Shukra Niti by Shukracharya
by Benoy Kumar Sarkar | 1914 | 106,458 words
The English Translation of the Shukra Niti by Shukracharya: An ancient Sanskrit text possibly dating to the 4th-century BC. The text contains maxims that deal with politics, statecraft, economis and ethics and shed light on the social life, monarchy and government of ancient India as well their knowledge of early political science....
Chapter 4.5 - The King’s Functions
1.[1] The king should punish the wicked by administering justice.
2. The subjects who are made to observe his orders are always under his authority.
3. The wicked man is the destroyer of good, an enemy of the State and the propagator of vices.
4. The furtherance of the good of the people and their protection are necessary.
5. The destruction of enemies means the prevention of them from committing injuries.
6. The punishment o£ the wicked means the prevention of wicked actions by them.
7-8. Vyavahāra or judicial proceeding is that which, by discriminating the good from the evil, ministers to the virtues of both the people and the king and furthers their interests.
9-11. The king should attentively look after lawsuits (vyavahāras) by freeing himself from anger and greed according to the dictates of Dharma Śāstras,—in the company of the Chief Justice, Amātya, Brāhmaṇa and Priest.
12-13. He should never singly try the cases of two parties or hear their statement. Neither the wise king nor the councillors are ever to try in secret.
14-15. The causes of partiality and imputation are five in number:—passion, cupidity, fear, malice and secret information from the parties.
16-17. The king who does not perform his civic duties well has undoubtedly to rot in the hell.
18-19. The enemies soon overpower the king who through delusion and passion decides cases against the dictates of Śāstras.
20-21.[2] The actions of kings without help (of councillors) lead to hell and destruction, take away the fear of the enemy’s army and ruin life and wealth.
22. So the king should decide cases according to the Śāstras.
23-26. Where the king cannot personally attend to administration of justice he should appoint Brāhmaṇas who are versed in Vedas, self-controlled, high-born, impartial, unagitated and calm, and who fear next life, are religious-minded, active and devoid of anger.
27-28. If the Brāhmaṇa be not learned enough, the king should appoint a Kṣatriya (for the purpose), or a Vaiśya who is versed in Dharma Śāstras, but reject the Śūdra.
29-30.[3] The king should always appoint men of the caste to which he himself belongs, for most members of the royal caste are likely to be well-qualified.
31-32. The justices are to be conversant with actions, character and attributes of people, impartial to both enemies and friends, to know the duties of men and are to be truthful.
33-34.[4] Those who are not idle, who are masters over anger, passions and greed, and who speak gentle are to be appointed to offices by the king from all castes.
35-36.[5] The cultivators, the artisans, the artists, the usurers, corporations, the dancers, the ascetics and thieves should decide their disputes according to the usage of their guild, &c.
37.[6] It is impossible to detect them through others’ help. So they are to be found out with the help of persons born of (i.e., connected with) them.
38-39. The king, who desires his own welfare, should refrain from giving any decisive opinion in a dispute among Brāhmaṇas regarding the interpretation of a procedure of sacrificial ritual.
40. The king should have the cases of the ascetics investigated by the traividyās or those who are versed in the Vedas.
41. He should not himself decide the cases of those who practise the occult arts, through fear of exciting their anger.
42-43. The king should not offer advice to those who are versed in all branches of learning, those who are of superior caste and character and to the preceptors, masters and ascetics.
44-45.[7] The foresters are to be tried with the help of foresters, merchants by merchants, soldiers by soldiers, and in the village (affairs are to be administered) by persons who live with both parties (i.e., neighbours).
46-47.[8] Those persons are the best judges of the merits of the case who live in the places where the two parties stand and where the disputed matters and grounds of quarrel exist.
48-49 The king should, however, appoint officers who are virtuous, well-tried and capable of bearing the burden of the administration of justice like bulls.
50-51. The assembly in which there are seven, five or even three Brāh-maṇas versed in human affairs, the Vedas and Dharma Śāstra is (august and solemn) like one on the occasions of sacrifices.
52.[9] The merchants who are judicious should be made hearers there.
53.[10] The man who knows the Dharma can speak whether appointed or unappointed.
54. He speaks the voice of God who knows the Śāstra.
55-56.[11] Either one should not come to the council (Court) or should speak truthfully. That man is a sinner who keeps silence or utters falsehood.
57-58. Those families, corporations or associations which are known intimately to the king should investigate other cases excepting robbery and theft.
59-60.[12] The Śreṇis (corporations) will try cases not tried by the Kulas. (families), the Gaṇas (communities) will try the cases left by the Śreṇis, and the officers will try the cases not decided by the Gaṇas.
61-62. The councillors are superior to the Kulas, and the Adhyakṣa or chief officer in charge of justice is superior to the councillors. And the king is higher than all—the dictator of what should be done and what not.
63-64.[13] Superior intelligence grows gradually through the investigation of cases of low, average and high importance.
65-66.[14] The man who has studied only one Śāstra cannot investigate a case properly. So in all eases the king should appoint men who know good many Śāstras.
67. What only one man says can even be the. law if he is spiritually minded.
68-69. The cases hive to bo tried by the king separately with men of various grades of intelligence once, twice, thrice or four times.
70-71. The man who can satisfy the plaintiff and defendant, the councillors, the clerk and the audience by his good methods of work should be an assistant.
72-73. The ten requisites in the administration of justice are the king, officers, councillors, Smṛti Śāstra, accountant, clerk, gold, fire, water and one’s own men.
74-75. That court is like a heaven in which the king notices these ten requisites and studies the cases.
76. The functions of these ten arc being mentioned separately.
77. The Adhakṣa is the speaker, the king is the president, the councillors are the investigators..
78. Smṛti tells of the rules about recital of mantras, penance and gifts, &c.
79. Gold and fire are intended for the swearing of oaths, and water for the thirsty and the nervous.
80. The accountant is to count the money. The clerk is to write proper-
81-82. The accountant and the clerk are io be versed in lexicon and the significance of words, well up in accounts, honest, and trained in the use of various alphabets.
83-81.[15] A court of justice is that place where the study of the social, economic and political interests of man takes place according to the dictates of Dharma Śāstras.
85-86. The king should enter the court modestly together with the Brāhmaṇas and the ministers who know state-craft, with the object of investigating the cases.
87. He should proceed with the. work after taking the seat of justice.
88. He should put questions to the parties by being equal to both.
89-91.[16] The king should perform his duty by carefully studying the customs that are followed in countries and that are mentioned in the Śāstras, as well as those that are practised by castes, villages, corporations, and families.
92-93.[17] Those customs that have been introduced in the country, caste or race should be maintained in the same condition, for otherwise the people get agitated.
94. In the southern countries maternal uncles’ daughters are married by Brahman as.
95-96. In Madhyadeśa the artisans and artists are beef-eaters, men are all flesh-eaters, women are addicted to intercourse with others than their own husbands.
97. In the North the women drink wine and are touchable when they are menstruated.
98. People of Khasa country marry the widows of their brothers.
99.[18] These people do not deserve penance and punishment because of these actions.
100-101.[19] Those whose customs have been received by traditions and were practised by their ancestors are not to be condemned for following those customs, not others.
