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State and Government in Ancient India c19.s1: Popular Courts

State and Government in Ancient India c19.s1

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Popular Courts

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In addition to the above official courts, there were a number of popular courts in the ancient Indian polity, which constituted one of its special features. We have already indicated how the *sabhā* of the Vedic age probably functioned as a popular court. The *Arthaśāstra* polity was a highly centralised one, but it left a number of causes to be decided by unofficial courts. Disputes about the boundaries were to be settled by the village elders.¹ Causes concerning the affairs of the temples, Brāhmaṇas, ascetics, women, minors, old and invalid persons were also to be decided by the Dharmasthas or unofficial jurors.² What precisely was the nature of these cases, and how and by whom the Dharmasthas were selected and what was their number is not known to us.

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¹ क्षेत्रविवादं सामन्तग्रामवृद्धाः कुर्युः। III. 9

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² देवब्राह्मणतपस्विस्त्रीबालवृद्धव्याधितानां ... कार्याणि धर्मस्थाः कुर्युः॥ III. 20

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Popular courts are for the first time mentioned in *Yājña-valkya-Smṛiti*. They are unknown to the Dharmasūtras as well as to the *Manusmṛiti*. Whether they were not evolved before the Christian era or whether they were not mentioned as being unofficial, it is difficult to say. Probably the latter was the case. Yājñavalkya mentions three types of popular courts, *Pūga*, *Śreṇī* and *Kula*; his commentator Vijñāneśvara expressly describes them as agencies of adjudication other than the official ones⁴. These same courts are mentioned in the same order by Bṛihaspati, who points out that an appeal will be to the Śreṇī court from the decision of the Kula court and to the Pūga court from the decision of the Śreṇī court.⁵ In the Vijayanagar administration these courts were called *amukhya* or secondary courts to distinguish them from the royal tribunals.

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⁴ राजसभातो निर्णयिकान्तरमाह याज्ञवल्क्यः।

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⁵ I. 28. - 30

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Let us now ascertain the nature of these courts. Kula court has been defined by the *Mitāksharā* as consisting of a group of relations, near or distant. Kulas or joint families were often very extensive in ancient India; if there was a quarrel between two members, the elders used to attempt to settle it.

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³ नृपेणाधिकृताः पूगाः श्रेणयोथ कुलानि च। पूर्वं पूर्वं गुरु ज्ञेय व्यवहारविधौ नृणाम्॥ II. 29

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The Kula court was this informal body of family elders.¹ Or alternatively, it may have been a court taking cognisance of quarrels arising in family units of ten, twenty or forty villages. The Gopa of the *Arthaśāstra* was in charge of such units of villages, and they might well have had an informal court of their own, consisting of family elders.

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¹ जातिसंबंधिबंधूनां समूहः कुलम् ।

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When the effort at family arbitration failed, the matter was taken to the Śreṇi court. The term Śreṇī was used to denote the courts of guilds, which became a prominent feature of the commercial life in ancient India from *c.* 500 B. .C. They are frequently mentioned in the Buddhist literature and the *Mahābhārata* gives a glorious description of the guild chiefs assembled at the coronation of king Dharma. Śreṇis had their own executive committees of four of five members and it is likely that they might have functioned as the Śreṇī courts also for settling the disputes among their members. Though mentioned for the first time by Yājñavalkya, the Śreṇī court might well be placed a few centuries earlier. There is definite evidence to show that guild courts continued to function down the 18th century in Mahārāshṭra; probably the same was the case in the rest of the country.

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The Pūga court of Yājñavalkya consisted of members belonging to different castes and professions, but staying in the same village or town. If the *sabhā* or the village assembly of the Vedic period was occasionally settling the village disputes, the *sabhā* court would be the earlier prototype of the Pūga court. *Grāmyavādi* of the *Taittirīya-saṁhitā* would be probably a member of that court. The Grāmavṛiddha court of the *Arthaśāstra* would also be the forerunner of the Pūga court. Pūga court later became known as Gota court in Mahārāshṭra, as we have already pointed out in Chapter XI. In Karanāṭak it was known as Dharmaśāsana during the 17th century A. D.; the Mahājanas (elders) of the village and the twelve village servants were represented upon it and it used to decide private disputes, its decisions being enforced by the State as a matter of course.¹ The popular village court thus played a prominent part almost throughout the long course of Indian history.

