BA LLB first year first semester Indian History sample question answer Judiciary System in Ancient India

BA LLB first year first semester Indian History sample question answer Judiciary System in Ancient India:

this article you will read about JUSTICE AND LAW IN ANCIENT INDIA|sources of ancient Indian law|ancient Indian laws and punishments|describe the law and judicial system in ancient india|judicial system in ancient India ppt|discuss the judicial system in ancient India

Q. 1. According to Kautilya many kinds of law was present in ancient India. Discuss it.

Ans. Importance of Justice and Kinds of Law. As the duty of a king consists in protecting his subjects with justice, its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal sceptre (danda) in vain. It is this power Jone which when exercised by the king with impartiality and proportion to guilt, whether over his son or his eneny, maintains both his world and the next. The king who administers, justice in accordance with sacred law (dharma), evidence (vyavahara), history (samstha), and edicts of kings (nyaya) will be able to conquer the whole world bounded by the four quarters App

Sacred law, evidence, history (charitra) and edicts of kings (rajashasana) arc the lour legs of Taw. Of these four in order, the latter is superior to the preceding one. Dharma is eternal truth holding its sway over the world; evidence (vyavahara) is in witnesses, history (charitra) is to be found in the tradition (sangraha) of the people; and the order of kings is called sasana. Whenever there is disagreement between history and sacred law or between evidence and sacred law, the matter should be settled in accordance with sacred iaw. But whenever Sacred law is in conflict with rational law (dharmanyaya, king’s law), The reason should be held authoritative.

Courts. In the cities of sangrahana, dronamukha, and sthaniya and at places where districts meet, three members acquainted with sacred law (dharmasthas) and three ministers of the king (amatyas) should carry on the administration of justice. This provision has been made for the administration of justice in civil cases (vyava-hráva). For criminal cases Kautilya says that three commissioners (pradeshtarah) or thrée ministers should deal with measures to suppress disturbance to peace (kantakasodhanamkuryuh).

The civil courts have been authorised to decide the following types of cases : (determination of forms of agreements, determination of legal disputes, concerning marriage, division of inheritance, buildings, non-performance of agreements, recovery of debts, concerning deposits, rules regarding slaves and labours, cooperative undertakings, recession of purchase and sale, resumption of gifts, sale without ownership, ownership, robbery, defamation, assault, gambling and betting, etc.)

The jurisdiction of the other courts includes protection against artisans, protection against merchants, suppression of the wicked living by foul means, seizure of criminals or suspicion or in the very act, examination of sudden death, protection of all kinds of government departments, sexual intercourse with immature girls, etc:

Court Procedure. It is obligatory to produce three witnesses who

are reliable, honest and respected. At least two witnesses acceptable to the parties are necessary; never one witness in the case of debts. Wife’s brothers, co-partners, creditors, debtors, enemies, manned persons, or persons once punished by the government should not be taken as witnesses. In disputes concerning assault, theft, or abduction, persons other than wife’s brothers, enemies and co-partners can be witnesses. Witness should be taken before Brahmanas, vessels of water, and fe.

Punishments When government servants commit for the first time such offenses as violation of sacred institutions or pickpocketing, they should have their thumb and the little fingers cut off or should pay a fine of 54 panas; when Tor a second time (they commit the same), they should have their lest hand cut off or pay a fine of 100 anas; when for a third time, they should have their right hand cut off or pay a fine of 400 panas; and when for a fourth time, they should in any way be put

to death.

Courts. In the cities of sangrahana, dronamukha, and sthaniya and at places where districts meet, three members acquainted with sacred law (dharmasthas) and three ministers of the king (amatyas) should carry on the administration of justice. This provision has been made for the administration of justice in civil cases (vyava-hráva). For criminal cases Kautilya says that three commissioners (pradeshtarah) or thrée ministers should deal with measures to suppress disturbance to peace (kantakasodhanamkuryuh).

The civil courts have been authorised to decide the following types of cases : (determination of forms of agreements, determination of legal disputes, concerning marriage, division of inheritance, buildings, non-performance of agreements, recovery of debts, concerning deposits, rules regarding slaves and labours, cooperative undertakings, recession of purchase and sale, resumption of gifts, sale without ownership, ownership, robbery, defamation, assault, gambling and betting, etc.)

