Legal and Constitutional History of India PDF

Legal and Constitutional History of India MODULE I.3.1 -Legal System in Ancient India  Vedic Age Dharma Origin of Dharma 1. Sruti 2. Smriti Dharmasutras and Dharmashastras a. Manusmriti b. Yajnavalkya Smriti c. Naradasmriti d. Visnusmriti e. Brihaspatismriti 3. Aacha...

Legal and Constitutional History of India MODULE I.3.1 -Legal System in Ancient India  Vedic Age Dharma Origin of Dharma 1. Sruti 2. Smriti Dharmasutras and Dharmashastras a. Manusmriti b. Yajnavalkya Smriti c. Naradasmriti d. Visnusmriti e. Brihaspatismriti 3. Aacharas (customary laws in practice)  Vedic Age-Concept of Dharma The main aim of the law in the Vedic period was to preserve ‘dharma’ which means righteousness and duty. The jurisprudence of Ancient India was shaped by the concept of `Dharma’, or rules of right conduct. Dharma is the Indian version of Natural law. In India, we have several sects, and each sect defines the concept of Dharma according to its own parameters. The concept of Dharma has been taken from the Sanskrit term, ‘dharm’ which signifies certain order by which society must function for the welfare of human beings and make the functioning of society possible. Dharma is primarily based on the Vedas and has many texts such as Sruti, Smriti and moral laws (sadachar). Dharma was a duty-based legal system that is every individual owed a duty towards another member of the society.  What is Dharma? “Dharma” is a Sanskrit term with a broad and complex meaning that cannot be precisely defined in any other language. It encompasses a wide range of concepts, including justice (Nyaya), moral values, pious obligations, righteous conduct, charity, natural qualities, duty, law, and constitutional law. In the Mahabharata's Shantiparva, when Yudhistira asks Bhishma to explain the meaning and scope of Dharma, Bhishma, who had mastered the knowledge of Dharma, replies that it is most difficult to define Dharma. He explains that Dharma is that which helps in the upliftment of living beings, and thus, whatever ensures the welfare of living beings is surely Dharma. Karna Parva- Ch.. 69 says “Dharma sustains the society, Dharma maintains the social order, Dharma ensures well being and progress of Humanity, Dharma is surely that which, fulfils these objectives.”  Vedic Age-Concept of Dharma According to Leon Duguit: “The only right which any man can possess is the right to do his duty”. His theory of Social Solidarity states that “even the sovereign or the state does not stand in any special position or privilege and its existence is justified only so long as it fulfils its duty.” According to Justice M. Rama Jois, “Dharma is that which sustains and ensures progress and welfare of all in this world and eternal bliss in the other world. The Dharma is promulgated in the form of command”. Madhavacharya said “It is most difficult to define Dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore that which ensures welfare (of living beings) is surely Dharma.The learned rishis have declared that which sustains is Dharma.” Dharma is anything that is right, just and moral and it aims for the welfare of the state and mainly, its people. It is nothing but body of practices and believes including in itself the religious rights, rules of conduct and duties.  What is Dharma? “Dharma was formulated as a solution for problems arising out of the six inherent enemies in Man, namely Kama (desire), Krodha (anger), Lobha (greed), Moha (passion), Mada (infatuation) and Matsarya (enmity). Manu Smriti brought ‘Dharma’ under five heads. Ahimsa(non-violence), Satya (truthfulness), Asteya (not acquiring illegitimate wealth), Shoucham (purity), and Indriyanigraha (control of senses) are, in brief, the common Dharma for all the varnas. The mere knowledge of the rules of Dharma, however, does not make a man 'Dharmishta' i.e., a man acting always in conformity with Dharma. Therefore, Dharma has to be ingrained in the mind of every individual from childhood. Adi Shankara in his commentary on Vedanta Sutra has explained “Sanskara is a process by which good qualities are generated and bad qualities are removed in an individual.” Thus, when knowledge of rules of Dharma and of Dharma abiding nature is ingrained in the mind of an individual, it acts as antigen against the six enemies inherent in him and always makes him conform to dharma.  