The Indian Judicial System
A Historical Survey
By Mr. Justice S. S. Dhavan (1960)
High Court, Allahabad
Part A: Judicial System in Ancient India
India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree. But before describing the judicial system of ancient India I must utter a warning. The reader must reject the colossal misrepresentation of I ndian Jurisprudence and the legal system of ancient India by certain British writers. I shall give a few specimens. Henry Mayne described the legal system of ancient India “as an apparatus of cruel absurdities”. An Anglo-Indian jurist 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 bad always associated government with arbitrary and uncontrolled authority.”1 (italicized by me).
Alan Gledhill, a retired member of the Indian Civil Service, wrote that when the British seized power in India, “there was a dearth of legal principles.” 2 These statements are untrue. It is not for me to guess why they were made. They may be due to sheer ignorance, or imperialist self-interest, or contempt for Indian culture and civilization which was a part of the imperialist outlook which dominated British Jurists, historians, and thinkers in the heyday of imperialism. But the effect of this misrepresentation, which has few parallels in history, was to create a false picture of the Indian judicial system both in India and outside.
We must go the original texts to get a true and correct picture of the legal system of ancient India. The
reader will discover from them that Indian jurisprudence was found on the rule of law; that the King himself was subject to the law; that arbitrary power was unknown to Indian political theory and jurisprudence and the kind’s right to govern was subject to the fulfillment of duties the breach of which resulted in forfeiture of kingship; that the judges were independent and subject only to the law; that ancient India had the highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today ; that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with the power to review the decision of the Courts below ; that disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial process in the modern State today: that the rules of procedure and evidence were similar to those followed today ; that supernatural modes of proof like the ordeal were discourage ; that in criminal trials the accused could not be punished unless his guilt was proved according to law ; that in civil cases the trial consisted of four stages like any modern trial – plaint, reply, hearing and decree ; that such doctrines as res ju dicata (prang nyaya) were familiar to Indian jurisprudence ; that all trials, civil or criminal, we re heard by a bench of several judges and rarely by a judge sitting singly ; that the decrees of all courts except the King were subject to appeal or review according to fixed principles ; that the fundamental duty of the Court was to do justice “without favour or fear”.
Rule of law in Ancient India
Was there a rule of law in ancient India? Let the texts speak for themselves.
In the Mahabharata, it was laid down ” A King who after having sworn that he shall protect his subjects fails to protect them should be executed like a mad dog.” 3 “The people should execute a king who does not protec t them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune.” 4 These provisions indicate that sovereignty was based on an implied social compact and if the King violated the traditional pact, he forfeited his kingship.
Coming to the historical times of Mauryan Empire, Kautilya describes the duties of a king in the Arthshastra thus : “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 to good.” 5
The Principle enunciated by Kautilya was based on a very ancient tradition which was already established in the age of the Ramayana. Rama, the King of Ayodhya, was compelled to banish his queen, whom he loved and in whose chastity he had comlete faith, simply because his subjects disapproved of his having taken back a wife who had spent a year in the house of her abductor. The king submitted to the will of people thopugh it broke his heart.
In the Mahabharata it is related that a common fisherman refused to give his daughter in marriage to the King of Hastinapur unless he accepted the condition that his daughter’s sons and not the heirapparent from a former queen would succeed to the throne. The renunciation of the throne and the vow of life-long celibacy (Bhishma Pratgyan) by Prince Deva Vr ata is one of the most moving episodes in the Mahabharata.6 But its signifiance for jurists is that even the sovereign was not above the law. The great King of Hastinapur could not compel the humblest of his subjects to give his daughter in marriage to him without accepting his terms. It refutes the view that the kings in ancient India were “Oriental despots” who could do what they liked regardless of the law or the rights of their subjects.
Judiciary in Ancient India
With this introductory warning, I shall endeavour to describe the judicial system of ancient India. According to the Arthashastra of Kautilya, who is generally recognised as the Prime Minister of the first Maurya Emperor (322-298 B.C.), the realm was divided into administrative units called Sthaniya, Dronamukha, Khrvatika and Sangraha na (the ancient equivalents of the modern districts, tehsils and Parganas). Sthaniya was a fortress established in th e center of eight hundred villages, a dronamukha in the midst of 400 villages, a kharvatika in the midst of 200 villages and a sangrahana in the center of ten villages, Law courts were established in each sangrahana, and also at the meeting places of districts (Janapadasandhishu). The Court consisted of three jurists (dhramastha) and three ministers (amatya).7
This suggests the existence of circuit courts, for it is hardly likely t hat three ministers were permanently posted in each district of the realm. The great jurists, Manu, Yajn-valkya, Katyayana, Brihaspati and others, and in later times commentators like Vachaspati Misra and others, described in detail the judicial system and legal procedure which prevailed in India from ancient times till the close of the Middle Ages.
