1CONSTITUTION OF THE COURT OF JUSTICE (Manusmrti Bk.

8-1 to 26) At the very outset of this essay it has to be brought to the attention of the reader that unless we free ourselves from the stereotypes that we have been inured to during the last two centuries it will not be possible for us to arrive at an objective appreciation and assessment of the sociopolitical constitution incorporated in the Manusmrti. It is necessary to keep in mind that this constitution came into force more than five millennia back and had survived the vagaries of time and the shocks of submission to conquerors from abroad and deviations from the prescribed norms by rulers and their mentors. As we examine every one of the clauses of the extant code we would dwell on the charges levelled against it. The main charge and loud complaint voiced against this has been that it is unjust. Is this charge and complaint really valid? The ruler of the agro-pastoral plains, parthiva, was expected to follow the provisions of the constitution that Prthu adopted. [He is not referred to as a rajan, a dynamic chieftain who belonged to the cadre of aristocrats.] The Prthu constitution did not stipulate that the ruler should be a Kshatriya warrior by vocation or a Rajanya by birth. He could be but a commoner and an agriculturist chieftain, a kshiti-Isvara. He was also known as the chief of the agro-pastoral commonalty, as prthvipati. During the later Vedic period the agro-pastoral core society had two major strata, the rich governing elite, the devas, nobles who were a leisure class and who formed an enlightened cultural aristocracy and the commonalty, manushyas, prthvi or bhumi, who were engaged in agriculture, pasture and trade. The Prthu constitution marked a radical departure from the Atharvan polity that witnessed the dynamic Rajanyas, who were closer to the nobles, devas, and the feudal lords, asuras, electing a king, Rajan, from among themselves. It superseded the Atharvan constitution, which was given a definite form by Mahadeva, the Vratya Prajapati, and which was accepted as a consensus solution by most of the regions of the Indian subcontinent during the century preceding the tenure of the seventh Manu, Vaivasvata. It had the approval of Manu Vaivasvata and Kashyapa, the chief of his council of seven sages. The followers of Bhrgu, the chief editor of Manusmrti, had led a revolt against Vena, the autocratic ruler of Anga, a province to the southwest of Mathura, and installed Prthu, a charismatic agriculturist chieftain as the king. The new ruler was elected by all the commoners (who were taxpayers) directly and he was required to get approval for all his policies and projects from the paura-janapada assemblies that

represented the rich families of the city and the rural landlords. The nobles (devas) were not under his jurisdiction and he had to get their approval for all his new projects. They had effective control over the contributions to the state treasury and even over the army. But the civil administration and the courts of justice were under the new civilian ruler who was assisted by the bureaucracy operated by the talented officials, known as amatyas, by the secretaries of state, sachivas, and by the ministers, mantris. He could not act by himself. The Prthu constitution got freed from the main weakness of the then Rajarshi constitution that stood for the election of a highly educated but sober intellectual as the head of the state. The Rajarshi took all decisions and gave directions personally to all his subordinates including the judges. Vena misused this weakness in the Rajarshi constitution and became a greedy autocrat. The Parthiva was guided by Brahmans, scholars who had mastered the socio-political constitution, Atharvaveda or Brahma. They were jurists while the ministers were but political counsellors. It is wrong to presume that in ancient India the king was subordinate to the ecclesiastical order or that he and his political executive had to meet its expectations. These Brahmans were not ordinary priests or teachers by profession.(8-1) Buhler translates the verse as: A king desirous of investigating law cases must enter his court of justice, preserving a dignified demeanour, together with Brahmanas and with experienced councillors. Jones translated it as: A king desirous of inspecting judicial proceedings must enter his court of justice, composed and sedate in his demeanour, together with Brahmans and counsellors, who know how to give him advice. Jha, following Medhatithi, read it as Desirous of investigating cases (vyavahara), the king shall enter the court (sabha) with a dignified demeanour (vineeta) along with Brahmanas and councillors (mantris) versed in counsel (mantram). It may be noted here that administration and protection, palanam, of the subjects, the citizens, prajas, is the vocation, pravrtti, assigned to the king. The Kshatriyasearned their livelihood by carrying arms, the Vis (Vaisyas) by trade (vanika), by tending cattle (pasu) and by agriculture (krshi) and the Shudras by attending on the twice-born communities (dvijatis). [Manusmrti (1079)] The nrpa, the civil administrator of the interior who belonged to the stratum of free men, naras, has to be distinguished from the raja who belonged to the higher cadre of dynamic and powerful chieftains and theKshatriya who was a professional soldier. The nrpa who follows and implements the above vocational divisions reaches the unexcelled social world (loka) (of nobles). Thereby dharma flourishes in the social world (of commoners). Other classes (varnas) who earn a livelihood by following the Kshatriya vocation are entitled to kingship (rajyaadhikara). In the new dispensation not only ordained Kshatriyas who bear arms but also members of other classes are declared to be eligible for the position of a king provided they give up their other vocations and become soldiers.Only soldiers can rise to become kings. But it was

not necessary that these soldiers should have been born to soldiers. One cannot be an agriculturist and also a soldier. The Smrti holds the nrpa as one who administers and protects all the social worlds (sarva loka) (that is, the agro-pastoral commonalty, the leisure class of nobles and the industrial frontier society). His duty (karmanishta) as ordained is to look after the welfare of the common people (sadharana loka). The commentators do not attach much importance to the needs of the elite or to those of special vocational groups. Common weal of the common people is what the nrpa is expected to attend to. Administration, paripalanam, is essentially removal of sufferings of the people. These sufferings are of two types, manifest and non-manifest. When the mighty harass the weak and rob them of their wealth it is manifest trouble. It is non-manifest suffering when the mighty suffer in the other (itara) social world through the sin accruing from his transgressing the law (vidhi). It may be noted that the mighty if guilty were exiled to areas under the jurisdiction of the other society (itarajana), to forests and mountains, to suffer there. Commoners (manushyas) of the core society of the plains were not able to see the sufferings of these exiles. The subjects, prajas, often act towards one another in hatred and jealousy and hence go by the wrong path and become subject to unnoticed defects (dosham) (in conduct). As a result the state (rajyam) is ruined (nasa). Only sovereignty, aisvaryam, emanating from the wealth of the people (prajas) is defined as rajyam. In other words, it is wrong to define rajyam as what is owned by the sovereign, raja. When the wealth of the people gets destroyed where would be the state, rajyam? [Rajyam is basically an economic entity. It can be described as economic state.] Protection of sovereignty of the state requires that importance is given to settlement of economic disputes. The nrpa, civil administrator, is hence an important official. When economic disputes (vyavahara) are investigated and settled in accordance with the codes (sastra) and their coercive power (danda) through fear the litigants do not deviate from their respective path. Hence they become protected from both types of trouble, the manifest oppression and deprivation of the weak by the mighty and the non-manifest suffering of the mighty as exiles in the midst of the frontier society. The kings wealth is from taxes and fines. He does not have any other lawful (dharmashta) means of livelihood. He cannot pursue any vocation other than administration of the state nor have any personal property, which would yield him other incomes. Any obstacles to this would hence lead the state into trouble. It follows that for preserving the state he has to perform his duty (kartavyam) of overseeing the settlement of economic disputes in accordance with the procedure laid in the science of economic laws, vyavaharadarsanam. The term, vyavahara is annotated as: It is the name given to that action of the plaintiff and the defendant which they have recourse to for the purpose of reclaiming their rights. Or it may stand for the non-payment of debts and such other matters themselves, which often become the

