Ancient texts were mindful of the fact that the legal discourse would undergo change with the changing times. That is why in the first chapter itself, Manusmriti, a much later ancient text, at verse 85 recognizes that there is one set of laws for men in the Krta Age, another for men in the Treta Age and still another in the Dwapara Age and a very different set in the Kali Age keeping with progressive shortening of these ages. To a simple question then, as to why one must probe for legal and jurisprudential discourse in these forgotten and abandoned ancient texts, I feel there are number of reasons to motivate exploration on antiquity apart from mere curiosity. While writing this paper, I could think of at least thirteen ways to justify undertaking of such research.
- Out of these thirteen reasons, the very first reason concerns the easy availability and accessibility of the present day legal and jurisprudential literature which is well archived, researched, indexed, and numbered for future retrieval. We are so consumed by this well documented and preserved legal literature that in keeping track of its growth and development leaves hardly any time with us to look back to our history, our past, and our roots in the ancient period. Even if feeble attempt is made for such reflection, it gets restricted to our travelling back in time to five to six centuries earlier to present century at the most. We are moving in one direction of future growth and in this forward movement, we have forgotten to reflect on our past, as if it has no meaning, relevance, connection whatsoever to our present existing state. It seems, as if we are under influence of current gadget driven technological industry which removes its old products from the market shelves in order to launch the new version of the same products. Should we treat our ancient legal and jurisprudential history at par with old products that are to be fashionably discarded? With this question in mind, the study of legal and jurisprudential system that existed before the subcontinent was conquered by the Mughal Rule or colonized by the British, is undertaken.
- Secondly, it would not be out of place to take a brief survey of the texts and traditions of ancient Aryan races as depicted in Vedas, Upanishads, Puranas, Dharmasutras, Dharmasastras, and so on with a view to learn the concept of law of the early settlers of India.[1] Probing history of law and jurisprudence in these ancient sources will open up new insights on prevalence and relevance of law in ancient period and how it influenced those who shaped the present day legal and justice system.
- Thirdly, historical thinking is quite different from the other type of thinking. It is reflective in nature. In historical thinking, we try to recall what is forgotten.[2] An attempt to re-discover our past may acquaint us with critical component of India’s diverse legal and jurisprudential history and how ancient dialectical traditions evolved over time and how in them one can find the norms for regulating human conduct, which till today hold good and found with different nomenclature in the form of statutes.
- Fourthly, many of us, without social studies background, believed that the law and jurisprudence was a gift to India by the foreigners who came to conquer and settle here, whether they be the Mughals or the French or the British. Many of us are under an impression that before India was discovered by the outside forces, there was a vacuum as there existed no law or justice concept in India. This false notion that the subcontinent was not ruled by any law or regulation till its foreign invasion gets unsettled by a detailed study of ancient sources which point to human conduct being a subject of number of regulations. These very same regulations in ancient texts on human conduct, on relationship of human beings inter se, with the sovereign, with the nature, and so on were transposed to legal norms. In fact, ancient sources were foundation for raising modern environmental protection awareness. Ancient kings like Pallavas and Cholas, had detailed regulations for management of village tanks; Mauryans on the management of village forests.[3] A quite modern idea of a demographic survey was known to ancient India which led to compilation of Arthashastra.[4] We find in ancient sources, numerous directives on areas of public property management, environment protection, the authority of the state on tax collection, king’s duty to do justice, contractual liabilities, criminalization of human conduct, theories on evidence, proof, punishment and so on.
- Fifthly, as observed by Lingat, in building up their laws, ancient civilization did not take coercive element as their starting-point which has served the West as a foundation for characterizing and distinguishing a legal rule from other rules to control the human activity. Ancient civilization, instead took duty as their starting point and from it derived a more general notion which exceeds the domain of law in many respects without actually comprehending it entirely. They did not make any attempt specially to define rules to constrain people by an external or physical sanction. But they taught people the rules of conduct ought to be observed by reason of their condition in society—and amongst these rules, the rules of law are to be found.[5] The classic example of this duty-based jurisprudence is to be found in Chapter 18 of Vamana Purana describing 16 hells.[6] Nature of these hells provides a clue on nature of human activities that were prohibited for mankind at that point of time. What is interesting to note is that till today these activities remain prohibited by the present day criminal laws using the coercive element of sanction under the influence of western jurisprudence! Therefore, the narrative of vacuum to regulate human conduct before the advent of different races has to be countered.
