Vyavahāra () is an important concept of Hindu law denoting legal procedure. The term is analyzed by Kātyāyana as follows: "Vi means ‘various,’ ava means ‘doubt,’ hara is ‘removal’; legal procedure is called by the term vyavahāra because ‘it removes various doubts.’”K 26, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 180 Kane defines it as follows: "When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech, etc.) have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as debt), is said to be vyavahāra."P.V. Kane, History of Dharmaśāstra, Vol. 3, p. 247 According to Donald Davis, “There are two basic meanings of vyavahāra. The first is a general sense of practice, business, or everyday transactions. The other, specific sense is legal procedure, the processes of litigation including a trial.”Davis Donald, The Spirit of Hindu Law, forthcoming, chapter 6 Legal procedure according to the dharmaśāstras includes: court, listening to and assessing witnesses and their testimony, deciding and enforcing punishment, and the pursuit of Justice in the face of Injustice. Davis later quotes the in an attempt to answer the question why legal procedure came about in the Hindu tradition. The text states, “When men had dharma as their only focus and were speakers of the truth, there was no legal procedure, no enmity, and no (selfish) conflict. Legal procedure came into being when dharma was lost among men."NS Mā 1.1-2, adapted from Lariviere
Courts
According to the of there are four different kinds of courts of justice. The is a court established in a fixed place such as a town, the is not fixed in one place, but moving from place to place as on a circuit, the mudritā is the court of a judge appointed by the king, who is authorized to uses the royal seal, and the śāsitā is the court in which the king himself presides.Kane, P.V. History of the Dharmaśāstras Vol. 3 p. 277 The court assignment of a case was also very influenced by the situation of the litigants. "For those who stay in the forest the session should be held in the forest, for the soldiers in the army, and for the merchants in the caravans."B 1.73, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 175 Furthermore, “[t]he court-house should be decorated with flowers, statues, paintings, idols of gods and should be furnished with incense, throne or seat (for the king or judge), seeds, fires and water."C. II. P. 19 There is also differentiation among the different grades of courts. The king's courts are the highest grade, “but other tribunals were recognized in the and digests."Kane, P.V. History of the Dharmaśāstras Vol. 3 p. 280 It appears there were no court fees in ancient India, except for fines imposed by the king, and texts such as the , , , and ’s Arthaśāstra prescribe rules for payment after a suit was decided.Kane, P.V. History of the Dharmaśāstras Vol. 3 p. 294
The King's Role
The King or has the responsibility of overseeing legal procedure and then enforcing their results. According to Nārada, "The king is the assistant of the sacred law when two people are engaged in a lawsuit; he should investigate cases accurately, free from affection or hatred."NQ 1.4, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 171 For the King, vyavahāra is part of his personal caste dharma. In the section on laws for the king, the states, “Arranging in this manner for the discharge of all his obligations, he should protect these subjects with care and vigilance. When bandits abduct from his realm subjects screaming for help, while he and men in his service stand by—he is surely dead, he is not alive. For a , the protection of his subjects is the highest Law; the enjoyment of the specified rewards binds the king to this Law.”Olivelle, Patrick, The Law Code of Manu, Oxford University Press, 2004, p. 116-117 The king's personal dharma is inextricably linked to legal proceedings and his dharma is determined by the merits and demerits of his subjects, therefore it is crucial he bring about justice. This is why it is stressed in the dharmaśāstras how important it is for the king to be fair and righteous and to appoint learned Brahmins to counsel and help him in legal matters. If the king cannot be present at a legal proceeding, he appoints a Brahmin to take his place. In the absence of a Brahmin, a kşatriya should be appointed; in the absence of a kşatriya, a vaiśya.Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 172-173
Judges
Cases were examined by either the king or by the chief judge. The chief judge collaborated with the other judges to devise the questions necessary for investigation, and "[i]n a lawsuit he puts question and counter-question; he speaks first in a friendly way. Therefore he is said to be the prādvivāka (=chief judge)."B 1.69, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 174 The of Kātyāyana states that, “ The chief judge and the sabhyas were not to hold conversation in private with any one of the litigants while the suit was pending and if they did so they were liable to be fined.” .Kane, P.V. The History of the Dharmaśāstras Vol. 3, p. 270 If a decision is given that is against the and usage, through friendship, greed or fear, each was liable to be fined twice as much as the fine to be paid by the defeated party. II. 4; I. 67; and of Kātyāyana 79-80 Kane states, “it was believed that when a just decision was given, the king and his sabhyas became free from sin, the sin only reaches him when he is guilty (whether plaintiff or defendant); but where an unjust decision is rendered a quarter of the sin falls on the litigant (plaintiff or defendant) who is guilty of adharma (that which is not in accord with the law), one quarter each on the witnesses, the sabhyas and the kings. Additionally, a judge were to be banished (1) if they utter injustice, (2) if they live on bribery, or (3) if they betray other people’s confidence.B 1.107 translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 179 “A false judge, a false witness, and the murderer of a brahmana are said to be equally deep in guilt.”B 5.34ab Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 179
