JURISPRUDENCE - I (LEGAL METHOD)

Course Code: LB-101

(ADDITIONAL READINGS)

Compiled and Edited By

Alka Chawla
Anupam Jha
Seema Singh
Anumeha Mishra

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI- 110 007

NOVEMBER 2024
(For private use only in the course of instruction)
 1

Course Name:
Jurisprudence I (Legal Method) Course Code: LB-101
Course Objectives:

• To give an overview to the students about law and legal systems prevalent in the
world and India in particular, so that they could understand the jurisprudence of all
subjects taught to them over a span of three years.
• To learn the jurisprudential basis of various concepts which are continuously being
dealt with in law.
• To sensitize the students to adopt a pragmatic approach in studying all the subjects
in the six semesters by teaching them how to read cases and ways to club theory
with practice. It is a subject which forms the foundation of the law degree.
• To make the students trace the origin and evolution of law and to understand major
legal systems of the world.
• To familiarize the students with linkage of law with other social science.
• To familiarize the students with the growth of legal profession in India and the laws
governing the profession.

Learning Outcomes

• Students will be acquainted with the basic ideas and fundamental principles of
Law.
• Knowledge of Law and Legal precepts will acquaint the students and will help to
develop their skill.
• Students will be able to identify socio-legal issues and challenges and would be
able to provide solution within the parameters of the law, justice and other social
norms.
• It will provide a holistic approach to study law and legal systems.
 2

Course Content:

Unit- 1 -Jurisprudence with Bhartiya and Western perspective

a. Origin and nature of Jurisprudence

b. Need and Scope of Jurisprudence
c. Legal System in ancient India and its comparison with other major legal
systems of the world.

Suggestive Readings
● Ludwik Sternbach – Juridical Studies in Ancient Indian Law (2 Vols.), Motilal
Banarsidass, Delhi, 1965.
https://archive.org/details/juridicalstudiesinancientindianlawludwiksternbachpart1
_202003_655_a/page/n27/mode/2up?view=theater
● Tiwari,K.N.&KrishnaKumari–Ancient Indian Law(3Vols.),Prashant
PublishingHouse,Delhi,2009
● M. Rama Jois – Ancient Indian Law, Universal Law Publishing Pvt. Ltd., 2002,
Reprinted 2015.
● M. Rama Jois – Legal and Constitutional History of India (Ancient Indian Judicial
andConstitutionalSystem), Universal LawPublishingPvt. Ltd., 2016.
● Ancient Indian Law by Justice D.P.Singh, Published by Kitabwale2022.
● N.R.MadhavaMenon,OurLegalSystem.
● Rene David& J.E.C. Brierley,MajorLegalSystemsinthe WorldToday 17-31, 484-
515 3rd ed. 1985.
● Reflections on Ancient Indian Jurisprudence in the current social and judicial set up
by Anupama Goel and Seema Singh, Published by Mohan Law, 2021.

Unit -2 - Structure of Indian Legal System

a. Basic Principles of Law , Rule of Law and Separation of powers

b. Customary dispute resolution mechanism in Bharat- Continuity and
sustainability
c. Legal Services, Legal Profession and Advocate’s Act

d. Hierarchy Of Courts And Jurisdiction

Suggested Readings

• "A. V. Dicey: Law of the Constitution". 1889. Retrieved 12 April 2011.

• कौटिल्य -Theories of Punishment) KautilyaArthshastra – Editor Rajsehwar Shastri
Dravid, SSU Varansi)
• The Tradition And Significance Of Mediation In India Section A-Research Paper, Eur.
Chem. Bull. 2023, 12(Special Issue 10), 802 –808 802, THE TRADITION AND
 3

SIGNIFICANCE OF MEDIATION IN INDIA by Anindita Sarkar (Dutta)& Prof. (Dr.)

Ishita Chatterjee.
• Open Access Journal available at www.jlsr.thelawbrigade.com, JOURNAL OF LEGAL
STUDIES AND RESEARCH [VOL. 2 ISSUE 5] ISSN 2455-2437 ,DISPUTE
RESOLUTION IN RURAL INDIA: AN OVERVIEW, Written by Dr. Laju P. Thomas
Hsst, St Mary's Hss, Thiruvananthapuram.
• Advocates Act & Professional Ethics: Law Relating to the Legal Profession in India, by
Nirmalendu Dutt-Majumdar, Eastern Law House, 1975
• Jurisprudence and Legal Theories by V.D.Mahajan, 2001, Published by Eastern Book
Company.
• Studies in Jurisprudence and Legal Theory By N. V. Paranjape, 2016, publishd by Central
Law Agency

Unit 3 -Sources Of Law

a. Morality
b. Custom
c. Legislation
d. Precedent

Suggested Readings
• Law and Morality-Readings in Legal Philosophy, Arthur Ripstein, David
Dyzenhaus, Sophia Reibetanz Moreau, University of Toronto Press ,June 2007.
• Custom, Law and the British Empire in Northeast India: Select reading from the
colonial archive by Nandini Bhattacharya
• Morality in Law , By Justice D.P.Singh, Eastern Book Company,2012.
• Jurisprudence and Legal Theories by V.D.Mahajan, , Published by Eastern Book
Company, 2001.
• Studies in Jurisprudence and Legal Theory By N. V. Paranjape, 2016, published
by Central Law Agency.

Unit 4 –Concept of Natural law

a. Bhartiya Perspective-Ritam &Dharma

b. Western Perspective- Thomas Acquinas ,Auguste Comte

Suggested Readings

• Kane,PandurangVaman–HistoryoftheDharma
śāstra,BhandarkaraOrientalResearchInstitute, Poona,1973,Vol.3,p.2
• Law and Spirituality-Reconnecting the Bond by Raman Mittal and Seema Singh,
Published by Kitabwale, 2024.
• On Being and Essence by Saint Thomas Aquinas, Published by Hackett
Publishing Co, 2012
 4

• The Positive Philosophy of Auguste Comte,by Auguste Comte, Vol.2 Cambridge

University Press,2009

Unit 5- Analytical Positivism

• Chankay's concept of State and Law
• Austin’s Concept of Law
• H.L.Hart’s Concept of Law

Suggested Readings

● The Province of Jurisprudence Determined by John Austin, Published by

Legare Street Press.
● The Concept of Law by H. L. A. Hart, Clarden Law Series,1961

Unit 6-Historical And Sociological School Of Thought

• Kautilya’s Arthshastra with special reference to Social Justice
• Karl Von Savigny’s Volksgeist Theory
• Roscoe Pound’s Theory of Social Engineering

Suggested Readings
● Jose Varghese, KautilyaArthashastra; A Lawyer’s Point of view (2021)
● The Arthashastra (L.N. Rangrajan as well as Samashastri)
● System of the Modern Roman Law by Friedrich Karl von Savigny, Published by Hard
Press,2019.
● AN INTRODUCTION TO THE PHILOSOPHY OF LAW BY ROSCOE POUND,
MPP House Press

Unit-7-Jurisprudence in Bhartiya Scriptures

• The Ancient concept of ‘Dharma’

• The Shrutis
• The Smritis

Suggested Readings
 5

● Kane,Pandurang Vaman–History of Dharmasastra(5Vols.),Bhandarkar

OrientalResearchInstitute,Pune,1930-1962,
https://archive.org/details/in.ernet.dli.2015.37698/page/n811/mode/1up

● Ganesh,S. –VedicConceptofDharma,Purvamimamsa,Vol12,September2021.

● Vada in Theory and by Radhavallabh Tripathi The Secretary Indian Institute of

Advanced Study Rashtrapati Nivas, Summerhill, Shimla

● Smritichandrika by Devana Bhatta, translated by T.Kristnasawmi Iyer, Published

by Law Book Seller and Publisher,1933

IMPORTANTNOTE:

1. The topics, cases and suggested readings given above are not
exhaustive. The Committee of teachers teaching the Course
shall be at liberty to revise the topics/case/suggested readings.

2. Students are required to study/refer to the legislations as

amended from time to time, and consult the latest editions of
books.
 6

PV Kane, History of Dharmasastra (Bhadarkar Oriental Research Institute,1930) (Vol. I)

HISTORY OF DHARMA^ASTRA.
I. Meaning of Dharma.
DJxtrfna is one of those Sanskrit words that defy all attempts
at an exact rendering in English or any other tongue. That word has
passed through several vicissitudes. In the hymns of the Rgveda the
word appears to be used either as an adjective or a noun (in the form
dfmrtmn, generally neuter ) and occurs at least fifty-six times therein.
It is very what the exact meaning of the word dharma
difficult to say

was in the most ancient period of the vedic language. The word
is clearly derived from root dhr ( to uphold, to support, to nourish).
In a few passages, the word appears to be used in the sense of ‘
up-
holder or supporter or sustainer’ as in Rg. I. 187.1' and X. 92.2*. In
these two passages and in Rg. X. 21.3* the word dhunna is clearly
masculine. In all other cases, the word is either '1 jviously in the
neuter or presents a form which may bv either masculine or neuter.
In most cases the meaning of dharman is ‘
religious ordinances or
rites’ as in Rg. I. 22. 18, V. 26. 6, VIII. 43. 24, IX. 64. i &c.
The refraindharmani prathamanyasan ’ occurs in Rg. I. 164,
‘
tani

43 and 50, X. 90. 16. Similarly we have the words ‘ prathama

dharma ( the primeval or first ordinances) in Rg. III. 17. i. and X.
’

56.3 and the words sanata dharmani (ancient ‘

ordinances)
occur in Rg. III. 3. i. In some passages this sense of ‘religious
rites’ would not suit the context, IV. 53. 3% V. 63. 75,
e. g. in

VI. 70. VII. 89. 5^ In these passages the meaning seems to be

‘
fi.xed principles or rules of conduct In the Vajasancyasaihhita
the above senses of the word dharman are found and in 11 . 3 and V.
27 we have the words ‘
dhruvepa dharmaij*V. In the same Saihhita

occurs in 34.7.
1 5 5^ 3*^^^ I

^^
I

* angi 1
 7

y )

2 History cf DharmaiiSjttm

the form ^dharmah ’

( from dharma ) becomes frequent, e. g, X,
29, XX. 0. The Atharvaveda contains many of tliose verses of the
Rgvcda^in w hich the w’ord dhanmtn occurs, e. g. VI. 51. 3 ( acittya
diet^va dharma yuyopima), VII, 5. 1 ( Yajncna yajnamayajanta
Vll^y. 5 (tnni pada vicakramc). In XI. 9. 17 the word ‘dharmah’
se^is to be used in the sense of ‘
merit acquired by the performance
^religious rite.s'\’ In the Aitareya-hrainnana, the word Jbarma
seems to be used in an abstract sense ’, viz. ‘
tlic w hole body of re-
ligious duties’. In the Chandogya-upanisad*’ (2.23) there is

an important passage bearing on the meaning ol the word dharma

^
there arc three branches of dharma one is (constituted by) sacrifice,
study and charity ( i. e. the stage of house-holder ) ;
the second ( is

constituted by ) austerities ( i. e. the stage of being a hermit ); the

third is the brahmacarin dwelling in the house of his teacher and
himself stay w'ith the family of his teacher till the last ;
all

making '
^ to the worlds of meritorious men ; one who abides
these attain ..
attains immortality.' It w'ill be seen that in this
firmly in bralw // >
stands for the peculiar duties of the
^

passage the word dhat. ‘‘

.mssion establishes how' the word
airamas. The foregoing bnel dis. .. , .

iransitions oi mcai..iig and h

passed through several
came to be ‘the privileges,
ultimately its most prominent significance
his standard ol conduct
as a member
5uSs and obligations of a man,
ol the casus, as a
as a memoer oi one
of the Aryan community, the word
of life.’It is in tins sense that
person in a particular stage
exhortation to the pupil con-
Lems to be used in the well-known truth piactisc
1
‘ tl'c
1 ) 1-
uined in the 'I'aittiriya-upamsad C
the same sense that the Bhaga-
( your
own ) dhnwa &c.’ It is in
in the oli-quoicd x erse
svadhanue ‘

vadgita uses the word dhartM

Mcyah.’ The word is
employed ui tins sense m the
nidhanarii
Manusmru tells us diat the
dharmakuirn Wxmwc. Tire ( i. 2 )

~8
^ vTO =51 I
’F
“

at A. Br. VIII. 13. The form dhar man ooonra

vide also a similar passage
Upanisads and in classical Sanskrit in Bahuvrlhi compounds, e.g.
in the
in tbe

“
Vide ^isaq[5l III* 4. 18-*0 » disoussioD of this passage.
 8

i. Meaning of Dhanm 3

sages requested Manu to impart instruction in the dharmas of all the

vanfis. The Yajhyavalkya-smriti ( I. i
) employs it in the same
sense. In the Tamra-Vartika” also we are told that all the dharma-
sutras are concerned with imparting instruction in the dharmas^ of
varijas and Ahtinias. Medhatithi commenting on Manu s:'')s

that the expounders ol rw/z-hj dilate upon as five-fold, e.

varnadharnio, asraiiui-Jhiii via, varttdiraiua-dhanim, iiahnittihadharmn

as priiyascitta ) and f^uiiadhartna ( the duty of a crowned
( such
king, whether Ksatriya or not, to protect )“. It is in this sense

that theword dlianiui xvil! be taken in this work. Numerous topics

are comprehended under the title dharmasSstra, but in this work
prominence will be given to works on dedrd and vyavahdra ( law
and administration of justice ).

It would be interesting to recall a few other definitions of dharma.

Jaimini '5 defines dharma as ‘a desirable goal or result that is indicated
by injunctive (Vedic) passages.’ The word dharma would mean .such
rites as and are enjoined by Vedic pas-
are conducive to happiness
sages. The Vaisesikasutra'-* defines dharma as ‘that from which results

happiness and final beatitude.’ There are several other more or less
’
one-sided definitions of dharma such as paramo dharmah ‘
ahiihsil

( AnusS-sanaparva 115. i.), ‘anrfamsyam paro dharmah’ (Vanaparv’a

373. 76),
‘
acarah paramo dharmah ’
( Manu I. 108 ). H.1rita defin-
ed dharma as .srutipramanaka'*
‘ ’
( based on revelation ). In the
Buddhist sacred books the word dharma has several senses. It often
means the whole teaching of Buddha (S.B.E.Vol. X. p. XXXllI).
Another meaning of dharma peculiar to the Buddhist system is ‘ an
clement of exi.stencc, i. c. of matter, mind and forces'*.’

The present work will deal with the sources of dharma, their
contents, their chronology and other kindred matters. As the

12 on 19. 1 and on 2.25 give the same fivefold

olassification.

1® 1* *•
v
\
1* i ^ «r: i

1® SRSTIHT
1 i «n^
^ [
quoted by on 2. 1.

16 Vide Dr. Stcherbatsky’s monograph on *

the central conception of Buddh-
iim* (1923 ) p. 73.
 9

4 flifdfirii nf Dharmaiaaira

material is vast and the number of works is extremely -large, only a

few selected works and some important authors will be taken up for
detailed treatment. More space will be devoted to comparatively
early works.

2. Sources of Dharma.

The Gautamadharmasutra'" says ‘

the Veda is the source of
dharuta and the tradition and practice of those that know it
( the
Veda ).’ So Apastamba'* says the authority ( for the dharmas ) is
‘

the consen!>us of those that know dbartim and the Vedas. ’ Vide
also the Vasisthadharma-sutra’’ ( I. 4-6 ). The Manusmfti*® lays
down five different sources' of dharma ‘ the whole Veda is ( the fore-
most of dharma and ( next ) the tradition and the practice
) source
of those that know it (the Veda); and further the usages of virtuous
men and self-satisfaction.’ Yajnavalkya^’ declares the sources in a
similar strain ‘
the Veda, traditional lore, the usages of good men,
what is agreeable to one’s self and desire born of due deliberation
this is traditionally recognised These
as the source of dharma,’
passages make it were
clear that the principal sources of dlmnita
con-
ceived to be the Vedas, tlie Smrtis, and customs. The Vedas do
not contain positive precepts {x<idhis) on matters of dharma in a con-
nected form ; but they contain incidental references to various topics
that fall under the domain of dharmasastra as conceived in later
times. Such information to be gathered from the Vedic Literature
is not quite as meagre as is commonly supposed. In another place*^
I have brought together about fifty Vedic pa.ssages that shed a flood

of light on marriage, the forms of marriage, the different kinds of

sons, adoption of a son, partition, inheritance, iraddha, stridhana.
To take only a few examples. That brotherlcss maidens found it
difficult to secure husbands is made clear by several Vedic passages.

I’’
^53^ I ^ I fR. I- 1-2.

18 Jmm 1 stit. % i- 1- 1- 2.

18 w: I
i wiv; 1

^11- 6.

21 ^ fqqiTItJR; 1 ^1^
II ^fr. 1 .

Vide JBBRAS. vol. XXVI ( 192 S), pp. 57>82 .

 10

2. Sources of Dharma S

‘ woman ) growing old in her parents* house, ^©ray to thee

Like ( a
as Bhaga from the seat common to all*’*. Vide also Rgvedai I 124. 7;
IV. 5. 5 and Atharvaveda I. 17. i and Nirukta III, 4-5^ ^ These
passages constitute the basis of the rules of the dharmasutrav? and
the Yajnavalkya-smrti against marrying a brothcrless maiden'^'. 'jJ^his

bar against marrying a brothcrless maiden seems to have been d ue

to the fear that su<:.h a girl might be an appointed daughter
and that a son born of such a girl would be alliliated to his mother-js
father. This custom of putrikd is an ancient one and is alluded to
in the Rgveda, according to Yaska’*. Ilgveda X. 85 is a very in-
teresting hymn as regards marriage ; verses from it arc used even to
this day in the marriage ritual.’^’ It shows that in the remote Vedic

age the marriage rite resembled in essence the Brahma form as des-
cribed in the Dharmasutras and Mann.’" But the purchase of a
bride (i. e. what is called Asura marriage in later literature ) was not
unknown in the Vedic age. A passage of the Maitrayaniya.samhita
(I. 10. II ) is referred to in the Vasisthadharmasiitra”* in this con-
nection, viz, ‘
she who being purchased by the husband The
Gandharva form is hinted at in the words’ when a bride is fine- ’ ‘

looking and well adorned, she seeks by herself her friend among
men ’, The importance of the ttiinisii son was felt even in the remote
Vedic ages. Another ( person ) born of another’s loins, though
‘

very pleasing, should not be taken, should not be even thought of

(as to be taken in adoption’ )’. The Taittiriya-saiiihiia (VI. 3. 10. 5)
’

propounds the well-known theory of the three debts*'. The story

^ ardfimi' w;wfm?nTFTr«f>Tl 5i’JT(^, 1 w.

25 Vide Rgveda III. 31. 1. and Nirukta III. 4.
26 e, g. the verse ^ X. 8.5. 36 ). Vide qr.

11. 4. 14.

2 '^
nr. n. ^ n. 2*
'Ait. n. 27.

28 I* 36-37; note jjpr.

II. 6. 13. 11 where the word ‘purchase’

is tried to bo explained away and also VI. 1. 15.

n![r nfirwli; nt i^ ^ i%( i

27 - 12.

3® n ?1 nnw 4 \
3* 3-

31 ’STwnpfr
n >r^^»r wni irnnr

I
 11

HUtory cf DharmcMti^

of Sunahiepa the Aitareya-brahmana ( VII. 3 ) suggests that a

son could b^lidoptcd even wlicn there was an mirasa son. The
Taittiriya-sjainihta (VII. 1.8. i) tells the story of Atri who gave an
in adoption to Aurva. The Ksetraja son of the Dharma-
often relerred to in the earliest Vedic literature. ‘
What

B
T ) invites you ( Asvins ) in his liouse to a bed as a widow
other-in-law or a young damsel her lover’^‘\ The Taittiri-
a makes it clear that a lather could distribute his wealth
is sons during his own life time '
Mann divided his property
among his sons’ Another passage of the same SaiUhita seems
10 suggest that ilie eldest son took the whole of the father’s \\ calth
‘
therefore people establish tlieir eldest son with wealth ’-U liven in
the Vedic ages the son excluded the daughter from inheritance
son born of the body does not give the paternal wealth to ( his )
sister’»u A passage of the 'raittiriya-saiiihita is relied upon by ancient

and modern writers on dlun nuhulstra for the exclusion of women in

general from inheritance ‘
therefore women being destitute of
strength take no portion and speak more weakly than even a low
person’^^'. The Kgveda eulogises the stage of studenthood and the
Saiapathabrahmana speaks of the duties of the Brahmacarin such as not
partaking of wdne and oil’ering every evening a sainidh to lire’' The .

^ R I
40. 2.

33 1%. 19 4. This passage is relied upon by

14. 11 and 11. 2. 2.

34 I %. Ik 5. 2. 7. This passage U
referred to by IT* fi* 14. 12 and II. 2, 5.

35 ‘q HI* HI. 5 for explana-

5TFT5 r\]7^]

tions of this verse.

qiqfrq^ ^^Frirtt ^

Here thd portion spoken of is really that of the soma beverage. Vide
Ik 2. 47 for reliance on this passage and also

on 3;yyq-^ q, II. 6. 14. 1 and (para. 21 and 336). Vide

( J
also I^* 4. 2. 13 for a similar passage.

( XI. 5. 4* 18 ) reads ‘
j ^ Compare II- 177-

Vide ^I* 3* 3. 1 for samidh.

 12

B. Bources Jbhcerwa 1

Taitiiriya-sariihita (VI. 2. 8. s) relates^* how Indra consigiaed Yatii to

wolves (or dogs) and how Prajapati prescribed a PrayascitliS^for him.
The Satapathabrahmana speaks of the king and the learned Bt ahmana
as the upholder of the sacred ordinances.*’ The Taittiriyas.^thhita

says ‘
therefore the Siidra is not fit for sacrifice*'’. ’
The
Brahmapa tells us that when a king or other worthy guest cots^

people offer a bull or a cow*'. The Saiapatha-brahniana speaks

\’edir study as yai^ia and the Taittiriya-aranyaka*- enumerates th
h\ c yajiias, which are a prominent feature of the Manusmrti. Tlu
Rgveda eulogises the gifts of a cow, horses, gold and clothes**.

.\nother passage of the Rgveda ** ( thou "art like a prapa in a desert )

isrelied upon by Sahara on Jaimini (I. 3. 2) and by Visvarupa on
Yajiiavalkya as ordaining the maintenance of prapits ( places where
water is distributed to travellers ). 'I’he Rgveda condemns the selfish

man who only caters for himself*'.

The foregoing briet discussion will make it clear that the later

rules contained in the Jluininisulriis and other works on dbarnta-

'.iistra had their roots deep dow n in the most ancient Vcdic tradition

and that the authors of the ilhtinintsiilnis were quite justified in look-
ing up to the V'edas as a source of But, as said above,
i i r. \'edas do not profess to be formal treatises on ilhnniin •, they
contain only disconnected statements on the various aspects of
ili'iU Dici we have to turn to the smrtis for a formal and connected
li vatment of the topics of the dbiiniinsiislni.

I. (
•’« HJT Xl. 45 ) quotes this.
Vide 1^. 7. 28 and ftiuj-gR^lsr;. 8.1.4, 13.4. 17 and 11.5.3.

KlriTtt V. 4. 4. 5.
3'J
1^ I

I h. VII. l.l. 6.

^•5% ^1^1?! I m. *15. Compare 4- 8-

^ *• i®-
*B?tfrt

w^R?r: I an.

niV I| au^; II
X. 107. 2.

«r«iw 2'n arii ^3

^' *11^' i
x. 4. 1.
 13

History of Dharmaitttra

When Dharmasastra works were first composed

ofSunabfepi .
when fformal
. .
, , ,

son could ’ ‘Important question is to find out treatises

Taittiriya began to be composed. It is not possible to give a definite

only sor'^'-
question. The Nirukta (III. 4-5) shows that long
Sutras Yiiska heated controversies had raged on various questions of
5a<^ieritance, such as the exclusion of daughters by sons and the rights
(
doe/>f the appointed dauglitcr (putrika). It is very likely that these dis-
yjjjjXussions had found their way in formal works and were not merely
confined to the meetings of the learned. The manner in which
'
Yaska writes suggests tliat he is referring to works in which certain
Vedic verses had been cited in support of particular doctrines about
inheritance''’. It is further a remarkable thing that in connection
w’ith the topic of inheritance Yaska quotes a t ense, calls it a sloka

and distinguishes it from a rk. This makes it probable that works

dealing with topics of ilhai nia existed eitlier composed in the sloka
metre or containing slokas. Scholars like Blihler would say that the
verses were part of tlie floating mass of nuicinonic verses, the exist-

ence of which he postulates without very convincing or cogent

arguments in his Introduction to the
Manusiiirti ( .S. B. R. vol. 25
Intro.xc). If works dealing with topics of lihiinna existed before Yelska,
a high antiquity will have to be predicated for them. The high
antiquity of works on dbannahislya follows from other weighty con-
siderations. It will be .seen later on that the extant dharmasnlras of

Gautama, Baudhayana and Apastamba certainly belong to the period

between 600 to 300 B. C. Gautania'“ speaks of dlutniiasastras and
the word dharmakistra occurs in Baudhayana also (IV. 5.^). Baudha-
yana speaks of a dharmapathaka (I. i. 9.). Besides Gautama quotes in
numerous places the views of others in the words ‘
ityeke ’
( e. g. II.
15, II. 58, III. I, IV. 21, VII. 23 ). He refers to Manu^’ in one
place and to ‘
Acaryas ’ in several places ( III. 36, IV. i8 and 23 ).

46 33^ I
Vide 8. B. E. Vol.

25, LXI (footnote) for BUbler's view refuting Roth’s opinion that the whole
discussion in the Rirukta is an interpolation.

joTTBif ^ wfi;
KW ^
I Kg: ||

48 in. K.
% ‘ >.

words Ki. 9. 88. 47 appear to refer to students of

TKVW.
49 ng: 1 in. n. 7.
 14

S. When Dharmaiastra works were first composet

Baudhiiyana mentions by name several writers on dliarma, for him.

jahgliani, Katya, Kasyapa, Gautama, Maudgalya and Harita. -^hmana
taniba also cites the views of numerous sages such as those o^^mhita
Kanva, Kautsa, Harita and others. There is a Vartika which sp.fjreya
of Dharmasatra^^’. Jaimini speaks of the duties of a Jsudra as 1
'
es,
down shows tliat in his days dhainh.oi
in the dlK^rmasastra>^ Patahjali
siitras existed and that their authority was very high, being next t(Xe

the coinmandmeius of God'^. He quotes verses and dogmas iiku%

'
have their counterparts in the dharinasutras. The foregoing dis
CLission establishes tliat works on the (ll.utniuisdstra existed prior to
Yaska or at least prior tothe period 600-300 B. C. and in the 2iul
century B. C. they had attained a position of supreme authority in
regulating the conduct of men.

In this book the whole of the extant literature on dbaniut will

be dealt with as follows : -
First come the some of
dharinasutras,
which like those of Apastatnba, 1 liranyaliesin and Baudhayana form
part of a larger Sutra collection, while there are others like tliose of
Gautama and Yasistha which do not form part of a larger collec-
tion some dhaniiasnlnis like that of Visnu
; are, in their extant form,
comparatisely later in date than other siilni works; some
works like those of Sank ha-Likhita and Paithinasi are known onl\
Irom quotations. Then early metrical smrtis like those of Mann and
Yajhavalkya will be taken up for discussion ;
then later versified
smrtis like that of Narada ;
there are many smrti works like those
of Brhaspati and Katyayana that are know n only from quotations.
I’he two Mahabharata and the Ramayana, and the Puranas
epics, the
also have played a great part in the development of the Dharma-
sastra. The commentaries on the smrtis, such as those of Visvariipa,
Medhatithi, Vijhanesvara, Apararka, Haradatta will be next passed

^ rfsn I
P- 242

iTl. VI.7. 6.
I

52 anfruTcrw i h?!-
vol. I, p. 115 and vol. II, p. 365. quotes

SllUyirli: ( P- 14 ) for which vide ariT. Tf.

I- 7. 20. 3 .yjyi'sq

says it
’

t 1 p. 25 ).

M. D. 2.
 15

10 Higlory cf Dharmakuint

in review then the digests on dharma such as the works ol

Hematiri, Todararaalla, Nilakantha and others.
•

I.t'ls very difficult to settle the chronology of the works on

JlWmasastra, particularly of the earlier ones. The present writer
Jws Max Muller ( H. A. S. L. p. 68 )
not subscribe to the view of
iind others works in continuous Anustubh metre followed
that
sutra works' 3. Our knowledge of the works of that period is so
meagre that such a generalisation is most unjustifiable. Some works
in the continuous sloka metre like the Manusmrti are certainly
older than the Visnudharmasutra and probably as old as, if not
older than, the Vasisthadharmasutra. One of the earliest extant
dharmasutras, that of Baudhayana, contains long passages in the
sloka metre, many of which are quotations and even Apastamba has
a considerable number of verses in tiie sloka metre. This renders it

highly probable that works in the sloka metre existed before them.
Besides a large literature on liharwa existed in the days of Apastamba
and Baudhayana which has not come down to us. In the absence
of that literature it is futile to dogmatise on such a point.

4. The Dharmasutras.
It seems tliai originally many, though not all, of the Llhaynm-
Sutras formed part of the Kalpasiitras and were studied in distinct
siitracaranas. Some of the exiaiu dharmasutras here and there
show in unmistakable terms that they presuppose the Grhyasutra of
the carana to which they belong. Compare Ap. Dh. S. I. i. 4. 16
with Ap. Gr. S. I. 12 and 20 xvith
II, 5 ; and Baud. Dh. S. II. 8.

Baud. Gr. S. II. II. 42 (and other siitras)'*. The Dharmasutras

belonging to all siitracaranas have not come down to us. There
is no dharmasutra completing the Asvalayana Srauta and Grhya

sutras ; no Manavadharmasutra has yet come to light, though the

53 VideS. B. E vol. li, p. iX, but see GoldstUcker’s Panini ( pp. 59, 60, 78
against Max Muller and Prof. D. R. Bhandarkar's Carmichael lectures for
1918. pp. 105-107.

I, 1 . 4 . 16; I
1. 12 and
II-
I 3iiT.
7 . sr.

II. 8 20
. ) refers to II. 11. 42;

^1 ( ^I. «I.
% I- I® ) refers to ij, II. 5. 66 and other placet where

it one of the trett.

 16

4. Th$ DharmaaHUrM

M^nava §rauta and Grhya surras are extant ; in the same ws

the Sahkhayana Srauta and Grhya sutms, but no ^arikhayan*^^j^*j^"
^
sutra. It is only in the case of the Apastamba, Hiranyalt.. ,

Baudhayana Sutracaranas that wc have a complete kalpa

^
with its three components of §rauta, Grihya and Dharmasutras

Tantravartika of Kumarila contains very interesting obser\’ations

this point. It tells us that Gautama ( dharmasutra ) and Gobhily
( grhyasutra ) were studied by the Chaudogas ( Samavedins I
Vasistha ( dharmasiitra ) by the Rgvedins, the dharmasutra of
.^artkha-Likhita by the followers of Vajasaneya-saihhita and the
suiras of Apastamba and Baudhayana by the followers of the Tait-
tiriya §akha 55 The Tantravfirtika ( p. 179 ) establishes it asa.std-’
.

( on Jaimini I. 3. ii) that all the ff/wrma and grhya sutras

are authoritative for all Aryan people. From this it appears that
although originally all sutracaranas might not have possessed
dharmasutras composed by the founder of the caraija or ascribed
to him, 5’et gradually certain dharmasutras were specially taken over
or appropriated by certain raraijas. As the dharwasntras were
mostly concerned with rules about the conduct of men as members
of the Aryan community and did not deal with ritual of any kind,
all dharmasntras gradually became authoritative in all schools.

The dharmasntras were closely connected with the grhyasntras

in subjects and topics. Most of the Grhyasutras treat of the sacred
domestic fire, the divisions of Grhya sacrifices, the regular morning
and evening oblations, s;icrificcs on new and full moon, sacrifices

of cooked food, annual sacrifices, marriage, piuhsavana, jatakarma,

upanayana and other sasthktiras, rules for students and snAtakas and
holidays, sraddha offerings, madhuparka. In most cases the Grihya-
sutras confine themselves principally to the various events of
dome.stic life ;
they rarely give rules about the conduct of men, their
rights, duties and responsibilities. The dharmasutras also contain
rules on some of the above topics such as marriage and the sarnskaras.
 17

History of DharmaiJMra

/rahmacarya anJ snatakas and holidays, on srfiddha and

therefore not to be wondered at tliat in the
in
the topics of the duties of the Brahmacarin
the house-holder,of dtitbis and of iraddha are meagrely
ascompared with the Apastamba-dharmasutra. The dharma-
very rarely describe the ritual of domestic life they merely ;

^^)uch upon it ;
their scope is wider and more ambitious ;
their
Principal purpose is to dilate upon the rules of conduct, law and
custom. Some sutras are common to both the Apastamba-grhya
and the dhanna Sometimes the grhyasuira appears to refer
siitra*^’.

to the dharmasLitra*". There are certain points which distinguish

the dharmasutras ( the more ancient of them at least ) from smrtis.

( a ) Many dharmasutras are cither parts of the Kalpa belonging to

each sutracarana or are intimately connected with the grhyasiilras.
( b ) The dharmasutras sometimes betray some partiality in
their \"edic quotations for the texts of that Veda to which they
belong or in the caranas of which they are studied, (c) The
authors of the (older ) dharmasutras do not claim to be inspired seers
ov superhuman beings''\ while the other smritis such as those of
Manu and Yajnavalkya are ascribed to Gods like Brahma. ( d ) The
illuiriihisulnis arc in prose or in mixed prose and verse ;
the other
smnis are in \erse. (e ) 'fhe language of the dhdnmtsnfnts is generally
more archaic than that of the other smrtis. ( f) The diktniiasntras
do noi proceed upon any orderly arrangement of topics, while the
other smritis ( even the oldest of them, viz. Maiuismriti ) arrange
their contents and treat of the subjects under three principal heads
viz. (luinf, vyavahdva and prayakitta. { g) Most of the dbrirmtsutras
are older than most of the other smrtis.

5. The Dharmasutra of Gautama.

This has been printed several times ( there is Dr. Stcnzler’s
edition ol 1876. the Calcutta edition of 1876, the Anandasrama
56 0 . P. 17. 15. 16
5[oif I gTiq.n.
and I. 1. 2. 38.

57 e. K. the 3^17. ‘
H((% VIII. 21. 1. ).
^55i:
’
(

This has in view II. 7. 16. 4-22.

^
58 Compare ,fr. Vf.
I- 3-4 and 3^.7. I. 2. 5. 4.

3TIT. ” «• 13.
 18

Sources of Law in the Bhartiya Knowledge System

Ashutosh Dayal Mathur

(Retd. Associate Prof. and Head of the Department of Sanskrit, St. Stephen’s College, Delhi)

At the very beginning it needs to be noted that what we call law now is technically called

Vyavahara in the Indian knowledge system. The expression vyavahara signifies law, litigation

and judicial procedure. Vyavahara is a part of the larger scheme of Dharma which consists of a

comprehensive system of injunctions and prohibitions to regulate people's conduct in their many

interactions in different social institutions.

