Concept of Danda

in the Dharmasastra

Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts

First Six Monthly Review

Cultural Conceptualisation of Danda in the Dharmasastra
04 October 2023, Indira Gandhi National Center for the Arts
 Legal Culture

The idea of legal culture has an important place in recent debates

about the nature and aims of law. It means that law should be seen as
embedded in the broader culture of society. In a sense, law is part of culture.
Concept of legal culture refers to a more general consciousness or experience
of law that is widely shared by those who constitute a nation. (Chiba, Varga).

A legal system that does not correspond to the social, religious

and cultural sensitivities of a society can not be owned by the people but
will be seen as foreign and imposed. Without a conducive social and cultural
understanding mere formal law cannot create willing legal and moral
obligation.
 Western Legal Tradition

Bentham, Austin and Maine were major jurists of 19th century who
developed the empirical and analytical jurisprudence and insisted vigorously
on law as command of the sovereign. They advocated two basic changes in the
common law system: (1) legislators—rather than courts—should make the
law; and (2) the aims of law rest on the will of legislators.

In general, the Western legal tradition is indifferent to morals.

Morality and morals are seen as for the legislator in the making legal codes
out of their perception of morality. How this is done and how it ought to be
done are not matters for the judge or the jurist who have to apply the given
law.
 Indian Legal Tradition

Indian legal tradition is an indigenous system of law and justice,

rooted in the Vedic concepts of rta and satya. In addition, dharma, danda,
vyavahāra, ācāra and their various forms and other such terms are relevant
to a deeper understanding of the richness of Indian legal tradition.
(Coomarswamy, Jois, Tripathi).

Indian tradition of law is based on recognition of a cosmic order,

the observable system of nature, conceptually embodied in the concepts of
rta and Dharma. The Indian concept of macrocosmic order, beyond direct
human reach, transcends and envelops any form of empirical law-making.
(Dutt, Jha, Kane, Kangle, Sarkar, Sen, Pal)
 Dharma the Global Ethic

Indian legal tradition upholds at all times natural law principles

applied in contextually specific situations. Natural law exists outside the
realm of the human also, and there is subtle link between cosmic order and
human existence. Socially responsible action is the foundation of individual
and social development. Freedom is in dharma. (Jois, Menski).

In dharma, individual progress and social cohesion are

complementary. Dharma denotes not just ‘religion’ or ‘law’, but ethical
duty, placed upon every individual, to contribute to macrocosmic as well as
microcosmic order. Individual freedom rests on socially operative normative
order to which ruler is also accountable.
 Dandaniti

No sentence should be passed merely according to the letter of

the law. If a decision is arrived at without reasoning and considering the
circumstances of the case, there is violation of dharma. (Brhaspati Smriti)

Appropriate punishment shall be given to those deserving

punishment, after ascertaining the motive, time and place, and the
condition and the nature of offence,. (Manu Smriti)

The man who keeps triple discipline of body, speech and mind –
tridanda – and rightly disciplines desire and anger, maintains social
cohesion and thereby attains success. (Manu Smriti).
 Atatayi Vadh

Present day advanced systems of law give the right of self defence
to every individual against an assailant to the extent of causing the death of
the assailant.

The dharmasastra had evolved and defined the safeguards

against the hasty or improper use of this right no less carefully than the
modern Indian penal code. (Vishnu Smriti)

The similarity between modern law and dharmasastra on the

issues like self-defence, stimulate comparative study and the search for a
better system of law. (Aiyangar)
 Dandaviveka

Indian tradition shows us the value of insightful thinking and

reminds us that legal processes and institutions are not the exclusive
province of state and legislature. They should function in close touch
with the most diverse of human contexts. Grading of punishment in
proportion to the evil was a sign of mature legal system exhibiting great
wisdom. (Supreme Court) .

The dharmasastra transcend the letter of the law in the light of

dharma as a moral law and principle. This deeper realisation gives
scope for application of conscientious discretion in the interest of social
cohesion. Danda is a double edged sword that constrains individual
follies and enables human advancement through dharma.
 References
Aiyangar, K.V. Rangaswami, Rajdharma, Adyar: Adyar Library, 1941
Chiba, Masaji, ed. Asian Indigenous Law. London: Routledge, 2009.
Coomarswamy, A.K., Spiritual and Temporal Power, New Delhi:DK, 2013.
Davis, Donald R., The Spirit of Hindu law, New Delhi: Cambridge, 2018
Dutt, Manmath Nath, The Dharmasastra, New Delhi: Cosmo Publications, 1979.
Jha, Ganganath. Manusmṛti, 10 vols., 2nd edn. Delhi: Motilal Banarsidass, 1999.
Jois, Rama, Legal and Constitutional History of India: Gurugram: Universal, 2022.
Kane, P. V. History of Dharmaśāstra. 5 vols. Poona: Bori, 1962–75.
Kangle, R.P., Arthasastra, Delhi: Motilal Banarasidas, 2021.
Menski, Werner. Hindu Law: Beyond Tradition and Modernity. Delhi: OUP, 2003.
Pal, Radha Gobind, The History of Hindu Law, Calcutta, CUP, 1958.
Sarkar, Kishori Lal, The Mimansa Rules of Interpretation, Calcutta: Thacker, 1905.
Sen, P.K., Penology Old and New, Calcutta: Longman Green, 1943.
Supreme Court, Courts of India, New Delhi: Publications Division, 2016.
Tripathi, U.K., Anoop Kumar, eds., Vedic Traditions of Law, Varanasi: BHU, 2022.
Varga, Csaba, Comparative Legal Cultures, Budapest: Tarsulat, 2012,.