(Hindū Dharmaśāstra-s, 4th part (part 1st, part 2nd, , part 3rd) of a long article being published in series here. This scholarly paper on Classical Hindu Law is written by Vidit Singh Chauhan, a practising lawyer in Supreme Court of India and Delhi High Court.)
TABLE OF CONTENTS
- INTRODUCTION
- DETAILED INTRODUCTION
- THE CONCEPT OF DHARMA
- SOURCES OF LAW
- ADJECTIVE LAW
- CONSTITUTION OF THE COURTS
- VYAVAHARA (DISPUTE)
- INSTITUTION OF ACTION
- PRAMANA (PRINCIPLES OF PROOF)
- LAW OF PROPERTY AND CONTRACT
- POSSESSION, OWNERSHIP AND PRESCRIPTION
- BOUNDARY DISPUTES
- INTERESTS
- DEBTS, PLEDGES AND SECURITIES
- DEPOSITS AND TREASURE TROVE
- WAGES, HIRE AND COMPENSATION
- LAW OF COMMERCE AND COMPANIES
- CRIME, PENANCE AND PUNISHMENT
- RELIGIOUS TRANSGRESSIONS
- THE PRAYASCHITTA (PENANCE)
- SECULAR CRIMES
- PROPERTY CRIMES
- OTHER CRIMES
- PUNISHMENTS
- BLOOD MONEY
- FAMILY LAW
- FORMS OF MARRIAGE
- SONSHIP AND ADOPTION
- THE JOINT FAMILY
- PARTITION
- CONCLUSION
- BIBLIOGRAPHY
LIST OF ABBREVIATIONS
| ApDh | … | Apastamba Dharmasutra |
| ApGr | … | Apastamba Grihyasutra |
| Arth. | … | Kautilya’s Arthashastra |
| AsGr | … | Ashvaalayana Grihyasutra |
| AV | … | Atharvaveda Samhita |
| BaudhDh | … | Baudhayana Dharmasutra |
| BrSm | … | Brihaspati Smriti |
| Ch.Up | … | Chhandogya Upanishad |
| GauDh | … | Gautama Dharmasutra |
| Kane | … | History of Dharmashastra, by P.V. Kane |
| KatSm | … | Katyayana Smriti |
| MahBh | … | Mahabharata |
| ManuSm | … | Manu Smriti |
| Medh | … | Medhatithi |
| Mit | … | Mitakshara, commentary on the the Yagnavalkya Smriti |
| NarSm | … | Narada Smriti |
| Panini | … | Ashtadhyayi of Panini |
| RV | … | Rigveda Samhita |
| SB | … | Shatapatah Brahmana |
| SmCh | … | Smriti Chandrika |
| TS | … | Taittiriya Samhita |
| TU | … | Taittiriya Upanishad |
| VaDh | … | Vasishtha Dharmasutra |
| ViSm | … | Vishnu Smriti |
| YagSm | … | Yagnavalkya Smriti |
| YV | … | Yajurveda |
CRIME, PENANCE AND PUNISHMENT
4.1 RELIGIOUS TRANSGRESSIONS
The expressions for the general concept of ‘crime, transgression’ are very numerous, but are mostly of a religious nature; by way of example, some may be mentioned here: aagas, enas, paapa, paapman, ashubha, kalmasha, mala, adharma, dosha, aparaadha, apakaara, atikrama, unmaarga, apachaara, dushkrita, vikarman, vikrit, pataneeya, samkarikarana, paataka, atipaataka, mahapaataka, anupaataka.
The systematic lists of sins in the Smritis are arranged according as re-acceptance into the caste may be secured easily, with difficulty, or not at all, on the performance of certain penances; of these lists that of Vishnusmriti[256] is the most exhaustive and may be provided below:
(1) Sins punished by death (atipaataka), namely sexual intercourse with mother, daughter or daughter-in-law;
(2) Great sins (mahapaataka), namely murder of a Brahman, indulging in spirituous liquors (suraa), theft of gold belonging to a Brahman, sexual intercourse with the wife of the teacher, association with those who have committed any of these crimes;
(3) Sins which are equal to great sins (anupaataka), and indeed equal to the murder of a Brahman: the murder of a Kshatriya or a Vaishya actually engaged in a sacrifice, of a woman in her courses or of a woman who has not bathed after temporary uncleanness or of a pregnant woman or of an embryo of unknown sex or of one who begs for protection; sins equal to the drinking of spirituous liquors are: giving false witness and murder of a friend; sins equal to theft of gold are: usurpation of land belonging to a Brahman and the embezzlement of an entrusted property; sins equal to the sexual intercourse with the wife of a teacher are: intercourse with the wife of the father’s brother, of a maternal grandfather of a father-in-law, of a king, and other incests;
(4) Lesser crimes (upapaataka) are hypocritical bragging, denunciation before the king, false accusations against a teacher, to revile or forget the Veda, abandoning parents, son, wife or the sacred fire intentionally, indulging in forbidden food and drink, usurpation of property belonging to others, adultery, sacrifice for low people, improper occupation, receiving unlawful presents, killing a Kshatriya, Vaishya, Shudra or a cow, selling forbidden articles, marriage of the younger brother before that of the elder, every kind of abetting to these transgressions, the mode of life of an outcast (vraatya) teaching and studying the Veda for a reward, work in the mines, manufacturing big machines, injuring trees or plants; earning livelihood by means of the wife, magi, violent actions, neglect of sacrifices, Vedic studies and other religious duties, reading bad books, atheism, the profession of a dancer or a singer, intercourse with women who take spirituous drinks;
(5) Crimes which entail excommunication out of the caste, namely inuring a Brahman, smelling of disgusting things and spirituous liquors, dishonesty, sexual intercourse with beasts or men;
(6) Crimes which degrade the perpetrator to a mixed caste, namely, injuring household or wild animals;
(7) Crimes which render the perpetrator unfit to accept presents, naely accepting presents or alms from contemptible persons, trade, money lending, mendacity and serving a Shudra;
(8) crimes which entail defilement: killing birds, amphibious animals, aquatic animals, worms or insects and to partake of subtances which came in contact with spirituous liquors;
(9) miscellaneous crimes namely all that has not been specifically mentioned.
