CS * ae

PART- I
FOR LAW STUDENTS -

__ H L V . S R E E N I V A S A M U R T H Y

NATIONAL LAW SCHOOL OF INDIA

BAR COUNCIL OF INDIA TRUST

EASTERN BOOK COMPANY

PRE-LAW EDUCATION SERIES. ... .5

HISTORY OF INDIA
PART-I
[From the earliest times to the
death of Aurangzeb]
FOR
LAW STUDENTS

by |
H.V. Sreenivasa Murthy
M.A., D.Phil.,
Retired Professor of History
Man,alore University

A PROJECT OF THE
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
IN ASSOCIATION WITH
BAR COUNCIL OF INDIA TRUST

fw i “ we

s.— on { 4
7 5 Re eTett
$s, f- ~.

Epic . BANGALORE-‘
a - ~ - 7 rm rr na
- g 4
~)
- e
r
’ : : Y he + a Js -

. :
—z — . +4
WY;
. ead PA
£0 te - bol” bh| oe

EASTERN BOOK COMPANY”

LUCKNOW
 yas i“ EASTERN BOOK COMPANY
Website : www.ebc-india.com
®
Lucknow : 54, Lalbagh, Lucknow-226 001
Phones: 0522-2626517, 2623171, +91-99350-96000
Fax: 0522-2624328; E-mail : [email protected]
we
New Delhi : 5-B, Atma Ram House, 5th Floor
t Toler Marg, Connaught Place,
ew Delhi—110 001
Ph. : 011-2375-2323, +91-98-7119-7119
Fax : 011-2375-2320; E-mail : [email protected]
&
Delhi : 1267, Kashmere Gate,
urchased: ae Old Bling u Sladeze Building,
. rae
pproval: Phores: 011-23917616
Aa
~ > 4 Telefax: 011-23921656
} Zz wv 0 bk E-mail : [email protected]
cc No.: e
: Manav Law House
; oP Johnson School,
tNarcyan Rao ahabad—211 001
National Law LPbsme; 32-2560710, 2422023
: 0532-2623584
Bangalore
1993 Edition
Reprinted, 1995
Reprinted, 1997
Reprinted, 2000
Reprinted, 2001
Reprinted, 2002
Reprinted, 2003
Reprinted, 2006
Rs. 135.00
ISBN-81—7012-944-3
All rights reserved. No part of this work may be copied, feAan adapted, abridged or
translated, stored in ‘.ny retrieval system, computer systern, photographic or other system or
transmitted in any form by any means whether electronic, mechanical, digital, optical,
photographic or otherwise without the prior written Eo teat of the copyright holders, EBC
pi og Meg Ltd., Lucknow. Any breach will entail legal action and prosecution without
rther notice.
While every effort has been made to avoid any mistake or omission, this publication is
being sold on the condition and understanding that neither the author nor the publishers or
printers would be liable in any manner to any person by reason ofany mistake or omission in
this publication or for any action taken or omitted to be taken or advice tendered or accepted on
the basis of this work. For any defect in printing or binding the publishers will be liable only to
replace the defective copy by another copy of this work then available.
All «.'sputes
will besubject tothejurisdiction
ofthecourts, tribunals and forums at Lucknow only.
ata Copyright © EBC PUBLISHING (P) LTD., LUCKNOW _
PUBLISHERS : EBC PUBLISHING (P) LTD,, 34-A, LALBAGH, LUCKNOW'—226 001
PRINTERS : UNITED BLOCK PRINTERS, G.B. MARG, LUCKNOW—226 019
 PREFACE

There are many standard works on both ancient and medie-

val India dealing with political and cultural aspects. There
hardly exists a text which can meet the particular requirements
of the students of Law. This book attempts to fill in this lacuna.
It is primarily designed to meet the demands of the students of
Law and to provide them with an appropriate historical back-
ground — political, socio-economic, law and legal institutions,
judicial organisation — for the study of Hindu and Muslim Law
in a better or truer perspective.
The project is the brain-child of Dr N.R. Madhava Menon,
Director, National Law School of India University. I express
my deep sense of gratitude to him for inviting me to prepare
the text. I am specially grateful to Ms V.S. Elizabeth, my former
student, and now Research Associate in National Law School
of India University for introducing me to the Director with con-
fidence, getting me the invitation to author the text, correcting
the typed script and arranging the bibliography.
My obligations are due to all earlier authors on the subject,
whom I have mentioned at every step and whose publications
I have made use of with great profit. |
My warm thanks are due to M/s Eastern Book Company,
Lucknow for the promptitude displayed in the execution and
completion of the work within a short time.
I welcome all suggestions for making the study more lively
and meaningful.

July, 1993 —H.V. Sreenivasa Murthy

Bangalore.

[ mI J
 INTRODUCTION

History is information. History is interpretation. History is

education and enlightenment. To the legal community, history
is the very process of understanding law in context. Without
history, law is a set of bare principles devoid of social meaning
and cultural orientation. It is in historical context, law assumes
the quality of life and evolves organic structures, developing
and changing to the needs of good governance. No wonder,
historical jurisprudence both as a method as well as a substan-
tive school of thought, captured the attention of scholars pur-
suing legal studies everywhere since long. Admittedly, history
is essential reading for every law student.
The importance of history has led to a variety of problems
too. Because history can be written from a variety of viewpoints
and the interpretations can be as varied as the authors choose
to have it, there have been a lot of differences and great deal
of disenchantment in the study of legal history. Students of law
look at history with a view to understand the nature of polity,
the development of freedom and human rights, the pattern of
administration of justice and the nature of legal and judicial
institutions. There are value assumptions and cultural impera-
tives implicit in the analysis of these aspects and unless the
historian is careful about them, there is likelihood of distortions
with dangerous consequences to society. This is all the more
true when the history relates to a pluralist society in colonial
domination. Therefore, when the Bar Council of India decided
to include History as compulsory subject in the five-year inte-
grated course in law, it was felt necessary to carefully develop
a syllabus keeping the interests of the law student in focus and
to assemble materials relevant to modern legal inquiry. When
the National Law School of India was set up by the Bar Council,
the task of preparing the manuscript on the history book was

[Iv]
 INTRODUCTION V

taken up by the NLSIU faculty in association with a distin-

guished professor of history. The present volume is the product
of this initiative. It is expected to be improved in the course of
its use in the classroom so that a new edition truly fulfilling
the needs of law students may be brought out in the course of
the next few years.

History is taught at the National Law School in three cours-

es. This volume is prepared keeping in view the requirements
of History-I. The History-II course relates to the study of the
British period which has substantially changed the nature and
style of governance in the Indian sub-continent obliterating in
the process many indigenous customs and legal structures. The
English Common Law and English parliamentary institutions
have been extensively developed over a period of two centuries
with such modifications that the country’s Freedom Movement
dictated. It is this crucial phase of Indian legal, constitutional
and political development that History-I], currently in prepara-
tion, will deal with. Together, these two volumes, it is hoped,
will serve the needs of the law student in understanding legal
institutions and processes as they obtain today.

The National Law School and the law-teaching community

are thankful to the Bar Council of India Trust for their thought-
ful initiative in commissioning the project of student materials
on law-related social science subjects. It is a great privilege for
the National Law School as a “‘pace-setter in legal education
reforms’’ to have been asked to coordinate the project on behalf
of the Trust. Till date, we have been successful in bringing out
as many as five titles in the so-called Pre-Law Series. We hope
to complete the series by the academic year 1994-95. We thank
Professor Sreenivasa Murthy for patiently interacting with the
National Law School faculty and for having responded to the
needs of teaching history to law students.
VI HISTORY FOR LAW STUDENTS

We record our deep appreciation and thanks to the proprie-

tors of the Eastern Book Co., Lucknow who waited so long for
the manuscript and have done a quick and commendable job in
bringing out the book in a very short time. Few law publishers
in the country have shown genuine concern for the improvement
of legal education by bringing out standard textbooks at affor-
dable prices. In this regard, the example of Eastern Book Co.,
deserves appreciation.

Bangalore N. R. MADHAVA MENON

15th October, 1993 Director
National Law School of India
 CONTENTS
Pages
PREFACE II]
INTRODUCTION IV-VI

CHAPTERI

History and Its Territory

The Subject-Matter of History
The Knowability of the Past
History and Antiquarianism
History as a Living Subject
Purpose of History
History and its Neighbours
History and Geography
History and Politics
History and Economics
History and Sociology
NE Other Disciplines
eae
ee
eS
History and Law
— Survey of India en
Ancient Periid nh
Forms of Historical Tradition
Medieval Period
Modern Period
Recent Trends Se
CHAPTERII
Polity in Ancient India
State Formation in Ancient India
Early Experiments:
The Tribal Polity in the Rig ais
Tribal Assemblies
Vidatha
Sabha
Samiti
Later Vedic Development

[ vu J
VIII HISTORY FOR LAW STUDENTS

Kingship
The Royal Function
Councillors and Officials
Oligarchies and Republics
ee
CHAPTERIII
State and Government in Ancient India — A survey
The Mauryan Polity
Polity in the post-Maurya par PS
The Satavahana Polity
The Kushana Polity
The Gupta Polity :
Structure of Polity between 700- 1200 A.D.
Quasi-Feudalism and Feudalism. .
Feudalism
Local Administration :
Working of the Mahasabha . .
CHAPTERIV

Social Organisation in Ancient India

The Varna System
Gotra and Pravara
Varna and Jati
The Untouchables eichaais .
The Family
The Asramas (the four stages ofLife)
aaa The System of Slavery
allt
aad
ihc
iall
Sadly
(CHAPTERY»
Status and Position of Women in Ancient India
The Status of Women
Education
Marriage
Forms of marriage
Age of Marriage —
Right of Property
 CONTENTS

Divorce
Prostitution
IDM
Widows

CHAPTER
VI

~ Economic Structure in Ancient India

Pastoralism
Peasant Phase
The Village
=
hy
Sw Agriculture and Stockbreeding
Origin and Types of Property
Urban Centres
Guilds
Trade and Finance
oN
DY Maritime Trade
CHAPTER VII

Legal System in Ancient India

Legal Literature
Role of the Smritikaras
Manu
Brihaspati
Yajnavalkya
Narada
Katyayana
The Sources of Law
The Concept of Dharma ;
Law-making and Law-interpreting Process
Law and Custom
me
A
SmaHuman Law and Divine Law
CHAPTER VIII
Administration of Justice in Ancient India
Judicial Institutions
Types of Courts 195
Courts of the Guilds 198
 HISTORY FOR LAW STUDENTS

Pages
Role of the Village Panchayats . 199
Initiation of the Procedures 200
The Trial 202
Witnesses 205
Pleaders 206
Secret Agents ; 207
Concluding stage of the Judicial Procedure . . 209
Punishments 210
The Role of the Judges 212
CHAPTERIX

Medieval India
The Rule of the Turko-Afghans and Mughals 216
The Government Set-up 218
Muslim Political Ideas 219
Pe
ee
NO
9 Administrative Apparatus 222
The Law of Succession 222
The Administrative Officers . . 223
Administrative Divisions 224
Reforms of Ala-ud-din Khilji 224
Market Regulations 226
Reforms of Muhammad-bin- Tughlag 227
Departmental Administration under the Mughals 228
Administrative Divisions 230
The Mansabdari System 232
Akbar’s Revenue Reforms 234
e CHAPTERX

Medieval Indian Society

Social Transformation 239
The Bhakti Movement 243
Social Reforms of Akbar 248
Se
=
wWNStatus and Position of Women . . 250
Hindu 250
Muslim 251
 CONTENTS XI

Pages
CHAPTER XI
Law and Legal Institutions and Judicial Organisations
1. Sources and Character of Muslim Law is = 256
2. Muslim Law and Non-Muslims . . a 259
Changes under Akbar - ae sii 260
3. Criminal Law and Punishment . . at 262
Salient features of Islamic Criminal — a 262
Judicial Organisation — a 266
4. The Royal Court ey ae a 268
5. The Chief Qazi = ist shadi A 270
6. Secular Courts as a eae 271
7 Panchayats = soe | 22
Defects in the Judicial Atgitntet nati ee: 2
8.
- .
Punishments
an 6: ;

9. Investigation Process

P PBR AG eae ee BRS — pe ri.

ae | eae
if at Ole
ea"
Aen
4
eit 2m
pe ash! nh the same tin : “adicaify dilferen flate i
:¥ ze 2 oa? TS ey¢< Jetils
,; Sartagt! ‘ :

Whaling 2 OPH yotiewing.

Pirresiat a pacer bclinae,
a
'? sf nm '
se le ws bs rt pope:
 hnigen? inset
sie ik) TT:

Ee ~110%5

wal. asian 2a

(aruba Wik emer 7 F

te Layette: 3 “SIMA As us Bhat vse,

styiisoryO Aneel
 Chapter I

History and its Territory

History, though as a discipline is a very recent phenomenon, as an

essential facet of human experience, has gained a status of prominence
among the different branches of intellectual activity. History is also one of
the most taxing of intellectual disciplines. Yet, of all the great branches of
human knowledge, history is that upon which most has been written, and
which has always been most popular. For, as Ranke has pointed out, history
is not simply an academic subject; as a repository of the knowledge of the
history of mankind history is the common property of mankind.! History is
one of the forms of disciplined research by means of which human mind
satisfies its inquisitiveness and orientates itself in the world. History is a
fascinating subject because of the role it plays as a meeting ground of
different disciplines.

1. The Subject-Matter of History

History has for its subject-matter everything that has come to pass. They
may either belong to the world of nature or the world of man. Man is at once
part of nature and at the same time radically different from the rest of nature.
Man presents himself for study as a conscious being— thinking, willing,
feeling, knowing, wishing, planning, hoping, believing and deciding. His
inner life finds inter expression in speech, writing, gesture and action. As Sir
Isaiah Berlin has put it: ““We understand human beings not merely as bodies
in space obeying causal laws, but as active beings, willing, creating,
pursuing ends, shaping their own and others’ lives, reflecting and imagining,
in constant interaction with human beings, engaged in all the forms of
experience....”* Hence history in a restricted sense, has for its subject the
human past or only human events like what men have said, thought, done or
suffered, or past experiences of men, or the memory of societies.
The study of history comprehends all human activities. That much
is commonplace. Some reservations have to be made. In the first
place not all the past is recoverable, and the study of history is necessarily

1. See Fritz Stern (ed.). The Varieties of History: Voltarie to the Present, pp. 61-62.
2. History and Theory, p. 24.

[1]
2 HISTORY FOR LAW STUDENTS [CHAP.

confined to that past of which evidence either survives or can be recon-

structed. While history may commonly be thought as the whole of mankind’s
past life, it is in truth equal only to the surviving past. In other words,
‘‘Historical study is not the study of the past but the study of the present
traces of the past’’. In the words of Barraclough, history connotes ‘‘the
attempt to discover on the basis of fragmentary evidence the significant
things about the past’’.* If men have said, thought, done or suffered anything
of which nothing any longer exists those things are as though they had never
been. The crucial element is the present evidence, not the fact of past ex-
istence, and questions for those for which no material exists. This limitation
remains important especially in practice.
History, then in’ both the senses of the word — the original Greek
meaning ‘inquiry’, ‘investigation’, ‘research’ conducted by the historian and
the evidences or traces of the past into which he enquires — is a social
process in which individuals are engaged as social beings. The past becomes
intelligible only in the light of the present and the present can be fully
understood only in the light of the past. R.G. Collingwood says much the
same thing when he tells that ‘‘knowing yourself means knowing what you
can do; since nobody knows what he can be until he tries, the only clue to
what man can do is what man has done’’.* To quote Dewey: ‘‘Piety to the
past is not for its own sake nor for the sake of the past, but for the sake of
a present so secure and enriched, that it will create a better future.’’> History,
thus, performs dual function: it enables man to understand the society of the
past and it increases his mastery over the society of the present. History as
past actuality is conditioned by our knowledge of the world in which we
live.
The historian cannot set his interest in the past in a fixed direction.
His focus of attention changes from time to time, from one class of his-
torical facts to another. Also, the practical problems that confront any
society change constantly. The form and content of history become dif-
ferent according to the methods and sources available to different gener-
ations. As a servant of human society the historian has to meet the
demands, the urges and the aspirations of his readers. What seems sig-
nificant and important to one age or one generation may not seem so to
another. ‘“The re-reading of the past must therefore be a continuing pro-
cess’’.© As Bauer aptly puts it: ‘‘Every age has its own peculiar concep

3. History in a Changing World, pp. 29-30.

4. The Idea of History, p. 10.
5. Human Nature and Conduct, an Introduction to Social Psychology, p. 21.
6. Irfan Habib, Interpreting Indian History, p. 5.
1) HISTORY AND ITS TERRITORY 3

tion of the essence and the tasks of history.’’’ Hence every age or every
generation must have its history. E.H. Carr means the same when he
defines history as ‘‘an unending dialogue between the present and the
past’’.* The dialogue enables the historian to discern in a civilization its
capacity ‘to permit and tolerate change’ and to know the tremendous
capacities of a society for cultural development. For, ‘‘the perfection of
the historical science in a society is an index of its progress towards a collective
consciousness, towards a fuller attainment of its conscious capacity to act, just
as an individual who is able to assess accurately his experience of yesterday
has a greater capacity to plan his action for tomorrow’’.” It is also essential
for man to have an awareness of his past experiences and also their ‘‘infinite
richness and variety — in art and science as well as social organisation and
politics — of his past. That richness and variety is the subject-matter of
history’’.'!° To put it differently, the human being is the subject of history while
the forces that shape his experience are its predicates.

2. The Knowability of the Past

Historical knowledge is essentially an indirect knowledge. The historian
cannot have a direct knowledge of past events, or as Collingwood puts it:
“The past is never a given fact which he (the historian) can comprehend
empirically by perception.’’!' History is not a deductive science, but an ac-
tivity and a craft. The historian proceeds from the known to the unknown.
The events that happened in the past can be empirically known by the study
of the ‘relics’ or ‘traces’ left behind by them. They constitute the sources,
the basic raw material with which the historian works. The source gives us
knowledge and there is unanimity among the historians when they say ‘we
obtain our knowledge from historical sources’, and ‘History as a subject of
study is more or less completely at the mercy of sources’.
The first task of the historian is to search for and collect the sources
(Heuristics) and to discover and set forth facts of history. History is a humane
study and since its central object is the study of man, it deals with physical
facts only in so far as they affect human life. It is the essential function of
history to show what man is and the methods of understanding human
beings are relevant to it. Thus the facts recorded in history are recorded
by men. Viewed a right, the fact implies a relationship with the life of
Society.

7. Revolt of the Netherlands, p. 17.

8. What is History? (1964) p. 30.
9. Irfan Habib, op. cit., p 30.
10. Arthur Marwick., The Nature of History, p. 19.
11. The Idea of History, p. 282.
4 HISTORY FOR LAW STUDENTS [CHAP.

What then is a historical fact? All that has to do with the life of man
in the past — any act or event, the emotions expressed by them and the
ideal entertained by them. The affirmation of the event with the help of the
auxiliary sciences of history — chronology, paleography, diplomatic,
sigillography, epigraphy, numismatics, archaeology and philology — that
constitutes the historical fact. Where is the historical fact? It is in someone’s
mind. We say that Mahatma Gandhi was assassinated on January 31, 1948
is a historical fact. We won’t say that it was a historical fact. Because, it
was an actual event, but now it is a historical fact. Though the event has
passed, it becomes historical fact when someone brings it alive in our minds
by means of images or ideas of the actual occurrence.
It has to be admitted that it is beyond the possibility of the historian to
present any actual event, even the simplest, in its entirety. The historians of
the nineteenth century held the view that history consists of the compilation
of a maximum number of irrefutable and objective facts. And the scientific
historian would ‘‘present all facts and let them speak for themselves’’. It is
an error to suppose that the historian can explain all by confining his interest
to what happened. He cannot assume that all the answers are contained
within the facts. There are facts which are not causes and causes which are
not facts. There are significant facts which need to be turned into facts of
history and some insignificant facts to be discarded as unhistorical. Mere
presentation of all facts would result in the production of ‘dry-as-dust factual
histories’. Ranke’s insistence on allowing the facts to speak for themselves
has been rightly questioned by historians who have suggested correctives to
his ‘historicism’.
As one has aptly remarked: ‘‘Be not like the empiric ant which merely
collects, nor like the cobweb — weaving theorists who do not spin webs
from their own intestines; but imitate the bees which both collect and
fashion.’’ Otherwise, the role of the historian is limited to lending the
sensitive plate of his mind upon which objective facts would repeat their
own unimpeachable meaning. What is vital to research and to history is
interpretation. The ‘‘fact is like a sack — it won’t stand up till you have
put something in it’’.'? The event itself, the facts, do not say anything, do
not impose any meaning. It is the historian who speaks, who imposes a
meaning. ‘“The facts are really not at all like fish on the fishmonger’s slab.
They are like fish swimming about in a vast and sometimes inaccessible
ocean; and what the historian catches will depend, partly on chance, but
mainly on what part of the ocean he chooses to fish in and what tackle he

12. What is History?, p. 11.

[] HISTORY AND ITS TERRITORY 5

chooses to use — these two factors being, of course, determined by the kind
of fish he wants to catch. By and large, the historian will get the kind of
facts he wants’’.!4
The historian cannot set his interest in the past in a fixed direction. His
attention changes from time to time. Necessarily, therefore, he selects the
facts. By the imaginative understanding of what goes on in the minds of the
people of his concern he is able to discern the hidden forces of change. Of
course, the personal equation cannot be eliminated, in the sense he tries to
understand the past ‘only through the eyes of the present’. As a writer points
out, ““We build our conception of history partly out of our present needs
and purpose. The past is a kind of screen upon which we project our vision
of the future. It is a moving picture borrowing much of its form and colour
from our fears and aspirations.’’ This is what Jacob Burkhardt meant when
he spoke of contemplation, ‘the capacity to see the present lying in the past’.
The selection and ordering of facts as well as their interpretation is the main
business of the historian. Hence the statement: ‘‘The historian and the facts
of history are necessary to one another. The historian without his facts is
rootless and futile; the facts without their historian are dead and
meanings.’’!4

3. History and Antiquarianism

An antiquarian merely collects antiquities and does very little to explain
on the basis of his collection the sense of human development and change.
History is not mere antiquarianism or a antiquarian chronicle and ‘not
fact-grubbing’, but at its highest, history must be interpretation. Indeed, in-
terpretation is the life-blood of history. The duty of the historian to respect
his facts is not exhausted by the obligation to see that his facts are accurate.
He must seek to bring into the picture all known or knowable facts relevant,
in One sense or another, to the theme on which he is engaged and to the
interpretation proposed.'® Historian has to go beyond Ranke’s precept that
‘the strict presentation of facts is the supreme law of historical writing’.
History as a humane subject owes its title to existence to the interest and
comprehension of the laity. It exists primarily not for the training of pro-
fessionals or for teaching by professionals to professionals from generation
to generation, but for the education of the lay men.'® By an imaginative
understanding of the past in terms of the institutions then prevalent, the ideas

13. Ibid, p. 23.

14. Ibid, p. 30.
15. Ibid, p. 28.
16. Hugh Llyod et. al, History and Imagination — Essays in the Honour of H.R.
Trevor Roper, pp. 7-8.
6 HISTORY FOR LAW STUDENTS [CHAP.

which animated the people who lived in it, and the purposes which were
then pursued the historian must make the events more intelligible and
meaningful. Antiquarianism chills history. History is not a mere accumulation
of facts. It is concerned with the understanding of human actions and their
results and discerning the hidden forces of change.

4. History as a Living Subject

History, it may be repeated, is concerned with human beings and the
human world, The human world is permeated with meaning. The historian
must grasp the meaning and present in a clearer, more comprehensible and
more interesting way to the intelligent laity. History is not an exact
science and the professionals attempts at a more perfect knowledge have
made history beyond lay comprehension. History concerns itself with all
facets of human societies and the historians see history against the back-
ground of the current of events. Necessarily, therefore, it has to explain
the current problems, ‘to give to those problems a philosophical context,
a continuum in which they may be reduced to proportion and perhaps made
intelligible’.'’ If history is to be kept alive the historian requires imagination
to grasp the reality of a situation and to explain the happenings with vari-
ations of details. EH. Carr viewed History as ‘‘the record of what people
did, not of what they failed to do....’’!® He thought, ‘‘The only proper way
to the historian is to write as if what has happened was in fact bound to
happen, and as if it was his business simply to explain what happened and
why.’’!? It is not possible to explain what happened and why satisfactorily
if we fail to ‘consider the alternatives, the total patterns of forces whose
pressure created the event’. According to Trevor Roper, ‘‘If we are to study
history as a living subject, not merely as a coloured pageant... or a dogmatic
scheme we must not indeed loose ourselves in barren speculation.... History
is not merely what happened: it is what happened in the context of what
might have happened. Therefore it must incorporate, as a n2cessary element,
the alternatives, the might have beens.’’° He argues that it would be difficult
for the historian to ‘explain all by confining his interest to what happened’,
for, it is difficult to assume ‘that all answers are contained within the facts’.
The alternatives enable the historian to recapture ‘‘those ‘lost moments’,
those historical conjectures in which great aspirations seem to be realised,
only to be overtaken — perhaps not inevitably, perhaps through accident

17. Ibid, pp. 358-359.

18. What is History? p. 126.
19. Hugh Lloyd, op. cit., p. 363.
20. Ibid, p. 364.
I] HISTORY AND ITS TERRITORY 7

or human folly — by a very different reality’’.*! A comparison with events

that have happened — say wars or revolutions — with those that have not
happened even ‘when similar circumstances and similar forces existed’
would give a better insight to the historian to ‘restore to the past its lost
uncertainties, to reopen...the doors which the fait accompli has closed’, and
enables him to keep history alive, interesting, instructive, and meaningful.

5. Purpose of History
H.P. Rickman who focussed his attention a bit closely on the question
of the purpose of history has said that man strives for knowledge for its
own sake and, therefore, historical research needs as little justification in
terms of its practical uses as physics does in terms of its technological ap-
plications. Yet, every class of knowledge is the knowledge of something
and throws a beam of light on a particular sphere of reality. To ask, therefore,
about the purpose, or use, or function of a discipline is to ask about the area
it illuminates. In this sense history certainly has its purpose.
The avowed purpose of history is to help us, first of all, to understand
the society of which we are members, the tradition to which we are heirs,
the institutions which we serve, the laws that we obey — in fact the world
we live in — by tracing the way in which the past has brought about the
present. The present is the child of the past and in a way the past itself. It
is the purpose of history to treat past happenings as precedents for actions,
individual or social.
The classic statement of it is by Lord Bolingbroke, who, however, said
he merely quoted from Dionysius, that ‘‘History is philosophy teaching by
examples.’’ This backward glance helps us to gain a critical attitude towards
our own civilization. The most important function of history is to illuminate
human nature. The story of man’s actions in time reveals the range of his
potentialities and thus teaches us what man is. By fulfilling these functions,
history widens our horizon and provides a liberal education.
History is often described as the record of man’s steps and slips. It
shows us that the steps have been slow and light; the slips, quick and abound-
ing. It provides us with the opportunity to profit by the ‘stumbles and tum-
bles’ of our ancestors. Awareness of our limitations should make us chary
of condemning those who made the mistakes; but we condemn ourselves if
we fail to recognise mistakes. But the exponents of ‘New History’ are sceptic
about the didactic value of history. According to Henry Elmer Barness: ‘“The
chief lesson of the newer history would seem to be that, the main purpose

21. Ibid, p. 365.

8 HISTORY FOR LAW STUDENTS [CHAP.

of studying the past is to loose our reverence for it, though not of course
our interest in it.’’ In the words of J.H. Robinson: ‘‘History, if we are to
have a comprehensive grasp of it, would function in the role of a teacher
not by furnishing us with precedents of conduct, by enabling us to base
conduct upon a perfect comprehensive of existing conditions founded upon
a perfect knowledge of the past.’’ It may be reasonably maintained that the
knowledge of past situation does enable one to cope up with a similar situ-
ation in the present. For Polybius, history is worth studying not because it
is scientifically true or demonstrative, but because it is a school and training
ground for political life. What we learn from the tragedies of its heroes is
not to avoid such tragedies in our own lives, but to bear them bravely when
fortune brings them.
The popular saying that history never repeats itself is sometimes given
as a reason for holding that we cannot draw lessons from it. It is true that
history does not repeat in exact detail because they are never the same per-
sons, the same situations with precisely the same characters again. But a
situation of today may resemble one of yesterday closely enough to make
one’s experience, direct or indirect, of the former, a guide to proper handling
of the latter. Over and over again one notices in the history of revolutions
the same kind of crisis crop up a situation with very much the same elements
constituting it, whether in England of 1640’s, France of 1780’s or Russia
of 1917. One sees that neither Charles I, nor Louis XVI nor Nicholas II
understood the situation. The old regime handled the situation badly and the
situation got out of hand in much the same manner. In this sense, history
repeats itself.
An understanding of the present is solely dependent on the knowledge
of the past. Experiences kept in the mind is an indispensable guide to correct
personal conduct in the present. As Will Durant remarks: ‘‘A nation’s past
is like an individual’s memory; if memory goes, sanity goes with it.’ What
memory does for the individual, by the same token, history, the social mem-
ory does for the community and for the individual also. ‘‘As a man without
memory and self-knowledge is a man adrift, so a society without memory
(or more correctly, without recollection) and self-knowledge would be a
society adrift’’.2* Besides to understand a man, you must know his memories.
The same is true of a nation’’.”’ History is the necessary recollection of the
past activities of men and societies which makes it possible for the individual
and the societies to orientate themselves amid the bewildering currents of

22. Arthur Marwick, op. cit., p 13.

23. Anthony Quayle on ‘‘The Heart of the Dragon’’, South Carolina ETV quoted in
Readers’ Digest, April 1993.
1} HISTORY AND ITS TERRITORY 9

human diversity. Those who ignore history, said Levi Strauss, condemn
themselves to not knowing the present, because historical developments
alone permits us to weigh and to evaluate in their respective relations the
elements of the present.”* Cicero puts it even more neatly: ‘‘Not to know
what took place before you were born is to remain for ever a child.’’ History
is necessary as it meets a basic instinct and need of men living in society.
It breaks down the barriers of time and extends the limits of human con-
sciousness beyond the span of single life.
It is worthy of note here that the notion that historical events are unique
is far from the truth. What is however true is that most practical men habitually
act On what is no mere quibble to call historical uniformities. They make
mistakes, if they act as if their experience gave them absolute uniformities,
they make grave mistakes. But they would make even graver mistakes if
they assumed that each problem they faced was wholly unique and un-
precedented.
History teaches us innumerable lessons of all kinds, personal as well as
social, and is indeed, a storehouse of lessons. This was the belief in classical
antiquity and it held the knowledge of the past as the sovereign corrective
of human nature. The historians of ancient Greece and Rome laid greater
emphasis on the didactive value of history by highlighting the idea of utility
and what is obviously the rational object of history. According to Thu-
cydides, history enables us to cope successfully with current problems in
the light of records of the past, in the event of a circumstance repeating
itself. Historians have discovered the secret of imparting the fruits, without
the perils of experience, and therefore have knowledge of inestimable value
to offer to the readers of their works. Toil and danger are the price of the
practical wisdom which is brought by the experience of daily life. But history
is able to instruct without inflicting pain by affording an insight into the
failures and successes of others. Sir Charles Fifth tells us: ‘‘Not only it is
a branch of learning to be studied for its own sake, but a kind of knowledge
which is useful to men in daily life,’’ and he quotes Sir Walter Raleigh,
‘‘The end and scope of all history being to teach by examples of times past
such wisdom as may guide our desires and actions.’ This is that makes
Bacon say ‘‘Histories make men wise,’’ a more favourable judgment of both
history and mankind.
History is a subject that rids of illusions, one in which we grow up and
become adult. The one depressing thought is that how little people draw the
moral lessons we might from history. It is like the over pessimistic dictum

24. Ibid, p. 13.

10 HISTORY FOR LAW STUDENTS [CHAP.

of Hegal — ‘‘The one thing that one learns anything from history is that
nobody even learns anything from history... peoples and governments never
have learned anything from history, or acted on principles deduced from
it.” Yet, we may learn so much as in history a great volume of vicarious
experience is unrolled for our instruction so that we can avoid going through
it all over again in ignorance and often suffering. The knowledge of what
happened, the record of truths revealed by experience, is supremely practical
as an instrument of action and ‘a power that goes to the making of the
future. Considered in their application to practice, the lessons of history have
a real value not only to the student but also the statement’.
History is the universal teacher of mankind teaching us what we should
do and what we should avoid, pointing to morals, and distinguishing between
good and bad. The greatest teaching of history is the same as the teaching
of philosophy and the teaching of science, namely that truth is supreme,
whereas science merely indicates what is true and what is its opposite, it is
philosophy and history that present the cultivation of truth as a duty. ‘For
the old one she is nurse and an unbroken reed; for the young she is an
admirable and supremely intelligent tutor, who powers the head of youth
with the learnings of experience and thus anticipates the gradual knowledge
that comes by time’. Quite simply, human society requires history; the soph-
isticated societies of our time require a lot of history. It is the broadest of
studies, embracing every aspect of life. It lays the foundation of education
by showing how mankind repeats its errors and what these errors are. We
are all constantly calling upon history while constantly making historical
judgments. History is a participant in man’s struggle to understand his en-
vironment, physical, temporal and social. Therefore, ‘history shares in the
general justification which attaches to all intellectual activity designed to
further human knowledge’.

6. History and its Neighbours

_ History is a fascinating subject because it happens to be the meeting
ground for different disciplines. Everything has a history and therefore his-
tory as a discipline covers everything. It is basic to social sciences in the
way that mathematics is to the physical sciences. In the words of C.L.N.
Brooke, ‘‘History unfolds not one but many different forms of thought. At
One extreme historians amass and analyse evidence, very much like a de-
scriptive science — and so gain an uneasy respectability from the kindlier
logical positivists; at the other extreme, we analyse the play of human per-
sonality and all the subtleties of the human mind, and so mingle with literary
criticism. History is not a separate mode of thought, but the common home
of many interests and techniques and traditions, devised by those who have
1} HISTORY AND ITS TERRITORY 1]

dedicated their best energies to the study of the past.’’ To this Stuart Hughes
adds, history has always thought of itself as ‘an inclusive, a mediating dis-
cipline’. Having formally ‘linked philosophy with poetry, it now links ‘lit-
erature with social science’.» History maintains contact with social sciences.
History, Economics and Sociology concern themselves with man and his
activities in society and hence they stand closer to each other. In spite of
the functional differences, each discipline makes useful borrowing from other
disciplines. There is much give and take between history and other sciences,
though no one is a slave or master of the other. Of no subject is this more
true than history; and we may now trace history’s vital contact with the
social sciences, the neighbours of history.

7. History and Geography

The oft quoted view of Richard Hakluyat that ‘‘Geography and chro-
nology are the Sun and the Moon, the right eye and the left eye of history,”’
brings out the venerable tie that history has with geography. Geology gives
us the geographic key to history by revealing changes in the earth’s surface
which have determined the sources of man’s food and habitation. Necessarily
therefore, history has to be set within the appropriate geographical context.
Polybius predicated the knowledge of geography as a prerequisite for the
historian. For, ‘‘we mortals have an irresistible tendency to yield to climatic
influences; and to this cause, and no other, may be traced the great distinc-
tions which prevail amongst us in character, physical formation and com-
plexion, as well as in most of our habits varying with nationality and wide
local separation’’. Michelet felt similarly when he wrote, history, in essence,
was founded upon geography. Continuing he says: ‘‘Without a geographical
basis, the people, the makers of history seem to be walking on air, as in
those Chinese pictures where the ground is wanting. The soil, too, must not
be looked upon only as the scene of action. Its influence appears in a hundred
ways, such as food, climate, etc.’’ Marc Bloch has noted that: ‘‘In order to
interpret the rare documents which permit us to fathom its misty, beginnings,
in order to ask the right questions, even in order to know what we are talking
about, it was necessary to fulfil a primary condition: that of observing and
analysing our present landscape. For it also furnishes those comprehensive
vistas without which it was impossible to begin.”’
It has now been recognised that man is not a disembodied spirit and
though he feels strange in this world, the fact remains that he depends upon
all the forces of nature. Also, where the climate of a country changes, the
population and character of its life changes. Yet we have to guard against

25. Ibid, p. 18.

12 HISTORY FOR LAW STUDENTS [CHAP.

hasty inferences. Because, few of common geographic generalisations can

survive critical scrutiny. While geography is itself not a sufficient cause or
explanation, it is not possible to understand the life of any people apart from
its geographic setting. Perhaps J.R. Green had this in mind when he called
landscape ‘the fullest and most certain of all documents’. Some geographic
factors are certainly necessary for civilisation, but no one of those can be
said to be sufficient cause for the changes in civilization which are the
subject of history. The fact that the materials and resources of nature as well
as the conditions of organic life shape or mould man and his culture is a
matter of commonsense. But many historians are not in agreement with the
arguments of extreme materialism that all human events are brought about
by the material environment. The emphasis on the environment rests on the
fact that nothing is intelligible apart from other things which modify or
qualify it and give it scope for its manifestation or activity. Since history
takes only a microscopic view of human events, the historian has to be
always on the alert to discern pervasive factors that affect great sections of
humanity over considerable periods. These, indeed, are the factors of man’s
physical environment. The basic factors of climate, topography and natural
resources cannot explain the differences and the interrelations of men who
live within a given environment. This explains why in social studies they
are relegated to a secondary role. If we direct our studies to those differences
and interrelationships, they become more and more significant as our frame
of reference expands to cover the differences and interrelations of people
living under diverse physical conditions. The historian can make effective
use of geography, climatology, soil chemistry, geology and other terrestrial
sciences only as he links them with the distinctive materials of economics,
sociology and other social sciences. It is only in the interaction of man and
his environment that the basic elements of history can be found.
The view that men are a product of their environment tells only a half
truth. What is however true is that men choose, mould, develop and modify
the environment in which they live and work. We have to view all of man’s
life this way. It follows from this that we reflect the term environment always
referring to a body of facts relative to a particular focus or perspective. ‘*To
say that anything is determined by its environment is to say only that in
order to explain anything we must look to its relations with other things,
which amounts to an undeniable tontology’’. The crucial fact is that the
environment of every human being and the context of every human act
contained human and non-human elements intertwined inextricably.
 1} HISTORY AND ITS TERRITORY 13

This is not to deny the importance of geography to history. It is indis-

pensable because an event that is not situated in space is as difficult to
incorporate in a story as one that is not situated in time.

8. History and Politics

In the past, politics and ethics were a fundamental study, while history
was only a subsidiary branch of knowledge, regarded as a record of isolated
chronological facts. Now, history is looked upon as an authentic record of
the rationalised experience of mankind and the historians claim for history
what is claimed for philosophy, that is the unifier of all knowledge and a
quintessence of human wisdom. Being comprehensive enough, history in-
cludes all aspects of the life of the human community and hence historical
study forms the best introduction to the study of human nature in different
ages.
It was believed, and this belief persists even at present, that history was
the school of politics; one reads it in order to discover rules by which the
statesman is to guide his course; and any part of history which does not
encourage the formation of such rules is not worth study. Precisely for this
reason histories of Greece and Rome were regarded as valuable. A mere
knowledge of the facts is meaningless. Not until the historian sits down and
draws valid political conclusions from the collected facts can he be said to
have become in the true sense an historian.
‘History is politics teaching by examples’. Thurcydides, who was the
founder of ‘political’ history in the special sense in which we are accustomed
to use the term, wished to convey political instructions to his readers. History
deals with human affairs and shows how their own actions and character
determine their base, though the natural cause of things may always be dis-
torted by that mysterious chance which constantly sends the best laid
schemes agley. On the whole, the wisely guided state will succeed. Thur-
cydides, without hazarding a comment, limits the term ‘history’ to cover
merely political and military affairs. For centuries historians neglected the
common people. Voltaire, Guizot, Augustin Thierry, Macaulay, Dryson, and
Ranke showed interest in political history. Ranke spoke of states as ‘thoughts
of god’ and gave history a firm orientation towards ‘past politics’ and the
relations between states. G.N. Clark thinks that political history still deserves
its central position because ‘‘it is in public institutions that men express their
14 HISTORY FOR LAW STUDENTS [CHAP.

will to control events’’, and therefore, he says, “‘it seems to me that histo-
rians will go wrong if they try to resolve political and constitutional history
into other elements’’.*°
It is true that history furnishes to politics the materials for comparison
and induction. While history furnishes much of the data for politics, it is
inappropriate to say: ‘‘History is past politics and politics is present history.’’
The same is true of the statement of J.R. Seeley: “‘History without political
science has no fruit; political science without history has no root.’’ Lord
Acton says that ‘“The science of politics is the one science that is deposited
by the stream of history like grains of gold in the sands of a river.’’ The
river itself is history. Seeley and his adherents were wrong in their assump-
tion that teaching politics is the sole duty of history. History must not be
confined to this sphere only, however, closely the subjects of which it treats
may be linked with politics. In addition to politics, history concerns with
sociological, educational, economic and religious questions. The new science
of numismatics, anthropology and archaeology have not only enriched his-
torical study, but have claimed to be subjects of history themselves. There-
fore, history is no longer an affair of a single man. As for its relations with
politics we may say: to the political scientists, ““History is data to be used
in sounding the depths of political problems,”’ to the historian, “‘the data of
politics is part of the development and treatment of historical issues’’.

9. History and Economics

It was only at the end of the last century the impact of specialised
economics on the study of history was strongly felt. This was due to the
recognition of economics as a main factor in the explanation of great social
and political movements. This is not to say that earlier histories neglected
economic facts. If economics is defined as ‘‘the science of something which
men actually do: even if the science did not exist, men would still make
economic decisions, economic predictions and participate in various forms
of economic organisation which, in part, is the economists’ function to de-
scribe’’. This apart, there were histories, even before, in which economic
facts were described. Such issues as the Peasants’ Revolt of 1381 and Eli-
zabethan Poor Law were subjected to close scrutiny by the historians. In
fact, the history of Turgot’s ministry is the history of sound economics struggling
with obstinate blindness. The errors of the Mercantile System were noticed and
explained with more or less lucidity. Otherwise it would not have been possible

26. Historical Scholarship, p. 18.

I} HISTORY AND ITS TERRITORY 15

‘for Adam Smith to write the Wealth of Nations without using historical
examples to confirm his theories’.
The economic forces were unquestionably at work much earlier, even
though their true significance might not have been everywhere understood.
With the growth of economic science a tendency appeared to trace whole
series Of events, which in the past had been either left unexplained or ac-
counted for on other grounds, to economic causes. Also there was a demand
to hear more about the peasants and workers, the common folk whose life
and work had been little chronicled so far. Economic history thus made its
appearances to recreate historical situations. In the beginning economic his-
tory concentrated on commercial and fiscal policies (political economy) and
later on the ‘economic factors’ in history, on ‘economic motives’ or on the
‘economic foundation as contrasted with the ‘superstructure’ of the socie-
ty’’. Economic choice forms the centre of economic history. It traces how
the food-gatherers of pre-historic time gave rise to agricultural age; the re-
quirements of agriculture prepared the way for some of the major problems
of history; land hunger made people seek land beyond the borders of the
empire and sprang much of the settlements of Western Europe. Economic
history showed how physical scarcities played their part in the Industrial
Revolution of the eighteenth century in England which was a decisive turn-
ing point in the European history as the adoption of village had been thou-
sands of years before. Gradual encroachments on land led to the discovery
of new raw materials like iron and coal and later the search for raw materials
and markets of finished products led to colonisation.
The historians did possess some basic knowledge of economics as the
subject was then understood. During the last two or three decades economic
theory has come to depend heavily on mathematics and as a result has
become much more complex. The historians, who were temporarily allergic
to making full use of the techniques and facilities of the statisticians, have
now begun to utilise the potentialities of this source to develop quantitative
history, ‘a type of economic history, itself only a part of the totality of
history’. |
Economic history, it is true, required a knowledge of economics for full
understanding of history. But important as economics is in human affairs,
it cannot be represented as practically the sole element of importance in the
march of humanity. Historian cannot be called upon to prove the validity
of economic theorems. The approaches of the two subjects are different.
They cannot usefully merge or lose sight of their functional differences as
‘disciplines of study’.“One cannot make a take-over bid for the other, or
dictate how it should carry out its investigations. Economics and history
16 HISTORY FOR LAW STUDENTS [CHAP.

may enter into a working partnership. ‘They can aid one another, they can
suggest fresh techniques, insights, modes of approach to fuller under-
standing’. Historian may approach the economist for certain intellectual
tools, concepts and categories which are necessary to his own work. But
history cannot become the handmaid of economic theory. ‘It may be salutary
for economists to learn more history, and it is certainly wise for historians
to learn more about economics’.

10. History and Sociology

Sociology is the science of society. It considers the individual as asso-
ciated with others as the member of a group, and as involved in social
relations. As a science, Sociology ‘‘attempts to account for the origin,
growth, structure and activities of society in general, by the operation of
physical and other causes working together in a process of evolution’’. It
also includes the systematic treatment of all those interests that arise from
the life of men in social aggregates. Defined thus, the subject-matter of
history and sociology is society or man in society, and the connection be-
tween the two disciplines springs from their common subject-matter. In fact,
Auguste Comte, the founder of Sociology, and Karl Marx, historian and
sociologist, have contributed much that is of value to the development of
historical studies. The difference between the two disciplines is one of ap-
proach. Henry Berr saw sociology as ‘primarily a study of what is social in
history’; its point of departure, he thought, ‘must be the concrete data of
history’.*’ In spite of differences in their approach there was ‘fruitful inter-
action between the two disciplines’.
The relation between history and sociology has not been that intimate
since late in the nineteenth century when sociology began to establish itself
as an autonomous discipline and when the historian and sociologist entered
into the study of society with set preoccupations. Historians had their own
vague and far from satisfactory social categories — peasants, workers,
middle classes, nobility — and were conditioned by these categories. The
sociologists had certain rigid and far from adequate patterns of history which
vitiated their approach to the past. Being fluid and formative in its own
development in the first half of this century, sociology was in no fit condition
to equip others with the well-tried and finely-tempered precision instruments
which some thought of them to possess. Historians distrusted the sociologists
as prone to be wild and vague pattern-makers, often entirely lacking the
historical attitude and only too rarely showing intellectual humility. Another

27. Arthur Marwick, op. cit., p. 122.

{| HISTORY AND ITS TERRITORY 17

development which distanced the historian from the sociologist was the trend
in sociological studies particularly after the First World War. The sociolog-
ists took up for detailed study ‘some very narrow area of human activity’
in which scientific element like sampling techniques and questionnaires
which minimised subjective influences are more pronounced. This was fol-
lowed by delimiting ‘the smaller and smaller areas of study; single educa-
tional institution, even small controlled groups of human beings’. Such
studies were termed by the historian as too narrow and not constituting the
whole of history. The differences between the two subjects are thus brought
in the classic statement of Henry Berr?*: ‘‘The historian must give some
attention to the individual peculiarities that make for the variations in history
and must explain even the most general transformations of societies. And
the more we study the most highly developed forms of societies, the more,
perhaps — at least up to a certain level of development — does the ‘indi-
vidual’ importance of what is distinctive grow, by very reason of the ad-
vancement of the societies.”’??
The knowledge about society cannot be integrated in terms of simple
laws and this was the ultimate and enduring obstacle to fruitful co-operation
between sociologist and historian in the wide plains of social history. The
historians’ conception of history was limited and this also worked against
their ready acceptance of the social approach. According to G.M. Trevelyan,
social history is ‘the history of a people with the politics left out’. Sir Lewis
Namier thought all ‘“‘human affairs being the subject-matter of history, all
human pursuits and disciplines in their social aspects enter into it’’.*° The
alternative to this kind was the more trivial and fragmented ‘history — of
everyday — things’ type of social history specialising in descriptions of
costume and furnishing, housing and recreations, food habits and pastimes
and so forth which was devoid of high intellectual contents. The problem
has been thus stated by S.W.F. Holloway: ‘‘The language in which history
is written is ordinary everyday language: and the type of explanations which
historians offer is the type of explanations which people offer in everyday
life. People in their daily life assume, without being aware of the fact, that
they already know the laws of human behaviour and social interaction. They
do not hesitate to offer explanations of why so-and-so has divorced for hus-
band, of why someone has failed at university, or of why someone else has
been so successful in business; nor do they refrain from enumerating the
causes of racial tension, of industrial conflict, or of Britain’s economic dif-

28. Quoted in Fritz Stern, op. cif., pp. 250-255.

29. English Social History, p. vii.
30. ‘History, its subject-matter and Tasks’ in History Today, Il (1952) p. 161.
18 HISTORY FOR LAW STUDENTS [CHAP.

ficulties. They do not stop for a moment to consider that these questions
might be problems for investigation for social scientists.’’*! There has been,
in the last one generation, an increased degree of precision in the writing
of history. Historians do now stop to consider the points raised by Holloway.
Historians have been increasingly making use of sociological and anthropo-
logical data in interpreting the past. Social historian has learnt to take his
society and try to see it whole. That is, in addition to studying the daily life
of its members, he concerns himself with society qua society, with social
activities and institutions as such, irrespective of their end or purpose.** The
works of the social scientist on ‘Economic Study of Institutions’, ‘Behaviour
of Man in Society’, ‘Occupational Groups in Society’ and ‘Study of Popu-
lation’ (Demography) are being fully utilised by the social historian. The
history of society keeps to the immediate goal, the understanding of the life
of men in the past, in its setting of society and institutions. History and
sociology are colleagues, partners, members of the same team. They cannot
neglect each other’s insights and expertise. If they do, sociology, deprived
of the temporal breadth and multiple sensibilities of the historian, becomes
historically parochial, restricting itself to such societies and institutions as
happen to have survived, without the means of knowing how they came to
survive; while the social historian, deprived of the heuristic depth and the-
oretical penetration of the sociologist, becomes academically superficial, an
antiquarian pursuit of facts in themselves, without the means of relating their
significance. Both study the society and they approach it from different di-
rections and for different purposes. The social historian confronts the same
material, may even borrow the sociologist’s techniques, but he asks different
questions, seeks a different end.*?

11. Other Disciplines

History’s relation with psychology and statistics has enabled the writing
of history with greater degree of precision. Psychology helps the historian
to analyse motives and actions of men and societies. Similarly, social psy-
chology provides a better insight to the historian to understand the role of
the crowds in revolutionary upheavals, effects of factory disciplines, social
consequences of the industrial revolution and so on. In recent years historians
have begun to make the fullest use of the techniques and facilities of the

31. W.H. Burston and D. Thompson (ed.), Studies in the Nature and Teaching of
History, pp. 8-9.
32. H.J. Perkin, Social History, pp. 55-56.
33. Ibid, p. 6. 7
1} HISTORY AND ITS TERRITORY 19

Statistics to discover actual figures, to count and qualify, of those participated

in an event.
Historical thinking enables us to understand man in the dimension of
time. In fact, no other discipline except history takes as its primary concern
the historicity of human existence. This explains why history occupies a
special position in the community of knowledge.
History does not exist in isolation, but maintains close ties with its
neighbours. It enlists their co-operation, both directly and indirectly in order
to make its unique contribution. Since the very beginning, long before the
historical thought assumed its modern form, it has drawn on ordinary ex-
perience and common sense knowledge. More recently historians have also
found the social sciences more useful. These disciplines do not confront the
historians as a hostile force, threatening him with extinction, but as potential
allies of proven value. History and social sciences are mutually dependent
on one another; they progress in parallel lines by a continual interchange of
services. The social sciences furnish a knowledge of the present required by
history for the purpose of making representations of facts and reasoning
from documents. History gives the information about evolutions which is
necessary in order to understand the present. Therefore, the historian neither
underestimates the achievements of social sciences nor ignores their findings.
Since they are divided by a fundamental difference in orientation, history
developed a distinctive approach of its own.

12. History and Law

Law is a “‘rule of life. It is founded on the dogmas and experiences of
life; and life’s dogmas and experiences are recorded in a vastly wider library
than the covers of the law books comprise’’. The well-being of humanity
depends upon order and progress, and order means, stability of social in-
stitutions which, if they are to endure, must be based on the supremacy of
rational law. The test of political progress of a state is therefore the predo-
minance of justice or Dharma which means respect for human personality,
and well-being and this means equality of all before law. Though law cannot
make all men equal yet if there is no restraining influence of law, there
would be anarchy and people would be flying at each other’s throat.
In primitive and modern societies law has always represented supreme
social force compelling obedience by communal disapprobation of its trans-
gressions. Forms of disapproval have varied from time to time and breaches
by habit and custom in the past were looked upon as frequent source of
calamities, not only to individuals but also to groups, and offenders were
20 HISTORY FOR LAW STUDENTS [CHAP.

segregated and propitiatory sacrifices were offered to gods. There is a body

of custom in all forms of modern societies too, that are regarded as binding
upon the whole body of persons, violation of which is visited by penalties
enforced by the authority of its members. When the community in a collec-
tive capacity commands or prohibits the performance of certain actions and
inflicts penalties for violation of custom, its will has not merely transmuted
the habits of individuals into custom of the community, but has also sanc-
tified it by force or the compulsive authority of the organised community.
Coercion does not provide a sanction so complete as to guarantee against
injury and loss and this sanction has to be supplemented by other restraints
based on personal recognition and public opinion, for, the authority of law
itself may be derived by divine source, by custom or by the fiat of some
human authority. Law, then, is a form of social force, an ordering and ad-
justing of human activity and relations, through the systematic application
of the force of the politically organised community. The aim of law is right
and justice and it may express canons for the guidance of men’s conduct
and may have reference also to the internal acts of will.
The great function of the law is “‘the maintenance of fundamental order
with which men will find security and the common conditions of opportunity,
and the adjustment of those conflicts of interest between individuals and
groups which they cannot settle for themselves or in settling which, they
encroach upon the interests of others’’. Spencer defined law as ‘‘mainly an
embodiment of ancestral injunctions’’. But he also recognised that legal in-
stitutions develop as other social institutions develop and that law is not
merely a body of formal rules possessing objective validity but is an institu-
tion the development of which is an inseparable part of the social process.
It follows from this, law is a body of principles applied by the courts
in the exercise of their jurisdiction, and its sources are custom, judicial con-
struction and precedent and legislative enactments. Custom was law, a re-
straining force and a bond of primitive society which did not possess a
strong, unifying coercive authority to enforce its authority. In spite of the
growth of laws in modern times, custom remains still as substratum, and its
judicial recognition provides for the legal regulation of social facts and cir-
cumstances which law cannot readily take cognizance of. New circumstances
and the influence of new considerations necessitate the modification of the
original authority. A statement made by a judge in the course of judgment
by way of explanation or illustration or general exposition of the law
becomes a precedent. Such obiter dicta have no binding force but are entitled
to respect. Often the principles so formulated in precedents may correspond
1] HISTORY AND ITS TERRITORY 21

to the clauses of a statute in enacted law. A statute enacted by legislature

aims emphatically at the formulation of legal rules in a definite manner.
Law has thus become an important instrument of progress. The habits
and customs of the people, their history and traditions, their qualities of
character and conduct, social life and religious beliefs are represented in the
law of the state. The knowledge of the sources of law and the way that the
present legal system has come to be evolved, which can be considered as
the essence of the subject-matter of legal history, connects history with law.
Just as the present is the daughter of yesterday, the past; the present legal
system is rooted in the past. Law is said to be a tool to prise open the mind
of man and the spirit of the nation of the period of study.
Legislation as a source of law is inseparable from a process of inter-
pretation by the courts. Some laws demand a literal interpretation; some are
concerned not merely with general principles of social order, intelligible to
every body, but with the regulation of some highly technical matter which
requires special knowledge. This demands the determination of the general
meaning of a clause and also the peculiar technical significance that the
legislatures intend to covey. In such cases there has to be a historical inter-
pretation, which, in turn, requires a thorough knowledge of historical back-
ground for the enactment. Law is primarily the mirror of active organic
political life of today, and it ought to be and often is instructed by the ethical
judgments of the community, though its own province is neither ethical nor
religious. Theories as to the origin and functions of the state, ideas as regards
the meaning and purpose of life, the sanctions by which social duties are
enforced in the community, various agencies through which justice is ad-
ministered, are some of the factors that have determined the nature of law
in history.
Some have argued, perhaps rightly, that the legal historian must be a
lawyer. The utilitarian connection between his subject and the law is as clear
as the daylight. Precedents play in the courts of law of most countries a part
to which it is entitled nowhere else, that of a norm that stands almost above
discussion. In Great Britain, where the memory of the law goes back further
than in any other country, the story of the enactments of Parliament and
their application by the courts of the Realm is a matter of considerable
practical importance as well as a subject asking for the most radical spe-
cialisation. Yet the legal historian must not exclusively dwell in a world of
his own; he cannot remain indifferent to the advance made by certain other
branches such as political, social and economic history.** Bereft of the

34. G.J. Renier, History, Its Purpose and Method, p. 61.

22 HISTORY FOR LAW STUDENTS [CHAP.

knowledge of history it may not be possible for the legal historian to get a
better look into issues involved necessitating enactment, which alone will
enable him to perceive its true import. Therefore, history and law are mu-
tually dependent on one another.

13. Survey of Indian Historiography

Ancient Period
Ancient Indians, it is maintained, possessed no historical sense. Though
they never neglected any aspect of human activity, one is in for disappoint-
ment when he comes to history as we understand it today. There are volu-
minous general and religious literature, but no literature which can be
described specially as historical writing in Indian tradition until the seventh
century A.D. There is no historical text in Sanskrit giving an accurate record
of past events either of the whole or parts of India. In this respect ancient
India stands in sharp contrast with ancient Greece and China. Greece pro-
duced Herodotus, the father of History, while the Chinese have traditionally
maintained chronicles of various dynasties and rulers.
The answer to the question whether the ancient Indians lacked historical
sense rests on the definition of a sense of history. “‘A sense of history’’,
writes Romila Thapar, ‘‘can be defined as a consciousness of past events,
which events are relevant to a particular society, seen in a chronological
framework and expressed in a form which meets the needs of that society’’.
If this can be accepted as a workable definition of history, then it follows
that the ancient Indians were not lacking in ideas of history. Such ideas in
an embryonic form are found in the existing literature. ‘“‘Every society has
a concept of its past and therefore no society can be called ahistorical’’.
They frequently recorded the historical tradition in a chronological order.
These records do not contain all the events, but only those events which the
society found most relevant and worthy of remembrance and the type of
events recorded determined the form of historical narration. This is particu-
larly true of Indian literature prior to seventh century A.D. It was not the
primary object of the historical tradition to keep a record of essential political
events and it was thought that this exercise was not relevant. ‘To this extent,
the form in which a sense of history was exercised in ancient India must
be judged by the literature of other ancient classical cultures. What is more
important is to try and understand what was regarded as relevant and why’.

Forms of Historical Tradition

The Sanskrit word /tihasa means ‘verily thus it happened’, ‘thus it was’,
‘so it has been’. By enlargement, the term came to include legend, history
1] HISTORY AND ITS TERRITORY 23

and accounts of events of the past, the ‘purpose being to relate to them the
goals and purpose of the Hindu tradition’. The earlier and the narrower
meaning as given by Brihaddevata was ‘ancient events’ (Puravritta). Itihasa
is defined by Kautilya as : **Purana (tales and anecdotes handed down from
old days or ancient lore), /tivritta (traditional account of men and things),
Akhyayika (biography or anecdotes and stories), udaharana (illustration),
Dharmasastra (relating to law) and Arthasastra (science of government and
wealth) are (known by the name) /tihasa.’’ (BK. I. ch. V. verse 24). Kautilya
gave a comprehensive meaning to the term /tihasa. It was said to comprise
almost all the topics concerning a man outside the sphere of religion. It
meant an account of historical persons and events as also of political, econ-
omic, social, religious and moral theories and traditions, legal usages and
institutions, in short of the entire civilisation. This comprehensive view of
history persisted for a long period. This is also indicated by two verses in
Jinasena’s Adipurana (9th century). ‘‘/tihas is a very desirable subject. Ac-
cording to tradition it relates what actually happened’’.
The historical traditions grew out of a variety of literary forms current
during the Vedic age. The most significant in the early Vedic age were the
gathas (songs) and narasamsi. There were three types of gathas viz., na-
rasamsigatha (songs extolling the heroic deeds of ancient rulers and sages),
Indrgathas (extolling the glorious deeds of Indra) and Yajnagathas (songs
relating to the performance of sacrifices in the past). Narasamsi means eu-
logies of heroes or hero-lauds in praise of celebrated men. They were intri-
cately interwoven with the event of the deceased fathers and related to things
and ideas associated with them. The poem later called the Ten Kings (Da-
sarajna) praises the brahamana minister Vasishta who guided his King Sudas
to victory over the Ten.
To the later Vedic age belongs the (gathas, narasamsi, akhyana (nar-
ratives), itihasa (history) and purana (old tale or ancient lore). The Brahmana
literature refers to many akhyanas. The Devasuram, an akhyana, relates to
war between gods (devas) and demons (asuras). The pariplavani (cycle)
was an akhyana consisting of a series of ten akhyanas relating to great
emperors to be recited during the year leading up to a horse sacrifice. Gener-
ally akhyana means a historical narrative and a distinction was maintained
between akhyana and itihasa which was latter absorbed in the /tihasa-Pu-
rana tradition. The puranas based on the collections of much earlier material,
diverse in form, consisting largely of traditional history and aspects of social
and religious life which was thought should be preserved.
24 HISTORY FOR LAW STUDENTS [CHAP.

The term akhyana later came to mean epic, as in the case of the Ma-
habharata in which they were inserted en bloc. “They were collected and
systematised in the framework of Vamsa and were utilised as Vamsanu-
charita. These ultimately created two massive traditions of /tihasa-Purana’.
The epics indirectly represent the transition from non-state to state. The
narrative sections of the Mahabharata picture the period before the emer-
gence of the state systems. The epics consider monarchy as the ideal system
and Rama ‘becomes the initiator of the epitome of the monarchical state in
the concept of Rama-rajya’. That it was a fully developed state becomes
evident from the ‘concentration of power in the king, an administrative hier-
archy, a Clearly defined territory with some notion of boundaries, a capital
in which the main action of the earlier section of the epic takes place, a
treasury, a regularly constituted army and a range of allies and foes’, all the
constituent elements of a modern state. It is contrasted with the non-state
of the raksasas. The didactic sections of the Mahabharata depict the post-
Vedic society. The performance of various forms of yagna remained the
major ritual and ‘a pastoral-cum-agrarian economy is evident with an em-
phasis on clan-holdings rather than private holdings’.
The historical tradition formed part of the ritualistic tradition in the
beginning as they had common authors in the priestly class. Later two tradi-
tions came into being; the religious poems formed the Rig Veda, while the
secular or historical tradition remained separate. Yet, there was mutual in-
fluence between the two, though they could not be united.
With the intensification of the genealogical aspect in the various Vam-
savalis a marked change is noticed in the idea of /tihasa and Purana. The
result was the emergence of a new class of historical writing, the historical
biographies composed by the court poets. Among such historical biographies
mention may be made of Harsacharita of Bana and Vikramankadevacharita
of Bihlhana, which maintained link with /tihasa-Purana tradition. But their
historical credibility remained doubtful.
Another class of historical literature which directly contributes to our
knowledge of history are the local chronicles. There are many sorts of
chronicles, some of them are more useful than others and all of them more
dependable in some parts than in others. The most celebrated among this
Class is the Rajatarangini (The River of Kings) of Kalhana. Written in 1148
A.D. it deals with the history of Kashmir from the legendary origin down
to the middle of the 12th century A.D. In the whole range of ancient lit-
eratures Rajatarangini is reckoned as a true historical work. Though it owes
a great deal to the /tihasa-Purana tradition, it nevertheless makes a departure
1| HISTORY AND ITS TERRITORY 25

from it. This departure is particularly seen in Kalhana’s highly developed,

almost modern, conception of the proper data or sources of history. Kalhana
made full use of earlier tradition, whether written or verbal and not being
satisfied, he consulted the original sources. ‘‘By the inspection’’, says he,
‘‘of ordinances (sasana) of former kings relating to religious foundations
and grants, laudatory inscriptions (prasasti-patta) as well as written records
(sastras), all wearisome error has been set at rest’’.
The first prerequisite of a true historian, according to Kalhana, was to
keep a detached mind, free from bias and prejudices. ‘‘A historian, like a
judge, must discard love (raga ) and hatred (dvesa) while recounting the
events of the past’’ and “‘such a writer alone deserves praise’’. The supreme
merit of Kalhana lies in his possessing a critical mind and a spirit of scep-
ticism. True, he supplemented the historical information with mythological
and legendary stories. Despite his efforts to be critical, he could not reject
everything which was normally accepted in his day. The objective of the
work is stated by him thus: ‘This saga which is properly made up should
be useful for kings as a stimulant or as a sedative, like a physic, according
to time and place.’’*°
J. Filliozat considers Rajatarangini as a solidly informed historical work
for the ancient period. It ‘‘ceases to be merely a chronicle of dry details
and faithfully presents the ebb and flow of national life, the periods of glory
and misery and the greatness and weakness of men and rulers — in short
all those minute details which make history a record of intense human in-
terest, faithfully portraying the march of events through which a people
works out its own destiny’’. It was a composition conforming to the rules
of learned poetry, in which the prevailing sentiment was the allaying of the
passions (santarasa) such as would be taught by the spectacle of the vi-
cissitudes of fortune. Romila Thapar who has made a detailed assessment
of the concepts of ancient historical traditions of India has suggested that
in discussing the historiography in ancient India a distinction has to be made
between the historical tradition (1.e. /tihasa-Purana) and historical literature
(i.e. historical biographies, family chronicles and regional histories). This is
necessary because the historical tradition often contains the core of historical
explanation. Implicit in the nature of historical explanation the notion of
time and the rule of man in shaping history. On the other hand, historical
literature show increasing interest in secular power. They are found to sac-
rifice historical veracity to dramatic analogies. Their main purpose is eulog-
istic and focus narrow.*°

35. Majumdar R.C. (ed.) The Vedic Age, p. SO.

36. Ancient Indian Social History — Some Interpretations, pp. 274-276.
26 HISTORY FOR LAW STUDENTS [CHAP.

Medieval Period
The tradition of medieval historiography developed in two streams —
Arab and Persian. The Arab tradition which reflected the Arab character
‘‘cherished democratic ideals and treated history as a biography of nations’’.
Arranged chronologically, they even chronicled the life of the common man.
The Arab historians never liked the idea of dedicating their work either to
rulers or the nobles. The Persian tradition, on the other hand, which was
inspired by monarchy and monarchical institutions, treated history as a bio-
graphy of kings. Their approach to history was centred around the kings and
their narration confined to the life of the king and his court, and the gov-
erning classes to the exclusion of the lay men.
During the Turko-Afghan rule in India, the Muslim historians adopted
Persian model, and the conspectus of history planned on the Persian model
had limited perspective. Since only a part of the historical literature of the
period have come down to us, the study of the elements of historiography
will be tentative. The surviving literature demonstrates that there was a de-
velopment both in form and technique. This is particularly discernible in the
works of Minhaj-us-Siraj and Ziauddin Barani. Minhaj in his Tabakat-i-Na-
siri, gives a general history of the Muslim world in addition to tracing the
history of the Delhi Sultanate up to 1267 A.D. Ziauddin Barani in his ‘‘Ta-
rikh-e-Firoz Shahi continued the history of the Delhi Sultanate from 1267
A.D. until the sixth regnal year of Firoz Shah Tughlaq. In his Fatawa-i-
Jahangiri Barani makes a distinct contribution to the political thinking of
the period. According to him “‘history is a science that requires no proofs
so long as the historian is a trustworthy person’’, that is a person of high
birth. He detested low born, Hindus and Muslims alike. He did not consider
history as a mere narration of events in a biographical setting, but a study
of the past for deriving lessons from it. ‘‘History is a report of the laudable
charity and malignity, justice and tyranny, worthy and unworthiness, laud-
able qualities and offensiveness, obedience and defiance, virtues and vices
(of people) of the past so that those who study it now take lessons from it
and are able to know the good and the bad aspects of government and good
as well as evil behaviour of people; from this knowledge they follow the
path of virtue and avoid that of vice’’.
The value of Barani as a historian lies in the interest he has shown in
the existing administration which is treated as an integral part of the state
system. He sketches the administration of Balban and details the market
regulations of Alla-ud-din Khilji. Furthermore, he studies events in their
interrelationships and traces their causes. ‘‘He studies history in a conscious
I} HISTORY AND ITS TERRITORY 27

theoretical framework’’ which marks him as great historian. He is informa-

tive, invaluable and critical. He gives expression to his critical faculty in his
observations, and says, ‘‘I took care to shift the matters, and to distinguish
between fabrication and reality’’. He possessed ‘a reflective mood, inquisi-
tive mind, a fearless temperament and a critical faculty’, and was noted for
‘lucid exposition and clarity of thought’.
Shamshuddin Siraj Afif in his famous work Tarikh-e-Firoz Shahi con-
tinues vigorously the narrative arrangement of events. Ibn-e-Battuta, the fa-
mous Moorish traveller, who held the office of Qazi of Delhi, ranks higher
than Barani in the matters of qualification and historical investigation. He
possessed greater advantages than Barani for getting accurate information
about facts which he supplemented by taking down everything that interested
him during his travels. His reliability is beyond question as far as his personal
knowledge of men and things are concerned.
After Shamshuddin Siraj Afif this advanced trend in historiography was
not continued. The works that came to be composed later narrate the events
in a listless and indifferent manner.
We are on better grounds when we come to the Mughal period. The
prolific historical literature of the period provides greater insights into the
development of historiography both in form and in technique. Many of the
Mughal emperors were themselves men of letters and have left to us their
records of the events of their reigns. Their examples were followed by other
members of the royal family. In addition, the Mughal rulers regularly main-
tained court historiographers and encouraged them to write the official his-
tories of them by even furnishing official date. On these official histories,
S.R. Sharma’s assessment is worthy of notice: ‘‘Drawing upon the accumu-
lated mass of material to be found in the government archives and writing
contemporaneously with the events, their works unfold a view of the history
of the period which is very full, usually very accurate and always very vivid.’’*”
The Akbar Nama by Abul Fazl is the most celebrated official history
of the period. He did not evolve new concepts in the writing of history, but
had scrupulous regard for truth. ‘It was his practice to be critical of self and
indulgence of others’. He obtained material from the record office and from
‘the old members of the illustrious family and the servants of the State’.
Occasionally he quotes Akbar himself as his informant. The Akbar Nama,
written at the instance of Akbar, ‘is invaluable as a source book of extensive
and fairly reliable information’. It served as a model for subsequent historians.

37. Mughal Bibliography, p. 27.

28 HISTORY FOR LAW STUDENTS [CHAP.

Abul Faz! originally wanted to write in five volumes, four on Akbar’s

reign and the fifth, Ain-i-Akbari, on the administrative institutions. In the
narrative part, dealing with Akbar’s reign, the division is regnal, ‘each reign
is treated as a unit. Within the framework of a reign, each event forms an
individual entity’. The book assumes the form of an annual chronicle from
the commencement of the reign of Akbar, when one regnal year becomes
the basic unit. His references to past and present enable the readers to keep
continuity with the march of events. Ain-i-Akbari ‘is meant to be some kind
of gazetteer of information. He fully utilises his potential as a compiler and
editor’.
History, for Abul Fazl, was ‘the events of the world recorded in a chro-
nological order’. However, his work is not the records of the events of the
world but events of Akbar’s reign. To be more precise, it is a narration of
political events centred round Akbar and his court. ‘‘It must be said to his
credit that the exhaustive research which he had carried out for writing Akbar
Nama marks perhaps the most advanced attempt at writing a comparatively
authentic history. To this day, even though his notions may appear extremely
naive and his assumptions utterly invalid, his work remains a landmark in
the history of medieval Indian historical writing’’.
A contemporary of Abul Fazl was Badauni, the author of Muntakhab-
ut-Tawarikh, a political chronicle with a different slant and a different mo-
tivation. It was intended to attack Akbar’s religious policies and to show
his dislike for Abul Fazl, who was extra sympathetic towards Akbar. One
may disagree with his point of view, but there is not denying its immense
historical value. It acts ‘‘as a corrective to the panegyrisation of Abul Fazl.
Where Abul Faz] keeps mum, Badauni pours out in gushes. He thus fills
the blanks in Abul Fazl’s work’’.
The tempo of historical writing was maintained during the period from
Jahangir to Aurangazeb. The historical literature was adversely affected
when Aurangazeb withdrew permission for writing history. The writing of
history, however, continued.
The historiography during the period of the Mughals made marked ad-
vance when compared to the period of the Delhi Sultanate. They did not
formulate any general principles to explain causation in history. Their gener-
alisations are derived from individual events and hence not comprehensive
enough to explain causal relationships between two or more events. The
didactic history was still in force and each event depicted point to a moral
lesson.
I} HISTORY AND ITS TERRITORY 29

Modern Period
The tradition of modern historical writing ‘began with the advent of the
British. The British scholars showed increasing interest in India’s past history
with the sole object of gaining familiarity with the laws, habits and history
of the people they were governing and to gain clear knowledge of the country
in which they had commercial and territorial interest. The Orientalists like
Sir William Jones, Charles Wilkins, H.T. Colebrooke and H.H. Wilson were
genuinely interested in Indian culture. The Asiatic Society was founded in
1784 only to encourage research in classical Sanskrit literature and the study
of religion and philosophy. Renowned scholars like Max Mueller, Monier
Williams, Roth, Sassoon, Burnouf and others ‘‘revealed to India herself
scarcely less than to the western world the majesty and wealth of the Sanskrit
language... and the historical as well as the literary value of the great body...
of Hindu literature which is the key to India’s civilisation’’.*® They exag-
gerated the virtues in Indian society. ‘‘The Indian past was seen as an un-
changing society where the village community was the idyllic centre of
Indian life and was, in fact, the natural background for the qualities of gentle-
ness, passivity, truthfulness, and other worldliness....’’>?
The British historical writings on India during the nineteenth and twen-
tieth centuries had preconceived ideas of India’s past — and this set a distinct
trend in the writing of Indian history. James Mill (1773-1836), the first great
British historian, who completed his History of British India in 1817, asserted
that ancient Indian society had comparatively remained unchanged since its
inception. As a utilitarian, his intention was to lay emphasis on the power
of the government and law to change people. He firmly believed that legis-
lation can improve society. He gave communal colour to Indian history by
dividing it into Hindu and Muslim periods. The evangelicals like Shore and
Charles Grant desired to change India through conversion to Christianity.
They attributed the backwardness of India to Hindu religion. Hinduism, in
their view was, ‘at best the work of human folly and at worst the outcome
of a diabolic inspiration’.*° Thus to the imperialist writers village com-
munities and despotic rulers became the two important symbols of the Orient.
This concept was based on the misleading interpretation of the agrarian sys-
tem in India by the British historians, namely, that there was no private
property in land in pre-British India.

38. Chirol, India, p. 80.

39. Romila Thapar, op. cit., p. 3.
40. Jha D.N., Ancient India — An Introductory Outline, p. XIV.
30 HISTORY FOR LAW STUDENTS [CHAP.

The static nature of the Indian society and absence of private ownership
of land as retailed by the British administrative historians inspired Marx to
work out his thesis on the Asiatic Mode of production. This was charac-
terised by the absence of the privately owned land (since all land was owned
by the State); the predominantly village economy, the occasional town func-
tioning more as a military camp than as a commercial centre; the nearly
self-sufficient nature of this village economy with each isolated village meet-
ing its agricultural needs and manufacturing essential goods; the lack of
much surplus for exchange after the collection of a large percentage of the
surplus by the state; the complete subjugation of the village communities to
the state, made possible by State control of major public works, most im-
portantly irrigation. The extraction of a maximum percentage of the surplus
from the village communities enabled the despotic ruler to live in consid-
erable luxury.*!
The imperialist historiography of India was grossly unsympathetic to
India’s past. Their preconceived notions about India influenced the writing
of Indian history. Other beliefs, carried by a feeling of superiority, was the
concept of the ‘white man’s burden’ to civilise a people, to establish the
rule of law and to shape the destinies of the people. They felt the necessity
to civilise India and unite the diverse pieces of unit under one political
umbrella of the benevolent British rule. They felt that it was the duty of the
‘enlightened British rule’ to restore the old glories of India. Yet, political
and dynastic history filled out the bulk of their product; social and economic
conditions receiving only a scant attention.
The conscious opposition to the imperialist view of history came from
the nationalist historians. Their response was on expected lines. They glori-
fied ancient past with the sole object of pointing to the humiliating present
and for the building of self-respect. They showed that the concept of one
India was already present and both K.P. Jayaswal and U.N. Ghoshal argued
that individual ownership of land was prevalent in ancient India. U.N. Gho-
shal has shown that the Brahmanical law not only had a clear notion of the
concept of ownership in general but also of the essential attributes of private
ownership of land. Their patriotic bias unwittingly led them to glorify Indian
past, exaggerate the self-sufficiency of Indian village and lay undue emphasis
on the ‘‘socially productive aspects of the corporate institutions (castes in-
cluded) of pre-British India’’ without the support of historical evidence.*2

41. Romila Thapar, op. cit., p. 7.

42. tga D Morris and Burton Stein, Journal of Economic History, XX1 (1961), p.
1] HISTORY AND ITS TERRITORY 3]

Their presentation served the cause of nationalism, but not history. They
either ignored or glossed over or tried to explain away by ‘vague philosop-
hical platitudes’ the social inequities, a characteristic feature of early Indian
society. It is probable that many of the early writers came from Brahmana
and Kayastha families. The cultural background of Indian historians tended
to inhibit a critical or analytical study of the sources.** These responses
apart, the Indian historians were primarily dealing with dynastic political
history or with regional history on the model supplied by imperialist histo-
rians.

Recent Trends
From the late 1950s a new trend is discernible in the writing of Indian
history. The appearance of new perspectives have led the historian to move
away from purely political themes to the systematic study of social organi-
sation and politico-economic institutions. Such a study has been facilitated
by the increasing use of archaeological, anthropological and sociological
data and the application of Marxian principles. The most outstanding repre-
sentative of the Marxist historiography in India is the mathematician turned
historian, D.D. Kosambi, who ‘‘created ripples in the so-called tranquil world
of scholarship and has left an everlasting impact on the craft of historians,
both at the level of ideological position and that of methodology of historical
reconstruction.’’** What gave a new direction or suggested an entirely new
lines of enquiry in the study of ancient India, was the publication of An
Introduction to the Study of Indian History (1956). He felt ‘‘Either India
has no history at all, or some better definition of history was needed.’’4> He
realised the need for a better definition of history and boldly stated: **But
what is history? If history means only the succession of outstanding mega-
lomaniac names and imposing battles, Indian History would be difficult to
write. If, however, it is more important to know whether a given people had
the plough or not than to know the name of their king, then India has a
history....’” I shall adopt the following definition: ‘*History is the presentation
in a chronological order of successive changes in the means and relations
of production. This definition has the advantage that history can be written
as distinct from a series of historical episodes.’’*° This definition of history
led him to explain the major historical developments on the basis of changes
in the mode of production.*”
43. Romila Thapar, op. cit., p. 11.
44, Syed A.J. (ed.), D.D. Kosambi on History and Society; Problems of Interpretation,
DAs
45. Ibid, p. VIII.
46. Culture and Civilisation of Ancient India on Historical Outline, p. 23.
82 HISTORY FOR LAW STUDENTS [CHAP.

Kosambi was drawn into the study of history through Marx. But he did
not accept the rigid framework of Marxists who see all history as a suc-
cession of social formation as Primitive Communism — Slavery — Feudal-
ism — Capitalism. He was of the view that ‘Indian history does not fit
precisely into their rigid framework’. With the effective use of anthropo-
logical material and collating the written records with archaeology in con-
junction with ethnorgraphy he came to the conclusion that ancient Indian
Society was not based on slavery; the theory of Asiatic Mode of Production
is not applicable to India; and self-sufficiency is a myth, for ‘most of the
Indian villages produce neither salt nor metals, the two essentials that had
to be obtained by exchange’. It was his view, during the early centuries of
the Christian era the simple structure of the closed peasant village economy
was disturbed when the kings began to transfer the revenue and administra-
tive control over land to their subordinate chiefs who thus came into direct
relation with the peasantry. This process has been styled as “Feudalism from
Above’. When the superior landowners tended to originate from within the
villages, it was ‘Feudalism from Below’. He regards these as successive
stages. The differences between European feudalism and the Indian situation
have led them to call the Indian model as ‘Indian Feudalism’.
Following Kosambi it was R.S. Sharma who comprehensively worked
out, for the first time, the nature and applicability of the model of Indian
Feudalism. He, however, did not accept the successive stages of Kosambi.
In his Indian Feudalism: C. 300-1200 (1965), Sharma traces the origin of
Feudalism and sketches the feudal polity during the period of his study. On
the authority of the land grants, Sharma demonstrates that feudalism began
in India with the grant of land made to the Brahmanas and religious institu-
tions. He further points to the grant of villages ‘together with their fields
and inhabitants, fiscal, administrative and judicial rights (with the right to
enjoy fines received), and exemption from interference of royal officials’ to
religious beneficiaries. The economic essence of feudalism lay in the rise
of landed intermediaries leading to the enserfment of the peasantry through
mounting tax burdens, increasing obligations to perform forced labour and
the evils of subinfeudation.!48
More recently Irfan Habib appears to view the features of feudalism
differently. ‘“It seems to me’’, he says, ‘‘that while secular land grants were
a devise for dispersal of power, these cannot themselves be regarded as the
key causative element in Indian feudalism; these were rather a consequence
of it. Two features from which we can draw further inferences about its
nature are the decline in internal trade and rise of cavalry.... No one has
said that towns had disappeared; it is their size and number that seem to

47. Basis of Indian History, JOAS, IXXV, pp. 35-45, 226-237.

48. R.S. Sharma, Survey of Research in Economic and Social History, p. 12.
1] HISTORY AND ITS TERRITORY 33

have shrunk... the caste system was of as much use to the ‘feudal regime’
as to the medieval Muslim ruling classes which followed it: it was by no
means an exclusive feature of Indian feudalism’’.”
There are divergent views regarding the feature of feudalism and some
have seriously challenged the model itself. It, however, continues to be a
matter of animated debate.’
Romila Thapar has drawn our attention to the imperative need of a close
collaboration between the historian and archaeologist as such a collaboration
would enable the historian to understand in true perspective the settlement
patterns, technology, food production with the facilities of irrigation and
hydraulic systems, urbanisation and so forth. One need hardly emphasise
that clues to the material condition of a culture lie in archaeological evidence.
R.S. Sharma is again the first historian to notice the value of archaeological
evidence and his two works, Material Culture and Social Formation in
India, (1983) and Urban Decay in India (1987) bear ample testimony. Om
Prakash Prasad’s Decay and Revival of Urban Centres in Medieval South
India, c. A.D. 600-1200 (1989) focuses attention on the situation in Karna-
taka. Many scholars are taking up such studies with particular reference to
India or the regions of the country.
Similarly certain correctives to the imperialist view in respect of certain
fundamental problems of early Indian social history have also been offered
by historians. They have drawn our attention to the difference between the
Varna model and the Jati model. The latter is shown to operate at the local
level, but the Varna model remains the same all over India. Theoretically
the Varnas are divided on the basis of their functions, but Jati hierarchy is
organised on the principle of the absolute purity of the Brahmana caste and
the relative impurity of all other castes. Romila Thapar thought that the Jati
represents the functional and Varnas the theoretical aspects of caste. What-
ever be its nature, ‘they were originated in and were sustained by secular
and politico-economic factors’.
The use of mathematics in social science is now becoming a common
place. Historians and social scientists are frequently using quantitative
methods of analysis to study and describe evidence in their respective dis-
ciplines. It is refreshing to note that the Indian historians, instead of treating
history as a mere chronicle of events are laying greater emphasis on analysis
and interpretation. This healthy trend is discernible in the study of ancient
medieval and modern periods of Indian History.

49. Irfan Habib, op. cit., pp. 26-28.

50. Vijaya Kumar Thakur, Historiography of Indian Feudalism, p. 10.
51. R.S. Sharma, op. cit., pp. 46-47.
52. Ibid, p. 89.
 Chapter II

_ Polity in Ancient India

an is both a factor as well as a product of the society, and man
and society have no value apart from each other. Man is a member of an
effective, enduring organisation which is called a group, ‘an articulated
whole’, or a collection of individuals which can rationalise and discover
harmony out of differences. The progress of man depends upon his
capacity for organised group life, for associated action and a willingness
to enjoy intérests incommon with his fellow men. The essence of society
is difference and the purpose of social life consists not in creating
uniformity but unity. The common purpose of the society can be realised
only when its only agency. that can help man to realise this object is the
_State» The State is a political organism which unites and co-ordinates
social forces according to precise rules.
Ancient Indian political writers, unlike the modernists, never.made a
clear distinction between the state and government. They also never
wholly identified the kingwith
w thestate. The king was merely one of the
seven elements of the state,e,the other six being ministers, arms, territory,
a treasury,capital and allies. Sovereignty was only one aspect and the state
in its basic theory was its expression. ‘The sovereign power of the state
was articulated through the king who was considered responsible for all
that happened in his reign.’.
The state in ancient India was both a functional and structural power
entity. The state covered the entire activity of organised secular
community. Ancient Indian thinkers conceived the state as being the
complex of all social activity. According to Beni Prasad: “The theory
of Santiparvan makes it (the sphere of activity) coterminous with
the state itself. The state should ceaselessly foster righteoussness,
guide, ontrol and correct the moral life of the people, make the
world abitable and comfortable for men. It is possible that
the heorists ad some basis of practice for his counsel when
he anted he government to reclaim land for cultivation, to excavate
tanks and lakes and thus make agriculture independent of
the caprices of rains, to make loans of seed grain tocultivat-
ors in times of need.”1 As pointed out by K.V. Rangaswamy Aiyangar in

1. State in Ancient India, p. 98.

[ 34]
 {I} POLITY IN ANCIENT INDIA 35

his Indian Cameralism, the scope of the state activity in India was paralleled
only by the ‘Cameralist’ activities of the German states in the 18th century
which constituted the first major departure in political thinking, leading di-
rectly to the administering state of the 19th century and the welfare state of
the 20th.* Since the state was an institution for serving some of the common
interests of man in society, it is important to know state formation in ancient
India.

