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Hindu Administrative Institutions c10.s4: Sec. iv. Mr. Edwardes' Views Examined

Hindu Administrative Institutions c10.s4

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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.)

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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.’

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‘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.

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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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Again there have been several arts and sciences extant in Hindu India which have become extinct in the Muhammadan and Mughal periods of Indian History. On this account could we deny the existence of these arts and sciences once in a flourishing state? If the Mughal monarchs indulged in savage punishments, and justice was capricious, it was because they came from a land where the state of culture and civilization demanded it, and they did not make enough allowance for the altered circumstances. They were invaders and hence foreign to the Hindu ideals and practice of government and law. In other words the tradition behind them was not Hindu in character or spirit, but rather antagonistic to it.

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The next point of Edwardes is that suspects were tortured, at a much later date both in Europe and in India, and hence the criminal of the Mauryan epoch could not have had the benefit of the protection afforded by the jury system of to-day. Here again the practice of torturing the suspects in much later times is no argument that in much earlier times there could not have been open trial. According to Monahan torturing the suspected is still in practice. He says: ‘To this day as is well-known, Indian Police Officers, in investigating cases are prone to attach undue importance to the object of procuring a confession and with this object sometimes resort to questionable expedients.¹ We need not be told of course what these expedients are. In the face of this fact could we say there is no institution of trial by jury in India to-day? The fact is that so long as human nature is what it is, such expedients would always exist whether the law allows it or not. But these could not nullify the recognized practice of open trial and a searching enquiry of the case.

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¹ *Early History of Bengal*, p. 119.

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That the jury system was a *de facto* institution even in centuries before the Christian era is proveable. Jayaswal writes: ‘They (the judges) made up the Sabhā and were, to quote a modern word, the jury of the Court.’² Pramatha Nath Banerjee³ also accepts the prevalence of the jury system. But to him the point of its actual working is not clear. He quotes the text of *Nārada*, *Śukranīti* and other *smṛtis*⁴ which go to prove that besides the members of the assembly, other persons present in court and acquainted with the law, not excluding the members of the trading community, were asked to offer their opinions on the matter. The obscure point becomes clear if we were to simply ponder over the statements given. It is reasonable to conjecture from this that influential and qualified persons often formed the jury of the court, and these were chosen then and there. From this it would appear that the jury was not a permanent institution while the judges held permanent offices.

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² *Hindu Polity*, part ii, p. 154.

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³ *Public Administration*, p. 143.

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⁴ *Legal Procedure*, iii. 2; *Śukra*, iv. 5. 27.

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It has been already pointed out that the *vākyānuyoga* (वाक्यानुयोग) is the jury pronouncing on guilt or innocence, and the *karmānuyoga* (कर्मानुयोग) is the judgment of the chief justice. That this was the current practice Prof. Banerjee agrees. He writes: ‘The three or five members of the judicial assembly acted as jurors as well as judges but the final decision rested with the chief judge.’¹ There is every reason then to suppose that Kauṭalya certainly advocates open trial and is for acquittal of the innocents. The following case in the *Mahābhārata* may be read with interest in this connection.² When all the Pāṇḍavas including Draupadī lost their independence by gambling and became slaves of Duryodhana, Draupadī appeals to the open court as to the validity of Yudhiṣṭhira’s action in having wagered her as the object of his gamble after he himself became a *dāsa*. Bhīṣma says that he could not understand the subtleties of *dharma* and answered that Yudhiṣṭhira was their best judge.³ Bhīṣma, Droṇa, Vidura and several others acted, as it were, as jurors, but the majority inclined in favour of Draupadī who pleaded most eloquently, stressing her points on the merits of her case. The final decision lay of course with the king. He ruled that Draupadī’s point was in order and released all the Pāṇḍavas from slavery. Here Vidura entreats every fellow-member in the court to speak out *dharma* or law, and *satya* or truth. If a jury having known all the legal points involved would speak with prejudice, or keep silence, it amounted to his having uttered a falsehood and hence his action was not moral.⁴ It is Bṛhaspati who prescribes that it was the function of the king to decide whether the case before him was true or not.¹

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¹ *Public Administration*, p. 143, ² *Sabhā Parvan*, chap. 89 ff. ³ नधर्मसौक्ष्म्यात्सुभगे विवेक्तुं शक्नोमि ते प्रश्नमिमं यथावत् (Ibid., chap. 89. 59.) ⁴ यो हि प्रश्नं न विनूयाद्धर्मदर्शीसभां गतः । अनृते या फलावाप्तिः तस्याः सोऽर्धं समश्नुते ।

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¹ Bṛhaspati, i. 28-29.

