The History of Ancient India:

1. Introduction:

This course will deal with the political, social, economic and legal histories of
ancient India. The development of the legal system of the ancient Hindus can be
traced to the later Vedic age. The Dharmasashtra tradition including the Smritis, as
well as the Arthasashtra and a few plays, such as Sudrakas Mrichchakatika throw
light on the development of the legal system of ancient India. The Mahabharata is
yet another source for the tracing of the history of the ancient Hindu people. So are
inscriptions such the Sanchi Stone Inscription as well as the Uttarmerur Pillar
Inscription of Parantaka I.

2. State Formation in Ancient India:

2.1. The Tribal Polity in the Rig Vedic Age:

At the time of the Aryan invasion agricultural and urban communities existed in
India. We learn from the Vedas that they were organized under powerful
monarchies. Some of these groups were controlled by lords of a thousand forts and
offered resistance to the arrival of the Aryans. This period “marks the first significant
stage in the development of the Indian state and society”.
The Aryans were groups of semi-nomadic tribes at the time of their arrival in
India. Primarily a pastoral people, they possessed no knowledge of iron and thus
could not practice effective cultivation. Though they had horses, their tools and
weapons, made of copper, did not provide them with any significant advantage “to
form large empires, leading to developed state organsiation”. Therefore, to get an
idea of the political organization of Rig Vedic times, it is necessary to examine the
social life of the people.
The semi-nomadic life of the early Aryans kept them mobile. They were unable
to form stage kingdoms since territorial state everywhere was the result of settled
life. This reflected on their social relations, which could neither be rigid nor
stratified. Hence, they could develop only tribal principalities.
The social structure of the Rig Vedic people was based on kingship. The terms
gotra [cowshed] and vrata occur in the Rig Veda at several places. Economic activity
lay at the root of the formation of these gotras, which were clans or lineages. Vrata
[hoard or troop or assemblage] means a kin-based group, which functioned under a
head called vratapati. Grama meant a simple collection of related kin-based families
that was the basic element of social structure. The gram came to denote a village

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where people took to agriculture and led sedentary lives. It formed the smallest of
all political units.
The occurrence of such terms as jana and vis in the Rig Veda suggest that society
had not yet emerged out of the tribal stage. Jana was the highest social unit based
on patriarchal kinship. Some believe it corresponded to the tribe. Its chief was known
as janapati or king [raja]. Vis was a sub-division of the jana or tribe. It was the clan
of the tribe which had its own chief called vispati. Visas, which were fighting units,
were closely knit, and on the battlefields. Battalions emerged out of the vis.
The basic elements of the state included 1. a fixed territory, 2. a regular source of
income and 3. a standing army. The people were more attached to the different kin
groups that to any territory. The tributes from the victorious king to the defeated one
were obligatory and not regular. This was also true of the army, which seems to have
improvised one. It was mobilsed out of the tribesman whenever the need arose.
But the process that gave rise to the state organs had already begun in the Rig
Vedic period.

3. Tribal Assemblies:

3.1. Vidatha:

The term vidatha can be derived from vid which means to know or to exist.
A.S. Altekar suggests that it “probably indicated a religion or sacrificial gathering
where the highest knowledge of rituals was needed.” Vidatha, which was associated
with civil, military and religious functions, was the parent folk assembly from which
sabha, samiti and sena emerged. It was a religious assembly that organized the
religious life of the Rig Vedic people. The vidatha was distinguished from the sabha
and samiti by the active participation of women in Vedic sacrifices. These references
in the Rig Veda suggest that the vidatha was a family council.
The Vidatha, as a deliberative body, made rules for the regulation of tribal
affairs. It conducted its military operations under a war chief. It appears to have been
a big assembly, probably representing the entire tribe, because there are references
to people being arranged by groups. According to Sreenivasa Murthy it was “the
earliest folk assembly … attended both by men and women, performing all kinds of
functions, economic, military, religious and social”. The keystone of the vidatha was
cooperation. But it did not participate in administration of the tribe.

3.2. Sabha:

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 The sabha was a popular assembly. It was a distinguished popular body and
a noteworthy organization of the Rig Vedic period. It was an unique organ of the Rig
Vedic polity. The precise meaning of the word sabha is not clear. Different scholars,
both oriental and occidental, have interpreted its meaning differently. According to
the early twentieth century historian, Emile Ludwig, it was similar to the upper house
of the modern parliament where priests and aristocrats sat, while Heinrich Zimmer,
writing at the same time, regarded it as a village assembly. N.C. Bandopadhyaya, in
his Economic Life and Progress in Ancient India, rightly suggests that:

“the sabha was at first an association of kinsfolk, but later became an

association of men bound together either by ties of blood or local antiquity.
It was a central aristocratic gathering associated with the king and may as
such be called a political council”.

The members of the sabha “debated over the domestication of cattle, played dice
and offered prayers and sacrifices”. In the Rig Vedic period, women also attended
the sabha but it was discontinued in later Vedic times.
This primitive assembly assumed patriarchal and aristocratic character in the
later Vedic period. The members of the sabha were rich. The assembly was
composed of men and women of distinction and high social status. This confirms to
it’s aristocratic character.
This body transacted both political and non-political business. It deliberated
over pastoral and religious affairs. It was a national judicature. “Even during Royal
Imperial centralization” writes R.C. Majumdar, “the judicial sabha preserved traces
of its popular origin and retained some important features in its administration of
justice.
The sabha conducted its business by debate and discussion. Free and frank
discussions were held before arriving at unanimous decisions. The decisions of the
sabha were binding on all its members. The king attended the meetings of the sabha
and considered its advice “to be of supreme importance”.
The sabha was a noteworthy constitutional organization in the Vedic age and
later. Majumdar in his Corporate Life of Ancient India has pointed out that:

“the sabha of the people afforded an extensive scope for the corporate
activities in the political field. It was not a mere effete body, but possessed
real control over the king … It formed a well-known feature of public
administration in those days”.

3.3. Samiti:

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 The samiti was another important constitutional organism of the Vedic times.
It was a younger contemporary of the sabha. The Rig Veda calls it an assembly of
the entire Vedic tribe. Ludwig believes that it was something like a lower house, a
more comprehensive body consisting of all the common people [visah], the
Brahmans and rich patrons. Samiti according to Bandopadhyayay was a gathering
of the whole folk of the country, the assembly of the rasthtra. It was closely linked
to the members of the royal family and met on all important occasions like royal
coronation, wars and national calamity. In other words, it was an august assembly
of a larger group of people for the discharge of tribal [i.e. political] business and was
presided over by the king.
Altekar thinks that the samiti was composed of aristocratic elements and
priests, at least the royal chaplain. There are references to princes attending the
samiti in later times. It also enjoyed popular participation. However, K.P. Jayaswal’s
view that the village formed the basis of the samiti, if not originally, certainly in later
times, does not find much support amongst ancient Indian historians.
Amongst its most important political functions of the samiti was the election
of kings, who could be reelected. All matters of the state, executive and military,
were discussed in the meetings of the samiti. U.N. Ghosal suggests that the samiti
was not a sovereign body in Vedic times. It did not exercise control over military
and executive affairs or policy or legislation.
Non-political issues were also discussed in the meetings of the samiti. It was
a national academy. It tested the knowledge of the educated people. The king
attended the meetings of the samiti. The president, called pati or ishan, was placed
below the supervision of the king.

3.4. Later Vedic Developments:

The tribal state of the Rig Vedic age later became territorial because of the
prevalence of settled life. In this period agriculture took precedence.
The king was paid regular tributes. Members of the priestly class began to
reinvent rituals. The peasantry was now beginning to be permanently subordinated
by the priests and the princes. There was a growth in strong centralizing tendencies.
The basic framework of the power structure of the state grew increasingly complex
in this period. Private property came to be protected. Families were beginning to be
brought under the sway of patriarchs. From 500 BC onwards there was a surplus in
supply and machineries.
State formative tendencies developed in this period.

3.5. Kingship:

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 There are some speculations regarding the origin of kingship in the existing
Vedic literature. The Aitereya Brahmana refers to wars between devas (gods) and
danavas (demons). In these epic wars the gods were repeatedly defeated due to the
absence of a strong leader who could lead them on the battlefield. Eventually, the
gods elected Indra as their king. He (Indra) triumphed over the demons. Thus, a
need was felt for having a king to lead on the battlefield. The necessity of war led to
the origin of kingship.
The same line of reasoning, in later times, found expression in Buddhist texts
too. The origin of kingship is discussed at some length in Agnna Suttanta. This text
at first refers to a society where a state of matsanyaya (the logic of the fish) prevailed.
In this state the strong devoured the weak. A state of anarchy prevailed in the absence
of any authority, which led to the selection of a ruler who could both centralize
power and lead by example.
K.M. Pannikar in his The Ideas of Sovereignty and State in Indian Political
Thought says that there are three different meanings of a king, representing three
different occupations. He suggests that when the king was chosen by the whole
people of his tribe he was called mahasamanta (the Great Elect), who had a political
role to play. When he was the lord of the fields he was called kshatriya, who had a
military role to play. Finally, because the king delighted others by establishing the
law, he was called Rajan (fountainhead of justice), thus playing a legal role.
This speculation implies that monarchy was both elective and contractual.
Social contract is succeeded by political contract. The precedence of social contract
may point to an advanced stage of social development when tribal society had broken
up, giving rise to a clash of interests between men and women, races and classes.
R.S. Sharma in his Aspects of Political Ideas and Institutions in Ancient India
suggests that this concept markedly distinguishes the Buddhist contract theory from
one which can be inferred from the Brahmanas.
To be a king one had to demonstrate valour and strength. The king also had to
be handsome, popular and able. Buddhist scholars suggest that the king had to
possess “physical qualities of the aesthetic type” combined with “those of the head
and the heart”. The king had to be a protector of the lands (property). As a kshatriya
the king had to exercise his authority over land not as the owner but as a
representative of the people. The contractual relation between the king and his
people reflects proprietary rights of oligarchy over all lands. The title Rajan indicates
that the king delighted the people by rooting his actions in precepts of
dharma/dhamma (righteousness or justice).
Theories of the origin of state occur only incidentally in the Arthashastra. The
subject is introduced during a discussion of espionage. Though Kautilya justifies the
king’s authority by means of divine right, he brings out with great clarity the king’s
responsibility as an official who received revenue in lieu of protecting the people.
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This idea is carried forward by stating that “the king is spiritually responsible for the
faithful discharge of his functions”.
There are two speculations in the Shanti Parva section of the Mahabharata
containing elements of the contract theory of the origin of the state, in the absence
of the elective theory, which became inappropriate in the Vedic and the Brahmana
periods. According to the first speculation, the king was the heir to Lord Vishnu’s
legacy. His legitimacy was derived from his divine ordination. Secondly, there was
a contract between the king and the brahmanas and it was a unilateral one. The king
promised to protect and respect the brahmanas and to grant them privileges. This
suggests the increasing importance of the brahmanas in Hindu society.
The second speculation concerning the origin of the state occurs in the 67 th
chapter of the Shanti Parva. Even in this speculation kingship is not result of a
bilateral agreement between the people and their leader, who is one of their own.
Rather, it is the creation of divine will. In the agreement that is signed, the subjects
make extravagant promises to the king. The contractual theory occurring in this
speculation should be regarded as the most adequate theory on the origin of the state.
In this statement four important elements of the state – rajan, bala, kosha and danda
– are distinctly noticed.
The contractual idea of the origin of the sovereign is the most obvious answer
to the problem of voluntary obedience to an authority placed over the people.
Undoubtedly the conception of ancient Indian speculation concerning kingship was
contractual, but it would be misleading if from this point we proceed to see in it the
whole of the contractual theory of modern democratic state. Another aspect that is
highlighted in the theories regarding the origin of kingship is the fear of anarchy.
Matsanyaya underlines every concept of kingship. Although this concept concerning
human nature existed in Europe and elsewhere, it was in India that it reached the
highest stage of development and became the central theme of political philosophy.
Ancient Indian political thinkers believed that the king being the protector of
the people from rampant anarchy, there was not enough ground for legitimization of
authority in the European sense of the term. If the king fails in this primary duty he
will have broken the social compact. Bhishma even suggests that in an anarchical
state even a usurper has to be accepted. So absolutism was not acceptable in the
Indian political system. Maintenance of the social order is the first objective in a
monarchical state. According to Sukra the king should be obeyed by the people so
long as he follows niti and governs justly.

