INSTITUTION OF JUSTICE
OATHS, ORDEALS, PERJURY AND PUNISHMENT
The judge is told that in cases where there are no witnesses, if he cannot get at the truth (satya) in the case between the two disputants by any means, he should discover it by means of oath (sapata). This verse does not mean that the judge can resort to any means to find out the truth other than the logical system approved by the science of jurisprudence. (8-109) The editors of Manusmrti were worried whether sapata, taking oath in the presence of the king or the judge was adequate and was valid.
It would appear that Vasishta, one of the ten sages who drafted Manava Dharmasastra, had to swear an oath in the presence of the civil administrator, nrpa, of the grove known as Pijvana. It must have been in a case against his protg, Sudas, who was consequently deposed. Even the great sages (maharshis) and nobles (devas) had for specific purposes taken oath, the verse (8-110) states. This seems to be a reference to a case where one of the seven great sages was suspected to have stolen a lotus and to another case where Indra and other nobles were accused of having molested Ahalya, wife of Gautama, colleague of Vasishta.
In a case where one swears by laying his hands on the head of his wife or children, the oath consists in invoking evil upon the latter. It however is irrational though the readiness to take such an oath may give credibility to the assertion made by the witness or the litigant.
The free man (nara) who (is not bound by affiliation to his family or community but) is an unattached intellectual (budha) should not take an improper oath. He is cautioned that he will be ruined in the present career as well as after his death by taking an invalid oath. (8-111) His property is liable to be attached and he will be denied the privilege of a decent burial or cremation. Even on minor matters he should refrain from swearing.
Members of organised clans and communities were not required to appear before any court set up by the state. Only persons who were not subject to the discipline of a clan could be produced before such a court for an offence. These budhas, intellectuals of the social periphery were often reckless in their speech.
However it is not an offence to swear to ones beloved or at marriage or for getting fodder for cattle or for fuel or for helping a Brahman. (8-112) At the trial, a Brahman should be made to swear by truth (satya), a Kshatriya by his vehicle and weapon, a Vaisya by his cattle, seed and gold and the Shudra by all sins (pataka).
The Brahman is afraid of being condemned as a liar and a Kshatriya of being deprived of his status and power, a Vaisya of losing his property and a Shudra who has no property, of being condemned as having committed grievous sins (8-113). [Manusmrti does not prescribe taking oath in the name of any God or on any holy book.]
The judge may as an alternative ask the litigant to fetch fire or dive under water or touch the heads of his son and wife to indicate that what he proposes to state is true. He need not utter the oath if he is not sure that what he says is the truth. (8-114) The litigant who is not burnt by the fire or who is not afraid of getting drowned and hence does not hasten to come up or who does not speedily suffer some misfortune should be regarded as pure on his oath. (8-115) This is irrational and is a sign of decadence. This verse must have been a later interpolation.
The next verse (8-116) reads: Formerly when Vatsa was accused by Medhatithi, his younger brother, who held the status of a judge of the peoples court, Agni, and who was also an observer (spasa) of the happenings in the jagat, the social universe of the peoples constantly on the move, of violation of his duties as a Brahman, the former to prove that he was speaking the truth stood the ordeal of fire.
Burnell read it as: For when Vatsa of old was accused by his younger brother, the fire (which is the witness) of the whole world, burned not even his hairs, on account of his truthfulness. The two are said to have been the sons of Kashyapa. This Medhatithi was a contributor to the Rgveda. Vatsa belonged to the school of Kanva. Medieval commentators tried to establish that oaths and ordeals were valid methods of finding out truth. But their arguments had not convinced all of their own times. Medhatithi (of medieval times) says that, as the witnesses are not always reliable, oaths and ordeals may be treated as an alternative method to arrive at the truth.
The editors of Manusmrti say: In whatever suit false (kauta) evidence should have been given, the effect of that evidence shall cease and what has been done shall be undone. (8-117) Burnell translated this verse as: In whatever dispute (at law) false testimony has been given, (the king) should reconsider that affair; and even what has been done is to be (regarded as) not done.
The use of the term, kauta, calls for closer scrutiny of this verse. It would mean an attempt by the witness to deliberately mislead the judge and get a guilty person off the hook and the innocent man trapped. The trick played may come to light later through reporters or spies. As there can be miscarriage of justice, irreversible sentences like death should not be pronounced. Neither ordeals nor oaths nor even shrewd questioning of the witnesses can always promise success in arriving at the truth.
But not all witnesses who mislead the judge are crooked. Some give unreliable (vitatha) evidence (sakshi) as they are under the influence of greed (lobha) or fascination (moham) or fear (bhaya) or friendship (mitra) or lust (kama) or wrath (krodha). Some are ignorant (ajnana) and some are immature like children (balabhava). (8-118) The judge has to be alert while assessing their evidences. [Reliable documentary evidences were rare as very few knew how to read and write. Scripts had yet to make headway.] Then the chief editor proceeds to explain the different types of punishment to be given to the false witnesses. (8-119)
If one had given false evidence out of greed, he was to pay a fine of 1000 panas. If it was out of delusion, he was given the lowest punishment (250 panas). If it was out of fear (of reprisal) the fine was double, the middle range (500 panas). If it was out of friendship, it was four times (that is, 1000 panas). If it was out of lust, the fine was ten times the first (2500 panas). If it was out of wrath, he was fined 3000 panas. If it was out of ignorance he was fined only 200 panas and if it was because he was immature, the fine was reduced to 100 panas. Of course the guardian would have paid it (8-120,121). These rates of fine (danda) appear to have been recommended by the school of manishis, psychologists and independent thinkers who stood for freedom of thought and expression.
