deserves to have a truly green democracy. As an ancient country of environment-friendly people, Nepal cannot survive with unsustainable development practices. Environmentalist Keith Hawkins has rightly said: Pollution control is done in a moral, not a technological world. The Himalayan republic has enacted a number of green laws for promoting green democracy. It’s high time to make a pledge for a robust fight against pollution in all forms.
The unruly money lending business by loan sharks is making the poor further poorer and the rich more richer. It is maximizing pain for the poor while ensuring maximum happiness for the minimum number of people.
The state’s sole business should be to host plans and policies for maximizing the happiness and minimizing the pain among the subjects, said Jeremy Bentham. Introducing the principle of utility in his popular work An Introduction to the Principles of Morals and Legislation published in 1789, he argued that the object of all legislations must be “the greatest happiness of the greatest number”.
Expounding the theory of utilitarianism, Bentham argued that the governmental actions should be to foster happiness or pleasure and oppose actions that cause unhappiness or harm. In this respect, he favored a political structure where the state’s politics and economics are designed for promoting prosperity among the people.
Under Nepal’s current legal regime, money lending is such a profitable business where the money lender makes a fortune by making the debtor agree on a sum which is much higher than the actual transaction taking place. In every village and town of Madhesh Province, you will find a few money lenders whose job is to lend money to the poor and needy persons. The Tarai courts are filled with loan cases. Surprisingly, the district courts have more than 75 percent of Tamasuk (loan deed) cases.
In fact, borrowing and lending is not an illegal tender but truth and fairness ought to be the two attributes that need to prevail in the entire money-lending business, which the Tamasuk trap does not ensure.
Tamasuk trap
In Madhesh, there is a practice of making loan deed (Tamasuk) of much higher principal amount than the real transaction undertaken between the parties. If a loan debtor pays the amount to the creditor on time, then in such a case, he would have to bear the actual principal amount along with its interest. But, if he fails to reimburse the loan amount on time, the creditor would invoke the jurisdiction of the court by producing the loan deed, which generally sees an agreement between the debtor and creditor where the debtor has agreed to pay the amount within a stipulated time frame and in case of otherwise, the creditor would have all rights to realize the money by all legal means. In fact, the actual transaction does not appear on deed. Rather, it’s a subject of mutual understanding.
Let me explain this situation with an example. If Mr A, who is a money lender, provides loan to Mr B with a sum of NPR 500,000 then Mr A will prepare a loan deed of NPR 1500,000 to which Mr B will agree, on record, to pay 1500,000 with interest at the rate of 10 percent annually within a stipulated period which is prescribed in the deed. This has become a reality in Terai-Madhesh. It’s also a medium to make black money into white.
The high voltage drama starts in case of any default or breach of agreement or say in case of non-payment of loan on time. The money lenders find the Benches of courts as perfect forums for realizing their claims. As law recognizes documents, which have evidentiary value, the courts pass judgments in favor of money lenders who have produced the original copy of the loan deed.
In addition, the moneylenders seek stay order on the properties of the loan receiver (debtor). So, the money lending business has become an easy means of earning out of proportion.
A judge recording statements in a money lending case (or cases relating to loan deeds) does not inquire about the source of income of the loan provider. In courts, there is an established practice of not asking a money provider to prove if there was any banking transaction done by him on the date on which he has provided the sum to the borrower. So, in loan cases, the source of income remains outside the purview of judicial determination.
Generally, the deed is made in backdate–before Bhadra 1, 2075 (17 August 2018), the date of implementation of National Civil Procedure Code 2074 BS (2018). After all, the Code of 2074 requires the loan deeds of 50,000 and more to be registered at local bodies. Tamasuk (loan deed) stands valid for ten years from the date of its making.
