Dharmashastras
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Dharmashastras and Customs As Valid Sources For Modern Law


The sacred temple of Swami Ayyappa at Sabarimala is under the danger of defilement due to the over-eagerness of a ‘secular’ State to impose its ‘Constitutional Morality’. The fundamental rights of millions of women devotees of the shrine have been ignored to facilitate the entry of a few non-believers. While the instruments of ‘Constitutional Morality’, ‘discrimination’ and ‘equality’ have been used in arguing against the practice of not allowing women aged 10-50 to enter the temple, the arguments about the traditional and ancient customs and rituals of the place have been completely ignored.

This brings forth an important question. What should be the law on the issue of customs and tradition in religious practices? Increasingly, the judiciary is taking a stance that only those practices that are ‘essential’ to a religion shall be offered protection. And the definition of what is essential is left to the judiciary itself! The current interpretation is that, at the minimum, the practice in question must be defined (written/codified) in the key doctrinal texts of the religion.

It takes very little common sense to figure out that such an injunction is most harmful to Sanatana Dharma, a religion of innumerable traditions, rituals and customs whose source has been traditional and hereditary transition. Though a few of these rituals may have found their way into some books, most of them can never be traced back, in their exact form, to any of the primary doctrinal texts such as the Shrutis or even Smritis.

One of the key principles of Sanatana Dharma is to offer a broad umbrella of philosophical and spiritual constructs. Each individual, family or community is free to evolve and practice its own methods as long as there is conformance to the fundamental principles of Dharma. Such being the basis, most of the customs and rituals naturally would not be adequately documented.

Like mentioned above, it is becoming increasingly difficult for the adherents of Sanatana Dharma to freely practice their religion in Independent India. Be it Jallikattu, Dahi Handi, Naga Panchami, Deepavali or Sabarimala yatra, the State has intervened and imposed restrictions. It has banned the traditions in many cases.

But, is this how it always was? Was custom and tradition never valued in India from a legal standpoint?

The answer is a resounding NO! Let us take a look at two systems that were prevalent prior to our Independence. The first is the traditional Dharma based law systems of ancient and medieval Bharata. Let us broadly categorize this as the system prevalent, amongst Hindus, prior to the British takeover of our country. The Dharmasutras, Smritis, Arthashastras and other documents were the basis for law and jurisprudence under this system.

The second system was the jurisprudence of the British. In this piece we consider the 90 years after the war of Independence of 1857 to study law developed by the British vis a vis local customs. We attempt to study this period considering that the British being a foreign ruler, and being adherents of an Abrahamic and anti-pagan belief, what was their approach towards customs and tradition, from a legal point of view?

Sources of Dharma

In the present article, the connotation used for the word Dharma is ‘law’ due to the obvious focus of the write-up. Dharma, of course, is a much bigger concept and its wider discussion is out of scope here.

The Smritis of Yajnavalkya and Manu offer the most succinct definition of what constituted valid sources of Dharma.

Yajnavalkya says:

shrutih smrutih sadacharah svasya cha priyamatmanah |

samyaksankalpajah kamo dharmamulamidam smrutam || 1  – 1  – 7 ||

“The Shrutis, Smritis, virtuous practices and conduct, what is dear to the self, and desire that arises out of noble thoughts, are the sources of Dharma”

‘Sadachara’ or virtuous practices are therefore accepted by this important and ancient Smriti-kara as a source of law. Similarly, Manu declares:

vedah akhilo dharmamulam smrutisheele cha taddidam |

acharaschaiva sadhunamatmanastushtireva cha || 2 – 6 ||

“Vedas are the sources of Dharma;  So are the injunctions of the smritis; The virtuous practices of the noble and what is agreeable to conscience are the other (valid) sources of law”

Thus, at the very outset itself, our traditional law systems recognized good conduct and practice as valid law. The Smriti of Gautama elaborates this further:

tasya cha vyavaharo vedo dhamashastranyanganyupavedah puranam | desha jatikuladharmaschamnayairaviruddhah pramanam || 12 – 19,20 ||