- Sixthly, from the works of Naradasmriti, Brhaspatismriti and Katyananasmriti we discover a much developed and systematic picture of judicial procedure as was to be followed by the law courts in ancient India. We find a systematic and exhaustive discussion of the various aspects of the administration of justice in these smritis. Naradasmriti describes different aspects of vyayahara or a judicial procedure, and in Brhaspatismriti one can find the function of the members of a court, different titles of law, ordeals and so on.[7]
- Seventhly, not only it is wrong to claim nonexistence of legal and jurisprudential discourse in ancient India, but from the works of Lingat one learns that much parts of South East Asia still retain historical tradition directly related to India. Research into the history of social and political institutions of Cambodia that prove traces of dharmasastra over there. This prove that India exported her concept of society and law, and probably practitioners in it also.[8] Lingat is also of the opinion that the duty based ancient Indian legal system before it was replaced by the rights based system inspired from the West, was propagated in the company of Buddhism in different parts of China also.[9]
- Eighthly, the value of studying ancient legal and jurisprudential system is analogous to the value of studying any discourse on non-binding laws. We study the laws that are repealed as even after their repeal, such laws continue to cover situations that took place when the repealed law was still in force. We also study such laws to assess if the new laws are working more effectively than the repealed ones. With the soft laws, ancient legal and jurisprudential discourse shares two features. First, the soft law is best understood as a continuum, or spectrum, running between fully binding treaties and fully political positions. Therefore, soft law dims in importance as commitment of states get weaker, eventually disappearing altogether.[10] The ancient legal and jurisprudential discourse like the soft law is not binding and provides only proof of existence of such discourse before it disappeared with time and was replaced by successive other systems. The second common feature of ancient legal and jurisprudential discourse with the soft law is the breadth and vastness of both.[11] Further, from Epstein, we learn that the knowledge of ancient legal and jurisprudential discourse could not only help better understanding of the present complex social system but also how the present system might be made to work better.[12] Many scholars in the law and economics movement have written with great insightful about ancient legal institutions.[13]
- Ninthly, about the general discouragement and criticism faced in undertaking such study on grounds of its irrelevance to the present time and context and because of its biased framework that contradicts the basic principles of equality, freedom, dignity, equity and fairness – it could be pointed out that the ancient jurists were less hypocritical and less diplomatic in their drafting than the present day draftsmen who perpetuate subtle inequalities that cannot be deciphered without a huge experience. The present day legal system, devised so many centuries later, still perpetuate inequalities without making any noise about it. Though on the face of it, it appears objective, fair, just; in operational reality, it is so entangled that it negate these ideals. Further, even today under umbrella of modern legal system we have to confront now and then the subjective biases that were at least clearly spelt out by the ancient law givers. Till today we are fighting for equality amongst races, amongst nations, amongst genders, and so on. As to biases perpetuated through Manusmriti, Olivelle traces background for emphasis on inviolability of Brahmin in his person and in his property, his immunity from death penalty, from taxes, from confiscation of property (verse 7.88)[14] to urgency to defend Brahmanical privilege to re-establish the old alliance between priesthood and royalty, an alliance that would benefit both the Brahmin and the king. According to Olivelle, the reason behind perpetuation of this socio-political Brahaminical hegemony were threefold. First, Asoka’s reforms had displaced Brahmin from his privileged position within the social structure. The special relationship between political power and religious establishment represented by Brahmin was broken. His prohibition of animal sacrifices, undercut the very raison d’etre of Brahmanical privilege.[15] Second, Mauryas, as well as the Nandas who preceded them, were considered at least within Brahmanical historical memory as Sudras. The usurpation of Ksatriya royal privileges by Sudras and ensuing suppression of Brahmins created mixture of social classes – a threat to Brahmanical ideology.[16] Third, political reality of foreign invasions and partiality of foreign rulers to Buddhism[17] too threatened Brahmanical privilege. Thus anti Sudra and anti Mleccha (foreigner, barbarian) tone of Manusmriti. Though the Dharmasutras also contained anti-Sudra passages, but, a virulence in Manusmriti’s rhetoric vis-à-vis Sudras have led many historians to search for a subtext to it. Western historians were baffled as to how could the lowest class of society with little access to material resources pose such a threat to social order and to Brahmanical hegemony? Why were Vaisyas, depicted as agriculturalists and traders, were not a threat to Brahmin-Ksatriya alliance? As per Olivelle, Sudras were once in power and posed a real threat to Brahmanical hegemony, and for not allowing the history to repeat itself,[18] Manusmriti advised Brahmin (4.61) to not live in a kingdom ruled by a Sudra. Hence, we have a clear proof of the kingdoms ruled by Sudra.[19] By considering the subtexts to threats that ancient law contributor perceived for themselves, and by discarding the part of the discourse that was result of such insecurity, there is still a lot to be explored from the works of ancient jurists.
