KAUTILYA AND THE DHARMAVIJAYI
War and Economic Gains
It is inevitable that the kings primary state will lose trained men and sustain depletion of gold and wealth. But if by victory, he is able to offset this loss he may march against his enemy, Kautilya says. Ten types of gains are distinguished by the Arthasastra. It may be noted that none of these ten types of gains envisages a permanent annexation of the conquered territory.
Adaya is gain which is the vijigishus (conquerors) own and he need ot share it with the ally nor is it restricted by any obligation to the latter. It is the compensation paid by the defeated king to purchase peace. Conquest is an economic enterprise.
Prati-adaya is returnable profit. The vijigishu is allowed to operate the mines, forests, irrigational works and trade routes of the defeated ruler for a specified period and improved and then returned in a better condition to the defeated king. There is no rancour as there is no permanent annexation of these by the conqueror.
Prasadaka is the situation when the vijigishu functions as a trustee of the temporarily annexed area and he benefits the local population even as he recovers his dues. The people are happy with the benefactor.
If the exploitation of the land or mines does not yield any benefit to the vijigishu and hence his native population resent it, the colony is a liability. This is termed prahopaka. If the gain proves hollow, he loses prestige. If the gain leads to increase of his personal wealth, then his amatyas may turn against him and there will be dissatisfaction in his primary state. A colony under the kings personal control becomes his svabhumi and is in reality not an advantage to him. It upsets the distribution of power in his primary state. It is an illusory gain.
Hrsvakala is plunder while on march. Tanukshaya is emaciation of the enemy who is worshipped by his people. It is a diplomatic gain, for the enemy cannot operate his resources to the disadvantage of the vijigishu after he has been proved to be but a minor chieftain. When the defeated king is forced to provide the capital needed for the project and the conqueror pays the wages of the workers and the gains are enjoyed by the conqueror exclusively it is called alpavyaya. (A mode of reparations imposed on the defeated king.)
The gain which can be used in the vijigishus primary state for the development of its economy is a source of further wealth and is greatly acclaimed as mahan-vrddhayudaya. Katya is harmless wealth gained without troubles. Dharmya is wealth acquired through envoys (prasastrs). It is the best for he need not indulge in battles. The enemy agrees to contribute for specific pious social projects in the kings primary state.
Kautilya agrees that imperialist wars are followed by exploitation of the human and economic resources of the defeated countries, but he denies that such exploitation is necessarily to the disadvantage of the local population in the conquered lands. Wisdom demands avoidance of ruthless exploitation for not only the inhabitants of these lands are enraged but the population in thethe primary state of the conqueror are disturbed by it. The extent of exploitation is limited not by the desires of the conqueror or by ethics but by his need to maintain a balance among the power structures in his own primary state. This balance should be at a higher level than the one prevailing before the commencement of conquests by him.
External expansion is a function of the internal power equationa though wars are launched by kings and not by states. If the Rajaprakrti is not held back by internal imbalance in its relations with the dravyaprakrtis of the primary state, the svami can become a conqueror (vijigishu) and then as a chakravarti, the head of a confederation of states. He should have a clear grasp of what constitutes an economic gain and what are not pure gains. Such conquerors are mostly charismatic leaders and do not enjoy traditional legitimacy in their own primary states or rational legitimacy either having not been born in royal families or elected or approved by elected representatives of the nobles and the commoners.
Pure Gains and Impure Gains (Bk.9 Ch.7)
Apadartha are dangerous gains and anartha are self-destructive gains while samsaya denotes doubtful gains. If an economic gain to the conqueror increases his enemys prosperity by ridding him of his liability or if it is returnable as pratyadaya or if its retention leads to loss of wealth or power for the conqueror, it is dangerous gain. For instance, a buffer zone may expose, when gained, the vijigishu to a powerful enemy who would have otherwise hesitated to enter it or ignore it. When a defeated king is prepared to accept the vijigishus suzerainty, if the latter annexes his territory, it will be a dangerous step, as it will annoy the entire circle of states (mandala) most members of which are his rivals. Certain gains may cause trouble from the enemys ally or from the rear-enemy.
An acquisition which threatens the conquerors standing with respect to his own population and to his divyaprakrtis (bureaucracy, rural areas, capital city, treasury and army) (which enjoyed the protection of the house of nobles, devas) is self-destructive. Most conquerors depended on newly raised troops and not on their small standing armies and did not have unlimited access to the treasury which was controlled either by the house of nobles (sabha) or the civil administration directed by the house of the representatives of the people (samiti). It may be approved by the circle of states (mandala) of which he is a member but not by his own Rajasampada (that is, by his political guides and counselors and his group of experts in foreign affairs and committees of officials gathering crucial intelligence). It may arouse internal rivalry making him vulnerable to external threat. Some gains may be beneficial in the beginning but later turn to be dangerous or self-destructive and some gains may be inexpedient at first but later prove to be beneficial. These too are doubtful gains.
The Arthasastra then outlines the course of action for effective control over the mandala (comprising the territories of the conqueror, his friend, his enemy, the neutral king and the distant indifferent king, svami, mitra, amitra or ari, madhyama and udasina) through the application of artha and anartha gains. The vijigishu is advised against exploiting other territories in a manner that would unsettle the political order in his state. He may be accused of being greedy and violating conventions. His acquiring economic power in addition to political power may be resented by other economic interests and by his ministers. New wealth has to be of optimum size to be held effectively as personal land, svabhumi. The gain has to be commensurate to the outlay as in economic enterprises.
If he is not a natural vijigishu in the mandala scheme, acquisition of wealth itself will place him in a dangerous position. For the natural vijigishu (svami), the enemy (ari), the madhyama and the udasina are superpowers and not the ally (mitra). A fifth king trying to play this role which any of the other four may do endangers his own position. [Historians may reinterpret the developments during the recent centuries as well as of the medieval times in the light of this theorem.] In the case of the vijigishu, the expedition must enable him to consolidate his position and hence only pure gains must be sought by him.