3.6. The Rajasuya ceremony:

Under Hindu law the coronation ceremony of the king is called the Rajasuya
ceremony. This ceremony symbolizes the dedication of the king to the services of
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the people and the affirmation of the covenant between the ruler and the ruled. This
ceremony consists of three parts:

1. Preliminary rituals
2. The coronation ceremony itself
3. The Post-coronation ceremonies

1. Preliminary rituals: The preliminary rituals consisted of the ratnavimsha

ceremony, according to which the future king has to approach the ratnins in their
respective homes and offer his oblations. The purpose of this ceremony was to
secure the approval of the ratnis for his accession to the throne. It served another
purpose: the creation of a feeling of attachment and loyalty of the new ruler to
his ratnis.

2. Coronation ceremony: On the day of the coronation the king was anointed with
different liquids brought from four sides of the kingdom: (a.) ghi was brought by
the brahmanas from the east, (b.) milk was brought by the kshatriyas from the
south, (c.) curd was brought by the vaishyas from the west, and (d.) water by the
sudras from the north. This meant the new king’s enlisting of the support of
different social groups. Then the king gave a pledge that he would stand by the
law.

3. Post-Coronation ceremony: Once the performance of the rituals was over, the
king toured his realm signifying that he was bound to the land over which he
ruled. It may also suggest the territorial characteristics of monarchy in the later
Vedic period.

3.7. Royal Functions:

The primary duty of the king is to protect the people and to assure them of
security of life, property and belief. The Mahabharata declares that protection of the
people is the principal duty of the king. The king has to maintain external and
internal peace, uphold social order and create conditions under which people can
live a life of freedom. This is the wider meaning that the writers on politics give to
the word protection. Bhisma says that the interests of the people are of supreme value
than even services rendered to the Gods. He advises the king to behave accordingly.
So the king has to follow the will of the people. The same spirit of Royal activity is
expressed in the Arthasastra. Kautilya does not support an autocratic ruler. He
advises the ruler to secure the commonweal through initiative and enterprise. All

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political theorists in ancient India laid emphasis on prajahita (welfare of the people),
which is seen as the first principal of rajniniti.
The upholding of justice, as the counterpart of external protection, is
considered to be the supreme duty of the king. In the due discharge of his duties the
king is advised to practice virtues of promptitude, energy, truthfulness, self-restraint
and humility. Thus the king, according to the Arthasastra, has to look after the moral
and material well-being of his subject.

3.8. Councillors and Officials:

The ratnavimshi ceremony, which formed a part of the Rajasuya coronation

sacrifice, required the king to visit the house of each ratni and offer oblations. The
ratnis were a governing class. K.P. Jaiswal suggests that they were high
functionaries of the state. The Pachavimsha Brahamana suggests that there were 11
ratnis:

1. Senani: Commander-in-Chief
2. Gramani: Leader of little groups on the battlefield, i.e. majors
3. Sutra: Charioteer/wheel maker
4. Rathakara: Chariot maker
5. Ksattri: Chamberlain
6. Sangahitri: Master of treasury
7. Bhagadugha: Collector of taxes
8. Akshavaha: Chief of sports
9. Govikartana: Chief huntsman/keeper of games and forests
10. Taksan: Carpenter
11. Palagala: Messenger

R.S. Sharma lists three more officers:

12. Purohita: Priest

13. Rajanya: representing the Earth Goddess, pointing to the significance of
matriarchal elements in later Vedic society
14. Parivrikti: Discarded queen who cannot have a son

Sharma, basing his judgment on the Panchavimsa Brahmana, says that purohita,
rajanya, mahisi, gramani, ksattri and sangahitri were all officials of distinction
whose power sustained the power and position of the king.
The difference between the members of the council and the high functionaries
is not easy to ascertain. They must have constituted a sort of a bureaucracy. We find
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mention of them in the Arthasastra. Machinery of taxation was strengthened through
the offices of the Bhagadugha. The importance of tribal life in a territorial state is
suggested through the offices of the Purohita and Govikartana. It is difficult to
ascertain whether the ratnis were elected or selected. Jayaswal surmises that they
were selected or elected on the basis of caste and class. Participation of women,
which began to decline in the later Vedic age, was noteworthy in the early phase of
this period.

3.9. Oligarchies and Republics:

Pre-Mauryan India witnessed the flourishing of tribal states governed by

oligarchies alongside monarchies. These bodies, called republics, assumed caste
characteristics. The ruling class in the republics of the Sakyas and Licchavis
belonged to the same clan and same varna. Vedic literature gives faint indications
of such tribes at a very early date. These early tribes were organized on blood ties.
The members of these groups retained their independence, in spite of their allegiance
to the chiefs belonging to a certain family. With the spirit of war and conquest, well
constituted sub divisions of such organizations came into existence and they are well
known in the extant Vedic literature as gana, vrata, and visah. Over time vis changed
its character and allegiance to the hereditary chiefs.
The Pali sources refer to a number of republics, some with complete, some
with more or less modified independence and one or two with very considerable of
power. The two republics of considerable power were the Vrijian Confederacy and
the Sakyas of Kapilavastu. According to the Ekapanna Jataka the chief element of
the Vrijian Confederacy was the Licchavis of Vaishali. Although this was
improbable, in Vaishali there were supposed to be as many as 7707 kings, a like
number of viceroys, generals and treasurers. The Jaina accounts refer to an inner
council of 36 tribal chieftains controlling the affairs of the Licchavis, Mallas and
allied tribes in their war against Ajatshatru. The Raja held his office for life. This
was particularly true of the Sakyan executive head. The Buddha came from the
Sakyan Republic.
The administrative machinery of the Sakyas was simple and rudimentary.
Rhys Davids describes his government thus: “the administrative and judicial
business of the class were carried out in a public assembly where the young and the
old were both present. In Kapilavastu, the room where the meetings were held was
called Santhagara (Mote Hall). It was a sort of a Parliament. This was similar to a
Roman council. Village affairs were held in the open. Such a state was territorial in
character. It was an aristocratic republic with a single, permanent and hereditary
head called the Raja and an assembly of the ruling caste or class. The assembly

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deliberated on public affairs and momentous issues of war and peace. Decisions
were normally taken unanimously with the voice of the majority.
Over time the republics found it difficult to face the internal pressure of the
changing socio-economic conditions and the external pressures of the rising
kingdoms in eastern India. The Vrijian Confederacy succumbed to the intrigues of
Ajatshatru at the time of the Buddha’s death. The same fate followed the Sakyas.
Imperialism in the east was stronger than in the west. Greek accounts, especially
those of Megasthenes points to republics in the Punjab and Sindh. Arthashastra
discusses pluralistic forms of government in the 4th century B.C., although Kautiliya
advocated the cause of empires. Section 107 of the Shanti Parva of the Mahabharata
discusses the virtues of republican states and the state of welfare. The republics that
witnessed Maurya imperialism were the Yadavas, Malavas, Arjunayanas, etc. These
republics ruled independently. The Malavas probably founded the Vikram Era.
Samudragupta struck the republican system from the middle of the 4th to the middle
of the 5th centuries. The republics became tributary states to Samudragupta’s empire.
The following centuries saw the waning of Hindu constitutionalism. A.L. Basham
suggests that government by discussion in a framework of constitutionalism was not
unknown in ancient India, especially in the first millennium after the birth of Christ.

