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Hindu Administrative Institutions c10: Chapter V. The Department of Justice

Hindu Administrative Institutions c10

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Contents

Chapter V. The Department of Justice

Sec. i. In the Vedic Period

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THE conception of the term ‘law’ in ancient India was that of a body of precepts accepted as suitable for the guidance of human action. But law as understood to-day is a general rule of action enforced by a sovereign political authority. The one chief source of law to-day is legislation which consists of definite acts passed by the Legislature of the state in the shape of representative assemblies, for example, the British Parliament. In ancient India there were, no doubt, representative organizations but these were not legislatures in the sense in which we understand the term. The one important source of law for the Hindus is the Veda, all the *Dharmaśāstras* or codes of law having their basis in the Vedas. The law-givers in the classical period of Indian History have taken the floating tradition, customs and usages of each tribe or people, and have established them as laws based on the Vedas and hence they are deemed sacred and inviolable.

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This reminds us of the ancient Teutons to whom law was purely a matter of custom ‘the law of diverse people’ as opposed to the Roman law of a unified state, and the legislature was independent of the executive. Especially this was so after the codification of the law by the *smṛti-kartas* such as Manu, Nārada, and Gautama. Even in Vedic days the use of terms such as *jīvagṛh*¹ and *ugra*² shows that it was the function of the executive to administer the laws of the land.

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¹ *R.V.* x. 97. 11. *Jīvagṛh* ‘seizing alive’ is according to Roth (St Petersberg Dictionary) the term for a police official. But although this sense is rendered possible by the mention of the *madhyamasi* perhaps ‘arbitrator’ in the same passage, it is neither necessary nor probable. (*V.I.*, vol. i, p. 288.)

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² vii. 38. 6. *Ugra* (p. 83, vol. i) in one passage of the *Bṛhadāraṇyaka Upaniṣad* (vi. 3, 37-38) seems to have a technical force denoting a ‘man in authority’; or according to Max-Muller’s rendering, *Policeman*. Roth compares a passage in the *Rig-Veda*, vii. 38-6 where, however, the word has simply the general sense of ‘mighty man’. Bothlingk in his rendering of the *Upaniṣad* treats the word as merely adjectival.

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Law then gained supreme authority in the land and the ancient Hindu monarch felt obliged to accept it without any reservation. He was not above the law but under it. If he swerved from the accepted law of the land he was liable to punishment like any other citizen of the state.³ The *Bṛhadāraṇyaka Upaniṣad* says⁴ the law is ‘the king of kings’. This dominating position of the law of the Hindus is due to the fact that the ancients conceived that law was not a man-made thing but a divinely declared one. The codes of law or the *Dharmaśāstras* were not only legal but also religious. In matters, secular and sacred, the law depended alike for sanction upon religion and the acceptance of the *śiṣṭas* in the state. For the laws were intended for man to realize the four *puruṣārthas* of each individual—*dharma, artha, kāma* and *mokṣa*. The sources of law increased in number when the various early tribes gradually evolved into an organized society. Hence the law-giver Gautama includes the *Dharma-*

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³ > कार्षापणं भवेद्दण्डो यत्ान्यः प्राकृतो जनः ।

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⁴ 1-4, 12.

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तत्र राजा भवेद्दण्ड्यः सहस्रमिति धारणा ॥ (Manu, viii. 336.)

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*śastra*, *Purāṇas* and customs of the country, of the community, or family as other sources of ancient Hindu law. To these Gautama adds equity also.¹

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¹ व्यवहारो वेदो धर्म्मशास्त्राण्यङ्गान्युपवेदाः पुराणं देशज्ञातिकुलध- म्म्र्माश्चाम्नायैः अविरुद्धाः प्रमाणः। ......न्यायाविगमेतकोऽभ्युपायस्तेनाभ्यूह्य. यथास्थानं गमयेत् । विप्रतिपत्तौ त्रयोविद्यावृद्धेभ्यः प्रत्यवह्य निष्ठां गम- येत् । (Gautama, xi. 19-26; cp. Manu, viii. 41 and 46.)

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In later days scientific commentaries on these codes of law such as *Mitākṣara* on *Yājñavalkya* came also to be considered as legal authorities to be consulted upon in adjudication of causes. It was the privilege of the great authors of the *Dharmasūtras* and *Dharmaśāstras* to interpret the tangled Vedic texts. Even Apastamba remarks of the great difficulty in discriminating law from the Vedas.² While Apastamba and Baudhāyana recognize the *śruti*, *smṛti*, and *siṣṭāchāra* (the *sadāchāra* of *smṛtis*) as the primary sources of law, Manu adds ‘आत्मतुष्टिः’ on which Garga thus comments.³ Yājñavalkya mentions these and adds other subsidiary sources—adjudication, judicial decision, *nyāya*, *mīmāṃsa*, royal edicts and local usages.⁴ In conformity with the law-givers the *Kauṭalīya* speaks of four heads of law—*dharma*, *vyavahāra*, *chāritra* and *rājaśāsana*. *Dharma* is to speak the truth, *vyavahāra* is to rest on evidence, custom is the decision of the community or a corporate body, and *rājaśāsana* is the royal edict, or command.¹ While accepting *dharma* as the basic source, Kauṭalya, practical statesman as he is, gives a preponderating position to equity in those cases where *dharma* or the sacred law is in direct contravention of all equity. This is also the ruling of Nārada² which is not unacceptable to Yājñavalkya who speaks of the superiority of the *Dharmaśāstras* to the *Arthaśāstra*.³ It is to be inferred from this that the recommendation of equity as a source of law did not mean the breaking of the traditional law which was considered a sin against God and religion. What is equity after all? Sir Henry Maine says: ‘Any body of rules existing by the side of the original civil law founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.’ This means that though the letter of the law is violated, the spirit of the law is always kept alive in adjudicating causes.

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² कृच्छा धर्मसमाप्तिः समाम्नातेन । लक्षणकर्मणात्तु समाप्यते । (ii. 11. 29. 13.)

