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Hindu Law and Custom (Recht und Sitte) c10: V. Judicial Procedure

Hindu Law and Custom (Recht und Sitte) c10

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V. Judicial Procedure

c10.1

§ 45. *The king as judge.* The administration of justice,¹ the punishment of the criminal, appears to be one of the chief duties of a good king. If the punishable person remains unpunished the king shall fast one day and he shall fast three days if an innocent person is punished (Vas. 19, 40-43). In order to pass the right judgment he should learn the right law for each caste from authoritative persons and in doubtful cases take the advice of learned Brahmans (Gaut. 11, 22-26). Every day the king shall repair to the hall of justice in the company of learned Brahmans and experienced councillors and courtiers and there sitting or standing shall examine the cases of the complainants (M. 8, 1 f.; Y. 1,359 etc.). This patriarchal method of administering justice can go so far that the king even with his own hands may strike down a confessing thief with an iron club (Gaut. 12, 43-45 etc.). The king is also advised not to begin a law-suit himself (M. 8, 43) because the fines are a lucrative source of income to the king. He must throw into water the money of those fines which were unlawfully imposed or he shall give to the Brahmans thirty times that amount (M. 9, 244; Y. 2, 307). The king superintended also the performance of the Prāyaścittas of the religious law (§ 47).

c10.2

¹ Cf. Colebrooke, On Hindu Courts of Justice (Ess. 1, 490-527); ZDMG 44, 342-362; Kohler, Altindisches Processrecht (Stuttgart, 1891).

c10.3

The council of the king is responsible together with the king himself for the injustice which the king commits by passing a wrong judgment. Of the sin thus originated a quarter falls on the person wrongly condemned or released, a quarter on all the assessors of the court, and a quarter on the king (Gaut. 13, 11 ; M. 8, 18 etc.). The assessors (*sabhya, sabhāsad*) shall speak out their opinion even unbidden (*aniyukta*) and shall not agree, out of selfish motives, with a king who is giving wrong judgment, for in that case they themselves become his accomplices in the crime and would go to hell along with him (Nār. I, 3, 2 ; Kāty. 1, 7 f¹). The house priest (*purohita*) of the king occupies a high place among the assessors who therefore has to expiate for a sin originating from a wrong judgment of the king (Vas. 19, 40f.).

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¹ Bandyopadhyaya, 26-27. *Tr.*

c10.5

The later Smṛtis also mention the chief judge, the ministers, the ancients, the Brahmans and the retinue as the companions of the king. The law-court has been compared to the human body in which the king is the head, the chief judge is the mouth, the assessors are the arms, etc. More accurately, the functions of the limbs or parts (*aṅga*) of a law court, which are ten in number, are thus defined : the chief judge passes the judgment, the king inflicts the punishment, the assessors or judges investigate the merits of the case, the law-book furnishes the decree, gold and fire are used when ordeals are resorted to, the water is to refresh, the accountant calculates the value of the disputed property, the scribe records the proceedings and the court servants have to summon the accused, the assessors and the witnesses and hold both the parties in custody if they have given no surety (Bṛh. 1, 4—10). Vyāsa mentions also "the keeper of the disputed property" (*sādhyapāla*), a Śūdra who as a kind of beadle or executor of the verdict has to look after the execution of the judgment, and the Sabhāstāra who should hold discourses about morals (*dharmavākya*) for the edification of those who are present. In Mah. 4, 1, 24:however the Sabhāstāra appears only as a courtier (*sabhya*, Nil.) who is particularly interested in gambling; moreover mention is made also of the recitals from Purāṇas, Dharma and Arthaśāstras in the court (Bṛh. 1, 23). Also respectable merchants (*vaṇij*, *naigama*, Kāty. 1, 12¹; Mah. 16, 7, 8) should be invited to the court in order to win over the people (*lokarañjanārtham* Mit. on Y. 2, 2).

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¹ Bandyopadhyaya, 22-23. *Tr.*

c10.7

The court shall sit in an edifice situated in the middle of the fortress (*durga*) of the king; the court hall shall be situated in the east and should be decorated with statues, pictures, idols, jewels, garlands and furnished with a throne (Bṛh. 1, 19). The forenoon is considered to be the proper time for holding the court, more accurately the time from the second to the fourth eighths of the day (Kāty. 1, 19²). In passing judgments the king shall follow the Dharmaśāstra and the opinion of his chief judge (Nār. 1, 1;35).

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² Ibid. 40. *Tr.*

c10.9

Already Megasthenes, fragment 28, points out that in the time of peace Indian princes leave their palace, if not for sacrifice or chase, only for the purpose of giving verdicts and continue at it the whole day even when four servants massage them with wooden cylinders. In the inscriptions too the examination of law-suits appears as one of the most important virtues of the administrator, thus IA 9, 170 speaks about a Nepalese king and the Rājatar. mentions many instances of Soloman like verdicts of Kashmirian princes (6, 14 ff., 42 ff., 8, 123—156). In Nepal too even now the state council (*bhāradar sabhā*) which is presided over by the king, functions partly as the highest court of appeal in law-suits and sometimes it inflicts heavy punishments as a court of the first instance³. The same was the case in Central India in the Mahratta period when lawsuits over an amount of money exceeding 100 rupees went directly to the Raja, in other cases his court was the highest court of appeal. The king gave judgment mostly according to the advice of a Śāstrin ¹. Already in his inscriptions Aśoka prides on having established a kind of religious department (dhammamahāmāta) for the superintendence of the pious conduct of his subjects ².

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³ Hodgson, Ess. 2, 213—215.

