Chapter XXXII. Practices of Shistas; Conflict among Shruti, Smriti and Sadāchāra: Ancient Instances of Transgressions of Dharma; Customs and Pūrvamīmāmsā

Volume III pp. 825–855

Chapter XXXII. Practices of Shistas; Conflict among Shruti, Smriti and Sadāchāra: Ancient Instances of Transgressions of Dharma; Customs and Pūrvamīmāmsā

CUSTOMS AND MODERN CUSTOMARY LAW¹ From Gautama² downwards many writers dilate upon the sources of dharma. Gautama I 1-2 states: 'the Veda is the source (mūla) of dharma and also the tradition (or smṛtis) and practice of those who know the Veda'. Similarly Āp. Dh. S. (I. 1. 1. 1-2) says: 'we shall propound the acts (that produce merit) which are evolved from conventions and practices; the authority (for finding out the dharmas) are the conventions of those who know the dharma and the Vedas'. Vaṣ I. 4-7 provides: 'dharma is declared by the Vedas and Smṛtis; on failure of these two the practice of the śiṣṭas is the authority (for finding out what dharma is); a śiṣṭa however is one whose heart is free from (worldly) desires and (only) such acts of śiṣṭas are (to be held as) dharma for which no (worldly [Vo or secular) cause (or motive) can be assigneḍ³ Manu II. and Yāj. I. 7 declare that Veda (or śruti), smṛti and the practices of the good are the principal sources of dharma. The words employed in these works are śīla, samaya, ācāra or sadācār or śiṣṭācāra (the latter three meaning the same thing). Āp. employs both words viz. samaya and ācāra, the first of which probably means 'agreement or convention or usage', while the latter means 'custom'. The word 'custom' now conveys the idea of some antiquity,⁴ while usage or convention does not necessarily convey that idea. A usage may be recent or it may be established by agreement among a certain class of persons (such as traders or craftsmen). We have to see what is meant when it is said that ācāra or śiṣṭācāra or sadācāra is the source (mūla) of dharma. An indication of the meaning is furnished by the word pramāṇa employed by Āp. and Vaṣ The meaning is that just as the revealed books (Veda) and the smṛtis authoritatively lay down what dharma is, so also in our quest to find out what dharma is in the varying circumstances of life the practices of those who may be called śiṣṭas furnish us with the necessary criterion or norm i. e. śiṣṭācāra is the touchstone for judging whether an act is in consonance with what the śāstras require us to do. The theory of the ancient writers was that the smṛtis were based on parts of Veda (that consists of mantras and Brāhmaṇa texts) which though formerly existent are not now extant or available, that similarly the practices of those who were learned in the Vedas and were deemed to be śiṣṭas must be inferred to have been based on portions of Veda not now, available. This theory was advanced by such ancient III ] writers as Āp.⁵ and was taken up by many subsequent workṣ Manu II. 7 also states that whatever dharma has been ordained for any person by Manu, all that has been entirely declared in the Veda for the Veda is full of all knowledge. But it does not follow from this nor is it ever meant that all practices of śistas are authoritative in matters of dharma. The qualifica- tion was added that where the practices of śistas are clearly referable to or are prompted by a seen motive or by the desire to secure pleasure, there they are not authoritative. Manu (II. 18) restricted the word sadācāra to the customs handed down from generation to generation among the four varṇas and the mixed castes in the connry called by him Brahmā- varta (II. 17). But many other writers did not so restrict it in this way.

We have to distinguish between what are called the sources (mūla or pramāṇa) of dharma and the sthānas of dharma (Yāj I. 3 and 7)⁶. The former indicate to the inquiring spirit what dharma is (i e. they are what are called jñāpaka hetu ), while the latter must be studied as aids by the expounders of dharma in order to correctly grasp what dharma is, i. e. the different lores ( other than Veda and smṛti) are not directly the sources of dharma, but are only mediately so. This distinc- tion is an ancient one as even Gautama XI. 19 provides that the king is helped in his administration of justice by the Veda, the dharmaśāstras, the auxiliary lores (aṅgas), the Upavedas and the Purāṇa.⁷