The institution of Dharma in the Indian knowledge system has evolved over a period of nearly

three millennia, taking elements from various schools of thought in Indian philosophy. Its early

beginnings are in the ritual tradition of Mimamsa school according to which the performance of

various Vedic yagyas was Dharma. And the entire structure and procedure of yagyas could be

known only from the Vedas. What result (phala) can be obtained from which ritual, can be

known only from the Vedas and from no other source. One common result (phala) that can be

obtained from all Vedic rituals is swarga or heaven. Now what is swarga, does it exist or not

what happens in Swarga - this cannot be known from our normal experiences and these are

matters which are settled only by the Veda. Hence in matters of Dharma only Vedas are the valid

source of information.

In the Smriti - Purana tradition, the idea of dharma has been combined and amalgamated with

man's social roles and responsibilities. The Smriti Purana tradition accepts Vedic and post Vedic

rituals as essential parts of dharma but also expands the idea of Dharma to include various

social, moral, economic, political, legal and other duties of individuals and social groups as
 19

members of the larger community of human beings. It claims that one can obtain various ‘good

results’ (phala) including swarga by performing one's social Dharma as well. In fact the Smriti

Purana tradition goes beyond swarga and claims that one can obtain even moksha that is

liberation from the cycle of life and death, the highest result that a human being can achieve from

life and in life, all by performing one's social Dharma.

So by the time Dharma Shastra got established as a separate Shastra, Dharma has already been

expanded to go beyond mere religious rituals to include all possible rules of conduct for the good

of the community and of the individual. This is how I just defined Dharma - as a comprehensive

system of prohibitions and prescriptions to regulate human conduct in all possible interfaces -

social, economic, political, legal and religious.

Bharatiya dharma shastra is fully conscious of this expansion in the field of Dharma and notes

how from mere religious ritual, Dharma has begun to cover a very large canvas in the life of the

individual and the community. It is fully aware that human life within this world cannot be

governed by the supposedly superhuman and the supernatural. Life has its own problems and

dynamics which are rooted in the world, in specific social, political and economic situations and

therefore rules governing life in the society have to take cognizance of those situations. They

must be rooted in social life and be governed by it.

Therefore in matters of Dharma one must clearly distinguish between matters which are worldly,

arise from this world and lead to consequences in this very world from matters which are

otherworldly and have consequences in the other world.

Within the area of Dharma, there are different kinds of rules which are backed by personal,

social and divine sanctions. Personal sanctions are in the nature of realization of guilt and various
 20

rituals for atonement. Social sanctions are enforced by families, village communities, caste

groups and traders’ guilds. Divine sanctions are in the nature of punishments awarded in this

world in the form of various kinds of sufferings or in hell under a divine arrangement.

But several of these rules of dharma are enforceable by agencies of the state. The rules of

Dharma which receive state sanction and support constitute the rules of Vyavahara or law. These

form the core of bharatiya jurisprudence.

In the Indian knowledge tradition, rules of social conduct (Dharma) are also primarily attributed

to divine sources or the Vedas. However, even while dharmashastra stresses the importance of

divine sources, Medhatithi , (an 8th century commentator on the Manu Smriti, while

distinguishing between Dharma and Vyavahara declares that rules of Vyavahara i.e. law, are not

entirely based on the Vedas and stem from our common experiences. Hence, Vyavahara partakes

of the nature of Dharma but is different from it.

It is important to see that dharmashastra gives four sources of Dharma itself, not just Vyavahara.

Manu Smriti says - ‘Veda or Shruti, Smriti, Sadachara and Atmanah Priyam or atma tushti

(whatever is pleasing to oneself or gives satisfaction to oneself) - these four are the sources of

Dharma’.

We will first look at the four sources of Dharma (including Vyavahara) in the Dharma Shastra

tradition, namely shruti, smriti, achaar and atma tushti. These are given in the order of

precedence. Shruti is believed to enjoy highest authority, Smriti comes next, then sadachara and

atma tushti is the least authoritative in this scheme. However, this is too simplistic an

understanding as many complex issues are involved in determining the role of each of these in

the field of Dharma and Vyavahara.

 21

We will examine each of these in detail now.

Shruti -

The expression Shruti literally means ‘that which is heard’ i.e knowledge received through

listening. In the Indian knowledge tradition this principally refers to the four Samhitas i.e.

collections of mantras used in various yajnas and other rituals.

. These are

1. Rig Veda,

2. Yajur Veda

3. Sama Veda and

4. Atharva Veda.

The Rig Veda has more than ten thousand mantras or verses in one thousand twenty eight

Suktas. The word Sukta means well spoken or well crafted but here it may be taken to mean a

poem.

Rig-vaidika poems are mostly prayers to Vaidika deities like Agni, Indra, Varuna, Vishnu, Soma,

Usha and many others. Many Suktas deal with creation of the world, life and death and other

philosophical issues. Many Suktas are about various aspects of family and social relations,

kingship, polity economy and also magic charms. The Rigveda presents the earliest recorded

thoughts and practices about various aspects of life and society in India.

The Yajurveda consists of prose mantras to be deployed in different rituals.

The Sama Veda is very unique and consists of mantras set to music as songs to be sung in rituals.

It is the source of the rich tradition of classical and folk music in India.
 22

The Atharva Veda largely has mantras for wizardry, magic and sorcery, but it also provides

information about several medicinal plants and cures for many diseases. At the same time it has

several Suktas containing advanced philosophical concepts. Many Suktas contain wise words on

society, polity and economy.

The Vedas are believed to be words of enlightened sages who directly perceived or realized the

truth in their hearts. They are called Rishis. The word Rishi is derived from the root rish

meaning to see or perceive and refers to Seers i.e. a direct perceivers. The Rishis are believed to

have directly and internally ‘perceived’ Dharma. Then they orally transmitted that knowledge to

their disciples. The words of the Rishis became Shruti at the end of the disciples who ‘heard’ the

words of wisdom from their teachers. Since the ancient seers had direct realization of Dharma,

their knowledge is believed to be self-proven and perfect, requiring no corroboration.

When the disciples of the Rishis (seers) further transmitted that knowledge to their disciples,

they did it from their memory of their teachers’ sermons i.e. on the basis of what they

remembered hearing from their teachers. Thus, the second level instruction by the disciples of

the original seers appeared as the Smriti texts. Human memory can be erroneous and for that

reason, smritis have the possibility of being distorted.

Shruti, being directly realized knowledge, is believed to enjoy higher validity than smritis whose

words are valid only if in conformity with Shruti. In the Bhartiya knowledge system, Shruti or

Veda enjoys indisputable validity also because some schools of Bharatiya darshana like Nyaya -

Vaisheshika and Vedanta and the Smriti - Purana tradition consider them to be words of the

omniscient Ishwara or God. The Mimamsa school considers Veda to be Apaurusheya i.e. not

authored by any one and therefore beyond all possible errors. To lend eternal validity to Vedas,
 23

the Mimasakas argue that Vedas have not been authored even by an omniscient God because to

say so would imply that the Vedas did not exist before God created them. This would further

imply that they did not have any validity in that period. Therefore, according to the Mimasakas,

the Vedas have to be admitted to be eternal.

Both the Mimamsakas and the Vedantis argue vociferously for undisputed validity of the Vedas

because their entire theses are built on the words of the Vedas. Rituals prescribed by the

Mimamsakas and the theory of the Atma propounded as by the Vedantis derive their validity

from the Vedas.

On the other hand, many other schools of thought like Nyaya - Vaisheshika and Samkhya prove

their claims on the basis of arguments. They do not rely on the words of the Vedas as much as

the Mimamsakas or the Vedantis do. Therefore, they do not lay so much emphasis on the

authority of the Vedas, though they do recognise Vedas as the highest authorities. Nyaya, as we

shall see, opined that even the knowledge received from the Vedas is subject to further

verification by reason.

The range of Shruti or Veda is not confined to the four Samhitas. Each samhita also has its three

layered supplementary literature consisting of -

i. Brahmanas

ii. Aranyakas and

iii. Upanishads.

The Brahmanas are texts containing details of Vaidika yajnas and other rituals and form the core

of the sacrificial tradition of the Mimamsa school.

 24

The Aranyakas are philosophical interpretations of Vedic rituals and seek to turn them into

exercises for spiritual rejuvenation.

The Upanishads propound the core Indian philosophical concepts of Atma, rebirth and karma

theory and form the basis of all the schools of Indian philosophy.

It may be noted that in the Bhartiya tradition, the word Shruti or Veda in singular signifies all the

four Samhitas along with their supplementary literature. When something is claimed to have

been written in the Shruti, it could be found in any of the Samhitas, Brahmanas, Aranyakas or

Upanishads.

Brahmana texts also contain early speculations on rituals, societal norms and law, grammar,

etymology, ganita and jyotisha and several other subject areas. These were later developed into

the six vedangas i.e. auxiliary sciences for the study of the Vedas and practice of Vaidika rituals.

Shruti or Veda is said to be the source of all other branches of knowledge as well viz. poetry,

dance, drama and music etc.

In the domain of Dharma and Vyavahara too, the Veda is said to be the original source because it

is the earliest available literature in which there are references to several dharmic and legal

issues. However, it needs to be noted that the Vedas only make oblique references to such issues

and are not prescriptive like the later smritis.

 25

The question of overriding authority of Vedas (and smritis) presents a very difficult dilemma in

the domain of Dharma which is very extensive as Dharma seeks to prescribe rules and

regulations for all aspects of human life. This not only covers all human interactions and

relations in the social, economic and political spheres but also religious beliefs and ritual

practices. What further complicates the matter is that Dharma has also ritualized social,

economic and political activities and sought to validate their prescriptions or prohibitions

regarding these activities by invoking the authority of the Vedas or the Smritis based on the

Vedas.

This makes all social, political, economic, administrative and legal rules and regulations beyond

critical review. This makes them absolute and unchangeable and makes the entire social system

absolutely rigid. However, the evolution of Dharma Shastra over three millennia shows how

ancient and medieval scholars of Dharma Shastra grappled with the problem of textual authority

and the need for change.

One interesting tool of interpretation developed by the Mimamsa school and adopted by Dharma

Shastra is to distinguish between rules with ‘seen (drishta) objectives’ (artha) and ‘unseen’

(adrishta) objectives (artha). The former are the rules whose results cannot be seen i.e. known

through our normal means of knowledge. For instance, rules of ritual bath or rules for making

offerings to deities or ancestors. Their validity cannot be determined on the basis of our general

experience of the world. They have to be accepted to be true because they are prescribed by

some authoritative text.

On the other hand rules of marriage and partition or trade and commerce, evidence or court

procedures are made with some specific social, economic, political or legal objectives.
 26

Hence, the validity of these rules has to be determined on the basis of their efficacy in fulfilling

those objectives. These rules cannot be assigned unseen objectives and pushed beyond critical

review.

Thus, within the domain of Dharma, scope is created for bringing flexibility to the system to

enable amendment and even notional abrogation of earlier rules.

The ‘abrogation’ is only notional because texts from the past cannot be purged of rules.

However, authors of subsequent smritis have laid down alternative rules thereby providing

alternatives to earlier rules. Interestingly all smritis claim authority by claiming that they are

based on the Shruti.

Authors of later digests and commentaries benefit from these variations as they get a large pool

of rules to choose from and create their own alternative systems - all deriving authority from

‘sacred’ texts.

This has allowed the Dharma Shastra to negotiate its way out of the dilemma of authority of texts

like the Vedas (and the Smritis) and yet make enough room for heralding change where

necessary.

Therefore, in conclusion, it needs to be noted that despite its insistence on the authority of the

texts, the Bhartiya knowledge tradition has kept Dharma very flexible so that it can adapt itself to

emerging situations and remain relevant in all times (sanatana). It's all- timeness lies not in

mindless adherence to the letter of the law but in its unique ability to invest past texts with new

meanings and make them look always contemporary and relevant.

In Dharma Shastra, including Vyavahara, Shruti plays only a notional role. It is always the

Smritis which are cited as authorities. However, as already indicated, there are multiple smritis
 27

which are often at variance with one another. So to prove the authority of one smriti over the

other, the test of adherence to Shruti was developed. In other words, a statement from a Smriti

was considered to be more authoritative than the other only if it could be shown to be based on

some Vedic statement.

Where no Vedic source could be shown for a Smriti rule, the authority of the lost Shruti was

invoked. This needs to be elaborated.

It is well known that in the long history of India’s textual tradition, several Vedic recensions

have been lost. So it is presumed that a Smriti rule which could not be directly trace to a Shruti,

is nevertheless valid because it might have emerged from a lost Shruti. This shows how Shruti is

seen as the force behind dharmshastra tradition.

The idea of the overriding authority of Shruti over Smriti and custom is somewhat akin to the

contemporary practice in constitutional law where the validity of all legislation and executive

orders and even social practices is accepted or denied on the basis of it's conformity or otherwise

to the letter and spirit of the constitution.

It needs to be appreciated that every normative system needs a strong and inviolable basis to

stand upon. In the domain of Dharma and vyavahara, it is the Shruti which provides that basis to

the social and legal superstructure, however tentative or fragile the relation between the two

might be.

Dharmshastra had to struggle harder when it could not find any Shruti or Smriti rule as authority

for prescribing or proscribing any conduct. In such a situation convention or custom was relied

upon as the source of Dharma.

 28

However, authenticity or authority of custom was also called in question repeatedly. In this

situation dharmashastra fell back upon the written text and held that only customs which accord

with Shruti (or smriti) were valid. At the same time Dharma Shastra does not shy away from

renegotiating the meaning of Shruti or Smriti texts to make them accordingly with emerging

customs.

Social dynamics makes Dharma Shastra adopt a dynamic approach and assign higher authority to

Shruti or Smriti or custom as per the needs of desh (place) and kala (time).

Smriti

The word Smriti literally means memory. However, in the Bhartiya knowledge system it refers to

all texts written by ancient sages on the basis of their memory of what they had heard from Vedic

seers. It is believed that Vedic sages perceived truths directly and spoke them out in the form of

the Vedas. Their disciples heard their sermons and on the basis of the memory of what they had

heard, they (the disciples) composed the texts called the Smritis.

Although texts belonging to various disciplines are given the generic name Smriti, this

expression is largely reserved for texts dealing with Dharma and therefore Smritis are also called

dharmashastra. As Dharma Shastra, the Smritis define roles and lay down the duties and

privileges of individuals and social groups in their different mutual interactions - social, political,

economic and religious. It covers human relations with all other creatures and entities in the

universe as well. A significant part of the Smritis deals with religious rituals as well.

Dharma Shastra is aware of the many possibilities of transgression of Dharma by individuals. It

has sought to curb such transgression by two modes - prayashchitta and Vyavahara.

The former consists of rites for atonement and purification. Vyavahara on the other hand deals

with state administered law. The rules which regulate the exercise of this power by the state are
 29

covered under Vyavahara. The Vyavahara part of Smritis lays down extensive substantive laws,

laws of procedure, laws of evidence, rules of pleadings and interpretation of smriti rules. This

forms the subject matter of law as understood today.

In the field of law, a large range of texts are covered under smritis. The earliest among them are

the dharmasutras. Works like the Apastambiya Dharma sutra, Gautama Dharma sutra, Vishnu

Dharma sutra etc. contain material on law and legal procedures.

These are followed by metrical Smritis attributed to sages like Manu, Yajnavalkya, Narada,

Katyayana, Brihaspati and many others. The metrical smritis, almost two hundred in number,

lay emphasis on different aspects of Dharma - from social conduct, religious rituals like various

vratas, fasts, festivals and pilgrimages. They form the basis of the social, religious, philosophical

and the legal system that has existed in India for nearly two thousand years. Vyavahara as law

forms a very significant part of the Smritis. Many smritis discuss civil and criminal laws, laws of

procedure and evidence in detail. They also discuss principles of jurisprudence and provide the

philosophical background of the legal system.

Among the metrical Smritis, the one ascribed to Manu is believed to be of highest authority and

is frequently cited by later authors. It's importance lies in the fact that it is the earliest available

text in India which covers the entire field of Dharma in its various aspects. In twelve chapters it

seeks to present a comprehensive scheme of life for individuals and the society leading to the

acquisition of the four aims of life namely Dharma, Artha, Kama and Moksha. Chapter VIII of

this work is the earliest available exposition of various branches of law covering the traditional

eighteen titles of dispute, laws of evidence and procedure.

 30

It must be acknowledged that many of its prescriptions (and of later smritis as well) are out of

sync with the current democratic understanding of equality and justice. Yet, there is no denying

the fact that the principles, social institutions, beliefs and practices found in this text and in texts

based on the Manu Smriti, whether in sync with or out of sync with the current understanding,

have influenced and shaped life in India for over two millennia. Going by the spirit of

dharamshastra, it can be said people in different times and places, must choose what is conducive

for them and omit what is not. As indicated above, despite its strong commitment to a long

textual tradition and social conventions, the Bharatiya Dharma Shastra tradition provides enough

scope for constant correction and growth.

The Yajnavalkya Smriti which came after the Manu Smriti, for the first time clearly segregates

Vyavahara i.e. law from other branches of Dharma. It has arranged all rules pertaining to law and

legal procedures in a separate (adhyaya) section called Vyavahara. Yajnavalkya differs

significantly from Manu in its treatment of inheritance and partition laws.

Three smritis ascribed to Narada, Katyayana and Brihaspati are of particular importance in the

field of legal studies. They specialize in procedural laws, constitution of courts, drafting and

pleadings, rules of evidence, review appeal etc.

A very large number of Smritis composed over a long period and probably in different parts of

the country suggests that people's practices in different parts and at different times were indeed

different. This also suggests that new Smritis were composed to grant ex post facto validity to

peoples' practices and to record current practices for posterity. This is a very interesting

phenomena which shows how people's practices have impacted the so-called sacred texts which

have constantly attempted to update themselves to match with current practices. This continuous

interaction between the shastric and the popular is a unique feature of the Bharatiya knowledge
 31

system and can be observed in the growth of almost all disciplines in India, including Dharma

and Vyavahara.

All the Smritis are supposed to have equal authority. Interestingly, Smriti texts often differ with

one another on several issues. Contradictory rules are often reconciled by taking them to be

optional and it is left to the wisdom of the concerned person to choose any of them according to

his peculiar requirements. Another way of reconciling apparent contradictions is to show that

there is no real contradiction and that different rules applied to different situations. Thus,

sufficient scope is created for the operation and application of different rules.

The third layer of texts passing under the name Smriti are commentaries on earlier Smriti texts.

These are called tikas or bhashyas. There is a huge commentarial tradition on various Dharma

sutras and metrical Smritis. Among them some more important ones are Asahaya’s bhashya on

the Narada smriti, Medhatithi’s bhashya on the Manu smriti and Vijnaneshwara’s bhashya on the

Yanjavalkya Smriti.

The fourth type of texts under smriti, are digests called Nibandhas. Some of these nibandhas are

mere topic wise compilations of verses from different Smritis and are therefore in the nature of

anthologies. On the other hand, some nibandhas seek to present a coherent system of laws for

being enforced by the patron kings of the authors.

Often commentators and authors of digests have to reconcile contradictions among Smritis or

choose from the large pool of Smritis. One great merit of many commentaries and digests is that

they discuss in detail the reasons for choosing one rule over the other. This gives readers a good

insight into the making of a legal text in different times and at different places. It helps them to

understand how the law has evolved and changed with time.
 32

Commentaries and Nibandhas also record vociferous debates between proponents of contrary

views on legal (and other) matters. These offer some insight into how laws were operationalised

in actual dispute situations in courts of law. One can see here how debate and argument was used

as a significant tool to interpret non - legal and legal provisions.

One such very significant debate in Vijnaneshwara’s commentary on the Yajnavalkya Smriti

can be cited as an illustration.

In some Smritis the widow of a deceased male is not given any share in her husband’s property.

On the other hand Yajnavalkya makes the widow an equal inheritor with the deceased’s sons and

places her at the head of the list of inheritors. The issue gets more complicated when it comes to

the rights of a sonless widow. Many smritis upheld the claims of the deceased’s father or mother

or brothers to inherit his property to the exclusion of the widow and the daughter. Vijnaneshwara

had to fight an aggressive battle with the opposing side which gave several arguments to support

its claim but Vijnaneshwara demolished them all to finally uphold the sonless widow’s right to

her husband’s property.

It is very pertinent to note that in the Indian knowledge system, even the so called sacred texts

have be tested on the basis of logic and argument. Nyaya Sutras of Gautama declare that

whatever is known through perception and agama i.e. Vedas and other sacred texts should also

be verified by anumana i.e. reason and logic. Dharma Shastra also followed this theory

particularly in matters concerning Vyavahara, as borne out by Medhatithi’s attempts to

distinguish Vyavahara from Dharma. Rules of vyavahara, even while falling within the domain

of Dharma, are distinct from the rules of Dharma because their validity is to be tested on the

basis of rational argument based on our experiences.

 33

However, it must be understood that logic or reason is to be given to arrive at the right

interpretation of a text and not to deride, decry or condemn it. There is a difference in approach

to Shruti and Smriti. A provision from a Smriti text can be rejected as invalid by showing it is

against the Shruti. Shruti itself can be subjected to a critical analysis only to arrive at the right

interpretation but arguments cannot be made to reject it as invalid, per se.

This is somewhat similar to the current practice in law where one can argue for or against a

particular interpretation of a provision, or ultimately show it to be ultra vires of the constitution.

No argument in a court of law can begin with rejecting the very law.

Thus, Vyavahara, even while owing allegiance to the texts, is not fussy or fundamentalist in its

attitude towards the so-called sacred texts. It allowed texts to evolve with time and kept them in

tune with ‘current’ rationality. This is where the role of achara as a source of Dharma and

vyavahara becomes significant.

Sadachara –

The third source of Dharma is ‘ sadachara’ literally meaning good conduct. Dharma Shastra has

had to face complex questions in defining and determining the authenticity of sadachara. Whose

conduct can be taken as model conduct to be adopted as binding for all? What kind of moral and

intellectual qualities should such social role models possess? Can there be law outside the sacred

tradition? Can practices and beliefs of common people determine Dharma or law?

The entire discourse on Achara has evolved while answering these and similar questions.

Therefore, there are several aspects of the understanding of Achara in the Bhartiya knowledge

system -
 34

I. Sadachara as the conduct of morally elevated persons;

II. Sadachara as the conduct of persons well versed in Vedas (and Smritis);

III. Sadachara as the conduct of community elders and leaders;

IV. Sadachara as current dispositions and practices of people in general ;

These different understandings of Sadachara show how our thinkers are negotiating their way out

of difficult issues. One can also clearly see how the sacred and the popular traditions have

affected the making of Dharma in the Bhartiya knowledge system. This also indicates that

Dharma in the Bhartiya tradition is not elitist as it is constantly tempered by beliefs and practices

of common people.

I. Achara and Morality - One input comes from Harita, a frequently qouted thinker in the

Dharma Shastra tradition. He defines ‘good people’ (shishtas) as those who are pure

(brahmanya), devoted to gods and ancestors, soft and sweet, not envious, not rude, do not

hurt others and possess such other moral qualities.

II. Achara and Veda - Manu and other authorities prescribe that such a ‘good person’

should have knowledge of the Veda. The expression ‘Veda’ needs to be understood in the

right perspective. In the Indian knowledge tradition, the word Veda is used for

knowledge itself. It signifies all shastras based on the veda. This covers all secular

disciplines as well, including the vedangas, dharma Shastra, mimansa, nyaya etc.

Thus, a ‘good person’ should be intellectually sound and should have sufficient

knowledge about Dharma and its various aspects to be able to give right advice or to

become a role model for others.

 35

iii. Achara as People's Practices - In a yet another understanding of Achara, it signifies

people's practices. Both in the field of the larger Dharma and Vyavahara, practices of

different regions (desh), communities (jati) families (Kula) and traders’ guilds (shreni)

are accepted as valid.

In certain matters the opinion and advice of family and community elders was considered

to be authentic. Hence, family elders (gram vridhha) and women in the family (Kula stri)

are said to be the source from which Dharma could be known. Sometimes, what is

practiced by a majority of people (maha janah) in a community is considered to be

dharma.

In the long tradition of dharma Shastra, spanning nearly 2500 years, Achara has played a

significant role in defining and determining Dharma. In fact, it has facilitated the growth

of the textual tradition itself which borrows heavily from Achara.

Starting from the Vedas and evolving into Smritis, commentaries and digests, one can see

social conditions constantly changing. Therefore, Dharma Shastra constantly updated

itself to bring itself in tune with the ever-evolving perceptions of people about right and

wrong. Emerging practices were incorporated into later texts to put them on a stronger

footing. This largely explains the creation of a large number of mutually differing texts

within the overall tradition of Dharma.

The relative authority of texts and peoples’ practices has been an important issue in

Dharma shastra. Sometimes people's practices are said to supersede the written text. An

authority like the Yajnavalkya Smriti (II. XXX) goes to the extent of saying that rules
 36

given in the Shastra should not be enforced if they become detestable for the people (

loka vidvishta). Vijnaneshwara, the celebrated commentator of Yajnavalkya says in his

comments on Yajnavalkya II. XX ixt is because of people's opposition that earlier

provisions for ‘niyoga’ were no longer enforced.

Dharma Shastra is equally aware of the possibility of certain practices being very

obnoxious and unacceptable to a civilized society. In this situation such practices could

be rejected as invalid. But rejection of long observed practices requires good reason. This

may be understood by reference to our contemporary debates about certain religious

practices in various religions like untouchability in Hinduism or triple talaq in Islam.

Both these practices have been outlawed in independent India as being ultra vires of the

constitution of India. So today the constitution is the touchstone on which the validity or

otherwise of a rule or a practice can be determined. But in Dharmashastra, one falls back

upon Vedas and Smritis and obnoxious practices are rejected as being against the Vedas

and the Smritis. Vijnaneshvara, in his comments on verse of Yajnavalkya, refers to the

practice of prostitution in certain communities as an obnoxious practice to be curbed by

the state as against the norms of shruti and smriti. Dharma Shastra also authorizes the

state to outlaw such practices through ordinances by the king.

Thus, text and tradition work hand in hand, as complementary to each other and one is

held superior to the other according to the needs and requirements of the situation. This

only shows that Dharma Shastra was very alive and sensitive to the needs of the society

and did not get entangled in any fundamentalist adherence to either text or tradition.
 37

It is a well established norm of vyavahara that decisions should not be based purely on

the basis of written texts. This could very well be understood in terms of a contemporary

rule of interpretation that one should not go by the letter of the law.

The relation between Shastra and local traditions is an important issue in matters of Dharma.

Sometimes it is the Shastra which prevails over practices and sometimes practices prevail over

the Shastra and this kind of a constant tussle is very much visible as we see the growth of

Dharma Shastra over a period of 3000 years.

Peoples’ practices are normally accepted as source of law or Dharma. In fact, it is even

said that practices of good people are ipso facto in consonance with Shruti and smriti. On

the other hand, obnoxious practices were sought to be curbed by declaring them to be

ultra vires of Shruti. A practice which was patently against Shruti or smriti could be

outlawed but one that was not patently against the provisions of the Shruti and Smriti was

acceptable.

Atma Tushti – Self satisfaction

According to the Manu Smriti what is pleasing to oneself (atmanah priyam) is Dharma

and one’s satisfaction (atma tushti) is also a source of Dharma. Yajnavalkya makes a

similar point in different words – Thoughts borne by pure motivation (samyak samkalpa)

can be sources of Dharma. This might be likened to the concept of bona fide acts or acts

done in ‘good faith’ or with good conscience.

By itself, this could make Dharma totally arbitrary and whimsical. Hence, commentators

had to introduce several conditions. One is that one’s wish prevails only where optional

rules are available. One may choose one over the other according to one’s preference.

The second condition is that only the wish of those learned in the vedic lore can
 38

determine Dharma in cases where there is a doubt about Dharma or where no specific

textual authority is available. In such a situation, a team of scholars or even one single

scholar appointed by the king, can decide what is Dharma according to his wisdom. This

is an important provision as it allows special dharmas to be created for unprecedented

situations. In the field of Vyavahara, this gets translated into the law declared by judges

(Pradvivak or Sabhapati) in a court of law (sabha).

 39

Shruti

Ashutosh Dayal Mathur

(Retd. Associate Prof. and Head of the Department of Sanskrit, St. Stephen’s College,
Delhi)

The expression Shruti literally means ‘that which is heard’ i.e knowledge received through

listening. In the Indian knowledge tradition this principally refers to the four Samhitas i.e.

collections of mantras used in various yajnas and other rituals.

These are

1. Rig Veda,

2. Yajur Veda

3. Sama Veda and

4. Atharva Veda.

The Rig Veda has more than ten thousand mantras or verses in one thousand twenty eight

Suktas. The word Sukta means well spoken or well crafted but here it may be taken to mean a

poem.

Rig-vaidika poems are mostly prayers to Vaidika deities like Agni, Indra, Varuna, Vishnu,

Soma, Usha and many others. Many Suktas deal with creation of the world, life and death

and other philosophical issues. Many Suktas are about various aspects of family and social

relations, kingship, polity economy and also magic charms. The Rigveda presents the earliest

recorded thoughts and practices about various aspects of life and society in India.

The Yajurveda consists of prose mantras to be deployed in different rituals.

The Sama Veda is very unique and consists of mantras set to music as songs to be sung in

rituals. It is the source of the rich tradition of classical and folk music in India.
 40

The Atharva Veda largely has mantras for wizardry, magic and sorcery, but it also provides

information about several medicinal plants and cures for many diseases. At the same time it

has several Suktas containing advanced philosophical concepts. Many Suktas contain wise

words on society, polity and economy.

The Vedas are believed to be words of enlightened sages who directly perceived or realized

the truth in their hearts. They are called Rishis. The word Rishi is derived from the root rish

meaning to see or perceive and refers to Seers i.e. a direct perceivers. The Rishis then, orally

transmitted that knowledge to their disciples. The words of the Rishis became Shruti at the

end of the disciples who ‘heard’ the words of wisdom from their teachers.

When these disciples further transmitted that knowledge to their disciples, they did it from

their memory of their teachers’ sermons i.e. on the basis of what they remembered hearing

from their teachers. Thus, the second level instruction by the disciples of the original seers

are termed Smriti texts. Human memory can be erroneous and for that reason, smritis have

the possibility of being distorted.

Shruti, being directly realized knowledge, is believed to enjoy higher validity than smritis

whose words are valid only if in conformity with Shruti. In the Bhartiya knowledge system,

Shruti or Veda enjoys indisputable validity also because some schools of Bharatiya darshana

like Nyaya - Vaisheshika and Vedanta and the Smriti - Purana tradition consider them to be

words of the omniscient Ishwara or God. The Mimamsa school considers Veda to be

Apaurusheya i.e. not authored by any one and therefore beyond all possible errors. To lend

eternal validity to Vedas, the Mimasakas argue that Vedas have not been authored even by an

omniscient God because to say so would imply that the Vedas did not exist before God

created them. This would further imply that they did not have any validity in that period.

Therefore, according to the Mimasakas, the Vedas have to be admitted to be eternal.

 41

Both the Mimamsakas and the Vedantis argue vociferously for undisputed validity of the

Vedas because their entire theses are built on the words of the Vedas. Rituals prescribed by

the Mimamsakas and the theory of the Atma propounded as by the Vedantis derive their

validity from the Vedas.

On the other hand, many other schools of thought like Nyaya - Vaisheshika and Samkhya

prove their claims on the basis of arguments. They do not rely on the words of the Vedas as

much as the Mimamsakas or the Vedantis do. Therefore, they do not lay so much emphasis

on the authority of the Vedas, though they do recognise Vedas as the highest authorities.

The range of Shruti or Veda is not confined to the four Samhitas. Each samhita also has its

three layered supplementary literature consisting of -

i. Brahmanas

ii. Aranyakas and

iii. Upanishads.

The Brahmanas are texts containing details of Vaidika yajnas and other rituals and form the

core of the sacrificial tradition of the Mimamsa school.

The Aranyakas are philosophical interpretations of Vedic rituals and seek to turn them into

exercises for spiritual rejuvenation.

The Upanishads propound the core Indian philosophical concepts of Atma, rebirth and karma

theory and form the basis of all the schools of Indian philosophy.
 42

It may be noted that in the Bhartiya tradition, the word Shruti or Veda in singular signifies all

the four Samhitas along with their supplementary literature. When something is claimed to

have been written in the Shruti, it could be found in any of the Samhitas, Brahmanas,

Aranyakas or Upanishads.

Brahmana texts also contain early speculations on rituals, societal norms and law, grammar,

etymology, ganita and jyotisha and several other subject areas. These were later developed

into the six vedangas i.e. auxiliary sciences for the study of the Vedas and practice of Vaidika

rituals. Shruti or Veda is said to be the source of all other branches of knowledge as well viz.

poetry, dance, drama and music etc.

In the domain of Dharma and Vyavahara too, the Veda is said to be the original source

because it is the earliest available literature in which there are references to several dharmic

and legal issues. However, it needs to be noted that the Vedas only make oblique references

to such issues and are not prescriptive like the later smritis.

The question of overriding authority of Vedas (and smritis) presents a very difficult dilemma

in the domain of Dharma which is very extensive as Dharma seeks to prescribe rules and

regulations for all aspects of human life. This not only covers all human interactions and

relations in the social, economic and political spheres but also religious beliefs and ritual

practices. What further complicates the matter is that Dharma has also ritualized social,

economic and political activities and sought to validate their prescriptions or prohibitions

regarding these activities by invoking the authority of the Vedas or the Smritis based on the

Vedas.

This makes all social, political, economic, administrative and legal rules and regulations

beyond critical review. This makes them absolute and unchangeable and makes the entire
 43

social system absolutely rigid. However, the evolution of Dharma Shastra over three

millennia shows how ancient and medieval scholars of Dharma Shastra grappled with the

problem of textual authority and the need for change.

One interesting tool of interpretation developed by the Mimamsa school and adopted by

Dharma Shastra is to distinguish between rules with ‘seen (drishta) objectives’ (artha) and

‘unseen’ (adrishta) objectives (artha). The former are the rules whose results cannot be seen

i.e. known through our normal means of knowledge. For instance, rules of ritual bath or rules

for making offerings to deities or ancestors. Their validity cannot be determined on the basis

of our general experience of the world. They have to be accepted to be true because they are

prescribed by some authoritative text.

On the other hand rules of marriage and partition or trade and commerce, evidence or court

procedures are made with some specific social, economic, political or legal objectives.

Hence, the validity of these rules has to be determined on the basis of their efficacy in

fulfilling those objectives. These rules cannot be assigned unseen objectives and pushed

beyond critical review.

Thus, within the domain of Dharma, scope is created for bringing flexibility to the system to

enable amendment and even notional abrogation of earlier rules.

The ‘abrogation’ is only notional because texts from the past cannot be purged of rules.

However, authors of subsequent smritis have laid down alternative rules thereby providing

alternatives to earlier rules. Interestingly all smritis claim authority by claiming that they are

based on the Shruti.

Authors of later digests and commentaries benefit from these variations as they get a large

pool of rules to choose from and create their own alternative systems - all deriving authority

from ‘sacred’ texts.

