Constitution of the Court of Justice

8/2/2019 Constitution of the Court of Justice

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1CONSTITUTION OF THE COURT OF JUSTICE

(Manusmrti Bk. 8-1 to 26)

At the very outset of this essay it has to be brought to the attention of the reader that unless we

free ourselves from the stereotypes that we have been inured to during the last two centuries itwill not be possible for us to arrive at an objective appreciation and assessment of thesociopolitical constitution incorporated in the Manusmrti.

It is necessary to keep in mind that this constitution came into force more than five millenniaback and had survived the vagaries of time and the shocks of submission to conquerors from

abroad and deviations from the prescribed norms by rulers and their mentors. As we examine

every one of the clauses of the extant code we would dwell on the charges levelled against it.

The main charge and loud complaint voiced against this has beenthat it is unjust. Is this chargeand complaint really valid?

The ruler of the agro-pastoral plains,parthiva, was expected to follow the provisions of theconstitution that Prthu adopted.[He is not referred to as a rajan, a dynamic chieftain who

belonged to the cadre of aristocrats.]

The Prthu constitution did not stipulate that the ruler should be aKshatriya warrior by

vocation or aRajanya by birth. He could be but a commoner and an agriculturist chieftain,

akshiti-Isvara. He was also known as the chief of the agro-pastoral commonalty, asprthvipati.

During the later Vedic period the agro-pastoral core society had two major strata, the richgoverning elite, thedevas, nobles who were a leisure class and who formed an enlightened

cultural aristocracy and the commonalty,manushyas,prthvi orbhumi, who were engaged inagriculture, pasture and trade.

The Prthu constitution marked a radical departure from the Atharvan polity that witnessed

the dynamicRajanyas, who were closer to the nobles,devas, and the feudal lords,asuras,

electing a king,Rajan, from among themselves.

It superseded the Atharvan constitution, which was given a definite form by Mahadeva, the

VratyaPrajapati, and which was accepted as a consensus solution by most of the regions ofthe Indian subcontinent during the century preceding the tenure of the seventh Manu,

Vaivasvata. It had the approval of Manu Vaivasvata and Kashyapa, the chief of his council of

seven sages.

The followers of Bhrgu, the chief editor of Manusmrti, had led a revolt against Vena, theautocratic ruler of Anga, a province to the southwest of Mathura, and installed Prthu, a

charismatic agriculturist chieftain as the king.

The new ruler was elected by all the commoners (who were taxpayers) directly and he was

required to get approval for all his policies and projects from the paura-janapadaassemblies that


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represented the rich families of the city and the rural landlords. The nobles (devas) were not

under his jurisdiction and he had to get their approval for all his new projects. They had effectivecontrol over the contributions to the state treasury and even over the army.

But the civil administration and the courts of justice were under the new civilian ruler who

was assisted by the bureaucracy operated by the talented officials, known asamatyas, bythe secretaries of state,sachivas, and by the ministers,mantris. He could not act by himself.

The Prthu constitution got freed from the main weakness of the thenRajarshi constitution that

stood for the election of a highly educated but sober intellectual as the head of the state. The

Rajarshitook all decisions and gave directions personally to all his subordinates including thejudges. Vena misused this weakness in theRajarshi constitution and became a greedy autocrat.

TheParthiva was guided byBrahmans, scholars who had mastered the socio-politicalconstitution,Atharvaveda orBrahma. They were jurists while the ministers were but political

counsellors. It is wrong to presume that in ancient India the king was subordinate to the

ecclesiastical order or that he and his political executive had to meet its expectations. TheseBrahmans were not ordinary priests or teachers by profession.(8-1)

Buhler translates the verse as: A king desirous of investigating law cases must enter his court ofjustice, preserving a dignified demeanour, together withBrahmanas and with experienced

councillors. Jones translated it as: A king desirous of inspecting judicial proceedings must enterhis court of justice, composed and sedate in his demeanour, together withBrahmansandcounsellors, who know how to give him advice.

Jha, following Medhatithi, read it as Desirous of investigating cases (vyavahara), the king

shall enter the court (sabha) with a dignified demeanour (vineeta) along withBrahmanas

and councillors (mantris) versed in counsel (mantram).

It may be noted here that administration and protection,palanam, of the subjects, the citizens,

prajas, is the vocation,pravrtti, assigned to the king. TheKshatriyasearned their livelihood by

carrying arms, the Vis (Vaisyas) by trade (vanika), by tending cattle (pasu) and by agriculture(krshi) and the Shudras by attending on the twice-born communities (dvijatis). [Manusmrti (10-

79)]

Thenrpa, the civil administrator of the interior who belonged to the stratum of free men, naras,

has to be distinguished from theraja who belonged to the higher cadre of dynamic and powerful

chieftains and theKshatriya who was a professional soldier. Thenrpa who follows and

implements the above vocational divisions reaches the unexcelled social world (loka

) (ofnobles). Therebydharma flourishes in the social world (of commoners). Other classes (varnas)

who earn a livelihood by following theKshatriya vocation are entitled to kingship (rajya-adhikara).

In the new dispensation not only ordainedKshatriyas who bear arms but also members of

other classes are declared to be eligible for the position of a king provided they give up

their other vocations and become soldiers.Only soldiers can rise to become kings. But it was


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not necessary that these soldiers should have been born to soldiers. One cannot be an

agriculturist and also a soldier.

The Smrti holds thenrpa as one who administers and protects all the social worlds (sarvaloka) (that is, the agro-pastoral commonalty, the leisure class of nobles and the industrial frontier

society). His duty (karmanishta) as ordained is to look after the welfare of the commonpeople (sadharanaloka). The commentators do not attach much importance to the needs of the

elite or to those of special vocational groups. Common weal of the common people is what the

nrpa is expected to attend to.

Administration,paripalanam, is essentially removal of sufferings of the people. These sufferingsare of two types, manifest and non-manifest. When the mighty harass the weak and rob them of

their wealth it is manifest trouble. It is non-manifest suffering when the mighty suffer in the

other (itara) social world through the sin accruing from his transgressing the law (vidhi). It may

be noted that the mighty if guilty were exiled to areas under the jurisdiction of the other society(itarajana), to forests and mountains, to suffer there. Commoners (manushyas) of the core

society of the plains were not able to see the sufferings of these exiles.

The subjects,prajas, often act towards one another in hatred and jealousy and hence go by the

wrong path and become subject to unnoticed defects (dosham) (in conduct). As a result the state

(rajyam) is ruined (nasa). Only sovereignty,aisvaryam, emanating from the wealth of the

people (prajas) is defined asrajyam. In other words, it is wrong to definerajyam as what is

owned by the sovereign,raja.

