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India as Known to Panini: A Study of the Cultural Material in the Ashtadhyayi c12.s2: Section 3. Law and Justice

India as Known to Pāṇini: A Study of the Cultural Material in the Ashṭādhyāyī c12.s2

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Section 3. Law and Justice

c12.s2.1

DHARMA AND NYĀYA—The word *Dharma* in Pāṇini has a two-fold meaning, firstly an act of religious merit, *e.g.* one who performs *dharma* is called *dhārmika* (IV.4.41); secondly it means custom or usage as in *sūtra* IV.4.92, according to which an act which does not deviate from *dharma* or usage is called *dharmya* (*dharmād-anapeta*). Pāṇini refers to payments fixed by long usage as *dharmya* (IV.4.47; VI.2.65). This second meaning of *dharma* crystallised in the earliest law, of which the oldest compilations were known as *Dharmasūtras*. Āpastamba commences his work with the statement: *Athātaḥ samayāchārikān Dharmān vyākhyāsyāmaḥ* (*Āpas., Dh. S.*, I.1.1), 'We shall now propound *Dharmas* or laws based on custom'. *Dharma* as a subject of study had been developed under the Vedic *Charaṇas* from before the time of Pāṇini, who refers to this subject in the sūtra *Charaṇebhyo Dharmavat* (IV.2.46), showing that the Vedic schools possessed distinctive texts dealing with *Dharma*, which were none else than the *Dharmasūtras*. Kātyāyana explains it (IV.3.120.11) by saying that a *Charaṇa* had two-fold texts: (1) *Āmnāya* or sacred tradition compiled as religious canon, and (2) *Dharma* or customary law compiled from actual life.

c12.s2.2

Pāṇini takes *Nyāya* as *abhresha*, non-deviation from traditional practice (III.3.37). An action in accordance with custom or usage was called *nyāyya* (IV.4.92), which was analogous to *dharmya*.

c12.s2.3

COURT—Matters concerning Civil Law were termed *Vyāvahārika* (V.4.34, *Vinayādi gaṇa*). *Dharma-pati*, master of law, also occurs in a *gaṇa* (IV.1.84). The arbitrator chosen by the parties to a dispute was called *stheya* (I.3.23, *vivādapadanirṇetā Kāśikā*). The plaintiff or complainant was known as *parivādī* (III.2.142) or *parivādaka* (III.2.146). A witness was *sākshī*, whom Pāṇini defines as one who is an ‘eye-witness’ (*Sākshād drashṭari samjñāyām*, V.2.91). Later on those who possessed hearsay evidence were also called *sākshī* (*Samaksha-darśanāt sākshī; śravaṇād-vā*, *Vishṇudharmottara*, VIII.13). According to the *sūtra Svāmīśvara*, etc. (II.3.39) a witness was named according to the transaction or object in connection with which he was an eye-witness, *e.g.* a witness in relation to cows was called *go-sākshī*, and his evidence would be of use only on that particular point in the complaint.

c12.s2.4

The practice of administering oaths to witnesses was also known. *Sūtra* V.4.66, *Satyād-aśapathe*, prescribes a two-fold linguistic formation from the word *satya*: (1) *satyā-karoti* was used in connection with the payment of earnest money to settle a bargain; (2) *satyaṁ karoti* was used in connection with the taking of oath. Manu informs us that this form of oath was reserved for witnesses of the Brāhmaṇa caste (*satyena śāpayed vipram*, VIII.113). For example, it was enough for a Brāhmaṇa to declare solemnly: ‘I shall state the truth’, and then to proceed with his evidence. The form of the oath for other castes was different and of a more materialistic nature. This nice distinction known to Pāṇini must have been developed in the *Dharmasūtras*, whence the tradition came down to the *Smṛitis*.

c12.s2.5

A surety was called *pratibhū* in relation to the loan for which he was bound as surety (II.3.39; III.2.179).

c12.s2.6

CIVIL LAW—Of the various items of *Vyavahāra*, only inheritance is referred to in the *sūtras*. One who inherits is called *dāyāda*, and the property which he inherits *dāyādya* (*Dāyādyaṁ dāyāde* VI.2.5). The *dāyāda* was designated according to the object in which he had beneficiary interest, *e.g.* if of several claimants one had an interest in cows, he alone was called *go-dāyāda* (II.3.39).

c12.s2.7

A co-sharer is referred to as *aṁśaka*, *i.e.*, entitled to a share in the property (*Aṁśaṁ hārī*, V.2.69; cf. Manu, IX., 150-53 for division of *aṁśas*). The force of the suffix in the word *hārin* (*āvaśyake ṇiniḥ*) would make *aṁśaka* an heir with legal sanction. Both *dāyāda* and *aṁśa* are technical terms known to the *Dharmasūtras* (cf. *Vasishṭha Dh.S.*, 17. 25; 17. 48, 49, 51, 52).

c12.s2.8

CRIMINAL LAW—Crime was called *sāhasikya* (I.3.32). Various forms of crime are referred to, *e.g.* theft (*steya*, V.1. 125), robbery (*luṇṭāka*, III.2.155) and way-laying (*paripanthaṁ cha tishṭhati*, IV.4.36). The word *aikāgārika* means a thief, who waits for an opportunity to enter a house when lonely. Buddhist texts use the term in a different sense, *i.e.*, a monk who begged his food from one house only. In the *Majjhima Nikāya* Gautama describes himself as an *ekāgārika*, *dvyāgārika* and *saptāgārika* (Mahāsīhanāda Suttanta).

c12.s2.9

Various forms of the use of defamatory language and of expressing censure are given.

c12.s2.10

Punishment both by way of fines and physical torture is mentioned. The former was called *daṇḍa*, as in *sūtra* V.4.2 which regulates the expression for indicating the amount of fine, *e.g.* a fine of two *pāda* coins was mentioned as *dvipadikāṁ daṇḍitaḥ*; similarly *dviśatikāṁ daṇḍitaḥ*, a fine of 200 *kārshāpaṇas*. An accused adjudged for punishment was called *daṇḍya* (V.1.66, *daṇḍam arhati*; cf. Yāska, II.2 referring to one fit for clubbing and called *musalya*). Mutilation of limbs was called *chheda*, and the criminal so punished *chhaidika* (V.1.64). Capital punishment was *śīrsha-chchheda* (V.1.65). Heinous crimes as infanticide and murder (*kumāra-ghāta*, *śīrsha-ghāta*, III.2.51) are mentioned; so also destroying an embryo (*bhrāuṇahatya*, VI.4.174), and killing a Brāhmaṇa (*Brahmahā*, III.2.87). Kauṭilya was in favour of stern administration of criminal justice and mentions *uchchheda* or death (II.13, p. 87) and *chheda* or mutilation of limbs as punishments for serious crimes (*Artha.*, IV.11, p. 229).

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