3.10. Local Administration:

Village or grama formed, as I have suggested earlier, the pivot of local

administration. Its centrality was naturally very great in an age when
communications were slow and industrialization unknown. The local administration
was carried on by dividing the local area into various political or rather
administrative divisions to facilitate the smooth working of the administration of the
whole state. The smallest unit of administration was then a village with a number of
families pursuing hereditary occupations. The next unit of administration was
sangrahana or a group of villages. Above this were the kharavatika comprising of
200 villages. Dronamukha consisted of 400 villages while staniyas had 800 villages.
The division of villages suggested in the Manusmriti was as follows: 10, 20, 100 and
1, 000 respectively.
The administration of the village was carried on under the supervision and
direction of the village headman, who was variously called gramani, gramika,
gramabhojaka, gramayoka, gramakuta, etc. He was a state official and as such was
responsible to the government of the land rather than to the village assembly. His
order was represented in the council of ratnis in the Vedic period. It was his duty to
set up and define the boundaries of the village. He was to survey the land and classify
it under various heads. He had to manage gardens, forests, temples, irrigation works,
cremation grounds, rest houses, pasturages and roads. He periodically took the
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census of his village and submitted the record to the chief of the department. He
maintained the register of accounts to note the collection of actual revenue. As a
leader of the village militia it was his duty to prevent troubles, both internal and
external, arising in the area entrusted to him.
The office of the village headman was hereditary, but the government reserved
the right to nominate another scion of the same family if the succession of the scion
was in doubt. He enjoyed rent-free land in lieu of salary in addition to a number of
petty dues in kind which the villagers had to pay to the government. He had a clerk
to assist him in the maintenance of the village records and correspond with the higher
authorities. The office of the accountant was hereditary and he also enjoyed rent-
free land.
Of the other officials in the rural areas mention may be made of those in charge
of sangrahanas, kharavatikas, dronamukhas, and sthanikas. They were made
responsible for the administration of their respective areas. They were given
supervisory control over officers lower in rank to them. Sthanika was the most
important officer in the rural administration. He was answerable to the ratnis in-
charge of finance. He dealt directly with his subordinates and sent out special
intelligence officers to find out the causes for migration from the villages. He
detected theft and had to produce the guilty for punishment. The services of these
officers were highly remunerative and carried dignity with them.
The different units of rural administration were self-maintained groups
answerable to the central government in financial matters. The central government
hardly interfered in the internal matters of the villages, but stepped in only when tax
collection became necessary. Otherwise the village administrations enjoyed
complete autonomy.
The village had its own assembly (later village panchayat) to carry on the
administration. The composition of the assembly varied from region to region.
Generally, it was made up of village elders though there are instances of all
householders being its members. They were called mahajans or maharattavas. They
met regularly to transact administrative business and to settle local disputes.
According to Kautiliya, the committee was to act as a trustee of the property of
orphans, minors and temples.
The Chola records provide a more detailed picture of the constitution and
functions of the village assemblies. There were two types of villages: Urs and
Brahmadayas. Ur or the ordinary villages had a local assembly also called Ur. It was
composed of all members of the village excluding the untouchables. It concerned
itself in all matters pertaining to the village. This assembly also dispensed with
justice.
The Brahmadaya villages are those agraharas that were granted by kings to
learned Brahmans. Their assemblies were called mahasabhas, which were
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completely autonomous. The system of elections to the mahasabhas has been
described in detail in the Uttarmerur inscription of Parantaka I.

3.11. Working of the Mahasabhas:

The mahasabha was a democratic assembly which was autonomous. It

controlled the village lands and did not interfere in the internal administration of the
villages. It collected the land revenue either in cash or in kind or both and paid to the
Royal Treasury. On non-payment of land revenue the land could be auctioned off by
the mahasabha. The assembly had absolute powers regarding the reclassification of
lands and the reclamation of forests and wastelands. The Ukkal Inscription makes it
clear that the assembly “possessed all powers of the state within its narrow sphere
of activities”. It controlled corporate property which could be sold for public
purposes, such as temple needs. It was a trustee of public charities, received and
deposited money, land and paddy under condition stipulated by the donors, such as
the Brahmanas. In times of famines, i.e. failure of crops, the assembly provided relief
and rehabilitation and remitted land revenue.
The assembly arranged for the proper maintenance of communications and
irrigation works, which needed their special care. It also controlled primary
education. The king did not interfere in the working of the sabha, but interfered only
when was a dispute between the two sabhas. There was cordial relationship between
the assembly and the king.
The assembly had judicial duties. There was a judicial committee known as
nyayattar which settled disputes and pronounced judgments. The king was of course
the fountainhead of justice and if the party was not satisfied with the decision of the
committee, he would appeal to the king for the final judgment. The punishments
were mild and even for murder the punishment was payment of a fine to the temple.

4. Social History of Ancient India:

4.7. The Varna System:

The varna system makes the Indian society distinctive. Varnashramadharma

implies that dharma is not the same for all. There is sadharandharma, which is
common to all Hindus. It is one of the major ideological basis on which the varna
system rests. The qualities that constitute sadharandharma forms the very
foundation of the social order which serves as the moral order that binds man in a
common fellowship. Varnashramadharma is an unique system of social obligation.
According to A.L. Basham it implies that there is a dharma which is appropriate to
each class and to each stage in the life of an individual.
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 But the original meaning of the conception of varnashramadharma appears
to be that each individual is a part of one stupendous whole but at the same time each
is distinct from the other in the nature of its contributions.
Caste is, however, not unique to South Asia. The clergy, nobility and the
burghers and the serfs and proletariats in Europe were similarly divided into the four
varnas. The four fold grouping founded in ancient Iran included atharva (priests),
ruthestha (warriors), vastvya-fsuvant (head of the family) and uniti (manual worker).
If the foreign origin of the Aryans is accepted, then the Aryans brought the four-fold
division to India at the time of their invasion. Even in the earliest hymns there is
reference to ksatra (nobility) and vis (ordinary tribesman).
There are two current views both within western and Brahminical Vedic and
post-Vedic texts about the origin of the caste system. According to the western view,
the dasyus were regarded as the original inhabitants of India. They were said to be
the ancestors of the Sudras. When the Aryans conquered India they suppressed and
enslaved the dasyus. This view is untenable.
In fact, we learn from the Vedas that active opposition between the Aryans
and dasyus was not due to colour but due to the difference of cults. Also, all the
sudras cannot be traced to servile origin. The exclusion of the sudras from religious
rites may have been due to an original antipathy of the dasyus to Vedic religious
observations. So there was voluntary exclusion of social groups in ancient India.
The second view on the origin of castes is the Brahmanical one that supports
the view that castes emerged out of divine sanction. A famous legend states that the
origin of castes can be traced back to purushashukta. This is stated in a hymn. It
states that all castes emerge from purusha. This tradition is repeated by Manu in his
Manusmriti. Manu says that purusha or the caste system is meant to preserve the
universe. The Brahmana is at the apex of the social hierarchy. The Gita says that the
varna division is divinely ordained and is sent by Lord Krishna. But this statement
basically states the functional differentiation between quality and action (guna and
karma). Philosophical justification of the differentiation comes from the
Upanishadas. According to the Chandogya Upanishada a man’s varna is part of
retributive justice that pursues the self from birth to birth. The Shantiparva says that
man attains a superior varna by the performance of righteous acts, i.e. adherence to
varna, ashrama and moksha.
Recently, R.S. Sharma has proposed in his Material Culture and Social
Formation in Ancient India that “the mode of production involving the theory of
surplus leading to class formation” was responsible for the formation of the caste
system. Sharma says that the view of the authors of the Vedic Index that the caste
system was already well on its way towards general acceptance in the age of the Rig
Veda is not positive evidence. But if the varna system is understood in the sense of
a mechanism created in response to a mode of production in which the upper classes,
13
i.e. the priests and noble warriors, were the managers of production and collectors
of the surplus produce and the lower classes such as the peasants, artisans and
agricultural labourers, free and bonded to carry on the primary work of production,
then such a picture cannot be deduced from the relevant references in the Rig Vedas.
The Rig Vedic society as reflected in the central portions of the first of the four
Vedas was primarily pastoral. The people were semi-nomadic. Their chief
possessions consisted of cattle and horses. Wars which were a logical and natural
economic function were fought over cattle. Wars were an important source of
livelihood. The main duty of the chief or raja was to protect the cows. In the earlier
portions of the Rig Veda mention is made of the peasants, priests and warriors, but
the society as a whole was tribal, pastoral, semi-nomadic and largely egalitarian and
was free from the later institution of social classes or groups called varna.
The later Vedic people took to agriculture on a large scale and produced
enough cereals to enable the princes to perform sacrifices and reward their priests.
These sacrifices mostly benefitted the relatives of the chiefs and their priests, who
were raised above the vis. Apparently, the distinction between the rulers and the
ruled had not been sharpened. At this stage the process of turning the tribesmen into
taxpaying peasants was very weak.
The widespread use of iron in the age of the Buddha helped in the clearance
of the thickly forested areas. The use of iron ploughshare led to the production of
sufficient surplus for the emergence of a class based and state based society in which
the religion and governing wings of the ruling class could collect taxes, tributes and
tithes. The Brahmanical ideology gave legal and religious startup to the emerging
system. They devised and elaborated a social mechanism through which the fruits of
economic expansion could be cornered by the princes and priests to the exclusion of
the peasants, artisans and agricultural labourers. Sharma says that the varna system
was devised to serve this purpose. The more a person withdrew from physical labour
the purer he became. The producing classes were saddled with social disabilities and
economic obligations which were enforced through the establishment of a
professional army and an administrative apparatus.
R.P. Masani says that the seers of the ancient age knew nothing of caste. In
short the four fold division is for integration rather than division. It is this conception
of a single community arranged in four layers. But the fault lies with Hindu law,
which by its doctrine of prohibition upholds the division and renders adjustments
impossible.

4.8. Varna and Jati:

A great deal of confusion has arisen out of the indiscriminate use of the word
caste to denote both varna and jati. Varna is not the same as jati. Varna represents
14
the four-fold division of society while jati represents smaller groups existing in
society, which the authors of the Dharmasastras seek to derive from one or the other
of the four varnas. Manu distinctly says that there are four varnas: Brahmana,
Ksatriya, Vaisyas and Sudra, while he speaks about fifty jatis, such as Ambastha,
Chandala, Dravida, Yavana, etc. But there is confusion since Brahmana came to be
called both a varna and jati, and there are many jatis which are comprehended under
the name Sudra. According to Manu many sub-castes or jatis were produced by a
series of crosses firstly between members of the four varnas and then between the
descendants of the initial union. Secondly, many sub-castes were formed by the
degradation from the original varnas because of the non-observance of sacred rites.
These are called vratyas.
H.H. Riseley speaks of castes formed by different processes. A whole tribe of
aborigines or a large section of a tribe enroll themselves in the ranks of Hinduism
such as the Rajbanshis of northern Bengal, the Bhumijes of western Bengal, the
Gonds of Central India. The functional and occupational type of castes such as the
sadgops (milkmen), washermen and agriculturists. The castes or jatis evolved out of
religious sects like the Lingayats and Sikhs. There are castes of the national type that
were sovereign, such as the Mahrattas and Kunbis.
Often castes were formed due to migration, detachment from one caste led to
their settlement elsewhere and assuming of different occupational responsibilities,
such as the Rarhi and Varendra Brahmana of Bengal and the Goud Brahmanas.
Sub-castes were formed by adoption of new customs. The Ayodhya Kurmis of Bihar
and Kanaujia Kurmis of UP are set out by prohibition of remarriage of widows –
this led to the attainment of a higher rank. Manu did not first discuss all this. The
Smriti writers such as Baudhayana, Vasistha, and Gautama also commented on this
process.
Looking at the theoretical and practical or functional dimensions of the
institutions of jati and varna, we see a distinction between the two. Suvira Jayswal
says that jati and varna did not constitute two different. They formed a single system.
Hindus apply the term jati to all levels of caste systems from caste to sub-caste.
Romila Thapar says that the varnas represent the theoretical and jatis the
fundamental aspect of caste. Varnas can be traced to Harappan culture too.
Varna has three essential features. 1. The existence of hereditary groups
governing marriage relations, 2. A hierarchical division of labour based on a service
relationship, that later came to be known as the jajmani system, and 3. The idea of
ritual purity and impurity of social groups. The transposition of the jajmani system
or service relationship is questioned by Jayaswal. In her view the later jajmani
system utilized the concept of ritual ranking to restrict the mobility of the dependant
people but it cannot be seen as a survival of a culture in which the priest was

