Discuss the Modern Sources of Hindu Law. Under what circumstances do the courts have the authority to decide for the Hindus on the principles of justice, equity, and good conscience?

Question: Discuss the Modern Sources of Hindu Law. Under what circumstances do the courts have the authority to decide for the Hindus on the principles of justice, equity, and good conscience?

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Answer

The Secondary sources are also known as modern sources of Hindu Law. They came into light during the British era and through the enactment of the Constitution as the concepts related to them were introduced in the Hindu Laws then only. The Modern sources of Hindu Laws are categorized into three parts; Precedents, Legislations, and the Principles of Equity, Justice, and Good Conscience.

Precedent

The doctrine of stare decisis started in the British era. All the cases are recorded and have a binding effect on the lower courts as per the hierarchy of the courts. All new cases are recorded and the justice in them is delivered on the basis of pre-decided cases. These serve as a source of law in need and are referred for the delivery of justice. The doctrine of precedent is used in cases that reflect similar facts or situations to the case in question.

Judicial decisions are considered the most important source of law these days. Also, the judicial decisions are considered authoritative and binding in nature. Today the verdict of the Supreme Court is binding on all the other courts in India and a similar case is with the High Courts of respective states. These decisions act as a source of law for judgment delivery and they also aid in the formation of new laws.

Legislations

Legislations are the Acts of Parliament. The laws made by Parliament after the independence of the country have served as the main and important source of law. After independence, all the laws were codified and they have been governing the various areas of administration and justice. These laws are all codified and are binding in nature. Parliament has the power to enact, repeal, and amend laws as per the need of society. The legislation has introduced a vast range of Hindu laws that are mainly governing the affairs related to the same. And the Hindu laws are governed on that basis only these days.

Principles of Equity, Justice, and Good Conscience

Occasionally the courts cannot rely on the existing laws for the purpose of delivering justice. The principle of equity, justice, and good concise is used in such cases to avoid impartiality. The courts use the norms, basic values, and standards of fair play and propriety in such cases. These principles have been a source of Hindu Law since the 18th century when the British declared it to be used in the absence of laws.

Authority of Courts to use the Principle of Equity, Justice, and Good Conscience

Justice is meant to be served based on fairness and equity, and modern justice believes in being impartial. In the absence of any required law, it is the sense of reasonableness and common conscience that plays a great role in acquiring justice. The principle of equity, justice, and good conscience is based on this belief.

In the Ancient Hindu Law, the concept of this principle was used in its own sense. As the Yajnavalkya said that Nyaya should be the basis of decisions, wherever there are conflicting rules. Gautama Buddha also mentioned that in such distressful situations, the decision should be acceptable if it is given by several people who have knowledge of Shastras.

The concepts of equity, justice, and, good conscience originated from English Laws. The root of this principle under Hindu Laws is considered to be in during the British era. The principle was used in the absence of proper regulations and justice was delivered on the basis of it. The High Courts under British rule established that when the law is silent or absent in any particular issue then that matter will be decided on the basis of the principle of equity, justice, and good conscience.

The same thing is adopted in the Modern Hindu Laws, wherever there is an absence of any personal or statutory law the principle of equity, justice, and good conscience will be applicable.

In the case of Gurunath v. Kamalbhai, [1951 S.C.R. 1135], the Supreme Court held that in the absence of any existing rule of Hindu Law the courts have the authority to use the principle of justice, equity, and good conscience.

Justice should not be denied in the absence of any law or in a situation of distress, and the principles of equity, justice, and good conscience ensure the same.

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