“Injunctions found in the Vedas, Vendangas, Puranas, and customs of a country or family, and racial usages, not incompatible with those injunctions, are the factors which should determine the decision of a royal tribunal (in the administration of justice)”

The above injunction makes it very clear that the customs and traditions of any place or community is equally valid as a source of law and decision making. The Pitamaha Smriti goes one step further and declares that whenever there is a conflict between written text of law and usage, the latter will prevail.

yadyadacharati shreshto dharmya va adharmyameva va |

kuladideshacharanaccharitram tatprakirtitam || Smriti Chandrika – quoting Pitamaha ||

“What is the best practice should be declared to be the one for usage, irrespective of whether it is (in sync with) law or not, if the reason is that it is practiced by families and the countries”

The Narada Smriti, another of the Smritis that elaborates greatly on jurisprudence, also gives high importance to customs over written law.

nyayapetam yadanyena rajna ajnanakrutam bhavet |

tadapyanyayavihitam punarnyaye niveshayat || 15 – 40 ||

“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 decides everything and over-rules the sacred law”

The commentator of Narada Smriti, Asahaya, in fact states that based on the above injunction, whenever a conflict arises, it is the custom or usage that should prevail over written law[1].

The most significant insight into the importance given to customs comes, again, from Yajnavalkya. He emphasizes this so much so that even when a King has conquered a foreign land, the customs and the traditions of that land are not to be trampled upon!

yasmindeshe ya acharo vyavaharah kulasthithih |

tathaiva paripalyosau yada vashamupagatah || 1 – 13 – 343 ||

“Even when a foreign land is under control, the customs, rules of trade and of families must be maintained as they were”

The Brihaspati Dharmasutras elaborate on what is bound to happen if the virtuous customs of people, in vogue since long, is disregarded by the rulers.

Time-honoured institutions of each country, caste and family should be preserved intact, otherwise the people would rise in rebellion; the subjects would become disaffected towards their rulers and the army and treasure would be destroyed…[2]

Vasishta and Manu Smriti clarify the process to be followed in the absence of clear written text on any particular legal aspect. Once again, customs are what are declared as valuable under such circumstances. Manu says:

jatijanapadandharmanshrenidharmanscha dharmavit |

samikshya kuladharmanscha svadharmam pratipadayet || 8 – 41 ||

“(A King) who knows the sacred law, must inquire into the laws of castes, of districts, of fluids and of families and settle the particular law of each”

sadbhiracharitam yatsyaddharmikaischa dvijatibhih |

taddeshakulajatinamaviruddham prakalpayet || 8 – 46 ||

“What may have been practised by the virtuous, by such twice-born men as are devoted to the law, that he shall establish as low, if it be not opposed to the (customs of) countries, families and castes

The trust in the wisdom of the people who ended up creating a custom was so high that traditions were used as a method to break a conflict between different laws (Smritis). Thus, whenever two laws conflicted, Yajnavalkya, says:

smrutyorvirodhe nyayastu balavan vyavaharatah | 21-1 |

“When two Smritis conflict, principles of equity as determined by popular usages shall prevail”

From all the above references above, we can safely conclude that our traditional legal systems recognized the fact that Sanatana Dharma was a system that gave rise to a wide variety of customs, traditions and rituals and hence it was of utmost importance to treat them as valid practices and as accepted sources of law.

Customs and British Jurisprudence in India

As the British started to rule more and more territories in India, they setup a legal system that ended up adjudicating a number of disputes between Indians. Many of these issues touched upon Hindu religious issues and brought in questions of traditions and customs. A number of these cases reached the highest level of British jurisprudence – the ‘Judicial Committee of the Privy Council’.