The position of the Pūrvamīmāṁsā in relation to the authoritativeness of smṛtis and customs requires careful and detailed consideratioṇ In I. 3. 1-2⁸ Jaimini considers the question whether such smṛti injunctions as ‘one should perform the Aṣṭakā śrāddhas’,⁹ or ‘one should construct a tank or set up a prapā (place for free distribution of water to thirsty travellers’), or ‘ tufts of hair should be kept on the head’ (at caula according to the gotra) are authoritative and establishes the conclusion that they are authoritative, since such smṛti injunctions equally with Vedic ones are addressed to the same persons (viz. the followers of the Veda) who have to act according to them The idea is that those who perform the acts expressly enjoined by the Veda are also seen to perform the acts enjoined by such smṛtis as that of Manu and therefore the principal reason why these smṛtis are authoritative is the fact that those who know the Veda accept these smṛtis as authoritative and hold fast by them, as Medhātithi on Manu II. 6 says citing some verses from his own work called Smṛtiviveka¹⁰ Śabara endeavours to show that there are indications (liṅga) in the Vedic texts pointing to the existence of what is prescribed in the smṛtis e. g. he cites the Vedic verse ‘yām janāḥ’ as indicative III ] Authoritativeness of smṛtis of aṣṭakās, Rg X. 4. 1 of prapās, Rg. VI. 75. 17 of tufts of hair The objection may be stated as follows :—The smṛtis are composed by human authors (i. e. they are pauruṣeya) and so have no independent authority in matters of dharma, as a man may say what is either false or mistakeṇ If it be said that the smṛtis really propound what is stated by the Veda, then they are practically superfluous and uselesṣ And not being Veda they should be discarded (anapekṣa) To this the reply is that smṛtis are generally authoritative, as they must be held to be based on Veda because they are composed by men (like Manu) who were followers of the Veda, because what the smṛtis lay down has been consistently followed from generation to generation by the śiṣṭas and because it is possible to regard the Veda as their source. To the question why the Vedic passages on which the smṛti rules are postulated to have been based are not seen or found by us several answers were proposed by different writers One view was that just as Vedic indications about locks of hair lead to the inference of śruti texts enjoining the keeping of tufts on the head, so the fact of the existence of such rules leads to the inference that śruti must have contained injunctions corresponding to all smṛti prescriptions Kumārila raises objections to this view. Inference is based on perception (pratyakṣa) and invariable concomitance (vyāpti). There is no vyāpti between the smṛtis and śruti texts that are never found pronounced by any one, so no inference is possible and it would be like one blind man following another.¹¹ Manu must have composed his smṛti on finding that ācāryas preceding him performed certain acts as based on Veda These last must have believed that their predecessors also acted on the same belief. Hence there is what is called an ‘andha-paramparā’ on this hypothesis And further this hypothesis of the inference of śruti in all cases is opposed to perception, since as a matter of fact hundreds of śruti passages are known that can be the basis of corresponding smṛti texts Another view is (and Kumārila holds that it is somewhat better than the preceding view) that one should infer that the Vedic passages that were the basis of smṛtis are lost (utsanna or pralīna) Some support is lent to this by such Vedic texts as ‘anantā vai vedāh’ (Tai. Br. III 10, 11 ) and by Āp. Dh. S I 4 12. 10. Even this view is not acceptable to the Tantravārtika and most of the Mīmāṁsakas against the 2nd view is raised as followṣ Even Bauddhas and other heretical sects¹² would advance the argument that their works also are based on śruti texts that are now lost, and any one may regard anything as authoritative by pretending that the basic vedic texts are lost. Further the Mīmāṁsā view that the Veda is eternal ( nitya ) would be refuted if it was admitted that some portion of the Veda is lost. There is not much difference between the first view and the second view. Therefore Kumārila propounds the third view viz. that smṛtis are to be inferred as based on Vedic texts that are already in existence¹³. If an objection is raised against this hypothesis that it must be explained why such Vedic texts (the bases of smṛtis ) are not seen or found, the Tantravārtika replies in a famous kārikā that as the Vedic śākhās (the several branches of the Veda) are scattered about (in various countries), as men (followers of the Veda) are negligent and unmindful (i. e they do not visit all the countries and so are unable to have a complete knowledge of all Vedic texts ) and as several rules are declared in different contexts even when occurring in the same śākhā (and not at one place ) it is not always possible to point out the Vedic sources of smṛti textṣ If an objector were to ask: ‘why were not the Vedic passages themselves (that are the sources of smṛti rules) embodied bodily into the smṛtis,' Kumārila replies that this was not done from the fear of the loss of the correct arrangement of the Vedic texts as traditionally handed dowṇ The Veda is principally concerned with sacrifices, though now and then there are rules addressed to men for regulating conduct only. People would only study the Vedic sentences contained in the smṛtis ( that are concerned principally with conduct ) where they would be arranged in a different order according to subjects and there would thus be loss of the arrangement of the Veda as originally delivereḍ Viśvarūpa¹⁴ (on Yāj.'I. 7) quotes the above verse of Kumārila and states that there are thousands of smṛti rules that have their source in the Veda ; he and Kumārila instance the rules against talking with ( or coming in contact with ) a woman in her monthly illness or the rule against assaulting a brāhmaṇa, or the rule about the sin of killing an ātreyī woman &c. Medhātithi on Manu II. 6 has an elaborate discussion on this very topic and quotes several verses from his own work called Smṛtiviveka¹⁵. He does not approve of the first two views and follows Kumārila's view. Mīmāṁsā writers and commentators like Medhātithi say that Manu and other authors of smṛtis brought together for easy comprehension matters that are scattered about in the various Vedic texts, that are either not known to the students of the several śākhās or that cannot be brought together by men of ordinary or weak intellect,¹⁶