15
supposed to have occupied the central position by virtue of his inherent sacred
powers.
Thapar’s view that jati represented the functional and varna the theoretical
aspect is also questioned. Narendra Wagle, on the basis of his reading of the Pali
texts, suggests that jati did not represent bonds of kinship but indicated status
position. Louis Dumont suggests that varna hierarchy is based on functions and jati
implies relative purity/impurity of castes. S. Jayaswal feels that the notion of
purity/impurity described as a characteristic of the jati system was a further
elaboration of the varna ideology reflecting the deterioration and hardening of class
relations.
D.D. Kosambi suggest that the origin of the caste system may be traced to the
formation of the servile caste from the dasyus (dases), who were the descendants of
the Indus settlers who had to provide the surplus for the Indus cities, being pursued
thereto by some methods other than force, say religion. He considered the
assignment by tribal authority of task related to labour to one or more dases to be
one the main causes of economic disparity between the upper and lower classes and
one of the most important reasons for the significance of private property. The
decline of tribal egalitarianism and differentiation within the tribe paved for a class
based society wider than the tribe in which, despite continued tribal influences, the
priests and the warriors united to repress and exploit the Aryan peasants (vaisyas)
and the non-Aryan helots (sudras). It may be noted here that caste ideology was not
static and the concept of purity/impurity of social groups developed in historical
times with the intensification of class exploitation.

4.9. The Family:

The Indian family was always a joint family. All members of the family lived
together under the same roof and shared the property equally. Normally, the joint
family had three generations as stated in the Smritis. Under the rules of the law of
partition any member of the family who is removed by more than three degrees from
the common ancestor cannot claim a share in the partition. The joint family may also
include four generations. The father was the head and administrator of the family.
Sraddha, the rite commemorating the common ancestor, bound the groups
together. All the relatives of the deceased (sapinda) joined on this occasion. Three
generations of the head, i.e. the grandfather, father and son, are believed to
participate in the ceremony. Thus the dead and the living come together in this
ceremony. This ceremony marks the unity and integrity of the joint family.
The joint family system bound the family with a deep sense of solidarity and
gave its members a great measure of social security. But it was not free from
limitations. It gave rise to nepotism. Common social security bred parasites. There
16
was no individual autonomy or self-dependence. The individual did not count much
in the family as the latter was an unit of the social system. Population was estimated
in terms of families rather than taking a count of heads. The father was the head.
Implicit and unquestioned obedience to the head was expected. At the same time
cruelty is forbidden by Apasthamba. Kautilya too forbids criminality within the
family.
The law of partition permitted the partition of joint families after three
generations. General partition took place at the time of the death of the paterfamilias.
Property was divided amongst the sons. There is no reference to will and the eldest
son was not entitled to any special inheritance, except 1/20 th of the share. Partition
of a property took place in the lifetime of the father too. Initially individual
possessions of the members were not included in the joint property. Manu says that
the property of the son, wife and slave belongs to the father. Basham says that the
rights of the paterfamilias grew with the passage of time.

5. Economic History of Ancient India:

5.7. Pastoralism:

A study of the stages of the evolution of ancient Indian economy from

pastoralism to the emergence of a developed economy, represented by the
stabilization and expansion of agriculture, progress in industry, rapid growth in trade
and economy, both internal and external, and the advent of money economy is
fascinating. The Rig Vedic people were primarily pastoral in nature. Cows and
bullocks were their chief possession. These were the chief forms of wealth and a
wealthy person was called gomat. They practiced pre-Aryan forms of tilling the soil,
which implied that the cutting of furrows in the field with wooden ploughshare.
Grain used, most probably, was Yava and Barley after 60 days of ripening. The
Neolithic people grew wheat. Rice too was grown, although this cultivation did not
take place until a later period.
That the Rig Vedic people were pastoral is also suggested by the use of the
term Vraja which denotes a cowpen. Settled life was promoted by cultivation and
cattle rearing. This pre-supposed sedentary life. This led to the institution of
property, which consisted of livestock, such as cows and horses, sons too, sheep,
chariots and plants. Land was included in property later on.
Land was still not a constituent of property in the Rig Vedic period. The Rig
Vedic people attached a great deal of importance to cattle rearing than agriculture.
The success of agriculture depended on various factors. The use of wooden
ploughshare was found to be unsuitable for the deep cutting of furrows and hence
the annual yield remained poor. At this stage the use of iron ploughshare was
17
unknown and there was no assured water supply. This explains why the Rig Vedic
people shifted their cultivation from riverbank to riverbank. The Rig Vedic people
occupied only small pieces of land, which did not last long. Also, a sacrificial fee
(dakshina) was paid in the form of cow. This means land was still not considered to
be a part of property. Land was not included in the list of gifts, unlike cattle, slaves,
chariots and horses. Still clans owned lands and cattle which were handed down to
future generations.
In the Rig Vedic period the various operations of agriculture, such as
ploughing, sowing, reaping and threshing were done by family labour. There is no
reference in the Rig Veda to hired labourers or wage earners. Only domestic slaves
are mentioned. They may have been the earliest wage earners who were fed and
maintained by the members of the families. The absence of hired labour succeeded
in inhibiting the accumulation of private property in this age.
In the pastoral economy of the Rig Vedic age no term occurs to denote leasing
and hiring, lending and borrowing, sale and purchase and trade and commerce. In
the absence of coins in the Vedic age, there was no practice of money lending on
interest and the lack of surplus could not foster commerce. Buying and selling were
carried out through the widespread use of the barter system.
The Rig Vedic people were migratory. They were thinly scattered and their
special needs were easily met by the pastoral economy. Pasturelands were fully
looked after. The pastoral economy was characterized by the unequal distribution of
wealth. The chief had everything. At the same time poverty was not grinding in this
period.

5.8. The Peasant Phase:

The peasant phase began with the termination of the migratory habits of the
Rig Vedic people. Settled life was encouraged. Sedentary life presupposed assured
and continuous means of subsistence. The importance of agriculture was realized by
the tribal people. Agriculture became the main occupation of the tribal people.
Increasingly, field agriculture assumed an important role. Iron was used to make
weapons for the clearance of forests. In the Atharveda virtues of relying on livestock
is extolled for the development of agriculture. The Satapatha Brahmana gives a
graphic account of the various operations of agriculture in the Rig Veda. The
Atharvaveda discusses means of dealing with draughts and excess rains leading to
floods. Irrigation became an important topic of discussion in the Vedas.
The later Vedic texts depict the existence of a society that was essentially
agricultural in nature. The Rig Vedic people produced not only barley, the main
grain of the Rig Vedic period, but also wheat, rice, pulses, beans and sesumum. The
cultivation of different types of cereals and pulses points to the prevalence of an
18
economy that was more than just a subsistence economy. The peasants produced
enough to meet their own needs, leaving a small surplus with which they maintained
the non-producing class such as the priests, princes and their retinue, artisans and
agricultural labourers. Peasants were the only producers in this phase.
The use of iron implements for the practice of agriculture was not that
widespread until about 600 BC although iron sickles and other small implements
were known to the Rig Vedic people The Atharvaveda prescribes sacrifices for the
peasants for the acquisition of material benefits. Increasingly, the ruling class tried
to establish their control over the peasants. Rituals were invented to meet this
requirement. Gradually, the burden of taxation fell on the shoulders of the peasants.
Taxes were collected in kind at the rate of 1/12th or q/10th of the produce. The peasant
phase witnessed the spread of a food-producing economy. The availability of surplus
remained limited at this stage. Around 500 BC booming agriculture began to emerge.
This sedentary and settled agricultural life led to the beginning of property, which
included livestocks, such as horses, as well as land, in addition to other items.
Everything was preferred to be owned collectively according to tribal practices.
Ideas of individual property rights had still not fully emerged.

5.9. Urban Centres:

Urbanization envisages a state of development in which, inter alia, (a.) exists

a compact conglomeration of inhabitants within a delimited area, (b.) there is a
central governing organism, and (c.) material production units exist. Such conditions
cannot be expected to exist in a rural society. Urban centres can flourish only when
an agriculturally prosperous hinterland exists because economic activities depend on
rural areas and the urban people are fed by the villages. Commercial intercourse
enabled the urban centres to acquire vitality, to accumulate wealth, and greatly
ramify the orbit of their business operations.
India in 600 BC met most of these requirements. This period has been aptly
described as the second phase of urbanization in ancient India. The use of iron
ploughshare and other iron implements played a crucial role in opening the thick
vegetations of the middle Gangetic basin and northeastern India. These implements
made cultivation possible in these regions. This new spurt in agriculture led to the
production of surplus on a scale never attained before and for the distribution of the
social surplus developed trades and towns. The ground was thus prepared for the rise
of urban settlement.

5.10. Guilds:

19
 Guilds played a significant role in the promotion of trade, crafts and industries
in ancient India. Some people following the same profession organized themselves
into compact bodies for the promotion of their individual as well as collective
interests. These bodies were called guilds. Exploitation of one class by another has
also led to the formation of guilds. Corporations were formed for the carrying out of
economic activities. They were called kula, sreni, sangha, jati, etc. Several factors,
such as (1.) freedom for the industrial classes, (2.) localization of industries, (3.)
heredity of occupations and (4.) growth of industries caused the emergence of guilds.
The guilds were headed sreshthis who were assisted by an advisory council. The
strongest factor that bound the members together was the functioning of independent
laws of the guilds.