102-105. In Kali Yuga the king should repress those by severe punishments who are covetous of others’ wives and wealth, who are proud of their little learning, and little fortune, habituated to the rites and practices of Tantras, and apathetic to the Vedas.
106.[20] The king should administer Nyāya in the noon and Smṛti in the morning.
107-108.[21] But for cases of murder, thieving, robbery and felonies there is no fixed time. These should be adjudicated at once.
109-111. Seeing the king seated on the throne together with his ministers, the plaintiff should go to him after carefully considering or writing out what he has to inform him or what has been injured by somebody.
112. He should bend low and submit his petition by folding his hands in submission.
113-114. The king with the ministers after receiving him duly should first console and appease him and then commence the trial (discharge his duty).
115-117. He should then enquire of the plaintiff standing before him submissively ‘What is your business? What is your grief? Don’t be afraid. By which ruffian, when and under what circumstances have you been oppressed?’
118. Having thus interrogated him the king should hear what he says.
119. The clerk should write down his statements in the character and language which are prevalent.
120-121. The clerk who writes anything different from what is said by the plaintiff and the defendant should be chastised by the king boldly as a thief.
122. The councillors should not speak or accept what has been thus (wrongly) written.
123. The king should punish like thieves those persons who extort written statements from anybody.
124. In the absence of the king the chief justice should put these questions.
125-126. The Prāḍvivāka is so called because he asks questions (and is therefore Prāt) and analyses cases, judges disputes or states what should be done and what not (and is therefore Vivāka).
127. Those who are good for councils are councillors.
128-129.[22] If oppressed by enemies with means transgressing the law and the established usage, a person complains to the king, it will form the subject-matter of law-suit.
130.[23] The king should never himself fabricate a false case, nor even his officers.
131-132.[24] The king should not through passions, greed, anger or his own information try cases that have not been presented for judgment.
133-134. But he should even without any complaint take up for adjudication cases of chalas (misdemeanour), aparādhas, felonies and cases in which the king himself is a party, on hearing of these through Snehakas, Flatterers, and Stobhakas.
135-136. A Stobhaka is he who not appointed by the king, gives first information of a crime, for the sake of money,—a conduct censured by the Śāstras.
138-139. The Sucaka [Sūcaka] is he who has been appointed by the king to know of others’ offences and after knowing them informs the king.
140-141.[25] Destroyers of roads, slanderers, those who jump across one’s walls, destroyers of water-reservoirs and of houses.
142-143. Those who fill up the ditches, publishers of king’s imperfections, trespassers into inner apartments, trespassers into bedrooms, trespassers into store-rooms, trespassers into the kitchen, those who stand by dinners without appointment.
145-146.[26] Those who spit or commit nuisance or pass wind before the king intentionally, those who sit in heroic postures before the king, those who sit in the front of the king.
147-148. Those who dress themselves better than the king, those who approach the king impatiently and in an unmannerly way, those who enter by backdoors, those who come at the wrong hour.
149-150. Those who sleep in royal beds, those who use royal seats, those who use king’s shoes, those who sleep before the king, those who sit before the king, those who climb before the king, those who sit before the king lying on the bed.
151-152. Those who serve the king’s enemies, those who sit without seats offered by the king, those who use others’ dress, ornaments and gold, &c.
153-154. Those who take betel of themselves and begin to chew it, those who talk or speak without permission, those who insult or defame the king.
155-156. Those who appear before the king with only one cloth, those who come when rubbing oil, or with dishevelled hair, who come shamelessly, or with painted bodies or with garlands on or while shaking the clothes.
157-158. Those who come before the king with head covered (by a turban), those who are skilled in picking holes in others’ pockets, those who are addicted to gambling, drinking, &c., and those who try to see their noses, ears and eyes.
159-160. Those who pick teeth, those who cleanse the ear, those who blow the nose before the king,—these are the fifty sorts of chalas or discourtesies shown to a king.
161-162. Disobeying the king’s orders, murder of women, intermixture of castes, adultery, thieving, pregnancy without husband.
163-164. Harshness of words, speaking slang, severity of punishment, and the destruction of foetus—these ten are aparādhas or felonies.
165-166. The wrong-doer, the destroyer of grains, the man who sets fire to houses, the seditionist, the man who counterfeits coins.
167-168. The man who discloses the king’s secrets, the man who rescues the prisoner, the man who sells or makes a gift or partitions the property of another of which he is not the owner, or who punishes another.
169-170. The man who stops the heating of drums (public proclamations), falsely claims unclaimed goods, or who misappropriates the king’s taxes, and mutilates bodies—
171.[27] These are the twenty-two cases, which the sages say, are Rajajñeya, offences against the State.
172-173. The complainant should be punished if he be insolent, vehement in speech and ferocious in dress, vain, and rough, sit on the seat of the judges and is boastful.
174. An Āvedana or plaint is that which is said io the king by the plaintiff.
175. The language in which it is said to the Prāḍvivāka should be very intelligible.
176-177.[28] The councillors having got that case should interrogate the plaintiff duly, should have more evidences (than presented by him;, or curtail their number.
178. The king should have the depositions signed by the complainant and then seal it with his seal.
179-181.[29] The king should by exemplary punishment deprive those judges and officers of their jurisdiction who without carefully considering the cases pass sentences through fear, greed or passions.
182. The king should first discriminate the eases as to their cognisability before (accepting them for trial.)
183. The king should dismiss the plaintiff after his plaint has been duly framed and accepted.
184-188.[30] The plaintiff should by royal order appoint truthful, honest, active and well-armed men to keep under detention the defendant (who refuses to make certain statements and ignores his complaint) until he is summoned for trial and examination.
189-190.[31] The detentions as regards to certain places, times, foreign countries, and activities—these are the four kinds of āsedha or detentions. The man who is thus forebidden, must not go beyond them.
191-192.[32] The man who goes beyond the limits of āsedha, in binding down the defendant by restraining his calls of nature or harsh words and treatment should be punished.
193-194.[33] The man who violates the āsedha and the periods of āsedha, i.e., breaks the restrictions imposed upon his liberty should be puinished. If doing otherwise, the man who imposes the āsedha should be punished.
195-196.[34] The king should summon by warrant or by officers the man against whom people complain as having committed or threatened some wrong.
197-198.[35] The judicious man should suspect men from their associations, past deeds or marks of offences.
199-201.[36] The king should not summon diseased people, children, old men, men in danger, men with many activities, those who fear the failure of works undertaken, those who are busy with the king’s affairs and festivities, drunk, mad, foolish and sick servants.
202-203. The young maids who have no relatives, high class ladies, women who have just delivered children and are in the lying-in room, high caste girls, women whose masters are not unknown.
204-205. Persons about to be married, the sickly, persons about to undertake sacrifices, persons who are accused in other cases, persons doing work for the State.
206-207. Cowherds tending the cattle, agriculturists in the harvest seasons, artists and artisans at their work, and soldiers in times of war.
208-209. Minors who are not yet masters of their affairs, messengers, persons engaged in charitable works, men in danger—these men are not to be bound down and not to be summoned as witnesses.
210-211. If the bound-down man violates the limitations imposed upon him when swimming a river, crossing a forest or going through a difficult region or in times of revolutions, he is not guilty (and should not be punished).
212-213. After knowing the circumstances of the case, the time, place, as well as the importance of the events, the king may summon the diseased (and others who have been mentioned above as not to be summoned) by conveyances in important cases.
