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hapter:
Judicial systems in Indian Sub-continent:
Ancient Period1
Hindu Period: Ancient Judicial System
This period extends for nearly 1500 years before and after
the beginning of the Christian era. A well organized system of
laws and Courts is known to have existed for the administration
of civil, criminal and revenue justice during the Hindu rulers,
notably King Ashok, Chandra Gupta Mourya, Harashvardhan,
Kaniska etc.
During the Hindu Period in ancient India Hindu society,
institutions and beliefs gradually developed and a definite shape
was given to them. Many important beliefs and doctrines of
today are deep-rooted in the ancient Hindu ideology. The ancient
judicial system can be understood properly by considering briefly
three important factors:
I. The social institutions in ancient India.
II. Political system of ancient India.
III. Religion and religious philosophy of ancient India.
I. The Social institutions in ancient India:
In determining the social institutions two important
concepts may be stated:
1. Caste System.
1
Kulshreshtha, V.D, Landmark in Indian Legal and Constitutional History, 9th Edition, Eastern Book
Company, 2009, pp. 3-16.
Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
2. Joint Family System.
1. Caste System:
It was emerged in ancient India as unique and one of the
most rigid social systems ever developed in any part of the
world.
A caste was a social group consisting solely of persons
born in it.
Whole society was divided into four main castes which
were precisely and clearly defined and rules relating to
their lawful activities and functions dominated all social
activities. Four castes are as follows:
i. Brahmins: The Brahmins were considered to be
the most superior caste. The scholars and priests of
the Hindus belonged to this caste. They enjoyed
much privileges and exemptions than other castes.
ii. Kshatriyas: They were the nobles and warriors to
these caste rulers of various states and kingdoms
mostly belonged.
iii. Baisyas: They were the merchants and traders.
iv. Sudras: They were the workers and lowest caste
among other three castes.
The caste was determined by birth.
Caste determined the pattern of life amongst Hindus
relating to their status, living, marriage, profession and
social obligations.
It became absolute and reached highest point in caste
panchayat.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
Though the system was conservative, still it was most
needed to meet the requirements of ancient India.
2. Joint Family System:
It was another institution which determined the social
order amongst Hindus in ancient India.
A family was considered as a unit of the Hindu social
system. It included parents, children, grandchildren, uncle
and their descendants and their collaterals on the male
side.
The patriarch (father) was the head of the family, whose
authority was absolute over the members of his family. He
represented all the members of his family before the law
and claimed absolute obedience from them.
The family group was bound together by Sraddha
ceremony. A number of families constituted a sect, gram
(village) which became an administrative unit also.
Two systems of family law namely mitakshara and
dayabhaga became the basis of Civil law. They dealt with
the property rights in a Hindu Joint Family and mostly
amongst land-owning families.
II. Political System of Ancient India:
The political system and institutions were varied and
complex in ancient India. India was divided into various
independent states some monarchies and the rest tribal republic.
There were two important concept regarding political systems of
ancient India:
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
1. Dharma:
It was the most important concept of the Hindu Political
thought. According to the Dharma-shastras the word
‘dharma’ came to mean the privileges, duties and
obligations of a man, his standard of conduct as a member
of Aryan community, as a member of one of the caste as a
person in particular stage of life. The King himself was
also subject to law.
2. Saptanga(seven limbs):
The most important concept of state was saptanga. The
Saptanga theory was given by the ancient Indian Political
thinker Kautilya.
Kautilya builds up his theory of the state as an organic
entity on the basis of seven elements, which he describes
in his Arthasastra as ‘Saptanga’ namely.-
a. The King,
b. the minister,
c. the country,
d. the fortified city,
e. the treasury,
f. the army and
g. the ally.
Of the seven elements the King was termed to be the most
superior & counted on the top of the list to which the rest
six are subordinate and obedient.
III. Religion and religious philosophy of ancient India.
The form of Hindu Religion which prevailed in India
previous to the spread of Buddhism is generally known as
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
‘the Vedic Religion’ and religion which succeeded
Buddhism is generally known as ‘the Puranic Religion’.
The Hindu Religion and philosophy laid down four great aims
of Human life, namely:
1. Dharma (religion and social law).
2. Artha (wealth and economic well-being).
3. Karma (doing work)
4. Moksha (salvation of the soul).
The correct balance of first three was to lead to the fourth.
