VYAVAHARA
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Origin – According to Narada with the decline of practice of dharma violation of the rights of individuals became frequent. To prevent such violations society invented a machinery for the enforcement of law
According to Manu civil or criminal injury is the result of some actions, which spring from the following (Chapter no. 12)
1) Mind 2) Speech 3) Body action
Manu says among these three mind is the chief instigator of all actions. According to him sin originates in the mind and it causes three sinful mental actions. They are
- Coveting the property of others
- Undesirable thoughts
- Following of evil doctrines
Sinful mental action leads to physical action, which may cause civil or criminal injury. Such physical action can be of two forms
- Evil verbal action
- Evil bodily action
Evil Verbal actions can be in four ways
- Speaking untruth/false wood
- Using filthy language
- Scandal (Creating tales about others)/ defamation.
- Talking ill of others.
Evil bodily action can be of three ways
- Taking undue share.
- Causing injury to living beings – Hurt.
- Engaging in illicit inter course with the wife of another man – adultery (Manu Chapter 3-7)
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Tridandin – Manu says that there are three kinds of control. They are:
- Manodhanda – It means the control of human being over his thoughts.
- Vagadanda – It means the control of human being over his tongue (Speech)
- Kayadanda – It means the control of human being over his body.
A person who is having control over these three are called Tridandy. Manu says such a person enjoys complete success in his life (Manu -Chapter XII 10-11)
Definition of Vyavahara
Etymologically the word Vyavahara is derived from the routes Vi, Ava and Hara. Vi means various. Ava means doubts. Hara means removing.
Therefore the word Vyavahara means removing of various doubts. It also means “ Legal proceedings in a court of law”.
The branch of law which regulates the rights and liabilities of parties in a legal proceeding is called vyavaharapada. In the modern world vyavahara is similar to enactment.
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Various topics of vyavahara.
According to Manu there are 18 topics of vyavahara which existed in ancient India. They are:
- RUNADHANA – Payment of debts
- NIKSHEPA – Deposits
- ASWAMY VIKRAYA- Sale effected by a person who is not having the ownership of the property (swamy means owner, aswamy means ownerless)
- SAMBHUYA SAMUTHANA – Partnership/Joint undertaking
- DATTASYANAPAKARMA – Redemption of gift
- VETANADHANA - Payment of wages
- SAMVIDYADIKARMA – Violation of convention of guild and Corporation
- KRAYAVIKRAYANUSAYA – Sale and purchase
- SWAMYPADA VIVADA – Dispute between master and servant
- SIMAVIVADA – Boundary dispute
- VAKPARUSHYA - Defamation
- DANDAPARUSHYA – Assault, Hurt etc.
- STEYA – Theft/ stealing
- SAHASA – Dacoit/murder – Offences by violence
- STRISANGRAHANA- Rape, adultery etc.
- STRIPUMDHARMA – Conjugal rights and duties
- VIBHAGA - Partition
- DYUDTASAMAHVAYA – Betting and Gambling
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Classification of Vyavahara.
Manu could not classify law into civil law and criminal law. How ever vyavahara has been divided into two branches by various writers who followed Manu. Thus vyavahara generally classified into two kinds:
1. ARTHASAMUTHANI AND 2. HIMSODHBHAVANI
ARTHASAMUDHANI – means vyavahara arising out of wealth or property. There are 14 topics arising out of vyavahara relating to Arth.
- RUNADHANA – Payment of debts
- NIKSHEPA – Deposits
- ASWAMY VIKRAYA- Sale effected by a person who is not having the ownership of the property (swamy means owner, aswamy means ownerless)
- SAMBHUYA SAMUTHANA – Partnership/Joint undertaking
- DATTASYANAPAKARMA – Redemption of gift
- VETANADHANA - Payment of wages
- SAMVIDYADIKARMA – Violation of convention of guild and Corporation
- KRAYAVIKRAYANUSAYA – Sale and purchase
- SWAMYPADA VIVADA – Dispute between master and servant
- SIMAVIVADA – Boundary dispute
- STEYA – Theft/ stealing
- STRIPUMDHARMA – Conjugal rights and duties
- VIBHAGA - Partition
- DYUDTASAMAHVAYA – Betting and Gambling
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HIMSODHBHAVANI – means the litigation arising out of injury or violence. There are 4 topics arising out of injury/violence.
