Studies in Ancient Hindu Polity (Based on the Arthashastra of Kautilya), Vol. I c13: Chapter IX. Legal Procedure

Studies in Ancient Hindu Polity (Based on the Arthaśāstra of Kauṭilya), Vol. I c13

Language: English

Chapter IX. Legal Procedure

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In the previous chapter the constitution of the law courts has been dealt with; in the present, the laws themselves will be considered.

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The four basal factors¹ that were taken into account in the administration of justice were: (1) Sacred laws or laws contained in the

¹ धर्मश्च व्यवहारश्च चरित्रं राजशासनम्
(a) विवादार्थचतुष्पादः पश्चिमः पूर्वबाधकः । अत्र सत्यस्थितो धर्मो व्यवहारस्तु साक्षिषु
(b) चरित्रं संग्रहे पुंसां राजशासनां तु शासनम् ॥ —Bk. III, विवादपदनिबन्धः, p. 150.

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That व्यवहार means here a contractual relation or a contract is indicated by passage (b). It says that धर्म is based on truth, व्यवहार on evidence, and राजशासन on the king's order, while custom is determined by large bodies of people. In fact, witnesses were essential to testify to contracts, which were mostly verbal in those days, and this favours the adoption of the above meaning. Besides, the word has been used in the above sense in Manu—VIII, 163, 164, 167; vide also the *Indian Wisdom* by Monier Williams, p. 268, where the word has been taken to mean contract.

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Dharma Śāstras (धर्म), (2) contractual relations created by the parties (व्यवहार), (3) customary laws (चरित्र), and (4) statutory or king-made laws (राजशासन).

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In case of conflict between (1) and (2), or between (3) and (4), the former prevailed over the latter (पश्चिम: पूर्वबाधक:); so that a contract could not transcend sacred law or a statute custom. Passages quoted below show, further, that a statute should also be in consonance with sacred law (धर्मा), contract (व्यवहार) and equity (न्याय), and that in case of conflict between custom (संस्था) and contract (व्यवहारिक) the injunctions of sacred law should be followed. It is also stated that in the event of conflict between statute and equity the statute became inoperative and nullified.¹

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¹ अनुशासदि धर्मेण व्यवहारेण संस्थया न्यायेन च चतुर्थेन चतुर्र्मां महीं जयेत् । संस्थया धर्मशास्त्रेण शास्त्रं वा व्यवहारिकम् यस्मिन्नर्थे विरुध्येत धर्मोऽर्थे विनिश्चयेत् । शास्त्रं विप्रतिपद्येत धर्मन्यायेन केनचित् न्यायस्तत्र प्रमाणं स्यात्तत्र पाठो हि नश्यति । —Ibid., Bk. III, p. 150. (Here अनुशासत् and शास्त्रं refer to राजशासनम्, i.e. king-made law.)

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When a case came up for decision, the preliminary step taken was the registration of the following particulars regarding the suit :—

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(i) The exact date (showing the year, season, month, fortnight and day); (ii) the nature of the offence, and (iii) the place of its occurrence; (iv) the amount of debt incurred, if any; (v) the country, village, caste, gotra, name and occupation of the plaintiff (वादी) and the defendant (प्रतिवादी), both of whom must be competent to sue; and (vi) the statements of the parties, which had to be thoroughly scrutinized by the court.

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Each of the parties had to be on guard against the following kinds of the offence termed परोक्तदोष (paroktadosha) :—

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(1) Deviating from the question at issue and taking to another question; (2) contradicting the previous statement; (3) insisting on the need of consulting the opinion of a third person though his opinion be not worthy of such consideration; (4) breaking off while answering a question though ordered by the court to continue; (5) introducing questions other than those already specified; (6) withdrawing the statement already made; (7) not accepting what one's own witnesses have said;

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and (8) holding secret conversation with the witnesses when it was not allowed.¹

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¹ Arthaśāstra, p. 149.

