15 Decision

CHAPTER XV

DECISION

The last (i. e. 4th) stage in a judicial proceeding is siddhi (Yaj. II. 8) or nirṇaya ( decision). If pratyākalita (as defined above on p. 298) is regarded as a pāda of vyavahāra (and since all are agreed that there are only four pādas) then the decision is not a pūda of a lawsuit but is the fruit thereof (V. P. p. 86). When the evidence has been led, the king (or chief justice ) should with the help of the sabhyas decide upon the success or failure of the plaintiff594, Nar. II. 42 says that the sabhyas should ask the parties to leave the court when they are considering their verdict or what decision was to be pronounced 5%. It is stated by Vyāsa and Sukra IV. 5. 271 that the decision of a case is based on eight sourceg 596 ( 6 acc. to Sukra) viz. the three pramāṇas (possession, documents and witnesses ), logical inference, the usages of the country, sapathas (oaths and ordeals), the king’s edict and the admission of the litigants. Pitāmaka prescribes that, in disputes where there are no witnesses, no possession nor documents and no recourse can be had to divine proof, there the king is the final deciding factor as he is the lord of all 597

It is stated by Nārada II. 41 and 43 that, whether a party is defeated by his own admission or by his own conduct ( i. e. because he adduces false witnesses or forged documents) or

594. rator FTHTFUIRAT 1691 | Tiny #* fulcat . Otr3797 FUETT q. by Fry, II. 120, T. f. III. p. 199.

595. Dr. Jolly (S. B. E. vol. 33 p, 35) is aot right when he translates Nār. II. 42 as .wbenever the false assertions have been removed the judges shall pass a decree’. He has not also correctly rendered the com, of Asahāya. There is no word for ‘assertions’in Nār. II. 42 OTTO ***

TURQuoi on which the comment of Asahāya is: var folgate भवति लमस्तदा वाविप्रतिवादिनोः पक्षः सस्त क्षणसम्मायमानकैः सह वापप्पुत्सार्य सम्प निर्णयः कार्य।

596. Saltar a: Tua TTTT ITT HAFATIT faoletserru: Fa: a mr# in tea. Th. p. 138, 17. 9. p. 86. gxafa IV. 5. 271 (reads eft: ).

g# apparently regards sargs as one,

597. लेख्यं यत्रमपित नतिर्न साक्षिणामपदिग्यावतारोस्ति प्रमाण तत्र पाधि । निशेतुं ये न शक्या स्थुर्वादा: सन्दिग्धमपिणः । तेषां सपा प्रमाणे स्पारस FIFT : ART q. by w II. 26, TT. AT. III. p. 93, PETCATE p. 43, 4TH.

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[Voi.

whether he is defeated after full trial and the adducing of proof, it is proper that the defeat should be declared by the sabhyas ( the judges) and that a Jayapatra (a document of success i.e. a judgment) should be given to the successful party couched in fitting terms. Several verses of Narada (quoted by Aparārka p.684), Brhaspati (S.B.E. vol. 33 p. 307 verse 19), Kat. (259-265), Vrddha-Vasistha (q. by Mit. on Yaj. II. 91 and Apararka. p. 684) and Vyasa. (Sm. C. II. p. 57 ) lay down the contents of the judgment 598. It was to contain a brief statement of the plaint, the reply, the evidence, the depositions of witnesses, discussion thereof, arguments, the smrti texts applicable, the opinion of the sabhyas, the decision and the relief granted, and should be signed by the chief justice and bear the royal seal. Vas. 19. 10 refers to precedents also in the decision of cases and the award ing of punishments (agamad-drstāntac-ca ). The Mit. quotes a smrti text (on Yaj. II. 91) that other members of the assembly ( who are not judges ) proficient in smrti may also sign the judgment to show that the decision is acceptable to them also, But this was not absolutely necessary, as is made clear by the Vivādacandra p. 146. Kāt. ( 256 ) applies the word pascātkāra 599 ( refutation) to a judgment containing the above particulars given after a complete contest, while he restricts the word jayapatra to a document (given by the judge ) when a plaintiff becomes what is called hinavādi (because he makes a change in his pleading or for similar cause ) and when there has been no complete trial of an action; and such a document embodies only what happened. Kaut. (III. 19) appears to employ the word ‘pascatkara’ in a somewhat different sense when he says ’the

598. सकलं पूर्वपाद च सोतर सक्रियं तथा । सावधारणकं चैव तज्ज्ञेयं जयपत्रकम् ॥ नारद (q. by अपरार्क p. 684); यथोपन्यस्तसाध्यार्थसंयुक्तं सोत्तरक्रियम् । सावधारणकं जैव जयपत्रकमिष्यते ॥ प्राविधाकाविहस्ताई मुदितं राजसत्या सिद्धड वादिने दयाज. यिने जयपत्रकम् ॥ वृद्धवसिष्ठ q. by मिता. on या. II. 91 and अपरार्क p. 684; पूर्वोत्तर क्रियापाद प्रमाण वत्परीक्षणम् । निगद स्मृतिवाक्यं च पथासम्यं विनिश्चितम् । एतत्सर्व समा. सेन जयपत्रेऽभिलेखयेत् ॥ व्यास q. by स्मृतिच. II. 57: पूर्वोत्तरक्रियायुक्त निर्णयान्त पदा सुपः । प्रदयाजपिने लेख्यं जयपत्र रयते॥ वृह. q. by य. मा. p. 309; सभासदश्व ये तत्र स्मृतिशाम्रषिदः स्थिताः । यथा लेख्पषिधी तत् स्वहस्तं तत्र दापयेत् ।। कात्या. (263) q. by स्सविच. II. p. 57, मिता. on था. II.91 (without name). ‘जयपत्रे सम्य प्रारविषाकभूपत्तिसंमतिरेव प्रयोजिका न तु यावत्पण्डितस्वहस्तापि’ विषादचन्द्र p.146. Compare Order 20 r. 4 of the Indian Civil Procedure code for the contents of the judgment. .. .

5998, मिरसास्त क्रिया या प्रमाणे पाविना। पक्षात्कारो भवेतन साह विधी. यते। अम्बावाविहीमेश्य. इतरेषां प्रदीयते । वृत्तावादससिद तथ स्पाजयपत्रकम् ॥ कास्था. q. by स्मतिय. II. 57-58, परा मा. III. 124-125, ग्य. प्र. p. 146. For viagret vide above p. 303.

j

Sanskrit jayapatras

381

person, who, when charged with murder, does not reply to the charge that very day, stands refuted’ (i. e, is found guilty ) 600 The Mit. (on Yaj. II. 91 ) differing from Kat holds a jayapatra to be a judgment giving a summary of the plaint, the reply, the evidence and the decision, while when a plaintiff is defea ted for change of pleading or for default of appearance or for non-prosecution the document stating this is called ‘hinapatraka’. It is to be regretted that ancient jayapatras in Sanskrit have not yet been discovered. In 25 Calcutta Weekly Notes pp. CXLII-III Dr. Jolly communicated the substance of a jayapatra, couched in ancient Javanese, engraved on a copper plate found in the island of Java and described by Dr. Brandes in a Dutch paper. That judgment is dated sake 849 (928 A.D.), relates to a dispute about a debt of one suvarṇa in which the plaintiff failed because he did not appear at the trial. At the end there are the signatures of four witnesses and the document is styled jayapatra at the end. Vide for the same jayapatra J. B. O, R. S. vol. VII pp. 117 ff. The late Mr. K. P. Jayaswal published in 24 Calcutta Weekly Notes (pp. CXLIX-CLVI) a jayapatra (text, translation and remarks) granted by the Hindu court of Mithilā in sake 1716 (1794 A, D.) and in J. B. O, R. S. vol. VI pp. 246-258, which strictly conforms to the rules of procedure laid down in the smrtis and nibandhas and is couched in dignified, technical and scrupulously formal language. It related to the ownership of a slave girl. Plaintiff at first made default in appearance; the judgment notes this and also refers to the restoration of the suit. The defendant raised an objection that a single witness to prove a matter was inadmissible. This objection was upheld. Then plaintiff prayed that he might be allowed to undergo an ordeal, but this request was disallowed as human proof was possible and plaintiff ultimately lost his suit. The judgment is written and signed by one Sacala miśra, who was the chief justice, and is addressed to other members of the sabhā, called dharmādhyakṣas and panditas, seven of whom express their concurrence (sammati) at the top of the document. Vide Journal of the Bihar and Orissa Research Society vol. XXVIII for 1942 for nine Sanskrit jayapatras from the courts of Mithilā in the 18th and 19th centuries.

