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Public Administration in Ancient India c14: Chapter XI

Public Administration in Ancient India c14

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English

Chapter XI

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LAW in Ancient India was regarded as higher than society, and it was held the duty of society to conform to Law. Strictly speaking, therefore, there could be no such thing as legislation in the early ages. In fact, if the term ‘law’ be understood in the limited sense of a command of the sovereign authority, there was no law at all. And yet there were rules of conduct which were binding on all, and violations of which were visited with punishments of some kind or other. Law (Dharma), as understood in the early times, was the entire body of rules by which society was believed to be held together, and which was supposed to conduce to the well-being of the people. Such rules fell into two classes, namely, (1) moral and religious rules, and (2) positive laws. In Ancient India, as in other early societies, these two classes were dealt with together; but though no sharp line of division was drawn between the two, the distinction was more or less clearly understood. People were cognisant of the fact that the sanction for the first kind of rules was religious or social, and that for the second, political; and the recognition of this distinction became more and more clear as society advanced in civilisation. In the course of time a body of rules composing secular law (Vyavahāra) was evolved, which soon acquired as great an authority as the Sacred Law.¹

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¹ In later times, although ‘dharma’ was regarded as the principle underlying law, ‘vyavahāra’ became what may be called lawyer’s law. Thus Abul Fazl, writing in the sixteenth century of the legal system of the Hindus, refers to ‘vyavahāra’ and not to ‘dharma.’ According to the Chānakya-sūtra, “ ‘vyavahāra’ is more important than ‘dharma.’ ”

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The belief prevailed among the ancient Āryans of India, as among other early communities, that all laws, political as well as moral, were of divine origin. And the divine will was assumed to have been manifested in the Sacred Books and in immemorial customs. These, then, were the fountain-heads to which people were to look for their knowledge of law. Thus, Gautama, one of the earliest writers on law, says: “The sources of law are the Vedas, and the tradition and practice of those who know the Vedas.”² But he adds that the administration of justice should be regulated by the Vedas, the Institutes of the Sacred Law, the Angas, the Purānas, the (special) laws of countries, castes and families (not being opposed to the sacred records), the usages of cultivators, traders, herdsmen, money-lenders, and artisans.³ Āpastamba mentions the Vedas as the primary source of law, and the agreement among learned men as the secondary source.¹ Bodhāyana’s list is slightly different. He says: “The Sacred law is taught in each Veda. (The Sacred law) taught in the Tradition (Smriti, stands) second. The practice of the Sishtas (stands) third.”² According to Manu, the sources of law are: (1) The Vedas, (2) the Smritis, (3) good customs, and (4) self-satisfaction.³ Yājnavalkya gives Manu’s four sources, but adds ten more as subsidiary sources, thus bringing the total up to fourteen. The secondary sources are (5) deliberation, (6) decisions of Parishads and of persons learned in the Vedas, (7) the Purānas, (8) Nyāya, (9) Mīmāmsā, (10) the Dharmasāstras, (11) temporary needs not inconsistent with one’s duties, (12) royal edicts, (13) special usages of corporations, guilds, and communities of heretics, etc., and (14) local customs.⁴ Manu also incidentally refers to the primeval laws of countries, of castes, of families, and of heretics and companies (of traders and the like) as rules governing human conduct.⁵

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² Gautama, XI. 19-21.

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³ Gautama, I. 1, 2.

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¹ Āpastamba (Sacred Book of the East), I. 1, 2, 3.

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² Bodhāyana, I. 1, 1, 1-5.

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³ Manu, II. 6 and II. 12.

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⁴ Yājnavalkya, I. 1, 2 and I. 1, 8.

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⁵ Manu, I. 118.

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Let us try to examine these sources. The Vedas contain very little of what is called positive law, and they are practically of no importance to us from the juridical standpoint. The Smriti works, on the other hand, are very important. They, in fact, formed the chief basis on which the legal system of the Hindus was built up. The earliest Smriti works were in Sūtra form, and only a few fragments of some of them are now known to us. These were probably composed between the tenth and the fifth centuries B.C. They were gradually superseded by the later works composed in verse and known as the Dharmasāstras. The material of the Dharmasūtras was worked into the Dharmasāstras, but many additions were made at the time of the change of form. The Dharmasāstras themselves underwent many alterations in the course of time.

