This work is not on history. I have not explained anything in the book keeping Indian history in mind. I have no intention to glorify the rich tradition of India. My aim was to study the relationship between medicine and law which has existed for centuries early in India. Once I had attended a seminar on Indian history and everyone attending that seminar was impressed by the deliberations of the experts. But I left the auditorium after sitting for some time thinking that if I sat any longer I would forget my date of birth. As there is a bit of history in this book, I took a long time to complete the work - in fact more than two years. I took leave for a couple of months, went to Atlanta, GA, USA, to complete the manuscript with the help of Mr Anil Kumar Katti and Mrs Divyashree Uchangi.
I am sure that after reading this book readers will appreciate the work. This book is not only for the students of forensic medicine, pharmacy or law, but also for those who have an interest in this subject. As far as possible technical terms are converted to simple language terms. I have tried to adhere to good manuscript practices but failed to limit some repetitions, particularly in Chapter 6 which deals with medical ethics. The intention is to give a clear picture about the descriptions available in different treatises.
Indian civilization was considered as the cradle of world civilization. Since time immemorial, Indians had in-depth knowledge in several sciences including medicine and jurisprudence. From several decades I was making an effort to understand the history of some concepts. For example, concept of sudden death. When was this concept developed in India and what was its importance in those days? Was this the same that we are studying today or different? If I quote another example, medical certificate, where is the first reference about medical certificate in ancient Indian literature? Is there any reference about the examination of the dead body for a certain specified purpose? This list may go on and ultimately one major question emerges: "Was there any relationship between the two different sciences-medicine and law?". Still more fundamental questions will also arise like "Was there any proper method for the administration of justice?" or "What about the structure and functions of law courts?"
One day when I was searching some related matter on the internet, I saw an article which had the title "Dharmo Rakshati Rakshitah". This article was based on the address by Dr Shankar Dayal Sharma, the then President of India, at the first convocation of the National Law School of India University, Bangalore, on 25th September, 1993. In that speech he stated that "The essential aspect of our ancient thought concerning law was the clear recognition of the supremacy of Dharma and the clear articulation of the status of Dharma, somewhat in terms of the modem concept of the Rule of Law, i.e. of all being sustained and regulated by it". This particular quote stimulated me to study the relationship between Dharma and legal regulations. After reading this book, the readers will definitely note that Dharma is not religion.
If I want to dig a sweet water well, I have to dig the well from the surface and go deep till I get the underground sweet water stream. I searched for details in Smriti literature. Indian Smriti literature is really a treasure where one can find details about the then prevailing judicial system and legal procedures. Particularly Arthashastra of Chanakya is a treatise which deals elaborately with some medicolegal aspects like examination of the cadaver (Ashumritaka Pareeksha). One cannot say that the details what we get in those treatises are complete. But we can clearly say the concepts were developed and those concepts were structured according to the need of those days. Advancement and developments are possible only when there are existing concepts.
Medical ethics is another aspect in which ancient scholars have surpassed even the modern-day thinking. Medical ethics was applicable not only for the professionals of medicine, but also for teachers and students of medicine. Medical ethics was also applicable to the manufacture of medicine. Acharya Charaka, in his very popular treatise Charaka Samhita, has explained medical ethics in detail. The ethics explained by him is in no way inferior to present days thinking. That is the reason why people consider Charaka Samhita as the origin of medical ethics.
I will be happy if my work is appreciated by the readers. I am very happy that CBS Publishers & Distributors Pvt. Ltd, New Delhi, have taken pain and joy both in this project.
Thinkers of ancient India had scaled great heights in the field of medicine. They had also advanced very far in the system of administration of justice. India had a very systematically developed medical system during the Samhita period, that is, about fifth century BCE. They had expertise in conducting complicated surgeries and treating medical emergencies including poisoning. During the same period important law codes were written. Civil and the criminal procedure codes were well defined. There were separate courts for civil litigations and criminal offences. Codes for consumer protection were neatly drawn which are in no way inferior to the present day concepts. The science of medicine and administration of justice had reached such a height that there should be some well-defined regulations to govern the medical profession, including medical practice and manufacture of medicine. Medical ethics is another important aspect in the practice of medicine, and what was its standard during ancient period is also an interesting study.
SOURCES OF CLASSICAL INDIAN LAW
Ancient jurisprudence of India essentially had its unshakable base in religion and philosophy. All the regulations of law and ethics are explained under a mighty word called Dharma. Dharma is a concept which was not meant to refer any religion or community. Social and moral conducts and right behaviour is included in Dharma. Consequences of the violation of Dharma are explained in ancient Indian law codes. It provides the guidelines for lawful functioning of the society. Concept of Dharma was evolved during the pre-Vedic era, the antiquity of which is unknown. In Rigveda the word Dharma is mentioned as Dharman. There are several meanings of Dharma. Some are "law", "decree", "something which is firm or well established", "sustainer" and "supporter". It is similar to the Greek word ethos which means fixed decree, statute, and law.
The philosophy of Dharma had developed fully during the period of Rigveda. This term denoted specific codes of conduct. This was delicately imposed upon the society to live according to the ethical, moral and legal regulations defined by the same society to which he or she belongs to, and also, to obey the regulations of the land. Therefore, the Vedic Indians had correctly considered theft, adultery, violence, etc. as violation of Dharma. All the thinkers during Samhita period considered Veda as the foremost source of ancient Indian law. Every Smriti considers Veda as the only authority of Indian law. Smritis are the second important source. The law explained in Veda was not sufficient for the society which was growing with complexity. Then there was a need for redacting the law which was concepted during pre-Vedic period and written during Vedic period. Dharmasutras and Smritis were written to explain the law in detail.
