History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.20
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.20
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The definition of *vyavahārapada* in Yāj. II. 5 (= Śukra IV. 5. 68) viz. 'if a person informs or complains to the king' (*āvedayati ced rājñe*) conveys that vyavahārapada means and includes only those disputes that are started or brought before the Court at the instance of the parties. Manu VIII. 43 prescribes that neither the king nor his officers should start a dispute (i. e. a legal proceeding ), nor should he sit silent upon (hush up) a matter which has been brought before him by another (i. e. by a party). Gaut. XIII. 27 lays down that a party should humbly approach a judge with his complaint. Kātyāyana (27) states: 'The king³³⁰ should not, through influence or through greed of money, take upon himself the disputes of men, when they do not themselves want to contend (in a court)'. Mānasollāsa II. 20 verse 1274 and Śukra IV. 5. 69 say the same. There must have always been several matters, of which nobody might complain and which the king might have to look into *suo motu*. Manu after dealing with the 18 vyavahārapadas (in VIII. 1 to IX. 251) requires the king (in IX. 252-253) to make efforts to destroy kaṇṭakas (thorns, harmful persons) and dilates upon many aspects of his activities in this respect. Nārada relegates all matters in which the king took action *suo motu* to a separate topic, prakīrṇaka, about which he says 'under prakīrṇaka are comprised lawsuits depending on the king (i. e.
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on the king's own action) such as transgressions of the king's commandments and obedience to his injunctions, grants of towns, dissensions among the constituent elements (such as ministers) of the State, the duties and breaches there of among heretics, followers of the veda, corporations (of merchants) and groups, dispute between father and son, neglect of prescribed penances, abstraction of gifts made to worthy persons, the wrath of hermits, sinful confusion of castes and the rules regarding their maintenance and (in short) whatever (matter) has been omitted in the preceding (vyavahārapadas)—these are treated under prakīrṇaka'.³³¹ Bṛhaspati defines prakīrṇaka in the same way as Nārada. Kauṭilya deals with the vyavahārapadas in his Dharmasthīya (III) section and in the Kaṇṭakaśodhana section (IV) speaks of matters that are similarly dealt with by officers called *pradeṣṭṛs* (who correspond to coroners and police magistrates of modern times), while matters falling under the dharmasthīya section (viz. the vyavahārapadas) were disposed off by judges (called *dharmasthas*). Kaṇṭaka means in Kauṭilya as in Manu IX. 252 'harmful persons'. The chief matters that fell within the purview of the kaṇṭakaśodhana (removal or punishment of harmful persons) officers or courts were: Artisans like blacksmiths and carpenters were generally to work in guilds and receive from people materials for working them up;
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if they caused unreasonable delay in handing back finished articles, they were to receive one-fourth less than the proper wages and were to be fined twice the amount of wages; similar provisions are made for loss of wages and fines for weavers who do not increase the weight of cloth (cotton, linen, silk or woollen) woven up to the usual standard: washermen were to wash clothes on wooden planks or smooth stones, but if they washed them elsewhere, they were to pay compensation for loss caused and a fine of 6 *paṇas*; they were to be fined twelve paṇas for the sale, pledge or hiring out of other's clothes; they were also to be fined for keeping clothes with them beyond the time ordinarily required; for washing the best garments, garments of middling quality and inferior garments the wages were respectively one paṇa, ½ and ¼; trustworthy persons and experts were to decide disputes about colour and wages; similar rules apply to tailors; goldsmiths, who without informing (government officers) purchased from unclean hands (i. e. from menial servants or slaves) without changing the form of the article or after changing the form, or purchased from a thief were to be fined respectively 12, 24 or 48 paṇas; for stealing one (gold) māṣaka (one-sixteenth of a suvarṇa) from off a suvarṇa, the gold-smith was to be fined two hundred paṇas and for stealing one māṣaka out of a silver *dharaṇa* there was a fine of twelve paṇas;
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fines are provided for loss of weight (beyond the recognised standard) in the case of working up copper, lead, brass, bell-metal, tin into vessels and articles; for manufacturing a counterfeit coin, for accepting it or passing it off to another the fine was a thousand paṇas and for entering a counterfeit coin in the royal treasury the punishment was death; a physician, who undertook the medical treatment of a patient without informing (government officers) of the dangerous nature of the disease, was to be punished with the first amercement if the patient died and with the middling fine if the patient died through the carelessness of the physician and if the patient suffered some vital injury, the matter was to be dealt with as assault (daṇḍapāruṣya); musicians and actors shall stay in one place during the rainy season and shall avoid taking excessive gifts or indulging in excessive praise of one patron; for violating this rule the fine was twelve paṇas. The same rules apply to those who show dumb plays and to other mendicants, the latter receiving as many lashes as the fine imposed in similar cases on others. In IV. 2 Kauṭilya prescribes fines against merchants that use false measures, weights and balances; that sell timber, iron, jewels, ropes, clothes misrepresenting them as superior when they are inferior; that conspire to prevent the sale of merchandise; that cause adulteration of grains, oils, salt, medicines &c.;
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that raise the prices beyond those fixed by the superintendent of commerce for local commodities and for foreign produce. In IV. 3 Kaut. provides for measures against such calamities as fire, floods, pestilential diseases, famine, rats, tigers, serpents and prescribes a fine of twelve paṇas for catching or injuring cats and mongooses employed to destroy rats. In IV. 4 Kauṭ. prescribes the measures that the officer called samāhartṛ has to take to protect the subjects against those who prey upon the people secretly by employing foul means. He has to employ spies under various disguises to find out the honesty or corruption of officers in the villages, of superintendents, of judges, of magistrates and witnesses and the punishment in these cases is generally banishment. Kauṭilya IV. 5 deals with the detection of young men inclined to robbery and adultery by the employment of spies and agents *provocateurs* in the guise of ascetics and persons reputed to possess miraculous powers. The Kauṭilīya IV. 6 and 7 respectively describe the seizure of criminals on suspicion or in the very act itself and examination in cases of sudden death. Kauṭ. IV. 8 speaks of questioning in the presence of the wronged party of the witnesses of the accused, whether they are his relatives or total strangers, as regards the country, the caste, the family, the name, occupation, property, friends and residence of the accused and of the application of torture to the accused to elicit an admission of guilt.
