MODULE 1: LEGAL SYSTEM IN ANCIENT INDIA

DHARMA

1. MEANING:
a. ‘Dharma’ which means righteousness and duty.
b. Dharma is anything that is right, just, and moral and it aims for the welfare of the state and
mainly, its people. It is nothing but the body of rules and believes including in itself the religious
rights, rules of conduct and duties.
c. It is a duty-based legal system that is every individual owed a duty towards another member of
the society.
d. The jurisprudence of ancient India was shaped by the concept of `Dharma’, or rules of right
conduct.
e. It is the Indian version of natural law.
f. Meaning according to various Indian Religions
i. In Hindu theory the concept of Dharma has been taken from the Sanskrit term,
‘Dharm’ which signifies certain order by which society must function for the welfare
of human beings and make the functioning of society possible.
ii. In Islam the concept of universal brotherhood dictates that all Muslims are brothers
and the belief that the Lord is one and only one and Prophet Muhammad was his
messenger.
iii. Dharma in Jainism refers to the teachings of Tirthankara (Jina) and the body of
doctrine pertaining to the purification and moral transformation of human beings.
iv. In Sikhism, dharma means the path of righteousness and proper religious practice and
one's own moral duties toward God.
v. In Buddhism, dharma incorporates the teachings and doctrines of the founder of
Buddhism, the Buddha.
vi. The Tamil term for Dharam is Aram and the concept has been described in Ancient
moral text Tirukkuaral
g. According to Duguit: “The only right which any man can possess is the right to do his duty”.
h. According to Justice M. Rama Jois, “Dharma is that which sustains and ensures progress and
welfare of all in this world and eternal bliss in the other world. The Dharma is promulgated
in the form of command”.
2. ORIGIN OF THE CONCEPT OF DHARMA:
a. Dharma is primarily based on the Vedas and has many texts such as Sruti, Smriti and moral
laws (sadachar).
b. It first appeared in Rigveda where it had a range of meanings encompassing “something
established or firm”.
c. The meaning of the word dharma depends on the context, and its meaning has evolved as ideas
of Hinduism have developed through history. In the earliest texts and ancient myths of
Hinduism, dharma meant cosmic law, the rules that created the universe from chaos, as well as
rituals; in later Vedas, Upanishads, Puranas and the Epics, the meaning became refined, richer,
and more complex, and the word was applied to diverse contexts
d. Dharma regulated and guided the activities of every person in the society including the king.
Mahabharata, calls upon the subjects to revolt against the autocratic and oppressive king who
does not follow dharma.
e. In the Second Book of Ramayana, for example, a peasant asks the King to do what dharma
morally requires of him, the King agrees and does so even though his compliance with the law
of dharma costs him dearly. Similarly, dharma is at the centre of all major events in the life of
Rama, Sita, and Lakshman in Ramayana
3. IMPORTANT TYPES OF DHARMA INCLUDED:
a. Raj-dharma (obligation of kings or civil law);
b. Apaddharma (obligations during a crisis);
c. Sadharana-dharma (responsibility of all people);
d. Kula-dharma (responsibility within family);
e. Varnashrama-dharma (obligations in compliance with one’s status, gender, and stage of
existence);
f. Sva-dharma (an individual’s particular dharma).
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VEDIC AGE

CASTE SYSTEM
1. MEANING
The caste system emerged in ancient India as unique and one of the most rigid social systems ever
developed in any part of the world. A caste was a social group consisting solely of persons born in it.
2. DIVISIONS IN CASTE
Whole society was divided into four main castes. The four castes were precisely and clearly defined and
rules pertaining to their lawful activities and functions dominated all social activities. The segregation of
people based on their Varna was intended to decongest the responsibilities of one's life, preserve the
purity of a caste, and establish eternal order. This would pre-resolve and avoid all forms of disputes
originating from conflicts within the business and encroachment on respective duties. The first mention
of Varna is found in the Purusha Suktam verse of the ancient Sanskrit Rig Veda.
The classification is as follows
a.
The Brahmins were considered to be the most superior caste. The scholars and priests of
the Hindus belonged to this caste. They had in law and in fact privileges and prerogatives
not held by other sections of Hindu society.
b. The Kshatriyas were the nobles and warriors and to this caste rulers of various States
and kingdoms mostly belonged.
c. The Vaisyas were merchants and traders.
d. The Sudras were the workers and ranked lowest.
3. EVOLUTION OF THE CASTE SYSTEM
In later centuries caste exclusiveness became absolute and reached its peak in caste panchayats. Each
caste panchayat was regarded as supreme authority for the particular caste in each village. It gave stability
to Indian society. Though the caste system was conservative still it was most needed to suit the
requirements of ancient India.
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SHRUTI
1. MEANING
It is considered to be a product of divine revelation, it is the first source of Dharma, Shruti contains
narration on everything possible ranging from military to politics to common people’s life. Shruti’s are
transmitted verbally across the generations and fixed.
2. CLASSIFICATIONS OF SHRUTI
a. The Four Vedas
The Vedas are considered the oldest Hindu texts. Scholars believe that they were written down some 2,500
years ago, though the tradition often dates them to the beginning of Kali-yuga (circa 3000 BCE). Some
Hindus say that there was originally only one Veda, the Yajur, which was later divided into four. Scholars,
however, usually consider the Rig Veda the oldest of all Hindu writings. According to Max Muller, Vedas
date back to 1500 B.C. (Early Vedic Period 1500-1000 BC and Later Vedic Period 1000-600 BC).
