22
Legal Procedure
vyavahāra
Patrick Olivelle
In a legal system, Hart (2012 ) contended (as we have seen Chapter 3 ) there are two kinds of law: primary rules and secondary rules. The former, also called substantive law, governs the everyday life and transactions of individuals and groups. Hart subdivides the latter into three: rules of recognition, change, and adjudication. As we have dealt with the first two in Chapter 3 , this chapter focuses on the third kind of secondary rules dealing with the procedures to be followed in adjudicating disputes and lawsuits arising from the breach or the perceived breach of primary rules.
When there is a dispute between private individuals or groups, or when an individual is accused of a crime by the state, a legal system must have a process whereby a just resolution or verdict can be reached: justice must be seen to be done. At an anthropological level, once we move away from face-to-face small-scale communities, where one would expect the leader’s wisdom and judgment to be respected, a system of justice requires transparent and accepted rules for adjudicating disputes and accusations. These rules of adjudication are what we mean by legal procedure. First, they confer on certain individuals the power to adjudicate, constituting them as judges presiding over courts of law. Second, they constrain the way judges and other court personnel conduct a court case, identify individuals who are competent to file lawsuits and the kinds of charges that may be entertained by a court, prescribe the kinds of evidence that are valid and acceptable, and point out how evidence should be assessed and the manner in which decisions are reached. From at least the first century ce , in India, we have sections of legal codes, and from about the sixth century ce , specialized codes devoted to the examination of legal procedure called vyavahāra . In this chapter, we examine the scholarly explorations of this topic carried out by the authors of not only the Dharmaśāstras but also later commentators and medieval writers of legal digests.
It is clear, however, that legal procedure centered on impartiality, on treating all litigants fairly, long predates the extant Dharmaśāstras. Already in the third-century bce inscriptions of Aśoka, we have the emperor’s instructions to his judicial officers to be impartial. 1 Further, in the Bṛhadāraṇyaka Upaniṣad (1.4.14) we have a statement about how a weaker man can take a stronger man to court and make demands “by appealing to dharma , just as one does by appealing to the king.” The even and impartial judicial process makes them equal at least within the legal arena.
Yet, it is only with the writing of Dharmaśāstras texts that we are presented with the actual procedures that judges were expected to follow in a court of law. 2 However, it is quite likely that these procedures pertained specifically to royal courts. Whether and to what extent they were also followed by other venues for dispute resolution, such as castes and guilds, discussed below, is difficult to estimate. The procedure presented in the early Dharmaśāstras (third c. to first c. bce ), generally within the discussion of the duties of a king, is sketchy at best, and the technical vocabulary is not well developed. The earliest text, that of Āpastamba (third c. bce ), states that “men who are learned, of good family, elderly, wise, and unwavering in their duties” should resolve disputes (ĀpDh 2.29.5–2.29.10). If there is doubt, they should investigate through evidence (liṅga ) and ordeals (daiva ). The parties present their case, and the chief witness should tell the truth. If he tells a lie, he is punished by the king, and hell awaits him after death. We do not find in Āpastamba’s laconic exposition any technical terms for such central figures as judge, litigant, or even witness.
We see an enormous change in the discussion of procedure just a century or so later by Gautama (second c. bce ). He has a fuller discussion of witnesses called, for the first time, sākṣin to which he devotes an entire chapter (13). For the very first time in Indian jurisprudence, Gautama alludes to two kinds of witnesses: those listed by the litigants and those who are not, using the term anibaddha for the latter. Witnesses are not to speak until they are convened and questioned by the court. Gautama says that, according to some, witnesses are to be placed under oath (śapatha ) in front of the gods, king, and Brāhmaṇas, a common requirement in later sources. He is also the first to instruct the witnesses of the dire consequences of giving false testimony, perhaps alluding here to the judge’s oration to the witnesses given in later sources, and the first to give one circumstance in which lying under oath to the court is permitted—when a litigant’s life is at stake in a case involving the death penalty (GDh 13.24).