When the wealth of the people gets destroyed where would be the state, rajyam? [Rajyam is

basically an economic entity. It can be described as economic state. ] Protection of

sovereignty of the state requires that importance is given to settlement of economic disputes. The

nrpa, civil administrator, is hence an important official.

When economic disputes (vyavahara) are investigated and settled in accordance with the codes(sastra) and their coercive power (danda) through fear the litigants do not deviate from their

respective path. Hence they become protected from both types of trouble, the manifest

oppression and deprivation of the weak by the mighty and the non-manifest suffering of themighty as exiles in the midst of the frontier society. The kings wealth is from taxes and fines.

He does not have any other lawful (dharmashta) means of livelihood.

He cannot pursue any vocation other than administration of the state nor have any personal

property, which would yield him other incomes. Any obstacles to this would hence lead the state

into trouble. It follows that for preserving the state he has to perform his duty (kartavyam) of

overseeing the settlement of economic disputes in accordance with the procedure laid in thescience of economic laws, vyavaharadarsanam.

The term, vyavahara is annotated as: It is the name given to that action of the plaintiff and thedefendant which they have recourse to for the purpose of reclaiming their rights. Or it may stand

for the non-payment of debts and such other matters themselves, which often become the


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subjects of dispute and as such fit for investigation, which thus becomes the duty (kartavyam) of

the ruler.

Here, the commentator uses the expression, gocharasamartha to indicate the ruler. It indicated

one who was competent to look after the movements and activities of the people of the village

(go).

Thenrpati was essentially a free man who was also a stoic with no personal interests andwas perhaps a cowherd rather than an agriculturist or trader when he was invited to take

over the assignment as a civil administrator.

Most disputes were settled in the villages themselves and only a few were referred to higher

authorities. Theparthiva was not aKshatriya ruler. He was a landlordas the medieval

commentators recognized.He was not a scholar and had to depend onBrahmanscholars whowere jurists appointed by the council of scholars,samiti,and on the ministers, who were

appointed by the house of nobles,sabha.

Neither the king (rajan) at the centre nor theparthiva who was the administrator of therural areas was empowered to appoint the jurists and the ministers. Theparthiva, though not

highly educated, is modest in his bearing. He is not visualized as one desirous of giving adecision; he is only desirous of investigating the dispute as it has a bearing on the political

economy of his state. The jurists,Brahmans, and ministers,mantris, who accompany him, arethe persons competent to arrive at a solution and recommend the solution that would bepronounced as royal edict,rajaajnya.

The next verse (8-2) is read by Jha as: There, either seated or standing, raising his right hand,subdued in dress and ornaments, he shall look into the suits of the suitors. Jones translated that

he would examine the business of the litigant parties. Buhler uses the expression, business of thesuitors.

This was not necessarily an appellate court. It was basically a court to which special cases were

referred to as the lower ones managed by thenrpati, a pious stoic, could not solve for want ofopinions of the expert jurists and counsellors.

The commentator says: This teaching regarding the king himself looking into the suits is withspecial reference to the inflicting of punishments (danda). The manual that described the

procedure to be followed by the state while investigating a civil dispute was guided by the

principles ofdandaniti, political science. To be precise, dandaniti dealt with the principles and

policies to be followed while exercising coercive power over others.

Thenrpati could impose fines on the delinquents but could not imprison them. He could not

take any stand on the conflicts in practices prevalent among different clans and communities.

But theparthiva had to look into these aspects in order to maintain peace in his territory.The entire investigation had to follow the procedure prescribed asrajadarsana.


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The implication is that by doing so, his act would be linked to his right and duty to protect

(rakshaadhikara) (the people). As this duty and power had not been given to any one else inthis code, the 'parthiva could not appoint deputies or delegate this power to others. If he does not

hear, it will not be heard at all.

Theparthiva is seen to be presiding over a special but open political court in his chamber.As for helping in the settling of doubtful points, the result of this investigation interests all

persons (not the litigants only). As such like the rules of expiation, this also falls within theprovince of the learnedBrahmans, thejurists.

One who repented was required to perform expiatory rites to be accepted back into the

family or clan or community. These rites were not prescribed by the state. They were

regulated by the social constitution that bound all individuals and all ranks of the society

equally.

TheBrahmans could only read them out for observance and only they could point them out, as

they were conversant with the language and terms used. Similarly, they could help in settlingdoubts, which though economic in nature had social and political implications.

On dilemmas that pertain to what is in accordance with or is in conflict with social

constitution,dharma, ondharmasankata, let him (theBrahman) proclaim. It may be noted

here that the rural administrator (parthiva), the civil administrator (nrpati), the king (raja), theminister (mantri), the secretary (sachiva)and the bureaucrat (amatya),all belonged to thepolitical system and were not entitled(as they were not able)to solve the dilemmas pertaining to

social laws.

If the social laws of different classes or communities or clans were in conflict with one

another, only theBrahman jurist could declare what was correct or more reasonable thanothers.But even he could not dictate on disputes over practices within the same clan or

community or vocational group.

It needs to be pointed out here that theBrahman could not either as a teacher or as a priest or as ajurist interfere with the practices of any clan or community or pronounce on their validity. The

clans and communities were autonomous social groups and had their own bodies to settle

internal disputes.

However when a case is being investigated where the parties belong to the same profession, if

some other persons belonging to that profession find that the points in dispute are such as would

affect them all, then they are all entitled to take part in the investigation.

In the rural hinterland, the decisions given on economic disputes(vyavahara) on the basis of the

rules of the clan (kula) were considered liable to be set aside by those of the economiccorporation (sreni); and these by those of the oligarchy (gana) of the heads ofkulas andsrenis.

The latter could however be set aside by the authorized person (adhikrta) and his verdict by the

civil administrator,nrpati. In other words, theseganas had to recognize the authority of the


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state, which was represented by the arbitrator appointed by it or by the nrpati who was not a

member of any organized clan.

This stand of Naradasmrti is posterior to the practice prescribed by Manusmrti. Despite the

passage of several centuries and imposition of Islamic and British laws by the later rulers this

socio-economic hierarchy with respect to settlement of disputes has survived to this day.

The expression,kulani, means a community of persons born as brethren(bandhujanasamuha). [It does not permit admission of persons not born as such. Adopted sons

and appointed sons who are not born members of the clan do not have a voice in the matter being

discussed by this community. The daughters who had been given away in marriage and theirspouses too have no voice in it. But all generations of that clan are entitled to speak out.] The

parties shall abide by the verdicts given by the clan. [Most disputes would have been settled

at this level. It is foolish not to give the clan the importance due to it.]

