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Sources of Law in Ancient India with Special Reference to Manusmriti and Arthashastra

November 30, 2022

Sources of Law in Ancient India with Special Reference to Manusmriti and Arthashastra

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At the beginning of the Vedic period, we find no reference to the establishment of a trial. The jurisprudence of ancient India was shaped by the concept of “Dharma” or rules of good conduct as described in the various manuals that explain the Vedic scriptures such as “Puranas” and “Smritis”. The king had no independent authority, but derived his powers from the “Dharma” he was supposed to maintain. The distinction between a civil injustice and a criminal offence is clear. While civil injustice referred primarily to conflicts of wealth, the concept of sin was the yardstick by which crime should be defined. (Basham, 1967; Jois, 1990). The Maurya dynasty, which settled in the 4th century BC. had a strict penal system that required both mutilation and the death penalty for minor offences (Sharma 1988). Nelson had stated in an 1887 legal memorandum before the Madras High Court of British India: “There are various contradictions and contradictions in the Manu Smriti itself, and that these contradictions would lead to the conclusion that such a commentary does not establish principles of law but is merely of a recommendatory nature.” [7] Mahatma Gandhi noted the inconsistencies observed within Manusmriti as follows: Other scholars point out the contradictions and have questioned the authenticity of the verses and the extent to which the verses were subsequently altered, inserted or interpolated into the original. Sinha, for example, claims that less than half or only 1,214 of Manusmriti`s 2,685 verses may be authentic.

[62] Moreover, the verses are contradictory. [63] Verses such as 3:55-3:62 of Manusmriti, for example, glorify the position of women, while verses such as 9:3 and 9:17 do the opposite. [62] Other passages found in Manusmriti, such as those referring to Ganesha, are modern-day insertions and fakes. [64] Robert E. Van Voorst notes that verses 3:55-60 speak of respect for a woman in her home, but in a strong patriarchal system. [65] These assessors or jurors were to express their opinions without fear, even to the point that they disagreed with the sovereign and warned him that his own opinion was contrary to law and fairness. Katyayana says, “Experts should not stand idly by if they see the ruler inclined to settle a dispute in violation of the law; If they remain silent, they will go to hell accompanied by the king. The same instruction is repeated in an identical verse in Shukr-nitisara. The sovereign – or the presiding judge in his absence – was not expected to overturn the jury`s verdict; rather, it should issue a decree (Jaya-patra) in accordance with their council. Shukr-nitisara says, “The king, after observing that the experts have rendered their verdict, should issue a decree (Jaya-patra) to the winning party.” Their status can be compared to the Judicial Committee of the Privy Council, which “humbly advises” their sovereign, but their advice is binding. It can also be compared to the people`s experts under the Soviet judicial system, who sit with the professional judge in the People`s Court, but are equal to him and can annul it.

However, if the decision of the Sabhyas (judges) was fined and removed from office, their property was also confiscated. They forced us to make amends for the loss. If Sabhyas` decision is favored by greed, fear, friendship, etc., everyone has been punished twice. That in all proceedings concerning inheritance, marriage, caste and other religious customs or institutions, the law of the Qur`an with regard to the Mohammedans [Muslims] and that of the Shasters with regard to the Gentoos [Hindus] must be observed without exception. As for the 18 legal titles, Yajnavalkya follows the same pattern as in Manu with slight modifications. On issues such as women`s inheritance rights and property rights, the status of the Sudras and criminal sanctions, Yajnavalkya is more liberal than Manu. He deals extensively with topics such as the preparation of valid documents, mortgage law, collateral, partnership and joint ventures. Interpretation of legal documents Artha Shastra and Manu Smriti are considered important treaties for the legal system. An independent school of legal practice existed in ancient Indian societies.

Some general principles related to judicial procedure stipulate that in case of disagreement between two texts of Smriti, justice must be followed after use. In the event of a conflict between a text of Smriti associated with the Dharma and a text relating to Artha, the former shall prevail.

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