5.11. Agriculture and stockbreeding:

In ancient India, as in modern times, agriculture was the mainstay of both the
people and the government. Ancient industries were based on the basic principles of
agriculture. This explains why the promotion of agriculture was included within the
scope of state activities. Allied to agriculture was stockbreeding. It finds mention in
the Mahabharata and other ancient Indian works on statecraft. Cattle rearing played
an important role in the ancient Indian economy.
Agriculture could not make a rapid progress in the pre-Buddhist period, as
iron was not widely used in agricultural operations. But the period from 600 BC to
322 BC was marked by a significant change in the agrarian economy. This was made
possible by the widespread use of agricultural implements made of iron and iron
ploughshare both in the Gangetic basin and Bihar. Iron ploughshare enabled deep
and continuous ploughing of the hard clay soil in the alluvial tracts. This prepared
the ground for planting mustard, paddy seedlings and sugarcane. Iron technology
revolutionized agriculture in more ways than one. Improved knowledge of
agriculture and effective use of agricultural tools such as hoe and spade in addition
to iron ploughshare contributed much to progress in this period.
On the basis of his readings of the extant Buddhist literature, R.S. Sharma in
his The Classical Age show how great importance was attached to agriculture and
how early Buddhist teachings gave special attention to different types of fields. In
one Sutta the field is classified into best, middling and bad. The Khetta Sutta refers
to eight types of fields where the yield was negligible. These included undulating,
rocky and pebbly, saltish without depth of tilt, without water outlet, without inlet,
with no watercourses and without dykes. Those that possessed the opposite qualities
were said of the good type. The detailed description of the different types of fields
suggests that the peasants had acquired adequate knowledge about wet paddy
cultivation. The Jnatadharma Katha gives a graphic description of the entire
20
operation involved in the cultivation of paddy. The Suttanipata identifies agriculture
with the maintenance of cows. A person who lives on cattle rearing is identified with
a cultivator. These measures made possible the stabilization and promotion of
material life.
Kautiliya advises the state to maintain its own farms, worked on by forced
labour, under the supervision the superintendent of agriculture (sityadhyaksha).
From these model agricultural farms qualities seeds of various crops were grown
which were then distributed to the peasants. Varahamihira in his magnum opus,
Brihasamhita gives an elaborate set of rules for the preparation of the soil, for
grafting of trees and for watering the trees during the proper season. He also gives
rules for spacing the trees, for treating their diseases and for promoting the growth
of fruits and flowers. There are elaborate directions for the treatment of seeds and
digging the pits for sowing them. Forests were grown for breeding elephants that
were necessary for economic and military purposes under a special conservation of
forests (nagavanadhyaksha). The state assured safety for agricultural operations.
Brishaspati lays down that stealers of agricultural implements or crops must be made
to pay ten times to the owner as damages and double the damages to the state as
fines.
The importance of irrigation to Indian agricultural conditions was fully
recognized. The Girnar Inscription says that the Sudarshan Lake was built under the
order of a Mauryan ruler by the governor of Saurashtra, Yavanaraja Tusyapa. The
embankments of the lake were repaired during the reigns of Rudradaman I (2nd
century AD) of western India and Skandagupta of the Gupta dynasty. In the 11th
century AD Paramara Bhoja built a major lake in Bhojpur near Bhopal. The King
of Kashmir, Avanti Varman built streams from the Indus and Jhelum. The Persian
waterwheel (arahatta), formed by an ox, was used in North India in the early
medieval period.

5.12. Quasi-feudalism and feudalism:

The relationship that existed between the victorious monarch (the overlord)
and the vanquished who agreed to serve the victorious in the capacity of a tributary
is described by A.L. Basham as quasi-feudalism. According to him the complex
structure of contractual relationship covering the whole society from king to villain
that existed in medieval Europe was absent in ancient India. Kautiliya advises the
powerless king to render voluntary homage to a stronger neighbor. There are
instances in ancient Indian history where a large kingdom exercised direct control
over the central core of the territory while the surrounding vassals with their petty
local chieftains governed the remaining parts of the empire. For instance, the the
relationship between the Rashtrakutas, Chalukyas and the Hoysalas was one of
21
quasi-feudalism. The Cholas too existed within this mode of political and economic
power.
To illustrate how quasi-feudalism arose we need to look at the evidence given
by present day Bihar’s Dudhpani Inscription of 8th century AD. The inscription
suggests that patronage mongering and the show of loyalty led to the creation of
zamindaris and vassalages. This system does not approximate to western India.

5.13. Feudalism:

There is a great controversy regarding the existence of feudalism and

manorialism in the landed economy in ancient India. In European feudalism the lord
was the holder of all the lands in his realm, which he let out to barons and tenants-
in-chief stipulating certain conditions. The Barons had to make some payments and
provide supplies on occasions as well as troops in times of war. On the death of a
tenant his successor had to pay a fine to the king and succeed to the estate. Similarly,
the tenant had to pay a fine when he sold or gave away a part of his land to a stranger.
In addition, he had to make payments and supply articles to the master when his
eldest son was knighted, at the marriage of his eldest daughter and when he had to
pay a ransom.
The term feudalism comes from the term feudum which refers to military
organization. According to some the system of land tenure in India can be well
compared to the manorial system of land tenure. Vijay Kumar Singh in his
Historiography of Indian Feudalism compares and contrasts the European and Indian
manorial system. The European manorial system of land tenure was interwoven with
economic, social and administrative organization in the middle ages. According to
his system the land tilling peasants were at first attached to the landowning class.
The nucleus of this system was the manor. The manorial system in Europe was
economically a self-sufficient unit in an age of economic decentralization and barter
economy.
D.D. Kosambi and R.S. Sharma have described the Indian model as Indian
feudalism. Sharma says that kings transferred their administrative and judicial
authority as well as the ownership of economic resources to the beneficiaries. The
Guptas granted fiscal and administrative immunities to the beneficiaries. The
Vakataka records show how the ruler gave up their control over almost all the
sources of revenue, including pasturage, hides and charcoal, mines for the
production of salt, forced labour and all hidden treasures and deposits, when they
made the grants. The Gupta and the post-Gupta land grants indicate that the donors
gave up the right to govern the inhabitants of the villages that were given the grants.
There are also instances of the donors asking the inhabitants, cultivators and artisans
to pay the customary taxes to the donee and obey his commands. The government
22
officials and the soldiers were directed not to cause any disturbance to the Brahmans.
This points to the surrender of administrative powers of the state. Later, the
Brahmanas were granted the right to punish thieves and all offences committed
against family, property and persons. According to R.S. Sharma, gradually the
powers of the state were transferred to the priestly class first and then to the warriors.
While making grants certain conditions appear to have been imposed. These
conditions included the donee’s responsibility (1.) not to commit any treason against
the state, (2.) not to hurt a Brahman, (3.) not to steal or commit adultery, (4.) not to
poison the king, and (5.) not to wage war against any other village chief. The purpose
was to secure the support of the priests and prevent them from acting in opposition
to the state.

5.14. Feudalism in Bengal:

Feudalism in Bengal was unique. The land grants made in Bengal differed
from what has been explained until now in two respects. Firstly, these grants were
the results of sale transaction affected by individuals which involved only the
transfer of revenues from land, which the done could enjoy in perpetuity. Secondly,
they were made with the consent of the central government and carried immunity
from taxes only. The done had no right to alienate or grant his rents or lands to others.
These grants do no illustrate true sub-infeudation.
Whatever might be the intentions of the donors, feudatories and private
individuals, the grants helped in creating powerful intermediaries who wielded
considerable amount of economic and political power. Some of them gradually shed
their priestly functions and their turned their attention to the management of land
and other similar activities. The Kathasaritsagar mentions a royal priest who
enjoyed the grant of one hundred villages and thus became a samanta. Temples and
monasteries also became landowners. In the area of a landlord the original title of a
cultivator or soil-occupants must have been interfered with to some extent. It may,
therefore, be suggested that in some cases the peasants might have been reduced to
the state of sharecroppers and temporary tenants. These developments demonstrate
how land grants in ancient India gave rise to feudal conditions.

6. Legal History of Ancient India:

23
6.7. Legal Literature:

At the end of the Vedic age, the sacrificial instructions of the Brahmans
became obscure necessitating the composition of a new group of texts to elucidate
them. This special class of literature is called sutras.
The term sutra originally meant a ‘thread’. It was used with the secondary
meaning of a manual instructions on several subjects, written in short sentences,
running through a topic like a thread. So a sutra is a “short sentence, in as few words
as possible, giving a clue to learning, stored in a particular topic and forming a part
of a particular book. Both by their form and object, the sutras constituted a class
themselves. During those days, instructions were given orally and this enabled the
summarizing of the entire exposition which rendered its memorizing easy. The
intricacies and complexities of the post Vedic rituals had to be scrupulously observed
in every small details which occasioned the development of this form of literature.
A sutra should be brief in form but at the same time unambiguous in its meaning.
The Kalpasutras are the oldest sutra works. It has three classes: 1.
Srautrasutra, 2. Grihasutras, and 3. Dharmasutras.

1. Srautrasutras: They are based on sruti (that which is heard). They deal with
Vedic sacrifices and are important “for the understanding of the cult of sacrifices”
as well as “for the study of the history of religion”.
2. Grihasutras: They deal with domestic religious ceremonies or samskaras.
Estimating the relative importance of the Grihasutra ceremonies, Max Mueller
said: “… though the Srautrasutras may seem of greater importance to the
Brahamanas, to us the Grihasutras will be more relevant since they deal with the
everyday events of human life. Both of them lay great stress on social welfare
and prescribe elaborate rules for the governing of the society concerning religion,
domestic duties and mutual relationships between different members of the
society.
3. Dharmasutras: This is a manual of human conduct. The difference between
Dharmasutra and Grihasutra is that in Dharmasutras we find a discussion of the
wider relationship between man and the state. They deal at length with the duties
of varnas and the ashramas, social usages, customs and practices of the quotidian
lives. The beginnings of civil and criminal laws can be assigned to this period.

