UNIT:11- Judicial System

The jurists like, Manu, Yajnavalkya, Katyayana, Brihaspati and others, described in
detail the judicial system and legal procedure which prevailed in India from ancient times till the
close of the Middle Ages.

Artha-Shastra and Manu-Smriti are considered as significant treatises as far as the legal
system is concerned. In ancient Indian societies, an independent school of legal practices existed.
Some general principles in connection with the judicial proceedings state that in case of
disagreement between two texts of Smriti, justice according to usage is to be followed. In case of
conflict between a text of Smriti associated with the dharma and one relating to artha, the former
prevails. The former one sets rules regarding things unnoticed or other-worldly, while the latter
one is more concerned with everyday matters.

TRIAL:

According to Manusmriti, a cause of action arises when a person, being harassed in a way
contrary to the rules of Smriti and usage, lodges a complaint. The judicial proceedings usually
comprise four parts, namely complaint, reply, evidence and judgment. Replies can probably be
of four kinds, and these are admission, denial, a special plea, relating to a former judgment.
Three types of evidences are mentioned namely (i) document, (ii) possession and (iii) witness.

As regards the rules for summoning, it is evident that the opponent or the defendant,
against whom the suit is filed, must be summoned to the Court. Even other persons connected
with the defendant (in the suit) may also be summoned. When, however, some persons like
soldiers, Agriculturists, cowherds etc. are fully occupied with their work, their representative
may be allowed to appear before the Court, as held by the Narada Smriti. In serious matters,
however, the persons are allowed to appear in person before the Court, particularly with proper
safeguards. In more serious matters like murder of Woman, Adultery with her, as held by the
Mitakashara on the Yajanvalkya Smriti no representative is allowed. But in such matters, the
concerned must appear before the Court. It should be noted that the presence of some persons
like the deceased, very old (more than Seventy years old), persons in calamities, engaged in
religious rites, in king’s duties, a woman whose family is in bad condition, is actually condoned.
If, however after serving the summons defendant fails to come before the Court the King should
wait for 30 days or 15 days and pass the Judgment in favour of the plaintiff. But if there is an
invasion by enemy or famine, or epidemic, than the King should not fine the defendant who is
thus prevented from coming to the Court. However agents can be allowed to represent on behalf
of his disabled Master.

In villages, the local village councils or Kulani, similar to modern panchayat, consisted of a
board of five or more members to dispense justice to villagers. It was concerned with all matters
relating to endowments, irrigations, cultivable land, punishment of crime, etc. village councils
dealt with simple civil and criminal cases. At higher level in towns and districts the Courts were
presided over by the government officer under the authority of King to administer the justice.
The link between the village assembly in the local and the official administration was the head
man of the village. In each village, local head man was holding hereditary office and was
required to maintain order and administer justice, he was also a member of village council he
acted both as the leader of the village and mediator with the government.

In order to deal with the disputes amongst member of various guilder or association of trader or
artisans,(sreni), various corporations, trade bills, guilds were authorized to exercise an effective
jurisdiction over their member. These tribunals consisting of a president and three or five co-
adjustors were allowed to decide their civil cases regularly just like other Courts. No doubt, it
was possible go in appeal from the tribunal of the guild to local Court, then to Royal judges and
from this finally to the King but such situation rarely arises. Due to the prevailing institution of
joint Family system Family Courts were also established, ‘puga’ assemblies made up of groups
of families in the same village decide civil disputes amongst the family members.

Criminal Trials:

In criminal trials it appears that the question of innocence or guilt of the accuse was decided by
the judge or the jurors, but the quantum of punishment was left to the King. In the trial scene in
Mrichchhakatika (The Little Clay Court), the judge after pronouncing Charudatta guilty of the
murder of Vasantasena, referred the question of punishment to the King with the remark, "The
decision with regard to Charudatta’s guilt or innocence lies with us and our decision is binding
(Pramanam), but the rest lies with the King.”

Representation by Lawyer:

The views of Narada, Katyayana and Brihaspati show that the skilled help was required in the
litigations. The commentary of Asahaya on the Narada-Smrti indicates that those who are well-
versed in the Smriti literature could afford help for monetary consideration to the parties that
have appeared before Court. Fees of such skilled persons were also fixed and he was appointed
by parties not by Court. However, P. V. Kane in his work ‘History of Dharmashashtra’ (Vol.III,
Chapter XI, p.288-289), mentioned that absence of lawyers as significant feature of ancient
Indian legal system.

WITNESS:

In ancient India to hearsay was not allowed, but a witness in a foreign country can give his
evidence in writing before a learned man in the three Vedas and the writing sent by him may be
read in the Court. As regards the number of witnesses, it is said that this number may be
multiple. But a single witness is not accepted as the facts cannot be collaborated. But Narada
Smriti states that a single witness may be accepted, if it is approved by both the parties.
Kautilya states that a single witness can be accepted, if the very transaction has taken in secret.

Qualifications for witness:

He should be a man of good character, trustworthy, knows Dharma and acts up to it. Witness
from the same caste is to be prepared, and in cases relating to women a woman can be witness.
As regards the nature of incompetent witnesses, it may be said that the persons having no faith in
the Dharma, the persons who are very old persons, minors, oil presser, intoxicated person,
lunatic, distressed, inattentive, undertaking long journeys, gambler etc. Narada-Smriti further
gives us five-fold classification of incompetent witnesses,

1. the learned Brahamanas, and ascetics practising austerities.

