1

Judicial system and Administration of Justice in Ancient India

Dr.Shambhulinganand S.Shireshi.

For a long time even, murders were not regarded as offences against the state but as
simple torts, where mere compensation had to be given to the relations of the party murdered.
It is therefore no wonder that we do not find references to any judicial organisation in the
Vedic literature, which is at least a 1000 years earlier than the age of Manu.

 Vedic literature nowhere refers to the king as a judge either in civil or criminal cases.
Offences like murder, theft and adultery are mentioned, but there is nothing to indicate that
they were tried by the king or an officer authorised by him.

Normally it was the sabha or the popular village assembly rather than the king who
tried to arbitrate when it was feasible to do so.

If the terms Prasnin and abhiprasnin really mean plaintiff and defendant, they must
be referring to those litigants who submitted their disputes for settlement to the village sabha
either voluntarily or because they were too weak to help themselves. Madhamasi was rather
an arbitrator than a judge.

The Dharmasutras and the Arthasastra reveal to us a more or less full-fledged and
well-developed judiciary. The king was at its head and he was to attend the court daily to
decide disputes. It was his sacred duty to punish the wrong-doer; if he flinched from
discharging it, he would go to hell.

The Dharmasastra and Nitishstra literature regards the king as the fountain source of
all justice. His time table required him to spend every day about a couple of hours in
adjudication. In theory the king could entertain any suit, but in actual practice he could have
looked into only the important cases from the capital. He was often too busy to do even this
and used to delegate the work to the chief justice or to some other royal officer.

The king was also the highest appellate court. Narada points out how an appeal was
possible to the city court against the village court decision, and how a litigant could appeal to
the king against the decree of the city court. But whether a king decides a case properly or
otherwise, there is no appeal against his decision.

The king however was expected to be strictly impartial in deciding the cases or
appeals that came before him. He was to decide according to law; otherwise he would be
guilty. Dharma or law in India was not a measure passed by a legislature but it was religious
in nature which was based upon Srutis and Smrutis. They were sacred as super-human in
origin.

Pradvivaka or the Chief Justice, who deputised for the king during his absence, was
naturally a legal personality of high reputation. He was to be well versed both in substantive
 2

law as well as in the law of procedure. He was to be a master in the sacred as well as in the
customary law.

The most interesting feature of the judicial administration was the system of jury
(panel of judges). Even the king and the chief justice could not begin the trial of the case, if
they were not assisted by a panel of three, five or seven jurors. The number of jurors
(Sabhyas) was deliberately kept uneven to provide for the contingency of a difference of
opinion.

They were to be fearless exponents of what they believed to be the correct legal
position. A juror keeping prudent silence has been condemned. If necessary, the jurors were
to express their opinion, even if it was in opposition to that of the king; it was their duty to
restrain a wilful king going astray and giving a wrong decision.

The only exception was that of a difficult case, where the jurors could not come to
any definite decision. In such a case the king exercised his privilege of deciding the point
according to his own view.

The Smritis are almost unanimous in stating that the sabhyas or jurors should be
Brahmanas. The study of the Dharmasastra was usually cultivated in the Brahmanical
circles, and a deep knowledge of the sacred law was necessary for the proper discharge of the
duties and functions of the juror.

When the kingdom began to be fairly extensive ones after 600 B.C., subordinate royal
courts began to be constituted for important towns and cities. To judge from the evidence of
the Arthasastra, they were often located in the headquarters of territorial divisions, like
Sthana (which included about 800 villages), Dronamukha (which comprised 400 villages)
and Kharvatika, (which was exactly half the size of Dronamukha (200)). These courts
functioned under the authority of the royal seal and were therefore called mudrita in later
times.

There were special royal courts of criminal jurisdiction, known as Kantakashodhana

courts. According to the Arthasastra these courts took cognisance not only of the serious
crimes against the state but also of offences against society. Thus, if traders used false
weights or sold adulterated goods, or charged excessive prices, if the labour in the factory
was given less than a fair wage or did not do its work properly, the Kantakasodhana courts
intervened to punish the culprits. Officers charged with misconduct, persons accused of theft,
dacoit and sex-offences had to appear before the same court.

