Chapter XI. Meaning of Vyavahāra, Vyavahārapadas, Kautilya on this Subject, Grades of Courts, Judges, Lawyers, Court Fees, Pleadings, Means of Proof, Documents

Volume III pp. 242–316

Chapter XI. Meaning of Vyavahāra, Vyavahārapadas, Kautilya on this Subject, Grades of Courts, Judges, Lawyers, Court Fees, Pleadings, Means of Proof, Documents

CHAPTER XI

That to administer justice impartially and to punish the guilty were among the prime functions of the sovereign has been stated above (p. 57) The king was deemed to be the fountain (i.e the distributor) of justice Kauṭilya¹ (I.19) prescribes that the king was to look into the disputes of citizens and country people in the 2nd part of the day (divided into ‘eight parts’). Manu (VIII. 1-3) states that the king desirous of looking into the disputes of people should enter the sabhā (the hall of justice) accompanied by brāhmaṇas, ministers and should there decide every day the causes of litigantṣ Śukra IV. 5-45 is the same as Manu VIII. 1, Vas 16 2, Śaṅkha-Likhita, Yāj. I. 327 and II. 1, Viṣṇu Dh. S. III. 72, Nār. (I. 2), Śukra IV. 5-5, Mānasollāsa II. 20, verse 1243 state that the administration of justice was the personal concern of the king. The Mit on Yāj. II. 1 says that protecting the subjects is the highest duty of a king and that that duty cannot be discharged without eradicating and punishing the wicked, which latter requires that the king should administer justice (vyavahāradarśana). Medhātithi on Manu VIII. 1 also says that protection consists in the removal of troubles, secular and spiritual (adṛṣṭa). Manu VIII. 12 and 14 (= Nār III. 8-9 p. 42) personifies the administration of justice as Dharma incarnate by representing that when justice is administered the dart of adharma or falsehood by which dharma is pierced is taken out from the body of Dharma. Yāj. (I 359-360) declares that the impartial administration of justice yields the same rewards as solemn vedic sacrifices do. In this way administra-tion of justice was held to be a very sacred duty. Manu V II. 128 (= Vṛddha-Harita VII. 194) declares that a king who punishes those that do not deserve to be punished and who do not punish those that deserve punishment incurs great obloquy and goes to hell. Vaṣ (19.40-43) prescribes one day’s fast for the king and three ‘days’ fast for the purohita when the king lets off those that deserve punishment and three ‘days’ fast for the king and the kṛcchra penance for the purohita when the king punishes the innocent. The Mahābhārata² (Anuśāsana 6.38 and chap. 70) and Rāmāyaṇa say that if a king intent on pleasures does not show himself to litigants who approach him for deci- sion, he would suffer like king Nṛga. The Śukranītisāra (IV. 5-8) also says the same thing. In the Rāmāyaṇa (VII. 53-54) king Nṛga is said to have been cursed to become a chameleon for a long period by two brāhmaṇas who had a dispute about the ownership of a cow and could not see the king for many dayṣ Megasthenes (Frag. XXVII. pp. 70–71) says 'the king remains the whole day in court without allowing the business to be interrupteḍ' Kaut³ (I. 19) gives the advice that, when in court, the king should not cause petitioners or litigants to wait long at the door, for when a king makes himself inaccessible, those who are near him create confusion about what should or should not be done, whereby the king engenders disaffection among his subjects and makes himself a prey to his foeṣ The king's court⁴ of justice was called dharmasthāna (Śankha- Likhita), dharmāsana (Nārada I. 34, Manu VIII. 23, Śukra IV. 5.46) or dharmādhikaraņa (Kātyāyana and Śukra IV. 5-44). 'The place where the decision of the truth of the plaint (lit. the cause or root of dispute) is carried on by a consideration of the rules of the sacred law is called the dharmādhikaraņa (the Hall of Justice )'—says Kātyāyana Kālidāsa (Śakuntala V) and Bhavabhūti (Uttararāmacarita I.) employ the word dharmāsana.

The authors of smṛtis believed that there was a golden age or era of perfect virtue in the dim past, when men were bent only on right conduct, that later ages saw the advent of sinful promptings, that therefore regulation of life by the learned and the king came into vogue (compare Gaut VIII. 1). Manu I. 81-82 (= Śāntiparva 231. 23-24) state that in the Kṛta age dharma prevailed in its perfection, there was no advent of adharma among men then and that in each of the three succeed- ing yugas dharma declined progressively by the introduction of theft, falsehood and deceit. The Śāntiparva (59. 13 ff) narrates that in the Kṛta age there was no king and no punishment, that gradually kāma (lust) and rāga (passion) began to wield sway and dharma dwindled away. This belief in an ideal or perfect past was universal and was probably depicted in order to induce men to rise higher and higher in goodness and virtue and to make them submit easily to the discipline of government and the priestly requirementṣ This ideal description of the past, is often found associated with the picture of anarchy that reigned in the dim past which was retrieved from horrors by the creation of the kingly office (vide pp 30-34 above). These diametrically opposite views of the past contained in the same works (such as Manu and the Mahābhārata) probably owe their origin to the desire of the writers to make the common people submit to the absolute rule of kingṣ Almost all works even from the Ṛgveda (X. 10. 10) downwards believe in the progressive deterioration of religion and moralṣ A state of anarchy is visualised in a few works only for the purpose of glorifying the great usefulness of the institution of kingship. Nār. I. 1 states¹⁰⁰ 'when people were solely bent on dharma and were truthful, there existed neither administration of law and justice nor hatred nor jealousy. When dharma declined (or disappeared) among men, administration of law and justice came to be introduced and the king was declared to be the decider of disputes and the chastiser (of the guilty)'. Br. also (S. B. E. 33 p. 277) says 'In bygone ages men were pre-eminently virtuous and free from cruel tendencies; now that men are overwhelmed by greed and hatred, judicial procedure has to be declared'.

The idea of Dharma took the place of the very ancient conception of ṛta. In the Ṛgveda ṛta denotes the supreme transcendental law or the cosmic order by which the universe and even the gods are governed and which is intimately connected with sacrifice. Vide Rg. I. 68. 2, I. 105. 12, I. 136. 2, I. 142. 7, I. 164. 11, II 28, 4, IV. 23. 8-10 (in which the word rta occurs ten times), X. 190. 1. On the relation of rta and law Berolzheimer in his ‘The world's legal philosophies’ (translated by Jastrow, New York, 1929) says: “closely connected with the religious and philosophical views of the Aryans are certain fundamental positions in regard to the philosophy of law which in turn became the antecedents of later legal and ethical developments among the Greeks and Romanṣ Foremost among these philosophical conceptions is ‘rite’, which is at once the organized principle of the universe and the divine ordering of earthly life; as the former it regulates the appearance of the sun and the moon, of day and night and embodies the unchangeable principle that pervades the succession of phenomena; as the latter it is affiliated with purpose and human benefit and is exemplified in the flow of the rivers which fertilize the fields; in the cattle useful to men; in the institutions of marriage, of the monarchical state, of the patriarchal home; and in man's sense of responsibility for his sinṣ The derivative conceptions of ‘vrata’, ‘dharma’, ‘dhāma’, ‘svadhā’ represent special aspects of ‘rite’; thus ‘vrata’ refers to any specialized embodied ‘rite’; while ‘dharma’ refers specifically to the moral function of rewarding good and punishing evil” (pp. 37-38). Vide Prof. V. M. Apte's paper or ‘Rta’ in the Ṛgveda (pp. 55-60 of the Silver Jubilee Volume of the Annals of the B. O. R. Institute) in which he tries to prove that rta means primarily ‘the belt of the Zodiac’.

The word vyavahāra is used in several senses in the sūtras and smṛtis. One meaning of vyavahāra is ‘transaction or dealing’ as in Udyogaparva 37. 30 quoted above (on p. 207) or in Āp. Dh. S. II. 7-16-17, I. 6-20. 11 and 16. It also means ‘a dispute, a law-suit’ in Śānti 69-28, Manu VIII. 1., Vaṣ 16-1, Yāj. II. 1., Viṣṇu Dh. S. III. 72, Nār. I. 1 and 2, Śukra IV. 5-5. A third sense is ‘legal capacity to enter into transactions’ (as in Gaut. X. 48, Vaṣ 16.8, Śaṅkha-Likhita (ṛaksed rājā bālānām dhanānyapi ṛpla- vyavahārāṇām &c. quoted in V. R. p. 599) A fourth but a rare sense is 'the means of deciding a matter' (as in Gaut XI. 19 'tasya vyavahāro veda dharmaśāstrāṇyangāni &c ). In this chapter the word vyavahāra is taken to mean 'law-suit or dispute in a court' and 'legal procedure'. This sense is very ancient. In the Delhi-Topra Pillar Edict No. 1 of Aśoka (Corpus I. I. vol. I p. 123) we have the word 'viyoḥalasamatā' (vyavahārasamatā) and the word 'vyavahāravidhi' occurs in Kharavela's Hāthigumphā Inscription (E I. vol XX. p. 79). A 'vohārika-mahāmaṭṭa' (vyavahārika-mahāmātra, minister of justice) occurs in the Mahāvaggā, I. 40 3 and Chullavagga VI 49). In the medieval digests, both law and procedure are sometimes dealt with in one book as in the Vyavahāra-nirṇaya of Varadarāja and the Vyavahāra-mayūkha, sometimes the titles of law are treated of in one work and judicial procedure in another. For example, Cāṇḍeśvara composed the Vivādaratnākara (on titles of law) and Vyavahāraratnākara (on judicial procedure) The word vyavahāra is restricted in some works to judicial procedure alone (as in the Vyavahāramātṛkā of Jīmūtavāhana and the Vyavahāratattva of Raghunandana). The word vivāda which means 'dispute ' is often used as a synonym for vyavahāra in the sense of law-suit or legal procedure or both In Āp. Dh S. II. 11-29 5 and in Nār. I 5 vivāda means 'law-suit' In the Vivādacandra of Misarumisra and the Vivādatāṇḍava of Kamalākara both law and judicial procedure are treated of. Yāj. (II 8 and 305) appears to distinguish between vivāda (law-suit) and vyavahāra (judicial procedure)

The word 'vyavahāra,' is defined by several smṛtis and com- mentatorṣ Kātyāyana gives two definitions, one based on etymology and referring principally to procedure and the other giving the conventional sense having in view a dispute “The (upasarga) vṛ is employed in the sense of 'various', 'ava' in the sense of.' doubt', 'hāra' means 'removing'; vyavahāra is so called because of its removing various doubts ” (quoted by V. M. p. 283, Par. M. III. p. 7 and Kullūka on Manu VIII. 1).⁵ This definition places the administration of justice on a high plane. The purpose of all branches of Indian philosophy is the quest of Truth or Reality. The purpose of legal procedure is, according to Kātyā. to find out the truth when there is a dispute. But there are some points of difference. The philosopher may take his own time in his search for truth; but justice has to be done as quickly as possible. Further, legal procedure has its own method and limitations in finding out the truth, that is, it depends on oral and documentary evidence, while a philosopher's quest of truth may be purely intellectual and subjective. Another definition is: ‘When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech &c.), have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as a debt), is said to be vyavahāra’. Hārīta gives an easier definition: ‘that is declared to be vyavahāra where the attainment of one's wealth (taken away by another) and the avoidance of the dharmas of others (such as those of heretics) are secured with (the help of) the means of proof’ (quoted by the Sṃ C. II. p. 1). The Mit. (on Yāj. II. 1) defines vyavahāra as ‘averment (about a matter) as related to oneself in opposition to another’. Śukra IV. 5. 4 gives another definitioṇ The Vyavahāramayūkha gives a much more elaborate definition (vide text p 1 and notes pp. 3-4 of my eḍ ). A vyavahārapada⁶ means 'the topic or subject matter of litigation or dispute'. It is the same thing as 'vivādapada' which word occurs also in Kaut. (III ∙16 p 191 and IV. 7 p. 218) and in Nār. (dattāpradānika 1, abhyupetyāśuśrūṣā 1). Manu VIII 8 shows that 'pada' means 'sthāna'. Yāj. II. 5 defines it as 'If a person, who is set at naught by others in a manner that is opposed to the rules of smṛti and to good usage or conventions, informs the king (or his judge), that is a vyavahārapada'. From very ancient times eighteen vyava- hārapadas have been enumerateḍ The underlying idea is that most of the disputes between men can be classified under 18 headṣ Even Manu (VIII. 8) was conscious of the fact that the enumeration of 18 vyavahārapadas was a matter of a convenient arrangement and that the number 18 did not embrace all disputes whatever but only the largest number of disputes and the most important among theṃ Medhātithi and Kullūka make this position quite clear.⁷ There is some difference about the number and nomenclature of the vyavahārapadas among Manu and other writers of smṛtis The following table will give some idea of the divergence as to nomenclature and the sequence in which they are treated of. All do not mention them in the same order as in Manu VIII. 4-7. For example, the order in Yāj is ṛṇādāna, upanidhi, dāyavibhāga, sīmā-vivāda, svāmīpālavivāda, asvāmī- vikraya &c. Yāj. does not enumerate all of them in one place as Manu and Nārada do. MANU 1 rnādāna 2 niksepa 3 asvāmivikraya 4 sambhūya-samut-thāna 5 dattasyānapākarma 6 vetanādāna 7 saṁvidvyatikrama 8 krayavikrayānusaya 9 svāmipālavivāda 10 simāvivāda 11 vākpārusya 12 dandapārusya 13 steya 14 sāhasa 15 strīsangrahana 16 strīpundharma 17 vibhāga 18 dyūtasamāhvaya

Kauṭilya 5 rnādāna 6 upanidhi 11 asvāmivikraya 8 sambhūya-samut-thāna 10 dattasyānapākarma (in III. 13 bare mention) 7 karmakarakalpa 4 samayasyaNāpā-karma 9 vikritakritānusaya 0 3 simāvivāda 13 vākpārusya 14 dandapārusya 0 12 sāhasa sangrahana (IV. 12) 1 (no name but subject dealt with in III. 2-4) 2 dāyavibhāga 15 dyūtasamāhvaya 0 prakirnaka

Yājñavalkya (acc. to Mit.) 1 rnādāna 2 upanidhi 6 asvāmivikraya 17 sambhūya-samut-thāna 7 dattāpradānika 11 vetanādāna 10 saṁvid-vyatikrama 8 kritānusaya 16 vikrīyāsampradāna 5 svāmipālavivāda 4 simāvivāda 13 vākpārusya 14 dandapārusya 18 steya 15 sāhasa 19 strīsangrahana 0 3 dāyavibhāga 12 dyūtasamāhvaya 9 abhyupetyāśuśrūśā 20 prakirnaka

NĀRADA 1 rnādāna 2 niksepa 7 asvāmivikraya 3 sambhūyasamut-thāna 4 dattāpradānika 6 vetanasyānapā-karma 10 samayasYānapā-karma 9 kritānusaya 8 vikrīyāsampradāna 0 11 ksetrajāvivāda 15 vākpārusya 16 dandapārusya 0 12 steyā 14 sāhasa 0 12 strīpuṁsayoga 13 dāyabhāga 17 dyūtasamāhvaya 5 abhyupetyāśuśrūśā 18 prakirnaka

Bṛhaspati (in Sṃ C. II. p. 9) 1 kusīda 2 nidhi 8 asvāmivikraya 4 sambhūyotthāna 3 adeyādya 5 bhṛtyādāna 10 samayātikrama 9 krayavikrayānu-śaya 0 7 bhūvāda 15 vākpārusya 16 dandapārusya 12 steya 17 vadha 18 strīsaṁgraha 11 strīpuṁsayoga 13 dāyabhāga 14 aksadevana 6 āśuśrūśā 19 prakirnaka It will be noticed that Yāj omits the duties of husband and wife from the 18 topics of vyavahāra as he had already dealt with them in his section on ācāra, adds abhyupetyāśuśrūṣā and prakīrṇaka (miscellaneous wrongs) and splits krayavikrayānuśaya into two and thus gives 20 topicṣ Nārada (I. 16-19) has the same 15 topics as those of Manu (in some cases under slightly different names), omits svāmīpālavivāda, steya and strīsangrahana, adds abhyupetyāśuśrūṣā and another topic viz prakīrṇaka and splits krayavikrayānuśaya into two, viz kṛtānusaya and vikrīyāsampradāna. He includes steya under sāhasa (sāhasa verse 21) and also in what is an appendix. Bṛhaspati as quoted in the Smṛti-candrikā (vyavahāra p 9) names the 18 vyavahārapadas and adds prakīrṇaka. Kauṭilya also adds prakīrṇaka and omits 'steya' under his dharmasthīya section, though he deals with theft elsewhere (as in IV. 8 and 11). It is not to be supposed that the 18 topics were first started by the Manusmṛti. Gaut. XII. 1 mentions vākpāruṣya and daṇḍapāruṣya, treats of some of the topics without specifying the technical names e. g. he refers to the subjects of sangrahana (in XII 2-3), of theft (XII 12-13), of svāmīpālavivāda (in XII 16 ff), of ṛṇādāna (in XII 26-33), of nidhi (in XII 39), of dāyavibhāga (in XXVIII). Similarly the Āp Dh. S speaks in scattered places of some of the topics of vyavahāra such as murder (1. e sāhasa) in I. 9. 24, of adultery in I. 9. 25. 1-2 and I. 10. 28 15-20, II. 10 26 18 ff, theft in I. 9. 25 4-11, dāyavibhāga in II. 6 14, vākpāruṣya in II. 10. 27 14. Vaṣ also mentions the word dāyavibhāga (in XVII 40) and sets out rules about it and about means of proof (XVI 13-15), about ṛṇādāna (XVI 31), about the twelve kinds of sons (XVII. 12-39). The Baud Dh S. (II 2 8) employs the word dāyavibhāga and gives several rules on that subject. Thus some at least out of the eighteen vyavahārapadas (such as vākpāruṣya, daṇḍapāruṣya, dāyabhāga, steya) were distinctly recognized centuries before the present Manusmṛti was composeḍ Someśvara in Mānasollāsa (II. 20 verses 1265-1273) enumerates 22 vyavahārapadas, by splitting dattasyānapākarma into two as datta and dattāpāharaka, adds svāmībhṛtyavivāda after svāmīpālavivāda, counts krayavikrayānuśaya as two and dyūtasamāhvaya as two distinct topicṣ

