Tracing India’s Constitutional History: Part 2

In the last part, we understood that Dharma was the supreme authority and even the king was subservient to the dictates of Dharma. However, in most circumstances, the king did not have any legislative powers and functioned more like an enforcement authority. This is one of the most fundamental differences in the concept of Kingship between the Indian and the Western models.  Whereas in the western model, the king was the fountain of the three important limbs of the state–the legislative, the executive and the judiciary–the king was only an executive and judicial authority in the Indian model. Laws were those that were laid down by the Dharmashastras. The Dharmashastras not only did not authorize the king to legislate, but also laid down laws regulating the conduct of the king himself.

So what were the sources of law?

Accepted Sources of Law

The Vedas were the primary sources of law. They provided the basic framework around which other smritikaras (law givers/writers of legal, social, ethical and moral treatises) based their principles. Apart from the principles laid down by the smritis, customs handed down across generations were also considered as legitimate sources of law. The great smritikara Manu, says this about the primacy of the Vedas –

Vedolikho Dharmamoolam Smrutishile ca tadvidaam |
Aachaarashvaiya Saadhunam Atmanastushtireva cha ||

Veda is the first source of Dharma. The Smritis, custom handed down from generation to generation by memory, virtuous conduct of those who are well versed in the Vedas, and lastly, what is agreeable to the good conscience, are the other sources of law. 

It must be noted that apart from the Vedas, Smritis and the customs in vogue, general virtuous conduct of those who were well versed in the Vedas and importantly, acts which were agreeable to one’s conscience were considered to be sources of law. Law was never meant to be rigid and watertight; there was always enough room to adjudicate based on the circumstances of the particular case. This principle finds its place even in Yagnavalkya Smriti.

Shrutihi Smrutihi Sadaacharaha Svasya Cha Priyamaatmanaha |
Samyaksankalpajaha kaamo Dharmamoolamidam Smrutam ||

The Vedas, the Smirtis, good conduct or approved usage and what is agreeable to conscience proceeding from good intentions, are the sources of law.   

Rigid yet flexible – this is one of the foremost principles of present day constitutional jurisprudence. It is clear that the Dharmashastras had clearly given effect to this principle from the earliest of times. This scope for adapting to new situations was a unique feature of the Indian model of jurisprudence, as most of the early rules of law across other civilizations suffered from extreme rigidity. Also, the flexibility of accepting custom as a legitimate source of law contributed to the wide diversity we see in the custom-based legal principles observed in the country. Despite having an overarching legislation in the form of the Vedas, there was a great deal of decentralization of the justice delivery system. This prevented homogenization of laws and gave enough room for diversification by accommodating various local customs evolved to suit the local circumstances. However, this diversification brought with it the problem of multiplicity of laws; thus a clear hierarchy of laws had to be expounded. 

Hierarchy of Laws

It was made clear that the highest authority was that of the Vedas. All other sources of law had to be subordinate to it and they could not be in contravention of any principle laid down by the Vedas. This is how Vyasa, one of the greatest Smritikaras, explains this hierarchy of laws:

Shrutismruthipurananam Virodho Yatra Drushyate |
Tatra Shrotam Pramanantum Tayordvaidhe Smutirtvaraa ||

Whenever there is a conflict between Shruthi and Smritis and Puranas, then what is stated in Shruthi should be taken as authority. When there is conflict between Smritis – principles of equity as determined by popular usages shall prevail.

The hierarchy was clear – the Shruti was higher than the Smritis; the Smritis were higher than the Puranas and the principles of equity superseded all. It was very much like the present day system, where the Constitution is higher than other legislation; by-laws and rules are subordinate to the mother legislation and finally, principles of natural justice have overriding powers over all of these.

But what if the dictates of the sacred law (smritis) were at variance with the dictates of prudence? What if they were impossible to put into action on the ground? What should be done in such circumstances? The Narada smriti answers:

(1)  When the rules of sacred law and the dictates of prudence are at variance, the King must discard the dictates of prudence and follow rules of sacred law.

(2)    When it is impossible to act upon 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.

Though the king was not given scope for discretion in such circumstances, he had the power to adopt a custom founded on sound reasoning. This was in effect, putting collective wisdom over that of an individual’s.

Further, in circumstances where the Shruti or the Smriti didn’t say anything on the subject, what was the course open for the king? In matters not covered by the sacred laws, the king had to adjudicate the matters before him based entirely on the facts and circumstances of the case, by following the dictates of his conscience after weighing all the judicial principles in vogue.

Yatra Chaite Hetavo na Vidhyante tatra paarthivavachanaanirnayaha|

In cases where no principle of law is found in the Shruti, Smritis or customs, the king should decide according to his conscience.

This is similar to the principle in modern law which authorizes the court to decide according to justice, equity and good conscience in matters not covered by any specific provision of law.

In cases where it was felt that certain laws were not suitable for the changing needs of the times, they could be amended and/or written anew to suit such needs. The power to decide complicated questions of law by resolving the conflicts or to lay down a new legal provision was vested with an assembly of persons with prescribed qualifications, called the Parishad. It is quite evident from the aforementioned discussions that people had the right to evolve laws and systems which they considered the best for the society.

According to Justice Rama Jois:

… Narada, Gauthama and Brihaspati recognized the right of the people to evolve and accept by consensus and practice any changes in the law which were good for the society though contrary to written texts. This latitude gave sufficient scope for adjusting the law so as to suit the changing needs of the society, and was fully utilized by the later commentators.

Laws never were meant to bog down the spirit of man. Laws had the flexibility to meet the changing aspirations and needs of a society. However, all the changes were brought within the larger framework of morals and ethics as laid down by the Vedas. The need for laws to be flexible to meet the changes in the times was recognized by the founding fathers of our Constitution.

Speaking on the need for the Constitution to be flexible to meet the aspirations of the people, Jawarharlal Nehru on 8 November 1948, said:

… A Constitution if it is out of touch with the people’s life, aims and aspirations, becomes rather empty: if it falls behind those aims, it drags the people down.  It should be something ahead to keep people’s eyes and minds made up to a certain high mark…Remember this that while we want this Constitution to be as solid and as permanent a structure as we can make it…there should be a certain flexibility.  If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people.

After the Constitution came into force, it was required to be amended within two years.  In the course of his speech on the Constitution (First Amendment) Bill, 1951, on 2 June 1951 Nehru once again repeated his views on the need for the Constitution to be amenable to amendment. He said

 … A constitution which is unchanging and static, it does not matter how good it is, but as a Constitution it is past its use. It is in its old age already and gradually approaching its death.  A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable…  Therefore, it is a desirable and a good thing for people to realize that this very fine Constitution that we have fashioned after years of labour, is good in so far as it goes, but as society changes as conditions change, we amend it in the proper way.  It is not like the unalterable law of the Medes and Persians that it cannot be changed, although the world around may change.

More than 60 years after adopting our constitution, we have amended it more than a hundred times. Whether all the amendments have bettered the interests of the nation is a debatable question. But what remains undeniable is the fact that this document has withstood the pulls and strains of running a vast and diverse country like India, and has functioned as the fulcrum around which the large governmental machinery has functioned.

Back to the Dharmashastras, we can briefly examine the legal literatures of the time. Who were these smritikaras? How many smirits were recognized? What facets of a person’s life did the smritis regulate?

The next part will examine these questions.

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