INSTITUTION OF JUSTICE
NON-PAYMENT OF DEBT
(8-47 to 60)
On being prayed by the creditor for the recovery of money from the debtor, he shall make the debtor pay to the creditor the money proved to be due. (8-47) The rich man (dhanika) who prayed for getting back the money he had loaned to the debtor had to prove that he had indeed loaned that amount to the latter and that the latter had not yet repaid it to him. The creditor was not permitted to resort to any forum other than the court of justice to get it back. This court could give him justice only if it had the necessary coercive power. The proceedings were simple as long as the creditor and the debtor were free individuals and were not bound to or backed by clans, guilds and corporations or srenis.
But often there were no witnesses or documentary evidence to the transaction and at times the transaction itself was not between equally free men. In later cases even confession to taking loan or to non-repayment of it could not be taken at face value.
As long as the trial was in open court and on the basis of only affirming affidavits on oath, the civil administrator could use his intuition and give the verdict and enforce it. Often such judgments went in favour of the rich as the poor were not trusted and were also helpless. The state often favoured the rich and left the poor litigant in the lurch. The editors of Manusmrti felt it necessary to provide adequate safeguards against such miscarriage of justice.
The court and the state could not be expected to get the recovery effected for gratis. How did the creditor expect the state to act on his behalf after the latter had found that the former did indeed have a case? Having determined the means by which the creditor may be able to get back his money, the judge shall by those means make the debtor pay up. (8-48)
He could resort to any permissible means depending on its cost effectiveness for the creditor had to pay a percentage of the cost of recovery to the state to compensate the trouble it took to help him out. But such litigation should not be encouraged by the state to enrich itself for often the rich creditors were impoverished by their unscrupulous debtors.
Jones translated this verse as: By whatever lawful means a creditor may have gotten in possession of his own property, let the king ratify such payment by the debtor, though obtained by even compulsory means. This meant that the creditor asked only for permission from the court to use any method to get back his money and that the latter had to grant that permission.
The state was at the mercy of moneylenders as much as the poor were. This was the medieval state with which Jones was acquainted. If this verse meant that the court had no state in position to get its verdict executed and that it hence permitted the creditor a free hand to recover his property, we get the picture of anarchy and the debtor too would resort to any means to prevent such recovery.
The principles of settling economic disputes, Vyavahara, presuppose the existence of states that could legislate, arbitrate, pass judgments and execute them on their own and keep both the creditors and debtors in check.
Jha translates the next verse (8-49) as: He shall make the advanced money repaid by means of (a) good faith, (b) tactful transaction, (c) trick, (d) moral pressure, and (e) force, the fifth. Buhler translated it as: By moral suasion (dharma), by suit of law (vyavahara), by artful management (cchala) or by the customary proceeding (acara), a creditor may recover property lent; and fifthly by force (bala). Burnell read it as: By negotiation of friends, by legal action, by trickery, and by received fashion, and fifth by force may a creditor get back the money he has lost. This reading is unhappy.
Jones interpreted it as: By the mediation of friends, by suit in court, by artful management or by distress, a creditor may recover the property lent; and fifthly, by legal force. It was the duty of the judge to help the creditor to recover the property that it had been proved as having been lent by him to the debtor. The judge could use any of the first four means at his disposal. If he failed in all the four he could advise the king to use state power to recover it from the debtor. It is presumed that at least the latter was his subject.
The judge was using the authority of his chair as dharmasana. It gave him the power to excommunicate under social laws, dharma, one who failed to return the loan taken. It is not to be treated as taking a charitable disposition and allowing the debtor to repay the debt in instalments. Where the debtor was found to be not bound by his family or clan, legal proceedings had to be permitted. This presumed that the debtor was in a position to pay but was refusing to pay.
The third method, cchala, was to be adopted when though it was highly probable that the creditor had indeed loaned that property he could not produce witnesses or documentary evidence and had been gullible and taken in by the shrewd debtor.The latter had to be with equal shrewdness made to part with that property and the creditor was to be helped out.
The fourth method was preventing the free movement of the debtor. The civil administrator and the judge appointed by him could send him to the civil prison or intern him.They could not inflict corporal punishment or make him serve sentence of labour. They had to seek the help of the king to use force to make the powerful and recalcitrant defaulter return the property to the creditor. Jones and his Brahman assistants had missed significant clues.
The next verse (8-50) seems to be an atrocious interpolation if as Jha translates it, the creditor who himself recovers his money from the debtor should not be prosecuted by the king (raja) for recovering what is his own property. This seems to have been recommended by Yajnavalkyasmrti, which found that most kings were too weak to ensure that justice was rendered to the honest. This verse implies that one who has personal property (svaka) and has exercised his right to retrieve it from his debtor without being required to submit himself to the control of the state should not be prevented from doing so.
The svakas were not nobles, devas, who were not subject to state laws or the state machinery. The liberal nobles, devas, were totally free from state control and every noble was as a sva, free to choose his way of life without being required to fall in line with other members of the elite. Devakas or svakas ranked next to these nobles. They enjoyed a status higher than that of the Vaisyas who were accountable to the state and the judiciary. They belonged to the bourgeoisie.
The next verse (8-51) says: The man who denies a debt shall be made to pay the creditors due, proved by evidence, as also a small fine according to his means.This clause comes into force when both the creditor and the debtor are subordinate to the state and its judiciary.if the debtor refuses to obey the order of the judge or the civil administrator and pay the creditor his due. The king should not only force him to pay but also impose a small fine (danda).
Some later Smrtis recommended a heavy fine equal to eighty percent of the amount due. The state asserts itself and protects the dignity of its officers.
The term, karanam, has been interpreted as evidence, but it is likely that it referred to the reasons cited by the debtor for not being compelled to repay the loan and those grounds being found unacceptable by the higher court. He was fined for attempting to set at naught a valid verdict given by the court. As it was an economic transaction, one should not be required to submit oneself to a course of action that would be harmful to him. The editors of Manusmrti reject this claim to be exempted from self-incriminatory averments.
On the denial (of a debt) by a debtor who has been required in court to pay it, the complainant must call (a witness) who was present (when the loan was made) or adduce other evidence. (8-52) Medhatithi and others have argued that the term desa, would call for reference to the man present at the place where the transaction was claimed to have taken place.
Many transactions took place in dark and in secret and without witnesses or documentary evidence. The civil administrator would have to visit the place where such a transaction was claimed to have taken place and call upon the complainant to produce other witnesses or evidence in proof of the giving of the loan. The case could not be decided in the precincts of the courtroom.
He who mentions the wrong place or who having mentioned it retracts or who does not understand that his previous and subsequent statements are contradictory fails in that suit. (8-53) Similarly he who having put forward a statement subsequently retracts and who on being asked regarding a fact previously alleged does not support it fails. (8-54)
He who secretly converses with the witnesses in a place not fit for conversation or who does not like the question being investigated or who falls back and leaves the court fails. (8-55) He who on being ordered to speak does not speak or does not prove what has been asserted or who does not grasp the previous and subsequent statements fails. This applies to both the plaintiff and the defendant. (8-56) This statement envisages a prolonged litigation and has been subjected to severe scrutiny by later Smrtis and commentators and by modern scholars.
Jones who was entrusted with the task of establishing the British system of legal proceedings in its colonies in India was too simplistic when he translated it as: On being ordered to speak stands mute; or who proves not what he has alleged; or who knows not what is capable of proof or incapable of proof; such a plaintiff shall fail in that suit. This would suggest a simpleton who is duped by a debtor should not expect relief from the court. This may be the reality but could not have been ratified and incorporated in the code of justice that is to be upheld.
The debate proves that prolonged litigation leads only to denial of justice though quick disposal of cases does not necessarily guarantee the success of the party who has been harmed. This was recognised by the editors of Manusmrti.
