JURISPRUDENCE - I

FINAL PROJECT

Research Topic: YAJNAVALKYA AS A LEGAL

POSITIVIST

SUBMITTED TO - SUBMITTED BY -

Dr. Manoranjan Kumar Kumar Sambhav

(Faculty Of Jurisprudence) Roll No.: 1536
Semester: 5th
Session: 2016-2021

CHANAKYA NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere and

profound gratitude to my guide and mentor for this subject
Dr. Manoranjan Kumar for his guidance and constant
encouragement throughout the course of my work. He gladly
accepted all the pains in going through my work, and
participated in enlightening and motivating discussions, which
were extremely helpful.
I humbly extend my words of gratitude to other faculty
members, teachers and administration of the department for
promising me the valuable help and time whenever it was
required.

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 CONTENTS:

Chapters Page
No.

1. Introduction: Yajnavalkya Sage…………………………….………5

2. Sources of Ancient Hindu Laws…………………….…………..….7

3. Legal Positivism : Meaning, Nature & Scope…………………….11

4. Yajnavalkya’s theory of positivism and its modern Indian applicability

……………….………………………………………………………...16

5. Conclusion & Suggestions………………………….…………….21

#BIBLIOGRAPHY

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AIMS & OBJECTIVES
 To Study about the Evolution of Law through Yajnavalkya Smriti
 To do a comparative study between smriti of Yajnavalkya and other English
positivist.
 To Study Modern applicability of Yajnavalkya Smriti Concepts

HYPOTHESIS

The provisions of Yajnavalkya Smriti has No applicability in Modern Legal

system.

METHODOLOGY

The researcher has primarily relied on the “Doctrinal Methods”. Various Online
and Offline Sources were used while preparing this project.

SOURCES OF DATA:
Offline Source:
Books, Articles, Reports etc.

Online Source:
Manupatra, SCCOnline, Westlaw Etc

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 1. INTRODUCTION: YAJNAVALKYA SAGE

Yajnavalkya is a famous personality in Indian Literature. He is said to have been a sage present
in the court of King Janaka of Mithila. He is also mentioned in the Mahabharata. His name is
closely connected with the Sukla-Yajurveda. Some hold that the Vajasaneyi Samhita of the Sukla
Yajur Veda is known after his surname Vajasaneeya. This Smriti or code of sacred law is also
known after his name Yajñavalkya. This Smrti seems to be later than Manu-Smrti but is widely
acknowledged as an authoritative Code of Hindu  Law. The interpretation of the Mitakshara
commentary by Vijñanesvara on this Smrti, is readily accepted by Indian Law Courts.

Yajnavalkya is the name of a sage and teacher who was one of the earliest Hindu and yogic
philosophers and who later became a wandering ascetic. Some believe he was an incarnation of
the Hindu god, Brahma. His teachings are recorded in "Shatapatha Brahmana" and
"Brihadaranyaka Upanishad" which dates to about 700 B.C.E.1

Yajnavalkya is considered one of the earliest philosophers in recorded history, after Aruni.
Yajnavalkya proposes and debates metaphysical questions about the nature of existence and
impermanence, and expounds the epistemic doctrine of neti neti ("not this, not this") to discover
the universal Self and Atman. His ideas for renunciation of worldly attachments have been
important to Hindu sannyasa traditions.

Yajnavalkya is credited for coining Advaita (non-dual, monism), another important tradition
within Hinduism. Texts attributed to him, include the Yajnavalkya Smriti, Yoga Yajnavalkya
and some texts of the Vedanta school. He is also mentioned in various Brahmanas and
Aranyakas.2

1
http://www.hindupedia.com/en/Yajnavalkya
2
Vasu, S.N. , The Sacred Book Of Hindus, Vol. XXI (1918)

