Personal Law: Dharmasastra12a
(Brahminical law, Dharma = law, duty etc., Sastra = science,
knowledge etc.) tolerated diversity, preferring unification by example, instruction and slow absorption rather than by imperative imposition. Initially, British Administration of Hindu law elevated Brahminical textual law over the customary law that was practiced by Indians. To prevail over the written law in British courts a custom must be proved to be immemorial or ancient, uniform, invariable, continuous, certain, notorious, reasonable, peaceful, obligatory and it must not be immoral to an express enactment or to public policy. The difficulties in meeting these requirements combined with the British erroneous assumption that Dharmasastra ruled Indians forced many local customs invalid. The British, with the help of local leaders like Veereshalingam Kandukuri of Andhra, Rammohan Roy of Bengal, etc., encouraged social reform and established firmly British-Indian law much against the local law, e.g., the local Indian customs prohibited divorce and widow remarriage, allowed child marriages and cultural and religious practices such as Sati of Rajasthan State (self immolation of a widowed wife in Rajasthan), but the British-Indian law allowed divorce and remarriage, prohibited child marriages, and banned the practice of Sati.
In their effort to make Hindu law more uniform, certain and accessible to British judges the courts relied increasingly on translations of texts, on digests and manuals, and their own precedents. Introduction of stare decisis diminished the flexibility of Brahminical Hindu law. Slowly the Brahminical law was completely ignored and dependence on the judicial precedent and legislation took over the legal system.
India has no single continent-wide system of caste, kinship, religion, economic activity or land tenure, but now there is an all-India legal system, which handles local disputes in accordance with uniform Indian standards based mainly on common law. The new legal system provides machinery and the ideology for legislation to be enforced throughout the continent. Such a system makes possible unprecedented consolidation and standardization of the Indian societies in general and provides a unifying element in India in a way that neither Brahminical nor Muslim law ever did.
Shariat12b (Muslim law) was limited to Muslims and Muslim kingdoms, for example, erstwhile Hyderabad State. Although, the British India was partitioned purely on the basis of Islam, Indian Union remains to be one of the world’s largest Muslim countries today, with approximately one hundred (100) million Muslims. The government usually does not make any laws to reform Muslim personal law for the fear of hurting the sentiments of Muslims, thereby hurting the political future of the government. Even the judiciary's intervention into affairs of Muslims is considered violation of minority rights. This pampering of minorities by politicians for votes has its impact on modernization of Islamic personal law.
Though the Constitution of India declares that the Indian Union is secular, the government interferes in Hindu customs and practices to modernize and reform the society, just like the British did. This interference sometimes exceeds the limits of reform, e.g., the government of Andhra Pradesh controls the income of temples like Tirumala Tirupati Devasthanam through Devadaya Dharmadaya Sakha (Branch of Temple Income), which is tolerated by Hindus.
i) The Government
ii) The Constitution
ii) The Union v. States
iv) The Judicial System
iv) The Legal System
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