In this chapter I deal with two theorists who, in contrast to the superficial treatment by the authors of the early aphoristic texts on dharma, grapple seriously and in detail with the issues relating to legal procedure: Kautilya and Manu.
It is fairly certain, as already noted, that Manu borrowed at least a major portion of his discussion of legal procedure from Kautilya. Manu’s presentation, however, is sufficiently different from Kautilya’s for us to conclude that he consulted other legal sources and/or created a new template for discussing legal procedure based on Kautilya’s earlier work.
Kautilya’s
Treatise on Politics underwent a major redaction sometime after Manu. The issue with regard to the sections on legal procedure found in the third book is whether they belong to the later redaction or are part of Kautilya’s original composition of the first century
C.E. Arguments can be made for both positions, but I think the bulk of these sections pre-dates Manu.
1 Thus, in Kautilya’s work we have the earliest comprehensive discussion of legal procedure, given that the data from the aphoristic texts on dharma are fragmentary and superficial.
The third book of Kautilya’s
Treatise on Politics, entitled
Dharmasthīyam (“On Justices”), devoted to law, legal procedure, and dispute resolution, begins with the constitution of a court (
selection #1). A few significant points emerge from its opening statement. First, the officials presiding over a legal trial are called
dharmastha. I have translated the term as
“justice”
2 mainly because this official is encountered both in this book and elsewhere in the treatise, 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” (
amātya), which must mean that there were justices of varying seniority, those of ministerial rank
3 being the most senior. Court sessions were held in various population centers, implying that people living in villages and outlying areas would have to travel to these locations to obtain legal remedy. Statements given below (#2), however, indicate that other kinds of courts, perhaps lower level and consisting of fewer judges, may have traveled to villages to conduct trials.
It is noteworthy that the word Kautilya uses for a lawsuit is artha, encountered also in later literature. This is the first time a technical term for a lawsuit is used. Unlike later authors, he does not use vyavahāra with that meaning.
Having used the term vyavahāra in the sense of a legally binding transaction, Kautilya proceeds immediately to define such a transaction, the only one subject to legal action in a court of law. The justices are entrusted with the task of judging the legal validity of transactions, and Kautilya lays down both detailed rules for their validity and factors that would make a transaction null and void.
Topic 58, embedded within the first chapter of book 3, deals explicitly with court procedures (
selection #2). Note the extensive use of technical terms by Kautilya, indicating a developed theory of court procedure. In most cases, these are the first uses of such technical terms in the extant literature. For legal terms in ancient Indian law, see Olivelle, Brick, and McClish 2015.
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.
āgama, title to property: 4.6.7, 8.
anuśiṣṭa, a case in which a verdict has been rendered: 4.9.15.
artha, lawsuit: 3.1.1.
avastha, surety: 3.1.17.
4
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: 3.1.32–33.
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, guilty plea: 3.11.25–26.
tārita, a case already tried: 4.9.15.
vāda, plaint: 3.1.19.
vādin, plaintiff: 3.1.17.
vedaka, plaintiff: 3.1.17.
The verb for countersuing also implies that abhi √yuj is the technical term for filing a lawsuit or suing a person. This shows the great advance in legal thinking between the authors of the aphoristic texts on dharma and Kautilya. All later authors were indebted to him for creating the beginnings of a technical vocabulary that enabled a scientific inquiry into court proceedings, legal procedure, and jurisprudence in general.
We also encounter here for the first time the judicial practice of writing down the plaint and the plea. Once reviewed and, if necessary, revised, these cannot be changed; any change will result in the loss of the suit. We also see the practice of court charges, especially when the court held sessions in outlying districts and the court officials had to travel to them. These expenses were borne by the defeated party. Another judicial practice, documented here for the first time, is the prohibition against another suit being filed against the defendant before the first suit has been resolved, and against the defendant filing a countersuit against the plaintiff, except in very specific situations.
The methods of proving one’s claim in a lawsuit and the process whereby the court arrives at a verdict are taken up in the eleventh chapter of book 3 (selection #3), on the nonpayment of debts (ṛṇādāna). Kautilya is unusual in dealing with this central topic of jurisprudence so late in his discussion. All later authors place this first, but the practice of discussing legal procedure within the section on the nonpayment of debts persisted.
Even though Kautilya introduces legal documents with the unusual term
deśa in the first chapter,
5 he ignores all other kinds of evidence in favor of living witnesses. Indeed, it appears that until about the time of the Guptas (circa fourth century
C.E.), legal documents played at most a subsidiary role in court proceedings. Even Manu features only witnesses in his discussions.
At the end of the first chapter of book 3 are two verses that appear to deal with four methods of arriving at a verdict (selection #4). These were probably added by a redactor at a date later than Manu, someone influenced by Manu’s openly pro-Brahmanical ideology.