The Arthasastra polity was a highly centralised one, but it left a number of cases to
be decided by unofficial courts. Disputes about the boundaries were to be settled by the
village elders. Causes concerning the affairs of the temples, Brahmanas, ascetics, women,
minors, old and invalid persons were also to be decided by the Dharmasthas or unofficial
jurors. What precisely was the nature of these cases, and how and by whom the
Dharmasthas were selected and what was their number is not known to us.
 3

Yajnavalkya mentions three types of popular courts, Puga, Sreni and Kula which
were agencies of adjudication other than the official ones. Usually an appeal was made to
Sreni Court from the decision of Kula court and the same may be appealed to Puga court
from the decision of the Sreni court.

Kulas or joint families were often very extensive in ancient India; if there was a
quarrel between two members, the elders used to attempt to settle it. The Kula court was this
informal body of family elders.

When the effort at family arbitration failed, the matter was taken to the Sreni court.
The term Sreni was used to denote the courts of guilds, which became a prominent feature of
the commercial life in ancient India from 500 B.C. They are frequently mentioned in the
Buddhist literature and the Mahabharata gives a glorious description of the guild chiefs
assembled at the coronation of king Dharma (Yudhishtira). Srenis had their own executive
committees of four or five members and it is likely that they might have functioned as the
Sreni courts also for settling the disputes among their members.

The Puga court consisted of members belonging to different castes and professions,
but staying in the same village or town.

Ancient India appreciated and encouraged the village Panchayats and guild courts for
several reasons. They encouraged the principle of self-government. They reduced the burden
of the central administration. And above all they helped the cause of justice. The members of
a guild or a village Panchayat have more or less reliable knowledge of the facts in dispute as
the parties belong to their guild or locality. It is difficult for a witness to come to a village
court and tell a brand lie in the presence of his elders.

An appeal was possible against the decision of the Panchayat to the Tehsil or sub-
divisional Panchayat. The final appeal lay to the royal court as the capital.

Legal literature

            Ancient Indian society was not static, but dynamic and the changing needs of the
society had to be recognised first, followed by modification of the regulations to suit the
changing needs of the society and then enforced.

            In ancient India, the scope of law was all-embracing, covering, as it did, numerous
aspects of social and religious life, which lie beyond the jurisdiction of modern law-court.

            After the Vedic age, probably the sacrificial instructions of the Brahmanas became
unclear necessitating the composition of a new group of texts to elucidate them. This special
class of literature is designated as the Sutras. The term sutra originally meant a “thread”.

            A sutra is ‘a short rule, in a particular topic, forming a part of a particular book. Both
by their form and object, the Sutras form a class by themselves’. During those days,
instructions were given orally and this enabled summarising the entire exposition thereby
rendering its easy memorising.
 4

             The Kalpa Sutras are the oldest sutra works. It divides itself into three classes, the
Srauta Sutras, the Grihya Sutras and the Dharma Sutras. The Srauta Sutras are so called
because they are based on Sruti (heard), the Vedas. They deal with Vedic sacrifices and are
important “for the understanding of the cult of the sacrifice” as well as “for the study of the
history of religion”.

            The Grihya Sutras deal with domestic religious ceremonies of samskaras.
(https://youtu.be/8I0VnaRVw_Q). The Srauta and Grihya Sutras lay greater emphasis on the
idea of social welfare and prescribe elaborate rules for the governing of the society
concerning religion, domestic duties and mutual relations between different members of the
society.

The third class of textbooks are the Dharmasutras, the manuals of human conduct.
They deal at length with the duties of varnas and ashramas, the social usages, customs and
practises of every-day life. The beginnings of civil and Criminal Laws have to be assigned to
this period.

Under the civil law, they have included such topics as taxes, inheritances and the
position of women, while the topics under Criminal Law include assaults, adultery, thefts,
etc. But not all were equal in the eyes of law.