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It is said that torture is to be applied only in the case of those whose guilt is believed to be established *prima facie* (*āptadoṣaṁ karma kārayet*), that torture is not to be employed when the accused is guilty of a minor offence, is under age, old or diseased, is under the influence of intoxicants, or is a lunatic, or is overwhelmed by hunger or thirst or fatigue due to a journey, or has eaten to excess or is suffering from indigestion or is weak, nor is it to be employed in the case of a pregnant woman or a woman who was delivered of a child within a month; and in the case of other women only half the torture prescribed for males or only the asking of questions is to be employed. Learned brāhmaṇas and ascetics (when accused) are to be subjected to espionage only. Those who violate these rules or incite others to do so and those who are guilty of causing the death of an accused by torture are to be punished with the highest amercement. Four kinds of torture were employed in the case of complaints about wrongs viz. six daṇḍas, seven whippings, two kinds of suspension, and (fourthly) water-tube (i. e. injecting salt water in the nose from a tube).³³² In this chapter Kauṭ. states that one who charges an innocent man with being a thief or who conceals a thief is to be punished like a thief and that even one who is not a thief may for fear of torture admit that he is a thief, as Māṇḍavya did. Kauṭ. in IV.
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9 prescribes that the *samāhartṛ* and *pradeṣṭṛs* should exercise control over all superintendents of the various State departments and their subordinates, that those who steal or seize valuable articles or jewels from State mines or manufactories should be simply sentenced to death, prescribes various fines and punishments for stealing or removing by force articles of different prices from the State granaries and store-houses, provides punishment for judges that threaten, browbeat, send out or unjustly silence or abuse litigants or that do not ask proper questions or ask improper questions, that cause unnecessary delay, unjustly rehear causes that have been heard or disposed of, and provides heavy punishments for releasing persons jailed or for rape on a woman in a lock-up. Kauṭ. IV. 10 prescribes alternative punishments of fines in lieu of the cutting off of fingers or mutilation of limbs for several offences such as theft or assault, abuse and defamation or showing contempt to the king by riding his horse or other conveyance or fabricating royal orders, prescribes death for selling human flesh, simple death or highest amercement for stealing images of gods or animals, for abducting human beings or for wrongfully seizing fields, houses, gold, gold coins, jewels and crops. Death with or without torture is provided for in Kauṭ. IV.
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11 for murdering a man in a quarrel (but when the wounded man dies a fortnight or a month after the quarrel, highest fine or fine of five hundred *paṇas* and the expenses of medical treatment); different kinds of punishments are provided for wounding with a weapon, impalement for causing violent death of men and women, burning alive for those who aim at securing the kingdom or force entrance into the royal harem or incite wild tribes or enemies or instigate disaffection in the capital or country or army, drowning (or solitary confinement in a dark room, acc. to another reading) for a brāhmaṇa offender of this sort, cutting of tongue for insulting or abuse of parents or a teacher or an ascetic, drowning for one destroying the dam of a tank or for a poisoner or for a woman murdering a man, tearing to death by bulls for a woman who murders her husband or child or her elders or administers poison or sets fire. Kauṭ. adds that the punishment of death with torture has been prescribed by ancient smṛti-writers, but that it is proper to order simple death in cases of offences in which no cruelty enters. Kauṭ. IV.
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12 starts by declaring that no man shall have sexual intercourse with a woman (not his wife) against her will, prescribes different punishments for forcible sexual intercourse with an immature girl or a girl that has attained maturity, of the same caste, or of a different caste, provides that for intercourse with a willing maiden the fine will be 54 paṇas for the man and 27 for the maiden, further provides that it is no offence for a man of the same caste to have intercourse with a maiden who has not been got married for three years after the appearance of menses, provides fines for deceitfulness in substituting one girl at marriage while showing another before, provides that if a woman whose husband is gone abroad commits adultery a relative or servant of the husband may keep her under restraint and that if the husband on his return forgives the woman her paramour may not be proceeded against, but if he does not condone, the nose and ears of the woman may be cut off and the paramour should be sentenced to death. Kauṭ. IV.
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13 provides punishment for brāhmaṇas eating or drinking what is forbidden to them and varying fines for administering forbidden food or drink to members of the four varṇas, provides fines for house-trespass and lurking house-trespass by night, provides punishments for witchcraft, provides burning alive in a vessel for adultery with the queen and other punishments for adultery with women of the several castes, whether guarded or unguarded, prescribes a fine of 24 paṇas for adultery with a nun.