These concepts played a very important role in Indian
thought.
Ancient Kingdoms: Administrative Units
In order to understand the ancient judicial system it is
necessary to have a short account of the administrative
divisions prevailing in the ancient States.
Various independent States existed in ancient India and
king was the head of and supreme authority in each states.
The King was assisted by his chief priest (Purohita) and
military commander (Senani).
Each state was divided into provinces and these into
divisions and districts. In terminology they were different
and in area also.
Separate governors, according to their status were
appointed with different designations for each province or
district by the King and in some places their appointment
was hereditary.
There were Cities at the meeting place of districts known
as Janapada-Sandhishu. The city was administered by a
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
separate governor namely Nagaraka/Purapala(like
Mayor of the City Corporation).
Apart from cities there were a large number of villages all
over India. In fact the village was the unit of government.
Each village consisted of a village headman and village
council or village panchayat. They assisted the district
authorities in controlling the village administration and the
office of the village headman was mostly hereditary.
According to Kautilya’s Arthasastra, the realm was
divided into four administrative units called:
i. Sthaniya (i.e. a fortress established in the centre
of 800 villages;
ii. Dronmukha (i.e. a fortress established in the
centre of 400 villages;
iii. Kharvatik (i.e. a fortress established in the
centre of 200 villages;and
iv. Sangrahana (i.e. a fortress established in the
centre of 10 villages.
Law Courts were established to decide disputes between
citizens in each of these places and at the meeting places of
districts (Janapada-Sandhshu).
Administration of Justice
The essential features of judicial system of Hindu Period
were as follows:
A. Administration of Justice: Organization of Court
Structure
There were following types of courts during Hindu Period.
i. The King’s Court
ii. The Chief Justice’s Court
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
iii. Special tribunal
iv. Town or District Court
v. Village Court
vi. Arbitration Council
vii. Family Courts
i. The King’s Court:
The King’s Court was the highest court of
appeal in the State. It had original jurisdiction in
cases of vital importance to the state.
In this Court, learned Brahmins, the Chief
Justice and other judges, ministers, elders and
representatives of the trading community in
administering justice, advised the King.
ii. The Chief Justice’s Court:
It consisted of the Chief Justice and a board of
judges to assist the Chief Justice.
All the judges in the board belonged to three
upper castes (Brahmins, Khastriya,Baisya)
preferably Brahmins.
iii. Special tribunal:
Sometimes separate tribunals with specified
territorial jurisdiction used to be formed among
judges who were members of the board of the
Chief Justice’s Court.
The tribunals were, a) stationary, b) movable
courts held under the royal signet in the absence
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
of the King and c) Commissions under the
King’s presidency.
iv. Town or District Court:
There were town or district courts administered
by the governors or Nagaraka under the
authority of the King.
v. Village Court:
The local village councils or kulani, similar to
modern panchayats, was constituted at village
level.
The Council consisted of a board of five or
more members for administration of justice to
villagers.
The council dealt with petty civil and criminal
cases.
vi. Arbitration Council:
There were tribunals consisting of a president
and three or five co-adjudicators.
The tribunals or councils dealt with the disputes
amongst members of various guilds or
associations of traders or artisans (Sreni),
various corporations, and trade guilds.
vii. Family Courts:
Family Courts were also established due to the
prevailing institution of the joint family system.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
To decide civil disputes amongst family
members Puga assemblies made up of groups
of families in the same village.
Each lower Court showed full respect to the decision of
each higher court. According to Brihaspati, “First come the
family arbitrators; the judges are superior to the families; the
Chief Justice (Adhyaksha) is superior to the judges; the King is
superior to all of them and his decision becomes law.”
B. Judicial Procedure:
Judicial Procedure was very elaborate during ancient Hindu
period. Judicial procedure which prevailed during Hindu Period
was as follows:
i. Stages of a Suit.
ii. Bench of Judge’s.
iii. Appointment of Judges and Judicial Standard.
iv. Doctrine of Precedent.
v. Evidence.
vi. Witnesses.
i. Stages of a Suit:
According to Brihaspati a suit or trial consisted of four
parts:
a) The plaint (Poorvapaksha);
b) The reply (Uttar);
c) The trial and investigation of dispute by the Court
(Kriya); and
d) The Verdict or decision (Nirnaya)
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
ii. Bench of Judge’s:
It was a cardinal rule of the administration of
justice in ancient India that, justice should not be
administered by a single judge.