- VAKPARUSHYA - Defamation
- DANDAPARUSHYA – Assault/hurt
- SAHASA - Offences like robbery, dacoit and murder
- STRISANGRAHANA – Rape and adultery
PRAKEERNAKA (Miscellaneous)
Prakeernaka means the matters not covered by the above mentioned 18 topics. Prakeernaka of Kartiyana smrithy contains the duties of Kings, ones own duty etc. Prakeernaka can be classified into civil miscellaneous matters and criminal miscellaneous mattes.
LAW RELATING TO CONTRACTS
Smriti text does not contain separate topics dealing with contracts. Topics dealing with Runadhana, Nikshepa, Aswamivikraya, Dattaswanapa -karma etc.
Parties to the Contract: According to Manu the following categories of persons cannot entire into a valid contract.
- Poganda (infants or minors)- A child up top the age of 8 years is considered as an embryo and a child between 8 years and 16 years is called Poganda. Smriti text says that an infant means a person who has not attained the age of 16 years. He cannot enter into a valid contract.
- Dependant
- Intoxicated persons
- Cripple
- Very old person
- Persons who are not authorized by the party on whose behalf he enters into contract (Unauthorized agent)
Kaudilya says that in addition to the above persons, Abhisasta (Convicted person) is also not competent to entire into a contract.
1.POGANDA – A child up top the age of 8 years is considered as an embryo and a child between 8 years and 16 years is called Poganda. Smriti text says that an infant means a person who has not attained the age of 16 years. He cannot enter into a valid contract.
Karthiyana Smriti says that money lent to infants, women and slaves cannot be recovered. According to Narada smriti dependants include sons, slaves and wife (woman).
Kaudalya enlists the following categories of persons with in the ambit of dependant.
- A son whose father is alive.
- A father whose son has become the kartha of the family.
- Father’s mother
- Younger brother of an undivided family.
- An out cast brother.
- A married woman whose husband or son is alive.
- Slaves.
- Hired labourer
Karthiyana smriti provides that debt incurred by wife, mother, slave or son for fulfilling the necessity of family is valid and binding on the kartha of the family while the kartha is at abroad, even though it is incurred without the consent of the kartha.
Yajnavalkya smriti says that debt incurred by the wife of the headsman, washer man, dancers etc. are binding on their husbands. Similarly in some situations contract entered into by a woman, dependent, son would be binding on the husband, master and father respectively. This chapter was borrowed and incorporated in section 68 of the Indian Contract Act 1872. Accordingly if necessaries are provided to a minor, lunatic etc. the supplier can recover the cost of the sale from the property of such persons. In Viraswamy Vs. Appaswamy (I MAD. HC. R.; 375 at p.379) it was held that in order to attract liability on the part of husband in respect of a contract entered into by his wife, she must be living with her husband.
10.09.2006
The concept of Rta has its root in ancient Indian legal philosophy. Its traces can be found in Vedas and dharmasastras. The concept of Rta can be explained under the following three headings:
- Rta as depicted in Rgveda.
- Interpretation of Rta.
- Influence of Rta on justice.
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1.RTA AS DEPICTED IN RGVEDA.
Rgveda uses the word Rta with different meanings. However the general meaning attributed to the concept of Rta in Rgveda is ‘order of the society’.
Rgveda says among the various creations of the universe, Rta is supposed to be the first creation. In one context Rgveda says Lord Vishnu is the embryo of Rta. In another context it says that varuna and Mitra have acquired their mighty powers through Rta. Similarly it says that Rta is a distant place from where Marut (Wind) gets its origin. Rgveda also says rivers (Sindus) follow the Rta of Varuna. In one context the Rgveda depicts Rta as a chakra (wheel), which revolves round the sky with 12 spokes. The Veda describes dawn as the daughter of Heaven, which also follows the path of Rta.
2. INTERPRETATION OF RTA.
Various thinkers west and east interpreted the concept of Rta in different ways.
1. Bloomfield says that sages of the Vedic period used the word Rta to denote order and harmony in the society. Thus Rta generated peace and it served as the basis for moral law, which brings protection in life.