Hierarchy of courts in Ancient India
According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court.8
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.9
A ccording to Vachaspati Misra, “The binding effect of the decisions of these tribunals, ending with that of the king, is in the ascending order, and each follo wing decision shall prevail against the preceding one because of the higher degree of learning and knowledge”. 10
It is noteworthy that the Indian judiciary today also consists of a hierarchy of courts organized on a similar principle-the village courts, the Munsif, the Civil Judge, the District Judge, the High Court, and finally the Supreme Court which takes the place of the King’s Court. We are following an ancient tradition without being conscious of it.
The institution of family judges is noteworthy. The unit of society was the joint family which might consist of four generations. Consequently, the number of the member of a joint family at any given time could be very large and it was necessary to settle their disputes with firmness combined with sympathy and tact. It was also desirable that disputes should be decided in the first instance by an arbitrator within the family.
Modern Japan has a somewhat similar system of family Courts. The significance of the family courts is
that the judicial system had its roots in the social system which explains its success. The fountain source of justice was the sovereign. In Indian jurisprudence dispensing justice and awarding punishment was one of the primary attributes of sovereignty. 11 Being the fountain source of just ice, in the beginning the king was expected to administer justice in person, but strictly according to law, and under the guidance of judges learned in law.12 A very strict code of judicial conduct was prescribed for the king. He was required to decide cases in open trial and in the court-room, and his dress and demeanour were to be such as not to overawe the litigants.
He was required to take the oath of impartiality, and decide cases without bias or attachment. Says Katyayana: “The king should enter the court-room modestly dressed, take his seat facing east, and with an attentive mind hear the suits of his litigants. 13 He should act under the guidance of his Chief Justice (Praadvivaka), judges, ministers and the Brahmana members of his council. A king who dispenses justice in this manner and according to law resides in heaven”. 14
These provisions are significant. The king was required to be modestly dressed (vineeta-vesha) so that
the litigants were not intimidated. The code of conduct prescribed for the king when acting as a judge was very strict and he was required to be free from all “attachment or prejudice”15 Says Narada: “If a king disposes of law suits (vyavaharan) in accordance with law and is self-restrained ( in court), in him the seven virtues meet like seven flames in the fire” 16 Narada enjoins that when the king occupies the judgment seat (dharmasanam), he must be impartial to all beings, having taken the oath of the son of Vivasvan. (The oath of Vivasvan is the oath of impartiality: the son of Vivasvan is Yama, the god of death, who is impartial to all living beings).17
The King’s Judges The judges and counselors guiding the king during the trial of a case were required to be independent and fearless and prevent him from committing any error or injustice. Says Katyayana: “If the king wants to inflict upon the litigants (vivadinam) an illegal or unrighteous decision, it is the duty of the judge (samya) to warn the king and prevent him.” 18
“The judge guiding the king must give his opinion which he considers to be according to law, if the king does not listen, the judge at least has done his duty.19 When the judge realizes that the king has deviated from equity and justice, his duty is not to please the king for this is no occasion for soft speech (vaktavyam tat priyam natra); if the judge fails in his duty, he is guilty.” 20
Delegation of Judicial power by the King
As civilization advanced, the king’s functions became more numerous and he had less and less time to
hear suits in person, and was compelled to delegate more and more of his judicial function to professional judges. Katyayana says: “If due to pressure of work, the king cannot hear suits in person he should appoint as a judge a Brahmin learned in the Vedas.”21
The qualifications prescribed for a judge were very high. According to Katyayana; “A judge should be
austere and restrained, impartial in temperament, steadfast, God-fearing, assiduous in his duties, free
from anger, leading a righteous life, and of good family. 22
In course of time, a judicial hierarchy was created which relieved the king of much of the judicial work, but leaving untouched his powers as the highest court of appeal. Under the Maurya Empire a regular judicial service existed as described above.
