Jurisprudential scholarship, especially that relating to legal procedure, advanced dramatically during the period of the Gupta empire, beginning roughly in the fourth century
C.E. This was also the time when Kautilya’s
Treatise on Politics gained fame and popularity and came to be ascribed to Canakya, the legendary prime minister of Candragupta, the founder of the Maurya Empire and the grandfather of Asoka.
1 This period appears to have been a golden age of jurisprudential scholarship. Of the many texts that may have been produced during this time, only two are preserved in the manuscript tradition, those ascribed to Yajnavalkya and Narada. Only fragments of the two other major texts, those of Brihaspati and Katyayana, which also demonstrate clear advances in legal thought especially with respect to legal procedure, are available in the form of citations in medieval legal digests,
2 some of which will be found in
chapter 13.
In spite of the advances made by these authors, they remain indebted to the two scholars who lived several centuries before them: Kautilya and Manu. Many of the texts produced during the Gupta period can be viewed as commentaries on and developments of their legal thought.
The historical importance of Yajnavalkya’s treatise rests principally on its analysis of legal procedure. As I have noted, Yajnavalkya divides his work into three sections, the second of which deals with courts and dispute resolution and is called vyavahāra.
We notice great progress in his discussion of legal procedure over that of Manu, who preceded Yajnavalkya by two or three centuries. Yajnavalkya had before him two texts, those of Manu and Kautilya. He drew upon both in composing his text, sometimes reproducing their discussions verbatim. But in legal procedure, Yajnavalkya represents an advanced level of jurisprudence; brevity and precision of language characterize his discussions. His fame is also due to a commentary on his work written in the twelfth century by Vijnanesvara, which the British colonial rulers and their courts erroneously thought was “law” in most of India, except for Bengal. As Lingat (1973: 98) observes: “Of all the
smṛtis which have come down to us that of Yajnavalkya is assuredly the best composed and appears to be the most homogeneous, even though it may have been made up of elements borrowed from various sources. We are struck, especially if we have just read Manu, by the sober tone, the concise style, and the strictness with which the topics are arranged.” This is true especially in his section on legal procedure. In the context of evidence, for example, Yajnavalkya is the first to give prominence to documents and ordeals, using for the first time the technical terms
lekhya and
divya.Yajnavalkya sees the entire legal process of the court, from the initial filing of the complaint until the court’s final verdict, as divided into four steps, which he calls feet (#2). The selections that follow present clear descriptions of these steps, expect perhaps the verdict, which is dealt with cursorily and in the context of an appeal from an unjust court proceeding. There is an expansion of the technical vocabulary noted in Kautilya’s Treatise on Politics. Here is a sampling:
abhiyoga and pratyabhiyoga: accusation or suit, and countersuit
arthin and pratyarthin: the plaintiff and defendant
āvedita: the initial charges filed with the court
bhāvita: proved, convicted
divya: ordeal
hīna: defeated in the lawsuit, already mentioned in MDh 8.57
kriyā: evidence
lekhya: documentary evidence
nihnava: plea of denial
nirṇaya: verdict
pratijñā: the plaint
prativādin: plaintiff and defendant
pūrvavādin, pūrvapakṣa: plaintiff, the person who has the burden of proof
pūrvāvedaka: the person filing the charges, plaintiff
sapaṇa: a suit that involves a stake or wager
As noted earlier (
ch. 5.1), the text of Yajnavalkya used here is from my forthcoming critical edition to be published in the Murty Classical Library of India by Harvard University Press. That edition broadly follows the text established by the ninth-century commentator Visvarupa (see
ch. 7.2) and follows his numbering of the verses.
1
[THE KING’S ROLE AS JUDGE]
When a king properly punishes those who deserve to be punished and executes those who deserve to be executed, he has performed sacrifices at which choice sacrificial gifts have been given. Reflecting thus on the rewards that are individually equal to those of a sacrifice, a king should try lawsuits by himself every day, surrounded by the assessors. (1.354–55)
When families, castes, guilds, associations, and even provincial groups have lapsed from the dharma proper to them, the king should discipline them and establish them on the right path. (2.34)
2
[CONSTITUTION OF THE COURT]
The king should try lawsuits accompanied by learned Brahmans, in conformity with treatises on dharma and free from anger and greed.
The king should appoint as court officers individuals who possess erudition and Vedic learning, belong to distinguished families, speak the truth, and treat both friend and foe alike. When the king cannot try lawsuits because of the pressure of work, however, he should assign a Brahman who is learned in every facet of dharma, along with assessors.
Assessors who act contrary to texts of recollection or in a similar manner
3 out of love, greed, or fear should be fined individually a sum equal to twice the amount under litigation. (2.1–4)
[GENERAL RULES OF LEGAL PROCEDURE]
If someone who suffers an injury at the hands of others in a manner contrary to texts of recollection or normative practice reports it to the king, it is indeed a subject of litigation.
4In the presence of the defendant, the charge should be written down exactly as reported by the plaintiff, recording the year, month, fortnight, day, name, caste, and the like. After the defendant has heard the plaint, his plea should be written down in the presence of the plaintiff. Immediately thereafter, the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down. If that is successful, he obtains success; the opposite, if it is otherwise.
In litigations, this legal procedure has been shown to have four feet.
5Until the accusation has been disposed of, the defendant may not file a counteraccusation against the plaintiff; no one else may file an accusation against the accused; and what has been stated may not be altered. He may, however, file a counteraccusation in cases involving brawls and violence.
From each of the two parties a surety should be secured capable of satisfying the verdict.
When, after a denial, the charge against him has been proven, he should give the sum claimed and an equal amount to the king. A man who files a false accusation should pay twice the sum listed in the accusation.