6In the next selection (#5) Kautilya deals with the legal procedures to be followed in criminal cases brought before a court of criminal justice. These courts are called
kaṇṭakaśodhana (literally, eradicating thorns), and the magistrates who were in charge of them are called
pradeṣṭṛ. There has been a scholarly dispute as to whether there were criminal courts in ancient India, parallel to the civil courts that adjudicated disputes between individuals.
7 Although later legal texts within the science of dharma are silent on this point, it is abundantly clear from Kautilya’s work that there was a parallel court system for adjudicating criminal offenses.
Unfortunately, Kautilya does not provide many details about how the kaṇṭakaśodhana courts operated. My guess is that the details were omitted because many of the rules of procedure were similar to or identical with those followed in civil courts. There are, however, some passages that hint at a judicial procedure and confirm my assumption that the procedures in the two kinds of court were similar. In the eighth chapter of the fourth book is a statement that very much looks like the procedures of interrogation in a criminal case (see selection #5).
Kautilya also deals with situations when the proper legal procedures and court practices are not followed, and when judges and court officials become corrupt (
selection #6). Often investigation of corrupt court officials is conducted through the employment of spies.
Kautilya’s contribution to legal procedure is significant also because his is the only voice coming from a competing intellectual tradition, political science, while almost all the other authors dealing with this topic belong to the science of dharma. Political science as an intellectual tradition was located within or close to the centers of power, the chancery of the ruling elite, and the scholars of this tradition had different and more practical and political goals than their colleagues in the science of dharma. Had the tradition of political science remained alive and vibrant, the history of law in India might have had a different complexion. For more detailed explanations of the selections given here, see the notes in Olivelle 2013.
1
Justices of ministerial rank in groups of three
8 should conduct trials—in frontier posts, collection centers, district municipalities, and provincial capitals—of lawsuits arising from transactions.
They should invalidate transactions carried out in absentia
9 and those executed inside a house, at night, in the wilderness, by fraud, or in secret. Both the person executing it and the person who gets it executed receive the lowest seizure fine;
10 each of the witnesses individually receives half that fine. Those taking part in good faith, however, forfeit the object.
Transactions carried out in absentia shall be valid when a debt is secured with an absent pledge or when they are viewed as not blameworthy. Transactions executed inside a house shall be valid when they are connected with inheritance, consignments, deposits,
11 and marriage or contracted by secluded women and sick persons of sound mind. Transactions executed at night shall be valid when they are connected with forcible seizure, trespass, brawl, marriage, and royal command, and when they are contracted by individuals carrying out business in the early part of the night.
12 Transactions executed in the wilderness shall be valid when they are done by people moving about in the wilderness amid caravans, herds, hermitages, hunters, and bards. Transactions executed by fraud, moreover, shall be valid when they are among individuals with secret occupations; and transactions executed in secret shall be valid when they are done within a secret association.
13Transactions other than these shall not be valid, as also those executed by dependents, by a son living with his father, by a father living with his son, by a brother excluded from the family, by a younger son who is a coparcener, by a woman living with her husband or son,
14 by a slave or a person given as a pledge,
15 by one who is below or beyond the legal age,
16 and by a notorious criminal, renouncer, cripple, or someone who has fallen on hard times—except when they have been appointed to execute the transaction.
Even in such cases,
17 transactions executed by a person who is enraged, deeply afflicted, intoxicated, insane, or under someone else’s control shall not be valid. Those who execute such transactions, those who get them executed, and those who act as witness should be individually assessed the prescribed fine.
In each respective group,
18 however, all transactions shall be valid when they are executed at the proper place and time, by someone with proof of ownership, observing all the formalities, with valid documentation, and noting the appearance, distinctive marks, quantity, and quality of the items. And among these, the last document should be trusted, except in the case of a directive or a pledge.
19 (3.1.1–16)
2
[TOPIC 58: WRITING DOWN THE SUBJECT OF LITIGATION
20]
He
21 should first write down the year, the season, the month, the fortnight, the day, the time,
22 the court, and the debt, as also the region, village, caste, lineage, name, and occupation of the plaintiff and the defendant, after they have provided competent sureties. Then he should record the interrogations of the plaintiff and the
defendant according to the sequence of topics; and he should review
23 what he has recorded.
The man casts aside the plaint as recorded and moves on to another plaint; does not make a point made subsequently accord with what was stated previously; after challenging an unchallengeable statement of the opponent, remains obstinate; promises to produce a document,
24 but when told “Produce it,” does not produce it, or produces a defective document or something that does not constitute documentary evidence; puts forward a document different from the document specified; denies a significant statement in the document he has put forward, saying, “It is not so”; does not accept what has been ascertained through witnesses; secretly carries on a discussion with witnesses with regard to a document that is prohibited from being discussed—these are the reasons for loss of suit.
The fine for loss of suit is one-fifth of the amount. The fine for voluntary admission is one-tenth of the amount.