subjects of dispute and as such fit for investigation, which thus becomes the duty (kartavyam) of the ruler. Here, the commentator uses the expression, gocharasamartha to indicate the ruler. It indicated one who was competent to look after the movements and activities of the people of the village (go). The nrpati was essentially a free man who was also a stoic with no personal interests and was perhaps a cowherd rather than an agriculturist or trader when he was invited to take over the assignment as a civil administrator. Most disputes were settled in the villages themselves and only a few were referred to higher authorities. The parthiva was not a Kshatriya ruler. He was a landlord as the medieval commentators recognized. He was not a scholar and had to depend on Brahman scholars who were jurists appointed by the council of scholars, samiti, and on the ministers, who were appointed by the house of nobles, sabha. Neither the king (rajan) at the centre nor the parthiva who was the administrator of the rural areas was empowered to appoint the jurists and the ministers. Theparthiva, though not highly educated, is modest in his bearing. He is not visualized as one desirous of giving a decision; he is only desirous of investigating the dispute as it has a bearing on the political economy of his state. The jurists, Brahmans, and ministers, mantris, who accompany him, are the persons competent to arrive at a solution and recommend the solution that would be pronounced as royal edict, raja ajnya. The next verse (8-2) is read by Jha as: There, either seated or standing, raising his right hand, subdued in dress and ornaments, he shall look into the suits of the suitors. Jones translated that he would examine the business of the litigant parties. Buhler uses the expression, business of the suitors. This was not necessarily an appellate court. It was basically a court to which special cases were referred to as the lower ones managed by the nrpati, a pious stoic, could not solve for want of opinions of the expert jurists and counsellors. The commentator says: This teaching regarding the king himself looking into the suits is with special reference to the inflicting of punishments (danda). The manual that described the procedure to be followed by the state while investigating a civil dispute was guided by the principles of dandaniti, political science. To be precise, dandaniti dealt with the principles and policies to be followed while exercising coercive power over others. The nrpati could impose fines on the delinquents but could not imprison them. He could not take any stand on the conflicts in practices prevalent among different clans and communities. But the parthiva had to look into these aspects in order to maintain peace in his territory. The entire investigation had to follow the procedure prescribed as raja darsana.

The implication is that by doing so, his act would be linked to his right and duty to protect (raksha adhikara) (the people). As this duty and power had not been given to any one else in this code, the 'parthiva could not appoint deputies or delegate this power to others. If he does not hear, it will not be heard at all. The parthiva is seen to be presiding over a special but open political court in his chamber. As for helping in the settling of doubtful points, the result of this investigation interests all persons (not the litigants only). As such like the rules of expiation, this also falls within the province of the learned Brahmans, the jurists. One who repented was required to perform expiatory rites to be accepted back into the family or clan or community. These rites were not prescribed by the state. They were regulated by the social constitution that bound all individuals and all ranks of the society equally. The Brahmans could only read them out for observance and only they could point them out, as they were conversant with the language and terms used. Similarly, they could help in settling doubts, which though economic in nature had social and political implications. On dilemmas that pertain to what is in accordance with or is in conflict with social constitution, dharma, on dharmasankata, let him (the Brahman) proclaim. It may be noted here that the rural administrator (parthiva), the civil administrator (nrpati), the king (raja), the minister (mantri), the secretary (sachiva) and the bureaucrat (amatya), all belonged to the political system and were not entitled (as they were not able) to solve the dilemmas pertaining to social laws. If the social laws of different classes or communities or clans were in conflict with one another, only the Brahman jurist could declare what was correct or more reasonable than others. But even he could not dictate on disputes over practices within the same clan or community or vocational group. It needs to be pointed out here that the Brahman could not either as a teacher or as a priest or as a jurist interfere with the practices of any clan or community or pronounce on their validity. The clans and communities were autonomous social groups and had their own bodies to settle internal disputes. However when a case is being investigated where the parties belong to the same profession, if some other persons belonging to that profession find that the points in dispute are such as would affect them all, then they are all entitled to take part in the investigation. In the rural hinterland, the decisions given on economic disputes(vyavahara) on the basis of the rules of the clan (kula) were considered liable to be set aside by those of the economic corporation (sreni); and these by those of the oligarchy (gana) of the heads of kulas and srenis. The latter could however be set aside by the authorized person (adhikrta) and his verdict by the civil administrator, nrpati. In other words, these ganas had to recognize the authority of the

