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The Mauryan Polity c8.s4: Sec. iv. Administration of Justice

The Mauryan Polity c8.s4

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Sec. iv. Administration of Justice

Heads of Law

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Mention has already been made of the peculiar concept of Indian Jurisprudence that the law of the land was the *de facto* if not *de jure* sovereign of the land, and that the monarch of the kingdom was bound by it and should act according to it.¹ In other words, the ancient Indian king was no law-maker. His function was to administer the law already established. This is one of the powerful weapons by which the people were able to check and curb the arbitrary powers of the king. We shall now examine what constituted this law or in clear language, what were the different heads of law. This is not the place to discuss the various heads of law as adumbrated in the *Dharmasūtras* or *Dharmaśāstras*. Confining ourselves to the contemporary work of the Mauryan epoch, we find that four heads of law are mentioned in the *Arthaśāstra*: *dharma* (to give out what has actually happened), *vyavahāra* (to rest on evidence), *caritra* (customs and precedents), and *rājaśāsana* (royal proclamations).² It may be noted *en passant* that these royal proclamations amounted to promulgation of laws fallen into disuse and not introduction of new laws altogether.

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¹ See above p. 91.

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² Bk. III, ch. 1.

Equity

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Equity (*nyāya* also *dharma-nyāya*) again is given due prominence and in conformity with the law-giver Yājñavalkya, Kauṭalya mentions it as a source of law to be applied, in case the positive law of the *smṛti* cannot properly provide equality of justice. In other words equity came in very handsomely so far as the interpretation of the law was concerned. Perhaps the term *dharmayutena* in the Aśokan inscriptions is another form of *dharmanyāya*.¹ The term 'equity' is not used in the same sense, in which it is used in Roman Law but in the broad sense of supplementing in some cases, or interpreting in other cases, the law of the land. Again it is remarked that in India law was *dharma*. This is no doubt true. But what is more important is that *dharma* alone did not constitute law. There were other heads of law also.

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¹ Pillar E. IV. *Corpus*, p. 123.

Courts of Law

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The *Arthaśāstra* mentions two kinds of law-courts; the *dharmasthīya* or courts where civil law was administered and the *kaṇṭakaśodhana* or the criminal court of law. Kauṭalya devotes two books² to the province of jurisdiction of these two important courts of law. A study of the nature of the cases which came under the purview of the *kaṇṭakaśodhana* court, and an examination of the functions allocated to that department lead us to the conclusion that in addition to its administrative functions, that court acted also as a police court. For, the detection and prevention of crimes as well as the award of corporal and capital punishments rested with it.

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² Bks. III and IV.

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Though it would be interesting to study in detail the cases which came before the *dharmasthīya* court for disposal, still lack of space forbids us an attempt at it. As it is, a passing mention of these cases will itself be of much interest. These may be categorically stated.¹

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¹ For further details see *Hindu Ad. Inst.*, p. 228-ff. See also N. N. Law, *Studies in Hindu Polity*, pp. 119-120.

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1. Contracts of a general nature (vyvahārasthāpana).²

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² Bk. III, ch. 1.

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2. Agreements of service, etc., (samayasyānapākarma).³

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³ Ibid.

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3. Duties and rights of the employer (svāmyadhikāraḥ).

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4. Duties and privileges of the employed (bhṛtakādhikāraḥ).

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5. Questions concerning the slaves (dāsakalpaḥ).

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6. All relating to loans (ṛṇādānam).

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7. Deposits of different kinds (aupanidhikam).

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8. Sales and pre-emption (vikrītakrītānuśayam).

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9. Presents and gifts (dattasyānapākarma).

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10. Highway robbery (sāhasa).

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11. Assault (daṇḍapāruṣyam).

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12. Cases relating to defamation (vākpāruṣyam).

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13. Questions concerning gambling (dyūtasamāhvayam).

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14. Irregular sale of property (asvāmivikrayaḥ).

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15. The right of possession (svasvāmi sambandha).

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16. Formation of boundaries of lands and settling of disputes arising from them (sīmāvivāda, maryādasthāpanam).

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17. Cases regarding the immovables (vāstukam).

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18. Destruction of crops, pastures, roads, etc. (vivitakṣetrapatha hiṃsā).

