by Kalita Nabanita | 2017 | 87,413 words
This page relates ‘Conclusion’ of the study on the Vyavaharadhyaya of the Yajnavalkya-smriti: one of the most prominent Smritis dealing with Dharmashastra (ancient Indian science of law), dating to the 1st century B.C. The Yajnavalkyasmriti scientifically arranges its contents in three sections: Acara (proper conduct), Vyavahara (proper law) and Prayashcitta (expiation). Vyavahara deals with judicial procedure and legal system such as substantive law and procedural law.
The present work entitled ‘The Vyavahārādhyāya of the Yājñavalkyasmṛti: A Comprehensive Study’ concentrates on an exhaustive deliberation of the Vyavahārādhyāya of the Yājñavalkyasmṛti. In ancient India, along with other branches of knowledge, there was also great advancement in the field of law. The Smṛtis have been acknowledged and recognised as one of the principal sources of the sacred law applicable to all the Āryans. It codifies the guiding rules and principles systematically, scattered here and there in the Vedas, included in the Dharmasūtras, as well as customs and usages, which are accepted and practised by the society.
The Yājñavalkyasmṛti holds a prominent place in the Smṛti literature due its systematic divisions of subjectmatters and progressive view in many aspects. It is considered next in importance to the Manusmṛti according to the traditional view. In effect, it has become the ruling authority throughout the country during British Rule. This Smṛti embodies the rules of practice in religion, political, social and legal life of people. The Vyavahārādhyāya is the most important of all the three parts, as it deals with vyavahāra in the sense of secular law as an independent subject, which has settled the pattern and form of Hindu law for future. There are a large number of commentaries written on this Smṛti, of which the Mitākṣarā commentary is considered the most comprehensive and authoritative because of its merits. In the present study, the commentary of Mitākṣarā is followed. However, the views of the commentators like Viśvarūpa, Aparārka, Śūlapāṇi and Mitramiśra are also considered and are cited when found necessary with the context.
The present study comprises six chapters.
The first chapter:
The first chapter deals with a detailed introduction to the Smṛti literature. The word smṛti, in its wider sense, indicates all ancient non-Vedic works, whereas in its narrower sense, the word smṛti signifies the Dharmaśāstras. The Dharmasūtras and the Smṛtis are considered two species of the Dharmaśāstras. Sometimes, the term dharmaśāstra is applied to the Smṛtis as distinct from the Dharmasūtras. The Smṛtis, written in metrical form, represent the special kind of treatises dealing with the regulations on right, duty, custom, usage, law, polity, morality, religion, ritual, sin, expiation, etc., and all other aspects of human lives for the proper management of the society, which either accept the authority of the Vedas or do not oppose it. The subject-matter of the Smṛtis are more or less same with the Dharmasūtras, but the difference may be drawn on the basis of style, form, arrangement of topics, relation with the Kalpasūtras or on affiliation to certain Vedic schools, etc. The chronology of the Dharmasūtras and the Smṛtis is not settled definitely. It seems to be a justified view to hold that the metrical Dharmaśāstras or the Smṛtis have been composed simultaneously with the comparatively late Dharmasūtras. The exact date of the composition of the Smṛtis is difficult to ascertain, which covers different periods extending to separate ages. The period of composition of the Smṛtis is marked with three stages, viz., centuries before the Christian era, the first centuries of the Christian era and finally from 400 A.D. to 1000 A.D. A large number of the Smṛtis are mentioned in the existing Smṛtis or in the later Nibandhas, of which only a few are found, and many of them appear to be lost, some exists in fragments and some are known from quotations only. The Manusmṛti, the Yājñavalkyasmṛti, the Nāradasmṛti, the Bṛhaspatismṛti, the Parāśarasmṛti and the Kātyāṇasmṛti are regarded as major and important in the realm of the Smṛtis. The primary Smṛtis are briefly introduced in this chapter.