state, which was represented by the arbitrator appointed by it or by the nrpati who was not a member of any organized clan. This stand of Naradasmrti is posterior to the practice prescribed by Manusmrti. Despite the passage of several centuries and imposition of Islamic and British laws by the later rulers this socio-economic hierarchy with respect to settlement of disputes has survived to this day. The expression, kulani, means a community of persons born as brethren (bandhujanasamuha). [It does not permit admission of persons not born as such. Adopted sons and appointed sons who are not born members of the clan do not have a voice in the matter being discussed by this community. The daughters who had been given away in marriage and their spouses too have no voice in it. But all generations of that clan are entitled to speak out.] The parties shall abide by the verdicts given by the clan. [Most disputes would have been settled at this level. It is foolish not to give the clan the importance due to it.] If however one of the litigants expresses lack of faith in the clan-court, then the case shall be referred to the corporation, sreni. We prefer to use the term guild for samgha where all the members had equal status. Thesreni had internal ranking based on the contribution made by the members. It was a body of traders and promoters who earned their livelihood from equivalent economic ventures (samanavyavahara). They were more influential than the brethren (bandhus) for the latter were afraid of the brothers and kinsmen of their wives (jnatis) and did not exercise a check on the person who deviated from the right path (dharma). The members of the corporation fought shy of any matter going before the king (raja), as that would lend the kings officers (rajapurushas) an opportunity to interfere in the work of the corporation (srenidharma). Hence they always took sufficient security from the parties concerned against their deviating from the decision arrived at. The council (parishad) of the corporation could impose fine (danda) on the delinquent. The ganas were vocational groups, which moved about as organized groups. They investigated the cases of disputes among themselves and for enforcing the decisions they appointed committees. In the case of members of the sreni, they could act singly also, but in the case of the gana they acted collectively. [It is not advisable to translate the term, gana, as tribe.] The sreni might appoint a member of the same clan as an arbitrator. Even others conversant with the basis of the case could be appointed as such. The adhikrta who was empowered to give his verdict was a scholar and jurist, Brahmana, who was learned in the three disciplines of study (traividya), the three Vedas, Varta and Dandaniti, humanities, economics and political policy. [The presumption that the Brahmana was eligible to speak only on matters pertaining to theology is unsound.] It had been laid down that such authorized person was entitled to pronounce verdict on dilemmas pertaining to social and other laws, dharmasankata. Such a person could overrule the decisions of the clans, the srenis and the ganas, because of his learning. The superiority of the nrpa, the

civil administrator who headed the free men at the disposal of the state as volunteers not bound by any clan or corporation or organized group, rested on his great power (sakti). When a case has been decided by a nrpa who is himself learned, there is no occasion for what is said in the words: If a party, even though (legally) defeated, thinks that he has not been justly (nyayena) defeated, he shall be fined twice the amount of the suit and the case reopened. This stand of Yajnavalkya did not accept that the decision of the ruler was final. Only if the nrpa was learned in the three disciplines and had mastered the methods laid down in nyayasastra and followed them, he could be empowered to function as the supreme arbitrator in civil disputes. It was not enough for a ruler to be pious or to be strong or both. He had to be learned also but very few were so. Similarly the cases decided by other arbitrators too could be reopened. No Rajan (king) had the final say and no Brahman (judge) either. Of course, it is easy to complain that judges have not decided rightly. But when the king (raja) who is superior to the civil administrator (nrpati) himself decides unjustly to whom one should appeal against his verdict? Another interpretation is that the person authorized (adhikrta) by the civil administrator (nrpa) is to be treated as the Brahmana who is in the place of the king (raja). This jurist, Brahmana was entitled to represent the head of the state. The head of a household may be nominated to settle all disputes among its members. He may deal with all cases except those acts that were conducive to depravity. He might not inflict corporal punishment though he had disciplinary powers. In the case of minor offences he acts like the king but he must report the serious offences to the latter. The rights of the several persons pertain to different types of cases. The king could inflict punishments (danda) including corporal punishment. The Brahmana jurist could only pronounce judgments. The motive of the king in looking into cases consists in the proper administration of the state while that of others lies only in settling doubts for the benefit of others so that there is no case of cross-purposes arising. It is implied that the king may go in for political expediency while the jurists and others may have public interest as the main determinant. The king(raja) should settle the disputes through careful investigation. [Otherwise if the parties come to an agreement by themselves, where would be the supremacy of the king?] The next verse (8-3) has been translated by Buhler as: Daily (decide) one after another (all cases) which fall under the eighteen titles (of law) according to principles drawn from local usages and from the institutes of the sacred law. Jones translated it as: Each day let him decide causes, one after another, under the eighteen principal titles of law, by arguments and rules drawn from local usages and from written codes. Jha reads it as: He shall look into the suits, day after day, one by one, falling as they do under eighteen heads, according to principles deduced from local usage and from the scriptures

(sastra). The eighteen heads are enumerated in the ensuing verses. Jha has provided a translation of Medhatithis exhaustive comments on this verse. Since most of the rules pertaining to trial of cases were developed at different times in the history of ancient and medieval India, it would be incorrect to presume all of them were available or were in vogue when the Manava Dharmasastra was first drafted. Most of the disputes were settled within the family or the clan or in the village itself with the litigants being forced to tell the truth whether there were witnesses or not. But when the matters were referred to the king especially of a large state the procedure for hearing them had to be regulated. First and foremost, the practices in vogue in any particular region, desa, were to be honoured and not meddled with if the king did not want to have a revolt on his hand. In issues that did not involve local usage the judiciary had to follow the codes, sastras. While many insist that it is a reference to Dharmasastra, to Manusmrti in particular, it needs to be recognized that the importance of Arthasastra is not to be overlooked. Arthasastra dealt with the intricacies of economy in depth and refused to handle issues pertaining to ethics and morality. Dharmasastra too took economic issues into account though it refused to give primacy to economy, artha. However in settling economic disputes, Dharmasastra was interested in maintaining status ante. It was not interested in the issue whether the offence was caused by the injustice inherent in the past system or not; and whether the disturbance to that past was intended to create a more just and a better social order or not.Dharmasastra were convinced that they were right in calling for a restoration of the status ante Advocates of and return to the immediate past. The sastras, codes, try to protect those practices that have been found beneficial and acceptable to most of the people; and to prohibit what have been found to be harmful. Those who honoured the local practices did not wait to inquire into these factors. But the presence of the particular usage had to be ascertained and the meaning of the injunctions specified in the sastras understood correctly. The parthiva who was essentially an agriculturist was not able to do so without the help of the jurists and ministers. The Atharvan ruler was a Rajanya, a dynamic chieftain who belonged to a social stratum that was on par with the liberal aristocracy. But he was not learned and was not a sovereign. He could not hence be a judge. In the Atharvan polity, the local community with the help of its council of scholars, headed by the official designated as Agni decided all issues pertaining to moral, civic and social laws while sabha, the house of nobles headed by Indra decided on those pertaining to economy and political and constitutional issues. The Rajanyas too had to accept and abide by these decisions and the officers designated as Yama, Varunaand Mitra executed these. There was no separate judiciary in the Vedic state. The two bodies, Sabha and Samiti functioned as two houses of the legislature. But with the passage to the plebeian social polity of the Manava Dharmasastra, the house of nobles dropped back and so too the council of scholars. The eight-member ministry headed by Indra came to the fore.