- The tenth justification for undertaking study on ancient legal and jurisprudential system is to be traced to the lack of interest in legal academia from India in ancient texts and traditions. There are as many as 44 well known German Indologists, and equal high number of well-known French, British, Dutch or American Indologists about whom we know very less. Their translations of ancient texts and traditions led to the preservation of so many recensions of manuscripts from the lost era. Their efforts in exploring the nature of legal and jurisprudential discourse in ancient era by not only learning the Sanskrit language but even undertaking great travels in search of manuscripts at different locations in India, led to preservation, construction, reconstruction, dating, interpretation and translation of our ancient transcripts. Even with so much primary work being done already, a sheer laziness accompanied by indifference to ancient texts has allowed the present day academia to brush aside study, research, teaching and discussions on ancient legal and jurisprudential discourse. It is indeed sad state of affairs that very few Indians opt for Indology and Indians well versed in three languages: Sanskrit, Hindi and English are decimating. This will shut down the flow of knowledge from ancient texts.
- The eleventh reason for study on antiquity is to check wrongful reliance on spurious and corrupt texts in context of what prevailed in ancient India by persons in order to justify their biases. According to Kosambi, the Manusmrti injunction (8.41) that judicial (dharma) decisions were to be given only after due consideration of the – particular law and the usage of the region, castegroup and family group, guild etc. was apparently followed for a long time.[20] However, no written record exists of any cases tried under this heterogeneous system. Further, the scholars of ancient texts did not take note of the reality around them. When the question of Hindu widow remarriage was argued by reformers at the beginning of this century, even the most scholarly like Bhändärkar looked only to correct interpretation of the ancient texts and the fact that population in their immediate vicinity allowed widows to remarry (and permitted divorce when either party felt aggrieved) made no impression upon them. Kane’s monumental history of Dharmasâstra[21] meticulously restricts discussion to Smrti documents, avoiding any disagreeable contact with anthropology, sociology, or reality. This tunnel vision persists in all disciplines concerned with Indology.[22] The misconceptions around ancient texts and traditions has potential to harm the reputation of Indology as a discipline as shown by a Rajasthan High Court judge claiming an alternative reproduction process for the bird peacock than through normal reproduction process.[23] The judge has not revealed his sources for making this claim of alternate reproduction process! Further, though Justice Shekhar Kumar Yadav of Allahabad High Court in his order on rejection of bail of person accused of killing a cow after stealing it, has referred to Vedic literature, epics Ramayan and Mahabharat as one of the reason for justifying his order, the judge has vaguely named these sources and not mentioned the exact verses, books, chapters etc. He quotes the sage Dayanand Saraswati without telling reader as to which era sage, which works of his are being relied upon. No proof is provided as to which book, which translation, which exact hymn or verse, the judge has read himself for quoting.[24] Such reasoning without actual reference to ancient texts, depict poor knowledge on ancient texts. It therefore becomes important to create a greater understanding amongst the legal and judicial fraternity on what could be the sources on legal and jurisprudential discourse of ancient times from which they can borrow concepts and ideas to support their reasoning.
- The twelfth reason for exploring ancient legal and jurisprudential discourse is to understand how it has helped in evolution of modern legal discourse. For instance, take the case of legal principle of res judicata. Very few will know that this principle could be traced to Mitakshara[25] declaring one of the four kinds of effective answers to a suit is “a plea by former judgment” and to a verse 10 of Katyayanasmriti laying down that “one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment”[26]. Smriti Chandrika[27] and the Virmitrodaya[28] base the defence of Prang Nyaya (former decision) on ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments. It seems that it may take many years and one may have to bear the brunt of silly jokes and even encounter the ridicule before everyone voluntarily believes that ancient India besides discovering numeral zero had also contributed to evolution of important jurisprudential concepts that we now credit the west for importing on our shores. The concept of res judicata is one such example.
