| I
have great pleasure in welcoming you to this one day seminar on the
subject "Law and Justice in Ancient India" held under the auspices
of the Institute for 0riental Study, Thane.
We have been conducting seminars on different facets of Indian culture,
during the last 14 year i.e. since 1982, and today's will be the
20th Seminar in this uninterrupted Series of Seminars. I also would
mention here that all these seminars including today's,have been
presided over by Pandit Shri. S.B. Velankar. His eneouragement and
guidance have been always with us, not only for organising seminars
but also for other activities of theInstitute,and we are extremely
thankful to him for his blessings and assistance during all these
years.
Today, for this Seminar, many of you have come from different parts
of the country. There will be about fifteen presentations and I
am sure that we will be richer in knowledge by the end of the day.
We are going to deliberate on a very important subject - Law and
Justice in Ancient India. With the background of events happening
today in the country, specially related to the institution of Judiciary,
criminalisation of Politics, glorification of vulgarity and crime
in visual and print media, unabated terrorism, corruption and helplessness
of common man to seek justice at every stage,the subject becomes
of paramount importance. An honest and conscious citizen is disgusted
and frustrated to see lawlessness rewarded and law abiders punished
and harassed.We have been independent for the last fifty years,
and we are Governed by the constitution framed by ourselves. Ours
is the longest constitution in the world. Constitution on paper
and one in action may differ radically. Its effectiveness depends
a lot on who operates it and for whom it is made. Law is too precious
to be left to the police or to the lawyers. Why are we failing today
? Why is our system of delivering justice losing its credibility
today ? These questions need a tnrough investigation and honest
analysis. The subject of Today's Seminar may give us some clues
lessons and guidelines to protect our future from such failures.
We have papers which are going to deal with this subject from a
vast literature from Vedas to Dharmashastras. I am going
to restrict my observations to a period when indigenous native practices
and convictions, guiding principles and Wisdom which form the foundation
of law and justice 'concept' in this country were supplanted and
codified to develop a judicial institution to serve the needs and
responsibilities of the expanding Raj. Both systems differ radically
in their outlooks towards life. They differ culturally and philosophically.
Indian
Constitution is palably foreign in origin and inspiration. As Mark
Galanter has stated -
It
is notoriously incongruent with the attitude and concerns of much
of the population which lives under it.
He states
further-
The modern Indian legal system, then, presents an instance of the
apparent displacement of a major intellectual and institutional
complex within a highly developed civilization by one largely of
foreign inspiration. [1]
Father of the Indian Constitution, Dr. B.R. Ambedkar and his Mentor
Jawaharlal Nehru, both products of Western Educational system were
strong advocates of westernising most of the Indian social and legal
institutions.However, Gandhi felt that the British had committed
'egregious blunders, While interpreting native law. Even Gandhiji's
central position in Indian Politics could not prevent native Hindu
Law getting supplanted and converted to Anglo-Hindu Law with "Black
Latter Law" tradition at its core.
Within
this tradition law is separated from morality. After independence,
the same tradition Was superimposed by constitution. The Dharmashastra
component was completely obliterated. This change was not due to
errors of understanding but was attempted delibarately. Warren Hestings,
the then Governor at Calcutta believed that Indians should not be
administered by British Laws which they did not know, but should
be administered by local Muslim and Hindu Laws which they understood
and had held them in high esteem for centuries. Probably he was
the first and the last to hold this view other than Gandhiji. Sir
William Jones, the father of indology, was a Judge in Supreme Court
in Calcutta in 1783. Since 1772 Pandits were attached to the Anglo-Indian
Courts and they continued to act as legal counsellors until 1864
when their office was abolished. The British judges never liked
their dependency on Pandits and did not trust them.
It is interesting to note here that Jones desire to learn Sanskrit
was linked to his distrust of Court Pandits. In a letter dt. 28th
Sept. 1785 written from Krishnagar, a town in Bengal to Charles
Chapman, Jones writes-
I am
proceeding slowly, but surely, in this retired place, in the study
of Sanskrit, for I can no longer bear to be at the mercy of
our pandits, who dole out Hindu Law as they please, and make it
at reasonable rates When they cannot find it readymade. [2]
This inspired Jones to learn Sanskrit and translate Manusmruti
into English. Manusmruti was published by him in Calcutta in
1794. Manusmruti is also one of the early Sanskrit works to
be translated into any European Language. Within two years i.e. in
1796 it was reprinted in England and in 1797 it was translated into
German.