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¹ Grant, C. P. Gazetteer 70 f.; Malcolm, Central India 1, 557.

c10.12

§ 46. *Other courts in the state.* Even the oldest Smrtis permit the king's being represented by a learned Brahman who is to investigate and decide the law-suits for him (Gaut. 13, 26; Vi. 3, 73; Vas. 16,² etc.). Details about the position and the function of the chief judge (*prāḍvivāka*, *adhikṛta*, *adhyakṣa*, *dharmādhyakṣa*, *sabhāpati*), who assists the king when he is present and represents him when he is absent, may be derived from the later sources. The name Prāḍvivāka is derived in this way: he questions (*prcchati*) the parties and then gives his verdict (*vivecayati*). As an expert surgeon removes the thorn or morbid matter out of a wound, even so the Prāḍvivāka should remove the thorn of injustice out of a law-suit by means of investigations and enquiries. In caste he should be Brahman or at least belong to one of the higher castes, the Śūdras are absolutely excluded from the post of a judge. His knowledge should comprehend not only the 18 titles of law along with their sub-divisions but also extend to logic and other sciences and to Śruti as well as to Smṛti. He should also be determined, firm, patient, virtuous, impartial, pious, kind-hearted and of a good family. As insignia of his position he carries the seal (mudrā) of the king, which is particularly necessary for the summons of the parties; the court conducted by him is therefore called *mudrita* "furnished with the royal seal" (Bṛh. 1, 3, 12, 24 ; Nār. 1, 3, 16 ; Quot. 1 1 etc.).

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² Bühler ZDMG 48, 53.

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The assessors of the chief judge must be like himself respectable, pious, learned, truth-loving, impartial, incorruptible men of any one of the three higher castes (Vi. 3, 74 etc.). They are subordinated to the chief judge as well as to the king ; yet the Sabhyas too under certain circumstances have formed independent colleges of judges in which decisions were arrived at by a majority in votes or by unanimity. Thus according to Nār. I, 3, 17 the thorn of injustice may be removed only when the whole college of judges (sabhyo janaḥ sarvaḥ) are unanimous about the decision.

c10.15

Appeals too are preferred by the Sabhyas to the chief judge and by the latter to the king (Bṛh. 1, 30 f.), or by the village court to the city court and by the latter to the king (Pitam.). The commentators too distinguish between these three courts of appeal; on the other hand, Y. 2, 30, Nār. I, 1, 7 etc. are acquainted with only the two courts of the king's judge and of the king himself,—a state of things quite in conformity with the simpler circumstances of an older period.

c10.16

The law-courts may again be of two kinds : standing (pratiṣṭhita) courts which sit in a city or in a village and ambulant (apratiṣṭhita) courts which have no fixed seat (Bṛh. 1, 2 f.) ; they can however signify mere private arbitration courts. The headman of the village (grāmaṇi, grāmādhipa, grāmapati), whose post was hereditary, acts as the village judge. According to Vyāsa the competence of the lower courts is restricted merely to administering reproofs, for the infliction of punishments involving confiscation of property and corporeal punishments is a privilege reserved for the king. According to Bṛh. 1, 6, generally the king alone shall dictate the punishments. Yet the pursuit of the culprit in the villages which was a principal duty of the village headman (Vi. 3,11, etc.) contained in any case in itself a great measure of the power of punishment. The unjust judge shall pay a fine of double the amount of the disputed sum (Y. 2, 4, 305 ; Nār. I, 1, 66) ; they can however be punished still more severely, particularly by the confiscation of property and banishment (Vi. 5, 180 ; M. 9, 231, 234 ; Bṛh. 22, 10 etc.).

c10.17

The appointment of intelligent persons in the place of the king for the examination of the law-suits is recommended also in the Mah. 12, 69, 27. The ninth act of the Mṛcch., called the law-suit (Vyavahāra), describes the judicial proceedings held by one of the chief judges (Adhikaraṇika) of the king in his capital. The constitution of the court is here essentially the same as in the royal courts of the Smṛtis (§45), even the terminology is in agreement with the Smṛtis. The college of judges (adhikaraṇika, niyukta, adhikṛta, draṣṭṛ) assemble in the court hall (adhikaraṇa-maṇḍapa, adhikaraṇa, likewise Vi. 7, 3) which seems to have formed a part of the royal palace. Also the expression rājakaraṇam¹ in the first monologue of Cārudatta seems to refer to the court assembly and the following are mentioned as members of it (144, 12 ed. Stenzler) : the minister (mantrin) absorbed in deep meditation, the messengers (dūta) hurrying here and there, the spies (cāra, mentioned in the Smṛtis particularly in connection with the tracking of thieves and rebels) like voracious crocodiles, the talkative herons i.e. the informers (corresponding to the stobhaka and sūcaka of the Smṛtis), the scribes (kāyastha) a brood of snakes ; also the elephants and horses necessary to trample down the criminals are mentioned (cf. §43). The functions of the chief judge are confined (as according to §45) to directing the investigation in which the assessors help him, and the passing of judgment, while the punishment is fixed by the king (Pālaka). Among the assessors the chief of the guild and the scribe (*śreṣṭhikāyasthādibhiḥ parivṛto 'dhikaraṇikaḥ*) are specially mentioned, who approximately correspond to the merchants (*naigama*) and the clerk (*lekhaka*) of the Smṛtis. The Śodhanaka "purifier" appears as the servant who sweeps the court hall and keeps the seats in readiness and then ushers in the judges, the parties and the witnesses like the Rājapuruṣa of the Smṛtis. The Rājapuruṣas also appears in the drama besides as police officers who seize the condemned criminal.

c10.18

¹ This is according to the Calcutta editions and the commentary and it is perhaps better than the rājabhavanam of Stenzler, because karaṇa is often used in the Smṛtis in the sense of "law-court" and the connection shows that a court is meant here.

c10.19

Of the fables I mention here only the Pañc. 1,21 (similarly Kathās 4 and 19; 5, Kathā 1 and others), where the disputing parties come to the royal court (*rājakula*) and are heard by the judges (*dharmādhikariṇaḥ, sabhyāḥ*). The police too are mentioned in the fables. In Nepal the highest criminal court, which however in important cases is the court of first instance, has 251 officers:excluding the judge, who for the most part are police officers or beadles. The chief justice (*ditha*) presides over this body and the other three courts (*nyāyasabhā*) of the capital, each of which possesses two other judges besides him. The state council (*bhāradar sabhā*) is the highest court. In the provinces there are four other courts, yet the jurisdiction mostly lies in the hands of the Governors and the village headmen.¹ In India itself in the Mahratta period the executive and the judicial departments were mostly unseparated and were entrusted to the village headman (*pāṭil*) in the villages who was helped by his secretary mostly a Brahman; above the Pāṭil stood the governor (*kamāvisdār* or *māmlatdār*), above them the prince. The land-owners too could give judgment excepting in cases of capital offences. There were also judges proper (*nyāyā-dhīsa*) but their jurisdiction was very narrow¹. Already in the Jātakas (I, 199 ff.) the village headman makes a considerable income out of the fines he imposes (*daṇḍavali*).