 44

This has allowed the Dharma Shastra to negotiate it's way out of the dilemma of authority of

texts like the Vedas (and the Smritis) and yet make enough room for heralding change where

necessary.

Therefore, in conclusion, it needs to be noted that despite its insistence on the authority of the

texts, the Bhartiya knowledge tradition has kept Dharma very flexible so that it can adapt

itself to emerging situations and remain relevant in all times (sanatana). It's all- timeness lies

not in mindless adherence to the letter of the law but in its unique ability to invest past texts

with new meanings and make them look always contemporary and relevant.

In Dharma Shastra, including Vyavahara, Shruti plays only a notional role. It is always the

Smritis which are cited as authorities. However, as already indicated, there are multiple

smritis which are often at variance with one another. So to prove the authority of one smriti

over the other, the test of adherence to Shruti was developed. In other words, a statement

from a Smriti was considered to be more authoritative than the other only if it could be shown

to be based on some Vedic statement.

Where no Vedic source could be shown for a Smriti rule, the authority of the lost Shruti was

invoked. This needs to be elaborated.

It is well known that in the long history of India’s textual tradition, several Vedic recensions

have been lost. So it is presumed that a Smriti rule which could not be directly trace to a

Shruti, is nevertheless valid because it might have emerged from a lost Shruti. This shows

how Shruti is seen as the force behind dharmshastra tradition.

The idea of the overriding authority of Shruti over Smriti and custom is somewhat akin to

the contemporary practice in constitutional law where the validity of all legislation and

executive orders and even social practices is accepted or denied on the basis of it's conformity

or otherwise to the letter and spirit of the constitution.

 45

It needs to be appreciated that every normative system needs a strong and inviolable basis to

stand upon. In the domain of Dharma and vyavahara, it is the Shruti which provides that basis

to the social and legal superstructure, how so ever tentative or fragile the relation between the

two might be.

Dharmshastra had to struggle harder when it could not find any Shruti or Smriti rule as

authority for prescribing or proscribing any conduct. In such a situation convention or custom

was relied upon as the source of Dharma.

However, authenticity or authority of custom was also called in question repeatedly. In this

situation dharmashastra fell back upon the written text and held that only customs which

accord with Shruti (or smriti) were valid. At the same time Dharma Shastra does not shy

away from renegotiating the meaning of Shruti or Smriti texts to make them accordingly with

emerging customs.

Social dynamics makes Dharma Shastra adopt a dynamic approach and assign higher

authority to Shruti or Smriti or custom as per the needs of desh (place) and kala (time).
 46

Smriti

Ashutosh Dayal Mathur

(Retd. Associate Prof. and Head of the Department of Sanskrit, St. Stephen’s College, Delhi)

The word Smriti literally means memory. However in the Bhartiya knowledge system it refers to

all texts written by ancient sages on the basis of their memory of what they had heard from Vedic

seers. It is believed that Vedic sages perceived truths directly and spoke them out in the form of

the Vedas. Their disciples heard their sermons and on the basis of the memory of what they had

heard, they (the disciples) composed the texts called the Smritis.

Although texts belonging to various disciplines are given the generic name Smriti, this

expression is largely reserved for texts dealing with Dharma and therefore Smritis are also called

dharmashastra. As Dharma Shastra, the Smritis define roles and lay down the duties and

privileges of individuals and social groups in their different mutual interactions - social, political,

economic and religious. It covers human relations with all other creatures and entities in the

universe as well. A significant part of the Smritis deals with religious rituals as well.

Dharma Shastra is aware of the many possibilities of transgression of Dharma by individuals. It

has sought to curb such transgression by two modes - prayashchitta and Vyavahara.

The former consists of penances and purificatory rites. Vyavahara on the other hand deals with

state administered law. The rules which regulate the exercise of this power by the state are

covered under Vyavahara. The Vyavahara part of Smritis lays down extensive substantive laws,

laws of procedure, laws of evidence, rules of pleadings and interpretation of smriti rules. This

forms the subject matter of law as understood today.

 47

In the field of law, a large range of texts are covered under smritis. The earliest among them are

the dharmasutras. Works like the Apastambiya Dharma sutra, Gautama Dharma sutra, Vishnu

Dharma sutra etc. contain material on law and legal procedures.

These are followed by metrical Smritis attributed to sages like Manu, Yajnavalkya, Narada,

Katyayana, Brihaspati and many others. The metrical smritis, almost two hundred in number,

lay emphasis on different aspects of Dharma - from social conduct, religious rituals like various

vratas, fasts, festivals and pilgrimages. They form the basis of the social, religious, philosophical

and the legal system that has existed in India for nearly two thousand years. Vyavahara as law

forms a very significant part of the Smritis. Many smritis discuss civil and criminal laws, laws of

procedure and evidence in detail. They also discuss principles of jurisprudence and provide the

philosophical background of the legal system.

Among the metrical Smritis, the one ascribed to Manu is believed to be of highest authority. It's

importance lies in the fact that it is the earliest available text in India which covers the entire

field of Dharma in its various aspects. In twelve chapters it seeks to present a comprehensive

scheme of life for individuals and the society leading to the acquisition of the four aims of life

namely Dharma, Artha, Kama and Moksha. Chapter VIII of this work is the earliest available

exposition of various branches of law covering the traditional eighteen titles of dispute, laws of

evidence and procedure.

It must be acknowledged that many of its prescriptions (and of later smritis as well) are out of

sync with the current democratic understanding of equality and justice. Yet, there is no denying

the fact that the principles, social institutions, beliefs and practices found in this text and in texts

based on the Manu Smriti, whether in sync with or out of sync with the current understanding,
 48

have influenced and shaped life in India for over two millennia. Going by the spirit of

dharamshastra, it can be said people in different times and places, must choose what is conducive

for them and omit what is not. As indicated above, despite its strong commitment to a long

textual tradition and social conventions, the Bharatiya Dharma Shastra tradition provides enough

scope for constant correction and growth.

The Yajnavalkya Smriti which came after the Manu Smriti, for the first time clearly segregates

Vyavahara i.e. law from other branches of Dharma. It has arranged all rules pertaining to law and

legal procedures in a separate (adhyaya) section called Vyavahara. Yajnavalkya differs

significantly from Manu in its treatment of inheritance and partition laws.

Three smritis ascribed to Narada, Katyayana and Brihaspati are of particular importance in the

field of legal studies. They specialize in procedural laws, constitution of courts, drafting and

pleadings, rules of evidence, review appeal etc.

A very large number of Smritis composed over a long period and probably in different parts of

the country suggests that people's practices in different parts and at different times were indeed

different. This also suggests that new Smritis were composed to grant ex post facto validity to

peoples' practices and to record current practices for posterity. This is a very interesting

phenomena which shows how people's practices have impacted the so-called sacred texts which

have constantly attempted to update themselves to match with current practices. This continuous

interaction between the shastric and the popular is a unique feature of the Bharatiya knowledge

system and can be observed in the growth of almost all disciplines in India, including Dharma

and Vyavahara.

All the Smritis are supposed to have equal authority. Interestingly, Smriti texts often differ with

one another on several issues. Contradictory rules are often reconciled by taking them to be
 49

optional and it is left to the wisdom of the concerned person to choose any of them according to

his peculiar requirements. Another way of reconciling apparent contradictions is to show that

there is no real contradiction and that different rules applied to different situations. Thus,

sufficient scope is created for the operation and application of different rules.

The third layer of texts passing under the name Smriti are commentaries on earlier Smriti texts.

These are called tikas or bhashyas. There is a huge commentarial tradition on various Dharma

sutras and metrical Smritis. Among them some more important ones are Asahaya’s bhashya on

the Narada smriti, Medhatithi’s bhashya on the Manu smriti and Vijnaneshwara’s bhashya on the

Yanjavalkya Smriti.

The fourth type of texts under smriti, are digests called Nibandhas. Some of these nibandhas are

mere topic wise compilations of verses from different Smritis and are therefore in the nature of

anthologies. On the other hand, some nibandhas seek to present a coherent system of laws for

being enforced by the patron kings of the authors.

Often commentators and authors of digests have to reconcile contradictions among Smritis or

choose from the large pool of Smritis. One great merit of many commentaries and digests is that

they discuss in detail the reasons for choosing one rule over the other. This gives readers a good

insight into the making of a legal text in different times and at different places. It helps them to

understand how the law has evolved and changed with time.

Commentaries and Nibandhas also record vociferous debates between proponents of contrary

views on legal (and other) matters. These offer some insight into how laws were operationalised

in actual dispute situations in courts of law. One can see here how debate and argument was used

as a significant tool to interpret non - legal and legal provisions.

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One such very significant debate in Vijnaneshwara’s commentary on the Yajnavalkya Smriti

can be cited as an illustration.

In some Smritis the widow of a deceased male is not given any share in her husband’s property.

On the other hand Yajnavalkya makes the widow an equal inheritor with the deceased’s sons and

places her at the head of the list of inheritors. The issue gets more complicated when it comes to

the rights of a sonless widow. Many smritis upheld the claims of the deceased’s father or mother

or brothers to inherit his property to the exclusion of the widow and the daughter. Vijnaneshwara

had to fight an aggressive battle with the opposing side which gave several arguments to support

its claim but Vijnaneshwara demolished them all to finally uphold the sonless widow’s right to

her husband’s property.

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Concept of Dharma in Bhartiya Knowledge System

Ashutosh Dayal Mathur

(Retd. Associate Prof. and Head of the Department of Sanskrit, St. Stephen’s College, Delhi)

Bharata has been a knowledge producing culture for ages. It has been studying, analyzing and

systematizing knowledge itself for a couple of thousand of years. In the early or the Vedic phase

the four vedas and six vednagas constituted vidya. The principal subject of inquiry were the

Vedic samhitas themselves. Six auxiliary sciences were developed for the study of the Vedas.

Two of them shiksha and chhandas dealt with the reading and pronunciation of the Veda. Nirukta

and vyakarana with the interpretation of the veda and Kalpa and jyotish with the practical

implementation of vedic injunctions, primarily dealing with various kinds of rituals.

The second trend is to be found in the Upanishads where all these vidyas got relegated to the

status of avidya i.e. inferior knowledge and the science of the atman became the principal vidya.

It needs to be noted that even in the Vedic samhitas, there was enough material which qualifies

to be called philosophical and that the Upanishads developed those thoughts further. Questions

raised by the philosophical suktas of the Vedas and then the Upanishads prepared the ground for

the development of more vigorous philosophy in the form of various schools of Bhartiya

darshanas.

From sole or excessive emphasis on ritual and material fruits of rituals and from denial of the

world of experience and growing emphasis on renunciation, in the Smriti-Purana- Ithihasa age,

Bharata developed a more balanced world view where ‘vidya’ and ‘avidya’ or spiritualism and

materialismwere sought to be brought together and balanced.

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This thought process brought back the focus on many worldly vidyas. The earlier vedangas

which began as auxiliaries to the Veda, began to develop as independent sciences, even while

retaining their umbilical chord with the veda. This stage saw the flourishing of vyakarana,

nirukta, chhandas, jyotish and a proliferation of theories and texts. Darshana also began to

flourish to provide and strengthen the idealist and the realist position.

Materialism or Realism provided a fertile soil to the growth of two more subject areas called

artha shastra and dharma shastra. Artha shastra as the science of governance, politics and

administration deals with political authority. Dharama shastra deals with norms of social

conduct. Artha shastra was later subsumed under Dharma shastra. Dharma shastra brought the

entire subject matter of artha shastra under the duties of a Kshatriya grihastha.

In the Bhartiya knowledge system, Dharma seeks to control man’s coarse desires so as to create

suitable conditions for all to live a happy life in the community. It is a programme of action to

harmonise all the needs and wants of individuals and communities through dharmic means.

Dharma turns man’s normal, everyday, natural and instinctive desires and their pursuit into

dharmic activities. The expression dharmic includes the legal, the moral and the socially

acceptable but is wider than these. It is rooted in Bhartiya cultural and philosophical beliefs.

Manu Smriti very succinctly gives the entire theoretical background of Dharma –

‘That people should become slaves to desire is not good but there cannot be an absolute cessation

of desires.Hence dharma prescribes the path of Vedic karmayogaie engagement with the world

under vedic discipline. In the Bhartiya philosophy of desire, artha and kama are recognized as

natural to all human beings. Artha means desire for power and wealth and Kama i.e. the desire

for all material pleasures. The desire for power and the desire for wealth go together as they

beget each other. The artha shastra and the kama shastra themselves are designed to guide the
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pursuit of artha and kama under restricted conditions. However, because their principal objective

is to promote artha and Kama, their focus is onartha and kama respectively.

A significant takeaway from Dharma shastra is that life needs to be organised. Man has come a

long way from the state of nature when no rules was the rule. The very idea of civilization means

that man has to make an effort to so organise lives as to facilitate smooth conduct of life and

avoid friction and confrontation.

Secondly, Dharma deals with life as a whole. It does not divide the individual into his social,

political, economic, religious, rational or irrational self because ultimately every individual and

every community is a complex of all these phenomena.

Thirdly, Dharma encompasses the whole world - all existence in this universe, and particularly

all possible human relationships. It encompasses all sections of the society from kings to

commoners, from highly educated to the illiterate, from those belonging to the highly cultured

and polished sections to the less advantaged and from very rich to very poor and from those

belonging to the mainstream of the community to those at the periphery and even outside it.

Dharma realizes their interdependence and indivisibility.

Fourthly, Dharma further tries to organise the life of the individual in a manner that will

harmonise his personal and professional life.

The Dharma scheme of organizing life of the individual and of communities has two pillars – a

robust institutional framework and a strong pitch for individual’s moral integrity.

It has organized individual’s personal life along the ashrama system and one’s community or

professional life along the varna system. For the brahmana, who's vocation is teaching and

continuous study all life and performing religious rituals, the dharmashastras prescribes a very
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frugal life. In his personal life a brahmana has to lead a life of discipline with no concern for

luxuries and even comforts in life. His family is also expected to share that life of discipline.

Even the King is required to refrain from all vices in life, particularly wine, women, gambling

and hunting. The ideal King in Hindu polity is the Rajarshi – a monk king. He wields all power

but exercises it for the benefit of his subjects. Such a plan of life helps the individuals in staying

the right course.

Families, village communities, traders’ guilds, gurukulas markets, and ultimately the state are

important institutions which govern peoples’ lives. Despite, many freedoms enjoyed by social

organizations, the king appears to be at the helm of all organizations and governs their conduct.

Yet, dharma has created enough institutional checks to prevent misuse of power by state

authorities. Dharma also asks whether mere institutional mechanisms are sufficient for

maintaining order or justice of fairness in the system. It knows that manipulation can lead to the

collapse of the best of institutions. It, therefore, presents non- violence (ahimsa), truth (satya),

frugalness (aparigraha) as its core values.

A study of dharma texts reveals some significant principles at its core. While it upholds the value

of social communities, it strives to protect the dignity of the individual. Therefore, earlier

provisions against giving ownership in wealth and property to women, slaves and physically

challenged persons are overturned and their right to own and enjoy property is recognized, if not

the right to alienate it at will. In matters of legal procedures, dharma is liberal and is willing to

accommodate people in stressful or difficult situations. For instance, courts are barred from

summoning farmers at harvest time or calling women in general and particularly when they are

pregnant. One can see a conscious move to move away from cruder forms of justice. For

instance, some of the earlier practices like trial by fire are discounted. Husband’s right to chop
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off his wife’s nose and ears is taken away. Husband’s right to throw the wife out of his home is

denied.

The most significant principle underlying Dharma rules is of ‘factum valet’. It literally means

what ought not to be done, becomes valid when done already. It is on this basis that many

transgressions of social laws are condoned and accepted. Despite strong protestations about the

inviolability of dharmic laws, dharma shastra exhibits remarkable generosity towards

transgressors. For instance, while emphatically supporting the superiority of marriage within

one’s own social group, Dharma shastra allows all inter varna marriages, though children born

out of such wedlocks are placed low in caste hierarchy. Premarital alliances are discouraged but

an unmarried girl who even gets pregnant is not ordered to be put to death. Her child is given full

protection and it is deemed to be the child of the man who marries her or surprisingly is treated

as the child of its mother’s father. The child even gets to inherit his maternal grandfather’s

property.

The way Dharma has evolved shows how human beings are rooted in their culture and thoughts

and believes and practices, how traditions nurture and sustain communities over centuries and

yet it also shows how individuals and communities adapt to newer situations as they find out

ways to tackle developing situations, to handle problems which arise from time to time, they

learn to manage their own regulations and the regulatory system itself.

The process of evolution of Dharma was influenced both by the elite and the commoners.

Sometimes thinker - philosophers have laid down the path to be followed by others, sometimes

mighty Kings have succeeded in imposing their systems. Yet, dharma texts show how dharma

has changed under the influence of social organisations like family, caste groups, villages and

professional guilds which have together worked out some systems.

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It is also true that in many cases, particularly in matters of caste hierarchy and privileges of the

upper caste, dharma shastra does not record a similar change. In fact, status quo is normally

maintained throughout. Deeply entrenched political and economic interests have contributed to

the perpetuation of this discriminatory social order.

One very interesting understanding that develops by the study of Dharma shastra is that one has

to look at things not just from the perspective of the immediate moment or the immediate past.

One has to take a longer view of things to be able to understand any social phenomena. If one

across texts beginning with earlier sutras, then move into smritis, the commentaries and later

digest’s which continue to be written till about 19th century, one will see how things have

changed, how conscious efforts have been made to bring about improvements in various aspects

of life. One will observe a constant tussle between status quoists and pro changers. There are

vigorous debates about whether a new idea or a new practice can be introduced or not. There are

arguments against established practices because whatever might have been the beginnings of

those practices they ultimately began to impinge upon the interests of a large section and

therefore there was a need to take a relook an amend those practices to bring them in tune with

the evolving situation and circumstances.

Most significantly, Dharma shastra recognizes peoples’ right to reject what they do not find

conducive to their times. But Dharma shastra adopts a respectful to prevalent norms. It brings

about major changes in dharma even while keeping its faith in it. This is quite like saying that the

constitution can be amended without rejecting it. The Supreme Court has developed the idea of a

basic structure to determine the limits to which the parliament can amend the constitution.

It needs to be understood that very normative system has to maintain its sanctity and

inviolability. Yet it must be flexible enough to accommodate changing aspirations of the people
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whose conduct it seeks to regulate. This continuous dialogue between norms and people must

happen. And dharma shastra encourages this constant inter action.

Theoretically dharma shastra seeks validity for its prescriptions and prohibitions from Shruti.

Shruti or vedas are supposed to be the highest pramana because they are said to be the word of

God or described as beginning-less and endless, beyond time and space and hence not vitiated by

human frailties and failures. However, in the three thousand years old history of dharma shastra

literature, it does not place reliance on shruti or the veda. Here the overriding authority granted to

Veda is token or pragmatic. Every normative system requires a strong and solid basis and Veda,

because of the greatness attached to it in people’s perception, seems to fit the bill well. It needs

to be pointed out that more than the Veda, Dharma shastra relies on the smritis – Manu,

Yajnavalkya, Vishnu, Narada, Katyayana, etc. to support its prescriptions and prohibitions.

Smritis are a believed to be a reliable source of dharma because they are theoretically based on

the Veda and their authors are supposed to be great Rishis who have based their observations on

the Veda. However, there are close to two hundred smritis with a huge commentorial tradition

and a large volume of texts called the Nibandhas. The nibandhas seek to create some system out

of the incoherent chaos that smritis have created by giving very contradictory prescriptions. An

important take away here is that while Dharma shastra norms are pegged on some textual

authority, the huge diversity within the textual tradition brings in a unique flexibility.

Surprisingly, even this huge dharma shastra literature was not able to satisfactorily define and

prescribe what is ‘good’ and sadachara i.e. custom became an overriding source of law. A large

part of the Bhartiya society even today follows the traditional or customary laws. These are very

diverse and vary from time to time and from region to region. So local customary laws are given

an overriding authority in matters of dharma. It is written very clearly in the Yajnavalkya smriti,
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that a king must apply the specific dharmas of families, communities and regions while

adjudicating matters pertaining to them. One can presume that the huge number of smritis and

post smriti works record local customary laws.

A closer reading of the Dharma shastra also indicates that society has never been homogeneous,

that at different points in time and at different places and at any given point in time even within

the same geographical region, people have had different beliefs and practices. Dharma shastra

thus allowed a lot of freedom to local communities to develop their own systems - their social

systems, their religious beliefs and practices even their own deities. One can see some broad

commonalities between or among those various systems but each of those systems has its own

very distinct and sometimes startlingly different practices and institutions. Dharma shastra is

fully aware of these differences and is willing to allow people to live according to their own

sense of right and wrong.

At least some part of Dharma deals with the supernatural. These are peoples believes and

practices regarding supernatural powers like gods and goddesses and processes of their

propitiation. Various kinds of rituals, tirtha yatra, upavasa etc. are prescribed and practiced.

These elements fall within what may be called ‘adristartha’ matters i.e. matters which are beyond

normal means of cognition, their validity cannot be proved through the known means of

knowledge. They are believed to be valid because they are prescribed in authoritative texts or

that they have been a part of the tradition. Yet, several scholars within the tradition have not

shied away from rejecting past practices and introduce fresh ideas in the society. Bhartiya

dharma has been a bold and self critical tradition.It has had the courage to admit the aberrations

in dharma which need to be corrected.

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Later dharma shastra authors in the early and late medieval period, who lived in a very different

world than that of the smritis, had to grapple with many awkward situations. They could not have

rejected dharma shastra as such and yet could not have followed all its prescriptions and

prohibitions given over the centuries. Therefore, they developed several tools of interpretation

whereby they could choose and use the texts as per their needs.

Dharma tradition recognizes that a large part of dharma has a practical and pragmatic or this

wordlyie LAUKIKA purpose. Hence the validity of a rule must be and can be ascertained in

terms of its efficacy to deliver on its avowed purpose. Kulluka a 12th century commentator on the

Manu Smriti discusses the question about the validity of non vedic statements. He cites Shabara

Sawmi to say that they are valid because they have a known objective.

Another very significant rule of interpretation is that if a known objective can be ascribed to a

rule, it should not be assigned an unknown purpose. This shows that dharma shastra itself is

against turning every rule into an alaukika or a sacred one and putting it beyond scrutiny.

Much of dharma deals with social life and mutual inter actions of humans. It is because of

extraordinary plurality and diversity in society that dharma has to continuously keep balancing

various interests. Clashing interests lead to conflict and therefore the need for tools for conflict

resolution. This is exactly the area which the state seeks to govern and control. So politics,

government and law become essential parts of dharma.. Resolution of disputes requires some

kind of authority over people. It is for this very reason that dharma is put under the over

allprotection of the political sovereign. Manu declares the king to be the guarantor of dharma.

(VII. XXX)

Here arises a conflict between dharma and Rajaniti. Medhātithti (8th century) argues in detail

how rāja dharma of which vyavahāra is a part, is distinct from dharma. Though the word dharma
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is suffixed to rāja in rāja dharma, the subject matter, the purpose, and the validating factors of

dharma and rājadharma are said to be vastly different. By placing most of human interaction

within vyavahara – marriage, inheritance, trade and commerce, banking, transfer of property etc,

under vyavahara, Dharma shastras from a very early period have effectively put these under

political – human scrutiny.

Dharma shastra also precludes dharma from intruding into the domain of specialized sciences.

For instance with reference to the rules about days fit for cohabitation for the birth of a son,

Medhatithi says that these rules derive their validity not from the Veda but from Ayurveda. His

argument is that Ayurveda is a specialized science and Veda cannot legislate on matters within

the domain of specialized sciences. He also says that in questions pertaining to the structure of

words Vyakarana has a higher authority than Veda. This is a very significant development and

seeks to draw a distinction between religion and secular sciences and also holds that religion

should not interfere with secular sciences. Thus, dharma shastra provides a template to avoid

rather obnoxious practices defended by some people as dharma.

Even with reference to texts, dharma shastra has developed interpretative tools to deny or

somehow scale down the authority of sacred texts. One is to declare that certain sections of the

text are non-injunctive in nature and hence not enforceable. These are three kinds of statements

in shastric texts - vidhii.e. prescriptive statements, nishedha i.e. prohibitions and Arthavadasor

descriptive statements of praise or censure. The Arthavada statements neither prescribe nor

prohibit hence they are not enforceable.

One very revolutionary idea that dharma shastra has developed is that laws prescribed by shrutis

and smritis become time barred if people begin to detest them. dharma shastra this is something

very normal. It rejects several earlier rules and practices which later became totally unacceptable
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to people and were therefore not enforced, though they were not edited out of the texts. One such

practice was niyoga where a deceased man’s wife cohabits with another man to produce a son.

This is how many lead characters in the Mahabharata were born. But Manu declares this to be

very obnoxious – a pashu dharma ie something that only animals practice. Similarly, there are

indications that at some point in time cow meat was indeed eaten in India. But it was later

condemned and prohibited. On this analogy Manu’s rule granting a special share to the eldest son

in father’s property was rejected by Vijnaneshwara, the celebrated commentator on the

Yajnavalkya smriti. That something has been prescribed by a sacred text does not mean it

becomes binding for all people for all times. It can be rejected if people begin to dislike it.

Yet, Dharma shastra does not insult texts even if they contain some unacceptable provisions. It

reinterprets such provisions or ignores them or at best declares them to be unenforceable in the

changed time and space – desha and kaala and takes the rest of the text as valid.

The Bhartiya philosophy of Dharma holds the key to the resolution of many current social

problems. With growing sensitivity to identity issues, it can help India to redefine herself as an

open and liberal society which greatly values its past but is not stuck in the past, a society which

is ready to learn, adopt and adapt according to the evolving circumstances and march into future

with great courage and confidence. Dharma shastra truly defines Bhartiya culture as neither

puratana (ancient) nor just adhunatana (modern) but as Sanatana i.e. belonging to all times

because it has the unique ability to adapt itself to evolving situations.

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Ancient concept of Dharma, Shruti and Smrti

Prof. Dr. Anagha Joshi

Sanskrit Department, Savitribai Phule Pune University

Indian Knowledge Systems (IKS) is a division of the Government of India's Ministry of

Education which purports to promote Indian systems of knowledge. The Indian

knowledge system i.e भारतीय ज्ञान परंपरा rooted in ancient wisdom and philosophy,

encompasses a vast array of disciplines including philosophical systems i.e. darsanas,

astronomy, mathematics, medicine, literature, law, commerce, Town planning,

Architecture, Arthasasatra (Public administration, finance, and foreign policy) and

management. At the core of this system is the Sanskrit language, which has played a

significant role in the preservation and dissemination of knowledge throughout Indian

history and dating of the Indian literature is a major challenge.

The primary objective of IKS is to promote interdisciplinary research on all aspects of

Indian Knowledge Systems. IKS aims to preserve and disseminate indigenous

knowledge for further research and its practical applications in society.

Sanskrit is rightly recognised as the greatest possession of India. It is known for its

rich content. It has a long tradition of teaching and learning. The ancient knowledge in

India was preserved and transmitted orally i.e. मौखिकी tradition. It is not only a

language but a ज्ञानभाषा.

It starts from the period of Samhita texts

i.e Ṛgveda – praises of deities

Yajurveda – mantras related to rituals

Sāmaveda – melodies for singing the mantras

Atharvaveda – mantras on social topics

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To understand the Veda Vedangas are important. They are limbs of the Veda. Each

anga is important in the case of body in the same manner vedāngas are important. Six
vedāngas are explained in the Ancient Indian tradition.

• Śikṣā - The science of Phonetics and of pronunciation

• Kalpa - The science of Rituals

• Chandas - The science of prosody

• Jyotiṣa - The science of astronomy and astrology

• Vyākaraṇa - Grammar

• Nirukta - The science of etymology

Kalpa or Kalpasūtra (science of ritual) is one of the six auxiliary lores (angas) of the
Veda. Kalpasūtras are classified into following

i. śrautasūtras deal with the rituals in connection with the performance of sacrifice
Vedic sacrifices

ii. Gŗhyasūtras deal with the various ceremonies to be performed and rites to be
undergone by a man beginning from his birth up to his death.

iii. Dharmasūtras deal with some of the topics occurred in the grhyasūtras. They
were closely connected with the gŗhyasūtras in subjects and topics such as

marriage and samskaras, rules for Brahmacharya, snātakas, householder, on

shraddha and so on but additionally dealt with economic life, politics,

government, civil and criminal law.

iv. śulbasūtras are directly attached to the rules for measurement and the building
of the place of sacrifice. They are called as the oldest works on Indian

Geometry. This is in brief the vast span of Sūtra literature.

When we come to the dharmasūtra and Smŗti literature following are the available

dharmasūtras

• Gautama – The earliest of the extant dharmasῡtras and specially studied by

followers of the Sᾱmaveda

• Āpastamba – A text Belonging to the Taittirīya branch of the Black Yajurveda.

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• Baudhāyana – A text belonging to the Taittirīya branch of the Black Yajurveda.

• Vasiṣṭha –is conventionally ascribed to the Vedic ṛṣi, associated with the Ṛg

Veda.

Smŗtis are

• Manu – also known as Mānava-dharmaśāstra or Manu-saṃhitā is the most

authoritative of Sanskrit legal texts.

• Yājñavalkya – Yᾱjῆavalkyasmṛti is closely connected to śukla Yajurveda

• Nārada – as a law-giver, is more exhaustive than earlier Smrtikaras

• Bṛhaspati – one of the prominent ancient law-givers

The Vedas are the primary source of Hindu Law. The knowledge that arises from Veda

is valid itself because the Veda is eternal. It is not a creation of any human being i.e.
it is self-valid or autonomous. Veda is first and foremost source of Dharma. Other two

sources of Dharma are the Smrtis (Tradition) and good custom or Practice of the Sistas

i.e. sadachara or sistachara. Dharmasastra is known as Smrti and it is stated in the

Manusmrti as “श्रुखतस्तु वेदो खवज्ञेयो धममशास्त्रं तु वै स्मृखत: ॥ श्रुखत literally means that which is

heard and स्मृखत that which is remembered (श्रुततं पश्यखतत मुनय: स्मरखतत च तथा स्मृखतम् ।)

The compound expression Dharmasastra is formed of the two words namely धमम and

शास्त्र. Dharma has been one of the most powerful and influential terms in Indian thought

and society for several millenia, right from Vedic times upto today. Dharma is one of

the most complex expressions which cannot be defined or explained precisely.

Etymologically it is derived from the root dhr which means to hold, to bind, to sustain,
to support, to preserve etc., The concept has occupied the central place in ancient

Hindu thought. It refers to the right or proper conduct and it covers English concepts

such as ordinance, law, usage, customary observance, morality, duty, obligation,

religion, attribute, and quality.

Let us have a look on some definitions of the term Dharma:

धरखत लोकान् इखत धमम: । That which upholds the world

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यो लोकान् धारयखत येन मानवसमाजो धृत: स धमम: । That which supports the world and human

society.

धारणाद् धममखमत्याहु: धमो धारयते प्रजा: |

य: स्याद् धारणसंयुक्त: स धमम इखत खनश्चय: ||

Dharma is so called because of dharaṇa or of its nature of supporting. Dharma upholds

people at large. So, the Dharma is that which is possessed of dharaṇa.

In Pali also the term dhamma signifies natural law, world order etc. In Buddhism the

term denotes truth, knowledge, morality, and duty. Dharma was not religion in the

technical sense but a code of conduct which regulated the whole expression of life.

Mīmāṃsa is one of the orthodox systems of Indian Philosophy which may be

understood as Indian Hermeneutics. As per the Oxford Dictionary, the word

‘Hermeneutics is stands for the branch of knowledge concerned with interpretation,

especially that of the Bible or literary texts.

The term Mīmāṃsa, here, stands for Pūrvamīmāṃsa. It concerns itself primarily with

the interpretation of the Veda. It is known as the science of sentence- interpretation

for the same purpose. The Veda was the basis of the ritual culture, prevalent in the

then society. Pūrvamīmāṃsa interprets the sentences in the context of the

performance of various Vedic rituals and the Uttaramīmāṃsa i.e. Vedānta interprets

the sentences of the Upaniṣad in the context of philosophical enquiry. The contents of

the entire Vedic literature are summarised in Dharma and Brahma.

Jaimini was the first who systematized the exposition of Dharma in the Pūrva

Mīmāṃsasūtras. The purpose of the Mīmāṃsa has been stated in the very first sutra
as अथातो धममखजज्ञासा । It is translated as: Thereafter, therefore, desire to know Dharma.

But it becomes meaningful when it is translated as: Then i.e. after studying the Veda

because the Veda is meaningful, therefore, one should discuss the meaning of the

Veda i.e. dharma. Then the question that naturally arises what is dharma? It is
answered in the next sutra as चोदनालक्षणोऽथो धमम: । and चोदना is (इखत) क्रियाया: प्रवतमकं

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वचनमाहु: । शाबरभाष्य Codana is a sentence that initiates a person to do the act or that

which is indicated by the Vedic injunction as conducive to highest good or goal i.e.

attaining the heaven etc. In other words, dharma i.e duty means any matter enjoined

by the Veda with a view to attaining a useful purpose (positive and negative)

(vidhivakya) and which is good for people is dharma. The Vedic sentence श्येनेन

अखभचरन् यजेत । lays down a sacrifice called Ṡyena. The sacrifice is meant for the one

who is desirous of bringing about the destruction of his enemies by means of the

practice of magical rites. Though, this sacrifice is Vedapratipadya, it is not desirable

as it is adharma. The Vedic sentences does not say that one should inflict injury to

others.

Vaisesika Sutra 1.1.2 says “dharma is what leads to happiness and final bliss or

ecstasy. यतोऽभ्युदयखन:श्रेयसखसखि: स धमम: ।

In short, Dharma is the strong foundation of the whole universe, by dharma they

remove sin or evil, everything rests on dharma so people declare dharma to be the

most excellent. (धमो खवश्वस्य जगत: प्रखतष्ठा धमेण पापम् अपनुदखतत धमे सवं प्रखतखष्ठतम् तस्माद् धममम्
परमं वदखतत ।)

In Ramayana the significance of dharma is shown as धमामद् अथम: प्रभवखत धमामद् प्रभवते सुिम्

। धमेण लभते सवमम् धममसारम् इदम् जगत् ॥ From dharma arises artha i.e the pleasure, from

dharma sukha i.e. happiness through dharma one attains everything dharma is the

very essence of this world.

Actions which are approved by Arya or duty conscious people who are well versed in

sacred literature is Dharma and that which is censured by them is Adharma यमायाम:
क्रियमाणं तु शंसतत्यागमवेक्रदन: । स धमो यं खवगर्मखतत तमधमं प्रचक्षते ॥

कतमव्यमाचरतकायममकतमव्यमनाचरन् । खतष्ठखत प्रकृ ताचारे स वै आयम इखत स्मृत: ॥

Dharma was not religion in the technical sense but a code of conduct which regulated

the whole expression of life. Further the concept of Dharma can be equated to the

Rule of Law. The term passed through several transitions of meaning and ultimately

its prominent significance came to be confirmed to “the privileges, duties and

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obligations of man, his code of conduct as a member of the community, as a member

of one of the castes as a person in a particular stage of life i.e. in the sense of Ashrama.

