Open Access Research Article
JURY OF MANAV-DHARMSHASTRA – A BRIEF STUDY
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Article Details
JURY OF
MANAV-DHARMSHASTRA –
A BRIEF STUDY
AUTHORED BY - ADVOCATE KESHAV DEV
BALLB (five yearly Integrated degree)
- B.S.A College Mathura –
Dr. Bhimrao Ambedkar University Agra.
LL.M - (Criminology) Mangalayatan
University Aligarh.
.LL.M (Corporate law) Kurukshetra
University Haryana.
M. Phil - Jiwaji rao University
Gwalior Madhya Pradesh
1. About The Topic
Presented article regarding
Dharmshastra and the ancient Council of Justice(jury).Which throws light on the
heard and unheard aspects of the functioning and quality of the ancient Indian
judicial system, jury and also draws inspiration for the present judicial
system.In The Presented Article, the Ancient Indian judicial system has been
briefly discussed on the basis of ancient Dharmshastra
1.1.Rise of Dharmashastra:
Dharmashastra emerged to give a
definite well-organized system of conduct to the human society.Within it, a
system was given for the behavior arising from every reaction of human
nature.Under which there were not only law and justice but also rules related
to social conduct and behavior, personal conduct and behavior, spiritual thoughts
etc.
According to the ancient traditional
Indian view, the Dharmashastriya legal system is the world's first known
well-organized legal system.
According to Rigveda, Maharishi Manu
is considered to be the originator of Dharmshastras([1]Rigveda
-8/51/1,8/52/1,8/63/1, T[2]aittariya
samhita- 2/10/2,T[3]andya
Brahman -23/16/217)
The form of Dharmashastra or Smriti
Texts that we are seeing today is a fragmented and destroyed form of
Dharmashastra.The early and original [4]Dharmshastra
composed by Maharishi Manu is a large code with 100000 verses & 1008
chapters and 24 Prakarnas,Which he taught to his 10 main disciples and divided
it into 10000 verses and gave it to each disciple.
1.Marichi ,2. Atri ,3. Angira, 4.
Pulastya 5.Pulaha,6.Kritu,7.Pracheta,8.Vashishtha,9.Bhrigu,10.Narada ( [5]Manusmriti
1/35)
Who converted this huge code of Manu
into 10 small Dharmashstras who are today known by the name of these sages.
The Manusmriti that we have today is
actually Bhrigusmriti which is a code of 10000 verses given by Maharishi Manu
to his disciple Bhrigu.
The sages of that time and those who
followed Manu, composed Smritis in their own way to provide order & System
to the human society on the basis of their Vedic knowledge and experience.At
present there are [6]56 Smriti
texts available, out of which only [7]12 Smriti
texts were considered helpful in the formation of the present Hindu law.
It is true that over the course of
thousands of years, many changes have taken place in the Smriti texts, many
things have been added to them due to which they have also become fragmented,
but their original form and principles have not been completely destroyed but
are still present in the Dharmashastras.
In this way we can see that
Manusmriti, which was once a code of 10,000 verses, today contains a total of
two and a half thousand verses. Most of the scholars consider [8]only 1200
of them as important.In this way, other Smriti texts have also remained very
little from their main form.
Here we will learn about the systems
obtained from the Smritis, Dharmashastras, which were used to appoint courts
and judges and run the judicial process.
1.2.Meaning and antiquity of
Dharmshastras
[9]"Shrutistu vedo vijyeyo
dharmashastram tu va smriti sarvartheshvamimansye tabhyaam dharmao hi
nirbabbhau." (Manusmriti 2/10)
It means Shruti is called Veda and
Smriti is called Dharmashastra. These
two are undisputed in all matters of duty, because Karma-Dharma has been
revealed from them.Because Dharma is known accurately through these texts, that
is why they are called Shastras (scriptures) of Dharma -Dharmashastra (Smrities).
Smriti texts have been called
Dharmashastras since ancient times and literally the word Dharma means those
systems which regulate the society and by which man achieves a well-ordered
life and by which the duties and rights of every individual of the society are
definitely determined.
Dharma can also be taken in this
perspective ,"That all those rules and principles which govern human
nature provide an orderly and dignified way of life to human society and whose
non-compliance causes harm to any individual or society and leads to violation
and encroachment of his rights and for which penal system and judicial process
have been arranged.These principles and rules are followed and propounded by
the state and are natural.