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³ “वैकल्पिके आत्मतुष्टिः प्रमाणम्” ॥ वेदोऽखिलो धर्ममूलं स्मृतशोले च तद्विदाम् । आचारश्चैव साधूनां आत्मनस्तुष्टिरेव च ॥ Vide Kullūka Bhaṭṭa’s commentary on Manu, ii. 6.

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⁴ i. 3 and 7.

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¹ *Arthaśāstra*, Bk. iii, Sec. 1.

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² See Jolly, *Legal Procedure*, p. 41.

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³ स्मृत्योर्विरोधे न्यायस्तु बलवान् व्यवहारतः । अर्थशास्त्रात्तु बलवद्धर्मशास्त्रमिति स्थितिः ॥ (Yāj., ii. 21.)

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That law must change according to new conditions and circumstances must be borne in mind. And this was certainly understood and realized in ancient India. Even Yājñavalkya, the orthodox pandit, has to admit ‘equity’ at least as a secondary source of law. This means that positive law as found in the *smṛtis* was not adequate to minister to the needs of the times. In this respect Kauṭalya and Nārada show themselves not mere theorists as some scholars seem to believe, but practical men wellversed in administrative affairs. Because equity is recommended we cannot say that the authors have no regard for the law of the *śāstras*. Equity arises only when the law of the *smṛti* cannot properly provide equality of justice. Thus Kauṭalya and Nārada were not blind pandits as some take them to be but true statesmen. The sanction of law has the common will as the basis, and so long this idea of the common will underlies these legal principles, the law operates satisfactorily to all, whether you call it law, morality or by any other name. This common will is nothing but the expression of healthy public opinion which is a feature of ancient Indian democracy.

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Passing on to the consideration of the actual law in operation we meet more with civil justice than with criminal, ordinarily in the classical period of Hindu India. There is not much of the positive law in Vedic literature in general and this assumed definite shape, or became embodied in the codes of law or the *Dharmaśāstras*. Thus we find much of the positive law in these *smṛti* texts. There is no warrant for the theory that there was any elaborate judicial organization in the Vedic period or rather there was no need for it, the people living in scattered tracts and in groups, each group being self-contained and independent. Here the elders of that group took cognizance of the cases arising among the members of the group, and punishment was awarded according to the nature of the offence by the group elders in accordance with local usages or customs. Even here we cannot deny that the Vedic Indians had a conception of differentiation of the law as civil and criminal. Macdonell and Keith, after enumerating a few crimes such as slaying of an embryo (*bhrūṇa*), homicide, murder of a Brahman, and treachery, remark thus: ‘There is no trace of organized communal 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 remained in the hands of those who were wronged.¹ The system of money-compensation for murder is examined by R. Roth in a contribution entitled ‘wergelim Veda’ to the *Zeitschrift der Deuschen Morgenländischen gesellschaft*.² Surely it marks a stage when the criminal powers vested in the sovereign were rather weak and the latter was, perhaps, not sufficiently armed to award severe punishment.

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¹ *V. I.*, vol. i, p. 391.

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² *Z.D.M.G.*, vol. 41, pp. 372-76.

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The *Chāndogya Upaniṣad*,³ and the *Taittarīya Āraṇyaka*,⁴ enumerate a number of criminal offences which deserve the severest form of punishment. The thief caught in the act, the murderer of a Brahman, the defiler of the precepter’s bed, the drinker of spirituous liquors, the stealer of cows and gold, are all unpardonable crimes. The first text also speaks of the ordeal of the red-hot axe,⁵ perhaps used for suspected cases of theft. Inference is then irresistible that there was some sort of judicial procedure in vogue in the later period of the Vedic age.

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³ v. 10. 9.

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⁴ x. 65.

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⁵ vi. 16; cf. *Pañch. Br.*, 14. 66.

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On the question of the civil law the learned authors remark: ‘The relations of the family and the question of family property are dealt with under *urvara*, *kṣetra*, *pati*: succession and partition of property are treated under *dāya*. As regards the transfer of chattels—the recognized modes of gifts (*dāna*) and barter or sale (*kraya*) which includes exchange.’ Also money-lending contracts (*ṛṇa*) are allowed. As regards the procedure they seem to read in the terms *praśnin*, *abhi-praśnin*, and *praśna-viveka*, the plaintiff, the defendant, and the judge.

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The term *madhyamasi* in the Vedic texts seems to indicate that he must have been an arbitrator in the strict sense and not a judge. The civil procedure amounted to a voluntary arbitration. Did the Vedic laws exercise a moral check on the civil population is a moot question considered at length by Professors Macdonell and Keith. After refuting Zimmer’s view as regards the exposure of children and the aged, the learned authors accept the existence of prostitution as a regular institution besides adultery and incest in practice.¹ That these were condemned as offences is obvious. Thus the law was both legal and moral. It was in that way half-law, half-morality. It would then appear that in the Vedic period generally though a distinction was made between civil law and criminal law, law and morality, still there was very little judicial organization or procedure of the law. Justice as a distinct branch of the Government was in the making, towards the close of the classical period. For the *Dharmasūtras* and the epics not to speak of the *Arthaśāstra* of Kauṭalya deal with an elaborate and complex machinery of the judiciary which manifests that a settled society had come into being and in its wake, a code of law.

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¹ *V. I.*, vol. i, p. 392 ff.

Sec. ii. The Epoch of the Dharmaśāstras and the Epics

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In the period under survey (the age of the *Dharmaśāstras* and the epics), law tends to become territorial in character though it still remains essentially personal or religious. This transition is considerably helped by the growing conditions of the states themselves. The states are no more small units with a few hundreds of peoples.

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They are on the other hand big territorial units comprising a vast area. Even the ideas of an empire are not unknown. The *Rāmāyaṇa* shows an Indian Empire in theory stretching from the Himalayas to Ceylon all under the sway of Rāma. In this epoch again the subsidiary sources of law exercised a profound influence. With the organization of the judicial department there was also an advancement in legal procedure. The duty of the judges was the same as it is to-day. The application of the law to cases coming before them and interpretation of its technicalities and advice to the king on law, morality, and ethics were their chief functions.¹

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¹ Fick, *Social Organization*, Trans. by Maitra, p. 97.