The application of the term dharma in the sense of Ashrama can be noticed in the

Chandogya Upanishad where it is stated that there are three branches of dharma such

as those of a house-holder, a hermit and a Brahmacharin. Smrtikaras like Manu,

Yajnavalkya use the term dharma as rules for governing the different varnas and

stages of life.

The other word Shastra also claims special notice. In it’s ordinarily significance

in popular language it is rendered as Science i.e. something which lays down

principles. However, literally it derives from the root sas to command, would be an

order which dictates sasti sasati, sisyati anena iti that by which a command is laid or

and enforced by shastra. So, the word sas like the word implies obedience with the

further implication that disobedience of the command involves punishment for those

who are guilty of disobedience. Therefore, in the popular language sasana has come

to mean sanction – i.e punishment. The importance of danda i.e. punishment as a

necessary part for a good government has been fully elaborated in Hindu Law.

Therefore, the expression Dharmashastra when interpreted in its significance would

mean the Rules or Ordinances or Regulations (Dharma) which have a binding force

(Shastra).

Last but not the least there is one more important aspect also. The well-known

rule that every right has a correlative duty is embodied in the word Dharma which is
indicative both of right and duty. In other words, dharma means performing one’s own

individual and social duties that lead to individual and social welfare. Thus, the

sanction of rights was based on the performance of duty which was more vital.

The Smrti literature contains comprehensive rules for the governance of the society

as a whole and they were not confined to purely religious matters. The Smrtis did not

declare for the first time what the rituals and domestic duties were, but only re-iterated

/ repeated what was being followed by the people traditionally through ages.

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Dharmasastra may be understood as a record of customs from various parts of

India and the difference in the Smrtis was due to the different local customs and these

Smrtis were not laws made by parliament or some legislature. Medhatithi, in his

commentary on the Manusmrti opines as the Smrtis were codifications of the existing

customs.

Ludo Rocher in his article (Proceedings of the American Philosophical Society, June

1993, Vol. 137 No.2, pp. 254-267) “Law Books in an Oral Culture: The Indian

Dharmasastra” quotes “In 1722, the British authorities in Calcutta decided that, to be

fair to the Indians, they should administer to them not British laws, which the Indians

did not know and would not understand, but the local Hindu and Muslim laws, which

they not only understood but had held in high esteem for centuries”. The problem was
that these law books which are known as “Dharmasastra” were in Sanskrit and to

understand and to translate these original texts of Dharmasastra, they had to learn

Sanskrit. Another point is the activity of Translation implies the translation of values

and culture also, it is the responsibility of a translator that he should know the cultural

background. If a text is interpreted properly then alone it serves the purpose of

translation and it will be authentic.

The British came to India for trade but later they become rulers. In the British period

Hindu and Muslim judges were appointed to help the judges for correct interpretation

of their own laws. In this period various digests have been composed or compiled for

them.

In ancient India crime was regarded as a sin and people used to condemn it. The

primitive societies lacked the institution of government to enforce a prescribed code of

conduct that is now called as law, but in ancient civilized societies all pervasive

concept of Dharma was evolved.

Hindu law is generally believed to have been derived mainly from the Dharmashastras

which have been preceded by and elaborated from the Dharmasutras. The

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Dharmasutras are one of the subdivisions of the Kalpasutra. The third type of Sutra is

the Dharmasutra which professes to be treatise on law.

In classical Indian thought deviation from the path of Dharma will result the

arājakatā. The Indian legal tradition always stressed on Dharma and righteous conduct
in life. In fact , this idea will be found to be prevailing in all the Smrits also. The first

verse of NaradaSmrti opens as follows :

धमैकताना: पुरूषा यदासन् सत्यवाक्रदन: । तदा न व्यवर्ारोऽभून्न द्वेषो नाखप मत्सर: ॥

नष्टे धमे मनुष्याणां व्यवर्ार: प्रवतमते । द्रष्टा च व्यवर्ाराणां राजा दण्डधर: स्मृत: ॥

When people were solely bent on dharma and were truthful then there was neither

administration of law and justice nor hatred, nor jealousy; but when dharma
disappeared among men, administration of law and justice came to be introduced and

in ancient times the king was declared to be the decider of disputes and the chastiser

of the quality. The king was the custodian of social order. The first and foremost duty

of the king is to protect his subjects. प्रजासुिे सुिं राज्ञ: प्रजानां च खर्ते खर्तम् । नात्मखप्रयं खर्तं
राज्ञ: प्रजानां तु खप्रयं खर्तम् ॥१.१९.३४).

Such textual statements and their translations confirm the perception of

declining Hindu self-controlled ordering and strengthening of the ruler’s position as

justice administrator.

Danda or punishment governs all subjects and punishment alone protects them.

Danda remains alert or is awake at night when the whole world is asleep. Therefore,

wise people consider danda as dharma i.e the very essence of righteousness. दण्डः

शाखस्त प्रजाः सवाम दण्ड एव अखभरक्षखत । दण्डः सुप्तेषु जागर्तम दण्डं धमम खवदुबुमधाः ॥ (मनु 7.18)

From the above discussion regarding the nature and origin of the Dharmashastras and

the meaning of the term Dharma used therein, it seems that Dharma could not mean

civil law, private of public law in the modern sense of the term.

The Smṛtis arrange their contents and treat the subjects under three principle
heads i.e. acāra (code of conduct), vyavahāra (law) and prāyaścitta (expiations).

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The term Vyavahara has been used in the Smrtis and the commentaries in the

sense of legal procedure, litigation or dispute. The concept is used as a device to settle

disputes and to uphold cosmic order. Legal matters are discussed under the name

vyavahāra in the Smṛti literature. Smṛtikāras or ancient law-givers have been ascribed
the various aspects of vyavahāra or judicial procedure. It is from this aspect that

Vyavahara has been derived and genesised thus :

खव नानाथे अव सतदेर्े र्रणं र्ार उच्यते । नानासतदेर्र्रणात् व्यवर्ार: इखत स्मृत: ॥

According to this verse vi means various, ava denotes doubt, hāra means removal. So

vyavahāra means that which removes various doubts. If a person complains to the
king or to his officers disregarded by others in a way contrary to the Smṛtis and the

established usage, then that subject is called as yavahārapada or titles of law. It is

explained by Yājñavalkya in the YājñavalkyaSmṛti. In the commentary Mitākṣarā the

commentator comments as व्यवर्ार: तस्य पदं खवषय: । i.e. the topic or subject matter of

dispute.

1. Transgression of Law as laid down in the Smrti or established by usage

2. Injury to someone other than the transgressor

3. Intervention of the King in his judicial capacity.

In Smrti literature there are eighteen grounds for litigation or vyavaharapadas

which are discussed by almost all Smrtikaras. About legal procedure Bṛhaspati in his

BṛhaspatiSmṛti states as-

खद्वपदो व्यवर्ार: स्यात् धनतर्ंसासमुद्भव:। खद्वसप्तकोऽथममूलस्तु तर्ंसामूलश्चतुर्वमध: ||

पदातयष्टादशैताखन धममशास्त्रोक्रदताखन च ।
It means law suits are divided into two groups. The first group of law originating

from wealth which consists of fourteen titles and those arising from injury to beings

consist of four titles. Bṛhaspati, one of the prominent ancient law-givers, was probably

the first jurist to make a clear distinction between civil and criminal law. Though, this

division does not exactly correspond to the division of law into civil and criminal but we
may say that the category of arthamūla as the result of lobha i.e covetousness and

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that of hiṁsāmūla to be result of krodha or enmity or kama (desire). In all, there are

eighteen titles of law which has been accepted by all Smṛtikāras. But the classification

into eighteen titles is not also a restrictive provision. Narada and later Smrtikaras

expressly stated that sub-heads of conceivable legal disputes could be innumerable.

Hindu law primarily known as customary law. e.g. customary rules could tell us that

when a man dies his property should go to his son. But if there is no son then who will

inherit his property? This was not answered by custom and this requirement was

fulfilled by the Smrtis, commentaries and digests in ancient India. To explain -

Yajnavalkya in his Yajnavalkya Smrti has given the order of succession of a person

who has no son and has departed for heaven i.e. another world. The order is his wife

and the daughter, both parents, brothers, their sons, etc., and on the failure of the prior
among these the next in order would be the heir in the property.

On failure of these i.e., wife and daughter the parents i.e., the father and the mother

are successors to the property. Here, in the absence of daughter the parent’s right of

succession is laid down. However, the question arises whether mother should be

preferred to father or vice versa or whether both the parents take the property jointly.

In the English translation by M.N.Dutta father is given first in the list. The commentary

Mitaksara prefers the mother to the father and to support his view the commentator

Vijnaneshwara comments three possible interpretations as द्वतद्वस्मरणात्

तदपवादत्वादेकशेषस्य धनग्रर्णे खपत्रो: िमो न प्रतीयते तथाखप खवग्रर्वाक्ये मातृशब्दस्य पूवं श्रवणात् प्रथमं
माता धनभाक् तदभावे खपतेखत गम्यते ।
i. In dissolving the compound word pitarau the word mātā comes first

ii. Even when the ekaśeşa compound (literally the one remainder) is not used

as in the case of mātāpitarau, the word mātā comes first.

iii. In the case where a man has several wives and several sons by each wife,

the propinquity / closeness between a particular son and his mother is

greater than between him and the father. ककं च खपता सपत्नीपुत्रेष्वखप साधारण: ।

माता तु न साधारणीखत प्रत्यासत्त्यखतशयोस्तीखत । स्मृखत चखतद्रका II. Vijnaneshwar states

that because the father is a common parent of all and the mother is a

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particular parent, the rule of propinquity / proximity / nearness alone has the

final determining factor for the mother as a preferential heir than father.

iv. Therefore, it is more proper that the mother should take the property and on

failure of her, the father is successor to the property.

Observations:

1. The original conception of Hindu Law was almost religious and philosophical

and there were duties than of rights.

2. In the treatise “Hindu Law and Usage” Sir Henry Maine quotes “Hindu Law

is the law of Smrtis as expounded in the Sanskrit commentaries and digests

which, as modified and supplemented by custom, is administered by the

courts”.
3. The customs of a particular country in a particular given period are like a

mirror in which the conditions of the people of that country are reflected and

customs kept changing as society progressed.

4. The study of legal history of ancient India gives some insights of the social

system in the then society. Law does not operate in vaccum, but it is related to

and functions in the society in which it is applied. Dharmashastras are very rich

sources of Legal and Social history of India. It contains systematized

discussions of all major legal topics. Therefore, it is very much necessary to

understand the legal history of ancient India.

5. Today the world is different and many things in the tradition may seem

irrelevant in modern times as time is changing very fast and science has

advanced to a very great extent. But there are certain principles which will

remain there for ever and which will be tested on today’s needs, but will

never be discarded. This is an ongoing phenomenon as interpretation is the

basic need of humanity. Human nature has remained the same through

ages. Hence many of these rules are still applicable only the contexts and

details may have changed.

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6. The implementation of National Education Policy 2020 will open the doors

to learn Sanskrit to those students who have background of Science,

Commerce, Management, Law, so on and so forth. But it would be great

opportunity as well as challenge for the Sanskrit scholar to prove the

potential of Sanskrit to cater the need of students with different or other than

Sanskrit background. What is needed is a genuine interest in going deep

into this age-old ancient Indian knowledge system i.e.भारतीय ज्ञान परंपरा

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Vyavahara or Law in Bharatiya Tradition

Ashutosh Dayal Mathur

(Retd. Associate Prof. and Head of the Department of Sanskrit, St. Stephen’s College,
Delhi)

‘Dharmaśāstra’ is a Sanskrit term meaning the sastra or discipline that deals with dharma i.e.
social, religious and legal obligations. Dharmaśāstra contains and prescribes norms and
principles pertaining to an individual’s duties in relation to oneself, one's family, one's
community, the state and even divine powers.Dharmaśāstra has three parts: Ācāra,
vyavahāra, andPrāyaścitta. These Sanskrit can be translated as, right conduct, law and
litigation and atonement, respectively.

Vyavahāra as Law :

The vyavahārasectionof Dharmaśāstra deals, specially, with legal institutions, legal theory,
substantive and procedural laws. Vyavahāra as ‘law’ constitutes the set of rules for settling
disputes under the overall supervision of the state (the king). Rules of vyavahara, taken
almost wholly from the large corpus of smritis, may not flow directly from any political
authority, they are nonetheless, to be interpreted and enforced through the agency of the state.
In matters of vyavahara the state is given overriding authority over other institutions.

Earlier smriti writers like Manu and Yajnavalkya treated Vyavahara as an organ of dharma.
However, Medhatithi, an eight century commentator on Manu Smriti, distinguished
vyavahara from Dharma. In his discussion on verse 2 of Chapter VIII of the Manu Smriti, he
established vyavahara as an independent shastra or discipline with its own prameyasi.e
subjects of study and pramanas i.e. proofs and causal train. It relies more on Nyaya or
Anumana i.e. reason based on practical experiences to interpret the text. At the same time
vyavhara keeps coming back to Dharma as its moral and spiritual basis. This develops into a
unique system which embraces dynamism while remaining rooted in its moral and spiritual
core.
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Vyavahara Literature:

Principal texts pertaining to vyavahara are dharma sūtras, smṛtis, commentaries and digests.
Kautilya’s Artha shastra (third century BCE ?) has also contributed significantly to the
growth of vyavahara. This is a huge corpus spanning a period of nearly three thousand years.

Going by conjectures, the earliest available texts on law, the DharmaSūtras, were written
around 500 to 200 BCE. Among these, the Dharma sutras ascribed to Apastamba, Gautama
and Vishnu have more organized material on law.

Kautiya’s Artha shastra (300 BCE ?) has devoted one full section to legal metters.

The Metrical smṛitis are believed to have been composed between 200 BCE to 500 CE.There
are about 200 Smritis available of which Manu, Yājñavalkya, Nārada, Kātyāyana, and
Brihaspati, are the important ones as they are cited the most by later authors. Manu smriti, the
earliest of the available smritis, in its eighth chapter shows a very mature and comprehensive
system of laws. Therefore, it is a significant document for study of the Indian legal system.

There is an assumed sequence among the texts of Dharmaśāstra, for instance, between Manu
and Yājñavalkya. The latter constantly refers to Manu, departs from Manu, agrees with
Manu, mentioning his name. Therefore, this is a good reason to believe that Yājñavalkya
existed and wrote afterManu. However, there are others authors whose period cannot be
determined even by way of reliable conjectures.

Smritis represent many different legal traditions from different times and different parts of
India. They represent also the constantly evolving and changing contours of laws under the
overall larger shruti-smriti umbrella. Not many of them present the whole picture of the law,
often dealing with only with some particular aspects. Therefore, they differ significantly on
several issues. It is left to the commentators and later digest writers to iron out those
differences and present a more coherent system of law.

Major smritis had been composed by 500 CE(?) . Commentaries (Bhāṣyas) on existing
smritis followed. The major commentaries,Bhāṣyas, were written during sixth and tenth
centuriesAmong these Medhatithi’s commentary on Manu Smriti and Vijnaneshwara’s
commentary on Yajnavalkya smriti stand out for their detailed exposition.
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Then came the digests (Nibandha) i.e. compilations of law primarily commissioned by local
rulers. Digests i.e. Nibandhas, continued to be written during a more extended period. We
have two very interesting digests written during much recent period. The Vivadarnava Setu,1
popularly called ‘Halhed's Gentoo Code’ (Code of Law or the bridge over the ocean of
disputes) was commissioned by British East India Company at the insistence of Governor-
General Warren Hastings, in the late eighteenth century. A decade later, another digest,
Vivadabhangarnava2, also known as, ‘the ocean of dispute settlements’ was written by a
committee commissioned by East India Company, at the request of the great Indologist, Sir
William Jones.

Commentators and authors of digests have made a unique contribution to the growth of law
in India. First, they created viable and coherent systems out of the many and often contrary
smriti rules. Two, they introduced remarkable techniques of interpretation to achieve this
result. Three, the commentators, particularly, complemented their original texts to make them
more complete by borrowing materials from other smritis. Four, digests, being mostly
commissioned by local chieftains also reflect regional variations in laws to suit local
exigencies. Five, both commentators and digest writers sometimes go into many theoretical
aspects of law and help us to better understand the philosophy behind various substantive and
procedural laws.

Three Parts of Vyavahara

Vyavahāra has three aspects. First, substantive laws or Vivadapadas, which discuss matters
that can be raised in a court of law. There is a clear understanding of actionable issues, what
is right, and what is wrong and what matter can be raised and litigated before a court of law. 3
A large part of Dharmaśāstra rules are concerned with vivada padas.

Second part is called ‘Vyavahāramatrika’, or rules of procedure to be followed in a court of

law. These also cover laws of evidence.

Third and the most essential part of the Hindu legal system is a very detailed and robust
discussion on the philosophy of vyavahara. It contains the fundamental norms and values
underlying the legal system or the fundamental norms on the basis of which the validity of
any rules, law or laws was to be determined. It constitutes the core of the legal system and
judicial process. This part of vyavahāra originated from a more comprehensive understanding
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of the idea of human life within Bhartiya culture. It has more to do with the socio-cultural
values of people. However, the philosophy behind the laws and the law as such are not
always available in Vyavahāra text. Much of this is to be inferred, constructed and
reconstructed based on available rules and practices.

Vivada Padas - There have been, traditionally eighteen (18) titles of disputes called Vivada
Pada or Vyavahāra Pada.4 But additions and subtractions, to this number have been made
through the time. These titles can be arranged and classified, under more contemporary and
intelligible headings.

• Mutual conduct of men and women is put under StripumDharma ;

• Family laws are covered under marriage and maintenance(Vivaha), partition and
inheritance (dayabhaga);
• Community laws covering the conduct of persons belongs to various social
institutions such as village, caste, and traders’ guilds, etc. are discussed under samaya
– anatikrama;
• Laws of debts and deposits are found in the Rinadana and Nikshepasections;
• Laws about employer-employee relationships, service conditions, wages and other
liabilities of employers and employees are found under several vivada padas –
abhyupetya – ashushrusha, vetana- adana, swami -pala-vivada;
• Laws of trade and commerce are discussed in sections on kraya–vikraya - anushaya,
and fraudulent sale by a non-owner ) (a-swami- vikraya) ;
• Laws of Business - joint commercial undertakings i.e. partnerships is discussed in
sambhuyasamutthanam);
• Laws of boundary and land disputes sīmā-vivāda ;
• Laws of betting andgambling are found in dyuta – samahvaya;

Criminal laws are categorised under four categories:

• Verbal and Physical aggression, including using abusive languages or simple and
grievous injuries. (Pāruṣya)
• Theft - includes adulteration, sale of fake goods, making counterfeit coins (Steya)
• Forced Actions -Robbery, kidnapping, murder, destruction of property (sahasa)
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• Crimes against women - including inappropriate behaviour, inappropriate touch,

molestation, and rape (Strīsaṃgrahaṇa)

Vyavahra Matrika5 - the code of procedure shows a fairly advanced level of development. It
provides for constitution of courts, qualifications of judges, appointment of various court
officials and their duties.6Matrika contains detailed rules for drafting of petitions, replies,
rejoinders, summoning of parties and witnesses, rules of evidence, qualifications of
witnesses, documentary evidence, and rules of adverse possession.7Vyavahara texts also talk
of divine evidence in the form of oaths and ordeals. It needs to be mentioned that while
earlier smritis did mention some very gory kinds of ordeals, later authors reduced their
goriness and even discounted the utility of divine evidence. Matrika sections also contain
rules for writing of judgments, review, and appeal.

Vyavahara Jurisprudence

Comparing ancient and medieval Hindu law with contemporary Indian law, one might argue
that the vyavahāra system lacked in many ways.But that is well understood. Society and
economy have become more complex now and so has the law. With its emphasis on caste (or
varna) as a factor for determining culpability and the quantum of punishment, the Vyavahāra
system falls, miserably short of the contemporary values of democracy, equality and liberty.

However, certain features of Vyavahara need to be highlighted.

• it is quite mature and detailed in its treatment of all aspects of law;

• it has an unbroken tradition of close to three thousand years;
• while staying close to the shastra tradition, it exhibits great flexibility;
• it has not shied away from introducing far reaching changes in many laws, for
instance in the laws regarding women’s right to property;
• it has given precedence to logic and practical needs over rigid adherence to the letter
of the law or even tradition;
• it has encouraged vigorous debates to arrive at rulings (vyavastha) on various aspects
of law;
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An important aspect to be considered while evaluating the Bhartiya Legal tradition is that it
sprouts from the genius of the land and is heavily inspired by the philosophy of life and world
that permeates Indian culture.Vyavahara, as a part of Dharma, seeks to strengthen social
order, even while it introduces several changes in it. It is designed to enable all to obtain
material advancement (dharma, artha and kama) and ultimately liberation i.e. moksha from
the cycle of life and death.

The most fundamental principle at the base of all vyavahāraśāstra is maintaining peace and
resolving conflicts. There is an awareness of the need to resolve conflicts and allow people to
live happily without of fear and pain. The smritis realised the importance of protecting the
weak. For example, Manusmritisays the king should enforce dharma (law) because, if the
state does not protect the weak, the strong will roast the weak on skewers.8

A perusal of the texts written over a longer period also shows a constant interaction and give
and take between law and society. Vyavahara recognises that too much intrusion by the state
in people's lives is neither welcome nor possible nor is it possible to resolve all disputes
without the punitive power of the state. Hence, families, Villages, traders’ guilds, and other
social organisations are allowed to settle their disputes internally. There are, however,
chances of miscarriage of justice. To prevent such possibilities of miscarriage of justice, at
the local level, all social organisations, that are given the authority to settle disputes between
their members, are also sought to be brought under the king's supervision.9

Three very important elements of vyavahara were Desh (place), Kala (time) and Patra
(person or individual). All rules are supposed to be understood and interpreted in the context
of Desh, Kala and Patra. Dharmaśāstra agrees that there can be different rules for different
people at different times and locations and also for different people within the same location
and time. Thus, not all laws could be universally applicable. These principles leave sufficient
scope for regional variations within and under the larger Dharmaśāstra umbrella. One famous
example of the application of this principle, in medieval texts, is that people, in North India,
were not permitted to marry their cousins whereas the practice was prevalent in the south.
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Matul Vivah, i.e. marriage with the maternal uncle, was valid among some communities in
the south, but that was not allowed for other communities even in that region.

Vyavahara believes that socio-economic - conditions in the society are ever changing and
hence law must have the flexibility to respond to changing situations. This flexibility is
inbuilt into vyavahara because as mentioned, different smritis laid down very different laws.
This allowed commentators and digest writers ample opportunity to choose one rule over
another from a large reservoir or to modify and reinterpret laws from one source with
reference to other smritis.

Vyavahara upholds the majesty of dharma and belives that laws and the delivery of justice
must itself be fair and just. Therefore, it prescribes several qualifications for judges. They
should be free from all biases for or against anyone. They should not act arbitrarily. They
must be very knowledgeable and must rely on the shastras and on the advice of experts in
various shastras. They must be free from anger, greed and fear.
Bhartiya legal tradition is based on the principle that vyavahara i.e. law must protect the weak
and promote the good of all . Therefore, texts constantly endevour to self - correct laws which
turn out to be detrimental to the interests of the community at large. It is with this spirit that
from the rule of primo geniture, vyavaharashfted to the rule of equal distribution of
inheritance among all heirs or gave women the right to inherit. People’s changing
perceptions, their likes and dislikes play a significant role in the evolution of vyavahara laws.
It is due to this that earlier sanction to Niyoga was withdrawn. Thus, vyavhara as law has
been a dynamic system and was able to keep itself alive and relevant for several millennia.
 81

Chanakya’s Concept of State and Law

[First Lecture]

Prof. (Dr.) Jose P. Verghese

General Introduction

Jurisprudence is a concept of western origin, and for them it means knowledge of

law, or the philosophical basis for any particular legal system. Etymologically the term
comes from a Latin term ‘Jus’ which not only means ‘law’ but also, ‘right’ and
‘obligations.’ The closest equivalence to ‘Jus’ in Latin, could be ‘Adhikar’ in Sanskrit,
coming from the root, ‘adhikre’ which is a quality that is attached to the individual holder
and includes all that are attached to an individual, such as ‘right,’ ‘obligation’ or ‘power’
that would govern his conduct or behavior in a given society.

When it comes to the Indian scene, the basic concepts one must look for are the
concepts of Satya, Rta, and Dharma. These were best expressed by Sage Aghamarshana,
in Mandala 10, Hymn 1901 of Rg-veda, in terms of Tapas (the Cosmic Fervour), Satya
(the Truth, the Cosmic Reality), and Rta (the Cosmic Order). According to him, it is from
Tapas that arose (adhyajata) Satya and Rta.2 The sage asserts that Tapas, the Cosmic
Fervour, was the creative principle from which the Cosmic Order (Rita) and Truth (Satya)
were born. Satya, the truth, represents the entire reality, which was created from non-
existence; it is reality that is existence. ‘Sat’ etymologically means ‘the existence’ or ‘that
which is.’

Rta, the Cosmic Order, on the other hand, denote the principles that govern that
reality, the principles that would govern the entire universe from time it began to manifest
itself; it is the expression or Order that operates within the realm of Satya. Rta is the
universal and cosmic principle that hold together the Satya that exist; Rta is, therefore,
that which goes forth in a natural or orderly manner. It is what sustains thye entire nature,
and the principles and ideals that govern reality or existence. Rta enables the natural
Order to continue to exist without break; it ensures the proper functioning of Nature and

1
This is the last hymn of the entire Rg-veda.
2
RV. (10.190.1), “Rtam cha Satyam cha abhiddhaat tapaso adhyajata…”
 82

provides for humans through rain, plants, light, fire, arable land, food, and following the
self-sustaining cycle of Nature. Thus, Rta can be considered to be the natural and cosmic
laws of existence, the Laws of Nature; and it is the principle that underlies all that
regulates. 3

‘It is Rta that causes the sun (our solar system) to revolve the Milky Way, the earth
to revolve around the sun, the seasons to cycle through year after year and so
on. Rta is the bond between the 5 great states: Agni (Energy), Vayu (Wind/Gas),
Apah (Water/Liquid), Prithvi (Earth/Solid) and Akasha (Space). The interaction
of these states is the world we experience and can observe, their relationships with
each other is Rta.’4

It was based on Rigveda that law of divine wisdom was invoked, in which all
things in heaven and on earth are governed. The expression chosen for the Universal
Order and law, was ‘Rta’. The expression ‘Rta’ also came to mean the fountain of justice
to be followed by men. One of the prayers in Rigveda shows: ‘O Indra, lead us one path
or ‘Rta’, on the right path.’5 This was considered as natural law or law of reason; the
unwritten law. Vedic philosophy, establishing the ‘cosmic order’ was conceived by the
sages, known as the Brahmarshies or the Kavis who after meditating in their hearts
discovered the truth (Rta) that sustains itself, without requiring any dependence on
matters of divine or supernatural; this Order (Rta) is, perfection in its fullness.
Brihadarnyaka Upanishad declares: “That is perfect, this is perfect. The perfect proceeds
from the perfect. Even if perfect is taken away out of the perfect, what remains is also
perfect.”

The Nature is often personified, and by means of shabda, wherefrom the

Universal Order is perceived, especially its rhythmic movement, and the same is
described as Rta. The term means a sort of ‘rhythm’ perceivable in the cosmos, but
originally meant ‘the cosmic order’. Hiriyanna summarizes the concept in the following
manner: ‘Rta originally meant “cosmic order,” the maintenance of which is the purpose
of all gods; there is order in the universe because its control is in righteous hands. Gods
are the ‘real trustees’ or ‘guardians of Rta’.6

3
Adapted from Mukunda Raghavan, holds Juris Doctorate in Law from Boston University and is a free-
lance thinker, who had contributed to ‘Meru Media’ 4 years ago, and made available on the internet, and
taken on 22.12.2022.
4
Ibid, from Mukunda
5
R.V. (10.133.6).
6
Hirrianna , Op. Cit. (1948), p.12.
 83

In the positive sense, Rta refers to the Universal Order. That is the only truth
(Satya), and that is what sustains everything of the Universe. The opposite of it, is ‘an-
rita’ which denotes destruction. As such everything in the Universe has an inbuilt
quality, not to cause any destruction (an-rita), rather, everything continues to exist in
conformity with the perceived universal Order.7

The orderliness in the nature which Rigveda calls the ‘Rta’, the Universal Order,
seems to have made the sages to visualize that it is this orderliness that controls the
seasons, the day and night, the dawn and sunset, countable days, weeks, months and
years., in short the nature’s law.

Where Rta is the principles of Cosmic Order, it is Dharma that is the application
or the understanding of Rta in the universe. Dharma comes from the root “dhr” which
means ‘upholding, or ‘supporting’ and Dharma means that which upholds or
supports. Dharma is what upholds both Rta and Satya in the world of existence. Where
Satya is the foundation, Rta the abstract and objective principles, Dharma is Rta in actual
action and understanding of the world. Dharma is purpose, laws, morality, righteousness,
the nature of a thing and so on. Whereas Rta is immutable and clear, Dharma is mutable
and can be difficult to grasp. Where Rta might be the precept that one must adhere to
truth, Dharma is how must one adhere to truth, hence the dictum, ‘Satye stitho dharmah.’

Prakriti

According to Kautilya, Prakriti briefly stated means the Ruler and his kingdom
(Raja rajyamiti prakriti-samkshepa:8. He elaborates this concept of prakrti in chapter I
of Part VI of the Sastra. Etymologically, the term ‘Pra-kriti’ means ‘that which is highly
useful to each other.’ It seems that the term gets such a meaning from the term ‘Kriti’ --
that which is done or accomplished. Added to this is, perhaps, the fact that the term
contains the esoteric alphabet of Sanskrit, ‘r’ in ‘kriti’. And that relates the concept of
Prakriti to the concept of ‘Rta’, which means the ‘cosmic order’ that sustains itself.
Another way of looking at the term ‘Prakriti’ is by its Pada-vishleshana; in that
‘Prakriti’ would seem as ‘prak-rith-i’ thereby again the term seems to include the

7
Kautilya believed that only such a situation can bring about peace and prosperity in the world. It is
interesting to note that in the phrase, ‘Satyameva jayate, na an-rita’, it is clearly indicated that the
opposite of ‘Satya’ is not ‘A-satya’, rather it is ‘An-rita’, to denote absence of ‘Rta’.
8
K.A. (8.2.1).
 84

esoteric alphabet of Sanskrit, ‘r’ in the term ‘Prakriti’ to give it a meaning that Prakriti
is related to the ‘cosmic order’ (Rta). Thus, the meaning Prakriti is that which is
incredibly useful to each other and sustains itself as part of the cosmic order.
Dandaniti
The most ancient notion that existed in the Indian continent that is considered to
be the closest to understand ‘State’ is Raja-niti and the concept of ‘Law’ is Dandaniti.

This Part is devoted to deal with all about Dandaniti, which according to Sastra
is nothing but the established ‘Rule Order’ as the same is the strongest means in the hands
of the Ruler to maintain a just and humane political order in the given circumstances. It
is to be noted that the tradition of Dandaniti starts from the time of the most revered
Acharyas, namely, Brihaspati and Sukracharya.

It is Dandaniti through which the Ruler protects his subjects with the power of
the sceptre (Danda) and uses them impartially and in proportion to the established guilt
(dosham), equally against everyone, whether it is his own son or his enemy. What the
Ruler actually, does is to conform his subjects to the right conduct, without letting to
commit any transgressions of the established regulations of their conduct. The Acharyas
had declared, as follows; to quote, ‘It is the power of the royal sceptre (danda) that alone
is considered to protect the subjects in this world and beyond, provided the Ruler uses
that power equally over everyone, whether it is his son or his enemy, but only in
proportion to each one’s guilt.’9
According to Brihaspati, the regulators of the behaviour of the subjects, were
four-fold: ‘Dharma-Vyavahara-Charitra-Nripajna.’10 This was also shown as the
declaration of the Acharyas, that these regulators are four-fold; i.e., (1) the obligations
relating to Varnasrama Dharma, (2) the obligations arising out of day-to-day relations
among the subjects, known as Vyavahara’, (3) the obligations arising out of the
customary practices that are prevalent in a given period of time, region, village or place,
or among the four varnas or among the sanghas, known as the Charitra, and (4) the
obligations arising out of the pronouncements of the king, known as the Rajasasana.11
It is also worth noting that when these regulators are applied to the day-to-day instances

9
Vide, K.A. (3.1.42) given in a Sutra form: “Dando hi kevalo lokamparam chemam cha rakshati/
Rajna putre shatrau cha yadhadosham samam dhritah//”
10
Quoted from Kangle, ‘The Kautilya Arthasastra” Part II, Motilal Banarasidass, Delhi (1972), Reprint
(2010). By way of a Note to K.A. (3.1.39) at Pg. 195.
11
Vide, K.A.(3.1.39), “dharmaśca vyavahāraśca caritraṃ rājaśāsanam…” Kangle Op.Cit. Pat I, at Pg.17.
 85

of transgressions,12 they generate income that would add to the treasury, for which
accounting has to be done by the director of records (Akshpatalamadhyakshah).
Acharyas have laid down some more details13 but briefly, as to how to regard
these four-fold regulators, whenever the Ruler applies them to the day-to-day instances
of transgressions. The following are eight principles collected from the existing
traditional knowledge, which are incorporated in the Sastra: (1) The Ruler shall be the
sole expounder of Dharma (dharmapravartaka), whenever it shows any sign of decay,
and it is his duty not to let that happen and protect Varnasrama-dharma; in the light of
these, he shall always show the right path to the subjects. (2) It is the duty of the Ruler to
let the people observe varnasrama-dharma without there being any obstruction; by doing
so the Ruler is assured of fulfilling the observance of his own obligations, known as
Rajadharma. If the Ruler does not protect his people and thereby disturbs the social order,
the wielding of the royal sceptre (danda) is considered of no use. (3) Whenever there
arises a question as to which of the four shall have the priority among the four legs,
Varnasram-dharma, the process of dispute resolution (Vyavahára), the established
custom (Charitra), and Royal Ordinances (Rájasásana), the last one must be preferred to
the next in the reverse order. (4) The basis of Varnasram-dharma is Truth (Satye sthito
dharma), the process of dispute resolution (Vyavahára) depends on evidence (sakshisu),
the established custom (Charitra) depends on the sum-total of what is practiced by the
men in the past, and what the Ruler commands is the Rajasasana. (5) It is the power of
the royal sceptre (danda) alone that would protect the subjects in this world and beyond,
provided the Ruler uses that power equally over everyone, whether his own son or his
enemy, and in proportion to each one’s guilt. (6) The Ruler shall rule in accordance with
the precepts of varnasramadharma, follow the prescribed process of dispute resolution
(Vyavahára), without violating the established customs (charitra), conventions and usage
(samsthá), all of which supplemented by his own reasonable commands; and only then
he can claim success forever. (chaturantám mahím). (7) If there arises any difficulty for
the Ruler to follow whether the principles of the established customs, conventions and
usage (samsthá), or to follow the principles of varnasramadharma, he is free to follow
either the precepts of Sastra or the established customs, conventions and usages
(vyavakarikam). Nevertheless, the principles of varnasramadharma shall guide him in

12
Vide, K.A. (2.7.2), “…..deśagrāmajātikulasaṃghānāṃ dharmavyavahāracaritrasaṃsthānam..”
13
All these are given in a Sutra form, vide K.A. (3.1.38-47).
 86

case of any contradictions, in matters concerning the prosperous living (Artha) of the
subjects. (8) But whenever the Sástra happens to be in conflict with the logical commands
of the Ruler (Dharmanyáya), then his logical reasoning (contained in the Rajasasana)
shall be held to be authoritative; any other prescribed teachings are to be discarded.

