DR.

RAM MANOHAR LOHIYA NATIONAL UNIVERSITY

SESSION (2017-2022)

SUBJECT: HISTORY

TOPIC: ADMINISTRATION OF LAW AND JUSTICE IN ANCIENT INDIA

UNDER SUPERVISION OF: SUBMITTED BY:

Dr. Vandana Singh Sakshi Agarwal

Assistant Professor(History) Roll No. 113

Dr. Ram Manohar Lohiya National University 1st Semester

B.A., L.L.B(Hons.)
 ACKNOWLEDGEMENT

Every work accomplished is a pleasure and a sense of satisfaction. The success and final
outcome of this project required a lot of guidance and assistance from many people and I am
extremely fortunate to have got this all along the completion of my project work. Whatever I
have done is only due to such guidance and assistance and I would not forget to thank them.

I respect and thank our mentor Dr. Vandana Singh for giving me an opportunity to dwell
upon this case and providing me all support and guidance which made me complete the
project on time.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my project.

Lastly, I thank almighty, my family and friends for their constant encouragement without
which this project would not have been possible.
 TABLE OF CONTENTS

I. INTRODUCTION.............................................................................................................. 4

II. SOURCES OF LAW IN ANCIENT INDIA .................................................................... 5

1. Dharma ............................................................................................................................ 5

2. Vyavahara ....................................................................................................................... 6

3. Charitra ........................................................................................................................... 7

4. King’s Edicts ................................................................................................................... 7

III. JUDICIAL SYSTEM IN ANCIENT INDIA ................................................................... 8

Concept of Dharma ................................................................................................................ 8

The Judicial Frame ................................................................................................................. 9

King as Head of Judiciary ...................................................................................................... 9

The Pradvivatra .................................................................................................................... 10

The Court.............................................................................................................................. 10

Hierarchy of courts ............................................................................................................... 11

IV. JUDICIAL ADMINISTRATION ................................................................................... 12

Judicial Procedure ................................................................................................................ 12

The Trial ............................................................................................................................... 12

System of Evidence .............................................................................................................. 13

Punishments ......................................................................................................................... 13

V. CONCLUSION ................................................................................................................ 15

VI. BIBLIOGRAPHY ............................................................................................................ 16

 INTRODUCTION

Administration of justice is one of the most essential functions of the state. To curb and
control that brute and to prevent degeneration of society into a state of tooth and claw, we
need the rule of law. We also need the rule of law for punishing all deviations and lapses
from the code of conduct and standard of behavior which the community speaking through its
representatives has prescribed as the law of the land. The judicial system deals with the
administration of the laws through the agency of the courts.

Law in India has primarily evolved from customs and religious prescription to the current
constitutional and legal system we have today, thereby traversing through secular legal
systems and the common law. History of our judicial system takes us to the hoary past when
Manu and Brihaspati gave us Dharam Shastras, Narada the Smritis, and Kautilya the
Arthshastra.

In order to have a basic understanding of legal system that prevailed in ancient India, it is
imperative to have a sound knowledge of the social structure and political institutions which
were in existence in early times.

A vivid idea of this period can be studied chronologically as under1:

i. The Vedic or pre-sutra period(Aryan civilisation);

ii. The dharmasutra period: this is the golden period of Hindu legal history. This period is
further sub-divided into
a. the sutra period and
b. The smriti period;
iii. The post smriti period: this period mainly pertains to Nibandhakars and digest writers
whose contribution towards the enrichment of Hindu law is of great significance.

1
Mittal J K , Indian Legal System :Past and Present (10th edn, new era law public,2006) 422.
 SOURCES OF LAW IN ANCIENT INDIA

Law in ancient India evolved through various theories which were later modified and to some
extent abandoned as per requirements of society in later ages. The law in ancient India was
not a proper codified one. This was because it was based on religion. Hence the law which
was applied was of the various religious texts as well commentaries written on them. This
provided a strong opinion of laws given by experts. The law was administered by the learned
Brahmins and the ministers of the King. In fact, the King used to even appoint lawyers in
order to decide a particular matter. In the rural areas, however, it was the Panchayats who
decided a case. These Panchayats usually consisted of the elderly members of the village.
Ancient India employed the term 'Dharma' to signify the concept of law. This law was
comprehensive in character. This was because it brought under its orbit the laws of physical
science, and also social laws which the experience, wisdom and intuition of highly developed
personalities could discover as unalterable.

