

Kautilya’s Views on Law & Criminal Justice System

UNIT III
 Introduction

 It is the power of punishment alone when exercised impartially
in proportion to the guilt, and irrespective of whether the person
punished is the King’s son or an enemy, that protects this world
and the next”
 -Chanakya.
 Contd..

 Chanakya (also called Kautilya) remains an extremely
influential and controversial figure in Indian history even
2,000 years after his death.
 Chanakya is popularly in academic circles known as
Indian Machiavelli even though Chankaya lived 1,700
years before Machiavelli and Arthashashtra as work is
much more in-depth and concise than the most famous
work of Machiavelli i.e. The Prince.  
 Contd..

 His most famous work is the Arthashastra, which is a
comprehensive treatise on economics and politics. The
Arthashastra is an authoritative work on statecraft,
has three parts that relate to economic development,
administration of justice, and international affairs and is
further divided into 15 books. Book 3,4 and 5 deal with
crime and punishment in a Kautilyan state.
 Contd..

 The Arthashastra also provides the reader with a glimpse of
Ancient India through its vivid description of life and
administration in the Mauryan Dynasty, something that forces us to
think and ponder upon how exactly did justice function in Ancient
India?
 At a time when law and order increasingly becomes an issue of
concern, we can learn from the wisdom of our forefathers and
understand how the idea of criminal justice has grown and evolved.
 This piece aims to analyze broadly the various crimes as defined by
Chanakya, their penal enforcement, and parallels with the current
prevalent system.
 Essentials of a Justice System 


 Chanakya describes maintaining law and order as the
essential duty of government.
 This can be done in two ways, maintaining the social
order as well as preventing and penalizing criminal
activities.
 There is a clear distinction between the administration of
civil law and criminal law. Book 4 of his omnibus includes
the issues of criminal law and is titled ‘removal of thorns’
or removal of anti-social elements.
 Contd..

 For Kautilya, there were four bases of justice according to
which any matter in dispute must be judged.
 Dharma, based on truth.
 Evidence, based on witnesses.
 Custom, traditions accepted by the people.
 Royal edicts, the law as promulgated.
 Contd..

 A judge was called a ‘Dharmastha’ or upholder of justice
indicating that ultimately the highest law of the land is
Dharma.
 A bench of 3 Magistrates or Judges was responsible for
the containment of anti-social activities.
 Contd..

 The remedies available in the Kautilyan State varied, in
most cases fines were an adequate remedy but there were
also remedies of incarceration, torture, and death
available. He further discussed more pillars of a  justice
system.
 Firstly, that the rule of law had to be followed which
suggests that, no one was above the law.
 Checks and balances were clearly introduced for all public
officials including extra fines and punishment for
malpractice in public duties.
 Contd..

 The doctrine of ‘Matsya Nyaya’ or the weak get eaten by
the strong was not to be followed in an administration.
 If proper law was maintained by the king, the weak would
not have to succumb to the fancies of the powerful and
thus it was the responsibility of the Kingdom to protect the
weak and follow the principles of justice.
 Contd..

 Secondly, the laws must be clear and concise and
properly codified to ensure their remains no ambiguity or
room for misinterpretation by judges and officials.
 Thirdly, the effectiveness of law enforcement depended
on 3 factors- honesty of the law enforcer, proportionality
of punishment and the importance of judicial fairness in
the sense that justice must not only be done but also be
seen.
 Kautilyan Penal Code


 Kautilya based his penal system on a complex interplay
between monetary and physical punishments.
 He subscribed to a theory of the maintenance of law and
order by the government by punishment, also
called Dandaniti.
 Contd..

 The prescribed punishment could be modified by the
magistrate taking into account the circumstances of the
case and the local conditions, thus a certain flexibility was
granted to the Judiciary to implement the laws.
 The punishment was intended to strike a perfect balance,
neither too severe nor too harsh.
 Contd..

 Existence and consequently reliance over upon regressive
factors like caste and gender discrimination cannot be
denied in the text and for some offences, the degree of
punishment varied depending on the caste of the criminal.
 Punishment for offences depended on the caste and status
of the victim and the accused and continued to vary with
their respective circumstances.
 Contd..

 Checks and balances were established for the judges.
 No judge was to threaten, intimidate, misrepresent and fail
on his other ethical duties, failure to do so lead to a hefty
fine and even impeachment from office.
 Contd..

 Government officials involved in any corruption were to
be severely punished.
 Leniency was shown within the system to those suffering
from poverty, illness, thirst, etc and special circumstances
of the person was to be taken into account while fixing the
penalty.
 Drawing Parallels 


 As described in the Indian Penal Code, crimes like causing
miscarriage, assault, rape, homicide, and even State
corruption were clearly identified and their definitions and
separate punishments were prescribed by Chanakya.
 The omnibus remains progressive in certain ways when it
describes that it sets down a clear standard for what
constitutes rape:
 No woman shall be enjoyed against her will.
 Contd..

 While the Criminal Law (Amendment) Ordinance
2018 further strengthened more severe punishment for
rape of a minor, so did the Kautilyan Penal Code where
cases of rape of a minor were to be punished more
severely.
 The punishment was also proscribed for Animal cruelty
and deforestation including varying punishments for
harming animals.
 Contd..

 So while the western world, woke up late to the
realization about protecting wildlife and nature, Chanakya
had already in his Code provided safeguards for the
animal kingdom something that also represents the
emphasis on ‘Sanskriti-Prakriti’ or the confluence
(Union) between urban development and nature that
Indian philosophical traditions have long emphasized
upon.
 Contd..

 Largely, all major modern crimes were covered by
Chanakya and the width of his vision and foresight can be
seen in the division he proposed between a civil and a
criminal system and identification of a varying number of
crimes including a separate judicial system as well as a
separate investigation system.
 Criminal Investigation


There were three grounds of arrest in a Kautilyan
Justice System-
On Suspicion,
On Possession and
For crimes such as murder.
The difficulty in the investigation during those
times was taken into account.
 Conclusion

 While 150 years later, we continue to largely follow the
Penal Code drafted by Macaulay, Chanakya offers a
unique insight into the pursuit of future advancement of
criminal law jurisprudence by opening up avenues for an
amalgamation of its core principles with a culturally
inclusive identification of stakeholders.
 Kautilya’s justice system shares many of ideals and
objectives that are in consonance with our current justice
system.
 Contd..

 He continues to remain a relevant yet largely
underrepresented think.
 Although the execution of his ideas across the fields of
law, politics, and economics is a rare milestone that would
revolutionize the criminal justice system by restoring the
synergies of each niche of India, countering the lack of
representation given to societal factors and the ecosystem.
 Contd..

 Chanakya and his thoughts on the Criminal justice system
force us to rethink strategies with the aim of widening the
scope of our system and evolve from the seeds sown by
the Mauryan Empire instead of burying historical lessons
to make it stronger and more robust.
 Contd..

 There is a crucial need to bridge this gap between the past and
the present by ensuring a discussion of the confluence of cultural
and legal principles.