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We have again evidence of an open trial in the court, by the judge and jurors and that in the absence of the king. The subject of the case was the secret murder of a woman in a garden and robbing her of all her jewels in the *Mṛichchakaṭika*.² This is in conformity with the ruling of Yājñavalkya that secret murders should be enquired on evidence.³ Saṃsthānaka, brother-in-law of Pālaka, the ruling chieftain of Ujjain, bore ill-will against the munificent Brahman Chārudatta beloved by Vasantasena, a young courtesan of the city. One evening when the latter was returning home alone as usual, Saṃsthānaka pursued her to the garden, stripped her of all her jewels and even strangled her. As this was known to his servant, Saṃsthānaka had him enchained. The next morning he appeared before the hall of justice and preferred a plaint against Chārudatta accusing him of the murder and robbery of Vasantasena. The *adhikaraṇika* (judge), the *śreṣṭin* (provost), the *kāyasta* (the recorder or scribe) formed the jury of the court. In the course of the trial they sent for the mother of the courtesan lady as well as Chārudatta by summons. With

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² Acts ix. and x.

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³ अविज्ञातहतस्याशु कलहं सुतबान्धवाः । प्रष्टव्या योषितश्चास्य परपुंसिरताः पृथक् ॥ स्त्रोद्रव्यवृत्तिकामा वा केन वायं गतःसह । मृत्यदेशसमासन्नं पृच्छेद्वापि जनं शनैः ॥ (Yāj., ii. 283-284.)

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यः पुनर्वितथं ब्रूयाद्धर्मदर्शी सभांगतः ।
अनृतस्य फलं कृत्स्नं स प्राप्नोतीति निश्चयः ॥
(*Sabhā Parvan*, chap. 90. 65-66.)

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great fear both of them entered the court and were examined and cross-examined. The evidence of both did not betoken guilt on their part. But the entry of Maitreya, the friend of Chārudatta, with a casket of jewels belonging to Vasantasena and the careless dropping of the same in the hall were eloquent proof of the guilt, and hence Chārudatta was declared a culprit though no confession of crime was elicited from him. He was placed under the charge of the king's servants who took the verdict and the recommendation of the jury to the king for his final decision and judgment. Then the jury addressed Chārudatta thus: निर्णये वयं प्रमाणम् । शेषे तु राजा ॥ Their recommendation was that ‘this is the Brahman charged with the murder of a woman and theft of her jewels. According to Manu there is no punishment of death for a Brahman but only banishment and that without prejudice to his property.’¹

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¹ Cf. Bṛhaspati, chap. xxvii. 11 : Śānti Parvan, lv. 22-31. ² According to the sage Nārada defective justice is rendered through three causes; greed of wealth, sheer ignorance, and pride. Here pride operated (Sabhā., chap. v. 95.).

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This recommendation of the jury was set at nought by the cruel king who without further consideration ordered his impalement, so that there could be no such atrocity in future. This cruel and unjust order of the king born of his pride was resented by one and all including the womenfolk.² The innocent Chārudatta was saved by Vasantasena herself, who, escaping from the garden, appeared on the scene and spoke of Samsthānaka as the real criminal. The mob became infuriated, had the king killed in the public hall of sacrifice, and asked the executioners to do away with the cruel culprit. But he fell on his knees before Chārudatta for mercy and for life, which were granted magnanimously.

