History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.95

v4.c63.95

II. p. 15). The chief justice (prāḍvivāka) with the sabhyas constituted the Court, being appointed (*niyukta*) by the king. It was stated above that the king was to enter the Hall of Justice with the chief justice, sabhyas and brāhmaṇas. The distinction is that sabhyas were appointed by the king as judges, while brāhmaṇas were persons who were well-versed in dharmaśāstra, who could attend the Court, though not appointed (*aniyukta*) and whose opinions on difficult points of law were respectfully received by the judges. They (the learned brāhmaṇas) were in the position of *amicus curiæ*. All and sundry were not to intermeddle in trials before the court, but only those who were learned in dharmaśāstra were allowed to express their opinions on knotty points. Vide³⁵⁷ Mit. on Yāj. II. 2. Manu VIII. 12-14 (same as Nār. III. 8-10 in a different order) say that either a person should not enter a *sabhā* or if he enters should say what is proper, that a man remaining silent or declaring what is false becomes a sinner and that, where in spite of the opinion of some or all sabhyas, justice is not done by the king, they become participators in the king's guilt. Kāt. (74-78) makes it the duty of the sabhyas to bring round a king gradually to the right path when the king is about to start on the path of injustice and to state the true decision.³⁵⁸ In the case of the brāhmaṇas their duty ends with stating the rule according to the śāstras; they have not, like the sabhyas, to prevent the king from doing the wrong thing or to bring him round to the path of right and justice. Nār. (III. 1) states elsewhere that one who is not appointed by the king should not interfere by his speech in the decision of a case and that if he does so he would be fined. This applies to the people that are present in the court to see the trial or that accompany the litigants. It has no application to learned brāhmaṇas, who though not appointed by the king, can state their view of the law.³⁵⁹ Vide Vyavahārasāra pp. 16-17. Nār. III. 17 requires that all the judges of the Court should give a unanimous decision, and that then only the decision leaves no grievance (in the mind of the litigants ).³⁶⁰ The V. P. (p. 27) states, following Jaimini XII. 2. 22, that the opinion of the majority of sabhyas is to prevail.³⁶¹ According to Gaut.³⁶² XI. 25 as interpreted by Aparārka p. 599, if there is a difference of opinion among the judges, the king is to seek the advice of those who are learned in the three Vedas (along with the other *vidyās*) and decide the matter finally. Kāt. (58-59) states that the court of justice should have associated with the task of deciding disputes some merchants who belong to a guild, who are men of good family and character, of mature age, endowed with wealth and decent conduct and free from malice. The Mit. and Sm. C. say that this is done to placate the common people in the country.³⁶³ This also shows the growing importance of the moneyed classes and of traders. In the Mṛcchakaṭika a śreṣṭhin and a kāyastha are associated with the Judge.