INSTITUTION OF JUSTICE
KING AS TRUSTEE
Property of Minors and Sonless Widows (8-27 to29)
Jha translates the next verse (8-27) as: The king (raja) shall take care (anupalaya) of the property owned by a minor (bala), till such time as he may return home from the teachers house or till he may have passed his minority. Buhler translated it as: The king shall protect the inherited (and other) property of a minor until he has returned (from his teachers house) or until he has passed his minority. William Jones read it as: The property of the student and of an infant, whether by descent or otherwise, let the king hold in his custody until the owner shall have ended his studentship or until his infancy shall have ceased in his sixteenth year. [The version of Manusmrti used by Jones and his translation came in handy for the British East India Company to adopt the notorious policy of lapse.]
Katyayana made the relatives of the minor responsible for the safe custody of this property. Jha refers to Medhatithis reply to the question why this clause has been introduced here if it was under the custody of the King and which being a duty of the king, could not be disputed by any party. It is precisely to caution the judges on this aspect that it has been introduced here, he says. Medhatithi suggests that in the case of the boys of the twiceborn (dvijas) the return from the school shall be the limit for such custody and in the case of others it shall be the passing of minority. [Jones took the initiative in fixing this at the age of sixteen.]
Jha translates the verse (8-28) as: There shall be similar protection in the case of barren women or sonless women, of women devoted to their husbands and of widows faithful to their husbands, when their family is extinct and when they are in distress. Jones reads it as: Equal care must be taken of barren women, of women without sons, whose husbands have married other wives, of women without kindred, or whose husbands are in distant places, of widows true to their lords, and of women afflicted with illness. Buhler reads it in a similar way.
Most of the petitions were on behalf of minors and women in distress. It was the duty of the state to guard their interests. The state could give legal protection to them by placing them in the custody of dharmasthas nominated by the king or by incorporating provisions in law that would be binding on all irrespective of the ability of the king to give physical protection to them. The king did not want to antagonize powerful clans. But law could guard the weak.
Only as long as a married woman did not walk out of her marital home in spite of the humiliations heaped on her and deprivations she was subjected to she could succeed in the court of law. Medhatithi notes this aspect. Marriage had cut her off from her parental home forever. Her brothers were not free to come to the rescue of their sister. Her husband might have abandoned her as she was infertile or was sonless. She was not willing to submit herself to niyoga (intercourse with the person nominated) when her husband was found to be impotent. After supersession or widowhood her brothers-in-law snatched the share her husband was entitled to. She would either take to vagrancy that would bring exile from home and the village and total poverty or turn to nun-hood under the protection of the dharmastha.
The superseded wife or the widow could be restored her rights to the property in her clan only if the state intervened in her favour. Manusmrti makes the king personally responsible for her protection and his action could not be challenged in any court of law. It is unsound to posit that Manusmrti permitted men to trample on the rights of the women, especially of the widows. The debates on the misbehaviour of women need not be entered to here. The dayadas, kinsmen of the deceased man, were not to be allowed to deprive the widow and her sons of their shares in the property.
When these women are alive if their brethren (svabandhus) should appropriate their property, the righteous (dharmika) ruler of the agro-pastoral community (prthvipati) under whose ambit they come shall inflict on them the punishment due to thieves.(8-29) Neither the dayadas (brothers-in-law) nor the jnatis(brothers) could be trusted to protect the interests of superseded wives and sonless widows. The rulers of the rural areas had to protect them and only they could do so and they could do so only by implementing the provisions of Dharmasastra. [The duty of protecting the women in distress was assigned to the prthvipati, and not to theparthiva or to the nrpati. The king (raja) was not directly responsible for their protection.] These provisions were not loaded against women. Misgivings on this aspect have to cease.
PROPERTY: LOST, STOLEN, RECOVERED, DISCOVERED
The members of the bench are told that the king (raja) shall keep unused (nidhapa) (in his charge) for three years the property (riktham) whose owner (svami) has disappeared. Any time up to three years the owner might return and take it. But after that it would be handed over to the local civil administrator (nrpati) (who was in charge of the affairs of the free men). (8-30) The question of the king as the head of the state annexing it as his personal property or as state property does not arise. Both later smrtis and medieval commentators have missed this point.