Besides using for the first time in the history of Dharmaśāstras the crucial terms vyavahāra (as litigation or court procedure) and sākṣin for witness, Gautama uses several other technical terms: sabhya (assessor, who occupies a central position in later discussions); prāḍvivāka (interrogator, later the chief judge); tarka (judicial/legal reasoning); and vipratipatti (disagreement between litigants or witnesses). 3 Gautama also has a more complete description of the legal process. Given that, as we have seen in Chapter 3 , Hart’s rule of recognition is important for judges, because they must know what the law is before they can apply it, it is significant that Gautama lists various laws, besides those derived from the Veda and Dharmaśāstras, that may be applicable in particular cases: the laws of a region, caste, and family. Further, he recognizes the legal authority of groups of farmers, merchants, herdsmen, moneylenders, and artisans with respect to their members. 4
Gautama is also the first to list the king as the judge (GDh 13.26), implying the later conception that all judicial power is vested in the king, a judge (prāḍvivāka ) exercising it only when deputed by the king. If there is a miscarriage of justice, “the guilt falls on the witnesses, assessors, king, and perpetrator” (GDh 13.11). 5 Gautama also alludes to the possibility that the court may grant (probably the defendant) a postponement of the proceedings, except in cases requiring immediate attention (GDh 13.26–13.30). These points will reappear, and they will be expanded upon by later jurists.
The next jurist, Baudhāyana, unfortunately, has very little to say about legal procedure, except to cite seven verses on the way witnesses are placed under oath by the court (BDh 1.19.7–1.19.12). 6 He is, however, the earliest author to address the issue of eligibility with respect to witnesses: “People of the four classes (varṇa ) who have sons may be witnesses, except learned Vedic scholars, royals, wandering ascetics, and those who lack humanity” (BDh 1.19.13). Later authors will present long lists of individuals excluded from being witnesses.
Even though Vasiṣṭha wrote over two centuries after Gautama, his discussion of legal procedure is skimpy. He begins the section quite promisingly, with the introductory statement: atha vyavahārāh (“Next, legal procedures [or] lawsuits” VaDh 16.1), but does not follow through. 7 He says that court proceedings (sadaḥkāryāṇi ) are to be conducted by the king or counselor (mantrin ); he is the only one to list mantrin as judge. Vasiṣṭha is the first to introduce the classification of evidence into three: witnesses, documents, and possession. Although both this classification and the accompanying new vocabulary—lekhya and likita for documents, and bhukti for possession—represent a clear advance in jurisprudential thought, given the poor transmission of the text, it is unclear whether this passage was original to the text or inserted into it at a later date, for this three-fold classification, found for the first time in Yājñavalkya, is missing even in Manu.
Two major texts of the first two centuries of the Common Era, Kauṭilya’s Arthaśāstra and Manu’s Dharmaśāstra , represent a watershed in the jurisprudential history of ancient India. Although evidence does not permit certain conclusions, it is quite likely that the early reflections on jurisprudence in general and on legal procedure in particular were carried out in the expert tradition of political science, whose sole extant text from the ancient period is that of Kauṭilya. It is quite certain, however, that writing a century or so after Kauṭilya, Manu derived much of his material on statecraft and law from his treatise, 8 and even to a greater extent, as we have seen in Chapter 1 , Yājñavalkya, writing two or three centuries after Manu. Nevertheless, the traditions of Arthaśāstra and Dharmaśāstra have different ideological moorings and practical aims, and we see these expressed in the discussions of legal procedure of these authors.
In Kauṭilya’s work, we have the earliest comprehensive discussion of legal procedure, given that the data from the Dharmasūtras are fragmentary and superficial. Its third book, entitled Dharmasthīyam , a book that is devoted to law, legal procedure, and dispute resolution, begins with the constitution of a court. A few significant points emerge from its opening statement. First, the official presiding over a legal trial is called dharmastha. This official is encountered both in this book and elsewhere in the Arthaśāstra , and his authority and duties went beyond dispute resolution. We have here for the first—and last—time the constitution of a bench consisting of three justices “of ministerial rank,” which may mean that there were justices of varying seniority, those of ministerial rank (amātya ) being the most senior (AŚ 3.1.1). These court sessions were held in various population centers, 9 implying that people living in villages and outlying areas would have to travel to these locations to obtain legal remedy. The provisions for travel by court officials to be paid by the losing party (AŚ 3.1 22–3.1.24), however, indicate that other kinds of courts, perhaps lower level and consisting of fewer judges, may have traveled to villages to conduct trials. The most significant point in Kauṭilya’s discussion of the court is that there is no mention of the king. Court proceedings in both civil and criminal cases were carried out by professional judges. There is no mention of judicial powers being vested solely in the king, which is the ideological position implicit in the early Dharmasūtras and explicitly enunciated by Manu and his successors.
