History

Unit 4
 Dharma
 Dharma used in various
sense that is function, duty,
right rule ,conduct. it
includes law in the Widest
Sense- function of the
legal order
Concept of Dharma
 The concept of Dharma
ruled the Indian civilization
from the vedic period to
the Muslim invasions
 Meaning
 Not easy to determine the precise meaning of the term Dharma .
 Dharma means what holds things together .
 Formed from the word “dhr” means hold In other word , the spirit
of integration that works all the though the entire gamut of life in
the individual in the community &the world at large .
 Anything that disrupts the integrity –adharma
 Dharma sustains & ensure welfare of all in this world & enternal
bliss in other world .
 Dharma is generally the principle of righteousness or duty ,
principle of holiness & also the principle of unity .
 Kinds of Dharma
Various kinds of Dharma :
 Sanatan Dharma /Sadharan Dharma

 Regarded as the one which is common to all

 liberates man from the clutch of lust and greed. some characteristic
of Sanatan Dharm patients ,purity ,control over sences ,truthfulness ,
modesty, forgiving nature ,uprightness kindlines etc .
 Varnashrama Dharma
 Though Sanatan Dharma was for all, yet each clan (verna)
had its own Dharma became evident from the Varnashrama
Dharma
 according to this Dharma each Verna Brahmin, Kshatriya
,Vaishya and Shudra had its own Dharma in Varnashrama
Dharma society was organised into 4 occupational and 4
spiritual order of life .varnashrama Dharma recognise the
natural talent and abilities of each person
 Varna not based on birth what on the function and
occupation. Manu for example say that a Shudra become a
Brahmin and a Brahmin become a Shudra by conduct
 Interpretation
Vedic period

sage or seers Interprets law

considered divine or identified as receiving command
from the creator
Rishes helped king in the administration of the justice
DharmaShastra Literature

 Shows an awareness to relate law and tradition to the

changing need of society.
 most apparently in yajnavalkya Smriti
 Envisage a commission of Brahmin to determine the needs
of society and assists the kings in judicial administration
 Parishad consists of three, five or 10 members versed in
Veda to settle what was law and what was not .
 There was judges & lawyers their qualification suggest that
they were man of high learning versed in law , devoted to
work and capable of bringing the king on the right path of
Justice
 Law making and law
interpreting process
 A body constituted for purpose of framing law in the modern
sense does not appears to have exist in ancient India
 Earlier Vedas ( Shruti )main legislation of law
 Paramount authority
 Sacredness attached as of supernatural origin .
 Served a useful purpose when society was small and tribal in
character
 When society grow Complex the vedic regulation found it
difficult to relate current situation.
Smriti regulation - took into consideration the needs of changing
society in formulating laws to govern all aspect of life secular and
spiritual .
 Continued....
 Though smriti drew heavily from the Veda but special regard
for prevailing practice in the society.
 for first time in the history of Indian jurisprudence law made by
human source as opposed to divine authorityship .
 Kautilya was first thinker to conceive of statutory law
.According to him Royal law Supressed all the other sources of
law including Dharma .even through Raja was to rule in
accordance to Dharma Ashok edicts gives clear proof Royal
order touching even the social and religious life of the people
 this is the first instance where the state took upon itself the
responsibility making law to regulate large segment of society.
 Continued ...
 As far , the guilds, nigams & ganas etc (Corporation formed for
social and economical activities ) -rule and regulation of guilds and
sreni dharma prevailed . The king was to take into consideration the
sreni Dharma in deciding disputes .
 This law making process passed through 3 main phases :
1. Divine Authorityship
2. Human authorityship
3. King
Hindu thinkers alway held law or Dharma to be superior to state .state
was only a custodian, executive and servant of Dharma. It was a duty
of king to promote the cause of Dharma.
Hindu legal system ...

The hindu legal system – vyavahara

dharmasastra 3 period :