Meanwhile in the larger Vedic state, the house of nobles had only thirty-three members including the Viraj (the head of the circle of five kings), Prajapati (the chief of the peoples) and Mahendra (the chief of the committee of Indras who controlled finance and treasury) and a small seven-member council of seven sages. But it had a huge council with one thousand members who were trained visionaries, chakshus (spies, as wrongly construed). This system too lacked a separate judiciary. It allowed the Prajapati to play the role of the chief judicial officer with the aid of the eight-member ministry. Manava Dharmasastra was the recipient of this legacy of a strong state aided by a powerful and rich aristocracy and guided by a large intelligentsia. Its executive itself functioned as the judiciary and when the executive was weak the king became an autocrat who functioned also as the judge without caring for precedents, practices and codes. Bhrgu, the chief editor of Manusmrti, was against such autocrats. The sages encouraged the commonalty to come to the fore and displace such Kshatriya rulers. Right became mightier than might with the former codified and the king subordinated to the constitution and to the code. The new ruler, parthiva, who followed the Prthu constitution, was a leading member of the agropastoral commonalty and not an aristocrat or a plutocrat or a technocrat. He was assisted by a team of village chiefs,adhyakshas, civil administrators, nrpatis, who had limited magisterial powers and a network of informal spies drawn from the ranks of free men (naras) who were not subordinate to any clan or community. This administration developed a political system based on the concept of seven constituents, king, bureaucracy, city, rural hinterland, treasury, army and political ally. But it still did not develop the concept and structure of an independent judiciary. It was still a quazi-feudal state without a rational and permanent bureaucracy. However, it did not take long to develop a rational bureaucracy and along with it an independent judiciary. This development belongs to the field of Arthasastra, which refused to leave judiciary out of the orbit of polity. Manava Dharmasastra did not develop an independent judiciary but facilitated the incipient bureaucracy to function also as the judiciary. It however laid the basis for objective investigation of economic disputes and criminal acts and awarding of just punishments in cases that did not come within the ambit of the village and domestic officials. Arthasastra developed the formation of a cadre of dharmasthas who functioned as trustees of public property, orphans and widows, caretakers of the aged and the handicapped and also as members of the judiciary functioning along with the bureaucracy, amatyas, who had coercive power too. Manusmrti anticipated this development when it required the king to be accompanied by jurists (Brahmans), and political counsellors (mantris), when he presided over the bench at his palace to which nobles, scholars and representatives of commoners were invitees.

The later Smrtis and the medieval scholars like Medhatithi and Kulluka were anxious to ensure that Brahmans who were pure and honest, intelligent and learned, objective and conservative were associated with this politico-economic judiciary besides dominating the sociocultural bodies that functioned at the village level. The decline of the Brahmans harmed the entire judicial system and helped the mighty and the rich and the educated to exploit the weak and the poor and the ignorant. This decline was however inevitable and not unanticipated. The parthiva, the ruler functioning under the Prthu constitution had to first inquire what had led to the dispute that was referred to him. It might be traced to doubts about the validity of the custom present in the region concerned. While the village or a group of villages may have been following a particular practice for ages and would not tolerate its violation such solidarity could not be expected of a region where diverse and even contradictory practices might have been in vogue for a long time. Rarely one or two outsiders could settle in a village dominated by a single clan (kula) or community (jati) as secondary residents and they did not dare to raise voice against its overwhelming majority. But the administration of the region (desa) had to face diverse views and practices. And it was difficult to arrive at a common denominator that all would consent to abide by and similarly would eschew from their lives practices that were contradictory to this common practice. When the bench headed by the parthiva met it had this task of determining the common denominator and it functioned as an arbitration board rather than a judiciary jealous to guard its supremacy. The details of the events had to be reread in the light of this common stand that was bound to vary from region to region and even in the same region from time to time. No verdict can be treated as a precedent set forever and binding on all the population of the large state. In contrast, the code that depended on the meaning of the letter of the law had to first ascertain that meaning and decide whether the act under dispute did indeed violate that meaning. It gave little room to take refuge under the vague term, the spirit of the law. Once the bench discusses the meaning it proceeds to examine the details of the case and give the verdict and specify the penalty imposed. The parthiva had to assign some time every day for this duty. The views of Arthasastra and the later Smrtis and commentators on the details of these proceedings are important and are dwelt on later. The rivalry between the two strata, the executive known as Kshatras headed by the Rajan who wielded Rajadanda and the judiciary known as Brahmans who exercised Brahmadanda has to be presented properly. The parthiva was neither a king nor a judge. He only implemented the direction given by the bench of the judiciary, which met and discussed the issues in his presence and under his presidency. He had no power to intervene in its proceedings or set aside its verdict. Jha enumerates the eighteen heads of disputes as: (1) non-payment of debt (rna adanam) (2) deposits (nikshepa) (3) selling without ownership (asvami vikraya) (4) joint concerns (sambhuya

