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Administration of Justice and Legal System in Ancient India

India has one of the oldest judiciaries in the world. British colonial versions generally

described the legal system of ancient India ‘as an apparatus of cruel absurdities.’ Henry

Maine had made the following remark about what he called ‘the oriental habits of life’ of the

Indians before the British turned up in India: "It (British rule in India) is a record of

experiments made by foreign rulers to govern alien races in a strange land, to adapt European

institutions to Oriental habits of life, and to make definite laws supreme amongst peoples

who had always associated government with arbitrary and uncontrolled authority." Alan

Gledhill, a retired member of the British-Indian Civil Service, wrote that when the British

seized power in India, "there was a dearth of legal principles." For Bernard Cohn, the ancient

constitution rendered Indian history as antique, static and theocratic. - However, these

statements are partially true. The colonial administrators were ignorant, and were fogged with

imperialist self-interests. The British colonialists shared a common contempt for Indian

culture and civilization which was a part of their imperialist zeal which dominated British

Jurists, historians, and thinkers in the heyday of British imperialism.

PART I:

Let us have a factual tour of the Judicial System in Ancient India, as corroborated through

textual and archaeological evidence.

The concept of Dharma that ruled the growth of classical Hindu Law since the Vedic period

up to the development of the commentaries and digests till the 18 th century. The word

Dharma is derived from dhr to mean to uphold, sustain or nourish. The ancient Indian jurists

often used it in close association with rta and satya. The Taittiriya Upanishad uses rta with

satya and dharma and exhorts Satyam vadha: Dharmam chara i.e. ‘Speak the truth and

translate it into action’. Thus, dharma is the Divine Law, all the layers of the administrative
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hierarchy of ancient Indian judicial administration was bound by it, at least in theory.

Mahabharata and Kautilya’s ArthaShastra upheld dharma as righteous action and asserts:

Dharmo Eva Hato Hanti, Dharmo Rakshati Rakshitah i.e. righteous action protects those

who uphold or protect righteous action. Manusmriti prescribes ten essential rules for the

observance of Dharma and there are dhriti i.e. patience, kshama i.e. forgiveness, dama i.e.

piety, asteya i.e. honesty, shauch i.e. sanctity, indraiya-nigrah i.e. control of senses, dhi i.e.

reason, vidya i.e. knowledge, satya i.e. truthfulness and akrodha i.e. absence of anger. Hence,

different authoritative ancient Indian texts clearly upheld dharma as divine law being

universal in nature and governing not only the individual but all in society.

Dharma as divine law is also an unique blend of rigidity and flexibility as it protects eternal

principles and accepts continued valid traditions to study the sources of Hindu Law. Vedas

also known as shrutis stands for universal, eternal, and fundamental principles and Smritis

stands for a group of values derived from those principles and finding their expression in the

Dharmashastras authored by different jurists.

The Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice

Pradvivaka at the top. Though the rule of law was based on inequality of Varnashrama, in

criminal trials, the accused could not be punished unless his guilt was proved according to

Mahabharata and Arthashatra; that in civil cases the trial consisted of plaint, reply, hearing

and decree; following the doctrines nyaya according to Manavadharmashastra. All trials,

civil or criminal, were heard by a bench of several judges and the decrees of all Courts except

the King were subject to appeal or review according to fixed principles. Mahabharata laid

down that "A King who after having sworn that he shall protect his subjects fails to protect

them should be executed like a mad dog." Arthashastra states that "The people should execute

a king who does not protect them, but deprives them of their property and assets and who

takes no advice or guidance from anyone. Such a king is not a king but misfortune." Kautilya
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and Manu both described the duties of a king as: "In the happiness of his subjects lies the

King’s happiness; in their welfare his welfare; whatever pleases him he shall not consider as

good, but whether pleases his people he shall consider as good."

Divine law as the sacred law i.e. Dharma, evidence i.e. Vyavahára, historical tradition i.e.