Vedas primarily contain theories about sacrifices, rituals, and customs. Vedas do refer to forms of marriage,
the requirement of a son, the exclusion of women from an inheritance, and partition but these are not very
clear-cut laws.
i. Rigveda
It is divided into ten books (called mandalas) and has 1028 hymns in praise of various deities. These include
Indra, Agni, Vishnu, Rudra, Varuna, and other early or “Vedic gods.” It also contains the famous Gayatri
mantra
Rig Veda invokes deities for the liberty of body(tan), shelter (skirdhi), and life (jibhasi) which sounds
similar to modern rights like the right to physical liberty, right to shelter, and right to life.
ii. Yajur Veda
A priestly handbook for use in the performance of yajnas (sacrifices) It is divided into two sections, the
earlier “black” and the more recent “white.”. It contains hymns to perform Vedic sacrifices and rituals
iii. Sama Veda
This consists of chants and melodies to be sung during worship and the performance of yajna.
iv. Atharva Veda
Contains hymns, mantras and incantations, largely outside the scope of yajna. Such as magic, ghosts, tantra-
mantra, superstition, medicinal properties of plants, etc.
b. Brahmanas [ they explain the Vedic hymns]
It is the text on rituals, ceremonies, sacrifices and symbolic sacrifices. Apart from spiritual cognizance, they
include scientific knowledge like astronomy and geometry.
c. Aranyakas
Forest books which were the texts to be read in the forest. They provide philosophical and meditative
justifications for the Vedic sacrifices.
d. Upanishads or Vedantas
Upanishads are mainly philosophical-religious texts that constitute the Indian philosophy and delve deep
into philosophical questions like the cause and nature of the world, who we are, where we go after this
world, what is the purpose of human subsistence, etc. In total there are 108 Upanishads.
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SMRITI
1. MEANING
[that which is remembered, written down]
literarily means ‘as remembered’ and it refers to tradition. They are the humanly authored written texts that
contain the collected traditions. With smritis, a systematic study and teaching of Vedas started. Smritis are
a written record of the knowledge of the sages. Smritis lays down laws and religious teachings.
2. CLASSIFICATION
The smritis can be divided into two - Early smritis (Dharmasutras) and Later smritis (Dharmashastras).
a. Itihasa [ Epics]
b. Upaveda
c. Puranas
d. Upanga
e. Tantras
f. Dharmasutras [ sutra]
Aachara; ‘Vyavâhara and ‘Prâyaschitta’.Ācāra: Rules pertaining to daily rituals, life-cycle cites, and other
duties of four castes or varnas.
Vyavahāra: Rules pertaining to the procedures for resolving doubts about dharma and rules of substantive
law are categorized according to the standard eighteen titles of Hindu law.
• According to Kātyāyana "Vi means ‘various,’ ava means ‘doubt,’ hara is ‘removal’. The legal
procedure is called as vyavahāra because ‘it removes various doubts.
• According to Donald Davis, “There are two basic meanings of vyavahāra. The first is a general
sense of practice, business, or everyday transactions. The other, specific sense is legal procedure,
the processes of litigation including a trial.”
Prāyaścitta: Rules about expiations and penances for violations of the rules of dharma.
Some of the important sages whose dharmasutras are known are: Gautama, Baudhayan, Apastamba, Harita,
Vashistha, and Vishnu.
Gautama
He belonged to Sam veda school and deals exclusively with legal and religious matter. His work has
mentioned about inheritance, partition, and stridhan.
• Śūdra who intentionally reviles twice-born men by criminal abuse, or criminally assaults them with
blows, shall be deprived of the limb with which he offends.
• If he has criminal intercourse with an Āryan woman, his organ shall be cut off, and all his property
be confiscated.
• If he recites (Vedic texts), his tongue shall be cut out.
• A Kṣatriya (shall be fined) one hundred (Ancient Coins) if he abuses a Brāhmaṇa
• A Vaiśya (who abuses a Brāhmaṇa, shall pay) one and a half (times as much as a Kṣatriya).
• But a Brāhmaṇa who abuses a Kṣatriya shall pay fifty. In disputed cases the truth shall be
established by means of witnesses.
Baudhayana
He belonged to the Krishna Yajurveda School and was probably from Andhra Pradesh. His work has
mentioned marriage, sonship, and inheritance. He also refers to various customs of his region such as
marriage to his maternal uncle's daughter.
• 'Anybody but a Brāhmaṇa shall suffer corporal punishment for adultery.
• ''The wives (of men) of all castes must be guarded more carefully than wealth.
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• Women (possess) an unparalleled means of purification; they never become (entirely) foul. For
month by month, their temporary uncleanness removes their sins. ''Soma gave them cleanliness,
the Gandharva their melodious voice, and Fire purity of all (limbs); therefore, women are free from
stains.
• 'A Brāhmaṇa who unintentionally approaches a female of the Caṇḍāla caste, eats (food given by a
Caṇḍāla) or receives (presents from him), becomes an outcast; but (if he does it) intentionally, he
becomes equal (to a Caṇḍāla).
Apastamba
His sutra is most preserved. He also belonged to Krishna Yajurveda school from Andhra Pradesh. His
language is very clear and forceful
There are) four castes--Brāhmaṇas, Kṣatriyas, Vaiśyas, and Śūdras. Amongst these, each preceding (caste)
is superior by birth to the one following.
• To serve the other (three) castes (is ordained) for the Śūdra.
• Intercourse, eating, and intermarriage with Śūdra should be avoided by Brahmana.
• In the cases of (men of) other castes, the king, after having examined their actions, may punish
them even by death. And the king shall not punish on suspicion.
• But having carefully investigated (the case) by means of questions (addressed to witnesses) and
even of ordeals, the king may proceed to punish.
• A king who acts thus, gains both (this and the next) world.
Vashishtha
He was from North India and followed the Rigveda school. He recognizes the remarriage of virgin widows.
• (Brāhmaṇas) who neither study nor teach the Veda nor keep sacred fires become equal to Śūdras.