In cases involving violence,
6 theft, assault, cows, calumny, and an urgent matter,
7 as well as one involving a woman, he should make the defendant enter a plea immediately; in other cases a delay may be allowed as desired.
A person who moves from place to place; who licks the corners of his mouth; whose forehead perspires; whose face changes color; who speaks in a stumbling and stuttering manner; whose speech is inconsistent and rambling; who is unresponsive when spoken to or looked at; who bites his lips; and who displays a change in his natural condition through acts of mind, speech, and body—in filing an accusation or giving testimony, such a person is declared to be deceitful.
When someone seeks to prove a doubtful legal matter independently,
8 absconds, or does not say anything when he is summoned, he is said to be both defeated and subject to punishment.
When witnesses are available for both parties, the witnesses of the appellant are to be deposed first; but if the plaintiff’s claim has been superseded, then the witnesses of the respondent.
9If the litigation includes a wager, then the court should make the defeated party pay both the fine and the wager, as well as return the sum claimed to the creditor.
10Discarding subterfuge,
11 the king should conduct judicial proceedings in accordance with the facts; for even what is factual that is not properly presented may suffer defeat through a judicial proceeding.
In case someone denies a written plaint containing several parts and the plaint is later proven with regard to one of its parts, the king should make him pay all the claims; he may not, however, recover a claim not recorded in the plaint.
12 (2.5–20)
3
[RULES OF EVIDENCE]
When there is conflict with a text of recollection, however, an edict has greater force within the context of legal procedure, and a treatise on dharma has greater force than a treatise on politics—that is the rule.
13Document, enjoyment,
14 and witnesses, it is declared, constitute evidence; and, in the absence of any one of these, one of the ordeals.
In all litigations,
15 evidence relating to a later transaction has greater force; in the case of a pledge, gift, or purchase, however, evidence relating to an earlier transaction has greater force.
16When a man looks on without speaking up while his land is being enjoyed by someone else, he loses his title to it in twenty years; in the case of movable property,
17 in ten years—with the exception of a pledge, a boundary, an open deposit, and the property of the mentally incompetent and children, as well as a sealed deposit and the property of the king, women, and Vedic scholars. A man who purloins a pledge and so forth
18 should indeed be made to give the property to the owner and to the king a fine equal to its value or proportionate to his ability.
Title is more authoritative than enjoyment, except when it has come down through successive generations. Even title has no force at all in the absence of even a modicum of enjoyment. When a man who has drawn up the title is sued, however, he should produce it; but not his son or his son’s son—in that case, enjoyment has greater force. Enjoyment constitutes probative evidence when there is clear title; enjoyment without a clear title does not represent probative evidence. If the person sued happens to die, his heir should produce it—in that case, enjoyment is no proof when it has been carried out without proper title. (2.21–30)
[GRADATION OF LAW COURTS]
The king, officials authorized to adjudicate lawsuits, associations, guilds, and families—of these, each preceding one should be recognized as having greater authority with respect to legal proceedings among men. (2.31)
He should annul legal actions
19 carried out by force or fraud, as also those executed by women, at night, within a house, outside,
20 or by an enemy. A legal action carried out by someone who is intoxicated, insane, afflicted, in distress, a child, or frightened, as well as one executed by a person unrelated to the issue, is invalid. (2.32–33)
[RULES REGARDING A SURETY]
Brothers, husband and wife, and father and son—their ability to act as surety
21 for each other, to incur debts from each other, or to be witnesses for each other is not recognized as long as they remain undivided coparceners.
The law enjoins a surety for appearance, for trustworthiness, and for payment.
22 In case of deceit, however, the first two should be made to pay, and even the sons of the third. When a surety for appearance or even a surety for trustworthiness dies, his sons are not obliged to pay the debt, whereas the sons of one who stands as surety for payment are obliged to pay.
If there are several sureties, then each should repay the loan proportionate to his share; when they have assumed individual liability for the whole debt, according to the wishes of the creditor.
23When a surety has been forced to repay the loan publicly to a creditor, the debtors are obligated to pay the surety twice the amount of that loan. Also to be returned are women and domestic animals along with their offspring; three times the amount of grain; four times the amount of clothes; and eight times the amount of liquids. (2.54–59)
[PEOPLE QUALIFIED TO BE WITNESSES]
Individuals who are given to ascetic toil and inclined to gift giving, come from distinguished families, speak the truth, place dharma at the forefront, are upright, have sons, own property—a minimum of three such individuals who delight in rites associated with the five sacrifices are recognized as witnesses, each with respect to persons of the same caste or class, or else all with respect to persons of all castes and classes.
A woman; child; old person; gambler; drunkard; mad person; heinous sinner; actor; person belonging to a heretical sect; forger; individual with impaired organs; person fallen from caste, close to the litigants, or with a stake in the lawsuit; associate or enemy of the litigants; thief; violent individual; person of ill repute; and an extreme ascetic
24—these are not qualified to be witnesses.
When approved by both parties, even a single person who knows dharma is qualified to be a witness. Anyone is qualified to be a witness in cases relating to sexual crimes and to theft, assault, and violence. (2.70–74)
[FAILURE TO TESTIFY]
When a man fails to give testimony, on the forty-sixth day the king should force him to pay the entire debt along with a penalty of one-tenth the amount. That vilest of men who, although he knows the facts, does not provide testimony is equal to false witnesses with respect to both the sin and the punishment. (2.75–76)
[TESTIMONY OF WITNESSES]
When the witnesses have come into the presence of the plaintiff and defendant, he should make them give testimony, saying:
The worlds that await those who commit sins causing loss of caste, as well as those who commit the grave sins causing loss of caste; the worlds that await arsonists and slayers of women and children—all those worlds will a man obtain who gives false testimony. Whatever good deed you have performed over hundreds of lifetimes, all that, you should know, will go to the man whom you defeat by your false testimony. (2.77–79)
[ASSESSING THE TESTIMONY]
When witnesses are in disagreement, the statement of the majority should be accepted; when they are equally divided, the statement of quality witnesses; when the quality witnesses are in disagreement, the statement supported by those with superior qualities.