Wages for the men
25 are one-eighth.
26 Provisions for travel are assessed according to the prevailing prices. The losing party has to pay both of these.
An accused shall not bring a countersuit, except in the case of a brawl, a forcible seizure, a caravan, and an association.
27 An accused, furthermore, cannot be subjected to another lawsuit.
If, after receiving a response,
28 the plaintiff does not offer a reply on that very day, he loses the case; for it is the plaintiff who made the decision with regard to the lawsuit, not the defendant. If the latter does not offer a reply, he may be allowed three or seven days. Thereafter, he should be fined a minimum of three Paṇas and a maximum of 12 Paṇas. If he does not reply after three fortnights, he should impose the fine for loss of suit and pay the plaintiff’s claim from whatever property the defendant may possess, with the exception of the tools of his trade. He should do the very same to a defendant who absconds. The plaintiff loses the case the moment he absconds. (3.1.17–33)
3
[TOPIC OF WITNESSES]
It is best if an admission is made.
29 When there is no admission, however, witnesses provide the evidentiary proof, witnesses who are trustworthy, honest, or endorsed,
30 and a minimum of three; or, if approved by the parties, even two; but never one with regard to a debt.
31The following are forbidden: a brother of the wife, an associate, a dependent, a lender, a borrower, an enemy, a cripple, and a man subjected to judicial punishment;
as also those previously mentioned as ineligible to execute transactions (see
selection #1); the king, a learned Brahman, a village servant,
32 a leper, and a man with sores; an outcaste, a Candala, and one following a despicable profession; anyone who is blind, deaf, dumb, or self-appointed;
33 and a woman or an official of the king— except within their own groups. In cases concerning assault, theft, and sexual offenses, however, all these are allowed, except an enemy, a wife’s brother, and an associate. In the case of secret transactions, a single woman or man who has heard or seen it can be a witness, except the king and an ascetic.
Masters may testify for their servants, priests and teachers for their pupils, and a father and mother for their sons—and vice versa—without being forced to do so. When they sue each other, moreover, the superiors who lose the case shall pay one-tenth of the amount under litigation, and the inferiors one-fifth.
That concludes the qualification of witnesses. (3.11.25–33)
[EXAMINATION OF WITNESSES]
He should impanel the witnesses in the presence of Brahmans, a pot of water, and fire. In that context, to a Brahman he should say: “Speak the truth!” To a Kshatriya or a Vaishya: “May you not receive the fruit of your sacrifices and good works! A potsherd in hand, may you go to your enemy’s house to beg for almsfood!” and to a Shudra: “Any fruit of your meritorious deeds between your birth and death, all that will go to the king, and the sins of the king to you!—if an untruth is spoken. Punishment will also follow. Afterward, furthermore, facts as seen and heard will become known. Single-mindedly present the truth.” Those who fail to present it are fined 12 Paṇas after seven days; after three fortnights, they should pay the claim.
When the witnesses are divided, they should settle in favor of the party that has the support of the majority, or of those who are honest, or of those who have been endorsed; alternatively, they should adopt the middle course.
34 Or else, the king should take that property.
If the witnesses attest to an amount less than the claim, the plaintiff should pay the excess amount as a penalty. If they testify to an amount in excess of the claim, the king should take the excess.
With respect to anything that has been poorly witnessed or badly written down through the folly of the plaintiff, or where the person providing the affidavit has died, the ascertainment, after a thorough examination, should be based solely on witnesses.
“When through the folly of the witnesses, they give conflicting answers to questions with regard to place, time, and subject of the lawsuit, the lowest, the middle, and
the highest fine,
35 respectively, should be imposed on them”: so state the Ausanasas. “When false witnesses sustain a bogus lawsuit or overturn a truthful lawsuit, they should pay ten times that as a fine”: so state the Manavas. “Or, for those who, through their folly, break their trust, execution with torture”: so state the Barhaspatyas. “No,” says Kautilya; “for witnesses perforce must testify truthfully. Twenty-four Paṇas is the fine for those who fail to testify truthfully, half of that amount for those who do not speak.”
He should produce witnesses located not too distant in place and time; he should produce those who are far away or do not budge by means of a royal summons. (3.11.34–50)
4
Dharma, judicial process, custom, and royal decree: these are the four feet of the subject of a legal dispute; each succeeding one countermands each preceding one.
36Among these, dharma rests on truth, judicial process on witnesses, and custom on the consensus of people, while royal decree is a king’s command. (3.1.39–40)
5
[INTERROGATION OF AN ACCUSED IN A CRIMINAL CASE]
In the presence of the victim of the theft, as well as external and internal witnesses, he should interrogate the accused about his country, caste, lineage, name, occupation, wealth, associates, and residence. He should corroborate these facts 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.
A suspect may not be arrested after the lapse of three days, because questioning becomes infeasible—except when the tools are found on him.
