Chapter 5.13 - Laws Relating to Transgression of Compacts

[Full title: Laws Relating to Transgression of Compacts or Breach of Established Usage]

Saṃvidvyatikrama has been adopted as one of the vyavahārapadas by the Smṛtis. Manu and Yājñavalkya have termed it as saṃvidvyatikrama, but Nārada has employed the term samayasyānapākarma to indicate the same vyavahārapada. The term saṃvid is shown to be the synonym of the term samaya in the Amarakośa.^[1] Medhātithi holds that in the context of the vyavahārapada known as saṃvidvyatikrama, samaya and saṃvid denote agreement or convention, which is confirmed or arrived at according to the acceptance of many.^[2] The Nāradasmṛti describes that the set of rules settled amongst pākhaṇḍis, naigamas and like others are known as samaya, i.e., compact or established usage, breach of such samaya gives rise to the title of law called saṃvidvyatikrama.^[3] Vijñāneśvara observes, while commenting upon this title of law in the Yājñavalkyasmṛti, that settlement of rules according to the special provision of law is a compact and their non-violation means observance of those rules. Therefore, non-observance of those rules causes the title of law.^[4]

Yājñavalkya states that one should observe the compacts or customary rules being not in conflict with his own dharma and should carefully follow those duties imposed by the king.^[5] He prescribes that the king should banish one depriving him from all his possession, who embezzles the property of a gaṇa and violates their usage or compact.^[6] Gaṇa refers to the association of people residing in a village or town, etc.^[7] Regarding the punishment advocated by Yājñavalkya, the Mitākṣarā opines that it should be imposed in cases of aggravated offences or the like.^[8] The members of the associations are under obligation to abide by the advices or directions given for the interest or welfare of the public body and who does not comply with it or acts otherwise is to undergo the punishment of the first amercement.^[9] In this context, the Mitākṣarā comments that among the members, the advice given by those members who are competent for that purpose as to the interest of the association should be followed.^[10]

Yājñavalkya stresses to give priority on the part of the king to the groups and associations representing a special section of the people. It is the duty of the king to attend the business of those members of association who approaches the king in connection with the affairs of the association. Moreover, after completion of their business, the king should honour them with gifts, reception and expressions of civilities before sending them away.^[11] The person, who has been sent on the business of the group, should deliver to the group whatever he receives on behalf of it. He shall be subject to a fine equal to eleven-fold of what is obtained by him on non-delivery of it to the association. ^[12] These provisions are very accurate to maintain the internal discipline, ethical and moral conducts of the members of the association and also to prevent them from deviating from the right path induced by greed, etc. Therefore the author also emphasizes that those who administer the affairs of the group should be possessed of certain qualities, such as, well-versed in the rules of dharma, purity of mind, free from avarice, etc. Others should execute their directions.^[13] This law of Yājñavalkya holds good for all the time. For smooth functioning and proper management of the affairs of an organization or association, the character, and integrity of the person on administration are of utmost importance.

These rules are also applicable for śreṇis, naigamas, pākhaṇḍis and gaṇas. It is the duty of the king to preserve their peculiar rules of conduct and make them follow their previous professions.^[14] In this context, the Mitākṣarā explains śreṇi as the bodies of artisans earning their livelihood on similar arts and crafts. Naigamas are the groups of people, who accept the authority of the Vedas, e.g., Pāśupatas etc. On the other hand, pākhaṇḍis are the group of people, who do not acknowledge the authority of the Vedas, e.g., Nagna, Saugatas, etc. Gaṇas are the associations of men living by same professions, e.g., soldiers and the like.^[15]

It appears that the law dwelt upon within saṃvidvyatikrama tries to regulate the conduct of members of a social or cultural association or body corporation, having common interests. Braja Kishore Swain observes that saṃvid here indicates notional change, they are not required to make a formal contact for this purpose.^[16] Considering the comparable provisions in modern law, M. Rama Jois is of the opinion that the Societies Registration Act, 1860, laws governing Co-operative Societies, The Companies Act, 1956, etc., regulating the rights and liabilities of the individual members, affairs of associations formed for various purposes may be considered as some of the legislations of that kind.^[17] Moreover, at present, custom is regarded as a valid source of modern Hindu law and as such, customs of some special sects or people are recognized under various Acts.

Footnotes and references:

[1]:

samayāḥ śapathācārakālasiddhāntasaṃvidaḥ/ Amarakośa,3.149

[2]:

samayaḥ saṃvit saṅketaḥ-idaṃ mayā bhavatāmanumate niścitaṃ artavyamityabhyupagamaḥ / Medhātithi on Manusmṛti,8.219

[3]:

pāṣaṇḍinaigamādīnāṃ sthitiḥ samaya ucyate / samayasyānapākarma tadvivādapadaṃ smṛtam// Nāradasmṛti, 4.10.1

[4]:

pāribhāṣikadharmeṇa vyavasthānaṃ samayastasyānapākarmāvyatikramaḥ paripālanaṃ tadvyatikramyamāṇaṃ vivādapadaṃ bhavatītyarthaḥ// Mitākṣarā on Yājñavalkyasmṛti,2.185

[5]:

nijadharmāvirodhena yastu sāmayiko bhavet/ so’pi yatnena saṃrakṣyo dharmo rājakṛtaśca yaḥ// Yājñavalkyasmṛti,2.186

[6]:

gaṇadravyaṃ haredyastu saṃvidaṃ laṅghayecca yaḥ/ sarvasvaharaṇaṃ kṛtvā taṃ rāṣṭrādvipravāsayet// Ibid.,2.187

[7]:

yaḥ punargaṇasya grāmādijanasamūhasya saṃbandhi… / Mitākṣarā,Ibid.

[8]:

ayaṃ ca daṇḍo’nubandhādyatiśaye draṣṭavyaḥ/ Ibid.

[9]:

kartavyam vacanaṃ sarvaiḥ samūhahitavādinām/ yastatra viparītaḥ syātsa dāpyaḥ prathamaṃ damam// Yājñavalkyasmṛti,2.188

[10]:

yastu gaṇināṃ madhye samūhahitavādivacanasīlāstadvacanamitarairgaṇānāmantargatairnnusaraṇīyam/ Mitākṣarā,Ibid.

[11]:

Yājñavalkyasmṛti,2.189

[12]:

samūhakāryaprahito yallabhela tadarpayet/ ekādaśoguṇaṃ dāpyo yadyasau nārayetsvayam// Ibid.,2.190

[13]:

dharmajñāḥ śucayo’lubdhā bhaveyuḥ kāryacintakāḥ/ kartavyaṃ vacanaṃ teṣāṃ samūhahitavādinām// Ibid.,2.191

[14]:

śreṇinaigamapākhaṇḍigaṇānāmapyayaṃ vidhiḥ/ bhedaṃ caiṣāṃ nṛpo rakṣetpūrvavṛttiṃ ca pālayet// Ibid.,2.192

[15]:

ekapaṇyasilpopajīvinaḥ… āyudhīyādīnāmekakarmopajīvinām/ Mitākṣarā,Ibid.

[16]:

Swain, B.K., The Voice of Verdict, page144

[17]:

Rama Jois, M., Op.cit., page 184