The Yājñavalkyasmṛti occupies an eminent and unique place in the arena of the Smṛti literature. A detailed introductory note on the Yājñavalkyasmṛti is prepared in this chapter, which discusses on the author, date, texts, style, contents, relation with other ancient literature, commentaries of the Smṛti. The work assigns the authorship to Yājñavalkya, who is described as an inhabitant of Mithilā. The author claims to be the same with the most illustrious sage Yājñavalkya of Vedic tradition. The language, style and the point of time of composing the Smṛti and the Vedic literature, associated with the name of Yājñavalkya as seer, do not suggest that the writer of the Smṛti is identical with the Vedic sage Yājñavalkya. The Yājñavalkyasmṛti represents a date and stage after the Manusmṛti and prior to the Nāradasmṛti, the Bṛhaspatismṛti. It is placed between first century B.C. and third century A.D. The Yājñavalkyasmṛti shows affinity with the Śuklayajurveda, the Arthaśāstra, the Manusmṛti, the Agnipurāṇa and the Garuḍapurāṇa, etc. Numerous commentaries on the Yājñavalkyasmṛti, such as written by Viśvarūpa, Vijñāneśvara, Aparārka, Śūlapāṇi and Mitramiśra, etc., have added to the authority of the Smṛti and made it easily intelligible. The style of the Yājñavalkyasmṛti is significant due to its brevity and consistency with clarity, which is hardly ever ambiguous.
For the first time, the subjects of the Smṛti literature have received a systematic, well-arranged and scientific treatment in the Yājñavalkyasmṛti under three sections viz.,
- ācāra (rites, custom or proper conduct)
- vyavahāra (administration of justice or proper law)
- prāyaścitta (expiation).
In these divisions, Yājñavalkya devotes, more or less, equal length to each section, relegating all topics to their proper positions, which is not found in the earlier works on dharma.
The second chapter:
The second chapter of the present work is entitled ‘the Vyavahārādhyāya of the Yājñavalkyasmṛti’. The first part of this chapter highlights the concept of emergence of vyavahāra from dharma. The Smṛtis are the earliest and most important records of development in the field of legal system in India. The striking characteristics of law in ancient India, manifest law as a mixture of religion, morality, ethics and positive law. The emergence of vyavahāra from dharma marks the gradual and slow process of separation of law from morals and religion. In the early Vedic times, the origin of the concept of law can be traced back to the use of the term ṛta. Subsequently, the idea of dharma took the place of the ṛta in the next stage of development of law. The term dharma includes widest verities of meaning. The most common or frequent sense of dharma delivered in the Dharmaśāstras is the privileges, duties, obligations of a man, his standard of conduct as a member of one of the castes, or as a person, in a particular stages of life. Thus, it connotes all kinds of rules such as religious, moral, legal, metaphysical, or scientific, in its widest sense. In the process of its development, the word dharma used to give the meaning depending on its contents.
Dharma under the title vyavahāra includes the rules of secular law, evolved by the society, through the ages. From the various definitions discussed in this chapter, vyavahāra appears to be a judicial proceeding, wherein the truth of a claim or charge made against a party, if not admitted, is to be decided according to the rule prescribed for it. Therefore, vyavahāra suggests a more developed concept of law and it deals with secular or positive law corresponding to modern sense of law. Though, vyavahāra is a part of dharma, yet some points of differences are noticed. The next part of this chapter discusses the domain of the Vyavahārādhyāya of the Yājñavalkyasmṛti. In the history of Indian legal system, the Vyavahārādhyāya of the Yājñavalkyasmṛti marks an important development as in this chapter, for the first time, the author lays down the portion, law proper, constituting as an independent subject bifurcating it from religion and other aspects of dharma. Thus, the Yājñavalkyasmṛti boasts of having established the authority of the legal texts in the Dharmaśāstra. The Vyavahārādhyāya contains sādhāraṇavyavahāramātṛkā, asādhāraṇavyavahāramātṛkā and vyavahārapadas, of which the first two are the two species of vyavahāramātṛkā that describes the judicial procedure and the last one, indicates and includes the disputes brought before the court at the instance of the parties. Therefore, the complete legal system, i.e. substantive and procedural law is laid down in the Vyavahārādhyāya.
The author treats the rules concerning each vyavahārapada as distinct head and deviates from the traditional list of eighteen vyavahārapadas, dealt with in the Manusmṛti. The number of vyavahārapadas, dwelt upon in the Yājñavalkyasmṛti is twenty, which is higher than the Manusmṛti, and the Nāradasmṛti. Yājñavalkya has not discussed the rules concerning the duties of husband and wife (strīpuṃdharma) within the twenty vyavahārapadas. It suggests that the author does not consider them as a subject falling within proper domain of vyavahāra. The vyavahārapadas are not distinctly divided into civil and criminal groups as found in modern days legal system. The vyavahārapadas possibly consisted of the most important disputes of law, which might have been derived from actual life of the people in accordance with the necessities of those days.