This is in tune with who had been described as unreliable (vitatha) witnesses as declared by the Arthasastra of Kautilya, an expert in diplomacy. The deposition of a Kautasakshi was valid in diplomacy. He was set up as spasa, spy, and belonged to the social universe of Gandharvas who did not share the moral principles and ethics prevalent among the commoners who abided by the principles enunciated in Dharmasastra and upheld by the judges.
The manishis (social counsellors) recommend these fines against these invalid witnesses so that the moral code, dharma does not cease to be practised and adharma is restrained. (8-122) The civil administrator, nrpa, was not empowered to imprison a delinquent or subject him to corporal punishment. (There were no prisons in rural areas.) He could certainly not award death sentence. He could however exile the guilty.
If the delinquent belonged to one of the three lower varnas, he had to pay the prescribed fine and was also exiled (asked to go on pilgrimage to expiate his sin). But if the delinquent was a Shudra, a worker without the means to pay the fine, he could be exiled or made to undergo a sentence of hard labour in lieu of fine and exile.
This punishment that was in tune with the scheme of penalty prescribed by the Dharmasastra, socio-economic code, had to be amended in the case of a Brahman who gave false evidence. The Brahman too was poor and could not pay the fine. He was deprived of his religious paraphernalia and abode (vivasa). The administrator was not competent to direct the Brahman to go on pilgrimage but the latter could do so on his own (8-123).This verse is not to be cited as a case of unjust social discrimination. The civil administrator could not inflict corporal punishment; only the king could.
Manusmrti says that the first Manu, Svayambhuva (who proposed the compilation of the Dharmasastra and guided its editors) has mentioned the ten places on the body where it should be inflicted in the case of the three classes, varnas (Kshatriyas, Vaisyas and Shudras). But the Brahmans should go unscathed. (8-124) Some have interpreted that this exemption meant that the Brahman though guilty of giving false evidence and of derailing justice thereby should not be deprived of his residence.Such interpretation is unwarranted and has to be rejected.
The two verses or at least this verse (8-125) seems to have been tampered with by later editors. What the ten points on the body that could be hit without maiming one are to be traced. Manu Svayambhuva could not have advocated corporal punishment. He was an advocate of non-violence and truth. The later editors most of whom were Brahmans by birth (but not trained jurists) did not hesitate to take liberty with the text to help their ranks and misuse the name of Manu Svayambhuva.
Having duly ascertained the motive (anubandha) and the time and place, and having taken into consideration the condition (of the guilty) and the nature of the offence, he (nrpa, the civil administrator) shall inflict punishment (danda) on those liable to be punished. (8-126)
The ruler is warned that unjust (adharma) punishment (danda) is destructive (nasana) of fame (kirti) among the commoners (loka) and he would lose what he has kept for his future benefit (yasa ogha). He would lose the opportunity to be elevated as a noble. Jha has missed this point as he translates it as In the other world (paratra) also it leads to loss of heaven (asvarga).(8-127)This ruler, nrpa, is but a commoner. He has to follow the schemata of punishment prescribed by the Dharmasastra.
By punishing those who do not deserve to be punished and by not punishing those who deserve to be punished, he meets great (mahat) failure in his objectives (ayasa) and goes to naraka (hell, in common parlance). The civic administrator (nrpa) is deposed and sent to the ghetto, the lowest level that a free man (nr or nara) reaches in his life, instead of being absorbed into the nobility (8-128).
The king should first reprimand (vagdanda), then censure (dhigdanda, to be precise to go away in a particular direction for which the offender was not ready) and then confiscate the property of the guilty (dhanadanda). Capital punishment (vadhadanda) is the highest punishment. (8-129)
When however he is not able to restrain them even by (threat of) capital punishment he should inflict on them all the four. The hardened criminals are not easy to be handled. (8-130) Some have translated vadha as physical torture short of death penalty. This is more likely, for kings imposed death penalty only for treason and not for civil offences. Imprisonment too is not recommended. The later editors of Manusmrti then proceed to describe fully the values of the copper, silver and gold coins that had then come into vogue in economic transactions (vyavahara) among the social worlds (lokas). (8-131 to 137)
The basic copper coin was known as pana or karshapana, the basic silver coin as dharana and the gold as suvarna. Karshapana was used for trade in agricultural commodities and silver coins, dharana in trade and usury. Suvarna was not currency. Since the entire process of comparison of these has been vitiated by change in values from time to time we would pass this by but with the remark that we wonder whether there were times when silver was costlier than gold.
For the first level of offence one was fined 250 panas, for the middle level 500 panas and for the highest level 1000 panas. (8-138) If the debtor conceded that he owed the amount claimed, he was required to pay a fine of 5 per cent of that debt. If he denied that he owed any amount and if he was proved wrong he had to pay double, that is, 10 per cent of the debt as fine. This was according to the code of discipline (anusasanam) proclaimed by Manu (8-139). This must have been a reference to Pracetas Manu, author of an Arthasastra.