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Though written after Manusmriti, this is a very important smriti. Its language is very direct and
clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king
to be below the law. He considers law to be the king of kings and the king to be only an enforcer
of the law. He did not deal much with religion and morality but mostly with civil law. It includes
most of the points given in Manusmriti but also differs on many points such as position of
women and sudras. He was more liberal than Manu.
Vijnaneshwar's commentary 'Mitakshara' on this smriti, is the most important legal treatise
followed almost everywhere in India except in West Bengal and Orissa.The text is in classical
Sanskrit, and is organized in three books. These are achara-kanda (368 verses), vyavahara-kanda
(307 verses) and prayascitta-kanda (335 verses). The Yajnavalkya Smṛti consists of a cumulative
total of 1,010 Shlokas (verses), 3and its presentation is methodical, clear and concise instead of
the poetic "literary beauty" found in Manusmriti according to Robert Lingat.

Various states say that this treatise, like others in Dharmashastras genre, is a scholarly tradition
on Dharma rather than a Law book, as understood in the western languages. In contrast, Robert
Lingat states that the text is closer to presenting legal philosophy and a transition from being
Dharma speculations found in earlier Dharma-related texts.

His name stands distinguished both in the srutis and in the Smṛtis. Yajnavalkya is especially
known for his unsurpassed spiritual wisdom and power. The recipient of the Sukla Yajurveda
Samhita from Bhagavan Surya, the revealer of Brahma Jnana to Janaka, Maitreyi and others,
Yajnavalkya hails supreme among sages of sacred memory. Yajnavalkya was also a great
Karmakandi. He caused many Yajnas to be performed and himself became the Acharya of those
great Yajnas.

Yajnavalkya was the man who separated law with morality and was Ultimately a Positivist.
4
Way back from the period of Analytical Positivist like John Austin, H.L.A Hart, Hans Kelsan,
Yajnavalkya had the basic ideas of positivism found in Yajnavalkya Smriti.

3
Mitakshara By Vijnaneshwar
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 2. SOURCES OF ANCIENT HINDU LAWS

The Hindu Law is credited to be the most ancient law system which is approximately 6000 years
old. The sources of Hindu Law can be kept under two headings:-5

1. Ancient or original sources:

According to Manu there are four sources of Hindu Law as per following details, in
addition to these four there was also that what is agreeable to one’s conscience such as
Shruti, Smriti, Digest and Commentaries, Custom and Usages.

 SHRUTI:-  The name “shruti” is derived from the word  “sru”  which means to hear and
it signifies what is heard. Shruties are considered as the primary and paramount source of
Hindu Law. The shruti consist of the four Vedas and Upanishads dealing with the
religious rites that contain the meaning of attaining true knowledge and moksh as
salvation.  P.V.Kanne in his book, “History of Dharamshashtra” said that,” If we want to
see religion (Law) in a proper way, then we should analysis Shruti and Smritis.”

 SMRITIS :- Means ,”What was remembered” thus smritis were Smritis  is known as
golden era, because it is era when well organised dependant on the remembrance of saints
and the era of creation of and serial wise development of Hindu Law started. It is the
second important source of Hindu Law. It is of two types first is prose style and the other
is of poetry style. Smritis are divided into two : a. Dharam Surtra:- Dharam sutra are
famous of Gautam, Buddhyan, Apastamb, Harit, Vishnu and Vasith. b. Dharam

5
“ ANCIENT INDIAN JURISPRUDENCE “By Justice Markandey Katju,; Speech delivered on 27.11.2010 at Banaras
Hindu University, Varanasi

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 Shashtra:- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu
smritis made of 12 chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts
and is extremely clear, brief and organised. Narad Smriti being the last smiriti is such
first legal code which mentions subjects related to Judicial process, courts and Judiciary.

 DIGEST AND COMMENTARIES :- These are the third important source of Hindu Law.
The commentaries through professing and purporting the rest on the smrities explains
modified and enlarged tradition recorded there to bring them into harmony and
accordingly to prevent practices of the day. In Atmarao v. Bajirao -1935: It was held that
Digest writers and commenter’s has given the statements of Smritis  which can fulfill the
present requirements & ahead from smrities. The period of the commentaries and digest
is between 700 AD -1700Ad. The last commentary was Vaijanty written by Nand Pandit.