Generally a bench of two or more judges would
administer justice even the King decided cases in
his council.
iii. Appointment of Judges and Judicial Standard:
In the appointment of the Chief Justice and other
judges the question of caste consideration played
vital role. The chief Justice was mandatorily
appointed from Brahmins. A Sudra was forbidden
to be appointed as a judge.
Appointments were made from among the persons
who were highly qualified and learned in law.
Women were not allowed to hold the office of a
judge. Judges were required to take the oath of
impartiality when deciding disputes between
citizens.
iv. Doctrine of Precedent:
The decisions of the King’s court were binding on
all lower courts.
The principles of law declared by higher courts
were taken into consideration by the lower courts
while deciding cases.
v. Evidence:
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
During the course of proceedings both the parties
were required to prove their case by producing
evidence. Ordinarily, evidence was based on any or
all the three sources namely, documents, witnesses,
and the possession incriminating objects.
In criminal cases, sometimes circumstantial
evidence was sufficient to punish the criminal or
acquit him.
vi. Witnesses:
In civil cases, the social status and qualification of
the witness was always enquired into by the court.
Witnesses were required to take an oath before the
court.
False witnesses were severely fined by the courts.
Narada says that, they were condemned to go to a
horrible hell and stay there for a Kalpa.
C. Trial by Ordeal
Trial by ordeal was a method to determine the guilt of a
person. Trial by ordeal was considered as a valid method of proof
by the ancient Indian society.
Trial by ordeal when applied:
Agni Purana prescribes a detailed account of ordeals as
they existed in ancient India. It points out that only in cases of
high treason or very serious offences the trial by ordeal was
applied. In other petty matters, it was sufficient to prove the truth
by taking an oath.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
Smriti writers suggested that trial by ordeal was applied to
cases where any concrete evidence on either side was not
available.
Types of Ordeal:
Some important types of ordeal, which were commonly
adopted, may be stated as follows:
I. Ordeal Of Balance (Dhata):
In ordeal of balance, the accused was made to sit in
a balance and weighed. He was then made to pray to God.
If his part of balance was lowered after prayer he was
deemed guilty.2
II. Ordeal of Fire (Agni):
According to the Hindu Myth, fire is considered to
be God and it has purifying qualities.3 According to the
ordeal fire, accused was made to walk through fire. If he
suffered no harm, he was held innocent.
There is a reference to this ordeal in the Ramayana
where Sita had to prove chastity of her captivity by
Ravana by walking through fire. Sita suffered no harm by
the fire God.
III. Ordeal of Water (Kosa):
Water seen as a sign of purity under the Hindu
mythology was used to test the guilt of the accused.4
In ordeal of water the accused was required to
drink water used in bathing the idol. If he had no harmful
2
John W. Spellman: Political theory of Ancient India,Clarendon Press, 1964, p. 120.
3
Halim Abdul, The Legal System of Bangladesh, 8th Edition, CCB Foundation, Dhaka, 2014, p. 39
4
Ibid
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
effect within the next 14 days he was considered to be
innocent.
IV. Ordeal of Poison (Bisa):
In ordeal of poison, the accused was required to
drink poison. If he survived he was held innocent.
V. Ordeal of Lot:
In ordeal of lot he was required to draw from two
lots i.e. Right (Dharma) and Wrong (Adharma). If he
drew the lot of Dharma, he was held innocent.
VI. Ordeal of Rice-Grains:
In ordeal of Rice-Grains, the accused was required
to chew unhusked rice and then asked to spit out. If blood
appeared in his mouth, he was considered to be guilty,
otherwise not.5
VII. Ordeal of Fountain-cheese:
In ordeal of fountain-cheese, the accused was to
drink some special type of water. If he becomes delirious
and confess his misdeeds he was held guilty.
D. Trial by Jury
The jury system existed in ancient India but not in the
same form as we understand the term now. There is evidence that
the community members used to assist the administration of
justice. They were merely examiners of the cause of conflict and
placed true facts before the judge though the verdict was declared
by the presiding judge and not by the jury.
