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Hindu Polity: A Constitutional History of India in Hindu Times c19: Chapter XI: Procedure of Deliberation in Hindu Republics

Hindu Polity: A Constitutional History of India in Hindu Times c19

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English

Chapter XI: Procedure of Deliberation in Hindu Republics

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§ 104. To come nearer these republics, to come nearer their breathing life, let us try to steal a peep into their deliberations. If the curtain of the past be too heavy to be lifted, let us be satisfied only with an indirect view.

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We know from the Buddhist Sūtras and the references noticed above that matters of state were discussed in the assembly of our republics. There is one single direct reference to the technical aspect of these deliberations. That one reference is of highest importance, for it puts us on the right track. The capital of the Śākyas was besieged by the king of Kosala. It is recorded that while the question of surrender was being discussed, opinion was divided The Śākyas therefore decided to find out the **opinion of the majority.** And **voting** was done on the subject.

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'So the king sent a messenger to the S'ākyas, saying, 'Sirs, although I have no fondness for you, yet I have no hatred against you. It is all over; so open your 'gates quickly.' Then the S'ākyas said, 'Let us all assemble and deliberate whether we shall open the gates.' When they had assembled, some said, 'Open them,' others advised not doing so. Some said, 'As there are various opinions, we will find out the opinion of the 'majority.' So they set about **voting on the subject."**¹

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¹ Rockhill, *The Life of the Buddha*, pp. 118-9.

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The voting resulted in favour of the proposed capitulation and the city capitulated. Now, where can we get greater details of this procedure of voting and majority? We have seen that the Buddhist Saṃgha was copied from the political Saṃgha. We have also seen that the example of counting votes in the Gaṇa is directly cited by the Buddha as a guide. Therefore, if we can get at the procedure of either of the two, the political or the religious Saṃgha, we would be having a picture of the common type. The institutions were contemporary, and in ordinary course, technicalities of procedure of deliberations would be common to popular bodies. But in the case of the Buddhist Saṃgha its foundation is known and its borrowing from the political Saṃgha is clear. The procedure of the Buddhist Saṃgha would be nearer the procedure of the parent Saṃgha, the Republic. If we eliminate the religious modifications, we can restore the common type. For this I reproduce the procedure of the religious Saṃgha, the very rules of which show that the terms and proceedings had already become technical before they were introduced by the Great Teacher into his Brotherhood. It will give us the details of the procedure of voting and majority.

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§ 104. All the members who had the right to be present, were present in the assembly on seats, placed under the direction of a special officer appointed for the purpose:

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"Now at the time a Bhikkhu named Ajita, of ten "years' standing, was the reciter of the Pātimokkha "to the Saṃgha. Him did the Saṃgha appoint as seat-"regulator (*āsanapaññāpaka*, i.e., āsanaprajñāpaka) to the "Thera Bhikkhus."¹

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¹ Account of the Congress of Vesālī, *Chullavagga*, XII, 2. 7. (*Vinaya*, *S. B. E.*, XX., 408).

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§ 105. Deliberations were initiated with a motion in these terms:

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"Let the venerable Saṃgha hear me." "If the time seem
"meet to the Saṃgha, let the Saṃgha do...

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"This is the motion (*ñatti*, i e., *Jñapti*, 'notice')."

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After this the mover moved the matter in the form of a resolution (Pratijñā) to be adopted by the Saṁgha. All those who approved of the resolution were asked to remain silent, and those who would not approve were required to speak. In some cases the resolution was repeated thrice and then, if the assembly remained silent, it was declared as carried, and the party affected was formally informed of the resolution. I give below some instances from the Vinaya Piṭaka to illustrate the above description

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Here is a resolution moved at the instance of the Buddha himself:

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“Let the venerable Saṁgha hear me. “This Bhikkhu Uvāla being examined in the midst of the “Saṁgha with an offence, when he has denied it then confesses “it, when he has confessed it then denies it, makes counter-“charges, and speaks lies which he knows to be such. If “the time seem meet to the Saṁgha, let “the Saṁgha carry out the Tassa-pāpiyyasikā-“kamma against the Bhikkhu Uvāla. This is the “motion.