Practices in South Asia
In Pakistan, the provincial governments are empowered to enact laws on money lending. Take the example of Pakistan’s Punjab Money Lending Ordinance (1960). It provides arrangements for money lending in the jurisdiction of the province of Punjab, Pakistan. Under Section 2(b), capital is defined as the sum of money which a money lender invests in the business of money lending. Section 3 provides mandates for license. It provides that money lending shall be carried in accordance with the terms and conditions prescribed under the license. The District Administration Office is empowered to issue licenses. Section 5 provides that the license would be canceled when the court finds a money lender carrying fraudulent transactions. If a money lender is found showing the loan amount of the sum advanced to be in excess of that actually advanced plus legitimate expenses incurred, then in such a case, their license would be canceled. Section 13 obliges money lenders to maintain accounts.
Like in Pakistan, the state governments in India have jurisdiction to adopt laws on the subject of money lending. Each state has their money lending related law in India. But, the laws are almost similar in nature. Take the example of Maharashtra. The Maharashtra Money-lending (Regulation) Act (2014) provides that no money lenders shall carry on business of money lending except in the area for which he has been granted a license and except in accordance with the terms and conditions of such license. Section 10 provisions that every year the license needs to be renewed. Section 18(2) provides that the Registrar shall issue an order stating the instrument or conveyance as invalid and may order for restoration of possession of property to the debtor who has executed the instrument or conveyance as security for loan advanced by money lender. Simply put, if a loan receiver has transferred his plot of land in the name of creditor against the loan, then the same transfer could be annulled at the order of the Registrar. Section 23 provides that the actual amount of loan and interest under transaction shall only be valid. Section 25 provides that each of the lenders would provide debtors a legible statement as to the amount of loan advanced during the year; total amount of repayments received and the principal amount and interest due at the end of year. Section 39 envisages that whoever carries on business of money-lending without obtaining a valid license, shall on conviction, be punished with imprisonment of either description for a term which may extend to five years or with a fine which may extend to 50,000 or with both. Bangladesh’s Money Lenders Act (1993) has similar provisions.
Protect the poor
Article 56(6) of the Constitution of Nepal obliges the federal, provincial and local governments to protect the fundamental rights and to promote egalitarian society. Right to property has been guaranteed as a matter of fundamental rights under Article 25. The unruly money lending business has become a bane in the country. It’s making the poor further poorer and the rich more richer, which goes against egalitarianism. Ultimately, this whole jurisprudence of Tamasuk is maximizing pain and minimizing pleasure; ensuring maximum happiness for the minimum number of people. And, it goes against Bentham’s theory of utilitarianism. This Tamasuk business neither secures poor persons’ right to property, nor does it promote egalitarianism. It’s high time for the government to emerge as a true custodian of fundamental rights and protect the rights and interest of the subjects, as they have reached a social contract with the electorates to protect their rights and concerns.
Given the misuse of law and lenders’ attitude of earning out of proportion through Tamasuk, the government could adopt a law, requiring the courts to seek the source of income of the loan provider. Along with this, there could be a legal arrangement demanding proof of banking transactions done between loan debtor and creditor on the day of making of Tamasuk. Like in Pakistan, the District Administration Offices could issue licenses to money lenders. Money lending should not be done without a license.
In case of Tarai-Madhesh, courts could adopt a practice of mandatorily referring the loan cases, where both parties are present before the court, into mediation for amicable settlement. Its high time money lending business is reformed and strictly dealt with. Above all this, government and private banks should introduce easy schemes of providing loans to the needy ones at the time of their need.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.
The tort law is more in the nature of compensatory jurisprudence, as it seeks to guarantee compensation to the aggrieved party from the wrongdoer
Tort is a civil wrong that is committed by one toward another for which unliquidated damages could be claimed. As it’s a private wrong, the injured party herself/himself has to file a suit for compensation. If at any stage, the injured party wishes, s/he may agree to a compromise with the tortfeasor (defendant), and withdraw the suit filed by him.
In case of crime, even though the immediate victim is an individual, the criminal wrong is considered to be a public wrong (wrong against the public at large) or wrong against the state. In case of tort, the ends of justice are met by awarding compensation to the injured party. The law of tort is important as it seeks to ensure the right of the persons.