The rules of punishments were based on class (varna) considerations and while an
offence committed by a Sudra invited capital punishment, for the same offence a Brahmana
went scot-free. At best, he washed off his sins by performing penance or self-punishment.

The Dharmasutras are our earliest sources for Hindu Law, the most important being
those attributed to Gautama, Baudhayana, Vasistha and Apastamba. The Gautama
Dharmasutra which is the oldest is assigned to the sixth century and the remaining three are
placed between the sixth and fourth centuries B.C.

Later, from the early centuries of the Christian era onwards, the prose Dharmasutra
texts were reworked in verse form and came to be called Dharmasastras or instructions in
the Sacred Law.

With the passage of time, it came to be realised that the Vedic hymns are not only
difficult to comprehend but also to relate to current practise. They were found to be
inadequate for the regulation of large segments of social life that had become complex.

Ultimately, in cases of conflict the smriti came to represent an authority superior to

that of the tradition, though the Vedas were not discarded altogether.

The Dharmasastras combine the practical with the ethical. They deal with many topics
like varnas, ashramas, their privileges, obligations and responsibilities; dharma of
Kshatriyas and kings, judicial procedure, and the sphere of substantive law such as crimes
and punishments, contracts, partition and inheritance, adoption, gambling, etc.
 5

The authors of the smriti literature were Brahmanas and naturally they represent their
point of view. The Arthasastra was more secular in character and differs from smritis in many
particulars.

The Dharmasastra, true to its nature, lays the greatest emphasis on dharma, while the
Arthasastra on artha. The Arthasastra do place a high value on dharma, but their chief
concern was the treatment of central and local governments, taxation, the employment of
sama and other upayas, with alliances and wars, appointment of officers, punishment and so
forth.

Judiciary system in the Smritis

            The smritikaras like Manu, Brihaspati, Yajnavalkya, Narada and Katyayana have
played a significant role in formulating rules for the governing of social and religious life of
the people which were accepted as authoritative in the administration of justice and the
prescription of duty.

Manu

            It was he who gave the stamp of sanctity and performance to the socio-political
institutions of the land, and has left to the Indian world the first Code of Civil and Criminal
Law.

            The Code of Manu is a metrical law book consisting of 2685 verses. It deals with the
‘Institutes of Sacred Law’ which he explained to the sages of old who desired to acquire a
complete knowledge of the sacred law.

            Manu devotes three chapters (viii-ix) to discuss such topics as king and the state,
their origin and nature, the duties of the king, ministers and other state functionaries; the
judiciary, sources of law, classification of law, punishments, the role of the judges; principles
of taxation, war and diplomacy and the ethical principles of warfare.

            The state was not an end in itself but only a means to an end, a means to enable
people to attain the four purusharthas viz., dharma, artha, kama and moksha, particularly
the first three as the last could be attained only by a few.

The Concept of Dharma

            It is not an easy task to determine the precise meaning of the term Dharma.
Etymologically, dharma means what holds things together. Dharma formed from the word
dhr, to hold, means that which holds things together and maintains it in being. ‘It is, in other
words, the spirit of integration that works all through the entire gamut of life in the
individual, in the community and the world at large. Anything that disrupts or tears up the
integrity of humanity or the integrity of the world is adharma. It is the principle of
disintegration.

            India’s social philosophy may be summed up in the expression “Philosophy of

Integration”. Sir Monier Williams used the term dharma to imply, that which is established,
 6

or firm, steadfast decree, statute, ordinance, law, usage, practice, customary observance or
prescribed conduct, duty, right, justice, virtue, morality and religion.

            There are many kinds of dharma. The dharma which is common to all is called
sanatana dharma or sadharana dharma. Sanatana dharma is regarded as the one which
liberates man from the clutches of lust, wrath and greed.

            Manu mentions 10 characteristics of sanatana dharma, “Fortitude, patience,

restraint, abstention from unrighteously appropriating anything, purity, control over senses,
correct discernment, culture, truthfulness and sweet temper”.

            Though sadharana dharma was applicable to all, yet each class (varna) had its own
dharma becomes evident from varnasharama dharma, a unique system of social obligation.
According to this scheme of varnashrama dharma each varna (class) – Brahmana, Kshatriya,
Vaisya and Sudra – had its own dharma.

