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Public Administration in Ancient India c15: Chapter XII

Public Administration in Ancient India c15

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Chapter XII

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IN early Vedic times justice was administered by the tribe and clan assemblies, and the judicial procedure was very simple.¹ But with the extension of the functions of the State and the growth of the royal powers, the King came gradually to be regarded as the fountain of justice,² and a more or less elaborate system of judicial administration came into existence.

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¹ Prof. Macdonell says: "(In the early Vedic Age) there is no trace of an organised criminal justice vested either in the King or in the people. There still seems to have prevailed the system of wergeld (Vaira), which indicates that criminal justice seems to have remained in the hands of those who were wronged. In the Sūtras, on the other hand, the King's peace is recognised as infringed, a penalty being paid to him, or according to the Brahminical text-books, to the Brahmins. It may, therefore, reasonably be conjectured that the royal power of jurisdiction steadily increased; the references in the Satapatha-Brāhmana to the King as wielding punishment (Daṇḍa) confirm this supposition." Vedic Index, I. pp. 391-392. He adds that there is very little recorded as to civil law or procedure in early Vedic literature.

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² "The King is the fountain-head of justice." Nārada, (Jolly) Legal Procedure, III. 7. But Brihaspati says: "A Brāhmana is the root of the tree of justice; the sovereign prince is its stem and branches; the ministers are its leaves and blossoms; and just government is its fruit." I, 34.

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According to Brihaspati, "judicial assemblies are of four sorts: stationary, not stationary, furnished with the King's signet ring, and directed (by the King). The judges are of as many sorts. A stationary court meets in a town or village; one not stationary is called movable; one furnished with (the King's) signet ring is superintended by the Chief Judge; one directed is held in the King's presence."¹ Nārada says: "Family meetings (kula), corporations (śreṇi), village assemblies (gaṇa), one appointed (by the King), and the King (himself) are invested with the power to decide lawsuits; and of these, each succeeding is superior to the one preceding it in order."²

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¹ Brihaspati, I. 2-3.

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² Legal Procedure (Jolly), 7.

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At the head of the judicial system stood the King's Court. This Court was held at the capital, and was presided over, sometimes by the King himself, but more often by a learned Brāhmaṇa appointed for the purpose, who was known as the Adhyaksha or Sabhāpati. The Adhyaksha perhaps originally selected for each particular occasion in course of time became a permanent Officer-of-State, and held the position of the Chief Justice (Prāḍvivāka) of the realm. The King, together with the Prāḍvivāka and three or four other judges (dhārmikāḥ), formed the highest Court of Justice.³ It was, however, the Chief Justice who in reality presided over the King’s Court, even when the King was present. Nārada says: “Attending to the dictates of the law-book, and adhering to the opinion of his Chief Justice, let him (i.e. the King) try causes in due order, adhibiting great care.”¹ Brihaspati describes the respective duties of the different members of the King’s Court in these words: “The Chief Justice decides causes: the King inflicts punishments: the judges investigate the merits of the case.”² The number of judges varied. According to Manu, three judges, besides the Chief Justice, were enough to form a court, but Chānakya held that the judicial assembly should consist of six persons,—three Officers-of-State, and three other learned persons.³ According to the Sukranīti, the number of judges was to be uneven,—seven, five, or three.

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³ Manu says: "A King desirous of investigating law cases must enter his Court of Justice, preserving a dignified demeanour, together with Brāhmaṇas and experienced councillors. There, either seated or standing, raising his right arm, without ostentation of his dress or ornaments, let him examine the business of suitors." VIII. 1-2. Yājñavalkya says: "The King, putting aside wrath and covetousness,

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¹ Nārada (Jolly), Legal Procedure, 35.

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² Brihaspati, I. 6. “He (the Adhyakṣa) should decide cases with the assistance of three members (of the judicial assembly).” Manu, VIII. 10. The Sukranīti also says that the chief judge should sit with the members of the judicial assembly (sabhyaih saha) to decide cases. II. 96.

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³ Arthaśāstra, Bk. III. ch. 1.

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The jury system, as it now prevails in the European countries, is somewhat different from what prevailed in Ancient India. The three or five members of the judicial assembly acted as jurors as well as judges, but the final decision rested with the Chief Judge.

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should decide cases with the assistance of learned Brāhmanas and in accordance with law.” II. 1. According to the Sukranīti, the King was never to try cases alone and by himself.

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There is, however, one point on which we still require more light. It seems that, besides the members of the assembly, other persons present in court were permitted, on certain occasions, to offer their opinions. Nārada says: "Whether authorised or unauthorised, one acquainted with the law shall give his opinion. He passes a divine sentence who acts up to the dictates of law."¹ The Sukranīti quotes this passage with approval, and adds: "Duly qualified merchants should be made hearers."² The Sukranīti also quotes another passage from the Smritis, namely, "Either the court-house should not be entered, or the right word should be said. A man who does not speak, or speaks unjustly, incurs sin." The point is not clear, and we wonder how the custom, if it existed at all, worked in practice.

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¹ Nārada, Legal Procedure, III. 2.

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² Sukranīti, IV. 5, 27.

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The Chief Justice and the puisne judges were chosen in view of their eminent character and deep learning.³ They were, as a rule, Brāhmanas, but sometimes a few of them were selected from the other castes.

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³ "The King should appoint as judges persons who are well versed in the Vedas and the other branches of learning, who are acquainted with the Sacred Law, and who are truthful and impartial towards friends and foes." Yājnavalkya, II. 2-3. Cf. Brihaspati, I. 29-30, and Sukranīti, IV. 5, 14. Nārada says: "He is called a (Prāḍvivāka or) chief judge who—fully acquainted with the eighteen titles (of law) and with the eight thousand subdivisions thereof, skilled in logic and other branches of science, and thoroughly versed in revealed and traditional lore—investigates the law relative to the case in hand by putting questions (prat) and passing a decision (vivecayati) according to what was heard or understood by him." Quotations from Nārada, I. 1-2. Sacred Books of the East, Vol. XXXIII.