What is Dharma? Rituals, obligation, morality, law, order, and equity were contained in dharma. Dharma regulated and guided the activities of every person in the society including the king. Mahabharata, calls upon the subjects to revolt against the autocratic and oppressive king who does not follow dharma. Some important types of dharma included Raj-dharma (obligation of kings or civil law); Apad-dharma (obligations during a crisis); Sadharana- dharma (responsibility of all people); Kula-dharma (responsibility within family); Varnashrama-dharma (obligations in compliance with one’s status, gender, and stage of existence); and Sva-dharma (an individual’s particular dharma). The word “rights” termed as “adhikara” in Sanskrit finds no mention in the Vedic literature.  Vedic Literature Vedic Literature Shruti Smriti Dharmasutra Dharmashast Vedas Brahmanas Aranyaka Upanishads 6 Vedangas Epics s ras Arthasashtra Puranas Kavyas Nibandhas Rig Veda Yajur Veda Sama Veda Atharva Veda  Origin of Dharma-Shruti’s I. Shruti What was heard’. Product of Divine Revelation. The first source of Dharma is Shruti. Shruti contains narration on everything possible ranging from military to politics to common people’s life. Shruti’s are transmitted verbally across the generations and fixed.  Origin of Dharma-Shruti’s I. Shruti Shrutis include the four Vedas. The Vedas existed in oral form and were passed down from master to student for generations until they were committed to writing between c. 1500 - c. 500 BCE (the Vedic Period) in India. According to Max Muller,Vedas date back to 1500 BCE. Shruti consists of Rigveda, Yajurveda, Samaveda, and Atharvaveda along with their Brahmanas,Aranyakas and Upanishads. Vedas primarily contain theories about sacrifices, rituals, and customs. Vedas do refer to forms of marriage, the requirement of a son, exclusion of women from an inheritance, and partition but these are not very clear-cut laws.  Origin of Dharma-Shruti’s Rig Veda is inscribed in tribute to deities. Yajurveda comprises hymns to perform Vedic sacrifices and rituals. Samaveda comprises melodies and chants. Atharvaveda which deals with magic, ghosts, tantra- mantra, superstition, medicinal properties of plants, etc. The Vedas are followed by Brahmanas which explains the Vedic hymns.  Shruti’s It is the text on rituals, ceremonies, sacrifices and symbolic sacrifices. Apart from spiritual cognizance, they include scientific knowledge like astronomy and geometry. The Brahmanas are followed by Aranyakas or forest books which were the texts to be read in the forest. They provide philosophical and meditative justifications for the Vedic sacrifices. The Aranyakas are followed by Upanishads. Upanishads are mainly philosophical-religious texts that constitute the Indian philosophy and delve deep into philosophical questions like cause and nature of the world, who we are, where do we go after this world, what is the purport of human subsistence, etc. In total there are 108 Upanishads. These texts serve as both religious sources as well as moral guide during the Vedic period  Vedas and the Law As per the Vedic texts, the rights of an individual emanate from the obligation of others and sometimes the social and prevalent rights supersede the rights of an individual. The resonance of high ideals of liberty, equality, and fraternity could be perceived in the verses of Vedic literature. According to the Rig Veda, Nobody is superior or inferior. They're all brothers. Everyone ought to work toward the common good and advance collectively. Let your resolutions, hearts, and minds be one. Rig Veda verbalizes those human actions and thoughts are diverse in nature and prays for noble intellectual thoughts to come to humans from all sides and spread across the universe. Rig Veda invokes deities to grant liberty of body, shelter, and life, resembling modern rights such as physical liberty, shelter, and life. Rig Veda makes calls for parity and unity of all.  