The Legal system in ancient India
"In some respects the judicial system of ancient India was theoretically in advance of our own today."- John W. Spellman
Abstract: The ancient Aryan rulers of India were confronted by political, economic, and social problems in many ways similar to those with which modern British statesmen and social reformers are struggling, and their solutions of them, according to all the evidence of history, were much more satisfactory to the people at large than any which modern Europe has found. The freedom and general happiness attained by the people of Great Britain with the help of Parliamentary institutions and the richest revenues of the world can hardly be compared with that which Indians within the Aryan pale enjoyed both before and after the fifth century A.D.—the time which we regard as Dark Age. The Indo- Aryan constitution, built up by the highest intelligence of the people upon the basis of the village communities, and not wrung from unwilling war-lords and landlords by century-long struggles and civil war, secured to the Indian peasant-proprietor not only the ownership of the land, but very considerable powers of self government. From 300 A.D to 1192 A.D India is said to worlds most developed country, its GDP was equivalent to 25% of worlds GDP, followed by China which had 15% share in World GDP. This tremendous development is impossible without very sound justice dispensing system during that Golden age, to the contrary some Historians and Foreign Jurists opined that there was no ‘rule of law’ in ancient India, if so what was the system of Justice Administration that was in existence during that day and which ‘norms’ (Laws) of ancient Indian society contributed to attainment such highest stage of Human Civilization. To answer these prepositions it is necessary to go beyond western distortions about India and conduct impartial inquiry of surrounding social facts recorded in old texts.
Key Words: Dhrama, Vyavahára, Charitra, Rájasásana, puranas, smiritis, surtis, prang-nayya, paraadivivaka or adhyaksha, danda, sabhasada, Sabhyas, samstha, Arthai-vivada, Himsa samudbhava vivada, divyas, sabhyas, etc .
History of Judicial system in India can be classified in to III stages, (i) Judicial System in ancient India i.e Pre-Islamic invasion (ii) Judicial System in Medieval Age (iii) Judicial System in British Rule. For our discussion we shall take first stage.
India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree. But before describing the judicial system of ancient India I must utter a warning. The reader must reject the colossal misrepresentation of Indian Jurisprudence and the legal system of ancient India by certain British writers. I shall give a few specimens. Henry Maine described the legal system of ancient India "as an apparatus of cruel absurdities". An Anglo-Indian jurist made the following remark about what he called "the oriental habits of life" of the Indians before the British turned up in India: "It (British rule in India) is a record of experiments made by foreign rulers to govern alien races in a strange land, to adapt European institutions to Oriental habits of life, and to make definite laws supreme amongst peoples who had always associated government with arbitrary and uncontrolled authority." Alan Gledhill, a retired member of the Indian Civil Service, wrote that when the British seized power in India, "there was a dearth of legal principles." For Bernard Cohn, the ancient constitution rendered Indian history as antique, static and theocratic.
These statements are untrue. It is not for me to guess why they were made. They may be due to sheer ignorance, or imperialist self-interest, or contempt for Indian culture and civilization which was a part of the imperialist outlook which dominated British Jurists, historians, and thinkers in the heyday of imperialism. But the effect of this misrepresentation, which has few parallels in history, was to create a false picture of the Indian judicial system both in India and outside. These are the words of Hon’ble Justice S. S. Dhavan High Court, Allahabad; it is true that Legal System in ancient India was much better and matured that, impartial English Historians themselves admitted its superiority. Whereas others as mentioned above, in their utter ignorance or with a view to defy Indian culture and thereby dominate Indian civilization distorted, by creating false impression as to social conditions of pre-British India.
1.2. Judicial System in Ancient India
The concept of Dharma that ruled Indian civilization, from Vedic period up to Muslim invasion from King to his last servant everyone was bound by Dharma, The word Dharma is derived from "dhr" to mean to uphold, sustain or nourish. The Seers often use it in close association with ‘rta’ and ‘satya’. Sri Vidyaranya defines ‘rta’ as the mental perception and realization of God. The Taittiriya Upanishad also uses it with ‘satya’ and ‘dharma’. It exhorts students to speak the truth and practice dharma (Satyam vadha: Dharmam chara). According to Sankara Bhagavatpada ‘satya’ means speaking the truth and ‘dharma’ means translating it (Satya) into action.