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¹ Hodgson AR 20, 1; 94 ff. Ess. 2,212–216.

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¹ BG 10, 305ff ; 24, 266–268; Malcolm, Central India 1, 557 ff. 563, 567; Grant, C. P. Gazetteer 70 f. ; Dubois 499 ff.

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§ 47. *The private courts and the penances.* When the government is weak and powerless and the government officials tyrannise over the people, it cannot but happen that the people, specially in the provinces, should by preference obey the *ad hoc* or permanent arbitration courts at least in civil cases.

c10.23

According to Vi. 3,12 ff., the village headman, if he cannot get the better of the criminals in his village, should apply to the chief of the district and the governor, and it may be thus assumed that this took place quite frequently. The oppression of the people by the Kāyasthas, the rivals of the Brahmans, is referred to, for instance, in Y. 1,335 and Rājatar. 4, 351 f., 621 ff., 5,439 etc. The particular jurisdiction of corporations of every kind is recognised in the fullest measure even in the Smṛtis, cf. § 1. The right of making laws for their corporations and composing disputes has been given to farmers, craftsmen, cowherds, money-lenders, members of a sect, robbers, actors, artisans etc. It is particularly recommended to the king to recognise and support the arrangements of and punishments inflicted by the chiefs of a family, of a guild or of a corporation; only when a dispute breaks out between the chiefs and their subordinates the king shall interfere; cases of grave crimes (*sāhasa*) are however exclusively reserved for the king. For forest-dwellers the court shall be held in the forest, for warriors in the camp and for merchants in the caravan (Gaut. 11, 20—22 ; Bṛh. 1, 25—28 ; 17, 17—20 etc.). Successive appeals are also preferred by the clans or families (*kula*) to the guilds or corporations (*śreṇi*), e. g. of horse-dealers, betel-sellers, weavers, shoemakers (Mit. on Y. 2, 30) and by these to the local committees or courts (*gaṇa, pūga*); then appeal may be made to king's judge and also to the king in person (Bṛh. 1, 29—32). The whole title of law named "violation of agreements" (M. 8, 218—221 ; Nār. 10 ; Bṛh. 17), which has been often misunderstood, intends only to place the rights of corporations, particularly of religious ones, under a very great measure of state protection.

c10.24

Criminals often defied authority.

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Tyranny of Kāyasthas.

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Guilds and corporations made their own laws.

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King interferes only in the case of insubordination and grave crimes.

c10.28

Hereditary or elected chiefs (mahattama, mukhya) represented the official organs of the corporations and they were thus entrusted with the whole jurisdiction and they are said to have been assisted by committees of three or five persons (Bṛh. 17, 9 f.); mentions are made also of arbitrators about the election of whom both the parties had to be unanimous (*ubhayasammata*) particularly on the occasion of the frequent boundary disputes (Bṛh. 19, 11). Also the penances of the spiritual law are dictated by such permanent or specially elected judges. In later works on Prāyaścitta the Pariṣad, composed of three to ten learned Brahmans, eventually only of one Brahman, which is to affirm what is right in doubtful cases (Gaut. 28, 48 ff. etc.) is called the proper court for fixing due penances in every case.

c10.29

The chief source about the proceedings to be observed on the occasion of the imposition of a penance is Āp. 2, 10, :12—16 along with the commentary. If a grown-up man has committed a sin, his spiritual advisor (*śāstr*) shall dictate to him a penance according to the rules of the Dharmaśāstra. If he does not perform the penance the Śāstr shall take him to the king and the latter shall refer him to his Purohita learned in law with the order to prescribe for him a proper penance. If he proves refractory even against the Purohita he shall be brought round to the resolution of performing the penance by means of confinement, starvation and other modes of compulsion, yet however without corporeal punishment or enslavement if he is a Brahman. Naturally this intervention of the king does not exclude the intervention on the part of the chiefs of the caste, who could impose the punishment of excommunication from the caste (tyāga) on the sinner who is unwilling to perform the penance (§ 38).

c10.30

The Mahattaras or Mahattamas of villages are often mentioned also in the inscriptions. An example of an elected arbitrator from a drama is found in the judge Asajjatimiśra in the farce Dhūrtasamāgama who as the disinterested party (madhystha), keeps for himself the Hetaera Anangasena, for according to Y. 2, 44 the disputed property may be deposited with a Madhyastha. Another treacherous arbitrator appears in the Pañcat. 3, Kathā 4. The caste chiefs and the village headmen exercise a great influence even to this day¹. Besides it the pañc, pañcāyat "committee of five", so called because it is composed of at least 5 members, is a popular institution and has been recently reinstated in the Deccan by the Deccan Ryot Act and it has been put under the superintendence of a special judge². The committee of the five was composed in Rajputana of the headmen and secretaries of any two villages which the complainant and the accused were free to mention; the Hakim gave his seal to the verdict³. In the Mahratta states too each of the parties was permitted to elect an equal number of members in the pañc, which was then presided over by a government official, and there were also permanent pañcs of the most respectable people ¹, in conformity with the ancient saying that that is no Sabhā in which ancients (vrddhāḥ) are wanting (Nār. I, 3, 18; Mah. 5, 35, 58). In Nepal too the pañcāyats appointed by the parties or by the Government on their desire, decide half of all the law-suits ². In Kolhapur a refusal to submit to the verdict of a pañcāyat was regarded as a proof guilt ³.