 CUSTOMS AND USAGES: – These are considered an important source of Hindu Law.
Narad Smriti says that, “Customs are powerful” they are above the religion. D.F.Mulla
says that, “Among the three sources of Hindu Law Custom and Usage are the one.”
According to Holland, “Custom is a step of generally followed conducts as a way is
created over gress by repeated walking similarly custom is created in accordance to the
conduct of everyday life.”6

In Collector of Madurai v. Mottaramlingam –1868: Privy Council held that in Hindu Law the
clear proof of customs shall be more relevant then the basic epics of law.” Similarly in Harparsad
v. Shiv Daya -1816: It was said that, “the custom is family or particular class or area owing to a
long tradition.”

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Although codified law has given place to custom, but it is limited. Codified Hindu Law
recognises custom only when it has been expressly given a place. Custom under Hindu Marriage
Act 1955 can be applied over two topics

(i.) Any Marriage may be solicited by the customary tradition of the parties.;  

(ii.) Divorce can be obtained be prevailing custom or usage and a married male of
female above the age of 15 years can be adopted as customary rules.

The Judicial Committee explained that, “Custom is a rule which in a particular family or in
particular district has from long usage, obtained the force of law.  Hindu sages have recognized
good custom binding on the Hindu. Manu says, “In memorial is transcendent Law.”

Custom is divided in three parts:- Local custom, Class custom and Family custom.

2. Modern Sources:

Following are the modern sources of Hindu Law such as Equity, justice and good
conscience, Precedent, Legislation

 EQUITY, JUSTICE AND GOOD CONSCIENCE:- In India the origin of equity is traced
the Hindu period when jurists explained the old law and gave new rules of interpretation
and equitable solutions in cases of conflict between the rules of various law. In case of a
conflict between the rules of smrities that should be followed this is based on reasons,
justice and principles of equity. In view of the above observations and its practical
application it will not be incorrect to mention equity justice and good conscience as the
next source of Hindu Law. Actually Britishers not only established a judicial system in
India but also facilitated though the High Court charters that wherever there is lack of
lawful rules, their decision should be on the principles of equity, justice and good
conscience. In Gurmukh Singh v. Kamla Bai -1951: It was held that, “ Where there is

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 lack of rules of Hindu Law over any subject, there court should pronounce their decision
on the basis of principle of equity, justice and good conscience.

 PRECEDENT: –

It is an important source of law. It means he Judicial decision over any disputed matter
which shall be guideline for the disposition of future similar disputed matters.  Generally
the decision of Supreme Court, High Court, Privy Council have the effect of precedent
over the subordinate court. The importance of Precedent as a source of Hindu Law can be
understood from the example that if we have to look into the importance of custom and
Usages in Hindu Law, then we shall have to analyse the case:

Collector of Madurai v. Mottaramlingam, it is pertinent to mention here that there are

certain rules for the application of precedent like :-

i.)The decision of Supreme Court is binding over all the subordinate courts.; 

ii.) The decision of Supreme Court is binding to its subordinate courts.;

iii). The decision of Privy Council is binding over all High Courts provided that it has not
been over ruled by the Supreme Court.

 LEGISLATIONS: – The last important source of Hindu Law is the legislation. Their
source has originated after the establishment of English State in India, when English
rulers started enacting several laws.  Laws were enacted in accordance to the state, time
and circumstances, there were amended too.

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 3. Legal Positivism : Meaning, Nature & Scope

Legal positivism is regarded as one of the most influential schools of thought in legal
jurisprudence around the world. This theory was developed to a great extent by jurists such as
John Austin and Jeremy Bentham around the 18th and 19th century. Subsequently, this school of
thought was taken forward by influential jurists such as Herbert Lionel Adolphus Hart and
Joseph Raz. The above jurists have significant differences in their views but the common idea
that all of the above jurists have is that they analyse law as it is.7

Therefore, they have the common objective of helping people understand the law of the land as it
is and not as it ought to be. Therefore, the legal positivist school only aims to identify the law as
it is laid down by a superior body and not how it should have been.
Moreover, the other common theme between all the jurists of the legal positivist school was that
they kept law and moral principles on a completely separate footing. The legal positivists
believed that law had no relation to the moral principles.