The definition of vyavahārapada in Yāj II 5 (=Śukra IV. 5, 68) viz ‘if a person informs or complains to the king’ (āvedayaḥ ced rājñe) conveys that vyavahārapada means and includes only those disputes that are started or brought before ##III ] the Court at the instance of the partieṣ Manu VIII. 43 pres- cribes that neither the king nor his officers should start a dispute (i. e. a legal proceeding), nor should he sit silent upon (hush up) a matter which has been brought before him by another (i. e. by a party). Gaut. XIII. 27 lays down that a party should humbly approach a judge with his complaint. Kātyāyana (27) states: 'The king⁸ should not, through influence or through greed of money, take upon himself the disputes of men, when they do not themselves want to contend (in a court)'. Mānasollāsa II. 20 verse 1274 and Śukra IV. 5. 69 say the same. There must have always been several matters, of which nobody might complain and which the king might have to look into suo motu. Manu after dealing with the 18 vyavahārapadas (in VIII. 1 to IX. 251) requires the king (in IX. 252–253) to make efforts to destroy kantakas (thorns, harmful persons) and dilates upon many aspects of his activities in this respect. Nārada relegates all matters in which the king took action suo motu to a separate topic, prakīrņaka, about which he says ‘under prakīrņaka are comprised lawsuits depending on the king (i. e. on the king’s own action) such as transgressions of the king’s commandments and obedience to his injunctions, grants of towns, dissensions among the constituent elements (such as ministers) of the State, the duties and breaches thereof among heretics, followers of the veda, corporations (of merchants) and groups, dispute between father and son, neglect of prescribed penances, abstraction of gifts made to worthy persons, the wrath of hermits, sinful confusion of castes and the rules regarding their maintenance and (in short) whatever (matter) has been omitted in the preceding (vyavahārapadas)—these are treated under prakīrņaka.’⁹ Bṛhaspati defines prakīrņaka in the same way as Nārada. Kauṭilya deals with the vyavahāra- padas in his Dharmasthīya (III) section and in the Kaṇṭaka- śodhana section (IV) speaks of matters that are similarly dealt with by officers called pradestṛs (who correspond to coroners and police magistrates of modern times), while matters falling under the dharmasthīya section (viz. the vyavahārapadas) were disposed off by judges (called dharmasthas). Kaṇṭaka means in Kauṭilya as in Manu IX. 252 ‘harmful persons’. The chief matters that fell within the purview of the kaṇṭakasodhana (removal or punishment of harmful persons) officers or courts were : Artisans like blacksmiths and carpenters were generally to work in guilds and receive from people materials for working them up; if they caused unreasonable delay in handing back finished articles, they were to receive one-fourth less than the proper wages and were to be fined twice the amount of wageṣ similar provisions are made for loss of wages and fines for weavers who do not increase the weight of cloth (cotton, linen, silk or woollen) woven up to the usual standard : washermen were to wash clothes on wooden planks or smooth stones, but if they washed them elsewhere, they were to pay compensation for loss caused and a fine of 6 paṇas; they were to be fined twelve paṇas for the sale, pledge or hiring out of other's clothes; they were also to be fined for keeping clothes with them beyond the time ordinarily required, for washing the best garments, garments of middling quality and inferior garments the wages were respectively one paṇa, ¾ and ¼; trust- worthy persons and experts were to decide disputes about colour and wages ; similar rules apply to tailors ; goldsmiths, who III ] without informing (government officers) purchased from un- clean hands (i e from menial servants or slaves) without changing the form of the article or after changing the form, or purchased from a thief were to be fined respectively 12, 24 or 48 paṇas; for stealing one (gold) māsaka (one-sixteenth of a suvarṇa) from off a suvarṇa, the gold-smith was to be fined two hundred paṇas and for stealing one māsaka out of a silver dhāraṇa there was a fine of twelve paṇas; fines are provided for loss of weight (beyond the recognised standard) in the case of working up copper, lead, brass, bell-metal, tin into vessels and articles; for manufacturing a counterfeit coin, for accepting it or passing it off to another the fine was a thousand paṇas and for entering a counterfeit coin in the royal treasury the punishment was death; a physician, who undertook the medical treatment of a patient without informing (government officers) of the dangerous nature of the disease, was to be punished with the first amercement if the patient died and with the middling fine if the patient died through the carelessness of the physician and if the patient suffered some vital injury, the matter was to be dealt with as assault (daṇḍapāruṣya); musicians and actors shall stay in one place during the rainy season and shall avoid taking excessive gifts or indulging in excessive praise of one patron; for violating this rule the fine was twelve paṇaṣ The same rules apply to those who show dumb plays and to other mendi- cants, the latter receiving as many lashes as the fine imposed in similar cases on otherṣ In IV. 2 Kauṭilya prescribes fines against merchants that use false measures, weights and balances; that sell timber, iron, jewels, ropes, clothes mis- representing them as superior when they are inferior; that conspire to prevent the sale of merchandise; that cause adultera- tion of grains, oils, salt, medicines &c.; that raise the prices beyond those fixed by the superintendent of commerce for local commodities and for foreign produce. In IV. 3 Kaut. provides for measures against such calamities as fire, floods, pestilen- tial diseases, famine, rats, tigers, serpents and prescribes a fine of twelve paṇas for catching or injuring cats and mongooses employed to destroy ratṣ In IV. 4 Kaut. prescribes the measures that the officer called samāhartṛ has to take to protect the subjects against those who prey upon the people secretly by employing foul meanṣ He has to employ spies under various disguises to find out the honesty or corruption of officers in the villages, of superintendents, of judges, of magistrates and witnesses and the punishment in these cases is generally banishment Kauṭilya IV, 5 deals with the detection of young men inclined to robbery and adultery by the employment of spies and agents provocateurs in the guise of ascetics and persons reputed to possess miraculous powerṣ The Kauṭilya IV. 6 and 7 respectively describe the seizure of criminals on suspicion or in the very act itself and examination in cases of sudden death. Kaut IV. 8 speaks of questioning in the presence of the wronged party of the witnesses of the accused, whether they are his relatives or total strangers, as regards the country, the caste, the family, the name, occupation, property, friends and residence of the accused and of the application of torture to the accused to elicit an admission of guilt. It is said that torture is to be applied only in the case of those whose guilt is believed to be established prima facie (āptadosam karma kārayet), that torture is not to be employed when the accused is guilty of a minor offence, is under age, old or diseased, is under the influence of intoxicants, or is a lunatic, or is overwhelmed by hunger or thirst or fatigue due to a journey, or has eaten to excess or is suffering from indigestion or is weak, nor is it to be employed in the case of a pregnant woman or a woman who was delivered of a child within a month; and in the case of other women only half the torture prescribed for males or only the asking of questions is to be employeḍ Learned brāhmaṇas and ascetics (when accused) are to be subjected to espionage only. Those who violate these rules or incite others to do so and those who are guilty of causing the death of an accused, by torture are to be punished with the highest amercement. Four kinds of torture were employed in the case of complaints about wrongs viz. six dandas, seven whippings, two kinds of suspension, and (fourthly) water-tube (i e injecting salt water in the nose from a tube) ¹¹ In this chapter Kaut states that one who charges an innocent man with being a thief or who conceals a thief is to be punished like a thief and that even one who is not a thief may for fear of torture admit that he is a thief, as Māndavya diḍ Kaut in IV. 9 prescribes that the sumāhartṛ and pradeṣṭṛs should exercise control over all superintendents of the various State departments and their subordinates, that those who steal or seize valuable articles or jewels from State mines or manufactories should be simply sentenced to death, prescribes various fines and punishments for stealing or re- moving by force articles of different prices from the State granaries and store-houses, provides punishment for judges that threaten, browbeat, send out or unjustly silence or abuse litigants or that do not ask proper questions or ask improper questions, that cause unnecessary delay, unjustly rehear causes that have been heard or disposed of, and provides heavy punish- ments for releasing persons jailed or for rape on a woman in a lock-up. Kaut. IV.10 prescribes alternative punishments of fines in lieu of the cutting off of fingers or mutilation of limbs for several offences such as theft or assault, abuse and defamation or showing contempt to the king by riding his horse or other conveyance or fabricating royal orders, prescribes death for selling human flesh, simple death or highest amercement for stealing images of gods or animals, for abducting human beings or for wrongfully seizing fields, houses, gold, gold coins, jewels and cropṣ Death with or without torture is provided for in Kaut. IV, 11 for murdering a man in a quarrel (but when the wounded man dies a fortnight or a month after the quarrel, highest fine or fine of five hundred panas and the expenses of medical treatment); different kinds of punishments are provided for wounding with a weapon, impalement for causing violent death of men and women, burning alive for those who aim at securing the kingdom or force entrance into the royal harem or incite wild tribes or enemies or instigate disaffection in the capital or country or army, drowning (or solitary confinement in a dark room, acc. to another reading) for a brāhmaṇa offender of this sort, cutting of tongue for insulting or abuse of parents or a teacher or an ascetic, drowning for one destroying the dam of a tank or for a poisoner or for a woman murdering a husband or child or her elders or administers poison or sets fire. Kaut. adds that the punishment of death with torture has been prescribed by ancient smṛti-writers, but that it is proper to order simple death in cases of offences in which no cruelty enterṣ Kaut. IV 12 starts by declaring that no man shall have sexual intercourse with a woman (not his wife) against her will, prescribes different punishments for forcible sexual intercourse with an immature girl or a girl that has attained maturity, of the same caste, or of a different caste, provides that for inter- course with a willing maiden the fine will be 54 panas for the man and 27 for the maiden, further provides that it is no offence for a man of the same caste to have intercourse with a maiden who has not been got married for three years after the appearance of menses, provides fines for deceitfulness in substitut- ing one girl at marriage while showing another before, provides that if a woman whose husband is gone abroad commits adultery a relative or servant of the husband may keep her under restraint and that if the husband on his return forgives the woman her paramour may not be proceeded against, but if he does not condone, the nose and ears of the woman may be cut off and the paramour should be sentenced to death. Kaut. IV. 13 provides punishment for brāhmaṇas eating or drinking what is forbidden to them and varying fines for administering forbidden food or drink to members of the four varņas, provides fines for house-trespass and lurking house-tres- pass by night, provides punishments for witchcraft, provides burning alive in a vessel for adultery with the queen and other punishments for adultery with women of the several castes, whether guarded or unguarded, prescribes a fine of 24 paṇas for adultery with a nun

The above is a meagre summary of Kauṭilya's section on kaṇṭakaśodhana. Kauṭilya is encyclopaedic on this subject as on several otherṣ The number of offences dealt with by him is very large and his treatment in some respects compares favourably with such modern criminal codes as the Indian Penal Code. Many of the provisions contained in Kaut. IV are found in Yāj. (II. 273-304), in Nārada (in prakirṇaka and elsewhere) and also in Manu (e g. VIII. 365-368 about rape or adultery, VIII. 396-97 about washermen and weavers, IX. 225-226 about musicians and dancers, IX. 231-232, IX. 261-267 ). Why Kaut. treats of several offences under kaṇṭakaśodhana and not under the dharmasthīya section, it is somewhat difficult to say. It is probable that he included under dharmasthīya only those complaints or actions that were fought out between the parties, even though many of the wrongs complained of under vākpārusya, daṇḍa- pārusya, saṅgrahana and steya were criminal and the same as those treated of in the kaṇṭakaśodhana In wrongs dealt with in the kaṇṭakaśodhana section it was the king or king's officers who themselves brought up the offenders for punishment and the offences were viewed not as mere private matters, but as matters in which the State was concerned for the eradication of crime in general. Kauṭilya in III. 20 speaks of prakīrņaka but therein he seems to include some miscellaneous matters like non-return of borrowed articles or deposits (at the proper time and place), evading payment of ferry tax under the pretence of being a brāhmaṇa, connection with a public woman kept by another, misappropriating revenue collected as agent for a householder, a cāṇḍāla's touching an Ārya woman, invit- ing for dinner in honour of Gods and Manes Buddhist or Ājīvaka or śūdra mendicants, abandonment of parents, child, wife or husband, brother or sister, teacher or pupil ( when not guilty of a grave sin), wrongful confinement of a person &c. Kauṭilya does not apparently include under prakirnaka all matters in which the king acts suo motu as Nār., Br. and Kāt do but includes these latter under kantakaśodhana. He, however, states here and there (IV. 1 and 13) that the matters dealt with under kantakaśodhana are quite analogous to those under such titles as dandapārusya treated of under the dharmasthiya sectioṇ For example, in IV. 1. he says that if a physician through negligence causes loss of a vital part to a patient then the matter may be treated as dandapārusya.¹³ So Kauṭilya probably represents a much earlier stage of judicial administra- tion than Nār. or Br, who included under prakirnaka all matters in which the king acted of his own motion (i. e all that falls under kantakaśodhana in Kaut)

The enumeration of vyavahārapadas is very ancient and authoritative, but there is hardly any scientific principle of classification underlying theṃ A writer called Nibandha- nakāra quoted in the Sarasvatīvilāsa¹⁴ (p. 51) holds that in all the vyavahārapadas from rnādāna to dāyavibhāga the relief claimed is something to be given or rendered (deya) by one party to the other, while in vākpārusya, dandapārusya, sāhasa, gambling and betting the principal relief is in the form of danda (punishment). Here there is a glimmering of the distinction between civil and criminal litigatioṇ Two deep-seated principles in the administration of law and justice everywhere are 'fulfil your promises' and 'cause injury (himsā) to no one'. It is therefore that we find Bṛhaspati stating that lawsuits are of two kinds according as they originate in (demands about) wealth or in injuries Yāj. II 23 speaks of arthavrdda (civil dispute) and so made a distinction between civil and criminal disputes Lawsuits¹⁵ originating in wealth are divided into fourteen sorts and those originating in injuries are of four sorts These last are vākpārusya (defamation and abuse), dandapārusya (assault and battery), sāhasa (murder and other forms of violence) and strīsaṅgraha (adultery). Here there is a clear distinction made between civil disputes (arthamūla or dhanamūla) and criminal ones (hiṁsā-mūla). Kāt. also says that disputes have their source in two viz, not rendering what should be given and injury (hiṁsā). Though in this way a distinction was made between civil and criminal disputes among the 18 titles of law, it appears that the set of rules and the procedure in both were the same (except as to the time allowed for reply, as to the qualifica- tions of witnesses and as to proxies), the same courts tried both kinds of disputes and not as in modern times (when civil disputes are tried in one class of courts and criminal complaints in another and when the procedure also in both differs a great deal) There were not two sets of courts in ancient India as there were in England before the fusion of Law and Equity, but all courts in ancient and medieval India were required to administer the law of the texts tempered by common sense and reason as laid down by Br.: ‘a decision should not be given by merely relying on the text of the śāstra; when consideration of a matter is divorced from reason and common sense loss of dharma results’ (q by Aparārka p. 599).