The last expression above suggests that this list does not claim to be exhaustive and in fact still many crimes may be collected from the parallel passages of other ancient authors, as for instance, sea voyage, medical practice, murder of husband, regicide and other important cases of murder, intentionally abandoning nearest relations, cases of theft, etc.
Further sins of commission and omission are seen particularly in the rules about penances. , in the teachings about retaliation (karmavipaaka) in which particularly the various forms of theft are discussed with lively symbolism.
Many crimes in these lists appear to be disconcerting and about some of the expressions used therein even the commentators are of divided opinion. Thus, the crime of earning livelihood by means of the wife[257] is interpreted not only by the prostitution of the wife but also by the appropriation of her earnings or her own property or by the sale of the wife. On the whole there is no part of the Brahmanical codes of law whose roots reach so far into antiquity and which with all its peculiarities has maintained itself tenaciously up to the present day as the theory of crimes and the penances for those sins.
The Suryaabhyudita, Bhrunahan, Didhishupati, Agredidhishu and other categories of sinners may be traced back even to the Vedic Samhitas.[258] The Taittariya Brahmana contains an enumeration of sinners which agrees almost literally with Apastamba.
4.2 THE PRAYASCHITTA (PENANCES)
As old as the lists of sins is the theory of penances (Prayaschitta) the determination and prescription of which was one of the most essential means of maintaining the influence of the Brahmans and frequently was also a lucrative source of income for them. The Saamavidhaanabrahmana seems to contain the oldest detailed exposition of the penances. On account of its connection with the Samaveda, it mentions particularly many Saaman(s) the chanting of which is said to produce the effect of a penance; in 1.3 however, it also mentions the three penances (krichhra).
The Krichhra in the narrow sense consists of taking unspiced food during the first three days only in the morning, during the next three days only in the evening, for further three days eating only that food which may be obtained without asking for it and fasting during the last three days. The Atikricchra is an intensified form of this penance in which one may eat only as much at each meal as the mouth can hold at a time; the Kricchraatikricchra however is to be regarded as the most difficult of penances in which one has to live only on water.
The other Krichhra(s) are: the hot penance in which during three periods of three days each one has to live on hot water, hot milk and hot clarified butter respectively and to fast completely for the last three days, the cold penance in which the same fluids are to be taken in cold state, the penance of roots, the quarter penance etc. The lunar oenance of the Smritis should be specially mentioned with its varieities Yati, Shishu, and Saamaanyachandraayana—so called because the quantity of food taken is increased or decreased according as the moon waxes or wanes. The Paraaka penance consists of a complete fast for twelve days.[259] In the Saamtapana penance which, in an intensified form is called Mahaasaamtapana, one may take cow’s urine, cowdung, milk, sour milk, butter and a broth of Kusha grass in one day and must fast on the second day.[260]
The five things of the cow (panchagacvya) mentioned in this penance appear also in other penances, and thus almost everything what comes from the holy cow, even when in itself is extremely impure, may be used as an instrument of purification and expiation. In the Govrata,[261] the penance for killing a cow, the sinner should accompany the cows to the meadow and server them in every way, inhale the dust raised by their hoofs, bring them into safety in case of inclement weather and danger even at the risk of his own life and live on nothing but the Panchagavya. Even if one scratches the back of a cow and lets himself be wetted by the drops of water falling from the horns of a cow, one may derive thereby an expiating effect.[262]
The prayers play even a more important role than the cultus of cow in the penances. Among them the Saaman(s) are the most important and their power of effecting penances is already referred to in the Saamav. The most important prayers have particular names. The more a man repeats them the greater is the effect attained by him; thus according to Baudhayana Dharmasutra,[263] he who murmurs the Gaayatri 1008 times at sunrise may get absolution from all sins excepting the murder of a Brahman.
Another mode of atonement with which the authors of the Smritis are naturally in full sympathy consists of presents given to Brahmans. Baudhayana Dharmasutra mentions as fitting substances of present gold, cows, dresses, land, sesamum, clarified butter and food stuff;[264] Gautama[265] mentions moreover the horse; in the case of particular sins however many more present are mentioned which have to be given for their expiation. Thus in connection with the penance for killing beasts it is laid down that for killing a snake an iron spade should be given, for a boar a pot of clarified butter, for a partridge one drona of sesamum, for a parrot a two year old calf, for a peacock and other birds or for an ape a cow, for a horse a garment, for an elephant 5 black bulls, for an ass a one year old calf, for a camel one krishnala of gold, for a beast of prey a milch cow and for stealing gold belonging to a Brahman one’s own weight of gold should have to be given.[266]
The penances for secret crimes (rahasyaprayaschitta) form a particular category; according to Mitakshara on Yagnavalkya Smriti,[267] a sinner who is well acquainted with the Dharmasutras should impose on himself these penances which mostly consist of prayers; an ignorant man on the other hand should approach one who knows these things and enquire about the proper penance under the pretext that somebody else has committed the crime.