For a man who calls someone a thief when he is not a thief, the fine is the same as that for a thief; so also for anyone who hides a thief.
When a person accused of being a thief has been inculpated because of enmity or hatred, he is to be considered innocent. For someone who keeps an innocent man in custody, the punishment is the lowest seizure fine.
37Against 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 a 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,
38 confess “I am a thief” even though he is not, because he fears the pain from torture. Therefore, he should punish only a man against whom there is convincing evidence.
He should not subject to torture a person who has committed a small offense, a child, an old person, a sick person, an intoxicated person, an insane person, a person wearied by hunger, thirst, or travel, a person who has eaten too much or whose food is still undigested, or a weak person. He should have such people spied on by persons of the same character, prostitutes, attendants at water booths, or those who give them advice, accommodation, or food. He should outwit them in this way, or in the manner explained in the section on the theft of a consignment.
39When there is likelihood of someone’s guilt, he should subject him to torture, but never a woman who is pregnant or within a month after giving birth—for a woman, however, half the normal torture or just oral questioning; for a Brahman, the employment of secret agents, as also for learned men and ascetics. When this rule is violated, both the torturer and the one who authorized the torture should be assessed the highest fine, as also for a death resulting from torture.
There are four kinds of conventional torture: six strokes with a stick, seven lashes with a whip, two suspensions, and the water tube. Beyond that, for those who have committed grave crimes there are: nine strokes with a cane, twelve lashes with a whip, two thigh bindings, twenty strokes with a Naktamala twig, thirty-two slaps, two scorpion bindings, two hangings, needle in the hand, burning one digit of a finger of a man after he has drunk gruel, heating in the sun for one day for a man after he has drunk oil, and sleeping during a winter night on a bed with points of Balbaja grass. These are the eighteen types of torture.
40The instruments used in it, its extent, the manner of inflicting it, its prognosis, and its restriction: these he should learn from the
Kharapaṭṭa.41 He should subject a person to torture on alternate days, and only to a single torture on any one day.
Someone who has previously committed a crime, someone who confesses and then retracts, someone in whose possession a portion of the loot is found, someone who has been arrested by reason of the act or the stolen goods, someone who embezzles from the king’s treasury, or someone subject to death by torture on the king’s orders—he should subject these to torture administered collectively, individually, or repeatedly. (4.8.1–26)
If he comes across the reported article, he should ask the man arrested with the article about his legal title to it, saying: “Where did you get this?” If he were to say: “I obtained it through inheritance. I received it—bought it, got it made, received it secretly as a pledge—from that individual. This is the place and the time of its acquisition. These are its price, size, distinguishing marks, and value,” he should be released when his legal title to it has been substantiated. If the person who lost the article were to establish the same, he should recognize that the article belongs to the person who possessed it first and longer, or who has a valid document of title; for even among quadrupeds and bipeds there is similarity in appearance and distinguishing marks— how much more among forest produce, ornaments, and wares produced with material from the same source and by the same manufacturer?
If he were to say: “This is something borrowed—something rented or received as a pledge; or a deposit; or a security; or something received for sale on commission— belonging to so-and-so,” he should be released when he is corroborated by the person who is to provide his exoneration. (4.6.7–11)
6
[ON CORRUPTION IN THE JUDICIARY]
After winning his confidence, a secret agent should tell a justice or magistrate: “A lawsuit has been filed against this relative of mine. Remedy this misfortune of his, and do accept this money.” If he does so, he should be sent into exile as a bribe taker. (4.4.6–7)
If a justice threatens, reprimands, drives out, or suppresses
42 a man who has filed a lawsuit, he
43 should impose on him the lowest seizure fine;
44 if there is a verbal assault, the fine is doubled. If he questions someone who should not be questioned; does not question someone who should be questioned; or after questioning brushes it aside; or if he tutors, reminds, or prompts him, he should impose on him the middle seizure fine. If he does not request a document that needs to be produced, requests a document that need not be produced, lets the case proceed without documentary evidence, dismisses it under some pretext, drives away by delays someone who becomes tired, rejects a statement properly presented, assists witnesses with their memory, or takes up a case that has already been adjudicated and for which a verdict has been rendered, he should impose on him the highest seizure fine. In the case of a repeat offense, the fine is doubled and he is removed from office.
If the court clerk does not write down what was said, writes down what was not said, writes correctly what was badly said, writes incorrectly what was correctly said, or alters a clear meaning, he should impose on him the lowest seizure fine, or else a punishment corresponding to the crime.
If a justice or a magistrate imposes a monetary punishment on a person who does not deserve punishment, he should impose on him a fine equivalent to double the amount he imposed; or eight times the amount by which it is less or more than the prescribed fine. If he imposes corporal punishment, he should himself suffer corporal punishment; or double the standard reparation. Alternatively, when he dismisses a truthful lawsuit or sustains a bogus lawsuit, he should pay eight times that
45 as a fine. (4.9.13–20)
Manu was writing a century or so after Kautilya, and it appears that he had before him a copy of the original version of Kautilya’s
Treatise on Politics as he composed his sections on the duties of a king (
ch. 7) and on legal procedure (
chs. 8–
9).