The general proposition that smṛtis are authoritative being established, a further question ariseṣ What is to happen if a smṛti rule conflicts with the rule of the Veda? Jaimini deals with this question in I. 3. 3-4, ¹⁷ which form a topic that states an exception to the general rule contained in Jai. 1.3.1-2. Śabara gives three instances where there is apparently a conflict between the prescriptions of the śruti and those of smṛtis The Veda says, ‘the priest should chant (the stotra) after touching the audumbari post’, while smṛti says ‘the whole of the audum- bari post should be covered with cloth’. The Veda says ‘one to whom a son has been born and whose hair is still dark (and has not turned grey) should consecrate the Vedic fires’, while smṛti says ‘a man should observe Vedic studenthood for 48 years ¹⁸; when the Agnīşomiya rite is finished then one may eat (the food prepared) in the house of the sacrificer’, while smṛti says ‘the food of one who has undergone dīkṣā for a sacrifice may be eaten after he purchases the soma plant’. In these cases the proposition enunciated by Jaimini is that ‘in case of conflict (between an express śruti rule and a smṛti rule) the smṛti rule should be discarded, for when there is no conflict (with an express śruti) inference may be made (that a smṛti rule is based upon some Vedic text)’. The examples may be explained as follows: The ‘audumbarī’ is a post of udumbara planted in the sadas in the performance of the Agniṣṭoma; the stotras (other than Bahiṣpavamāna) are chanted near the audumbari post in the sadas. Vide H. of Dh. vol. II p. 1135 for the fixing of the audumbara post in the sadas and p. 1185 for the chanting of stotras near the audumbarī. If the whole of the post be covered with cloth, it would not be possible to touch the post, but only the cloth would be toucheḍ So there is contra- dictioṇ If a man is to consecrate Vedic fires when he has a son and his hair is dark, he must be between about 20 and 40 (i. e. a young man), but if a man were to observe brahmacarya for III | 48 years, he would be about 52 to 56 years of age before he married (as the upanayana of a brāhmaṇa was to be performed generally in the 8th year or from the 5th year onwards at the most ). Only a married man could consecrate Vedic fireṣ But a man's hair when he is fiftytwo years of age or more can hardly be all dark. Therefore there is contradiction between the rule derived from the Veda and that derived from smṛti. In the Jyotiṣṭoma (which generally occupied five days), the dīkṣā (purification and initiation of the sacrificer) takes place on the first day in the afternoon (vide H. of Dh. vol. II. pp. 1134-1136 ). Soma is purchased on the 2nd day of the Jyoti- ṣṭoma (ibiḍ 1140-4) and the animal is sacrificed for Agni and Soma on the 4th day (ibiḍ pp. 1158-59). According to śruti therefore the food prepared in the house of a dīkṣita may be eaten only after the 4th day, while smṛti says that it may be eaten after the purchase of soma on the 2nd day. In this way there is contradictioṇ Kumārila¹⁹ does not agree with Śabara as regards these examples in particular and as regards the general attitude towards smṛtis that are accepted by Vedic followerṣ He makes great efforts to explain how there is no real conflict in the cases cited by Śabara. As regards the cloth covering the audumbari he says that it may cover the bottom and the upper portion of the post and leave a space of two or three finger-breadths in the middle uncovered (so that the audumbari post can be touched in that particular por- tion), that (p. 188) there is a passage in the Śātyāyani Brāhmaṇa which refers to the cloth covering the audumbari (and so there may at most be an option), that as regards the taking of food in the house of a dīkṣita after the purchase of soma there is a śruti passage in the Atharvaveda (pp. 181 and 189) similar to the smṛti passage (and thus there is no conflict between śruti and smṛti, but between śruti and śruti, which would lead to an option) and further the smṛti rule may apply in the case of a man in distress (āpad- dharma), that smṛti does not prescribe an absolute period of 48 years for the study of Veda, but Bauḍ Dh. S. itself allows several alternative or optional periods and so no question of conflict with śruti ariseṣ Kumārila's own position is this : In the case of apparent conflicts between śruti and smṛti, various methods of interpretation and reconciliation are possible. Each of the two may be given its proper scope as referring to different subject matters (which is called viṣaya-vyavasthā); it is also possible to hold that smṛti is based on some śruti texts already existing but not found at the time of discussion, but which may ultimately be found, in which case there will be an option, though the latter is to be avoided as far as possible as it is liable to eight faults (vide Tantravārtika pp. 174–175); or the two may be reconciled even when referring to the same subject matter e. g. a man may have dark hair even when he is 52 or more and the smṛti may be taken as meant to refer to such a man, while the śruti states the general rule about the age when consecration of Vedic fires was to be made. Therefore Kumārila holds that all that is meant by Jaimini and even by Śabara is that there is a great distinction between śruti and smṛti in that the former is apauruṣeya and an independent authority, while the latter has a human author (liable to err), is either actually based on the Veda or is inferred to be so based, that the two therefore can never be said to be quite alike each other as regards their authoritativeness and that lastly smṛti is not in itself to be regarded as unauthoritative²¹. Kumārila therefore suggests that the proper subject of discussion in Jai. I. 3. 3–4 is the works of Buddhas, Sāṅkhya, Yoga, Pāñcarātra, Pāśupata and other heretical sects and the practices of mlecchaṣ These works contain some matters such as the emphasis on ahiṁsā, truthfulness, restraint of senses, charity and compassion, which are also emphasized in the Veda, but these works are not generally accepted by the followers of the Veda, are based on specious and false reasoning only (they are _hatukas_ in the words of Manu), that they deny the authority of the Veda. Therefore Jaimini means that these works of heretic sects are not authoritative in matters of dharma as they are opposed to the Veda and should be discardeḍ For want of space it is not possible to set out in detail the interesting discussion in the Tantravārtika. The Jaiminiya-nyāya-mālāvistara also gives another explanation of Jai. I. 3. 3.

Śabara (on Jai. I. 3. 4) explains that the three smṛti passages stated above are not authoritative since it is possible to point out how they originated in a visible worldly motive such as greeḍ When a visible motive can be pointed out for any smṛti text, it is not proper to infer that it is based on the Veda and has an unseen spiritual motive. Śabara²² postulates the reasons in the way of a modern man finding fault with priestṣ Some priests covered the whole of the Audumbari post with cloth, because they coveted the cloth as part of the fee; others who desired a free meal when hungry took food at the house of a dikṣita even after he had purchased the Soma plant; certain others in order to conceal their absence of virility went in for Veda study for 48 yearṣ The Tantravārtika tries to show that in all these cases there is really no visible motive such as covetousness (pp. 188-189)

Śabara gives an alternative explanation of this sūtra (Jai I.3.4) and makes a separate topic (_adhikaraṇa_) of it. The reasons²³ for giving an alternative explanation of a _sūtra_ or _adhikaraṇa_ are two, viz. dissatisfaction with the explanation already given or the wide scope of the subject under discussioṇ In I. 3. 3 smṛtis were cited which were apparently in conflict with śruti. If they were really in conflict, that one reason alone is more than sufficient to render the smṛtis invaliḍ Therefore to say further that those smṛti passages originate in worldly motives like greed does not add any very substantial reason for the abandonment of smṛtis as authoritative. There- fore Śabara makes another adhikaraṇa of sūtra 4 of Jai. I. 3. He cites smṛti passages which are not opposed to Veda at all and says that such passages have seen a worldly motive such as covetousness and it is not proper to suppose that they are based on Veda and are therefore authoritative, when a visible purpose or motive can be ascribed to theṃ The result of the explanations of I. 3. 3-4 given by Śabara would be that smṛti rules that are opposed to śruti rules and smṛti prescriptions that can be shown to have a clear worldly motive are not authoritative or absolutely binding, while the rest of smṛti texts are authoritative.²⁴ Śabara cites on Jai. I. 3. 4 (when taken as a separate topic)²⁵ two examples; (1) the adhvaryu priest takes ( as his fee ) the cloth used in the Vaiśarjana homa; (2) they perform the gift of the elephant ( i. e. the cloth covering ) of the sacrificial post. Śabara says that these passages are not opposed to any śruti text but instead of inferring a Vedic text as their basis it is far better to hold that there is a manifest worldly motive for these rules ( viz. covetousness of the adhvaryu ) and so these smṛti passages need not be looked upon as authorita-tive.²⁶ This discussion raises an important doctrine which frequently figures in dharmaśāstra workṣ The doctrine is expressed in this form viz. when a visible motive or purpose is obvious in the case of a rule or prescription it is not proper to ascribe an unseen or spiritual purpose or reason for it. 'This doctrine is older than even- Ap. Dh. S. I. 4. 12 11 which says, 'where men act because they find pleasure in so doing, there śāstra has no scope'. Śabara also says,²⁷ 'those rules (in the smṛti) that have a seen purpose derive their authority from that fact, while those that have no visible purpose may be inferred to be based upon the Veda (and derive their authority from that).' These words of Śabara are quoted by Kullūka on Manu III. 7 where Manu states that a girl should not be selected as a bride from a family that neglects the saṁskāras, in which no male children are born, in which there is no Veda study, the members of which have on their bodies long and thick hair, that suffers from such diseases as piles, dyspepsia, epilepsy, black and white leprosy. Kullūka remarks that the works on medicine hold that such diseases are inherited and so if such a girl be married the progeny might suffer from these diseases, and thus this prohibition is based on a visible motive. From this a very important conclusion is drawn by dharmaśāstra writers viz. if one while performing a rite or when engaged in any matter acts contrary to a rule that has a seen purpose, the rite or matter does not become invalid or void, while where a rule is based on an unseen or spiritual purpose and it is infringed, the act itself becomes void or invaliḍ Yaj I. 52 and 53²⁸ prescribe among other things that the bride to be chosen by a man must be free from (incurable) diseases, must have a brother living, must not be a sapinda of the bridegroom or must not have the same gotra or pravara as that of the bridegrooṃ On this the Mit. remarks that if a man marries a girl who is suffering from an incurable disease, the marriage is valid, only he does an act which runs counter to seen results (i. e. he may suffer the consequence that his children may be diseased), but if he goes through a cere- mony of marriage with a girl who is a sapinda or of the same gotra or pravara there is no valid marriage and the girl is not his legal wife. No clear visible purpose can be associated with the prohibition against marrying a sapinda or sagotra girl; hence there must be a spiritual purpose in that prohibition and so if one infringes it the act itself ( viz. marriage ) becomes voiḍ²⁹