Under civil law such topics as taxes, inheritances and the status of women have
been included. Under criminal law assaults, adultery, and thefts are included.
But not all men and women are equal in the eyes of Hindu law. The rules of
punishment have been based on class (varna). While an offence committed by a
sudra invited capital punishment for the same offence a Brahmana went away scot-
24
free. At best, he (the Brahmana) washed off his sins by performing penance. The
authors of the Dharmasutras were not of one mind and there are noticeable
difference amongst them both regarding ideas of crime and punishment.
The Dharmasutras are our earliest sources of Hindu law, the most important
being those attributed to Gautam, Baudhayana, Vasistha, and Apasthamba. Later,
from the early centuries of the Christian era onwards, prose was reworked in verse
and the new works were called Dharmasastras or instructions on the sacred law. The
difference between the two is one of style although the Dharmasastras are
distinguished by greater concentration on law. They are also called smritis (that
which is remembered) and have played a notable part in molding the life of the
Hindus. Indeed the codes expand and systematized the socio-religious regulations of
the orthodox Brahmanical culture. They are also accepted as the only authentic
guides to laws, customs and duties. They are declared to be of divine origin.
With the passage of time it was realized that Vedic hymns are not only
difficult to understand but also to relocate in current practices. They are found to be
inadequate for the regulation of large segments of social life that had become
complex. The regulation of the codes found ready acceptance and were soon to be
absorbed into the traditions. The codifiers acquired an exalted status as the Vedic
poet-sages and ordinances attained a stature compared to the Vedas. Ultimately, in
cases of conflict the smritis came to represent an authority superior to that of the
traditions though the Vedas were not disregarded altogether.
The jurisdiction of the Dharmasastras comprised the whole life. In course of
time, numerous smritis came to be composed, the earliest of which is that of Manu,
probably composed in its final form in the 2 nd or 3rd centuries AD. Other important
smritis after Manu are those of Brihaspati, Yajnavalka, Vishnu, Narada, and
Katyayana, all of which date from the Gupta period. As the regulations of these
codes had to be adapted to social needs, a commentary on the law codes was seized
upon as a ready and simple guide to the sacred law and custom. The authority of the
commentaries and digests played a significant role in the evolution of Hindu law.
The Dharmasastra combine the practical with the ethical. They deal with
many topics such as the varnas, ashramas, their privileges, obligations and
responsibilities, the dharma of the ksatriyas and other kings, judicial procedure and
the sphere of substantive law such as crimes and punishments, contracts, partitions
and inheritances, adoption and gambling, etc. All the smritikaras attached the
highest importance to moral qualities and enjoined them upon all. But the main aim
was a practical one, viz. to guide the Hindus towards righteous acts in their everyday
lives. They dealt more elaborately with acts, rites and ceremonies that each person
has to perform according to his station in society.
The authors of the smritis were Brahmanas. Naturally they represented the
Brahmanical views. The Arthasastra was more secular and differs from the smritis
25
in many particulars. The outlook of these authors was semi-religious and semi-
moral. They considered governmental and political processes in the light of Vedic
canons. The Dharmasastras rely on deductive reasoning. The Arthashastras on the
other hand rely on inductive reasoning. The Arthasashtras depend on the Vedas for
validation as much as the Dharmasashtras. Kautiliya enjoyed relative intellectual
freedom and his contribution lies in the separation of political speculation from
theology. But this need not be taken to imply a repudiation of orthodoxy.
The Dharmasastras lay the greatest emphasis on dharma while the
Arthasashtras lay emphasis on artha. The Arthasashtra do not ignore dharma but
they mainly deal with matters of central and local governments, taxation, arms and
alliances, appointment of officers, punishments, etc. The Arthasashtra aimed to
wean away men from thoughts of ascetism to problems of social life. In the
Arthasastra idealism is less significant than power politics and materialism. The
Dharmasashtras acquired tremendous importance after the age of Manu. It became
a watchword with many kings in ancient India. The smritis became authoritative
over the ages. The Dharmasashtras set for themselves high standards, goals and
ideals which went a long way in preventing the disintegration of society.

6.8. Dharma:

Dharma is a compendious term for all the righteous code of conduct in every
sphere of human activity which is meant to ensure peace, harmony and happiness to
the entire humanity. It is not religion as wrongly translated into English. Religion is
only a mode of worship of God by those who believe in God. There are numerous
religions which have their own followers and have their own method of prayer or
worship. Religion divides humanity but, Dharma unites humanity. It applies to all
human beings irrespective of their religion, including those who do not believe in
God and consequently who do not belong to any religion.
There is no prefix ‘Hindu’ to the word ‘Dharma’. It came to be added only
after the word ‘Hindu’ was given to the dwellers of the Indus Valley, by foreign
invaders and the Country came to be called ‘Hindustan’. Therefore, Hindu Dharma
only means ‘Dharma’ originated in this land which came to be called Hindustan, in
the course of history and not religion.
Sarvajana Narayana in his celebrated work ‘Hitopadesha’ [Worldly Wisdom]
has in his inimitable style indicated that observance of Dharma is the distinction
between human beings and animals and has said thus:

Consumption of food, sleeping, fear and sexual enjoyment are the

common attributes of both man and animals. But the specific attribute

26
 of man is his capacity to obey the rules of Dharma. Bereft of Dharma,
man is no better than or is equal to, animals.

Mahanarayana Upanishad has given a very enlightening answer to the question why
Dharma is regarded supreme, in the following words:

Dharma destroys sinful thoughts. Therefore, Dharma is supreme.

The meaning is, if values of Dharma are inculcated in an individual since

childhood, it remains throughout his life. The values of Dharma so inculcated also
establishes control over the ‘Indriyas’ [sense organs] and prevents them from
indulging in wrongful actions.
Thus, 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, Manu Smriti
declares “Protect Dharma, it will in turn protect us, instead if we destroy Dharma,
it will destroy us”. Probably there cannot be a better advice to human beings to
enable them to secure happiness. The purport of the declaration in Manu Smriti is, it
is only when a substantial number of persons are of Dharma abiding [law 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. This is the situation which we are facing at present.
Therefore, the only remedy for the present ailment is to create more number of
Dharma abiding citizens.
The vastness of Dharma and its universality and usefulness to the entire
humanity has been clearly explained by Justice K. Ramaswamy, speaking for the
Supreme Court in A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR, 1996
SC 1765 at paragraphs 62 to 81. The conclusion at paragraph 81 reads:
Word ‘Dharma’ denotes, upholding, supporting, nourishing that which
upholds, nourishes or supports the stability of the society, maintaining
social order and general well-being and progress of mankind;
whatever conduces to the fulfillment of these objects is Dharma. It is
Hindu Dharma.

[Justice M. Rama Jois, Ancient Indian Law: Eternal Values in Manu Smriti,
Delhi, Universal Law Publishing Co. Pvt. Ltd., 2002]

6.9. Three Branches of Dharma:

27
 The three branches of dharma are as follows: (1.) Achara or sadachara (good
or right conduct), morality and duty, (2.) Vyavahar (the process by which good
conduct is to be performed, i.e. the application of substantive law) and (3.)
Prayascitta (ritual expiation of making a man spiritually, culturally and socially
pure, i.e. the performance of penitence).
The first branch of dharma is concerned with ethics, which is in turn
concerned with the science of morals, which deals with human character and
conduct. This involves the speaking of truth and the practice of ahimsa. According
to the Manusmriti it is the highest dharma. It is also ati sukshma (extremely subtle).
(source: The Divine Life, https://www.sivanandaonline.org)
The second branch, vyavahar, is sufficiently developed in Hindu law. It laid
down the two main categories of law: substantive and procedural norms that the state
was required to observe and enforce. Substantive law is that law that helps us govern
how we behave in society. It defines the rights and responsibilities as well as crimes
and punishments in civil law. It is either codified in statutes or exists through
precedents in common law. It creates, defines and regulates rights. The law of
contracts, torts, wills and real property and the essential substance of rights under
laws come under substantive law. Procedural law, on the other hand, is a set of
procedures that help us in making, administering and enforcing substantive law.
Procedural law or adjective law, or rules of court consists of the rules by which a
court hears and determines what happens in civil, lawsuit, criminal or administrative
proceedings.
Procedural law and substantive law are different from each other in terms of
the modalities. Procedural law provides that a case has to go through (whether it
goes through a trial or not). Procedural law determines how a proceeding concerning
the enforcement of substantive law should occur. On the other hand, substantive law
decides how the facts of a case should be handled, and also how the crime is to be
charged.
Increasingly there was an emergence of Hindu law from the shadows of
dharma and its establishment independently as just vyavahar.
The third branch, prayascitta or prayascitti, means atonement, penance and
expiation. The dharmasastras prescribe this as an alternative to incarceration or
other forms of danda (punishment). In religious texts it is often used in the context
of adultery. The origin of this concept is to be found in the Brahmana layer of text
in Samaveda.

6.10. Ten attributes of Dharma:

1. Contentment
28
2. Forgiveness
3. Forbearance
4. Non-attachment to worldly matters
5. Non-avarice
6. Purity
7. Control or subjugation of senses
8. Spiritual knowledge
9. Truthfulness
10. Being devoid of anger

[Manusmriti, Ch – VI -92]

6.11. Five Common Rules of Dharma:

1. ‘Ahimsa’ [Non-violence] which means to not inflict mental or physical injury

on fellow human beings; not indulging in violence against anyone;
2. To be truthful and honest in speech and action; non-stealing;
3. Not acquiring money or wealth by illegitimate methods; immoral/illegal
methods;
4. Cleanliness of mind and body; i.e. conformity in thought, word, and deed
[Trikarna Shudhi], which means that there should be conformity with the
thought in the mind, the words spoken and the action performed;
5. Control of senses by restraining them from indulging in wrongful actions.

[Manusmriti, Ch – X – 63]

6.12. Judicial Institutions in Ancient India:

There is no clear reference to the existence of judicial organization in the

Vedic period. It appears that the village elders acted as judges and punishment was
awarded according to the nature of the offence, based on the nature of the offence
and local usages and customs. It is difficult to say whether there was any difference
between civil and criminal law. Law was both legal and moral. In that way, ancient
Hindu law was half law, half morality. There was very little judicial organization or
procedure of law. Justice as a distinct branch of law was still in the making.
In ancient India the administration of justice was thoroughly centralized. It
was always separate from the executive and generally dependant in form and ever
independent in spirit. The king was the fountainhead of justice and dispensed with
justice. He was his own executioner. The growing and settled order of society made
it impossible for the king to carry out all functions of the judiciary. As a result the
29
administration of justice was delegated and entrusted in the hands of legal experts.
The king’s court was reserved for appeals and serious crimes against the state. The
rest of the litigation was entrusted to various other courts.
The Brihaspatismriti speaks of four kinds of courts: 1. Pratishita (courts fixed
at one place, such as a town), 2. Apratishita (circuit courts), 3. Mudrita (courts
presided over by a judge carrying the Royal Seal), and 4. Sasita (King’s courts). The
Naradasmriti too talks of various courts, such as Kulani (village councils), sreni
(guild courts) and gana (assemblies). Other courts, such as janapadasandhi,
sangrahana, dronamukha and sthaniya too existed in the capital towns and the
districts. In the Sanchi Stone Inscription of Chandragupta II, we read about the
panchamandalis that resembled the modern panchayats, which were and still are the
basic unit of the Indian judiciary. These panchayats were based on the sovereignty
of the people.
The organization of the courts with different powers of jurisdiction was a
distinctive feature of the ancient Hindu judiciary. Preference was shown to a bench
of magistrates over a bench of judges. A story in the Jataka tales speaks of a bench
consisting of five magistrates. Kautiliya advises the king to establish a court with a
bench of three magistrates for every ten villages, with higher courts in the districts
headquarters and the major cities. The Manusmriti suggests a bench composed of
pradvavika (chief justice) and three other judges. The constitution of the court
described in the Mrichchakatika consisted of adhikarnika (chief Justice), sreshthin
(wealthy merchant) and kayastha (scribe). This court was presided over by the king
and was the highest court of appeal. Regular courts came into existence in the
Mauryan Empire.