Nār. (I. 8-29), Br., Kāt, the Agnipurāṇa (253. 1-12 which reproduce almost verbatim the verses of Nār.) and others predicate several things about vyavahāra, such as that it is dviphala (has two results) and so oṇ All these are brought together here below for convenience. Vyavahāra is:— Catuṣpād—having four feet, viz. dharma, ¹⁶ vyavahāra, caritra, rājaśāsana, acc. to Nār (I. 10); while acc. to Yaj II. 8 and Br. they are the plaint, the reply, the proof (kriyā) and decision (nirnaya) or acc. to Kāt. 31 (q. by Aparārka p 616) plaint, reply, pratyākalita¹⁷ and kriyā

Dharma and the other three are really the four feet of nirnaya (final decision), which is one of the four stages of a law-suit (vyavahāra) and so only in a secondary or far-fetched sense they are the four pādas of vyavahāra Each of these four is said to be of two kindṣ Vide Sm C. II. pp 10-11, Par. M III. pp. 198-199, V. P. pp. 87-88 where the verses of Br are set out and fully explained A decision is said to be arrived at according to dharma when the wrong-doer admits his guilt or wrong-doing and the real owner secures his wealth or the relief due to him without having to undergo the trouble of a protracted trial by means of witnesses, documents &c Similarly a decision to be arrived at by ordeals is said to be one by dharma Dharma and satya are often identified (vide note 125 above) and here the wrong-doer tells the truth and the decision is therefore said to be by dharma. When a litigation is fought out in Court by citing witnesses, the decision is said to be by vyavahāra 'Witnesses' are mentioned only by way of illustration (and imply documents, possession and other means of proof) When a defendant is guilty of not giving a straight reply or when his reply is tainted with faults and so is unacceptable and a decision is given against him on that ground alone it is still a decision by vyavahāra Caritra means 'the usages of a country, village or family' (deśasthitiḥ pūrvakṛtā caritram samudāhṛtam—Vyāsa q. in Sm C. II. p 11 and Vy Nir p 138) This seems to be the sense of 'caritra' in 'phalakavāre caritratoti' occurring in Nasik Inscription No 12 in E I. vol VIII p 82. In prakirṇaka 24 Nār seems to give the same sense 'stḥityartham pṛthivīpālāis-caritravissayāḥ kṛtāḥ'. Caritra also means 'anumāna' (posses-sion and presumptions). 'Anumāmena nirmtam caritramiti' kathyate' —says Br. quoted in Vy Nirnaya p. 139 and Par. M. III. p. 198. Usages are the means of decision in certain cases apart from the question whether they are supported by the smṛtis or III] not. ‘Caritram pustakarane’ means that such usages are valid means of decision if they have been written down or recorded by the king, while ‘caritram tu svikarane’ (the reading in Par. M ) means ‘usages become the rule of decision when they are accepted as valid by the people and by the courts’. When a king issues in a matter of dispute an order which is not opposed to smṛtis or local usages and which is thought out as the most appropriate one by the king’s intellect or which is issued to decide a matter when the authorities on each of two sides are equally strong, it is a decision by royal command Br (in Par. M III p. 148 ) and Kat (verses 35–38 q in Sm C II p. 10, Par. M. III pp. 16–17, V P p 7 ) explain the above four. Bṛhaspati gives two meanings of caritra: (1)what is decided by inference; (2) the usages of a country When it is said that each later one of the four stultifies each preceding one, the idea is not that in all cases it is so, but that that is so only in some caseṣ Vide Kat. (43 q by V. P. p 90 ) which makes this clear. Some examples may be given If one litigant says that he would prove his case by an ordeal, while the other says that he will prove his contention by human means (documents or witnesses &c. ), then the trial by ordeal is not to be resorted to but the hearing of the case is to proceed in the ordinary way. Vide Kat 218 (q. by Mit. on Yaj. II 22 ) for this rule. Here dharma is set aside in favour of vyavahāra. Another example is given in the Par M. III. p. 18. A person belonging to one of the four varnas commits a seditious act (rājadroha) and through timidity admits his guilt (this is satya), but the witnesses (relying on Manu X. 130 that where the punishment would be death, a witness may tell a lie ) deny that he was guilty of the act and he is let off. Here dharma is set aside in favour of vyavahāra (trial based on the depositions of witnesses). Vide Sṃ C. (II. p. 11) for another similar example. In the country of Kerala visiting a prostitute was not condemned by custom So even though it is established by witnesses that a person in Kerala did so, the local king may not punish him with a fine Or suppose a person is charged with the offence of adultery with the wife of an abhirā and this fact is established by witnesseṣ Yet the man charged may show that among the abhiras there is a usage (written down in the census records of the king) that adultery with an abhīrā woman is not punish- able. In such cases caritra (usage) annuls the (ordinary) vyavahāra. But suppose that in such cases the king, in order to improve the morals of a section of his subjects, issues a proclamation that from the date of the proclamation one who is guilty of adultery with an ābhira woman will be punished, then in that case usage will be set aside by royal command, which will then be the rule of decisioṇ Similarly where there are no witnesses nor documents nor possession and no room for ordeal and there are no texts and local usages it is the king who has to decide as best as he caṇ Vide Pitāmaha q in Sm C (II p 28) Kāt (verses 39–43 q in V. P p 89) describes how and when each later one sets aside each prior one.

Catuḥsthāna—having four bases viz. satya, witnesses, pustakarana and rājasāsana.

Catuḥsādhana—having four means viz. sāma, dāna, bheda and daṇḍa.

Catu lula --benefitting the four (the four varṇas and four āśramas).

Caturvyāpan—that envelopes or reaches four viz. the dis- putants, witnesses, the sabhyas and the king.

Catuśkārn—that brings about four results viz. dharma (justice ), gain, renown, love or regard of the people.

Aṣṭānga—it has eight limbs or members viz. the king, his good officer (chief judge ), sabhyas (puṣṇe judges ), śāstra (law books ), accountant, scribe, gold, fire and water.

Aṣṭādaśupāda—has eighteen titles (viz. rnādana and others enumerated above).

Śuśākha—having a hundred brancheṣ This is approximate. Nār. (I. 20–25) states that the 18 titles have 132 sub-heads (rnādana 25, upanidhi 6, sambhūyasamutthāna 3, dattā- pradānika 4, aśuśrūṣā 9, vetana 4, asvāmivikraya 2, vikriyā- dāna 1, kṛtānusaya 4, samayasyaṇāpakarma 1, kṣetravāda 12, strīpuṁsayoga 20, dāyabhāga 19, sāhasa 12, vākpāruṣya and daṇḍapāruṣya 3, dyūtasamāhvaya 1, prakīrṇaka 6).

Tryom—having three springs or motives viz. kāma (sexual desire), krodha (hot temper), lobha (greed).

Duyābhyoga—founded on two kinds of complaint viz. on suspicion or on fact. Nār I 27 says that a complaint on suspicion may be made against those who associate with men of evil repute (such as thieves, gamblers and dissolute persons) or it may be made on the ground that a certain person is really the thief because the thing stolen is found with him ( this is tattvābhiyoga ). This latter may take two forms i e. the grievance of the plaintiff may be negative ( e. g. the defendant took or borrowed a debt or article and does not return it ) or positive e g. the defendant has dispossessed the plaintiff of land ).¹⁸ Vide Mit on Yāj. II. 5.

Drdvāra—having two openings i. e. it is based on the statements in the plaint and those in the reply.

Durgati—having two issues, that is, the decision may be founded on truth or on error.

Drpādā—having two aspects, viz. relating to wealth and so civil ( dhanamūla ), and relating to injury and so criminal ( himsāmūla ) This is acc to Kāt. 29.

Durutthāna—having two springs or sourceṣ It is the same as above. Hārīta and Kāt. 30 mention this

Duskandha—having two trunks viz. dharmaśāstra and arthaśāstra ( acc to Kāt. 32 ).

Drphala—having two results, victory or failure ( Kāt 32 ).

Ekāmula—Hārīta and Kāt mention thiṣ It means ‘having only one ( viz. what is to be established ) as its root’.

Sapana and apanā—where both parties to the litigation or one of the parties stakes ( either through pride or anger or belief in the truth of his case ) a certain sum of money to be paid by him in case of his defeat, that is called sapanā law-suit ( Yāj. II. 18 ); in this case the defeated party will pay to the king the usual fine for a defeated party and also the sum staked by him and will deliver to the successful party what is due to hiṃ Vide also Visnudharmottara III. 324. 44 A lawsuit may also be apanā ( without a stake being declared ). Nār. ( I. 4 ) employs the words sottara and anuttara for these two

The Sṃ C. ( II. pp 27-28), Par. M. ( III. pp 42-45), Sarasvati- vilāsa pp. 73-74, V P. pp 36-38, state that, according to Pita- maha, the king may take cognizance of his own motion without the complaints of private persons of certain matters called aparādhas, padas and chalas and these works set out the lists of ten aparādhas, 22 padas and 50 chalas¹⁹. The king may himself come to know about these or these matters may be brought to his notice by an officer called sūcaka or a private man called stobhaka, defined acc. to Kāt. (33-34) as follows—²⁰ that man is a sūcaka who is appointed by the king himself for finding out the wrong-doings of people and who on coming to know of them conveys them to the king; that man is a stobhaka who with a sole eye to money and without being urged by the king informs the king first of actions (among the people) that are condemned by the śāstras'. Therefore a stobhaka is a private informant for money. The ten aparādhas, acc. to Nār. are dis-obedience of the king's order, murder of a woman, confusion of varņas, adultery, theft, pregnancy from one not the husband, abuse and defamation, obscenity, assault (dandapārusya), abortion²¹. They were called aparādhas because they were met with fine. It will be noticed that some of these come under several vyavahārapadas and some like 'varṇasańkara' are included in prakīrṇaka by Nārada (v 4). The king could by his own action investigate these even if no private complaint be lodgeḍ Samvarta (quoted by the Sṃ C. II p 28, Par M. III. pp 44–45) gives another list which differs in some respects from the above. In the Nālañdā copperplate of Devapāladeva (E I. vol XVII p 310, p 321) an officer called 'dasāparādhika' is mentioneḍ In many grants from the 7th century onwards among the taxes remitted to the donees we often meet the expression 'together with the ten aparādhas' (sadāśāparādhah', in Valabhi grant of Dhruvasena III dated samvat 334 i. e. 653-4 A.D, E L. vol. I p. 85, at p 88, E.I. XVII p 310 at p 321, in Gupta Inṣ No 39 p 179 of 766-767 A. D), or 'daśāparādhisamastotpattisahito dattah' (in E I vol VII p. 26, p 40 of śake 852), or III] 'sadandađāśāparādhab' (E. L vol. III p. 53 at p. 56, Torkhede plate of Govinda in śake 735, and E. L vol. III p. 265, 266, the Rajor inscription of Mathanadeva dated Vikrama samvat 1016). It is not correct to hold that the words refer to the right of the donee to be exempt from guilt arising from the commission of some traditional offences or that authority was conferred by the grant on the donee to deal with offenders committing the ten aparādhas and to recover the fines imposed by themselves (as suggested in J B O R S for 1916 p. 53n). No king would ever think of exempting donees in pious gifts or the villages in those grants from the results of such grave aparādhas as the murder of a woman, adultery, theft and abortion, nor is it possible to hold that a king authorised a private individual or individuals to exercise judicial power in such crimes as murder when (as we shall see later on) the power of dealing with sāhasa was not conferred on śreni or gana tribunalṣ The real meaning appears to be that the fines levied by him for the commission of the aparādhas in the villages granted would be made over to the donees as part of the gift, when recovered by the king. The 22 vadas were called padas of the king to distinguish them from the vyavahārapadaṣ According to Pitāmaha²² they are: ripping open an animal's body (with a sharp weapon), destruction of treasure trove, making a breach in an embankment or thorny hedge, grazing cattle over the field of another, destruction of a public garden, poisoning, high treason, unauthorised break-ing of the royal seal, divulging the secret line of policy of the king, releasing from jail a prisoner, appropriation of the taxes or fines to be levied by the king (these are two), appropriating gifts (made by the king) or the utseka (? utsarga, dedication to the public), preventing the proclama- tion ( of royal orders ) by beat of drum from being heard, receiving property from a person who is not the owner, receiving articles that are enjoyed by the king (without his permission), causing destruction ( or loss ) of any one of the ( seven ) elements ( of the State ). The fifty _chalas_ were mostly breaches of etiquette before the eyes or in the presence of the king. According to Pītamaha they are : obstructing the road, raising the hand threateningly, leaping over a fort-wall ( without permission or reason ), destroying a cistern, destroying a temple, filling up a ditch ( dug round a fort), divulging the weak points of the king ( to the enemy ), unauthorized entrance into the harem or royal chamber or the treasury or the royal kitchen (these are four), prying when the king is taking his meals, voiding ordure or urinating or blowing the nose or passing wind in the presence of the king (these are four ), to sit before the king on haunches ( _paryankāsana_ ), to occupy the foremost seat in the king's presence, to enter royal presence in a dress more resplendent than the king's or supported by another or by the wrong-doer or at an improper time (these are four ), to lie down on the bed or seat of the king or to put on his shoes ( these are three ), to go near the king ( uncalled ) when the latter is lying down on his bed, to serve the king's enemies, to occupy a seat that is not offered, to use gold in the dress or ornaments (these are two), to take _tāmbūla_ (from the king's betel box ) and chewing it ( this is one ), to speak loudly without being asked ( by the king ), to run down the king, to wear only one garment, to appear before the king with oil on the hair, to untie the hair (before him), to cover one's face, to have a body painted with figures, to wear a garland, to shake one's garments, to cover the head, to be bent on finding the weak points of the king, to be thick with evil men ( or to touch the king ), to have dishevelled hair, pointing out the nose, the ears and the eyes (these are three ), to pick the teeth, to cleanse the ear or the nose ( these are two ). As the list of _chalas_ is a very long one the verses are not quoted below, but are given in the Appendix (note 342 a). Śukra (IV. 5. 73-88 ) quotes all the verses from Nārada and Pītamaha on the _aparādhas_, _padas_ and _chalas_ and in III. 6 also gives a list of ten sins, which is different from that of the _aparādhas_.

In modern works on Jurisprudence various classifications of Law are stateḍ For example, Dr. E. Jenks in ‘New Juris- prudence’ (1933) furnishes at the end of his work a very elaborate classification which is set out in the note below.³⁴³ Ancient systems cannot be expected to present such a classificatioṇ Ancient Hindu smṛtis were content, as shown above, to

Law Public Normal persons Const. Law Sub. Pro. Admiṇ Law Sub. Pro. Central Local Abnormal persons Induṣ Sub. Pro. Crimi Sub. Pro. Mil. Sub. Pro. Private in Public Law Family Law Law of Property Obligations Succession Conflict of Laws Substantive normal persons Family Law Husband & Wife Parent & Child Law of Property immovable chattels incorporeal Law of obligations Succession testamentary intestate Civil Contract Quasi-contract Tort abnormal persons Procedural Commercial Contract Quasi-contract Tort divide the vyavahārapadas into civil and criminal. They more or less deal with most of the subjects brought out in modern classifications but not in an orderly manner. They also divide laws into substantive and adjective or procedural. The vyava-hārapadas correspond to the former and the rules about procedure, the appointment of Judges and the constitution of courts, evidence and limitation are adjective law. Some of these are dealt with in the commentaries and digests under a section called vyavahāramātrkā (the elements of judicial proce-dure) and the rules of evidence are stated in Yāj, Nār. and others under the vyavahārapada rnādāna once alone. It would be more convenient to deal with adjective law first. That law is now of antiquarian or academic interest only and will there-fore be treated somewhat briefly. The smṛtis lay down a high level of judicial procedure, but the procedure must have been modified to suit the requirements of different times and the resources and inclinations of different kingṣ Some of the vyavahārapadas viz. rnādāna (recovery of debt), stripumsayoga and dāyabhāga (partition of heritage) are of great practical importance even now, as all Hindus are governed in matters of partition, inheritance, debts, marriage and sonship by the rules of Hindu law gathered from the smṛtis and digests as modified by legislative enactments and judicial decisionṣ For descrip-tion of Judicial administration in the Buddhist texts and times, vide Fiok pp 107, 111-112 ( which show that the administration of Justice in Vesāli, the capital of the Licchavis, was a complicated affair, one of the courts being that of the atthakulakas i. e. of eight heads of families ), Jayaswal's 'Hindu Polity', part II pp. 156-157, Hiouen Thsang's account in Beal's B.R. W. W. Vol. I pp 84-85; and Bombay Gazetteer, Vol. 24 pp. 266-267 (for the administration of Justice under the Marathas ).

