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State and Government in Ancient India c14.s2: State and the Legislative Power

State and Government in Ancient India c14.s2

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State and the Legislative Power

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It will be convenient to discuss the legislative powers of the state in ancient India in the present chapter. In modern times, the Central Assembly of the State usually wields these powers ; let us see whether such was the case in ancient India, when *sabhās* and *samitis* were flourishing in the country.

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The modern reader will be surprised to learn that neither the king nor the *samitis* claimed and exercized legislative powers in the Vedic period. In the modern age, laws as enactments of the sovereign legislature, are becoming all powerful, gradually displacing the customary, the traditional and the case law. Such, however, was not the case in the ancient times. Laws were either sacred or secular; if the former, they were based upon the sacred texts, if the latter upon the customs and traditions. Neither the king nor the *samiti* nor the Central Assembly, it was felt, had any jurisdiction in the matter. If the state had ever proceeded to bring about a forcible change in the customary law, it would have been overthrown in a very short time. Traditional law was as sacred as the divine law. Of course it also did change in the course of time; but the change was gradually and inperceptibly brought about by the silent operation of custom and not by the noisy process of legislation. A deliberate change in the customary law at the dictation of a legislature, it was apprehended, would spell disaster for the community.

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Neither the king nor the *samiti*, therefore, claimed or exercised any legislative functions in the Vedic period; and the same continued to be the case down to the age of the Smṛitis. This need not surprise us. For in the West also early philosophers like Plato did not regard legislation as a function of the ideal government. It was held that no actual man or group of men could ever possess so much of the spirit of true political science as is embodied in written laws and national customs of the people, which therefore must be obeyed unquestionably.¹

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¹ Dunning, *Political Theories*, I, pp. 35-6

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The Dharmaśāstra literature is particularly emphatic in pointing out that it is the king's duty to enforce the *dharma*, as determined by the sacred texts and accepted customs,² and not to enunciate it on the authority of himself or any state organisation. The Dharmaśāstra as well as the Nītiśāstra are promulgated by the Creator; it is the king’s duty to enforce the rules laid down in them, and not to introduce any changes on his own authority.¹

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² देशजातिकुलधर्मान् सर्वानैवैताननुप्रविश्य राजा चतुरो वर्णान्स्वधर्म प्रतिष्ठापयेन् । *V. D. S.* XIX.4 जातिजानपदान्धर्माञ् श्रेणोधमांश्च धर्मवित् । समीक्ष्य कुलधमांश्च स्वधर्मं प्रतिपादयेत् । *Manu*, VIII. 41

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¹ यश्चापि धर्म इत्युक्तो दंडनीतिव्यपाश्रयः । तमशंकः करिष्यामि स्ववशो न कदाचन ॥ *Mbh.* XII. 59. 116

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In the course of time, however, as the administration became more and more developed and life more and more complex, it began to be felt that the state should have powers to make its own rules and regulations. The rules in the old Dharmaśāstra and Nītiśāstra works, it was realised, had not provided for all possible contingencies, and changes were necessary both in the interest of the state and the subjects. The *Manusmṛiti* invests the king with the power to pass administrative orders which were to be obeyed by the subjects.² These orders were, however, to be in consonance with the Śāstra and tradition.³ Yājñavalkya also maintains⁴ that king’s orders were to be enforced by the law courts. *Śukranīti* (I. 292-311) shows that these orders mostly related to well-established laws and customs and exhorted the subjects to respect the elders, to cultivate concord in family, not to cause interference in boundaries, not to use false weights or make false accusations, not to commit misappropriation of property, not to give asylum to theives, not to fabricate false evidence or documents, etc. Sometimes they referred to the proper discharge of duty by government servants and often warned the subjects against talking about the king’s vices or divulging his line of policy.

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² तस्माद्धर्मं यमिष्टेषु स व्यवस्येन्नराधिपः ॥ अनिष्टं चाप्यनिष्टेषु तं धर्मं न विचालयेत् ॥ VII. 13

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³ Medhātithi on the above :— यतः सर्वतेजोमयः स राजा तस्माद्धेतोरिष्टेषु वल्लभेषु मंत्रिपुरोहितादिषु कार्यगत्या यं धर्मं कार्यव्यवस्थां शास्त्राचाराविरुद्धं व्यवस्येत् न विचालयेत् ।

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⁴ निजधर्माविरोधेन यस्तु सामयिको भवते । सोपि यत्नेन संरक्ष्यो धर्मो राजकृतश्च यः ॥ II. 186

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Aśoka's edicts also contain not merely moral exhortations but create new offences like the killing of animals on forbidden day's. They sanction a respite of three days to persons condemned to death and exhort the emperor's successors not to follow a policy of aggression.

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The works on polity, however, declare that the orders of the state were to be regarded as more authoritative and binding than even the rules of the Dharmaśāstra.¹ The same is the view of Bṛihaspati (II. 27). Nārada decalres that a person, who does not obey the rules enjoined by the king, should be immediately punished for the offence of showing contempt to the royal decrees.² Śukra states that the king should publish his ordinances at important places by pasting them on the wall for the information of the public.³

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¹ धर्मश्च व्यवहारश्च चरित्रं राजशासनम् । विवादार्थश्चतुष्पादः पश्चिमः पूर्वबाधकः ।। Book III, Chap. I

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² राज्ञा प्रवर्तितान्धर्मान्यो नरो नानुपालयेत् । दण्ड्यः स पापो वध्यश्च लोपयन्‌राजशासनम् ।। I. 13

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³ लिखित्वा शासनं राजा धारयीत चतुष्पथे । इति प्रबोधयन्नित्यं प्रजाः शासनडिंडिमैः ।। I. 131

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It is thus clear that though the state was usually expected to enforce the customs and laws mentioned in Dharmaśāstra, it began to be invested with some powers to make its own regulations from about the 3rd century B. C. At the time when these powers were granted, *samitis* or Popular Assemblies had already disappeared from the scene, and so they came to be exercised by the king in consultation with his ministers.

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The power of issuing *rājaśāsanas* or royal decrees was however not as extensive as the modern power of legislation. Personal, civil and criminal laws were usually determined by custom and the Smṛiti rules and were hardly affected appreciably by the royal power to issue ordinances. But in the realm of administration and taxation, kings could introduce several changes and reforms by the new powers conceded to them. They could create new offices and departments, promulgate (like Aśoka) their new policies and tap fresh sources of taxation. This resulted in the considerable enlargement of the royal powers and the curtailment of the rights of the people, since they were not effectively represented at the Central Government by a Popular Assembly, when kings came to be invested with these new semi-legislative powers.

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