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We have no direct evidence as to the method of appointing judges. To-day generally three methods are pursued in modern states—election by the legislature, as in Switzerland; popular election as in the individual states of the United States of America, and appointment by the head of the executive as in very many cases. The last method is commonly deemed the most satisfactory one and the little evidence there is on the subject shows that this was also the practice in ancient India. Election by the legislature was out of the question for there was no legislature as such. Popular election was not applicable to the central state machinery though it was known then. People forming different corporate bodies and those living in villages voluntarily appointed some learned elders of the village and the neighbourhood to decide disputes arising among themselves. These were more arbitrators than judges in the real sense of the word. For they decided cases by arbitration. Whatever might have been the method of election to the communal assemblies (this was undoubtedly by popular election), the judges of the royal court or the *sabhā* were invariably appointed by the executive Government who were competent to demand the necessary personal qualities required in a judge and select him for the office.¹

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¹ श्रुताध्ययनसंपन्ना धर्मज्ञाः सत्यवादिनः । राज्ञासभासदः कार्या रिपौ मित्रे च ये समाः । अपश्यता कार्यवशाद्व्यवहारान् नृपेण तु । सभ्यैः सह नियोक्तव्यो ब्राह्मणः सर्वधर्मवित् ॥ (Yāj., ii. 2-3.)

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The judges were usually selected from among the lawyers who were invariably of the Brahmana community. As the custodian of *dharma*, the Brahmana was essential for the filling up of the judicial offices. Jayaswal writes: ‘Law proper and law ecclesiastical in administration tended to unite into one and unite in the hand of the Brahman judge. And the Brahman was fairly above the influence of the king.’² Even in the *Jātaka* literature of the Buddhists we find the *purohita* and the Brahmans as ministers of law and justice.

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² Hindu Polity, part ii, p. 153.

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The qualities in a lawyer that marked him out to occupy judicial offices were independence of character, great learning in the various branches of law, and impartiality. These were essential in a judge according to Yājñavalkya.³ The *Mṛchchakaṭi* says: ‘Reproach indeed is easy, discrimination but of rare occurrence, and the quality of a judge is readily the subject of censure. A judge should be learned, sagacious, eloquent, dispassionate, impartial : he should pronounce judgment only after due deliberation and enquiry ; he should be a guardian to the weak, a terror to the wicked ; his heart should covet nothing, his mind be intent on, nothing but equity and truth, and he should keep aloof from the anger of the king.'¹ The judges were commonly called the *dharmādhikārin*, the *pradeṣṭṛ* or the *paṇḍita*.² The chief judge is called the *prāḍvivāka* who presided over the royal *sabhā* which was the High Court of justice. On this officer Nārada writes: ‘He is called a (*prāḍvivāka*) 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 (*prāt*) and passing a decision (*vivecayati*) according to what was heard or understood by him.’³ This officer was the representative of the king and invariably a Brahman.⁴ To this Bṛhaspati adds that the judge should examine the accused by questions and counter-questions.⁵ He must begin speaking in a pleasing manner perhaps to create confidence and then deal with the accused according to the law. Vyāsa rules that he must examine the case with the assessors and never by himself.⁶

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³ ii. 2, 3; cf. Bṛhaspati, i. 3: and Śukra, iv. 5. 14.

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¹ H. H. Wilson Trans. Act ix.

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² *Ar. Śās.* iv. 9; *Śukra* ii. 99, 100.

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³ i. 1-2 ; *S.B.E.*, vol. xxxiii, p. 233.

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⁴ यदाकार्यवशाद्राजा न पश्येत्कार्यनिर्णयम्। तदा तत्र नियुञ्जीत ब्राह्मणं शास्त्रपारगम्॥ (Kātyāyana quoted in R.N.R. p. 18.)

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⁵ विवादे पृच्छति प्रश्नं प्रतिप्रश्नतथैव च। प्रियपूर्वं प्राग् वदति प्राड्विवाकस्ततः स्मृतः॥ (Rājanītiratnākara, p. 18.)

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⁶ विवादानुगतं दृष्ट्वा ससभ्यस्तु प्रयत्नतः। विचारयति येनासौ प्राड्विवाकस्ततः स्मृतः॥ (*Ibid.*, p. 19.) Cf. Manu, viii, 10

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The other court-officials mentioned in the *Arthaśāstra* are the bench-clerk in modern parlance, and the officers of the jail (*bandhanāgārādhyakṣa* and *cāraka*). These, not excluding the judges, were liable to punishment if they misconducted themselves. The nature of the punishments varied according to the gravity of the offences. Cases, wherein the *pūrvasāhasa daṇḍa* was applied, were threatening, brow-beating, sending out of court or unjustly silencing; double of that punishment for defaming or abusing a party to a case in his court. The *madhyamasāhasa daṇḍa* was applied for not asking a question which ought to be asked (*pṛcchya*), asking one which ought not to be asked (*apṛcchya*), rejecting the answer to one which has been asked, and for tutoring, prompting, or reminding a witness. The *uttamasāhasa daṇḍa* was again for corruptly giving advice to parties, settling wrong issues, delay in the settlement of issues, wrong devices to postpone cases, wasting time so as to tire out parties, forcing them to leave the court and taking up cases already disposed of. Again a judge or commissioner who imposes an improper fine is liable to a fine of twice the amount, or of eight times the sum by which the fine imposed exceeds or falls short of the proper sum. A judge or commissioner unjustly inflicting corporal punishment is liable to the same punishment, or to pay twice the amount of fine ordinarily imposed in lieu thereof.¹ There are also punishments mentioned for offences committed by the bench-clerk as well as the jail officials.² The *Vyavahāramayūkha* (p. 3) on the authority of Bṛhaspati and Vyāsa mentions another court-official (साध्यपालः). He was to carry to conclusion matters at issue (साध्यस्य साधकः) by inviting and protecting the witnesses, the plaintiffs and the defendants. He must be honest, truthful and in the confidence of judicial officers. He was invariably a member of the Sūdra community.¹

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¹ F. J. Monahan, *Early History of Bengal*, pp. 122-23; cf. Yāj. ii. 1-4.