In this regard, the explanation given by Sri.K.Balasubramania Aiyar is relevant: "An analysis of the significance of these three words (rta, satya and dharma) brings out clearly to us the fundamental basis of dharma as the ideal for an individual. While ‘rta’ denotes the mental perception and realization of truth and ‘satya’ denotes the exact true expression in words of the truth as perceived by the mind, dharma is the observance, in the conduct of life, of truth. In fact, dharma is the way of life which translates into action the truth perceived by the man of insight as expressed by him truly. In short, ‘rta’ is truth in thought, ‘satya’ is truth in words and ‘dhrama’ is truth in deed."
Manusmriti written by the ancient sage Manu prescribes ten essential rules for the observance of Dharma: Patience (dhriti), forgiveness (kshama), piety or self control (dama), honesty (asteya), sanctity (shauch), control of senses (indraiya-nigrah), reason (dhi), knowledge or learning (vidya), truthfulness (satya) and absence of anger (krodha). Manu further writes, "Nonviolence, truth, non-coveting, purity of body and mind, control of senses are the essence of Dharma". Therefore dharmic laws govern not only the individual but all in society
Dharma is generally mean ‘principle of righteousness’ or ‘duty’, principle of holiness and also the principle of unity. Yudhishthira says in his instructions to Bhishma that whatever creates conflict is Adharma, and whatever puts an end to conflict and brings about unity and harmony is Dharma. Anything that helps to unite all and develop pure divine love and universal brother hoodness is Dharma. Dharma advocates if the Paramatman is to draw us unto himself we must, without fail; perform our duties to him as well as to the world. It is these duties that constitute what is called dharma. Again, it is dharma that serves us when we dwell in our body and when we cease to dwell in it. It serves us in life and afterlife. There need be no doubt or confusion about the dharma we ought to follow. We are all steeped in the dharma that our, great men have pursued from generation to generation. They have inwardly realized eternal beatitude and we know for certain that they lived without any care, unlike people in our own generation who are always discontented and are embroiled in agitations and demonstrations of all kinds. All we need to do is to follow the dharma that they practiced. If we tried to create a new dharma for ourselves it might mean trouble and all the time we would be torn by doubts as to whether it would bring us good or whether it would give rise to evil. It is best for us to follow the dharma practiced by the great men of the past, the dharma of our forefathers. It does not mean that ‘Dharma’ is immutable; ‘Dharma’ has to two aspects one ‘Sanatana Dharma’ another is ‘Yuga Dharma’ later is valid one for an age. The Smiritis themselves recognize this principle of social change, Manu says, “There is one set of dharma for men in the kritayuga; a different set for each of tretayuga, dvapara and kaliyugas; the dharma change according to the change of yuga. “The Hindu (i.e Sanatana Dharma) view makes room for essential changes. There must be no violent break with social heredity, and yet the new stresses, conflicts and confusions will have to be faced and overcome; while the truths of spirit are permanent the rules change from age to age”.
Dharma is unique blend of rigidity and flexibility it protects eternal principles and accepts continued valid traditions, Shurtis stands for universal, eternal, and fundamental principles and Smiritis stands for a group of values derived from these principles and finding their expression in limited, temporary and relative field of social life. Swami Vivekananda said, “We know that, in our books, a clear distinction is made between two sets of truths. The one set is that which abides forever, being built on the nature of man, the nature of soul, the souls’s relation to God and so on. The other set comprises the minor laws, which guide the working of our everyday life…… They belong more properly to the puranas, to the Smiritis, and not the shruti…..custom of one age, of one yuga, have not been the customs of another, and as yuga comes after yuga they will have to change”.
Henry Maine classified Indian Society and its legal system as ‘Static’, this is because of his utter ignorance he might have relied his counterpart’s explanation (distorted) rather than understanding Indian Society as it stood, in India the King himself was subject to the law; that arbitrary power was unknown to Indian political theory and jurisprudence and the king’s right to govern was subject to the fulfillment of duties the breach of which resulted in forfeiture of kingship; that the judges were independent and subject only to the law; that ancient India had the highest standard of any nation of antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today; that the Indian judiciary consisted of a hierarchy of judges with the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with the power to review the decision of the Courts below; that disputes were decided essentially in accordance with the same principles of natural justice which govern the judicial process in the modern State today: that the rules of procedure and evidence were similar to those followed today; that supernatural modes of proof like the ordeal were discourage; that in criminal trials the accused could not be punished unless his guilt was proved according to law; that in civil cases the trial consisted of four stages like any modern trial – plaint, reply, hearing and decree; that such doctrines as Res Judicata (prang nyaya) were familiar to Indian jurisprudence; that all trials, civil or criminal, were heard by a bench of several judges and rarely by a judge sitting singly; that the decrees of all Courts except the King were subject to appeal or review according to fixed principles; that the fundamental duty of the Court was to do justice "without favor or fear".