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¹ Cf. Steele, Castes 79-156; BG 23, 241, 244 etc.; see above § 46.

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² Bühler (communication by letter).

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³ Tod, Rajasthan 2, 171 f.

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¹ Malcolm 1, 558, 570; BG 16, 304 ff.; 24, 266.

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² Hodgson AR 1.

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³ BG 24, 267.

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The traditions of the religious courts of the Pariṣads are still carried on by the hereditary Dharmādhikārins and other people learned in the law who have to prescribe penances. Even in 1875 there were 5 hereditary Dharmādhikārins in Kashmir who decided the Prāyaścittas and the Rājā saw that they were actually performed⁴. In Nepal too everybody who has sinned through forbidden intercourse with other castes or otherwise against the order of the castes, has to consult the Dharmādhikārins and perform the penances imposed by them⁵. The Mahratta princes, themselves endowed with great religious zeal used to dictate penances for religious transgressions⁶. At the present day in India the caste assembly sit in judgment over such transgressions and commands the guilty person in the old formula: ācāryaṃ labhasva, prāyaścittaṃ samācara to consult a spiritual advisor and to do penance⁷.

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⁴ Bühler, Kāśmīr Report 21f.

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⁵ Hodgson, Ess. 2, 214.

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⁶ Telang, Gleanings from Marāṭha Chronicles in Transactions of 9. Congr. 1, 255, 257.

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⁷ Bühler ZDMG 48, 53. Cf. Elliot, Memoirs 1, 281.

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Dharmādhikārins carrying on the traditions of the Pariṣads.

c10.43

§ 48. *The court expenses appeal and wager.* Not only the numerous and considerable fines (*daṇḍa*) were a lucrative source of income to the kings and their judges but fees too were imposed on the defeated party to meet the expenses of the court. Thus according to Vi. 6, 20 and Y. 2, 42, fees to the amount of 10 and 5 per cent. of the disputed sum had to be payed by the debtor and the creditor respectively. The fines which a complainant or an accused or one who performs an ordeal has to pay if convicted of treachery, is equal or twice the disputed sum (Y. 2, 11; M. 8, 59; Nār. Quot. 6, 86). According to another view indeed only the debtor has to pay a fine, which is doubled if he denies the debt and is then convicted (Nār. 1, 133; M. 8, 139 etc.). Also the Brahman who prescribes the penance for a murder receives a bull as his fee (§ 44). According to other texts, which Raghunandana 226 quotes, the Brahmans who prescribe a penance shall receive from him who performs it, a milch-cow, a bull or at least some trifle. Whether the king's judge received any fixed salary (*vṛtti, nibandha*) over and above the court fees, has not been expressly mentioned; yet however, analogy with the executive officers, who also exercised judicial functions suggests it (M. 7, 118 f.). The court fees are higher in the case of an appeal. He who thinks that the verdict given against him is unjust, may demand a renewal of the law-suit, but must bind himself to pay twice the fine decreed by the first verdict in the case of a defeat; if he is victorious in the second suit this poena dupli (double fine) is inflicted on his opponent and at the same time on the unjust judges (Y. 2, 4, 305 f.; Nār. I, 1, 65 f., cf. Bṛh. 6, 5 f.).

c10.44

The wagers on law-suits too were a source of income for the judges; at least according to Mit., Apar. and Viram. on Y. 2, 18 the staked sum is to be paid to the king or to the judge, while of course according to the Burmese law, Wagers on law-suits a lucrative source of income to the court.

c10.45

derived from Indian law, only 10 per cent. go to the judges and the advocates, the rest on the other hand goes to the victorious party ¹. According to Nār. I, 1, 4 and the commentary thereon the wager (paṇa) is to be stipulated in writing. It shall take place only when the plaint and answer are already filed and the procedure of witnesses has already begun. Either only one party lays wager by promising, in the heat of the dispute, to pay a certain sum in the case of defeat, or both the parties lay wager in which the stakes however may be quite different; the amount of the wager is also independent of the amount of the disputed sum, e.g., very small stakes are allowed in the case of valuable properties of dispute.

c10.46

¹ Richardson, Dhammathat 73.

c10.47

Rules of wager.

c10.48

Court fees in Mahā-rāstra and Nepal.

c10.49

In the Mahratta period in Central India both the parties had to pay court-fees each amounting to one-fourth of the disputed sum ². In Nepal in law-suits about debt even to this day the parties have to pay 5 or 10 per cent. of the disputed sum. If the debtor denies, the case is decided by an ordeal. The complainant and the accused each takes a rupee in his hand and strikes the earth with clenched fists, thus asserting the truth of his statements. The court receives the two rupees; in like manner 5 other rupees are given as sign that the parties submit themselves to an ordeal for the decision. The court officers receive this money; after the decision of the ordeal four other fees have to be paid which are received by the government ³. The Dharmadhikārins who prescribe the penances mostly enjoy a hereditary Vṛtti (vattan) ⁴.

c10.50

² Grant, C. P. Gazetteer 70f.; BG 16, 87 ff.

