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The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4: Section 6. The Jury System (Ubbahika)

The Political Institutions and Theories of the Hindus: A Study in Comparative Politics c10.s4

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Section 6. The Jury System (Ubbahika)

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Modern liberty, both political and judicial, has, theoretically at any rate, one of its greatest corner-stones in the trial by jury. It consists in the right to be judged by one’s peers. As such its origins can be traced to the primitive Frankish, Teutonic and Anglo-Saxon customs. But the definite beginnings of the institution, as it obtains in Europe, are to be sought in the Civil and Criminal Juries of England in the twelfth century. To a certain extent its crude origins are furnished also by the *Vehm-gerichte* or Fehmic Courts of the thirteenth century which were developed in the German-speaking lands (viz. Westphalia) between the Rhine and the Weser.¹ India’s political experience seems, however, to furnish the first land-marks of the system among the Indo-European races.

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¹ Holdsworth’s *History of English Law*, Vol. I, 135, 145, 149, 156, 158; Walsh’s *Thirteenth*, 368—369; Article on “Jury” in Lalor’s *Cyclopaedia of Political Science*, Vol. II, 653—662. It is well known how List in his *National System of Political Economy* attaches an extraordinary importance to the jury system in its effects on the British political mentality.

1. The Jury as a Hindu Institution

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The oldest historical date for the institution of the Hindu jury is B. C. 443, a hundred years after the death of Śâkya the Buddha. The occasion was brought about by the “ten heretical practices” of Vesali which were submitted for examination to a committee of eight presided over by a judge. In conformity with a rule established by Śâkya, one Revata proposed to refer the matter to a jury. He chose four *bhikkhus* (monks) from the east and four from the west. This choice was formally approved by the *Samgha* (Ecclesiastical Council). There was added to the arbitrators, as regulator of the sittings, a monk named Ajitâ.²

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² Poussin’s “Buddhist Councils” in the *Ind. Ant.*, 1908, p. 85.

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The *idea* of the jury is therefore at least as old as Śâkya (sixth century B. C.). Evidently it was an well-established institution in the public law of his time. By advocating and adopting the system for the settlement of disputes in ecclesiastical matters this spiritual doctor gave but another evidence of his strong civic and legal sense. “If, O *bhikkhus*”, said he on one occasion, “whilst the case is being inquired into by those *bhikkhus*, pointless speeches are brought forth, and the sense of any single utterance is not clear, I enjoin upon you, O *bhikkhus*, to settle the case by referring it to a jury or commission (*ubbahika*).”¹

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¹ *Chulla*, IV, 14, 19.

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Not everybody could be elected on the jury. The *Chulla-vagga* mentions ten qualifications of the juror. It was held, among other things, that the *ubbahika* must be “competent to point out both friends and foes, to get them to understand a thing, get them to see it and recognize it, and able to pacify them”. Secondly, the person to be chosen on the jury must be “clever in judging both as to the origin and as to the settlement of disputes”. And thirdly, he must “under-stand legal questions, the origin thereof, the close thereof, and the way that leads to the close thereof”.²

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² *Ibid*, IV, 14, 19.

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The method of appointing a jury was also clearly described. First, the *bhikkhu* was to be asked as to whether he was willing to undertake the office. Then some discreet and able monk was to address the *Samgha* thus: “May the venerable *Samgha* hear me ***. Let it appoint *bhikkhus* of such and such a name, and of such and such a name on a committee. This is the motion ***. The *Samgha* appoints *bhikkhus* of such and such names on a committee to settle the case.”³

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³ *Ibid*, IV, 14, 20.

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Traces of the jury system are to be detected in Maurya India. For, by a ruling of Kautilya in the *Artha-śâstra*, disputes concerning boundaries, fields and “miscellaneous hindrances” were to be decided by elders of the neighborhood. If they were divided in their opinions decision was to be given in favor of the opinion of the honest *vahavah*, i. e. the “many” or the majority.⁴ There is here an anticipation of the Grand Assize of Henry II by which the claimant to disputed lands could demand the nomination of four knights of the neighborhood. The Kautilyan principle is also the same as that of the Assize of Northampton by which the property due to heirs was determined in the identical manner.

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⁴ The interpretation of *vahavah śuchayah* (vide the *Artha*, Bk. III, Ch. IX) in Jayaswal’s “Introduction to Hindu Polity” in the *Mod. Rev.*, June 1913, is more accurate than that in Shamasastry’s translation (pp. 214–215). For the law of the majority see also Śukra, I, lines 732—733. Bosanquet is certainly more chauvinistic than philosophic when he naively makes the statement that the principle of the majority is “found for the first time as an everyday method of discussion in Greek political life” (*Phil. Theory of State*, pp. 45). cf. *Pos. Back*, II, p. 19.

2. Hindu Ideas about the Jury

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The institution could not but influence the political thinking of the philosophers. Śukra and other writers on the theory of the constitution have therefore naturally been the spokesmen of the philosophy that underlies the English Assizes and the Fehmic Courts of Westphalia. The principle of trial by one's peers is thus stated in the *Śukra-nîti*: ¹ "The foresters are to be tried with the help of foresters, merchants by merchants, and soldiers by soldiers." Śukra lays down also the principle of local judges for local cases in the following terms: "In the village the cases are to be settled by persons who live with both parties, i. e. by neighbours. Those persons are the best judges of the merits of the case who live in the place where the two parties stand, and where the disputed matters and grounds of quarrel exist."²

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¹ IV, v, lines 44, 45.

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² IV, v, lines 45—47.

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In Hindu thought merchants³ appear to have been in high demand as qualified to serve on the jury. Their strong commonsense was evidently their chief merit, or perhaps they were likely to have legal knowledge. In the *Śukra-nîti* even the audience at a court of justice is regarded as part of the jury. In regard to the man who happens to know the law we are told that "one can speak, whether appointed or not, because he speaks the voice of God who knows the law".⁴ And we are also asked to entertain respect for the layman's commonsense view of the case. For, an extremely radical view is adumbrated by Śukra when he declares that "either one should not come to the court or should speak truthfully. That man is a sinner who keeps silence or utters falsehood".⁵

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³ IV, v, 52.

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⁴ IV, v, lines 53, 54; see also Nârada, *Legal Procedure*, III, 2.

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⁵ IV, v, 55, 56.

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Altogether, then, in Śukra we have to recognize a theorist in regard to the institution of which the practical regulations had been laid down by Śâkya for his Congregation. And if in the absence of evidences from inscriptions or contemporary writings it be safe to take the passages in the *Śukra-nîti* as describing the actual judiciary in certain states of India in any period of its history, the jury must be regarded as an essential feature of the system of Hindu tribunals.⁶

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⁶ Banerjea's identification of the *sabhyas* (members of a judicial assembly i. e. assessors) with the jury (*Public Adminis*, p. 143) is not acceptable.

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