Aspects of Hindu law in India
Aspects of Hindu law in India
Hindu law is largely based on the Manu Smriti (smriti of Manu). It was recognized by the British after their rule of India but its influenced largely waned after the establishment of the Republic of India, which is secular. Hindu law in its current usage refers to the system of personal laws (i.e., marriage, adoption, inheritance) applied to Hindus, especially in India. Modern Hindu law is thus a part of the law of India established by the Constitution of India (1950). The substance of Hindu law implemented by the British was derived from early translations of Sanskrit texts known as Dharmaśāstra, the treatises (śāstra) on religious and legal duty (dharma).
Classical Hindu law, brings the realm of legal practice together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a usable label for myriad localized legal systems of classical and medieval India that were influenced by and in turn influenced the Dharmaśāstra tradition.
LAWS OF MANU:
A major piece of the Hindu law tradition is, however, not represented in the main body of this translation, but rather in its footnotes - namely, the commentarial or scholastic tradition that took texts like the Laws of Manu and explained and elaborated upon them in an unbroken tradition that extended at least up to the time of the British and in some ways beyond. Similar to other scholastic traditions of religious law, the Dharmaśāstra commentators' first concern was to explain the sacred legal texts precisely, with careful attention to word meanings, grammatical structures, and principles of legal hermeneutics.
Effectively, the three ideal sources of dharma reduce to two - texts and the practiced norms of people who know the texts. It is the latter category that gave Hindu law a tremendous flexibility to adapt to different temporal and geographic contexts.
Classical Hindu Law in practice
There is frustratingly little evidence for the practice of law in India prior to about the eighteenth century in India. In some regions, such as Maharashtra, a kind of hybrid Hindu and Islamic legal system was fashioned under the Maratha kings (Gune 1953). In other places, such as South India, temples were intimately involved in the administration of law (Davis 2004).
Aspects of Anglo-Hindu Law:
The early period of Anglo-Hindu law (1772-1864) was characterized by three main features: 1) the collection and translation of important Dharmaśāstra texts by British administrator-scholars such as Jones, Colebrooke, Sutherland, and Borrodaile for the purpose of "applying" the rules of those texts to Hindus under the expanding political rule of the British, 2) the presence of court pandits in various levels of British courts to aid British judges in interpreting the classical Hindu law on issues brought before the courts, and 3) the proliferation of case law resulting from judicial decisions in these courts that resulted eventually in the "redundancy" of court pandits.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India (Rocher 1972 and Galanter 1989). The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
Aspects of Modern Hindu Law:
With the formal independence of India from Britain in 1947, Anglo-Hindu law and the other major personal law system of the colonial period, the so-called Anglo-Mohammedan law (Islamic law), came under the constitutional authority of the new nation. In the early 1950s, contentious debates ensued over the so-called Hindu Code Bill, which had been offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo-Hindu law. In the end, a series of four major pieces of legislation were passed in 1955-56 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of modern Hindu law.