The aphoristic texts on dharma contain some of the earliest reflections on legal procedure and the activities of the courts and judges in India. As we have already seen, the full integration of criminal and civil law and legal procedures into the science of dharma did not take place until Manu in the second century C.E. Yet the authors of the aphoristic texts on dharma did deal with some aspects of how disputes should be resolved, especially with respect to the kinds of evidence that should be entertained by judges. The discussions, however, are rudimentary and brief, and without a developed technical vocabulary.
Apastamba deals with legal procedure at the very end of his treatise. This discussion is embedded within his treatment of the king and his duties, especially concerning crime and punishment.
He begins his discussion with the technical term vivāde, in a legal dispute. However, the individuals charged with resolving such disputes are simply called people who are learned and elderly; no technical term is used for a judge. Further, no mention is made of the judicial role of the king, something that became the cornerstone of later jurisprudence within the science of dharma.
Neither does Apastamba use the technical term
sākṣin for a witness in a lawsuit; he simply refers to the
mukhya (chief), an ambiguous term perhaps referring to the lead witness. He does, however, refer to the ritual of swearing in the witnesses, which would become standard in later legal literature. The king is present at the swearing in, but he is not said to
have any specific role in the judicial process. This may well have been the earliest practice in ancient India, as we will see also in Kautilya, who identifies the justice (
dharmastha) as the official in charge of dispute resolution and the judiciary. A noteworthy point in Apastamba’s analysis of evidence is that only living witnesses are mentioned; not until the Gupta era, with the treatise of Yajnavalkya, did documents come into prominence as evidence. Apastamba uses the term
daiva (divine) for nonhuman kinds of evidence, perhaps oaths and ordeals, but does not spell these out. The term is related to
divya, which became the standard term for ordeals from the time of Yajnavalkya.
In a legal dispute, men who are learned, of good family, elderly, wise, and unwavering with respect to dharmas shall adjudicate, in doubtful cases investigating the matter through the evidence
1 and ordeals.
In the morning of an auspicious day and in the presence of a blazing fire, water, and the king, both sides should be asked to present their case and, with everyone’s approval, the chief witness should answer the question truthfully. Should he answer untruthfully, the king should punish him; and in addition hell awaits him after death. Should he answer truthfully, he will go to heaven and will receive the praise of all beings. (2.29.5–10)
Gautama has the most extensive discussion of legal procedure of all the early authors. He addresses this topic in two parts of his treatise,
chapters 11 and
13. Both are embedded within a broad discussion of the king and his duties that spans these chapters.
The first of the two (#1) begins with two significant words in the cryptic aphoristic (
sūtra) style:
tasya vyavahāraḥ. The pronoun
tasya (his) clearly refers to the king, who is the subject of this entire section. For the first time the king is presented as the person who should adjudicate lawsuits. The second term,
vyavahāra, as we have seen, often refers to legal procedure, but in this particular usage it appears to have a more specific meaning, namely, the process of arriving at a just resolution or verdict.
2 For Gautama, this process must be based on various textual traditions, the first of which is the Veda, once again used in the singular (see
GDh 1.1;
ch. 2.1). But even Gautama, who is wedded in a special way to the primacy of the Veda, cannot escape the reality confronting judges. He speaks of the diverse dharmas (in the plural) of regions, castes, and families, and how various social and commercial groups and associations have authority to enunciate and dispense laws with respect to their own members. Even when their lawsuits are brought before the king, he is
expected to ascertain the affairs from competent people of each group.
3 Gautama does not address the question of how all these diverse laws can be derived from the Veda. The discussion ends with the situation when the evidence provided cannot lead to a clear verdict. In such cases the king is instructed to consult with people (evidently Brahmans) learned in the Veda.
It is noteworthy that Gautama is the first author to use the term vyavahāra in the sense of a lawsuit and/or legal procedure. This meaning would be picked up by Vasistha (16.1) and from Manu onward became standard.
Gautama returns to the problem of evaluating conflicting evidence in the second section (#2), which deals specifically with the most central kind of evidence evaluated in an ancient Indian court of law, that is, living witnesses. This is the first passage in the history of the science of dharma where the technical term sākṣin is used for witness. Another technical term refers to the way witnesses are called to testify. At some point in the legal history of India the court required the litigants to present a list of their witnesses before the start of court proceedings. Gautama uses the technical term nibaddha (listed), which in Kautilya’s Treatise on Politics often means “written down” but, even outside of writing, refers to people who are designated. Only a few qualifications are given: there should be several witnesses, and they should be men who are upright and virtuous.
