Judiciary in Ancient India

Judiciary System in Ancient India

The judicial system deals with the administration of the laws through the agency of the law givers or the courts. The system provides the machinery for the resolving of the disputes on account of which the aggrieved. Nothing rankles in human heart more than a brooding sense of injustice. No society can allow a situation to grow where the impression prevails of there being no redress for grievances.

India has a recorded legal history starting from the Vedic ages (ca.1750–500 BCE) and some sort of civil law system may have been in place during the Bronze Age in India that is around 3000 BCE and the Indus Valley civilization, which is the  period between 2600 BCE and 1900 BCE. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.

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Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system. The Modern Indian Judiciary is partly a continuation of the British Raj legal system established by the British in the mid-19th century based on a typical hybrid legal system known as the Common Law System, in which customs, precedents and legislative is all components of the law. The subject matter is not a part of the curriculum in the top law colleges in India but is of immense importance for all law students of top law colleges in India.

So the History of Judicial system in India can be classified in to three stages, as follows

  • Judicial System in ancient India that is Pre-Islamic invasion
  • Judicial System in Medieval Age
  • Judicial System in British Rule.

The scope of our discussion in this article we shall take the first stage.

India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree. History of Indian judicial system takes us to the hoary past when Manu and Brihaspati gave us Dharam Shastras, Narada the Smritis, and Kautilya the Arthshastra .A study of these memorable books would reveal that we in ancient India had a fairly well developed and sophisticated system of administration of justice. In broad outlines there is considerable similarity between the system then in vogue and the system now in force.

Judicial System in Ancient India

In the early Vedic times, we do not find any reference as regards the establishment of judicial procedure. The jurisprudence of Ancient India was shaped by the concept of `Dharma’, or rules of right conduct, as outlined in the various manuals explaining the Vedic scriptures such as `Puranas’ and `Smritis’. The King had no independent authority but derived his powers from `Dharma’, which he was expected to uphold. The distinction between a civil wrong and a criminal offence was clear. While civil wrongs related mainly to disputes arising over wealth, the concept of sin was the standard against which crime was to be defined. (Basham, 1967; Jois 1990). The Maurya Dynasty, which had extended to substantial parts of the central and eastern regions during the 4th Century, B.C., had a rigorous penal system, which prescribed mutilation as well as death penalty for even trivial offences (Sharma 1988).

The Manusmṛti or “Laws of Manu”, Sanskrit Manusmṛti मनुस्मृति; also known as Mānava-dharmaśāstra मानवधर्मशास्त्र, is the most important and earliest metrical work of the Dharmaśāstra textual tradition of Hinduism written by the ancient sage Manu prescribes ten essential rules for the observance of Dharma: Patience (dhriti), forgiveness (kshama), piety or self control (dama), honesty (asteya), sanctity (shauch), control of senses (indraiya-nigrah), reason (dhi), knowledge or learning (vidya), truthfulness (satya) and absence of anger (krodha). Manu further writes, “Nonviolence, truth, non-coveting, purity of body and mind, control of senses are the essence of Dharma”. Therefore dharmic laws govern not only the individual but all in society. Sir William Jones assigned Manusmriti to a period of 1250 BCE. Karl Wilhelm Friedrich Schlegel assigned it to 1000 BCE. In present form, Manusmriti is commonly dated to 5th century BCE. Some scholars have estimated to be anywhere between 200 BCE and 200 CE. The Manu smṛti shows the obvious influence of previous Dharmasutras and Arthashastras. In particular, the Manusmriti was the first to adopt the term vyavaharapadas. These eighteen “Titles of Law” or “Grounds for Litigation” make up more than one fifth of the work and deal primarily with matters of the king, state, and judicial procedure. The dharma classes of texts were noteworthy because they did not depend on the authority of particular Vedic schools, becoming the starting point of an independent tradition that emphasized dharma itself and not its Vedic origins. The Manusmṛti recognized assault and other bodily injuries and property offences such as theft and robbery (Pillai 1983; Griffith 1971; Thapar 1990; Raghavan 2002). So the concept of Dharma ruled Indian civilization; from the Vedic period up to Muslim invasion from King to his last servant everyone was bound by Dharma.