The person whose plaint the witnesses affirm to be true is the victor, whereas when they state otherwise, that person suffers certain defeat. Even after the witnesses have given their testimony, if other witnesses with superior qualities or double the original number state otherwise, then the earlier witness are deemed false. (2.80–82)
[FALSE WITNESSES]
The person who suborned perjury, as well as the witnesses, should be fined individually twice the amount under litigation; if it is a Brahman, he should be sent into
exile. When a person who has been produced to give testimony by either party, engulfed by delusion, disavows it, he should be made to pay eight times the amount; a Brahman, however, should be sent into exile.
One may clearly give false testimony in a case where a person of an upper class is subject to execution. To expiate that, twice-born individuals should offer an oblation of milk rice dedicated to Sarasvati, the goddess of speech. (2.83–85)
[DOCUMENTS]
When any transaction has been concluded by mutual agreement, however, a document with witnesses should be executed with regard to it, noting at the beginning the name of the creditor, and inscribed with the year, month, fortnight, day, residence, caste, and lineage, as well as with one’s Vedic affiliation
25 and the name of one’s father.
Once the transaction has been completed, the debtor should write his name in his own hand: “I, the son of NN, agree to what has been written above in this document.” The witnesses—who must be uneven in number
26—should also write in their own hand: “I, NN, am a witness to this document,” preceded by the names of their fathers. Should the debtor be illiterate, however, he should have his view written down, as also an illiterate witness through another witness in the presence of all the witnesses. Thereafter, the scribe should write at the end: “At the request of both parties, I, NN, the son of NN, have written this.”
When a document has been written in one’s own hand, however, all that is authoritative even without witnesses, texts of recollection declare, except when it is done through force or fraud.
A debt attested by a document, however, has to be repaid by three generations,
27 while a pledge may be made use of so long as the debt remains unpaid.
28When a document is located in another country, badly written, lost, erased, stolen, cut, torn, or burned, he should get another one executed.
In order to authenticate a dubious document, one should look at a writing sample from the man’s own hand or resort to reasoning, implication, evidence, peculiar marks, connection, title, and inference.
29He should write on the back of the document any payment received from the debtor. Alternatively, the creditor should give a receipt signed in his own hand. After paying back the debt, he should tear up the document; or he should have another executed as acquittance.
A debt contracted in the presence of witnesses should be repaid also in the presence of witnesses. (2.86–97)
Balance, fire, water, poison, and holy water are the ordeals given here for establishing innocence. They are employed in cases of serious accusations when the accuser has accepted to be subject to punishment. Or, either of the parties, if they so wish, may undergo it, while the other accepts to be subject to punishment. One must undergo it even without the acceptance to be subject to punishment in cases involving treason against the king or a sin causing loss of caste.
When the amount is less than one thousand,
30 the plowshare ordeal
31 should not be employed, nor the ordeals of balance or poison. In accusations involving royal property, people should always undergo them after they have purified themselves. In a case amounting to one thousand, one should employ the balance and so forth, while holy water may be used for even a small amount. A person judged innocent should be made to pay fifty, while a person who is guilty is subject to punishment.
He should summon at sunrise the man who has fasted and taken a bath with his clothes on, and make him undergo any of the ordeals in the presence of the king and Brahmans: the balance ordeal for women, children, the elderly, the afflicted, cripples, Brahmans, and the sick; the fire and the water ordeals for a non-Shudra; and seven grains of poison for a Shudra.
32[Balance]
Individuals skilled in the use of balances should place the accused in the balance, make the balance even by using weights, mark lines,
33 and take him down.
“You, O Balance, are the abode of truth formerly created by the gods. Therefore, Lovely One, speak the truth! Free me from suspicion. If I have committed the crime, O Mother, then push me down. If I am innocent, raise me up.” So should he address the balance.
[Fire]
He should mark both hands after they have been rubbed with unhusked rice, then place on them seven pipal leaves and bind with a string, wrapping around the same number of times.
“You alone, O Purifier, move about in the interior of all beings. Like a witness, O Sage, speak the truth about my good and evil deeds.”
After the person has said this, he should quickly place in both his hands a smooth red-hot iron ball weighing 50 palas (1.89 kg). Taking it, he should walk slowly across all seven circles. One should know that each circle has a diameter of 16 aṅgulas (32 cm), with the same distance between any two of them.
After he has released the fiery ball and rubbed his hands with unhusked rice, if one finds that he is not burned, he should be judged innocent. If the ball falls along the way or if there is a doubt,
34 he should carry it again.
[Water]
After beseeching water: “Protect me by truth, O Varuna,” he should submerge himself, holding on to the thighs of a man standing in water reaching up to his navel. At the very same time, when the other runner has gone, a fast runner should bring back the arrow that had been discharged. If the latter sees the man with his whole body submerged, then he should be judged innocent.
35[Poison]
“You, O Poison, O son of Brahman, You who abide in the true dharma, rescue me from this accusation. By truth become my ambrosia.”
Having said that, he should consume the
śārṅga36 poison originating in the Himalayas. Should he digest it without violent symptoms,
37 one should proclaim the man’s innocence.
[Holy Water]
After worshiping the fierce deities, he should bring their bath water. After instructing the man,
38 he should get him to drink three handfuls of that water. When the man does not suffer a severe calamity caused by the king or by an act of god until the fourteenth day, he is innocent without a doubt. (2.98–117)
[WRONGFUL VERDICT AND APPEAL]
After subjecting a lawsuit that has been wrongly tried to a new trial, the king should punish individually the assessors along with the victorious party with a fine that is twice the amount in dispute.