INTEREST, PLEDGES AND SURETIES
(8-140 to 162)
Jha translates the verse (8-140) as: The money-lender shall stipulate an interest sanctioned by Vasishta, for increasing the capital. He shall take monthly the eightieth part of the capital. Jones read it as: A lender of money may take in addition to his capital the interest allowed by Vasishta, that is, an eightieth part of a hundred, or one and a quarter, by the month, if he have a pledge. Buhler took the same position as Jha did. Jones must have introduced the clause of pledge to bring down the annual interest from a high rate to 15 per cent per annum, which Gautama, Yajnavalkya and Vasishta had agreed to.
But 60 per cent of the capital as interest on unsecured loans was sucking the blood of the debtor, a reign of terror by the usurer. Jha translates Medhatithis views as: There is no impropriety in it on the ground of greed as it increases ones capital. At the time one advanced the money to the debtor, he should clearly stipulate the rate of interest. It appears that this exorbitant interest was charged from dealers in clothes, grains and gold (who did not produce surety). Those who sold liquor had to pay eight times the capital as interest. If these exorbitant rates had been really permitted they must have crippled commercial economy.
Burnell reads the verse (8-141) as: On reflecting on the duty (dharma) of good men, he may take two per cent, for even taking two per cent a month, he does not become a wrong-doer for gain. The rate of interest to be charged from a Brahmana, Kshatriya, Vaisya and Shudra was fixed as 2, 3, 4 and 5% per month respectively. (Jha) (8-142) These two verses might have been interpolated later under the influence of the usurers.
Debtors who belonged to higher classes could escape with only scratches but those belonging to lower classes were bled and the authors of Smrtis stood aside and watched them bleed. It was only Kautilya, the much-maligned author of Arthasastra who drove sanity into the minds of the moneylenders and kept them at bay.
The permissible rate of interest for non-commercial social (dharmya) transactions was pegged at 15% per annum but traders who brought goods from abroad by land-routes had to pay 5% per month, if by forest-routes, 10% and if by sea 15%. These economic transactions took into account the risk factor over which states had no control or the traders. The editors of Smrtis neglected this.
Jones translated the next verse (8-143) as: If he takes a beneficial pledge, or a pledge to be used for his profit, he must have no other interest on the loan; nor after a great length of time, or when the profits have amounted to the debt, can he give or sell a pledge, though he may assign it in pledge to another. Buhler read it as: But if a beneficial pledge (i.e. one from which profit accrues has been given), he shall receive no interest on the loan; nor can he, after keeping such a pledge for a very long time, give or sell it.
He points out that according to Yajnavalkya only beneficial pledges are not lost (by the debtor) while those which are merely kept are lost when the original pledge is doubled by unpaid interest. By a beneficial pledge, not only land and cattle but slaves (dasas and dasis) too were meant. This entitled the creditor to take away the entire harvest and the calves and the children of the slaves besides using their labour. This interpretation is unwarranted. Jha translates this verse as: But when there is profitable pledge, he shall receive no interest on the loan; and there shall be neither interference nor sale of the pledge, merely by lapse of time.
The Smrtis have distinguished between usufructory pledges and non-usufructory pledges. In either case the pledge was to be kept in the same condition as the pledger gave it. That foolish person who uses a pledge without the authority of the owner shall lose one-half of his interest as a compensation for such use, Narada says. If a pledge for use has been given, the creditor must not take interest due on the loan.
Brhaspati was strict. Should the creditor actuated by avarice use a pledge before interest has ceased to accrue on the loan or before the stipulated period has expired, such use shall be stopped. The pledge has to be kept carefully like a deposit; interest becomes forfeited in the event of its being damaged. If the pledge is used and rendered useless the principal itself becomes forfeited; if a very valuable pledge be spoilt the creditor must satisfy the pledger.
Yet, in reality, the debtor was always at a loss. When articles are pledged to the moneylender it has got the traits of a debt situation in addition to trust or lack of it. Here all the regulations required for deposits feature and some more. A usufructory pledge shall never be lost to the debtor. As noted by Jha, according to Naradasmrti, a pledge, a boundary, property of a child, an open deposit, a sealed deposit, women, property of the king or of the Vedic scholar can never be lost by adverse possession.
According to Kautilya, an unproductive pledge can be lost, for it gives an undue advantage to the debtor. Interest cannot be charged if the creditor uses the pledge and can be charged if he does not or cannot use it. When the value of the pledge deteriorates to the disadvantage of the pledgee, there can be a public reassessment of its value, Kautilya says. The banker (moneylender) can do so only if the dharmastha, the civil judge permits it. It had to be done under the supervision of the controller of deposits (adhipala) and by experts. Even selling of the pledge by auction by him and in the presence of the pledger was allowed if he failed to redeem it.
The banker was required to ensure that the value of the pledge did not deteriorate. He had to get the land pledged ploughed, even if the pledger had not provided labour and cattle. The pledgee is warned against indifference to the usufruct and against rash exploitation of the land and cattle pledged. In the case of non-usufructory pledge, exploitation in violation of the contract will lead to the forfeiture of the loan and of the profits extracted by the pledgee. This directive of Kautilya reversed the Brhaspati tradition, which favoured the banker against the debtor. (Vide my earlier work, Foundations of Hindu Economic State, which is an in-depth study of Kautilyan Arthasastra.)
Jha reads the next verse (8-144) as: The pledge shall not be used by force; using it thus he shall renounce the interest; he shall satisfy the other party with its price; otherwise he would be a stealer of the pledge. Manusmrti too tried to check the high-handed moneylenders.