6.13. Different Types of Courts in Ancient India:

In the Vedic period courts were still not organized on any systematic basis.
The sabha, which was a sort of a national judicature, exercised judicial functions. In
the Purushamedha sacrifice the sabhacara is dedicated as a victim of dharma
(justice). The sabhacara was a member of a law court who participated in deciding
of cases. Sabhasads were assessors who decided legal cases in the assembly.
Probably, a standing committee of the assembly exercised judicial functions. K.P.
Jaiswal suggests that the sabha was a judicial body.
The Jataka tales and the Dharmasashtras give evidence of the continuance of
the judicial character of the sabha even in later Vedic times. An old memorial
preserved in the Jataka tales claim that the sabha has to have men of high moral
standards who uphold justice. The Dharmasutras and the Smritis also point to the
continuance of the sabha as a judicial body.

30
 Prior to the constitution of regular law courts, around 4th century BC, trials,
held in the open, were presided over by the king, a chief judge and assessors versed
in the scriptures. Kautiliya, in his Arthasashtra, mentions two types of courts. They
were Dharmasthiya (civil courts) and Kantakasodhana (criminal courts). We find
mention of the same courts in the Manusmriti. The civil courts dealt with disputes
involving contracts, trespass, inheritance, labour, libel, marriages, dowry, deposits
and interests. These courts were composed of six judges and were larger than
criminal courts.
The criminal courts, according to Kautiliya, dealt with the following topics:
1. Protection of artisans and merchants, 2. Suppression of undesirables, 3. Detection
of criminals by means of espionage, 4. Arresting the suspected or real culprits, 5.
Holding of post-mortem examinations, 6. Maintenance of discipline in various state
departments, 7. Punishment for mutilation, 8. Capital punishments, 9. Punishments
for immoral acts, 10. Examination by word and action thereon, 11. Miscellaneous
offences.
The criminal courts were meant to protect the doctrine of police power. There
are detailed instructions in the Arthasashtra for the investigation of cases of
homicide and suicide. The civil and criminal courts point to the growing needs of an
increasingly complex social economy. They point to the existence of a highly
developed bureaucracy.

6.14. Courts of the Guilds:

Movements for the organization of the guilds started towards the end of the
Vedic period. Panini refers to gana, pugavrata and samgha. We see in these terms a
trend among the artisans and merchants to form their own corporations for purposes
of economic activity, the object being to gain wealth by pursuing their own
profession. There were guilds in every important town embracing all trades,
industries, arts and crafts. There was even the guild of thieves. ‘The guild united
both the craftsmen’s cooperatives and individual workmen of a given trade into a
single corporate body’. The smritikaras recognized their importance in the society
because on their labour and skill rested the whole edifice of the society.
The guilds had their own rules and regulations called srenidharmas, which
were binding on their members. The Dharmasastras recognized the validity of the
laws and customs established by the guilds. Manu recommends that srenidharmas
were also to be counted as a source of customary law. Manu, Yajnavalkya and
Narada invest the customs of the srenis and other such bodies with legal authority.
According to Narada, the king should give his approval to the rules and laws of the
guilds.

31
 Among the smritikaras, Yajnavalkya was the first to mention specifically
three popular courts, namely kula, sreni and puga arranged in an ascending order of
importance. Brihaspati adds: “When a cause had not been examined by sreni, it
could be decided by gana and finally by the royal judges”. Narada also mentions
these popular courts. He invests these courts with the power to decide lawsuits, each
succeeding one being superior to the preceding one in order. It is evident from this
that the guilds had their own executive committees and they functioned as courts to
settle disputes among their members according to the laws of their profession. The
king and his government upheld the laws of the guilds.
The guild had judicial rights over its members. If any one of their members
were involved in practicing fraud, he was required to clear off on oath or ordeal. The
Dharmasutras and smritis recognized the agreement with the guilds and any breach
thereof was met with punishment ranging from heavy fine or imprisonment to
confiscation and banishment. Brihaspati permits the guild courts to punish the
wrongdoers from mild censure and rebuke to repulsion. ‘A guild court, like a caste
council, could expel a refractory member, a penalty which could virtually preclude
him from practicing his ancestral trade and reduce him to beggary’. Narada requires
that those who caused dissention among the guild members must be inflicted with
punishment of the severest kind; otherwise, they would prove extremely dangerous,
like an epidemic, if they were allowed to go free. We learn from the Buddhist
literature of guild courts settling quarrels between members and their wives.
Generally, the heads of the guilds visited the offending members with verbal
censure or excommunication and the king approved the penalties. The guild
members enjoyed some privileges. When their own members were involved in
disputes of serious nature the guild came forward and rendered assistance for their
settlement. The Anantakirti anecdote admirably brings out the judicial procedure
followed by these courts, which acted as courts, held proper hearing, examined the
problems at length and finally pronounced the judgments.
The state, though recognized the rights of the guilds over its members, did not
forsake its obligation towards them as its citizens. Brihaspati requires the king to
interfere in cases where the heads of the guilds, actuated by hatred, tried to injure a
single member and restrain and punish them. The guilds were not allowed to exercise
their powers like autocrats because ultimately they were responsible to the state.
There are instances where the members of the guilds sought state intervention in
respect of the verdict of the guild court. Katyayana requires the members of the
guilds to observe the conventional rules of their corporation as also the rules and
regulations of the state. This is the basis of the remark that “the authority of the
guilds was not derived from the delegation of power from above but had an
independent existence”. But they could not exercise their independence to settle

32
scores with their adversaries. The security of an individual from the injustice of the
guild was thus rested on the state.

6.15. Role of the Village Panchayats:

There were popular courts in the villages called Village Panchayats, which
were invested with judicial powers. Kautiliya says that the village court was presided
over by the gramavriddha. The popular village court played a prominent part almost
throughout the long course of Indian history.
The Agni Purana compares the administrative set-up of the village with the
working of the body organism. The five senses of the body are compared to five
householders of the village council. The soul is compared to the mahattara [chief]
of the village. The head of the village with the advice of the five councilors who
strove for the successful working of the body politic of the village. Bana makes a
similar comparison between the panchendriyas [five senses] of the body and the
panchakuta of the village.
The village panchayats performed judicial functions. These popular courts
settled disputes among the inhabitants of the village. Governments in ancient India
encouraged these popular courts to enforce their decisions. Though they were
essentially non-official and popular, they had the royal authority behind them.
Yajnavalkya describes these village courts as sanctioned by the king. The
government has been advised to execute their decrees because the state had
delegated these powers to them. The judicial procedure of these courts was similar
to the royal courts with some jurisdiction. They, however, did not deal with criminal
cases of a serious nature. Nevertheless, they disposed of cases like accidental
homicide, suicide, etc. the Arthasastra invests the gramavriddha with the power to
punish thieves and adulterers. The Chola inscriptions give a graphic description of
the village assemblies, which were completely autonomous and were characterized
by democratic principles.

6.16. The Initiation of the Procedures:

Ordinarily procedure of accusations followed. A plaintiff first files plaint

before the registration officer containing particulars of the claim, the year and the
place, the nature of the offence, etc. the officer of the court called lekhak or writer
recorded it. The plaintiff was at liberty to alter his plaint when it was defective and
redundant till the defendant had tendered his answer. When the judge found that the
matter was legally entertainable, he delivered a sealed order to the plaintiff or
ordered the bailiff to summon the defendant. Yajnavalkya makes provision for
writing down the plaint when the plaintiff prefers the complaint first and again in the
33
presence of the dependant. In any discrepancy between the two versions could prove
fatal to the cause. ‘This provision is very important as the plaintiff has to prove his
case, first, prima facie, and the plaint on examination discloses defects then the
process to the case cannot be issued. Thus great precaution is taken by Hindu jurists
so that an unscrupulous complaint may not harass the innocent people. The
smritikaras say that plaint which contained an imaginary grievance, disclosed no
injury contained letters or words making no coherent sense or contradictory
statement, wanting in propriety and vague should be rejected. According to
Brihaspatismriti, “a nirasthaka plaint where injury or monetary value was negligible
should be rejected”.
A clause in the Yajnavalkyasmriti requires that a lawsuit between a teacher
and a pupil, a husband and a wife and master and a slave, should not be entertained.
A rational katayana on the other hand recommends that priority should be given to
a plaint where the injury is greater or there is a cause more important requiring
immediate attention. There is also a clause in the Dharmashastra permitting the
plaintiff to make an appeal to the king to place the accused under arrest or restrain
his free movements until summons had been issued. Under special circumstances 2 nd
summons were allowed to be sent.
The legally maintainable complaint was read and recorded in the presence of
the defendant. The defendant was asked by the judge to file his reply (uttar). The
Dharmashastras require that in urgent and important cases, as well as in criminal
cases the defendant had to file the reply immediately. Kautiliya, in particular, was
opposed to this. If a plaintiff to whom a reply has been given (by the defendant) does
not reply on the same day, he shall lose his suit. For it is the plaintiff who has denied
beforehand what is to be done, not the defendant.
What prompted the Hindu jurists to frame rules regarding the characteristics
of a good defence, the defects in jurisdiction for the rejection of a defence, the way
in which the defendant was to present his reply, was to avoid injustice to the parties
to the dispute. The defendants reply was to satisfy all the points raised in the
complaint without deviating from the truth, not to employ vague words, not to be
self-contradictory and not to be such as needing further explanation. According to
Brihaspati, the reply should be in writing, should exactly correspond to the contents
of the complaint and should be clear, precise and free from absurdity and ambiguity.
The replies of the defendants were generally of four types: 1. Mithya (denial),
2. Satya (confession or admission), 3. Karana Pratyavasakandana (a special plea of
the demurer) and 4. Pranayana (reference to a previous verdict).
In reply the defence was not to mix up any two or more of the types described
above. The Dharmasashtras and the commentaries deal with and illustrate at length
on the defects in the replies, which demonstrate how procedural law was very
advanced and rules and pleadings were based on sound principles of jurisprudence
34
that compare favourably with modern principles of pleadings. The jurists did not
forget to protect the rights of a person who could not be himself present in the court
at the time of the hearing.
The last of the human evidences were the witnesses and our jurists have given
and elaborate list of those who were eligible or ineligible for deposition.

