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Vyavahāra (Sanskrit: व्यवहार) is an important concept of Hindu law denoting legal procedure. Kane defines it as follows: "When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech, etc.) have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as debt), is said to be vyavahāra."[1] According to Donald Davis, “There are two basic meanings of vyavahāra. The first is a general sense of practice, business, or everyday transactions. The other, specific sense is legal procedure, the processes of litigation including a trial.”[2] Legal procedure according to the dharmaśāstras includes: court, listening to and assessing witnesses and their testimony, deciding and enforcing punishment, and the pursuit of Justice in the face of Injustice. Davis later quotes the Nārada-Smṛti in an attempt to answer the question why legal procedure came about in the Hindu tradition. The text states, “When men had dharma as their only focus and were speakers of the truth, there was no legal procedure, no enmity, and no (selfish) conflict. Legal procedure came into being when dharma was lost among men. The overseer of legal procedures is the ruler; he bears the rod of punishment.” [3]
Thus we can turn to the King or Kṣatriya, with whom the responsibility of overseeing legal procedure and then enforcing their results lies. For the King, vyavahāra is part of his personal caste dharma. In the section on laws for the king, the Manu-Smṛti states, “Arranging in this manner for the discharge of all his obligations, he should protect these subjects with care and vigilance. When bandits abduct from his realm subjects screaming for help, while he and men in his service stand by—he is surely dead, he is not alive. For a Kṣatriya, the protection of his subjects is the highest Law; the enjoyment of the specified rewards binds the king to this Law.”[4] The king’s personal dharma is inextricably linked to legal proceedings and his dharma is determined the by the merits and demerits of his subjects, therefore it is crucial he bring about justice to injustice. This is why it is stressed in the dharmaśāstras how important it is for the king to be fair and righteous and to appoint learned Brahmins to counsel and help him in legal matters.
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"A vyavahārapada means 'the topic or subject matter of litigation or dispute."[5] Manu divided the vyavahārapadas into eighteen title of law. Manu, "as conscious of the fact that the enumeration of the 18 vyavahārapadas was a matter of a convenient arrangement and that the number 18 did not embrace all disputes whatever but only the largest number of disputes and the most important among them."[6]
According to the Smṛti of Bṛhaspati there are four different kinds of courts of justice. They are, “one established (pratiṣṭhitā) in a fixed place such as a town, apratiṣṭhitā (not fixed in one place, but moving from place to place as on a circuit), mudritā (the court of a judge appointed by the king, who is authorized to uses the royal seal), śāsitā (the court in which the king himself presides).” [7] It further states, “The court-house should be decorated with flowers, statues, paintings, idols of gods and should be furnished with incense, throne or seat (for the king or judge), seeds, fires and water.[8] There is also differentiation among the different grades of courts. The king’s courts are the highest grade, “but other tribunals were recognized in the smṛtis and digests.[9] The Nārada-Smṛti and the Yajnavalkyasmrti state, “that law-suits may be decided by village councils (kulani), corporations (sreni), assemblies (gana/puga), the judges appointed by the king and the king himself, each late one being superior to each preceding one.”[10] It appears there were no court fees in ancient India, except for fines imposed by the king and texts such as the Viṣṇudharmasūtra, Nārada-Smṛti, Yājñavalkyasmṛti, and Kauṭilya’s Arthaśāstra ascribe rules for payment after a suit was decided.[11]
The Smṛti of Kātyāyana states that, “ The chief judge and the sabhyas were not to hold conversation in private with any one of the litigants while the suit was pending and if they did so they were liable to be fined.” .[12] If a decision is given that is against the smṛti and usage, through friendship, greed or fear, each was liable to be fined twice as much as the fine to be paid by the defeated party.[13] Kane states, “it was believed that when a just decision was given, the king and his sabhyas became free from sin, the sin only reaches him when he is guilty (whether plaintiff or defendant); but where an unjust decision is rendered a quarter of the sin falls on the litigant (plaintiff or defendant) who is guilty of adharma, one quarter each on the witnesses, the sabhyas and the kings.[14]
Occasionally, the realms of ācāra and vyavahāra overlap, such as in the case of the administration of temples. The king is involved in some areas of temple administration. It is part of his duty to punish those interfere with or ruin the property of the temples. This even includes the trees that are on or near holy ground, with a fine of 40 units for cutting off a twig. The king would appoint a devatādhyakṣa, an officer who superintends the temples. In an emergency, this superintendent would gather the wealth of the temples and place it at the disposal of the king, who would presumably repay it. It is also ordained that the king should not deprive temples of their properties. Other details pertaining to the administration of temples deal with the institutions in charge of running the temples, and therefore fall more into the realm of ācāra.[15]