Quality of the Judiciary: Integrity
I shall now say a few words about the quality of the Judiciary and the code of conduct prescribed for
judges. The foremost duty of a judge was integrity which included impartiality and a total absence of bias or attachment. The concept of integrity was given a very wide meaning and the judicial code of integrity was very strict. Says Brihaspati: “A judge should decide cases without any consideration of personal gain or any kind of personal bias; and his decision should be in accordance with the procedure prescribed by the texts. A judge who performs his judicial duties in this manner achieves the same spiritual merit as a person performing a Yajna.”* 23
The strictest precautions were taken to ensure the impartiality of judges. A trial had to be in open court and judges were forbidden to talk to the parties privately while the suit was pending because it was recognised that a private hearing may lead to partiality (pakshapat). Shukra-nitisara says: “Five causes destroy impartiality and lead to judges taking sides in disputes. There are attachment, greed, fear, enmity, and hearing a party in private.”24
Another safeguard of judicial integrity was that suits could not be heard by a single judge, even if he was the king. Our ancients realized that when two minds confer, there is less chance of corruption or error, and they provided that the King must sit with his counselors when deciding cases, and judges must sit in benches of uneven numbers. Shukra-nitisara enjoined that “Persons entrusted with judicial duties should be learned in the Vedas, wise in wordly experience and should function in groups of three, five, or seven.”25 Kautilya also enjoined that suits should be heard by three judges (dharmasthstrayah). Our present judicial system, created by the British, does not follow this excellent safeguard. Today every suit is heard by a single Munsif or civil Judge or District Judge for reasons of economy. But the state in ancient India was more interested in the quality of justice than economy.
Integrity Every Smriti emphasizes the supreme importance of judicial integrity. Shukra-nitisara says: “The judges appointed by the king should be well versed in procedure, wise, of good character and temperament, soft in speech, impartial to friend or foe, truthful, learned in law, active (not lazy), free from anger, greed, or desire (for personal gain), and truthful.”26
Punishment for corruption
Corruption was regarded as a heinous offence and all the authorities are unanimous in prescribing the
severest punishment on a dishonest judge. Brihaspati says: “A judge should be banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the confidence reposed in him by a trusting public.” 27 A corrupt judge, a false witness, and the murderer of a Brahmin are in the same class of criminals.28 Vishnu says: “The state should confiscate the entire property of a judge who is corrupt.” 29
Judicial misconduct included conversing with litigants in private during the pendency of a trial. Brihaspati says: “A judge or chief justice (Praadvivaka) who privately converses with a party before the case has been decided (anirnite), is to be punished like a corrupt judge.” 30
Jurors
The most noteworthy feature of the judicial system was the institution of sabh asada or councilors who
acted as assessors or adviser of the King. They we re the equivalent of the modern jury, with one important difference. The jury of today consists of laymen- “twelve shopkeepers”-whereas the councilors who sat with the Sovereign were to be learned in law. Yajanvalkya enjoins: “The Sovereign should appoint as assessors of his court persons who are well versed in the literature of the law, truthful, and by temperament capable of complete impartiality between friend and foe.” 31
These assessors or jurors were required to express their opinion without fear, even to the point of disagreeing with the Sovereign and warning him th at 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.”32 The same injunction is repeated in an identical verse in Shukr-nitisara.33 The Sovereign-or the presiding judge in his absence-was not expected to overrule the verd ict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in accordance with their advice. Shukr-nitisara says: ” The King after observing that the assessors have given their verdict should award the successful party a decree (Jaya-patra).”34 Their status may be compared to the Judicial Committee of the Privy Council which “humbly advise” their Sovereign, but their advice is binding. It may also be compared to the peoples’ assessors under the Soviet judicial system who sit with the professional judge in the Peoples’ Court but are equal in status to him and can overrule him.
But there was one exception. If in a difficult case the jurors were unable to come to a conclusion, the
Sovereign could decide the matter himself. Shukra-nitisara says, “If they (the assessors) are unable to
decide a dispute because it raises difficult or doubtful issues (sandigdha-roopinah), in such a case the
Sovereign may decide in the exercise of his Sovereign privilege.35
Criminal Trials
In criminal trials it appears that the question of innocence or guilt of the accuse was decided by the judge or the jurors, but the quantum of punishment was left to the King. 36 In the trial scene in Mrichchhakatika, The Little Clay Court, the judge after pronouncing Charudatta guilty of the murder of Vasantasena, referred the question of punishment to the King with the remark, “The decision with regard to Charudatta’s guilt or innocence lies with us and our decision is binding (Pramanam), but the rest lies with the King.”37
Interpretation of the Text of the law
Principles of interpretation were developed to high de gree of perfection. Judges were required to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro ditena vidhina). This involved interpretation of the written text of the law-a task which created many problems such as the elucidation of obscure words and phrases in the text, reconciliation of conflicting provisions in the same law, solution of conflict between the letter of the law and principles of equity, justice and good conscience, adjustment of custom and smritis, and so on. This branch of law was highly developed and a number of principles were enunciated for the guidance of the courts. The most important of them related to the conflict between the dharm-shastra and the artha-shastra.