When a man thinks, “I am not defeated,” although he has been clearly defeated according to proper procedure, and he returns and is defeated again, he should be made to pay a double fine. (2.308–9)
The treatise ascribed to Narada is unique in the history of the literature on dharma. All others prior to his contain discussions of the entire spectrum of topics relating to dharma, as evidenced most clearly in Yajnavalkya, who divided his text into three chapters dealing
with the three major provinces of dharma: proper conduct (
ācāra), law and legal procedure (
vyavahāra), and expiation (
prāyaścitta). Narada’s work is a legal code in the strict sense; he deals only with legal procedure (
vyavahāra). Given that two authors who followed him, Brihaspati and Katyayana, whose works are now lost, may have also written specialized texts on legal procedure, it is possible that the literary tradition of dharma may have begun to produce texts specializing in law proper around the middle of the first millennium
C.E. They would parallel the specialized legal digests (
nibandha) that began to be produced in the first half of the second millennium
C.E.Narada’s dates are impossible to determine with any certainty, but a time not too distant from that of Yajnavalkya seems reasonable.
39 Although the evidence has been interpreted differently, I think the preponderance, especially the technically sophisticated legal vocabulary, points to a date for Narada somewhat later than Yajnavalkya. Tentatively, then, I have assigned him to the fifth–sixth century
C.E.The dependence of Narada on Manu is clear, and the tradition itself calls his work a recension of Manu’s text. Yet the precision of language and the brevity of expressions show the great progress in legal thinking and composition that separates the two jurists. Early European scholars of India saw a parallel between Narada’s composition and Roman legal texts. A. Barth observed as early as 1876: “If we except the monuments of Roman legislation, antiquity has not perhaps left us anything which is so strictly juridical.”
40 Narada’s quest for precision and organizational structure is evident in the introductory chapter called
vyavahāramātṛkā, general topics of legal procedure; Narada is the first to introduce such a section into a legal text.
Although Narada has a long section on witnesses, it is clear that during his time documents had become the most significant form of evidence in legal proceedings. He places documents ahead of witnesses in discussing evidence, something that even Yajnavalkya, who has an extensive discussion of documents, did not do. For Narada documentary evidence is superior, as he states explicitly: “(The judge) may overrule a document only on the basis of another document, and what is attested to by witnesses, on the basis of other witnesses; whereas he may overrule witnesses on the basis of a document, given that a document is superior to witnesses” (NSm 1.125).
Some scholars have suggested that Narada’s text was meant for specialists—judges and jurists.
41 Many statements in his work appear to bear this out. One is his realistic view of the possibility that witnesses may be bribed or intimidated by one of the parties to a litigation so that they will give false testimony. He gives this warning: “A man should not secretly visit a witness designated by the opponent, and he should not alienate him from the other. Should he do so, he will lose the case” (
NSm 1.147).
Narada is also the first to set time limits on various kinds of evidence that may be presented in court (see
NSm 1.149–53). He permits indirect evidence, what is today called
“hearsay” evidence. So if a prospective witness dies or is otherwise unavailable, then a person who has heard him state what he saw or heard may present that evidence to the court (
NSm 1.148).
His understanding of the epistemology of law or dharma is revealed in his extensive comments on the norms prevailing in particular localities. He appears to take for granted the multiplicity of laws and sources of law.
1
[GENERAL RULES OF LEGAL PROCEDURE]
[Principles of Jurisprudence]
When men were totally fixed on dharma and spoke the truth, there were no lawsuits,
42 and no hatred or envy. Once dharma vanished among human beings, lawsuits came into being; and the king, the bearer of the rod, was made the adjudicator of lawsuits.
In that regard, two procedures have been declared for clearing up a doubtful case between two litigants: with documents and with witnesses.
One should know that there are two kinds of lawsuits: with an additional wager
43 and without an additional wager. When there is an extra wager stipulated in writing, it is one with an additional wager. In a suit that includes an additional wager, of the two parties, the one who loses should be made to pay the wager he has made and also the fine for defeat.
The core of legal procedures is said to be the plaint. When it fails, the plaintiff loses, and when he carries it through, he prevails.
Families, guilds, companies, an appointed official, and the king are the venues for judicial proceedings; each following one has greater authority than the preceding.
A legal procedure, it is said, has four feet, four bases, and four means; it benefits four, extends to four, and produces four.
It has eight limbs, eighteen feet,
44 one hundred branches, three wombs, two kinds of accusation, two gates, and two paths.
Dharma, legal procedure, custom, and king’s decree—these are the four feet of legal procedure, the subsequent ones annulling the prior ones.
45 Of these, dharma is based on truth, legal procedure on witnesses, custom on what is recorded in books,
46 and a decree is the king’s command. It is said to have four means because it is to be achieved by the expedients, beginning with conciliation.
47 Because it protects the four orders of life, it benefits four. It is said to extend to four because it extends in
quarters to the perpetrators, witnesses, assessors, and the king.
