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Theory OF Punishment IN Ancient India - Punishment

Penology & Victimology (Karnataka State Law University)

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THEORY OF PUNISHMENT IN ANCIENT INDIA

Author(s): Radha Krishna Choudhary and Radha Krishna Chowdhary
Source: Proceedings of the Indian History Congress , 1947, Vol. 10 (1947), pp. 166-171
Published by: Indian History Congress

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166

and the prosperity of the world

will of the people. Pleas

love of the people. .....th
Pauras - Paura was one of the units of administration. In
modern terminology it may be identified with the township.
Ancient India we find the recognition of the Kula and Gana
laws23 and we find that the Kula Court was presided over by
Kulika and according to the prescribed Law the appeal from
Kula Court should go to the Gana Court.24 Kulika was a judge
of the Paura, and the Prathama Kulika was generally regarded
as the First Judge of the Paura Court. Paura maintained the
tradition of local laws. Paura also enacted the fixed laws
(or Sthiti) or the country laws (Desa Sthiti).

THEORY OF PUNISHMENT IN ANCIENT INDIA

BY

Radha Krishna Choudhry, M.a.

Ganesh Dotta College , Begusarai (Bihar)

Manu has rightly pointed out in a nutshell the Ancient

Indian Theory of Punishment in the following words : -
"Funishments have been prescribed by the sages, so that
righteousness may not be outraged and unrighteousness may
be cured".1
In Ancient India law was based on the twin conception of
theology and agreement and as such it is clear that even in
matters of punishment and justice, the theology had its sway.
General conception about punishment was that it should help the
man oř the criminal to reform himself according to the prescribed
codes of Dharma, This does not mean that punishment was
merely religious stick to terrify the people. Punishment w
meted out with accuracy and those who violated the king's pea
or justice were heavily punished, after being duly examined
the Court. Punishment signifies Danda. The administration of
justice pre-supposes the existence of an authority. Every organisa«
tion, Social or Political, must have some authority without which
the human society can't function. The principle of authority is
an eternal support of the human society. Danda is the important

22. Agni Purana, 164, 165.

23. Yajnavalkya 1.360. II. 186«
24. Viramitrodaya, p. 40.
1. Manu VIII. 122.

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167

aspect. The state must have some coercive power and viewed in
this light we can see that Danda is the coercive power of
the state. The term Dandniti was first adopted by Uśanasa*
and the "Book 'Dandniti' " ascribed to Prajāpati is mentioned in
Mahābhārat.8
Prajāpati is regarded as the creator of Danda.4 Danda was
created by God Shiva after long concentration and even the
Science of Politics was made out of Danda.5 Sometimes Danda
is identified with Dharma and it is said that the Danda is the
Soul of Dharma6 and is Dharma itself.7 The whole universe is
under Danda.8 Thus we find that the theory of Punishment of
Danda was basically theological and metaphysical and an attempt
was always made to develop its abstract side in its entirety.
Though we find that a realistic approach to law was given in the
Vedic period, its practical side was fully ignored in the later period.
The principle of Danda is omnipotent. One particular reason
behind the religious colour of Danda is that religion gives Danda
the authority or sanction. The Hindu conception of sanction
corresponds closely to the modern concept of Sovereignty.9 Speak,
ing about the authority of Danda, Manu observes : "The whole
world is rectified by Danda and even the Gods and Demi-Gods
are subject to its authority."10 Manu identifies Danda with
Dharma "and it is through the sanction of Dharma that all men
enjoy the World straying away from Svadharma.13 Danda i8 the
authority which represents the state's will and as such it has
got not only a legal pre-eminence but also a moral pre-eminence.
It is the fountain of social peace.
It is with the development of society that the idea of punish-
ment also developed. Society was organised on some fundamen-
tal principle. In order to stabilise the society it was thought proper
to vest some authority in the state. The state was armed with
the power to coerce, restrain and punish according to the needs.
But in doing so, the state was in duty bound to take note of
Dharma and do accordingly. Hence the practice was always
guided by theory. Danda was the guarantee of universal
happiness and righteousness18. By awarding Danda it was
thought that it was designed to correct the human vices. The
epic conception was that Danda had two functions. "It protects
2. .Mudraraks&s 1.
3. Santi Parva 59.
4. Manu, VII 14.
5. KajdharmanuSasana Parva, 121.
6-1
7. y Ibid . 7, 51, 50, 121.
8.J _
9. Gatell, 'History of political Thought, p. 27.
10. Manu. VII, 22, 23. spraTïïN «RÇTO
11. Ibid. VII. 18 5ÇÏ «TT:
12. Ibid. VII. 15.
13. Rajdharmanusasana Parva. 112, 34 35.