46 Although dependent on Kautilya, Manu introduced several new elements into his discussion, especially in the division of the titles of law into eighteen and in their order of enumeration.
Manu comprehensively integrated the discussion of statecraft, judiciary, and legal procedure, which were probably within the domain of political science previously, within the discourse of the science of dharma. He also espoused more aggressively the ideology of Brahmanical exceptionalism. The Brahman was a privileged member of society, and the king succeeded only if he recognized Brahmanical privileges and followed the advice of learned Brahmans. Manu also states that judges in courts of law have to be Brahmans, thus placing the Brahman at the very heart of the legal system.
Selection #1 includes several noteworthy innovations. First, according to Manu, the judicial authority of the state rests very clearly in the king; there is no separate or independent judiciary like the one advocated by Kautilya. When the king is unable to perform this function, he may delegate his judicial authority to another person or persons, who then function as judges in his place. Although this was probably not a new ideology, this is the first time in the history of Indian jurisprudence that it is spelled out so clearly. The only parallel is Vasistha, who merely states that the king or his counselor should adjudicate lawsuits (
ch. 9.4: #1), putting the two on an equal level. Second, a plaintiff must identify one of the eighteen subjects under which he is filing his lawsuit. Finally, the standards applied in adjudicating lawsuits are twofold: those of the region and those given in what Manu calls
śāstra. I have translated the term as “legal texts,” but it could have a broader meaning, including the Veda. In any case, it is significant that the standards of the region are mentioned first; these must refer to the practice (
ācāra) that we discussed within the epistemology of law. The Sanskrit for “standards” is
hetu, which refers broadly to the standards of proof required in a particular dispute.
In the passages in
selection #2, we find an even clearer articulation of the principle that judicial power is vested solely with the king. It is he who de jure exercises judicial power, even though in practice he delegates this power to professional judges.
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 Brahman,” in contrast to the technical terms
dharmastha (justice or judge in civil cases) and
pradeṣṭṛ (magistrate in criminal cases) used by Kautilya. The term
prāḍvivāka that Manu uses in the context of examining witnesses
47 most likely refers to a court official designated to interrogate witnesses rather than to a judge, even though in medieval legal literature this term is used also with reference to a presiding judge.
Another legal principle articulated by Manu in these passages is that the state, whether the king himself or an officer of his, cannot initiate a lawsuit. This clearly applies to civil suits, and there are exceptions made with regard to particular people and institutions on behalf of whom the state is authorized to intervene.
Finally, cases are adjudicated not according to some abstract or universal law or dharma but in keeping with the local customs and norms, once again undermining the epistemological principle articulated in the abstract that all law is derived from the Veda.
In
selection #3 is a passage that is a paraphrase and versification of a section from Kautilya’s treatise (3.1.19;
ch. 10.1: #2) given above. This passage of Manu is the only place in the entire literature of the science of dharma where the term
dharmastha is used with respect to a judge, indicating that Manu is here following even the vocabulary of Kautilya. This is also the only place where Manu alludes to documents within the context of evidence, again using the technical term
deśa encountered in Kautilya.
Manu has one of the longest and most detailed accounts of witnesses and their testimony, and of how the court is expected to assess the veracity of that testimony (
selection #4). No person is qualified to give testimony simply because he has knowledge of the issues before the court. Within a patriarchal and highly hierarchical social system, only certain individuals belonging to certain segments of society were so qualified, except in very special situations. Certain special individuals are excluded because of their very status within society, such as the king, learned Brahmans, and religious professionals. The social status of the litigants also has an impact on who is permitted on the witness stand.
Witnesses must be listed by the plaintiff and the defendant at the very start of the trial, 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. Manu points to factors, including the demeanor of a witness, that may indicate false testimony. Perjury is a serious crime, and Manu specifies various penalties for false witnesses, even though under some conditions, such as death penalty cases, giving false testimony is permitted.
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 8.114–16 he describes the fire and water ordeals within the context of oaths. He does not employ the term divya, which became standard after Yajnavalkya, to designate ordeals.
A verdict that is based on perjured testimony should be declared null and void and must be set aside. Manu (8.117) uses several technical terms in this context:
kṛta to refer to a verdict that has been duly rendered in a court;
akṛta to refer to a verdict that is overturned; and
nivartayati for the act of a superior court that sets aside a previously rendered verdict.
481
When the king is going to try lawsuits, he should enter the court modestly accompanied by Brahmans and counselors
49 who are experts in policy. Seated or standing there, dressed in modest clothes and ornaments, and raising his right hand, he should look into the cases of the plaintiffs every day in accordance with the standards prevalent in the region and those specified in the legal texts, lawsuits that fall individually under the eighteen avenues of litigation.