6.17. Trials:

The trial of a case began with the submission of a reply, in writing by the
defendant. It was now left to the judge, who heard both the plaintiff and the
defendant to determine on which of the party lies the responsibility of adducing the
burden of proof. The Hindu jurists laid down rules regarding the burden of proof in
a comprehensive manner. Generally, in the event of a denial, the burden of proof is
on the plaintiff in cases of protest or special plea or reference to former judgements
that the defendant had to commence the act of proving (kriya). In the event of the
evidence being equally strong the parties to the dispute and only the laws and
customs being divided, the Brihaspatismriti recommends mutual reconciliation
between the concerned parties through the passing of Royal Order.
The Yajnavalkyasmriti recommends that soon after the defendant’s answer,
the plaintiff should depose according to the pratijna and prove his claim. The pratijna
according to the Naradasmriti is the gist of a lawsuit. If he fails to do so, the plaintiff
loses his case. If he goes across it, he reaches his object. The Manusmriti is of the
view that “being asked, only when the defendant denies, the claimant shall prove his
case by at least three witnesses before the king and the Brahmanas”. These attest to
“the development of the adjective law”, and shows that “the administration of justice
in ancient India attracted the full attention of jurists”. It demonstrates justice
according to law and in consonance with the principles of jurisprudence and
accepted social norms. Every point in the case was subjected to close scrutiny.
Justice was not ready made.
Proof is divided into two classes: human and divine (divyam). Human
evidence was of three types: 1. Documents (lekhya), 2. Possession (bhukti) and 3.
Witnesses (sakshi). Divine proof consisted of ordeals. Ordeals were resorted to only
when the ordinary method of proof was not feasible. In cases of difference of
opinions among the parties to the disputes, i.e. one preferring human evidence and
the other divine evidence, the Katyayanasmriti requires that the kings accepts the
former. The ordinary procedure in trial was by evidence, while in extraordinary cases
recourse was taken to divine evidence.
There are instances of circumstantial evidence, particularly in the absence of
human evidence, being considered in the trial of cases. The classic example is

35
presented to us in Sudraka’s Mrichchakatika. In this play, circumstantial evidence
eventually proved Charudatta’s complicity in the crime.
Trials involved the examination of documents, title and possession and
evidence tendered by the witnesses. Hindu jurists did not leave any scope for
ambiguity in respect of human proof. They have defined the nature of a valid
document, and have classified them and brought out their utility. They were also
aware of false documents and have not only severely criticized this practice but have
also prescribed punishments for such offences. Similarly, the title of possession has
come in for a detailed treatment. Title in respect of movable and immovable
property, legitimate property rights, the duration of occupation which entitles right
to possession have all been discussed with meticulous details. It must be admitted
that our lawgivers have ensured adequate protection in case of possession to avoid
unnecessary harassment. They have shown equal concern for minors and women as
men so that they were treated equally by law.

6.18. The Role of Judges:

The Hindu legal texts set very high standards for the judges. They had to be
learned, religious, devoid of anger, and as impartial as humanly possible. Kautiliya
discusses at length the conduct of judges and prescribes punishments for dereliction
of duty. A judge may not threaten, unjustly silence, defame or abuse any disputant.
He has to ask what ought to be asked and not ask any inappropriate question. There
should be no delay in the discharge of a case. Unjust corporal punishment is banned
in the Arthasashtra. Falsification is prohibited. Securing of the loyalty of the judges
by spies is recommended in the Arthasashtra. The Vishnusmriti prescribes the
banishment and forfeiture of all properties of a corrupt judge. So clearly, the rule of
law did exist in ancient India. The Mrichchakatika and Dasakumaracarita also refer
to corruption in the Hindu judiciary. Charudatta in Mrichchakatika is a corrupt judge.
The trial of cases depended on the burden of proof, both human and divine.
When human proof failed, recourse was taken to ordeals, which were barbarous and
horribly superstitious. But these ordeals were rarely employed and remained locked
inside the lawbooks to serve as deterrents. P.V. Kane quotes a source which grants
to any learned Brahmin the right to give his views on a case, but they may not have
been a class of professional pleaders.

6.19. Law Making and Law Interpreting Process:

36
 A body constituted for the purpose of framing laws, in the modern sense of
the term, does not appear to have existed in ancient India. Till about the beginning
of the Christian era, the Vedas (Srutis) constituted the main body of law. They were
the paramount authority. The Vedas are considered to be sacred as they are
considered to be of divine origin. When society became more complex and Vedic
regulations were found to be difficult to regulate to current practices, the smritis
came in handy to fill this gap.
The smritis took in to consideration the needs of the changing society in
formulating laws to govern all aspects of life, secular and spiritual. Though they
drew heavily from the Vedas, the chief merit of the smritis lies in the regard they
show towards prevailing practices in society. In the history of Indian jurisprudence
we are met with, for the first time, ordinances or laws emanating from human authors
as opposed to divine authorship.
Kautiliya was the first thinker to conceive of statutory law. According to him
Royal order supercedes all other forms of law, including dharma. Further, he says
that in the case of a conflict between sacred and rational law, the latter supercedes
the former. Kautiliya’s emphasis upon the king’s supremacy in this regard is
didactic, although it is supported by Ashoka’s edicts. Kautiliya’s tract is the first
such texts that recommends that the state should take over the responsibility of law-
making to regulate large segments of the Indian society.
As for the corporations formed for the purposes of social and economic
activities, such as srenis and nigamas, etc., srenidharma or the rules and regulations
of the guilds are determined by the executive committee and they are binding on
their members. The king is required to take cognizance of srenidharma in deciding
disputes. The law making process in ancient India passed through at least three main
phases, divine authorship to human authorship, to finally the king, who is the
fountainhead of justice.
With the passage of time and recognition of statutory law, distinction between
moral law and positive law, and the sanction of both, came to be understood. In the
greater part of the Vedic period the seers interpreted the law. The authors of the
Upanishads were regarded as the seers of truth and such men, possessing knowledge
of the sacred texts, interpreted the law. They helped the king in all matters of the
administration of justice.
The Dharmasashtras demonstrate awareness about relating and tradition to the
changing needs of the community or evolving social conditions. This is most
apparent in the Yajnavalkyasmriti. The Dharmasashtras envisage a commission
consisting of learned Brahmanas to determine the needs of the common people and
assist the king in judicial administration. In this we see a definite step towards the
accommodation of various religious creeds and an attempt to cognizance of the rules
and customs in administering justice. Parishads, consisting of three, five even as
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many as ten members, well versed in the Vedas, interpreted the law, especially in
terms of what was and what was not. There were judges and assessors (sabhyas).
The introduction of pleaders, associated with the argument of the cases in the courts,
added a new dimension to the process of interpreting the law.

6.20. The concluding stage of the judicial procedure:

The concluding stage of judicial procedure was the verdict or nirnaya. Now
the king or the chief judge had to weigh carefully the evidence produced before court
and after seeking the interpretation of law by those verse in law, had to decide on
the victory or defeat of the plaintiff. In the Manusmriti we read about a parishad of
three to ten members for legal interpretation and legislation. According to him at
least of the members must be learned in each of the three Vedas – Rig, Yajur and
Sama. He emphasizes on the capability rather than the number of legislators in order
of ensure prompt and considered action. This parishad was expected to forestall
monarchic despotism and surround the legislative process with investigation,
discussion and promulgation in appropriate form. There were also assessors to give
their fair and balanced opinion. The king or the judge then pronounced the verdict.
The verdict was to be pronounced after the judicial assembly arrived at an unanimous
decision. According to Sukra, “In a case where there is no document, no possession,
no witness and no divine proof to prove and substantiate a claim, the king being the
lord of all, is to be the final authority”.
A document of victory is called a jayapatra. It was to contain the summary of
the complaint, the reply, the evidence and the decision. It was to bear the Royal seal,
and was to be signed by the pradvavika and other members of the tribunal. The
Jayapatra was to be preserved safely so that, whenever necessary, it could be
produced or referred to. No Jayapatra has come down to us. The first Jayapatra was
written in ancient Javanese. It pertained to a dispute of Saka 849 (928 A.D.) which
failed for the want of appearance by the plaintiff at the trial. Four witnesses had
signed at the end of the document. A jayapatra is a typical Sanskrit judgement,
complete, comprehensive, fully in consonance with the provisions of Hindu law and
wholly preserved in its contents.
Vijneswara speaks of a document called the hinapatra, which was a document
issued to a plaintiff when he lost a case for change of pleading or non-appearance or
non-prosecution, stating all the concerned facts. This was to be preserved for future
reference. The lower judicial officials enforced the judgments.

7. Conclusion:

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 In conclusion, Hindu law is an amorphous legal system which can be traced
back to various sources, mostly religious texts of the Hindu people. The Vedas, the
Dharmasastra tradition, including the smritis, numerous plays, pillar edicts and
inscriptions and numismatic sources bear evidence of the existence of a legal system
which may not have been the same throughout the Indian subcontinent but did exist.
Different legal systems of the different regions of India existed independently,
bearing testimony of the absolute importance the Hindu seers gave to the
independence of regional laws, all of which however drew inspiration from Sanskrit
sources. So the contention that there was no such thing called Hindu law may not be
incorrect, but there were some principles of law that were common to the legal
systems of all the regions in India. One such principle was dharma which is to be
found in all the legal systems of this subcontinent. A close analysis of what is
perhaps erroneously called Hindu law would reveal that different laws governed by
the exigencies of vernacular medium education and learning have over time come to
be seen as dharmic laws of the Indian subcontinent.

Source: Prof. Sreenivasa Murthy, History of India, Vol. 1

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