2015

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

PROJECT

ON

LEGAL SYSTEM IN ANCIENT INDIA

SUBMITTED TO: SUBMITTED BY:

Mr. Malay Pandey Yajush Pandey
Asst. Professor (law), B.A LLb (hons),
Dr. Ram Manohar Lohiya 1st Semester,
National Law University. Roll No. -171(sec.B).
Decleration: This is to declare that the project is an authentic record of my
original work carried out under the guidance of Asst. Professor Malay Pandey.
 Acknowledgement
It is great pleasure for me to acknowledge the kind of help and guidance
received by me during my project work. I was fortunate enough to get support
from a large number of people to whom I shall always remain grateful, my
teacher Asst. Prof. Malay Pandey, library staff, VC University, etc.
 TABLE OF CONTENTS

Sr No. Topic
1 Introduction
2 Vedic Legal System
3 Administration of Justice
during Vedic Period

4 Justice and Punishment in

Post Vedic Age
5 Conclusion
6 Bibliography
 Legal System in Ancient India
Introduction:

India has a recorded legal history starting from the Vedic ages. It is believed that
ancient India had some sort of legal system in place even during the Bronze Age and the
Indus Valley civilization. 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 the Jains and Buddhists. 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 (16 – 19 centuries)
which preceded the current scheme of common law in India.

The law in ancient India is largely known and referred as Hindu Law. The word
“Hindu” used in this sense does not refer to a religious group of people. Originally, the word
‘Hindu’ was used as an ethnic label to refer the people of India irrespective of their religious
or social orientation. First the Persians and then the Greeks used the expression “Hindu” to
refer to the ethnic group of people or Indians and, in the thirteenth century, the word “Hindu”
was more widely used to distinguish them from the Islamic kingdoms within India. Later on,
the expression “Hinduism” was used during the British Rule in the nineteenth century to refer
to the Hindu religious culture group as distinct from Christianity and Islam. Ever since,
“Hinduism” has largely developed as a term that embraces the varied beliefs, practices and
religious traditions among the Hindus that have common historical formations including
philosophical basis.

The Vedic Legal System; Era of Shrutis, Smritis and Epics:

The Vedic System of Law also referred as ‘Classical Hindu Law’ includes the diverse
legal practices connected with the Vedic traditions in some ways and existing from the Vedic
times until 1772 when the British adopted rules for administration of justice in Bengal. To
understand the Vedic legal system, it is important to relate it to 'law' as we understand it
today. The basic arrangement of the present day modern law in a democratic country like
India is that elected representatives in the Parliament create laws, which are enforced and put
into practice by the state through its agencies, such as the executive (e.g. police or other law
enforcement agencies) and the judiciary. When lawmakers create laws, they are based on a
certain scheme of values of morality, politics, history, society and so on. In comparison with
the modern law, the Classical Hindu law was a peculiar legal system as it followed a unique
arrangement of law and polity with a unique scheme of values. Although the Classical Hindu
law was based on religion with the scholars of the Vedas playing a central role, in reality, it
was decentralized and diverse in practice and differed between communities, based on
locations, vocational groups (like merchant groups, military groups, and temple groups) and
castes.

Administration of justice was not a part of the state’s duties in early times. We do not
find references to any judicial organisations in Vedic literature. The aggrieved party in order
to get its wrong redressed used to sit before the accused house and not allow him to move till
his (aggrieved party) claims was satisfied or wrong righted. Later justice was administered by
the tribe and clan assemblies and the judicial procedure was very simple. But with the
extension of the functions of the state and the growth of the royal powers, the king came
gradually to be regarded as the origin of justice and a more or less elaborate system of
judicial administration came into existence. The Dharma Shastras, Niti Shastras and the
Arthashastra provide us information about the well-developed judiciary. According to these
literatures the king is the fountain head of all justice and he was required to spend every day
about a couple of hours in adjudication. The paramount duty of the king is the protection of
his subjects which involves the punishment of the wrongdoer. The law to be administered is
the Dharma Shastras subject to local and other usages which are not inconsistent with the
shastras.