1.2.1. Rule of Law in Ancient India
The British while justifying their colonial rule in India claimed Indians lacked civilized system of self rule and their presence in this country gave India a sense of justice and Rule of law. Many Indians today held these views in their heart. These views are not only incorrect but they are blatant lies. In fact there was no match for Rule of law that existed in ancient India; even Englishman’s Rule of Law looks too conservative before that lofty ideal of ancient Indian rule of law. In the Mahabharata, it was laid down "A King who after having sworn that he shall protect his subjects fails to protect them should be executed like a mad dog."
"The people should execute a king who does not protect them, but deprives them of their property and assets and who takes no advice or guidance from any one. Such a king is not a king but misfortune." Kautilya describes the duties of a king in the Arth-shastra thus : "In the happiness of his subjects lies the King’s happiness; in their welfare his welfare; whatever pleases him he shall not consider as good, but whether pleases his people he shall consider to good."
It is ironical, that in a country where ‘King can do no wrong’ principal is in existence, how dare they may be to conclude Indian ancient legal system is full of absurdities,
The so-called progressive politician, who treats Indian history as a book no longer read, tells us that we must look forward and not backward; that we can no longer build as Akbar built; that India can gain little or nothing by studying her own past; that East must be west and forget that she was East. Pretending to be a real with a scientific political programme based upon actualities, he is ignorant of the fundamental economic and social conditions by which a prudent and far-seeing State policy must be governed and blind to the things of everyday Indian life which pass before his own eye. The logic of history, ancient or modern, Indian or European, is lost upon him…………. The British factory-hand and dweller in city slums sings when he goes to war because war is for him a release from servitude and misery often far more degrading than the Indian caste system at its worst. He does not sing in times of peace. He is then chained down to a daily life in which there is no joy or freedom—the slavery of modern industrialism. He struggles vainly to free himself from it by the organization of trade unions, and only adds to the political machine another form of tyranny which often is a menace to the whole imperial fabric8. This what the observation made by great English Historian E.B. Havell.
In the heyday of imperialism defying observation were made about Indian Legal system by some the European Historians, Prof. J.S.Patil in his discourse always reminds us, that Historians of Europe always used to see India through their English glasses, for this reason there observations remained far from reality. In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publicly that the exercise of power is legally valid and socially just.
1.2.2. Judiciary in Ancient India
Sacred law (Dharma), evidence (Vyavahára), history (Charitra), and edicts of kings (Rájasásana) are the four legs of Law, of these four in order: the later is superior to the previously mentioned. Dharma is eternal truth holding its sway over the world; Vyavahára, evidence, is in witnesses; Charitra, history, is to be found in the tradition (sangraha), of the people; and the order of kings is what is called sásana (legislations). These principles of were administered by Court, in ‘Sangrahana’, ‘ Karvatik’, ‘Dronamukha’, and ‘Stháníya’, and at places where districts meet, three members acquainted with Sacred Law (dharmasthas) and three ministers of the King (amátyas) shall carry on the administration of Justice. ‘Sangrahana’ is centre for 10 villages, ‘Karyatik’ for 200 Villages, ‘Dronamukha’ for 400 villages and ‘Sthaniya’ for 800 villages. This arrangement of judiciary suggests that there were sufficient number of Courts at different levels of administration, and for district (Janapadasandhishu) there were Circuit Courts. My
In villages, the local village councils or Kulani, similar to modern panchayat, consisted of a board of five or more members to dispense justice to villagers. It was concerned with all matters relating to endowments, irrigations, cultivable land, punishment of crime, etc. village councils dealt with simple civil and criminal cases. At higher level in towns and districts the Courts were presided over by the government officer under the authority of King to administer the justice. The link between the village assembly in the local and the official administration was the head man of the village. In each village, local head man was holding hereditary office and was required to maintain order and administer justice, he was also a member of village council he acted both as the leader of the village and mediator with the government.