- Some writers explain Rta as independent authority whereas some others depicted it as possession of some God. In the pawranic period Rta was interpreted by some sages as ultimate truth. Thus in the ancient Indian society the term satya represented ordinary truth whereas the term Rta denoted truth in the Paramarthik sense (i.e. truth in the highest order)
- The philosophy of St. Augustine contains a concept “PAX” which is similar to the Indian concept of Rta. The word PAX denotes not mere peace, but “ that which bring peace”. This concept of pax contributed by St. Augustine became an essential part of medivian philosophy.
- In ancient Indian society Rta was also interpreted as absolute reality, eternal law or moral order set for men. The Indian concept of Rta resembles with the Greco-Roman concept of stoicism. Stoicism provides that there is a universal force, which pervades all the creations of the universe. The ancient Indian sages were of the view that Rta furnished a cosmic energy similar to the cosmic rays, which pervades the universe.
- V.C.Sarkar is of the view that Rta is based on two aspects. According to him in one aspect it is the personification of natural phenomena as Gods. In other aspects it indicate order, uniformity and regularity in nature.
- Similarly according to Radhabindpal the concept of Rta has two features. They are certainty and immortality. According to him the laws should have a purpose based on the concept of Rta. Thus the purpose of law should not be mere material benefit. But here should also be emphasis on ethico-juridical relations.
- According to P.V.Kane Rta furnishes a law, which is imperative and immutable. He says that this concept of Rta operates independently of the will of man. Kane also interprets Rta as something, which has been applied to Vedic sacrifices. These sacrifices were be made on the basis of certain prescribed formalities. If those formalities were adhered to, certain evil consequences were expected. Kane also interprets Rta as a force, which derives human beings to act accordingly to the universal principles of truth.
- Dr. S. Radhakrishnan also interpreted the concept Rta. According to him, Rta has got two aspects. It indicates eternal law and absolute reality, which cannot be changed.
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3.INFLUENCE OF RTA ON JUSTICE
In ancient India the concept of Rta could contribute much in shaping the theory of justice.
17.9.06
VARNA AND ASRAMA
Varna means description and term Asrama means phases or stages. According to ancient Indian philosophy stages in life are 4 and they are:
1. Brahmacharya –It means studentship.
2. Grihasta – It means household activities. In this stage man has to look after his wife and procreate children.
3. Vanaprastha – In this stage man can relieve from household Dharmas and can get prepared for the next stage.
4. Sanyasa – In this stage man renunciate the whole world and he becomes the property of whole world. At this stage man is having no duty to anybody.
The concept of case system can be compared to nuclear energy. That is it has its own merits and demerits based on the manner of use of it.
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CONCEPT OF SOCIAL WELFARE IN ANCIENT INDIA
According to S.D.Sharma, Varna is genesis and Cast is specious. Accordingly society was classified into four varnas on the basis of Karma (Duty) and not janma (birth).
In ancient Indian philosophy, the concept of social welfare worked out through the institution of Varnasrama dharma. I other words, cast became an instrumentality in the classification of society and for administration of justice.
How ever after the invasion of India by foreigners, the institution of varnas fell into bad hands. That means the concept of varnasrama was exploited for selfish purposes.
Even gods were classified according to their varnas. Thus vedic passages divided Gods into four categories as follows:
1. Brihaspathi and Agni are included in the category of Brahmana.
2. Indra, Yama, Soma and Varuna are included in the category of Kshatriya.
3. Rudras, Vasu, Viswadevas and Maruti are included in the category of Vaisya.
4. Pusana was included in the category of Sudra.
Dharmasastra says that if a person does not follow the duties of his Varna, he will cease to be a member of the particular Varna. Thus Patanjali says a Brahman has two main duties. They are Tapas and study of Vedas. If a Brahman does not follow these duties, he ceases to be a member of Brahmana Community.
Cast, which are the specious of Genesis Varna, were again divided into sub casts according to various occupations followed by the people. There were several other criteria for determining cast system. They are place of living, birth, race etc.
Smrities and Mahabharatha say that some of the foreign races which were originally Kshatriyas became sudhras because of their loose of contact with brahmanas.