The Mit. (on Yāj II. 91), and V. Mātrkā , p. 309 note that a jayapatra is given specially to prevent the same matter being

600. armanfguraria HAETT: I meeg. III. 19.382

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agitated again, while a document given where a party is hinavadi (i, e. a Ninapatraka) serves the purpose of making that party liable later on to pay a fine. When a dispute was decided by a domestic tribunal (kula &c.) there was no jayapatra but only & nirṇaya-patra ( kuladibhir nirguye jayapatrabhāvān-nirṇaya ptram tatra kāryam parattapatramiti yāvat, as the Vy. Nirnaya p. 85 says). It would be better to adopt the reading ‘vrttapatram’ as given by one Ms.

The defeated party has to pay a fine to the king and the successful party was complimented (or honoured) by the king (or chief justice) and was to be put in possession of the matter that he succeeded in proving 601 Manu VIII. 51 prescribes that in monetary matters (i. e, in civil disputes) the defeated party should be made by the king to pay the judgment debt to the successful party and also some fine to the king according to his ability, while Manu VIII. 139 lays down that when the defendant admits in the court his liability he has to pay to the king five per cent as fine and if the defendant denied his liabi lity altogether and was proved to be false he had to pay as fine double of that (i. e. ten per cent). This is analogous to court fee, for which see above pp. 294–295. If one or both parties had laid down a stake or wager (viz. ‘if I be defeated in this Bult I shall pay a hundred paṇas’) then he had to pay that stake to the king and a fine as above and the subject of dispute to the successful party (Yāj. II. 18 and Nār. II. 5) 602; compare Vispu Dh. S. V. 153-159 for similar rules. The punishments awarded in criminal matters will be discussed

immediately below. . It would be necessary to see in what cases review of judg ment was allowed. The general rule is stated by Manu IX. 233, ‘whenever any legal proceeding has been completed (tirita) or has been carried out so far as to recover a fine from the defeated party, a wise king shall not annul it’ (at his mere will or pleasure or through greed). The words ’tirita’ and

601. सिद्धनार्थेन संयोज्यो वादी सत्कारपूर्वकम् । लेण्यं स्वहस्तसंयुक्त तस्मै दयाक्ष offoc: ti nar. q. by ra. II. p. 57, . 684, #f. p. 220. The ATTI (194. ms.) explains’ fare per arrewaai hot 4* F * सदभिवृद्धिसहित दापनीयम् ।’

*602. पिपादे सोसरपणे श्योर्यतत्रहीयते । स हि पण दाप्यो विनयं पराजये। IEEE II. 3.

III)

Meaning of Tirita and Anusista

383

anusista’ have been variously explained 603. The word ’tirita’ is very ancient and occurs in the Delhi Pillar Edict IV of Asoka (E. I. Vol. II. p. 253 ) as ’tilita-dandānam’ qualifying men imprisoned in jails. Medhātithi and Kullūka explain them as

decided according to the rules of the śāstra’ and ’taken so far as to recover fine from the unsuccessful party’ respectively. Kāt. (495) defines them differently: “When a certain side is decided by the sabhyas themselves (without the examination of witnesses ) to be either true or false, it is said to be tirita and that matter or side is called ‘anusista’ which is declared (to be true or false) on the testimony of witnesses.” The lexcion called Vaijayanti seems to have Kāt. in mind and defines ’tirita’ as a perverse decision given by the sabhyas themselves and ‘anusista ‘occurs where the evidence of witnesses makes what is true appear as false ( Bhūmikānda, vaiśyādhyāya, verses 11-12). Nār. II. 65 (S. B. E, vot 33 p. 22 ) employs the two words, which the Mit. on Yaj. II. 306 respectively explains as (tirita) ’ decided by reliance on documents and witnesses but not carried so far as to recover a fine’, and (*anuśiṣṭa’) as decided so far as to recover a fine from the defeated party’. Vide Apararka p. 866 and V. P. p. 90 for explanations.

According to Kāt. quoted in the Vyavahārasāra (p. 101 ) 604 the decree should provide for the successful party receiving the interest on or accretions to the movable or immovable pro perty placed (during the pendency of the suit) in the hands of a third party (as a sort of Receiver). Kāt, (477-480) points 605 out the various ways in which a decree may be executed. The king should make a brāhmaṇa debtor return the decretal debt

603. airtai antara fara saha TTT I … staiste rūkuda!

Tu* 7 tirane i 14.4. D. 90; air FAE wafflet enfin ! agar Of. II, 306; ainda Farroa rautintaja Wa I BET IR vi HTG ( . ms); vā trao thư IETTI 8 đ 1 BỆg. मधो लेखो लेख्य दिव्य त दैविकम् । वैजयन्तीकोश.

604. ATTFRUTICH TE TUTE THAT I ATITV Ta sita TYETTET I 1997. 1a &ICHIT P. 101. This is ascribed to any in fine. II. p. 120, and a which reads Are Unite and i9 797 and explains ‘#*TEOTIH PATTS #1474Fundar’.

605. a ani a fait Taastruttorial yar Hai grūn # RAUA SI narra i aros fuifo ferrocarrier after भूः धमदामासह पदधा स्वाधीनं कर्म कारयेत् । भाको बन्धनागारं प्रवेश्यो मानणाहते।

TR 1 Fitjater ac i 4. q. by FARTT OD or II. 40 and 26, TV p. 645, n. II. pp. 121, 124, YT, AT. III. 200 and 209.

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to the judgment creditor by conciliatory words, should make other debtors return it according to the usage of the country and compel bad people to satisfy the decree by means of phy sical pain (i. e. imprisonment). The king should make a co sharer or friend (of the successful party ) pay the deoretal debt by means of a ruse (i. e. by borrowing an ornament or the like from him on a festive occasion and handing it over to the creditor) and also make traders, husbandmen and artisans (to pay) in a similar way. On finding that the debtor is un able to return the debt in cash, the king should make the debtor, whether a ksatriya, vaisya, sūdra or husbandman, work (for the creditor). If he be unable to work the debtor should be sent to jail except when he is a brāhmaṇa. Manu also (IX. 229) says that if the members of the three varṇas other than brāli maṇa are unable to pay the fine imposed by the king they should be made to work for the king, but a brahmana may be allowed to pay in easy and small instalments. If a brāhmaṇa debtor was unable to pay, nothing could be done for recovery of the decretal debt except taking a surety from him if any one cared to be one. In modern times also judgment debtors are liable to be arrested and detained in civil jail in execution of decrees under rules 55-58 of the Indian Civil Procedure code (except women in execution of a decree for the payment of money). If in ancient times state policy exempted brāhmaṇas from arrest and detention in a civil jail for monetary debts on spiritual grounds and on the ground of caste, in modern times the State in Indra exempts agriculturists from arrest ar imprisonment in execution of a decree for money on economic grounds under certain legislative enactments like sec. 21 of the Deccan Agri culturists Relief Act (Bombay Act XVII of 1879). As regards women also Kat. ( 488-489) laid down certain prudent rules: “Women who are not 606 independent should not be arrested (for offences like adultery); it is the male who should be regarded as the offender; women should be punished by their lord (i, e. the person on whom they depend) but the king should take away for punishment the male offender. Even if a woman whose husband has gone abroad be consigned to jail she should be kept imprisoned only till he returns.” The Sm. O. II. p. 323 explains that the first verse applies to a woman who can perform the

606. PUTTA: Prat ut: gateur

r way # STITHFUTTAAT SI ATOA TOR

q. by . II. p. 323.

PE

I

Agory FRAICRATT CIUTI

TYR Putet -

II)

Review of judgment

385

expiation for adultery and who is dependent and the adultery is not with a male of a lower caste.

Nār. (II. 40) lays down 607 a qualification that when a party has been defeated by his own conduct (ie, by his demeanour or by his having adduced manifestly false witnesses or forged documents) there is to be no retrial or review of judgment, but where a man has lost his cause through (the dishonesty of) witnesses or the sabhyas, the cause may be tried anew. There are four exceptions to the finality of the judgments of the king’s court. Where a litigant either through folly or insolence Gos thinks a decision to be wrong, he may be allowed a retrial, provided he agrees to pay double the fine inflicted on the losing party (Yaj. II. 306, Nār. I. 65, Kāt. 496). Secondly, where the former judgment is obtained by fraud or force, it may be set aside (Yāj. II. 31) 609, Thirdly, where the litigant was incompetent, i.e. was a woman or a minor or a lunatic or intoxicated, seriously ill or distressed by a calamity or where the proceeding was carried on by another on behalf of a litigant who did not appoint him or with whom he was not connected in any way or was held inside a house or outside a town or village (i. e, in a forest) or by an enemy, the decision may be set aside and a retrial ordered (Nar. I. 43 in S. B. E. vol. 33 p. 16, Yāj. II. 31-32). Fourthly, a king could set right a former decision of his predecessor which was unjust and arrived at through ignorance (Mit. on Yaj, II. 806 ) 610.