Charitra, and edicts of kings i.e. Rájasásana are the four legs of Law, of these four in order:

the latter is superior to the previously mentioned. Vyavahára i.e. evidence, is in witnesses;

Charitra i.e. history, is to be found in the tradition of the people known as sangraha, of the

people; and the order of kings is what is called sásana i.e. legislations as promulgated. These

principles of were administered by Court, in Sangrahana i.e. centre for 10 villages, Karvatik

i.e. for 200 Villages, Dronamukha i.e. for 400 villages, and Stháníya i.e. for 800 villages, and

at places where districts meet, three members acquainted with sacred Law called

dharmasthas and three ministers of the King called amátyas shall carry on the administration

of Justice. This arrangement of judiciary suggests that there were sufficient number of Courts

at different levels of administration, and for districts, there were Circuit Courts called

Janapadasandhishu.

In villages, the local village councils or Kulani, similar to modern panchayat, consisted of a

board of five or more members to dispense justice to villagers. It was concerned with all

matters relating to endowments, irrigations, cultivable land, punishment of crime, etc. village

councils dealt with simple civil and criminal cases. At a higher level in towns and districts the

Courts were presided over by the government officer under the authority of the King to

administer the justice. The link between the village assembly in the local and the official

administration was the head man of the village. In each village, local head man was holding

hereditary office and was required to maintain order and administer justice, he was also a

member of village council he acted both as the leader of the village and mediator with the

government.
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In order to deal with the disputes amongst members of various sreni i.e. guilds or association

of traders or artisans, various corporations were authorized to exercise an effective

jurisdiction over their members in regards to trade bills, tariff disputes. These tribunals

consisting of a president and three or five coadjutors were allowed to decide their civil cases

regularly just like other Courts.

Due to the prevailing institution of joint family system Family Courts were also established

called puga which were assemblies made up of groups of families in the same village to

decide civil disputes amongst the family members.

According to Brihaspati Smriti, there was a hierarchy of Courts which began with the family

courts and ended with the King, in Ancient India. The lowest was the family arbitrator. The

next higher Court was that of the judge; the next of the Chief Justice who was called

Pradivivaka, and Adhyaksha; and at the top was the King’s Court. The jurisdiction of each

was determined by the importance of the dispute, the minor disputes being decided by the

lowest Court and the most important by the king. The decision of each higher Court

superseded that of the Court below. According to Vachaspati Misra, a medieval Indian jurist

and commentator, "The binding effect of the decisions of these tribunals, ending with that of

the king, is in the ascending order, and each following decision shall prevail against the

preceding one because of the higher degree of learning and knowledge".

Manu mentions following grounds on which litigation may be instituted and they are (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
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women; (16) law concerning husband and wife; (17) partition of inheritance; and (18)

gambling and betting.

Duties and manners to be observed by the king in administration of justice were very clearly

laid down in the Dharmashastras. Manu cautions King by saying, “Justice, being violated,

destroys; justice, being preserved, preserves: therefore, justice must not be violated, least

violated justice destroys us”. Further he opines ‘the only friend of men even after death is

justice; for everything else is lost at the same time when the body (perishes)’. If the judicial

system fails to dispense justice Manu says that, one quarter of (the guilt of) an unjust

(decision) falls on him who committed (the crime), one quarter on the (false) witness, and

one quarter on all the judges, one quarter on the king.

As the duty of a king consists in protecting his subjects by dispensing justice its observance

leads him to heaven. He who does not protect his people or upsets the social order wields his

royal scepter i.e. rajadanda in vain. It is power i.e. danda and power 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, says Manu. The king who administers justice

in accordance with varnashrama and dharma and properly inflicts punishment prospers with

respect to those three means of happiness; but if he is partial, and deceitful he will be

destroyed. 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.”

PART II
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It is found that the jury system existed in Manu’s period and Manu recommended the king to

give the power of judicial administration to Brahmins in his absence. Jurors or councilors

were called sabhasada who acted as assessors or advisers of the King. Yajanvalkya enjoins:

"The Sovereign should appoint as assessors of his Court persons who are well versed in the

literature of the law, truthful, and by temperament capable of complete impartiality between

friend and foe." – These assessors or jurors were required to express their opinion without

fear, even to the point of disagreeing with the Sovereign and warning him that his own

opinion was contrary to law and equity. Katyayana says: “The assessors should not look on

when they perceive the Sovereign inclined to decide a dispute in violation of the law; if they

keep silent, they will go to hell accompanied by the King.” The same injunction is repeated in

an identical verse in Shukr-nitisara. The Sovereign or the presiding judge in his absence –

was not expected to overrule the verdict of the jurors; on the contrary he was to pass a decree

called Jayapatra in accordance with their advice. Shukranitisara says: "The King after

observing that the assessors have given their verdict should award the successful party a