But often the debtors failed to redeem the pledges. The banker might be forced to keep with him what he would normally not have desired. Manusmrti says: Pledges and deposits should not suffer much lapse of time; for being left over for a long time, they would be liable to appropriation. (8-145)
Medhatithi comments that it is only a friendly advice, and that according to verse 8-149 there can be no appropriation of pledges and deposits by any lapse of time. Brhaspati took a position in favour of the banker. When the time for payment has passed and interest has ceased, the creditor shall become the owner of the pledge; but till ten days have elapsed, the debtor is entitled to redeem it. Notice having been given to the debtors family, a pledge to be kept may be used after the principal had doubled, and so may the pledge given for a specified period.
Sukraniti however claimed that a pledge like trust money, minors property and state property could not be lost by adverse possession. Brhaspati conceded that transactions within a family were not to be brought under the rigorous law pertaining to banking. A house, field, commodity or other property held by a person other than the owner, is not lost to the owner by mere adverse possession, if the possessor is his friend, relative or kinsman.
Jha translates the next verse (8-146) as: Things used through favour are never forfeited; such as a milchcow, a camel, an ox or the animal that is made over for breaking in. Buhler read it as: Things used with friendly assent, a cow, a camel, a riding-horse, and (a beast) made over for breaking in are never lost (to the owner)." Cows, camels, stallions and studs had to be returned whenever asked for by the creditor or borrower.
The rules applied in banking and trade, are not to be followed blindly in agriculture and animal husbandry or even in industry. The owner is asked to be bold and alert. He has to be cautious against encroachment by others. The above verse might have been a later innocuous interpolation and so too the next.
Whatever thing the owner meekly sees being used by others in his presence, for ten years, that thing he does not deserve to recover. (8-147) States were not stable and often were non-existent. Every owner of property had to guard his interest even against his kinsman. If he does not, no one will come to his help. Commentators have tried to read in it more than what the editor had intended. The ten-year period stipulated is significant.
Laws promulgated were valid for ten years and then there was an interregnum of two years until a new administration of the federal state (virajam) took over and the existing laws were either reiterated or new ones were promulgated. (Vide my thesis, Evolution of Social Polity of Ancient India, Chapter Three.)
Jha translates the next verse as: If the owner is neither an idiot nor a minor and the property is used in his own country, it becomes frustrated in law, and the user becomes entitled to the property. (8-148) Buhler read it as: If (the owner is) neither an idiot nor a minor and if (his chattel) is enjoyed (by another) before his eyes, it is lost to him by law (vyavahara); the adverse possessor shall retain that property.
Burnell reads it as: If the property of a man who is neither under age nor weak-minded is made use of while he is in the vicinity, by the general practice (of the business people), that property is lost (to the owner) and the user has a right to it.
Civil law refused to come to the rescue of the weakling. It had succumbed meekly to the powerful feudal elements. But Sukraniti would not do so, so easily. It said: The property that is enjoyed ceaselessly for sixty years, even without title can not be claimed by anybody. The owner who is indifferent to his property and does not complain about trespasses on his property can not get back by law-suit that property, on the expiry of that property. It visualized a state with a longer life. Brhaspati reduced the period to thirty years.
Only when the property stayed in the hands of a dayada for more than three generations it ceased to belong to the owner. In the case of other members of the same clan, the limit was thirty years. Narada and Vasishta however would not intervene to help the owner if he had neglected his rights for more than ten years. Yajnavalkya extended it to twenty years in the case of lands. Gautama did not want the law of adverse possession to be applied to the property of Vedic scholars and government officials. This law intended to guard the interests of the original owner was to be honoured by every state though the owner might have gone abroad.
This verse has evoked considerable debate because of its implications for the property covered by the dayadaNo one can hold a property unless he can produce documentary evidence of his having acquired it or inherited it. His father, grandfather and the great-grandfather must have held that property in the latter case. Narada wanted to be strict. If a person enjoys a property without title, even for hundred years, he should be punished with the penalty of a thief.
Medhatithi would summarize: The upshot of all this is that in the case of the first generation of the possessor, mere possession, even though extending over a period of twenty years or more, does not establish ownership, which means that the son of the possessor does not acquire the ownership. Narada wanted that all the three grounds, documentary evidence, witness and possession must be met. Some Indologists who assisted the British rulers of India to frame its civil laws preferred to depend on Naradasmrti rather than on Manusmrti. system.
When a banker accepts a pledge he has to examine whether the pledger is its owner and whether he has documents to prove it and if this ownership cannot be challenged in a court of law. The lengthy debates indulged in during later times on this verse and the stands of Narada and others only indicate that the local courts could not coerce the rich and the mighty. They could not outwit the crooked either. There were crooked pledgers and also crooked pledgees.
Medhatithi suggests: What has to be ascertained in each case is if there is any clear title to ownership and in the event of there being none, if the property is in the possession of another party. If it is, then the decision must proceed on the basis of such possession only. In a case where both persons are absolutely without title and are found asserting themselves by mere force, the prior possession is set aside by the twenty years possession, which is more recent and hence free from all suspicion. The law of adverse possession sets aside even possession for three generations. The judge is weak and cannot help the weak against the mighty.