It is not the property of the clan (kula) or of the dayadafraternal oligarchy. It is the personal property of the owner (svami) and the ownership lapses, as he has not been using it for more than three years. Its ownership reverts to the local administration, which has made it available to him. Jones was not to the point when he translated this verse as: Three years let the king detain the property of which no owner appears, after a distinct proclamation; the owner appearing within three years may take it; but after that term, the king may confiscate it.
The medieval commentator, Medhatithi, went beyond the intent of the editors when he extended the concept, riktham, to lost property found by the conservator of the forest or other officials of the state or on public road. He interpreted: Before the lapse of three years, if some one reports with proofs that the property belongs to him, then it should be made over to him, after deducting the sixth part of it which is said to be the kings share (in verse 34) and after that the king shall take the property into his own treasury. Medhatithi points out that some have claimed that the nrpati does not become owner of the property not claimed even after three years but gets only the right to use it and enjoy the usufructory benefits. The medieval commentators were perplexed by the several interpolations made in the original text from time to time and also by the contradictions among the smrtis. They had overlooked the distinction between the two terms, raja and nrpati and their respective jurisdictions.
He who says this is mine should be questioned in proper form; and the owner ought to receive the property after having correctly described the colour, the number and other details regarding it (8-31). If he does not provide a correct account of the place and time, and also the colour, form and size of the lost article, he deserves a fine equal to that article (8-32). These verses pertain to lost and found property. Such property should remain in the charge of specially deputized officials; and the king (raja) shall cause to be killed by an elephant the thieves of the property. Only the king was empowered to impose death sentence (8-33).
Out of the property that has been lost and found, the civil administrator (nrpa) remembering dharma, that is, the provisions of the dharmasastra, shall take the sixth part or the tenth or the twelfth (8-34). This was for administrative charges and also as penalty intended to correct the person who was careless. Dharmasastra corrects the defaulter and also the delinquent while Dandaniti punishes him for his violation of the rules and laws.
If a manava affirmed on oath (satyam) that the trove of treasure (nidhi) was his, the king (raja) was not to question it. He should hand it over to him after taking one-sixth part or only one-twelfth part. The manava was a person who adhered to the Arthasastra of Pracetas Manu, which was then followed by many states.
A manava unlike the commoners, manushyas, who were governed by the codes of their clans and communities and the free men, naras, who were governed by the codes of the region, desa, where they resided and plied their trade, was governed only by the codes of his class, varnadharma.
The manava was not a subject (praja) of the king in whose territory he happened to reside or stay while pursuing the vocation he had opted for as the member of a particular socio-economic class (varna). He was a citizen of the world, as it were, and no state could place restrictions on his movements. (The discovered property or treasure belonged to the discoverer and so the created property to the creator.)
The king (raja) was not the owner of all the lands in his realm though he had the right to levy taxes on those who owned and used the land. He could not claim as his a treasure-trove because it was found within his realm (8-35).
Medhatithi refutes Gautamas claim that the treasure trove when found is state property. This applies only to the case where its original hoarder is not known. Most treasure trove was ancestral property of the discoverer. But if it was not such property, the discoverer would get only one-sixth and the rest would go to the state. The state had the right to demand as royalty one-sixth of the value of the gems or ores discovered under its soil by an explorer. But, he who speaks falsely shall be fined the eighth part of it or a smaller fraction and he would lose it (what is claimed to have been discovered by him) to the state (8-36).
Some have interpreted that the fine would be on his entire property. Some persons had unaccounted wealth and claimed that they had come across treasures. Later editors might have tampered with this verse and benefited the cheats. Similarly, the next verse (8-37) that permits a learned Brahmana, who has found the treasure buried by his ancestors, to take that wealth entirely is a later addition. Such additions have given justice a tilt in favour of the higher classes, particularly in favour of the Brahmans and often at the cost of the state. The king was eligible to get fifty percent of the treasure discovered, according to some authors. But rarely did he get so much.
When the king himself finds a hoard buried under the ground, he shall give one-half of it to the Brahmanas and have the other half put in his treasury. He was not permitted to use it as his personal property (8-38). But this does not justify the Brahmans claiming half of it. The later editors, mostly Brahmans, were too greedy. They gave little to the state and the society and fleeced them both. True, some Brahmans were not enamoured of wealth though they pleaded for protection by the state. Only intellectuals who were not enamoured of wealth deserved to be protected.