All these four-fold regulators are further elaborated and codified in the Sastra,
for the purposes, stated in the Sastra itself. It was stated, what was done was to gather,
as far as possible, all the existing teachings into a compendium, which for centuries had
stood established, at the instance of these ancient Acharyas. Thereafter, wherever
necessary, these teachings were amended, shortened and brought them together in such
a way that it may demonstrated to the world, how to make the best form of a Sastra,
enabling everyone to acquire and maintain the earth for rendering it for a prosperous
living, i.e., by maintaining and nurturing the ‘nature’ (prakriti) for the benefit of the
mankind (prthivya labhe palanopaya). To quote, ‘It is hereby declared that this Sástra
has been prepared as far as possible (yavantharthasastrani) as a compendium of all
existing Sástras, established by the ancient Teachers (purvacharyai: prasthapitahni) by
amending, (prayashstani) shortening and bringing them together (samhritaika) in order
to acquire and maintain the earth for prosperity (prthivya labhe palanopaya).’14
It was further declared that the terms and concepts used in this Sastra have been
fairly established through centuries. The meaning of the words, the doctrines,15 and the
sense that they convey, are clearly settled, without any ambiguity. All these are included
in the Sastra in such a manner that they are easily comprehensible to anyone; and Sastra
has meticulously avoided indulging in any kind of textual elaborations, which may only
help to confuse the subject-matter, and thereby reduce the authoritativeness of the Sastra.
It may also alter the sense and doctrines that have already been established and crystalized
through centuries. Whatever changes and amendments made are necessary only for the
purpose that, even a part of it may not be altered at all. This text can only be applied, in
accordance with the changing time, place and circumstances. In case, any change or
alteration is to be effected to the text, those who attempt to do it must have the same level

14
Vide, K.A., (1.1.1& 15.1.5) “Prithvibhya labhe palane cha yavantyarthhasaarthani purvacharyaih /
Prasthapitani prayashsthani samhrityaikamidamarthhasaastram kritam /1/
15
Note the term ‘tatwartha’; ‘tatwa’ is substance, is ‘doctrine’ or basic element as used in Sankhya
darsana. And ‘artha’ here means ‘the meaning’ or the substance, as used in Artha-sastra and not as
‘economics’. To mean ‘the meaning’ or the substance as economics, could have been imported from the
West, for whom ‘the meaning’ of everything is economic. That seems to be the reason, even when UN was
conceived, observing the then prevalent disorder in the world after the second World War, the predominant
effort was establish a ‘World Economic Order.’
 87

of erudition and scholarship as that of the original Sastra-kar himself. Any reckless
alterations and amendments, without understanding the soul of the Sastra shall by all
means to be avoided. The author is afraid, the above said warning shall apply to
translations of the Sastra as well. The text reads as follows: ‘Let it be known that this
Sastra has been composed by Kautilya in words, the meaning of which has been definitely
settled, with precise words, doctrines and sense (tatwartha-pada-nishchitam), and in a
manner that is easy to grasp and learn (sukhagrahana-vigneyam), free from unnecessary
textual elaborations (vimukta-grantha-vistharam).’16

Again, it has been asserted that there were indeed several errors and discrepancies
among the writers of commentaries on Sástra in the past. Let there be no doubt of any
kind that the present composition shall be treated as the finally established Sutras and
commentary of the Sastra. This assertion was necessary so that no one shall dare to make
any kind of textual elaborations, which only contribute to confuse the subject-matter, and
thereby reduce the authoritativeness of the Sastra, by making unauthorised Tikas or
Bhasyas.17 The text reads as follows: ‘Observing that there are several errors or
discrepancies among the writers of commentaries on Sástra, Vishnugupta himself has
composed these sutras and commentary (bhashyam).’18

Transgression of the Four-fold Obligations and the Theory of Rta-Rna-Danda.

Before discussing what Sastra prescribes in detail about the four-fold regulators
governing the beviour of the subjects, and the transgressions that may occur for the Ruler
to remedy successfully in order to achieve overall prosperity, it is necessary to explain
the concept of R-na-R-ta relationship, and what punishments (Danda) have to follow as
a remedy against the transgressions.

The Acharyas had laid down that it is the duty of every subject to follow all the
obligations prescribed by the Ruler (Rajasasana) issued in furtherance of Raja-niti,
dictated by the established customs (charitra), conventions and usage (samstha), those
arising from the day-to-day transactions, undertaken by the subjects, for a prosperous
living (vyavahara) and the obligations and duties prescribed as Varnasramadharma. All

16
Vide, K.A., (1.1.19) “Sukhagrahanavigneyam tatvarthapadanishchitam kautilyeya kritam sastram
vimuktagranthavistharam”/19/
17
In fact, what Kamandaka did later, as asserted by Kangle, vide, Op. Cit. Part III at Pg. 280, where it was
shown that Kamadaka’s Nitisara was to a large extent responsible for the neglect of Kautilya’s Sastra.
18
Vide, K.A., (15.1.74) “Drashtva vipratipathhim bahudha shastreshu bhashyakaranam /
Swayameva vishnuguptashchakar sutram cha bhashyam cha //74//”
 88

these are ‘prakritya’ to be followed by the subjects. Infraction of any of these obligations
will have adverse effect on Prakriti and it will be visited by the long arm of the ‘Danda’,
destined to rectify them. The infractions that occur due to the transgressions committed
by the subjects, are debt (R-na) incurred on the prakriti itself. The transgressions, namely,
the dosha, atyachar, aparadh or maha-apradh, will be appropriately met with the power
of the ‘Danda’ of the Ruler, by imposing appropriate ‘danda’ (or punishment), in
accordance with the dictates of Raja-niti, as and when the violations of those rules of
obligations occur. R-na (debt), therefore, restores the equilibrium that is likely to be
disturbed, and by suffering the punishments, the erred individual pays back the ‘debt’ he
owed to the society at large, and maintains the universal equilibrium, the R-ta. This in
substance is ‘Danda-niti’.

All the obligations that arise for a Ruler to maintain a just and peaceful social
order are naturally flowing from and are a part of the Universal Order (‘R-ta’). When
those first principles are translated as affecting the ruled, their obligations are perceived
as a ‘debt’ (‘R-na’) to the society. The Ruler is compelled to act for the protection of his
people, when there would be violent and aggressive actions by the wrong doers, then it
is the duty of the Ruler to protect the people and ensure that they conform to all the
obligations prescribed for attaining prosperity. It is also laid down, that the debt (‘R-na’),
that are to be paid back when more serious violations of obligations take place, it would
be treated as or may go against or contribute towards or considered as possible violations
by the Ruler himself, and even as going against the Universal Order (‘R-ta’). Thus,
danadaniti has a direct relation to the Universal Order (‘R-ta’) as well as to the
obligations of the Ruler and of the ruled.
Theory of Obligations: Varnasrama-dharma.

The first of these regulators is Dharma, i.e., all the specific obligations attached
to the four Varnas as well as the four Asramas, usually known as Varnasrama-dharma.
The duties of those belonging to the brahman varna shall be (1) to study; (2) to teach;
(3) to perform sacrifices;(4) to officiate in others' sacrificial performances; and (5) to
give and receive gifts.
 89

Kshatriaya-s belong to the ruling class, and they are in the royal lineage. They
are generally known as the protectors of land and the life of the people. 19 They display
marked preference for nobility and preservation of the royal lineage, which was of prime
concern for Kautilya. Even if the son revolts, he shall not be killed, rather he shall be
exiled.646 If the son is not worthy to be the king, attempts should be made to get him to
father a son20; or else, his daughter should be designated to bear a son to carry on the
royal line.21 If the king could not have a son, he may attempt to do so by allowing his
wife to beget a son from a kinsmen or a princely neighbour22. If a situation arises, that
his only son might be required to be handed over as a hostage, the advice is that instead
of his only son, he may offer himself over as hostage23. It is better to give a daughter as
hostage instead of his only son, since ‘the daughter is not an heir, and is useful only for
others and costs more to the receiver.’651 Kautilya prefers a legitimate son to an
illegitimate son, even if the latter is wiser, ‘because the legitimate son is better able to
command the loyalty of the people.’24 People will naturally obey a high born king even
though he is weak. A man of nobility has a natural capacity to rule. The duties assigned
to them are: (1) to study; (2) to perform sacrifices; (3) to give gifts; (4) to do military
services; and (5) to protect life.

The Vaisyas are known generally as traders and merchants. The duties assigned
to them are: (1) to study; (2) to perform sacrifice; (3) to give gifts; (4) to do Agricultural
activities; (5) to pursue cattle breeding; and (6) to engage in trade.

Sudras as agriculturists, artisans and craftsmen are the backbone of the

productive capacity of the country. Entertainers also belong to this varna.25 New
settlements were mainly inhabited by Sudra agriculturists.26 Even if he had bound
himself and his family, for economic reasons, his children would not lose their status as
Arya.27 A more numerous army of Sudras (or for that matter that of Vasyas) were

19
Vide K.A. (14.3.35). 646 Vide
K.A. (9.3.14).
20
Vide K.A. (1.17.48).
21
Vide K.A. (1.17.49).
22
Vide K.A. (1.17.50).
23
Vide K.A. (1.17.15-31). 651 Vide
K.A. (1.17.16).
24
Vide K.A. (7.17.21,22).
25
Vide, K.A. (1.3.8).
26
Vide K.A. (2.1.2).
27
Vide K.A. (3.13.13). 656 Vide
K.A. (9.2.21).
 90

preferable to a smaller kshatriya army.656 The duties assigned to them under this Rule
are: (1) to serve the twice-born (dvijati); (2) to engage in agriculture; (3) to engage in
cattle-breeding; (4) to do trade (varta); (5) to engage in the profession of artisans; and
(6) also the profession of courtbards (karukusilavakarma).

The four asramas are brahmacharya (a stage until marriage), grihasta (stage of
settling down with a family after marriage), vanaprastha (a forest recluse) and
parivrajaka (a wandering ascetic). Grihasta is the one who settles down with a family
after marriage. His duties shall be: (1) to earn livelihood by his own profession; (2)
marry into families of the same varna; (3) have intercourse with his wedded wife after
her monthly ablution; (4) worship gods, ancestors and guests; and (5) eat only after
taking care of the dependents.

The duties of those belong to the asrama of Brahmacharya is the stage of life of
a student until marriage. His duties are: (1) Learning the scriptures; (2) Tending the
ritual fires; (3) doing ceremonial ablution; (4) living by begging; and (5) residing
devotedly with his teacher even at the risk of his own life, or in the absence of his
teacher, with the teacher's son, or with an elder classmate.

Vanaprastha, is a stage of life in the forest as a recluse. The duties attached to

this stage of life shall be: (1) observance of chastity; (2) sleeping on the bare ground;
(3) wearing matted locks; (4) wearing deer-skin; (5) fire-worship; (6) ceremonial
ablution; (7) worship of gods, ancestors, and guests; and (8) living upon food stuffs
procured from forests.

Parivrajaka is the stage of living as a wandering ascetic. The duties attached to

this stage of life shall be: (1) complete control of the senses; (2) abstaining from all
kinds of work; (3) disowning wealth; (4) keeping away from the society; (5) begging
in different places; (6) dwelling in forests; and (7) maintaining both internal and external
purity.

Apart from that there are a few obligations that are applicable to all, irrespective
of the fact that one belongs to a specific Varna or Asrama. And these are: One, non-
violence to living beings (ahimsa); it literally means, ‘abstaining from killing’ and this
obligation must be understood in a wider sense that ‘abstaining from giving pain to
others in thought, word or deed’ (manasa-vacha-karmana); two, ‘truthfulness’ (satyam);
three, ‘uprightness’ (purity or cleanliness) (shaucham); four, ‘freedom from malice’
 91

(anasuya); it can also mean absence of envy. In fact, it is the absence of one of the vices,
‘mana’ which means, jealousy, or anger excited by jealousy or haughtiness; five,
‘compassion’ (abstain from cruelty or maliciousness) (a-nrshamsyam); six,
‘forgiveness’ (kshama).28 Since they are applicable to all Varnas and Asramas, it must
be remembered that these six obligations are also applicable to sudras as they are
considered to belong to one of the four varnas. Since Dharma as understood is the basic
morality, which is binding on all the subjects, it must be taken to cover all those specific
obligations binding on all, irrespective of whether one belongs to a particular varna or
asrama.

It was declared that ‘as the guardian of all obligations relating to

varnasramadharmas, it is the duty of the king who must re-establish all the obligations
relating to varnasramadharmas, when the subjects show signs of decline (stage of
perishing, nashyatam) from following the established code of such obligations
(sarvadharmanam), initiate to work out strong foundations (dharma-pravarthak), so
that the subjects are made to observe all the obligations (achara-rakshanat), arising
from the four varnas and of the four asramas.’29

There is a tendency to treat the term ‘Dharma’ as ‘the law’ among those trained
in the western jurisprudence, and beginning to learn about the ancient Indian concepts.
The term ‘Dharma’ was always understood as the obligation one has to follow, or the
duties prescribed for the people belonging to different varnas or those living in the four
stages of life. These are directly addressed to the individuals, and are written in the
hearts of the individuals; it is for that reason, it is stipulated that whenever any
controversy arises, those controversies must be resolved primarily on the basis of
Rajasasana, and thereafter on the basis of established customs, and thereafter the rules
prescribed for day-to-day dealings; and only the final resort must be made with
reference to the principles enunciated to the individuals by way of the obligations to be
fulfilled by the individuals.
It is further asserted that ‘Dharma’ (means, varnasrama-dharma) is firmly
established in truth (Satye sthito dharma). As far as Sástra is concerned that must be

28
Vide, K.A. (1.3.13). “Sarveshamahimsa satyam shauchamanasuyaanrishamsyam kshama
cha”/13/

“Chaturvarnasramasyayam lokasyachararakshanath /
29

Nasyatam sarvadharmanam raja dharmapravarthakah” //38//, K.A. (3.1.38).

 92

understood as referring to those obligations arising out of Trayi and pertaining to

varnashrama Dharma only.30 One of the main concerns for such stipulation is to
establish a social order with peace and harmony first among the individuals, based on the
(Trayi) Triple Vedas.31 It is from the Trayi that the individuals can obtain the discernment
about what one has to follow so that he may live with peace and tranquillity and thereby
to establish a social order conducive to the perceived Universal Order (‘R-ta’).

The primary duties of all, irrespective of what varna he belongs, or what stage of
life he lives, are that he shall observe own duty, and that would lead him to Svarga and
to infinite bliss (Anantya). But when they are violated, the world will perish due to the
mixing of castes and duties. For that reason, Kautilya says, the Ruler shall never allow
people to swerve from their duties; for whoever upholds his own duty, ever adhering to
the established customs, and following the rules of varna and the stages of life, will surely
be happy both after death as well as in this life. For, Kautilya declares that the world
would never perish, if the people observed the injunctions of the trayi, rather it will only
prosper.32

The obligations arising out of day-to-day relations Vyavahara

What is described just herein above was about the first of the four regulators,
written in the heart of each individual, as a member of each varna or asrama, or
irrespective of one belongs to any of the varna or asrama. The second regulator
governing the beviour of the subjects, and where the Ruler is required to remedy
successfully all the transgressions that may occur, in order to achieve overall prosperity,
is known as Vyavahara, which is ordinarily governing the inter-personal obligations,
when two or more individuals happened to interact with each other.
These obligations of the people, have specific reference to their behaviour and
they will have some bearing upon the life for a prosperous living, which is the demand
of Prakriti. All those behaviours that impede such progress are treated as transgressions
and are punishable with fine of varying degrees, which is expected to contribute to the
wealth of the Ruler and his efforts to build a sumptuous Treasury. These contain specific

30
See, K.A. (3.1.40).
31
See, K.A. (1.3.4).
“Esha trayidharmaschaturvarnam varnanamanam cha svadharmasthapanadaupakarikah.” /4/ “The
dharma contained in the trayi will be beneficial/useful for the king to establish the respective dharma
applicable to each of the four-fold varnas and asramas”.
32
K.A. 1.3. (14-17).
 93

regulations by which the people are protected from the behavior obnoxious to the
peaceful and prosperous living and for that purpose the Ruler would regulate such
behavior, by removing from them all those elements that may look like the thorns that
would harm the peaceful life of the people. The Ruler would punish them exemplarily,
even by resorting to physical punishments. Nevertheless, the over-all emphasis is on
punishment in the form of fine as that would enrich the Ruler as well as his Treasury.
The meaning of the term, ‘Vyavahara’ must be understood from the Sastra itself:
(1) ‘Whenever there arises a question as to which of the four shall have the priority among
Varnasrama-dharma, the process of dispute resolution (Vyavahára), the established
customs (Charitra), and Royal Ordinances (Rájasásana), the last one must be preferred
to the next in the reverse order;’33 (2) ‘The basis of Varnasrama-dharma is ‘truth’ (Satye
sthito dharma), the process of dispute resolution (Vyavahára) depends on evidence
(sakshisu), the established custom (Charitra) depends on the sum-total of what is
practiced by the men in the past, and what the Ruler commands is the Rajasasana.’34
Thus, this term Vyavahara has close association with the established customs, (charitra),
and conventions and usage (Samstha). And these are to be supplemented by Rajasasana,
applying these Rules to the day-to-day life. But whenever any dispute arises regarding
the application of these regulators, the application of the dictates of Rajasasana would
take precedence over the established customs, conventions and usage, as well as the Rules
of Vyavahara. (3) ‘If there arises any difficulty for the Ruler to follow the principles of
the established customs (charitra), conventions and usage (samsthá), or to follow the
principles of varnasramadharma, then he is required to follow the precepts of this Sastra
or of the established customs, conventions and usages (vyavakarikam); the principles of
Dharma as described just herein above shall guide him in case of any contradictions, in
matters concerning the prosperous living (Artha) of the subjects.’35 Therefore, Vyavahara
in substance, is that which is established through customs, conventions, and usage but
codified by the Sastra, again giving preference to what have been laid down by the
Acharyas. All these are found in the first chapter of Book 3, which deals with
Dharmasthiyam, where these are found in detail, namely what are the regulations
pertaining to transactions (vyavahara) in general, the punishments prescribed in cases of
transgression and other allied discussions. It is to be noted that the process of redressal

33 K.A. (3.1.25).
34 K.A. (3.1.26).
35 K.A. (3.1.30).
 94

prescribed is not a private affair between the parties, i.e., it is not a ‘Lis inter partes’,
rather it is accompanied by an enquiry as to the extent of transgressions of the prescribed
obligations, which the subjects are duty bound to fulfil, and in case they do not, the
punishments are to follow.
These can also be considered as the substantive part of all Vyavahara: (1) About
marriage relations: It begins with the eight forms of marriage and the obligations arising
out of Marriage (Vivaha-dharma:) followed by the Rules regarding the Property of the
woman (Stridhan), the obligations towards the first wife, (Adhivedanikam), the duties of
the present wife (Shushrusha), followed by Rules of Maintenance (Bharma), Cruelty
(Parushyam), Disaffection (Dvesh:) Misconduct (Atichara), and Rules regarding
Prohibition of receiving favours and entering into prohibited transactions (Upahara-
vyavahara-pratishedha:). The other provisions relating to situations like abandoning
matrimonial home (Nishpatana:), going away with another man (Pathyanusaranam),
short absence from home (Hrasva-pravas:) and about long absence from home (Dirgha-
pravas:) etc. follow.36 (2) The Rules on ‘Inheritance’ (Dayakrama:) and on Division of
property among the sons (Putravibhaga:) The details with which he deals with the
subject is amazing indeed and it indicates his deep knowledge of the subject and with his
acquaintance with the ancient past. An important aspect one should keep in mind is his
treatment of Sudra as one of the Aryas but the lowest of the four Varnaṣ. Another
important aspect is, while dealing with the customary practices, he includes the customary
practices among the Sanghas as well. The Rule provides that there shall be no partition
of the father’s property while the father is alive; and the sons get no ownership in such
property if the parents are alive. It is also to be noted that the Ruler will take all the
property except what is required for the maintenance of the legal heirs like the widow and
the other dependents, and also that are required for the last rites. No share is assigned to
a person who has been thrown out of one’s own Varna. This is applicable to those
belonging to Sudra Varna as well. The sons begotten by a Bráhman from a Súdra woman
get one share of the personal property of the Brahman father. A son begotten by a
Brahman from a Sudra woman gets 1/3rd share from the father’s property. The son
begotten by a Bráhman from a Súdra woman is called Nisháda or Párasava; a Kshatriya

36 K.A. (3.2.1-48); (3.3.1-32) and K.A. (3.4.1-42).

 95

from a Súdra woman is known as Ugra; a Vaisya from a Súdra woman is no other than a
Súdra; sons of this sort get 1/3rd share of the property.37

(3) All about the immoveable property (Vastukam) is spread over in chapters 8
to 10 of Part III of the Sastra. These cover house construction (Grihavastukam), sale of
immoveable properties (Vastu-vikraya:), boundary disputes (Sima-vivada:), dispute
about the fields (Kshetravivada:), determination of boundaries (Maryada-sthapanam),
obstructions (Badha-badhikam), the destruction of pasture lands, fields, and roads
(Vivita-kshetra-pathha-himsa:) and non-performance of the customary agreements
(Samayasyanapakarma).38 (4) This is followed by the subject of Repayment of debt
(Rna-danam), which includes recovery of debts and interest chargeable, the witnesses
to give evidence. These are followed by Rules for a variety of transactions which are
deposit, pledge, entrustment, gifts, ownership, sale without ownership, etc. (5) This is
on labour (Dasakarmakarakalpah) covers the subjects on servants pledged for food
(Udara-dasas), servants (karma-kara) engaged for wages (vetanam), labourers
(bhritaka) and group of labourers (Samghabhrita:) employed for wages
(Bhritakadhikara:). The fee payable for sacrificial works (Sambhuya-samuddhanam) to
the Yachakas are also dealt with therein. And (6) is all about the sale and purchase of
goods.
The obligations arising out of the customary practices: Charitra
The obligations arising out of the customary practices that are prevalent in a
given period of time, region, village or place, or among the four varnas or among the
sanghas,39 were known as the Charitra. The Acharyas seems to have defined what
Charitra is; according to them Charitra is ‘the view held commonly by men’
(caritraṃ saṃgrahe puṃsāṃ).40 In some of the sutras, caritra is referred to as
‘samstha’ and Kangle has rightly translated it as ‘settled custom.’41 This is because,
what the Acharyas believed was that the body of customs and practices, which had been
faithfully observed from generation to generation were analysed and arranged under
suitable heads in the early schools of Dandaniti. The differences that occasioned in those
formulations were due to the predilections of individual teachers of the schools. And

37 K.A. (3.5.1-33); (3.6.24) and K.A. (3.7.1.40).

38 K.A. (3.8.1-28); K.A. (3.9.1-38) and K.A. (3.10.1-46).
39
Vide, K.A. (2.7.2), “…..deśagrāmajātikulasaṃghānāṃ dharmavyavahāracaritrasaṃsthānam..”
40
Found in Sutra form in K.A. (3.1.40). It is to be noted that in 43 as well as in 44 in the same context
Charitra is referred to as ‘Samstha’
41
K.A. 3.1.43, 44)
 96

sometimes it was due to regional variations or because of changes necessitated due to

the changed circumstances. Nevertheless, there was some kind of a fundamental unity
found in those formulations.42 It was difficult for the Western commentators to
comprehend these formulations of customs as they were accustomed to a system of
promulgated law by a divine authority. Often, they despised the Indian system as it is
said to have originated from status and not from contract, in accordance with
promulgated law; and Indian system was yet to grow from status to contract the latter
treating as superior system to the former.43
Most of these customs were codified and incorporated in the Sastra, under
various heads as explained in the paras just above, under the caption, ‘The obligations
arising out of day-to-day relations: Vyavahara.’ These were understood as
Samayacharah, conventional practice, or established usage, as they were coming from
Samayah, means convention, conventional usage, an established rule of conduct, a
custom, or usual practice. Sastra recognised some of these customary practices; for
example, it was provided in a Sutra: ‘Those who, with their united efforts, construct
roads or buildings of any kind (setubandha) that are beneficial to the whole country
(desa) and thereby not only they beautify their villages (grama-shobha), but also keep
a watch on them to see whether they are in conformity with the favourable concessions
by the Ruler (3.10.46). In another Sutra, it is provided that to let out the water from the
tanks, etc., to places other the designated ones, or out of turn, is punishable; so too the
persons who recklessly obstruct the flow of water from the tanks, shall also be liable to
pay fine (3.9.38).
Some of the instances of non-observance of these customs and conventions
(samayasyanapakarmah) are given in detail in the Sastra.44 These are applicable to the
respective region (desa) varna (jati), family (kula) or the gana sangha where these
customs and convention are prevalent with respective variations. Some of these may be
explained: (1) Everyone in village shall cooperate in the work of preparation for a public
show and come along with his family. There shall be co-operation in preparing for a
public play or spectacle, and no one shall refuse to give his aid in a work beneficial to
all. (2) The fine levied from a cultivator who comes to a village for work, and does not
work, shall be taken by the village itself; and such a person shall refund not only double

42
Kanle III pg. 225.
43
The author is referring to the opinion of Sir Henry Maine.
44
Vide, K.A. (3.10-45).
 97

the amount of the wages he received promising to work, but also double the value of
food and drink with which he has been provided. If the work is one of sacrificial
performance (prahavaneshu), then also he shall pay double the amount of the wages.
(3) Any person who does not cooperate in the work of preparation for a public show,
shall, together with his family, forfeit his right to enjoy the show (prekshá). (4) If a man
who has not cooperated in preparing for a public play or spectacle is found hearing or
witnessing it under hiding, or if anyone refuses to give his aid in a work beneficial to
all, he shall be compelled to pay double the value of the aid due from him. (5) The order
of any person attempting to do a work beneficial to all shall be obeyed (3.10.35-39). (6)
Disobedience in such a case shall be punished with a fine of 12 panas. If others unitedly
beat or hurt such a person so ordering, each of them shall pay double the amount of the
fine usually levied for such offence. (7) If a Bráhman does not take part in the combined
performance of any sacrifice of his village, he shall not be punished, but may only be
persuaded to do so (3.10.40-45). (8) The Ruler shall show special favours and
appreciation to those who, with joint effort, construct causeway (setu-bandha) on roads
for easy passage, which is beneficial to the whole region.

The Obligations arising out of the Ordinances of the Ruler: Rajasasana.45

The Rajasasana is a factor which warrants a special mention. It is this aspect
that bolsters the immutability of Sastra. The Ruler is left to apply all Rules of Sastra in
the manner they apply to different places, time, and circumstances. Kautilya, after going
through all the existing Sástras and observing all practices in vogue, prescribed in this
Sastra definite rules in detail. The definiteness of the prescribed rules of Rajasasana
need not be doubted at all, and its supremacy shall be thus presumed.

It is the Raja-dharma or the Raja-niti of the monarch to establish a political order

by a regulated administration (karyanushasanena svadharmasthapanam). Sastra has
been rightly codified incorporating all the fundamental principles, custom, conventions,
rules, and regulations, involved in the governance of the Chakravartikshetra, as these
were all evolved through centuries of additions and pruning. Sastra has been composed
after considering, and based on, as many Sástras as were available and established by
Acharyas.46The Ruler has to govern in terms of the Sastra following the norms which are

45
Vide, K.A.(2.10.1-45)
46
K.A. (1.1.1)“…yavantyarthhasarthani purvacharyaih prasthapitani…”
 98

based on varnasrama-dharma, vyavahara, charitra, and Rajasasana; and when any

doubt arises as to which one among them is having binding force over the other, the order
of precedence shall be the last one over the previous.47

One of the important aspects the Acharyas insist is that it is the duty of the writer
to formulate the Sasana in a manner befitting the position of the person addressed to; and
the writer (lékhaka) of a Rajasasana must pay adequate attention to the jati, family
(kulam), social rank (sthan), age, learning (sruta), occupation, property, character (síla),
blood-relationship (yaunánubandha) of the addressee, as well as the place and time of the
composition.48

Next important consideration the Acharyas demand is that these Ordinances are
normally issued for any one of the 13 purposes: They are calumination (nindá),
commendation (prasamsá), inquiry (prchha), narration (ákhyána), request (atharthana),
refusal (pratyakhyan), censure (upálambhah), prohibition (pratishedha), command
(chódaná), conciliation (sántvam), promise of help (abhyavapattih), threat
(abhibartsanam), and persuasion (anunaya).49

Further the Acharyas had exhorted in this matter which is very elaborately dealt
with in verses 38 to 46 of chapter 10 of Book 2 of the Sastra, which are found again in
Sutras. What these verses demand are: There shall be the following forms of Sasana,
namely, First, the Sasana of Declaration (Pragnapana); this includes declarations like,
‘this was what is communicated’, ‘this is the truth of what is communicated,’ or ‘what is
expressed in the presence of the Ruler is excellent’ etc. Second is the Sasana of
Command, (Agna), which in substance is order of the Ruler about the punishment or
favour, normally given to his servants. Third, is the Sasana of restitution (or exchange,
paridana), which are those by which any honour is conferred, or some favour is granted
in times of distress or favours given by way of a gift. Fourth, the Sasana of Remission,
(pariháralékha), which indicates any special remission granted to any Varna, cities,
villages, or region. Fifth is the Sasana of authorisation (nisrishti), which are expressed
when any authority is delegated, or when any particular work is entrusted. Sixth is the
Sasana of information through a messenger, (pravrittilékha), which are issued when any

47
K.A. (3.1.39) “Dharmashcha vyavaharashcha charitram rajasasanam/
Vivadarthashchadushpadah pashchimah purvabadhakah//39//”
48
K.A. (2.10.5), this is in a Sutra form.
49
K.A. (2.10.23-24), these are also in Sutra form.
 99

specific divine happenings occur, or announcing the truth of an incident that occurs in his
kingdom. Seventh is the Sasana by way of Reply, (pratilekh); these are interpretation of
any document presented to the Ruler and his official response to it. And eighth is the
Sasana of general Proclamation (sarvatraga), and these are orders of general application,
such as those pertaining to the safety or comfort of travellers, those affecting the roads,
or the country in general.

Apart from these that are prescribed by the Acharyas, there are a variety of
instructions that are being added by the Sastra on its own. These include the qualifications
of the writer (lékhaka) of the Sasana, who shall be an amatya, acquainted with all
conventions and usage, smart in composition, good in legible writing and capable of
reading and understanding a document (lekhana-vachana-samartha). He must be well
acquainted with the jati, family, social rank, age, learning (sruta), occupation, property,
character (síla), blood-relationship (yaunánubandha) of the addressee, as well as the
place and time of writing. It is his duty to formulate the Sasana in a manner befitting the
position of the person addressed to. He must ensure the quality of a sasana, covering
proper arrangement of subject-matter (arthakrama), relevancy (sambandha),
completeness, sweetness, dignity, and lucidity for the content. And the Sasana-s are
issued for are normally issued for any one of the 13 purposes: They are calumination
(nindá), commendation (prasamsá), inquiry (prchha), narration (ákhyána), request
(atharthana), refusal (pratyakhyan), censure (upálambhah), prohibition (pratishedha),
command (chódaná), conciliation (sántvam), promise of help (abhyavapattih), threat
(abhibartsanam), and persuasion (anunaya).

xxxxxxxxxxxxxxx
 100

POLITICAL IDEAS OF ANCIENT INDIA

Prof. (Dr.) Jose P. Verghese

Vedic Society: Aryans and Dasyus; The Varnas; Vedic Period: Samiti, Sabhas;
Vedic Kings; Emergence of Oligarchies: The Gana-Sanghas; Monarchy in the
Post Vedic Period; Gana-Sanghas in Post Vedic Period; Mahabharata reference to
Gana-Sanghas; Sixth Century B.C.: Gana Sanghas in Panini; Andhaka-Vrishni
Gana-Sanghas; Gana-Sanghas in Buddhist Literature; The Sixteen Janapadas;
The Shakyas; The Lichchavis; The Rules of Procedure followed by the Gana-
Sanghas; Monarchies in the Sixth Century B.C.; Contributions from Buddhist and
Jaina Traditions; Persians and Greek in India; Rise of Magadha as an Empire.

Introduction:

In the previous chapter on constitutionalism, and an enquiry as to what

extent it was at work during the colonial rule have been dealt. The present chapter
proposes to look into whether there were any factors that can be traced to relate to
the origins of Indian constitutionalism, and whether there existed any traits or
elements that could be pointed out as the rudiments of it in the ancient history.1

The author would like to start with the work of Sh. K.P. Jayaswal, who has
ably discussed some relevant topics, such as, the Sovereign Assembly of the Vedic
times, the Hindu Republics from 1000 B.C., Hindu Kingship from Vedic times,
the Janapada and the Paura from 600 B.C., the Council of Ministers under Hindu
Monarchy from 700 B.C., Taxation from 1000 B.C., and Hindu Imperial Systems
since 1000 B.C…etc.2

Kautilya refers to 18 or 19 authorities, and that goes to indicate that politics

have been studied for centuries before his time. The literature on Hindu Politics
may be dated as far back as 650 B.C., which is pre-Budhist, as they recognize

1
For this chapter, the author is heavily depending upon the works of two authors mainly, one, that of Sh.
K.P. Jayaswal, and his work entitled ‘Hindu Polity, A Constitutional History of India in Hindu Times”,
Eastern Book House, Pataliputra Path, Rajendra Nagar, Patna, Bihar, 1988 (1924) and two, that of Ghoshal,
U.N – ‘A History of Indian Political Theories’, 1886, Oxford University Press, 1959.
2
Id., at Pg.3.
 101

Artha, that is, Artha-Sastra, as chief science for the guidance of successful Rulers.
Citing the authority of Haradatta, Jayaswal states that the Artha-Sastra literature
had existed before the earliest DharmaSutras were compiled.3 It is worth noting
that both Artha-Sastra as well as Dharma-Sastra are considered as Vedas, by
Kautilya, and both as components of Itihasa-Veda.4

Originally the treatises on political theories were called ‘Dandaniti’’, a

nomenclature that one finds find first adopted by Ushanas, while the term Artha-
Sastra was first used by Brihaspati. The title Danda-Niti is ascribed to Prajapati,
in Mahabharata, where it is sometimes called Raja-Sastra, so as to mean the ‘a
complete Code of conduct for the Rulers’ and Raja-Dharma to mean the
‘Obligations of the Rulers’. Later the terms Niti (‘Rule’ or ‘Principles’) and Naya
(‘Policy’ or ‘Principles’) seems to have superseded the old words Artha and
Danda. Subsequently, the work from Sukra began to be known as Sukra-Niti-Sara
and that of Bihaspati as Brihaspati-Sutra5, one of the Artha-Sastra literature, now
available in Sutras.6 The original works of these two writers which are now lost
were known as ‘Baharspatya Artha-Sastra’ and ‘Ausanasa Artha-Sastra.7

Jayaswal has brought out an important aspect, which was otherwise not
known to the literati. According to him there were many authors whose works were
lost and whose names one had not heard before in connection with political
aspects. One only knows certain fragments from here and there, and that too from
what were written about them who belonged to that group of Artha-Sastra writers.
In the ancient literature it is often uncertain whether a passage comes from a
Dharma-Sastra or from Artha-Sastra source. Since it is found that Dharma-Sastra
authors also had their views on politics, and they generally gave a chapter on

3
Id. Pg.4.
4
K.A. (3.1.5). (‘K.A.’ stands for Kautilya’s Artha-Sastra, and numerals refers to Part, chapter, and verse
respectively.)
5
Brihaspati-Sutra now available is the one edited by F.W. Thomas. Sutras are generally quotations from
any previous literature, and here they are to be considered as political maxims or aphorisms.
6
Jayaswal, Op. Cit. Pgs. 5-7.
7
Id. Pg 11.
 102

political aspects. A quotation from the Dharma-Sastra work may hardly be

distinguishable from an Artha-Sastra opinion. But when one gets a passage on a
point which is exclusively dealt with by the Artha-Sastra writers, it can be
concluded with some degree of certainty that the writer is of an Artha-Sastra
authority, and that the passage came from an Artha-Sastra book.8 Thus considered
from this angle, one can safely conclude that there were about 20 writers on Artha-
Sastra whose names are not to be found at all9.

