History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.78

v4.c63.78

Justice was to be primarily dispensed by the king. He was an original court as well as an appellate tribunal. Smṛtis and digests insist that the king cannot dispense justice by himself alone, but must do so with the help and guidance of others. Manu VIII. 1-2 and Yāj. II. 1 provide that the king wearing no gaudy dress or ornaments is to enter the sabhā (the Hall of Justice) for looking into the causes of litigants, accompanied by learned brāhmaṇas and ministers proficient in statecraft, is to be free from hot temper and greed and decide according to the law laid down in dharmaśāstras. Kāt. (55-56 quoted in V. M. p. 278, Mit. on Yāj. II. 2) says the same thing and adds that a king who examines disputes in the presence of the Judge, the ministers, learned brāhmaṇas, the purohita and the sabhyas attains heaven. Vide Śukra IV. 5. 5 to the same effect (taking half verses from Yāj. and Kāt.). The king was not to decide by himself but was to follow the advice of his judge, though the responsibility even when he took advice was the king's. Vide Śukra IV. 5.6 (*naikaḥ paśyecca kāryāṇi*). Nār. I. 35 says that the king has to abide by the view of the judge (*prāḍvivākamate sthitaḥ*). This sentiment that it is not safe for a single man, however clever he may be, to undertake to decide a dispute was so ingrained among all people that Kālidāsa gives expression to it in the Mālavikāgnimitra (Act I) when he pens the sentence 'sarvajñasyāpyekākino nirṇayābhyupagamo doṣāya'. In Raghuvaṁśa 17.39, Kālidāsa states that king Atithi always looked into the causes of people himself with the help of judges (*dharmastha*)³⁴⁴. Pitāmaha³⁴⁵ states that a person even if he knows the rules (of dharma) should not give a decision single-handed. Justice was to be dispensed openly in the court and not secretly. Śukra (IV. 5. 6-7) states³⁴⁶ that neither the king nor the judge nor the sabhyas were to hear a cause in secret and that there were five reasons that led to the charge of partiality in judges viz. hot temper, greed, threats, enmity and hearing disputes in private. Judicial action is divisible into two provinces, viz. that of law and that of fact. The latter is a field in which it is impossible to lay down rules for determination. On points of facts there was a vast scope for the king's or judge's discretion. And therefore the texts contented themselves by saying that the king or judge should keep an open or impartial mind, should be free from hot temper or greed, should hear causes under the glare of public view and should not decide at his own will alone but with the help of learned brāhmaṇas and sabhyas. As regards points of law the king or judge is required to decide according to the rules of dharmaśāstra (Manu VIII. 3., Yāj. II. 1, Nār. I. 37, Śukra IV. 5. 11) and where there are no texts the king should decide in accordance with the recognized custom of the country. Kāt. solemnly warns³⁴⁷ the king against legislating or deciding according to his own will in the face of the texts: 'If a king decides (a case) by his own *fiat* where there is a text (of the śāstra applicable to it) it leads him away from heaven, it causes ruin to the people, it brings danger (to the king) from the armies of his foes and it strikes down the roots of (long) life; therefore a king should decide the causes of people according to the rules of śāstra; but in the absence of smṛti texts he should carry out (judicial administration) according to the usages (lit. the views) of the country'. These are the same as Śukra (V. 5. 10-11). Kāt. further prescribes that the usages established in a country by the approval of its people and that are not in direct conflict with Veda and Smṛtis should be recorded in writing under the seal of the king. Pitāmaha³⁴⁸ quoted by the Sm. C. (II. p. 26) states that in certain cases it is the king's own mind that is the deciding factor.