The concept of Dharma:

The concept of Dharma ruled Indian civilization, from Vedic period up to Muslim
invasion. Everyone, from King to his last servant everyone was bound by Dharma. 'Dharma'
in Sanskrit means righteousness, duty and law. 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 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. Dharma is wider in meaning than what we understand as law today. Dharma consists
of both legal duties and religious duties. It not only includes laws and court procedures, but
also a wide range of human activities like ritual purification, personal hygiene regimes, and
modes of dress. Dharma provided the principal guidance by which one endeavored to lead
his life.

Manusmriti 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, " Everyone, from King to his last servant everyone was bound by Dharma.
'Dharma' in Sanskrit means righteousness, duty and law. ". Therefore dharmic laws govern
not only the individual but all in society
Sources of Dharma:

There are three sources of Dharma or Hindu law. The first source is the Veda or
Vedas. The four primary Vedas are the ?igveda, Yajurveda, Samaveda, and Atharvaveda.
They are collections of oral texts of hymns, praises, and ritual instructions. Veda literally
means revelation – the divine knowledge revealed to worthy sages. It is also known as
‘Shrutis’. According to the Hindus, the foundation head of Dharma or law is Vedas or
revelation, but there are no special chapters in the Vedas treating of law.

The second source is called Smriti, which literarily means 'as remembered' and it
refers to tradition. They are the humanly authored written texts that contain the collected
traditions. The Dharmashastra texts are religion and law textbooks and form an example of
the Smriti tradition. Since only a few scholars had access to direct knowledge or learning
from the Vedas, Smritis are the written texts to teach others. These texts are considered to be
authoritative because they are believed to include duties and practices that must have been
sourced from the Vedas and they are accepted and transmitted by humans who know the
Vedas. In this way, a connection is made between the Veda and smrititexts that make the
latter authoritative.

The third source of dharma is called the 'âchâra', which means customary law. Âch
ras are the norms of a particular community or group. Just like the smriti, ch ra finds its
authority by virtue of its connection with the Vedas. Where both the Vedas and the Smritis
are silent on an issue, a learned person who knows the Vedas can consider the norms of the
community as dharma and perform it. This way, the Vedic connection is made between the
Veda and the âchâra, and the âchâra becomes authoritative.

Dharmashastras:

'Dharmashastra' is an example of Smriti. They are Sanskrit written texts on religious

and legal duties. Dharmashastras are voluminous and there are hundreds of such texts. The
two most important features of the Dharmashastras are that they provide rules for the life of
an ideal householder and they contain the Hindu knowledge about religion, law, ethics and so
on.

Topics covered in the Dharmashastra:

Dharmashastra contains three categories of subjects or topics. The first is the âchâra,
which provides rules on daily rituals, life-cycle rites, as well as specific duties and proper
conduct that each of the four castes or varnas have to follow. The daily rituals include
practices about daily sacrifices, the kind of food to eat and how to obtain them, and who can
give and who can accept religious gifts. The life-cycle rites are the rituals that are conducted
on important events in one's life like birth, marriage, and tying of the sacred thread. Acharas
also provide rules for duties for all the ashrama. Ashrama are the four stages of life that
include:Brahmacharya (the student life),Grahastha (the householder), Vanaprashta (the forest
dweller), and Sanyasa (the renouncer). The second topic enumerated in the Dharmashastra is
the 'vyavâhara'. Vyavahara are laws and legal procedures. They include the 'rajadharma' or
the duties and obligations of a king to organize court, listen and examine witnesses, decide
and enforce punishment and pursue justice. The third category is called the 'prâyaschitta',
which lays down rules for punishments and penances for violating the laws of dharma. They
are understood to remove the sin of committing something that is forbidden.