The graver the sins the more difficult are the penances; for this reason a deadly sin may be expiated for only by suicide. According to the Mahabharata,[268] the murderer of a learned Brahman shall plunge into the turmoil of a battle in order to obtain absolution from sin through death at the hand of the enemy, or shall throw himself into fire.
He who takes intoxicating drink will be pure if he drinks hot water until he is scalded to death. He who has defiled the conjugal bed of his teacher shall embrace the iron image of a woman glowing with heat till he dies of it or cut off his organs and the testicles and holding these limbs in hands he should walk till he falls dead on the ground or he should sacrifice his life in defending a Brahman from the danger of life.[269]
Excommunication out of the caste :-
Nobody can escape the performance of the prescribed penances if he does not wish to run the risk of being excommunicated out of the caste. The ceremonies of excommunication (tyaaga), the outward sign of which is to overturn or break the water vessels and the victim of which becomes fallen (patita) and thereby forfeits all his rights, are according to the Manusmriti[270] and the parallel passages and commentaries somewhat as follows.
If anybody has committed a great sin (mahapaataka) and is therefore accused by his Guru, his relations or the king, he is, if he confesses his crime, ordered to approach an Aacharya who prescribes him the proper penance. If he does not comply witth this and refuses to perform the penance inflicted on him, the ceremony of overturning water pots takes place. His relations and his spiritual initiator hold a meeting on an inauspicious day, in which, just as if he were dead, they perform for him all the funeral ceremonies beginning with the offering of water. Upon this a slave or a servant or a kinsman of low lineage brings a broken pot from a heap of sweepings or an impure dish, fills it with water out of the water pot of a female slave and upsets it with his left foot; on this the relations of the person who is going to be excommunicated touch it after loosening their hair; the female slave or even the relations themselves may upset the pot. In this act, the name of the person who is going to be excommunicated is proclaimed and it is said that the offering is meant for him and that he is going to be deprived of water for all time to come.[271]
When leaving the place the relaions, in token of their contempt for the excommunicated person, turn their left side to him and then go home after taking a bath. Henceforth it is forbidden to speak to the excommunicated person, to sit by him, or in any way to come into intercourse with him; he who speaks to him has to perform penance and he who continues to be intercourse with him for a year shall himself be an outcast.
The Patita is excluded from all religious ceremonies and business of his caste, he is even disinherited and if he is the eldest son he loses his right of primogeniture as well as the privileges connected with it. After his death he goes to hell;[272] moreover no funeral sacrifice is performed for him but instead of the offering to the dead and a female slave upsets a pot of water on the day of his death with words ‘’drink this’’.[273] Excommunicated women are treated in the same way; yet however she should be allowed sustenance and a place of abode should be assigned to her in the neighbourhood of the family house.[274]
Re-acceptance of the excommunicated person into his caste may take place on the resolution of his caste people in case he has performed the prescribed penance. The ceremonies which take place are just the antithesis of the ceremonies of excommunication.[275]
Relations between spiritual and worldly punishments :-
Is the secular criminal law later than the law of spiritual punishment and has the former been evolved out of the latter? It seems that on the whole, the two systems of punishment had developed independently of each other. Even though the theory of religious expiation had been codified as an important feature of the Dharma at an earlier period than the theory of punishment yet however the power of punishment has always been an essential attribute of royalty. Nothnig stood in the way to prevent welding together of spiritual and worldly punishments and the punished criminal moreover performed also the penacnes prescribed in the Dharmasutra(s) in order to gain re-admission into his caste
In all the Smritis an elaborate admixture of spiritual and worldly punishments is in evidence. Thus according to Manusmriti,[276] criminals of every class may escape the branding by the order of the king and pay only a fine if they perform the prescribed penance. On the other hand, it is said that ‘the criminals who have received their punishments from the king are purged of guilt and go to heaven like holy men’;[277] for this reason the thief who goes to the king with a club, confesses his crime and asks the king to strike him down to the ground is purified all the same whether the king acts according to this or grants him forgiveness; though of course the sin of the thief in the latter case is transferred to the king.[278]
According to Narada,[279] in the case of the Saahasa(s) of the first and the second grades the criminal may again be received into his caste; but he who has committed the Saahasa of the highest grade shall forever be excommunicated from his caste. There is mentioned among Prayaschitta a penance for adultery in which the woman is torn to pieces by a dog and the man is roasted on a bed of glowing iron. Usually this punishment is referred to in the criminal law.[280] Also the branding of the great sinners (mahapaatakin), e.g. the murder of a Brahman with the brand of a headless man, is always met with among the punishments inflicted by the king.[281]
There are many more instances of exchange and analogies between these two systems of punishment. Thus in both of these systems the caste-distinction and the privileges of the Brahman have been fully recognised which stand out prominently and particularly in the punishments and penances for murder, maiming, adultery, theft, injuries and other grave crimes. Further in the penances as well as in the punishments the existence or absenece of criminal intention is taken into consideration. Yagnavalkya[282] even expreses the view that penances are proper for sins committed unintentionally (kaamatah), and it corresponds to the religious belief that for the existence of a sin which has to expiated for only the actual facts of the case and not the evil design come into consideration.
Yet often Prayaschitta(s) are prescribed for the expiation of intentionally committed crimes. This according to Manusmriti,[283] orayers are to be resorted to in the case of unintentional crimes and the Prayaschitta(s) in the case of intentionally commited crimes. The general rule is that the penances for unintentional crimes are doubled when there is evil intention in evidence.[284] According to the Viswamitra, the intentional killing of a cow is to be expiated for by 4 Krichhras and unintentional killing by 2 Kricchras.