5
J.W McCrindle: Ancient India as Described by Ktesias.pp.17,18
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
E. Institution of Lawyers
Smritis do not refer to the existence of any separate
institution of lawyers in the ancient Hindu judicial system. The
organization of the lawyers as it exists today was not in existence
in the ancient Hindu period.
F. Crimes and Punishments
In ancient Hindu period, punishment was considered to be
a sort of expiation which removed impurities from the offender
and reformed his character.
According to Manu, men who are guilty of crimes and have been
punished by the King will go to heaven, becoming pure like
those who perform meritorious deeds.
Purposes of Punishments:
There were following four main purposes of
punishments6:
a. to meet the urge of the person who suffered,
b. to take revenge or retaliation;
c. to adopt deterrent and preventive measures; and
d. to reform and release the evil-doer.
Methods/types of Punishment:
Manu, Jajnavalkya and Brihaspati state that there were
four methods of punishment, namely.-
a. by gentle admonition,
b. by severe reproof,
6
P.V Kane: History of Dharmasastra, Vol. III, pp. 388-390.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
c. by fine, and
d. by corporal punishment.
These punishments may be inflicted separately or together
according to the nature of offence.
Grounds/factors which were taken into consideration by the
Judges before awarding punishments:
According to Kautilya, before awarding punishments,
following factors must be take into consideration by the Judges:
motive and nature of the offence,
time and place of the offence,
strength, age, conduct (or duties) of the offender,
learning and monetary position of the offender and
the fact whether the offence is repeating one.
The Dandaviveka quotes following factors must be taken into
consideration:
the offender’s caste,
the value of the thing,
the extent or the measure, use or usefulness of the thing
with regard to which an offence is committed,
the person against whom a offence is committed such as
an idol or temple or King or Brahmin,
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
age, ability (to pay) of the offender,
time, place, nature of the offence whether it was repeated
or was first offence.
Exemption from Punishment:
Certain classes of person were exempted from punishment
under the ancient criminal law in India. These are follows:
an old man over 80 years,
a boy below 16 years
women and persons suffering from disease are to be given
half Prayaschitta and Sankha,
a child less than 5 years was considered to be immune
from committing any crime and therefore was not liable to
be punished.
as a general rule a Brahmin offender was exempted from
death or corporal punishment.
Rules of Punishment for offences:
Under the ancient criminal law.-
Offenders were required to pay fine as well as to undergo
corporal punishment for their offences.
In certain cases, the court was empowered to grant
compensation to the aggrieved party in addition to the
punishment given to the offender.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
Punishment for Certain offences:
Punishments, which were awarded for certain offences
like theft, adultery and rape, defamation or contempt and murder
were as follows:
I. Punishment for thefts:
On a large scale serious thefts were punished with
death.
In certain cases the whole village was held
responsible for theft or lost property. The villagers
were held liable to make restitution of lost property
if they were unable to prove that the lost property
was taken away from their village.
The King or his local representative was held liable
to pay for the missing property or theft as they were
responsible for policies and maintaining law and
order.
II. Punishment for adultery and rape:
In adultery and rape, punishment was awarded on
the basis of the caste considerations of the offender
and of the woman.
Yajnavalkya prescribes amercement (fine).
III. Punishment for abuse or contempt:
In abuse or contempt case every care was taken to
see that each higher caste got due respect from
persons of lower caste.
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Judicial systems in Indian Sub-continent: Ancient Period
Hindu Period: Ancient Judicial System
A Kshatriya abusing or defaming a Brahmin was to
be punished with 100 panas (copper coin) and a
Vaisya abusing or defaming a Brahmin was to be
punished with 150 panas.
A Sudra abusing or defaming a Brahmin was to be
punished was punished by corporal punishment
(cutting off the tongue).
A Brahmin defaming a Kshatriya was to be fined
with 50 panas and a Brahmin defaming Vaisya was
to be fined with 25 or 12 panas.
IV. Punishment for Murder:
Early sutra prescribes that the murderer should pay
fine according to the caste of the person.
The Arthasastra prescribes death penalty for the
murder even if it occurred in quarrel or duel.
Form of Capital Punishment:
Capital punishment was given in varied form namely,
roasting alive, drowning, trampling by elephants, devouring by
dogs, cutting into pieces, impalement etc.
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