Important Dharmashastra Texts:

There are literally hundreds of texts that fall under the category of the Dharmashastra
texts. Dharmasutra are the first four texts of the Dharmashastra. The Sanskrit meaning of
Dharma-sutra is righteousness-thread or string. The written format of the Dharmasutra is the
prose style. They deal with the subject matter of dharma and are like guidebooks on dharma
with rules of conduct and rites. Dharmasutra discuss the rules for duties for all the ashrama:
the student-hood, the householdership, the retirement or forest dwelling, and renunciation.
Also, they provide the rites and duties of kings and court proceedings. Other issues that are
Dharmasutras cover include rules about one's diet, crimes and punishments, daily sacrifices,
and funeral practices. The most important Dharmasutra texts are the sutra of Apastamba,
Gautama, Baudhayana and Vaisistha, and they come from various geographical locations in
India and are composed at different times between 600 and 100 BC approximately. Some of
the most prominent Dharmashastra texts are Manusmriti (200BC-200CE); Yajnavalkya
Smriti (200-500CE); Naradasmriti (100BC- 400CE); Visnusmriti (700- 1000CE);
Brhaspatismriti (200-400CE); and Katyayanasmriti (300-600CE). These texts were often
used for legal judgments and opinion. It is not clear if single or multiple authors wrote these
texts. They differ in format and structure from the Dharmasutra and are written in the verse
form. Commentaries and Digests: Commentaries were written by commentators to interpret
and provide meaning to the Dharmasutra texts and Smriti, and each commentary devoted
itself to one particular text. For example, there are commentaries exclusively on 'Manusmriti'
and on 'YajnavalkyaSmriti' and so on. The digests were not restricted to one text, but were
arranged by topic or theme or subject matter and drew upon many different
Dharmashastratexts or Smritito explain the topic. For example, there are digests on the topics
of the role of king, inheritance of property, religious rites and rituals, adoption, litigation and
judicial procedures.

The Epics - Ramayana and Mahabharata:

The Ramayana and the Mahabharata are the two known Epics of the Aryans. They
are concerned with events which took place between 1000 and 700 B.C. They are not books
on the topic of Dharmashastra. However, Valmiki and Vyasa, who are held in highest esteem
by the society have incorporated important principles of Dharma. The two epics have been
held as important sources of Dharma for the Indian people. Rama killed Rakshasa to protect
Dharma. Rama , as the eldest son was entitled to succeed to his father’s kingdom.
Mahabharata contained the topics of law in the Shantiparva. Some of the important topics
covered are:

1) Coronation Rights;
2) Evils of Anarchy;
3) Rajdharma;
4) Importance of punishment;
5) Penalties;
6) Marriage;
7) Sonship; and
8) Inheritance
Administration of Justice during Vedic Period:

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.

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.
Fines, imprisonment, banishment, mutilation and death sentence were the punishment in
vogue. Fines were most common and punishment often differed with the caste of the
accused. The jail department was under the charge of an official called Sannidhata and the
jailor was called Bandhanagaradhyaksha. Male and female prisoners were kept in separate
wards.

Types of Courts:

Brihaspati Samriti speaks of four types of courts

 Movable courts
 Stationary courts
 Courts deriving authority from the king and
  Courts presided by the king himself.

He mentions three kinds of itinerant courts, one for the benefit of forest dwellers, one
for the benefit of caravan serai merchants and one for the benefit of military men. According
to Bhrighu there were fifteen kinds of courts. Some of the prominent courts where justice
was delivered were-

1. The Kings Court: At the head of the judicial system stood the kings court at the
capital and presided by the king himself. But more often a learned Brahmana was
appointed for the purpose and he was known as Adhyaksha or Sabhapathi. Earlier the
Adhyaksha was selected for each particular occasion and in course of time became a
permanent officer of state and held the position of the Chief Justice (Pradvivaka).
Apart from the king, this court consisted of the Pradvivaka and three or four jurors.

2. Court presided by the Chief Justice: The court presided by the chief justice
appointed by the king called Pradvivaka was the second type of court.

3. Principal Courts: Another court of importance were the principal courts in large
town where royal officers assisted by learned person administered justice. They were
presided by Adhyakshas appointed by the central government.

4. Popular Courts: One special feature of ancient Indian judicial system is the
existence of popular courts. Yajnavalkya for the first time refers to three types of
popular courts.

 Kula: The Kula has been defined by the Mitakshara as consisting of a group of
relations, near or distant. The Kula or joint families were often very extensive in
ancient India. If there was a quarrel between two members the elders used to attempt
to settle it. The Kula court was this informal body of family elders.