However, they were of the opinion that law often reflects the morality of the people that it
controls. Therefore, they said that the law does not have to be in consonance with the principles
of morality and ethics and rather law is what is laid down by the superior body.

These Provisions were similar with the Basic Ideas of Law given by YajnaValkya long ago.
He divided law into 3 parts:
1. Achara (About Religion & Morality)
2. Vyavahara (About Law)
3. Prayaschitta (About Penance & Punishment)

7
R. Campbell, The Philosophy of Positive Law (1879)

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Yajnavalkya was the first person who separated Law & Morality in Ancient Hindu Texts.
Yajnavalkya is also believed to be a positivist. However, there is a conflict of ideas regarding
this.

John Austin (1790-1859) was a prominent British legal philosopher who takes the credit for
formulating the first systematic alternative to both ‘natural law theories of law’ and ‘utilitarian
approaches to law’. Austin’s theory of law is a form of analytic jurisprudence. John Austin is
best known for his work related to the development of the theory of legal positivism. Austin
made
attempts to clearly separate ‘moral rules’ from what is known as the ‘positive law’

There exist primarily two kinds of authority in Austin’s legal universe: the authority of the
Christian scriptures and the authority of the political superior. Divine law is understood to be t
hat which is set by God himself for the creatures. 8 The scriptures are known to be the source of
divine law. The political superior is the direct source of human law properly so called which
Austin termed as ‘positive law. As per Austin, positive law was the exclusive concern of
jurisprudence whereas the law of god was primarily the subject of theology. A further
subdivision of positive law was introduced by Austin. Austin went on to distinguish laws set
directly by the political superior or what was understood to be as sovereign from the laws which
were set by private citizens in quest of their legal rights. The laws made by the ones authorised to
do so or the subordinate political superiors like ministers, judges etc constitute as the laws set
directly by the sovereign.
Austin defined positive law as comprising of commands of a political sovereign backed by
sanctions on the ones who disobey the commands. There are primarily three key constituents of
this concept of law:9
1. Political sovereign
2. Command
3. Sanction

8
John Austin, The Province of Jurisprudence Determined (1832)
9
John Austin, 1832: Lecture V, p. 163 (1995)

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According to the Bentham, a sovereign is the highest superior body which does not owe any
obedience to any other body. It is the sovereign which claims habitual obedience from the people
living in a politically organized group Therefore, the sovereign does not owe any allegiance to
any other body or group.10 It is the will of this sovereign body which is known as law. Bentham,
however, states that the power of the sovereign is not absolute as is the view of John Austin.
Bentham is of the view that the power of the sovereign can be limited as well asdivided.
Therefore, he is of the opinion that a sovereign can, by his own will, limit his own powers by
entering into agreements with certain external agencies which would put restriction on the power
of the sovereign. Jeremy Bentham’s concept of sovereignty is not absolute in nature and can be
restricted to a certain extent. Another important feature of law according to Bentham is that it
should be backed by sanctions.

Bentham was against the idea that scriptures were a source of law; he believed that the will of
God is unknowable. Conversely, Austin regarded the law of God as revealed in the scriptures to
be a primary source of moral rules. The definition of the term sovereignty as provided by Austin
talks about external aspects as well as internal aspects of sovereignty while the definition given
by Bentham speaks only about internal aspect of sovereignty. Austin only talks about the
negative aspect of the sanctions; as per Austin, you ought to follow the law, but if you happen to
break the law, you will be punished accordingly.
Bentham believed that as every man wants to increase his pleasure and diminish pain and thus to
encourage people to be more law abiding and discourage people from breaking the law there
should be the inclusion of awards as well as punishment for people depending upon their
behaviour.
As per Bentham, a sovereign by its own will, may put limits on its sovereignty by entering into
agreements with external agencies, but Austin is opposed to this placing of limits on sovereign’s
powers and does not allow for it. 11