1. State Formation in Ancient India

Early Experiments:
At. the tume of the Aryan invasion agricultural and urban communities
existed in India. We learn from the Vedas they were organised under power-
fulmonarchies, Some of them were lords of a thousand forts and offered
resistance to the forward march of the Aryans. There is reference to one
Bheda, the non-Aryan monarch, taking part in the great battle of the Ten
“Tas: The period ‘marks the first significant stage in the development of
Indian state and society’. But due to the paucity of written sources we are
not in a position to describe in detail the political activities of the pre-Aryan
population.
~~

2. The Tribal Polity in the Rig Veda:

The Aryans who entered India were only groups of semi-nomadic tribes.
They were primarily aa pastoral people. They had no knowledge «of iron and
did not practise effective cultivation. Though they possessed horses, their
tools and weapons which were made of copper did not provide them with
any advantage ‘to form large empires, leading to developed state organisa-
tion’. Therefore, to get an idea of the political organisation of Rig Vedic
times, it is necessary to examine the social life of the people.
The semi-nomadic life of the early Aryans kept them mobile. They were
unable to form stable kingdoms since territorial state is everywhere the result
of settled life. This reflected on their social relations which could neither
be rigid nor stratified. Hence they could develop only tribal principalities.
The social structure of the Rig Vedic people was based on Kinship. The
terms gotra and vrata occur in theRig Veda at several places. The term
gotrais used in the sei
sense of cow-pen or cow enclosure and the people who
lived under
the same cowshed. came to belong to the same gotra. “‘If one

2. See K.M. Panikkar’s The Ideas of Sovereignty and State in Indian Political
Thought, p. 6.
36 HISTORY FOR LAW STUDENTS [CHAP.

goes by the literal meaning of the term we could say that economic activity
lay at the root of the formation of these gotras, which can be rendered as
clans or lineages’’.’ Vrata (hoard or troop or assemblage), also a kin-based
group, functioned under a head called Vratapati. Grama meant simply a
collection of related families (kin-based) that was a basic element of the
social structure. It came to denote a village when its members took to ag-
riculture and sedentary life. It also then formed the smallest political unit.
The occurrence of the such terms as jana and vis. in the Rig Veda
suggest that the society had not yet passed the tribal stage. Jana was the
highest social unit based on patriarchal kinship. Some think it corresponded
with the tribe; its chief was known was janapati-or janasya gopta or king
(raja). Vis was_a sub-division of the jana_or tribe: clan of the tribe, which
had its own chief called vispati or visampati. Visas, which were fighting
units, were closely knit together, and on the battle-fields battalions were
often arranged as per vis from which they had been recruited.
The basic elements of state like the fixed territory, a regular source of
income and the standing army are noticed. The people were more attached
to their different kin groups than to any territory. The tributes which the
victorious king received from the vanquished was obligatory and not regular.
This is also true of the army which seems to have been an improvised one
mobilised out of the tribesman whenever the need arose. But ‘the process
that gave rise to the state organs’ had already begun in the Rig Vedic period.

3. Tribal Assemblies

Vidatha:
The term Vidatha_can be derived from the root Vid to know or to
consider and to exist. Altekar thinks that it ‘‘probably indicated a religious
or sacrificial gathering, rituals at which required the highest knowledge’’.*_
Vidatha seems to have been the parent folk assembly from which the Sabha,
Samiti and Sena differentiated, for we find Vidatha associated with civil,
military and religious functions.’ It may denote a religious assembly which
organised the religious life of the people. The one Characteristic which dis-
tinguished Vidatha from the Sabha and Samiti was the active part which
women took in the Vedic sacrifices in early time and the prominent part
they played in its deliberations. The references in the Rig Veda leave us in
no doubt that it must have been a family council.

3. R.S. Sharma, Origin of the State in India, p. 5 and Aspects of Political Ideas and
Institutions in Ancient India, pp. 264-271.
4. State and Government in Ancient India, p. 141.
5. K.P. Jayaswal, Hindu Polity, p. 21.
Il) POLITY IN ANCIENT INDIA 37

et

lation of the tribal affairs. The people assembled in the Vidatha Taiibuies
what they procured as food where the mighty received a lion’s share. It
seems to have conducted its military.operations under a war chief. It appears
to have been a big assembly, probably representing the entire tribe, because
there are references to people being arranged there by groups, and singing
and dancing. In short, ‘the Vidatha was the earliest folk assembly... attended
both by men and women, performing all kinds of functions, economic, mili-
tary, religious and social. It answered the needs of a primitive society which
fandly knew division of labour or domination of male over the female, and
which probably shared its products in common... the keystone of the Vidatha
system was cooperation’’.® But it does not appear to have taken active part
in the administration.

Sabha:
The popular element is to be found in the Sabha and Samiti. They were
a distinguishe popular boddy and noteworthy organisations of the Rig Vedic
period. That they are of hoary antiquity may be gleaned from the fact that
they are regarded
as the twin daughters of Prajapati, the Creator._
The Sabha was an unique organ of the Rig Vedic polity. The precise
meaning of the word, Sabha is not clear and different scholars, both Oriental
and Occidental, have interpreted its meaning differently. According to Lud-
wig it was something like the upper House where the priests and aristocrats
were represented; while Zimmar regarded it as the village assembly. Hille-
brandt thought it was a meeting place of the Samiti. N.C. Bandopadhyaya
rightly suggested “the Sabha was at first an association of kinsfolk, but later
became also an association of men bound together either by ties of blood
or local contiguity. It was a central aristocratic. gathering associated with the
king and may as such be called the political councjJ®. It was a tribal assembly
where the members ‘debated over the domestication of cattle, played dice
and offered prayers and sacrifices’. In the Rig Vedic period women also
attended the Sabha but itwas discontinued [ater
in Vedic times. aes,
a

This primitive assembly came to assume a patriarchal and aristocratic

character in the later period. The description that the members. of the Sabha
were invested with lustre and ‘a member Of the Sabha as a person possessing
considerable wealth (consisting of kine of course) and going to the Sabha
in his full paraphernalia, riding on a charger or seated in a carriage’ would

6. R.S. Sharma, op. cit., pp. 94-95.

38 HISTORY FOR LAW STUDENTS [{CHAP.

confirm its aristocratic character. It was composed of members known for

their character and integrity, learning and bearing; in other words men of
distinction and high social status.
The Sabha transacted both political and non-political business. It de-
liberated over pastoral affairs and matters concerning religion. It also func-
tioned as a National Judicature. ‘‘Even during royal Imperial centralisation’’,
writes R.C. Majumdar, ‘‘the judicial Sabha preserved traces of its popular
origin and retained some important popular features in its administration of
justice’’.
The Sabha conducted its business by debate and discussions. Free and
frank discussions were held before arriving at unanimous decisions. The
decisions of the Sabha were binding on all. The king attended the meetings
of the Sabha and considered its advice ‘to be of supreme importance’.
The Sabha was a noteworthy constitutional organism in the Vedic age
and later. R.C. Majumdar in his Corporate Life in Ancient India has pointed
out that ‘the Sabha of the people afforded an extensive scope for the cor-
porate activities in the political field. It was no mere effete body, but pos-
sessed real control over the king.... The numerous references to it hardly
leave any doubt that it formed a well known feature of public administration
in those days’. The Sabha had its President called Sabhapati.

Samiti:
Samiti was another important constitutional organism of the Vedic
times.Itwas an younger contemporary of the Sabha. The Rig Veda mentions
it in the sense of an assembly of the VédietribéLudwig holds that it was
something like a Lower House, a more comprehensive body consisting of
all the common.people (Visah), the brahmanas and rich patrons. Samiti,
accordingto Bandopadhyaya, was a gathering of the whole folk of the com-
munity, the assembly of the Rashtra; it had a close connection with the
royal person and met on all important occasions like royal coronation, in
times of war and national calamity. In other words, it was an august assembly
of a larger group of people for the discharge of tribal (i.e. political) business
and was presided over by the king.
Altekar thinks that the Samiti was composed of aristocratic elements
and priests, at least the royal chaplain. There are references to the princes
attending the Samiti in later times. It also contained popular elements. The
members of the Samiti were men of substance and enjoyed high status in
the society. The views of Jayaswal that the village formed the basis of the
constitution of the Samiti, if not originally, certainly in later times, does not
find support among writers on ancient Indian polity.
Il) POLITY IN ANCIENT INDIA 39

Amongst its most important political function mention may be made of

the election of the king. It could even re-elect a king who had been banished.
All matters of the state,
tate, military ; and executive affairs, were discussed and
decided by the Samiti.However, U.N. Ghoshal thinks, ‘there is not sufficient
evidence to prove that the Samiti was the sovereign body of the Vedic times,
or that it exercised considerable control over military and executive affairs
of the state, or it decided all questions of policy, while the reference to its
alleged right of legislation is a lamentable historical anachronism’.
Questions which were non-political in character were also discussed in
the Samiti. As a National Academy it tested the knowledge of educated
persons. There is a reference in the Upanishads to Svetaketu, after com-
pleting his education and claiming complete knowledge of the philosophic
literature, visiting the Samiti of the Panchalas. The king, who was present
in the Samiti, put to him five philosophic questions to test his scholarship:
but he had no answer to any one of them. This suggests that the Samiti
ane NS

was considered necessary. It had its own|President called Pati or sana.

As a deliberative body, the proceedings of the Samiti were conducted
by debates and discussions with a view to achieving concord. Emphasis was
laid on the concord between the king and the assembly and on the spirit of
harmony among its members. One can well understand the sincerity of the
prayer offered in the last hymn of the Rig Veda:
Assemble, speak together, let your minds be all of one accord,
The peace is common, common the Assembly, common the mind,
so be their thoughts united
One and the same be your resolve, and be your minds of one
accord
United be thoughts of all that may happily agree.’
We may here quote the remarks of R.C. Majumdar ‘‘Thus to the credit
of the political leaders must it be said that amidst the contests and conflicts
of the corporate political life, they never violated the cardinal doctrine of
the supremacy and independence of the Assembly at large, and to the honour
of the people who graced that Assembly be it ever remembered that such
was their honesty and sense of responsibility, that friends and foes alike
recognised that the only force before which they would yield was the force
of reason and argument.”’

7. R.C. Majumdar, et. al. The Vedic Age, p. 254.

40 HISTORY FOR LAW STUDENTS [CHAP.

The existence of these institutions suggest that the people in the Vedic
period ‘took politics seriously and that the society in Vedic India was char-
acterised by a keen sense of public life and an animated political activity’.
But as the states grew larger.and.larger, Samiti perhaps experienced diffi-
culty in meeting often and exercising regular control. Under the circum-
stances the kings wrested all powers and the Samiti disappears from the
political scene. However, Jayaswal thinks that in later times the parishad
took the place of the Samiti. The Sabha developed as the Privy Council of
the King.

4. Later Vedic Development

The tribal state of the Rig Vedic period tended to assume territorial
character in the later Vedic period. This was indeed the result of settled life.
The community took to agricultural life and this facilitated the regular pay-
ment of tribute to the chief or to the raja. The priests invented the rituals
to secure the reluctant tribal peasantry’s permanent subordination to the raja.
The most important incentive to the development of a strong central authority
was the hostility of the indigenous population. Yet ‘the later Vedic power
structure had assumed a character which was that of a pro-state. Thus society
stood at the threshold of the formation of the state which originated in set-~
tlements inhabited by agriculturists’. The improvements in the material situ- :)
ation, particularly in the middle Ganga plains, in the post-Vedic period
:

brought to the fore the need for the protection of private property and pa- :
triarchal family, which in turn occasioned the origin of the state. Around ©
500 B.C. there was increased availability of surplus and the machinery for
its mobilisation had come into being. These developments completed «|
process of state formation.*®

5. Kingship
History is not a matter of individual kings or dynasties; a true history
must be history of civilisation or the progress of mankind through the march
of time. History must reflect the social forces of the time and, as Croce
points out, deals with ideas and with facts as representing ideas. Hence the
ideal of kingship is important but the greatness of kings is illusory. A clue
to the understanding of this ideal perhaps lies in the origin of kingship.
Some speculation regarding the origin of kingship occurs in the Vedic
literature, Aitareya-Brahmana.refers to war between the devas (gods) and
danavas (demons) in which gods were repeatedly defeated. The gods then
realised that the reason for their defeat was the absence of leader to lead

8. R.S. Sharma, Origin of the State in India, pp 13-37.

 II} POLITY IN ANCIENT INDIA 4]

them while their counterparts had one, the king. They decided to try this
experiment, finally elected Indra as their king and triumphed over the de-
mons. It was the necessity of war that led to the origin of kingshipand at
least in the ‘beginning it was based on the principle.
The same line of thought, though later in time, is found in the Buddhist
literature. ‘The origin of kingship is discussed at some length in the» Agnna
_Sutt ang. At first it refers to society where prevailed the state ofmat-
syanyaya (the logic of the fish); where the strong devoured the weak; where.
“prevailed a state of anarchy in the absence of authority. Then the Suttanta
proceeds: *“Therefore those being gathered themselves together and after
taking counsel, selected the most handsome and capable individual amongst
them, addressing him thus: ‘Come..now;~good=being,-do..punish,..revile..and
exile those who deserve to be Paunialed, reviled and exiled. We will con-
Aribute to you a portion Of Our Tice”. He ‘consented and did’so, and they gave
him a portion of their rice’ Because he was chosenn by the whole people he
was called Maha Sammata (the Great Elect), because he
he was the lord of”
the fields Kshatriya,
he was called and because he delighted others by es-
tablishing law he was called Rajan.’’?
This speculation implies monarchy to be both elective and an,
What is more, the social compact is succeeded by political contract.
precedence of social compact may point to the ‘advanced stage of sof
development whe Tietribalsocietyhad broken up, giving rise to clash of
interests between men and women, between peoples of different races and
‘colours and between people of unequal wealth’, and the paramount import-
ance of social order, an essential prerequisite, for the establishment of pol-
itical order. It is this ‘which markedly distinguishes the Buddhist contract
theory from the one which can be inferred from the Barahmanas’.'° An
analysis of the statement indicates the change in qualification of the person
to be elected as king. The emphasis is no more on the qualities of ‘valour
and strength’, as was before, but on ‘beauty, popularity, attractiveness and
ability’. True to its profession of ahimsa Buddhism advocated that the king
must possess ‘physical qualities of aesthetic type’ combined ‘with those of
head and heart’. It further envisages the protection of land (property) as the
primary duty of sicping,TheWe Talatniya SURGES Thatthe"Kingexeieised
his authority over land not as the owner of the land but as the representative

9. K.M. Panikkar, op cit., pp. 16-17.

10. R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, pp. 66-67.
 42 HISTORY FOR LAW STUDENTS [CHAP.

of the community’. ‘Accordingly the contractual relation between the king

andthe people*reflects the proprietary right of oligarchy over land’. The
title Rajan indicates that the king delighted the people by rooting his actions
in the precepts of dharma (righteousness or justice). Therefore the king
should be respected.
The origin of the state occurs only incidentally in the Arthasastra. The
subject is introduced ‘during 2a discussion of spies, whohad formed them-
selves into two parties, in various public places. One party there says:
‘‘People suffering from anarchy, as illustrated by the proverbial tendency of
a large fish swallowing a small one, first elected Manu, the Vaivasvata, to
be their King; and allotted one-sixth of the grains grown, and one-tenth of
merchandise as sovereign dues. Fed by this payment, kings took upon them-
selves the responsibility of maintaining the safety and security of their sub-
jects, and of being answerable for the sins of their subjects when the principle
of levying just punishments and taxes has been violated.’’!! This passage
encourages a contractual theory.In the same way people are told that, as
the king fulfils the functions of the Gods Indra and Yama upon earth, all
who eke him will be punished not only by the secular arm, but also by
heaven. !? Though Kautilya _justifies king’s authority by means of Divine
at the same time, he brings out with great clearness the principle that
~ the king is an official receiving the revenue for the services of protection.
This idea is further carried to the point ‘the king is spiritually responsible
for the faithful discharge of his functions. Therefore the necessary condition
of this relation is payment of tax’. Here also ‘the contractcttheory is
i purported
to buttress royal power...
There are two speculations in the Santi Parva section of the Mahab-
_arata.containing elements of the contract theory
t of |the origin of the state.
i arnold ‘which was most appropriate in the Vedic and Brahmana
periods no longer suited
the epic.age. The first occurs in the S9th cha a
It speaks of Brahma, the Creator, composing a treatise on statecraftw
gods approached him and complained of the decline of virtue on the oo
Then Vishnu created an asexual son named Virajas on appeals by gods to
work out the treatise. In this line was born Vena, a tyrannical ruler. The
sages killed him, and created out of his right thigh Prithu and he took the
vow to rule righteously as required by the sages.
According to the first speculation, the king was the heir of Vishnu and
his legitimacy was
derived-from*his:divine.ordination. Secondly, the contract
was between the king.and.the_ brahmanas and it was a unilateral contact.
———

11. R. Shamasastry, Kautilya’s Arthasastra, pp. 22-23.

12. Ibid, p. 23.
Il} POLITY IN ANCIENT INDIA 43

The king promises to protect and respect brahmanas and to grant them pri-
vileges. This suggests the increasing importance of the brahmanas.
The second speculation concerning the origin of the state occurs in the
67th chapter of the Santi Parva. It begins with a discussion on anarchy
being rampant in the society and the prayer of the people to the Creator to
appoint some one as their king. The Creator appointed Manu for the gov-
ernance of the people. Manu hesitated, because he thought it difficult to
govern men who are always false and deceitful in their behaviour. The
people, however, overcame his reluctance by promising to pay to him 1/50
of animals and precious metals, 1/10 of grain, their most beautiful daughter
and able-bodied men foremost in the use of weapons, in riding animals and
driving vehicles. They further assured that 1/4 of their merit would accrue
to him. Manu checked the acts of wickedness by setting all men to their
respective duties.
Even in this speculation the kingship is not the result of a bilateral
agreement between the people and one of their own. It is thee creation of of
divine will, and in the agreement the people make extravagant fpromises to.
the king.“Yet, the contractual theory occurring in this speculation should be
regarded as the most adequate theory on the origin of the State. In this
statement four important elements of the state — Rajan, bala, kosa and
danda — out of seven are distinctly noticed. qe
The_contractual. idea of the origin of the sovereign is the most |obvious
answer to the_problem
of yoluntary. obedience.to_an authority placed over
thi le. Undoubtedly the conception of ancient Indian speculators in re-
gard to kingship was contractual. But it would be highly misleading if from
this point we proceed to see in it the whole constitutional theory of the
modern democratic state. Another aspect that ishighlighted im the theories
regarding the origin of kingship
isthe fear he fear of anarchy
was almost pathological: Matsyanyaya underlies every concept of kingship.
Society in its natural state is anarchy. Although this concept of human nature
existed in Europe and elsewhere, it was in India that it reached its highest
development and became the central theme of political philosophy. It was
a frighteningrk for the people to visualise the state without a king. As a
writer puts i ing is a necessity. He may be cruel, arbitrary, and unjust,
but even so he is the lesser of the two evils. This is also significant in Indian
political theory. Kingship was never held to be a good thing. It was a blessing
only in that it saved men from a worse condition. Kingship was considered
as a regrettable, but very necessary —
44 HISTORY FOR LAW STUDENTS [CHAP.

Ancient Indian political thinkers were of the view that the king being
the protector of the people from rampant anarchy there is no ground for
legitimism in the European sense. If the king fails in this primary duty of
his he will be breaking the solemn social compact and in which case people
are permitted to shift their allegiance to de facto rulers. Bhishma says, *“That
person who always protects the good and restrains the wicked deserves to
become a king and to govern the world. A king who is unable to protect is
useless. If the king fails in his duties, any person, no matter to what caste
he belongs, must be accepted as king.’’ Bhishma even goes to say that in
an anarchical state even a usurper should be accepted. This justification is
sufficient to show that absolutism was no part of the intention of the Indian
political system. The maintenance of the social order is the Lire necessity
and he, who is in a position to do so is entitled to obedience.'? According
to Sukra the king should be obeyed by the people so long as he follows niti
and governs justly.
The ceremony of coronation or rajasuya added majesty to the office of
the king. The ceremony symbolised the dedication of the king to the service
of the people and an affirmation of the covenant between the ruler and the
ruled. The rajasuya consisted of three parts, the preliminary rituals, the
coronation proper and the post-coronation ceremonies. The preliminary rit-
uals consisted of ratnahavimsi ceremony according to which the king to be
appointed had to approach the houses of ratnis or dignitaries and offer ob-
lations. The purpose was to secure their approval for his accession. It served
another purpose, the creation of the feeling of attachment and loyalty in
their mind to the new ruler. On the day of coronation the king was anointed
with different liquids from the four sides: with ghi by the brahmana from
the east, with milk by the kshatriya from the south, with curd by the vaisya
from the west and with water by the sudra from the north. This meant en-
listing support of the different social groups. Then the king gave a pledge
of standing by law. The rituals over, the king toured over his realm signifying
that he bound himself to the land over which he ruled. It may also suggest
the territorial characteristic of the monarchy in the later Vedic period.

6. The Royal Function

The primary duty of the king is the protection of the people and to
assure them the security of life, property and belief. The purpose of kingship
being protection all other duties are made subject to it. The Mahabharata
declares protection as the cheese of all kingly duties. Otherwise, ruin will
rs Pe

13. K.M. Panikkar, op. cil., p. 29,

IT] POLITY IN ANCIENT INDIA 45

overtake everything if the king fails to exercise his duty of protection. Under
the protection of the king men being fearless can sleep with the doors of
their houses open. *‘Maintenance of external and internal peace, the uphold-
ing of the social order, the creation of conditions under which people can
live a free life — this is the wider meaning that the writers on politics give
to the word protection’’. The ruler who fails to protect his subjects is com-
pared to the barren wife, the dry cow and the bull that bears no burden. The
substance of the kingly duties is contained in the following significant half
stanza of the Javanese version of the Mahabharata:
‘Be like a gardener and not an incendiary’.
S.K. Belvalkar explains the statement thus: ‘‘The head of the state
is herein advised to be a gardener of the state, whose duty it must be
to string together diverse flowers... into a charming garland, thereby
raising superior to all differences, skilfully blending all colours, sizes
and aptitudes so that they might subserve the common purpose.... As
opposed to the gardener’s is the work of the angarika, the incendiary,
who takes delight in discovering and accentuating differences and, at
every available opportunity, tries to bring them within striking distance
of one another so as to set the whole state machinery into a conflagration
and, under cover of the fumes created in the process, to make away
with whatever valuables he can lay hold upon.’’!*
Bhishma says that the interests of the people are of supreme value than
serving god, as in the former one deals with certitude and the latter that can
only be inferred. Finally he advises the king to behave thus: “‘Just as a
woman, who is pregnant at inconvenience to herself and suppressing her
own pleasure, does what is good for what she carries in her, so the Raja,
who follows his duty, setting aside his own inclinations, follows the will of
the people.’’!> The same spirit of royal activity is expressed in the Artha-
sastra of Kautilya. In spite of his being an apostle of monarchic cult, Kaut-
ilya never supported an autocratic ruler. He advises the king to secure the
commonweal through initiative and enterprise. The dynamic character of
kingly duties are thus emphasised by our author: ‘‘In the happiness of his
subjects lies his happiness; in their welfare, his welfare; whatever pleases
himself he shall not consider as good, but whatever pleases his subjects he
shall consider as good.’’
‘‘Hence the king shall ever be active and discharge his duties; the root
of wealth is activity, and of evil its reverse.’’'®
14. Bharatiya Vidya.
15. K.M. Panikkar, op. cit., p. 63.
16. R.S. Sharma, op. cit., pp. 38-39.
46 HISTORY FOR LAW STUDENTS [CHAP.

All the political theorists in ancient India have laid down prajahita
(welfare of the people) as the first principle of rajanitt.
The upholding of justice, as the counterpart of external protection, is
considered as the supreme duty of the king. The king was also the moulder
of the society; and he established all his subjects in the observance of their
respective duties and maintained the purity of class and caste. The economic
prosperity of the people was also his main concern. In the due discharge of
his duties the king is advised to practice the virtues of promptitude, energy,
truthfulness, self-restraint, humility, righteousness, fortitude and compassion.
Comparing the king and the ascetic the Arthasastra says: ““The king’s pious
vow is readiness in action, his sacrifice, the discharge of his duty.’’ Thus,
the king was to look after the material and moral welfare of his subjects.

7. Councillors and Officials

The ratnahavimshi ceremony which formed part of the rajasuya coro-
nation sacrifice required the king to be anointed to visit the house of each
ratnis and offer oblations to the appropriate deity there. The ratnis may
denote a governing class or as has been rightly pointed out by Jayaswal the
high functionaries of the state. These functionaries, who were eleven in num-
ber according to Jayaswal, included, in order of precedence in_the official
hierarchy, senani (originally the leader of the host and later the comman-
der-in-chief), gramani (leader of little groups of people to the battlefield in
addition to functioning in a general supervisory nature over the villages),
Sutra (who functioned both as charioteer and wheelmaker), Ksattri (cham-
berlain), samgahitri (charioteer or according to Jayaswal master of treasury),
bhagadugha (collector of taxes), akshavaha (officer connected with sports),
govikartana (chief huntsman, the keeper of the games and forests), taksan
(carpenter), rathakara (chariot-maker) and palagala (messenger). To this
list of eleven R.S. Sharma adds four more; purohita, rajanya (the warrior
representing the warrior class of the Kshatriyas), mahisi (representing the
Earth goddess, indicating the importance of the matriarhcal element in the
later Vedic polity) and parivrikti (a discarded queen without a son).'’ On
the authority of Pancavimsa Brahmana R.S. Sharma says that the purohita,
the rajanya, the mahisi, the gramani, the ksattri and the samgahitri were
persons of distinction and they are described as persons who consecrate the
king, and together sustain the kingship.'®
17. Ibid, pp. 132-141.
18. Ibid, pp. 142-143.
it) POLITY IN ANCIENT INDIA 47

The fact of the king to be anointed visiting the houses of the ratnins
prior to his consecration shows the important place they occupied in the
administrative set-up of the day. However, it is not easy to make a clear
distinction between the members of the council and high state functionaries.
At best they must have constituted a sort of bureaucracy, which emerged in
a recognised form in the Arthasastra of Kautilya. Nevertheless, the number
of officials point to a more developed administrative organisation than be-
fore. The machinery of taxation was being consolidated becomes evident
from the office of bhagadugha while the officials like purohita, govikar-
tana suggest the legacy of the tribal life in a state predominantly territorial
in character. It can be maintained that the ratnins were ‘‘differentiated or-
gans of government’’ not to be noticed in the early stage.
In the present state of our knowledge it is difficult to say whether the
ratnins were elected and the basis for their selection or election. Jayaswal
surmises that they were high functionaries of the state selected on the prin-
ciple of class and caste representation. He appears to be correct, for, all the
Varnas and important social groups were associated with the work of the
government. What is noteworthy is the association of women, a position
which they failed to retain from the later Vedic period onwards.
It is clear from this survey that the state tended to be territorial in char-
acter with a fixed territory, a definite source of income with settled agricul-
tural life, an army to defend its territorial interests and a bureaucracy, though
in a nebulous form, to man the ship of the state. The ‘new state was pre-
dominantly military in character, for as many as half a dozen functionaries
were associated with military work’.

8. Oligarchies and Republics

The pre-Maurya India witnessed the flourishing of tribal states governed
by oligarchies side by side with monarchy, which was usual in ancient India.
These bodies which are denoted by the term ‘republic’ had assumed caste
characteristics. In fact, the ruling class in the republics of the Sakyas and
Licchavis belongs to the same clan and same varna.
Vedic literature gives faint indications of such tribes at a very early
date’ As has_ been shown by N.C. Bandopadhyaya these early tribes and
clans were organised on the basis of blood relationship. The members of
the group retained their independence and local governing authority, though
owing allegiance to chiefs belonging to a certain family. With the spirit of
war and conquest, well constituted sub-divisions of such organisations came
into existence and they are well known in the Vedic literature as gana,
48 HISTORY FOR LAW STUDENTS [CHAP.

vrata, shardha and visah...With the change of circumstances the Vis

changed its character and allegiance to hereditary chiefs developed into mon-
istic political discipline. In the regions of Indus basin or in the foothills of
the Himalayas in U.P. and Bihar, which remained outside the influence of
the social and religious changes, the old character of social life and organi-
sation survived and in course of time, many more corporate bodies like the
gana, sreni or puga came into existence for purposes of social or economic
or political activity.
In the Ashtadhyayi of Panini the two words gana and sangha appear
in a number of sutras. But no information as to the meaning of the word
is available. The view of Jayaswal that the term gana signified the form of
government and sangha, the state has not been accepted by scholars. The
reasonable view would be to take ganas as the primary unions composed
of families of the same kindred while a sangha is to be regarded as an
aggregate of such ganas.
The Pali books make incidental reference to a number of republics,
some with complete, some with a more or less modified independence, and
one or two of very considerable power. The two republics of considerable
power were the Vrijian confederacy and the Sakyas of Kapilavastu. The
chief element of the Vrijian confederacy was the Licchavis of Vaisali. The
Ekapanna Jataka gives the following information. In that city there were
always 7707 kings to govern the kingdom, and a like number of viceroys,
generals and treasurers. The Jataka statement relating to the multiple ex-
ecutives (governors, generals and treasurers) is not only unauthenticated by
independent testimony but is improbable. The rajas who numbered 7707
‘must have covered all the heads of families of the tribe who were eligible
to take part in the tribal assembly’. The Jaina accounts refer to an inner
council of thirty-six tribal chieftains controlling the affairs of the Licchavis,
Mallas and allied tribes in their war with Ajatasatru. The whole confederation
had a raja-in-chief, an executive head who seems to have held office for
life and often to have passed on his office to his heir.'? This was particularly
true of the Sakyan executive head who bore the title raja. The Buddha
belonged to the republic of the Sakyas.
The administrative machinery of the Sakyas was simple and rudimen-
tary. Rhys Davids describes its government thus: ‘‘The administrative and
judicial business of the clan was carried out in public assembly, at which
young and old were present, in their common Mote Hall (Santhagara) at

19. A.L. Basham, The Wonder that was India, pp. 96-97.
IT} POLITY IN ANCIENT INDIA 49

Kapilavastu. It was at such a parliament that King Prasenajit’s proposition

was discussed.... And it is to the Mote Hall of the Mallas that Ananda goes
to announce the death of the Buddha, they being in session there to consider
that very matter.’’
“*A single chief — how, and what period chosen we do not know —
was elected as office holder, presiding over the sessions, and if no sessions
were sitting, over the state. He bore the title of Raja, which must have meant
something like the Roman counsel or the Greek Arcon.

‘‘Besides this Mote Hall at the principal town we hear of others at some
of the other towns above referred to. And no doubt all the more important
places had such a hall, or pavilion, covered with a roof, but with no walls,
in which to conduct their business. And the local affairs of each village
were Carried on in open assembly of the house holders, held in the grooves.’’

It is evident from the description of Rhys Davids, that the Sakya state
was territorial in character. It was an aristocratic republic with a single,
permanent and hereditary head called Raja and an assembly of the ruling
caste or class. The assembly deliberated on public affairs and momentous
issues of war and peace and the questions at issue were decided by the
unanimous opinion of the citizens, and in its absence by the voice of the
majority. This must have been true with other republics of the period.

K.P. Jayaswal and others have reasonably suggested that the Buddhist
ecclesiastical procedure must have been modelled on the constitution of the
republican tribe. The Buddha, son of Sakya King, Suddhodhana, a born
democrat, was familiar with the republican constitution and as Bhandarkar
says, ‘the various terms and rules of debate which Buddha adopted for his
religious sangha were those which could fit popular assemblies only and
must have already been followed by the sanghas whether political, munici-
pal or commercial’. Ghoshal appears to be right when he says, “the procedure
of the contemporary republican assemblies bore a general resemblance to
that of the Buddhist sangha, subject to such difference as is inevitable in contrast
between a sovereign political assembly and ecclesiastical gathering of monks’.

In course of time the republics found it difficult to face up to the internal

pressure of changing socio-economic conditions and the external pressures
of the rising kingdoms of Eastern India. Their proneness to succumb to such
pressures were noticed even during the life of the Buddha. On one occasion
the Buddha had remarked, “‘so long as the Vrijians hold full and frequent
assemblies; so long as they meet together in concord and rise in concord
and carry out Vrijian business in concord; so long as they enact nothing not
50 HISTORY FOR LAW STUDENTS [(CHAP.

already established, abrogate nothing that has been already enacted and act
in accordance with the ancient institutions of the Vrijians, as established in
former days; so long as they honour and esteem and revere and support the
Vrijian elders, and hold it a point of duty to hearken to their words; so long
may the Vrijians be expected not to decline but to prosper’’. The Vrijians
succumbed to the intrigues of Ajatasatru at about the time of the Buddha's
death. The same fate followed the Sakyas which never rose again.
The situation in Western India was different and they did not feel the
force of imperialism as strongly as the east. The Greek writers and generals
who accompanied Alexander on his Indian campaigns have mentioned sev-
eral such republics. Megasthenes knew clearly of the existence of republics
in his day. These accounts indicate that the major portion of the Punjab and
Sind practised republican form of government. A whole chapter in the Art-
hasastra is devoted for the description of the pluralistic forms of government
of the fourth century B.C. The existence of such states seemed incompatible
with Kautilya’s conception of the empire and he set himself to the task of
undermining their power by any means fair or foul. Some of the mighty
republics which were almost non-existent reared up their heads again, and
some of them attained highest pitch of greatness and glory after the fall of
the Mauryas. This is attested to by the Mahabharata. The section 107 of
the Santi Parva contains a remarkable dissertation on republican states and
the conditions of their welfare. Among the republics who withstood the Mau-
ryan imperialism may be mentioned the Yaudheyas, the Malavas, the Arju-
nayanas, the Sibis, etc. They ruled independently and issued their own coins
bearing the proud legend ‘Jaya Yaudheya" (Victory to the Yaudheyas),
‘Jaya Malava’ and the Malavas probably founded the era later known as
the Era of Vikrama, for several early inscriptions refer to this as ‘the Era
handed down by the Malava tribe’. But Samudra Gupta struck the republican
system and most of them became tributary to the Guptas in the middle of
the fourth century A.D. As Jayaswal aptly remarks: *‘From the Sth century
onwards they ceased to be important factors in Indian politics. The following
century saw the final exit of Hindu constitutionalism from the stage of his-
tory. All that was good, come down from the age of the Vedic forefathers,
all that progress which had been achieved since the compilation of the first
Rik, all that gave life to the mechanism of state, bade good-bye to the land.
Republicanism was the first to begin the Great Departure to lead the dirge
of political Nirvana.’* Here the statement of A.L. Basham is worthy of note:
“In any case modern Indian may take legitimate pride in the fact that, though
my POLITY IN ANCIENT INDIA 51
sense,
she may not have had democraciesin the modern government by
discussion was by no means unknown in her ancient civilisation.’’”
_~—— ———

S Se 2eCi et Sry? OF i

: g Melents eotita PVZNGEI-s-9) SA! 2o’iseinet:

mee? Sie rary, ytiaiiies es whe MRT eit Gini 2aw 1) .craent
 Chapter ITI

State and Government in Ancient

India—A survey (4th century
B.C. to 13th century A.D.)

Tre period from the fourth century B.C. to the thirteenth century
A.D. witnessed ups and downs in the political fortunes of India. It saw
the rise of two major dynasties, the Mauryas (4th century B.C. to 2nd
century B.C.) and the Guptas (4th century A.D. to 6th century A.D.)
intersected by the rule of the Bactrian Greeks, the Pahlavas, the Sakas
and the Kushanas. India saw the fulfilment of political and cultural
unification under the Mauryas and the Guptas. However, the political
unity of the country did not survive of them. The minor powers who
succeed the Guptas were so deeply involved in ambitious wars among
themselves the re-establishment of political unity remained a distant
dream. It was into this India, torn asunder politically, that the invaders
professing Islam set their feet and inaugurated their rule which was to
last over five centuries.

1. The Mauryan Polity

The formation of the state, as explained in the previous chapter, was
completed around 500 B.C. The development of a full-fledged state
system with all the four essential factors of a state, as stressed by modern
authors on political science, namely a territory, a population, unity and
organisation, in a completely evolved form, was a distinguishing feature
of the Mauryan age. According to organismic conception of Hindu
political philosophy as elaborated in the Arthasastra.of Kautilya the state
consisted of seven limbs (saptanga), each discharging the function
pertaining to it and all ultimately contributing to the sum-total. The king

according to Kautilya that we cannot conceive of a whole and entire state

without these seven components.
[ 52]
 STATE AND GOVERNMENT IN ANCIENT INDIA 53

In this scheme of Kautilya janapada denotes both territory and popu-

lation. The king represents unity, while the ally denotes an independent state.
The fourth essential requisite of a state, namely organisation, is indicated
by the fort, treasure and army. The organisation may be taken to point to
not only to the distinction between the governors and the governed, but also
to the different means which enable the former to extract obedience from
the latter.
The theory of the state in the Arthasastra is actually littlke more than
an analysis of the elements essential to the efficient operation of the political
organisation. The idea underlying the concept of the doctrine of saptanga
was that without a proper organisation a state of lawlessness (matsyanyaya)
would set in and that hinders the development of state’s personality. Hence,
Kautilya ordains that the disintegrating constituent elements should be hauled
up and none of them should be allowed to decay or deteriorate. As B.K.
Sarkar succinctly remarks: *‘In giving currency to the doctrine of saptanga,
Hindu political philosophy does not popularise an arbitrary strong system
of seven categories. It embodies really a psychological attempt to conceive
and classify political phenomena in their logical entity.’’
Kautilya, it is true, does not rank the components of the body-politic in
the order of their superiority or importance and gives priority to which ever
factor the time should dictate as being of most consequence. However, it is
evident that he considers the king, the sovereign power, the most important
of the seven components and places him at its apex. He considers harm to
the king as the most serious of the misfortunes. According to Kautilya, since
the king is the main spring of all activities in the state he becomes the soul
of the body-politic. He even goes to the extent of saying that as swamin
(the king) is the spirit of the body-politic, the latter grows or decays with
him. The king is the spirit and state is its expression. Elsewhere he says:
‘‘Everything depends upon the king. He is the central pivot as it were.’
This idea reaches its culmination when he declares that ‘the king is the .
state’. The state, then, ‘while involving seven constituent factors, according
to this view, is ultimately resolvable into one element, namely, the king that
absorbs all the rest’. Thus, in Mauryan polity the king was all powerful
though the Arthasastra lays emphasis on the conception
of the king as the
servant of the state, which, indeed, was one of the basic principles of ancient
Indian political thought.
The exaltation of royal authority is a striking feature of the nature of
the Mauryan state power. The Arthasastra_grants the king the power of
legislation
by edicts and decrees, a power which was never enjoyed by the
ate —— ri
54 HISTORY FOR LAW STUDENTS [CHAP.

king before in India, and an act approved and accepted as correct by only
one lawgiver, Narada, of later times. To quote the text: “‘Sacred law
(dharma) evidence (vyavahara), history (charita) and edicts of kings
(rajasasana) are the four legs of law. Of these four in order, the latter is
superior to the one previously named.’’! It follows from the statement that
rajasasana supersedes all other legs of authority not excluding dharma.
Although the royal edict has to take cognizance of dharma and not violate
it, ‘for the king is the promulgator of dharma, it is evident that royal inter-
pretation and even enforcement of dharma on a clean slate will modify it’.
The king will have the latitude to interpret it taking into consideration the
usages of the castes and corporations as also the changing situation. It cannot
be easily explained away that this preaching in the Arthasastra is merely
didactic, for ‘Asoka’s edicts give clear proof of the all pervading character
of royal orders touching even the social and religious life of the people’.
The Mauryan state had developed a highly organised bureaucratic ad-
ministration capable of maintaining the stability of the empire spanning the
length and breadth of the land and controlling all spheres of life. The Art-
hasastra contemplates the establishment of a large and complex bureaucracy
totally unknown to any other works on statecraft of old. It names a number
of departments, defines their rights and duties in detail and sometimes in-
dicates rules for the selection and promotion of officers, a remarkable feature
unknown to any other work on ancient Indian polity. In one passage the
Arthasastra speaks of 18 tirthas (departments) and in addition makes pro-
vision for 27 superintendents (adhyaksas). They were concerned with econ-
omic, military and social functions. Of the chief departments charged with
economic functions are those of commerce, forest, produce, weaving, agri-
culture, pasture lands, mines, oceanic mines, metals, mint, salt, wastelands,
tolls and excise. The chief military departments are those of armoury, horses,
elephants, chariots and infantry. The administration showed equal concern
for the health of the society becomes evident from the appointment of super-
intendents to control the prostitutes, gambling dens, liquor shops, etc.
The police was the most important civic-administration department. It
performed twofold functions: (1) preventing the commission of crimes and
(2) bringing the transgressors of law to justice. In pursuance of the first,
they kept a watchful eye on all suspicious characters. If they failed to trace
the thief, they had to make good the loss. In order to suppress crime the
Arthasastra advises the imposition of a stringent curfew from about two

1. R. Shamasastry, Kautilya's Arthasastra, p. 29.

IL} STATE AND GOVERNMENT IN ANCIENT INDIA 55

and a half hours after sunset to the same time before the dawn. There was
an efficiently organised espionage system and the spies in disguise helped
the police in the detection of crimes. In fact, the spies were the eyes and
ears of the executive departments.
Kautilya attaches great importance to the selection of the superintend-
ents. He lays down qualifications and prescribes rules for their promotion.
The Arthasastra says: *‘Those who are possessed of ministerial qualifica-
tions shall be in accordance with their individual capacity, be appointed as
superintendents of government of departments. While engaged in work, they
shall be daily examined; for men are naturally fickle minded, and, like horses
at work, exhibit constant change in their temper. Hence the agency and tools
which they make use of the peace and time of the work they are engaged
in, as well as the precise form of the work, the outlay and the results shall
always be ascertained.’’* Those who came out successful in the review of
their performance were considered for promotion. The Arthasastra says:
‘‘Whoever of the superintendents makes as much as, or more than,
the amount of fixed revenue shall be honoured with promotion and re-
wards.’’> Again, ‘‘those who increase the king’s revenue instead of eat-
ing it up, and are loyally devoted to him, shall be made permanent in
service’’.* The ‘king shall not only maintain his servants, but also in-
crease their subsistence and wages in consideration of their learning a
work’.° Therefore, efficiency, honesty and dedication to duty counted
most for promotion.
This highly organised bureaucracy appears to have tied up with red tape.
The Arthasastra suggests that ‘Each department shall be officered by several
temporary heads’.® This was probably intended to prevent excessive specu-
lation and to ensure that no individual officer grew too powerful. The text
further adds that the government servants ‘shall also be transferred from one
work to another, so that they cannot either misappropriate government
money or vomit what they have eaten up’.’ However, officers employed to
guard the royal buildings, forts, and country parts were not transferred. The
text states that no superintendent should be allowed to take any decision
without bringing it to the knowledge of their masters except remedial
measures against imminent dangers.®

. R. Shamasastry, Kautilya’s Arthasastra, p. 68.

. [bid, p. 69.
. [bid, p. 70.
. Ibid, p. 278.
. Ibid, p. 278.
. Ibid, p. 278.
WN. Ibid, p. 69.
MAHP
SAID
56 HISTORY FOR LAW STUDENTS {CHAP.

The Arthasastra gives detailed information about the pays of different

dignitaries and officers. The scale of pay for different categories of em-
ployees may suggest the highly hierarchical nature of the bureaucracy. Kaut-
ilya cared for the comforts of the government servants becomes evident from
the following advice to the king in the Arthasastra: ‘‘In accordance with
the requirements of his forts and country parts, the king should fix under
one-fourth of the total revenue the charges of maintaining his servants. He
should look to the bodily comforts of his servants by providing such emol-
uments as can infuse in them the spirit of enthusiasm to work.’’? The highest
functionaries such as the priest (purohita), the sacrificial priest (riftvig), the
teacher, the minister, the commander of the army, the heir-apparent prince,
the mother of the king, and the queen received 48,000 panas!° monthly. In
contrast the lowest officials even palace workmen, attendants, and body-
guards 60 panas. A messenger of middle quality was given as small a pit-
tance as only 10 or 20 panas, while a labourer on the crown lands received
only one and a quarter pana and provisions.!'! The list makes it clear that
the crown servant of ancient India, like the Indian civil servant of modern
times, enjoyed a standard of life much above that of his less fortunate fel-
lows.'* The ratio between the highest and the lowest servant of the govern-
ment therefore would work out at 1 : 48,000, which shows an yawning gap
between the two. This may be taken as suggesting a pyramidal bureaucratic
structure. All told the Mauryas created a singular bureaucratic machinery
with well trained officials to man the ship of the state. “‘It does presuppose
a large empire and a considerable amount of surplus in cash and kind for
its support. It may not be regarded rational in the modern sense of the term,
but it is not patrimonial either for it was not part of the royal household’’.!?
If bureaucracy constituted the arms of the royal power, the decisive
factor that contributed to it was the development of the coercive power on
a scale unheard of before. Pliny and Plutarch, the classical writers, record
that Chandragupta possessed 600,000 infantry, 30,000 cavalry, 9,000 war
elephants, besides chariots, the transport and commissariat corps and the
fleet. The navy, transport and commissariat were Mauryan innovations.
There were elaborate rules and regulations for the training and drilling of
soldiers and that special attention was paid by the military authorities to the

9. R. Shamasastry, Kautilya’s Arthasastra,, p. 276.

10. The pana was a silver coin with a silver content equal to 3/4s of a fola. See R.P.
Kangle, The Kautilya’s Arthasastra, Ill p. 208.
11. R.S. Sharma, op. cit., pp. 276-279.
12. A.L. Basham, op. cit., p. 102.
13. R.S. Sharma, op. cit., pp. 286-287.
(11 STATE AND GOVERNMENT IN ANCIENT INDIA 57

sick and wounded in the army and for this purpose the army was sup-
plemented by a contingent of doctors and nurses. Munitions of war were
made in state arsenals and there was state control over artisans who produced
weapons. Kautilya “‘gives a very vivid and comprehensive account of the
war machinery which by itself is the greatest tribute that could be paid to
this great Mauryan statesman, who may well be regarded as the greatest
exponent of the Forward Policy of ancient India. No political thinker before
or after him has had either the courage or the wide sweep to champion it,
and to make it the fulcrum of the existence of the state’’.!4
The army was sometimes used to quell internal revolts, but generally it
was the duty of the police and criminal administration supported by the
elaborate espionage system to suppress them. If Arthasastra is to be trusted,
the Mauryas had developed an efficient system of police, criminal adminis-
tration and espionage. Crime was suppressed through the local officers who
had a large staff of police. Watchmen kept guard through the night in the
city and villages. The state was ultimately responsible for making up all
losses due to thefts. Police headquarters were established in all the principal
towns and cities. The Arthasastra devotes a section for Kantakasodhana
(criminal courts) which differed from civil courts by their more summary
procedure and speedy disposal. They were presided over by high executive
officers. These new courts were introduced to meet the growing needs of
an increasingly complex social economy of an urban environment. Thus if
traders used false weights or sold adulterated goods, or charged high prices,
if the labour in a factory was given less than fair wage or did not do its
work satisfactorily, these courts intervened to punish the culprits. These
courts were also to implement the decisions of the bureaucracy on all matters
that were being brought under its control and regulation. Officers charged
with misconduct, persons accused of theft, dacoity and sex-offences appeared
before this court. ‘‘In much of the work allotted to them they apparently
represent an effort to safeguard at the same time both government and society
from the possible evils of the new order, in which the government control
and regulation became more far-reaching and ubiquitous, and new officers
carrying vast discretionary powers were coming into existence’’. The ela-
borate intelligence system contemplated by Kautilya was similarly intended
to keep a watchful eye and report on the criminal and anti-government ac-
tivities of the people. The spies were also an important means of keeping a
finger on the pulse of the public opinion. Isvara Topa has well said: ‘“The
idea of general espionage is not to molest and harass the people in general,

14. B.A. Saletore, op. cit. p. 440.

58 HISTORY FOR LAW STUDENTS [CHAP.

but through it the solidarity and stability of the state can be cemented with
an amalgam of public affection and contempt.’’
The officers who administered criminal law and investigated crimes
were not exclusively police officers. The officers like Pradesta performed
both police and revenue functions. Similarly, officials like samaharta, the
sthanika and the gopa performed both fiscal and police and magisterial
functions.!°
The increasingly complex social economic activities of the state coupled
with the needs of urban settlements necessitated the creation of a machinery
for the administration of the town, perhaps an innovation of the Mauryas.
Megasthenes gives a detailed description of the municipal administration of
Pataliputra. He says the city of Pataliputra was administered by a committee
of thirty members divided into six committees of five members each. Ac-
cording to V.A. Smith, these boards were an ‘official development of the
non-official panchayat’. The functions of the six boards are thus described
by Megasthenes:
‘*The members of the first look after everything relating to the
industrial arts.
‘*Those of the second attend to the entertainment of foreigners.
To these they assign lodgings and they keep watch over the modes of
life by means of those persons who were given to them for assistants.
They escort them on the way when they leave the country or in the
event of their dying, forward their property to the relatives. They take
care of them when they are sick, and if they die, bury them.
‘“‘The third body consists of those who enquire when and how
births and deaths occur with the view not only of levying a tax but also
in order that births and deaths among both high and low may not escape
the cognizance of government.
‘*The fourth class superintends trade and commerce. Its members
have charge of weights and measures and see that the products in their
season are sold by public notice. No one is allowed to deal in more
than one kind of commodity unless he pays a double tax.
“The fifth class supervises manufactured articles which they sell
by public notice. What is new is sold separately from what is old and
there is a fine for mixing the two together.
“The sixth and the last class consists of those who collects the
tenths of prices of articles of food. Fraud in the payment of this tax
was punished with death.”’
15. R.S. Sharma, p. 287.
IIT) STATE AND GOVERNMENT IN ANCIENT INDIA 59

All these six boards acting in unison were responsible for public works,
harbours, temples, etc. There were fire services and city police patrolled the
street at night. A curfew was declared and all strangers loitering in the streets
were arrested. There was some relaxation in times of festivals. Magasthenes
gives an elaborate description of Pataliputra only. It is, however, difficult
to say that all the cities were similarly administered. We can at best suppose
that all other important towns were similarly governed. Kautilya (chapter
26) also gives an account of the municipal organisation.
The Arthasastra does not envisage the involvement of local elements
in the city administration. The most important element there was the naga- _
raka, the governor of the city. His chief responsibilities were revenue col-
lection, the preservation of law and order and the supervision of sanitation
arrangements. According to Arthasastra he ‘‘shall make a daily inspection
of reservoirs of water, of roads, of the hidden passage for going out of the
city, of forts, fort walls and other defensive works. He shall also keep in
his safe custody whatever things he comes across as lost, forgotten, or left
behind by others’’.!© He was also to ensure against outbreak of fire. He was
assisted by the police, secret agents and militia which were stationed in the
chief towns in the discharge of his duties.
The nagaraka was assisted in the administration by two officials called
sthanika and gopa. The gopa was charged with the responsibility of the
collection of revenue, and the supervision of forty households each. They
kept careful note of the births, deaths, income and expenditure of the house-
holds under their charge. They also made note of the visitors that the family
received as also any important developments in households. The information
thus collected by the gopa was transmitted to the town office for permanent
recording. The sthanika attended to the accounts of the four quarters of the
town. “‘These two officials are first mentioned in connection with the rural
revenue administration. Apparently the rural system of administration was
projected on to the urban areas to meet their needs, the nagaraka being the
only officer typical of the urban areas’’.
A review of the section on the local administration in the Arthasastra
may lead one to the conclusion that it was designed to fulfil the requirements
of revenue administration. According to the same source samaharta (col-
lector general) assisted by pradesta (commissioners) was in supreme charge
of revenue assessment. Sthanika and gopa, who were primarily officers in
charge of rural administration, were made responsible for assessment by

16. R. Shamasastry, op. cit., p. 162.

60 HISTORY FOR LAW STUDENTS [CHAP.

carrying out census for the purpose, collection of revenue in addition to

enforcing law and order in the locality entrusted to their care. A new set of
officers called antamahamatras were appointed by Asoka to persuade the
border people to turn away from evil ways; otherwise he reserved for himself
the right of using might to establish right (righteousness).
India had evolved a regular system of taxation before the Mauryan
period. But the significance of the Mauryan period lies in the fact it formu-
lated a ‘most comprehensive and probably the world’s most ancient theory’
of public finance. Kautilya makes, for the first time, a distinction between
war and peace economy. They were governed by the same dictum ‘that
every undertaking depend upon finance’. And the success of the adminis-
tration depends on the treasury. Kautilya also demonstrates great ingenuity
in devising and justifying means for augmenting the wealth of the state. He
does not neglect any source because of its smallness and leaves almost noth-
ing out of taxation. He brings the rural and urban areas, the peasants, artisans
and traders under the tax net. The manual labourers had to work in the state
farms for one day in a month. The sannidhata (the custodian of the treasury)
and samaharta (the chief revenue collector) were the important officials of
the finance department. It is indeed worthy of note that the assessment ma-
chinery appears for the first time in the Maurya period.!’
The list of taxes and imposts and the acquiring of wealth for the state
by a number of questionable techniques must have proved oppressive. It
was Kautilya’s view that ‘while the state has its right to the golden egg, the
goose must be protected’. As he puts it: ‘‘Just as fruits are gathered from a
garden as often as they become ripe, so revenue shall be collected as often
as it becomes ripe. Collection of revenue or of fruits, when unripe shall
never be carried on, lest their source may be injured, causing immense
trouble.’’'® Kautilya advocated gradual system of taxation. Traders were
taxed not on their gross earnings but on net profits, and article was taxed
only once. In spite of this the state’s income was perhaps found to be
inadequate to meet the cost of maintaining a large force, which accounted
for more than half of the revenue expended, and the establishment of
bureaucracy. This explains state’s participation in economic matters like
the reclamation of virgin land, exploitation of mines and the running of
goldsmith’s shops, liquor shops and weaving concerns, all being done
under its aegis.

17. R. Shamasastry, op. cit., p. 160.

18. Ibid, p. 276.
 IIT} STATE AND GOVERNMENT IN ANCIENT INDIA 61

The Mauryan state laid greater emphasis not only on the collection of
revenue but also on the management of the finance. Kautilya speaks of the
corruption of the officials. The Arthasastra says: ‘‘Just as it is impossible
not to taste the honey or the poison that finds itself at the tip of the tongue,
SO it is impossible for a government servant not to eat up, at least, a bit of
the king’s revenue, just as fish moving under water cannot possibly be found
out either as drinking or not drinking water, so government servants em-
ployed in the government work cannot be found out (while) taking money
(for themselves).’’!° Again “‘it is possible to mark the movements of birds
flying high up in the sky: but not so is it possible to ascertain the movement
of government servants of hidden purpose’’.”° He therefore advises the king
to be meticulous in the choice of his officials. He further advises the king
to attend to the accounts of receipts and expenditure daily and set right the
imbalance, if any.
This description of the Maurya polity will show that the Mauryan empire
was the first attempt in India to assure administrative centralisation on an
extended scale. Kautilya’s ‘system of administration is highly centralised;
he recognises the need for uniformity in administrative institutions,
and he
is careful to prevent the ambiguities that arise from divided sovereignty’.
_ We get a complete picture of the administration of provinces (Janapadas)
and the districts, but little attention was given to villages’ institution. The
scanty evidence pieced together appear to suggest that the village council
enjoyed autonomy in the supervision of local affairs. The guilds which en-
Ei"

joyed some autonomy were placed in the service of the state. Asoka shows
traits of decentralisation when he granted large executive and judicial powers
to the rajukas. Kautilya, as an apostle of monarchic cult strengthened the
royal power by vesting in him enormous power. But in tracing the problems
of the state to the shortcomings of internal administration Kautilya was not
influenced by ‘the Achaemenid and Ptolemid model’.

2. Polity in the post-Maurya period

The post-Maurya period reveals interesting developments in political,
social and economic spheres. It was an age of triumphant brahmanism as
the founders of the Sunga and Kanva dynasties, who succeeded the Mauryas,
in north and the Satavahana dynasty in the Deccan, were brahmanas. The
brahmanas began ascribing divine attributes to the king and this ‘created a
fertile soil for the germination of foreign ideas on divinity brought by the

19. R. Shamasastry, op. cit., p. 70.

20. bid, p. 70.
62 HISTORY FOR LAW STUDENTS [{CHAP.

Scythians’. The Mauryas spread the use of coins which facilitated trade and
commerce as is evidenced by the brisk and favourable trade that the Sata-
vahanas had with the Greco-Roman world. The Indianisation of the foreign
hoards like the Bactrian Greeks, Scythians, Parthians and others led to the
rise of mixed castes, which Manu puts around sixty and he also ‘legalised
the wide proliferation of the caste systems’. These developments determined
the contours of the polity of the period.

The Satavahana Polity

The Satavahanas, who filled the vacuum created by the decline of the
Mauryas in the Deccan, established an extentive empire which extended up
to Sanchi in the north to Konkan in the south and up to the sea in the west
and east. They were the first Deccan power to establish their supremacy
over North India and to bring about an integration between North and South
India. This dynasty which endured for more than four centuries witnessed
intense commercial activity between India and the western world, which
contributed largely to the economic prosperity of land. There was an outburst
of artistic activity and the Buddhist art reached its great height during the
period. There is no wonder that the memories of these great achievements
are enshrined in the Saka Era of 78 A.D.
The system of governments under the Satavahanas was but a continu-
ation of the traditions established by the Mauryas with some striking inno-
vations. The discovery of the Minor Rock Edicts of Asoka in Karnataka and
Andhra Pradesh and a fragment of the pillar inscription at Amaravati (also
in Andhra Pradesh) proves the familiarity of the Mauryan system of gov-
ernance to rulers in the Deccan. The king was the hub of the administration.
They had, in addition to the ancient title of rajan, the title of swamin.
Gautamiputra Satakarani is called Rajrano i.e., ‘king of kings’. The king
was the supreme commander of the armed forces and he led the army in
person to the battlefield. He was also the fountain head of justice. The
qualities of the head and heart of Gautamiputra Satakarani as given in the
Nasik inscription of Balasri, the queen mother, may be taken as representing
the true characteristics of the Satavahana kings: ‘‘He (Gautamiputra) was a
model hero rivalling the achievements of the greatest kings known to history
and legend. Above all, he was the ideal king granting boon of fearlessness
to others, refraining from all injury to life, even that an offending enemy,
identifying himself with the joys and sorrows of his subjects, levying and
spending taxes justly and checking the contamination of the four varnas.”’
The Satavahana rulers were well educated in the Kautilyan system of
education for the princes. That they conformed themselves to the precepts
{II} STATE AND GOVERNMENT IN ANCIENT INDIA 63

of royal activity as laid down in the Arthasastra of Kautilya becomes evident

from the Nasik Cave inscription (No. 2). Gautamiputra Satakarani is said to
have “‘properly devised time and place for the pursuit of the Tivage (tri-
varga) and sympathised fully with the weal and woe of the citizens’’. Like
the Mauryan kings the Satavahana rulers concerned themselves with both
the material and spiritual welfare of the people. Though the Satavahana rulers
assumed matronomic prefixes (e.g. Gautamiputra, Vasisthiputra), the suc-
cession to the throne was hereditary in the male line. An important and
original feature of the Satavahana administration was the association of
queens in public life. Queen Naganika acted as regent on behalf of her son,
Vedasri. Queen Balasri, mother of Gautamiputra Satakarani, jointly issued
orders to a district officer to institute a charitable endowment.
The king was assisted by a council of ministers whose number is not
known. The scanty information in the inscriptions when pieced together in-
dicates the existence of the central services. It consisted of such royal officers
as amatyas (amachas) who acted as the governors of the aharas (districts):
the rajamatyas who attended on the king and were members of the advisory
body: a mahamatra who was entrusted with the execution of a special task;
the bhandagarika or the superintendent of the stores; the heranika or the
treasurer; the Mahasenapati or the commander of the army: the lekhaka or
the secretary of state who drafted the king’s documents and the nibandha-
karas who were charged with the task of registering the documents.
The post of the amatya was not hereditary and they were frequently
changed. The work of the mahamatra is not clearly defined. There is a
recorded instance of a mahamatra being placed in charge of Buddhist
monks. The mahamatras were neither widespread nor important during the
Satavahana period. The appointment of mahasenapati dates from the time
of Gautamiputra Satakarani and his son, Vasisthiputra. Sometimes, the ma-
hasenapati acted as governor. The existence of these officials and the de-
tailed procedure that was followed in respect of the registration of official
documents go to show that the Satavahana rulers attended to the minute
details of the administration so as to make it sound in all respects. They
must have maintained all ‘‘essential departments such as those of police,
finance, justice, army, commissariat, agriculture, industries, etc., although
contemporary inscriptions do not actually refer to any of these’’.”!

21. G. Yazdani (ed), The Early History of the Deccan, Vol. 1, p. 135.
64 HISTORY FOR LAW STUDENTS [CHAP.

The officials of the state were paid mostly in cash and possibly in kind
as well. The discovery of sack-fulls of lead, potin, copper, and silver coins
suggests the payment in cash. The numerous Roman gold coins which the
favourable trade brought to the Satavahan country ‘may have been used for
large scale transactions or as bullion’. Land tax and the taxes levied on
artisans and merchants constituted the major source of income to the state.
They were collected both in cash and in kind. Salt was a monopoly of the
State.

The empire was divided into various divisions such as aharas like So-
parahara, Govardhanahara, Mamalahara, Satavahanahara, etc. The aharas
correspond to the rashtra of the Pallava records. They were in charge of
the officers called amachas (amatyas) or the governors. We do not get
adequate information regarding their administration in the inscriptions. The
aharas were further divided into nigamas as (towns) and gamas or gramas
(villages). The nigama had an assembly called nigamasabha which acted
as the mouthpiece of the citizens. The merchants and some gahapatis were
the members of the nigamasabha. It is worthy of note here “‘that perhaps
at no other time in ancient history do epigraphic records and excavations
reveal so many towns in the Deccan, especially in Maharashtra, as in the
first two centuries of the Christian era. Apparently merchants did not par-
ticipate in civic life on such a scale in ancient India as they did in the
Deccan during this period. With the evidence from the guilds of traders and
artisans, commonly mentioned as seni or sreni and nikaya in inscriptions,
the whole thing adds up to an unprecedented burgeoning of civic life under
the Satavahanas’’.22
The Nasik and Junnar inscriptions refer to various classes of workers
such Kularikas (potters). Odayantrikas (makers of hydraulic engines)
Dhanikas (corn dealers), Kolikas (weavers), Vasakaras (bamboo workers),
Kasakaras (braziers), etc. These crafts were organised by their own guilds.
The guilds had their own laws that were binding on its members. The regu-
lation of the guilds had the force of law and the king was obliged to take
cognisance of these rules in the administration of justice. By their honest
dealings the guilds were able to win the confidences of the public. They not
only served the interests of trade and commerce, but also possessed banking
facilities. They accepted deposits from members of the public and also acted
as trustees. The Nasik inscription records two investments made with the
guilds. According to the records Usabhadata made a permanent investment

22. R.S. Sharma, op. cit., p. 207.

(11) STATE AND GOVERNMENT IN ANCIENT INDIA 65

of 200 kahapanas at 1% interest per month and another 1000 kahapanas

at 3/4% interest per month for supplying ‘to everyone of twenty monks
twelve kKahapanas as cloth money’, and the rest to meet their other sundry
expenses of the monks out of the interest. The deposits served as capital of
the guilds which they lent in turn to commercial enterprises. ‘‘The guilds
must have been long standing’’, writes R.C. Majumdar, ‘‘and their operation
characterised by honesty and fair dealing, for otherwise men would scarcely
have perpetual endowments with them’’. Guilds also made gifts of their own
to religious institutions and participated in various kinds of social services.
It is natural to expect that these merchant bodies participated in the admin-
istration of towns to protect their own interests. These guilds disappear from
the scene with the fall of the Satavahanas only to emerge towards the end
of the sixth century A.D.

The villages were in charge of traditional headmen who are referred to

as gramanis in Hala’s Gatha Sattasai (Gathasaptasati). They looked after
the administration of five villages and sometimes ten villages.
The Satavahana feudatories were of three grades. The highest among
them was called raja. He occupied more or less the same position as that
of the king. He also issued coins in his own name. Next to them in status
were the mahabhojas and maharathis. This was confined to a few families
of the eastern Deccan who held office on a hereditary basis. They enjoyed
a rank and power much higher than the amatyas. The ‘titles were held to
be such a patent nobility that the wives regularly took the titles of their
husbands’. This becomes evident from the Karle and Kuda records which
record the gifts made by mahabhogis and maha rathinis, wives of mahab-
hojas and maharathis. The Nagarjunakonda inscriptions are interesting as
they refer to mahasenapati and mahatalavara titles which were borne by
ladies. This may indicate the important role that women played in the system
of government of the Satavahanas. The maharathis were in charge of the
local administration of the country above the Western Ghats, while the ma-
habhojas \ooked after Northern Konkan. They performed different kinds of
duties. Some exercised power over the locality under their charge and others
looked after the administration at the centre.
Another feature of the Satavahana system of government is the use of
the title maha (great ) by the state officials, including the feudatories as
shown above. R.S. Sharma thinks that the ‘‘use of the prefix maha introduces
graded and unequal relationships and marks the beginning of the titles which
became popular in feudal hierarchy in the early medieval period’’.~

23. R.S. Sharma, op. cit., p. 210.

 66 HISTORY FOR LAW STUDENTS [CHAP.

A description of the Satavahana administration will be naturally sketchy

due to the paucity of sources. What has been stated above will show though
they modelled their system of government on the Mauryan tradition they
introduced several innovations. Among the most important ones mention
may be made of the association of women, particularly queens and the wives
of high official dignitaries, and the merchant bodies in the administration,
entrusting the rural administration to military men and granting of adminis-
trative and fiscal immunities to the beneficiaries of the village grants. In
short, the Satavahanas were successful in establishing a sound system of
administration which ensured a long period of peace in the country which
in turn gave tremendous impetus to the cultural progress that the period
witnessed.

The Kushana Polity

The Kushanas, who built up a vast empire comprising of the old king-
dom of Bactria, Kashmir, Punjab.and parts of Central Asia and who restored
the partial ‘political unity of northern India, found it difficult to dévise an
administrative system to administer efficiently the vast extent of territory.
The extremities of the empire separated by long distances, which in those
times was a reality, of which it is difficult to gain a vivid conception in this
‘‘flying age’’, made it difficult for the Kushanas to experiment with Mauryan
rigid centralisation. In the circumstances they put into practice a decen-
tralised scheme of administration with powers distributed among different
units forming administrative hierarchy. This scheme of polity did not erode
the authority or affect the powers of the king who remained absolute.
The Kushanas introduced an exalted conception of kingship in India
and assumed grandiloquent titles. Kujula Kadphises, the founder of the Ku-
shana dynasty in India, first took the humble title of yuvaga (a small chief),
but later on, with the expansion of his power, used such imperial titles as
maharaja, mahanta and rajatiraja. His son, Wema Kadphises bore more
high sounding titles like Basileos, Basileon and Megas in Greek, and ma-
harajasa, rajadhirajasa, sarvaloga isvara, mahisvara and Tradara in
Prakrit. In the Mathura inscription he is described as devaputra and sahi,
Kaniska bore the proud title shaonanoshao. On some of his coins are found
/ the titles of maharaja, rajatiraja, sahi, kaisera and devaputra.
{ The Kushana state established absolute monarchy and the kingship was
\ centr round divine
ed Tight theory. Thee
grandiloquent titles assumed by the
rulers of this dynasty suggest a lofty idea of the royal office. It is interesting
to note that their Buddhist leanings did not prevent them claiming deification,
a
IIT} STATE AND GOVERNMENT IN ANCIENT INDIA 67

calling themselves as ‘sons of Heaven’, devaputra, which appears to be a

Parthian title. ‘‘Apparently, when Parthia had been conquered by the early
Kushanas, the Parthian titles and dominions alike were appropriated by Ka-
niska and his successors... in course of time the title came to be used as an
important political weapon’’.”4
Kushana rulers claim to divinity is seen in their starting the practice of
setting up devakulas in which the statues..of..their deceased rulers were
preserved and worshipped as those of gods. In this they were following the
Roman practice. The concept of divine right theory is further borne out by
the evidence of numismatics: ‘‘on the gold pieces of Kadphises II the
shoulders of the king are surrounded by luminous rays or flames, and his
bust appears to issue from the clouds like the gods of Greece’’. The nimbus
appears only on some pieces of Kaniska. On certain gold pieces of Huviska
the sovereign is at once ornamented with nimbus, flames and clouds. Va-
sudeva had simply the nimbus round his head which is itself surrounded by
a pointed tiara. The nimbus, it may be noted, was associated with the di-
vinities. In reality, the grandiloquent titles they used, and their claim to
divinity do not indicate greater royal authority. On the other hand, ‘‘just as
the high sounding titles of the Kushana rulers indicated nothing more than
the reality of decentralisation, so also the devise of deification was nothing
more than an attempt to conceal and remove their political weakness’’. In
other words, these titles indicate the feudatory character of the Kushana
polity and points to the existence of lesser kings and chiefs in the Kushana
kingdom who stood in the relation of feudatories to the overlord called vari-
ously as maharaja, rajatiraja, etc.
The political system of the Kushanas was thus based on the principle
of decentralisation where autonomous afd semi-autonomous states survived
within the kingdom. Wehardly"étany reference
to administration at the
centre or to council of ministers. The primary function of the central gov-
ernment seems to offer proper defence. The government made elaborate sys-
tem of stationing gu/mas or military cantonments in the midst of 2, 3, 5 or
100 villages. There appear to have existed no line of demarcation between
the civil and military establishments.
The Kushanas do not appear to have evolved any sound provincial add
ministration. In the formation of the provinces no regard was shown either
to geographical contiguity or revenue yield. Moreover, there is nothing to
suggest whether they had any direct administrative control over them. The
Kushanas continued the satrapal system of administration which was intro-

24. R.S. Sharma, op. cit., p. 230.

68 HISTORY FOR LAW STUDENTS [CHAP.

duced in India by the Scythians. The head of the satrapy enjoyed the title
of ksatrapa and mahakshatrapa. There are instances of two Ksatrapas tul-
ing over the same province conjointly enjoying equal status. This scheme
was devised so that one acted as a check on the power of the other. The
working of the system must have revealed the deficiency in the scheme and
we find later that one of them being promoted as mahakshatrapa and mak-
ing the other to assist mahakshatrapa in administrative work. There are
some instances of the vanquished chiefs being reinstated as ksatrapa. But
the general rule prevailing at that time favoured direct appointment of the
provincial governors (ksatrapas).
The sources are not helpful to determine the exact number and the char-
acter of the satrapis in the Kushana empire, although it is suggested by B.N.
Puri, that the empire was divided into five or seven satrapies. Hardly we
have any details about their administrative functions. Unlike in the Mauryan
period the salary of the governors and other officials were not fixed. It is
possible they were supported by the revenue of the janapadas after defraying
the royal dues. This can be inferred from the designation of gramasvami
of a kshatrapa in a Peshawar inscription, probably the officer acted as an
intermediary between the village headman and the king, realising royal dues
from the villages. The Kushana rulers took every measure to prevent con-
centration of powers in the hands of the satraps.
There are references to viceroyalty. The viceroys were generally army
leaders having command and control over the forces. They seem to have
enjoyed independent status in internal affairs. In fact, Kaniska was the Vice-
roy of the Punjab before he succeeded to the throne. Under Kadphises group
of kings they issued their own coins.
The term dandanayaka is frequently used in its different forms in the
inscriptions. Probably they were entrusted with the task of governing differ-
ent territorial units. They seem to have been placed in charge of judicial
and police administration. Some scholars surmise that dandanayakas were
feudatory chiefs appointed by the king and showing allegiance to him. They
were to render to their superior lord both civil and military services. B.N.
Puri thinks that they must have lived in the court of the king discharging
both civil and military functions of the state. In exchange for their services
they rendered, they were granted an enjoyment of revenues collected from
a territorial unit. The possibility of their salary being paid in cash cannot
be ruled out in view of the extensive Kushana coinage. It seems, however,
likely that the higher officials used to receive king’s grant of fiefs, while
the subordinate officers were paid in cash.
{IT} STATE AND GOVERNMENT IN ANCIENT INDIA 69

Inscriptions are silent about the urban administration. Nevertheless, the

existence of numerous cities and towns are known. The cities arose out of
military necessity and they must have served as centres of trade as well.
The Kushana inscriptions refer to the guilds (nigamas) and they must have
participated in the city administration. In any case, cities do not appear to
have enjoyed local autonomy.
The Kushanas adopted the Indian ideal of least disturbance to the people
of the villages who flourished under their own headman, gramika, whose
office was generally hereditary. Villages had their autonomy and appointed
officials without any interference from the central government. Gramika
was primarily a revenue official connected with the collection of revenue.
We have hardly any information about the land system.
It is seen from what has been surveyed the Kushanas introduced certain
new elements — like ‘the practice of making gifts for the spiritual or physical
well-being of the king and the dual governship in the provinces’ as also ‘the
organisation of the hierarchical feudatory system’ — in Indian polity. The
last element along with the idea of divinity of the king did impress Samudra
Gupta, while the first two elements did not survive the Kushanas.”°
The Saka dynasty, generally known as the Western Satraps, who gained
control of Kathiawar and Malva, came to prominence under their greatest
ruler, Rudradaman I. He was a benevolent king with intense love for hu-
manity. This has been attested to by his exceptionally important document,
the Girnar Rock Inscription. The inscription speaks of the reconstruction of
embankment to Lake Sudarsana, providing the funds from his own purse,
to remove the despair of the people.
The inscription gives welcome clues to the administrative abilities of
the rulers. The princes appear to have been trained in the science of polity.
As a writer points out, the fact that they attached much importance ‘‘to train
the occupant to the throne, the employment of officers endowed with min-
isterial qualifications, the classification of ministers and other high officials...
clearly shows that the teaching of the writers of treatises in polity was not
lost upon the Schythian conquerors of India’’. The truth of this statement is
attested to by the Girnar inscription.
The Girnar inscription informs us that Rudradaman was elected as king.
But how and in what manner he was elected is nowhere indicated. This
perhaps suggests that Rudradaman established a constitutional type of mon-
archy. There was the ministerial council which checked royal absolutism.

25. R.S. Sharma, op. cit., 234.

70 HISTORY FOR LAW STUDENTS [CHAP.

The mentioning of two types of ministers, matisachivas (counsellors) and

karmasachivas (executive officers) in the inscription is very significant. This
clearly shows that there were two kinds of ministers. The first class of min-
isters, matisachivas, concerned themselves in formulating policy for good
governance while its execution was left in the hands of executive officers
or karmasachivas. Rudradaman thus evolved a right tradition for the proper
administration of the state.
Rudradaman was just in the administration of finance. He imposed
moderate taxes on his subjects, a welcome change from the days of the
Mauryas. The emergency tax called pranaya and forced labour (visti) are
said to have been in operation in the dominion of the Western Satraps.
Thus the stages in the development of polity in the post-Mauryan period
show that centralisation which was a characteristic feature of the Mauryan
polity yielded place to decentralisation and the large bureaucracy which
manned the ship of the Mauryan state done away with as the kingdoms
which were small found it difficult to maintain it. The economic activities
and a good part of administration of the state were now taken over by the
merchant bodies in the urban areas and by the religious beneficiaries in the
rural areas. These developments paved the way for the feudal traits of the
Gupta polity.” ,

The Gupta Polity

~ A meaningful study of the Gupta polity has to take note of certain
important developments in economic, political and religious spheres which
influenced its contours. ‘‘The chief element’’, points out R.S. Sharma, ‘‘in
the economic background of the Gupta polity was the excessive preoccupa-
tion of the people with land’’. The state which had chalked out a detailed
programme for increasing agricultural output extendedthe area under culti-
vation oarents
by granting Iands wk to
Sennen neem
“brahmanas
wre oe ae
in backward
:
areas’. The state also
recognised the private rights in land and permitted the sale and purchase of
land for purposes of religion. In fact, the grants made in North Bengal were
the results of sale transactions made by individuals. These changes were
approved by the law-givers who also framed rules to settle disputes relating
to law. Naturally, the administrative structure came to be affected by the
land grants and what was more, grants of villages t6 religious beneficiaries
which’ cartied,
in addition to tax, administrative immunities as well made it
necessary to evolve new fiscal and administrative arrangements. In other
words, the administrative structure had to be so esigned as to
accommodate
this emerging new phenomenon.

26. R.S. Sharma, op. cit., 298.

11) STATE AND GOVERNMENT IN ANCIENT INDIA 71

The development in money economy gave impetus to both internal and

overseas trade. The defeat of the Sakas and the extension of the Gupta empire
to the western sea provided the much-needed outlet to the sea. India traded
with China, Indonesia and Sri Lanka. Though there was decrease in the
volume of trade with the outside world, arts and crafts made rapid strides
under the protective umbrella of their respective guilds. The guilds emerged
‘as a leading factor at the local levels of the Gupta government’.
A fact of chief importance in the political situation of Gupta period was
the establishment of political unity in the country by the digvijaya of Sa-
mudra Gupta and the expeditions of Chandra Gupta II in Western India. It
now became necessary to evolve a kind of relationship between the Victor
and the Vanquished. According to Allahabad Pillar inscription the digvijaya
of Samudra Gupta was marked by three distinct features: grahana (capture
of the enemy), moksa (liberation), and anugraha (granting favours to them).
In his Aryavarta (north India) expedition he followed a policy of violent
extermination of vanquished rulers and annexation of their territories to his
empire; capture and reinstatement after the vanquished accepted his over-
lordship in the south (daksinapatha); parichara or service in the border
kingdoms, the renewal of old royal families which had been ruined and the
restoration of all wealth captured to many kings.
_The assumption of high-sounding titles such as maharajadhiraja, —
rajadhiraja, paramarajadhiraja, “yajadhirajarshi, “and rajarajadhiraja,
coupledwith that of paramadaivata, parameswara, paramabhattaraka has
led scholars to surmise that.these titles emphasise the divine nature of the
monarchy. The reference to Samudra Gupta iinthe Allahabad Pillar inscrip-
tion as a god dwelling on earth, and a mortal only in celebrating the rites
of the ‘observances of mankind’,
m and the description in the later genealogical
account as ‘equal tothegods Dhanada (Kubera), Varuna, Indra and Antaka
(Yama)’, ‘who had no antagonist of equal power in the world’ and ‘who
was the battle-axe of the god, Kritankata (Yama)’ point in the same direction.
But the actual working of the government suggests that the Gupta kings
were no despots or absolute monarchs. They respected the established laws
and customs of the land. They were cultured and observed virtuous conduct
and self-restraint. Moreover, the Gupta king was not an unbridled one. He
was not a ete but was only an administrator of law. Theoretically... he
plata by the smritis, though, in actual practice the
brahman e interpreters of law, acted as a check on royal power. The
king had to contend with the merchant and craft guilds which had a legal
status whose laws and usages were binding on him, and the beneficiaries
72 HISTORY FOR LAW STUDENTS [CHAP.

and feudatories who wielded considerable power. His authority was thus
circumscribed by these checks.
The Kamandaka Nitisara leaves us in no doubt about the existence of
the mantriparishad which also acted as a check on the despotic activities
of the king. The posts of the council of ministers were hereditary, because
it was thought the hereditary principle brings with it the tradition of learning
and genius. The mantrimukhya or the Prime Minister presided over the
deliberations of the council and informed its decision to the king. It appears
that there was no clear-cut division of military and civil offices. For instance,
the composer of the Allahabad Pillar inscription, Harisena, was himself a
Kumaramatya, mahadandanayaka and sandhivigrahika. It has been argued
that this fact may indicate that either a minister was transferred from one
portfolio to another or that one minister was in charge of more than one
department.
High functionaries in general are often referred to under Asoka as ma-
hamatras, and from Gupta times onwards as Kumaramatyas or ‘‘princely
ministers’. They were attached to the emperor or to Yuvaraja and to the
bhuktis. They had their own grades becomes evident from their seals. The
ordinary Kumaramatya had a seal with the figure of Lakshmi and dwarfs
holding money bags. Higher than him was Yuvaraja padiya Kumaramatya
with seals of Lakshmi and elephants. Superior to him was Yuvaraja bhat-
taraka padiya Kumaramatya with the seals of Lakshmi, elephants and
dwarfs. Over all these was paramabhattarakapadiya Kumaramatyadhika-
rana. Sandhivigrahika dealt ‘‘with the feudatories who may have been
granted charters. And hence he may have been given the task of issuing
charters to religious parties also’’.
The Guptas maintained a well-equipped and strong army. The existence
of a separate war cabinet suggests that the kings were keen on maintaining
efficiency in the army organisation. They also possessed a fleet. The war
office looked after the limbs of the army in addition to the commissariat
and admiralty. The Gupta records refer to a number of army officers. The
mahabaladhikrita was the commander-in-chief of the army; the mahaba-
ladhyaksa, the superintendent of the army who supervised and controlled
the armed forces; mahasarvadandanayaka, the supreme commander and
controller of sarvadhyaksas and baladhikarana, an army officer. The dif-
ferent limbs of the army had their own chiefs. Thus pilupati was the com-
mandant of the elephant corps; and asvapati was in charge of cavalry,
Ranabhandaraka was in charge of war finances. The entire military estab-
lishment was his responsibility.
 [11 STATE AND GOVERNMENT IN ANCIENT INDIA 73

There was no elaborate system of taxation during the Gupta period. The
primary source of revenues was no doubt the land tax. The land tax was
not uniform due to the existence of different kinds of land. We know only
of two specific kinds of land taxes, namely bhaga, a tax paid by the private
land owners and bhagabhoga, a tax paid on crown lands. Merchants, arti-
sans, traders and wealthy classes paid taxes. To these sources may be added
income from mint, booty from war and tribute paid by the feudatories. It
appears the taxation system was very light as the Guptas did not maintain
a large administrative establishment.
Credit must go to Guptas for evolving ‘the first systematic provincial
and local administration, which was primarily concerned with the collection
of revenues and maintenance of law and order’. The empire was divided
into bhuktis like Therabhukti, Nagarabhukti, Pundravardhanabhukti, etc.
They were further subdivided into Visayas like Lata, Tripuri, Arikina, Gaya,
Kotivarsa, etc. The bhuktis were placed in charge of governors called up-
arika maharajas, who were appointed by the king. The Visayas were earlier
headed by Kumaramatyas and later by Visayapathis.
There was a body of officers to man the administration of the district.
Each officer was in charge of a department and all of them constituted
Visayadhikarana. These officers were: saulika or the superintendent of tolls
and customs; agraharika or officer in charge of special agraharas; gaul-
mika or superintendent of forests and woods; dhruvadhikarana or superin-
tendent for the collection of royal share of the produce of grain;
bhandagaradhikrita or officer in charge of district treasury and utkhetapita
or collector of taxes.
The number of cities in the districts like Pataliputra, Ayodhya, Ujjain,
Dasapura,»Girinagara, etc., hada similar system of administration. Thecities
iad their_o s. The advisory council con-
sisted of representatives of the different interests of the locality. The Damo-
dar Copper plate inscriptions list the representatives of the following
interests; nagarastrestin (chief of nigamas of bankers), sarthavaha (chief
of caravan traders), prarthamakulika (representatives of the guilds of craft-
smen) and prathamakayastha (chief of the superintending and clerical staff).
The important function of the city council was the improvement of civic
amenities. The council considered applications for sale and grant of fallow
land. It had a vital say in the rural affairs. They supervised law and order,
economic and other corporations, civic life and clerical business. They were
controlled by the central government through its representative purapala
74 HISTORY FOR LAW STUDENTS [CHAP.

uparika, Hence the statement: ‘“The Gupta administration was a partnership

between the city bourgeoisie and the civil servants.’’
The prominent role that the guilds of artisans and merchants played in
the urban administration and other evidence like the seals and inscriptions
point to their flourishing age. The Mandasor inscription deals with a guild
of silk weavers who first lived in Lata (Gujarat) and subsequently, at the
invitation of the Gupta kings, migrated as a body to Mandasor. Besides their
hereditary occupation, they were proficient in archery, astronomy, etc. The
Kula, sreni, gana represented various grades of guild organisations. The
titles like dasa, datta, nandin, pala, sena, simha and the like indicate that
members of the different castes were admitted into the guild. The guild was
designated by the name of the headman.
The merchant or the craft guild had a legal status. It could possess
corporate property and even make its own rules and regulations so far as
they were not against the law of the king or the dharmasastras. The guild
could appoint honest men by election as its executive officers to punish
transgressors. The general body of the guild could elect the President and
the executive officers and could remove them if they were found guilty. If
the officer proved to be too strong the guild appealed to the king. The king
could step in only when the assembly found itself unable to punish its of-
ficers. The king could also interfere to prevent unlawful combinations, strikes
and fighting among themselves or when the guild undertook works opposed
to the general public interest. As a fully organised body, it gave bonus,
leave, pensions, provident fund, etc., for the workers. It fixed a fair price
according to the quality of the products. All the products were impressed
with the guild seal. A minimum wage level was fixed to maintain a com-
fortable standard of life and in case of accidents the family of the dependents
of the workers were taken care of by the guild.
Visaya was divided into vithis. The administration of the Vithi was
conducted by a committee consisting of members representing landed and
military interests. The committee supervised law and order and settled local
disputes.
The last unit of the administration was the village. The villages enjoyed
considerable amount of autonomy. The head of the village, gramika, carried
on the administration with the help of a body of local officers and an as-
sembly of the villagers. It was the business of the gramika to guard the
boundaries of the village by erecting boundary pillars and maintaining them.
He also rendered assistance in the collection of taxes. The post of the
gramika was hereditary. The Gupta records speak of a number of officials.
IIT} STATE AND GOVERNMENT IN ANCIENT INDIA 75

They include talavataka or the watchman of the village, aksapatalika or

village accountant, simakarmakara or official in charge of the maintenance
of boundary, pramatri or surveyors and measurers, karanika or records of-
ficer and pattika or collector of market dues.
The provinces that were not annexed to the empire were ruled by their
respective rulers who accepted the suzerainty of the emperor and agreed to
pay annual tribute. The feudatories were variously called as nripa, nripati,
parthiva, maharaja and later as mahasamanta, etc. The suzerainty of the
emperor over the feudatories was more nominal than real. The vassals (feu-
datories) were required to attend imperial court once a year and pay tributes.
They maintained their own officer at the imperial court. Sometimes they
gave their own daughters in marriage to the imperial house. Excluding
foreign policy, they were free to organise internal administration of their
respective provinces in any manner they desired. The emperor rarely inter-
fered in their internal administration unless it was prejudicial to the interest
of the empire.
The administration of justice was the most important duty of the king.
The Gupta rulers were conscious of this chief function of theirs and admin-
istered the law without in the least violating the spirit underlying it. There
were gradation of courts, from the chief courts to the local courts. A clear
demarcation was made between the civil and criminal courts. The court was
the sabha presided over by pradvivaka (chief justice). Below them were
courts of amatyas, sainika, kula, sreni, gana and of merchants. Local courts
dealt with civil cases.
A feature of the Gupta judicial administration was the prevalence of
arbitration of justice. It conferred two important advantages: 1) the experts
in law examined the cases and settled disputes that came up before the
courts, and 2) it reduced litigation.
The tone of the criminal administration under the Guptas was not as
rigorous as that of the Mauryas. Kamandaka says: ‘“The king can no longer
hope to control his subjects without punishment than a fisherman can hope
to catch fish without a rod. But punishment must be proportionate to the
offence if the king is to be feared and respected.’’ Again, ‘‘inflicting pun-
ishment heavier than the offences, a king terrifies his subjects, while dealing
out lighter ones, he is held in contempt by them. Therefore, a monarch
should impartially meet out punishments proportionate to the offences’’. The
Guptas gave up the use of ordeals. According to Fahien, ‘“The king in his
administration uses no corporal punishments; the criminals are merely fined
according to the gravity of their offences. Even for a second attempt at
76 HISTORY FOR LAW STUDENTS [CHAP.

rebellion, the punishment is only the loss of right hand.’’ The statement
brings forth the mild and benevolent character of the Gupta judicial admin-
istration.
In matters of judicial administration Gupta period marks an important
phase especially in the growth of law. The growth of customary law and
the formulation of law by interpretation are to be assigned to this period.
‘It is significant to note that the separation of judiciary from executive
which is being tried today was already in vague during the Gupta period’’.
The account given above bears ample testimony to the high level of
efficiency attained by the Gupta monarchs in the field of administration.
The Gupta administrative and political organisations were favourable for the
growth of independent organisations and since there was no centralisation,
the central government interfered as little as possible with the autonomy of
the local units. The Guptas were the first to initiate systematic provincial
and local administration making provision for the landed, military and pro-
fessional interests to play their active role. The grant of villages to religious
beneficiaries with fiscal and administrative immunities paved the way for
the development of full feudal structure subsequently. In a word, the Gupta
administration was benign and it hardly interfered in the life of the individ-
ual. It was sound and efficient.