Manusmrti had pious intentions. A pledge (adhi), a boundary (seema), the property of a minor (bala), a deposit (nikshepa), a property enjoyed by favour (upanidhi), women (stri), kings property (rajasvam), and the property of a Vedic scholar (srotriyasvam) are not lost by adverse possession. (8-149) Some have translated upanidhi as sealed deposit. It is more likely that it meant an endowment given by a patron. Merely belonging to the class of Brahmans was not adequate to claim the benefit of this clause. One had to be a scholar in the Vedas.
Manusmrti warns: The fool who, without the owners permission, uses a pledge, shall have to remit half the amount of interest, as compensation for such use. (8-150) The punishment is too lenient. This verse must have been a later interpolation. Since it is a non-usufructory pledge, the pledgee must have charged a high rate of interest. He should have been deprived of the entire interest and asked in addition to pay an amount equal to half that interest.
Buhler translates the next verse (8-151) as: In money transactions (kusida, usury) interest paid (not by instalments) shall never exceed the double (of the principal); on grain, fruit, wool or hair, (and) beasts of burden it must not be more than five times (the original amount).
Jones read it as: Interest on money, received at once, not month by month or day by day as it ought, must never be more than enough to double the debt, that is more than the amount of the principal paid at the same time; on grain, on fruit, on wool or hair, on beasts of burden, lent to be paid in the same kind of equal value; it must not be more than enough to make the debt quintuple. These rates could be claimed only in the case of unsecured loans.
Medhatithi interpreted that the interest accumulated should not be more than twice the capital advanced in cash. Obviously it was cumulative interest and the rate of interest was 2/3/4/5 percent per month depending on the class the debtor belonged to.
When the agriculturists or owners of animals borrowed among themselves for purposes of trade (vyavahara) to those who bought grains, cattle etc. the rate of interest (vyavaharikam) was as high 5 or 10 or 20 per cent per month and the quantum of interest accumulated and payable in kind might be four or five times the capital advanced. This was trade without state protection or intervention.
The debates on these rates only indicate that the creditors had little hope of getting back the money or articles loaned by them and the debtors too had little confidence in their ability to return what they had borrowed. It was not distrust in the other. It was lack of faith in oneself.
The Kautilyan State stood guarantee for the recovery of the loan and accorded protection to the traders and the commodities. When the king did not guarantee the security (yogakshema) of the loans and the traded commodities, the rates of interest as commonly followed (charitra) by creditors and debtors, dhanika and dharanika, would prevail. The judges had to take into account the three situations, non-commercial (dharmya), state-protected commerce (vyavahara) and trade practices (charitra) not protected by the state. Most of the Smrtis belonged to and dealt with times when local administrations survived but not the central government.
Burnell translates the verse (8-152) as: Excessive (interest) made higher than the regular rate is not lawful, and they call this usury; (the lender) may take five percent. This too was excessive if it meant five per cent per month. Jha translates the next verse (8-153) as: One shall not pay or receive an interest (vrddhi) beyond the annual (samvatsari) or what is unapproved (or not accumulated); nor compound interest (chakravrddhi), nor periodical interest (kalavrddhi), nor that which is (privately) stipulated, nor corporeal (kayika). Corporal interest meant physical labour being rendered by the debtor for the creditor in lieu of interest in cash. [This led to debt bondage that was often not redeemed.] This rule protected the interests of the debtor and prevented his being required to render physical labour in lieu of interest.
Jones however interpreted it as: Let no lender for a month or for two or three months at a certain interest, receive such interest beyond the year; nor any interest which is unapproved; nor interest on interest by previous agreement; nor interest exacted from a debtor, as the price of the risk, when there is no public danger or distress; nor immoderate profits from a pledge to be used by way of interest. He introduced clauses that were alien to the text. Yet they could not protect the debtor from the clutches of the greedy creditor. The commentators differed widely on the implications of the restrictions proposed in this verse. The judge had to find out if the monthly interest (one and a quarter pana per hundred) was collected annually at the end or monthly in advance.
The latter gave an undue advantage to the lender and was prohibited. There should be no invisible clause that gave the lender an improper advantage. The interest agreed upon was to be paid only at the end of the year along with the capital. If the loan were repaid earlier, interest would accrue only for the number of months it was used. But the debtor was free to pay the instalments of the capital and/or the interest whenever he chose to and the lender could not refuse to accept it.
The different Smrtis and commentators are seen to have interpreted this verse in ways that denied the debtor the promised protection. The editors of Manusmrti were humane and stood by the exploited and the weak rather than by the greedy and crooked bankers.
He who, unable to pay the debt, wishes to renew the contract, shall change the bond, after paying the interest. (Jha) (8-154) The banker could not refuse to oblige. Burnell reads this verse as: He who, being unable to pay a debt, desires to renew the obligation, must cause the proof (of the obligation) to be repeated after he has paid the interest.
Narada says: if by lapse of time the debtor becomes bereft of thecapacity to pay, he should be made (by the king) to pay the debt according to his capacity, taking into consideration, the time, place and the rate of interest. But the new bond could not introduce any clause prohibited by the previous verse.
Not having brought forward the gold, he should renew the bond; and he should pay as much interest as may be possible. The debtor was required to return the gold ornament he had bought on credit if he did not pay the cost agreed upon with interest specified.
