Modern Hindu law
Encyclopedia
Modern Hindu law refers to one of the personal law systems of India along with similar systems for Muslims, Sikhs, Parsis, and Christians. This Hindu personal law or modern Hindu law is an extension of the Anglo-Hindu Law
developed during the British colonial period in India, which is in turn related to the less well-defined tradition of Classical Hindu Law
. The time frame of this period of Hindu law begins with the formal independence of India from Great Britain on August 14, 1947, and extends up until the present. While modern Hindu law is heralded for its inherent respect for religious doctrines, many still complain that discrimination (especially with the historical tradition of the caste system) still pervades the legal system. Though efforts to modernize and increase the legal rights of the marginalized have been made (most notably with the passage of the Hindu Code Bills and the establishment of notable legal precedents), the modern legal situation is, like all legal systems across the world, far from perfect.
, but is codified and thus is actually more similar to civil law
in nature. The modern Hindu legal system is applied to strictly personal law, including issues of marriage, inheritance and adoption, whereas India's secular legal system is applied to issues of criminal law and civil law.
India's first prime minister, Jawaharlal Nehru
, worked to unify the newly independent India by proposing the reformation and codification of Hindu personal law. Nehru's efforts led to contentious debates over the so-called Hindu Code Bill, which he offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. The Hindu Code Bill was initially and continues to be very controversial within and outside of the Hindu community. Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation. 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.
Nehru completed codification and partial reform, but overall the legal system only slightly changed. In the end, a series of four major pieces of personal law 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.
The overall effect of the codification of these rules was negative. It was codified for the Hindus yet left them with limited legal option, as well as tried to stamp out any diversity name of "Hindu unity". To no surprise it also caused a deep rift between Hindus and Muslims. Some other negative effects included:
, Jewish, and Hindu religions.
Before discussing the modern application and sources of Hindu law it is important to outline whom thse laws govern. In the case of Hindu personal and family laws, as outlined by the Acts of Parliament discussed below, those that are followers the Hindu religion, as well as those who are not Christian, Jewish or Muslim, are held accountable to these laws. Therefore, it is assumed that all Indians who are not Muslim, Jewish or Christian are Hindu, disregarding personal religious laws of followers of Buddhist, Jain, Sikh and other religions, creating controversy within these communities. The Indian legal system does recognize Muslim, Jewish and Christian family courts as well as secular family courts.
, as well as sadachar or customs, and commentaries or digests that translated and interpreted the laws. Since British colonialism, India has codified several aspects of the Hindu tradition into the Indian legal system as well as adopted common and civil legal procedures.
During colonialism, the British codified several aspects of the Hindu legal tradition into the Indian legal system, with the assumption that all Indians were Hindus. Thus upon gaining independence, many of the same laws that governed the country during colonialism were maintained as such, making the Indian Constitution and legal system heavily laden with Hindu legal traditions at its foundation.
, or precedent, when deciding cases. Any case decision made by a higher court is a source of law to all of the lower courts, in the prospect that the laws will be applied in a similar manner. The Hindu family courts are expected to follow laws handed down from previous cases.
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating factors within each legal situation. This is reflective of the ancient Hindu legal tradition of working out problems on a case specific basis in finding justice in each specific instance.
Another Act that most came to be was Early in December 2008, the marriage between a Hindu and a Christian was deemed invalid under the Hindu Marriage Act (1955) as the Act provides for only Hindu couples to enter into a wedlock, the Supreme Court has ruled .Allegedly, Raj had misinformed his wife about his social status and she filed for divorce. He claimed that the Hindu Marriage Act does not preclude a Hindu from marrying a person of another faith. Dismissing the Christian husband’s appeal, the apex court upheld the High Courts’s view that the marriage not valid under the Hindu Marriage Act, specifically pointing to the fact that Section 5 of the Act makes it clear that a marriage may be solemnized between any two Hindus if the conditions in the said Section were fulfilled .