Having asserted that he has witnesses and on being asked to name them if he does not name them, him also, on these grounds, the judge (dharmastha) shall declare to have failed in his suit. (8-57)
Law-books debated on how much time should a litigant be given for first hearing, first appeal and final appeal etc. presuming that the courts had permanence and that states remained in comparative peace to go through these successive stages and yet establish that truth would prevail if not at all stages but at least finally. But the courts appear to have cast the responsibility to produce witnesses on the litigants and kept themselves out. Only those parties that were rich and strong could produce witnesses favourable to them. The dharmastha could not guard dharma.
If the complainant does not speak out, he shall be imprisoned and fined (danda), according to law (dharma). If the other party does not answer within three fortnights, he becomes defeated according to law (dharma). (8-58) The commentator says: If the plaintiff having gone to the king and on getting the other party summoned does not state his case, then, on having done all this needlessly he shall be imprisoned and fined. This was to deter flimsy plaints.
A prima facie case has to be established while filing the plaint before the civil administrator or the king who would then forward it to the judge (dharmastha). It is the dharmastha who allows the plaintiff to speak out. The procedure in his court required that the plaintiff put forth his case in full and if the latter failed to do so it would be treated as an attempt at misleading the authorities concerned and it was liable to be punished as abuse of the judicial process.
The editors of Manusmrti meant the latter (that is, the judicial process) here by dharma and not justice proper or law. Jones translated this verse as: If the plaint delay to put in his plaint, he may, according to the nature of the case, be corporally punished or justly amerced; and if the defendant not plead within three fortnights, he is by law condemned. Burnell too follows this interpretation. According to Kulluka, corporal punishment was to be given only for serious offences. (Buhler)
Jha translates the next verse (8-59) as: If one falsely denies a debt or if the other falsely demands it, these two, proficient in dishonesty, should be made by the king (nrpa) to pay a fine double that sum. This fine is imposed not by the king (raja) but by the civil administrator(nrpa). Presumably it is imposed even before the case is forwarded to the judge (dharmastha) for trial while examining whether a prima facie case has been established. The fine is said to be double the sum claimed or denied falsely. The fine has been levied for abuse of the judicial process (adharma) and is a deterrent measure.
Burnell translates this verse as: As large a sum as a man (falsely) denies or falsely claims (as a debt), twice this amount these two should be fined by the king (since they are) ignorant of the right. The civil administrator (nrpati) was required to handle disputes also between men who were engaged in economic transactions without knowing the provisions of the code (dharma) of procedure prescribed by the state and the judiciary.
Jones translates the next verse (8-60) as: When a man has been brought into a court by a suitor for property and on being called to answer denies the debt, the cause should be decided by the Brahman who represents the king (nrpa), having heard three witnesses at least. For verifying whether there was a prima facie case, the civil administrator (nrpa) (and not the king, raja) had to examine three witnesses. Then only he could forward it to the court of the jurist (Brahmana). This court that dealt with provisions of the constitution was superior to the court presided over by the dharmastha who dealt with laws.
Burnell reads it as: Now if a man on being questioned denies (a debt) when he has been compelled to appear (in court) by him who wants the property, he must be convicted by at least three witnesses in the presence of the king and the Brahmans. Buhler translates it as: (A defendant) who, being brought (into court) by the creditor, (and) being questioned, denies (the debt) shall be convicted (of his falsehood) by at least three witnesses (who must depose) in the presence of the Brahmana (appointed by) the king.
Yajnavalkya seems to have accepted that the number of witnesses to be examined should be three. The case is referred to the constitution bench presided over by the Brahmana presumably because the creditor has produced damning witnesses (three in number) but yet has not proved the guilt of the debtor.
The civil administrator is not convinced that he may safely conclude that the debtor is guilty and has to be penalized. The existing rules have convicted the debtor but there may yet be no sound case against him. A jurist alone can go deeper and find out the facts and decide correctly. This verse indicates that for all his piety and impartiality, the civil administrator of the rural areas who was unattached to families and communities and was a free man (and perhaps was a local saint) was not competent to be a judge. Yet as the head of the local state he stood by the chief of the judiciary.
CIVIL LAW AND WITNESSES
(8-61 to 108)
Manusmrti offers to statewhat sort of men should be made witnesses in civil (vyavahara) suits (karya) by wealthy men (dhani) and how they (the witnesses) should tell the truth (rtam). (8-61) Jones translated it as: What sort of witnesses must be produced by creditors and others on the trial of causes, I will comprehensively declare; and in what manner those witnesses must give true evidence. As Jones points out both creditors and debtors among the wealthy have to produce the witnesses of the type mentioned hereafter. It is a question of status of the litigants and the witnesses. To which section of the larger society did they belong?
The editor uses the term, rtam rather than satyam, truth. It might imply that they were not required to affirm on oath and their words were believed as they belonged to a higher social status though they did not belong to that section of the larger society that had taken the newly prescribed pledge to abide by truth (satyavrata).
In other words they were plutocrats of the frontier society that still stood by the laws of nature, Rta, which proclaimed that none would of his own accord do anything that would harm himself though everyone would pursue his own interests more than anything else. This was commercial and economic culture (artha).
Jha translates the next verse (8-62) as: Householders (grhina), men with sons (putrina), respectable natives (maula) and men of the Kshatriya, Vaisya and Shudra castes are competent to act as witnesses when cited by suitors; and not any and every person, except in emergencies. The text does not use the term jati or varna. It states that the witness should be born to a Kshatriya or Vaisya or Shudra woman.
Jones translated it as: Married housekeepers, men with male issue, inhabitants of the same district, either of the military, the commercial or the servile class are competent, when called by the party to give their evidence; not any persons indiscriminately, except in such cases of urgency as will soon be mentioned. Burnell translated it as: Householders, men with sons, men of (ancient) stock, whether of Kshatriya or Vaisya or Shudra caste, when called upon by the creditor, may bear witness (in court); not, however, any one at random, except in case of necessity.
The later commentators are noticed to be worried about the impact of these rules on the society of their own times. They have not paid attention to the issue of the relevance of these rules to the times when Manava Dharmasastra was first drafted.The system of four classes (varnas) and four stages of life (asramas) had just been introduced when the civil law proposed by this code too was introduced.
Formal education was compulsory for the Brahmans and optional for Kshatriyas and Vaisyas but was not available to the Shudras. But professional or vocational education was obligatory for all. The Brahmans stood apart from the rest of the society and away from mundane activities. Civil law was not relevant to their lives. The students, Brahmacharis, and the monks, Sanyasis, and so too, the independent senior citizens who had retired to their forest resorts (vanaprasthas) were not involved in these activities and could not be sued or called as witnesses.
All householders who were owners of property and earners could be sued or be party or witnesses to economic transactions. Men who were themselves not householders but were dependent on their sons, that is,vanaprasthas (those who had moved to their forest abodes) could not be sued but could be witnesses to economic deals. Women could not be party to any deal or be asked to appear as witnesses. Here the ways of life of the elite are to be kept in mind.(This privilege was given to all the four social classes.) But their sons could be so on their behalf after they lost their husbands. While fathers were alive sons could not be owners of property or be witnesses. These restrictions had to be observed.
Only when these eligible witnesses were not at hand others could be asked to sign the deed or stay in as witnesses. Those were times when all the four classes had equal civil rights as Aryas. The issue of solvency of the witness was not raised. It was relevant only for the parties to the deed. The serfs, Dasas, could not be witnesses but not other workers, Shudras, who were Aryas. The interpretation that the term kshattra-yoni is to be construed as those of whom the Kshatriya is the yoni or origin is not convincing. It attempts to grant some of the powerful samkaravarnas (mixed classes) a right to be called in with a duty to be present as witnesses.
Jha translates the next verse (8-63) as: In all lawsuits (karya) trustworthy men of all the castes (varnas), fully conversant with morality (sarvadharmavid) and free from avarice (alubdha) should be made witnesses; the reverse of this should be avoided. Buhler translated it as: Trustworthy men of all the (four) castes (varna) may be made witnesses in lawsuits, (men) who know (their) whole duty, and are free from covetousness; but let him eject those (of an) opposite (character).