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The King's Court, it seems, had two sorts of jurisdiction, namely, original and appellate. As an original court it tried all cases which arose within the boundaries of the capital. On its appellate side it was the highest Court of Appeal for all cases which were triable in the first instance by the inferior courts.¹ The King's Court also exercised a sort of general supervision over the administration of justice throughout the country.

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¹ Brihaspati, I. 30.

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Next in importance to the King's Court were the principal courts held in the important centres ² and in the larger towns forming the headquarters of districts or sub-districts.³ The constitution of these courts was very similar to that of the King's Court. Royal officers, assisted by persons learned in the law, administered justice in these courts. They were presided over by Adhyakshas appointed by the Central Government. They had original jurisdiction in respect of all cases arising within the boundaries of the towns in which they sat, and also of the more important civil and criminal cases occurring in the neighbouring villages. And it seems that they had a sort of appellate jurisdiction over the decisions of the lower courts within the districts or sub-districts of which the towns formed the headquarters.

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² 'Janapada-sandhi,' Arthasāstra, Bk. II. ch. 36.

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³ 'Saṅgraha,' 'droṇamukha,' 'sthānīya,' Arthasāstra, Bk. II. ch. 36.

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As a rule, the same courts tried both civil and criminal cases. The Smriti works do not draw any distinction between civil and criminal courts. But Chānakya mentions, besides the ordinary law courts (dharmasthīya), a class of “courts for the removal of the thorns of the state” (Kaṇṭaka-śodhana). These latter were what may be called administrative courts. They were presided over by three Officers-of-State,¹ and dealt with offences which affected not so much the rights of individuals as the interests of the community, and interfered with the proper government of the realm.²

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¹ These officials were to be either ministers (amātyāḥ) or directors (prade-ṣṭāraḥ). Arthaśāstra, Bk. IV. ch. 1.

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² Arthaśāstra, Bk. IV., deals with cases which were triable by these administrative courts.

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Besides these courts, each village had its local court, which was composed of the headman and the elders of the village.³ Such courts decided minor criminal cases, such as petty thefts, as well as civil suits of a trifling nature, like disputes relating to the boundaries of lands situate within the village.⁴ Their powers, it seems, were limited to the transfer of the possession of property and the inflicting of small fines. Decisions in these courts were given in accordance with the opinion of the majority of honest persons composing the courts.¹ The idea of a system of local courts for the disposal of cases seems to have been firmly rooted in the minds of the people. The Sukranīti says: "They are the (best) judges of the merits of a case who live in the place where the accused person resides, and where the subject-matter of the dispute has arisen."² Brihaspati goes so far as to recommend that "for persons roaming in the forest a court should be held in the forest, for warriors in the camp, and for merchants in the caravan."³ And it seems that this recommendation was, at least on some occasions, carried into effect for the convenience of suitors. From a Ceylon inscription we learn that itinerant justices from the capital used to visit different parts of the island for the disposal of cases and for the purpose of supervising the system of administration of justice.⁴ It is very probable that a similar system existed in India also.

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³ ‘Grāma-vṛddhāḥ,’ Arthaśāstra, Bk. III. ch. 9.

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⁴ A flood of light is thrown on the system of administration of justice in Ceylon by the Vevalakatiya Slab-inscription of Mahinda IV. (1026-1042 A.D.). From this inscription we learn that within the Dasagāma justice was administered by means of a Communal Court composed of headmen and responsible householders subject to the authority of the King in Council, and that this Court had the power to try all cases and to inflict even the extreme punishment of death. It runs thus: “. . . They (the headmen and the householders) shall sit in session and enquire of the inhabitants of the Dasagam (in regard to these crimes). The proceedings of the enquiry having been so recorded that the same may be produced (thereafter), they shall have the murderer punished with death. Out of the property taken by the thieves by violence, they shall have such things as have been identified restored to their respective owners, and have (the thieves) hanged . . .” Epigraphia Zeylanica, Vol. I. No. 21.

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¹ "Yato bahavaḥ śuchayo 'numatā vā tato niyaccheyuḥ." Arthaśāstra, Bk. III. ch. 9.

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² IV. 5, 24.

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³ Brihaspati, I. 25.

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⁴ The passage runs thus: "Should the inhabitants of these Dasagam villages have transgressed any of the rules stated (above) the royal officials who go annually (on circuit) to administer justice (in the country) shall . . ." Epigraphia Zeylanica, Vol. I. No. 21.

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The work of the regular courts was greatly lightened by arbitrators. All cases, except those concerning violent crimes, could be decided by arbitration by guilds of artisans, assemblies of co-habitants, meetings of religious sects, and by other bodies duly authorised by the King.¹ Nārada is a great believer in the system of arbitration, and he says: "(In disputes) among merchants, artisans, or the like persons, and in (disputes concerning) persons subsisting by agriculture or as dyers, it is impossible for outsiders to pass a sentence; and the passing of the sentence must, therefore, be entrusted to persons acquainted with such matters (in a cause of this sort)." This system had the great merit of giving substantial justice to the disputants and, at the same time, preventing ruinous litigation.

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¹ Brihaspati, I. 28. Vide also Sukranīti, Ch. IV. sec. 5.