VARNAS AND SOCIAL WELFARE IN ANCIENT INDIA (VRATA)
In ancient Indian society, though the King was the head of the administration of justice, he was not entrusted with the power to make laws. Such a function was entrusted with an independent authority. Similarly the King was also subject to the rule of law just like his subjects. However there was only one difference that King was entrusted with some additional duties and responsibilities. These additional duties and responsibilities were called Vrata.
Vrata – according to Max Muller, etymologically the word Vrat derived from the Sanskrit root Vr – which means to protect. The concept of Vrata is similar to the directive principles of state policy contained in part 4 of the Constitution of India. They contain the moral ideals for a welfare state.
Generally Vrata is of two kinds: (1) Self imposed Vrata, which is also called dharma, and (2) Duty imposed by superior authorities also called as Karma.
Even Gods are subject to the rule of prakriti (Law of nature) like other creatures of the world. How ever there is only one difference that they are on high spiritual plane.
The Vrata to be followed by King is something different. He has to take care of his subject just as gods do. Thus the following are the Vrata of King:
1. Indra Vrata – According to Manu as Lord Indra sends rain, let the king shower benefit on his kingdom. Manu suggests that everybody should be allowed to take part in the common welfare and none should be excluded arbitrarily as Lord Indra does not exclude any part of the world from the rain showered by him.
2. Maruta Vrata – According to Manu as the wind moves everywhere, let the king penetrate everywhere among the subjects through his spies. In modern world intelligence departments are performing the functions, which are the extension of this Vrata.
3. Ark Vrata – Manu says as the sun “during eight months” draws up the water with his rays, let the king draw taxes from his subjects. This concept of Manu is similar to cannon of convenience of Adam Smith and the right of the state to impose tax on its subjects.
4. Yama Vrata – Manu is of the view that as Yama at the appointed time subjects to his rule, both friends and foes let the king control all the subjects alike. This concept of Yama vrata is similar to the doctrine of equality enshrined in Article 14 of the Indian constitution.
5. Varuna Vrata – Manu Says that as Varuna binds a sinner with his ropes, let the king punish the wicked and wrong doers. Thus varuna vrata imposed a duty on the king to administrate criminal justice by inflecting punishment upon those who violates law.
6. Chandra Vrata – Manu says that king should perform his duty regarding social welfare like moon. As the people are delighted on seeing the full moon, his subjects should be happy on seeing him. That is he should ensure social justice to his subjects.
7. Agnya Vrata – Manu says that just like the fire is destroying the wicked people, king should suppress and punish the rebellions. To quote Narada “as the fire at an ordeal injures wicked man, the king should destroy wicked neighbours”.
8. Prthvi Vrata – According to Manu, as the earth support all created beings, let the king support all his subjects. Thus the king should not be impartial to any persons in the distribution of welfare to the people, as the earth support all without any discrimination.
9. CHARITY – An aspect of social welfare
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LIBERTY OF ACTION/ LIBERTY OF PERSONS (PURUSHARTHA) 24.9.06
In ancient Indian society each individual belonged to a particular varna and he was assigned with a particular duty. However each individual ignored the others and it was necessary to put restriction in the freedom of individuals through certain norms. But this restriction was necessary to protect the freedom of others. This kind of liberty of action through regulating the freedom of others is enshrined in the ancient Indian philosophy of Purushartha.
The system of varnasrama upholds the social aspect of justice whereas the concept of Purushartha upholds the individual aspects of justice
Comparison with the western concept.
Ancient Indian philosophers found spirituality as the basis of life. Westerns on the other hand tried to attain common luxuries of life. Indians on the other hand devoted their energy to discovery and solutions of problems of human beings. According to them there are four objectives of life namely:
1. Dharma
2. Artha
3. Kama
4. Moksha
Among these four objectives the first three are having social dimensions and the fourth one Moksha is having an individualistic dimension only.
The significant feature of ancient Indian philosophy was that it required human being to give equal importance to all the Purushartha. Manu says “ some say that virtue and wealth are the only good in life, others hold that artha (wealth) and kama (desire) are the highest good, some are of the view that virtue is the real good; dharma, artha and kama form combinely the welfare. It is the conclusion” (Manu II – 224)
Thus Manu is of the view that dharma, artha and kama are not mutually exclusive. That is, the proper approach is that all the three should be given equal importance.