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19. Laws of marriage (vivāhadharma, strī dharma-kalpaḥ).

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20. Questions relating to co-operative enterprise (sambhūyasamuthānam).

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21. Cases of inheritance and succession (dāya-vibhāgaḥ, dāyakarma).

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22. Rules of procedure (vivādapadanibandaḥ).

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*Jurisdiction of the Criminal Law-Court*

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The criminal law-court on the other hand dealt with the following cases¹:

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¹ the whole of Bk. IV.

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1. Protection of artizans and merchants (kārmi-kavaidehakarakṣaṇam).

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2. Protection and regulation of the claims of labour.²

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² Bk. IV, ch. 2.

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3. Protection of the prostitutes (gūḍhājīvinām rakṣā).

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4. Tracing criminals through spies (māṇava-prakāśanam).

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5. Arresting the suspicious or real culprits (saṅkārūpakarmābhigraha).

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6. Post-mortem examination (āśumṛtakaparīkṣa).

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7. Maintaining discipline in the different departments of the State (sarvādhikaraṇarakṣaṇam).

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8. Punishment for mutilation (ekāṅgavadhaniṣkrayaḥ).

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9. Capital punishment with or without torture (śuddhaścitraśca daṇḍakalpaḥ).

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10. Ravishment of immature girls (kanyāprakarma).

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11. Examination by word of mouth and action thereon (vākyakarmānuyoga).

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12. Other criminal offences (aticāra-daṇḍaḥ).

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A survey of the cases that came within the purview of the criminal law-court shows the combination of police functions with magisterial duties. Much of the police control was by means of informants who sometimes acted as agents provocateurs. One of the functions assigned to these informants was the shadowing of the suspected, and in this respect it resembles that of the modern secret police organisation. The procedure prescribed for investigating cases of theft and homicide¹ is a test to prove the perfect organisation of the judicial department. In regard to suicide committed by men or women, equal punishment was awarded. The idea was to check such a heinous offence as far as possible. Neither burial nor cremation was allowed. The bodies of persons who committed suicide were exposed on thoroughfares by having them drawn on public roads by caṇḍālas and were cast away uncared for.² Thus the seemingly arbitrary punishment was to put down such crimes as they would otherwise become numerous.

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¹ Bk. IV, ch. 4 and 5.

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² ghātayetsvayamātmānam strī vā pāpena mohitā|| rajjunā rājamārge tām caṇḍālenāpakarṣayet| na śmaśānavidhiṣeṣām na sambandhikriyāstathā|| bandhuṣeṣām tu yaḥ kuryātpretakāryakriyāvidhim| tadgatim sa caretpaścāt svajanādvā pramucyate||

Capital punishment

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Punishments were of different kinds: fines, imprisonment, mutilation and death penalty.¹ It is often remarked that the Kauṭaliya does not mention the method of trial by jury but recommends torture to the suspected persons to elicit confession of guilt.² The statement is of course misleading, and is the result of a wrong interpretation of the Arthaśāstra texts. The chapter entitled vākyakarmānuyoga³ means ‘examination on evidence and action to be taken thereon.’

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¹ Bk. IV, ch. 2. See R.E. V, Corpus, p. 19; IV Pillar Edict, Corpus, p. 123.

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² Early History of Bengal, p. 109.

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³ Bk. IV, ch. 8. Shāma Śāstri translates: ‘Trial and torture to elicit confession’; Monahan ‘the questioning of an accused person by word and by act’.

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The technical sense in which the word karma is used, is ‘examination’ or ‘cross-examination’ and does not mean ‘torture’.⁴

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⁴ The technical term for ‘torture’ is parikleśa the palikleśa of Aśokan inscriptions. Hultzsch who takes ‘karman’ in the Kauṭaliya in the sense of ‘torture’ is obliged to interpret parikleśa—‘harsh treatment’: The inscription runs thus: bandhanam va paliklesam (Corpus, p. 93) meaning imprisonment or torture. Parikleśa cannot be merely ‘harsh treatment’ for two reasons: First imprisonment itself is harsh treatment; secondly parikleśa in the sense of ‘torture’ to which Senart and Lüders agreed, is found used in the Arthaśāstra (IV-9). According to the latter authority the superintendent of the jail was liable to be punished if he would imprison persons without assigning reasons, torture them and kill them. See also R.E. V where imprisonment, death and torture seem separately referred to in the terms bandhana, vadha, and palibodha, bandhana—badhasa paṭvidhanay (e) apalibodhaye mo(ksaye) ayi anuba. (Corpus, p. 56.) See also Mookerjee’s Aśoka, p. 143, note 2.

