Punishment
Policy in the Vedic Tradition
The
Realistic Aspect of Indian Spirituality
Sunil
Sondhi
Tagore
National Fellow
Indira
Gandhi National Center for the Arts
A simplistic and superficial view of Indian culture and civilisation is that it is spiritual rather than realist. An excessive dose of religiosity and disregard of material interests are talked of as the characteristic features of the Indian mind in which spiritual perspective is seen as incompatible with aggressive defence of basic values of individual and social life. These interpretations of Indian temperament are not at all borne out by facts of Indian history. It seems that adequate attention has not been given to the study of the Vedas, Mahabharata, Ramayana, Dharmasastras, Arthasatsra, Niti-Shastras, and other treatises on warfare, law enforcement and diplomacy. Binoy Kumar Sarkar used the term “Transcendentalized Positivism” for the Indian ideal of synthesis and harmony of practical and the spiritual, particular and the universal.[1] Sarkar saw in the Smriti, Niti, Artha, and literature, the same vigour in social life, the practical and positive outlook, and the emphasis on “moral duties” that characterizes the Shruti literature in the Vedas and Upanisads, whose ambition was no less than that of connecting with not only the “lithosphere from sea to sea, but also the atmosphere and the skies”, and realization of the transcendental in and through the immanent, and freedom through the law.[2]
S.
Radhakrishnan was more forthright, “We cannot say that violence is evil in
itself. Destruction is not the aim of fighting in all cases. When its aim is
human welfare, when it respects personality, then war is permissible. If we say
that the criminal’s personality should not be violated, even when he violates
the personalities of others, if we treat the gangster’s life as sacred, even
when he brings about the destruction of several lives more valuable than his
own, we acquiesce in evil. We cannot judge the use of force, as good or bad, by
looking upon it in isolation”.[3]
In Indian
tradition use of dandaniti, or punishment policy, is considered an
obligation to check the criminal, protect the helpless, and restore social
order. Such a use of force is considered constructive as it strengthens orderly
conduct by restraining disorderly behaviour. It works for the ultimate good of
both the individual and the society. Law enforcement action against willful
internal and external threats is necessary for the protection of political,
economic, and cultural system of a society against forces of disruption and
anarchy, and for proactive promotion of common good.
About the battles and the
response towards enemies the Vedas say, “May Indra aid us when our flags are
out; may our arms be victorious. May our brave warriors come home with flying
colors and protect us in the din of battle. Confusing the minds of our enemies,
seizing their bodies. Attack them, confound them. Let our foes abide in utter
darkness. We do not hate the conquered enemy; may we enjoy peace and security.
Whosoever with an unholy mind tries to injure us, bragging about his might
among princes, let not his deadly blow reach us. May we humble the wrath of the
boastful miscreant”.[7]
From heaven and earth bring righteous laws of
punishment and correction against sin and crime, and against the supporters of
sin and crime as well as against sympathisers with injustice and evil. Give
incentive and encouragement for the righteous, and fearsome prohibitions for
the adamant evil so that you nip and bury rising crime and evil in the bud. With
power and force, look all round, search for the criminals and use your weapons
of defence and offence, and with fiery, thunder-tipped, fatally destructive,
irresistible and inviolable weapons fix the voracious enemies. Strike them on
the rise and crush them into dust, sending them into silence and oblivion
without uttering a sigh of pain or voice of protest.[9]
It also asks for vigilance against the enemies and
their prompt destruction, “Let us be watchful and alert against the malignant,
evil and treacherous forces, and ward them off and eliminate them with the
fastest interception and destruction at the very outset. Let there be no peace
for the evil doer whoever any time may try to injure, sabotage or enslave us
out of jealousy, malignity or enmity”.[10]
Attacks on our social system through
misinformation are to be repulsed effectively and decisively, “If there are
those who intentionally malign, and defame the man of purity, truth and
immaculate honour and spotless reputation, or with their powers and prestige
denigrate the man of goodness and charitable action and bring disgrace upon
him, deliver such men to the isolation of darkness. Whoever injures or impairs
vigour and power of our social system, let such an enemy, the saboteur, be
reduced to nullity and himself suffer debility of body and even deprivation
from self-extension and further growth”.[11]
The fight is against forces of truth, order and
harmony, both external and internal, “destroy the evil and the wicked and also
the one who speaks the untruth, since both the evil and the liar end up in the
bonds of Indra, the god of justice and power. If I were
a sinner on the move, and if I troubled any person in life, then let me suffer
death today just now. But I am not such, nor have I done so. Whoever says that
I am a devil even though I am not a devil, and whoever says that he is innocent
even though he is a sinner, may Indra, god of power and justice, punish such a
person with his mighty vajra. May such a liar fall to the deepest darkness as