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“Let the venerable Saṁgha hear me. This “Bhikkhu Uvāla *(&c., as before).* The Saṁgha carries out the “Tassa-pāpiyyasikā-kamma against Uvāla the “Bhikkhu. Whosoever of the venerable ones approves of the “Tassa-pāpiyyasikā-kamma being carried out against Uvāla “the Bhikkhu, let him keep silence. Whosoever “approves not thereof, let him speak.

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“A second time I say the same thing. “This Bhikkhu Uvāla *(&c., as before, down to)* ‘let him speak.’

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“A third time I say the same thing *(&c., as before, down to)* ‘let him speak.’

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“The Tassa-pāpiyyasikā-kamma has “been carried out by the Saṁgha against

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"Uvāla the Bhikkhu Therefore is it "silent. Thus do I understand."'

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'"Then the Saṃgha carried out the Tassa-pāpiyyasikā-"kamma against Uvāla the Bhikkhu. (4. 12. 4)."

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The following is taken from the account of the Congress of Rājagṛiha, held after the death of the Buddha:

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'"Then the venerable Mahā-Kassapa laid the "resolution before the Saṃgha: 'Let the "'venerable Saṃgha hear me. If the time "'seem meet to the Saṃgha, let the Saṃgha appoint "'that these five hundred Bhikkhus take up their residence "'during the rainy season at Rājagaha, to chant over together "'the Dhamma and the Vinaya, and that no other Bhikkhus go "'up to Rājagaha for the rainy season.' This is the "resolution. Let the venerable Saṃgha "hear. The Saṃgha appoints accordingly. "Whosoever of the venerable ones approves thereof, let "him keep silence. Whosoever approves not thereof, "let him speak. The Saṃgha has appointed "accordingly. Therefore is it silent. "Thus do I understand.'"¹

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¹ *Chullavagga*, 4. 11. 2. Trans. by Oldenberg and Rhys Davids, *Sacred Books of the East*, XX, 29.

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Again,

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"And the venerable Mahā-Kassapa laid the "resolution before the Saṃgha; 'If the "'time seem meet to the Saṃgha, I will "'question Upāli concerning the Vinaya'."²

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² *Chullavagga*, 11. 1. 4.

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"And the venerable Upāli laid the resolution "before the Saṃgha: 'Let the venerable "'Saṃgha hear me. If the time seems meet "'to the Saṃgha, I, when questioned by the venerable "'Maha-Kassapa, will give reply.'"³

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³ *Ibid*, 11 1. 7.

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§ 106. The rule of quorum was strictly observed. In small local societies of Bhuddhist monks a number of twenty formed the quorum to transact all kinds of formal acts.¹

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¹ Mahāvagga, IX, 4. 1. This corresponds to Patañjali's *Viṃśatikaḥ Saṅghaḥ*, *Mahā-bhāshya*, V. 1. 2, II. p. 355 (on V. 1. 59).

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If any business was transacted without the required number of members being present, the act was regarded as invalid and inoperative:

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"If an official act, O Bhikkhus, is performed unlawfully by "an incomplete congregation, it is no real "act and ought not to be performed."²

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² Vinaya, Mahāvagga, IX. 3. 2. अधम्मेन च भिक्खवे वग्गकम्मं कम्मं न च करणीयं ।

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The duty of gathering the minimum number of members was undertaken by one of the members³:

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³ Mahāvagga, III. 6. 6. गणपूरको वा भविस्सामीति ।

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"Or, I will act as the securer-of-the number' "(at the next meeting)." Oldenberg and Rhys Davids have translated the passage (Sacred Books of the East, XIII, p 307) as follows:
"Or, I will help to complete the quorum."

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The Gaṇapūraka was the 'whip' to the assembly for a particular sitting.