Of these, (i) the first is nonpayment of debts; (ii) deposits; (iii) sale without ownership; (iv) partnerships; (v) nondelivery of gifts; (vi) nonpayment of wages; (vii) breach of contract; (viii) cancellation of a sale or purchase; (ix) disputes between owners and herdsmen; (x) the dharma on boundary disputes; (xi) verbal assault; (xii) physical assault; (xiii) theft; (xiv) violence; (xv) sexual crimes against women; (xvi) dharma concerning husband and wife; (xvii) partition of inheritance; and (xviii) gambling and betting. These are the eighteen subjects on which litigation may be instituted in this world.
These are the areas in which, for the most part, disputes among people arise; and the king should decide their cases based on the eternal dharma. (8.1–8)
2
When he becomes tired of trying lawsuits filed by people, he should install on that seat a leading minister who knows dharma, is wise and self-disciplined, and comes from an illustrious family. (7.141)
When the king does not try a case personally, however, he should appoint a learned Brahman to do so. Entering the main court itself accompanied by three assessors, he should try the cases brought before the king, either seated or standing. The place where three Brahmans versed in the Vedas and a learned officer of the king sit, they call the court of Brahman.
When dharma, pierced by adharma,
50 comes to the court for redress and the court officials do not pluck out that dart from him, then they are themselves pierced by it. A man must either not enter the court or speak candidly; by refusing to speak or by speaking deceitfully, he commits a sin. When dharma is struck by adharma and truth by untruth, while the court officials remain idle onlookers, then they are themselves struck down. Stricken, dharma surely strikes back; defended, dharma defends. Therefore, never strike at dharma, lest dharma, stricken, wipe us out. Lord Dharma is truly the bull, and a man who impedes him the gods call a lowborn.
51 Therefore, one should never trample dharma. Dharma is the only friend who follows a man even in death, for all else perishes along with the body.
One-quarter of an adharma falls on the perpetrator, one-quarter on the witness, one-quarter on all the court officials, and one-quarter on the king. When 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.
Let a king, if he so wishes, get someone who is a Brahman only in name to interpret dharma, or even someone who simply uses his birth to make a living, but under no circumstances a Shudra. When a Shudra interprets dharma for a king, his realm sinks like a cow in mud, as he looks on helplessly. The entire realm, stricken with famine and pestilence, quickly perishes when it is teeming with Shudras, overrun by infidels, and devoid of twice-born people.
Ascending the seat of dharma with his body covered and his mind composed, he should pay homage to the guardian deities of the world and open the trial. Paying attention only to these two—what is and what is not in accord with the provisions of polity, and what is and what is not in accord with the dharma—he should try all the cases brought by litigants in the order of their social class.
He should discover the internal disposition of men by external signs—voice, color, expression, bearing, eyes, and gestures. Inner thoughts are discerned by the bearing, expressions, gait, gestures, and manner of speaking, and by changes in the eyes and face. (8.9–26)
He who knows dharma should examine the dharmas of castes and regions, as also the dharmas of guilds and the dharmas of families, and only then settle the dharma
specific to each. Even men living far away endear themselves to the world when they stick to and carry out their specific activities.
Neither the king nor any official of his shall initiate a lawsuit on his own; nor shall he in any way suppress an action brought before him by someone else.
As a hunter traces the location of an animal by the trail of blood, so a king should trace the location of dharma by deductive reasoning. When he is conducting a judicial proceeding, he should pay close attention to the truth, the object of the suit, himself, the witnesses, the place, the time, and the appearance.
He should ratify the acknowledged practices of virtuous men and righteous twice-born individuals, if such practices do not conflict with those of a particular region, family, or caste. (8.41–46)
3
When the debtor, told in court to pay up, denies the charge, the plaintiff should produce a document or offer some other evidence.
When the plaintiff produces something that is not documentary evidence; produces and then disavows it; does not realize that his earlier points contradict the ones he makes subsequently; states his case and then backs away from it; does not acknowledge under questioning a point that has been clearly established; secretly discusses with witnesses a document that is prohibited from being discussed; objects to a question clearly articulated; retreats; does not speak when he is ordered “Speak!”; does not prove what he asserts; and does not understand what goes before and what after—such a plaintiff loses his suit. When a plaintiff says, “I have people who know,” but when told “Produce them” does not produce them, the justice should declare him the loser for these very reasons.
If the plaintiff fails to present his case, he is subject to corporal punishment and a fine in accordance with dharma; and if the defendant fails to respond within three fortnights, he loses the case in the eyes of dharma. The amount that one man falsely denies and the amount that the other falsely claims—the king should impose a fine equal to double those amounts on those two men proficient in adharma.