214-215. The king should also summon in serious cases those who have retired to forests after knowing of the complaints against them.
216-218.[37] Representatives have to be appointed by the plaintiff and defendant who do not know the legal procedure or who are busy with other affairs, or who are not good speakers, who are foolish, mad and old and females, children and the diseased.
219. Friends also may be appointed to answer queries.
220-221. The king should accept cases even if they are brought forward by father, mother, friend, brother, and other relatives.
222-223.[38] If somebody has a thing done by somebody appointed by him, the work done by the latter is known to be done by the former.
224. The lawyer’s fee is one-sixteenth of the interests involved (i.e., the the value defended or realised).
225. Or the fee is one-twentieth, or one-fortieth or one-eightieth or one hundred and sixtieth portion, &c.
226. Fees to be small in proportion as the amount of value or interest under trial increases.
22 7. If there be many men who are appointed as pleaders in combination they are to be paid according to some other way.
228. Only the man who knows the law and knows the Dharma should be appointed (as pleader).
229.[39] The king should punish the pleader who receives fees otherwise.
230.[40] The pleader is to be appointed not at the will of the king.
231. If the pleader acts otherwise through greed he deserves punishment.
232-233. If somebody is neither a brother, nor the father, nor son, nor a pleader, but speaks on others’ interests (i.e., for or against the two parties) he should be punished.
234-235. Those women who are subordinate to the king, prostitutes, those who have no families, and the women who are degraded may be summoned to the court,
236-237. If after the plaint has been lodged the two parties die, their sons who know of the case should be the cognisable parties; otherwise the king should withdraw the case from trial.
238-241. In the cases of murder, thieving, adultery, taking forbidden food, abduction, harshness, forgery, sedition and robbery there are to be no lawyers as representatives (of defendants). The perpetrators are to answer personally.
242-243. The king should punish according to offence the man who does not respond to summons owing to the vanity of his men and money.
244-245.[41] Having noticed that the defendant who has been brought by the messenger has other engagements the king should take suitable security for his appearance.
246-248.[42] ‘I shall pay what is not paid by this man, I shall present him before you (at certain dates), I shall make him present a pawn. You have no fear from him. I shall do what is not done by him. Such and such is his occupation (and means of living). He does not swear falsely.’
249-251. The Pratibhū or security is to be taken from both parties. He is to be non-slothful, a good speaker, trusted by the people, renowned, wealthy, and capable of investigating cases.
252-254. To prevent forgery and fabricating false evidence, the king who wants truth should keep both the parties under detention for studying the case. They may be maintained by themselves or by the State but will have to maintain their families with their own incomes.
255-256.[43] Men versed in legal affairs know a sādhya to be the case that is free from unintelligible propositions and attended with good evidence, and the pakṣa to be the ‘object’ or person who is definite and human.
257-258.[44] The defects of language (i.e., statements) are ambiguity, meaninglessness, absence of evidence and agruments, under or over-statement, and omission.
259-260. One should give up the following defects of paksa or ‘subject-matter of law suit,’ viz., uncommon, niravādha (vexatious and frivolous), useless, contradictory, incomprehensible.
261-262.[45] An aprasiddha pakṣa (uncommon) is that which was never seen or heard of by anybody, e.g., “I have been cursed by the dumb, tortured by the son of a barren lady.”
263-265. ‘This man reads or sings sweetly, and enjoys in his own house, this man has his gate on the street near my house’ this is known to be a niravādha-pakṣa (frivolous),
266-268. The following is niṣprayojana (useless): ‘This my son-in-law enjoys with my daughter? ‘This barren woman does not bear child,’ ‘Why this dead man does not speak? These are known as asādhya and contradictory respectively.
269-270. ‘People do not sympathise with me in my grief and pleasures? This is nirartha, i.e., worthless.
271-272. The plaintiff who after having mentioned his case gives that up or contradicts himself by taking some other side is a mean man and must be punished.
273-274. After the pūrvapakṣa or plaint has been determined, corrected according to what is acceptable and what is not, and well discussed, the uttara-pakṣa or the defendant’s version is to be written.
275-276.[46] The plaintiff is to be questioned first, then the defendant. The chief justice is to receive answers to the queries through the officers.
277-279. The reply to the plaint is to be written in the presence of the plaintiff so as to cover the whole case and give the essential points in no vague words and in a manner intelligible without comments.
280-281. That reply is inadmissible which is doubtful, too little, or too much and partial, i.e., covers only an aspect of the case.
282. One should not say anything unless asked, otherwise one is punishable.
283-284. The defendant who does not reply to the plaint presented, is to be controlled by the application sāma and other means.
285-286. By cross-questioning should be disclosed those facts which may have been suppressed by both parties in their statements through wickedness or ignorance.
287-288. There are four kinds of reply—admission, denial, pratyavaskandana (admission with justification) and pūrvanyāyavidhi (res judicata).
289-290. A confession of judgment or admission or pratipatti is that in which the defendant acknowledges as real what has been said by the complainant.
291-292. The denial is that in which the defendant after hearing the plaint objects to it, whether in point of fact or language.
293-294. ‘I do not know of it,’ ‘this is false,’ ‘I was not there then,’ ‘I was not born then.’ These are the four species of denials.
295-296.[47] A pratyavaskandana is that in which the defendant while admitting the statements of the plaintiff, justifies them owing to the existence of other facts.
297-298. The pūrvanyāya or prāṅnyāya is that in which the past history of the case is referred to in which the defendant says that in this very case the plaintiff was defeated by him sometime ago (res judicata).
299-300. Prāṅnyāya is of three kinds. I shall prove by presentation of the old judgment, or evidence of the officers and judges or by witness that I defeated him on the last occasion.
301-302. Those officers who do not receive the statements of the two parties in the presence of each other are punishable like thieves.
303-304. A kāraṇa is the document of the actions (kriyā) of both the parties after these have been recorded, corrected, and made faultless.
305-306.[48] The four divisions of a case are first, the Pūrvapakṣa or plaintiff’s statement, secondly, the Uttara or reply of the defendant, thirdly, the Kriyā or actions of the two parties in the conducting of the suit, and lastly, the Nirṇaya or decision and judgment.
307. The Sādhya or case is said to be Kāryya or the thing to be done. The Sadhana or means adopted to do the thing is said to be Kriyā,
308. The plaintiff should establish his case in the third quarter by the Kriya.
309.[49] The Vyavahāra or a law-suit has four divisions, if there be no Pratipatti or admission.
310-312. The cases should be tried in the order of their arrival, or of their importance, or of the gravity of injuries suffered and losses sustained, or of the castes.
313-317. The assessors after considering the defence should give their opinion with regard to the party on whom lies the burden of proof. He on whom lies the burden of proof should prove the point at issue with all the evidence at his command, documentary and otherwise. In a dispute between two the evidence of both cannot be true. The evidence of one must be false, if the other is right.
318. In the ease of a reference to the past history of a suit by Prāṅnyāya (res judicate) the defendant will have to present his Kriyā (the means for proving it).
319-320. Some time owing to certain reasons the burden of proof may be shifted from the first to the second party. At this stage the plaintiff should immediately write down the evidence in support of his case.