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² *Arthaśāstra*, Bk. iv. 9. 'A procurator in a king's court unjustly prosecuting an innocent man, should pay for his guilt with his life. The jailor or the person whose duty is to punish offenders with his own hands, should pay the fine himself in the event of his suffering a criminal duly 29 convicted and sentenced to escape from his custody.’ *Agni*, ccvii. 65-66 M. N. Dutt Trans.

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¹ आकारणे रक्षणे च साक्ष्यर्थिप्रतिपादिनाम् । सभ्याधोनः सत्यवादो कर्तव्यस्तु स्वपूरुषः ॥ साध्यपालस्तु कर्तव्यो राज्ञा साध्यस्य साधकः । क्रमायातो दृढःशूद्रो सभ्यानां च मतेस्थितः ॥

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Thus the judge of ancient days had to shoulder heavy responsibilities. These indicate the fact that the tenure of his office depended to a great extent on his good behaviour in deciding cases. If he misbehaved he was liable to punishment which necessarily led to the resignation of his office. Side by side with this responsibility their independence was of course unquestioned. Jayaswal aptly remarks: ‘the administration of justice under Hindu monarchy remained always separate from the executive and generally dependent in form and ever independent in spirit.’²

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² *Hindu Polity*, part ii, p. 152.

Sec. iii. The Organization of the Judiciary

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From early Vedic days of Hindu India the administration of justice was centralized. The monarch was alone the administrator of both law and justice. But as time went on and as a settled order of society came to be the rule, it was not possible for the reigning chieftain to carry out all the functions of a judiciary which grew by degrees in volume and extent. So his work had to be entrusted to expert hands who administered the law in the name of the king, or rather the king-in-council.

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It is an interesting topic of discussion whether there were regular courts of justice in the pre-classic and the classical period of Hindu India. There is no certain evidence of the existence of such courts as permanent institutions. It may be that the king heard all such complaints in the open court of his palace with his councillors and advisors, and did justice and gave judgment. The king's court might have served the purpose of a law court. But this was only for the time. Traces of permanent institutions for administration of justice are clearly seen in the *Dharmaśāstra* and the *Arthaśāstra* treatises. There is evidence of the fact that by this time the size of the kingdom must have grown larger which made it impossible for the king to attend to all aspects of an ever-growing administration.

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The *Kauṭalīya*,¹ mentions two kinds of court, the *dharmasthīya* and the *kaṇṭakaśodhana*, which are civil and criminal courts respectively,² as we understand them to-day and which is the most usual division of courts of justice now obtaining in modern states, though by no means a universal division. Usually three ministers of law sat to decide cases in each of these two courts. But the decision of *Kauṭalya* is in no way a cut and dried classification. If we consider the nature of the cases that came under the purview of these two courts there is reason to believe that the latter court had, in addition to being a committee of enquiry to hear cases and prevent crimes, the power to inflict corporal or capital punishment on the offenders. The following is the categorical list of cases that came under the jurisdiction of the *dharmasthīya* court.¹

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¹ Bks. iii and iv.

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² Prof. K. V. Raṅgaswami Aiyangar is right when he translates these two terms as ‘common and canon law courts’ and ‘administrative and police courts.’ *Aspects of Polity*, pp. 43-44.

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¹ Cf. N. N. Law, *Studies in Ancient Hindu Polity*, pp. 119-20.

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1. Contracts in general, व्यवहारस्थापना.
2. Contracts of service, समयस्थानपाकर्म.
3. The rights and duties of the employer स्वाम्यधिकार:
4. The rights and duties of the employed, भृतकाधिकार:· 5.*a* Questions relating tothe institution of slavery, दासकल्प:·
5. Debts, ऋणादानं.
6. Deposits, औपनिधिकं.
7. Sales and pre-emption, विक्रोतक्रितानुशय:
8. Presents and gifts, दत्तस्थानपाकर्म.
9. Highway robbery, साहसं, *Cf. S. T. R. 8, i, 204-5.*
10. Assault, दण्डपारुष्यं, *Cf. Agni, 258, 15-18.*
11. Defamation, वाक्यपारुष्यं, *Cf. Ibid., 1-4.*
12. Gambling, द्यूतसमाह्वयं, *Cf. Ibid., 257, 47-53.*
13. Illegal sale of property, अस्वामिविक्रय:·
14. Rights of Possession, स्वामिसंबन्ध:·
15. Boundary disputes, सीमाविवाद: मर्यादास्थापनं, *Cf. Agni, 257-69, S.T.R. 8, 1, 168-173.*
16. Houses and their sites, वास्तुकं· 17. Damage to crops, pastures, roads, etc. विवोतक्षेत्रपथहिंसा, Cf. Agni, 257, 10-14.

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18. Marriage and ‘Dowry’ price, विवाहधर्मः, स्त्रोधनकल्पः.

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19. Co-operative undertakings, संभूयसमुत्थानं, Cf. S.T.R. 8, 1, 223-24.

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20. Inheritance and succession, दायविभागः, दायक्रमः: Cf. Agni, 256 (whole chapter) S.T.R. 8, 1, 135-67.

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21. Rules of procedure, विवादपदनिबन्धः.

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Taking these one by one we find contracts are of different kinds, oral or documentary and entered into for varied purposes.¹ This is not the place to examine the various clauses and the rules and restrictions relating to the law of contract though a very interesting subject. Suffice it to say that the agreement was to be clear and plain (सम्यक्विभाषितं), drawn up in public (अच्छन्नं), and before witnesses (साक्षितमत), noting down the place (देश), time (काल) and the community (वर्ग), perhaps of both the parties as well as the circumstances (रूप, लक्षण) under which it was effected.²

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¹ There were mainly three kinds of documents,—state documents (राजलेख्यं), documents of the country parts (स्थानकृतं) and those written in one's own hand (स्वहस्तलिखितं). There were other kinds under these three heads. (Vyavahāramayūkha p. 15.)

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² Arthaśāstra, Bk. iii, Sec. i.

