Dahan Din and Stree Mukti Din. To allude to the
Manusmriti as a foundation for women's rights would stray from the principal’s
enshrined by the Indian Constitution and also begs the question of where
personal biases such as religion of the judges might tend to overpower their
oath to the country. Such jurisprudence which might find roots deep inside one
religion, some practices of which we consciously chose to leave behind in
stride for equality and empowerment, could potentially prove to cause injustice
keeping in mind the modern landscape of law. Having the apex defender of rights
resort to a subjective view of the law tinted by the lens of their religion
also might dampen the credibility of the historically illustrious institutions.
These laws reflected the ideologies
prevalent in the Vedic age. I believe the power of creating the laws was
misused by the Brahmins and the Upper-classes. What they created was not the
law that ought to be but one that protected their social status and power. They
used the law as an instrument to exercise undue influence over helpless people
who had no way of escaping the vicious cycles of poverty and impotence.
Conclusion
In conclusion, the ancient Hindu law
literature is a sophisticated and nuanced body of writing that paints a
comprehensive picture of Indian civilization at the time. It stands out for its
depth and intricate structure and reflects the ideologies prevalent in India in
the Vedic age. However, as advanced and ground-breaking as it might be, it
served the purpose of preserving the discriminatory social order where
upper-caste men used it as an instrument to maintain their monopoly over
honourable jobs and valuable resources. Since then, with an upsurge in
education and awareness and through the views of several modern
revolutionaries, we as a society have shifted the ideals of social order from
subjugation to freedom and from discrimination to inclusion. This paradigm
shift has brought with it the concepts of human rights, fair opportunities,
propulsion of growth for all and meritocracy. These concepts unfortunately
found no place in the Manusmriti. Thus reading the ancient text to pronounce
judgments today would be taking a leap backwards on this lengthy road to
justice.
It is extremely important to
appreciate the tremendous contributions of the Dharmashastras to India’s
intellectual and cultural history but not while turning a blind eye to its
problematic aspects. We need to understand that the times then were different
from ours where equality eluded reality and that such vestiges of the
traditional world order must not be allowed to plague today’s social order.
[1] Visheshwar Dayal Kulshreshtha and
Sumeet Malik, V. D. Kulshreshtha’s Landmarks in Indian Legal and
Constitutional History (12th edn., Eastern Book Co 2019) pp 4–6.
[2] Pranshu Vats, ‘Manu’s Laws and
Social Order’ (legalserviceindia.com) <https://www.legalserviceindia.com/legal/article-9786-manu-s-laws-and-social-order.html>.
[3] Visheshwar Dayal Kulshreshtha and
Sumeet Malik, V. D. Kulshreshtha’s Landmarks in Indian Legal and
Constitutional History (12th edn., Eastern Book Co 2019) pp. 4-6
[4] ‘Administrative and Institutional
Structures’ <https://egyankosh.ac.in/bitstream/123456789/22029/1/Unit-17.pdf>
accessed 26 April 2023.
[5] Ibid., 5
[6] Visheshwar Dayal Kulshreshtha and
Sumeet Malik, V. D. Kulshreshtha’s Landmarks in Indian Legal and
Constitutional History (12th edn., Eastern Book Co 2019) pp. 4-6
[7] Kalita Nabanita, Yajnavalkya-Smriti
(Vyavaharadhyaya)—Critical Study (2017).
[8] Yajnavalkya and others, Yajnavalkya
Smriti : With the Commentary of Vijnanesvara Called the Mitaksara : And Notes
from the Gloss of Balambhatta. (Ams Press 1974).
[9] Lawgiver Manu and Patrick
Olivelle, The Law Code of Manu (Oxford University Press 2009).
[10] Ibid., 11
[12] Ibid., 11
[13] Ibid., 11
[14] Ibid., 11
[16] Lawgiver Manu and Patrick
Olivelle, The Law Code of Manu (Oxford University Press 2009).
Article Information
RECKONING WITH THE PAST: ANCIENT HINDU LEGAL LITERATURE IN THE MODERN COURT
Authors: YASHWARDHAN SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/02
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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