Jha reads the next verse (8-39) as: Of ancient hoards, as also of minerals under the ground, the king (raja) is entitled to his share, by reason of his protecting (raksha) them, he being the lord (adhipati) of the soil (bhumi). He omits to mention that it is half portion (ardhabhaga) of the treasure. Buhler claims that this verse is a distinct recognition of the principle that the ownership of all the land is vested in the king. This interpretation was a deliberate move by the British lawyers to annex all the land of India for the British rulers allowing the Indians to cut their own throats with their own law-book.
The term adhipati indicated only overlord-ship and not ownership of the lands. The local community and its individual members owned the lands where they were working whether these were agro-pastoral lands or forests or mines. The king (raja) was superior to the bhumipati or prthvipati who administered the lands. Like him they too had no sovereign rights over the land.
Jones held that the king could claim half the share because he gave general protection to the land. Even that was a distorted claim. Jones tried to establish that the owners of the lands in the colonies over which the British King and his representative, the Governor-General had established their hold through clandestine agreements to extend protection against their rivals and enemies should treat the East India Company as a partner eligible for half of the produce even as the share-croppers were eligible to. The king of Manusmrti could claim only one-sixth of the produce, crops or ores as tax and had to protect the producers.
Some Indian rulers might have been greedy and claimed half the crops and half the ores. Some might have taken more also. Greed is not the monopoly of only some persons! Wealth (dhana) stolen by thieves should be restored by the king (raja) to men of all classes (varnas); by retaining such (wealth) the king imbibes the guilt (kilbisha) of the thief. (8-40)
The editors of Manusmrti refuted the claim that all recovered stolen property was the wealth of the state unless its owner put forth and established his claim to it. The king had to hand over the recovered but unclaimed stolen property of individual members of the classes, to the council of representatives of the class to which that owner belonged (as acknowledged by the thief caught or observed from the type of property recovered).
While communities (jatis) and clans (kulas) had their own regulatory councils and these have survived down the ages, the councils of classes (varnas) were constituted from among the elected and nominated members of the two bodies, paura and janapada, the city council and the rural assembly. A varna was a confederation of clans and communities and individuals following similar vocations for livelihood and similar orientations. Where paurajanapadas (whose members were influential chiefs of clans and communities settled in the state) were not formed, the kings functioned as greedy autocrats.
Institution of the Rights and Duties of the Individuals
Jones translated the verse (8-41) as: A king who knows the revealed law must enquire into the particular laws of classes, the laws or usages of the districts, the customs of traders and the rules of certain families and establish their peculiar laws, if they be not repugnant to the law of God. This was a total distortion of the text and was intended to thrust the British laws (that were claimed to be in tune with Christianity and the wishes of God and His laws as incorporated in the Bible) on the Hindus by interpolating them in the Manusmrti by suitably doctoring it with the aid of pliable Brahman scholars drafted by the administrators of the East India Company.
The description of the term, dharma as revealed law or as the law of God is untenable. Dharmasastra was edited by a board of ten chiefs of the people who belonged to diverse sectors of the larger society and reflected the consensus they arrived at.
Buhler who edited and translated Manusmrti after India came under the British Crown in 1857 did not have such a purpose but did not totally retract on the distortions and interpolations effected by his predecessors. He translates this verse as: (A king) who knows the sacred law, must inquire into the laws of castes (jati), of districts, of guilds, and of families, and (thus) settle the peculiar law of each. Burnell presents this verse as: (A king) knowing what is right (dharma) to be established, after making careful inspection of the laws (dharma) of the different castes and country-folks, and the laws of the (different) guilds, and the laws of the (different) families). It is imprecise to describe dharma as sacred law or as law or as what is right.
Jha translates it as: The king knowing his duty (dharmavid) shall determine the law for each man (svadharma) after having duly examined (samikshya) the provincial (janapada) laws (dharmas) pertaining to each caste (jati), the laws of guilds (srenidharmas) as also the laws (dharmas) of families (kulas). [We would use the terms, clan, community, class, economic corporation, and region to indicate kula, jati, varna, sreni and janapada for greater precision. Race, caste and tribe, are terms to be eschewed.] Jha too was imprecise when he translated the term, dharma as duty.
