History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.117
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.117
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The court so far described (i. e. where the king or the chief justice appointed by him presided) was the highest court. But other tribunals were recognized in the smṛtis and digests. Yāj. I. 30 and Nār. (I. 7) state³⁷⁴ that law-suits may be decided by village councils (*kulāni*), corporations (*śreṇi*), assemblies (*pūga* in Yāj., *gaṇa* in Nār.), the judges appointed by the king and the king himself, each later one being superior to each preceding one. The first three were practically arbitration tribunals like the modern *panchayats*. The several words here require explanation and they have been differently interpreted by different digests. Medhātithi on Manu VIII. 2 explains these words at great length. Acc. to him 'kulāni' means 'group of relatives' and also (acc. to some) 'impartial persons' (*madhyasthapuruṣāḥ*) and '*gaṇa*' means 'builders of houses and mansions or brāhmaṇas dwelling in maṭhas'. Acc. to the Mit. and V. P. p. 29 'kulāni' means 'an assembly of the relations, agnatic and cognatic, of the litigants'; acc. to the Sm. C. it means 'the agnates of the parties'; acc. to Aparārka it means 'husbandmen'. It appears likely that 'kulāni' means officers who presided over a group of eight or ten villages and who were granted the produce of one *kula* of land as their salary. Vide Manu VII.
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119 and Kullūka thereon and Dāmodarpur plate of Gupta year 124 in which the head of the district (*viṣayapati*) is said to have been assisted by the nagaraśreṣṭhin, prathama-kulika and prathama-kāyastha (E. I. 15 p. 130) and 'grāmāṣṭa-kulādhikaraṇam' in E. I. vol. 17 p. 345 at p. 348 in the reign of Kumāragupta I. From the Sanchi stone Inscription of Chandragupta II (of the Gupta year 93 i. e. 412-13 A. D.) it appears that *panchayats* were called 'pañcamaṇḍalī' (Gupta Inscriptions pp. 29, 31). 'Śreṇi' means, acc. to most commentators, 'the corporation of persons following the same craft or avocation, though they may belong to different castes' such as horse-dealers, betel-leaf sellers, weavers and dealers in hide. Acc. to the V. M. p. 280, 'śreṇi' is an association of artisans or traders'. 'Pūgas' are assemblies of men of one place (a village or a town) belonging to different castes and following different avocations. Kāt. (225 and 682) distinguishes between *gaṇa* and *pūga* which he respectively defines as 'assembly of families' (*kulas*) (Sm. C. II. p. 18, Par. M. III. p. 352) and 'assemblies of traders and the like' (V. R. p. 668). V. P. p. 30 says *gaṇa* and *pūga* are synonyms. The king was thus the highest court of appeal and next to him was the court of the judges appointed by him. Bṛhaspati (S. B. E. vol. 33 p.
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281 verse 28) ordains³⁷⁵ that the kulas, śreṇis and gaṇas that are well-known to the king may decide the disputes of litigants except those that fall under *sāhasa* and that it was only the king who could carry out the order for fines or corporal punishments, i. e. the arbitration courts could only decide disputes not involving *sāhasa* and they had no power to execute their decrees about fines and corporal punishments, but that their decisions had to be filed with the king, who, if he did not disapprove of them, put them into execution. Pitāmaha³⁷⁶ appears to mention three classes of State courts, while Yāj. and Nār. refer only to two (viz. that of the chief justice and that of the king himself): 'a dispute decided in a village may be taken to the city and one examined in the city (court) to the king; a dispute decided by the king whether correctly or incorrectly cannot be reviewed.' It is distinctly provided by Bṛ.³⁷⁷ (S. B. E. vol. 33 p. 282 verse 31) that the sabhyas are superior to the *kulas* and the rest, the chief justice is superior to sabhyas and the king is superior to all. Pitāmaha377a provides that when a litigant is not satisfied with the decision given by a kula tribunal or the others, he can carry the matter by way of appeal to the king. Besides these courts it appears from Kauṭilya that the village headman (*grāmika* or *grāmakūṭa*) exercised certain summary powers such as driving out of the village a thief or an adulterer (III.