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³ Hodgson, Ess. 2, 220-223.

c10.52

⁴ Bühler ZDMG 48, 53f.

c10.53

§:49. Civil and criminal procedure. Law-suits (vyavahāra) are divided into civil and criminal cases (dhana and himsāsamudbhava) which are treated in different manners in important cases. Thus in the cases of adultery, theft, real and verbal injuries, violence and other grave crimes everybody may bear witness (Gaut. 13, 9; Nār. 1, 189 etc.), while otherwise the qualifications of the witnesses shall be subjected to a close scrutiny. A similar exception in favour of the grave criminal cases is made on the occasion of ordeals, which otherwise would be resorted to by the accused only if the other party is ready to accept the punishment in case of defeat (§ 52). In criminal cases the answer of the accused has to be given immediately while otherwise pretty long periods are allowed him (Gaut. 13, 28—30; Y. 2, 12; Nār. I, 1,44 f.). On the other hand, he can bring a counter suit e.g. for the compensation of an insult with another insult (Y. 2, 9). The accused may be represented at the court by another person but it is not allowed in criminal cases (Kāty. 2, 11—13).¹ In the case of the 10 principal crimes and 72 other crimes the king may interfere, even though there is none to complain (§ 40), while ordinarily the procedure of accusation is followed ². The cases in which anybody may be convicted merely on suspicion even though there is no witness to prove it, are all criminal cases; thus he who is seen with a firebrand will be known as an incendiary; he who is seen with a weapon, as a murderer; he who is seen with the wife of another, as the adulterer; he who is seen with an axe in his hand will be known as the destroyer of forests (Nār. 1, 172—176). The lower competence of caste-assemblies corporations, families, arbitrators and similar others had probably nothing to do with important criminal cases.

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¹ Bandyopadhyaya, 57-58. Tr.

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² Cf. Kohler, Altind. Processrecht (Stuttg. 1891) 15.

c10.56

In general however the proceedings of civil and criminal cases, as described in the later Smṛtis, are the same.

c10.57

Acceptance of the plaint and the summoning of the accused.

c10.58

The judge asks the complainant modestly entering the court "What is your complaint, what wrong have you suffered? From whom, how, when and why? Have no fear, speak out." The plaint which now follows is subjected to a preliminary examination by the judge. If for instance the complainant is halfwitted, drunken, a woman or a minor or in general incapable of doing legal business, the plaint may be summarily dismissed. Also a law-suit between father and son, man and wife, master and servant, teacher and pupil is not allowed. If the plaint is accepted the judge shall summon the accused by a sealed warrant (*mudrā*) or by a court messenger (*puruṣa*) (Kāty. 2, 1—3¹; Y. 2, 32; Nār. Quot. 1, 6 f. etc.).

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¹ Bandyopadhyaya, 45-47 *Tr.*

c10.60

Accused may be arrested even before the suit is filed.

c10.61

Until the legal summons (Nār. I, 1, 47) has been issued or even before filing a suit (Vīram.), the plaintiff may place the accused under arrest by preventing him from leaving his house or undertaking a journey or a religious ceremony by means of an appeal to the king for that purpose (Mit.); the transgression of such a prohibition entails legal punishments excepting under special circumstances, e. g. when somebody is arrested in a dangerous or miserable condition, and moreover anybody who is just about to marry or to offer a sacrifice or to give alms, a cowherd who tends his cattle, a warrior in battle and other persons engaged in pressing business, cannot be arrested (Nār. I, 1, 48—54 etc.).

c10.62

Persons who cannot be arrested at all.

c10.63

In similar cases legal summonses too are not to be issued and moreover noble ladies, idiots and other persons incapable of legal procedure, cannot be summoned; excepting these, whoever fails to obey is punished with fines varying according to the gravity of the situation and he also loses his suit. The complainant has to bear the cost of the court messenger so long as he is

c10.64

Punishment for disregarding the summons.

c10.65

engaged in searching out the accused (Kāty. 2, 7, 14 f., 25;¹ Nār. I, 2, 32, etc.).

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¹ Bandyopadhyaya, 50, 59-60, 69. *Tr.*

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Only when both the parties or at least their representatives are present at the spot the procedure proper may begin, which according to the later authors, for the first time in Y., is divided into four parts, plaint, answer, trial and verdict. The written plaint or declaration (*bhāṣā*, *pratijñā*, *pakṣa*, *pūrvapakṣa*, *vāda*) is called the kernel (*sāra*) of the procedure and for this reason it is composed with particular care. The judge has the deposition of the complainant at first noted down on a writing board probably of black wood² then the fair copy is made on a sheet; or the plaint is written down on the floor and the whole procedure recorded in this way. The plaint may also be afterwards modified and improved so long as the answer is not tendered. The plaint which is obscure and self-contradictory and which is absurd, contrary to good custom or which contains any other defects shall be disallowed by the judge. The complainant shall come first to prove his case and his witnesses shall be heard at first; for this reason dispute about priority may easily arise between the two parties³ which is then decided not only according to priority of time but also according to the contents of plaints of both the sides or according to the castes of the parties. Both the parties must give sufficient security, otherwise the court servant takes them into custody and the object of dispute too may be taken care of by a Sādhyapāla (Nār. I, 2, 7—20; Quot. 2, 1—20; Bṛh. 3, 4—14; Y. 2, 10).

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² Burnell, Palaeogr. 87.

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³ That is, when there is doubt as to who is the plaintiff and who the defendant. *Tr.*

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The answer (*uttara*, *pratipakṣa*, *vāda*), likewise in writing, has to follow immediately only in important or urgent cases; otherwise longer or shorter respites are The answer and the respite for it. allowed according to the nature of the cases; they sometimes extend over a whole year and sometimes even any period is allowed that may be asked for (see above). The answer in writing shall exactly correspond to the contents and the line of thoughts of the plaint and it must be clear, precise and not confused or evasive. There are four kinds of answers: denial (*mithyā*), a confession (*sampratipatti*), protest or a special plea (*kāraṇa, pratyavaskandana*) and reference to a previous verdict in a similar case (*prāṇnyāya*). The denial is fourfold: "It is not true, I do not know it, I was not present there, I was not yet born at that time." It is an instance of protest when the accused says: "I of course received 100, but I have returned the amount to you" (Nār. I, 2, 2—6; Quot. 3, 1—7; Bṛh. 4, 8 f.; Hār. 1, 20—25 etc.). Silence or refusal to answer is considered to be equivalent to confession. At first it is tried to extort such a confession showing the inducement that half the punishment shall be excused if the accused confesses his guilt (Nār. I, 2, 32 f.; Quot. 3, 10 etc.).