samutthanam) (5) non-delivery of what has been given away (dattasyaanapakarma) (6) nonpayment of wages (vetanasyaadanam) (7) breach of contract (samvida vyaktikrama) (8) rescission of sale and purchase (krayavikraya anusaya) (9) dispute between the owner and the keeper (vivadasvamipalaya) (10) disputes regarding boundaries (seemavivada) (11, 12) assault, physical and verbal (dharma parushya and dandavachika) (13) theft (steyam) (14) violence (sahasa) (15) adultery (strisamgrahanam) (16) duties of man and wife (stripumdharma) (17) partition (vibhaga) (18) gambling and betting (dhyutam ahvyam). These are the eighteen topics that form the basis of lawsuits (vyavaharasthiti), according to Manusmrti. (8-4 to 7) Jones who was the first British lawyer to recommend Manusmrti as the basis for civil administration in India enumerated these titles of law as: (1) debt, on loans for consumption (2) deposits and loans for use (3) sale without ownership (4) concerns among partners (5) subtraction of what has been given (6) non-payment of wages or hire (7) non-performance of agreements (8) rescission of sale and purchase (9) disputes between master and servant (10) contents on boundaries (11,12) assault and slander (13) larceny (14) robbery and other violence (15) adultery (16) altercation between man and wife and their several duties (17) the law of inheritance (18) gaming with dice and with living creatures. These eighteen titles of law are settled as the groundwork of all judicial procedure in this world. It was not necessary to translate iha as in this world. Naradasmrti which is considered by some to be the most systematic of the Smrtis on this aspect has enumerated them as: (1) recovery of debt (2) deposits (3) partnership (4) resumption of gift (5) breach of contract of service (6) non-payment of wages (7) sales effected by a person other than the rightful owner (8) non-delivery of sold chattel (9) rescission of purchase (10) transgression of a compact (11) boundary disputes (12) mutual duties of husband and wife (13) law of inheritance (14) heinous offences (15) abuse (16) assault (17) games (18) miscellaneous. Brhaspatismrti says that lawsuits are of two kinds as they originate in demands regarding wealth or injuries. The former is of fourteen kinds: (1)-lending money on interest (2) deposits and treasure trove (3) invalid gifts (4) concerns of partnership (5) non-payment of wages (6) disobedience (7) disputes concerning land (8) sale without ownership (9) revocation of sale and purchase (10) breach of agreements (11) law between wife and husband (12) theft (13) inheritance (14) gambling. The latter is of four kinds: (1, 2) two kinds of insult, (3) violence, and (4) criminal connection with the wife of another man. Kautilyan Arthasastra presents these under different heads: (1) Concerning marriage, property of a woman and compensation for remarriage of men (2) Duty of a wife, her maintenance, enmity between wife and husband (3) Vagrancy, elopement (4) Division of inheritance (5) Special shares in inheritance and distinction between sons (6) Buildings (7) Boundary disputes (8) Destruction of pasture lands, non-performance of agreements (9) recovery of debts (10) Deposits (11) Rules regarding labourers (12) Cooperative undertaking (13) Rescission of purchase and sale (14) Sale without ownership (15) Resumption of gifts (16) Robbery (17) Assault and (18) Gambling and betting. The approach of Kautilya to the issues covered here is thorough and distinct and is dealt with separately. (Vide my treatise on Foundations of Hindu Economic State.)

Jha translates the verse (8-8) as: Taking his stand upon eternal morality (sasvata dharma) he shall form his decision (nirnayam) on the suits of men (nrs) who mostly carry on (charata) disputes (vivada) in regard to the aforesaid points. Jones read it as: Among men who contend for the most part on the titles just mentioned, and on a few miscellaneous heads not comprised under them, let the king decide causes justly, observing primeval law. It is wrong to translate sasvata dharma as primeval law. It is eternal law; law legislated for all times, past, present and future. Sanatana dharma also has the same note but it gives more value to traditional practices than to the new decrees. Adidharma is said to be the oldest of the laws. Sasvata dharma is what is legislated forever. This status is claimed for Manava Dharmasastra. It was held to be not only moral and just but also as consented to by all sections of the then larger society as a consensus. The administrator could deal with only the disputes among free men (naras). The commoners (manushyas) who belonged to clans and communities could not present their disputes to him for arbitration. Buhler translates the next verse (8-9) as: But if the king does not personally investigate the suits, then let him appoint a learned Brahmana to try them. Jones read it as: But when he can not inspect such affairs (karyadarsanam) in person, let him appoint, for the inspection of them, a Brahman of eminent learning. Jha reads it as: When he (nrpati) himself may not carry on the investigation of suits, he shall appoint a learned (vidvan) Brahmana to do the work of investigation. The power and duty to investigate was vested in the local civil administrator, nrpati. He was permitted to appoint (niyukta) a learned Brahman to investigate but the latter was not given the right and duty to give a verdict. This feature of the powers of the Brahman who was appointed by the civil administrator, nrpati, as an investigator of facts stands distinct from the powers of theBrahman jurist who was appointed by the parthiva, the administrator of the rural areas, to pronounce a verdict on conflicting practices. The medieval commentators were imprecise when they interpreted, as translated by Jha: If the man is conversant with morality (dharma), he does not allow himself to be misled. Knowledge of the science of morality (dharmasastra) comes in useful. As for the knowledge of legal procedure (vyavaharadarsanam), its presence is already implied. When the man is appointed to do the work of deciding legal cases (vyavaharanirnayam), it follows that he is possessed of that knowledge without which such cases can not be decided. Jha translates the next verse (8-10) as: That man accompanied by three assessors shall enter the excellent court (sabha) and either seated or standing shall investigate the suits on behalf of the king. The Brahman appointed by the king is permitted to appoint three assessors to assist him. These had to be scholars (vipras) in Vedas. The vipras were not attached to clans and were scholars who moved about educating the commoners and were not professional teachers. They were expected to give correct and unbiased

views on the matters referred to them. These three vipras and the Brahmana who was a jurist authorized by the king (raja) constituted the Brahmana sabha. It had legitimacy. The nrpati, the local civil administrator had appointed the Brahmana and the head of the state had given authority to that jurist and the three assessors selected by the latter to function as a constitution bench to hear the dispute on behalf of the king. The Brahmana who was asked to handle the issue while the nrpati stepped aside must have been a member of the body of jurists recognized by the King (Rajan) under whom the nrpati and the parthiva functioned as administrators. The Brahmana Sabha dealt with socio-political issues that emerged from economic disputes and was not concerned with religious practices or issues pertaining to theology and soul. Brahma referred to Atharvaveda, the socio-political constitution of the Vedic age. (Ignoring Atharvaveda and granting the status of Brahma to all the Vedas were considerably later developments.) Dharmasastra emerged as the socio-cultural constitution and Arthasastra as the politico-economic constitution. Jha translates the verse (8-11) imprecisely as: That place where three learned Brahmanas learned in the Veda sit, as also the learned Brahmana appointed by the king, they regard as the Court of Brahmana. Jones was totally off the mark when he translated it as: In whatever country three Brahmans, particularly skilled in the three several Vedas sit together with the very learned Brahman appointed by the king, the wise call that assembly the court of Brahma, the court of Brahma with four faces. Buhler translated it as: Where three Brahmanas versed in the Vedas and the learned (judge) appointed by the king sit down, they call that the court of (four-faced) Brahma. This was a misconception about the constitution of the Brahma sabha. Jha translates Medhatithis stand as: The name of Brahman has been mentioned for the purpose of extolling the court; the sense being that the court constituted as here stated is as unexceptionable as that of Brahman himself. The medieval commentator had lost touch with the Vedic and early post-Vedic social polity and missed the note that it was a constitution bench presided over by an expert in Atharvaveda that was meant here. The other three were scholars in the other three Vedas. The Smrtis have not held identical views on this nomination of a Brahman as a judge. Most permitted any qualified member of the three higher classes being so appointed as judge in place of the Kshatriya ruler and a Brahman preferably. But Sukraniti felt that the king should always appoint men of the caste (class) to which he himself belonged as most members of the royal caste (Rajanyas) were likely to be wellequipped. It was a political post and it was not advisable to depend on a Brahman for the post of a judge, this work felt. Brhaspati was for a large bench of ten members. Jha points out that Sukraniti was for a bench of three or five or seven members. Both were against entrusting the work of the judiciary to only one person. Medhatithi has not commented on the next verse (8-12): In a court (sabha) where justice is pierced by injustice and the members of the court do not remove that dart, these members also