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The interpretation of the title of the chapter goes a long way in settling an important issue. A careful study of the chapter in the light of the above interpretation goes to prove that only avowed culprits were ubjected to torture and not the ‘suspected’.¹ Kauṭalya no doubt does not mention the ordeals of fire, water, etc., recommended in the law-codes. These ordeals were in vogue for long after Kauṭalya. Hence the author of the *Arthaśāstra* could not be charged with ignorance of that age-long institution. What is therefore reasonable to infer is that Kauṭalya regarded these ordeals as questionable expedients, the application of which was restricted to cases involving more than a thousand *paṇas*² and introduces the more healthy method of judicial enquiry, thus sowing the seeds of the modern jury system. That punishment was meted out only after the guilt had been proved is evident from the following, among other statements of the Kauṭalīya. It is said that the guilt of a suspected person should be proved by the production of such evidence as the instruments used in committing the crime, accomplices and abettors, the stolen articles and persons concerned in their sale or purchase. In the absence of such evidence the accused should be acquitted.”³

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¹ See also *Proceedings of Third Or. Conf.*, pp. 628-29; *Hindu Adm. Inst.* p. 236-ff.

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² Yāj. II. 101.

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³ śaṅkāniṣpannamupakaraṇamantrisahāyarūpavaiyāvṛtyakarānniṣ-pādayet| karmaṇaśca pradeśadravyādānāṃśavibhāgaiḥ pratisamānayet| eteṣāṃ kāraṇānām anabhisandhāne vipralapantamacoraṃ vidyāt|

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Here there is no mention of torture to elicit confession of a crime. On the other hand there is evidence to show that the judge was empowered to act on the circumstantial evidence which any judicial enquiry must take into account. This is corroborated by another equally important statement—

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*āptadoṣam karma kārayet* meaning that action was to be taken only in case where guilt had been proved, and not in doubtful cases. Thus torture is recommended as a kind of punishment for proved cases.

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The nature of capital punishments in practice in the 4th century B.C. in India and the principle on which such punishments were inflicted are clearly furnished in the chapter on *śuddhścitraścadaṇḍakalpaḥ* of the *Kauṭaliya*.¹ Death-penalty was not the rule. Two classes of criminals are distinguished—those who are cruel in their offences, and those who are not cruel. Death-penalty without torture to the former is recommended. Even in this prescription the *Arthaśāstra* distinctly mentions that this ruling had the authority of the *śāstras* behind.²

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¹ Bk. IV, ch. 11.

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² ete śāstreṣvanugatāḥ kleśadaṇḍo mahātmanām| akliṣṭānām tu pāpānām dharmyaḥ śuddhavadhassmṛtaḥ||

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Again in inflicting banishment to the Brahman culprits, Kauṭalya shows himself a follower of the *Dharmaśāstras*. Thus it is seen that this, as in other respects, Kauṭalya has not broken any fresh ground but has consistently adopted the basic principles of the *Dharmaśāstras*.

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That there was judicial trial for criminal suspects and that judgment was passed on the strength of the evidence is obvious from the Fourth Pillar Edict of Aśoka. Though one of the punishments involved death-penalty, still a grace (*yote*) of three days was granted to those on whom the sentence of death had been passed.³

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³ ava ite pi cha me āvuti baṃdhana-badhānaṃ munisānaṃ til(i)ta-daṃḍānaṃ pata-vadhānaṃ timni divasā(n)i me yote dimne|—Corpus, p. 123.

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There is an exaggerated statement in the *Aśokavadāna* where Aśoka is said to have totally abolished capital punishment on account of his repentance for having caused death to a monk who was his own unfortunate brother.¹ How this statement has no basis in fact is proved by the inscriptions themselves where the sentence of death is recognized as the punishment for extreme forms of criminal offence. But Aśoka was prepared to mitigate the severity of punishment provided somebody interested in the culprit would get the sentence revoked by satisfying the judicial officers concerned as to their innocence. This reminds us of Kauṭalya’s advocacy of the release of prisoners on payment of proper compensation price.²

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¹ *See Divyāvadāna*, *aśokavadāna* section.