However, in Nepal, there is no stringent applicability of the tort law. We often hear people raising their concerns over medical negligence, adulteration of food, environmental pollution or use of loudspeakers that causes nuisance. But people remain reluctant to move the court to resolve these issues by penalizing the outlier. People just turn a blind eye to these cases.
The question is why is there non-applicability of tort law in Nepal?
A costlier and time-consuming litigation process often prevents the aggrieved party from seeking compensation under tort law. The lack of pro bono lawyers in this law field could be another factor. More importantly, Nepalis have become habitual of claiming rights without fulfilling their duties. This is the major factor behind violation of people’s rights.
However, the state has a duty to create a conducive atmosphere to protect the rights of persons and to implement the tort law.
Tort under Civil Code
The National Civil Code, 2017 hosts provisions regarding tort law. Section 672(1) provides that no person shall do or cause to do any act or omission, negligently or otherwise, to cause harm to other’s body, property or legally protected interest. This way, tort results from the breach of such duties which are not undertaken by the parties themselves but which are imposed by law.
Winfield says the tortious liability arises from the breach of a duty primarily fixed by the law. In the words of Salmond, “Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”
The Code, 2017 prescribes that guardians would have to bear liability if their child/ward of below 14 or person with insanity commits civil wrong and causes harm to others. Section 675 provides that the employer would be liable for the act or omission of his employees. This arrangement is in recognition of the common law doctrine of “Respondeat Superior” which means master is responsible for the act of his servant.
Section 676 provides that the owner of pet animals would be automatically liable for any injury or property damage the pet causes. The law places liability on the house owner for the loss or damage caused to any person as a result of the collapse of the house. These arrangements recognize the concept of vicarious liability which provides that the state, owner or employer would be held liable in respect of loss or damage either to property or to a person.
The owner of the concerned property would be liable for the loss or damage caused to any person as a result of an explosion owing to a failure to adopt safety measures, emission of excessive gas, tree lying down, or discharge of any toxic substances (Section 678). Similarly, the owner of a dwelling house would have to bear liability for the loss or damage caused to anyone as a result of any kind of solid waste or goods thrown from his house (Section 679).
These arrangements are exceptions of vicarious liability and in recognition of the position laid down by the House of Lords in Rylands v Fletcher (1868). In this case, it was held that the employer could not escape the liability for the damage caused to the plaintiff, when the escape of water from a reservoir which was constructed by the defendant from an independent contractor flooded the plaintiff’s coal mine.
Section 680 prescribes that a person who commits trespass to another’s property shall be liable for any loss or damage resulting from his act of trespassing. Section 681 provides that each of such persons would, except as otherwise provided, be jointly and severally liable for any damage caused by that act, in proportion to the culpability of the tort committed by each person.
Jurisprudence of tort
Section 682 explicitly and authoritatively envisages that the person who commits the tort shall have to pay compensation to the aggrieved party. The provision intends to ensure real and proximate damages to the aggrieved. This way, it recognizes the doctrine of Remoteness of Damages which suggests that test of reasonable foresight and test of directness should be applied at the time of inflicting liability. Still, the aggrieved party would have to file a lawsuit within six months from the date on which such an act of civil wrong was done against him [Section 684].
In Rigby v Hewit (1850) and Greenland v Chaplin (1850), the Courts of Exchequer, England, held that liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer. In Re Polemis and Furness, Withy and Co Ltd (1921) case, the Court of Appeal, an English court, held that a person is liable for all the direct consequences of his wrongful act.
In general, the jurisprudence of tort rests on the foundation that “things speak for itself”, which is the basic essence of the doctrine of Res Ipsa Loqitor and where there is right, there is remedy, which is the basic spirit of the doctrine of
ubi jus ibi remedium.
Implementation matters
In the words of jurist Hohfeld, rights come with duties. Salmond was of the view that one cannot claim his rights unless he fulfills his duties. Our actions should not cause harm, injury or annoyance to the other. For instance, if Mr A throws garbage on the street that causes nuisance to Mr B, then in such a case, Mr A would be liable to compensate Mr B for the loss caused to him. After all, “We, the people of Nepal” deserve to have a naturally clean environment and a rule of law state, for the Constitution and prevailing laws aim to achieve a welfare state.
