The judicial system deals with the administration of the laws through the agency of the law givers or the courts. The system provides the machinery for the resolving of the disputes on account of which the aggrieved. Nothing rankles in human heart more than a brooding sense of injustice. No society can allow a situation to grow where the impression prevails of there being no redress for grievances.
India has a recorded legal history starting from the Vedic ages (ca.1750–500 BCE) and some sort of civil law system may have been in place during the Bronze Age in India that is around 3000 BCE and the Indus Valley civilization, which is the period between 2600 BCE and 1900 BCE.
Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.
There are 5 categories under which legal history of India can be studied:
- Vedic age
- Hindu period
- Muslim period
- British period
- History of independent India
Further, according to period of time, the entire history of India can be put under 3 heads:
- Ancient India(2500 BC – 1206 AD)
- Indus Valley Civilization (2500 BC – 1500 BC)
- Vedic Age (1500 BC – 600 BC)
- Hindu Period (600 BC- 1206 AD)
The following article shall analyse the Ancient Indian Judicial structure and the administration of Justice at that time
Concept of Dharma
In India, we have several sects, and each sect defines the concept of Dharma according to their own parameters. In Hindus, the concept of Dharma has been taken from 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.
Buddhists refer to Dharma as ‘Dhamma’, based on the preaching and sayings of Lord Buddha
Jains refer to Dharma on the basis of the teachings of their Tirthankaras
In Islam, there are two important concepts dealing with Dharma:
- Concept of universal brotherhood which dictates that all Muslims are brothers.
- Dogma of Touhid which says that the Lord is one and only one and Prophet Muhammad was His messenger.
The marriages which are been carried out under Special Marriage Act (inter-religion marriages), succession issues are dealt with under Indian Succession Act
During Vedic Age, legal literature developed in the form of free text to regulate the society:
- Dharamshastras (Smriti)
Literal meaning of Sutra is ‘thread’. Sutras connected many things, just like threads. They did so by highlighting various aspects of human life:
- Grihasutras (domestic affairs)
Out of these 3, the Dharamsutras are regarded as the beginning phase of the development of civil and criminal wrongs. They are the oldest sources of Hindu Law.
The Dharamsutras later came to be known as Dharamshastras.
On the basis of Dharamshastras, certain commentaries have been written by authors based on their memory of these religious texts. Since they are based on memory, they are called Smritis. There are 5 Smritis which are considered source of law in India:
Authentic source of Hindu law. Oldest Smriti of India. It devotes three chapters to discuss the role of legal developments and key features covered are:
- King and his subjects:
- Judiciary and the role of judges
- Sources of law
- Principles of Diplomacy
Constitution of courts. The main concern of this Smriti was to make the justice evident. We have provisional and administrative law that justice should not only be done, it should be seen that it is implemented.
Witness system: Brihaspatismriti talks about number of witnesses. Minimum number of witnesses as mentioned in this Smriti is 3. However, 2 witnesses are also acceptable if they fulfill the requirement of being learned Brahmins. Single witness is not acceptable under any circumstance.
Presently, in the Indian Evidence Act, 1872, we don’t have any such prescribed minimum number for witnesses.
Section 134, Indian Evidence Act, 1872: No particular number of witnesses shall be required at any place for the proof of any type.
3. Yagyavalakya Smriti:
This Smriti is largely based upon the concept of Manusmriti. This also talked about constitution of courts and described judicial procedures in a very systematic manner. With regard to witness system he observed that there must be three-fold evidence to prove any case:
- Documentary evidence
- Direct witness
- Possession (civil cases)
In relation to documents, Yagyavalakya gave certain criteria that documents must be precise, detailed and must be signed by at least 2 witnesses.Presently, we have the concept of documents under Section 3 of the Indian Evidence Act. Regarding signatures, we have process of attestation.
Regarding witnesses, this Smriti was strict. The witness must be rich/ speaker of truth/ etc. Presently, we don’t have any requisite qualifications regarding witnesses.
Regarding possession,Yagyavalakya gave the theory, “Title prevails over the possession unless the latter is hereditary.” Here the term ‘title’ refers to ownership. Ownership prevails over possession until possession is hereditary.