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² *puṇyaśīḷāssamayānubadhā vā doṣaṇiṣkrayam dadyuḥ*—Bk. II.36.

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Referring to the case of those on whose account no body was forthcoming to effect their rescue, there was no escaping the judgment. Hence they are advised to act in such a way as to win enjoyment in heaven.³

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³ *Corpus*, p. 123.

Other Courts

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In addition to the High Court of Judicature, which we have examined above, there were a number of local courts in the provinces and districts. They were generally located in the chief towns of the different administrative districts: janapadasandhi, saṁgrahaṇa, droṇamukha, and sthānīya. Three judges and three commissioners conducted the cases in each of these courts.⁴

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⁴ *dharmasthāstrayastryomātyā janapadasandhisaṁgrahadroṇamukhasthānīyeṣu vyāvahārikānarthān kuryuḥ* —*Ar. Śās.*, Bk. III, ch. 1.

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In addition to these, the *Arthaśāstra* recognises the authority of the village courts which were self-sufficing and independent of imperial control. Here the *grāmavṛddhas* or the village elders, decided the cases arising in the village. They had magisterial functions which were binding on the villagers.¹ The State felt called upon to accept as valid every local usage, customs of the caste, community, clan, and family, every bye-law of the corporate bodies, the guilds and such other organised non-political communities.²

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¹ Bk. III, ch. 9.

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² sve sve tu varge deśe kāle ca svakaraṇakṛtāḥ sampūrṇacārāśśuddhadeśādṛṣṭarūpa-lakṣaṇa pramāṇaguṇāḥ sarvavyavahārāḥ siddhyeyuḥ|—Bk. III, ch. 1. cp. Anc. Ind. Polity, p. 54.

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Thus there was a gradation of the Courts of Justice ranging from the local courts of the village community to the supreme courts of judicature. The local usages and customs were respected by the central government and an appeal lay from the lower court to the higher court. Inasmuch as the king received complaints from his subjects and dispensed justice according to the nature and urgency of the case he with his councillors represented the highest court of appeal and also acted as the court with original jurisdiction over certain cases.

Legal Procedure

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It has been already mentioned that the *Arthaśāstra* mentions four bases of law in the order of their increasing importance: *dharma*, *vyavahāra*, *saṃsthā*, and *rājaśāsana*. Every case was decided on its merits. Generally honest and truthful witnesses were let in to depose. *Śrotriyas*, the king, members of the interested party, degraded criminals, etc., were ineligible to depose as witnesses.¹ Only those who came of an honourable family and whose character had been put to test were eligible. These took the oath in the usual procedure before they were cited as witnesses.² The court allowed them travelling and halting allowances, which appear to have been met by the defeated party.³

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¹ Ar. Śās., Bk. III, ch. 2.

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² Ibid.

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³ puruṣabhṛtiraṣṭāṅgaḥ| pathi bhaktamarthaviśeṣataḥ| tadubhayam niyamyo dadyāt|—Ar. Śās., Bk. III, ch. 1.

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Cross-examination was a feature of the legal procedure. So far as the criminal cases were concerned the suspected was not to be apprehended after the lapse of three days from the day on which the crime was committed. The suspected was arrested and kept in police custody (caraka) until the next day when he was tried. That the Judge should not decide a case on mere circumstantial evidence is the opinion of Kauṭalya, as he cites the case of Māṇḍavya where injustice was done, relying, as the judge did, on the strength of such circumstantial evidences.

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The following court offences (paroktadoṣa) among others are mentioned by the Kauṭalīya, as punishable by the Court whether committed by the defendant’s party or the plaintiff’s party.⁴ These are:

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⁴ Ar. Śās., Bk. III, ch. 1.

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(1) Evading a straight answer to the question.
(2) Inconsistent statements.
(3) Seeking advice from undesirable sources.
(4) Not continuously answering the question at issue.
(5) Adducing irrelevant points.

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(6) Contradicting the statements given by his own witnesses.

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(7) Talking in secret to the witnesses without obtaining permission from the court.