In order to deal with the disputes amongst member of various guilder or association of trader or artisans,(sreni), various corporations, trade bills, guilds were authorized to exercise an effective jurisdiction over their member. These tribunals consisting of a president and three or five co-adjutors were allowed to decide their civil cases regularly just like other Courts. No doubt, it was possible go in appeal from the tribunal of the guild to local Court, then to Royal judges and from this finally to the King but such situation rarely arises. Due to the prevailing institution of joint Family system Family Courts were also established, ‘puga’ assemblies made up of groups of families in the same village decide civil disputes amongst the family members.
1.2.2. (a) Grounds of Litigation:
Manu mentions following grounds on which litigation may be instituted, (1) Non-payments of debts; (2) deposits; (3) sale without ownership; (4) partnership; (5) non-delivery of gifts; (6) non-payment of wages; (7) Breach of Contract; (8) cancellation of a sale or purchase; (9) disputes between owners and herdsmen; (10) the law on boundary disputes; (11) verbal assault; (12) physical assault; (13) theft; (14) violence; (15) sexual crimes against women; (16) law concerning husband and wife; (17) partition of inheritance; and (18) gambling and betting.
According to Brihaspati Smiriti, there was a hierarchy of Courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher Court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s Court. The jurisdiction of each was determined by the importance of the dispute, the minor disputes being decided by the lowest Court and the most important by the king. The decision of each higher Court superseded that of the Court below.
According to Vachaspati Misra, "The binding effect of the decisions of these tribunals, ending with that of the king, is in the ascending order, and each following decision shall prevail against the preceding one because of the higher degree of learning and knowledge".
1.2.2. (b) Duties and manners: to be observed by the king in administration of justice were very clearly laid down in Sacred Texts, Manu’s code says, a king, desirous of investigating law cases, must enter his Court of justice, preserving a dignified demeanour, together with Brahmans and with experienced councilors. There, either seated or standing, raising his right arm, without ostentation in his dress and ornaments, let him examine the business of suitors. Manu cautions King by saying, “Justice, being violated, destroys; justice, being preserved, preserves: therefore justice must not be violated, least violated justice destroys us”. Further he opines ‘the only friend of men even after death is justice; for everything else is lost at the same time when the body (perishes)’. If judicial system fails to dispense justice Manu says that, one quarter of (the guilt of) an unjust (decision) falls on him who committed (the crime), one quarter on the (false) witness, and one quarter on all the judges, one quarter on the king.
As the duty of a king consists in protecting his subjects by dispensing justice its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal scepter (danda) in vain. It is power and power (danda) alone which, only when exercised by the king with impartiality and in proportion to guilt either over his son or his enemy, maintains both this world and the next. The king who administers justice in accordance with sacred law (Dharma), evidence (vyavahára), history (samsthá) and edicts of kings (Nyáya) which is the fourth will be able to conquer the whole world bounded by the four quarters (Chaturantám mahím). A king who properly inflicts punishment prospers with respect to those three means of happiness; but if he is voluptuous, partial, and deceitful he will be destroyed, even through the unjust punishment, which he inflicts. Manu felt that the judicial administration should not rest in the hands of a feeble minded king. If judicial administration were given to such a king he would destroy the whole country. Punishment cannot be inflicted justly by one who has no assistant, (nor) by a fool, (nor) by a covetous man, (nor) by one whose mind is unimproved, (nor) by one addicted to sensual pleasures.
1.2.2. (c) Jury system:
It is found that jury system existed in Manu’s period and Manu recommended the king to give the power of judicial administration to Brahmins in his absence. Jurors were called as ‘sabhasada’ or councilors who acted as assessors or adviser of the King. They were the equivalent of the modern jury, with one important difference. The jury of today consists of laymen- "twelve shopkeepers"-whereas the councilors who sat with the Sovereign were to be learned in law. Yajanvalkya enjoins: "The Sovereign should appoint as assessors of his Court persons who are well versed in the literature of the law, truthful, and by temperament capable of complete impartiality between friend and foe."
