Eternal India Encyclopedia

Ancient Concepts, Sciences & Systems

Eternal India

encyclopedia

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.

SOURCES OF LAW

The ancient Dharmashastras declared that Dharma which in-

cluded the “law” was binding on the king. According to

Ra-

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

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

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.