Justice was to be primarily dispensed by the king. He was an original court as well as an appellate tribunal. smṛtis and digests insist that the king cannot dispense justice by him-self alone, but must do so with the help and guidance of otherṣ Manu VIII 1-2 and Yāj. II. 1 provide that the king wearing no gaudy dress or ornaments is to enter the sabhā (the Hall of Justice) for looking into the causes of litigants, accompanied by learned brāhmaṇas and ministers proficient in statecraft, is to be free from hot temper and greed and decide according to the law laid down in dharmaśāstraṣ Kāt. (55-56 quoted in V. M. p. 278, Mit. on Yāj. II. 2) says the same thing and adds that a king who examines disputes in the presence of the Judge, the ministers, learned brāhmaṇas, the purohita and the sabhyas attains heaveṇ Vide Śukra IV. 5. 5 to the same effect (taking half verses from Yaj. and Kāt.). The king was not to decide by himself but was to follow the advice of his judge, though he even when he took advice was the king'ṣ Vide Śukra IV. 5.6 (naikaḥ paśyecca kāryāṇi). Nār. I. 35 says that the king has to abide by the view of the judge (prāḍvivā- kamate sthitaḥ). This sentiment that it is not safe for a single man, however clever he may be, to undertake to decide a dispute was so ingrained among all people that Kālidāsa gives expres- sion to it in the Mālavikāgnimitra (Act I) when he pens the sentence 'sarvajñāsyāpyekākino nirṇayābhyupagamo doṣāya'. In Raghuvamśa 17.39, Kālidāsa states that king Atithi always looked into the causes of people himself with the help of judges (dharmastha)²³. Pitamaha²⁴ states that a person even if he knows the rules (of dharma) should not give a decision single- handeḍ Justice was to be dispensed openly in the court and not secretly. Śukra (IV. 5. 6–7) states²⁵ that neither the king nor the sabhyas were to hear a cause in secret and that there were five reasons that led to the charge of partiality in judges viz. hot temper, greed, threats, enmity and hearing disputes in private. Judicial action is divisible into two provinces, viz. that of law and that of fact. The latter is a field in which it is impossible to lay down rules for determinatioṇ On points of facts there was a vast scope for the king's or judge's discretioṇ And therefore the texts contented themselves by saying that the king or judge should keep an open or impartial mind, should be free from hot temper or greed, should hear causes under the glare of public view and should not decide at his own will alone but with the help of learned brāhmaṇas and sabhyaṣ As regards points of law the king or judge is required to decide according to the rules of dharmaśāstra (Manu VIII 3, Yāj II. 1, Nār. I 37, Sukra IV. 5. 11) and where there are no texts the king should decide in accordance with the re- cognized custom of the country. Kāt solemnly warns²⁶ the king against legislating or deciding according to his own will in the face of the texts: 'If a king decides (a case) by his own fiat where there is a text (of the śāstra applicable to it) it leads him away from heaven, it causes ruin to the people, it brings danger (to the king) from the armies of his foes and it strikes down the roots of (long) life; therefore a king should decide the causes of people according to the rules of śāstra; but in the absence of smṛti texts he should carry out (judicial adminis- tration) according to the usages (lit the views) of the country'. These are the same as Śukra (V. 5. 10-11). Kāt further pres- cribes that the usages established in a country by the approval of its people and that are not in direct conflict with Veda and Smṛtis should be recorded in writing under the seal of the king Pitāmaha²⁷ quoted by the Sṃ C. (II. p. 26) states that in certain cases it is the king's own mind that is the deciding factor.

How the king directly dispensed justice is illustrated by the rules of Gaut. XII 40–42 and Manu VIII. 314–316 that a thief who has stolen a brāhmaṇa's gold may run with dishevelled hair to the king carrying an iron club or a heavy bludgeon of khadira wood, may declare the sin committed by him and request the king to award punishment, that the king may then strike him with the club and that whether the thief dies or lives after the king so strikes him he becomes free from the guilt. The king was also the highest court of appeal. The Rājataraṅgiṇī (VI. 14-41) states how king Yaśaskara heard the appeal of a person who had sold his house without the well, who on returning III ] from a long absence abroad found the well usurped by the vendee and was defeated in the lower courts because the vendee had bribed the scribe to write ‘kūpasaluta’ instead of ‘kūpalalita’ and how the king decided in the man’s favour by exposing the vendee with a trick; while in VI. 42-69 the same king is said to have reversed another decision about a contract by a man whose 100 coins had fallen into a well. The same work in another place (IV. 82-108) states how a brāhmaṇa wife appealed to the king of Kashmir to find out the culprit who had murdered her husband in his sleep and how the king by superhuman means held a sorcerer to be the murderer.

When owing to pressure of other weighty business the king cannot attend to the work of administering justice, the king should appoint a learned brāhmaṇa together with three sabhyas to decide the disputes of people. Vide Manu VIII. 9-10, Yaj. II. 3, Kāt. 63²⁸ (same as Śukra IV. 5. 12). The qualifica tions of a judge are set out in many placeṣ Āp.²⁹ Dh. S. II. 11. 29. 5 prescribes that in law-suits judges shall be endowed with learning, good family, and should be old, clever, and careful about dharma. Nār. requires: ‘The Judge should be proficient in the texts on the eighteen titles of law, their 8000 sub-heads, in logic (ānvikṣikī) and should be master of the Veda and Smṛtiṣ Just as a physician takes out from the body an iron dart by the employ ment of surgical instruments, so a judge should extricate from a law-suit the deceit (underlying it)’.³⁰ Kāt. says that a judge should be restrained, born of a good family, impartial, not repellent (or harsh in his manners), steady, afraid of the next world, highly religious, assiduous and free from hot temper. A fine enumeration of the qualities required in a judge is given in the ancient drama Mṛcchakaṭika (IX. 4). Vide Mānasollāsa II. 2 verses 93-94. A Judge was generally styled prāḍvivāka or sometimes dharmādhyakṣa (as in Rāj R p. 18),³¹ or dharmapravaktṛ (Manu VIII 20) or dharmādhikārin (as in Mānasollāsa II. 2. verse 93). Prāḍvivāka is an ancient worḍ It occurs in Gaut XIII 26, 27 and 31, Nār.³² (I 35), Bṛhaspati (q. by Aparārka p. 602). The word is a combination of ‘prāḍ’ (one who puts questions to the suitors, from the root ‘pracch’) and ‘vivāka’ (who speaks out or analyses the truth, from the root ‘vac’ with ‘vi’). The derivation is given by Nār, Bṛhaspati, Kāt. 68 and otherṣ The word ‘praśnavivāka’ (which is quite close to prāḍvivāka in sense and etymology) goes very far into antiquity and occurs in Vāj. S. XXX, 10 and Tai. Br III 5 6. The existence of the word prāḍvivāka as early as Gautama (about 500 B. C.) and of praśnavivāka in the Vāj. S and Tai Br. clearly establishes that in ancient India judicial functions became separated very early from executive or political functionṣ

The chief Judge was preferably to be a learned brāhmaṇa (Manu VIII. 9, Yaj. II. 3). Kāt. (67)³³ and Śukra IV. 5.14 prescribe that, if a learned brāhmaṇa cannot be had for the post of the chief judge, then a kṣatriya or a vaiśya who knows the III] dharmaśāstras may be appointed, but the king should carefully avoid appointing a śūdra as a judge. Manu VIII. 20 says that the king may prefer a brāhmaṇa who is not learned and main- tains himself by the mere fact of his caste, but should never have a śūdra as the expounder of dharma and that the country whose king has a śūdra as judge to expound dharma comes to ruin as a cow sinks in muḍ Vyāsa (q. in S. V. p. 65) is to the same effect. Manu (VIII. 10–11), Yaj. (II. 3:), Nār. (III. 4) and Śukra IV. 5. 17 state that the king should appoint at least three sabhyas (puṇre judges or members of the court of justice) to associate with the Chief Judge in the disposal of suits (the idea being that three are the least number of sabhyas to be appointed). Kaut. (III. 1) prescribes that the courts called ' dharmasthīya ' should be manned by three judges called dharmasthas who should possess the qualifications and status of amātyas and that such courts should be established on the borders of the provinces, for a group of ten villages (saṁgrahaṇa), for a district (droṇamukha, 400 villages) and provinces (sthānīya, 800 villages). Bṛhaspati says³⁴ that the sabhyas may be seven, five or three. As in the case of the chief judge, the sabhyas should be preferably brāhmaṇas, but they may be kṣatriyas or vaiśyaṣ Manu (VIII. 11) and Bṛ. say that when in a sabhā three brāhmaṇas learned in the Vedas sit along with the chief judge appointed by the king that is like the sabhā of Brahmā or it is like a sacrifice. Yāj II. 2, Viṣṇudharmaśūtra III. 74, Kāt. 57, Nār. III. 4–5, Śukra IV. 5. 16–17 and others require the following qualifications in the sabhyas: they should be endowed with the study of the Vedas, should know dharma- śāstra, should speak the truth, should be impartial to friend or foe, should be steady, devoted to their work, intelligent, here- ditary, proficient³⁵ in arthaśāstra. Impartiality in the king and the judges is insisted on in the textṣ Vide Vaṣ 16. 3–5, Nār. (I. 34, III. 5). The king was not to appoint as sabhyas those who were ignorant of the usages of the country, who were atheists and devoid of the study of śāstras, who were either puffed up, hot-tempered, greedy or distressed (Br. q. in Sṃ C. II. p. 15. The chief justice (prāḍvivāka) with the sabhyas constituted the Court, being appointed ( niyukta) by the king. It was stated above that the king was to enter the Hall of Justice with the chief justice, sabhyas and brāhmaṇaṣ The distinction is that sabhyas were appointed by the king as judges, while brāhmaṇas were persons who were well-versed in dharmaśāstra, who could attend the Court, though not appointed ( anuyukta) and whose opinions on difficult points of law were respectfully received by the judgeṣ They (the learned brāhmaṇas) were in the position of amicus curiæ. All and sundry were not to intermeddle in trials before the court, but only those who were learned in dharmaśāstra were allowed to express their opinions on knotty pointṣ Vide³⁶ Mit on Yāj. II. 2. Manu VIII. 12–14 (same as Nār. III. 8–10 in a different order) say that either a person should not enter a sabhā or if he enters should say what is proper, that a man remaining silent or declaring what is false becomes a sinner and that, where in spite of the opinion of some or all sabhyas, justice is not done by the king, they become participators in the king's guilt. Kāt. (74-78) makes it the duty of the sabhyas to bring round a king gradually to the right path when the king is about to start on the path of injustice and to state the true decisioṇ³⁷ In the case of the brāhmaṇas their duty ends with stating the rule according to the śāstras; they have not, like the sabhyas, to prevent the king from doing the wrong thing or to bring him round to the path of right and justice. Nār. (III. 1) states elsewhere that one who is not appointed by the king should not interfere by his speech in the decision of a case and that if he does so he would be fineḍ This applies to the people that are present in the court to see the trial or that accompany the litigantṣ It has no application to learned brāhmaṇas, who though not appointed by the king, can state their view of the law.³⁸ Vide Vyavahārasāra pp. 16–17. Nār. III. 17 requires that all the judges of the Court should give a unanimous decision, and that then only the decision leaves no grievance (in the III] mind of the litigants).³⁹ The V. P. (p. 27) states, following Jaimini XII 2. 22, that the opinion of the majority of sabhyas is to prevail.⁴⁰ According to Gaut.⁴¹ XI 25 as interpreted by Aparārka p. 599, if there is a difference of opinion among the judges, the king is to seek the advice of those who are learned in the three Vedas (along with the other vidyās) and decide the matter finally. Kāt. (58-59) states that the court of justice should have associated with it the task of deciding disputes some merchants who belong to a guild, who are men of good family and character, of mature age, endowed with wealth and decent conduct and free from malice. The Mit. and Sṃ C. say that this is done to placate the common people in the country.⁴² This also shows the growing importance of the moneyed classes and of traders In the Mṛcchakaṭika a śreṣṭhin and a kāyastha are associated with the Judge

The chief judge and the sabhyas⁴³ were not to hold conversation in private with any one of the litigants while the suit was pending and if they did so they were liable to be fined (Kāt. 76). Kaut IV. 9 prescribes fines and even corporal punishments for judges (dharmaṣṭhas) and pradestṛs who corruptly give wrong decisions, cause loss or sentence to corporal punishment. If the sabhyas⁴⁴ give a decision, which is opposed to smṛti and usage, through friendship, greed or fear, each was liable to be fined twice as much as the fine to be paid by the defeated party (Yāj. II 4, Nār. I 67, Kāt. 79-80). The Viṣṇu Dh. S. V. 180 and Br prescribe banishment and forfeiture of all property for sabhyas that give an unjust decision or take bribes Kat 81 prescribes that the loss caused by the fault of sabhyas must be made good by them to the losing party, but the decision given by them will stanḍ⁴⁵ Śukra (IV.5 63-64) prescribes the punish- ment of a thief for a lekhaka (a scribe) taking down a different deposition from the one actually given or for a sabhya making use of such a deposition knowingly, IV 5 93 prescribes fine and removal from office if a sabhya gives a wrong decision through greed &c, and IV. 5. 282 prescribes a fine of 1000 paṇas against a judge giving a corrupt decisioṇ There must have been a few cases of judges taking bribes in ancient India as in modern times (even Lord Bacon in the 17th century was found guilty of taking bribes as Lord Chancellor and confessed his guilt) In the Daśakumāracarita⁴⁶ (VIII. p 131) the cynical jester Vihārabhadra says to his king that judges decide matters just as they please after taking bribes and the king thereby incurs in- famy and the sin of doing injustice It was believed that when a just decision was given, the king and the sabhyas became free from sin, the sin reaches him only who is guilty (whether plaintiff or defendant); but where an unjust decision is rendered a quarter of the sin falls on the litigant (plaintiff or defendant) who is guilty of adhaima, one quarter each on the witnesses, the sabhyas and the king The Baud Dh S I.'10 30-31, Manu VIII 18-19, Nar (III 12-13) have the same two verseṣ The Vyava- hāraatattva (p 200) says that Hārita also had the same verses In the Mattavilāsa-prahāṣana (pp. 23-24) reference is made to the giving of bribes to the presiding officers of courts (we should read ‘adhikaraṇa-karaṇīkānām’ instead of ‘— kāruṇikānām). Kaut IV 4 makes it a duty of the samāhartṛ to employ spies in various disguises to test the honesty of judges (dharmasthas) and magistrates (pradeśṭṛs) and, if they were found to be ready to succumb to bribes, to order their banishment