These assessors or jurors were required to express their opinion without fear, even to the point of disagreeing with the Sovereign and warning him that his own opinion was contrary to law and equity. Katyayana says: ‘The assessors should not look on when they perceive the Sovereign inclined to decide a dispute in violation of the law; if they keep silent they will go to hell accompanied by the King." The same injunction is repeated in an identical verse in Shukr-nitisara. The Sovereign-or the presiding judge in his absence-was not expected to overrule the verdict of the jurors; on the contrary he was to pass a decree (Jaya-patra) in accordance with their advice. Shukr-nitisara says: "The King after observing that the assessors have given their verdict should award the successful party a decree (Jaya-patra)." Their status may be compared to the Judicial Committee of the Privy Council which "humbly advises" their Sovereign, but their advice is binding. It may also be compared to the peoples’ assessors under the Soviet judicial system who sits with the professional judge in the People’s Court but are equal in status to him and can overrule him. However, if the decision of the Sabhyas (Judge) were fined and removed from the post, banished their property was also forfeited. They compelled to make good the loss. If the decision of Sabhyas is promoted by greed, fear, friendship, etc each one was fined twice.
1.2.2. (d) Judicial Psychology
Manusmriti has specified the part of the judge’s function to probe the heart of the accused and the witness by studying their posture, mind and changes in voice and eyes. Chapter VIII, 25 (Para) - By external Signs let him discover the internal disposition of men, by their voice, their colour, their motions, their aspect, their eyes, and their gestures. 26 (Para) - The internal (working of the) mind is perceived through the aspect, the motions, the gait, the gestures, the speech, and the changes in the eye and of the face. This is unique it is the only ancient legal text which is the first code of law to take account of judicial psychology. It is further held that his flattering voice, licking the corner of his lips, speaking incoherently, loss of colour of his face and frequent coughing indicate the probability of his untruthfulness in the eyes of the Mitaksara of the Yajanvalkya Smriti.
1.2.2. (e) Law Relating to Witnesses
In ancient India to hearsay was not allowed, but a witness in a foreign country can give his evidence in writing before a learned man in the three Vedas and the writing sent by him may be read in the Court. As regards the number of witnesses, it is said that this number may be, 2, 3, 4, 5, 7, or 9. But a single witness is not accepted. But Narada Smrti states that a single witness may be accepted, if it is approved by both the parties. Kautilya states that a single witness can be accepted, if the very transaction has taken in secret.
Qualifications for witness, he should be a man of good character, trustworthy, knows Dharma and acts up to it. Witness from the same caste is to be prepared, and in cases relating to women a woman can be witness. As regards the nature of incompetent witnesses, it may be said that the persons having no faith in the Dharma, the persons who are very old persons, minors, oil presser, intoxicated person, lunatic, distressed, inattentive, undertaking long journeys, gambler etc.
Narada further gives us five-fold classification of incompetent witnesses, (1) the learned Brahamanas, and ascetics practising austerities. (2) Thieves, robbers, gamblers (3) witnesses are to be rejected on the ground of contradiction in their evidence (4) one who comes of his own accord for leading an evidence is also treated as incompetent, (5) When a person dies, he names some persons as witnesses for the transaction, they can come as witnesses and the person who is informed by the parties in a general way and not in a specific way is not to be admitted as a witness. Ordinarily the witnesses are to be examined in the presence of the parties and never behind their back. Further, a witness should be examined by his tone, change of colour, eyes gestures etc
The judge should address a Brahmana witness by ‘speak and swear by veracity’. He should address the Ksatriya witness as speak the truth and he should swear by the animal he rides and his weapon. A Vasisya should swear by kine, gold, and grian and a Sudra should swear by all grave sins. The view of majority witnesses shall be prepared, in case where there is no majority opinion is possible, and then the quality of statement made by the witnesses is to be taken into consideration. The claim is not said to be established when witnesses depose more or less than that mentioned in the statement or pliant of plaintiff and the disposition has not taken place at all and in such a case no fine is to be imposed. When there is conflict among the witnesses as regards time, place, property, amount, then the dispositions are as good as not taken place. Generally no ordeals (divyas) are to be resorted to when the witnesses are available. The oaths are to be employed in the disputes of small value and the ordeals are to be resorted to in serious disputes of crimes.
Punishment for false witnesses, (a) where a witness denies deposing in the Court matter, after giving promise to that effect along with other witnesses, (b) if for unfavourable circumstances, a witness denies to depose, (c) if a witness gives false evidence frequently, in all these cases witness shall be punished with fine and in last case physical punishment can also be imposed on such witness.