The Tantravārtika of Kumārila has as usual a very long note on this discussioṇ He does not see eye to eye with Śabara. He says³⁰ that the Mimāṁsā is concerned with the investiga- tion of dharma, that śruti is the prime authority in matters of dharma, that Mimāṁsā has concern with smṛtis only so far as their authoritativeness in matters of dharma goes, that just as agriculture and the like are not discussed in Mimāṁsā works because they have a purely secular purpose, so all acts that men do for a visible worldly purpose have no bearing on the investigation of dharma and that therefore the bhāsyakāra ( Śabara ) was not quite right in saying that such practices as rising to receive an old man or a teacher have a visible purpose and are authoritative on that grounḍ He further remarks that visible and invisible or spiritual purposes are often inextricably mixed up. When the Veda prescribes ‘he pounds the grains of paddy’ or enjoins a sacrifice like the Kārīrī for bringing down rain, there is a visible purpose therein (e. g. the rice grains have to be freed from husk before boiled rice for obla- tions can be prepared). So even when an act has a seen purpose it may still have Veda as the basis; so also an act such as rising to show respect to a teacher may have a seen result (such as the teacher being pleased teaches the pupils with enthusiasm) as well as an unseen result (viz. completion of Veda study without obstacles). Therefore he argues that all smṛtis ³¹ are authoritative according to the purpose they serve, that whatever portion of the smṛtis is concerned with dharma and mokṣa (final release from saṁsāra) has its origin in the Veda and whatever is concerned with wealth and the satisfaction of desires (artha and kāma) is based on worldly practiceṣ In this way are to be explained the didactic portions of the Mahābhārata and the Purāṇas, the episodes in these being useful for arthavādas (eulogies of what are prescribed as religious duties), the description of the several divisions of the earth being useful for indicating what countries are suitable for the performance of dharma and the enjoyment of its rewards and being based partly on Veda and partly on direct experience. Similarly the auxiliary lores (aṅgas) of the Veda (such as phonetics, grammar, metrics &c.) are partly based on the Veda and partly on worldly experience. Mīmāṁsā and Nyāya (logic) are necessary for the correct interpretation and understanding of the Veda (as stated by Manu in XII. 105-106) He is even prepared to concede that systems ³² like the Sāṅkhya (which postulates a prime cause of the world called Pradhāna), or Vedānta (which postulates Puruṣa as the cause of the world), the theory of atoms (propounded by Kaṇāda) serve the purpose of explaining the creation and dissolution of the world, lead one to understand how the performance of sacrifices gives rise to the subtle apūrva which leads on to heaven and also exemplify how human effort and fate have their own spheres of operation (i.e. without human effort the world is produced and in spite of human effort it may be dissolved). Kumārila goes a step further and states that even the Buddhist philosophies of vijñāna (cognitions being the only reality), of the non-existence of the soul or of eternal flux arise from the arthavāda passages of the Upaniṣads and serve the purpose of inducing men to give up extreme attachment to sensual pleasures and therefore may be useful in their own way. He winds up by saying that in the case of all knowledge or works wherever the result (or reward) of the course laid down in them is to take place in the future and there is no possibility of experiencing its happening in the present such work may be deemed to be based on the Veda; but where, as in the science of medicine, the result can be seen taking place in other people, that knowledge is authoritative only because of the visible result.

This discussion about smṛtis based on the Veda or on perceptible purposes or motives is taken up in the digests on dharmaśāstra. For example, Aparārka ³³ (pp. 626–627) quotes long passages from the Bhaviṣyapurāṇa dividing the contents of smṛtis into five categories and exemplifying that division, viz. (1) those based on a visible purpose or motive, (2) those based on unseen or spiritual motives or purposes, (3) those based on both visible purposes and unseen or spiritual purposes, (4) those based on reasoning, (5) those that merely re-iterate what is already well-known or determineḍ All these except the first variety are based according to the Bhaviṣyapurāṇa on the Veda. The examples of the five kinds given by the same Purāṇa are respectively as follows: (1) the smṛti (viz. Arthaśāstra or daṇḍanīti) in which there is a discussion about six guṇas (sandhi &c.), the four upāyas (sāma, dāna &c.), the various superintendents of state departments (adhyakṣa) and of hantakas, (2) the prescription that one should perform the sandhyā worship or that one should not partake of dog's flesh; (3) a brahmacārin III ] should carry a staff of palāśa (the staff serves for one's protection, which is a seen purpose, but that it should be of palāśa and of no other tree is based on an unseen motive); (4) when one text declares that homa should be performed after sunrise and another declares that it should be performed before sunrise, reasoning requires that there should be an option (vide Manu II 15), (5) when Manu declares (in VI 38) that a brāhmaṇa should leave home to become a wandering ascetic he simply re-iterates what is laid down in such Vedic passages as Br Up. III 5 1 (vyutthāyatha bhikṣācaryam caranti) or Jābāla Up 4.