Kauṭilya presents a complete, though brief, description of legal procedure. As in most ancient discussions of the topic, disputes relating to debts (probably the most prevalent dispute in ancient India) provide the paradigmatic structure for Kauṭilya’s presentation. At the beginning of the court proceeding, the court writes down details of the suit, including, for example, the amount of the debt along with the date, and the “region, village, caste, lineage, name, and occupations of the plaintiff and the defendant” (AŚ 3.1.17). The two are required to present sureties 10 to the court, sureties who are able to pay any compensation or fines that may be imposed on the litigants. The court reviews the written record and then interrogates the litigants. The plaintiff has the burden of proof, and the court can summarily dismiss the case for a variety of reasons, including his inability or unwillingness to present documentary evidence he has promised to produce, secret conversations with witnesses, failure to offer a response after the defendant’s plea, and absconding. The defendant, however, is given a reasonable amount of time to respond, and he loses the case if he does not enter a plea within six weeks, a procedural rule common in later sources.
Kauṭilya also enunciates two basic principles of litigation that are followed by all later authors: the accused cannot countersue the accuser except in narrowly circumscribed circumstance, and a third party cannot file another lawsuit against the defendant before the first lawsuit has been disposed of. 11 Another feature of Kauṭilya’s discussion of legal procedure is that two facets of it are dealt with in two different places. The constitution of the court and preliminary court proceedings are discussed in the first chapter (AŚ 3.1), and this feature is carried on in later texts, such as Nārada’s, in an introductory section called vyavahāramātṛkā, “topics of legal procedure.” The presentation of evidence—especially the central issue of witnesses—is discussed in the section devoted to the nonpayment of debts (ṛṇādāna ), which in the Dharmaśāstras is the first ground for litigation or vyavahārapada. Although Kauṭilya does not use this technical term—it will be used for the first time by Manu—he uses the parallel term vivādapada 12 with the same or similar meaning, namely, the grounds on which legitimate litigation can take place. Kauṭilya’s discussion of witnesses is extensive, occupying twenty-six sūtras (AŚ 3.11.25–3.11.50), but it does not differ substantially from what is given by Gautama.
Another distinctive feature of Kauṭilya’s work is his discussion of the criminal justice system, which occupies the entirety of Book Four. The focus of Dharmaśāstras is on private litigation in which the court acts as an impartial adjudicator or arbiter; their discussion of criminal justice, apart from police action to protect citizens, is minimal. Four significant elements of Kauṭilyan criminal justice are criminal court called kaṇṭakaśodhana , gathering of intelligence on criminals and criminal activities, gathering of forensic evidence including autopsies on bodies of people who have died suddenly (āśumṛtaka ), and the interrogation of the accused. 13
The criminal court, much like the civil court, is presided over by a bench of three judges called pradeṣṭṛ. A person accused of a crime—theft and robbery are the paradigmatic examples—is sent to this court. There he is subject to interrogation, and Kauṭilya gives us a glimpse into it:
In the presence of the victim of the theft, as well external and internal witnesses, he should interrogate the accused about his country, caste, lineage, name, occupation, wealth, associates, and residence. He should corroborate these by checking them against other depositions. Then he should interrogate him about what he did the previous day and where he spent the night until his arrest. If he is corroborated by the person providing his exoneration, he is to be considered innocent; otherwise, he is to undergo torture. (AŚ 4.8.1–4.8.4)
Kauṭilya is aware that innocent people can be accused of a crime for a variety of reasons and warns the judges to be vigilant: “When a person accused of being a thief has been inculpated because of enmity or hatred, he is to be considered innocent” (AŚ 4.8.7). Even when an accused confesses to the crime, the judges are asked to be careful because people can be made to confess to things that they have not done:
Against someone on whom suspicion has fallen, he should produce tools, advisers, accomplices, stolen goods, and agents; and he should corroborate his action by checking it against the entry, the receipt of the goods, and the partition of shares. When these kinds of evidence are lacking, he should consider him as just a blabbermouth and not the thief. For we see that even a person who is not a thief, when by chance he runs into thieves making their way and is arrested because his clothing, weapons, and goods are similar to those of the thieves or because he was lingering where the stolen goods of the thieves were found, may, just like Māṇḍavya-of-the-Stake, 14 confess “I am a thief” even though he is not a thief, because he fears the pain from torture. Therefore, he should punish only a man against whom there is convincing evidence. (AŚ 4.8.9–4.8.13)
If there is strong suspicion against a person, the judges can subject that person to torture, even though Kauṭilya lists many individuals who should not be tortured, including women, children, and the insane (AŚ 4.8.17–4.8.20).