the worst of all living beings”.[12]
The social organisations are asked to be vigilant
and active to keenly look for the forces of evil and violence, and then, bring
to justice all those who disrupt the divine yajnas of solidarity and collective
effort for creative work and advancement. “Forces of power and justice, from
the light of heaven and wisdom of the sages, may seize the wicked and the
destroyers and punish them with the vajra of justice and correction, tempered
with help for peace and progress to enlighten the noble people dedicated to harmony
and happiness”.[13]
Indra, the commander of power and force, is asked
to sharpen vajra, his weapon of justice and punishment for the
crafty saboteurs on the lurk and strike the fatal bl0w. “His power throws off
the saboteurs who damage the social and cultural system of peace and progress
of the human community. He is mighty powerful like what the axe is for the
wood, breaking down the evil and wicked destroyers like pots of clay whenever
they raise their head”.[14]
The concluding verse of the hymn calls for united
action to decimate the wicked enemy. “We should crush the evil and the wicked
like pieces of clay with a stone. They are covert, stealthy, clever, jealous
and growling, cruel, cunning and voracious destroyers. Let not wicked demonic
forces harm and destroy us. Repulse the darkness of oppressors harming us
either by joint force or by sowing dissension. May the earth protect us against
earthly sin and crime. Let the sky protect us against dangers from above. We
should stay awake and watch everything that happens and strike the sinful
destroyers, and shoot the vajra upon the covert saboteurs”.[15]
These numerous references
to punishment in the Vedas recognize the following fundamental elements of
punishment policy:
(a) a standard of morality of which any violation warrants punitive retribution;
(b) the possibility of its
violation which is considered as immoral;
(c) answerability for the
violation which determines the guilt of the accused;
(d) degrees of guilt as
determining the forms and severities of punishment; and
(e) authorized forms in
which punishments may justly be administered.
Righteous War
Mahabharata is replete with references to punishment
policy as forming an essential part of royal policy. There is never a doubt
entertained in Mahabharata as to the efficacy of punishment in creating and
maintaining social order. Its source is divine, its study and cultivation a
primary duty of the ruler, and its application by the ruler is to be guided and
controlled by definite principles. Prominent among these is the principle that
penal law is to be closely controlled by considerations of social good. Punishment
is divested of its character of mere afflictiveness and stands for the means of
ensuring the safety of society and individual. Its object is not to inflict
pain but to eradicate evil. From the Vedic days onwards the state stood
guarantee for social environment conducive for individual self-realisation.
Mahabharata considers dandaniti or
punishment policy as essential for the realisation of three objectives of
dharma, artha, and kama. Punishment
policy is based on wisdom and has emerged from the Sarasvati. With the use of
the punishment, this policy protects the worlds. It rewards dharma and punishes
adharma around the world. It is known as dandaniti or punishment policy and
the worlds follow it. In the extensive
corpus of learning in punishment policy, the means of protecting oneself
against aides, protecting oneself against rivals, the use of spies and other
methods and the use of secret agents are separately indicated. All the
techniques of sama, dana, danda, bheda and the fifth one of upeksha
are completely laid down. All the secret methods of creating dissension have
been described, and also when these secret methods may fail and recourse to war
will be necessary.[16]
To avert the
fratricidal war conciliation was used first to prevent dissension in the family
of the Kurus and ensure the welfare of the subjects. When peace was not
acceptable, through eloquence and counsel efforts were made to create disunity
among the kings so that a division could be created and the objective of
avoiding war could be achieved. Finally, an offer was made of giving up the
claim for entire kingdom in return for just five villages. When even this offer
for peace was not acceptable and Duryodhana was not willing to give up the
kingdom without a war, the last resort of punishment was chosen. The Pandavas
were left with no option except to do what was appropriate under the
circumstances.[17]
(i) The ruler shall
augment his resources and power in order to ensure the security of the state; (ii)
In case of conflict all resources and power are to be used to eliminate the
enemy; (iii) All states who help in the augmentation of power are friends; (iv)
a prudent course is to prefer peace and use war as a last resort; and (vi) state
policy in victory and in retreat must be balanced as the situation will never
be certain and strength will always be a determinant of security.[18]
While antecedents of
punishment policy can be traced to the Vedas, Mahabharata and Arthasatra, its
institutionalisation can be seen clearly in the Dharmasastra. Legal institutions
indicate a shift in emphasis from self-discipline to enforced discipline. Gradually,
the centre of gravity of conforming to the cosmic order moved from individual
duties to institutional handling of punishment policy as a major instrument of
justice. While self-discipline remained the bed rock of social order,
enforcement of punishment policy became necessary to deter violations.