• A wife, (though) tainted by sin, whether she be quarrelsome, or have left the house, or have suffered
criminal force, or have fallen into the hands of thieves, must not be abandoned; to forsake her is
not prescribed (by the sacred law). Let him wait for the time of her courses; by her temporary
uncleanness, she becomes pure.
• Women (possess) an unequaled means of purification; they never become (entirely) foul. For
month by month, their temporary uncleanness removes their sins. Women belong first to three
gods, Soma (the moon), the Gandharva, and Fire, and come afterward into the possession of men;
according to the law, they cannot be contaminated.

1. Dharmashastras [shlokas]
Dharmashastras were mostly in metrical verses and were based on Dharmasutras. However, they were a lot
more systematic and clearer.
The texts cover ashrama (life stages), varna (social classes), purushartha (right life aims), personal virtues
and duties including ahimsa (nonviolence) against all living beings, just war regulations, and other topics.
The Dharmashastras, unlike the Vedas, are not the result of divine revelations. As a result, they are
vulnerable to the flaws that the human mind is prone to.
Some of the most prominent Dharmashastras are-Manusmriti, Yajnavalkya Smriti, Naradasmriti,
Visnusmriti and Brihaspatismriti
Manusmriti
• Manusmriti contains about 2685 verses in 12 chapters.
• Manusmriti is considered the first code of Civil and Criminal Law in India.
• It is considered to be the most authoritative work on Hindu Law.
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• According to him ‘Dharma’ was the supreme power in the state.

• King is considered merely an instrument to realize the goal of Dharma.
• The text is composed in metric Shlokas (verses), in the form of a dialogue between a teacher and
disciples who are eager to learn about the various aspects of dharma.
• Manusmriti is known as Mānava-Dharmaśāstra or Laws of Manu or Code of Manu.
• We can say that it is a compilation of the customary law, and exhibits the social organization which
the Brahmans, after their successful struggle for the supremacy, had established in the Middle Land
of North India.
• The text can be broadly divided into four, each of different lengths. and each further divided into
subsections.
o Creation of the world
o Source of dharma
o The dharma of the four social classes
o Law of karma, rebirth and final liberation
• Duties Delegated to Different Castes
o The duties of the Brahmins are learning and teaching, performing religious sacrifices and
getting them performed taking and giving donations.
o The duties assigned to Kshatriya include protection of common men, to donate, to
perform religious sacrifices, to recite Vedas, to abstain from all forms of addictions etc.
o The duties assigned to Vaishyas include protection of animal’s, donations, religious
sacrifices, business, trade, money lending and agriculture.
o The Shuras are expected to serve the other three caste with benevolence and good will.
o Manu allowed the three twice born castes to learn Veda but only Brahmana was allowed
to teach it. On account of his pre-eminence, the superiority of his origin, observance of
restrictive rules and on account of his particular sanctification, the Brahmana is the lord
of all castes.
• Marriage
o The minimum requirement for a Hindu man to get married is to find a chaste woman
from his own caste.
o For ‘twice-born men’ a girl of equal caste has been recommended for the first marriage-
sacrament.
o Twice-born men, marrying, through infatuation, a girl of the low caste, quickly reduce their
families, along with their offspring, to the position of the Śūdra.
o One who marries a Śūdra girl becomes an outcast.
o Manu further says that only a woman with auspicious marks on her body may be married.
Manu goes on to mention several categories of women who cannot be married.
o Chapter 3 law 8: “One should not marry women who have reddish hair, redundant parts
of the body [such as six fingers], one who is often sick, one without hair or having
excessive hair and one who has red eyes.” The very next law to this says, “One should not
marry women whose names are similar to constellations, trees, rivers, those from a low
caste, mountains, birds, snakes, slaves or those whose names inspire terror.”
o Law 10 and 11 of chapter 3 says- “Wise men should not marry women who do not have
a brother and whose parents are not socially well known.” (3:10)
o “One should marry a female with a faultless body, bearing an agreeable name, having her
gait like that of the swan or the elephant, having fine hair on the body and the head, and
fine teeth, and with tender limbs.” (3:11).
o A few other categories of women who cannot be married are sapindas of the Hindu man
on his mother's side, or women who are related to him on his father's side of the family.
[The concept of Sapinda relationship as defined in the Smritis as 7 degrees with respect to
father’s side and 5 degrees with respect to mother’s side. But after HMA, as per Section
3(f) it has been relaxed. Sapinda Relationship extends as far as 3rd generation in the line
of ascent through the mother in case of both the parties. Sapinda relationships extends as
far as 5th generation in the line of ascent through the father in case of both the parties].
o degrees of prohibited relationship- two persons are said to be within the degrees of
prohibited relationship;
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o if one is a lineal ascendant of the other; or

o if one was the wife or husband of a lineal ascendant or descendant of the other; or
o if one was the wife of the brother or of the father's or mother's brother or of the
grandfather's or grandmother's brother of the other; or
o if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother
and sister or of two brothers or of two sisters;
• Types of Weddings
o Brahma Vivaha– In this way of conducting weddings, the father of the bride gives her
away to a knower of the Vedas invited by the father himself after decorating the bride with
jewellery and fine clothes.
o Daiva Vivah– In this type of wedding the father of the bride gives her away to the
officiating priest at a yagya or a yajna (a sacrifice), while the yajna is ongoing.
o Arsha Vivaha– In this type of Hindu wedding, the father of the bride gives her away to a
groom who gifts to the father one cow and one bull or two cows and two bulls.
o Prajapatya Vivaah – similar to the Brahma vivaah, except that the bride's father gives her
away as a gift, not to the groom, but to the groom's father.
o Gaandharva Vivah (wedding in the way followed by gandharvas)– The couple simply
choose to marry by mutual consent.
o Asura Vivaah – In this type of Hindu wedding, the groom voluntarily gives as much money
and gifts as he can afford to give to the bride and to her family in order to get her consent
for marriage.
o Rakshasa Vivaah-where the groom forcibly abducts the bride against her will and her
family's will.
o Paishacha Vivah (wedding in the manner of pishaachas, or lost souls)– where the man
forces himself on a woman when she is insentient: when she is drugged or drunken,
possessed or unconscious and thus is married unwillingly, and which has been outlawed
by Manu.