Jayapatra." Their status may be compared to the Judicial Committee of the Privy Council

which "humbly advises'' their Sovereign, but their advice is binding. It may also be compared

to the peoples’ assessors under the Soviet judicial system who sits with the professional judge

in the People’s Court but are equal in status to him and can overrule him. However, if the

decision of the Sabhyas (Judge) were fined and removed from the post, banished their

property was also forfeited. They were compelled to make good the loss. If the decision of

Sabhyas is promoted by greed, fear, friendship, etc each one was fined twice.

Judicial Psychology: Manusmriti has specified the part of the judge’s function to probe the

heart of the accused and the witness by studying their posture, mind and changes in voice and

eyes. Chapter VIII, 25 (Para) - By external Signs let him discover the internal disposition of

men, by their voice, their colour, their motions, their aspect, their eyes, and their gestures. 26
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(Para) - The internal (working of the) mind is perceived through the aspect, the motions, the

gait, the gestures, the speech, and the changes in the eye and of the face. This is unique; it is

the only ancient legal text which is the first code of law to take account of judicial

psychology. It is further held that his flattering voice, licking the corner of his lips, speaking

incoherently, loss of colour of his face and frequent coughing indicate the probability of his

untruthfulness in the eyes of the Mitakshara of the Yajanvalkya Smriti.

Law Relating to Witnesses: In ancient India, 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.

Qualifications for witness, he should be a man of good character, trustworthy, knows Dharma

and acts up to it. Witness from the same caste is to be prepared, and in cases relating to

women a woman can be witness. As regards the nature of incompetent witnesses, it may be

said that the persons having no faith in the Dharma, the persons who are very old persons,

minors, oil presser, intoxicated person, lunatic, distressed, inattentive, undertaking long

journeys, gambler etc.

Narada further gives us five-fold classification of incompetent witnesses,

1. the learned Brahamanas, and ascetics practising austerities.

2. Thieves, robbers, gamblers

3. witnesses are to be rejected on the ground of contradiction in their evidence,

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4. one who comes of his own accord for leading an evidence is also treated as

incompetent,

- When a person dies, he names some persons as witnesses for the transaction, they can

come as witnesses and the person who is informed by the parties in a general way and

not in a specific way is not to be admitted as a witness. Ordinarily the witnesses are to

be examined in the presence of the parties and never behind their back. Further, a

witness should be examined by his tone, change of colour, eyes gestures etc

The judge should address a Brahmana witness by ‘speak and swear by veracity’. He should

address the Ksatriya witness as to speak the truth and he should swear by the animal he rides

and his weapon. A Vasisya should swear by kine, gold, and grian and a Sudra should swear

by all grave sins. The view of majority witnesses shall be prepared, in case where there is no

majority opinion is possible, and then the quality of statement made by the witnesses is to be

taken into consideration. The claim is not said to be established when witnesses depose more

or less than that mentioned in the statement or pliant of the plaintiff and the disposition has

not taken place at all and in such a case no fine is to be imposed. When there is conflict

among the witnesses as regards time, place, property, amount, then the dispositions are as

good as not taken place. Generally, no ordeals (divyas) are to be resorted to when the

witnesses are available. The oaths are to be employed in the disputes of small value and the

ordeals are to be resorted to in serious disputes of crimes.

Punishment for false witnesses, (a) where a witness denies deposing in the Court matter, after

giving promise to that effect along with other witnesses, (b) if for unfavourable

circumstances, a witness denies to depose, (c) if a witness gives false evidence frequently, in

all these cases witness shall be punished with fine and in last case physical punishment can

also be imposed on such witness.