The pure gains are divided into three types: artha (material), dharma (cultural) and kama (sensual). (9-7-70) The purely material gains (artha-artha) should be preferred to the other two, Kautilya says. He recommends and allows conquest of lands and acquisition of wealth. [It may be noted here that the Mahadeva and Prthu constitutions that were in force when the Mahabharata war took place did not permit these though they did not object to a king embarking on expeditions against other kings to prove that he was superior to them in valour and might.] The demand for acceptance by the conquered of the cultural practices and faith (dharma) of the conqueror is neither visualised nor advocated. There were no wars to spread religions.
The vijigishu was interested in becoming a rich and powerful emperor controlling the chakra (confederation of states comprising over fifty states or janapadas). He was not aiming at being honoured for having done noble and good deeds. He was not a missionary. Dharma-artha was not rejected as a desirable objective. But the work of liberation of peoples from evil ways and from misery was given a second place compared to the objective, becoming a superpower, politically and economically. Great wars were never wars of liberation. The least preferred was the gaining of women and sensuous objects. Similarly, self-destructive (anartha) gains are of three types, economically harmful (anartha), immoral (adharma) and causing grief (soka). [The two great epics, Mahabharata and Ramayana and those of Greece and Rome may be re-examined in this light.]
Success in war is achieved by a combination of the four stratagems (sama, dana, bheda and danda). There are fifteen different combinations of these, Kautilya points out. He explains that dharma is the basis (mula) of artha and kama is the fruit of artha (9-7-81). Despite his being an advocate of economic determinism (artha eva pradhana), Kautilya does not go against this stand of the commoners. His approach is not heretical though he may be heterodox. Pursuit of wealth must be rooted in morality and noble cultural values (dharma). If the acquisition of wealth promotes all the threedharma, artha and kama, it leads to the satisfaction that all has been achieved (siddhi), Kautilya says.
Three Types of Conquerors
The path of the vijigishu like that of the entrepreneur is not paved with roses. He has to often face a stronger opponent and suder. Even such surrender is a strategy. The weaker king must wait for the next opportunity and meanwhile retrieve his position in the mandala, circle of states. (Bk.12 Ch1) Kautilya distinguishes three types among the conquerors: dharmavijayi, lobhavijayi and asuravijayi. [It may be remarked here that Kautilya was building his theorem on the basis of the traditional trilateral distinction among the ruling elite, the nobles (devas), the plutocrats (yakshas) and the feudal lords (asuras).]
The dharmavijayi adopts the accepted notions concerning the duties of the conqueror. (He is not a religious crusader.) Even in war, he follows the laws of ethics and morality. He will be satisfied with mere obeisance and the weaker king will seek his protection. An agreement of peace may be safely entered into with him.
The lobhavijayi, the greedy conqueror, is satisfied with gifts of land and wealth. Battle of intrigues, mantrayuddha, is useful in tackling him. The asuravijayi lets loose terror on the entire kingdom and seizes land and treasure and women and may even kill the defeated king. He deserves to be killed, even by treachery, if necessary. (12-1-1 to16) The dharmavijayi is not a crusader, not one who proselytises through sword. He does not exploit the conquered lands.
The conquerors expeditions may be in sparsely populated wild tracts or in thickly populated areas. (Bk.13 Ch.5) The territory annexed may be new (navo) or originally belonging to him (bhutapurva) though now in the hands of others or inherited from his ancestors (pitraya) but in the hands of others (especially his kinsmen). When he acquires a new territory, he should conduct himself in such a way that he is perceived to be better than the earlier ruler. He should observe the rules scrupulously, bestow rewards and remit taxes. He should follow the advice of the local leaders and fulfil the promises given. He should try to be one with the local people culturally, observe their festivals and amusements. The local leaders of the villages, communities (jatis) and guilds (samghas) should feel that they are repected by him. He may abolish harmful (economic) practices and introduce better ones. [Kautilya does not permit the conqueror to dabble with the faiths of the local population.] Unreliable officials may be transferred to remote areas without being vindictive.
Chakra: Confederation of States
The chakra (wheel) scheme is based on the conflict between two confederations, sva and para, that of the conqueror and that of his rival. Each chakra has control over a number of regions (desas or janapadas) which enjoy different levels of autonomy. This causes internal strains endangering its very existence. The enlargement of the primary state leads to the emergemce of two super-powers equally poised and all the small states are absorbed in one or the other. The disputation between Kautilya and the Acharya in Bk.Ch.3. takes place as the charismatic leader, purusha, has emerged as the head of one of the two chakras waiting for a final showdown. Kautilyas internal reorganisation and safeguards and also his grip over the chiefs (mukhyas) are a prelude to this showdown dwelt on in Bk.Ch.4. When there is internal trouble in the confederation, the ruler resorts to punitive taxes. Still it is not possible to remove the afflictions of the chakra.
Controlling Internal Dissensions
The Acharya argues that internal revolts cannot be put down through force. On the other hand, the threat from the inimical chakra can be warded off through retaliatory war or an agreement of peace, he says. But Kautilya rules out the possibility of any agreement of peace between the two confederations (chakras) at this stage. The enemy will cause sufferings through plunder, slaughter, arson and destruction and all the areas (sarvadesas) will be affected, he warns. It is a total war between two recalcitrant opponents. But in a civil war only one region is affected, he says. The chief leaders (purusha mukhya) of the constituent (prakrti) which revolts can be won over or destroyed and control re-established.
As the primary state establishes control over the conquered areas and brings them under its chakra, their chiefs are reinstituted by Kautilya. The earlier methods of administration are not disturbed. Only their foreign relations and the right to enter into treaties are controlled by the overlord. Punitive measures are not the only methods to ensure subordination of these chiefs. Hence the threat from the rival confederation is more serious and is perpetual. It is directed against all the areas in the chakra (confederation) of the vijigishu, Kautilya explains.