- The thirteenth reason for exploring ancient texts is to clarify to the courts as to which could be considered as a better sources of ancient law and jurisprudence and relied upon and which sources would be considered primary and binding. While pre-independent India’s judges worked hard to trace the source of any doctrine, like Justice Tek Chand of Lohore High Court, who traced the history of doctrine of res judicata in ancient jurisprudence by naming all the sources of such doctrine,[29] such diligence to trace the source of any philosophy to ancient times is not found amongst judges of post independent era. Take for instance the case of Kamalammal and Ors. v. Venkatalakshmi Ammal and Ors.[30] While dealing with the rights of a disqualified heir, the Supreme Court of India relied on: (i) Vishnu Smriti Chapter XV, Sections 32-35; (ii) Yajnavalya Smriti by Mitakshara, Ch. II, Section 10 which deals with obstructed heritage; (iii) Sapratibandha Daya and Sarasvati Vilasa, a commentary from the southern part of the Madras Presidency. The court referred the article by Mr. Venkatasubrahmanya Aiyar wherein he had described an error committed by Sarasvati Vilasa in understanding Smritis and earlier Commentaries. In Amirthammal’s case[31] reliance was placed by Madras High Court on placita 148 to 152 of Sarasvati Vilasa to distinguish between a share-enjoyer and a share-taker. Mr. Aiyar challenged the correctness of the decision in Amirthammal’s case, on grounds that the distinction given by the Sarasvati Vilasa was illogical and unsound and not according with the Smritis. According to Mr Aiyar, the Sarasvati Vilasa is a commentary of doubtful authority and cannot be utilized for laying down propositions or drawing inferences which are not supported by other ancient law books. The Supreme Court did not accept this opinion and went on to observe that out of the Commentaries which are authorities in South, undoubtedly the foremost is the Mitakshara of Vijnaneswara, followed by the Smriti Chandrika and next by the Sarasvati Vilasa. Sarasvati Vilasa is said to be the work of Pratapa Rudra Deva who was a King in Orissa and who reigned in the first quarter of the sixteenth century. The Supreme Court of India relied on precedents[32] from Madras High Court which had upheld the authority of Sarasvati Vilasa. The Supreme Court on the basis of these decisions concluded that Sarasvati Vilasa cannot be discarded as not an authority on determining the rule of Hindu law in southern part of India and pointed out that it is not of greater authority than the Mitakshara.
The recent stirring of interest in ancient Indian legal texts and tradition in legislators, bureaucracy and judiciary is comparable to mentality of blindfolded persons decoding an elephant as per their perception. The complications are arising out of the sources of ancient law and jurisprudence. There is no clue to many as to which sources should be relied upon or given preference over the others, or how all these texts evolved over a time, which are to be considered superior in case of conflict in ideas, and what rules permit overlooking of earlier sources over the later sources and so on. Without such understanding, it has been found decision makers relying wrongly on inferior or later ancient texts even when the pure and superior sources are available. Hence there is a need to develop basic understanding on ancient texts and traditions and what legal and jurisprudential norms emerge from these.