Vedas and the Law Right to food and water Kishen Pattnayak V. State of Orissa (1989) PUCL V. UoI (2001) Koili Devi and ors V. UoI (2017) Maha Upanishad which verbally expresses the idea of ‘Vasudhaiva Kutumbakam’ Veda illustrates the concept of the well-being of all and wherein the sages are praying to deities to let everyone in the world be happy; let all be free from infirmities and disease; let all experience good; let no one be inundated by grief and suffering; let there be peace, peace, and peace. Land Rights Gender Rights Right to Education  Varna System in Ancient India The first mention of Varna is found in the Purusha Suktam verse of the ancient Sanskrit Rig Veda. The varnas have been known since a hymn in the Rigveda that portrays the Brahman (priest), the Rajanya (noble), the Vaishya (commoner), and the Shudra (servant). Different theories-segregation based on Varna (colour)---ability. The segregation of people was intended to ease the responsibilities of one’s life, preserve the purity of a caste, and establish eternal order. This would pre-resolve and avoid all forms of disputes originating from conflicts within business and encroachment on respective duties. Stephanie Jamison and Joel Brereton, professors of Sanskrit and Religious studies, state, “there is no evidence in the Rigveda for an elaborate, much-subdivided and overarching caste system”, and “the varna system seems to be embryonic in the Rigveda and, both then and later, a social ideal rather than a social reality”. Varna System as per Rig Veda Brahmin Rajanya Vaishya Shudra  Smriti Literature Dharmasutra s Dharmashast Arthashastra ras Epics Smriti Vedangas Upavedas Mahakavyas Puranas  Smriti’s The term ‘Smriti’ literarily means ‘as remembered’ and it refers to tradition. They are the humanly authored written texts that contain the collected traditions. With smritis, a systematic study and teaching of Vedas started. Smritis are a written record of the knowledge of the sages. Smritis lays down laws and religious teachings. The smritis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras).  Early smritis (Dharmasutras) The most important part of the book remains to be the discourse on Ācāra; ‘Vyavâhara and ‘Prâyaschitta’. Ācāra: Rules pertaining to daily rituals, life-cycle cites, and other duties of four castes or varnas. It refers to the customary laws or community norms of a particular social group. Vyavahāra: Rules pertaining to the procedures for resolving doubts about dharma and rules of substantive law that are categorized according to the standard eighteen titles of Hindu law. Prāyaścitta: Rules concerning expiation and penance for breaching the laws of dharma.  Vyavahāra According to Kātyāyana "Vi means ‘various,’ ava means ‘doubt,’ hara is ‘removal’. The legal procedure is called as vyavahāra because ‘it removes various doubts. According to Donald Davis,Vyavahāra has two meanings; 1. The first is a general sense of practice, business, or everyday transactions. 2. The other, specific sense is legal procedure, the processes of litigation including a trial.” According to Naradasmriti "When people only focused on dharma and spoke the truth, there was no need for legal procedures, no enmity, and no selfish conflict. Legal procedures began when people stopped following dharma."  Early smritis (Dharmasutras) Early smritis (Dharmasutras) Some of the important sages whose Dharmasutras are known are Apastamba, Baudhayan, Gautama, Harita,Vashistha, and Vishnu. Apastamba - His sutra is most preserved. He belonged to Krishna Yajurveda school from Andhra Pradesh. (Refer to https://www.wisdomlib.org/hinduism/book/apastamba-dharma-sutra/d/doc116233.html ) There are four castes--Brāhmaṇas, Kṣatriyas, Vaiśyas, and Śūdras. Amongst these, each preceding caste is superior by birth to the one following. To serve the other three castes is ordained for the Śūdra. Intercourse, eating, and intermarriage with Śūdra should be avoided by Brahmana. In the cases of men of other castes, the king, after having examined their actions, may punish them even by death. And the king shall not punish on suspicion. But having carefully investigated the case by means of questions addressed to witnesses and even of ordeals, the king may proceed to punish. A king who acts thus, gains both this and the next world.  Dharmasutra- Baudhayan Baudhayan - He belonged to the Krishna Yajurveda School and was probably from Andhra Pradesh. His work has mentions about marriage, sonship, and inheritance. He also refers to various customs of his region such as marriage to one’s maternal uncle’s daughter. (Refer to https://www.wisdomlib.org/hinduism/book/baudhayana- dharmasutra). He said there are four castes varṇa, viz. Brāhmaṇas, Kṣatriyas, Vaiśyas, and Śūdras. Males belonging to them may take wives according to the order of the castes, (viz.) a Brāhmaṇa-four, Kṣatriya-three, Vaiśya-two, Śūdra-one. He discussed inter-caste marriages and the formation of subcastes. According to him anybody but a Brāhmaṇa shall suffer corporal punishment for adultery. The wives of men of all castes must be guarded more carefully than wealth. He said women possess an unparalleled means of purification; they never become entirely foul. For month by month, their temporary uncleanness removes their sins. Soma gave them cleanliness, the Gandharva their melodious voice, and Fire, purity of all limbs; therefore, women are free from stains. A Brāhmaṇa who unintentionally approaches a female of the Caṇḍāla caste, eats food given by a Caṇḍāla or receives presents from them, becomes an outcast; but if he does it intentionally, he becomes equal to a Caṇḍāla.  