48 Because it produces dharma, success, fame, and attachment of the people, it is said to produce four.
The king along with his officials, assessors, authoritative treatise,
49 accountant, scribe, gold, fire, and water are said to be its eight limbs. Nonpayment of debts, deposits, partnerships, resumption of a gift, breach of contract for service, nonpayment of wages, sale without ownership, nondelivery after sale, cancellation of a purchase, nonobservance of conventions, land disputes, relations between a man and woman, partition of inheritance, violence, verbal assault, physical assault, gambling, and miscellaneous—these, texts of recollection declare, are the eighteen feet. Another subdivision of these same, texts of recollection declare, amounts to 108. Because the activities
50 of human beings vary widely, it is said to have 100 branches. Because it originates from lust, hatred, and greed, it is said to have three wombs. These three generate legal disputes. A lawsuit, however, should be recognized as having two kinds of accusations: an accusation based on suspicion and an accusation based on fact. Suspicion comes from association with bad people, and fact from finding such things as stolen goods. Because the lawsuit is connected with two sides, it is said to have two gates. Of these, the initial charge is one side, and the plea to it is the opposing side. Because it follows fact or subterfuge, it is said to have two paths. What is based on truth is fact, while what is stated erroneously is subterfuge. The king, who is the instrument for implementing dharma, should dismiss a sophisticated subterfuge; he should embrace only the facts, because his prosperity is rooted in dharma. (
Mā 1.1–25)
[Court Proceedings]
In a self-disciplined king who adjudicates lawsuits in accordance with dharma there arise seven qualities, just like the seven flames of a fire:
51 dharma, success, fame, affection of the people, support, respect of his subjects, and eternal residence in heaven.
Therefore, having reached the seat of dharma, the king, free from envy and carrying out the vow of Vaivasvata,
52 should be impartial toward all beings. Placing the treatise on dharma at the forefront, abiding by the view of the adjudicator, and with a collected mind, he should hear lawsuits in the proper order.
The hearing has four parts: arrival,
53 the subject of litigation, inquiry, and verdict.
Investigating through paths that do not conflict with treatises on dharma and success, he should skillfully steer the course of the lawsuit. As a hunter steers to the location of a deer that has been pierced by following the trace of blood in the brush, so should he steer to the location of dharma.
Where there is a conflict between a treatise on dharma and a treatise on politics, he should discard what is prescribed by the treatise on politics and follow what is prescribed by the treatise on dharma. When there is a conflict among treatises on dharma, worldly convention consistent with reason has greater force than dharma; it overturns dharma. For Lord Dharma is subtle, indiscernible, and difficult to fathom. Therefore, he should steer the course of the lawsuit along the discernible path. Even a nonthief may be turned into a thief, and a thief into a nonthief; Mandavya, who was not a thief, was convicted of being a thief through legal procedure.
54Among women, at night, outside the village, inside a house, and between enemies— a legal transaction between these, even when done, should be subject to being redone.
55 (
Mā 1.26–37)
[Delay in Court Proceedings]
Because of the intricate nature of disputes and also because of the debility of memory, in cases about debt and the like, he may at his discretion grant a delay with the desire to ascertain the facts. In cases involving cows, land, gold, women, theft, assault, and an emergency, as also violence and accusations involving great crimes, he should proceed with the case immediately.
56 (
Mā 1.38–39)
[Summons and Detention of the Accused]
When someone proceeds with a doubtful case without filing charges with the king, however, he is subject to a harsh punishment, and his case will not succeed.
When a man does not make himself available as a case against him is about to be filed, or when he brushes off the plaintiff’s directive, the latter may place him under legal detention until the court summons have been conveyed. Legal detention is of four kinds: in a particular place, for a particular length of time, with respect to travel abroad, and with respect to a particular activity. A man placed under legal detention shall not defy it.
While crossing a river, in a wild tract, in a dangerous region, and during turmoil— someone placed under legal detention in circumstances such as these does not commit a crime by violating that legal detention executed by a foe. When a man placed under legal detention at the proper time for legal detention violates it, he should be fined; whereas a man placing someone under legal detention in a wrongful manner should be punished.
57Someone planning to get married, afflicted with a sickness, preparing to offer a sacrifice, or struck by a calamity; someone sued by another person or occupied with royal business; cowherds while looking after cows, farmers while harvesting the crop,
craftsmen while engaged in their work, and soldiers during hostilities; someone who has not reached the age for legal transactions;
58 an envoy; someone about to make a gift, engaged in carrying out a vow, or in a difficult situation—such a person shall not be placed under legal detention, and the king should not issue a judicial summons to him.
The accused shall not file a counteraccusation against his accuser unless he has disposed of that lawsuit, nor shall someone file an accusation against a man already accused by another—it is not proper to shoot at one already shot.
59 (
Mā 1.40–48)
[Filing the Plaint]
Once an accusation has been filed, he must neither introduce changes to it nor present a totally different plaint—when he presents it, he loses the original suit.
One must not file a false accusation. One who files a false accusation becomes guilty. The fine prescribed for such as accusation falls on the man filing it. (Mā 1.49–50)
[Actions Causing Loss of Suit]
Procrastinating with some excuse or another, refusing to speak in court, and after making a statement denying it: these are the marks of a man who is losing a case. When someone flees after he receives the summons or, having arrived, refuses to participate in the court proceeding, the king should fine him; and, indeed, he loses the case. (Mā 1.51–52)
[Verdict]
Once lawsuits have been settled, evidentiary proof, whether it is a document or a witness, becomes fruitless unless it was already recorded when the charges were filed.
60 As an excellent rainy season is fruitless once the crops have ripened, so evidentiary proof is fruitless for settled lawsuits.
Even a nonfactual statement, when made at the right time, is subject to judicial examination, whereas even a factual statement that is not presented through negligence is disallowed. When someone thinks that a case has been adjudicated and a verdict rendered
61 in a manner contrary to dharma, he may stipulate a double fine and have the case retried.
When a lawsuit has been improperly tried, however, the assessors should be subjected to that punishment, for without punishment no one would ever remain on the right path. If he speaks falsely because of passion, ignorance, or greed, that assessor should be known as a nonassessor,
62 and the king should punish him harshly. (
Mā 1.53–58)
Nonetheless, a king, carrying out his own dharma, should in a special way examine whether something is correct or incorrect, because people’s intentions are so diverse. There are men who give false testimony because of greed, and there are other evil-minded people who manufacture fake documents. Therefore, the king should examine in a special way both of these: documents by means of the customary norms for documents, and witnesses by means of the customary norms for witnesses.