321. The Sādhana or evidence is two-fold, human and divine.
322. The human evidence is three-fold—documentary, possessory and oral.
323. When the human Sādhanas (evidences) have failed he should use the divine ones like ordeals of the pot, &c.
324.[50] Both bhūta (human) and bhāvya (divine) Sādhanas are two-fold according to Tattva or reality and Chala or fiction.
325. Tattva is that which describes the truth. Chala is that which describes the false things.
326-327. The king should study the cases after always removing the Chalas by reasoning, inference and the application of Sāma and other methods.
328-329. The king should not delay in taking evidence. If there be delay there will arise great defects which may lead to the miscarriage of justice.
330-331.[51] The king should record the evidences (Sādhanas) in the presence of both parties, should not receive them in their absence.
332. The defects of the evidences have to be pointed out by the defendant.
333. The deeper meanings of the evidence are to be made clear by the councillors by referring to the Śāstras at the proper time.
334. The man who complains against somebody without any reason is punishable and should be deprived of his suit.
335. After having carefully considered the evidence the king should decide upon the case.
336. The producer of false evidence should be punished according to the offence.
337. The man who bears false evidence and the man who suppresses evidences are to receive double the punishment (of the producer).
338. Now I am describing the written evidence Likhita Sādhana, (and other evidences) in due order.
339. Writing was created by Brahmā as a reminder of past events.
340-342. The Likhita or written document is of two kinds—royal and popular, whether recorded with one’s own hands or by others, and whether before witnesses or without witnesses. They are to be prepared according to customs of the locality.
343-344. The seven popular Likhitas are about partitions, gifts, sales, acceptance, receipts, Sambiddāna [Saṃvidāna?], and debts.
344-345. Royal commands are of three kinds meant for administration, information or decision.
346-347. The Bhāgapatra or the document of partition is valid if it has the witnesses, and the approval of the heirs.. Otherwise even if made by father it is as good as not done.
348-349. The documents of gifts, sale and purchase about immoveable goods are valid only when approved by the receivers and having the Grāmapas or village officers as witnesses.
350-351. The royal documents are those that are signed and sealed by the king and signed by the Prakritis or departmental heads.
352-357. There should be mention of time, year, month, fortnight, tithi (day of the moon’s age), period of the day, province, district, place, caste, size, age, the objects, the evidences, the goods, the number, one’s own name, and the king’s name, residence, names of the other party, names of ancestors, the griefs (or injuries sustained), the collector, or the giver and the signs of mercy, &c.
358. The document which does not mention all these is Hīna or poor (i.e.. not valid), e.g.
359-361. The documents which are disorderly (in which the facts have been mentioned without any order), which mention the facts in the reverse order, which are unintelligible, which are useless, and which are written after the expiration of the period of transaction, are not valid, as well as those which have been written by senseless people, females, or by force.
362-363.[52] In Vyavahāras men attain success if documents are made on good paper, attested with good witnesses, etc., and accompanied with possession.
364-365. The man other than self who is aware of the facts of the case is a witness. The witness is of various classes—one who has seen or who has heard of it, each again is divided into two classes—got-up (false) and true.
366-367. The man by whom facts are seen or heard in the presence of the plaintiff and the defendant may be a witness if he be uniform in statements.
368-369. The man whose intelligence, memory and ears do not prove defective even after a long time deserves to be a witness.
370. The man whose truthfulness has been tested deserves to be a witness.
371. Even one man if virtuous is adequate when approved by both parties.
372. Men should be witnesses according to caste and race.
373-374. Householders, not the dependants, wise men, those who are not abroad, and young men should be made witnesses. Females should be appointed in cases involving female interests.
375-376.[53] Witnesses, however, need not be discriminated in the following cases—violence, thieving, felonies and abuse, assault and kidnapping.
377-378. The child because of his ignorance, the women because of mendacity, the forgerer because of sinful habits; the relatives because of their affection, the enemies because of their rivalry.
379-380. The man who belongs to an inferior caste or race because of his vanity, the cheat because of his cupidity and the servant because of fees and bribes—-these people are not to be witnesses.
381.[54] Not also those with, whom one has money transactions, with whom one has marriage relations and those with whom one has educational relations.
382. If somebody is prejudiced with the Śreṇis (communities) or vargas (groups) of men, his evidence is not to be taken. For men like him are all enemies.
384-386. The king should not lose time in talking with the witnesses, and should make them give evidence in the presence of both the plaintiff and the defendant—never in their absence.
387. The man who, when ordered, does not bear witness is punishable.
388-389. And the man who was not present or who has not been summoned or ordered to say what he knows is punishable whether he talks truth or falsehood.
390-391.[55] If there be a division or difference the king should accept the verdict of the majority; if there be equality or sameness, he should accept the opinions oE the virtuous, and always the opinions of those who are well qualified.
392-393. A person present in court must depose truly as to what he has seen or heard, when asked, even though he may not have been cited as a witness.
394-395. The witness should say separately what he has known separately in different times, this is the eternal practice.
396-397.[56] One should accept the evidence of witnesses which are given spontaneously not through force; after the evidence has been once given by the witness he should not be repeatedly crossed.
398-400. The witness should be interrogated after being well governed by oaths, the teachings of Purāṇas, narration of the great merits of virtuous life, and the great sins of falsehood.
401-402. ‘Where, when, how, whence and what have you seen or heard—whether written by oneself or caused to be written by somebody? speak truly all that you know.’
403-404. The witness who gives true evidence attains happy life hereafter and unrivalled fame in this world. This is the remark of Brahmā.
405-406. It is truth that blesses the witness. It is truth that increases virtue. So it is truth that should be spoken by witnesses with reference to all castes.
407-408. Oneself is one’s own witnesses, oneself is one’s own protector. So you should not degrade and insult your ownself (by false evidence).
409-410. The sinner thinks ‘Nobody is noticing me.’ But the gods and the manes see you.
411-412. All the virtues that you have earned in the series of births you have passed through belong to the man whom you thwart by false evidence.
413-414. You also acquire all the vices committed by him during one hundred lives. In this way the king should advise the witness in public.
415-416. One should give sufficient time for the consideration of the evidences presented, according to their nature, whether divine or royal.
417-418. If the written documents be missing the cases should be investigated with the help of evidence by possession and witnesses. If the documents as well as witnesses be wanting only the possession should be used. And if possession evidences fail, the documentary evidences and witnesses should be used.
420-421. The king should never investigate cases with only one kind of evidence e.g., by mere possession or document or witnesses.
422-423. The ingenious cheats can easily produce duplicates of the documents (by forging). Hence on the strength of the documents alone no point can be absolutely gained.
424-425. So also solely on the strength of witnesses no case can be won, because of their affection, greed, fear anger and falsehood.
426-427.[57] Again there are men who on the strength of mere force enjoy goods whether unclaimed or belonging to others (than themselves). So a case cannot be won by mere possession alone.
428-429. One should suspect only such cases as have grounds for suspicion, not otherwise. The king should punish like thieves the officers who are foolishly suspicious.
430-431. Through over-suspiciousness great calamaties come up. People are disintegrated, and virtue and business suffer.
432-433.[58] Possession can be a sufficient evidence when it is attended with income for a long time without opposition and always in the presence of the defendant.
434-435. When, however, the man simply declares that he is in possession but never receives the income there is a case of pretended possession and the man is a thief.
