Sources of Hindu Law- Modern Sources

Hindu law has been greatly influenced by British rule. It was seen that the British came up with the concept of equality and justice but these sources existed even in the Shastric Hindu law, though in a different form.

                             

MODERN SOURCES OF HINDU LAW

In ancient times, the Hindu had a fairly perfected system of administration of justice and both the people's courts and the king's courts used to render decisions.

But we did not have a system of recording cases and judgments delivered. So it was not possible to apply stare decisis. This process started with British rule. 

Among the modern sources of Hindu law are included-

I) EQUITY, JUSTICE AND GOOD CONSCIENCE: Equity means fairness in dealing. Modern judicial system greatly relies on being impartial. True justice can only be delivered through equity and good conscience.

In a situation where no rule is given, a sense of reasonableness must be applied.

According to Gautama, if there is no law on a particular matter then the matter must be decided by at least 10 people who are knowledgeable in shastras.

According to  Brihaspati, if there is no law on a particular matter then the decision should not be made merely on the basis of the words Shastra.

According to Yajnavalkya, if there is no law on a particular matter then Nyaya (natural equity and justice) must be followed. This principle has been followed by Privy Council while deciding cases. 

Equity, Justice and Good conscience were established as a source of Hindu law by the British administration of Justice in India. British government directed the High Courts to decide the cases in accordance with equity, justice and good conscience on the matters where the law was silent. 

In Gurunath vs. Kamlabai, the Supreme court said that the courts have authority to decide the cases under equity, justice, and good conscience where there is the absence of any rule of Hindu law but it must be not inconsistent with any theory of Hindu law.

II) PRECEDENT:  Earlier there was no system of recording of cases. Precedent and stare decisis are gifts of British administration of Justice in India. Precedent means earlier decisions or decided cases. 

It is known as the source of Hindu law because all the important principles and rules are recorded in case laws. Now the only reference to the leading decision is enough. No need to find out the original source. 

Precedent is known as source of Hindu law because all the doctrines, principles and rules can be modified by the process of judicial interpretation. 

Although the judiciary is not lawmaking authority, but in the process of judicial interpretation Judiciary does make laws. 

Today the doctrine of stare decisis is part of Indian law. According to this doctrine, the decision of the Supreme court is binding to all courts, though the Supreme court is not bound by its own decision. 

III) LEGISLATION:  Legislation is a modern source of Hindu law. During British rule, the Government was very slow and cautious to change Hindu law by legislative intervention. However, changes in Hindu law during British rule were very important. 

The term Legislation is derived from the two Latin words- Legis and Latum.

Legis means 'law'.

Latum means 'to make'.

Therefore, Legislation means to make laws. In Hinduism, law is known as 'dharma'. In Islam, law is known as 'hukum'.

In 1941, a committee was formed to make proposal upon Hindu law. The committee remained inactive for 3years. 

In 1944, the committee was revived under the chairmanship of B.N. Rao. The committee submitted the proposal to the legislature, which in its report recommended that Hindu law should be codified in gradual stages.

Thus came into existence the four major enactments of codified Hindu law, viz,

1. The Hindu Marriage Act, 1955

2. The Hindu Adoption and Maintenance Act,1956

3. The Hindu Minority and Guardianship Act,1956

4. Hindu Succession Act,1956

These are the modern sources of Hindu law explained.