Three systems of substantive law were recognized by the court, the dharma-shastra, the arth-shastra, and custom which was called sadachara or charitra. The first consisted of laws which derived their ultimate sanction from the smritis and the second of principles of government. The bordr line between the two often overlapped. But the real distinction between the smritis and arth-shastra is uniformaly secular, but that of the dharma-shastra not always so. IN fact so remarkably secular is the arth-shastra in its approach to the problems of government that this has induced some writers to advance the theory that the artha-shastra (literal meaning: the science of ‘artha’ or pursuit of material welfare), did not evolve from the dharma-shastra but had an independent origin and developed parallel to it.
Whatever their respective origins, in several matt ers the arthashastra and the dharma-shastra are in
conflict. How did the law courts resolve this conflict when it arose in particular suits? The first principle was that of avirodha: the court must try to resolve any apparent conflict between the two. 38 (This is called the principle of harmonious construction today. But if the conflict could not be resolved, the authority of the dharma-shastra was to be preferred. Bhavishya purana provides : “whens mriti and artha-shastra are inconsistent, the provision in the artha-shastra is superseded (by smriti); but if two smritis, or two provision in the same smriti are in conflict, whichever is in accordance with equity is to be preferred.” 39 Narada smriti lays down a similar rule of interpretation according to reason in case of conflict between two texts of the smritis.40 But while interpreting the wr itten text of the law, the court was to bear in mind that its fundamental duty was to do justice and not to follow the letter of the law. Brihaspati enjoined: ” The court should not give its decision by merely followi ng the letter of the shastra for if the decision is completely devoid of reasoning, the result is injustice (dharma-hani).”41 Brihastpati further says that the court should decide according to the customs and usages of the country even if they are in conflict with the letter of the law;42 and he gives several remarkable illustrations which incidentally throw a flood of light on contemporary social conditions.
He points out that the maternal uncle’s daughter is accepted in marriage by brahm anas of the south; in Madhya desha (Central India), brahmanas become hired labourers and craftmen and eat cow’s flesh; eastern brahmanas eat fish and their women are addicted to drinking and can be touched by men even when in their monthly courses. On account of the acts specified these communities, in their respective countries, should not be liable to undergo penance r incur judicial punishment. 43
Changing customs: Changing laws
In view of the vital part played by custom (achara, sadachara, charitra ) in society, the State was required to maintain an authenticated record of the customs observed in the various parts of the country.
Katyayana enjoins: “Whatever custom is proved to be followed in any particular region, it should be duly recorded as established (dharya) in a record stamped with the seal of the Sovereign.”44 But even an established custom could be formally “disestablished” if in course of time it became inequitable. In fact, it was the duty of the Sovereign to remove from time to time the dead or rotten branches of custom.
Katyanana enjoined: “When the Soverign is satisfied t hat a particular custom is contrary to equity
(nyayatah) in the same way-that is in the way it was established- it should be annulled by a formal
decision of the Sovereign.” 45 This remarkable provision indicates how highly developed was the judicial and legal system of ancient India. The state was required to keep an authenticated record of all valid customs prevailing in the different regions of the realm.
Very often the decision in a suit depended on proof of the existence of a custom. Narada says, “The basis of a judicial decision (vyavahara) may be: (i) Dharma-shastra, (ii) (previous) judicial decisions (vyavahara) or custom (charitra) or the decrees of the Soverign. The authority of these four is in the reverse order, each preceding one being superseded by the one following it. 46 The artha-shastra contains an indentical provision.
Evolutionary concept of law
The significance of these provisions can not be ov eremphasized. By gearing law to changing customs
Indian jurisprudence gave the concept of law a secular content. Moreover, it developed the evolutionary concept of law and rejected the concept of an absolute, eternal, never-c haning law. Both
Manu and Parashara say: “The laws of kritayuga are different from those of treat and dwapara, and the laws of kali yuga are different from those of all the previous; ages- the laws of each age being according to the distinctive character of each age (yuga roopanusaratah).” 47
Mode of Proof (Law of Evidence)
The law of evidence (the mode of proof) is an index of the quality of a judicial system. In this respect, the Indian judicial system was in advance of any other system of antiquity.