When a man who has given a surety is questioned by a creditor and denies the charge, he may be convicted through the testimony of at least three witnesses given in the presence of the king and Brahmans. (8.52–60)
[QUALIFICATIONS OF WITNESSES]
I will now explain what sorts of individual creditors may call as witnesses in legal proceedings and how they should be made to speak the truth.
Householders, men with sons, natives of the region, Kshatriyas, Vaishyas, and Shudras, when they are called by the plaintiff, are competent to give testimony, and not just anybody, except in an emergency. Trustworthy men of all social classes may be called as witnesses in lawsuits, men who know dharma in its entirety and are free from greed; individuals different from these should be excluded.
Individuals who have a stake in the suit; individuals close to the litigants; their associates and enemies; individuals with a criminal record; the very sick; and men of ill repute—these must not be called as witnesses. The king may not be called as a witness, nor should the following: an artisan; a performer; a Vedic scholar; an individual bearing the insignia of a religious profession; one who has severed all attachments; a totally subservient individual; a reprehensible person; a bandit; a criminal; an old person; a child; a single person;
52 an individual of the lowest birth or with impaired organs; someone in distress; an intoxicated or insane person; someone tormented by hunger or thirst, or suffering from fatigue; a lovesick or angry person; and a thief.
For women, women shall give testimony; for the twice-born, twice-born individuals of equal rank; for Shudras, upright Shudras; and for the lowest-born, those of the lowest birth.
53 Anyone who has personal knowledge may give testimony for litigants when the event has taken place inside a house or in the wilderness, or in a case involving bodily harm. When there is no one else, even a woman, a child, an old man, a pupil, a relative, a slave, or a servant may give testimony.
He should recognize the trembling in the voices of children, old men, and sick persons, as also of individuals with deranged minds, when they give false testimony.
He must not investigate
54 the witnesses in all cases of violence, theft, sexual crimes, and verbal and physical assault. (8.61–72)
[ASSESSING TESTIMONY]
When witnesses are in disagreement, the king should accept the testimony of the majority; when they are equally divided, the testimony of those distinguished by superior qualities; and when men with superior qualities are in disagreement, the testimony of Brahmans.
Testimony is valid when it is based on what the witness himself has seen or heard. When a witness speaks truthfully with respect to that, he does not suffer any loss of merit or wealth. If, in a court of Aryas, a witness says something deceitfully contrary to what he has seen or heard, after death he will plunge headlong into hell and suffer the loss of heaven.
When a person, even though he is not listed as a witness in the plaint, has seen or heard anything pertaining to the trial and is questioned during the trial, he also should testify in accordance with what he saw or heard.
Even one man free from greed may be appointed as a witness, but never women, even if they are many and honest, because the female mind is unsteady; nor even other men tainted with defects.
Only what witnesses testify to in a forthright manner should be accepted as valid in a trial; anything different that they may testify to deceitfully for the sake of dharma has no validity.
55 (8.73–78)
[QUESTIONING OF WITNESSES]
When the witnesses have gathered in the court, the adjudicator should examine them in the presence of the plaintiff and the defendant, exhorting the witnesses in the following manner:
What you know about any mutual transaction between these two individuals pertaining to this lawsuit—state all that truthfully, for you are the witnesses in this matter. When a witness speaks the truth during his testimony, he will obtain magnificent worlds, as well as unsurpassing fame here below; such speech is honored by Brahma. When he speaks an untruth during his testimony, he will be bound tightly by the fetters of Varuna and lie helpless for one hundred lifetimes; therefore, he should speak the truth during his testimony. By truth, the witness is purified; by truth, dharma is increased. Witnesses of all social classes, therefore, should speak only the truth. For the self alone is the witness of the self; the self, likewise, is the refuge of the self. Do not disdain your own self, the supreme witness of men. Evildoers undoubtedly think, “No one sees us,” yet gods see them clearly, and so does their own inner self. Heaven, earth, waters, heart, moon, sun, fire, Yama, wind, night, the two twilights, and dharma—these know the conduct of all embodied beings.
In the presence of king and Brahmans
56 and in the forenoon, the adjudicator, after purifying himself, should ask the twice-born individuals, who have purified themselves and are facing the north or the east, to give truthful testimony. He should
question a Brahman, saying, “Speak”; a Kshatriya, saying, “Speak the truth”; a Vaishya, with a reference to cows, seeds, and gold;
57 but a Shudra, with a reference to these sins that cause loss of caste:
The worlds to which tradition consigns a murderer of a Brahman, a killer of a woman or child, a betrayer of a friend, and an ingrate—those worlds will be yours, if you testify falsely. Whatever good deeds you have done since birth, dear fellow, all that will go to the dogs, if you testify dishonestly. “I am all alone”—should you think like that about yourself, good man, there dwells always in your heart this sage who observes your good and evil deeds! This god, Yama the son of Vivasvat, dwells in your heart. If you have no quarrel with him, then you do not have to go to the Ganges or the Kuru land.