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Various kinds of answers.

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Who is to prove his case? Before the third part of the procedure, the trial, can begin the judge has to decide on which party the burden of adducing proofs shall fall. In general, in the case of denial the plaintiff, and in the case of protest or reference to a previous verdict, the accused has to begin the act of proving (*kriyā*); in the case of a confession generally no trial takes place (Hār. 1, 29 etc.). In doubtful cases an amicalble settlement is recommended to the parties which may also be ordered by a royal mandate (*rājājñā*), but it will have to be performed at the proper time if the payment of a fine, amounting to double this disputed sum, has to be avoided (Bṛh. 5, 10-13).

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Amicable settlement recomended.

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Court procedure in the Mṛcch. In the Mṛcch. the plaintiff (*kāryārthin*) is ordered by the judge to present his plaint, which the court scribe records on the floor (likewise in the Dhūrtasamāgama);

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Cārudatta, accused of murder, is courteously summoned to the court, and in the procedure it is attempted to extort from him an admission of guilt even under the threat of flogging. Alberuni 2, 158 mentions the plaint in writing, furnished with data about the proofs. Also in the Mahratta period plaints and answers in writing were often in use¹. Dubois 497 speaks of a legal usage analogous to the Āsedha, in which the plaintiff goes to his opponent with the words "I arrest you in the name of such and such", mentioning thereby the name of the prince or the governor; the man spoken to in this manner can do nothing until he has tendered his answer for it. In Nepal in the case of civil cases the judge asks the plaintiff about his complaint, and on his paying for it gives him a court servant with him to fetch the accused. In criminal cases it is attempted to extort from the accused an admission of guilt by flogging him; in civil cases it is tried to effect an amicable settlement, and it is done mostly with success². Also the court scene in Pañc. 1 Kathā 21 ends with an amicable settlement.

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¹ BG:16, 304 ff.; 27, 266.

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² Hodgson, Ess. 2, 220-224.

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§ 50. Procedure of witnesses. The trial (*kriyā*) is mainly based on the deposition of witnesses, particularly according to the older sources. The knowledge of the witness is based on what he has seen (*sākṣin*), or what he was present at (*deśya*, *anubhāvin*) and what he has understood (*jñātṛ*), and he is primarily an eye-witness or an ear-witness; yet indirect witnesses (*uttarasākṣin*) too are known who are somehow instructed by a direct witness or who somehow manage to get wind of the statements made by the direct witness (Nār. 1, 147f., 150 etc.). The indirect witness is one of the "appointed" (*kṛta*) or solemnity witnesses who were called in by the parties for the authentication of purchase and sale, deposit and other legal transactions. Moreover, the witness of a document, the secret witness, who is stationed behind a wall to overhear a negotiation without the other party knowing it, one who was accidentally present and the reminded (smārita) witness who is repeatedly reminded of what took place in his presence so that he may not fall a prey to his forgetfulness—all of them are "appointed" witnesses. The judge and the king are regarded as unappointed witnesses (akṛta) for what was discussed before them, the village community are unappointed witnesses for what took place in the village, particularly in the case of boundary disputes and family members, acquaintances, and employees are unappointed witnesses for what was known to them on account of their relations with the parties (Nār. 1, 149—152; Bṛh. 7, 1—17; Kāty. 6, 5-10¹).

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¹ Bandyopadhyaya, 249-254. Tr.

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Unappointed witnesses.

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The minimum number of witnesses is usually set at three. Bṛh. 7, 16 ff. speaks of 9, 7, 5, 4, 3 or 2 witnesses, but he however makes distinctions among them. Thus only 2 witnesses are said to be sufficient if they are learned Brahmans or secret witnesses or witnesses by whom documents are attested while on the other hand in the case of voluntary, reminded, family or indirect witnesses always 3 to 5 witnesses are necessary. In general, no notice shall be taken of a single witness, yet the deposition of a messenger, accountant, accidental witness, king and the chief judge may be valid even if he is the only witness. Others allow a single witness if he is acknowledged by both the parties; a single witness shall also be heard when it is about a deposit or an article borrowed for use (yācita) or if he is the manufacturer of the disputed property or if the witness for some other reason particularly deserves to be trusted, and specially in criminal cases the competence of the witnesses must not be examined too strictly (Vi. 8,

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Minimum number of witnesses varies according to their special qualities.

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Sometimes even a single witness is heard.

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Everybody can bear witness in a criminal case.

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5 f., 9; Gaut. 13, 9; Y. 2, 72; Kāty. 6, 16 f.¹ etc.). If the depositions of witnesses are contradictory, the statement made by the majority of the witnesses shall be taken and if the witnesses are equally divided the decision depends on the respectability or the extraordinary memory of some witnesses (Vi. 8, 39; Nār. 1, 229; Bṛh. 7, 35 etc.).

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¹ Bandyopadhyaya, 256-257. Tr.

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Generally as a rule only respectable, honoured, pious and reliable persons, of the same caste as the accused if possible, shall be allowed to give evidence. Inadmissible witnesses (asākṣin) are friends or enemies, relations or servants of anyone of the parties concerned and people interested in the issue of the case, men of bad reputation or of bad conduct or of despised position, such as a bad character, a gambler, or one who was formerly guilty of perjury or a notorious criminal and traitor, one who is excommunicated from his caste, actors or singers, snake-catchers, slaves, as well as persons who are incapable of carrying on a law-suit or who have no experience of the world, such as women, children, half-witted persons, ascetics, those who are learned in the Vedas or are studying the Vedas (Gaut. 13, 1-4; M. 8, 61-72; Nār. 1, 177-187 etc.; Mah. 5, 35, 44). He who gives a deposition without being ordered or asked is regarded as unreliable, but also omission or refusal to give the deposition or non-appearance inspite of a summons is punished (Gaut. 13, 5 f.; Nār. 1, 161; Bṛh. 7, 31 etc.). The rejection of unreliable witnesses is primarily the concern of the opposite party but this protest has to be raised at the proper time and the judge shall examine it along with the reply of the other party (Bṛh. 7, 24—26). Yet it is naturally one of the chief duties of the judge to estimate the reliability of a witness, in which signs of the consciousness of guilt such as bodily disquietude, cold sweat, pallor, incoherent speech etc. are to be particularly taken into consideration (Vi. 8, 18 ; Nār. 1, 193—196, 230—234 etc.).