The tort law aims to protect the rights of people. It’s more in the nature of compensatory jurisprudence, as it seeks to guarantee compensation to the aggrieved party from the wrongdoer. In a rule of law state, the state agencies and people should not turn a deaf ear to the tort law.
I had made deliberations on Cyber Security and right to privacy laws in India and Nepal
As a Special Guest ! I am thankful to Prof Dr Vijay Srivastava, organizing Secretary of the Conference, for providing me opportunity to share my views ...
Dr Upendra Kumar Tripathi and Dr Anoop Kumar's "Vedic Tradition of Law & Legal System" provides a concise introduction to the concept of Veda, Dharma, perspectives of Bhagvad Geeta and other scriptures on constitutional and legal arrangements.
The Vedas are the most authentic repository of knowledge to support mankind in every pursuit of life. The Vedic scriptures say that every individual possesses a soul. Therefore, every individual is entitled to respect, dignity, equality and fair treatment.
The concepts of equality, fraternity, dignity or positive discrimination were prevalent in the society during the early Vedic period. The references of it were found in scriptures, like Vedas, Upnishad, Yajnavalkya’s Smiritis, Manusmiriti, Mahabharata, Ramayana, Kautilya’s Arthasashtra and among others. Dharma was the essence of rule of law and pivotal on which universally accepted rights/facts revolved. The obedience of law and order was considered to be the sacred (fundamental) duty of every person. It’s high time for the academia and governments to make robust efforts to revive and uphold rich social values of the ancient times.
In this context, Dr Upendra Kumar Tripathi, Professor of Vedic Science at Banaras Hindu University (BHU) and Dr Anoop Kumar, Assistant Professor of Law at BHU, have brought an edited book, Vedic Tradition of Law & Legal System which provides a concise introduction to the concept of Veda, Dharma, perspectives of Bhagvad Geeta and other scriptures, constitutional and legal arrangements relating to Vedic system.
Key issues and principles
The book brings together a collection of 35 chapters which provide a critical investigation into Veda’s key issues, principles, concepts, comparative frameworks, judicial decisions, recent trends in judicial review, global precedents and world’s constitutional as well as judicial position in protecting and promoting the Vedic views and tradition.
The book delves deep into the concept, doctrine and practices enshrined under Smiritis, Vedas and Hindu scriptures. It tries to find answers to why modern democracies are failing to uphold the social values of the past. The conceptual underpinnings are refreshing because they come through verses of Holy Scriptures which are meaningful in real life and they show vivid paths to foster a sustainable democracy.
A 35-page long “Introduction” to the book by the authors is like an icing on the cake. Dr Tripathi and Dr Kumar, whose recurring theme has been the search of Vedic tradition, provisions and practices of Holy Scriptures and recent legal and judicial trends in the world, provide an incisive and in-depth analysis of the authoritative texts, laws and Sanskrit verses.
In introduction, Professor Dr Upendra Kumar Tripathi and Dr Anoop Kumar argue that Vedas, as the source of law, provide foundation for the evolution of law. “Veda, Samhita, Brahmana and Upnisad primarily constitute the foundation of Vedic tradition of law. This knowledge database is utmost significant for the welfare of individuals in present day social order and state structure,” they write.
The laws for regulating Hindu society from time to time are codified in Smiritis. The Smiritis have laid down definite rules and laws to guide the individuals and communities in their daily conduct and to regulate their manner and custom.
The ManuSmiriti remains one of the finest embodiments of classical law and of fundamental importance in any study of law in Vedic tradition. The book is divided into five parts with as many as 35 chapters written by different distinguished scholars. The first part of the book contains 15 chapters that relate to “Dimensions of Vedic Jurisprudence and Tradition.”