If however one of the litigants expresses lack of faith in the clan-court, then the case shall

be referred to the corporation,sreni. We prefer to use the term guild forsamgha where all themembers had equal status. Thesreni had internal ranking based on the contribution made by the

members. It was a body of traders and promoters who earned their livelihood from equivalent

economic ventures (samanavyavahara).

They were more influential than the brethren (bandhus) for the latter were afraid of the brothersand kinsmen of their wives (jnatis) and did not exercise a check on the person who deviatedfrom the right path (dharma).

The members of the corporation fought shy of any matter going before the king (raja), as thatwould lend the kings officers (rajapurushas) an opportunity to interfere in the work of the

corporation (srenidharma). Hence they always took sufficient security from the partiesconcerned against their deviating from the decision arrived at.

The council (parishad) of the corporation could impose fine (danda) on the delinquent. The

ganas were vocational groups, which moved about as organized groups. They investigated thecases of disputes among themselves and for enforcing the decisions they appointed committees.

In the case of members of thesreni, they could act singly also, but in the case of thegana they

acted collectively. [It is not advisable to translate the term,gana, as tribe.]

The sreni might appoint a member of the same clan as an arbitrator. Even others conversant with

the basis of the case could be appointed as such. Theadhikrta who was empowered to give his

verdict was a scholar and jurist,Brahmana, who was learned in the three disciplines ofstudy (traividya), the three Vedas, Varta andDandaniti, humanities, economics and politicalpolicy. [The presumption that theBrahmana was eligible to speak only on matters pertaining to

theology is unsound.]

It had been laid down that such authorized person was entitled to pronounce verdict on dilemmas

pertaining to social and other laws,dharmasankata. Such a person could overrule the decisionsof the clans, thesrenis and theganas, because of his learning. The superiority of thenrpa, the


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civil administrator who headed the free men at the disposal of the state as volunteers not bound

by any clan or corporation or organized group, rested on his great power (sakti).

When a case has been decided by anrpa who is himself learned, there is no occasion for what is

said in the words: If a party, even though (legally) defeated, thinks that he has not been justly

(nyayena) defeated, he shall be fined twice the amount of the suit and the case reopened. Thisstand of Yajnavalkya did not accept that the decision of the ruler was final.

Only if thenrpa was learned in the three disciplines and had mastered the methods laid down in

nyayasastra and followed them, he could be empowered to function as the supreme arbitrator in

civil disputes.It was not enough for a ruler to be pious or to be strong or both. He had to belearned also but very few were so. Similarly the cases decided by other arbitrators too could be

reopened. NoRajan (king) had the final say and noBrahman (judge) either.

Of course, it is easy to complain that judges have not decided rightly. But when the king (raja)

who is superior to the civil administrator (nrpati) himself decides unjustly to whom one should

appeal against his verdict?

Another interpretation is that the person authorized (adhikrta) by the civil administrator

(nrpa) is to be treated as theBrahmana who is in the place of the king (raja). This jurist,Brahmana was entitled to represent the head of the state. The head of a household may benominated to settle all disputes among its members.

He may deal with all cases except those acts that were conducive to depravity. He might not

inflict corporal punishment though he had disciplinary powers. In the case of minor offences he

acts like the king but he must report the serious offences to the latter. The rights of the severalpersons pertain to different types of cases.

The king could inflict punishments (danda) including corporal punishment. TheBrahmanajurist could only pronounce judgments. The motive of the king in looking into cases consists

in the proper administration of the state while that of others lies only in settling doubts for the

benefit of others so that there is no case of cross-purposes arising.

It is implied that the king may go in for political expediency while the jurists and others

may have public interest as the main determinant. The king(raja) should settle the disputesthrough careful investigation. [Otherwise if the parties come to an agreement by themselves,

where would be the supremacy of the king?]

The next verse (8-3) has been translated by Buhler as: Daily (decide) one after another (all cases)which fall under the eighteen titles (of law) according to principles drawn from local usages and

from the institutes of the sacred law. Jones translated it as: Each day let him decide causes, one

after another, under the eighteen principal titles of law, by arguments and rules drawn from localusages and from written codes.

Jha reads it as: He shall look into the suits, day after day, one by one, falling as they do under

eighteen heads, according to principles deduced from local usage and from the scriptures


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(sastra). The eighteen heads are enumerated in the ensuing verses. Jha has provided a translation

of Medhatithis exhaustive comments on this verse. Since most of the rules pertaining to trial ofcases were developed at different times in the history of ancient and medieval India, it would be

incorrect to presume all of them were available or were in vogue when the Manava Dharmasastra

was first drafted.

Most of the disputes were settled within the family or the clan or in the village itself with the

litigants being forced to tell the truth whether there were witnesses or not. But when the matterswere referred to the king especially of a large state the procedure for hearing them had to be

regulated. First and foremost, the practices in vogue in any particular region,desa, were to be

honoured and not meddled with if the king did not want to have a revolt on his hand.

In issues that did not involve local usage the judiciary had to follow the codes, sastras.While many insist that it is a reference toDharmasastra, toManusmrti in particular, it needs to

be recognized that the importance ofArthasastra is not to be overlooked.

Arthasastra dealt with the intricacies of economy in depth and refused to handle issuespertaining to ethics and morality.Dharmasastra too took economic issues into accountthough it refused to give primacy to economy,artha.

However in settling economic disputes,Dharmasastra was interested in maintainingstatusante.

It was not interested in the issue whether the offence was caused by the injustice inherent in thepast system or not; and whether the disturbance to that past was intended to create a more justand a better social order or not.Dharmasastra were convinced that they were right in calling for

a restoration of thestatusanteAdvocates of and return to the immediate past.

Thesastras, codes, try to protect those practices that have been found beneficial and acceptable

to most of the people; and to prohibit what have been found to be harmful. Those who honouredthe local practices did not wait to inquire into these factors. But the presence of the particular

usage had to be ascertained and the meaning of the injunctions specified in the sastrasunderstood correctly. Theparthiva who was essentially an agriculturist was not able to do so

without the help of the jurists and ministers.

TheAtharvan ruler was aRajanya, a dynamic chieftain who belonged to a social stratum that

was on par with the liberal aristocracy. But he was not learned and was not a sovereign. He could

not hence be a judge. In theAtharvan polity, the local community with the help of its council

of scholars, headed by the official designated asAgni decided all issues pertaining to moral,civic and social laws whilesabha, the house of nobles headed byIndra decided on those

pertaining to economy and political and constitutional issues.

TheRajanyas too had to accept and abide by these decisions and the officers designated as

Yama, VarunaandMitra executed these. There was no separate judiciary in the Vedic state.