Yajnavalkya insisted: Families, castes, guilds, corporations and the provinces, when they deviate from the paths of their duty, the king should check them and bring them round to the path.
Jha notes that Sukraniti insisted: The king should perform his duty by carefully studying the customs that are followed in countries and are mentioned in the scriptures, as well as those that are practised by castes, villages, corporations and families. Those customs that have been introduced in the country, caste or race should be maintained in the same condition; for, otherwise the people get perplexed. Narada held: Families, guilds, corporations, one appointed by the king and the king himself are invested with the power to decide law-suits, each succeeding one being superior to the one preceding in order.
Brhaspati said: Cultivators, artisans, artists, moneylenders, and persons belonging to particular religious sects and robbers (!) should adjust their disputes according to the rules of their own profession. The king shall cause the disputes of ascetics and of persons versed in sorcery and witchcraft to be settled by persons familiar with the three Vedas, and not decide them by himself for fear of rousing their resentment. Relatives, companies of artisans, assemblies and other persons duly authorized by the king should decide the law suits among men, excepting causes concerning violent crimes. Meetings of kinsmen, companies of artisans, assemblies and chief judge are declared to be the resorts for the passing of sentences, to whom he whose cause has been previously tried may appeal in succession.
The king was not a legislator and he was not the judge. Of course, the judiciary had its hierarchy based on the socio-economic hierarchy. [It is a universal though not a pleasant experience that men of higher social or economic or political strata do not honour the authority of those belonging to the lower strata, even if efficient persons from among the latter are appointed as members of the judiciary.] The chief judge alone was appointed by the king. Otherwise, the judiciary was independent and it upheld the existing social traditions and social values and economic conventions.
As Brhaspati warned, the time-honoured institutions of each country, community and clan should be preserved intact lest the people should revolt. He was a pragmatist. The expression, jati-janapada dharmas, had provoked much debate as noted by Medhatithi. Much of it is diversionary tactics intended to deny the native ethnic groups that dominated the rural areas the right to pursue their own laws undisturbed by those of the new cultural elite.
One view was that this expression stood for those laws whose beginning could not be traced and which related to the duly qualified persons (purushas) among those born and living in a particular province (desa). Another view was that the laws referred to pertained only to the men of certain localities only and not to all the Aryas. To whom these laws were applicable could be deduced by reference to the leaders (purushas) of those communities and regions, jatis and janapadas.
What were applicable to the cultural elite who had personal property and had freedom to go to any place or reside anywhere could not be applied to the aliens, mlecchas. The laws of local communities were not applicable to both cadres. The mlecchas followed moral codes, dharmas that were akin to those of lower animals (like marrying ones own mother) and they were not entitled to any other rites and practices.
The ruler who has sway over all the lands (sarvabhauma) is advised not to interfere with the practices of these aliens. For, such (native) regional (svadesa) practices (acara) are permitted by the laws (dharma) of their community (jati) in geographical proximity to the locality of the janapada inhabited (nivasa) by them. They were aliens to this janapada but they were citizens of the larger country (lands, bhumi) governed by the overlord, sarvabhauma.
The issue of compatibility of these practices that are not of the janapada where they are resident but are native to the country or region from where they hailed with those native to that janapada is not to be examined by the judges. Similarly the compatibility of the latter with those followed by the cross-regional cultural elite, Aryas, is outside their purview. The issue was whether the rich landlords and traders who claimed to be residents of a particular state concerned but were free to move in any other state but did not stay there as its native citizens could be asked to abide by the social and cultural laws of the latter state.
The inability of the orthodox champions of Dharmasastrato enforce their interpretation of the code on all the sections of the population of the larger country is reflected in the chastened stand expressed by Medhatithi. He says: The incompatibility of scriptures has a meaning only for persons entitled to the scriptural acts and not to lower beings. In other words, during the medieval times, the lower strata of the society could not escape from the clutches of law by claiming that they were confused because the laws were full of contradictions.
Medhatithi then deals with the duties (observance of non-violence, adherence to truth, absence of wrath, maintenance of purity and control of the senses) that Manusmrti has prescribed for all the classes including the mixed classes that are stained by pratiloma marriages. He argues that mlecchas too are covered by this rule (10-63).