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It would appear from this that a contract ought to satisfy all the technicalities of law so that the contract would be accepted as valid by the court in case it was presented to it. If not, (कर्ता and श्रद्धेय) both the proposing and the accepting parties, witnesses (श्रोता) and mediators (कारयिताः) were all liable to the penalty of a fine.¹ Contracts entered into, late during the night are invalid, but not those in the early portion of the night.² Diseased women, ascetics, old men, convicts, the deformed and such like are legally unfit to make contracts.³

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¹ Arthaśāstra, Bk. iii, Sec. i; cf. Manu, 8. 51-52 and 154; Yāj., ii. 91.

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² (पूर्वरात्रव्यवहारिणः) (Ibid., Bk. iii, Sec. i.)

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³ Ibid.

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The next item of importance that came before this common-law court was that which concerned labourers. Wages were to be previously fixed and paid after the completion of the work. These should be fixed according to the circumstances of time and place. Delay to pay the due wages is punishable with a fine of five times the amount agreed upon. It is ten times the amount if the delay is wanton. The same is applicable to the employees also. If they failed to carry out the work before the appointed time, or had not done full justice to it, they were liable to a fine. As for the slaves several kinds might be distinguished—purchased, captured in war or mortgaged. They were entitled to possess private property which went to their masters only in the absence of any legal heir. One could however recover his independence on payment of an adequate compensation-price.⁴ There were several healthy regulations affording protection to the slaves whether male or female, ārya or mlechchha.

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⁴ मूल्येन चार्‍यत्वं गच्छेत् । (Ibid., Bk. iii. 13.)

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A word may be said regarding the lending of money without prejudice to the progress of the kingdom.⁵ The rate of interest was uniform and fixed by the state.

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⁵ (राजन्ययोगक्षेम) Bk. iii. 11. (Cf. Agni, chap. ccliv, for further details on debts.)

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The *Saṃhitas* fix it at 15 per cent. per annum. The ruling of Vyāsa on this point is interesting. ‘In the case of a pledge the rate of interest is 1¼ per cent per month. In the case of a surety the eighth part is added to this. In the absence of either (a pledge or surety) 2 per cent. per mensem would be levied from the debtors of the sacerdotal class.¹ We can understand Kauṭalya prescribing different rates of interest for traders in forests, by sea, and by land, for secured and unsecured loans.

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¹ Quoted in *Col. Digest*, i. 30; cf. Yāj., ii. 38 : Manu, 8. 140 : Vasiṣṭha, ii. 51 ; Nārada, i. 99 : Bṛhaspati, xi. 3.

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As regards deposits we have two kinds, open (निक्षेप) and sealed (उपनिविः).² Bṛhaspati defines the latter ‘when chattel enclosed in a cover and marked with a seal is deposited without describing its nature or quantity and without showing it, it is termed an *aupanidhika* deposit.’ It is for the depository to preserve it intact so that it might not be used, damaged or diminished in value. In any of these cases the depositor could seek the aid of law for compensation.³ Special informants were employed to find out the truth as to the honesty or otherwise of the depository. The same rules are applicable to cases relating to pledges (आधि).⁴

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² *Arthaśāstra*, Bk. iii, Sec. 12.

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³ S.B.E. vol. xii, 3 ; cf. Manu, 8. 18-24; Yāj., ii. 66; Nārada, ii, 5; Agni, 227. 7-8.

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⁴ *Arthaśāstra*, Bk. iii, Sec. 12.

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The *Kauṭalīya* devotes three chapters to the law regulating immoveable property; houses, fields, gardens, tanks, and others. Owners of immoveables would in the first instance offer them for sale to their kinsmen (ज्ञातयः), and then to their neighbours (*sāmanta*), and on the rejection from both their own creditors. From these Jolly and Law infer that the right of pre-emption existed in ancient India though disproved by the *Mitākṣara* and other commentaries.¹ Such a sale was to be effected by public auction and before forty elders of the neighbourhood. If the bidding exceeds the already published price the excess is made over to the state besides a certain percentage of duty on the sale price. It is significant to note that by formulating these rules ancient compilers of the *Dharmaśāstras* and writers of the *Arthaśāstras* endeavoured their best to avoid complicated cases of litigation which is a sad feature of our times. As regards houses, buildings, there are regulations affecting their permanence, sanitation, construction of windows, drainage, water-supply, privy, etc. Disputes arising from them and such others as the boundary disputes were to be settled by the neighbours and village elders. Wrongful possession of estates and the enjoyment there-of were severely dealt with, these amounting to cases of theft. Damages of any sort to irrigational works were visited with high penalty.²

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¹ Law, *Ancient Polity*, pp. 156-57.

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² पश्ान्निविष्टमधरतटाकं नोपरिटाकस्य केदारमुदके नाप्लावयेत । उपरि निविष्टं नाधरतटाकस्य पूरस्त्रावं वारयेत . . . . . । (*Arthaśāstra*, Bk. iii, Sec. 9.)

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The term *sāhasa* means the seizure of property or persons openly and violently.³ The punishment depended on the value of the articles taken. The term *vākpāruṣyam* includes defamation (*apavāda*), insult (*kutsana*), and threat (*abhibhartsana*).⁴ There are different scales of penalty for all these. *Daṇḍapāruṣya* or assault is touching, striking, or hurting wilfully or otherwise.¹ Various restrictions were placed on gambling. Gamblers were to take licenses, pay rents, and use the dice approved of by the state-superintendent. Otherwise they were punished heavily.²

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³ साहसमन्यवत्प्रसभकर्म । (*Ibid.* Bk. iii. Sec. 17.)

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⁴ *Cf. Agni*, 227. 23-31.

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¹ *Vide Early History of Bengal*, pp. 106-7.

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² *Arthaśāstra*, Bk. iii, Sec. 17.

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There are again offences connected with marriage. Some of them are one man impersonating the other who has paid the bride-price (*śulka*) for a girl, obtaining a bride for one man after undertaking to get her for another, refusing to give a girl in marriage as agreed upon, and substituting a different girl for the one whom it had been agreed to give in marriage. The scale of fine was to vary with the gravity of the offence. There are regulations as to divorce by the husband, or the wife, as the case may be, and also regulations touching the inheritance of property among the various sons of the deceased father. How and in what proportion they are to be distributed among the various sons of perhaps different mothers is an interesting chapter of Hindu law. Incidentally the rights of a married woman towards her own property and that of her husband are dealt with. Anything contrary was visited with penalty.³

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³ *Ibid.*, Bk. iv, 12; cf. *Agni*, ccxxvii. 15, 17 and 40-45.