The jurisdiction of the other courts includes protection against artisans, protection against merchants, suppression of the wicked living by foul means, seizure of criminals or suspicion or in the very act, examination of sudden death, protection of all kinds of government departments, sexual intercourse with immature girls, etc:

Court Procedure. It is obligatory to produce three witnesses who

are reliable, honest and respected. At least two witnesses acceptable to the parties are necessary; never one witness in the case of debts. Wife’s brothers, co-partners, creditors, debtors, enemies, manned persons, or persons once punished by the government should not be taken as witnesses. In disputes concerning assault, theft, or abduction, persons other than wife’s brothers, enemies and co-partners can be witnesses. Witness should be taken before Brahmanas, vessels of water, and fe.

Punishments When government servants commit for the first time such offenses as violation of sacred institutions or pickpocketing, they should have their thumb and the little fingers cut off or should pay a fine of 54 panas; when Tor a second time (they commit the same), they should have their lest hand cut off or pay a fine of 100 anas; when for a third time, they should have their right hand cut off or pay a fine of 400 panas; and when for a fourth time, they should in any way be put

to death.

Taking into consideration the social position of persons, the nature of the offence, the cause, whether grave or slight (that to the perpetration of the offence), the antecedent and present circumstances, the time and

 the place, and without failing to notice quitable distinctions among offenders, whether belonging to royal araily or to the common people, the commissioner should determine the propriety of imposing the first, middle most, or highest punishments. 

He who causes a Brahmana to partake of whatever food or Iriok is prohibited should be punished with the highest punishments. He who causes a Kshatriya to do the same should be punished with the middlemost punishment; a Vaishya with, the [irst punishment, and a Shudra, with a sine of 54 panas. Further, a Kshatriya who commits adultery with an unguarded Brahmana woman should be punished with the highest punishment; a Vaishya doing the same should be deprived of the whole of his property : and Shudra should be burnt alive.

It is clear from the brief details of the judicial administration that the spirit of rigid organisation which marked the executive, pervaded the judicial administration. Further, impartial justice was recognised to be the bedrock of sound government, although the measure of punishment varied with distinctions of social class (varnas). There were two kinds of courls, partly resembling the modern system. The whole judicial administration was presided over by the Chief Judge. Above him stood the king, assisted by his ministers and lawyers.

Q. 2. Discuss the importance of Justice and Concept of Law in brief.: Ans.

Importance of Law All Hindu theory lays the greatest stress on the administration of justice as an essential part of the protection to which the people are entitled from the government. Kautilya writes : As the duty of a king consists in protecting his subjects with justice, its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal sceptre in vain. Manu observe : ‘Where justice, wounded by injustice, approaches and the judges do not extract the dart, there (they also) are wounded (by that dart of injustice). Where justice is destroyed by injustice, or truth by falsehood, while the judges

is,  look on, There they shall also destroyed. Justice, being violated destroys;

justice, being preserved, preserves; therefore justice must not be violated, lest violated justice should destroy.’ Concept of Law

The most important source of law was dharma and man writers do not distinguish between the two. But dharma as can evidently be understood, was wider than law, being the basis of justice. Dharma has been variously interpreted; however, for our purposes dharma was that which possessed the authority of the Vedas or the commentaries on the Vedas, and it had its example in the virtuous conduct of those who knew the Vedas. The preservation of dharma was the major obligation of the stale; this is why in Hindu political theory religious and political ideas are often juxtaposed. ‘Dharma is propriety, socially approved conduct, in relation to one’s fellow men or lo other living beings. Law, social usage, morality, and most of what we ordinarily mean by religion, all fall under this head.’

In the account of cosmic creation (given in Brihadaranyaka Upanishad) Brahma is described as successively creating the divine prototypes of the Kshatriyas, the Vaishyas, and the Shudras. Then it proceeds : ‘He was not strong enough. He created still further the most excellent law (dhama). Law is the Kshatra of the Kshatra, therefore there is nothing higher than the Law. Thenceforth even a weak man rules a stronger with the help of the Law as with the help of a king. Thus the Law is what is called the true. According to this passage, Law is derived from the will of the creator. Further, Law represents the highest positive authority supplementing the powers of three inserior classes, and over-riding in particular the civil authority represented by the office of the Kshatriyas. In the last place, Law is synonymous with Morality. While such is the origin and character of the concept of Law, its scope is defined elsewhere to be co-extensive with part of the social order. The passage tinder relcrence in Chhandogya Upanishad) includes the first three stages (ashramas) of the Aryan’s lise within the compass of the Law. It further appears to invest these duties with a high spiritual significance for it explicitly declares their fullilment to lead to heavenly bliss.