 2. Thieves, robbers, gamblers

3. witnesses are to be rejected on the ground of contradiction in their evidence

4. one who comes of his own accord for leading an evidence is also treated as incompetent,

5. When a person dies, he names some persons as witnesses for the transaction, they can
come as witnesses and the person who is informed by the parties in a general way and not
in a specific way is not to be admitted as a witness.

Ordinarily the witnesses are to be examined in the presence of the parties and never behind their
back. Further, a witness should be examined by his tone, change of colour, eyes gestures etc.

The judge should address a Brahmana witness by ‘speak and swear by veracity’. He
should address the Kshatriya witness as speak the truth and he should swear by the animal he
rides and his weapon. A Vaisya should swear by gold, and grain and a Sudra should swear by all
grave sins.

The view of majority witnesses shall be prepared, in case where there is no majority
opinion is possible, and then the quality of statement made by the witnesses is to be taken into
consideration. The claim is not said to be established when witnesses depose more or less than
that mentioned in the statement or pliant of plaintiff and the disposition has not taken place at all
and in such a case no fine is to be imposed. When there is conflict among the witnesses as
regards time, place, property, amount, then the dispositions are as good as not taken place.
Generally no ordeals are to be resorted to when the witnesses are available. The oaths are to be
employed in the disputes of small value and the ordeals are to be resorted to in serious disputes
of crimes.

Punishment for false witnesses:

a. where a witness denies deposing in the Court matter, after giving promise to that effect
along with other witnesses,
 b. if for unfavourable circumstances, a witness denies to depose,

c. if a witness gives false evidence frequently,

In all these cases witness shall be punished with fine and in last case physical punishment can
also be imposed on such witness.

SECRET AGENTS:

The success of Chandragupta Maurya’s elaborate administration was to some extent based on
intelligence. This department was placed under an amatya called “Mahamatyapasarpa”.
Detectives are called “enigmatic men” in Arthashastra. Those persons were appointed in this
department, whose purity and integrity of character were tested in every respect. The network of
spies was spread throughout the empire. They used to travel in various guises and inform the
emperor about the day-to-day affairs. They supervised the activities of all types of officers. The
Arthashastra states that- “Spies should be appointed to keep an eye on the activities of all kinds
of kings and to keep an eye on the eighteen pilgrimages of enemies, friends, medium and
indifferent”.

Arthashastra mentions two types of spies institution: i.e., living in one place and
communication; those who travel everywhere. Apart from men, clever women also used to spy.
Arthashastra shows that prostitutes were also appointed to the posts of spies. If a spy gave false
information, he was punished and removed from office.

PUNISHMENT:

Kautilya mentions three types of punishments:

1. Prior courage punishment- It ranged from 48 to 96 panas.

2. Medium courage punishment- It ranged from 200 to 500 panas.

3. Uttam Sahas Danda– It ranged from 500 to 1000 panas.

Apart from this, the punishment of imprisonment, whipping, mutilation and death penalty was
given. Death penalty was given for organ-mutilation of artisans. Similar punishment was also
given to those who evaded taxes and scammers of state money. The Arthashastra shows that
officers named Yukta often used to siphoned off the money. It is mentioned at one place that –
“Just as no one can see the fish moving in the water while drinking water, similarly no one can
know the yuktas appointed to the economic post by kidnapping money”. The Brahmin rebels
were put to death by immersing them in water. In the crime in which no proof was found, divine
tests were taken by water, fire and poison etc. Megasthenes description shows that crimes were
not often committed due to the harshness of punishments.

Arthashastra shows that the amatya who is “dharmopadhashuddha” (pure by religious

temptations). Those with character were perfect, they were made judges. The judges had to
decide the punishment only after studying religion, behavior, character, and governance.

Punishment was also made for the employees of the courts. Judges and court employees were
punished for making false statements, imprisoning an innocent person, acquitting the offender.

Punishment for corruption:

Corruption was regarded as a heinous offence and all the authorities are unanimous in
prescribing the severest punishment on a dishonest judge. Brihaspati says: “A judge should be
banished from the realm if he takes bribes and thereby perpetrates injustice and betrays the
confidence reposed in him by a trusting public”. A corrupt judge, a false witness, and the
murderer of a Brahmin are in the same class of criminals. According to Vishnu Smriti “The state
should confiscate the entire property of a judge who is corrupt”.Judicial misconduct included
conversing with litigants in private during the pendency of a trial. Brihaspati says: "A judge or
chief justice (Praadvivaka) who privately converses with a party before the case has been
decided (anirnit), is to be punished like a corrupt judge."

Conclusion
The Constitution of India has sought to create a more equal and just rule of law between
individuals and groups than what existed under traditional authorities in ancient India. The
Indian Constitution strives to eliminate the humiliation that people suffered under the traditional
social system of caste and patriarchy, thus creating new ground for realization of human dignity.
The realization of both formal and substantive equality that is happening under the rule of law in
contemporary Indian society can facilitate a more creative flourishing of a life of dharma or
righteous conduct in self and society.

However, in spite of the provisions in the constitution for equality in justice, we can find that
ancient Indian manuscripts reminiscences in the village justice system playing a major role in the
dispensation of justice. Holden (2003) in her research on some villages in India, have found out
that most of the village justice system is based on caste and found out that many of the principles
grounding the traditional panchayat’s decisions have an evident source in the ancient Hindu
tradition.