            Guna means quality, and the quality, the inclination of the individual to perform a
particular type. Varna was not based on birth, but on function of occupation. Manu, for
example, says that the Sudra becomes a Brahmana and a Brahmana a Sudra by conduct.

Law and Custom

            Customs gained precedence over the smritis because of the changing needs of the
society. The Dharma sastrakaras themselves could not have anticipated such developments.
This explains the statement of the smritikaras that each age must have its own
Dharmasastra.

            Customs and practices varied from region to region and the smritikaras recognised the
diversity of the customs. Manu declares that “jatidharmas (caste rules), Janapada dharmas
(local customs), srenidharmas (guild customs) and kuladharmas (family traditions) were to
be counted.”

            It is important to note that the sacred law and the customary law developed side by
side and together they helped the Hindu Law to take its form. To put it differently, the Hindu
Law is made up of both the sacred law and the customary law.

Human Law and Divine Law

            The law that has its base in the Veda (sruti) is called the divine or the sacred law as
divine authorship is attributed to the sruti. The law that is based on the smriti is called
human law as the authors of the Dharmasastras were human and not divine. To this category
belongs the customary law which evolved out of the changing practises in the society. As
mentioned before dharma or law which has its base in the Veda was the paramount authority
of the Hindu Law; yet it was not the only source. Hindu legal writers consider dharma as
springing from both sruti and smriti.
 7

            With the passage of time customary law and the rational law were held authoritative
in legal disputes. Kautilya and following him Narada declare rational law superior than the
sacred law. This must not be taken to mean that the sacred law went out of vogue; it
continued to be held as authoritative in certain aspects of social and religious disputes.

Administration of Justice in Ancient India:

            Kautilya says, “If danda is not employed it gives rise to the conditions of
matsyanyaya since in the absence of the chastiser the strong devours the weak”. Manu is
equally emphatic. “Danda (penal justice) is the King, it is the lord; it is the protector and
regulator of the state. The wise men regard punishment as the safeguard of social
organisation”.

            Manu says, “dharmorakshati rakshitaha”. The king as the dandadhara is required to
maintain social order by punishing wrongdoers and protecting the righteous. He is permitted
to use danda for keeping the people within the bounds of dharma. He is further required to
award punishment “Only after taking into consideration the entire circumstances – ‘inherited
tendency motives, time, place, financial conditions, etc’. The king was no autocrat in his
administration of justice, dispensing rough and ready justice. ‘King is the arm of the law,
the fountain of equality and the ultimate defender of society through justice’.

            There is no clear reference to the existence of judicial organisation in the Vedic
period. It appears village elders acted as judges and punishment was awarded according to
the nature of the offence, in accordance with local usages or customs. It is very difficult to
say whether they had a conception of differentiation of law as civil and criminal. Law was
both legal and moral. It was in that way half law, half morality. There was very little judicial
organisation or procedure of law. To put it differently, justice as a distinct branch of
government was in the making.

Brihaspati speaks of four kinds of courts-

1)      Pratisthita, court established in a fixed place such as a town, 2) Apratisthita,

circuit court, 3) Mudrita, court presided over by a judge who is authorised to use the
Royal seal and 4) Sasita, court presided over by the king himself.

Narada speaks of various courts with different powers of jurisdiction like Kulani
(Village councils), Sreni (guided courts), Puga or Gana (assemblies). Reference occurs
to such courts as Janapada Sandhi, Sangrahna, Dronamukha and Sthaniya, which
existed in the capital towns of the several administrative districts.  