Within the chakra, the peoples (prakrti) may have differences and this is an open invitation to the enemy to invade it. The reinstated king and the overlord may have differences. Since, in the confederation, dual authority is exercised in every region, the people are benefited doubly in wages and remission of taxes, the Acharya notes. He witnesses how in their eagerness to win over the masses, both the overlord and the subordinate king patronise them.
Kautilya notes that the Acharyas approach only indicates that the latter holds the attempt to establish a confederation is futile and does not lead to the emergence of a rich state. The Acharya was of the view that the confederation of the type advocated by Kautilya did not establish emotional integration among the peoples of the different regions and between the chakravarti and the vassals and their subjects.
Kautilya argues that by winning over the chiefs of the peoples of the conquered areas this impolicy with respect to disturbed areas can be ended. He does not resort to force to put down inter-people quarrels within the chakra. They can be used to advantage by the overlord. (Divide and Rule policy). But the quarrels between the kings (who have been made Isvaras, administrators because of their popularity) result in harassment of the peoples and it needs double the effort to settle them.
Whether the quarrel is between a subordinate king and another like him or between him and the overlord, the people suffer. The settlement of differences is not easy. Kautilya does not advocate the notion of a unitary state. He prefers dyarchy of the chakra (confederation) model. The entire Indian subcontinent from the Himalayas in the north to the seas in the south was to be brought within one such confederation of states by the Svami, the charismatic leader and vijigishu.
KAUTILYA AND THE FOUR BASES OF ARBITRATION
King (Raja) as Dharma Pravartaka (3-1-38)
The concluding verses of this chapter describe the policy that the judges have to adhere to while settling disputes. Modern Indian jurists have discussed threadbare the implications of these verses and yet it requires fresh attention. For, Vishnugupta, the later editor of the Kautilyan Arthasastra had preferred not to present these verses in prose formulae and had allowed them to stand as the great political thinker, Kautilya, had formulated several centuries earlier.
Shama Sastri translates the verse 38 as: In view of his power to uphold the observance of the respective duties of the four castes and the four divisions of religious life and in view of his power to guard against the violation of dharmas, the king is the fountain of justice. Kangle translates as: When all laws are languishing, the king here is the progenitor of laws, by virtue of his guarding the right conduct of the world consisting of the four varnas and asramas.
Kangle was closer to the mark but he erred as he translated dharma as law and dharmapravartaka as progenitor of laws. It is imprecise to equate dharma with law or justice or religion or charity. Shama Sastri erred in translating varna as caste and asrama as division of religious life. It is not proper to describe the king as the fountain of justice or as the promulgator of laws.
The Kautilyan King (raja) was not a judge. He was an executive who upheld dharma, the social code, the principles of the socio-political constitution by which the rights and duties of the individual had been instituted in accordance with ones socio-economic class (varna) and stage of life (asrama). The great sages (appointed by the first Manu, Svayambhuva) who were also chiefs of the peoples (prajapatis) had drafted this code and Manu Vaivasvata had ratified it. It outlines the dos and donts and is a social rather than a religious code. It was man-made and not god-sent. The judges were required to settle the disputes keeping themselves within the limits of the authority given to them by the state. The King had no authority to lay down new social or economic laws. Of course he could not promulgate religious laws.
It is wrong to introduce the British view of jurisprudence that all powers were originally vested by the Almighty in the King (His representative on earth) and were in due course shared with or delegated to the representatives of the people by the King. The European Indologists of the 19th century interpreted ancient Indian works from the classical western angle and their Indian admirers adopted the same angle in their eagerness to make Hinduism acceptable to western Christian liberal democracy.
In Hindu Jurisprudence, the King was not a sovereign at any stage. He was only the chief executive of the state and was subordinate to the social constitution based on the principles of Dharma. He was not a legislator or a judge. [It may be noted that we use the term Hindu to indicate the post-Vedic society and its traits and outlooks.] The king might pass directives (raja-agnya) but he could not prescribe dos and donts for any class (varna) or stage of life (asrama).
Kautilya, though he was not an ardent champion of varnasrama dharma, agreed that the King should protect the codes of conduct prescribed for the four classes and the four stages of life. The society had accepted them and they were in vogue. This code was a consensus arrived at by the great sages who belonged to different schools of thought and represented different sections of the larger society. The King could not alter its provisions or annul them. He had the power and duty to protect it and implement its provisions.
Kautilya however accepted that the King would intervene and exercise his powers only when there was a total collapse of this socio-political constitution. When all sections of the social world (loka) (that is, the commonalty) drift away from the code of conduct prescribed for them in accordance with varnas and asramas, that is, when all the dharmas face extinction, the King as upholder of dharma can and should restore order (38). [This is in line with Krishnas stand in the Bhagavad-Gita.] Even at this stage he cannot pronounce new dharmas, new approved ways of life. He cannot intervene until that critical stage is reached.
Dharma is not to be equated with Faith or Belief in God or an Ultimate, which is the basis of Religion. It is a social code when it is based on Trayi, (the Three Vedas, Rg, Yajur and Sama) It is a political code when it draws sustenance from the fourth Veda, Atharva.
Manusmrti (11-33) treats Danda, the coercive power, vested in the king as being subject to Dharma, the constitution of the state as outlined by Angirasa and Atharvacharya (main authors of Atharvaveda).
It is not proper to presume that Dharma is what God has ordained. It is what has been defined, described and prescribed by the great sages (maharshis), by the chiefs of the people (prajapatis) as ways of life best suited for social equilibrium and for the development and progress of the individual as well as the society. [It is not rational to describe the King as the Defender of the Faith which a Christian ruler was authorized by the Pope to be or which a Christian king claimed to be. Such a wrong interpretation was encouraged by the British rulers of India and followed by many of the Indian scholars of the 19th century.]