[1] Madhurkar M. Patkar, Narada, Brhaspati and Katyayana: A Comparative Study in Judicial Procedure, Munshiram Manoharlal Publishers Pvt Ltd. New Delhi 1978
[2] B. Sheik Ali, General Presidential Address: Ideas in History, 47(1) Proceedings of the Indian History Congress 1986, pp. 3-42
[3] Chattrapati Singh, Dharmasashtras and Contemporary Jurisprudence, 32 (2) Journal of ILI (1990) p.179-188
[4] The Arthashastra was compiled through the ingenious method of appointing village officials, who kept a record of everything that happened inthe village, including its trade and agriculture, the number of inhabitants, their caste, age, profession, history, income and expenditures. This information was then verified by other officials through their own intelligence. See B. Sheik Ali, General Presidential Address: Ideas in History, 47(1) Proceedings of the Indian History Congress 1986, pp. 3-42
[5] Robert Lingat, The Classical Law Of India, (translated from the French with additions by J. Duncan M. Derrett, OUP, Delhi (1998)
[6] To quote Dr S.P Bhagat, Vamana Purana: Chapter 18: Description of Hells: Lord Brahma, on being enquired by Sanat Kumar on the different hells said- “Those who have illicit relationship or are in the company of sinners go to the first heil. Feeling of trees and stealing the fruits of others’ tree lead to the second hell. People who kill creatures unworthy of killing and those who quarrel over property dispute go to third hell. Terrorising the living creatures and deviating from one’s own religion lead to the fourth hell. Behaving deceitfully with friends and taking false oath lead to the fifth hell. Keeping somebody in captivity and causing hurdles in the path of others would lead to the sixth hell. Stealing of royal property or copulating with the queen leads to the seventh hell. Greed and misuse of hard earned money lead to the eighth hell. Stealing of Brahmin’s property and condemning others lead to the ninth hell. People who lack courtesy or who steal sacred texts go to the tenth hell.” Altogether, Lord Brahma described about 16 hells. In a way, from these hells description, one learns about nature of crimes that were prohibited.
[7] Madhurkar M. Patkar, Supra n.1
[8] Robert Lingat, Supra n.5
[9] Ibid.
[10] Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. LEGAL Analysis 171 (2010).
[11] Anything that is law like is described as a form of soft law. This includes formal written documents signed by the states, informal exchanges of promises through diplomatic correspondences, votes in international organizations and more. There are so many forms of soft law that it can only be considered as a group of subjects rather than a single one. The same holds true for ancient legal and jurisprudential discourse as the next part of this paper explores.
[12] Richard A. Epstein, “The Modern Uses of Ancient Law,” 48 South Carolina Law Review 243 (1997).
[13] See, e.g., Robert C. Ellickson & Charles DiA. Thorland, Ancient Land Law: Mesopotamia, Egypt, Israel, 71 CHI.- KENT L. REv. 321 (1995); Saul Levrnore, Variety and Uniformity in the Treatment ofthe Good-Faith Purchaser, 16 J. LEGAL STUD. 43 (1987); Geoffrey P. Miller, Contracts of Genesis, 22 J. LEGAL STUD. 15 (1993).
[14] Patrick Olivelle, THE LAW CODE OF MANU: A new translation based on the Critical Edition, Oxford World’s Classics, OUP, Clarendon Street, Oxford (2004)
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] The Krtyakalpataru of Bhafta Lakçmldhara (a minister of king Govindacandra Gähadaväla of Kanauj); Gaekwar Oriental Series CXIX for vol. 12 of the work, being the vyavahära-kända. See D. D. KOSAMBI, COMBINED METHODS IN INDOLOGY, Indo-Iranian Journal , 1963, Vol. 6, No. 3/4 (1963), pp. 177-202
[21] P.V. Käne, A History of Dharmasâstra (Ancient and mediaeval religious and civil law), 5 volumes (still incomplete), Poona, 1930-1962. Though the vast majority of India’s people are südras in this classification, there is no way to determine just what südras were actually meant by the few authors who wrote on südra rites and legal usage.
[22] See D. D. KOSAMBI, Supra n. 20
[23] Interview by judge to reporters available at: https://www.ndtv.com/india-news/peacock-dont-have-sex-says-judgewho-recommended-cow-as-national-animal-1706363
[24] Reported case Javed v. State of Uttar Pradesh, Dandic Prakirn Aavedan Patra Sankhya 22400 of year 2021
[25] Book II, Chap. I, Section V, verse 5
[26] Macnaughten and Colebrooke’s translation, page 22.
[27] Mysore Edition, pages 97-98
[28] Vidya-Sagar Edition, page 77
[29] Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi v. Mussammat Bhulli (ILR Lahore 8 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence. Same was quoted by the SC in M. Nagabhushana vs. State of Karnataka and Ors. AIR 2011 SC 1113
[30] AIR 1965 SC 1349
[31] AIR 1942 Mad 693, as well as in AIR 1946 Mad 287
[32] Jijoyiambe Bayi Saiba v. Kainakshi Bayi Saiba, 3 Mad H C 424 (452), Kattama Nachiar v. Dorasinga Tevar, 6 Mad H C 310, Appandai Vathiyar v. Bagubali Mudaliar, ILR 33 Mad 439
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