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Classification of Vivada (disputes): Apart from 18 subject matters of legal proceedings (as

classified by Manu), distinction has been made between Artha-Vivada (civil dispute) and

Himsra samudbhava Vivada (criminal disputes), amongst criminal dispute there are 4 sub

division (i) Danda Parusya (assault and battery) (ii) Vak- Parusya (Defamation) (iii) Sahasa

(Murder and other violation) and (iv) Strisangrahana (adultery). A cause of action arises

when a person, being harassed in a way contrary to the rules of Smriti and usage, lodges a

complaint. The judicial proceedings usually comprise four parts, namely complaint, reply,

evidence and judgment. Replies can probably be of four kinds, and these are admission,

denial, a special plea, relating to a former judgment. Three types of evidence are mentioned

namely document, possession and witness. As regards the rules for summoning, it is evident

that the opponent or the defendant, against whom the suit is filed, must be summoned to the

Court. (2) Even other persons connected with the defendant (in the suit) may also be

summoned. (3) When, however, some persons like soldiers, Agriculturists, cowherds etc. are

fully occupied with their work, their representative may be allowed to appear before the

Court, as held by the Narada Smriti. (4) In serious matters, however, the persons are allowed

to appear in person before the Court, particularly with proper safeguards (5) in more serious

matters like Murder of Woman, Adultery with her, as held by the Mitakashara on the

Yajanvalkay Smriti no representative is allowed. But in such matters, the concerned must

appear before the Court (6) it should be noted that the presence of some persons like the

deceased, very old (more than Seventy years old), persons in calamities, engaged in religious

rites, in king’s duties, a woman whose family is in bad condition, is actually condoned. (7) If,

however after serving the summons defendant fails to come before the Court the King should

wait for 30 days or 15 days and pass the Judgment in favour of the plaintiff. (8) But if there is

an invasion by enemy or famine, or epidemic, then the King should not find the defendant
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who is thus prevented from coming to the Court (9) However agents can be allowed to

represent on behalf of his disabled Master.

Representation by lawyer: the question also arises whether in ancient India, the system of

lawyers is allowed or not. The views of Narada, Katyayana and Brhaspati show that the

skilled help was required in the litigations. The commentary of Asahaya on the Narada Smrti

indicates that those who are well- versed in the Smriti literature could afford help for

monetary consideration to the parties that have appeared before the Court. Fees of such

skilled persons were also fixed and he was appointed by parties not by Court.

Interpretation of Legal Documents: Arthashastra and Manu Smriti are considered as

significant treatises as far as the legal system is concerned. In ancient Indian societies, an

independent school of legal practices existed. Some general principles in connection with the

judicial proceedings state that in case of disagreement between two texts of Smriti, justice

according to usage is to be followed. In case of conflict between a text of Smriti associated

with the dharma and one relating to artha, the former prevails. The former one sets rules

regarding things unnoticed or otherworldly, while the latter one is more concerned with

everyday matters.

Judges were required to decide cases, criminal and civil, according to law: “samyak, yath-

shastram, shastro ditena vidhina”. This involved interpretation of the written text of the law-

a task which created many problems such as the elucidation of obscure words and phrases in

the text, reconciliation of conflicting provisions in the same law, solution of conflict between

the letter of the law and principles of equity, justice and good conscience, adjustment of

custom and smritis, and so on. This branch of law was highly developed and a number of

principles were enunciated for the guidance of the Courts. The most important of them

related to the conflict between the dharmashastra and the arthashastra.

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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 is not always so.

In fact so remarkably secular is the arth-shastra in its approach to the problems of

government that this has induced some writers to advance the theory that the artha-shastra

(literal meaning: the science of ‘artha’ or pursuit of material welfare), did not evolve from the

dharma-shastra but had an independent origin and developed parallel to it.

Legal system in ancient India also includes adverse possession and different modes of

acquisition. Adverse possession grants right to the possessor if the owner who, even while

seeing his property adversely possessed, does not raise any objection. A permanent property

vests in the person adversely possessing it for 12 years without any objection from the owner.

In case of movables, the period is ten years. The suitable modes of attainment of a property

are purchase, gift etc. Generally, acquisition, by a valid mode, is stronger proof than

possession. Acquisition, without even slight possession, is not valid. A mortgage vests in the

mortgagee if it is not redeemed even after the principal amount is doubled. A mortgage, with

a time-limit, lapses after the expiry of that time.

PART III

Kautilya in Arthashastra has detailed the notion of Raja Mandala or Circle of States and

Shadguna or six-fold diplomatic policy, which can amazingly encompass every aspect of

modern foreign policy.