436. Even title is no evidence which is not accompanied by possession however slight.
437-438. The owner of a small property who sees his moveables enjoyed by another openly for ten years, cannot get that back.
439-440. The man whose land has been enjoyed for twenty years by others, even if he be powerful, cannot get that back.
441-442. The king should punish as a thief the sinful man who holds the property of another for many hundred years even without title.
443-444. But the property which is ceaselessly enjoyed for sixty years even without title cannot be claimed back by anybody.
445-446. The following cannot be destroyed by length of adverse possession: mortgage, boundary land, minor’s property, trust property, sealed deposit of female slaves, Government properly of a learned Śrotriya.
447-448. The owner who is indifferent (to his property), and remains silent (i.e., does not prohibit the trespasser) cannot get back by a lawsuit that property, on the expiry of the above period.
449. Possession has thus been briefly narrated. Now the divine Sādhanas (ordeals) are being mentioned.
450-451. When through the headlessness of the owner, there does not exist the threefold evidence and the opposite party conceals the truth, then is to be applied the threefold procedure mentioned hereafter.
452-453. First repeated persuasion (to the opposite party to be fair), secondly, Yukti thirdly, ordeal (or divine test),—these should be applied in succession to prove one’s case.
454-455. Yukti (or probability and expediency) is that which is based on right argument, unopposed to scriptures and usages of the good, and which is employed to achieve one’s end: but not anything else.
456-457. Rewards, distinctions, dissensions, and temptations are the various acts which cause the mind to change. (These means may be employed to weaken the case of the adversary and to induce him to tell the truth).
458-459. Persuasion must be constant and repeated, heedless of the remarks of the opposite party. For though refused thrice, four times, or five times, at last the adversary may yield, and turn to right.
460. Even when Yukti fails the divya Sādhana (ordeal) has to be used in the investigation of cases.
461-2. Methods are known to be divya because these were used by the great devas or gods in the discrimination of difficult cases.
463. The seven Ṛṣis also recognised them as purificatory means.
464-5. The man who through vanity of learning does not have recourse to the divyas adopted by men like ‘Vasiṣṭha’ is an irreligious man.
466-7. The gods undoubtedly take away half the merits of the Brāhmaṇa who thro’ vanity does not swear by the divya method even when it is presented before him.
468-9. On the other hand the man who desirous of bis purgation has often recourse to divya is purified and does attain fame and heaven, otherwise not.
470-1. In the matter of decision of cases by the divya, fire, poison, vessel, water, virtue and vice, rice and oaths—these are prescribed by the sages.
472-3. The preceding ones are more weighty than the succeeding, and should be employed according to the importance of the case. But really all divyas are weighty.
474-7.[59] The (accused) has to walk nine steps with a hot ball of iron in the hand or has to walk seven steps on hot charcoal, or has to take out a quantity of iron placed in hot oil by the hand, or has to lick by the tongue a very hot iron plate.
478.[60] The accused has to swallow poison or catch the poisonous shake by the hand.
479.[61] He has to be measured against something of equal weight and then to correct (?) either diminution or increment (?).
480-1.[62] He has to drink the water taken from that used in bathing his auspicious gods, and afterwards to be immersed in water for a certain period.
482.[63] He has to touch or take away the images of Dharma and Adharma without seeing them.
483.[64] He has to chew without anxiety or fear one ‘Karṣa’ amount of rice.
484-6.[65] He has to touch the feet of superiors, or heads of children, or coins or swear by the gods ‘Let me be cursed with the burden of sins, let all my merits be extinguished.’
487.[67] Fire is prescribed is cases involving thefts of one thousand, poison in one-fourth less, balance in one-third less, water in half that amount, virtue and rice in half the preceding (i.e. one-fourth of the unit), Rice in one-eight, oaths in one-sixteenth. This is the order of divyas.
491-492.[69] The above figures are meant for the worst (class of people), and it is declared in the Smṛtis that twice those (respective figures) should be taken (in the case) of the better class (of persons), and also four times that (in the case) of the highest (class of men).
493-494. When (the accuser) would not himself abide by the judicial sentence (in case the contrary is proved) then no ordeal is prescribed: it is well-declared that the accuser should consent to abide himself by the judicial sentence (if the contrary is proved) in all the ordeals.
495-496. An ordeal is to be prescribed to the accused only, for that is so said in the Śruti, and never shall (a Judge) order an accuser to go through (any one of) the ordeals.
(?)497.[71] But the other, (namely, the accuser,) if he so wills it, have recourse to ordeal, and (the party) other than he might press the accusation (against him).
498-499.[66] In the case of those who have been suspected by the rulers, those also who have been pointed out to (as offenders) by the enemies (of mankind) and (in the case) of those too who are bent upon proving their innocence, ordeal might be prescribed without the accuser standing in front.
500-501. In cases of adultery and incestuous intercourses in the prohibited (circle), and an accusation of having committed a mortal sin, ordeal itself (should be had recoarse to), there is no (proof) otherwise.
502.[68] In the case of those on whom there was a presumptive charge of theft, the ordeal of lifting a small piece of metal from the boiling oily matter is ordained.
503-4. But when the case is an indictment for murder, though means of human proof there does exist, yet if the accuser would (of his own accord) have recourse to ordeal, then the (human) evidence should not there be inquired into.
505-6.[70] Where the means (of proof is such) as its honesty requires to be tried, and if such evidence is given before the king, the king having occupied the seat of justice shall test it by means of a suitable ordeal.
507-8.[72] Whatever document it is, if it is as good as any good legal document, in points of name, Grotra, etc. of the parties, but if no money was ever borrowed (by the defendant), there the decision is to be arrived at by means of an ordeal.
509-11. Where no human evidence is coming forward, the ordeal might be prescribed there, and also in such cases as offences Committed in a forest, in a solitary place, at the time of night, or in an inner apartment, in the case of violence, in cases of accusations affecting the character of women, and the cases where every fact is denied (completely).
512. When other evidences are extremely vitiated, they must be rejected and the honesty of the parties should be tested by means of ordeals.
513-4. In cases relating to mortal sins, theft of deposits, a king, notwithstanding there are witnesses, shall investigate the case by means of ordeals.
515-6. Where witnesses of the first class differ in their evidence, likewise the witness of the next class do so, and likewise do the witnesses other than that next class, that case shall be conducted by administering the oaths.
517-20. In disputes relating to immovable properties; in cases of disputes among unions of men, guilds, and companies; in cases relating to non-delivery of gift; when a case has to be decided between servants and their masters; in a case relating to rescension of sales; and where having purchased a thing one does not pay the amount of its price,—these (disputes) one shall prove by witnesses, by document and by possession too.
521-22. In marriages, festivities, and gambling games, if a dispute arises, witnesses are the means of proof there, and neither an ordeal nor a document (is necessary).
523-4. In using a property as an entrance or path, mortgage, passage of water, etc., likewise, it is possession itself that is valid.
525-526. If one party would urge human evidence and the other party divine, the king should accept the human not the divine.
527-528.[73] If there be a human evidence which covers only a part of the case, even that is to be accepted, not the divine though that covers the full ground notwithstanding men urge it.
