History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.85

v4.c63.85

When owing to pressure of other weighty business the king cannot attend to the work of administering justice, the king should appoint a learned brāhmaṇa together with three sabhyas to decide the disputes of people. Vide Manu VIII. 9-10, Yāj. II. 3, Kāt. 63³⁴⁹ (same as Śukra IV. 5. 12). The qualifications of a judge are set out in many places. Āp.³⁵⁰ Dh. S. II. 11. 29. 5 prescribes that in law-suits judges shall be endowed with learning, good family, and should be old, clever, and careful about dharma. Nār. requires: 'The Judge should be proficient in the texts on the eighteen titles of law, their 8000 sub-heads, in logic (ānvīkṣikī) and should be master of the Veda and Smṛtis. Just as a physician takes out from the body an iron dart by the employment of surgical instruments, so a judge should extricate from a law-suit the deceit (underlying it)'.³⁵¹ Kāt. says that a judge should be restrained, born of a good family, impartial, not repellent (or harsh in his manners), steady, afraid of the next world, highly religious, assiduous and free from hot temper. A fine enumeration of the qualities required in a judge is given in the ancient drama Mṛcchakaṭika (IX. 4). Vide Mānasollāsa II. 2 verses 93–94. A Judge was generally styled *prāḍvivāka* or sometimes *dharmādhyakṣa* (as in Rāj. R. p. 18),³⁵² or *dharma-pravaktṛ* (Manu VIII. 20) or *dharmādhikārin* (as in Mānasollāsa II. 2. verse 93). Prāḍvivāka is an ancient word. It occurs in Gaut. XIII. 26, 27 and 31, Nār.³⁵³ (I. 35), Bṛhaspati (q. by Aparārka p. 602). The word is a combination of ‘*prāḍ*’ (one who puts questions to the suitors, from the root ‘*pracch*’) and ‘*vivāka*’ (who speaks out or analyses the truth, from the root ‘*vac*’ with ‘*vi*’). The derivation is given by Nār., Bṛhaspati, Kāt. 68 and others. The word ‘praśnavivāka’ (which is quite close to prāḍvivāka in sense and etymology) goes very far into antiquity and occurs in Vāj. S. XXX. 10 and Tai. Br. III. 5. 6. The existence of the word prāḍvivāka as early as Gautama (about 500 B. C.) and of prāśnavivāka in the Vāj. S. and Tai. Br. clearly establishes that in ancient India judicial functions became separated very early from executive or political functions.