In I. 3. 5-7 Jaimini as interpreted by Śabara³⁴ deals with the topic of the authoritativeness of certain usages laid down in the smṛtis in relation to Vedic riteṣ Śabara states: śiṣṭas say that religious rites should be performed after sipping water (i. e. after ācamana), one should wear the sacred thread in the upavīta way in the worship of gods, one should do with the right hand all religious actṣ The question is whether these acts should be done if not opposed to the śruti or should not be performed if opposed to what is taught in the Veda. The pūrva- pakṣa view is that these acts should not be done because they run counter to the sequence of the acts laid down in the Veda. For example, the Veda says, ‘after getting ready a bundle (or handful) of kuśa grass called veda one should prepare the vedi (altar)’. Here the preparation of the vedi is declared to follow immediately after the getting ready of a handful of kuśas. If after the handful is got ready a man has a sneeze he has accord- ing to Manu V 145 and Vas III 38 to sip water before going on with the preparation of the vedi. This would be against the sequence (krama) of acts laid down in the Veda. Strangely enough Mr. K L Sarkar in T.L.L (on Mimāṁsā rules) translates the words ‘vedam kṛtvā vedic karoti’ as ‘make the vedi and then recite the vedas' (p. 241), thereby committing two mistakeṣ He misunderstands the word 'veda' which in this passage only means a 'handful of kuśas' and inverts the sequence of the acts denoted by the gerundial termination 'tvā'. On account of these two mistakes the discussion on pp 240-242 is mislead-ing and obscure. If a man were to do the things required in a vedic rite with both hands, he would be able to do them quickly. The smṛti rule that every religious act should be done with the right hand alone interferes with the quick performance of religious actṣ The established conclusion is that these religious acts (such as ācamana) are performed by the śiṣṭas, are prompted by no visible motive (such as covetousness) and are therefore to be looked upon as authoritative, being not opposed to śruti. Kumārila does not like this way of explaining the sūtras, since the instances given by Śabara really do not deserve to be put forth as even prima facie opposed to Śruti. The Tantravārttika (p. 201) sets out śruti passages wherein the wearing of the sacred thread in the upavīta form¹⁶³⁶ (Tai. S. II. 5. 11. 1 and Tai. Ār. II. 1), ācamana (Tai. Ā. II. 11), are enjoineḍ Therefore it explains the sūtras in a different way. It splits up Jai I. 3. 5-7 into two adhikaraṇaṣ The first two constitute one topic. The pūrvapakṣa¹⁶³⁷ is, those precepts of Buddha and other founders of sects, such as the construction of monasteries and parks, the insistence on desirelessness, the practice of meditation, ahiṁsā, truthfulness, restraint of senses, charity and kindness, are such that they are also laid down by the Veda, are not opposed to the ideas of śiṣṭas or do not run counter to nor rouse those who know the Veda to anger and therefore they must be held to be authoritative. This is denied by saying that the Bauddha doctrines even on the abovesaid matters are not to be accepted as authoritative since only a limited³⁷ number (14 or 18) of vidyās (the four vedas, the upavedas, the angas of the veda, the 18 smṛtis, purāṇas, Daṇḍanīti) have been accepted by the vedic śistas as authoritative on matters of dharma and the works of the Bauddhas and Jainas are not included therein Just as milk though originally pure becomes useless and unreliable when put into a bag of dog-skin, so the doctrines of Bauddhas such as ahimsā, though based on truth, are useless and are not authoritative in themselves for the followers of the Veda.

