KAUTILYA’S ARTHASHASTRA AND THE LAW 1

Kautilya’s ​Arthashastra​ and the Law

Preethi Sundararajan
BBA LLB (Hons.), National Law University, Jodhpur
Student, MA (Public Policy & Governance), Azim Premji University
KAUTILYA’S ARTHASHASTRA AND THE LAW 2

Abstract

Kautilya (alternatively known as Chanakya or Vishnugupta) is a name familiar to us as a

statesman, advisor and author of ​Arthashastra​. A lot has been written about him and his work,
and through this paper I analyse the instances in which Kautilya and his ​Arthashastra has been
invoked by the Indian judiciary and law/constitution-making bodies. I trace the trajectory of the
reliance placed on Kautilya and his ​Arthashastra by judges over the years to understand the
impact of ancient texts and history in evolving legal jurisprudence in India. Other than the
case-laws written over the years, I also explore invocations of Kautilya during the debates in our
Constituent Assembly Debates. Through my research, we can see that the ​Arthashastra is often
invoked in certain types of cases and to understand the practices and/or customs of ancient India.
Over time, we also see that increasing reference is made to Kautilya and his ​Arthashastra and in
ways that reflect a deeper understanding of the essence of the ancient text. This exploration is
intriguing because it looks at the overlap of two distinct fields of study and how one has helped
the other evolve.

Keywords: Kautilya, legal jurisprudence, ancient Indian texts, Indian history, law,
Arthashastra
KAUTILYA’S ARTHASHASTRA AND THE LAW 3

Kautilya’s Arthashastra and the Law

The ​Arthashastra​ is a text that has held the interest of a cross-section of people for decades
now. In this essay, I look at when, how and in what manner the judiciary has relied on or referred
to the ​Arthashastra​ over the years to interpret laws. The aim is to understand the impact that the
Arthashastra​ has had on laws, and interpretation thereof, in India. Hence, I propose to do this not
only by analysing the judgments pronounced by various Courts within India but also looking at
the Constituent Assembly Debates​1​. For the purposes of this essay, I look at three broad periods -
the pre-independence era, the constitution-making process, and the post-independence era. I look
at the pre-independence era and constitution-making process to put in context the references to
the ​Arthashastra​ in the contemporary era which is the main focus of this essay. I begin by
looking at the spread of the cases over the years, and then proceed chronologically to trace the
evolution of reliance on the intermingling of legal jurisprudence with the ​Arthashastra,​ and then
conclude by summing up the course set by courts in this arena.

The Timeline: Invocation of the ​Arthashastra​ in judgments/case laws of different Courts

The graph below is taken from ​Manupatra​2​, and shows the frequency of usage of the word
‘​Arthashastra​’ and/or ‘Kautilya’ in judgments of different Courts over different time periods. An
interesting fact to note here is that though there are ample references to Kautilya or Koutilya
from as early as 1913 to as late as 2019, there are only two references to ‘Chanakya’ (along with
Kautilya, and none in isolation). Also, barring a brief lull in the 1920s-1940s, the invocation of
Kautilya’s ​Arthashastra​ appears to be on an upward trajectory as evinced from the graph below.

1
“​Arthashastra​” and/or “Kautilya” and/or “Chanakya” were the keywords used to search the
database. https://www.constitutionofindia.net/constitution_assembly_debates
2
Manupatra is an Indian Legal database. “​Arthashastra​” and/or “Kautilya” and/or “Chanakya”
were the keywords used to search the database for judgments pronounced by the Supreme Court
and the High Courts. https://www.manupatrafast.com/
KAUTILYA’S ARTHASHASTRA AND THE LAW 4

The ​Arthashastra​ and the Judiciary of the Pre-Independence Era

A total of three cases from the pre-independence era refer to ​Arthashastra​. As the number is
low, I look at all three cases. The case of ​Hiralal Singha v. Tripura Charan Ray​ (1913 [17] CLJ
438) before the Calcutta High Court appears to be the first recorded case available that mentions
the ​Arthashastra​ /Kautilya. This is one of two cases that mention both Kautilya and
Arthashastra​. It is also the only judgment to refer to the ‘Vatsyayan Sutra’ and place substantial
reliance on both these ancient texts to determine whether property could be inherited from a
widow who had turned to prostitution.

The judgment in the ​Seshachala Chetty and Ors. v. Para Chinnasami and Ors.​ ([1917] ILR
40 Mad 410) case of 1916 was pronounced by a three-judge bench of the Madras High Court. Of
the Bench consisting of only one Indian judge, the British Chief Justice’s written judgment was
the sole judgment drawing upon the ​Arthashastra​ to trace ownership of unoccupied lands, which
was one of the issues framed in this case. The judgment mentioned the ‘​Arthashastra​ of
Kautilya’ as having been published recently and dates it to 300 B.C. The judge relied on the
Arthashastra​ to reinforce the right of the State to provide uncultivated land to cultivators to
realise its true revenue potential, as a practise recognised and supposedly followed in India. He
refers to ‘Bk. 2, C. 1’ which stipulates, ​inter alia, t​ hat land may be confiscated from those who
KAUTILYA’S ARTHASHASTRA AND THE LAW 5

do not cultivate it, and that lands prepared for cultivation may be given only for life, and that
unprepared lands may not be taken away from those who are preparing them for cultivation
(Shamasastry, 1915).