Yaj. ( II. 4 and 303 ) prescribes that legal proceedings that are suspected to have been wrongly decided by the sabhyas through partiality or greed or intimidation should again be tried by the king and if the suspicion turns out to be true he should levy from the sabhyas and the party who at first succeeded double the fine that is imposed on a defeated party. Nar. 1. 66 (in 8. B. E. vol. 33 p. 22) is similar. Manu IX. 231 ( = Matsya 227. 158 )

607. Fea rnt apot alat ga: 1 auginant a muita gente Riu # FIG II. 40.

608. aa aamist aa rauha: pari PEATUIT T7910 gram पचरेत् । भारत 1,65: कुलादिभिनिश्चिवेपि सन्तोष न गवस्त पा। रिचार्य तरकत राजा

HOTEL UTT. And rear* g. by 14. X. p. 91. 609. PITIURTAT PETTI adet . II, 31.

610. grerat qua TNI764 i recurangeres garata for PTV a q. by TANT, OR 97. II, 306, 77. T. III. p. 582. This is mICE,

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and 234 prescribe that when officers appointed to administer justice cause loss to litigants by taking bribes, the king should deprive them of all their wealth and when the amatyas (ministers ) or chief justice disposes of a matter wrongly (but without being bribed ), the king should himself decide the matter correctly and should impose on the amātyas or chief justice a fine of 1000 panas.

Though there is hardly any express smrti text for the transfer of cases from one court or judge to another court or judge, in practice this must have been done, though rarely. In “Seleotions from Peshwa’s Daftar” vol. 43 p. 108 there is a letter (of 12-8-1764 A, D.) written by the renowned minister Nana Phadnis to the Peshwa Madhavrao in which the former endeavours to persuade the latter to cancel his order for transfer of a case from the court of Rāmsāstri, famed for his impartiali ty and strict life, to another judge on the ground that one of the litigants was afraid that Rāmsāstri showed some partiality to the other litigant. Manu (VIII. 174-175 ) states that the king who decides the causes of people unjustly through greed is soon subjugated by his enemies, while the king who curbing his own temper and desires impartially decides causes according to the dictates of śāstra becomes of one mind with his subjects as rivers merge in the ocean. Br. and Nār. I. 74 (S. B. E. vol. 33 p. 24) lay emphasis on both the secular and spiritual effects of doing even justice, saying that when the king gives decisions according to śāstra he spreads his fame in this world and secures Heaven 611

A crime may be defined as an act or omission that breaks the law and is subject to public punishment. But all kinds of breaches of the law do not result in punishment; only some do. Those breaches are crimes which are deemed to be menaces to the conditions of existence of society, which society, the ruler or legislation recognises as preventible only through punishment. The menace is not that of the specific action, but the abstract menace inherent in that type of action. A breach that is held to be a crime at one time may even be held not to be a crime at another time or in another country. For example, adultery is a crime under the Indian Penal Code (sec. 497), while it is not a crime but a civil wrong in English Law.

61. एवं शामोदितं राजा कुर्वनिर्णयपालनम् । वितस्येव पशो लोके महेन्मसधियो भवेत् ॥ साक्षिलेख्यानुमानेन प्रकुर्वकार्यनिर्णयम् । पितस्पेह पशो राजा नास्पामोति Eि.

#TF q. by FrII p. 123. . 1. III. p. 219.

HI)

Evolution of the idea of crimes

387

Many crimes and wrongs were sing and entailed secular punishments and also religious sanctions (viz. expiations, prāyascittas). Vide Manu IX, 236, 240, Bf. (S. B. E. vol. 33, P. 36%, verse 22 ) and Paithivasi quoted below 612 Maine in his * Ancient Law’ chap. X (3rd ed. of 1866 ) examines ancient Western systems like those of Greece and Rome and makes the generalisation (p. 370) that the ‘penal law of ancient communities is not the law of crimes; it is the law of wrongs or, to use the English technical word, of Torts. The person injured proceeds against the wrong-doer by an ordinary civil action and recovers compensation in the shape of money damages if he succeeds’. Dr. Priya Nath Sen in his Tagore Law Lectures on ‘Hindu Jurisprudence ‘(1918, Lecture XII) rightly points out that this generalisation is not applicable to Ancient Hindu Law. It has already been shown (on pp. 264–266 ) that the king could of his own motion take cognisance of many wrongs called chalas, padas and aparādhas and it is clear that in such crimes as theft, assault, adultery, rape, and manslaughter the smrti texts do not prescribe only a money compensation to the person wronged, but corporal punishment in the first instance and monetary compensation in addition. Vide for example, Manu VIII. 287, Yāj. IL 22%, Bṛ. (SBE Vol. 33 p. 358 verses 9-10), Kat. (787) which prescribe a punishment for causing pain to the body or the loss of a limb and also the expenses of curing the person injured and some solatium to him. 613 Āp. Dh. S. (1. 9. 24. 1 and 4) lays down that the slayer of a ksatriya should give a thousand cows in order to remove the enmity (i. e. as compensation to rela tives ) and one bull in addition for expiation.614 The Chandogya Upaniṣad quoted above (p. 362 ) shows that a thief was punished with death in those early days. There is a passage in the Tai.S. II.

612. statornat araba a feria i TursTTEET P at genera u dotari g. by pozrada p. 76.

613. देहेदियविनाशे तु पथा दण्ड प्रकल्पयेत् । तथा तुष्टिकरं देयं समुत्थामथ Giont: # FEROTII Tatarare figurat 1F71897. q. by far. II. p. 329, STTAR D. 816, #1. III. pp. 419-420; portrarnahe FZ11FTTKISTA: 1

u t STERLIST: HTF. q. by reset ET OR 97. II. 226. 614. f ear at HH acararū qurt i … **2151 ** argura: i 24. 4. I. 9. 24. 1 and 4. meer in order to bring Ap. in line with Mano XI, 127 and vaj. III. 266 explains that 1000 cows and one ball are all for explation.

a

388

(Vol.

6.10.1 ( quoted in H. of Dh. vol. II. p. 151 n. 346 ) which states, * He who threatens a brāhmana should be made to pay a hundr ed, he who strikes a brahmana should be made to pay a thousand’, It is rather doubtful whether the figures stated are fines or are meant as solatium to the wronged. In Rg. II. 32. 4 ( which also occurs in Tai. S. III. 3. 11. 5) the poet prays to Rākā 61s (the Full Moon personified) that she may be pleased to grant the boon of a valiant son, who would be satadāya’. Sayapa’s rendering of this word as ‘possessed of plentiful beritage or wealth’ appears to be the right one. The words ‘satadāyam viram ‘in the Tai, S. III. 3. 11. 5 are translated by Prof. Keith as *a hero whose wergild is a hundred’. This is incorrect, confound ing as it does the ideas of western Germanic tribes with the Rgveda composed several millenniums earlier. It would be a strange thing to pray to a goddess for a son and at the same time to have in mind or refer to the price set upon him if he happened to be killed.

The ancient smrti writers were quite aware of the several purposes served by punishments for crimes, 616 though they do pot develop a regular science of penology. The person wronged feels a great urge for revenge or retaliation and other men sympathise with that emotion. The individual, however, could not, in civilized societies, take the law into his own hands and therefore the State saw to it that the emotion for retaliation or revenge was to some degree satisfied by the adequate punishment of the wrongdoer. Yāj. II. 16 and Nār. I. 46 (SBE vol. 33 p. 17) state that when a person without complaining to the king sets about to secure what is denied by the opposite side or is doubtful he becomes liable to punishment and he also cannot secure the object he wants. 61662 In all ancient societies the lex talionis ( the law of retaliation, viz, an eye for an eye

615. TEATRE UTHM ego … era dit start E24 W . II. 32.4.

616. The work of Harry Elmer Barnes on ‘The Study of punishment (1930, New York) may be read with great interest and profit. It will set off to great advantage the comparatively bumane treatment of criminals in Ancient India as compared with the horrible and revolting methods for punishing criminals employed in the West.

616 . Starea si priprasu’ awth #fitas furch regret wart #pre I. 46.