Purushartha require people to perform their action for happiness. Happiness can be of two kinds. Psychological happiness and Physical happiness.
Now the question arises whether artha should be acquired according to the dictates of smrithi or according to the usages of the world. In this regard, Vijnaneswara is of the view that “ property acquired according to the usages of the world confers ownership.” Thus it is very clear that acquisition of wealth should be according to the usages of the world.
From the above discussion it can be concluded that artha or acquisition of wealth has got an important role in the development of the human personality. Every human being has the kama (desire/interest) to acquire the wealth. So our social system should provide proper opportunities to the individuals to satisfy their Kama. However the means adopted to satisfy the kama to acquire artha should be in accordance with dharma and that is the way to attain Moksha.
SHRI.AUROBINDO’S VIEW
According to ancient Indian philosophy individual is the center of legal theory. This concept is much different from that of the west. According to Shri. Aurobindo, man was given dignity by the vedantic thoughts and by the thoughts of classical ages of Indian culture. However western people believed that man is manufactured at birth by an arbitrary breath of the whimsical creature set under impossible conditions to get salvation (Shri. Aurobindo. The foundation of Indian culture 1972. p 98)
According to Shri. Aurobindo, man is identical with Transcendence from which he came. He has the spiritual capacity to reach a supreme and extra ordinary pitch of manhood. He can even become a free perfected semi-divine man called sidha. He can do more and reach a stage of cosmic consciousness and his spirit can become one with universe (God).
According to Shri. Aurobindo for attaining that stage people should come out from their limited ego and move towards real perfection.
According to Shri. Aurobindo, one dimension of personality consists of ethical and intellectual enrichment of human being. This is possible through the practice of strict discipline (dharma) and the details of the strict discipline is contain in his scripture. Moreover the concept of discipline ensures social harmony. The ancient law codes classified society into four varnas for the purpose of ensuring social harmony. Thus ancient lawgivers prescribe some rules of discipline (dharma) for each member of the society according to his capacity and requirement.
It is sad to say that in the present world kama and artha are expanding at the cost of the other two dharma and moksha.
Significance of Purushartha
Shri. Aurobindo says that if India requires development in the international level in the rightful and dutiful path, it has to humanize and spiritualize its laws and legal institutions. But the existing Indian legal system, which has its roots, in common law jurisprudence is almost baseless. We should work out the concept of Purushartha in the ancient Indian law codes and incorporate the principles of equality and liberty into our legal systems.
8.10.04
Vyavahara- Administration of Justice
For the protection of citizens and for its own protection, it becomes necessary for the state to maintain law and order.
Brhaspathi says that the king should not give a decision merely on the basis of text of sastras.
Vyavahara as a source of Law: In ancient Indian society vyavahara or adjudication was considered as a source of Law. According to U.C.Sarkar, if a case is decided after a proper judicial scrutiny, it becomes a source of law for adjudicating subsequent litigation.[1] This is similar to the present concept of precedent.
Classification of law: Ancient Hindu Law has been classified into two and they are substantive law (also called dharma) and procedural law (also called vyavahara)
Vyavaharapada
According to P.V.Kane, the subject matter of litigation is called Vyavaharapada [2]. Manu lists 18 vyavaharapadas [Manu VIII, 7]. They are
- RUNADHANA – Payment of debts
- NIKSHEPA – Deposits
- ASWAMY VIKRAYA- Sale effected by a person who is not having the ownership of the property (swamy means owner, aswamy means ownerless)
- SAMBHUYA SAMUTHANA – Partnership/Joint undertaking
- DATTASYANAPAKARMA – Redemption of gift
- VETANADHANA - Payment of wages
- SAMVIDYADIKARMA – Violation of convention of guild and Corporation
- KRAYAVIKRAYANUSAYA – Sale and purchase
- SWAMYPADA VIVADA – Dispute between master and servant
- SIMAVIVADA – Boundary dispute
- VAKPARUSHYA - Defamation
- DANDAPARUSHYA – Assault, Hurt etc.