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(8) Meeting the arguments of defence on the same day.

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(9) Failure to defend or to prove one's case within the time fixed for the purpose.

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(10) Unwarranted statements.

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The fines for these offences are said to be pañcabandha and daśabandha, the fifth and tenth parts of the sums sued for.¹ The Arthaśāstra rules that creditors of high social status, guilty of parokta, shall pay a fine, equal to one-tenth of the amount sued for, and creditors of lower status one-fifth of the amount.²

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¹ Bk. III, ch. 11. Cp. Vijñāneśvara's commentary on verse 171, (II) of Yājñavalkya: Also Śrīmūlam commentary, Vol. II, p. 68.

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² See for details Hindu Ad. Inst., p. 258.

The judge and other court officials

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The judge or the dharmādhikārin was the chief official of the High Court of Justice.³ In this connection the dharmasthas, amātyas and pradeṣṭāraḥ are mentioned. The dharmasthas, from the very nature of the term, were men versed in the law of the land and of unimpeachable character. They were judges who adjudicated cases and dispensed justice on the nature of the evidence tendered by the witnesses on examination. These were probably assisted by a panel of counsel who went by the name of amātyas. The pradeṣṭāraḥ were commissioners who occupied somewhat lower status, and answer perhaps to our modern District Judges and District Magistrates. One feature of the administration was to entrust dispensation of justice not to a single judge or commissioner but a panel of judges or commissioners. The usual number was three. When the Court was proceeding with the case, a class of officials known as *lekhakas*, literally writers, took down the evidence tendered by both the parties of the plaintiff and the defendant and presented it for the judge to decide the case on its merits. If the judge on the other hand misconducted himself and did not do proper justice, he was also punished like any other citizen. It is evident from the chapter entitled *sarvādhikāra-ṇarakṣaṇam* that the judge guilty of offence was tried in the Samāhartā’s court, the Samāhartā being assisted by the Pradeṣṭāra officials.¹ Perhaps this reminds us of the Administrative law-court of France (De Droit Administratif) instituted for the trial of officials. Thus as in modern France there were two sets of courts (*a*) ordinary courts for the trial of private individuals; and (*b*) administrative courts for the trial of officials.² The offences punishable on the part of a judge are (*a*) offending the contending parties for no reason whatsoever, (*b*) causing insult to the parties by raising irrelevant points (*c*) tutoring witnesses, (*d*) showing partiality to either party (*e*) or otherwise infringing the rights of the parties concerned. The punishment was in the first instance fines, and then, dismissal, if the judge was found guilty of the same for a second time.³

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³ Ar. Śās., Bk. IV, ch. 9.

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¹ Ibid.

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² Gilchrist, *Principles of Political Science*, p. 319, (Third ed.).

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³ punaraparādhe dviguṇam sthānātvyaparopaṇam ca.

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The officers of the jail were known as *bandhanāgārādhyakṣa* and *caraka*. The former was the Superintendent of the Jail and the latter was one of his assistants. If these officers were found charged with the ill-treatment of the prisoners or with violating the rule of law they were also punished. Some of the offences punishable were the infliction of punishments more severe than what was due, ill-treatment of the prisoners in the matter of rations and bedding, transfer of prisoners from one jail to another without assigning sufficient reason, and illicit intercourse with female prisoners. From the duties expected of the *dharmamahāmātras* of Aśoka's Edicts, it would appear that these officials correspond to the *dharmasthas* or judges of the civil and criminal courts mentioned by the *Kauṭalīya*. The suffix *mahāmātra* like the term *adhyakṣa* in the *Arthaśāstra* is a technical term for an official. According to Aśoka, these officials were to be engaged with the employers and employees, and were employed for taking steps against unjust imprisonment, and the release on insufficient grounds of those already imprisoned. They were also to see that the people did not molest one another. Some of these were the functions of the *dharmasthīya* court of the *Kauṭalīya*. At the least the *dharmamahāmātras* of the Edicts can be compared to the Superintendents of the Jails found mentioned in the *Arthaśāstra*. According to Aśoka¹ these dispensers of justice must be impartial as between one citizen and another. All men were equal in the eyes of law, and proper award of punishment not only entitled the judges but also the king whom they represented, to merit heaven.²

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¹ First separate R.E. : Dhauli, Corpus, pp. 93-94. See also *Ind. Ant.* 1890.