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a tooth for a tooth ) prevailed, 617 Manu VIII. 280 ( which is almost the same as Nār., pāruṣya, verse 25), Yaj. II. 215, Vlṣṇu Dh. 8. V. 19 and Saṅkha-Likhita prescribe that with whatever limb 618 man of low caste offends against a brahmana, that very limb of his shall be cut off. Another and the most important purpose of punishment is deterrent. Punishment of the evil-doer serves as an example and a warning to all others that might be tempted to tread the paths of violence and crime. This aspect of punishment ( daṇda ) has already been dwelt upon in the section on rajadharma (p. 21 ). The end sought to be served by punishment was the protection of society and the securing of its happiness. The Sāntiparva (15.5-6) remarks that people do not commit sins through fear of punish ment at the hands of the king, through fear of Yama and of the next world and through fear of others (i. e, publio opinion ).619 Gaut. XI. 28 derives the word dança from the root dam to restrain or to deter. This purpose of punishment is well brought out in the Mșcchakatika (X) when the sentence passed on Cārudatta for the alleged murder of Vasantasenā is proclaimed to the citizens by the executioners, 620 Another purpose of punishment is preventive i. e, if a culprit is imprisoned for an offence he is prevented or disabled from repeating the same offence or

617. Vide Deut. XIX. 21, Lev, XXIV. 20 for the ancient Hebrew Code (eye for eye &c.), the code of Hammurabi (about 2200 B. C.) in Babylon and the law of the Twelve Tables in Rome. In the 8th Table in Ortolan’s History of Roman Law’ (tr, by Pritchard and Nasmyth, 1871 ) p. 114 the 2nd provision is: ‘retaliation against him who breaks the limb of another and does not offer compensation’. In Hammurabi’s Code (text tr. by C. H. W. Johns, 1903 ) sections 196 and 200 are: ‘If a man has caused the loss of a gentleman’s eye, bis eye one shall cause to be lost. If a man has made the tooth of a man that is his equal to fall, one shall make his tooth to fall out’,

618. a targu G T TIYH*T TIETaimptoma q. in प्य. म. p. 249%; येनामापरवों माझणस्थापराप्नुयात् । तदनं तस्य तम्यमे बुद्धि ATATIC # AMT (97669 25); fraquis ET TATTUTTW T ET ftria i Fager V. 19.

619. aureo 0197: One I haver art grafa परस्परमयादेके पापा पापं न कुर्वते । … दण्डस्येव भयादेवे मधुण्या पनि स्थिता: शान्ति 15. 5-6, Vide hity for almost the same words ( 225. 16–17).

620. IT STATE UTI … reftat i gan… T HAT RYTTET … तवा राज्ञा पालकन पपमाज्ञता एवं मारपितम् । पचपर यशसभपलोकपिवद्धमकार्य

tra T T TIO SPAS MITT I TO X after verse 11.

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committing further offences for some time at least and if he be sentenced to death or transported for life or banished, the commission of offences by him is prevented for his life-time. Another purpose was that of reform or redemption of the evil doer. The punishment was deemed to be a sort of expiation, which purged the man of sinful promptings and reformed his character. Manu VIII. 318 ( =Vas. 19. 45 ) states that men who are guilty of crimes and have been punished by the king go to heaven, becoming pure like those who perform meritorious deeds. Medhātithi remarks on this verse that this applies only where the punishment is corporal and not merely monetary. It will be seen from the early sūtras like that of Gautama and from the Manusmrti that the more ancient criminal law in India was very severe and drastic, but that from the times of Yājāavalkya, Nār. and Bṛ. the rigour of punishments was lessened and softened and fines came to be the ordinary punishments for many crimes, as is noted by Fa Hien (399-400 A, D.) in relation to middle India (Madhyadeśa) under the Guptas apparently: The king governs without decapitation or other corporal punishments. Criminals are simply fined, lightly or heavily according to the circumstances. Even in circumstances of repeated attempts at wicked rebellion they only have their right hands cut off’ (Legge, 1886 p. 43). This may be contrasted with the state of things depicted by Megasthenes 700 years earlier than Fa Hion: (Fragment XXVII p. 71) ‘a person bearing false witness suffers mutilation of his extremities. He who maims anyone not only suffers loss of the same limb but his hand also is cut off. If he causes an artisan to lose his hand and eye he is put to death’. The Dasakumāracarita (II. p.56) states that the Mauryas conferred a boon on traders that for certain offences they were not to be sentenced to death, but were to be deprived of all their wealth and banished. The first separate Rock Edict of Aśoka at Dhauli (Corpus I. I. pp. 93, 97 ) shows that great Emperor’s anxiety that his judicial officers should strive to see that there is no undeserved fettering or no undeserved harsh treatment. In India the list of capital offences at any time was much shorter than in the West. Stephens is constrained to admit that in England ’there can be no doubt that the legis lation of the 18th century in criminal matters was severe to the highest degree and destitute of any sort of principle or system’ (His. of Cr. Law, vol. I. p. 471). As stated by Dr. Hart (in ‘Way to justice’ p. 94), at the beginning of the 19th century in England more than a hundred offences were

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punishable by death. In 1832 a child was convicted at Lud gate Hill for stealing a box of paints worth two pence, was tried at the Old Bailey and hanged (vide ‘In the service of youth’, by Dr. J. M. Brew, 1943 chap. XV. p. 208).

Manu VIII. 129, Yāj. I. 367 and Br. (S. B. E. 33 p. 387 verse 5), Vṛddha-Hārita (7.195) speak of four methods of punishment ( dangla ) viz. by gentle admonition, by severe reproof, by fine and by corporal punishment and declare that these punishments may be inflicted separately or together according to the nature of the offence. 621 The first takes the form of saying you have not done a proper thing’, the 2nd ‘fie upon you who are a wrongdoer and guilty of adharma’. Br. lays down that preceptors, purohitas and sons should be sentenced to the punishment of wordy admonition, other persons who engage in disputes should be punished with reproof or fines and those guilty of mahāpatakas should be punished with corporal punishment. That admonition and reproof were two modes of punishment shows that ancient writers were alive to the notion that among very sensitive persons or in a very sensitive society verbal condemnation would be enough to achieve the main purposes of punishment. Bp. ( SBE vol. 33. p. 388 verse 8 ) states that the first two are within the privilege of the brāhmaṇa (appointed as chief justice) but fines and corporal punishment are to be inflicted by the king (on the recommendation of the chief justice, prūdvivākamate sthitaḥ ). The Mșcchakaṭika (IX) bears this out when the judge says ‘We have authority only to pronounce the judgment; as to the rest the king is the final authority (nirṇaye vayan pramānam śeṣe tu rūja). Gaut. XII. 51, Vas. 19.9, Manu VII. 16, VIIL 126 and Yaj. I. 368 (=Vfddha-Harita VII. 195–196), Bșhat Park sara p. 284, Kaut. IV. 10 lay down that the award of punishment must be regulated by a consideration of the motive and nature of the offence, the time and place, the strength, age, conduct (or duties), learning and monetary position of the offender and by the

621. The Daṇqaviveka of Vardhamana (published in Gaikwad Oriental series, 1931) deals exhaustively with the subject of punishments, a सम्यक समिति निन्दा, धिक वो पापीपासमधर्मकारिणमिति निर्भर्सनम् । दणाविवेक p. 20: these are respectively वाग्दण्ड and धिपक्षण सुसम्पुरोहितापुत्रान्वागवडेनेक दपेत् । विषादिनो मांश्चान्याग्विायमाग्यो पदण्डयद ॥ महापातकायुक्तांध पदणेन

Port TV. g. by lae. II. p. 126 and tour. f. p. 528.392

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fact whether the offence 622 is repeated. This provision means that the dharmaśāstras did not hold that the same punishment must be meted out for the same offence irrespective of the antecedents, characteristics or physical and mental condition of the offender. They always took extenuating circumstances into account. Kaut. (I. 4), differing from the view of the ācāryas that there is no thing like danda for bringing under one’s complete control all beings, gives his own opinion that, as a king whose control and punishments are most severe makes the subjects disgusted with him and as the king who deals mild punishments is disregarded by the people, the king should distribute punishments according to the deserts of the offenders and would then command respect. 623 One reason why some of the works on dharmaśāstra prescribe mild punishments is the doctrine of karmavipāka (a man committing certain sins is born in the next life afflicted with certain diseases or bodily deficiencies or is born as a low or filthy beast or bird). Vide Manu XI. 49-52, Yāj. III 207-216, Viṣṇu Dh. S. 44-45. This doctrine will be dealt with later on under pātaka and prāyaścitta. Gaut. XII. 48 first provides that the king must take into account, when awarding punishment to the criminal, his physical or monetary circumstances, the nature of the crime, the fact of repetition of the crime and then adds that the king should award punishment after consulting an assembly of learned brāhmaṇas. The Dandaviveka (p. 36 ) quotes a verse in which the considerations that should weigh in award ing punishment are brought together viz. the offender’s caste (as in Manu VIII. 337-338 for theft), the value of the thing, the extent or measure (as in Manu VIII. 320), use or usefulness of the thing with regard to which an offence is committed (as in Manu VIII.285), the person against whom an offence is committed (such as an idol or temple or king or brāhmaṇa), age, ability to pay),