• Second Marriage
o Manu permits second marriages for men. He is in fact much more liberal in terms of caste
requirements in the case of second marriages than in first marriages.
o He says that any man can marry any woman of his own caste or a lower caste should he
decide to take a second wife.
o This in part shows the concept of Anuloma and Pratiloma; the first being a marriage
between a man of a higher caste and a woman of a lower caste.
o Pratiloma is not allowed.
o However, this comes with the proviso that any Brahman who takes a Shudra wife as his
second wife will go to hell after death if he sleeps with her. If he happens to procreate
with her, he will lose his caste and acquire her caste.
• Divorce
o Manusmriti offers an inconsistent and internally conflicting perspective on Divorce.
o The text, for example, declares that a marriage cannot be dissolved by a woman or a man,
in verses 8.101–8.102.
o Yet, in other sections, the text allows either to dissolve the marriage. For example, verses
9.72–9.81 allow the man or the woman to get out of a fraudulent marriage or an abusive
marriage, and remarry;
o the text also provides legal means for a woman to remarry when her husband has been
missing or has abandoned her.
o Manusmriti says that for one year let a husband bear with a wife who hates him, but after
(the lapse of) a year let him deprive her of her property and cease to cohabit with her.
o He further states that on being superseded, if a wife, in anger, go away from the house,
she shall be immediately confined.
o Even in the case of grievous sins, the woman is not to be turned away, since it has been
laid down that ‘she is to be kept imprisoned in one room’.
o The confiscation of her property also is for the purpose of bringing her to her
senses; and it does not mean absolute taking away of all her belongings.
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o She who shows disrespect to a husband- who is addicted to some evil passion, is a
drunkard, or diseased, shall be deserted for three months and be deprived of her
ornaments and furniture.
o But she who shows hatred towards a mad or outcast husband, a eunuch, one destitute of
manly strength, or one afflicted with such diseases, punished for crimes, shall neither be
cast off nor be deprived of her property.
o She who drinks spirituous liquor, is of bad conduct, rebellious, diseased, mischievous, may
at any time be superseded by another wife.
o A barren wife may be superseded in the eighth year, she whose children (all) die in the
tenth, she who bears only daughters in the eleventh, but she who is quarrelsome without
delay.
o There is no mention of instances where a woman can stop cohabiting with her husband.
o However, she can remarry if the husband is an emigrant and has not returned back for the
duration which is stipulated based on the caste.
• Property Rights
o After the death of the father and of the mother, the brothers, being assembled, may divide
among themselves in equal shares the paternal and the maternal estate; for, they have no
power over it while the parents live.
o (Or) the eldest alone may take the whole paternal estate, the others shall live under him
just as they lived under their father.
o As a father supports his sons, so let the eldest support his younger brothers, and let them
also in accordance with the law behave towards their eldest brother as sons behave towards
their father.
o The eldest son makes the family prosperous or, on the contrary, brings it to ruin; the eldest
is considered among men most worthy of honour.
o If the eldest brother behaves as the eldest brother, he must be treated like a mother and
like a father; but if he behaves in a manner unworthy of the eldest brother, he should yet
be honoured like a kinsman.
o Either let them thus live together, or apart, if each desire to gain spiritual merit; for by
their living separate their merit increases, hence separation is meritorious.
o Manu smriti recognizes property rights of adopted child.
o Under 9.185, it is said— ‘Sons, and not brothers or fathers, are the inheritors of the father’s
property’—where all sons are declared to be entitled to inheritance. So long as the
‘legitimate’ son is alive, the ‘Kṣetraja’ and other sons are entitled to maintenance only:
o In comparison to other authors
▪ Gautama (28.1). — ‘After the father’s death, the sons shall divide his estate.’
▪ Baudhāyana (2.3.3, 8).—‘A father may divide his property among his sons; —
while the father lives, the division of the estate can take place only with his
permission.
▪ ’Viṣṇu (18.36).—‘Sons who are of the same caste as the father shall receive equal
shares.’
▪ Āpastamba (2.13.1-3).—‘Sons begotten in the right manner on a wife of the same
caste as oneself have a right to inherit the estate; —if they do not sin against either
of the parents.
▪ ’Yājñavalkya (2.117). — ‘After the parents, the sons shall divide equally their
property as well as their debts; the mother’s property, what remains after the
paying off of the debts, her daughters shall divide among themselves; and in the
absence of the daughters, the offspring of their daughters.’
▪ Kātyāyana (Aparārka, p. 12).—‘Partition is ordained only among those sons who
have attained their majority; —for males, majority is attained in the sixteenth year.’
▪ Arthaśāstra (p. 31). — ‘During the life-time of the parents, the sons have no right
over the ancestral property; after the death of the parents, there is partition of the
ancestral property, and also of the self-acquired property of the father... There
shall be an equal division of the property and of the debt.
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▪ Nārada (13.49-50). — ‘After their father’s death, the sons shall succeed to his
wealth in order; whenever a superior son is wanting, the one next to him shall
succeed. On failure of a son, the daughter succeeds; because she continues the
lineage just like the son.’
• Stridhana
o Manu says that when their mother dies, all the uterine brothers and sisters should divide
the maternal estate equally among themselves. If those sisters have any daughters, one
should joyfully give them also, as is proper, something from their maternal grandmother's
property.
o (1) What is given before the fire, (2) what is given at the time of departure, (3) what is
given in token of love, and what is received from (4) the brother, (5) the mother and (6)
the father, —has been declared to be ‘Strīdhana’ (the exclusive property of the woman).
o Also, the gift that is subsequently made to her by her loving husband, shall go to her
offspring, if she dies while her husband is living.
o Thus, we can say that the tradition presents six types of women's property:
▪ What a woman receives at the marriage,
▪ What she receives when she is taken away,
▪ What she is given as a token of love,
▪ What she receives from her brothers, mother, and father.