Austin’s notion that all laws come from the sovereign may be true theoretically, and laws in our
country (i.e. statue made laws at least) are a result of the act of the politically superior that is the
10
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008)
11
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legislators but the same is not true practically as they are not a reflection of the will of the
superior in the real sense. Though many laws come directly from the parliament, but they merely
reflect the desire of these politicians to maintain support of the major organized groups in the
country and to meet their interests satisfactorily. Law emanating only from the sovereign may be
fit for a totalitarian regime like Pakistan where the government can use its monopoly of law
making and executive powers for the re shaping of laws in disregard of the democratic processes,
but in a democratic country like India the same is not possible. The interplay between the public
opinion and state action has become very complex these days whether we are concerned with the
abolition of dowry, the creation of legal remedies against administrative action or the
introduction of a new ground of divorce there is always some interrelation between the state
machinery that produces these changes and social opinion of the community in which they are
intended to operate. Public opinion on vital issue is expressed through the elected representatives
in the house, and also through public discussion in press, radio, public lectures. 12 It can thus be
concluded that legislative practices in our country provide for opportunities to the public to
participate in the legislative activities of those to whom these powers are delegated.

According to Austin sovereign is the person who has the last word in a particular connection.
13
But the issue is that how can one determine the ‘highest authority’ in a democratic country like
India , to identify the strongest power would involve an investigation of a lot of legal as well as
well extra-legal forces which determine how a state shall operate. Who is the highest authority, is
it the masses who choose the government, is the legislators who finally make laws, is it the
judiciary that has the power to strike down laws made by the parliament, is it the executive as
laws that are enforced are selected by administrators today, what they consider worthy of
implementing is duly enforced other laws are followed more in breach than in obedience.

Similarly Austin’s concept of unlimited and indivisible sovereignty is quite inappropriate in the
Indian set up or any democracy. The sovereign does not have the power to command anything
that it desires. It is as much bound by rules and regulation embodied in the constitution and other

12
John Austin, Lectures on Jurisprudence ,Vol. 1, Bloomsbury Academic (2002)
13
John Austin, The Province of Jurisprudence Determined (1832)

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laws as any common man.14 Legislature is bound by the constitution and in almost all cases court
has the power to decide whether an act done by the government is constitutional and hence valid
otherwise it can be struck down.

Thus, we can say that the notion of sovereignty in India at present certainly not what Austin
would define as sovereignty.

14
Dias, R.W.M.: Jurisprudence (Fifth Edn. , 1985, Lexis Nexis Butterworths, London)

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 4. YAJNAVALKYA THEORY OF POSITIVISM &
MODERN INDIAN APPLICABILITY

Arthasastra, Manu Smriti and Yajnavalkya Smriti are the three leading law codes of ancient
India. However, it is Manu Smriti or the Code of Manu, which has made a lasting impact on
human behaviour in India. It contains ordinances relating to law. It is a complete digest of the
then prevailing religion, philosophy, custom and usages observed by the people in India. It lists
the duties of the kings and rules, based on Dharma, of administration of justice by them.

We find that in the Yajnavalkya Smriti, law is clearly separated from religion and morality,
unlike in Manusmriti where all these are jumbled up. Thus the Yajnavalkya Smriti was a great
advance over the Manusmriti because in it there is a clear separation of law from religion and
morality.15 We can compare this separation of law from religion, morality etc. with the similar
separation made by the positivist jurists Bentham and Austin, who separated law from religion,
morality etc. The Yajnavalkya Smriti was written later than the Manusmriti and it shows a great
advance over the latter.