3. Structure of Polity between 700-1200 A.D.

The Gupta empire was heading towards disintegration by the closing
years of the fifth century A.D. Though it lingered on, its weakness was taken
advantage of by their subordinate chiefs who freed themselves from the
imperial yoke and assumed the titles of maharaja and maharajadhiraja
signifying their independent status. Among these powers mention may be
made of the Maitrikas of Vallabhi, the Maukharis of Kanauj, the Vakatakas
of Berar, Yasodharman of Malwa, the Vardhamanas of Thaneswar and the
rulers of Bengal. The attempts of Harsa to unify northern India did not bear
fruits, and the political unity of the country remained a distant dream. The
same trend continued in the period of our concern in that north India was
ruled by the Gurjara-Pratiharas, the Palas in Bengal, Karkotakas in Kashmir,
the Salastambhas in Kamarupa, while in South India the Rastrakutas and
the Cholas were prominent. There were a number of small powers who
frequently changed their allegiance to one or the other of the major powers
keeping always in view their own self interest. After initial setbacks, the
Gurjara-Pratiharas emerged powerful, but, could not hold out for long. The
decline of the Gurjara-Pratihara empire brought into prominence new power-
s, known later under the collective name of ‘‘Rajputs’’, who played a sig-
IIL} STATE AND GOVERNMENT IN ANCIENT INDIA 77

nificant role in medieval Indian history. With this ancient India came to an
end yielding place to a new age both in political and cultural history of
India.
Although treatises on statecraft such as Nitivakyamrita by the Jain So-
madeva Suri, Abhilashitartha-Chintamani or Manasollasa by King Some-
swara and the commentaries on the smritis by Medhatithi and Visvarupa
were composed during the period, there was no material change in the struc-
ture of the polity. Somadeva was inspired by the old Smriti-Arthasastra
tradition and claims that his work was a manual of instruction to king and
others. His political ideas are not grounded in Jaina beliefs and principles.
Their theory of kingship oscillates between human and divine origins.
If at one place they support the view that whoever protects the people is
known as king and his duty has been ordained for the purpose of ensuring
the welfare of the people in general, elsewhere they approve Manu’s dogma
of divine creation of the king out of the particles of eight gods, so as to
make him a superman. However, kingship was not restricted to kshatriya
alone. There are similar contradictions about king’s executive authority.
There is a hint at the principle of king’s unlimited executive authority and
at the same time they maintain that executive edict must not be contrary to
the canon and custom. The individuals, particularly those of the upper classes
were permitted to carry arms for self-defence, the justification being the
inability of the king to stretch his arms so as to reach every man within his
kingdom. The absence of a strong power probably necessitated the arming
of the individuals to protect themselves, their property as also of others.
The practice of assuming high-sounding title continued during this
period as well. If the Pratiharas were satisfied with the title of maharajad-
hiraja, the Palas assumed the usual title of parameswara paramabhatta-
raka maharajadhiraja after the Gupta monarchs. Similar titles were
assumed by the kings of Kamarupa.
The administrative organisation of the period is not marked by any bold,
original and imaginative ideas. They were more defensive in nature becomes
evident from their justification by frequent allusions to the didactic texts
like the Mahabharata and Puranas like Vishnu and Matsya. The central
government comprising of a number of departments as detailed in the Art-
hasastra continued during the period under review. In the city administration
the representatives trade and crafts guilds were entrusted with the civil affairs
of the town. The civil administration of the town was separated from the
military and the command of the fort was distinct from that of the troops
stationed thereabout. According to an inscription of the time of Bhoja I (876
78 HISTORY FOR LAW STUDENTS [CHAP.

A.D.) ‘‘the whole town (sakalasasthana) made a gift of land in two specified
villages which were in its own possession’’.”’ It follows from this besides
the town executive there was a town council (or Assembly) which also
owned some adjoining villages. The rulers of the period adhered to the
ancient principles of taxation and forced labour was in vogue.
The traits of feudalism witnessed during the Gupta age reached its
flowering stage during this period. There are numerous references to the
donation of villages in the Rastrakuta and Chola records. ‘‘In Maharashtra
and South Gujarat the donated villages are often described as lying within
groups of 12, 24, and 84, while sometimes such a village is located within
a bhukti. The numerical groups are reminiscent of the typical clan-chief’s
estate and subdivisions’’. In South India, particularly under the Cholas the
self-governing village system became a feature of the local administration.

4. Quasi-Feudalism and Feudalism

The kind of a relationship that existed between the victorious monarch
(the overlord) and the vanquished who agreed to serve the victorious in a
tributary status in ancient India is described by A.D. Basham as quasi-fue-
dalism. According to him, the complex structure of contractual relations
covering the whole society from king to villain as existed in medieval Europe
was absent in ancient India. The vassals usually became so by conquest
rather than by contract.”® Kautilya advises the powerless king to render vol-
untary homage to a stronger neighbour. There are instances in ancient Indian
history where a large kingdom exercising direct control over the central core
of the territory while the surrounding vassals with their own petty local
chieftains governing the remaining parts of the empire. The degree of their
subordination to the overlord varied from one another as is indicated by the
Allahabad Pillar inscription mentioned before. We have already noted the
kind of relation that existed between the suzerain and tributary and the ser-
vices that latter rendered to the former during the Satavahana and Gupta
times. We have a typical instance in the history south India where the vassal
taking advantage of the weakness of the imperial house overthrew it and
established his dynasty. The Rastrakutas overthrew their masters, theoe

27. The Age of Imperial Kanauj. intBh“ve

28. The Wonder that was India, pp. 93-94.
IL} STATE AND GOVERNMENT IN ANCIENT INDIA 79

their hegemony. This example was followed by their own feudatories, the
Hoysalas. It was also true of the Cholas.
To illustrate how the quasi-feudal relations arose, Basham quote the
following account as recorded in an inscription (8th century A.D.) at Dudh-
pani in Southern Bihar: ‘“Three merchant brothers were returning from the
port of Tamralipti to their home in Ayodhya, with a caravan of merchandise
and provisions, and rested for the night at a village called Bhramarasalmali.
Meanwhile the local King, Adisimha, passed by on a hunting expedition,
with a large train of followers, and, as was the custom, demanded food and
fodder of the villagers. But they were suffering from a temporary shortage,
and could scarcely meet this demand. So they sent a deputation to the mer-
chants, who at their request gave the king provisions from their stock. The
king found the companionship of the eldest brother, Udayamana, very agree-
able, and so he and his brothers became members of Adisimha’s court. One
day, Udayamana, revisited the village of Brahmarasalmali, and the villagers,
remembering his former kindness, asked him to become their king. King
Adisimha approved the request, and so the merchant Udayamana became
raja of Bhramarasalmali, while his two brothers were made kings of adjoin-
ing villages.’’?°
The above account indicates how the vassalages came to be created and
the relations between the overlord and his subordinates established. The sys-
tem it is true, does not approximate to the western model.

Feudalism
A great deal of controversy, as has been briefly stated above, has been
raised by Indologists and historians as to the existence of feudalism or man-
orialism in the landed economy of ancient India. In the feudal system of
Europe, the lord (king) was considered as the holder of all the land of the
realm. He let out much of the land to the barons or tenants in chiefs stipu-
lating certain conditions. They had to make some payments and supplies on
est provide specified number of soldiers in times of war. The
? their turn, let out land on similar conditions and thus the process
down the scale. On the death of a tenant, his successor had to
> th > king and succeed to his estate. Similarly, the tenant had
whe 1 he- sold or gave away part of his land to a stranger. In
make payments and supply articles to the master when
ghted, at the marriage of his eldest daughter and when
80 HISTORY FOR LAW STUDENTS {CHAP.

he had to pay ransom. These characteristics of feudalism, they argue, are

not noticed in the Indian situations.
The term feudalism comes from the word feudum which refers to the
military organisation. According to some, the system of land tenure in India
can be well compared to the manorial system of land tenure. A recent writer
speaks of the prototype of manorial system in ancient India.°? The European
monorial system of land tenure was interwoven with the economic, social
and administrative organisation in the middle ages. According to this system,
the land-tilling peasants were first attached to the landowning class. The
nucleus of this system was the manor. A good number of peasants’ holdings
were attached to it. The manorial system in Europe was economically a
self-sufficient unit in an age of economic decentralisation and barter econ-
omy.
Although some of their characteristics can be traced to the ancient Indian
politico-economic system, some have argued, yet this term cannot be
properly employed to explain the entire phenomenon. But it is possible to
correlate the major groups of phenomena in ancient India and it is precisely
for this reason D.D. Kosambi and R.S. Sharma have described the Indian
model as ‘‘Indian Feudalism’’. R.S. Sharma on an analysis of the inscriptions
has shown how the kings transferred their administrative and judicial auth-
ority as well as the ownership of economic resources to the beneficiaries.
The Guptas granted fiscal and administrative immunities to the benefi-
ciaries. The Vakataka records show how the ruler gave up his control over
almost all sources of revenue, including pasturage, hides and charcoal, mines
for the production of salt, forced labour, and all hidden treasures and de-
posits, when he made grants. The Gupta and the post-Gupta land grants
indicate the donor giving up the right to govern the inhabitants of the villages
that were granted. There are also instances of the donors asking the inhabi-
tants, cultivators and artisans to pay the customary taxes to the donee and
obey his commands. The government officials and the soldiers were directed
not to cause any disturbance to the brahmanas. ‘‘All this provides clear
evidence of the surrender of the administrative power of the state’. Later,
the brahmanas were granted the right to punish thieves and ‘all offences
against family, property, person, etc’. Gradually the powers of the state were
transferred to the priestly class first and then to the warrior class.3!
While making grants certain conditions appear to have been imposed.
These conditions included that the donee shall not commit any treason

30. See Vijaya Kumar Thakur’s Historiography of Indian Feudalism.

31. R.S. Sharma, op. cit., pp. 253-257.
IIT} STATE AND GOVERNMENT IN ANCIENT INDIA 8]

against the state, shall not slay a brahmana, shall not commit theft and adul-
tery, shall not poison the king, shall not to wage wars nor wrong other
villages. The object was to secure the support of the priests and prevent
them from acting in opposition.
The grants made in Bengal differed from what has been stated above
in two important respects. Firstly, these grants were the results of sale trans-
actions effected by individuals and involved only the transfer of revenues
from land which the donee could enjoy in perpetuity. Secondly, they were
made with the consent of central government and carried immunity from
taxes only. The donee had no right to alienate or grant his rents or land to
others. These grants do not illustrate true subinfeudation.
Whatever might be the intentions of the donors, feudatories, and private
individuals, the grants helped to create powerful intermediaries, wielding
considerable economic and political power. Some of them gradually shed
their priestly functions and turned their chief attention to the management
of land and other secular activities. The Kathasaritsagara mentions of a
royal priest who enjoyed one hundred villages became like a samanta.
Temples and monasteries also became land-owners. In the area of a landlord,
the original title of the cultivators or soil-occupants must have been inter-
fered with to some extent. It may, therefore, be said that in some cases
peasants might have been reduced to the status of share-cropper and temporary
tenants. These demonstrate how land grants gave rise to feudal conditions.

5. Local Administration
Village or grama formed the pivot of administration. ‘Its importance
was naturally very great in an age when communications were slow and
industrialisation unknown’. The local administration was carried on by divi-
ding the local area into various political or rather administrative divisions
so as to facilitate the smooth working of the administration of the whole
state. The smallest unit of administration was then a village with a number
of families pursuing hereditary occupation. The next unit of administration
was a sangrahana or a grouping of ten villages. Above this was the unit
called kharvatika comprising a group of 200 villages, while dronamukha
consisted of 400 villages and staniya 800 villages. Manu is slightly at vari-
ance with the above Arthasastra administrative divisions. His divisions are
a village, 10 villages, 20 villages, 100 villages and 1000 villages.
The administration of the village was carried on under the supervision
and direction of the village headman, who was variously called as gopa,
gramabhojaka, gramani, gramika or grameyaka, gramakuta or pattanika,
82 HISTORY FOR LAW STUDENTS [CHAP.

gavunda (Gouda) and mahantaka or mahattaka. He was a state official and

as such he was responsible to the government of the land rather than to the
village assembly. His order was represented on the council of ratnins in the
Vedic period. He had burdensome duties to perform. It was his duty to set
up and define the boundaries of the village. He was to survey the land and
classify it under various heads. He was to manage gardens, forests, temples,
irrigation works, cremation grounds, rest-houses, watersheds, pasturage,
roads and streets. He periodically took census of the village and submitted
the record to the chief of the department. He maintained the register of
accounts to note the collection of actual revenue. As leader of the village
militia it was his duty to prevent troubles — internal and external — arising
in the area entrusted to his care.
The office of the village headman was hereditary, but the government
reserved the right to nominate another scion of the family if the succession
of the son was disapproved. He enjoyed rent-free land in lieu of salary in
addition to a number of petty dues in kind which the villagers had to pay
to the government. He had a clerk to assist him in the maintenance of village
records and correspond with higher authorities. The office of the accountant
was hereditary and he also enjoyed rent-free lands.
A significant feature of the village administration was the system of
night watchmen in each and every village. This was intended to check sud-
den raids of bandits and robbers.
Of the other officials in the rural areas mention may be made of those
in charge of sangrahanas, kharvatikas, dronamukhas and sthanikas. They
were made responsible for the administration of their respective areas. They
were given supervisory control over officers lower in rank to them. Sthanika
was the most important officer in the rural administration. He was answer-
able to the finance minister. He dealt directly with his subordinates and sent
Out special intelligence officers to find out the causes of migration from and
immigration into the villages. He detected the theft and produced the guilty
before the designated authorities for the award of punishment. The services of
these rural officials were highly remunerative and carried dignity with them.
The different units of rural administration were self-contained groups
answerable to the central government in financial matters. The central gov-
ernment hardly interfered in the internal matters of the villages, but stepped
in only if they failed to collect revenue and deposit in the central exchequer.
Otherwise, they enjoyed complete self-government.
The village had its own assembly (later village panchayat) to carry on
the administration. The composition of the assembly varied from region to
region. Generally it was made of village elders though there are instances
all the householders being its members. They were variously called as ma-
II} STATE AND GOVERNMENT IN ANCIENT INDIA 83

hattams, mahattaras, mahajans and perumakkal. They met regularly to

transact administrative business, and to settle local disputes. According to
Kautilya the committee was to act as trustee of the property of orphans,
minors and temples.
The Chola records provide a more detailed picture of the constitution
and functions of the village assemblies. There were two types of villages,
ur and the Brahmadeya village. Ur, an ordinary village, had its local assem-
bly also called ur. It was composed of all members of the village excluding
the untouchables. It concerned itself in all matters pertaining to the village.
The assembly also dispensed with justice.
The Brahmadeya villages are those agraharas that were granted by the
kings to learned brahmanas. They had their own assemblies called maha-
sabhas, which were completely autonomous. The system of election of the
mahasabha has been described in great detail in the Uttaramerur inscriptions
of Paranataka I.
In the twelfth year of Parantaka I, the village Uttaramerur called together
a general assembly under the presidentship of a royal officer. The assembly
made rules and regulations regarding the annual election to the sabha. In
that village there were thirty wards or cheris and from each ward the can-
didates for election had to possess certain qualifications with regard to
property, age, scholarship and honesty. In the twelfth year of Parantaka it
was decided that those possessed 3/4 Veli (about an acre and a half) of land
and a house, those above thirty and below sixty years of age, those who
had learnt the sastras-vedas and had not occupied any important post during
the previous three years could stand as candidates. But it was found that
these qualifications were very strict and therefore in the fourteenth year of
Parantaka unique regulations were made. The qualifications were the possession
of 1/4 Veli of land or a house, being aged above thirty-five and below seventy
and being proficient at least in one veda and commentaries on it. Also all those
who had served the assembly were eligible to contest in the elections.
The disqualifications were many. Those who had served on the com-
mittees before but have not rendered proper accounts and their specified
relations, those who had committed panchamahapatakas,™ the outcastes,
plunderers of the property of others were ineligible to contest in the elections.
All the qualified candidates in each ward carried on election campaigns
and on the day of election all the people of the village, including old men

32. Illicit sexual intercourse, killing a brahmana, drinking of intoxicating liquor, theft and
committing adultery with the wife of spiritual teacher.
84 HISTORY FOR LAW STUDENTS [CHAP.

and children, assembled in the hall of the temple or grove. The chief presi-
ding officer, madhyasta, was nominated by the king. Every voter was given
a voting paper (volai) on which he wrote his choice of candidates. After
collecting the voting paper (ballot paper) ward by ward, they were put into
a sealed box called Kudavolai. Then the presiding officer took up each
ballot box and having shown the seal to the people assembled gave it to an
old man. The old man lifted up the pot and shook it well; then the seal was
broken and a little child was called to pick out one vote out of the pot.
After the child had taken it out, it was given to madhyasta. The madhyasta
had to take the ballot paper in his open palm, with fingers outstretched and
his cloth ducked back. Then the officer had to read aloud the name written
on the paper and after him all those near him should also read it out. Thus
for thirty wards thirty members were elected and out of them twelve formed
the Annual Committee or samvatsaravariyam, twelve the Garden Commit-
tee or fottavariyam, and the remaining six formed the Tank Committee or
erivariyam. The committees held office for 360 days and in the remaining
five days all accounts of the village were audited and then fresh elections
were held for the new year.

Similarly thirty men were chosen from thirty wards and of them twelve
were chosen. Six of those twelve formed the ponvariyam (committee for
the supervision of gold) and the remaining six formed the panchavara-vari-
yam. When the elections were held next year, the wards that had already
been represented on the committees were excluded and the appointments
were made from the remaining wards by an oral expression of opinion.
Those who had ridden on asses, committed forgery and had earned wealth
by dishonest means were disqualified.

These were the unique regulations promulgated by Parantaka I to make

the village administration perfect and efficient. They were further intended
to check the tendency among the people of monopolising these offices and
to give all the members of the village a fair chance to shape the village
administration in their best interest. The use of the system of both election
and lot for electing the candidate is indeed praiseworthy. ‘The method of
electing members’’, writes R.C. Majumdar, ‘‘carefully eliminating, as it did,
all chances of corruption and personal influence, may be fairly compared
with eon we know about the republican states of ancient and modern
world’’.-

33. Corporate Life in Ancient India, p. 177.

II} STATE AND GOVERNMENT IN ANCIENT INDIA 85

Working of the Mahasabha

The Mahasabha was a democratic assembly which was completely au-
tonomous. It possessed sole authority over the village land and was left free
in the internal management of villages. It was this assembly which collected
the land revenue either in cash or in kind or both and paid to the royal
treasury. If the owner of the land failed to pay the tax to the assembly, it
could take over his land and auction it to realise the dues. The assembly
had absolute powers regarding the reclassification of land and the reclama-
tion of forest and waste land. The Ukkal inscriptions make it clear that the
assembly “‘possessed all powers of a state within its narrow sphere of ac-
tivity. It possessed corporate property which it could sell for public purposes
such as providing for the necessities of a temple which seem to have been
looked upon as an important part of its duties. It was trustee for public
charities of all kinds, and received deposits of money, land and paddy under
the condition to provide out of their interest, the things stipulated by the
donors. These included feeding of brahmanas, supplying rice to the God
established in a temple, supply paddy to the specified persons, maintenance
of flower gardens, of boats and the provisions of water and fire pans to
brahmanas’’.** In times of famine and the failure of crops, the assembly not
only provided relief to the flood-striken people but also remitted land
revenue.
The assembly arranged for the proper maintenance of communication
and irrigation works which needed their special care. It also controlled pri-
mary education. The king did not interfere in the working of the sabha, but
interfered only when there was a dispute between the two sabhas. There
was cordial relationship between the assembly and the king.
The assembly also performed judicial functions. There was a judicial
committee known as nyayattar which settled disputes and pronounced judg-
ments. The king was of course the fountainhead of justice and if the party
was not satisfied with the decision of the committee he could appeal to the
king for final judgment. The punishments were mild and even for murder
the punishment was the payment of a fine to the temple.
It is evident from what has been stated above that the people of south
India displayed to a remarkable degree their corporate spirit and that the
rural administration had attained a high pitch of efficiency and perfection.
The members of the assembly had a high sense of justice and fair play and
they vied with the central government to ensure to the people entrusted to

34. Corporate Life in Ancient India, pp 186-187.

86 HISTORY FOR LAW STUDENTS

their care led a prosperous and peaceful life. This is the basis of the remark
of K.A.N. Sastri that ‘‘between an able bureaucracy and the active local
assemblies which in various ways fostered a live sense of citizenship there
was attained a high standard of efficiency and purity, perhaps the highest
ever attained by the Hindu State’’.*°
Thus, in ancient India, the central government was raised on the bedrock
of local institutions, self-governing in every respect, and forming ready ad-
juncts of government. The relation of the central government to the village
unit was guidance by supervision and not by direct effective control. The
local institutions served as efficient auxiliaries of the government at the
centre and no opposition was raised to it. These formed by the community
for furthering their own interests were in the nature of working democracies
in which various interests were represented. ‘‘These organisations were so-
cialistic in character and thus embodied pure democratic ideals’’.

35. The Cholas, p. 514.

 Chapter IV

Social Organisation in
Ancient India _
rere has been a general tendency among Western scholars to
discount the contributions of ancient Indian thinkers to the science of
society. According to them Indians exhausted themselves in abstract
metaphysical problems of the ultimate nature of worldly things hardly
leaving any scope for serious thought about the more practical and
worldly problems like those of social organisation. In a word, the science
of society did not engage the attention of the ancient Indian thinkers.
It is a commonplace knowledge that all forms of social organisation,
including the various social institutions, emerge out of human needs. The
human needs define human interests, purposes and aspirations and actual
planning takes place in terms of the adjustments of human behaviour,
individual and social, with those purposes and aspirations. Therefore, ancient
Indians’ conception of life, social and individual, was also organised in view
of those considerations. Formation of the social organisation was based
upon an understanding of the meaning of human existence, its needs and
its interests. It was a scheme for conducting human life quite in keeping
with that meaning. The foregoing account demonstrates that ancient
Indian thinkers did not neglect the science of society.
The question that often arises is the usefulness of the study of past
institutions. Do such studies help towards the organisation and control of
our present social life? Modern Indian society has become very complex
and it has to absorb the particularistic forces in castes, tribes, the
traditional religions, traditional cultures, and language. Some of the
problems that we face today may not have even been thought of by our
ancestors. But this is not to deny the importance or the usefulness of the
study of past institutions. Our ancestors also faced, at the formation of
the society, similar if not the same problems. Their response, the
solutions they formulated, if not in themselves useful, may serve as
pointers at least to suggest solutions towards discovering and managing
the problems we are confronted with today. We may “follow our
ancestors in principles and spirit, if not in details, to our
advantage, particularly if we discover that the spirit which goaded them to

[ 87 J
88 HISTORY FOR LAW STUDENTS [CHAP.

social action was inspired by proper and desirable motives and under-
standing. We may profit by their experience, avoiding the mistakes. The
lessons of the past may serve as ‘caution-signals’ for the present as well as
the future’’. This in itself would prove to be a sufficiently adequate reward
yielded by the careful study of our past social institutions brought into existence
and nurtured by our forefathers to solve the problems of their own times.
The social organisation of the past and the social institutions that were
devised to meet the specific needs of the society or to answer the challenges
serve as cues to future revision and reconstruction of a social order. What
is more, the circumstances under which the different social institutions
emerged enable us to understand the fundamental psychology behind the
present problems and attitudes that accept or reject them due to which it
has come to be what it is. The best way to unravel their value is to make
out the causes and circumstances imbedded in the thought and institutions
of the past. If this is done, they will prove to be of great assistance in making
of and planning for the future.
The modern trend is to show utter contempt or disregard for ideas and
ideals of the past. The impact of modern civilisation has tended to make
many to doubt the value or usefulness of these ideas and ideals. Attempts
are being made to introduce new ideas and ideals in social and moral fields
forsaking the old ideas and ideals. While disputing the orthodox view of the
infallibility of the sastras, it is necessary to remember that ‘what has been
able to stand the test of time for ages past and is yet alive and has been
regulating the social order till this day may at least have, some merit in it
which is worthy of examination’. As Carver points out, ‘“‘The world has
been a great experimental laboratory in the moral and social field.’ There
is no harm in experimenting with new ideas and ideals without completely
casting away the old ones which have stood the test of time, which we have
inherited and to which we subscribe. Viewed aright, the social organisations
and institutions of the past provide certain definite views of the ideological
and valuational foundations of those institutions.

1. The Varna system

The characteristic of Indian society that strikes one as distinctive of it
is what is termed varna dharma or caste. It is undoubtedly a cardinal term
in the social heritage of India. The term varnasrama dharma implies that
dharma is not the same for all. There is sadharana dharma which is com-
mon to all despite the varna to which they may belong. The qualities enum-
erated as constituting sadharana dharma are the very foundations of social
IV | SOCIAL ORGANISATION IN ANCIENT INDIA 89

order which is only the moral order binding man to man in common fel-
lowship and binding them all to the rest of the universe, both animate and
inanimate. The varnasrama dharma is a unique system of social obligations.
[t implies that there is also a dharma appropriate to each class and to each
stage in the life of the individual. *‘This thoroughgoing recognition that men
are not the same, and that there is a hierarchy of classes, each with its
separate duties and distinctive way of life, is one of the most striking features
of Indian sociology’’.! But the original meaning of the conception of var-
nasrama dharma appears to be that each individual is a part of one stupen-
dous whole but at the same time each is distinct from the other in the nature
of the contribution which he has in him to make for the enrichment of the
whole in consonance with his diversed psychological endowment.
Those who speak of caste as unique appear to overlook the natural
tendency for the formation of social groups on the basis of such things as
belief in a common origin, common avocations and common interests and
for their stabilisation and for common defence. For instance, the clergy, the
nobility, the burghers and the serf and proletariat into which European so-
ciety was divided were similar to the four varnas. The four-fold grouping
found in ancient Iran, namely atharva (Priest), rathestha (warrior), vast-
rya-fsuvant (head of the family) and Auwiti (manual worker), correspond to
the four-fold grouping of the Indian people into brahmana, kshatriya, vaisya
and sudra. If the foreign origin of the Aryans is accepted, it follows when
the Aryans entered India there was already a class division in their tribal
structure. Even in the earliest hymns reference is made to ksatra or nobility
and the vis or ordinary tribesman which is suggestive of the fact that a tribal
aristocracy was a feature of Indo-European people even before the tribes
migrated from their original home.
There are two current views — Western and Brahmanical — both based
on internal evidence from the Vedas and post-Vedic literature regarding the
origin of caste. According to the Western view, the dasyus, who are regarded
as the original inhabitants of India and said to be the forefathers of the
sudras, were foiled and subjected by Vedic gods. And when the Aryans
conquered India, they suppressed and enslaved the dasyus who were dark
in colour (varna meaning colour). The colour strifes that is witnessed in
South Africa and elsewhere in our own times have reinforced the opinion
of these thinkers who see in Indian varna divisions of original split between
the fair skinned Aryans and the dark skinned dasyus. This view is untenable

1. A.L. Basham, op. cit., p. 137.

90 HISTORY FOR LAW STUDENTS [CHAP.

because if colour was the determining factor, then there would have been
only two divisions and not four. What is more, the first three divisions are
among the fair skinned Aryans themselves which is difficult to understand
or explain. In fact we learn from the Vedas that active opposition between
the Aryans and dasyus was not due to colour but to the difference of cults.
There is also no reference to the brahmanas, kshatriyas, vaisyas and sudras
by varna. It is probable that the conquered dasyu or dasa became a sudra,
though all sudras cannot be traced to a servile origin. The exclusion of the
sudra from religious rites of a Vedic type might be due to the original anti-
pathy of the dasyus to Vedic religious observances. Original antipathy led
to voluntary exclusion. The old hostility, contempt and resentment continued
to persist becomes evident from the descriptions of a sudra as a “walking cemetery’,
because of his love of meat, and his comparison with ‘a beast of burden’.
The second view, the brahmanical view, supports divine sanction. The
origin of varna has been stated in many legends and of the reason for dif-
ferentiation in philosophical literature. The most famous of the legends is
that of the purushasukta, a late hymn which is not considered as valid for
the bulk of the Rig Veda. The purusha who is identified with primeval
giant or the ideal ‘Man’ or world spirit is said to have produced the brahmana
from his mouth, the kshatriya from his arms and the vaisya from his thighs.
The sudra is said to have sprung from his feet. This tradition is repeated by
Manu. The purpose of the creation is stated by Manu thus: ‘‘For the sake
of preserving the universe the Being (Brahma, the Creator) devoted separate
duties to those who sprang respectively from His mouth, His arms, His thighs
and His feet.’’ He continues: ‘‘That man is purer above the navel, but the
self-creating power declared the purest part of him to be his mouth. Since
brahmana sprang from the most excellent part, since he was the first born
and since he possess the Veda, he is by right the chief of the whole creation.”
Here is an attempt to place the brahmana at the apex of the social hierarcy.
Those who believe that the Varna division is a divine dispensation or
divinely ordained institutions quote the Gita in support of their argument.
Krishna thus says in the Gita : ‘‘The four-fold order was created by me on
the basis of quality (guna) and action (karma).’’* But the statement most
unequivocally repudiates the divine origin of the castes based on birth and
denies most categorically the brahmana’s claim of inherent superiority. It
only proves the functional differentiation based on quality and action (guna
and karma). The philosophical justification for the differentiation comes

2. Cuturvarnyam maya srista guna karma vibhagasah.

[Vv] SOCIAL ORGANISATION IN ANCIENT INDIA 9]

from the Upanishads. According to Upanishadic thought, the individual

being is Only a soul encased in a body and progress is that of the self and
not of the body. Varna or caste relates to the body and not to the self. The
Chandogya Upanished says that a person’s birth in particular form as
brahmana or sudra depends on his Karma in the past birth (prarabda
karma). In other words, the birth in a varna is the result of the combined
effect of the innate guna of the self and its actions as moulded by guna in
the past births. According to this view, a man’s varna is a part of retributive
justice that pursues the self from birth to birth. The Santi parva tells us that
man attains a superior varna by righteous acts. It is by fulfilling faithfully
the duties of the varna and asrama (station in life) that one may ascend in
social scale and ultimately attain liberation (moksa).
A careful and detailed analysis of the two theories discussed above sug-
gests the conception of a single community arranged in four layers. Indian
literature has a genius for suggestion by simile. The fact that the four varnas
were born from different parts of the one and the same purusha indicates
the interdependence of the varnas. The mouth from which brahmana
emerged is an important part of the body and stands for direction and control;
the arms from which kshatriya was born stand for grasp and strength, while
the parts of the body of the Purusha from which vaisya and sudra were
born, thigh and feet, bear the weight of the entire frame. In other words
they stand for the economic props of the society. The schematic arrangement
of varnas is for the integration of the society and not for its division. The
varna scheme “‘is the keystone of the arch of the Indian social scheme. It
aimed at a permanent solution of every side of the social problems; genetic,
psychological, spiritual and economic’’.?
Recently R.S. Sharma has proposed ‘the mode of production involving the
theory of surplus leading to class formation’ (varna system).? His views may
thus be summed up. The view of the authors of the Vedic Index that the caste
system was already well on its way towards general acceptance in the age of
the Rig Veda is not based on positive evidence. ‘‘But if the Varna/caste system
is understood in the sense of a social mechanism created in response to a mode
of production in which the upper classes in the form of priests and noble-war-
riors act as managers of production and collectors of the surplus produce and
the lower classes such as peasants, artisans and agricultural labourers, free and
unfree, carry on the primary work of production, such a picture cannot be
deduced from the relevant references in the Rig Veda’’.‘
3. Material Culture and Social Formation in Ancient India, p. xv.
4. Ibid, p. 49.
92 HISTORY FOR LAW STUDENTS [{CHAP.

The Rig Vedic society as reflected in the central portions of the first
Veda was primarily pastoral. The people were semi-nomadic, their chief
possessions consisted of cattle and horses. Cattle, sheep and goats were do-
mesticated for purposes of both milk and meat. Cattle were considered to
be synonymous with wealth (rayi) and property. Wars, which were a logical
and natural economic function, were fought for the sake of cattle. War was
an important source of livelihood. The main duty of the chief or raja was
to protect the cows. The main income of a chief came from the spoils of
war. In an economy based on cattle rearing, supplemented by agriculture
which was less important, and buttressed by acquisition of booty, tribesmen
could afford only occasional presents for their chiefs which became custom-
ary in Vedic times. The priests also cornered a lion’s share in lieu of the
prayers they offered to gods on behalf of their patrons.
In the earlier portions of the Rig Veda mention is made of the artisans,
peasants, priests and warriors, but the society as a whole was tribal, pastoral,
semi-nomadic and largely egalitarian and was free from the later institution
of social classes called varna. The later Vedic people took to agriculture
on a large scale and produced enough cereals to enable the princes to perform
sacrifices and reward their priests. These sacrifices mostly benefited the kin-
smen of the chief and his priests, who naturally were raised above the mem-
bers of the Vis. Apparently the distinctions between the rulers and the ruled
had not been sharpened. The priests stressed through rituals the subjection
of the peasantry or the vis to the warrior nobles, but at this stage the process
of turning the tribesmen into taxpaying peasants was very weak.
The picture that is obtained in the later Vedic phase is that the peasants
produced a little more than what they needed to support themselves. They
could maintain non-producing segments such as priests and princes together
with their retinue in a manner which was not possible in the predominantly
pastoral society of the Rig Veda. As the later Vedic phase was based on
agriculture and the limited use of iron, it marked the transition of the tribal
states into territorial states and the gradual disintegration of the tribal society
into class and occupational groupings. The later Vedic texts speak of four
social orders based on occupation - brahmana, rajanya/kshatriya, vaisya and
sudra. But the four social orders are occupational and ritualistic ranks. These
cannot be regarded as four separate social classes in the sense that some of
them owned land, cattle, pasture grounds and implements and the others
were completely deprived of them. Land was no doubt the chief instrument
of production, but there is nothing to show that the princes and priests used
and occupied the larger portion of the cultivable land. There are however
IV} SOCIAL ORGANISATION IN ANCIENT INDIA 93

clear indications of the beginnings of the unequal distribution of the produce

of the land. With the support of the brahmanas, the rajanyas claimed the
grain tithe from the vaisyas, and both the upper orders exploited the labour
of slave women for domestic work. Yet they had not devised the mechanism
for the assessment and collection of taxes. It is clear that the first two orders
formed the ruling class, and tried to establish their authority over the vaisyas
who formed the producing peasant class with the sudras as a service domestic
adjunct which was small in number at this stage.!5
The conflict between the brahmanas and the rajanyas/kshatriyas mani-
fested itself ideologically. As the conflict for sharing the social surplus be-
came acute towards the end of the Vedic period, the Satapatha Brahmana
in particular found it necessary to stress unity and cooperation between the
brahmanas and kshatriyas. Nevertheless, the perpetual need for collecting
tributes and sacrificial fees from the peasantry supplemented by the demand
for the services of the sudras kept the two upper social groups together.!6
The widespread use of iron in the age of the Buddha helped the clear-
ance of the thickly forested area and the use of iron ploughshare led to the
production of sufficient surplus for the rise of a class-based and state-based
society in which the religious and governing wings of the ruling class could
collect taxes, tributes and tithes. The brahmanical ideologies gave legal and
religious stamp to the emerging system. They devised and elaborated a social
mechanism through which the fruits of economic expansion could be cor-
nered by princes and priests to the exclusion of peasants, artisans and agri-
cultural labourers. People, whose tribal trait of equality had not disappeared
completely, had to be convinced that it was necessary to obey the raja, pay
him taxes and offer gifts to the priests. The varna system was devised to
serve this purpose. The system of this social control promoted the ideology
of hierarchy, of inferiority and subordination, which characterises a class
society. Although there are instances of princes ploughing the field, though
in a ritualistic context, as time passed the two higher varnas, especially the
brahmanas, were not allowed to take to the plough and manual work. Grad-
ually the abhorrence of the higher varnas for manual work reached such
limits that they developed utter contempt for those who practised crafts and
thus came to look upon some manual labourers as untouchables. The more
a person withdrew from physical labour, the purer he came to be considered.
The Vaisyas, though belonged to the twice-born group, worked as peasants,
herdsmen and artisans and later as traders and became the principal tax-

5. Material Culture and Social Formation in Ancient India, p. 74.

6. Ibid, p. 81.
94 HISTORY FOR LAW STUDENTS [{CHAP.

payers, and as slaves and hired labourers the sudras became the primary
suppliers of labour. The classes of artisans, peasants and agricultural la-
bourers were detached socially and occupationally from those of brahmanas
and kshatriyas. The producing masses were saddled with social disabilities
and economic obligations, which were enforced through the establishment
of a professional army and an administrative apparatus which collected taxes
and punished offences against family, property and social order. This unique
social structure with legal and ideological outfit came to be known as the
Varna system. The brahmanical varna ideology was thus a clever devise
for regulating production, tax/gift collection and distribution. For the first
time the functions of the four varnas were defined, so that those who were
concerned with the distribution and appropriation of the social surplus were
categorised as higher varnas and those who were engaged in primary pro-
duction as lower varnas.'7
It is evident from what has been stated above that the varna system
was based on function and that the varnas were classes and not castes.
According to R.P. Masani: ‘‘The seers of the early Vedic period know noth-
ing of caste. Dwelve as much as one may into the literature of the period,
one discovers only classes and not castes. The elements which go to form
castes were however there so that gradually a gulf was created between one
order and another. For a long time however, the conception of social segre-
gation and untouchability was repugnant to the genius of the people who
sought unity in variety and dissolved variety in unity.’ In short, the four-fold
division is for integration and not division. It is the conception of a single
community arranged in four layers. But the real fault lies with Hindu law which
by its prohibition upholds the division and renders normal adjustments impossible.

2. Gotra and Pravara

The social order of the Hindus was complicated by other features which
had no original relationship to class, but were roughly harmoniated with it.
These are the institutions of gotra and pravara which came into prominence
in late Vedic times, and the brahrnanas in our times attach great importance
to them. In fact, these were of fundamental importance to the brahmanas as
an indication of social and ritual identity.
According to R.S. Sharma the terms gotra, vrata and vraja show that
people came together in the Rig Vedic period for cattle herding. The se-
mantic history of the term gotra clearly shows that the need for procuring

7. Material Culture and Social Formation in Ancient India, p. 56-166.

IV} SOCIAL ORGANISATION IN ANCIENT INDIA 95

subsistence eventually led to the formation of clans. The original or literal

meaning of gotra is cow pen or enclosure. The word gotra meaning a clan
appears for the first time in Atharva Veda, and this special connotation it
has retained. It is possible that those who came together to rear cattle or to
bound them together eventually found it convenient to form a kin-based unit
called clan or gotra.® ‘‘Some ancient Indo-European peoples, such as the
Romans, had exogamous clans, as well as generally endogamous tribes. It
may well be that the gotra system is a survival of Indo-European origin
which had developed specially Indian features’’.? It could as well be com-
pared to the transformation of occupational guide into castes in early me-
dieval times.'°
To begin with, in historical times, the gotra, ‘a patrilineal, exogamous,
sibship whose members trace their descent to a common ancestor’ was pri-
marily a brahmanic institution recording kin and social relations. It was a
belief among the brahmanas that they have descended from one or other
rishi (legendary seer) after whom the gotras were named. Seven or eight
primeval gotras are generally mentioned in the religious literature. These
include Kasyapa, Vasishta, Bhrigu, Gautama, Bharadvaja, Atri and Visvami-
tra. The Agastya gotra came to be added when he introduced the Vedic
religion south of the Vindhyas. In later times, these primeval gotras were
multiplied by adding the names of many other ancient rishis. The gotra,
which was essentially a brahmanic institution, was later extended to other
twice-born classes. The gotra was of chief importance in connection with
marriage and property since members of the same gotra (sagotra) were not
permitted to marry within the gotra but they could, in the absence of an
heir, claim rights to property owned by one of their fellow members."!
The pravara, a stereotyped list of names of ancient rishis believed to
be the remote founders of families, had a similar function. In their daily
worship the brahmanas not only mention the name of the founder of their
gotra, but also the names of other sages who were believed to be remote
ancestors of their family. The pravara generally contained the names of the
rishis would occur in the pravaras of families of other gotras. According
to the custom of some gotras, marriage was impossible with a member of
another gotra having one pravara name in common, while others barred
intermarriage only when there were two common names in the pravaras.

8. Material Culture and Social Formation in Ancient India, p. 159.

9. A.L. Basham, o.p. cit., p. 153.
10. Ibid., op. cit., p. 159.
11. Romila Thapar, Ancient Indian Social History, p. 330.
96 HISTORY FOR LAW STUDENTS [{CHAP.

The matrimonial choice came to be restricted or narrowed down with these

prohibitions especially when in the Middle Ages the endogamous caste sys-
tem was fully established.!?
The adoption of the gotra system raised the status and prestige of the
brahmanas and they were elevated to the respectable classes. The other
twice-born classes adopted the same gotra names as the brahmanas. How-
ever, they did not claim any descent from the ancient sage, but merely on
the gotra of the family of brahmanas which traditionally officiated at their
domestic rituals. It appears to have been an imposed one and hence it re-
mained quite artificial. Though these classes also took the pravaras of their
domestic priests, they did not mean much. In fact the real gotras adopted
by these two classes were not religious but secular (laukika) ones, founded
by legendary eponymous ancestors. The /aukika gotras are not noticed in
legal literature, but they figure in the inscriptions where it is used to mean
sept or clan. Although the law books do not list them, the existence of
non-brahmana gotras are known otherwise.
The breaches of gotra regulations were not viewed seriously by early
lawgivers and they even prescribed penances for such breaches. For instance,
if a man married a woman of the same gotra he had to perform a chan-
drayana penance, a severe fast for a month. Thereafter, he had to maintain
his wife in same manner as he would a sister and no stigma was attached
to the child of such a marriage. However, later jurists, with ruthless logic,
declare that this rule applies only to inadvertent marriage within the gofra,
when the relationship is known the sin is equivalent to that of incest.'*
Romila Thapar is of the view that the vamsa and gotra lists served a distinct
social function and underlined the social status if not (indirectly) of property.
It would seem that at the point where it became socially necessary there
was probably a rush to systematise the lists and connections. The mainten-
ance of such a system was found to be necessary for the brahmanas as new
members had to be recruited who were not from the old kinship groups.
Thus tribal chiefs in new areas or the conference of brahman status on the
priests of cults assimilated into Vedic religion would require the records of
such families of priests. Doubtless the gotra system was useful both to in-
corporate the new brahmanas into the varna and assist in their being ab-
sorbed into kinship groups where this was desired, or equally, the
preservation of a subtle barrier between the new and the old if this was
preferred.'4
12. A.L. Basham, op. cit., p. 154.
13. Ibid, pp. 154-55.
 IV] SOCIAL ORGANISATION IN ANCIENT INDIA 97

3. Varna and Jati

A great deal of confusion has arisen out of the indiscriminate use of
the word caste to denote both varna and jati. Varna is not the same thing
as jati. Varna represents the four-fold division of the society while jati
represents the smaller groups existing in society which the authors of the
dharmasastras seek to derive from one or other of the four varnas. Manu
distinctly says that there are only four varnas, brahmana, kshatriya, vaisya
and sudra, while he speaks of about fifty jatis, such as Ambastha, Chandala,
Dravida, Yavana, etc. But even Manu (X. 31), not to speak of later writers,
has confused jati with varna. The confusion is due to the fact that brahmana
came to be called both a varna and a jati, though there are many /Jatis
which are comprehended under the name sudra, and a group cannot be
found today which is known simply by the name of sudra.
According to Manu, many castes or jatis were produced by a series of
crosses first between members of the four varnas and then between the
descendants of these initial unions. (Murdha Vasiska brahman and Ksha-
triya), Mahisya (Kshatriya and vaisya), etc. Secondly, many castes were
formed by degradation from the original varnas on account of non-observ-
ance of sacred rites. These are called vratyas. The vratya brahmanas were
known as bhrijjakantaka, avantya, vatadhana, etc.
This theory which appears highly fanciful assumes, in the first place,
that the whole population of the world is descended from the original four
varnas — even foreign countries like the Chinese, Saka and Yavana are
said to have been kshatriyas at one time, but now degraded to lower status
because of the non-observance of the prescribed sacraments. They belong
to the same stock as the Indian kshatriyas and are ethnically more closely
related to therm than the latter to the Indian brahmanas and vaisyas. Secondly,
castes which were compact tribes like the Andhras, castes which had de-
veloped out of trade guilds like the Ambasthas, castes which had represented
the distinction between different classes of labour, between fishing, hunting,
weaving, agriculture and handicrafts, are all supposed to have been produced
_ by inter-breeding. Thirdly, the great divergence of opinion among the law-
givers regarding the names of castes produced by mixed unions shows the
part played by fancy and imagination in the derivation and the tabulation
of mixed castes. For instance, Yaksa regards the Nishadas as an original
caste, the fifth varna. Vishnupurana and Harivamsa consider them as hav-
ing produced from the body of Vena; Manu traces it to the union between
brahmana and sudra.

14. Romila Thapar, op. cit., p. 330.

98 HISTORY FOR LAW STUDENTS [CHAP.

Risley speaks of castes formed by different processes, a whole tribe of

aborigines, or a large section of a tribe, enrol themselves in the ranks of
Hinduism with the name easily distinguished from those of the standard
castes, such as the Rajabanshis of North Bengal, the Bhumij of West Bengal,
the Gonds of Central India. The functional or occupational type of castes
like the Sadgopas (milkmen), Madhunapits or those barbers who have
become confectioners, the Chasadhobas or washermen who have become
agriculturists. The caste or jati evolved out of religious sects like the Lin-
gayats and Sikhs. The castes of national type which cherish traditions of
bygone sovereignty like the Nawabs, the Mahratta, Kunbis, etc. The caste
formed by migration. If the members of a caste leave their original habitat
and settle permanently in another part of the country, the tendency is for
them to be separated from the parent group and develop into a distinct caste,
e.g. Rarhi and Varendra brahmanas of Bengal, the Gour brahmanas. Castes
were also formed by changes of the custom. The Ayodhya Kurmis of Bihar
and the Kanaujia Kurmis of Uttar Pradesh pride themselves on their prohi-
biting the remarriage of widows and have attained a higher rank in the
estimation of the brahmanas than ordinary Kurmis. Viewed from this devel-
opment Manu seems to be correct because new social groups are produced
by intertribal marriages. It is worthy of note that Manu is not the first to
derive so many castes from the four original varnas by the process of in-
termarriage, as before him smriti writers like Baudhayana, Vasista, and Gau-
tama wrote on it.
Serious scholarly efforts have been made in recent years to analyse the
theoretical as well as practical or functional dimensions of the institutions
of jati or varna. It is argued that though earlier scholars speak of a distinction
between varna and jati, a detailed studies of the early uses of these terms
lead to a very different conclusion. According to Suvira Jayaswal, the basic
identity of the concepts of varna and jati in the perception of the participant
peoples indicates that varna and jati did not constitute two different systems
but one, and it is well known that the Hindus themselves even today apply
the term jati to all the levels of the caste system beginning from varna to
what is described by the sociologists as ‘subcaste’.'* Romila Thapar is of
the view that varnas represented the theoretical and jati the fundamental
aspect of caste, the former was an attempt to explain the existing reality
which in its essentials ought to be traced to Harappa culture. She defined
these essentials as (1) the existence of hereditary groups governing marriage
relations; (2) a hierarchical division of labour based on service relationships

15. R.S. Sharma (ed) Survey of Research in Economic and Social History of India
(hereinafter mentioned as Survey), p. 47.
IV] SOCIAL ORGANISATION IN ANCIENT INDIA 99

which later came to be known as the jajmani system; and (3) the idea of
ritual purity and impurity of social groups. She cites the Great Bath at
Mohenjodaro as clearly suggesting the observance of an ‘‘ablution ritual
which was probably central to the notion of ritual purity’’.'° The transposi-
tion of the jajmani system or “‘service relationships’’ is questioned by Suvira
Jayaswal. In her view ‘‘the later jajmani system utilised the concept of ritual
ranking to restrict mobility of the dependent peoples, but it cannot be seen
as survival of a culture in which the priest is supposed to have occupied the
central, topmost, position by virtue of his inherent sacred powers’’.'’ Tha-
par’s view that jati represented the functional and varna the theoretical as-
pect is also questioned. In fact, Narendra Wagle on the basis of his study
of the early Pali literature has come to the conclusion that the term jati is
not used to emphasise bonds of kinship but to indicate status position. Du-
mont has brought out the different principles that underlay between varna
and jati; the varna hierarchy is based on function but the jati emphasises
the relative purity/impurity of castes. Survira Jayaswal however feels that
the notion of purity/impurity described as characteristic of the jati system
was in fact a further elaboration of the varna ideology reflecting a deterior-
ation and hardening of class relations.'*
According to D.D. Kosambi, the origin of the caste system should be
traced to the formation of a servile caste from the dasas (dasyus), “‘the
descendants of the Indus settlers who had provided the surplus for Indus
cities, being persuaded thereto by some method other than force, say reli-
gion’’. He regarded the assignment by the tribal authority of ‘‘one or more
dasas to labour for a particular sub-group”’ of the Aryan tribe as an import-
ant contributory factor to the growth of economic disparity and the rise of
private property of certain sub-groups or family groups. He regards this as
marking the beginning of the original caste/class system. The decline of
tribal egalitarianism and differentiation within the tribe paved the way for
a class society wider than the tribe in which, despite continuing tribal in-
fluences, “‘the priests and warrior castes united to repress and exploit the
Aryan peasant (vaisya) and non-Aryan helot (sudra)’’.'!” It may be noted
here “‘that the caste ideology was not static and the concept of purity/im-
purity of social groups developed in historical times with the intensification
of class exploitation. It is a mistake to look upon caste ideology as a constant
which remains the same in spite of changes in the social context’.
9° 20

16. Proceedings of the Indian History Congress (1969), p. 36 quoted in Survey, p. 48.
17. Ibid, p. 49.
18. Ibid, pp. 49-50.
19. Ibid, pp. 50-51.
20. Ibid, p. 50.
100 HISTORY FOR LAW STUDENTS [CHAP.

4. The Untouchables (Panchamas)

The idea and practice of untouchability in Hindu society have given
rise to different theories regarding its origin. The untouchables who were
subsumed by the sudras were the early representatives of the people who
have been variously called in later times as outcastes, depressed classes,
suppressed classes or scheduled castes. Several centuries before Christ
groups of people who served the Aryans in very menial and dirty tasks,
were looked upon as quite outside the pale becomes evident from the Budd-
hist literature and the early Dharma Sutras. They were also called pan-
chamas (the fifth class), ‘but most authorities rejected this term, as if to
insist that they were excluded from the Aryan social order altogether’
.”!
There is no agreement among scholars regarding the origin of untou-
chability. N.K Dutta was of the view that the spirit of contempt culminating
in untouchability was borrowed by the Aryans from the Dravidians who
were culturally far superior to the pre-Dravidian aborigines and who treated
them as ‘pariahs’. Untouchability was not a part of the original Indo-Aryan
institutions.2? This view does not find favour with many scholars. For in-
stance, R.S. Sharma rightly says that there is no evidence to show that Dra-
vidians practised untouchability before they came into contact with the Aryan
culture or that the southerners had a more conservative and contemptuous
attitude towards the sudras, which category subsumed the untouchable
groups in the early centuries preceding the Christian era.2> However, the
tendency among scholars ‘to treat the attribution of impurity to social group
as a unique phenomenon have led them to trace this practice to the pre-Aryan
period and as something endemic to the Indian style of life’.
Fiirer-Haimendorf has come out with an interesting hypothesis suppor-
ting the urban origin of untouchability. He argues that the untouchables have
no particularly close connection with the soil: they are generally craftsmen
such as leather workers and weavers, or menials working as watchmen,
sweepers, etc., whose services are essential to the urban settlements but may
not be needed in rural areas as is the case at present. Since most villagers
are engaged in agriculture there is less contempt for manual labour, whereas
there exists greater economic and cultural disparity in towns and the poorer
classes living in squalor and compelled to pursue “‘unclean’’ occupations
are naturally segregated and banished outside the city in a society which

21. A.L. Basham, op. cit., p. 144.

22. Origin and Growth of Caste in India, p. 88.
23. Sudras in Ancient India, p. 131.
IV} SOCIAL ORGANISATION IN ANCIENT INDIA LO]

identifies personal cleanliness with purity. Fiirer-Heimendorf however,

concedes that once the idea of untouchability developed in urban and semi-
urban settlements it could spread to villages as well as ‘‘it is everywhere
the towns which set the standard’. He even ventures to suggest a link ‘‘be-
tween untouchable craftsmen of Dravidian India and the ‘industrial’ prole-
tariat of ancient Indus towns, whose ultimate breakup might even account
for the dispersal of untouchables throughout other parts of India’’. He is
tentative becomes evident from his own admission that ‘‘such a hypothesis
would be little more than speculation’’ although everything suggests the
urban origin of untouchability, and it is not yet possible to pin it down to
a definite period of Indian history.”
There is no positive evidence from the Indus cities to support his con-
clusion, for the workmen there were involved in non-polluting occupation
like pounding grain. However, “‘the ideas of untouchability and unapproa-
chability of certain social groups deriving from the concept of ritual pollution
were developed and carried to the extreme in rural India in the Middle
Ages’’. He does not agree with the view that untouchables as remnants of
a conquered aboriginal population, but asserts that there is closer racial ap-
proximation between the local Hindu castes and the untouchables than be-
tween the untouchables and the surviving aboriginals’’.
Vivekanand Jha speaks of four major stages in the origin and growth
of untouchable groups. He says in the Rig Vedic and the later period there
was no practice of untouchability though in the later Vedic texts ‘the tribal
groups of the Candalas and the Pulkasas are mentioned with much spite
and revolution’. They however emerge clearly as untouchables in the second
stage covering the period up to 200 A.D. The trend is continued in the third
stage and some more ethnic groups were added. Finally, in the last stage,
600 A.D. to 1200 A.D., not only several ethnic groups, but also a number
of occupational groups like the carmakaras and the rajakas were degraded
to the category of untouchables.*> A.L. Basham is of the opinion that some
classes of outcastes or untouchables appear to have gained their despicable
position through the growth of the sentiment of non-violence — for example
the nishada (hunter), kaivasta (fisherman), and karavara (leather worker).
The pukkusa, who appears as a sweeper in Buddhist literature was degraded
because the members of his group made and sold alcoholic liquor.”°

24. Survey, p. 74.

25. Ibid, pp. 79-80.
26. Op. cit., p. 145.
102 HISTORY FOR LAW STUDENTS [CHAP.

It is seen from what has been stated that there are divergent views
regarding the origin of untouchability. Any study based on the smrifis may
not lead us anywhere and it is necessary to combine the methods of anthro-
pology, archaeology and indology to reconstruct a meaningful history of
untouchability.

5. The Family
What strikes a reader of the Indian family is its joint nature. All the
members of the family — brothers, uncles, cousins and nephews — lived
together under one and the same roof and shared the property of the family
in common. Normally, the joint family included three generations and this
fact is noticed in smritis, for under the rules of the law of partition, any
member of a joint family who is removed more than three degrees from the
common ancestor can claim a share on partition.*? The family may also
include four generations. The father was the head of the family and admin-
istrator of the joint property. The family was patriarchal in character.
Sraddha, the rite commemorating the ancestors, bound the groups
together. All the relatives of the deceased (sapinda) joined together on this
occasion. The three generations of the dead (himself, his father and his
grandfather) were believed to participate in the benefits of the ceremony.
Thus the dead and the living were linked together by this rite to the spirit/or
memory of the ancestors.
The joint family system, it is true, bound the family with a deep sense
of solidarity and gave its members a great measure of social security. But
it was not free from limitations. It gave rise to nepotism and many other
abuses which accounts for its unpopularity and fast disappearance in our
times. The social security it ensured bred parasites who would bask in com-
parative comforts contributing very little or almost nothing to the fortunes
of the family. Such instances were certainly not unknown in ancient Indian
society. There was very little opportunity for fastening of individual auton-
omy or self-dependence. The whole environment of the family was not
congenial for the growth of the individual because he was bound down by
the rules and regulations framed by the head of the family.
The individual did not count much in the family as the latter was looked
on as the unit of the social system. Even the population of a given region
was generally estimated in families rather than in heads. The father was the
head of the family and was styled grihapati or dampati. The Rig Veda

27. Jolly, Hindu Law and Customs, p. 168.

IV | SOCIAL ORGANISATION IN ANCIENT INDIA 103

refers to the father as the symbol of all goodness and kindness, yet occa-
sionally he acted cruelly and exercised absolute control over his children.
This becomes evident from the popular stories found in the Vedic literature.
One such story is that of Sunahasepa mentioned in the Rig Veda, (1.24,
12-15 and V. 2.7)
‘*King Harischandra of Ayodhya was childless, and vowed that if he
had a son he would sacrifice him to the god Varuna. Soon a son was born
to him, and named Rohita; but Harischandra was naturally disinclined to
perform his share of the bargain. In punishment Varuna afflicted him with
dropsy. After some years he decided to sacrifice Rohita, who was now a
youth, but he refused to give his life for the sake of his father’s health, and
fled to the forest, where he lived for six years.
One day, Rohita met a brahman, Ajigartha, and bought his second son,
Sunahsepa, for a hundred cows, as a substitute for himself. Varuna agreed
to accept the sacrifice of Sunahasepa in place of Rohita, and the brahman
boy was sent to the court of Harischandra to be prepared for sacrifice. Ajigar-
tha agreed to earn another two hundred cows for binding his son to the
sacrificial stake and slaying him. The sacrifice was made ready, and Suna-
hasepa led to the slaughter: he commenced to sing hymns in praise of the
gods, and his devotion was such that Varuna was moved to compassion.
Harischandra was cured of his disease, and Sunahasepa lived to become a
great and famous sage.’’”®
The family discipline was strict is illustrated by the case of Rijrasva
who was deprived of his sight as a punishment by his father (Aitareya
Brahmana, vii, 12 pp). Similarly, we also learn from the Rig Veda how the
insolvent gambler is disowned by his brothers and parents, in front of his
creditor. Implicit and unquestioned obedience to the father is held up as the
highest duty for a son in numerous stories and incidents in both the epics.
Rama cheerfully gave of the kingdom and betook himself to the life of an
exile in the jungles, merely to enable his father to keep his word, and
Bhishma voluntarily took the vow of life-long celibacy and renounced his
claim to his father’s kingdom, to remove all obstacles in the way of his
father’s marriage with a fisherwoman. Rishi Kandu killed a cow at his fa-
ther’s order even though he knew it was a sinful act on his part to do so.
Parasurama committed the most heinous crime of murdering his own mother
at his father’s command. Such instances can be multiplied. There is also
other side of the picture. In fact that Dasaratha, father of Rama, could not
survive his separation from his beloved son demonstrating how deep a fa-

28. Quoted in A.L. Basham, op. cit., pp. 156-57.

104 HISTORY FOR LAW STUDENTS [CHAP.

ther’s love could be. The attitude of respect and devotion to a father was
but the logical conclusion of the great veneration shown generally towards
elders in the family. In fact such cruel acts have been positively forbidden
by Apastamba and others. Kautilya looks on the killing of a son as among
the most heinous forms of murder.
The law of partition, as mentioned before, permitted the partition of a
large joint family after three generations. Generally, partition took place on
the death of the pater-familias, when the property was divided among the
sons. There is no reference to will and the eldest son was not entitled to
any special inheritance though a very small weightage amounting to one-
twentieth of a share was permitted. Partition of property took place even
during the lifetime of the father. Individual possessions of the members were
not included in the joint property. Manu, however, states that the property
of a son, wife, or slave belongs to the head of the household, and the same
precept is repeated by some other early lawgivers; the rights of the pater-
familias, it would seem, tended to grow less with time.”?

6. The Asramas (the four stages of Life)

The scheme of the asramas as thought out and devised by ancient In-
dians is a significant contribution in the whole history of the social thought
of the world, without even a parallel to it in any other thought system,
excepting, perhaps, to some extent, in Plato’s The Republic.*° This was a
distinctive characteristic of Indian civilisation and accounts for much of the
religious development of the age. It is very difficult to determine whether
the theory of the asramas was deliberately formulated by brahmanism with
a view to accommodate the new doctrines that were raising their heads
against the older canon of the brahmanas and the philosophy of sacrifice in
the later Vedic period. Their supreme genius for compromise and adjust-
ments of differences probably led later to the formulation of the wonderful
theory of asramas.
Derived from the Sanskrit root srama (to exert oneself), by derivation
asrama may mean ‘‘(i) a place where exertions are performed, and (ii) the
action of performing such exercises’’. It signifies a halt, a stoppage, or a
Stage in the journey of life just for the sake of rest, in a sense, in order to
prepare oneself for further journey. Thus the asramas are to be regarded
as resting places during one’s journey on the way to attain moksa (final
liberation) which is the summum bonum of life.*'

29. Ibid, pp. 157-58.

30. P.H. Prabhu, Hindu Social Organisation, p. 75.
31. Ibid, p. 83.
IV} SOCIAL ORGANISATION IN ANCIENT INDIA 105

Just as Aryan Society was divided into four classes similarly the life of
the individual Aryan was divided into four asramas — brahmachari —
grihasta, vanaprasta and sanyasin, The oldest upanishads speak of these
asramas Only as three types or branches of life, but not as successive stages.
It is only in the late upanishads, the Mahabharata, and the dharmasastras,
that the theory of successive stages of life is formulated and is developed
by the addition of a fourth stage, that of the sanyasin who gives up even
sacrifice, in fact, all good works, and as an ascetic, renounces the world to
meditate in the Absolute (Brahman), with a view to realise it or achieve
union with it. The last two stages appear to have formed a single stage in
the early period. It is probable that the unbelievers in ritualism who preferred
the jnanamarga to the Karma marga of the priests were completely placated
by this scheme, which allowed them the scope in the last two asramas.*?
It was believed that an individual would live for a period of one hundred
years and this life span was divided into four quarters and a quarter assigned
to each one of the asramas. Each of the asrama is a stage of life in which
the individual has to train himself for a certain period (15 years), and exert
himself within the circuit of the same in order to qualify himself for the
next.
The first stage is that of brahmachari. After the upanayana (investiture
with the sacred thread) ceremony the individual puts his childhood behind
him and becomes a brahmachari, a dvija, a twice-born. He is now born a
second time, as it were, born into a new world of activities, duties, respon-
sibilities and expectations and aspirations for all of which he has now to
begin training and equipping himself. In this stage his is life of study of
which the characteristic requisite is that he must leave the home of his par-
ents and get himself admitted into the home and family of his chosen teacher
with whom he has to live and lead a celibate and austere life. There were
two classes among the brahmacharis: 1) One who underwent student life
for a period and thereafter he married and became a householder (upakur-
vana), and 2) One who remained a student and a celibate throughout life,
which he consecrated wholly to pursuit of learning (naishthika). After com-
pleting his course of studies, he returned to his parental home, took bath
and became a snataka. Then he was married and became a householder,
grihasta, the second asrama. This was an important asrama because he
had to bear the entire burden of the society. The grihasta’s life has also to
be a continuous stream of giving, a life of self-less service and dedication

32. The Vedic Age, pp. 493-94.

106 HISTORY FOR LAW STUDENTS [CHAP.

of his utmost for his elders, children, wife and other members of his family,
his dependents and strangers, through his acts of fulfilling his social obli-
gations. When well advanced in middle age, he had seen his grand children
and thus has surely established his line, he left his home for the forest to
become a hermit (vanaprastha). In this asrama, by meditation and service
of others, he freed his soul from material things, until at last, a very old
man, he left his hermitage and became a homeless wanderer (sanyasi), with
all his earthly ties broken. The sanyasi is described as one who “‘abandoning
truth and falsehood, pleasure and pain, the Vedas, this world and the next,
seeks only the Atman’’.
The system of asramas was designed to give wide scope to individuals
in the choice of a vocation in life which was best suited to their intellectual
capacity and mental inclinations. According to A.L. Basham it “‘was evolved
partly as a counter-blast to the unorthodox sects such as Buddhism and
Jainism, which encouraged young men to take up asceticism, and bypass
family life altogether, a practice which did not receive the approval of the
orthodox, though in later times provision was made for it. Despite their
artificiality, however, the four stages of life were an ideal which many men
in ancient India attempted to follow, and thus they deserve our consideration.
Moreover, they serve as a framework round which we can model the life
of the individual’’.*? The different stages very well reflect the different ideals
which inspired society. It is worthy of note here in each one of these as-
ramas the functions of the group and the individual are different. In the
brahmacaryasrama the function of the group is to look after the individual.
As a grihasta, the individual has to look after the group. The third stage is
a neutral phase while in the last stage the individual freed from social ob-
ligations helped himself in the search of Atman. Thus, Indian society was
kept from disintegration by the sublime conception of the scheme of varna
and asrama, which gave its men and women a clear vision of the spiritual
winning post, and showed them how to order their lives and mould their
actions in order that they may, in this life itself, triumphantly reach it.
The observance of duties by the members of the society would necess-
arily imply the organisation of the people into a unified state. If, therefore,
the people are to constitute a state, every member of each of the Varnas
must have to perform duties of his station at each of the four asramas. This
is the doctrine of Varnasramadharama, the counterpart of the plationic
correlation of ‘Virtue’ and ‘status’. As soon as the people are organised into

33. Op. cit., p. 159.

IV | SOCIAL ORGANISATION IN ANCIENT INDIA 107

a State varnasramadharma spontaneously emerges into being. In this theory

we cannot conceive of a state without varnasramadharma. To say that the
state has been born, and yet the people do not follow dharma would indeed
be a contradiction in terms. They indicate coexistent phenomena in the social
world. In other words, the doctrine of varnasramadharma is a corollary to
that of dharma as duty; varnasramadharma is but svadharma writ large.
Varnasramadharma, though obviously an ethnico-economic and a
socio-pedagogic term, could also be regarded as fundamentally a political
concept. It can also be considered as an indispensable category in an organic
theory of state and can be identified with rastra from the demographic
(praja or population) aspect. The doctrine of varnasrama is therefore, the
doctrine of rashtra minus the doctrine of ownership. Further, the doctrine
of dharma (as law and duty) applied to the total members of the state coin-
cides with the doctrine of classes and stages. The doctrine of varnasrama,
then, is clearly an integral part in a consistent philosophy of politics. The
violation of svadharma and varnasrama, it was feared, would bring back
the ‘state of nature’ (matsyanyaya) detrimental to the existence of the state.

7. Slavery
Megasthenes, the Greek ambassador in the court of Chandragupta Mau-
rya states that ‘‘all Indians are free and not one of them is a slave’’. He
elaborates it by stating that “‘Indians do not even use aliens as slaves and
much less a countryman of their own.’’ But he was certainly wrong because
references to the existence of the institution of slavery occur in the dhar-
masastras and other literary works. Probably Megasthenes was misled by
the Indian slavery which was milder than the form to which he had been
used, and slaves were much less numerous than in the civilizations of the
West. This has been attested to by Rhys Davids who remarks: “‘We hear
nothing of such later (Western) developments of slavery as rendered the
Greek mines, the Roman J/atifundia or the plantations of Christian slave-
Owners, scenes of misery and oppression. For the most part the slaves (in
India) were household servants, and not badly treated, and their numbers
seem to have been insignificant.’’!34
Slavery was a recognised institution of Indian society and dates back
to the oldest Vedic times. The slave is denoted by term dasa which originally
meant the people vanquished by the Aryans. ‘‘Its later connotation no doubt
developed from the reduction to bondage of the many dasas captured in

34. The Buddhist India, p. 5S.

108 HISTORY FOR LAW STUDENTS [CHAP.

battle, and here we find the probable origin of Indian slavery’’.*° It had the
tacit approval of the Mahabharata becomes clear when it declares that ‘it
is the law of war that the vanquished should be the Victor’s slave’. The
captive served the master until the ransom was paid. The dharmasastras
speak of different classes of slaves and have laid down rules concerning
their status. Manu and Narada say that ‘‘slaves could be acquired by birth
in the master’s house, by purchase, by gift, by inheritance, by maintenance
during famine, by pledge, by release from a heavy debt, by capture in war,
by gain in wager, by voluntary surrender of freedom, by apostasy from as-
ceticism, by connection with a female slave, and by several other processe-
s’’.36 Slavery was also the judicial punishment for crimes. The slaves might
be bought, given away or mortgaged.
The smriti law of the Gupta Age developed rules in respect of slavery.
Katyayana, while repeating the law of Yajnavalkya and Narada, forbids en-
slavement of slaves in an ascending order of castes. He categorically declares
that a brahmana can never be a slave and the sale and purchase of a
brahmana woman are to be annulled. With the same brahmanical bias he
declares, in modification of the older law, that while a kshatriya or a vaisya
apostate from asceticism is to be made a slave, a brahmana offender is
simply to suffer banishment. Katyayana introduced a new clause according
to which a free woman marrying a slave herself became a slave, but a female
slave bearing a child to her master was immediately released from servitude.
The characters and incidents depicted in the drama mrichchakatika
partly confirm and partly supplement the account given above. In the char-
acter of the gambler, who offers himself for sale in payment of debt due to
a gambling master, we have an illustration of the class of self-sold slaves
mentioned by Narada. Again the fate of the slaves like Stavaraka and Ma-
danika indicates how the treatment of slaves depended upon the temperament
of the individual masters. For, while Madanika is regarded by her high-
minded mistress as a friend and confidant, Stavaraka is beaten and put in fetters
by his brutal owner. Again, while Madanika is released by her mistress to make
possible her union with her lover, Stavaraka had to wait for his release till the
disgrace of his master and the issue of an order by the new king.
Slaves suffered from certain disabilities. According to Manu a slave
could not be a judicial witness except in the last resort. Narada adds a legal
act done by a slave is void except when done with the permission of the
master. Manu lays it down that the master must bear the offence of his slave

35. A.L. Basham, op cit, p. 152.

36. The Age of Imperial Unity, p. 570.
IV | SOCIAL ORGANISATION IN ANCIENT INDIA 109

who was his ‘shadow’ without resentment and that he should not quarrel
with slaves. According to Narada a debt contracted by a slave for the benefit
of a householder was binding on the master.
Slaves also enjoyed certain benefits. He was to be treated as a subor-
dinate member of the household of his master and it was the latter’s respon-
sibility to maintain him. In case the slave died sonless the funeral and
commemorative rites for the welfare of his soul had to be performed by the
master. The law books declare that the property of the slaves ultimately
belonged to the master and the latter had no rights over the lives of their
slaves. The master is expressly forbidden from abandoning the slaves in old
age and giving him corporal punishment. According to Manu: ‘‘A wife, a
son, a Slave, a servant or a younger brother may, when they do wrong, be
beaten with a rope or a cane, but only on the back and not on the head. If
a man beats them otherwise he should be punished as a thief.’’>”
Kautilya, who marks himself as a great revolutionary, lays down ap-
preciably milder regulations. He does not approve of the sale of children
into slavery except in dire emergency. ‘‘A slave shall be entitled to enjoy
not only whatever he had earned without prejudice to his master’s work,
but also the inheritance he has received from his father’’.** The slaves could
not be forced to do any defiling work. ‘‘Employing a slave to carry the dead
or to sweep ordure, urine, or the leavings of food; or a female slave to attend
on her master while he is bathing naked; or hurting or abusing him or her,
or violating (the chastity of) a female slave shall cause the forfeiture of the
value paid for him or her’’.*? Kautilya advises the state to interfere in cases
where the slaves were badly treated by their masters. He also says that the
people belonging to higher castes could be mortgaged in special circumstances.
Such slaves were called ahitakas and liberal laws were laid down for them.
The law-givers have laid down liberal rules for the emancipation of
slaves. According to Arthasastra the master must set a slave at liberty on
receipt of the amount of ransom. The master who raped a slave girl had to
set her free and pay compensation, and if she were to have a child by her
master, both mother and the child had to be set at liberty. If, for the sake
of subsistence, the mother had to remain in her bondage, her brother and
sister had to be liberated.*° A slave who saved the life of the master in peril
was to be released forthwith and he became entitled to a son’s share. Similarly,

37. Manu, viii, 299F.

38. A.L. Basham, op cit., p. 207.
39. Ibid, p. 206.
40. Ibid, p. 207.
110 HISTORY FOR LAW STUDENTS

persons captured and sold by a robber or those enslaved by force had to be

emancipated. ‘‘Even those slaves who are born in the master’s house, those
who are received as gifts and those who are obtained by inheritance can be
released at master’s pleasure. Only an apostate from asceticism and one
self-sold are absolutely disqualified for release from servitude’’.*! There is
a reference to the curious custom by which the bonded men were freed from
slavery. It is said that they were expected to carry on their heads earthen
pot after the performance of due ceremonies and then dash the pot against
the ground symbolising their emancipation.
Information regarding slavery in the post-Gupta period is rather scanty.
The humane treatment of the slave, his wife and son is recommended by
Medatithi, the commentator of Manusmriti. Generally verbal chastisement
was applied to correct them, beating resorted to only where the fault was
serious. We have a story in Upanitibhava Prapancakatha which shows the
aboriginal Bhillas traded in slaves; but there is no reference to slave markets.
From the eleventh to the thirteenth centuries the ancient institution of slavery
became a well known feature of Indian social life. The law of slavery in
the commentaries and digests indicate little or no development in comparison
with that of earlier smritis.
It follows from what has described that the institution of slavery did
exist in ancient India, but the slaves were treated humanely and liberally.
The owners treated them as if they belonged to their own household and
some instances are on record to show how the masters arranged for the
marriage of their slaves and gave a share in their property. However, every-
thing was not happy with this institution. There were masters who treated
them cruelly and extracted from them all types of work. The chastity of
slave women were also at stake. Such developments forced the state to in-
terfere in the matter with the sole purpose of protecting their rights and
privileges. The Kautilyan state took notice of this and framed rules and
regulations to govern the institution. The detailed regulations suggest that
the state was aware of the problem and used its powers to set the things
right. The efforts of the state were matched by the keen interests of the
law-givers who were equally anxious to mitigate the hardships of the slaves.
The slaves could earn money in their spare time and inherit property. By
and large, they were treated humanely and liberally and their conditions
were better off in India than in most parts of the ancient world. It should
not therefore surprise us if this institution elicited the admiration of the foreigners.

41. Yajnavalkya, II, 182-83; Narada} V. 26-43 Manu, IV. 180-185, VIII 70, 415-17, Also
see the age of Imperial Unity, pp. 570-7).
 Chapter V

Status and Position of Women

in Ancient India
o study on ancient Indian Society is complete without tracing the
history of the status and position of women as they constituted the
keystone in the arch of Indian civilisation. Such an account will also
enable us to understand the spirit of Indian civilisation and to realise that
‘women’s cause, is man’s; they rise or sink together, dwarfed or godlike,
bond or free’. According to A.S...Altekar,.““One of the best ways to
understand the spirit of civilisation and to appreciate its excellences and
to realise its limitations is to study the history ofthe position and status
of women in it. *l The educational opportunities thrown open women
would show that the predominantly patriarchal character of ancient
Indian Society did not deny them the right to education. The freedom
they enjoyed and their participation in public life demonstrate the sense
of justice and fair play developed in a community. The laws of marriage
as well as the customs serve as guides to evaluate to what extent the
husband considered his wife as valued partner, whose co-operation was a
must for the happiness and success of the family. The rules pertaining to
sex morality would not only provide us a better insight into the ethical
tone of the Society prevailing at that time, but also to ascertain how far
men were prepared to be themselves judged by the standard they had set
for women. The extent to which women were given freedom to choose
their partners in life and the management of their household as also the
recognition of their proprietary rights indicate man’s capacity to control
the natural love of self, pelf, power and BOSSES, which is so deeply
implanted in the heart of every human being.”
The position and status of women did not remain constant through the
riod of our
study.The declaration ofManu “that gods are pleased with
Ghose households) where. women are‘held in honour remained merely an
ice she was ‘wergeld as equivalent to that of a
sudra’. Most authorities always regarded her a minor at law. As_a girl she
was under the tutelage of her parents, a as anadult,ofher husband; ardas
tien hee

1. The Position of Women in Hindu Civilisation, p. 1.

2. Ibid, p. 1.

Pit
112 HISTORY FOR LAW STUDENTS [CHAP.

a widow, of her sons.* Her freedom was also circumscribed becomes evident
from the declaration of Manu that, ‘‘by a girl, by a young woman, or even
by an aged one, nothing must be done independently even in her own hou-
se’’.4 There was gradual deterioration in her status and position and the
ancient Indian society was found wanting in establishing the footing equality
of man with woman. There was greater erosion in her status and position
in medieval and modern period which prompted Swami Vivekananda to
make the following forceful observation: ‘‘That country and that nation
which do not respect women have never become great nor will ever be in
future. The principal reason why your race is so much degraded is that you
have no respect for these living images of Sakti. If you do not raise the
women who are the living embodiments of the Divine Mother, don’t think
you have any other way raise.’’ Thus the study of the history of the status
and position is both interesting and instructive as it provides welcome peeps
into society’s high sense of justice and fair play or lack of it. This chapter
on the vicissitudes in status and position of women in ancient Indian
focuses
society.

1. The Status of Women

A stimulating debate is going on regarding the status of women in primi-_
tive communities. The idea that the primitive people were barbaric have led
some to conclude that women had been subordinate to men. Altekar thought
in early uncivilised societies the communities had ‘not yet emerged from
barbarism’ and there hardly existed any checks on the tyranny of man over
women’. ‘‘Ill-usage, underfeeding and overworking are pushed to the grea-
test limit... in primitive life the muscle was an indispensable element in
success and the man was stronger in it than a the woman.... Physical prowess,
bodily vigour and muscular strength thus naturally established man’s per-
manent superiority over woman....’’> So he expressed deep satisfaction over
the fact that the ‘‘position which women occupied in Hindu society at the
dawn of civilisation during the Vedic age is much better than what we or-
dinarily expect it to have been’’.® As Suvira Jayaswal points out, ‘‘such
remarks reflect only popular misconceptions about the so-called barbaric or
primitive peoples and not a scientific anthropological understanding’’.’ Con-
tinuing she writes: ‘‘Even those anthropologists who argue that women have

. The Age of Imperial Unity, p. 562.

V 147.
op cit., pp. 336-337.
. Ibid, p. 337.
. Survey of Research in Economic and Social History of India, (Survey), p. 82.
Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 113

been subordinate to men even in the early societies which subsisted on hunt-
ing and gathering do not draw such a dismal picture, as is imagined by
Altekar.’’® According to her, the role of woman as the gatherer has been
grossly underestimated owing to the male bias in anthropology, and while
some anthropologists emphatically maintain that early societies were sex-
ually egalitarian having relations of reciprocity rather than subordination,
others point out that in hunting societies too, which according to them sub-
ordinated women to men in certain respects, men did not exercise the amount
of control over women as they did in class societies.? Similar view is held
by R.S. Sharma when he writes: ‘‘Perpetual war and pastoralism brought
the patriarchal element to the forefront and relegated women to a lower
status.””!°
In the Rig Vedic period the society had certainly left behind the state
of food gathering and hunting and women held a position of honour as her
participation was found to be necessary in the production process. In the
Rig Veda, the husband and wife are called dampati indicative of an egali-
tarian society in which relations between the sexes were based on reciprocity
and autonomy in their respective spheres of activity. They took equal part
in the sacrificial rites, pressed the Soma, rinsed and mixed it with milk and
offered adoration to gods.'' Women frequently associated themselves with
Vidatha (the earliest folk assembly) and participated in its deliberations.
‘Grown-up men are described as installing strong and social maiden for the
sake of good in the Vidatha and she was no mere a mute participant in the
affairs of the assembly’. It is not that women were given undue preference
over men, but they enjoyed an equal voice with men. The Vidatha tradition
of woman’s share in the public affairs can be traced in the place given to
her in the list of ratnins. The list given in the Taittiriya Brahmana consists
of twelve ratnins, of whom three, namely, mahisi, Vavata and parivrikti,
are women. This indicates that one-fourth of those whose voice and support
counted in the consecration of the king consisted of womens!” The participation
of women in the Vidatha will have to be related to their role in food production.
During the period of the later samhitas the position of women was on
the whole satisfactory. We learn from the Satapatha Brahmana that woman
Was regarded as an equal sharer with man of the responsibilities and duties
at home. She was initiated into Vedic studies after her upanayana (Initiation
8. Survey of Research in Economic and Social History of India, (Survey), p 82.
9. Ibid, p. 82.
10. Material culture and social formation in Ancient India, p. 160.
11. Rig Veda, viii, 31.5.
12. R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, pp. 79-81.
 114 HISTORY FOR LAW STUDENTS [{CHAP.