▪ What she receives subsequent to the marriage and
▪ What her husband gives her out of affection— upon her death that property goes
to her children even if her husband is alive.
o It is ordained that the property of women married by the ‘Brāhma,’ the ‘Daiva,’ the ‘Ārṣa,’
the ‘Gāndharva,’ or the ‘Prājāpatya’ form, shall go to her husband alone, if she dies
childless. — (196)
o But the property given to a woman on the ‘Āsura’ or other (inferior) forms of marriage,
has been held to belong to her parents, upon her dying childless. (See 3.20-34).
o Women must never alienate the common property of the family or even their own private
property without the consent of their husbands.
o The ornament worn by the woman during her husband’s life-time, her heirs shall not
divide; if they divide it, they become outcasts.
• Gender Rights
o Day and night women must be kept in dependence by the males (of) their (families), and,
if they attach themselves to sensual enjoyments, they must be kept under one's control.
o In childhood she should remain under the control of her father, in youth under that of her
husband, and on the husband’s death under that of her sons; the woman should never
have recourse to independence.
o She should not seek separation from her father, husband or sons: by separating, the
woman would render both families disreputable.
o Women must particularly be guarded against evil inclinations, however trifling they may
appear; for, if they are not guarded, they will bring sorrow to two families.
o She should be always cheerful and alert in household-work; she should have the utensils
well-cleaned and in spending she should be close-fisted.
o Him to whom her father may give her, —or her brother with the father’s permission, —
she shall attend upon as long as he lives, and shall not disregard him when he is dead.
o Be he ill-mannered or of licentious habits or destitute of good qualities, —the husband
should always be attended upon like a god by the true wives.
o There is no separate sacrificing for women, no observances, no fasting's; it is by means of
serving her husband that she becomes exalted in heaven.
o Well might she reduce her body by means of pure flowers, roots and fruits; but she should
not even mention the name of another man, after her husband is dead.
o Considering that the highest duty of all castes, even weak husbands (must) strive to guard
their wives.
o He who carefully guards his wife, preserves the purity of his offspring, righteous conduct,
his family, himself, and his means of acquiring merit.
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o The husband, after conception by his wife, becomes an embryo and is born again of her.
o Let the husband employ his wife in the collection and expenditure of his wealth, in keeping
everything clean, in the fulfilment of religious duties, in the preparation of his food, and
in looking after the household utensils.
o If the husband went abroad for some sacred duty, she must wait for him eight years, if he
went to acquire learning or fame six years, if he went for pleasure three years.
o But a sick wife who is kind to her husband and virtuous in her conduct, may be superseded
only with her own consent and must never be disgraced.
o If twice-born men wed women of their own and of other lower castes, the seniority,
honour, and habitation of those wives must be settled according to the order of the castes
/varna.
o Among all twice-born men the wife of equal caste alone, not a wife of a different caste by
any means, shall personally attend her husband and assist him in his daily sacred rites.
o But he who foolishly causes that duty to be performed by another, while his wife of equal
caste is alive, is declared by the ancients to be as disgraceful as a Kandala.
• Rajdharma (Role of the King)
o An ideal king, has to be truthful to the social order and should observe justice and dharma
by making sure that the social and economic restrictions placed by the varna order are not
broken.
o ‘The King has been created to be the protector of the castes and orders, who, all according
to their rank, discharge their several duties.’ A just King has to ensure that the castes do
not break ranks – do not intermarry and do not take up occupations which are not
prescribed for them.
o In addition, in dispensing of justice the King ought to ‘with rigour punish his enemies,
behave without duplicity towards his friends, and be lenient towards the Brahmanas.’
o Punishment is considered as the means to make people obey their duties and ensure social
order. To men who act unlawfully, he shall mete it out appropriately, having carefully
considered the time and place, as also the strength and learning.
o In its explanation, Yajnavalkya said the king shall inflict punishment upon those who
deserve it, after duly taking into consideration, the crime, the place and the time, as also
the strength, age, act and wealth of the culprit. When Punishment is inflicted without due
consideration of time, place etc., there is destruction of the whole kingdom along with the
King and together with all animals and immovable things.
o Punishment governs all creatures; Punishment alone protects them; Punishment lies awake
while all are asleep; the wise regard Punishment as Law itself.
o In order to carry out the everyday administration of the state, the Manusmriti offers a great
deal of detailed practical advice to the King regarding appointment of ministers for looking
after the foreign relations, conduct of war, system of spies and other juridical and civil
functions.
o Manu advices that the King should employ seven or eight ministers from families who
have served him well, who belong to noble (upper castes) families, who are trained in the
use of weapons and whose worth has been proven.
o The king should daily consult with them on matters of war, peace, administration of towns
and kingdom, treasury and revenue, defence and tributes. The most important issues
should be discussed with the most trusted and distinguished Brahmin among his ministers.
o The Laws of Manu advise the King to have skillful and knowledgeable ambassadors for
conduct of diplomacy.
o Defence should be the uppermost concern of a kshatriya king and by employing the four
expedients -the principle of saam (conciliation), dam (bribery), bhed (dissension), dand
(force) is to be employed. Force is to be used only when other three strategies have failed.
o A king should only wage war when he is assured of his superiority and his enemies’
weakness and all other forms of diplomacy have been exhausted.
o The king should see to it that minors, women, widows, and men of all castes are not
robbed of their property.