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Besides these,² there were other sorts of परोक्तदोष. The plaintiff had to make his rejoinders the very day the defendant had answered, for it was presumed that the plaintiff was ready to go on with the case; otherwise he was guilty of परोक्त. But if the defendant was not ready for the case, he was allowed three or seven nights to prepare his defence. If he failed to make his defence within that time, he was punished with a fine ranging from three to twelve paṇas. If he could not answer even after three fortnights, he was guilty of परोक्त, and the plaintiff could recover out of the defendant's property the amount sued for, unless he (plaintiff) agreed to accept in its stead some good service from the defendant. The same punishment was inflicted on the defendant who utterly failed in his defence. If the plaintiff failed to prove his case within the aforesaid time, he committed a परोक्त. If he failed to substantiate his charge against a deceased person, he was made to perform some of his funeral rites. If¹ he was not a Brāhmaṇ he might be ordered to perform the ceremonial रथोत्तरचितम्. The fine for परोक्त generally was पञ्चमम्. Making an assertion without any evidence to support it was another परोक्तदोष, the fine for which was दशमम्.²

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² Ibid., pp. 149 and 150.

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¹ This passage seems to be a little faulty, and the meaning of the next passage, “चाचिं वा सकासं प्रवेशयेत्,” is not clear.

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² Vijñānesvar, in his Commentary on Jājñavalkya II, v. 174, explains पञ्चमम् as a fine equal to the fifth part of anything lost or stolen. If in the light of this explanation, we take the meanings of पञ्चमम् and दशमम् to be the fifth and tenth part of the amount sued for, we meet with difficulty in applying them to line 6, p. 176, Bk. III, पञ्चादानम्, and line 6, p. 184, Bk. III, दासकस्यः ।

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In cases other than strife, violent and direct seizure of property and disputes among merchants, the defendant could not file a counter-case against the plaintiff. Two suits against a defendant for the same offence were not allowed.³

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³ अभियुक्तो न प्रत्यभियुञ्जति अन्यत्र कलह-साहस-सार्थ-समवायेभ्यः । न चाभियुक्तेऽभियोगोऽस्ति ।—p. 149.

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We now proceed to consider the rules regarding witnesses. At the outset it is to be noticed that agents were attached to the law courts for secretly ascertaining if possible the real facts of a law-suit, and for reporting them to the judges.¹ How far the information they furnished would be followed in a particular case depended, of course, upon the discretion of the judges. They had to use their discretion with great caution, especially in cases like that instanced in the passage quoted below,² where the depositions of witnesses were inconsistent and contradictory, and consequently in conflict with the statement of the plaintiff, and where there was a divergence of the report of the "informants" from both the statement of the plaintiff and the evidence.

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¹ पूर्वोत्तरयथाघाते साक्षिवक्तव्यकारणे चारस्तथा निध्याते प्रहेड्यः पराजयः । —Bk. III, विवादपदनिबन्धः, p. 151.

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² Ibid.

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The principal check upon the indiscretions of the judges was the punishment they incurred for their laches and iniquity. The report of the informants had to be utilized therefore with great care, and, with its chances of abuse minimized, it was meant to help the judges sometimes by creating suspicions in their minds which prompted them to sift the evidence more cautiously, and sometimes by corroborating the conclusion pointed to by the statements of the witnesses.

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We find from the Arthaśāstra that a suit was not dismissed on the ground that there were no witnesses forthcoming to testify to the question at issue. For instance, in disputes regarding the non-payment of the wages of a labourer, he could sue his employer even if he could procure no evidence to support his suit.¹ Such a procedure would appear strange, unless we bear in mind that over and above cross-examination of the parties and overt inquiry that could be availed of in such a case, there was another resource to fall back upon, viz. the secret agency for collecting information. Several such instances will occur to us as we proceed.