In ancient societies proof by supernatural devices, such as trial by ordeal, was quite common. In England it prevailed till the very close of the middle ages. But our judicial system prohibited resort to supernatural devices, if oral or documentary evidence was available. 48
Discovery of truth is real test The real test of any judicial system is that it should enable the law courts to discover the truth, and that of ancient India stands high under this test. “In disputes the Court has to ascertain what is true and what is false from the witnesses,” enjoins Gautam.49 All available evidence indicates that in ancient India bearing false witness was viewed with great abhorrence.50 All the foreign travelers from Megasthenes in the 3rd century B. C. to Huan Tsiang in the 7th century A. D. Testified that truthfulness was practiced by Indians in their wordly relations. “Truth they hold in high esteem”, wrote Megasthenes.51 Fa Hien and Huan Tsiang (who visited India during the reign of Harsha) recorded similar observations. A virtue practiced for a thousand year became a tradition.
The procedure and atmosphere of the Courts discouraged falsehood. The oath was administered by the judge himself, and not by a peon as today. While giving the oath the judges were required to address the witness extolling truthfulness as a virtue and condemning perjury as a horrible sin. Brihaspati says, “Judges who are well-versed in the dharmashastra should address the witness in words praising truth and driving away falsehood (from his mind)”.52 The judges’ address to the witness did not consist of set words but a moral exhortation intended to put the fear of God in him. All the texts are unanimous on this point.53
According to Narada, “The judges should inspire awe in the witness by citing moral precepts which should uphold the majesty of truth and condemn falsehood”.54 All the smirtis were unanimous in holding that perjury before a law court was a heinous sin as well as a serious crime. 55 There were other provisions, calculated to reduce the changes of false evidence being given. Katyayana enjoined, with much common sense that there should be no delay in examining witnesses- obviously because delay dims the memory and stimulates imagination. “The Sovereign should not grant any delay in the deposition of witnesses; for delay leads to great evil and results in witnesses turning away from the law.”56
Administrative Courts
An important feature of the judicial system of ancient India were the Special Courts of criminal jurisdiction called the Kantakasodhana Courts. The artha-shastra says, “Three commissioners (pradeshtarah) or three ministers shall deal with measures to suppress disturbance to peace (kantakasodhanam kuryuh).
According to the artha-shastra these courts took cognizance not only of offences against the States but
also violations of the law by officials in the discharge of their official duties. Thus if traders used false weights or sold adulterated good, or charged excessive prices, if the labourer in the factory was given less than a fair wage or did not do its work properly, the Kantakasodhana courts intervened to punish the culprits. Officers charged with misconduct, persons accused of t heft, dacoity and sex offences had to appear before the same court. These Courts had all the characteristics of administrative courts. The
existence of an Administrative Code is indicated in the Fourth part of the Artha-shastra. Administrative Code The State in ancient India had a public sector of huge dimensions engaged in commerce and industry.
The modern capitalist notion that there should be no industries run by the State would have appeared idotic to our ancients. Under the Mauryan Empire there was a State mercantile marine, a state textile industry, a state mining industry, and a state trading department in charge respectively of a Superintendent-General of Shipping (navadhyaksha). Textiles (Sootradhyaksha), mining akaradhyaksha), and commerce. The regulation of each state industry was under its own rules and all
the rules were compiled and classified in the artha-shastra and may be regarded as an Administrative
Code. I shall give a few illustrations.
The artha-shastra provides a complete Administrative Code prescribing rules of maritime and riparian navigation. It enjoined that the State should have a Superintendent-General of Navigation whose duties are defined thus: “The Superintendent of ships shall examine the accounts relating to navigation not only on the oceans and mouths of the rivers, but also on lake s, natural or artificial, and in the vicinity of Sthaniya and other fortified cities.”58 The chapter contains a provision for the ships to have adequate few for ships. There were strict regulations to ensure th e safety of vessels: “For navigation on large rivers which cannot be forded (atarya) even during winter and summer season, there shall be a service of large boats (mahanavo), with a captain (shasaka), pilot (n iyamaka), a crew to hold the sickle and the ropes, and to clear the boat of water.”59
The artha-shastra also contains regulations indicating that the state mercantile marine operated on the high seas and it provided that “passengers arriving in port on the royal ships shall pay their passage money (yatra-vetanam).”60 The rates were to be fixed by the Superintendent-General. Incidentally, the existence of this code proves beyond doubt that the people of India were a sea-faring people with extensive trade relations with foreign countries.