The Dharmashastra, of which Manu, Yajnavalkya, Brihaspati, and Narada are the most important (and are also called smritis) expanded and systematized the social and religious regulations of the orthodox

Brahmanic culture, which are accepted as authentic guides to Law, custom, and duty. Again and again it has been declared that the Law of the Hindus was above the king; so it was the king of kings. In Manu, the king is made liable to be fined. His powers and obligations are defined in the law-sutras and law-books as part and parcel of the law. ‘Even in the palmiest days of Hindu monarchy, neither in the Manava Dharma-shastra nor in the Arthashastra, was the king placed above the law. He could make new laws according to the Arthashastra. According to Manu he could not do so; but when he could make law he passed Only regulatory laws and not laws substantive or laws making him arbitrary.’ In short, the king was under the law of Dharma.

A basic tenet of Hindu political and legal thought-was the belief that the king should regard himself not as the creator of the law, but only as its guardian. But from about the third century B.C. there seems to have developed a growing appreciation of the need to supplement tradition and the sacred texts with other, more tractable, means of regulating the community. In varying degrees the Mauryan kings (in the new situation created by the rise of Buddhism and Jainism) assumed a legislative function. Rajashasana

The theory that emerged after the fact held that this departure from the original rajadharma must be carefully controlled and that the royal edict, rajadharma, must harmonize with customary and sacred law. Rajashasana is not properly king made law, but is more in the nature of a commentary, an administrative edict, a codification, or an attempt to enlighten the public on the subject of dharma. Gradually, with the recognition of a sphere of statutory law, a distinction between moral and positive law (and the sanctions of each) came to be understood. In summary, we can say that in Hindu thought, law includes both the ethical conception of law, to be discovered in conscience or in custom or in the model provided by the conduct of righteous men, and the law established by legislation, which commands because it has the backing of the coercive state. Sources (or Basis) of Law

Kautilya says : ‘In virtue of his power to uphold the observance of the respective duties of the four castes and of the four divisions of Religious life, and in virtue of his power of guard against the violation

of the Dharmas, the king is the fountain of justice (dharma prarartaka). Sacred law (dharma), evidence (vyavahara), history (charitra), and edicts of kings (rajashasana) are the four legs of law; of these four in order the latter is superior to the one previously named. Dharma is eternal truth holding its way over the world; vyavahara, evidence, is in witnesses; charitra, history, is to be found in the tradition (sangraha) of the people; and the order of king is what is called shasana.’

It is very significant that Kautilya has placed Rajashasana above all other kinds of law (including the dharma). Kautilya attempted to raise the royal decree to the status of truc law and even to make the king’s edict the supreme authority whenever it came into conflict with other types of law.’ In Sliukrajiill, too, the duties of the minister of law, called Pandita (the learned minister, also called Dļiarmadhikarin elsewhere) are thus denned. “The Pandita having considered what ancient and present laws are at present followed by the community, which of them are approved in the codes and which laws now offend against jurisprudence, and which of them are opposed to the community and jurisprudence, shall recommend to the king laws which secure happiness both here and hereafter…

Jayaswal rightly comments : ‘This affords a glimpse into the Hindu method of legal reform. Hindu law was normally considered traditional and as such could not, in theory, be altered by direct or avowed changes introduced by the State. The law was, however, occasionally altered by direct legislation and more generally by interpretation and also by new treatises fathered on ancient names, e.g., the Narada Smriti. Over and above these there was the agency of the two law ministers. The ministers rejected such laws as having regard to the circumstances of the community and public weal were deemed undesirable to be put into operation. They also took into consideration the popular view with regard to the current laws.’

About the nature and source of law, Altekar says that Dharma includes religious and ritualistic law as well as rules of morality and prudence. But these were not usually enforced by the law courts in India. Laws in ancient India were for a long time preserved only in tradition, ‘Such of these rules as pertained to family and social life and personal law’s, and created civil and criminal rights, were enforceable

in law courts. Besides administering the rules embodied in a part of

the Dhannashatra literature, courts enforced jatidliarmas (rules of castes), Janapadadharmas (local customs), srenidiarmas (bye-laws of guilds), knladliannas (family traditions) in so far as they created civil and legal rights. Features of Judicial System in Ancient India

These may briefly be discussed as fellows: (1) As is quite evident from the foregoing discussion, the foremost feature was that justice and religion were not distinguished; and jurists described punishments for failure in religious observance. The Arthashastra deals with the consumption of forbidden food or drink by the varnas; and penances are prescribed by Manu. The king’s treatment of priests and ascetics is part of the science of statecrast; he is to respect local customs. Thus the Brahamanas and their lore were not a separate department of life without practical involvement in legal judgements or political affairs. In both spheres kings depended on them. Chandragupta Maurya had a Brahmana minister who represented in the later drama Mudrarakshasa as the real behind the throne.