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Witnesses take oath. Even the oldest Smṛtis contain long lectures with which the judges shall exhort the witnesses in order to prevent them from giving false depositions. Often the witnesses take oath with prescribed formulas varying according to the status of the witness (Vi. 8, 19—23 etc. ; differently Gaut. 13, 12). For the enhancement of the solemnity of the occasion the hearing of the witnesses may take place before a glowing fire and near (a jug of) water, in the presence of the king, Brahmans, gods i. e. images of gods (Āp. 2, 29, 7 ; Gaut. 13, 13). The witness shall also put off his shoes and turban, take gold, cowdung or holy grass in his right hand and stretch it out (Bṛh. 7, 23). A mishap, particularly illness, burning by fire or the death of a relation, happening to the witness within seven days of giving evidence is regarded as a sign of perjury. In the case of giving evidence in a boundary dispute, this period is extended to 6 weeks (Kāty. 18, 19¹)

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¹ Bandyopadhyaya, 582. *Tr.*

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Solemn ceremonies at the time of giving evidence

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Punishment for perjury and concocting false witness. False witnesses are punished with fines and banishment. Bribed witnesses have to pay particularly heavy fines and bribing or seducing to give false evidence is likewise punished with heavy fines and with the confiscation of property and banishment and leads to the loss of the suit. The last punishment is also inflicted on him who tries to influence the witnesses of the opposite party in his favour (M. 8, 120—123 ; Y. 2, 81, Kāty. 6, 26² ; Nār. 1, 165). Over and above the temporal punishments there are the most terrible hell tortures and low rebirths and the perjured person by his false evidence throws into hell long lines of predecessors and relations—their number depends on the value of the disputed property ; this belief is met with not only in the oldest Smṛtis and Mah. 5, 35, 32-34, but it appears also in the Vendidad and therefore seems to go back to the Indo-Aryan period. The hierarchy of *paśvanṛta*, *gavānṛta*, *puruṣānṛta*, *bhūmyanṛta* exactly correspond to the *pasu-mazo*, *staoro-mazo*, *vīro-mazo*, *daṅhu-mazo* of the fourth Fargard, and also the *mithro aiwidrukhto* may be compared with the *mitradruh* of the Smṛtis, in so far as the sin of the latter may be placed on the same footing as that of a false witness ¹. The Smṛtis mention only a single case of permissible perjury, namely when the life of a man, particularly of a Brahman, is at stake; yet the sin committed through such an untruthful act, has to be expiated for by a sacrifice (Vi. 8, 15,—17; Gaut. 13, 24; Bṛh. 7, 34 etc.).

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² Ibid. 289, 296. *Tr.*

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¹ Cf. Spiegel ZDMG 30, 366 ff.

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The belief about the hell tortures of the perjured person is of Indo-Aryan antiquity.

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Perjury pardonable when a man's life is at stake.

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Already Megasthenes (fragment 27) speaks of mutilation as punishment for false evidence and corporeal punishments may be actually inflicted in the case of the false evidence of a low caste man according to Mit. on Y. 2, 81. According to Alberuni 2, 158 at least four witnesses had to be taken and only an exceptionally reliable man might be an only witness. According to Steele 285ff. minors, men rendered infirm by old age, a deaf man, one diseased in mind, an unusually quarrelsome person, one who is avaricious, one who is addicted to drink or opium, or one who is related with or friendly or inimical to a party, women and slaves were regarded as inadmissible witnesses; yet in the case of murder and other serious criminal cases everybody who was accidentally present should be heard. The minimum number of witnesses was two, yet in particular cases and when the witness had qualification a single witness was also permissible. False witnesses were punished with fines or detracting punishments excepting when a human life was saved or any pious gift was made thereby. According to Dubois 497 witnesses always had to take oath,

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Law of witnesses in mediaeval and modern times.

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usually with the hand laid on the head of an image of a god, yet perjuries were very frequent. In Nepal the false witness forfeits his property and even suffers corporeal or capital punishment¹.

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¹ Hodgson, Ess. 2,226.

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§ 51. *Other methods of proving.* Already Āp. 2,29,6 speaks of the divine ordeal (daiva) along with the proof by inference (liṅga). Later authors give a complete system of the methods of proving, namely (a) human or worldly proof (mānuṣī or laukikī kriyā), consisting of proof by means of documents and witnesses and circumstantial evidence, or documents, witnesses and possession or merely by documents and witnesses; (b) divine intervention (daiviki kriyā) consisting of oaths and ordeals (Nār. I, 1, 3; 1, 69, 235-239, 247 ff.; Bṛh. 5, 18; 9, 32; Y. 2, 22 etc.). According to Bṛh. 9, 32, of worldly proofs witnesses are superior to inference and documents etc. are superior to witnesses; a possession for three generations however overrules everything. As a rule, the proof by ordeal shall be resorted to only in default of worldly proof (Y. 2, 22 etc.).