The Tantravārtika holds that Jai. I. 3. 7 is an adhikarana by itself and is concerned with the authoritativeness of sadācāra (the customs and usages of śistas). Its position is that those usages are authoritative that are not opposed to express Vedic texts, that are practised by Vedic śistas under the belief that they are right conduct (dharma) and for which no visible motive (such as pleasure or the satisfaction of desires or the acquisition of wealth) can be predicateḍ Śistas are those who perform the religious acts expressly enjoined by the Veda They are not so called because they practise what is said to be sadācāra; otherwise there will be an argument in a circle (in the form 'sadācāra means what is practised by śistas and śistas are those who practise sadācāra '). The practices traditionally handed down from generation to generation which are observed by śistas (as stated above) with the idea that they constitute a part of dharma must be regarded as dharma and as leading to heaven³⁸. Practices do not become authoritative by the mere fact that no such motive or purpose can be postulated for them, but they become so only when they are observed by śistas as part of dharma. The Tantravārtika (p. 205) gives certain illustrations of such practices viz gifts, japa, mātṛyajña (offerings to the mother Goddesses), the festival of Indra's banner, fairs held at temples, fasts by maidens on the 4th day of a month, gifts of lamps on the first day of Kārtika, the spring ³⁹ festival on the first day of the dark half of Phālguna &c The Tantravārtika is careful to point out that many activities such as agriculture, menial service or trade that are the means of securing wealth and pleasures and that give rise to several fixed and varying acts and also such actions as eating sumptuous food, drinking, sleeping on soft beds, possessing a charming house and garden, engaging in painting, singing and dancing, enjoying the fragrance of sandalwood and flowers, all of which are common to mlecchas and Āryas, are not deemed by any one to be part of dharma and that it does not follow that, because a few actions (of śiṣṭas) are accepted as dharma, all their actions are to be looked upon as dharma.⁴⁰ In ordinary life certain practices only are deemed to be śiṣṭācāra, while there are certain other acts that are common to all human beings (including śiṣṭas), but are not so regardeḍ Certain practices such as worship of gods and honouring brāhmaṇas are seen to be common among all people and yet do constitute dharma, because that is deemed to be so by the śiṣṭaṣ Those practices alone are dharma that are observed by śiṣṭas only as obligatory on them and not other practices that are common to all beingṣ The Tantravārtika then refers to the Dharma- sūtra⁴¹ of Gaut. (I 3) and Āp. Dh. S. (II. 6. 13. 7–8) which say that ancient ( or great ) men in several instances were guilty of transgressions of dharma and of committing desperate acts, but on account of their spiritual merit they did not incur sin, but if a man of later days were to follow them in the same acts he would sink into hell It then gives twelve instances of lapses from good conduct (attributed even to avatārs) that were transgressions and either explains them away or says that they were due to wrath, hatred or other passions, were not intended by the authors (of those acts) themselves to be dharma and are not to be looked upon as śiṣṭācāra by modern meṇ The instances are: (1) Prajāpati who is said to have approached Usas, his daughter (Śat. Br. I. 7. 4. 1 or Ait. Br. 13 9); (2) Indra, who is described as the paramour of Ahalyā ( in the Subrahmaṇya litany ); (3) Nahuṣa, who occupied the position of Indra, made approaches to Śacī, the wife of Indra (Udyoga, chap.13 ff) and was transformed into an ajagara (Boa Constrictor); (4) Vasiṣṭha, who when his 100 sons were devoured by a demon, was so struck with grief that he threw himself bound into the Vipāśā river(Nirukta IX.26, Ādiparva chap 177 1–6=cr. eḍ 167. 1–6, Vanaparva 130, 8–9, Anuśāsana 3 12–13); (5) Purūravas who thought of dying by hanging or by being devoured by wolves (Rg. X. 95. 14, Śat. Br. XI. 5. 1–8) when separated from Urvaśī; (6) Viśvāmitra, who officiated as priest at the sacrifice of Triśaṅku that had become a cāṇḍāla through a curse (Ādiparva 71. 31–33); (7) Yudhiṣṭhira who took Draupadī as wife although she had been won by his younger brother Arjuna by his skill in archery and who prevaricated in order to bring about the death of his brāhmaṇa teacher Droṇa (Droṇaparva 190 55); (8) Kṛṣṇa Dvaipāyana (Vyāsa), who thought himself a perpetual student, procreated by niyoga at mother Satyavatī two sons on the widows of his brother Vicitravīrya; (9) Bhīṣma who lived on without belonging to any (of the four) āśramas and who is said to have performed several Aśvamedhas though he had no wife; (10) Rāma who performed Aśvamedha accompanied by a golden image of Sītā; (11) Dhṛtarāṣṭra, though blind, performed sacrifices; (12) Vāsudeva and Arjuna are described as being drunk and as having married Rukmiṇī and Subhadrā respectively who were their maternal uncle’s daughters (such marriages being forbidden). Kumārila, like a modern comparative mythologist, explains (Tantravārtika p. 208) that Prajāpati means ‘the Sun’ who approaches (i. e. rises after) the Dawṇ This explanation is as old as the Ait Br. 13. 9 where it is said that there are two views viz. it is either ‘Heaven’ or ‘Uṣas’ that is meant by the word ‘daughter.’ Similarly Indra and Ahalyā respectively mean the Sun and the Night and jāra means literally ‘one who makes to disappear or wither away’ (and not paramour) in that passage. Vide H. of Dh. vol. II. p. 1145 note 2550 for the epithet ‘Ahalyāyai jārā’ in the Veda and quotation from Tantra- vārtika. The story of Ahalyā and Indra varies in its details in the epicṣ Vide Rāmāyaṇa I. 48, Udyoga 12. 6. These two are instances of transgression of dharma (dharma-vyatikrama) and the next case of Vasiṣṭha is an example of sāhasa (through sorrow) Kumārila says that Viśvāmitra was prompted by his hatred of Vasiṣṭha and his pride, that the sin accruing from his act would be neutralized by his great austeritieṣ So his actions cannot serve as a model for imitation by otherṣ Vyāsa, who was a son of Satyavatī from Parāśara when she was a maiden, had Vicitravīrya as (his uterine) brother after Satya- vatī married Śantanu. In the case of a brahmacārin, sexual intercourse is most reprehensible (vide H. of Dh. vol. II. p 374)ṛ But Vyāsa agreed to niyoga because of his regard for his mother, as allowed by Gaut 18 4-5. Kumārila adds that Vyāsa could do so on account of his great past and future austerities, that another person with similar qualifications may do so even in spite of all prohibitions, since the Mahābhārata (Āśramavāsika 30. 24) says ‘sarvam balavatām pathyam’ (to the strong every- thing is wholesome or allowable) He gives an apt illustratioṇ An elephant can devour branches of trees without harm, but others doing so would meet death. Daksa V.10 prescribes ‘anāśra- mī na tiṣṭheta kṣaṇamekamapi dvijaḥ’ (a twice-born person should not stay even for a moment unattached to some āśrama). Bhīṣma remained unmarried out of filial devotion to his father, and Rāma could not think of another wife as he was so much attached to Sītā. Kumārila boldly asserts that Bhīṣma had a wife only for the purpose of the sacrifices he performed (though this is mentioned in no Itihāsa or Purāṇa) and relies upon the mode of proof called arthāpatti for this⁴². His words are given below. This and some other explanations offered by Kumārila shed a very interesting light on the theological apologetics of Mimāmsakaṣ Vide H. of Dh. vol. II. pp. 558 and 684 for Rāma and the golden image of Sītā. As to Yudhiṣṭhira's bringing about the death of his brāhmaṇa teacher the explanation is that the former performed Aśvamedha after the end of the war by way of prāyaścitta (vide H. of Dh. vol. II p. 147 n 333 and pp. 1236-37 notes 2674-75 for Aśvamedha as the remover of all sins). As to Draupadī being the wife of five brothers, Kumārila quotes Ādiparva 198. 14 (= or eḍ 190. 14) and offers several explanations (p 209), the most astounding being that there were five wives of the five brothers who were so similar that they were all referred to as one. As the Nyāyasudhā (p. 194) remarks, these various explanations were offered to show off great resourcefulness of interpretation (parihāra-vaibhavārtham), the proper one being that the practice of the Pāṇḍavas was an evil one and was not to be imitateḍ A blind man could not perform sacrifices and was excluded from inheritance. Vide H. of Dh. vol. II p. 157 ṇ 369 and vol. III p 609 n 1154. But Kumārila says that as Dhṛtarāṣṭra was blessed with sight for a while and saw his deceased sons through the miraculous power of Vyāsa (Āśramavāsiparva chap. 32-37) he might have been endowed with sight at the time of the sacrifices or what is meant is that he made gifts which are spoken of as sacrificeṣ As regards Subhadrā, Kumārila asserts that in spite of the fact that Subhadrā was said in the Ādiparva (219. 18 = cr. ed 211. 18) to have been the daughter of Vasudeva and sister of Kṛṣṇa, she was really the daughter of Kṛṣṇa's step-mother's sister or the daughter's daughter of the sister of his step-mother's father (a female cousin being often called a sister among the Lātas). Vide H. of Dh. vol. II. pp. 439-460 and notes to my edition of the text of V. Mayūkha (pp. 200-202). Kṛṣṇa's marriage with Rukminī is to be similarly explaineḍ It is somewhat surpris- ing that Khandadeva states that it is nowhere found that Subhadrā was the daughter of Vasudeva. Probably he had a corrupt reading of the Mahābhārata passage before hiṃ As to the charge of drinking spirituous liquor (ubhau madhu-savaksibau in Udyogaparva 59. 5) against both Vasudeva and Arjuna, they were both kṣatriyas and only brāhmaṇas were prohibited from drinking any kind of intoxicating drink (Gaut. II. 25), while to kṣatriyas and vaiśyas two kinds of wine called madhu (liquor from honey or madhuka flowers) and sidhu (rum) were allowed and only paiṣṭī (spirituous liquor distilled from flour) was forbidden (by Gaut. II. 25, Manu XI. 93-94).