The word Dharma is derived from “dhr” to mean to uphold, sustain or nourish. The Seers often use it in close association with ‘rta’ and ‘satya’. Sri Vidyaranya also known as Mādhava Vidyāranya is variously known as being a kingmaker, patron saint and high priest to Harihara Raya I and Bukka Raya I, the founders of the Vijayanagar Empire, born in 1268 CE and was the 12th Jagadguru of the Sringeri Sharada Peetham from 1380 to 1386 A.D defines ‘rta’ as the mental perception and realization of God. The Taittiriya Upanishad also uses it with ‘satya’ and ‘dharma’. It exhorts students to speak the truth and practice dharma (Satyam vadha: Dharmam chara). According to Sankara Bhagavatpada ‘satya’ means speaking the truth and ‘dharma’ means translating it (Satya) into action.

“Satyamiti yathasastrarthata sa eva anusthiyamanah dharmanama bhavati.”

In this regard, the explanation given by Sri.K.Balasubramania Aiyar is relevant: “An analysis of the significance of these three words (rta, satya and dharma) brings out clearly to us the fundamental basis of dharma as the ideal for an individual. While ‘rta’ denotes the mental perception and realization of truth and ‘satya’ denotes the exact true expression in words of the truth as perceived by the mind, dharma is the observance, in the conduct of life, of truth. In fact, dharma is the way of life which translates into action the truth perceived by the man of insight as expressed by him truly. In short, ‘rta’ is truth in thought, ‘satya’ is truth in words and ‘dhrama’ is truth in deed.”

Dharma is generally mean ‘principle of righteousness’ or ‘duty’, principle of holiness and also the principle of unity. Yudhishthira says in his instructions to Bhishma that whatever creates conflict is Adharma, and whatever puts an end to conflict and brings about unity and harmony is Dharma. Anything that helps to unite all and develop pure divine love and universal brother hoodness is Dharma. Dharma advocates if the Paramatman is to draw us unto himself we must, without fail; perform our duties to him as well as to the world. It is these duties that constitute what is called dharma. Again, it is dharma that serves us when we dwell in our body and when we cease to dwell in it. It serves us in life and afterlife. There need be no doubt or confusion about the dharma we ought to follow. We are all steeped in the dharma that our, great men have pursued from generation to generation. They have inwardly realized eternal beatitude and we know for certain that they lived without any care, unlike people in our own generation who are always discontented and are embroiled in agitations and demonstrations of all kinds. All we need to do is to follow the dharma that they practiced. If we tried to create a new dharma for ourselves it might mean trouble and all the time we would be torn by doubts as to whether it would bring us good or whether it would give rise to evil. It is best for us to follow the dharma practiced by the great men of the past, the dharma of our forefathers. It does not mean that ‘Dharma’ is immutable; ‘Dharma’ has to two aspects one ‘Sanatana Dharma’ another is ‘Yuga Dharma’ later is valid one for an age. The Smiritis themselves recognize this principle of social change, Manu says, “There is one set of dharma for men in the kritayuga; a different set for each of tretayuga, dvapara and kaliyugas; the dharma change according to the change of yuga. “The Hindu (i.e Sanatana Dharma) view makes room for essential changes. There must be no violent break with social heredity, and yet the new stresses, conflicts and confusions will have to be faced and overcome; while the truths of spirit are permanent the rules change from age to age”.

Dharma is unique blend of rigidity and flexibility it protects eternal principles and accepts continued valid traditions, Shurtis stands for universal, eternal, and fundamental principles and Smiritis stands for a group of values derived from these principles and finding their expression in limited, temporary and relative field of social life. Swami Vivekananda said, “We know that, in our books, a clear distinction is made between two sets of truths. The one set is that which abides forever, being built on the nature of man, the nature of soul, the soul’s relation to God and so on. The other set comprises the minor laws, which guide the working of our everyday life…… They belong more properly to the puranas, to the Smiritis, and not the shruti…..custom of one age, of one yuga, have not been the customs of another, and as yuga comes after yuga they will have to change”.