become pierced. (Jha) Buhler translates it as: But where justice (dharma), wounded by injustice (adharma), approaches and the learned (judges) do not extract the dart, there they also are wounded (by that dart of injustice). Katyayana states: Where a decision is taken by councillors against the laws, there justice is slain by injustice. The editors of Manusmrti advise the judges: One should either not enter the hall (sabha) at all or he should speak out what is equitable (samanjasam); one (nara) who either speaks nothing or speaks falsely becomes tainted with sin (kilbisha). (8-13) Why did these editors use the word nara in this context? The free man (nara) need not have fear and should speak only the truth. The free men(naras) referred to here, had given up the membership of their original clans and communities. These naras manned the rural bureaucracy headed by the nrpati. [A vipra too was such a free man.] When called upon to report what had actually happened this employee of the local government should speak out the facts and not mislead the investigators by suppressing the facts or giving false declarations. If that free man feared to give damaging evidence he should avoid appearing before the court. Sukraniti suggests that it being an open court any one who knows the truth can enter it and speak out. Medhatithi comments: When even an unauthorized person happens to be present, if he finds that the judges are acting wrongly, he should not remain silent. If he fears molestation at the hands of the kings officers as to why he should speak when he is not authorized to do so, then he should go away from that place. He seems to have read more than what Manusmrti meant. Where justice (dharma) is destroyed by injustice (adharma) or truth (satya) by falsehood (anrtam), while people are looking on, there the members of the court (sabhasada) also are destroyed. (8-14) The term anrta is to be understood as what is against the law of nature. It needs to be noted that the laws of nature (rta) that were based on humanitarianism emanating from empathy (rta) guided the society of the early Vedic age. But it was also true that that age witnessed coercion of the weak by the mighty and the operation of matsyanyaya, the smaller fish being swallowed by the larger. This contradiction was corrected during the later Vedic age that upheld satya and declared that right is might and that truth will always win. By the end of the Vedic age, both satya and rta were supplemented and even modified by the social laws, dharma, based on consensus. The editors of Manusmrti were eager to stress that their call for protection of the people who abided by the code based on dharma, which aimed at ensuring social stability and advocated the principles of tolerance and non-violence was in no way a departure from the earlier laws based on rta and satya. The proceedings in the court were guided by the principle that persons who stood by dharma should not be defeated by those who followed a path contradictory to it. When the liberal and tolerant codes based on Rta were superseded by the code based on rigorous adherence to truth, Satya, the latter were opposed by the sadists (anrtam) who were known as asamanjasa, unperturbed by the sufferings of other human beings. Samanjasa required that empathy should

lead to the removal of the sufferings of others. Those who refused to abide by the codes based on dharma were similarly acting against the interests of those who abided by it. Dharmasastra was not so rigid as the laws based on Satya or as liberal as those based on Rta. Even this middle path was under threat from the practitioners of adharma. The threat from the kings officers to the free man (nara) who wants to speak out the truth though not permitted to take part in the proceedings of the court is an assault on dharma. Naradasmrti too warns that where justice is slain by injustice and truth by falsehood, the members of the court who look on with indifference become doomed to destruction. Dharma has not always been able to win, it has to be acknowledged. The editors of Manusmrti counsel: Justice (dharma) blighted (hata) blights (hanti); preserved, preserves (rakshita); hence justice should not be blighted lest blighted justice blight us. (8-15) Manusmrti calls upon the participants in the court proceedings to ensure that the code based on the principles of dharma was protected. It was in their own interests that dharma was not harmed in any manner. [The term, dharma is not identical with the term, justice though it is closer to the latter than to the term, religion which requires faith in a supernatural power and the means prescribed for salvation.] Medhatithi comments; Judgment should not be perverted, through fear; because justice, when violated, blights our prosperity as also the prosperity of the sinful party and his helpers. Manusmrti adds (8-16): For justice (dharma) is the revered (bhagavan) bull (vrsha); and he who commits the violation (lam) of it, him the gods (devas) regard as low-born (vrshala); hence one shall not violate (lopaya) justice (dharma). (Jha) Buhler translates this verse as: For divine justice (is said to be) a bull (vrisha); that (man) who violates it (kurutelam) the gods consider to be (a man despicable like) a Shudra (vrishala); let him, therefore, beware of violating justice. Mahabharata (Santiparva) has referred to the violation of justice using this imagery. This verse seems to be a later interpolation effected by the orthodox elements who had become desperate as the state and the judiciary failed to upholddharma. The followers of Siva (Rudra) who has later been deified revere the stud. The nobles (devas) who belonged to the cadre of Rudrashad pronounced the violators of the sanctity of Vrshabhaas outcasts (vrshala). [Vrshabha was a teacher (bhagavan) belonging to the Saivaite school, which stood by the Atharvan sociopolitical constitution. The Sramanas too followed Vrshabha. These Sramanas and the Atharva Brahmans enjoyed equivalent statuses in the polity when the Manava Dharmasastra and the Arthasastra of Pracetas were first drafted.] Jones translated this verse as: The divine form of justice is represented as Vrshabha, a bull; and the gods consider him who violates justice as a vrshala or one who slays a bull; let the king therefore and his judges beware of violating justice.