If he could not do so, he was asked to renew the bond mentioning the new amount due as the cost plus interest accrued as capital borrowed. But the new rate of interest on this should be considerably lower. According to the trade practices, a small amount of the accrued interest was to be paid before the bond was renewed. (8-155) This situation pertained to the relation between the owner of the gold ingot and the manufacturer of gold ornaments.
When one has entered into a contract based on compound interest, chakravrddhi, specifying the place where and time when the loan would be returned with interest, if he failed to do so, he shall not suffer its reward. (Jha) (8-156) This too pertained to loan taken for purposes of trade, especially trade abroad.
If the trade could not take place and the debtor could not get any profit from which he had proposed to pay a substantial amount as interest and hence returned the debt early, the debtor should not be allowed to suffer. It should be treated as a non-commercial loan at simple monthly interest. Some commentators had misconstrued it as wheel-contract, contract entered into for transporting goods. The rate of interest to be paid by traders who travelled across the seas was very high. The reasonable rate was to be fixed by persons who were experts in sea-voyages. (8-157) This verse might have been a later interpolation.
Traders who borrowed money and went abroad had to ask one of their kinsmen or a local trader to stand surety.When one stands surety (pratibhu) for the appearance (darsana) of a person (manava, who was not attached to any region), if he does not produce (adarsya) him, he shall pay his debt out of his own property (svadhanam). (8-158) [It is necessary to keep in mind the distinctions among the terms, manushya, nara, purusha, manava and bhuta and not translate them all indiscriminately as man or as person.] Only one who had personal property could stand surety. It should not be the property of a family over which all its members had claim.
But the son shall not be liable to pay the surety-money for appearance (pratibhavya), or a futile (vrtha) gift (danam) (to persons like prostitutes and mistresses) or gambling debts (akshikam) or debts due to liquor (saurikam) or the balance (sesha) of fines (danda) and duties (sulka). (8-159)
The lender is not allowed to ruin a family by lending money for pursuit of immoral activities by its head. Even the state could not punish the son for the sins of his father. The law (vidhi) laid down in the preceding verse shall apply to the case of surety for appearance; in the case of the death of the surety for payment (danapratibhava), however, the dayadas, kinsmen, of the latter had to pay what was due from the debtor. (Jha) (8-160) This was obviously intended to force the delinquent debtor to reform and return to his estranged family or get openly relinquished by it.
By what means then would the creditor seek to obtain his dues, in the event of the death of the surety other than that for payment, whose character is fully known? If the surety were one to whom money had been made over and who had enough money, then he to whom it had been made over shall pay it out of his own property (svadhanam); such is the settled rule.
The creditor would not be able to force the kinsmen, dayadas, to partition the property and hand over the share of the defaulter to him. Since the deceased son or person had stood guarantee only for the appearance and for payment by the debtor, the dayadas of the deceased surety could not be hauled up before the court. Whether that surety was alive or not, the dues could be recovered from his personal property. (8-161, 162)
INVALID CONTRACTS, STATE DUES AND INSOLVENCY
(8-163 to 178)
An economic transaction (vyavahara) effected by one who is drunk or is insane or is distressed or is wholly dependent or is a minor or is senile is invalid. (Jha) (8-163) Burnell interprets this verse as: A business transaction is not legal when it has been performed by a drunken person, a crazy person, a person in distress, a slave, a child, an old man or one not duly authorized. Burnell agrees that the text could have meant a dependent rather than a slave. Some western Indologists have deliberately tried to create the impression that slavery was rampant and institutionalized in ancient India.
The context indicates that this was intended to invalidate the loans that such persons were alleged to have been given. Though it honestly tried to curb cheating by the avaricious and greedy, later Smrtis have subjected this verse to considerable debate. The debate was intended to save the lenders from shrewd and dishonest borrowers and those who had stood surety for them.
Buhler translates the next verse (8-164) as: That agreement which has been made contrary to the law or settled usage (of the virtuous), can have no legal force, though it be established (by proofs). Jha translates it as: No oral contract (bhasha), even though substantiated (pratishtitha) is valid (satya bhavati), if what is contracted (vyavaharika) for is contrary to law (dharma) and established custom (anniyata).
Medhatithi wanted that the language used in the deed should not violate any rule mentioned in the dharmasastra, socio-religious code and the practices approved by the economic code (vyavahara). Jones translated it as: That plaint can have no effect, though it may be supported by evidence, which contains a cause of action inconsistent with positive law or with settled usage.
Buhler read this verse as: A verbal agreement, even if it be upheld (by evidence), is not a true (agreement) if what has been said (in this agreement) is opposed to the law which has been established, and which is usually acted on in business transactions. This verse might have been a later addition to the text for curbing the cheating of the innocent and ignorant debtors by the shrewd and crooked moneylenders. It is not the letter of the deed that should weigh but the spirit of fairness as intended by the social and economic codes.
Dharma that was based on truth (satya), vyavahara that depended on the evidence given by the witnesses and charitra or usages that the elders of the village vouched for were to be given credence. And not the language of the document or deed as only the written order issued under the seal of the king was binding on the judiciary. (Vide Foundations of Hindu Economic State on the four bases of Arbitration as declared by Kautilya.)
Jha translates the next verse (8-165) as: Fraudulent (yoga chadma, clandestine) mortgages (dhamana) and sales (vikri), fraudulent gifts (dana) and acceptances (pratigraha), as also all wherein he detects fraud he shall nullify (vinivartaya). This clause was intended to protect the honest among the debtors. Yet, some debtors, unable to discharge the debts incurred fled leaving their families in lurch and the banker high and dry.
