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Hindu Administrative Institutions c10.s2: Sec. ii. The Epoch of the Dharmaśāstras and the Epics

Hindu Administrative Institutions c10.s2

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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.

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