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163

and governs"14. Manu holds the same view about Danda15.

Danda saves Dharma, Artha, and Kāra16. Ethical interpretation
of the term leads us to believe that Danda acted as a guide for
all and helped men in choosing between right and wrotig.
Dharma was really well applied Danda17 for it paved the way
for sound morality.18 Danda is a great lustre. It cannot be
held by despots. It strikes down the King who swerves from law19.
Only a King who is honest could wield Danda30. Danda is also
identified with administration2 x. According to Manu Danda was
vested in the Amãtya22. If we identify the term Danda with
administration we will have to accept that« there was an officer
to execute Danda into practice. That Officer known as Daad-
Nãyak, or the Minister-in-Charge of the administration.
Danda is derived from the term Dama - "to restrain". The
means by which a person is restrained from misconduct is Dand
Danda is the means of purification and the punishment awarded
to the offender is for the purification of the state24. Kautilya
treats Danda as an instrument for bringing people under control®5.
In ancient India, Danda was simply a part of the four-fold
policy of the state, i.e. "Sama, Dāma, Danda and Bhedä", (re-
conciliation, gift, punishment and division). Danda is extolled
and almost deified in Dharmshāstra literature. Gautam
treats Danda as reforming or correcting influence.
King was only empowered to inflict Artha and Vadha D
(fine and corporal punishment), Some authorities hold the
" that the right of inflicting punishment was the prerogati
King but a glance at the republican constitution of ancien
will dispel this notion. In the republican constitution the Raja
or the President alone had the right to convict the accused
but in doing so he was to be guided by the "Pareni Pustaka" or
the Book of Precedents. Thus we find that the King honoured
the law of the land.
The ancient Indian Theory of Punishment was based ,on
the central idea that punishment for wrong-doing was to be meted
out by the King for the preservation of social order26. Dr. Sen

14. Ibid. 50.

15. Manu VII, 18 tot; siìfer: irai: traí īre iraifa 1
16. Rajdharm~....5Ó.
ļļ' } Ibid. 120, 50.
19. Manu. VII. 28.
20. Ibid. VII, 30-31.
¿1. Jayaswal - #Hindu Politv.' d. 296.
22. Manu. VIL 65.
¿o. oukranitK
-4. Nitivakyamritam, p. 202.
25. Arthasastra, p. 9.
26. Dr. P. K* Sen, "Parology, Old and New" p. 89.

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169

holds the view that there is no tinge of the theory of retribution

or vengeance and points out that in the matter of punishment,
the directives given by the Hindu legal experts compare favourably
with the advanced systems of to-day, in taking into account not
only the objective circumstances of the offence but also the sub-
jective limitations of the offenders«7.
The ruler in ancient Indian polity is called Dand-Dhar.28
Danda is considered as an essential attribute of royalty.29 The
King regulates the state by wielding this weapon of Danda.
Danda is supreme in Royal Dharma.30 Danda brings into
existence well-regulated and well-planned society recognising right
and duties and privileges and law. Behind this philosophy of law
and punii hment lies the conviction, as, held by Manu, that man
is essentially low, vile and selfish and can be kept on straight
path only with difficulty and harshness.®1
The view of Dr. Sen, that there is no tinge of retribution,
does not hold good in the light of modern researches. Kaegi has
rightly observed : " The hymr.s strongly prove how deeply the
prominent minds in the people were persuaded that the eternal
ordinances of the rulers of the world were as inviocable in mental
and moral matters as in the realm of nature and that every wrong
act, even the unconscious, was punished and sin expiated."82 The
Vedic conception was that it was a retribution from heaven.
Expiation and Danda are spoken of as twin modes of purifi-
cation. Retribution in form of expiation was very common
during the Vedic period. Expiation was a logical part of the
system based on religion and metaphysical theory. The divine
judgment was based on the belief that all guilt was punished
by God. The existence of the term "Vaira-Deya" or Wergeld
proves the payment of compensation. Retribution in its practical
character was present in the Vedas. In Mahābhārat also punish-
ment as retribution is visible in the following words : - " To take
revenge on him who takes revenge, to retaliate, when struck
and to do harm in return, for harm"88.
The punishment by oath and ordeal was also known.
According to Jolly, the system of oath was prevalent even
during the time of Rigveda. Jaiswal says that ordeal was only
a form of oath.34 The system of ordeal is as old as Rigveda. Accor-
ding to Närad and Yagnavalkya ordeal shall be resorted to only

27. Ibid . p. 110.

28. Jolly, 'Hindu Law and Custom,' p. 280.
29. Ibid. p. 263.
30. Nitisar, p. 30.
31. Dr. Beni Prasad. "Theory of Govt, in Ancient India, p. 39.
32. Kaegi, Rigveda, p. 18.
33. Vana Parva. 29.
34. Jayswal, 'Manu and Yagnavalkya,' p. 135.
22 . .