Indian Society as it stood, in India the King himself was subject to the law; that arbitrary power was unknown to Indian political theory and jurisprudence and the king’s right to govern was subject to the fulfillment of duties the breach of which resulted in forfeiture of kingship; that the judges were independent and subject only to the law; that ancient India had the highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today; that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with the power to review the decision of the Courts below; that disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial process in the modern State today: that the rules of procedure and evidence were similar to those followed today; that supernatural modes of proof like the ordeal were discourage; that in criminal trials the accused could not be punished unless his guilt was proved according to law; that in civil cases the trial consisted of four stages like any modern trial – plaint, reply, hearing and decree; that such doctrines as Res Judicata (prang nyaya) were familiar to Indian jurisprudence; that all trials, civil or criminal, were heard by a bench of several judges and rarely by a judge sitting singly; that the decrees of all Courts except the King were subject to appeal or review according to fixed principles; that the fundamental duty of the Court was to do justice “without favor or fear”.

Rule of Law in Ancient India

From the Vedic period onward, the perennial attitude of Indian culture has been justice and righteousness. Justice, in the Indian context, is a human expression of a wider universal principle of nature and if man was entirely true to nature; his actions would be spontaneously just. Men in three major guises experience Justice, in the sense of a distributive equity, as moral justice, social justice, and legal justice. Each of these forms of justice is viewed as a particularization of the general principle of the universe seen as a total organism. From the broadest to narrowest conception, then, ancient Indian views on justice are inextricably bound up with a sense of economy (Wayman 1970). Human institutions of justice – the state, law, – participate in this overall economy; but the belief has remained strong in India through the centuries that nature, itself, is the ultimate and final arbiter of justice. Ultimately, justice is cosmic justice (Underwood 1978).

The state performed its duty of protection of society and the individual through coercive enforcement of the standards of justice, which are reduced for the purpose into the minutiae of positive law. Through practical law-enforcement, the state must actually seek to controvert the ignorance of those men in society who remain unaware or unconvinced of the very purposes for which they themselves, the state, and society exist (Bhattacharaya (1990). Accordingly, the traditional Indian king has been invested with danda, “the sceptre”, a symbol of the power and authority of the state, which rules, inexorably by law and punishment (Menski, 1991).  As we have already discussed that Manu, insists in his discussion of the role of the king that if he does not ” . . . inflict punishment on those worthy to be punished, the stronger would roast the weaker like fish on a spit … “. “Having fully considered the time and the place (of the offence), the strength and knowledge (of the offender), let him justly inflict that punishment on men who act unjustly,” The exercise of the coercive power of danda with regard to law-enforcement is considered just in the highest sense, since particularistic legal codes are considered to be concrete and detailed embodiments of the more abstract and exalted principles of justice which are fundamental to the cosmos (Underwood 1978).

The administration of legal justice and infliction of punishment was performed on the basis of Varna system. Manusmriti considers that it is only natural to take Varna into account in the administration of legal justice. Manu indicates that the king, acting as judge should consider “the strength and knowledge” of the defendant. His strength and knowledge are estimated as functions of his Varna. Legal consideration of varna rank has two main outcomes, one having to do with responsibility, the other with privilege, and one concerning the perpetrators of crime and the other its victims. Crimes against persons were adjudicated with reference to the class-status of the victim and the perpetrator. The penalty for a crime was increasingly severe the higher the Varna of the victim and lower the Varna of the perpetrator (Das 1982). One of the chief duties of the king was the maintenance and protection of the Varna system through his power of danda (the sceptre). The king obeyed this concept because it is realized that Varna and the state are necessary aids to the achievement of the final goal of life (Underwood 1978; Lahiri 1986). The legal distinctions of ancient India are firmly based on an ideal of equity and justice expressed in terms of hierarchy rather than of equality.

