Strictly for Internal Circulation - KCL

UNIT-III
1- CONCEPT OF STATE AND GOVERNMENT IN ANCIENT INDIA
2- 2- CONCEPT OF JUSTICE AND LAW IN ANCIENT INDIA
3- CONCI:.PT OF PUNISHMENT IN ANCIENT INDIA
CONTENTS:
1. Punishment
2. Two fold divisions a. Purification b. Terror
3. Punishment by caste a. Brahaman b. Kshatriya c. Vaish d. Shudra
4. Forms of punishment a. Censure b. Rebuke c. Pecuniary d. Corporal
5. Trial by ordeal
6. Conclusion a. Scientific b. Unscientific

S
U
K
M
A
K

Contents
For the sake of convenience the ancient Hindu period in its entirety can be studied chronologically as under:
(A) The vedic or pre-sutra period (Aryan civilization);
(B) The Dharma sutra period: This is the golden period of Hindu legal history. This period is further subdivided into (i) The Sutra period and (ii) The Smriti period; (Golden period of Law and Justice)
(C) Sutra period - Vishnu, Vashistha, Gautam, Apasthabha, Baudhayana
(D) Smiriti period - Manu, Yaznayalkya, Bhrispati, Narad.
(E) The post SmritiPeriod: This period mainly pertains to Nibandhakars and digest writers whose
contribution towards the enrichment of Hindu law is of great significance who wrote tikkas.

(A) THE VEDIC PERIOD

The Rigveda, one amongst the four Vedas (complied during 1500-1000 B.C.), throws a considerable light on
the structure of the society and social and political institutions existing in this age. Without going into the
details and controversies relating to the arrival of the Aryans in India which pertains to the field of history
rather than the work on legal history, study can be fruitfully carried out by having a look through the works
compiled by the sages living in that age. In this period law, religion and justice were closely interconnected
and there was no clear cut demarcation in the above fields. According to the information contained in
Rigveda, the life of the early Aryans was mainly pastoral and they depended upon agriculture as the main
source of livelihood. The social structure was mainly rural and the joint family system was a common
feature. Family was the basic unit of society.
According to Vardachariar, the people were composed of tribes. The territory in which a group of villages
possessing common tie was situated came to be known as janapada. The gotra was an aggregate of number
of families (kulas) and the gosthi, an aggregate of number of gotras. A number of gosh ties together formed a
grama and the head of the village was gramini 28, the village headman, represented the people before the
king whose office became hereditary in later times. The entire society was divided broadly into four
important castes, namely, Brahmins, priestly caste, the Kshatriya warrior class, the Vaisyas - agricultural
class and Sudras, the lowest caste, who served all the other three castes.
There was absence of central control of organised government in the modern sense.

40

Strictly for Internal Circulation - KCL

The entire territory was divided into small kingdoms ruled over by a king, as head of the State, not of the
society. He was symbolic or nominal head of the society because of lack of direct control over the people
who felt themselves bound by their own social order developed by the society itself in a community life.
"Respect for tradition and authority and blind faith rather than discriminating judgment are generally
supposed to be the primary formative factors of the early Hindu society despite the many disclosures of the
democratic principles in such characteristically Hindu institutions as the joint family, the communal
holdings of land in the typical village community, and the like, as well as in the numerous self-governing
29
kingless States in ancient India, the existence of which is attested by sober history ." It is also a fact of this
age that State and society had independent existence. The State and society had distinct spheres of activities.
Both of them were independent organisms with distinct functions to perform. "A policy of no-interference
was recognised as the ideal policy of the State, the functions "of which were ordinarily restricted to the
irreducible minimum, namely, the protection of life and property and realisation of revenue for the proper
execution of that duty so" The early Vedas know only monarchy. In the post Vedic era national life, both
economic and political, expressed itself into various types of self-governing institutions but the basic trait of
communal institutions continued to exist. The kingship (monarchy) gave place to republics and economic
life gave rise to the guilds of merchants and traders.

