Theory of Government in Ancient India (Post-Vedic) c8.s5.21

c8.s5.21

Professional lawyers are not mentioned by Kautalya, but the importance of witnesses is fully realised. Not that the absence of witnesses implied the dismissal of a case. For instance, labourers could sue their employers for non-payment of wages even if they could produce no witnesses. But, on the whole, the practice of evidence was so general that Kauṭalya formulates a regular code on the subject. Certain relations, such as a wife's brother or a helpmate, who could not be expected to tell the whole truth, were generally debarred from the witness-box. Nor were creditors or debtors, poisoners or dependents, enemies or convicts, to be called in. Certain busy people, the king, government servants, scholars and poor peasants, were exempted from the duty of bearing testimony, except, of course, where they were directly concerned. A similar privilege was extended to women, probably on account of their growing seclusion. Lepers, outcastes, and followers of mean avocations, were not considered worthy of bearing witness. But none of the exemptions and exclusions was pressed to the utter detriment of justice. In cases of rape, assault, theft, and so forth, all, except the wife's brother, helpmate, and the enemy, came as witnesses. Then there was the final proviso that except the king or ascetics, any man or woman presumed to possess secret knowledge of a transaction, could be cited before the Court. As the witnesses entered, they were sworn in before Brāhmaṇas, before vessels of water, and before fire, to speak the truth. A Kṣatriya or a Vaiśya should be solemnly informed, "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 shouldst speak falsehood)." A Śūdra should be given to understand that "all thy religious merit will go to the king, and all the sins of the king will come to thee (if thou shouldst utter a lie), and moreover, thou wilt be punished. Enquiry will be made as to what has been heard." The plaintiff, the defendant, and the witnesses all should be subjected to a searching cross-examination, during which the judges were closely to observe their behaviour. Some of them broke down. For example, some shifted from point to point, and introduced irrelevant matter. Some recanted or contradicted themselves, or suddenly broke off. Others contradicted their own witnesses, endeavoured secretly to talk to them, or desired to consult a third party. All this was counted an offence and suitably dealt with. If witnesses perjured collusively for more than a week, they were fined twelve paṇas. If they persisted in this course for more than three fortnights, they had to pay the amount in question in a monetary case. If the conduct of the witnesses roused any serious suspicions, the Court held them to answer.¹ Witnesses receive sumptuary and travelling allowances, which in monetary cases are not to exceed one-eighth of the amount in question. These expenses are to be defrayed by the losing party. The multiplicity of witnesses tended to cause some suspicion. It was felt that much inconvenience would be avoided if it was possible to get three witnesses who were approved by both parties, or who were admittedly pure and trustworthy.²