Judiciary in Ancient India

Sacred law (Dharma), evidence (Vyavahára), history (Charitra), and edicts of kings (Rájasásana) are the four legs of Law, of these four in order: the later is superior to the previously mentioned. Dharma is eternal truth holding its sway over the world; Vyavahára, evidence, is in witnesses; Charitra, history, is to be found in the tradition (sangraha), of the people; and the order of kings is what is called sásana (legislations). These principles of were administered by Court, in ‘Sangrahana’, ‘ Karvatik’, ‘Dronamukha’, and ‘Stháníya’, and at places where districts meet, three members acquainted with Sacred Law (dharmasthas) and three ministers of the King (amátyas) shall carry on the administration of Justice. ‘Sangrahana’ is centre for 10 villages, ‘Karyatik’ for 200 Villages, ‘Dronamukha’ for 400 villages and ‘Sthaniya’ for 800 villages. This arrangement of judiciary suggests that there were sufficient number of Courts at different levels of administration, and for district (Janapadasandhishu) there were Circuit Courts. My

In villages, the local village councils or Kulani, similar to modern panchayat, consisted of a board of five or more members to dispense justice to villagers. It was concerned with all matters relating to endowments, irrigations, cultivable land, punishment of crime, etc. village councils dealt with simple civil and criminal cases. At higher level in towns and districts the Courts were presided over by the government officer under the authority of King to administer the justice. The link between the village assembly in the local and the official administration was the head man of the village. In each village, local head man was holding hereditary office and was required to maintain order and administer justice, he was also a member of village council he acted both as the leader of the village and mediator with the government.

In order to deal with the disputes amongst member of various guilder or association of trader or artisans,(sreni), various corporations, trade bills, guilds were authorized to exercise an effective jurisdiction over their member. These tribunals consisting of a president and three or five co-adjustors were allowed to decide their civil cases regularly just like other Courts. No doubt, it was possible go in appeal from the tribunal of the guild to local Court, then to Royal judges and from this finally to the King but such situation rarely arises. Due to the prevailing institution of joint Family system Family Courts were also established, ‘puga’ assemblies made up of groups of families in the same village decide civil disputes amongst the family members.
Grounds of Litigation:
These eighteen “Titles of Law” or “Grounds for Litigation” given by Manu mentions following grounds on which litigation may be instituted, (1) Non-payments of debts; (2) deposits; (3) sale without ownership; (4) partnership; (5) non-delivery of gifts; (6) non-payment of wages; (7) Breach of Contract; (8) cancellation of a sale or purchase; (9) disputes between owners and herdsmen; (10) the law on boundary disputes; (11) verbal assault; (12) physical assault; (13) theft; (14) violence; (15) sexual crimes against women; (16) law concerning husband and wife; (17) partition of inheritance; and (18) gambling and betting.

According to Brihaspati Smiriti, there was a hierarchy of Courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher Court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s Court. The jurisdiction of each was determined by the importance of the dispute, the minor disputes being decided by the lowest Court and the most important by the king. The decision of each higher Court superseded that of the Court below.

According to Vachaspati Misra, “The binding effect of the decisions of these tribunals, ending with that of the king, is in the ascending order, and each following decision shall prevail against the preceding one because of the higher degree of learning and knowledge”.

Duties and manners: to be observed by the king in administration of justice were very clearly laid down in Sacred Texts, Manu’s code says, a king, desirous of investigating law cases, must enter his Court of justice, preserving a dignified demeanour, together with Brahmans and with experienced councilors. There, either seated or standing, raising his right arm, without ostentation in his dress and ornaments, let him examine the business of suitors. Manu cautions King by saying, “Justice, being violated, destroys; justice, being preserved, preserves: therefore justice must not be violated, least violated justice destroys us”. Further he opines ‘the only friend of men even after death is justice; for everything else is lost at the same time when the body (perishes)’. If judicial system fails to dispense justice Manu says that, one quarter of (the guilt of) an unjust (decision) falls on him who committed (the crime), one quarter on the (false) witness, and one quarter on all the judges, one quarter on the king.

As the duty of a king consists in protecting his subjects by dispensing justice its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal scepter (danda) in vain. It is power and power (danda) alone which, only when exercised by the king with impartiality and in proportion to guilt either over his son or his enemy, maintains both this world and the next. The king who administers justice in accordance with sacred law (Dharma), evidence (vyavahára), history (samsthá) and edicts of kings (Nyáya) which is the fourth will be able to conquer the whole world bounded by the four quarters (Chaturantám mahím). A king who properly inflicts punishment prospers with respect to those three means of happiness; but if he is voluptuous, partial, and deceitful he will be destroyed, even through the unjust punishment, which he inflicts. Manu felt that the judicial administration should not rest in the hands of a feeble minded king. If judicial administration were given to such a king he would destroy the whole country. Punishment cannot be inflicted justly by one who has no assistant, (nor) by a fool, (nor) by a covetous man, (nor) by one whose mind is unimproved, (nor) by one addicted to sensual pleasures.