Witnesses are expected to testify only when they are requested to do so by the court. They are advised to tell the truth under penalties here and in the hereafter. The enumeration of such penalties may have been part of the oath administered to the prospective witnesses.
Gautama also is the first to use a technical term for a presiding officer in a court other than the king. He is called
prāḍvivāka.4 This is an ancient term and probably referred to a senior court official who interrogated witnesses. In this passage also, the term occurs within the context of questioning witnesses, which is to be done either by the king personally, who then is designated the
prāḍvivāka, or by a Brahman. Gautama also lists a group of officials within the court who become standard in later discussions. They are called
sabhya, court officials or assessors who assist the judge in arriving at a decision.
1
His judicial conduct shall be based on the Veda, the treatises on dharma, the Vedic supplements, subsidiary Vedas, and Purana.
5 The dharmas of regions, castes, and families are authoritative when they are not in conflict with the scriptures. Farmers, merchants, herdsmen, moneylenders, and artisans exercise authority over their respective groups. The determination of dharma is to be carried out after ascertaining the affairs from such people according to their respective authority.
Reasoning is the means of reaching a correct judgment. Having reached a conclusion in this way, he should decide the case equitably. If there is disagreement, he should reach a decision after ascertaining matters from those who are deeply learned in the triple Veda, for, it is said, acting in that way, he will attain prosperity. (11.19–28)
2
If there is disagreement, the determination of the truth is based on witnesses. They should be many, of blameless reputation with respect to their duties, worthy of the king’s trust, and neither friendly nor hostile toward either party. They may even be Shudras. A Brahman, however, should not be compelled to testify at the behest of a non-Brahman, unless he is listed.
Witnesses should not speak until they have been convened and questioned; and if they then refuse to speak, they commit an offense. If they speak the truth, they will go to heaven; if they do the contrary, they will go to hell. Even those not listed may be obliged to give evidence. No objection can be raised against a witness in cases involving violence or for what he may have said inadvertently. If the course of dharma is hindered, the guilt falls on the witnesses, the assessors, the king, and the perpetrator. According to some, the witnesses are to be placed under oath to speak the truth. For non-Brahmans it is done in the presence of divine images, the king, and Brahmans.
If a witness gives false testimony with regard to small farm animals, he slays ten;
6 with regard to cattle, ten times as many; with regard to horses, ten times as many as for cattle; with regard to human beings, ten times as many as for horses. If he gives false testimony with regard to land, he slays all; and if he steals land, he goes to hell. The penalty for false testimony with regard to land applies also to water, as also to sexual intercourse; the penalty in the case of farm animals applies also to honey and ghee; the penalty in the case of cattle applies also to clothes, gold, grain, and the Veda; and the penalty in the case of horses applies also to carriages. When a witness gives false testimony, he should be reprimanded and punished. It is not an offense to give false testimony if a man’s life depends on it, but not if it is the life of a very evil man.
The king shall be the adjudicator, or else a learned Brahman. The witness
7 shall appear before the adjudicator. If he is unable to appear, the adjudicator may wait for one year, but in cases affecting cows, draught oxen, women, and begetting children, he should summon the witness immediately, as also when the matter is urgent.
Of all the dharmas, speaking the truth before the adjudicator is the most important. (13.1–31)
As already noted, the text of Baudhayana’s work has come down to us in a mutilated state. So it is difficult to assess his discussion of legal procedure. The text as we have it has only a brief discussion solely focused on witnesses, set within a discussion of the duties of a king that spans 1.18–19. The section on witnesses opens abruptly, without any introductory comments about lawsuits or legal procedure.
Only a few points need to be noted here. Baudhayana lists several kinds of people who should not be called as witness. This list would be widely expanded by later authors. He also uses the term uddiṣṭa, which I have translated as “designated,” to refer to a witness who has been listed at the beginning of the trial, a term that is probably a synonym of nibaddha used by Gautama.
To gain the respect of the world, a witness should give testimony consistent with what he has seen or heard.
One-quarter of an adharma
8 falls on the perpetrator, one-quarter on the witness, one-quarter on all the court officials,
9 and one-quarter on the king.
10When a man who should be condemned is, in fact, condemned, however, then the king is freed from guilt and the court officials are released; upon the perpetrator falls the guilt.
Sharp-witted, he
11 should interrogate a designated witness vigorously in the following manner:
Whatever good you may have done from the day you were born until the day you will die, all that will go to the king, if you tell a lie.