S
U
K
M
A
K

Among the bodies which regulated the community life we find mention in the Vedic literature that national
life and activities in the earliest times on record were expressed through popular assemblies and institutions.
The three most important and popular bodies were Sabha, Samiti and Parishad. The P arishad was an
advisory body on religious matters but it also discharged some judicial functions. The Samitiwas the body
for general deliberations of, all kinds of policy matters and discharged legislative and, judicial functions
also. It was the assembly of all the people and the most important function discharged by this body was the
election or re-election of the king or the Rajan and in return the king considered himself duty bound to
participate in the deliberations of the Samiti. From the nature of the functions discharged by this body it can
be inferred that it was a sovereign body.31 The Sabha was in all probability a body of select and elderly
people of the national judicature and it was due to this reason that the solutions of the Sabha were considered
binding on all the persons.
(B) CONCEPT OF JUSTICE OF LAW IN ANCIENT INDIA: (The Law And Judicial System In
Sutra And Smriti Period)
With the advance of times and social awarness amongst the people the Hindu society further progressed
towards civilisation. This period is the golden era of Hindu law mainly due to the reason that law
propounded by the Smriti writers was more systematic and comprehensive in nature and laid down certain
set principles to be followed by the people and the king alike in matters like marriage, inheritance,
succession, partition, etc. and there was no element of partiality. The principal Sutras are those of:
(i)
Baudliayana: The Dharma Sutra has not come down to us in original shape as some portion of it had
been destroyed. He treats variety of subjects including inheritance, adoption and marriage.
(ii) Apastamba: this is the best preserved Sutra. He deals with certain aspects of the law of marriage and of
inheritance besides criminal law.
(iii) Harita: This work is considered of great authority by Apastamba. This doctrine of jurisdiction in Hindu
law is ascribed to him.
(iv) Vishnu: It deals with rules of criminal and civil law, inheritance, marriage, debt, interest, treasure and
various other subjects.
(v) Vashishta: It deals in detail with sources and jurisdiction of law and rules of inheritance, marriage,
adoption. He stresses the importance of usage and describes it as a supplement to law which seems sensible

41

Strictly for Internal Circulation - KCL

to a great extent
(vi) Gautama: The Dharma Sutras of Gautama is the oldest of the extant works on law. It lays down law both
on religious and legal matters. It contains law relating to inheritance, partition and stridhan. Gautama
attaches adequate importance to culture and tradition, and practices of cultivators, traders, herdsmen, money
32
lenders and artisans. According to Gautama, marriage under Hindu law is a social contract and bondage
and could be contracted between persons who were not of the same pravaras and who were not related within
six degrees on the father's side and four degrees on the mother's side. Gautam permitted marriage between
different castes also.
The important Smritis which contributed immensely towards the development of Hindu law are:
(i) The Institute of Manu: Manu Smritiwas written somewhere between 200 B.C. and 100 A.D. Manu
Smritiis a landmark in the history of Hindu law and it is a source of knowledge on Hindu
jurisprudence. Law of inheritance, property, contracts, partnership, master and servant are some
of the branches of law upon which brilliant commentary had been written by him which is
considered of great authority. The ordinances of Manu are based on ancient usages. It is a unique
work of its kind due to its systematic and cogent treatment of existing rules which governed the
human relations inter se.

S
U
K
M
A
K

(ii) Yajnavalkya Smriti; The Code of Yajnavalkya to a great extent is based on Manu Smriti itself but he
is more liberal on certain matters than Manu, on a number of matters and particularly on the
questions of status of Sudras, women's right of property and inheritance, criminal penalty etc on
which Manu was adamant. 'Yajnavalkya although a follower of conventional conservatism is
decidedly more liberal than Manu'.

Yajnavalkya Code also deals exhaustively with law of mortgages, hypothecation and association
of persons in joint business dealings and Partnership and" the law of procedure and evidence. He
endorsed the rule of pleading which insisted upon all material facts on which party relied, being
set out in his statement of claim or defense.