The same is also the case with the conception of permissible self-defence. For killing an assailant (aatataayin), even if he is learned in the Veda, neither punishments nor enances are prescribed; the fury of the assailant in such a case meets the fury of the defender.[285]
The participation in a crime is judged likewise from the same point of view both in the religious law and in the secular law. Thus who eats or serves, cooks and sells the flesh of a killed animal commits as great a in as he who himself has killed it or has cut it into pieces.[286] The Mitakshara, commenting on Yagnavakya,[287] in the theory of penances, quotes a text, said to be of Manu, according to which among a troop of men carrying weapons not only he who give the mortal blow should be considered to be the murderer but his companions too are guilty as he himself. Similarly Apastamba[288] speaks of the rewards of heaven and the tortures of hell which are shared by the instigator (prayojayitr), helper (mantr) and the perpetrator (kartr) of an evil deed.
Also, the repetition of a crime has been taken into consideration the same way both in punishments and in penances. Thhus according to Apastamba 2.27.11 in the case of repeated adultery the penance for the adulterer is more and more intensified. Similarly, Manu in criminal law affirms that the cut-purse whne caught for the first time shall have two fingers cut off, the second time a hand and a foot and the third time will lose his life[289] and Vishnusmriti declares that the king should not let a twice repeated crime go unpunished. In theft the penances as well as the punishments are graded according to the value of the stolen property. Thus also for penances in general it is said that in cases of crimes not specially provided for in law the penance is to be fixed on consideration of Desha, Bala, Vayah, Shakti and Paapa.
4.3 SECULAR CRIMES
The secular crimes and transgressions, i.e., those that are punished by the king, are also dealt with along with the corresponding punihments in the Dharmashastras in the chapter on the duties of kings without any trace of systematic arrangement. In Manusmriti, the criminal law, divided into real and verbal injuries, theft, violence and sexual crimes, constitutes the contents of 11-15 of its 18 titles of law.
In Naradasmriti, the laws about punishments, dealt with in 14-16, titles of law, consist of violence or grave crimes (saahasa), real and verbal injuries, and these 3 titles are subdivided into 15 sections; moreover in Naradasmriti the 12 and the 18 titles contain things connected with criminal law—their titles being “duties of man and wife” and “miscellany—as well as an appendix deals with theft and robbery and the destruction of evil doers (kantakashodhana). Also a quotation from Narada enumerates the ten chief crimes (dashaparadha) as follows: violation of a royal command, murder of a woman, mixing of castes, adultery, theft, pregnancy as the result of criminal intercourse, verbal injury, gorss abuse, real injury and abortion of the embryo. But only Brihaspati[290]expressly makes distinction between civil and criminal cases (dhanodbhavaani and himsodbhavaani); according to Brihaspati the latter consist of real and verbal injuries, violence and adultery and each of these four crimes is again divided into three grades.
According to Katyayana the king should himself investigate and give judgment over the 10 chief crimes (dashaparaadha) as well as the chalaani and the padaani nripateh even though nobody complains to him about them. More serious are the 22 padaani nripateh in which likewise the king should directly interefere, namely
(1) killing (an animal);
(2) destruction of corn;
(3) arson;
(4) defloration of a maiden;
(5) misappropriation of a deposit or treasure;
(6) breaking a dike or
(7) a hedge of thorn;
(8) to let the cattle graze on other people’s field;
(9) to cut down the trees of a forest;
(10) intrigue against the king;
(11) to break the royal seal;
(12) to break the royal seal;
(13) to cross king’s plans;
(14) liberating a prisoner;
(15) embezzlement of a tax, fine, present or a sold property;
(16) to render the sound of the drum inaudible;
(17) embezzlement of unclaimed property confiscated by the king;
(18) to hinder the mutilation of a criminal ordered by the king
4.4 PROPERTY CRIMES
Many points indicate that crimes against property were investigated at a very early period and that very energetically. Thus in Rigveda,[291] there is perhaps already a reference to an act of stealing cattle and to a class of spies. At all events such spies, experienced in tracking the marks of feet or hoofs, were known to the authors of the Smritis. When cattle and other properties are lost they are to trace the track up to its starting point; the inhabitants, the headmen or the proprietors of the village or meadow concerned have to make the required compensation excepting when the can prove that the track goes further out of that place.[292]
If the thieves cannot be caught the king is personally liable to make good the loss;[293] the king however may charge the loss from his officers and the guards of thieves[294] in whose jurisdiction the robbery took place. The tragic figure of the penitent thief who with flying hair—the sign of his submission—goes to the king with a club on his shoulder and confesses to him his crime and asks him to strike him dead[295] certainly belongs to the most ancient part of the penal law; this appears to be personal dispensation of justice thinkable only in the case of petty chiefs of small tribes.