The third judgment (​Muthukrishna Naicken v. Ramachandra Naicken and Ors. [​ 1919] 37
MLJ 489) is also of the Madras High Court and was pronounced by a two-judge bench in 1918.
In this matter pertaining to property law, the Judge terms the second ​adhyaya3​ ​ of the fifth
adhikarana​4​ as Chanakya’s ‘Machiavellian’ and ‘disingenuous’ advice. He relies on the same to
make a case that even in ancient sovereigns, revenues from temples were used on occasion for
general administration of the land. This is substantiated by the sutras which empower the King or
the Superintendent of Religious Institutions (acting on behalf of the King) to accept properties
(Shamasastry, 1915). The Judge refers to the ​Arthashastra​ and then the practices of the East
India Company to frame the action as a continued practise/custom.

The ​Arthashastra​ and the Constituent Assembly Debates

I continue to trace the trajectory with a search of the Constituent Assembly debates as this
gives us insight into the thinking of the framers of our Constitution, which is the supreme law of
the land. Interesting observations from the search are as follows:
● That nowhere is the term Chanakya used; references are made only to Kautilya and
Arthashastra​ by the members of the Constituent Assembly.
● Reliance is placed by Shri Seth Govind Das on ​Kautilya’s Arthashastra ​to substantiate
his claim that India is a ‘very ancient country’ where villages held a very important place.
He states that there are references to villages in the ​Arthashastra​, and that modern
historians also admit its truth.​5​ Making a point that the Constitution must be in Hindi and
not English, Shri Algu Rai Shastri said that we have ‘inherited our language from our

3
Chapters contained in the ​Arthashastra
4
Books or topics of heads in the ​Arthashastra​. The ​Arthashastra​ is split into different books.
Under each book there are multiple chapters, and each chapter has multiple
sections/topics/heads.
5
​Constituent Assembly Debates of 22nd November 1948, Volume 7, Document No.57,
Paragraph No. 167. ​https://www.constitutionofindia.net/constitution_ assembly_debates/volume/
7/1948-11-22
KAUTILYA’S ARTHASHASTRA AND THE LAW 6

ancient sages and from Kautilya’s ​Arthashastra​’6​​ . Though the first reference is
technically true and the second is a case of overreaching, these two references show how
the ​Arthashastra​ was used as validation by members to further their own opinion on a
particular issue.
● In a bid to convince his peers that the ‘republican tradition’ was not alien to India, Shri
S.Radhakrishnan states that Megasthenes and Kautilya refer to the Republics of ancient
India​7
● Shri Kamlapati Tiwari draws a comparison between the Constitution of India and the
Arthashastra​ by terming the work of the Constituent Assembly the second
constitution-making process, with the first having happened 2500 years back. This
‘Kautilyan Constitution’ has apparently remained a ‘brand product of the Indian mind
over all these centuries’.​8

The Arthashastra​ and the Judiciary of the Post-Independence Era

As there have been multiple judgments post 1947, I shall be focusing on a few judgments
pronounced between 2010 to 2019 as being reflective of the contemporary take of the Judiciary
on the ​Arthashastra.​

The 2019 matter of ​Vijay Namdeorao Wadettiwar & Ors. v. The State of Maharashtra &
Ors.​9​ p​ ertains to anti-defection law and involves interpretation of constitutional provisions. This
judgment refers to Chapter IX of the ​Arthashastra​ to understand the ‘background history of India
and its Constitution’, and specifically the qualities that a minister must ideally possess. We see
here a continuation of the parallel drawn between the ​Arthashastra​ and the Constitution which

6
​Constituent Assembly Debates o​ f ​4th November 1948​, Volume 7, Document No.48, Paragraph
No. 161. ​https://www.constitutionofindia.net/constitution_ assembly_debates/ volume/7/1948-
11-04
7
​Constituent Assembly Debates of 20th January 1947, Volume 2, Document No.12, Paragraph
Nos. 27 and 28. ​https://www.constitutionofindia.net/constitution_ assembly_debates/volume/
2/1947-01-20
8
​Constituent Assembly Debates of 23rd November 1949, Volume 11, Document No.163,
Paragraph No. 173. ​https://www.constitutionofindia.net/constitution_ assembly_debates/
volume/11/1949-11-23
9
2019 (6) ABR 205 - Two-judge bench of the Bombay High Court
KAUTILYA’S ARTHASHASTRA AND THE LAW 7

was observed in the Assembly debates. Further, the judgment calls Kautilya an ‘exponent of the
art of government’ and states that it was compiled (not written) between 321-296 BC.​10

​ ​m
The case of ​Riyaz Ahmad Bhat v. State of J&K and Ors.11 ​ akes a passing reference to
Arthashastra​ while stating that the rule of law has included principles of natural justice from the
‘legendary days of Adam and of Kautilya's ​Arthashastra’​. The similarity between Adam and
Kautilya and their relevance to a property dispute in a country suffering from multiplicity of laws
governing property matters is puzzling. A potential justification for this is found in other
judgments​12​ which specify that the Adam-Kautilya reference is being invoked to indicate that
natural justice is a venerable, established, noble concept and not a new-fangled, passing fad.
Another slew of judgments​13​ proceed a step further and state (while reiterating all of the above)
that reliance must not be placed only on legend and history, but current legislation must evolve
to sustain these principles.