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¹ See Madaksiri copper plate (Anantpur District) dated Śaka 1578. *Inscriptions from Madras Presidency*.

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For a long time there was a great misconception about the causes that were responsible for the widespread functioning of these popular courts. They were well-known to be functioning down to the beginning of the British rule, and they soon disappeared when it was well established. It was therefore argued by Sir Henry Maine and others that the prevailing anarchy in the country,² which did not allow any regular royal courts to function at the village level, was the main cause of their existence. As soon as law and order were established in the country and regular official courts began to function efficiently, these Panchāyat courts naturally died down.

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² H. S. Maine; *Village Communities in the East and West*, p. 68

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This theory, however, is untenable,. It was the considered and long-established policy of the governments in Ancient India to encourage these popular courts and to enforce their decisions. Though these courts were essentially non-official and pupolar, they had the royal authority behind them. Yājñavalkya describes them as sanctioned by the king.³ The government has been advised to execute their decrees because the state had delegated these powers to them.⁴ In the medieval and Maratha periods of the history of Mahārāṣṭra we come across several cases of kings like Shivaji, Rajaram and Shahu refusing to entertain any cases at the first instance though pressed to do so. Muslim rulers also like king Ibrahim Adil Shah of Bijapur used to do the same, even when one of the parties was a Muslim and complained that there was a prejudice against him on that score.⁵ It will be thus seen that it was the considered policy of the Government that these popular village courts should flourish; it refused to entertain any suits except in appeals against their decisions; it also gave effect to their decrees. When the British rule was established, the new government began to entertain suits at first instance in its courts. It further declined to execute the decres of the village Panchāyats. The latter, therefore, naturally died down.

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³ See *ante*, p. 250 n. 3

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⁴ तैः कृतं यत्स्वधर्मेण निग्रहानुग्रहं नृणाम् । तद्राज्ञाप्यनुमन्तव्यं निसृष्टार्था हि ते स्मृताः । II. 30

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⁵ A. S. Altekar. *Village Communities in Western India*, pp. 45-6

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Ancient India appreciated and encouraged the village Panchāyats and guild courts for several reasons. They encouraged the principle of self-government. They reduced the burden of the central administration. And above all they helped the cause of justice. The members of a guild or a village Panchāyat have more or less reliable knowledge of the facts in dispute as the parties belonged to their guild or locality.¹ It is difficult for a witness to come to a village court and tell a brand lie in the presence of his compeers whose respect he will be thereby forfeiting.

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¹ अभियुक्ताश्च ये यत्र यन्निबन्धनियोजनाः । तत्रत्यगुणदोषाणां त एव हि विचारकाः । *Śukra*, IV. 5. 24

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There was no limit to the jurisdiction of the popular courts in civil matters. They could not, however, try criminal cases of a serious nature. Minor offences, including even accidental homicides, could however, be disposed of by them.

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The parties to a suit had to pay 'stamp duties'. It was 10% in the case of the successful litigant and 5% in the case of his opponent. A portion of the income from this source was utilised for the payment to the bailiff and clerk of the court, and a portion was paid as an honorarium to the Panchas.

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The *mehjars* or the Panchāyat judgments in Mahārāṣṭra are seen to be signed by about thirty to forty Panchas belonging to different castes and professions, including the village grain-sharing functionaries. It is, however, likely that only a small number of Panchas, who were senior and well acquainted with the customary law, participated in the actual trial. In Vijayanagar administration, there was a different set of Panchas for each case. If the case required a knowledge of law, Brāhmaṇas predominated; if land tenures were involved, the Mahajanas were coopted. Caste disputes were settled by the heads of the different castes. The cases were usually tried in the local temple, whose atmosphere inspired awe and stifled any tendency to tell a lie.

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An appeal was possible against the decision of the Panchāyat to the Tehsil or sub-divisional Panchāyat. The final appeal lay to the royal court at the capital.