As to sabhā, vide pp. 92-93 above The Nirukta (III. 5) in explaining Ṛg. I. 124. 7 (gartārug-va sanaye dhanānām) states that gartā means a wooden board or stump in a sabhā on which a sonless widow claiming her husband’s wealth had to stand when claiming it. A court of justice was (acc. to Br.⁴⁷) of four kinds, viz. one established ( _pratiṣṭhitā_ ) in a fixed place such as a town, _apratiṣṭhitā_ (not fixed in one place, but moving from place to place as on a circuit), _mudritā_ (the court of a judge appointed by the king, who is authorised to use the royal seal), _śāstritā_ (or _śāstrīta_, acc to S. V. p. 68 and Par. M. III. p. 24) i. e. the court in which the king himself presides The Court of justice (in the capital) was to be to the east of the palace as stated by Śaṅkha and Br. (in Sṃ C. II. p. 19) and was to face the east The court-house should be decorated⁴⁸ with flowers, statues, paintings, idols of gods and should be furnished with incense, throne or seat (for the king or judge), seeds, fire and water (Br. in Sm C. II. p. 19). The sabhā was also called, as stated above, _dharmādhikaraṇa_ or simply _adhikaraṇa_ (in Mṛcchakaṭika IX and the Kāḍambarī, para 85) or _dharmasthāna_ or _dharmāsana_ or _sadas_ (Vaṣ 16. 2) The Kāḍambarī (para 85) speaks of the royal palace as having a court of justice where the judges (_dharmādhikārins_) sat on high cane seats The time for holding the court is the morning, acc. to Manu VII. 145, Yāj. I. 327. Kaut states that the king⁴⁹ should look into the disputes of people in the 2nd part of the day divided into eight partṣ The Dasakumāracarita (note 367 above) shows the same thing. Kāt. (61-62) prescribes that the time for holding the court as laid down in the _śāstras_ is three parts of the day after the first part (when the day is divided into eight parts) i. e. from 7-30 A. M. to nooṇ There were holidays on which courts were closed i. e. on 8th and 14th _tithis_, Full Moon day and the _amāvāsyū_ of every month (Samvarta acc. to Par. M. III. p. 23, Harita, acc. to S. V. p. 72). The sabhā is said to have ten _angas_ by Br.³⁷¹ viz the king, the chief judge appointed by him, the sabhyas, smṛti, gaṇaka (accountant), lekhaka (the scribe), gold, fire, water and svapurusa (a bailiff, otherwise called sādhyapāla) The chief judge declares (the law), the king awards punishment, the sabhyas examine the dispute, smṛti ( dharmaśāstra ) lays down the rule of decision, the success (of one party or the other) and the punishment; gold and fire are required for taking oaths, the water is for men when they feel thirsty, the gaṇaka counts the wealth or subject matter of dispute, the scribe writes down the pleadings, depositions and the decision, the puruṣa summons the sabhyas, the defendant, the witnesses and he guards the complainant and the defendant when they have furnished no surety (for appearance). It is further said that of these ten aṅgas (limbs) the king is the head, the judge the mouth &c. Acc to Br. (q. in Par. M III p 30) and Śukra IV 5 43 the accountant and the scribe were to be proficient in grammar, lexicography and counting, were to be pure (in character) and conversant with several alphabets Purusa was called sādhyapāla, who was to be hereditary, strongly built, a śūdra and obedient to the sabhyas (Vyāsa in Par M. III p 30, V P p 31) The ten aṅgas enumerated above (viz. king &c ) are respectively identified with the head, the mouth, the arms, the hands, the thighs (gaṇaka and lekhaka), the two eyes (gold and water), the heart, feet (Br. in V. P p 31, Hārita in Rāj R p 20) In the Hall of Justice the king faces the east, the sabhyas, the accountant and the scribe respectively face the north, the west and the south (Br. in Par M III. p. 35, Vyavahārasāra p 25) Omitting the king and the chief judge the sabhā is said to have eight aṅgas in certain works (e g. S V p 72) The chief justice, the sabhyas and the learned brāhmaṇas were probably elderly people, as great emphasis is laid on this by Nār. (III. 18) and Udyogaparva 35.58 ‘that is not a real sabhā where there are no elderly men &c ’.³⁷² In the drama Mṛcchakatika (Act IX) we have a graphic, though brief, description of judicial procedure in ancient India. That drama is at least as old as the 4th or 5th century A. D. It is very instructive to compare the procedure described in it with that gathered from Nār., Br. and Kāt. who constitute the leading triumvirate on law and procedure in the smṛtis and who pro- bably flourished a little before and a little after the drama. It will be found on comparison that the procedure in the drama is in essentials the same as that of the three smṛtis mentioned above, though there is some difference in minor detailṣ The principal points in the drama bearing on judicial administration may be brought together here at one place. The court house was called ‘ adhikaraṇa’; the chief judge was called adhikara- nika; he was assisted by the śreṣthin (a prominent merchant or banker) and a kāyastha; all three are referred to as ‘ adhīkaraṇabhojaka’ and are addressed as adhūkṛta or niyukta (appointed by the king); when a despot was on the throne, the judge’s position was precarious and he could be deprived of the post at the king’s sweet will (the Śakāra, king’s brother-in-law, threatens the chief justice with summary dismissal). There was a servant who arranged the seats in the court, inquired whether there was any litigant, summoned Vasantasenā’s mother and Cārudatta (this man corresponds to the puruṣa or sādhyapāla ); inquiry was made by the judges as to whether any one wanted to file a suit or complaint; the śreṣthin and kāyastha are asked by the presiding judge to write down the important parts of the complainant’s statement; a private person (who was not a relative) could complain to the court about an alleged murder; the judge allowed an old person like the mother of Vasantasenā and a respectable and well-known citizen like Cārudatta to occupy a seat when replying to questions from the court, but Cārudatta was deprived of this concession when a prima facie case was made out against him; the court-house (being probably situated near the palace) had near it mantrins, dūtas, spies, an elephant and a horse (and the chief of the city police is asked to ride the horse and find out whether the corpse of a woman lay in the public garden ), and kāyasthas; Cārudatta was called upon to state the truth and the judge tells him that in the court no trick (chala) will be allowed to pass;⁵² when a strong case was made out against Cārudatta by circumstantial evidence he was asked to confess his guilt, otherwise he was told that he would be whipped (i.e. this refers to whipping to extort a confession, vide above note 332); the judge was only to pronounce the judgment and recommend the legal punishment, while the king had the last word about the exact punishment. Manu's work was an authority; a brāhmaṇa offender was not to be sentenced to death, but was to be banished with all his wealth, though some kings did not act up to this rule; impalement was carried out by cāṇḍālas, ordeals of fire, water, poison and balance were known and Śūdraka convoys (visasalalātulāgmpra'bhute me vṛcāṇe) that Cārudatta had prayed for trial by ordeal, but that the chief justice, because there were witnesses and circumstantial evidence, refused that request.

The court so far described (i.e. where the king or the chief justice appointed by him presided) was the highest court. But other tribunals were recognized in the smṛtis and digests Yāj. I 30 and Nār. (I. 7) state⁵³ that law-suits may be decided by village councils (kulāni), corporations (śreṇi), assemblies (pūga in Yāj., gaṇa in Nār.), the judges appointed by the king and the king himself, each later one being superior to each preceding one. The first three were practically arbitration tribunals like the modern panchayatṣ The several words here require explanation and they have been differently interpreted by different digestṣ Medhātithi on Manu VIII 2 explains these words at great length. Acc to him 'kulāni' means 'group of relatives' and also (acc. to some) 'impartial persons' (madhyasthapurusāḥ) and 'gaṇu' means 'builders of houses and mansions or brāhmaṇas dwelling in maṭhas'. Acc. to the Mit. and V. P. p 29 'kulāni' means 'an assembly of the rela- tions, agnatic and cognatic, of the litigants'; acc. to the Sṃ C. it means 'the agnates of the parties'; acc. to Aparārka it means 'husbandmen'. It appears likely that 'kulāni' means officers who presided over a group of eight or ten villages and who were granted the produce of one kula of land as their salary. Vide Manu VII. 119 and Kullūka thereon and Dāmodarpur plate of Gupta year 124 in which the head of the district (viṣayapati) is said to have been assisted by the nagaraśreṣṭhin, prathama-kulika and prathama-kāyastha (E. I. 15 p. 130) and 'grāmāṣṭa-kulādhikaraṇam' in E. I. vol. 17 p. 345 at p. 348 in the reign of Ku mārāgupta I. From the Sanchi stone Inscription of Chandragupta II (of the Gupta year 93 i e 412–13 A D.) it appears that panchayats were called 'pañcamandali' (Gupta Inscriptions pp. 29, 31). 'Śreni' means, acc. to most commenta- tors, 'the corporation of persons following the same craft or avocation, though they may belong to different castes' such as horse-dealers, betel-leaf sellers, weavers and dealers in hide. Acc. to the V. M. p. 280, 'śreni' is an association of artisans or traders'. 'Pūgas' are assemblies of men of one place (a village or a town) belonging to different castes and following different avocationṣ Kāt (225 and 682) distinguishes between gaṇa and pūga which he respectively defines as 'assembly of families' (kulas) (Sṃ C. II p. 18, Par. M. III. p. 352) and 'assemblies of traders and the like' (V. R. p. 668) V. P. p. 30 says gaṇa and pūga are synonyms The king was thus the highest court of appeal and next to him was the court of the judges appointed by hiṃ Bṛhaspati (S. B. E. vol. 33 p. 281 verse 28) ordains⁵⁴ that the kulas, śreṇīs and gaṇas that are well-known to the king may decide the disputes of litigants except those that fall under sāhasa and that it was only the king who could carry out the order for fines or corporal punishments, i e the arbitration courts could only decide disputes not involving sāhasa and they had no power to execute their decrees about fines and corporal punishments, but that their decisions had to be filed with the king, who, if he did not disapprove of them, put them into execu- tioṇ Pitāmaha⁵⁵ appears to mention three classes of State courts, while Yāj and Nārada refer only to two (viz. that of the chief justice and that of the king himself): 'a dispute decided in a village may be taken to the city and one examined in the city (court) to the king; a dispute decided by the king whether correctly or incorrectly cannot be revieweḍ' It is distinctly provided by Br.⁵⁶ (S B. E. vol 33 p. 282 verse 31) that the sabhyas are superior to the kulas and the rest, the chief justice is superior to sabhyas and the king is superior to all Pitamaha⁵⁷ provides that when a litigant is not satisfied with the decision given by a kula tribunal or the others, he can carry the matter by way of appeal to the king. Besides these courts, Kauṭilya that the village headman (grāmka or grāmakūta) exercised certain summary powers such as driving out of the village a thief or an adulterer (III 10) and that he could try some offences (IV. 4, grāmakūṭamadhyakṣam vā satri brūyāt &c.). Even in the 20th century in the Bombay Presidency under the Village Police Act (Bombay Act VIII of 1867) the village headman (called Police Patil) has the authority to try and on conviction to punish with confinement for a period not exceeding twenty-four hours any person charged with the commission of petty assault or abuse within the limits of a village and the person convicted has no right of appeal to any court or magistrate against such conviction and only the High Court has the power to entertain a petition for revision (which it hardly ever does). Bhrgu³⁷⁹ quoted in Sṃ C II p 18 and other digests says that there are ten tribunals common to all men viz. the village people, the assembly of the citizens of the capital, gana, sreni, men learned in the four vedas (or rudyās viz. ānvīksiki and the rest), the virgins, kulas, kulukas, judges (appointed by the king) and the king himself. The vargins³⁷⁹ are the groups of various kinds such as ganas, pūgas, vrātas, sreņis and others Kulikas may be the elders of the families of the plaintiff and the defendant. In the Damodarpur plates (E. I. 15 p 130) we come across one Dhrtimitra who is described as 'prathamakulika'. The word 'pañcakula' was applied to certain high officers in Gujarat and Kathiawad; vide I. A. vol. 11 p. 220 (Abu Inṣ of Bhimadeva dated Vikrama year 1265) and Tawney's translation of the Prabandha-cintāmaṇi pp. 18, 84, 129, 149, 190 for ‘pañcakula'. The provisions about the conflict between customs and usages on the one hand and smṛti and smṛti on the other will be dealt with in detail later on in another sectioṇ A few words may be said here about conflicts between smṛtis In disputes between residents of the same country, the same city or the same hamlet of cowherds or of the same capital or village, the decision should be according to their own conventional usages, but in disputes between these and others (who are not residents of those respective places) the decision must be in accordance with the sacred texts³⁸⁰ (Kāt. 47 q in S. V p 72, Par. M. III. p. 41). Another rule is that when there is an apparent conflict between two smṛtis, reasoning is to decide in ordinary life which should be followed or reasoning based on the actions of the aged and the experienced is to decide what text to follow (Yāj. II 21) and the business of the interpreter consists in holding that one of the smṛtis contains a general rule and the other an exception or that the two apply to different sets of circumstances (visaya-vyavasthā) or that an option may be intendeḍ Voluminous glosses have been written on this one text of Yāj II. 21 right from Viśvarūpa in the 9th century downwards Another rule is that in the administration of justice dharmaśāstra rules have superior force to those of Arthaśāstra This has been already referred to above (p 9) Bhṛgu further provides that foresters may get their disputes settled by foresters, members of caravans by other members, soldiers by (a tribunal of) soldiers and those who stay in a village as well as in a forest may get their disputes settled either by villagers or by foresters by mutual agreement and that the five tribunals for foresters and others are kuhkas (high officers or heads of families), sārthas (members of caravans), headmen, villagers, citizenṣ The texts further provide that in certain cases the court was to call in aid outsiders to help in deciding disputeṣ Vyāsa⁶⁰ says: 'In the case of disputes among traders, artisans, husbandmen and actors it is impossible for others to give a (correct) decision, hence such matters should be got decided by experts in those various matters'. Br. states that in disputes among husbandmen, craftsmen (carpenters and the like), artisans (like painters), money-lenders, guilds, dancers, sectarians (like Pāśupatas) and criminal tribes the decision should be made with the help of those who understand the conventions made by them and their usageṣ In disputes about the boundaries of villages and about fields in a village, four, eight or ten neighbours were to settle the boundaries (vide Manu VIII. 258, Kaut. III. 9, Yaj. II. 150-152). Kaut. 1 19 and Br.⁶¹ (q in V P. p. 23) say that disputes between those who have performed austerities or between those who are adepts in witchcraft and Yoga should not be decided by the king (unaided), but with the help of those learned in the three Vedas, as otherwise they may feel offendeḍ These quotations show that certain people could claim to be tried by their peers or at least by a jury. This jury system was resorted to for settling complicated questions of fact. It is a very ancient system, being mentioned even by Gautama⁶² XI. 21-22 'the king, having received help from the heads of husbandmen, merchants, cow-herds, money-lenders and artisans as regards disputes in their own groups, should finally decide what is just'.

It has already been stated above that the king is to decide according to the smṛtis He has also to take into consideration the duties and usages of the several varnas and the eighteen low castes ⁶³ ( acc. to Manu VIII. 41 and Harita ). The eighteen low castes said to be outside the pale of the four varnas and aśramas are enumerated by Pitāmaha, viz. washerman, shoe-maker, nata ( dancer caste ), bamboo-worker, fisherman, mleccha, bhilla, abhira, matanga and nine others ( the names of which are not given here as the text is corrupt ).

The foregoing gradations of tribunals did not all exist at all times in ancient and medieval India. One thing is, however, quite clear There was always a court of the Chief Justice appointed by the ruling power and final appeal lay to the ruler himself. But as regards inferior tribunals usage varieḍ For example, it appears from a decision of 1742 in which a. ruling of king Shivaji about a Kulkarni _vatan_ is set out that in Shivaji's time disputes could be taken before three different but inferior tribunals, viz the _got_ ( i. e. the assembly of castemen ) which is somewhat like the _kula_ tribunal of the _smrtis_, or before arbitrators hailing from a place other than where the dispute took place or before the officers, _balutedars_ and chief men of several villages round about. ⁶⁴

Manu (VIII 23) prescribes that the king fully dressed and with an undisturbed mind, after taking his seat in the Hall of Justice, should perform obeisance to the gods, the guardians of the (eight) quarters (Indra and others, as specified in Manu VII 4) and should then commence the work of looking into the legal business The transaction of legal business has four stages (from the king's or judge's point of view) viz. first receiving information from a person, then finding out under what title of law (vyavaharapada) the information falls, then consideration of the pleadings of the parties and the evidence led by them and lastly the decision⁶⁵ When a litigant comes before the court at a proper time (i. e. when the court is sitting) and makes his bow, he (the king or judge) should⁶⁶ address him as followṣ—“ What is your business? What is the injury done to you? Don’t be afraid, speak out, man! By whom, when where and why (was the injury caused)? When thus asked whatever he replies should be considered by (the judge) with the sabhyas and brāhmaṇas and if the matter be legally ascertainable he (the judge) should deliver the seal (sealed order) to the plaintiff or order the bailiff to summon (the defendant)”. These observations are made by Kāt (86-88) Whatever a man, being excited by one of the emotions of love (or anger or greed), says before the court, should be first written down on a board or the like by the scribe (Nār ⁶⁷ II 18)

Very elaborate rules are laid down about the summoning of the defendant or accused by Nār. (I. 52-54), Br, Kāt (96-100), Sukra (IV. 5.102-106) and otherṣ A few of the rules are set out below. The first person to be summoned is the one against whom a complaint based on suspicion or truth is made by the plaintiff or complainant But other persons may be called as defendants ⁶⁸ either when the person proceeded against by the plaintiff puts forward another as liable to plaintiff’s claim or makes another liable along with himself or when another person is accepted by the plaintiff (on behalf of another who is a minor &c.) or (acc. to the Madanaratna ) another person himself comes forward (as defendant) The king should not require the personal appearance of the following persons the diseased, minors, very old (beyond 70), one in a calamity, one engaged in some III ] religious rite, one who would suffer irreparable loss by coming, one in misfortune (such as the death or disappearance of a dear relative), one engaged in the king's business or in a (religious) festival, one intoxicated, a lunatic, one distressed, a servant, a woman⁶⁹ who is young and whose family is in straitened circumstances or who is of good family or who is recently delivered, a maiden who is of a higher caste than that of the complainant. Nār. (I. 53) prescribes that cowherds when it is the season for taking cows for grazing, agriculturists in the sowing season, artisans actually engaged in work and soldiers engaged⁷⁰ in war should not be summoned to appear in person, while so engageḍ In these cases some one on their behalf should be summoned as a representative. But it is provided that even these persons may be summoned with proper safeguards in important cases or grave charges, such as the killing of human beings, theft, rape, eating forbidden food, counterfeiting coins, high treason &c. But women who by their earnings support their families, unchaste women, prostitutes, women without family and women excommunicated for grave sins may be summoned to appear personally⁷¹. A person who is summoned and is able to appear but does not appear in person was to be fined according to the value or importance of the subject matter of dispute e. g. in slight causes fifty (copper) paṇas, two hundred at least in the cases of middling value and 500 paṇas at least in heavy causes (vide Kāṭ. 100-101 quoted by Sṃ C. II p 34, Aparārka p. 607.) After taking the fine and waiting for 30 days or a month and a half the king may give a judgment in favour of the plaintiff, due to defendant's default. But if the defendant does come after that time, the suit may be restored and proceeded with.⁷² But when there is an invasion by an enemy or a famine or an epidemic or disease the king should not impose a fine, but send a second summonṣ In the case of those who are exempted from personal appearance (as above) their relatives (son, father &c.) or some other person appointed by them (such as a pupil, servant &c.) or one who can be recognised as their agent may be allowed to appear ⁷³. But no representative was allowed in serious charges cited above (vide Kāt 93–95 q by Aparārka p. 639, Sm C, II p 34). If a father, brother, a friend, or a relative appears before the court for the real litigant, the law-suit may be proceeded with (Pitamaha) Whoever carries on anything through another by appointing him to that task should be understood to have done it himself and the business transacted by such a representative or agent cannot be annulleḍ If a person who is not a brother nor father nor son nor appointed to represent another prosecutes a law-suit for another, he is liable to be fined ⁷⁴. As the king was supposed to be the guardian of a minor’s wealth, it appears from this that a king-could have appointed a guardian for the suit when a minor was concerneḍ The above provisions show that maintenance and champerty were not encouraged by ancient Hindu lawyerṣ