Vedic Society: Aryans and Dasyus

Aryan migration into India involved cultural interactions, linguistic
changes and defining social status among both the host groups and those
arriving. Rig Veda suggests that the Aryans maintained proximity with other
people inhabiting the area. The linguistic evidence does indicate that the
migrating Indo-Aryans incorporated elements of Dravidian and Munda,
languages known only to Indian subcontinent.10

Aryans were shown as great warriors, militarism and division of labour

were practiced among them; they were engaged in composing hymns of
adoration and devotion and had mastery in the technique of sacrifices and
ceremonies, in their anxiety to know the unknown beyond.

Originally, they were confined to Saraswati area of Afghanistan, later to

sapta sindhu and thereafter to Gangetic plains, all along carrying their language,
rituals, and social customs in order to settle as agro-pastoralists. The geographic
knowledge of the authors of the Rig Vedic hymns were always with reference
to rivers, covering eastern Afghanistan, the Swat valley, Punjab and the
Gangetic watershed, the earlier semi-arid areas more conducive to cattle rearing

8
Id. Pg. 9-10.
9
See Infra what Kautilya has to say at Pg.
10
Thapar Romila, Op. Cit., at Note 7, Pp. 106-7. Also see, S.C. Roy, ‘Munda and their Country’.
 103

than agriculture, indicating that the Aryans were essentially pastoralists, with
practice of some agriculture.11

There is a general agreement that initially there were only two varnas,
Arya-varna and the dasa-varna. Varna referred to not only the difference in
colour, but also to the language, ritual, deities and customs.12 Due to the life-
long struggle for the possession of land and cattle, wars between them were not
uncommon.13 Often the Aryan clans would venture into the dasa settlements in
search of fodder for the cattle and horses, and these raids were reciprocated by
the dasa and panis by incursions into Aryan settlements to lift cattle.14

There is sufficient evidence to show that the Aryans were in constant

combat with dasa-dasyus, who were considered as non-Aryan aborigines. At
one place dasyus15 were contrasted with the Aryans [1.51.8.]16;160 Indra
attacked and slayed the dasyus with his thunderbolt [1.100.18]; at another place
the Aswins were found destroying the dasyus, [1.117.21.]; Indra had crushed
Vritra, the spider-like son of Danu, and conquered the dayus, [2.11.18.]. The
warriors of Aryas were praised as they surpassed their dasyu rivals, [ 2.11.19].
Indra was said to have quickly humbled the dasyus in war, [6.18.3.]; and Agni
is called upon to expel the dasyus from their dwellings, [7.5.6.], indicating the
inroads the Aryans might have made into the dwelling places of the dasyus, the
non-Aryans. Definitely the Aryans were in combat with dasyus, and reference
in Rigveda are indicative of those struggles which the Aryans had won, and
praises are showered upon them and their leaders, because in their efforts they
succeeded in protecting the Arya-varna, (aryam varnam) [3.34.9]

11
Ibid., Pp. 108-111.
12
Ibid., P.112.
13
Basu, Prafullachandra, Indo-Aryan Polity, P.S.King & Son Ltd., London, 1925, pp. 47-54.
14
Thapar Romila, Op.Cit. Pp. 114.
15
Originally Dasyus seems to have had no pejorative connotation, since the suffix ‘-yu’ denoted respect,
as in Athharvaryu, Abhimanyu, Saryu river etc. 160
16
The references are to the verses of Rig-veda.
 104

At another place Indra is shown as destroying the cities of the dasyus

(dasi-purah) [1.103.3.]; purah here is fort or city; at another place one finds
that these were built using iron and metal (ayasi and ayas)[2.20.8.]. The
combined effort of Indra and Agni is said to have overthrown 90 strongholds
(purah) ruled over by dasas (‘dasa-patnih-purah’) [3.12.6.]; Indra is believed
to have demolished the cities of dasas [4.32.10.]. Another passage shows that
the dasas had their own clan organization (dasir-visa) [2.11.4.]; the reference
to ‘vis’ is certainly unrelated to that of Aryan ‘vis’; and ‘visah is also often
translated as ‘praja’ with reference to Aryans. There is no reason to believe that
the same applied to the visahs of the dasa-dasyus as well. This may lead one to
conclude that the non-Aryan dasas were not belonging to any servile class, and
much less to that of the Aryans; since the above references do indicate that many
of the dasyus were highly civilized and lived in cities; not all of them lived in
caves; it is true that some of them were found in caves; and it is believed that
they after war seems to have escaped to safer abode, to save themselves from
destruction or annihilation at the hands of the Aryans; Indra is said to have
located one of the non-Aryan chiefs by name Sambhara dwelling in the
mountains for 40 years. [2.12.11.]
The main reason that depicts the dasyus as uncultured or savage-like
seems to be that they do not have religious practices like that of the Aryans;
they are called a-vrata, those without any vratha or religious practice,[1.51.8.];
and an a-vratha dasyu may be destroyed as a wooden vessel burnt in fire,
[1.175.3.]; declares shame on a-vrata dasyu, [6.14.3.]. They are a-brahmana,
meaning impious or without any devotion [4.16.9.]; they are a-yajyu, with no
practice of sacrifice, or mridhra-vach [7.6.3.]; they are anya-vrata, as they
follow strange rites, they are a-manusham, enemy of men, or a-yajvan, who
does not offer any sacrifice to gods, or adevayu, who does not invoke the
blessings of gods, hence they must be smitten to death, [8.70.11.]; they are
depicted as a-karman, without any religious rites, [10.22.8.]
 105

They are also generally referred to with contempt and despise, are
described as ‘anas anaso dasyn amrinah’, meaning ‘those with nasal voices’,
and difficult for the Aryans to understand, [5.29.10.]. Max Muller seems to
suggest that anasa means nose-less, in contrast to the Aryan’s prominent nose.
They are described as those with black skin (Krishnatwach), [1.130.8.; 9.41.1.]

In short, dasyus were not that uncivilized or aboriginals living in forests

or caves; they lived in cities, had forts built with iron and metals; they lived in
peace in their own vis, dwellings and were generally prosperous, wealthy and
powerful, until for some reason or the other, some of them happened to be at
war with the Aryans. Since no other details are available about them, and the
only source is Rigveda, the knowledge about them must be inferred from the
verses of Rigveda, written always to praise the Aryan warriors and their chiefs,
the details of which are given, only when they won the war and not otherwise.
Therefore, the descriptions of the non-Aryans must be treated as one sided and
incomplete, as the reference to Dasa-dasyus in Rigveda is not a detailed one.17

Even though Dasa-dasyus were ordinarily referred to as non-Aryans, they

were found to be functioning within the Aryan fold, as servants. Perhaps the
dasas who were originally non-Aryans, once defeated in war, were either slain
or subjugated into the Aryan service for menial jobs. A worshipper in Rgveda,
alludes to diligent service from dasas [7.86.7.]. The possession of dasas is
compared to that of numerous cattle, [10.62.10]. In one of the passages, the
deity is asked to give among other things, the troops of dasas, obviously the
reference being after defeating them in war [1.92.8].

There were expressions of contempt, hatred, and hostility towards Dasyus,

prayer for their destruction and use of weapon against them. They were
described as wily and impious; prayer to destroy their wealth (abundant in
references). They were mostly aborigines, but not savages; there were stringent
prohibitions against inter-dining and inter marriage relations; yet racial mixture

17
Basu, Op. Cit. at Note 36, at pp. 47-54.
 106

did take place; frequent wars with Aryans were also mentioned. Even beyond
the pale of Dasyus, there still existed large aboriginal tribes or groups.18

The Varnas

‘According to recognized version, in the earliest society represented by

the bulk of Rigveda, these probably belonged to different classes and
professions, but none, not even the priestly and warrior classes, were hereditary;
the warriors were drawn from the people at large, and any person with requisite
qualifications could officiate as priest.’19

As mentioned above, initially there were only two varnas: Arya and Dasa
(Dasyu). The dasyus, as conquered population, were incorporated into the
Aryan society, but as ‘sudras; nevertheless, in practice, a Brahmana could still
take a sudra wife, but not vice versa.20 There is a marked transition from Rig-
vedic division of varnas into ‘arya varna’ and ‘dasa varna’, to the later vedic
tradition which recognizes four varnas, brahma-kshatra-vaishya-sudra21. ‘It
was in Satpatha Brahmana that the sudra was hit hardest with invidious
distinctions.’22 ‘The Vasistha Dharmasutra (XVIII.1) tells us that the offspring
of a sudra male and brahmana female becomes a chandala, ie., an out caste.’23

Definitely ‘it is the period of Sutras that witnessed the gradual

deterioration of the position of the sudras; this process can be traced, step by
step from three broadly distinguishable chronological strata in the Sutras,
namely, (1) the Srauta-sutras, (2) the Grihya-sutras, and (3) the Dharma-

18
Ibid., P. 55f.
19
Majumdar R.C., Ancient India, 1927, (8th edition, 1977) Reprint Motilal Banarasidass Publishers Private
Limited, Delhi, 2007, at Note, 27, at p. 454.
20
R.V. 10.109; A.V. 5.17.
21
Bandyopadhyay, Narayan Chandra, Hindu Polity and Political Theories, Printed at Printwell Publishers,
Jaipur, 1989; at Note 25, at p.122.
22
Majumdar, Op. Cit., at Note 27, at p. 454.
23
Ibid at p. 515.
 107

sutras.’24 During this era the glaring social evil known as ‘untouchability’ also
began to be in practice.25

In Purush-sukta of Rigveda, the terms, ‘brahmana’, ‘rajanya’, ‘vaisya’

and ‘sudra’ were mentioned.26 Some of these verses are quoted below:

“2. Purusha is the entire visible world; he is also the Lord of

immortality; he is food for all living beings.”

“3. …….all beings are one-fourth of him; his other three fourths
abides in heaven.”
“4. “Three-fourth of Purusha ascended (into heaven), the other
fourth that remained in this world proceeds repeatedly, and
diversified in different forms, went to all animate and inanimate
creation.”
x x x
“10. From this was born horses, cows, goats, sheep and all animals
that are with two rows of teeth.”
“11. When they immolated Purusha, into many portions did they
divide him? What was his mouth called what his arms, what his
thighs, what were his feet called?”

“12. His mouth became the brahmana, his arms became the
rajanya, his thighs became the vaisya; the sudra was born from his
feet.”
“13. The moon was born from his mind; the sun was born from his
eyes; Indra and Agni were born from his mouth; Vayu from his
breath.”
“14. From his naval came the firmament, from his head the heaven
was produced, the earth from his feet, the quarters of space from
his ear, so they constituted the world.”
Dasa as a term in Rig-veda meant those who belong to other cultures.
Later on it was used to mean one who laboured for others. Still later this
function was assigned to sudras, who provided labour in occupations ranging

24
Ibid at p. 513.
25
Ibid at p. 456.
26
R.V. 10.90.1-16., and in Atharva-veda, 1.9.3.; 10.6.31.
 108

from agrarian to craft specialization, and still later to less attractive, even menial
labour.27

But there was an interim period where the dasas who belonged to non-
aryan cultures were assimilated into Aryan fold, during which time they were
being called sudra, but still part of the varna system belonging to arya. During
this period, a sudra who was an arya, could work as a dasa, which meant
labourer or even udaradasas, (mortgaged to work as a servant to liquidate a
debt). They could still continue to be regarded as arya, and for that matter even
a Brahman could become an udara-dasa during this period. The sudras during
that period were agriculturists, and even they were recruited as members of the
army. Some of the chiefs of these dasa clans or sudra clans were kings, and the
first ever Emperor in India was said to be a sudra (of Nanda dynasty)

Similarly, in the early period, there was no mention of ‘jati’, while during
the later period ‘jati’ meant the ‘caste’ to which a low status (non-dvija) person
belonged, and carried all kinds of disabilities.28 However, during the
intermediate period, mentioned above, ‘jati’ was ‘the caste’ to which any of the
arya belonged. All the aryas, especially in the rural areas, belonged to one or
the other ‘jati’ which meant ‘a caste’ and were bound by the rules of
obligations, whether customary or conventional or even any established usage
of the respective ‘caste’ or ‘jati’.

Vedic Period: Sabha-Samiti:

Reference to ‘sabha’ and ‘samiti’ are in abundance in the vedic corpus.

The term ‘sabha’ is found in several places in Rig-veda (7.28.6.; 7.4.9.; 8.34.6.).
It is also used for a meeting place for discussion (6.28.6.) or a place for some
social interaction, (7.1.4.). Sabha also denoted a hall of assembly for discussion
and debates (2.24.13). Another important word used is ‘samiti’ for ‘assembly’.

27
Bandhopadhyay, Op. Cit. at Note, 25, at p. 123.
28
Ibid at p. 123-4.
 109

Often it is shown as related to a particular clan or large co-ordination of clans,29

a vis or that of the praja (the subjects). At one place the presence of kings at
samiti is mentioned ( 9.92.6) and at another place in Rig-veda (9.92.6) the king
is shown to have proceeded to the Assembly (samiti).30 ‘Jana’ in Rigveda refers
to people in general and vis to own people, i.e., people belonging to the same
clan. Inter-clan or gotra wars are referred to as ‘viso-yudhmah’.31
In the later vedic period also these ideas are used to express an assembly.
At one place, there is reference to ‘sahba-saha’ which meant an assembly of
priests (10.71.10), and another place the same term is used to denote, the dicing
hall (10.34.6).

In the later vedic period also the presence of kings at samiti is mentioned
(10.97.6). In another reference there is a mention that after the election of the
king, he is asked to come to us, and the allusion is said to be to a samiti,
(10.173,174). Nevertheless a few authorities refer to samiti , as an early forms
of oligarchies.32 (9.92.6; 10.97.6)

“As the kings (rajanah) assemble together in the samiti, the plants
(oshadhi) gather together in him who is called a physician, he who
heals disease and destroys demon.” (10.97.6.)
The last verses of the last book of Rigveda (10.191.2-4.) is important, and
perhaps it sums-up the whole concept of ‘samiti’:

“Meet together, talk together, let your minds apprehend

alike.”
“Common be the prayer of this assembly, common the
acquirement, common the purpose, associated be the desire; I
repeat for you a common prayer, I offer for you with a common
libation.”

29
Basu, Op. Cit. at Note, 36, at pp. 67-8.
30
“Raja na satyah samitiriyan”, Rgveda Samhita, vol. iv Parimal Publications, Varanasi, India (2002).
31
Basu Op. Cit. at Note, 36, pp. 45-47.
32
Ibid., at pp. 68-69.
 110

Common be your intention, common be your hearts; common be

your thoughts, so that there may be a thorough union among
you.”33

These verses are referring to the formation called the ‘samiti’. Reference in
Rig-veda is more established, such as the utterances of an
unsuccessful candidate to the royal throne who wanted to take it over by force:

“Superior am I, and have come here with a force capable of doing

all things. I shall make myself master of your aims, your
resolutions and your Assembly (samiti).” (10.166.4.)
In Atharva-veda it is declared that sabha and samiti are like sisters, and as such
one must conclude that they are distinct bodies or gatherings.

“May the Assembly [sabha] and meeting [samiti], the two

daughters of Prajapathi, concurrently aid me! May he with whom
I shall meet co-operate with me; May I, O ye Fathers, speak
agreeably to those assembled!”

“We know thy name, O Assembly: ‘mirth’ verily is thy name; may
all those that sit assembled in thee utter speech in harmony with
me!”

“Of them that are sitting together I take to myself the power and
the understanding [vijnana]: in this entire gathering [samsad]
render, O Indra, me successful
[bhagin]!”34 (All the squire brackets are added)
In Atharva Veda there is reference to a Brahman who was cursing and
threatening the king who seems to have misappropriated his cow, saying, “The
Assembly (samiti) is not complacent for him (the king who oppresses the
Brahmans); he does not guide his friend according his.” (Av 5.19.) In fact, the

33
“Sam gachhaddhvam sam vadaddhvam sam vo manamsi janatham / Deva bhagam
yaddha purve smajanana upasathe //” [10.191.2]
“Samano mantrah samitih samani samanam manah saha chittamesham/ Samanam
mantramabhi mantraye vah //” [10.191.3]
“Samani va Aakuthih samana hridayani vah /
Samanamasthu vo mano yaddha vah susahasathi // “ [10.191.4]
34
Av. 8.12.1-3 SBE Vol 42. (ed Max Muller.) Oxford University Press, 2000 (1897).
 111

verses that preceded and followed were more severe than where the reference
to samiti was appearing.35

The general opinion seems to be that reference to ‘sabha’ is to an

assembly of villagers, (at one place just as a place of amusement) and ‘samiti’
a central body of tribes which the king attended, (and a place where discussions
take place), while Atharva Veda clearly states that they are ‘sisters’: ‘Let both
the ‘sabha’ and ‘samiti’, the two daughters of Prajapati, accordant, favour me.’
(7.12.1); in verse 3, the term ‘samsad’ (in the sense of gathering) is also used.
In verse 12.1., the term ‘parishad’ is also used to denote assembly. In one place
‘samiti is shown as the place where the kings assemble: “…the kings assemble
together in the samiti…”36

To denote the gathering of the vis, the word sabha is often mentioned,
while sabha is also mentioned as a hall where the game of dice is played for the
purpose of gambling. The references are many to denote a more august
assembly of men often for the purpose of discussion and debate. It is also
interesting to note that the kings did attend such gatherings. The reverence
accorded to these gatherings do play an important aspect both for the king as
well as for the subjects, so that both are at accord with them and respect as well
as look at them with awe, and several prayers are addressed to such bodies.37

At another place, “He moved out toward the tribe. After him moved the
Assembly [sabha] and gathering [samiti], and the army and the strong drink.”
(Square brackets are added).38 In 2.27.1-7, on the other hand, the entire chapter
is devoted to the use of charms for winning in debates against the Asuras.39
Majundar further mentions from what direction the debating party should enter

35
Majundar Op. Cit. at Note, 27, at p.106.
36
R.V. ‘..samagmat rajanah samitaviva’. (10.97.6)
37
Majundar, Op. Cit. at Note, 27, p. 109.
38
Ref. Av. 15.9.1-2,Transl. by Whitney, quoted in Majundar, Op.Cit. at Note 27, at p.114.
39
Muller Max, F. & Bloomfield, M, Sacred Books of the East, Vol. 42, ‘Hymns of the Atharvaveda’,
Motilal Banarasi Das, 2004 (1897) at pp.137-8.
 112

the hall and that they should be wearing some kind of amulet and chewing some
root of a particular plant.40

From the Vedic literature one finds that the life and activities of the race
were expressed through popular assemblies and institutions. Reference to Vidatha
(Council) as a popular institution of Vedic times, is found both in Rig Veda and
Atharva-Veda41 signifying predominantly the religious life. As such it seems to be
an institution that preceded the institutions of Samiti and Sabha.

The term Samiti (sam+iti) means ‘meeting together’, i.e., an assembly. It

was this assembly that elected the kings in the Vedic period. In the prayer-hymns
of both the Atharva-Veda as well as the Rig-Veda,42 there is a prayer for ‘common
Samiti’ and ‘common policy’ (samano mantrah, samitih samanih), ‘common aim’
and ‘common mind’ (samanm vrtha saha chittamesham). According Jayaswal,
mantra means all matters of the state, that were discussed in the Samiti.43 The Ruler
usually attended the Samiti and that is referred to in Rig-Veda, ‘like a true king
going to the Samiti’ (raja na satya samitoriyanah).44 The inference here is that it
was considered to be the king’s duty to attend the Samiti, and if he did not, it would
be considered ‘untrue’. The deliberations in the Samiti were mostly regarding the
affairs of the kingdom with authority and agreeable to those present. One of the
prayers in Atharva-Veda goes like this.

These passages do indicate a free right of discussions “May the enemy not
win the debate….Overcome the debate of those that debate against us, render them
devoid of force! “Overcome thou the debate of him that is hostile to us, O Indra!
Encourage us with thy might! Render me superior in debate;”45 and the anxiety of
a participant to win over the opinion of others.

40
Majundar, Op. Cit at Note 27, at p. 111.

41
R.V., I.60, III.38.5, II.1.4, III.26.6 and A.V.I.13.4; all quoted from Jayaswal, Op. Cit. Pg. 21.
42
R.V. X.191.3; A.V. VI. 64., quoted in Jayaswal, Op. Cit. Pg. 13.
43
Ibid.
44
R.V. IX.92.6, also R.V. X 97.6. All quoted from Jayaswal, Op. Cit. Pg. 13.
45
A.V. II.27. Quoted from Jayaswal, Op. Cit. Pg. 14.
 113

All these indicate that Samiti was not a product of early Vedic period, as
the references to it are found in the later portions of Rig-Veda. At another place in
Atharva-Veda, the Samitis of the whole land are referred to as ‘the assembled
Samitis’ (ye samgrama samitayah); and samgrama means the ‘villages together’.46

Sabha in Atharva Veda is mentioned as a sister of Samiti, and both the

daughters of Prajapati. At [VII.13], it is shown,

“May the Samiti and Sabha, the daughters of Prajapati, concurrently aid
me. May he with whom I shall meet co-operate with me; may I O Ye
Fathers, speak agreeably to those assembled.”
“We know thy name, O Assembly: Narishta verily is thy name. May all
those that sit assembled in thee utter speech in harmony with me.”
“Of them that are sitting together I take to myself the power and the
understanding in this entire gathering, O Indra, render me successful.”47

‘Narishta’ here means ‘a resolution of many’ that cannot be broken or

violated. Thus, what the above text signifies is that ‘all those that sit assembled in
Thee, utter speech in harmony with me’. The discussion that takes place is to be
regarded as free and fair, and the decisions that the Sabha takes are binding on all
and inviolable, indicating that Sabha is almost as important as the Samiti.48

‘Sabha’ which is to be understood as ‘a body of men sitting together and

shining’, and as a younger daughter of Prajapati, one must assume, it holds a
definite authoritative role as an institution, and the members are highly respected.
They are like the Fathers or the Elders of the society, and the head of it, it seems,
was known to be the Sabha-pati.49 Although the other aspects of its functions are
not clear, there is a reference in Rig-Veda describing the friends of one who came
back successful from the Sabha, ‘joyful’ and ‘delighted’, and the man himself as
‘free from blame’.50As one finds in the references from Rig-Veda, the rise of Sabha

46
A.V. XII. 1.56. Quoted from Jayaswal, Op. Cit. Pg. 15.
47
A.V. XII. 1.56. Quoted from Jayaswal, Op. Cit. Pg. 18.
48
Jayaswal, Op. Cit. Pg. 19.
49
Ibid.
50
R.V. X.71.10. Quoted from Jayaswal, Op. Cit. Pg. 20.
 114

in Vedic period seems to be of the latest and it is referred therein in diverse senses,
such as denoting a hall, a house, etc., but definitely this institution had
administrative functions to discharge, to supplement that of the Samiti.51

Vedic Kings
Jayaswal, with the support of Magasthenes, asserts that monarchy was the
normal and the only form of government known. Vedic kings were elected by the
people assembled in the Samiti, and usually the election was unanimous. It is
Samiti that appoints him, and he is asked to hold the kingship. It is expected that
he would not fall from his office and will crush his enemies. Both Rig-Veda as
well as Atharva-Veda contains what is known as the Song of Election:

“Gladly you come among us; remain firmly without faltering; all the people
want you; may you not fall of the Rashtra.
“Here be you firm like the mountain and may you not come down. Be you
firm here like Indra; remain you here and hold the Rashtra.
“ Indra has held it firm on account of the Havi offering; for it Soma as well
as the Brahmanaspati has said the same.
“Firm as heaven, firm as earth, firm as the universe, firm as the mountains,
let this Raja of the people be firm.
“Let the Rashtram be held by you, be made firm by the Raja Varuna, the
God Brihaspati, Indra, and also Agni.
“Vanquish you firmly, without falling, the enemies, and those behaving like
enemies you crush under your feet. All the quarters unanimously honour
you, and for firmness the Samiti here appoints you.”52

The election in the Vedic age appears to be simple in form; nevertheless,

the king is elected by the people, and he is expected to fulfil certain duties towards
the people. In return, he is to enjoy certain privileges, as he accepts his office. It
also indicates that he agreed with his electors. The terms of kingship in the Vedic
age are writ large in these mantras.

51
Jayaswal, Op. Cit. Pg. 21.
52
A.V.VI.87-88. Quoted from Jayaswal, Op. Cit. Pgs 193-194. The same hymn occurs also in R.V. X.173.
 115

In another passage, while exalting the position of the king, the function of
the Vedic King is shown as distribution of the natural wealth, and that does indicate
that one of the chief concerns of the king is the prosperity of the people:

“The people elect you to rulership (rajya), the wide glorious quarters elect
you. Be seated on this high point in the body of the Rashtra and from there
vigorously distribute the natural wealth.”53

“Fix thy mind upon the bestowal of wealth. Then do thou, mighty, distribute
wealth among us.” 54

Yet another function shown in the last verse of Rig-Veda of the Song of Election
quoted above, is to collect taxes from the people, as the sole taker, indicating that
no one else but the King alone is entitled to it. It is worth noting that the king is to
ascend to the raised seat, signifying that the place of the king is the highest point
of the body of the Rashtra.55

“Come thou to the people (vish) for thou has agreed concordant with the
people.”56

It was customary to make the king seated on a throne covered with the skin
of a lion, tiger, or leopard; the symbolism attached to it seems to indicate prowess:

“ Thyself a tiger, do thou upon this tiger-skin stride through great regions.
All the clans (vish) shall wish for thee.”57
And all these go to show that there was a well-defined monarchy in
existence during the Vedic period. It was a creation of the people, attached with
conditions. He accepts the authority of the Samiti that appoints him, to be always
above him.

53
A.V.III.4.2. Quoted from Jayaswal, Op. Cit. Pg. 194.
54
A.V.III.4.3. Quoted from Jayaswal, Op. Cit. Pg. 197.
55
See, Jayaswal, Op. Cit. Pg. 195.
56
A.V.III.4.4. Quoted from Jayaswal, Op. Cit. Pg. 197.
57
A.V.IV.8.4. Quoted from Jayaswal, Op. Cit. Pg. 196.
 116

Emergence of Oligarchies, the Gana Sanghas

A general reading of Indian history gives the reader a general impression
that the whole of the history belongs to the kings, and nothing else. But the pre-
Kautilyan period is conspicuous in the emergence of three kinds of polities -
chiefdoms, confederacies, and establishment of kingdoms. It is often believed
that the latter two confronted with each other for asserting dominance, and at
the same time, both were taking assistance from the first for their successful
expeditions. These confederacies were known as ‘Gana-Sanghas’.

Emergence of gana-sanghas was remarkable in northern and western

region, especially because in such polity, power was defused, satisfaction of the
members of the group was limited, and requirement of administrative or
coercive machinery was minimal. The marked difference in their appearance to
any historian is said to be the existence of an assembly hall, in contrast to a
palace or court, in the case of kingdoms.

But it seems to be a bit difficult to believe that gana-sanghas and

chiefdoms grew up as an alternative to emergence of kingdoms. Perhaps, prior
to the advent of the Aryans, the entire region (may be the entire country for that
matter) had only clan-based chiefdoms to look after their own affairs. The idea
of a king, probably with the idea of ‘divine origin’ attached to that concept, was
of Aryan origin; while in non-Aryan societies, chiefdoms seem to have grown
up into confederacies (ganasanghas being the Indian version of these
confederacies). It is for that reason perhaps that they kept themselves away from
the strict vedic or varna rules, and that they gave birth both to Budhism as well
as Jainism. Buddha grew-up in Kapilavastu, a town of shakya clan, and
Mahavira came from jantrika clan, which was part of Vriji confederacy at
Vaishali. The ideologies and belief system were rooted in Gana-sanghas. It is
for this historical reason that the Brahmanical sources disapproved Gana
sanghas as they did not follow the varna rule, and the Gana-sanghas grew up
opposed to monarchical as well as varna rule. Clan loyalty was strictly adhered
 117

to in Gana-sanghas, while caste loyalty was the focus in the Brahmanical

society.

The term ‘gana-sangha’ or ‘gana-rajya’ refers to those who claim to be

of equal status; ‘sangha’ means ‘assembly’ and ‘rajya’ refers to ‘governance’.
‘Gana’ refers to members of a confederacy clan or a family belonging to a clan.
The governance of the territory is through an assembly of equal members.
Therefore gana-sanghas are known as ‘republics’ or ‘oligarchy’ and markedly
different from kingdoms. These consisted often of a single clan, or confederacy
of clans. That is the reason why some of them were said to belong to sudra
clans, as the vedic population might have regarded them to be so. But all of
them were steadfast in rejecting varna rule or vedic orthodoxy. In any case, they
do not honour the Brahmin, or observe the vedic ritual.

Monarchy in Post-Vedic Period

During this period, the monarchy in Bharat-varsha began to show itself as
a unique system of governance for administration of the country. Unlike the
growth of the system that occurred elsewhere, ancient India developed it with
certain specific characteristics, as is evident from its understanding
etymologically. On the one hand the word ‘Rajan’ has its roots in ‘Rat’ as in
‘Samrat’, and on the other, it developed to include its duty, ‘to please’ (ranj). It is
in this sense that monarchy remained a normal and the only form of known
government from Vedic times. Aitareya Brahmana announces it as ‘firmly
established in mid-land where monarchy held its own’,58 inaugurating a marked
departure from Vedic form of monarchy. ‘Mid-land is the land from Kurukshetra
to Prayaga- the valleys of Jamuna and the Ganges, which became the seat of the
Aryan conquerors and Aryan monarchy. For Aitareya Brahmana, it was ‘the
Samrajya’, with literal meaning, ‘a collection of monarchies’.59 The theory found
therein goes like this: The ‘Devas’, the original worshipers did not have any kings.

58
See, Jayaswal, Op. Cit. Pg. 189-90. Reference here to Aitareya Brahmana is A.B. III pg.93.
59
Id. at pg 190.
 118

In their struggle against the Asuras, they discovered that they were repeatedly
defeated, only because they had no kings, while Asuras had, and that was why they
were successful. So, they agreed to elect a king.

“The Devas and Asuras were fighting….the Asuras defeated the

Devas….The Devas said, ‘It is on account of our having no king that the Asuras
defeat us. Let us elect a king. All consented.”60 According to Jayaswal, the
reference here is to the tribal stage of the Aryans in India and that it is suggestive
of the fact that the institution of kingship is borrowed from the Dravidians.
Whatever be the historical truth of it, and whether it was an improvement upon the
‘contractual monarchy’ found in the Vedic hymns and the Songs of Election, one
thing was clear that kingship was elective, and the king at the time of Coronation,
is made to take an oath that he should rule according to law.61

Coronation became further elaborate, ritualistic and technical during the

age of Brahmana literature, where the Monarch began to control wider areas; the
prominent among them where one finds the details are Aitareya Brahmana and
Satapatha Brahmana. The Rajasuya form of Coronation was the most common
one; sometimes it is supplemented with Sarva-medha (a sacrifice for universal
rule) form to indicate the territorial aspects of the ceremony.62Rajasuya is
performed in three parts, the first part consists of some preliminary sacrifices, the
second, the most important part – Abhishechaniya - consisting of various rites and
formulae, and the third, certain post anointing ceremonies.