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§ 107. The procedure of moving the *ñatti* (*jñapti*) once and the *pratijñā* once was called ñatti-dutiya, the Two-ñatti-procedure; and when they had to be moved thrice, it was called ñatti-chatuttha (the Four-ñatti-procedure). Putting the resolution or pratijñā to the assembly was called Kammavāchā (*Karmavāk*). Now if the ñatti was moved and no Pratijñā formally put, or if the resolution was proclaimed and no ñatti had been moved, the act would be considered invalid. Similarly, an act requiring a ñatti-chatuttha could not be lawful if the motion or the resolution was not moved for the prescribed number of times. Again, the order of the motion and resolution could not be subverted:

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"If one performs, O Bhikkhus, a ñatti-dūtiya act "with one ñatti and does not proclaim a kammavāchā "such an act is unlawful. If one performs, O Bhikkhus, "a ñattidutiya act with two ñattis and "does not ploclaim a kammavāchā..., with one "kammavāchā, and does not propose a ñatti..., "with two kammavāchās, and does not propose a "ñatti, such an act is unlawful. If one performs, O Bhikkhu, a ñatti-chatuttha act with one "ñatti and does not proclaim a kammavāchā, "such an act is unlawful. If one performs, O Bhikkhus, a "ñatti-chatuttha act with two (etc.)'......"

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§ 108. Vote was called Chhanda. *Chhanda* literally means 'free,' and 'freedom' or 'independence.' It connotes that in voting, a member was expressing his free will and choice.

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Votes of the members, who were entitled to be present at the meeting but who owing to some illness or like disability could not attend, were scrupulously collected. An omission to do this vitiated the proceedings. But such votes were rejected if objected to by the assembled members. It was optional with the members to count them but they were expected to be collected usually:

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"If, O Bhikkhus, at a *ñatti-dutiya* act not all the Bhikkhus, ".... entitled to vote are present, but if the *chhanda* "of those who have to declare their *chhanda* has not been "conveyed (to the assembly), and if the Bhikkhus present

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¹ Vinaya *Mahāvagga*, IX, 3, 4-7, 8. Trans. by Rhys Davids and Oldenberg, *S. B. E.*, Vol. XVII, p. 265 ff.

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"protest, such an act is performed by an incomplete "congregation."

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" 'If, O Bhikkhus, at a *ñattidutiya* act as many Bhikkhus as "are entitled to vote, are present, but if the *chhanda* of those "who have to declare their *chhanda* has not been conveyed "(to the assembly), and if the Bhikkhus present protest, such "an act is performed by an incomplete congregation.' "¹

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¹ *S. B. E.* Vol. XVII, p. 266.

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§ 109. If the Saṁgha adopted a resolution unanimously, the question of voting did not arise; but if a matter entailed a division in the opinion of the members, speeches were made and the Procedure-of-Majority was observed. The opinion of the greater number (*bahutara*) decided the matter. The procedure is called *Ye-bhuyyasikaṁ* in Pali. The Sanskrit restoration would be Ye-bhūyasiyakam, 'Those(who-were)most-Procedure.' The voting was carried on with the help of voting-tickets which were coloured. The tickets were called Śalākās or pins² and the voting was called the pin-taking (śalākā-grahaṇa). There was a Teller, Śalākā-grāhaka—'taker-of-the-pins,' appointed by the whole Saṁgha who explained the significance of the colours and took the vote either secretly or openly.

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² We gather from a Chinese record that these tickets were of wood.

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"A Bhikkhu who shall be possessed of five qualifications "shall be appointed as taker of the voting-tickets, "one who does not walk in partiality, one who does not walk "in malice, one who does not walk in folly,... walk in fear, one "who knows what (votes) have been taken and what have not "been taken.

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" 'And thus shall he be appointed

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" 'First the Bhikkhu is to be requested (whether he "will undertake the office). Then some able and "discreet Bhikkhu is to bring the matter before the Samgha saying:

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" 'Let the venerable Samgha hear me.

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" 'If the time seem meet to the Samgha, let the Samgha 'appoint a Bhikkhu of such and such a name as taker of the 'voting-tickets (etc.).....'¹

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¹ *Chullavagga*, IV, 9, 5, *S. B. E.* XX, p. 25.

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"By that Bhikkhu, the taker of voting tickets, are the 'votes to be collected. And according as the 'larger number² of the Bhikkhus who 'are guided by the Dhamma shall speak, 'so shall the case be decided."