 Sreni: When the effort at family arbitration failed, the matter was taken to Sreni
court. The term Sreni was used to denote the courts of guilds which became a
prominent feature of the commercial life in ancient India from 500 B.C. Sreni had
their own executive committees of four or five members and it is likely that they
might have functioned as the Sreni court also for settling the disputes among their
members. This was an assembly of persons following a particular profession like
betel sellers, weavers, shoe makers and such like.
  Puga: This was an association of persons drawn from various castes and
following different professions but staying in the same village or town. The Sabha or
the village assembly of the Vedic period and Gramavriddha court of the Arthasastra
were the forerunner of the Puga court.

Though these courts were essentially non-official and popular, they had the royal
authority behind them. The government refused to entrain any suits except in appeals against
their decision. It also gave effect to their decrees.

Village Panchayats:

In ancient India village panchayats and guild courts were appreciated and encouraged for
several reasons like-

 They reduced the burden of the central administration.

 The members of a village panchayat or a guild had more or less reliable knowledge of
the fact in dispute as the parties belonged to their guild or locality and
 It would be difficult for a witness to tell a lie in the presence of his own people and
thereby lose his respect.

There was no limit to the jurisdiction of the popular courts in civil matters. They
could not however try criminal cases of a serious nature. The popular courts played a
prominent part in ancient India. The regular courts met once or twice every day usually in the
morning and evenings and were open to all. Trails were always held in public.

Different kinds of laws:

Justice was administered in accordance with rules which fell under one or other of the
following four heads, namely

 Sacred law (Dharma)

 Secular law (Vyavahara)
 Custom (Charitra) and
 Royal commands (Rajasasana)

Dharmashastra constituted the sacred law and secular law depended upon evidence.
Custom was decided by the opinion of the people and royal edicts constituted the
administrative law. Of the divisions of laws, Manu and almost all law-givers consider
customs as the essential principle in the administration of justice and say that disputes should
be decided according to the customs of countries and districts; of castes; of guilds and of
families.

Types of law-suits: Classification of Vivada (disputes):

Manu mentions following grounds on which litigation could have been 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. The list includes both civil and criminal cases.

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.

Summons:

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. Even other persons
connected with the defendant (in the suit) may also be summoned. 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.

In serious matters, however, the persons are allowed to appear in person before the
Court, particularly with proper safeguards. In more serious matters like Murder of Woman,
Adultery with her, as held by the Mitakashara on the Yajanvalkay Smriti, no representative
was allowed, the concerned must appear before the Court. 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, was actually condoned. If, however after serving the summons defendant failed to
come before the Court the King would wait for 30 days or 15 days and pass the Judgment in
favour of the plaintiff. But if there was 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.

Judicial Procedure:

The judicial proceeding in a case consisted of four stages namely

1. The statement of the Arthi/Purvapaksha (plaintiff) who had filed a complaint

(Prathigna) stating precisely his case and claim.
2. The Prathyarthi/ Uttarapaksha (defendant) was summoned with a notice and was
required to submit his written statement in reply.
3. Then the actual trial would begin wherein the judge would call upon the parties to cite
evidence/proof (Pramana) which were of two kinds namely human (manushik) and
divine (daivik). The human proof consisted of documentary evidence, oral evidence
and possessions. Divine proof was of five kinds, ordeal by balance, by fire, water,
poison and by drinking water. Divine proof was restored to only in the absence of
human proof.
4. When the evidence was over the judge would in consultation with Sabhyas or jurors
give his decision/judgment (nirnaya). A copy of the judgment was given to the
parties. The unsuccessful party could appeal to the higher courts.

Importance of Jury:

Even the king and the chief justice could not begin the trail of a case if they are not
assisted by a panel of three, five or seven jurors. 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.
They were expected to be impartial and fearless. A juror keeping silence has been
condemned. They were to express their opinion even if it was in opposition to that of the
king. They were to restrain a king going astray or giving a wrong decision.

A number of famous jurists maintain that the king or judge is to be guided by the
verdict of the jury and only when the jurors could not come to a definite decision, the king
exercised his privilege to decide the case according to his own view. These sabhasads were
usually Brahmins as they were well versed in Dharmashastras. However knowledge of sacred
law was not necessary when the case (the party to the dispute) concerned the disputes among
the cultivators, merchants and forest dwellers. Dharmashastra writers themselves
recommended that the cases should be tried with the help of the jurors selected from the
castes or the professions of the parties themselves. 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."