(iii)Narada Smriti: Narada Smriti was compiled somewhere about 200 AD. He does not claim
originality in the treatment of the subject of law but he purports to give in a systematic way what
had already been stated by Manu in his Code. In a word it was more systemized. Narada differs
from Manu in many important points. He is emphatic and categorical that custom is powerful
and overrides any text of sacred law i.e. the dominance of customs over law. He was fully
conscious of the social, economic and political changes taking place in the social set up in his
treatment of law. He states the law in a lucid and straight forward manner which is readily
assimilated. The important branches of law about which he gives brilliant expositions deal with
inheritance, ownership, i property, gifts, partnership, the age of majority, shares of widows and
unmarried sisters, partition between sons, generally after the I death of the father. He even
recognizes separation and remarriage by a woman under certain circumstances and seems
against the custom of satL All this is a clear proof that he was well alive to the realities of life. A
striking feature of Narada Smritiis that it is the first of the Dharmasutras to accept and record the
principles that kingmade laws could override any rule of law laid down in the Smritis.
(iv)Brihaspati Smriti: The Smriti of Brihaspati is unfortunately not available in its entirety. It was
compiled somewhere one or two centuries after Narada Smriti. Brihaspati Smritideals with
adjective and procedural law. He deals with some of the important branches of substantive law
such as rules of partnership, agency and civil wrongs. The element of mutual agency, right of

42

Strictly for Internal Circulation - KCL

compensation for wrongs committed by a partner were some of the important rules advocated by
him which find a place in the modern law of partnership also. His treatment of the rules of
procedure is far advanced than those of his predecessors. He speaks of four stages of judicial
procedure, namely, (a) filing of plaint, (b) filing of reply c) suit and (d) passing the decree. He
advocates the complete disclosure of facts in the plaint in precise and clear terms and similarly
imposes the duty on the adversory to reply in cogent and logical manner avoiding all
unnecessary and irrelevant information so that justice may be done expeditiously to the
aggrieved party. Because irrelevant information is an obstacle in the way of justice and law.
(v) Katyana Smriti: The Smritiwas compiled somewhere between fourth and fifth Century A.D. This
Smriti also like Brihspati Smritiis not available in its entirety. The great importance of this
Smritilies in the variety of subjects which it deals with. It deals with both substantive and
adjective law. According to Katyana, Land belongs to the subjects and not to the king Le. belongs
to its tiller. The king is only the protector of the interests of his subjects in return for which he is
entitled to land revenue. Katyana refers to Brihaspati Smritifreely on many points. The most
striking feature of this Smritiis the treatment of the subject of the stridhan and the Hindu law of
stridhan Le. dowry of modern times was primarily based-on the rules laid down by Narada and
Katyana. He also deals with the rules of adjective law, namely, rules of pleadings and evidence.

S
U
K
M
A
K

JUDICIAL SYSTEM
In Sutras and Smritis periods the hierarchy of courts was of the following order. At the apex of judicial
hierarchy was the Royal Court (Sabha) staffed by experienced councilors who advised the king on the point
of law in accordance with the law laid down in the sacred text books and local customs. The other tribunals
which discharged judicial functions as dealt in detail by Yajnavalkya were: (a) Kula, (b) Shreni and ( c) Puga
which formed part of the judicial machinery working and deriving their authority from the king. 'Kula' was
an assembly of persons of the same family or community, tribe, castes or race and charged with the function
to decide the c:isputes amongst the persons who felt equally bound by its decisions. Shreniwas the assembly
or association of persons following the same avocation or trade. The term Puga was interpreted in three
senses, namely, (a) companies of traders and merchants and others, (b) association of persons differing in
castes whose mode of subsistence was not fixed and (c) riders on elephants and horses, etc. But Yajnavalkya
explains it as the assembly of the inhabitants of a village or town of different castes and occupations on
different issues.