58 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. If anyone gives a false answer when questioned at a judicial investigation, in blind darkness that sinner will fall headlong into hell. A person who goes to a court and testifies to what is contrary to the facts or to what he has not seen is like a blind man, eating fish along with the bones. When his discerning inner self remains unperturbed as a man is giving testimony—gods know of no man superior to him in this world. Listen, my friend, to an orderly enumeration of how many relatives of his a man kills when he gives false testimony in a particular case. He kills five by false testimony concerning livestock; ten, by false testimony concerning cows; one hundred, by false testimony concerning horses; and one thousand, by false testimony concerning a human being. He kills the born and yet to be born by giving false testimony concerning gold; and he kills all by false testimony concerning land—never give false testimony concerning land. False testimony concerning water, they say, is similar to that concerning land; the same is true of false testimony concerning the sexual enjoyment of women and concerning all gems, whether they are aquatic or lapidary. After taking careful note of all these evils resulting from false testimony, tell the truth forthrightly just as you saw or heard.
He should treat Brahmans who are cattle herders, traders, artisans, performers, servants, or moneylenders just like Shudras. (8.79–102)
[EXCUSABLE FALSE TESTIMONY]
When a man, even though he knows the truth, gives evidence in lawsuits contrary to the facts for a reason relating to dharma, he does not fall from the heavenly world; that, they say, is divine speech. When telling the truth will result in the execution of a
Shudra, Vaishya, Kshatriya, or Brahman, a man may tell a lie; for that is far better than the truth.
Such persons, performing the highest expiation for the sin of false testimony, should offer to the goddess Sarasvati oblations of milk rice dedicated to the goddess of speech. Alternatively, such a person may offer an oblation of ghee in the fire according to rule, reciting the
Kūṣmāṇḍa formulas, the verse to Varuna: “Untie, Varuna…,” or the three formulas addressed to water.
59 (8.103–6)
[FAILURE TO GIVE EVIDENCE]
When a man who is not sick fails to testify for three fortnights in cases pertaining to debts and the like, he becomes liable for the entire debt and is fined one-tenth of the total. (8.107)
[FALSE TESTIMONY]
When an illness, a fire, or the death of a relative is seen to afflict a witness within seven days of his testimony, he should be compelled to pay the debt and a fine. (8.108)
Every case where perjured testimony has been given should be declared a mistrial, and any judgment rendered there should be annulled. Testimony given through greed, delusion, fear, friendship, lust, anger, ignorance, or immaturity is considered false. (8.117–18)
[PUNISHMENT FOR PERJURY]
I will explain in order the specific punishments for a person who gives false testimony for any one of these reasons.
For giving false testimony through greed, he should be fined 1,000 Paṇas; through delusion, the lowest fine;
60 through fear, double the middle fine; through friendship, four times the lowest fine; through lust, ten times the lowest fine; through anger, three times the highest fine; through ignorance, a full 200 Paṇas; and through immaturity, just 100 Paṇas. These are said to be the punishments for false testimony prescribed by the wise in order to prevent the miscarriage of dharma and to arrest adharma.
When individuals of the three classes give false testimony, a righteous king should first fine them and then execute them; a Brahman, on the other hand, should be sent into exile. (8.119–23)
When two persons are litigating matters for which there are no witnesses, however, and he is unable to discern the truth, he should discover it even by means of an oath. Great sages, as well as gods, have taken oaths to settle a case. Vasistha
61 also made an oath before King Paijavana.
A wise man must not take an oath falsely even with regard to a trifling matter, for by taking an oath falsely, he comes to ruin here and in the hereafter. Taking an oath is not a sin causing loss of caste when it is made in connection with lovers, marriages, fodder for cows, or firewood, or to protect a Brahman.
He should make a Brahman swear by the truth; a Kshatriya by his conveyance and weapons; a Vaishya by his cattle, seeds, and gold; and a Shudra by all the sins causing loss of caste.
Alternatively, he may make the person carry fire, stay submerged in water, or touch separately the heads of his sons and wife. When the blazing fire does not burn a man, the water does not push him up to the surface, and no misfortune quickly strikes him, he should be judged innocent by reason of his oath.
62 Long ago when Vatsa was accused by his younger brother, Fire, the world’s spy, did not burn a single hair of his because he told the truth.
63 (8.109–16)
[ENJOYMENT]
When an owner looks on silently as something is being enjoyed by others in his presence for ten years, he is not entitled to recover it. If something is enjoyed within his own locality and he is neither mentally incapacitated nor a minor, he loses any legal right to it; the user is entitled to that property.
Pledges, boundaries, assets of minors, open deposits, sealed deposits, women, and the possessions of the king and of Vedic scholars are never lost on account of enjoyment. (8.147–49)