The last part of this chapter discusses the vyavahāramātṛkā, which are known as procedural law in modern legal system. The information furnished by the Vyavahārādhyāya, on the law of procedure, show considerable development of this branch, in the legal history of India. It corresponds in many aspects to the Code of Civil Procedure and the Code of Criminal Procedure of India legislated by the British Government. Yājñavalkya divides the judicial procedure into four parts i.e. the petition of the complainant, reply of the defendant, proof and decision. Like the civil cases of present legal system, a judicial procedure in the Vyavahārādhyāya starts with the institution of a suit by lodging a complaint to the king. The plaint is required to be equipped with necessary details, including the identity of the parties, which is also required in modern law of procedure.
The rules of the Vyavahārādhyāya, regarding the right of the defendant, to file his written statement, adducing evidence, etc., are also relevant to that of the Code of Civil Procedure. The success or defeat of the party is decided on the basis of evidence produced by the party and the same holds good in modern legal system. Another important rule of procedure that resembles the present day procedure of court is that both plaintiff and defendant are required to furnish security for the proper execution of the final order. It seems, at that time, the court fees were not necessary to be paid initially, while instituting the proceeding, as it requires nowadays. Yājñavalkya’s rule, relating to time limit, to present the defence is not rigid like that of the Manusmṛti. However, at the same time, he is conscious enough to ensure speedy trial in cases of serious nature, which fall under the category of criminal cases of modern age. The rule that king cannot grant what has not been alleged in the original plaint, incorporates a strict rule of pleading. The Code of Civil Procedure also states that the plaint must state specifically the relief claimed by the plaintiff. The doctrine that equity, rather than bare letter of the law should be followed, is reflected in the vyavahāramātṛkā, while declaring the rule that when the text of the Smṛtis differs, reasoning based on the usages of experienced prevails. The author stresses on proper application of justice, by restricting the use of ordeals, when other human proofs are available. The text under the vyavahāramātṛkā, contains the rule, concerning period of limitation, applicable to movable and immovable property for acquiring adverse possession. The Indian Limitation Act also prescribes the period of limitation for filing suits against the adverse possession of immobile property. The vyavahāramātṛkā seems to have recognized the law of review or appeal, which is not so well developed in the work of Manu. The conduct of an untruthful witness and parties to a dispute are so clearly described here that, even the modern legislation on law of evidence in India lacks such a minute description.
The third chapter:
The third chapter is entitled, ‘The Social Aspects Depicted in the Vyavahārādhyāya’. The law is a dynamic concept, it keeps on changing with the need of time and demand of the society. Therefore, it mirrors the contemporary society. The Vyavahārādhyāya also throws sufficient light on the socio-economic aspects of the then society. First of all, the chapter deals with the concept of caste system prevailing in the society during the time of composition of the Vyavahārādhyāya of the Yājñavalkyasmṛti. The caste system seems to be so well developed in the society, that in legal affairs also the distinction is followed. The society was divided, besides the four principal castes, viz., the Brāhmaṇa, the Kṣatriya, the Vaiśya and the Śūdra, into numerous castes and sub-castes. The members of the different castes had different status in the society. The four principal castes enjoyed a descending scale of position and privileges in the society. However, Yājñavalkya tries to reduce the influence of castes to some extent in the administration of law and justice than that of the Manusmṛti.
The Brāhmaṇas, being the highest order among the principal varṇas in the society, enjoyed special privileges. During the time of the Manusmṛti, the Brāhmaṇas were allowed to enjoy extreme supremacy, on the contrary, the Śūdras suffered from intense hostility, inhuman and cruel treatments. The Śūdras were differentiated from the three upper castes, represented by the Brāhmaṇas in the Manusmṛti. The Vyavahārādhyāya shows that though the Brāhmaṇas continued to enjoy some kind of favours in the society, yet their undue privileges were restricted to considerable extent. The laws of the Vyavahārādhyāya reveal that legal and political positions of Śūdras are uplifted and an improvement of them in social position may be observed than that of the Manusmṛti. In the Vyavahārādhyāya, the Śūdras are not differentiated from the Kṣatriyas and the Vaiśyas but in some aspects the Śūdras are treated on a par with them by using the term non-Brāhmaṇas.