Indeed, he slays three fathers and three grandfathers, as also seven generations of his descendants born or yet to be born, when a witness gives false testimony.
He, indeed, slays three grandfathers with false testimony concerning gold; five with false testimony concerning farm animals; ten with false testimony concerning cows; a hundred with false testimony concerning horses; a thousand with false testimony concerning men; and all with false testimony concerning land, when a witness gives false testimony.
Men of all four classes who have sons can be witnesses, except Vedic scholars, royals, wandering ascetics, and those who lack humanity.
12 If a witness abides by his recollection, he will receive praise from those in authority, whereas if he acts to the
contrary, he will fall into hell. Such a man should drink hot milk for twelve days or offer ghee in the sacred fire while reciting the
Kūṣmāṇḍa verses.
13 (1.19.7–16)
Vasistha’s discussions of legal procedure are disjointed and spread across several disparate chapters. He begins his discussion promisingly with the introductory statement, “Next, legal procedures [or perhaps lawsuits]” (atha vyavahārāḥ), in the plural, indicating that the meaning of the term may also cover different kinds of lawsuits. But his treatment of the topic is not well structured, with several other topics, such as property rights and the royal entourage, intervening between sections of his presentation of legal procedure.
He identifies two individuals authorized to conduct court proceedings: king and counselor (mantrin). The second is unusual, because in other sources a mantrin is never presented as a judge. Vasistha also uses the technical term sadas to refer to a court of law, and sadaskārya as court proceedings.
At one point an inserted verse (16.10) presents three types of evidence: documents, witnesses, and possession. Vasistha uses the term likhita for a document, and later also the term lekhya. These terms are not used for legal documents in early literature, including Manu. So there is some doubt whether these sections of Vasistha, which is a text that has undergone extensive revisions over the centuries, are original. The issue of enjoyment or possession (bhukti) as one way to establish ownership would be subject to intense debate by later authors.
1
Next, legal procedures. The king or counselor should run the court proceedings. When there is a dispute between two parties, he should not take one side. (16.1–3)
The dharmas of regions and the dharmas of castes and families—after inquiring into all these dharmas, the king should make the four classes adhere to the dharma proper to each. (19.7)
2
Documents, witnesses, and enjoyment, texts of recollection say, are the three means of proof. In this way an owner may reclaim property that had previously belonged to him. (16.10)
When there is a conflict regarding a house or field, neighbors provide the proof.
14 When neighbors are in disagreement, documents provide the proof. When conflicting documents are produced, the proof is based on the testimony of aged inhabitants of the town or village and that of guilds. Now, they also quote:
Ancestral property, what is bought, a pledge, what is received by a woman at her marriage, a gift, what is received for performing a sacrifice, property of reunited coparceners, and, the eighth, wages.
15Any of these is lost to the owner when it is enjoyed by someone continuously for ten years. But they also quote a verse to the contrary:
A pledge, a boundary, the property of a child, an open deposit, a sealed deposit, women, a king’s belongings, and the property of a Vedic scholar are not lost by being enjoyed. (16.13–18)
3
Next, witnesses. A Vedic scholar, a handsome man, a person of good character, a person who does good works, and a person who speaks the truth—these may act as witnesses. Or else, anyone at all may act as a witness for anyone.
For women, women act as witnesses; for the twice-born, twice-born individuals of equal rank; for Shudras, upright Shudras; and for the lowest-born, those of the lowest birth.
Now, they also quote:
A son is not obliged to repay the following: what his father owed as a surety or promised idly, debts he incurred gambling or drinking, and unpaid portions of fines or taxes.
Speak the truth, O witness! Your ancestors hang in suspense awaiting your statement, in accordance with which they will soar up or come crashing down.
Naked, blind, shaven-headed, and racked with hunger and thirst, a man who gives false testimony will have to go to his enemy’s house carrying a skull bowl to beg for almsfood.
When he gives false testimony concerning virgins, he slays five; concerning cattle, he slays ten; concerning horses, he slays a hundred; and concerning a man, he slays a thousand.
16A man may tell a lie at the time of marriage; during a sexual encounter; when his life is at stake; when there is a risk of losing all his property; and for the sake of a Brahman. These five types of lies, they say, do not entail loss of caste.
If during a trial someone gives evidence that is partial to one side, either to help a relative or for money, he will cause the ancestors of both his spiritual lineage and his natural family, even those who are in heaven, to fall. (16.27–37)