Jones read it as: Just and sensible men of all the four classes may be witnesses on trials; men who know their whole duty and are free from covetousness; but men of opposite character the judge must reject. Burnell read it as: Worthy persons of all the castes may be made witnesses in cases (at court), those conversant with all (kinds of) duty and free from covetousness; but one should avoid (witnesses) of an opposite nature.
The earlier practice of describing varna as class was given up later by the Indologists who used the term caste indiscriminately to refer to both jati and varna. It was a shrewd and silent attempt to introduce and perpetuate casteism. Hindu Law before 1840s did not countenance this perfidy. Men of any of the four classes could be called in as witnesses.
The judge did not reject any one only because he belonged to a lower social or economic class. But he insisted that the witness should be conversant with the rights and duties (dharma) of all classes (varnas), communities (jatis), clans (kulas), regions (desas) and vocational groups (srenis). Not many would have been qualified to become witnesses. The witnesses should not fall to the lure of wealth. To find out who is honest is difficult; but it is easy to detect a liar. The latter had to be rejected.
Jha reads the next verse (8-64) as: Neither interested persons nor relations, nor helpers nor enemies, nor person of proved corruption nor those afflicted with disease nor the corrupted should be made witnesses. Buhlers translation is more precise. He reads: Those must not be made (witnesses) who have an interest in the suit (arthasambandhi), nor familiar friends (apta), companions (sahaya) and enemies (of the parties) (vairi), nor men formerly convicted of perjury (drshtadosha) nor persons suffering under (severe) illness (vyadhi) or those tainted (dushita) (by mortal sin).
Burnell presents the translation: Neither persons (interested) in the trial, nor friends nor companions, nor enemies, nor (such as) have had sins (formerly) exposed, nor those distressed by illness, nor those (who are) blameworthy should be allowed to serve (as witnesses). Dushita cannot be associated with sin; they were persons who had been punished earlier by the state (king) and placed under black list. Sahaya would mean assistants. Arthasambandhi would refer to business associates.
The civil administrator (nrpati) cannot be made a witness. [The king (raja) could not be sued against nor could he sue any citizen. He was kept out of the civil court as he reserved the right to give the final judgment. But the nrpati was exempted only from being a witness.] Artisans (karuka), artistes (kusilava), the Vedic scholars (Srotriya) and monks who had dissociated themselves from sexual life were not to be called in as witnesses.
Artisans and artistes were not primary residents of the janapada and were mostly mobile groups. They were not treated as trustworthy. Art tried to make the unreal appear like the real and deceived the observer. This prejudice has been universal and continues to this day in several parts of the world. The Vedic scholars were to be kept out of involvement in purely economic disputes and so too the monks. (8-65) [This verse indirectly admits that all economic disputes (vyavahara) have their origin in marriage. Giving up sexual union is expected to free the individual from his or her personal interest in economic affairs including personal or family property.]
Buhler translates the next verse (8-66) as: Nor one wholly dependent (adhyadhina) nor one of bad fame (vaktavya) nor a Dasyu nor one who follows forbidden occupations (vikarmakrt) nor one (man alone) nor an aged (man) (vrddha) nor an infant (sishu) nor a man of the lowest castes (antya) nor one deficient in organs of sense (vikalendriya).
Jones read it as: Nor one wholly dependent; nor one of bad fame; nor one who follows a cruel occupation; nor one who works openly against the law; nor a decrepit old man; nor a child; nor one man (eka) only unless he be distinguished for virtue; nor a wretch of the lowest mixed class; nor one who has lost the organs of senses. Burnell translates this verse as: Nor a slave nor a notorious man, nor a Dasyu, nor one who does what he ought not, nor an old man, nor a child, nor one man (alone), nor a man of the lowest (classes), nor a man defective in the organs of sense. The word, adhyadhina, cannot be construed as slave.
Jha follows Medhatithi and reads vaktavya as a student who is entirely under the influence of his teacher. Buhler held that Medhatithi meant by it as one afflicted with leprosy or some other bad disease. Witnesses must be able to speak out fearlessly. Those who were totally dependent on their masters or were their mercenaries (dasyus) were ruled out. Arsonists, robbers, etc. could not be called in as witnesses as they were criminals though they might have escaped punishment. Medhatithi later ruled out as witnesses, men who were engaged in vocations not assigned to their classes. Three witnesses had to be produced by the plaintiff. It is not likely that a deal with only one agreed witness was declared invalid.
Eka must have meant one who had opted to live alone in total solitude. He could not be brought to court; and the judge should not be asked to meet him and find out the truth about the deal entered into in his presence but not noticed by him. In socio-economic disputes such persons who had opted for loneliness were not to be dragged. 'Antya meant those who lived near crematoria and who were known to be indifferent to all human feelings having been hardened by daily scenes of burning corpses. Civil disputes and trials of criminal offences had to be marked by impartiality and humanity. It has to be justice tinged with mercy. It is not advisable to translate antya as lowest castes. No one was kept out because of his community or class.
Whenever the expression all varnas is mentioned we should read it to mean all the four basic varnas and all the 'samkaravarnas. The interpretation that antya meant barbara, chandala etc. is not convincing though chandalas too were forced to live near crematoria.
The judge was asked not to admit (as valid evidence the statement of) an extremely grieved man (artthi) (one in distress) or one intoxicated or a madman or one tormented by hunger and thirst or one oppressed by fatigue or one tormented by lust or a wrathful man or a thief. (8-67)
While there was no bar against any class (varna), it was recommended that women (stris) should give evidence only for women and dvijas (twice-born) for colleagues who were dvijas and pious Shudras for Shudras and men of the lowest classes (antyas) (living near crematoria) for similar antyas. (8-68)
This must have been a later interpolation yielding to the argument that men of lower ranks could not give evidence fearlessly against men of higher ranks and women too would be afraid of giving evidence against men. It may be noted that the term, stri, meant a married woman-member of a family. She was not the head of the family and had to abide by the directions, which the male head of the family, purusha, gave to its members.She was not to be exposed to socio-economic disputes.The free woman, nari, who was not a member of a family, was not debarred from giving evidence against men. [She might be a married woman or not.]
Inequality is present in all societies and the judiciary instead of closing its eyes to it and giving unjust verdicts preferred to call upon the litigants to depend on and produce equals as witnesses and not resort to coerce the weak to stand as (false) witnesses.All deals had to be in the open and during the day. But often these took place behind doors in closed rooms or in forests on the outskirts. Any person whosoever who had personal knowledge (of an act committed) in the interior apartments (of a house) or in a forest or of (a crime causing) loss of life might give evidence between the parties. (8-69)
Jha reads sarirasu-apichatyaya as injury to the body rather than as loss of life. He points out that some have amended the text as apvatyaya to mean: when the entire structure of the case is going to fall through for wanted of a reliable witness of the permitted categories, and there is no chance of its being rehabilitated, then there should be no restriction as to the caste or sex or age or rank or relationship and the like. In the event of (proper witnesses) not forthcoming, evidence may be given by a woman (stri), by a minor, by an aged person, by a pupil, by a relative, by a serf (dasa) or by a servant (bhrtaka). (8-70)
Burnell translates this verse as: (Testimony) may be given, when (other witnesses) are not forthcoming, even by a woman, a child, or an old man; or by a pupil, a relative, a slave or a servant. The term, dasa, is not to be interpreted as slave.Even dasas were paid employees but were bonded labourers while thebhrtaka was a wage earner. It is important that the facts are known before the verdict is given.
Many jurists had reservations about granting this permission, as it would become a blanket permission to create unequal deals and exploitation of the man in distress by the shrewd usurer.