1.2.2. (f) Classification of Vivada (disputes)
Apart from 18 subject matters of legal proceedings (as classified by Manu), distinction has been made between Artha-Vivada (civil dispute) and Himsra samudbhava Vivada (criminal disputes), amongst criminal dispute there are 4 sub division (i) Danda Parusya (assault and battery) (ii) Vak- Parusya (Defamation) (iii) Sahasa (Murder and other violation) and (iv) Strisangrahana (adultery). A cause of action arises when a person, being harassed in a way contrary to the rules of Smriti and usage, lodges a complaint. The judicial proceedings usually comprise four parts, namely complaint, reply, evidence and judgment. Replies can probably be of four kinds, and these are admission, denial, a special plea, relating to a former judgment. Three types of evidences are mentioned namely document, possession and witness. As regards the rules for summoning, it is evident that the opponent or the defendant, against whom the suit is filed, must be summoned to the Court. (2) Even other persons connected with the defendant (in the suit) may also be summoned. (3) When, however, some persons like soldiers, Agriculturists, cowherds etc. are fully occupied with their work, their representative may be allowed to appear before the Court, as held by the Narada Smriti. (4) In serious matters, however, the persons are allowed to appear in person before the Court, particularly with proper safeguards (5) in more serious matters like Murder of Woman, Adultery with her, as held by the Mitakashara on the Yajanvalkay Smriti no representative is allowed. But in such matters, the concerned must appear before the Court (6) it should be noted that the presence of some persons like the deceased, very old (more than Seventy years old), persons in calamities, engaged in religious rites, in king’s duties, a woman whose family is in bad condition, is actually condoned. (7) If, however after serving the summons defendant fails to come before the Court the King should wait for 30 days or 15 days and pass the Judgment in favour of the plaintiff. (8) But if there is an invasion by enemy or famine, or epidemic, than the King should not fine the defendant who is thus prevented from coming to the Court (9) However agents can be allowed to represent on behalf of his disabled Master.
1.2.2. (g) Representation by lawyer: the question also arises whether in ancient India, the system of lawyers is allowed or not. The views of Narada, Katyayana and Brhaspati show that the skilled help was required in the litigations. The commentary of Asahaya on the Narada Smrti indicates that those who are well- versed in the Smriti literature could afford help for monetary consideration to the parties that have appeared before Court. (Which is also recognized in C. P. C .1908 Order III Rule 2). Fees of such skilled persons were also fixed and he was appointed by parties not by Court.
1.2.2.(h). Interpretation of Legal Documents:
Artha Shastra and Manu Smriti are considered as significant treatises as far as the legal system is concerned. In ancient Indian societies, an independent school of legal practices existed. Some general principles in connection with the judicial proceedings state that in case of disagreement between two texts of Smriti, justice according to usage is to be followed. In case of conflict between a text of Smriti associated with the dharma and one relating to artha, the former prevails. The former one sets rules regarding things unnoticed or otherworldly, while the latter one is more concerned with everyday matters.
Judges were required to decide cases, criminal and civil, according to law (samyak, yath-shastram, shastro ditena vidhina). This involved interpretation of the written text of the law- a task which created many problems such as the elucidation of obscure words and phrases in the text, reconciliation of conflicting provisions in the same law, solution of conflict between the letter of the law and principles of equity, justice and good conscience, adjustment of custom and smritis, and so on. This branch of law was highly developed and a number of principles were enunciated for the guidance of the Courts. The most important of them related to the conflict between the dharm-shastra and the artha-shastra.
Three systems of substantive law were recognized by the Court, the dharma-shastra, the arth-shastra, and custom which was called sadachara or charitra. The first consisted of laws which derived their ultimate sanction from the smritis and the second of principles of government. The border line between the two often overlapped. But the real distinction between the smritis and arth-shastra is uniformly secular, but that of the dharma-shastra not always so. In fact so remarkably secular is the arth-shastra in its approach to the problems of government that this has induced some writers to advance the theory that the artha-shastra (literal meaning: the science of ‘artha’ or pursuit of material welfare), did not evolve from the dharma-shastra but had an independent origin and developed parallel to it.
Legal system in ancient India also includes adverse possession and different modes of acquisition. Adverse possession grants right to the possessor if the owner who, even while seeing his property adversely possessed, does not raise any objection. A permanent property vests in the person adversely possessing it for 12 years without any objection from the owner. In case of movables, the period is ten years. The suitable modes of attainment of a property are purchase, gift etc. Generally acquisition, by a valid mode, is stronger proof than possession. Acquisition, without even slight possession, is not valid. A mortgage vests in the mortgagee if it is not redeemed even after the principal amount is doubled. A mortgage, with a time-limit, lapses after the expiry of that time.