Kumārila offers some other explanations of Jai⁴³ I 3 5-7 which need not be set out here.

Kumārila mentions certain practices of his times and concludes that they are to be condemned and not to be followed or regarded as authoritative. He says: ⁴⁴ even in these days brāhmaṇa women of Ahicchatra and Mathurā drink wine; northerners (northern brāhmaṇas)' engage in such transactions as the gift and sale of horses and mules that have a mane, asses, camels and animals with two rows of teeth and eat from the same plate with their wives, children and friends; brāhmaṇas of the south enter into matrimony with the maternal uncle’s daughter and take their meals while seated on a couch (of wicker work); both (brāhmaṇas of the north and south) take cooked food (kept in pots) that remains after their friends or relatives have partaken of it or that has been touched by them (at the time of eating); they chew betelnut leaves that have been touched by persons of all varnas, do not perform sipping of water (ācamana) at the end of the chewing of betelnut, wear clothes washed by washermen and brought on the back of asses; they do not avoid contact even with persons guilty of grave sins (except of brāhmaṇa murder). There are everywhere an infinite number of very obvious transgressions of the subtle dictates of dharma laid down for each man, caste or family, and that have a visible purpose behind theṃ It is not possible to regard such practices as authoritative ' Similarly Varadarāja, (1600-1660 A. D.) a pupil of Bhattoji Dikșita, in his work styled the Gīrvanapadamāñjarī in a dialogue between a Kanyakubja brāhmaṇa and a sannyāsin hailing from Vijayanagara makes the brāhmaṇa host say that each country has certain practices which are durācāras such as marrying a maternal uncle's daughter in the south, marriage of girls among southerners even before they are four years old, sitting down to a meal without bathing in Karnāțaka, in Mahārāștra the marriage of a younger brother before an elder one, in the hilly country the practice of niyoga (vide Mr. P. K. Gode's interesting paper in 'Bhāratīyā-vidyā ' vol VI pp 27-30).

According to Śabara, Jaimini in I. 3, 8–9 deals with certain words like yava, varāha and velasa, that have different significances among Āryas and Mlecchas (and therefore these sūtras constitute what is called yavavarādhikarana ). But Kumārila does not like this view of Śabara and proposes another topic for these two sūtras, viz. the relative strength of smṛti and sadācāra where they are in conflict. Here there are three ⁴⁵ possible views, viz. that both are equally strong and so there is an option in case of conflict, that ācāra is stronger, that smṛti is the stronger of the two. The prima facie view is that both are equally strong, since smṛti and sadācāra are both inferred to be based upon Veda. Kumārila's own final conclusion is that smṛti is of greater force than ācāra, that is, where they come in direct conflict smṛti should prevail. His position is that, though both smṛti and ācāra are to be deemed to be based on Veda, there is a difference between the two. People have full faith in such smṛtis as that of Manu and Manu and others are believed to have been inspired sages and are the propounders of the rules of dharma scattered about in various Vedic śākhās, while the same cannot be said about modern men and their practices cannot claim or possess the same weight and allegiance that the practices laid down by Manu and other sages caṇ From the practice of śistas one may infer a smṛti as the root thereof and then further one may infer a śruti as the root of the smṛti. Therefore ācāra is removed by two stages from the Veda, while smṛti is removed only by one stage from the Veda. Hence Kumārila says that in case of conflict smṛti should prevail over ācāra. The practices that are discussed here (acc. to Kumārila, Pārthasārathi and others) are such as the marriage with a maternal uncle's daughter or with a paternal aunt's daughterand the like that are in vogue among certain people and that are yet opposed to smṛtis (such as Manu XI. 171-72) and for which a visible motive can easily be found (kāmādhetvantaram spasta-meva dṛśyate, as the Śāstradipikā says).