622. पुरुष चापराचं कारणं गुरुलापषम् । अनुषन्ध तदात्वं देशकालो समीक्ष्य

TEATTIAUTEU na premiator or patai m erfra: 7. IV. 10; TT eru frattururhuRATEN : F I 19.9; *RÅrgapufararefrein: 1 tri ar a

RF Fra 1. XII. 48-49; wa UTRETTO Oreret erat i FNTT TA quang m au Hy 8. 126, oa wbich Aumaid makes the striking remark that this is the fundamental verse about all offences mama TUI मातृकाश्लोकोयम् । एतदर्यासारण सर्पदण्डक्लातित कर्वप्पा.’

623, mint

a mikor at ut proprio siasat i वीणोहितामाहदेजनीया माव: परिपते । पयार्थदण्या पूज्य: । उविज्ञास pomat e T AWT WANITA

UNTE I. 4. Vide MADU VIL. 103 (Sāati 140. 8) which appears to be of the same opinion as the acāryas,

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Fines.

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qualities, time, place, the nature of the offence (whether it is repeated or is a first offence). The Rājatarangini (VIII. 158.) provides that in disputes where parties are in doubt as to their rights it is proper to award punishment with forbearance but where a man starts on an evil path of set purpose ( the king and officers) must award severe punishment. In modern times there are controversies among several schools of criminology. Some hold that every man has freedom to act criminally or not or to act in the way he does and that each man has complete moral responsibility for his own’acts. On the other hand there are some who go to the other extreme and propound that a so-called criminal act is mostly due to biological, physiological, patho logical or sociological conditions, to the upbringing and environment of the person charged with crime. They favour determinism. The ancient Indian writers do not enter into these speculations. But when they said that regard must be paid to time and place and other considerations they were faintly conscious of or were groping towards the ideas of the 2nd school.

Fines are either fixed or not fixed (i.. variable). They range from a kākini to the confiscation of all wealth ; fixed fines were of three kinds called prathama sāhasa, madhyama sāhasa (middling amercement) and uttama sāhasa (bighest). These are Variously defined. According to Saṅkha-Likbita the first 624 amercement is fine from 24 panas to 91, the middling one is from 200 to 500 panas and the highest is from six hundred to 1000

624. care tratamera: FURIEF: 1 fatta a HEAFTE: I TER FE# TITTA: TUTFITTOSITFITFIT q. by re. T. p. 664, gerai p. 23.

There was great divergence of views about the metal in which the fines were to be paid. According to Vijñānesvara the figures of fines in such verses as Manu VIII. 378 (where no metal is specified ) the panas are those of copper, wbile according to Bharuchi ( quoted in S. V, p. 150 ) they are of gold. The S. V, remarks that local usage is to be followed, The V. Mayūkha (p. 255 ) states that in all texts (about fiaes) the mention of a number without specifying the object to which it refers is to be deemed to refer to panas, that pana is a copper piece one karsa in weight and that karsa is one fourth of a pala. Br. ‘(q. by Sm. C. II. p. 99) states that the tables in Manu (VIII. 132-136) beginning with the dust particle in a beam and ending with kārsāpana is to be followed in ordeals and fines. An interesting sidelight is shed on crimes and their punishments in the In scription of Calukya Vikramaditya V (dated saka 934) from Gadag which provides that the fines’ for abuse, assault, for drawing out a dagger, for stabbing and for adultery by a bachelor were respectively 2 pagas, 12 panas, 3 gadyāṇas, 12 gadyānas and 3 gadyānas (vide. E. I. vol. 20 p. 64.)

of a pala.

per piece one karses to be deemed

50

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in proportion to the value of the matter in dispute or the injury caused. Manu VIIL 138 ( =Viṣṇu Dh. S. IV. 10) states that the first, middling and highest fines are respectively 250, 500 and 1000 panas, while Yāj. I. 366 puts these respectively at 270, 540 and 1080. The Mit. explains that the lesser figures of Manu re present the fines to be awarded for offences committed without set purpose. Nār. ( sābasa, verses 7-8) prescribes that 100 paṇas is the lowest limit of fines for the lowest kind of sāhasa, 500 is the lowest for middling sāhasa, 1000 is the lowest fine in what is called the highest amercement (and might include death penalty, forfeiture of all property, banishment, branding and cutting off of a limb). Fines were supposed to be lesser than corporal punishment. Kat. ( 490-493 ) lays 625 down the follow ing rules : Whatever figure of fine is prescribed in the smrti texts for a wrong it is to be paid to the king in papas of copper or their equivalent. Where the fine is said to be one-fourth or one half of a māṣa, there it is a golden māṣa that is meant; when the fine is declared in māṣas, they are to be understood as those of silver and where the fine is declared in kļṣṇalas the same is to be understood; a māsa is myth of a kārṣāpaṇa.’ The general rule that lesser punishment is to be inflicted on women is stated by Kāt. ( 487 ) ‘In the case of all offences, women are to Buffer half of the fine in money which is prescribed for a male offender of the same kind ) and when the punishment is death for a male, the punishment for a woman would be the excision of a limb. 636 Kaut. (III. 3) provides:’ a woman attains ability to enter into transactions on completion of 12 years and men when they are 16; if they disobey after that (i. e, after attaining majority ) the woman shall be fined twelve panas and a man twice that amount.’ 627 Angiras quoted by the Mit. (on Yāj.

625. TFT TT armaWET I got O O O or राजनि ॥ माषपादो दिपादोषा दण्डो पत्र प्रवर्तितः अनिर्दिछ त सौवर्ण माषकंवत्र कल्पयेत् । पत्रोक्तो मापकैयो राजसं तत्र निर्दिशेत् । कृष्णलेश्वोक्तमेव स्पायुक्तदण्डविनिश्चयः । माषो FoNTTET 191 Titory # FTCUT. 490-493 q. by way. II. p. 127,

a P. 29-30 ( there are various readings in all these). The my. F#. p. 202 says: WAṢTIO Tourururat hūrer fafet portat Tentuar क्लसत्पात् संख्येयतया प्रापेण न पणा पप गुह्यन्त इति ।

626. सर्वेषु चापराधेषु एसो योर्थदमः स्मृतः। तद योपितो वपुर्वधे पुसोङ्गकर्तनम् ॥ Freu. (487) q. by m e. II. p. 321, 14. #. p. 246.

627. Free of ETTERT BUTU eurgaret i ste gang at an FAUTETT FOTO HT FOTOT: 1. III. 3.

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395

III. 243 ) states that 628 an old man over eighty, a boy below sixteen, women and persons suffering from diseases are to be given half prayasoitta and Saṅkha quoted by the Mit. (on the same Verse) that a child less than five commits no crime nor sin by any act and is not to suffer any punishment nor to undergo a prayascitta 629, Under the Indian Penal Code, 800, 82, nothing is an offence which is done by a child under seven years of age. The severity of punishment depended on caste also. In the case of theft, Gaut. XII. 15-16, Manu VIII. 338-39 prescribe that a vaisya, a kṣatriya and a brāhmaṇa should respectively be fined twice, four times and eight times of the fine to be imposed upon a sūdra for a theft, since each of these is deemed more and more aware of the heinousness of the crime. Kāt. ( 485 ) and Vyāsa state this as a general rule for all offences 630. In the case of abuse and defamation the scales are turned in favour of the higher castes as regards fines. Gaut. XII. 1, 8-12, Manu VIII. 267-268 (=Nār. pārusya 15-16), Yāj. II. 206-207 prescribe that a kṣatriya or a vaisya or a sūdra abusing or defaming a brāhmaṇa was to be respectively punished with the fine of 100 paṇas, 150 paṇas and with corporal punishment (cutting off the tongue), while a brāhmana defaming & kṣatriya, vaisya or sūdra was to be fined 50, 25 or 12 paṇas respectively (nothing in the last case acc. to Gaut. XII. 13). In the case of adultery and rape the caste of the offender and of the woman concerned made great difference in the punishment awarded. For adultery with a woman of the same caste Yāj. II. 286 prescribed the highest amercement, the middling one when the paramour was of a higher caste, but if the male be of a lower caste than the woman, the male offender was sentenced to death and the woman had her ears cut off. Corporal punishment assumes (as pointed out by the Daṇdaviveka p. 20) various forms accor ding as it is meant to cause only harassment (pain) or is

628. अशीवियस्य वर्षाणि बालो पाप्यूमपोशः। मायश्चित्तार्थमईन्ति नियो ग्याधित एच॥ अनेकावशवर्षस्य पचास्परस्प च । चरेवाका महाचैव प्रायश्चितं विशुद्धये ॥ असो FMTTFOTEC 77911 Tarangi TTTTTTTT Arosa pritur 1 q. by

rate on nt. II. 6 (without name). The fHRT on T, III, 243 ascribes the first to siface and the last two to .