In the event of minors, aged and diseased persons deposing falsely in their evidence, the judge should make up his mind regarding the speech being irregular and so in the case of men with disordered minds. (8-71) The judge is permitted not to examine the character of the witnesses in the case of criminal cases like violence, theft, adultery and oral and physical assault. He should not discard the statements of these witnesses. Not only the plaintiffs and the respondents but also the witnesses to these crimes belonged to the subaltern. Justice could not be denied to its members. (8-72)
On a conflict among witnesses, the senior civil administrator (naradhipa) in charge of the free men (naras who were not bound by the codes of any clan or community or vocational corporation) shall accept the stand of the majority (bahutva) of the witnesses; in the case of equality (of number) (sama), that of those possessed of superior qualifications (gunautkrshta); in the case of conflict between equally qualified witnesses, that of the best among the twice-born (dvijottama). (8-73)
Though the original editors did not state so, the Brahmans of the later times claimed that their considered opinion should be given greater weight than that of the ruling class of Kshatriyas and that of the rich Vaisyas. The witnesses were as important as the independent assessors or members of the jury or of the bench itself. But where all the witnesses gave the same evidence, the assessors and the jury could not overrule it. Vyavahara or the code of settling economic disputes was already in force when the four-varnas scheme was introduced.
Those who excelled in sattva guna, gentleness, and were educated, deserved and were given more respect than others. Of these those who had been formally accepted in the class of Brahmans were given greater respect than the others. Evidence based upon what is directly seen and is heard is admissible; and a witness, telling the truth (satya) in such cases, does not fall off (na hiyata) from socio-religious (dharma) or politico-economic status (artha). (8-74)
Burnell translated this verse as: Testimony based on seeing as an eyewitness, or on hearing, is to be received; and a witness who speaks the truth on such an occasion is deprived neither the reward of virtue nor of his goods). This interpretation is unsatisfactory. Those who perjured were bound to lose their status, it was warned. The court offered to protect the status, social as well as economic, of those who boldly told the truth.
Jha translates the next verse (8-75) as: A witness asserting in an assembly (samsad) of noble men (Aryas) anything apart from what he has seen and heard falls downward into hell (naraka) after death (pretya) and becomes shut out from heaven (svarga). Burnell presents it as: A witness who in an assembly of honourable men declares anything contrary to what he has seen or heard goes headlong to hell and after passing (this) is (still) deprived of heaven.
Most of the economic disputes (vyavahara) were among the landlords and traders who belonged to the class ofAryas (Vaisyas). They were expected to produce witnesses belonging to their own ranks. At times they produced witnesses who belonged to the stratum of free men, naras, and these were warned that if they were found to perjure they would lose the right to be free earners, naras, and consigned to the ghetto, naraka. If they boldly stood by truth they could become owners of personal property, svas, and admitted even to the community of aristocrats whose social world was known as svarga.
Even though not put down as a witness, if one happens to see or hear anything in regard to a case, when he comes to be questioned about it, he should speak out exactly as he has seen or heard it. (8-76) It may be noted that most of the transactions were oral and were not documented. The civil administrator had to deal only with such transactions. The documents were kept with state officials whenever lands were granted or leased to individuals for services rendered to the king and the state. These Rajasasanas, royal edicts were proclaimed in public and could not be questioned by anyone.
The assumption that all documents pertaining to private transactions must be attested by at least three eligible persons has to be dealt with cautiously. Written documents came to be insisted on only far later when a large number of persons in the janapadas had become literate. Even persons who were not a party to the written deed could appear before the assembly and say what they knew about it. This verse seems to be a later addition to the previous provisos.
Jha translates the next verse as: A single man (eka), free from covetousness, may be a witness, but not many women (stris) though pure (shoucha), because the understanding (buddhi) of women is not steady (sthira), nor other men who are tainted with defects.(8-77) Stri indicates a housewife belonging to a respectable family. A man could have many wives and all of them might stand witness to what he had done, that is, to his will expressed orally before his death. But this deposition could be overruled in favour of the version of his unmarried brother who could not become the head of the family or have claim over the property of his deceased brother.
Bachelors and widowers were not entitled to be owners of property or rulers or heads of joint families. They belonged to the cadre of naras, free men. Of course men who pursued tainted vocations or had bad habits like gambling were not trusted. Burnell translates this verse as: "Now one man (alone) may be a witness (if) free from covetousness; but not (even) several women, although (they may be) pure, on account of the lack of reliability of womans mind; and also other men who are involved in sins (may not be witnesses).
Buhler translated this verse as: One man who is free from covetousness may be (accepted as) witness; but not even many pure women because the understanding of females is apt to waver, not even many other men, who are tainted with sin. Jones translated it as: One man untainted with covetousness and other vices may in some cases be the sole witness and will have more weight than many women because female understandings are apt to waver; or than many other men who have been tarnished with crimes. This is not an affront to women. Manusmrti did not say, Frailty thy name is woman.
Here the reference is to wives who had been abandoned by their husband as he took to asceticism (sanyasa) or who had become widows but have not remarried. These women might not remarry lest the property should pass into the hands of other men leaving the brother of their husband who was single high and dry. The latter could not normally be called as a witness. But in this extraordinary situation he may be required to depose. Of course men guilty of prohibited conduct should not be accepted as witnesses. It is the spirit of the law that should prevail and not the letter of the law.
Jha translates the next verse (8-78) as: What the witnesses state naturally, in relation to the case, should be accepted; apart from this what they state from considerations of righteousness (dharma), is useless. Jones read it as: What witnesses declared naturally or without bias must be received on trials; but what they improperly say, from some unnatural bent is inapplicable to the purposes of justice.
Buhler read it as: What witnesses declare quite naturally (svabhava) that must be received on trials (vyavaharikam); (depositions) differing from that, which they make improperly (aparthaka) are worthless for (the purposes of) justice (dharma).
Jha takes pains to defend the interpretation given by Medhatithi though it is jarring. The witness in an economic dispute that has been referred to a judge is admonished to speak in his natural way, in accordance with his vocation and social status and without pretensions and artificiality. He need not claim to be interested in protecting justice and morality (dharma) and to be disinterested or speaking the truth though it is likely to affect his own interests adversely (apa-arthakam).
A witness is expected to be sincere. It was the duty of the bench to render justice after due investigation and examination of witnesses. The witness should not arrogate to himself this role. He is gently admonished.
Jones translates the verse (8-79) as: The witnesses being assembled in the middle of the courtroom, in the presence of the plaintiff and the defendant, let the judge examine them, after having addressed them all together in the following manner. He has to exhort them kindly.The judge was in fact a conciliator (santvaya). What was before him did not qualify to be called tort.
The pradvivaka could only interrogate and find out the truth. (He was an officer appointed by the court to cross-examine the witnesses.) He should not become an inquisitor.He was hearing the dispute in the open court. It was a commission of inquiry and was not vested with the power to punish the offender. It could close the chapter if the two parties agreed. He was not to assume to himself any authority more than this.
He directs the witnesses to declare before the assembly all that they know to have been mutually transacted between the two men (plaintiff and defendant); to declare all that is in accordance with the truth (satya) for they were witnesses. (8-80) Burnell reads this verse as: Whatever you know has been done in this affair by one or the other of these two parties, declare it all in accordance with the truth, as it is here your (duty) to give testimony.
The judge advises them: The witness, telling the truth in his evidence, attains the irreproachable (anindita) region (loka), also unsurpassable (anuttama) fame (kirti); such speech (vak) is honoured (poojita) by Brahma himself. (Jha) (8-81) Honest and bold witnesses deserve to be admitted to higher social groups and not to be kept back as commoners. Burnell notes that according to Kulluka, the worlds of Brahma and the other divinities are meant here. Medhatithi suggests that loka may mean jati.
The irreproachable witnesses become famous for helping the judiciary to come to a correct conclusion and would be respected by the judge presiding over the constitution bench. Such judge who was assisted by scholars, vipras, was termed Brahma. The interrogator would be referring the case to this higher bench if he could not make the two parties arrive at a compromise and if the witnesses were equally divided.
Jha translates the next verse (8-82) as: Stating the untruth (anrta) in his evidence, he becomes firmly bound in Varunas fetters (parsa), helpless (vivasa) during a hundred (satatam) births (ajati). One should therefore give true (rta) evidence. Buhler translates it as: He who gives false evidence is firmly bound by Varunas fetters; helpless during one hundred existences; let (men therefore) give true evidence.
