About the Book

The book is a critical study of the law of evidence in ancient India from the days of Gautama and other ancient lawgivers and the centuries. It is a branch of legal as well as social history of India.

The book is divided into six chapters beginning with the problem of proof where problems like burden of proof and modes of proof where problems like burden of proof and modes of proof are dealt with. This is followed by a chapter on witness where admissibility of evidence and competency (or want there of) of witness are dealt with analytically. Production and examination of witnesses in court is also elaborated perjury, contumacy and other problems are also discussed. The next chapter deals with public and private documents, their evidentiary values, forgery, old documents and other problem, possession and ownership are the subject matters of the next chapter ordeals and special oaths are discussed in the fifth chapter. The concluding chapter analyses the materials discussed in the earlier chapter to find out if the law of evidence in ancient India could ensure justice.

A comparison of the law in ancient India with Roman law. The Muslim law mediaeval British law and modern law has also been made wherever such comparison has been found relevant.

The author is grateful to Honourable Sri Gati-krushna Misra, Retired Chief Justice of Orissa High Court for his foreword to the book.

About the Author

Dr. Shraddhakar Supakar, M.A., LL.M., Ph.D., Sahityacharya was formerly. The Dean of the faculty of law Sambalpur University, Orissa. Born in Sambalpur town in 1914, the began practice as a lawyer, after a brilliant academic career. He was elected to the Orissa Legislative Assembly in 1949, 1952 and 1985. He was a member of Lok Sabha in 1957-62 and 1965-67. He has been associated with the Utkal the Sambalpur and the Sri Jagannath Sanskrit Universities for a long period as a member of senates and the syndicates. He taught law in the Lajpatrai Law College from 1971 to 1975 and later joined as the principal of the above law college and worked from 1976 to 1978. He worked as a vice chancellor of Sri Jagannath Sanskrit Visvavidyalaya, Puri in 1983. He was also a member of the Official Languages (Legislative) Commission, Government of India, New Delhi (1975-76). His field of specialization is family law.

Foreword

Dr. Shraddhakar Supakar needs no introduction. He is a prodigious scholar in diverse subjects-Sanskrit, Mathematics, English literature and Law. He has utilised his deep knowledge in Sanskrit language to study the Law of evidence as prevalent in ancient India which was ennunciated by great thinkers and jurists like Manu, Yajnavalkya, Narad, Brihaspati, Katyayana and Vyasa: to name a few. With the evolution of society, social, political and economic thoughts and philosophy changed. Law is always moulded commensurate with the changing needs of a dynamic society. Some of the Laws of evidence prevalent in ancient India may appear to us as archaic and sometimes inhuman; yet many of the modem concepts of the Law of evidence were identical and similar to those as existed in ancient India. Things must be judged in their own context in relation to the prevalent conditions of a particular society.

Dr. Supakar has made a valuable contribution to the knowledge of Law by giving a clear analysis and comparative history of the old and the new. By going through this treatise, my own knowledge of Law has been enriched and I have no doubts that students of Law and History would find it very interesting and instructive.

Introduction

1. When I began my studies for a doctoral degree in law, I conceived the idea of a comparatively obscure and virgin field of "The Adjective Law in Ancient India". When I submitted the synopsis to the University for the approval of the concerned authorities, some of the learned members, not familiar with legal jargons, were intrigued by the use of the term "Adjective".

2. As I proceeded with the task of writing out the thesis, I found, to my dismay, that the field of research is too wide and too ambitious, I, therefore, concentrated my attention on the limited subject of "The Law of Procedure in. Ancient India". Later on, I revised the synopsis and resubmitted it on the aforesaid subject and finally submitted my thesis on "The Law of Procedure in Ancient India". It was bulky enough for a thesis. As even Dr. Kane had not dealt with the procedural Law of the Dharmasastra in any detail, I thought it worth while writing a book on the subject. I am no judge of themerit of that book. Perhaps the examiners were satisfied with the merit as well as the bulk of that thesis and considered me not unworthy of the degree of a doctorate.

3. While studying the law of procedure in ancient India in some depth, I had to study the law of evidence in ancient India. That is also a good and proper subject for study. Not much work has been done on that subject. I found a reference to a book on this subject by Dr. Amareswar Thakur from the History of Dharmasastra. I have not the good fortune of studying "The Hindu Law of Evidence"written by Dr. Thakur, The book is out of print since long. But I am very fortunate in making a study of the source materials of the Dharmasastras, the Dharmasastras and the commentators, I have formed my own judgment from these source materials. Other handicaps are the great distances of the places of big libraries like Calcutta, Delhi, Poone, Bombay and Madras. -Therefore, I have not quoted as. many learned authors as I should have liked to do, and have given my own observations and interpretations on the field of my study and research. I am certain of one remark, which I may make here. Not much work has been done on this subject (of my study in recent times. In subjects like constitution and .commercial law, important and learned books are published in appreciable number not only in India but also in other countries as well. But unfortunately for us in India, not much research work on the rich mine of Dharmasastric law is undertaken.