529-530. The six kinds of ‘Nirṇaya’ or decision are through ‘Pramāṇas’ (or evidences of witnesses, documents, &c.), reason, usages, oaths, special orders of the king, and the admission by ths plaintiff.
531-532. Where there is no document, no possession, no witnesses, and no resorting to ordeals, the king is at liberty (to proceed as it is best).
533-534. In cases which are impossible to decide finally and which are of a doubtful character, e.g., those relating to boundaries, &c., the king as the supreme lord is at liberty (to proceed as it is best).
535-536. Even the king is a sinner if he decides cases in an absolute manner; therefore he should administer the secular interests in harmony with the (spirit of) Dharma Śāstras.
537-538.[74] Judicial investigations are vitiated through the greed of the king and (his) ministers. People too are drawn away from the path of virtue and get addicted to fraudulent matters.
539-541. If a case proceeds through excessive passion, greed and anger if effects the parties, witnesses, judicial councillors, and even the king. Hence the king should cut off their root (e.g., person, etc.,) and discriminate it well.
542-544.[75] If somebody presents as right to the king something which is wrongful and if the king accepts that as right without careful consideration, he is regarded as the real actor and gets eightfold sin.
545-546.[76] The councillors must not be indifferent to the immoral methods of procedure adopted by the king, for then they are thrown down hellward together with the king.
547-548. The ‘Dhigdaṇḍa’ (moral disapprobation) and ‘Vagdaṇḍa’ (oral chastisement) these two are within the competence of councillors ‘Arthadaṇḍa’ or fines and corporeal punishment are within that of the king.
549-550. If somebody objects to the judgment as well as the decree of the king as against Dharma, he can have a re-trial on the depositing of double the fine.
551-552.[77] A re-trial or appeal may arise in those cases which have been vitiated by the undue pressure of witnesses and officers and by the defects of the king’s own actions.
553-554.[78] Whoever, an Amātya or the President (of the judicial assembly), would decide a case contrary to law, the king shall examine it again, while he should fine them a thousand.
555-556. Without punishment no one can walk in the right path. So when the offences of (judicial) councillors nave been pointed out the king should take the case for re-trial.
557-558. A man is said to be successful when he can substantiate his case by arguments, gets the approval of the Judge, and receives the Jayapatra or document of victory.
559-560. The king should give to the victorious party the Jayapatra after it has been carefully analysed by the officers and accepted by the other
561-562. Otherwise the king should imprison the plaintiff for many years, and punish him according to the seriousness of the false charges and (similarly) honour him who is (falsely) accused.
563-564. The subjects follow that king, as the rivers the ocean, who investigates the cases according to Dharma by restraining his passions and anger.
565-566. Even the son who has got old age is not independent if the parents are alive; Of them, the father is superior for the seed is superior (to the field).
567. In the absence of father, the mother; in her absence, the elder brother.
568. Sovereignty (authority) can be given only to the eldest, and eldership comes through both qualifications and age.
569-570. One should respect those women as one’s own mother who are the wives of father, and should maintain them all with a portion of property equal to his own.
571-572. Subjects are all dependent, the king is the sovereign authority. The disciple is dependent, the preceptor is independent.
573-574. The father has authority over sons and son’s wives in the matter of discipline, but no right to sell or give away the son.
575-576. Among those who are dependent, all the (persons) mentioned above (as dependent) are always independent (in a way): they are admittedly their own masters in the matter of issuing command (where they can), and giving away or not giving away (what is their own).
577-578. The father is the lord of all gems, jewels, etc., but neither the father nor the grandfather has authority over all immovables.
579-580.[79] The wife, the son, and the slave—theee throe are adhana, i.e., unpropertied (in the matter of family property). Whatever they earn is the property of those to whom they belong.
581-582.[80] A man is not the owner of the property because it is held by him. Is it not found in the case of thieves that somebody’s property is being held by somebody else?
583. Hence ownership is to be admitted only if the Śāstras sanction, it is not brought about by mere enjoyment.
584.[81] Otherwise one should not say that so and so’s wealth has been stolen by so and so.
585-586. In the Śāstras sources of income as well as the castes are known to be various and that Dharma of the Śāstras always binds even the Mlechchhas [Mlecchas].
587. For the preservation of the community these have been fixed by previous sages.
588. Sons and wives are to be made equal sharers.
589. The daughter is to have half of the son’s share, the daughter’s son half of that.
590. Even if the father be dead, the sons, &c., are to receive their shares according to the above proportion.
591-592. The son should give one-fourth to the mother, one-half of that to the sister, one-half of that to the sister’s son, and himself receive the remainder.
593-594. The son, the grandson, the wife, the daughter, the daughter’s son, the mother, the father, the brother and the brother’s son—these are to receive the wealth (in the order stated) each in the case of failure of the predecessor (in the list).
595.[82] Absolute right is given to women in the matter of wealth that is called women’s wealth as regards sale, and gift, even in immovables.
597-598. The Saudāyika wealth is known to be that which comes to a married woman through gifts and dowries from parents’ or husband’s families or through presents by parents and relatives.
599-600, The man who earns anything without the help of ancestral wealth can enjoy that at bis own will. That is indivisible.
601-602. Anybody who can save somebody’s wealth from absolute destruction owing to the ravages of deluge, thieves, kings and fire has right to one-tenth.
603-601.[83] The goldsmiths should get remuneration according to the labour undergone by each in cases where they combine to perform a work of art.
605. He is said to be a ‘śilpin’ by the learned who is well-versed in his art.
606-607.[84] The leader or captain of those who combine to build a palace or a temple and construct canals or furniture is to get twice the share got by each.
608-609.[85] The remuneration of a musical party also is to be divided according to this principle. The ‘tālajña’ or one who beats time is to get one-half and the singers to have equal shares.
610-611. If thieves steal something from other's kingdoms by the king’s order they should first give one-sixth to the king and then divide the rest among themselves.
612-613. If one of the gang is caught all the rest should spend equal sums in rescuing him.
614-615. Those who deal in gold, grains and liquids (collectively) will have earnings according to.the amount of their share, greater, equal or less.
616-17. Whatever portion is stipulated indeed (beforehand), equal, less, or more, that (shall be accepted) exactly so. Expenditure he shall pay and do the work (proportionately) and take the profit too (in the same manner).
618. The same principle (of joint-stock enterprises) applies to merchants as well as peasants.
619-621.[86] The common property, the wealth that has been realised by begging, security, mortgage, slaves, the property of slaves, anvāhita (deposits) and the total wealth if there be children—these nine are not to be made over to others by the wise even in times of danger.
622-623. Those who receive what should not be given, and give what should not be given—both these classes of men are to be punished like thieves, and are to be made to pay the highest fine.
624-625. The man who receives wealth from thieves as well as those who are not masters and the man who purchases quite secretly (from them) are to be punished like thieves.
626-627. The priest who forsakes the householder without offence and the householder who forsakes the priest without offence—both are to be punished.
628-629.[87] A merchant should fix 1/32nd or 1/16th part as the profit in a business with due regard to the expenditure and to the conditions of the place and not more.
630. (One might advance money to one who intends to be a merchant) and not demanding the interest, he should make him carry on the trade with half the profits always.
631-2.[88] When (the amount) drawn from the debtor (in the form of) interest has reached twice the principal then then the king shall make (the debtor) pay only the principal to the creditor and nothing more than that.