The two bodies, Sabha and Samiti functioned as two houses of the legislature. But with the

passage to the plebeian social polity of theManavaDharmasastra, the house of noblesdropped back and so too the council of scholars. The eight-member ministry headed by

Indra came to the fore.


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Meanwhile in the larger Vedic state, the house of nobles had only thirty-three members including

the Viraj (the head of the circle of five kings),Prajapati (the chief of the peoples) andMahendra (the chief of the committee ofIndras who controlled finance and treasury) and a

small seven-member council of seven sages. But it had a huge council with one thousandmembers who were trained visionaries,chakshus (spies, as wrongly construed). This system too

lacked a separate judiciary. It allowed the Prajapati to play the role of the chief judicial officer

with the aid of the eight-member ministry.

Manava Dharmasastra was the recipient of this legacy of a strong state aided by a powerful

and rich aristocracy and guided by a large intelligentsia.Its executive itself functioned asthe judiciary and when the executive was weak the king became an autocrat who

functioned also as the judge without caring for precedents, practices and codes. Bhrgu, the

chief editor of Manusmrti, was against such autocrats. The sages encouraged the commonalty tocome to the fore and displace suchKshatriya rulers.Right became mightier than might with the

former codified and the king subordinated to the constitution and to the code.

The new ruler,parthiva, who followed the Prthu constitution, was a leading member of the agro-

pastoral commonalty and not an aristocrat or a plutocrat or a technocrat. He was assisted by a

team of village chiefs,adhyakshas, civil administrators,nrpatis, who had limited magisterialpowers and a network of informal spies drawn from the ranks of free men (naras) who were not

subordinate to any clan or community.

This administration developed a political system based on the concept of seven constituents,king, bureaucracy, city, rural hinterland, treasury, army and political ally. But it still did notdevelop the concept and structure of an independent judiciary. It was still a quazi-feudal

state without a rational and permanent bureaucracy.

However, it did not take long to develop a rational bureaucracy and along with it an

independent judiciary. This development belongs to the field ofArthasastra, which refusedto leave judiciary out of the orbit of polity.

Manava Dharmasastra did not develop an independent judiciary but facilitated the

incipient bureaucracy to function also as the judiciary. It however laid the basis for objective

investigation of economic disputes and criminal acts and awarding of just punishments in casesthat did not come within the ambit of the village and domestic officials.

Arthasastradeveloped the formation of a cadre of

dharmasthaswho functioned as trustees ofpublic property, orphans and widows, caretakers of the aged and the handicapped and also as

members of the judiciary functioning along with the bureaucracy,amatyas, who had coercive

power too.

Manusmrti anticipated this development when it required the king to be accompanied by jurists

(Brahmans), and political counsellors (mantris), when he presided over the bench at his palaceto which nobles, scholars and representatives of commoners were invitees.


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The later Smrtis and the medieval scholars like Medhatithi and Kulluka were anxious to ensure

thatBrahmans who were pure and honest, intelligent and learned, objective and conservativewere associated with this politico-economic judiciary besides dominating the sociocultural

bodies that functioned at the village level. The decline of the Brahmans harmed the entire

judicial system and helped the mighty and the rich and the educated to exploit the weak and

the poor and the ignorant. This decline was however inevitable and not unanticipated.

Theparthiva, the ruler functioning under the Prthu constitution had to first inquire what had ledto the dispute that was referred to him. It might be traced to doubts about the validity of the

custom present in the region concerned. While the village or a group of villages may have been

following a particular practice for ages and would not tolerate its violation such solidarity couldnot be expected of a region where diverse and even contradictory practices might have been in

vogue for a long time.

Rarely one or two outsiders could settle in a village dominated by a single clan (kula) orcommunity (jati) as secondary residents and they did not dare to raise voice against its

overwhelming majority. But the administration of the region (desa) had to face diverse viewsand practices. And it was difficult to arrive at a common denominator that all would consent toabide by and similarly would eschew from their lives practices that were contradictory to this

common practice.

When the bench headed by the parthiva met it had this task of determining the common

denominator and it functioned as an arbitration board rather than a judiciary jealous to guardits supremacy. The details of the events had to be reread in the light of this common stand thatwas bound to vary from region to region and even in the same region from time to time.

No verdict can be treated as a precedent set forever and binding on all the population of the

large state. In contrast, the code that depended on the meaning of the letter of the law had to firstascertain that meaning and decide whether the act under dispute did indeed violate that meaning.

It gave little room to take refuge under the vague term, the spirit of the law.

Once the bench discusses the meaning it proceeds to examine the details of the case and give the

verdict and specify the penalty imposed. Theparthiva had to assign some time every day for thisduty. The views ofArthasastra and the later Smrtis and commentators on the details of these

proceedings are important and are dwelt on later.

The rivalry between the two strata, the executive known asKshatras headed by theRajanwho wieldedRajadanda and the judiciary known asBrahmans who exercisedBrahmadanda

has to be presented properly.

Theparthivawas neither a king nor a judge. He only implemented the direction given by the

bench of the judiciary, which met and discussed the issues in his presence and under his

presidency. He had no power to intervene in its proceedings or set aside its verdict.

Jha enumerates the eighteen heads of disputes as: (1) non-payment of debt (rnaadanam) (2)deposits (nikshepa) (3) selling without ownership (asvamivikraya) (4) joint concerns (sambhuya


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samutthanam) (5) non-delivery of what has been given away (dattasyaanapakarma) (6) non-

payment of wages (vetanasyaadanam) (7) breach of contract (samvidavyaktikrama) (8)rescission of sale and purchase (krayavikrayaanusaya) (9) dispute between the owner and the

keeper (vivadasvamipalaya) (10) disputes regarding boundaries (seemavivada) (11, 12) assault,

physical and verbal (dharmaparushya and dandavachika) (13) theft (steyam) (14) violence

(sahasa) (15) adultery (strisamgrahanam) (16) duties of man and wife (stripumdharma) (17)partition (vibhaga) (18) gambling and betting (dhyutamahvyam). These are the eighteen topics

that form the basis of lawsuits (vyavaharasthiti), according to Manusmrti. (8-4 to 7)

Jones who was the first British lawyer to recommend Manusmrti as the basis for civil

administration in India enumerated these titles of law as: (1) debt, on loans for consumption (2)deposits and loans for use (3) sale without ownership (4) concerns among partners (5)

subtraction of what has been given (6) non-payment of wages or hire (7) non-performance of

agreements (8) rescission of sale and purchase (9) disputes between master and servant (10)

contents on boundaries (11,12) assault and slander (13) larceny (14) robbery and other violence(15) adultery (16) altercation between man and wife and their several duties (17) the law of

inheritance (18) gaming with dice and with living creatures. These eighteen titles of law aresettled as the groundwork of all judicial procedure in this world. It was not necessary to translateiha as in this world.