Types of Courts:

            Kautilya mentions two types of courts, namely Dharmasthiya (civil courts) and
Kantakasodhana (criminal courts). Manu also speaks of these two types, but the
seriousness with which Kautilya deals with the subject is not seen in Manu. We find only a
rather pale reflection of the common tag which summed up the duty of a king as the restraint
 8

of wickedness and protection of the good. 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 courts than the criminal
courts. Manu classifies law under 18 titles without making demarcation between civil and
criminal disputes. These were 1) deposits and pledge, 2) non-payment of debts; 3) sale of
ownership, 4) concerns among partners, 5) resumption (continuation) of gifts, 6) non-
payment of wages, 7) non-performance of agreements, 8) restriction of sale and purchase, 9)
disputes between the owner (of cattle) and his servants, 10) defamation, 11) theft, 12)
robbery, 13) violence,14) adultery, 15) duties of a man and wife, 16) partition of inheritance,
and 17) gambling and 18) betting.

            These topics though are not exhaustive, yet they cover a) the law of property, b) law
of persons and c) law of obligations. These topics are based on the requirement of the society
as reflected in the aims and aspirations of the people.

            The Criminal Law courts, according to Kautilya, took cognizance of the following
cases:

1)      Protection of artisans, merchants, etc., 2) suppression of the undesirables, 3)

detecting criminals by means of spies, 4) arresting the suspicious or real culprits, 5)
post-mortem examinations, 6) discipline in various state departments, 7) punishment
for mutilation, (injury) 8) capital punishment, 9) ravishment of immature girls, 10)
examination by word and action thereon, and 11) miscellaneous offences.
Kantakasodhana was in the nature of the “doctrine of police power”.

For criminals, who were cruel in their offences, Kautilya envisages torture to elicit
confession. Indeed, he devotes a whole chapter to detail this dismal and woeful aspect of
law. A silver line in the whole thing is the safeguards it provides. There was no provision
for the arrest of the persons three days after a crime had been committed. The young, the
aged, the diseased, the intoxicated, the mad, those suffering from hunger, thirst or fatigue
due to journey, those who confessed their guilt, the physically unfit, the pregnant women,
and those who had not passed a month after delivery were generally exempted from
torture. For the rest, torture was only half of the prescribed standard. Only the king could
order the use of torture.

Courts of the Guilds

      Movements for the organisation of guilds started towards the end of the Vedic period.
There were guilds in every important town embracing all traders, industries, arts and
crafts. There was even the guild of thieves.

      The guilds had their own rules and regulations called the Srenidharmas, which were
binding on their members. The Dharmasastras recognised 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.
 9

 The trial

                  The trial of the case began with the submission of the reply, in writing, by the
defendant. It was now left to the judge, who had heard both the plaintiff and defendant to
determine on which of the party lies the responsibility of adducing the burden of proof.

                  Mode of proof is divided into two classes, human and divine (divyam).
Human evidence was of three types, documents (lekhya), possession (bhukti) and
witnesses (saksi). Divine proof consisted of ordeals. Ordeals were resorted to only when
“the ordinary method of proof was not feasible”. In case of difference of opinion among
the parties to the dispute, i.e., one preferring human evidence and the other divine,
Katyayana suggests the king to accept the former. The ordinary procedure in trial was by
evidence, while in extraordinary cases recourse was taken to divine evidence.

                  The trial involved the examination of documents, title, possession and
evidence tendered by the witnesses. The Hindu jurists did not give any scope for
ambiguity in respect of human proof. They have defined what a valid document is, have
classified them and brought out their utmost utility. They were also aware of spurious
(false) documents and have not only severely criticised this practice but have also
prescribed punishment for such offences.

Witnesses

                  Witnesses fall into two groups, appointed and unappointed witnesses.
Appointed witnesses are further divided into five types – a subscribing witness, one who
has been reminded, a casual witness included the co-villagers, a judge, a king, one
acquainted with the affairs of the two parties, one deputed by the claimant and members
of the family particularly in family disputes.

                  Though our lawgivers do not favour a single witness, all seem to agree that the
number is not as important as the overall character and conduct of the witnesses. In other
words, one witness of good character is better than twelve characters. Some jurists say
that a single witness would be more than adequate in serious and heinous offences.

                  According to Yajnavalkya a witness “should be religious, generous, descended

from a respectable family, speakers of truth, eminent in virtue, fair having sons and
wealthy.