The ceremonial vows are universally adopted, and the terms are given in
Aitareya Brahmana in a mantra form:

“Let the Kshatriya be sworn through this Great Coronation of the Indra-
ritual. He is to repeat with faith: Between the night I am born and the night

60
A.B. I.14. Quoted from Jayaswal, Op. Cit. Pg. 190.
61
Id. at pg 190-91.
62
Vide, Jayaswal, Op. Cit. Pg. 199.
 119

I die, whatever good I might have done, my heaven, my life, and my

progeny may I be deprived of , if I oppress (injure) you.”63

It is noteworthy that the text indicates no divine agency, rather it is purely

human, and the content is of contractual in nature. This mantra is always used in
all forms of rule, such as Samrajya, Bhaujya, Svarajya, Vairajya, Parameshtya,
Rajya, Maha-rajya, Adhipatya or Sarva-bhauma, the Monarchy proper. The
mantra is prompted by the officiating priest on behalf of the people.64

The Coronation ceremony, therefore, do indicate that kingship was a human

institution, elected by people, engaged in contractual terms, to be performed with
the co-operation of other functionaries. It is an office of trust, containing a promise
to lead the country to prosperity and growth, and all these aspects are expressed,
and therefore kingship leaves no room for becoming an arbitrary rule.65

Aitareya Brahmana did not treat monarchy a hereditary institution, as there

was no reference in the ceremony to previous consecrations. It looks, hereditary
form was a subsequent development, and the rudiments of the same can be found
in Aitareya Brahmana itself. It is stated that when the lifetime king-elect is
subjected to Coronation, the term, ‘Bhuh’ is used, when it is to refer to two
generations, then the term used is ‘Bhur-Bhuva’ is used, and when it refers to three
or more generations, then the term ‘Bhur-Bhuvasvah’ is used, indicating thereby
that Coronation can be performed at one time for more than one generation.66

Aitareya Brahmana, after enumerating the Sangha group of kingdoms,

places several varieties of monarchical group of kingdoms. (1) Monarchy (Rajya),
(2) Great (High) Monarchy (Maha-rajya), which is large monarchy, larger than its
neighbours, (3) Over-Lorship (Adhipatya), where a dominant monarchy exercised
suzerainty on the kingdoms outside its frontiers, sometimes known as
Chakravartin; and (4) Pan-Country Sovereignty (Sarvabhauma) where a person

63
A.B. VIII.15. Quoted from Jayaswal, Op. Cit. Pg. 210.
64
Id. At Pg. 211. It is to be pointed out here, that it is same mantra that is recited during the ritual of the
Sanghas as well.
65
Vide, Jayaswal, Op. Cit. Pg. 219.
66
A.B. VIII.7-12. Quoted from Jayaswal, Op. Cit. Pg. 220.
 120

desires to become ‘the sole monarch of the land up to its natural frontiers, upto the
sea, over all human beings.’67 The last one would claim the whole area (sarva-
bhumi) within natural boundaries.68
The chief features of monarchy during this period can be summarized as
follows: (1) the kingship was a human institution; (2) it was elective, and the
electorate comprised of the whole People; (3) kingship was a contractual
engagement; (4) the king had to function in co-operation with other officers of the
kingdom; (5) held an office of trust, that contained a promise to lead the country
to prosperity and growth; (6) he could not act arbitrarily; (7) was not above law,
but was subject to it; (8) was mostly territorial.69

Gana-Sanghas in Post-Vedic Period

The general understanding is that monarchy was the only form of rule in
the early Vedic period, but the post-Vedic age witnessed emergence of self-
governing forms of governance. The emergence of this phenomena is well
explained in the scholarly work of historian Romila Thappar.70According to her
the Aryans were originally confined to Saraswati area of Afghanistan, later to
sapta sindhu and thereafter to Gangetic plains, all along carrying their language,
rituals, and social customs in order to settle as agro-pastoralists.71The geographic
knowledge of the authors of the Rig Vedic hymns were always with reference to
rivers, covering eastern Afghanistan, the Swat valley, Punjab and the Gangetic
watershed, the earlier semi-arid areas more conducive to cattle rearing than
agriculture,72 indicating that the Aryans were essentially pastoralists, with practice
of some agriculture. Often the Aryan clans would venture into the dasa settlements
in search of fodder for the cattle and horses. These raids were reciprocated by the
dasa and panis by incursions into Aryan settlements to lift cattle.216 Thus, in the

67
A.B. VIII.15f. Quoted from Jayaswal, Op. Cit. Pg. 360.
68
‘Natural boundaries’ is expressed by Kautilya as Chaturanta an empire up to the four limits. See,
Jayaswal, Op. Cit. Pg. 361f, for further understanding of these groups of monarchy.
69
Taken from Jayaswal, Op. Cit. Pg. 219-220.
70
Vide, Thapar Romila, The Penguin History of Early India, From the Origins to AD 1300. Penguin Books,
New Delhi, 2002. Pgs. 108-114.
71
Id. At Pg 108.
72
Id. At Pg 111.
 121

beginning there were only two varnas, Aryavarna and the dasa-varna.73 The
dominant Aryans depicted dasas often as those with flat nose, or with reference to
language, as those with no mouth.74

Rig Veda, according to Thapar, mentions inter-tribal conflicts; Sudas, the

chief of Bhratha clan, were attacked by a confederacy of ten clans on the banks of
river Ravi, but the former was victorious. The families or clans owned cattle, but
the pastures were common. Clashes and raids were so frequent that they were not
confined to inter Aryan clans, rather they extended also to dasa clans.75

According to her what probably gave rise to gana-sanghas are factors like,
permanent settlement in a particular area, giving rise to geographical identity to a
clan, or a confederacy of clans, subsequently giving concrete shape by claiming
possession of the territory they occupy, and then naming it after the ruling clan. In
order to maintain possession of the area covered, gana-sanghas formed themselves
into a political organization.76

The term ‘gana-sangha’ or ‘gana-rajya’ refers to those who are partners in

the business of governance and are of equal status. While ‘sangha’ means
‘assembly’ (of the ruling class), ‘rajya’ refers to ‘governance’ and ‘Gana’ refers
to members of a confederacy clan or a family belonging to a clan. The governance
of the territory is through an assembly of equal members. Therefore, gana-sanghas
are known as ‘republics’ or ‘oligarchy’ and markedly different from kingdoms.
The members of this confederacy are not elected. They consisted mostly of a single
clan, or confederacy of clans and often that of kshatriya clans; some of them are
of sudra clans as well. But all those who were rejected from the varna system or
vedic orthodoxy, are not taken as members. In any case, they all desist from

73
Id. At Pg. 142. Varna in those days referred to not only the difference in colour, but also to the language,
ritual, deities and customs 218 Id. At Pg. 112.
74
Id. At Pg.114.
75
Id. At Pg. 114. It is interesting to note that the Rig Vedic reference to dasa, dasyu and asura are also
found in Avesta as daha, dahyu and ahura. Vide, Pg. 108.
76
Vide, Thapar Romila, Op. Cit. at Pg. 137. 221 Vide,
Id. At Pgs. 147-48.
 122

honouring the Brahmin; they also do not observe the vedic ritual. They maintain
only two classes, ruling class and the dasa working class. All matters are discussed
and debated by the Assembly (the Sangha); and if a unanimous decision could not
be reached, it was decided by vote.221

As seen above, Dasa as a term in Rig-Veda meant those who belong to other
cultures, while later, it used to mean the one who laboured for others. Some of the
clans were given the status of Arya and others like Puru as asura rakshasa who
are said to belong to dasa ancestry. Just like various local rituals were assimilated
into vedic worship (many examples in Atharvaveda), many of the non-Arya clans
of different culture were also allowed to associate with Vedic rituals (eg. Nishadas)
and they were taken into the existing social hierarchy.77

It appears that in the later Vedic literature such as Aitareya Brahmana78 or

Taittiriya Brahmana, non-kingly forms of governments were found. They were
known as Gana-Sanghas. Gana means ‘numbers’; ganarajya would then mean the
rule of ‘numbers’, ‘the rule by many’. And Sangha was another term for numbers.
Therefore, the Gana-states later on used to be known also as Gana-Sanghas.79

According to Jayaswal, Gana and Kula were the two main divisions of the
Sangha states. Between them there were various technical classes with a variety
of forms of governance; and in all the ceremony of consecration (abhisheka) the
entire population took part.

The seven forms governments noted by him are as follows:

77
Vide, Id. At Pgs. 122-23.
78
Aitareya Brahmana, Aitareya Upanishad, and Aitareya Aranyaka…. Known in the name of Itara, who
was the mother of Mahidasa who is said to be author of these ancient Sanskrit literatures.
79
Vide, Jayaswal, Op. Cit. at Pg.24.
 123

(1) The Bhaujya (of the Bhojas) form of government80 setting out the rules
that govern this gana-Sangha is referred to by the Aitareya Brahmana81. There are
references in the literature referring to Rashtrikas and the Bhojakas as collective
bodies with sovereignty. Bhojas, sometimes in history, is found as a sub-division
of the Yadavas, which was part of the twin republics called the Andhaka-Vrishnis.
According to Aitareya Brahmana the Satvats, which is the ancient name for the
Yadavas, were one of those people who observed the Bhaujya constitution. The
Andhaka-Vrishnis were in the Kutch region (earlier the Kathiavad Agency) of
Western India. Gujarat was one of the most ancient seats of Bhaujya; but it is likely
that Satvats had spread southwards as the Aitareya Brahmana places them also in
the south.82

(2) Svarajya form of government83: According to Aitareya Brahmana this is a

peculiar type of non-kingly rule that prevailed in Western India. Ruler in this type
of governance is called Svarat to mean the ‘Self-ruler’; and he is always the ‘leader
of equals’, elected from among the members of the GanaSangha.84 This form of
government, with a developed set of rules for its governance was prevalent among
the Nichyas and the Apachyas of the Western India. Nichyas were those occupying
the land bordering near the mouth of the Indus and the Apachyas, the region just
above that.

(3) Vairajya form of government85: Aitareya Brahmana describes this form of

government as the ones that has no king at all and it existed among the Janapadas
of the North, ie., ‘by the side of the Himalayas’. All the members of the concerned
Janapada were anointed (abhishika) as kings. Aitareya Brahmana specifically
mentions that this form of rule was prevalent among the Uttara-Madras and Uttara-
Kurus. Madras in general were a marked Gana-Sangha, while Uttara-Madras were

80
Jayaswal calls it the ‘Bhaujya constitution’.
81
Ait. Br., VIII.14, Quoted from Jayaswal, Op. Cit. at Pg.79.
82
Vide, Jayaswal, Op. Cit. at Pg. 80.
83
Jayaswal calls it ‘Svarajya constitution’.
84
Ait. Br., VIII.14, Quoted from Jayaswal, Op. Cit. at Pg.80-91.
85
Jayaswal calls it Vairajya constitution.
 124

a special group and they were noted for prosperity and life of enjoyment.86 The
seat of this group is said to be ‘Sakala’ which is the modern Sialkot.

(4) Rashtrika form of Government87: They are located in the West, but also spread
across Eastern India mostly in Gujarat, next to Saurashtra. 88 They are sometimes
known as Rashtrika-Sapatya meaning the ‘board of leaders’; members of these
boards are elected. They are ordinarily referred to as belonging to the group of
Bhojas and Pettanikas and were all having nonmonarchical form of government.

(5) Pettanika form of Government89: Aitareya Brahmana90 names them ‘Bhoja

pitaram’ which means that this group follows hereditary ruling system though they
are non-kingly like the Bhojas or Rashtrikas, but in a ‘perverted form’.91 They
were mostly found in Western India, but later on seems to have spread to Eastern
part of India also.

(6) Dvairajya form of Government. This was another non-monarchical form of

government; Dvairajya means ‘the rule of two’. Nevertheless, it was a distinct
form of Gana-Sangha rule. It is so peculiar in its functioning that Kautilya refers
to it as those that are prone to rivalry and mutual conflicts leading to destruction.
Theoretically such a form of government is unthinkable and un-workable. Yet
India did have this form of Gana-Sangha Rule, and with success.92

(7) The non-ruling Government: Jayaswal explains that this form of government
is called Arajaka or non-ruler or idealistic constitution. This form was derided by
many writers who could not fathom the ideal of this form of Gana-Sangha. It only

86
Kautilya deals with this form of government (VIII.2) and considered it to be a bad form of government,
vide, Jayaswal, Op. Cit. at Note (18) to Pg.83.
87
Jayaswal calls it ‘Rashtrika constitution’. Vide Jayswal, Op. Cit. at Pgs. 84-85.
88
Su-rashtras are mentioned by Kautilya as a separate Gana-Sangha.
89
Jayaswal calls it ‘Pettanika constitution’
90
Ait. Br., VIII.12, Quoted from Jayaswal, Op. Cit. at Pg.85.
91
This form of government was not unknown to Indian history. Mahabharata relates this system to Avanti,
when it was under Vinda and Anuvinda, two rulers governing jointly.
92
Jayaswal gives a parallel notion of joint family system, otherwise unknown to most other countries,
where joint ownership of property, enjoyed jointly were flourishing, without any rivalry, conflict or
annihilation, which those people who were unfamiliar with such notion were afraid of successful existence.
Vide, Jayswal, Op. Cit. at Pgs. 85-86.
 125

meant that instead of taking any particular rule from any ruler or for that matter,
from any one of the group of men that ruled, the rules these gana followed were
those adopted by mutual agreement, arrived at by the members of the Gana.93 This
system, instead of being ridiculed, should have been the subject of praise. The
ancient India had practiced this form of ‘democracy’ without naming it so. Arajaka
here meant only ‘no man-ruler state’, and not the tyrannical rule, the Greek
thinkers were referring to.

Mahabharata reference to Gana-Sanghas:

Mahabharata gives a fair idea about the functioning of Gana-Sangha,

which had developed a clear foreign policy, full-fledged treasury, standing army
highly skilled in warfare, well settled laws for governance, and discipline being
maintained. In short, it depicted a well-organized non-kingly form of
government.94

The Sixth Century BC

Six hundred B.C. is ordinarily taken as the beginning of the history of north
India. It is during this century that the birth of Gautam Buddha, and Mahavira took
place from two well-known Gana-rajyas. This period is also marked by the attack
of the Achaemenid Emperor Cyrus, on the northwestern parts of India, especially
the states of Kambhoja and Gandhara. The Pali Pitakas mention 16 great countries
(Maha-janapadah), existing during this period; of these, the Janapadas of Virjjis
and Mallas were the two most known Gana-Sanghs.

Gana-Sanghas in Panini:

During Panini’s time (about 500 B.C.) there were many GanaSanghas in
existence, and by 600 B.C.95 all over North India. What Panini refers to are the
political Sanghas and not the religious Sanghas which came into existence from

93
Vide, Jayswal, Op. Cit. at Pgs. 107-112.
94
Reference to this is given by Jayswal, Op. Cit. at Pgs. 86-89.
95
Reference is to the well-known 16 Janapadas.
 126

the time of Buddha only. One thing is note- worthy that the members of the
Sanghas during this period were not definitely belonging to any Varna. They
included non-Brahmans and non-Kshatriyas, belonging to any other Varna
provided they lived in a defined territorial area, carrying a definite name attached
to it.

The first group of Sanghas Panini mentions is known as the group of

Ayudhajivin Sanghas. The nomenclature Ayudhajivin meant that the members, as
a rule, observed the practice of using arms, or military, and not ‘those who live the
profession of arms’.96That is to say, the members of these Sangha are to be skilled
in military arts. They lived in large territories, comprising of several cities, and
they were extraordinarily rich, prosperous and had well organised civil
administrative structure. They were free communities with military skill, having a
single text of written rules. The members were all devoted to these rules. They had
an elected leader, whom the members often addressed as ‘the raja’.
These Sanghas were almost entirely situated in the Vahika Country, that is,
mostly the Punjab (i.e., the undivided Punjab of the British period); and extended
to the Vahika land, i.e., the Sind valley and Punjab. The reference here is to the
valleys of the five rivers, including the Sindhu as the sixth.97 These Sanghas were:
(1) the Virka, (2) the Damini The Sambhas (3) to (8) had a common nomenclature,
namely, the Trigartta-Shashtha or the League of Six Trigarttas, and they were (a)
the Kaundoparatha, (b) the Dandaki, (c) the Kaushtaki, (d) the Jalamani, (e) the
Brahmagupta, (f) the Janaki (or the Jalaki); and (9) the Yaudheyas and others, and
(10) Parsva and others.98

96
Vide, Jayswal, Op. Cit. at Pgs. 30-33.
97
The six Trigarttas were at the foot of the Himalayas, in the Punjab, about Jammu or Kangra. Vide,
Jayswal, Op. Cit. at Pg. 35.
98
These Sanghas were named in Vide, Jayswal, Op. Cit. at Pg. 33.
 127

Besides these martial Sanghas, Panini mentions six other communities

having the characteristics of Sanghas. They are (1) the Madra, (2) the Vriji,99 (3)
the Rajanya, (4) the Andhaka-Vrishni, (5) the Maharaja, and (6) the Bharga.

The Andhaka-Vrishni Sangha:

As was discussed above Aitareya Brahmana refers to these Gana-

Sanghas, and that they are likely to be the Satvats, which is the ancient name for
the Yadavas. They followed the rules of governance of the Bhaujya system, which
was a non-monarchical kind, and their rulers were called Bhojas. Strictly speaking
Andhaka-Vrishnis did not have a rajan in their setup, and in some of the literature
it is found that they have been cursed for not having a king.100As mentioned above
the Andhaka-Vrishnis were mostly in the Kutch region of Western India; and
Gujarat was one of the most ancient seats of this Gana-Sangha.

According to Panini, the Sanghas had their own individual anka and
lakshana. Anka is a mark which is a symbol adopted by the changing governments
from time to time. An elected ruler or body of rulers adopted their own special
anka and the same was given up when these set of rulers went out of office. Thus,
anka signifies an individual mark, often used with initial letters representing the
leader or the legend attached to the Sangha. While it is a figure found in the punch-
marked coins that is called the Lakshana, often it is the figure of an animal, or
river, town, or the like. Panini described it as the heraldic crest of the Sangha that
were employed on their seals, coins and standards, as the official mark of the
Sangha.101 The coins of Andhaka-Vrishnis were struck in the name of Rajanya and
Gana: ‘Vrishnirajanya-ganasya’.102

99
Vriji-s will be explained in the next section; and Bhargas were known as the ‘Easterners’, found in Vatsa
territory, south of Mallas and not far from Videhas. They were the most prominent group of non-
monarchical people living in groups extending from Kosala and Kosambi, eastwards. Vide, Jayswal, Op.
Cit. Note 27 at Pg. 36.
100
It is said that even in the first century B.C. their coins were struck in the name of this Gana. Vide,
Jayswal, Op. Cit. Note 27 at Pg. 36-37.
101
Vide, Jayswal, Op. Cit. Note 27 at Pg. 36-40.
102
Id. Pg.37.
 128

Panini further clarifies that Andhaka-Vrishnis had two Rajanyas among

them, that being ‘the leaders of the families consecrated to rulership. 103 Andhaka-
Vrishnis indeed had a joint set of rules indicating that the powers of governance
was vested in two Rajanyas, with their respective vargas representing each
division. For example, Akrura was an Andhaka leader, and at a given time, one of
the two who headed the Gana-Sangha. This indicates that a group of Gana-Sangha
was led by two opposing parties (varga) as its leaders-in-rule. At the same time, it
is to be noted that as far as the Andhaka-Vrishnis were concerned, they had both
Andhaka Rajanya and the Vrishni Rajanya, both elected leaders.104

Gana-Sanghas in the Budhist Literature

Buddha was born in a Gana-Sangha, the Sakyas. He had Sangha neighbours
around him, and he grew up among them. He was the son of the Elder of the Gana
and it was the king of Kosala who destroyed the independence of Sakyas as a Gana,
during his lifetime. But when he established his own religious Sangha, he named
it Bhikku-Sangha, and adopted most of the organisational structures and the rules
and usages of political Sangha.

He had demonstrated at one time, in spelling out the best features of a

Sangha, because of which they were considered invincible. The following were
the seven principal features, which he also thought to be the several conditions of
the welfare of a community. They were applicable equally to both the religious as
well as the political Sanghas: (i) The members shall hold full and frequent
assemblies; frequent meeting together is unavoidable; (ii) They shall ‘meet
together in concord’, ‘rise in concord’ and ‘carry out the Sangha business in
concord’; (iii) So long as they enact anything that are not already established,
abrogate nothing that has been already enacted, they act in accordance with the
ancient institutions of the Vajjians; (iv) So long as they honour and esteem and
revere and support the Vajji elders, and hold it a point of duty to hearken to their

103
In the concerned literature, it is found that it is common to have dual groups of leaders, as found in
Andhaka-Vrishnis. Id. Pg.38.
104
Vide, Jayaswal, Op. Cit. at Pgs. 38-39.
 129

words; (v) So long as no women and girls belonging to them are detained among
them by force or abduction ; (vi) So long as they honour and esteem and revere
and support the Vajjian Chaityas (the sacred monuments, ie., follow the sacred
laws established); (vii) So long as the rightful protection, defence and support shall
be fully provided to the Arhants among them, ie., follow the established practice;
and (viii) So long as the Vajjians be expected not to decline but to prosper.105

Sixteen Janapadas
Six hundred B.C is ordinarily taken as the beginning of the history of north
India. It is during this century that (1) Urbanisations of Gangetic plain, (2)
Formation of earliest states, (3) Rise of Magadha as an Empire, (4) Birth of Gautam
Buddha, (5) Birth of Mahavira, and (6) the attack of the Archaemenid Emperor,
Cyrus on the north western parts of India, especially the states of Kambhoja and
Gandhara took place.106

The Buddhist traditions confirms existence of Gana-Sanghas prevalent in

the 6th century B.C. mostly in the Northern parts of India. Out of the sixteen Maha-
janapadah, Pali Pitakas mention, two of them, namely the Virjjis and Mallas, were
Ganasanghas. The rest all had kings as their head. These were, (1) Anga,107 (2)
Magadha,108 (3) Kasi, with capital at Kasi, modern Benaras; (4) Kosala, with
capital at Sravasti on the borders of Nepal; (5) Virijji, the country of the Vajjians,
who were composed of eight confederate clans, of whom the Lichchavis and the
Videhas were the most powerful. The capital of the Videhas was Mithila, and that
of Lichchavis, Vaisali; (6) The country of the Mallas, were divided into two
independent clans, and whose territory was on the mountain slopes to the east of
the Sakiya land; (7) Cheti, the country of Chedism, who perhaps had two distinct
settlements, one in Nepal and the other to the east or south-east of Kosambi; (8)
Vasta or Vamsa, of which Kosambi was the capital. It lay north of Avanti and

105
Vide, Jayaswal, Op. Cit. at Pgs. 43-44.
106
Vide, Thapar, Op. Cit. at Pg. 61-62.
107
They had occupied the region near modern Bhagalpur, with capital at Champa;
108
Occupied an area in South Behar, with capital at Rajagriha and afterwards at Pataliputra;
 130

along the banks of Jumna; (9) The country of the Kurus, with its capital at
Indraprastha, was near modern Delhi; (10) The country of the two Panchalas, to
the east of the land of the Kurus, had capitals at Kampilya and Kanauj; (11) The
Matsya country lay to the south of the Kurus and west of the Jamuna; (12) The
country of the Surasenas, had its capital at Mathura, to the south-west of the
Matsya country and west of Jumna; (13) The country of the Arsakas was on the
banks of the Godavari, with its capital at Potana or Potali; (14) Avanti, afterwards
called Malava, had its capital at Ujjayini; (15) Gandhara (modern Khandahar),
including Eastern Afghanistan and North-western Punjab, had its capital at
Taksha-sila; (16) Kamboja, the country near modern Sindh, had its capital at
Dwaraka.

On the other hand, the Buddhist literature describes many of the Gana-
Sanghas, including the one from which Buddha himself arose and lived, namely,
the Sakyas. These Gana-Sanghas covered the land to the east of the kingdoms of
Kosala and Kausambi (Vatsa), and to the west of Anga, from the districts of
Gorakhpur and Ballia to the North of Magadha and the south of Himalayas. The
Virjjis and Mallas were the most important groups. Eight of these prominent ones
are given here-below: (1) The Sakyas with their capital at Kapilavastu; (2) The
Kolias of Ramagrama; (3) The Lichchavis with their capital at Vaishali; (4) The
Videhas , with their capital at Mitthila (in the District of Dharbhanga (the last two
were con-jointly called the Vrijjis or the Vajjis); (5) The Mallas who covered a
large area to the south of the Shakyas and east of Vrijis, divided into two units,
with their capitals at Kusinagar (Kusinara) and at Pava; (6) The Moriyas of
Pippalivana; (7) The Bulis of Allakappa, which was a minor community and
neighbours of Mallas of Kusinagara; and (8) The Bhaggas (Bhargas) who were the
neighbours of the kingdom of Vatsas of Kausambi.109

109
Vide, Jayaswal, Op. Cit. at Pgs. 44-45.
 131

The Sakyas
The Sakyas had their capital at Kapilavastu, and was an independent
Gana, whose council was said to have been composed of around 500 members.
The Sakyas are said to have had a special kind of rule that each citizen could have
only one wife. As mentioned earlier, it was the king of Kosala who destroyed the
independence of Sakyas as a Gana, during the lifetime of Buddha.110According
to Jayaswal, a wrong impression was given by the western writers that these
Gana-Sanghas should be better considered as clans. These Ganas had long
passed the tribal stage of the Indian society, with a specific identity of Gana-
Sanghas, though some of them, very likely had a territorial or tribal basis.111 But
most of these Indian versions of Gana-Sanghas were so advanced in their
administrative structure and the format of governance that it would be too
simplistic to consider and reduce them as clans.

In fact, the Sakyas carried out their administrative and other functions in
public assembly wherein both the young and the old alike were present, in the
Common Hall (Santhagara) at Kapilavastu. It was in this hall, while in session
that all the issues especially those relating to their relationship with neighbouring
Sanghas or kingdoms were discussed. It was also in this Hall that Ananda, the
first counsel of Buddha who announced the death of Buddha, as they were all
present there to consider that very matter.112

The Lichchavis
The Lichchavi rulers (Gana-rulers) were the most prominent ones in so
far as the organisational set up was concerned and the rules they followed for
the governance of the Sangha. Their leadership consisted of four high offices:
The Raja, the Upa-Raja, the Senapati and the Bhandakarika (the

110
Vide, Jayaswal, Op. Cit. at Pgs. 44-47.
111
Id. At Pg. 46.
112
Id. At Pg. 47.
 132

Treasurer).113The government was in the city of Vaisali which had a system of

triple fortifications. Even though these were the four high administrative
authorities, the rule (rajjam) was actually vested in the inhabitants
(vasantanam), 7707 in number, probably the foundation families belonging to
the ruling class, and all of whom were entitled to rule (rajunam). There was
election from among them to the four titles above mentioned. The total
population was much larger divided into outer and inner citizens (Vaisalians),
1,68,000 in number. The rulers underwent the ceremony of consecration by
anointing.114 They all assembled in the Assembly Hall not only to discuss the
political and military matters but also agricultural and commercial. The
literature further refers to the Lichchavi Gana in session appointing a
Mahattaka or a distinguished envoy for an assignment to deliver a message ‘on
behalf of the Lichchavis of Vaishali’, to the neighbouring Sngha. And that
shows that it is the gana that transacted business on behalf of the whole people.

It is clear from the following passage that in their Council every member had an
equal right of speech or voting; and everyone wanted to be the next leader:
“….amongst them (the Vaisalians) the rule of having respect for the high, the
middle ones, the oldest, the elders is not observed; everyone considers himself to
be the raja, ‘I am the raja, I am the raja’. No one becomes the follower of
another.”115

The president (raja) of Lichchavi was treated as ‘the first among many’
(Unus unorum) and all his final decisions including that of the punishments
awarded to the erring citizens, were recorded on the ‘rolls’ (‘paveni patthakan),
with details of the nature of the guilt, the punishment awarded to them. It is
pertinent to mention that no citizen could be punished unless all three

113
The title Raja and Up-Raja here do not refer to the kingly sovereignty as ascribed to the real kings in
the monarchical kingdoms. It is to be seen that Buddha’s father, an ordinary simple citizen (Suddhodana
Sakiyan) was also called a raja.
114
Vide, Jayaswal, Op. Cit. at Pgs. 47-48.
115
Quoted from Jayaswal, Op. Cit. at Pg. 49.
 133

functionaries, namely, the Senapati, Uparaja and the Raja approved it, after
considering them separately, and without dissent.

There was a system of holding a first level hearing of the case before the
Vinichchaya Mahamattas ina regular manner. Thereafter, the matter would be
referred, if necessary, to the Sutra-dharas, who were well-versed in
vyavahara/dandaniti. The final decision, in all serious cases was taken by the
Ashta-kulakas ‘the eight noble men’. Thereafter, it would be sent to the three
functionaries for approval, as mentioned above.116Jayaswal asserts that these
measures were adopted to safeguard the liberty of citizens.

In the region there were two other strong monarchies, the Kasi-Kosala and
the Magadhan Empire. Both were bitter enemies of each other. The Gana-
Sanghas usually went with the Kasi-Kosala kingdom, as the Magathan Empire
were more interested in attaching the small kingdoms and Gana-Sanghas, while
the former were willing to keep them under their suzerainty, allowing them to
retain their identity. The Gana-Sanghas, among themselves, were also united in
league with each other, so much so that the Videhas and Lichchavis came to be
known as Samvajjis. During the last years of Mahavira, the Lichchvvis even
established a Joint Council with nine members added from the mallas, and
designated as Gana-rajas and was referred to in the Buddhist literature as
‘eighteen confederate kings’. The Council was in allegiance with the Kosalan
monarchy, as the Vaisalians had once a bitter battle with Ajatasatru of Magadha
which they lost.

The composition of the Joint Council shows that the member states had
equal votes and that the federation was based on terms of equality, even though

116
Vide, Ibid. Jayaswal claims that the system of the presented procedure was more or less the same as
those described in the Buddhist literature (Atta-katha) as well as the Sanskrit literature (Mahabharata). He
claims, “In the opinion of the author of Mahabharata criminal justice system in a republic should be
administered by experts through the President (nigrahah panditaih karyah kshiprameva
pradhanatah)(Shanti-parva, Ch.107,27) that the elders of the Kula Court (=Kulaka)
 134

the Mallas were not a great political power. Yet, both had equal membership and
had equal voice in the deliberations.

Summarising various authorities from Buddhist and Sanskrit literature,

the Greek writers, Kautilya etc., K.P. Jayswal has chronicled about 76 of such
Gana-Sanghas existing in the region in those days.

Rules of Procedure followed by the Gana-Sanghas

Jayaswal further describes in detail the procedure of deliberations that used

to take place in those Gana-Sanghas in general terms.117 Referring to Buddhist
literature, he narrates an incident of the king of Kosala besieging the capital of
Sakyas and wanting them to surrender. The Sakyas decided to convene the
Assembly to discuss whether to surrender or not. There was a difference of
opinion in the Assembly and it was decided to put the issue to vote. “The voting
resulted in favour of the proposed capitulation and the city was capitulated.”118
This indeed was an instance of a procedure for deciding a particularly important
political matter, by voting and in accordance with the opinion of the majority.

The rest of the procedure explained by Jayaswal in the same chapter is

based on the theory that Buddha adopted the procedures of the GanaSamgha
(political) system into his Bhiku-Sangha (religious) deliberations, which was an
acknowledged fact of history. And he further elucidates the impeccable
procedures followed, such as ‘the seating arrangements’119 for the members in
the assembly, front row seats reserved for the elders with say ten years or more
standing, while deliberations take place.
The procedure to move for a ‘resolution’ (pratijna)120 began with the
words, ‘Let the venerable Sangha hear me’; this was followed by speeches by
those who disapprove of the resolution. Once the resolution was repeated thrice
and the members remained silent, the resolution was treated as carried through.

117
This is given in Ch. XI of the Work Cited, at pages 90-106.
118
Jayaswal, Op. Cit. at Pg. 90.
119
Vide, Jayaswal, Op. Cit. at Pg. 91.
120
Vide, Jayaswal, Op. Cit. at Pgs. 91-93.
 135

The ‘rule of quorum’121 was strictly observed; with 20 as the quorum prescribed
for the smallest Sangha. The resolutions carried through without the prescribed
quorum were normally declared as invalid and inoperative. It was the duty of
one of the members to notify the lack of quorum, and it was called ‘gana-
puraka’.

Besides, there were rules prescribed for what would be the ‘consequences
of disregarding the procedure’.122 All resolutions were to be passed by ‘voting’
(chhanda)123; even the ‘absentee votes’124 were to be counted, unless objected
to. It was also common that voting took place unless the resolution was passed
unanimously; to pass them with the ‘majority’ (bahutara), voting had to be
carried and that too by using coloured voting-tickets known as Salakas.125 That
kind of voting was called Salaka-grahana, and one who conducted the voting
was called salaka-grahaka.

The Assembly gathered for whatever purpose, was to make sure that the
members avoided ‘pointless speeches.’ This was generally implemented by
appointing a committee, to which the right of deliberation was delegated. After
due deliberation it communicated its decision to the Sangha. This procedure
was called ‘proceeding-in-presence’ (Sammukhavinaya).126 The legitimacy of
this procedure was based on the principle of representation.
Once a question was decided in accordance with a valid procedure, it
could not be re-opened: ‘Having been once settled, it is settled for good.’127 The
other rules of procedure followed were, the ‘procedure of censure’ against those
members who did not control themselves during the deliberations and showed
‘contradiction, cantankerousness and similar misdemeanour in speech’. Re-
opening a settled matter was also considered to be a misdemeanour. Once the

121
Id. Pg 93.
122
Vide, Jayaswal, Op. Cit. at Pg. 93-95.
123
Id. At Pg. 94.
124
Ibid.
125
Id at Pgs. 94-95.
126
Vide, Jayaswal, Op. Cit. at Pgs. 96-98.
127
Id. At Pg. 98.
 136

Assembly decides a matter without quorum, such deficiency could not be

rectified by another fuller Assembly. The Buddhist literature also mentions
about proper recording of the procedures by one who is always present at the
deliberations without quitting his seat, for whatever reason. It is mentioned that
the Lichchavis had kept all the reords of the proceedings, resolutions and the
decisions arrived at the deliberations in the Assembly, at the instance of those
‘recorders of the house’, who were always men of high position.128It is worth
noting that the Lichchavis are recorded to have had a book of precedents.129

Jayaswal concludes that even in 6th century B.C., ‘a clear picture of a

highly developed stage, marked with technicality and formalism in language,
with underlying concepts of legalism and constitutionalism of a most advanced
type. This presupposes a previous experience extending over centuries. The
Jnapi, the Pratijna, the Quorum, the Salaka (ballot voting), the procedure of
majority, the reference are all mentioned by the Buddha without any definition,
that is, as terms already current’.130
Monarchies in the Sixth Century B.C.

Six hundred B.C. marks an era of emergence of kings and kingdoms. It was
during this period small towns began to grow up as centres of administration or
revenue collection; but many of these seem to have sprung up also as centres with
economic linkages of production and exchange, with activities related to the
artisans and merchants. Because of that, linkages with villages were unavoidable,
not only because these were revenue and administrative centres, but also due to
concentration of people in these towns for production purposes, these continued
their dependence upon the villages for food. These urban centres themselves
developed formations or associations of craftsmen and artisans, and of merchants

128
Id. At Pgs. 98-99.
129
Id. At Pg.106.
130
Id at Pgs. 99-101. Jayaswal also states that these rules were strictly applied to the dharma-Sangha, as a
spiritualised achievement for his ultimate purpose of a ‘propaganda of conquest’ as a member of the Gana,
Sakhya: “To achieve success in his spiritual designs, he had to perpetuate the republic of-dharma (Dharma-
Sangha), and to perpetuate the republic of dharma, he adopted the constitution and the constitutional
procedure of the republic of politics.” Id. At Pg. 101.
 137

for transport and distribution of items of trade produced for exchange. These urban
formations and associations also exerted considerable influence on the
administration and governance.

Contributions from Buddhist and Jaina Traditions131

According to Buddhist traditions, Rajya-sastra was composed not by

Bhrigu and Angira, but by their sons Sukra and Brhaspati, where one finds
references to kings who issues their orders (sasana), which is also known as Raja-
sasana.132 Reference to Mahasammata, who is depicted as a ‘sage-ruler’, without
any divine connotation has already been made above. Reference has also been
made above to the descriptions of the type of power, again without having anything
to do with divine sources.133

The Buddhist tradition is overly critical about the dogmatic Brahmanical

theory of four Varnas; instead, it extols social equality, stating that deformed
limbs, and dark-skinned persons can be found in all Varnas.134. In these literatures,
reference to Janapada is to denote the entire people excluding the capital city,
under one king or gana-sangha, and desha seems to indicate no other janapada
except one’s own, and grama, a subdivision of Janapada but area-wise. The king
is to perform political functions from the royal throne and dispenses danda against
those found guilty. Buddha used to call himself a Dharma-rajah and was
surrounded by four maharajahs. Some of the kings are said to have had 500
amatyas. An ideal kingdom is ‘just and righteous’ and exists for the purposes of
‘abundance, welfare, justice and peace’.135

The Jaina traditions,136 also describes the functions of a king to be the

protector of the subjects and the earth (Praja-bhumipa). He must be proficient in
Danda-niti (Danda-niti-visarada); he should abstain from all kinds of evil actions

131
To this part I am indebted to Varma, Dr. V.P., Op. Cit., Pgs. 159-180.
132
Ibid at Pg. 161.
133
Vide supra Pg.
134
Vide, Op. Cit. Varma, V.P. at Pgs. 164-65.
135
Ibid., at Pg. 167-69.
136
Ibid at Pg. 175-79.
 138

and should deal with the virtuous and those with evil tendencies, separately. Apart
from the payment of fine, there were seven kinds of punishments to be inflicted
upon the guilty, in proportion to their guilt. They are Hakkara, Makkara, Dhikkara,
Paribhasa, Mandali-banda, Karagara (imprisonment) and Chavi-cheda
(mutilation). If the king inflicts unjust punishment, he must pay a fine of an amount
calculated at 30 times, the amount of the original sum imposed as fine. The
traditions further mention about the four purushartha, Darmaartha-kama-moksha.
Isvara or Deva is considered as the highest Purusha. He is the ‘supreme power’
and the ‘destroyer of darkness’ and committed to the pursuit of common good.
There are references to six kinds of passions, the king should avoid, the acquisition
of four kinds of knowledge (Raja-vidya), the vyasanas, the Amatyas, Janapada,
Durga, the treasury, and vyavahara.