​ is about a writ petition filed to stop the

The case of ​Alim v. State of Uttarakhand & Ors.14​
illegal slaughtering of cows on streets. While issuing directions prohibiting slaughter of cows,
the Court placed reliance on the ​Arthashastra​ (and the ​Isha Upanishad​ and the Vedas) to
emphasise the importance of cows. Another case​15​ on the same issue makes an argument that the
Arthashastra​ (along with vedic texts) raises cows to the level of divinity by virtue of the fact that
it has a Superintendent of Cows (and an entire ​adhyaya​ dedicated to it). However, the veracity of
this assertion is questionable on a reading of the ​Arthashastra.​

Other passing references to ​Arthashastra​ were made in matters of the ubiquity of

corruption​16​, inheritance rights of women, and the culture of bribery.

Conclusion

10
Also finds mention in ​Manoj Narula v. Union of India (UOI)​ 2014 (8) SCJ 425
11
MANU/JK/0085/2018 - Single judge bench of the Jammu & Kashmir High Court
12
​Pruthweeraj Patnaik v. State of Odisha and Ors 2​ 018 (II) ILR-CUT 71; ​Maneka Gandhi v.
UOI ​AIR 1978 SC 597; ​Avinash v. Ganpat and Ors.​ MANU/MH/0250/2014
13
Committee of Management, Islamiya Inter College v. State of U.P. and Ors. 2​ 017 2 AWC
1534 All - High Court of Allahabad at Lucknow; ​Tarsem Singh v. State of Jharkhand and Ors.
2016 (4) AJR 242 - High Court of Jharkhand at Ranchi
14
MANU/UC/0567/2018 - Two judge bench of the High Court of Uttarakhand at Nainital
15
​Ramesh Sharma v. State of Himachal Pradesh​ MANU/HP/0934/2014
16
Neera Yadav v. Central Bureau of Investigation ​AIR 2017 SC 3791 - Two judge bench of the
Supreme Court
KAUTILYA’S ARTHASHASTRA AND THE LAW 8

The ​Arthashastra​ is the only ancient text that most of the judgments referring to the
Arthashastra​ rely on, and they all seem to accept it as the authoritative account of
conditions/life/practices in ancient India. In the pre-independence era, the ​Arthashastra​ appears
to be used as a tool to build a version of history wherein large phases of Indian history are
glossed over and the ​Arthashastra​ is seemingly the sole representative of ancient India. In the
Constituent Assembly Debates, we see reliance being placed on the Arthashastra to trace India’s
rich and ancient history. Jumping to contemporary times, we see that the judges have a slightly
more historically accurate understanding of the ​Arthashastra,​ notwithstanding the equal footing
that Adam and Kautilya are put on. Further, the judges do not rely solely on the ​Arthashastra​ but
also refer to other ancient texts and sources to understand the issue at hand. Also, there is
reference to the gist of the ​Arthashastra​ ’s take on a specific ​prakaran17
​ ​ instead of a meticulous
reference to the book, chapter, and ‘section’ of the text as was observed in the earlier cases. The
Courts also appear to be relying on the ​Arthashastra​ to develop legal jurisprudence shaped by
our unique history, and not solely to drive an agenda. At the same time, we also see the
Arthashastra​ being invoked (along with other texts) for deeply politicised issues such as
slaughtering of cows. That said, the Courts do attempt to perform a balancing act and not show
bias. To conclude, it may be said that the trend indicates that inferences are being increasingly
drawn from Kautilya’s ​Arthashastra​ by the Courts in their efforts to interpret statutes, and that
despite the passage of time, it shall continue to stay relevant and help Indian legal jurisprudence
evolve.

References

Shamasastry, R (1915). ​Kautilya’s Arthashastra .​ ​http://www.columbia. edu/itc/mealac

/pritchett/
​ 00litlinks/kautilya/index.html
Kautilya (2000), ​The Arthashastra ​, (L.N.Rangarajan), Penguin Classics
The Constitution Assembly Debates.
https://www.constitutionofindia.net/constitution_ assembly_debates
The Constitution of India, 1950
C. J. Fuller (1988), Hinduism and Scriptural Authority in Modern Indian Law, ​Comparative
17
A paragraph or section in the Arthashastra
KAUTILYA’S ARTHASHASTRA AND THE LAW 9

Studies in Society and History,​ 30(2), 225-248.

Marc Galanter (1968). The Displacement of Traditional Law in Modern India, ​Journal of Social
Issues,​ 24(4), 65-91.
Marc Galanter (1972), The Aborted Restoration of 'Indigenous' Law in India, ​Comparative
Studies in Society and History,​ 14(1), 53-70.