A rudimentary analysis of the sophisticated legal system in ancient India, which needs to be better understood by law faculties, jurists, students, and the public alike
Ved Nanda
Several British historians and jurists were highly critical of the rich and comprehensive legal system of ancient India. Just to give two examples, historian and jurist Henry Main called it “an apparatus of cruel absurdities.” A retired member of the Indian civil service, Alan Gledhill, stated that before the British took control of India, “there was a dearth of legal principles.” Others have called it a poor, antiquated, and static system that was ultimately replaced by the British, who gave Indians a sense of justice and rule of law.
Nothing could be further from the truth. Whether such description resulted from ignorance or reflected the imperialist arrogance, or perhaps demonstrated a purposeful distortion is of little consequence today; but the outcome has been an erroneous portrayal of Indian jurisprudence that has put it in a bad light all over the world.
The current legal system – the legacy of the common law imprint of the British Empire – is notorious for the backlog of cases. Three years ago, the Law Commission of India acknowledged that the problem of delay was “not only enormous but complex”. The inordinate delay in court proceedings, from the date of filing a suit to its final disposition, is indeed abysmal. To illustrate, on July 31, 2017, the Wall Street Journal described the “slow grind” of the wheels of justice in Allahabad High Court in these words:
A dairy farmer settled into his usual spot, hoping for a breakthrough in a 34-year-old property dispute filed before his birth by his father. In bail court, Justice Vipin Sinha faced his usual, impossible caseload—380 cases in 300 minutes. What he can’t finish will fall to another day. A typical workday at the 150-year-old Allahabad High Court reveals a pattern repeated across India’s overburdened judicial system, which is hobbled by a pileup of cases that stretch as far back as four decades. The backlog has eroded the rule of law in the world’s largest democracy, upended constitutionally guaranteed rights of swift justice and threatens India’s emergence as a true global power.
As history reveals, from the Vedic period, the concept of Dharma, which generally means righteousness or duty, ruled Indian civilisation. “Dharma protects those who protect it. Those who destroy Dharma get destroyed.” [Manu VIII-XV]
As the British introduced Anglo-Saxon jurisprudence, it totally eclipsed the rich jurisprudence beautifully articulated in the Vedas, Smritis, Kautalaya’s Arthashastra, Nitishastras, and Vijnaneshwara’s Mitakshara, which captures appropriately the essence of the administration and dispensation of justice.
In a recent lecture, Rama Jois, former Chief Justice of Punjab and Haryana High Court and the authority on ancient legal system, quoted Justice SS Dhavan, a former judge of Allahabad High Court, who wrote in a paper: “I consider that the teaching of Indian jurisprudence in our law faculties is essential for the healthy development of our judicial process . . . Today, a law student in India is virtually ignorant of Indian jurisprudence. He does not know as I did not know – that the Indian judicial system and the Indian judiciary have the oldest pedigree of any existing judicial system in the world, that the “dharma sthiyam” part of Kautilaya’s Arthashastra is, in the words of the present Chief Justice of India, ‘one of the earliest secular codes of law in the World’, and the high level at which legal and judicial principles were discussed, the precision with which statements of law were made, and the absolutely secular atmosphere which it breathes throughout, give it a place of pride in the history of legal literature.”
I must confess that several years ago when I taught Hindu Law at Dealhi University for a year before I went to the United States, I was also ignorant of this treasure of jurisprudence.
Consider, for example, the qualities of a person who should be appointed as a judge, as set out in Mahabharata’s Shanti Purva 24-18: A person who is (i) well versed in Vyavahara (laws regulating judicial proceedings) and Dharma (law on all topics), (ii) a Vahushruta (profound scholar), (iii) a Pramanajna (well versed in the law of evidence), (iv) Nyayasastravalambinh (law abiding) and (v) has fully studied the Vedas and Tarka (logic) should be appointed to carry on the administration of justice.
Narada Smriti and Katyayana Smriti have similar provisions. Also, in Raj Dharma, the king was advised to appoint only suitable persons as judges, indicating the qualities and the qualification of such a person: “Let the king appoint, as members of the Court of Justice, honourable men of tried integrity (sabhyas) who are able to bear the burden of the administration of justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends and foes” [(Narada Smriti p. 36-4-5) (Dharma kosha 43)]. There are many similar criteria in other Smritis.
To ensure a fair trial, the texts warn that five causes could give rise to the charge of partiality against the judge, which are: “(i) Raga (affection in favour of a party), (ii) Lobha (greed), (iii) Bhaya (fear), (iv) Dvesha (ill-will against a party), and (v) Vadinoscha Rahashrutihi (the judge meeting and hearing a party to a case secretly). (Shukra Niti IV-5-14-15)
The Smritis also warn against delay in hearing cases and examining the witnesses, which was considered as the miscarriage of justice. Brihaspati sets out detailed provisions for the Court Hall called Dharmadhikarana (Hall of Justice). The courts were open and transparency was the norm. No one was above the law and no one was seen superior or inferior. Several statements in Smritis harken Article 1 of the Universal Declaration of Human Rights, which reads: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
As to the types of courts, Brihaspati speaks of four types: moveable courts, stationary courts, courts deriving authority from the king, and courts presided by the king himself. Bhrighu mentions 15 kinds of courts and there are provisions for appeals to the highest court. Rules administering justice fell under one of the following four heads: sacred law (Dharma), secular law (Vyavhara), custom (Charitra), and royal commands (Rajasasana). Almost all lawgivers place custom as a priority principle in the administration of justice. Smritis identify 18 main titles of law: recovery and payment of debts, deposits and pledges, sale without ownership, partnerships, resumption of gifts, payment of wages, non-performance of agreements and violation of conventions, sale and purchase, disputes between owners of cattle and herdsmen, boundary disputes, defamation, assault, theft, robbery and violence, adultery, duties of husband and wife, inheritance and partition, and gambling and betting. The judge was to be guided by the verdict of the jury.
Another untouched subject here is the Panchayat System that has prevailed as the foundational culture, history, and legend of India ever since the Rig Veda. These assemblies symbolise righteous self-government and local self-administration, resolving all kinds of disputes amicably and constructively. They constituted almost self-sufficient and autonomous miniature republics.
(The writer is Distinguished Professor at the University of Denver and Director of the Ved Nanda Center for International and Comparative Law)