Kautilya insists that while protecting the codes of conduct practised (achara) by the people of this social world (loka) who have accepted the scheme of four classes (varnas) and four stages of life (asramas), the King must ensure that the dharmas prescribed for all (sarva) do not get extinct (3-1-38). It has to be noted here that the concept, sarva dharma is misunderstood and misused nowadays.
Sarva dharma means the codes of conduct prescribed as common to all human beings, irrespective of their social status, economic pursuits, age, sex and creed. Kautilya has used it in this sense and not as all religions. Dharma is not to be equated with achara. It means more than the social practice in vogue. It is socially, morally and ethically right conduct, the ideal to be brought into practice. A large section of the society was not governed by varna and asrama codes. Many had not yet been assigned to any class (avarnas) or belonged to mixed classes (samkaravarnas).
Kautilya felt it necessary (even as Manusmrti did) that certain duties should be made obligatory for all. Varnasrama Dharma had not then provided for such universally accepted duties. It was not comprehensive though theoretically every man or woman could be assigned to one or the other of the four varnas based on his or her vocation (karma) and innate trait (guna) and aptitude (bhava).
Every one whether assigned to one of the four classes or not passes through the four stages of life though the duration of each stage varies according to his or her class. In reality the earlier code had recognized only the right to subsistence rather than livelihood and to sex (preferably within the folds of marriage).
Even modern states do not in the ultimate analysis go beyond this. Autocrats too do not deny these rights to their subjects. In other words, among the four pursuits and values of life (purusharthas), artha and kama were open to all while dharma and moksha were not. The sarva dharma scheme (of Kautilya and also of Krshna) has to be examined against this background of the inadequacies of varnasrama dharma. It supplemented and not superseded the latter.
Non-violence (ahimsa) and adherence to truth (satya)
Every citizen was required to refrain from violence, to practise ahimsa, non-violence. The king had the right and duty to intervene to prevent violence. The state assured protection to the body and life of the individual. It could not inflict corporal punishment or capital sentence. The lower courts could not pronounce these penalties. There could be no trial by ordeal. They could only fine the culprits or order their imprisonment. Only the king could, as a last resort, after all other punishments had failed to deter the anti-social elements, award corporal punishment or order execution of death sentence. (Of course, Brahmans and women were exempt from these too.) Next in importance is the call to adhere to truth (satya). Perjury was frowned upon. The courts had to ensure that truth prevailed. Neither wealth nor birth in a high family could be allowed to affect this directive.
A third rule which both Dharmasastra and Arthasastra (and in fact other schools of thought too and all creeds) insisted on was observance of purity (shoucham). Uprightness was expected in all. Corruption and adultery invited severe punishment. [Shoucham was later interpreted as personal hygiene. It led to physical distance and then social distance and the evil of untouchability.] The codes, Sastras, had given it a wider and just meaning, purity of intent, thought and deed. The judiciary had to be alert. The state had to put down corruption and evil intents.
While Manusmrti took serious note of thefts and violations of the rights to property and called for observance of non-theft (asteya) as a duty of every individual, Arthasastra goes to the basics and treats entertainment of jealousy (asuya) as a serious flaw. It calls for absence of jealousy (anasuya). [It may be noted here that assignment of an ineligible person to a particular poat or rank or class was meant by the term, asuya. It evoked jealousy. The codes insisted on avoiding such asignments.] Jealousy leads to domestic and social unrest. The state has the duty to remove the causes of jealousy.
Manusmrti abhorred licentiousness and called for self-restraint. Arthasastra calls upon all to show compassion and forbearance. The king has to ensure a society and a judicial process imbued with this spirit. [The tendency to present Kautilya as an immoral, merciless and crooked political counsellor is to be deplored.] Kautilyas King is an upholder of Dharma, in a broad sense. He was not the head of a theocratic state. Even the king of Manusmrti did not preside over a theocratic state.
Dharma, Vyavahara, Charitra and Rajasasana (3-1-39,40)
Perhaps no other statement of Arthasastra has attracted the attention of the modern Hindu jurists so much as the couplet 39. Still it needs deeper examination and calls for a refusal to treat modern western jurisprudence as the standard one against which ancient Hindu Law should be adjudged. The judges trying economic disputes will be able to give balanced and authoritative verdicts only if they bear in mind the comparative authority of the four bases (chatuspada) of wrangle (vivada), dharma, vyavahara, charitra and rajasasana. Of these, the latter authority supersedes the earlier one it is stressed.
This stand has led to severe condemnation of the Kautilyan dictum as glorifying the State, the temporal authority and as undermining the importance of Dharma and spiritualism. Kautilya has also been criticized for holding Artha to be more important than Dharma.
Some scholars have welcomed the subordination of religion to State and material needs. These critics do not have a correct appreciation of what is meant by Dharma. The former groups of scholars too have not been precise in their definitions of this term. Both groups do not have a proper insight with respect to Kautilyan policy and what he meant by Dharma. Every one of the four bases needs clarification and further guidance.
The next verse (40) provides these clarifications. Dharma is based on Satya (truth) and Vyavahara on Sakshi (witness). Charitra is based on the views of the Samgraha (assemblage of elders, pumsa). The Kings order (Agnya) is called Rajasasana. These clarifications were issued to the judges and magistrates at all levels.
Shama Sastri translated the four terms as Sacred Law, Evidence, History and Edicts of Kings. Jolly translated them as Virtue, a Judicial Proceeding, Documentary Evidence and an Edict from the king. K.V. R. Iyengar read them as Truth, Matter in Dispute, Customary Law and Kings or Court Order. He tended to restrict the application of the Kautilyan dictum to the courtroom, to the bar and the bench. Kangle translated them as Law, Transaction, Custom and Royal Edict. Scholars have differed from one another on what was meant by Dharma as the above statements show. But they had refrained from translating it as Religion. Some others have presented it as Justice. It has to be stressed that by the term, Dharma, Hindu thinkers do not mean Religion. Religion calls for faith in and obedience to a supernatural power.