629. Nār. IV, 85 holds that a boy is called sisu and is like an embryo till eight and bala or poganda thereafter till 16.

630. येन दोषेण श्मस्प वण्डो भवति धर्मतः । सेन क्षत्रविमाणां द्विएणो विगुणो HOTEL PRETT. 485 q. by FYRS. II. 127. 07. #7. III. 211 ( ascribes to format); पापविसंचव शौचातो यथाक्रमम्। कल्प्यस्करसकटे मार्य मापे धमेऽधमम् ॥ प्पास q. by विश्वल्प पा…17.

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carried out by cutting off (or destroying) a limb or to cause death.’ Harassment or pain may be inflicted by imprisonment, beating, putting fetters, by making ridiculous (by the complete shaving of the head, declaring the offence - by beat of drum in the presence of the convict, parading him through the streets on an ass ) and marking him with signs indicative of offences like theft. Manu (VIII. 125) provides that punishment may fall upon any one (or more) of ten places in the case of the three higher castes, viz. the private parts, the belly, the tongue (either whole or half), the hands, the feet, the eyes, the nose, the ears, wealth and the whole body; but a brāhmaṇa shall depart unhurt from the country (i, e. he is to be only banished). Br. (SBE, 33 p. 388 verses 9-10) speaks of fourteen places of punishment adding the neck, the thumb and index, the fore head, the lips, the hind part, hips, one half of the feet (to Mapu’s ten) and omitting wealth and the whole body there from. Gaut. XII. 43, Kauṭ. IV. 8, Manu (VIII. 125, 380-381 ), Yaj. II. 270, Nār. ( sahasa, 9-10), Viṣṇu V. 1-8, Br. (SBE, vol. 33 p. 388 verse 11), Výddha-Harita VII. 191 prescribe that a brāhmana was not to be sentenced to death or corporal punishment for any offence whatever, but if he were guilty of an offence deserving the death penalty, he was to be punished by ordering his entire head to be shaved, he might be banished from the country (from the city acc. to Nār.), a mark appro. priate to the grave sin committed by him might be ‘branded on his forehead and he might be paraded on an ass.631 Yama, 632 quoted by Sm. O. and V. P., while providing that a brāhmana was to be free from undergoing corporal punishment, allows

631. # EFOTTU # # OTSPOTTATOR" ETCHT VE PERTEN मिसिन पुरात् । लसाटे चाभिशस्ता प्रयाण गर्दभेन च ॥ नारद (साहस 9-10). In these days of fasts as part of the technique of satyagraha for redress of grievances or for justice pursued by Mahātmā Gāndhi and some of his ardent followers it is interesting to note that the widow of the murdered brahmana’ referred to on p. 397 had been undergoing voluntary starvation prāyopaveśa) for four days for securing punishment of her husband’s murderer (who she believed was a wizard) and that the king himself being unable to prove the guilt of the accused began to starve himself and found proof by supernatural méans ( Rājātarangiṇi IV. 82-105 )…"

632. ostilit Treporty event taferelena | GÀ T TU ESITT TT ** प्रथापयेत् । अपवायधनरक्षाकर्म वा कारयेन्पा मासार्धमासं कुर्भात कार्य विज्ञाय तस्वतः। Our fir frenteraf da 1 sat orgo rat ornare at sfat a # quoted by Fr. II. p. 317, 4. g. p. 393. (only the frst). ‘;. ;

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the king to keep & brahmapa offender in confinement in a secret place and give him bare maintenance or the king may make him do the work of guarding cattle for a month or a fortnight or make him perform other work not fit for a decent brahmapa. The Mit.’ on Yāj. II. 270 explains that the mark of female private parts for violating, guru’s bed, of a tavern for drinking the liquor called surā, a dog’s foot for theft, of a headless corpse for brāhmana murder (as laid down by Manu

IX. 237 and 240, Viṣṇu Dh. S. V. 4) is to be made on the forehead only if the offender (whether a brāhmaṇa or not) did not perform prāyascitta for those grave sins. Branding with marks appropriate to the crime committed were in vogue in Rome and in Britain up to 1699 (such as the mark of the letter M for murderers, T for thieves &c.). Vide Barnes’ ‘Story of punishment’ p. 62. The Rā jatarangini (IV. 96-106) refers to a case in the reign of king Candrāpida of Kashmir when a brāhmana guilty of the murder of a brālmana was exempted from death sentence because of the smrti rule. Manu IX, 241 gives option that a brāhmana (unintentionally ) guilty of grave offences may be punished with the middle amercement or he may be banished from the realm keeping all his wealth. The punishments for a brahmana offender, according to Gaut. XII. 44, were preventing him from doing the same thing again, depriving him of all wealth, taking sureties from him, proclaiming him as a thief in the city banishment, putting on his forehead the mark indicative of his crime. Ap. Db.s. (II. 10.27. 16-17) 633 lays down that a brābmana guilty of murder, theft, forcible seizure of another’s land, was to have his eyes covered over with cloth for the whole of his life (while a sūdra guilty of any of the three was to receive the death sentence ). Vrddha-Hārīta (VII.209-210) says that a brāhmaṇa should be branded on the body for all those offences that entailed corporal punishment for other offenders, that he should have his head shaved, that he should be deprived of all his property and banished from the realm. The force of popular feeling on the point of exempting a brāhmaṇa offender from the death sentence was so great that Elphinstone (Governor of Bombay) in Regu lation 14 of 1827, soc. IV (ol. 5) exempted brahmanas and women from death sentence even for murder where public feeling would

:. .633. पुरुषले म्यादाम इति स्वान्पादाय पाया पधुनिरोधस्वेतेषु माह्मणस्य। MT4. V. II. 10. 27. 16-17. Ž., in ciuili!

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be shocked 634. It is not to be supposed that this exemption of the brahmana from the death sentence was unanimous or uni versal. Kāt. (806) contains this remarkable statement: 635 Even a brāhmana deserves to be killed if he be guilty of

634. per i que surfeast faragtitut ostetakut Amiga Tortra ia, ora araraata ‘surtea ragnacfurrat पाएतेषामपराधेषु दण्डो नैष विधीयते’ इतितण्डारीरार्थदण्डयोनिषेधार्थ ने पुनर्दण्डमात्रस्य। Frag. II. p. 126. Medhātithi on Manu VIII, 125 makes it clear that the absence of a fine occurs only in the case of a brāhmana who was a first offender, who did not commit the offence with forethought and who was endowed with learning, good family and character. The Sm. C. II. p. 124 relying on Manu IX. 236 says that a brāhmaṇa could be imprisoned but he could not be subjected to such corporal punishment as cuttiog off a limb or wbipping. The Smrtis openly regarded the brāhmana’s person as sacred and so saved his body. The smrtis endeavoured to reacb the ideal of the rule of law and succeeded to a great extent in doing so. They beld that every man, whatever his rank or condition, was subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. The only differential treatment that we find is in the appointment of judges (pp. 272 273), in the order of taking up causes of litigants (p. 298), in the punishment for perjury (Manu VIII. 123-124), in the matter of corporal punishment. in abuse, defamation and assault (pp.395-397), in punishment for adultery, in the repayment of debts and in the punishment for theft, which was severer for a brahmana. It will be shown below that from the 13th century, as indicated by the Sm. C., S. V. and Madanarataa, differential punishments had gode out of vogue. The smrtis did not, like some modern freedom-loving people, declare the equality of all before the law on paper and in practice indulge in lynching. Further the smrtis required all offenders of whatever caste to be brought before the same tribunals. Maou VIII. 335 and Yaj. I. 358 emphasize that there is aone who is exempt from punishment in the king’s court whether the person be the king’s father or teacher or friend or mother or wife or a son or a family priest or brother or father-in law or maternal uncle. Saṅkha-Likhita and Kāt. (481) no doubt say that a king should not punish his parents, his family priest, teacher, near relatives, forest hermits, ascetics. But, as the Sm. C. II. p. 126 explains, the real meaning is not that the king is to allow these to escape scot-free, but that he should not inflict corporal punishments or fines on these, but should employ admonition or severe reproof towards them. The smrtis do not contain rules like those in the Indian Criminal Pro. Code entitling Europeans and Americans in India to claim a jury preponderantly composed of their countrymen and claiming trial only by the High Court or liko the privileges of the English Peers to be tried only by the House of Lords for felonies or the doctrine of the benefit of clergy abolished in 1827. Vide H. of Dh. vol. II. pp. 140-143 and 147-152 about certain privileges of brāhmanas.