There is diversity of views
between and within the Dharmasastra.
These apparent contradictions result from different meanings of Dharma in
different situations. The contextuality of Dharma makes it possible to prescribe
a series of different rules, for different places and times for the same
person. For instance, false evidence given by a witness can lead him to
darkness of hell.[21] Sometimes, false
evidence becomes a divine assertion.[22] Similarly, he who commits violence is regarded as the worst
offender,[23] but the one who strikes in the cause of right incurs no sin.[24] Also, one should forsake wealth and desires, if it violates Dharma, but even Dharma if it is inhumane or
may cause suffering in future.[25]
Dharmasastra is to be obeyed for the sake of human wellbeing not for its
own sake.
Smrtis, as the very name implies, are law-books written down
from memory, bringing together therein, in more intelligible language, and
within a smaller compass, all the teachings that lay scattered through the vast
literature of the Veda.[26]
Smrtis mark the second stage in the development of Hindu Law.
As the community expanded and inhabited diverse and remote tracts of the land.
This gave rise to a large number of Smrtis being compiled and
promulgated side by side in different parts of the country to suit the needs
and conditions of the several peoples. This may be one of the reasons for the
view held by later writers that all Smrtis are equally and universally
binding.[27]
Coming to the later Nibandhas or Digests, we find that
these also bear ample testimony to the spirit of selection and adaptability.
They are quite free in admitting or rejecting the authority of the original
Smirti, or even Shruti texts; when they do not find a certain text suitable to
their theme, they try to explain it away in various ways.
Thus, Dharmasastra is thus not a closed discourse
that has no place for correction, adaptation, or innovation on contextual and
rational basis. Rather, openness, creativity and an adaptive response to
emergent social problems and circumstances is built into the very structure of
not only Dharmasastra but also Arthasastra and Nitisastra. Multiplicity and
contingent nature of views expressed in different Dharmashastras helped
contextual application of plurality-conscious universalistic principles. The
Dharmasastras are essentially "rules of interdependence"
founded on diversity and unity corresponding to the nature of things and necessary
for the maintenance of the cosmic and social order.[35]
Institutionalisation of punishment policy, especially that relating to legal procedure, advanced dramatically during the period of the Gupta empire. This period appears to have been a golden age of institutionalisation of punishment policy. From the many texts that may have been produced during this time, only two are preserved in the manuscript tradition, those ascribed to Yajnavalkya and Narada. Only fragments of the t wo other major texts, those of Brihaspati and Katyayana, which also demonstrate clear advances in legal thought especially with respect to legal procedure, are available in the form of citations in medieval legal digests. In spite of the advances made by these authors, they remained indebted to the two scholars who lived several centuries before them: Kautilya and Manu. Many of the texts produced during the Gupta period can be viewed as commentaries on and developments of their legal thought.
The
king’s role remains central in all aspects of institutionalisation of
punishment policy. He approves and
notifies the Constitution of the Court, Rules of Evidence, Gradation of law
Courts, Validity of Law Suits, People qualified to be Witnesses, Testimony of
Witnesses; Assessing the Testimony; False Witnesses; Documentary Evidence;
Principles of Jurisprudence; Delay in Court proceedings; Judicial examination;
Verdict; Assessment of Evidence; Lawsuits Without Witnesses; Wrong behaviour on
the part of Witnesses; Swearing in of Witnesses; Prayashchit; Confession.