Shama Sastri translated the term, charitram as history. Jolly went off the mark when he described it as documentary evidence. Kangle understood it as custom based on commonly held view of men. Some commentators of Brhaspatismrti treat it as: Whatever is practised by a man, proper or improper, but is in accordance with local usage is called charitram, custom. The Kautilyan dictum declaring the comparative superiority among the four authorities (cited by a litigant in his defence) gave a fillip to Hindu Jurisprudence and it was later developed within the narrower circle of a lawsuit. Modern jurists have wrongly bypassed its implications.
P.V.Kane points out that Yajnavalkya represents on numerous points of law, a very great advance upon Kautilyas doctrine and that Kautilya does not contain distinct direction upon the four stages of lawsuit (plaint, reply, proof and judgment) nor upon the threefold aspects of proof (documents, witnesses and prescription). We would point out here that Kautilya was a contemporary of Katyayana, brother-in-law of Yajnavalkya. Katyayana was an economic advisor to Dasaratha of Kosala while Yajnavalkya adorned this chair in the court of the Janaka of Mithila. Kautilya cannot be treated as not having made any contribution to Hindu Jurisprudence.
A.S.Nataraja Iyer says: Narada, a later jurist, who adopted Kautilyas ordering used the four aspects, dharma, vyavahara, charitram and rajasasana, as the four feet of vyavahara and not of vivada. Naradasmrti was post-Kautilyan but Narada was a senior contemporary of Kautilya. Kautilya was not a jurist. He was a dialectician trying to reconcile differences. According to Katyayana, a colleague of Vasishta, Kashyapa, Bharadvaja and Pisuna (hence of Kautilya), dharmanirnaya signified disposal of dispute on the admission of the defendant who desired to stick to dharma. Vyavahara was disposal in the regular course after the parties had joined issues, and charitra was disposal in accordance with the usage of the community (regardless of conformity with the sastras) and rajasasana was Kings order.
Brhaspatismrti meant by dharma, dharmanirnaya which would be adjudication with reference to probabilities on oath (by both parties) as a result of ordeal. Vyavahara would be adjudication on the evidence of witnesses and documents, while charitram would be adjudication on circumstantial evidence or usage. Rajasasana implies adjudication by the king without the aid of these means or in defiance of sastras or the advice of the councillors. Like Naradasmrti it was a considerably later work though Brhaspati was like Narada senior to Kautilya.
The Four Bases
When in a dispute that has come up for adjudication by the court, if both the parties accept what is known to be the truth (satya), the dispute ends. There can be no two sides to the truth. But it is a tall order to expect all to abide by truth. Dharma is Satya and Satya is Dharma, the Upanishads declare.
Truth has to be declared on oath. Bringing out truth by ordeal is not recommended. Dharma, as far as court proceedings are concerned is based on truth and not on compassion or a charitable disposition. It does not permit compromise. Perjury attracts severe punishment. Hence most adhere to truth.
It is necessary here to note that social, economic and political relations during the early and middle Vedic period were based on the principles of Rta. These principles held that every man (and every being) tries to protect himself (or itself) in a system where only the fittest can survive and where might is right. During the later Vedic period when the organized state came to the fore the laws based on Satya came to the fore. These laws held that truth should prevail over might. By the end of the Vedic period, the principles of Dharma were outlined. They called for an end to this confrontation between Rta and Satya and for a system based on consensus and just compromise. The Upanishadic sages were eager to establish that the two codes, the liberal one based on Dharma and the stringent one based on Satya did not contradict each other. (Kautilya was on the scene when this reconciliation was effected.)
In all legal proceedings on issues that were not strictly economic in nature, the codes based on both Satya and Dharma prevailed. These codes were not as liberal as the ones based on Dharma were nor as puritanical as those based on Satya were. Of course, they would not be permissive like the codes based on Rta were. The disputes in question were socio-cultural rather than socio-economic in nature and origin. (It is not sound to treat the expression, socio-cultural, as referring to religious practices.) But most of the disputes that came up for adjudication before the Kautilyan court were
economic in nature.
What is spoken or acknowledged may not always be the truth, though most men generally speak the truth and are conscientious, and are willing to abide by it. If the facts are not obvious and are disputed, it becomes vyavahara. Then witnesses are to be called in and examined. This procedure is laid down for the village courts (samgrahana) and county courts (dronamukha). Kautilya recognizes the difficulties in producing witnesses. But no transaction is valid without the presence of and endorsement by witnesses. It has to be in the open and not in secret. At this stage mere declaration on oath is not enough. This does not mean that dharma has been superseded or set aside. The question of probability and the issue of reliability of the witnesses come to the fore. The bench has a real job on hand in this case. In the earlier case, where the issue was dharma it just watched while the two parties agreed to abide by truth and it was more a facilitator rather than an active arbitrator.
Sometimes the dispute pertains to who has been in possession of a particular property over a long period and it cannot be decided on oath or even by weighing the statements of the witnesses (that is by affirmation or by attestation). Then the elders of the community are to be called for a meeting (samgraha). [Most of these meetings took place at the headquarters of the union of villages. They dealt with inter-village and inter-clan disputes.]
They are asked to state the position as known to them. The bench cannot give a verdict without consulting them. The opinion of the elders on the traditional ownership of the property in dispute will be binding on all. The bench may try vyavahara cases but has no power of discretion or option where dharma or satya clinches the issue or where the elders of the community pronounce their stand.
The bench cannot set aside the orders issued by kings (present or past) by which, certain families or individuals have been assigned or granted particular lands or facilities. The judiciary is not above the society and hence it has to respect the views of the elders. It is also not above the state. [These elders (pitaras) had retired from all economic activities and no longer entertained any economic interests though they were solicitous of the welfare of their children.] The edict has to be called for and neither party can question its validity. This is the only logical interpretation that can be entertained in the light of the economic disputes described in the earlier statements (3-1-1to 37).