Thus we can say that the word Dharma
has nothing to do with worship, worship of God and spiritualism.It is directly
related to society and human interests and to establish order.In common language,
it can also be called legal law or code of conduct.
Some people also associate the word
Dharma with responsibility or duty. Our duties and responsibilities towards the
society all come under Dharma .While explaining the word Dharma in Dharmashastra,
the Dharmashstrakaras (the writer of Dharmashstras)have given mainly 10
characteristics of it -
[10]Dhriti-Kshama-Damoasteyam-Shauchamindriyanigraha,
Dhirvidya-Satyamkrodho-
Dashakam Dharma- Lakshanam ??(Manusmriti
6/92)
1. Dhriti - Patience
2. Kshama- Pardon
3. Dama - self-control and suppression of
one's desires
4. Astey - not to infringe upon the rights of
others,Do not take or steal someone else's things
5. Shauch - To be pure in body, mind and
thoughts
6. Indriya-Nigraha - control oneself and one's senses
7. Dhi - stable and knowledgeable mind wise
mind
8. Vidya - Knowledge
9. Satya - Truth
10. Akrodh - absence of anger
This is Dharma and anything different
or outside from it is not Dharma.If seen from a microscopic point of view,
actually the reason behind the law is the presence or absence of these 10
symptoms.
[11]Ahimsa-Satyamasteyam
Shauchamindrianigraha: -Daanam -Damo Daya-Shanti:-Sarveshaan-Dharmasadhanam.
(Yajnavalkya Smriti 1/2/22) Thus, 10 characteristics of dharma have been
mentioned in different Dharmshastras.
If we talk about the antiquity of
Dharmashastra, then there are two opinions in this regard. The first opinion is
the [12]ancient
traditional Indian belief, according to which Dharmashastra originated from
Manu and is thousands of years old and the sage who wrote them is called Rishi
As ancient as it is. its written Smriti are equally ancient. According to this,
the oldest dharmshastra is Manusmriti and the last
Dharmshastras are considered to be Parashar and Vyas Smriti.Some scholars
consider Kautilya's Arthashastra as the last Dharmashstra.
According to the second opinion based
on various researches done by modern researchers, historians and scholars, the
Dharmashastra[13] was
composed from 800 BC to 6th century AD and according to these Smriti texts,
Indian social and family law has been governed till now.No matter how many
inconsistencies, errors and interpolations there may be in the Smriti
texts(Dharmashastras )today, they are still a mirror of our ancient judicial-
legal system.
2. Judicial system in Dharmashastras
According to Dharmashastra, we will
know the form of judicial system in ancient times in a sequential manner from
the following points:
2.1. Judiciary
Judiciary means in general
words,"A system of courts that interpret and apply the law in the state.'
Present time mainly Three main parts
of judiciary - I.The court (jury) ,II.The Advocate, III.The Party ( Plaintiff
and defendant)
At present there are six types of
courts(Types of judiciary) -
[14]I.The District Court &
Subordinate Courts(Article -233-237,Part 6, chapter 5)
II.The High Court( Article
-214-231,Part 6, chapter 5)
III.The supreme Court(Article
124-147, Part -5, Chapter -4)
Or
I.The Revenue Courts(Article
-233-237,Part 6, chapter 5)
II.The Tribunal Courts(Article -136,
323A ,323B ,Part 14)
III.Fast track courts & Lok
Adalats (Article -39A)
Apart from all this, the President of
India is considered the supreme judge of India(Article 72or161)
Till now we have got a brief
introduction of the present judiciary on the basis of which we can understand
the present judicial process. Further we will see how the ancient judiciary was
on the basis of Dharmashastra.
2.1.1.Functions and Organs of the
court(According to Dharmashastras)
In ancient times the court was called
"Dharmasthiya"[15]
(Arthashastra.1/9/6) and "Parishada"[16]
Or "Nyaya Parishada" (Manusmriti 12/110&ParasharSmriti.8/35) and
the judges were called "Dharmastha"([17]Arthashastra
3/1/1)or "Sabhasada"[18](Narada3/5)
According to Dharmashastra, these [19]eight
parts of Judiciary are considered(Narada .1/15) -
Raja satpurush: sabhya: Shastram
Ganak lekhakau Hiranyamagnirudakam Ashtanga: samudahrita:||
1. The King (court accrediting body)
2. The Judges & Jury
3. Dharmashastras (Code of Law)
4. Ganakalekhaka(The writer or record
holder accounting officer)
5. Prangvivaka (Advocates)
6. Hiranya (Court fees)
7. Evidences
8. Fire & water (To swear an oath so
that a person will not lie)
These three main components are
considered necessary in the judgement -
[20]Dharm Shastram puraskritya
Prangvivaka Mate Sthita |
Samahita Mati Pashyed vyavhara nanukramad
||(Narada .1/35)
1.Rules based on Dharmshastra or
Nyaay Shastra
2.Opinions based on Dharmshastra of
jurists, judges and lawyers
3.Keeping one's mind calm, the truth
obtained on the basis of answers and evidence asked from the plaintiff and
defendant.