Jones translated it as: The witness who speaks falsely shall be fast bound under water in the snaky cords of Varuna and be wholly deprived of power to escape torment during a hundred transmigrations; let mankind therefore give no false testimony. Burnell reads this verse as: One who in testifying speaks an untruth is, all unwilling, bound fast by the cords of Varuna till a hundred births are passed. Therefore one should declare true testimony.
The medieval commentators on whom the 19th and 20th century Indologists dependedhad lost sight of several aspects of Vedic social polity. Varuna was the ombudsman in that polity. He was also in charge of the civil prison and kept under his custody those found guilty of defaulting on their civil and social debts. It was believed that this official of the eight-member ministry, who was in charge of the marshy areas and islands dragged these debtors to his prison there and kept them until they discharged their debts.
Those witnesses who did not abide by the laws of the Vedic era that were based on Rta (rather than on Satya or truth and Dharma or balanced, just and moral social laws) and spoke untruth flouting their own interests which they were expected to pursue under the laws of Rta were bound to suffer.
The laws based on Rta defended pursuit of enlightened self-interest and humanitarianism while the laws based on Satya were rigid and called for adherence to truth at all costs and at all times. The latter laws dominated during the later Vedic era. By the end of the Vedic era both Rta and Satya receded yielding to Dharma. Dharma promoted social laws that were based on consensus and refused to be dogmatic like Satya or permissive like Rta. Persons who follow dharma can never take a fundamentalist stand on any issue. Religion on the other hand refuses to tolerate any position that is not in accord with its stated position.
The interpretations presented by modern writers as having been given by Medhatithi and Kulluka reveal only their non-acquaintance with the evolution of ancient Indian social polity. The editors of Manusmrti were closer to the Vedic era and they knew the correct role of Varuna. Varuna was merciless. Varuna represented a social cadre that had the traits of Gandharvas, the adventurous and bold intellectuals and also of the authoritarian feudal lords, Asuras. Both the cadres were merged in the four-fold class or varna system by the end of the Vedic era and absorbed mainly in the Kshatriya varna. [It is wrong to liken him to Neptune.] The concept of rebirth might not have been in vogue during the Vedic times. The expression, satatamajati, might have been a reference to a hundred appeals for release and second chance to lead a good life.
The Upanishads have asserted that the socio-legal systems based on the two concepts, satya and dharma, are identical and are not contradictory to each other.Though the editors of Manusmrti were lenient and liberal and not as dogmatic as the advocates of the pledge to abide by truth (satyavrata), were, they never abandoned the concept of satya. They did not exempt members of any social class, varna, whether one of the four basic varnas or one of the many samkaravarnas (mixed classes) from the legal obligation to abide by truth.
In the earlier system only the dvijas, the twice born, Brahmans, Kshatriyas and Vaisyas, were bound to take this pledge and enjoy the exemptions that this pledge offered. It presumed that one was truthful and honest unless he was proved to have broken this pledge knowingly. It did not give such an exemption to the nasatyas who had promised to abjure perjury but had not taken the positive vow to speak only the truth. While the three higher classes were eligible to become satyavratas, the fourth class, Shudras, could be only nasatyas.
Manusmrti placed all the four varnas and the mixed classes, samkaravarnas whose members were born to Kshatriya, Vaisya or Shudra women on par while examining the witnesses. Only those who were born to Brahmana women by men of other classes (particularly to Shudra men) were condemned as Chandalas and outcast to the social periphery and refused the rights other classes enjoyed.
This background is to be appreciated as we note the next verse (8-83), which Jha translates as: By truth (satya) is the witness purified (puyata); by truth (satya) does merit (dharma) grow (vardhata); hence the truth (satya) should be spoken (vaktavya) by witnesses (sakshi) of all castes (sarvavarna). Jones translated varna as class. Buhler read it as caste.
[The concept of caste came into vogue only after the end of the 18th century.] Burnell translated this verse as: Through truth is the witness made pure; through truth is right increased; therefore among all the castes truth, indeed, should be spoken by the witnesses.
But not all individuals who appeared as witnesses were members of social groups and classes. Many were free men who had walked out of their families, clans and communities and hence out of their class also, whether a basic varna or a samkaravarna. The free man, nr or nara, was told that it was not necessary for him to identify himself as a member of a specific class when he climbed the witness box.
A nara could speak out as an individual, as an atma, and not as a member of a particular social body. Jha translates the next verse (8-84) as: The soul (atma) is the souls witness; and the soul is the souls refuge (gati); disregard not (mavamstha) your soul (sva atma); the best witness (uttamam sakshi) of man (nrna).
Buhler translated it as: The Soul itself is the witness of the Soul, and the Soul is the refuge of the Soul; despise not thy own Soul, the supreme witness of men. Jones read it as: The soul itself is its own witness; the soul itself is its own refuge; offend not thy conscious soul; the supreme internal witness of men. Burnell read it as: For self alone is the witness for self, and self is likewise the refuge of self. Despise not, therefore, (your) own self, the highest witness of men.
The medieval commentators have not dwelt on this verse raising the doubt that it might have been a recent interpolation. It is more than an exhortation to all witnesses to be honest to themselves and to their inner conscience while deposing before the judges.The best among the witnesses was one who was not bound by clan or communal loyalties and could speak out the truth fearlessly and was guided by his conscience.
Jha translates the next verse (8-85) as: The sinners (papakrta) indeed think (manyanta) that no one sees us; but the gods (devas) see (prapasya) them, as also their own (sva) inner (antara) personality (purusha). Buhler translated it as: The wicked indeed say in their hearts, nobody sees us; but the gods distinctly see them and the male within their breasts. He had no clear grasp of the intent of this verse. Jones read it as: The sinful have said in their hearts, None sees us. Yes, the gods distinctly see them; and so does the spirit within their breasts. Burnell translated it as: Verily, the wicked think, No one sees us, but the gods are looking at them, and also their man within. These translations are imprecise.
The free men (nrs), who do not acknowledge their obligations to the clans and classes that they might have been associated with or assigned to and who are free to act according to their conscience are however warned against committing sins in privacy.Many of them manned the lower ranks of the bureaucracy. They are being constantly observed by devas, (gods, in common parlance). The nobles, devas, who have withdrawn from public administration and even from administration of justice have not ceased to observe what the commonalty are doing. They keep a watch on the secret activities of the sinners though these pertain to deeds that are out of the purview of the judiciary set up for trying economic disputes.
The nobles (devas) are alert about their personal (sva) status as social leaders, purushas, which requires them to step in to discipline those who stray from the lines unnoticed by the organized society. The 'naras, the free men belonged to the lower ranks of the cadre of Gandharvas. The dynamic social leaders, purushas, who too belonged to the privileged gandharva cadres, were not bound by the discipline imposed by clans and communities on their respective members.
Such purushas may lead the community from within as participant members, or from the front or from the sidelines. The nobles, devas, led from the sidelines but restricted their activities to supervision and regulation of the private activities of the free men (nrs). This, the cultural aristocrats, devas, did on their initiative. They had a right to attend all meetings of the sabha and be duly honoured. They could not be cited as witnesses or be sued as a party to any deal.
The free men, naras, who are free from sins, are able to rise to the ranks of participant leaders, purushas, while the chiefs of the communities may lead from the front and the aristocrats (devas) may guide well from the sidelines. Most (but not all) of the leaders, purushas, belonged to the organized social work groups of the commonalty. Medhatithi too, it has to be said, had no grasp of this socio-political reality of the times when Manava Dharmasastra was first outlined. He was carried away by the interpretations given by later philosophers and deists.
Jha translates the next verse (8-86) as: Heaven (dhyo), earth (bhumi), water (apa), heart (hrdaya), moon (chandra), sun (arka), fire (agni), death-god (yama), wind (anila), night (ratri), the two twilights (sandhyas), and morality (dharma) know the conduct of all corporeal beings (sarva dehina).
Buhler translated it as: The sky, the earth, the waters, (the male in) the heart, the moon, the sun, the fire, Yama, and the wind, the night, the two twilights, and justice know the conduct of all corporal beings. He refers to the interpretation given by Medhatithi: the male or spirit (purusha) who resides in the human heart clothed with a rudimentary body.