Liars give the appearance of being truthful, while truthful persons look like liars: we see diverse dispositions. Therefore, it is right to subject them to examination. The sky looks like flat land and a firefly like fire; but there is no flat land in the sky and no fire in a firefly. Therefore, it is right to examine even a thing that is seen with one’s own eyes. By pronouncing on matters after examination, he will not violate dharma.
When a king, self-possessed, always tries lawsuits in that manner, he will spread his blazing fame wide in this world and reach the crest of the sun. (Mā 1.59–65)
2
[ASSESSMENT OF EVIDENCE]
Document, witnesses, and enjoyment: texts of recollection present these as the three kinds of proof by which a creditor obtains his property when it has been appropriated by someone. A document is always strong; witnesses, however, only as long as they are alive; enjoyment after the passage of time. That is the judgment of authoritative texts. (1.65–66)
[Enjoyment]
Of the three kinds of proof that have been given in due order, one should recognize that each preceding one is stronger; enjoyment is stronger than these.
63 Even when a document is available and the witnesses are alive, what has not been enjoyed is not firmly established, especially in the case of immovable property.
When a man, through his own folly, looks on passively as his things are being enjoyed by others under his very eyes and while he is still living, that enjoyment places those things in the others’ power. When a property owner looks on passively without saying anything as something is being enjoyed in his presence by others for ten years, he has no right to take it back.
64 When he has remained indifferent and stood there silent, after the time given above has elapsed his lawsuit will not succeed.
If the man is not mentally incompetent or a minor and the property is being enjoyed in his presence, then it has been enjoyed legitimately and the man who enjoyed it is entitled to that property.
Pledge, boundary, property of a child, open and sealed deposits, women, property of the king, and property of a Vedic scholar—these are not lost through enjoyment. Through the complete enjoyment in the presence of the owner for twelve years, moreover, even a pledge and so forth are lost, with the exception of women and the property of the king. A woman and the property of the king are never lost even if they are enjoyed for hundreds of years without title.
65Where one detects enjoyment but no title at all, there title is the proof and not enjoyment. When something is enjoyed without title, that enjoyment does not undermine its ownership, but when the one who enjoyed the property dies, it may be enjoyed by his heirs. When the very man who took the articles is being sued, he should produce the title to them. Enjoyment alone is successful for those who inherited them in the proper order from their father. Consignment, stolen property, deposit, what is seized by force, what is borrowed, and what is enjoyed outside the owner’s presence— for these six, enjoyment is no proof without title.
66 Likewise, when a litigant dies while he is being sued, his son should prove the case; enjoyment does not extend to this.
67When something has been enjoyed even without title for over three previous generations, that property, which has come down three generations in the proper order, cannot be expropriated. (1.67–81)
[Documents]
Documents should be recognized as consisting of two kinds: a document written in one’s own hand and a document written by someone else; and one that is witnessed and one that is not witnessed. The legitimacy of these two depends on the settled practice of the region. A document, texts of recollection declare, is valid when it does not contravene the practice of the region and is marked by a clear statement of the issues in question, and its sequence and letters are unbroken.
68 A document executed by someone who is intoxicated or facing a legal accusation, by a woman or child, or by force is invalid, as also one executed by intimidation or deception. A document is also worthless when its witnesses, creditor, debtor, and scribe have died, unless the pledge is firmly in place. Such a pledge is said to be twofold: mobile and immobile. Both these are valid only if they are being enjoyed, not otherwise. A document that has been shown time and again and publicly heard repeatedly remains valid under all circumstances, even when the witnesses are dead. A document whose content has never been heard or seen before has no validity with respect to a lawsuit even if the witnesses are alive. In the case of a document that has been deposited in another
country, burned, written badly, or stolen, if it is still existent a delay may be granted, and if it is not existent one may present someone who has seen it.
If there is any doubt about the authenticity of a document, he should remove that doubt by looking at the handwriting, and by evidence, marks, implication, and reasoning. A document, furthermore, that bears someone else’s name and has been executed for a different purpose—if it is suspect—should be examined using connection, title, and inference.
69He may invalidate a document only on the basis of another document, and what is attested to by witnesses, on the basis of other witnesses; whereas he may invalidate witnesses on the basis of a document, given that a document is superior to witnesses.
When documents are cut, torn, stolen, erased, lost, or badly written, another document should be executed.
These are the rules for documents. (1.115–26)
[Witnesses]
When two people are engaged in a legal dispute with regard to matters that are uncertain, however, the way to bring clarity to them is through witnesses, because they have seen, heard, or experienced first hand.
Someone is called a witness because he witnessed something directly with his own eyes or ears—with his ears what another says, and with his eyes a bodily act. Wise men have identified eleven kinds of witnesses. Of these, five kinds are said to be appointed and six kinds non appointed.
70 A witness inscribed in a document, a witness who is made to remember,
71 a casual witness, a secret witness, and an indirect witness:
72 these, texts of recollection declare, are the five kinds of witnesses. The six kinds of non appointed witnesses also have been enumerated by sages: villager, adjudicator, and king linked to the litigants; someone intimately involved with the matters at hand; someone assigned by the plaintiff; and a family with respect to family disputes—these also may become witnesses.
Witnesses should come from good families; be upright; be pure with respect to birth, actions, and wealth; consist of a minimum of three; and be irreproachable, honest, and intelligent. Brahmans, Kshatriyas, and Vaishyas, as also those Shudras who are irreproachable, should act as witnesses for their respective social class; or else, all may be witnesses for all social classes. Members of guilds are to be witnesses for guilds, members of social groups for their respective groups, outcastes for outcastes, and women for women. If some member of a social group such as a guild becomes the object of hatred, then none of them can act as a witness; they all bear hatred toward him.