The Persians and the Greeks in India

The Iranians or the Persians and the Indians of the Aryan stock were
bifurcated in the ancient past, one entering Persia and the other into India. But
relations between them were not forgotten. In those days, the boundaries of India
and Persia were not well defined and naturally in the bordering areas of the two
countries a mixture of Persian and Indian languages and manners and customs
were in vogue. It was the eastern part of Persia that was lying adjacent to north-
western India, then known as the Chakravartkshetra. Those from the side of India
were not at all expansionists in nature; but those from the Persians side were and
several times they had attempted to conquer the north-western Indian districts.

In the sixth century B.C., the north-western region of India (now in

Pakistan) was divided into several small independent states. The most noteworthy
of these states were Gandhara, Kamboj and Madra. When Bimbisara was
expanding Magadha into an empire, the north-western parts, i.e., Uttarapatha was
still divided into small independent states with no political unity among them.

It was in 535 B.C. that Cyrus (600-530 B.C.), the founder of the
Achaemenid dynasty, for the first time, occupied Kambhoja and Gandhara. Cyrus’
 139

Indian invasion was thought to be a failure. It was in 518 B.C., that Darius I
annexed parts of Punjab and Sindh and occupied Gandhara, and Taxila, its capital.
Darius who came to the throne (522-486 B.C.) seems to have extended the Persian
Empire upto northern Punjab (518 B.C.). This part of India was the 20th Province
of the Persian Empire and the annual revenue earned from this province was gold
dust of the value of ten lakh pound-sterling. One-third of the total revenue of the
Persian Emperor came from the Indian Province. The administration was in the
hands of governors known as ‘satrapa’.
The region was believed to be the most fertile and populous part of the
Achaemenid empire. Indian subjects were also enrolled in the Achaemenid army.
The Persian rule in northwestern India lasted for nearly two centuries. During this
period there must have been regular contact between the two regions. From Arrian
also, one can know that the Indian soldiers fought for Darius III against Alexander
in the battle of Gaugamela.

During 380 to 338 B.C. the influence of Achaemenid Empire on India was
weakening and came to an end by 330 B.C. when Alexander subdued them. Taxila
was a plausible location for the capital of Achaemenid India, as it was situated at
the crossroad of the main trade roads of Asia, and was probably populated by
Persians, Greeks, and other people from throughout the Achaemenid Empire. The
‘University of Taxila’ became the greatest learning center in the region, and
allowed for exchanges between people from various cultures.

It was in Taksha-shila, where Kautilya appears to have gone as a student

in 344 B.C. at the age of 16. It is interesting to note that was time the Nanda
dynasty began to be established in Magadha. In those years, Gandhara was
considered to be the wealthiest of the provinces; it had several cities, and the
prominent among them was Taksha-shila (Taxila, as the Greek called it), which
was known as a centre of Indian and Iranian learning, and later the Hellenistic
knowledge was added to it. Kautilya continued to be a teacher. Taxila developed
 140

as a world-centre of learning, and exchange of ideas used to take place here.137 It

was a great Centre of Vedic and Buddhist learning.

Taxila (Taksha-shila), the capital of Gandhara, was existing where today

the modern Kandahar, Eastern Afghanistan and North- Western Punjab exist.
Gandhara was one of the 16 Janapadas that were flourishing in the sixth Century
B.C. In about 518 B.C. Darius the Great had annexed Taxila to the Persian
(Iranian) Achaemenid Empire.

Kautilya seems to have arrived (most probably from South India) at Taxila
at the age of 16 and had undergone the shiksha from there. He continued there as
a teacher of Arthasastra, which was a Veda, and a part of Itihasa-veda. He seems
to have mastered the subject and formulated the entire Arthasastra during these
years and a final shape was given to it by the time he turned 40 years of age, i.e.,
by 330 B.C.138
It was in the winter of 327-326 BC that Alexander the Great marched into
India.139 He crossed the Hindukhush Mountains from Bactria, and proceeded to
Swat valley, and then crossed Indus and reached Taxila. He entered an alliance
with Ambi, the king of Taxila. The Brahmins of the city were opposed to this.
Plutarch mentions that Alexander had several of them hanged to death.140 After
settling king Porus with his own territories, he crossed river Chenab, and then
Beas. As his army refused to go further, he did not proceed to Gangetic basin and
the return march began in October 326 B.C.

137
Thappar, Pp.133-138.
138
There are authorities that claim that Kautilya was born around 370 B.C. and died in 283 B.C., during
the reign of Bindusara, the father of Ashoka, at the age of 87. At the time of death, he was a dejected man
as he was accused of killing the wife of Chandragupta Maurya, his protégée. He had, as the tradition goes,
in fact, administered poison to her as an antibody treatment, so that she may escape death by poisoning at
the instance of enemies. It is a fact that after her death, he had married a Greek woman.
139
Alexander had crossed over to Asia Minor in 336 B.C., immediately after he became the king of
Macidonia and after two battles with the Iranian emperor, Darius III, he devastated the Achaemenid
Empire.
140
‘The Brahmans were known to the Greek as ‘the Indian teachers of philosophy’, and some of them acted
as advisors to princes. Alexander had groups of them hanged in Sindh as well on the accusation that they
had successively induced two local rulers, Musicanus and Sambus, to oppose him.’ Vide Irfan Habib and
Vivekanand Jha, “Mauryan India’, Tulika Books, Delhi (2004) 2011 at pg. 3.
 141

According to a prevalent legend, it was at his time, when the Brahmanas

were put to death on a large scale by Alexander that Kautilya travelled east to
Pataliputra, capital of the then powerful kingdom of Magadha, under the Nandas,
apparently to seek help against the Greeks. However, he was insulted and thrown
out by the then Ruler Nanda of Magadha. Kautilya decided to return to Taxila, and
on his return journey he met a boy, who was later to become Chandragupta
Maurya.

Alexander’s conquest was in 327-25 B.C. This provided a definite ‘marker’

for arranging the sequence of historical events in India. It was recorded that
Alexander’s army refused to march ahead when they heard about the vast army
and the strength of the Nandas of Magadha, a dynasty that was in place in Magadha
since 344 B.C. Alexander decided to return and died at the young age of 32 at
Babylon on his way to Macedon.

Chandragupta Maurya overthrew Nanda in 322 B.C.; and his annexation of

North-western India took place during 311-305 B.C. It may be mentioned here that
the Persian title of ‘satrapa’ (governor) continued to be used by the Indian
provincial governors as ‘kshtrapa’ for quite a long time.

After the death of Alexander, Kautilya and his protégé used every
opportunity to put together a band of rebels and attempted to overthrow the Nandas
but failed. Legends have it that Chandragupta had to flee to the forests to escape
the wrath of Nanda Rulers. After a couple of years, Kautilya and Chadragupta
succeeded in amassing a large army, probably from several forest tribes (atavi)
and gana-sanghas and were able to take control of part of the north-west part of
the country before proceeding to the Gangetic plains. Around 321 BC, they
defeated the Nanda Ruler of Magadha, and emerged as a power to reckon with
establishing control over the entire central India.

Around 305 BC, they confronted the Macedonians who were then in power
in the north-west part of India. Seleucus Nikator, one of the trusted generals of
Alexander, who oversaw the region then, was finally defeated around 303 BC. A
 142

treaty was concluded between the two, and Chandragupta gained control over the
area of Baluchistan and Afghanistan. Seleucus was obliged to give his daughter
in marriage to the Maurya king.141

Rise of Magadha as an Empire

The earliest reference to the Magadha people occurs in the AtharvaVeda
where they are mentioned along with the Angas, Gandharis, and Mujavats;
Magadha was one of the sixteen Mahājanapadas mentioned in the Buddhist
literature.
The Monarchical rule probably started by King Bimbisara (544–492 BCE)
of the Haryanka dynasty who pursued an expansion policy, and Magadhha
became a reckoning political power, first conquering Anga to the east; after
murdering his father, Ajatashatru (492–461 BCE) continued the policy of
expansion and annexed Kosala, though initially he had lost the war. It was he who
nurtured Pataliputra as a center of commerce and later became the capital of
Magadha. After a prolonged war with Lichchavis finally subdued them as well,
becoming a formidable imperial entity.

Concluding Remarks
In this chapter the author was attempting to scan through the political
background of Satra, to find out how the Sastra had grown to maturity, taking into
it the sap from the cultural past, determining a continuum in the political set-up of
the Chakravartikshetra. It has covered the emergence of various societal groupings
even from the ‘Vedic Society’, such as, the ‘Aryans and Dasyus’, the ‘Varnas’,
groupings like ‘Vidatha’, ‘Samiti’, or ‘Sabhas’, during the Vedic period.
Emergence of monarchies in that period is dealt with in ‘Vedic Kings’, followed
by ‘Emergence of Oligarchies: the Gana-Sanghas’. This aspect is further

141
Vide, Sanjeev Sanyal “The Land of the Seven Rivers, A brief History of India’s Geography, Penguin
Books, 2013, at Pp. 90, 92-93. What Shri. Sanjeev Sanyal has stated with regard to these events are accepted
by the present author and would avoid a prolonged debate on the topic. Similar was the opinion of Dr
Shama Shastri, which was widely accepted by most of the writers on Kautilya, including Shri. R.P. Kangle.
(R.P. Kangle Part III, pg. 59.) Shri. Shama Sastri in the preface to his English version of Arthasástra on
15.1.21915 gives his own reasoning that are worth adapting.
 143

elaborated in two parts, to cover the emergence in early India, namely, ‘Gana-
Sanghas in Post Vedic Period’, and ‘Mahabharata reference to Gana-Sanghas’. In
the Sixth Century B.C., there occurred a transition from mythical/philosophical
world view to a more enlightened way of looking at the political set up. This aspect
of political set up of ancient India, has not been noticed well enough by the
historians, and much less in the pollical history literature. This is elaborated in
various sections, like ‘Gana-Sanghas in Panini’, ‘Andhaka-Vrishni Gana-
Sanghas’, ‘Gana-Sanghas in Buddhist Literature’, the ‘Sixteen Janapadas’, the
‘Shakyas’, The ‘Lichchavis’, and the ‘Rules of Procedure followed by the Gana-
Sanghas’. This is followed by a section on ‘Monarchies in the Sixth Century B.C.’,
‘Contributions from Buddhist and Jaina Traditions’, Persians and Greek in India;
and finally, about the ‘Rise of Magadha as an Empire’

Xxxxxxxxxxxxxxxx
 144

धम#शा&ीय *याय-,-.या का सामा*य

प2रचय
!ो. कृ 'णा शमा,
सम.वयक धम,शा2 िव4ाशाखा,
क7 8ीय सं;कृ त िव=िव4ालय,
जयपुर पCरसर।

धम$ एव हतो हि+त धम, र.ित रि.त:।

त1मा3म, न ह+त5ो मा नो धम, हतोऽवधीत् ॥ (मनु ८/१५)

धम$शाB के अनुसार िविध का वण$न करने एवं इस चराचर जगत को MितिNत व

संतुिलत करने के िलए धम$ को ही मुPय आधार माना है धम$ को आधार मानते Tए भारतीय
िविध 5व1था मW अXादश िववादपद अथा$त 18 िववाद एवं राजधम$, 5वहार िवषय का
िन_पण `कया गया है िजसका सामा+य पaरचय िविधवेbाc, िविध के Mवdाc, िविध के
र.कe, िविध के अfयेताc एवं छाhe के िलए ही नहi अिपतु भारत वष$ के Mjयेक नागaरक
को इसका kान होना अjयावlयक है बTत से िनयम देशकाल एवं पaरि1थित के अनुसार
पaरवnत$त होते रहते हo और qकं तु कु छ िनयमe पर िवrsजनe के rारा िवचार िवमश$ `कया
गया तथा कु छ भारतीय िविधशाB के िनयम ऐसे भी हo िज+हW यथावत 1वीकृ त `कया गया है
िनयमe के 5ावहाaरक भाग का तो पaरवत$न `कया जाता रहा है और पaरि1थित के अनुसार
आगे भी पaरवत$न `कया जाता रहेगा qकं तु उनका आधार जो धम$ है उसके मूल को कभी
पaरवत$न नहi `कया जा सकता इसिलए समाज मW सदाचार युd xेN आचरण एक अनुपम एवं
अिrतीय आदश$ M1तुत करते हo और यही िविध के मूल भी है भारतीय +याय 5व1था का
आधार धम$ है और Mारं िभक वै`दक काल मW िविध ऋत के _प मW ही Mचिलत थी उसकz शिd
सव,{ थी इसी के आधार पर समाज का संगठन करने का Mयास `कया गया। ऋत् rारा
समाजीकरण मW }ा~ण •ंथो का ता€क$ क धम$ के _प मW िवकिसत Tआ तथा समाज rारा रा•य
कz उjपिb Tई िविध समाज का आदश$ थी और कƒयाण का साधन भी थी अतः इसी िवकास
1तर मW भी िविध का संबंध समाज कƒयाण रहा िजससे समाज एवं रा•य मW िविध को उ{
1थान Mा… Tआ। धम$शाB के अनुसार िविध को Mितपा`दत करने वाले अनेक •ंथ Mचिलत हo
`क+तु उसमW से िमता.रा एवं दायभाग को मुPय माना गया है िमता.रा याkवƒ†य 1मृित कz
टीका है िजसके लेखक िवkाने‰र है
 145

िमता.रा सŠMदाय चार उपसŠMदायe मW बंटा है, | िजनमW Mमुख •+थ िमता.रा के अितaरd
कु छ पूरक •+य भी हo जो उसके कु छ िस3ा+तe को _पा+तaरत भी करते हo, -
1. वाराणसीसŠMदायः -- वीरिमhोदय,
2. िमिथलासŠMदायः िववादर•ाकर, िववादच+• एवं िववादिच+तामिण
3. मुŠबई, गुजरात, मुŠबईrीप-उbरीकeकणनंच सŠMदायः - 5वहारमयूख ।
4. •िवड़-म•ास वा सŠMदायः 1मृितचि+•का, वरदराज का 5वहारिनण$य, पराशरमाधवीय
सर1वतीिवलास ।
कु छ Mा+तe मW िनयमe का अ+तर अवlय है `क+तु बंगाल को छोड़कर सŠपूण$ भारत मW
िमता.रा कz Mमुखता रही है। इस •ंथ rारा भारतीय िविध 5व1था एवं 5वहार को देखने
कz M`”या को सरल _प से M1तुत `कया गया है । कौनकाjयायन के rारा 5वहारपaरभाषा
के _प मW उƒलेख Mा… होता है `क-
िव' नानाथ— 'अव' स+देहे हरणं हार उ˜यते ।
नाना स+देहहरणा™वहार इित 1मृतः ।।
अथा$त् 5वहार शšद मW तीन अंश है- िव+अवहार। िव शšद अनेकाथ$ (िविवध _प
अथ$) का वाचक है। अवशšद का स+देह _प अथ$ माना है। 'हरणं हारः' भाव 5ुjपिb के आधार
पर हरण`”या को हार शšद से कहा है। अिभMाय यह है `क नाना Mकार के स+देहe के िनवारण
िजससे सŠभव हो, वही 5वहार है अथा$त् िविवध स+देह का िनवारण करने वाला 5वहार
होता है। जब कोई 5िd 1मृित (धम$शाB) तथा आचार (िशXाचार) के िवœ3 माग$ से `कसी
अ+य 5िd को अिभभूत करता है, तो वह 5िd दुःखी होकर +याय को Mा… करने के िलये
राजा या राजा के rारा िनयुd अिधकारी के सम. 5वहारपद अथा$त् िववाद के िवषय को
उपि1थत करता है, आवेदन M1तुत करता है, तो वह 5वहारिवषय बन जाता है, अथा$त् उसी
को 5वहार का िवषय माना जाता है। समुिचत +याय Mा… करना ही उसका उ•ेlय होता है ।
वादी Mितवादी मW से िजस 5िd पर अपराध करने का संशय होता है उस पर अिभयोग लग
जाता है और अिभयोग शšद के िलए िमता.रा मW कहा गया है `क
वादी Mितवादी मW से िजस 5िd पर अपराध करने का संशय होता है उसको अिभयोगी कहा
जाता है Mितkा, उbर, संशय, हेतु, परामश$, Mमाण, िनण$य तथा Mयोजन उसके अžग होते
हo। उसी के M1तुतीकरण को (अिभ•ह) या आरोप शšद से कहते हo। वह दो Mकार का होता है-
शžकािभयोग तथा तŸवािभयोग।
१. व1तुतŸव के िव मान न रहने पर भी संसग$माh के आधार पर जो अिभयोग M1तुत `कया
जाता है, वह शžकािभयोग है।
२. एवं जो व1तुतŸव के दश$न (Mjय.ीकरण) के आधार पर आरोप M1तुत `कया जाता है, वह
तŸवािभयोग होता है।
तŸवािभयोगः
 146

तŸवािभयोग भी दो Mकार का होता है- Mितषेधाjमक और िवfयाjमक।

१. मेरा सुवणा$`द लेकर नहi देता है- यह िनषेधाjमक अिभयोग है
२. तथा यह 5िd .ेhा`द का अपहरण करता है- यह िवfयाjमक अिभयोग है।
+याय5व1था सŠपादन के िलए कभी-कभी आसेध कz भी 5व1था करनी पड़ती है।
'राजाkयावरोध आसेधः' अथा$त् राजा या राजा के rारा िनयुd अिधकारी के rारा अवरोध
का िवधान `कया जाता है, उसी को आसेध कहते हo। वह आसेध चार Mकार का होता है-, ,
१ 1थानासेध - आप इस 1थान - िवशेष से अ+यh नहi जा सकते हo, इस Mकार के आसेध को
1थानासेध कहते हo।
२ कालासेध - आप स+fया काल पय$+त कहi भी नहi जा सकते हo, उसको कालासेध कहते हo।
३ Mवासासेध - आप `कसी अ+यदेश मW नहi जा सकते हo- यह Mवासासेध कहलाता है।
४ कमा$सेध - आप इस कम$िवशष को नहi कर सकते हo- यह कमा$सेध कहा जाता है।
इस Mकार से िजन िववादe को देखने के िलए धम$शाBीय +याियक M`”या Mयुd
कz जाती है उन िववादe कz संPया के िवषय मW धम$शाB मW भी अलग अलग मत Mा… होते हo
`क+तु साधारणतया िववादe कz संPया 18 मानी गई है।
अXादश िववादपद या 18 Mकार के िववाद िन¤िलिखत हo:
1. ऋणादानम् :- ऋण लेने और देने से संबंिधत िववाद।
2. िन.ेपः :- `कसी व1तु को जमा करने या रखने से संबंिधत िववाद।
3. अ1वािमिव”यः :-िबना 1वािमjव के व1तु के िव”य से संबंिधत िववाद।
4. सŠभूय-समुjथानम् :- साझेदारी से उjप¦ िववाद।
5. दb1यानपाकम$ :- `दए गए दान कz वापसी से संबंिधत िववाद।
6. वेतनादानम् :- वेतन या मजदूरी से संबंिधत िववाद।
7. सिवद्-5ित”मः : - अनुबंध के उƒलंघन से संबंिधत िववाद।
8. ”यिव”यानुशयः :- खरीद-फरोPत से उjप¦ िववाद।
9. 1वािमपालिववादः :-मािलक और सेवक के बीच के िववाद।
10. सीमािववादः :- भूिम कz सीमाc से संबंिधत िववाद।
11. वा†पाœ®यम् :- अपमानजनक भाषा से संबंिधत िववाद।
12. द¯डपाœ®यम् :- शारीaरक ±हंसा से संबंिधत िववाद।
13. 1तेयम् :- चोरी से संबंिधत िववाद।
14. साहस : - आ”मण या ±हंसा से संबंिधत िववाद।
15. Bीसं•हणम् :- मिहलाc के अिधकारe से संबंिधत िववाद।
16. Bीपुंधम$ः :- िववाह और पाaरवाaरक िववाद।
 147

17. िवभागः : - संपिb के िवभाजन से संबंिधत िववाद।

18. ूतसमा²वय : - जुआ और स³ेबाजी से संबंिधत िववाद।

इन 18 Mकार कz िववादe को देखने के िलए धमा$िधकरण अथा$त +यायालय मW जाकर

+याय M`”या का पालन करना पड़ता है +याियक M`”या के अंतग$त उसके चार मुPय 1तंभ
माने गए हo िज+हW 5वहार के पादचतुXय के नाम से जाना जाता है
5वहार1य पादचतुXयः-
1.भाषापादः- 'Mjयnथ$नोऽ•तो लेPयं' इित भाषापादः
'Mjयnथ$नोऽ•तो लेPयम्' अथा$त् Mjयथ´ के सम. वाद का िलखना भाषापाद कहलाता है। यह
पहला अंश है।
2.उbरपादः- 'xुताथ$1योbरं लेPयम्' इjयुbरपादो िrतीयः
अथा$त् भाषापाद को सुन लेने के बाद Mjयथ´ जो उbर िलखता है, वही उbरपाद कहलाता
है। यह 5वहार का दूसरा अंश है
3.`”यापादः- 'अथ´ लेखयेjस ः' इित `”यापाद1तृतीयः
अथा$त् अथ´ (वादी) अपने साfय कz िसि3 के िलये साधनe का उप+यास करता है। वह
`”यापाद कहलाता है। यह 5वहार का तीसरा अंश है।
4.साfयिसि3 पादः- 'तिjस3ौ िसि3माµोित' इित साfयिसि3पाद¶तुथ$ः
अथा$त् साधनe कz िसि3 से ही जयल.ण साfयिसि3 को Mा… करता है। यह 5वहार का
चौथा िसि3पाद है। इसी को चतु®पाद् 5वहार कहते हo।
इस Mकार से 5वहार के पाद चतुXय rारा िववाद का िन1तारण करके सjय को Mकट `कया
जाता है उस सjय के उ·ाटन के िलए Mमाणe कz आवlयकता होती है धम$शाB मW िजन Mमाणe
का वण$न Mा… होता है उसमW िन¤ Mकार के Mमाणe को दशा$या गया है
Mमाणम्
1मृjयोnव$रोधे +याय1तु बलवान् 5वहारतः ।
दो 1मृितयe अथा$त् 1मृितवा†यe का िवषयभेद होने के कारण पर1पर िवरोध होने पर
उjसगा$पवाद (सामा+यिवशेष) _प +याय Mबल होता है अथा$त् वही िनणा$यक होता है और
लोक5वहार से उस +याय का kान होता है।
अथ$शाBाbु बलव3म$शाBिमित ि1थितः।
उशना आ`द के rारा Mणीत राजनीितशाB के अपे.ा म+वा`द- Mणीत 1मृितशाB Mबल
है- यही शाBीय मया$दा है। राजनीित_पी अथ$शाB भी धम$शाB का एक अžग है, उसका
अलग कोई अि1तjव नहi है। इसीिलये कहा है `क 'राजनीितल.णमथ$शाBिमह िववि.तम्'।
अथ$शाB और धम$शाB_प 1मृितशाB का पर1पर िवरोध हो, तब अथ$शाB कz अपे.ा
धम$शाB Mबल है। यही शाB कz मया$दा है।
 148

सjय का उ·ाटन करने के िलए Mमाणe कz आवlयकता होती है इसी हेतु धम$शाB मW िन¤
Mकार से Mमाणe कz 5ाPया कz गई।

Mमाणं िलिखतं भुिdः साि.ण¶ेित कznत$तम्।

एषाम+यतमाभावे `द5ा+यतममु˜यते । २/२२
मानुिषकMमाणम्
१. लेPयMमाणम्
राजकzय लेखMमाण तीन Mकार के होते हo;-
१ शासनपhम् -- (राजकzय भूिम अथा$त् राजा rारा दी गयी भूिम का šयौरा) अथा$त् राजMदb
भूिम का पh २ जयपhम्-- (`कसी मुकदमे कz जीत का फै सला), ३ Mसादपhम्-- (बहादुरी के
इनामएवं भdवjसलता पर राजा
rारा `दये गये पुर1कार का लेखMमाण) । विसNने राजकzय लेखMमाण के चार 1व_प बताये
हo- शासनपhम्, जयपhम्, आkापhम् (साम+तe तथा अ+य कम$चाaरयe को दी गयी आkाएँ)
तथा, Mkापनापhम्
२. भुिdMमाणम्
पlयतोऽ}ुवतो भूमेहा$िनnव$शितवाnष$कz। परे ण भु•यमानाया धन1य दशवाnष$कz ।।
भूिम से असŠब3 5िd के rारा देखते Tए (Mjय.) तथा Mितषेध न करते Tए (िनषेध के
अभाव मW) बीस वष$ तक उपभोग करने के प¶ात् धन-1वामीके 1वjव कz िनवृिb हो जाती है
और हाथी, अ‰ आ`द धन के दश वष$ तक िवना `कसी के Mितषेध के भोग करने पर दश वष$
के प¶ात् उस 1वामी का 1वjव िनवृb हो जाता है।
३. सा.ीMमाणम्
सम.दश$नाjसाºयं xवणा{ैव िस3यित'
स च िrिवधः - कृ तोऽकृ त¶ेित । साि.jवेन िन_िपतः कृ तः। अिन_िपतोऽकृ तः ।
तh कृ तः प»िवधोऽकृ त¶ षि¼वध इjयेकादशिवधः --
िलिखतः 1माaरत¶ैव यदृ˜छािभk एव च।
गूढ¶ोbरसा.ी च सा.ी प»िवधः 1मृतः ।। इनके भेदe को भी नारद ने ही बताया है- िलिखत,
1माaरत, यदृ˜छािभk, गूढ तथा उbरसा.ी- ये कृ त पाँच Mकार के हo।
षि¼वध अकृ तसा.ी
षि¼वध1या¾यकृ त1य भेदो नारदेन दnश$तः (1/151)-'.
•ाम¶ Mाि¼ववाक¶ राजा च 5वहाaरणाम्। काय—®विधकृ तो यः 1यादnथ$ना Mिहत¶ यः।
नारद ने छः Mकार के अकृ त सा.ी के सŠब+ध मW भी बताया है। उ+हeने कहा है `क •ाम,
Mाि¼ववाक, राजा, अथ´ के rारा काय$ मW अिधकृ त, Mिहत तथा कु ल के िववादe मW कु ƒय - ये
छः अकृ त सा.ी होते हo।
 149

कु ƒयाः कु लिववादेषु िवkेया1तेऽिप साि.णः ॥' इित । 'Mाि¼ववाक' •हणं

लेखकस¿योपल.णाथ$म्; "लेखकः Mाि¼ववाक¶ स¿या¶ैवानुपूव$शः । नृपे पlयित तjकायÁ
साि.णः समुदाÂताः ।

दैिवकMमाणम्
१. `द5म्-
तुलाÃ+यापो िवषं कोशो `द5ानीह िवशु3ये ।
महािभयोगे®वेतािन शीष$क1थेऽिभयोdaर ।।
तुला, अिÄ, आप (जल) िवषतथा कोश नाम के पाँच `द5e का इस धम$शाB मW वण$न
है। सि+दÃध अथ$ (वाद) के स+देह- िनवृिb के िलये उनको देना चािहए। तुला`द `द5e का
महािभयोग मW ही Mयोग `कया जाता है। अिभयोdा (वादी) को द¯ड का अिधकारी िस3 होने
पर तुला`द का Mयोग करे । धम$शाB के अनुसार `द5 Mमाण का `कसी भी िववाद मW उपयोग
नहi कर सकते हo तब तक कz 5िd 1वयम उसे 1वीकार नहi करे गा तब तक `द5 Mमाण का
उपयोग नहi कर सकते है †यeकz `द5 Mमाण का चुनाव मनु®य 1वयं तब करता है जब वह
+यायाधीश या राजा के फ़ै सले से संतुX नहi होता है तो वह `द5 Mमाण को •हण करने के
िलए अपील करता है अतः किलयुग मW `द5 Mमाण का उपयोग वnज$त है `क+तु शपथ के _प
मW आज भी `द5 Mमाण कz उपि1थित देखी जा सकती है सामा+य लोग भी अब अपनी बात
को Mमािणत करने के िलए `कसी कz भी शपथ को •हण करते हo तो वह `द5 Mमाण का _प
ही माना जाता है िजस Mकार से +यायालय मW `कसी भी बात को कहने से पहले वादी Mितवादी
या सा.ी है कोई भी अपनी बात रखता है उससे पहले उसको xीमÆगवÇीता कz शपथ •हण
करनी पड़ती है इस Mकार से अपने आपको िव‰ास के साथ M1तुत करना या `कसी दूसरे को
िव‰ास `दलाना यह भी एक `द5ंका ही 1व_प है `क+तु इसका का किलयुग मW 1वतंh _प से
उपयोग नहi `कया जाता है
इस Mकार से भारतीय +याय 5व1था मW Mाचीन •ंथe के अfययन rारा यह िव`दत
होता है `क +याय 5व1था का िनमा$ण समाज को सुचाœ _प से चलाने के िलए तथा समाज
मW Mचिलत सम1याc का िनराकरण करने के िलए `कया गया है उन मW 18 Mकार के िववादe
मW से यहाँ पर ‘िवभाग’ नामक 5वहार का उदाहरण के _प मW उसका सामा+य पaरचय यहाँ
M1तुत `कया गया है।

दायभाग
िवभाग-
िवभागोऽथ$1य िपÊय1य पुhैय$h Mकƒ¾यते ।
दायभाग इित Mोdं तिrवादपदं बुधैः ॥ (नारद)
 150

नारद के मतानुसार- जहाँ पैतृक सŠपिb का पुhe rारा िवभाजन `कया जाता है उस 5वहार
पद को िवrानe के rारा दायभाग कz संkा दी गई है।
दायशšदः- “दीयते इित 5ुjपŸया दायशšदः, ददाितMयोग¶ गौणः,
मृतMÌिजता`द1वjविनवृिbपूव$कपर1वjवोjपिb फलसाŠयात्, न तु मृतादीनां तh jयागोऽि1त”
।। 4।
दाय शšद कz 5ुjपिb 'दा' धातु से है अथा$त् जो `दया जाता है वह
दाय है `क+तु दाय मW 'देना' `”या गौण है †यe`क मृतका`द 1वयं 1वjव का jयाग नहi कर
सकते। अतः यहाँ मुPय बात है 1वjव कz िनवृिb एवं पर 1वjव कz उjपिb। 1वjव कz िनवृिb
कई Mकार से हो सकती है जैसे मृत, सं+यासी एवं पितत होने पर
ददाितMयोग = गौणः, मृत, MÌिजत के 1वjव = िनवृिb । पूव$ पर1वjव = उjपित ।
फलसाŠयात्, न तु मृतादीनां तh jयागोऽि1त ।
†यe`क मृतका`द 1वयं 1वjव का jयाग नहi कर सकते।

य`द कु या$jसमानंशान् पÏयः काया$ः समांिशकाः ।

न दbं Bीधनं यासां भhा$ वा ‰शुरेण वा ।।
जब िपता अपनी इ˜छा से सभी पुhe का समान िवभाग Mदान करके िवभाजन करता है, तब
िजन पि•यe को पित अथवा ‰सुर के rारा Bी धन Mा… नहi Tआ है, उन पि•यe को भी पुhe
के बराबर ही भाग देकर िवभािजत कर देना चािहए अथा$त् पि•यe को भी पुh के बराबर ही
भाग देना चािहए।

िवशेष :-
चाहे सम िवभाग हो या िवषम िवभाग, तथािप •5ाज$न करके 1वयं धनसŠप¦ पुh को भी
कु छ भी थोड़ा 1वƒपमूƒय का भी व1तु देकर िवभािजत कर देना चािहए। काल मW उसके पुh
के मन मW दाय•हण कz इ˜छा हो सकती है और िववाद पैदा हाने कz संभावना हो सकती है।
इसकz िनवृिb के िलए िवभाजन आवlयक है। दूसरी बात यह बतायी गयी है `क िपता के rारा
+यूनािधक िवभाजन `कया Tआ िनवृb हो सकता है, य`द शाBोdिविध का अनुसरण नहi
`कया गया है। अतः िवषम िवभाजन मW शाBीय-िविध का पaरपालन करना आवlयक है
िवभजेर+सुताः िपhोœfवÁ aर†थमृणं समम् ।
माता-िपता के मरने के प¶ात् पुhगण माता-िपता के धन और ऋण का समान िवभाजन कर
लW।
िपतृ•5ािवरोधेन यद+j1वयमnज$तम् ।
मैhमौrािहकं चैव दायादानां न तÆवेत् ।।
 151

पैतृक धन का उपयोग `कये िवना ही 1वयं जो कु छ •5 उपाnज$त करता है अथवा

िमh के rारा या िववाहा`द सŠब+ध से जो धन Mा… करता है, वह धन भाईयe का नहi होगा
अथा$त् उस धन मW भाईयe का दाय नहi होगा।
”माद¿यागतं •5ं Âतम¾यु3रे bु यः ।
दायादे¿यो न त• ािr या लšधमेव च ।।
िपतृ-परŠपरा से समागत धन को य`द `कसी ने बलपूव$क •हण कर िलया हो और
दुब$लता के कारण िपता ने उसको Mjयावnb$त न कर सका। पुhe मW से कोई भी समथ$ 5िd
उस का उ3ार कर लेता है, तो उस धन मW भाईयe का दाय नहi होगा। उ3ार करने वाला
5िd ही उसका अिधकारी होगा। उसी Mकार अfयापन आ`द से Mा… धन मW भी `कसी का
दाय नहi होगा।

िन®कष$ _प मW कहा जा सकता है `क भारतीय िविधशाB के िस3ांत आज भी Mासंिगक

हo और समाज मW +याय और समरसता सुिनि¶त करने मW महjवपूण$ भूिमका िनभाते हo।
भारतीय िविधशाB मW धम$ का Mमुख 1थान है, जो न के वल 5िd के जीवन मW नैितकता और
कत$5 का बोध कराता है, बिƒक समाज मW +याय और अनुशासन 1थािपत करने मW भी सहायक
होता है। धम$शाB मW अXादश िववादपदe का िववरण +याियक M`”या को 1पX और संगaठत
बनाता है। इन िववादपदe के माfयम से समाज मW िविभ¦ Mकार के िववादe का िन®प. और
+यायसंगत समाधान `कया जा सकता है।