Jones read this verse as: The guardian deities of the firmament, of the earth, of the waters, of the human heart, of the moon, of the sun, and of fire, of punishment after death, of the winds, of night and of both twilights, and of justice, perfectly know the state of all spirits clothed with bodies. Medhatithi and other medieval commentators had lost touch with the Vedic social polity and modern western Indologists have not grasped it.
The middle Vedic core society had two social strata, the nobility and the commonalty, which were referred to as dhyo and prthvi (bhumi). Officials designated as Indra and Aryaman represented these (nobles and landlords) on the eight member administrative body. This core society was visualized as an island surrounded by sea. Varuna represented the people who were dependent on riverine and maritime economy. The term, hrdaya, referred perhaps to the deep mines and the people dependent on them.
Soma (chandra), (the representative of the sober intelligentsia of the forests and mountains) Surya (arka) (the head of the Kshatriya administrators-cum-warriors), Agni (the scholar who was pure and presided over the civil court), Yama (the magistrate who could pronounce even death sentence), and Vayu (who was in charge of the open moors) were other officials on the eight-member ministry of the middle Vedic times.These were not guardian deities. It is wrong to translate dhyo as heaven or sky or as firmament.
These officials were in charge of all organized social and economic groups, sarvadehina. These officials who belonged to the nobility could move about not only during the day and keep in check the likely offenders, but also during the night, at dawn and dusk. They ensured that every one performed his duty (vrta) according to the social and moral code, dharma. Individuals who did not belong to organized bodies were referred to as bhutas. This aspect was lost sight of during the medieval age. These bhutas belonged to the social periphery, a concept indicated by the term twilight.
Jha translates the next verse (8-87) as: In the presence of gods (devas) and Brahmanas, during forenoon, the judge pure (suchi) himself shall ask the twice-born persons (dvijas) who have been purified and are facing either the north or the east to give evidence.
Buhler reads it as: The (judge), being purified, shall ask in the forenoon, the twice-born (witnesses) who (also have been) purified, (and stand) facing the north or the east, to give true (rta) evidence (sakshi) in the presence of (images of) gods and of Brahmans. Burnell translated this verse as: In the presence of the gods and the Brahmans, (the king), being pure, should early in the day call upon the twice-born, (being also) pure, to speak the truth, after they have turned their faces toward the north or the east.
These verses belonged to the middle Vedic period when idol worship had not yet come into vogue. Devas or nobles occupied the western portion of the hall. Brahmans who were jurists, experts in Atharvaveda, sat on the eastern side. The witnesses who belonged to the three upper classes could address either of them.It was a period when law was based on the principles of Rta rather than on the tenets of Satya. The practice of taking oath had not yet come into vogue. The next two verses seem to be a considerably later interpolation. In verse 8-87 there is no presiding officer. It is the open assembly that the witness is addressing.
But in the next verse, it is a court where class distinctions have come to be honoured. The presiding officer asks the Brahman to speak while he asks the Parthiva to speak the truth satya. The Brahman was a jurist and scholar in Vedas and he was not expected to speak anything but the truth. [The Brahman here is not visualized as a teacher or as a priest.] But the ruler of the rural areas, parthiva, might not be ready to tell all the truth to the assembly. He is directed to speak the truth in that assembly of nobles and scholars, the constitutional body that was superior to the king and the ministry. [He was not necessarily a Kshatriya or a Rajanya by birth.]
The Vaisyas who owned property were cautioned that if they gave false evidence or suppressed the truth they were likely to lose their cattle, agricultural lands and gold, the three types of property on which their livelihood depended. The Vaisyas might not have all taken the pledge to abide by truth.
The Shudras who were workers and had no property had to be cautioned against the guilt (pataka) that they were likely to incur by not telling the truth. (8-88) [Manusmrti has not called for taking oath on any holy book or in the name of any God or even in the name of Isvara.]
This pertained to a stage when the four-fold varna system had come into vogue among the commonalty but the Rajanyas who belonged to the aristocracy were outside it. The new rulers were essentially peasants. The parthivas belonged to the commonalty (Vis). Medieval and later commentators have failed to take note of the implications of this shift in social statuses.
The Shudras, workers who had no personal property that could be attached on charges of perjury, were told:Whatever regions (lokas) have been assigned to the slayer of the Brahmana, to the murderer of women and children, to the betrayer of friends and to the ingrate, those same shall be thine if thou speakest falsely. Whatever merit, good man (bhadra), you may have acquired since your birth would go to the dogs if you speak falsely. (Jha) (8-89,90)
These admonitions could have been given to any gentleman (bhadra) and not necessarily to a Shudraworker. The Brahmana was visualized as a pious and simple man who had no axe to grind and who could not have harmed the witness or any one else and who like the women and children could not defend himself. It was cowardice and inhuman to assault and kill them. Such slayers deserved to be exiled or jailed or sent to the galleys if they were not to be put to death. The Shudra too was respected. He was not treated with contempt by the court. The reader should not allow himself to be misguided and carried away by the stereotypes floated by the Western Indologists.
The witness is told: You think yourself, blessed man (kalyana), that I (aham) am (asmi) alone (eka); but there ever (nitya) sits in your heart (hrdaya) the silent (muni) watcher (ikshita) of virtue (punya) and vice (papa). (Jha) (8-91)
Even the lonely man, bachelor or widower, who has no family obligations and who has been a silent witness to the suspicious deed cannot claim to be innocent. The conscience deep in him had been watching his role in the good or bad deed that lacked credible witnesses. The silent sage (muni) could not claim exemption from being called as a witness and even so the bachelor or widower is not secure from being summoned before the court to depose. What is conscience? The later editors of Manusmrti draw attention to the verdict given on this by Manu Vaivasvata.
Jha translates the verse (8-92) as: The God (deva) Yama, the son of Vivasvat, who sits in your heart (hrda), if you have no quarrel with him, you need not visit the Ganga, nor the Kurus. Buhler translated it as: If thou art not at variance with that divine Yama, the son of Vivasvat, who dwells in thy heart, thou needest neither visit the Ganges nor the (land of the) Kurus.
Jones translated it as: If thou beest not at variance, by speaking falsely, with Yama or the subduer of all; with Vaivasvata, or the punisher, with that great divinity who dwells in thy breast, go not on a pilgrimage to the river Ganga nor to the plains of Kuru, for thou hast no need of expiation. Burnell interprets it as: It is the god Yama, the son of Vivasvan, who resides in thy heart. If you are not at variance with him, go not to the Ganges and Kurus.
The legends have visualized Yama as a son of PrajapatiVivasvan. But the status of the son of Vivasvan was given to the seventh Manu. In his scheme, a person who acted according to his conscience need not be afraid that he might have done something prohibited by the magistrate who was designated as Yama and had the status of a noble (deva). But the delinquent could be punished, fined or sent to the prison, whipped or branded or exiled or may be only asked to go to a holy place to do expiation for his sins. Kasi, Prayag and Hardwar on the banks of Ganga became holy places and so too Kurukshetra where the famous battle of Mahabharata was fought.
The later commentators interpret that these pilgrimages would not be necessary if a man gave evidence according to his conscience. This was a positive exhortation to those who were afraid to tell the truth. The sages of the Ganga-Yamuna basin were held to be the authorities on the rules of exigency. This basin came to the fore after the disappearance of River Sarasvati. The earlier Brahmarshis including the first Manu, Svayambhuva belonged to the Sarasvati basin. Vaivasvata had his seat at Gaya in the eastern Ganga basin. Kasi and Mithila in this area became the centres of learning and valour after the Ganga-Yamuna basin, which included the land of the Kurus, began to decay. The editors of this code recognize this aspect. They did not deal with the issue of going to holy places to get free from the effects of sins committed. The tirthas were centres of learning where the deviant could attend reorientation courses and become fit to resume his post and duties after having been relieved from it for a short duration.