635. ler araret e urgrout fre * I Hat diet har repost rruit o WTTT Q. by TT ON T. II. 281… .

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causing abortion, if he be a thief (of gold) or if he kills a brāhmaṇa woman with a sharp Weapon or if he kills & chaste woman’. Kautilya (IV. 11) prescribes that a brāhmaṇa who aims at the kingdom or who forces entrance into the king’s harem or who incites wild tribes or enemies (against his king ) or who foments disaffection (or rebellion) in forts, the country or the army should be sentenced to death by drowning. 636 The fact that Cārudatta, a brāhmapa, is represented as having been condemned to death by king Palaka in the Mrochakatika indicates that the sentence of death against brāhmaṇas was not entirely unheard of. It appears from Fick’s ‘Social organisation’ &c. p. 212 that in many Jataka passages the execution of brāhmaṇas is referred to.

The Sāntiparva chap. 268 contains an interesting dialogue between king Dyumatsena and his son prince Satyavat on the subject of the punishment of death, which contains some of the arguments forcibly urged in these days by those that are opposed to capital punishment altogether. The prince pleads that punishment should be light even for grave offences, that when the sentence of death is carried out in the case of robbers, 636a several innocent persons (such as the wife, the mother, the son of the condemned man) suffer great loss (and they may die also ), that if offenders give themselves up to priests, swear before them that they will never commit sin, they may be let off after undergoing penance, that if great men go astray their punishment should be proportionate to their greatness. The king replies that in former ages when people were most truthful, soft-hearted, and not hot-tempered the punishment of saying ‘fie on you’ sufficed, then vocal remonstrances and upbraidings sufficed, but in the later ages (of Kali) corporal punishment and death sentence bave to be resorted to and that some people are not deterred even by the fear of death sentence.

A few remarks will be made on each of the several modes of punishment. The sentence of death was, acc. to Kām. XIV. 16, Sukra IV, 1.93, to be avoided even in the gravest offences

636. 1973 erga arata

frontaa frete Thurai Tirgrot : samari SMUT IV. 11.

636a. Erfarenhet atsgreemI I Infrar per t gorror TUTAT: feq: &c, fa 268, 10-11.

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except for the offence of subverting the state.637 Viṣṇu Dh. 8. V. 1 provides that all persons except brāhmaṇas guilty of the mahāpātakas may be sentenced to death. But Manu IX. 236 says that this extreme penalty was to be awarded only if they performed no prāyascitta. Kaut. (IV. 11) prescribes death sentence for causing the death of any one with a sharp weapon. Vrddha-Hārsta (VII. 190) prescribes it for incendiaries, poisoners, murderers, robbers, bad characters, rogues and those guilty of grave sins. The death sentence was carried out in various ways such as by giving poison or by trampling at the feet of an elephant, or by a sharp weapon (like a sword), by being burnt or drowned 638. Impalement was a punishment pres cribed by Manu IX. 276 for thieves guilty of housebreaking by night ( after first cutting off their hands ), by Yāj. II. 273 for those who made another a captive or stole horses and elephants or killed another by the use of force and by Vrddha Hārita VII. 202 for the murderer of a brāhmaṇa or for one who killed a woman, a child or a cow. Death sentence by being trampled under the feet of an elephant continued up to the times of the Marathas. The Dasakumāracarita 4th Uochvāsa shows that & thief could be trampled upon by an elephant by way of punishment. Vide ‘Selections from Peshwa’s Daftar’ (edited by Mr. G. S. Sardesai) vol. 43 No. 143 p. 114 ( dated 7-9-1775 A. D.), where out of seven dacoits of the Berad caste two were ordered to be trampled to death at the feet of an elephant 639 and five were ordered to be simply beheaded. Death sentence is said by the Dandaviveka (p. 20) to be simple

śuddha), which is of two kinds, avicitra when the offender is beheaded ( with a sword), and citra or vicitra ( when the offender is impaled of burnt ) and it is miśra ( when his hands or feet or other limbs are cut off and then he is killed ) 640. Simple death

637. merencarrug pois granted thi TOTTETYT qoti aseta I FTA. XIV. 16. This is q. by gt. p. 61 verse 346.

638. fata (1) Pan o urrit: I graf gruperat ure: Heinina # Arraigre II. 20, verse 1287. p. 144.

639. In Pandyan Kingdom by Prof. K. A. Nilkant Sastri p. 224 the senteoce for the murderer of a brāhmaṇa is shown to have been that of being tied to the leg of a he-buffalo and being dragged by it. - -

640. The word suddka-vadba. is used by Manu “IX. 279. and the words Suddha’ and i citta’ occur in Kautilya IV. 11 and also in Santi 85. 22 T V UREFU mit went ! mrętama T. pofR

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Death sentence

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is prescribed by Manu IX. 271 for those who abet thieves by giving them subsistence, instruments of house-breaking or asylum, If a man of a low caste had sexual intercourse with a woman of a higher caste (with or without her consent) or kidnapped a maiden he was to be sentenced to death (Manu VIII. 366, Yāj. II. 286-288, 294). Vas. XXI. 1-5 prescribed for a śūdra, vaisya or ksatriya guilty of adultery with a brāhmaṇa woman the horrible punishment of being burnt to death after being respectively covered with virana grass, with red darbhas and sara leaves respectively and similar punishment for a śūdra paramour of a ksatriya or vaisya woman and for a vaisya paramour of a kṣatriya woman. The consenting woman (adulteress) was, acc. to Vas. XXI. 1-3, to be shaved, to have her head anointed with clarifi ed butter and to be paraded naked on an ass and left to die on the Great Journey, while, acc. to Gaut. XXIII. 14 and Manu VIII. 371, an adulteress, vain of her charms or the wealth of her parents, was to be openly devoured by dogs, if her paramour was a man of lower caste. Saṅkha 641 prescribes this punishment ( of being devoured by dogs ) for a woman’s paramour of a lower caste and for the erring woman death by burning. Vṇddha-Harita VII. 192 prescribes that in the case of a woman who is a confirmed adul teress, or who destroys her foetus, her husband should have her ears, nose and lips cut off and then she should be banished and verses 220-221 prescribe death by being burnt with grass (katāgni) for those guilty of incest. These severe penalties for adultery were very much relaxed and softened by later smrti writers as is shown in H. of Dh. vol. II. pp. 571-573. A man who made a breach in the embankment of a lake or tank ( and thereby caused it to become dry ) may be sentenc ed to death by drowning (Manu IX. 279 ) or a woman who was extremely wicked (such as one who killed her own child in the womb ) or who murdered a man or who destroyed the embankments of a tank may have a stone tied round her neck and be drowned, provided she be not pregnant at the time of the sentence (Yaj. II. 278). Yāj. IL 279 (=Matsyapurana 227. 200 ) prescribes death by being gored by the horns of bulls (after the nose, lips, ears and hands are cut off) for a woman who is guilty of poisoning (the food or drink of another) or who is guilty of incendiarism or who kills her husband, elders

641. : praraH quoted by ft. p. 396.