When the borrower is lost and the expenditure was incurred by the family, the debt is to be paid by the relatives (bandhus) out of their own property, even though these may have been separated. The mere claim that the brothers are not living together and that they are also legally separated and do not have common property is not accepted as the expenditure has been incurred on the undivided family. (8-166) The banker too needed protection.
Should even a servant effect a transaction (vyavahara) for the sake of the family (kutumba), the master whether in his own country (svadesa) or abroad (videsa) should not repudiate (navichalaya) it. (8-167) Buhler translates it as: Should even a person wholly dependent (adhyadhina) make a contract for the behoof (benefit) of the family, the master (of the house) (jyaya, grhasvami) whether (living) in his own country or abroad shall not rescind it. The property was owned exclusively by the svami. It was not the property of all the kinsmen,bandhus or dayadas. Burnell uses the term, slave instead of servant or dependent (for example, younger brother) or subordinate. This usage is unwarranted.
What is given by force, what is enjoyed by force, what has been caused to be written by force, all transactions effected by force Manu has declared to be void. (Jha) (8-168) An economic transaction has to be voluntary, open and honest. Often the rich bankers forced the needy farmers and even small traders to accept conditions imposed by them, knowing fully well that these would break their backs and included unjust clauses.
The debtors who failed to repay in time or on demand were threatened with dire consequences and asked to sign new bonds that were more stringent than the earlier ones. It was usury backed by force. The state should refuse to honour such transactions.
This clause (what has been written by force) must have been introduced during the Middle Ages when usurers had become powerful and the later editors must have invoked the name of Manu to curb them. Written documents which made their appearance during the medieval times did not necessarily give protection to the weak debtors.
Burnell comments that Muller regards it as recognizing the practical employment of writing for commercial transactions. He adds that writing was used long before it was used in the literature of India and that it appears to have been first used for grants and deeds and later for literary purposes. Burnell is unable to explain why this verse mentions Manu. Manu mentioned here must have been Manu Surya Savarni (with whom Narada the economist was associated and perhaps Kautilya too).
Jha translates the next verse (8-169) as: Three persons suffer for the sake of others, witnesses (sakshi), surety (pratibhu) and the judge (kulam); while four persons prosper, the Brahmana (vipra), the affluent (adya), the merchant (vanika) and the king (nrpa). The term, adya, must have referred to one who had capital that could be lent for investment in ventures. Jones read it as: Three are troubled by means of others, namely, witnesses, sureties and inspectors of causes; and four collect wealth slowly, a Brahman, a moneylender, a merchant and a king.
Buhler read it as: Three suffer for the sake of others, witnesses, a surety and judges; but four enrich themselves (through others), a Brahmana, a moneylender, a merchant and a king. While later commentators like Medhatithi and Kulluka interpreted the term, kulam as judges, Naradasmrti meant by it clan.
Burnell translates this verse as: Three are afflicted for the sake of another, witnesses, a surety and a family; four enrich themselves (by means of others), a priest, a creditor, a merchant and a king. It would appear that in the course of a judicial inquiry, the witnesses, the sureties and the members of the affected clan or dayada group were put to a lot of hardships. But the vipras who were required to sit on the bench had to be duly honoured and paid for their services from the fines collected.
The affluent banker who had given the loan was helped to recover it. Or the arbitrator helped out the trader who had borrowed the amount from the usurer. Of course, it was the civil administrator, nrpa, in whose jurisdiction the litigation took place, who collected the fines.
Buhler translates the next verse (8-170) as: No king (parthiva), however indigent (parikshina), shall take anything that ought not to be taken, nor shall he, however wealthy (samrddha), decline taking that which he ought to take, be it very small. The western Indologists and their Indian adherents had failed to note the distinctions among the terms and positions, nrpati, parthiva and raja and translated them all indiscriminately as king.
The agriculturist ruler was not born in a rich family and could not continue to be an agriculturist as long as he was a ruler. His livelihood depended on the share of his collection from the people as taxes and fines. But the parthiva was not permitted to enhance the rate of fines and taxes or excuse or reduce them. The rates were fixed and he had to follow them irrespective of his need or his wealth.
In consequence of his taking what ought not to be taken, or of his refusing what ought to be refused, a king (rajan) will be accused (khyapya) of weakness (daurbala) in this (world) and after death (pretya). (8-171) Burnell was imprecise when he translated this verse as; By taking what ought not to be taken, and by neglecting to take what ought to be taken, the weakness of the king is proclaimed, and he is lost in this world and in the next.
A litigant could appeal to the king (rajan) for reduction in fine imposed by the parthiva (the ruler of the agricultural hinterland) and to the parthiva against that by the civil administrator (nrpati). Most commentators have failed to notice this aspect.
For the nrpati, a free man and civil administrator with no lands, fine was the only source of income. The parthiva was an agriculturist and was not totally dependent on taxes and fines for his income. Unlike the nrpati who would have been happy to collect huge fines, the parthiva could not either enhance or reduce the fines mentioned in the manual. But the king, rajan, could afford to excuse the fine and become popular with the guilty or increase it and become popular with the plaintiff who felt he had not been vindicated. In either case he would be playing to the gallery and that was a sign of weakness.