(C) THE LAW AND JUDICIAL SYSTEM IN POSTSMRITI PERIOD THE ARTHASHASTRA OF
KAUTILYA
The celebrated work of Kautilya or Chanakya (Arthshastra) as he is popularly known was compiled
somewhere about 300 B.C. Chanakya was the Minister Prime of Chandra Gupta Maurya and advised him on
financial matters of the State. The Dharma Sutras and Smritis as discussed earlier are works which mainly
deal with Arthshastra though rules regulating the human conduct also find a prominent place in them.
Detailed rules relating to civil rights, duties, wrongs, criminal law and procedure are dealt with in great
detail and in their manifold aspects with analytical approach. In the ancient texts the law arid religion were
intermixed and there was no clear cut distinction drawn between them simply due to the reason that rules
were meant for spiritual and moral uplift of the human beings rather than materialistic approach.
Arthashastra of Kautilya is a treatment of an entirely different branch of law as he deals with the rights,
duties and responsibility of the king in the administration of the State including judicial administration for
the welfare of the people. The king is a central figure in the entire work. This exclusive and systematic
treatment of law was a distinct achievement of the Arthashastra as contrasted with the foregoing
Dharmashastra.33 Kautilya's Arthashastra is secular in character and the rules enunciated were based on the

43

Strictly for Internal Circulation - KCL

actual administration of the State. He was pioneer in the sense that he for the first time gave a systematic
treatment to 1tle secular law. Pure municipal law, however, did not originate with Kautilya and Chandra
gupta. The Arthashastra is based on ancient works of its class treating treaties and Codes on the applied
science of Government called Dhandanitis and ArthCishastras ,. because Kautilya refers to various
authorities throughout his work to support his contentions, which clearly shows earlier works before his
Arthshastra.
The various aspects of law as they are discussed in the Arthashastra of Kautilya can be arranged under the
following headings for better appreciation of the subject matter:
(a) Civil law
(b) Criminal Law

S
U
K
M
A
K

(a) Civil Law - Book III and Book IV of Kautilya deal with the administration of law. The important
topics of civil law dealt with by him relates to the essentials of a contractor agreement, the grounds of
invalidation, punishments for fraud and the principles of agency. Chapters II to IV of Book III deal
with the topic of MARRIAGE. According Kautilya, 'marriage is at the root of all disputes i1cIuding
property disputes'. He recognises eight types of Marriages namely-brahma, prajapatya, arsha, daiva,
gandharva, asura, takshasa and paisacha. Each earlier form of marriage was treated as superior to its
latter form. The first four forms of marriages were valid on approval by the father and the latter ages
were approvable provided it pleased all concerned with the marriage. He lavoured monogamy but
accorded sanction to a man who could marry any number of women for whom he could pay the sulka
(money in consideration of marriage) and stridhana. Under certain circumstances, women, on the
other hand, did not possess the right of re-marriage till her husband was alive. But if the husband was
abroad for 10 or more years or dead or had become ascetic him the woman could marry the brother of
her husband or in his absence any sagotra of the husband or with the permission of judges any person
of her liking.
(b) Divorce: It could be obtained in the first four kinds of marriages mentioned above Le. in the latter
four forms of marriages it could be obtained on the ground of mutual enmity between the spouses.
Important features were-neither of the spouses could obtain a divorce against the will of the other. A
wife could abandon the husband who (a) was of bad character or (b) had long gone abroad or (c) had
become a traitor or (d) was likely to endanger the life of his wife or (e) had fallen from his caste or (f)
had lost virility. He accorded equal status to men and women in contrast to later developments in
Hindu Law.
Chapters V, VI and VII of Book III deal with the topic of partition and inheritance. According to the rules,
male heirs of a man upto fourth degree had the right to inherit the ancestral property to the exclusion of
others. In the absence of sons property would go to brothers and in their absence to daughters and in their
absence to father and then to the father's brothers and descendants. In the absence of heir the property
went to king but same did not apply to Brahmin whose property went to those learned in Vedas. Persons
who suffered bodily infirmity did not enjoy the right of inheritance. The property belonging to the
female passed on to the kinsmen of the lady after her death: first, to her sons and daughters and in their
absence to husband (that amount only which he had given to his wife). Her parents and relations could
get back the gifts and dowry given by them to her in marriage.
Partition It was to take place only when all the heirs had attained majority. Self-acquired property or gains
of learning were not liable to be partitioned. The partition was made in accordance with the local customs
and traditions.