2.1.2. Qualifications of Judges &
Jurisdiction
According to Dharmashastra, judges
should mainly have these qualifications -
1.According to[21]Parashara
-
Chaturvedo - Vikalpi ch Angaviddharma
-Pathaka:
Trayashcha-Ashramino - Mukhya:
Parshdeva Dashavara||
Ragyashchanumate sthitva
Prayashchitam vinirdishet
Swayameva na Kartavyam Kartavya
swalpa nishkriti:||(8/35,36)
These main qualities of the Judicial
Council are essential-
1. One who is knowledgeable about all
the four Vedas including all their parts.
2. Know all the Dharmashastras along
with their parts.
3. The person with Grihasth Ashram
should be the main one among all the three Ashrams( Sanyasi Vanaprasthiti and
Brahmachari have no right to give judgement)
4. One who embodies the 10
characteristics of Dharma.
5. He has been appointed for judicial
work by the king and the administration and not as per his wish.which has been
thoroughly tested by the king and the administration
Only a person with these traits is
eligible to administer justice as a Parishada.
According to Rishi Parashar, the
Judicial Council is formed only when there are at least three and maximum five
such scholars.[22](8/17-22)
Parashar certainly gives preference to
Brahmins as a council in justice work, but he is strongly against a person
being a Brahmin only on the basis of caste and being appointed for justice
work, rather only a person with full qualification should be appointed for
justice work. (8/23-28)
2.According to Narada-
Dharm shastrarth kushala kulina
satyavadina:
Sama Shatru cha mitre cha nripate syu
sabhasada:||(3 / 5)[23]
1.One who is well versed in
Dharmashastras and Vedas.
2.Be from a noble & elite family.
3.Truthful and of good character.
4.Be a person who treats both enemies
and friends equally.
5.Thoroughly tested by the king and
experts.
6.Be a person appointed by the king
Only a person with these qualities
and traits is known as a Nyayik sabhasada.Rishi Narada gives preference to
nobility and merit rather than any caste or varna for the qualification of a
Nyayik sabhasada
According to Kautiliya [24]To become
a Dharmastha (a judge) it is necessary to have 27 main qualities -
Janpadobhijata: swavagraha:
Kritashilpashchakshushman pragyo dharyishnurdaksho vagmi pragalbh:
Pratipattimanutsaha prabhavyukt: Kleshsaha: shuchirmaitro dridhbhakti:
sheelbalarogyasatvsanyukta: stambhchapalyavarjit: sampriyo
vairanamkartyetyamatyasampata at: Padardhagunahinau
madhyamavarau||(Arthashastra.1/8/1)
1. He must be a citizen of the country.
2. He should be free from vices like
gambling, drinking etc.
3. He should be expert in horse riding
etc.
4. He should be well versed in arts and
sciences.
5. He should be an in-depth study of
dharmshastra (jurisprudence and political science).
6. must have a sharp memory
7. Must be clever who can recognize the
mistake and cunningness of others.
8. He shouldBe eloquent - know the art
of speaking.
9. Pragalbh means Must be able to exert
pressure on others
10. Must be successful in debate, must be
skilled
11. must be full of enthusiasm
12. he must be tolerant
13. That mind must be pure from words.
14. should be friendly.
15. he must be a patriot
16. Must be polite and good natured.
17. Healthy
18. he must be patient.
19. must be without pride & ego.
20. stable in nature.
21. Good & Attractive Personality.
22. There should be equal treatment for
enemies and friends alike.
23. Must be proficient in the art of
writing.
24. not be accused in any case.
25. Grihasth
26. man who cares about his own business.
27. believer in the justice system of the
state.