An interesting question arises whether lawyers as an institution existed in ancient India. The answer must be that so far as the smṛtis are concerned, there is nothing to show that any class of persons whose profession was the same as that of modern counsel, solicitors or legal practitioners and who were regulated by the State existeḍ This does not preclude the idea that persons well-versed in the law of the smṛtis and the procedure of the courts were appointed ( niyukta ) to represent a party and place his case before the court. The procedure prescribed by Nār, Br and Kāt reaches a very high level of technicalities and skilled help must often have been required in litigatioṇ In the com of Asahāya as edited by Kalyāṇabhaṭṭa on Nār. (rnādāna 4) there is an instructive story from which it appears that persons who had studied the smṛtis helped parties in return for a monetary consideration to raise contentions before the court. But there also the helper comes forward saying that he is a very old friend of the family and has been appointed by the party to represent hiṃ So he corresponded to what is called a recognized agent in the Indian Civil Pro- Code, Order III r 2 (Act V of 1908). In Śukra IV. 5. 114-117 some important rules are given :⁷⁵ the person who is appointed to represent a party should get as his wages 1/16, 1/20, 1/40, 1/80 or 1/160 part of the amount in dispute, that the wages become less and less as the claim in dispute becomes higher or if several persons employ one representative; one who knows dharmaśāstra and the procedure of law-suits should be appointed as representative and not any one who is deficient in these; if the representative takes wages without knowing these he should be punished by the king. A representative is to be appointed by the party and not by the king at his will; if the representative allows the matter entrusted to him to fail owing to his greed he is liable to be fined⁷⁶. In the 'Questions of Milinda' (S. B. (Continued on the next page) E vol 36 p. 238) there is a passage about certain bhikkhus in the 'city of Righteousness' (dhammanagara) who are styled 'dhammāpaṇikas' (dealers in dharma) and are described as follows: ‘(Bhikkhus), who in the spirit and the letter, in its arguments and explanations, its reasons and examples teach and repeat, utter forth and recapitulate the ninefold word of the Buddha; such bhikkhus are called, O king, lawyers in the blessed one's 'city of Righteousness' and on p 239 there are 'dhammasetthino' (bankers of dharma), which word reminds us of the sresthin in the Mṛcchakatika. The dhammāpaṇikas probably correspond to such lawyers as Smārtadurḍhara mentioned above The rules of Śukra make a near approach to the modern institution of the Bar and the fees prescribed by Śukra are similar to those allowed by the Bombay Regulation II of 1827 and by Schedule III to the Bombay Pleaders’ Act (Bombay Act XVII of 1920) The first legislative enactment in India to deal with lawyers for representing parties passed by the British Government was the Bengal Regulation VII of 1793 which defin- ed the privileges, the fees (five per cent up to 1000 and then on a sliding scale) and responsibilities of vakīls (which word originally means ‘agent ’).

The plaintiff may put under restraint till the approach of the summoner (the bailiff) by the king's order the defendant, who does not stand up to meet the claim (i e, is about to abscond or may abscond) that is to be investigated (or when the plaintiff spoke to him about the claim before coming to court) and who disregards the words of the claimant. This is called āsedha which is explained by the Mit. on Yāj. II. 5 as restraint under the king's order. It is of four kinds viz. restraint as to (sthāna) place (e. g. you are not to go elsewhere from your house or a temple), as to time (e. g. you must present yourself on the 5th of a certain month), restraint from going on (prā- vāsa) a journey (till the suit is decided) and restraint from doing certain actions (e. g. you are not to sell certain property or to plough a certain field till the disposal of the suit.)³⁹⁶. The rules about āsedha are laid down by Nār. (I. 47-54), Br. (q. by V. P. p. 42, Sṃ C II. pp. 30-31), Kat. 103-110 (all quoted by V. P. pp 41-42, Sṃ C II. pp. 30-31) Nār. (I. 54) states that those persons whose personal appearance is dispensed with as stated above are not to be subjected to āsedha Nārada provides that he who disregards the prohibitory order (āsedha) of the court should be punished and that he who obtains a restraint order against a person that should not have been thus proceeded against should also be punisheḍ Acc. to Kāt. that man who restrains the defendant so as to prevent him from exercising his limbs or from talking or breathing freely should be punished and not the defendant if he breaks such restraint. A defendant would not be liable to be fined, if he disregards a restraint order which ties him down to a river ford, or to a forest, or to a bad place (infested by thieves and tigers) or at the time of an invasion (Nār I 49) There is a provision which looks like one for the appointment of a Receiver in modern timeṣ Kāt. (120) says 'A king should not allow a litigant to proceed if the litigant retains the property or money which he has (been shown to have) seized : it should be delivered over to the opposing litigant ( if he be trustworthy )' or it may be kept with a third person ( as receiver for the successful party )³⁹⁷. When the defendant comes on being summoned, he and the plaintiff are both to be placed before the judges (Pitamaha q. in Sm C II p 34) Then a surety is to be taken from both who would be capable of carrying out the decree made by the court, i. e. who would be able to pay the amount of fine to the king if the defendant denied the plaintiff's claim or who would be able to pay double the amount of the claim if the plaintiff's claim be found to be false (Yāj. II 10-11). If any one of the parties cannot offer a surety, then he has to be kept in the custody of the court's bailiff (sādhyapāla) and has to pay the daily wages of the bailiff at the end of every⁸⁰ day (Kāt 117 q. by Mit on Yāj II 10). The following persons could not be accepted as sureties (Kāt. 114-116 q. by Mit on Yāj II 57) 'the master (in the case of a party being a servant), an enemy, one authorised by the master, one arrested, one fined, one accused of grave sins or offences, one who is a co-sharer in family property, a friend, one who is a perpetual student, one who is appointed to do the king's business, ascetics, one who would not be able to pay the amount decreed and the fine to the king, one whose father is living, one who incites the party for whom surety is demanded, one whose antecedents are unknown'. When a person (of any caste) is kept guarded for want of a surety he is not to be prevented from doing necessary and obligatory acts (bath, sandhyā worship &c.) and if he runs away from the guard he should be fined eight panas (Kāt 119 q. in Par M III 58).

When the defendant comes before the court, the information at first given by the plaintiff is to be written down accurately in his presence together with the year, month, fortnight, day, names (of parties), caste &c. (Yāj II 6). When the aggrieved party first comes to the court, all that is taken down is the matter in dispute (i. e. the draft of the plaint), when the defendant comes, the plaint is written down with all details (including the grievance as stated in the beginning).⁸¹ The plaint is called by various names in Sanskrit viz. pakṣa, bhāṣā, pratyājñā (Mit on Yāj II 6). Sometimes the word 'pūrvapakṣa' is used for pakṣa (as in Kāt 131, Nār II.1). Vādin and pratīvādīn generally mean the plaintiff and the defendant, though vādin sometimes means 'a litigant' (either the plaintiff or defendant). Asthān (one who seeks the assistance of the court) and abhyoktr (attacker) are synonyms of vādin, and pratyarthin and abhyukta (attacked) are synonyms of pratīvādin Kāt. III ] (130-131) says that the judge⁸² should have the plaint written down on a board (or on the ground) with a piece of chalk as narrated naturally by the claimant and then on a leaf (palm leaf or bark or paper) when it is corrected (after the defendant appears) and that the plaintiff may delete some matters from the original (draft of) plaint and may fill in gaps and that such amendments may be made in the draft till the plaint is finally settleḍ⁸³ It appears from the Vyavahāratattva (p. 205) that the pleadings (the plaint and the reply) could be written down in Sanskrit or in the vernacular of the parties if they were ignorant The Mṛcchakaṭika (Act IX) shows how the presiding judge asks the śreṣṭhin and kāyastha to write down the words 'not by me' as the complaint of the Śakāra when the latter averred that Vasantasenā was killed by Cārudatta and not by himself The plaint could be amended till the filing of the reply⁸⁴ (Nār II 7). Elaborate rules are laid down about the contents of the plaint by many writers from Kauṭilya (III 1) downwardṣ Kaut⁸⁵ states that in the plaint should be entered the year, season, month, fortnight, day, the documents (to be relied upon), the court (in which the plaint is lodged), the (amount of) debt (or other money due) and the country, village, caste, family, names and occupations of the plaintiff and defendant together with the relationship in which they stood to each other. Kāt (127-128 q by Mit on Yāj II. 6 and Aparārka p 608) requires that in suits about immoveable property, ten details should be recorded in the plaint viz. the country, the place (town or village in which the property is situated), situation (boundaries or the figure such as a square &c.), the caste (of both parties), names, the dwelling place (of the parties), the measure (so many narakanas &c ), the name of the field, (names of) the father, grandfather and great-grand-father, mention of the former kings Kāt. 124-126, Br (q in Sm C. p. 36 and V M p. 294) give further details, which are passed over for want of space. All the details enumerated above need not occur in every plaint, but the necessary ones must be stated according to the facts of each case⁸⁶

These rules about the contents of plaints are very similar to those in the Indian Civil Pro. Code, Order VII rules 1-5

In modern India no suit or appeal can be filed unless the plaintiff or appellant pays substantial court-fees (Rs 7½ per cent upto Rs 1000 and 5 per cent for higher claims up to 5000 and so on at reduced rates as the claim rises) It is interesting to see how the litigants in ancient India fared in this respect It appears that in disputes of a criminal nature no court fees had to be paid in ancient India The person found guilty had to pay to the king the fine declared in the Smṛtis for offences or awarded by the Court. As regards civil disputes also nothing had to be paid at the inception of the suit Certain rules are prescribed by Kaut (III 1), Yaj, Viṣṇudharmasūtra, Nār and others about payments to the king after the suit is decided, which payments may be regarded as in the nature of court fees Yaj II 42 and Viṣṇudharma- sūtra VI 20-21 state that in the case of suits for the recovery of debts the debtor who admitted that he was a debtor (but did not pay the creditor) should be made to pay to the king 10 per cent on the amount decreed and the successful creditor should pay five per cent out of the amount decreed (as bhṛti, compensa- tion or court fee)⁸⁷. When the debtor denies the fact of debt altogether and the creditor succeeds in establishing it, the debtor had to pay the amount decreed to the creditor and an equal amount to the king as fine, but if the plaintiff turns out to be a false claimant (i. e. the relationship and the amount of the debt are not proved) he had to pay to the king as fine twice as much as the amount claimed by him (Yaj II 11) Nār also (IV 132) says⁸⁸ that a debtor, who is able to repay a debt but does not do so through wickedness or malice, should be made to pay the debt after recovering five per cent from the debtor. The Sṃ U. II. p 121 says that this applies to a case where the debtor admits his liability to the plaintiff. Manu VIII. 139 gives milder rules: 'if a debtor admits before the Court that he is a debtor, then he has to pay a fine equal to five per cent on the amount decreed, but if he denied the fact of debt altogether, then he has to pay as fine ten per cent'. Manu VIII. 59 which prescribes a fine twice of that amount which the debtor falsely denies or which the creditor falsely claims contains a somewhat different rule (which Medhātithi says applies where parties are guilty of downright fraud, while VIII. 139 applies where there is negligence or loss of memory &c.). In suits other than for debts such fines are also prescribed e. g. in Yaj. II. 26 for one who misappropriates a pledge, II. 33, II. 188 (for breach of the rules of guilds and other groups), Yaj. II. 171 (where a person claiming to be the owner of lost goods and failing to prove his ownership of them was fined pañca-bandha i. e. a fifth part of the price of the goods). Kaut prescribes⁸⁹ that when a party is guilty of contradictory pleadings, or does not cite witnesses though saying he has witnesses and is defeated for these and similar reasons he has to pay a fine of 20 per cent of the claim and 10 per cent only if he relied on his own deposition (and called no witnesses) and further the defeated party has to pay the costs viz. the wages of the bailiff and of the subsistence allowance of witnesseṣ Therefore it may be said that in ancient times Indian litigants had an easy time, while in modern times litigation is often ruinous, what with the heavy court fees to be paid in several courts, the fees of legal practitioners and the expenses of witnesses and the delay of years⁹⁰. The remark of Dr. Hart (in 'Way to justice' p. 17) is as appli- cable to modern India as to England 'the plain truth is that the justice of the courts is unattainable by some citizens through want of the necessary financial resources; while in the case of many others it is not worth having at the cost which it involves'.

In one of his most famous soliloquies Shakespeare (in Hamlet III. 1 ‘Oppressor's wrong, the proud man's contumely, the pangs of despised love, the law's delays') enumerates law's delays among the principal evils of human life. In modern India as in England⁹¹ before 1873 delay in the decision of causes is a crying evil. In the rough and ready methods of administering justice in ancient India care seems to have been bestowed on disposing of cases as quickly as possible. The story of king Nrga who caused delay has already been referred to (p. 243). Kaut (III. 1) states that if the plaintiff, after the defendant files his answer, does not on the same day begin to support his case (by evidence) he would be declared to be defeated, since the plaintiff comes to court after determining the strength of his case, but the defendant does not do so (he is dragged to the court); that the defendant may be allowed an adjournment of three or seven days for his defence; if he is not ready with his defence within that time he may be punished with a fine, ranging from 3 to 12 panas; if he does not answer even after three fortnights he shall be punished with fine for parokta (viz pañcabandha or daśabandha as stated above in note 407) and the plaintiff's claim would be recovered from the property of the defendant. A similar rule is laid down in Manu VIII. 58. Yāj. II. 12 prescribes that disputes relating to sāhasa (killing by poison or weapon), theft, abuse, assault, cows, charges of grave sins and women (about the chastity of all women and about ownership in the case of female slaves), the defendant has to make his defence at once, and that in other cases time may be granted at the discretion of the court. Nār. I. 45 is to the same effect. Nār. I. 44 holds that adjournments may be granted in suits about debts and the like for finding out the truth as such disputes are complicated and as memory is weak. Pitamaha (q. in Sṃ C. II. p. 42) says that adjournments may be granted in disputes about deposits, sealed deposits, gifts, partnerships, transgression of conventions and partition of heritage. Gautama XIII. 28 speaks in general terms of an adjournment for one year, when the defendant does not remember the transaction, but prescribes immediate trial in III] disputes about kine, women and children or when the matter is urgent i. e. where loss or abandonment of the thing will be the result of delay (Gaut. XIII. 29-30). Bṛhaspati allows time even to the plaintiff if he is not able to put forward his case owing to his immaturity or lack of boldnesṣ⁹² Kāt. (145-158 quoted by Aparārka p. 619, Sṃ C II. p 42, Par. M. III. pp. 69-72) contains elaborate rules about adjournmentṣ He says that according to the importance or otherwise of the dispute, one, three, five, or seven days may be allowed to the defendant to make his defence in disputes about debts, according to as the debt was contracted three months ago or 6, 12, 20 or 30 years ago; that even more than a year may be allowed if the defendant is an idiot or lunatic or is suffering from disease or if the subject of dispute or the witnesses are in a foreign country; that more adjournments than one may be granted in such cases; that according to Bṛhaspati in disputes about immoveable property also no adjournments should be granted; that if the act of God ( daiva ) or the king prevents the defendant from making his defence he should not be declared defeated, but time should be granted to him to prove thiṣ It is clear that with the advance of time adjournments became longer and more frequent in Kāt. compared with the rigid rules of Kauṭ. Kāt. and Śukra (IV. 5. 167, 209) contain the last word on this point. According to them delay in deciding causes is tantamount⁹³ to denial of justice ( dharmavyāpatti, lit. death of Justice ).