Jury system

It is found that jury system existed in Manu’s period and Manu recommended the king to give the power of judicial administration to Brahmins in his absence. Jurors were called as ‘sabhasada’ or councilors who acted as assessors or adviser of the King. They were the equivalent of the modern jury, with one important difference. The jury of today consists of laymen- “twelve shopkeepers”-whereas the councilors who sat with the Sovereign were to be learned in law. Yajanvalkya enjoins: “The Sovereign should appoint as assessors of his Court persons who are well versed in the literature of the law, truthful, and by temperament capable of complete impartiality between friend and foe.”

These assessors or jurors were required to express their opinion without fear, even to the point of disagreeing with the Sovereign and warning him that his own opinion was contrary to law and equity. Katyayana says: ‘The assessors should not look on when they perceive the Sovereign inclined to decide a dispute in violation of the law; if they keep silent they will go to hell accompanied by the King.” The same injunction is repeated in an identical verse in Shukr-nitisara. The Sovereign-or the presiding judge in his absence-was not expected to overrule the verdict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in accordance with their advice. Shukr-nitisara says: “The King after observing that the assessors have given their verdict should award the successful party a decree (Jaya-patra).” Their status may be compared to the Judicial Committee of the Privy Council which “humbly advises” their Sovereign, but their advice is binding. It may also be compared to the peoples’ assessors under the Soviet judicial system who sits with the professional judge in the People’s Court but are equal in status to him and can overrule him. However, if the decision of the Sabhyas (Judge) were fined and removed from the post, banished their property was also forfeited. They compelled to make good the loss. If the decision of Sabhyas is promoted by greed, fear, friendship, etc each one was fined twice.

Judicial Psychology
Manusmriti has specified the part of the judge’s function to probe the heart of the accused and the witness by studying their posture, mind and changes in voice and eyes. Chapter VIII, 25 (Para) – By external Signs let him discover the internal disposition of men, by their voice, their colour, their motions, their aspect, their eyes, and their gestures. 26 (Para) – The internal (working of the) mind is perceived through the aspect, the motions, the gait, the gestures, the speech, and the changes in the eye and of the face. This is unique it is the only ancient legal text which is the first code of law to take account of judicial psychology. It is further held that his flattering voice, licking the corner of his lips, speaking incoherently, loss of colour of his face and frequent coughing indicate the probability of his untruthfulness in the eyes of the Mitaksara of the Yajanvalkya Smriti.

Law Relating to Witnesses
In ancient India to hearsay was not allowed, but a witness in a foreign country can give his evidence in writing before a learned man in the three Vedas and the writing sent by him may be read in the Court. As regards the number of witnesses, it is said that this number may be multiple. But a single witness is not accepted as the facts cannot be collaborated. But Narada Smrti states that a single witness may be accepted, if it is approved by both the parties. Kautilya states that a single witness can be accepted, if the very transaction has taken in secret.

Qualifications for witness, he should be a man of good character, trustworthy, knows Dharma and acts up to it. Witness from the same caste is to be prepared, and in cases relating to women a woman can be witness. As regards the nature of incompetent witnesses, it may be said that the persons having no faith in the Dharma, the persons who are very old persons, minors, oil presser, intoxicated person, lunatic, distressed, inattentive, undertaking long journeys, gambler etc.