But if one gave false (anrta) evidence he would be stripped and his head shorn, denied food and water and made a blind beggar begging at the door of his enemy(8-93). These punishments were meted out during the middle Vedic period when laws based on Rta prevailed.Headlong, in blind darkness shall the sinner (kilbishi) fall into hell (naraka) who, on being interrogated in the course of a judicial investigation (dharmaniscaya), answers the question falsely. (8-94) This warning was given to those who kept silent in the beginning but on persistent questioning spoke lies.
He (nara, a free man) who having entered the court (sabha) bears testimony to what is contrary to facts and what he has not seen swallows fish along with the bones just like a blind man. The pre-Vaivasvata period was noted for matsya-nyaya, the law of the fishes, which meant the larger fish swallowing the smaller and growing, the law that might is right. That law is amended to emphasize that the false witness would be tortured with fish-bones forced down his throat. The free individual, nara, would be denied food and water and even blinded and fed fish and bones and tormented. Only an honest man could remain a free man (nara). Fundamental rights are meant only for honest gentlemen. (8-95)
Jha translates the next verse (8-96) as: The gods (devas) do not regard any (anya) person (purusha) in this world (loka) as superior (sreya) to him whom his knowing soul (kshetrajna) does not distrust (atisanka) while he (vidvan) is speaking (vadata). Buhler translated it as: The gods are acquainted with no better man in this world than him, of whom his conscious soul has no distrust when he gives evidence.
Jones read it as: The gods are acquainted with no better mortal in this world than the man of whom the intelligent spirit which pervades his body has no distrust when he prepares to give evidence. Burnell reads it as: The gods know no other better man in the world than he of whom his own wise soul has no apprehension while he is speaking. It is wrong to interpret the term, devas, as gods. They were members of the cultural aristocracy. Any worker or official who knew his field of work very well was referred to as Kshetrajna.
The nobles who adorn the sabha, the hall where they and the learned men have assembled to hear the case and arrive at a just finding, consider that social leader, purusha, as the best in this social world (loka) of commoners who is a scholar, vidvan and knows his field of activity thoroughly. He is a kshetrajna. They do not distrust him when he deposes on the matter that he knows better than any one else. In the previous verses the reliability of the free man, nara, was doubted. Here the nobles respect the social leader, purusha, who too is not under the influence of clans and communities but is a scholar and expert.
The commentators of the medieval times were misled by the mysticism shrouding the contents of the Upanishads. Unless a rigorously rational approach is adopted we would not be able to arrive at a proper appraisal of the ancient Indian society. It is advisable to keep in view the stand taken by Krshna on the traits of a purusha and those of a kshetrajna.
Listen now, gentle friend (saumya) in due order, how many relatives (bandhava), by number, one destroys by giving false (anrta) evidence. (8-97) He destroys five by false (anrta) evidence regarding (other) ordinary domestic animals (pasu), ten regarding cows (gava) (kine), a hundred regarding horses (asva), a thousand regarding capable men (purushas) (8-98). So many kinsmen of the false witness might be put to death, it was warned. Deposing falsely regarding gold, he kills the born and the unborn; by false evidence regarding land, he kills all. Never tell a lie (anrta) regarding land. (8-99)
The early state gave more importance to its territory (that is, to agriculturists) than to gold (traders), and to gold more than to its trained manpower and leadership (purushas), to leadership more than to cavalry, to cavalry more than to its cattle (cowherds), to cattle more than to other animals (shepherds). The ordinary soldiers were referred to as naras, and their captains as purushas. A horse-borne archer or warrior was valued and paid more than a foot soldier but less than a captain. Even a captain got a wage less than what an agriculturist did.
This caution is given to the kings men. Any false statement about water (apa), lake, tank, well or river was on par with one about agricultural land for all land and water ultimately belonged to the community or to the state. The editors of Manusmrti were drawing attention to the provisions of laws pertaining to economic offences that were in force since the early and medieval Vedic times. Laws based on rta rather than those based on satya or dharma, were in force then.
The witness had to reveal the truth about violation by housewives of the rules regarding chastity and could not claim to be ignorant of it as it took place behind closed doors. The claim that one was entitled to have sex with his brothers wife, maithunadharma, was not acceptable to the court. According to the apsara culture of the pre-dharmasastra times, polyandry was valid even as the gandharva practice of polygyny or polygamy was. Every witness was required to tell the truth about how one came in possession of pearls and costly stones. The witness was cautioned against perjury. (8-100,101) Burnell translates the verse (100) as; They say (false testimony) in regard to water (apa) is like (that in regard to) land (bhumi); so also (is false testimony) in regard to carnal pleasures, in regard to gems (produced by) water, and all gems made of stone.
The editors of Manusmrti were eager to enforce the social practices prevalent among the commoners (manushyas) of the agricultural lands (bhumi, prthvi) on those who depended on economic activities like fishing (and diving) and mining pertaining to coastal and mountainous areas. Burnell and other commentators of the 19th and early 20th centuries had failed to arrive at a proper appraisal of the transition from the pre-varna Vedic social order to that of the post-Vedic social system introduced by the Manava Dharmasastra.
The manual asked the judges and administrators to note that Brahmans who were engaged in tending cattle (goraksha) and trade or were artisans or artistes (karukusilava) or couriers (preshya) or usurers (vardhushika) were to be treated on par with Shudras as witnesses. Brahmans could be only scholars, teachers and priests. (8-102) This interdict was intended to stop the decadence of the intelligentsia under economic strain. This later interpolation was an attempt to keep the intellectuals, the class of Brahmans away from economic activities and especially away from the proletariat. Brahmans of the earlier times had not kept themselves away from these activities and vocations.
Jha translates the next verse (8-103) as: In some cases, a man (nara), who though knowing the truth deposes otherwise, through piety, does not fall off from heaven (svarga). This is a divine (daivaloka) assertion (vacha) that they reproduce (vadanti). Buhler translated it as: In (some) cases a man who, though knowing (the facts to be) different, gives such (false evidence) from a pious motive, does not lose heaven; for such (falsehood) is preferable to the truth.
Jones read it as: In some cases, a giver of false evidence from a pious motive, even though he know the truth, shall not lose a seat in heaven; such evidence, wise men call the speech of gods. Burnell read it as: A man who, knowing the matter is not as he states it, makes a false declaration in a case (purely) out of consideration for (what he thinks) is right, is not (on that account) shut out from that heavenly world; (on the contrary) they call this the speech of the gods. This atrocious interpretation permits the gods to lie. It is necessary to set the issue raised on the right lines.
In an economic issue (artha), which has also a content of morality and ethics (dharma), stating the facts might not be expedient. So the free man, nara, who has no personal interests and who is not affiliated to any clan or community may prefer to vouch for something that is known to him to be not true. This act would not make him liable for action under the charge of perjury and deprive him of the right to develop his personality and become eligible to be admitted to the company of aristocrats (daivaloka). For he is functioning only as a spokesman of the liberal aristocracy whose members cannot be litigants or witnesses in civil courts.This nara when appearing before the court that hears economic offences is functioning as the representative of a noble, deva.
The aristocrats had their economic interests (artha) and their own social and moral codes (dharma). They spoke out what the judges and the administrators did not know or thought was false. They spoke through these free men, naras. It was the voice of the nobles and not of the gods. [God does not lie. He does not need to lie. He does not make man lie.] Devas were but men and were not infallible. The term, deva, means a noble and the term, nara, means a free man who is not bound by the rules that commoners, manushyas, follow. [We must be precise while translating these terms.]
Jha translates the next verse (8-104) as: Where the telling of the truth would lead to the death of a Shudra, a Vaisya, a Kshatriya or a Brahmana, in that case, falsehood (anrta) should be spoken; as that is preferable to truth (satya). Jones read it as: Whenever the death of a man, who had not been a grievous offender, either of the servile, the commercial, the military or the sacerdotal class, would be occasioned by true evidence, from the known rigour of the king, even though the fault arose from inadvertence or error, falsehood may be spoken; it is even preferable to truth. Burnell translates this verse as: Wherever a truthful declaration would be the death of a Shudra, Vaisya, Kshatriya or Brahman, there falsehood should be spoken, for (in such a case) it is better than truth.
