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Local Government in Ancient India c10: Chapter IV. Legislation

Local Government in Ancient India c10

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Chapter IV. Legislation

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We have considered the industrial and commercial functions of the ancient Indian local bodies and shall now consider their legislative independence and activities. We have already seen that in our early literature, Vedic, Epic, and Pāli, these local bodies (for convenience termed guilds) already appear as developed institutions, possessed of a distinct organization of their own, claiming and commanding a recognized position of importance and influence in the state. That position, accordingly, we find well-defined in our later legal literature,¹ which recognizes their distinct, and practically independent, political status and also indicates their constitutional relations with the state. If the power of independent legislation is one of the criteria of an independent political status, it is amply fulfilled in the case of these local associations. They developed a distinct body of laws or by-laws to regulate their work and activities, the existence and authority of which are clearly affirmed and admitted by our law-books. Thus Gautama¹ [about 500 B.C.] states (XI. 20): ‘Laws of countries, castes and families which are not opposed to the (sacred) texts have also authority’, to which he adds: ‘Cultivators, traders, herdsmen, money-lenders, and artisans (have authority to lay down laws) for their respective classes’ (XI. 21). He further states (XI. 22): ‘Having learned the (state of) affairs from those who (in each class) have authority (to speak he shall give) the legal decision’.² This means, as Haradatta explains, that the king’s legal decision must be given in accordance with that which is declared to be the established law in each community by its authorized and accredited spokesmen and representatives, who are entitled to define it on their behalf. Manu also is quite explicit on the point: ‘A king who knows the sacred law must inquire into the laws of castes (*jāti*), and districts or peoples (*jānapada*), guild-laws, and family-laws’³ (VIII. 41). Again, ‘What may have been practised by the virtuous, and by such twice-born men as are devoted to the law, that he shall establish as law, if it be not opposed to the laws of countries, families, and castes'¹ (VIII. 46). This shows that the king was bound to respect the laws of these various local bodies or groups and could not enforce his own law without reference to them—provided such local laws did not run counter to the sacred law. As 'laws of districts' the commentators instance those of the Kuru, Kāpiśa or Kāśmīra countries or of the natives of different countries.² In the case of a conquered country the victorious king must also, according to Manu, make authoritative the lawful customs of the conquered just as they are stated to be³ (VII. 203). The authority of local laws is also affirmed by Āpastamba⁴ (II. 15, 1) and Baudhāyana⁵ (I. 1, 2, 6). The opinion of Manu is reiterated by Vasiṣṭha⁶ (I. 17): 'Manu has declared that the laws of countries, castes, and families (may be followed) in the absence of (rules of) the revealed texts.’ Again (XIX. 7)¹: ‘Let the king, paying attention to all the laws of countries, castes, and families make the four castes (*varṇa*) fulfil their particular duties.’ In this passage the word *jāti* is explained by one commentator as a tribe, to distinguish it from *varṇa*, meaning class or caste. The *Mahābhārata* (XII. 36, 19) has the utmost contempt for those who violate the laws of their caste or ‘*śreṇī*’, country, or family. According to Kauṭilya (II. vii) the king’s accountant must enter in his books the laws, the manners, and customs of castes, families, guilds, and localities.

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¹ See the treatment of Hindu guilds by Hopkins in his *India, Old and New*.

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¹ देशजातिकुलधर्माश्चाम्नायैरविरुद्धाः प्रमाणम् । कर्षकवणिक्पशुपालकुशीदिकारवः स्वे स्वे वर्गे । [II. 2, 20. 21. Ānandāśrama ed.]

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² तेभ्यो यथाधिकारमर्थान्‍प्रत्यवहृत्य धर्मव्यवस्था [II. 2, 22. ibid.].

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³ जातिजानपदान्धर्मान् श्रेणीधर्मांश्च धर्मवित् । समीक्ष्य कुलधर्मांश्च स्वधर्मं प्रतिपादयेत् ॥

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¹ सद्विराचरितं यत्स्यात् धार्मिकैश्च द्विजातिभिः । तद्देशकुलजातीनामविरुद्धं प्रकल्पयेत् ॥

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² “कुरुकापिशकाश्मीरादिदेशौ” (मेधातिथिः) । “यथा दाक्षिणात्यानां मातुलसुतापरिणयनम्” (नन्दनः), i. e. 'e. g. the marrying of the daughter of the maternal uncle as prevalent among the Dākṣiṇātyas (people of the Deccan).'

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³ प्रमाणानि च कुर्वीत तेषां धर्म्यान् यथोदितान् ।

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⁴ एतेन देशकुलधर्मा व्याख्याताः ।

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⁵ तत्र तत्र देशप्रामाण्यमेव स्यात् ।

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⁶ देशधर्मजातिधर्मकुलधर्मान् श्रुत्यभावादब्रवीन्मनुः ।

c10.13

¹ देशधर्मजातिधर्मकुलधर्मान् सर्वानैवैताननुप्रविश्य राजा चतुरो वर्णान् स्वधर्मे स्थापयेत् ।

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It may be noted in this connexion that the authority of customs or local laws is recognized as early as the time of the *Ṛg-veda* which enjoins adherence to the usages of the forefathers (*Ṛv.* VIII. 30, 3). Thus the recognition of popular customs as a source of substantive law by the Smṛtis is based on the authority of Śruti. Hence Bṛhaspati (quoted in the *Vyavahāramayūkha*) expressly defines Vyavahāra or civil law as being ‘the decision which is given according to the customs of the country (Deśasthiti) reasoning and the council of the Naigamas (the lay public)’. Bṛhaspati calls this mode of decision *caritra* (usage). In fact an *ācāra* accepted by a community becomes its laws or Dharma.