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, 2, 3, 4, 5, 7, or 9. But a single witness is not accepted. 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.

A witness 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 practicing 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 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.

The law provided 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 case of giving
false evidence, physical punishment can also be imposed on such witness.

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.

Sukra refers to the practice of appointing recognized agents in the law courts to
defend a case when a party was himself unable to do so owing to his preoccupation or
ignorance of the law. Such agents were known as Niyogins and they were expected to guard
the interests of their parties very carefully. Their fee varied from six to half percent,
according to the value of the property. If they colluded with the other party they were
punished by the state.

Interpretation of Legal Documents:

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.

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.

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.

Justice and Punishment in Post Vedic Age:

This section deals with the legal system prevalent during the various rulers in ancient
India. During this period, though the legal system and dispensation of justice as contained in
‘Dharmashastras’ was largely followed; the period represents some unique practices with
respect to the system of dispensation of justice which were developed/ adopted by the
respective Sovereigns.

Mauryan Period:

The Mauryan administration is famous in history for its judicial system. The Mauryan
legal system was based on idealism and not reformism. The king was the highest judicial
officer. Gram Sabha was the lowest judicial unit. Above it were courts at sangrahan,
dronamukha and janapada levels. The Arthashastra written by Kautilya gives vivid account
of the legal system during Mauryas. The Arthashastra mentions two types of courts:

(i) Dharmasthiya: The dharmasthiya courts were presided over by three dharmasthas.
They are well versed in sacred law and three amatyas. Analogous with modem civil
 courts, Dharmasthiya decided personal disputes such as those relating to marriage and
dowry including-divorce, inheritance, houses, house-sites and disputes regarding
boundaries and water-rights, and trespass, debt, deposits, serfs, labour and contract,
sale, violence, abuse, assault and so on. In many respects Kautilya is seen to lay down
rules that alter and liberalise the precepts of the ancient texts, and in his hands the
exposition of the whole subject is more rational and progressive than orthodox and
conservative. In the absence of witnesses the ordeal was resorted to. Punishments
were graded and executed by royal authority. It includes fines, imprisonment,
whipping and death with or without torture. Probably caste panchayats and guild
courts existed that regulated the affairs of communities and professions and dealt with
disputes.
(ii) Kantakasodhan: Analogous with modem criminal courts, Kantakasodhan decided
upon matters related to individuals and the state, e.g. wages of workers, murder, etc.
The dharma courts dealt with disputes brought before them by the parties and
corresponded to civil courts. In the kantakasodhana courts the actions started
depending on the initiative of the executive. Assault and hurt were dealt with by the
dharma courts; assault that ended in manslaughter was reserved for the
Kantakasodhana. Kantakasodhana courts were a new type of court that was
introduced to meet the growing needs of complex social economy as well as to
implement decisions of a highly organized bureaucracy on matters that were under
their control and regulation as well as unknown to the old legal system.

Both these courts were special tribunals which followed a summary procedure than
the regular dharma courts that dealt with vyavahara. Their functions were quasi-judicial and
their methods were common with those of a modern police force then of a judiciary. It aimed
in protecting the state and people from baneful actions of anti-social persons. The merchant
who used false weights, the artisan who failed to keep his contract, the physician who caused
the death of his patient, the official who took bribes and the conspirator who contemplated
treason were all dealt with by these courts. Theft, murder, burglary, rape, defiant violation of
caste rules were the offences brought before these courts. These courts safeguard government
and society from the possible evils of the new order that was being introduced at that time.
Government control and regulation of activities of the people was becoming common and
new offices possessing discretionary powers were being introduced, new regulations were
being propagated. In order to implement these regulations as well as to see that they were not
misused by officials to tyrannize the people or evaded by the people, machinery that would
provide the necessary checks and controls was required. The kantakasodhana courts were
thus introduced. Law book of later period do refer to Kantakasodhana. These courts are
similar to modern criminal courts.