Dharmasutra- Gautama Gautama - He belonged to Sam Veda School and deals exclusively with legal and religious matters. His work mentions inheritance, partition, and Stridhan. (https://www.wisdomlib.org/hinduism/book/gautama- dharmas%C5%ABtra) He declared that men of the several castes and orders who always live according to their duty enjoy after death the rewards of their works, and by virtue of a trace of their merit they are born again in excellent countries, castes, and families, endowed with beauty, long life, learning in the Vedas, virtuous conduct, wealth, happiness, and wisdom. Inheritance Sons divide their father’s estate after his death. The division can occur while the father is alive if the mother is past child-bearing and the father wishes it. Alternatively, the first-born may inherit the entire estate but must support the rest of the family. Dividing an estate: The eldest son gets an extra share, certain animals, a carriage, and a bull. Middle son gets additional animals that are one-eyed, old, hornless, or tailless. Youngest son receives sheep, grain, iron utensils, a house, a cart with oxen, and one of each type of other animals. The remaining property is divided equally among all sons. Eldest can receive two shares, others one share each.  Dharmasutra- Gautama Daughters and Female Inheritance: A father with no male heirs may appoint his daughter to raise up a son for him. That daughter becomes an appointed daughter by the intention of the father. Inheritance Without Male Heirs and No Appointed Daughter: Blood relations within six degrees, those with the same family name, or descendants from the same sage share the estate of a person who dies without male heirs or an appointed daughter. A widow may try to have a son to continue her husband’s lineage. A son born to a widow by someone other than her husband’s brother is excluded from inheritance. Women’s Property: A woman’s property goes to her unmarried daughters, and if none exist, to her poor married daughters. The sister’s inheritance fee goes to her uterine brothers if her mother is deceased. What a learned coparcener has acquired by his own efforts, he may at his pleasure withhold from his unlearned coparceners. A legitimate son, a son begotten on the wife by a kinsman, an adopted son, a son born secretly, and a son abandoned by his natural parents inherit the estate of their fathers.  Dharmasutra- Gautama Evidence: Witnesses must be trustworthy, impartial, and free from bias. They can be from any caste, including Śūdras, but a Brāhmaṇa should not be compelled to testify by a non- Brāhmaṇa unless explicitly mentioned in the case. Witnesses, except Brāhmaṇas, should swear an oath before gods, the king, or Brāhmaṇas. False evidence causes extensive harm, and witnesses can be reprimanded and punished for untruthfulness. Witnesses should speak only when asked and not individually. Failure to respond when asked is considered a crime. Truthful testimony is rewarded with heaven, while false testimony leads to hell. Specific punishments for false testimony vary depending on the subject, from small cattle to land and water, with severe consequences for each. Giving false evidence to save a life is generally not considered a sin, except in the case of a very wicked person. The king, judge, or a knowledgeable Brāhmaṇa should examine witnesses, and defendants must answer immediately in urgent cases. Speaking the truth in court is paramount.  Dharmasutra- Gautama Crime and Punishment A Śūdra who intentionally abuses twice-born men by criminal abuse, or criminally assaults them, shall be deprived of the limb with which he offends. If he has criminal intercourse with an Āryan woman, his organ shall be cut off, and all his property be confiscated. If he recites Vedic texts, his tongue shall be cut out. A Kṣatriya shall be fined one hundred Ancient Coins if he abuses a Brāhmaṇa. A Vaiśya who abuses a Brāhmaṇa, shall pay one and a half times as much as a Kṣatriya. But a Brāhmaṇa who abuses a Kṣatriya shall pay fifty. In disputed cases the truth shall be established by means of witnesses.  