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Last but not least are co-operative undertakings by individuals or groups. Hired workmen failing in the discharge of their duty forfeit twice their previous earnings. Villagers who do not share in the common shows or amusements are deprived of their benefits. Profits and losses are distributed by the traders or the cultivators who work on the partnership system. The same is applicable to anything affecting the common interests of the village community such as the performance of a *yajña* or sacrifice.¹

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¹ *Arthaśāstra*, Bk. iii, Sec. 14.

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The following cases were taken cognizance of by the criminal law-court.²

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² *Ibid.*, whole of Bk. iv.

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1. Protection of artizans, merchants, etc. कारुकवैदेहरक्षणं.
2. Suppression of the undesirables: गूढाजीवोनां रक्षा.
3. Detecting criminals by means of spies: मानवप्रकाशनं.
4. Arresting the suspicious or real culprits: शङ्कारूपकर्माभिग्रहः.
5. Post-mortem examination: आशुमृतकपरीक्षा.
6. Discipline in the various state departments: सर्वाधिकरणरक्षणं.
7. Punishment for mutilation. एकाङ्गवधनिष्क्रयः.
8. Capital punishment with or without torture: शुद्धश्चितश्चदण्डकल्पः.
9. Ravishment of immature girls: कन्याप्रकर्म.
10. Examination by word and action thereon: वाक्यकर्मानुयोग.
11. Miscellaneous offences: अतिचारदण्डः

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The first six items mentioned above are police functions, the ultimate control of which lay with the magistrates of criminal justice. These are detecting crimes, and arresting the suspicious, protecting the civil population, preventive regulations against committing of crimes.³ The last five items show that the conception of administration of criminal justice went hand in hand with the police jurisdiction, and the one completed the other and was completed by the other. Police officials were the instruments for bringing to book law-breakers. There was a strong police organization affording security to the civil population. Much of the police control was by means of informants who sometimes acted as agents provocateurs. If the person suspected were an officer of rank the police officer would approach him and address him by taking him into his confidence. He would offer the officer a sum of money as bribe for letting his friend out of the trouble he was in. If this were accepted the officer was at once reported as charged with corruption and banished out of the land. The functions attributed to the informants, such as, shadowing the suspected, find a parallel in the modern secret police organization. When notices of property stolen and house-breaking reached the office there was police search with all strenuousness and the culprits were often found out. There are ample instructions for investigating cases of homicide and suicide which all go to show the high level, culture and civilization had attained during the epoch of the Mauryas.¹

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³ *Ibid.*, cf. Yājñavalkya, ii. 269-71.

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¹ *Arthaśāstra*, Bk. iv, Sec. 4 & 5.

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Passing on to actual criminal cases we find severe punishments meted out for thefts of royal property as well as private property. The scale of fines varied with the values of the property stolen. The same applies to forging deeds or counterfeiting seals. There is mention in the *Arthaśāstra* of the punishment of mutilation, but there is every reason to believe with Monahan² that this practice had fallen into disuse by the time of the composition of the famous treatise. No doubt the older codes recommended the mutilation of certain limb or limbs, graduated according as the gravity of offences warranted.¹ But the author of the *Arthaśāstra* seems to be more humane in outlook. Even in this recommendation, he does not claim any departure from the accepted codes of the land.

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² *Early History of Bengal*, p. 124.

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¹ *Arthaśāstra*, Bk. iv, Sec. 10 & 11.

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The chapter on ‘*Śuddhacitraśca daṇḍakalpaḥ*’² is both interesting and instructive from more than one point of view. It shows the nature of capital punishments in practice in the fourth century B.C. in India, and the principle on which such punishments were inflicted. The criminals are divided into two classes, according to the *Kauṭalīya*—those who are cruel in their offences, and those who are not cruel. Death penalty without torture to the latter and with torture to the former is recommended. Even in this ruling the *Kauṭalīya* takes care to mention that it is supported by the *śāstras*.³ But death was not always the penalty. Fines and compensation price were the penalty, if the person, wounded in an affray or riot, should die after a fortnight and beyond. Hurting a person with wounds and causing abortion by violence were also attended with fines. For treasonous offences, parricide and such other capital offences, death was the penalty with torture. The person who was guilty of poisoning is drowned if male, and was put to death tortured by bulls, if female. There are several other offences mentioned.⁴

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² *Ibid.*, Bk. iv. 11.

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³ एते शास्त्रेऽनुगताः क्लेशदण्डा महात्मनां । अक्लिष्टानां तु पापानां धर्म्म्यः शुद्धवधः स्मृतः ॥ (Bk. iv, chap. 11.)

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⁴ *Ibid.*

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The other class of offences taken cognizance of by this *kaṇṭakaśodhana* court are those of illicit unions or sexual intercourse illegitimately indulged in. Here also the punishments vary from fines to mutilation and death. Cases where intercourse is held with mature or immature girls, with or without their consent, are dealt with. Incidentally are mentioned offences connected with marriage in the same chapter which would repay perusal for those connected with movements for freedom of marriages. Adultery is one of the offences coming under this head.¹

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¹ *Arthaśāstra*, Bk. iv. chap. xii-xiii ; cf. Yājñavalkya, ii. 286-97, Agni, 227. 40-5 ; 258. 68-71.