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in default of worldly proofs.85 When the right arguments fail

ordeal has to be used in the investigation of cases.36
Punishment for crime was inflicted by divine judgment*
or through the penance imposed by the priest - an amalgama-
tion of earlier priestly jurisprudence with later legal practice -
penance was inflicted by the King at the behest of prest37. The
philosophy behind this theory of expiation was that punishment
purifies sin. The principle of purification is also advocated by
the Purāņa38.
Another marked feature of Danda was the restraining
principle. Gautama has opined that the creation of punishment
was for checking the miscreant and wrong-doers. Kautilya and
Sukra suggested the practical means of ennobling the criminal
soul. So far as stringency is concerned Kautilya is no less but
his view was reformatory. His conception is that the erime is
inherent in social make-up of a man and it spreads from person
to person as a disease. He treats crime as a contaminating
disease and suggests that the criminal must be reformed by finally
doing away with the criminal tendency in him. He says : "When
the guilt is got rid of, there will be no guilty persons, but when
only a guilty person is got rid of the guilty will contaminate
others"89. Kautilya wants the extirpation of those who desire evil
of the kingdom.40 He not only attached reformatory or retributive
value to the punishment but also he saw the germs of discipline in
the punishment. His inner motive was to educate the people and
in this respect he was in line with Aristotle who viewed punishment
as "educational discipline." Kautilya observes : "Punishments which
alone can procure safety and security of life depends on discipline41.
He, like Vishnu, holds that punishment must be proportionate to
guilt.42
Sukra's idea was that punishment leads to the abdication
of bad practices and that the king should administrate punishment
for the furtherance of morality and religion and he regards
punishment as the great "stay of virtue."43 Kāmandaka justifies

35. Yagnavalkya. II 22. Warada, 1 241. Jolly, Hindu Law and

Custom," p. 308.
36. Sukraniti, p. 203.
37. Hopkins, *' Ethios of India," p. 110-13.
38. Bhagwata Purana, 111, 9 ; 10. 14.
In this connection it must be remembered that the duty of the
King was to free the people from sin by punishing them according to
law. See Rajdharmanusasana Parva, 68.
39. Arthasastra, p. 4°¿5.
40. Ibid . pp. 187 and 197. Also consult S. 5. E. Vol 33, p. 90
41. Arthasastra p. 10
42. Ibid, p. 71,243 and 247. Also Vishnu III, 65.
43. Sukraniti, p. 13U-31

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171

punishment for the purposes of justice.44 According to YāgSavalķya

punishment should place the subject in right path.45 Before
awarding punishment the following points were taken into con-
sideration : (1) Motive (3F3>fr°r), (2) Circumstances, (3) Capacity of
the criminal, and (4) the crime.46 Various types of punishment
have been devised,47 such as (a) Vadhdanda or Capital Punishment,
(b) Arthadanda or Fines, (c) Vagdanda or Verbal Punishment, and
(d) Mornl Disapprobation. Pali texts inform us that a Brahmin was
not given a privileged position in the eyes of law and if a Brahmin
was criminal he was sure to be executed.

THE STORY OF VASU UPARICHARA AND ITS SUMERIAN,

GREEK AND ROMAN PARALLELS

BY

Prof. J. P. D'Souza, M.A.,

Mphimtone College , Bombay.

To the ancient Indo- Mediterranean peoples the eagle, besides

being other things, was a vehicle between earth and heaven, and,
therefore, a means of deifying mortals. This is borne out by the
Indian story of Vasu Uparichara, the Sumeri an legend of Etana,
the Greek-Roman myth of Ganymedes, and the ceremonies con-
nected with the apotheosis of the Roman emperor after his
death»

The Story of Vasu Uparichara

We are told in the Mahabharata1 that once upon a time

there lived a King called Vasu Uparichara, who was singularly
devoted to Narayana. In the fulness of time, "renouncing his body,
he ascended to heaven".3 However after some time, through

44. Nitisar, p. 64.

45. Compare this view with that of Mahabharat where it has been
said that the duty of the king was to bring the people to
good ways of life. (Vide Moksdharma Parva, 167).
46. Manu and Yagnavalkya, p. 83.
Mokshadharma Parva 167.
Manu VIII. 126.
Yajnavalkya 1. p. 59.11 p. 110 and
also Vasistha.
47. Mokshadharma Parva 167. Manu VIII. 129-30.
1. Shanti Parva, Chs. 336-338.
Dutt's translation, Vol. Ill (Caloutta, 1903)
2. Ch. 337, v. 59.

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