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The relations subsisting between the different kinds of courts are thus described by Brihaspati: "When a cause has not been (duly) investigated by (meetings of) kindred, it should be decided after due deliberation by companies (of artisans); when it has not been duly examined by companies (of artisans), it should be decided by assemblies (of co-habitants); and when it has not been (sufficiently) made out by such assemblies (it should be tried) by appointed (judges)."² And again, "Judges are superior in authority to (meetings of) kindred and the rest; the chief judge is placed above them; and the King is superior to all, because he passes just sentences.” Nārada¹ and Yājñavalkya² also describe these relations in terms almost identical with those used by Bṛhaspati. A verse quoted by Asahāya in his commentary of Nārada runs thus: “A case tried in the village (assembly) goes (on appeal) to the city (court); and one tried in the city (court) goes (on appeal) to the King (i.e. the King’s Court); but there is no appeal from the decision of the King, whether the decision be right or wrong.”³ These and other similar passages leave no doubt in our minds that there was a regular mode of appeal from the decisions of the inferior courts to the superior courts. How far this right of appeal was recognised in practice, and to what extent the people actually availed themselves of the right are questions which our present knowledge of the history of Ancient India does not enable us to answer with any degree of satisfaction.

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² I. 30. Brihaspati adds: "(Meetings of) kindred, companies (of artisans), assemblies (of co-habitants), and chief judges are declared to be resorts for the passing of a sentence, to whom he whose cause has been previously tried may appeal in succession." I. 29.

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¹ “Kulāni śreṇayaś caiva gaṇāś cādhikṛto nṛpaḥ.” Pratiṣṭhā vyavahārāṇām pūrvebhyas tūttarottaram.” Nārada (Jolly’s edn.), I. 7.

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² Yājñavalkya, II. 30.

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³ Jolly, Nārada, footnote to I. 11 : “Grāme dṛṣṭaḥ pure yāti pure dṛṣṭas tu rājani Rājñā dṛṣṭaḥ kudṛṣṭo vā nāsti paunarbhavo vidhiḥ.”

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So much about the Courts of Justice. We now pass on to a consideration of judicial procedure as it prevailed in Ancient India. Justice was administered in accordance with legal rules which fell under one or other of the following four heads: (a) Sacred Law (Dharma), (b) Secular Law (Vyavahāra), (c) Custom (Charitra), and (d) Royal Commands (Rāja-śāsana).¹ “Sacred Law,” says Chānakya, “is the embodiment of truth; Secular Law depends upon evidence; Custom is decided by the opinion of people; and Royal Edicts constitute administrative law.”² Some of the Smriti works adopt slightly different orders of classification, and they are often unwilling to admit the validity of Royal Edicts in the administration of justice. Opinion is also divided as to the relative importance of the different sets of legal rules. Chānakya and Nārada agree in holding that “each following one is superior to the one previously named” in the above classification; but the former adds, “When there is disagreement between Sacred Law and Secular Law, or between Sacred Law and Custom, the matter should be decided according to Sacred Law. When, however, there is disagreement between Sacred Law and Morality, Morality shall prevail, for it is likely that the original text (governing such a case) has been lost.”¹ According to Nārada, “When it is impossible to act up to the precepts of Sacred Law, it becomes necessary to adopt a method founded on reasoning, because Custom decides everything and overrules the Sacred Law. Divine Law has a subtile nature, and is occult and difficult to understand. Therefore (the King or the judges) must try causes according ‘to the visible path.’”² Thus, in practice, customs were the most important of the four divisions of law, and Manu³ and almost all the other law-givers lay it down as the essential principle in the administration of justice that disputes should be decided according to the customs of countries and districts (janapada), of castes (jāti), of guilds (śreṇi), and of families (kula).

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¹ Arthaśāstra, Bk. III. ch. 1. The Smriti works adopt slightly different orders of classification.

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² Arthaśāstra, Bk. III. ch. 1. A similar passage occurs in Nārada (Legal Procedure, 10-11); but instead of ‘caritram saṃgrahe puṃsām,’ we find there the words ‘caritram pustakarane.’ Prof. Jolly’s translation of this passage does not appear to us to be correct. ‘Vyavahāra’ is defined in the Sukranīti as that “which, by discriminating between good and evil, enables the people to remain on the path of virtue, and promotes their welfare.” IV. 5, 4.

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¹ Arthaśāstra, Bk. III. ch. 1. Yājñavalkya, comparing Dharmaśāstra and Arthaśāstra, remarks that the former is the more authoritative of the two.

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² Nārada (Jolly), Legal Procedure, 41.

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³ Manu, VIII. 41.

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The regular courts met once or twice every day, usually in the mornings and evenings. The court-house was looked upon as a sacred place, and it was open to all. Trials were always held in public. The Sukranīti says: “Neither the King nor the members of the judicial assembly should ever try cases in private.”⁴ Cases were taken up for disposal either in the order of their respective applications, or of their urgency, or of the nature of the injury suffered, or of the relative importance of the castes⁵ of suitors. The royal officers were strictly forbidden to take any part either in the commencement or in the subsequent conduct of a suit. Manu is very emphatic on this point. "Neither the King," says he, "nor any servant of his shall cause a lawsuit to be begun, or hush up one that has been brought (before the court) by (some) other (person)."¹ It is not very clear whether this rule was confined only to civil suits, or applied to criminal cases as well. But it is probable that, in the graver criminal offences, the State took upon itself the duty of conducting the prosecution.²

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⁴ Sukranīti, IV. 4, 6.

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⁵ Sukranīti, IV. 5, 161.

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¹ Manu, VIII. 43. Cf. Nārada (Jolly), Judicial Procedure, 3.

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² In the Trial Scene in the Sūdraka's Mrichchakatikā, however, we find that in a murder case the court commences its proceedings on the application of a private person (arthī). It is difficult to say whether this was or was not the usual practice.