Another noticeable point is that in the rules about evidence[296] and punishment, theft appears to be the typical crime. “Like a thief” is to be punished, for instance, he who binds freely roaming cattle or sets free cattle that are bound fast,[297] he who drives the cattle to other people’s fields,[298] he who uses other people’s property without obtaining permission for it, he who misappropriates a treasure trove, he who kills a man through carelessness, etc. For this reason various sorts of crimes have been put in the category of theft. Cheats of every kind, particularly galsifiers of wares, measures, weights or coins, soothsayers, people living on bribe or extortion, quacks, jugglers, treacherous arbitrators, false witnesses—they are considered as “word thieves”[299]—unjust judges, gamblers etc. are “open thieves” or robbers.[300]
Opinions are however divided as to whether gambling is permissible or is it to be condemned. Manusmriti, Gautama Dharmasutra and Baudhayana Dharmasutra strongly emphasise the sinful character of gambling,[301] while on the other hand, Apastamba Dharmasutra regards gambling to be a lawful amusement of the higher castes, whereas Naradasmriti and Yagnavalkya Smriti raise only the demand that the king should receive his share and that there should be no foul play. Even in the Veda gambling is frequently mentioned.[302] Thieves proper, burglars, highwaymen, cut-purses etc. are considered to be “secret thieves”.[303]
The detection of theft and cheating and keeping watch over the thieves is one of the most important duties of princes according to the Smritis. Thieves are to be looked for specially in the gambling houses[304] and also in public houses and houses of evil reputation, shops, forests, festive gatherings etc. The king, through spies and agents provocateurs, should keep watch over them and cause them to practice their profession in order to bring them into his power.[305]
Even a mere suspicion, e.g. if anybody expends very large sums of money or is in intercourse with criminals, or if he drinks or gambles or goes about in disguise or under false names, makes enquiries about houses of other people, sells articles that have been lost, lives in a house of doubtful reputation or is known as a criminal by nature or if he behaves in an unusual manner at the court etc., is sufficient to get a man under arrest and he must prove his innocence by means of human or superhuman witnesses to escape being punished as a thief.[306] The possession of a stolen property (loptra, hodha) or a foot mark is regarded as sure proof of guilt.
The punishments for theft are very heavy. In all cases of serious crimes the accused is sentenced to death : he is impaled, hanged or drowned and often his hands are hacked off and other tortures are inflicted for the purpose of aggravating the punishment. The same punishments are ordained also in the case of burglary, frequently repeated instances of pockets, robbery, stealing cows, horses or elephants or more than 10 Kumbhas of grains, more than 100 Palas of precious metals, particularly valuable jewels or stuffs etc.[307].
Forging of royal grants and even of private documents is punished by death;[308] the king should have a dishonest goldsmith cut to pieces, i, e., according to the commentaries, those who use false weights, touch-stones, alloys and practise other kinds of fraud.[309] In determining the magnitude of the punishment according to the value of the stolen property often three grades are distinguished. Thus Yagnavalkya[310] speaks about the theft of small, middling or large properties and similarly speak Narada.[311]
Enumerations of objects of about equal value are generally given along with data about the punishments for misappropriating the same, which, besides the already mentioned cases of capital punishment, consist of the hacking off of a hand or afoot and other kinds of mutilation and fines in most cases amounting to many times the value of the stolen property. No distinction is made between robbery and theft as regards punishment and taking part in these crimes, abetting of every kind or refusing to render help is regarded as equally criminal.[312] The caste of the thief and the person whose property has been stolen likewise come into consideration in determining the punishment.
Thus, the Brahman remains unpunished if he takes away the property of his Shudra slave[313] or if, when on journey, he takes two stalks of sugarcane and two eatable roots out of a field[314] on the other hand stealing gold which belongs to a Brahman is punished by death. However, on the other hand, the responsibility and culpability for an act of theft is heavier as the thief is of higher position and intelligence.[315] For cheating mostly fines are prescribed varying according to the amount of the damage done.[316]
Impaling as the punishment for theft is found also in literature, as in Mahabharata 1.63.92. The gradation of the punishment according to the value of the stolen property and the three grades of culpability was known also to Alberuni; he says that in the case of the theft of particularly valuable properties culprits of the Brahman caste are blinded and a hand and a foot are hacked off by way of punishment, Kshatriyas are mutilated without being blinded and the culprits of lower castes are punished by death.
4.5 OTHER CRIMES
Besides theft and robbery, murder, manslaughter, arson, high treason, real and verbal injuries, rape, adultery and other sexual crimes are included among the chief offences. Often the capital offences, in so far as they are connected with violence, are called by the consummate title “act of violence” (saahasa) which is the secular counterpart of the mortal sins (mahapataka) of the spiritual law.
Thus, according to Narada[317] there are four kinds of Saahasa, namely man-slaughter, robbery, rape and real or personal injuries; he, however, distinguishes two lower grades of it consisting only of injury to property. The punishments for Saahasa are regulated according to the gravity of the crime but caste distinctions exercise a definite influence on them; the Brahmans particularly enjoy the privilege that they cannot be condemned to corporeal punishments or death sentence.[318]
Death sentence is by no means universal in the case of murder and manslaughter, rather the composition system was originally prevalent, according to which the cows given as recompense fell to the lot of the family of the deceased.[319] Later on in the place of this blood-money punishments, partly secular and partly spiritual in character came in vogue which were determined by the Brahmans who of course did not forget themselves in the performance of their duty if the punishments concerned were of a religious character.
Of the secular punishments, according to Baudhayana Dharmasutra,[320] the death sentence as well as confiscation of property is ordained only when the person killed is a Brahman and the assassin a man of a low caste ; if the culprit is a Brahman he shall be branded and banished; if the person killed belong to a non-Brahman caste he shall pay the proper compensation in coin or kind.
According to Yagnavalkyasmriti,[321] a female poisoner or a female incendiary and also the woman who murders her husband or her child shall be cruelly executed. According to Yagnavalkya and Brihaspati,[322] all murderers in general, open as well as secret, shall be punished by death and the confiscation of property. The death sentence is ordained also particularly for the murder of women and children.[323]
High treason (nripadroha) is punished very sternly. He who forges a royal edict or bribes the ministers of the king or serves his enemies or is in an understanding with them or being a man of low origin strives for royal position, or opposes the royal commands will be sentenced to death. If a man raises his hand against the king, even though he is wicked, he shall be impaled and burnt to death because his sin is worse than killing 100 Brahmans.