Narada further gives us five-fold classification of incompetent witnesses, (1) the learned Brahamanas, and ascetics practising austerities. (2) Thieves, robbers, gamblers (3) witnesses are to be rejected on the ground of contradiction in their evidence (4) one who comes of his own accord for leading an evidence is also treated as incompetent, (5) When a person dies, he names some persons as witnesses for the transaction, they can come as witnesses and the person who is informed by the parties in a general way and not in a specific way is not to be admitted as a witness. Ordinarily the witnesses are to be examined in the presence of the parties and never behind their back. Further, a witness should be examined by his tone, change of colour, eyes gestures etc

The judge should address a Brahmana witness by ‘speak and swear by veracity’. He should address the Ksatriya witness as speak the truth and he should swear by the animal he rides and his weapon. A Vasisya should swear by kine, gold, and grian and a Sudra should swear by all grave sins. The view of majority witnesses shall be prepared, in case where there is no majority opinion is possible, and then the quality of statement made by the witnesses is to be taken into consideration. The claim is not said to be established when witnesses depose more or less than that mentioned in the statement or pliant of plaintiff and the disposition has not taken place at all and in such a case no fine is to be imposed. When there is conflict among the witnesses as regards time, place, property, amount, then the dispositions are as good as not taken place. Generally no ordeals (divyas) are to be resorted to when the witnesses are available. The oaths are to be employed in the disputes of small value and the ordeals are to be resorted to in serious disputes of crimes.

Punishment for false witnesses, (a) where a witness denies deposing in the Court matter, after giving promise to that effect along with other witnesses, (b) if for unfavourable circumstances, a witness denies to depose, (c) if a witness gives false evidence frequently, in all these cases witness shall be punished with fine and in last case physical punishment can also be imposed on such witness.

Classification of Vivada (disputes)
Apart from 18 subject matters of legal proceedings (as classified by Manu), distinction has been made between Artha-Vivada (civil dispute) and Himsra samudbhava Vivada (criminal disputes), amongst criminal dispute there are 4 sub division (i) Danda Parusya (assault and battery) (ii) Vak- Parusya (Defamation) (iii) Sahasa (Murder and other violation) and (iv) Strisangrahana (adultery). A cause of action arises when a person, being harassed in a way contrary to the rules of Smriti and usage, lodges a complaint. The judicial proceedings usually comprise four parts, namely complaint, reply, evidence and judgment. Replies can probably be of four kinds, and these are admission, denial, a special plea, relating to a former judgment. Three types of evidences are mentioned namely document, possession and witness. As regards the rules for summoning, it is evident that the opponent or the defendant, against whom the suit is filed, must be summoned to the Court. (2) Even other persons connected with the defendant (in the suit) may also be summoned. (3) When, however, some persons like soldiers, Agriculturists, cowherds etc. are fully occupied with their work, their representative may be allowed to appear before the Court, as held by the Narada Smriti. (4) In serious matters, however, the persons are allowed to appear in person before the Court, particularly with proper safeguards (5) in more serious matters like Murder of Woman, Adultery with her, as held by the Mitakashara on the Yajanvalkay Smriti no representative is allowed. But in such matters, the concerned must appear before the Court (6) it should be noted that the presence of some persons like the deceased, very old (more than Seventy years old), persons in calamities, engaged in religious rites, in king’s duties, a woman whose family is in bad condition, is actually condoned. (7) If, however after serving the summons defendant fails to come before the Court the King should wait for 30 days or 15 days and pass the Judgment in favour of the plaintiff. (8) But if there is an invasion by enemy or famine, or epidemic, than the King should not fine the defendant who is thus prevented from coming to the Court (9) However agents can be allowed to represent on behalf of his disabled Master.

Representation by lawyer: the question also arises whether in ancient India, the system of lawyers is allowed or not. The views of Narada, Katyayana and Brhaspati show that the skilled help was required in the litigations. The commentary of Asahaya on the Narada Smrti indicates that those who are well- versed in the Smriti literature could afford help for monetary consideration to the parties that have appeared before Court. (Which is also recognized in C. P. C .1908 Order III Rule 2). Fees of such skilled persons were also fixed and he was appointed by parties not by Court.

Interpretation of Legal Documents
Artha Shastra and Manu Smriti are considered as significant treatises as far as the legal system is concerned. In ancient Indian societies, an independent school of legal practices existed. Some general principles in connection with the judicial proceedings state that in case of disagreement between two texts of Smriti, justice according to usage is to be followed. In case of conflict between a text of Smriti associated with the dharma and one relating to artha, the former prevails. The former one sets rules regarding things unnoticed or otherworldly, while the latter one is more concerned with everyday matters.