Kauṭilya is the only ancient jurist who discusses the gathering of forensic evidence for criminal cases. He gives the example of a house that has been burgled at night (AŚ 4.6.16–4.6.19). The investigators are to gather evidence by examining any breach in the wall, footprints, and the like to determine whether the crime was committed by an outsider or by someone within the house, such as a servant. Any suspect taken into custody should be examined for bruises, damage to clothing, dust on the body, and the like. A kind of statute of limitations, however, is given: “A suspect may not be arrested after the lapse of three days, because questioning becomes infeasible—except when the tools are found on him” (AŚ 4.8.5). Kauṭilya also gives perhaps the only description of an autopsy in ancient India (AŚ 4.9). The body is first coated with oil. Different kinds of murder, such as strangulation, hanging, drowning, and poison, leave telltale marks on the body. The investigator also questions the relatives, enemies, and those found nearby, as well as family members, professional colleagues, and rivals.
The two parallel court systems, the civil courts run by dharmasthas and the criminal courts run by pradeṣṭṛs , have their own jails, and Kauṭilya gives us precious information about the construction and running of these jails (AŚ 2.5.5; 4.9.21–4.9.27), about ways in which corruption in the judiciary, court officials, and prisons (AŚ 4.9.13–4.9.28) is to be eradicated.
A final point to note is Kauṭilya’s use of a spectrum of technical legal terms, evidencing the emergence of a highly theoretical jurisprudential system. Given the constraints of space, here I will only give a list of such terms, which we will also encounter in the later Dharmaśāstric literature.
abhiyukta , accused, defendant (3.1.25; 4.6.6); abhiyoga , lawsuit (3.1.26); abhiyoktṛ , plaintiff (3.1.27); adeśa , a document that is inadmissible in court (3.1.17); adhikaraṇa , court (3.1.17); anuśiṣṭa , a case in which a verdict has been rendered (4.9.15); artha , lawsuit (3.1.1); avastha , surety (3.1.17); āgama , title to property (4.6.7, 8); āvedaka , defendant (3.1.17); deśa , documentary evidence (3.1.19); hīnadeśa , defective document (3.1.19); karma, torture during interrogation (4.8.14, 17); lekhaka , court scribe (4.9.17); niyamya , losing party, one subject to penalty (3.1.24); niṣ √pat , to abscond, not to appear in court (3.1.32–3.1.33); parokta , loss of suit (3.1.19-20, 27); prati-abhi √yuj , to countersue (3.1.25); prati √brū , to give a reply, to enter a plea (3.1.27, 31); prativādin , defendant (3.1.17); pramāṇa , evidence (3.11.26); saṃpratipatti , admission, guilty plea (3.11.25–3.11.26); tārita , a case already tried (4.9.15); vāda , plaint (3.1.19); vādin , plaintiff (3.1.17); vedaka , plaintiff (3.1.17).
