Ancient Bharatiya Jurisprudence Is Relevant Even In The 21st Century: Justice S. Abdul Nazeer
Justice S Abdul Nazeer, former Judge of the Supreme Court and the current Governor of Andhra Pradesh spoke about the significance of the ancient Bharatiya Jurisprudence at a national conference organised by the Central University of Karnataka and Vijnaneshwara Pratishtana Trust on the Birth Anniversary of late Dr. Justice M. Rama Jois, former Chief Justice of Panjab and Haryana High Court.
"The contribution of ancient Bharatiya jurisprudence towards the understanding of modern law and jurisprudence cannot be ignored", Justice Nazeer said. He also said that Manusmriti and Yagnavalka Smriti are the best examples of Smritis, which are relevant even in the 21st century.
During the event, Justice Nazeer also asked Senior Advocate M.B Nargund, a former Additional Solicitor General of India who was present in the audience, whether the proposed Uniform Civil Code will do away with the concept of Hindu Undivided Family (HUF) or will it remain for "taxation purposes". He asked if HUF will be available for Christians and Muslims as well. He said, "You ought to have uniform civil code and not common civil code".
In the event held last week, Justice Nazeer spoke about Mitakshara, a legal commentary on the Yajnavalka Smriti written by Vijnaneshara who was a scholar in the Western Chalukya Court in the late 11thand early 12thCentury. The Mitakshara, along with the Dayabhaga are considered the main authorities on Hindu Law from the time the British began administering laws in India.
He pointed out that “at that point, Mitakshara held the status of a legislative text because it was used as a direct resource regarding inheritance in the courts of law in most of India”, except Bengal, Assam and some parts of Odisha and Bihar, where the Dayabhaga system prevailed as an authority of law. The most important topics in Mitakshara include property rights, property distribution and inheritance.
Justice Nazeer referred to the Hindu law as the most ancient law in the world. He said that “originally Hindu law was created to satisfy every need and welfare of the people”. He quoted Sir Henry Sumner Maine from his work Dissertations on Early Law and Customs of 1883 where he mentioned about the knowledge contained in the Hindu scriptures by saying “the Hindu way of putting it was and is not simply that the scriptures is true, but that everything which is true is contained in the scriptures.”
Justice Nazeer noted that at the root of the Hindu law was “the general family welfare for promotion of the family as a unit, for which the personal interest of the family members could be sacrificed. Under Hindu law, therefore, the joint family system came first in the historical order and the individual recognition of the person distinct from the family came later”. He elucidated that the ancient system generally treated property acquired by the members of the family as the joint property of the family. “With gradual transformation of the society and recognition of the members of the family as independent in their own right, the concept of separate property and rules for its inheritance were developed. This dual property system, though considerably diluted has survived the test of time”, he added. He further stated that the Joint family properties are unique entities with no similar concept anywhere else in the world.
Justice Nazeer further described Mitakshara coparcenary as a concept involving spiritual significance. A coparcener was a person capable of offering spiritual salvation by performance of funeral right. As a consequence of that, they were conferred a right on the property by birth. He stated that “this religious aspect is associated primarily with relationships and spiritual benefits, and not merely from the property perspective, and was totally side-lined later by the legal aspect.” He added that the present concept of coparcenary is linked with the ownership of the property.
The significance of Dharma in the jurisprudence of ancient India was stressed upon by Justice Nazeerby stating that the jurisprudence itself was “shaped by the concept of Dharma or rules of right conduct as outlined in the various manuals explaining the Vedic scriptures such as Puranas and Smritis. The King had no independent authority, but derived his powers from Dharma, which he was expected to uphold.”
He quoted the Manav Dharma Shastra, where the ancient sage Manu had prescribed ten essential rules for the observance of Dharma, which were patience, forgiveness, self control, honesty, sanctity, control of senses, reason, learning, truthfulness and absence of anger. Manu had also written that non-violence, truth, non-coveting, purity of body and mind, control of senses are the essence of Dharma, added Justice Nazeer. Thus, the Dharmik laws govern not only the individual, but all in the society. He pointed out that the 18 titles of law or grounds for litigation deal primarily with matters of king, state and judicial procedure. “So the concept of Dharma rule Indian civilization from the Vedic period - from the King to his last servant, every one was bound by Dharma... Dharma follows the law of natural justice. These laws are considered divine and cover all facets of society - political, social, religious or spiritual duty of a person. Dharma makes a life of a person complete and civilized”, he said.
He stated that in Mahabharata, Yudhishtira described to Bhishma that whatever tends to create conflict is Adharma and whatever tends to put an end to conflict and bring about unity and harmony is Dharma. Justice Nazeer identified the three sources of Dharma as the Vedas, Smritis and Acharas. Manusmrutis and Yagnavalka Smritis are examples of Smritis. These Smritis, he stated are relevant even in the 21st Century. Achara means customary laws which are followed by a particular group or community. Acharas are referred to where the Vedas and Smritis are silent.
Justice Nazeer quoted John Dawson Mayne who stated that the “Hindu law has the oldest pedigree of any known system of jurisprudence and even now it shows no signs of decrepitude.” Justice Nazeer noted that the Hindu system of Jurisprudence has been in existence for over 5000 years and has continued to govern the social and moral fabric of Hindu life. He also quoted Mark Twain who stated that “India is the cradle of human race, the birthplace of the human speech, the mother of history, the grandmother of legend and the great grandmother of tradition. Our most valuable and most instructive materials in the history of men are treasured up in India only."
Justice Abdul Nazeer thus concluded that the contribution of ancient Bharatiya Jurisprudence towards the understanding of modern law and jurisprudence cannot be ignored.