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In selecting the method of proving the nature of the case and the competence of the court shall be taken into consideration. Thus in the case of a breach of promise, resumption of a gift, recission of a purchase or a sale, dispute about property, gambling and wagers, only the proof by means of witnesses is resorted to. On the other hand, in the case of disputes about setting and using a gate or a road or a canal, possession alone is the decisive factor. The arbitration courts of the castes, corporations, etc. shall allow only documents as means of proof. In serious criminal cases or when crimes which were committed in secret or a long time ago have to be investigated or when the case concerned is about the denial of a deposit or the genuineness of a document or the validity of the deposition of a witness, etc.—in all these cases only oaths or ordeals are admissible. In the case of suits about debts documents, witnesses, circumstantial evidence or ordeals are allowed; no ordeals are allowed in law-suits about immovable properties (Kāty. 9, 1ff.¹; Nār. 1, 241 f.; Bṛh. 13, 2f.; 17 etc.). Of course, these rules are not to be taken literally; they are to be regarded as advices for the judges.

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¹ Bandyopadhyaya, 178-181, 235. Tr.

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About the proof by means of witnesses see § 50, about documents § 35, about possession § 26. Pañc. 1, 86 contains this list: documents, witnesses and ordeals. Authenticity of the documents shall be very carefully examined. The proving of the authenticity may be greatly facilitated if the holder of the document shows it from time to time and reads it to the other party. Also documents written under compulsion or with treacherous motives or those which are not drawn up by persons who are legally capable of doing it, are regarded as unauthentic (Nār. 1, 135-146; Vi. 7, 7-13; Bṛh. 8, 20-26 etc.).

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The circumstantial evidence or argumentation (yukti, liṅga, tarka, anumāna, upadhā) is based on a careful consideration and co-ordination of all remarkable and suspicious circumstances. The appearance is the first consideration (§ 49), such as if a man suspected of murder is found with a bloody sword or a man suspected of theft is found with the stolen property. Yet the judges have to be on their guard in this respect against treachery, as for instance, anybody may artificially produce a wound on his body and denounce his enemy as the perpetrator of the crime (Nār. 1, 176). The consciousness of guilt may also be manifest from the conduct of the parties at court, as in the case of false witnesses (Y. 2, 13-15; Pañc. 1, 35f.). Thieves can be convicted not only on the strength of the possession of the stolen property, but they can also be convicted if it is found that they are making extra-ordinarily large expenses, mixing in bad company and they may be discovered for their thievish propensity or their crime may be laid bare by a sharp cross-examination etc. (Nār. App. 8-12). Also the words which the parties let slip when in a passion shall be carefully recorded (Nār. I, 2, 18).

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Of course appearance may be misleading, just as there is no fire in the glowworm although it lights up like fire. Liars may produce the impression that they are speaking the truth and truthful men may be suspected of falsehood. Documents may be forged and ordeals may be eluded; for this reason the judges cannot believe in appearances and must strain all their acumen (yukti) to come to the bottom of the affair (Nār. I, 1, 30, 40, 68-73; 1, 238 f.). How even a holy man may be suspected to be a thief is exemplified in the story of the pious Māṇḍavya (Nār. I, 1, 42) which is related in the Mah. Flying robbers concealed themselves and their booty in his hut. The police found the booty and took the holy man to the king who impaled him as a robber, but later, as he was still alive, set him free and asked for forgiveness. In the Mṛcch. a suspicious utterance, which the plaintiff (saṃsthānaka) lets slip, is at once recorded on the floor. The unjust sentence against Cārudatta is the result of a whole line of points of suspicion dexterously pieced together, among which the possession of the ornaments, apparently the stolen ones, plays the chief part.

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The divine judgment (divya, daivikī kriyā, samaya-kriyā, daiva) is based on the belief in the direct intervention of the deity in order to expose the guilt or to vindicate the innocence and to expiate for the violation of law which has occurred. In simpler cases the oaths (śapatha) come to be first applied which signify variously formulated solemn spells, varying according to circumstances and the caste of the swearer, and the customs of the land etc., and they bring down misfortune and degradation on the man

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Appearance is often misleading.

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Story of Māṇḍavya.

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The ordeal.

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Oath in less important cases.

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who takes oath or on the person who is dearest to him, in case his deposition proves to be false. The Smṛtis mention that already in former ages such oaths were taken by gods and Ṛṣis and they trace the name of the ordeal (divya) back to them (Nār. 1,243 f.; M. 8, 110 ; Pitām. 2,1). An oath formula actually occurs already in the RV 7,104,15 which exactly agrees with the oath of Vas. handed down by Medh. on M. 8,110. Numerous oath formulas are found in Mah. 13,93,115-135, in which there is also the legend of the Ṛṣis accusing each other of the misappropriation of lotus stalks, also referred to by M. and Nār. The man who is taking oath may touch the head or the feet of a Brahman or his wife or his son or the feet of an image of a god, or may take in his hands the blades of Durvā grass or sesamum or silver or gold or earth out of a furrow made by the plough, according as the value of the disputed property is great or small, or he may stretch his hand into fire or water ; the ordeal of the sacred libation too is mentioned in this list (Vi. 9,4—10 ; Bṛh. 10,6 f.; M. 8, 114 ; Mah. 3,10,32 ; Raghun. etc.). All these oaths and ordeals are however regarded as valid only if the person who has taken the oath is not visited by any misfortune or affliction (ārti) within a short time, such as an illness, burning by fire, loss of property, death of a son etc. (M. 8, 115 and comm.). The period of watching for the possible misfortune of the swearer should, in this case, according to Mit. on Y. 2,113, be 1,3,5 or more days according as the complaint is more or less serious, cf. § 50. Neither can an oath be taken thoughtlessly or without the command of the judge ; on the other hand, perjury for the sake of a cow, a marriage, a Brahman, or a woman and in similar other cases is considered to be excusable (M. 8, 111 f. etc. ; Vi. 5, 118 ; cf. the oath of the witness, § 50). Alberuni 2, 158 f. also speaks of “many oaths”, varying according to the value of the disputed property and enumerates as such the oath before 5 learned Brahmans and six kinds of ordeals. Even now oaths are taken by touching the Harivaṃśa, Ganges water, or an ammonite (śalagrāma), an idol, the feet of a Brahman, the head of the son, the tail of a cow etc. ; there is also a period of waiting to watch, whether any misfortune befalls the person who has taken oath.¹

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