Views on legal system
In the first chapter, Justice BN Srikrishna, former judge of the Supreme Court of India, writes: “The most important and the earliest of the metrical Smiritis is the Manava Dharma Shastra or Code of Manu. It is closely connected with the Mahabharata, of which three volumes alone (III, XII, XVI) contain as many as 260 of its 2684 Shlokas.”
Justice Srikrishna further writes that Vedanta teaches us that all humans are one family. The Universal Declaration of Human Rights (UDHR), 1948 states that all human beings are born free and equal in dignity and rights. This fundamental human value is seen as Vednatic thought. Geeta, in Chapter-6, Verse 29, says all humans are equal, argues he.
He further argues that justice is identical with divine reason, with the divine nature and essence, which, being eternal and immutable, excludes all ideas of arbitrariness.
Malbika Majumdar, a former Professor of Delhi University, unravels facets of Mimamsa jurisprudence. According to her, the idea of law continues to grow and the process never seems to be ending.
RP Rai and Kiran Rai in their chapter, entitled, “Influence of the Vedas on Hindu law and the Role of Uttar-Mimamsa” argue that the Vedas are the oldest religious texts still in use and the Hindu law is considered to be among the world’s oldest known system of jurisprudence.”
Kavitha Balakrishnan in her chapter “Legal Trajectories of Ancient India: Reflections in Smiritis” writes that each country develops legal system according to culture developed through ages. She highlights that sacred law (Dharma), evidence (Vyavahara), history (Charitra) and edicts of kings (Rajasasana) are the four legs of law.
256
In addition to this, there is a pressing need of re-designing the legal education programs to promote Indic values, write Gigimon VS and Adithya Anil Variath in their chapter. Also, Harekrishna Satapathy’s chapter examines Vedic views of legal education.
Sapindar Kaur in “Diversity in Concept of Dharma and its Relationship with Indian and International Legal Thought” argues that diversity in Hinduism is there because it consists of sects, sub-sects, communities with varied traditions and inclusive of Buddhism, Jainism and Sikhism.
Kartikey Singh Somvanshi in “Vedic Knowledge: A Symphony of Modern Era” discusses Vedic traditional texts and their utility in present legal structure. Durgesh Shukla has discussed laws and politico-economic principles given by Chanakya.
In “Tracing the Development of Dharma from Ancient to Modern Society,” Mozamil Ahmad writes: “Over time, Dharma has operated as a unifying force for the diverse evolving customs. The Sashtras like the religion of Hinduism are not Monolithic, the continuous interpretations and re-interpretations offer society to rediscover itself again and again. The continuous comparison of the sources of Dharma with the modern legal tradition merges to contribute towards a better society.”
In the 12th chapter, Paragati Bajpai shares instances which suggest that Dharma is the source of law. “Dharma and law are interwoven even in present time and cannot be separated.” In the succeeding chapter, Paranjul Dalela and Shirish Parashar have also discussed Dharma as source of law from a different perspective.
Sruti Badu discusses the juristic personality of idols in India in 14th chapter. In the 15th chapter, Mitsu Parikh and Ankitashri Tripathi discuss the verses of Bhagvad Geeta as the source of law. “Prosperity has bred greed and corruption. Reminding oneself of our magnificent past and enriching scriptures and knowledge of their essence can bring back the balance we need to develop into thoughtful beings and evolve,” they write.
Live and let live
The second part of the book hosts eight chapters that delve into the study of constitutional provisions and environmental concerns from the lens of Vedic tradition. In the 16th chapter, Amar Pal Singh and Shivani Chauhan discuss the fundamental duties. “The whole idea is determinable on the basis of Dharma which involves both moral and legal duties to be discharged without any exception,” they write. They cite a Sanskrit verse which says there are only two conclusions of all 18 Puranas and the commentaries of Vyas: Welfare of others is virtuous and teasing others is sin.
“We should nurture and raise a generation that would sacrifice one (person) for the sake of the family; give up a family for the sake of a town; sacrifice a town for the benefit of the nation; and also leave the earth for the benefit of the soul.”
