Limitations of Judges Tenure

Dr. R. Nagaswamy

 

The author is a well-known archaeologist, epigraphist and art expert of South India, and has authored many scholarly works.

 

Recently some judges of the Madras High Court were transferred. This attracted the attention of the public: the transfers were effected, according to the authorities, to maintain the highest standards of the judiciary and improve its efficiency, but others questioned this stand and imputed motives. One of the judges even expressed disappointment over the transfers. In this connection, an ancient lithic (epigraphic) record dated over one thousand years ago, regarding limitation of service tenure of judges, would come as a revelation to those interested in the history of ancient Indian judiciary.

The record is dated 930 CE, in the reign of the Chola King Parantaka, and is found on a ceiling slab of the Bhaktavatsala temple of Thiruninravur near Chennai, Tamil Nadu. It is engraved in Tamil letters and relates to the constitution of Judiciary and the limitation of their service.

Before the inscription is studied, it is necessary to note that the Chola emperors aimed at superlative efficiency in all walks of public administration and did achieve splendid standards, which even modern administrators would envy. The famous Uttaramerur inscription, relating to the qualifications, disqualifications, and process of election to the village assembly is a well-known instance. Apart from the tenth-century inscription mentioned above, an eighth-century record from the Pandya country also gives a vivid picture of the constitution of judiciary in ancient times.

The judiciary was by and large in the hands of elected village elders, and only in exceptional cases went to the territorial assemblies or ultimately to the king’s council. The village courts served as the main backbone of the judicial system in ancient India. Called the Panchayat system in modern times, the village judiciary is mostly misunderstood as no more than the collective decision of the elders, without the application of any legal procedures known to present times. Most historians held that the legal-judicial system came to be introduced and learned only after the advent of European rule in India. The eight-century record from the Pandyan country, disproves this assumption emphatically. This record comes from Manur, in Tirunelveli district, and is virtually a written constitution of the village as regards the election of judges to the village court. The entire village assembly met and drafted the constitution for selecting judges.

The first qualification prescribed was that anyone to be elected as a judge should be a master of at least one legal treatise. (The legal treatises are known as dharma sastras and there were many schools of dharma sastras like Manu, Yajnavalkya, Brihaspati, Parasara and others.) The village courts were therefore presided over by legal experts and not by casual elders, as is commonly understood. There were strict legal procedures to be adopted before a case was taken to the village courts.

The Manur record also specifies that a candidate for election to the court should be one known for his sterling conduct (suvrittaray iruppar) and should be so accepted by the village assembly. Since this village was a Brahmin settlement, it further prescribed that the candidate should be a master of one Veda and one Brahmana text, and should have passed an examination to that effect. There are other aspects mentioned in the record with which we are not concerned here. Thus the above record stipulates virtuous conduct, a pass in the stipulated examination, and mastery of one law book as basic requirements for being elected to the court. This record does not, however, stipulate the duration for which he can serve or, if he has served once, the interval that was required before re-election.

This gap is filled up by the tenth-century Thiruninravur record mentioned earlier. It mainly addresses itself to the minimum duration for which the judge had to serve in the same court. The Thiruninravur record is also a written constitution of the village judiciary drafted by the whole village assembly, which met for the purpose in 930 CE. That the village judiciary and administrative committees were elected to serve for one term is clear.

Once the elected judges had served for one term, they could not be elected for another five years, not only as judges but also in other administrative committees. The restriction of five-year interval was reduced to two years in the case of relatives like fathers, brothers or sons of those who had served once. Thus a judge could not serve two terms consecutively in the same court within less than five years. His close relatives could not also aspire to become judges within two years of his service.

It is pertinent to recall the qualification stipulated for a judge of the village court; a pass in the prescribed examination, mastery of a legal text and above all noble conduct. The dharma sastras insist on the sanctity of judicial pronouncement, failing which the judge was liable for punishment and would also incur a sin and his emancipation was in danger. In spite of such strict standards, like fair judgements, good conduct, and high qualifications, his tenure was limited.

This indicates the high standards of the judicial administration in the Chola period in the tenth and eleventh centuries CE.

Whether this system could be applied in modern times is not our concern here, as the standards are different now. But it does focus attention on the history of ancient India’s judiciary, often labelled Panchayat system and brushed aside as a collective conventional decision, rather than based on a written constitution and a legal system. The ancient Indian Judiciary functioned only with solid legal procedures and a written constitution (called Lekhya Pramanam). In view of the importance of Thiruninravur constitution, an English rendering of the record is given below.

 
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This is the resolution adopted for the prosperity of our village, with effect from the month of Kumbha in the twenty-third year, by us the members of the great assembly, which include:

(1) the judicial assembly,

(2) the tank maintenance committee (eri variya perumakkal).

(3) the garden maintenance committee (totta variya perumakkal),

(4) the exponents of Sastras (bhattas) and

(5) the great men (visishta perumakkal)

and who assembled in full, inclusive of the young and the old, in the great hall of our village on this day:

When the judicial assembly and the (various) committees are to be constituted from this year onwards, the great assembly (mahasabha) should meet in full in the brahmasthana of our village, and select only those who are acceptable to the mahasabha. Those who are so selected should not have served in judicial capacity or in the (administrative) committees within five years, prior (to the date of selection). The brothers, fathers and sons of those who served (within) two years prior (to the date of selection), should be excluded.

One who is so selected, should not be demanded to do (other) obligatory services while serving in the mahasabha.

Those who demand other obligatory services from such selected persons, contrary to this resolution, are proclaimed offenders of the village.

They (the selected) will receive one kunri of gold per duration.

Those who complete their service in the judicial assembly and the (other) committees, should settle and hand over accounts to the assembly.

We the members of the great assembly resolved thus.

Those who act contrary to this resolution, should pay twenty five kalancu of gold as fine at the court (dharmasana) at the request of the shareholders of sravanai of our village.

This resolution (may be) inscribed on stone.

© Dr. R. Nagaswamy, 2002.

 
 
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