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Hindu Polity: A Constitutional History of India in Hindu Times c45: Chapter XXXII: Law and Administration of Justice

Hindu Polity: A Constitutional History of India in Hindu Times c45

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English

Chapter XXXII: Law and Administration of Justice

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§ 325. Apart from the operation of the Coronation-Oath, the checks and limitations imposed by the Paura-Jānapada and the Council, there was the all-powerful Law, (the Common Law of the Hindus, which is declared again and again to be above the king and as the king of kings.¹ In Manu the king is made liable to be fined.² His powers and obligations are defined in the law-sūtras and law-books as part and parcel of the law) (in chapters on Constitutional Law, the *Rājadharma* or 'Laws for Kings'). Even in the palmiest days of Hindu Monarchy, neither in the Mānava-Dharmaśāstra nor in the Artha-śāstra, was the king placed above the law. He could make new laws according to the Artha-Sāstra, according to Manu he could not do so; but when he could make laws he passed only regulatory laws³ and not laws substantive or laws making him arbitrary.

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¹ See the quotation in the *Viramitrā Darpaṇa*.

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² 'Where common man would be fined one Kārshāpaṇa the king shall be fined one-thousand; that is the settled law.' VIII. 336,

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³ *Arthaśāstra*, Bk. 1, ch. 3; 3 (p. 11).

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The judges in Persia under Cambyses "found a law that the "Persian king might do whatever he pleased."⁴ But such a finding was impossible to be come to by Hindu judges and lawyers; so much so that even the author of the Artha-Sāstra tells his prince that destruction befalls an arbitrary king.⁵

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⁴ Rawlinson, *Herodotus*, II, p. 468.

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§ 326. The administration of justice under Hindu monarchy remained always separate from the executive, and generally independent in form and ever independent in spirit. The reason for this

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कार्षापणं भवेद्दण्ड्यो यत्रान्यः प्राकृतो जनः।
तत्र राजा भवेद्दण्ड्यः सहस्रमिति धारणा।

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was that it was the lawyers who were appointed Judges, and lawyers as a rule were from amongst the Brahmins. It was in the classical period (1,000 B.C.—500 B.C.) while the Hindu king was putting or had put on a new garb, that the Brahmin transformed himself from the humble position of the 'Repeater of Songs' ('Brāhmaṇa') into a political estate. The priest-Brahmin became distinct from the Brahmin of politics and ordinary life. The two divisions are clear in the Śatapatha Brāhmaṇa. At the coronation ceremony, as we have seen, after the consecration the priest as such does homage to the king, and the Brahmin as an estate of the Society does homage along with the Kshatriyas and others. The class which was midway between the priestly and the non-priestly Brahmins was of the Mahāśāla Brahmins (§ 282), the Brahmins of study and action. They mainly devoted their energies to sciences like *dharma*, law, politics and cognate subjects. In the Jātakas we have the Purohita politician and Brahmin ministers as embodiments of political wisdom and moral rectitude. To this class belonged the judges. Under the common law the culprit who had committed a crime was to be punished by the king. But under dharma law he was also to be punished for the sin implied in the crime.¹ The latter jurisdiction was relegated to the Brahmin. Not only that he was an expert in the matter, but also as Brahmin culprits were to be dealt with they were to be judged by one who was their equal and who could have no hesitation in punishing them in matters of dharma delinquency. The Brahmin for the dharma administration was thus absolutely necessary. We find this jurisdiction being exercised by the Purohita in the Jātakas. He at the same time heard and decided, sitting along with other officers (probably non-Brahmins), cases of secular law. Law proper and law ecclesiastical in administration tended to unite into one and unite in the hand of the Brahmin judge. And the Brahmin was fairly above the influence of the king.

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¹ [This is discussed in my Tagore Lectures, X.]

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Then the law court bore the ancient Vedic name, the Sabhā. As the Council of Ministers retained the traces of their independent origin so did the *Sabhā*. The judges were always helped by the community in the administration of justice. They made up the Sabhā and were, to quote a modern word, the jury of the court.

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Their number was odd, to provide for voting (§ 109, I, p. 110, *n.*); and it was enjoined on them to speak according to law. A jury which kept its mouth shut or spoke what is not *Dharma*, was considered immoral.¹

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¹ Nārada, Intro. III. 18 (na sā sabhā yatra na santi vriddhā vriddhā na te ye na vadanti dharmam). 'Either the Judicial Assembly must not be entered at all, or a fair opinion delivered. That man who, either stands mute or delivers an opinion contrary to justice is sinner'. Nārada, Intro. III, 10 (Jolly).