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Lawsuits, according to Nārada, have three efficient causes, for they proceed from one or other of three motives, namely, carnal desire, wrath, and greed.³ "When mortals," says Nārada, "were bent on doing their duty, and were habitually veracious, there existed neither lawsuits, nor hatred, nor selfishness. The practice of duty having died out among mankind, lawsuits have been introduced."⁴ The topics which give rise to lawsuits are grouped by the law-givers under eighteen titles, namely, (1) recovery of debts, (2) deposit and pledge, (3) sale without ownership, (4) concerns among partners, (5) resumption of gifts, (6) non-payment of wages, (7) non-performance of agreements, (8) rescission of sale and purchase, (9) disputes between owners of cattle and herdsmen, (10) disputes regarding boundaries, (11) assault, (12) defamation, (13) theft, (14) robbery and violence, (15) adultery, (16) duties of man and wife, (17) inheritance and partition, and (18) gambling and betting.¹ It is evident that the list includes both civil and criminal cases. Although it was not found necessary to draw a line of separation between the two classes, the distinction, it appears, was fully understood. This becomes clear from the following passage which occurs in Brihaspati Smriti: “Lawsuits are of two kinds, according as they originate in (demands regarding) wealth or in injuries. Lawsuits originating in wealth are (divided again) into fourteen sorts, those originating in injuries into four sorts.”² Most of these titles had sub-divisions, which, taken together, amounted to one hundred and thirty-two.³

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³ Nārada (Jolly), I. 26.

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⁴ Nārada (Jolly's edn.), I. 1-2. This is an illustration of the fact that men in all ages have looked upon the remote past as the Golden Age of the World.

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¹ Manu, VIII. 4-7. The titles given in some of the other law books are slightly different.

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² Brihaspati, II. 5.

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³ Nārada gives the following list: “‘Recovery of debt’ has twenty-five divisions; ‘deposits’ has six; ‘partnership’ has three; ‘resumption of gifts’ has four; ‘breach of service’ consists of nine divisions; ‘wages’ has four divisions; there are two divisions of ‘sales effected by another than the rightful owner’; ‘non-delivery of a sold chattel’ has a single division only; ‘rescission of purchase’ has four divisions; ‘transgression of compact’ is one-fold; ‘boundary disputes’ is twelve-fold; there are twenty divisions in ‘mutual duties of husband and wife’; ‘the law of inheritance’ consists of nineteen divisions; ‘heinous offences’ of twelve; of both ‘abuse’ and ‘assault’ there are three divisions; ‘gambling with dice and betting on animals’ has a single division; ‘miscellaneous’ has six divisions.” I. 20-25.

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The judicial proceedings in a case consisted of four stages, namely, (1) the statement of the plaintiff (pūrva-paksha), (2) the reply of the defendant (uttara-paksha), (3) the actual trial, consisting of the evidence to establish the case and the arguments on both sides (kriyā), and (4) the decision (nirṇaya).¹

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¹ Brihaspati, III. 1-2. Vide also Sukranīti, IV. 5, 153. A good description of the actual proceedings in a criminal case is to be found in Sūdraka’s Mrichchakatikā. Probably, this portion of the drama, like the rest, was based upon a much earlier work entitled ‘Chārudatta’ by Bhāsa; but, unfortunately, the whole of this latter book has not yet been discovered.

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Proceedings at law, according to Nārada, were of two kinds: “attended by a wager, or not attended by a wager. A lawsuit attended by a wager is where (either of the two parties) stakes in writing a certain sum which has to be paid besides the sum in dispute (in case of defeat).”² This system of wager, however, is not to be found in other works, and probably in Nārada’s time only the remembrance existed of a custom which had died out long ago. It is interesting to note that the system of wagers in India was analogous to a similar custom in Rome in the earlier stages of the development of Roman legal procedure.

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² Nārada (Jolly), Legal Procedure, 4.

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All civil actions as well as criminal cases were commenced by written petitions or verbal complaints made before the Court by the aggrieved party. The date and the place of occurrence, the nature of the wrong done or of the claim made, and the names of the plaintiff (arthī) and the defendant (pratyarthī) were entered in the books of the court.¹ An important point for the Court to determine at this stage was the capacity of the parties. If one of the parties was incapable of suing or defending, the suit could not be proceeded with.

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¹ Arthaśāstra, Bk. IV. ch. 1. Yājñavalkya says that the representation, as made by the plaintiff, is to be put in writing in the presence of the defendant—the year, month, fortnight, and day, together with the names, caste, etc., being given.

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The first important step in the trial was the statement of the case by the plaintiff.² He had to cause the plaint to be put in writing, either by the officer of the court or by his legal adviser. A great deal of care, it seems, had to be taken in the preparation of the plaint, for Nārada mentions the following as the defects of a plaint, namely, "(1) if it relates to a different subject, (2) if it is unmeaning, (3) if the amount claimed has not been properly stated, (4) if it is wanting in propriety, (5) if the writing is deficient, or (6) redundant, (7) if it has been damaged."³ A small verbal error, however, did not vitiate the plaint.⁴ On the other hand, a plaint, though otherwise faultless, was held as incorrect if it was contrary to established law and usage.⁵

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² "The accusation," says Nārada, "is called the plaint; the answer is called the declaration of the defendant." Legal Procedure, 28. There were, according to Nārada, two modes of plaint, "because a plaint may be either founded on suspicion or a fact." Ibid. 27.

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³ Nārada, Legal Procedure, II. 8.

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⁴ Ibid. II. 25.

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⁵ Ibid. II. 15.