Ceremony). Sita is described as offering sandhya prayers, i.e. ritual prayers

which are offered with mantras in the morning, noon and evening. She was
not an obstacle in the path of religion and her presence and co-operation
were absolutely necessary in religious rites and ceremonies. One who is
unmarried was not competent to offer the ritual prayers and sacrifice. As a
matter of fact, the duty of singing the mantras at the sacrificial ceremony
was to be performed by the wife. She had to perform, like the husband, a
special upanayana on the occasion of some sacrifices. She thus enjoyed
high religious status and her presence was indispensable from the religious
and spiritual points of view. The term patni regularly applied to the wife
in the brahmanas is indicative of her equal share in the socio-religious side
of the husband’s life. Gradually, however, she lost this important position,
as a priest was more and more employed to offer oblations in certain cere-
monies instead of the wife. Similarly, at the beginning of 500 B.C. upan-
ayana came to be discouraged for girls and it was declared that marriage
was the substitute for vapanayana in the case of girls. These began to pro-
duce disastrous consequences on the general status and dignity of women.
ae is of the view that the participation of women in productive
activities such as agriculture, manufacture of cloth, bows, arrows and other
war materials was at the root of the freedom and better status of women in
the Vedic age; and their position began to deteriorate when the cheap or forced
labour of the enslaved population or of the Sudras became available to the
Aryans and women ceased to be productive members of the society.!* The
discontinuance of upanayana, which was essential for acquiring adequate Vedic
knowledge and thus for higher status, the lowering of the marriageable age of
women from 16 or 17 to 8 or 9 and the practice of Sati ‘were obviously the
consequences of the deterioration in their status’. The ‘‘religio-juridical injunc-
tions in this regard were merely reinforcing and trying to perpetuate the structural
inequalities which had already developed’’.'4 The woman came to be regarded
as of the same status as the sudra from the theological point of view. This
possibly explains the keen desire for male progeny. |
po The deterioration in the status and position of women began fro
B.C. onwards. They came to be charactérised as fickle-minded, Who could
:
\ be easily won over by one who is handsome and can sing and dance well.
hi
| the Anusasana Parva of the Mahabharata we are told that Yudhisthira
prayed to Bhishma to enlighten him regarding the nature of women. He
prefaced his prayer with the statement. ‘It is said that woman is the root of

13. Op. cit., p. 342.

14, Survey, p. 84.
V} STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 115

all evils, and that she is narrow-minded’. Bhishma agreed and said in a
sense, the female is naturally a temptress and a lurer; moreover, she is not
endowed with strength of will enough to resist temptation, therefore, she
always stands in need of protection by men.!° Elsewhere in the Mahabhar-
ata we find Bhishma extolling them. Women should always be adored and
treated with love. For where women are treated with honour, the very gods
are said to be propitiated; and where women are not adored, all acts become
fruitless. If the women of a family, on account of the treatment they receive,
indulge in grief and tears, that family soon becomes extinct. Those homes
which are cursed by women meet with destruction and ruin as if scorched
by some Atharvan rite; such homes lose their splendour; their growth and
prosperity would cease.'® Thus there are contradictions in the Mahabharata.
It may probably indicate society’s lack of confidence in the nature of women
though it was forthright in idealising womanhood and recognising women
as symbols of purity, righteousness and spirituality. Tara, Sita, Draupadi,
Ahalya and Mandodari are the five ideal and revered women a mental recital
of whose names is said to purge one of ones great sins (mahapataka).'’
e attitude of Buddha, a born democrat, was in no way different though
he granted to women the right to the monastic life and found an Order of
Nuns. The moral feminine in equality is pointed out in the jataka stories
‘“‘Unfathomably deep like a fish’s course in water’’, they say, ‘‘is the char-
acter of women, robbers, with many artifices, with whom truth is hard to
find, to whom a lie is like the truth, and the truth is like a lie.... No heed
should be paid either to their likes or dislikes’’. According to the jatakas
‘‘of all the snares of the senses which ignorance sets before the unwary, the
most insidious, the most dangerous, the most attractive is woman’’.'® When
Ananda, the favourite disciple of the Buddha, asked the Master why in public
life women are not treated on par with men, the Buddha replied: ‘‘Women,
Ananda, are hot-tempered; Women, Ananda, are jealous; Women, Ananda,
are envious; Women, Ananda, are stupid.’’ Another of Buddha’s saying is,
“crying is the power of the child; anger is the power of woman’’.!” The
Buddha gave this as the reason for women not having any place in public
assemblies, for not carrying on and for earning their living by any profession.

15. 38-43, 1 and 9.

16. Mahabharata, Anushasana Parva, 46, 5: See P.H. Prabhu, op. cit., p. 266.
17. Ahalya, Draupadi, Sita, Tara, Mandodari tatha, Pancha Kanyam Samaren nityam
Mahapataka nasanam.
18. Quoted from A.K. Coomaraswamy’s The Life of the Buddha, p. 18.
19. Albet Schweitzer, Indian Thought and Its Development, p. 98.
116 HISTORY FOR LAW STUDENTS [CHAP.

Another conversation between the Buddha and Ananda brings forth the
extent to which the Buddha considered women as the snare of the senses.
‘‘Master’’, says Ananda, ‘how shall we behave before women?’’ The
Buddha replied; ‘‘you should shun their gaze, Ananda’’. Ananda then asked;
‘“‘If we see them, Master, what then are we to do?’’ The Buddha advised,
‘‘Not to speak to’ them.’’ ‘‘But if we speak to them what then?’’ asked
Ananda. The reply of the Buddha was; ‘‘Then must watch yourselves, An-
anda.”” §
On that night when Siddharta left the palace and embraced the life of
a wandering ascetic, Suddhodana, his father, arranged for his nightlong en-
tertainment to tie his mind to wordly life, he took no pleasure either in dance
or music and fell asleep. The girls also slept seeing the prince sleeping.
Siddharta awoke at midnight and was shocked to see the girls ‘‘thus dishe-
velled and disarrayed, breathing heavily, yawning and sprawling in unseemly
attitudes’’. This made him realise the deceptiveness of appearances and the
futility of worldly pleasures. ‘‘Such is the nature of women’’, he thought,
‘but a man is deceived by dress and jewels and is deluded by a woman’s
beauty. If a man would but consider the natural state of women and the
change that comes upon them in sleep, assuredly he would not cherish his
folly; but he is smitten from a right will, and so succumbs to passion’’.
The want of sympathy by Buddhism towards women was based on the
belief that woman is nearer to the world than man. It is said that the Buddha
had even prophesied that Buddhism would endure for five hundred years
only if women took to a houseless life. Even by founding the Order of Nuns,
the Buddha does not indicate that he was broad-minded enough to establish
the equality of sexes. He fully upheld the prerogatives of monks in relations
to the nuns. According to a rule ascribed to the Buddha, ‘‘a nun, even if
she has been ordained for a hundred years, must salute every monk in the
most reverential manner, even if he has only just joined the Order, must
remain standing in his presence, raise folded hands and show him due hon-
our’’.?? Women are given the honour to the extent that the Buddhist thought
does not doubt the possibility of woman putting off her woman’s nature and
becoming a man as it were, in this very life. This shows that Buddhism did
not favour structural equalities.?!
The Buddhist view of the nature of women persists throughout ancient
Indian history. Manu whose injunctions were implicitly followed by the so-
ciety holds similar views. According to him ‘‘It is the nature of women to

20. Albet Schweitzer, Indian Thought and Its Development, p. 100.

21. ii, 213-14.
V) STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 117

seduce men to this world; for that reason the wise never remain unguarded
in the company of females. For women are able to lead astray not only the
ignorant, but even a learned man, and make him a slave of lust and anger.”’
Varahamihira who lived in the Gupta court disapproves the view that women
are the snares of senses. He says: ‘‘I am convinced that those who disregard
the qualities of women and talk about their shortcomings in an ascetic mood
must be themselves bad men; such talk by them is not inspired by bona
fide motives.’’”* In his view the behaviour of men was in no way different
from that of women. It is men who shamelessly drive women into misdeeds,
but women are superior in virtues. This shows that there were thoughtful
men who were sympathetic to the cause of women, but their voice was so
feeble as to make any dent into the loud smriti injunctions.

2. Education
In the Rig Vedic period women took part in the intellectual life of the
society. After the ypanayana ceremony, which took place as regularly as
that of boys, they devoted their time, till their marriage, to specialise in
Vedic theology and philosophy. Proper training in the sacred lore was con-
sidered essential for a maiden to succeed in her married life as both husband
and wife took equal part in the sacrificial rites. The authorship of some of
the Vedic hymns is ascribed to women and in fact there are twenty such
women authors. These celebrities attained great eminence as philosophers.
Among such celebrities corroborated by internal evidence mention may be
made of Visvavara, a brahmavadin, the author of a hymn (V. 28) in the
Rig Veda, Lopamudra, composer of two verses (1.179, 1:2); Sikata Nivavarni
(VILL. 91; IX 81,11-20); and Ghosha, the daughter of sage Kakshivan, who
composed two hymns of the Rig Veda, (X 39-40). “‘The authors of X.145
and 159 are undoubtedly ladies, though it may be doubted whether their real
names were Indrani, the wife of Indra and Sachi according to tradition.”
In the Upanishadic period there are references to women of high intel-
lectual attainments. We learn from Brihadaranyaka upanishad, that once
in the presence of Janaka Yajnavalkya held a discussion with learned
brahmanas. Among his interlocutors was a learned lady, Gargi Vacaknavi,
who possessed the highest spiritual knowledge. She greatly distinguished
herself in the discussion and for a time the sage Yajnavalkya was so non-
plussed with her searching questions replied her jestingly. ‘“Gargi, you must
not ask too much, or your head will drop off.’’*4 Yajnavalkya was not pre-

22. H. Kern (ed.), Brihatsamhita, 74, 4.

23. A.S. Altekar, op. cit., p. 10.
118 HISTORY FOR LAW STUDENTS {(CHAP.

pared to involve himself in public discussion as the topics on which the

learned scholar asked questions were abstruse and esoteric in character. Mai-
treyi, the wife of Yajnavalkya, is represented as holding with her husband
philosophical discussion on the relationship of the universal soul (para-
matma) to the individual soul (jivatma). These instances demonstrate the
height of intellectual and spiritual attainments to which a woman could rise.
There were two classes of women teachers; brahmavadini (lifelong stu-
dents of sacred texts) and Sadyodvaha (those that prosecuted their studies
till their marriage). Some gifted ladies took to teaching carrier and they were
known as Upadhyayas or Upadhyayis. The wives of the teachers were
called Upadhyayanis. A new term had to be coined to denote lady teachers
shows that women teachers were numerous. The Puranas also speak of lady
teachers and the Bhagavata refers to two daughters of Dakshayana as experts
in theology and philosophy.*° Later texts also refer to girls attending lectures
of Scholars, and mastering at least part of the Vedas. The Mahabharata
has portrayed an exalted picture of womanhood in Draupadi who is called
Pandita (learned) and fearlessly argues with her husband on all topics, not
excluding political ones. Her spirited behaviour on many a critical occasion
shows a wordly woman at her best.2° Women also composed literary works
of great merit. Hala in his gathasaptasati mentions seven poetesses of fame.
We have no means of ascertaining to what extent the Buddhist nunneries
spread education among women. However, the Buddhist and the Jaina texts
refer to women of brahmavadin class. Among the voluminous Buddhist
scripture is a whole collection of poems ascribed to women and they have
been preserved in the Therigatha. There were thirty-two maidens and three
of them, Subha, Anopama and Sumedha were born of well-to-do families.
Ambapali, the noted ganika of Vaisali, who later became a Buddhist nun,
also composed a poem. According to the Jaina tradition, Jayanti, daughter
of the king of Kausambi, remained unmarried to devote herself to religion
and philosophy. She distinguished herself in discussion on abstruse questions
of philosophy with Mahavira and ultimately she received ordination at his
hands. There is a story in the Jataka referring to Jaina father having four
intelligent daughters moving about the country and challenging everyone
who came in their way for a debate on philosophical matters.2” But this
should not be taken to mean that Buddhist nunneries became centres of

24. A.L. Basham, op. cit., p. 178.

25. A.S. Altekar, op. cit., p. 13.
26. The Age of Imperial Unity, p. 563.
27. A.S. Altekar, op. cit., p. 13.
Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 119

general instruction receiving girl pupils even from amongst those who were
not intending to join the order. It may be conjectured that even when the
Buddhism was at its zenith in India it hardly did anything for the education
of women.
This high note about the education of women was not to continue for
long. After 300 BC the situation changed and the right to study came to be
denied for women. The discontinuance of upanayana for girls and the lower-
ing of the marriageable age for girls prevented them from acquiring Vedic
knowledge. They came to be held in low esteem and the education that was
given to them was one that suited them to fulfil their duties in the household
of her husband. Manu declared ‘‘let the husband employ his wife in’ the
colléction and expenditure of wealth, in keeping everything clean, in the
fulfilment of religious duties, in the preparation of his food, and in looking
after the household utensils’’. In other words, the education that was im-
parted to girls was entirely domestic and vocational in the sense that they
were being trained for that which was considered a woman’s main or prin-
cipal work, the duties of the household. Speaking on the state of female
education Megasthenes says that the Brahmanas did not as a rule teach phil-
osophy to their womenfolk, but he indicates that there were some exceptions.
It is probable that girls in the well-to-do families were not denied of edu-
cational opportunities.
Since higher education was not permissible for girls, they were given
training in fine arts like music, dancing and painting from early times. In
fact they were recognised as feminine accomplishments. Musical recitations
of the Sama hymns was the special function of women originally. Caustic
references to women’s partiality to music is made in some legends of the
Vedic literature. The legend in the Satapatha Brahmana relates to the story
of the theft of some from heaven. While Gayatri was carrying soma away
from heaven, a gandharva stole it away from her. The gods devised a trick
to get soma back from the gandharvas. They knew that the gandharvas
were fond of women and so they sent Vak (the goddess of speech) to them;
she managed to bring soma back to the gods. But the gandharvas too fol-
lowed her, and said to the gods. ‘Soma shall be yours and Vak ours.’ ‘So
be it!’ said the gods; ‘but if she would rather come thither, do not carry her
away by force, let us woo her.’ The gods accordingly wooed her. The gand-
harvas recited the Vedas to her. The gods, however, once again decided to
take advantage of their knowledge of woman’s nature; they created the lute,
and sang, and played upon it and amused Vak, whereupon she returned to
them. ‘‘But in truth, she returned to them vainly, for, she turned away from
120 HISTORY FOR LAW STUDENTS {CHAP.

those engaged in praising and praying (i.e. gandharvas) to dance and song
(i.e. to gods). Wherefore, even to this day, women are given to vain things;
for, it was on this wise that Vak turned thereto, and other women do as she
did. And hence, it is to him who dances and sings that they most readily
take a fancy.”8
Encouragement was extended to music and dancing in the post-Vedic
period. There are instances of queens and girls of the cultured families evinc-
ing keen interest in fine arts. Lokamahadevi, queen of Chalukya Vikramadi-
tya II is said to have been expert in fine art. She also built a temple at
Pattadakal. Queens of Ballala I of the Hoysala dynasty were highly accom-
plished in music and dance. Santaladevi, queen of Visnuvardhana had earned
the title natyarani for her proficiency in dance. She is described as ratnaj-
yoti in the house of bharatagama, hastalankare in different types of dance
and Saraswati in music. Inscriptions of the Hoysalas speak of a number of
grants made for the benefit of theatre (rangabhoga). Vatsayana prescribes
music and dance to be cultivated by cultured families.
The ganikas or the courtesans and nautch girls had a recognised place
in the social life in South India. They were proficient in fine arts like music
and dance. They were even honoured by village assemblies for their expert-
ness in arts of dancing and music and for their public benefaction. In course
of time they came to be looked down upon when the dancing girls attached
to the temples (devadasis) fell into immorality and these fine arts came to
be regarded as fit only to such girls. As Dubois puts it: ‘“These prostitutes
are the only females in India who may learn to read, sing and dance. Such
accomplishments belong to them exclusively, and are, for that reason, held
by the rest of the sex in such abhorrence, that every virtuous woman would
consider the mention of them as an affront.”’
Some women went in for military and administrative training, Kautilya
speaks of a female bodyguard and directs that the king on getting up from
bed, shall be received by troops of women armed with bows. We learn from
Megasthenes that an Amazonian bodyguard was in attendance on Chand-
ragupta Maurya when he went out to hunt. ‘‘Of the women some are in
chariots, some on horses and some even on elephants, and they are equipped
with weapons of every kind, as if they were going on a campaign’’.?? Prin-
cess Kumkumadevi, the younger sister of Vijayaditya Chalukya is said to
have been present with him in his military camp at Kuhudinagar. Princess
Akkadevi, elder sister of Jayasimha II Calukya is said to have personally

28. P.H. Prabhu, op. cit., p. 259.

29. Mac Crindle, op. cit., p. 72.
Vv) STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 12]

and actively engaged in fighting and sieges. Umadevi, queen of Ballala II

Hoysala, accompanied him during his expedition to north and took an active
part in the raids organised against Mallidevarasa of Belagutti. There are
numerous instances of queens administering the kingdom as regents of their
minor sons or when the kings went out for wars. Queen Prabhavati Gupta
of the Vakataka dynasty, queens Nayanika and Balasri of the Satavahana
dynasty acted as regents of their minor sons. Vijayabhattarika, queen of
Chalukya Chandraditya administered the kingdom during the minority of her
son. Queens were also placed in charge of the administration of the provinces
and in the absence of the king from the capital they administered the king-
dom as well. Women were certainly not found wanting in the attainment of
intellectual eminence, but the Smriti injunctions came in the way of their
pursuing higher studies. As a result, around the beginning of the Christian
era the doors of Vedic knowledge was closed to women.

3. Marriage
Westermarck is of the view that the term marriage has been often used to
denote a social institution complete by itself.°° As a social institution, marriage
is a part of, and has to be included in, the family and even though in a theoretical
treatment it precedes considerations about the family, it is actually intended as
a preparation for, and, therefore, the supplement of the study of the more in-
clusive institution called the family.*! Hindu writers attach great importance to
the marriage of a woman. for a ‘‘wife is the very source of the purusharthas,
not only of dharma, artha and kama, but even of moksa. Those that have wives
can fulfil their due obligations in this world; those that have wives can be happy;
and those that have wives can lead a full life’’.** It was a social and religious
duty and necessity and it was obligatory for girls as there will be ‘more pitfalls
in the path of an unmarried woman’.

Forms ofmarriage
The Smritis recognise eight forms iage; brahma, a marriage of
a duly; dowered gir
girl to a man of the same class by ceremony; daiva, involv-
ing the gift of the daughter to sacrificial priest as a part of “his
his fee; arsa
where the bridegroom paid a token bride Price hy!a cow and a bull;~pra-
eo

purchase; gandharva, or the voluntary union of a naiden1

ee”
and her lover;
asa, Of Marriage by capture, paisacha, or the one in which a man by
See =

30. History of Human Marriage, Vol, |, p. 26.

31. P.H. Prabhu, op. cit., p. 148.
32. Adi Parva, 74, 40-41.
122 HISTORY FOR LAW STUDENTS {CHAP.

stealth seduces a girl who is sleeping, intoxicated or mentally deranged. The

first four are approved by different authorities as permissible, religious and
undissolvable. The last four are condemned and viewed as improper because
the father of the girl had no voice in the selection and secondly wealth was
a consideration.

Age of Marriage
In the Vedic age girls were normally married after puberty. This is
confirmed by the internal evidences in the Rig Veda. ‘“The frequent mention
of unmarried girls like Ghosha, who grew up in the houses of their parents
(1.117.7; X. 39.3; 40.5), references to the ornaments worn by maidens at
festival occasions in order to win lovers (I.123.11; VII. 2.5), to youth’s
courtship of the maidens he loves (I.115.2), to the lover’s gifts (I. 117.18),
to their mutual love (I. 167.3; [IX 32.5, etc.) and to the spell (VII.55.5.8) by
which a lover hopes to lull the whole household to sleep while he visits his
beloved — all this evidence speaks in favour of the custom of girls normally
marrying long after they had reached puberty.’’*? In a hymn in the Rig Veda
(1.126.8) a wife asserts to her husband that she is fully developed physically
and has sufficient marks of complete puberty on her person. The evidence
mentioned above prove that marriage in the Vedic period took place when
the boy and the girl were fully grown-up.
The Mahabharata favours the marriage of well-developed and grown-
up girls. Draupadi, Kunti, Sita, Uttara (Kshatriyas), as also Devayani
(brahmana) were fully grown-up at the time of their marriage which were
consummated soon after. However, at one place Bhishma while explaining
about marriage to Yudhistira says, “‘A person of thirty years of age should
marry a girl of ten years of age wearing a single piece of cloth. Or a person
of one and twenty years of age should marry a girl of seven years of age.”’
This may be taken as exception proving the rule of a marriage of grown-up
girls. We learn from Buddhist literature that girls of the cultured families
were usually married at the age of sixteen. The Jatakas record the story of
maiden, Patachara, eloping with her lover because of the opposition of her
parents to that marriage. Most authorities agree on one point, viz., that the
girl must be younger by three or more years than the husband. Kamasutra also
favours the marriage of a girl younger to the boy at least by three years.*4
Though in early times it was usual for girls to be fully adult before the
marriage, there is a tendency in the sutra texts to lower the age of marriage

33. The Vedic Age, pp. 388-89.

34. Anusasana Parva, 44, 14.
V] STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 123

for girls. Manu recommended that a man of thirty should marry a girl of
twelve; and, a man of twenty-four should marry a girl of eight. The com-
mentators of manusmriti, Medhatithi and Kulluka, however, say this rule
was observed only in breaches. ‘*‘So philoprogenitive had Hindu orthodoxy
become that it was even declared that a father who did not give his daughter
in marriage before her first menstruation incurred the guilt of one procuring
abortion (a very grave sin, worse than many kinds of murder) for every
menstrual period in which she remained unmarried’’.*> Yajnavalkya favoured
the marriage of girls before puberty, but Narada recommends marriage after
puberty. The ideal marriage was one in which the bride was one-third the
age of the groom — thus a man of twenty-four should marry a girl of eight.*°
Around 200 A.D. the child marriage was gradually coming into vogue
and the smriti writers of theperiod 500-1000 A.D. encouraged marriages
much before the time of puberty. Since marriage came to be regarded
as a
substitute for upanayana in the case of girls, marrying girls at the age of
8 or 9 became the order of the day. However,.this..custom was followed
only by the brahmanas. Yet the older custom of marrying girls when they
were fully adult was neither uncommon nor regarded with disapprobation.
With the popularity of the child marriage, the custom of Svayamvara (self-
choice) marriages, practised by the Kshatriyas, fell into disuse, and greater
emphasis came to be laid on chastity or bodily purity of girls.
Marriages usually took place among the couple of the same class and
caste, but sagotra, sapravara and sapinda marriages were prohibited.*’ The
modern law courts also regard sagotra marriage as illegal.*® The sutras
permit anuloma (male of higher caste> marrying aa lower class female) and
Smritis regard such marriages_as legal. The progeny of anuloma unions
inherited the caste of the father. The smritikaras, “however, condemn the
pratiloma
(male of lower caste marrying a higher clas
the progeny of the pratiloma unions from sacraments. “When brahmanas
made their own group endogamous, other castes followed suit, and in course
of time intercaste marriages even of the anuloma type, though permitted by
the smritis, disappeared from society’’.*? Marriages were generally arranged
by the parents of the couple though there are references to love marriages.
Perfect harmony and happiness was expected in conjugal life.

35. Bandhayana, iv.1.12.

36. Manu, ix, 94, et. A.L. Basham, op. cit., p. 146.
37. See Chapter IV for details.
38. A.S. Altekar, op. cit., p. 74.
39. Ibid, p. 78.
124 HISTORY FOR LAW STUDENTS [CHAP.

Monogamy was the general rule though polygamous practice was pre-
valent among the rich and ruling sections of the society. While rich regarded
marrying more than one wife as a symbol of high status in society, the poor
took to plurality of wives to get a son to preserve and continue the family.
Kamasutra even ordains the wife to urge her husband to contract a second
marriage if the first one was barren or failed to present a son to him. Stray
cases of polyandry occur in the Mahabharata and some puranas, but it
was not in vogue among the Aryans in the Vedic period. The non-Aryan
tribes follow the practice even at present. The custom was not popular
becomes evident from the fact that the smritis even do not contemplate the
possibility of polyandry.

4. Right to property
The study of the evolution of the proprietary rights of women is both
important and instructive. It is important because the evolution unfolds be-
fore us the economic independence and prosperity that women enjoyed in
the society. It is instructive because with the gradual decline in her status
in the society where she had come to be regarded as chattel, there is a
corresponding increase in her proprietary rights which became more and
more extensive as time passed by. Hence the study is of absorbing interest.*°
Theoretically the couple were the joint owners of the household as well
as the property. At the time of marriage the husband had to solemnly declare
that he would not violate the rights and interests of his partner in economic
matters. The joint ownership secured her numerous rites and privileges. “‘It
invested her with an absolute right of maintenance against the husband’’.
Some law-givers even permit the wife to move the court of law to restore
her property misappropriated by her husband wilfully. By and large the
Hindu jurists never made a sincere effort to secure women an absolute
equality with their husbands in the ownership of the property of the family.
Yajnavalkya concedes the claims of the wife and sanctions a one-third share
in the family, if she was unjustly superseded; but the patriarchal family
appears to have ignored it completely. The general apathy of the law-givers
is respect of woman’s right to property is thus explained A.S. Altekar.
Landed property was held in common by the village community or by large
joint families. By the time individual coparceners could assert their individ-
ual rights in the estate of the family, the husband had come to be deified:
so it became very difficult for jurists to invest the wife with any substantial
rights as against the husband. The joint ownership of the husband and the

40. A.S. Altekar, op. cit., p. 212.

 Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 125

wife thus practically remained in a legal fiction. In practice the husband was
the sole owner of the family property and no legal remedy was there for
her to claim a share even under unjust circumstances.*! Free India has how-
ever corrected this grave injustice to women.
The law-givers have recognised the claims of wife to Sridhana
(women’s Special Property) which consisted of the bride-price, gifts given
by the parents, relatives and non-relatives, and gifts given by the husband
even subsequent to the marriage. However gifts given by the non-relatives
after the marriage and the wages earned by the wife did not constitute Srid-
hana. Later landed property came to be included in the Sridhana.
There is no unanimity among the Hindu jurists regarding wife’s absolute
right over Sridhana and her right to alienate it. Katyayana grants women
the power of sale or mortgage of immovable property included in the Srid-
hana, whereas Narada permits only movables in the Sridhana. Later jurists
divide Sridhana into categories, sandhayika and asandhyika. Women had
absolute right over sandhayika which included gifts from parents and hus-
band; the rest which came under the second category could not be alienated,
but they could ‘enjoy its usufruct during their lifetime’.
The law relating to the inheritance of Sridhana varied from region to
region. If a woman died childless and if her marriage was not according to
approved forms, the Sridhana devolved on her parents or brothers; otherwise
it was inherited by her children. Early law-givers favour the inheritance of
Sridhana by daughters as at that time it was made up of jewellery and
clothes. Generally preference was shown to unmarried and married poor
daughters. In the absence of daughters it devolved on their daughters. When
the scope of the Sridhana was enlarged this law was resented by a large
section of the community and Manu recommended sharing of Sridhana both
by the sons and daughters.
According to an old saying a wife, a son and a slave could own no
property. An echo of this is found in the later Vedic literature where the
right to inheritance is denied to women. The brotherless daughter could in-
herit the property of her father than the latter’s widowed wife, as the widow
could marry and get a son by niyoga. This law was followed down to 400
B.C. The Therigatha records an incident where the mother is seen dissuading
her daughter not to renounce the worldly life as she would become a full
heir to her father’s extensive property upon his entering the life of a monk
and hence she should think of marriage and pleasure, not renunciation. It is

41. A.S. Altekar, op. cit., pp. 216-17.

126 HISTORY FOR LAW STUDENTS [CHAP.

evident from this even in Eastern India brotherless daughters were entitled
to patrimony. The situation changed after 300 B.C. and _sisters having
brothers denied a share in the patrimony. The smritis and Kautilya concur |
with this view, though Sukra recommends a small share to the daughter in :

the patrimony even when she had brothers. Even if Vishnu and Narada rec-
ommend the same course, she could enjoy it till her marriage. en Be
The theory of joint ownership denied the wife the right to demand par-
tition even if she found it difficult to live with him. Divergent views are
expressed by jurists in respect of the right of the wife. Yajnavalkya is the
only jurist to recognise this right. In actual practice, if the partition had taken
place when the husband was alive, the wife was also given a share and this
explains why ‘‘Narada allows two shares to the husband at partition; the second
one was probably intended for his wife’’. The Mitaksara assigns a full share to
the widowed mother and most of the jurists concur with this view.

5. Divorce
The Sacred Law held that the marriage union was indissoluble once the
seven steps (saptapadi) had been taken together. It could notbeannulled
even in the absence of consummation, and therefore there was no place for
divorce. An errant wife was denied of most of her rights, still the husband
had to maintain her, if demanded. However, she could not remarry. Accord-
ing to Vasistha dharmasutra, even a wife, who has committed adultery,
becomes ‘pure“and istaken back by her husband after she has done proper
penances{ Manu lays down that in case the wife had a wilful intercourse
with a man of base caste she should be torn apart by dogs. ‘‘But the adul-
teress who stayed with a man of higher caste was more fortunate; most
authorities agree that she should be made to wear dirty clothes, sleep on the
ground, eat only enough food barely to sustain life, until her next menstru-
ation, thereafter she must be restored to her husband’s bed and her old po-
sition in the household?)
A careful examination of the dharmasutra literature suggests that_aban-
doning of wife/husband was permitted well before the beginning of the
Christian era under certain well defined circumstances. Baudhayana quotes
an injunction’? which is also foundmanusmriti,™
in that ‘‘a barren wife
should be abandoned in the tenth year, one who bears daughters (only) in
the twelfth, one whose children (all) die in the fifteenth. but she who is

42. A.L. Basham, op. cit., pp. 177-78.

43. Il, 2.4.6.
44. IX, 81.
Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 127

quarrelsome without delay’’. Manu does not blame a wife if she abandons
a husband, who is impotent, insane, or suffering from an incurable or con-
tagious disease.*? Manu permits remarriage of such wives in case the mar-
riage was not consummated and regards the children of such unions as legal
heirs of their parents. Instances of divorce also occur in the Buddhist lit-
erature. A woman named Kana was unwilling to return to her husband when
he contracted a second marriage in her absence. At the intervention of the
Buddha, she was adopted by a king, who, in turn, married her to a noble
man. A nun named Isidasi had divorced many times before she joined nun-
nery. Her first marriage with an Ayodhya merchant was broken off within
a month. She took another husband who divorced her after a month. Her
third marriage lasted only for a fortnight.*®
Kautilya is more liberal to women in matters of marriage, contract and
divorce. A woman can remarry when her husband was abroad for a long
time (ten months), if he suffered from incurable ailments or was sterile, if
he had become an outcaste, if he was bad in character, or was guilty of high
treason, or was dangerous to her life. A husband could divorce his wife on
account of her infertility or if she failed to give birth to sons. Divorce on
the ground of ill-feeling was also possible by mutual consent, but not of the
will of one party alone. ‘Kautilya places the husband and wife almost on
an equal footing in this respect’. Before contracting a second marriage the
wife was required to seek religious permission. Even such a broad-minded
and liberal reformer like Kautilya shows his lack of sympathy to women
when he stresses that marriages consecrated according to brahma, daiva,
arsha, and prajapatya forms cannot be dissolved at all.*”
Manu, as stated above, though permits the wife to contract a second

the cause of the wife. While listing the grounds under which a husband
could supersede his wife by another says ‘‘that a wife who, being superseded,
in anger departs from the husband’s house, must either be instantly confined
or cast offin the presence of the family. According to another theory pro-
pounded by him is that ‘the wife is not released from her marital obligations
even if she is sold or repudiated by the husband’. Showing disrespect by
the wife to a husband given to evil ways was met with the punishment of
desertion for three months in addition to deprival of ornaments and furniture.
Indeed Manu’s injunctions regarding a wife are painful reading, and clearly

45. IX, 79.

46. A.S. Altekar, op. cit., p. 85.
47. R.S. Sharma, op. cit., pp. 180-81.
128 HISTORY FOR LAW STUDENTS (CHAP.

show how orthodox Brahmanical view was deliberately aiming to regulate

her to a position of inferiority’’.*
Narada and Parasara are on the whole more liberal and considerate to-
wards women. They are generally in agreement with other smritis when
they recommend that the wife could repudiate her husband if he is found
to be impotent. According to Narada woman is the field (Ksetra) and man
is the seed-giver (bijin); hence the field must be given to one who has seed.
The wife is permitted in such cases to marry another after waiting for six
months. The wife could abandon her first husband to marry another if the
first is missing, or dead, or becomes an ascetic,or is impotent, or an outcaste.
Narada even goes to the extent of saying that in such cases the relatives of
the wife would enjoin her to seek another husband even if she does not
herself think of doing so.*?
The waiting period varied according to circumstances and class, but it
never exceeded eight years. These regulations do not find a place in later
law codes, and in all probability they were completely forgotten by Gupta
times when divorce became almost impossible for the people of the higher
classes. But the parents of the lower castes did not like to waste time in
inducing the unwilling husbands to accept unwanted wives; they brought a
second marriage whether the concerned wonian was willing or not. Divorce
is still permitted to this section of the society by custom.

6. Prostitution
Ancient India contained one class of women who mixed freely with
men and who were free from restraints which matrons had to observe. They
are variously called as ganikas (courtesans) and Vesyas (prostitutes) In the
literature the prostitute is depicted as a ‘beautiful, accomplished and wealthy’
woman ‘enjoying a position of fame and honour’. She was to be thoroughly
trained in sixty-four kalas (arts). These included music, dancing, singing
and acting, the composition of poetry (impromptu or otherwise), flower ar-
rangement and garland-making, the preparation of perfumes and cosmetics,
cooking, dress-making and embroidery, sorcery, conjuring and sleight of
hand, the composition of riddles, tongue-twisters and other puzzles, fencing
with sword and staff, archery, gymnastics, carpentry and architecture, logic,
chemistry and mineralogy, gardening, training fighting cocks, partridges and
rams, teaching parrots and mynahs to talk, writing in cipper, languages, mak-
ing artificial flowers, and clay modelling.°° It is however difficult to say

48. The Age of Imperial Unity, pp. 565-66.

49. XII, 96.
Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 129

whether they were accomplished in all these arts, but it shows what was
expected of her.
The ganikas or the courtesans enjoyed a great social standing and they
had nothing in common with such women in modern industrial cities. They
were particularly proficient in fine arts like music and dancing and they
were honoured by the people for their expertness in those arts as also for
their public benefactions. According to Kamasutra; ‘‘A courtesan of a pleas-
ant disposition, beautiful and otherwise attractive, who has mastered the
arts... has the right to a seat of honour among men. She will be honoured
by the king and praised by the learned, all will seek her favours and treat
her with consideration.’’>!
Typical of such respected and honoured courtesans was Ambrapali, the
noted courtesan of Vaisali. ‘She was immensely wealthy, highly intelligent
and famous throughout the civilised portions of India. She was one of the
most treasured possessions of her city, and mixed on equal terms with
princes’. She was a Sri-ratna (jewel of a woman). On his last journey to
the Hills, Buddha visited a locality in the neighbourhood of Vaisali, when
Ambrapali visited him and invited him and his companions to dine with her.
The Buddha accepted her invitation in preference to that of the city fathers,
who wished to give him a civic reception. Ambrapali refused to cancel the
programme even when she was offered ‘a hundred thousand’ saying: ‘‘My
Lords, were you to offer all Vaisali with its subject territory, I would not
give up this meal.’’ The meal was over, the Buddha gave his religious dis-
course and she presented to the Teacher a park named after her. Thus ‘the
courtesans as a class were not held in odium and neither great kings nor
renowned religious teachers looked down upon them’, and ‘in point of cul-
ture and standing’, they ‘resembled the Hetairai of Athens’.
South Indian inscriptions record the role that the ganikas played in
contemporary society. They suggested how by their charms and wiles the
ganikas enslaved and disturbed the courts and cities. The records of the
Chalukyas, Cholas and other dynasties show the keen interest the ganikas
showed in charities. Vinapotigal, the beloved mistress of Chalukya Vijay-
aditya performed the hiranyagarbha at Mahakuta and presented to the deity
a pedestal, set with rubies, with a silver umbrella over it. Chalabba, another
courtesan, endowed three piliars in the Vijayasvara temple. Matibhodamma
contributed to make two other pillars. The temple girls (devadasis) appear
to have not fallen from virtuous conduct in the early period as they were

50. A.L. Basham, op. cit., p. 183.

Si, 13.
130 HISTORY FOR LAW STUDENTS [{CHAP.

provided with houses and other property. It is possible with urbanisation and
brisk and prosperous internal and foreign trade coupled with the estab-
lishment of numerous entripots of trade the courtesans became indistinguish-
able from women of such type in modern industrial cities. By the time of
the Mauryas the institution of prostitution had come to stay.
We learn from the Arthasastra of Kautilya a prostitute noted for her
beauty, youth and accomplishments was appointed superintendent on a salary
of 1000 panas per annum. She not only looked after the welfare of the
prostitutes but arranged for their education in the relevant arts. Prostitutes
were employed by the state as spies. They had to carry a licence from the
state to carry on their profession by paying two days’ earning as licence fee
to the government. They attended the court regularly and also worked in the
royal household on a fat salary. They held the royal umbrella, golden pitcher
and fan, and attended upon the king seated on litter, throne, or chariot.
They were also employed in the storehouse, kitchen, bathroom, and the
harem of the king. The state had also arranged for their training becomes
evident from the following declaration of Kautilya: “‘Those who teach pros-
titutes, female slaves and actresses arts such as singing, dancing, acting,
writing, painting, playing on the instruments like lyre, pipe and drum, reading
the thoughts of others, shall be endowed with maintenance from the state.”’
It follows from what has been said above the secular view was favour-
able to prostitution; the religious view regarded it as an evil and disapproved
it. Manu and some other texts class the prostitute and gambler with a thief
and blackmailer, and declare that brahmanas must never consort with pros-
titutes, on pain of heavy penances. The murder of prostitute was not con-
sidered as sin and the murderer incurred ‘no punishment at Law’.*? The
secular view. prevailed over the religious ideal and the institution continued
to flourish. ,

7. Widows
No discussion on the status and position of women would be complete
without reference to the widows. The study is of absorbing interest as the
treatment given to them enables us to understand the attitude of the society
towards women in general. The study further reveals how a society which
attained a high state of culture failed to reflect the finer aspects of life in
the treatment of widows. A cultured society regarded widows as almost
non-entities, humiliated them, and considered their very look as inauspicious.
Under the circumstances, it should not surprise us therefore if she preferred

52. A.L. Basham, op. cit., p. 186.

Vi STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 13]

the anugamana-vrata or the sati to a disgraceful living. It is true that they

were permitted to hold property in their own right, but this did not improve
their position, though they became economically independent, their lot re-
mained unenviable.

The evidence in the Rig Veda regarding the widow is too meagre to
form any idea of her position. If the position enjoyed by women in general
is any guide, then it can be said that the position of widow was much better.
There is very little information regarding the obnoxious custom of Safi in
the funeral hymns of the Rig Veda. A semblance of this custom may be noticed
in X.18.8 of the Rig Veda ‘where the widow is asked to descend from the
funeral pyre of her dead husband on which she was first made to lie’. It is safe
to conclude, even if practised, it was not popular or must have confined to the
rajanya Class. The Rig Veda permits a childless widow to get a son by levirate
(niyoga). The niyoga was to be primarily with her brother-in-law and not with
any stranger. The purpose being that the child would have the maximum amount
of the family blood running in his vein and the property of the joint family
would not be affected. The discussion on the question of widow remarriage and
upholding the right of widow in her husband’s property are further proofs to
the non-prevalence of sati in the Vedic period.

The custom of sati was not vogue in India down to 400 B.C. There is
no reference to the custom in the Buddhist literature and the Arthsastra of
Kautilya. The authors of the dharmasutras and the dharmasastras are un-
aware of it. Stray references to safi occur in the Mahabharata. Four wives
of Vasudeva and five wives of Krishna committed sati, but Satyabhama,
another wife of Krishna retired to the forest. Similarly, Madri, second wife
of Pandu, committed sati, but not Kunti. The wives of Abhimanyu, Ghatot-
kacha and Drona of the Mahabharata age and Dasaratha and Ravana of the
Ramayana period did not immolate themselves.

The custom of sati began to gain popularity among the ruling classes
from around 400 A.D. and some smritikaras make mention of it, though
they do not hold it as an ideal for the widow. Even then, it was not that
widespread. Queen Prabhavati Gupta of the Vakataka dynasty did not com-
mit sati, while Yasomati, mother of Harsa did, during the first half of the
seventh century A.D. Contemporary social thinkers and writers abhorred the
custom becomes evident from the following statement of Bana: ‘‘To die
after one’s beloved is most fruitless. It is a custom followed by the foolish.
It is a mistake committed under infatuation. It is a reckless course followed
only on account of haste. It is a mistake of stupendous magnitude. It does
 132 HISTORY FOR LAW STUDENTS [CHAP.

no good whatsoever to the dead person. It does not help him in ascending
to heaven; it does not prevent him from sinking into hell. It does not at all
ensure union after death; the person who has died goes to the place deter-
mined by his own Karman, the person who accompanies him on the funeral
pyre goes to the hell reserved for those who are guilty of the sin of suicide.
On the other hand, by surviving the deceased, one can do much good both
to oneself and to the departed by offering prescribed oblations for his hap-
piness in the other world. By dying with him one can do good to neither.’’>?
Some thinkers like Angirasa, Harita extolled the custom of sati and it began
to gain popularity in north India.
All along the practice was confined to the ruling class. Not to be out-
done, a few of the brahmana families began to follow it around 1000 A.D.
In the Deccan and South India inscriptions refer to instances of sati in high
life, but it was not a common practice.
A reference has been made to the practice of niyoga in the Vedic period.
The smriti writers of the later period permit only one son to be raised by

three sons by niyoga. Though Pandu, desired to”hiibve more sons, Kunti
refused as the custom permitted only three. The custom was met with op-
position from 300 B.C. onwards/The smritikaras like Apastamba, Baud-
hayana and Manu expressly condemn it™and Manu, in particular, calls it
beastly and forbade its practice. Yet we find them laying down rules for the
procedure of niyoga. Narada, Yama and Parasara have recognised the cus-
tom, but it went out of vogue by about
the seventh century. >
Leet

The Vedic literature and dharmasutras

the allow remarriaagee of widows
enerally. Those who opposed this were not against the remarriage of child
widows. The later smritis disapprove
of the widow remarriage. Manu, Na-
_tada, and Vatsayana rrefer toaremarried widow
wido' as
as a punarbu. ‘A true wife
“must preserve her chastity as much after as before her husband’s death’,
says Manu. In case a widow found it difficult to exercise restraint, such a
widow (punarbu) could ally herself for a second time to a man. The punarbu
was a seeker after pleasure. She enjoyed the status of a mistress and she
was free to participate in all the social functions with her second husband,
but she could_not participate \with him in the performance of religious Tites.
This was the ‘special prerogative of the wedded life. rege
A woman can remarry with the recitation of the sacred mantras, ac-
cording to smritis under certain defined circumstances. They SpeCifically
53. Kadambari, Tr. A.S. Altekar, op. cit., pp., 124-25.
VV] STATUS AND POSITION OF WOMEN IN ANCIENT INDIA 133

speak of two circumstances, ‘a girl, abducted by force, and not wedded with
the recitation of the sacred texts, may be lawfully given to another man;
for, ““she is as good as a maiden’’, and a girl who is married with the
recitation of the sacred texts, but whose husband dies before the consum-
mation of the marriage. If such a woman is still a virgin, she can go through
the sacrament of vivaha’.* The growing importance attached to physical
chastity explains the gradual discouragement of widow remarriage and the
prohibition of remarriage began to be extended even to the cases of child
widows from about 1000 A.D. From about 1100 A.D. widow remarriages
completely disappeared from the society. The remarriage of widows con-
tinued among the lower orders of the society.
Widow’s right to inheritance was the subject of an animated discussion
among the jurists in ancient India. The subject did not engage their attention
as long as the custom of niyoga was in vogue and as her son was getting
a share in the property of the joint family. But with the prohibition of. the
custom of niyoga the determination of the right of widow to the property
of her deceased husband became necessary. We can identify three schools
of thought who hold divergent views on the subject. The Vedic texts, dhar-
masutras and the jurists like Apastamba,.Baudhayana,..Manu, Narada_and
Katyayana expressly reject_the widow’s claimtoproperty. They did not
recognise the widow as an heir. The second school represented by /Vishnu,
Yajnavalkya, Brihaspati and Prajapati regard widow having a natural right
to inherit all her husband’s property. Brihaspati declares that the husband
and the wife are the joint owners of family property and together constitute
one legal personality. Prajapati includes in the scope of property both ‘mo-
veables and immovables, bullion, ornaments, stores, etc. Vijnanesvara, the
author of Mitaksara also concurs with this view. The Bengal school repre-
sented by Jimutavahana (Dayabhaga school) though forcefully argues for
liberalising the law in favour of the widow ‘maintained that the widow had
only a life estate in her inheritance. She could utilise its full income in any
way she liked, but she could not touch its corpus’. In other words, he sanc-
tions only a limited power over her inheritance. The authors of theearly
dharmasustras and Kautilya assign only a “Maintenance to)the widow. y.
The
Mahabharata
permits thé Widow to utilise only the income of the property
inherited by her, but confers no power to sell or mortgage or gift it. In view
of the differing opinions of the jurists it would be safer to maintain that the
widow had only limited power over her inheritance in the period of our

54. Quoted from P.H. Prabhu, op. cit., pp. 193-94.

55. A.S. Altekar, op.cit., pp. 155-56.
134 HISTORY FOR LAW STUDENTS

concern. The situation in the Deccan and South India where Vijnanesvara
held greater sway was different from North India. In the south of Vindhyas
women could hold property in their own rights and this was true of widows
also. The inscription of South India bear testimony to this.
Though there were improvements in her position, the lot of the widow
remained an unenviable one. She was to shun all pleasures, lead an austere
life, live on one meal a day and sleep on bare ground and thus lead the life
of an ascetic. Her head was cleanly shaven, though this practice was given
up later. She was inauspicious to everyone, including her own son and she
hardly participated in family festivals as that would bring bad luck to those
present. ‘‘Always watched by the parents and relatives of her lord, lest she
broke her vows and imperiled the dead man’s spiritual welfare, shunned as
unlucky even by her servants, her life must have been miserable in the

This account of the status and position of women in ancient India makes
the reading painful in the extreme. The equality in status and position with
her opposite sex which she enjoyed in the Rig Vedic age was shortlived
and from then onwards she began to be treated as a second class citizen.
The society was unsympathetic to her cause and the small mercies that were
shown to her from time to time were shown only grudgingly. It is a tragedy
that many thinkers and jurists acquiesced with it. The only silver line in this
sordid picture is that the lower orders of the society, which constituted nearly
80% of the population, were free from many of the encumbrances.

56. A.L. Basham op. cit., p. 187.

 Chapter VI

Economic Structure in
Ancient India
I} is truism to say that the economic thought in any age - ancient,
medieval or modern—amirrors its life, and economic opinion moves with
the variations of economic conditions. The utility of studying the concept
of economy and the economic structure of the past of a country lies in
the fact it helps us to understand and visualise the life of our ancestors; to
recognise and interpret even the purpose of their daily activities; to
correct illusions in regard to our past; and to demonstrate how the
cultural environment of a people can have successors, in a genetic sense,
in no less than the people themselves. In India particularly past persists
in the present. The economic and social problems which confront us
today are either those which existed in the past or have resulted from
them. The physical background of the past is similar to the present day
and agriculture continues to be the corner-stone of our economy as was
the case with our ancestors. The vast schemes of protective irrigation of
the present day bear resemblance to similar works of utility in ancient
India which were justified as much by economic statesmanship as on
spiritual grounds. Hence a thorough knowledge of the past economic
institutions provides better insights into the understanding of the present
structure of economy.

1. Pastoralism
The study of the stages in the evolution of ancient Indian economy
from pastoralism to the emergence of developed economy, represented
by the stabilisation and expansion of agriculture, progress in industry,
rapid growth in trade and commerce, both internal and overseas, and
the advent of money economy, is truly fascinating. The Rig Vedic
people were primarily pastoral and naturally cows and bullocks were
their most valued possession. They were evidently valued for non-
vegetarian food and dairy products. These constituted the chief form
of wealth and a wealthy person was called gomat. They seem to have
adopted the pre-Aryan practice of tilling the soil which meant the
cutting of furrows in the field with wooden ploughshares. The
cultivable lands, cleared of thin forests, were rendered fertile by the floods
| i301
136 HISTORY FOR LAW STUDENTS |CHAP.

of the Punjab rivers and a number of their tributaries. It is difficult to as-

certain the exact nature of grain grown by the Rig Vedic people. The grain
that is frequently mentioned is Yava or barley, which ripens in sixty days.
Wheat, with which the neolithic people were familiar, is not mentioned and
so is rice which was not cultivated until a later period. Naturally barley
served as food for people and fodder for cattle and horses.
The people in the Rig Vedic period led the pastoral life is also suggested
by the use of the term vraja which means cow-pen, a term which in course
of time used to connote pasture ground. Settled life was promoted by cul-
tivation and sedentary living is presupposed by cattle rearing. These devel-
opments created an appropriate climate for the emergence of the institution
of property. At that stage the property could have consisted of cows, horses,
sons (who provided the labour power), sheep, chariots, plants, foodgrains,
personal effects like weapons, pots, vessels and clothing, houses and land,
The houses were made of timber, unbaked bricks and wattle and daub.
Land was yet to be regarded as a constituent of property in the true
sense of the term, for we find the Rig Vedic Aryans attaching great import-
ance to cattle rearing than agriculture. This is not difficult to understand
because they were uncertain about adequate production. Agriculture
depended on various factors; the wooden plough was unsuited for deep cut-
ting of furrows and hence the yield was poor. The use of iron ploughshare
was unknown and there was no assured water supply. This explains why
they shifted the cultivation from river bank to river bank. Regular source of
water was needed for the cattle as well. Also, they seem to have occupied
only a piece of land which did not last long. That land was not an item of
property becomes evident from the fact or paying sacrificial fee (dakshina)
in the form of a cow. Further, in the list of gifts, cattle, slaves, chariots and
horses are included and not land. Land must have been owned by the clan
and this is reinforced by the evidence of the later Vedic practice of giving
away land only with the consent of the clan. ‘Even when patriarchal families
came to own land in later times, for purposes of transfer through sale and
other means members of the kin were given preference over strangers in the
law-books’. Hence it follows that both cattle and land ‘may have been owned
by large families consisting of generations and collaterals’, and the concept
of private property in land was yet to emerge.
In the Rig Vedic period the various operations of agriculture such as
ploughing, sowing, reaping and threshing were done by family labour, There
is no reference in the Rig Veda to hired labourers or wage earners, but only
domestic slaves consisting mostly of women are mentioned. They ‘‘may
VI} ECONOMIC STRUCTURE IN ANCIENT INDIA 137

have been the first “wage earners’, who were paid for their labour by being
adopted in the family and fed and maintained’’. The absence of hired labour
inhibited the accumulation of private property.
In the pastoral economy of the Rig Vedic times no terms occur to denote
leasing and hiring, lending and borrowing, sale and purchase, and trade and
commerce. In the absence of coins in the Vedic period there was no practice
of money-lending on interest and the lack of surplus could not foster com-
merce.
The buying and selling were definitely practised, and it was done
through barter. The absence of commercial activity failed to create conditions
conducive for the accumulation of private property.!
It is not possible to assess definitely the population of Rig Vedic India
in the absence of certain means of assessing. The Rig Vedic people were a
migratory people and they were constantly on the move with their herds of
cattle. This suggests that the people were thinly scattered and their simple
needs were easily met by the pastoral economy. The cattle were an invalu-
able possession and the cattle economy made settled life difficult which was
further inhibited by the slow growth of agriculture. Pasture lands were, how-
ever, carefully looked after, and large sheds or stalls were erected for ac-
commodating cattle. The cows were taken extremely good care of.
The tribal society of the Rig Veda was marked by unequal distribution
of wealth where the chiefs cornered more shares than were due. Poverty is
echoed and the disparity between the rich and the poor increased towards
the end of the Rig Vedic period. It is however true that poverty was not so
grinding as it later became, where it came to be deplored and compared to
sonlessness.

2. Peasant Phase
The peasant phase began with the Rig Vedic people giving up migratory
habits, which made the settled life possible. The sedentary life presupposes
an assured and continuous means of subsistence. They realised the import-
ance of agriculture which became the main occupation of the people. The
Atharvaveda, Vajasaneyi, Maitrayani, Taittiriya, and Kathaka Samhitas,
and the Taittiriya and the Satapatha Brahmanas inform us that six, eight,
twelve and even twenty-four oxen were yoked to the large and heavy plough
to break the hard soil. The oxen were yoked and harnessed with traces and
guided by the goad of the ploughman. The furrow is often mentioned. The

1. R.S. Sharma, op. cit., pp. 24-32.

138 HISTORY FOR LAW STUDENTS [CHAP.

importance of field-agriculture was realised, and the ploughshare made of

Khadira, harder than the bones, was used on a considerable scale. Iron,
though was used for making weapons and clearing thick forests, does not
seem to have played an effective role in field-agriculture. The Atharvaveda
appreciates the value of the natural manure of the animals in the field. Men-
tion is also made of dung and dry cow-dung and they must have been used
as manure. Satapatha Brahmana gives a graphic description of various
operations of agriculture. The cultivators used charms at the time of both
sowing seed and harvesting corn to save the crops from the usual pests.
There are spells in the Atharvaveda to avert draught and excess of rains.
They had realised the importance of irrigation to agriculture is suggested by
the existence of some sort of a system of irrigation.
The later Vedic texts depict a society which was essentially agricultural.
The people produced not only barley, the main grain produced during the
Rig Vedic period, but also wheat, rice, several kinds of pulses, beans and
sesamum. The cultivation of different cereals and pulses points to the pre-
valence of ‘more than subsistence economy’. Peasants produced enough to
meet their needs, leaving a small surplus with which they maintained the
non-producing class such as priests, princes and their retinue, the artisans
and agricultural labourers. The peasant was the producer and the rest of the
social classes were his parasites. Such a development in agricultural econ-
omy was absent in the essentially pastoral society of the Rig Veda.
The use of iron implements for agriculture was not that widespread till
about 600 B.C. though iron sickles and other small implements were known.
Atharvaveda prescribes sacrifices for the peasants for acquiring material
benefits. An attempt was also made by the ruling class to establish their
authority over the producing peasant class. Rituals were developed to make
the peasantry subservient to the nobility. The numerically strong peasantry
came to be controlled by the nobles who were in a minority. The burden
of taxes fell on the peasants and they were considered ‘fit to be eaten’ both
by the rajanyas and the brahmanas. The king is repeatedly called the eater
of the peasants and he lived upon their labour. The taxes were collected in kind
at the rate of 1/12 or 1/10 of the produce. The Vedic texts like the Atharvaveda
and the Brahmanas state categorically that peasants were meant for paying
taxes. The king is called not the devourer of territory but of peasants.
The peasant phase witnessed the spread of food-producing economy and
the peasant sustained the rajanya/king and the priest and met the needs of
ritual from the surplus. The availability of surplus was limited and we have
to wait till 500 B.C. for the emergence of ‘burgeoning agriculture’. There
Vi) ECONOMIC STRUCTURE IN ANCIENT INDIA 139

was resistance to heavy exactions by the peasants, but he could get no relief
as many of the levies had ritualistic support.
The sedentary and settled agricultural life led ‘to the beginnings of
property in houses and possibly in land’ in addition to the other items pre-
viously mentioned. Still the tribal practice of owning things in common
under the general control of the ruling tribe continued. Land was yet to be
regarded as an item of private property and giving away land as gift was
not practised on any scale. We hear about the grant of land by the king, but
he could do so only with the consent of the clan or vis. But actual instances
of land gifts are noted by their absence. “‘In a completely non-monetary
small-scale agriculturist society, such as the later Vedic society, land could
be used and occupied by large peasant families consisting of four generations
Or more, but it could not be granted to a person outside the kinship group
without invoking the overall authority of the king and the clan’’.? These
suggest that the idea of individual proprietary rights over land had not de-
veloped and there is no evidence ‘to show that peasants had to pay for
cultivating a piece of land’.*

3. The village
The formation of the village or grama, the lowest unit of administration
and the basic centre of economic activity, in which lives nearly 85% of
people even today, marked a significant change in the pastoral life of the
Rig Vedic people. It meant the end of the migratory habits and marked the
beginning of sedentary or settled life.
According to R.S. Sharma, though the term grama popularly came to
be used in the sense of village, originally it denoted a body of men. In one
context in the Rig Veda grama is identical with jana or tribe. The Satapatha
Brahmana refers to Saryata Manava roaming about with his grama or
people (clansmen). The needs of procuring subsistence brought people from
various stocks together, which later developed some kind of kin-based ident-
ity. Once its members settled down at a place, took to agriculture and began
to lead a sedentary life, it came to be understood in the sense of village.
The use of the term grama in this sense was known in the Rig Vedic age
and at several places grama is distinguished from aranya for forest. Grama
was recognised as the habitation of the collectives of varied interests coming
together to play an important part of economic activities, both of the earning
of subsistence and distribution of resources. Grama consisted of grihas and

2. R.S. Sharma, op. cit., p. 73.

3. Ibid, pp. 47-48.
140 HISTORY FOR LAW STUDENTS [CHAP.

griha was the lowest unit. Griha meant a large family which consisted
members of four generations. Griha is sometimes identified with the Vidatha.
Villages, in the Vedic age, were formed in clearings cut out of the
primeval forests where dwelt the kin-based groups. The villages were usually
walled or stockaded to protect themselves and their property from the
ravages of wild animals. In course of time the peculiar type of walling “be-
came the emblem of protection and universally used, not only enclose the
village, but as a paling around fields, and eventually to preserve anything
of a special or sacred nature’. In the wall encircling the village, entrances
also of a peculiar kind were devised. These were formed by projecting a
section of the bamboo fence at right angles and placing a gateway in advance
of it after the fashion of a barbican, the actual gate resembling a primitive
gramadvara. Through the gramadvaras the cattle passed to and from their
pasturage. These gramadvaras still survive in the gopurams or entrance
gateways of the temple enclosures in south Indian temples.* In the sub-
sequent period bamboo structures were replaced by permanent walls which
could be seen in many parts of the Deccan even at present.
The village was no more than a cluster of dwellings of various sizes,
grouped generally ‘round a well or a pond, near which was a small open
space with a few trees’. Each village had a community hall, which served
as centre of political and social life. It was also used as rest-house for the
travelling public. The villagers constituted a self-conscious community, and
often had an energetic communal life.> The villages were well-knit and the
vigorous corporate life in the village is thus depicted in a Jataka story.
‘“‘One day they stood in the middle of the village to transact village business,
and they... (decided to) do good works; so they would get up betimes, and
go out with knives, axes and crowbars. With their crowbars they rolled away
the stones on the four highways; they cut down the trees which caught the
axles of their carts; they levelled the irregularities (of the roads); they built
an embankment and dug tanks; they made a village hall; they showed charity
and kept the (Buddhist) commandments’’.® It is evident from this the village
communities did not look up to government, as in our time, to provide for
their basic or essential requirements and met them from out of their own
resources. Inscriptions from the Tamil country like the Uttaramerur and
Ukkal records show that the village councils (mahasabha) took an active
interest in communal welfare, dug and renovated reservoirs, maintained

4, Percy Brown, Indian Architecture Vol. I, p. 3.

5. A.L. Basham, op. cit., p. 190.
6. Quoted in A.L. Basham’s The Wonder that was India, p. 130.
VI) ECONOMIC STRUCTURE IN ANCIENT INDIA 14]

proper communication, provided for primary education, settled disputes and

pronounced judgments.’ ‘This strong sense of community was one of the
chief factors in the survival of Hindu culture’. Such an active corporate life
continued down to the Middle ages.
The most important economic function of the villagers was agriculture.
In a way the villages were self-contained, but they depended on others for
their requirement of salt and metals. In the beginning the peasant holdings
were small though in later period reference is made to a few large farmsteads.
Landless labourers who were noticed by their absence in the Rig Vedic
period begin to surface in the post-Vedic period. In spite of the hazards of
village life, the peasants seem to have led a happy and contended life. The
pressure of population on the means of subsistence was not great as it has
now become. As a centre of rural economy the village played an important
role in ensuring the financial stability of the state, and the state, being con-
scious of it, bestowed greater attention on conserving and expanding this
vital resource base. Kautilya formulated a positive policy of colonisation,
clearing of waste and development of new villages. A very graphic and
realistic view of the village of those days is also given by him. The village
land, according to him, was made up of the following parts: (1) krishta
(cultivated), (2) akrishta (uncultivated wastes or fallow land), (3) sthala
(high and dry ground), (4) kedara (fields sown with crops), (5) arama
(grove), (6) shanda (plantations of fruits like plantains), (7) mula-vapa
(fields for growing roots like ginger, turmeric and the like), (8) vata (su-
garcane plantations), (9) vana (forest for supply of firewood and other
needs), (10) vivita (grazing ground for village cattle), and (11) pathi (areas
covered by roads).
In addition to these, the village proper as a settlement of the people
must be marked by the following features or fixtures: (1) vastu (area covered
by houses), (2) chaitya (sacred trees), (3) devagriha (temples), (4) setu-
bandha (embankments), (5) samasana (cremation grounds), (6) sattra (alma-
house), (7) prapa (storage of drinking water), (8) punyasthana (sacred spots)
and halls of public amusements such as music, dancing, theatrical perfor-
mances (preksha) and public dinners (pravahana).®
The village was not only a centre of rural economy but also a centre
for social and cultural activities. Village encouraged fine arts like music,
dancing and drama and honoured those who were proficient in their respec-

7. See Chapter III.

8. Age of Imperial Unity, p. 596.
142 HISTORY FOR LAW STUDENTS [CHAP.

tive fields. It was the bastion of Indian culture and hence the statement that
India lives in villages. In spite of the giant strides we have made in science
and technology, Indian economy continue to revolve round the village.

4. Agriculture and Stockbreeding

In ancient India, as in modern times, agriculture was the main stay of
both the people and the government. Ancient industries, as are today, were
agriculture-based. This explains why the promotion of agriculture was in-
cluded within the scope of the state activity. Closely allied to agriculture
was stockbreeding, the value of which was emphasised by the ancient Indian
works on statecraft and the sacred works like the Mahabharata. Cattle-re-
aring, as we have noticed, played an important role in the pastoral economy.
Even in the subsequent periods the value of cattle as the producer of dairy
products as well as manure were fully realised.
Agriculture could not make rapid progress in the pre-Buddhist period
as iron was not widely used in agricultural operation. But the period from
600 to 322 B.C. is marked by a significant change in agricultural economy.
This was made possible by the widespread use of agricultural implements
made of iron and the iron ploughshare both in the gangetic basin and Bihar.
Iron ploughshare enabled deep and continuous ploughing of the hard clay
soil in the alluvial/tracts and prepare the ground for planting mustard, paddy
seedlings and for planting sugarcane. Iron technology revolutionised agri-
culture in more ways than one. Improved knowledge of agriculture and the
effective use of implements like hoe, spade, etc., in addition to iron plough-
share, contributed much to the economic progress during the period.
From this period onwards there was a gradual expansion of cultivation
as a result of pressure on land. Forests were cleared and burnt and more
land brought under the plough. For the development of rural economy the
Arthasastra advocates the founding of new settlements and rehabilitating
the decaying ones. Concessions in the form of remission of taxes and the
supply of cattle, seed and money were given for bringing virgin soil under
the plough. New settlements were granted to retired village officials and
priests with the sole purpose of extending cultivation. Such lands could not
be sold, mortgaged or inherited. In the post-Mauryan period there are in-
stances of the extension of cultivable area by individual efforts. Milinda-
panho refers to individual who clears the forest and takes other steps for
making the land fit for cultivation and he is called the owner of the land.
This is also corroborated by Manu when he declared: ‘‘The sages declare a
field to belong to him who clears away the timber, and a deer to him who
first wounded it.’’ Manu further states that ‘the acceptance of an untilled
Vi) ECONOMIC STRUCTURE IN ANCIENT INDIA 143

field by a brahmana is less blameable than that of a tilled one’’. No cultivable

land was allowed to remain fallow. The Arthasastra and Naradasmriti de-
clare that if the owner of the land is unable to cultivate it, any stranger
could cultivate the land and appropriate the produce. These suggest the
measures that the state undertook to extend the area of cultivation and to
maintain the level of production to feed the growing population.
On the basis of the Buddhist literature R.S. Sharma? has shown how
great importance was attached to agriculture and how the early Buddhist
teachings gave special attention to the types of fields. In one sutta the field
is classified as (i) best (ii) middling and (iii) bad, forested and infertile.
Similarly, the monks are compared to the best field, the lay devotees to the
middling, and the sramanas, brahamanas and ascetics of other religious per-
suation to the field of bad quality. The Khetta Sutta refers to eight types
of fields where the yield was negligible. These included ‘undulating, rocky
and pebly, saltish, without depth of tilt, without water outlet, without inlet,
with no watercourses and without dykes’. Those who possessed the opposite
qualities are said to be good types. The detailed description of the different
types of fields suggests that the peasants had acquired adequate knowledge
about wet paddy cultivation.
The Buddhist concern for plough agriculture could be gathered from
the details given about cultivating and sowing in the Buddhist texts. The
farmer is advised to prepare the ground carefully, to sow seeds in a well
thought out manner, and to supply water to the land on time. The following
simile which the Buddha gave to farmer Bharadwaja during the course of
his religious discourses brings out the importance of agriculture.
‘Faith is the seed, and rain the discipline.
Insight for me is the plough fitted with yoke,
My pole is conscience and sense-mind the tie,
And mindfulness my ploughshare and my goad.’’'®
Elsewhere, ‘the functions of a peasant are considered as forming an
allegorical model to be followed by a monk’. Just as a peasant householder
cultivates his field carefully, prepares the soil suitably in good time, plants
the seeds without the loss of time, supplies water and lets it out in time;
similarly ‘a monk is advised to undertake training in higher morality, higher
thought and higher insight’. Again, just as the peasant householder, when
his field is ripe, ‘quickly reaps it, harvests it, puts it in stocks, treads it out,

9. R.S. Sharma, op. cit., 99.

10. Ibid, p. 120.
144 HISTORY FOR LAW STUDENTS {CHAP.

pulls off the stalks, winnows away the chaff, collects the rice, threshes it
out and removes the husks’, thus making his crops reach perfection in a
similar way the monk is advised to be alert and active for his spiritual growth
and final emancipation from the endless cycle of births and deaths. These
similies show the extreme importance that the Buddhists attached to agri-
culture. ‘‘Jnatadharma Katha’’ gives a graphic description of the entire
operations involved in paddy cultivation.!11
The Buddhist rejection of Vedic sacrifices in which animals were
slaughtered and the Buddhist and Jaina emphasis on ahimsa enabled the
preservation of cattle to meet the needs of new agriculture, namely, the iron
plough agriculture. The suttanipata identifies agriculture with cow-keeping.
A person who lives on cattle rearing is identified with cultivator. These
measures made possible the stabilisation and promotion of material life.!12
The state was oblivious to the needs of agriculture. Kautilya advises the
state to maintain its own farms, worked by forced labour, under the super-
vision of the superintendent of agriculture (Sitadhyaksa). From these model
agricultural farms were collected the quality seeds of various crops to be
grown and they were distributed to the peasants. Varahamihira in his mag-
namopus, the Brihatsamhita, gives elaborate rules for the preparation of the
soil, for grafting a tree-branch on another tree and for watering the trees at
the proper season. He also gives rules for spacing the trees, for treating their
diseases and for promoting the growth of fruits and flowers of the trees,
creepers and shrubs. There are elaborate directions for treatment of the seeds
and for digging the pit for sowing the same. Government also maintained
flower, fruit and vegetable gardens. Forests were grown for the breeding of
elephants so necessary for economic and military purposes under a special
conservator of forests (nagavanadhyaksa). These show the concern of the
government towards this important economic activity, namely, agriculture.
The state assured safety for agricultural operations. The law-givers came
down heavily on those who disrupted agricultural operations. Manu enjoins
the king to punish people for the theft of agricultural implements and pro-
vides mutilation for selling false seed corn, for taking up seed already sown
and for destroying boundary marks. Brihaspati lays down that the stealers
of agricultural implements or crops must be made to pay ten times to the
owner as damages and double the damages to the state as fine. Mutilation
of hand is also prescribed as punishment, Kautilya, before them, was aware
of the hazards of agriculture becomes evident from the following statements.

11. R.S. Sharma, op. cit., pp. 120-121.

12. The Chassical Age, p. 591.
V1} ECONOMIC STRUCTURE IN ANCIENT INDIA 145

‘Persons who obstruct, or make any kind of mischief’’, says he, “‘with the
flow of water intended for cultivation shall be punished with first amer-
cement’. Again, “‘if a cultivator or a neighbour makes encroachment upon
a field during the time of sowing seeds, he shall be fined 12 panas, unless
the encroachment is due to evils, calamities or intolerable occurrences arising
otherwise from the field’’.'’ If the farmers failed to cultivate the plots they
were transferred for better use. Under no circumstances the cultivable land
was allowed to remain fallow.
Importance of irrigation to Indian agricultural conditions was fully rec-
ognised. The literary texts of the period show the knowledge of irrigation.
A concrete illustration of the state care for agriculture is furnished by the
Girnar inscriptions. According to the inscription, a lake called Sudarsana
was constructed, under the orders of the Mauryan ruler, by Yavanaraja Tu-
syapa, the Governor of Saurashtra. The embankments of the lake were
breached during the time of Rudradaman I (2nd Century A.D.), a Western
Ksatrapa ruler, who got it repaired with forced labour, benevolences, and
taxes on fruits and flowers. The embankments were again repaired during
the time of Skandagupta of the Gupta dynasty. Probably the largest achieve-
ment of India in irrigation until recent years was the lake at Bhojpur, near
Bhopal, built in the middle of the eleventh century by Paramara Bhoja. In
the extreme north of India there is reference to Suyya, a great engineer in
the service of King Avanti Varman of Kashmir, who ‘made the streams of
Indus and Jhelum flow according to his will, like a snake-charmer, his
snakes’. There is also clear evidence about the use of the Persian water-wheel
(arahatta), turned by an ox, in northern India during the early medieval period.
Some of the irrigation works are still in use in different parts of the country.
Our sources refer to two principal harvests, one in the summer and the
other in autumn. There was a minor spring crop as well. Rice of several
varieties, wheat, barley, peas, lentils, oilseeds of many kinds, ginger and
other vegetables, papers and other spices, medicinal and other herbs, sugar-
cane were some of the important agricultural products grown in the period
of our concern. Greek and Arab writers refer to the fertility of the soil and
the rich cultivation of both grain and fruits. Magadha was famous for its
rice, while Kashmir for fruits, saffron and yellow sandal; Ratnagiri and Dak-
shina Kannada for dates and coconuts; Pandyan Kingdom for edible econ-
omic products, ginger, cinnamon and camphor, Bengal for spirezard, ginger,
sugar and cotton; and Quilon and Malabar regions for cardamom, bamboo,
ginger, camphor, pepper and indigo.

13. R. Shamasastry, op. cit., p. 194.

146 HISTORY FOR LAW STUDENTS [CHAP.

Ancient India was mainly an agricultural country with an abundance of

rural settlements. Emphasis was laid on rural area, because it was the rural
area that provided the natural resources for building of forts, dams and econ-
omic projects. Manpower also came chiefly from the country-side. The new
forces of production in the villages released sufficient surplus which prepared
the ground for urbanisation and with it industry and trade. Village thus re-
mained the backbone of Indian economy.
Agriculture depended upon cattle comprising of cows, buffaloes, etc.,
and hence importance was attached to stockbreeding. A reference has already
been made to the prayers and rites for prosperity in cattle and their good
health. There was a ceremony for cattle breeding and it was clearly under-
stood that agriculture depended on cattle wealth. Protection of cattle was
regarded as one of the important functions of the householder. The emphasis
on the protection of cattle in the teachings of Jainism and Buddhism show
that they had kept in mind the needs of animal husbandry.
The state maintained cattle-studs, and dairy farms and employed on their
staff a cowherd, a man in charge of buffaloes, a milker, a churner, assisted
by a body of hunters and keepers of hunting hounds to keep pastures clear
of wild animals and beasts of prey. The cattle-farms reared calves, draught
oxen, stud-bulls and buffaloes.'* Buffaloes, oxen and camel were used as
the beasts of burden. Goats and sheep were valued for the production of
wool fabric. Horses and elephants played an important role in ancient war-
fare. Horse was used to draw the chariots. Dogs and pigs were domesticated.
In fact, the Buddhists preferred pork to beaf. Fowl, parrots and peacock
were known and the parrots and mynahs were very popular as pets. Silk-
worms were bred and reared in Bengal and Assam while Malabar was fa-
mous for pearl fisheries.

5. Origin and Types of Property

It is not easy to determine the origin of property. According to R.S.
Sharma, the term pana, which later came to mean coin, and dhana, which
later came to mean wealth, is used in the earliest portion of the Rig Veda
as prizes, wagers, or stakes won as a result of either war or competition.
He concludes from this the acquisition of property involves serious effort
including war. *‘Loptra or loot (spoils of war) finds corresponding words
in all important Indo-Aryan languages. This seems to have been the earliest
source of property for the Rig Vedic people.’’!>

14. Age of Imperial Unity, p. 596.

15. Op. cit., pp. 27-28.
Vi} ECONOMIC STRUCTURE IN ANCIENT INDIA 147

In the Rig Vedic period items like livestock, sons, chariots, plants,
foodgrains and personal effects such as weapons, pots, vessels, clothing and
other household articles were constituted the property. Among the immov-
able property, land and house were yet to be considered as private property
in the Rig Vedic period. This is not difficult to understand because Rig
Vedic people were migratory in nature and neither they had a permanent
dwelling nor cultivated a piece of land on any permanent basis. However,
in the post-Vedic period, the grihyasutras, dealing with domestic rites, sug-
gest permanent houses. Land was under the general control of the ruling
tribe and the chief could grant the land with the consent of the king.
When the people began to lead a settled life, they began to own small
pieces of cultivable land and these pieces necessarily belonged to individuals.
With the use of iron ploughshare and with an assured water supply, agri-
cultural production was on the raise, the importance of land was fully re-
alised. This development took place during the time of Buddha. Property
now came to consist of land and precious metals like gold and silver.
Spoils of war, cattle and women slaves constituted the main forms of
property. To this may be added horses, ornaments made of precious metals
and weapons. By now a clear idea of movable and immovable property had
come to be formed. ‘Provisions for saluting leaders of robbers and burglars
in the Yajus texts presuppose a great deal of movable property, and indicate
that the process of establishing the sanctity of property was not smooth’.
With the progress attained in material culture, coupled with the rapid strides
made in industry and trade, the notion of property underwent a change and
whatever one possessed either by inheritance or by self efforts, movable and im-
movable included, came to constitute property in the modern sense of the term.

6. Urban Centres
Urbanisation envisages a state of development where, among other
things, a compact conglomeration of inhabitants within a delimited area, a
central governing organism, and the materially productive units exist. Such
conditions cannot be expected in a rural society with a dispersed population
spread over a large area, a loose administrative set-up and with cultivation,
which left no large surplus, as the principal productive activity. Urban centre
can flourish only when an agriculturally prosperous hinterland exist, because,
economic activities depend on rural areas and the urban people are fed by
the villages. Th@ urbuner is a parasite of the villager, for it was the latter
who supplied the raw materials with which he worked and the commodities
or the agricultural and forest produce with which he performed his commercial
148 HISTORY FOR LAW STUDENTS [CHAP.

activities. Commercial intercourse enabled the urban centres to acquire via-

bility, to accumulate wealth, and greatly ramify the orbit of their business
operations.
India of 600 B.C. met most of these requirements and it has been aptly
described as second urbanisation. The use of iron ploughshare and other iron
implements played a crucial role in opening the thickly vegetation-covered
areas of the middle gangetic basin and north-eastern parts of India and made
settlement and cultivation possible. The new agriculture led to the production
of surplus on a scale never attained before and for the distribution of the
social surplus developed trade and towns. The ground was prepared for the
rise of urban settlements.
Whatever may be the origin of a town which eventually became a mar-
ket, reference to town occurs in the Mahabharata. ‘The Adiparva of the
Jaya-Samhita speaks of pura, paura and nagara, all indicating urbanism.
The earliest model of urban settlement is provided by Kautilya. The Buddhist
literature refer to twenty towns of which six were associated with the Budd-
ha’s ‘great Decease’ (Mahaparinirvana ). An ancient Buddhist tradition in-
forms us that at the time of the Buddha’s mahaparinirvana, Ananda, his
disciple, expressed his regret that his master was to die in so small a town
as Kusinagraa and mentioned the six cities which he considered important
enough for a Buddha to die in: Sravasti, Campa, Rajagriha, Saketa (the later
Ayodhya), Kausambi and Kasi. In addition we may mention Vaisali, Pata-
liputra, Chirand, Sringaverpur, Piprahwa, Tilanrakot, and Lauriyanandan-
garh. These were evidently the greatest cities in the pre-Mauryan period.
Campa, the capital of Anga, was one of the most flourishing cities.
According to Digha Nikaya, it was one of the six principal cities of India.
It was a great centre of trade and commerce and the merchants of Campa
sailed to distant Suvarnabhumi. Kasi and Kausambi had an antiquity of cen-
turies and were noted centres of pilgrimage and commerce. Sravasti, Saketa
were the two important cities in the kingdom of Kosala, and the former was
the capital of northern Kosala. Rajagriha, the first capital of Magadha, was
a garden city, with a central core, and houses in the suburbs surrounded by
extensive parks and fields. The first Buddhist conference was held at
Rajagriha. At a later date, the capital was transferred from Rajagriha to
Pataliputra (Pataligrama), which, under the Mauryas, became the mistress
of India. Megasthenes has left a vivid account of the extent of the city and
its administration. During the time of Asoka the third Buddhist council was
held here. In the Gupta period Pataliputra became the humming trade centre.
VI] ECONOMIC STRUCTURE IN ANCIENT INDIA 149

The Ubhayabhisarika mentions the shops of Pataliputra filled with all kinds
of goods and their buyers and sellers.
Kushana India saw not only the highest peak of urbanisation, but also
of crafts, commerce and monetary economy. Kaniska occupied the silk routes
of Central Asia and the great northern route. As a result Indian culture,
religion and trade spread with force from Termiz Valley in the east and
Sogdiana in the west. During this period India’s trade and commerce had
reached its zenith, and this gave a tremendous impetus to urban development.
That perhaps in no other period had money economy penetrated so deeply
into the life of the common people of the towns and the suburbs as during
this period, a development which agrees well with the growth of arts and
crafts. The artisans and traders called setthis accounted for a large proportion
of city population and were engaged in trade and commerce.
The rapid growth of trade, finance and industry gave a great fillip to
urban development during the Gupta period. Trade with the West resulted
in the rise of ports like Broach, Sopara, Kalyana, Thana, Nagapura; Chaul
and Cranganore. Correspondingly, there was rapid progress in cities. Math-
ura, Prayaga, Kausambi, Varanasi, Pataliputra and Ujjain were ranked as big
metropolitan centres. ‘Ujjain was a city of spectacular variety, colour and
gaiety, fashion and luxury, riches and taste, din and crowd, a veritable cos-
mopolis’. It was a humming trade centre. The Padmaprabritakam mentions
that the markets of Ujjain which was also known as international city were
filled with heaps of foreign goods. Kalidasa gives an admirable description
of the glory and splendour of Ujjain, its buildings and the way that wealth
was displayed. It was no doubt an affluent and wealthy city. In these me-
tropolitan centres of the Gupta times gold flowed in from all directions and
filled the houses of the millionaires and multimillionaires and there they
stayed without finding an outlet. This affluence gave rise to the motif of the
rain of gold in literature. Apparently this age saw not only the peak of
urbanisation, but also of crafts, commerce and monetary economy which
facilitated both internal and overseas trade. The natural consequence of this
prosperity was the growth of a new worldly, material and spiritual outlook
the people showed to life in this world than the world hereafter. ‘‘Of this
life and the other life, this one is better, because its fruit is present before
us. The people led a high standard of life.”’
Similarly, in South India, cities like Pratisthana or Paithan, Nasik, Ba-
dami, Aihole, Madurai, Kanchi and the port town of Puhar or Kaveripattinam
were important urban centres. They were also nerve centres of trade and
commerce and in cities like Kaveripattinam foreign traders had established
150 HISTORY FOR LAW STUDENTS [|CHAP.

their own agencies which did brisk business. These cities were a source of
pride to its inhabitants. The cities were connected with one another by well-
laid roads. Kautilya speaks of different classes of roads like rajamarga,
which must have the main thoroughfare, and the smaller ones used by beasts
of burden, pedestrians or conveyances. He advises the king to clear the roads
of traffic from the molestations of courtiers, of workmen, of robbers, and
of boundary guards and also keep them from being destroyed by herds of
cattle.'° Pataliputra was connected with the North-Western Frontier by a
lengthy road of 1850 kilometres and it was 9.8 metres wide. This was
rajamarga or royal road, which was used for trading with the Middle-East-
ern and Greek countries. Similarly Pataliputra was connected with Ujjain
and other important cities of north and south India.
The cities prospered as long as Indian merchants traded directly with
the outside world. But by the end of the 7th century the Arabs got control
of the sea trade, Indian shipping began to decline and with it began the
decline of the cities. The decline and disappearance of the towns in the later
Gupta and post-Gupta times is attested by excavations, the limited use of
money and the almost total absence of gold coins. It may also be ‘viewed
in the context of slow-moving trade, fossilizing of craft-guilds into castes,
sagging coinage, and growing payment in kind and land grants’.'”

7. Guilds
The guilds played a significant role in the promotion of trade, crafts
and industries in ancient India. According to Gautama some people following
different professions grouped themselves into organised bodies for the pro-
motion of their individual as well as collective interests and these were
called the guilds. He further says that the exploitation of one class by the
other has also caused the emergence of the guilds or corporations formed
for economic activity. These are called by different names in different
periods, such as kula, sreni, sangha, jati samudaya, samuha, parishat,
varga, Saroda, nigama, etc. The Buddhist texts, the Mahabharata and the
ancient thinkers like Panini, Kautilya, Yajnavalkya and Manu give a vivid
description abovt these corporations.'®
The earliest reference to the corporation of merchants is found in the
Rig Veda, where the gods were asked to attack the Panis, who according
to Ludwig, were aboriginal traders, who went out in caravans and who were

16. R. Shamasastry, op. cit., p. 48.

17. R.S. Sharma, op. cit., p. 17.
18. R. Shamasastry, op. cit., pp. 53-54.
 Vi} ECONOMIC STRUCTURE IN ANCIENT INDIA 15]

ready to fight and resist the attack of Aryan invaders. R.K. Mookerji remakrs:
“In all the references to Vedic literature the manner of accession to the
head of the guild and his high social position and pre-eminent influence
seem to support the conclusion expressed by some Vedic schools that the
guild was then already a well-known and familiar institution.”’
The terms gana, puga, vrata and sangha in Panini’s Asthadhyayi show
the rise of guilds coincided with the growth of industry. The Ramayana
used the term nigama in the sense of a society of traders and craftsmen,
and Mahabharata to mean a guild of merchants.
Several factors like the freedom for industrial classes, localisation of
industries, heredity of occupation and the growth of industries caused the
emergence of these Sanghas and Srenis. The Pali texts suggest that some
important industries were located either in separate villages or parts of towns.
They mention many such organisations such as dautaharasviti rajakaviti,
mahabdkaki, gama, kammara, gamasti who were specialists in a particular
craft and located separately. This is attested by Kautilya. He says on the
eastern side of the town merchants trading in scents, garlands, grains and
liquids together with expert artisans and the people of the kshatriya caste
shal! have their habitation. To the west, artisans manufacturing worsted
threads, cotton threads, bamboo mats, skins, armour, weapons as well as the
people of the sudra caste shall have their dwellings. To the north, ironsmiths,
artisans working in precious metals as well as the brahmanas shall have their
houses. In the several corners guilds and corporators of workers are to be settled.
The guild was headed by a chief called Sresti, who was assisted by an
advisory council consisting of senior members. The composition of advisory
council varied from one to three and five members. According to Yajnaval-
kya the head of the guild must be an honest person, well acquainted with
the Vedas and with duty, able, self-controlled, sprang from noble family
and skilled in every business. The office of the Sresti was hereditary and
was held by one of the richest members of the guild. In the Pali texts the
Sresti is invariably described as a very wealthy man, carrying much in-
fluence in the palace and a close confidant of the king. Sresti was the official
tepresentative of the commercial community and also the treasurer of the
On behalf of the guild, he received deposits from the public and gave
‘it to the members of the guild either as loan or as grant.
The strongest factor which bound the constituents as close, homo-
unit was the operation of the independent law of the guilds. There
re detailed descriptions about the qualification of members and other re-
. . Yajnavalkya prescribes three types of examination for a person
152 HISTORY FOR LAW STUDENTS {CHAP

who wants to become a member. In the first test, the person to be examined
was made to drink three mouthful of water in which the image of the deity
whom he holds sacred has been bathed and worshipped. If he met with any
calamity within a week or fortnight of the ordeal, it was regarded as proof
of his guilt. Otherwise, he was considered as being worthy of becoming a
member of the guild. The second test is referred to as Lekhani, a written
document or an undertaking in writing by which the member agreed to abide
by the rules and regulations of the guild. The third is madhyasta, an arbi-
trator who could attest to the faithfulness and good behaviour of the member
in his relationships with the organisation.
The guild had a vody of executive officers who were elected by the
members of the guild. The executive officers were to be well versed in the
Vedas, pure in monetary dealings and of good behaviour. They supervised
all the transactions of the guild. The number of executive officers varied
from five to ten members.
The guilds played a vital role in the political, social, economic and
religious life of the people. The guilds acted as bankers; they accepted de-
posits and lent money on interest. Their financial reputation was so high
that even kings and nobles, and chiefs considered guilds safe for such de-
posits. An inscription in a cave at Nasik, dated 120 A.D. records the gift of
3000 Karshapanas by Ushavadata, son-in-law of Nahapana, who donated
this amount to the benefit of the monks living in the cave there. The entire
amount was invested in two deposits; one of 2000 Karshapanas at 1%
interest per month and another of 1000 Karshapanas at 3/4% interest per
month with the weavers’ guild for supplying annually to everyone of the
twenty monks twelve Kahapanas as cloth money and the rest to meet their
sundry expenses. Another inscription at the same place speaks of a deposit
of 500 Karshapanas with the guild of oil millers. An inscription at Junnar,
dated 1165 A.D., records the investment of money with the guild of bamboo
workers and the guild of braziers. Chandragupta I] Vikramaditya made two
deposits of 20 dinars to maintain two alms houses out of the interest accrued
on the amount. Similarly, Kumaragupta made two deposits of 12 and 13
dinars respectively also for the maintenance of two alms houses.
These instances clearly show that the guilds performed the function of
modern banks. The guilds used these deposits as their capital which they
lent to their members to start new industry or trade. They also lent money
to the needy on interest as the modern banks do at present. Most of these
were permanent deposits. Guilds also served as treasury office. The Lokes-
vara inscription of Vikramaditya of the Western Chalukyas of Badami in-
Vi} ECONOMIC STRUCTURE IN ANCIENT INDIA 153

forms us that the guild of Braziers was authorised by the state to realise
taxes from the people. The guilds also acted as trustees of public properties.
So important was this function of the guilds of acting as trustees of public
properties and so much prestige attached to it that one of the privileges
claimed by the merchants in the charter of Vishnusena (593 A.D.) was that
no trust should be consigned to government officials and every trust should
rather be administered by the guilds, for the kingdoms may come and go
but the guilds go on for ever. The guilds played an important part in gov-
ernment work. They were bodies of highest financial integrity and they co-
operated in public administration.
The guilds had their own distinctive insignia, flags and seals. They is-
sued their own coins. Alexander Cunningham is of the opinion that private
coinage is of extreme antiquity and the puranas (coins of the period) agree
in character with one species at least of private coinage, which was in vogue
for a long time. It is reasonable to suppose that the puranas were issued
not by any state but by bankers and merchant guilds. This hypothesis can
alone explain their number and their wide distribution.
Gantama speaks of guilds of cultivators, traders, cattle-feeders, money-
lenders and artisans having liberty to lay down their own laws to be respected
by the king and prescribes the legal procedures that was to be followed by
the guilds. The Vinayapitaka bears clear testimony to the great influence
the guilds exercised over the members. It lays down two disciplinary duties,
first, the guild was entitled to arbitrate on certain occasions between mem-
bers and their wives, and second, its permission was required for their or-
dination of the wife of any of the members. It fixed the rules of work and
wages, and standards and prices for commodities in which the members
dealt. It had judicial rights over its members, which were recognised by the
state. It could expel a refractory member, a penalty which would virtually
preclude him from practising his ancestral trade and reduce him to beggary.!°
The orders of the advisers were to be obeyed by all the members and their
violations were punished with heavy fine, confiscation, imprisonment or ban-
ishment. Heads of the guilds visited the offending members with verbal
censure or excommunication and the king approved the penalties. If any
member made a frivolous speech, he was punished with fine. For committing
violent crime or causing split or destroying its property, the concerned mem-
ber was proclaimed guilty by wetking and uprooted thereafter. The rules
were reduced to writing.