The British while justifying their colonial rule in Indian claimed Indians lacked civilized system of self rule and their presence in this country gave India a sense of justice and rule of law. Many Indians today hold these views in their heart. These views are not only incorrect but they are blatant lies. The British supplanted ancient Indian law and introduced in its place their own system of law. One has to understand that this was not a simple change of laws but was the imposition of a totally alien philosophy, understanding of human nature, belief system, and way of life and concept of polity. This was and is a mismatch. Both Civil as well as Criminal Law administration during British regime is worse and blind observance of which even after independence is more than worse.
There were multiple reasons why British Legal System is not suitable to India,
2.1 Present Legal System had its origins in the dominant philosophy of Britain of those days. It is based on the notion of an Austinian state, where a single monarch or a power had all the power which was indivisible. All powers devolved from top down. That was the structure of the modern nation state that the British were familiar with. So there was centralization of legislative authority and executive authority. Seeing a region with multiple states was itself a shock to them having come from a unitary one. On top of it to have multiple legal systems, where different castes and religions had their own institutions was quite alien to them. So one of the things they tried to bring is certainty and uniformity in the law; certainty and uniformity in the judicial and legal institutions they created. That homogenization itself was a major shock to Indians. The judicial system is one part of the legal system. A legal system would involve all the laws, norms, standards that are laid down to determine what is right or wrong, correct or incorrect. It would also involve all that goes to enforce the legality: that is the Courts, police, jails etc.
2.2 It was profoundly disturbing to the Indian masses that they set up these specialized Courts manned by people trained in law with so called independent judges. That itself was a cultural shock for the people of India, because till that time, if you look at the existing dispute resolution systems, typically at the village level, one had the Panchayat system. Panchas would be notables who would be known locally. They were not appointed by state as we understand today. By the British yardstick they would not be ‘independent’ as they would be members of the community. The idea of an independent judge comes from Anglo-Saxon jurisprudence and it requires that the judge’s mind is a tabula rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which is ‘relevant’ to the dispute. The medium by which the judge appreciates facts or the evidence is through the two lawyers representing either side. What they bring into the Court largely determines the final outcome. So who should be allowed to address the Court; complex rules of evidence concerning who could step into the witness box; what matters can be addressed and so on, became very important. For example, unless one’s own eyes or ears had seen or heard the transaction, one could not testify and one could testify only with regard to that particular transaction. Whereas in the panchayat, which was held in the open, anybody who had even fringe knowledge could speak. They did not have to go through this filter of ‘is this relevant, are you worthy’. Therefore you had a sense of participation and anybody could speak. With the new system however, one had a judge who was not known to the parties, which was seen as virtue in the English system but was alien to Indians; it goes without saying that the language of the Court was English and one had to hire a lawyer and so on. The new Courts had very strict rules of relevancy. Many of these continue till today. Thus new Courts with their very specialized rules of evidence which were manned by very technical judges, and where you would have to place your full faith in the vakeel, who alone would be the voice that would speak in the Court, made the system inaccessible to Indians. Thus, in all these area: the choice of the judge, who could testify, regarding what they could testify, the location of the Court and so on, all these things were alien and the process alienating. In the old panchayat, even if you were not of the ‘high caste’, you could sit or stand up. Further Judgment today’s Courts is in ‘Yes’ or ‘No’ form, whereas, the panchayats always negotiated, with no clear winner or loser. Panchayats were willing to find a mid-ground so that all could save face. People were used to that system, where you would not lose everything but some form of justice would be done. So that you did not have a win-lose but a win-win situation. In Panchayat system the solution gave a lot of discretion to the decision makers to decide what would best serve the ends of justice. So long as their decision was not out of sync with vyavahara as practiced, they had a whole range of flexibility. In contrast, for the British, the ‘certainty of law’, that it was fixed before the dispute came into being, was seen as a major virtue.