653-634.[89] Creditors take away people’s wealth by the compound rate of interest. So the king should protect the people from them.
635-636. If somebody does not return the money to the creditor when he is able, the king should make him pay that back by applying the methods of ‘Sāma, Daṇḍa,’ &c.
637-638. When the document is one’s possession is lost, and he brings a suit for the recovery of debt them the king should well ascertain the truth by means of witnesses and make the debtor pay him as before (when the document had not been lost.)
639-640. The man who receives what has not been given and again wants some thing though well paid—both of these are to be punished by the virtuous king.
641. The seller of bad (adulterated) goods is punishable like a thief.
642. The king should give wages to artists after noticing their works and qualifications.
643-644.[90] The king should daily receive (as duty) from the sales of silver one-fifth, one-fourth, one-third or one-half—not more.
645. (When) one hundred palas (of gold) is taken and melted, it is pure if it still remains one hundred palas and does not become less.
646-48. Silver is diminished by four-hundredth part (when melted), copper (becomes) less by a hundredth part; tin, Jasada, and lead (each) is diminished by one-sixteenth part, and iron by one-eighth part, if it is otherwise the artisan should always be punished by the king.
649-51. In articles of the best workmanship gold is lost by a twohundredth part of itself while silver by a hundredth part; and if soldered (by using; good material, (the weight) is increased by a sixteenth part.
652. Having examined the soldering and the workmanship, the increase or decrease should be determined.
653-654. The goldsmiths’ wages is to be one-thirtieth (the value worked upon) if workmanship be excellent, one-sixtieth if mediocre, and half of that if of inferior order.
655. Wages to be half of that in the Case of kaṭaka (bracelet), and in the case of mere melting, half of that.
656-657. The silversmith’s wages is to be half if workmanship be of the highest order, half of this if mediocre and half of that if inferior, and half of that if kaṭaka.
658-659. The wages is to be one-fourth in the case of copper, zinc, and Jasada metal, half, or equal or twice or eight times in the case of iron.
660. The man who adulterates metals deserves double the punishment.
661-662. Customs originating with the sages in ancient times, have grown with the people in divers ways, which it is impossible to describe.
663. The Section on Administration of the State has thus been described.
664. The merits and demerits not mentioned herein are to be known from popular usage.
Footnotes and references:
[1]:
The Section deals principally with laws and administration of justice.
[3]:
In II.23-32 the qualifications of men who are to study the cases and help the king in the administration of justice have been described. They are generally to be learned Brāhmaṇas, but if Brāhmaṇas are not available, may be chosen from any caste except Sūdras, especially from the royal caste.
[4]:
Ordinary Officers may be chosen from any caste.
[5]:
[6]:
Laymen cannot detect the character of these persons. So investigation regarding such persons should be carried on through members of those professions.
[7]:
Here is something like a trial by peers,
[8]:
This is the principle of local judges for local cases.
[9]:
Something like a jury of merchants is implied.
[10]:
Even outsiders who know the law can give their opinions on the cases in dispute
[11]:
[12]:
[13]:
The lowest officers and organisation have to try the most insignificant cases end their intelligence, therefore, is of an inferior grade. Those that are higher in the judicial scale have to display a higher grade of skill in older to be able to cope with the higher responsibilities entrusted to them. So there is a regular grade or hierarchy of intelligent beings
[14]:
[15]:
arthaśāstras are the science of the secular interests of man. The place which investigates interests wording to the dharmaśāstra is the dharmādhikaraṇa.
[16]:
In deciding upon a case and performing his svadharma, the administration of justice, the king should be very circumspect. He should carefully fīnd out the customs that are local, temporal, social, domestic, national, etc. For dharma differs not only with time and place but also with jāti, śreṇī and kula.
[17]:
Śukrācārya always advocates the maintenance and preservation of the customs of the folk—a very sound maxim for winning the heart of the people. He is thus not a supporter of the theory of absolute virtues and vices. According to him diametrically opposite practices may be both good if they are customarily followed by certain sections of the community. What is praiseworthy in one locality may be condemnable in another But the king must be a respecter of the laws of nations, and should not abolish the vestiges of past life or national characteristics in the mania introducing uniformity.
[18]:
In II.94-8 a few customs are narrated. These are absolutely local and racial, says Śukrācārya. They are practised as virtues or, at any rate, not inconsistent with a strictly moral and civilised life according to the ideas obtaining there, though they may be despised in other parts of the same country and by other races Thus what people in one part of the country would regard as absolute unchastity, through depravity and most heinous social crime or objectionable domestic practice, peoples in other parts follow as though quite social and morale.
[19]:
Having described certain local usages Śukrācārya is referring to some longstanding customs. If certain usages have been banded down from generations and are practised among certain peoples by tradition they are not to be held as offenders. But other persons who have not those traditions are to be punished if found practising them.
[20]:
Morning is the time for adjudicating cases which involve application of the socio-religious regulations laid down in the Smṛitis and daytime is fixed for oases which involve the breach of laws made by the king, etc.
[21]:
Serious cases to be tried immediately.
[22]:
If somebody is injured by others through measures antagonistic to Smṛti and Ācāra, and if be applies to the king for redress there is a complaint or
[23]:
The Government is to take no cognisance of affairs unless presented by the interested parties.
[24]:
The king is not to take the initiative in these matters. He should try only those cases (artha) that are brought before him for adjudication.
[25]:
[26]:
These are offences against the moral sense and social etiquette of the community.
[27]:
The twenty-two include the 10 aparadhas together with the offences mentioned in lines 165 70
These twelve are offences against State or commonwealth while the aparādhas are mainly offences against society, morality and religion, whereas the chalas are offences against the person of the king.
The rājajñeya offences must be brought for trial at the king’s own initiative because the Government itself is the party offended against. The chalas are offences against the king himself, and therefore unless he himself takes cognisance of these, these would remain unpunished, and people would forget manners, etiquette and the rule of civilised life. The aparādhas are offences against the community, and as the king is the guardian of morals and religion and head of the society it is his function to find out the breaches of social discipline or the perpetration of serious social crimes
[28]:
pūrvakṣa—The complaint, the case brought forward by the accuser, the case.
The judge should demand for more witnesses if necessary and cm tail their number at times.
[29]:
smṛtyarthe [smṛtyartha]—In order that they may remember their offences in carelessly trying the cases.
[30]:
vaktavyerthe [vaktavye'rthe?]—Who talks irrelevant and does not stick to the questions asked of him, i.e., evades them and refuses to make statements.
ukrāmantaṃ [ukrāmanta]—Who ignores or defies his plaints.
āsaṃdhayet—Should bring under control, bring to bay.
[31]:
āsedha—Limitations of movements.
(1) sthānāsedha—Certain places are forbidden, the prisoner is confined to certain places.
(2) kālāsedha—Periods of time during which the prisoner will not be free to do anything be likes but will be compelled to commit or omit certain things.
(3) pravāsāsedha—places forbidden. The man will not be allowed to go beyond a certain area.
(4) karmāsedha—Certain activities forbidden. The man will be bound down to preserve peace, will not be allowed to speak certain things,
[32]:
The asiddha or ‘bound down’ man must not be prevented from responding to calls of nature. He must not be accorded an unnecessarily cruel treatment in words and actions.