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But if the king had to respect the laws of the local bodies he had also to see that the members thereof observed their own laws, violations of which he was bound to punish. Thus Yājñavalkya says (I. 361): 'The king must discipline and establish again on the path (of duty) all such as have erred from their own laws, whether families, castes, guilds, associations, or people of certain districts.'¹ Viṣṇu (III. 2)² also holds that the duty of the king is to keep the four castes and the four orders in the practice of their respective duties. Nārada also has the same opinion (X. 2): 'Among heretics, Naigamas, guilds, corporations, troops or companies of soldiers, assemblages of kinsmen and other (associations) the king must maintain the usages settled among them, both in the fortified towns and in the open country'.³

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¹ कुलानि जाती: श्रेणीश्च गणान् जनपदांस्तथा । स्वधर्मचलितान् राजा विनीय स्थापयेत् पथि ॥

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² प्रजापरिपालनम् वर्णाश्रमाणां स्वे स्वे धर्मे व्यवस्थापनम् ।

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³ पाषण्डिनैगमह्नेणीपूगव्रातगणादिषु । संरक्षेत्समयं राजा दुर्गे जनपदे तथा ॥ **कर्म कुर्वतां समूहः श्रेण्यः**); *pūga*, association of men of both different castes and crafts (**तेषामेव भिन्नजातीयं कर्म कुर्वतां समूहः**); *vrāta*, association of kinsmen, connections or cognates, also termed *kula* (**ज्ञातिसम्बन्धिबन्धूनां समूहः**); *gaṇa*, a *federation* of all these associations, which is thus an assembly of a most composite character (**एतेषां पाषण्ड्यादीनां व्रातान्तानां समूहः गणः ।**).

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The *Vyavahāramayukha* gives the following explanation of these terms; '*pāṣaṇḍins*, persons pursuing commerce and other occupations (*vāṇijyādi*) and deviating from the Vedic ways of life (*Veda-mārga-virodhinaḥ*); *naigamas*, those who do not act contrary to the Vedas; *śreṇī*, association of men belonging to different castes but following a common craft (नानाजातीयानामेकजातीयं

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Lastly, Vasiṣṭha also holds that the king is to make the four castes or classes fulfil their respective particular duties (XIX. 7, quoted above).

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As a necessary corollary to the above power the king had the authority to enforce by means of adequate penal measures the due respect for guild-laws, guild-compacts, or contracts and agreements entered into by individual members with their associations. Manu (VIII. 221) says: 'A righteous king shall apply this law of fines in villages and castes (*jāti*) to those who break an agreement'.¹ Again (VIII. 219). 'If a man belonging to a corporation inhabiting a village or a district, after swearing to an agreement breaks it through avarice, (the king) shall banish him from his realm'.² The agreement is thus defined and explained by Bṛhaspati: 'When (the people of) a village or province execute a deed of mutual agreement, the purpose of which is not opposed to the interests of the king,

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¹ > **एतद्दण्डविधिं कुर्याद्धार्मिकः पृथिवीपतिः ।**

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² > **यो ग्रामदेशसंघानां कृत्वा सत्येन संविदम् ।**

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**ग्रामजातिसमूहेषु समयव्यभिचारिणाम् ॥**

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**विसंवदेन्नरो लोभात्तं राष्ट्राद्विप्रवासयेत् ॥**

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and in accordance with sacred law it is designated as a deed of agreement' (VIII. 9).¹ Again: 'A compact formed among villagers, companies of artisans and associations is called an agreement; such an agreement must be observed both in times of distress and for acts of piety' (XVII. 5).² The distress is defined (ibid. 6) as that due to fear of robbers and rogues [*cāṭa*, which means a 'cheat' according to Monier Williams quoting Yājñ. I. 335, but a 'soldier' in the phrase *cāṭabhaṭa* occuring in an inscription as explained by Fleet (*Gupta. Ins.* p. 98), and in the expression *cāra-bhaṭa* in *Harṣacarita*, VII]. Such occasions call not for individual but for corporate action according to agreement.

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¹ ग्रामो देशश्च यत्कुर्यात् सत्यलेख्यम्परस्परम्। राजाविरोधि धर्मार्थं संवित्पत्रं वदन्ति तत्॥

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² ग्रामश्रेणिगणानां च सङ्केतः समयक्रिया। बाधाकाले तु सा कार्या धर्मकार्ये तथैव च॥

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Nārada also has the following: 'The aggregate of rules settled among heretics, followers of the Veda, (Naigamas), and others is called *samaya* (compact or established usage)' (X. 1).³ It would thus appear that the agreement herein defined refers to the fundamental agreement on which the association rests, the basis or constitution of the guild, rather than to temporary and minor contracts, the deliberate transgression of the compact being visited accordingly with the exemplary punishment of banishment. Thus Viṣṇu says : ‘He who violates their established rule shall also be banished’ (V. 168).¹

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³ पाषण्डिनैगमादीनां स्थितिः समय उच्यते।

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¹ १ **तत् संविदं यश्च लंघयेत् ।**

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Yājñavalkya expressly lays it down as the duty of the king to keep the guilds to their constitutional pacts (II. 192).² Nārada likewise imposes upon the king the duty of having the constitution followed by the various public bodies. The constitution is to be regarded as specially binding and inviolate, because, as explained by Bṛhaspati (ibid. 9), it has to be agreed to beforehand by the members declaring their adhesion to it by the ordeal of sacred libation, (see *Nārada*, I. 327 ff.), or by their promise in writing or before Madhyasthas or arbitrators.

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² २ **भेदं चैषां नृपो रक्षेत् पूर्ववृत्तिं च पालयेत् ।**

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