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In the court-scene of the Mṛichchhakaṭika, which I regard as the product of the 3rd century A.C., the jury is mentioned.² The function of the jury we find defined in the Śukra-Nīti as well as in Bṛihaspati and Nārada³; it deserves notice. There the jury is to be composed of 7, 5, or 3⁴, and they are defined as "the examiners of the cause," while the judge, their president, is the "speaker" and the king as carrying out the punishment. In the Mṛichchhakaṭika the judge says, 'We are authority in deciding the guilt or otherwise. The

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² Mṛichchhakaṭika, Act IX,

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³ Śukranītisāra, IV. 5, 26—27.

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चिन्तासक्तनिमग्नमन्त्रिसचिवं ।

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लोकवेदज्ञधर्मज्ञाः सप्त पञ्च त्रयोऽपि वा।
यत्रोपविष्टा विप्रा स्युः सा यज्ञसदृशी सभा ॥
श्रोतारो वणिजस्तत्र कर्तव्याः शुचिवंशजाः ॥

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* * * * * See also *ibid*., 14, 17,

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यदा विप्रो न विद्वांस्त्यात् क्षत्रियं तत्र योजयेत्।
वैश्यं वा धर्मशास्त्रज्ञं शूद्रं यत्नेन वर्जयेत् ॥
राज्ञा नियोजितव्यास्ते सभ्याः सर्वासु जातिषु।
वक्तव्योऽथो नृपः शास्ता सभ्याः कार्यपरीक्षकाः।—*Ibid.*, 40; Bṛihaspati in Vīramitrodaya, p. 42. Cf. Nārada, Intro. II. 45. "One condemned by the Judges shall be punished "by the king according to law." "Justice is said to depend upon the Jury" *Nārada, Intro*. III, 6.

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'rest is in the hands of the king'¹. It was the jury's separate province (*karma proktam prithak prithak*: Brihaspati) to consider the truth or otherwise of the cause brought before the court. Thus even when justice was dispensed by royal judges there was a safeguard against the leanings of the judge.

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¹ १ कार्यं चावेक्ष्य । निर्णये सर्वं समाप्यम् । शेषे तु राजा । Act IX.

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§ 328. We have already seen that the king by himself was not allowed to hear cases.² He heard cases sitting in his Council which included the Chief Justice. These were cases which went on appeal to him as the highest court of appeal³. This is indicated by the authorities quoted below, and still more clearly by the case decided by King Yaśaskara noted in the Rājatarangiṇī (Ch. VI). The appellant had lost his case in all the lower courts and now he appealed from the judgment of the Justices to King Yaśaskara. He heard it in Council along with the judges of the capital who had already heard the matter. The practice of the king hearing original cases must have been given up very early as there is scanty evidence showing that it was ever done in post-Vedic times.

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² Nārada, Intro. I. 35 'प्राड्विवाकमते स्थितः'; Brihaspati, I. 24–'सभ्यानाम्मते स्थितः' (Smriti Chandrikā)

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³ Nārada, Intro. I. 7; Brihaspati, I. 29; Yājñavalkya, II. 30.

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As the king could not govern by himself personally, so he was not allowed to administer justice, as pointed out above, by himself. This was not only the opinion of the code-writers but also the opinion of the constitutional lawyers who prohibit the king to decide causes by himself.⁴

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⁴ Śukranītisāra, IV. 5, 5-6.

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धर्मशास्त्रानुसारेण क्रोधलोभविवर्जितः।
सप्राङ्ग्निवाकः सामात्यः सब्राह्मणपुरोहितः ।
समाहितमतिः पश्येद्व्यवहाराननुक्रमात् ॥
नैकः पश्येच्च कार्याणि वादिनोः श‍ृणुयाद्वचः ।
रहसि च नृपः प्राज्ञः सभासद‍्श्च कदाचन ॥

c45.30

§ 329. In theory the king always presided over the court, whether he was present there or not.¹ The decree given under the seal of the court was called a document given by the king. When a man was summoned to attend the court it was supposed that the king called him. The language of the law-books invariably employs the word ‘king’ as doing all matters of legal execution, and the commentators explain that the ‘king’ there means only the officer.

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¹ *Vīramitrodaya*, pp. 39-42; Manu, VIII. 1, 19.