Writing a century or so after Kauṭilya, Manu, in all likelihood, had a copy of the Arthaśāstra before him when he composed his justly famous Dharmaśāstra . Manu was the first author in the Dharmaśāstric tradition to fully integrate these areas of statecraft and law. The dependence of Manu on Kauṭilya in the sections of the king and legal procedure is firmly established. 15
Manu, however, introduces several noteworthy innovations. First, the judicial authority of the state is vested in the king; there is no separate judiciary like the one envisioned by Kauṭilya. When the king is unable to perform his judicial function, however, he may delegate it to another person or persons, who then function as substitute judges in place of the king; but their authority is derivative. The person whom the king appoints to try cases in his place is not given a special or technical name. Manu simply calls him “a leading minister” or “a learned Brāhmaṇa” (MDh 7.141, 8.9). The term prāḍvivāka that Manu, as Gautama before him, uses in the context of examining witnesses, 16 most likely refers to a court official designated to interrogate witnesses rather than to the officiating judge, even though in medieval legal literature this term is used with reference to the chief judge. Another legal principle articulated by Manu (8.44) is that the state—whether it is the king himself or an officer of his—cannot initiate a lawsuit. This clearly applies to civil suits, and I will return to this issue later in the context of criminal justice.
Manu has one of the longest and most detailed accounts of witnesses and of how the court is expected to assess the veracity of their testimony. Witnesses must be listed by the plaintiff and the defendant at the very start of the trial, even though in exceptional circumstances others not initially listed may be permitted to testify if in the judgment of the court their testimony will lead to a just verdict. When human testimony is unable to resolve a dispute, Manu permits oaths (śapatha ). He does not make a clear distinction between an oath and an ordeal; at 8.114–8.116, for example, Manu gives the fire and water ordeals within the context of oaths. He does not employ the term divya , which become standard in later texts, to designate ordeals.
The most far-reaching innovation introduced by Manu is the list of vyavahārapadas , enunciating the acceptable legal bases for any lawsuit. Even though Kauṭilya, as we see in the chart given below, lists many of these, he does not give them the prominence or the formal structure found in Manu. They number eighteen, a sacred and common number in ancient India, and although later authors will not always abide by Manu’s list, the number eighteen will remain constant.
Writing and record keeping was central to the administration of the Kauṭilyan state, and every administrator was required to keep written records of their activities and present them to the central authority; even wardens of elephant forests were expected to keep records of their elephant census. Yet in both Kauṭilya and Manu, documents play a marginal role in evidence presented in court. Kauṭilya (3.1.19) uses an unusual term, deśa , to refer to legal documents, and it is used also by Manu (8.53–8.57) in a passage dependent on Kauṭilya (Olivelle 2005a : 46–50), but the terms lekhya and likhita , so common in later sources, are absent in their vocabulary. For these early jurists, living witnesses provided the most significant evidence for resolving disputes.
Even though the available evidence does not permit a firm conclusion, it appears quite likely that the emergence of the Gupta polity in the fourth century ce transformed court procedures and spurred parallel developments in jurisprudential thinking. These are reflected in four major legal texts produced during or shortly after the Gupta period, that is, between the fifth and seventh centuries ce : the Dharmaśāstras or smṛtis of Yājñavalkya, Nārada, Bṛhaspati, and Kātyāyana. As we have seen (Chapter 1 ), book two of Yājñavalkya that deals with legal procedure is closely dependent on the Arthaśāstra . The most obvious change in these post-Gupta documents is the prominence given to documentary evidence along with the use of technical terms for a legal document, most commonly lekhya and likhita , discussed below.
Jurisprudential reflections on legal procedure more generally also accelerated during this period. Yājñavalkya, for example, presents the legal procedure in a court proceeding as consisting of four feet or phases (catuṣpād : YDh 2.8). They are plaint (bhāṣā ), plea (uttara ), evidence (kriyā ), and verdict (nirṇaya ). All later jurists follow this fourfold scheme, even though, as we will see, they introduced some new elements and complexities into it.
The filing of charges by a plaintiff raises another central issue of jurisprudence: what are the venues for filing a lawsuit? We have seen the issue of courts addressed already by Kauṭilya and Manu. Later jurists bring in additional data, generally mentioning five judicial venues of increasing authority: family (kula ), guild (śreṇi ), company (gaṇa ), courts with appointed judges (adhikṛta ), and the king himself (NSm Mā 1.7). Appeals to higher courts were permitted from judgments rendered by lower courts. Other sources also include such venues as villages, cities, ascetic orders, traveling traders, and the like. 18 It is clear, however, that lower courts had jurisdiction over individuals within a defined geographical area (village, city) or members of its organization (guild, company). Jurists explicitly state that when there are disputes between individuals within a particular place or organization and outsiders, the trial must be conducted in a royal court. It is also clear that the legal procedures delineated in the legal literature pertain to royal courts, even though such basic procedures as rules of evidence may have been followed also in lower courts. Yet, procedures in courts of families and guilds may have been rather informal.