These duties were applicable to all the inhabitants of Aryavarta. As far as the duties of the four varnas are concerned these duties were applicable to the four classes, varnas, beyond the boundaries of Aryavarta also but they were not to be insisted on in the case of others who had not consented to abide by these duties, which are the core of varnashrama dharma.
While the aliens resident in Aryavarta (the area south of the Himalayas and north of the Vindhyas) had to honour and abide by this dharma it was not imposed on those outside this area. It was voluntary for them to accept this code and abide by it, according to this interpretation. All the four classes are Aryas. They are not restricted by the concept of local rules, desaniyamas, and cannot be prevented by the latter from following the varna and asrama dharmas.
Medhatithi, a medieval commentator, distinguished among local practices (desa acharas), local rules (desa niyamas) and local laws (desa dharmas). Manava Dharmasastra consented not to bar the first but contended that the second be respected by the non-Aryas in Aryavarta and by the Aryas outside Aryavarta. For, in Aryavarta, varnashrama dharma was also the desadharma; but outsideit, it was not so.
Varnasrama dharma had a binding force in Aryavarta as its desadharma but not outside it. There it survived at the mercy of the local desadharma. [It needs to be pointed out here that when the Manava Dharmasastra was drafted the entire Western Ghats up to the Indian Ocean was treated as Vindhyas. Only the densely forested areas of the Indian peninsula were outside Aryavarta. It was known as the forest of the exiles (Dandakaranya) and Kalinga (Orissa) was in the gray zone as Kaivarta.]
There are persons following a particular profession, such as traders, artisans, usurers, coach-drivers etc. The laws governing these professions are corporation laws (srenidharmas). Any one transgressing them would be punished but not under Manava Dharmasastra. Jha was imprecise when he translated kula as family and equated it with race. Vamsa is not race.
The rules laid down by remote ancestors of a clan are known as kuladharmas. The king shall punish one who acts against them. Medhatithi says that he has reiterated these here to preclude the idea that such laws govern only particular groups of men and cannot be regarded as equity proper. The transgression of these laws does not however fall within the category of breach of contract.
Buhler translates the next verse (8-42) as: Men (manava) who follow their particular occupations (svakarma) and abide by their particular duty become dear to people (loka) though they may live at a distance. Burnell reads it as: Men who attend to their own occupations, performing each his own occupation, become dear to the world even though they are far away.
Jones translates it as: All men who mind their own customary ways of proceeding and are fixed in the discharge of their several duties become united by affection with the people at large, even though they dwell far asunder. Jha reads it as: Men following their respective occupations though living at a distance come to be liked by the people while they remain firm in their own duties.
Svadharma (the rights and duties of the individual) has to be in accord with his rights and duties as a member of his clan (kula), his vocational group (sreni), his native community (jati), the region where he resides (janapada), the area to which he belongs (desa), his class (varna) and the stage of his life (asrama). Some manavas who claim to be citizens of the world rather than of a particular territory may stay away from their immediate society or social world (loka). But the latter would have a soft corner for them if they abided by their (chosen) vocations that are in tune with these duties.
The king is advised not to take a grim view of some persons being popular among their social sectors (lokas) in spite of their not pursuing their traditional or assigned vocations and instead pursuing ones in tune with their personal aptitudes but not violating any of the codes. They do not encroach on the duties and vocations of other organized groups. It is not sound to translate the term, svadharma as ones traditional and native religion and paradharma as the religion of the outsiders.
(8-43 to 46)
Jha translates the next verse (8-43) as: Neither the king (raja) himself nor any chief servant of his (purusha) shall promote a suit (karyam); nor shall he suppress a suit that has been brought up by another person. Burnell too takes this position. This ban has led to interesting debates. It is obvious that the king could not pursue any vocation privately or own personal property and this would preclude all chances of any one violating his rights over such property. He need not resort to litigation to get his property restored.
He should not get his property managed by his men (purushas) and require them to file suits on his behalf. Obviously this was intended to avoid the impression that the court failed to be fair because the plaintiff was the king himself. If his men or kinsmen had harmed someone and the latter makes the former defendants, this should not be interfered with. The judiciary would be seen to be free and fair only if the king honestly kept himself aloof from the plaint. The civil administrator, nrpati, who heard most civil cases, was a subordinate of the king. He would not be able to give a just verdict if one of the parties was the king himself or his man.
