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BOOK REVIEW Growth of Legal System in Indian Society by Indra Deva and Srirama; Allied Publishers Private Limited New Delhi, 1980, pp. viii + 217, Rs. 70. A few years ago the Indian Council of Social Science Re- search entrusted two well-known scholars in two different dis- ciplines with a research project on "Judicial Values and Insti- tutions in Indian Tradition." One of them, Dr. Indra Deva, is a Professor of Sociology and the other Dr. (Mrs.) Srirama Indradeva is a Sanskrit scholar. A conspicuous consequence of their continued collaboration is the production of the book under review titled Growth of Legal System in Indian Society. The title of the project appears to disclose the theme of the book better than the present title, as the book deals with juridical concepts and legal institutions in ancient India from the period of the Rigveda to that of the later smritis. Indian legal literature is not wanting in studies on law and legal procedure in ancient India. Apart from the classical studies by European scholars like Buhler, Jolly, Keith, Lingat Max, Muller and Winternitz and Indian Scholars like Jayaswal and Kane, there are also a few recent studies such as Sukla Das's Crime and Punishment in Ancient India (1977) and M. K. Sharma's Court Procedure in Ancient India (1978). Almost all of them tend to jumble together all the available material on a topic drawn from diverse textual sources belonging to different eras in the history of the evolution of Indian civilisa- tion. The result is that the patchwork that is produced does not give a coherent idea of the subject dealt with at any point of time. The present work legitimately claims to be different from all of them. As the authors put it: 1. Indra Deva and Srirama, Growth of Legal System in Indian So- ciety (hereinafter referred to as Indra Deva) 207-208. BOOK REVIEW 409 Our attempt in the present piece of research has been to try to draw the broad outlines of the social forces that lent distinctive characteristics to judicial values and insti- tutions at various phases of the genesis and growth of Indian civilisation. They point out, for instance, how the judicial system responded to the growing needs of commerce and industry, and developed a high degree of complexity and sophistication in the era of the later smritis. The first chapter of the book is devoted to a study of the broad patterns of social change and the conception of justice. After pointing out that ancient Indian law, unlike modern law, covers not only legal codes but also prescribes codes of ethics and religious practice, and that the customs and values of indi- genous peoples as also those of the invading hordes that came to India from time to time contributed greatly to the traditional legal system, 2 the authors proceed to state that the Dharma- suthrco-s closely followed the ancient vedic norms. 3 Referring to Buddhism which, though it had only an ephemeral existence as a dominant influence on social values and attitudes, they say that perhaps it caused the greatest social upheaval that occurred in Indin. 4 Soon however the smriti-s countered Buddhism by codifying the norms of the Brahmanical revivalist movement without discarding the law relating to commerce that was deve- loped during the Buddhist period. Intricate conventions and customary laws of various trading guilds and castes were incor- porated into an integrated legal system. 5 This process of inte- gration along with systematisation, and sophistication of legal principles and procedures, the authors point out, reached its zenith in the later smriti-s. 6 As much had happened since the early vedic times the smriti-s, though they claimed the authority Id., at 2 Id., at 8 Id., at 9 Id., at 11 Ibid. 410 COCHIN UNIVERSITY LAW REVIEW Riilt) of . the vedas for almost everything they had laid down, could not revive the ancient vedic society in its plenitude. However, composed as they were by Brahmanas, they served the interests of the Brahmanas well. The authors conclude the chapter with the observation that -the old vedic racial discrimination was hardened into caste hierarchy and is still at work when hardly any justifiable racial or cultural difference exists.' The second chapter deals with sources of law. There is a lengthy comprehensive list of source books ranging from the Rigveda (c. 1500 B.C.) to Vacaspati Misra's Vivadacinatamani (15th century) and Prataparudradeva's Sarasvativilasa (16th century). What is presented here is not a bald list; the name of a sutra, sniriti or commentary is followed by a short descrip- tion of its contents and discussion of its authorship and probable date of composition. The third chapter which dwells at some length on judicial Institutions and procedure is of great interest to us at the pre- sent time. It delineates the development of the judicial system from the very early days when sabha and samiti (which term, incidentally, is perhaps etymologically related to the English word committee) comprised the contemporary tribunals to the days when kulani, sreni, nuga and gana shared, though to a limited extent, judicial functions with sabha which decided all manner of disputes. There were also special tribunals entrusted with the duty of deciding disputes among certain categories of litigants like soldiers, traders and members of /various: other professional bodies. The chapter presents a detailed description of legal procedure before the sabha. What is perhaps most re- nlarkable about the procedure is that disputes were adjudicated not by a judge sitting in 'singular' splendour but by a panel of judges or a panel of judges and assessors. According to Manu, Yagnavalkya and Narada, a part from the chief judge there should be some sabhya-s or assessors in a court of justice. Brahaspati is of the view that the number of sabhya-s could be seven, five or three. Even though the King was considered the ultimate dispenser of justice on earth he was not to act single- 7. Id., at 15 BOOK REVIEW 411 handed. According to Yagnavalkya a King should enter the hall of justice in the company of learned Brahmanas and ex perienced ministers and decide disputes in accordance with the rules laid down in the Dharniasastra. Katyayana expressed an identical opinion when he said that the King should be assisted by other members of the court of justice. Baudhyayana and Vasistha were emphatic that the court justice should consist of ten members, preferably Brahmanas. If ten learned Brahmanas were not available, five or three or even one could constitute the court provided he was learned in sacred law.' This conces- sion to the constitution of a single-member court in the event of non-availability of a greater number of Brahmanas is accom- panied by a strong caveat from Baudhyayana that when a doubt arose a single learned person should not hand down a decision. This would be tantamount to saying that where there was no actual, undoubted dispute about an issue before the court be- cause of the facts or the point of law or both were clear, a single judge could hand down an opinion which undoubtedly, in the usual course, was subject to confirmation by the King or his representative. The judges had to reach a unanimous decision before pronouncing their verdict. Though a trial de 170V0 may be ordered in certain specified instances, as in the case of a person losing his claims through dishonesty of witnesses or judges, there does not appear to have been any provision for a multiplicity of appeals. Katyayana suggested that when a witness gave his testi- mony in the form of a narrative, it should be taken down with- out the King or the judge putting too many questions to him. This recommendation probably proves that Katyayana was not in favour of cross-examination or re-examination of witnesses as is the practice in present day judicial procedure. It may however be mentioned that the very appellation of the judge was pradvivak, one who puts questions, presumably with a view Kalidasa stresscd the principle of collegiality when he said, that even if a King was very learned he should not decide a dispute by himself because that was not fair (Malavikagnirnitra, I). Indradeva at 4, 210-211. 412 COCHIN UNIVERSITY LAW REVIEW to finding out the truth. It may be that he could ask questions of the parties to the dispute as well as the witnesses. In the next three chapters there is detailed discussion of three branches of law, namely law of inheritance, law of con- tract and criminal law. The details given of the law of inherit- ance and of criminal law are perhaps of only historical interest to us, as modern codes or statutes have virtually replaced the rules laid down in the early Sanskrit texts. No one is likely to be inclined Ito resuscitate the old rules as the present day ones are considered more progressive and humane and better suited to modern social conditions. When reforms are suggested in these fields it is done not by looking back to ancient days, but by looking forward to the future where one envisions a more pro- gressive society dedicated to the cause of greater freedom of choice, social justice and general well-being. As for the law of contract the picture may look at little different. The Indian Contract Act 1872 does not purport to be an exhaustive code. In spite of certain minor concessions accorded to Indian ways of thinking in the drafting of the enactment, there can be fur- ther refinements or modifications which would be considered essential to be made.

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