The sequence of stages in a law-suit is as follows: first the plaintiff makes his averments, then the defendant makes his reply; when both have finished, the members of the court speak (or deliberate among themselves) and after them (speaks) the judge (Kāt. 121 q by Aparārka p. 611, Par. M. III. p. 58). The four stages ( pādas ) of a law-suit, acc. to Yaj. II. 6-8, and Brāhme named ¹¹² bhāṣāpāda (the plaint), uttarapāda (the reply), kriyāpāda (the adducing of evidence), sādhana siddha ¹¹³ or nirnaya (the decision); while Kāt 31 states them as pūrvapakṣa, uttara, pratyākalita and kriyā Pratyākalita means 'discussion or consideration among the sabhyas about the burden of proof' (vide p 260 n 337) If several persons come simultaneously with complaints or plaints, then the order of taking up the cases is regulated by the tārana of the plaintiffs i. e. the suit of a brāhmaṇa is first taken up (Manu VIII 24) Kaut I 19 states ¹¹⁴ that the causes of temples (or idols), ascetics, heretics, brāhmaṇas learned in the vedas, about cattle and sacred places, of minors, of the aged, of those afflicted with disease or misfortunes, of the helpless and of women are to be looked into in the order enumerated or according to the importance of the causes or their urgency. Kāt (122 q in Sm C II p 35, Par M III p. 59) says that preference should be given to that litigant whose injury is greater or whose cause is more important than those of the rest. Kaut III 20 went ⁹⁷ so far as to say that judges should look into the causes of idols (or temples), brāhmaṇas, persons performing austerities, women, minors, the old, the diseased, the helpless, even if they did not come forward to complain nor should judges put forward the excuses of time (1. e. the long delay in taking cognisance of their causes), place, or (long) enjoyment (of their opponents)

Lengthy quotations and illustrations are cited in the commentaries and digests about the requirements of a good plaint They are all passed over. They well illustrate the penchant of ancient Indian writers for divisions, sub-divisions and subtle distinctionṣ

Kāt. (136 quoted by Aparārka p. 609) specifies several reasons which make a plaint unacceptable viz one that lacks III ] the mention of the time and place ( of the cause of action ), that omits the statement of the material (dravya, which is the subject of dispute ) or the amount thereof and that is wanting in ( stat- ing ) the extent of the relief claimed, that is opposed ( to the interests or usages ) of the country, that is prohibited by the king's order, that mixes up several vyavahārapadas.⁴¹⁶ Certain plaints are declared to be vitiated (pakṣābhāsa)⁴¹⁷ and not entertainable viz. a plaint that contains an unknown ( or imaginary ) grievance, that discloses no injury, that contains letters or words making no coherent sense, that states no cause of action, that is incapable of proof or is self-contradictory (Kāt. 140 q. by Mit on Yāj. II 6, Par. M III. 61 ) Nār. II. 8 also points out the faults (doṣas) of a plaint and explains them (II. 9-14) Bṛhaspati states that there is to be no law-suit between teacher and pupil, father and son, husband and wife, and master and servant. This does not mean that law-suits between these pairs are altogether prohibited but that suits between them are undesirable, that the king or judges should persuade them to desist from proceeding in Court, that if they persist the court has to decide the suits according to the śāstra.⁴¹⁸ Manu ( VIII. 299-300 ) prescribing the same punish- ment as for thief in cases where a wife, son, slave, servant or brother is beaten for correction more severely than is allowed in the śāstras by the husband, father, master, or elder brother respectively conveys by implication that a legal proceeding by these is possible. The smṛtis did not encourage disputes based on flimsy or trumpery groundṣ Bṛhaspati¹⁰² says that a plaint that is nrarthaka (i. e the injury in which is very small or the monetary value involved is negligible) should not be entertained by the king. This is on the principle of de minimis non curat lex (the law does not take account of trifles) also embodied in sec. 95 of the Indian Penal Code.

When the plaint has been finally settled, the defendant should be called on to reply in writing to the plaint in the presence of the plaintiff (Yāj II. 7, Nār. II 2 ) This is called uttara ( reply ) or pratipaksa (Nār. II. 2). When time may be given to the defendant for putting in his answer has already been stated above.

The answer of the defendant must possess the following characteristics viz it must completely meet all the points of the plaint, it must not deviate from the truth, must not employ vague words, must not be self-contradictory, it should not be such as to require further explanation (because of containing words in a foreign tongue or unknown or rarely used words or elliptical or badly arranged sentences)¹⁰³ A reply is of four kinds, (1) mithyā (of denial), sampratipatti or satya ( confession or admission), kāraṇa or pratyavaskandana (of special plea or demurrer), prāṇnyāya or pūrvanyāya (of former judgment or res judicata ). A reply of denial may take four forms (Nār II. 5) viz. (1) this (what is affirmed in the plaint) is false, I do not know anything about it, I was not present (when the transaction alleged in the plaint is said to have taken place ), I was then not borṇ¹⁰⁴ The first is a direct denial, the others are implied or indirect `Very strict rules of pleading were evolved by the time of Kāt., who provides (144) that if a statement asserted by the plaintiff in the hearing of the defendant is not traversed by the latter or if the latter remains silent when he should have given a reply, it (should be held by the court that it) is admitt- ed (by the defendant).¹⁰⁵ When the defendant declares the truth of the claim made in the plaint that is a reply of admissioṇ Where the defendant accepting as correct the matters (or facts) set out by the plaintiff raises a plea, that is a reply of special plea.¹⁰⁶ The same is designed by some as ādhārya or ādharya (rendering futile) of the plaint. For ex- ample, where plaintiff avers that defendant took one hundred rupees and defendant accepts that fact but adds either that he later on returned them or that they were really donated to him, that is a reply of special plea. Where a person though defeated in a (former) proceeding again causes a plaint to be written and is addressed (answered) with the words 'you were formerly defeated', that is a reply of former judgment. That there was a former judgment between the same parties may be proved by citing the judges or arbitrators or by citing other witnesses or by producing the writing itself i. e the copy of the judgment (Kāt. 172).¹⁰⁷ In a reply of admission there are only two stages of vyavahāra vīz, the plaint and the reply; there is no need of proof (so there is no kriyāpāda) and the plaintiff succeeds as a matter of course (and so there/is no necessity of a regular judgment, nirṇaya). Kāt. (173–190) states at great length the faults of a reply and also what are not proper replies The Mit (on Yāj. II. 7), Aparārka pp 613-614, Sm. C. II. pp. 43-46 and other digests quote long passages from Kāt, Br, Hārīta, Vyāsa and others on faults of uttara and illustrate them at length. These have to be omitted for want of space. One of the faults is 'sankara' (mixture or confusion or misjoinder of pleas in defence). For example, if the plaint alleges 'the defendant took gold, a hundred rupees, certain valuable clothes and a quantity of corn and has not returned any of them,' and the defendant's reply is 'I took the gold, I never took any rupees, the plaintiff donated the clothes to me, as to the corn plaintiff had already filed a suit against me and failed'. Here the reply contains all four varieties, viz. the first is a reply of admission, the 2nd is one of denial, the third is a special plea and the 4th is a plea of former judgment. This is a sankara. But it is not meant that this reply would not be alloweḍ All that is meant is that, as the burden of proof varies, the adducing of evidence will not be allowed simultaneously, but one after another. Vide Mit. on Yāj II. 7, Par M. III pp 77-80. These questions are concerned with cases in which several issues arise, the burden of proving some of which lies on the plaintiff and the burden of proving others lies on the defendant. If a defendant does not come forward to give a reply, the king or judge should make him give one by sāma (conciliatory words), bheda (threats) and other ways and if he does not give a reply for seven days after that, he may be declared to have been defeated and a decree may be passed against ¹⁰⁸ hiṃ Kaut (III. 1), Yāj II. 9, Nār I. 55, Kāt (163) state that a defendant cannot ¹⁰⁹ raise a counter-claim (pratyabhyoga) as long as he has not met the attack of the plaintiff, nor should another plaintiff attack a person who is a defendant in a suit already filed, except in the case of abuse and assault, sāhasa (death or grievous hurt by a weapon &c.), theft or in a very urgent matter, or in disputes among members of caravans or guilds or in charges of adultery, Yāj II. 29, Nār IV 93, Śukra IV. 5. 120 say that when a litigant dies while a suit is pending, his son (or other representative) who takes his estate should carry on the litigation or be liable for the claim and the son cannot add his own enjoyment (to make up Grounds of defeat

three generations, &c. as required for possession ripening into ownership )¹¹⁰

There were many grounds on account of which a litigant became what is called hīna (a losing party) and some times either had his plaint dismissed or his defence struck out and a decree passed against him or he was simply fineḍ For example, Nāṛ. II. 33 speaks of five kinds¹¹¹ of hīna viz. one who changes his state-ments (or pleading), who does not prosecute his pleading by adducing evidence ( i. e. avoids investigation), who does not appear when summoned, who gives no reply, who disappears or runs away when summoneḍ Nāṛ. I. 56–61, II. 24 explain some of these and other hīna partieṣ Kāt. 202 (q. by Sm C. II. p. 47) prescribes that the above five should respectively be fined 5, 10 12, 16 and 20 panas Nāṛ. II. 25 states that in all civil disputes such as those about women, land or debts the litigant does not lose his cause even if he commits a mistake in his statements, but he is liable to fine. This conveys that in disputes arising out of wrath (manyukṛta i. e. in criminal matters) a person loses his cause if he is guilty of the above acts and he is prohibited from pursuing the matter agaiṇ Kaut III. 1, Manu VIII. 53–57 contain in almost the same words, certain similar rules, Kaut calling the several actions causes of parokta ( defeat ). Vide Yaj. II. 16, Śukra IV 5. 136, Kāt. 191–210 for further details on dismissal for default and cognate matterṣ In these cases of hīnavādins, though a fine was imposed, a retrial could be ordereḍ When defendant filed his reply and parties joined issue in court, Br. and Kāt say that they should not then be allowed to compromise the dispute privately without the permission of the court. if they did so they were both to pay double of the fine imposed on a defeated party, as they deprived the king of his dues (court fees). But a compromise with the court’s permission was allowed when the parties were in doubt as to what the witnesses might say or the sabhyas might decide (in such cases it would be wisdom for the parties to compromise) and particularly when the evidence on both sides was evenly balanced or where there was a conflict between the different smṛtis and usages When the reply had been given the sabhyas had to consider the question about the burden of proof. Br.¹¹³ says ‘ the sabhyas after considering the nature of the reply should call upon one of the parties that are in court to establish his case’ (Sm C. II. p 50). What a party sets out to establish is called sādhya and the means whereby the claim (of the litigant) in its entirety is established is called sādhana (Kāt. 213 in V. P p. 79). Yāj. II. 7 and Nār. II 27 say that the party (on whom the burden of proof lies) should immediately (after the reply is given) write down the means whereby he proposes to prove his avermentṣ This third stage (pāda) is called kriyā i. e. proof. Sādhya and kriyā are synonyms, kriyā and sādhana also are synonyms (Kāt. in Aparārka p 616, Vyāsa in Sṃ C. II p 54). The rules about burden of proof are laid down by Hārīta (q in Mit on Yāj II. 7, Aparārka p 616). In a reply of denial, the burden of proof is on the plaintiff, in a reply of former judgment or of a special plea, it is on the defendant and in a reply of admission no question of burden of proof arises Compare also Nār II. 31. The Mit on Yāj II. 80 states another rule that an affirmative proposition has to be proved by him who asserts it (bhāvapratināvādina eva kriyā) Yāj. II. 22, Nār. II. 28-29 and IV. 69, Br. (in Sṃ C. II p. 54), and others say that means of proof are two-fold, human and divine, and that documents, witnesses and possession are the human means of proof (Vaṣ 16. 10 also), while the ordeals of balance and others are divine meanṣ Yāj II. 22, Nār II. 29, Kāt. 217 expressly state that ordeals are to be resorted to only when none of the human means are possible or available. If one party relies on human means alone and the other offers divine means, the king (or judge) has to accept human means and not divine; in disputes among men, if there be human means of proof though reaching ( or covering ) only a portion ( of the allegations in the plaint ) than human means should be accepted and not divine ones even though the latter may cover the whole ground ( Kāt. 218-219 q by Mit. on Yāj. II 22 ). This latter rule is based on the proposition laid down in Yāj. II 20 and Visnudharmasūtra VI. 22 that when a party totally denies a claim and the opponent establishes by evidence a substantial portion of it, the judge may pass a decree against the denying party for the whole of the claim This is practically the same as the maxim 'omnia praesumuntur contra spoliãtoreṃ'¹¹⁴ Therefore the general rule was that the divine mode of proof was to be resorted to only in the absence of any human means of proof. Kāţ. 229 ( q. by Mit on Yāj. II. 22, Aparārka p. 629 ) allows witnesses or ordeals when the dispute is started with reference to sāhasa, assault or abuse and causes that spring from force and Kāţ. 230 ( q in Sṃ C. II. p 51 ) provides that, in the case of a person guilty of sāhasa perpetrated in secret, investigation has to be made by divine proof. Kāţ. 225–228 ( q. by Mit. on Yāj. II 22, Aparārka p. 629, Sṃ C. II pp. 53–54 ) lay down certain rules about preference among the several means of proof: whatever are declared as the conventional usages of the associations of traders, of guilds ( of artisans ) and of groups ( of brāhmaṇas ), the means of proving them are documents and not ordeals nor witnesses; enjoyment¹¹⁵ ( or possession ) alone is weightier in the case of the making and ( the use of ) doors and ways, as also in the case of water-courses and the like ( i. e. in the case of easements ) and not writing nor witnesses; in the case of things promised to be given but not given, when a decision is to be given in disputes of servants with masters, in the matter of taking back a thing after it is sold or when a person having purchased a thing does not pay the price, in gambling and prize fighting–when in these matters disputes arise the means of proof are witnesses and not documents nor ordeals Marici (q. by Sṃ C. II. 60, V. P. p 141) states that as regards the sale, mortgage, gift or partition of immoveable. property a document (should be executed as it) enables the person (in whose favour it is executed) to acquire (clear) title and freedom from doubt ¹¹⁶ (even after the lapse of years) It is in consonance with this that the Indian Legislature (in the Transfer of Property Act, IV of 1882) requires writing and registration as regards the sale, mortgage and gift of immoveable property Nārada IV 75 very concisely hits the special characteristics of each pramāṇa: ‘a document is always strong, witnesses are strong (as evidence) only as long as they are alive, possession becomes strong as time passes’. The comparative strength of the several kinds of evidence is well put by Bṛhaspati ¹¹⁷: ‘Witnesses are superior to inference (circumstantial evidence), a document is superior to witnesses, undisturbed possession for three generations is superior to all these’ Kāt. 221 (q. by Mit on Yāj II 80 and V. P. p. 80) gives the warning that when a litigant abandoning a strong ground or means of proof resorts to a weak one to prove his case, he would not be again entitled to rely on that (strong ground of proof) after the members of the court have decided as to who should succeed This practically propounds the same rule as that of constructive res judicata contained in explanation 4 to section 11 of the Indian Civil Pro Code (of 1908)

The means of proof will now be briefly dealt with in order And first come documents ‘Those in search of an exhaustive treatment may usefully consult Dr Amareshwar Thakur’s ‘Hindu Law of Evidence’ (Calcutta, 1933).

