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Hindu Administrative Institutions c10.s3: Sec. iii. The Organization of the Judiciary

Hindu Administrative Institutions c10.s3

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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 ।

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