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Hindu Administrative Institutions c10.s1: Sec. i. In the Vedic Period

Hindu Administrative Institutions c10.s1

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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.

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