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Age of the Nandas and Mauryas c11.s16: Justice

Age of the Nandas and Mauryas c11.s16

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Justice

c11.s16.1

For the administration of justice, there were two sets of courts besides the village tribunals that dealt with petty cases under the guidance of the headman and elders; these were styled the *Dharmasthīya* and *Kaṇṭakaśodhana*. At the top of the whole system was the king who could no longer make himself personally responsible for the entire administration of justice as in the smaller kingdoms of the earlier times reflected in the early *dharma-sūtras*, but was ever ready to hear matters on appeal and dispose of them without undue delay. The *dharmasthīya* courts were presided over by three *dharmasthas* learned in sacred law and three *amātyas*, and there were courts in all important cities and other convenient centres; rules were laid down about circumstances which rendered agreements void, and about procedure in court—plea, counterplea and rejoinder. The main heads of civil law dealt with (1) marriage and dowry including divorce (*mokṣa*), (2) inheritance, (3) houses, house-sites and disputes regarding boundaries and water-rights, and trespass, (4) debt, (5) deposits, (6) serfs, (7) labour and contract, (8) sale, (9) violence, (10) abuse, (11) assault, (12) gaming and miscellanea. In many respects Kauṭilya is seen to lay down rules that alter and liberalise the precepts of the ancient texts, and in his hands the exposition of the whole subject is more rational and progressive than orthodox and conservative. In the absence of witnesses the ordeal was resorted to. Punishments were carefully graded and executed by royal authority; they included fines, imprisonment, whipping and death with or without torture. There must have been in existence also caste *panchāyats* and guild courts which regulated the affairs of communities and professions and dealt with disputes among them in the first instance.

c11.s16.2

The *kaṇṭakaśodhana* (removal of thorns) courts were presided over by three *pradeṣṭṛis* or three *amātyas*. The basis of the distinction between these courts and the *dharmasthīya* courts is nowhere clearly explained. The suggestion has been offered¹ that while the dharma courts dealt with disputes brought before them by the parties and strictly corresponded to our civil courts, in the *kaṇṭakaśodhana* courts the actions started on the initiative of the executive. This looks plausible in the light of modern juristic ideas, but it may well be doubted if the distinction between the two sets of courts was so simple and clear-cut. For instance, while assault and hurt were generally dealt with by the *dharma* courts, assault ending in manslaughter was reserved for the *kaṇṭakaśodhana*.¹ The truth seems to be that the *kaṇṭakaśodhana* courts were a new type introduced to meet the growing needs of an increasingly complex social economy, and to implement the decisions of a highly organized bureaucracy on all matters that were being brought under their control and regulation for the first time and were unknown to the old legal system. These courts were special tribunals which followed a more summary procedure than the regular *dharma* courts that dealt with *vyavahāra* as developed in the tradition of the *dharmaśāstras*; their functions were only quasi-judicial, and their methods had more in common with those of a modern police force than of a judiciary. Their aim was to protect the state and people from baneful actions of anti-social persons, the thorns (*kaṇṭaka*) of society. They resorted to the use of spies for the detection of such activity and of torture for the extortion of confessions. The merchant who used short measure or false weights, the artisan who failed to keep his contract with his employer, the physician who caused the death of his patient by his lack of skill, the official who swindled the state or took bribes, and the conspirator who contemplated treason against the king—were all dealt with by these courts. Theft, murder, burglary, combinations to raise or depress prices, rape, defiant violation of caste rules and so on, are also among the offences brought before these courts. In these courts we may well recognize another innovation of Kauṭilya, based on foreign models and calculated to strengthen the power of the monarch and the position of the new bureaucracy. They represent an effort at once to safeguard government and society from the possible evils of the new order that was being introduced. Government control and regulation of activities of the people was becoming more and more far-reaching and ubiquitous, and new offices carrying vast discretionary powers were coming into existence ; a mass of new regulations bearing on agriculture, trade and industry was being promulgated ; to secure the enforcement of these regulations and to see that they were not either employed by officials to tyrannize over the people or evaded by the people with the connivance of corrupt officials, there was required some machinery which would furnish the drive needed and provide the necessary checks and controls ; the *kaṇṭakaśodhana* courts were calculated to do all this. Later law books do indeed talk of *kaṇṭakaśodhana*¹; but in them we miss the note of urgency that dominates the chapters of Kauṭilya on the subject, though the restraint of the wicked came generally to be accepted as part of the king's duty ancillary to the protection of the lawful citizens (*duṣṭa nigraha śiṣṭa paripālana*).

c11.s16.3

¹ Kane, *History of Dharmaśāstra* III. p. 257.

c11.s16.4

¹ KA. III. 20. *vīpattau kaṇṭakaśodhanāya* niyeta—Ganapati Sastri's reading.

c11.s16.5

¹ Manu IX. 252-3.

c11.s16.6

Aśoka maintained the framework of polity as he found it though he created some new offices for the spread of Dharma and sought to impart by example and precept an earnest moral tone to the entire system of administration ; a detailed account of the emperor's work as administrator will be given in the chapter on his reign.

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