Transcript brihaspati - Notes Milenge

BRIHASPATI
HE IS MORE CLOSER TO MANU AS HIS WORK HAS BEEN PROVED TO
BE A VATTIKA ON MANU SMRITI.
HE ASSIGNS A PREMIER PLACE TO THE CODE OF MANU,YET HE
EXPLAINS ,AMPLIFIES AND DOES NOT HESITATE TO MODIFY ITS
RULES ON VARIOUS TOPICS WHEREVER FOUND NECESSARY.
ABOUT THE JUDICIAL PROCEEDINGS HE SAID THATIN THE FORMER
AGES MEN WERE STRICTLY VIRTUOUS AND DEVOID OF
MISCHIEVOUS PROPENSITIES.NOW THAT AVARICE AND MALICE
HAVE TAKEN POSSESSION OF THEM,JUDICIAL PROCEEDING HAVE
BEEN ESTABLISHED.
HE ADDED TO THE NARAD LIST OF THE NINE MEMBERS OF THE
COURT OF JUSTICE THE OFFICER OF THE KING AND MAKES IT TEN.
SIMILARLY IN PLACE OF NARAD’S RIGHTEOUS OFFICER HE PUTS
THE AUTHORISED PERSON(ADHIKRITA) OR THE CHIEF JUDGE
(ADHYAKOA).HE ALSO EXPLAINS THE FOR THE FIRST TIME THE
FUNCTIONS OF THESE MEMBERS .
HE SAID THAT THE KING SHOULD INFLICT PUNISHMENT BASED ON
THE DECISION OF THE JUDGE AND THE ASSESSORS.THE
NUMERICAL STRENGHT OF THE SABHAYAS IS PUT AT SEVEN,FIVE
OR THREE.
ELSE WHERE,WITHOUT STATING CLEARLY THE FUNCTIONS,HE
ADDS MINISTERS AND THE PUROHOTA TO THE LIST OF MEMBERS
OF THE COURT.
HE SPOKE OF THE FOUR COURTS ------1.PRATISTHITA: COURTS WHICH SAT IN A TOWN OR AVILLAGE.
2.APRATISTHITA:WHICH HAS NO FIXED SEAT.
3.MUDRITA:ONE FURNISHED WITH THE KING’S SIGNET RING
SUPREINTENDED BY THE CHIEF JUDGE.
4.SASITA:DIRECTED BY THE KING HIMSELF.
HE WARNS THE KING THAT HE SHOULD NOT MEDDLE WITH
DISPUTES OF ASCETICS AND OF PERSONS VERSED IN SOCERYAND
WITCHCRAFT WHICH SHOULD BE SETTLED BY PERSONS FAMILIAR
WITH THE THREE VEDAS.
HE ALSO INTRODUCES THE FIVE GRADES OF COURT .
HE STATES THAT KULA,SRENI,GANA AND OTHER PERSONS
DULY AUTHORISED BY THE KING SHOULD DECIDE LAW SUITS
EXCEPT CASES OF VIOLENT CRIMES.
HE FURTHER ADDED THAT THE AUTHORISED PERSON AND
THE KING WERE THE LAST RESORT OF PASSING THE
SENTENCE TO WHOM ,WOSE CAUSE HAD BEEN PREVIOUSLY
TRIED MIGHT APPEAL IN SUCCESSION.
IF A CAUSE HAD NOT BEEN DULY INVESTIGATED BY THE BY
KULA IT COULD BE DECIDED BY SRENI,IF IT HAD NOT BEEN
EXAMINED BY SRENI IT COULD BE DECIDED BY THE GANA
AND FINALLY BY THE ROYAL JUDGES.
HE COOROBORATES WITH NARAD WHEN HE SPOKE OF THE FOUR
MODES OF DECISION NAMELY THOSE ACCORDING TO
DHARMA,VYAVAHARA,CHARITRA AND RAJAJNA.
HE ALSO SPEAKS OF THE DIFFERENT METHODS OF DECIDING A
SIUT BY EQUITY,BY OATHS,BY CONFESSION OF THE ACCUSED,BY
PROOF,BY INFERENCE AND BY RAJAJNA.
HIS CONCERN FOR EVEN-HANDED JUSTICE BECOMES EVIDENT
WHEN HE AMPLIFIES RULES RELATING TO DIFFERENT CLASSES OF
EVIDENCE AND DESCRIBES THE CHARACTERSTICS OF EACH ONE
OF THEM FOR THE FIRST TIME.