19. A.L. Basham op. cit., p. 217.

154 HISTORY FOR LAW STUDENTS [CHAP.

The guilds were characterised by territorial and social mobility. The

Mandasor inscription informs us of the guild of silk-weavers migrated in a
body from Lata to Mandasor (Eastern Malva). Some of them gave up the
profession of weaving and took to vocations like archery, astrology, story-
telling, religious preachings etc., still they continued to be regarded as mem-
bers of the parent guild, though this could only be for a time.
The guilds maintained their own militia to guard its property. The Art-
hasastra mentions guilds as great military powers. It further stresses that
the acquisition of the help of corporations was better than the acquisition of
the army, a friend or profit. The guilds also proved to be the centres not
only for the development of crafts and industries, but also for the dissemi-
nation of liberal culture.
Another notable feature of these guilds was that of their democratic
character. Though the guilds were administered by executive officers, the
voice of the individual member was equally honoured. Brihaspati speaks of
a house or assembly where the members of the guild met together at regular
intervals. Narada prescribes rules for attendance of members. Kautilya says.
‘‘He who suppresses what is right, who does not give scope to the speaker
or who says something improper is to be punished.’’ Mitramisra mentions
how the general assembly of the guilds determined the recruitment of its
new members and the exclusion of the old ones. Thus the democratic char-
acter of the guilds was established beyond doubt or dispute.
A noteworthy feature of the guilds was the sound relationship it had
with the state. The nature of relationship between the guilds and the state
may be better put as that of reciprocity. Manu says that the breach of contract
by any member of the guild, out of avarice, must be penalised by banishment
from the real one. Kautilya lays down the rules for the regulation and conduct
of the members of the guilds and their chiefs thus: ‘‘The chief of corporations
should endear himself to all people by service and by pursuing that course
of action which is liked by all those who are his followers.’’ Kautilya realises
the wealth and importance of the guilds. He reserves separate quarters in an
ideal planning of a town. He even advises the king to plunder their property
if the interests of the state require it. The heads of the guilds were on the
king’s pay-roll and their services were utilised secretly to create disaffection
in the enemy’s kingdom.
We may also take note of the principles which prevailed between the
partners of the guilds. Though there is no specific information about part-
nership deals in our records, it is possible that the partners had a very good
relation between them. Those who broke the contracts were punished.
VI) ECONOMIC STRUCTURE IN ANCIENT INDIA 155

The guilds also contributed much for religious causes of all kinds. The
Mandasor inscription commemorates the building and subsequent repair by
the guild of a splendid temple of the Sun.”° They accepted deposit from the
public to maintain a perpetual lamp in a temple or to carry out such other
work desired by the depositor. It is however true that in carrying out their
part of the agreement, the guilds were profited from the transactions.
Guilds played a significant part in the promotion of trade and it was
due to their untiring efforts, commerce, in the modern sense, became
possible. Their position was one of high social standing and high responsi-
bility. They worked with the district magistrate and ran the administration
of the region. ‘Just as village panchayats preserved self-government in their
villages, the guilds preserved self-government in trade’.

8. Trade and Finance

The use of the metallic money, mainly of silver, from the fifth century
B.C. onwards facilitated trade and helped the emergence of traders and mer-
chants. It is said that during this period money economy had become so
important that even the price of a dead mouse was stated in terms of money.
Coins of the earlier period, before fifth century B.C. are not known. The
Vedic literature suggest the use of coins, but actual coins are not found. In
fact the brahmanical ideology did not favour the use of money. In Mahab-
harata and Ramayana we have also references to the use of metallic money.
Three hundred hoards of punchmarked coins, mostly of silver, are
known and they bear no inscriptions. Inscribed coins began to be regularly
minted in India from the second century B.C. onwards. Most of the coins
are either of silver or bronze. The Satavahana coins were made of lead and
various alloys. Gold coins of the earlier period are few and far between.
The oldest surving coins, leaving out the one punchamarked coin (minted
before the beginning of the Christian era), are those of Vima Kadphises
(first century A.D.). Samudragupta and Chandragupta II issued different
types of gold coins.
The concept of legal tender was unknown and there are instances of
coins being circulated beyond the territorial limits of those who minted them.
Similarly, the ‘highly organised financial machinery of cheques, drafts and
letters of credit’ did not exist. There was no money-lending in Vedic society
in the absence of money and the idea of interest does not appear clearly. A
brahmana who lent money on interest was severely denounced.”! The Budd-

20. A.L. Basham, op. cit., pp. 204-5.

156 HISTORY FOR LAW STUDENTS [CHAP.

hist teachings recognised the reality and they do not condemn money-lend-
ing. The Buddhist texts show that loans were taken for setting up business.
The Buddha advised the holder to repay his debt along with the interest.
Buddhism and Jainism barred admission of a debtor to the Sangha. The just
rate of interest was fifteen per cent per year and in practice it was much
higher. The law-givers like Manu prescribe a sliding scale of interest for
unsecured loans depending upon the class to which a debtor belonged;
brahmanas 24 per cent, kshatriyas 36 per cent, vaisyas 48 per cent, and
sudras 60 per cent per year.” Manu speaks of securing loans on promissory
notes to be renewed every year. The law protected the debtors by disallowing
compound interest, interest above customary rate, interest equal to the
amount of the principal, personal service in lieu of interest and exorbitant
interest agreed to under coercion.”? The Arthasastra and other legal texts
lay down that interest payments should cease when the total interest paid
equals the principal, loans advanced by the creditor for his own profit should
be free of interest and the debts of the wives shall be paid by the husbands,
but not wives for those of their husbands.7* Some of these regulations were
set aside by later law-givers. They also provide escape clauses for many of
these regulations.
The attitude of the Dharmasutras towards trade was not helpful. Ac-
cording to earliest law-books agriculture, cattle-rearing and trade were the
occupation of the vaisyas, but the first two occupations were assigned to the
sudras by Kautilya. And then onwards money-lending on interest and trade
became the sole occupation of the vaisyas. In times of distress, the
brahmanas were permitted to adopt the occupation of the vaisyas, but trading
men, liquids, perfumes, cloth, leather, foodgrains, meat and so forth were
not permitted. The brahmanical society looked down upon those who con-
travened the law. Baudhayana condemns sea voyage as a sinful practice
while the Buddhist texts approve sea voyage.
Trade took upon itself the responsibility of distributing the surplus. A
network of roads connected north with south, and east with western India.
The merchant-caravans (sarthavaha) carried on internal trade. The caravan
provided itself with provision and other necessities of life. It had a vanguard
which cleared the roads. The Mauryan kings did much to safeguard the
roads, but the dangers that beset caravans from robbers is attested by many
stories. The merchants travelling with a caravan appointed one of themselves

21. R.S. Sharma, op. cit., 165.

22. A.L. Basham, op. cit., 221.
23. Age of Imperial Unity, p. 601.
24. A.L. Basham, op. cit., p 222.
Vi) ECONOMIC STRUCTURE IN ANCIENT INDIA 157

as a leader. Partnership by agreement was entered by two or more than two

merchants. They agreed among themselves about the distribution of profits
and losses.
The articles of internal trade included the luxury items like spices, san-
dal-wood, gold, gems, silks, muslins, musk and saffron; essential metal for
agriculture, iron and copper; and an absolute common necessity, salt. Sugar,
rice and other cereals, cotton textiles, lead and tin also formed the objects
of trade. Internal trade was entirely in the hands of Indian merchants.

9. Maritime Trade
The Vedic Aryans were well acquainted with the sea. From the Pali
texts of about the fifth century B.C. important information about seafaring
is available. Among the seafarers ‘besides the merchant community were
included monks, pilgrims, pedlars, horse traders, acrobats and actors, stu-
dents and tourists’. It was during this period first contacts were made with
Burma, Malaya and the islands of Indonesia. Martime trade became vigorous
in the early centuries of the Christian era. Trade with the West increased,
where the Roman Empire demanded the luxuries of the East in great quan-
tities. South Indian forests grew the chief articles which were in great de-
mand in the Western markets such as pepper, perfume, spices and betel; its
elephants supplied large quantity of ivory; in its mines were available
precious stones like beryl, gem, diamond, ruby and amethyst; and its sea,
pearl. The other far-famed commodities of South India were muslin fabrics,
silk and textiles.
The Periplus of the Erythrean Sea, a work by an unknown writer of
an uncertain date, gives important information with regard to trade between
South India and the Roman Empire. He mentions some twenty-two major
ports between the mouth of the Indus and Kanya-Kumari. Among some
leading sea ports of the west coast mention may be made of Naura (Can-
nanore), Tyndis (Ponnai), Neleyanda (near Kottayam), Musiris (Musuri,
Cranganore), Barre (Porkad), Baryyagaza (Broach), Sonpara (Sopara), and
Kalliena (Kalyana). Puhar or Kaveripattanam was also one of the main ports.
The Periplus gives the following description on the nature of the trade be-
tween Rome and South India:
‘*They send large ships to these market towns on account of the great
quantity and bulk of pepper, and malabathrum to be had here. They are
imported here, in the first place, a great quantity of coins, topas, thin cloth
not much, figured lines, antimony, coral, crude glass, copper, tin, lead, wine,
not much but as much as Baryyagaza, and wheat, enough for the sailors,
158 HISTORY FOR LAW STUDENTS [{CHAP.

for this is not dealt in by the merchants there. There is exported pepper,
which is produced in quantity in only the region near these markets, a district
called Cottanara. Besides this, there are exported large quantities of fine
pearls, ivory, silk cloth, spikenard from the Ganges, malabathrum from the
places in the interior, transparent stones of all kinds, diamonds and sapphires,
and tortoises shell, that from Chryse Island that taken among the islands
along the coast of Damirica.’’”°
This trade between the two countries increased greatly in about the
fourth century A.D. This has been attested by the existence of as many as
forty ports referred to by Ptolemy.
This prosperous trade resulted in draining Rome of its gold. The Roman
economists bitterly complained against this adverse balance of trade and
clamoured for cutting imports from India. Pliny was particularly bitter on
the Roman ladies whose love of Indian pearls caused a great drain on Roman
currency. He says, “‘Our ladies glory in having pearls suspended from their
fingers, two. or more of them dangling from their ears, delighted even with
the rattling of pearls as they knock against each other... more than this they
put them on their feet and that not only on the laces of their sandals but all
over their shoes; it is not enough to wear pearls, but they must tread upon
them and walk with them under their feet as well.’’ Further he says, ‘‘In
no year does India drain us of less than 550,000,000 sesterces (£ 22,000,000)
giving back her own wares which are sold among us at fully hundred times
their first cost... . This is the price we pay for our luxuries and our women.”’
It is said that ‘Roman ladies decked in seven-folds of muslin paraded the
streets of Rome and became a menace to its morals’.
The consumption of huge quantities of spices at funerals had become
the order of the day. We are told in the days of Sulla as many as 210 talents’
weight of spices were used at his obsequies. At the funeral of Pappoea, in
66 A.D. Nero burnt more aromatics on her pyre than Arabia produced in a
year so as to provide her with a countless arry of protecting spirits in the
other world.
In addition to trade relations, there were diplomatic relations between
the two countries. At the time of the coronation of Augustus Caesar, the
Pandyan king sent an embassy to Rome. The Pandyan rulers employed
Roman mercenaries as their bodyguards. Tamil works speak of these as
‘dumb mlechchas’ as they could not speak Tamil. The excavations at Ari-
kamedu on the east coast, Kolhapur on the west coast and Chandravalli and

25. K.A.N. Sastri, A History of South India, p. 135.

VI) BCONOMIC STRUCTURE IN ANCIENT INDIA 159

other places in the Deccan and in the delta of the Mekong river in Indo-China
have yielded to the spade Greco-Roman coins and shreds of red glazed ‘arren-
tine’ pottery of early first century A.D. showing South India had a long estab-
lished trade with the Western countries. The other finds during the excavations
in the delta of Mekong river (1944) included relics of the cults of Siva, Visnu,
Surya, innumerable beads of semi-precious stones, cameos of carnolian, crystal
or jasper, some with brief Brahmi inscriptions of the second to fifth centuries
A.D., fragments of bronze figurines in the Amaravati and Gandhara Buddhist
styles, gold jewellery and a wide range of terracotta ornaments.
These evidences show that there was continuous and healthy cultural as
well as commercial intercourse between South India and the Roman World, in
the early centuries of the Christian era, which, from there, spread to Far East.
These political, cultural and commercial contacts played a significant part in
bringing about an international understanding between the two countries.
It is interesting to note that during their flourishing commercial inter-
course the Roman and the Indian merchants seldom met. The intermediaries
in their trade were the Alexandrian Greeks, Syrian Jews, Armenians, Arabs,
Axumites and the Parthians controlling the Somaliland and the land route
leading to the east.
By the third decade of the sixth century an inter-oceanic trade connect-
ing Eastern and Southern Asia came to be developed. The merchandise
reaching from China passed through Indonesia and the east coast of India
up to Sri Lanka. From Sri Lanka they passed along the western coast of
India to Persia and the Homerite country (in Arabia) and Adule (the port of
Assum, capital of the Ethiopian kingdom). Cosmos informs us that merc-
handise from China and Indonesia and South India was carried to Sri Lanka
and from there it was exported to the countries just mentioned. India had a
fair share in this trade. India exported to China the same commodities as
the Western countries like spices, spikenard, pepper, cinnamon, costus, car-
damom, aromatics, fragrant trees, sandal wood, saffron, cloves and aloes,
pearls and textiles. They imported from China porcelain and other Chinese
stuffs. Indian trade had great importance to the Arabs. When Caliph Umar
enquired from a merchant about India, the latter replied, “‘Its rivers are
pearls, mountains are rubies and trees are perfumes.’’ India exported rhi-
noceros horn to China. There they made very costly caskets out of the horn.
India exported arecanuts to Arabia and muslin calicos to Egypt.
By the end of the seventh century Indian maritime began to decline as
the Arabs established control over the shipping in the Persian Gulf. During
the eighth and ninth centuries this Arab influence was confined to Sind,
160 HISTORY FOR LAW. STUDENTS [CHAP.

Gujarat and the Konkan sea coast only. The eastern sea coast was safe from
their attacks. From here the Indian caravan leaders sailed their ships to the
Eastern Archipelago and as far as China. This route was used by the Cholas
to export pearls, ivory, coral, transparent glass, cardamoms, opaque glass,
cotton stuff with coloured silk borders and simple cotton stuffs. “Though
maritime trade never ceased it became more and more the affair of the
foreign merchants’, who appropriated the profits of the lucrative Indian com-
merce. Indians did not completely give up sea in spite of the religious ob-
jection to sea travel. With the Muslim invasion of India, Indians developed
distaste for sea and preferred to sell their wares to foreign middlemen than
to directly trade with the outside world. ‘“‘The Muslim invasions encouraged
xenophobia, and the people who had planted their colonies from Socotra to
Borneo became, with religious sanction, a nation of land-lubbers’’.!26
India, as other nations of the world, began with a pastoral economy. In
the course of their migrating habits, they realised the importance of agricul-
ture and took to sedentary life in the later Vedic period. The wooden plough
which they were using for cultivation rendered agriculture unremunerative
as it did not leave any meaningful surplus. In a subsistence economy devel-
opment of economy on any scale was not possible. The use of iron plough-
share and iron agricultural implements in the age of the Buddha led to a
kind of agricultural revolution. Forests were cleared and more and more
virgin soil brought under the plough. The resultant large surplus prepared
the ground for urbanisation which, in turn, gave a tremendous impetus to
trade.
The necessary climate was created in the pre-Mauryan period for the
tremendous growth of trade. A large number of arts and crafts and occupa-
tions are mentioned in the literature of the period. The Jatakas mention
eighteen important handicrafts. The mining industry had grown very import-
ant. Megasthenes states that in the Mauryan period gold, silver, copper and
iron were extracted in large quantities and articles of utility, ornaments and
weapons of warfare were made of them. A high level was reached in the
production of spices, aromatics, ivory, precious gems and pearls. Textile
industry made rapid progress and the Indian muslin was highly praised. The
Arab traveller, Suleiman, informs us that South India produced such a high
quality muslin that the length of cloth required for Sirband (turban) could
be passed through the signet ring. The introduction of metallic money fa-
cilitated trade. India traded with the Western, Middle-Eastern and South-East
Asian countries. The demand for luxuries and lesser luxuries such as sugar,

26. A.L. Basham, op. cit., p. 231.

Vi} ECONOMIC STRUCTURE IN ANCIENT INDIA 16]

rice and ghee were great in the Roman world. Rome also imported from
India animals and birds such as elephants, lions, tigers, buffaloes, monkeys,
parrots, peacocks and golden pheasant.”’ The balance of trade was in India’s
favour and Rome paid dearly for their luxuries and for their women. The
large finds of Roman coins in India attested to this commercial intercourse.
There was also regular commercial intercourse, both by land and sea with
China. This was, however, not a one-way traffic. There was exchange of
products between the two countries.
The Indian merchant communities who ‘were rich in organising skill,
truthful, the treasure house of courage, ready to grapple with fresh problems,
replete with common sense, liberal’ sailed with their ships, loaded with com-
modities, to distant shores. In the seventh century they faced stiff competition
from the Arabs. In the middle of the same century they waged war against
Broach and Thana with the object of controlling fully the shipping extending
from the Red Sea to South China, and Indian shipping began to decline.
The Arabs now became the intermediaries in India’s maritime trade. Though
there was no decrease in the ‘volume of India’s export trade, in fact it was
on the increase, the beneficiaries were not Indian merchants, but the Arabs.

27. A.L. Basham, op. cit., p. 229.

 Chapter VII

Legal System of Ancient India

ith passage of time, when the process of the formation of society
and state was complete, people began to feel the necessity of an
organised justice administered by the state so that public peace was not
disturbed. Public peace could be maintained only when there was no
violation of the rules and customs of different castes, communities,
families and localities, and many activities of social and religious nature
are pursued without let or hindrance. Ancient Indian society was not
static, but dynamic and the changing needs of the society had to be
recognised first, followed by modification of the regulations to suit the
changing needs of the society and then enforced. There was a felt need
for treatise on jurisprudence and this was met by a large body of legal
literature which kept in view the societal structure of the different
periods. Indeed, legal literature could be regarded as the result of a
systematic development, aimed at solying real and earnest problems of
social, economic and judicial natur _In ancient India, the Scope of law
See ge

pheans:“lifé. which Tie beyond - the jt

jurisdiction ‘of modern law-court)
How our ancestors comprehended the complex problems of the society
and prescribed rules for regulating human conduct are best revealed in
this body of legal literature. To this source we owe our knowledge of the
evolution of Hindu Law.
After the Vedic age probably the sacrificial instructions of the
Brahmanas became obscure necessitating the composition of a
new group of texts to elucidate them. This special class of literature
is designated as the Sutras. The term sutra originally meant a
‘thread’, but was used with the secondary meaning of a manual of
instructions on many subjects, written in short sentences, running
through a topic, like a thread. A sutra is ‘a short rule, in as few
words as possible, giving a clue to the learning, stored in a particular
topic, forming a part of a particular book. Both by their form and
object, the Sutras form a class by themselves”.! During those days,
instructions were given orally and this enabled summarising the entire ex-

1. The Vedic Age, p. 472.

[ 162]
 LEGAL SYSTEM OF ANCIENT INDIA 163

position thereby rendering its easy memorising. The intricacies of the Vedic
ritual had to be scrupulously observed in every small detail and this occa-
sioned the development of this form of literature. It is known as the Sutra
style and ‘the definition of a Sutra clearly says that a Sutra should be brief
in form but at the same time unambiguous in its meaning’.
The Kalpa Sutras are the oldest Sutra works. It divides itself into three
classes, the Srauta Sutras, the Grihya Sutras and the Dharma Sutras. The
Srauta Sutras are so called because they are based on sruti (heard), the
Vedas. They deal with Vedic sacrifices and are important ‘for the under-
standing of the cult of the sacrifice’ as well as ‘for the study of the history
of religion’. The Grihya Sutras deal with domestic religious ceremonies of
samskaras. Estimating the relative importance of the Grihya and Srauta
ceremonies Max Muller says, as ‘‘...though the latter (i.e. Sruatra ) may
seem of greater importance to the Brahmanas, to us the former will be more
deeply interesting, as disclosing that deep-rooted tendency in the heart of
man to bring the chief events of human life in connection with a higher
power, and to give to our joys and sufferings a deeper significance and a
religious sanctification.’’* The Srauta and Grihya Sutras lay greater em-
phasis on the idea of social welfare and prescribe elaborate rules for the
governing of the society in regard to religion, domestic duties and mutual
relations between different members of the society.
The third class of text-books are the Dharma Sutras, the manuals of
human conduct. The difference between the Dharma and Grihya Sutras is
that “‘the weight in the Dharmas is laid on the wider relation of man to the
state, so that those sections which deal with the family become condensed
and subordinate’’.* They deal at length with the duties of varnas and as-
ramas, the social usages, customs and practices of everyday life. The be-
ginnings of civil and criminal laws have to be assigned to this period. Under
the civil law they have included such topics as taxes, inheritance and the
position of women, while the topics under criminal law include assaults,
adultery, thefts, etc. But all were not equal in the eyes of law. The rules of
punishments were based _o ions and w
fence committ a sudra invited capital punishment, for the same offence
a brahmana went scot free. At best, he washed off his sins by performing
penance. The authors of the Dharma Sutras are not of one mind and there
are noticeable differences anfong them both in respect of the idea of crime
and punishment. These differences. ‘are.due...partly to differences in their
2. History of Ancient Sanskrit Literature, (second edition) p. 205.
3. Hopkins, Cambridge History of India, Vol. |., p. 229.
164 HISTORY FOR LAW STUDENTS [CHAP.

age and locality of origin, and partly also to the various schools in which
these texts were studied’.
The Dharma Sutras are our earliest sources for Hindu Law, the most
important being those attributed to Gautama, Baudhayana, Vasista and
Apastamba. The Gautama Dharma Sutra which is the oldest is assigned
to the sixth century and the remaining three are placed between the sixth
and fourth centuries B.C. In some respects, they look back to earlier times,
while they also contain later interpolations.
Later, from the e CS ies of the Christian era onwards, the prose
Dharma Sutra texts were reworked in verse form and came to be called
Dharma. Sastras or instructions in the Sacred Law. The difference between
‘the two is one of style, although the Dharma Sastras are distinguished by
a greater concentration on law. They are also called smritis (remembered),
and have played a notable part in moulding the life ofthe Hindus. Although
the Vedas are regarded as ‘the ultimate sources of Dharma, in practice it is
the Dharma Sastras to which Hindus all over India turn for the real expo-
sition of religious duties and usages. Indeed, these codes es expand and syste-
matise the socio-religious regulations of orthodox. brahmanical. culture. They
pontine he

are also accepted as : the only authentic guides to law, custom and duty. They
—-
were | d to be divine origin.
With the passage of time, it came to be realised that the Vedic hymns
are not only difficult to comprehend but also to relate to current practice.
They were found to be inadequate for the regulation of large segments of
social life that had become complex. The regulations of the Codes found
ready acceptance and were soon absorbed into the tradition. The Codists
acquired as exalted a status as the Vedic poet sages and the ordinances
attained a stature comparable to the Vedas. ‘‘Soon it came to be believed
that knowledge, to be complete, must include the study of the Codes, or
alternatively, that the support of the Veda was not essential for the authori-
tative statements in certain areas of conduct. Ultimately, in cases of conflict
the smriti came to represent an authority superior to that of the tradition,
though the Vedas were not discarded altogether’.
The jurisdiction of the Dharma Sastra comprised the whole life. In
course of time, numerous smritis came to be composed, the earliest of which
is that of Manu, probably composed in its final form in the
second or third
century er important smritis after Manu are those of Brihaspati,
Yajnavatkya, Visnu, Narada and Katyayana, whichh date from the Gupta
period. There are many others of lesser importance orr preserved iin fragmen-
tary forms. As the regulations of the Codes had to be adopted to social
VII) LEGAL SYSTEM OF ANCIENT INDIA 165

needs, a commentary on the law codes was seized upon as a ready and
simple guide to sacred law and custom. So much so, the authority of the
commentary at times rivalled those of the Codes themselves. The commen-
taries or digests played a significant role in the evolution of Hindu Law.
The Dharma Sastras combine the practical with the ethical. They deal
with many topics like Varnas, asramas, their privileges, obligations and
responsibilities; dharma of Kshatriyas and kings, judicial procedure, and the
sphere of substantive law such as crimes and punishments, contracts, parti-
tion and inheritance, adoption, gambling, etc. The teaching of the Dharma
Sastra shows that there are proximate ends or motives and ultimate ends or
motives and that the ultimate ends are really most valuable. This indicates
that all higher life demands discipline both of body and mind and requires
the subjugation of the lower aims to aims of higher value.* All smritikaras
attached the highest importance to moral qualities and enjoined them upon
all with all the emphasis they could command, but their main purpose was
a practical one, viz., to guide people to right acts in everyday life; th It
more elaborately..with.the acts, rites and ceremonies that each person has
to
do with reference to his station in society. They are therefore found princi-
pally concerning. themselves v
with
Ame tanLei O TE and_not.with=sad-
harana dharma or duties common .to_all alike,> It is, however, difficult to
sayhow closely, the. smritis.reflectthe. actual laws,and rules
of t
the> society.
But there is no doubt that they were accepted as.authoritative in
in the admin-
istration of justice and the prescription of duty.
_ The authors. of riti literature were brahmanas and naturally the
represent their point ofview. The Arthasastra a
and differs from smritis in many particulars. The outlook of the dharma-
sastrakaras was semi-religious and semi-moral and they considered the gov-
ernment and political process in the light of the Vedic canons. The
Arthasastra deals with these subjects objectively in a secular framework.
‘‘Dharma Sastra is of an essentially deductive nature; Arthasastra, by con-
trast, introduced inductive reasoning and a greater realism. But the allegation
that Arthasastra differs from Dharma Sastras in that it is not dependent
on the Vedas for validation must be rejected. To be sure, the authors of the
Arthasastra enjoy a relative intellectual freedom, and their contribution lies
in the separation of political speculation from theology. But this need not
and should not be taken to imply a repudiation. of orthodoxy’’. The Dharma

4. Charles Drekmeir, Kingship and Community in Early India, p. 189.

5. Ibid, p. 190.
 166 HISTORY FOR LAW STUDENTS [CHAP.

Sastra, true to its nature, lays the greatest emphasis on dharma, while the
Arthasastra on artha. The Arthasastras do place a high value on dharma,
but their chief concern was the treatment of central and local governments,
taxation, the employment of sama and other upayas, with alliances and
wars, appointment of officers, punishment and so forth. Arthasastra school
aimed to wean away men from the thought of asceticism to problems of
social life. ‘In the argument idealism tends to be subordinated to a philosophy
of power politics and materialism’. Viewed aright, Arthasastra is mainly
what is called Drishtartha Smriti (the effects of which are worldly and
visible as opposed to other worldly and invisible, the main thrust of the
Dharma Sastra). It is said ‘‘that the advice of the tL
followed in many ancient Ins | ough it became increasin ly authori-
tative with time’’.© The Dharma Sastra,acquired.a_tr importance
Mantra became_a_watchword
it with many. kings inancient India
ee oe

to ‘follow thepath of Manu’. The. Dhgrma_ Sastras.set before. themselves

way in preventing the
thetigh standards, goal.and ideal which went a.long
disintegration of the society. ., a PPIs
sibs an ibis SA SSS
AN aot Raa y my, vWIAL, . Se a
1
2. Role of the Smritikaras + :
The smritikaras generally deal only with a few salient features of
rajasastra. They were particularly interested formu ting a_system of
or the welfare of the society as a whole. Through the institution of
arnasrama they aimed at working out the idea of social good and ‘social
“Solidary. ‘‘Varnasrama dharma had two-fold aims, one was to maintain
harmony and peace in the society which is a condition precedent to the
attainment of the ultimate end. The other purpose of it was to discipline the
individuals according to their capacities in order to prepare them to follow
their cherished pursuits in life’’.’ They had a low estimation of human nature.
They were of the view that ordinarily men weredepraved,
that itwas difficult
to find a man pure by nature and that men were kept in the right path by
the fear of punishment. It was, therefore, the Of the state “to repress
by the threat andthe use offorce any violations of rights of personal =o
~and property, toenforce thepracticeofpeople’s owntraditional customs
and usages and to take serious care of virtues and dharma’. The smritikaras
like Manu, Brihaspati, Yajnavalkya, Narada and Katyayana have played a
significant role in formulating rules for the governing of social and religious
life of the people which were accepted as authoritative in the administration
of justice and the prescription of duty.

6. A.L. Basham, op. cit, p. 113. |

7. S.D. Sharma, Administration of Justice in Ancient India, pp. 41-42.
 VII] LEGAL SYSTEM OF ANCIENT INDIA 167

Manu:
Indubitably Manu is one of the most outstanding figures in the history
of the law-givers of antiquity. He has carved for himself a deep niche in
Indian history. It ‘‘was he who gave the stamp of sanctity and performance
to the socio-political institutions of the land, and has left to the Indian world
the first Code of Civil and Criminal Law’’.’ Manusmriti marks the summit
of the socio-political advancement in ancient India. It was more universal
and satisfied the needs and aspirations of an everlastic social fabric. What
is more, the Code of Manu continued to regulate the conduct and nature of
Indian society even after his age.
Manu represented the earliest of the Dharma Sastra schools. The ident-
ification of Manu, the law-giver, is beset with certain difficulties. There are
as many as three Manus living in three different periods. The earliest of
these is the Manu of the Great Deluge. He was followed by Manu Vaiva-
savata, the first King of men, and then Manu, the law-giver, who is widely
known by his Code, which is generally considered as the most authoritative
work on Hindu Law. In the absence of definite evidence, it is difficult to
determine the dates of these Manus. It can be safely said that considerable
time must have lapsed between each of them.
The Code of Manu is a metrical law book consisting of 2685 verses. It
deals with the ‘Institutes of Sacred Law’ which he explained to the sages
of old, who desired to acquire a complete knowledge of the sacred law.
Manu is said to have abridged and promulgated the Dandaniti, a colossal
treatise composed by Brahma, the Creator, dealing with life, morals and
government. It is this sacred tradition that is represented in the ordinance
known to us as the Manusmriti.
r~ Manu devotes three chapters (vii-ix) to discuss such topics as king and
_ the state, their origin and nature, the duties of the king, ministers and other east
nme
erer
<

state functionaries; the judiciary, sources of law, classification of law, pun-

ishments, the role of the judges; principles of taxation, war and diplomacy
and the ethical principles of warfare. The rest of the work is devoted to deal
more comprehensively such moral problems as penance and expiation and
—_ purely religious topics like the transmigration of the soul and final beatitude.
He held that dharma was the supreme power in the state and the king was
merely an instrument to realise the goal of dharma. The state was not an
end in itself but only a means to an end, a means to enable people to attain
the four purusharthas viz., dharma, artha, kama and moksa, satiate,
8. B.A. Saletore, op. cit., p. 151.
168 HISTORY FOR LAW STUDENTS [CHAP.

the first three, as the last could be attained only by a few. A regular classi-
fication of law under eighteen titles appears for the first time in Manusmriti.
In respect of criminal law caste privileges and disabilities are discussed in
a careful manner. What is more is the emphasis on the law of relation. Manu
thought punishment both retributive and deterrent. There is great insistence
on justice and equity. ‘‘Its stresson the coordinated partnership of all classes
of people, its emphasis on free development of all those social forces for
the stabilisation of religion and the state, and above all, its attempts to aug-
ment and enrich Hindu civilisation, marks out Manusmriti as most predomi-
nant among the Dharma Sastras.”’

pte
Brihaspati is closer to Manu and his ‘work has been proved to be a
vattika on the Manusmriti’. He assigns a premier place to the Code of Manu,
yet he explains, amplifies and does not hesitate to modify its rules on various
topics wherever found necessary. Brihaspathi, Yajnavalkya, Narada and Ka-
tyayana represent the last stage of legal development. Indeed, they are the
last of the original law-givers of ancient India.”
Tracing the origins of the judicial proceedings Brihaspati states: “‘In
former ages men were strictly virtuous and devoid of ‘mischievous propen-
sities. Now that avarice and malice have taken possession of them, judicial
proceedings have been established.’’ He adds to Narada’s list of nine ‘mem-_
bers’ of court of justice the officer of the king and makes it ten. Similarly,
in place of Narada’s ‘righteous officer’ he puts the authorised person (ad-
hikrita) or the chief
(adhyakoa).
judge He explains for the first time the
= = ce RRO , ‘‘that the king inflicts punishment,
the adhyaksha. pronounces _the sentence, the sabhyas investigate the case,
the accountant omens the sum in dispute, the ‘sctibe records the proceed-
ings, the king’s officer compels the attendance of the plaintiff, witnesses
and sabhyas, the Smriti decides the judgment, gold and fire are required
uired for
administering oaths and (quaintly enough) water is required for quenching
thirst’’.'° Whatever one may think of the above explanation, the judicial
procedure to be followed becomes evident from it. The king inflicted pun-
ishment based on the decision of the judge and the scscasors The Homeal
strength of the s as is put at seven, five or three. Elsewhere, without
and the
tig clearly ‘the ens, Brihaspati adds ministers.(qmatyas)
purohita to the list of members of the court.
9. Sukla Das, Crime and Punishment in Ancient India, p. 7.
10. The Age of Imperial unity, p. 353.
Vil) LEGAL SYSTEM OF ANCIENT INDIA 169

Brihaspati speaks of four courts though in actual enumeration seven

courts are mentioned. The four types of courts are stationary or fixed (prat-
isthita), courts which sat in a town or village, ambulent or moving (aprat-
isthita) which had no fixed seat, one furnished with the king’s signet ring
superintended by the chief judge (Mudrita) and the fourth directed by the
king himself (sasita). The three other courts included the one for foresters
to be held in the forest, the court for soldiers to be held in the camp and
the court for the caravan merchants. Of the first four courts, the third and
the fourth types have their counterparts in other Dharma sastras, but the
first two have no precise parallel elsewhere. Brihaspati warns a king not to
meddle with the disputes of ascetics and of persons versed in sorcery and
witchcraft which should be settled by persons familiar with the three Vedas.
Finally, he introduces five grades of courts. He states that Kula, Sreni and
Gana and other persons duly authorised by the king should decide law-suits
except cases of violent crimes. He further adds the authorised person and
the king were the resorts of passing of sentence to whom he whose cause
had been previously tried might appeal in succession. If a cause had not
been duly investigated by Kula it could be decided by Sreni, if it had not
been examined by Sreni it could be decided by Gana and finally by the
royal judges."!
**In_ the richness and complexity of his rules of judicial procedure, Bri-
haspati
laspati surpasses Manu and Yajnavalkya, andapproaches the» level of Narada
and Katy
Katyayana. **12 He is one with Narada when.he speaks of the fourm
modes
Me aie

ee ee

rajajna. Unlike Narada, Brihaspati_ gives two ra aren of thisdictum. By

vyavahara he means a decision based on sastra alone and takes charitra
as a decision given in accordance with local usage, with inference and with
the opinions of merchants. Both Narada and Brihaspati declare rajajna to
be the final authority in legal decision. Elsewhere he classes the four modes
of decision under two categories. (De cision by dharma, according to him,
takes place when the matter in dispute has been decided after due deliber-
ation, according to equity and after tendering oaths. Again, it arises when
the defendant admits the claim (or change), or else his innocence is proved
by means of ordeals. When the judgment was passed after examination of
the evidence and, again, when the defendant told a lie or made no answer,
it is known as decision by Vyavahara. When the judgment was based upon
inference and, again, when it was passed according to usage, it is known as

11. Sukla Das, op. cit., pp. 106-7.

12. The Age of Imperial Unity, p. 354.
 170 HISTORY FOR LAW STUDENTS [CHAP.

judgment by charitra. Finally, judgment by the king’s edict takes place when
the evidence is equally balanced and, again when the law-books and the sabhyas
are at variance’’.!? Brihaspati is here speaking merely of different methods of
deciding a suit by equity, Jby oaths, by confession of the accused, by proof, by
inference and by rajajna. He gives two explanations again regarding the com-
position of vyavahara. It is said to consist of purvapaksha (plaint), uttara
(answer), kriya (adducing of proof), and nirnaya (judgment). Elsewhere he
speaks of bhasha (declaration), uttara (answer), kriya (adducing proof) and
pratyakalita (deliberation as to burden of proof) constituting vyavahara.'*
Brihaspati’s concern for even-handed justice becomes evident when he
amplifies rules relating to different classes of evidence and describes the
characteristics of each one of them for the first time. He speaks of twelve
kinds of witnesses. These include ‘A subscribing witness’ or “one who enters
in a deed his own as well as his father’s caste, name, etc., and his place of
residence’; lekhita or a witness caused to be written ‘is one whose name
has been entered in the deed together with the details of the agreement by
the plaintiff when writing the contract’. ‘A secret witness’ is one who hears
the speeches of the debtor without his knowledge and relates exactly in the
manner they were spoken; a family witness is one who is chosen by both
the parties to witness a deed of partition, gift or sale; a messenger, a re-
spectable person taken by both the parties to listen to their discussion or
transaction; a spontaneous witness or the one who volunteers to declare what
NLT
Rt
AE
NR

he has witnessed in a transaction under trial; an indirect witness or the one

who relates ‘from hearsay previous statements of actual onlookers’.'> The
king is advised to oversee the contradictions, if any, in the evidence tendered
by the witnesses. The chief judge and the assessors did similarly in case of
fresh trial after the suit is decided. In case of damage caused to boundaries,
the villagers were to give evidence. Brihaspati permits peasants, artisans,
hired labourers, herdsmen, hunters, gleaners, diggers of roots as also fisher-
men, to act as witnesses in respect of boundary disputes concerning the
houses and fields. Certainly, this was a unique development and shows the
growing importance of the artisans and peasants’ class on whose mentors
rested the economic edifice of the society.
Generally, respectable, honoured, pious and reliable persons of the same

|
caste as the accused, when possible, were preferred for evidence. According
to Brihaspati the relatives of various degrees of the accused, persons morally
.
: 13. The Age of Imperial Unity, pp. 354-55.
\—" 14. Ibid, p. 355.
15. Ibid, p. 355.
VII) LEGAL SYSTEM OF ANCIENT INDIA 171

wrecked, men of bad reputation, bad conduct, thieves, robbers, gamblers,

Outcastes, intoxicated women, minor, lunatic, ascetic and so forth were in-
competent witnesses.
The minimum number of witnesses was three. But Brihaspati suggests
nine, seven, five, four three or even two witnesses were sufficient provided
they were learned brahmanas. He however, emphasises that a single witness
should never be entertained. Non-appearance and refusal to give evidence
was severely punished. According to Brihaspati, he had to repay the debt
and pay a fine after a lapse of a fortnight. He makes provision, again for
the first time, for the examination, cross-examination and re-examination of
witnesses. Brihaspati equates a false witness to a slayer of a brahman and
considers him a greater sinner than the killer of an embryo or a destroyer
of wealth.'© He says the inaccuracies in the witness or the document must
be exposed at the time of the trial and not later. Again, the burden of proving
objection to documents or witnesses rested with the concerned parties.)
Brihaspati is of the view that a plaint in which injury is very small or
the monetary value involved is negligible, should not be entertained by the
king. It it worthy of note here that this principle is embodied in Section 95
of the Indian Penal Code.
~)
aes as a means of proof had greater importance in legal matters. -
Zi

Bri divides documents into three groups — royal writing, writing :

made at a particular place and one written in one’s own hand. The royal
writing consisted of three classes — ‘royal edict’ recording king’s grant of
land and so forth, writing embodying the king’s favour, i.e. grant of prov-
inces, etc., by the king to his favourite, and jayapatra or document of victory
which contains the record of the whole proceedings of a trial and is sealed
with the royal seal. Similarly, he lists seven classes of private documents,
namely, deeds of partition, gift, purchase, mortgage, agreement, bondage
and debt/Bri aspati warns against the fabrication of documents and suggests
to ascertain the genuineness of the documents by giving wide publicity to
them and showing them to kulas, srenis and ganas. ‘*‘A document which
has neither been seen nor read out for thirty years, loses its validity although
the subscribing witnesses be still alive’’, says Brihaspati. He who has ac-
quired property was required to prove it by the written title, although, it was
sufficient for his son to establish it by the fact of possession alone. Title
and possession combined established proprietary right.

16. Brihaspatismriti, Vil, 21.

172 HISTORY FOR LAW STUDENTS [CHAP.

Ordeal was generally resorted to when a doubt arose with regard to a

document or statement of witnesses and when inference failed. Brihaspati
speaks of nine ordeals — of balance, of fire, of water, of poison, of sacred
libation, of rice grains, of heated piece of gold, of ploughshare and dharma.
Brihaspati makes an important landmark in the history of Hindu Law
by classifyine@"Manu’s eighteen titles of law under two broad heads, civil
and criminal law. Under civil law were listed such titles as money-lending,
deposits, invalid gifts, concerns of partnership, non-payment of wages, non-
performance of service, land disputes, sale without ownership, rescission of
sale and purchase, breach of contract, relation between husband and wife,
theft and inheritance, as well as gambling, which spring out of wealth.'’
The two kinds of insult, violence and criminal connection with another’s
wife which spring out of injury to others came under criminal law.
According to Brihaspati, it was necessary for the creditor to take a valid
pledge before lending money. He adds ‘hair interest’ (sikhavridhi) and “in-
terest of enjoyment’ (bhogalabha) to the list of four by Narada. The first
one is so called because the interest grows till the payment of the principle
like hair till it is cut off. Bhagalabha means the enjoyment of mortgaged.
As regards the law of partition and inheritancé, Brihaspati allows equal share
both to the father and the sons in the property of the grandfather, while a
son can claim a share in the property of his father with his (father’s) consent
only. Our law-giver does not favour a law suit between teacher and pupil,
father and son, husband and wife and master and servant as it was against
the accepted social norms. The judge had to persuade them not to contest
a suit. If they insisted then it was to be decided according to law.)
Brihaspati is forthright concerning the penal law. According to him if
the abused returns the abuse, one who is struck returns the blow, and one
who is attacked kills the assailant, he commits no offence. One who injures
had to meet the expenses of curing the wounds. The aggrieved party is
provided compensation for offences of this type. If more than one person is
involved in beating a man to death, the one who struck the fatal blow re-
ceived prescribed punishment while others received half of it. In prescribing
punishment for theft or violence Brihaspati is concerned more with the grav-
ity of the offence than with the caste of the offender.'® According to Bri-
haspati a decision should not be given merely relying on the text of the
sastras. When consideration of a matter is divorced from reason and com-

17. The Age of Imperial Unity, p. 358.

18. Ibid, p. 359.
Vil) LEGAL SYSTEM OF ANCIENT INDIA 173

monsense, loss of dharma (justice) results. A thief is held to be not a thief

and a good man\is held to be a wicked one in a judicial proceeding not
arrived at with proper reasoning. The sage Mandavya was held to be a thief
on account of the decision being arrived at without proper reasoning.!?

Yajnavalkya
CThe importance of Yajnavalkya lies in arranging the materials of the
Manusmriti in a more systematic and concise fashionst appears at the time
of Yajnavalkya the canonical smriti writings were less appropriate to the
needs of India than were the teachings of the Arthasastra school. This ex-
plains the influence of Kautilya in the Yajnavalkya. It is composed of three
books which contain rules relating to the three major categories of Indian
law; proper conduct (acara), expiation (prayaschitta) and criminal law
(vyavahara), Yajnavalkya borrows freely from earlier theories, reducing
their commentary to a compendium of legal thought.
Gage was the first to mention specifically three popular courts,
namely, kula, sreni and puga arranged in the ascending order of importance,
the kula being the lowest court for arbitration in small matters. With these
courts ‘wemay well compare the village, caste and family Papert: of
modern times”. ay
CY"Yajnavalkya describes systematically the process of judicial procedure.
He says there are four stages in a ‘law suit but does not mention them by
name. The law-giver favours writing down of the plaint apparently first when
he complains and again in the presence of the defendant when he appears
with particulars about the time and description of the defendant. Any serious
discrepancy between the complaint as originally lodged and the plaint as
recorded in the presence of the adversary may prove fatal to the caused
No counter-claim or counter-charge was allowed till the.plaint was dispose
of. However, in exceptional cases like that of delicts (kalaha) and violent
crimes (sahasa) counter-charge was allowed. Again_no complaint against
one who is already under a charge was entertained{ In serious offences in-
volving women the parties had to plead without loss of time. Otherwise, the
courts could allow time at their own discretion. At the beginning of suit the
parties were to give sureties.»
19. Sage Mandavya though not a thief was held to be a thief, because he, owing to his
vow of silence, did not reply, when questioned and near to whom was found the
booty and who was impleaded. Vide P.V. Kane, History of Dharmasastras, Vol. Ill,
S, Zao.
20. §.D. Sharma, op. cit., p. 201.
 174 HISTORY FOR LAW STUDENTS [CHAP.

According to Yajnavalkya evidence or mode of proof was three-fold-

documents, witnesses and possession. To, this, he adds ordeal. He considers
a document written by the executant himself as more authoritative except
when it was caused by force or nl document was expected to be
precise, detailed, authentic and signed by witnesses. But a document trans-
ferred into another country, or one soiled, ilt, mutilated, and contained
illegible>scripts was considered as invalid (pe trial was based mainly on
3a of witnesses. According to Yajnavalkya a witness should be

eminent in virtue, oe having sons and wealthy’ S forposseision.Nainn-

valkya was of the view that ‘title prevails over pOSsession unless the latter
be hereditary’. Elsewhere he says ‘title would be of no avail in the absence
of possession, even for a short time”. €ontinuing he observes, in case a
person having mortgaged a piece of“land to one person for a valuable con-
sideration, subsequently mortgages it to another for similar consideration,
the right will be with the first mortgagee, notwithstanding the possession of
the latter (but it should not be a possession for the prescribed period.) The
possession becomes the superior-most kind of evidence when it is doubtful
to which title is prior and which posterior.*! ‘‘It seems to be the natural
interpretation of law that possession is superior to other means of proof’,
declares Yajnavalkya, ‘but the correct approach to this question is that the
concept of possession has two aspects viz., evidentiary and perspective’
Commenting on this interpretation of Yajnavalkya, S.D. Sharma opines,
‘It was to satisfy the moral and ethical instincts of the society as well as
to serve the social purpose that mere possession was considered by Yajna-
‘ valkya under procedural law. He regards possession as a matter of proof
and not as a case of substantive right. That wag the reason, he disallows
proof of title in case of hereditary possession.’’“* According to Yajnavalkya
title and possession combined established proprietary right. Manu held the
View
that-adverse-posse Can Neverssion
iiattire into title. With the growing
complexities in the society, there was a_felt need to recognise adverse pos-
session as a source of acquisition ajnavalkya recognised the need
and supplied the law through procedure. In doing so, ‘‘the whole controversy
as to the propriety of adverse possession in law was wisely transferred from
substantive law to procedural law, and cut the knot’’.2°
21. S.D. Sharma, op. cit., p. 236.
22. Ibid, p. 236.
23. Ibid, p. 237.
 Vil) LEGAL SYSTEM OF ANCIENT INDIA 175

Yajnavalkya allows popular usage to prevail when there is disagreement

among the Law Codices. Sacred law, according to Yajnavalkya, must be
compromised when it is objectionable to all the people. The king must re-
spect the laws and customs of the conquered country. The king’s decree is
not law unless it complies with the basic norms governing the social order.
There is a clear demarcation in the Yajnavalkya of religious and secular
law.
Yajnavalkya laid greater emphasis on civil law. Regarding the law of
debt our law-giver closely follows Manu. On a debt secured by a pledge he
allows an interest of | 1/4% per month, while in other cases 2, 3, 4 and 5%
interest is permitted, ‘according to the descending order of castes’. He rec-
ommends high rates of interest — 10% and 20% ‘upon persons who
travel through forests and those who travel by sea’. He does not favour
usury. For different kinds of articles, afallows a maximum interest of eight,
four, three or two times the principle.”4
i Yajnavalkya is one with Brihaspati relating.to..the. dea of..partition..and
inheritancé--ff-the~ partition took place during the lifetime of the father, the
eldest son was entitled to the best share or else it may be divided equally
among all sons. If the partition took place after the death of the father, his
assets and liabilities were shared by the sons equally. The mother was entitled
to an equal share while the sisters got a fourth part of the son’s share. The
following is the order of succession in the absence of sons: — ‘the wife, the
daughters, both parents, brothers and their sons, the gentiles (gotrajas), the
agnates (bandhus), the pupil and the fellow student’. Yajnavalleya.championed
widow’s right to inheritance.and recognised the widow as an heir. a
Te. kinds of _sridhana are described by Yajnavalkya..They are (1) gifts
given by the father, the mother, the husband or brother, (2) gifts received
at the nuptial fire, (3) gifts received at her husband’s marriage with another
wife, (4) gifts received by her kindred, (5) bridal price and (6) gifts received
subsequent to the marriage. Women had full proprietary rights over srid-
hana, but if the husband utilised the sridhana to meet abnormal times he
was not liable to make it goodIn case the woman died, without any issue,
it was ‘inherited by her husband or her parents, according as she was married
after the four approved or the four disapproved, forms’.
— Yajnavalkya prescribes four types of punishments like gentle admoni-
tion, harsh reproof, fine and corporal punishment. He advises the king to
som his kiths and kins if heed fell from the 7 of law. When the offence \
id 2. fte I, \f rr

24. The Age of Imperial Unity, p. 346. baa ')

176 HISTORY FOR LAW STUDENTS [CHAP.

had been committed for the first time, a cut-purse or opener of knots of
cloth, should have his little finger and thumb cut off; on second offence he
should be deprived of a hand or a foot. The highest amercement is prescribed
for one who knowingly offered help to a thief. Highest fine is prescribed
for interpolation or alteration of a charter. For false witnesses and cheat
arbitrators Yajnavalkya prescribed fine for non-brahmana offenders and ban-
ishment in the case of brahmanas. Banishment is prescribed as a punishment
for officers accepting bribes, brahmanas giving false evidence, for trans-
gressing the rules and regulations of corporate organisations, for playing
with false dice and other fraudulent activities. Capital punishment is pres-
cribed for destruction of an embankment. Death sentence by burning is pres-
cribed for a condemned criminal, wicked females were to be drowned to
death for their offences. For unintentional offences punishments were milder.
CYajnavalkya warns against letting a crime go unpunished regardless of
the status of the wrongdoer. Punishment must, however, be relative to the
circumstances and the nature of the crime) Yet he also holds that punitive
measures must conform strictly to theeSacred writings. The king must be
just and impartial in awarding punishments. As he puts it: ““The unrighteous
punishment destroys the heaven, the glory and the worlds of the king. But
the proper punishment procures him victory, glory and heaven.’ There are
injunctions against the intrusion of the state in the judicial functions of the
brahmanas. Modern scholars are of the view that though Yajnavalkya smriti
‘is one of the most systematic and comprehensive of the law books, and
its influence is second only to that of Manusmriti, it makes only a small
original theoretic contribution’’.

Narada
Narada provides the first legal commentary that is not encumbered with
precepts of religion and morality. He bases judicial procedure on the foun-
dations of dharma, rational law and royal decree. He adds, the divine law
has a subtle nature and very difficult to understand. Therefore, the king must
try cases according to visible path. He further adds that what was opposed
to the revealed and traditional law or injurious to living beings must not be
practised by the king and when it was practised by others the king should
check it. Whatis more, he gives an elaborate description of the courts of
justiceand makes the king’s representativeasa permanent judicial functionary.
judicial procedure advocated by Narada is a highly complex one.
A plaintiff first filed plaint stating precisely his claim and the statementof
the plaint had to be recorded in writing. A plaint could be amended at any
time before the defendant filed his answer. The plaintiff could put the
Vit) LEGAL SYSTEM OF ANCIENT INDIA 177

defendant under arrest (asedha) or restrain his free movements by an appeal

to the king until legal summons had been issued. All plaints were not ac-
ceptable. Narada declares that the plaints which related to irrelevant subjects
or were vague, meaningless, wanting in propriety, deficient or redundant in
writing and had been damaged should be rejected.
After the plaintiff preferred his claim the defendant has to record his
answer in four different ways — denial, confession, protest or a special plea
and a plea of previous judgment, says Narada. Narada, like Yajnavalkya,
speaks of three kinds of proof, viz., documents, witnesses and possession.
In the absence of documents and witnesses, Narada allows recourse to the
ordeal (which consisted of seven classes). He held the view that a document
was always strong, hereas witnesses were strong so long as they were.
living, while possession became strong with the passage of time. Nard 4g
Narada divides the documents into two classes — one written by the
executant himself in his own hand and that written by another without at-
testing witness although they needed to be attested. Narada amplifies and
explains the views of Manu in respect of witnesses and divides them into
eleven classes — a subscribing witness, one who has been reminded, a casual
witness, a secret witness, an indirect witness, the co-villagers, a judge, a
king, one accuainted with the affairs of the two parties, one deputed by the
claimant and members of the family. Narada is content with a minimum
number of three witnesses. Generally in disputes between women female
witnesses were preferred while in disputes between members of groups
(Sreni, puga, etc.) the heads of these associations were regarded as: proper
witnesses. After listing the inadmissible witnesses he states ‘‘a child would
speak falsely from ignorance, a woman from lack of veracity, an imposter
from habitual depravity, a relative from affection, an enemy from desire of
revenge’’*> and therefore they should be avoided.
Finally, the judicial proceedings came to an end with the pronouncement
of judgment by the sabhyas. The winners received the jayapatra (document
of victory) while the defeated was punished by the king according to the
sastra. ‘“When a man loses his case through dishonesty of witnesses’’, says
Narada, ‘‘the case may be tried afresh, but not when he has been cast out
through his own fault’’. Great sanctity was attached to the judicial procedure
becomes evident from the following statement of Narada: ‘‘When the law
suits were decided properly the members of the court were cleared from the
guilt. Their purity depended on the justice of the sentence passed by them.”’

25. See Sukla Das, op. cit., p. 119.

178 HISTORY FOR LAW STUDENTS [CHAP.

Regarding the law of debt, Narada enlarges Manu’s rules on the subject.
He prescribes four kinds of interest-periodical, stipulated, corporal and com-
pound. He makes the sons, grandsons and great grandsons liable for the
payment of ancestral debt (if they had inherited ancestral property naturally)
while the sons and the grandsons had to clear debt without interest even if
they had not inherited ancestral assets.7° Narada makes important contribu-
tions to the law of inheritance and partition. When the property is divided
by the father himself he could keep two shares and distribute the rest among
his sons, according to his own inclinations; if partitioned after his death, it
was to be shared equally by his sons after clearing his debts. A legitimate
son proved to be ‘hostile to his father, or is expelled from caste, or guilty
of a minor offence, was not entitled to inheritance’. The daughters were
entitled to inherit in the absence of sons, while a widow was given the right
of maintenance. Narada allows a capable youngest brother to manage the
family. This ‘remarkable rule cuts at the root of the strict law of primogeniture’. 4
Narada divides punishments under two broad heads — corporal and
monetary. The corporal punishment is further subdivided into two groups
while monetary is divided into more than one group. For theft from nominal
fines to death sentences were prescribed. Generally Narada prescribes a fine
five times the value of the article stolen. For lifting domestic animals fine
according to the size and value of the animal; for stealing a woman, con-
fiscation of entire wealth; for stealing a maiden, corporal punishment; and
for stealing a female slave, mutilation of half of his feet are prescribed. For
sahasa of the lowest and middle most degrees monetary punishment is pres-
cribed. But for the sahasa of the highest degree not only a heavy fine but
corporal punishment, confiscation of entire property, banishment, branding
and amputation of limb were prescribed.”® ‘‘The idea of theft being a private
wrong is reflected in the clause that a man receiving stolen property must
restore it to the owner, or make good its value besides paying a fine. The
view of theft as a sin is illustrated by the clause that a thief approaching
the king and confessing his guilt is freed from sin’’.?°
Unlawful intercourse with a woman was regarded as an offence pun-
ishable by law. For violating an unwilling woman two fingers of the criminal
were to be cut off and if the woman happened to be a brahmana then death
and confiscation of entire property is prescribed. For adultery with a female

26. The Age of Imperial Unity, p. 351.

27. Ibid, p. 351.
28. Sukla Das, op. cit., pp. 59-60.
29. The Age of Imperial Unity, p. 352.
 Vil} LEGAL SYSTEM OF ANCIENT INDIA 179

ascetic excusion of the organ is imposed. Disobedience to the king invited

death and for censuring a dutiful king confiscation of entire property and
amputation of tongue is prescribed. Narada suggests the selection of eight
sites for infliction of privy parts, the abdomen, the tongue, the two hands,
the two feet, the eyes, the nose and the two ears. Narada warns the king
not to deprive the criminal of the implements by which he earned his liveli-
hood while confiscating his entire property“? He favours giving due con-
sideration to the nature of the offence, its time and place, the ability and
motive of the offender before inflicting punishment.

Katyayana
Katyayana makes up ‘‘a triumvirate in the realm of Hindu Law and
procedure’’, the other two being Brihaspati and Narada. Katyayana’s work
has not come down to us in its complete form, but has been ‘compiled by
scholars by piecing together the quotation in later works’. Katyayana, along
with Narada and Brihaspati, represents the last stage of legal development.*!
Katyayana’s code is rational and refreshing.
Katyayana gives a detailed account of the constitution of the courts of
justice. He requires the ki isputes in the presence of the
judges, the mini ohitas and| sabhyas (asses-
sors). Elsewhere he says the king must decide. dissputes in
n association with
learned brahm as, elders and ministers well-versed in statecraft. In doing
SO he-allaine heaven. Katyayana also includes a few merchants in the para-
phernalia of king’s court so as to enable them ‘to listen to the case and take
part in the administration of justice’. Since the king decided disputes on the
advice of the judges and assessors, Katyayana required them to tender just
advice and persuade ‘the king to desist from a wrong decision’. He sanctions
immunity to the assessors who follow the law in letter and spirit in admin-
istering justice.
The categories of State courts as given by Narada and Brihaspati are
approved by Katyayana. But he makes a distinction between the ganas and
the pugas. He equates ganas with kulas or the assembly of families. The
_Vyavahara prakasa considers gana and puga as synonyms, but our law-
giver is not that explicit.
An elaborate description of the court procedure is given by Katyayana.
He requires the litigant to appear before the court at the right time and make
his bow to the king or the judge. The latter should interrogate the litigant

30. Sukla Das, op. cit., pp. 70-73.

31. Ibid, p. 7.
180 HISTORY FOR LAW STUDENTS [CHAP.

‘about the nature of the dispute or of the injury received: the judge after
considering the reply along with the assessors and the Brahmanas should
deliver the sealed order (‘‘seal’’) to the plaintiff, or else order the bailiffs
to summon the defendants, if he thinks that the suit is maintainable in law.
The plaint is to be written as a draft on the ground or on a board and after
amendments, if any, the final plaint is to be written down on leaf or on
paper’.** The plaint which contained an imaginary grievance, disclosed no
injury, contained letters or words making no coherent sense and contradic-
tory statement is to be rejected. Katyayana requires that priority should be
given to a plaint where injury was greater or the cause more important. If
the defendant failed to appear in the court in obedience to its order he is
punishable with fines proportionate to the gravity of the offence. The parties
could send their representatives, agents or relatives, when personal attend-
ance was not mandatory. But Katyayana does not allow representatives in
serious cases. The free movements of the defendants could be restricted by
a process of law until legal summons had been served. Transgressions from
such prohibitions incurred legal punishments. The parties to the dispute had
to give sufficient surety for the satisfaction of the judgment. Otherwise the
court bailiff (sadhyapala) is authorised to take them into custody. According
to Katyayana, ‘he who spoke on behalf of another without being either the
brother, the father, the son or the appointed agent was punishable’.
When the plaint was accepted, the defendant had to file his answer
without delay. Katyayana does not favour granting adjournments for the
purpose. The answer may be of four kinds — admission, denial, protest or
a speal plea and reference to former judgment. Silence or refusal to answer
was considered as equivalent to admission.
The truth of the statement made by the parties was found out on the
basis of proofs produced. The mode of proofs were of two kinds, human
and divine (divyam). The former consisted of documents, possession and
witnesses. Ordeals were of divine method of proof. According to Katyayana
ordeal was to be resorted to only in cases in which the ordinary method of
proof was not feasible. He further declares that ‘ordeal of fire should not
be offered to blacksmiths and lepers, water to those who plied boats, or who
suffered from breathing difficulties, poisons to the experts in incantations
and yogic practices, kosa (sacred libation) to drunkards, gamblers, athiests
and persons fond of women’. Again, when witnesses residing in distant lands
could not be produced in a court, their written evidence recorded before a
learned man could be sent for deciding cases. Katyayana warns that when

32. Quoted in The Classical Age, p. 364.

 Vil} LEGAL SYSTEM OF ANCIENT INDIA 18]

a litigant abandoning a strong ground or a means of proof resorts to a weak

one to prove his case he would not again be entitled to relay on that strong
ground of proof after the members of the court have decided as to who
should succeed.
Katyayana appears to have anticipated that claims might arise which
would be against the public policy or they could not be granted because of
the nature of relief sought for. Therefore, he refuses a remedy if it is not
sanctioned by the usages of the country.”
A verdict pronounced by the court is called jayapatra (document of
victory). The term jayapatra is used by Katyayana to suggest claims that
are cast off without a thorough trial. A verdict that was pronounced after
going through all the four states of judicial proceedings is called paschat-
kara (refutation). The paschatkara was to set forth the matter adduced to
be proved, the answer, deliberation of the court and the decision of the
judge. Katyayana recommends it to be written by the king under his own
hand (svahasta) and signed by his judicial members.
The older smritis are generally followed by Katyayana pertaining to
the sources of law. He merely adds the usages of the country to the list and
says the royal edict must not violate the regulations of the Vedas and the
smritis. He makes a clear distinction between civil and criminal law.
£ The notable development in the law of partition and inheritance in Ka
tyayana is the permission he accords to the widow to succeed immediately
to her deceased husband’s property. In the absence of the sons, the father’s
property was shared by daughters, the father, the mother the brother and his
sons. The scope of the sridhana is enlarged as to include ‘‘all property
(whether movable or immovable) obtained by a woman, either as a maiden
or at marriage or after marriage from her parents or the family or relatives
of the parents or from the husband and his family (except immovable
property given by the husband)’’. He upholds women’s absolute right over
sridhana. Katyayana declares that ‘the sridhana of the mother goes to the
sisters whose husbands are living along with the brothers, and it devolves
~ on the sons on failure of daughters’.
Laws of Katyayana relating to crimes may be grouped under four broad
heads — Abuse and Defamation, Assault, Theft and crimes of violence.
Katyayana defines abuse as utterance before another censurable to public
conception. Continuing he says by warning a man against mixing with one
who had committed serious offence did not mean defamation provided the

33. S.D. Sharma, op. cit., p. 202.

182 HISTORY FOR LAW STUDENTS [CHAP.

charge was true. The nature and gravity of the crime in respect of abuse
and defamation was determined on the castes of the parties. Katyayana re-
quires the king to award only half the fine prescribed if the accused declared
that the offence was done due to ignorance, carelessness, rivalry or friendship
and promised not to repeat it again.
The heading Assault includes ‘causing pain, making blood flow, wound-
ing, fracturing, cutting and piercing’. Such ‘acts as making domestic animals
carry burdens at an improper time or in a tired or hungry condition, causing
sacred animals to bear burdens and destroying tress’ were also included
within the scope of assault. Katyayana prescribed cutting off the ear, the
lip, the nose, the foot, the eye, the tongue, the penis, the hand to other
physical injury or wound. For injuring trees, shrubs and creepers and cruelty
to animals fines are prescribed.
Theft (steya) was the commonest crime. Katyayana defines theft ‘as an
act which deprived man of his property clandestinely or openly either by
day or by night’. Fraudulent traders, quacks, cheats, ignorant priests offici-
ating at the sacrifice, incompetent teachers claiming to propound the sastras,
etc. were in the class of patent or open thieves, while house-breakers, robbers
and stealers belonged to the class of clandestine or secret thieves. Mutilation,
imprisonment, confiscation of property, exile and death are prescribed as
punishment for theft, alike abuse, punishment for assault was to be deter-
mined according to castes. The king is required to restore the stolen property
or pay its value to the owner.
Crime of violence (sahasa) is defined ‘as an act committed with vi-
olence and in the presence of men’. Katyayana includes ‘such acts as murder,
robbery accompanied with violence, assault on another’s wife, causing injury
to precious articles, destroying images of gods and causing damage to
temples, injuring the city-walls and obstructing the flow of water running
in a channel under the head sahasa. As for punishments, Katyayana says
‘he who committed a crime of violence, who was a helper, who gave advice
as to the why of carrying out the act, who gave asylum to the offender, who
supplied weapon and food, who incited an offender to start a fight, who
showed the method of destroying the man, who connived at the commission
of an offence, who exposed the faults of the person killed, who gave his
approval to the offence, who though able did not prevent the commission
of the crime were all considered perpetrators and liable according to the
nature of their guilt’. Katyayana blends crime and tort becomes evident from
the clause ‘that a person injuring or destroying valuable articles has not only
to pay a fine, but also to give a similar article or its value to the owner’.
Vil} LEGAL SYSTEM OF ANCIENT INDIA 183

Katyayana, like the older smritis has a class of offences called offences
against public justice. The non-appearance and refusal to give evidence by
the witness was to pay the debt in dispute and an equal amount of fine; for
citing a false witness banishment from the country was the punishment pres-
cribed. Similarly the judges and the assessors who conversed with the party
privately, the assessors who gave verdict without properly following the
course of the trial and the assessors who caused loss to the litigant through
their own fault were liable for punishment.
Katyayana who enlarges on the provisions put forth in the Manusmriti
also makes important original theoretic contribution.

3. The Sources of Law

In the Vedic period, when the social and state formation was yet to be
completed, dharma, which emanated from the Vedas, was the main source
or sole source of law. Manu says ‘“‘Revealation (sruti, the veda) is the su-
preme authority for those who desire to know dharma’’. The Vedic con-
ceptions of rita and satya are the precursors of the concept of justice.
Rita is rectitude, the straight path leading man to perfection. It also
means a divine cosmic order by which the universe and even the gods were
governed. It is the law that regulates the punctilious performance of Vedic
sacrifices. According to Bloomfield, ‘“The high thought of the Rita is in
many ways similar to the Confucian idea of order, harmony and absence of
disturbance. It is unquestionably the best conception that has been elaborated
by the Aryans. We have in connection of Rita a pretty complete system of
Ethics, a kind of Counsel of Perfection. Finally in man’s activity Rita mani-
fests itself as the moral law.’’*4 Rita as it manifests itself in the moral con-
sciousness of man comes to be called satya or truth. It is satya that is
socialised that becomes dharma, which stands for a perfect social order
where there is harmony, where everything is in place and where every in-
dividual gives in accordance with his capacity and receives in accordance
with his needs. Satya and dharma are the goal of ethical endeavour. They
guided the life of the Vedic people.
The dharmasutras considered the Veda as the first and the foremost
source of Hindu Law. Apastambha maintained that the Veda alone was the
real source of dharma. Gautama declared, ‘Veda is the source of the sacred
law’. The same view is echoed by Vasistha and Baudhayana. But with the
growing complexities in the society it was felt that the Vedic hymns are not

34. The Religion of the Veda, pp. 126-28.

184 HISTORY FOR LAW STUDENTS [CHAP.

only difficult to comprehend but also to relate to current practice. Vedas

became inadequate for regulation of the large segments of social life. As a
consequence dharmasastras were absorbed in the tradition and both the
Vedas and dharmasastras became the roots of dharma, the source of Hindu
Law.
Manu, the most outstanding exponent of the dharmasastra school,
speaks of law as having four legs, sruti (Vedas,) smriti, customs of holy
men (sadacara), and one’s own inclinations. Medhatithi, commentator on
Manu, explains sadhunam acara as practices of good men which was in-
terrelated with ‘Vedavidam’ or learned in the Veda. The two qualifications
together comprised sadacara. According to Manu, in case of conflict the
sruti prevails over smriti and these have precedence over sadacara and
one’s own inclinations. When in any action srufi and smriti injunctions were
not available but the sadacari (qualified man) considered the action as
dharma or right, then that action was regarded as ‘enjoined in the Veda’.*°
Yajnavalkya speaks of five-fold sources of law. He adds equity and
custom to Manu’s four-fold sources. He takes sadacara to mean those re-
ligious and spiritual acts that are performed by men free from selfishness,
hypocrisy and other defects.
It follows from what has been stated above, the Vedas and later texts,
not properly part of the Vedas, are considered sacred knowledge and hence
sources of dharma. In the same spirit custom and tradition are accepted as
the bases of law. But Kautilya says that the sources of law are four, in an
ascending order of validity: dharma, abiding in the nature of things; contract
(vyavahara) to be established by witness; local custom (carita), as under-
stood by the people; and the king’s order (rajasasana). Continuing he says,
“‘whenever there is disagreement between history (carita) and sacred law
or between evidence and sacred law, then the matter shall be settled in
accordance with the sacred law. But whenever sacred law (sastra) is in
conflict with rational law (king’s law), then reason shall be held authorita-
tive; for these the original text (on which the sacred law has been based) is
not available’. Kautilya gives the final authority in determining what shall
have the sanction of law in governing social relations. Even custom is sub-
jected to king’s interpretation. Dharma, in this radical conception of law,
is brought more directly within the province of the king. Yet statute law
must be compatible with the Vedas and the social order defined therein.
Kautilya does not favour any radical departures from custom. ‘‘By these

35. Sukla Das, op. cit., p. 139.

Vil) LEGAL SYSTEM OF ANCIENT INDIA 185

innovations, Kautilya has not only opened a new chapter in the history of
law both in regard to its concept as well as procedure, but also marks himself
as a most radical thinker’’. Kautilya exalts royal power, particularly the
power of legislation by edicts and decrees, to a height unknown before in
India. Only one later law-giver, Narada, who accepted it as correct says that
‘when it is impossible to act up to the precepts of the sacred law, it becomes
necessary to adopt a method founded on reasoning because custom decides
everything and overrule the sacred law’.
The rules and regulations of the srenis, nigamas, ganas and so forth,
mimamsa, nyaya (logic), puranas, itihasa came to be considered as auxi-
liary sources of law. ‘It thus appears that though the essence of law remained
unchanged, its application and interpretation had to adjust with the cycle of
time and changed social environs’.

4. The Concept of Dharma

It is not an easy task to determine the precise meaning of the term
dharma. A distinguished Western indologist, F. Kielhorn, wrote: ‘‘I find no
English word by which I can fully express all the meanings of the Sanskrit
Dharma.’ P.V. Kane feels that the exact meaning of the term dharma is
uncertain. To this K.V. Rangaswami Aiyangar adds that dharma is of
various kinds, constantly growing and never very definite. People take what
meaning they like out of it and what they take out of its determines their
outlook on life.
Etymologically, dharma means what holds things together. Dharma,
formed from the word dhr, to hold, means that which holds things together
and maintains it in being. ‘It is, in other words, the spirit of integration that
works all through the entire gamut of life in the individual, in the community
and the world at large. Anything that disrupts or tears up the integrity of
humanity or the integrity of the world is adharma. It is the principle of
disintegration’. India’s social philosophy may be summed up in the ex-
pression ‘Philosophy of Integration’. Sir Monier Williams used the term
dharma to imply that which is established or firm, steadfast decree, statute,
ordinance, law, usage, practice, customary observance or prescribed conduct,
duty, right, justice, virtue, morality and religion.*®
The notion of dharma marks the coalescence of the integrity of the
individual and the integrity of the society. Dharma is the law of human
progress. Widespread means of happiness on earth and final beatitude are

36. A. Sanskrit English Dictionary, p. 510.

186 HISTORY FOR LAW STUDENTS [CHAP.

the corollary of this law. According to Manu, ‘‘Dharma is the way which
has been followed and lived with perfect purity of heart, by the wise and
the learned, who have neither likes nor dislikes, who wish well of all crea-
tures, who are knowers of Veda, and whose conduct conforms to the standard
of dharma’’.>7 Commenting on this verse Medhatithi explains dharma as
that ‘which is conducive to the fulfilment of the higher ends of man’. The
higher ends of man ‘consists in attaining a satisfactory type of life which is
an end in itself, but which is accompanied by a sense of satisfaction’.
The word dharma comprehends within itself the ritualistic ethics and
the ethics of righteousness. The former leads to customary morality and the
latter to reflective morality. Hence the wider meaning of dharma includes
in itself the customary observances of caste as also the qualities of the soul.
The smritis endeavour at an elaboration of a technique of ethical life.
eyThere are various kinds of dharma. The dharma which is common to
all is called sanatana dharma or sadharana dharma. Sanatana dharma
is regarded as the one which liberates man from the clutches of lust, wrath
and greed. Manu mentions ten characteristics of sanatana dharma: ‘Forti-
tude, patiénce, restraint, abstention from unrighteously appropriating any-
thing, purity, control over senses, correct discernment, culture, truthfulness
and sweet temper’. To this the Mahabharata adds, ‘austerity, cheerfulness,
modesty, forgiving disposition, uprightness, knowledge, screnity, kindliness
and meditativeness’. Active cultivation of friendliness to all living beings in
thoughts, word and deed, is further commended as the essence of good life.
( Though sadharana dharma was applicable to all, yet each class (varna)
had its own dharma becomes evident from varnasrama dharma, a unique
system of social obligation. According to this scheme of varnasrama
dharma each varna (class) — brahmana, kshatriya, vaisya and sudra — had
its own dharma. ‘The ultimate significance of individual dharma is to be
sought in the social context. Every individual or every class therefore must
fit into the mosaic of the social order. Each individual is a part of one
stupendous whole but at the same time each is distinct from the other in the
nature of the contribution which he has in him to make for the enrichment
of the whole in consonance with his diversified psychological endowment
expressed by the term guna’.
Guna means quality, the quality, the inclinations of the individual to
perform a particular type. Varna was not based on birth, but on function or
occupation. Manu, for example, says that the sudra becomes a brahmana

37. Chapter Il, 1.

VII} LEGAL SYSTEM OF ANCIENT INDIA 187

and a brahmana a sudra by conduct. In the Mahabharata Yudhisthira teaches

a similar doctrine. ‘*‘Neither birth, nor samskara, nor study of the Vedas,
nor ancestry are causes of Brahmanahood. Conduct alone is verily the cause
thereof.’’ From this point of view, the dharma of the individual and the
dharma of the society become intertwined. The Varnasrama dharma elimi-
nated the danger of unmoral and cut-throat competition in the society. It
shows, at the same time, that there was an opportunity for everyone to rise
to a higher level. ‘“The Varna and asrama systems provide social norms
the observance of which is primarily helpful in the maintenance of the social
order but ultimately leading to the spiritual welfare’’.
Understood thus, the concept of dharma in its collective aspect is the
foundation of all Hindu ideas of progress and social order which have to be
construed in the light of the higher ends of man or in the light of the spiritual
goal of the people. Departmentalisation of life into the secular and spiritual
is contrary to this conception of life. Whatever an individual does is secular
and at the same time is not devoid of spiritual significance.

5. Law-making and Law-interpreting Process

A body constituted for purposes of framing laws, in the modern sense,
does not apnear to have existed in ancient India. It would be too much to
read in ancient Indian literature the modern parallels. Till about the beginning
of the Christian era, Vedas (srutis ) constituted the main leg of law. They
were the paramount authority. Sacredness is attached to the Vedas as they
are of supernatural origin. ‘‘As smoke spreads all around when fire is laid
with damp wood’’, says the Brishadarankya upanishad, \ikewise from the
great being breathed forth the Rig Veda, the Yajur Veda, the Samaveda
and the Atharvangiras. Though the Vedas were difficult in legal matters,
they served a useful purpose as the society was small and tribal in character.
When the society grew complex and the Vedic regulations were found
to be difficult to relate current practice, the smriti codes came in handy to
fill this gap. The smriti regulations took into consideration the needs of the
changing society in formulating laws to govern all aspects of life, secular
and spiritual. Though they drew heavily from the Vedas, the chief merit of
the smritis lies in the regard they show for the prevailing practices in the
society. In the history of Indian jurisprudence we are met with, for the first
time ordinances or laws emanating from the human source or human authors
as opposed to divine authorship. ,
Kautilya was the first_thinker to conceive of statutory law. According
to him royal order supersedes all other sources Of Taw including dharma.
188 HISTORY FOR LAW STUDENTS [CHAP.

Further he says in case of conflict between the sacred law and the rational
law, the latter supersedes the former. >
It is evident from this there is an exaltation of royal power, though the
rajasasana has to be in accordance with the dharma. Even if this pro-
nouncement of Kautilya be taken as didactic, Asoka’s edicts give clear proof
of all pervading character of royal orders touching even the social and re-
ligious life of the people. This is the first instance where the state took upon
itself the responsibility of law-making to regulate large segments of the society.
As for the corporations formed for purposes of social or economic ac-
tivities, such as the srenis, nigamas, ganas, etc. the srenidharma or the
rules and regulations of the guilds were determined by the executive com-
mittee and they were binding on their members. The king is required to take
cognizance of the srenidharma in deciding disputes. Thus the law-making
process passed through at least three main phases, divine authorship to
human authorship and finally to the king, the fountainhead of justice.
With the passage of time and with the recognition of a sphere of statu-
tory law, a distinction between moral and positive law, and the sanctions of
both, came to be understood. But such factors as the objectification of sacred
law in the varna structure prevented a sharp delineation of the two that
would allow the individual freedom of moral choice and prevent the inter-
ference of the state in the relation of values.
In the greater part of the Vedic period the seers or the sages appear to
have interpreted the law. The rishis of the upanishad were regarded as the
seers of truth and the truths they realised through institution were considered
as identical with the commands of the Creater.** The definition of sista as
given by Baudhayana echoes the sentiment. According to him, the sistas
are those ‘who are free from envy, free from pride, contended with a store
of grain sufficient for ten days, free from covetousness and free from hy-
pocrisy, arrogance, greed, perplexity and anger, who in accordance with the
sacred law, have studied the Veda together with its appendages, know how
to draw inferences from that and are able to adduce proofs perceptible by
the senses from the revealed texts’.*? It is clear from this that men of un-
impeachable character, honest and well-versed in the sacred texts interpreted
the law. In fact the Vedic sabha was made up of such learned men who
helped the king in the administration of justice.

38. Studies in Hindu Political Theory, p. 111.

39. Quoted in Sukla Das, op. cit., p. 140.
 Vil} LEGAL SYSTEM OF ANCIENT INDIA 189

The dharmasastra \iterature show an awareness to relate the law and tradi-
tion to the changing needs of the community or evolving social conditions. This
is most apparent in the Yajnavalkya Smriti. The dharmasastras envisage a
commission consisting of learned brahmanas to determine the needs of the
people and assist the king in judicial administration. In this we see a definite
step towards the accommodation of various religious creeds and an attempt to
take cognizance for their rules and customs in administering justice.
here is also a reference_to the parishads consisting of three, five or
ten members, versed in the Veda to settle what was law and what was not,
i.e. to interpret the law. There were the judges and assessors (sabhyas). The
qualifications prescribed for them do suggest they were required to be men
of high learning, versed in law, devoted to their work and capable of bringing
round the king on the right path of justice. They set the king on the right
—
—_———-

path by the proper interpretation of law. A wew dimension to the process

of interpreting law came to be added when pleaders came to be associated
with the argument of the cases before the courts.

6. Law and Custom

Custom, as mentioned before, was one of the four main sources of law.
There was a tendency, from very early times, to attach special significance
to customs. Some of our law-givers even went to the extent of saying that
the custom would override the smritis. Max Muller thought that the earliest
tendency of this trend could be seen in the attempt to place kalpasutras
next in position to customs. According to Vasistha, the rules of the smritis
were laid down for general applications but could be overridden by the
customs provided the latter does not come in conflict with the Veda.
Customs gained precedence over the smritis because of the changing
needs of the society. The Dharma sastrakaras themselves could not have
anticipated such developments. This explains the statement of the smriti-
karas that each age must have its own dharmasastra. Changes were taking
place in the varna structure and this was further complicated by the Indiani-
sation of the foreigners like the Greeks, Sakas, Pahlavas, Kushanas and so
forth. Their absorption in the society gave rise to confusion and social order
could be maintained by recognising the new customs and practices which
were not approved by the smritis. We find the later smritis according sanc-
tion to changed practices and customs. This explains why the customs ac-
quired greater validity than the smritis.
190 HISTORY FOR LAW STUDENTS [CHAP.

Narada, a later smriti writer, declares that ‘‘when it is impossible to act

up to the precepts of sacred law, it becomes necessary to adopt a method
founded on reasoning because custom decides everything and overrules the
sacred law’’.*° It was the view of Vijnanesvara that the dharma which was
condemned by the people must not be recognised. Manu and Yajnavalkya
consider the customs prevailing in Aryavarta as a model and recommend
their observance by others; while Vasistha favoured their observance every-
where.
Customs and practices varied from region to region and the smritikaras
recognised the diversity of the customs. Brihaspati recognised ‘the need of
preserving the usages of each country, caste and family intact in legal mat-
ters, otherwise the people may rise in rebellion and disobey their rulers’. He
noticed the diversity of customs or usages and says that the maternal uncle’s
daughter is taken in marriage among the ‘twice born’ inhabitants of the
south, in Madhyadesa, they eat cows, the people in the east are fond of
fishes, in the north women take alcoholic drinks, and the people of Khasa
marry the widow of a brother, these need to be recognised.*! Manu declares
that ‘jatidharmas (caste rules), janapada dharmas (local customs), srenid-
harmas (guild customs) and kuladharmas (family traditions) were to be
counted’. The ancient works on statecraft recommend that the victorious
ruler must show respect for that which the vanquished holds sacred, as also
the rules, customs and usages prevailing in the country. Kautilya goes a step
forward and says that the conqueror ‘should adopt the same mode of life,
the same dress, language and customs of those people. He should follow
the people in their faith with which they celebrate their national, religious
and congregational festivals or amusements’.
These show the respect with which the Hindu thinkers held the customs
and usages of the people living in different climes. In doing so they created
a favourable climate for the evolution of customary (or secular) law. It is
important to note that the sacred law and the customary law developed side
by side and together they helped the Hindu Law to take its form. To put it
differently, the Hindu Law is made up of both the sacred law and the cus-
tomary law.

7. Human Law and Divine Law

The law that has its base in the Veda (sruti) is called the divine or the
sacred law as divine authorship is attributed to the sruti. The law that is

40. 1.40, quoted in Sukla Das, op. cit., p. 140.