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² *viyohala-samatā daṇḍa-samatā*—IV P.E., Corpus, p. 123.

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Elsewhere Aśoka expects these judicial officers to behave towards the people as a father towards his son. He realises that this is in a majority of cases an ideal rather than the actual. For, says he, ‘some single person only learns this (and) even he (only) a portion (but) not the whole’.¹ On the negative side Aśoka expects his judicial officers to be bereft of unhealthy dispositions like envy, anger, cruelty, hurry, want of application, laziness and fatigue. In his opinion the possession of some of these dispositions would lead to maladministration of justice, and this would in the long run retard the progress of the State.²

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¹ First separate R.E., Dhauli.

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² Corpus, p. 95.

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It is noteworthy that the Kauṭalīya mentions some of these as tending to mar the administration of justice, and provides for the punishment of such judges as those who failed to discharge their duties properly.³ It was the sincere wish of the emperor that none of his subjects suffered from unjust imprisonment or undeserved capital punishment. To see that his officers fulfilled their duties impartially and justly, certain commissioners were sent out from the headquarters to watch their conduct and report to the authorities at the capital.⁴ This reminds us of the Kauṭalīyan prescription to set members of the Intelligence department over these officials among others. Again, as under every civilised government the Mauryan kings gave a general amnesty to prisoners on certain occasions. According to the Kauṭalīya the young, old, diseased and destitute prisoners had to be set free on the king’s birthday and on the full moon days. Prisoners were also released on the acquisition of a new territory, on the anointment of the crown prince, and on the birth of a son to the king.¹

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³ Ibid.

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⁴ Corpus, p. 95.

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⁵ Corpus, p. 93.

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¹ bandhanāgāre ca bālavṛddhavyā dhitānāthānām ca jātanakṣaṭrapaurṇamāsīṣu visargaḥ . . . . apūrvadeśādhigame yuvarājābhiṣecane| putrajanmani vā mokṣo bandhanasya vidhīyate|| Bk. II, ch. 36.

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This is confirmed by the Aśokan inscriptions especially by the Fifth Rock Edict. Some portion of the Girnār Edict is unfortunately not traceable while the Mānsehrā gives the following text:—

c8.s4.t7.18

bhaṭamayeṣu bramaṇibhyeṣu anatheṣu vudhreshu hida-su(khaye) dharma-yuta-apalibodhaye viya(p)uṭa te bandhana-badha(sa) paṭivi(dhanay)e apalibodhaye mokshay(e) (cha iyaṁ) anubadha p(r)aja t(i) va kaṭrabhikara ti va mahalake ti va viyapraṭa te *Corpus*, p. 75; see also p. 32, Kālsī version.

c8.s4.t7.19

Perhaps a new interpretation of these lines is required in the light of the *Arthaśastra* texts. It is evident that Aśoka was familiar with the ruling of the *Arthaśastra* in this particular instance as in others. For Aśoka speaks of as much as twenty-five jail deliveries effected by him in the course of 26 years since his anointment to the throne.² Yet another healthy regulation relating to the jail was the frequent visits to the prisoners made by the authorities concerned once a day, sometimes once in five days, to enquire into their conditions in regard to their specific work and health, and some-

c8.s4.t7.20

² Pillar E. V. *Corpus*, p. 126.

c8.s4.t7.21

yāva saduvīsati vasa-abhisitena me etāye amtalikāye paṁnavāsati bandhana-mokhāni kaṭāni.

c8.s4.t7.22

times grant them money perhaps for their personal upkeep. This is evident from the following verse:—

c8.s4.t7.23

divase pañcarātre vā bandhanasthān viśodhayet|
karmaṇa kāyadaṇḍeṇa hiraṇyānugrahena vā||
—II, 36.

c8.s4.t7.24

The translation of this śloka by Shāma Śāstri is faulty. It runs as follows: ‘Once in a day or once in five nights, jails may be emptied of prisoners in consideration of the work they have done, or of whipping inflicted upon them, or of an adequate ransom paid by them in gold.’¹

c8.s4.t7.25

¹ P. 179. Trans. (Second ed).

Linked texts (5)