Just as the hunter discovers the foot-print of the deer by the drops of blood, so should the civil administrator (nrpati) discover the righteous conduct (dharma) by means of inference (anumana). (8-44) Burnell read it as: As the hunter directs (his) step by the blood-drops of the beast, so should the king direct the course of justice by means of inference. Burnell and others had failed to notice that the nrpati was not king. It is also not correct to translate the term, dharma, as justice.
The nrpati was not a jurist and was not trained in nyayasastra He was not a great scholar but was a respected pious person and was impartial. We should avoid giving the term, anumana, a highly logical construct. The nrpati was reasonably accurate in finding the culprit. (science of arriving at just conclusions using logical systems). He could only slowly arrive at a conclusion by following the trail of evidence left behind by the culprit. He had to be alert and patient.
Jha translates the next verse (8-45) as: When engaged in judicial proceedings (vyavahara-vidhi), the king shall keep his eye upon the truth (satya), upon the object (artha), upon himself (atmanam), the witness (sakshi), and upon the place (desa), the time (kala) and the aspect (rupam).
Jones translated it as: Let him fully consider the nature of truth, the state of the case, and his own person; and next, the place, the mode and the time; firmly adhering to all the rules of practice. Burnell read it as: Abiding by the rules of legal suits, let (the king) examine the truth, the thing himself, the witnesses, the place, the time, and the form.
The judge (not necessarily the king, raja, or the civil administrator, nrpati) was asked to find out what the truth was and keep out giving credence to any aspect not based on truth. Medhatithi suggests that the truth, satya, found out by the ruler (here, the nrpati) though not known to or claimed in the plaint must be taken into account. The wealth, artha, involved in the dispute too must be given importance. He has to take into account his own status vis--vis the dispute and the contesting parties. He has to ensure that he is not an interested party. If his interests are likely to be affected, he must not hear the suit himself.
He had to ensure that the witnesses depended on by the parties were honest persons. False witnesses must be thrown out of the court. Besides giving adequate weight to the place where and the time when the event of signing the contract or breach of it took place, he has to determine the form, rupam, the litigation had taken, whether it was a civil offence or a criminal one or of a mixed type.
Whoever tries the case, whether he is the local civil administrator or the judge or the king himself has to pay attention to the above factors to arrive at a proper finding. The interpretations of the words, place, time and form given by some medieval commentators seem to differ from those given by Medhatithi.
Jha translates the verse (8-46) as: What may be found to have been observed in practice by the good and the righteous twice-born men (dvijati), that he shall ordain (prakalpa) for countries (desa), families (kula) and castes (jati), provided that it is not antagonistic. Buhler translated it as: What may have been practised by the virtuous, by such twice-born men as are devoted to the law, that he shall establish as law, if it be not opposed to the (customs of) countries, families and castes.
Burnell read it as: Whatever may be practised by good and virtuous men of the twice-born castes, let (the king) cause that to be ordained (as law), if it does not conflict with (the laws of) districts, families (and) castes. Jones translated it as: What has been practised by good men and by virtuous Brahmans, if it be not inconsistent with the legal customs of provinces or districts, of classes and families, let him establish.
These editors of Manusmrti were interested in explaining the policy adopted by the British government while imposing their own laws on their Indian subjects under the guise of Manus laws. This ruse was not necessary.
Jones, an administrator and judge, translated dvijas as Brahmans and excluded the Kshatriyas and Vaisyas from its ambit. He was not precise when he treated jati as class. Buhler claimed that he was basing his interpretation on Kulluka, Narada etc. while Jha followed Medhatithi.
The kings who were unable to arrive at an accurate picture of the practices, rules and laws actually followed by each class or community or area, were advised to accept those practices followed by the virtuous educated persons as the rules to be followed by all.The twice-born were not authorized to thrust their own practices on others. Only when there were no references in the codes of clans or communities to the practices to be followed on a particular issue, they were asked to follow those of the pious persons and educated communities.
However these should not be antagonistic to those of the clans, communities and local areas. What was practised by the pious and educated was unexceptionably good but the king could not afford to antagonize any section of his population, natives or immigrants by denying the validity of their laws.
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