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There is then the more important question of torture in meting out punishments. This has been discussed elsewhere.² The chapter in the Kauṭalīya entitled ‘वाक्यकर्मानुयोग’³ has been mistranslated and consequently misinterpreted. As this question is of moment we will once again examine our position having always an eye to the recommendations given in the Dharmaśāstras. If we read and understand this chapter in the light of the smṛti texts, much of the misinterpretation will be removed. The question resolves itself thus: whether torture was used as punishment after the decision of the judges, or to elicit confession of guilt. Dr. Shama Sāstri translates the title, ‘trial and torture to elicit confession’ and Monahan ‘the questioning of an accused person by word and by act’ without or with torture. Monahan then remarks: ‘As in ancient Europe, torture appears to have been applied to elicit a confession from an accused person whose guilt had been established by other evidence—a practice based on the view that, as the best and more conclusive evidence of guilt, a confession should be obtained, where that is possible, to clinch and confirm other proof.¹ This is building a theory; but to our knowledge there is not a single statement in the chapter under review which we can regard as providing evidence in favour of the application of torture for eliciting confession. In the later portion of the chapter, Shama Śāstri himself translates it as ‘cross-examination.’ The title simply means ‘examination on evidence and action to be taken thereon’. This shows that only avowed culprits were subjected to torture, and not the ‘suspected’ as some scholars would have us believe.

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² Proceedings of Third Oriental Conference, pp. 628-9.

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³ *Arthaśāstra*, Bk. iv, chap. viii.

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¹ *Early History of Bengal*, p. 119.

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If this interpretation were to be accepted, then one of the several arguments advanced by J. Jolly in favour of establishing the *Arthaśāstra* as a purely secular treatise, falls to the ground. Dr. Jolly says that ‘the *Arthaśāstra* recommends judicial torture for persons suspected of crimes, while the *Dharmaśāstra* administers ordeals in doubtful cases’. ² The ordeals of fire, water, weighing and poison that are found in the *smṛtis* have also been noticed in some of the Vedic literature and they are not unknown to Hieun Tsiang, the Chinese traveller.³ He refers to this practice when he visited India centuries after the composition of the *Kauṭalīya*. The ordeals for doubtful cases in spite of the recommendation of the codes of law are certainly questionable expedients resorted to by the ancient Hindu judges. But we would grant that they served the purpose well in those days when conditions were quite different from the present, and when theft, highway robbery, and corruption were rife. But even these ordeals were not used for any and every offence. Only to cases in which serious crimes and treasonous acts were involved these ordeals were applied. In other words their application was extended to transactions involving more than a thousand paṇas.¹

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² *Vide* Introduction to *Arthaśāstra* edited by Jolly in the Punjab Sanskrit Series.

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³ Beal, *Buddhist Record of the Western World* Bk. ii, p. 84; *Vyavahāramayūkha*, pp. 28-54.

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¹ नासहस्राद्धरेत् कालं न विषं न तुलां तथा । नृपार्थेष्वभियोगे च वहेयः शुचयः सदा ॥ (Yājñavalkya, ii. 101.) Kātyāyana quoted in the Vyavahāramayūkha, pp. 13-14.

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Kauṭalya who must have known the use and value of ordeals introduces judicial enquiry and thus anticipates early the development of the modern jury system. For cases involving severe punishments such as torture, the Kauṭalīya furnishes us with the sound and logical method of enquiry and trial on evidence. It is prescribed, Monahan says, that ‘if the defendant's answers to the questions addressed to him are corroborated by reliable witnesses he shall be acquitted ; otherwise he shall be subjected to torture.’ This latter means action would be taken against him. Again ‘the guilt of a suspected person should be established by the production of such evidence as the instruments used in committing the crime, accomplices and abettors, the stolen articles, and persons concerned in its sale or purchase. In the absence of such evidence the accused should be acquitted.’² Only those whose guilt has been proved shall be subjected to punishment. This is quite in keeping with Nārada’s question to Yudhiṣṭhira: ‘Do you not punish the innocent for their alleged wrongs contrary to the rule of law by means of your law-officers?’³

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² शङ्कानिष्पन्नमुपकरणमन्त्रिसहायकूपवैथ्यावृत्यकरनिष्पादयेत् । कर्मणश्च प्रदेशद्रव्यादानांशविभागैः प्रतिसमानयेत् । एतेषां कारणानां अनभिसंधाने विप्रलपन्तमचोरं विद्यात् । (Arthaśāstra, Bk. iv, ch 8.)

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³ Mbh., Sabhā, chap. v. 108-110.

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Besides judicial enquiry, the *Arthaśāstra* recommends another method by which one could get at the truth. This is through the instrument of special police officers.¹ The following one or two examples would show how this was effective in detecting and suppressing people of criminal tendencies. If a judge were suspected of bribery and corruption, an informant would be set upon him. He would go to him as a friend of one whose case was pending final disposal, and offer him a certain amount so that the judgment would be in his favour. If the offer was accepted he was charged guilty and punished. In the same way one who is suspected of manufacturing counterfeit coins might be approached by another the latter offering himself for apprenticeship. While under his service, the manufacturers could be betrayed and brought to book.²

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¹ Cf. Manu, ix. 261.

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² *Arthaśāstra*, Bk. iv. 4 and 5.

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In the above statements which are mere translations of the *Arthaśāstra* texts, we find infalliable testimony as to the use or application of torture as punishment only after the guilt is *proved* and never to *doubtful* cases. Monahan thus speaks of both things at one and the same time. We are not able to follow him in this respect. The texts certainly warrant our statement that action could be taken only in the cases where the guilt had been brought home beyond any question and on the solid rock of evidence.

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‘आप्तदोषं कर्मकारयेत्’ ।

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Kauṭalya has certainly a deep sense of justice which does not allow him to stray beyond the legitimate sphere. He is up in arms against the unjust and *adhar-mic* methods of punishment.³ And it does not appeal to our reason that an author with such conceptions would lend himself to prescribing judicial torture to the suspected. A full and careful study of the *Arthaśāstra* shows Kauṭalya to be a constitutionalist statesman with a complete understanding of the *Dharmaśāstras* and willing to abide by them. The eighteen kinds of punishment mentioned have nothing of novelty about them. Manu has in fact ruled that the limb of the body which was responsible for the guilt must be cut off in the interest of the progress of the state.¹ In the case of Brahman culprits Kauṭalya follows the *Mānava-Dharmaśāstra* dictum, viz., banishment.² Thus it is seen that Kauṭalya has not broken any new ground but has consistently adopted the main principles of the Law-Codes. He nowhere sacrifices principles of *dharma* at the altar of worldly ends. To entertain such an opinion is to misread him. The *Arthaśāstra* in most respects does not fall short of the rulings of the *Dharmaśāstras*. Do not the latter deal with secular questions of state, law, and policy? What more has *Arthaśāstra* done to break away from the *Dharmaśāstras*? It explains in elaborate detail secular subjects which have been summarily dismissed with simple mention by the law books.