The king is cautioned against misusing the power that he had to overrule the code. He is told that by taking what is his due, by proper adjustment (samsarga) of the (scheme) of class (varna), by protecting (raksha) the weak, the kings (raja) power increases and he prospers now and also continues to be popular even after his death. (8-172) It would be more logical to interpret varnasamsarga as bringing about a conciliation between the two classes, rich creditors and poor debtors. He has however to protect the weak against the mighty.
Hence, the rich chief (svami) [the aristocratic leader who is intent on becoming a conqueror instead of planning to enrich himself and striking terror in the hearts of all and thereby becoming unpopular] should behave like Yama. He should renounce his personal likes and dislikes and conduct himself like Yama, conquer his wrath (krodha) and his senses (indriyas).
[This was the policy advocated by Yama, son of Vivasvat, that is, by Manu Vaivasvata who had held the position of Yama, the chief magistrate who enforced the laws that banned certain anti-social acts, during his period of training. Burnells view that Yama meant the judge of the dead is based on interpretations provided by later medieval and modern annotators and is unacceptable.] (8-173) Only a ruler and leader who can control his anger against even the unjust and has no personal likes and dislikes and is not greedy (lobha) can be a just conqueror.
Jha translates the verse 8-174 as: If an evil-minded (duratma) person (nara adhipa) through folly (moha) deal with cases (karya) unjustly (adharma), his enemies (satru) bring him under their control (vasa) in no time (achira). If the leader of free men who has set his eyes on becoming a charismatic chieftain and conqueror fails under misdirection and delusion (moham) to give importance to the methods recommended by Dharmasastra for settling economic disputes among the people, his enemies would soon overpower him.
The svami was not a king elected by a college of rajanyas. He was not permitted to lead the state army. He could lead only his personal army, svadanda, in his expeditions against the anti-social elements. The nrpati, civil administrator, can rise to be the chief of all free men, nara adhipa, and lead as the general of an infantry, an army of such free men (naras), as a conqueror, vijigishu, and become the head of the circle of states, mandala, and then of the confederation, chakra, of states, a chakravarti. But he will fail in this objective if he does not follow the path recommended by Dharmasastra and is an unjust and greedy chief. Again, both medieval commentators and modern annotators have failed to note this aspect.
Buhler translates the next verse (8-175) as: If, subduing love and hatred, he decides the causes according to the law (dharma), (the hearts of) his subjects (prajas) turn towards him as the rivers (sindhus) (run) towards the ocean (samudra). Jones read it as: But him, who subduing both lust and wrath (kamakrodha), examines causes with justice, his people naturally seek, as rivers the ocean.
Jha translated it a: When however, having subdued love and hatred, he deals with cases justly, his subjects turn towards him (anuvarta), as the rivers towards the ocean. Burnell read it as: But if, restraining lust and anger, he views all things with justice, his people hasten toward him as rivers do towards the sea.
The svami who seeks to become a conqueror has to first make all those in his territories his subjects and inspire them to follow him. As the waters of several streams join the river (Sindhu) as it flows towards the ocean so too the people of the countries conquered by him should be inspired to follow (anuvarta) him as his subjects. This would be possible if he is impartial and is free from lust and wrath and treats all equally and justly in matters pertaining to economy. [Economic justice is called for.]
If one complains to the civil administrator, nrpa, that a creditor (dhanika) is trying to accomplish his purpose secretly (chhanda, bypassing the verdict given by the judiciary), the king (raja) should make that creditor pay the whole of that loan and one fourth part of it. (8-176) Burnell was imprecise when he translated this verse as: He who accuses a moneyed-man (a creditor) before the king (because of his) compelling the payment of a debt in any way he chooses, shall be fined one-fourth part of the debt by the king, and (be made to pay) the money to the debtor.
This translation presents the state as the supporter of the (rich) creditor against the (poor) debtor. This is wrong. The entire loan would be treated, as payable not to the creditor but to the state and the creditor would be fined one fourth of that amount. The nrpa did not have the coercive power necessary to deal with such crooked and defiant usurers. He had to report to and seek the help of the king. Commentators had not noticed this aspect of the early post-Vedic polity. The creditors too had their tales of woe. Often the creditors frittered away the loans taken and the creditors had to resort to force as the civil administration could only give judgment but not help them out by coercing the debtors to repay the loans.
The next verse (8-177), obviously a later interpolation, says: Even by physical labour shall the debtor (rnaka) make good what is due to the creditor (dhanika), if he is of the same or lower community (jati); shall pay it up gradually. No creditor would dare to ask one of a community higher than his to do physical work. Most creditors were Vaisyas. Brahmans could not be asked to do physical labour and Vaisyas were not bold to extract such labour from Kshatriyas.
According to these rules (vidhi) let the king (raja) reconcile (mitha) the arguments (vivadata) between free men (nrs) equitably (samata) and tactfully (naya) weighing the evidences given by witnesses for settlement of the economic dispute, the purpose of the judiciary. (8-178)
Burnell read this verse as: By this rule let the king make an equitable decision in regard to the affairs of the two parties mutually at strife, when these affairs have been made plain by witnesses or ordeals. Some western Indologists were eager to establish that the ancients resorted to the cruel and irrational method of ordeals while meting out of justice. The term, ordeal, does not feature in the text. The quarrels among members of the same clan or community or economic corporation or guild did not come up before this judiciary. It dealt with only disputes between the free men (naras) who were outside these organizations.