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The next step was the issue of summons for the attendance of the defendant. It was the duty of the defendant to attend the court on receipt of the summons; and if he attempted to abscond, the plaintiff might arrest him, to secure his presence in court. Such arrest might be one or other of four kinds, namely, local arrest, temporary arrest, inhibition from travelling, and arrest relating to his work.¹

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¹ Nārada, Legal Procedure, 47. The following classes of persons, according to Nārada, might not be arrested, namely, “one about to marry; one tormented by illness; one about to offer a sacrifice; one afflicted by a calamity; one accused by another; one employed in the King’s service; cowherds engaged in tending cattle; cultivators in the act of cultivation; artisans while engaged in their own occupations; a minor; a messenger; one about to give alms; one fulfilling a vow; one harassed by difficulties.”

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The defendant, after having become acquainted with the tenor of the plaint, had to give a written reply.² A reply might be one or other of four sorts, namely, a denial (mithyā), a confession (sampratipatti), a special plea (pratyavaskandana), a plea of former judgment (prāṇnyāya).³ Before the answer to the plaint was tendered, the plaintiff was at liberty to amend his plaint in any way he liked,⁴ but after the delivery of the reply, no amendment was permitted. The plaintiff was entitled to submit a rejoinder to the defendant’s reply.

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² The reply, according to Nārada, was to correspond with the tenor of the plaint. Legal Procedure, II. 2.

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³ Nārada (Jolly), II. 4.

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⁴ Ibid. II. 7.

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If the case was a simple one, it was decided then and there. But if it was one which involved any important questions of fact or of law, and was not a matter of any urgency, the parties were given time to prepare their respective sides of the case.¹ Where the defendant denied the charge or claim, the plaintiff had to prove his accusation or demand. Under certain circumstances, however, the burden of proof might be shifted from the plaintiff to the defendant.² If the plaintiff failed to produce witnesses, or did not appear within three fortnights, he was non-suited. And if it was proved that the plaintiff had no just cause for bringing the suit, he was ordered to pay a fine. Counter-charges, were not, as a rule, permitted. “One accused,” says Nārada, “of an offence must not lodge a plaint himself, unless he have refuted the charge raised by the other party.”³ But in certain classes of civil actions, such as disputes between members of a trade guild or between merchants, or in quarrels leading to duels, counter-suits were allowed.⁴ When two persons brought suits against each other, he was admitted as plaintiff whose grievance was the greater, or whose affair was the more important of the two, and not the person who was the first to go to law.¹ A person who had already been accused by another person could not be accused by a different party of the same offence, “for it is wrong to strike one again who has been struck (by another).”²

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¹ Gautama says: “If (the defendant) is unable to answer (the plaint) at once (the judge) may wait for a year. But (in an action) covering kine, draught-oxen, women, or the procreation (of offspring) the defendant (shall answer) immediately; likewise in a case that will suffer by delay.” XIII. 28-30. Nārada also advises the King to give time to the defendant except in urgent affairs, heinous offences, etc. I. 44-45.

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² For instance, “when the defendant has evaded the plaint by means of a special plea, it becomes incumbent on him to prove his assertion, and he is placed in the position of a claimant.” Nārada (Judicial Procedure), II. 31.

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³ Nārada, Legal Procedure, 55.

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⁴ Arthaśāstra, Bk. III. ch. 1.

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¹ Quotations from Nārada (Jolly), I. 8.

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² Nārada, I. 55.

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Facts in a case were proved by evidence,³ which was either oral, or documentary, or real.⁴ In cases relating to property, possession was regarded as some evidence of ownership.⁵ Although all the forms of evidence were equally admissible, the oral evidence of witnesses was the commonest mode of proving a fact. Direct evidence was generally regarded as superior to circumstantial evidence, but in certain cases, e.g. theft and housebreaking, the latter was often the only kind of evidence available, and was held sufficient.¹ It seems that hearsay evidence was not always excluded.²

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³ In six cases, witnesses were held unnecessary, and indications of the crime committed were regarded as sufficient. “It should be known,” says Nārada, “that one carrying a firebrand in his hand is an incendiary; that one taken with a weapon in his hand is a murderer; and that where a man and the wife of another man seize one another by the hair, the man must be an adulterer. One who goes about with a hatchet in his hand and makes his approach may be recognised as a destroyer of bridges (and embankments); one carrying an axe is a destroyer of trees. One whose looks are suspicious is likely to have committed an assault. In all these cases, witnesses may be dispensed with; in the case of assault, careful investigation is required.” I. 175. The indications may be regarded as constituting what is called ‘real’ and ‘circumstantial’ evidence.

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⁴ “Evidence of guilt against a suspected person shall consist in the instruments used, his advisers and abettors, the article stolen, and any intermediaries.” Arthaśāstra, Bk. IV. ch. 8. Vasistha says: “It is declared in the Smriti that there are three kinds of proof which give title to (property, viz.), documents, witnesses, and possession; (thereby) an owner may recover property which formerly belonged to him (but was lost).” He adds: In a dispute about a house or a field, reliance (may be placed on the depositions) of neighbours. If the statements of the neighbours disagree, documents (are) proof. If conflicting documents are produced, reliance (may be placed) on (the statements of) aged (inhabitants) of the village or town, and on (those of) guilds and corporations (of artisans and trades).

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⁵ Cf. the English legal proverb, “Possession is nine points of the law.”

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¹ Arthaśāstra, Bk. IV. ch. 8.

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² Manu says: "Evidence in accordance with what has actually been seen or heard is admissible." VIII. 74.