There was no conflict between the state and the judiciary or the religious authority with the issue being decided in favour of the state. The issue was about the status and role of the judiciary. It was not expected to function as a power superior to the king or to the society.
Impartiality and the King's Duties (3-1-41,42)
[The verse 41 presents the viewpoint of the commoner and may be a later interpolation.] If the subjects (praja) are protected in accordance with dharma (that is, the personal duty, svadharma, of the king, raja) the king will attain heaven (svarga), that is, he will become eligible to be admitted to the aristocracy. If he fails to do so or causes injury with his rod (danda) the contrary will happen, he is warned (41). [He is warned that though he may be born in an aristocratic family he may lose his status and be treated as but a commoner without any special privileges.] He is asked to realize that that only is danda, which protects (raksha) the other (para) social world (loka) and this (imam). [He has to protect the interests of the two social worlds, commonalty and patriciate, to whichever social world he may belong. It is imprecise to interpret this clause as implying that the king is superior to the commonalty as well as to the nobility.]
His authority to use coercive power against the disobedient persons would stand withdrawn if he failed to protect both his friends and his opponents. He is told that if he is arbitrary and cruel in his use of coercive power (danda), he stands to lose his present position. This admonition is for the judges too. They have to be impartial.
The king is asked to treat all accused on par, whether it is his own son (putra) or an enemy (satru) (42). Impartiality is expected of the king and also of the judges. The Kautilyan scheme did not provide for appellate courts. Whether he belongs to the nobility or to the commonalty, the king has to treat both on par.
Dharma, Vyavahara, Samstha and Nyaya (3-1-43)
Shama Sastri translates this couplet as: The king who administers justice in accordance with sacred law (dharma), evidence (vyavahara), history (samstha) and edicts of kings (nyaya) which is the fourth, will be able to conquer the whole world (mahi) bounded by the four quarters. He was imprecise and failed to recognize the difference between charitra and samstha and similarly between rajasasana and nyaya. Kangle translates it as: For a king, giving decisions in accordance with law (dharma), transaction (vyavahara), settled custom (samstha) and edict (nyaya) as the fourth, would conquer the earth up to the four quarters. [We have to bear in mind the 20th century Indian translators of Kautilyan Arthasastra have been influenced unduly by the western Indologists who did not have a correct picture of the ancient Indian social polity.]
Kangle too failed to recognize the differences. Both have hesitated to face the implications of the differences underlying the two couplets, 39 and 43. Kangle explains it away: It is possible that the difference in terminology stems from a difference in source. He holds that by dharmena, dharmasastra law is meant. Samsthaya is probably the same as charitra, he says. Some versions have lokachara, he notes. The compiler had not drawn on a second version of Kautilyas dictum.
There was a basic difference between the two contexts. In 43, the King (raja) does not feature. The instruction given is to the conqueror of all the agricultural tracts (mahi), to the mahipati who is a ruler of agricultural lands. He is not empowered to proceed by the declaration of the elders on who was the traditional owner (of the land or property in dispute) and is not expected to honour the orders of the earlier kings (whom he has dethroned). [Rural areas threw up several disputes over lands and their boundaries as seen in Manusmrti.]
The disputes referred to in 3-1-43 pertained to economic organizations and institutions (samsthas) like corporations (srenis) and guilds (samghas). The disputes referred to in 3-1-39 were within the same family or between families, mainly in the rural areas, though these too were economic in nature. They were however localized and disposed off quickly on the basis of affirmation or attestation or opinion of the elders or the kings directive. The objective was to minimize litigation.
Not much of principles of jurisprudence were felt necessary to deal with family disputes over property. But economic institutions could not be disposed off easily. They were powerful and could keep the state at bay. Unless a procedure acceptable to both the contending organizations was adopted, the king would not succeed in his object. He would not be able to exercise his suzerainty even within his territory. This procedure, which was not necessary in family disputes, is explained in the couplet 43 and the ensuing couplets.
The basic courts that met at samgrahanas (village union level) and at dronamukhas (tahsil or county headquarters) must have adopted the procedure described in 39 and 40. But the courts, which met at the district (pradesa or sthaniya) headquarters and at the intersections of regions (janapada samdhis), were required to follow the procedure indicated in 3-1-43. These were not appellate courts. They had original jurisdiction. Of course, the basic principle and comparative superiority of the succeeding among the four authorities, dharma, vyavahara, charitra and rajasasana, was not to be lost sight of by any court.
Verdicts could not be based on political expediency or be subjected to arm-twisting by powerful economic bodies. The judiciary had to be independent, fearless and impartial.
In the higher courts, nyaya held sway and not the kings executive diktats (rajasasana). Jurisprudence had to be on its toes and not on its knees. Rajasasana was not a judicial verdict. The king was not a judge. [The British rulers of India were eager to float the concept that the emperor was the highest judge and that rajasasana, the kings edict or charter or verdict could not be questioned even as it was in ancient India. A deliberate misdirection seems to have been effected while providing commentaries on these couplets.]
Rajasasana was an executive order, which the village and tahsil courts could not set aside or ignore. The kings had given charters in favour of some of their supporters or to appease some rivals and detractors. These could not be challenged without inviting revolt. Nyaya techniques were not unknown to Kautilya who had mastered samkhya and yoga. These did not deal with the above sensitive political disputes.
Samstha and Dharmasastra, Sastra and Vyavahara (3-1-44)
Shama Sastri translates this couplet as: Whenever there is disagreement between history (samstha) and sacred law (dharmasastra) or between evidence (vyavahara) and sacred law (sastra), the matter shall be settled (nirnaya) in accordance with sacred law (dharma). This translation grants dharmasastra and dharma roles not intended by Kautilya and is in conflict with couplets 39 and 40 mentioned above, which treat Dharma procedure as nothing more than adherence to truth. Kangle translates it as: He shall decide with the help of law (dharma), a matter in which a settled custom (samstha) or a matter based on a transaction (vyavahara) contradicts the science of law (dharmasastra). This translation is imperfect.