The Dharmasutras are treatises dealing with custom, rituals and law. There are only four serving texts. These are the written works of the ancient Indian thinking on Dharma, or the rules of behaviour recognized by the community. Unlike the later Dharmashastras, the Dharmasutras are composed in prose. The oldest Dharmasutra is Apastamba Dharmasutra, followed by the Dharmasutras of Gautama, Baudhayana and of Vasista. It is difficult to fix the exact dates for these compositions, but the dates between 600 and 100 BCE have been suggested for these Dharmasutras.
1. Aapastamba Dharmasutra (600-400 BCE): It is one of the best preserved treatises and contains 1364 sutras.
2. Gautama Dharmasutra (600-400 BCE): This belongs to the same period of Aapastamba. Regulations about Vyavahara (judicial procedures) and also about religious rituals are explained in this treatise.
3. Boudhayana Dharmasutra (500-100 BCE): Mostly it explains about judicial procedures and religious rituals.
4. Vasista Dharmasutra (300-100 BCE): Very much advanced and detailed description about law and judicial procedures are explained in this book. Vasista has explained law with more humanitarian considerations.
The Dharmasutras, being the basic guidebooks of Dharma, discuss extensively about
1. Duties and responsibilities of people at various stages of life, like Brahmacharya (studenthood), Grahastashrama (householdership), Vanaprasthashrama (retirement) and finally the Sanyasashrama (renunciation).
2. The rights and duties of the king and administration of justice.
3. Personal practices like the daily oblations, funeral rites, etc.
These are the books written after the period of Dharmasutras. The descriptions in Dharmashastras are more descriptive in its matter and scope. These are the detailed texts, written about the then prevalent judiciary system of ancient India. It is very much evident that the details about ethical practices, religious practices and law were gathered together, compiled into a text and was named after particular sage. These texts have been updated by various scholars with the addition of details. Dharmashastra is the term referring to all codes of ancient Indian criminal, civil and social law composed by various authors. The best known and most respected are Manu Smriti and Yajnavalkya Smriti. All the available Dharmashastras come under Smriti literature. Dharmashastras and the Arthashastras are the codes which provide guidelines for kings, ministers, judicial administrators and law enforcement agencies about their duties and responsibilities. In the later days, some of the authors wrote commentaries (Bhashya) on these Dharma- shastras. Some of the texts are fully available and some are partially available.
The work of the commentaries (Bhashya) and the digests (Nibhandhas) have given many significant contributions by adding new versus and explaining the meaning of versus which is difficult to understand. They also tried to clarify the differences of opinions and controversies present in the Dharmashastras. In short, these commentaries and digests help in understanding and interpreting the original work.
Contents of Dharmashastras
The contents of Dharmashastras are divided into 3 main headings. They are as follows.
Ethical practices (Aachara): It deals with the customs of "good practices". It explains the proper conduct which has to be followed by all citizens and at different stages of life such as brhmacharya, grihasta and vanaprastha. It also gives guidelines for the religious customs such as offerings, sacrifices and rituals.
Judicial procedures (Vyavahara): It basically explains the duties of the king, judges and administrators of the state. Legal procedures which include the functions of the judicial system along with the procedure of examination of witnesses, judicial sentences and the punishments given are dealt in detail.
Repentance (Praayashchita): It is a concept which explains the methods to be followed to show repentance of the sin or offences committed. It also explains the procedures and importance of observing the ethical codes.
Dharmashastras explain in detail about the application of oaths and ordeals. The aims of both oath and ordeals were to establish the truth and to find out who is guilty when an offence was committed. The only difference was that oath was administered in simple cases, whereas ordeals were used in more serious ones.
Manu has given importance to oath (Shapatha) as an important means of finding the truth. Oath had to be taken by the accused by swearing on his near relatives or on the image of the deity.
Ordeals are explained divine methods to identify the guilty. Methods of administering ordeals are described in the Dharmashastras. There are evidences of many ordeals like, the ordeal of balance (Tula), ordeal of fire (Agni), ordeal of poison (Visha) and ordeal of water (Salila).
For example, in an ordeal called the sacred libation, an idol of the God was washed with water and the accused was ordered to drink that-water. Within a few days of drinking this water, if any harm occurred to him, then the case was decided against the accused.
The book studies the relationship between medicine and law which has existed for centuries early in Indian. The Indian civilization was considered as the cradle of world civilization. Since times immemorial, Indian had in-depth knowledge in several sciences including medicine and jurisprudence. The book bring into play some concepts like sudden death, medical certificate, examination of the dead body for a certain specified purpose, the relationship between medicine and law courts, and dharma in the context of rule of law (note that dharma is not religion).
Study of Smriti literature leads to learning the detail of the then prevailing judicial system and legal procedures. Particularly, Arthashastra of Chanakya is a treatise which deals elaborately with some medicolegal aspects like examination of the cadaver (Ashumritaka Pareeksha): These concepts were developed and structured according to the needs of these days. Medical ethics, which surpassed even the modern-day thinking, was applicable not only for the professional of medicine, but also the teachers and student of medicine, including the manufacture of medicine.
This book makes an ideal reading for the students of Ayurveda, forensic medicine, clinical medicine and surgery, pharmacy, law and ancient Indian history.
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