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The eligibility of witnesses was an important question. Householders, men with male issue, and natives of the country belonging to any of the four castes were regarded as eligible witnesses.³ Persons who had an interest in the suit, familiar friends and companions, enemies of the parties, persons formerly convicted of perjury, persons suffering from some severe illness, and those tainted by mortal sin, were ineligible as witnesses.⁴ And no person belonging to any of the following classes could be called as a witness, except under special circumstances: the King, mechanics, and actors, a student of the Veda, an ascetic, one wholly dependent, a person of ill repute, a dasyu, a person who followed forbidden occupations, an aged man, an infant, a man of the lowest castes, one extremely grieved or intoxicated, one oppressed by hunger, thirst, or fatigue, a mad man, one tormented by desire, a wrathful man, and a thief.¹ The reasons why such persons were excluded from the witness box are thus indicated by Nārada : ² “A child would speak falsely from ignorance, a woman from want of veracity, an impostor from habitual depravity, a relative from affection, and an enemy from desire of revenge.” The ground on which some of the other classes were excluded appears to have been the desire on the part of the State to prevent, as far as possible, any interference with the ordinary avocations of the people. On failure of competent witnesses, however, the evidence of an infant, an aged person, a woman, a student, a relative, or a servant, might be offered.³

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³ Manu, VIII. 62. Cf. Nārada (I. 177-190), who gives a longer list.

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⁴ According to Vishnu, the proper witnesses are those born of a high family, possessing good qualifications or wealth, devoted to religious practices and sacrifices, those who have sons, who are versed in the law, who are truthful, who are devoted to study. Ch. 8 (Jolly's Sanskrit text).

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¹ Manu, VIII. 65-68.

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² I. 191.

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³ Manu, 69-70. “But,” adds Manu, “the judge should consider the evidence of infants, aged and diseased persons as untrustworthy, likewise that of disordered minds.” VIII. 71. The competence of witnesses, in the opinion of Manu, should not be strictly examined in certain classes of criminal cases, e.g. violence, theft, adultery, defamation, and assault. VIII. 72.

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Uncorroborated evidence of a single witness was regarded as insufficient for the decision of a case, unless the witness happened to be a person possessed of exceptional qualifications and was agreeable to both the parties.⁴

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⁴ Nārada, I. 192 ; Manu, VIII. 77 ; Yājnavalkya, II. 72 ; Vishnu, VIII. 9.

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Before the deposition of a witness was taken, it was the duty of the judge to impress on the witness the necessity of telling the truth, and the consequences, legal and moral, of telling a falsehood.¹ Witnesses were also charged on oath to speak the truth. According to Gautama, in the case of persons other than Brāhmanas the oath was to be taken in the presence of the gods, of the King, or of the Brāhmanas.² Perjury was regarded as a dire sin as well as a serious offence, and a witness who perjured himself was liable to be fined from one hundred to one thousand paṇas, the exact amount of the fine depending upon the motive which induced him to give false evidence.³

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¹ Manu says that the judge should exhort the witnesses as follows: "A witness who speaks the truth in his evidence gains (after death) the most excellent regions (of bliss) and here (below) unsurpassable fame." "Such testimony is revered by Brahman himself." And so on. Manu, VIII. 81-86. According to Gautama, Vasistha, and Bodhāyana also, by giving false evidence a person incurs sin in varying degrees.

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² Gautama, XIII. 12-13.

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³ Manu, VIII. 120-121. Megasthenes says: "A person convicted of bearing false witness suffers mutilation of his extremities." Fragment XXVII.

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Documentary evidence (lekhya) was frequently resorted to in Ancient India, specially in civil actions. Vishnu mentions three kinds of documents, namely, (1) attested by the King's officers, (2) attested by private witnesses, and (3) unattested.⁴ According to Nārada, a document, to be valid, "should be signed by witnesses, the (natural) order of ideas and syllables should not be interrupted, local customs and general rules should be observed in it, and it should be complete in every respect."⁵

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⁴ Vishnu (Jolly's Sanskrit text), Ch. V. Brihaspati says: "Writings are declared to be tenfold." V. 18.

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⁵ Quotations from Nārada, IV. 1.

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For the purpose of drawing conclusions from the evidence offered in court, it was the duty of the judge to weigh such evidence, and not merely to count the number of witnesses and documents on each side.¹ Nārada says: "There are some who give false evidence from covetousness, there are other villainous wretches who resort to forging documentary evidence. Therefore, both sorts of evidence must be tested by the King with great care: documents according to the rules regarding writings, witnesses according to the law of witnesses."² The means of arriving at the truth were regarded as four-fold, namely, (1) visible indications (pratyksha), reasoning (yukti), inference (anumāna), and analogy (upamāna).³ If the witnesses disagreed with one another as to time, age, matter, quantity, shape, and species, such testimony was to be held as worthless. The judges were advised to note the demeanour of a witness in court, and to draw an inference as to his veracity therefrom.⁴ But Nārada, very wisely, cautions judges against accepting indications too readily. “Liars,” says he, “may have the appearance of veracious men, and veracious men may resemble liars. There are many different characters. Therefore, it is necessary to examine (everything).” Proper safeguards were provided against the miscarriage of justice through belief in false evidence. And whenever it was found that the decision in a case was based upon false or insufficient evidence, the judgment was reversed, and all the proceedings in the case were declared null and void.¹

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¹ Manu, however, says: "On a conflict of witnesses the King shall accept (as true) the (evidence of the) majority; if (the conflicting parties are) equal in number, (that of) those distinguished by good qualities; on a difference between (equally) distinguished (witnesses, that of) the best among the twice-born." VIII. 73.

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² Nārada, Legal Procedure, 70.

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³ Sukranīti, II. 93.