Later sources provide detailed accounts of the constitution of a royal court. Nārada (NSm Mā 2.15) sees the court as consisting of eight limbs: king along with his appointed official, assessors, legal treatise, accountant, scribe, gold, fire, and water. Other sources include the bailiff (sādhyapāla, sometimes simply called puruṣa: BṛSm 1.1.88). The late medieval text, Sarasvatīvilāsa (68), provides the seating arrangement of the court: king or judge facing the east, assessors to his right facing the north, accountant in front facing the west, and scribe to his left facing the south.
The law permitted the plaintiff to put the defendant under legal detention prior to filing charges in case there was a fear that he may flee or abscond. The technical term used for such detention is āsedha , which is used for the first time by Nārada (NSm Mā 1.42). There are, however, individuals who are exempt from such detention, and Nārada’s long list includes a person about to get married or to perform a ritual, farmers during harvest time, soldiers during a time of war, and sick people (NSm Mā 1.45–1.47). Once the charges are filed, the court summons the defendant generally by sending the bailiff along with the summons and the royal seal, and we see technical terms for such summons, āhvāna, used for the first time by Nārada (NSm Mā 1.47), and ākāraṇa by Bṛhaspati (BṛSm 1.1.82). 19
One other general issue in ancient Indian jurisprudence relates to legal representation and the role of lawyers. As Rocher (1969 ) in his exhaustive study of this subject has shown, we can safely conclude that there was no legal representation by professional lawyers in the courts of ancient India. A litigant was, however, permitted to be absent from court for a variety of reasons, including ill health, timidity, and preoccupation with other matters, and to appoint a representative. He is given the technical term prativādin by both Bṛhaspati (1.2.23) and Kātyāyana (89, 93), and in general, he is someone closely connected to the litigant, such as a brother or relative. The representation by a substitute is not permitted in serious cases such as murder and theft where the accused is expected to be physically present in court (BṛSm 1.2.23–1.2.25). It stands to reason, however, that there were legal experts in ancient India, especially with the development of an enormous legal literature and of a sophisticated jurisprudence, and that such individuals may have been consulted by parties to disputes. Rocher (1969 ) concludes that “professional lawyers did not exist” in ancient India, at least in the sense of legal experts hired by litigants to plead their cases in court.
The plaint and the plaintiff receive the most detailed treatment by jurists. Already Yājñavalkya (2.5) uses the technical term āvedayati for the initial complaint made by the plaintiff to the court. This complaint, called āvedana , is written down on a surface where it can be corrected and edited easily, such as a chalkboard or the ground spread with sand. The plaintiff is permitted to emend this charge sheet until the defendant has been summoned and he makes his plea. In the presence of the defendant, then, the emended āvedana is written down on a more durable surface such as a palm leaf. The plaint so written down is given the technical term bhāṣā , and the plaintiff is not permitted to alter it under the penalty of losing the case. There are, furthermore, detailed requirements regarding what a proper plaint should contain, including the names and residences of the litigants, the title of law under which the charge is filed, the dates, and details of the charges. When any required element is lacking, the plain becomes specious (pakṣābhāsa ) and the charges are dismissed. The charge also should be admissible, represent a true damage, and not be implausible. A frequently cited example of a frivolous lawsuit is the charge that a neighbor works in his house with light shed by the lamp in one’s own house.
We encounter in the writings of later jurists a number of terms for the plaint: abhiyoga, artha, pakṣa, pūrvapakṣa, pratijñā, sādhya , and the like. Many of these are derived from the metaphors used to describe litigation: military attack = abhiyoga ; debate = pakṣa and pūrvapakṣa ; logical proof = pratijñā and sādhya . The proliferation of technical terms for various aspects of court proceedings indicates a rising level of sophistication in jurisprudence. Bṛhaspati, for example, classifies lawsuits into those involving property or money (arthamūla ) and those resulting from an injury (hiṃsāmūla: BṛSm 1.1.9–1.1.10).