He who expresses inimical views about the king or vilifies him or betrays his plan shall have his tongue cut off and will be banished; if a person mounts the animal on which the king rides or sits on his throne, he shall pay the highest amercement. High treason as well as the violation of any of the very numerous rules of etiquette about deportment at royal court belongs to those crimes which the king himself can investigate on his own initiative and pass sentence even though he has not been informed about it by any complainant. In such cases the performance of a divine ordeal too may be imposed on the suspected criminal. Crimes against public order are likewise subjected to heavy punishments; e.g., the breaking of a dike is punished by death.
In verbal and real injuries (vaak and dandapaarushya) particular attention is paid to the castes of the insulter and the insulted ; the sentence is fixed according to Varna and Jaati. Thus a Kshatriya will be fined 100 panas if he abuses a Brahman and 200 if he actuality assaults him; a Vaishya shall pay 1 ½ times as much as the Kshatriya; on the other hand a Brahman who insults a Kshatriya pays only 50, for insulting a Vaishya only 25, and for insulting a Shudra, nothing at all.[324]
Injuries done by a Shudra to a man of a higher caste is punished with particular severity; thus if a Sudra reviles a virtuous Aryan his tongue shall be cut off ; if he reviles the name or the caste (of a twice-born) a piece of red-hot iron ten fingers in length shall be forced into his mouth or if he dares to learn Vedic texts by heart his body will be cut in twain.[325]
In general the insulter or the assailant of low caste loses the particular limb with which he insults or assails a member of a higher caste;[326] thus if he sits on the same seat with a high caste man his backside shall be brandmarked; if he spits on him his lips shall be cutoff. In such cases the assailed person may also take the law into his own hands by whipping the assailant on the spot, for by extorting a fine from such unholy persons the king himself will only be defiled.
In injuring an equal only a fine, small or big, has to be paid according as only the skin has been scratched or if blood too has flowed or if a bone has been broken or if both the eyes have been knocked out, etc.; the fines for insulting an equal is still more insignificant. When two persons have insulted each other he who began is the criminal.[327] In the case of injury to property as a rule a fine has to be paid.
Also, on the occasion of adultery (strisamgrahana) the distinction of castes is of the greatest importance, and more over it makes all the difference if the adulteress was properly guarded (gupta) or not, because if necessary surveillance was lacking the sentence will be mild and particular importance is attached also to the question if violence was applied. Thus for adultery with the wife of an Arya the Shudra shall have his organ cut off and his property confiscated and if the woman was under guard he shall also be executed.[328]
On the other hand a Brahman for a similar crime has to pay only a fine of 500 panas if the woman was willing, and 1000 panas in the case of forcible violation; for a Kshatriya and a Vaishya, there are proportionally higher punishments aggravated by incarceration, shaving of hair and the pouring of urine on the head.
A similar gradation is found in the sentences for the defloration of a maiden; the fines are lowest in the case of forced sexual intercourse with courtesans and female slaves, and they are higher in the case of unnatural sexual intercourse with a cow.
Moreover, secret conversation at a bathing place, etc. in a wood or in any improper place in general at any improper time and particularly sending flowers, ornaments and other presents, touching, pranks and jokes etc., are considered to be adulterous actions.
A particularly grave crime which is punished by castration is the criminal intercourse with the wife of the spiritual initiator and incest with mother, sister and other female relations and sexual intercourse with a queen. a nun (parivraajika), a nurse, a pious woman, a Brahmani etc. is also considered to be no less heinous a crime[329] but this crime rather belongs to the sphere of religious law. Intercourse with a woman of the lowest caste is also heavily punished and the abortion of the foetus is punished in the same manner.[330]
Public punishments are imposed on adulteresses but in most cases only if their crime is exceptionally flagrant; they are then sentenced to a cruel death;[331] ordinarily merely the insulted husband or the insulted family inflicted the proper punishment on the adulteress.
4.6 PUNISHMENTS
The utility and necessity of punishment (danda) has been vehemently and often extravagantly emphasized. The word Danda, really meaning “stick,” is said to be derived from the Sanskrit root dam “to restrain”[332] and to bind down peoples by means of punishments appears to be the principal duty of a good ruler, who for that reason is called Dandadhara “the holder of Danda,” i.e. the power of punishment, and is called an incarnation of Yama, the judge of the dead souls. If the king ceases to punish the subjects who swerve from the path of duty, the whole world will be destroyed.
Brahmans will leave their brother Brahmans, Kshatriyas their brother Kshatriyas, the Vaishyas will not do their work, the Shudras will rule the world. The punishment is identical with Dharma; it is the dark, red-eyed god, the son of the creator of the world under whose mighty rule the world feels itself secure. Punishment protects mankind and keeps watch when mankind sleep. The whole world is held in order by means of punishment, for a faultless man is very rare; even the gods and demigods are driven to perform their duty by the fear of punishment.[333]
Manu[334] divides the punishments into 4 categories: admonition, reproof, fine and corporeal punishment. Narada and Apastamba make distinction only between corporeal punishments and fines; the former extends from imprisonment to execution and the latter from one kakani to the confiscation of the whole property. According to Manusmriti[335] there are 10 places on which the punishment may be applied in the case of the three Iower castes—the Brahman suffers no corporeal punishment.