44

Strictly for Internal Circulation - KCL

Contracts: As regards contracts an extremely comprehensive treatment of the concept has been laid down
in Arthashastra. Every type of contract inclUding sale, purchase, marriage, etc. have been dealt with, with
remarkable precision and appealing logic. A contract was valid if made in the open with free consent by
competent parties and if it was not against the public policy and morals i.e. it was to be fair. Fraud and
misrepresentation vitiated the contract. The invalid contracts could be rescinded by the party and the
wrongdoer suffered the damages as well as penalty, so as the others could take a lesson.
Miscellaneous: Among the miscellaneous topics worth mentioning are debts, deposits, pledges, master and
servants, labourers cooperative undertakings, etc. Debts between husband and wife, son and father and
undivided brothers were irrecoverable. The rules were laid down for proving the claims against debtors.
Taking interest on debt beyond the prescribed limit was punishable as it was counted an offence. As regards
deposits and pledges which were common in those days, the depository and the pledged were liable in some
cases of misappropriation, whereas in some other cases the State was liable. Slavery was not recognised and
the sale of an Aryan by any caste was punishable though in certain calamities his life could be mortgaged for
money.

S
U
K
M
A
K

A servant neglecting or unreasonably putting off work and a master unreasonably refusing to accept work
from his servants were equally guilty and fined i.e. no partiality among them. More or less the same rules
were applicable in the case of cooperative undertakings and guilds.
Criminal Law: The last four chapters of Arthashastra Book III and Book IV deal with the concept of crimes
and prevention of offences. Crimes in the nature of robbery, defamation, assault, gambling, etc. are dealt
with in great detailed analysis. Sudden and direct seizure of property was termed as robbery and fraudulent
and indirect seizure as theft. Contemptuous talk or intimidation constituted the offence of defamation. Truth
was no defence for abusive words. Touching, striking or hurting constituted the offence of assault. Assault
could be bloodless or with blood. The latter form was considered a more serious offence. Gambling was also
an offence but not punishable. The king regulated it through his own officers who collected percentage from
the gamblers. Kautilya also mentions offences against animals, trees and immovable property. The other
types of offenses enumerated by him include the offences in the nature of murder, abortion, rape, adultery,
sedition and offences against the king. He left no aspect untouched in this regard.
Sexual offences: Such offences find a special mention in his work. In such offences the woman was also
punishable if she abetted the offence or showed her willingness i.e. no partiality. In all types of sexual
offences, the abettor of the offence was equally punishable as the principal offender. Sexual intercourse with
a maiden of the same caste or of low caste was no offence if committed with her consent. He also deals with
crimes committed by public servants and prescribes stringent punishment for them if they committed crimes
by abusing their official position as it was ultimately the king who was to be blamed for such abusing of their
official position as it was the acts of his servants. Such was the form of criminal law as mentioned in
Arthashastra.
CONCEPT OF DAND IN ANCIENT INDIA: (Punishment)
According to Manu, one of the principal objectives of punishment is the protection of the people and the
state. 'Penalty', says he, keeps the people under control, penalty protects them, penalty remains awake while
people are asleep, so the wise have regarded punishments as a dharma or a source of righteousness.
Therefore, the ends of punishments in ancient Hindu law were IIIIo-fold: (a) prevention of crimes by
creating a terror in the minds of persons by punishing them and (b) purification of the culprit himself as
according to Manu, limen who are guilty of crimes being condemned by the king become pure and go to
heaven in the same way as good and virtuous men.' With these ends in view, the law had taken into
consideration the intention, motive and the Et itself to a large extent while prescribing the punishments for