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o Interpretation of the law should only be done by a Brahmin and never by a Shudra. For
‘The kingdom of that monarch, who looks on while a Shudra settles the law, will soon
sink.
o The punishments should follow the caste order, with the leniency being reserved for the
Brahmin and severity for the three lower varnas.
o Similarly, Brahmin is exempt from corporeal torture and capital punishment.
• System of Administration
o The Manusmriti envisages a system of administration which extends from village to the
king.
o The seventh chapter supplies a systematic contemporary account of the social and
religious institutions of ancient India.
o Each community were little republic, and manages its own affairs, so far as it is allowed,
having municipal institutions perfectly effectual for the purposes of self-government and
protection.
o Its relations with the central Government are conducted by a headman, and its internal
administration by a staff of hereditary officers, consisting of an accountant, watchman,
money-changer, smith, potter, carpenter, barber, shoemaker, astrologer, and other
functionaries, including, in some villages, a dancing girl, and a poet or genealogist.
o Each village is a unit of local administration with a lord, who shall report to the lord of
ten villages, who in turn shall report to the overseer of twenty villages.
o The lord of the village shall see to it that the expected amount of – food, drink and fuel –
is being supplied from the village under his command to the King.
o A minister of village affairs will oversee the functioning of all these lords.
o Similarly, a superintendent is to be appointed in each town who shall look after the work
of officials in each department of town administration.
o In the centre of two, three, five or hundred villages he shall appoint an administrator of
state supplied with a picket of guards.
o Troubles arising in the village, the Village-lord shall himself gently report to the Lord of
Ten villages; and the Lord of Ten villages to the Lord of Twenty, the Lord of Twenty shall
communicate it all to the Lord of Hundred, and the Lord of Hundred himself shall report
it to the Lord of Thousand; and finally, to the king.
o Those evil-minded (corrupt) persons (officials) who would take money from men engaged
in business shall confiscate the whole property and ordain banishment.
JUDICIAL SYSTEM IN ANCIENT INDIA
Administration of Justice
• In Ancient India King was considered the lord of Dharma and the head of justice.
• King's court was the highest court of appeal.
• The court also had original jurisdiction in matters of vital importance. (Dhana Mitra’s Case)
• Kings were advised by learned brahmins, ministers, elders and representatives of the trading
community.
• Next to king's court there was Court of Chief Justice (Pradvivaka).
• According to the Nāṭyaśāstra chapter 34. Accordingly, “Those who know well about litigation, and
the true nature of pecuniary transactions, are intelligent, and well-versed in many departments of
knowledge, impartial, followers of Dharma, wise, able to discriminate between good and bad deeds,
and are forbearing and self-controlled, and can control anger, are not haughty and have similar
respect for all, should be placed in seats of justice as judges (prāḍvivāka)”.
• Chief Justice court consisted of one Chief Justice and a board of Justice.
• All judges were from the three upper castes preferably Brahmins.
• The judges were expected to be with high moral qualities and great sense of right and wrong.
Kautilya prescribes fines and even corporal punishment for corrupt judges. Yajnavalkya, Narada
and Katyayana prescribe heavy penalties for sabhyas (associate judges) who were corrupt.
 MODULE 1: LEGAL SYSTEM IN ANCIENT INDIA

• In the village level, the local village councils or kulani with a board of 5 or more members dealt
with the cases.
• Village councils dealt with simple civil and criminal cases involving subject matters like irrigation,
cultivable land, small crimes etc.
• Some of the judges constituted separate tribunals having specified territorial jurisdiction.
• One of the fundamental rules of this era was that the administration of justice is not done by a
single judge but by a board of judges or two or more judges.
• Brihaspati (I.57-58) maintains that courts of justice were of four kinds :
o a)Pratishthita, established in a fixed place such as a town.
o b)Apratishthita, not established in a fixed place but moving from place to place.
o c)Mudrita, the court of a judge who is authorised to use the royal seal, and
o d)Sasita/Sasrita, the court in which the king himself presides.
• Elaborate judicial procedures are given by the Smriti writers. According to Yajnavalkya (II.8) and
Brihaspati (I.17) Vyavahara/suit/trial consisted of four parts;
o Purva-paksha: Filing of the complaint (Plaint)
o Uttar-paksha: Filing of the reply (Written Statement by defendant)
o Kriyaa: Trial and Investigation of the dispute by the court.
o Nirnaya: Decision of the Court (Verdict/Judgement)
• Commencement of Judicial Producure
o According to the general smriti rule, he who first approaches the court with his plaint is
the plaintiff.
o A plaint may be amended at any time before the answer of the defendant has been filed.
o Narada gives the plaintiff the right of keeping the defendant under legal restraint which
includes such processes as arrest before judgment or temporary injunction till the arrival
of the king’s summons so that the defendant cannot abscond.
o Both the parties are given full opportunity to prove their cases by producing evidence.
o According to Brihaspati, ‘A judgment should not be passed in reliance upon the text of
the sastras alone, for a trial of a case without taking account of the circumstances of a case
leads to a loss of Dharma.’
o Evidences were documents or witnesses.
o In Civil cases the court considered the qualification of the witnesses whereas in Criminal
cases the circumstantial evidence was sufficient to punish the offender.
JUDICIAL SYSTEM IN CURRENT TIMES
• Supreme Court at the apex
• High Courts and Tribunals below SC
• Sub Ordinate Courts and tribunals below HC
Constitution of Courts
• King was regarded as the fountainhead of Justice. The King’s court was the highest court as well
as the original court in cases of vital importance to the state.
• In King’s court, King was advised by learned Brahmins, the Chief Justice, other judges, ministers,
elders and the representatives of the trading community.
• Next to king was the court of Chief Justice (Pradvivaka). Apart from the Chief Justice, the court
consisted of other judges to assist him. All Judges were from upper castes, preferably Brahmins.