Jones' translation of Manusmruti was published by the order
of the Government and was intended primarily ta serve the administration
of justice. According to Jones -
It
must be remembered, that those laws are actually revered, as a word
of the Most High, by nations of great importance to the political
and commercial interests of Europe, and particularly by millions
of Hindu subjects, whose well-directed industry would add largely
to the wealth of Britain, and who ask no more in return than protection
of their persons and places of abode, justice in their temporal
concerns, indulgence to the prejudices of their old religion, and
the benefit of those laws, which they have been taught to believe,
sacred and which alone they can possibly comprehend. [3]
Jones has very clearly expressed his intentions.
T.B. Macaulay known for his ignorance and disrespect for ancient
Indian education and culture was a member of the Indian Law Commission
of 1833. He opined that-
Neither as the languages of Law nor as the language of religion
have the Sanskrit and Arabic any peculiar claim to our encouragement.
In a correspondence with Lord William Bentick, then Governor General
of India, Macaulay writes -
The
Shastras and the Hadith will become useless' and further he states
- 'I would strike at the root of the bad system which has hitherto
been fostered by us. I would at once stop the printing of Arabic
and Sanskrit books. [4]
Sir
Henry Main a prominent and celebrated sociologist of the century
also exercised a profound influence on Indian mind. He believed
the wisdom in Dharmashastra to be 'dotages of Brahminical
superstition'. This opinion formed the foundation of future law
reforms and scholarship in India.
J.H. Nelson a British Administrator at Madras in the l9th century
also questioned the reliability of Manusmruti as a source
of law. Govind Das, an Indian Sanskrit Scholar, also believed that
it was a profound error to regard the smritis as complete codes
of law. He further states -
After all this, can one seriously contend that Hindu Law was in
the main ever more than a pious wish of its metaphysically minded,
ceremonial - ridden priestly promulgators, and but seldom a stern
reality. [5]
Western
educated Indian elite in the 19th and 20th centuries echoed the same
prejudices which were further strengthened by Marxist ideologues.
This laid the foundation of misinformation, distortion and utter hatred
towards ancient Indian. social and legal institutions.
With this mind-set of most of the educated Indians supplanting native
Indian Law and replacing it with modern western principles was comparatively
an easy task.
By 1882 codification of virtually all commercial, criminal and procedural
law was completed. Only Hindu and Muslim personal laws were exempted.
A highly deterministic, mechanistic, definitive structure and framework
of legal system was thus establishad. The damage was severe. The
language, ideas and idioms, all were foreign. Indian cultural, moral,
religious beliefs were not only disrespected but were branded as
being unscientific and uncivilized. All elasticity, accommodativeness
and localness was lost. A new breed of interpreters (lawyers) emerged.
Justice was made complicated and expensive, for the sake of political
unity and standardisation needed by the British to rule this country
with the help of a miniscule doctored bureaucracy. Mark Galanter
points out-
Dharmashastra
tolerated diveristy, preferring unification by example, instruction
and slow absorption rather than by imperative imposition. Change
was piecemeal rather than comprehensive. In contrast, the
new legal system provides machinery (and ideology) legislation
to be enforced throughout the society. Such a system, along with
mass communications, makes possible unprecedented consolidatian
and standardization of Hinduism, as well as of Indian Society generally.
[6]
Consolidation and standardization as remarked by Plark Galanter
is also a product of western imagination since Hindusim is inherently
pluralistic yet it has retained a widespread spiritual unity.
Gandhiji
strongly believed in the Indian tradition, which according to him
was still alive in the villages. He demanded complete replacement
of imposed British law by native law. He wanted decentralisation
of political and economic structure and village as the basic social
unit. Apart from paying lip service to Gandhism, Gandhian principles
were never incorporated in the structure of the Constitution. Dr.
Ambedkar had a diagonally opposite view of villages. In one of
his speeches to the constituent Assembly (4th Nov. 1948) he made
his viewpoint of village very clear.
No doubt the village communities have lasted where nothing else
lasts..... But mere survival has no value . . What is a village
but a sink of localism, a den of ignorance, narrowmindedness and
communalism... ? I am glad that the Draft constitution has diacarded
the village and adopted the individual as its unit.[7]
Gandhi
and the importance he attached to the Indian tradition, culture,
religious and moral values were exceptions to the mainstream of
western educated Indians and bulk of the Congressmen led by Pandit
Nehru. For them Dharmashastra literature and specially Manu
appeared a villain and a disgrace. They were only parroting the
views of their British mentors and masters. Manu became the whipping
boy of socialist and Marxist ideologues. Fortunately not all Western
and Indian scholars were so prejudiced. G. Buhler, Nietzsche, Willian
Jones, Max Muller etc... all held Manusmruti in high esteem.