Most of the cruel, corporeal punishments and draconian measures of Manu towards the Śūdras are either omitted or replaced with pecuniary punishment. It reflects the traces of change in the position of the Brāhmaṇas and the Śūdras in the society. There is not any repressive law against a Śūdra disputing with the Brāhmaṇa or against the Śūdra, learning or owning property and so forth in the law of the Vyavahārādhyāya. In the Vyavahārādhyāya, only Cāṇḍālas are mentioned as untouchable and pecuniary punishment is provided if they touch higher castes. At that time, the Śūdras were not considered untouchable. The Vyavahārādhyāya hints at the practice of inter-caste marriage in the contemporary society. Yājñavalkya has not incorporated the section on marriage under the Vyavahārādhyāya, he does not consider it as a subject of law, rather a ritual. In the society, eight forms of marriage were prevalent at that time. Polygamy was recognised in the society. The existence of twelve kinds of sons shows the importance of sons and the desire of the society for a male issue.
A brief discourse has been made on the status of women reflected in the Vyavahārādhyāya. It marks improvement in the proprietary right of woman. Yājñavalkya, for the first time, empowers the wife and daughter of a deceased sonless person with the right of inheritance placing them at the top of the heirs, whereas, the Manusmṛti is silent about the right of inheritance of the widow of a sonless man. Yājñavalkya defines the strīdhana liberally that has opened the scope to expand the proprietary capacity of woman widening the list of the strīdhana. Women had dominion over the strīdhana. The difference between the strīdhana and practice of dowry is shown in this context. The acceptance of paunarbhava son suggests the occurrence of remarriage of women in the society. There is no mention of satī custom in the Vyavahārādhyāya. Yājñavalkya has not censured the practice of niyoga like Manu, rather he seems to have approved it. The widows and unfortunate women were allowed to procreate offspring through the system of niyoga.
The prostitution was recognised in the form of a profession. The practice of keeping concubines was prevalent. Slavery was in practice but improvement and change in the institution of slavery was marked in the Vyavahārādhyāya. It was no more confined to the Śūdras as shown in the Manusmṛti. During the time of the Vyavahārādhyāya, the practice of selling and buying slaves like chattels was in force. As against the forcible slavery in the Manusmṛti, the Vyavahārādhyāya has codified the law regarding release of forcible slaves. The women slaves were protected under the law, by declaring the destruction of their embryo as an punishable offence. The economic condition of people are dealt with in this chapter. The Vyavahārādhyāya shows the growth and development in various spheres of economic activities of that time. Animal husbandry and agriculture had special importance in the society. People took various avocations such as of milkman, wine seller, washerman, actor, metalworker, artisan, weaver, physician, trader, etc. People had commercial intercourse with other countries even living beyond the sea. Merchants formed trading association for conducting business jointly.
The fourth chapter:
The fourth chapter is entitled, ‘The Political Aspect reflected in the Vyavahārādhyāya’. The Vyavahārādhyāya deals with the vyavahāradharma, which is a part of the rājadharma The Vyavahārādhyāya enjoins that the primary duty of the king is to administer justice by securing just settlement of disputes to his subjects and punishing the wrongdoers. The main political aspects reflected in this chapter include the judicial functionary of the State, king’s role and power in the administration of justice, various offences against the state, control of the king over trade and commerce, etc. The court of justice consisted of the king and members appointed by the king to assist him.
The king could appoint a learned Brāhmaṇa to preside over the court, when due to heavy pressure of work, the king was unable to attend the court. There were some other recognized agencies to decide the disputes besides the royal court, and it was an important aspect of Yājñavalkya’s administration of justice. The presence of these agencies are not known at the time of the Manusmṛti, which are categorised under the following heads, viz., the kulas, śreṇīs, the pūgas, etc., and each succeeding one having a higher authority in vyavahāra than the preceding one. They had the sanction of the king behind them. It perhaps resembled the modern Panchayat system of India. The king had the power to punish the unjust or corrupt judges and the officers. The king himself had to give away thirtyfold of what he earned from illegal fines. Thus, the king had to inflict punishment of heavy fine on himself. The king, as the protector of the property of subjects was under obligation either to recover or to compensate the victim of theft, robbery, etc., which appears to be logical. The king exercised control over the market, trade and commerce.