Sometimes, some of these judges constituted tribunals having specified territorial jurisdiction.Four
kinds of tribunals were –Stationary, Movable, movable and under king’s signet and commissions
under the king’s presidency.
• In villages, the local village councils or Kulani, similar to modern Panchayatsconsisted of a board
of five or more members to dispense justice in matters relating to endowments, irrigation,
cultivableland, punishment of crime. Village council dealt with simple civil and criminal
cases. Trade Guilds were authorised to exercise an effective jurisdiction on the members of
various guilds or associations of traders and artisans (Sreni). Appeals were possible from guilds to
 MODULE 1: LEGAL SYSTEM IN ANCIENT INDIA

local court.PagaAssemblies made of groups of families in same village decided civil disputes among
family members.
• Criminal cases were ordinarily presented before Central court or court held under royal authority.
Judicial Procedure
Judicial Procedure was very elaborate. According to Brihaspati, a suit or trial (Vyavahara)consisted of four
parts:
• the Plaint (Poorvapaksha)
• the Reply (Uttar)
• the Trial (Kriyaa)
• the Verdict (Nirnayaa)
Filing of the plaint before the court meant that plaintiff submitted himself to the jurisdiction of the court.
Court was then entitled to issue an order to the defendant to submit his reply. If the defendant submitted
then the court passed its decision. In case thedefendant contested, equal opportunity was provided to both
parties to prove their cases. Witness was based on any or all three sources namely; documents, witnesses
and possession of incriminating objects.
The qualifications of judges and other officers of courts were prescribed. A code of conduct for judges and
punishment for officers committing crime were laid down.
In civil cases, the status and qualification of witness was enquired in the court. In criminal cases,
circumstantial evidence was sometimes sufficient to punish or acquit a person. False witnesses were fined
severely by the court.
Appointment of Judges and Judicial Standards
• Caste Considerations played an important role. Brahmins were preferably appointed as a chief
judge or a judge. In order of preferences Kshatriyascame next followed by Vaisyas. In no case
could a Sudrabe appointed as a judge.
• Persons highly qualified and learned in law were to be appointed as judges. People ignorant of the
customs of the country, non-believers of caste system and God, despisers of sacred books, insane,
irate and distressed could not be appointed judges.
• Judges were required to take the oath of impartiality. Integrity was the first qualification.
Judges were required to make decisions according to the texts. Dishonesty in a judge
was the most reprehensible crime while a judge who performed his duty in the right spirit achieved
the same merit as a person performing a Yajna.
Trial by Jury
Trial by Jury existed but not in the same form as we understand it now. The members of the community
assisted in the administration of justice.
Trial by Ordeal
It was a method to determine the guilt of a person. The ancient Indian society largely dominated by religion
considered the trial by ordeal was a valid method of proof. It was only used in cases of very serious offences
or high treason.
The most common ordeals:
• Ordeal of Balance
• Ordeal of Poison
• Ordeal of Fire
• Ordeal of Water
• Ordeal of Lot
• Ordeal of Rice Grains
 MODULE 1: LEGAL SYSTEM IN ANCIENT INDIA

• Ordeal of Fountain-Cheese
Crimes and Punishments
• Manu Svāyambhuva has named ten places for punishment, where it should be inflicted in the case
of the three castes; but the Brāhmaṇa shall depart unscathed. (1) The genital organ, (2) the stomach,
(3) the tongue, (4) the hands, (5) the feet, (6) the eye, (7) the nose, (8) the ears, (9) the property and
(10) the body.
• Bṛhaspati (27.9-10).—‘Both hands, both feet, the male organ, the eye, the tongue, the ears, the
nose, the neck, the half of the foot, the thumb and the index finger, the forehead, the lips, the hind
part and the hips;—these fourteen spots of punishment have been indicated. For a Brāhmaṇa,
branding on the forehead is the only kind of punishment. A Brāhmaṇa, though a mortal sinner,
shall not suffer capital punishment; the King shall banish him and cause him to be branded and
shaved.’
• For killing, capital punishment.
• 1. For Breach of Contract: Person is banished from the place
• 2. Rescission of Sale: If, after having bought or sold anything, one should repent of it, he may
return or take back that thing within ten days. But after ten days, he shall neither return nor take it
back; he who takes it back, as well as he who returns it, should be fined by the king six hundred. If
a man gives a defective damsel, without mentioning the defects, he should be punished by the king
himself with a fine of ninety-six ‘paṇas.
• 3.Verbal Assault (Verse 8.267-Abuse and Defamation): On abusing a Brāhmaṇa the Kṣatriya
should be fined one hundred; and the Vaiśya one hundred and fifty; or two hundred; the Śūdra
however deserves immolation.
o For abusing a Kṣatriya, the Brāhmaṇa should be fined fifty; and in the case of a Vaiśya,
the fine shall be twenty-five; and in that of a Shudra, twelve.
o Among twice-born men, when there is offence against an equal, the fine is twelve only in
the case of unutterable abuses, it shall be double.
o If Sudra mentions the name and caste of these men with disrespect, a burning iron nail
ten inches long shall be thrust into his mouth.
o He who, through arrogance, speaks falsely regarding the learning, the habitat, the caste,
the occupation, or the bodily details (of another person), should be made to pay a pine of
two hundred.
o If a man, through malice, speaks of a maiden as ‘not a virgin’ he should receive the
punishment of one hundred, if unable to prove her impurity.
o
• 4.Physical Assault
o With whatever limb the low-born man hurts a superior person, every such limb of his shall
be cut off; this is the teaching of Manu. If he raises his hand or a stick, he should have his
hand cut off; if he strikes in anger with the foot, his foot shall be cut off.
o If a low-born person tries to occupy the same seat with his superior, he should be branded
on the hip and banished; or the king shall have his buttocks cut off.
o If he catches hold of the hair, the king shall unhesitatingly have his hands out off; also, if
he lays hold of the feet, the beard, the neck, or the scrotum and so on.
o When a hurt has been inflicted on men or animals, with the motive of causing pain, the
king shall inflict punishment in proportion to the greatness of the pain caused.
o In the case of hurting petty animals, the fine is two h undred; and fifty in the case of the
auspicious quadrupeds and birds. In the case of donkeys, goat and sheep the fine shall
consist of five ‘māṣas’; and the fine shall be one ‘māṣa’ for the killing of a dog ok a pig.