                  Manu has laid down elaborate rules in this respect. ‘Householders, men with
male issue and indigenous Kshatriyas, Vaisyas, or Sudras are competent when called by a
suitor to give evidence, not any person whatever (their condition may be) except in cases
of urgency. Trustworthy men of all the (four) varnas may be made witnesses in law suits,
(men) who know (their) whole duty, and are free from covetousness; but let him reject
those (of an) opposite (character). Those must not be made (witnesses) who have an
interest in the suit, nor familiar (friends) companions, and enemies (of the parties), nor
(men) formerly convicted (of perjury), nor (persons) suffering under (severe) illness, nor
 10

(those) tainted (by moral sin). A virtuous witness was preferred to a deceitful man.
Female witnesses were preferred for disputes between women.

                  The legal writers have also given a list of inadmissible witnesses. Manu
declares, “the king cannot be made a witness, nor mechanics and actors, nor a srotriya,
nor a student of the Veda, nor an (ascetic) who had given up all connection (with the
world), nor one wholly dependent, nor one of bad fame, nor a dasyu, nor one who
follows forbidden occupations, nor an aged (man), nor an infant, nor one (man alone), nor
a man of the lowest castes, nor one deficient in organs of sense, nor one extremely
grieved, nor one intoxicated, nor a bad man, nor one tormented by hunger or thirst, nor
one oppressed by fatigue, nor one tormented by desire, nor a wrathful, nor a thief”. To
this Kautilya adds “a wife’s brother, a dependent, a creditor, a debtor, an enemy, a
cripple, a convicted person, a village servant, a leper and wounded man, an outcaste, a
candela, a blind, deaf, dumb, or self-invited person, a women and a king’s officer shall
not be cited as witnesses”.

                  According to Katyayana, “the Sudras could only appear as witnesses for the
Sudras and that a litigant of lower caste should not establish his case by evidence of
witnesses of higher caste”.

                  To mark the seriousness of the occasion and to make the witness understand
his responsibility before his deposition, Kautilya wants him to put off his turban, raise his
right hand and after touching gold, cow-dung or durbha grass and then to depose the
truth. These statements of the legal writers and the writers on statecraft show how these
thinkers were zealous in maintaining the sanctity and spirit of the administration of
justice.

                  Cases were decided by eyewitness, inference and analogy. One curious feature
of the administration of justice in ancient India was to get at the facts of the case by
means of official secret agents appointed for the purpose. In the absence of the witnesses,
the special police officers found out the innocence or guilt of a person without trial. There
is no provision in ancient legal literature for the cross-examination of witnesses.

Pleaders

                  A party to the dispute, if he was unable to attend personally owing to “his
other pre-occupations or ignorance of law” could appoint recognised agents in the law
courts to defend his case. Such agents were known as Niyogins and they were expected to
protect the interests of the parties they represented. They were punished by the state in
case they colluded with the other party. It is, however, true that a class of experts in law
were there to help those who desired to represent them.

Secret Agents:

                  The elaborate intelligence system of the Arthasastra, which is indeed one of its
distinguishing features, is fundamental to the foreign and domestic policy of Kautilya. He
visualises a country riddled from top to bottom with spies.
 11

                  Spies or secret agents were employed to detect criminals whether in the
service of the state or among the people. The spies also detected the false witnesses.
Similarly, the manufacturers of counterfeit coins, those who were engaged in witchcraft,
suspected of administering poison and those who mixed alloy with gold and lowered its
quality were treated. The Arthasastra says, “There are 13 kinds of criminals who, secretly,
attempting to live by foul means, destroy the peace of the country. They shall be either
banished or made to pay an adequate compensation according to their guilt is light or
serious. It served as a machinery to guard the interest of law and order and the interests of
the people concerned.

Concluding stage of the judicial procedure:

                  The concluding stage of the judicial procedure was the verdict or nirnaya.
Now the king or the chief judge had to weigh carefully the evidence produced before the
court and after seeking the interpretation of law by those versed in law had to decide on
the success or the defeat of the plaintiff.