completed the codification and reform of Hindu personal law, a process that had been begun by the British. According to the British policy of noninterference, reform of personal law should have arisen from a demand from the Hindu community. This was not the case, as there was significant opposition from various Hindu politicians, organizations, and devotees who saw themselves unjustly singled out as the sole religious community whose laws were to be reformed. However, the administration saw such codification as necessary in order to unify the Hindu community, which ideally would be a first step towards unifying the nation. They succeeded in passing four Hindu Code Bills, including Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act
(1956), and Hindu Adoptions and Maintenance Act (1956)
.
Nehru and his supporters insisted that the Hindu community, which comprised 80% of the Indian population, first needed to be united before any actions were taken to unify the rest of India. Therefore, the codification of Hindu personal law became a symbolic beginning on the road to establishing the Indian national identity. Nehru also felt that because he was Hindu, it was his prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law.
Those in Parliament who supported the Bills also saw them as a vital move towards the modernization of Hindu society, as they would clearly delineate secular laws from religious law. Many also heralded the Bill’s opportunity to implement greater rights for women, establishing that such rights were necessary for India’s development.
The Hindu Code Bills are still controversial among some communities, including women's, nationalist, and religious groups. At the time of their creation, many portrayed them as a serious deviation from Hindu legal precedent. However, now many, including Nivedita Menon, argue that it is "misleading...to claim that Hindu personal law was reformed [in the 1950s]. It was merely codified, and even that was in the face of stiff resistance from Congress leaders."
at the apex of the hierarchy for the entire country, twenty-one High Courts at the top of the hierarchy in each State, and subsequent district courts that govern family, criminal and civil laws within the states. The High Courts have jurisdiction over a state, a union territory or a group of states and union territories. District courts are the courts of first resort.
It is within the district courts that Hindu law and other religious laws are administered. State judges apply Hindu law on a case by case basis.
Anglo-Hindu law
Anglo Hindu Law is characterized by three main features: 1.) the collection and translation of important Dharmaśāstra texts by British administrator-scholars in order to "apply" the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court pandits...
developed during the British colonial period in India, which is in turn related to the less well-defined tradition of Classical Hindu Law
Classical Hindu law
Classical Hindu law is a category of Hindu law found in ancient India that traditionally begins with the transmittance of the Vedas and ends in 1772 with the adoption of "A Plan for the Administration of Justice in Bengal" by the Bengal government...
. The time frame of this period of Hindu law begins with the formal independence of India from Great Britain on August 14, 1947, and extends up until the present. While modern Hindu law is heralded for its inherent respect for religious doctrines, many still complain that discrimination (especially with the historical tradition of the caste system) still pervades the legal system. Though efforts to modernize and increase the legal rights of the marginalized have been made (most notably with the passage of the Hindu Code Bills and the establishment of notable legal precedents), the modern legal situation is, like all legal systems across the world, far from perfect.
History and Context
With the formal independence of India from Great Britain on August 14, 1947, India acquired a new constitution as well as a complex legal system. While a Western influence is apparent in this system, it is not an exact replication. The Indian legal system has characteristics of common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, but is codified and thus is actually more similar to civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
in nature. The modern Hindu legal system is applied to strictly personal law, including issues of marriage, inheritance and adoption, whereas India's secular legal system is applied to issues of criminal law and civil law.
Jawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
, worked to unify the newly independent India by proposing the reformation and codification of Hindu personal law. Nehru's efforts led to contentious debates over the so-called Hindu Code Bill, which he offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. The Hindu Code Bill was initially and continues to be very controversial within and outside of the Hindu community. Criticism of the document is based on the belief that the laws in the Hindu Code bill should apply to all citizens regardless of religious affiliation. 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.
Nehru completed codification and partial reform, but overall the legal system only slightly changed. In the end, a series of four major pieces of personal law 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
Hindu Minority and Guardianship Act
The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Adoptions and Maintenance Act...