Naradasmrti which is considered by some to be the most systematic of the Smrtis on this aspecthas enumerated them as: (1) recovery of debt (2) deposits (3) partnership (4) resumption of gift

(5) breach of contract of service (6) non-payment of wages (7) sales effected by a person other

than the rightful owner (8) non-delivery of sold chattel (9) rescission of purchase (10)

transgression of a compact (11) boundary disputes (12) mutual duties of husband and wife (13)law of inheritance (14) heinous offences (15) abuse (16) assault (17) games (18) miscellaneous.

Brhaspatismrti says that lawsuits are of two kinds as they originate in demands regarding wealthor injuries. The former is of fourteen kinds: (1)-lending money on interest (2) deposits and

treasure trove (3) invalid gifts (4) concerns of partnership (5) non-payment of wages (6)

disobedience (7) disputes concerning land (8) sale without ownership (9) revocation of sale andpurchase (10) breach of agreements (11) law between wife and husband (12) theft (13)

inheritance (14) gambling. The latter is of four kinds: (1, 2) two kinds of insult, (3) violence, and

(4) criminal connection with the wife of another man.

KautilyanArthasastrapresents these under different heads: (1) Concerning marriage, property

of a woman and compensation for remarriage of men (2) Duty of a wife, her maintenance,

enmity between wife and husband (3) Vagrancy, elopement (4) Division of inheritance (5)Special shares in inheritance and distinction between sons (6) Buildings (7) Boundary disputes

(8) Destruction of pasture lands, non-performance of agreements (9) recovery of debts (10)

Deposits (11) Rules regarding labourers (12) Cooperative undertaking (13) Rescission ofpurchase and sale (14) Sale without ownership (15) Resumption of gifts (16) Robbery (17)

Assault and (18) Gambling and betting. The approach of Kautilya to the issues covered here is

thorough and distinct and is dealt with separately. (Vide my treatise onFoundations of HinduEconomic State.)


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Jha translates the verse (8-8) as: Taking his stand upon eternal morality (sasvatadharma) he

shall form his decision (nirnayam) on the suits of men (nrs) who mostly carry on (charata)disputes (vivada) in regard to the aforesaid points. Jones read it as: Among men who contend for

the most part on the titles just mentioned, and on a few miscellaneous heads not comprised under

them, let the king decide causes justly, observing primeval law.

It is wrong to translatesasvatadharma as primeval law. It is eternal law; law legislated for

all times, past, present and future. Sanatanadharma also has the same note but it gives

more value to traditional practices than to the new decrees.Adidharma is said to be theoldest of the laws. Sasvatadharma is what is legislated forever. This status is claimed for

Manava Dharmasastra. It was held to be not only moral and just but also as consented to by allsections of the then larger society as a consensus.

The administrator could deal with only the disputes among free men (naras). The

commoners (manushyas) who belonged to clans and communities could not present their

disputes to him for arbitration.

Buhler translates the next verse (8-9) as: But if the king does not personally investigate the suits,

then let him appoint a learnedBrahmana to try them. Jones read it as: But when he can not

inspect such affairs (karyadarsanam) in person, let him appoint, for the inspection of them, a

Brahman of eminent learning. Jha reads it as: When he (nrpati) himself may not carry on theinvestigation of suits, he shall appoint a learned (vidvan)Brahmana to do the work of

investigation.

The power and duty to investigate was vested in the local civil administrator, nrpati. He was

permitted to appoint (niyukta) a learned Brahman to investigate but the latter was not giventhe right and duty to give a verdict. This feature of the powers of theBrahman who was

appointed by the civil administrator,nrpati, as an investigator of facts stands distinct from thepowers of theBrahman jurist who was appointed by theparthiva, the administrator of the rural

areas, to pronounce a verdict on conflicting practices.

The medieval commentators were imprecise when they interpreted, as translated by Jha: If the

man is conversant with morality (dharma), he does not allow himself to be misled. Knowledgeof the science of morality(dharmasastra) comes in useful. As for the knowledge of legal

procedure (vyavaharadarsanam), its presence is already implied. When the man is appointed to

do the work of deciding legal cases (vyavaharanirnayam), it follows that he is possessed of thatknowledge without which such cases can not be decided.

Jha translates the next verse (8-10) as: That man accompanied by three assessors shall enter the

excellent court (sabha) and either seated or standing shall investigate the suits on behalf of theking. TheBrahman appointed by the king is permitted to appoint three assessors to assist

him. These had to be scholars (vipras) in Vedas.

Thevipraswere not attached to clans and were scholars who moved about educating the

commoners and were not professional teachers.They were expected to give correct and unbiased


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views on the matters referred to them. These three vipras and theBrahmana who was a jurist

authorized by the king (raja) constituted theBrahmanasabha. It had legitimacy.

Thenrpati, the local civil administrator had appointed theBrahmana and the head of the state

had given authority to that jurist and the three assessors selected by the latter to function

as a constitution bench to hear the dispute on behalf of the king. TheBrahmana who wasasked to handle the issue while thenrpati stepped aside must have been a member of the

body of jurists recognized by the King (Rajan) under whom thenrpati and theparthiva

functioned as administrators.

TheBrahmanaSabhadealt with socio-political issues that emerged from economic disputes

and was not concerned with religious practices or issues pertaining to theology and soul.Brahma referred toAtharvaveda, the socio-political constitution of the Vedic age. (Ignoring

Atharvaveda and granting the status ofBrahma to all the Vedas were considerably later

developments.)Dharmasastra emerged as the socio-cultural constitution andArthasastra as thepolitico-economic constitution.

Jha translates the verse (8-11) imprecisely as: That place where three learnedBrahmanas

learned in the Veda sit, as also the learnedBrahmana appointed by the king, they regard asthe Court ofBrahmana. Jones was totally off the mark when he translated it as: In whatever

country threeBrahmans, particularly skilled in the three several Vedas sit together with the verylearnedBrahman appointed by the king, the wise call that assembly the court ofBrahma, the

court ofBrahma with four faces.

Buhler translated it as: Where threeBrahmanas versed in the Vedas and the learned (judge)

appointed by the king sit down, they call that the court of (four-faced) Brahma. This was a

misconception about the constitution of theBrahmasabha. Jha translates Medhatithis stand as:

The name ofBrahman has been mentioned for the purpose of extolling the court; the sensebeing that the court constituted as here stated is as unexceptionable as that ofBrahman himself.

