Modern Hindu law
Modern Hindu law is one of the personal law systems of India along with similar systems for Muslims, Sikhs, Parsis, and Christians. This
History and context
With the formal independence of India from Great Britain on August 15, 1947, India acquired a new
India's first prime minister,
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:
Application of modern Hindu law
As stated by Article 44 of the
Before discussing the modern application and sources of Hindu law it is important to outline whom these 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.[2] 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 Dharmaśāstra, as well as āćāra or customs, and commentaries or digests that translated and interpreted the laws. Since British colonial rule, India has codified several aspects of the Hindu tradition into the Indian legal system as well as adopted common and civil legal procedures.[2]
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.[2] While it is not a traditional source of law for the Hindu legal system, it is the latest and most legitimate form.
During colonial rule, the British codified several aspects of the Hindu legal tradition into the Indian legal system, based upon the large number of Hindus residing in British India. Thus upon gaining independence, many of the same laws that governed the country during colonial rule were maintained as such, making the Indian Constitution and legal system heavily influenced with Hindu legal traditions at its foundation.[3]
Case law
India is based on the British
Modern Hindu law relies on the interpretation of judges and their ability to decipher mitigating factors within each legal situation.[3] 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
Early in December 2008, a marriage between a Hindu and a Christian was deemed invalid under the
Hindu code bills
Following independence, the
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.[6] Nehru also felt that because he was Hindu, it was his prerogative to codify specifically Hindu law, as opposed to Muslim or Jewish law.[8]
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.[9]
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."[10]
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 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.
Judges
The judges that preside over the district courts in India are state bureaucrats, not religious priests or scholars. Thus it is possible for a Hindu judge to preside over a divorce case between a Muslim couple or for a Christian judge to preside over a case involving a Hindu family. With no formal education on the religious laws of the state, judges may not be well versed in the laws they are to adjudicate. They rely heavily on case precedent and scholarly works to guide them through the cases.[11]
Lawyers
Lawyers in India are trained in general law schools and receive no formal and specific training on Hindu law, Muslim law, or any other personal religious laws. All lawyers are however required to take courses regarding personal law. These larger courses touch on the variety of personal laws that exist in India, including Hindu Law.
Notes
- ^ Bannigan, John (1952, December 3). The Hindu Code Bill. Far Eastern Survey: American Institute of Pacific Relations, XX1, Retrieved October 22, 2008, [1]
- ^ a b c Nagpal, Ramesh C. Modern Hindu Law. Allahabad: Manav Law House, 1983.
- ^ a b Menski, Werner. Comparative Law in a Global Context : The Legal Systems of Asia and Africa. New York: Cambridge UP, 2006.
- ^ a b "Yahoo Search - Web Search".
- ^ Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 18
- ^ a b Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 107
- ^ Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 106
- ^ Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 119
- ^ Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 108
- ^ Rina Williams. Postcolonial Politics and Personal Laws. Oxford University Press: New Delhi. 2006. Pg. 114
- ^ http://www.upiasia.com/Human_Rights/2008/10/13/indian_judges_must_clean_up_their_courts/2363/
References
- Bannigan, John (1952, December 3). The Hindu Code Bill. Far Eastern Survey: American Institute of Pacific Relations, XX1.
- Kishwar, Madhu (1990, May, 30). Codified Hindu Law: Myth and Reality.
- Menski, Werner. Comparative Law in a Global Context : The Legal Systems of Asia and Africa. New York: Cambridge UP, 2006.
- Nagpal, Ramesh C. Modern Hindu Law. Allahabad: Manav Law House, 1983.