The prevalence of a variety of courts at various
levels was the distinctive feature of the ancient Indian legal system, matching
diversity and flexibility in the source of law. There was bifurcation between
courts which decided vyaavahaarika (civil) disputes and aparaadhika (criminal)
disputes. Those which are omitted in the lists are covered under the title
prakirnaka (miscellaneous). All the matters were to be decided in accordance
with dharma (law) and local customs and usages. The king’s orders not in conflict
with dharma can also be a source.
There was a hierarchy of courts as follows: The
court presided by the king was the highest court. There were also courts
appointed (adhikrita) by the king, presided by the chief justice (pradvivaka).
Next to them came in the descending order gana (assembly), shreni (corporation)
and kula (family councils). The Brihaspatismriti classifies courts as shaasita
(where the king himself presided), mudrita (appointed by the king and using the
king’s seal), apratishtitha (circuit court) and pratisthita (established in
village or town).
According to Smritichandrika, a commentary
on the Manusmriti, the kula should consist of impartial persons belonging to
the family or caste of the litigants, functioning (like a present-day
panchayat) to decide disputes amongst the persons belonging to the same family
or caste; shreni should consist of a guild or corporation of persons following
the same craft, profession or trade; and gana or puga should be an assembly of
persons belonging to the same dwelling place but might be belonging to
different castes or following different avocations. [37]
In addition, there were practices of resolving
disputes through arbitrators or madhyasthas. The Smritis of Manu, Narada and
Brihaspati suggest that disputes regarding landed property or boundaries should
be decided by neighbours, the inhabitants of the town or village, the other
members of the same community and the senior inhabitants of the district.
According to the Naradasmriti , “In disputes among merchants, artisans or the
like persons and in disputes concerning persons subsisting by agriculture or as
dyers, it is impossible for outsiders to pass a sentence and the passing of the
sentence must, therefore, be entrusted to persons acquainted with such matters
in a cause of this sort”.[38]
The family, the guild, and the corporation, fully
approved of by the king, decided most of the cases concerning their members,
other than those cases relating to grave crimes. Any matter, not coming within
the purview of the knowledge of the family guild, or corporation, was to be
finally decided by the supervisors, appointed by the king. They were superior
in power to the family etc. and the judge superseded the supervisors. Of the
family, the guild, the corporation, the supervisors, the judge and the king, the
next ones are successively higher in judicial authority than the preceding
ones.
Regarding jurisdiction the position was that kula,
shreni and gana could decide all disputes except those falling under saahasa.
They had no power of imposing corporal punishments and fines. The appellate
jurisdiction of gana over shreni and shreni over kula was recognised. The king
was the highest court of appeal and his decision was final.
All the courts were collegiate in their
functioning. While the king was recognised as a fountain of justice, the
Smritis had prohibited him from acting alone in the task of the administration
of justice. The collegiate character of the king’s court is explicit from
Brihaspati ’s verse to the effect that king (raja), chief justice (pradvivaka)
and judges (sabhyas) are the judicial officers. Shastras contemplated that the
king should adjudicate in consultation with the chief justice and puisne
judges, although personally responsible for his decision. There was a right of
appeal to the king as the last resort.61 According to the Naradasmriti , the
king should act in accordance with the opinion of the chief justice.
The villagers had a judicial system of their own
at once familiar to and respected by them; the various traders and guilds had a
similar system. The presiding officer of the popular courts or guild courts had
office either by election or inheritance according to local custom. With him
were associated three or five men. In these apparently private courts were
settled the affairs of the everyday life. In case of grave crimes or when the
condemned party refused to obey the judgment of the local court, the court of
the king was concerned with litigation.
Another dimension of the collegiate decision
making is the participation of experts in assessing the disputed question of
facts. Vyasa has observed that in case of disputes among traders, craftsman,
artisans and artists, it is difficult for the courts to arrive at correct
decisions in view of the technical problems involved. Hence, experts in the
concerned field should be taken as assessors for deciding disputed questions of
fact. The Katyayanasmriti states that a few merchants belonging to a guild, who
come from good families, bear good character and conduct, who are well advanced
in age and free from malice, should be appointed to assist the court in
deciding the disputes.