Nietzeche, while commenting on Manu and Women, states
I know of no book in which so many tender and kind remarks are
addressed to woman as in the law-book of Manu, these old greybeards
and saints have a way of being polite to women which has perhaps
never been surpassed. [8]
This
remerks is in stark contrast to the mischief played by celebrated
sociologists and self styled reformists quoting Manu out of context.
The famous syndrome is well known to all of us.
According to J.D.M. Derrett, dharmashastra literature and
specially Manu's text constitutes India's greatest achievement in
the field of jurisprudence. Even in the field of comparative law
serious researchers both eastern and western have regarded manu's
work as one of the world's premier compositions in ancient law,more
valuable in every sense than Hammurabi and able to hold its own
in comparison to the covenant and priestly codes of Moses.
These scholars also found various contradictions in Manu's statements
but instead of dismissing them as proofs of inconsistency they found
that this was inevitable for avoiding determinism. It was necessary
to accommodate diverse practices prevalent in different sections
of the society. Option was a better policy than elimination. Eminent
scholar Ludo Rocher has aptly pointed out,
The
important but easily overlooked point is that it is normal, that
it is a premise, in Hinduism, that what is Dharma for one
is different from what is Dharma for another. Dharma,
basically, is accepted custom (acara) i.e. custom accepted in
a region, in a village, even in a caste or a sub-caste within
a village. But all these different customs are Dharma in
their own right. With the single and relatively vague proviso
that "they should not be contrary to the Veda", the Dharmasutras
and Dharmasastras themselves unanimously accept the validity
of practices recognised within a region, a caste, or a family,
they provide that customs peculiar to cultivators, traders, herdsmen,
money-lenders, artisans etc., are binding on these various groups.
He further says-
In actual dispute-settlement each of these customs, or sets of
customs, was applied, consistently, in the appropriate circumstance.
Members of one area or one group always divided paternal property
equally, others unequally, others again did not divide it at all.
Among some there was levirate, among others there was not. In
India's largely oral culture these area specific or group-specific
rules were transmitted in the form of Memorial verse in
the vernacular, and they remained unwritten. The composers of
the Dharmashastras, on the other hand, compiled treatises
on Dharma, on anything they considered worthy of being
recorded as Dharma with some people, somewhere. They gathered
that information in books, in the languages of the learned, sanskrit.
[9]
'Black letter law' tradition can never have this flexibility and
accommodativeness. In a living society and culture there cannot
be absolute, final answers. Equality is a good political agenda.
But may not offer equal justice. Abortion is a thorny issue in the
economically advanced western countries today. In spite of scientific
outlook and 'modernity' there is no concensus solution. Modern translators
of Manusmruti, Werdy Doniger and Brian A. Smith, hava discussed
hypothetical response of Manu to this issue.
Despite
the relativity of Dharma its context sensitivity paradoxically
guards Manu from the dangers of true relativism. He is not 'Pro-choice'
like a modern American liberal. He believes that, in any given
circumstance, there is only one thing to do. Though he himself,
in his own period and culture, is, violently opposed to abortion,
if he were a law-giver nowadays, and were to enter our contemporary
debates about abortion, one can imagine the sort of stance he
would take. He would not say, 'Every women can choose whether
or not to have an abortion' (which would be relativistic, at least
to the degree that it acknowledged different ideals for different
individuals), nor would he say, ' No woman can have an abortion'.
(Which would be univocal), nor would he say, ' Every woman can
choose whether or not to have an abortion' and ' No woman can
have an abortion' (which would be contradictory). He would probably
say something like this -
A woman
who already has three children and is over thirty can have an abortion,
and a woman who has no children and is under thirty cannot have
an abortion' (a statement nuanced to the infinite varieties of the
human conditions). The fact that he would not cover the case of
a woman over thirty with no children or that of a women under thirty
with three children would allow ample scope for the commentaries.
[10]
Manu,
and for that matter other Smritikars, had strong views and opinions,
but they were not dogmatic, authoritarian or deterministic. None
of them were kings or religious heads who could enforce conformance
to their writings. Smritis were not lawbooks unlike their modern
counterparts.
A translator tries to search for similar concepts in his own culture.
There is a danger that the premises and philosophy of a particular
set of ideas evolved in a particular historical and cultural context
may get imposed on the concept to be translated. When a dominant
ruling culture tries to translate, the danger of the original essence
getting distorted is higher. This is what has probably happened
to various Sanskrit terms when they were translated into English.