The plea or response (uttara ) of the defendant is likewise written down. The plea also has detailed requirements similar to those of the plaint, but in addition, it must address all the elements of the charge, and be unambiguous and comprehensible without explanations. 20 Otherwise, the plea is said to be specious or invalid (uttarābhāsa ) and it is rejected by the court. The court is permitted to grant a delay ranging from a day to a year (KātSm 148) to the defendant to give him sufficient time to draft a proper plea, unless the matter is urgent requiring an immediate remedy.
Jurists classify pleas into four types: denial (mithyā ), admission (satya, saṃpratipatti ), special plea (kāraṇa, pratyavaskandana ), and prior judgment (prāṅnyāya ). In the case of admission, the court proceedings end with the plaintiff winning the case; sources note that in this case the trial has only two feet. A denial places the burden of proof on the plaintiff. A special plea results when the defendant admits the plaintiff’s statement, but presents a reason why he is not guilty: for example, he may admit that he borrowed the money but has already returned it. Prior judgment results when the defendant claims that he has been acquitted by a court of the same charge brought previously by the same plaintiff. In both the latter kinds of plea, the burden of proof shifts to the defendant.
The third foot in Yājñavalkya’s classification consists of the presentation of evidence. The litigants are required to write down at the beginning of court proceedings the kinds of proof they will offer, and, in the case of witnesses, their names. These witnesses are called listed or appointed (kṛta, nibaddha ), even though under some circumstances others not so listed can be permitted by the court to testify.
Some sources, however, identify the third foot as the deliberation by the court assessors regarding which litigant has the burden of proof, technically called pratyākalita and sometime parāmarśa . 21 As we have seen, the burden of proof, which generally falls on the plaintiff, may shift to the defendant depending on the kind of plea he enters.
Post-Gupta jurisprudence, as we have seen, placed much greater emphasis on documentary evidence. Even though there are long and detailed discussions of live witnesses, 22 these sources do not add anything quite new or substantial to what we have seen in earlier jurists, although they give detailed lists of individuals who are, for a variety of reasons, disqualified from being witnesses (NSm 1.137–1.144). When it comes to documents, however, we have the emergence of a totally new branch of jurisprudence detailing the precise format required of any legal document (YDh 2.85), including the details of the transaction and the parties to it and their signatures, as well as the signatures of the witnesses and the scribe, if the document was not written by one of the parties.
Besides the three kinds of evidence we have looked at thus far, which are considered “human” evidence, another kind, the “divine,” was also permitted. This consisted of oaths and ordeals that the litigants could undergo to prove their innocence or their claims. Ordeals, although present marginally in Manu, come into prominence as a mode of proof in the writings of post-Gupta jurists, such as Yājñavalkya and Nārada. Yājñavalkya is the first author to use the technical term divya for an ordeal. 23 These jurists present a limited number of ordeals—generally, fire, water, balance, poison, and holy water. The ordeals were conducted according to strict procedures overseen by the court. The literature on ordeals expands in the medieval period with specialized treatises on the topic and a vastly expanding the number of ordeals. 24 The general principle of jurisprudence, however, is that divine evidence can be invoked only when human evidence is unavailable and only in cases involving serious charges.
The final step in the judicial process is the verdict (nirṇaya ). After the court has deliberated and evaluated the evidence presented in the third step, the chief judge (sabhāpati or prāḍvivāka ) announces the court’s verdict. It is clear from numerous statements by our jurists, however, that the actual decision is made by the three assessors (sabhya ), who are legal experts. 25 Thus, when there is a miscarriage of justice, our sources tell the king to punish the witnesses who gave false testimony, the litigant who may have suborned that perjury, and the assessors who may have taken bribes or not followed correct legal procedure. The chief judge is left out, thus indicating that in general, he is not held personally responsible when there is a miscarriage of justice in his court (YDh 2.305; NSm Mā 1.57).
There has been a controversy among comparative legal scholars as to whether court decisions in ancient societies were actually enforced by the judicial or civil authorities. If, as in many ancient societies, court proceedings were a kind of arbitration, then the implementation of the decisions was up to the litigants themselves. In the case of the legal literature of ancient India, however, it is very clear that courts were not simply arbitrators. Courts were authorized to actually punish or fine litigants with the use of the term daṇḍa , and compel the losing party to pay the amount claimed or compensation for losses suffered. The jurists frequently use the causative form of the verb “to give” (√dā )—dāpyaḥ, dāpayet —to indicate that the court or the king should force compliance by the losing party.