41. See Sukla Das, op. cit., pp. 140-1.
Vil} LEGAL SYSTEM OF ANCIENT INDIA 19]

based on the smriti is called human law as the authors of the dharmasastras
were human and not divine. To this category belongs the customary law
which was evolved out of the changing practices in the society. As men-
tioned before dharma or law which has its base in the Veda was the para-
mount authority of the Hindu Law; yet it was not the only source. Hindu
legal writers consider dharma as springing both from sruti and smriti. Some
codists regard smriti as a secondary source of law, Kumarilabhatta says,
‘“*In as much as these smritis have emanated from human authors and are
not eternal like the Veda, their authority cannot be self-sufficient. The
smritis of Manu and others are depended upon the memory of their authors,
and memory depends for its authority on the truthfulness of its source; con-
sequently the authority of not a single smriti can be held to be self-sufficient,
like that of the Veda, and yet, in as much as we find them accepted as
authoritative by the unbroken line of respectable persons learned in the Veda,
we cannot reject them as absolutely untrustworthy. Hence it is that there arises
a feeling of uncertainty regarding their trustworthy character.’’ There was this
initial hesitancy, but soon the smritis came to be absorbed in the tradition and
their authors often acquiring a status as exacted as that of the Vedic seers or
poets. Also, the ordinances of the smritis achieved a stature comparable to that
of the Vedas. With the passage of time customary law and the rational law
were held to be authoritative in legal disputes. Kautilya and following him
Narada declare rational law to be superior than the sacred law. This must not
be taken to mean that the sacred law went out of vogue; it continued to be held
as authoritative in certain aspects of social and religious disputes.
Thus one does not witness any confrontation between human law and
divine law. The framers of the human law did not completely set aside the
Vedic functions altogether, and did everything possible to accommodate its
spirit. They were more guided by the changing social environs.
Ancient Indian thinkers were conscious of the fact that social order is
a necessary precondition for the political order which alone could assure
peaceful atmosphere in which the people could pursue their rightful avoca-
tions without let or liindrance. The Vedic sages and the smritikaras came
on the scene and provided rules and regulations for the governance of the
society. The smritikaras were not for fixing the scope of law in a steel
frame as it were and favoured taking cognizance of customs and usages in
legal disputes. This paved the way for the evolution of customary law. The
statutory law came to be evolved along with the customary law. These dif-
ferent categories of law formed basis on which the Hindu Law was evolved.
 Chapter VIII

Administration of Justice in
Ancient India

Dre duty to protect is cast on the king by dharma itself and,

therefore, administration of justice is an imperative duty of the king
under Hindu Law. The fundamental obligation placed in kings according
to Hindu theories is: to protect the people, to give them security of life,
property and to maintain social stability in order to enable virtue to
flourish. According to the Mahabharata, ‘protection is the cheese of all
kingly duties’, and all other duties are subordinate to it. The
Mahabharata again declares, “The happiness of the people, the
upholding of truth and maintenance of social order—these are the
unchanging functions of Rajadharma’. Prajaparipalana, the protection
of the subjects, is the supreme duty. The purpose of that protection is that
the people may not lapse into anarchy or matsyanyaya or the fish
analogy, where the stronger will eat the weaker as fish do in water.
‘Under the protection of the king men being fearless can sleep with the
doors of their houses open’. These passages show that the maintenance
of external and internal peace, the upholding of social order, the creation
of conditions under which people can live a free life—this is the wider
meaning that our thinkers have given to the word ‘protection’. The
maintenance of justice and the punishment of offenders (dusta nigrata,
sista paripalana) are the other aspects of the problem of protection. It
was the sacred duty of the king to punish the wrong doers; if he
neglected this work, he would go to hell. The Mahabharata emphasises
that it is only by coercive action, danda, that civilised life can exist at all.
Danda becomes the ultimate sanctions of the government.
Bhisma, while answeting questions relating to the meaning of
justice, its nature, its form and its essence, says: “Penal justice (danda) is
so called in order that the righteousness of the king who is wide awake
may not suffer extinction.... It is (an aspect of) the great Vishnu (the
protector of the world). It is the permanent and eternal form of God
himself. The daughter of God is known (synonymous) by the appellations
of Lakshmi, Goddess of Wealth, Niti (moral laws), Saraswati (Learning)
[ 192]
 ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 193

and Dandaniti (coercive justice).’’ Here Bhisma speaks of two important

ideas. First, that the society is bound together by justice (dharma) and there-
fore justice is the great protective principle and secondly, that economic
prosperity, moral welfare and cultural advancement are dependent on justice.
‘Justice is the basis on which society exists and evolves and external vigi-
lance is enjoined on the king as his own righteousness is dependent on the
maintenance of justice’.
‘Kautilya subscribes to this view. He says. ‘‘If danda be not employed
t gives rise to the conditions or matsyanyaya since in the absence of the —
chastiser the strong devours the weak.’’ Manu is equally emphatic. ‘‘Danda
(penal justice) is the king, it is the lord: it is the protector and regulator of
the state. The wise men regard punishment as the safeguard of social or-
ganisation’’.
Manu says ‘dharmoraksati raksitah’ .Justice being preserved preserves,
justice being violated destroys. ‘Justice must not be violated, lest violated
justice destroys us’. He goes on to say ‘*‘A king who protects his subjects
receives from everyone a sixth part of their spiritual merit. If he does not
protect them the sixth part of their sins also will fall on him.’’ The majesty
and all pervading character of justice is thus brought out by Manu: ‘‘Justice
keeps awake while all are asleep. The wise know penal justice to be dharma.
The people are made happy by the proper administration of justice.’’ All our
thinkers accepted the view that “‘punishment as the guarantor of social order’’.
The king as the dandadhara is required to maintain social order by
punishing wrong-doers and protecting the righteous. He is permitted to use
danda for the purpose of keeping the people within the bounds of dharma.
He is further required to award punishment ‘only after taking into consider-
ation the entire circumstances — ‘“‘inherited tendency motives, time, place,
financial conditions, etc.’’ The king was no autocrat in his administration
of justice, dispensing rough and ready justice. ‘‘He was the arm of the law,
the fountain of equity and the ultimate defender of society through justice’’.
The duty to administer justice under Hindu Law is not a self-imposed duty,
but it is in the nature of constitutional norm which the king is bound to
obey if he is to be called a king at all.

1. Judicial Institutions
There is no clear reference to the existence of judicial organisation in
the Vedic period. It appears village elders acted as judges and punishment
was awarded according to the nature of the offence, in accordance with local
usages or customs. It is very difficult to say whether they had a conception
194 HISTORY FOR LAW STUDENTS [CHAP.

of differentiation of law as civil and criminal. Law was both legal and moral.
It was in that way half law, half morality. There was very little judicial
organisation or procedure of law. To put it differently, justice as a distinct
branch of government was in the making.
a
In ancient India administration of justice was centralised.It always re-
mained separate from the executive and generally dependent in form and
ever independent in spirit. The king was the fountain head of law, and dis-
pensed with justice; he was his own executioner, striking down condemned
thieves. The growing and settled order of society made it impossible for the
king to calry Outalltuncttons ofjudictary-With theresult,theadministration
oYHICGGE GisAeIngated andnnerusted tieSkid Gentes Tie eas
court was reserved for appeals and serious crimes against the state, the rest
of theeSlitigations being ee
entrusted to various—other-courts. —

Brihaspati speaks of four kinds of courts —

1) Pratisthita, court established in a fixed place such as a town, 2)
Apratisthita, circuit court, 3) Mudrita, court presided over by a judge who
is authorised to use the Royal seal and 4) Sasita, court presided over by the
king himself. Narada speaks of various courts with different powers of ju-
risdiction like Kulani (village councils), Sreni (guided courts), Puga or
Gana (assemblies). Reference occur to such courts as Janapada Sandhi,
Sangrahna, Dronamukha and Sthaniya which existed in the capital towns
of the several administrative districts. In the Sanchi stone inscription of
Chandragupta-II we come across the term panchamandali which resembles
the modern panchayats. The village court or grama panchayat was the
judicial machinery of the lowest ladder. It may be surmised that_it must
have been organised on the basis of the sovereignty of the people.)
————

~ The organisation of courts with different powers of jurisdiction was a

feature of ancient system of judiciary. Yet another feature was the preference
to a bench of magistrates than to a single judge. A story in the Jataka speaks
of a bench consisting of five magistrates. Kautilya advises the king to es-
tablish a court with a bench of three magistrates for every ten villages, with
higher courts in the districts and provinces. Manu suggests a bench composed
of the Pradvivaka (Chief Judge) and three other judges. The Constitution
of the court described in Mrichakatika consisted of Adhikaranika (chief
judge), Sresthin (a wealthy merchant) and Kayastha (a representative of the
caste of scribes). The last two members were the leading citizens who were
appointed on the bench to serve on the bench ‘as do our justices of peace’.
The court presided over by the king was the Supreme Court, the highest
court of appeal. Appeals lay from the lower to the higher courts. It appears
 Vil) ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 195

more probable that the regular courts came into being for the first time
during the Mauryan period. For, the note of urgency in the administration
of justice that dominates Kautilya’s chapters on the subject is missing in the
works before him.!

2. Types of Courts
In the Vedic period when the courts were not organised on any syste-
matic basis legal matters were decided at the open court in the palace. In
Vedic times, the sabha which assumed the character of ‘national judicature’
exercised judicial functions as well. A late passage in the Rig Veda has
been taken to represent sabha as a body which removes the stain attached
to a person by means of accusation. ‘In the purusamedha sacrifice the sab-
hacara is dedicated as a victim to dharma (justice)’ Macdonell sees in
sabhacara a member of the law court who took part in the decision of
cases. He considers sabhasad as referring to the assessors who decided legal
cases in the assembly. He further observes: ‘‘It is also possible that the
sabhasads, perhaps the heads of the families, were expected to be present
at the sabha oftener than the ordinary men; the meetings of the assembly
for justice may have been more frequent than for general discussion and
decision.’’ Macdonell feels that the entire assembly might not have exercised
judicial functions, but a standing committee of the sabha might have per-
formed these functions. K.P. Jayaswal has adduced evidence of the sabha
acting as a judicial body. We learn from Aharvaveda that there were ‘sharp
reportees and offensive speeches, as thieves and criminals were dragged
before the sabha, and the richest and the most influential men had to submit
to the decisions of their peers assembled here’. All these point to the exercise
of judicial functions by the sabha.
The Jatakas and the Dharmasutras evidence to the continuance of the
judicial character of the sabha even to later times. An old memorial
preserved in the Jataka says that ‘the sabha which has no good people
(santa) is no sabha and that the people who do not speak out the dharma
(justice) are not good people, and those who avoid personal sentiments and
speak out the dharma are called the good people’. Further evidence to its
continuance may be seen in the Dharmasutras and Smritis which use the
term sabhasad in the sense of assessor and lay down qualifications for their
election. This is the basis for Holkins remark: ‘‘In the legal literature the
1. S.D. Sharma, op. cit, p. 127.

'
196 HISTORY FOR LAW STUDENTS [CHAP.

sabha is a court or judicial assembly presided over by the king as chief

judge, and only the councillors, judges and police
officers take part as men of authority over witnesses and accused.’’* It fol-
lows from this discussion that prior to the constitution of regular courts,
which perhaps, took place in the Mauryan period (fourth century B.C.) trials
were held in the open court presided over by the king as chief judge and
assisted by assessors versed in scriptures. Kautilya mentions two types of
courts, namely Dharmasthiya (civil courts) and Kautakasodhana (criminal
courts). Manu also speaks of these two types, but the seriousness with which
Kautilya deals with the subject is not seen in Manu. We find only a rather
pale reflection of the common tag which summed up the duty of a king as
the restraint of wicked and protection of the good. The civil courts dealt
with disputes involving contracts, trespass, inheritance, labour, libel, mar-
riages, dowry, deposits and interests. These courts were composed of six
judges and were larger courts than the criminal courts. Manu classifies law
under 18 titles without making demarcation between civil and criminal dis-
putes. These were: 1) deposits and pledge, 2) non-payment of debts, 3) sale
without ownership, 4) concerns among partners, 5) resumption of gifts, 6)
non-payment of wages, 7) non-performance of agreements, 8) restriction of
sale and purchase, 9) disputes between the owner (of cattle) and his servants,
10) defamation, 13) theft, 14) robbery and violence, 15) adultery, 16) duties
of a man and wife, 17) partition of inheritance, and 18) duties of a man and
wife, 17) partition of inheritance, and 18) gambling and betting. ‘“These
topics, though are not exhaustive, yet they cover (a) the law of property,
(b) law of persons and (c) law of obligations. These topics are based on the
requirement of the society as reflected in the aims and aspirations of the
people. They also include cases involving criminal liability.
The criminal law courts, according to Kautilya, took cognizance of the
following cases:
1) protection of artisans, merchants, etc., 2) suppression of the undesir-
ables, 3) detecting criminals by means of spies, 4) arresting the suspicious
or real culprits, 5) post-mortem examinations, 6) discipline in various state
departments, 7) punishment for mutilation, 8) capital punishment, 9) ravish-
ment of immature girls, 10) examination by word and action thereon, and
11) miscellaneous offences.
Kantakasodhana was in the nature of the ‘doctrine of police power’.
Hence, “‘the king in order to regulate the liberties of its people and to ensure
the peaceful enjoyment of their rights was obliged under the doctrine of

2. Journal of the American Oriental Society, Xl, p. 148.

Vill} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 197

Kantakasodhana to a all such impediments ary aes were in-

such anti-social em which acted against the est d oe order’”’

In fact the conception of the administration of criminal justice went hand in
hand with the police jurisdiction and the one completed the other and was
completed by the other. There are detailed instructions in the Arthasastra for
investigating cases of homicide and suicide. These go to show the high level
that culture and civilisation had attained during the epoch of the Mauryas.
A recent writer on the administration of justice in ancient India thinks
that Kantasodhana does not deal with the criminal administration as such.
The mere provision of punishment for different kinds of offences approxi-
mate to the power possessed by modern governments ‘‘to make regulations
to promote health, peace, morals and orders in the State. It is the right of
the State to impose restrictions on the business community and frame regu-
lations for their observance. These regulations ensure free and smooth fune-
tioning of trade, commerce and intercourse within the State. Thus the idea
of police power implies the inherent right of the State to impose restrictions
On the rights of the people in the interests of the people. The subjects dealt
with under the head Kantakasodhanam fall within the power of the State
to make suitable provisions for the welfare and prosperity of the people,
which delimit the interests and rights of the people in the interests of the
general public’’.?
The civil_and the criminal courts appear for the first time and were
unknown to the old system. They were introduced ‘to meet the growing
needs of an increasingly complex social economy and to implement the
decisions of the highly organised bureaucracy on all matters that were being
brought under its control and regulation’. In the work allotted to them one
can see an effort to safeguard both government and society from the possible
evils of the new order in which the control of the government as also regu-
lation became more far-reaching and omni-present, and new officials hand-
ling vast discretionary powers were in the offing.
For criminals, who were cruel in their offences, Kautilya envisages tor-
ture to elicit confession. Indeed, he devotes a whole chapter to detail this
dismal and woeful aspect of law. A silver line in the whole thing is the
safeguards it provides. There was no provision for the arrest of the persons
three days after a crime had been committed. The young, the aged, the
diseased, the intoxicated, the mad, those suffering from hunger, thirst or
fatigue due to journey, those who confessed their guilt, the physically unfit,

3. S.D. Sharma, op. cit., pp. 149-51.

198 HISTORY FOR LAW STUDENTS |CHAP.

the pregnant women, and those who had not passed a month after delivery
were generally exempted from torture. For the rest, torture was only half of
the prescribed standard. The use of torture could be ordered only by the
king.

3. Courts of the Guilds

Movements for the organisation of guilds started towards the end of the
Vedic period. Panini refers to gana, puga vrata and samgha. We see in
these terms a trend among the artisans, craftsmen and merchants to form
their own corporations for purposes of economic activity, the object being
he object
to gain wealth by pursuing their own profession.” There were “guilds in
ine
every
important towns embracing all trades, industries, arts and crafts. There was
even the guild of thieves. “The guild unitedboth the craftsmen’s cooperatives
and individual workmen of a given trade into a single corporate body’. The
smritikaras recognised their importance in the society because on their la-
bour and skill rested the whole edifice of the society.
The guilds had their own rules and regulations called the srenidharmas
which were binding on their members. The Djgumgsastras recognised th the
valigity ofthe laws and customs establishedape
by the i Manu recom-
mends that Sredidhnionak were also to be counted as a source of customary
law. Manu, Yajnavalkya and Narada invest the customs of the srenis and
other such bodies with legal authority. ee
According to Narada the king should
es
give his approval tothe rules and laws of the guilds.
Among the smritikaras Yajnayalkya was the first to mention specifi-
cally tee popular cours, namely.kula.sreniandpugaarranged in an
ascending order of importance. Bote a a ca ad not
been duly investigated by Auda it could be decided by sreni, when it had
not been examined by sre
sreni, it could be decided by gana and finally by the
royal judges.”” Mention to.these popular,courts.sitsiso,mate byNarada.
He invests these courts with the power to decide law-suits. each
006:Beige. So fo.IePCPs 8 8. It is evident from this the
guilds had their own e) h ione: courts t
settle i ies Sika eer ioeaeles aACCOrGIr —e- pro:
rt a Taye, Spatigeanpler ig ByFoghs Aplin?
The guild had judicial rights over its members. If any one_of their mem
berswereinvolved in. practising fraudhe wasrequired tocleatoff onoa
or ordeal, The and smritis recognised the a
4. See Chapter VI.
 Vill} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 199

the guilds and any breach thereof was met with punishment ranging from
heavy fine or imprisonmentto confiscation and banishment. Brihaspati per-
mits the guild courts to punish the wrong-doers from mild censure and rebuke
to repulsion. “A guild court, like a caste council, could expel ai refractory mem-
ber, a penalty which could venell reclude him from practis I
trade _and 1 . Narada requires that those who caused dis-
sension among the guild members must be inflicted with punishment of the
severest kind, otherwise they would prove extremely dangerous, like an
epidemic, if they were allowed to go free. We learn from the Buddhist literature
of guild courts settling quarrels between members and their wives.
Generally the heads of the guilds visited the offending members with
verbal censure or excommunication and the kingapproved the penalties. The
guild members enjoyed so ivileges. When their own rs were
involved_in di f serious nature the guild came forward and rendered
assistance for_theit_setlement The Anantdkirti
anecdote admirably brings
out judicial procedure followed by these courts, who acted as courts,
held proper hearing, examined the problems at length and finally pronounced
the judgment.*
The state, though recognised the judicial rights of the guilds over its
members, did not forsake its obligation towards them as its citizens. Brihas-
pati requires the king to interfere in cases where the heads of the guilds,
actuated by hatred, tried to injure a single member and restrain and punish
them. The guilds were not allowed to exercise their powers like autocrats
because ultimately they were responsible to the state. There are instances
where the members of the guilds sought state intervention in respect of the
meet of the guild court. members of the guilds to
1 i also the rules and
testa offesizte. Thisiis the "eneof thehae that ‘‘the authority
of the guilds was not derived from the delegation of power from above but
had an independent existence’’.° But they could not exercise their inde-
pendence to settle scores with their adversaries. The security of an individual
from injustice of the guild was thus rested onthe state.

4. Role of the Village Panchayats

There were popular courts in the villages called Village Panchayats
were invested with judicial powers. Kautilya says that the village

_ 5. D.C. Ryder, p. 180.

6. Encyclopaedia of Social Sciences, Vi\-VMl, p. 217.
200 HISTORY FOR LAW STUDENTS |CHAP.

court was presided over by the gramavriddha. The popular village court |
played a prominent part almost throughout the long course of Indian history. |
The Agni Purana compares the administrative set-up of the village with |
the working of the body organism. The five senses of the body are compared |
to five house-holders of the village council. The soul is compared to the|
mahattara (chief) of the village. The head of the village with the advice of
the five councillors who strove for the successful working of the body-politic
of the village. Bana makes a similar comparison between the panchendriyas
(five senses) of the body and the panchakuta of the village.
The village panchayats performed judicial functions. These popular
courts settled disputes among the inhabitants of the village. Governments in
ancient India encouraged these popular courts to enforce their decisions.
Though they were essentially non-official and popular, they had the royal
authority behind them. Yajnavalkya describes these village courts as sane-
tioned by the king. The government has been advised to execute their decrees
because the state had delegated these powers to them. The judicial procedure
of these courts was similar to the royal courts with some necessary modi-
fication. In civil matters, there was no limit to their jurisdiction. They, how-
ever, did not deal with criminal cases of a serious nature. Nevertheless cases
like accidental homicide, suicide, etc., were disposed of by them. The Art-
hasastra invests gramaviriddha with the power to punish thieves and adul-
terers.’ The Chola inscriptions give a graphic description of the village
assemblies which were completely autonomous and characterised by demo-
cratic principles.®

initiation of the Procedures

Ordinarily procedure of accusation followed. A x. firstfi
before the registratiof officer containing particulars of the claim, the aa
and the place, the nature of the offence, etc. It was recorded by the officer
of the court called Lekhaka or writer. The plaintiff was at liberty toalt
his plaint wen it was defective and redundant till the defendant had tendered
hiS-answer.
When the judge found that the matter was legally entertainable,
he delivered a sealed order to the plaintiff or ordered the bailiff to summon
the defendant. Yajnavalkya makes provision_for_writing
down the plaint
when the plaintiff prefers the complaint first and again in the of
the dependent, In any discrepancy between the ;euieemices aaa
fatal to the cause. “This provision is very important as the plaintiff has to

7. Sukla Das, op. cit., 108-110.

8. See Local Administration in Chapter III.
Vill} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 201
4
prove his case, first, prima facie, and the plaint on examination discloses
defects then the process to the case cannot be issued. Thus great precaution
is taken by Hindu jurists so that an unscrupulous complaint may not harass
the innocent peop e.” The smritikaras say that plaint which contained an
imaginary grievance, disclosed_no injury contained letters or words making
no coherent sense or contradictory statement, wanting in propriety and vague
should be rejected. According to Brihaspati ‘a nizgsthaka plaint where injury
or monetary value was negligible should be rejected’.
A clause in valle requires that a law suit between teacher and
pupil, husband and wife an master and servant should not be entertained.
In case com same time, according to Manu,
preference must be given on the basis of the Varna of the plaintiff. A rational
Katyayana, on the other hand, recommends that priority should be given to
a plaint where the injury was greater or cause_more important requiring
a attention. There is also a clause in the Dharmasastra permitting
the plaintiff to prefer an appeal to king to ‘put the accused under arrest (asedha)
or restrain his free movements until the summons had been issued.’ However,
under special circumstances second summons were allowed to be sent.
The legally maintainable plaint was read and recorded in the presence
of the defendant. Then the defendant|
asked
was asked by the
the judge
judge to
tofile_
file his
reply (uttara or yada). The Dharmasastras require that in urgent and im-
portant cases, as also in criminal cases the defendant had to file his reply
immediately. According Manu,
to ‘in disputes relating to sahasa, theft,
abuse, assault, cows, charges
‘ees of gr
grave sins and women, the defendant has
to make his defence at once, and that in other cases time may be granted
at the discretion of the court. Adjournment ranged from one day to one year
or more. Katyayana does not favour adjournment, for, he feels, that it ham-
pers the normal conse ofadicial pocediae andcreates complications. But
this facility is denied to the plaintiff. Kautilya, in particular, was opposed
to this. To quote Kautilya, ‘If the plaintiff, to whom a reply has been given
(by the defendant) does not counter/reply on the same day, he shall lose the
suit. For it is the plaintiff, who has decided (beforehand) what is to be done,
not the defendant’.
What prompted the Hindu jurists to frame elaborate rules regarding the
characteristics of a good defence, the defects in justification for rejection of
defence, the way in which the defendant was to present his reply was to
avoid injustice to the parties to the dispute. The defendant’s reply was re-

9. S.D. Sharma, op. cit., p. 206.

202 HISTORY FOR LAW STUDENTS [CHAP.

quired to meet all the points raised in the plaint without deviating from truth,
not to employ vague words, not to be self-contradictory and not be such as
needing further explanation.'° According to_Brihaspati, the reply should be
‘in writing, should exactly correspond to the contents of the plaint and should
be clear, precise and should be free from absurdity or ambiguity’.
Replies of the defendant were generally of four types: Mithya (denial),
——

Sampratipatti or Satya (confession_or admission), Karana Pratyavasakan-

dana (a Special plea afdemume) and Prannyaya or Purvanirnaya (refer-
i
ence to a previous verdict). fact acne Mig & Kay wt nti WH
In reply, the defence was not to mix up any two or more of the types
described above. Vyavahara Matrika quotes, however, a text, Vradhasat-
atapa which admits reply partly of one type or another and adds two more
to the already mentioned four types, namely, samshista or mixed and vi-
partiti or contradiction of facts. The Dharmasastras and their commentaries
deal and illustrate at length on the defects in reply which demonstrate how
the procedural law was very advanced and rules of pleadings were based
on sound principles of jurisprudence which compare favourably with the
modern principles of pleadings.!!

6. The Trial
The trial of the case began with the submission of the reply, in writing,
by the defendant. It was now left to the judge, who heard had both the
plaintiff and defendant to determine_on which of the party lies the respon-
sibility of adducing the burden of proof. The rules regarding the burden of
proof are laid down in a comprehensive manner by the Hindu jurists. Gener-
ally, in the event of denial the burd roof_is e plaintiff, in_cases
of protest or special plea or reference to former judgment the defendant had
to commence the act of proving (Kriya). In the event of the evidence being
equally strong with the parties to the dispute and only the laws and customs
being divided, Brihaspati recommends mutual reconciliation between the
concerned parties through royal order.
are recommends that soon after the defandant’s answer, the
plaintiff should depose as to the pratijnata and prove the case. The pratijna,
according tq_Narada, ‘is the gist of law suit. If he fails in it, theplata
loses his case, if he goes across it, he reaches his object’. Manu is of the
View that “being asked, only when the defendant denies, the claimant shall
prove his case oy at least three witnesses before the king and Brahmanas’.
ee

10. N.S. Sen Gupta, Evolution of Ancient Indian Law, p. 58.

11. S.D. Sharma op. cit., p. 206.
 AAV iat TWH ay z ‘
VIIt} ADMINISTRATION OF JUSTICE. IN ANCIENT INDIA Wo 203
P
These attest to ‘the development of the adjective law’ and show that ‘the
administration of justice in ancient India attracted the full attention of jurists’.
It was not a ready-made justice, but it was, in all respects justice according
©

to law and in consonance with the principles of jurisprudence and socepee

social norms, and every point in the case was subjected to close scrutiny.!?
Mode
of proof are divided into two classes, human and divine iyo
Human
eee
evidence was of three types, documents (lekhya), possession (bhukti)
———

and witnesses (saksi). Divine proof consisted

isisted of
of ordeals. Ordeals were re-
sortedto only when ‘the ordinary method of proofOf was
wasnot feasible’. Incase.
of difference of opinion among the parties to the dispute, Lé., one “preferring ~
human evidence and the other divine, Katyayana requires the king to accept
the former. The ordinary procedure in trial was by evidence, while in extra-
ordinary cases recourse was taken to divine evidence.!?
There are instances of circumstantial evidence, particularly in the ab-
sence of human evidence, being considered in the trial of cases. The classic
example is presented to us in Sudraka’s Mricchakatika. ‘“The allegations
are that Vasantasena, a prostitute, is murdered by a merchant Carudatta.
Evidence is taken and on the basis of circumstantial evidence Carudatta is
found guilty for having murdered Vasantasena. But the fact is that Carudatta
is innocent and he knows nothing about the murder of Vasantasena. On the
other hand, Sakara, who is the brother-in-law of the king, had brutall:, as-
saulted Vasantasena, and considering her to be dead, covered her body with
leaves. Now Sakara, who has enmity with Carudatta, because Vasantasena
loved the latter in preference to the former, lodged a complaint against Ca-
rudatta.... Carudutta is found guilty by the judge... and is sentenced to
death...
When Sakara was giving his version of the story of the murder, he
accidentally said ‘Vasantasena was murdered but not by me’, the judge at
once asks the clerk to note it down as a very important piece of evidence.
When Sakara became conscious of his lapse he tries to wipe out the writing
and a scuffle on this count between Sakara and Vidusaka takes place in
which some ornaments belonging to Vasantasena, dropped down from the
person of Vidusaka, who was a friend of Carudatta. On identification of the
ornaments it became very strong evidence against Carudatta, because one
of the allegations was that murder was caused for the ornaments. But the
fact was that Vasantasena herself had given the ornaments in question as a
present to Carudatta’s son, Rohasena. Carudatta had given it to Vidusaka,

12. S.D. Sharma op. cit., p. 209.

13. For details of the mode of proofs see Chapter VII.
 204 HISTORY FOR LAW STUDENTS [CHAP.

his friend, in order to return it to her. Vidusaka, while carrying the ornaments
comes to know about the trial of Carudatta and he came to the courtroom
where he had a scuffle with Sakara and the ornaments fell to the ground in
the court.
Another important circumstantial evidence against Carudatta was the
presence of the dead body of a woman, who had died by the fall of a tree
and whose body was torn to pieces by wild beasts, therefore, no identification
could take place and it was taken to be the body of Vasantasena. In this
way all the circumstances went against the accused, Carudatta.’’’*
The trial discloses certain weaknesses. In the first place, though Dhar-
masastras explicitly prohibit the capital punishment for a brahmana, this
rule was not applied in the case of Carudatta, a brahmana. Secondly, ac-
cording to Manu, the king or his officers could not initiate litigation and
only the affected could complain to the king. Even this prohibition was not
heeded, as Sakara was the brother-in-law of the king and was inimical to
Carudatta. It was he who initiated the case. The judge took up the trial to
secure his own position which was threatened. And finally, Carudata’s prayer
for trial by ordeal was refused by the judge. It was a command performance
and also demonstrates how it was not always safe to rely on circumstantial
evidence alone. Carudatta was saved by the physical appearance of Vasan-
tasena. The trial further shows that from the beginning to the end, the rules
of the Dharmasastras were observed only in breaches and the king or his
officers could influence the judges.
5) _The trial involved the examination of documents, title, possession and
ay evidence tendered by the witnesses. The Hindu jurists did not give any scope
for ambiguity in respect of human proof. They have defined what is
\ | eee have classified them_and brought out_their utmost utility. They
Ay were also aware of spurious documents and have not only severely criticised
this practice but have also prescribed punishment for such offences. Similarly
the title of possession has come in for a detailed treatment. Title in respect
of movable and immovable property. legitimate proprietary right, the dura-
tion of occupation which entitles right to possession have all been discussed
with meticulous details. It must be admitted that our law-givers have ensured
adequate protection in case of possession to avoid unnecessary harassment.
They have shown equal concern for minors, idiots and women, so that they
were not unduly cheated. They have not forgotten to preserve the right of
a man who was not present.!> The last of the human evidence was witnesses
14. Quoted from $.D. Sharma, op. cit., pp 224-26.
15. For details see Chapter VII.
 VI} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 205

and our jurists have given an elaborate list of those who were ineligible and
eligible for deposition.

7. Witnesses >)
(} al
A witness is defined by Narada as one who has himself seen or heard
or-experienced the matter in dispute. Medhatithi defines hearsay evidence
as indirect evidence which is not legal and is inadmissible. Witnesses_fall
into two_groups, appointed and unappointed witnesses. Appointed witnesses
are further divided into five types pasere sm eh one who has
been reminded, a causal witness a secret witness and an indirect witness.
The unappointed witnesses included the co-villagers, a judge, a king, one
acquainted with the affairs of the two parties, one deputed by the claimant
and members of the family particularly in family disputes.
There is no unanimity amon e jurists
nesses to be produced in a given case and the figure varies from nine to
two. Though our-lawgivers do not a a single witness, all seem to_agree
that the number is not as important as the overall character and conduct of
the witnesses. In other words, one witness_of
good character is better than
twelve bad characters. Some jurists say that a single witness would be more
than adequate in serious and heinous offences. A_brahmana who is learned
and is of extraordinary religious merit could be a trustworthy witness if
considered as such by both the parties involved. Manu declares that ‘one_or
two brahmanas were sufficient witnesses to a case instead of twelve, seven
or nine ordi men’. These show that ‘in Hindu jurisprudence the number
of witnesses is not insisted upon, and what is required is the quality and not
the quantity, which speaks of a high mark in the development of legal system
in ancient India’. bus noagtrs 4 6
Qualifications for witnesses have also been prescribed. According to
- Yajnavalkya a witness ‘should be_religious, generous, descended from a tha
Ft
respectable family, speakers of truth, eminent invirtue, fair having sons and ep
wealthy’. Manu has laid down elaborate rules in this respect. ‘‘Householders, oli
men with male issue and indigenous kshatriyas, vaisyas, or sudras are com- lj!
petent when called by a suitor to give evidence, not any persons whatever Le
(their condition may be) except in cases of urgency. Trustworthy men of all
buy’
the (four) varnas may be made witnesses in law suits, (men) who know
(their) whole duty, and are free from covetousness; but let him reject those
(of an) opposite (character). Those must not be made (witnesses) who have
an interest in the suit, nor familiar (friends) companions, and enemies (of
the parties), nor (men) formerly convicted (of perjury), nor (persons) suffer-
ing under (severe) illness, nor (those) tainted (by mortal sin). A virtuous
 206 HISTORY FOR LAW STUDENTS [CHAP.

witness was preferred to a deceitful man. Female witnesses were preferred

for disputes between women,
-™ “The legal writers have also given a list of inadmissible witnesses. (anu)
declares, ‘the king cannot be made a witness, nor mechanics and actors, nor
a srotriya, nor a student of the Veda, nor an (ascetic) who had given_up
all connection (with the world), nor one wholly dependent, nor one of bad
fame, nor a dasyu, nor one who follows forbidden occupations, nor an aged
(man), nor an infant, nor one (man alone), nor a man of the lowest castes,
nor one deficient in organs of sense, nor one extremely grieved, nor one
intoxicated, nor a bad man, nor one tormented by hunger or thirst, nor one
oppressed by fatigue,.nor one tormented by desire, nor a wrothful, nor a
thief’. To this gy} adds ‘a wife’s brother, a dependent, a creditor, a
debtor, an enemy, a cripple, a convicted person, a village servant, a leper
and wounded man, an outcaste, a candala, a blind, deaf, dumb, or self-invited
person, a woman and a king’s officer shall not be cited as witnesses’. Ac-
cording to Katyayanay ‘the sudras could only appear as witnesses for the
sudras and thaf"a litigant of lower caste enh not establish his case by
evidence of witnesses of higher caste’.
The incompetency of the witness could be made out by the opposite
party by citing the grounds. But he was not permitted to question his ad-
missibility after he began to depose. To mark the seriousness of the occasion
and to make the witness to understand his responsibility before his deposi-
tion, Kautilya wants him to put off his turban, raise his right hand and after
touching gold, cow-dung or durbha grass and then to depose the truth. These
statements of the legal writers and the writers on statecraft show how these
thinkers were zealous in maintaining the sanctity and spirit of the adminis-
tration of justice.!16
Cases were decided by eye-witness, inference and analogy. One curious
feature of the administration of justice in ancient India was to get at the
facts of the case by means of official secret agents appointed for the purpose.
In the absence of the witnesses, the special police officers found out the
innocence or gilt of a person without trial. There is no provision in ancient
legal literature for the cross-examination of witnesses.

8. Pleaders
Modern writers on ancient Indian statecraft are not unanimous regarding
the figuring-of-preaders_in the judicial system. in this respect two points
16. For details see Chapter VIII.
 Vill) ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 207

deserve consideration. The legal texts permit the defendants to send their
chosen representatives when personal attendance was not mandatory. In
Chapter VIII (verse 169). Manu ‘points out how the witnesses, the sureties
and the judge labour for others and how vipra (brahmana), the creditor, the
merchant and the king profit in the transaction’. Some writers take these as
positive proofs to the existence of pleaders. A.S. Altekar feels that ‘the possi-
bility of the vipra being a member of the jury (sabhya), who might have
received an allowance’ cannot be ruled out.'’ A clinching evidence to the
existence of pleaders occurs in Asahaya’s commentary upon Narada
Smriti. Here a lawyer pleads for a party for a fee. One Smartadurdhana
instigates a party not to pay the debt and undertakes to secure exemption .
from a law court in this respect, if he is paid the fee of a thousand@ oyv®
drammas.'® The practice of appointing pleaders was in vogue in the days) +\«
of Sukra. A party to the dis end personally owing
to ‘his other preoccupations or ignorance of law’ could appoint recognised
agents in the law courts to defend his case. Such agents were known as
Niyogins and they were expected to protect the interests of the parties they nin
represented. They were punished by the state in case they colluded with the an
other party. They were entitled to a fee ranging from 6% to 1/2% depending {z« ,
upon the value of the property; ‘the larger the corpus of the property, the ied
smaller was the percentage of fee’. With the inclusion of customary law as p
an important source and the importance that was given to circumstantial
evidence made the law and judicial procedure more complex and intricate
which the litigants found it more and more difficult to comprehend. Around
500 AD, the parties to the disputes were, perhaps, compelled. to turn to
learned scholars, Versed in the Smritis to represent their cases. How fre-
quently the assistance of the experts in law was sought'is, of course, difficult_
to say. Also, whether there was a regular class of persons in ancient India,
Whee profession and status were the same as those of the modern lawyers
and whose members were licensed by the state to follow the profession, we
are not in a position to say definitely. It is, however, true that a class of
experts in law were there to help those who desired to represent them.

9. Secret Agents
The elaborate intelligence system of the Arthasastra, which is indeed
one of its distinguishing features, is fundamental to the foreign and domestic
policy of Kautilya. Some regard the espionage system or the secret agents

17. State and Government in Ancient India, p. 258.

18. Quoted from State and Government in Ancient India, pp. 258.59.
208 HISTORY FOR LAW STUDENTS [CHAP.

as the least pleasant feature of political life in ancient India. Two chapters
are devoted to give the most detailed picture of the working of the system.
Kautilya visualies a country riddled from top to bottom with spies.
Spies or secret agents were employed to detect criminals whether in the
service of the state or among the people. They were to ascertain the fair or
foul dealings of villagers or of the superintendents of villagers, and report
the matter to the higher authorities. ‘‘If any person is found to be of foul
life (gudhajuvi), a spy who is acquainted with similar avocation shall be let
loose upon him. In acquiring friendship with the suspected person who may
be either a judge or a commissioner, the spy may request him that the mis-
fortune in which a friend of the spy is involved may be warded off, and
that a certain amount of money may be accepted. If the judge accedes to
the request, he shall be proclaimed as the receiver of bribes, and banished.
The same rule shall apply to the commissioners’. !? Those who exhorted
money from the people were similarly treated. The spies also detected the
false witnesses. ‘Under the pretence of having been charged with criminal
offence, a spy may, with promise of large sums of money, begin to deal
with false witnesses. If they agree with him, they shall be proclaimed as
false witnesses, and banished’. Similarly, the manufacturers of counterfeit
coins, those who were engaged in witchcraft, suspected of administering
poison and those who mixed alloy with gold and lowered its quality were
treated. The Arthasastra says ‘‘there are thirteen kinds of criminals who,
secretly attempting to live by foul means, destroy the peace of the country.
They shall be either banished or made to pay an adequate compensation
according as their guilt is light or serious’’.7°
As a detective, it was the duty of the spy to seek out sedition, whether
in the brothel or in the palace of the crown prince. He served as the agent
provocateur to test the loyalty of high ministers, generals and judges. He
frequented the taverns, brothels and gambling houses to suppress the crimes.
When in the ordinary course the detection of crimes became difficult, almost
impossible, the help of the intelligent system was sought for the purpose.
Isvara Topa has well said: ‘‘The idea of general espionage is not to molest
and harass the people in general, but through it the solidarity and stability
of the state can be cemented with an amalgam of public affection and con-
tentment.”’ It served as a machinery to guard the interests of law and order
and the interests of the people concerned.

19. R. Shamasastry, op.ct., p. 238.

20. Ibid, p. 239.
VII} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 209

J)
10. Concluding stage of the Judicial Procedure PAG TOR f.
The concluding stage of the judicial procedure was the verdict or_nir-
naya. Now the king or the chief judge had to weigh carefully the evidence
produced before the court and after seeking the interpretation of law by
those versed in law had to decide on the success or the defeat of the plaintiff.
Manu advocates for a parishad of three_to_membe ten rs.fo r
legal interpre-
tation and legislation. According to himat least one of the members. snUsf)
be_ learned. in.each of the three Vedas — Rig, Yajur and Sama. He empha-
sises on the capability rather than the number of legislators in order to ensure
prompt and considered action. The multitude is believed to be inadequately
informed if not sufficiently intelligent to name its own legislative delegates,
the assembly of ten included logicians and the representatives of the first
three social orders as well as Vedic scholars. Although its functions were
properly interpretative service to reconcile the Vedas and their commentaries
with the requirements of a changing society. This parishad was intended to
forestall monarchic despotism and surround the legislative process with in-
vestigation, discussion and promulgation in appropriate form. There were
also assessors (sabhyas) to give their fair and balanced opinion. The kin
or the judge then pronounced the verdict. The verdict was to be pr nced ~ kat
after
aSSembh-anrived-at-unanimous
Thejudicial decision, According to,nm
Sukra: ‘‘In case where there is no document, no possession, no witness and <

no divine proof to prove and substantiate the claim, in such a case king,
being the lord of all, isay ag authority.”’
ed jayapatra, was given to the party which
won the suit. A jayapatra was to contain of the plaint,
(hé-sitmmary the
reply, the evidence and the decision. It was to bear the royal seal, and signed
by thee Pradvivaka and other members of the tribunal. The jayapatra was
to be_preserved safely so that it would be produced or
referred to. No jayapatra has come down to us. Jolly has however published
the first jayapatra written in ancient Javanese. It pertains to a dispute of
Saka 849 (928 A.D) which failed for want of appearance by the plaintiff at
the trial. Four witnesses have signed at the end. Also at the end, the document
is styled jayaptra.*' Another jayapatra has the following details:
Tularam Sarman with Cosharers Plaintiff
VS.
Maninatha Sarman Defendant?

21. Quoted in D.S. Sharma, op. cit., p. 239; cf Calcutta Weekly Notes, pp. CXLII-III.
22. Epochs in Hindu Legal History, p. 282.
210 HISTORY FOR LAW STUDENTS {(CHAP.

Estimating the significance of the above Darbhanga jayapatra U.C. Sar-

kar remarks, ‘‘this is a unique document throwing an inexhaustible flood of
light on the working of the Hindu Law of the original texts and the com-
mentaries.’’?? Continuing he writes: ‘‘The jayapatra is a typical Sanskrit
judgment, complete, comprehensive, fully in consonance with the provisions
of Hindu Law and wholly preserved in its content.’’*? As S. Vardachariar,
Judge of Federal Court of India admirably puts it: ‘‘No unbiased student of
the smriti literature can assert that the system whose beginning and devel-
opment are traceable from stage to stage was wholly imaginary and idle.
The rules laid down are so detailed and practical and their development is
so natural that they must have been the result of actual experience in the
daily administration of justice. Why should they all have indulged in the
pastime of writing about a system of judicial administration which never
existed? The jayapatras of Darbhanga and Java referred to by Mr Jayaswal
and Professor Jolly afford proof that the directions contained in the smritis
as to the forms of judgment were in fact being followed.’’~4
Another sanskrit judgment, syenavitjati/dharmanirnaya deals with Var-
nasrama dharma. It indicates that the rules of the texual law as interpreted
by the digest writers and commentators were in actual application. The judg-
ment sets aside the view of Derrett that the king ‘did legislate.... on matters
for which the sastra made provision.’*°
Vijnanesvara speaks of a document called Hinapatra. This was a do-
cument issued to a plaintiff when he lost the case for change of pleading
Or non-appearance or for non-prosecution, stating all the concerned facts.
This was to be preserved for future reference. The judgments were enforced
by the lower officials.

11. Punishments 7 dlr8int > neg leeocipoum

The smritikaras have discussed at length the classification of crimes
€ punishinients to be o1v 26 eee
and the punishments e given.“” Manu prescribes admonition, refroof, a
fine, corporal puni t and banishment. ane were exempted from
capital punishment, but in extreme cases banishment was recommended.
Varna..considerations dominate in Manu in prescribing punishments. For
instance, if a sudra even mentions the names and castes of the twice-born
with contumely, an iron rail, ten fingers long, shall be thrust red-hot into

23. Epochs in Hindu Legal History, p. 284.

24. Hindu Judicial System, pp. 231-32.
25. Religion, Law and the State in India, p. 94 cf $.D. Sharma, op. cit., p. 252.
26. See Chapter VII.
 VU} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 211

his mouth’’. If he amegant

is enough to teach brahmanas their duties, “the
king shall cause hot oil tobe poured intohis. mouth andinto his ears’. In
case of assaults, ‘with whatever limb a man of the lower caste injures a
man of three higher castes, even that limb shall be cut off’’. If a brahmana
killed a sudra, it amounted to killing a frog or a dog, a sin of which he
could get rid off by mere penance.
autilyais in eneralilaagreement with Manu except in two respects. He
brings in brahmana within the scope of capital punishment by providing him
the death penalty by drowning if he isguilty of high treason. He is es
severe on the lower castes. Ascetics and atheists were merely fined. Since
gambling was recognised by the state, they were penalised only when they
played in places other than fixed by the state. The superintendent appointed
for the purpose laid down the regulations.
A severe type of imprisonment prescribed by Kautilya is forced labour
in state mines ciate THT Gndcucly other concerns of the state. If a person
who is injured as a result of quarrel within seven days of the occurrence, it
was treated as murder and death penalty was inflicted. For spreading false.
rumours, house-breaking and stealing war animals of the king (elephants
and horses) hanging was the penalty. “Any person who aims at the kingdom,
who forces cnEINCE THIS theKing’s harem, who instigates wild tribes or
enemies (against the king), or who created disaffection in forts, country parts,
or in the army, shall be burnt alive from head to foot’. One murdered
who
the father, mother, son an_ascetic was alive. ‘“‘Any woman
who-mtjurders hei
her husband, preceptor, or offspring, sets fire to another’s
property, poisons a man or cuts offany of the bodi
be atl no matter whether or not she is big with a child, or
has ot passed a month Siar Giving Bin Oo STE” Cle pags basa
the dam deliberately isto be drowned inthe same.dam. Those who insult
the king betray his council, make evil attempts against the king have their
tongues cut off. When a man other than a soldier stole weapons or armour
he must be shot to death with arrows; if he was s soldier, he had to pay the
highest amercement. Kautilya is comparatively lenient towards the sexual
crimes. After describing some of the many forms of execution Kautilya says,
‘‘such painful punishments as the above have been laid down in the sastras
of great sages; but it has been declared as just to put to simple death those
_ offenders who have not been cruel’’.
The criminal code in the Arthasastra is rather severe and it has been
characterised as ‘an eye for an eye and a tooth for a tooth’. rson who
ld is bes mots, toa isha TOR
cut off ‘if h e_bites_any limb of these persons, he shall be deprived of the
correspondi b’’. Asoka tempered justice with kindness by introducing
many reforms in judicial administration and procedure. He enjoined on the
212 HISTORY FOR LAW STUDENTS {CHAP.

mahamatras, the city judiciaries, to avoid causeless imprisonment and ha-

rassment of the town people. In addition, he ordered that a respite of three
days was to be given to those condemned to death so that his relatives might
use the interval to petition for mercy to the local authorities or enable the
convicts to prepare spiritually for death by giving alms or observing faste.
Judicial torture. was.used to extort confessions. Kautilya speaks of ‘four
kinds of. torture (Karma); six punishments (shatdandah), seven kinds of
whipping (kasa), two kinds of suspension from above (upari nibandhan),
and water tube (udakanalika cha)’. The principle laid down was ‘that those
guilts believed to be the true shall be subjected to torture’.
In civil cases, the Hindu Law as embodied in the sastras was admin-
istered. Manu has also dealt elaborately with civil law and has certain in-
teresting observations to make on debt, property, agreements, inheritance etc.
Kautilya shows a general repulsion against the savage punishments laid
down in theory and an attempt to modify them in practice. Manu thought
punishment both retributive and deterrent. Therefore he wants the king ‘hav-
ing fully ascertained and having due regard to the motive, the place of oc-
currence, the ability of the offender to suffer the penalty, and nature of the
crime, should impose the penalty which the accused deserves. Let him (king)
punish (offenders) first by gentle admonition, afterwards by harsh rebuke,
thirdly by fine and after that by corporal punishment. Unjust punishment
destroys reputation among men and fame (after death), and causes even in
the next world the loss of heaven; let him, therefore, beware of inflicting it.’
In a word, ancient Indian jurisprudence was ‘much advanced in the field
of administration of justice’. This advancement is particularly seen in the
policy of regulating punishments. The very theory of inflicting punishments
to various categories of civil and criminal offences brings out its high sense
of justice.

12. The Role of the Judges

‘If law under Kautilya was harsh in the case of the law-breakers, it was
equally uncompromising in the case of those, who administered it.’ The
legaltexts set a very high standard forjudges. They were tO
learned,
be
religious, ‘devoid of anger, andas impartial as humanly possible. The Art-
hasastra says that ‘Judges shall thus settle disputes free from all kinds of
circumvention, with mind unchanged in all moods or circumstances, pleasing
and affable..to_all.’ Kautilya discusses at length the conduct of the judges
and prescribes punishment for dereliction of duty. ‘‘When a judge threatens,
browbeats, sends out, or unjustly silences any one of the disputants in his
Vill} ADMINISTRATION OF JUSTICE IN ANCIENT INDIA 213

court, he shall first of all be punished with the first amercement. If he de-
fames or abuses any one of them, the punishment shall be doubled. If he
does not ask what ought to be asked or asks what ought not to be asked,
leaves out what he himself has asked, or teaches, reminds, or provides any
one with previous statement, he shall be punished with the middle most
amercement’’.’ If the judge made inquiries into unnecessary but not necess-
ary circumstances, made unnecessary delay in discharging his duty, post-
poned work with spite, caused parties to leave the court by tiring them with
delay, evaded or caused to evade, helped witness, gave them clues or re-
sumed cases already disposed of, was to be punished with highest amerce-
ment. In case he repeated the offence he was punished with double the above
fine and dismissed.(If. a judge imposed an unjust corporal punishment he
was either condemned |to the same punishment or made topay twice the
amount of ransom f_injustice. Ifa judge falsified
whatever was a true amount or declared as true whatever amount was false
he was fined eight times of that amount.78
The judicial corruption is often referred to and to prevent bribery private
interviews between the judges and litigants until the cases were settled were
prohibited. Kauti lya was for testing the loyalty of the judges periodically by
secret agents. smriti, on the other hand, prescribes. banishment_and
forfeiture of all property for a_judge f
found1 guilty of corruption or injustice.
These regulations do point to. corruption prevalent inin the judiciary. The law-
givers suggested necessary measures to control trol judiciary by bringing it
within the ambit of the ‘Rule of Law’.
An ideal judge was to possess independence of character, great learning
in various. branches Of
law and impartiality. He must be sagacious eloquent,
and dispassionate. He was to pronounce judgment only after due deliberation
and enquiry. He was to be the guardian of the weak, a terror to the wicked;
his heart was to covet nothing, his mind was to be intent on nothing but
equity and truth and he was to keep also from the anger of the king (Mric-
chakatika).>
The judges were not above board. The Dasakumaracarita records the
case of a judge accepting bribe. The trial of Carudatta as narrated in the
Mricchakatika shows how the judge, with a view to secure his position,
acted contrary to law. Cases like these were few and far between. By and
large, the judges by their thorough knowledge of law and high character,

27. R. Shamasastry, op. cit., p. 252.

28. Ibid, pp. 252-53.
29. History of Dharmasastras, Vol. lll, pp. 258 ff.
214 HISTORY FOR LAW STUDENTS

by their impartiality and dispassionate judgment were successful in main-

taining the independence of the judiciary from the executive.
That the ancient Indians had a high sense of justice becomes evident
from the establishment of gradation of courts, from the village to the capital
of the state, the classification of courts into civil and criminal and the for-
mation of rules for judicial procedure which consisted of four stages. The
trial of the case depended on the burden of proof, both human and divine,
and when the human proofs failed they took recourse to ordeals, which were
barbarous and horribly superstitious. The only saving grace is that they were
rarely employed and remained in the law books to serve as a deterrent. The
employment of spies or secret agents to detect crimes and to oversee the
character of the custodians of law is, indeed, a significant feature of the
judicial administration in ancient India. Similarly, in inflicting punishment
they had to ascertain fully the motive, the time and the place of the offence
and take into consideration the nature of the crime as well as the ability of
the criminaLto suffer, yet another marked feature of ancient judicial admin-
istration. When Law became complex in the course of its growth and could
not be easily comprehended by the parties to the dispute the law-givers came
up with the proviso of allowing litigants to employ experts who were entitled
to a share of the money involved. P.V. Kane quotes a source which grants
to any learned brahamana the right to give his views on a case from the
body of the court.’’??. Though it is doubtful whether they constituted a class
of professional pleaders. There is evidence to suggest that towards the end
of ancient period, a class of lawyers, in modern sense, was beginning to
develop.*° In short, the ancient Indian state was oblivious of its essential
duty, dusta nigraha and sista paripalana.

30. A.L. Basham op. cit., p. 117.

 Chapter IX

Medieval India
Dre division of history into ancient, medieval and modern period
gained currency in the 17th century. This was done for a purpose, the
accomplishment of the purpose is their only justification. Generally, the
purpose is to facilitate our dealings with unique and changing events. We
have to use these divisions since we need to havé organising ideas and
classificatory generalisations, otherwise history would simply be a
disordered flood of undifferentiated information. Hence the importance
of periodisation in history.
Human history unfolds before us the saga of man’s innate urge first
to satisfy his curiosity and then to aspire for greater meterial comforts.
The discovery of agriculture made settled life possible and he was set on
the path of civilisation and progress. One discovery led to another and
man attained greater heights both materially and spiritually in ancient
period. The medieval period is marked by geographical discoveries
ai iowsth cultu cultural and commercial i intercourse between continents

mae” in science and technology marked the dawn of the ated age,
which also brought clearly the differencés between the technologically
advanced societies or developed societies and stagnant societies or
underdeveloped societies.
It is evident from what has been said above that the unique and
changing events determine the periodisation in history. Applied this
principle to Indian situation ancient period ends the
in middle of the ruleof _
thent a around fi fifth,century AD. yielding place tto medieval oom

volonikadiOn ushering in new and liberal ideas. Into this natural division or
periodisation of Indian history James Mill infected the communal venom
by attempting to write the history of the Hindu and Muslim periods of
Indian history instead of ancient and medieval periods, the British rule
constituting the modern period or marking the dawn of modern age
in Indian history. Though Mill’s scheme was strongly condemned
as a sinister move to drive a wedge between the Hindus and the
Muslims, it did serve asa powerful influence
in the writing of Indian
history in the subsequent period. The beginning of medieval age with the

[215]
216 HISTORY FOR LAW STUDENTS [CHAP.

commencement of the rule of the Turko-Afghans from 1206 A.D. has now
become a commonplace in the text books on Indian history. The same di-
vision is adopted here to facilitate the study of Muslim law and jurisprudence
and the judicial administration under the Sultans of Delhi and Mughals in
a better perspective.

1. The Rule of the Turko-Afghans and Mughals

The year 1206 A.D. constitutes an important landmark in the history of
India. It was in that year Qutub-ud-Din Aibak laid the foundations of the
Delhi Sultanate which ruled over three centuries. The throne of the Delhi
Sultanate was shared by four dynasties in succession, the first dynasty or
the Aibak dynasty called the Slave Dynasty, which is a misnomer (1206-
1290), the Khaljis (1290-1320), the Tughlugs (1320-1413) and the Sayyids
and Lodis (1413-1526). The first three dynasties were of Turkish origin
while the last, that of the Afghans. The first two dynasties were able to
establish the sovereignty of the Delhi Sultanate over the whole of northern
India. Ala-ud-din Khalji and his trusted general, Malik Naib Kafur, invaded
the Deccan and the far south more than once, but these invasions had the
intentions of looting the wealth and not to establish their sovereignty over
the Deccan and South India. The first attempt at the establishment of sover-
eignty was made by Muhammad-bin-Tughluq who victoriously marched
down to the southernmost part of India which he constituted as a province
under his governor. This arrangement did not last long. It broke up around
1325 A.D. and before the completion of another decade, there was no Turk-
ish empire in India. On its ruins arose the Bahamani Kingdom in the Deccan
and Vijayanagara in South India.
The rule of the Sayyids was preceded by the invasion of Timur which
inflicted ‘on India more misery than had ever been inflicted by any conqueror
in a Single invasion’. They had to repair the damage first before consolidating
their rule. The consolidation of their rule became daunting in the face of
repeated insurrections and treachery of the ministers. The Lodis had, by
now, immensely increased their power and Buhlul, the Amir of Sirhind, who
was waiting in the wings, seized power and established himself on the throne
of Delhi in 1451 A.D. Now the power was transferred from the Sayyids to
the Lodis.
The Lodi dynasty comprised of three rulers, Buhlul, Sikandar Shah and
Ibrahim Lodi. Sikandar reunited the kingdom, made the noble show due
respect and regard to the throne and ushered in an era of peace and pros-
perity. He was a patron of literature and learning. ‘‘A happy result of the
cultural activity of the period was the mutual interest it aroused among
LX} MEDIEVAL INDIA 217

Hindus and Muslims for each other’s learning, thus conducing to a rappro-
chement which was in consonance with the progressive spirit of the time’’.
This trend was not to continue for long. His successor, Ibrahim Lodi was
‘rash and impolitic in his actions’. By his tyrannical behaviour he en-
countered the opposition of the nobles ‘who began to contemplate drastic
measures for their own safety’. In that surcharged atmosphere of mutual
suspicion and jealously Daulat Khan Lodi, governor of the Punjab, invited
Babur to invade India. Babur, who was anxious to get a foothold in India,
welcomed this opportunity, defeated Ibrahim Lodi in the battle that was
fought at Panipat (1526) and laid the foundations of the Mughal rule.
The rule of the Mughals, extending for over three centuries with an
interruption of about eighteen years when Sher Shah of the Sur dynasty
seized power and Humayun, the Mughal emperor, had to remain in exile
(1538-56), constitutes ‘the brightest chapter in the history of Muslim rule in
India’. It falls into two phases. The first phase (1526-1707), called appro-
priately the period of the Great Mughals, saw the Mughals gradually estab-
lishing their authority over nearly the whole of India. During this phase there
were rulers like Babur (1526-30), Humayun (1530-56), Akbar the Great
(1556-1605), Jahangir (1605-27), Shah Jahan (1627-1658) and Aurangzeb
(1658-1707), who distinguished themselves in one field of activity or the
other. The most illustrious was undoubtedly Akbar, who alone has been
acclaimed the Great among the rulers of medieval India. Ishwari Prasad
regards him as ‘‘one of the most remarkable kings, not only in the history
of India but of the whole world. A comparison of European monarchs with
Akbar easily establishes the superiority of the latter, both in genius and
achievements’’. Akbar by exhibiting statesmanship and tolerance brought
about the political and administrative unity of India. But Aurangzeb who
lacked foresight caused the decline of the empire. Lane-Poole has rightly
remarked: ‘‘Aurangzeb could easily have become an ‘ornament to the thro-
ne’, had he not spent his dynamic energy and genius in channels destructive
to both himself and the Empire that was his glorious heritage. Indeed, he
set himself in the vain task of becoming ‘Alamgir’ or “World grasper,’ and
was content to be ‘Zinda Pir’ or living saint to his orthodox Muslim con-
temporaries.... His glory is for himself alone.... To his great empire his
devoted zeal was an unmitigated curse.’’ During this phase, the rule of the
Mughals ‘is distinguished by the establishment of a stable government with
an efficient system of administration, a very high development of architec-
ture and paintings and, above all, wealth and splendour such as no other
Islamic State in any part of the world may boast of’.
218 HISTORY FOR LAW STUDENTS [CHAP.

The Mughal Empire lingered on from 1707 A.D., but was a mere sha-
dow of the former. Misfortune after misfortune fell on the empire. During
the reign of Mohammad Shah (1719-48) nicknamed Rangila, for his licen-
tious character, the subas of Hyderabad, Oudh and Bengal became virtually
independent, he lost his hold on Rajasthan, Gujarat, Malwa and a part of
Bundelkhand fell into the hands of the Marathas and Nadir Shah successfully
attacked Delhi and returned to Persia with a rich booty which included the
Peacock-throne of the Mughal emperor and the famous Kohinur diamond.
Afghanistan, Kashmir, West Punjab, and Sindh were annexed to the Persian
empire. The final disintegration of the Mughal empire began rather rapidly.
The last of the Mughal emperors, Bahadur Shah II (1838-58), was a mere
figurehead. During the revolt of 1857, the rebels bursting into the palace
proclaimed him once more Mughal Emperor of India. With the failure of
the revolt, Bahadur Shah II was sent to Calcutta as a state prisoner and later
on kept in inglorious confinement at Rangoon where he died in 1862 at the
ripe old age of eighty-seven. His arrest in 1858 signalled the end of the
Mughal dynasty.

2. The Government Set-up

The Turks who came and settled down in India possessed the knowledge
of the working of political institutions of land which they had to govern.
They lived in military camps, had to spend most of their energy and time
to subdue the rulers of the land who were out to dislodge them from their
possession and could think of nothing else than to defend and extend their
authority over larger areas. Even the rulers in their sphere of influence
allowed them no peace and instances are not wanting to show how they
were compelled to use force to collect taxes. In such prevailing environment
the Turks found it impossible to undertake full responsibility for government
and much less to orient it to approximate to their ideals. India though a vast
country lacked political unity, but her rich cultural tradition remained vibrant
which the Turks could either suppress or assimilate. Indians suffered from
superiority complex, had utter contempt for the foreigners whom they re-
garded low and vulgar and dubbed the Turks mlechchas or unclean. The
attitude of the Indians was one of indifference towards the Turks. In such
a situation the only course open to the Turks was to bid for their time and
in the meanwhile to win over some local people to their side, accept as valid
the existing practises, ‘retain most of the civil servants in office and establish
their direct personal government only at the central and provincial levels by
occupying and strongly garrisoning important forts and towns’. The Turks
were realists and not idealists; they read the prevailing situation well and
IX] MEDIEVAL INDIA 219

established a government with a blend of Islamic political ideas and institu-

tions and the existing Indian structure of polity. In consequence many ele-
ments of the Indian political system with some modifications, when found
necessary, were incorporated into the set-up of their governments. The Lodis
had no time for innovations, But the Mughals introduced fundamental
changes which persisted till the time of Aurangzeb. Described as the Kagaz
Raj (Paper Government), the Mughals introduced the system of carrying on
the affairs of the government through correspondence. Another innovation
of the Mughals was the conduct of the business of the government through
departments. Some elements of Indian political ideas were retained. It is
evident that the set-up of the government during the Muslim rule in India
was responsive to the changing needs of the time.

3. Muslim Political Ideas

Muslim political ideas were derived from Muslim theology and to an
extent, Greek thought. The Greek thinkers ‘provided the ideas which were
put forward as the rational justification for the institutions adopted or de-
veloped by the Muslims’. The Muslim theology had its roots in the Quran,
the traditions of the Prophet and the precedent. The Quran, which has a
divine origin and possesses a sacred character contains injunctions for the
regulation of social life and political organisation. The principles enunciated
in the Quran guided the community and polity. With the spread of Islam
in other continents and with it the growing complexities in life and govern-
ments the injunctions of the Quran were found to be inadequate to meet
the changing situation. This inadequacy was made up by the Muslim ortho-
dox by including the traditions of the Prophet, his sayings and doings, ;as a
supplement to Quran. This tradition has come to be called't is. There
are numerous instancesof the Ulema (learned theologians) settling vexed
problems by giving ruling on the basis of both the Quran and the Hadis.
The rulings also have acquired the status of law. The Shariat or the law of
Islam has defined certain functions and responsibilities which the Muslims
as an organised community have to observe. The Shariat enshrines the Mus-
lim code of ethics and good life. According to Islam, Shariat is above every-
one and every law and even the Jmam or Khalifah is under it. These are
the basic sources on which was based the political ideas of the Muslims.
To these may be added the contributions of great legists who, based on their
elaborate study of the Shariat, Muslim theology and jurisprudence have
outlined their views on political problems. Among such renowned scholars
and thinkers mention may be made of Iba Khaldun, Abu Hanifa, Shafi,
Malik, Hanbal, Abu Yusuf, Marwardi and Ghazzali. These legists versed in
220 HISTORY FOR LAW STUDENTS [CHAP.

theology could not go beyond the canonical law, and accept and enunciate
the philosophical concepts of change. As 1H. Qureshi aptly remarks:
‘* Muslim political thinkers seldom ventured beyond the realm of apology
and justification. They never struck a bold path.... Perhaps, with more inde-
pendent thinking, the principle of election and consultation could be trans-
lated into more democratic political institutions. They had considerable scope
for growth among Muslims, whose religious, social and economic systems
would have nurtured democracy. But it is, perhaps, unjust to expect men to
rise above their environment.’*' Consequently Muslim political institutions
were coloured by theology.
The Muslim philosophers share with many others the. view. that the emer-
gence of the state was preceded by anarchy. The purely selfish motives in
men led them to undermine the institutions built by them. Hence, arose the
necessity of an arbitrator to maintain a balance between the social and in-
dividual needs of man. The arbitrator is no other thantthe law ‘revealed by
God through His chosen servants’. There arose a situation when people dis-
obeyed law either for reasons of selfishness or ignorance. Hence, the
necessity of the monarch to punish the wicked and ‘lead the ignorant on the
path of rectitude’. The Muslim philosopher didnot bélieve in the existence
of a Golden Age where people lived in a state of bliss without law and
law-enforcing authority. According to them it is impossible for man to be
happy in a state of anarchy. The organismic aep of State occurs in Ghaz-
zali and he compares the monarch to the heart of the system. According |to
him the tuler ‘isthe primary necessity of social life, for without a ruler to
guide the.affairs.of mankind, all order would vanish and the very, existence
of thehuman race would be endangered’. > It is the duty of the just monarch
to restore peace and order by putting an end to anarchy and evil. The Muslim
philosophers idealised the institution of monarchy which gave rise to the
conception of the monarch as ‘the Viceregent of God and His shadow on
the earth’. I.H. Qureshi is right when he comments, *‘Such identification of
the monarch could not permit the growth of a philosophy demanding any
popular share in ordering the affairs of the realm. The thinkers who so eu-
logized the kingly office, thought that they had done their duty when they
had pointed out to the monarchs their heavy responsibilities and painted the
degradation of irresponsible and the wicked monarchs in hues borrowed
from the abysmal fire.’’*
1. The Dethi Sultanate, p. 442.
2. Ibid, p. 443.
3. Ibid, pp. 443-444.
 1X] MEDIEVAL INDIA 221

The behest of Allah, namsety," ‘Obey me, obey the Prophet and all those
that are in authority among-you’’ wis faithfully followed by all the Muslims
and the Sultans of Delhi were no exception to this. They were not the head
of a religion but only head of their state. In matters concerning the state the
primary duty was the observance of the laws of Shariat. They respected the
Khalifah, called themselves as his Naib (deputy) and accepted Abbasid
Khalifahs as their overlords. Most of them at least kept up the pretence of
regarding the Khalifah as the legal sovereign. There were Sultans who re-
fused to recognise the Khalifah as their overlord. Balban called himself the
Shadow of God. Muhammad-bin-Tughluq assumed this title in the early
period of his reign, but gave it up later with a view to gain support of the
Ulema. However he made no mention of the Khalifah in the Khutba. But
none of them, though powerful, went to the extent of calling themselves the
Khalifah. It was left to Qutb-ud-din Mubarak Khalji, son of Ala-ud-din
Khalji, to discontinue this practice of showing subordination to the Khalifah.
He called himself Khalifah-i-rabb-ul-Alimin, Khalifat-ul-Allah, and Amir-
ul-Mowinin. Generally, the Sultans of Delhi accepted the overlordship of
the Khalifah_. only in name, but in practice they behaved as independent
monarchs with no overlord to obey. This pretence
of accepting the Khalifah
4s their 6Verlord andshowing respect to him was intended
towin over to
their side Sunni subjects as well as the Ulema who commanded greater
religious influence among the Muslims. ‘‘But this gave ‘to the Khalifah n
no
right
interfere
to in the affairs of theSultans nor did
he receive any regular
tribute or presents.
The Sultans dangled himlike-a Shikhandi but exercised
all the rights of sovereignty by ihenuseties"™4
The establishment of the Mughal rule in India synchronised with rev-
olutionary changes in both national and international spheres. The estab-
lishment of sovereign states had almost become universal. The administrative
organisation was recognised in practice as lying beyond the jurisdiction of
Quran. Even in countries where almost the entire population subscribed to
Islam (Persia, Afghanistan, Egypt, etc.) the need to incorporate pre-Muslim
customs in the organisation of the government was felt increasingly. India
presented a different spectacle where the bulk of the population were Hindus.
Therefore it was no easy task to organise government based on the Muslim
law. The Mughal rulers following the Timurid tradition introduced fun-
damental changes in the administrative structure in India. In theory they
were only servants of Muslim law which was true of the personal law of
Oe

4. A.B. Pande, Society and Government in Medieval India, p 15.

222 HISTORY FOR LAW STUDENTS [CHAP.

the Muslims alone. They did not accept the Khalifah even as their nominal
overlord and felt themselves at liberty to order things as they liked as long
as they did not come in conflict with the Quranic injunctions. Babur, a
self-respecting man, realised the necessity of asserting his constitutional su-
premacy and this led him to assume the title of Padshah.(empetor). His
successors, Akbar, Jahangir, Shah Jahan and Aurangzeb, all claimed to be
the ‘Shadow of God’, ‘Vakil’ (agent) of God on Earth, *Khalifah © (deputy
of the Prophet) of their age and country.’ Akbar himself recited the Khutba,
in 1577, in imitation of the practice of later Khalifahs and initiated the
practices of Sijda (prostration) and Zaminbos (kissing the ground in front
of the royal throne). He declared himself the arbiter in case of difference
of opinions regarding Islamic laws. In theory at least he regarded the Quran
as the fundamental law of the state. Leaving out the puppets of the eighteenth
century, no Mughal ruler before it ever recognised the authority of any out-
side power. Thus the Mughal government was nottheocratic as there was
no independent religious head recognised by the majority of the population
without dispute.> pee tt nan a
2,
4. Administrative Apparatus
The head of the state was the Sultan who enjoyed position and power
similar to that of the Caliph the only difference being the subordinate or
inferior position in which he was placed in relation to the Caliph. He con-
centrated in his hand all executive and judicial powers. He was
head
the of
his armed forces and often led his army inperson to the battle-field. All
appointments to the higher civil and military posts were made by him.

The Law of Succession:

The Turko-Afghans failed to evolve a definite law of succession to the
throne. The Islamic ideals required a sovereign to ‘be a male adult, suffering
from no physical disability, a free-born Muslim having faith in Islam and
acquainted with its doctrines, capablé of leadership, fit to govern-on-prin-
ciplesof equity andjustice
and that he should be elected by thepeople’.
These ideals were followed only in breaches. Razia was raised to the throne
though a woman and Kaiquubad remained the Sultan as a paralytic. Thus
there was no law of succession to the throne. pie.prrnsaple-oleheralilary
succession and nomination of successor by the last ruling Sultan came into
‘Vogue,
but ifSomebody usurped authority by force they didnot hesitate to
offer homage to him. The sword also sometimes decided the issue of suc-
cession as the instances of Ala-ud-din Khalji and Buhlul Lodi show.
5. S.R. Sharma, The Mughal Empire, p. 523.
IX] MEDIEVAL INDIA 223

The Administrative Officers

In administering the state, the Sultan was assisted by a number of of-
ficials. They included:
The Naib or Deputy Sultan, a post created during the reign of Bahram
Shah. Appointment to this post was made when a ruler was weak or minor,
and he ranked above the Wazir. Ala-ud-din gave this office to a nobleman
as a mark of special favour.
Wazir: He was the Prime Minister and was placed at the head of the
finance department called the Diwan-i-Wazarat. He supervised not only the
income and expenditure of the state but all other departments also. He was
assisted by many officers and subordinates, most important among them
being the Naib-Wazir, Mushrif-Mamalik (auditor general) and Mustaufi-i-
Mamalik who was entrusted with the supervision over expenditure.
Ariz-i-Mumalik : He was the head of the military department called
Diwan-i-arz. He was responsible for the organisation, maintenance and con-
trol of the armed forces.
Dabir-i-Khas: He was the head of department of records called Diwan-
i-Insha. He was in charge of all formal or confidential correspondence be-
tween the Sultan with other high dignitaries and officials.
Sadr-us-Sudur: He was the head of the ecclesiastical department. The
propagation of Islam, observance of its principles and protection of privileges
of Muslims were his primary duties. He maintained a separate treasury which
received all collections from Zakat (a religious tax on the Muslims) and
utilised it for providing financial assistance to Mosques, Maqtabs (educa-
tional institutions), learned men, saints, the orphaned or the disabled. _
Qazi-ul-quzat: He was the head of the judicial department and was the
highest judicial officer in the state after the Sultan. Usually the posts of
Sadr-us-sudur and the chief Qazi were combined in a single person.
Barid-i-Mumalik: He headed the information and intelligence depart-
ment. He controlled the dakchaukis or news outposts. He was responsible
for the espionage system.
Besides these there were numerous other officers of various grades and
ranks created from time to time to meet special needs. For instance, Mu-
hammad bin Tughluq created the department of agriculture called Diwan-
i-amir Kohi. The royal Karkhanas, the royal kitchen, the royal stables and
the royal household were manned by officers of different ranks. The Sultan
maintained his personal bodyguard which consisted of trusted men.
 224 HISTORY FOR LAW STUDENTS [(CHAP.

Administrative Divisions

For the sake of administrative convenience the empire was divided into —
provinces called /gtas. The head of the /gtas was variously calledRe as naib,
—_ ° °
Sultan, nazim or wali. The administrative machinery of the provinces re- |
‘ : -

sembled those of the Central Government. The heads of the provinces were
required to send annual report of their income and expenditure to the Sultan
and deposit the balance in the central exchequer. In the event of waging
war and achieving victory the share of the state in the spoils of war was to
be sent to the Sultan. The Sultans kept a watchful eye on the provincial
heads.
Prior to the end of the thirteenth century there were no smaller admin-
istrative units below the provinces. Later,the /gias were divided into smaller
units called shiggs and they were placed in charge of shiggdars. The shiggs
were further subdivided into sarkars and the sarkars into parganas. They
were respectively placed in charge of shiqqdar-i-siqgq-daran and awil.
Greater emphasis was laid on the pargana administration as it was there
that the government came into direct contact with the peasants. The village
was the lowest unit of administration, administered by local hereditary of-
ficers and the village panchayat. The hereditary village officials like the
Chaudhri, the Patwari, the Khut, the Mugaddam and the Chaukidar helped
~ the government in the collection of revenue. They continued to enjoy certain
privileges as was before, except during the reign of Ala-ud-din. The village
panchayat settled disputes among the villagers and looked after the socio-
logical needsof the village community.

5. Reforms of Ala-ud-din Khilji

Ala-ud-din tried to establish a strong government at the centre. He es-
tablished a military regime and did not claim sovereignty on the basis of
heredity or election by the nobles. He had the courage to say that he was
not prepared to be dictated by the Ulema. The early period of his reign was
plagued with frequent revolts, which he suppressed. He was so disturbed by
the internal disorder, he wanted to trace the root causes of the revolts. Even
during the siege of Ranthambhor Ala-ud-din consulted his prominent coun-
sellors and after careful deliberations he came to the conclusion that four
primary factors caused the disease in the body politic. Firstly, due to the
inefficiency of the spy system, the Sultan was ignorant of the condition of
the people. Secondly, drinking parties among one nobles brought them close
to each other and encouraged them for conspiracies. Thirdly, social inter-
 IX} MEDIEVAL INDIA 225

course and inter-marriages among the nobles made them a compact body
which posed a serious threat to the state. And lastly, excess wealth gave the
people both power and leisure for evil thoughts and rebellions. After return-
ing to Delhi, with a view to prevent recurrence of rebellions in future he
issued four ordinances. The first was directed against the wealth of the
people. The religious endowments were withdrawn and all grants of land
and pensions were cancelled. The collectors of taxes were instructed to ex-
tract money from the people on every kind of pretext. The object of the
Sultan was to reduce the nobles and the rich people to abject poverty so
that they would be so absorbed in securing means of livelihood that the very
thought of rebellion would not occur to their mind. The second ordinance
established an elaborate espionage system, Barids (spy-officers) and Munhis
(spies) were appointed in the houses of the rich, the officers, governors, in
markets and in towns and villages. They had to keep the Sultan informed
of the conduct of the people. So, thorough and universal was this espionage
system that the nobles spoke in whispers and third ordinance prohibited
liquor, drugs and dicing. The Sultan himself gave up drinking and all his
wine-vessels were broken before the public. When Delhi did not go dry in
spite of this ordinance, the Sultan permitted private manufacture and use of
wine; but banned public parties and use of wine in public places. The fourth
ordinance prohibited social gathering among the nobles and forbade inter-
marriages among them without the permission of the Sultan.
By these measures the Sultan was able to control the nobility and there
occurred no revolt during his reign. ‘The amenities of social life disappeared
and life became an intolerable burden’. Ala-ud-din introduced economic
measures for political purposes. The first ordinance affected the Turks and
other Muslims. For the Hindus the revenue was fixed at half the gross pro-
duce of the land and their burden was further increased by grazing and house
taxes. He introduced the practice of the measurement of land as a preliminary
to land settlements. He was the first Muslim ruler to do so.
Again, Ala-ud-din was the first Sultan to reorganise the army. He created
a large standing army directly recruited and paid by the state. He instituted
the practice of maintaining descriptive role of individual soldiers and the
branding of horses. He paid personal attention to the equipment and disci-
pline of the armed forces. He maintained a big and able army at a minimum
cost by fixing the prices far below the usual market rates of all articles from
the absolute necessaries of life to things of luxury, so that a soldier could
maintain comfortable standard on a low salary. This leads us to Ala-ud-din’s
market reforms.

q
226 HISTORY FOR LAW STUDENTS {CHAP.

Market Regulations:
Perhaps the most remarkable of Ala-ud-din’s regulations were his ex-
periments in political economy. He fixed the prices of not only all varieties
of grain, pulses, cloth, slaves, cattle and horses but also of meat, fish, dry
fruits, sugarcane, vegetables, needles, colours, betel-leaves, etc., in fact, all
necessary articles. The revenue was realised in kind and the grain thus se-
cured was stored in state granaries to provide against years of scarcity. The
peasants were to sell their produce only to the controlled merchants and no
public hoarding was tolerated. The merchants were required to register them-
selves. Cloth merchants were given advances to purchase cloth from outside
and sell it in Delhi at fixed prices. Other merchants were compelled to bring
certain quantities of different articles to Delhi so that there was no scarcity
of anything. The merchants had to keep their wives and children as hostages
at Delhi to force them to bring regular supplies to the market at the capital.
The merchants were allowed a margin of profit which offered no incentive.
A superintendent of market with a strong staff of assistants were ap-
pointed for the strict enforcement of the price regulations. Punishments for
the violation of regulations were severe and even barbarous. A shop-keeper
defrauding his customer by giving short weight had to make up for the
deficiency by an equivalent amount of flesh. The essence of the system of
political economy consisted in the control of supplies, control of transport
and rationing of consumption if necessary. Barani remarks that ‘the unva-
rying price of grain in the markets was looked upon as one of the wonders
of the time’. The commodities were cheap only in and near Delhi and else-
where in the country they ruled high. Hence, the army and the people in
and around Delhi were the beneficiaries of the market regulations. ‘‘Judged
by the objectives which inspired them, they proved highly successful. Op-
posed as they were to economic laws, they died with their author.’’® Thus
the market system of Ala-ud-din was a novel and successful experiment. It
certainly led to the stability of the government. But in the long run, it was
neither in the interest of the people nor in the permanent interest of the state.
K.S. Lal is perhaps right when he writes: ‘‘The motive of the Sultan may
not have been to crush the poor peasants against whom he possibly could
have no grudge, but the exigencies of the state required him to take such
steps under which the interests of commerce and cultivation were sacrificed
to those of the army.”’

6. The Delhi Sultanate, p. 29.

IX] MEDIEVAL INDIA 227

6. Reforms of Muhammad-bin-Tughluq

Muhammad-bin-Tughluq launched many schemes and made experi-

ments in administrative, political and financial matters. He issued several
ordinances for the improvement of the revenue administration. The first or-
dinance required all the provincial governors to submit the reports of income
and expenditure of their respective provinces to centre. They were further
required to prepare a register giving these details. The ordinance had two-
fold objects; first was to enable the Sultan to introduce a uniform standard
of revenue throughout the empire; and two, to see that villages are assessed.

Another of his administrative acts was the enhancement of the taxation

in the Doab. The Sultan wanted to increase the resources of the government
and hence this measure. According to Barani the taxation was increased ten
and twenty times and rigorous attempts were made to collect the newly
imposed taxes. The Sultan chose to increase the taxes when the Doab was
reeling under severe famine. The people were hard hit and the ryots were
‘reduced to impotence, poverty and ruin’. The peasants deserted their land
and took to highway robbery. Some took refuge in the forests. There were
rebellions or. all sides and they were crushed with a heavy hand. Agriculture
suffered terribly and a fertile province was devastated. Even the usual
revenue could not be collected from the Doab. The Sultan forced back the
cultivators to their work, abolished taxes, gave them seed, bullocks, etc.,
and arranged for the digging of wells for irrigation. The wound that was
created could not be healed by these measures soon and this unrealistic
approach was responsible for the failure of his revenue policy.

The Sultan was interested in promoting agriculture to increase the

revenue. He set up a new agricultural department called the Diwan-i-Amir-
i-Kohi with a staff of about a hundred officials. Accordingly, certain agri-
cultural reforms were introduced, and a large area of land in the Doab was
divided into plots, each sixty miles square. On each of these workmen were
appointed to till the soil and to see that the produce was not less than necess-
ary. Contractors were called for and the government advanced nearly seventy
lakh tanka in the course of two years to them on the condition that they
promoted agriculture. ‘“The corruption of the officers, poor quality of land
chosen for farming and indifference of cultivators who were assigned land
under government supervision were responsible for the failure of the sche-
me’’. What is more, in spite of the expenditure of this magnitude not
even one-hundredth or the one-thousandth part of the promised cultiva-
228 HISTORY FOR LAW STUDENTS [CHAP.

tion was carried out.’ The scheme, like other schemes of the Sultan, was
abandoned in haste after an experiment lasting for three years.
The two noted Sultans of the Delhi Sultanate, Ala-ud-din Khalji and
Muhammad-bin-Tughluq introduced series of administrative reforms to
strengthen the fabric of the state. Though sound, these reforms became un-
popular. Either they were in haste or chose inappropriate time or failed to
gaze the public mind. For some of these reforms were later implemented
with success by the Mughals.

7. Departmental Administration under the Mughals

The Mughals ruled independently without recognising outside authority.
Like the Sultans of Delhi the Mughal emperor ‘was the fountain of all hon-
ours’. He was the head of the executive, the fountain-head of justice, the
commander-in-chief of the army and the final arbiter in everything. From
the days of Akbar, the emperor came to be regarded as the representative
of God on earth. This explains the practices like Jharokha Darshan (audi-
ence through a special window) and Tula Dar (weighing of the emperor
against gold) started by Akbar. According to Abul Fazl, ‘“‘Royalty is a light
emanating from God, a ray from the Sun, the illuminator of the universe,
and argument of the book of perfection, the receptacle of all view.’’ In spite
of this nature of kingship, the Mughal rulers believed that the foremost duty
of a king was to care for the welfare of his subjects. Even Aurangzeb was
conscious of this duty towards his subjects. There was no accepted law of
succession.
The Mughals inherited an administrative structure which was by no
means sound. Akbar raised the structure of the Mughal administration on a
systematic plan. He was an innovator in many fields of administration and
possessed practical wisdom to implement those reforms. He was the first
man who tried to regulate and systematise this huge administrative edifice
and develop rules, traditions and practices which made for efficient and
smooth working of the different departments. The administration he provided
was universally applied throughout the territories of the Mughal empire.
Akbar once said, *“‘Divine worship in monarchs consists in their justice and
good administration.’’ In fact the main framework of the administration
which he established, though in a considerably attenuated form, endured till the
English East India Company stepped into the shoes of the Mughal emperors.
The success of the government at the centre depended on the personal
supervision of the monarch as he was ‘the sole director of the state machine,

7. Mahdi Husain, Tughluq Dynasty, pp. 278-79.

IX] MEDIEVAL INDIA 229

the centre of all aspirations and the object of all reverence. According to
Jadu Nath Sarkar, *‘The Mughal Emperor had no regular Council of Min-
isters. The Wazir and the Diwan were the richest persons below the Em-
peror, but the other officers were in no sense his colleagues. They were
admittedly inferior to him and deserved rather to be called secretaries than
ministers. Nearly all their work was liable to revision by the Wazir and
Royal orders were often transmitted to them through him.’’ The Wazir could
act without these officers or against them. In fact, the functions of even
these two high dignitaries were not clearly defined. It depended on the tem-
perament of the emperor and his own capacity for political affairs.
Babur ruled for four years and since he spent most of the time in wars,
he paid no attention to the organisation of administration. Under Humayun
the work of the central government was divided into four departments.
1. Atashi: It was a military department entrusted especially with the
maintenance of artillery and the manufacture of firearms.
2. Hawai: The department looked after the royal wardrobe, kitchen
and stables.
3. Abi: It was the department of irrigation. The department was made
responsible for providing irrigational facilities to agriculture by
cutting new canals and the regular supply of water.
4. Khaki: The department supervised agriculture, the erection of
public buildings in addition to attending to some household af-
fairs.
These departments were placed under a nobleman, but subsequently,
with the appointment of Prime Minister, all these departments were entrusted
his care. After Humayun more departments were created and among them
the most important were:
1. The exchequer and revenue under the High Diwan or Diwan-i-
Ala.
2. The Imperial Household under the High Steward or Khani-
Saman.
The military pay and accounts office under the Imperial Bakshi.
Canon Law, Both Civil and Criminal, under the Chief Qazi.
Religious endowments and charity under the Chief Sadar.
Censorship of public morals under the Muhtasib.
The Artillery under the Mir Atish or Darogha-i-Topkhana.
Intelligence and posts under the Darogha of Dak-Chauki.
NAWHWHDW
2
230 HISTORY FOR LAW STUDENTS [{CHAP.