According to the text (44), when there is a contradiction between samstha and dharmasastra orbetween sastra and vyavahara, the matter shall be decided in accordance with the intent of dharma and not by the letter of dharmasastra. The spirit behind dharma shall prevail and not the wordings of the codes. This aspect has been lost sight of by translators and critics of Arthasastra. Kautilya does not allow any code, sastra, to subvert dharma. What is the intent of dharma?
Where the intent of the constitution of the organization, samstha, (to which the plaintiff and the respondent both belong and which has laid down its own economic regulations) is not clear, the intent of dharma has to be ascertained and followed as authoritative. Dharma is not identical with what is described in dharmasastra, the socio-cultural constitution of the four-fold society, as rules for the resolution of economic disputes (vyavahara).
The court has to resolve the contradictions between the provisions of the constitution of the particular economic organization, corporation or guild (sreni or samgha), and those of the constitution of the general society (that is, the contradictions between the constitution of the economic institution, samstha and dharmasastra). Similarly, it has to resolve the contradictions between the constitution of the politico-economic organization (state) as described in the Arthasastra or Nitisastra or Vyavaharasastra and the economic practices in vogue, vyavahara. The resolution of these contradictions had become imperative because diverse economic interests were operating in the expanded and integrated janapada.
The bench had been constituted for this specific purpose, namely, reconciliation of ideals with realities and adoption of a pragmatic approach so that the intent of dharma was not lost sight of while pursuing material gains. Strict adherence to the letter of dharmasastra may result in rejection of the constitutions of the samsthas. Kautilya did not intend this to happen. He would appeal for adherence to the more basic and acceptable concept, dharma. This dharma is the constitution of the state as acknowledged by Manusmrti (11-33) and is superior to danda or the coercive power vested in the king. It has been outlined in the Atharvaveda. It overrules all sastras (dharma, artha, niti and vyavahara) edited during later periods. This code, sastra, in its authoritative form was not available even to Kautilya.
Kangle opines: The idea is, when Samstha or Vyavahara is in conflict with dharma, the latter prevails. True, dharma prevails, but the conflict is not between samstha and dharma or between vyavahara and dharma.
All social and economic constitutions are subordinate to a higher concept, dharma, which stresses, non-violence, truth, purity, absence of jealousy, compassion and forbearance. The state is bound to follow it and so too, every organization and group and every individual.
Kautilya accepted dharma. He did not prevaricate on the issue of its supremacy. He was however heterodox and pragmatic when he claimed that artha was superior to the other two values, dharma and kama. But he did not accept the then extant codes on dharma, as they were imperfect. He was a dialectician who applied the techniques of samkhya to cull directly from the three Vedas (Rg, Yajur and Sama) what constituted dharma and what was its opposite, adharma. So he advised that the techniques of the nyaya system of adjudicating and rendering verdicts should be adopted for resolving all disputes and conflicts.
What appears to be correct and just, as the process of rigorous reasoning is gone through is nyaya. [The king has to be impartial between his supporters (svapaksha) and others (parapaksha). Hence when there are conflicts among rules and codes, he should not pass any executive orders.] Nyaya (which is not edict or rajasasana) should be allowed to take its own course. The king has to await the findings of the judiciary. Kautilya wanted unanimous and authoritative verdicts from the independent judiciary. They should be based on Nyaya, principles and procedure of justice.
(Nyaya was not a theoretical system of logic only. It was intrinsically related to the social values cherished by all, especially by the sober and impartial intelligentsia.) The King presided over the bench but could not veto its decisions. He had no vote either. The Kautilyan king did not and could not control the judiciary.
Sastra and Dharmanyaya (3-1-45)
Shama Sastri translates this couplet as: But whenever sacred law (sastra) is in conflict with rational law (dharmanyaya), then reason (nyaya) shall be held as authoritative (pramanam) for the original text (on which the sacred law has been based) is not available. He equates dharmanyaya with kings law. [It is apparent that there was an attempt to pull down the importance of dharmasastra texts by claiming that they were not the original ones, which commanded the respect of the ancients as incorporating sacred law. It was also attempted to install in its place the authority of the British Privy Council.]
Kangle translates this verse as: Where (a text of) the science (sastra) may be in conflict with any edict in a matter of law, there the edict (nyaya) shall prevail; for there the written text loses its identity. Shama Sastri tries to establish that the method of reasoning has to be resorted to, as the original text is not available. Kangle proceeds on the assumption that what the king pronounces is nyaya and is binding and not the sastras. Kautilya did not intend this. There were verdicts (nirnaya) given earlier by councils (parishads) convened to define dharma so that doubts might be erased. But even these verdicts might have been in conflict with the versions of codes (sastras) available to courts.
These parishads (constituted under clause 12-111 of Manusmrti) had ten members of whom two were experts in the nyaya system comprising hetu, tarka and nirukta. The verdict given by this parishad under the provisions of dharmasastra was treated as dharmanirnaya. Hence earlier verdicts could not be applied mechanically while trying the dispute on hand. Kautilya advises the court to follow the technique of nyaya (a separate discipline like samkhya) for resolving this conflict also. He emphasizes reason and rejects precedents, which are described in the (three) Vedas. [Breloer inferred that the judge was thus given opportunity to build up new legal sentences outside and even contrary to the holy law. This freedom was what the Protestants who sought to escape from the authority of the Roman church wanted. Kautilya should not be equated with these Protestants.] Dharma does not imply holy law. It is a set of principles agreed to by all sections of the civilized society. Dharmasastras too were secular compositions and could be questioned and amended by parishads constituted for this purpose.