The sale and purchase in the country was conducted daily, according to the value fixed by the king. It was the duty of the king to fix the price of the commodities. In the matters, coming under the title of law termed prakirṇaka, the king enjoyed highest authority. The offences committed against the royalty attracted grave punishment. Another noteworthy characteristics of royal policy reflected in the Vyavahārādhyāya, was the presence of certain guild, corporations, etc., which perhaps had worked as individual autonomous bodies. The king was expected to have governed in co-operation of the popular bodies like trade guilds, village authorities, etc. The king was governed by practical aspect in administrative affairs, for which even gambling was recognized as a means for collecting tax. An interesting point, revealed in this chapter is that the king had executive and judicial power but the legislative power of the king was very limited, even the king was governed by the laws framed in the Smṛtis. The government conducive to public welfare was regarded as an important principle of legislation.
The fifth chapter:
The fifth chapter of the present work is entitled, ‘The Legal Tenets of the Vyavahārādhyāya and the Modern Indian Laws’. This chapter is the most voluminous of all the chapters of the present study. In this chapter, the twentieth vyavahārapadas, i.e., the title of law along with the detailed provisions on witnesses, document and ordeals are discussed. The chronology of the legal topics, as described by Yājñavalkya, is followed. At the time of Yājñavalkya, debt or loan was advanced by charging interest on it as a means to earn profit. If the creditor did not accept the debt amount, then the debtor could deposited it with a middle man and then interest stopped from that time. Similar provision is found now also in section 84 of Transfer of property Act. At that time, loan was secured by either surety or ādhi. Under modern law, the principle of ādhi is presented as two distinct set of laws, viz., pledge and mortgage. Ādhi resembling the nature of the mortgage known as english mortgage, usufructuary mortgage, and simple mortgage of Transfer of Property Act are found in the Vyavahārādhyāya. Yājñavalkya, at an early stage, recognized the act of god or king as valid defence, which are considered important defence at present under law of torts.
The rights and liabilities of the debtor and the creditor mentioned in the ṛṇādāna are similar with those of the mortgagor and mortgagee of Transfer of Property Act. Under the law of deposit, the person, who used on his own accord, the deposit entrusted on him was held guilty. At present, it is a criminal offence under Section 405 of Indian Penal Code. Yājñavalkya’s laws on deposit are traceable more or less with the provisions of Bailment incorporated in the Indian Contract Act. The idea of Yājñavalkya is same with the section 134 of Indian Evidence Act that the court can act even on the testimony of a single reliable witness. Giving false witness, inducing or forcing to give false witness is regarded as offence both in the Vyavahārādhyāya and in the Indian Penal Code. The law of evidence attaches substantial importance to documents in the Vyavahārādhyāya, which is not found in the Manusmṛti. The attestation mentioned under Indian Succession Act and the provisions under Indian Registration Act are found in conformity with the laws of Yājñavalkya regarding documents about the endorsement of the executants and the witnesses.
Yājñavalkya provides two rules of practical importance, i.e. after payment of debt in full or in installment the debtor should note on the back of the document or creditor should give receipt to the debtor and after discharge of the debt, the document created for that purpose should be destroyed or the creditor should issue another deed of discharge. The ordeals are not adopted under modern law as means of proof. A detailed discourse on the law of inheritance and partition prescribed in the Vyavahārādhyāya and the deviation or similarities with the provisions of Hindu Succession Act, 1956 is presented in this chapter. Sīmāvivāda is now the subject of Assam Land and Revenue Regulation 1886. The rules enumerated in the sīmāvivāda, which are found relevant to the present Act, are causing boundary marks to be erected in order to secure the boundary permanently, imposition of punishment for removal, destruction or damage of any boundary marks, reservation of land for pasture ground, etc. The basic principles of law dealt with under the head sale without ownership, are nowadays present in various provisions of the Acts, such as Sale and Goods Act, Transfer of Property Act, Indian Penal Code, etc.