The remarkable thing one can notice when the cases and judgements of the British rule in India is studied is the fact that they clearly recognized the importance of customs, rituals and usages. The first thing they accepted (at least in legal transactions) is that the Hindu religion – Sanatana Dharma – was a pagan practice that inevitably led to local traditions and rituals – and they granted legal sanctity to the same!

As early as in 1868, in the ‘Collector of Madura vs Mootoo Ramalingam’ case[3], the Privy Council declared

“clear proof of usage will outweigh the written text of law”

This principle of the British judiciary evolved and soon, they put together a framework for evaluating whether or not a custom/usage should hold sway over written law. In spite of coming from a foreign civilization, with belief in an Abrahamic faith, at least the British jury accepted that (a) Hindu religion is primarily based on customs and rituals and hence it needed to be accepted and held as valid (b) Due to language and culture issues, and not being fully educated in the traditional systems, they were not fully competent to adjudicate these matters.

In the ‘Rungama vs Atchama’ case[4], the Privy Council recorded this confession about their inherent disqualification to judge Hindu religious matters, and hence accorded primacy to customs and usage.

At the same time it is quite impossible for us to feel any confidence in our opinion, upon a subject like this, when that opinion is founded upon authorities to which we have access only through translations, and when the doctrines themselves, and the reasons by which they are supported, or impugned, are drawn from the religious traditions, ancient usages, and more modern habits of the Hindoos, with which we cannot be familiar..

Thus we see that while they did made mention about the need for a “doctrine”, the source for such a doctrine could very well be a tradition or an ancient usage.

Once such a recognition was granted to customs and usages as valid sources of law, the British jury quickly got down to coming up with a framework (a natural and sensible response, one would say) for adjudicating matters which involved custom.

In 1872, in the ‘Ramalakshmi Ammal vs Sivanantha Perumal Sethurayar’ case[5], the Privy Council made the following observations.

It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends

This led to the formation of a well-defined series of tests for matters that involved customs and rituals.

For any custom to have an over-riding effect, the custom must be [6]

  • Ancient
  • Reasonable and not opposed to public policy
  • Certain in nature
  • Continuous (uninterrupted)
  • Practiced or followed by persons in a locality or by a group
  • Uniform and obligatory

One can easily see that the presence of such a framework becomes especially useful when the adjudicators of a Hindu ritual are from a different civilizational background, or coming from a ‘secular’ background (such as our present Supreme Court).

In the present case involving the Sabarimala temple also, applying the above tests would have meant that the traditional practice would necessarily have been allowed.

For e.g. the Sabarimala practice of restricting women aged 10-50 is undertaken in one single temple in the entire country. It is not a regular practice in Hindu religion. It is not practiced widely even in Kerala state. Further, the practice does not exist in other Ayyappa temples where he is not worshiped as a ‘naishtika brahmachari’. The custom is therefore eminently reasonable.

Due to the wide acceptance of this custom, the Kerala State Government had framed such a restriction into the Act governing the Dewaswom temples. Hence the custom was very much in tune with public policy.

There are a number of temples in India where men are not allowed entry due to the specific beliefs of those temples. With this, it becomes that the Sabarimala practice has not been instituted with any sense of discrimination against women. It is therefore uniform in nature. It is also uniform because it is applicable to ALL women in that age bracket, without any sort of exception.

Thus, under the framework of the Privy Council, the Sabarimala issue would have been an easy one to decide.

Religious Customs in Post-Independence India

After the adoption of our Constitution in 1950, Indian citizens expected that under a democratic government, freedom of religion would be respected greatly. Articles 25 and 26 of our Constitution were of course put in place to guarantee, in theory, the right to “freely” practice religion. However, in the past 70 years, Indian jurisprudence has increasingly curtailed the rights of citizens in matters of religious practices.

