Eternal India Encyclopedia

Eternal India encyclopedia

Ancient Concepts, Sciences & Systems

shall be regulated by the sacred law, the Vedangas and the Pu- ranas. The customs of countries, castes and families which are not opposed to the sacred laws have also authority; cultivators, traders, herdsmen, money lenders and artisans have authority to lay down rules for their respective classes.” Brihaspathi is to the same effect. Rule of Manu read with that of Yagnavalkya, Gautama and Brihaspathi indicates that the Smriti writers were fully conscious of the needs of society. Therefore, they specifically made Sadachara i.e. good custom or practice, agreeable to the conscience of the people who are well intendoned and who have regard for the welfare of society, as a source of law. The expression Sadachara was defined by Harita QPM 1-part I pi44 : “The word sat means good, and the good are those who are pure and free from stigma, and the practice of such people is called Sadachara .” The above definition impressed that it was not any and every custom that could acquire the force of law. The custom or usage, in order to secure social recognition must be that acceptable to honest and reasonable persons, whose character and conduct was beyond reproach. This was the residuary provision which enabled the adoption of an existing law to suit the needs of the time or to provide for matters not covered by the Shruti or Smritis. This provision was fully utilised by the great galaxy of jurist commentators to mould the law to suit the requirements of the changed circumstances. As more than one source was indicated as the sources of law, the basic principles regarding the superiority inter se of the laws as found in the various sources, whenever there was conflict, were also laid down. Vyasa (l-v-4) states: “Whenever there is conflict between Shruthi (Vedas) Smritis and Puranas, then what is stated in the Shruthi should be taken as authority.” Where two Smritis conflict Yajnavalkya (11-21-1) states that “principles of equity as determined by popular usage shall prevail.” This rule indicates that even in cases of conflict between two Smritis, the king was not given any power or discretion to make a choice but he was required to apply the law as approved by custom and usage by the people themselves. Pitamaha states: “Whatever be the best practice, whether in accordance with law or not, that is declared to be the usage by reason of being practised by families and the country. Transactions between inhabitants of sa village, colony, town and farmers' guild, caravan etc should be decided according to the usage laid down by Brihaspathi. This has reference to disputes inter se among the members of a village, family etc. In regard to a dispute as between them and others, a decision had to be taken according to the dictates of shastras alone.” The principle enunciated by Pitamaha shows that the rules of custom and usage of a group such as families or a village was to be applied when both parties to a dispute belonged to the same group and in cases where they belonged to different groups, they were to be governed by the written text. Naradap 15-39-40 (Dharma kosa p 90) states: “When the rules of sacred law and dictates of prudence are at variance, he (king) must discard the dictates of prudence and follow the rules of sacred law, ii) when it is impossible to act up to the precept of sacred law, it becomes necessary to adopt a method founded on reasoning because custom decided everything and overrules the sacred law.

VII-22 supra. However one of the most distinguishing aspects as between the concept of law as defined in the Western jurisprudence and as defined in Hindu jurisprudence is, whereas the imperative command of the king constituted the law according to the former, under Hindu jurisprudential concept, the law was a command even to the king and was held as superior to the king. This meaning is brought out by the expression ‘law is the king of kings’. Another aspect discernible from the definition of law given in Brihadaran- yaka Upanishad and accepted in the Dharmashastras is that the law and the king derive their strength and vitality from each other. It was impressed that the king remained powerful if he observed the law and the efficiency of law also depended on the manner in which the king functioned, because it was he who was responsible for its enforcement. There were also specific provisions which made it clear to the king that if he was to be countenanced by the people,he was bound to act in accordance with law. Therefore the first and foremost duty of the king as laid down under that part of Dhar- mashastra called Rajadharma 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 himself it was considered as superior and binding on that sovereign himself. 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 as the source of law. jadharma, the king was given the power only to enforce the law. Dharmashastra did not recognise any legislative power in the king. This is the most important distinction between the concept of kingship in India and the concept of kingship in Western countries. According to the Western concept the king was the fountain of all the three important limbs of the state viz., the legislature, the executive and the judiciary. But under kingship as recognised and established under the Dharmashastras the laws were those laid down by the Dharmashastras themselves. They did not authorise the king to lay down new laws to amend the provision of the Dharmashastras. On the other hand the Dharmashastras also laid down the law governing the conduct of the king himself (Ra- jadharma). Apart from not recognising the power to make law in the king, the Dharmashastras positively ordained that the king shall not legislate. A king should decide cases according to the rules of Shastras. In the absence of a provision in the texts he should follow the usages. A king should never act according to his own fiat. Such an action on the part of the king causes danger to him and brings ruin to the people. According to Manu the Veda is the first source of Dharma. “The expression by the seers(smritikaras)'handed down from generation by memory, the virtuous conduct of those who are well versed in the Vedas and, lastly, what is agreeable to the good conscience are the other sources. Yagnavalkya declares that the “Vedas , the smritis, good conduct or approved usage, what is agreeable to conscience proceeding from good intention, are the sources of law.” According to Gautama (234-19-20): “Administration of justice SOURCES OF LAW The ancient Dharmashastras declared that Dharma which in- cluded the “law” was binding on the king. According to Ra-