73In treatises, wise men have stated that those disqualified from being witnesses are also of five kinds: because of an explicit statement, because of a fault, because of conflict, because someone speaks on his own, and when death has intervened. Because of an explicit statement—learned Brahmans and the like; because of a fault—thieves and the like; because of conflict—when in a legal dispute there is disagreement between witnesses; because someone speaks on his own—a person who, without being designated, comes on his own and speaks; someone after death has intervened—upon the death of the plaintiff, except when he told someone his testimony as he was about to die. Learned Brahmans, ascetics, the elderly, and men who have become renouncers—these are disqualified from being witnesses because of an explicit statement; no reason for this has been given. Thieves, violent men, men with a hot temper, gamblers, and killers
74 are disqualified from being witnesses because they are evil; truth is not found in them. When the king has assembled witnesses to decide a single case, if their statements are in conflict, then they are disqualified from being witnesses because of conflict.
75 When a person who, although he has not been designated as a witness, nevertheless comes on his own and speaks, he has been called an informant in the treatises; he does not deserve to be a witness. When there is no plaintiff in a case in which witnesses are to testify, how can testimony be given? Such is a person disqualified from being a witness when death has intervened.
When there are two litigants in a case and both have witnesses, then the plaintiff’s witnesses should be questioned first. In a case where, by its very force, the plaintiff’s claim has been superseded, the witnesses of the defendant should be questioned.
76A man should not secretly visit a witness designated by the opponent, and he should not alienate him from the other. Should he do so, he will lose the case.
If a designated witness dies or goes to another country, those who have heard him can provide valid testimony, for evidentiary proof by indirect means is valid. (1.127–48)
[Time Limits for Different Kinds of Evidence]
A document remains valid even after a very long time. A literate man should write it himself, but an illiterate man should get it written. The testimony of a witness who has been made to remember
77 is said to remain valid here for eight years, while that of a casual witness remains valid for five years. The testimony of a secret witness, likewise, remains valid for three years, while that of an indirect witness, they say, remains valid for just one year. Alternatively, a time restriction has not been indicated with respect to witnesses, for people knowledgeable about authoritative treatises say
that the validity of a witness is dependent on his memory. When a man’s memory and hearing have never been impaired, he is entitled to provide testimony as a witness even after a very long time. (1.149–53)
[Lawsuits Without Witnesses]
Six other disputes, however, have been acknowledged whose resolution does not require witnesses. Wise men say that the role of witnesses in them is played simply by telltale signs.
Someone carrying a firebrand should be recognized as an arsonist; someone carrying a weapon as a murderer; and someone caught tête-à-tête as an adulterer. Someone carrying a spade close by should be recognized as a breaker of a dike. Someone carrying an ax, likewise, has been declared to be a forest cutter. A man displaying fresh marks should be recognized as one who has committed physical assault.
These are the ones whose resolution does not require witnesses. In the case of assault, however, there must be an investigation. Someone, after he has made a mark on himself, may assault another man out of hatred. In this case, it is proper to carry out an investigation through reasoning, motive, congruity, and ability. (1.154–58)
[Qualifications of Witnesses]
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. A slave; a fraud; an unbeliever; an old person; a woman; a child; an oil presser; someone who is drunk, insane, scatterbrained, or afflicted; a gambler; someone who officiates as a priest for a group of people; someone who has traveled a long distance; a seafaring trader; a renouncer; a sick person; a hunter;
78 a learned Brahman; someone who is devoid of good conduct or is impotent; a performer; a heretic; a nonobservant;
79 someone who has abandoned his wife or sacred fire; someone who officiates at the sacrifice of people for whom one is forbidden to officiate; someone who shares meals with a litigant; an associate; an enemy; a spy; a relative; a uterine sibling; a convicted criminal; an actor; someone making a living from poison; a snake catcher; a poisoner; an arsonist; a plowman;
80 a son of a Shudra wife; someone who has committed a lesser sin causing loss of caste; someone who is weary, violent, fatigued, poor, very lowborn, or of evil conduct; a student who has not returned home after completing his studies; an imbecile; a dealer in oil; a dealer in roots;
81 someone who is possessed by a spirit, hates the king, or forecasts the weather; an astrologer; a defamer; someone who sells himself or has a missing limb; a pimp; someone with bad nails, black teeth, or leukoderma; someone
who betrays his friends; a cheat; a liquor merchant; a magician; someone who is greedy or cruel; someone who quarrels with a guild or association; a butcher; a painter; a religious panhandler; an outcaste; a forger; a trickster; an apostate renouncer; a thief; an officer of the king; a Brahman who sells human beings, poison, weapons, water, salt, bread, or vegetables; a twice-born person who is a moneylender; someone who has fallen from the dharma proper to him; a headman; a panegyrist; someone who serves low-class people, litigates with his father, or causes dissension— these are people disqualified from being witnesses.
Even those, beginning with slave and cheat, who have been designated as disqualified from being witnesses may be called as witnesses, taking into account the gravity of the lawsuit.
In all cases involving violence, theft, and adultery, as well as in both kinds of assault,
82 he should not investigate the qualifications of witnesses. Even in these cases, a child, a single individual, a woman, a forger, a relative, or an enemy should not be a witness; they may give false testimony. A child may give false testimony because of ignorance; a woman because of her lack of truthfulness; a forger because of habitual degeneracy; a relative because of love; and an enemy because of inimical revenge. Alternatively, even though disqualified from being a witness, a single individual may be questioned as a witness in a court so long as both litigants give their consent. (1.159–74)
[Wrong Behavior on the Part of Witnesses]
When a witness, because he is devastated on account of his own iniquity, appears as if sick, moves from place to place, runs pleadingly to everyone, coughs impolitely and without reason, sighs constantly, scratches the ground with his feet, and shakes his arms and clothes; when the color of his face changes, his forehead sweats, and his lips become parched; when he looks up and from side to side and makes a lengthy and rambling speech without being questioned and as if in a hurry—such a man should be recognized as a false witness. The king should punish that evil man.