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² The odd number 3) of the Sabhā (jury) who are required to sit with the Judge under Manu, VIII, 10, points to the rule of majority. It is clearly enjoined in the Artha-Sāstra, with regard to the decision of land-disputes by a jury of neighbours. 'Land disputes are to be decided by village-elders of the neighbourhood. If there be a 'division of opinion among them, the decision to prevail is of the honest majority': क्षेत्रविवादं सामन्तग्रामवृद्धाः कुर्युः। तेषां द्वैधीभावे यतः बहवः शुचयोऽनुमता वा ततो नियच्छेयुः॥ Compare also the jury of 7, 5 or 3 in the *Sukra-nīti*, IV, 26.

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"I enjoin upon you, Bhikkhus, three ways of taking votes, 'in order to appease such Bhikkhus—the secret 'method, *Gūḷhakam*, the whispering 'method, *Sakaṇṇa-jappakam*, and the open 'method, *Vivaṭakam*. And how, O Bhikkhus, is 'the secret method of taking votes? The Bhikkhu who 'is the teller of the votes is to make the voting-tickets of 'different colours, and as each Bhikkhu comes up to him he 'is to say to him thus: 'This is the ticket for 'the man of such an opinion, this the ticket 'for the man of such an opinion. Take whichever you like.' 'When he has chosen (he is to add), 'Do not show it 'to anybody.' "³

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³ *Chullavagga*, IV, 14, 24; *S. B. E.*, XX, p. 54; 26, p. 56.

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§ 110. Sometime to escape many "pointless speeches" the right of deliberation on a matter was delegated to an appointed committee who decided the question amongst themselves and then communicated their decision to the Saṃgha. If the committee could not come to a decision, 'the custody of the case,' 'remained in the hands of the Saṃgha' who decided it according to the Procedure-of-Majority.

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"If, O Bhikkhus, whilst the case is being enquired into by "those Bhikkhus, pointless (*anaggāni*) speeches are brought "forth, and the sense of any single utterance is not clear, I "enjoin upon you, O Bhikkhus, to settle the case by "referring it (to a jury or commission)."¹

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¹ *Chullavagga*, 4. IV. 19, (*Ubbāhikā* = Skt., *Udvāhikā*).

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"And thus, O Bhikkhus, is he to be appointed. First, the "Bhikkhu should be asked (whether he be willing to undertake "the office). Then some discreet and able Bhikkhu should "address the Saṃgha thus:

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" 'May the venerable Saṃgha hear me. Whilst this case was " 'being enquired into, pointless speeches were brought forth " 'amongst us, and the sense of no single utterance was clear. " 'If the time seem meet to the venerable Saṃgha, let it appoint " 'Bhikkhus of such and such a name on a committee. This is " 'the motion,' etc."²

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² *Chullavagga*, 4. IV. 20.

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"If those Bhikkhus, O Bhikkhus, are not able by the "committee to settle that case, those Bhikkhus, O Bhikkhus, "ought to hand over the case to the Saṃgha, saying, 'We, Sirs, " 'are not able by a committee to settle " 'this case, let the Saṃgha settle it.'

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"I enjoin upon you, O Bhikkhus, to settle such a case by "vote of the majority."³

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³ *Chullavagga* 5. IV. 24.

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The same principle operated when a matter was referred to a larger body:

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"But if you, sirs, should not be able to do so, then will we ourselves retain the custody of the case."⁴

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⁴ *Chullavagga*, 4. IV. 18.

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Again: "Then the Saṁgha met together with the intention "of enquiring into this legal question. But while they were "enquiring into it, both was much pointless speaking brought "forth and also the sense in no single speech was clear. Then "the venerable Revata laid a resolution before the Saṁgha:

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" '.........'If it seems meet to the Saṁgha, let the Saṁgha " 'settle this legal question by referring (it to a jury).'