4. The reason is not far to seek. Legal History of India which the students of law (and also the advocates and judges) in India have to study begins with the year 1600 A.D., as if there was no law in this country prior to that date. It cannot 'be denied that law existed in this country from the dawn of Aryan Civilization. Whether that law conforms to the definition of law by eminent jurists like Austin, is another matter. But it certainly had the same force in India for milenia in the same sense as Roman law had its force in Roman empire and 'her colonies, not only during the heydays of Roman glory but even centuries after the fall of the Roman empire, Roman law 'was taught as a subject of study in law colleges in India some -decades ago. It is still studied in postgraduate law classes. Why 'is it still a subject for study in Britain and other countries? To meet the objection that a knowledge of Roman law is of no use at all in the legal profession, Professor Sherman said :

"It is based on the assumption that because the Roman state and tribunals persisted centuries ago, therefore Roman law itself also has long been dead. Now this conception of the fate 'of Roman law is historically inaccurate and false. The spirit 'of Roman law did not die-on the contrary it is still very much alive in our midst. (Moreover it was the majestic and beneficial Roman law, which more than any other single element brought civilization back to Europe, following the barbaric deluge of dark age").

5. This remark of Prof. Sherman applies mutatis mutandis to the possible objection that "a knowledge of ancient law of India is of no use at all in the legal studies in modern India".

6. Sir H. S. Maine says : "Hindu law has the oldest pedigree of any known system -of jurisprudence and even now it shows no sign of decreptitude. At this age, it governs races of men extending from Cashmere to cape Comorin, who agree in nothing else except their sub-mission to it. No time or trouble can be wasted, which is spent in investigating the origin and development of such a system and the cause of its influence"

Therefore, a study of the law of Evidence in ancient India is also worth while.

7. There is not enough material for the social history of India. Indian History, as we know it, consists mostly of the political history of India. Kings and their kingdoms, rise and fall of dynasties, wars and their consequences have been dealt with in most history books. About the great religious reformers, poets, philosophers and saints some mention is made. The puranas and kavyas deal with gods and kings, their loves and heroism. But how did the common man live? How did the society function? The social history of India, of which the history of law is only a branch, has not been adequately dealt with by historians and scholars.

8. The study of legal history of ancient India gives us some insight of the social system. It deals with the common man, the litigants crimes and punishment, the system of espionage, the law of gamblers, thieves, prostitutes, slaves, artisans and even tells of a valid partnership among thieves and robbers. There is a happy blend of the ideal and the real in the law laid down by the Smritis and the Arthasastra. Kautilya deals with, not merely the legal, but also the social and economic problems of his days. Ambassadors and spies, royal dancers and prostitutes, saints and beggars, black-marketeers and gamblers, magicians, judges, washermen, weavers, goldsmiths, the problems of slaves and their manumission, sanitation of towns and villages, have been dealt with by the lawgivers. Not enough has been written about them, because not adequate attention has as yet been paid to the social and legal history of India. Law does not operate in a vaccum, but is related to and functions in the society in which it is applied. Therefore, it is necessary to give a bird's eye view of the social system in which it operated.

Society in ancient India was divided into four varnas and several Jatis (or mixed varnas) , or castes, and four Ashramas or orders of life. The law is different for different varnas and differentAshramas. Men and women of higlier varnas enjoyed' certain privileges. Thus, for example, a shrotaya (a Brahmana versed in the vedas) was exempted from appearing in a court .as a witness. The oaths and ordeals administered to him were different from the forms of oaths and the nature of ordeals administered to a kshatriya, Vaishya or Sudra. The weight attached to his oral evidence in court was greater. These privileges were granted to a Brahmana on the assumption that he could be learned and busy in sacrifice, or teaching the sacred lores. But when a Brahmana took to the occupation of a cowhered, merchant, or servant, he could not claim the same privilege as an ideal Brahmana, However, in course of time, the privilege of caste by birth was granted by the courts.

9. In awarding punishment or coming to a judgment, the castes of the complainant (or the plaintiff), and that of the accused (or the defendant), and the subject matter of the transaction were very relevant and important. Thus the theft of gold of a Brahmana was a more serious offence than the theft of gold of any other man. A Brahmana assaulting a Shudra got off with light punishment whereas a Shudra assaulting a Brahmana was punished very severly. Killing prostitute was a light offence, but killing a learned Brahmana was a serious offence, as well as a great sin.

10. Though Buddhism and Jainism led to a protest against the privileges of higher castes, no Buddhist or Jaina lawgiver provided any alternative to the system of law laid down in the Dharmasastras.

11. The sources of law, according to ancient scriptures, were: (a) the Shruti or the vedas, (b) the smritis or the Dharmasutras and the Dharmasastras, and (c) Sadachara (literally the conduct of good people) or custom. Manu says that besides shruti, the smritis and sadachara, what is agreeable to oneself is also a source of Dharma. Yajnavalkya adds a fifth source, namely, desire born out of due deliberations.

12. Veda, the word of God is of unquestionable authority, which every political sovereign is most imperatively enjoined to obey and enforce as law. However, there is not much of positive law inshruti. Reference to the matters dealing with the law of evidence in shruti has been made in some places in the different chapters of this book.