Ancient Practice Of Medical Jurisprudence In India

By; Dr.U.N.Prasad Prncipal S D M College Of Ayurveda Kuthpady-574118.Udupi Karnataka,India.

The origin of this science probably dates back that period when early man started living in communities. That means, it is from the date of early civilization. The word civilization tells us about two things1] Living comforts 2] Social security. The former led to various inventions and the later led to framing of regulations.

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During the early days, these regulations were very primitive and mostly confined to certain hamlets. But planets moved several thousand times around the Sun. kingdoms were developed and king became the ruler of the society. On the other hand people had the definite discrimination between do's and dont's. Concept of Dharma evolved and it became the basis of administration of law. Concept of responsibility is also embedded in Dharma. Technical meaning of responsibility is 'to discharge or not to discharge duties as the circumstances may be'- that means doing the work which one should do and not doing such acts which one should not do.

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In other words, Dharma is living according to the socially accepted norms and Adharma is behaving against to such norms. Aihika Dharma and Pararamarthika Dharma are worth mentioning here. Aihika Dharma refers to following the regulations of the society whereas Paramarthika Dharma refers to religious practices. The word Dharma has entered the lexicon of the English language. Oxford Dictionary has it as – - right behavior - the law - custom - decree.

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Since when people started living according to Dharma ?

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In some places in Rigveda it is mentioned 'Sanatana Dharmani’. Rigveda itself is the humankind's earliest literature. Even thinkers in the period of Rigveda was referring to sanatana dharma means living according to Dharma was more antique than Rigveda. As already referred, man started living in the communities, King was the ruler of the society and concept of Dharma had evolved, means, definitely a system of administration of justice came to existence.

Even during the period of Manu distinction between the civil litigation and criminal offense was clearly known. The cases were heard in the king's court. King was the rule-maker of the state along with the council of ministers. But king had no authority to amend the regulations of Dharma. He was not allowed to influence over the case.

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In Manusmruti the law court is called 'Sabha‘* The Sabha consisted of one chief justice, three juries, and, the king. There used to be a council called 'Vrudha' for the general supervision of the judiciary** The court used to decide the case according to the available evidences. Importance of evidence and importance of oath was clearly known.***

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* - Manusmruti ch 8 ** - Manusmruti-8/17 *** - Manusmruti-

8/109

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Reasons for narrating the falsehood by the witness are- fear, love and affection on the accused, anger, not knowing the details of the case and not properly understanding the questions*. Such witness was liable for punishment.

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* - Manusmruti- 8/118

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There was a provision for re-opening of an already heard case in doubtful circumstance if the accused has won the case in one court due to weak evidences, he can be tried in another court when evidences are available.* If the wrong judgment is given in a case, then the responsibility of that sin used to be on – 1.the accused, 2.the witness, 3.the council of juries, and, 4.the king ** *- Manusmruti-8/117

**- Manusmruti-8/18

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The king was also not free from the legal bondages. If the king impose penalty on an innocent, then, public can impose thirty times of the imposed penalty on the king.The primary duty of the Sabha was to preserve Dharma.

*- Kautilya Arthashastra-4-88-13

We find frequent mention of the words ‘Saahasa’ and ‘Dandapaarushya’ in Manusmruti and Arthashastra. Chanakya has dealt in detail about these. In Monier- Williams Sanskrit-English dictionary meanings of ‘Saahasa’ are- violence, force ,rape, robbery and adultery. One of the meaning of ‘Dandapaarushya’ is harsh punishment. For different types of offenses different punishments are suggested.

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The persons suffering from insanity were exempted from certain criminal responsibilities. For example, trespassing by an insane person was not considered as an offence.* An insane person was not given the heirship of the property as he cannot manage the property.**

* - Kautilya Arthashastra-4-88-13

** - Kautilya Arthashastra-3-69-5

Feigned insanity 

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If a person commits a crime and afterwards he himself says that the act was committed due to insanity or not knowing the consequences, he was made responsible for that act. Consent for sexual intercourse:Having sexual intercourse was prohibited as the consent given by her is not valid.*

* - Kautilya Arthashastra-3-69-5

Reference about criminal abortion is available in Kautilya Arthashastra.* If criminal abortion is induced by beating on the abdomen, it was attracting severe punishment, If it is induced by giving medicines, it was an offense of middle category, if induced by putting the woman into physical strain then it was a severe crime.

* - Kautilya Arthashastra-4-86-11

Killing another person by giving poisons was a principle crime attracting capital punishment.* Examination of food ,drinks and other substances contaminated with poision is explained in Ashtanga Hrudaya. Acharya Vagbhata has described the method of identifying the person responsible for criminal poisoning.

*- Kautilya Arthashastra-4-86-11

Girl aged above 12 years and boy aged above 16 years was considered as adults. If they violate the law after attining the majority, then they were responsible for their acts.*

* - Kautilya Arthashastra-3-2-59

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Sexual offenses are dealt in Arthashastra in the chapter Kanyaprakarma.* It was a severe offence to have the carnal knowledge with a girl before menarche. In the event of death of the victim in such circumstances, death penalty was imposed to the criminal. Rape :- Sexual intercourse against the will of the woman was prohibited. Forceful intercourse with a prostitute or daughter of a prostitute was seriously considered.** When many persons commit rape on a woman, then all are guilty.***

*-Kautilya Arthashastra-4-82-12 ** - Kautilya Arthashastra-4-88-13 *** - Kautilya Arthashastra-4-82-12

