The Hindu jurisprudence or the legal system (Vyavahara Dharmasastra) is embedded in Dharma as propounded in the Vedas, Puranas, Smritis, etc. Dharma pervades throughout the Hindu philosophical thought, and the Hindu social structure. Law is, in this sense, considered as a branch of Dharma.
Dharma
It is most difficult to define dharma. For the students of law, it may suffice to say that dharma signifies the sum total of religious, moral, social and legal duties. However, the expression is of very wide import and includes in its ambit the aggregate of rights, duties, and obligations- moral, social and legal. When it is said that it is the dharma of the sons to look after their aged parents, it means duty; when it is the dharma of a debtor to repay the debt to the creditor, it means a legal as well as pious obligation. When it is said that dharma is necessary for the peace and prosperity of the people the word dharma in this context means law.
According to Dr. Sarkar, the dharma connotes five different sense –
(i) It means religion,
(ii) It means virtue as opposed to sin or vice,
(iii) It means law,
(iv) It means justice, and,
(v) It means duty.
The dharma is not confined to positive civil law, but includes moral, religious, social and domestic rules of conduct in addition to the legal rules for governing the life of the persons. Dharma is created for the well-being of all creation. All that is free from doing any harm to any created being is dharma, for, dharma is created to help all creations, free from any harm. Dharma is so called because it protects all, dharma preserves all that is created.
When the word dharma is used in the context of duties and powers of the king it means constitutional law or rajdharma. Rajdharma conferred power on the king to enforce obedience to vyavahara-dharma (legal rules) through the might of the State. The law aided by the power of the king enables the weak to prevail over the strong.
The first and foremost duty of the king as laid under rajdharma was to rule his kingdom in accordance with law, so that the law reigned supreme and could control all human actions so as to keep them within the bounds of law, though dharma was made enforceable by the political sovereign, the king, it was considered and recognised as superior and binding on that sovereign itself. Thus under the Hindu constitutional law (Rajadharma), kings were given the position of the penultimate authority functioning within the four corners of dharma, the ultimate authority. The king was only the Chief Magistrate of the realm but was never considered the source of law.
Varnadharma
Hindu society was classified in four classes or varnas: Brahman, Kshatriya, Vaishya and Sudra. An individual was placed in a class in accordance with his innate qualities and deeds. Thus, varnas are based on dharma. This classification is correlated with the duties of each varna.
The dharma of the four classes is as follows: teaching, self-control and tapas are the duties of the Brahmanas; protecting people, performing sacrifices are the duties of the Kshatriyas; study, making gifts, acquiring wealth by fair means are the duties of the Vaishayas; and to serve the first three is the duty of the Sudras.
According to the Smritikars, the common dharma (duties) for all the four classes are: abstention from injury to any living creature, pursuit of truth, abstention from taking unlawfully what belongs to another, purity of conduct and life, self-restraint, generosity, etc.
Ashrama dharma
The span of individual’s life is based on ashramas. The individuals life is organised into four ashrama. The ashrama dharma is based on the purushartha, individual’s striving to attain the ultimate ideal-the salvation. These pursusharthas are four: dharma, artha, kama and moksha. Of these the dharma pervades throughout the four ashramas.
In the Brahamcharya Ashrama, dharma is the predominant purushartha. One learns dharma in all its aspects. In the Grahasthya Ashrama, dharma acts as a check upon artha and kama. In the Vanaprastha Ashrama and Sanyasa Ashrama also, one follow dharma mainly.
Yugdharma
Hindu law is considered as divine law. And being divine law, it is sacrosanct, inviolable and immutable. The word sacrosanct implies that Hindu law is a very sacred or holy law, a law to be looked with reverence, the validity of which cannot be questioned. The word inviolable implies that it is a law which cannot be violated, which cannot be changed. In short, it is a permanent law. The word immutable signifies that it is an unchangeable law which is valid for all time to come; it is an eternal law (Yugdharma). Dharma then is the principle which is capable of preserving the universe.
Definition of law
Law was recognised as a might instrument necessary for the protection of individual right and the liberties. Whenever the right or liberty of an individual was encroached by another, the injured individual could seek the protection of the law with the assistance of the king however powerful the opponent (wrong-doer) might be. The law as defined in Hindu jurisprudence meant that it was enforceable against individuals with the aid of the physical power of the king.
While in the western jurisprudence, the imperative command of the king constituted the law, under the Hindu jurisprudential concept, the law was a command even to the king and was held as even superior to the king. Thus, law is the ‘king of kings’.
Further, the law and the king derive their strength and validity from each other. The king remained powerful if he observed the law and the efficacy of law also depended on the manner in which the king functioned, because it was he who was responsible for its enforcement.
Rule of law and legal duties
It is said ‘Dharma protects those who protect it’. In this phrase, the entire concept of rule of law is incorporated. The rule of law in a Hindu society means that an orderly society would be in existence if everyone act according to dharma and thereby protect dharma, and such an orderly society, in turn protects the rights of individuals. Dharma regulate the individual’s conduct in relation to other members of the society. The society protect the individual through its social and political institutions. Thus, dharma regulated the mutual obligations of individual and the society. Therefore, protection of dharma was in the interest of both the individual and the society.
The smriti texts do not make any clear-cut distinction between rules of law and rules of morality or religion. In most of rules and institutions, ethical and legal principles have been woven into one fabric. For instance, marriage, adoption, debts and succession have both secular and religious aspects.
From the point of view of binding character, the Hindu jurisprudence does not make any difference between legal duties on the one side and moral and religious duties on the other. It is enjoined that all duties must be performed.
Crime and Punishment
Any act or omission in violation of the rules laid down in the Vedas or the vyavahara portion of the laws (i.e. civil and criminal laws) was considered as pataka (sin).
There existed very fine distinction between civil wrongs and crimes in ancient India. It is the duty of the State to punish a criminal as crime is an offence against the society. The result of a civil trial initiated for breach of contract or tort is compensatory in character, whereas the result of a criminal offence is penal in character i.e., the accused found guilty would be punished. Criminal law is the concern of the king. Liability in tort is the concern of individuals.
The power of king to inflict punishment on the wrongdoer was given the name of ‘danda’. The objects of inflicting punishments in ancient Hindu law were two-fold: (i) prevention of crimes by creating a terror or fear in the minds of persons by punishing them, and (ii) purification of the
culprit himself (by suffering a punishment the wrongdoer got himself purged of the offence and became pure). For all offences, women were given lighter punishment.
Sources of Hindu law
There are four major sources of ancient Hindu law:
(a) Srutis or Vedas- source of dharma (law).
(b) Smritis – modified substantive and procedural civil and criminal law.
(c) Digests and Commentaries – e.g., Commentaries on Manusmriti.
(d) Custom and Usage one of the dominating factors in the evolution of the Hindu Legal system.
Application today
Since Indian Independence fundamental changes have been made to evolve a secular society. The Hindu Law is today applicable only to personal and family relations, and secular laws apply to other relationships.