- STEYA – Theft/ stealing
- SAHASA – Dacoit/murder – Offences by violence
- STRISANGRAHANA- Rape, adultery etc.
- STRIPUMDHARMA – Conjugal rights and duties
- VIBHAGA - Partition
- DYUDTASAMAHVAYA – Betting and Gambling
According to Manu, vyavaharapada can be of two kinds namely pada and sthana. Pada stands for subject matter of litigation at the instance of a private party and sthana stands for subject matter of litigation initiated at the instance of the King. Thus pada is similar to private complaint and sthana is similar to prosecution instituted on a police report in the present legal system.
Yajnavalkya says that the word vyavaharapada denotes only a private litigation.
Katyayana says that the term vyavaharapada indicates only wrongs of private nature in which the King should look suo moto. In the present legal system, there are similar offences of which the Court can not take cognezance . E.g. Adultry
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Kantakasodhana.
Manu says “ by protecting those who lead a virtuous life and punishing the wicked, kings…….. reach heaven” [Manu ,IX, 253]
Kautilya says that the vyavaharapada deals with civil law and kandakasodhana deals with criminal law. According to Kautilya the criminal matters are to be dealt by some officers called ‘Pradestras’. Pradestras are similar to the coroners and police magistrates (in England) of modern age. Similarly matters coming with in the purview of vyavaharapada are to be adjudicated by civil judges and they are called Dharmastha.
S.D.Sharma says that the term kandakasodhana is something similar to the doctrine of police power. He says that the king has to root out (eliminate) all anti social elements, which act against the established social order.
Fine in Civil matters: Kautilya says that if an artisan (e.g. blacksmith or carpenter) causes unreasonable delay in handing back the finished articles, he is entitled to get only a share of the proper wages. How ever he has to pay twice the amount of wages as fine [Kautilya, IV, 2]. This is somewhat similar to the present concept of quantummeruit and warranty.
Kautilya also prescribes fine against those who are using false weights and measures. This is similar to the present system of fine imposed by the Legal metrology Department.
Rescue Operation.
Kautilya also provides steps to be taken against natural calamities such as floods, fire, deceases, famine, rats, tigers and serpents [Kautilya, IV, 3]
Officers to protect victims of cheatings:
Kautilya also says that officers are to be appointed to protect the subjects against those who may cheat the general public by resorting to foul means. These officers are called ‘Samahartr’ [Kautilya, IV, 4]
Spies to check corruption.
Kautilya says that spies should be employed to locate honest and corrupt officials. The errand officials are punished and the punishment usually given was banishment. Kautilya also prescribes punishment and detention to the officials inclined to offences like robbery, adultery etc. [Kautilya, IV, 5]
He also prescribes the seizure of criminals on suspicion [Kautilya, IV, 6-7]
He also deals with criminal investigation. He supports inflicting torture to extract confession [ Kautilya, IV, 8]
Kautilya says that Samahartr and pradestrs should exercise control over all heads of state departments. The post of Samahartr and pradestrs can be considered as precursor of the idea of lokayuktha and lokpal.
DHARMADHIKARANA (Courts – Hall of Justice): The place where the truth in dispute is investigated according to the Dharmasastras is called Dharmadhikarana
The first and foremost duty of the king in ancient India was to protect his subjects. The word protection has got three connotations:
1. Protection from internal disturbance – Protection from thieves etc.
2. Maintenance of social status quo.
3. Protection from external aggression.
For the protection of people some instruments like laws are necessary. To administrate those laws some institutions like courts are necessary. These courts were called Dharmadhikarana. Those laws were of two types
1. Substantive laws also called dharma
2. Procedural law also called vyavahara
Constitution and functions of courts in ancient India
According to Kautilya while arriving in the assembly hall (Court), the court should permit unrestricted entrance to those wishing to see him in connection with their affairs. [Kautilya Arthasastra I. 19,26&27]
According to Manu an ideal court is a place where three Brahmans, learned in Vedas and appointed by the king, sit [Manu, VIII, 11]
Brhaspathi says that there were four types of courts in ancient India and they were:
1. Sasitha – This is the court presided over by the king.
2. Mudhritha – This is a kind of court wherein the presiding officer is competent to use the seal of the king.
3. Apratishtitha – This is a kind of court, which is not fixed in a particular place. This is a mobile court or circuit court.