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³ *Ibid.*, vii. 5.

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¹ iii. 334.

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² viii. 124.

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The different kinds of corporal punishments³ mentioned are whipping, hanging, caning, burning finger-joints, branding, water-tube torture and several others under the general term of *vyavahārikakarma* which is again subdivided into four divisions. It would appear that fresh punishments were employed day after day for a period of time, and this was perhaps in the case of very serious offences like sedition. Even in the award of punishments great discrimination was employed. The standard of punishment to women-folk was only half of what it was to the men. Again pregnant women and those who had not passed a month after delivery were exempted from torturous punishments. Others exempted were persons accused of minor offences (mandāparādha), the young, the aged, the diseased, the intoxicated, the mad, those suffering from hunger, thirst or fatigue due to journey, those who have confessed their guilt (ātmakāśitam) and the physically unfit.¹

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³ *Arthaśāstra*, Bk. iv, Sec. 8; cf. Agni, chap. ccxxvii. 22-38, 49-54.

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¹ While the editions of Shama Śāstri and Jolly contain ātmakāśitaṃ, the Śrīmūlam (Trivandrum) edition has āmakaśitaṃ (vol. ii, p. 154.) This is interpreted as meaning ‘dyspeptic persons’. Granting the term ātmakāśitaṃ (which in the context seems unlikely), if a confession of guilt were made, it is reasonable to mete out punishment of a less severe character. This is perhaps what made the sage Māṇḍavya accept guilt though innocent, in order to free himself from the punishment of torture. For there were visible pieces of evidence by his side which would prove the guilt. But still the king was unjust enough to order his impalement. Truth triumphed in the end. His innocence saved the sage and the king was punished for his unjust action. For details of the legend see chap. cxvi-vii, Ādi Parvan of the Mahābhārata.

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But the general practice seems to be that found in the Kauṭalīya. There was a searching enquiry into the whole case and the punishment was decided on the strength of the evidence.² This is akin to the modern practice of the jury pronouncing guilty or not guilty³ and the judge deciding on the nature of the punishment on the merits of the case.⁴ Again the dramatist Śūdraka whose date is generally accepted as the third century A.D. explains this position in dealing with a criminal case. The sessions judge who is called *adhikāraṇika* speaks of the two-fold *vyavahāra* or case.¹

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² Cf. Yājñavalkya, ii, 269-72.

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³ (vākyānuyoga)

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⁴ (karmānuyoga) For the term Karma, see S. T. R., 8, 1, 61.

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¹ वाक्यानुसारेण, अर्थानुसारेण च । यस्तावत् वाक्यानुसारेण, स खलु अर्थप्रत्यर्थिभ्यः । यथार्थानुसारेण स चाधिकरणिक बुद्धि निष्पाद्यः । (*Mṛchchakaṭi*, Act ix.)

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Investigation of the case relates both to the verbal assertion and its merits. The former stands in relation to the plaintiff and respondent, while the merits of the investigation rest with the judges or the jury. Here ‘अथ’ is used for *karma* of Kauṭalya and अनुसार for अनुयोग. It requires no stretch of imagination to realize that these are synonymous terms. Thus from the third century B.C. to A.D. 300 tradition speaks of a uniform practice in continuance. The *Śukranītisara* also recommends trial for getting at the truth besides the use of mystical or occult practices. The sentence is to be delivered after weighing the evidence.²

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² > साक्षिभिलिखितैर्भोगै शुलैर्मूतैश्च मानुषान् ।

Sec. iv. Mr. Edwardes' Views Examined

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In the course of his criticism of a paper of mine³ the late Mr. S. M. Edwardes wrote under date March 17,

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³ 'Is *Arthaśāstra* Secular?' Proceedings of the Third Oriental Conference.

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खानुत्पादितसंप्राप्तव्यवहारान् विचिंत्य च ।
दिव्यसंसाधनाद्वापि केषुकिं साधनं परम् ।
युक्तिप्रत्यक्षमानोपमानैः लोकशास्त्रतः ।
बहुसम्मतसंसिद्धान् विनिश्चिय सभास्थितः ।
ससभ्यः प्राद्विवाकस्तु नृपं संबोधयेत सदा । (ii. 97-99.)

c10.s4.4

1926: ‘The arguments on page 626 regarding the punishment of evil-doers do not strike me as very convincing. I think that we of the twentieth century with our views about the liberty of the subjects and the right of every man to receive justice by open trial are apt to forget that these ideas have gradually been evolved in the course of many centuries and we are in danger of trying to ascribe anachronistically somewhat similar ideas to the people of vanished epochs. I cannot bring myself to believe that justice under the Mughals, for example, was other than capricious and liable to be marred by corruption, or that the savage punishments in vogue always fitted the crime. And if that is true of the Mughal age, surely we cannot expect a higher standard under a despotism of much earlier times like that of the Mauryas.’

c10.s4.5

‘The same doubts occur in connection with the question of torture discussed on page 628. Suspects were tortured both in Europe and India at a much later date, many centuries after the date of Kauṭalya, and I cannot believe that there was, as you suggest, any process or practice which even remotely afforded to the criminal of the Mauryan times the protection afforded by the jury system to a criminal of to-day.’ Such views are by no means peculiar to the late Mr. Edwardes and as such deserve examination.

c10.s4.6

In more than one place in this thesis it has been remarked that it is always hazardous to judge things ancient Indian by modern standards. Edwardes is seen to push the theory of evolution too far. In human affairs progress is possible as well as retrogression, and Kauṭalya has to be judged by what he has laid down, understood in accordance with his age and not with our notions of evolution or analogies from Mughal India. The administration of justice under the Mughals could by no means have been the product of evolution from Mauryan justice. Our examination shall be strictly on the basis of the *Kauṭalīya* texts and the prevalent notions of justice in Hindu India derivable from the *Dharmaśāstras* and *Arthaśāstras* checked now and again by glimpses which we get of practical administration in ancient India.

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