The description, divine form of justice is unwarranted and is misleading. The interpretation that the Shudras were called Vrshalas is unwarranted. It is however to be noted that the Rudras were pushed into the forests during the later Vedic times by the other three cadres of nobles (devas), Vasus, Maruts and Adityas. Later the followers of the Rudras were refused entry into the three higher varnas, social classes, and declared as Vratyas and Shudras though they were highly religious. Vrshala was one who was unable to control his urge for sex and who exposed his penis and was a threat to civilized society. Jha translates the next verse (8-17) as: Morality (justice) (dharma) is the only friend (suhrta) who follows one even after death (nidhana); every thing else perishes along with the body. Dharma assures one that he would have no rebirth and if he had one, he would be born in a high family. In this verse the editors tell the parties to the dispute and the assessors that only the merit accruing from upholding of justice, dharma would stand good at the end. Suhrta or Mitra was a Vedic official who functioned along with Varuna who took into custody the person who failed to perform his duty and repay his debts to the nobles, the sages and the elders (devas, rshis and pitaras), the three non-economic cadres of the society. Mitra who witnessed the action taken against the guilty was however visualized as a well-wisher of the latter. The Vedic official designated as Dharma, the upholder of justice, morality and social stability, was later equated with Yama, the Vedic controller who came down heavily on those who violated the prohibitory orders. (Yama is often presented as the god of death.) The editors of Manusmrti would present Dharma as a friend, philosopher and guide who recommended the pursuit of lasting spiritual benefits in contrast to the temporary and worldly gains that man tended to follow. Buhler translates the next verse (8-18) as: One quarter of (the guilt of) an unjust (decision) falls on him who committed (the crime), one quarter on the (false) witness, one quarter on all the judges (sabhasada), one quarter on the king (rajan). The ideal situation required the king (rajan) to preside over the house of nobles and scholars, which would try the case and pronounce the verdict after allowing everyone to speak out his views. The Brahmasabha with the Brahmana (who was an expert in Brahma, that is, Atharvaveda, the socio-political constitution) hearing the case assisted by three Vipras (who were scholars each in one of the other three Vedas) was a constitution bench. It considered only legal dilemmas and recommended what it felt to be the correct finding. It was not to be throttled by the kings men. Of course all who were party to the miscarriage of justice would be held guilty and punished equally whether he was the delinquent or the witness or a member of the bench or its presiding officer. This verse is not to be interpreted as exonerating the guilty Brahmana judge or the king.

Jha translates the verse (8-19) as: Where, however, the person (kartaram) deserving of censure (ninda) is actually censured, there the king (raja) becomes sinless (anena), the members of the court (sabhasada) become freed (muchyanta), and the sin falls upon the perpetrator (ena). Buhler translates it as: But where he who is worthy of condemnation is condemned, the king is free from guilt, and the judges are saved (from sin); the guilt falls on the perpetrator (of the crime alone). Jones read it as: But where he who deserves condemnation shall be condemned, the king is guiltless and the judges free from blame: an evil deed shall recoil on him who committed it. The two verses read together indicate that the constitution bench, Brahmasabha, could reexamine the case tried by the king in his open court and might find the verdict given by him and the court valid or invalid. If he had acquitted the guilty, then the guilty, his witness, the officers of the court and the king were all found to be wrong and punished. If the guilty had been penalized correctly, then the king and members of his court would be pronounced as free from procedural errors. There could be no exoneration of the criminal on technical grounds. The comment attributed to Medhatithi, Where the guilty person is not able to hide his guilt and hid guilt is duly exposed then everything turns out to be right is not to the mark. The next verse (8-20) has raised eyebrows. Jha translates it as: Even a so-called Brahmana (brahmanabruva) who makes a living (upajivi) by his caste only (jatimatram) may at pleasure (kamam) be the propounder of the law (dharmavakta) for the king (nrpati), but not a Shudra under any circumstances. Buhler interpreted it as: A Brahmana who subsists only by the name of his caste (jati) or one who merely calls himself a Brahmana (though his origin be uncertain) may, at the kings pleasure, interpret the law to him, but never a Shudra. Jones interpreted it as: A Brahman supported only by his class, and one barely reputed a Brahman but without performing sacerdotal rites may at the kings pleasure interpret the law to him; so may the two middle classes; but a Shudra, in no cases whatever. The choice made by the administrator (nrpati) while appointing one to the bench is not questioned unless that assessor or judge happens to be a Shudra, an uneducated worker. A Brahman by birth (jati) and by personal claim was preferred to Kshatriyas and Vaisyas for nomination to the post of a judge. The local civil administrator, nrpati, made the appointment and it was ratified by the king, the head of the state, and the Brahman was authorized to preside over the constitution bench. The other three members were Vipras recommended by that judge who was well versed in the Atharvaveda, the socio-political constitution and the three Vipras in the other three Vedas. [The Vedas were not theological works. While the Rgveda described the socio-cultural constitution of the Vedic times in its hymns which were chronicles of those and earlier times, Atharvaveda enshrined the socio-political constitutions of those times.]

Often the civil administrator (nrpati) was unable to get such a Brahman who was a jurist. In such a situation, he might appoint any member born in the vocational community of Brahmans who functioned as priests to earn their livelihood or who claimed to be Brahmansthough functioning as landlords or traders. This decadence was noticeable during later centuries. The medieval commentator, Medhatithi, was aware of it but he did not stress that it was the malaise of the migration of Brahman scholars to selected centres of learning and royal courts. The judiciary (even in the districts and lower levels) required educated members on its benches. It could not afford to have uneducated workers as its members. It is irrational to treat this as social discrimination practised and incited by the Brahmanical castes against Shudra castes. Every context in which there appears to be discrimination against the Shudras who were illiterate workers and had no personal property should be examined carefully before concluding that the BrahmansKshatriyas were prejudiced against them. and the Jha reads the next verse (8-21) as: The kingdom (rashtram) of that king (raja) for whom the investigation of law (dharmavivechanam) is done by a Shudra, while he himself is looking on suffers like the cow in a morass. Jha rejects the stand of Medhatithi that dharmavivechanam meant decision on legal cases (dharmanirnayam). It was the duty of the king to invite a jurist to interpret the constitution. If he failed to assert his position as the head of the state and appoint such a qualified jurist as the head of the constitution bench that would analyze its provisions and give the apt interpretation, and instead allowed the workers to have their way, it would affect the rural hinterland (rashtra) adversely. [It is incorrect to translate the term, rashtra as kingdom or as a sovereign ethnic entity of native peoples, nation. Only the term, janapada, denotes the latter entity.] A Shudra being uneducated would not be able to study and interpret laws correctly. [One who has acquired formal education is not to be included in the class of Shudras.] There would be miscarriage of justice if an ineligible person is appointed as a judge. Most of the civil disputes concerned property and the Shudras who had no personal property did not have acquaintance with the laws governing these. Even disputes pertaining to marriage were linked to property. Jha translates the verse (8-22) as: That kingdom (rashtra) where there is a majority of Shudras, which is infested with non-believers (nastikas) and destitute of twice-born people (dvijas), quickly perishes entirely, becoming afflicted by famine and disease. The intention was to get a vast majority of the population (especially of the rural hinterland, rashtra, educated and enabled to have personal property and freed from being servants of others. Medhatithi and many other writers of the later times tried to avoid facing this reality and argued that this calamity was the consequence of having judiciaries filled in by uneducated Shudras and atheists among Brahmans and other classes. But this intention was not translated into reality and by the medieval times most countries suffered from illiteracy, poverty, famine and disease and a few monopolizing all lands. Some attributed this reality of decline to the spread of atheism. In fact, loss of faith in the almighty god was the consequence of this misery.