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Here there are two or three chief points which we must not fail to take note of. The king was an autocrat guided by vicious councillors who had no regard for established law and usage. Yājñavalkya rules that the king should mete out punishment according to the nature of the crime, strength of the case, place, time, and so on.¹ Secondly this autocracy paid a heavy price by the whole ruling family being cut off from the reigning line. Thirdly in spite of tyranny there was trial to elicit the truth and there was no application of torture. Fourthly executioners themselves had a sense of justice. One of them actually delayed the time of the execution which alone saved the life of the innocent Chārudatta. For one of the executioners stated it as the advice of his late father to make reasonable delay and give the culprit a lucky chance of escape. For some munificent gentleman might come forward to effect his liberty by paying a compensation price, which is the vārya or vanadeya of the Vedic literature. Or the king may suddenly beget a son and consequently there would be a reversion of the original order. Or again the royal elephant may suddenly turn frantic and in the panic he could escape with life; or there may be a change of ruling dynasty and royal clemency would give him freedom.² What we have to gather from this is that even in autocratic states the administration of justice had developed itself on such healthy lines that open trial by the jury was the consequence. But it might be that partiality was exhibited now and then. And in this particular case Chārudatta expresses his dissatisfaction with the process of investigation and pleads for the test by any of the ordeals, water, fire, poison, or balance.¹ To these Yājñavalkya adds koṣa. This indicates beyond doubt that the ordeals died hard in the Hindu administration, and continued to exist side by side with the process of trial by jury which took its place by slow but sure degrees.²

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¹ ज्ञात्वापराधं देशज्ञकालं बलमथापि वा । वयः कम्म्र्च वित्तज्ञ दण्डं दण्ड्येषु पातयेत् ॥ (Yāj., i. 368.)

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² कदापि कोऽपि साधुरर्थं दत्वा वध्यं मोचयति । कदापि राज्ञः पुत्रो भवति, तेन वृद्धिमहोत्सवेन सर्ववध्यानां मोक्षो भवति । कदापि हस्ती बन्धं खण्डयति, तेन संभ्रमेण वध्यो मुक्तो भवति । कदापि राजपरिवर्तौ भवति, तेन सर्ववध्यानां मोक्षो भवति । (P. 243, Act. x.)

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The Agni Purāṇa lays down that these ordeals are only for high treason or causes involving big sums above 1,000 paṇas. Otherwise oaths were enough to establish one's innocence.³ This is in line with Yājñavalkya's ruling. The practical way of testing by each of these ordeals is explained in the subsequent passages.⁴ And this trial by jury seems to have been limited to criminal causes only. That torture was not the common process of eliciting a confession even before Kauṭalya is evident from the Dharmasūtra of Āpastamba.⁵ He definitely

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¹ P. 226, Act ix, St. 43. ² There is also mention of a trial in Kālidāsa's Śakuntala presided over by Piśuna, evidently the chief judge.

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तुलाग्नयापो विषं कोषे दिव्यानीहा विशुद्धये ।
महाभियोगेष्वेतानि शीर्षस्थेऽभियोक्तरि ॥ (Yāj., ii. 97.)

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³ Chap. 255. 28-31; cf. Yāj., ii. 100-15 and Manu, viii. 114-115. ⁴ Ibid., 32-48; cf. S. T. R., 8. 1. 114-34. ⁵

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इतरेषां वर्णानां प्राणविप्रयोगात्समवेक्ष्य तेषां कर्माणि राजा दण्डं
प्रणयेत् ॥ १ ॥
न च संदेहे दण्डं कुर्यात् ॥ २ ॥
सुविचितं विचित्या दैवप्रश्नभ्यो राजा दण्डाय प्रतिपद्येत ॥ ३ ॥
एवं वृत्तो राजोभौ लोकावभिजयाति ॥ ४ ॥ (ii. 5-11, 1-4.)

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rules that the king shall not punish the offenders on mere suspicion. In doubtful cases he should employ ordeals, inference and the like means. And the very fact that a comparitively later work like the *Rāja-taraṅgiṇī* speaks of the public trial of causes shows how the jury system developed itself in ancient India, without any break whatsoever.¹ This is further corroborated by inscriptional evidence. The rock edict inscriptions of Aśoka at Dhauli and Jaugada in Kalinga warns the officials against inflicting arbitrary imprisonment or torture.²

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¹ *Rājatarangiṇī*, description of the trial of a sorcerer accused of murder (Canto iv. 92-105). See also Śukra, IV. v. 12-13.

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² *Ind. Ant.*, vol. xix (1890), pp. 83-96.

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