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¹ Bk. III, साक्षकरण:, p. 184. ² प्रात्ययिकाः शुचयोऽन्यतमा वा यथोक्तराज्ञाः । पञ्चानुमता वा ही पक्षं प्रति न लेवैकः ।—Bk. III, p. 175. साक्ष्याधिकरणम्, साक्ष्यधिकारः । In view of the fact that even a suit with no

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Let us now turn to other rules. In a lawsuit three witnesses, either approved by both the parties (अनुमताः), trustworthy (प्राप्तविद्वाः), or pure (शुचयः),² served the purpose best. In a suit for debt, however, two witnesses approved by the parties might be sufficient, but never one.

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The fact of relationship with the plaintiff or defendant affected the competence of a person as witness. The following persons were not eligible as witnesses, viz., (1) wife's brother (साला), (2) helpmate (सहाय), (3) prisoner (आबद्ध), (4) creditor (ऋणिक), (5) debtor (धार्मिक), (6) enemy (वैरी), (7) dependent (न्यस्त), (8) convict (कृतघ्नः). In addition to these a few other persons could not appear as witnesses except in cases which affected their own people: (a) the king (राजा), (b) a person learned in the Vedas (श्रोत्रिय), (c) the village poor (ग्रामभृत), (d) lepers, etc. (कुष्ठि, मद्यपी), (e) an outcast (पतित), (f) a Chaṇḍāla (चण्डाल), (g) a person of mean avocation (कुत्सितकर्मा), (h) a dogmatist (पाखंडवादी), (i) a female (स्त्री), and (j) a Government servant

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evidence to support it could receive hearing, it seems inconsistent to translate “त्रयोऽवराख्याः” by “at least three witnesses.” So it would perhaps be more reasonable to take “अवराख्याः” in the sense of “serving the purpose best” (प्राप्ति वरः यस्मात् = अवरः).

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प्रात्ययिकाः and साक्ष्यः.—It may be that they refer to two distinct classes of witnesses designated by the two names, the most marked attributes of a witness determining the class under which he falls, (राजपुरुष).¹ In cases of assault, etc. (पारुष्य), theft (स्तेय) and rape (संग्रहण), persons other than the enemy, the wife’s brother and the helpmate could bear witness. Any man or woman having secret knowledge of an underhand transaction could be a witness in regard thereto. The king and the ascetics (तापस) were exempted from this rule.

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¹ In this passage it is not clear who are indicated by the words “पूर्वं च चववदाबाः,” p. 175, Bk. III, साहायानम् (साक्ष्यधिकारः)।

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In case of a dispute between father and son, preceptor and pupil, or master and servant, the words of the superiors were given greater credence.

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Witnesses had to take oaths to divulge the truth before Brâhmaṇs, vessels of water and fire. There were set formulas, varying according to the castes of the witnesses, by which they were urged to speak the truth. A Brâhmaṇ witness was simply told “Speak thou the truth.” The formula for a Kshatriya and a Vaiśya was: “Thou wilt not have fulfilment of thy ambition and wilt have to go a-begging to thy enemies with a skull in hand for a begging-bowl (if thou speak falsehood).” A Śūdra was exhorted thus: “All thy religious merit will go to thy king and all the sins of the king will come to thee (if thou utter a lie), and moreover, thou wilt be punished. Inquiry will be made as to what has been seen or heard.”¹

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¹ ब्राह्मणोदकुम्भाभिसकामे साक्षिणः परिप्रश्नीयात् । तत्र ब्राह्मणं ब्रूयात्—“सत्यं ब्रूहीति”; राजन्यं वैश्यं वा “मा तवेष्टापूर्तफलं कपालाक्षस्येव मिथ्यार्थी गच्छे”रिति । शूद्रजम्म “मरणात्तरे यदः पुण्यफलं तद्राजानं गच्छेत् । राजश्च किल्विषं युष्मान् अन्यथावादे दण्डानुभवः । पञ्चादपि ज्ञायेत यथादृष्टश्रुतम्”—Bk. III, महादानम, p. 176.