The medieval commentator had lost touch with theVedicand early post-Vedicsocial polity and

missed the note that it was a constitution bench presided over by an expert inAtharvavedathat was meant here. The other three were scholars in the other three Vedas.The Smrtis havenot held identical views on this nomination of aBrahman as a judge. Most permitted any

qualified member of the three higher classes being so appointed as judge in place of the

Kshatriya ruler and aBrahman preferably.

But Sukraniti felt thatthe king should always appoint men of the caste (class) to which he

himself belonged as most members of the royal caste (Rajanyas) were likely to be well-

equipped. It was a political post and it was not advisable to depend on aBrahman for the

post of a judge, this work felt. Brhaspati was for a large bench of ten members. Jha points

out that Sukraniti was for a bench of three or five or seven members.Both were against

entrusting the work of the judiciary to only one person.

Medhatithi has not commented on the next verse (8-12): In a court (sabha) where justice is

pierced by injustice and the members of the court do not remove that dart, these members also


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become pierced. (Jha) Buhler translates it as: But where justice (dharma), wounded by

injustice (adharma), approaches and the learned (judges) do not extract the dart, there theyalso are wounded (by that dart of injustice). Katyayana states: Where a decision is taken by

councillors against the laws, there justice is slain by injustice.

The editors of Manusmrti advise the judges: One should either not enter the hall (sabha) at all orhe should speak out what is equitable (samanjasam); one (nara) who either speaks nothing or

speaks falsely becomes tainted with sin (kilbisha). (8-13) Why did these editors use the word

nara in this context? The free man (nara) need not have fear and should speak only the truth.

The free men(naras) referred to here, had given up the membership of their original clans and

communities. Thesenarasmanned the rural bureaucracy headed by thenrpati. [A vipra too wassuch a free man.]

When called upon to report what had actually happened this employee of the local government

should speak out the facts and not mislead the investigators by suppressing the facts or givingfalse declarations. If that free man feared to give damaging evidence he should avoid appearing

before the court.

Sukraniti suggests that it being an open court any one who knows the truth can enter it and speak

out. Medhatithi comments: When even an unauthorized person happens to be present, if he finds

that the judges are acting wrongly, he should not remain silent. If he fears molestation at thehands of the kings officers as to why he should speak when he is not authorized to do so, then he

should go away from that place. He seems to have read more than what Manusmrti meant.

Where justice (dharma) is destroyed by injustice (adharma) or truth (satya) by falsehood(anrtam), while people are looking on, there the members of the court (sabhasada) also aredestroyed. (8-14)The termanrta is to be understood as what is against the law of nature.It

needs to be noted that the laws of nature (rta) that were based on humanitarianism emanatingfrom empathy (rta) guided the society of the early Vedic age. But it was also true that that age

witnessed coercion of the weak by the mighty and the operation ofmatsyanyaya, the smaller fish

being swallowed by the larger.

This contradiction was corrected during the laterVedicage that upheldsatyaand declared thatright is might and that truth will always win. By the end of the Vedic age, bothsatyaandrtawere supplemented and even modified by the social laws, dharma, based on consensus.

The editors of Manusmrti were eager to stress that their call for protection of the people

who abided by the code based ondharma, which aimed at ensuring social stability and

advocated the principles of tolerance and non-violence was in no way a departure from the

earlier laws based onrta andsatya.

The proceedings in the court were guided by the principle that persons who stood by dharma

should not be defeated by those who followed a path contradictory to it. When the liberal andtolerant codes based onRtawere superseded by the code based on rigorous adherence to truth, Satya, the latter were opposed by the sadists (anrtam) who were known asasamanjasa,

unperturbed by the sufferings of other human beings. Samanjasarequired that empathy should


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lead to the removal of the sufferings of others.Those who refused to abide by the codes based on

dharma were similarly acting against the interests of those who abided by it.

Dharmasastra was not so rigid as the laws based on Satya or as liberal as those based onRta. Even this middle path was under threat from the practitioners ofadharma. The threat

from the kings officers to the free man (nara) who wants to speak out the truth though notpermitted to take part in the proceedings of the court is an assault on dharma.Naradasmrti too

warns that where justice is slain by injustice and truth by falsehood, the members of the courtwho look on with indifference become doomed to destruction.

Dharma has not always been able to win, it has to be acknowledged. The editors of

Manusmrti counsel: Justice (dharma) blighted (hata) blights (hanti); preserved, preserves(rakshita); hence justice should not be blighted lest blighted justice blight us. (8-15)

Manusmrti calls upon the participants in the court proceedings to ensure that the code based on

the principles ofdharma was protected. It was in their own interests thatdharma was not

harmed in any manner. [The term,dharma is not identical with the term, justice though it iscloser to the latter than to the term, religion which requires faith in a supernatural power and the

means prescribed for salvation.]

Medhatithi comments; Judgment should not be perverted, through fear; because justice, when

violated, blights our prosperity as also the prosperity of the sinful party and his helpers.

Manusmrti adds (8-16): For justice (dharma) is the revered (bhagavan) bull (vrsha); and he

who commits the violation (lam) of it, him the gods (devas) regard as low-born (vrshala);hence one shall not violate (lopaya) justice (dharma). (Jha)

Buhler translates this verse as: For divine justice (is said to be) a bull (vrisha); that (man) whoviolates it (kurutelam) the gods consider to be (a man despicable like) a Shudra (vrishala); lethim, therefore, beware of violating justice. Mahabharata (Santiparva) has referred to the

violation of justice using this imagery. This verse seems to be a later interpolation effected by the

orthodox elements who had become desperate as the state and the judiciary failed toupholddharma. The followers of Siva (Rudra) who has later been deified revere the stud.

The nobles (devas) who belonged to the cadre ofRudrashad pronounced the violators of thesanctity ofVrshabhaas outcasts (vrshala). [Vrshabha was a teacher (bhagavan) belonging to

the Saivaite school, which stood by theAtharvan sociopolitical constitution. The Sramanas too

followed Vrshabha. These Sramanas and theAtharvaBrahmans enjoyed equivalent statuses in

the polity when theManava Dharmasastra

and theArthasastra of Pracetas

were firstdrafted.]

Jones translated this verse as: The divine form of justice is represented as Vrshabha, a bull; andthe gods consider him who violates justice as a vrshala or one who slays a bull; let the king

therefore and his judges beware of violating justice.


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The description, divine form of justice is unwarranted and is misleading.The interpretation that

the Shudras were called Vrshalas is unwarranted. It is however to be noted that the Rudras werepushed into the forests during the later Vedic times by the other three cadres of nobles (devas),

Vasus,Maruts andAdityas.