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"And he chose four Bhikkhus of the East and four "Bhikkhus of the West.......'Let the venerable Saṁgha hear " 'me. During the enquiry into this matter there has been " 'much pointless talk among us. If it seem meet to the " 'Saṁgha, let the Saṁgha delegate four Bhikkhus of the East " 'and four Bhikkhus of the West to settle this question by " 'reference....The Saṁgha delegates four Bhikkhus of the " 'East and four Bhikkhus of the West to settle this question by " 'reference. Whosoever of the venerable ones...approves not " 'thereof, let him speak. The delegation is made accordingly. " 'The Saṁgha approves thereof. Therefore is it silent. Thus " 'do I understand' "¹

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¹ *Chullavagga*, XII. 2, 7. 8.

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§111. A settlement by this procedure was called a "proceeding in presence" (*Sammukha-vinaya*). The delegates were regarded as lawfully representing the interests in the matter and therefore the parties were considered to be present in the discussion.

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"If then, O Bhikkhus, those Bhikkhus are able on the "reference (or on the committee) to settle the "case, that, O Bhikkhus, is called a case that "is settled. And how is it settled? By the "Proceeding in Presence. And what therein is meant "by the Proceeding in Presence. The Dhamma is "represented, and the Vinaya is represented, "and the particular person is represented."²

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² *Ch. V.*, 4. 14. 21; *S. B. E.*, XX, p. 52.

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If once a question was decided in accordance with any of the valid procedures of the assembly, it could not be re-opened.¹ "Having been "once settled, it is settled for good."

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¹ *Chullavagga*, IV, 14. 25.

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It appears from *Chullavagga*, IV. 14. 9, that a member was liable to the 'Procedure of Censure,' if he did not control himself in discussion and showed "contradiction, cantankerousness, "and similar misdemeanours in speech."

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Re-opening a settled question was also regarded as an offence. "When a legal question, O Bhikkhus, has been thus "settled, if a disputant re-opens the question, such re-opening "is a *Pāchittiya*."

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An act of an assembly, inadequately constituted, could not be indemnified afterwards by a fuller assembly. A contrary opinion seems to have been entertained by some people. But the procedure of indemnity (*anumatikappo*) was altogether rejected by the followers of Buddhism.

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There used to be Clerks or Recorders of the House, who without ever quitting their seats took down minutes of the deliberations and resolutions. A Buddhist suttanta, Mahā-Govinda, to which we shall have to refer again, describes a meeting of the Gods in their Hall the Sudhamma Sabhā ('the Hall of Good Law'). At the four angles just outside the rows of the celestial members of the assembly and in front of the demi-gods (spectators), four recorders, each with 'the title of 'the Great King' (*Mahārāja*), take their assigned seats. The four Kings became the receivers of the speeches and receivers of resolutions 'in respect of the matter,'

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"for which the Tāvatiṃsa Gods having assembled and being seated in the Hall of Good Law, deliberated and took counsel together."

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'They the Four Lord Clerks of the House remaining the while in their places, not retiring'.¹

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¹ MG., *Dīgha Nikāya*, XIX, § 14. Pali Text Society's edition, vol. II, pp. 220-25:

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The learned translator of the Dīgha Nikāya rightly saw in this that 'the Four Great kings were looked upon as 'Recorders of what had been said. They kept the minutes of 'the meeting.'² Now as men attribute their own institutions to their Gods, it is a simple inference that the Indians in the days of the Buddha had such Clerks of the House in their parliaments or 'Mote Halls', as Prof. Rhys Davids has already pointed out.³

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² Rhys Davids, *Dialogues of the Buddha*, Pt. II. (Sacred Books of the Buddhists. Vol. III.), pp. 263-4, n.

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³ *Ibid.* 'There must have been such Recorders at the meetings in the Mote Hall.'

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'Acts of indemnity' and other 'acts' and 'laws' passed must have been reduced into writing, and we know that elaborate record of judicial business was kept by the Lichchhavis. The large body of the republican gaṇas necessitated the presence of more than one clerk. The members of the assembly made speeches from their seats and the Clerks near the section 'took down the words.' Evidently the Clerks of the House were men of position.