4. Prathistitha – This is a kind of court, which is established in a fixed place.
15.10.06
Dharmasastra writers recognized some other kind of tribunals. Narada says, “Law suits may be decided by village councils (Kulani), Corporations (Sreni) and Assemblies” (Assemblies are described as Puga by Yajnavalkya and Gana by Narada)
P.V.Kane says that in ancient India there were arbitration tribunals similar to the modern concept of Lokadalath and Punchayath. In the hierarchy prescribed by Narada, Kulani occupied the lowest position. These village councils were similar to grama punchayath in the modern world. How ever judicial power was vested in the Courts. Description about these kind of courts can be seen from the inscription of Chandragupta II, found in Sanchi stone. From these inscriptions it can be understood that those Punchayaths were called Punchamandali.
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Adjudication Process:
In ancient India the process of adjudication was carried out in two stages. Kulas, Srenis and Ganas were empowered only to convict the accused. The King was the authority to impose fine or corporal punishments. Kautilya says that the village headman exercises some summary powers similar to the police under the Village Police Act 1867.
According to Brhgu there were 10 kinds of Tribunals in ancient India. They were:
1. Kula – Village Council
2. Sreni – Corporation.
3. Puga – Assemblies.
4. Assembly of citizens of capital.
5. Vargins
6. Court of Village people
7. Court of men learned in the four Vedas.
8. Kulikas
9. Judges appointed by the King
10. King himself
According to Brhgu disputes among foresters were adjudicated by foresters themselves. Similarly disputes among soldiers were resolved by a tribunal of soldiers.
Jury System:
This system was in vogue in ancient India. Kautulya says that disputes among people who were expert in witchcraft and yoga were decided by the King with the help of those who were expert in THREE VEDAS.
In that legal system the rights of the accused were well protected. For example the accused had a right to claim to be tried by a competent person and there was the practice of seeking assistance of the experts for resolving technical and complicated questions of facts.
Gautama says that the King used to receive the assistance from the heads of village, merchants, cowherds, moneylenders, artisans etc. How ever the final decision was that of the King alone. That means the well recognized principal that “ Judge is the expert of the experts” was well recognized in those days.
Composition of the Court:
The court hall in ancient India was arranged on the eastern side of the palace. They were decorated to maintain the dignity of court halls. The court halls were adorned by the following constituents:
1. King.
2. Judges.
3. Computer.
4. Assessors.
5. Writer.
6. Fire.
7. Gold and
8. Water.
The King sat facing the east. The assessors occupied the right side of the king and they faced north. The computer sat in front of the king facing west. The left side of the kind was occupied by the writer, who sat facing the south.
Court was considered as a sacred place where justice were administrated. The justice was administrated in the name of the king and so the idea of providing throne to the judge was recognized. This concept resembles the concept of Kings Bench.
The king entered into the Court hall with a dignified demeanor along with the councilors and Brahmins. Brahmanas were an integral part of the court system. Katyayana says that a king who examines disputes in the presence of the judges, the ministers, learned Brahmins, the Purohits and sabhyas attains heaven. Narada also says that the king has to abide by the opinion of the judges. However S.D.Sarma says that the king was not a rubber stamp and at the same time he was not the all in all in the administration of justice.
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Qualification of Judges:
Manu says, “if due to other works of administrative nature the King is unable to attend the Court, he must appoint a learned Brahmana together with 3 Sabyas to decide the disputes” (Manu, VIII, 9-10)
Gautama describes judge using the word “Pradvivaka”. He says that the function of administration of justice is a difficult task. He also advocates the separation of judicial function from the executive function[3].
Qualities of Judges:
Judges should be persons of high character. About this aspect Katyana says that judges should be selected from persons born of good family. They should not be partial, should not be repellent, should be steady, should be afraid of the next world, should be highly religious and should be free from hot tempered.