Yajnavalkya Smriti is next to the Manu-Smriti in authority and recognition. This Smriti was also
originally taught orally but was reduced to writing subsequently.
Yajnavalkya Smriti is divided in three parts; 16
1. Achar (religion)
2. Vyavahar (law)
3. Prayaschit (penance)
The distinction between law and religion was well known to Vijyaneswara.

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INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES, VOLUME 1, ISSUE 6
16
Yajnavalkya smriti-11-249-253 & Manusmriti-8-401,402

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The Code of Yajnavalkya to a great extentis based on manu Smriti but he is more liberal on
certain matters than Manu, on a number of matters and particularly on the questions of status of
Sudras, women’s right of property and inheritance and criminal penalty. ‘Yajnavalkya although a
follower of conventional conservation is decidedly more liberal than Manu.

Yajnavalkya speaks of four classes of punishment inflicted upon the criminals,17 namely:
(a) Censure,
(b) Rebuke,
(c) Pecuniary and
(d) Corporal punishments
including banishment, branding, cutting off limbs, etc. the law had provided of almost all types
of crimes to be punished. It was the duty of the king and his officers to see that proper
punishment appropriate to the particular offences committed by a person was imposed upon the
wrongdoer.
Yajnavalkya laid down that in accusation of Sahasa (Crimes with violence like murder, robbery
etc.) theft, defamation and abuse, hurt and assault, in cow killing and in the matters relating to
the character of woman, the cases should be disposed of expeditiously. In other cases the court
could grant delay at its discretion. The analysis of above provisions shows that most of the
accusation named above were of criminal nature and therefore required speedy trial. In the case
of accusation of pataka like killing of Brahamana or drinking wine etc, it is a more serious type
of defamation. When a Brahamana is falsely accused of having drunk wine, unless the court
takes prompt action in calling the accused to prove his case, the Brahamana’s reputation is at
stake. Similarly accusation of unchastely or adultery against a woman required to be tried
promptly by the court. Accusation of killing the cow by a Hindu was and is considered to be
grave charge amounting to serious defamation and required prompt action.

As already discussed due consideration was given to the time and place, the strength, age,
avocation and motive of the wrongdoer who committed the offence at the time of imposing the
punishment prescribed by the law. Broadly the censure and rebuke were considered lighter types
of punishments and were imposed upon person who committed less serious offences in nature.

17
Vasu, S.N. , The Sacred Book Of Hindus, Vol. XXI (1918)

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Pecuniary and corporal punishments were prescribed for serious offences such as bodily injury,
theft and other offences which disturbed the peace and tranquillity of the State.
Finally, the ancient Hindu law had also made provision for the imposition of death penalty for
grave serious offences such as murder. In ancient India the conception of justice was the
upholding of the principles of dharma, a path or virtue to be followed by all alike. Any deviation
from the virtuous path was made punishable by law. 18 But the law of crimes and punishment
was thought elaborate but incoherent and to some extent unscientific. The procedure for testing
the truthfulness of the witnesses by subjecting them to various ordeals such as ordeal by balance,
ordeal of fire, ordeal of water and ordeal of poison, were most barbarous and unscientific.

But viewing them in the context of social conditions then prevailing they had some justification
in controlling and keeping under check the evil tendency of persons telling lies before the
judicial tribunals. Not only this punishment such as cutting off limbs in cases of certain types of
offences was also barbarous and uncivilized. The law of crimes was most unscientific with
regard to punishment inflicted upon Brahmins, for even serious offences committed by them.
They enjoyed privileges and immunities as compared to other castes, considered inferior by the
law then prevailing. Detailed rules are to be found for the punishment of abettors. The rules
relating to abetment and the penalties for various species of abetment as provided by
Yajnavalkya offer an interesting parallel to the graded punishment in the Indian Penal Code for
various species of abetment.19

The theory of Legal Positivism has been used by the judiciary in India while deciding landmark
cases. Therefore, there have been cases in India where the judiciary has been influenced by the
legal positivist school while giving the judgement. Therefore, there are cases where the judges
have interpreted the law as has been laid down by the legislature. Therefore, the legal positivist
school has played a great role in the Indian perspective also.