These 27 qualities mentioned by
Acharya Kautilya for a judge are basically the qualities mentioned by Maharishi
Manu which a Dharmastha should have.
Tatra Dharmopadhashuddhan
Dharmasthiya Kantaka shodhaneshu sthapayet (Arthashastra.1/9/6)
After examining the king, a person
with these qualities should be appointed as a judge in civil and criminal
courts.
According to Manu -
Maharishi Manu mentions a detailed
qualification for a judge in Manusmriti. Detailed and specific mention of what
qualifications the members sitting in the jury should have is found in [25]Manusmriti.
Maharishi Manu considers the need for
a maximum of 10 and a minimum of three members in the Judicial Council.Which
should mainly have these eight qualities(chapter 12 verses 105-117,7/141)
1. The judge should be from a pious and
Elite family.
2. Must know Dharmshastra, Vedas and
political science.
3. must be fearless.
4. Must be of good character, serious
and performing Agnihotra.
5. Must be logical and stable with
intelligence and sharp memory.
6. He should be very attentive and
constantly studying.
7. Must possess 10 characteristics of
Dharma.
8. He should be healthy in body and
mind.
2.2. Role of Evidence in
Dharmashastras
In a systematic judicial process, the
court requires proper evidence to reach any judicial decision.There is a very
scientific and detailed mention of Evidence law in ancient Dharmashastras
.Today we see Evidence law, it was definitely given by the British, but most of
the rules and its inspiration have been taken from Dharmashastras
itself.Thousands of years ago, a systematic evidence law was prevalent in
India, which was deeply studied by foreign scholars.[26]Western
scholar named Max Muller had highly praised this book Narada Smriti and said
-
"If Narad Smriti had been
specimen the first translation of Hindu literature in European languages it
would have been accepted as a universal law book."
Apart from this, after a deep study
of Naradiya Dharmashastra, the learned man [27]Julius
Jolly, who wrote the first foreign commentary on it, was surprised to
see the well-organized methods of law given in it.Here we will give a brief
overview of the Evidence law given in ancient Dharmashastras, mainly keeping
Naradiya Dharmashastra at the center.
According to SmritiKaras, in his
Smriti Shastra, the evidence has been classified and arranged under the
evidence law -
Tasya
ch Bhava va shchitro Bhavanti likhitam Sakshina: Samayakriya ch??(Vishnu. 5/12)
[29]Likhatam Sakshino Bhukti Pramanam
Trividham Smritam.(Narada.4/69,
vashishth.16/2)
According to the above quote, all
Dharmashastras explains only three forms of evidence.
I. written, II.Oral ,III.
Possession
Apart from the above 3 types, another
type of evidence is also seen elsewhere in Narad Smriti which we can call
divine evidence
I. Written
evidence
Narada mainly describes four types of
written evidence-
self written document.
any document written by another
Document attested by witness
Document without witness
Written evidence is any written thing
or document which, when produced in a court of law, proves a
fact.(Narada.4/135)
Narada has said that a written
document having these five qualities is admissible in the court of law as
evidence(Narada.4/136) -
A. written in plain language and whose
language is clearly understood.
B. not written using double meaning
words.
C. A document ,Set of facts in the order
of their importance
D. In which the necessary things like
date, number, quantity, duration, conditions etc. are mentioned
E. admissible under local law and a
document acceptable under local law
The documentary or written evidence
given by these people is not admissible in the court of law (Narada 4/137)-
1. Matta - Drunked ,alcoholic person
2. Abhiyukta - person convicted or
accused by court
3. Stri - A women,( Due to lack of
education and dependence)
4. Balaka - A child becauseA minor
person does not have the right knowledge of right and wrong.
5. Vivhala - person without free consent,The person who
is under the control of greed, fear and deceit
II. Oral
Evidence
According to Narada a person is witness -
[30]Samakshadarshanatsakshi
vijyeya shrotrachakshusho?Shrotrasya
yat paro bruto chakshushoredarshanam swayam ??(Narada.4/148)
Means a person who sees an event with
his own eyes Or the person who hears with the ears is called a witness
(sakshi).The statement of such direct hearer and seer is accepted as
evidence.One who has heard, who has seen and experienced and who was present at
the time of the incident is fit to give oral evidence.
Therefore, only such persons are
considered eligible to give oral evidence. These persons should also have some
of the following characteristics -
1. He should be bold or fearless.
2. His mental condition should be
healthy.