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§ 330. Records of cases decided were kept. Such records are mentioned as early as the Jātakas. *Viniśchaya-pustaka* is mentioned in vol. III, p. 292. Even laws of procedure of a monarchy inscribed on gold tablets are referred to in vol. V, p. 125. That the records were kept in the time of the law books is evidenced by themselves.²

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² E. g., see Vasishṭha, p. 55.

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§ 331. According to the ideal which prevailed in the time of the Jātakas right administration of justice resulted in a fall of litigation.³ Of course the same result would follow equally from an unjust administration. There is however no allusion to such a state of affairs. Constitutionally the latter was impossible in view of the legal sanction.⁴

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³ *Jātaka*, II. p. 2.

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⁴ Manu, VII. 28., Brihaspati, II. 29; cf. the revolution related in the *Mṛichchhakaṭika*.

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§ 332. An incidental reference to actual administration of justice is found in the Pāli Canon. It throws a flood of light on the purity of justice, disclosing a real rule of law.

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In the Vinaya Piṭaka, Chullavagga, VI. 4. 9, the case of the Anātha-Piṇḍika *versus* Jeta, the Prince Royal, which was decided by the Court of Śrāvasti, the then capital of Oudh, is related to show the great devotion of the Anātha-Piṇḍika to the Sākya Teacher and not to record any extraordinary judicial decision. Sudatta, who was generally called the Anātha-Piṇḍika ("Orphans' co-parcener"), on account of his kindness to orphans, was an ordinary citizen—a *grihapati*—a leading and rich merchant; Jeta was one of the princes of the blood. The latter had a garden "not too far from the town and not too near, convenient for going "and coming . . . well-fitted for a retired life." The liberal Anātha-Piṇḍika thought of buying this garden for the use of the Buddha whom he had invited from Rājagṛiha. He went to the Prince Jeta and said to him, "Your Highness, let me have "your garden to make an Ārāma (rest-house) on it." "It is not, "O gentleman, for sale, unless it is laid over with crores (of "money pieces)." "I take, Your Highness, the garden (at this "price)."

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"No, gentleman, the garden has not been taken." "Then "they asked the lords of justice whether the garden was bought "(lit., taken) or not. And the lords decided thus: 'Your Highness "fixed the price and the garden has been taken'."¹

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¹ Text—*Ch.* VI, 4, 9. उपसङ्कमित्वा जेतं कुमारं एतद वोच: देहि मे अय्यपुत्त उय्यानं आरामं कातुम् ति। अदेय्यो गहपति आरामो अपि कोटिसन्थरेना ति। गहिनो अय्यपुत्त आरामो ति। न गहपति गहिनो आरामो ति। गहिनो न गहिनो ति वोहारिक्ये महामत्ते पुच्छिंसु । महामत्ता एवम् आउंसु यतो तया अय्यपुत्त अग्यो कतो गहिनो आरामो ति। The above has been translated in the Sacred Books of the East, XX. pp. 187-188, by Messrs. Rhys Davids and Oldenberg as follows:—"He went to Jeta the Kumāra, and "said to him, 'Sir, let me have your garden to make an Arama on it.' 'It is not, sir, for "sale, even for (a sum so great that the pieces of) money would be sufficient to cover it if "(they were) laid side by side.' 'I take, sir, the garden at the price.' 'No, O householder, "there was no bargain meant.' Then they asked the lords of justice whether a bargain of "sale had been made or not. And the lords decided thus: 'The Arama is taken, sir, at "the price which you fixed.'"

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On obtaining the decree while the Anātha-Piṇḍika had a part of the garden covered with gold coins, the rest was relinquished by the Prince without further payment.

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Here we have a Prince and a private citizen submitting their case to the law court and the court deciding against a Royal Prince, and the Prince accepting that decision,—all as a matter of course. The case attracted attention not for the principle of offer and acceptance, not as illustrating the independence of the judges, but as observed above, on account of the devotion of the charitable citizen to the Teacher. The legal procedure is described as a mere occurrence of ordinary life. Hence the names of the Hindu Gascoignes have not been mentioned; they in the eyes of their contemporaries, did nothing extraordinary in giving that decision.

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§ 332. The Prāḍvivāka acted in two official capacities. He was the First ('Foremost') Judge and he was the Minister of Justice. We shall note below his functions as the Minister of Justice in comparison with the functions of the Paṇḍita Minister who was the Minister of Law.