Each of the three Vedas had one representative on the parishad. The three stages of life, brahmacharya, grhastha and vanaprastha had each one representative. There was one expert each for the four disciplines, hetu, tarka, nirukta or etymology and dharma. Even the verdict of such a body may have to be subjected to further scrutiny by the process of reasoning, nyaya, by the bench, if it is in conflict with the code. The dharmapataka must have followed a particular text. It could not be vouchsafed by any one (even in Kautilyas times) as the authoritative text.
Who can vouchsafe that the present edition of Manusmrti was the original one prepared by the ten Prajapatis nominated by the first Manu, Svayambhuva? During Ramas times, the dharmasastra text prepared by Vasishta and authorized by Manu Tamasa was in vogue. The one composed by Bhrgu (authorized by Svayambhuva and endorsed by Vaivasvata) insisted on nyaya. The issue was between what was reasoned and hence just and what was unalterable fact (satya). Kautilya stresses the value of the former for the higher courts and that of the latter for the lower courts.
Sastra and Vyavahara
If there is a conflict between the text of the code, sastra (whether dharma or artha), and the rules governing economic transactions, vyavahara, the basic principles underlying dharma may be referred to for guidance. In major economic disputes, the verdict of the relevant economic organization, samstha, was binding. But in minor ones, the opinions of the elders clinched the issue on traditional or longer ownership. But if the verdict of the samstha clashed with dharmasastra, nyaya techniques that included all courtroom formalities had to be resorted to.
The samstha had been approached because there was a conflict between the code and the wordings of the document pertaining to the actual transaction. There was a conflict between principles and practice (in economic affairs). Here the appellate body was the samstha. It was not being proceeded against. It was not a judiciary unlike that latter appellate body which discussed the validity of the verdicts given by earlier courts as setting precedents.
The decisions of the samstha could be appealed against, but not those of the bench comprising three dharmasthas and three amatyas. The samstha (chambers of commerce or corporations of financiers or guilds of workers) could be appealed to and appealed against. But the courts could be only appealed to by the aggrieved party and not appealed against (even to the king). The parishad (council of ten scholars) too could be appealed to and appealed against. The Bench of six members was a tribunal from the point of view of dharma as well as that of artha. It could be appealed to and not against.
Rajasasana was an executive order. It was not a judicial verdict. It could be set aside, only by another order of the same king or of his successor. But a judicial verdict could not be set aside by a ruler, though it may be re-examined by a court of the same standing. Courts refrained from setting aside royal edicts. The court of three dharmasthas and three amatyas however was autonomous, though it was constituted by the state. It followed the nyaya technique.
The Judicial Process (3-1-46,47)
Shama Sastri translates the verse 46 as: Svayamvada (self-assertion), on the part of either of the parties, svapaksha or parapaksha, has been found faulty (dosha). Examination (anuyoga), honesty (arjava), evidence (hetu) and asseveration by oath (sapata), these alone can enable a man to win the case (arthasadhaka). Kangle reads it as: A distinctly seen (drshta) offence (dosha), voluntary admission (svayamvada), straight-forwardness (arjava) in questions and answers (anuyoga) to ones own and the opposite party and oath lead to a decision (arthasadhaka). The differences between the two translations cannot be ignored.
The king should not ignore either party to a dispute when he presides over a bench hearing a dispute of paramount importance. The king presenting his own case (svayamvada) during those hearings is an obvious fault, as he has to be neutral. It was a case of state versus private citizen. The king was identified as the svapaksha and the citizen as the other party, parapaksha. The case of the state has to be presented by Drshti, the minister in charge of the department of intelligence and not by the king personally. He was to look after the interests of the state and the king as his solicitor. [Drshti and Arthasadhaka were designations of two of the eight ministers in the Kosala cabinet. The latter was in charge of economic affairs.]
If the king has to argue his own case, it implies that this department has not been functioning properly or that the state has distanced itself from the king. The king cannot preside over the bench when he is one of the litigants. [There have always been kings men as distinct from others.] [Dhrtarashtra presided over the bench hearing the dispute between his sons and the sons of Pandu. He lacked Drshti, the institution that provided independent intelligence.] What are the means (sadhaka) to achieve ones objective, especially economic (artha) goals? How can one recognize the intent of the codes?
Anuyoga (examination for follow-up), arjava (ascertaining honesty), hetu (establishment of motive) and sapata (value of oath) are the steps to be followed even by the king. All those invited to participate in the trial proceedings were entitled to present their views. It was not an issue between two private litigants. It had become a constitutional issue before a bench whose verdicts would be binding on all. It was an issue of resolving a fundamental contradiction between the constitution of the samstha (which it had adopted for its internal working and to which the state or the king was not a party) and the Dharmasastra that was binding on all. The verse 47 is applicable to routine trials.
Shama Sastri translates it as: Whenever by means of deposition of witnesses (sakshivaktavya), the statements of either of the parties are found contradictory (purvottara artha vyagatha) and whenever the cause of either of the parties is found by the kings spies (chara) to be false, then the decree shall be passed against that party. Kangle reads it as: In case of contradiction between an earlier and a later statement, in case of blame-worthiness of witnesses, and in case of escape from custody of the prison-guard (pradeshtr), loss of suit shall be declared. [Neither translator recognized the implications of the fact that the Kautilyan king was not a judge.]
The simpler cases were supervised by the pradeshtr, the district magistrate. He could use spies or scouts (chara) to verify the facts and was stationed in the district capital. [He also looked after the prison. But that was his secondary function,] If a witness contradicts himself, his statements are rejected. He is liable to be punished. The reports of the scouts were accepted by the pradeshtr and loss of suit was decreed against the party at fault. This was magisterial procedure. In 3-1-46, the constitution bench examined the laws. It was not presided over by the king. In 3-1-47 facts were ascertained by the district court.