Professor VS Mishra, who teaches Law at Banaras Hindu University, discusses constitutionalism and rule of law. The judiciary has created a congenial environment for sustaining democracy and the rule of law through transformative constitutionalism, he argues.
In the 18th chapter, the book devotes a good deal of sections to explaining the land administration. In the 19th chapter, Pavithra R shades light on Mimamsa rules. The chapter argues that Mimamsa rules could help to resolve conflicts, as they serve as tools to address the problems of contemporary days.
Pragyan Deep Agarwal and Sunny Khatri present a description on Hindu temples and argue that temples are the backbone of Vedic culture.
Nitish Rai Parwani in his chapter discusses the state and nation. He argues that a nation is more stable than a state, for a nation can survive even without sovereignty.
Saurav De explores Vedic literature to explain different dimensions of environmental protection. He explains how Vedas embody verses in protection of the natural environment. Nistha Tiwari too explains environmentalism through the lens of Vedic tradition.
The third part of the book embraces four chapters which give a perspective on criminal law under Vedic tradition. In the 24th chapter, Akhilendra Kumar Pandey, a professor of law at BHU, discusses the laws given by Manu, Yajnavalkya and other scholars. He argues that punishment should ideally be uniform. He believes that the doctrine of guilty mind, deterrence as one of the justifications, uniformity and individualization of punishment were very much present in old Indian traditions.
Rajasi Guharoy, Assistant Professor of Law at Adamas University, Kolkata, discusses the instances that suggest that the basic principles of law remain the same as it was during the Vedic period. Indrajeet Dey, an advocate at Calcutta High Court, discusses about Vedic tradition and sentencing policy. In modern world, where there is a debate about introduction of castration as form of punishment for offenders of sexual violence, the Mahabharata and Bhagwat Purana have dealt with such issues already, he argues.
“There is a need for spiritual education amongst the persons running the system as well as the convicts who are seeking to correct themselves,” says Professor Guharoy.
The 27th chapter of the book written by Vishnu Pandey discusses the concept and forms of punishment in Vedic tradition. He discusses the theories laid down under the writings of Manu, Yajnavalkya, Kautilya, Katyayana, among others.
The fourth part of the book includes three chapters on family laws in Vedic tradition. The Vedic views of inheritance, marriage, gifts to married daughters, Mitakshara and Dayabhag schools, rights of women and children under Vedic as well as modern legal system have been discussed in this part. In this section, Brajkisore Swain, Saugata Talukdar and Aradhna Nair have contributed their insightful chapters.
Under the fifth part, the book presents views on commercial law from the perspective of Vedic tradition. Mayank Paratap in his chapter argues that some of the living examples of basic principles of contract law can be seen in Hindu scriptures. Uniformly, all Smiritis lay down that a person is competent to contract only after he attains the age of 16 years. Kautilya in Arthasashtra states that forced or fraudulent transactions shall be null and void. Contract without free consent is also considered invalid by the Smiritis. “Only a significant difference between modern law and Dharmasastra is that if the former is considered with only conduct of the human beings, the latter dealt with both conduct and character.”
The concluding part of the book carries five chapters which provide lucid views on taxing system, patenting and intellectual property rights from the Vedic perspective.
The editors Dr Kumar and Dr Tripathi in Introduction write: “The book presents perceptions of different authors on the various facets of Vedic tradition of law and legal system. A common concern visible in this book is that the legal tradition of Bharatvarsh should be explored in comparison with contemporary legal regimes.”
Reason to read
If there is one reason to read Dr Tripathi and Dr Kumar’s timely exposition it is their endeavors to give conceptual clarities on the Vedic science and its impact on modern legislations, and its role in upholding fundamental freedoms, rule of law and constitutionalism since ages. They do not only discuss Vedic philosophy from an Indian perspective but also devote a good deal of section for international precedents. Their book should be a mandatory reading for lawyers, judicial officers, adjudicators, journalists covering Vedic and legal affairs, teachers and students of various streams, including that of social sciences and law.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.