(1956), and Hindu Adoptions and Maintenance Act (1956)
Hindu Adoptions and Maintenance Act (1956)
The Hindu Adoptions and Maintenance Act was enacted in India in 1956 as part of the Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Minority and Guardianship Act...
. 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.
The overall effect of the codification of these rules was negative. It was codified for the Hindus yet left them with limited legal option, as well as tried to stamp out any diversity name of "Hindu unity". To no surprise it also caused a deep rift between Hindus and Muslims. Some other negative effects included:
- It gave Hindu women the notion that they now had equal rights.
- Compared to the religious Muslim law, Hindu law appeared to be secular in nature, and thus the only way Muslims could "secularize" laws in essence to "Hinduize" it.
- Codification fossilized Hindu law and customs into a conservative mold.
Application of Modern Hindu Law
As stated by Article 44 of the Indian Constitution, India is a secular state that strives towards legal uniformity. Many argue that the commitment of the Indian government towards this gradual uniformity of the legal system threatens the minority religious groups that utilize the plurality of the law to maintain traditions and implement their religious laws. While modern Indian Law claims to make strides towards secularism, it is undeniable that its foundations rise from the Hindu legal tradition and continues to maintain religious legal acceptance by recognizing the personal and family laws of the Islamic, ChristianChristian
A Christian is a person who adheres to Christianity, an Abrahamic, monotheistic religion based on the life and teachings of Jesus of Nazareth as recorded in the Canonical gospels and the letters of the New Testament...
, Jewish, and Hindu religions.
Before discussing the modern application and sources of Hindu law it is important to outline whom thse laws govern. In the case of Hindu personal and family laws, as outlined by the Acts of Parliament discussed below, those that are followers the Hindu religion, as well as those who are not Christian, Jewish or Muslim, are held accountable to these laws. Therefore, it is assumed that all Indians who are not Muslim, Jewish or Christian are Hindu, disregarding personal religious laws of followers of Buddhist, Jain, Sikh and other religions, creating controversy within these communities. The Indian legal system does recognize Muslim, Jewish and Christian family courts as well as secular family courts.
Sources of Modern Hindu Law
Sources of Classical Hindu law arose from the religious texts of the DharmaśāstraDharmasastra
Dharmaśāstra is a genre of Sanskrit texts and refers to the śāstra, or Indic branch of learning, pertaining to Hindu dharma, religious and legal duty. The voluminous textual corpus of Dharmaśāstra is primarily a product of the Brahmanical tradition in India and represents the elaborate scholastic...
, as well as sadachar or customs, and commentaries or digests that translated and interpreted the laws. Since British colonialism, India has codified several aspects of the Hindu tradition into the Indian legal system as well as adopted common and civil legal procedures.
Legislation
Legislation, as created and implemented by the Indian government, is the strongest source of law in all Indian courts. In the case of two conflicting sources, legislation holds the highest jurisdiction. While it is not a traditional source of law for the Hindu legal system, it is the latest and most legitimate form.During colonialism, the British codified several aspects of the Hindu legal tradition into the Indian legal system, with the assumption that all Indians were Hindus. Thus upon gaining independence, many of the same laws that governed the country during colonialism were maintained as such, making the Indian Constitution and legal system heavily laden with Hindu legal traditions at its foundation.
Case Law
India is based on the British common legal system, thus the courts rely heavily on stare decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
, or precedent, when deciding cases. Any case decision made by a higher court is a source of law to all of the lower courts, in the prospect that the laws will be applied in a similar manner. The Hindu family courts are expected to follow laws handed down from previous cases.
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating factors within each legal situation. This is reflective of the ancient Hindu legal tradition of working out problems on a case specific basis in finding justice in each specific instance.