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Yājnavalkya gives the following list of the compilers of Dharmasāstras : Manu, Atri, Vishnu, Hārīta, Yājnavalkya, Usanas, Angiras, Yama, Āpastamba, Samvarta, Kātyāyana, Brihaspati, Parāsara, Vyāsa, Sankha, Likhita, Daksha, Gautama, Sātātapa, and Vasistha.¹ This list, as Vijnānesvara points out, is only illustrative, and not enumerative, for we know the names of other compilers besides these, the most notable among them being Nārada.

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¹ Yājnavalkya, I. 4-5.

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The third, and in some respects the most important source of law, was custom, as it prevailed among Sishtas. Āpastamba says: "It is difficult to learn the sacred law from the Vedas (alone); but by following the indications, it is easily accomplished." These indications are the practices of Sishtas.²

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² Āpastamba, II. 11, 29, 13. He further explains the passage thus: The indications for these (doubtful cases are)—"He shall regulate his course of

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The ‘Siṣṭas,’ according to Bodhāyana, are persons “who are free from envy, free from pride, contented with a store of grain sufficient for ten days, free from covetousness, and free from hypocrisy, arrogance, greed, perplexity, and anger.” “(Those are called) Siṣṭas,” adds Bodhāyana, “who, in accordance with the sacred law, have studied the Veda together with its appendages, who know how to draw inferences from that, (and) who are able to adduce proofs perceptible by the senses from revealed texts.”¹ Siṣṭas in Bodhāyana’s opinion were to be chiefly found in Āryāvarta, and, therefore, the rule of conduct which prevailed in that country was to be held authoritative. Manu gives a slightly different definition of the term. According to him, the custom handed down in regular succession (since time immemorial) among the (four chief) castes and the mixed races of the country called Brahmāvarta was regarded as the conduct of virtuous men, and the custom of Brāhmaṇas in the country of Brahmarshi ranked next in importance.

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¹ Bodhāyana, I. 1, 1, 5-6.

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Customs were of various kinds: some were general, that is to say, prevailing among the whole

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action according to the conduct which is unanimously recognised in all countries by men of the three twice-born castes, who have been properly obedient (to their teachers), who are aged, of subdued senses, neither given to avarice, nor hypocrites. Acting thus, he will gain both worlds. Some declare that the remaining duties must be learnt from women and men of all castes.”

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community; some were tribal, that is, observed by a particular tribe; some appertained to a particular class, such as tradesmen, artisans, or cultivators; and some were confined to single families. There is a dispute among the compilers of the laws as to the extent of the validity of customs. Some, like Bodhāyana, are of opinion that all customs should be recognised;¹ while others hold that no heed should be taken of any practices that are opposed to the tradition of Siṣṭas. As a matter of fact, the customs of the non-Āryan races who entered the pale of Āryan civilisation were not disturbed, unless they appeared to be grossly immoral. These customs, however, underwent considerable modifications in imitation of the laws of Āryas. When a new country was conquered, its laws were, as a rule, maintained intact. Vishnu says: "On conquering a country, the conqueror should not destroy its laws." So, Yājnavalkya offers the advice: "Whatever custom, law, or family practice exists in a (conquered) country, should be maintained in the form in which it has come down from the past." On the other hand, in Chānakya’s opinion, righteous laws were established in a conquered country.

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¹ "There is a dispute regarding five practices in the south and in the north. . . . For each (of these customs) the (rule of the) country should be considered the authority. But Gautama declares that that is false. And one should not take heed of either (set of practices) because they are opposed to the tradition of the Siṣṭas." I. 1, 2, 5-8.