9. Mint under a Daroga

The above were among ‘the companions of the king’. Among the other
departments mention may be made of the palace physician, astronomer,
sooth-sayer, and poet; special officers in charge of cavalry, infantry and
admiralty respectively. These departments were headed by high officers of
the state. There were some small departments of state presided over by lesser
officers. They included imperial workshop or Nazir Burjutat headed by a
superintendent or chief engineer, imperial forests in charge of a superintend-
ent called Mir Barr, Superintendent of Imperial kitchen or Khana salar
and superintendent of Aviaries or Kushbegi.
Besides these, there was an army of clerks, accountants, auditors, or-
derlies etc., who carried on the official work of the central department or
ran the state-owned factories. There were in addition news reporters, intel-
ligence officers and secret agents (spies) who watched the activities of gov-
ernment servants, Captain William Hawkins, an adventurous English
seaman, who was sent on a mission to the Court of Jahangir by James I,
King of England, was surprised to learn that Jahangir had already received
a detailed report of his ill-treatment at Surat and that remedial measures had
been taken. A significant feature of the working of these departments was
that everything had to appear sound on paper and copies of all papers going
out of different departments had to be sent to the Prime Minister. This pro-
cedure suggests that the government appeared quite efficient on paper al-
though, in practice, there was no strict adherence to rules and regulations.
The way that the government functioned through correspondence has led
some scholars to describe the Mughal government as Kagaz Raj or Paper
Government. What is more, there was no change in the working of the
central government whether the emperor was in the capital or in the battle-
field or in the provinces or on frequent inspection tours.

Administrative Divisions

The empire was divided into provinces called subas. The suba was not
merely an administrative unit of manageable size, but a historical tract. The
number of subas varied from time to time. There were fifteen provinces
during the reign of Akbar and twenty during the reign of Aurangzeb. The
head of the province was variously designated as Nizam, Sipahsalar or
simply Subedar. According to Jadu Nath Sarkar, ‘‘The administrative
agency in the province of the Mughal Empire was an exact miniature of
that of the central government.’’ The Subedar was assisted by the provincial
Diwan who was directly appointed by the emperor or the Imperial Diwan.
1X] MEDIEVAL INDIA 231

He was not subordinate to the Subedar but to the Imperial Diwan. There
were other officers like Bakshi, Sadr, Qazi, Kotwal, the Wagayanavis and
in some provinces mir bahr and darogha-i-dak-chauki who assisted the
Subedar in administering the province. The fact that the European visitors
and some Muslim writers have condemned the provincial administration
shows that there were instances of mis-government in the provinces.
The provinces were divided into districts called Sarkars. They were of
two types — a) those that were ruled by officers appointed by the emperor
subject to imperial regulations and 6) those in the territory of the Rajput or
other tributary rulers, governed by their representatives according to ancient
traditions. Faujdar was the head of the district. He was assisted by Amal
guzar (Finance Officer), Bitik chi (who maintained land records), Khanan-
dar (Treasurer), Kotwal and qazi.
Every district was divided into Parganas. The Pargana was composed
of numerous villages. The head of the Pargana was called Shigdar and he
was assisted by Amil (Finance Officer), Fotadar (treasurer), Qanungo (who
prepared all papers concerning agriculture and collection of revenue) and
Karkuns (clerks).
The village administration was left undisturbed by the Mughals. They
hardly came into close contact with the village folk and respected Indian
usages and institutions. They only realised the taxes and left the people free
to manage their affairs through their panchayats. Bernier (1656-85), a
French traveller, sees in the village system an approach to the modern mu-
nicipal administration. But Jadu Nath Sarkar feels that there is any evidence
of real municipal life. The towns were thoroughly under government officers.
In cities, however, there was loose corporate life approaching self-governing
institutions in rural areas.
Kotwal was placed in charge of the town. He performed such duties as
the preservation of peace and order, patrolling of the city at night, taking
note of the newcomers and aliens, watching the conduct and morals of the
citizens, regulating commercial transactions by supervising weights and
measures, coins, appointing guild masters and brokers and looking after the
welfare of labourers and artisans. It was his responsibility to detect theft and
had to make good the loss whether he was able to detect the crime or not. He
was assisted by the city army spies and detectives, news writers, sweepers and
scavengers. The conduct of the Kotwal determined the nature of the government.
The Mughal empire consisted of two classes of villages — landlord
villages and ryotwari-holding villages. Village administration was placed in
charge of Muqaddams. In case of landlord villages he was appointed by
232 HISTORY FOR LAW STUDENTS [CHAP.

the government. His salary was made up by an allowance from the govern-
ment, fee from the villagers and income from his own share of village land.
He performed similar functions as Kotwal. He was assisted in the adminis-
tration by Patwari (accountant), Munsiff, the Superintendent, the Land Sur-
veyor and Thanadar. The Thanadar performed police functions like the
Kotwal of the city. If the criminal was found in the jurisdiction of another
Thanadar, he shifted the burden to him.
The village officers were controlled by the Qanungo. Over the
Qanungo was the Tahsildar and over him was the Faujdar. The Faujdar
also supervised the roads in the rural tracts and paid compensation for day-
light robbery. ‘“There was thus some officer responsible for thefts and rob-
beries — the Faujdar on roads, the Kotwal in the city and the Thanadar
in the village’’.

8. The Mansabdari System

The Mansabdari system was founded by Akbar. It was, however, not
his innovation, for the institution existed before. Under the Mughals it be-
came more complex due to the inter-penetration of the institutions of army,
nobility, and civil service. As has been pointed out by Jadu Nath Sarkar,
Akbar organised the administrative machinery on a military basis in which
officers performing purely civil duties were granted military ranks indicated
by the mansabs given to them. The system of mansab was made so all-
embracing that even the members of the ecclesiastical department were
brought within its ambit. The nobles in service were recognised as nobles
and pressed into mansabdari.
Literally the word mansab means ‘the place where anything is put or
created’. It also means ‘to place, to fix, to appoint’. In a secondary meaning,
it means ‘the state or condition of holding a place, dignity or office’. A
mansab by itself did not imply any particular office. It merely defined the
recipients’ order of precedence or position in society or public service i.e.,
rank in a general sense. The word mansab was however not used to denote
the rank of an officer before Akbar. Therefore, credit must go to Akbar who
instituted the mansabdari system ‘as a measure to minimise the chances of
fraud and bring about order and stability in the military organisation. It did
not remain static and kept on growing. In the course of its growth many
complexities entered into it’.
The mansabdari system possessed two distinct characteristics. The
mansabdars irrespective of their ranks owed direct subordination to the Em-
peror. The contingents of the mansabdars of higher ranks were not made
up by the inclusion of the contingents of the lower ranks. Each rank, whether
[X} MEDIEVAL INDIA 233

higher or lower, was represented exclusively by its own contingent. Some-

tumes these contingents were managed by the officers appointed by the man-
sabdars, but the officers were not called mansabdars. When, during an
expedition, a mansabdar of the lower rank was attached to that of a higher
rank, the former was to obey the orders of the latter in respect of movements
etc., only and not in respect of his contingent. Secondly, the mansab was
duel, represented by two numbers known as Zat and Sawar. In the beginning
of the reign of Akbar there is reference to a single number and not duel
number. However, during the last years of his reign only a mansab was
designated by reference to Zat and Sawar.
There is no unanimity of opinion regarding the number of grades, the
significance of the two terms, Zat and Sawar and the number of troops
maintained by them. There are as many different interpretations in respect
of these as there are interpreters. Abul Fazl states that ’‘on the basis of the
numerical value of the letters forming the word Allah (1 plus 20 plus 30
plus 5), the emperor fixed 66 grades of military officers’’. But in actual
enumeration of mansabdars he speaks of 33 grades only. According to J.N.
Sarkar ‘Zat was the original rank indicating his position and the Sawar was
the additional rank indicating the military obligation of the Mansabdar. The
Sawar rank was either equal or less than the Zat rank and the position of
the mansaldar was determined by the Zat rank’.
In the days of Akbar the lowest manasabdar was a commander of ten
and the highest originally of ten thousand. Rigid rules were not framed in
this respect. ‘Thus we find in the mansabdari system instances where the
Sawar rank exceeds the Zat rank, cases of conditional Sawar ranks, the
introduction of Do-aspa sih-aspa (two or three horse remounts) Sawar rank
in the reign of Jahangir, and month scales in the reign of Shah Jahan’. In
simple terms, the Zat indicated a rank in relation to the officers and nobles
of the state and the pay was meant for maintaining his position, dignity and
a befitting household establishment. Sawar indicated the number of cavalry
men that a mansabdar was to keep. Every mansadbar maintained his own
army, looked after the recruitment, training, discipline, arms, dress, etc., of
his soldiers.
The mansabdari system was not free from defects. Blochmann informs
us that every mansabdar of the Zat rank had to maintain as many soldiers
as were indicated by his rank and the Sawar the required number of horses.
This requirement was observed only in breaches. Therefore, regulations
about muster, branding the horses and elephants and descriptive rolls were
adopted and salary fixed accordingly. A new department called Dagh-Ma-
hali was established for the purpose of branding the horses and elephants.
234 HISTORY FOR LAW STUDENTS (CHAP.

The emperor began the practice of inspecting the army of every mansabdar
once in a year or once in three years. Yet some defects persisted till the
very end. As the mansabdar recruited, trained, armed and paid his soldiers
the soldier looked upon him as his real master and was more loyal to him
than the emperor. Absence of direct control of the emperor led to many
serious handicaps. In the absence of a central organisation to impart effective
training and discipline to the soldiers and to equip them, the army presented
a motley group lacking in improved fighting skill. The general standard of
morality among the aristocracy and the mansabdars who imitated them was
rather low. They started taking their wives and concubines with them to the
battlefield. Prostitutes and slaves, both male and female, followed them. The
inclusion of this army of non-combatants in the regular armed force ‘acted
as a great lag on the speed and efficiency of the army and the problem of
supply became more acute’. Foreign travellers have remarked that when the
imperial army went out on an expedition it resembled the progress of a gay
procession or presented the sight of a colourful city in majestic motion.*
There is no wonder if the Mughal army after Akbar became inefficient and
failed to give a good account of itself.
Akbar conceived the project at a time when caste prejudices ruled the
roost and the soldiers fought with renewed zeal and vigour under a com-
mander of their own caste than otherwise. In such an atmosphere the emperor
thought it difficult to recruit the army directly and distribute it over the
empire as he desired. The best course under the circumstances according to
him was to lay down general rules for recruitment, maintenance, discipline
and payment of troops and leave it to the individual mansabdars to recruit
and maintain their contingents as per the rules of the imperial government.
The chief merit of this arrangement lies in the fact that it provided oppor-
tunities to the suitable members of all classes and communities to get them-
selves enrolled in the army. And more important the centre was spared of
the responsibility of maintaining day-to-day control over them.’ The fault
lies not in the system but in the apathy of the successors of Akbar in the
effective enforcement of the imperial rules on the mansabdars.

9. Akbar’s Revenue Reforms

India’s economy during the Mughal period, as in the ages before and
after, was predominantly agricultural. Land revenue was the major or the
sole source of income to the state. It was on the success of the revenue
policy largely depended the popularity of the rulers among the people. This
explains why all great rulers of ancient and medieval India tried to keep
their land revenue policy on a sound footing. They were conscious of the

8. A.B. Pandey, op.cit., p. 126.

9, Ibid, p. 121.
IX] MEDIEVAL INDIA 235

fact that any injury to the backbone meant crisis in the economy which led
to instability and the deterioration of the law and order. History of our land
records show numerous instances of the rulers introducing measures for the
prosperity of agriculture and the ancient Indian writers on statecraft pres-
cribed this as a duty of the king.
Akbar was the first Mughal emperor to introduce far-reaching reforms
having particular regard for the welfare of the peasants and revenues of the
state. Akbar appears to have been benefited by the experiments of Sher Shah
before him who had adopted measurement as the normal method of assess-
ment, introduced classification of land on the basis of fertility of soil to
determine the average yield and the state’s share in it, issued pattas or title
deeds to the peasants defining mutual rights and obligations and introduced
a permanent schedule of rates. The principal objectives of Sher Shah and
Akbar were one and the same, namely, to ameliorate the condition of the
peasants and to stabilise the revenues of the state. Justice to all appears to
have been their guiding motto.
Akbar proposed measurement to assess the land revenue. Instead of
hempen rope which contracted and expanded according to weather condition,
the land was measured by bamboos which were joined together by iron
rings, so that its length remained constant, called the jarib. In the beginning
Gaz-i-Sikandari which measured, 42 digits long were used for measurement,
but in 1586-87 Gaz-i-Ilahi measuring 41 digits was introduced. The unit of
area for field now was the bigha which was 60 x 60 yards i.e., 3,600 square
yards. Peasants were made the true owners of land, the state’s right was
limited to demand tax only. Revenue was realised seasonwise, just after the
harvest and if the peasants failed to pay the whole amount, they were not
deprived of the land, but was realised on easy instalments. The collectors
of revenue were asked not to oppress the peasants for fear that the latter
may desert their land and no one may undertake to cultivate it. In that case
the state would have deprived of whatever the amount it could realise.
Akbar attempted at the equitable distribution of burden of taxation by
classifying the land according to fertility and fixing rent in proportion to it.
Accordingly land was divided into four classes, i.e., the polaj, which was
cultivated every year and brought annual revenue to the state; the parauti
or parati, which was sometimes left fallow for 1 or 2 years; the chachar,
which was left uncultivated for 3 or 4 years; and the banjar, which had not
been cultivated for five years or more. For the determination of the average
each of the first three kinds of land was divided into three grades good, bad
and middling. The average yield per bigha of each kind of land in respect
236 HISTORY FOR LAW STUDENTS [CHAP.

of every crop was totalled up and divided by three. The average was treated
as the standard yield of all categories of polaj land. One-third of this average
was fixed as the share of the state.
The revenue demand was shown in kind, but the emperor preferred
payment in cash and this was met by converting the grain demand to the
market rates prevailing at the time of harvest. This system remained in force
for ten years. The working of the arrangement brought to the surface many
practical difficulties and disaffection among the peasants. The fresh changes
introduced by the emperor failed to satisfy the peasants. He wanted to find
a permanent solution to this perplexing problem and therefore in 1580 he
came up with a new scheme which has come to be known as the Dahsala
or the Zabti system (according to regulation).
According to this system the average yield per bigha of each kind of
land in respect of every crop was ascertained dastur-wise on the basis of
past ten years’ produce and on its basis revenue was fixed permanently. The
schedule was not to be affected ordinarily by actuals of produce or market
prices.
The Dahsala system proved beneficial to both the peasants and the
government. In the case peasant, he knew what he had to pay and could
calculate it himself as soon as the sowings were over. The state could save
money as it now did not require so many revenue collectors as was before.
The state knew its income and was in a position to plan in advance disbur-
sements and launching of new scheme. Thus the land revenue reforms in-
troduced by Akbar continued to influence state policy even until the days
of the British rule.
In summing up it may be said the Turks brought with them new political
ideas which they wanted to implement in the country of their conquest. This
proved difficult as the majority of the population were opposed to it. Certain
compromises had to be effected and that was done. In the course of their
rule the Sultans of Delhi made an attempt to distance themselves from out-
side authority and this was effected fully the Mughals. Some Sultans like
Ala-ud-din Khalji and Muhammad-bin-Tughluq attempted at agrarian re-
formsto improve the financial resources of the state. This was rejected by
Akbar by introducing a permanent schedule of rates, defining mutual rights
and obligations of the peasants by issuing them pattas (title deeds) and
accepting the terms of proprietorship (gabuliyats) from them, adopting
measurement as the normal method of assessment and in harmoniously ad-
justing the interests of all parties concerned. The loopholes in the system of
Sher Shah were bridged by the combined efforts of Akbar and Raja Todar
 IX} MEDIEVAL INDIA 237

Mal. The result was the Dahsala system which remained a model till the
days of the British. The study reveals the interest evinced by these two
powers for the organisation of army and farming of revenue.'®

wna D0: sy b
Maw vert Sevolit ititiee
To bh “Snovib bie” sorsivisdhi ¥
ade ST “ya? Sea HITT? VIS 2 ay
ott ust OF fos f DSTI iore 2 awe DRAIN 8 Tove
Shas: Setae orl ees fort Dr: meal. Abi iot sino nast «
ro ‘Dy“SB Bite yrisgviog SAT WOH Tertese oat n) bib)
ages eeOBA 56) ROMA Motleyencinusing, ov;
To wiinups Ones Cis erroniqat suri nad 4
Served Seimauabel | si toi tneiabsiH doidw oat.wig of
WII ie nea Bt2% ye dantica e oes
: atiet © -" ” : Tov Vey) i
: . djah Ae 3 29 he ; ; >
> thy > “ oF ma yini 4 v5, P cv ci :

“ a ; . tty StH Ag oT
1 q a A. mh, re 2. at Fa Pig Fe ee Ne
eis “x f > bag otitis .ogwq 23
ta
\ ; i 6 FQ i es : ;
5 3 ore eis oy
iit | oe oA.
| »

oy-
—s
Se
a* Site
o
ts ube
, oa
- we
-*
aan—

a
pe
. Zz

-—
—_
—
 Chapter X

Medieval India Society

Tre advent of Islam into India produced far-reaching

consequences on Indian society. Indeed, Islam was the first religion
which made a frontal attack on the political, economic and social
institutions and made them, more or, less subservient to it. The principles
of universal brotherhood and human equality formed the bases of Islamic
Society. Not only it tolerated slaves as kings but also gave them the same
spiritual and temporal powers as to other Muslim rulers. They brought
with them their different laws of inheritance and divorce and their
conception of family life was entirely different. They, like the Indians,
preferred a male over a female and always preferred a son to a daughter.
Though a democratic religion Islam did not accord the same status to
women as it did in the case of men. The polygamy and the purdah were
the two institutions which restricted the freedom of Muslim women and
reduced their status. In practice, there was no equality of sexes.
The new race, which Hinduism, for the first time in its history, failed
to absorb into itself remained distinct and separate. Moreover, “their
society and state retained its original nomadic and military character—
the ruling race living merely like an armed camp in the land. It was
Akbar who, at the end of the sixteenth century, began the policy of giving
to the people of the country an interest in the state, and making the
government undertake some socialistic functions in addition to the mere
police work it had hitherto contended itself doing. Down to Akbar’s time
the Muslim settlers in India used to be in the land but not of it”.! In
consequence a social gulf came to be created between Hindus and
Muslims. “Their life currents flowed separately and historically the Indian
society in medieval times was distinctly divided between the Hindus and
the Muslims. The Bhakti saints made sincere attempts to bring about
understanding between the two communities. It tried to harmonise Islam
and Hinduism and ‘to afford a common meeting ground to the devout
men of both creeds, in which their differences of rituals, dogmas and
external marks of faith were ignored’. Similarly, the Sufis tried to evolve
cooperation between the Hindus and the Muslims. But both the move-

1. J.N. Sarkar, India Through the Ages, pp. 41-42.

[ 238 ]
 MEDIEVAL INDIAN SOCIETY 239

ments were not completely successful in achieving their objectives. The

Bhakti movement was partially successful in reforming Hinduism; but it
failed completely to harmonise the relations of the Hindus and the Muslims.
What little success it achieved was neither permanent nor widely accepted.
Therefore, the study of these developments in the structure of the medieval
Indian society is both interesting and instructive.

1. Social Transformation
Indian society on the eve of the advent of Islam was tradition-bound
and complacent. It did not look beyond its borders to know of the changes
that were taking place and to reorder its own structure to suit the changing
needs of the time. The Hindu psyche is thus described by Al Berumi:
““Hindus were haughty, foolishly vain, self-contained, and stolid. They be-
lieved that there was no other country like theirs, no nation like theirs, no
kings like theirs, and no science like theirs. If any one were to say that there
is a country like theirs, a nation like theirs, king like theirs and science like
theirs, he would be dubbed a liar.’’ Indians lived in splendid solation trying
to work out their destinies in a manner that suited them most without seeking
any model from outside their borders. |
An attitude like this would have been meaningful if the structure of the
society was based on solid and sound base. Unfortunately for the Hindus
that was not so. The Hindu society was moth-eaten from within and from
without. The continued observance of hereditary caste system led to the
division of society into superior and inferior classes. The basic fact of Indian
cultural life was the religious and intellectual supremacy of the brahmanas,
and attempts to cross the barrier were severely punished. Al Berumi remarks:
**Every action which is the privilege of a brahmana, such as saying of
prayers, recitation of the Vedas and offering sacrifices to fire, is forbidden
to him to such a degree that when, for example, a sudra or a vaisya is proved
to have recited the Veda, he is accused by the brahmanas before the ruler
and the latter ordered his tongue to be cut off.’’? For a similar offence the
punishment for a chandala was not only quicker but also more severe. The
term Rajput, though not widely used, had come to signify Kshatriya, which
term had fallen into disuse. Thakurs who represented the warrior class con-
sisted of three grades — rais, ranas and rawats. The brahmanas and the
Thakurs were the landlords. During the 11th century Indian cities, towns
and villages were fortified and these two privileged classes held supreme
and exclusive control over them. The lots of the producing classes and

2. The quotations are from Sachu’s Alberuni’s India, Vols. | and II.
240 HISTORY FOR LAW STUDENTS [CHAP.

workers who lived outside the walled towns were unenviable. They were
kept in ignorance and being divided and subdivided they failed to develop
a corporate spirit. Much worse was the condition of industrial workers which
formed the non-caste groups. They were divided, according to Al Berumi,
into two sections — upper section consisting of anfyaja and lower section
consisting of Hadi, Doma, Chandala and Badhatu, who were not given any
human status. They were considered as unclean and impure because of the
dirty work like the cleaning of villages and other services they performed.
The chief aim of the governing classes appear to all intends and purposes
to keep these lower classes in their place. Thus sympathy, affection, soli-
darity and a sense of fraternal community was now confined within a small
group called the caste because of distinctive social customs and traditions.
‘This division of Indian society into castes and sub-castes with impassable
barriers between them, and the principle of discrimination as the basis of
the society, led to the unhappiest results’. This was further compounded by
their refusal to take back to the Hindu fold those inadvertently fell into the
hands of the Muslims, either captured during war or carried way forcibly.
In a way the Hindu society presented a divided house and it should not
surprise us, therefore, that it stood aghast when Ghazni Mohmud knocked
at the doors of India. The response was on the expected lines, to fall on the
defence, defending the existing order and trying to tighten its hold on the
society by imposing further restrictions and sanctions for violating them.
Even in this late hour of the day the orthodoxy failed to see the writings
on the wall and made any adjustments in allowing concessions, thereby
broad-basing the society. In spite of the opposition from the orthodoxy social
transformation began to take place as a result of the impact of Islam.
The first notable result of the political domination of the Muslims was
that the brahmanas lost their privileged position. Their status was eroded
and they now found it difficult to earn by following their hereditary occu-
pation, namely scholarly pursuits. Smritis had to redraft their regulations to
permit the brahmana to adopt occupation other than his own. Accordingly
the brahmana was permitted to pursue agriculture through hired labour or
by themselves. It was further declared that both agriculture and trade were
the occupations of people of all castes. However, when the brahmanas took
to trade, they were forbidden from dealing in such commodities as salt, oil,
liquors, meat and so forth. It was also permissible to eat the food of certain
sudra castes under some special circumstances. This permission was particu-
larly made applicable to the Kshatriyas and the Vaisyas who ‘‘at a time
when they are tired by the toils of journey, and are unable to procure food
from other castes’’ could eat the sudra’s food, ‘‘and that the food in
X] MEDIEVAL INDIAN SOCIETY 241

any case should be limited to just what is sufficient to save one’s life in
times of distress’’.> Even the brahmanas were permitted to take the food of
the sudra. When the weakness of the Indian social structure was thus ex-
posed, the orthodoxy was compelled to show laxity in the social disabilities
of the sudra. The orthodoxy gradually liberalised their attitude towards the
sudras and permitted them to listen to the recitation of the Puranas. He
could engage in trade, but was forbidden to deal with liquors, meat and so forth.
However, in times of distress he could deal in forbidden commodities also.
The clamour of the sudras to raise in the social scale can be seen in
the emergence of the caste called the Kayasthas in the later half of the ninth
century. They claimed that they were born from the Kaya or body of Brahma
and therefore were equal in status with the brahmanas, if not superior to
them. During the eleventh and the following centuries individuals of this
caste rose to the highest public offices in different parts of northern India.
During the Mughal rule the Kayasthas almost monopolized a large proportion
of the jobs in the Mughal bureaucracy. What is more, they served as inter-
mediaries between the rulers and the ruled. The ascendency of the sudras
in the social ladder was complete.
As said before, the rigidity of the caste system kept the lower castes
practically out of the Hindu fold. These lower castes, suppressed like slaves,
sided with the invaders, against high caste rulers. Naturally they embraced
Islam as it offered to every Hindu, irrespective of class or caste, the position
of absolute religious and social equality on embracing it. Though fora long
time political equality was not conceded to the converts, the latter were
undoubtedly in a far better position in this respect than the unconverted
Hindus.* The converts were exempted from slavery and payment of taxes. Mu-
hammad-bin-Qasim is reported to have enunciated the following principle:—
‘*He who received the honour of Islam and became a convert was exempt
from slavery as well as tribute and was not injured. Those, however, who did
not accept the true faith were compelled to pay the fixed tribute (Jizya).’’°
Social equality which the conversion conferred on the lower castes now
enabled them to rub their shoulders with high caste Hindus who had despised
them before and enjoy civil rights so long denied to them. These benefits
led the Hindus to embrace Islam in increasing numbers. ‘“Though at the
beginning we hear of reconversion of Hindus who had embraced Islamic
faith gradually it adopted a more restrictive attitude and practically closed

3. The Delhi Sultanate, p. 579.

4. The Struggle for the Empire, p. 498.
5. Quoted in /bid, p. 499.
242 HISTORY FOR LAW STUDENTS {CHAP.

its doors against admission from outside, even for those who once strayed
out of it, by force, choice, or accident’’.© This proved to be costly as the
population of the Muslims began to swell.
A different pattern of social structure prevailed in South India. The
social hierarchy in the Vijayanagara kingdom was composed of the
brahmanas, chettis or merchants, vira-panchalas or the artisans, Kaikolas
or weavers and barbers. The immigrant castes from the north such as the
Tottiyars, the Saurashtras and the Reddis caused the degradation in the
position of the indigenous castes like the Kurumbas. The society was a bit
more liberal becomes evident from the story of taking Harihara and Bukka,
who later became the founders of the Vijayanagara Empire, back to Hindu
fold at the instance of Vidyaranya. They had been forcibly converted to
Islam by Muhammad-bin-Tughluq. This coupled with the order in which the
social hierarchy was listed may point to the society being built anew or the
transformation taking place in the society.’
It can be gathered from what has been stated above that the traditional
Indian society was showing signs of cracks and instead of attending to its
urgent repairs the Hindus responded by developing ‘most inveterate aver-
sion’ towards the Muslims. This attitude is summed up by Al Beruni thus:
‘*All their (Hindus) fanaticism is directed against those who do not belong
to them — against all foreigners. They call them i.e., impure, and forbid
having any connection with them, be it by inter-marriage or any other kind
of relationship, or by sitting, eating and drinking with them, because thereby,
they think, they would be polluted. They consider as impure anything which
touches the fire and the water of a foreigner.... They are not allowed to receive
anybody who does not belong to them, even if he wished it, or was inclined
to their religion. This, too renders any connections with them quite impossible,
and constitutes the widest gulf between us and them.’’ But by and large the
common people whether the Hindus or the Muslims wished to lead a peaceful
life and they had either no political and religious ambitions or, if at all they
had, they were incapable to wield any influence over others. Their only aim
was to live in cooperation with their neighbours, be they the Hindus or the
Muslims. The aspirations of the common people belonging to both the com-
munities became the object of concern of the religious preachers of the Bhakti
movement who tried to harmonise Islam and Hinduism and to afford a common
platform to the devout minds among the Hindus and Mohammadans in which
their differences of language, manners, usages, ways and customs, rituals,
dogma and external signs of faith were not noticed.

6. The Struggle for the Empire, 498.

X] MEDIEVAL INDIAN SOCIETY 243

2. The Bhakti Movement

Fifteenth century witnessed a great religious revival in different parts
of the country. The rise of popular mysticism was a reaction to Brahmanism
which had become solely an intellectual doctrine. ‘‘It ignored the rights of
the heart. The fundamental principles it taught were impersonal and specu-
lative. The people, who were always in need of an ethical and emotional
cult in which it was possible to find both satisfaction of the heart and moral
guidance, understood nothing of it. It was under these circumstances that
the movement of Bhakti, devotion blended with love of God’’’ rose in
various parts of the country extolling the merits of Bhakti and giving dis-
courses to people, irrespective of caste, creed, colour or sex, on ethics, moral
and religious living.
All the higher thinkers, all the religious reformers, all the sincere devo-
tees among the Hindus from the earliest times, have proclaimed one and the
only supreme God behind the countless deities of popular worship, and have
declared the equality of all true adorers and placed a simple sincere faith
above elaborate religious ceremonies. They have all tried to simplify religion
and bring it to the doors of the common people. Though the vast majority
of the Hindu thinkers regarded the Vedas as the fountain of deep spiritual
thought, they never desired to canalise all thought into a single pattern and
to force everybody to conform to it. They recognised the value of a distinct
personality of each individual and despite differences of caste and family in
the social sphere have conceded to all complete spiritual freedom to seek
fulfilment of one’s personality according to one’s personality and light. They
regarded the individual as the epitome of the Universe and hence they sought
truth and reality within and not without themselves. The result was that
philosophy, religion, rituals and forms of devotion had a free growth and
the rulers of the day abstained from interfering in the religious and spiritual
life of the people and confined their attention merely to maintaining social
decorum and orderliness.®
What really happened after the Turkish domination in India was the
cleavage that came to be created between the rulers and the ruled, the Mus-
lims and the Hindus. The Hindu orthodoxy could do no more than to fall
on the defence imposing greater restriction on the social observances. This
attitude of the Hindus coupled with the attitude of some narrow-minded
Muslim bigots who regarded the Hindus as base and contemptible accentu-

7. Yusuf Hassan, Glimpses of Medieval Indian Culture, p. 3.

8. A.B. Pande, op. cit., pp. 169-70.
244 HISTORY FOR LAW STUDENTS [CHAP.

ated the differences between the two communities. The reforming move-
ments among the Hindus which were waiting in the wings as it were stepped
in to harmonise Islam and Hinduism. They also provided a common meet-
ing-ground to the liberal minded people of both religions so that they over-
come their differences of rituals, dogma and external marks of faith.”
Ramananda (1400-70 A.D.) was the architect of this new epoch of mys-
ticism in medieval India. Being dissatisfied with the orthodox practices fol-
lowed by the Vaisnavas of the Visisthadvaita school, Ramananda laid the
foundations of a new school of Vaisnavism based on the gospel of single-
minded, uninterrupted and unalloyed devotion to God. ‘“The most striking
point about Ramananda’s teaching’’, says Grierson, “‘and that which has so
captured the mind of India as to be enshrined in a proverbial saying, is that
so long as man or woman has a genuine living faith in the Supreme, his or
her caste and position in life are matters of no importance’’. He was himself
a brahmana, but had no objection to dine with members of the low castes
if they were Vaisnavas. That is why he says;
Jati panti puchchai nahi koi
Hari ko bhajai to Hari ka hoi
*“Let no one ask a man’s caste or with whom he eats,
If a man shows love to Hari, he becomes Hari’s own.’’!°
He took pupils even from the so-called degraded castes. According to
tradition, among his first disciples were Kabir (weaver), Sena (barber), and
Ravidas (cobbler).
Ramananda made the spirit of sympathy for the low castes a fundamen-
tal tenet of his doctrine. What is more, he borrowed ideas from the various
religious schools that existed before him, but vitalised them with the love
and devotion of his heart, and founded a path of spiritual realisation. Like
the Alvars of South India, Ramananda propagated his creed in the language
of the people so that they can readily follow them.
The most significant contribution of the Bhakti Movement during this
period, from the historical point of view, came from Kabir and Nanak.
“These saints expressed the sentiments of the urban class in towns and of
the artisans in the villages who were in contact with the towns. They drew
their ideas from the existing and Islamic traditions which mark them out as
distinct from other leaders’’.!!
9. Encyclopaedia of Religion and Ethics, Vol. 10., p. 570.
10. Ibid, p. 570.
11. Sabd 30 and 28, quoted from Glimpses of Medieval Indian Culture. p. 2v. |
X] MEDIEVAL INDIAN SOCIETY 245

Kabir (1440-70 A.D.), a bold and uncompromising reformer, was con-

cerned with much more than mere religious reform. He stood for changing
the society. He took upon himself as the mission of his life to find out a
means of reconciling the different castes and the religious communities. He
tried to bring about perfect harmony between the two communities by stress-
ing the essential unity of Hinduism and Islam. Kabir refused to accept the
fact that both the communities possessed different gods. He preached that
the ultimate reality was one and indivisible but that ignorant people quar-
relled about names and outer trappings. Therefore, he appeals:
‘“Brother, from where have the two Masters of the universe come? Tell
me, who has invented the names of Allah, Rama, Kesava, Hari and Hazrat?
All ornaments of gold are made of a unique substance. It is to show the
world that the two different signs are made, one is called namaj while the
Other is termed puja. Madhava and Muhammad are one and the same;
Brahma and Adam are one and the same. What is a Hindu? What is a Turk?
Both inhabit the same earth. One reads the Veda, and the other Koran and
Khutba. One is Maulana and the other a Pandit. Earthen vessels have dif-
ferent names, although they are made from the same earth. Kabir says; both
are misled, none has found God.’’ Continuing he says:
‘“Rama, Khuda, Sakti, Siva are one. Then to whom do the prayers go?
The Vedas, the Puranas and the Koran, are only different manners of de-
scriptions. Neither Hindu, nor Turk, neither the Jain nor the Yogi is cognizant
of the secret.’’ Kabir used to say: ‘Kabir is the child of Allah and Rama.’
Kabir denounced as valueless, arbitrary and unjust the time honoured
superstitions of caste, creed and social status. He claimed that even the Sudra
was superior to the most learned, if he were pious and had the love of God.
So he asks:
‘If you reflect on the origin of caste, they come into being from one
and the same order.... How is that one is born a Sudra, and remains a Sudra
till his death?.... One makes a Brahmana’s thread one self and then puts it
on. The world is thus in confusion. If thou art a Brahmana, born of a
Brahmani why art thou not born in a different fashion? If thou art a Turk,
born of a Turkish woman, why wasn’t thou circumcised in the mother’s
womb? If you milk a black cow and a white cow and then mix their milk,
will you be able to distinguish the milk of one from the other?!”

12. Yusuf Hassan, op. cit., pp. 23-24.

246 HISTORY FOR LAW STUDENTS [CHAP.

In a similar vain Kabir questioned the efficacy of pilgrimages, rituals,

sacrifices, and theologians’ dogma of superstitions. He declares;

‘“‘By going to pilgrimage you cannot save your soul, even if you
give millions of diamonds as alms.... Kasi and the barren land of Maghar
are not the abode of Rama: He resides in my heart. If Kabir dedicates
his life to Kasi what would be left for Rama?’’’

He told his disciples that the difference between Hindus and Muslims
is merely an artificial one. He says: “‘In the beginning there was no Turk
nor Hindu, — no race, no caste.”’

Kabir was concerned with the conditions of Indian society where caste
and religious differences kept men apart. His stress was on reordering of a
society on egalitarian lines. “His attacks are sharp and telling. Although his
diction is not urbane or polished, the turns of phrases coined by him are
saved from drabness by his high genius. Some of them are indeed marvellous
and truly mystical’. The call he gave for social equality was a powerful
magnet and expressed itself in a firm denunciation of caste. He asked the
people to join a non-caste group in which one’s own caste would be elimi-
nated. He made an honest and earnest attempt, though unsuccessful, to
remove the differences which separated Hindus and Muslims. He either,
denied the Hindu-Muslim ideas of God or else equated them by stating that
they were identical. The artisan community were very much influenced by
his preachings and they readily joined Kabir Panth and in course of time,
the Kabir Panthis came to be regarded as a Hindu sect, although the name
of Kabir itself remains a common Muslim name today’.

Guru Nanak (1469-1538 A.D.) holds a unique place among the medieval
saints of India. He reinforced the efforts of Kabir. He kept himself aloof
from all associations with the prevailing sectarian religions. Indeed Nanak’s
was the first, and also the last, successful attempt to bring together the
Hindus and Muslims in a common fold of spiritual and social brotherhood.

Like Kabir, Nanak preached that there was no Hindu and no Musulman.
When the Gazi questioned him, he replied: ‘‘Make kindness, thy mosque,
sincerity, thy prayer carpet, what is just and lawful, thy Quran, modesty,
thy circumcision, civility, thy fasting, so shalt thou be a Musulman.”’ Nanak
laid emphasis on the purity of character and conduct. He prescribed a high
ethical code rather than any dogma as the only means to attain salvation.

13. Yusuf Hassan, op. cit., p. 24.

X] MEDIEVAL INDIAN SOCIETY 247

He disapproved image worship and the differentiation between man and man
on the basis of caste or creed. Through simple hymns, he preached his cath-
Olic views. By questioning the authority of the Vedas and Quran, he taught
his followers to chant the name of the infinite God who surpasses all con-
ceptions. The Hindu sastras formed the basis of his doctrines and he refers
to the current social evils in a far milder language. His temper was charac-
terised by humility and not by vanity. This explains why his views could
find equal acceptance at the hands of the higher castes as well.!4

To become a disciple of Nanak demanded a greater rejection of outward

manifestations of Hinduism and Islam. This was largely responsible for cre-
ating a stronger feeling of community among the Sikhs. Possibly, this was
also responsible for checking the conversion of the Punjab Hindus to Islam,
and for the foundation ‘of a strong and virile community’. Nanak insisted
that the new community must be actively involved in society and not become
another isolated sect.

Both Kabir and Nanak never attempted to bridge the gulf that had al-
ready been created between the Hindus and Muslims by means of an eclectic
ideology which deliberately combined facets of both faiths. What they did
was to lead a new religious group ‘in which God was not merely a remod-
elled version of the concept of Rama or of Allah, but a new concept’. The
new concept was derived from the two existing religious forces, but the two
saints never consciously tried to combine and reconcile them. This explains
why the orthodox Hindus and Muslims were antagonistic towards them,
since they saw them as the propagators of religions.

Though differing in some respects from the views of Ramananda and

Kabir, Chaitanya, a contemporary of Guru Nanak, must be regarded as one
of the greatest saints of medieval India. He introduced esoteric emotionalism
in the Vaisnava faith and popularised it through Kirtanas. He seems to have
followed a middle path in his attitude towards caste. He denounced the dis-
tinctions of caste and creed so far as religious initiation was concerned. His
transparent sincerity and charming personality affected the Hindus and Mus-
lims alike and one of his principal disciples was Haridasa a convert from
Islam. But he is said to have approved the latter’s conduct in not entering
the temple of Jagannatha. or taking his meals with the Hindu devotees.

14. A.B. Pande, op. cit., p. 218.

248 HISTORY FOR LAW STUDENTS [CHAP.

In this period, there was a galaxy of other powerful devotional saints

like Vallabhacharya (1479-1531 A.D.), Namadeva (1400-1430 A.D.) Shan-
kara Dev (1449-1569 A.D.) and in the Mughal period like Janesvara, Tu-
karam, Janatirtha, Vidyadhiraj, Ravidas, Malukdas, Vidyapati, Mira Bai, Sur
Das, Tulsi Das, etc. All these saints and many others gave their messages
to the people from time to time which maintained the continuity of the
popularity of Bhakti Movement throughout the medieval period.

All these medieval saints of Bhakti led a crusade against priestly mon-
opoly. They reformed religion and society and reinterpreted those values
and loyalties which transcend sect, caste and occupations. These were not
only rebels and reformers, but were true saints noted for their astounding
holiness, wide learning and unimpeachable moral integrity. They directed
all their energy in disseminating among the masses the universal message
of love. In doing so they were not only able to educate the masses by their
teachings and discourses, but also contributed a good deal towards the in-
tellectual awakening, social consciousness and regeneration of the country.
In fine, all their attempts to reconcile caste with human brotherhood at the
spiritual, emotional or philosophical level is indeed great.

3. Social Reforms of Akbar

Akbar was the only ruler among the rulers of medieval India who seri-
ously attempted to foster the national feeling in India and for this reason he
has been regarded as national king. G.B. Malleson aptly remarks: ‘‘Pene-
trated with the necessity of finding a system and recognising very gradually
that such a system must be based on mutual respect and mutual toleration
regarding the differences of race or religious traditions, on the union of
interests, on making it absolutely clear that the fall of the keystone to the
arch meant the fall of each stone which went to build up the arch, he sought
during the first 20 years of his reign, discussion with his courtiers and the
learned regarding the system which would best appeal to those sentiments
in the conquered race which would convey to them confidence and convic-
tion.”’ Akbar should be credited with initiating a new policy towards the
Hindus. He had a catholic temper and had noticed in his family courtiers
and subjects worshipping the ultimate reality in a variety of ways and despite
strong ties of kinship and affection were unwilling to make any compromise
in regard to their cherished views and practices. Akbar rightly realised that
the ruling race was in a minority and if their rule was to last long the
reconciliation among the ruled, who were in a majority, was imperative. He
X] MEDIEVAL INDIAN SOCIETY 249

embarked upon a policy of reconciling the Hindus. He recognised that every-

one in his empire had the right to worship god as he thought best. While
in Mathura he noticed that his officers were collecting taxes from the pil-
grims. When asked he was told that this was the tax which the infidels have
to pay and that it is sanctioned by Quran. Akbar, however, remained un-
convinced and felt that it could never be a part of religion to put obstacles
in the path of worship of god and a mere payment of 6 1/4 rupees would
not make virtue of a vice. He, therefore, abolished the Pilgrim tax in 1563
in spite of the opposition from his courtiers who warned him that this
measure would entail the loss of crores of rupees to the royal exchequer. In
doing so, he allowed the Hindus unrestricted freedom to visit their sacred
places. All restrictions on the building of places of worship were removed.

In 1564 Akbar abolished Jizya and began to charge uniform trade tax
from all. This tax was particularly hated by the Hindus as it was a symbol
of their inferiority and involved quite a lot of humiliation. The abolition of
Jizya tax meant that both the Hindus and Muslims came to be considered
as equal citizens of the state. The offices of the state were open to all on
merit and without distinction of caste and religion. In 1579, someone com-
plained to the emperor that the Jizya tax was being still realised in some
parts of his empire, the emperor not only immediately stopped it but also
issued new farmans throughout the empire reiterating its permanent abolition.

Akbar noticed many social evils prevailing in the society for which both
the Hindus and Muslims were responsible. He now embarked upon social
reforms which touched both the communities. He discouraged child marriage
and encouraged widow remarriage among the Hindus. He put a check on
infanticide and prohibited the custom of sati. When he sensed opposition
from the orthodox Hindus, he ordered that no widow should be burnt alive
against her wishes, for which her declaration for voluntarily committing sati
certified by the State official had to be obtained. In 1562, he stopped the
practice of converting the prisoners of war to Islam. He also abolished slave
trade.

Akbar wanted to put an end to the institution of prostitution. But he

soon realised that it was being patronised by his own officials and nobles.
He decided to regulate it. When he built the new capital at Fatehpur Sikri
a separate extension called Saitanghar was formed to house the prostitutes.
An office was set up at the main gates where the state officials were asked
to make note of addresses of people who frequented the extension.
250 HISTORY FOR LAW STUDENTS [CHAP.

Akbar also tried to remove some social abuses prevalent among the
Muslims. He wanted to abolish polygamy practised among the Muslims.
Here he based his arguments on economic and health grounds. His argument
was it is difficult for a man with ordinary means to maintain one wife and
how much difficult it is for him to maintain four wives. Even on health
grounds, he argued, it is not desirable to have more than one wife.

A liberal minded ruler like Akbar did not favour the abolition of purdah
and inter-religious marriages. If a woman was found to be moving around
the streets without a veil, he ordered, she was to be sent to the quarters of
the prostitutes. Similarly, he did not favour inter-religious marriage even if
they were ready to change their religion.

Akbar established separate alm houses for Hindu sadhus and Muslim
fakirs. He respected Hindu sentiments and in 1583 forbade the slaughtering
of animals on certain days in a year. In 1590-91, it is said, he prohibited
the eating of the flesh of oxen, buffaloes, goats or sheep, horses and camels.
For some time fishing was prohibited in 1592. Badauni informs us that the
Emperor avoided garlic, onion, beef, and did not associate himself with men
with beards. He participated in Hindu festivals like Rakhi, Dipawali and
Shivaratri.

Akbar was conscious of the fact that a vendetta against the Hindus could
neither lead to their extermination nor help strengthening of the roots of the
empire. Being brought up in an environment where groups of people prac-
tised religious doctrines which were a medley of Hinduism and Islam, Akbar
considered it prudent to conciliate and befriend the Hindus. In an age of
intense religious fanaticism these reforms of Akbar indeed appear far-reach-
ing and significant.

4. Status and Position of Women

Hindu:

At the very approach of Islam, we repeat, the Hindu society fell on the
defence and greater restrictions on social observances came to be imposed.
The violations of these restrictions were met with severe punishments. This
affected the status and position of Hindu women. The birth of a girl was
dreaded and the daughter was regarded as the root of all misery and the
source of unending trouble by the average householder.'> Some uncultured
sections of the society practised female infanticide. It was however, not
X] MEDIEVAL INDIAN SOCIETY 251

prevalent among the cultured families. All her dreams were concentrated on
proving herself a devoted wife to her husband and in trying to please him.
The religious disabilities from which women suffered from (Vedic study,
sacrament, keeping the sacred fire and so forth) during the earlier period
continued even during the medieval period. Similarly, education was denied
to them and the percentage of literacy among Hindu women declined with
great rapidity. Even the rich and cultured families found it difficult to make
special arrangements for the education of their daughters.

The fear of insecurity of honour of women led to the popularity of early

marriages. Child marriages gained popularity and there are numerous in-
stances of girls being married at the age of six or even less. The prohibition
of widows’ remarriage came to be extended to the child widows. The me-
dieval commentators enthusiastically advocated the custom of sati. This had
an appreciable effect on the society and the custom of sati and anumarana
gradually became more popular. The Rajput women preferred death to dis-
honour and performed Jauhar in large numbers. This is attested to by the
numerous satisatta stones found today in different parts of Rajasthan. They
are similar to the mastikals or mahasatikals found in Karnataka.

Women’s right to inherit the property of her husband was recognised

and the widow’s right to alienate her estate was conceded. The scope of
Stridhana was expanded to include all kinds of property. In normal times
the husband was not allowed to touch this property of his wife. Society was
actuated by a genuine desire to improve their economic lot, and did not
hesitate to adopt measures that considerably curtailed the time-honoured
rights of coparceners. This was indeed a silverline in lower status accorded
to them by the society which imposed on them the system of purdah and
practised polygamy.

Muslim:

The status and position of Muslim women were in no way better when
compared to their Hindu counterparts. Muslim tradition with regard to
women varied according to the country. In general, the Turks gave their
women a good measure of freedom. On the other hand, the Persian women
were improving their position as compared with their Indian sisters. In India,
however, the Muslims followed the older traditions of ancient Persians,
which gave women an inferior position. What is more, with the growth of
15. A.S. Altekar, op. cit., p. 8.
252 HISTORY FOR LAW STUDENTS [CHAP.

general sensuality and sexual indulgence, an unhealthy attitude developed on

all sides. ‘People began to put an exaggerated value on the chastity of women,
exactly in the same measure as they encouraged its absence among men’.

Islam, though a democratic religion, in practice treated women as second

class citizens with the imposition of purdah and sanctioning polygamy. A
Sunni Muslim was permitted to have four wives at a time while a Shia
Muslim had the liberty to have even more wives than four. The Muslim
women had to observe purdah more strictly. In fact a girl began to observe
this seclusion when she approached the age of puberty. A respectable lady
went about in litters and generally attended by male attendants while poorer
or non-aristocratic women went about ‘wrapped up in long garments cover-
ing the heads’ or what is now known as burqa. Women could hold property
and obtain divorce and the latter, in practice, hardly gave any advantage to
women, as she was denied maintenance allowance.!® These virtually meant
slavery to them.

16. In an unparalleled decree the Jamiat Ahle Hadith, an apex body of Muslim religious
scholars, consisting of Sheikh Ataur Rehman, Madani, Sheikh Ubaidur Rehman and
Sheikh Jamil Ahmed Madani, the three Muftis, have declared the pronouncement of
three ‘talaqs’ at one sitting as invalid and ineffective. The fatwa, published on May
21, 1993, in Javida Tarjumaan, a weekly brought out by the Jamiat Ahle Hadith,
has held that if a Muslim husband pronounces ‘talag, talag, talaq’ to his wife at a
single sitting, it will not be considered a divorce under the Shariat and will not in
any manner affect the rights and obligations of both husband and wife. The Muftis
quoting extensively from the Holy Quran, Hadith and Sunnah, ruled that if the
husband pronounced three falags in a row, they would be de jure considered as a
single talaq which was revocable under the Shariat. The two other talags will be
null and void and will amount to ‘making a mockery of the Quran and Sunnah’,
says the fatwa.
According to the Muftis, the legal consequences of such talag, treated as one, was
only that the spouses had to abstain from sexual intercourse, but if the husband
resumed cohabitation, the talaq would be treated revoked and the couple would be
entitled to stay together.
This is for the first time in independent India that a religious decree has struck down
the validity of a purported right widely exercised by Muslim husbands to divorce
their wives.
The Hindu, dated May, 29, 1993.
This fatwa was hailed by the All-India Muslim Women’s Organisation and they
demanded that the Muslim Personal Law Board take positive note of the fatwa issued
by Jamiat Ahle Hadith. The organisation even warned that the Muslim women would
launch a campaign if a decision was not taken by the Board in their favour.
As a sequel to this, the Jamiat Ulema-e-Hind declared on July 1, 1993 that the
pronouncement of falaq three times in a single sitting was valid. While addressing a
press conference on July 1, 1993, Maulana Syed Asad Madani, president of the Jamiat
Ulema-e-Hind, also a member of the All-ndia Muslim Personal Law Board, maintained
that the validity of triple talaq at one sitting was ‘established beyond doubt’ in the
Holy Quran and the Hadith. According to him the Jamiat Ahle Hadith was supporting
the Rafizi sect of the Shias against the majority of the Sunni Muslims.
The Maulana admitted that the system of instant divorce could be termed as
X] MEDIEVAL INDIAN SOCIETY 253

They did not even enjoy religious equality. Their whole status before
God and Man was an inferior one. Women were not permitted to join

unjust to women, but held it was _ nevertheless valid and effective in the light of the
principles of Shariat. In his view, the de facto consequence of an action, however dis-
criminatory it might be, had to be accepted. He felt that there was no need for reform
and the only need was to educate the Muslim husbands. He mooted the idea of the
establishment of Shariat courts in the country which would be empowered to take action
against the erring husbands.
While rejecting the fatwa issued by the Jamiat Ahle Hadith he said that all the four
schools of Sunni jurisprudence — Hanafi, Maliki, Shafai and Hanbali — besides the
majority of companions of the Prophet, the jurists and compilers of the Hadith, were
unanimous in the view that the Muslim woman was divorced if her husband pronounced
‘talaq, talaq, talaq’ to her.
We are told that the final decision on the matter was taken on June 18, 1993, by a
gathering of Muftis and others representing the Darul Uloom, Deoband, the Mazahirul
Uloom, Saharanpur, the Jamia Qasimia, Moradabad, the Madrasa Ameenia, Delhi and
the Jamia Islamia, Varanasi
The Hindu, dated July 2, 1993.
This has led to a great deal of controversy among the Muslim theologians. On July 6,
1993 the Jamiat Ahle Hadith denounced atempts to ‘undermine the significance’ of its
historic fatwa invalidating three falags at one sitting. It accused a section of Muslim
theologians of trying to scuttle reforms in the Muslim Personal Law.
Hafiz Mohammed Zaki Bari, Vice-President of the Jamiat Ahle Hadith, alleged that
the ‘propaganda’ launched by the scholars of the Jamiat Ulema-e-Hind against the fatwa
was meant to mislead Muslims and put the Ahle Hadith sect in the dock. Taking excep-
tions to the statement of Maulana Syed Asad Madani, Hafiz Bari said opposition to the
Ahle Hadith’s stand was an attempt to deny the rights of Muslim women guaranteed in
the Quran. According to him, the Jamiat Ulema-e-Hind being an apex representative
body of all Islamic sects and schools of thought could not side in this manner with only
one school — Darul Uloom Deoband — on a matter which had a serious bearing on the
community. His allegation was that Maulana Madani was exploiting the platform of the
Jamiat Ulema-e-Hind for ‘personal gains’ by siding with the Deoband school to announce
that the pronouncement of three falags in a row was irrevokable. He maintained that
Maulana Madani’s support to the Deoband school to denounce the enlightened interpre-
tation of the divorce law by the Jamiat Ahle Hadith had raised doubts that he had con-
verted the Jamiat Ulema-e-Hind into a ‘family fiefdom’.
Other scholars of the Jamiat Ahle Hadith, including Mohammed Sulaiman Sabir, Mufti
Ataur Rehman Madani, and Shakil Ahmed have raised objections to Maulana Madani
raking the old controversy of Ghair Mugallid (readers of the Quran and Sunnah without
a via media) and say that the attempts to create divisions on these lines would harm the
community. According to Sulaiman Sabir, Madani’s reference to a Hadith (saying of
Prophet Mohammed) disapproving of triple falaq at a sitting as ‘munkir’ (unreliable)
was highly objectionable. Citing an instance he argued that the Sahih Muslim (compi-
lation of Hadith by a scholar) had clearly mentioned that the Prophet, when told of a
person who divorced his wife thrice in one sitting, stood up in anger and said the people
were making fun of the Holy Book revealed by God. Hafiz Bari contends that a careful
perusal of the Quran and Hadith clearly demonstrates that reconciliation was an integral
part of the divorce law. He asks. ‘‘If you knock down the marital bond in one stroke,
what is the use of reconciliation provisions?’’
(contd.)
254 HISTORY FOR LAW STUDENTS [CHAP.

them in public worship nor they could take part in public life. The instance
Razia Sultana demonstrates how men were not prepared to reconcile to the
rule of woman. The rule of Chandbibi, Begums of Bhopal and Mughal prin-
cesses like Jahanara and Roshanara who played an active part in politics
from behind the purdah were great exceptions to the rule. There were also
distinguished and cultured women in the Mughal royal household like Gul-
badan Begum, daughter of Babur, who wrote Humayun-nama, Jahanara,
daughter of Shahjahan and Zeib-un-Nisa, daughter of Aurangzeb, who were
poetesses. Such instances being few and for between would not help us to
arrive at a general conclusion about the position of Muslim women. In fact,
these compositions are not noted for their literary quality. For Humayun-
nama ‘abounds with spelling mistakes and clumsy sentences. Even the
poems of Zeib-un-Nisa and Zinat-un-Nisa do not rise so high in poetic ex-
cellence as those of contemporary male authors’.!”
There were no proper facilities for women education and few had any
education. In consequence, Muslim women were unable to exercise whatever
the rights that were allowed to them by Muslim Law. Therefore, the status
and position of Muslim women were as deplorable as their Hindu sisters,
though, in theory, the former enjoyed better legal rights which they never
exercised.
Medieval Indian Society was gripped with a serious crisis, the like of
which it never witnessed before, and it never appear to have made any
meaningful attempt to solve it. Clearly, the society came to be divided among
the Hindus and the Muslims. The honest attempts made by the Bhakti saints
to bridge the gulf between the two communities met with only partial success
and the social reforms initiated by Akbar did not survive him. The two
communities remained distinct for over nine centuries and the reciprocal
(contd. from previous page)
Tracing the history of instant divorce, Hafiz Bari says, as against the Quranic injunctions
to pronounce fa/aq over a minimum period of three months, the system of instant divorce
was adopted during the time of Oman, second Caliph, to meet an extraordinary situation
of the marriage of Arab men with women from Syria, Egypt, etc. Stating that ‘ijtihaad’
(innovation) was recognised in the Shariat as a valid method of development of juris-
prudence, he says it could be used today to abolish triple talaq at one sitting in keeping
with the moder times. He regrets that there was no theologian with a broad vision in
the Deoband school who could take a bold initiative to abolish an arbitrary system of
divorce which was repealed by Islam 1400 years ago.
The Jamiat Ahle Hadith which has a following of over crores of Indian Muslims has
extended full support to the Muslim Personal Law Board in reforming the divorce laws
in confirmity with the modern times.
The Hindu dated July 7, 1993.
17. The Mughal Empire, p. 708.
X] MEDIEVAL INDIAN SOCIETY 255

influences were too superficial to fundamentally alter the structure of the

Hindu society. ‘*So the two great communities, although they lived side by
side, moved in their own orbit, and there was as yetno sign that the ‘twain
shall ever meet’.’’!®

1 away fon vileigomeodm

Hag ewes SV gyi an
nae Soin. a) PR Ta FIPS OK 6 Rae | LAK £4
od Of agus J] eet: BN YOU Aw) oe MBA) Ro W
uf Bes ie ismheparan OF ti ligt Biss a4 GE“ a ee
2 2559yal preizied! yi ona9 Matiio.ct Hiei
one * Ase cages segue 1S persis
| epsainsinna il

- > ay rjc, leeree

77

My <5 OS
’ Bint mt SEVP
tiie peti w hic
> ohne | ste y ‘ =
* é = ¢ . »
 Chapter XI

Law and Legal Institutions

and Judicial Organisations

Tre Hindus and the Muslims attached supreme importance to the

principles of their faith and their sacred scriptures served as guides to
regulate their social relations and political organisation. Bound as they
were to their respective faiths they were temperamentally not ready to
accept the laws framed by any human agency. We have noted how
Kautilya was dubbed a revolutionary for advocating the supremacy of
the rational law over the sacred law. But through centuries, it came to be
felt that the Vedic hymns are difficult to comprehend and more so to
relate to current practice. Therefore, Vedas became inadequate for the
regulation of large segments of social life which had become more
intricate and complex. The result was the law codes (dharmasastras)
composed by the law-givers, and their ordinances achieved a stature
comparable to that of the Vedas. This development is true of the Islamic
law as well.

1. Sources and Character of Muslim Law

The Islamic government and society was based on the Shar, or
Islamic Law. Shar’ was the legal sovereign and everyone, the rulers.and
the ruled were not above the law but subservient to it. Muslims consider
Shar’ as divine, eternal and immutable. “This”was so Universally
recognised that there are cases on record in which subjects have sued
monarches in ordinary courts of law’. This demonstrates the supreme
reverence with which they had held the sacred law.
In the history of Islam, law has been divided into Shar’ and Urfi.
1. The Shar’: The Shar’ which is based on the principles enunciated
by the Quran has three principal.component elements, viz., the Quran,
“Hadis and Ijma. The Quran is the most important sourceof law and the
Quranic-injuriction has an overridding authority over all other factors.
But this Holy Book does not enunciate principles of law in very exact

[ 256]
 LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 257

and precise terms. As time passed by social problems grew more intricate and
complex and the governance became difficult on the basis of the revealed book,
which laid down only broad principles of social life. This difficulty was over-
come by incorporating Sunnah or Hadis as a source of law next to Quran.
The Quran was revealed to mankind through the agency of Muhammad.
It is, therefore, natural for mankind to venerate him. But the Muslims regard
him as /nsan-i-Kamil or the perfect man.' The Muslims hold that Prophet
Muhammad was ‘the best interpreter’ of the Quranic revelation. Therefore,
what he said, did, acted, or did not oppose are considered to be of vital
importance and required a special sanctity. After careful research scholars have
agreed upon a collection of traditions which were regarded as authentic and
this collection is called the Sunnah or Hadis. The Sunnah is regarded as the
best interpretations of the law and has played an important part in-the devel-
opment of Shar’ because wherever the Quran is either silent or does not-contain
a Clear injunction, the authority of the Sunnah or Hadis is sought.
In the course of its later development Muslim society was confronted
with new problems as the existing law was inadequate to solve them. Hence_
two other sources were drawn upon. These were the /jma and Qiyas. Iima
or the consensus of opinion of the most eminent theologians of Islam was.
accepted as the right solution. It was agreed that wherever legal opinion is
unanimous regarding the interpretation of a verse of the Quran or a tradition
of the Prophet it is not safe to differ. Unless the judge has very strong
reasons to differ from an interpretation which has received universal approb-
ation, he is expected to concur.” The Qiyas were the analogous inferences
based on the Quran, the Hadis. Among all these sources, ‘‘the Quran and
the Hadis were considered the most valuable and were described as the
Usul-ul-usual or the ‘bases of the bases’ of Islamic jurisprudence’’.
It follows from what has been described above that interpretation plays
a significant part in the development of the Shar’ law. The Shar’law is
made up of a recognizable amount of ‘judge-made law’. This need arose
due to the application of the principles of Quran and the teachings of the
Prophet to the complex, growing and the changing society and it was found
necessary for the advocates and judges to interpret and reinterpret these
principles and teachings.’ Matters which are regarded as an essential element
of religion, such as marriage, succession, inheritance and so forth came under
the purview of Shar’ law.
2. The Urfi Law : In-the development of Islamic jurisprudence may be
mentioned the rules and regulations issued from time to time, by rulers of

1. A.B. Pande, op. cit., p. 160.

2. The Delhi Sultanate, pp. 456-457.
3. Ibid, p. 457.
258 HISTORY FOR LAW STUDENTS [CHAP.

different Muslim States. These regulations were based on justice and fair
play and mostly related to matters like trade, property, war, taxation and the
like. These have come to be collectively known as the Urfi law. A judge
was allowed considerable discretion in the interpretation and the application
of the Urfi law. The judge, however, had no such discretion in the interpre-
tation of the Shar’ law and he had to abide strictly by the views of the
approved learned jurists.
Still later, considerable complexity arose due to the conflicting inter-
pretations by numerous learned jurists (mujtahids) ‘who held divergent opi-
nions with regard to legal points and other matters that were not covered
by direct injunctions of the Quran or the Hadis’. Consequently there grew
up many well-defined schools of law, whose commentaries on Muslim Law
were based on their interpretations on an exhaustive study of the Quran,
the Hadis, the Ijma and the Qiyas. Each school was marked by its own
distinct characteristics, some were fundamentalists and others were rationa-
lists of different hues. Of the important schools or law, leaving aside the
Shiah and Khariji sects, which were founded as the result of political cleav-
age, mention may be made of four main schools of law. These schools were
evolved of orthodox Islam, called generally Sunnism and they are considered
as the most authentic schools of law.
These are :
1. The Hanafi School founded by Abu Hanifah (699-767 A.D.)
2. The Maliki-School founded by Malik ibn Anas (713-797 A.D.)
3. The Hanbali School based on the teachings of Ahmed ibn Hanbal
- (780-855 A.D.)
4. The Shafi School founded by Muhammad ibn Idris-ash-Shafi
(767-8 Bey
ease
Of these four schools, the Hanafi and Shafi schools gained greater popu-
larity and even now the Hanafi School is followed in Northern India. The
Hanafi School gives greater importance to rational deduction and it was
greatly strengthened by the two immediate disciples of Imam Abu Hanifah,
one of whom, Imam Abu Yusuf, has left an important treatise on the law
governing the State demand on agricultural produce and agrarian adminis-
tration. This school had the most liberal attitude towards non-Muslim in-
habitan ts Empire. The
of @ Muslim Hafiba tiand
the Malik? SCHOOIS are more
fundamentalists.*
The Shafi school is followed only by a few in India.
4. M. Rama Jois, Legal and Constitutional History of India, Vol. Ul, p. 9.
5. The Dethi Sultanate, p. 457.
XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 259

That Muslim Law is primarily religious becomes evident from the fact
of its origin and therefore the secular laws become subservient to the ca-
nonical law. The basis of Islamic legislation is ethical and not legal. As has
been shown by Joseph Schacht, the Quran does not ‘‘lay down legal for-
mulas, but indicates what is right conduct and what is wrong’’.® This explains
why ‘the Islamic law is not susceptive of change or growth’. Hence in the
development of Islamic law the constant interpretation and reinterpretations
have played a significant role. They have also helped soften the rigidity of
the law. The Urfi law have been sometimes accepted by the Muslim learned
jurists as the fait accompli and recognised as legal enactments. For instance,
when Muhammad bin Qasim accorded the status of Zimmis to the Hindus
of Sind and Multan, which was hitherto the special privilege of Christians
and Jews, Abu Hanifah recognised this as a legal enactment.’ It is no doubt
true that such instances of ‘‘accommodating character were rare, but they
were there and on account of circumstances some time made Islamic what
was originally considered un-Islamic’’.’ Since the Muslim law was based
on trans-Indian source, no Indian jurist, however learned and eminent he
may be, ‘was considered competent enough to come forward with a bold
interpretation of the above type’. Further, he was not considered capable of
laying down a legal principle or elucidating any obscurity in the Quran or
supplemeniing the Quranic law, “‘by following the line of its obvious in-
tention in respect of cases not explicitly provided by it’’.? The same Muslim
Law was in force during the rule of the British in India and ‘‘continues to
be in force by virtue of Article 372 of the Constitution to the extent it was
in force prior to the commencement of the Constitution and subject to the
provisions of Legislations enacted by the appropriate legislatures’’.!°

2. Muslim Law and Non-Muslims

Three broad principles in respect of the responsibility of the non-Muslim
residents in an Islamic State are recognised by the Shar’ Law. Since the
Zimmis did not actively support the Muslim State but merely accepted its
authority, they had to refrain from rebellion and pay Jizya tax. They were
exempted from this tax by rendering active support to the State by enlisting
themselves in the army or joining civil service. The Zimmis were exempted
from the application of the personal law of Islam. As they were ‘the protected

6. Origins of Islamic Jurisprudence, p. 384.

7. The Mughal Empire, p. 538.
8. A.L. Srivastava, Akbar the Great, Vol. Il, p. 264.
9. The Mughal Empire, p. 538.
10. M. Rama Jois, op. cit., pp. 9-10.
260 HISTORY FOR LAW STUDENTS [{CHAP.

and allied peoples’ of the Muslim State, they were ‘free to maintain their
institutions, their forms of worship, their personal law and, if they so desired,
their own organs to impose their personal law’.'! The Zimmis were given
the choice to choose either a Muslim court or their own courts. But the
Muslim courts took up cases where the litigants differed in religion. In cases
where the litigants happened to be non-Muslims the advice of men learned
in that law was taken by the court. In all cases where the litigants differed
in religion, even though one of the parties to the dispute was a Muslim,
decisions were pronounced on principles of equity. In respect of criminal
code the problems involved in its universal application were solved by the
Muslim jurists before the advent of Islam into India. ‘“They laid down that
the Islamic criminal code was to be applied, but where it came into conflict
with the moral notions of the Zimmis, it should not apply to them, if such
a procedure could be adopted without danger to the State or Society’’.'* For
instance, the voluntary observance of Sati was not considered as an offence.
The different schools of Muslim Law recognised Muslims alone as the
citizens of an Islamic State and the non-Muslims were not allowed to enjoy
the same rights as Muslims. The Law for the Hindus ‘was Islam or death’.
The Hanifah school grants only second-grade citizenship to the Zimmis and
imposed on them some legal and political disabilities which extended to
even wearing of clothes and riding the horse. ““‘They were discriminated
against in matter of testimony in the law courts and in marriage and also in
the matter of protection under the criminal law’’.!> They were subjected to
pay land revenue and other taxes at double the rate than paid by the Muslims.
The Sultans of Delhi found it difficult to enforce the Muslim Law in its
letter and spirit and the attempts of some Sultans to enforce their strict ob-
servance were not met with success. This is not to say that the Hindus could
freely observe their own laws and customs, but the prevailing atmosphere
made it necessary for the Sultans to effect a compromise with the law of
the land. Nevertheless, in the administration of justice the Hindus were not
treated on par with the Muslims.

Changes under Akbar:

Akbar was more farsighted and original than his predecessors. He pos-
sessed a large measure of humanity in his character and hated pride and
arrogance. In his desire to emancipate India from the thraldom of the religion
of a minority and extricate her from the clamps of theocracy repealed the

11. This rule was never in practice in India.

12. The Delhi Sultanate, p. 458.
13. J.N. Sarkar, Aurangzeb, Vol. Ill, pp. 265-267.
XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 261

Islamic law in regard to non-Muslims. In 1562 Akbar repealed the law in

respect of converting the prisoners of war and those of their families into
slaves and Muslims. In 1563 he abolished the pilgrim tax paid by the non-
Muslims and in the following year the much hated Jizya tax. All the other
Islamic laws which imposed social, religious and legal disabilities on the
Hindus were repealed one after another.
Akbar’s restless mind did not leave any aspect of human life untouched.
He did not rest content until he had solved problems — be they religious
or social. He desired to fuse together the different classes of his subjects by
bonds of a common citizenship and to establish a secular state. Therefore
he accorded recognition to all the religions existing in the land to carry on
legitimate religious propaganda and proselytism. By an ordinance he per-
mitted the building of temples and other religious structures. By an another
ordinance (1580) the Hindus who were forcibly converted into Islam were
permitted to revert to the religion of their forefathers. This facility was ex-
tended to Hindu women who were forcibly married to Muslims. A far more
revolutionary ordinance led to the repeal of the law imposing punishment of death
for criticising the religion of Islam or the conduct of Prophet Muhammad.'4
Akbar also amended the personal laws of the Muslims and Hindus.
Contrary to the view expressed by Ibn Hasan.!> Akbar introduced vital
amendments relating to marriage and divorce. Akbar ordered that a Mussal-
man can take a second wife only if the first one is barren. A Muslim woman
was not allowed to remarry if she ceased to have menses. Similarly marriages
between the cousins and near relatives were forbidden. He fixed the mar-
riageable age for boys and girls at 16 and 14 respectively. Prohibition was
imposed on the observance of the rise of sunnat or circumcision before the
age of 12 and even then left it to the option of the boy. These laws were
enforced by the Kotwals in the cities.'®
The marriage laws were made applicable to the Hindus as well. Hindu
women, if they so desired, were permitted to remarry and voluntary sati
observance was allowed.
Akbar removed all legal disabilities imposed on the Hindus and ex-
tended the scope of the common law by prescribing uniform rates of land
revenue and other taxes, Correspondingly the scope of the Muslim juris-
prudence began to shrink paving the way for the establishment of one com-
mon legal system.

14. The Mughal Empire, p. 540.

15. Central Structure of the Mughal Empire, p. 308.
16. The Mughal Empire, p. 538.
262 HISTORY FOR LAW STUDENTS [CHAP.

Many of these reforms did not survive Akbar. His son revoked the
amendments relating to the personal law of the Muslims. Shah Jahan with-
drew permission for the construction of new temples and repairing of old
ones. Aurangzeb who was interested in making the empire an Islamic State
restored the supremacy of the Shar’ law. By the time we come to the end
of the Mughal rule all the laws that were in operation prior to the reforms
of Akbar had been restored.

3. Criminal Law and Punishment

It was the Mughals who introduced the Muslim law of crimes for pur-
poses of administration of Criminal Justice. It was not only in force during
the Mughal age but also for over hundred years during the British rule.
Aurangzeb who was interested in enforcing Islamic law appointed a syndi-
cate of learned theologians to prepare a comprehensive legal digest and they
composed Fatwa-i-Alamgiri. The farmans on criminal law issued by Au-
rangazeb supplement the theoretical Muslim criminal law."

Salient features of Islamic Criminal Law:

Under the Islamic jurisprudence three kinds of offences, namely of-
fences against God, offences against the State, and offences against the pri-
vate individuals are recognised. Offences against God include apostasy,
heresy, and criticising the religion of Islam or the conduct of Prophet Mu-
hammed. These offences were punishable with death. There is no unanimity
among the Muslim schools of law regarding punishment to women offenders.
While Hanafi School prescribes imprisonment, the other three schools favour
capital punishment to women offenders. Death penalty is prescribed for heretics.
The law of Islam compounded offences against the State and private
individuals. The usual punishment for murder was death. But it could be
compensated with money if the deceased man’s relatives did not insist on
retaliation. If the relative refused, the case was decided by the Qazi’s court.
For murdering a non-Muslim a Muslim was not put to death if the latter
had not killed the former treacherously. The punishments for various crimes
were classified into four broad categories under the Muhammadan law. They
are Hadd, Tazir, Qisas and Tashhir. Literally Hadd means boundary or
limit or barrier. In legal parlance, it means the punishment as has been
exactly prescribed by the Quran or the Hadis. Since the punishment is
prescribed by the canon law and is considered to be the right of god it could
not be altered. The nature and gravity of punishment was fixed and neither
nature could be varied nor gravity increased or decreased. Hadd prescribes

17. The Mughal Empire, p. 544.

XI] LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 263

definite punishments for such crimes as adultery, fornication, false accusation

of adultery, apostasy, drinking of wine, theft, highway robbery and robbery with
murder. The following are the punishments prescribed for various crimes:

; Crimes Punishments
1. Fornication (sexual relations be-_: 100 strokes of the whip
tween unmarried persons)
2. False accusation of a married =: 80 strokes of the whip
person with adultery
3. nett Loss of right hand
4. Robbery Loss of hands and feet
5. Robbery with murder Death
6. Drinking wine 80 strokes of the whip
7. Apostasy ve “eDeat

Severe punishments are prescribed for the Hadd category of crimes.

Similarly, strict procedures are prescribed for proving the guilt. Depending
upon the type of crime, for convicting the guilty evidence of four to two
competent eye-witnesses of proven credibility is insisted upon. Four eye
witnesses were considered necessary for proving the guilt of illicit inter-
course. In view of this it was not easy to secure conviction, under this ca-
tegory of crime.!?
Tazir means censuring. It was a corrective doctrine in that the punish-
ment was awarded with a view to reform the culprit. It took cognizance of
such offences as ‘the use of abusive language, forger of deeds or letters,
bestiality, sodomy, offences against public peace and tranquillity, decency,
morals etc.” not covered by Hadd. All were not equal under this category
of crime and punishment varied according to the social status of the accused.
‘Men of high rank, who were guilty of proved offences, were to be let off
with a warning. Merchants were sent to prison, and common people were
punished with strokes of the whip’. The type and quantum of punishment
to be awarded was left completely to the discretion of the judge.
Qisas means retaliation. In principle it meant a hand for a hand, a foot
for a foot, a nose for a nose, a tooth for a tooth and a life for a life, an eye
for an eye, and so forth. Such punishments were inflicted on an offender
who caused a grievous injury short of death. For murder death was the

18. The Mughal Empire, p. 543.

19. M. Rama Jois, op. cit., p. 11.
264 HISTORY FOR LAW STUDENTS [CHAP.

penalty if the kin of the murdered or other claimants demanded it unani-

mously. It could also be compensated with blood money (diya). We may
here refer to a case related by Manucci which occurred during the rule of
Aurangzeb to understand the true implications of this offence. The traveller
records:
‘*There was a woman who came to him (Quazi Abdul Wahab, who was
the Quazi of Agra during the time of Moghul Emperor Aurangzeb) requiring
the condemnation of a young man then in the custody for having slain her
husband. The Quazi in a mild tone counselled her to forgive, and if she
would listen to him, he would advice her to marry the man or else some
other, should she object for having the murderer. The woman consented to
the proposal. The young man was released and she married him. Seeing this
easy way of proceeding, I took the liberty to say to the Quazi that the
sentence he had pronounced was likely to be the cause of several murders
for there being many women who were not content with their husbands,
they would procure their murder by the hand of their lover in order to marry
again at once with the latter. He admitted the force of what I said, but he
made me laugh at it and said it was a charity to secure a benefit to the
young man and save his life. But if the woman had persisted in her com-
plaint, he would have condemned him to death.’’”°
Tashhir was an un-Islamic but an ancient Indian punishment which was
continued in the medieval period. This meant causing disgrace to the offen-
der by parading him on an ass with the face turned towards the tail. Some-
times the culprit’s head was shaven and face blackened and then paraded.
This form of punishment continues even at present. It was also retained by
the Mughals. We are told that Jahangir once gave this punishment to imperial
officers for dereliction of duty. The heads and beards of the officers were
shaved off, and they were paraded on the asses dressed in female attire.”!
The Emperor dealt with such offences as misappropriation, default in
the payment of revenue, rebellions and so forth according to his pleasure.
There are numerous instances of such offenders being trampled to death by
the elephants or bitten to death by a cobra. Tortures of various kinds were
employed to elicit confession. A detailed analysis of the Islamic Criminal
Law reveals many limitation. In this system the criminal law is treated ‘as
a branch of private law than of public law’. M. Rama Jois remarks: ‘‘The
principle governing the law was more in the nature of providing relief to
the person injured as in civil matters rather than to impose penalty for the

20. Stocia do Moger, Vol. Il, pp. 419-420, quoted in M. Rama Jois op. cit., pp. 10-11.
21. The Mughal Empire, p. 544.
XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 265

offence committed.... Though for the offences against individuals the State
imposed the penalty still the purpose was only to secure relief to the party
injured rather, than safeguarding the interest of society. It was for the private
persons to move the State machinery against such offences and the State
would not suo motu take cognizance of the same and this is a Fundamental
Defect of Muslim Criminal Law.’’”* For one versed with modern legal sys-
tem certain aspects of Muslim Law may appear strange and illogical. Murder
is treated as a crime against individual but not a heinous crime, while drink-
ing wine is treated as a crime against society and hence forms a public
wrong. As Manucci feared in the case quoted above by vesting the respon-
sibility in the kins or relatives of murdered to initiate action and providing
for compromise, the whole procedure gave cause to several crimes. ‘‘Ac-
cording to a Fatwa delivered in March 1791, one Mongol Das murdered
his wife and one of her heirs gave pardon and therefore no death sentence
could be inflicted at the instance of other heirs and they had no alternative
than to receive ‘‘Diya’’ (blood money).”? The system was highly criticised.
In the words of Warren Hastings: ‘‘Law of barbarous construction, and con-
trary to the first principle of civil society, by which the State acquires an
interest in every member which compares it and a right in his security. It
is a law which it rigidly observed, would put the life of every parent in the
hands of his son, and by its effect on weak and timid minds, would afford
a king of preassurance of impunity in those who were disposed to become
obnoxious of it.’’*4
The Muslim Criminal Law no doubt makes a distinction between murder
and culpable homicide, but the latter did not rest on intention but on the
method. If a murder took place without the use of sharp weapon and spilling
the blood it as viewed as a culpable homicide.”
Similarly, ‘the law of evidence prescribed for proving the crime was
highly technical and irrational’, among the rules of evidence the following
deserve to be mentioned:
(1) ‘‘No capital sentence could be inflicted on a Muslim on the evi-
dence of a non-Muslim;
(2) In other cases, evidence of one Muslim was considered as equi-
valent to two non-Muslims;

22. M. Rama Jois, op. cit., p. 12.

23. Ibid, p. 13.
24. Quoted in M. Rama Jois, op. cit., p. 13.
25. Killing a person by drowning or strangulating or poisoning, or any other method
without spilling the blood was considered as a culpable homicide.
266 HISTORY FOR LAW STUDENTS [CHAP.

(3) Evidence of two women was considered equivalent to that of one

man;
(4) Evidence should be direct viz., that of eye-witnesses only and not
circumstantial and further specified number of witnesses was a
must to secure conviction. For instance for proving offence of
rape not only eye-witnesses were necessary but also four such
witnesses were insisted;
(5) For proving theft, evidence of two men or one man and two
women was necessary;
(6) For securing sentence of Kisa (Qisa) direct evidence of two com-
petent eye-witnesses were necessary;
(7) Evidence of women was inadmissible to prove a charge of murder
and in all cases of Hadd or Kisa’’*®
The Law of Evidence rendered the proof of the guilt extremely difficult.
As a writer aptly puts it: ‘“‘As a system the Mohamedan criminal law is
mild; for though some of the principles it sanctions are barbarous and cruel,
yet not only is the infliction of them rarely rendered compulsory on the
magistrate but the law seems to have been framed with more care to provide
for the escape of criminals than to found conviction on sufficient evidence
and to secure the adequate punishment of offenders.’’”’
All were not equal in the eyes of law. For certain offences punishment
was dependent on the social status of the accused. The principle of equity
of justice was thus given a go by. Further, it was left to the judge to deter-
mine the nature and gravity of the offence and the punishment. This did not
work satisfactorily. In 1802 Murshidabad court pointed out that for heinous
offence of gang robbery in some cases the culprits were inflicted with im-
prisonment for 14 years and in some others two years.7® Thus the Muslim
criminal law with these shortcomings had few things to commend itself to
the public at large. There is no wonder if the confidence of the public in
the law courts was shaken.

Judicial Organisation
The Sultans of Delhi and the Mughals sought for their judicial system
models from outside India — from Arabia and Syria, Persia and Egypt, and
effected necessary changes to suit Indian environment. The head of the State,
the Sultan or the Emperor was regarded as the foundation of justice and the
final tribunal of appeal. The Emperor administered justice in person in open

26. M. Rama Jois, op. cit., p. 15.

27. Ibid, p. 15.
28. Ibid, p. 16.
XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 267

court and decided all types of cases. He was assisted in dispensation of

justice by the chief Sadr (Sadr-us-Sudur) regarding cases of religious nature
and by the chief Qazi (Qazi-ul-Quzat) in all other cases. But, as the chief
Sadr or the chief Qazi was mostly one person, he remained the chief adviser
of the head of the State in judicial matters. The chief Qazi stood next to
the Sultan or the Emperor in the judiciary and under him were the Qazis
in provincial capitals, in the headquarters of districts and parganas and all
important cities within the empire as also in big villages having considerable
Muslim population and large enough to be called gasbas. These were ap-
pointed by the emperor on the recommendations of the chief Qazi. They
decided cases falling within their jurisdiction, more particularly ‘religious
cases mostly dealing with the personal law of the Muslims, such as cases
of marriage, divorce, inheritance and the like. They were also in charge of
pious endowments (augaf) of land, property or cash for religious and cha-
ritable purposes.*? Sometimes, muftis (people who interpreted Islamic laws)
were appointed to assist the Qazis. In addition, they performed such duties
as Officiating at Musalmans’ marriages, appointing guardians to look after
the property of orphans, disabled and other handicapped Muslims, and ar-
ranging for the marriage of Muslim widows or Muslim orphan girls. In other
words, the Qazis were entrusted with care of orphans, widows and destitutes.
The criminal cases were decided by the Emperor, the provincial Qazi, the
Governor, the Faujdar (Faujdari Adalat) and Kotwal. Petty criminal cases
relating to theft or rioting in the pargana town were assigned to the local
Kotwal. In course of time a whole-time Qazi was appointed to try criminal
cases within the pargana. The Faujdar also possessed some criminal juris-
diction. His powers were analogous to those of modern magistrates. The
courts of the Governor (Qazi-i-Sarkar) and provincial Qasi had also original
jurisdiction in addition to hearing appeals against the decisions of the
Faujdar and Kotwal. The third category or courts were the revenue courts.
The Amils in the parganas, Amalguzars in the Sarkars and provincial and
central Diwans respectively decided revenue cases. Adjudication was not
the prime duty of these officers. In medieval period there was no watertight
separation of the executive and the judiciary and therefore these executive
officers engaged in the Department of Finance and Revenue were assigned
judicial functions relative to their official duties. Their special knowledge
of revenue affairs was the sole criterion for their appointment as judges in
revenue cases.*” Besides, there were large village and caste or guild pan-

29. The Mughal Empire, p. 545.

30. A.B. Pande, op. cit., p. 162.
268 HISTORY FOR LAW STUDENTS [CHAP.

chayats which decided all kinds of cases — religious, civil and criminal
filed by the Hindus in their respective villages. These cases were decided
according to customary Hindu law and usage and the decisions of the pan-
chayats were recognised by the State. In fact the panchayats worked suc-
cessfully during the medieval period. Though there were different types of
courts, the area of their jurisdiction and their relations with each other were
neither clear nor definite.