This argument cannot be brushed aside lightly. Justice cannot be tempered with mercy by those who do not believe in the existence of the great soul and who conduct themselves as the final arbiters of the destiny of all at their mercy. By the term, nastika, Medhatithi understood those persons, as were materialists (lokayatika), denying the existence of other social worlds (paralokas). Lokayata meant social control and it denied the state and the clergy any right to interfere in the economic pursuits of the people and claimed that the latter could regulate their conduct by themselves without reference to precedents or permanent social legislation. The followers of lokayata, most of whom were commoners and admirers of Brhaspati, rejected the need to arrive at social integration (lokasamgraha) and refused to recognize or interact with the other social worlds, the generous aristocracy and the industrious industrial society of the forests and mountains. They did not look beyond the right of the individual in the commonalty (to be precise, of a member of the bourgeoisie) to pursue his interests. They ignored the cultural aristocracy and also the intelligentsia. Jha translates the next verse (8-23) as: Having occupied the judgment-seat (dharmasanam adhishtaya), with his body covered and mind collected, he shall salute the guardian-deities (lokapalas) and then proceed with the investigation of suits (karyadarsanam). Jones read it as: Let the king or his judge, having seated himself on the bench, with his body properly clothed and his mind attentively fixed, begin with doing reverence to the deities, who guard the world; and then let him enter the trial of cases. Buhler read it as: Having occupied the seat of justice, having covered his body, and having worshipped the guardian deities of the world, let him with a collected mind begin the trial of causes. The term Brahmasanam indicates that it was a constitution bench chaired by the expert in the Atharvaveda, Brahma, (assisted by the three Vipras) and not an ordinary single-member bench chaired by the civil administrator (nrpati) or by the rural administrator (parthiva) or by the king (raja). Dharmasanam would indicate an ordinary bench that would base its decisions on the social code, dharmasastra. A nrpati or a parthiva or a king (raja) could occupy this latter seat though he was not an expert in law. It was not a political or economic session chaired by the king though these aspects were not barred from being considered. The main concern was with dharma, as Medhatithi points out. Jha was imprecise when he translated it as that seat upon which the pronouncing of judgments is the principal work done. Medhatithi explains lokapalas as the eight lokapalas (guardians of the peoples), Indra etc. The term, lokapalas, referred to the eight-member ministry, Indra, Agni, Aditya, Soma, Vayu, Varuna, Kubera and Prthvi who represented the different sectors (cultural aristocracy, civil judiciary, coercive power of the state, intelligentsia stationed in the forests and mountains, the mobile populations, the higher judiciary dealing with duties, plutocracy and bourgeoisie) of the larger integrated society.

It is wrong to describe them as guardian deities. It is also wrong to hold that they were the recipients of the gifts or of salutation. It was the court etiquette to respect them as guardians of the peoples. [It is imperative to reject the postulate that Indra, Agni etc. were deities of the Vedic society that was noted for its worship of nature in its various forms and for polytheism. Lokapalas were human beings and administrators and not gods.] Buhler translates the next verse (8-24) as: Knowing what is expedient (artha) or inexpedient (anartha), what is pure justice (dharma) or injustice (adharma), let him examine the causes of suitors according to the order of the castes (varna). Jha translates it as: Understanding (budhva) both desirable and undesirable to be only justice and injustice, he shall look into all the suits of the suitors according to the order of the castes. Jones translated it as: Understanding what is expedient or inexpedient, but considering only what is law or not law, let him examine all disputes between parties, in the order of the several classes. Medhatithi seems to have noted that the king as the judge was asked not to decide the case on the basis of what would be a gain to him in terms of gold. It was expected that the king would not seek guidance from the provisions of the Arthasastra on what was economically profitable (artha) and what was economically harmful (anartha) though it was an economic dispute. He was asked to take the guidance of Dharmasastra that stood for morality, ethics and justice. This was the counsel that the unattached intellectuals (budhas), especially of the social periphery gave him. They were the spokesmen of the individuals of the unorganized sector who were the victims in the expansionist moves sanctioned and inspired by the Arthasastra. These intellectuals (budhas) were willing to accept Dharmasastra as it protected the interests of all classes and all sectors but had reservations about Arthasastra. While examining the cases, the judge was advised to follow the rules of varna hierarchy. This must have been a later interpolation by Brahman scholars who were afraid that the intelligentsia of the periphery (who had not accepted this hierarchy) might upset their apple cart by insisting on equality of all litigants. Jha translates the next verse (8-25) as: He shall discover the internal disposition of men (nrs) by external signs: by variations in their voice, colour (varna) and aspect, as also by means of the eye and by gestures. Not all the members of the larger society had been assigned to one or the other of the four classes, varnas. The nrpati had risen from the ranks of the free men, nrs or naras. The settled clans and communities could be distinguished easily on the basis of their occupations and classified as varnas. Such classification could be effected in the case of the free men (nrs) from their bearings and they could be given the advantages that the different classes claimed for themselves.

The inner mind is indicated by such variations as those of aspect, gait, gesture, speech and by changes in the eye and the face. (8-26) It was the individual who was being assessed for his honesty and for his plight. It may be noted that Varna classification and hierarchy would not be given undue importance while examining the parties and their witnesses. Every individual would be heard with equal regard as another whether he had been assigned to a particular class or not. Manusmrti was still on the anvil when the first steps to effect varna classification were taken.