(2) The administration of justice under Hindu monarchy remained always separate from the executive, and generally in pendent in form and ever independent in spirit. The executive was not to interfere with the judiciary. The judges were to be impartial during the pendency of the suit they were not to have any private talk or relation with the parties. In short, justice was fairly administered

(3) Hindu jurisprudence insisted that trial should be in public and what the cases should be normally disposed of serially except in the case of urgency. The clerk of the court, not taking the deposition correctly, was severely dealt with. An accused could plead duress in sell-defense. When deciding upon punishment, the judge was to take into consideration the nature of the crime, the motive of the accused his age and status in society. ‘Hindu jurisprudence was guided by the principle that judge and juror were to be as ‘impartial as possible, Unnecessary delay must be avoided in bringing a case to trial. The broadest publicity should be given to statutes and decrees so that the legal consequence of actions would be known; the trial should be open to the people. The evidence of witnesses was generally held to be conclusive. Every person (except possibly the Shudra, who was

considered by the most orthodox schools of law to have fortified his claim to justice) possessed the right of judicial protection.

(4) The system of trial by jury prevailed. In the court scene of the Mrichchhakatika, the jury is mentioned. The function of the jury has been defined in the Shutkaniti as well as in Brihaspati and Narada. The jury was to be composed of seven, five or three and they were to be the examiners of the cause. There is an interesting reference in some Dharmasutra texts to the partial adoption of the jury system in judicial trials. While recommending the application customary laws of the current trades and professions for the adjudication of the respective groups, Gaidama observes that the king shall ascertain the law from those who have authority over these respective classes, and shall give his decision accordingly. Again, Vashista tells us that boundary disputes are to be decided, evidently by the local judicial authority, on the evidence of elders of the town or the village, or else of the srenis when there is .conflict between the documentary evidence.

(5) Fines, imprisonment, banishment, mutilation and death sentence were in vogue. Mutilation of the hand was often inflicted upon the thief. Banishment was sometimes imposed upon the members of the privileged classes. In ancient India punishments often differed with the caste of the accused; lighter punishments were recommended to Brahmanas and Kshatriyas. ‘The jurisdiction of the law was far-reaching, and penalties were often extreme. Certain theories for instance, recommended that one convicted of drinking intoxicating liquor be punished by being made to drink boiling water until death resulted.

Usually Indian criminal law was based on the principle that punishment must not exceed the requirements of the community. But the ideals that the community represented called for a greater emphasis on harsh penalties, and on explation, deterrence, and the education of the public than would we to day require.’ : (6) An accidental reference to actual administration of justice found in the Pali canon, throws a flood of light on the purity of justice, disclosing a real rule of law, according to Jayaswal. Here we have a prince and a private citizen submitting their case to the law-court and the court deciding against a royal prince, and the prince accepting the decision, as a matter of course. But it would be wrong to conclude from this that there actually prevailed rule of law, in the modern sense.

it has already been pointed out that punishments differed with the

castes of offenders. Grading of punishments by varna is common Throughout the Arthashastra’s fourth book. Moreover, Brahamanas in. particular enjoyed much greater privileges than other castes. It cannot he said that the administration was actually fair in treating people as equal before the law. We look vain for ethical universalism in ‘official legal and social theory; Hindu monarch was government under law in a certain sense, but this was not the law as the western tradition has come to know it. At the apedx of the structure, enshrined in immunities and privileges protected by the law.codes and by tradition was the Brahamana.