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If the witnesses made a concert among themselves and kept back the truth for more than a week, they were fined twelve paṇas. If they continued obstinate for more than three fortnights they were punished with the payment of the amount sued for.

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When the witnesses gave divergent evidence, the judgment was passed upon the basis of the statements of the majority of pure (शुचयः) and approved (अनुमताः) men among them. Or the judgment could follow a via media, if any such were suggested by the diverse statements of the witnesses. Failing these, the Government assumed possession of the article, if any, that formed the subject matter of the dispute.

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If an amount were sued for and the witnesses deposed that only a part of the amount belonged to the plaintiff, then the rest of the amount had to be deposited with the Government. If, however, the witnesses testified to an amount greater in value than what was actually sued for, the excess went to the Government coffers.

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Those witnesses who were easily accessible were called by the parties themselves; those who were far away or who would not come to court except under compulsion were served with summons (আহ্বান).

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The defeated party had to bear the fees paid to the witnesses. They received a food allowance (প্ৰণামতি) in which were taken into account eight items of food. What these items were is not known. Besides this allowance, they were given the necessary expenses for and during their journey.

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A peculiarity of Hindu law courts in ancient times was that the judges had to pay a penalty for their iniquity. They were strictly enjoined to decide cases free from all circumvention, steady in all circumstances, impartially and diligently, thus winning the love and confidence of the people; but if they were guilty of any laches, partiality or any such misconduct unworthy of a judge, they could not escape with impunity. This feature is also noticed in Chandra Gupta's law courts. If a judge threatened, rebuked, silenced or drove out a party to a suit, he was liable to the lowest amercement;¹ and for abusing a party, to a fine of double the amount. If he put irrelevant questions to a party, wilfully omitted to ask a pertinent question, did not note down what he heard in reply to his queries, tutored or provided a party with his previous statements, he was fined the middlemost amercement. If he inquired into unnecessary circumstances, caused delay by such inquiry, postponed work on flimsy pretexts, tired the parties out of court by his dilatoriness, misled them, helped the witnesses with clues, or resumed the work already disposed of, he was punished with the highest amercement. If he committed any of the offences a second time, he was fined double the amount and dismissed.

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¹ For the three kinds of amercement, see Bk. III, साहसम्, p. 192.

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For an unjust fine, a धर्माध्यक्ष or प्रदेशा was fined double the amount or eight times the excess of the amount over the prescribed limit, according to the nature of the offence. If a corporeal punishment were unjustly inflicted, he was condemned either to the same punishment or to the payment of twice the amount fixed in lieu of that kind of punishment. The judicial officer who brought to naught a good case or helped to concoct a false one was fined eight times its value.

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The scribe who took down the statements of the parties was liable to the following punishments for negligence or misconduct. If he wilfully omitted to note what was said, noted down what was not said, left out what was badly said, or rendered diverse or ambiguous what was well said, he was liable to the first amercement or to any other punishment proportional to his guilt.

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Care was taken to prevent the escape of a culprit from the law court (धर्मास्थीय), the hâjat (चारक), or the prison (बन्धनगार), as well as to prevent the abuse of the jailor’s authority.¹

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¹ See Bk. IV, सर्वाधिकारचरित्रम्, pp. 222, 223.

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It is not clear who tried the judges for their misconduct. It seems most likely, and it is also consonant with the ancient Hindu law-codes, that the king or his associate judges tried them.²

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² See J. R. A. S., vol. ii, p. 198—“On Hindu Courts of Justice.”

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Certain latitude seems to have been given to the superintendents of the several State departments to summarily dispose of certain kinds of offences committed by their subordinates. How far their power extended in this direction is not clearly defined, but it seems to have been confined to the offences done by the subordinates in their course of business.

Linked texts (3)

Kauṭilīya Arthaśāstra — Kauṭilya, Sanskrit
Mānava Dharmaśāstra — Manu & Bhṛgu, Sanskrit
Yājñavalkyasmṛti — Yājñavalkya, Sanskrit