1. Vedic or pre sutra period

2. Dharma sutra period
3. Post smriti period .
Vedic period .

 Vedas - Shruti that is which was heard and handed down

from generation to generation verbally
 considered divine
 considered divine source of Dharma
 difficult to trace law from Vedas accept by following the
indications of positive (vidhis) and negative( nishedas)
indications
 Example- tell the truth, never tell the untruth, never hurt
anyone & follow Dharma
 the fountain head of Dharma or law is Vedas but no
special chapter in Veda related to law
shruti prevails over smritis in case of conflict between them
.
 Dharma Shastra period
 During Vedic period - patriarchal family - head of family- full authority over individual
member of the family.
 gradually individually rights came to be asserted as different from family .
 to meet these changes law and treaties regulating the right and liabilities of individual
came in form of Sutra .
 Earlier work which laid down were in the form of Sutra:
1. Srauta sutra – regulated rituals .
2. Grihya sutra- Regulated family life .
3. Dharma sutra- dealing with civil & criminal law ; human conduct .
Gautama : law on both religious & legal matters - laws related to inheritance ,
partition , Stridhan & marriage .
vashista : law & rules , inheritance , marriage , adoption
Recognised 6 forms of marriage rules & permitted the remarriage of widows .
 The smritis
 Smritis:
 Also called also called dharmashastra
 Compiled around 200 BC
 18 -20 smrities
 Contain all that we need to know about the dharma to be
adhered &all the rituals to be performed during our entire life .
 Among inportant law givers – Manu & yajnavalka most
celebrated .
 Manusmriti
 Written between 200 BC – 100 AD.
 Landmark in history of hindu law .
 Is Manava dharma sastra
 Divine origin
 Manu considered as the mythical surviver of flood & father of
human race , the primitive guru of sacred rites & law who is now in
the heaven & is workshipped as a diety
 The opening verses of Manu smriti describes how Manu was
approached in ancient times by 10 great sages & asked to declare
to them the sacred laws of castes . He then asked the laerned sage
Bhriju (whom he had taught the sacred law ) to instruct them . As
manu , himself learnt it from Brahma, its authority is considered
divine
 Continued ....
 Manu Smriti consist of 2684 verses
into 12 chapter . The subjecf
matter of 12 chapters covers
topics like
 Creation of universe
 Defination & source of Dharma
 Celibacy
 House holds code of conduct .
 Rajadharma
 Duties of husband & wife .
 Continued
 Give importance to 5 principle of Universal morality
1. non-violence
2. Turth
3. control on Desires
4. Purity
5. greed lesson in other property and things
 Manu - categories Dharma like rajdharma, Ashram Dharma , Varna Dharma , Stree
Dharma , Danpatya Dharma and Apad Dharma .according to manu “ law is an order
of human behaviour “
 animated from the will of God
 Rights and duties of men established by this law are innate or in born in him not
import from outside
 Gave 18 rights and remedy
 Promulgated the Dandaniti a treatise dealing with life , moral & government .
 Classification of law under 18 titles appears for 1st time in Manusmriti .
 Yajnavalkya smriti
 Code of yajnavalka based on manu smriti .
 More liberal on certain matters than Manu Smriti .
 Founder of the law of inheritance.
 Recognises ‘congnates’ as heirs .
 Yajnavalkya Smriti consists of 1010 verses into 3 chapters
 Vyavhara or civil & criminal law
 Achara proper conduct
 Prayaschitta
He does not confine the recognition of 18 titles of law as indicated in manusmriti. he provide that
are cause of vyavahara arises if any right of any person is infringe or any other injury is caused .
Accepted as the Paramount authority on Hindu law in the whole India including Kashmir except
Bengal .
forms the basis of Hindu law such as inheritance, Stridhana etc to the extent that they were not
modified by legislation
 Continued ....
 Yajnavalkya was the first to mention three popular court Kula , Sreni and Puga
arranged in ascending order of importance
 three kind of evidence
 Document
 witnesses
 and possession
 If partiton took place during the life time of the father , the eldest son was entitled
to the best share or else it may be divided equally among all the sons .
 If partition took place after the death of father his assset and liablities were shared
by the sons equally.the mother was entitled to an equal share while sister got a ¼
th part of the son share .
 Yajanvalkya championed widow’s right to inheritance & recognised the widow as
an heir.
 Continued...
 Six kind of Stridhana described by yajnavalka.
1. gift given by father, mother ,husband or brother
2. gift received at nuptial fire
3. gift received at husband marriage with another woman
4. gift received by her kindred
5. bride price
6. gift receive subsequent to marriage