The ten places are the organ, the belly, the tongue, the hands, the feet, the eyes, the nose, the ears, the property and the body, i.e. life. Usually the fines are divided into three grades: Purva or Prathamasaahasa estimated at 250 (or 270)panas, theMadhyamasaahasa at 500 (or 540) panas, Uttamasaahasa at 1000 (or 1080) (Vishnusmriti, 414 etc.). Brihaspati[336] distinguishes between four kinds of punishments just like Manu, but he attaches particular importance to imprisonment and banishment; in cases of grave crimes he recommends an accumulation of different kinds of punishments and mentions 14 instead of the 10 the infliction of corporeal traditional places for punishments in which besides the above-mentioned limbs also neck, one half of the feet, the thumb and index, the forehead, the lips, the hindpart and the hips are named.
In point of fact the fines are mentioned most frequently in the Smritis in connection with the rules of punishment, either graded in the manner already referred to or otherwise in fixed amounts, or without any mention of amounts, or in relatively fixed amounts, i, e. fixed according to the value of the disputed property. Perpetrators of grave crimes suffer confiscation of their whole property, yet in such cases the weapons of a warrior, the instruments of a musician and the implements necessary for earning livelihood cannot be laid hold on.
In the case of mutilation and execution, as in other ancient systems of punishment, the principle of retaliation as well as symbolical punishments come into play. The offender or the robber shall lose that limb with which he assaults or injures anybody. The slanderous tongue shall be torn out, the adulterous limb shall be cut off, the hand raised for a blow or th e foot raised for kicking shall be cut off, red-hot iron shall be pushed into the mouth of the slanderous Shudra or boiling oil shall be poured into his mouth and ears, and for a stolen property many times the same has to be paid by way of fine.
The lips which spit on a man out of hatred and the thievish finger of a pickpocket shall be cut off, The adulterer shall be roasted on a red-hot bed of iron and he who pierces a dike shall be drowned. Moreover, the brandmarking of the murderer of a Brahman with the figure of a headless man, of the drinker with the flag of a tavern and of the incestuous person with the mark of feminine pudendum are also symbolical.
Detracting punishments such as riding on an ass, shaving of the hair, sprinkling urine on the head, hanging a garland of dices round the neck of a dishonest gambler, etc. and many Prayaschitta are no less symbolical in character.
Gruesome forms of execution are impaling, roasting, burning, cutting into pieces, trampling down by elephants, tearing to pieces by dogs, drowning etc. The flogging punishments are mentioned mainly for women, children and persons of low castes. Forced labour too appears as a public punishment as in the working off a debt. In the ancient works punishment by imprisonment is rather rarely mentioned. According to Manusmriti prison-houses should be built on public roads so that everybody can see the suffering and disfigured criminals, who, as the commentaries elucidate it, with their bodies emaciated with hunger and thirst, disordered hair and beard, often fettered in chains and mutilated—their hands or other limbs being amputated—produce a horrible impression on the onlookers. Banishment is mostly, but never in the case of Brahmans, accompanied by the confiscation of property, and there are also other combinations of punishments.
4.7 BLOOD MONEY
However closely the penal laws of the Smritis may agree with the principle of state justice, yet traces of a state of things have been preserved when the atonement for murder and slaughter was still regarded as a private affair and when the blood-money used to be paid.
Vedic expressions Shatadaaya and Vairadeya have proved that in the Vedic age a blood-money cows was paid to the relations of a murdered person, Baudhayana Dharmasutra[337] prescribes fines of 1000, 100 and 10 cows and a bull to be paid to the king for the murder of a Kshatriya, a Vaishya and a Shudra respectively. Generally the same indemnity has to be paid for the murder of a woman as for the murder of a Shudra as well as for an ox or a cow (excepting milchcows, draughts animals) and also for a swan, a peacock and other birds and animals.
Probably the king did not keep these fines for himself, but gave them to the family of the murdered person. The blood-money of 100 cows reminds us of the 100 cows which have to be given as price for an adoptive son or as the price for a bride.
In Baudhayana Dharmasutra, the above mentioned indemnities form a part of the “duties of the king”, but in Apastamba Dharmasutra,[338] they top the list of Prayaschitta and the bull is given Prayaschittarthah and in any case it was received by the Acharyaor the Dharmaadhikaarin who determined the indemnity while the cows as composition, probably even according to Apastamba, go to the family of the murdered person. Gaut.’s treatment of this question is more enigmatical.[339]
According to Yagnavalkyasmriti[340] and Manusmriti,[341] the cows too are presented to a Brahman as Prayaschitta, i.e. the blood-money has been completely changed into a spiritual atonement. Vashishta and Vishnu seem no longer to be acquainted with the blood money even in this form and prescribe other Prayaschitta in their place.
BIBLIOGRAPHY
- Vedic Texts
- Rigveda and Yajurveda Samhita– Pandit Damodar Satvalekar’s Commentary, Swadhyay Mandal Prakashan, Pardi.
- Taittiriya Samhita– Aanandashrama edition with the commentary of Saayana.
- Shatapataha Brahmana-edited by Weber.
- Chhandogya Upanishad-with commentary of Shankaracharya, Geetapress Gorakhpur.
- Sutra Texts
- Apasatamba Dharmasutra-with the commentary of Haradatta, published at Kumbakonam.
- Apastamba Grihyasutra-with the commentary of Sudarshanacharya, Mysore Government Central Library Series.
- Asvalayana Grihyasutra-with the commentary of Narayana, Nirnayasagar Press.
- Baudhayana Dharmasutra and Gautama Dharmasutra–
Anandashram Press.
- Vasishtha Dharmasutra-ed. by Dr. Fuhrer, Bombay Sanskrit Series
- Smritis
- Brihaspati Smriti-Anandashrama Press.
- Katyayana Smriti– reconstructed by PV Kane.
- Manu Smriti– with the commentaries of Medhatithi Govindaraja, ed. by V.N. Mandlik.