• 5. Theft
o The King shall, make the best efforts for suppressing thieves; by the suppression of thieves
comes fame and the kingdom prospers. The King who imparts security is ever to be
honoured; his sacrificial session constantly prospers, accompanied as it is by the gift of
‘security.
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o The king, who, without affording protection, takes tributes, taxes, duties, presents and
fines, would immediately sink into hell.
o The thief becomes absolved from the theft, either through punishment or through
acquittal. By not punishing the thief, the king imbibes the guilt of the thief. Men who,
having committed crimes, have been punished by Kings, become freed from guilt and go
to heaven, just like well-behaved good men.
o When one steals the rope or the water-pot from the well, or damages a water-drinking
establishment, he should be punished with a fine of one ‘māṣa,’ and should restore the
article to the place.
o There shall be ‘immolation’ for one who steals more than ten jars of grain; in other cases,
he should he made to pay eleven times as much, as also make good the property to the
owner.
o For stealing noble men, and specially women, and the precious gems, the thief deserves
‘immolation.’ For the stealing of large animals, of weapons or medicines, the king shall
determine the punishment, after considering the time and the purpose.
o For stealing cows belonging to a Brāhmaṇa, and for piercing them with the goad, and for
stealing animals, the thief should be immediately made half-footed
o In the case of the theft of yarns, cotton, fermenting drug, cowdung, molasses, curds,
milk, skimmed curd, water and grass, —of vessels made of bamboo or cane, as also of
salts, earthenware, earth and ashes—of fish, birds, oil, clarified butter, meat, honey, and
other animal-products —of other things of this kind, spirituous liquors, cooked rice and
all kinds of cooked food, —the fine shall be double the value of the thing stolen.
o For husked grains, for vegetables, roots and fruits, there shall be a fine of a hundred, in a
case where there has been no propitiation; and fifty, where there has been propitiation.
• 6. Violence
o He who commits violence is to be regarded as the worst offender, as compared to one
who is wicked of speech, to a thief and to one who hurts with a staff.
o The king who condones the perpetrator of violence quickly falls into destruction and
incurs hatred.
o Neither for the sake of friendship, nor for the sake of a large gain of money, should the
king let off the perpetrators of violence,
• 7. Adultery
o hose men who are addicted to intercourse with the wives of other men, the king shall
banish after having branded them with terror-inspiring punishments.
o A man who engages in secret conversation with the wife of another person, —if he is one
who has been previously accused of similar offences, —should receive the penalty of the
‘first amercement.’ If, however, he is one who has not been previously accused, and
converses with her for some good reason, he does not incur any guilt; as in his case there
has been no transgression.
o He who converses with ‘another’s woman’ at a watering place, or in a wilderness, or in a
forest, or at the confluence of rivers,—incurs the guilt of ‘adultery.’Offering help, flirting,
touching of ornaments and clothes, sitting on the same bed, —all this has been declared
to be ‘adultery.
o ’If one touches a woman in an improper place, or condones it when touched by her, —all
this, when done with mutual consent, has been declared to be ‘adultery’
o In a case of adultery, a non-Brāhmaṇa deserves the penalty ending in death; as the wives
of all the four castes are always the most deserving of protection.
o If a man of equal status violates an unwilling maiden, he deserves immediate death; but if
he violates a willing one, he shall not suffer death.
o If a maiden approaches a superior person, she shall not be made to pay anything; if,
however she courts an inferior person, she shall be kept confined in the house.
o An inferior man courting a superior maiden deserves death; he who courts a maiden of
equal status, shall pay the nuptial fee, if her father so wishes.
o But if a woman pollutes a maiden, she deserves immediate shaving off, or the amputation
of two fingers, and also being carried by a donkey.
 MODULE 1: LEGAL SYSTEM IN ANCIENT INDIA

o If a woman, proud of relations and her qualities, passes over her husband, the king shall
have her devoured by dogs in a place frequented by many.
o If the convicted man is accused again within a year, he shall be punished with a double
fine. the same also in the case of intercourse with a ‘vrātyā’ or a ‘chāṇḍālī.’
o A śūdra having intercourse with a twice-born woman, protected or unprotected, shall be
deprived of his limb and his whole property, in the case of the unprotected woman, and
of everything in that of the protected.
o If the Vaiśya and the Kṣatriya have intercourse with an unprotected Brāhmaṇa woman,
the Vaiśya should be committed with five hundred and the Kṣatriya with one thousand.
o Verily he shall not kill the Brāhmaṇa, even though he be steeped in all crimes; he should
banish him from the kingdom, with all his property and unhurt.
o If a Vaiśya approaches a protected Kṣatriya woman, or the Kṣatriya a Vaiśya woman, —
both these deserve the same punishment as that in the case of an unprotected Brāhmaṇa
woman.
o The Brāhmaṇa having intercourse with the said two, when protected, should be made to
pay a fine of one thousand; the fine for the Kṣatriya and the Vaiśya approaching a Śūdra
woman, should be one thousand.
o In the case of the Vaiśya approaching an unprotected Kṣatriya woman, the fine shall be
five hundred; but the Kṣatriya may suffer tonsure or the fine.
o The Brāhmaṇa, approaching an unprotected Vaiśya or Kṣatriya woman, should be fined
five hundred, and one thousand for approaching a woman of the lowest order.