3. The statement given by him should be
given freely and should not be induced by any pressure, fear, greed etc.
4. The witness making the statement
should not be a relative of either of the parties mainly and should not have
any kind of greed or fear relationship with both of them.
5. The witness should not be the accused
before the law.
6. The testimony of that person will be
accepted mainly to verify the character of the witness, two eminent people of
the society should verify before the court that this person never tells a lie.
Manu also gives detailed provisions
regarding the qualifications and disqualifications of witnesses.([31]8/63-86)
Narada mentions about 11 categories
of witnesses in his Dharma Shastra(4/149-152)
III.
Possession
Not only Narada Smriti in the
evidence related to any land dispute legally, but also in the present time the
possession is considered a huge evidence.Even today we see an important role of
possession evidence in revenue related disputes in tehsils .Under the[32]
Limitation Act, 1963, the limitation period on private property is 12 years,
while on public land, the limitation period is 30 years.
Narada clearly says regarding
ownership of property by possession -
1. The person who has written and oral
evidence in his favor but his property is in possession of someone else or
someone else is using his property, the person who has the above evidence is
not the owner even though he is the owner of the property(Narada.4/77-78)
2. The person who allows someone else to
enjoy his property continuously for 10 years, and no one opposes, then that
person loses his ownership over that property and the person who is enjoying or
possessing it is considered the owner of that property.and its ownership ceases
to be the ownership of the person consuming or possessing it( Narada.4/79).
3. Ordinarily a person who is not the
owner of the property but is enjoying and holding it is not considered to be
the owner of that property unless that person has been in possession of that
property for about 20 years(Narada.4/82)
4. If the person who is the owner of the
property is of sound mind and is a full adult, yet someone else is enjoying his
property and has been occupied by someone else and the original owner is not
opposing it, then the person in possession is the real owner of that property.
will be considered(4/80)Except property money and king's property.
5. If a person has been using and
occupying a property for three generations, then that person becomes the
original owner of that property.whether or not the owner of that property is
another(Narada.4/89)
6. In these 6 situations, a person
cannot be the owner of that property even after being in possession and
consuming it-
A. Stridhan property, B. Mortgage, C.
any property has been deposited in trust, D. property of a person of adult and
unsound mind, F.property of a person imprisoned by the state, G.deposit &
Government Property (Narada.4/81)
Thus we can say that possession as an
evidence is an important evidence in respect of revenue disputes.
IV. Divine
Evidence
Not only in India but also in the
ancient civilizations of other parts of the world, it has been considered an
important evidence by which people used to decide justice and injustice by
ascertaining the truth and falsehood.We can see examples of this type of
evidence in ancient history ,Like Sita ji's Agnipariksha in Ramayana,In
general, even today, we consider taking an oath or saying something under oath
as such divine evidence.For this reason Narad mentions fire and water in the
main parts of the judicial system (1/15).Because the divine test of truth and
falsehood can be done by the court of the plaintiff and the defendant only by
fire and water.
In the current Indian judicial
system, till some time ago, similar type of Daiviya Praman Pariksha has been
held, in which the witness, the plaintiff and the defendant were made to
testify by taking oath from their religious books.
According to Dev Rishi Narad, the
statements of such persons are accepted as witnesses in the court - [33]Narthasambandhino
napta na sahayaa na vairinah? Na
Drishtdosha: Prahrishtavya: Sakshina: Pratidushita:??(Narada.4/177)
"A person who is not a friend,
not a business partner, and not an enemy,Should not be a close relative and
also should not be a subordinate employee,One who is not known in the society
for giving false testimony and telling lies,Any person with whom the plaintiff
and the defendant have any relation of profit, greed, fear, jealousy, love or
selfishness, that person cannot be a witness.'
2.3. location & Place of courts
At present, the court has a fixed
place on which it is situated, but in ancient times, did the court have a fixed
place? We will have a brief discussion
about this here-
Generally the court of justice was
located near temples or places of worship.Rishi Parashar confirmsthis- [34]Dadya-ddevta-yaatanagrat:(8/38)
A fundamental reason for this was
that the person confessed to the crime due to spiritual fear like - Fear of
sin, Hell or God.
Acharya Kautilya mentions a different and better
system for this -
[35]Dharmastha
strayastrayo amatya janpada sandhi sangrahana dronamukha sthaniyeshu
vyavharikanarthan kuryu??(Arthashastra.3/1/1)
1. There should be a small court on the
border of 2 villages.