Legal Proceedings There are four parts of Hindu legal procedure: The Plaint The Reply The Trial The Decision
The Plaint
A plaint is a probandum, i.e. “of something that deserves to be proved, of a quality-bearer characterized by qualities that deserve to be demonstrated. Thus, it means: a valid plaint is an utterance of (the plaintiff’s) own opinion.”Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 189-190 The valid plaint must be 1) free from the defects of the statement, 2) provided with a valid cause, 3) definite, 4) in accordance with common practice, 5) concisely worded, 6) explicit, 7) free from doubts, 8) free from contradictory causes, 9) capable of meeting opposing arguments.B 2.14-15, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 189 Therefore, the king should reject a plaint if it is “1) unknown (not made by anybody), 2) defective, 3) meaningless, 4) purposeless, 5) unprovable, or 6) adverse.”B 2.8, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 194 A plaint is unknown if it is not made by anybody, and it is adverse if it is directed against the chief judge, the king, a town, or the kingdom. According to Nārada, “The statement (of the plaint) is considered to be the fundamental part of legal procedures; if the plaintiff falls short of it, he is lost; if he carries it through, he is successful.”Nmā 1.6, translated by Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 192 Once a plaint is made, the plaintiff cannot change it (i.e. changing the amount of money the plaintiff believes another man owes him). Additionally, the plaint needs to be written down, with all minute details of the situation recorded, or it is considered invalid. Most plaints included one of the eighteen Hindu titles of law, called the Vyavahārapadas.
Vyavahārapadas
Vyavahārapada means "the topic or subject matter of litigation or dispute."Kane, P.V. The History of the Dharmaśāstras Vol. 3, p. 248 Manu (Hinduism) divided the vyavahārapadas into eighteen titles of law. Manu acknowledged that "the enumeration of the 18 vyavahārapadas was a matter of a convenient arrangement and that the number 18 did not embrace all disputes whatever but only the largest number of disputes and the most important among them." The eighteen titles of law include "(i) the first is the non-payment of debts; (ii) deposits; (iii) sale without ownership; (iv) partnerships; (v) delivery and non-delivery of gifts; (vi) non-payment of wages; (vii) breach of contract; (viii) cancellation of a sale or purchase; (ix) disputes between owners and herdsman; (x) the Law on boundary disputes; (xi) verbal assault; (xii) physical assault; (xiii) theft; (xiv) violence; (xv) sexual crimes against women; (xvi) Law concerning husband and wife; (xvii) partition of inheritance; and (xviii) gambling and betting.”Olivelle, Patrick, The Law Code of Manu, Oxford University Press, 2004, p. 123
Wagers The plaint is also sometimes accompanied by a legal wager, or paņa. A legal proceeding is attended with a wager if “before writing down the plaint, a wager is placed like this: ‘The one who is defeated here will give so much to the winner by way of punishment.’"Rocher, Ludo. Vácaspati Miśra: Vyavahāracintāmaņi: A Digest on Hindu Legal Procedure. Gent, 1956. p. 180 If the litigant who places a wager loses the case, he must pay both the wager amount they placed and the punishment for the crime. However, if one litigant places a wager and the opposing party does not, and the waging litigant is successful in the case, the defeated litigant need only pay the fine for the crime, not the wager. In a sense, a wager can be seen as a form of evidence; if a defendant wages his entire estate in his defense, he must be certain of his innocence. Additionally, a wager is only considered legitimate if it is articulated in a written agreement between the litigants.Lariviere, Richard W. "The Judicial Wager in Hindu Law." Annals of the Bhandarkar Oriental Research Institute. 62. (1981) p. 140 The specific logistics of wager-placing are unclear; “it is uncertain whether the paņa is made by one or both of the parties, whether it is paid to the ‘winner’ of the suit or to the king, and what size the paņa must be.”.Lariviere, Richard W. "The Judicial Wager in Hindu Law." Annals of the Bhandarkar Oriental Research Institute. 62. (1981) p. 137 The Mitākṣarā of Vijñāneśvara on Yājñavalkya 2.18 explains the wager payment in the following way: “There in that legal proceeding which includes a ‘wager,’ the king should make the loser, the defeated one, pay the aforementioned fine and his wager to the king, and the amount under litigation to the plaintiff.”Lariviere, Richard W. "The Judicial Wager in Hindu Law." Annals of the Bhandarkar Oriental Research Institute. 62. (1981): p. 137
The Reply