In particular, the Indian State has steadily delegitimized Hindu customs and rituals as a valid source of law. In the Shirur Mutt case[7], the Supreme Court of India introduced the notion of identifying what practice is religious and what is non-religious. The intention here was to identify any economic, political or other non-religious activity being performed under the garb of religious practice. This position of the Court started getting interpreted liberally over the years and by the time of ‘Acharya Jagadeeshwarananda vs Commisioner of Police Calcutta[8]’ case, the Supreme Court said it will determine what ‘essential’ practices of a religion are.

“Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion”

Note that the concept of allowing only ‘essential’ practices of a religion runs orthogonal to the promise of allowing religious practices to be undertaken ‘freely’ as given in Article 25(1) of the Constitution!

After deciding thus, the Courts went on to arrive at a very simple, and unrealistic, definition of what constitutes an ‘essential’ practice. The practice, the Courts said, would have to be encoded in the texts of the religion!

In other words, the Indian State declared that customs, rituals, traditions and hereditary practices that are almost never encoded in the primary doctrinal texts of Sanatana Dharma would cease to be a valid source of law.

Take for instance the recent Sabarimala judgement[9]. The Court’s reasoning for not considering the practice at Sabarimala as essential was as follows:

“In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion”

(It is a different matter that one of the respondents had in fact placed on record a few textual evidences. The larger point here is the ignoring of customs and rituals as a valid source of law)

It is also important to note that due to the absence of any proper framework to evaluate even the questionable policy of determining essential practices, there is no easy way to figure out the basis on which such classification is done.

For e.g. in the same Sabarimala judgement, the Court highlighted a number of previous case laws which had declared that only essential practices be offered protection. It then said the following:

In the light of the above authorities, it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative

There was no discussion involving any religious text or book. There was no analysis if the practice could have been arrived at from a fundamental, more common and documented, doctrine. The practice was deemed as unessential as a matter of opinion.

Contrast this with the six-step framework developed by the British Privy Council to aid in matters involving religious practices.

Conclusion

For many thousands of years, the religious customs of our Sanatana Dharma were considered as a valid source of law. Even during the rule of a foreign civilization, the same policy was upheld. However, in just a matter of 70 years, the secular Indian State has derecognized traditional customs and usages as being a valid source, and withdrawn the protection to such practices.

It is time the Hindu community makes the powers that-be realize the folly of such a path and force them to take corrective measures. The Constitution ought to make an explicit provision for protecting traditional dharmik practices, rituals and customs.

References:

[1] Legal and Constitutional History of India, Justice M Rama Jois, Universal Law Publishers, 2016, pp 16

[2] Epochs in Hindu Legal History, Dr U C Sarkar, Vishvesharanand Vedic Research Institute, 1958, pp 40

[3] Moore’s Indian Appeals, Volume 12, Collector of Madura vs Mootoo Ramalingam, pp 397

[4] Moore’s Indian Appeals, Volume 1, Rungama vs Atchama, pp 97-98

[5] Moore’s Indian Appeals, Volume 14, Ramalakshmi Ammal vs Sivanantha Perumal Sethurayar, pp 570

[6] Family Law in India, K B Agrawal, Kluwer Law International, pp 56

[7] The Commissioner, Hindu..  vs Sri Lakshmindra Thirtha Swamiar, https://indiankanoon.org/doc/1430396/

[8] Acharya Jagadeeshwarananda vs Commisioner of Police Calcutta, https://indiankanoon.org/doc/798012/

[9] Indian Young Lawyers Association vs The State Of Kerala on 28 September, 2018, https://indiankanoon.org/doc/163639357/

 


Hariprasad Nellitheertha

1 Comment

  1. To understand Sanathana dharma we need deep understanding of its structure, otherwise we will end up like our SC judges.

    We need to ensure who ever wants to bring changes need to be competent enough and have a deep understanding of its practices, we can’t allow any individual or institutions to play around that will leave a big and ever lasting damage to the present situations and for our future generations. We as a representatives of Bharatavarsa need to ensure no plays or damages our future generations.

    Need of the hour is united institutions under the leadership of committed and competent committee which will ensure and save guard sanathana dharma.

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