Every complex society has felt the need to create legal systems to adjudicate disputes between individuals and groups, and to determine whether people are guilty of the crime they are accused of. Such explicit and transparent systems are required if people are to have confidence in the outcome of verdicts. So, it has become a dictum that justice must not only be done but must also be seen to be done.
Ancient India was no exception.
I was part of an editorial team that produced the Cambridge Comparative History of Ancient Law, which was just published. As I was writing the chapter on ‘Legal Procedure’, it became obvious that ancient India produced some of the richest literature on this topic, vastly more copious and sophisticated than that of any other ancient civilisation. In the process, the Indian jurists created a well-developed technical vocabulary.
Legal procedure
The first detailed account of legal procedure, known in Sanskrit as vyavahara, is found in Kautilya’s Arthashastra. However, it does not directly designate a person or institution in whom judicial power and functions of a society are vested. It simply describes the structure of civil and criminal courts and the procedures they are supposed to follow.
Civil courts are headed by a bench of three senior officers of the State. Kautilya says, “Justices (dharmastha) of ministerial rank (amatya) should conduct trials of lawsuits.” (Kautilya 3.1.1)
In the parallel criminal system, courts are overseen by a different set of officers called pradestri. Manava-Dharmasastra, or The Laws of Manu, written a century or so after Kautilya, on the other hand, explicitly vests judicial authority in the king himself. It is only in his absence that a substitute judge, called pradvivaka, presides over the court.
The king and chief judge, who are not necessarily legal experts, are assisted by three such experts called sabhya or assessors. These three legal consultants are probably related to the three justices of the Arthashastra. Other court personnel include bailiff, accountant, and scribe.
Also read: Rome to Kabul, ancient India was a global player in trade. Kautilya’s Arthshastra tells all
Plaint and plea
A lawsuit (artha) begins with a plaintiff (arthi) filing a plaint with the court. This initial plaint, called bhasha, is written on an erasable surface such as a chalkboard. The plaintiff is permitted to revise it until the defendant (pratyarthi) files his plea (uttara), which is then written down along with the revised plaint on a more permanent surface such as a palm leaf.
Sources give clear guidelines as to the format of the plaint and plea. Any serious deviation from those guidelines would render them legally invalid. The fifth-century jurist Yajnavalkya calls the plaint and plea the first two of the four feet of a court proceeding.
Once the plaint and plea have been filed with the court, the substantive part of the court proceeding begins. According to Yajnavalkya, the third foot of the proceeding is the presentation of evidence. The task before that, however, is to determine which party has the burden of proof. This may seem obvious today: The plaintiff has the burden of proof. However, the ancient Indian jurists saw the issue as more complex.
The kind of plea entered by the defendant determines which party must produce evidence. If it is one of admission (sampratipatti), then the legal proceedings stop and the plaintiff wins the case. If it is one of denial (mithya), then the burden falls on the plaintiff.
The ancient law recognises two other scenarios: The defendant can present a qualified admission, also called a special plea. For example, if the plaint says the defendant took a loan of Rs 1,000, the defendant may admit that he did indeed take the loan but claim that he paid it back. Alternatively, the defendant can claim that the same plaintiff filed an identical lawsuit previously and a court found him innocent.
In both these cases, the burden of proof shifts from the plaintiff to the defendant. He has to prove that he did indeed pay back the loan or that a prior court ruled in his favour.
Also read: Panchatantra had Hebrew, Spanish, Latin versions. Different cultures made it their own
Types of evidence
Once the burden of proof has been determined, the presentation of evidence begins. The most significant kind of evidence is live witnesses. (This was especially so prior to about the fourth century CE when writing became widespread and legal documents began to play an important role.) Unless both parties agree, a minimum of three witnesses is required.
There are detailed rules regarding the admissibility of witnesses for both the plaintiff and the defendant. These rules relate to a variety of factors, including social class, gender, and age. Witnesses are admonished by the judge to say truthfully what they have seen or heard, reminding them of the dire consequences, both here and in the hereafter, of bearing false witness:
“Whatever good deed you have done over hundreds of lifetimes, all that will go to the man you defeat by your false testimony.” (Yajnavalkya Dharmashastra 2,79)
A false witness, as also anyone who suborned perjury, is sent into exile. The sources identify clues to detect false testimony. These include sweating, the face changing colour, lips becoming parched, looking from side to side, and the like. It is, however, for the judge and assessors to determine who is speaking the truth, even though the statements of most witnesses are accepted as probative.
Post-Gupta sources place greater weight on documentary evidence (lekhya). Here, the judges are told to be attentive and detect forged documents. The sources assume that most legal transactions—especially loans—are accompanied by a legal document attested by witnesses and they spell out the format and legal requirements of a valid document.
The third kind of evidence is possession (bhukti). This is especially pertinent for litigation with respect to land and houses. It is a principle of jurisprudence that possession over a certain number of years, usually 10, without objection establishes a person’s ownership over real property.
The final form of evidence, which may seem quaint to us, is ordeals. Sources give detailed rules for ordeals with fire, water, balance, and so on. In medieval times, entire books were written on this topic. The assumption is that gods, who are wedded to truth, will identify a person who tells a lie in court.
Also read: Actors of ancient India performed with ‘weapons, fire & poison’. Kautilya wasn’t a fan
Judicial deliberation
The final phase of the proceeding—the fourth foot—is judicial deliberation (pratyakalita) followed by the verdict (nirnaya). The court usually issues a document (jayapatra) recording the judgment and gives it to the party that wins the case. The loser is forced to indemnify the victor and in addition, is assessed a fine.
The losing party, however, can file an appeal to a higher court. Sources generally recognise five fora or courts for resolving disputes: family (kula), guild (shreni), company (gana), the royal court, and the king himself. The legal procedure outlined above is that of royal courts. Individuals who lose cases at the family or guild level can always appeal to a royal court. The losing side in the royal court also can appeal to the king himself, whose judgment is final and not subject to appeal.
In this brief essay, I have given parenthetically the Sanskrit legal terms to highlight the sophisticated technical vocabulary of ancient Indian jurisprudence. Its earliest appearance can be found in documents from the centuries just before the Common Era. Around the sixth or seventh century, we get texts exclusively devoted to legal procedure, such as those ascribed to Narada, Katyayana, and Brihaspati. By the Gupta times (320-550 CE), this vocabulary can be seen to have undergone remarkable growth.
Jurisprudence stands out as one of the major achievements of ancient Indian intellectual tradition.
Further reading:
Hindu Law: A New History of Dharmaśāstra. Edited by Patrick Olivelle and Donald R. Davis, Jr. Oxford: Oxford University Press, 2018.
Patrick Olivelle is Professor Emeritus of Asian Studies at the University of Texas at Austin. He is known for his work on early Indian religions, law, and statecraft. Views are personal.
(Edited by Prasanna Bachchhav)