2. There should be an intermediate court
in the middle of 10 villages (sangrahana nyaayaalaya).
3. A High Court in the center of 400
villages (Called Dronamukha).
4. A Supreme or Central Court should be
formed among 800 villages(called Sthanika).
Three-Three Dharmasthas (judges)
should stay together at these places and arrange for behavior and crime cases.
Manusmriti[36](
8/87)Manu also clearly mentions the initiation of judicial proceedings in front
of gods and brahmins, from which we can know that generally the place of
judicial proceedings or court was near the god temples.
2.4.Procedure of Judgement
Causes and disputes on which judicial
proceedings were conducted-
According to ancient
Dharmshastrakaras(Jurists), these are the 19 reasons on which any judicial
proceeding is conducted([37]Narada
Smriti 1/16-20 , M[38]anusmriti
8/1-8)
1. Rinadanam -Disputes related to loan
transactions.
2. Upanidhi- Disputes related to mortgage and its
irregularities
3. Sambhuyasamutthan -Disputes related to joint labor and
its rewards
4. Dattapradanikam-Dispute regarding return of an item
5. Ashushrushabhyupetyam- Dispute related to non-performance of
service after promising to serve
6. Vetanasayapkarma -Disputes regarding not serving after
taking salary and not paying salary after getting service done
7. Aswamivikraya- Dispute related to selling something
without being the owner
8. Vikriyasampradanam -purchasing disputes
9. Kritanushaya - purchasing disputes
10. Samasyanpakarma -Hypocrisy controversy or hypocrisy
denial controversy
11. Seemabandha -land disputes
12. Stripunsayoga - man-woman dispute or family dispute
13. Dayabhaga -Disputes regarding share and
inheritance
14. Sahasam - high crime case - Rape
,Murder,Robbery,etc.
15. Steyam- Disputes related to theft, dishonesty
and adulteration
16. Vakparushyam -Dispute related to abusing and
insulting someone through speech
17. Dandaparushyam -Fight, fight and kidnapping related dispute.
18. Dhyutasamaruhyam- related to gambling, betting etc.
19. Prakirnaka -Whatever disputes arise other than
all the above disputes fall in this category.
According to Narada[39]
(1/12,13,14)There are four stages to every lawsuit process -
1. Udghatana -The Parties (plaintiff and defendant)
initiate a lawsuit by going to court.
1. Pratishthapana -Witnesses and evidence provide
stability to the case.
2. Nimalana -Court members examine the case
3. Nirnaya Prakashanam - After listening to the arguments
of both sides and examining the witnesses and evidence, the judge reaches a
decision as per his discretion.
According to Naradiya Dharmashastra,
judicial proceedings were conducted in writing and its records were also kept.
According to [40]Manu
(8/79-100)
Manu mainly considers the judicial
process to be completed in these stages -
1. The judge gets purified in the
morning and sits on the bench in front of the gods and Brahmins (8/87).
2. Make both the parties& witnesses
take oath of allegiance to truth and Dharma and listen to the arguments of both
(8/81-84)
3. Ask the witnesses to tell the truth
while showing them the fear of punishment for giving false testimony and fear
of their plight in the next world (8/88-94).
4. Examine the arguments given by both
sides and the evidence and statements given by witnesses impartially (8/44-46)
5. The judge, being completely satisfied
and careful, as per his discretion and as per the capacity of the criminal,
should give a decision and prescribe the punishment for him (8/125-126)
According to Acharya Kautilya, ([41]Arthashastra.3/2/27-28)the
rules to be considered before deciding the case are called facts for decision,
their number is 6 and they are helpful in achieving the truth -
1. Having witnessed the crime with one's
own eyes.
2. criminal confession
3. simplicity in debate
4. finding out the reasons for the crime
5. to make the truth come out under oath
If even with all this the exact truth
is not reached, then the court itself should get the investigation done by
detectives and should re-study the evidence of the witnesses and the arguments
of both the sides.
In Dharmashastra,([42]Narada.1/8)
the case (lawsuit) has been said to have four means(chatursadhana), four
legs(chaturpada)four places(chatusthana )and four interests(chaturhita)
influencing four(chaturvyapi)
1. Chatursadhana - Sama, Dama, Danda, Bheda
2. Chaturpada - Dharma(Law), vyavhara(Behaviour),
Chartra(Character), Rajshasana(Order of the sovereign)
3. chatusthana- Sabhya sakshi(Civilised witnesses or
Evidence),NyayaPustaka,(Code of Law)Danda(Punishment),Rajagya(order of court)
4. Chaturhita-Brahmana,Kshatriya,Vaishya,Shudra
beneficial to all four
5. Chaturvyapi -Witness, Parties,The judge,
Citizens, influencing all four
Briefly, these are the main forms of
judicial process as stated in Dharmashastra.