- Yagnavalkya Smriti-with the commentary Mitakshara of Vijnaneswara, Nirnayasagar Press.
- Commentaries and Digests
- Dayabhaga– Jimutvahana, ed. by Pt. Jivananda.
- Medhatithi-vide Manusmriti.
- Mitakshara-Vijnaneswara, Nirnayasagar Press.
- Smritichandrika-Devanna-Bhatta, ed. by J.R. Gharpure.
- Other texts
- Kautilya’s Arthashastra-Dr. Shama Shastri Edition, Mysore University Oriental Library.
- Nirukta-Yaska, ed. by Roth.
- Books
- History of Dharmasastra (All Vols.)-Pandurang Vaman Kane, Bhandarkar Oriental Research Institute.
- A Dharma Reader: Classical Indian Law-Patrick Olivelle, Columbia University Press.
- The Spirit of Hindu Law– Donald R. Davis, Cambridge University Press.
- The Dharmasutras: The Law Codes of Ancient India– Patrick Olivelle, Oxford University Press.
- The Classical Law of India– Robert Lingat,, Munshiram Manoharlal Publishers.
- Jurisprudence, R W M Dias, LexisNexis, Fifth Edition.
[256] 33-42.
[257] ManuSm 11.64.
[258] Kathopanishad 31.5; AV 6.112.
[259] YagSm 3.321.
[260] YagSm 3.315.
[261] ViSm 50.24.
[262] ViSm 23.59.
[263] 4.5.
[264] 3.10.14
[265] GauDh 19.16.
[266] ViSm 50.25.
[267] 3.301.
[268] 12.165.46.
[269] Yet, for instance, the drinking of spirituous liquor may be expiated for through fasting, chastity and sleeping on the ground. The above mentioned and similar other modes of suicide for the expiation of deadly sins are met with in most of the Smritis, yet later in the penances leading to death may have been reckoned among the customs no longer in vogue in this age.
[270] 11.183-188.
[271] Anudakam kar omi
[272] GauDh 21.6.
[273] Vishnusmriti 22.57.
[274] YagSm 3.297.
[275] A new pot of clay or gold is brought, it is filled with water out of a sacred tank or river and then it is overturned or poured upon him while his relations too bathe in the same water. Mantra(s) from the Veda, presents to Brahmans and the same festivities which take place at the consecration of a new born child accompany this sacred ceremony. Yet before the excommunicated person is taken into society another test shall take place: he offers grass to the cows as fodder; now only if the cows eat his grass he is again considered to be fir for mixing in a society, as per Manumsriti 11.197 and Yagnavalkyasmriti 3.300. After his reacceptance into the caste he can no longer be kept down in ay way; everybody must have intercourse with him in every respect, as per Yagnavalkya 3.296. Vasishta 15.18 contains a remarkable statement: people should walk before those who re-admit a person into society gambolling and laughing and walk before those who excommunicate a person weeping and sorrowing.
[276] 9.240.
[277] ManuSm 8.318; VaDh 19.45.
[278] ManuSm 8.314.
[279] NarSm14.11.
[280] ManuSm 8.371.
[281] BaudhDh 1.18; ViSm 5.3-7.
[282] YagSm 3.226.
[283] 11.46.
[284] Mit on YagSm 3.226.
[285] ManuSm 8.350.
[286] ViSm 51.74.
[287] 3.227.
[288] Apastamba Dharmasutra 2.29.1
[289] Manusmriti 9.277.
[290] Brihaspati Smriti 2.5-10.
[291] 6.45.1.
[292] NarSm14.22; YagSm 2.271.
[293] ViSm 3.67.
[294] Chauragraaha, chauroddhatr, chauroddharanikaa(s).
[295] GauDh 12.43-45.
[296] NarSm 1.42; BrSm 2.13.
[297] ManuSm 8.342.
[298] YagSm 2.162.
[299] NarSm 1.228.
[300] Prakaashataskara, ManuSm 9.256.
[301] ManuSm 9.221; GauDh 12.41; BaudhDh 2.2.16.
[302] RV 1.41.9; AV 7.50.
[303] Aprakaashataskara, per BrSm 22.5.
[304] YagSm 2.203; BrSm 26.2.
[305] Manusmrtiti 9.261.
[306] YagSm 2.266-269; BrSm 22.6.
[307] YagSm 2.273.
[308] ViSm 9.9.32..
[309] ManuSm 9.292.
[310] 2,.275.
[311] 14.1.3.
[312] NarSm 14.12.
[313] ManuSm 8.417.
[314] ManuSm 8.341; 18.39)
[315] GauDh 12.15-17.
[316] BriSm22.13.
[317] 14.2—6.
[318] ViSm 5.2.
[319] According to Kautilya, however, under cerain ofrcumstanoe allows the Brahman the dubious privilege of being drowned instead of being burnt alive.
[320] 1.18.
[321] 2.279.
[322] YagSm 2. 273, BrSm 22. 27
[323] ManuSm 9.232.
[324] GauDh 12.8-13.
[325] ApDh 2.27; ManuSm 8.172; GauDh 12.6.
[326] ViSm 5.19.
[327] NaSm.
[328] GauDh 12.2.
[329] NarSm.
[330] YagSm 2.277.
[331] ViSm 5.18.
[332] GauDh 11.28.
[333] ManuSm 7.14-30 ViSm 3.95.
[334] 8.129.
[335] 8.124.
[336] 27.4-12.
[337] 1.19.1.
[338] 1.24.1.
[339] GauDh 22.14—18.
[340] 3.266.
[341] 9.128—131.