'
Mere restatement in English legal terminology distorted the Hindu
and customary rules' (Galanter). Thus translation of ' Dharma'
as 'religion' imposed the limitations of 'religion' on 'Dharma'
and prevented its full understanding. Similarly calling 'Smruti'
as 'Law book' imposed the dogma of inflexible commandments (Moses)
onto smritis. To give fuller justice to this subject we need to
separate ourselves from the conditioning due to our system of education
and zeal of reformism. To quote (Gonda).
The
study of Indian antiquity requires familiarity with a non-modern
mentality; With a dynamic conception of the cosmic events with
religious convictions indissolubly associated with social life,
with a tendency to be in conformity with tradition and Socio-religious
norms and ideals; with mythical formulations or thoughts, which,
though products of imagination, are far from being mere fantasy,
with various forms of speculation that, as a rule unrestricted
by disciplined conformation with the results of objective and
analytical investigation, found unlimited possibilities for development,
and with what in the eye of modern men would be a marked oversight
of contradictions and incompatibilities.
Apart
from oral and literary traditions, other source material, specially
epigraphical records help us immensely. It tells us how little
human nature has changed during last thousands of years.
The legislative powers of any king were extremely limited. He
could not oppress people by means of harsh and unjust laws. This
was because he was enjoined to govern the people and to administer
justice strictly in accordance with the civil and criminal laws
laid down in the Smrutis. This is clearly stated in NAVASARI
plates (A town in Surat district of Gujrat State) of Jayabhatta-3,
(Kalachuri year 456 which according to Cunningham is 706 A.D.)
His
son (was) the illustrious Dadda-(3), who was clever in performing
his duty by discrimination acquired by the study of the sacred
treatises composed by the great sage Manu and who, by maintaining
(The institutions of) varnas (caste) and Ashramas (order of
Life).
In the same plate, while exempting the done from various taxes,
he has also been exempted from fines imposed for the ten offenses.
According to Dr. Mirashi these ten sins are the same ennumerated
in the shukranitisar (adhyay-3, sl-6) viz. murder, theft,
adultery, slander, harsh language, lying, divulgence of secrets,
evil designing, atheism and perverseness. The same enumeration
occurs in the Ashtanghridaya of vagbhat. [11]
Some
of the early records of northern Shilaharas mention officers
such as chauroddharanika (the eradicator of thieves) and
Gaulmika (station-house police officer). [12]
As mentioned earlier the fines for the various offences were determined
by a committee of sixteen members. It was known as Smarika,
probably because it called attention to the relevant rules in
Smrutis. [13]
This is a clear cut indication that Smrutis did influence
while framing and implementing administrative and revenue guidelines
in the village functioning. Some Shilahara inscriptions
have mentioned kumarisahasa (crime against an unmarried
girl) as an instance of Sin. [14]
The administrative pattern for maintaining law and order at the
village level is found to be maintained by principles carried
forward by tradition of thousands of years. We find that till
the advent of the British, in some or other form this system was
in vogue. All sections of the society including shudras formed
a part of this system. Mountstuart Elphinstone has classically
described this in his Book. He says,
The Patil is responsible for the police of his village. He is
aided by his coolkurnse and chaugulla, and when the occasion
requires it, by all the inhabitants. His great and responsible
assistant in matters of police is the village watchman, who
is called the Talarree in the carnatic, the mahar in the maratta
country, and the Jagla in Candeish, in the first named district
he is by caste a Beder, in the second a Dher, and in the third
a Beel. Though there is only an allowance for one watchman in
a village, the family has generally branched out into several
numbers, who relieve and aid each other in the duties. The duties
are to keep watch at night, to find out all arrivals and departures,
observe all strangers, and report all suspicious persons to
the patil. The watchman is likewise bound to know the character
of each man in the village, and in the event of a theft committed
within the village, bounds, it is his business to detect the
thief. He is enabled to do this by his early habits of inquisitiveness
and observations, as well as by the nature of his allowance,
which being partly a small share of the grain and similar property
belonging to each house; he is kept always on the watch to ascertain
his fees, and always in motion to collect them. When a theft
or robbery happens, the watchman commences his enquiries and
researches.
While
describing how the boundary disputes were settled, Elphinstone
has made a very important disclosure, he states
Those about boundaries, which are extremely frequent, (except
in candeish) were settled by a Panchayat, composed of Daishmooks,
Daispandies, patils and coolkurnees, assisted by the Mahars
of the disputing villages, who are the established guardians
of landmarks and boundaries. [15]
This is the same book in which Elphinstone has made uncomplimentary
remarks regarding Barhmins, and has also criticised their character.
Tha participation and the nature of roll Mahars are playing
in the village affairs as described by Elphinstone does not
indicate that they were outcaste and untouchables. The condition
seems to have deteriorated speedily in the British raj. Police
became a servant of the state and he started receiving low and
inadequate pay. He used to received about a Rupee a month. Mr.