2.3 The administration of Criminal Justice was not also well founded in India, the police can oppress with impunity. During British rule the visit of a police darogah (officer) to a native villager is a calamity. If a robbery is committed, the poor are afraid to complain; if anyone is wanted as a witness, he is taken for several days from his labor and treated as a prisoner; if a criminal, or suspected criminal, is arrested, he is at once presumed to be guilty, and is very probably tortured to confess.... The insecurity of property induces all who can afford it, to hire watchman, in fact, bludgeon men, of their own; and these, whenever occasion requires, are of course used as agents of any amount of violence and oppression.... The people sink under the weight of fear, and their natural cowardice is increased by a sense of hopelessness of resistance. Justice is to a large extent, practically denied them; the land-holders and the police are chief powers they know; and they are hunted by both, till they surrender themselves to servility, to despair. Even after 65 years of Independence Justice Administration of justice in India never satisfied the aspiration of people, this is because wrong selection of foreign made legal structure, application of discontent laws, discarding indigenous system of justice administration.
* Guest Faculty of Law, KSLU’s Law School, Navanagar Hubli./ E-mail: firstname.lastname@example.org
# E.B. Havell, The History of Arayan Rule in India p. xi (London George g. Garrap & company ltd : Portsmouth Street Kingsway W.C MCMXVIII).
# Cowell (1872) History of the Constitution of the Courts and Legislative Authorities in India, , p.3.
# Alan Gledhill: The Republic of India, p.147.
# see also ‘’ L.R. Penna Australian Year Book of International Law: Traditional Asian Approaches: An Indian View (http://corrigan.austlii.edu.au/au/journals/AUYrBkIntLaw/1980/20.pdf)
.According to Professor Duncan Derrett: "The veriest tiro knows that Deace was a rare feature in India. and in the greater Indian world, except during the great empires, and even at those periods was seldom kept for long throughout the empire itself. He knows, too, that Indian society was used to war, and in many respects approved of war, and that both the sacred and popular writings of India, from the Vedas onwards, through the Epics, the Puranas, the Arthasastra, and the Dharmasastra, and the literatures patronised by royalty, not merely treat war as a normal feature of life, but even extol it as an instrument of policy and a means of releasing heroic and praiseworthy human qualities”.
# Bernard H. Cohn, Colonialism and its Forms of Knowledge (New Delhi, 1997), pp. 65-72.
# Radhakrishnan at p 114.
# Swami vivekanada, complete works, at p 111.
# S.G.Moghe, History of Dharmasastra in Essence, (Mumbai.P.V. Kane Memorial Trust, 2000), p 355
# Ibid, at p.327
# Kautilya’s Arthashastra, Book Concerning Law. p 4 (http://www.sdstate.edu/projectsouthasia/upload/Book-III-Concerning-Discipline.pdf
# E.B.Havell, The History of Arayan Rule in India, (London: London George G. Harrap and Co. ltd) at, p. x -xii
# Vice-Chancellor, Karnataka State Law University, Hubli.
# Patrick Olivelle, Manu’s Code of Law, (New Delhi: Oxford University Press, YMCA Library Building, Jai Singh Road -2006), p. 167
# S.S.Dhawan, ‘The Indian Judicial System : A Historical Survey,’ http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf
# F.Max Muller, The Sacred books of East, Vol. 25, (Delhi: Motilal Banarsidass Publishers Pvt. Ltd) , p.253
# Kautilya's Arthashastra: Book III Concerning Law, http://www.sdstate.edu/projectsouthasia/upload/Book-III-Concerning-Discipline.pdf
15 S.S.Dhawan, ‘The Indian Judicial System : A Historical Survey,’ http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf
17 Shukra, IV, 5,275
# Supra 14
# S.G.Moghe, History of Dharmasastra in Essence, (Mumbai: Dr.P.V. Kane Memorial Trust, 2000) ,p 355
 Yajnavalkya Smirit II.2
# F.Max Muller, The Sacred books of East, Vol. 25, (Delhi: Motilal Banarsidass Publishers Pvt. Ltd) , Pp.256-257.
# Mitaksara on the Yajnavalkya Smriti II. 15.
# Kautilya Arthasastra III. 11.
# S.G.Moghe, History of Dharmasastra in Essence, (Mumbai: Dr.P.V. Kane Memorial Trust, 2000) ,Pp. 362-363.
# Ibid. at, p. 363
# S.S.Dhawan, ‘The Indian Judicial System : A Historical Survey,’ http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf
# 26 Supra note 25.
# Wilie, ‘Bengal as a Field of Missions’, p.286; 1854.
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