The laws on gift found in the Vyavahārādhyāya are more or less similar with the provisions of Gift under the Transfer of Property Act. The basic intention of the law described in two places is that once a gift is made, it should not be revoked or a gift revocable at the pleasure of the donor is no gift at all. The law of defamation under section 499 and 500 Indian Penal Code is corresponding to the provisions of vākpāruṣya. The offences, which are found more or less similar to the rules of daṇḍpāruṣya, are assault, criminal force, hurt, grievous hurt, voluntarily causing hurt by weapons, wrongful restraint, wrongful confinement, mischief to property, mischief by killing or maiming cattle of Indian Penal Code. There is a law to punish the person, who makes another to commit the offence of sāhasa, or instigates the commission of the offence. Under modern criminal law, it is considered punishable offence known as abatement. The definition of sāhasa given by Yājñavalkya can be identified with the offences like robbery, dacoity, extortion, etc., of Indian Penal Code.
Counterfeiting of currency note is an offence found both in Vyavahārādhyāya and in Indian Penal Code. Modern law contemplates housebreaking as punishable offence, which is also mentioned in the Vyavahārādhyāya. Yājñavalkya provides punishment for adulteration of food items, which is at present regulated by the prevention of Food Adulteration Act, 1954. The liabilities imposed on buyer and sellers under Section 44 & 57 of the Sale of Goods Act, correspond to the provision incorporated by Yājñavalkya relating to non-delivery after sale. The fundamental aspects of partnership, expounded in the Vyavahārādhyāya are found relevant under the provisions of Indian Partnership Act, 1932. It is interesting to note that the title of law, called theft, in the Vyavahārādhyāya includes other subjects of modern criminal jurisdiction besides theft such as murder, causing miscarriage, mischief by fire etc. Yājñavalkya also prescribes death penalty for murder, but the various modes of executing death penalty of that time are not relevant under modern law. The title of law called strīsaṃgrahaṇa contains various criminal offences connected to women under modern law. According to the rule of Yājñavalkya, both man and woman, indulging in adultery, have to undergo punishment, but Indian Penal Code under Section 497 punishes only male offender alone.
Finally, the laws relating to miscellaneous matters are dealt with in this chapter. It lays down the provision for appeal. The rules provided by Yājñavalkya regarding liabilities of owner of conveyance and keeper of four-footed animals, for accidents occurred on road, seems to be based on the same principle with section 80 of Indian Penal Code that which is caused by accident or misfortune without any criminal intension or knowledge does not constitute an offence. Thus, the elements of the legal provisions prescribed in the Vyavahārādhyāya can be identified, more or less, with the various laws, in force in India at present. For most of the cases, the author advocates pecuniary punishment. He seems to have mitigated the severe and drastic penal provisions of previous times. He recommends comparatively mild penal policy. Several matters, e.g. ordeals, means of proof in courts, rules of procedure in the courts, the doctrine of possession and prescription, etc., have received more systematic and elaborate treatment in the Yājñavalkyasmṛti. An attempt has been made by him to bring the laws in harmony with the social moral ideas, which represent an advancement of social law and order. It is found that most of the modern Indian laws, in force at present, were not unknown to Yājñavalkya and similar acts were regarded as offences at that stage of the Indian legal jurisprudence. Some kind of procedural laws were followed at that time, though these were not so well developed and distinct like those found today in the Code of Civil Procedure and in the Code of Criminal Procedure. The perusal of the provisions of law found in the Vyavahārādhyāya justifies that civil rights were ensured in those days and the violation of the same attracted punishments.
After reviewing all the chapters, it can be summed up that, the Vyavahārādhyāya bears ample significance in various aspects. It furnishes manyfold information, as the development in the field of law is closely related with the development of commerce, political institutions, administration and with the contemporary social thought. The Vyavahārādhyāya throws prismatic light on the logical development of feelings and thoughts of the then Indian people. It marks in many aspects the liberal, lenient and progressive thought than that of the prevailing concepts that evolved prior to the Yājñavalkyasmṛti. It has widened the sphere of secular law for which it becomes the guiding source for later Smṛtikāras and the commentators. It contributes to a magnificent administration of justice and comparatively fair procedure at an early stage of development of judicial system in India. This rich field of knowledge would definitely inspire the researcher of various disciplines such as law, history, sociology, politics, etc.