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Another somewhat revolutionary attitude can be noticed in the writings of some jurists of the present century. Adhering to the importance of social customs, they even seek to discard the importance of the Sruti and the Smrti as the sources of the Hindu law. As for example, I may mention the view of Justice A.M. Bhattacharjee, who in his Manmatha Nath Bose Lectures of Calcutta University on Hindu Law and Constitution holds: “The Srutis neither are nor ever were the sources of Hindu Law and the Smrtis also neither are and, in my view, nor were the sources of Hindu Law, but were only the sources of knowledge of the law, the sources being the common customs of the land, which were compiled by the Smrtikaras.”³

Distinguishing the epistemological aspects from their practical application, these thinkers seem to suggest that the theoretical principles, embedded in the Srutis and the Smrtis, are the outcome of the common customs and the actual cases were recorded in those literature and in the Nibandhas.

Even without going into further details I would like to mention that so far as the sources of Hindu law are concerned Manu mentions the role of parisad, whereas Yajnavalkya mentions that which is approved by one’s conscience. Later Smritikaras also admitted, in addition to the primary roots, the contribution of Mimamsa, Nyaya and Puranas in the development of Indian jurisprudence. In the second part of this paper I would like to explore how far the nyayas or the principles of Mimamsa system have contributed to the evolution of Hindu law.
From the foregoing discussion it becomes clear that the influence of Vedic vidhis, Dharmasastric maxims, accepted norms and moral conduct of the people, in conjunction with many other epistemological and axiological doctrines, help to generate the theoretical background, which find their practical implementation in the actual legal principles, which are generally described as vyavahara in the Indian tradition. Such vyavahara refers mainly to the applied cases in distinction from the theoretical concepts like vada, vitanda, nyaya, niti, etc. which in their turn, undoubtedly have some impact on the vyavahara as prescriptive and regulatory principles. Thus, in the case of jurisprudence theory and practice are both interdependent and interwined. While principles are generated out of insight and experience, these maxims regulate and enrich the worldly activities. It may further be mentioned that in contradistinction from tattvajnana, which refers to spiritual consciousness, vyavahara directs our attention to worldly practice.

Regarding the definition of vyavahara, Nilakantha Bhatta in his Vyavahara Mayukha holds it as “an action or operation that facilitates the exposure of the wrong that is not known (at the time when the operation begins as belonging to one) and that pertains to one of the seven persons that have a dispute (about it); or it is an operation in which the plaintiff and the defendant are the agents, in which possession, witnesses and (other) means of proof are applicable (according to circumstances) and which helps the establishment (of truth) in the midst of conflicting alternatives.”⁴ In both Narada and Yajnavalkya Smrtis, we notice that vyavahara has been discussed with respect to the activities of the king as “performance of duty having fallen into disuse, passive law has been introduced, the king as superintending the law is invested with the power to punish.”⁵

We are all aware of the contribution of Manu in this area and in his Manava. Dharmasastra we notice eighteen divisions of subjects of vyavahara: they are (1) non-payment of debts, (2) deposit, (3) sale by one who is not the owner, (4) partnership, (5) resumption of gifts, (6) non-payment of wages, (7) breach of compacts and conventions, (8) rescission of purchase and sale, (9) dispute between master and herdsman, (10) rules about boundary disputes, (11 & 12) harshness of bodily injury and speech (i.e., assault and defamation), (13) theft, (14) violent offences, (15) adultery, (16) duties of husband and wife, (17) partition, (18) gambling and prize fighting. Such discussions cover most of the areas which come under the Indian Penal Code till date and reflect the deep concern o the traditional scholars regarding the practical problems of the lived-world.

It should be further noted that the Smrtisastrakaras were also aware that the vyavahara-s or civil laws cannot be implemented without certain authority and hence are inter-connected with the duties of a king or rajadharma. As we have discussed before, the king or the ruler in the Indian tradition, does not act as the promulgator of law but certainly play a significant part in administering and enforcing the law. He is also entrusted with the power of punishment in the case of avoidance or misuse of those laws. Consequently, the Dharmasastrakaras have also discussed the cases of various sanctions. Sanction, we know, involves penalty or reward regarding the non-compliance or compliance with the laws. In the classical Indian jurisprudence, we thus notice the usages of different types of sanctions for different types of laws. So far as manusyadharma or moral law is concerned the sanction is mainly inner satisfaction and approval of the society. In the case of kratudharma or ecclesiastical law the sanction is imposed by religious bodies or institutions. In the case of vyavaharadharma we notice that, in addition to the moral or spiritual sanctions, there is the punishment of the king or the Court or tribunal, having such coercive power. This shows the vyavahara or application of civil laws is interwined with many other factors and the proper understanding of such system would require broader acquaintance with the Indian socio-political milieu.

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