1. Dharma

It was an expression of wide import and meant an aggregate of duties and obligations both
religious, moral and domestic. According to yajnavalkya, the term dharma means ‘rules for
governing the different castes and stages of life’, the four Vedas, namely, Rig Veda, Yajur
Veda, Sama Veda and Athar Veda, the Shruti, the Smriti and the approved usages are
considered as the highest authority on sources of law.

The Vedas contain very little law in strict sense of the modern term of jurispedence as in the
ancient times law and religion were intermixed. The Vedas are not the books of law, but are
the repository of culture delineating the feelings and habits of the people of the time which
indicate and give vivid ideas of law of a developed civilization. Thus the Vedas reveal law in
its very clear vision and idealism. From the study of the Vedas the glimpses of civil, criminal,
constitutional, international and public administrative law are also apparent2.

After the era of Vedas, the next important source of law is the Shruti. ‘Shruti’ means what
was heard. So whatever was contained in the Vedas, as a source and narrated by the sages to
their pupil it was as shruti. The shruti was accepted as the original utterings of the great
power. The Smritis were the collection what the sages as Rishis of antiquity saw or received

2
Ibid 431.
the revelations themselves. ‘Smriti’ means what was remembered. The Smritis contain
comprehensive rules for the governance of the society as a whole and as such they were not
confined to purely religious matters as was the case with Vedas, the most ancient text of
Hindu Law. Therefore, Smritis were supposed to contain law which was lost or forgotten and
contained in Shruti. The Smritis deal exhaustively with various topics of law and morality
and generally referred to as Codes or Institutes though they did not deal coherently with any
particular branch of law as they were compiled at different times and in different parts of the
country.

The Manusmṛti or “Laws of Manu” is the most important and earliest metrical work of the
Dharmaśāstra textual tradition of Hinduism 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).

As regards conflict between the law of Vedas and the law contained in the Shruti and Smritis,
the Vedic law prevails.

2. Vyavahara

Vyavahara means legal procedure. In the ancient society the king was the ultimate authority
to decide the disputes, besides him other tribunals also functioned. Therefore, the decisions of
king and other judicial tribunals provided an important source of law as the decisions served
as precedents. There existed regular hierarchy of courts in ancient India which discharged the
functions to decide disputes. Therefore, in course of time judicial decisions served as a guide
to the courts to resolve the disputes accordingly in future controversies of like nature.In the
ancient judicial system, great acre was taken of the correctness of the law propounded by the
tribunals as it was ultimately the king, the keeper of conscience and his administration which
was adversely affected by a wrong decision. In course of time original texts, shruti and smriti
were to be looked only when there was no decided case or custom on the point. Only in such
cases the courts regarded the question open and looked for guidance in original texts3.

3
Ibid 432.
3. Charitra

Charita denotes customs. For custom to be source of law, it must have the following
enannaterishts: ancient, continuous, not opposed to public policy, followed by a large number
of people, certain and reasonable.In the ancient society customs played a very important part
as source of law. Henry Mayne, while emphasising the importance of custom as a sorce of
law, states that in the absence of clear texts on a particular point, the disputes were resolved
with the help of established customs. Good customs were no doubt recognized in law but
there was a difference of opinion among smriti writers and commentators relating to the
relative superiority of law and custom. It is due to this peculiarity of Hindu law that a clear
proof of custom can even override the textual authority. In the realm of procedural law the
rule evolved that the dispute should be decided according to the law embodied in the Shastras
and in the absence of it on any point according to Charita4.

4. King’s Edicts

The king was vested with the power to do justice as the final court of appeal after hearing the
decision of the lower courts functioning under his supervision and his control. The king
dispensed the justice with the help of his councilors who advised him on the point of law. In
the hierarchy of courts the king was superior to all, as was always supposed to be passing just
sentence. At any rate, the ruler’s decisions were treated as an important source of law5.

4
Ibid 431.
5
Ibid 432.
 JUDICIAL SYSTEM IN ANCIENT INDIA

The social institutions and political in ancient India coupled with contemporary religious
philosophy effected the prevailing judicial system. The case system was deeply rooted in the
existing social institutions. Two system of family law- the Mitakshara and Dayabhagra
became the basis of civil law. The political system varied from state to state during ancient
Hindu period as the whole country was divided in several independent states. Dharma was
the most important concept of Hindu political thought.