[33]:
The prisoner or the defendant should be punished only in the act of violating the restrictions imposed upon him.
[34]:
tatvena—Actual commission.
mudrayā—Warrant issued over the king’s signature.
[35]:
Grounds of suspicion.—
(1) Bad companions,
(2) anubhūtakṛti—Known habits,
(3) hoḍhā—Stolen goods.
If they are found on Somebody’s possession he is caught red-handed.
[36]:
akalya—Diseased.
kāryātipāta-vyasan [kāryātipāti-vyasan?]—Those who fear teat there be a failure of works already under taken.
[37]:
Pleaders and lawyers are to represent such persons and state their cases as their own.
[38]:
The theory underlying the appointment of the pleaders is this. For the time being they become the defendant’s and complainant’s other selves so to speak, become in fact the defendants and complainants. The proxy becomes the original by a sort of legal fiction for the purposes of answering queries and asking questions.
[39]:
[40]:
The king cannot appoint any pleader he likes to a case. It is the interested parties who should engage the services of the lawyers in whom they have confidence.
[42]:
These ate the statements of the man who stand bail before the king. He has to promise certain things in these words.
vṛttimān—etc.,—who promises and guarantees that the party has ‘credit1 and is a reliable man.
ādhi—pawn, mortgage.
[43]:
lokasiddha—The object must not be non-human. Only human objects are cognisable.
[44]:
Here are the possible defects pratijñādoṣa of which the sidhya must be free.
[45]:
Such are impossible or absurd statements.
[46]:
The councillors and officers or to cross both parties.
[47]:
It is something like an intellectual tug of war between the two parties.
[49]:
pratipatyuttara—True reply as described above. If the reply is true the case punished then and there, i.e., at the second stage. Bat if the defendant be not so honest, the case has to be dragged through all the stages.
[50]:
Each of and Sādhanas may be real and fictitious.
[51]:
[52]:
[53]:
The conditions as to who are to be witnesses are to be enforced only under certain circumstances, not always. There are several cases e.g., sāhasa in which witnesses need not conform to the above conditions.
The following lines mention the persons who are not to be witnesses.
[54]:
vidyārthī—puplis, or school-follows, or teachers.
[55]:
The principle is pre-eminently modern.
[56]:
If the evidence has been clearly set forth once the witness should not be based by unnecessary questions.
[57]:
In the last six lines arguments have been advanced to show that all the three kinds of evidences, viz., documents, witnesses and possession—may be vitiated each in its own way. So one only cannot constitute a title to something.
[59]:
These are the methods of using Fire in the divya method of trial. Having described the fire-ordeal in these lines Śukrācārya is describing the other divyas in succession.
[60]:
These are the two methods of the Poison ordeal.
[61]:
The man has to be placed in the balance twice. If there be any discrepancy in the two measurements his guilt is proved. The jala or water-vessel mentioned in I.470 must be huge enough, to contain substances, e.g., water, grains &c. equal to a man’s weight.
[62]:
This is the water ideal, if the man does not get suffocation, soon, he is innocent, it appears.
adyat [?]—should eat, here drink. Before being immersed in the water he has to quaff off a quantity of the sacred water in order to be impressed by the gravity of the occasion.
[63]:
This is the dharmādharma ordeal. Two images are placed before the accused, one personating virtue and the other vice. The man is blind folded and required to touch or take away the images in that plight (adṛṣṭa). If he touches the virtue he is innocent, otherwise guilty.
[64]:
The Rice-ordeal declares a man guilty who in chewing the rice experiences difficulties through palpitation of heart or want of salivation &c. owing to excess of excitement or agitation.
[65]:
These are the four methods of oath-ordeal.
[66]:
Another interpretation of this verse: “(in the case) of those who have been pointed out to (as offenders) by the enemies (of mankind), who have been next suspected too by the rulers (as such), and who consequently are bent upon proving their innocence, ordeal might be prescribed without the (accuser) to stand in front.”
N.B.—dasyu—though generally taken to mean robbers, is yet translated as ‘enemies (of mankind)’ considering the various uses of the word in the Smṛti literature,
[67]:
The Divya methods of decision (Nirṇaya) have to be used in the investigation of criminal cases in the order described in these lines. Criminal Law regarding thefts would thus require
| Rs. | ||
| (1) | Fire ordeal in suits of ... | 1,000 |
| (2) | Poison ... ... | 750 |
| (3) | Balance ... ... | 666 |
| (4) | Water ... ... | 500 |
| (5) | Virtue and Vice ... ... | 250 |
| (6) | Rice ... ... | 125 |
| (7) | Oaths ... ... | 62 |
[69]:
[70]:
If the king hears that the other sādhanas have been used dishonestly he should rectify them by Divya.
[71]:
A recent commentary proposes that śirovarttī means sammukhasthitaḥ [sammukha-sthita], that is to say, when one is undergoing the ordeal, the other party must stand in front of him. But we follow here the explanation of the Mitākṣarā (vide under II.95), which says ‘śīrṣaka’ or ‘śīras,’ (lit. head), is the last step of a law-suit, (that is,) decision, and signifies punishment; and he who would consent to abide by that (in case the contrary is proved) is one who resolutely urges the accusation, that is, ‘śīrṣakastha’.
[72]:
Cases of forgery and false charges of debts.
The Divya is to be appplied where, even in the absence of loans, documents are presented which resemble the actual ones in name, gotra &c.
[73]:
Śukranīti does not advocate the conditions of an over-theocratic life but represents the features of a pre-eminently human and rational state of things. Thus if two ‘sādhanas’ are brought forward—one human and the other divine, the human is to be accepted. Even if the human evidence to partial, that is more adequate than a couple ‘divya’.
[74]:
If the king and officers be greedy, forgery, counterfeiting, etc., become prevalent among the subjects.
[75]:
The king must not accept the statements of informers without careful investigation as to their worth.
[77]:
The appellant may argue that the first trial was vitiated because of the defects of officers, defects of witnesses, and defects of the king himself as regards procedure, judgment, passing of sentence, &c.
avasanna—Oppressed.
paunarbhava—Repetition of the case—appeal.
punardarśana—Re-examination, Review.
[78]:
The king really commits all these offences which are done by Amātya. ‘Prāḍvivāka, &c.
[79]:
These persons are the chattels, so to speak. Their earnings belong to their master like themselves.
[80]:
Mere possession does not constitute property.
[81]:
One should not without careful examination charge anybody with theft.
[82]:
saudāyika—derived from svadāya, i.e., one’s own possessions—here referring to what is technically the strīdhana or woman’s property. The wife will have svātantrya absolute authority over her own wealth (strīdhana) but not over the share which comes to her according to her position in the above order of claimants, i.e., according to the legal share by right of succession. This absolute right pertains to even immovables.
[84]:
Joint work, collective organisations, associations, etc., have been mentioned in Śukranīti, both in economic and political affairs of the ‘Śreṇīs’ and ‘Gaṇas’ &c.
pramukhya—The leader, master-craftsman.
[85]:
[86]:
anvaya—Family.
anvāhita—That which is deposited with a person to be delivered ultimately to another person.
[87]:
[88]:
Cf., Chapter V. 193.
[89]:
Here is something like State Intervention in Credit-affairs.
[90]:
The Rate of Royalty upon Mining.