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It is remarkable that the Minister of Justice and the Minister of Law took precedence over several of their civil colleagues. The premier position in the Council was occupied by the *Pratinidhi*. The *Pradhāna*, who was the President of the Council, came next. After them came the Minister of War or *Sachiva*, and the Foreign Minister or *Mantrin*, who were responsible for peace and war. Next in precedence were the Minister of Law and the Minister of Justice.

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Firstly, as the Chief Justice, the *Prāḍvivāka* (lit., the First Judge) presided over the Supreme Court in the capital of the kingdom. Next, as the Minister of Justice he prescribed the law of procedure after ascertaining the opinion of the majority of a jury on the subject and then "advising" the King accordingly. It is thus described in the *Śukranīti*:

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'The *Prāḍvivāka* along with the members of the jury sitting 'in a meeting may ascertain by majority of opinion the proce-'dure laws, instituted by himself and those come down: where 'human proof—by witnesses, documents, past and adverse 'enjoyment—was to be employed, and in which cases divine proof '(oaths, ordeals) was to prevail, where interpretation was to 'be allowed, where a matter was to be proved by direct 'evidence (प्रत्यक्ष), where inference (अनुमान) and analogy '(उपमान) were to be resorted to, where opinion of the

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'community and where jurisprudence should be followed; 'and the *Prāḍvivāka* then (lit, 'having considered and ascertained 'these') shall always advise the King.'¹

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¹ साचिभिर्लिखितैर्भोगेर्बल्यनेतेषु मानुषान् । श्रेणीपूगादिसंसिद्धान् व्यवहारांन् विचित्य च ॥ दिव्यैर्वासाधनादपि कैषु किं साधनं परम् । युक्तिप्रत्यक्षानुमानोपमानैर्लोकशास्त्रतः ॥ बहुसम्मतसं सिद्धान् विनिश्चित्य सभास्थितः । ससभ्यः प्राड्विवाकस्तु नृपं संवोधयेत् सदा ॥ Sukranīti, II. 96-98.

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The Minister of Law, on the other hand, who is elsewhere called the *Dharmādhikārin*, is called the *Paṇḍita* (the Learned Minister) in the Sukranīti, and his duties are thus defined:

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'The *Paṇḍita*, having considered what ancient and present 'laws are at present followed by the community, which of them 'are approved in the codes and which laws now offend against 'jurisprudence, and which of them are opposed to the communi'ty and jurisprudence, shall recommend to the King laws which 'secure happiness both here and hereafter.'²

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² वर्तमानाश्च प्राचीना धम्माः के लोकसंश्रिताः ।

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This affords a glimpse into the Hindu method of legal reform. Hindu Law was normally considered traditional and as such could not, in theory, be altered by direct or avowed changes introduced by the State. The law was, however, occasionally altered by direct legislation³ and more generally by interpretation, and also by new treatises fathered on ancient names, *e.g.*, the Nārada Smṛiti. Over and above these there was the agency of the two law ministers. The ministers rejected such laws as having regard to the circumstances of the community and public weal were deemed undesirable to be put into operation. They also took into consideration the popular view with regard to the current laws. This method of legal pruning and regard for the popular opinion resulted in the modification of laws and in effect acted as new legislation. It may not be unlikely that the different treatises on Hindu Law differing from each other and modifying earlier laws might, after all, have been the works of Ministers of Law.

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³ See App. D.

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§ 333. The most pronounced feature of Hindu Polity was the dominating position of Law throughout history. It was so when the law was administered by the communal *Sabhā* and it remained so when the law was administered by the royal *Sabhā*. The Sabhā had not the same history as the 'Court.' It was not an outcome of the King's household but of the Vedic folk-assembly. History was against a possibility of the Sabhā becoming the foot-stool of the throne. When it became the king's right and duty to maintain the administration of justice, he exercised it in accordance with the condition laid down and accepted through the Coronation Oath. He had to administer scrupulously the law of the country. Then, there was the Brahmin agency which always balanced and counterpoised the estate of sword and the estate of wealth. When undue interference was feared, it was laid down that the king must abide by the opinion of the Prāḍvivāka.¹

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¹ प्राड्विवाकमते स्थितः—Nārada; see above Pt. II, p. 125. For details on the administration of justice the reader is referred to the author's Tagore Law Lectures.

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बाल्ये सु के समुद्दिष्टा विरुध्यन्ते च केऽधुना ॥
लोकशास्त्रविरुद्धाः के पण्डितस्तान् विचिन्त्य च।
सर्वं संशोध्ययेत् तैश्च परत्र च सुखप्रदः ॥
Śukranīti, II. 99, 100.

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