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⁴ "If a man being questioned does not uphold a statement duly made by himself (at a former stage of the trial); or if he ends by admitting what had been previously negatived by himself; or if he is unable to produce any witnesses after having declared that they are in existence, and having been asked to produce them; by all such signs as these, persons devoid of virtue may be known." Nārada, Legal Procedure, 61. Abul Fazl, describing the Hindu system of administration of justice, says: "The Judge will derive collateral proof by the physiognomy and prevarication of the party." Ayeen-i-Akbery (Gladwin), p. 496.

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¹ Manu, VIII. 117. ² ‘Divya’ is a term not found in early Vedic literature. ³ Manu, VIII. 113. ⁴ Manu, VIII.

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The other modes of arriving at the truth, besides evidence, were the oath and the ordeal (divya).² These methods, it seems, were resorted to only when evidence failed to establish the case one way or the other. As to the oath, Manu says, “let the judge cause a Brāhmana to swear by his veracity, a Kshatriya by his chariot or the animal he rides on and by his weapons, a Vaisya by his kine, grain, and gold, and a Sūdra by (imprecating on his own head the guilt) of all grievous offences.”³ The ordeal was a divine test. It was used in criminal cases, and was of various kinds, such as (i) by the balance, (ii) by fire, (iii) by water, and (iv) by poison.⁴ If the accused person was unhurt, or did not meet with any speedy misfortune, he was held to be innocent.¹ Resort was had to the expedient of the ordeal when both the parties failed to bring witnesses, or to produce documentary evidence, and the merit of the case was so doubtful that the judges felt disinclined to take upon themselves the responsibility to give a decision.² These methods were thus used only on rare occasions, and they became obsolete in course of time, leaving evidence as practically the sole method by which the court arrived at the right decision as to the guilt or innocence of an accused person.

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¹¹⁴ Vishnu and Nārada give detailed descriptions of the different kinds of ordeal. Hiuen Tsiang, who was perhaps an eye-witness of ordeals, thus describes them : “When the ordeal is by water, then the

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¹ Manu, VIII. 115.

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² Vide Abul Fazl's Ayeen-i-Akbery, p. 495.

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Sometimes judicial investigation supplemented the information obtained by evidence offered in court. But great care was taken against an abuse of this method. Hiuen Tsiang emphatically states that " in

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accused is placed in a sack connected with a stone vessel and thrown into deep water. They then judge of his innocence or guilt in this way—if the man sinks, and the stone floats, he is guilty; but if the man floats and the stone sinks, then he is pronounced innocent. Secondly, by fire: They heat a plate of iron, and make the accused sit on it, and again place his feet on it, and apply it to the palms of his hands; moreover, he is made to pass his tongue over it; if no scars result, he is innocent; if there are scars, guilt is proved. In case of weak or timid persons who cannot endure such ordeal, they take a flower-bud and cast it towards the fire; if it opens, he is innocent; if the flower is burnt, he is guilty. Ordeal by weight is this: A man and a stone are placed in a balance evenly; then they judge according to lightness or weight. If the accused is innocent, then the man weighs down the stone, which rises in the balance; if he is guilty, the man rises, and the stone falls. Ordeal by poison is this: They take a ram, and make an incision in the thigh (of the animal); if the man is guilty, then the poison takes effect and the creature dies; if he is innocent, then the poison has no effect, and he survives. By these four modes of trial, the way of crime is stopped." Beal, Buddhist Records, Bk. II.

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the investigation of criminal cases there is no use of rod or staff to obtain proofs.” ¹

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¹ Buddhist Records (Beal), Bk. II.

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The next stage of the trial was the argument on both sides. When the parties themselves were persons unacquainted with the law, they were sometimes represented for the purpose of arguing the case by their relatives, or friends, or professional lawyers (pratinidhi).² Such representation, it seems, was usual in the civil suits and in the less serious criminal cases, but no representation was permitted in the graver criminal offences, such as murder, adultery, abduction, forgery, sedition, robbery, and theft.³

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² Sukranīti, IV. 5, 110. According to Sukra the lawyer’s fee was to be one-sixteenth of the value of the suit. IV. 5, 114. Nārada says: “He deserves punishment who speaks in behalf of another, without being either the brother, the father, the son, or the appointed agent.” Nārada (Judicial Procedure), II. 23.

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³ Sukranīti, IV. 5, 120.

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Judgment was delivered at the end of the hearing of a case. In applying the law to a particular case, the judges were expected to take into consideration all the circumstances. “No sentence,” says Brihaspati, “should be passed merely in accordance with the letter of the law. If a decision is arrived at without considering the circumstances of the case, violation of justice will be the result.”⁴ The judgment was embodied in a document, a copy of which was furnished to the victorious party.⁵

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⁴ Brihaspati, II. 12.

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⁵ Nārada says: “The victorious party shall receive a document recording his victory, and couched in appropriate language.” Legal Procedure, II. 43.

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The remedies given by the courts depended upon the character and circumstances of each case. In civil actions, the usual remedies were restoration of property and fines. The courts had also power to declare agreements as invalid. Thus, for instance, contracts entered into under provocation, compulsion, or intoxication, or by dependents, infants, aged persons, and lunatics, were often held as void.¹ In an action for the recovery of debts the court had the power to modify the whole transaction, and to grant only a reasonable rate of interest. In criminal cases, the punishments were :² (i) fine, (ii) imprisonment, (iii) whipping, (iv) physical torture, (v) banishment, (vi) condemnation to work in the mines, and (vii) death.

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¹ Arthaśāstra, Bk. III. ch. 1.

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² Nārada says : " Punishment is pronounced to be two-fold : bodily punishment and fines. Bodily punishment is declared to be of ten sorts, fines are also of more than one kind. Fines begin with a kākaṇi, and the highest amount is one's entire property. Bodily punishment begins with confinement, and ends with capital punishment." Jolly, Appendices, 53-54.