Vasishtha Dharmashastra proposes punishment to those who oppose restoration of victim of rape in the society. It is the duty of the society to restore the status of the victim of rape. Anybody who opposes the restoration of the status of rape victim in the society is as much a criminal as a rapist himself.*

* - Vasishtha Dharmashastra 28 verses 2&3

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It appears that even in the period of Chanakya false accusation of rape might have been reported. That is why he states that if any woman smears blood of other origin on her clothes for the purpose of bringing accusation upon a man, then she should be punished.*

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* - Kautilya Arthashastra-487-12

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If there are any accomplices in a case of sexual offense, then they are also equally responsible.*

* - Kautilya Arthashastra-4-87-12

Kidnapping a girl for the purpose of sexual intercourse was a severe crime.*

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* - Kautilya Arthashastra-4-82-12

Sexual perversions were prevailing in those days also. If any person practices sodomy or oral sex then he was responsible for that act and it was a punishable offense. Bestiality was also prohibited by law. There were incidences of committing sexual act on idols of Gods. It was an offense.*

* - Kautilya Arthashastra-4-88-13

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Sexual intercourse with blood relatives was prohibited. It was considered as punishable offense.* Rigveda prohibits marriage between blood relatives.(present law in India does not consider incest as an offense when both parties are above the age of consent and consent is given).

* - Kautilya Arthashastra-4-88-13

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We can find first references about the examination of the dead body in Arthashastra. Chanakya has devoted one full chapter for thisAshumruthaka pareekhsha.* The meaning of ashumrutaka means recent death of a person not due to disease, sudden death.

* Ashumruthaka pareekhsha-4-82-7

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Some of the descriptions he has given are — a) Examination is to be done by immersing the body in oil. b) If there is escape of urine and feces, abdomen is distended, swelling in the extremities, wide open eyes and marks on the throat, then death is due to throttling. c) Swelling in the extremities, protruded eye balls and elevated umbilicus suggests death due to hanging. d) Protruded eye balls and rectum, teeth-bite marks in the tongue and distension of the abdomen is in death due to drowning.

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e) Scattered injuries on the body suggests death due to falling from a height. f) Blackish discoloration in the extremities, teeth and nails, abnormal skin and hair and froth in the mouth suggests death due to poisoning. Along with these signs, a bleeding teeth bite mark is also present, then the death is from poisonous animal bite. g) A piece of heart is to be put into fire. If death is due to poisoning it burns with crackling sound emits smoke in rainbow colors. h) The above test can be conducted even in the half burnt body recovered from the pyre.

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i) In cases of death due to suspected poisoning, remaining food is to be tested in milk. some commentators opine that food in the stomach is to be tested. In Astanga Hridaya we find detail description of examination of food drinks and other articals contaminated with poison.*

*- A.H.S.7th Chapter

The duties and responsibilities of the physicians is not dealt in detail in the treatises written before Charaka Samhita. There are scattered references in Kautilya Arthashastra. Acharya Charaka explains codes of conducts of the physician. Therefore Charaka Samhita is the origin of Medical Ethics . 1) Qualities of a Physician:- Acharya Charaka has explined this in different contexts. Qualities of ideal physician and qualities of excellent physician are described.

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Qualities:- A physician should have good medical knowledge, extensive practical knowledge,Capability and purity. These are the four basic qualities of a physician.* He must be always engaged in the studies of medicine. He must be capable of practical application of his knowledge. Then only he is called ‘Pranabhisara vaidhya’ or savior of life.** An ‘excellent’ physician will have six qualitiesKnowledge, critical approach, Knowledge of allied sciences, good memory, commitment and promptness. *** * - Charaka Samhita Su 9/6 9/21

**- Charaka Su 9/18

*** - Charaka Su

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b) Quackery :- The quackery in the field of medical practice was condemned. Treatment given by a quack is like ‘blind man walking with his hands’ or ‘a boat being sailed by the wind’. Such a physician may cure some patients by chance, but all the patients under his care may not be lucky.

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* - Charaka Su 9/15-17

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c) Relationship with patients :- Physician should be sympathetic and kind to all patients. He must make all efforts to cure the curable diseases .* It is implied that whoever chooses this profession is of compassion for the people and not to earn wealth.** He has to treat all his patients as his children, he should take care of their health.***

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* - Charaka Su.9/26. 4/56

** - Charaka Chi.14/58.

*** - Charaka Chi.1-

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2) Notification :- It is very clearly mentioned in Arthashastra that in all circumstances of treating a serious patient, physicians first duty was to inform this to the kings administration. If he fails to do so and death of such patient occurs, physician was criminally responsible. If death of a patient occurs due to improper treatment, he was liable for punishment. If the improper treatment was leading to any physical deformity, he was responsible criminally.* Acharya Charaka advises the physicians to have the knowledge of curable and incurable conditions and also to start the treatment in time for curable diseases. If not it leads to loss of wealth, fame and he will be subjected to Royal sanctions and punishments.**

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* - Kautilya Arthashastra 4-76-1 ** - Charaka Su.10/7-8

A well defined system of administration of law was existed in ancient India. The judiciary was independent. Dharma was supreme and judiciary was based on Dharma. Dharma has the importance only when Adharma has the existence. By controlling Adharma security and peace in the society can be achieved. Law is required when there are illegal activities. The question is how much methodically and effectively the law was framed and administered.

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Recalling the aspects of this great heritage that belongs to all of us, not with a purpose to look back for the purpose of glory, but towards drawing lessons and guidelines with a view to the future. Dharma eva hato hanti dharmo rakshati rakshitah : Tasmat dharmo na hantavyo ma no dharmo hato avvadhit: 

- Manusmriti 8/15

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