Concept of Dharma

The judicial system in ancient India revolved around the concept of Dharma, which in turn
was dharma used in ancient India to designate law. In the Ashokan edicts, it meant
righteousness but in legal works it devoted the basic norm of good conduct. Dharma or the
code of righteous conduct was evolved with object of enabling an individual to establish
control over his desires and senses and to be contented. The rules so formulated or evolved
over a long period were meant to ensure peace and happiness to the individuals and the
human society as well6.

Dharma is preventive in nature as distinct from law which is punitive in nature, which comes
into play after the wrong is committed. Dharma is therefore qualitatively superior and
essential for maintaining harmony between an individual and other individuals viz. the human
society. It is for this reason, Manusmirti declares “Protect Dharma, it will in turn protect us,
instead if we destroy Dharma, it will destroy us”. The purport of the declaration in
Manusmriti is, it is only when substantial number of persons are of Dharma abiding nature,
there will be peace and happiness. A few who commit offences can be punished by law. On
the other hand, if substantial number indulge in adharma, Dharma(Rule of law) gets
destroyed as a result of which the human society concerned will suffer immensely. Gradually
a judicial element was added to the Dharma and the term became equivalent to law. The
concept of dharma was so comprehensive that it incorporated and was widely applied both in
criminal law and civil laws.

6
Shah Giriraj, History and Administration of Justice (1st edn, Anmol Publications,2000) 4.
The Judicial Frame

In the field of contemporary judicature, the Grihapati(head of the family) was the smallest
court for judicious decisions in his family whereas the King of the country happened to be the
uppermost and Supreme Court for all civil and criminal cases in his kingdom. The appointed
judges and assessors who were empowered by him to decide all matters of litigation.

According to Brihaspati, a court of Justice was of the following four kinds:

1. Pratisthita(Stationary) are established in a fixed place, such as a town or village.

2. Aparth thita(Not stationary) not fixed in one place, but moving from place to place as
in a circuit.
3. Mudrita (One furnished with King’s signature or Royal Seal): The court of a judge
appointed by the king who is authorized to use the royal seal.
4. Sasista or Sasrita: the court in which King himself presides7.

King as Head of Judiciary

King was the highest and ultimate fountain of Justice. According to traditions, the court of
justice in the capital was to be the last of the palace and was to face in the east. He was the
highest appellate court. Though the King dispensed justice himself but very often he
appointed judge called Adhayaksha or Sabhapati who was equivalent to Chief justice.

Brihaspati describes the respective duties of the different members of the Kings Court in the
following words: “The Chief Justice decides the case, the king inflicts punishments, the
judges investigate the merits of the case and should decide the cases with the assistance of
three members.

Though the king was the head of judiciary but he could not act single handed. According to
Yajnavalkya, the King is accompanied by scholastic Brahmanas and experienced ministers in
the hall of justice and decides the case according to rules of Dharamshastra. In case the King
was unable to attend regularly to the administration of justice, he could appoint a Chief Judge
or Pradvivatra to deputise for heirs along with other Sabhyas fully conversant with the law.

7
Ibid 13.
The Pradvivatra

He was the Chief Justice of the dharmadhikara and was to bell versed with both in substantial
law as well as in procedural law. He was to be a master in the sacred as well as in the
contemporary law. In the Dharamshastra scheme of judicial organization the Pradvivatrais the
most important figure in the King’s justice8.

The Court

The courts in ancient India were not bound by any technical procedure for doing justice to the
aggrieved persons. The basic considerations were upholding Dharma and to a void needless
and vexatious litigations. It was not necessary, in all cases, that the complaint be filed by the
actually aggrieved, the courts could themselves initiate proceedings on their own initiative if
circumstances so warranted. Kautaliya states “that where the interests affected pertained to
God, to Brahmins, to ascetics, to women, the minors, to aged persons or to diseased or
helpless persons, the judges shall take cognizance and give redress even though not
complained”. Similarly, Brihaspati states that in case of people, with immature minds, idiots,
mad men, old and sick people, women,etc. the complaint could be made on their behalf by
any relative or well-wisher of theirs whether authorized or not. When a plaint was filed or
cognizance taken by the courts, the court were required to investigate the matter and satisfy
themselves about the genuineness of the matter complained of before summoning the other
party to answer the charges. Elaborate rules existed governing the proceedings in the courts
regarding period of limitation for imposition of fines and penalties on persons who resorted to
the courts with unfounded for unprovable complains or withdrew cases subsequently without
any proper reason. Compounding or withdrawing the suits was considered as cheating the
king9.