Later the followers of theRudras were refused entry into the three higher varnas, social classes,and declared as Vratyas and Shudras though they were highly religious. Vrshala was one who

was unable to control his urge for sex and who exposed his penis and was a threat to civilizedsociety.

Jha translates the next verse (8-17) as: Morality (justice) (dharma) is the only friend (suhrta)

who follows one even after death (nidhana); every thing else perishes along with the body. Dharma assures one that he would have no rebirth and if he had one, he would be born in a high

family. In this verse the editors tell the parties to the dispute and the assessors that only the merit

accruing from upholding of justice,dharma would stand good at the end.

Suhrta orMitra was a Vedic official who functioned along with Varuna who took into custodythe person who failed to perform his duty and repay his debts to the nobles, the sages and the

elders (devas, rshis andpitaras), the three non-economic cadres of the society.Mitra who

witnessed the action taken against the guilty was however visualized as a well-wisher of the

latter.

The Vedic official designated asDharma, the upholder of justice, morality and social

stability, was later equated with Yama, the Vedic controller who came down heavily onthose who violated the prohibitory orders. (Yama is often presented as the god of death.) The

editors of Manusmrti would presentDharma as a friend, philosopher and guide who

recommended the pursuit of lasting spiritual benefits in contrast to the temporary and

worldly gains that man tended to follow.

Buhler translates the next verse (8-18) as: One quarter of (the guilt of) an unjust (decision) fallson him who committed (the crime), one quarter on the (false) witness, one quarter on all the

judges (sabhasada), one quarter on the king (rajan). The ideal situation required the king (rajan)

to preside over the house of nobles and scholars, which would try the case and pronounce theverdict after allowing everyone to speak out his views.

TheBrahmasabha with theBrahmana(who was an expert inBrahma, that is,Atharvaveda, thesocio-political constitution) hearing the case assisted by three Vipras(who were scholars each

in one of the other three Vedas) was a constitution bench. It considered only legal dilemmasand recommended what it felt to be the correct finding. It was not to be throttled by the kings

men.

Of course all who were party to the miscarriage of justice would be held guilty and punished

equally whether he was the delinquent or the witness or a member of the bench or its presidingofficer. This verse is not to be interpreted as exonerating the guiltyBrahmana judge or the king.


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Jha translates the verse (8-19) as: Where, however, the person (kartaram) deserving of

censure (ninda) is actually censured, there the king (raja) becomes sinless (anena), the

members of the court (sabhasada) become freed (muchyanta), and the sin falls upon theperpetrator (ena).

Buhler translates it as: But where he who is worthy of condemnation is condemned, the king isfree from guilt, and the judges are saved (from sin); the guilt falls on the perpetrator (of the crime

alone). Jones read it as: But where he who deserves condemnation shall be condemned, the kingis guiltless and the judges free from blame: an evil deed shall recoil on him who committed it.

The two verses read together indicatethat the constitution bench,Brahmasabha, could

reexamine the case tried by the king in his open court and might find the verdict given by

him and the court valid or invalid. If he had acquitted the guilty, then the guilty, his witness,

the officers of the court and the king were all found to be wrong and punished. If the guilty had

been penalized correctly, then the king and members of his court would be pronounced as freefrom procedural errors. There could be no exoneration of the criminal on technical grounds. The

comment attributed toMedhatithi, Where the guilty person is not able to hide his guilt and hidguilt is duly exposed then everything turns out to be right is not to the mark.

The next verse (8-20) has raised eyebrows. Jha translates it as: Even a so-calledBrahmana

(brahmanabruva) who makes a living (upajivi) by his caste only (jatimatram) may at

pleasure (kamam) be the propounder of the law (dharmavakta) for the king (nrpati), but nota Shudra under any circumstances.

Buhler interpreted it as: ABrahmana who subsists only by the name of his caste (jati) or one

who merely calls himself aBrahmana (though his origin be uncertain) may, at the kings

pleasure, interpret the law to him, but never a Shudra. Jones interpreted it as: ABrahman

supported only by his class, and one barely reputed aBrahman but without performingsacerdotal rites may at the kings pleasure interpret the law to him; so may the two middle

classes; but a Shudra, in no cases whatever.

The choice made by the administrator (nrpati) while appointing one to the bench is not

questioned unless that assessor or judge happens to be a Shudra, an uneducated worker. ABrahman by birth (jati) and by personal claim was preferred toKshatriyas and Vaisyas for

nomination to the post of a judge.

The local civil administrator,nrpati, made the appointment and it was ratified by the king,the head of the state, and theBrahman was authorized to preside over the constitutionbench. The other three members wereViprasrecommended by that judge who was well versed

in theAtharvaveda, the socio-political constitution and the threeViprasin the other threeVedas.[The Vedas were not theological works. While the Rgveda described the socio-cultural

constitution of the Vedic times in its hymns which were chronicles of those and earlier times,

Atharvaveda enshrined the socio-political constitutions of those times.]


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Often the civil administrator (nrpati) was unable to get such aBrahman who was a jurist. In

such a situation, he might appoint any member born in the vocational community ofBrahmanswho functioned as priests to earn their livelihood or who claimed to be Brahmansthough

functioning as landlords or traders. This decadence was noticeable during later centuries. The

medieval commentator, Medhatithi, was aware of it but he did not stress that it was the malaise

of the migration ofBrahman scholars to selected centres of learning and royal courts.

The judiciary (even in the districts and lower levels) required educated members on its benches.It could not afford to have uneducated workers as its members. It is irrational to treat this as

social discrimination practised and incited by the Brahmanical castes against Shudra castes.Every context in which there appears to be discrimination against the Shudras who wereilliterate workers and had no personal property should be examined carefully before concluding

that theBrahmansKshatriyas were prejudiced against them. and the

Jha reads the next verse (8-21) as: The kingdom (rashtram) of that king (raja) for whom the

investigation of law (dharmavivechanam) is done by a Shudra, while he himself is looking on

suffers like the cow in a morass. Jha rejects the stand of Medhatithi thatdharmavivechanammeant decision on legal cases (dharmanirnayam).

It was the duty of the king to invite a jurist to interpret the constitution. If he failed to assert his

position as the head of the state and appoint such a qualified jurist as the head of the constitutionbench that would analyze its provisions and give the apt interpretation, and instead allowed the

workers to have their way, it would affect the rural hinterland (rashtra) adversely. [It is incorrect

to translate the term,rashtra as kingdom or as a sovereign ethnic entity of native peoples, nation.Only the term,janapada, denotes the latter entity.]