Women had full property right over Stridhana but if the husband
utilise the Stridhana to meet difficult times ,he was not liable to
return it
 Continued ...
 Yajnavalka allow popular usage to prevail when
disagreement between law codices - sacred law could be
compromised when objectionable to all the people
 the king must respect law and custom of the conquered
country
 clear demarcation between religion and secular law
 laid emphasis on civil law he permits an interest ranging
from one and half ,two ,three or four percent be charged on
debt.
 He permit higher rate of interest 10% to 20% upon person
who travels through forest and who travelled by sea
 Continued ....
 Yajnavalkya prescribe 4 type of punishment like gentle admonition,harsh reproof , fine
& corporal punishment .
Path of law
 If crime committed for 1st time – the wrong doer’s little finger ir thumb cut off ; 2nd time –
hand or a foot cut off .
 Highest punishment prescribed for thise who knowingly offered help to a thief .
 Fine for false witnesses &cheat arbitrator .fine for non brahmans offenders but
banishment in case of brahmans
 Banishmnet prescribed for officers accepting bribe , brahmans giving false evidence.
The rules& regulations of corporate organisation , for playing with dice & other fraud
activities .
 Capital punishment- prescribed for destruction of an Embankment .
 For unintentional offences , punishment – milder .
 Smriti literature
 Law is an instrument to maintain and promote Dharma.
 Shruti and Smriti- two authoritative source of Hinduism .Shruti means
what is heard and Smriti-what is remembered. it is recollection of
experience
 if there is anything in Smriti which contradicts sruti then Smriti rejected.
 Smriti founded on Shruthi based on teaching of Vedas .Smriti explain
and develops dharma . It lays down the laws which regulate Hindu
National, social, family and individual obligation.
 The laws for regulating hindu society from time to time are codfied in
the smritis .
 Smritis have given detailed instructions according to the condition of
the time , to all classes of men regarding their duties in life .
Legal profession and legal
proceeding in ancient India
Type of court
people’s court
 during early period people live in small groups
.the head of these groups or tribes delivered
justice under open Sky before all the members .
 Head of village – gramini
 in city - Gram Sabha play important role in
settling disputes
3 kind of people court
Kula - belonging to family or caste
Shreni- belonging to same craft or profession or
trade
Gana -belonging to people of one place assembly .
the People’s Court consists of Panchayat A Sherni could
review the decision of kula and the gana have the power
to review the decision of a sherni .these popular courts
survive for long time and even exist at the time of
commencement of British rule in India

in people’s court -open argument made- no lawyer

.when kingship established the king was the highest court
 Kings Court
 Sasita the Court over which the king presided was the highest court in
any Kingdom
 the king( Raja), the chief justice (pradivivaka) & the Sabhyas (Judges)
were judicial officers of the court.
 King - had power passing final decrees
 the chief justice- give final opinion on case
 judge- to investigate the case
 the chief justice and the sabhya well versed in the Shastra , vyavahara
and Dharma. The sacred laws, rules and who were Nobel and impartial
towards friend and foe.
 the ancient judicial proceeding consists of four parts :
 Purvapaksha (declaration) starting the case of plaintiff
 Uttara - the written statement being the reply or answer given
by defendant
 kriya the trial of the case by the court
 Nirnaya - judicial decision
 Unless the personal presence was required the plaintiff or
defendant could authorised any person to appear before the
court and speak on his behalf .he could be represented by his
own father, brother or son. a person not being father brother or
son of the party who spoke for a party in a suit without being
authorised by the party was liable to be punished
Appointment of a Niyogi ( an advocate )

 a party to a litigation could appoint a niyogi , person well

versed in law to represent his case before the court .
 appointed by the party not by the king. if he acted owing to
greed –punished
 Niyogi used to put forward the case .
 the king could try lawsuit assisted by the Chief Justice , judges
,Amartya & Brahmans strictly adhering to the dharmasastras
 the chief justice should not have conversation in private with the
litigants if they could be fined parties had to themselves
produced witnesses .the king was expected to himself examine
the witnesses .
the witnesses should give their disposition inside the Hall Of
Justice and not anywhere else
 Witness should give their evidence in the presence of the
plaintiff or the defendant as the case May be and never
behind their back
 before giving the evidence the witnesses should administer
an oath after taking off his shoes and his Turban .he should
stretch out his hand and declared the truth taking in his right
hand gold , cow dung or sacred thread . the highest
punishment that is capital punishment was given for offences
of giving false evidence
The judges was to question
each witness separately
.Every judge should deliver
their fair opinion discarding
love and hatred
 under the signature of chief
justice and bearing the royal
seal (rajmudra) the Jaya
Patra( judgement copy ) was
given to the victorious party
 Ordeal and divine test
 The parties were not required to pay the court fee at the time of initiating
of suit.
 the successful party was required to pay 5% on his claim to the king
 after filling the complaint the summons was issued to the opposite party
to answer the charges
 the trial was conducted by the court with the help of proper witness and
document produced in support of the claim
 when the parties in litigation were unable to prove their cases by mean
of witness & evidence the court could allow the parties concerned to
prove their case through divine test or ordeal .namely ordeal by balance
, ordeal of fire, ordeal of water & ordeals of poison etc. it was believe
that truth could be found out by applying divine test and ordeals .
Ordeal by water Ordeal by fire