45

Strictly for Internal Circulation - KCL

the various types of offences. It was in this context that law had provided that an infant who was incapable of
differentiating right from wrong was exempt from criminal liability. Similarly, the law did ID attribute any
criminal liability upon those persons who because of incapacity and infirmity were incapable to foresee the
Consequences of their acts, and would be treated as innocent.
The Hindu law of crimes, treated crimes, as disturbing the peace of the king and as such the offender was
made liable for punishment. The king while imposing punishments upon the offenders took into
consideration several facts like the nature of and defence, the time and place, the strength, age, avocation,
motive, etc.
One of the peculiar features of the ancient Hindu law was the differentiation which it made between the
members of different castes with regard to the intensity of punishments. The Brahmins as a class enjoyed
certain privileges and immunities with regard to certain types of punishment which could not be inflicted
upon them when they committed an offence which was treated as such under the law. A Brahman, if he
committed a less serious offence was not subject to corporal punishment which otherwise could be imposed
upon a person if he belonged to another caste. Similarly even, for very serious offences, a Brahman could
only be imprisoned or branded and banished from the country under pain of ignominy and disgrace. Not
only was this greatest privilege made available to the Brahmins by the law that they enjoyed immunity from
capital sentence. Such was an illogical law of punishment which was more favourable to the Brahmins, a
super-privileged class for reasons not satisfactorily explained by the writers who have written volumes on
the ancient Indian legal system. It was perhaps because Manu believed in the theory of Karma and
transmigration of soul.
Forms of Punishments Yajnavalkya speaks of four classes of punishments inflicted upon the criminals,
namely:

S
U
K
M
A
K

(a) Censure, (b) Rebuke, (c) Pecuniary and (d) Corporal punishments including banishment, branding,
cutting off limbs, body organs, etc. The law had provided for almost all types of crimes to be punished. It was
the duty of the king and his officers to see that proper punishment appropriate to the particular offence
committed by a person was imposed upon the wrong doer. As ready discussed due consideration was given
to the time and place, the strength, age, avocation and motive of the wrongdoer who committed the offence
at the time of imposing the punishment prescribed by the law. Broadly, the censure and rebuke were
considered lighter types of punishments and were imposed upon person who committed less serious
offences in nature. Pecuniary like corporal punishments were prescribed for serious offences such as bodily
injury, theft and other offences which disturbed the peace and tranquility of the State.
Finally, the ancient Hindu law had also made provision for the imposition of death penalty for grave serious
offences such as murder.

In ancient India the conception of justice was the upholding of the principles of dharma, a path or virtue to be
followed by II alike without any partiality. Any deviation from the virtuous path was made punishable by
law. But the law of crimes and punishment was, though elaborate but incoherent and to some extent
unscientific and irrational. The procedure for testing the truthfulness of the witnesses by subjecting them to
various ordeals such as ordeal by balance, ordeal of fire, ordeal of water and ordeal of poison, were most
barbarous and unscientific. But viewing them in the context of social conditions then prevailing they had
some justification in controlling and keeping under check the evil tendency of persons telling lies before the
judicial tribunals. Not only this, the punishment. Such as cutting off limbs is cases of certain types of
offences was also barbarous and uncivilized. The law of crimes was most unscientific with regard to
punishments inflicted upon Brahmins, for even serious offences committed by them they enjoyed privileges

46

Strictly for Internal Circulation - KCL

and immunities as compared to other persons who unfortunately belonged to other castes, considered
inferior by the law then prevailing. It is a matter of debate because Manu believed in the theory of Karma and
transmigration of soul because our present birth depends upon our past deeds and our future will depend on
our present work.
BIBLIOGRAPHY
1. R. K. Mukherjee Local Government In Ancient India.
2. K. P. Jaiswal : Hindu Polity
3. Dr. U. C. Sarkar Epochs in Hindu Legal History.
QUESTIONS:
1. Critically analysis the concept of justice and law in ancient India. Was it scientific? Comment.
2. Explain critically the concept of punishment (dand) in ancient India.
3. Describe the evolution of state and government in ancient India.

S
U
K
M
A
K
47