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We may briefly refer to certain fundamental principles that were followed by the Hindu jurisprudence. It insisted that the trial should be in public¹ and that the cases should be normally disposed of serially except in the case of urgency.² Laws's delay has been condemned by the Smṛiti writers.³ The executive was not to interfere with the judiciary.⁴ The judges were to be impartial; during the pendancy of the suit, they were not to have any private talk or relations with the parties.⁵ If a judge was guilty of foul play, partiality or harrassment, or did not follow the correct legal procedure, he was to be punished. The clerk of the court, not taking the depositions correctly, was severely dealt with (*A.S.*, III. 20 ; IV, 9). In the sphere of the criminal law also, we have some interesting and important principles enunciated. A crime was regarded as committed, if there was intention to commit it, even if accidental circumstances resulted in the attempt being foiled.⁶ Abetment, whether by supplying funds⁷ or weapons or boarding and lodging, was also punishable. In the case of treason, even the desire to rebel or capture forts by force was punishable.¹

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¹ नैकः पश्येच्च कार्याणि वादिनां शृणुयाद्वचः । रहसि च नृपः प्राज्ञः सभ्याश्चैव कदाचन । *Śukra*, IV. 5. 6

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² क्रमागतादिवादांस्तु पश्येद्व्वा कार्यगौरवात् । *Ibid*, IV. 5. 157

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³ न कालहरणं कार्यं राज्ञा साधनदर्शने । महान्दोषो भवेत्कालाद्धर्मव्यापत्तिलक्षणः ॥ *Ibid*, IV. 5. 167

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⁴ नोत्पादयेत्स्वयं कार्यं राजा वाप्यस्य पुरुषः । *Manu*, VIII. 43

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⁵ अनिर्णीते तु यद्यर्थे संभापेत रहोत्थिना । प्राड्विवाकोऽथ दण्ड्यः स्यात्सभ्याश्चैव विशेषतः ॥ *Kātyāyana* in P. M. III. 1. 35

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⁶ सृष्ठश्चेन्नाह्मवधेऽहत्वापि । *G. D. S.*, III. 4. 11

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⁷ यः साहसं कारयति स दाप्यो द्विगुणं दमम् । *Yaj.*, II. 231

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⁸ आरंभकृतसहायश्च तथा मार्गानुदेशकः । आश्रयद्रव्यदाता च भक्तदाता विकर्मिणाम् ॥ Kātyāyana in Aparārka p. 821

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¹ *Arthaśāstra*, Bk. IV. 11

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An accused could plead duress,² self-defence or minority in his defence. Jurists differ as to the age when minority would cease to be a defence. Some granted absolute exemption till the age of 8, others till the age of 15. Accused was usually entitled to the benefit of doubt.³

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² बलाद्दत्तं बलाद्भुक्तं बलाच्च प्रतिपादितम् । सर्वान्बलकृतानर्थानकृतान्मनुरब्रवीत् । *Manu*, VIII. 181

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³ न च संदेहे दण्डं कुर्यात् । *Ap. Dh. S.*, II. 5. II. 2

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Fines, imprisonment, banishment, mutilation and death sentence were the punishments in vogue. Fines were most common ; their amount differed according to the crime. Those sentenced to imprisonment were often made to work on roads and in public places, so that there should be a deterrent effect.⁴ Mutilation of the hand was often inflicted upon the thief. Banishment was sometimes imposed upon the members of the privileged classes. Death sentence was imposed upon murderers, traitors, dacoits and persons guilty of heinous sex offences. Punishment was to be imposed upon the criminal only ; his relations were not to be victimised.

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⁴ बन्धनानि च सर्वाणि राजा मार्गे निवेशयत् । दुःखिता यत्र दृश्येरन्विकृताः पापकारिणः । *Manu*, IX. 288

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When deciding upon punishment, the judge was to take into consideration the nature of the crime, the motive of the accused, his age and status in society. In ancient India punishments often differed with the caste of the accused ; lighter punishments were recommended to Brāhmaṇas and Kshtriyas. In early times the wergeld for the murder of a Brāhmaṇa was a thousand cows, for that of a Kshatriya 500 cows, for that of a Vaiśya 100 cows and for that of a Śūdra only ten cows. In later times fines often varied with the caste of the offenders. This is no doubt a regrettable feature of our jurisprudence. Our jurists recognised that the sin of a Brāhmaṇa would be a hundredfold that of a Śūdra for the same offence. His punishment also should then have been more severe instead of being lighter. We should however not forget that all over the world till the last century, the privileged classes like the nobles and bishops did enjoy similar preferential treatment. Our estimation of our culture would however have been higher, if we could have risen above the prejudices of the times and shown impartiality in the award of punishments.

