Kautilya's views on judiciary, crime and punishment.
King was the fountain source of justice and was expected to decide all cases brought before him either at the fires instance or in appeals of the state and the growth of the royal powers, the king came gradually to be regarded as the fountain of justice and a more or less elaborate system of judicial administration came into existence.
Importance of Justice
As the duty of a king consists in protecting his subjects with justice, its observance leads him to heaven. He who does not protect his people or upsets the social order wields his royal sceptre (danda) in vain. It is this power alone which, when exercised by the king with impartiality and proportion to guilt, whether over his son or his enemy, maintains both this world and the next.
Sources of Law
Any matter in disputes shall be judged according to the four bases of justice. These, in order of increasing importance are:
- Dharma, which is based on truth;
- Evidence, which is based on witness;
- Custom, i.e. the tradition accepted by the people; and
- Royal Edicts, i.e. law as promulgated."
They are the four legs of law.
Organisation of Courts
In Kautilya's work the king is advised to take ascetics and learned men as his associates in certain special cases, for the purpose of helping him in his judgement; but otherwise we have no information of the constitution of the king's court. When we come to the working of the subordinale courts; we find detailed account of this branch of the judiciary in Kautilya's Arthashastra.
The Arthashastra of Kautilya describes two kinds of courts: (1) Dharmasthiya and (2) Kantakashodhan. In the cities of sangrahana, droanamukha and sthaniya* and at places where districts meet, three members acquainted with sacred laws (dharmasthas) and three ministers of the king (amatyas) should carry on the administration of justice.0 This provision has been made for the administration of justice in civil cases (vyavahara).Three commissioners (pradeshtarah) or three ministers should deal with measures to suppress disturbance to peace (Kantakashod hanamkurymh).
The dharmasthiya courts were concerned with civil matters inheritance, debt, determination of forms of matters agreements, determination of legal disputes, concerning marriage, division of inheritance, buildings, non-performance of agreements, recovery of debts, concerning deposits, rules regarding slaves and labours, cooperative undertakings, recession of purchase and sale, resumption of gifts, sale without ownership, ownership, robbery, defamation, assault, gambling and betting, etc. A case could be appealed as high as the royal courts.
The courts dealing with penal (criminal) law, kantakshodhan, tried political cases, including those concerned with the malfeasance of officials, and other cases of an especially serious or difficult nature such as protection against artisans, protection against merchants, suppression of the wicked living by foul means, seizure of criminals or suspicion or in the very act, examination of sudden death, protection of all kinds of government departments, etc.
There is a dichotomy between the rural and urban branches of judicial administration, the dharmasthas or judges in the rural areas being the counterpart of the pauravyavaharika or the town judge and both being distinguished from the corresponding officers of the executive administration, namely the samaharta in the rural and the nagarka in the urban areas. It may be added that the dharmasthas were required to follow strict method of judicial procedure, failing which they were liable to various penalties ranging from fines to dismissal from office. A dharmastha suspected of taking bribes was to be watched by spies under the direction of the samaharta, and he was banished or dismissed from office if found guilty.
The fact that a judge is called a dharmastha – upholden indicates that the ultimate source of all law is dharma. So long as every Arya follows his svadharma having due regard to his varna and ashram and the king follows hie rajdharma social order will be maintained. Kautilya however recognizes that the customary law of the people of a region or a group is also relevant. Disputes should be decided according to the customs of countries and .districts (janapada). of castes (jati), of guild (sreni), and of families (kula).
'Pradeshta' usually translated as magistrates, were another class of judicial officers. The distinction between judges and magistrates seems to be that, while the former dealt with all cases concerning transactions between two parties, the latter were concerned with crimes against society in general.
Both judges and magistrates were subordinates of the Samaharta, the Chancellor. There is no reference in the book to a hierarchy of courts or to appeals from the decision of a lower court to a higher one. An appeal could always be made to the king.
Court Procedure
In Kautilya's Arthashastra, the judicial procedure has not been described, only a few points have been mentioned in relation to offences of Parokta. These are : the year. the season, the month, the fortnight, the date, the nature and place of the deed, the amount of the debt as well as the country. the residence, the caste, the gotra, the name and Occupation of both the plaintiff and the defendant both of whom must be fit to sue and defend, having been registered first. the statements of the parties shall be taken down in such order as is required by the cases. These statements shall then be thoroughly examined. Fines for witnesses shall cover one-eighth of a pana. Provision proportional to the amount sued for may also be made for the expenses incurreu by witnesses in their journey. The defeated party shall pay these two kinds of costs.
The plaintiff shall reply soon after the defendant has answered the question at issue. If the plaintiff runs away. he shall also be guilty of parokta. Sacred law (dharma), evidence (vyavahara), history (charitra) and edicts of kings (rajashana) are the four legs of law. Of these four in order, the latter is superior to the one previously named. Whenever there is disagreement between history and sacred law or between evidence and sacred law, then the matter shall be settled in accordance with sacred law. But whenever sacred law is in conflict, with rational law (dharmanyaya - king's law) then reason shall be held authoritative. Self- assertion on the part of either of the parties has often been found faulty. Examination, honesty, evidence and observation by oath (shapath)- these alone can enable a man to win his case. Whenever, by means of the deposition of witnesses, statements of either of the parties are found contradictory, and whenever the cause of either of the parties is found through the king's spies to be false, then the decree shall be passed against that party.
It is obligatory to produce three witnesses who are reliable, honest and respected. At least two witnesses acceptable to the parties are necessary; never one witness in the case of debts. Wife's brothers, co-partners, creditors, debtors, enemies, manned persons or persons once punished by the government should not be taken as witnesses. In disputes concerning assault, theft, or abduction, persons other than wife's brothers, enemies, and co-partners, can be witnesses. Witness should be taken from Brahmanas, vessels of water, and fire.
Punishments
When government servants commit for the first time such offences as violation of sacred institutions or pick-pocketing, they should have their thumb and the little fingers cut-off or should pay a fine of 54 panas; when for a second time (they commit the same), they should have their left hand cut-off or pay a fine of 100 panas; when for a third time, they should have their right hand cut-off or pay a fine of 400 panas; and when for a fourth time, they should in any way be put to death.
Taking into consideration the social position of persons, the nature of the offence, the cause, whether grave or slight (that led to the perpetration of the offence), the antecedent and present circumstances, the time and the place, and without failing to notice equitable distinctions among offenders, whether belonging to royal family or to the common people, the commissioner should determine the propriety of imposing the first, middle most, or highest punishments. He who causes a Brahamana to partake of whatever food or drink is prohibited should be punished with the highest punishment. He who causes a Kshatriya to do the same should be punished with the middle Vaishya with the first punishment and a Shudra, with a fine of 54 panas. Further, Kshatriya who commits adultery with an unguarded Brahmana woman should be punished with the highest punishment; a Vaishya doing the same should be deprived of the whole of his property; and Shudra should be burnt alive.
Conclusion-
Thus it is clear that the spirit of rigid organisation which marked the executive, pervaded the judieial administration. Further, impartial justice was recognised to be the bedrock of sound government, although the measure of punishment varied with distinetions of social classes (Varnas). There were two kinds of courts, partly resembling the modern system. The whole judicial administration was presided over by the Chief Judge. Above "him stood the king, assisted by his ministers and lawyers.
The most important question for exams:
Ques: Analyse Kautilya's views on judiciary, crime, and punishment.
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