Manu says that Varna of the person is a very important factor in the selection of judges. He is very much particular that the chief judge should be a learned Brahmana having a thorough knowledge of achara meant for a Brahmana. He says that a sudhra should never be appointed as a judge. The kingdom of the king where there is a sudhra judge will ruin as a cow sinks in mud[4].
The punishment prescribed on those days were also very severe. For example, if a sudhra committed the offence of striking a Brahmana, his hand was cut of. It is interesting to note that fines were also to be imposed based on cast and rank.
In these aspects Arthasastra of Kautilya is more rational and secular than Dharmasastras and Dharmasoothras. The custom of appointing Brahmanas as judges has been justified by many writers. In modern India a person who is not a citizen of India cannot be appointed as judge of Supreme Court. Those writers are posing a question - what is the rational of these rules. At least Manu never made such distinction on the basis of nationality or place of birth or territory. They argue that Brahmanas were an intellectual class in the society and they devoted their life itself for research and intellectual attainment. More over Manu never determined varna on the basis of birth alone. For example, he says that by association with Brahmins, person in other casts may also reach the level of Brahmins. A sudhra who is gentle in his speech, free from pride and who seeks refuge with Brahmins attains a higher cast[5].
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Appointing Sabhyas In addition to the chief judge, the king appointed pusine judges called Sabhyas. According to Brhaspathi the sabhyas should be appointed in odd numbers. They may be 3, 5 or 7 in numbers.
Manu insists that sabhyas should also belong to the cast of Brahmins. How ever other smriti writers agree that the sabhyas may be of other varna like kshethriya or vaisya.
The persons who are appointed as sabhyas should have some other qualifications. These qualifications were prescribed by Katyayana.
1. He should know Vedas.
2. He should be an expert in Dharmasastra.
3. He should speak truth.
4. He should be sturdy
5. He should be intellectual
6. He should be impartial to friends and foes.
7. He should be devoted in his word.
The sabhyas were not the servants of the crown and they represented the constitutional sovereign authority of the Nation.
Kautilya says that the chief judge was given a salary of 48,000 panas per annum and pusine judges were not so highly paid.
It is interesting to note that in ancient Indian Courts, Brahmins who were well versed in Dharmasastras, were allowed ingress in the court halls though they were not appointed by the King. The judges used to accept their opinion on different questions of law with due respect. They enjoyed the position similar to Amecus Curae in the present legal system.
The chief duty of the sabhyas was to bring the king back to the path of Dharma when he is deviated from the same and to help him to arrive at a fair decision.
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Dignity of Courts:
In ancient India special ceremonial dresses were prescribed for judges on special occasions. Vishnu Dharmasastras say that the judges should keep a smiling face while speaking. He should not loose temper. In the words of Beckon, a king who is administrating justice with out following the above principle is a “ king of wild justice”.
The chief justice and sabgyas were prohibited from holding private conversation with any one of the litigants when a case is pending. If they violate this rule, they were fined. According to Kautilya, if a judge corruptly given wrong decision, he should be given even corporal punishment. Similarly Narada says that if a sabhya adjudicates a matter with out following smriti, he has to be fined twice the fine to be paid by the defeated party. Forfeiture of the property of the sabhyas was also prescribed by the Vishnu Dharmasastras.[6]
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Avoidance of delay
In ancient Indian jurisprudence the kings were to suffer the consequences causing delay in adjudicating matters. The maxim ‘Justice delayed is justice denied’ was quite to the ancient Indian jurists.
As all of us are familiar, the main cause of delay in the modern administration
of justice is the indiscriminate adjournment. This practice was strictly avoided by the ancient Indian jurists. Manu says that the time limit for filing answers were 3 fortnights.[7] How ever in civil litigations time was granted to avoid errors and to find out the truth.
Procedure in the Court of Justice (Prakriya)
[1] U.C. Sarkar, Epochs in Hindu Legal History (1958) p. 34
[2] P.V.Kane, History of Dharmasastras Vol. III (1971) p. 248
[3] P.V.Kane, History of Dharmasastras Vol. III (1971) p. 272
[4] Manu,VIII, 20-21
[5] Manu. IX, 315
[6] P.V.Kane, History of Dharmasastras Vol. III (1971) p. 275-76; Vishnu Dharmasastras, V, 180
[7]Manu, VIII, 58