The Mauryan legal system flowed from four sources: (i) dharma (following accepted
principles); (ii) vyavahara (contemporary legal codes); (ill) charitra (customs); and (iv)
rajasasana (the royal decree). Severe penalties were imposed on the law-breakers. For
ordinary crimes, monetary fines were imposed. Hence, punishment was largely in the form of
fines. A punishment of mutilation could sometimes be changed to that of payment of a fine.
Capital punishment was known and practised. However, after Asoka converted to Buddhism,
he made a concession in capital punishment. Now, those condemned to die were granted a
three-day respite. During this period it was possible to make a final appeal to the judges.
According to Arthashastra, penalties in the Mauryan period were based on varna hierarchies.
It means that for the same kind of offence a Brahman was punished much less severely than a
Shudra.

According to the Greek accounts the criminal code of the Mauryas was rather severe
and sternly administered. A large number of ordinary offences like giving false evidence,
evasion of government taxes, causing serious hurt to artisans and workmen were punished by
mutilation and death. Judicial torture was used to extort confessions. There were 18 codes of
torture including seven varieties of whipping. Such a harsh criminal code had the good effect
on maintain peace and order. According to Megasthenese there were very few crimes and
thefts uncommon. As a result people left the door of their houses unlocked. Ashoka
introduced reforms in the judicial administration and procedure. He ordered that a respite of
three days was to be granted to person condemned to death so that his relatives might use the
interval to petition for mercy to the local authorities or enable the convicts to prepare
spiritually for death by giving alms or observing fasts.

Gupta Period:

The Guptas also had a fairly good judicial system. At the apex, the king was
considered to be the incarnation of justice and so justice was often administered by the
sovereign himself. The king presided over the highest court of appeal and he was assisted by
various judges, ministers and priests etc, their presence dependent on the nature of the case.
The judgment were usually made based on legal texts, social customs or specific edicts from
the king. There was also a high official called Mahadandanayaka who probably performed
the combined duties of the Great Judge and General. Another official closely associated with
him must have been the Mahaksapatalika or the Great Keeper of Records.

At the bottom, were various councils which were authorized to resolve disputes
between people. For example, in villages justice was administered by royal officials with the
help of the members of the village council or assembly. Hence justice was usually available
in the place a person lived or worked. In addition to official courts at the headquarters of
districts and provinces there existed a number of popular special courts of self-governing
corporations or guilds which decided disputes arising among their members. The criminal
laws during the Gupta rule were not as severe as it was in the time of the Mauryas. They
were mild and most of the crimes were punished only by fines varying in amounts according
to the gravity of the offence. Capital punishment was unknown and the highest punishment
for repeated rebellions was mutilation. Still law and order were well preserved and the
Chinese traveller, Fa-Hien toured all over India without molestation.

Administration of Justice during Harshavardhan’s times:

There was stability and peace in his empire. Hiuen-Tsang told us that during the reign
of Harshavardhana there were very few criminals and rebel. The Chief Judge during Harsha’s
time was known as Mahapramatara and the Record Keeper is styled as the
Mahaksapataladhikaranadhikrita. Judicial officers were called Nyayakarnika. Compared to
the Gupta period, the criminal code during Harsha’s time was very severe. The principal
mode of punishment were mainly mutilation of limbs, banishment into the jungles,
imprisonment etc. Trial by ordeal was also in vogue. For violation of the statute, law and
conspiracy against the king, the offender was imprisoned for life and was socially ostracized.
For breach of social mobility and filial duty, the penalty was mutilation of limbs or exile. For
minor ordinary offences the penalty was payment of money. In spite of this severity in the
administration of justice, highways were infested with robber gangs and the Chinese traveller
Hiuen-Tsang himself fell a victim to them.

Administration of Justice in South India:

In the regions ruled by the Chalukyas of Badami and Pallavas of Kanchi, the king was
the fountainhead of justice and the final court of appeal. In villages and rural tracts the
village courts decided the disputes. During the Rashtrakuta rule the king’s court did not
entertain any cases at the first instance and only when the parties felt dissatisfied with the
decision of the village courts, they could appeal to the king or his courts. There was a Chief
Judge who was the final appellate authority for cases coming from the lower courts, except
when the king decided them himself. The records of the Kalyani Chalukyas mention the
office of Dharmadhikari or chief justice. During the times of the Cholas we have references
to dharmasana in several inscriptions, probably signifying the king’s court of justice. Learned
Brahmins known as dharmasana-bhattas assisted the court. The village assemblies exercised
large powers in matters of local interest which they settled with the help of small committees
called Nyayattar or Nyayavattar. All offences- civil or criminal were tried in the first instance
in village courts and in cases of disaffection the matter was taken to the officer of the king’s
government-in-charge of the administration of the nadu. The Chinese writer, Chou-Ju-Kua
mentions about flogging or giving blows to the culprit with a stick after tying him to a
wooden frame for minor offence. It is said that punishments during the Chola period was not
all severe. Even for murder, the punishment meted out to the criminal was the payment of a
fine to the temple. During the time of Rajendra II the assassin of a state official was asked to
give 96 sheep towards the maintenance of a perpetual lamp in the temple. Hence it was
remarked that the Chola administration of justice could not be charged with severity or
vindictiveness, it may rather be regarded as swayed by over-mercifulness.

Conclusion:

Thus, the legal system of ancient India, represents distinct traditions of law, and had
historically independent schools of legal theory and practice. The Arthashastra, dating from
the 400 BC, and the Manusmriti from 100 BCE were influential treatises in India, texts that
were considered authoritative legal guidance. Manu's central philosophy was tolerance and
pluralism, and was cited across South East Asia.

The fundamental principles on which the judicial process in ancient India was
founded may be summed up as follows: The trial was always in public and always by several
judges collectively. Cases were heard in their serial order except in case of urgency. Delay
in the disposal of cases was condemned by all authorities and judges who were guilty of such
delay were liable to be punished. The Sovereign was not to interfere with the judiciary but on
the contrary the latter was under a duty to interfere in case of a wrong (judicial) decision by
the king. The Judges were to be impartial ; during the pendency of the suit they were
forbidden to have any private talks or relations with the parties. Corruption was the most
heinous offence in a judge and a corrupt judge was banished from the realm and forfeited all
his property. If a judge was guilty of partiality, or harassment, or deliberately violated the
prescribed procedure, he was liable to be punished. John W. Spellman, a contemporary
English writer has rightly remarked in his book ‘Political Theory of Ancient India’ that, "In
some respects the judicial system of ancient India was theoretically in advance of our own
today."
 Bibliography

I. Books:
1. Ancient Judicial System of India by Gokulesh Sharma, Deep and Deep
Publications, New Delhi, 2008.

2. India's Legal System by Fali S Nariman Penguin UK, 2006.

3. Essays on Legal Systems in India by Raj Kumar Discovery Publishing House, New
Delhi, 2003.

II. Articles:
1. The Indian Judicial System: A Historical Survey By Mr. Justice S. S. Dhavan, High
Court, Allahabad, (Accessed online at http://www.allahabadhighcourt.in/event/ The
IndianJudicialSystem_SSDhavan.pdf)
2. HISTORICAL BACKGROUND OF JUDICIAL SYSTEM IN India, (Accessed
online at
http://shodhganga.inflibnet.ac.in/bitstream/10603/7888/9/09_chapter%202.pdf)
3. The Legal system in ancient India by Shivaraj S.Huchhanavar, Faculty of Law in
K.L.E.Society's Law College, Bangalore.
(Accessed online at http://www.legalservicesindia.com/ article/ article/the-legal-
system-in-ancient-india-1391-1.html)

III. Web-Resource

a) Web-sites:
1. https://www.google.co.in/
2. https://www.google.com/
3. https://en.wikipedia.org/
4. http://indiankanoon.org/
5. http://muftbooks.com/
6. http://lawlex.org/
7. http://www.textbooksonline.tn.nic.in
8. http://cbseacademic.in/
9. www.legalservicesindia.com

Contd…
b) Web-Links:
https://ithihas.wordpress.com/2013/10/08/judicial-administration-in-ancient-india/

https://en.wikipedia.org/wiki/History_of_Indian_law

http://www.indianetzone.com/50/legal_system_ancient_india.htm

http://www.slideshare.net/vissu.madasu/judicail-system-in-ancient-india

http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf

http://shodhganga.inflibnet.ac.in/bitstream/10603/7888/9/09_chapter%202.pdf

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