Dharmasutra-Vashistha Vashistha - He was from North India and followed the Rigveda school. He recognize the remarriage of virgin widows. (Refer to https://www.wisdomlib.org/hinduism/book/vasistha- dharmasutra/d/doc116390.html). There are four castes (varṇa), Brāhmaṇas, Kṣatriyas, Vaiśyas, and Śūdras. Three castes, Brāhmaṇas, Kṣatriyas, and Vaiśyas, (are called) twice-born. Their first birth is from their mother; the second from the investiture with the sacred girdle. Brāhmaṇas who neither study nor teach the Veda nor keep sacred fires become equal to Śūdras. The lawful occupations of a Brāhmaṇa are six, studying the Veda, teaching, sacrificing for himself, sacrificing for others, giving alms, and accepting gifts. The lawful occupations of a Kṣatriya are three, studying, sacrificing for himself, and bestowing gifts. And his peculiar duty is to protect the people with his weapons; let him gain his livelihood thereby. The lawful occupations of a Vaiśya are agriculture, trading, tending cattle, and lending money at interest,  Dharmasutra-Vashistha To serve those superior castes has been fixed as the means of livelihood for a Śūdra. Those who are unable to live by their own lawful occupation may adopt that of the next inferior caste, but never that of a higher caste. Truthfulness, suppression of anger, liberality, abstention from injuring living beings, and the procreation of offspring are duties common to all castes. To live according to the rule of conduct is doubtlessly the highest duty of all men. The Vedas do not purify him who is deficient in good conduct, though he may have learnt them all together, the sacred texts depart from such a man at death. Through good conduct man gains spiritual merit, wealth, beauty, and removes the effect of evil marks. A woman is not independent, the males are her masters. Their fathers protect them in childhood, their husbands protect them in youth, and their sons protect them in age; a woman is never fit for independence. A wife, though tainted by sin, whether she be quarrelsome, or have left the house, or have suffered criminal force, or have fallen into the hands of thieves, must not be abandoned; to forsake her is not prescribed by the sacred law. Let him wait for the time of her courses; by her temporary uncleanness, she becomes pure.  Dharmasutra-Vashistha Women possess an unequalled means of purification; they never become entirely foul. For month by month their temporary uncleanness removes their sins. Women belong first to three gods, Soma the moon, the Gandharva, and Fire, and come afterwards into the possession of men; according to the law they cannot be contaminated. They state that there are five mortal sins (mahāpātaka), violating a Guru’s bed, drinking (the spirituous liquor called) surā, slaying a learned Brāhmaṇa, stealing the gold of a Brāhmaṇa, and associating with outcasts, Either by entering into spiritual or matrimonial connexion with them. Three wives are permitted to a Brāhmaṇa according to the order of the castes, two to a Kṣatriya, one to a Vaiśya and a Śūdra. Some declare that twice-born men may marry even a female of the Śūdra caste, like those other wives, without the recitation of Vedic texts. Let him not act thus. As a consequence of such a marriage the degradation of the family certainly ensues, and after death the loss of heaven.  Dharmasutra-Vashistha Legal Proceedings Let the king or his minister transact the business on the bench. When two parties have a dispute, let him not be partial to one of them. Let him reason properly regarding an offence; finally the offence will become evident thereby. Persons unfit to transact legal business minors, widows, and so forth. But if a minor comes of age, his property must be made over to him. It is declared in the Smṛti that there are three kinds of proof which give a title to property, viz. documents, witnesses, and possession; thereby an owner may recover property which formerly belonged to him but was lost. Let the king, paying attention to all the laws of countries, subdivisions of castes and families, make the four castes fulfil their respective particular duties. Let him punish those who stray from the path of duty). But punishment must be awarded in cases of assault and abuse after due consideration of the particular place and time where and when the offence was committed, of the duties, age, learning of the parties, and the seat of the injury. Thank You