Conclusion
Thus, we can say that the sole aim of
the concept of judicial bench under the Dharmashastra is the establishment of
Dharma and the judicial process has been arranged under it by keeping Dharma at
the center.
Manu clearly says in this regard-
Dharm
aiva Hato-hanti Dharmo Rakshati Rakshita:?
Yatra
Dharmo Adharmena Satyam Yatranritena ch ?
Hanyate
Prekshmananam Hatastatra Sabhasada ??(Narada .3/ 8 , Manu. 8/14,15 )
Dharma is a broad concept which
includes human rights, justice, social duty, personal responsibility etc.
According to the above verse, to
protect Dharma is to protect oneself, human society and human rights and
encroachment on Dharma is encroachment on all these. Dharma is a subtle
detailed form of justice.In a court where justice and Dharma are not protected,
all the judicial members soon self-destruct.This is the basic principle of the
ancient Indian judicial process and on this basis the ancient Indian courts
functioned.
It is true that the Dharmashastras or
Smrititexts that we have today are interpolated and half-completed.A major
reason for this is the changes that have been taking place in Indian
civilization for thousands of years, the arrival of different cultures, the
rise and fall of different empires.During which lack of proper maintenance of
these huge texts is also a big reason.But this does not mean at all that
ancient Indian Dharmashastras has been completely lost and destroyed.Rather,
their original form has survived to a great extent even today, which can guide
us in the present and future.In the language of example, it is like an old
warrior who cannot fight himself but can make the present young warriors and
future warriors victorious by guiding them.Similarly, Dharmashastra is also not
in practice and prevalent today but even today the courts take a lot of
inspiration from it regarding Hindu law.Where concepts like untouchability and
casteism and many rules related to them are seen, due to which there is a lot
of opposition to the Dharmashastras, but it is just an example of the harsh
social system of ancient times which was not only in Indian civilization but
also in Egypt, Rome, Greece even America, Britain .This does not mean that we
should completely ignore the
Dharmashastras, they are living examples of our ancient legal system of
which we should be proud.Some things may be wrong in these, but the systems
given in them were more advanced and developed thousands of years ago than
other world civilizations of that time, which are inspirational even today.
In Manava Dharmashastras, we find a
clear and systematic mention of the judicial process, which is very advanced
and modern.There is no mention of keeping records of written documents in the
judicial process as ancient as in the Dharmashastras, anywhere else in the
world.We can say this much in brief about the judicial process and the concept
of the court as stated in the Dharma Shastra-
1. It was very well organized, clear and
fair.
2. This was the world's first known
authentic judicial process in which written records were kept.
3. The judicial bench of Dharmashastra
was systematically divided, with specific officers for each process.
4. The judicial process was interfered
with by religious practices and morality.The only reason for which was that the
person should not commit crimes due to supernatural punishment and should
become pure by accepting the crimes committed and suffering the punishment.
The Judiciary and the Judicial
Council as described in Manava Dharmashastras were a systematic mixture of
divine and cosmic justice and human justice.
History always teaches us to move
forward with new Ideas -
DharmarthKamaMokshanam Upadesha
Samanvitam Purva vrittam Katha yuktam Itihasam Prachakshate ||([43]Vishnudharmettara
Sanhita- 3/15/1)
The meaning of this verse is that
those ancient details and stories from which we get inspiration, preaching and
education to achieve Dharma, Artha, Kama and Moksha which are the 4 great goals
of human life are called history. Knowledgeable history is not just a
collection of stories. Rather, it also teaches us to make our present and
future society advanced and prosperous.Those containing old and useful stories
which show us the way to fulfill the goal of our life while improving our society
are called history.
Similarly, we should keep taking
inspiration from our Dharmashastras so that we can achieve our future judicial
goal.
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Article Information
JURY OF MANAV-DHARMSHASTRA – A BRIEF STUDY
Authors: ADVOCATE KESHAV DEV
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/24
- Issue 7
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International Journal for Legal Research and Analysis
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