In general social interest suits were not maintainable in the courts, namely, suits between
husband and wife, teacher and disciple, master and servant, etc. the law of those days did not
treat the child, wife or servant as independent legal persons or capable to possess property
independently.

8
Ibid 14.
9
Mittal (n 1) 433-434.
The trial was conducted by the court with the help of witness and the document adduced in
support of the claim. The veracity of the witness was tested by subjecting the witness to
various ordeals10.

Hierarchy of courts

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.

It is noteworthy that the Indian judiciary today also consists of a hierarchy of courts
organized on a similar principle-the village courts, the Munsif, the Civil Judge, the District
Judge, the High Court, and finally the Supreme Court which takes the place of the King’s
Court. We are following an ancient tradition without being conscious of it.

The institution of family judges is noteworthy. The unit of society was the joint family which
might consist of four generations. Consequently, the number of the member of a joint family
at any given time could be very large and it was necessary to settle their disputes with
firmness combined with sympathy and tact. It was also desirable that disputes should be
decided in the first instance by an arbitrator within the family. Modern Japan has a somewhat
similar system of family Courts. The significance of the family courts is that the judicial
system had its roots in the social system which explains its success.

The fountain source of justice was the sovereign. In Indian jurisprudence dispensing justice
and awarding punishment was one of the primary attributes of sovereignty11.

10
Mittal (n 1) 434.
11
Dhavan S S, ‘The Indian Judicial System A Historical Survey’<
http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf> accessed on 9 October 2017.
 JUDICIAL ADMINISTRATION

The aim of every judicial administration is to be just, honest and make available speedy
remedy to the aggrieved persons who as a last resort seek assistance of courts. The judicial
system in ancient India functioned under the supervision of the king and the courts derived
authority from him. One of the cardinal rules of the administration of justice in ancient India
was that Justice should not be administered by a single individual. A bench of two or more
was always preferred for administrating justice12.

Judicial Procedure

Judicial procedure was very elaborate. According to Brihaspati a suit or trial (Vyavahara)
consisted of four parts:

(i). The plaint (Poorva-paksha)- A statement in writing of a corse of action in the matter
of an original writ, tendered in open court and setting forth the grievance and asking
redress.
(ii). The reply (Uttar)- or the written statement
(iii). The trial and investigation of dispute by court(Kriya)
(iv). The Verdict or decision(Niryana)

In criminal cases, sometimes circumstantial evidence was sufficient to punish or to acquit.

The accused was allowed to produce any witness in his defence. Witness was required to take
an oath before the court, as required under Evidence act. Witnesses giving false evidence
before the court of law are severely punished by imposing fine also. Narada says that they
were condemned to go to a horrible hell and stall there for a Kalpa13.

Trial by ordeal was the method of determining the guilt of a person. As far as Atharva veda
and the Upanishads, ordeal was adopted as a special feature of Indian laws.

The Trial

The most salient feature of the judicial administration of ancient India was public trial. The
plaint was the most essential part of a proceeding at law. The statement of the plaintiff had to

12
Giriraj (n 6) 29.
13
Giriraj (n 6) 31.
be recorded in writing. There were four parts of trial, viz. plaint(Pratisisa) answer or written
document(Litasam) proof(Kriya) and decision(Nirnaya).

The main codes laying the principles of justice were Mitakshara and Dayabhagra. The trial
was mainly on the deposition of witnesses whose knowledge was based on what had been
suit(sin) heard(anubhavin). The minimum number of witnesses was three. As a general rule
respectable, honoured, pious and reliable persons of the same caste as the accused when
possible were preferred in evidence. Inferior to witnesses were the circumstantial evidence or
argumentation14.

