The concept of Hindu laws often comprises two competing visions  – old ancient law founded on Sanskrit texts known as the Vedas & its  commentaries, on the other hand,  the body of modern Hindu law comprised of statutes and court judgments regulating inheritance, marriage, and succession of Hindus . The reason for the emergence of this competing vision can be trace in the Indian legal history.

The legal history portrays, a  political & administrative compulsion of the company administration to develop a collaboration with the native elites to produce Hindu law  based on ancient Sanskrit texts. It was modeled on the basis of modern legal governance . 

According to Rachel Sturman &  Eleanor Newbigin ,the doctrine of  anglo-Saxon jurisprudence of law , liberalism,  capitalism and the legal articulation of citizenship claims. According to scholars like  Flavia Agnes there is a dominance of Brahmanical norms & rituals in the  practices of Hindu law, including marriage and divorce.

HOW DID ELITE NORMS ENTRENCHED IN MODERN HINDU LAW?

The British perceived the Sanskrit texts as being the sources of  the laws of the Hindus due to their textual understanding of the religion. Warren Hasting initiated judicial administration, in which inheritance, marriage, caste, and other religious usages were to be administered by the laws mentioned  in Sanskrit texts monopolized by priestly elites. 

After consultation with native priests , a “code of Hindu law” was compiled, known as the Vivadarnavasetu, or A Code of Gentoo Laws by Nathaniel Halhed.

Nathaniel Brassey Halhed (25 May 1751 – 18 February 1830) was born in Westminster and educated at the Harrow School. While at Oxford he studied oriental studies under the influence of William Jones.

He accepted a position as a writer in the service of the East India Company and came to India to translate the Hindu Code from the original Sanskrit Persian version at the suggestion of Warren Hastings.  This translation was published in his 1776 as his ‘A Code of Gentoo Laws’. Halhed spent most of his times in the province of Bengal in India.

Its learned preface describing Sanskrit, claiming a high antiquity for Hindu civilization, & challenging biblical chronology elicited enthusiasm with some, but condemnation from others such as the Revd George Costard” Published by London in 1781.

Translated from the Vivādārnavasetu, a digest of Hindu law in 21 sections (taraṅga) compiled for Warren Hastings by the pandits: Bāneśvara, Kṛipārāma, Rāma Gopāla, Kṛishnajw̄ana, Vireśvara, Kṛ̇ishṇacāndra, Gaurīkānta, Kāliśaṅkara, Syāmasundara, Kṛishnakeśava, and Sītārāma.

This code was considered inadequate to meet the needs of common lawyers so, William Jones, an orientalist & judge at the Calcutta Supreme Court, started reforms in it with the collaboration of the pundits – resulted into creation of another treatise, Vivada-bhangarnava.

This was still considered insufficient, & numerous textbooks on Hindu law and customary were compiled in the 19^th century by authors such as Thomas Strange and John Mayne.

These textbooks acquired importance due to the transfer of authority to the Crown govt. after 1857 and the establishment of High Courts. The relegation of Hindu law to the sphere of family law and its extension to enactments on property, contract etc. also made clarity in Hindu law essential.

Textbook writers & judges constructed the new sources of law on hierarchical manner with Smritis (commentaries on Vedas) being the foremost source. Different schools of laws were expounded by Henry Thomas Colebrooke,  known as Dayabhaga (the Bengal school) and Mitakshara (the Benares school).

The Court verdicts of colonial judges became authoritative due to the doctrine of precedent. This legacy of colonial law forms the basis for Hindu family law in India today.

MODERNIZING THE ANCIENT LAWS

By using appropriate legal methodologies to synthesise a uniform law for majority of Indians, but merely reflected a minority elite class. The process of generating Hindu law was associated with controversies such as recognizing custom – who is a “Hindu” and to whom does the “Hindu law” apply to – and the identification of practices such as adoption or division of property were frequently debated.

The most serious challenge to the idea of Hindu law arose in a conflict between James Henry Nelson, a British colonial administrator in the Madras Civil Service, and Justice Lewis Charles Innes of the Madras High Court on the nature of Hindu law.

Nelson argued that that, there was no Hindu homogeneity in the society and that the Manusmriti translated by William Jones could not be considered as a code of law to govern Hindus.

He also argued that, Tamils were not Hindus despite some of them adopting Brahmanical forms of worship and part of the Sanskrit law due to a large number of them following practices such as polyandry, widow remarriage, divorce, and “devil worship”.