A Shudra being uneducated would not be able to study and interpret laws correctly. [One

who has acquired formal education is not to be included in the class ofShudras.] There would bemiscarriage of justice if an ineligible person is appointed as a judge. Most of the civil disputes

concerned property and the Shudras who had no personal property did not have acquaintance

with the laws governing these. Even disputes pertaining to marriage were linked to property.

Jha translates the verse (8-22) as: That kingdom (rashtra) where there is a majority of

Shudras, which is infested with non-believers (nastikas) and destitute of twice-born people(dvijas), quickly perishes entirely, becoming afflicted by famine and disease. The intention

was to get a vast majority of the population (especially of the rural hinterland, rashtra, educatedand enabled to have personal property and freed from being servants of others.

Medhatithi and many other writers of the later times tried to avoid facing this reality and argued

that this calamity was the consequence of having judiciaries filled in by uneducated Shudras andatheists amongBrahmans and other classes. But this intention was not translated into reality and

by the medieval times most countries suffered from illiteracy, poverty, famine and disease and a

few monopolizing all lands. Some attributed this reality of decline to the spread of atheism. Infact, loss of faith in the almighty god was the consequence of this misery.


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This argument cannot be brushed aside lightly. Justice cannot be tempered with mercy bythose who do not believe in the existence of the great soul and who conduct themselves as thefinal arbiters of the destiny of all at their mercy. By the term,nastika, Medhatithi understood

those persons, as were materialists (lokayatika), denying the existence of other social worlds

(paralokas).

Lokayatameant social control and it denied the state and the clergy any right to interfere in

the economic pursuits of the people and claimed that the latter could regulate their conduct

by themselves without reference to precedents or permanent social legislation.

The followers oflokayata,most of whom were commoners and admirers of Brhaspati,rejected

the need to arrive at social integration (lokasamgraha) and refused to recognize or interactwith the other social worlds, the generous aristocracy and the industrious industrial society

of the forests and mountains.They did not look beyond the right of the individual in thecommonalty (to be precise, of a member of the bourgeoisie) to pursue his interests.They

ignored the cultural aristocracy and also the intelligentsia.

Jha translates the next verse (8-23) as: Having occupied the judgment-seat (dharmasanam

adhishtaya), with his body covered and mind collected, he shall salute the guardian-deities

(lokapalas) and then proceed with the investigation of suits (karyadarsanam).

Jones read it as: Let the king or his judge, having seated himself on the bench, with his bodyproperly clothed and his mind attentively fixed, begin with doing reverence to the deities, whoguard the world; and then let him enter the trial of cases. Buhler read it as: Having occupied the

seat of justice, having covered his body, and having worshipped the guardian deities of the

world, let him with a collected mind begin the trial of causes.

The termBrahmasanam indicates that it was a constitution bench chaired by the expert intheAtharvaveda,Brahma, (assisted by the three Vipras) and not an ordinary single-member

bench chaired by the civil administrator (nrpati) or by the rural administrator (parthiva) or

by the king (raja).Dharmasanam would indicate an ordinary bench that would base itsdecisions on the social code,dharmasastra.A nrpati or a parthiva or a king (raja) couldoccupy this latter seat though he was not an expert in law.

It was not a political or economic session chaired by the king though these aspects were not

barred from being considered. The main concern was withdharma, as Medhatithi points out.Jha was imprecise when he translated it as that seat upon which the pronouncing of judgments is

the principal work done. Medhatithi explains lokapalas as the eight lokapalas (guardians of the

peoples),Indra etc.

The term, lokapalas, referred to the eight-member ministry,Indra, Agni, Aditya, Soma,Vayu, Varuna, Kubera and Prthvi who represented the different sectors (cultural aristocracy,

civil judiciary, coercive power of the state, intelligentsia stationed in the forests and mountains,the mobile populations, the higher judiciary dealing with duties, plutocracy and bourgeoisie) of

the larger integrated society.


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It is wrong to describe them as guardian deities. It is also wrong to hold that they were the

recipients of the gifts or of salutation. It was the court etiquette to respect them as guardians of

the peoples. [It is imperative to reject the postulate thatIndra,Agni etc. were deities of the Vedic

society that was noted for its worship of nature in its various forms and for polytheism.Lokapalas were human beings and administrators and not gods.]

Buhler translates the next verse (8-24) as: Knowing what is expedient (artha) or inexpedient

(anartha), what is pure justice (dharma) or injustice (adharma), let him examine the causesof suitors according to the order of the castes (varna). Jha translates it as: Understanding(budhva) both desirable and undesirable to be only justice and injustice, he shall look into all the

suits of the suitors according to the order of the castes.

Jones translated it as: Understanding what is expedient or inexpedient, but considering only what

is law or not law, let him examine all disputes between parties, in the order of the several classes.

Medhatithi seems to have noted that the king as the judge was asked not to decide the case on thebasis of what would be a gain to him in terms of gold.

It was expected that the king would not seek guidance from the provisions of the

Arthasastra on what was economically profitable (artha) and what was economicallyharmful (anartha) though it was an economic dispute.He was asked to take the guidance ofDharmasastra that stood for morality, ethics and justice.This was the counsel that the

unattached intellectuals(budhas), especially of the social periphery gave him.

They were the spokesmen of the individuals of the unorganized sector who were the victims inthe expansionist moves sanctioned and inspired by theArthasastra. These intellectuals

(budhas) were willing to acceptDharmasastra as it protected the interests of all classes andall sectors but had reservations aboutArthasastra.

While examining the cases, the judge was advised to follow the rules ofvarna hierarchy. This

must have been a later interpolation byBrahman scholars who were afraid that the intelligentsiaof the periphery (who had not accepted this hierarchy) might upset their apple cart by insisting

on equality of all litigants.

Jha translates the next verse (8-25) as: He shall discover the internal disposition of men (nrs)

by external signs: by variations in their voice, colour (varna) and aspect, as also by meansof the eye and by gestures. Not all the members of the larger society had been assigned to one

or the other of the four classes,varnas

. Thenrpati

had risen from the ranks of the free men,nrs

ornaras.

The settled clans and communities could be distinguished easily on the basis of their occupationsand classified as varnas.Such classification could be effected in the case of the free men (nrs)

from their bearings and they could be given the advantages that the different classes claimed for

themselves.


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The inner mind is indicated by such variations as those of aspect, gait, gesture, speech and

by changes in the eye and the face. (8-26) It was the individual who was being assessed for his

honesty and for his plight. It may be noted that Varna classification and hierarchy would not be

given undue importance while examining the parties and their witnesses.Every individual wouldbe heard with equal regard as another whether he had been assigned to a particular class or not.

Manusmrti was still on the anvil when the first steps to effect varna classification were taken.

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Constitution of the Court of Justice

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