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§ 115. This view captured from the fleeting past, from the distant sixth century before Christ, shows clear features of a highly developed stage, marked with technicality and formalism in language, with underlying concepts of legalism and constitutionalism of a most advanced type. This pre-supposes a previous experience extending over centuries. The Jñapti, the Pratijñā, the Quorum, the Śalākā, (ballot-voting),

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Yen' atthena devā Tāvatiṃsā Sudhammāya sabhāyaṃ sannisinnā honti sannipatitā, taṃ atthaṃ chintayitvā taṃ atthaṃ mantayitvā vutta-vachanā pi teṃ chattāro Mahārājā tasmiṃ atthe honti, pachchanusiṭṭha-vachanā pi taṃ chattāro Mahārājā tasmiṃ atthe honti sakesu āsanesu ṭhitā avippakantā.

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the Procedure of Majority, the Reference, are all mentioned by the Buddha without any definition, that is, as terms already current.

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The Jātakas, which go back in date to pre-Buddhan times, do not let any doubt linger as to the existence of the procedure of voting and its use in political matters before the birth of the Śākya Muni. In Jātaka I¹ (p. 399) the election of a king to the vacant throne of a city is described. All the ministers and the Nāgaras (the members of the capital assembly or the citizens of the capital) having agreed unanimously by a common voting (eka-chchhandā hutvā) elected their new king. This was a *Referendum* of the whole city, and not the city assembly only, as the word for the City assembly in Pāli is Negama (see ch. xxvii, below). Referendum (*ºchhandaka) of the whole city (Sakala-nagara) was known to early Buddhist literature on which the author of the commentary on the Jātakas drew. Chhanda, according to the Pāli canon is *voting*, and the *ºchhandaka of the whole city in a city-state would naturally mean a referendum. In any case, the reference to the election of king by a common voting is certainly pre-Buddhan in the text of the Jātaka. There is another passage in the Jātaka, Vol. II, pp. 352-3, which proves that the procedure of moving a resolution three times in political matters obtained before the time of the Buddha. The procedure is mentioned in a humourous fable; it, therefore, must have been well-known in actual life to be so mentioned. A bird is repeating a motion for the election of a rājā, evidently a republican rājā; he has done so twice and the motion was opposed by another member of the assembly: 'Wait please!' The opposer of the motion begged leave to make his speech which was granted on condition that the speaker should state his reasons on the principles of political science and law (*artha* and *dharma*). The speaker gave his reasons and he carried his opposition. The opposition was on the well-known republican ground: that the proposed king¹ had not a pleasant presence. Evidently, it is a mimicry of the republican principle of election on the ground (amongst others) of good looks and presence. But the procedure which comes out of the mimicry and ridicule establishes our thesis. It was republican first and became Buddhistic afterwards.

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¹ Fausböll's ed

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¹ Mr. Owl.

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The Buddha only adopts the procedure-rules for particular kinds of cases arising in his organization. He himself came from one of the republics and mostly lived amongst republican communities: he was perfectly familiar with their working system and adapted it to the benefit of his own Order. His ambition was to found a large state, an empire, of his religious system (*dharma-chakra*) but the organisation he created to realise his aim was communal, fit to establish and hold only a city-state of dharma and not a *dharma-chakra*. The limitation was the result of early associations. Born in a republic, where political and public spirit was more intense than in contemporary kingdoms, he combined in him the capacity, the enthusiasm and the ambition, not of a quiet recluse, but of a republican chief and of a conqueror.² Unlike the normal Hindu ascetic he would hold property for his Saṅgha, he would hold meetings and pass resolutions and punish offenders.

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² In personal matters also, the Buddha showed a conservativeness acquired from his early associations. He was proud of his Ikshvāku lineage even when a recluse. He told the Brahmin Krishṇāyana, who had insulted him as a S'ākya, that he (Krishṇāyana) was descended from one of the slave girls of the Ikshvākus. 'If you do not give a clear reply (to my charge), then your head will split in pieces on the spot.' *Ambattha Sutta*, Sutta 20, Rhys Davids, *Dialogues*, I, 114-116.

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Throughout his spiriual achievements, he is a republican Śākya, and his system is a constitutionalised spiritual propaganda, a Propaganda of Conquest. To achieve success in his spiritual designs, he had to perpetuate his republic of dharma (Dharma-Saṃgha), and to perpetuate the republic of dharma, he adopted the constitution and the constitutional procedure of the republic of politics.

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