Notable Legal Precedents and Legislation
As is the case with many global legal systems that rely on precedents as a source of law, certain cases stand out that have shaped the Indian legal system into what it is today. Not only do they provide the foundation for future legal cases but they also make a statement about the state of the country and what direction it wants to lead. One such case came about during the efforts of modernization reforms in India. Known as the Medical Termination of Pregnancy Act (1971), the law allowed Indian women to legally obtain abortions. Thus this law made not only a religious statement, as India was trying to become more secular, but also made a statement of equality as it expanded the rights women had.Another Act that most came to be was Early in December 2008, the marriage between a Hindu and a Christian was deemed invalid under the Hindu Marriage Act (1955) as the Act provides for only Hindu couples to enter into a wedlock, the Supreme Court has ruled .Allegedly, Raj had misinformed his wife about his social status and she filed for divorce. He claimed that the Hindu Marriage Act does not preclude a Hindu from marrying a person of another faith. Dismissing the Christian husband’s appeal, the apex court upheld the High Courts’s view that the marriage not valid under the Hindu Marriage Act, specifically pointing to the fact that Section 5 of the Act makes it clear that a marriage may be solemnized between any two Hindus if the conditions in the said Section were fulfilled .
Hindu Code Bills
Following independence, the postcolonial government led by Jawaharlal NehruJawaharlal Nehru
Jawaharlal Nehru , often referred to with the epithet of Panditji, was an Indian statesman who became the first Prime Minister of independent India and became noted for his “neutralist” policies in foreign affairs. He was also one of the principal leaders of India’s independence movement in the...
completed the codification and reform of Hindu personal law, a process that had been begun by the British. According to the British policy of noninterference, reform of personal law should have arisen from a demand from the Hindu community. This was not the case, as there was significant opposition from various Hindu politicians, organizations, and devotees who saw themselves unjustly singled out as the sole religious community whose laws were to be reformed. However, the administration saw such codification as necessary in order to unify the Hindu community, which ideally would be a first step towards unifying the nation. They succeeded in passing four Hindu Code Bills, including Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act
Hindu Minority and Guardianship Act
The Hindu Minority and Guardianship Act was established in 1956 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Adoptions and Maintenance Act...
(1956), and Hindu Adoptions and Maintenance Act (1956)
Hindu Adoptions and Maintenance Act (1956)
The Hindu Adoptions and Maintenance Act was enacted in India in 1956 as part of the Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act , the Hindu Succession Act , and the Hindu Minority and Guardianship Act...
.
Nehru and his supporters insisted that the Hindu community, which comprised 80% of the Indian population, first needed to be united before any actions were taken to unify the rest of India. Therefore, the codification of Hindu personal law became a symbolic beginning on the road to establishing the Indian national identity. Nehru also felt that because he was Hindu, it was his prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law.
Those in Parliament who supported the Bills also saw them as a vital move towards the modernization of Hindu society, as they would clearly delineate secular laws from religious law. Many also heralded the Bill’s opportunity to implement greater rights for women, establishing that such rights were necessary for India’s development.
The Hindu Code Bills are still controversial among some communities, including women's, nationalist, and religious groups. At the time of their creation, many portrayed them as a serious deviation from Hindu legal precedent. However, now many, including Nivedita Menon, argue that it is "misleading...to claim that Hindu personal law was reformed [in the 1950s]. It was merely codified, and even that was in the face of stiff resistance from Congress leaders."
Administration and Practice
There are no religious courts in India, as it is a secular nation. Rather religious personal laws are adjudicated by the state on a case by case basis.Courts
The court system of India is essentially divided into three tiers, the Supreme Court of IndiaSupreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
at the apex of the hierarchy for the entire country, twenty-one High Courts at the top of the hierarchy in each State, and subsequent district courts that govern family, criminal and civil laws within the states. The High Courts have jurisdiction over a state, a union territory or a group of states and union territories. District courts are the courts of first resort.
It is within the district courts that Hindu law and other religious laws are administered. State judges apply Hindu law on a case by case basis.