18
http://www.hindupedia.com/en/Yajnavalkya
19
“ ANCIENT INDIAN JURISPRUDENCE “By Justice Markandey Katju,; Speech delivered on 27.11.2010 at Banaras
Hindu University, Varanasi

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In the landmark judgement of A.K.Gopalan v. State of Madras,20

the petitioner was detained under the Preventive Detention Act. The petitioner challenged the
constitutionality of the said act on the ground that the act infringed Article 19 as well as Article
21 of the Constitution of India.The argument put forward by the petitioner was that law not only
means ‘lex’ but also ‘jus’.
Therefore, the law is not only what is laid down by the legislature but should also be just and
fair. The Supreme Court upheld the validity of the Preventive Detention Act and stated that lawm
is ‘lex’ and not ‘jus’. Therefore, what is laid down by the legislature is to be regarded as the law
of the land even if it is not just.This judgement clearly reflected the thinking of the positivist
school.

Moreover, in the case of R.K.Garg v. Union of India,21

Famously known as the Bearer Bond case, the legislature, which is the supreme authority which
is entrusted with the power of making laws, passed a law that if black money was invested in
certain government bonds within a stipulated period of time, the government would not question
with regard to the source of the black money. This law was challenged on the ground of
arbitrariness under Article 14 of the Constitution of India and it was argued that this particular
piece of legislation was encouraging the evasion of taxes. The court upheld the validity of the
law as it is and said that there is an intelligible differentia between those who invest in bonds and
those who do not. Moreover, it applied the Doctrine of Pith and Substance, and stated that the
purpose of the legislation was not to encourage the evasion of the taxes but to use the black
money for productive purposes. Therefore, the law as it is was held to be valid by the Supreme
Court.

20
AIR 1950 SC 27
21
AIR 1976 SC 1559

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Moreover, the theory of legal positivism was also applied by the apex court in the case of

Jolly George Verghese v. The Bank of Cochin,22

Were a law which stated that there would be imprisonment in case a person fails to repay a debt
was held to be valid by the Supreme Court despite it being against the United Nation
Convention. Therefore, the Supreme Court analysed the law as laid down by the legislature and
gave the decision. Therefore, in all the above cases, the court did not look into the matter
whether the law is just or not; it only considered what the law is. Therefore, the thinking of the
Legal Positivist School has been incorporated by the Indian Judges while giving judgements and
therefore, legal positivism plays a crucial role in the Indian context as well.

22
AIR 1980 SC 470

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 CONCLUSION & SUGGESTIONS

The Researcher has dealt with the provisions of Legal Posivism and its Ancient Indian Concept
by Yajnavalkya Sage. The Hypothesis of the project was found Not true

Yajnavalkya is a famous personality in Indian Literature. He is said to have been a sage present
in the court of King Janaka of Mithila.Though written after Manusmriti, this is a very important
smriti.

Vijnaneshwar's commentary 'Mitakshara' on this smriti, is the most important legal treatise
followed almost everywhere in India except in West Bengal and Orissa.The text is in classical
Sanskrit, and is organized in three books. These are achara-kanda (368 verses), vyavahara-kanda
(307 verses) and prayascitta-kanda (335 verses). The Yajnavalkya Smṛti consists of a cumulative
total of 1,010 Shlokas (verses), and its presentation is methodical, clear and concise instead of
the poetic "literary beauty" found in Manusmriti. His name stands distinguished both in the
Shrutis and in the Smṛtis. Yajnavalkya is especially known for his unsurpassed spiritual wisdom
and power.

His name stands distinguished both in the srutis and in the Smṛtis. Yajnavalkya is especially
known for his unsurpassed spiritual wisdom and power. The recipient of the Sukla Yajurveda
Samhita from Bhagavan Surya, the revealer of Brahma Jnana to Janaka, Maitreyi and others,
Yajnavalkya hails supreme among sages of sacred memory. Yajnavalkya was also a great
Karmakandi. He caused many Yajnas to be performed and himself became the Acharya of those
great Yajnas.