Similarly, the manufacture of textiles and cotton yarn, which was a huge industry exporting textiles to foreign countries had a public as well as a private sector. The public sector was under a Superintendent- General of Textiles (Sootradhyaksha). He had a large organization under him. The artha-shastra prescribed the duties of the Sootradhyaksha and the other officials working under him. It enjoins: “The Superintendent-Genral of Weaving shall employ qualified persons to manufacture treads (sutra), coats (varma), clothes (vastra), and ropes.”61 One of his duties was to give employment to women in their own homes. Cotton was distributed among them and spun into tread and either collected by the department or delivered by the women themselves. But the artha-sh astra contains strict regulation against the taking of liberties with such women or withholding their wages. It prescribed: “If the official of the Superintendent stares at the face of such woman or tries to engage her in conversation about matters other than her work (in other words, makes what an American would call a pass at her) he will be punished as if he is guilty of a first assault.62 “Delay in payment of wages shall be likewise punishable.63 Another regulation made it a punishable offence to show any undue favour to a women worker. It provided; “If an official pays wages to a woman for no work done, he will be punished.”64
Collection of taxes and import duties
There was a code prescribing rules governing the collection of taxes and import duties. This development was in charge of the Superintendent General of ta xes (Shulkadhyaksh). The merchants at the customs were liable to declare their merchandise which ha d to bear a seal when imported. Penalties were prescribed for making a false declaration. One rule enjoined: “If the merchandise bears no seal, their duty shall be doubled”.65 But in case of counterfeit seal, the merchant was liable to pay a penalty amounting to eight times the normal duty. 66 If the seal was torn, the merchant was liable to be detained in a lock-up reserved loiterers.67
The Administrative Code in the 4th Section of the artha-shastra contains detailed regulations for the
control of the other departments of the state. These regulations were not enforced by the ordinary courts but by Commissioners (Pradeshtarah) who functioned as Kantak Shodhana courts.
I shall sum up the fundamental principles on which the judicial process in ancient India was founded: The trial was always in public 68 and always by several judges collectively. Cases were heard in their serial order except in case of urgency.69 Delay in the disposal of cases was condemned by all authorities and judges who were guilty of such delay were liable to be punished.70 The Sovereign was not to interfere with the judiciary but on the contrary the latter was under a duty to interfere in case of a wrong (judicial) decision by the king.71 The Judges were to be impartial ; during the pendency of the suit they were forbidden to have any private talks or relations with the parties. If a judge was guilty of partiality, or harassment, or deliberately violated the prescribed procedure, he was liable to be punished. Corruption was the most heinous offence in a judge and a corrupt judge was banished from the realm and forfeited all his property. The procedure for suits was prescribed by law, and every suit was initiated by a complaint or plaint filed by the aggrieved party who prayed for the redress of a legal wrong.72 Citizens were strictly forbidden to instigate or finance or file complaints in which they were not interested, and champerty was a punishable offence. I cannot do better than quote the verd ict of a very recent English writer: “In some respects the judicial system of ancient India was theoretically in advance of our own today.”73
Notes
1 History of the Constitution of the Courts and Legislative Authorities in India, by Cowell (1872), p.3.
2 Alan Gledhill: The Republic of India, p.147.
In fairness I must state that several British Indologists of eminence like E.B. Ha vell, A.L.Basham, Spellman, and others, do not share the prejudices of their imperialist predecessors though their approach may be different from ours. The reader is advised to study The History of Aryans Rule in India by E.B. Havell; The Wonder that was India by A.L. Basham, and Political Theory of
Ancient India by John W. Spellman.
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36 The State and Government in Ancient India, by A.S. Alkkar, p.249. I am indebted to this work for several valuable ideas.
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50 A.L. Basham: The Wonder that was India, p.116.
51 Ancient India as described by Magasthenes and Arian, by Mc. Rindle, p.6.
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53 Manu, VIII, 79-87; Narada I, 200-228, Katyayana, 388-390; Yajnaa-II, 273-74.
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55 Brihaspati V, 34; Manu VIII, 80-87; Yajna II, 73-74; Narada I, 220-228; Baudh I, 13,14,19.
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