Kumārila gives another (and so a third) explanation of Jai. I 3. 8-9 ⁴⁶ which need not detain us here. Jai I. 3. 15–23 constitute what is called Holākādhikaraṇa, or Sāmānyaśrutikalpanādhikaraṇa. The first two and the last two sūtras are the most important. Certain practices ⁴⁸ like the Holākā (spring) festival are observed by the easterners, certain others like Ahṇinaibuka (worship of growing Karañja or Arka or other trees as handed down in one's family) by the southerners, and the Udvrṣabhayajña (honouring oxen on the Full Moon of Jyestha and making them run a race) by the northernerṣ The question is whether, in making an inference about these practices being based on Veda, one was to suppose that the inferred Vedic text also should be restricted to the easterners and the like ⁴⁹. The pūrvapakṣa view is that the śruti to be inferred as the basis of the respective practices must be deemed to be restricted to certain persons only (such as the easterners i. e. prācyas &c.). The established conclusion is that should not be gifted on account of the prohibition contained in 'he does not give kesarin'. एष हि विशेषोभ्यानामन्वेभ्यो द्वयेभ्यो यदेपो दानं प्रतिषिध्यते न केसरिणो ददाति लोभयतोदनं प्रतिशृद्धातीति विश्वजिर्थेष सम्भावयते. The मीमांसाको. (pp 60-61) explains the सूत्रम् 'अथवाचार एव बलवान् ... तदङ्गीकरणे तु परं समा विभ्रतिपतिः भवेत् न तु स्मृतिमापयन्मीति सूत्रार्थ. ' सिद्धांन्तस्तु स्थितांशास्वस्थैव प्रतिपत्तिर्वलीपसी ।' on तमिनिशत्वात् the न्यायसूक्षा observes 'तस्मिनिमित्तादिति शाखलसामान्येन यकृतत्वाद् वेदवार्य शास्त्रं तद्वच्चरूपमत्राशमाचरणा श्रुतिर्मूलवत्परिसरूयार्थ्यत्' (p 212) such practices must be deemed to be meant for all, since the general rule about vedic injunctions is that they are applicable to all. The performer specially meant by each Vedic injunction is known in either of three ways,⁵⁰ viz. by capability, by non-prohibition and by the employment of a special epithet or attribute. When it is said ' svargakāmo yajeta ' then only the three twice-born classes are meant, for, they alone are capable of tending the sacred fires and of possessing Vedic learning and a śūdra is not a fit person to whom that injunction can apply. Those who are guilty of grave sins (pātaka) and the impotent are prohibited from performing Vedic riteṣ When the Veda says ' rājā rājasūyena yajeta ' there is a special attribute of the performer (viz. being a kṣatriya) prescribed by the śruti and so no one else can perform Rājasūya. When none of these three exists a Vedic vidhi is in general meant for all (sarvadharmā). The practices of Holākā, Vṛṣabhayajña and the like should not be held to be restricted to certain countries or people only, but should be inferred to be applicable to all. When a man leaves the east and goes to the south, he may still perform the Holākā festival ; while a man from the eastern country itself may not perform it at all. Further the words 'southern, eastern and northern' are relative. A country that is called southern may be to the north of another. Therefore Holākā and other practices are not invariably concomitant with particular countries or peopleṣ Nor can it be said that those practices require those particular countries for their performance in the way in which śruti expressly requires the Vaiśvadeva rite (one of the four cāturmāsyas) to be performed on a spot that slopes towards the east. The Tantravārtika⁵¹ points out that persons receive appellations from names of countries on various grounds as being born in a country or as residing therein or as coming from that country or as going to that country. Medhātithi on Manu VIII. 46 says the same. The Tantravārtika explains that the first two sūtras are meant to refer to another question also, viz. whether the rules of the gṛhyasūtras⁵² and of such dharmasūtra works as the sūtra of Gautama are authoritative only as to certain groups or are meant to be authoritative for all. He begins by saying that the purāṇas, the Manusmṛti and Itihāsa (i. e. the Mahābhārata) are equally authoritative for all people and then points out that the Gobhila-gṛhya and Gautama-dharmasūtra are traditionally accepted by the students of the Sāmaveda, that the dharmasūtra of Vasiṣṭha is accepted by the students of the Ṛgveda, the sūtra of Śankha-Likhita by the followers of the white Yajurveda and the sūtras of Āpastamba and Baudhāyana by the followers of the Taittirīya Śākhā. The Śāstradīpikā explains that an author who was a student of the Sāmaveda taught his own work to his pupils who also learned the Sāmaveda under him, that these pupils in their turn taught that work to others and in that way there arose a tradition among the students of the Sāmaveda to study the sūtra of Gautama. Therefore, to say even as to gṛhya works that they are restricted to particular groups of persons is not correct. Similarly in the case of practices there is no epithet or attribute that is common to all those who practise them or which distinguishes those who do not observe them from those that observe them and therefore it is not possible to restrict such practices as Holākā to particular countries or groups of people.

The requisites of valid customs as laid down by the eminent writers of the Pūrva-mīmāṁsā school may now be summariseḍ Such customs must be ancient, must not be opposed to the express texts of the Veda or of smṛti, must be such as to be regarded as obligatory by the sistas and must be observeḍ by them with tho consciousness that they are so, they must not have a seen or visible purpose, and they must not be immoral⁵³. It has to be remembered that the pūrvamīmāmsā writers did not lay down anything about the binding character of usages that were peculiarly secular but restricted their remarks to customs and usages that had more or less an unseen or spiritual purpose. Khandadeva emphasizes this by stating 'only those customs can be deemed to be based on the Veda that are not opposed to the Veda and smṛtis and that are observed by respectable people under the belief that thereby they are carrying what dharma dictates'⁵¹. Medhātithi on Manu⁵⁶ II 18 makes this position quite clear after quoting a verse of Kumārila 'a smṛti that is opposed to the Veda or is self-contradictory, or has a visible secular purpose or expressly states a motive (for observing its precepts) cannot be deemed to be based on the Veda'. The Mīmāmsā-kaustubha (p. 51 on Jai. I. 3. 7) quotes a verse to the effects that 'only those whose ancestors also observed certain usages handed down from generation to generation would not incur blame by observing them (if they are opposed to śruti or smṛti), but not others (who cannot rely on such a state of things)'. In a learned discussion on bādha Kumarila in his Tantravārtika (on Jai. III. 3. 14 pp. 859-860 ) brings together many bādhas out of which those that are relevant to this discussion are given in the note below ⁵⁶. It says that inference is set aside by direct perception, smṛti by śruti, a smṛti not composed by an authoritative person and that is self-contradictory is set aside by a smṛti that is authoritative and not self-contradictory, a smṛti that has a visible worldly purpose by one that has an unseen spiritual purpose, a smṛti based on inference drawn from a śruti or based upon a commendatory vedic passage is set aside by a smṛti based upon ( a direct ) śruti text, a usage is set aside by a smṛti and one usage is set aside by another usage that is accepted by more respectable people &c.