Given the burden of fines and court costs involved in bringing a formal lawsuit to a royal court, it was probable that most disputes were resolved privately and informally. The sources, however, do not look kindly on litigants who decide to make out-of-court settlements after filing a lawsuit. Bṛhaspati (BṛSm 1.3.42) is the first jurist to note this. He uses the technical term saṃdhi for this agreement between the litigants, and recommends the imposition of double the amount under dispute as a fine on both. Bṛhaspati (BṛSm 1.3.45), however, leaves open the possibility that in a difficult case where evidence is strong for both sides, the judge himself may encourage the parties to arrive at a mutually agreed settlement.
I have already alluded to the possibility of appeals from lower to higher courts. This principle is laid down for the first time by Yājñavalkya (YDh 2.308), who instructs the king to review any wrong decisions and to punish the court officials. Bṛhaspati (BṛSm 1.9.23) states this principle clearly:
When someone is not satisfied, however, even after a decision has been reached by a family and the like, the king should investigate how it was carried out and take up again for review one that has been badly conducted.
The sources, however, also allow for appeals to the king himself from a decision of a judge in a royal court, especially when the losing party suspects that the assessors were involved in a miscarriage of justice. Corruption was an ever-present danger, both in the judiciary and in the state bureaucracy more generally. Kātyāyana (KātSm 337) uses the term saṃpralobhakriyā in the context of bribing court officials. Whether through corruption or owing to wrong legal reasoning, when the assessors are found guilty, they are punished, and a new trial initiated. Yājñavalkya (YDh 2.305) states this clearly: “After subjecting lawsuits that have been wrongly tried to a new trial, however, the king should punish the assessors along with the victorious party with a fine that is twice the amount in dispute.”
The focus of Dharmaśāstras is on private litigation with the court acting as an impartial referee. In the famous dictum of Manu (8.44), “Neither the king nor any official of his shall initiate a lawsuit independently,” the principle is articulated that bars the state from initiating or suppressing a lawsuit. Yet, this is not the whole story. The state, for example, was permitted and even required to initiate lawsuits in the case of individuals who are especially vulnerable to exploitation, such as children and holy men. Indeed, the last of the eighteen titles of law, the miscellaneous (prakīrṇaka ), was sometimes viewed as containing offenses where the state may initiate legal proceedings (Lingat 1973 : 237). Bṛhaspati (1.29.1) states explicitly that prakīrṇaka contains issues that are to be taken up by the king himself. Other sources indicate that offenses bearing the technical terms aparādha, pada , and chala can be investigated and prosecuted by the king himself (Kane III: 264). The clearest statement on the duty of state officials to initiate legal proceedings to protect the interests of helpless and holy individuals is found in Kauṭilya’s Arthaśāstra (3.20.22):
In the case of gods, Brāhmaṇas, recluses, women, children, the aged, the sick, and the helpless, who may not (be able to) come (to the court) themselves, the Justices (dharmastha ) would initiate lawsuits on their behalf.
There is also a section in Dharmaśāstras dealing with the “eradication of thorns” (kaṇṭakaśodhana ), which is generally viewed as containing instructions for police action against criminal elements of society. Yet, as we have seen, the fourth book of the Arthaśāstra , which is the locus classicus for the treatment of this topic, clearly establishes a criminal court system presided over by a senior official called pradeṣṭṛ (magistrate) with powers of investigation and prosecution.
The medieval period saw the production of legal digests (nibandha ; Chapter 2 ) that contained large separate sections devoted to legal procedure: for example, Lakṣmīdhara’s Kṛtyakalpataru (KKT ) and Devaṇṇabhaṭṭa’s Smṛticandrikā (SmṛC ). There were, however, also specialized treatises devoted exclusively to legal procedure, such as Jīmūtavāhana’s Vyavahāramātṛkā , Vācaspati Miśra’s Vyavahāracintāmaṇi , and Varadarāja’s Vyavahāranirṇaya . Legal procedure is one area of law in which the volume and sophistication of Indian jurisprudence surpasses that of any other legal system of the ancient world.