Rule of Law
Manusmriti considers punishment
policy to be a tremendous force for discipline, hard to be controlled by
persons with undisciplined minds, it destroys the King who has swerved from
duty, along with his relatives. Then it will afflict his fortress and kingdom,
the world along with movable and immovable things, as also the sages and the
gods inhabiting the heavenly regions. Therefore punishment shall be given
appropriately to men who act unlawfully, after having carefully considered the
time and place, as also the strength and learning of the accused. When meted
out properly after due investigation, punishment makes all people disciplined
and happy; but when meted out without due investigation, it destroys all things.[39]
Punishment policy cannot
be justly administered by one whose mind is not disciplined, or who is addicted
to sensual objects, or who is demented, or who is avaricious, or whose mind is
not disciplined, or who is addicted to sensual objects. Discipline can be administered
by one who is pure, who is true to his word, who acts according to the Law, who
has good assistants and is wise. The King who metes out punishment in the proper
manner prospers in respect of his three aims of virtue, wealth, and pleasure;
he who is blinded by affection, unfair, or mean is destroyed by that same
punishment.[40]
Among the factors to be considered while inflicting punishment the caste
of the offender, knowledge of the offender, his financial condition, age,
place, time, and the value of the damage caused were included. All the
considerations were collectively taken into account while deciding on
punishment.
For instance, the punishment for theft committed by a knowledgeable
Sudra was generally eight times the value of the thing stolen and it increased
twice for the learned members of the successive higher varnas. Manusmriti says
that it becomes increased sixteen times, thirty-two time and sicty four times
in case of a Vaisya, a Ksatriya and a Brahamana offender respectively. The
punishment could go up to one hundred times or one hundred twenty-eight times
in case of the theft having been committed by a Brahaman who knows the
unrighteousness of his actions. Thus commission of an offence by brahmana who
is fully aware of the unlawful character of the act becomes a reason for the
enhancement of his punishment.
Freedom through Law
In the Vedic tradition, creation of order in
society facilitates the creation of freedom for the individual. Instead of
making autonomy as the foundation of social life, Indian tradition makes order
as the foundation of social and individual life. The concept of punishment is
inherent in the rules that establish order and hold the society and state
together. No punishment, no society, no society no state. Punishment policy is based
on rules that integrate the individual, family, society and state.
In the dharmasastra
the existence of conflicts, disunions, rivalry and factional spirit is considered
to be the greatest of all dangers to social cohesion and individual freedom. The
bond of civil society is torn asunder when the moral system is disrupted. Hence
the greatest political offender and the most criminal sinner is he who by his
conduct promotes the breach between those who should normally live in amity and
peace. The general violence of criminal activity is seen in dharmasastra the
most insidious threat to the order of law.
Select
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[1] Positive
Background, p.7
[2] ibid. p.15.
[3] Radhakrishnan,
p.203
[4] RV, 1.164.4-5.
[5] Tagore, 113).
[6] Menski, p.90
[7] Nikhilananda, p.
221.
[8] RV 7/104, 1-3.
[11] Ibid. 7/104,
9-10
[12] Ibid. 7/104, 15-16
[13] Ibid. 7/104, 18-19
[14] Ibid. 7/104, 20-22
[15] Ibid. 7/104, 23-25
[16] MB 12.59-77.
[17] MB,
3.150.
[18] Arthasastra,
6.2
[19] Kane, I, 304.
[20] Ibid., I, 306
[21] Manusmriti 8.94.
[22] Ibid., 8.103.
[23] Ibid. 8.345
[24] Ibid. 8.349.
[25] Ibid. 4.176
[26] Jha, p.3.
[31] Manusmriti, 12.106.
[32] Brihaspatismrti, 2.12.
[33] Naradasmriti, 1.40.
[34] Arthasastra, 3. 1.45.
[35] Ibid. p.216.
[36] Naradsmriti, 1.8.
[37] Courts of India, p.37.
[38] Ibid.
[39] Manusmriti, 7.29.
[40] Ibid. 7.30.
[41]Manusmriti, 8.126-131.
[42] Ibid. 12.100-2
[43] Ibid. 12.103
[44] Ibid. 12.105-6
[45] Manusmriti,
11.251
[46] Brihspatismriti,
20.15.
[47] Sukraniti, p. 40.
[48] ibid.
p. 131.
[49] Sarkar, Political Institutions, p. 197
[50] Sarkar, Basic Ideas, p. 513-14
[51] Mausmriti,
7.28-29
[52] Ibid. 7.30.
[53] Sarkar, Political Institutions, p.203