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10) and that he could try some offences (IV. 4, *grāmakūṭamadhyakṣaṁ vā satrī brūyāt &c.*). Even in the 20th century in the Bombay Presidency under the Village Police Act (Bombay Act VIII of 1867) the village headman (called Police Patil) has the authority to try and on conviction to punish with confinement for a period not exceeding twenty-four hours any person charged with the commission of petty assault or abuse within the limits of a village and the person convicted has no right of appeal to any court or magistrate against such conviction and only the High Court has the power to entertain a petition for revision (which it hardly ever does). Bhṛgu³⁷⁸ quoted in Sm. C. II. p. 18 and other digests says that there are ten tribunals common to all men viz. the village people, the assembly of the citizens of the capital, gaṇa, śreṇi, men learned in the four vedas (or *vidyās* viz. ānvīkṣikī and the rest), the *vargins*, *kulas*, *kulikas*, judges (appointed by the king) and the king himself. The *vargins*³⁷⁹ are the groups of various kinds such as gaṇas, pūgas, vrātas, śreṇis and others. Kulikas may be the elders of the families of the plaintiff and the defendant. In the Dāmodarpur plates (E. I. 15 p. 130) we come across one Dhṛtimitra who is described as 'prathamakulika'. The word 'pañcakula' was applied to certain high officers in Gujarat and Kathiawad; vide I. A. vol. 11 p. 220 (Abu Ins.
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of Bhīmadeva dated Vikrama year 1265) and Tawney's translation of the Prabandha-cintāmaṇi pp. 18, 84, 129, 149, 190 for 'pañcakula'. The provisions about the conflict between customs and usages on the one hand and *śruti* and *smṛti* on the other will be dealt with in detail later on in another section. A few words may be said here about conflicts between smṛtis. In disputes between residents of the same country, the same city or the same hamlet of cowherds or of the same capital or village, the decision should be according to their own conventional usages, but in disputes between these and others (who are not residents of those respective places) the decision must be in accordance with the sacred texts³⁸⁰ (Kāt. 47 q. in S. V. p. 72, Par. M. III. p. 41). Another rule is that when there is an apparent conflict between two smṛtis, reasoning is to decide in ordinary life which should be followed or reasoning based on the actions of the aged and the experienced is to decide what text to follow (Yāj. II. 21) and the business of the interpreter consists in holding that one of the smṛtis contains a general rule and the other an exception or that the two apply to different sets of circumstances (viṣayavyavasthā) or that an option may be intended. Voluminous glosses have been written on this one text of Yāj II. 21 right from Viśvarūpa in the 9th century downwards. Another rule is that in the administration of justice dharmaśāstra rules have superior force to those of arthaśāstra.
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This has been already referred to above (p. 9). Bhṛgu further provides that foresters may get their disputes settled by foresters, members of caravans by other members, soldiers by (a tribunal of) soldiers and those who stay in a village as well as in a forest may get their disputes settled either by villagers or by foresters by mutual agreement and that the five tribunals for foresters and others are *kulikas* (high officers or heads of families), *sārthas* (members of caravans), headmen, villagers, citizens. The texts further provide that in certain cases the court was to call in aid outsiders to help in deciding disputes. Vyāsa³⁸¹ says: 'In the case of disputes among traders, artisans, husbandmen and actors it is impossible for others to give a (correct) decision; hence such matters should be got decided by experts in those various matters'. Bṛ. states that in disputes among husbandmen, craftsmen (carpenters and the like), artisans (like painters), money-lenders, guilds, dancers, sectarians (like Pāśupatas) and criminal tribes the decision should be made with the help of those who understand the conventions made by them and their usages. In disputes about the boundaries of villages and about fields in a village, four, eight or ten neighbours were to settle the boundaries (vide Manu VIII. 258, Kauṭ. III. 9, Yāj. II. 150-152). Kauṭ. I. 19 and Bṛ.³⁸² (q. in V. P. p.
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23) say that disputes between those who have performed austerities or between those who are adepts in witchcraft and Yoga should not be decided by the king (unaided), but with the help of those learned in the three Vedas, as otherwise they may feel offended. These quotations show that certain people could claim to be tried by their peers or at least by a jury. This jury system was resorted to for settling complicated questions of fact. It is a very ancient system, being mentioned even by Gautama³⁸³ XI. 21-22 'the king, having received help from the heads of husbandmen, merchants, cow-herds, money-lenders and artisans as regards disputes in their own groups, should finally decide what is just'.