Wilie, First Judge of the Calcutta Court of small causes, has
described the situation very aptly
The
police can oppress with impunity. The visit of a police darogah
(officer) to a native villager is a calamity. If a robbery
is committed, the poor are afraid to complain; if any one
is wanted as a witness, he is taken for several days from
his labour and treated as a prisoner; if a criminal, or suspected
criminal, is arrested, he is at once presumed to be guilty,
and is very probably tortured to confess.... The insecurity
of property induces all who can afford it, to hire watchman,
in fact, bludgeon men, of their own; and these, whenever occasion
requires, are of course used as agents of any amount of violence
and oppression.... The people sink under the weight of fear,
and heir natural couardice is increased by a sense of hopelessness
of resistance. Justice is to a large extent, practically denied
them; the land-holders and the police are chief powers they
know; and they are hunted by both, till they surrender themselves
to servility, to despair. [16]
Many may find this description a true picture of today !
The
British while justifying their coloniel rule in Indian claimed
Indians lacked civilised system of self rule and their presence
in this country gave India a sense of justice and rule of law.
Many Indians today hold these views in their heart. These views
are not only incorrect but they are blatant lies. The British
supplanted ancient Indian law and introduced in its place their
own system of law. One has to understand that this was not a
simple change of laws but was the imposition of a totally alien
philosophy, understanding of human nature, belief system, way
of life and concept of polity. This was and is a mismatch. We
have descriptions and reports of fragility of British judicial
system and its impact on the social, moral and cultural fabric
of the society. Situation of law and justice 50 years after
colonial consolidation of power in Indian in all respect i.e.
about 150 years ago from now ann that of today is astonishingly
similar. This is not an accident or coincidence but it is a
failure at fundamentals. It was an enevitable consequence of
that imposition. To quote Wylie again.
It
is, doubtless, the first duty of a state to make its authority
respected in every corner of the land, and to render the redress
of the grievances of all classes cheap and expeditious; and
not, by the imposition of taxes on the process of the law, to
close the courts of justice against the evices of the poor.
Tried by the above rule every upright end intelligent person,
who is well acquainted with the interior of the country; will
be constrained to acknowledge that, in this respect, the Indian
Government fails. The administration of the law is too dilatory
and expensive for the labouring poor to avail themselves of
the protection which it is designed to afford; many, therefore,
submit to oppression, extortion and robbery as a lees evil than
appealing to the courts; while he who gains his suit sustains
in the payment of legalised fees and enforced ones, in time
unnecessarily wasted, and in injury to his crops while, absent
from home, a loss which he often feels for years, and sometimes
during the whole of his life. [17]
When
there was an outright rejection of more organised ancient literature
of law and justice it was just not possible that any sympathy
or efforts to understand a system like oaths and ordeals, which
has a divine element could have been appreciated. [18]
The
method appeers to be irrational and barbaric to the modern mind.
A.dubois believed ordeals to be foolish beliefs of which human
mind was capable of. [19]
Romans, Chinese or ancient American Indians had refused to develop
the system. It is developed elaborately only in India. African
and Teutonic people developed it partially. Greeks probably
knew it but their law ignored it. [20]
India had living tradition of writing on the subject of law
and justice till the latter half of l5th Century. Scholars hardly
can ignore the work of Vardhaman Upadhyaye titled Dandaviveka,
a unique medieval sanskrit work on Hindu Criminal Law.
[21]
I
have earlier quoted views on villages of Dr. B.R. Ambedkar the
father of our constitution. Now it would be worthwhile to see
views of Pandit Jawaharlal Nehru, the mentor of modern Indian
constitution which speak volumes about the mind set of these
leaders.
A
village, normally speaking, is backward intellectually and
culturally end no progress can be made from a backuard environment
narrow minded people are much more likely to be untruthful
and violent. [22]
Before conclusion I wish to point out the glaring irony of the
contrasting treatment of manusmruti by two viewpoints,
poles apart.
Dr. B.R. Ambedker 'father of modern Indian Constitution' had
burnt manusmruti as if it was the root cause of all evils
afflicting Hindu society. Neadless to say, he tried to give
a new code instead. While manusmruti survived for over
two thousand years the modern 'code' within 50 years of
formulation, does not seem to be delivering the goods, inspite
of 79 amendments.
On
the other hand, William Jones, father of Indology and the first
translator of "manusmruti did not despise it. The
stature of Jones in St. Pauls Cathedral in London holds a volume
of Manu in his hand.
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