Yajnavalkya was the man who separated law with morality and was Ultimately a Positivist. Way
back from the period of Analytical Positivist like John Austin, H.L.A Hart, Hans Kelsan,
Yajnavalkya had the basic ideas of positivism found in Yajnavalkya Smriti.

The sources of Hindu Law can be kept under two headings:-

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Ancient or original sources: SHRUTI, SMRITIS, DIGEST AND COMMENTARIES,
CUSTOMS AND USAGES

Modern Sources: EQUITY,JUSTICE AND GOOD CONSCIENCE, PRECEDENT,

LEGISLATIONS

These Provisions were similar with the Basic Ideas of Law given by YajnaValkya long ago.
He divided law into 3 parts:
1. Achara (About Religion & Morality)

2. Vyavahara (About Law)

3. Prayaschitta (About Penance & Punishment)

Yajnavalkya was the first person who separated Law & Morality in Ancient Hindu Texts.
Yajnavalkya is also believed to be a positivist. However, there is a conflict of ideas regarding
this.
Austin’s theory of law is a form of analytic jurisprudence. John Austin is best known for his
work related to the development of the theory of legal positivism. Austin made attempts to
clearly separate ‘moral rules’ from what is known as the ‘positive law’
As per Austin, positive law was the exclusive concern of jurisprudence whereas the law of god
was primarily the subject of theology. A further subdivision of positive law was introduced by
Austin. Austin went on to distinguish laws set directly by the political superior or what was
understood to be as sovereign from the laws which were set by private citizens in quest of their
legal rights. Austin defined positive law as comprising of commands of a political sovereign
backed by sanctions on the ones who disobey the commands. There are primarily three key
constituents of this concept of law:

1. Political sovereign
2. Command
3. Sanction
We find that in the Yajnavalkya Smriti, law is clearly separated from religion and morality,
unlike in Manusmriti where all these are jumbled up. Thus the Yajnavalkya Smriti was a great
advance over the Manusmriti because in it there is a clear separation of law from religion and

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morality. We can compare this separation of law from religion, morality etc. with the similar
separation made by the positivist jurists Bentham and Austin, who separated law from religion,
morality etc. The Yajnavalkya Smriti was written later than the Manusmriti and it shows a great
advance over the latter.

Thus, We can conclude that Yajnavalkya was one of the first person who separated law with
morality therefore, can ba called as a ‘positivist’. The provisions in Mitakshara is based on the
Yajnavalkya smriti.

A Number of Modern Applicable laws Like- Hindu Mairrage Act,1955, The Transfer of Property
act and other laws have provision based on Mitakshara School of Thoughts which is ultimately a
commentary on the Yajnavalkya smriti. Therefore, The Yajnavalkya smriti has the modern
applicability.

BIBLIOGRAPHY

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 BOOKS:
Jois, Justice M.Rama ; Legal and Constitutional History of India; eight
edition (2014)
Kulshreshtha, V.D.; landmarks in Indian legal & constitutional history
eleventh edition, 2015
Mahajan, V.D.; Ancient India; 2018 edition
Majumdar, R.C.; an advanced study of history of India first edition, (1946)
Vasu, S.N. , The Sacred Book Of Hindus, Vol. XXI (1918), Panini Office
Benthem, Jeremy, An Introduction to the Principles of Morals and
Legislation
Campbell, R. , The Philosophy of Positive Law (1879)
Austin, John, The Province of Jurisprudence Determined (1832)
Hart, H.L.A, The Concept of Law (1961)

JOURNALS:

SSRG International Journal of Humanities and Social Science (SSRG-

IJHSS) Volume 4 Issue 6
International Journal on Law And Legal Jurisprudence Study, Vol. I,
Issue 6
WEBSITES

www.lawnotesforstudents.blogspot.com
www.hindupedia.com
www.internationaljournalssrg.org
www.shodhganga.com

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