The text mentions the four classes as Shudra, Vis, Kshatra and Vipra, which are to be construed as labourers, commonalty, soldiers-cum-officials and scholars-cum-teachers. [It is not proper to use the terms, Vipra and Brahmana, interchangeably.] It needs to be noted that during the Vedic times, the four social classes of the core society were known as Devas, Vipras, Rajanyas and Vis. This system was anterior to the one mentioned in this verse. The four-fold system, Brahmans, Kshatriyas, Vaisyas and Shudras, was posterior to the system mentioned in this verse. Jones read more than what was necessary.
In order to save an offender from capital punishment, a witness may utter what is anrta, that is, what is against the laws of nature. It is natural for every one to save his skin and fail to come to the help of another. But if one sets aside this tendency and tries to help a guilty person at the cost of his own life, this act should be admired. It is better than adhering to truth (satya) at all costs. The medieval commentators have discussed the implications of this verse at length but have not noticed what the enigma was.
This verse pertained to a stage when the varnaclassification had emerged but the varnashrama dharma, code of rights and duties of the four classes and four stages of life had not yet been crystallized and promulgated. This verse pertained to the period of transition when the commonalty was known as vis and the Shudras were the first to emerge as a distinct class. Neither the commonalty (vis) nor the administrators (kshatra) nor the roving intellectuals (vipras) were then treated as a distinct class (varna) or community (jati).
It was a stage when the early and middle Vedic laws based on Rta had been supplemented by the absolute ethical laws that upheld Satya, speaking truth at all costs and on all occasions as the duty of all the classes whether ordained as dvijas or not. Dharmathat was liberal and adopted a middle path between Rta and Satya had not yet then supplanted them or even supplemented them.
If the nobles might send a free man, nara, to guard their own interests, every other social group too must be free to guard the interests of its own members. These verses call for check on unreasonable insistence on truth as the only touchstone for giving verdicts on issues that are essentially economic in nature. Manava Dharmasastra is not a fundamentalist document. Both medieval commentators and modern scholars have misinterpreted it and presented it as a chimera.
Those who speak the untruth for noble causes should not be punished but yet they are required to expiate their sin.They should offer sacrifices to Sarasvati with half-boiled rice (charu) dedicated to the speech-goddess (vagdevata), doing the best expiation (nishkrti) for the sin (ena) of untruthfulness (anrta). (Jha) (8-105)This might have been an early Vedic practice of the Sarasvati region and revived by the end of the Vedic era when Sarasvati was recognized as the devata who inspired all knowledge and all noble utterances (vag, especially the Vedas that have come down by oral transmission). We would resist the temptation to treat this verse as a comparatively later interpolation. [The term, anrta, meant acting in an unnatural way.]
The pledge to speak the truth at all costs, satyavrata, was a tall order for most but it was necessary to insist on it. Law had to accept that every one was honest unless he was proved to be dishonest. The dishonest who were not found out and punished should perform expiation at least in private. Manusmrti adds that or he shall offer according to rule, ghee into the fire, with the kushmanda texts or with the verse, ut etc. sacred to Varuna or with the three verses sacred to the water.(8-106)
This direction to resort to the mantra mentioned in Yajurveda indicates that this verse recalls a tradition that had its origin in the Vedic age. Varuna had to be pacified so that one could stay assured that his guilt in speaking the untruth was pardoned by the then authorities, for it was for a noble cause that he had done so. He would not be taken into custody for a socio-economic offence. According to Buhler, the guilty appeals to Varuna to untie the uppermost fetter. This appeal is, it is said, incorporated in a Rgvedic hymn.
Abstention from giving evidence was punishable. The free man (nara) who without being ill does not give evidence for three fortnights in regard to debts (rna) etc. should bear the entire debt and also a penalty of the tenth part in all cases. (8-107) The court levied the fine and it went to the state treasury. The next verse (8-108) is irrational and must have been an interpolation. That witness who may be found, within a week of giving evidence, to suffer from illness, fire or the death of a relative, should be made to pay the debt and also the penalty.
According to the commentators, Narada points out that the learned have declared the following incompetent to be witnesses. (1) Those actually declared by law to be incompetent i.e. learned Brahmans, devotees, aged persons and ascetics; (2) incompetent on account of depravity i.e. thieves, robbers, dangerous characters, gamblers and assassins; (3) incompetent by reason of contradiction, (4) one not called for deposition (including spies); (5) one dead. Those who have vested interest in the suit must not be examined as witnesses, nor friends or associates or enemies or notorious offenders or persons stained with a heavy sin nor a slave or an impostor. Those who are not eligible for Shraddha rites, that is, those who are excommunicated are not to be admitted as witnesses.
A child, an oil-presser (?), an intoxicated, a lunatic, a careless person, a distressed person or a gamester is not to be admitted as a witness. One who sacrifices for the whole village is not a competent witness.(?) One engaged in a long journey, a merchant who travels to countries overseas, a religious ascetic one sick or deformed or a simpleton is not a competent witness. A learned Brahman and one who neglects religious practices are both kept out and so too eunuchs and actors.
The list of incompetent witnesses includes an atheist, an apostate, one who has forsaken his wife or his (domestic) fire (agni), one who makes illicit offerings, one who eats from the same plate as his associate, a spy, an enemy, a relation (by the father), a relation (by the mother), an evil-doer, a public dancer, a poisoner, a snake-charmer, an incendiary, one who sells poison, one gulty of minor offence.
One oppressed by fatigue or is ferocious or has relinquished worldly aptitudes or is penniless or leads a bad life or is still a student or is one obsessed by a demon or is an enemy of the king or is a weather-prophet or an astrologer or is malicious or is one self-sold or is physically handicapped or is a pimp is not to be invited as a witness. One with bad teeth or black nails or is a betrayer of friends, or is a rogue, or is a liquor-seller, or a juggler, or is avaricious or is cruel or is an enemy of a company of traders or of a guild or is a quack or manufactures leather-goods, or is a cripple or an outcast is not to be called in as a witness. Most of these were included later in the list of incompetent witnesses.
A kings attendant is not to be cited as a witness. A Brahman who sells human beings, cattle, meat, honey, milk, butter or water is barred. A dvija who is a usurer, one who neglects his duties, a judge, a bard, one who causes dissension among people, one who quarrels with his father, one who serves low people are all barred. But in the case of heinous crimes, robbery, adultery and defamation, the king may not adhere to procedural rules strictly in inquiring into the character of the witnesses.
Children and women could not be cited as witnesses.One who is alone (bachelor or widower) could not be called in as witness, except with the consent of both the parties. Naradasmrti debars also witnesses from lower classes. Its emphasis is on having reliable and mutually acceptable witnesses. This list reflects an attempt to keep social decadence under check by protecting innocent persons from being exposed unnecessarily to disputes and court procedures.
Narada and Brhaspati recommend that if the witnesses are equally divided, the testimony of those with superior memory should be accepted. Yajnavalkya says that even after the witnesses have deposed, if other witnesses better qualified or in larger numbers come forward to depose to the contrary, the former witnesses should be rejected as false. Brhaspati says: That witness is a messenger who is a respectable man, esteemed and appointed by both parties and has come near them to listen to the speeches of the defendant and the plaintiff.
He is a spontaneous witness who declares before the hearing begins that he has witnessed the transaction but has not been cited as a witness. That witness who communicates to another man what he has heard, at a time when he is about to go abroad or is on his deathbed is called an 'indirect witness. One who repeats what he has heard from another too is indirect witness. He is called a secret witness to whom an affair has been entrusted or communicated by both the parties or who happens to secretly witness the transaction. The King himself after the statements of the litigants are heard may depose as such witness. Most of the later Smrtis are found to snatch some of the stands of Manusmrti but do not appear to have altered these substantially. In Manusmrti there is an attempt to be systematic, logical and reasonable as traced above.