These views were propounded in various works authored by Nelson titled ‘A View of the Hindu Law as Administered by the High Court of Judicature at Madras’, ‘A Prospectus on the Scientific Study of Hindu Law, and Hindu Law at Madras’, forming a sustained attack on the jurisprudence of the Madras High Court.

REASONS FOR NELSON’S APATHY TOWARDS HINDU LAW

His argument was historical and jurisprudential. He challenged the historical basis of Hindu law by arguing that there was no integrity to the code of Manu due to the existence of different versions in South East Asia.

He questioned whether written laws existed in the Indian subcontinent using historical accounts of travelers and based on the account of a Jesuit priest argued that no courts and maxims were used in place of written law.

In arguing that the Mitakshara school did not apply to the Southern part of India, he drew attention to customary practices which were not in conformity with the law laid down by the Mitakshara.

His main line of argument lay in his fifteen false principles elaborately explained in his View of the Hindu Law.

• He disagreed on the idea of “schools of Hindu law” and that they were inapplicable in Southern India.
• He mentioned that,  that Hindu law was applicable to all persons identified as Hindu.
• According to him, the customs that were not judicially recognized could not prevail despite evidence of its practice over a long period of time.
• He was critical of, the doctrines around collective ownership in the institution of the Hindu joint family and adoption by widows.
• Nelson challenged the interpretation & applicability of Sanskrit texts and the usage of English doctrines such as equity in settling legal claims along with an analysis of judgments drawn mainly from the Madras High Court.

SUGGESTIONS GIVEN BY NELSON

Nelson suggested setting up of a Commission to investigate & inquire into the acceptability of Sanskrit law & the customs and usages of Indian castes, by Indian masses. 

This should lead to a Code of Hindu law based on usages and customs to be followed by courts. He further argued that there should be separate legislation for non-Brahmin castes and legislation to allow Indians to assert customary practices against the general Hindu law. 

Duncan Derrett, in the biography of Nelson, comments that, Nelson’s failure to acknowledge Sanskrit texts – did not lend his argument accuracy, especially when he had charged the High Court with misinterpreting these texts.

The question of using Sanskrit texts as codes of law to interpret the customs and practices of a diversified population and the usage of interpretative methods from English common law for creation of family law.

According to Duncan Kennedy , the family law as a category emerged in the nineteenth century. This was due to the family being perceived as a site of moral relations which developed a form distinctive to each nation. Kennedy specifically mentions the development of different personal laws for Hindu and Muslim religious communities by the British as an illustration. 

The heated response to Nelson by Justice Innes in a letter addressed to Mounstuart Elphinstone Duff the Governor of Madras, reflected the anxiety of producing a Hindu family law with the methodology of the common law.

Using the concept of precedent in common law, Innes took a defensive position arguing that, the Madras High Court had to follow the doctrines of Hindu law as laid down by the Privy Council in England.

He defended the use of the Manusmriti on the ground that, this fitted the descriptions given of legal trials at that particular time and cited different interpretations of Sanskrit texts to counter Nelson’s arguments on the application of the Mitakshara.

Among other reasons, the argument on the lack of a written law was countered with the fact that English law was also unwritten law. In regard to the call for a Commission, Innes asserted the results of an enquiry in Bombay among different castes showing that their practices were in conformity with principles of Hindu law, including adherence to Brahmanical worship, and also reiterated the need to ignore specific customs in favour of Hindu law due to the demands of practical administration.

In constructing the domain of family law, Innes dismissed the usage of ordeals as customary legal practices as a ground for the non-applicability of the Mitakshara, arguing that the Mitakshara is concerned only with family law and not with criminal law.

This reasoning was used despite him admitting that the Mitakshara dealt with evidence and ordeals. He also argued that there were no treatises on family law in the Tamil language, which pointed to the probability of the Sanskrit texts being applicable.

For Innes, the domain of family law had to be constructed in relation to property and the economy, and courts were not bound to implement the aspects of the Mitakshara that dealt with property but not succession. The jurisprudential issue raised by Nelson in relation to the adequate translation of concepts such as adoption or guardianship in Sanskrit terminology was ignored by Innes completely.

Although Nelson’s claims failed, this debate is important for its exposure of the jurisprudential basis of Hindu law. Although it can be argued that the Sanskritic basis of Hindu law provides for customs to be upheld and that there is statutory recognition of customs of different groups and castes in India, it does not take away the fact that such groups have to prove their identities.

If history had been different and Nelson’s argument had been accepted, one may have had a more fractured Hindu law and a non-homogenous Hindu legal identity. This could have had consequences for Hindu political mobilization as well as movements to abolish personal laws through a uniform civil code.