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Vada in Theory and Practice: Studies in Debates, Dialogues and Discussions in Indian Intellectual Discourses c9.s3: Debates in Dharmaśāstras

Vāda in Theory and Practice: Studies in Debates, Dialogues and Discussions in Indian Intellectual Discourses c9.s3

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English

Debates in Dharmaśāstras

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The Smṛtis (law books) are of two types — Arthaśāstra and Dharmaśāstra. Books under the former deal with diplomacy, governance and management. Books under the second category also deal with the issues of politics and governance, etc. but they are more concerned with ethical norms, codes of conducts and rites for purification. The Smṛti texts are prescriptive in nature, but they also take up vital issues related to human destiny.

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One of the questions taken up by some authors of Smṛti texts is about a person’s dependence on *daiva* (fate) and *puruṣakāra* (industriousness). Yājñavalkya refers to a few divergent views here — Daivavāda (fatalism), Svabhāvavāda (naturalism), Kālavāda (pessimism) and Puruṣakāravāda (activism). In his opinion, success in life depends on *daiva* and *puruṣakāra* both. Even *daiva* is created by a man by his industriousness of the past life. Just as a chariot will not move with one wheel only, the same way without industriousness, even the fate will not materialize.¹² Which is more powerful — a man’s industriousness or his fate — this question is discussed as a debatable issue by several authors and poets in Sanskrit literature.

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The contradictory views in these texts on legal matters, laws of inheritance, women’s rights and marriage, etc. reflect the differences of opinion and receptiveness of debates. Yājñavalkya says that in case of divergence of opinions or difference in prescriptions, decision should be taken by *nyāya*. *Nyāya* here comprises of three facets — the practices of the elders who are reliable, the prevalence and the precedence. But Yājñavalkya also upholds the prominence of *dharmaśāstra* over *arthaśāstra*.¹³

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Like the parliaments, judicial courts have also functioned as platforms for very lively debates on social, moral and ethical issues. Also, techniques for debates in these courts were also evolved. The Smṛti texts furnish in-depth analysis of the techniques and methodology of debates in judicial courts. The terms *vādī* and *prativādī* are used for the petitioner and the respondent. Alternately they are also called *arthī* and *pratyarthī*.¹⁴ The model of *vāda* is taken up, *pratijñā* (statement), *sādhana* (proof, reason, probans), *pramāṇa* (evidence), *sādhya* (probandum), *vivāda* (dispute) and *siddhi* (success) — these are the terms the authors of law books have used to describe the judicial proceedings.¹⁵

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Nārada says that for all kinds of *vyavahāras* (cases in the courts) the essence lies in *pratijñā* (statement of the disputant, the affidavit of the petitioner). If *pratijñā* is lacking, then *vādī* (disputant, petitioner) will suffer, and if it is solid, he can win the case.¹⁶

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The gamut of these terms as well as the methodology for the conduct of judicial proceedings are based on the techniques of *vāda*. *Bṛhaspatismṛti* 1.17 lays down four steps of judicial process involving debate — (i) *pūrva-pakṣa* (the petitioner’s view), (ii) *uttara-pakṣa* (reply by the respondent), (iii) *kriyāpāda* (specifying the action to be taken), and (iv) *nirṇaya* (judgement). The reply under (ii) has been divided by *Śukrasmṛti* into four categories:

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• *Satya* (factual) — it is also called *pratipatti*. It involves an acceptance of the points submitted by the petitioner.
• *Mithyā* (false) — is the negation of the points raised by the petitioner.
• *Pratyavaskandana* — partial acceptance with a view to denounce the case as presented by the petitioner. This is done by adding rejoinders.

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• *Pūrvabhyāsavidhi* — a method involving citations of previous arguments and victory acquired by the respondent in the same or similar cases.

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This structure is followed even today in submitting the counter-affidavits in the courts of law by the advocates representing the respondent.

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The tactics of *chala* (cheating), *jāti* (avoiding reply) and *nigraha-sthānas* (clinchers), as defined by the authors of the philosophical texts, were also practised in *dharmasabhās* (law courts). Nārada condemns the conduct of *vāk-chala* (cheating by speech).¹⁷

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Kātyāyana (16-40), Bṛhaspati (2.8-9) and Śukra also discuss certain defects in the language or the reports prepared. Śukra defines these defects as under:

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• *Anyārthaṁ* (giving a sense other than what is intended),
• *arthahīnaṁ* (nonsense),
• *pramāṇāgamavarjitaṁ* (lack of proofs),
• *hīnādhikaṁ* (having omissions and commissions), and
• *bhraṣṭaṁ* (corrupted statement).

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