Judges were required to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro ditena vidhina). This involved interpretation of the written text of the law- a task which created many problems such as the elucidation of obscure words and phrases in the text, reconciliation of conflicting provisions in the same law, solution of conflict between the letter of the law and principles of equity, justice and good conscience, adjustment of custom and smritis, and so on. This branch of law was highly developed and a number of principles were enunciated for the guidance of the Courts. The most important of them related to the conflict between the dharm-shastra and the artha-shastra.

Three systems of substantive law were recognized by the Court, the dharma-shastra, the arth-shastra, and custom which was called sadachara or charitra. The first consisted of laws which derived their ultimate sanction from the smritis and the second of principles of government. The border line between the two often overlapped. But the real distinction between the smritis and arth-shastra is uniformly secular, but that of the dharma-shastra not always so. In fact so remarkably secular is the arth-shastra in its approach to the problems of government that this has induced some writers to advance the theory that the artha-shastra (literal meaning: the science of ‘artha’ or pursuit of material welfare), did not evolve from the dharma-shastra but had an independent origin and developed parallel to it.

Legal system in ancient India also includes adverse possession and different modes of acquisition. Adverse possession grants right to the possessor if the owner who, even while seeing his property adversely possessed, does not raise any objection. A permanent property vests in the person adversely possessing it for 12 years without any objection from the owner. In case of movables, the period is ten years. The suitable modes of attainment of a property are purchase, gift etc. Generally acquisition, by a valid mode, is stronger proof than possession. Acquisition, without even slight possession, is not valid. A mortgage vests in the mortgagee if it is not redeemed even after the principal amount is doubled. A mortgage, with a time-limit, lapses after the expiry of that time.


The theory of deterrence was the purpose of punishment and the infliction of punishment should be according to the principles of natural justice (Bose and Varma 1982). The king having fully considered the time and the place of the offence, the strength and the knowledge of the offender should justly inflict punishment on the offenders. The concept of the consideration of the offence and offender for the purpose of punishment falls in line with the modern principles of justice evolved by Jeremy Bentham and Ceseare Beccaria. It was perceived that only punishment can control all the human beings in the earth and utmost importance was given to punishment. However, chary of punishment given without proper judgment and felt that it may destroy the country. The king if he does not punish the offenders who were worthy of punishment, then, the stronger would roast the weaker, like fish on a spit and a situation will arise, where, might may overrule the right. In a country where punishment is not properly inflicted, the ownership would not remain with any one; the lower ones would (usurp the place of) the higher ones (Buhler 1984). The whole world is kept in order only by punishment, because there is no one in the world who will always act in a just manner. Only the fear of punishment runs the world. Manu also feared that if there was no punishment then all castes (varna) would be corrupted (by intermixture), all barriers would be broken through, and all men would rage (against each other) in consequence of mistakes with respect to punishment. There was deterrent against unjust punishment and warns that unjust punishment will destroy reputation among men, and fame (after death), and will cause even in the next world the loss of heaven. Manu provides stages of punishment for an erring person if he continues to do the crime, first by (gentle) admonition, afterwards by (harsh) reproof, thirdly by a fine, after that by corporal chastisement. However, when the offender is not able to restrain such offence even by corporal punishment, then the four modes co jointly should be applied.

The Constitution of India has sought to create a more equal and just rule of law between individuals and groups than what existed under traditional authorities in ancient India. The Indian Constitution strives to eliminate the humiliation that people suffered under the traditional social system of caste and patriarchy, thus creating new ground for realization of human dignity. The realization of both formal and substantive equality that is happening under the rule of law in contemporary Indian society can facilitate a more creative flourishing of a life of dharma or righteous conduct in self and society (Giri 2002).

However, in spite of the provisions in the constitution for equality in justice, we can find that ancient Indian manuscripts reminiscences in the village justice system playing a major role in the dispensation of justice. Holden (2003) in her research on some villages in India, have found out that most of the village justice system is based on caste and found out that many of the principles grounding the traditional panchayat’s decisions have an evident source in the ancient Hindu tradition.

Contributed by: Suparswa Chakraborty, Academic Department, Indian Institute of Legal Studies can be reached by e-mail iils.siliguri@gmail.com



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