                  The document of victory, called jayapatra, was given to the party that won the
suit. A jayapatra was to contain the summary of the plaint, the reply, the evidence and
decision. It was to bear the royal seal, and was signed by Pradvivaka and other members
of the tribunal. The jayapatra was to be preserved safely so that, whether necessary, it
would be produced or referred to.

Punishments:

                  The smritikaras have discussed at length the classification of crimes and the
punishments to be given. Manu prescribes admonition (warning), reproof, a fine, corporal
punishment and banishment. Brahmanas were exempted from capital punishment, but in
extreme cases, banishment was recommended. Varna considerations dominate in Manu in
prescribing punishments, for instance, if a Sudra even mentions the names and castes of
the twice-born with contumely, “an iron rail, ten fingers long, shall be thrust red-hot into
his mouth”. If he is arrogant enough to teach Brahmanas their duties,” the king shall
cause hot oil to be poured into his mouth and into his ears”. In case of assaults, “with
whatever limb a man of the lower caste injures a man of three higher castes, even that
limb shall be cut off”. If a Brahmana killed a Sudra, it amounted to killing a frog or a dog,
a sin of which he could get rid of by mere penance or self-punishment.

                  Kautilya is in general agreement with Manu except in two respects. He brings
in Brahmana within the scope of capital punishment by providing him the death penalty
by drowning if he is guilty of high treason. He is less severe on the lower castes.

                  A severe type of imprisonment prescribed by Kautilya is forced labour in state
mines, state farms and such other concerns of the state. If a person who is injured because
of quarrel within seven days of the occurrence, it was treated as murder and death penalty
was inflicted. For spreading false rumours, housebreaking and stealing war animals of the
king (elephants and horses) hanging was the penalty.
 12

                  One who murdered the father, mother, son, brother or an ascetic was burnt
alive. “Any women who murders her husband, preceptor, or offspring, sets fire to
another’s property, poisons a man or cuts of any of the bodily joints of another shall be
torn off by bulls, no matter whether or not she is big with a child, or has not passed a
month after giving birth to a child”.  

                  The criminal code in the Arthasastra is rather severe and it has been
characterised as “an eye for an eye and a tooth for a tooth”. A person who insulted his
father, mother, son, brother, teacher or an ascetic had his tongue cut off.

                  Judicial torture was used to extort confessions. Kautilya speaks of “four kinds
of torture (Karma); six punishments (shatdandah), seven kinds of whipping (kasa), two
kinds of suspension from above (upari nibandhan), and water tube (udakanalika cha)”.
The principle laid down was “that those who were truly believed to be guilty shall be
subjected to torture”.

                  In the civil cases, the Hindu Law as embodied in the sastras was
administered. Manu has also dealt elaborately with civil law and has certain interesting
observations to make on debt, property, agreements, inheritance etc.

The Role of the Judges

            “If law under Kautilya was harsh in the case of the law-breakers, it was
equally uncompromising in the case of those who administered it.” The legal texts set a
very high standard for judges. They were to be learned, religious, devoid of anger, and as
impartial as humanly possible. The Arthasastra says that “Judges shall thus settle disputes
free from all kinds of circumvention, with mind unchanged in all moods or
circumstances, pleasing and affable to all”. Kautilya discusses at length the conduct of the
judges and prescribes punishment for dereliction (failure) of duty.

                  If a judge imposed an unjust corporal punishment, he was either condemned to
the same punishment or made to pay twice the amount of ransom leviable for that kind of
injustice. If a judge falsified whatever was a true amount or declared as true whatever
amount was false he was fined eight times of that amount.

                  An ideal judge was to possess independence of character, great leaning in
various branches of law and impartiality. He must be sagacious, eloquent, and
dispassionate. He was to pronounce judgement only after due deliberation and enquiry.
He was to be the guardian of the weak, a terror to the wicked: his heart was to covet
nothing, his mind was to be intent on nothing but equality and truth and he was to keep
also from the anger of the king (Mricchakatika).

Reference: History of India, Part-I, H.V.Shrinivasa Murthy, National Law School of

India University, Bar Council of India Trust, Eastern Book Company. (Chapter VII &
VIII)  
13