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The punishment awarded in criminal cases corresponded to the nature of the offence.³ The extreme penalty of death was rarely inflicted,⁴ and any other kind of corporal punishment was uncommon. " The

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³ Brihaspati, VI. 2.

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⁴ Sung Yun, speaking of the Kingdom of Udyāna (Kasmir), says : " Supposing a man has committed murder, they do not suffer him to be killed, but banish him to the desert mountains." Buddhist Records, p. 188.

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Brihaspati says : " Whatever has been transacted in a suit, the plaint, answer, and so forth, as well as the gist of the trial, should be noted completely in the document recording the success (of the claimant or defendant)."

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King,” says Fa Hian, “in the administration of justice inflicts no corporal punishment, but each culprit is fined in money according to the gravity of his offence, and even in cases where the culprit has been guilty of repeated attempts to excite rebellion, they restrict themselves to the cutting off of his right hand.”¹ This statement is confirmed by Hiuen Tsiang and Sung Yun. Hiuen Tsiang says: “There is no infliction of corporal punishment; they are simply left to live or die, and are not counted among men.”² Megasthenes mentions cropping of the hair as a punishment. “If one is guilty,” says he, “of a heinous offence, the King orders his hair to be cropped, this being a punishment in the last degree infamous.”³

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¹ Fa Hian (Beal), Ch. XVI.

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² Buddhist Records (Beal), Bk. II.

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³ Fragment XXVII. D.

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Sureties (pratibhū)⁴ for good behaviour were also sometimes taken from persons found guilty of criminal offences. Abettors of a crime were punished in a manner similar to the punishment provided for the principal offender.

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⁴ Sukranīti, IV. 5, 125.

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The extra-judicial remedy of self-help was also recognised by the courts within reasonable limits. Manu, for instance, says: “By moral suasion, by suit of law, by artful management, or by the customary proceeding, a creditor may recover property lent; and fifthly, by force. A creditor who himself recovers his property from his debtor must not be blamed by the King for retaking what is his own."¹

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¹ Manu, VIII. 49-50.

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If any person was dissatisfied with the judgment, and thought that the case had been decided in a way contrary to justice, he might have it re-tried on payment of a fine. Nārada says: "When a lawsuit has been judged without any previous examination of witnesses (or other evidence), or when it has been decided in an improper manner, or when it has been judged by unauthorised persons, the trial has to be renewed."² An appeal also lay from the decision of an inferior court to a higher tribunal, where the whole case was re-tried.³

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² Quotations from Nārada (Jolly), I. 14.

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³ Brihaspati, I. 29-30.

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We now pass on to a consideration of some of the important features of the administration of justice in Ancient India. The first characteristic that strikes the enquirer is the responsibility of the judges and their independence. The judges had to perform their duties in accordance with the law, and it was their duty to deal out equal justice to all.⁴ If they transgressed the laws, or acted improperly in the discharge of their duties, they not only incurred sin,⁵ but were liable to be punished. Chānakya prescribes punishment for any unrighteous behaviour on the part of the judges. "If a judge," says he, "chides or threatens or sends out or unjustly silences a litigant, he shall be liable to the first amercement. If he defames any litigant, his punishment shall be double the amount. If he does not ask any questions which ought to be asked, or asks questions which ought not to be asked, or having asked a question, leaves it out, or tutors a witness, or reminds him what he said before, he shall be liable to the second amercement. If he does not enquire into relevant matters or enquires into irrelevant matters, or unnecessarily delays the trial, or maliciously postpones business, or makes one of the parties leave the court disgusted and tired, or leaves out statements which may lead to a right decision, or lends assistance to the witnesses, or takes up a case already decided, he shall be liable to the first amercement. On a repetition of the offence, his punishment shall be double, and he shall be removed from office." ¹ So also, Yājnavalkya says: "If the members of the judicial assembly give any decisions contrary to law and custom, through affection, temptation, or fear, each of them would be liable to double the punishment provided for the case.”¹ But if the responsibility of the judges was great, so was their independence. The law was their only master and guide, and they had power to deal equally with the high and the low. The administration of justice was kept separate from the executive functions of the State, and no interference with judicial business by the executive was permitted.

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⁴ Manu, VIII. 13-14.

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⁵ Manu says: "When any injustice is done, one-fourth of the sin attaches to the wrong-doer, one-fourth to the witness, one-fourth to the judges, and the remaining fourth to the King." VIII. 18. Abul Fazl, speaking of the administration of justice in Hindu India, says, "He (the judge) must consider it a religious obligation to discharge the duties of his office with impartiality and justice." Ayeen-i-Akbery (Gladwin), p. 495.

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¹ Arthaśāstra, Bk. IV. ch. 9. Kautilya says further: "If the judge, or the director, unjustly fines anybody, he shall be fined twice the amount. If he condemns any person unjustly to bodily punishment, he shall himself suffer the same punishment, or be fined twice the amount of the ransom payable."

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¹ II. 4. Some of the other Smriti works also prescribe punishments for judges who transgress the law.

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Another feature of the judicial system was that every person resident in the country, whatever his position might be, and whether he was a native or a foreigner,² received the protection of the courts. Such protection was, of course, specially appreciated by the weaker members of society. If a Dāsa, for instance, was ill-treated, he was permitted by the courts to leave his master, and the courts inflicted a punishment on the master if he failed to liberate his Dāsa on receipt of a ransom.³ So also, servants were protected from ill-treatment at the hands of their masters. A servant could, with the help of the courts, enforce the payment of his wages, and any agreement made between master and servant to the prejudice of the latter was liable to be set aside by the courts.⁴

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