Hindu Law

In the Hindu cultural tradition, stretching over more than three millennia, dharma is the concept that is generally considered synonymous with law. Dharma is also more broadly and importantly rendered as moral obligation or righteousness, and more loosely as religion. As the moral foundation of the social order, dharma is an aspect of cosmological stability (rita), which in turn is comparable with natural law.

Traditionally, it was the king's duty (raja-dharma) to uphold the prevailing laws, to command, to protect, and, when necessary, to administer punishment (danda) for violations of established norms. The king had no legislative powers; his commands were divine commandments. He was guided by his advisers, who were Brahmans well versed in the laws available in the textual tradition comprising mainly the Dharma Sutras and the Dharma Shastras. The latter texts draw on the Vedas and ancient law books for appropriate behavior for each varna (social category) and for each stage of life (ashrama). They also provide guidance to “universal” laws (sādhārana dharma) that are binding on one and all. The most famous of the Dharma Shastra texts is the law book of Manu, Manusmriti (composed around the beginning of the Common Era).

The classical tradition of laws encountered a major challenge with the emergence of Muslim kingship in the subcontinent in the eighth century. Notwithstanding the pressure exerted on them by their advisers to apply Islamic laws to their non-Muslim subjects, Muslim kings generally refrained from doing so in civil matters. Various restrictions on the practice of their religion and nontraditional obligations toward the state (e.g., the payment of taxes, including the jizya in return for protection and exemption from military service) were, however, laid on them as the laws of the state.

Two hundred years of British rule (ending in 1947) saw significant developments in the scope and character of the laws under which the [Page 517]expanding category of Indian subjects were governed. To begin with, serious but misconceived attempts were made to codify Hindu (and Muslim) personal laws by disregarding a vast body of relatively fluid customary laws and going back to the Dharma Shastras, so that disputes pertaining to caste, family, property, and other civil and religious matters could be settled according to traditional norms. After 1858, when the British Crown assumed direct responsibility for governance in the subcontinent, the jurisdiction of traditional courts was rapidly narrowed, and a body of uniformly applicable commercial, criminal, and procedural laws was codified and applied. Personal laws were, however, left largely untouched.

Soon after independence, a series of enactments radically altered Hindu personal laws by discarding the shastric framework. Caste (varna, jati), sectarian, and regional distinctions were abolished; dissolution of marriage was permitted; and women (wives, widows, daughters) were granted rights of inheritance. Although much altered, the Hindu undivided family and its tax privileges remain intact. Local customs also are allowed some scope in contentious situations. A common personal law now prevails among all Hindus.