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Jails and jailors are rather rarely referred to. The latter is called Bandhanāgārādhyaksha in the *Arthaśāstra*, where Kauṭilya tells us how he was to be punished if he took bribes from prisoners or belaboured them or did not give them their full rations. Male and female prisoners were kept in separate wards. The jail department was under the charge of Sannidhātā, who was to select sites for their location and build the necessary buildings (Bk. II. 4).

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We shall now give a brief description of the judicial procedure. The plaintiff was first to file the plaint stating precisely his case and claim. He was not allowed to vary his pleas. The defendant was then summoned with notice and required to submit his written statement in reply. He could either deny or admit the claim, or plead estoppel or *res judicata*. After considering the plaint and the written statement, the judge would call upon the parties to cite evidence. The evidence could be oral or documentary; the latter was regarded as more weighty. Possession was also possible to be adduced in proof of a claim.

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If all other evidence failed, ordeals were permitted. The ordeal sounds strange to the modern ear, but it continues even in the present courts under the form of a special oath, if the parties agree to it. In the ancient and medieval times, the ordeals were fairly common both in Europe¹ and India owing to the prevailing belief in divine intervention on behalf of the

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¹ When his hero, though innocent, fails in the ordeal, Scott observes in the *Marmion*, V. 21 :—

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‘Perchance some form was unobserved,
Perchance in prayer or faith he swerved,
Else, how could the guiltless champion quail.
Or how the blessed ordeal fail?’

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just and the innocent. The Smṛiti ordeals were not quite irrational. It was only when no other evidence was available, that a party was permitted to establish his case by an ordeal. In the fire ordeal as described in *Yājñavalkya*. II. 103, seven green leaves of *palāśa* were placed on the palm of the party and then, after the recitation of the Mantras, which prayed God Fire to protect the party if he was innocent, a red hot iron ball was placed on the palm of his hand and the party was required to take seven steps and then throw out the ball. His hand was then covered and tied in a piece of cloth, and if after three days, no injury was noticed, he was pronounced to be in the right. An age which believed in divine intervention naturally did not regard this procedure as irrational. The ordeals by water, poison and weighment were of the same nature and allowed reasonable chance to an innocent man to come out successful. For want of space we cannot describe them in details.

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When the evidence was over, the judge would in consultation with *sabhyas* or jurors give his decision. A copy of the judgement was given to the parties. The unsuccessful party could appeal to the higher court.

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Pleaders rarely figure in the ancient Indian judicial system. It is argued by some that Manu refers to a pleader by the term *Vipra* (Brāhmaṇa) when he points out how the witnesses, the sureties and the judge labour for others and how *Vipra* (Brāhmaṇa), the creditor, the merchant and the king profit in the transaction.¹ This is quite possible, but we cannot exclude the possibility of the *Vipra* referred to here being a member of the jury (*sabhya*), who might have received an allowance. A very clear case of a lawyer pleading for a party for a fee occurs in Asahāya’s commentary upon *Nārada-Smṛiti*, where one Smārtadurdhara instigates a party not to pay the debt and undertakes to secure exemption from a law court in this connection, if he is paid the fee of a thousand *drammas*.¹ Śukra also refers to the practice of appointing recognised agents in the law courts to defend a case when a party was himself unable to do so owing to his other preoccupations or ignorance of the law. Such agents were known as Niyogins and they were expected to guard the interests of their parties very carefully. If they colluded with the other party, they were punished by the state.² The lawyer's fee varied from 6% to ½% according to the value of the property; the larger the corpus of the property, the smaller was the percentage of the fee. It is therefore clear that when the law and legal procedure became complex from about 500 A. D., scholars well trained in Smṛitis were often engaged by the parties to represent their cases. Such cases however were not frequent, and there is no evidence to show that there was a regular class of persons in ancient India, whose profession and status were the same as those of the modern lawyer and whose members were licensed by the state to follow the profession.

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¹ त्रयः परार्थे क्लिश्यन्ति साक्षिणः प्रतिभूः कुलम् । चत्वारस्तूपचीयन्ते विप्र आढ्यो वणिङ्नृपः । VIII. 169

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¹ *Ṛiṇādāna*, V. 4

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² व्यवहारानभिज्ञेन ह्यन्यकार्याकुलेन वा।\ प्रत्यर्थिनार्थिना तज्ञः कार्यः प्रतिनिधिस्तथा ॥\ लोभेन त्वन्यथा कुर्वन्नियोगी दण्डमर्हति । IV. 5. 114-5

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