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Self-satisfaction was rather a rule of conduct for the individual in cases giving rise to doubts, than a source of law. It was merely the recognition of the right of a man to act according to the dictates of his own conscience when no definite rule of law was available as a guide. The other subsidiary authorities mentioned by Yājnavalkya, such as Mīmāmsā and Nyāya, were in reality guides for the interpretation of legal rules, and not exactly sources of law.

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If direct legislation was impossible in early times, indirect methods were available. Law could not be made, but it could be declared. In the Brihadāraṇyaka, Law is thus defined: “Law is what is called the true. And if a man declares what is true, they say he declares the law; and if he declares the law, they say he declares what is true.”¹ For the declaration of the law in doubtful cases, a duly authorised body of persons was needed. Such a body was a *Parishat* (or parshat) composed of learned Brāhmans. A Parishat was properly constituted when there were present in the assembly ten Brāhmanas, learned in the Vedas, skilled in reasoning, and free from covetousness.² Bodhāyana quotes the following verse: “Four men, who each know one of the four Vedas, a Mīmāmsaka, one who knows the Angas, one who recites the sacred law, and three Brāhmanas belonging to (three different) orders, (constitute) an assembly consisting, at least, of ten members.”¹ Such an ideal assembly was, however, not always easy to get together, and very often three or four Brāhmanas were held sufficient to constitute an assembly, if they were persons who commanded the respect and confidence of the people. Vasishtha says: “What four or (even) three (Brāhmanas) who have completely studied the Vedas proclaim, that must be distinctly recognised as the sacred law, not (the decision) of a thousand fools.”² Sometimes, even the opinions of single individuals of pre-eminent virtue and wisdom had the same weight as the decision of Parishats. In regard to the decision of one individual, however, Bodhāyana gives this wise advice: “Narrow and difficult to find is the path of the sacred law, towards which many gates lead. Hence if there is a doubt, it must not be propounded by one man only, however learned he may be.”³

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¹ Brihadāraṇyaka, I. 4, 14.

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² Gautama, XVIII. 48.

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¹ Bodhāyana, I. 1, 9.

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² Vasishtha, III. 7. He also says: “Many thousands (of Brāhmanas) cannot form a legal assembly (for declaring the sacred law), if they have not fulfilled their sacred duties, are unacquainted with the Vedas, and subsist only by the name of their caste.” III. 5. Vide also Bodhāyana, I. 1, 16. In regard to the number, Bodhāyana says: “There may be five, or there may be three, or there may be one blameless man who decides (questions regarding) the sacred law.” I. 1, 9.

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³ Bodhāyana, I. 1, 10.

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The Parishats of olden days may, in a sense, be called legislative assemblies. Although their main business was to interpret—not to enact—laws, yet in performing this duty they, not unoften, changed the laws so as to bring them into greater harmony with the altered circumstances of changed times. The rules of conduct were not inflexible in ancient times, and the Parishats, while maintaining the infallibility of the Vedas and the Smritis, considerably modified the spirit of the laws. The textbook writers, in compiling the old laws of the country, greatly helped the process of change, and, in later times, the commentators also contributed to the same result.

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As time went on, these indirect modes of changing the laws of the country must have been found very inconvenient. Originally, the King had no power to legislate for the country, but as society became more complex, it must have been found necessary to entrust the King with some power to issue orders which would be recognised by the law-courts. So some of the law-books mention the King’s ordinances as one of the subsidiary sources of law. These edicts, it seems, at first dealt only with particular cases, and did not lay down any general rules. Moreover, they generally related to the work of executive government, and formed something like the *droit administratif* of France.¹ In more modern times, it seems, the King in Council considerably extended the right of issuing ordinances, and the Agni Purāṇa and the Sukranīti mention a Law Member of Council as one of the principal Officers-of-State. The advice of the Sukranīti that notices of newly-passed ordinances should be put up at the cross-roads, and that the people should be informed of them by beat of drum suggests that the issue of legislative ordinances was not very infrequent in the later years of the Hindu Period of Indian history.

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¹ Vide Manu : “Let no (man), therefore, transgress that law which the King decrees with respect to his favourites, nor (his orders) which inflict pain on those in disfavour.” VII. 13.

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