When someone, after he has disclosed his testimony to others, denies that testimony, he should be punished even more severely, for his crime is greater than that of a false witness. (1.175–79)
[Swearing in of Witnesses]
Having summoned all the witnesses, who are men of proven good conduct and conversant with the lawsuit, he should question them separately. 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—instilling
deep fear in the witnesses through ancient dharma proclamations that extoll the greatness of truth and denounce falsehood.
Naked, shaven-headed, wretched, and racked with hunger and thirst, a man will have to go to his enemy’s house carrying a skull bowl to beg for almsfood—should he give false testimony. Barred from the city and remaining famished outside the gate, a man will see mostly his enemies—should he give false testimony. The kind of night that a superseded wife spends, or a man defeated at dice, or a man with his body crushed by a heavy weight—such a night will a man who attests falsely spend.
When a witness, while giving testimony, vacillates like the flapping of a cow’s ear, he binds himself with a thousand fetters of Varuna. He is released from one fetter after the completion of one hundred years. In this way, he is freed from that bondage after one hundred thousand years.
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.
One only, they say—there is no second—purifies the self. It is truth, the stairway to heaven, like a ship taking one to the farther shore. A thousand horse sacrifices and truth were weighed in a balance. Truth did, indeed, surpass the thousand horse sacrifices. A reservoir is better than a hundred wells; a sacrifice is better than a hundred reservoirs; a son is better than a hundred sacrifices; and truth is better than a hundred sons. By truth the earth gives support, by truth the sun rises, by truth the wind blows, and by truth the waters flow. Truth alone is the highest gift, truth alone is the highest austerity, and truth alone is the highest dharma for people—so have we heard from sacred scriptures. In brief, gods are truth, while humans are untruth— so state the texts of recollection. When a man’s mind abides in truth, he attains the divine state in this very world. Give up untruth and speak the truth; by truth you will go to heaven. By speaking an untruth, a man falls into the most dreadful hell.
In hells, moreover, the cruel and powerful servants of Yama will ceaselessly tear out your tongue and hack you with swords. Full of rage, they will pierce you with spears as you cry out helplessly. After tossing you up upside down, they will fling you into pools of fire. And after enduring these dreadful tortures of hell for a long time, you will return here into the horrid wombs of vultures, crows, and the like.
Knowing these evils of untruth and the fine attributes of truth, speak the truth— raise yourself up and do not cause your own downfall. Relatives, friends, and even
great wealth—none of them is able to rescue you when you are plunged in dreadful darkness. Your ancestors, however, hang in suspense when you have come as a witness: “Will he rescue us? Or will he cause his own downfall?” Truth is the self of a human being, and the whole universe is founded on truth. In every way you will, by yourself, yoke yourself to the highest good.
The night that you were born and the night that you will die—all that is between those two will be fruitless for you, if you misrepresent the truth. There is no dharma greater than truth, and there is no sin greater than untruth, especially within the dharma of witnesses. Therefore, speak only the truth.
That lowest man who would assail his own speech for the sake of someone else, what would that evil man, without fear of hell, not do for his own sake? Lawsuits
83 are, indeed, established in speech, are rooted in speech, and spring from speech. One who steals that speech is a man who has stolen everything. (1.180–208)
[Assessing the Testimony]
When there is disagreement among witnesses, however, the majority is probative. When they are equal in number, the honest ones should be trusted; and when these are equal in number, those who have a better memory. When, however, in a lawsuit one finds an equal number of witnesses with good memory, given that the dharma of witnesses is subtle, in that case the testimony of witnesses comes to naught.
In various kinds of cases where the charges have been recorded, however, if a witness who has come to give testimony does not speak in conformity with what is written, it is as if he has not spoken. When there is disagreement with respect to place, time, age, material, amount, shape, and kind, that testimony is said to be null. When the witnesses testify to an amount either more or less than in the charge, that testimony also should be viewed as not given. These, texts of recollection declare, are the rules regarding testimony. (1.209–13)
[Proof in the Absence of Documents or Witnesses]
Where, due to negligence, a creditor has neither a document nor witnesses, and the defendant denies the claim, three procedural rules have been proclaimed: demanding at every appropriate time and indirect arguments; the third is said to be an oath. By means of these and in that order, he should prevail over the defendant in this manner.
When, after the demand has been made repeatedly—or else three, four, or five times—the man does not repudiate his claim, thereafter the man must pay his claim. When the demand has been rejected, however, he should pursue him through indirect arguments such as place, time, claim, connection, amount, activity, and the like.
When even indirect arguments are ineffective, he should press him by means of oaths such as fire, water, and good deeds in conformity with the claim, time, and strength. (1.214–18)
[Ordeals]
A man whom the blazing fire does not burn or water holds submerged surmounts that accusation involving a great crime; in the opposite case, he is guilty.
In accusations concerning the character of women, as also in cases of theft and violence, this is the only procedure prescribed; as also in all cases where the claim is denied. For oaths, texts of recollection declare, are even for gods and seers; Vasistha submitted to an oath when he was under suspicion of being an evil spirit.
84 The seven seers, likewise, having come together to Indra in a case involving lotuses, submitted to an oath steadfastly in order to establish the innocence of one another.
85 (1.219–22)
[Confession]
When someone, having committed a crime or act of violence, either pays restitution or admits it on his own in the court, texts of recollection declare, his fine is halved. If, however, he conceals his crime because of his wicked nature and subsequently suffers defeat in the lawsuit, the assessors become displeased and a severe punishment falls on him. (1.223–24)