Q. 3. Write the Manu’s ideas on justice. 

Ans.      Administration of Justice 

     Mann’s discussion of the administration of justice is not confined only to the doctrine of danda which the king, according to him, should use very cautiously and impartially with a view to rendering justice in society, but also to the system of checks and limitation imposed by the, paura-janapada and the council upon the king. Manu strongly holds: “Without the mantrins matters of state should never by considered by the king alone, be he an expert in all the sciences and versed in policy. – A wise king must always follow the opinion of the members of the council ar adhikarins or ministers with portfolios, of the President and subject. He must never follow his own opinion. When the sovereign becomes independent (of his council) he plans for ruin. In time, he loses the state and loses the subject. “The king should consult the ministers separately and then all of them together.” in the council, as explained earlier. By thus discussing the king was to derive benefit. The cleverest of the ministers who should be a Brahmana, was to be completely depended upon by the king, and entrusted with the execution of all the resolutións. All the business, thús was to be left for execution in the hands of a Prime Minister of Chancellor, Further, in Manu the king is made liable to be fined, Manu writes:

कार्षपण भवेद्दण्डधी यत्रान्यः प्राकृतो जनः । ।

तत्र रजा भवेद्दण्डघः सहस्रमिति धारणा ॥ 

“Where common man would be fined one karshapana, the king

Shall be fined on thousand that is the settled law.” King’s powers and

obligations are defined in the law-sutras and law-books as part and parcel or the law (in chapters on Constitutional Law, the Rajadharma of ‘Laws for Kings”). Even in the palmiest days of Hindu monarchy, (neither in the Manava-Dharanasastra nor in the Arthasastra, was the king placed above the law. He could make new laws according to the Arthasastra according to Manu, he could not do so; but when he could make laws he passed only.regulatory laws and not laws substantive or laws making him arbitrary.

The Judges in Persia under Cambyses “found a law that the Persian king might do whatever he pleased.” But such a finding was impossible to be admitted by Hindu judges and a lawyers; so much so that even the author of the Arthasastra tells his prince that destruction befalls an arbitrary king. As far as Manu was concerned, he could never approve of the idea of an arbitrary king imposing his will upon his subjects-unscrupulously and ruthlessly. The idea of an arbitrary or an irresponsible king was repulsive to him. His king, in fact, was a costitutional and responsible king, who always respected the decision of his mantri-parishad and who himself was liable to be fined and admonished for his mistakes and.wrong-doings. Theory of Government

Related to Manu’s Principle of coercive authority of the ruler and his doctrine of danda’ is his theory of government which may be considered chiefly under three heads; namely the king the officials and the administrative organization. Under the first heading, Manu considers the intellectual and moral-qualifications of the ruler as the latter is the most important unit of the state administration. Manu asks the king to follow the advice of Brahmanas learned in the Vedas. The king should constantly worship and acquire the knowledge of Supreme Soul. He should exert every effort to conquer his senses, for otherwise he cannot control his subjects. The king’s self control in particular is justified by the old Arthasastra doctrine that this is the prerequisite of his successful administration

Under the second-gelating to the king’s officials, Manu discusses the part played by the king’s ministers and other officers in the administration of the state. Even an easy undertaking, says manu can be performed with difficulty by a single ‘man, how much more difficult

it is to govern a kingdom yielding much revenue, especially if one has assistant. Here Manu discusses the qualifications of different classes of the king’s officials, such as his ministers and other officers, administrative departments. Here it will not be unwise to state that Manu, following the Arthasastra tradition repeats, of course, with slight verbal changes, the seven constituents of the state. According to the early Arthasastra thinkers,t he seven constituent elements (Prakriti) of the political organization (rajya) are: swami (the sovereign ruler), amatya (the official), Janapada (the rural area), durga (the fortified or urban area), kosha (revenue), bala (the standing army) and mitra (the permanent foreign ally). Manu only puts in place of durga and janapada of Arthasastra list pura (the capital city) and rashlra (the kingdom); and the remaining five elements of the state the have been accepted by Manu in original. Manu shows the impossibility of one man rule in view of the difficulty and complexity of governmental affairs. He pleads for the appointment of high officials or ministers to look after each

department of the government separately. Although manu shows an originally when he states that as among the three staves tied together (by a rope of cow’s hair used by a monk), no particular staff is superior, so among the seven ‘limbs’ of the state no particular one can be said to excel the others since each of them has a particular excellence of its own and this involves the essential parity of the factors of the state structure in spite of their admitted inequality in certain respects, his view evidently makes a closer approach to the organismic theory of the state than was achieve by the earlier thinkers..

As regards the third and the last branch of the theory of government,the army which is the means of controlling (the subjects), we are told (Manu, VII, 65) depends upon the minister the revenue and the kingdom depend upon the king, while peace and war depend upon the ambassador. This presents a sharp contrast with Kautilya’s principle of distribution of the departments of the central government based on his appreciation of the political danger from ministers, namely that the revenue and the army should be reserved by the king for his direct control.




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