Rajamandala {Circle of States}

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The Rajamandala theory consists of four principal types of states viz. Vijigishu (desirous for

or would be world conqueror), Ari (enemy, whose territory if contiguous to Vijigishu),

Madhyama (Middle king with territory adjoining those of Vijigishu and Ari and stronger than

both) and Udasina (kingdom lying outside or neutral and more powerful than that of

Vijigishu, Ari, and Madhyama). Each of them has an ally and ally’s ally thus making 12

kings and 60 types of combinations called material constituents (for example, enemy’s

enemy, mitra’s enemy, enemy’s mitra, mitra’s mitra and so on). This together combines into

the total 72 elements of Raja Mandala.

This scheme is based on the assumption that two neighbouring states which share their

borders are hostile to each other; and the enemy of a hostile neighbour is a natural ally. The

Vijigishu is located at the centre of this circle.

Shadguna Sidhanta {Six-Fold Diplomatic Policy}

This doctrine is a six-fold foreign policy for attainment of one’s national interests and goals

based on realpolitik. Kautilya had suggested this recipe for a Vijigishu to realise his dream to

become world conqueror. The six principles are Sandhi, Vigraha, Asana, Yana, Sansraya and

Dvaidhibhava. A very brief explanation of these is as follows:

Sandhi

Sandhi (making peace with strong enemy) has been advised for a weaker nation with strong

enemy. When you enemy is stronger than you, don’t confront with him and rather make

peace on terms and conditions of your enemy {i.e. surrender troops, treasury or territory}.

Sandhi will thwart the strong enemy and will give enough time to get strong enough to

overthrow the strong enemy. Thus, this policy is based on “opportunism” and seeks time to

become strong and wait for enemy to get weaker.

Vigraha
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Vigraha (policy of hostility) has been advised for stronger nations with relatively weaker

enemies. There can be two dimensions of policy of hostility viz. Defensive and Offensive.

Kautilya says that the policy of Vigraha is advisable only when you are sure that you should

either repel attack of enemy or are strong enough to ruin the enemy or seize his territories (in

such case go ahead with Yana).

In this policy, Kautilya has hinted at some kind of cost-benefit analysis and says that if cost

appears more than benefit, then Sandhi is preferred over Vigraha.

Asana

The Asana is basically a stance of keeping quiet. It is to wait for the enemy to get weaker

either by plunging itself in some difficulties or getting involved in war at some other front.

Asana also includes secret efforts to weaken the enemy or some kind of proxy war in modern

terms.

Yana

Yana {March or Expedition} is a direct manifestation of a policy of Vigraha and is to be

followed when you are sure that you shall ruin the enemy and win over him.

Samasraya

Samasraya means seeking shelter with another king. If a king is weak and threatened to be

attacked by a powerful enemy, it’s better to seek protection from another King or another

place / fort etc. This policy corresponds to the status of Protégé in the modern sense.

Dvaidhibhava

Dvaidhibhava refers to the double policy of Sandhi with one king and Vigraha with another

at a time. It is suggested for a King who is strong enough to fight but may not win without

getting additional strength of an ally.

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Apart from the above Shadgunas, Kautilya has mentioned four tactics to overcome the

opposition viz. Saman (Conciliation), Dama (Gifts), Bheda (Dissension) and Danda (Force).

Relevance of Rajamandala and Shadguna Siddhanta

In Arthashastra, Kautilya has made arguments about power, governance, statecraft etc.

without any reference to any religion or divinity, which makes him eligible as the true

founder of what we call realpolitik. However, the above description makes it very clear that

Kautilya suggests a state to act in order to enhance its power and self-interest. There does not

seem to be any moral / ethical or religious obligation in his policy. War and peace are solely

on the basis of profit. Many criticize this policy of Kautilya as ruthless realpolitik, intrigue,

deceptive and immoral. Despite criticism, the policy holds relevance because Kautilya said

something which has always been actually practiced by states everywhere.

At the same time, when discussing about India’s foreign policy, many observers connect the

ancient Indian strategic thought of Kautilya with contemporary Indian strategy, whereby

foreign policy takes place within three widening concentrics, with the first circle

encompassing India’s immediate neighbourhood region, the second its extended

neighbourhood; and the third the entire global stage. Many observers consider such principles

to be both applicable to, and evident in, the conduct of Indian foreign policy since 1947.