Presently, we have the concept of adverse possession. Section 65, Limitation Act, 1963, makes it clear that to avail the adverse possession of private property, it needs to be owned peacefully for 12 years and 30 years in case of government property. Also, there are certain exceptions under Specific Relief Act:
The procedure is about declaratory suit. Regarding this proposition, there is an important concept in law, i.e., possession is 9/10thof ownership.
Yagyavalakya also gave the rule of mortgages and also discussed about stridhana (women’s property)
Presently, these concepts exist under Transfer of Property Act and Personal Law.
4. Narada Smriti:
First legal commentary which is not based on religious and moral principles. The judicial procedure advocated by him is also a very complex one. In terms of witness, this was very close to Brihaspatismriti. This also mentions about 11 types of witnesses.
5. Katyayana Smriti:
Dealt with detailed provisions regarding constitution of courts, elaborate procedures for administration of justice. According to him, every remedy must be sanctioned by the state.
Stages of administration of justice in ancient India:
1. Courts and constitution of courts
King was the fountainhead of justice. His court was the highest court, having both original and appellate jurisdictions
For assisting him the king, there was also Court of Chief Justice and his court consisted of board of judges.
In villages, there were Village Councils similar to modern times’ Panchayats. They consisted of 5 villagers as members to dispense justice among them. These councils used to deal with small civil & criminal cases. There was a cardinal principle regarding administration of justice in ancient times that a single judge was not allowed to give judgment in any case. Presently whatever concept of benches we have in the Supreme Court is based on this ancient legal principle.
2. Judicial Procedure – In ancient times, judicial procedure was very elaborate, much like today.
According to Brihaspati, suit on trial consisted of 4 stages
- Filing of plaint
- Reply to the plaint
- Trial & investigation
- Verdict and decision
Again in relation to evidence, it was based on all or any of the three sources, i.e. documents, witnesses or possession.
Further, during the course of trial, each party to the case was required to prove one’s content with the support of certain evidence.
3. Institution of lawyers – We don’t have direct reference from any ancient text that whether any institution of lawyers was present or not.
PV Kain in his book, ‘History of Dharamshastras’, mentioned that the judicial procedure highlighted in various Smritis refer to high level of technicalities therefore a body of legal experts to understand them.
From this we can infer that institution of lawyers might have existed.
4. Appointment of judges and judicial standards – Caste system played a very important role in the appointment of judges.
Mostly, judges were appointed amongst Brahmins. However, the standard for judges and magistrates were very high.
Judges were required to take oath of impartiality whenever deciding any dispute between the citizens. They were also expected to follow utmost integrity in the course of their dealings.
Article 124 (6): Oaths of SC
Article: Oaths of HC
5. Trial by jury – It was very much prevalent in ancient India and continued in the modern times even after the framing of the Indian Constitution and abolished after the famous case of KM Nanavati vs. State of Maharashtra. In this case judges of District Court if Greater Bombay sat a jury to decide the case.
6. Trial by ordeal – Ordeal was the method of determining the guilt or innocence of the person. Under this system the person accused of any crime was subjected to certain tests with the belief that the process is under supernatural control. Examples:
- Ordeal of Balance
- Ordeal by fire
- Ordeal by water
- Ordeal by poison
- Ordeal by lottery
- Ordeal by rice grain
- Ordeal by fountain cheese
7. Punishment – Punishment was sort of expiation which removed impurities from a man of sinful promptness and reformed his character. According to Manu, Brihaspati and Yagyavalakya, there were 4 modes of punishment:
- Gentle admonition
- Severe reprove
- Corporeal punishment
In modern times we have different theories of punishment based on ancient texts :-
- Deterrent theory
The Constitution of India has sought to create a more equal and just rule of law between individuals and groups than what existed under traditional authorities in ancient India. The Indian Constitution strives to eliminate the humiliation that people suffered under the traditional social system of caste and patriarchy, thus creating new ground for realization of human dignity.
The realization of both formal and substantive equality that is happening under the rule of law in contemporary Indian society can facilitate a more creative flourishing of a life of dharma or righteous conduct in self and society (Giri 2002).
However, in spite of the provisions in the constitution for equality in justice, we can find that ancient Indian manuscripts reminiscences in the village justice system playing a major role in the dispensation of justice.
Holden (2003) in her research on some villages in India, have found out that most of the village justice system is based on caste and found out that many of the principles grounding the traditional panchayat’s decisions have an evident source in the ancient Hindu tradition.