HE ALSO SPOKE OF THE 12 KINDS OF WITNESSES.GENERALLY
RESPECTED,HONOURED,PIOUS, AND RELIABLE PERSONS OF THE
SAME CASTE AS THE ACCUSED,WHEN POSSIBLE WERE PREFERRED
FOR EVIDENCE.THE MINIMUM NUMBER OF WITNESSES WAS
THREE.BUT BRIHASPATI GAVE NINE ,SEVEN,SIX,FIVE,FOUR,AND
EVEN TWO PROVIDED THEY ARE LEARNED BRAHAMANS.
HE WAS OF THE VIEW THAT A PLAINT WHICH IS OF
SMALLER VALUE SHOULD NOT BE ENTERTAINED
BY THE KING.THIS PRINCIPLEWAS EMBODIED IN
SECTION 95 OF THE IPC.
DOCUMENTS AS A PROOF HAD GREATER
IMPORTANCE IN LEGAL MATTERS .HE DIVIDED
DOCUMENTS INTO THREE GROUPS----ROYAL
WRITING,WRITING MADE A PATRICULAR PLACE AN
ONE WRITTEN IN OWN’S HAND.
A DOCUMENT WHICH HAS NEITHER BEEN SEEN
NOR READ OUR OF 30 YEARS LOSES ITS VALIDITY
ALTHOUGH THE SUBSCRIBING WITNESSES ARE
STILL ALIVE.
ORDEALS ARE GENERALLY RESORTED TO WHEN A DOUBT
AROSE WITH REGARD TO A DOCUMENT OR STATEMENT OF
WITNESS AND WHEN INFERENCE FAILED.
BRIHASPATI MADE A IMPORTANT LANDMARK IN THE HISTORY
OF HINDU LAW BY CLASSIFYING MANU’S 18 TITLES OF LAW
UNDER TWO HEADS CIVIL AND THE CRIMINAL .
UNDER CIVIL LAW WERE LISTED TITLES AS MONEYLENDING,DEPOSITS,INVALID GIFTS,CONCERNS OF
PARTNERSHIP,NON-PAYMENT OF WAGES,NONPERFORMANCE OF SERVICE,LAND DISPUTES,SALE WITHOUT
OWNERSHIP,RECISSION OF SALE AND PURCHASE ,BREACH
OF CONTRACT,RELATION BETWWEN HUSBAND AND
WIFE,THEFT AND INHERITANCE,GAMBLING ETC.
INSULT,VIOLENCE AND CRIMINAL CONNECTION WITH
ANOTHER’S WIFE WHICH SPRANG OUT OF INJURY TO
OTHERS CAME UNDER CRIMINAL LAW.
ACCORING TO HIM ,IT WAS NECESSARY FOR THE CREDITOR TO TAKE A VALID PLEDGE
BEFORE LENDING MONEY.
AS REGARDS TO LAW OF PARTITION AND INHERITANCE ,HE ALLOWS EQUAL SHARE TO
BOTH THE FATHER AND SONS IN THE PROPERTY OF THE GRANDFATHER,WHILE THE
SON CAN CLAIM THE SHRE IN THE PROPERTY OF HIS FATHER WITH HIS CONSENT ONLY.
HE IS FORTHRIGHT CONCERNING THE PENAL LAW. ACCODING TO HIM IF THE ABUSED
RETURNS THE ABUSE ,ONE WHO IS STRUCK RETURNS THE BLOW,AND ONE WHO IS
ATTACKED KILLS THE ASSAILANT,HE COMMITS NO OFFENCE.ONE WHO IS INJURES HAD
TO MEET THE EXPENSES OF CURING THE WOUNDS.
IN PRESCRIBING THE PUNISHMENT FOR THEFT OR VIOLENCE,HE IS CONCERNED MORE
WITH THE GRAVITY OF THE OFFENCE THAN WITH THE CASTE OF THE OFFENDER.
ACCORDING TO BRIHASPATI,A DECISION SHOULD NOT BE GIVEN MERELY RELYING ON
THE TEXT OF THE SHASTRAS.WHEN CONSIDERATION OF THE MATTER IS DIVORCED
FROM REASON AND COMMONSENSE,LOSS OF DHARMA RESULTS.A THIEF IS HELD TO
BE NOT A THIEF AND A GOODMAN IS HELD TO BE WICKED ONE IN A JUDICIAL
PROCEEDING NOT ARRIVED AT WITH PROPER REASONING.THE SAGE MANDAVYA WAS
HELD TO BE THIEF BECAUSE OF THE DECISION BEONG ARRIVED AT WITHOUT PROPER
REASONING.