System of Evidence

The Shastra-Kartas(scripture-maker) had developed principles of evidence which are in

conformity with modern evidential jurisprudence. The purpose of trial was described as a
desire to ascertain the truth. The Dharmashastras recognized three types of evidences,
namely, usage, document or the testimony of eye witnesses.it was enjoyed upon the court that
witnesses should be treated gently. It was recognized that if a witness was harshly treated, he
might be afraid, loss his balance and thus fails to narrate the truth. A clear distinction was
made between civil case witnesses and criminal case(Sahasa). The general principle was laid
down as early as Apasthamba to the effect that no one should be punished on mere suspicion
and the King should pass a sentence only after full investigation by means of witnesses or by
ordeal.

Punishments

The Hindu law of crimes, treated crimes, as disturbing the peace of the king and as such the
offender was made liable for punishment. The king while imposing punishments upon the
offenders took into consideration the nature of an offence, the time and place, the strength,
age avocation and motive, etc15.

One of the peculiar features of the ancient law was the differentiation which it made between
the members of different castes with regard to the quantum of punishments. The Brahmins as
a class enjoyed certain privileges and immunities with regard to certain type of punishments
which could not be inflicted upon them when they committed an offence which was treated

14
Giriraj (n 6) 7.
15
Mittal (n 1) 437.
as such under the law. A Brahman, if he committed a less serious offence was not subject to
corporal chastisement which otherwise could be imposed upon a person if he belonged to
another caste. Similarly, for very serious offences, a Brahmin could only be imprisoned or
branded and banished from the country under pain of ignominy and that they enjoyed
immunity from capital sentence. In adultery and rape, punishment was awarded on the basis
of caste considerations of the offender and of the woman.

Yajnavalkya speakas of four classes of punishments inflicted upon the criminals, namely:

(i). Censure
(ii). Rebuke
(iii). Pecuniary
(iv). Corporeal punishments; including banishment, branding, cutting of limbs, etc.

The law had provided for almost all types of crimes to be punished. It was duty of the king
and his officers to see that proper punishment appropriate to particular offence committed by
a person was imposed on the wrongdoer. Broadly, the censure and rebuke were considered
lighter types of punishments and were imposed upon person who committed less serious
offences in nature. Pecuniary and corporeal punishments were prescribed for serious offences
such as bodily injury, theft and other offences which disturbed the peace and tranquility of
the state16.

16
Mittal (n 1) 438.
 CONCLUSION

"In some respects the judicial system of ancient India was theoretically in advance of our own
today."- John W. Spellman

The law in Ancient India was derived from religion. Religion and law had a nexus and thus
cohesively were driving force of the society. When law was linked with religion it became
more sacred. Law basically covered the morals and ethics which one should follow during
lifetime to have a peaceful and satisfactory life. These morals were governing the conduct of
people in society.

Law at present when looked into is stopping a crime by laying down certain punishments and
thus states the consequences of committing a wrongful act. Whereas law in ancient India was
preventing the occurrence of Crime by incorporating the certain morals in the society i.e.
Dharma. It laid down both the mode of conduct of life and also the consequences of
committing a wrongful act. This made law in Ancient India more effective in lowering the
crime rate and having a good moral based society but the law in present scenario dose not
state how one can stop or keep way from unlawful acts. For that purpose today’s society
needs to go back to ancient society and more prominently dharma. The law at present
effectively brings a deterrent impact in the society but fails to give preventive principles.

During ancient India, the morals and ethics of the society were the law itself. But now there
are some laws which may or may not be against the societal norms but still enforced. This is
very much required at present also because some societal norms relevant in ancient times
hold no relevance in this century and to stop that enforcing it by a law is the most effective
way. The rule of law previously was dharma and now rule of law is principles of natural
justice.

Though law in ancient India was not much codified but strong conventions and custom
ensured effective administration of justice which is a distinct feature of ancient judicial
system. The judicial system was much influenced by bahramanic class and was not justified
to some extent due to rigid caste system prevailing at that time. But overall the judicial
system was very much effective and advanced in lieu of the political and social infrastructure.
Today’s judicial as per the society now is not as strong as that of ancient India. Therefore, to
move forward now we need to look back and incorporate aspects of the ancient society which
hold relevance at all point of time.
 BIBLIOGRAPHY

 Mittal J K , Indian Legal System :Past and Present (10th edn, new era law
public,2006).
 Shah Giriraj, History and Administration of Justice (1st edn, Anmol
Publications,2000) 4.
 Dhavan S S, ‘The Indian Judicial System A Historical Survey’<
http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf>
accessed on 9 October 2017.