4. The Royal Court

It was an ancient ideal to hold the court regularly and in conformity
with it both the Hindus and Musalmans considered it as obligatory to hold
open court. The Sultans of Delhi used to hold judicial court twice a week.
The general practice under the Mughals was to dispense justice in the open
court on the evening of every Friday; but the day of holding the open court
varied with the Emperor. The first two rulers of the Mughal dynasty Babur
and Humayun were very keen on discharging this particular duty. The bio-
grapher of Humayun informs us that the emperor introduced ‘the drum of
justice’. He further tells us “‘that a drum was placed near the audience hall
and complainants were required to strike it so as to make their complaints
reach the emperor. If a complainant gave the drum one stroke, it indicated
a petty dispute; if two, it meant non-payment of wages or salary; if three,
it meant a dispute about property and if four, it indicated the shedding of
blood’’.*! Akbar was accustomed to spend several hours of the day in the
disposal of judicial cases and appeals, and sometimes would order the trans-
fer to his own tribunal of original civil suits of importance. In addition to
holding open court every morning at the Jharokha Darshan, every Thursday
he held open court exclusively for administration of justice. In this Thursday
open court all the high judicial officers like the chief Qazi, muftis, other
important law dignitaries and the Kotwal were present. He personally as-
certained facts about every case and pronounced judgment after consulting
the law officers. According to Abul Fazl: ‘‘He (Akbar) opens the gates of
justice and holds an open court. In the investigation into the cases of the »
oppressed, he places no reliance on testimony or on oaths, which are the
resources of the crafty, but draws his conclusions from the contradictions in
the narratives, the physiognomy, and sublime researches and noble conjec-
tures. Truth takes her place in this centre. In this work he spends not less
than one and a half pahars (i.e. four and half hours).’’*? Akbar alone in-
sisted while deciding the cases of the Hindus, their traditions should also
be cared for. He had appointed Hindu pandits as well to decide cases of
the Hindus. Akbar was a great lover of justice. He is reported to have de-

31. The Mughal Empire, p. 546.

32. Ibid, p. 546.
XI] LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 269

clared that “‘If I were guilty of an unjust act, I would rise in judgment
against myself.’’*
Jahangir followed the practice of his great father, Akbar and in that he
was the worthy son of a worthy father. He listened to complainants and
administered justice every morning and set apart every Thursday for holding
open court for the administration of justice. Terry speaks of Jahangir ‘moder-
ating (i.e., meditating) in all matters of consequence which happen near his
court, for the most part judging secundum allegata et probata’.** We are
told that, ‘In parading his love ofjustice he out did his grandfather Humayun
and hung a chain of gold from the balcony of his Juarokha Darshan to a
pole fixed outside the Agra fort to which suitors for justice could tie their
petitions which were drawn up and placed before Jahangir.’’*> Shah Jahan
listened to the complaints every morning and held his open court every
Wednesday in the Diwan-i-Khas, and after hearing the plaints reported by
his judicial officers in the presence of the parties, and ascertaining the law
from the Ulema (Canon-lawyers), pronounced judgment on the facts sub-
mitted to him. Aurangzeb, likewise, dispensed justice daily in his private
chamber (Khil Watgah) and held open court every Wednesday. Aggrieved
persons were led into his presence by the officials of the justice department,
were personally examined, and had their cases decided either in accordance
with Quranic injunctions, where these were applicable, or otherwise, ac-
cording to custom and the Emperor’s discretion.*° Aurangzeb, in course of
time, found it extremely difficult to investigate into the cases personally and
therefore, he issued orders to the governors to dispense with justice or “send
parties to the capital with their reports’.
The Mughal emperors were the lovers of justice. The Emperor was the
Khalifa of the age, J.N. Sarkar remarks: he was ‘‘the highest court of appeal
and sometimes acted at the first instance too.’’ He decided both civil and
criminal cases personally and this arrangement remained undisturbed even
when the Emperor was on tours or engaged in military expeditions. Both
Akbar and Aurangzeb took special care to keep the judiciary honest, effi-
cient, just and industrious. The rulers of this period did not permit judges
to impose the penalty of death on any person without their concurrence.
‘The standing instructions were that no one was to be executed until the
emperor had given his orders for the third time’.

33. Edwards and Garrett, The Mughal Rule in India, p. 192.

34. Ibid, p. 191.
35. Quoted in The Mughal Empire, p. 546.
36. J.N. Sarkar, Studies in Mughal India, pp. 14-65.
270 HISTORY FOR LAW STUDENTS [CHAP.

5. The Chief Qazi

Next to the Emperor was the chief Qazi, called Qazi-ul-Qazat, who
combined the office of chief Sadr, was the highest judicial officer of the
country. Though primarily a judicial officer, he performed civil, religious
and clerical duties. As a revenue officer, he collected the Jizya; as a registrar,
he registered the sale-deeds, mortgage-deeds, conveyances, gift deeds and
as magistrate, he accepted bail-bonds, surety-bonds, attestation of Farmans
and documents.
He was appointed by the emperor and could be dismissed by him. The
Qazi being the repository of Muslim Law was to be a man of sobriety,
integrity and honesty. The instrument of instructions issued to a Qazi at the
time of his appointment under Aurangzeb indicate the qualifications of the
chief Qazi: ‘‘Be just, be honest, be impartial. Hold the trails in the presence
of the parties and at the court house and the seat of government. Do not
accept presents from the people of the place where you serve, nor attend
entertainments given by anybody and everybody... know poverty to be your
glory.’’>’ The Qazis were expected to rise to such high expectations. As
long as they discharged their work honestly and satisfactorily no one inter-
fered in the discharge of their duties. Prior to the rule of Akbar, he held his
court in a mosque or in his house where the complainants had free access
and thereafter in the state buildings only. Though learned in Islamic theo-
logy, the Qazi was never ‘considered authoritative enough to lay down a
legal principle, elucidate an obscurity in the Quran or supplement the
Quranic law by following the line of its obvious intention in respect of
cases not explicitly provided by it’. He had to accept the authoritative rulings
provided by the mufti who expounded the law. The mufti was ‘urged to
spend his days and nights in reading books on jurisprudence and the reports
of cases from which one can learn precedents’.
The Qazi decided religious cases mostly concerning the personal law
of the Muslims and executed the judgments. He had to visit the jails and
review the condition of the prisoners. He had the power to discharge those
who deserved freedom. It was on the recommendations of the chief Qazi
the Qazis of the provinces, districts, parganas and gasbas were appointed.
Though primarily the court of the chief Qazi was an appellate court, it also
decided cases of the first instant. The jurisdiction of the chief Qazi extended
over the whole empire. In addition to dispensing justice he performed enor-
mous multiplicity of functions and this must have grossly impaired his judi-

37. Quoted in A.B. Pande, op. cit., p. 166.

XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 271

cial work. Most of the Qazis did not rise up to the ideal expected of them
by Aurangzeb. As has been pointed out by J.N. Sarkar the Qazis were no-
toriously corrupt. Every provincial capital had its local Qazi, who was ap-
pointed by the chief Qazi; and these appointments were frequently purchases
by bribery. Most of them were so greedy and avaricious, they even gave
palpably wrong judgments in consideration for money. They delivered judg-
ments according to their whims showing scant respect for the provisions of
law. Some of them even did not attend the court and tried cases in their
house. There were others who held court only twice or thrice a week. Au-
rangzeb warned and exhorted them not to absent themselves from duty ex-
cept on Friday, the Muslim Sabbath. What is more, some Qazis were great
ignoramuses and their knowledge of law was very perfunctory.** It is not
that the rulers were unaware of this corrupt practice of the Qazis. In fact
Akbar took drastic action against his celebrated chief Qazi Shaikh Abdun-
Nabi and exiled him to Mecca, as he had become dissatisfied with his grasp-
ing conduct, religious bias, and corrupt administration both as the chief Qazi
and chief Sadr.* In view of this, the Qazi certainly did not rank high in
the public estimation. Popular dislike and contempt of these exponents of
civil law are enshrined in the adage: ‘when the Qazi’s bitch died, the whole
town was at the funeral; when the Qazi himself died, not a soul followed
his coffin’.“° It was not all that bleak; there were honest Qazis. For instance,
the son of that notoriously corrupt chief Qazi, Abdul Wahhab Bohra who
became chief Qazi was so honest that ‘he did not touch a penny of his
father’s ill-gotten riches, Lut gave away his share of them in charity. Not
only did he decide all cases without the faintest suspicion of corrupt in-
fluence or bribery, but even declined the customary presents and gifts from
his closest friends and kinsmen’.*' Unfortunately this noble example was not
followed by many other Qazis during the period of our concern here.

6. Secular Courts
In medieval period no clear distinction was made between the secular
and common law and the trial for political offences. This was due to the
fact that Muslim jurists, make no ‘distinction between the civil, penal and
political divisions of law’. The subedars, faujdars, shigdars, amils and
kotwals dispensed justice on the basis of the common law and equity. They
also decided cases relating to political offences like rebellion, rioting, etc.

38. Quoted in A.B. Pande, op. cit., p. 166.

39. The Mughal Empire, p. 548.
40. Edwards and Garrett, op. cit., p. 191.
41. J.N. Sarkar, Aurangzeb, Vol. Ill, p. 10.
272 HISTORY FOR LAW STUDENTS [CHAP.

7. Panchayats
The panchayats which played an important role in the administration
of justice in ancient India continued to play the same role during the rule
of the Sultans of Delhi and the Mughals. The panchayats decided cases of
their villages. The members of the village or caste panchayats were elected
by the people and by rendering conspicuous service to their caste or village
community exercised tremendous influence in the village. They had criminal
jurisdiction in petty cases. The decision of the panchayats were more often
than not were unanimous. They inflicted such punishments as ‘fines, public
degradation or reprimand or ex-communication’. They were thus the lowest
trial court for criminal cases and usually there were no appeals against their
findings. According to A.L. Srivastava, the ‘‘prestige enjoyed by the pan-
chayats was great and their authority was moral than political or adminis-
trative. The fear of public opinion was one of the most potent factors
responsible for the prevention of crimes and hardly did any case go out of
the boundaries of the village, Normally, cases involving even murder were
settled locally. The law administered by the panchayats was usually caste
and tribal usage and the customary law of the land’’.4? The way these village
or caste panchayats conducted themselves and the influence they exercised
elicited the admiration of British administrators. Sir Henry Elliot who was
so impressed by the administration of justice by the panchayats in the Pun-
jab remarks: ‘“The particular value of this mode of trial was that in intricate
points of native customs, often depending upon a state of feeling, which it
was difficult for the English officer, as being a foreigner, to enter into the
members of the panch were thoroughly at home in their subject and were
able to give due weight to a variety of minor considerations which none but
a native could perfectly understand. Even in the older provinces, where the
regulations are in force, it is found at times convenient to have recourse to
this time-honoured method of decision, and the result is so satisfactory, that
one is tempted to wish it were more largely resorted to.’**3

Defects in the Judicial Administration

The medieval judicial system had a number of defects. The paucity of
suitable law-books was one of the serious defects of the administrative SyS-
tem. Muslim Law in India did not grow and change according to the needs
and circumstances of the country. It merely reflected the changes of juristic

42. Akbar the Great, Vol. Il, p. 279.

43. yeaa on the History, Folklore and Distribution of the Races in N.W.F.P.. pp.
-280.
XI} LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 273

thought in Arabia or Egypt. No Muslim monarch of India after Firoz Tughlug

had sought to issue any legal code. We have no idea about the subject-matter
of certain regulations issued by Islam Shah for administrative convenience.
The reforms of Akbar were not ‘intended to serve as a compendium of law
for the guidance of judges. Only Aurangzeb made an attempt for the codi-
fication of Islamic laws and got compiled them in a treatise called Fatwa-
i-Alamgiri and this proved of immense help to the judicial officers of the
empire. Yet, the judicial officers frequently acted according to the dictates
of custom or their own personal prejudices. Also punishments were entirely
discretionary with the trying officer and they assumed different forms. Hence
lack of uniformity was a serious defect of the judicial system. There were
three separate judicial agencies working at the same time and independent
of one another with no unifying bond between them. Added to this, legal
procedure was not quite rational and the relation between different courts
was not satisfactorily defined. All the courts were the courts of ‘the first
instance too’ and some of them like those of the emperor, the provincial
Qazis and governors were also the courts of appeal. In the absence of a
defined procedure appeals could be made directly to the emperor without
appealing, in the first instance, at the lower courts. To quote J.N. Sarkar,
there was ‘‘no system, no organisation of the law courts in a regular gra-
dation from the highest to the lowest, nor any proper distribution of courts
in proportion to the area to be served by them’’. Corruption and bribery
played a significant part in the judicial administration. Palsaert writing about
conditions under Jahangir points out that bribery was an approved institution
and nobody considered it immoral and improper because the Emperor him-
self does not consider any petition unless it is supported by present.“ It was
highly expensive to set the machinery of civil law in motion for securing
the redress of private wrongs. There was much truth in the popular saying
that ‘‘To trust a Qazi is to court misfortune.’’® Instances are not wanting
to show how at times communal pressures were usefully employed to secure
the cancellation or mitigation of unfair decisions. In short, the judicial system
under the rule of the Muslims, viewed in the light of the modern ideas, was
very imperfect.

8. Punishments
The theory of punishment during snesdioval age was very severe. As
mentioned before, the principle which they followed was ‘an eye for an
eye’, ‘a tooth for a tooth’, and ‘a limb for a limb’. Death penalty, blinding,
flaying alive, whipping, mutilation of limbs, flogging, confiscation of
property, etc., were some of the punishments inflicted on the guilty ones.

44. A.B. Pande op. cit., p 166.

45. Edwards and Garrett, op. cit., p. 194.
274 HISTORY FOR LAW STUDENTS [CHAP.

Akbar was ‘zealous and watchful’ in the administration of justice, ‘deliberate

in inflicting punishments, and in all cases where capital punishment or mu-
tilation had been decreed, requiring that he should be reminded three times
before the sentence was carried out.*° Jahangir was capricious and deliber-
ation was absent in his dispensation of justice. Terry informs us: ‘“Trials
are quick and so are executions: hanging, beheading, impaling, killing with
dogges, by elephants, serpents and other like, according to the nature of the
fact.’’4”7 Shah Jahan was even more cruel and he took a savage pleasure in
witnessing the execution of the punishments which he decreed.** On the
other hand Aurangzeb in his desire to leave behind a name as an ideal
Muslim sovereign conducted judicial proceedings according to the letter and
the spirit of Muslim Law, ‘erred in the opposite direction’. Khafi Khan re-
marks, ‘‘from reverence for the injunctions of the law he did not make use
of punishment, and svithout punishment the administration of a country can-
not be maintained’’.*? This remark prompted the statement: ‘‘It is reasonable
assumption that the dandaniti, or the law of punishment was better suited
to the India of Mughal days than the strict doctrines and precepts of the
Hanafi school, and that Aurangzeb’s inability to recognize and accept that
view involved the diminution of his own personal authority and the rapid
deterioration of the imperial administration.’’~°

9. Investigation Process
Details are lacking regarding the process of investigation and the few
details that are there about the periods of Akbar and Aurangzeb do not help
us to draw a complete picture. Trials were held in the open court. When
the litigant appeared before the court with his complaint, the mir-i-adal and
the Qazis learnt the circumstances of the case through a thorough interro-
gation. Then they recorded the evidence of the eye-witnesses or witnesses.
The litigants could employ vakils or lawyers. Some rulers had appointed
lawyers to offer free legal advice to those who could not afford to engage
one on their account. This shows, the State had made provision for defending
pauper suits. ‘‘Some of most noted lawyers of this period were Ramachandra
and Ray Arzani among the Hindus and Qawamuddin and Muhammad
Mohsin among the Muslims. One lawyer bore the title of Vakalat Khan’’.>!
Generally the law dispensing authority gave a ‘little gap between the hearing

46. V.A. Smith, Akbar, p. 344.

47. W. Foster, Early Travellers, p. 326.
48. Edwards and Garrett, op. cit., p. 192.
49. Quoted in Edwards and Garrett, op. cif., p. 193.
50. Ibid, p. 193.
51. A.B. Pande, op. cit., p. 164.
XI] LAW & LEGAL INSTITUTIONS AND JUDICIAL ORGANISATIONS 275

of a case so as to have time to deliberate over it’ and then began their
enquiry anew. Due weight was given to evidence tendered by the witnesses.
In certain cases the evidence of the Hindus was not admissible during the
reign of Aurangzeb. Capital punishment was decided by the King himself
even when such cases were tried by different authorities. Cases were tried
expeditiously and prolonging of the litigation was generally discouraged.
Aurangzeb made it a rule that no one to be detained in jail without the
authority of the Qazi; no warrant of arrest should be issued unless a prima
facie case existed against the person and the arrested person should be pro-
duced before a law-court at the earliest. Aurangzeb did not favour indefinite
detentions without trial or conviction. He also framed regulations for the
release of the arrested persons on bail.*? All these show that he was equally
‘keen to administer justice even-handedly in cases in which the prestige and
interest of Islam were not involved’.
The Muslim rulers in medieval India did not show the same amount of
concern towards the establishment of sound judicial system as did the rulers
in ancient India. With the exception of Firoz Tughluq, Islam Shah, Akbar
and Aurangzeb no ruler thought it necessary to issue any legal code for the
guidance of the judges. The existing legal code left uncovered three-fourths
of the population, viz., the Hindus. A silver line in this none-too-happy
picture is that by leaving the caste and village panchayats undisturbed, the
medieval rulers enabled them to continue as ever and exercise the same
influence as before.

52. A.B. Pande, op. cit., p. 165.

 Appendix I

Some Modern Concepts — Their

Awareness in Ancient and Medieval
India

Dre student of modern constitutional history is familiar with such

concepts as liberty, equality, secularism, social justice, democracy, rule
of law, human rights and so forth. He would be anxious to know whether
the people in ancient and medieval India were aware of these concepts.
One has to be very cautious in giving a quick answer to this question.
Although, the meaning given to these concepts/values today are different
both in scope and application, one has to labour hard to find parallels to
these concepts/values in ancient and medieval India and yet the
approximations may fail to carry conviction.
Ancient Indian thinkers, it is also true of medieval thinkers, who
wrote on sixty-four arts (kalas) did not write a treatise on liberty, but
they laid greater emphasis on duty. It was their view that if one
performed his duties satisfactorily, the liberty he enjoyed becomes
automatically clear to him. In fact, the doctrine of dharma which is an
essential factor in the theory of the State, enunciates three propositions:
(1) that the State differs from the non-State as a law-giving institution;
(2) that the State differs from the non-State as a justice-dispensing
institution and (3) that the State differs from the non-State as a duty-
enforcing institution. In matsyanyaya there is no law, no justice, no duty.
The State is the originator of law, justice and duty. Unlike the theory of
modern State which is based upon the philosophy of natural law and
natural justice, the ancient Indian State theory, because of its conscious
and organic relationship with a perennial philosophy laid emphasis on
duty or the obligation aspect of justice. It is worthy of note here that in
the context of justice (with both the performance of duty and exercise of
right promote) rights and obligations are complementary concepts. Both
make up the two sides of the shield of dharma. Our thinkers who have
discussed more comprehensively on the duties of man never make any
reference to the liberties he enjoyed.
[ 276]
 APPENDIX 277

Our thinkers in ancient and medieval India do not appear to have be-
stowed much thought on the principle of equality. The doctrine of Varnas-
ramadharma implies that the dharma is not the same for all men, and each
varna had its own dharma. Whatever may be the justification for varna
programme, the fact remains that it compromised equality and in course of
time divided the society into high and low. Again in medieval India equality
became the victim of communal divide. There was also no equality of sexes
and women were treated as second class citizens. She was denied proprie-
tary rights, though this was grudgingly recognised, but not on equal terms
with men. The status and position of position of Muslim women was no
better. Further, all were not equal in eyes of law and punishments were
inflicted according to the status that one enjoyed in the society. This dis-
crimination cannot be easily explained away by saying ‘the ends of justice
were fully served by the infliction of punishment proportionate to the social
status of the offender because of the psycho-social conditions and status of
the offender are very important in the modern age’.'
The ancient and medieval Indian states were theocratic in character. It
was only during fourth century B.C. that Kautilya freed politics from the
shackles of religion. Kautilya advocated the exploitation of religion if the
interests of the State required it. He took the position that the continued
existence uf the religion depended on the continued existence of the State.
Similarly, he recommended the rational law to supersede the sacred law,
because the authorship of the sacred law is not known. For the first time
the brahmins were brought under the scope of capital punishment. In the
medieval period only Akbar eschewed religion from politics. Though Sultans
like Ala-ud-din Khilji refused to recognise outside authority, the State re-
mained theocratic in character. These instances show the familiarity of the
concept of secularism.
If the concept of social justice is taken to mean the State caring for the
overall welfare of the society, the ancient Indian State would not be found
wanting. An analysis of the scope of the State activity would indicate the
concern of the State towards social justice. In addition to police functions
or administration of justice, the State concerned itself with spiritual life of
the people. The State held the ring for the inter-play social forces, intellectual
influences, economic activity and the spiritual tradition. It protected the
people from the effects of natural calamities like floods, earthquakes, locusts,
famine, disease, fire and the like. The State provided support to the poor,
the aged, the infirm, the afflicted, the helpless, the pregnant women, the new
born offspring and orphans. According to Kautilya, the State was ‘to promote

1. §.D. Sharma, op. cit., p. 63.

278 HISTORY FOR LAW STUDENTS

true religion and to regulate the age and conditions under which one might
renounce the World’. Kautilya has also prescribed conditions of divorce sep-
aration, second or subsequent marriages and ways of teaching manners to
refractory women. There are provisions in the Arthasastra for safeguarding
the honour of women, the safety of immature girls, relations of lovers and
the profession of prostitutes. The State, above all, facilitated, regulated and
controlled public amusements, including gambling. The State thus tried to
maintain perfect social, cultural and occupational balance in the society.
The existence of pluralistic political discipline as opposed to the deifi-
cation of authority vested in a single individual is noticed by the Greek
writers and generals who accompanied Alexander in his invasion of India.
They never mistook village panchayat for a republic. They fought with
them, negotiated treaties and recorded the details of their constitution. The
Greek ambassador in the court of Chandragupta Maurya, Megasthenes, knew
clearly of the existence of republics in his day. He says, ‘of the overseers
or superintendents that they report everything to the king where the people
have a king, or where there is not a king to the magistrates’. The tradition
of republicanism or gana-sanghas has a history of well over five centuries.
The working of the gana-sanghas leave us in no doubt that they were based
on democratic principles. The way that the Samiti functioned in early Vedic
polity may be cited as another illustration for an animated political activity
of our forefathers and the high value they attached to democratic practices.
_ The rule of law is said to be a gift of the British. If by the rule of law
we mean the ability of the State to make people obey its laws and regula-
tions, the State in ancient India was not found wanting.
The human rights is essentially a modern concept and as mentioned
before, the writers on statecraft lay stress on duties than on rights. This is
not to say that the freedom of the people was restricted. The Chinese pilgrim,
Fahien, says that even the movement of the foreigners was not restricted.
Treason against the State was met with severe punishment, with or without
trial. By and large even the criminals were treated humanely. Asoka granted
three days’ respite to those who were condemned to death. Aurangzeb issued
orders to the effect that the arrested persons should be produced before the
law courts without the loss of time and prohibited detentions without trial
or conviction. The ethical principles of warfare as laid down in the epics
and dharmasastras suggest the importance attached to righteous warfare
and the observance of humane principles.
 Select Bibliography

CHAPTER I : HISTORY AND ITS TERRITORY

Allan Nevins, The Gateway to History
Arthur Marwick, The Nature of History
J.B. Bury, Selected Essays
E.H. Carr, What is History?, Penguin, London, 1990
R.G. Collingwood, The Idea of History, Clarendon Press, Oxford, 1946
H.S. Commager, The Nature and the Study of History
W.H. Dray, Philosophy of History
G.R. Elton, The Practice of History
Fernand Braudel, On History
H.P.R. Finberg, Approaches to History
Fritz Stern (ed.), The Varieties of History
V. Gordon Childe, What is History?
Gustar J. Renier, History, Its purpose and method
Homer C. Hockett, The Critical Method in Historical Research and Writing
Hugh Llyod, et al, History and Imagination
Irfan Habib, /nterpreting Indian History
D.D. Kosambi, /ntroduction to the ied ofHET, Rapulas Prakashan, Bombay,
1985
D.D. Kosambi, Culture and Civilization of Mitiens gia in Historical Outline, Vikas,
Delhi, 1970
Louis Gottschak (ed.), Generalization in the writing of History
R.C. Majumdar, The Vedic Age (Bharatiya Vidya Bhavan series), atittened1951
Marc Bloch, The Historian’s Craft
A.D. Momigliano, Studies in Historiography
H.J. Perkin, Social History
Romila Thapar, Ancient Indian Social History: Some Interpretations, Orient Long-
man, Delhi, 1978
A.L. Rowse, The Use of History
D. Thomson, The Aims of History, Thames & Hudson, London
H.R. Trevor-Roper, History, Professional and Lay
S. William Halperin, Some 20th Century Historians
CHAPTER II : POLITY IN ANCIENT INDIA
A.S. Altekar, State and Government in Ancient India, Motilal Banarasidass, Delhi,
1958
AS. Altekar, Village communities in Western India
A.L. Basham, The Wonder that was India, Rupa & Co., Delhi, 1987
Beni Prasad, State in Ancient India, The Indian Press, Allahabad, 1928
Beni Prasad, Theory of Government in Ancient India, Central Book Depot, Allahabad,
1928

[ 279]
280 HISTORY FOR LAW STUDENTS

N.C. Bandopadhyaya, Development of Hindu Polity and Political Theories, R. Corn-

bray, Calcutta, 1927
Charles Drekmier, Kingship and Community in Early India, OUP California, 1962
U.N. Ghoshal, History of Indian Political Ideas, OUP, Bombay, 1959
R.C. Majumdar, Corporate Life in Ancient India, Calcuta, 1969
R.C. Majumdar (ed.), The Vedic Age (A Bharatiya Vidhya Bhavan Publication), Bom-
bay 1951
N.N. Law, Aspects of Ancient Indian Polity, Orient Longman, Bombay, 1921
K.M. Panikkar, The Ideas of Sovereignty and State in Indian Political Thought
K.V. Rangaswami Aiyangar, Rajadharma, Adyae Library, Madras, 1941
B.A. Saletore, Ancient Indian Political Thought and Institutions
N.C. Sen Gupta, Evolution of Ancient Indian Law
R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, Motilal
Banarasidass, Delhi, 1991
R.S. Sharma, Origin of the State in India, University of Bombay, 1989
K.P. Jayaswal, Hindu Polity, Bangalore Printing & Publishing Company, Bangalore,
1943
S.D. Singh, Ancient Indian Warfare with special Reference to the Vedic period.
H.N. Sinha, Sovereignty in Ancient Indian Polity, Luzac, London, 1936
J.W. Spellman, Political Theory of Ancient India : A study of Kingship from the
earliest times to Circa A.D. 300, Clarendon Press, London, 1964
CHAPTER III : STATE AND GOVERNMENT IN ANCIENT INDIA: A
SURVEY
A.S. Altekar, State and Government in Ancient India, Motilal Banarasidass, Delhi,
1958
Beni Prasad, State in Ancient India, The Indian Press, Allahabad, 1928
N.C. Bandopadhaya, Development of Hindu Polity and Political Theories, R. Com-
bray, Calcutta, 1927
G. Buhler, The laws of Manu
Charles Drekmier, Kingship and Community in Early India, OUP, California, 1962
U.N. Ghoshal, A History of Indian Political Ideas, OUP, Bombay, 1959
K.P. Jayaswal, Hindu Polity, Bangalore Printing and Publishing Company, Bangalore,
1943
P.V. Kane, History of Dharmasastra, Bhandarkar Oriental Research Institute, Poona,
1941
N.N. Law, Aspects of Ancient Indian Polity, Orient Longman, Bombay, 1921
R.C. Majumdar (ed.), The Age of Imperial Unity (A Bharatiya Vidhya Bhavan Pub-
lication) Bombay, 1951
R.C. Majumdar (ed.), The Age of Imperial Kanauj (A Bharatiya Vidhya Bhavan
Publication) Bombay, 1984 3
R.C. Majumdar (ed.), The Classical Age (A Bharatiya Vidhya Bhawan Publication)
Bombay, 1988
K.M. Panikkar, The Idea of Sovereignty and Statein India Political Thought
V.R. Ramachandra Dikshitar, Hindu Administrative Institutions, University of Ma-
dras, 1929
V.R. Ramachandra Dikshitar, The Mauryan Polity, University of Madras, 1932
 SELECT BIBLIOGRAPHY 281

V.R. Ramachandra Dikshitar, The Gupta Polity, University of Madras, 1952

B.K. Sarkar, Sukra Nitisara
R. Shamasastry, Kautilya’s Arthasastra
R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, Motilal
Banarasidass, Delhi, 1991
R.S. Sharma, Origin of the State in India, University of Bombay, 1989
R.S. Sharma, /ndian Feudalism, Macmillan, Delhi, 1985
TJ. Byres and Harbans Mukhia, Feudalism and Non-European Societies, Journal of
Peasant Studies, Vol. XII Nos. 2 and 3, Jan/April, 1985
Romila Thapar, A History of India, Vol. 1, Penguin, 1966
Thakur Vijaya Kumar, Historiography of Indian Feudalism
S.V. Viswanath, /nternational Law in Ancient India.

CHAPTER IV : SOCIAL ORGANISATION IN ANCIENT INDIA

A.L. Basham, The Wonder that was India, Rupa & Co., Delhi, 1987
N.C. Bandopadhyaya, Kautilya or an Exposition of his Social and Political Theory,
National Publishing House, Calcutta, 1927
N.K. Bose, Origin and Growth of Caste in India Vols. I and II
J. Brough, The Early Brahmanical system of Gotra and Pravara
S.A. Dange, India from Primitive Communism to slavery, PPH, Bombay, 1949
Devraj Chanana, Slavery in Ancient India, PPH, Delhi, 1990
B.N. Dutta, Studies in Indian Social Polity, Nababharat Publishers, Calcutta, 1983
F. Engels, The Origin of the Family, Private Property and the State, Moscow, 1948
R. Fick, tr. S.K. Maitra, Social Organisation in North East India in Buddha’s Time,
Calcutta University, 1920
B.K. Ghosh, The Hindu Ideal of Life
G.S. Ghuryc, Caste and class in India, Popular Book Depot, Bombay, 1961
K.M. Kapadia, Hindu Kinship
D.D. Kosambi, Introduction to the study of Indian History, Popular Prakashan, Bom-
bay, 1956
P.H. Prabhu, Hindu Social Organisation
T.W. Rhys Davids, The Buddhist India
-Romila Thapar, Ancient Indian Social History, Orient Longman, Delhi, 1978
R.S. Sharma, Material culture and social Formation in Ancient India, Macmillan,
Delhi, 1985
R.S. Sharma, Sudras in Ancient India, Motilal Banarasidass, Delhi, 1986
R.S. Sharma (ed.), Survey of Research in Economic and Social History of India,
Ajanta Publications, Delhi, 1986
P.H. Valavankar, Hindu Social Institutions

CHAPTER V : THE STATUS AND POSITION OF WOMEN IN

ANCIENT INDIA
Albert Schweitzer, Indian Thought and its Development
A.S. Altekar, The position of Women in Hindu civilisation
S. Banerjee, Hindu Law of Marriage and Stridhan
A.L. Basham, The Wonder that was India, Rupa & Co., Delhi, 1987
B.N. Dutta, Hindu Law of Inheritance, Nababharat Publishers, Calcutta, 1957
282 HISTORY FOR LAW STUDENTS

Horner, Women under primitive Buddhism

Iravati Karve, Hindu Society An Interpretation
J. Jolly, Hindu Law and Custom
J. Jolly, History of the Hindu Law of Partition
H. Kern (ed.), The Brihadsamhita
J. W. McCrindle (tr), Ancient India as Described by Megasthenes and Arian
Mitter, Justice, Position of women in Hindu Law
B.N. Prabhu, Hindu Social Organisation
R.S. Sharma, Material Culture and social formation in Ancient India, Macmillan,
Delhi, 1985
R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, Motilal
Banarasidass, Delhi, 1991
R.S. Sharma (ed.), Survey of Research in Social and Economic History of India,
Ajanta Publications, Delhi, 1986
Sharma B.N., Social Life in Northern India A.D. 600-1000
Sharma B.N., Social and Cultural History of Northern India A.D.1000-1200
Shakambhari Jayal, The Status of women in the Epics
J.R. Trautmann, Kinship and History in South Asia
CHAPTER VI : ECONOMIC STRUCTURE IN ANCIENT INDIA
A. Appadorai, Economic Conditions in South India
G.N. Banerjee, Hellenism in Ancient India
A.L. Basham, The Wonder that was India, Rupa & Co., Delhi, 1987
A. Bose, Social and Rural Economy of Northern India, Firma K.L. Mukhopadhyay,
Calcutta, 1945
U.N. Ghoshal, Contributions to the History of Hindu Revenue system, Salaswat Li-
brary, Calcutta, 1929 .
U.N. Ghoshal, Agrarian system in Ancient India
K.M. Gupta, Land system in South India between A.D. 800 and A.D. 1200
Lalanji Gopal, Economic History of Ancient India, Motilal Banarasidass, Delhi, 1989
J. Kennedy, Early commerce of Babylon and India, JRAS, 1898
R.C. Majumdar, Corporate Life in Ancient India, Firma, K.L. Mukhopadhyay, Cal-
cutta, 1969
R.K. Mookerji, History of Indian Shipping and Maritime Activity
K.A. Nilakanta Sastri, A History of South India, OUP, Madras, 1987
Pran Nath, A study in the Economic condition of Ancient India
H.G. Rawlingson, Commerce between India and the Roman Empire
R.N. Saletore, Life in the Gupta Age
R.S. Sharma, Material culture and social formation in Ancient India, Macmillan,
Delhi, 1985
R.S. Sharma (ed.), Survey of Social and Economic History of Ancient India, Ajantha
Publications, Delhi, 1986
W.W. Tarn, The Greeks in Bactria and India
E.H. Warmington, Commerce between the Roman Empire and India
R.E.M. Wheeler and others, Arikamedu : An Indo - Roman Trading station
Motichandra, Sarthavaha
 SELECT BIBLIOGRAPHY 283

CHAPTER VII : LEGAL SYSTEM IN ANCIENT INDIA

M. Bloomfield, The religion of the Veda
N.C. Bandopadhyaya (ed.), Katyayana - Smriti
G. Buhler (tr), The Laws of Manu
G. Buhler (tr), Sacred Laws of the Aryans
J.D.M. Derrett, Religion, Law and the State in India
H.L.A Hart, The concept of Law
Mayne, Hindu Law and Usage
B.K. Ghosh, Vyasa - Smriti
N.C. Gupta, Law and Society in Ancient India
K.P. Jayaswal, Manu and Yajnavalkya : a comparison and a contrast, Butterworth,
Calcutta, 1930
J. Jolly, Hindu Law and Custom
J. Jolly, The Institutes of Vishnu
J. Jolly, The Minor Law Books
G.N. Jha, Hindu Law in its sources
P.N. Sen, General Principles of Hindu Jurisprudence
P.V. Kane, History of Dharmasastra, Bhandarkar Oriental Research Institute, Poona,
1941
Rangaswami Aiyangar, K.V. (ed.), Brihaspati-Smriti, Baroda, 1941
Rangaswami Aiyangar, K.V. (ed.), Katyayana
Rangaswami Aiyangar, K.V. (ed.), Some Aspects of Hindu view of Life according
to Dharmasastra
Radhabinud Pal, History of Hindu Law
U.C. Sarkar, Epochs in Legal History
G.C. Sarkar, Hindu Law
R.S. Sharma, Aspects of Political Ideas and Institutions in Ancient India, Motilal
Banarasidas, Delhi, 1991
S.D. Sharma, Administration of Justice in Ancient India
Sukla Das, Crime and Punishment in Ancient India
CHAPTER VIII :ADMINISTRATION OF JUSTICE IN
ANCIENT INDIA
A.S. Altekar, State and Government in Ancient India, Motilal Banarasidass, Delhi,
1958
J.J. Anjaria, The Nature and grounds of Political obligation in the Hindu State
P.N. Baneri, Public Administration in Ancient India
H.N. Bhattacharjee, The Ethical Foundation of Hindu Jurisprudence
R.K. Choudhuri, Studies in Ancient Indian Law and Justice
R.P. Dasgupta, Crime and Punishment in Ancient India
U.N. Ghoshal, A History of Indian Political Ideas, OUP, Bombay, 1959
J.C. Ghoshe, The Principles of Hindu Law
B.A. Saletore, Ancient Indian Political Thought and Institutions
S. Varadachariar, Hindu Judicial System
See also bibliography of Chapters III and VII
284 HISTORY FOR LAW STUDENTS

CHAPTER IX : MEDIEVAL INDIA : THE RULE OF TURKO-AFGHANS

AND MUGHALS
U.N. De, Some Aspects of Medieval Indian History, Delhi, 1971
Edwardes S.M. & Garrett, Mughal Rule in India, Delhi, 1962
Grewal J.S., Muslim Rule in India, Calcutta, 1970
Irfan Habib, The Agrarian system of Mughal India, Bombay, 1963
Ishwari Prasad, History of Medieval India, Allahabad, 1950
K.S. Lal, Studies in Medieval Indian History, Delhi, 1966
R.C. Majumdar (ed.), The Delhi Sultanate (A Bharatiya Vidya Bhavan Publication),
Bombay, 1990
Mehdi Husain, The Tughlug Dynasty, Paris, 1936
W.H. Moreland, Agrarian System of Moslem India, Cambridge, 1929
K.A. Nizami, Studies in Medieval Indian History and Culture, Allahabad, 1966
A.B. Pande, Society and Government in Medieval India, Allahabad, 1965
I.H. Qureshi, The Administration of the Sultanate of Delhi, Lahore, 1944
M.A. Rahim, History of the Afghans in India, Karachi, 1961
Rosenthal E.I.J., Political Thought in Medieval Islam, Cambridge, 1958
P. Saran, The provincial Government of the Mughals, Allahabad, 1941
J.N. Sarkar, Studies in Mughal India Administration, Calcutta, 1919
S.R. Sharma, Mughal Empire in India, Agra, 1966
N.A. Siddiqui, Land Revenue Administration under the Mughals, Agra, 1971
A.L. Srivastava, The Mughal Empire, Agra, 1964
A.L. Srivastava, Akbar the Great, 2 Vols., Agra 1962-67
R.P. Tripathi, Rise and Fall of the Mughal Empire, Allahabad, 1956
R.P. Tripathi, Some Aspects of Muslim Administration, Allahabad, 1956

CHAPTER X : MEDIEVAL INDIAN SOCIETY

Ashraf, M., Life and conditions of the people of Hindustan (1200-1550) JASB, 1,
(1955) 105-359
Aziz, Ahmad, Studies in Islamic culture in the Indian Environment, Oxford, 1964
Aziz, Ahmad, Intellectual History of Islam in India, Edinburgh, 1969
J.E. Carpenter, Theism in Medieval India, London, 1926
P.N. Chopra, Society and Culture during the Mughal Age, Agra, 1963
P.N. Chopra, Social Life under the Mughals, Agra, 1963
Jafar S.M., Some cultural Aspects of Muslim Rule in India, Peshawar, 1938
Ksitimohan Sen, Medieval Mysticism in India, London, 1936
R.C. Majumdar (ed.), The Delhi Sultanate, Bombay, 1990.
R.C, Majumdar (ed.), The Mughal on (A Bharatiya Vidya Bhavan Publication)
Bombay, 1984
P.N. Ojha, Aspects of Medieval Indian Culture, Ranchi, 1961
A.B. Pandey, Society and Government in Medieval India, Allahabad, 1965
J.N. Sarkar, Studies in Mughal India, Calcutta, 1919
J.M. Shelat, Akbar, 2 Vols., Bombay, 1959
V.A. Smith, Akbar the Great Mughal, Oxford, 1919
A.L. Srivastava, Akbar the Great, 2 Vols., Agra, 1962-67
Tara Chand, Influence of Islam on Indian Culture, Allahabad, 1943
 SELECT BIBLIOGRAPHY 285

Tara Chand, Society and State in the Mughal Period, Delhi, 1961
M.T. Titus, Indian Islam, Madras, 1938
G.H. Westcott, Kabir and the Kabir Panth
Yasin Mohammed, A Social History of Islamic India
Yusuf Hussain, Glimpses of Medieval Indian culture, Bombay, 1957
CHAPTER XI : LAW AND LEGAL INSTITUTIONS AND JUDICIAL
ORGANISATIONS
M.B. Ahmed, The Administration of Justice in Medieval India, Aligarh, 1941
N.J. Coulson, A History of Islamic Law, Ediburgh, 1964
N.J. Coulson, Dictionary of Islam
N.J. Coulson, Encyclopaedia of Islam
M. Jang, A dissertation on the Administration of Justice and Muslim Law, Allahabad,
1926
D.B. Macdonald, Development of Muslim Theology, Jurisprudence and Constitu-
tional Theory, Beirut, 1964
R.C. Majumdar (ed.), The Delhi Sultanate, Bombay, 1990
R.C. Majumdar (ed.), The Mughal Empire (A Bharatiya Vidya Bhavan Publication),
Bombay, 1984
D.F. Mulla, Principles of Muhammadan Law, Bombay, 1929
A.B. Pande, Society and Government in Medieval India, Allahabad, 1965
1.H. Qureshi, The Administration of the Sultante of Delhi, |
1H. Qureshi, The Administration of the Mughal Empire, Karachi, 1966
M. Rama Jois, Legal and Constitutional History of India, Vol. II
J.N. Sarkar, Mughal Administration, Calcutta, 1924
J.N. Sarkar, History of Aurangzeb , 5 Vols., Calcutta, 1912-25
J. Schacht, The Origins of Muhammadan Jurisprudence, London, 1968
J. Schacht, An Introduction to Islamic Law, Oxford, 1964
S.R. Sharma, Mughal Government & Administration, Bombay, 1951
A.L. Srivastava, Akbar the Great, 2 Vols., Agra, 1962-67
Sangar Satya Prakash, Crime and Punishment in Mughal India, Delhi, 1967
Wahid Husain, The Administration of Justice during the Muslim Rule in India, Cal-
cutta, 1934
K.M. Yusuf, The Judiciary in India under the Sultans of Delhi and the Mughal
Emperors, Indo-Iranica, Vol. 18, No. 4, 1-12.
 SUBJECT INDEX
Administration of Justice in Ancient India, 192-214
Administrative Apparatus (in medieval period) 222-224
Agriculture and Stock-breeding, 142-146
Akbar’s Revenue Reforms, 234-237
Ala-ud-din Khilji, Reforms of, 224-227
Asramas, The, 104-107

Bhakti Movement, The, 243-248

Brihaspati, 168-173

Courts, Kinds of, 194-195

Courts, of the guilds, 198-199
Courts, types of, 195-198
Criminal Law & Punishments (in medieval period), 262-266

Dharma, the concept of, 185-187

Divorce, 126-128
Economic structure in Ancient India, 135-161
Economy, pastoral, 135-137
Economy, Peasant Phase, 137-139

Family, the 102-104

Feudalism, Quasi and Feudalism, 78-81

Gotra and Pravara, 94-96

Guilds, 150-155
Government set up, the (in medieval India), 218-219

History and Antiquarianism, 5-7

The Knowability of the past, 3-5
History and Economics, 14-16
History and Geography, 11-13
History and its neighbours, 6-7
History and Law, 19-22
History and other disciplines, 18-19
History and Politics, 13-14
History and Sociology, 16-18
History as a living subject, 6-7
History, Purpose of, 7-10
History—the subject-matter, 1-3
Initiation of the Procedures, 200-202
Investigation Process (in medieval India), 274-275
[ 286]
 SUBJECT INDEX 287

Judges, role of, 212-214

Judicial Institution (ancient period), 193-195
Judicial Organisation (in medieval period), 266-273
Judicial Procedure, concluding stage, 209
Katyayana, 179-183

Law & Legal Institutions (in medieval period), 256-275

Law and custom, 189-190
Law making and Law interpreting Process, 187-189
Law, changes under Akbar, 260-262
Law, Human and Law, Divine, 190-191
Law, the sources of, 183-185
Legal literature, 162-166
Legal, system of Ancient India, 162-191
Local Administration, 81-86
Mandatory System, the, 232-234
Manu, 167-168
Marriage, 121
Age of marriage, 122-124
Forms of marriage, 121-122
Medieval India (Political background) 215-218
Mughals, Departmental Administration under, 228-232
Muhammad-bin Tughluq, Reforms of, 227-228
Muslim Law & non-Muslims, 259-260
Muslim Law, Sources & character, 256-259
Muslim Political ideas, 219-222
Narada, 176-179

Panchayats (in medieval period), 272

Pleaders, 206-207
Polity in Ancient India, 34-51
Polity, post Mauryan, 61-70
Polity, structure of between 700-1200 A.D., 76-78
Polity, the Gupta, 70-76
Polity, the Kushana, 66-70
Polity, the Mauryan, 52-61
Polity, the Satavahana, 62-66
Polity, tribal, 35-36
Councillors and officials, 46-47
Functions of the King, 44-46
Kingship, origin, 40-44
Obligarchies and republics, 47-51
Sabha, 37-38 Vv
288 HISTORY FOR LAW STUDENTS

Samiti, 38-40
Tribal Assemblies, Vidatha, 36-37
Property, origin and Types of, 146-147
Property, widow’s right, 133-134
Property, women right to, 124-126
Stridhana, 125-126
Prostitution, 128-130
Punishments (in Medieval period), 273-274
Punishments, 210-212

Sati, 131-132
Secret Agents, 207-209
Slavery, 107-110
Smritikaras, role of the, 166-183
Social organisation in Ancient India, 87-110
Usefulness of the study of past institutions, 87-88
Social reforms of Akbar, 248-250
Society, Medieval Indian, 238-255
Status & position of women, Hindu, 250-251
Muslim, 251-254
Status and position of women in Ancient India, 111-134
Education, 117-121
Survey of Indian Historiography, 22-33
Ancient Period, 22-25
Medieval Period, 26-28
Modern Period, 29-31
Recent Trends, 31-33

Trade and Finance (ancient India), 155-157

Trade maritime, 157-161
Trial, the, 202-205
Gover

Untouchables (Panchamas), 100-102

Urban Centres, 147-150

Varna and Jati, 97-99

Varna system, the, 88-94
Origin of, 89-94
Village, the basic centre of economic activity, 139-142
Village Panchayats, role of, 199-200

Widows, 130-134 ahi

Witnesses, 205-206 | Approval:
Yajnavalkya, 173-176 Gratis: On
Acc No.: 02003)
Price:
; “Narayan Rao Melgiri”
\ 2 VY National Law Library
 STANDARD LAW BOOKS
FOR STUDENTS
OF LL.B. (3 & 5 YR. COURSES),
LL.M. & COMPETITIVE EXAMINATIONS

ADMINISTRATIVE LAW ADVOCACY

Administrative Law Clinical Legal Education

by |.P. Massey by N.R.M. Menon
6th Edn., 2005 Rs. 285.00 Reprinted, 2003 Rs. 285.00
ee) The updated edition of This handbook provides some ground rules
ADUISTRATIVE | this widely acclaimed & guidelines on clinical legal education.The
aia work includes latest book has two parts: part one contains an
ENN
developments in the field overview of the goals, need & concciiis ul
Re . oa of Administrative law. the subject. Part two explains the skills of
A book of great merit and interviewing, counselling & negotiating,
scholarship it summarises case planning, trial advocacy and appellate
all the aspects of Indian lawyering. Some useful tips on how to
administrative law spread organize the teaching of these skills have
over thirteen chapters also been provided.
each having a set of propositions,
bibliography, and cross-references of cases ARBITRATION AND
cited which provide the reader with an CONCILIATION LAW
insight on the subject. The author has
discussed a wide variety of topics in the book
like - natural justice; delegated legislation; Law of
Governmental liability; enforcement of Arbitration & Conciliation
public duties; ombudsman; right to know;
jurisdictional reach and remedial law etc. by Avtar Singh
The language employed is simple and lucid. 7th Edn.,
eel 2005 : Jane
-RTRATION AND |
The academicians, students, judges, lawyers Reprinted 2006 OOREILIATION OT
and the administrators in the field will derive Rs. Sallie 4
immense benefit from such an erudite yet
simplistic discourse on the subject. The book The book elucidates the
will no doubt be a welcome addition to any changed law as
law library. contained in the new Act,
the Arbitration and
Conciliation Act, 1996.
Lectures on The author has
highlighted the virtuous features of the new
Administrative Law Act, as well as the weak areas, as brought
by C.K. Takwani out by the recent decisions of the Supreme
Court. Recent Supreme Court decisions have
3rd Edn., Reprinted 2006 Rs. 195.00
provided important guidelines as to how the
Also available: ADR provisions can be used to bring about
C.K. Takwani’s a settlement of dispute through conciliation
Prashasanik Vidhi, Translated & Updated to give it a binding effect. The author has
by K.C. Joshi, 2005 Edition, Rs. 195.00 vividly brought out the impact of these
decisions. .
Madhyastham Aur Sulah The illustrious author has critically discussed
all the latest amendments. The scheme of
Adhiniyam the book has been made more methodical
(Arbitration and Conciliation Act in Hindi) and systematic. Illustrations have been
multiplied and new topics added. Care has
by |.J. Malhotra
been taken to ensure that the book retains
2nd Edn., with Suppl., 2005 Rs. 160.00 its character of a compact and easy to
understand work on the subject.
Madhyastham, Sulah
Evam Anukalpi Vivad
COMPANY LAW
Niptan Vidhi
(Law relating to Arbitration, Conciliation & Corporate Governance and
Alternative Disputes Resolution in Hindi) Chairmanship
by Avtar Singh by Adrian Cadbury
3rd Edn., 2005 Rs. 195.00 1st Indian Edition, 2003
Rs. 595.00
CARRIAGE Corporate governance
has become a major issue
Law of Carriage in business over the last
(Air, Land and Sea) decade. The book
provides a background to
by Avtar Singh the theory of governance
4th Edn., 2005 Rs. 475.00 and its application in the
business world. The
The book presents a systematic commentary author discusses and
on a subject which is gaining great explains the central issue
importance. With the help of relevant of corporate governance; provides practical
statutory material and recent cases, the advice to chairmen and directors on their
author presents in simple language and lucid roles and responsibilities; and surveys the
style the law relating to transport by road, major codes of practice that have been
rail, air and sea (as also the relationship developed in the last decade.
between a carrier and his passengers). In The work is both an informed commentary
addition to the Indian and English and a practical guide. The author's insights
authorities, note has been taken of will prove essential reading for anybody ©
American, European, Malaysian, New
taking on senior roles in companies and
Zealand and Australian authorities as well. other public organizations, and will provide
well-grounded analysis for lawyers,
CIVIL PROCEDURE management academics, MBA and law
students, and advisers.
Civil Procedure This book is highly relevant for the Company
Law course in the LL.B. programme, as
by C.K. Takwani (Thakker) prescribed in the latest UGC Model
5th Edn., 2003 Curriculum, valid from July 2002—
CIVEL especially on a discussion on the protection
PRGCEDURE Reprinted 2006
Rs. 295.00 of shareholder and minority rights, and how,
in the light of recent accounting scams like
This new edition gives a those at Enron and Worldcom top
complete grasp of the management can be controlled and held to
general principles of account.
Civil Procedure and a
mastery over the subject.

a
Company Law and Company Law
Corporate Finance by Avtar Singh
by Eilis Ferran
14th Edn., 2004 R/P 2005 Rs. 265.00
Ist Indian Edition, 2003 Rs. 895.00 This book has had a consistent record of
The book provides a success over the last thirty-six years. This
company comprehensive account
of the legal rules that
brilliantly presented book deserves a place
in all law libraries in the country.
law apply in corporate This new edition has been thoroughly
corporate finance. It examines the
fundamentals of company
revised and updated and incorporates the
significant changes introduced in the
finance law: how businesses in the statute law as also the important
fulis Faesar
form of a company are developments in case-law.
financed, and the legal
and practical implications of these financing Also available:
choices. Detailed legal analysis is Avtar Singh — Company Vidhi,
successfully combined with discussion of 7th Edn., 2004, Rs. 200.00
corporate finance theory, commercial
considerations and market practice. CONSTITUTION
The book will be essential reading for all
students of company law and corporate V.N. Shukla’s
finance and will also be found useful by Constitution of India
practicing lawyers, corporate finance
professionals, managers of companies and
Revised by M.P. Singh
investors. Text of the Constitution amended upto
the Constitution (Ninety-third
The book is already a UGC prescribed
Amendment) Act, 2005 and case-law
textbook for the LL.B. (Hons.) and LL.M.
supplement upto November 2005
courses, for the subject of Corporate
Finance, as prescribed in the latest UGC 10th Edn., 2001,
Model Curriculum valid from July 2002. Reprinted 2006,
Since the book discusses Company Law from with up to date case-law Supplement
the point of view of Corporate Finance this Hardbound - Rs. 590.00
book is the ideal book on Company Law for Paperback - Rs. 390.00
MBA students and law students who wish to
specialize as corporate lawyers. First published in 1950,
this work has
Constitution consistently Brow in
Introduction to popularity and is today
recognised as one of the
Company Law foremost authoritative
by Avtar Singh works on the subject. The
tenth edition has been
10th Edn., 2006 Rs. 120.00 thorough| and
This handy work has been prepared to meet pO meticulously revised by
the needs of students who wish to study Prof. Mahendra P. Singh, an eminent scholar
through a concise yet easily comprehensible of constitutional law.
book. Recent cases have also contributed From the very beginning this work has
substantially to the development of the enjoyed a reputation and popularity which
subject. All the changes have been included no other work on the Constitution of India
in this edition. has yet surpassed. It has been equally relied
upon by legal scholars, practitioner, courts,
Also available: and even non-law persons having any
Avtar Singh — Company Vidhi—Ek interest in the study otindian Constitutional
Parichay, 4th Edn., 2006, law. The work has achieved this stature,
Rs. 125.00
among others, for its plain and simple layman to understand the law, his rights and
language, accurate and authentic statement obligations and how to proceed in case he
of Bu, brevity and precision, and, wherever wishes to file a suit under the Consumer
necessary and appropriate, reference to Protection Act or to defend himself.
historical and comparative materials.
Also available:
Constitutional Law of Avtar Singh — Upbhokta Sanrakshan
(Sidhant Evam Prakrnya), 2nd Edn., 1999
India with Supplement, 2003 Rs. 160.00
by V.D. Mahajan
Foreword by Upbhokta Sanrakshan
Hon’ble Justice M. Hidayatullah Vidhi
7th Edition Rs. 125.00 (Law of Consumer Protection in Hindi)
This book explains alongwith Supplement of the Consumer
thoroughly the various Protection (Amendment) Act, 2002
aspects of the structure by S.P. Gupta
and history of the
Constitution of India, 2001 Edition with Suppl., 2003
and = provides” a Hardbound - Rs. 200.00
comparison with the
provisions of other
constitutions. The CONTRACT
XG language of the book is
clear and concise, the subject index good Law of Contract
and the structure logical. and Specific Relief
by Avtar Singh
CONSUMER PROTECTION
9th Edn., 2005,
Law of Reprinted 2006 Paperback - Rs. 335.00
Consumer Protection This classic work is
(Principles and Practice) admired by students,
x lawyers and lay public
by Avtar Singh eS ee and extolled by reviewers
Seber iame) due to its clear
4th Edn., 2005 Hardbound - Rs. 590.00 — enunciation of the
This updated edition of principles and up-to-date
the book deals with the case-law and material.
Consumer Protection Act SS
The new edition is
of 1986 and the thoroughly revised and
complete overhauling of incorporates an additional chapter on
its structure brought Specific Relief, which has made the work
more comprehensive and practical.
about by the
amendments of 2001& The author has analysed carefully the recent
2002. Supreme Court judgements on the subject
and presented them systematically. Articles
The present edition is As from foreign journals and cases from abroad
enriched with text materials both in respect are ickuded for presenting a composite
of the commodity market and service sector. picture of the worldwide trends. The book
In addition, a good number of foreign cases is indispensable for the legal fraternity and
have been ited: Useful practice notes students of CA, CS and other competitive
have been provided for filing complaints examinations.
with consumer redressal forums, for
Also available:
preparing written statements, appeals and
for getting orders executed. the clear Avtar Singh — Samvida Vidhi tatha
presentation makes it easy even for the Vinirdisht Anutosh Adhiniyam, 1963
8th Edn., 2004, Rs. 225.00
Textbook on Bhartiya Dand Sanhita, 1860
Law of Contract (Indian Penal Code, 1860 in Hindi)
and Specific Relief by M.D. Chaturvedi
by Avtar Singh 7th Edn., 2005 Rs. 295.00

4th Edn., 2006

Rs. 195.00
General Principles of
Also available:
Criminal Law
Avtar Singh — by Dr. K.N.C. Pillai
Samvida Vidhi—Ek 2003 Edition, R/P 2005 Rs. 335.00
Parichay, 1999 Edition,
This is an authoritative
Rs. 90.00
work by the well known
author, who is already
known for his ‘
authoritative and expert
revision of Kelkar’s
COPYRIGHT Criminal Procedure.
Copyright and Trademark The book is the first
Laws Relating to Computers attempt to present the
subject of ‘General
by Pankaj Jain and Principles of Criminal Law’, through the
Pandey Sangeet Rai case-method. English and Indian leading
2005 Edition Rs. 285.00 cases are given along with an introduction
to the law on the issues involved, and at the
end of each case, a fundamental question
CRIMINAL PROCEDURE, of law is laid out for class-room discussion.
CRIMINAL LAW, JUVENILE The texts of cases have been abridged, edited
JUSTICE AND PROBATION OF and some explanatory notes are also added
OFFENDER’S ACT to them. Some cases are summarised in the
words of the author. These different forms of
R.V. Kelkar’s presentation of case law are resorted to with
Lectures on an idea of helping the students to prepare
case notes in the class rooms.
Criminal Procedure
Revised by K.N.C. Pillai Shamshul Huda’s
4th Edn., 2006 Rs. 220.00 Principles of the
The author’s work on Law of Crimes
Criminal Procedure has with a Suppl. by O.P. Srivastava
acquired a unique status R/P with Suppl. of
in the realm of standard latest developments Rs. 250.00
works on the subject.
A great classic, recognised as the best work
These lectures are
arranged topic-wise in on the subject. It has been printed verbatim
their logical order. At the and can be cited as the original. The
end of each chapter, the provisions of the Indian Penal Code remain
author has added almost unchanged since the time the book
exercises and questions. As a pioneering was first published. The excellent
effort in the treatment of the work subject- enunciation of the principles of Criminal
wise, the book has become an instant Law by the author is therefore relevant even
success with the students and teachers alike. today. To enhance it’s utility, a
Its unique and lucid treatment of the subject supplementary chapter has been added,
is unmatched by any other book. giving recent developments.
O.P. Srivastava’s Law and Economics
Principles of by Robert Cooter & Thomas Ulen
Criminal Law 1st Indian Edition, 2004 ~==Rs. 495.00
(with Model Questions and Suggested This best-selling text
Sheotte
Readings) continues to provide
Revised by R. Prakash AWE
ECONOMICS
students with a clear
method for applying
4th Edn., 2005 Rs. 110.00 economic analysis to the
Also available: study of legal rules and
institutions. Law and
O.P. Srivastava — Apradhik Vidhi Ke Economics opens with
Sidhant, 3rd Edn., 2005 Rs. 90.00 an overview of
economic tools for law
students and legal tools for economics
CRIMINOLOGY & PENOLOGY students. Later chapters cover economic
theories in five key areas of the law: property,
Ahmad Siddique’s contracts, torts, legal process, and crimes.
Criminology : Problems & This has been thoroughly revised for clarity
Perspectives and coverage. New material includes recent
developments in intellectual property, law
Revised by S.M.A. Qadri and social norms, efficiency versus equity,
Sth Edn., R/P 2007 Rs. 295.00 private, disputes versus tax and transfer as
methods of achieving equity, and behavioral
Apradh Shastra law and economics. Empirical literature and
data have been extensively updated
(Criminology in Hindi) throughout. The improved and expanded
by B.L. Babel end-of-chapter problems serve as an
important resource for students. All new
2nd Edition Rs. 65.00 “Web Notes,” featured in each chapter,
closely link the text with materials on the
Dand Shastra Web site for the book.
(Penology in Hindi)
ENVIRONMENTAL LAW
by Y.S. Sharma
1999 Edition Rs. 95.00 Environmental
Law
DICTIONARY
by S.C. Shastri
2nd Edn., 2005
Law Dictionary Rs. 225.00
(English to Hindi)
by K. Chopra
3rd Edn. R/P 2001 Rs. 175.00
3rd Edn. R/P 2005 (Pocket) Rs. 140.00
Van Evam Vanya Jeev
ECONOMICS Sanrakshan Vidhi
(Law Relating to Forest and Wild Life
Economics Protection in Hindi)
(for Law Students) by B.L. Babel
by K.C. Gopalakrishnan & Ramdass 3rd Edn., 2003 Rs. 175.00
Reprinted 2005 Rs. 155.00
 EVIDENCE HISTORY
Law of Evidence History of India (Part-I)
by Vepa P. Sarathi
by H.V.S. Murthy
6th Edn., 2006 Rs. 220.00 Reprinted 2006 Rs. 135.00
: This classic work is
Law Of popular for its very History of India (Part-II)
interesting style. The by H.V.S. Murthy & V.S. Elizabeth
author, an ex-editor of
‘Supreme Court Reports’ Reprinted 2006 Rs. 125.00
draws from his vast This book is specially focused on the needs
knowledge and of law students. The work released earlier,
experience to make the i.e. History of India, Part |covered the period
subject easy to from the earliest times to the death of
understand and fun to Aurangzeb and this continuation work now
learn. covers the period after the death of
Aurangzeb to the present day. While dealing
The present edition has been revised with the historical facts, the emphasis of the
thoroughly and amendments introduced by author is to reflect on the socio-political
the Information Technology Act, 2000 aspects as well as the growth of the legal
incorporated. institutions. A chapter on ‘Makers of Indian
Law’ has also been added. The chapter on
Sakshya Vidhi Civil Services is a significant contribution,
which one does not get in any other history
(Law of Evidence in Hindi) book. On the whole a mixed menu of
by M.D. Chaturvedi historical facts and events, interpretation and
the contents are provided to provoke the
2nd Edition, 2005 Rs. 195.00
thinking of students.

HINDU LAW HUMAN RIGHTS

Hindu Law Basic Documents on

by B.M. Gandhi Human Rights
2nd Edition, 2003 Rs. 195.00 by lan Brownlie and
Guy S Goodwin-Gill
This excellent book on Hindu Law presents
the uncodified and codified law in a simple 1st Indian Edition, 2003 Rs. 890.00
language to bring home to students its Provides the reader with
principles as they operate today. a comprehensive and up- BASIC
Cochin University Law Review - The book to-date set of documents DOCLIMENTS
contains comprehensive and up-to-date in this important field of ON HUMAN
discussion of various aspects of Hindu Law law. This new edition RIGHTS
and personal law of Hindus. The book is of contains an extensive
immense use to law students, especially at collection of key
the LL.B. level. documents thoroughly
covering all elements of
the subject—with many
new and amended instruments from areas
as diverse as labour rights, children’s rights,
the human genome, and development—and
is a firmly established resource for all
students who seek a thorough grounding in
international human rights law. The editors
 provide introductory comments and
references to the relevant literature, together
INSOLVENCY
with details of State participation, and offer Law of Insolvency
a clear and wide-ranging compilation ofthe
most important instruments adopted by the by Avtar Singh
United Nations and its agencies, by regional 4th Edn., 2004 Rs. 195.00
organization, and other actors in the field.
This new edition provides invaluable
coverage for undergraduates, and will
likewise be a major asset for practitioners,
INSURANCE
lawyers and non-lawyers in both the public Law of Insurance
and private sectors.
by Avtar Singh
The book specifically meets the needs of
student of LL.B., LL.B. (Hons.) and LL.M. 2004 Edition Rs. 225.00
for several of the new courses prescribed
under the latest UGC Model Curriculum,
valid from July, 2002. INTERNATIONAL LAW
AND HUMAN RIGHTS )
A Debate Over Rights Basic Documents in
by Kramer, Simmonds & Steiner
International Law :
1st Indian Edition, 2003
Rs. 545.00 by lan Brownlie
: Written in an essay form 1st Indian Edition, 2003 Rs. 445.00
| the collection engages Since the first edition of
|in a lively debate over the book appezred in
| the fundamental 1967 this collection of |fiugeas
| characteristics of legal and basic texts has become a | iugunsisbienaihae tN
| moral rights. Each author well-known aid both to |[Baddiambettbestites
considers whether rights practicing lawyers using LAW
essentially protect international law
individual interests or materials, and to students
whether they instead of international law and
essentially enable individuals to make international relations.
choices. Those interested in the basic nature The book attempts to combine essential
of rights and other entitlements will profit instruments, like the United Nations Charter.
greatly from reading this book. Prominence is given in the book to those
This book with its emphasis on analytical documents that are important for law-making
clarity, can illuminatingly clarify that the in recent international relations, such as
debate in modern Indian jurisprudence is multilateral conventions and resolutions on
not so much about an emphasis on “rights” legal questions of the General Assembly of
or “duties”, for one correlates with the other, the United Nations.
but rather who the right ought to vest in, or,
taken the other way round, whom the duty The book is highly relevant for the
compulsory course ‘Human Rights and
ought to be owed to—the individual or the
_ community. International Law’ in the LLB programme,
as prescribed in the latest UGC Model
The book is highly relevant for the Curriculum, valid from July 2002.
Jurisprudence course for the LL.B.
programme, prescribed in the latest UGC The books seems to have been written
Model Curriculum, valid from July 2002: specially for the six courses in ‘Group A:
especially for a discussion of the ‘Right— International Law and Organisation’ in the
Duty correlation’; and it would seem that LLM programme, as prescribed in the latest
the book was specially written for the UGC Model Curriculum, valid from July
‘Theories of Rights’ course in the LL.M. 2002.
programme, prescribed in the latest UGC
Model Curriculum, valid from July 2002. 8.
International Law & the INTERPRETATION OF
Environment STATUTES
by Patricia Birnie & Alan Boyle
Ist Indian Edition, 2004
Interpretation of Statutes
Rs. 725.00
This new edition of by Vepa P. Sarathi
International Law and 4th Edn.,R/P 2005
the Environment Paperback - Rs. 395.00
provides an
authoritative account of
the main principles of
international law Interpretation
concerning protection
of the environment.
of Statutes
Written by two of the by B.M. Gandhi
foremost academics on 2006 Edition
the field, this edition has been expanded and
updated to take full account of the extensive Rs. 165.00
developments which have occurred since
the Rio Conference in 1992. There is a new
chapter on international trade law and the
environment, as well as new treatment of
sustainable development, climate change, JURISPRUDENCE
biological diversity, regulation of the global
environment, environmental impact
assessment, and the precautionary principle.
In Defense of Legal
Coverage of human rights issues and private Positivism :
international law has been expanded. Major Law Without Trimmings
new treaties on international watercourses,
international fisheries, access to by Matthew H. Kramer !
environmental justice and information, 1st Indian Edition, 2003 Rs. 550.00
nuclear safety, and environmental liability
are considered, and the growing The author is Professor of
jurisprudence of international tribunals is Legal and _ Political
included. This new edition will be the most
Philosophy in_ the
comprehensive account of the law available University of Cambridge.
anywhere. This book explores this
question in the context of
morality—whether a
International Law and legal rule must be moral
Human Rights before it can have the
character of a legal rule.
by K.C. Joshi The main argument of the book, in defence
2006 Edition Rs. 225.00 of legal positivism, is that a law to be a law
can Fe evil and a law can be purely in the
A clear, accurate and perceptive work on interests of politicians and still be a law—it
the topic of International Law and Human does not have to be good, and nor does it
Rights. The book has specially been written have to be for the benefit of the people.
to conform to the latest syllabi as being This is what the author calls the
taught in the major Universities across India. “separability of law and morality”: the key
A highly beneficial text for the students of argument of legal positivism.
law, political science, public administration, The chapters of the book discuss the
and to those taking up different competitive arguments of various authors, such as Fuller,
examinations. Dworkin, Finnis and MacCormick—who
argue that for a law to be a law it must be
morally good. This means that, for example,
in India a law to be a law must be Jurisprudence and
Constitutionally valid. And since the Indian
Constitution is considered morally good, if Legal Theory
a law is Constitutionally valid, then it is by V.D. Mahajan
morally good.
This book will be extremely useful for 5th Edn. R/P 2006 Rs. 220.00
students of all Jurisprudence courses in This book is an excellent attempt to explain
India; especially those who need to study the legal concepts and the theories of law,
the ‘Hart-Fuller debate’ (discussed in including its source, in plain and simple
Chapter 3 of the book) and the ‘Hart- language. A very popular work, the present
Dworkin debate’ (discussed in Chapter 6 of
the book), legal academics, teachers of edition has been rewritten in the light of
Jurisprudence courses, and libraries. latest researches in various parts of the world.
———: An exhaustive index and suggested readings,
Central Issues in given at the end of each chapter add to the
utility of the book.
Jurisprudence :
Justice, Law and Rights Jurisprudence
by N.E. Simmonds and
1st Indian Edition, 2003 Rs. 135.00 Legal Theory
This book aims to (in Hindi)
provide : a brief guide to
N.E. Simmonds
Bayrewecags,
)
the major theories and by Anirudh Prasad
IN =

JURISPRUDENCE: |e which 3rd Edn., 2004

fustice, Law and Right currently dominate Rs. 350.00
discussion in
Jurisprudence. The book
is a “key”, explaining
Jurisprudence and
Sweet & Maxwell
broadly who says what Legal Theory
and how one argument by P.S.A. Pillai
relates to another. An introductory book that
provides the student with some preliminary 3rd Edn. Reprinted 2006 Rs. 150.00
orientation and is aimed to put the student,
as quickly as possible, into a position where LABOUR LAWS
he or she can read the original writers with
a real understanding of their theories. It
gives the basic idea of the subject — just Handbook of Labour &
enough to get the student started. Industrial Law
In only 150 pages, the book covers the key by P.L. Malik
concepts of Rawls, Nozick, Finnis, Hart, 10th Edn., 2006 Hardbound - Rs. 560.00
Dworkin and Fuller among others in
delightful simplicity and astonishing clarity. The updated edition of this popular work
It is immensely useful for students to get the now comes with a comprehensive coverage
big picture of what each author is saying. of over 39 important labour law legislations,
alongwith very useful short case-law
The book is highly relevant for LL.B. & LL.M. notes.
students.
Apart from the latest case-law some more
old & new Acts have also been included.
Jurisprudence and Incorporation of amendments made by
Legal Theory various States, the notes given after the
statutory provisions, the text of the ‘statement
by G.C.V. Subbarao of objects and reasons’, information about
9th Edn. R/P 2006 Rs. 130.00 the date of enforcement of the various
 amendments and a detailed subject-
index are other features of this invaluable LEGISLATION
work.
The book will be of immense help to Judges,
Understanding Common
| lawyers, trade unions, law students, students Law Legislation
of |.C.W.A., C.A., C.S. and other competitive
examinations and anyone dealing with
Drafting and Interpretation
labour and industrial laws. A must have for by F.A.R. Bennion
law and commerce libraries. Ist Indian Edition, 2004 Rs. 375.00
There are many countries that use and apply
LEGAL AND the common law, which collectively may
CONSTITUTIONAL HISTORY be called the common law world. A feature
V.D. Kulshreshtha's of this world is that nowadays it largely
operates through statutes enacted by a
Landmarks in Indian Legal country’s democratic legislature, and that
_ & Constitutional History these mainly fall to be construed according
to a uniform system of rules, presumptions,
Revised by B.M. Gandhi
principles, and canons evolved over
8th Edn., 2005, R/P 2006 Rs. 235.00 centuries by common law judges. The
Also available: statutes subject to this interpretative regime
V.D. Kulshreshtha’s — Bharat Ka may be called common law statutes. They
Vaidhanik Evam Samvaidhanik Itihas are the main subject of this book, along with
Revised by M.D. Chaturvedi the said uniform system. The book distills
2nd Edn., 2004 Rs. 195.00 and updates within a brief compass the
author’s published writings on statute law
and statutory interpretation.
A Textbook of
English Legal History MARITIME LAW
by V.D. Kulshreshtha Bills of Lading in
3rd Edition, 1999 Rs. 90.00 International Law &
This is a concise account of English Legal Practice
History before the Norman Conquest. The
author has explained all the topics in a very by Dr. Justice T. Kochu Thommen
simple style that ensures easy understanding. Rs. 80.00
MEDICAL JURISPRUDENCE
LEGAL REMEDIES INCLUDING INSANITY AND
V.M. Shukla’s TOXICOLOGY

Legal Remedies Chikitsa Nyayashastra

Revised by Avtar Singh (Medical Jurisprudence in Hindi)
8th Edn., 2006 In Press by B.L. Babel
This popular work covers the legal remedies 4th Edn., 2004 Rs. 150.00
available to an Indian citizen under the
various enactments like the Consumer Jhala and Raju’s
Protection Act. Recent judgements under Medical Jurisprudence
each topic are cited and discussed. The
subject index, table of contents and table of (Illustrated)
cases facilitate easy reference. A detailed Revised by R.M. Jhala and K. Kumar
discussion on the provisions of various Acts 6th Edn., 1997 Rs. 400.00
makes the book thorough and dependable.
 MERCANTILE LAW / MUSLIM LAW
COMMERCIAL LAW
Khalid Rashid’s
Principles of Muslim Law
Mercantile Law
Revised by Prof. V.P. Bharatiya
by Avtar Singh 4th Edn., 2004, R/P 2006 Rs. 195.00
8th Edn., 2006 Rs. 390.00
This popular work is aimed at the Jabra
The new eighth edition demand of the students for a simple textboo
MERCANTILE of this popular work has
LAW without scholastic complicacies. It explains
been thoroughly revised in simple style, the principles of Muslim Law
and updated by the expounded by well-known authorities taking
learned author to into account the difficulties faced in
incorporate up to date understanding the complexities of the
amendments in the law
traditional rules practised by the different
and also include the
schools of Mohammedan Law. It tries to
recent landmark cases.
The work now covers the
synthesise these with the help of
important subjects of :(1) Company Law (2) explanations, comparative charts,
illustrations and elaborate sub-heads, to give
Contract (3) Negotiable Instruments (4)
Partnership (5) Sale of Goods and Hire a clear picture of the principles and their
Purchase (6) Consumer Protection and application.
Unfair Labour Practices and a new area (7) Also available:
Competition Law . Khalid Rashid’s — Muslim Vidhi,
The book has long been on the Revised by Prof. V.P. Bharatiya,
list of recommended books for 2001 Edn., R/P 2005 Rs. 195.00
the use of students of law and commerce,
ana students of Masters of Business NEGOTIABLE INSTRUMENTS
Administration, Chartered Accountancy,
Cost and Works Accountancy, Company Introduction to
Secretaryship, etc. The book is also
indispensable to practising lawyers and Law of Negotiable
professionals dealing with the subject. Instruments
Also available: by Avtar Singh
Avtar Singh — Vanijyik Vidhi Ke 6th Edn., 2002 Rs. 75.00
Sidhant, 5th Edn., 1996, Rs. 250.00 The book deals with the
three kinds of negotiable
MONOPOLIES instruments recognised
by the Indian Negotiable
Law of Instruments Act, 1882
Monopolies, Restrictive viz., promissory note, bill
of exchange and cheque.
and Unfair Trade Practices The rights, duties and
by Avtar Singh liabilities of the parties as
well as the legal
3rd Edn., 1993 Rs. 85.00 conditions to complete
This is a topic-wise study of the MRTP Act. the negotiable instrument are presented in
The scope of the Act, its application to a very simple style. The provisions of the
industrial and trading houses, the powers of Act (Sections 138-142) effected by the
the Commission, the meanings, definition Amendment of 1988 have generated a
and scope of the words ‘restrictive trade number of decisions on the scope of criminal
practices’ and the interpretation given by the liability for dishonour of cheques. A number
Supreme Court to various practices, is the of cases relating to cheques, the most
subject matter of this work. A must book for prominent instrument, are discussed. This is
lawyers, students of law and competitive a ready reckoner to students, bankers,
examinations, and business and industrial financial institutions, business people,
houses. lawyers, etc.
:
/
/
Negotiable Instruments Bhagidari Vidhi
by Avtar Singh (Law of Partnership in Hindi)
4th Edn., 2005 Hardbound - Rs. 490.00
by Avtar Singh
In this book for the first
time the subject of
6th Edn., 2005
negotiable instruments Rs. 100.00
has been dealt with
elaborately covering not PENAL CODE
only the latest case-law
on the subject but also Indian Penal Code
the recent amendments
in the law relating to by B.M. Gandhi
negotiable instruments.
2nd Edition, 2006 Rs. 275.00
A comprehensive introduction, discusses the A well-researched book with a modern
definition of a Negotiable Instrument and perspective incorporating the latest
the kinds of negotiable instruments, the
rights and duties of the parties as well as the thinking on the various
legal conditions to complete the negotiable aspects of Criminal
instrument, all explained in an unambiguous Law. The cognate
ate A large number of cases relate provisions in other laws
to cheques, including dishonour of cheques, and of other countries
have been discussed. have also been
The author has combined simplicity of discussed lucidly to
explanation with a style that ensures easy provide a
understanding for the reader. The book will comprehensive study.
surely prove to be indispensable for lawyers, The book examines
bankers, financial institutions, businessmen topics of burning interest, such as white
and studenis. collar crimes, capital punishment,
Also available: President's power oPpardon, corruption
of judges & judiciary, custodial deaths,
Avtar Singh — Parkramya Likhat, suicide and euthanasia, tmapssexualisny
5th Edn., 2006 Rs. 150.00 position of law as to consent in ra
cases, etc. Rights of the accused and the e
prisoner under Constitution, Cr.P.C. and
Evidence Act, a discussion thereon with
PARTNERSHIP decided Supreme Court cases is yet
another novel feature of the book.
Introduction
to
Law of Partnership Indian Penal Code, 1860
by Avtar Singh by V.B. Raju
8th Edn., 2005 Sth Edn., 2007 In Press
Rs. 150.00
The current edition
incorporates the
Bhartiya Dand
important developments Sanhita, 1860 ©
in case-law (Supreme (incorporating Information
Court as well as High Tech. Act amendments)
Courts), the concept of a
{Indian Penal Code, 1860 (in Hindi))
salaried partner, and other developments on
taxation and arbitration side. Written in a by M.D. Chaturvedi
simple and lucid style, the book is vastly
7th Edn., 2005
popular and easy enough even for the Rs. 295.00
layman to follow.
 PLEADINGS & CONVEYANCING PRE LAW SERIES
(5 YEAR LAW COURSE)
Shiva Gopal’s |
Conveyancing, Precedents Legal Economics
and Forms (interactional Dimensions of Economics
and Law)
Revised by G.C. Mathur
by K.C. Gopalakrishnan
6th Edn., 2004, R/P - 2007
Deluxe Edn. Reprinted 2005 Rs. 165.00
(with free CD-ROM containing Prepared especially for
Precedents & Forms) - Rs. 395.00 students of law, the book
avoids the mathematical
Shiva Gopal’s Conveyancing, Precedents & and statistical model of
forms is a clear, succinct and practical guide the subject, and attempts
to the subject, and has today assumed the to explain the concepts
position of a classic on the subject. Five and principles in an
editions and several reprints have gone by easily comprehensible
and this is now the sixth edition of the work. manner so as to generate ©
The new edition follows interest among law students.
the style and pattern of
the earlier editions and History of India (Part-I)
at the beginning of each
chapter an updated text
by H.V.S. Murthy
explains in sufficient Reprinted 2006 Rs. 135.00
detail the relevant law
regarding the type of
documents covered by History of India (Part-II)
that chapter. by H.V.S. Murthy & V.S. Elizabeth
In the new edition statutory law amendments Reprinted 2006 Rs. 125.00
have been incorporated at the respective This book is specially focused on the needs
places and new precedents have been added of law students. The work released earlier,
where necessary. Latest case-law has also i.e. History of India, Part |covered the period
been added to the book. from the earliest times to the death of
Aurangzeb and this continuation work now
covers the period after the death of
Art of Conveyancing and Aurangzeb to the present day. While dealing
Pleading with the historical facts, the emphasis of the
author is to reflect on the socio-political
by Murli Manohar aspects as well as the growth of the legal
2nd Edn., 2004 Rs. 175.00 institutions. A chapter on ‘Makers of Indian
Law’ has also been added. The chapter on
Also available:
Civil Services is a significant contribution,
Murli Manohar—Abhivachano Ke which one does not get in any other history
Prarupan aur Abhihastantaran book. On the whole a mixed menu of
Lekhan Ki Kala, 4th Edn., 2005, historical facts and events, interpretation and
Rs. 175.00 the contents are provided to provoke the
thinking of students.
International Relations & PUBLIC INTEREST LITIGATION
Organisation
by B.S. Murthy Public Interest Litigation
Reprinted 2003 Rs. 110.00 by Mamta Rao
Pas This work deals with the 2nd Edn., 2004 PUBLIC |
~ fundamentals of Rs. 225.00 INTEREST
International Relations LITUGATION
and Organisation in a Today, Public Interest
very simple language Litigation is an important
and descriptive style. All tool of social justice. This
basic concepts have work covers its origin
been explained lucidly. (emphasis being on the
Professor B.S. Murthy American Public Interest
. was actively associated laws), the development
with the framing of the five-year law of the concept of locus standi, the procedural
curriculum. He understands the scope of and judicial innovations, the problems and
this subject in legal education more than the expectations from the Public Interest
anyone else. Litigation. This very well researched and
lucidly written book is indeed a valuable
Sociology addition to the scarce literature on the
by T.K. Oommen & C.N. Venugopal subject.
Reprinted 2006 Rs. 165.00
This textbook meets adequately the specific RESTITUTION
needs of Indian undergraduate students. The Gerard McMeel
book is divided into two parts. Part One is a
concise introduction to sociology as a The Modern Law of
science and craft, basic sociological
concepts and prominent theories. Part Two
Unjust Enrichment
is focussed on Indian social reality. The book and Restitution
devotes attention not only to competing 1st Indian Edition, 2003 Rs. 695.00
theories and differing perspectives but also
to the complex character of social reality. The law of restitution is
The scope and the analytical tenor of the the law of failed or
book make it a valuable aid to understand mistaken transactions.
sociology, in general and Indian society, in Given that almost as
particular. many transactions fail as
succeed, it is as
Principles of important and essential
ar. area of law which the
Political Theory and student and lawyer need
Organisation to know as the law of contract. In India this
law has been codified in Chapter | of the
by L.S. Rathore & S.A.H. Haqgi Indian Contract Act (Ss 68 to 72).
Reprinted 2006 Rs. 175.00 This book written in a very simple and clear
This is a compendious volume on the style, makes this difficult and new area of
principles of political theory and law easily accessible to the lawyer and the
organisation, especially meant for the first student.
year law students of the five-year degree The largest number of cases in this area
course. It unravels the growth of liberalism relate to S. 72 of the Contract Act, and have
and Marxist thought in India. The Hindu and to do with overpaid income tax, sales tax or
Islamic conceptions of the State have been excise duty, and the most difficult question
dealt with. The pithy narration of theories before the Court is the defences available
and the critical tenor of this book make it to the defendant.
indispensable towards the understanding of
fundamental principles of the subject.
 ©” for law students, this book tries to
“ANAL LAW’Jesigned vw
eet ae |S Le

tate in a succinct and neat manner the up

‘o date principles of law with important case-
Law of law up to date. Discussion about judicial
activism and human rights also appears at
Sale of Goods & Hire appropriate places.
Purchase <<
by Avtar Singh Tort Law
6th Edn., 2005
Rs. 165.00 by Nicholas )McBride &
Also in Hindi: Roderick Bagshaw
Avtar Singh— 1st Indian Edition, 2003
Rs. 595.00
Mal-Vikraya evam
Avkraya Vidhi Written in a lively and
friendly style, Tort Law
5th Edn., 2005 Rs. 95.00 aims to provide the reader
with a clear, accessible
TAXATION and up-to-date overview
of the entire field of tort
Pratyaksh Kar Vidhiyan law.
Apradh: Abhiyojan Evam Areas of tort law that have
traditionally proved
Shastiyan difficult for students to understand — such
(Offences: Prosecution & Penalties under as the law of negligence and the law of
Direct Tax Laws in Hindi) damages — are presented here in a way that
makes the principles underlying those areas
by B.L. Babel of law easy to understand and apply. In
1994 Edition Rs. 60.00 addition, the authors and publishers of Tort
Law have combined to produce a
Law of Income Tax companion website which will provide the
reader with quarterly updates on recent
by V.K. Susha Kumari developments in English tort law and model
3rd Edition Rs. 30.00 answers to a full range of tort problem
TORTS questions.

Law of Torts TRANSFER OF PROPRETY

with Law of Statutory Compensation
and Consumer Protection Law of
by B.M. Gandhi Transfer of Property
3rd Edn., 2006 Rs. 225.00 by Vepa P. Sarathi
Sth Edn., 2005, R/P 2007 _—Rs. 185.00
This excellent and original work on the Law
of Torts has been prepared as per the new WOMEN AND LAW
syllabus prescribed by the Bar Council of
India for law students and includes the law Law Relating to
sar to compensation under the Motor Women and Children
Vehicles Act and other statutes and a
he on the Consumer Protection Act,
by Mamta Rao
2005 Edition Rs. 285.00

Student Catalogue-Sept.
2006
“=

354
MUR- PA-Q
Sees eeeeeessseseresaeeesesesseeee

3
‘.

*
 Z General Editor Prof. N.R. Madhava Menon

HISTORY OF INDIA
PART If
by H.V. Sreenivasa Murthy & V.S. Elizabeth
Reprinted 2006
mS ———————————
Rs. 125.00

CLINICAL LEGAL EDUCATION

by N.R-M. Menon
Reprinted 2003 7 Rs. 285.00

LEGAL ECONOMICS
(INTERACTIONAL DIMENSIONS OF ECONOMICS AND LAW)
by K.-C. Gopalakrishnan
Reprinted 2005 Rs. 165.00
ECONOMICS
by K.C. Gopalakrishnan & Ramdass
Reprinted 2005 Rs. 155.00

SOCIOLOGY
by Prof. T.K. Oommen & Dr. C.N. Venugopal
Reprinted 2006 Rs. 165.00

POLITICAL THEORY & ORGANISATION

by L.S. Rathore & S.A.H. Haqqi
Reprinted 2006 Rs. 175.00

INTERNATIONAL RELATIONS & ORGANISATION *

by Prof. B.S. Murthy
Reprinted 2003 Rs. 110.00
EASTERN BOOK COMPANY
i > 34, Lalbagh, Lucknow—226 001

2 O64 Ub 2-44.
aia bank Og ena
Sr pe gamete
nT!