When writing was first employed in India and how the Indian Brāhmī alphabet was derived have been moot points for many decades among scholars Max Muller’s theory (‘History Sanskrit Literature’ p 507) that the use of writing for literary purposes was unknown to Pāṇini was thoroughly exploded by Goldstückor in ‘Pāṇini and his place in Sanskrit Literature’ and was later on abandoned by Max Muller himself Then Bühler (in ‘the Origin of the Indian Brāhmi alphabet’) started the theory that Brāhmi was derived from a foreign Semitic script about 800 B. C. and this hypothesis held the field for a long time (vide e. g. Rhys Davids in ‘Buddhist India’ chapters VII and VIII ). Even Western scholars are not now prepared to accept this dating of Bühler; vide Cambridge History of India, vol. Ip.141 (1922) The excavations at Mohenjo-daro tend to throw grave doubts on this theory and discredit it At Harappa and Mohenjo-daro there is writing (not satisfactorily deciphered yet) on burnt clay and pottery. The Piprahva vase shows writing on stone several centuries before the Christian era and the Sohagpur copperplate inscription is the earliest writing on copper plates yet discovered (vide Annals of B. O. R Institute, Vol XI p. 32 ff) This is not the place to discuss the questions about the origin of the art of writing in India and of the Brāhmi script. It cannot be gainsaid that the most ancient dharmaśāstras refer to writing as well-knowṇ Gaut XIII 4 appears to refer to a witness signing himself as such on a document Vaṣ 16. 10, Viṣṇudharmasūtra VI. 23, Yāj. II. 22 mention likhita (document) as the first means of proof Manu VIII. 51 uses the word karaṇa in the sense of document (arthepavyayamāṇam tu karaṇena vibhāvītam) in VIII. 168 refers to documents obtained by coercion and in IX. 232 to fabricated royal edicts (kūṭaśāsana). Kaut. has a special chapter (IL 10) on royal writings (śāsana), in which he dilates upon the qualifications of the king’s scribe, on the contents of an official document, the good points required in an official missive, on various divisions of writings and on the faults in official writings that are to be avoideḍ In L 11 Kaut. prescribes that the king should hold consultations with absent ministers by sending a letter (patra, a leaf of palm or a piece of birch bark or similar material) and in I. 19 states that consultation by letter (patra) with the council of ministers should be held in the fifth part of the day. In IL 7 Kaut. advises the construction of rooms with shelves for books containing ‘accounts (akṣapaṭalam nibandhapustakasthānam kārayet). Vide also Kaut. IL 21, IL 30, IV. 9, IV. 10 for references to writing in various other connectionṣ Kaut. (III 1) appears ¹¹⁸ to use the word karaṇa in the sense of document and gives a rule which is the same as Yāj. IL 23. Yāj. I. 319 speaks of land grants being written or engraved on cloth or copperplate Megasthenes (McCrindle p. 69) no doubt says that Indians have no written laws, but there is no doubt that he is under some misapprehension as to what he was told, since in another place (p. 83) he refers to philosophers committing useful suggestions to writing. Similarly Strabo (XV. 1 53-54) states that the Indians were ignorant of writing, but (67) narrates that Nearchus states that Indians write letters on cloth. One of the oldest copperplate grants is the Taxila plate of Moga (identified with Moa of the Śakas) and is not later than 120 B. C. Vide E. I. Vol IV. p. 54 and Rapson's 'Indian coins' p. 7. It appears that wooden boards were used for writing ephemeral matters and patra for more permanent use, as Kāt (p. 293, ṇ 400 above) states that the first information was to be written on a board with chalk and the formal plaint on a leaf (patra). The Lalitavistara (10th chap. p. 143, B. I. eḍ) states that the Buddha used a board of sandal-wood for learning the scripts (-candanama yam lipi- phalakām-ādaya ). Yāj. II. 84-94, Nār. IV. 69-75 and 135-146, Br., Kāt. 249-312, Śukra II. 291-318, IV. 172-182 and several digests devote great attention to documentṣ A few salient points only will be brought out here. Nār. (IV. 70-71) eulogises documents by saying that if the Creator had not created writing which is like an excellent eye, the world would have come to grief and that a document is an indubitable means of apprehending the time, the place, the object, the material, the extent and the duration of a transactioṇ Br. (q. in V. P. p. 141) says that, since¹¹⁹ people begin to entertain doubts (about a transaction) even in six months (from an occurrence or transaction) the Creator therefore created in the hoary past letters which are recorded on writing material (patra). The Lalitavistara (about 2nd or 3rd century A. D.) mentions 64 scripts which were known to the Buddha, among which the first is Brāhmī (10th chap p. 143). Nār., Br., and Śukra probably try to explain why the alphabet current in their days was called Brāhmī (it was created by Brahmā). Śukra II. 297, IV. 5. 172 are similar verseṣ The texts divide documents in different wayṣ Viṣṇu¹²⁰ Dh. S. III ] VII. 2 divides documents into three kinds viz. those written before the king (i. e. by public officers), those bearing the superscription of witnesses and those without witnesseṣ The first is a document written in a state office by a scribe appoint- ed by the king and bearing the signature of the head or superintendent of the office. This is just like the registration of documents in modern India. Br. ¹²¹ (q by V. P. p. 141, V. May. p. 24) divides documents into three sorts viz. royal writing, writing made at a fixed place and that written in one's own hanḍ Nāг. IV. 135 speaks of two kinds viz. one written by the executant himself in his own hand and that written by another; (the first of these is valid) without attesting witnesses, while the second requires to be attesteḍ In the former no writer (lekhaka) nor witnesses are necessary, while in the latter both are necessary. Even now in India no deed concern- ing even immoveable property is required by law to be attested except mortgages and giftṣ The author of the Sañgraha, the Mit. on Yāj. II 84 and several others divide documents into rājakīya (public) and jānpada (private or of the common people). The V. Mayūkha (p. 24) says that laukika and jānpada are synonyms and jānpada document is of two kinds viz. written by the executant himself in his own hand and that written by another, and that the first may be without attestation of witnesses, but the other must be attesteḍ On Yāj. II. 22 the Mit. divides documents into śāsana and ciraka. The first is the same as rājakīya (described in Yāj. I 318–320) and ciraka is practically the same as jānpada writing. On Yāj. II. 89 the Mit. remarks that a royal deed must be written in correct and elegant language but a document executed by ordinary people is not required to be in correct Sanskrit, but may be written in the local dialect of the partieṣ Yāj. II. 89 states that a document written by the executant himself in his own hand is authoritative except when it is brought about by force or frauḍ Yāj. II. 84-87 prescribe that a document of debt or the like should be written down by mutual agreement, that the creditor's name should be placed first, that it should mention the year, month, half month, tithi (day), the names, caste, gotras, the Vedic School, the names of the fathers of the parties, that when the writing is finished the debtor should write at the end that the deed is approved by N. N (the execu tant) son of so and so, that an even number (i e not less than two) should attest the document, stating their father's names and that they attest as witnesses and the scribe should write at the end that he wrote the document at the request of both partieṣ If the debtor or any witness cannot write, his signs ture should be made by another in the presence of all witnesses (Nār. q by Mit on Yāj. II 87 and by Vy. Nīr. p. 87 without name). Rājakiya documents are of three kinds (acc. to Br quoted in V P p 141, V May. p. 24) viz. śāsana (a royal grant of land), jayapatra (a judgment deciding a law-suit), prasāda-patra (a deed showing the king's pleasure at the devoted service or bravery of a person); acc. to Vasiṣṭha (q in Sṃ C. II p. 55 and V May p 28) it is of four kinds viz śāsana, jayapatra, ājñāpatra (a royal command addressed to feudatories, high or low officers like the wardens of the marches), prajñāpanāpatra (a writing of request addressed by the king to sacrificial priests, a purohita, teacher, learned brāhmaṇas or other highly honoured persons), it is five-fold acc. to S V pp. 111–113 viz. śāsana, jayapatra, ājñāpatra, pra jñāpanāpatra and prasādapatra. Kaut in II. 10 speaks of seve ral kinds of royal orders and names them, such as prajñāpanā (request by a messenger about what another prays), ājñāpatra (as above), paridāna (honour to the deserving or gift in distress), parihāra (remission of taxes for certain castes or villages by the king), mṛsṛstlekha (writing whereby the king accepts the actions or words of some trustworthy person as his own), prā vṛttika (conveying information about some portentous happen ing or some news about enemies etc.), pratilekha (reply in accordance with discussion held with the king on a message from another), sarvatraga (order addressed to high functionaries and officers for the welfare of travellers). The contents and form of royal grants have been described in H. of Dh. vol. II pp. 860–861. The jānapada writings are divided into various sorts, seven (acc. to Br. q. by Aparārka p 683, Sm C II p. 60) or eight (acc to Vyāsa in Sm C II p. 59) and the Sṃ C. remarks that there is no emphasis on the number and there may be many more varietieṣ Br. (S B. E vol. 33 p 305), Kāt (254–257) and others mention and define the following jānapada writings; bhāga- or vibhāgapatra (deed of partition), dānapatra (deed of gift), krayapatra (sale deed), ādhanapatra or ādhipatra (deed of pledge or mortgage), sthitipatra or saṃvṛtipatra (deed of convention, which is made by the inhabitants of a village or city or the members of a corporation or guild by mutual agreement for settling their conventions), dāsapatra (deed of bondage to serve executed by a person devoid of food or clothing), ṛṇalekha or uddhāṛpatra (bond of debt promising return at a future date with interest), viśuddhipatra (deed of purification given to a person with the attestation of witnesses when a penance for a sin has been performed), sandhipatra (deed of peace when a compromise in the presence of leading people after a charge of the commission of a crime has been made), simāpatra (deed of boundary when a dispute about it is settled), upagata (a receipt passed by the creditor to a debtor on payment of the whole or part of a debt, Yaj II. 93), anvādhipatra (a sub-mortgage i.e. where the mortgages or pledges the property or thing to another and hands over the former deed to his own creditor). The two branches of private documents (jānapada) are either ciraka or not ciraka; ciraka is defined as a document written by hereditary scribes residing in the capital, who are approached by the parties and bearing the signatures of the parties and witnesses and the names of their fathers (Sangraha q by Sṃ C II p 59, Par M III p 127 ). Vide ṇ 437 above and Śukra II. 299-318 and IV. 5.172-177 for definitions of these and other kinds of documentṣ But acc to Vyāsa quoted by Sṃ C. II p 59 private documents are of eight kinds viz ciraka, upagata (a receipt), svahasta (written by the executant himself), ādhipatra, krayapatra, sthitipatra, sandhipatra, viśuddhipatra Some works like the Vyavahārasāra (p 69) and the Mit write the word as ciraka and not cīraka. It was so called (viz cīrakı) probably because it was written on the back (of the bark of the birch or some other tree). If the proper word is ciraka then it was employed because being executed by scribes appointed by the king, it had validity for all time (cīra) as compared with purely private documentṣ ‘Ciraka’ in this last sense seems to be equal to ‘sthānakṛta’ of other writerṣ Nār. ¹²² IV. 136, Viṣṇu. Dh. S VII. 11 and Kat. (252) require that a document is held valid which is not adverse to the custom of the country, the contents of which follow the rules regarding pledges (and other transactions) and the sequence of the sense and of the words in which is not contradictory or confusing. Sm C. II. p. 59 applies the word ¹²³ pañcārūdha (on which five are recorded) to documents that are signed by the creditor, the debtor, two witnesses and the scribe. The Sarasvatīvilāsa p 114 holds that pañcārūdhatva consists in having the creditor, debtor, witnesses (as one item), scribe and the matter to be writteṇ Hārīta and Vyāsa (q in Sṃ C. II. p. 59) employ the dual (sākṣinau), while Yāj II. 87 employs the plural. Therefore ordinarily two witnesses sufficed, but in very important writings there should be more witnesseṣ Viśvarūpa reads ‘asamāh’ in Yāj. II. 87 and requires three witnesses as the minimuṃ Nār. IV. 137, Viṣṇu¹²⁴ Dh. S VII. 6–10, Br. (S. B. E. vol 33 p. 307 v. 23.), Kāt. (271) state that a document is invalid that is executed by a person intoxicated, by one already charged (with an offence), by a woman, a minor, that has been brought about by threats or deceit or coercion, by one dying, by one diseased, by a lunatic, or by those that are dependent. Viṣṇu Dh. S. (VII. 8–9) and Kāt. 273 (q by V. M. p. 338, Aparārka p. 686, Par. M. III. p. 131) state that a document may be held invalid owing to defects in the witnesses or in the scribe or to the fraud of the creditor or executant.

Nār. IV. 145, Kāt. (306–307), Saṁvarta (both quoted by Aparārka pp. 691–692) and Br. (S. B. E. 33 p. 309 verse 31) say that no oral evidence should be allowed to contradict the (terms of a) document, that the mode of proving (a matter) by document is always superior, that a writing can be refuted or superseded only by another document relating to the same matter and not by the oaths of witnesses and that if oral evidence III

were allowed to overrule the force of documents there would be confusion and an end to all written transactions⁴⁴¹. If there is a conflict among documents then a jānapada document (written by a scribe and attested) is superior to one written in the hand of the executant himself and a public document is superior to a jānapada one (Vyāsa q. by Sṃ C. II p 66 S. V p 122 ).

Yāj. II. 91, Nār. IV. 146 and Kāt. 312 (q. by Aparārka p. 687) prescribe that when a document is in another country or when it is illegibly written, when it is lost or its letters have become indistinct (by lapse of time or other causes) or it has been stolen or is crushed or burnt or shattered into pieces, another document may be caused to be written (if both parties agree), but if they do not agree and the contents have to be proved or if the executant denies his signature, then Nār. IV. 142 and Kāt. (282 q. by Sm C II p. 63 ) say that time may be given to bring it from the foreign country or the contents may be proved by the evidence of the attesting witnesses or of the scribe or of those that have seen it. This shows that the smṛti law required the produc- tion of the document itself as primary evidence, but allowed secondary evidence only in exceptional cases ⁴⁴² If a document belonging to one man is produced by another the latter has to explain his custody of it⁴⁴³ (Vyāsa q. by Aparārka p. 690, Sṃ C. II. 66). Kāt. (308 q by Sṃ C.II. p. 65) says⁴⁴⁴ that just as the reflec- tion of a person or thing made in a mirror is seen as if it were real though it is unreal, so clever people can fabricate documents resembling (the genuine writing of a person). Vyāsa (in Aparārka p. 688, Sm C. II. 65 ) and Br. (S. B. E vol 33 p. 307 vv. 20-21) say the same thing and add that documents have to be carefully scrutinized and that no certain conclusion can be established by documents alone (in every case), that women, minors and illiterate persons are deceived even by their relatives by the fabrication of documents bearing the names of these (women and others) and that this has to be investigated with skill. When there is a doubt about the genuineness of a document, it can be established by comparison with other documents admitted to be written or signed by the same person, by ratiocination, by the probability of the two parties being together at the time of the transaction, by citing the attesting witnesses,¹²⁹ by the peculiarities or flourishes in writing certain letters or making certain signs (in the writing questioned and in other admitted writings), the previous transactions between the par-ties (or their subsequent conduct), and the source of the acquisition of the subject matter in dispute (Yāj II. 92, Viṣṇu Dh. S. VII. 12, Nār. IV. 143-144, Kāt 283 q. in Mit. on Yāj II. 92). Viṣṇu Dh. S. (VII. 13) and Kāt.¹³⁰ 285-286 (q by Aparārka pp. 689-690) prescribe that if the debtor, creditor, witnesses or the scribe be dead the authenticity of the document has to be ascertained by (a comparison of the signatures on the disputed document) with other specimens of their handwriting or signatures or other documents executed by the debtor. Kāt 287 (q. by Aparārka p. 689, Sṃ C. II. p. 64 and Par. M. III p. 134) states the striking¹³¹ rule that when a document bears the royal seal, that document is presumed to be authentic, even though all the three (viz. the debtor, the witnesses and the scribe) are deaḍ This shows that documents bearing the king's seal or that of royal officers were regarded as prima facie genuine and this rule is analogous to the provisions in sec 79 of the Indian Evidence Act and sections 59-60 of the Indian Registra-tion Act. That even copperplate grants were sometimes forged is clear from the reference in the Madhuban plate of Emperor Harsa ( E. I. VII. p. 155, 158), and from the Tārāchandi Rock Inscription (in Bihar) of Mahānāyaka Pratāpadhavaladeva (in E. I. XX. Appendix No. 340 ) of saṁvat 1225 which declares that a certain copperplate purporting to be issued by Vijayacandra of Kanoj was forgeḍ Vide Fleet in I. A. vol. 30 pp. 201-223 for many forged grantṣ Verses (variously attributed to Kāt. or Bṛhaspati by the digests ) state that when a loan (recorded in a document ) has not been expressly claimed by the creditor able to claim from a debtor who is able to pay off and who is at hand, the document loses its validity because a suspicion arises that the debt has been paid off and that a document executed more than thirty years before which has never been seen ( by any body ) nor read out ( by the creditor to any body ) does not attain validity even though the witnesses on it are living. Nār. IV. 141 is very similar to this last. Kāt. 298-299, 301 (q by Par. M. III. 136, Mit. on Yāj. II. 24, Aparārka p. 690-691) prescribe that if no objection is raised for twenty years as regards a patent fault in a document of debt or pledge or of the settlement of boundaries, then the document ceases to be voidable Kāt. 275 and Br. ( S. B. E vol. 33 p. 302 v. 25 ) both quoted by Aparārka p. 671 and V. P. p 122 require that the latent defects in documents or witnesses must be declared (pointed out) by the disputant at the ( proper ) time ( i. e. when they are produced ), while patent defects may be considered by the sabhyas at the time (of the consideration of the evidence) by reference to the rules of the śāstra. Yāj. II 93-94, Viṣṇu Dh. S. VI. 25-26¹³² prescribe that when a debtor pays part of a debt, the debtor should write on the back of the document how much he paid or the creditor may hand over to the debtor a writing of receipt signed or written by himself, particularly when the original document is not at hand, and when the whole debt is paid or the contract is fully performed the creditor should tear off the document or should execute another document in order to make clear the fact of satisfaction

The fabrication of royal edicts and private documents was so much condemned by the sentiments of society that Manu IX. 232 and Viṣṇu Dh. S V. 9–10 prescribe the extreme penalty of death for such offences as in the case of the murder of women, minors and brāhmaṇaṣ Yāj. II 295 (= Matsya 227. 202 ) prescribes the highest fine for him who adds to or writes less than what was intended to be declared in a royal grant or edict. Śānkha also prescribes death or the excision of a limb for fabrication of documents (q. by V R. pp. 298, 369 ). For detailed treatment about documents in ancient and medieval India two papers in the Annals of B. O. R. Institute, vol. IX. pp 49-81 and in the Journal of the Andhra Historical Society, vol. 18 pp 203-232 may be consulted