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or her own child (provided she is not pregnant) 642. Yāj. II. 282 provides death by being burnt with the fire of straw for those who set fire to growing crops, houses, forests, village, pastures and threshing floors or who approach the queen. Nār. (pāruṣya, Verse 31) prescribes that one who strikes with a weapon the king, even though the latter be at fault, should be impaled and roasted in fire. These examples are enough to convey an idea of the crimes for which the sentence of death was provided in some of the ancient smptis. Manu VIII. 272, Nār. (pāruṣya 24), Viṣṇu Dh. 8. V. 24 prescribe the pouring of boiling oil in the mouth and ears of a sūdra who through insolence tries to expound dharma to brahmaṇas. Cutting off limbs as a punishment (particularly hands and feet or fingers ) was common in the case of thieves, pickpockets and cut-purses (Manu IX. 276-277, Nār., parisista verse 32, Yaj. II. 274). Excision of the tongue was the sentence when a sūdra abused a brāh mana or a kṣatriya by falsely charging him with some grave sin (Ap. Dh. S. II. 10. 27. 14, Manu VIII. 270, Nārada, pāruṣya 22), when a sudra loudly repeated the Veda along with twice-born persons (Gaut. XII. 4), when a person abused the king ( Nār., pārusya 30 ), when a person repeatedly proclaimed what was disliked by the king or divulged the secret policy of the king ( Yaj. II. 302 ). Excision of the male organ was prescribed for a sūdra who sexually approached a woman of the three higher varṇas (Gaut. XII. 2), for any one guilty of the rape of another’s wife (Vrddha-Harita VII. 201 and also confiscation of all property ), for any one guilty of incest or intercourse with mother, mother’s sister, paternal aunt, sister,

642. The general rule was that women were not to be killed on any account. Vide H. of Dh. vol. II, pp. 575, 593–94. Certain offences were exceptions. Even as to them Vas, XXI, 10 and Yaj, I. 72 suggest another and very mild alternative viz. abandonment (tyāga), when a woman con. ceives from intercourse with a man of lower varṇa or when a woman was guilty of killing her busband or foetus, Acc. to the Mit. on Yāj. III. 268 the king appears to have had to undergo some expiation for ordering the death of a guilty woman. In the 18th century the famous judge of the Peshwa’s court, Rāmsastri Prabhune, ordered a woman guilty of & brah maṇa’s murder to undergo only the expiation of circumambulating the holy shrine and bill of Tryambakesvara near Nasik (“Selections from Peshwa’s Daftar’, vol. 43 No. 156 pp. 121-122). Under sec, 382 of the Indian Cri. minal Procedure Code ‘if a woman sentenced to death is found to be preg. Aant, the High Court shall order the execution of the sentence to be post poned and may, if it thiols fit, commute the sentence to transportation for life’,

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Various kinds of punishments

403

the wife of an uncle, friend or pupil, daughter, daughter-in-law, teacher’s wife, a woman come for refuge, the queen, an ascetio woman, a wot-nurse and any chaste woman or a woman of a higher varṇa (Nar., stripumnsayoga 73-75). The nose, the ears and the hands were out off in the case of an offender guilty of selling false gold or forbidden flesh such as that of a dog ( Yāj. II. 297 ). For branding, vide Gaut. XII. 44, Baud. Dh. S. I. 10. 19, Nār. (sāhasa 10), Manu XL 237 (=Matsya 227.16), Viṣṇu Dh. S. V.3-7. The Daṇdaviveka (p. 47) states that branding was to be resorted to if the proper penance was not performed and if the offence was intentional. Yaj. II. 202 provides branding for a gambler using false dice and (II. 294) for persons of the three higher varṇas having intercourse with a very low caste woman and Daksa VII. 33 prescribes it for an ascetic giving up his duties. The Rājatarangipi mentions ( VI. 108-112 ) that king Yaśaskara (939-948 A. D.) of Kashmir branded on a brāhmaṇa’s forehead the mark of dog’s foot. Kośavapandita in his Dandaniti-prakarana (p. 6) quotes the author of the Vaijayanti (Nanda-pandita) to the effect that the making of marks was to be effected with the juice of the marking nut in the case of brāhmaṇas and with a red-hot iron salākā in the case of others. In England about a hundred years ago branding for desertion from the army was practised. Manu VIII. 370 prescribes the shaving of the head as a punish ment for a woman who pollutes a maiden, Nār. (śāhasa 10) preg cribes it for a brāhmaṇa who is not sentenced to death on account of his caste, Sapkha-Likhita (g. by Aparārka p. 807) for one who abuses officers, brāhmaṇas and elders. Megasthenes ( Fragment XXVII. p. 72 ) notes ’ If one is guilty of a very heinous offence the king orders his hair to be cropped, this being a punishment to the last degree infamous’. Imprisonment for life is prescrib ed by Viṣṇu V.71 for striking out both eyes of a man and by Sukra IV.1. 88 (for repeating an offence more than three times) For imprisonment with labour, vide Sukra IV. 1. 92 and 108-109. Flogging was prescribed 643 by Vishnu Dh. S. V. 105 for a woman.

643. The punishment of whipping is allowed in England for several offences; vide Laws of England (ed. by Lord Hailsham, vol. IX, pp. 229-230). In India under the Prisons Act (IX of 1894) by section 46 whipping is allowod for certain prison offences and under the Whipping Act ( IV of 1909) whippiag is awarded for certain offences such as theft, house breaking, dacoity, rape and for juvenile offenders. In modern times many persons laterested in criminology and penology condemn most strongly the stentences of death and whipping. T a et ETA Hear! अनीशा जनिदिधास्तेषा दस्ताबनम् । श्रीपालोन्मत्ताद्धामा परिदाणा रोगिणाम् 787 | famtwurutraminerHTE 291. 9. in ever. A. pp. 531-532.

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17. 380

anishna Paj.

in her monthly course touching intentionally members of the higher castes. It was also prescribed for offenders who were slaves or who were dependents and for women, minors, lunatics, old men, poor men and those suffering from diseases ( Kat.). The punishment of banishment was prescribed for brāhmaṇas guilty of the gravest offences meriting death sente noe (Gaut. XII. 44, Manu IX. 241, VIII. 380, Viṣṇu Dh. S. V. 3 and 8, Baud Dh, S. I. 10. 19, Yaj. II. 270 ). It was often associated with branding. Banishment is also prescribed by Yāj. I. 339 for officers taking bribes (and also confiscation of all wealth), for a perjured brahmana witness (Yāj. II. 81 ), for one who embezzles the money of a corporation or transgresses the conventions agreed upon by a guild or village &c ( Yāj. II. 187, Manu VIII. 219, Viṣṇu Dh. S. V. 167-168 ), for playing with false dice (Yaj. II. 202 and Nār., dyūtasamahyaya 6), for a brāhmana guilty of very heinous offences 644 (Santi 14. 116). Sukra (IV.1. 98-108 ) contains a long list of offenders that deserve to be sentenced to banishment. Confiscation of all property was the punishment for several offences such as the commissa ion of the mahāpātakas by persons other than brāhmaṇas, provided they committed them unintentionally (Manu IX. 242), for perjury, for taking bribes by sabhyas (Viṣṇu Dh. S. V. 179-180). Nār. (prakirpaka 10-11) provides a humane rule that even when the king orders the confiscation of all the property of an offender he should not deprive the offender of the tools of his trade or the tools of his craft, such as arms in the case of a soldier, materials of art in the case of artisans, ornaments of courtezans, musical instruments of musicians. Saṅkha-Likhita 645 quoted by V. R. p. 656 contain a similar provision. • Enhanced punishment was prescribed for committ ing an offence again. Viṣṇu Dh. 8. III. 93 holds that a king should never pardon or let off a man who is guilty of a second

644. APRTE PÅ fi r aria o stiaa 14. 116.

645. BEC: 19: rent after G FATETICE THRITTATY प्रतिमानसमुत्थानि वणिकपथाना क्षेत्रीजभक्तगोशकटकर्षकवण्याणकर्षकाणां, वायभाण्डा सारवासीसि रजोपजीविना, गहशय्यालारवासासि वेश्यानt, शत्राणि ‘चायुधोपजी विना सर्वेषो कारणग्याणि नाबार्याणि राज्ञा । अधार्मिकेण हि पुरुषाः पापबहुलाश्वाधिध गाश्च भवन्ति तेभ्यः पापांशभागराजा तस्माणाधनामातुपकरणान् कुर्यात्तन्मूला हिपतिर्भ पति । यत्तिमूली निवासः । तनिषसद्धिः स्फीतं राष्ट्रमुच्यते । शलिखित q. by वि.. p. 656, which explains coafurang Feveertrag smatrāg… stagio More Fun F r. Compare section 60 (a, b, c) of the Indian Civil Pro. Code for the property which is pot liable to attachment, and sale id execution of a decree.

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offence (though a first offender may be let off with a mere admonition). Kaut. IV. 10 states that when a person is a first offender as to theft at a holy place or as a pickpocket or house breaking from the roof, his thumb and index finger may be cut off or he may be fined 54 paṇas, for a second offence all fingers may be cut or a fine of 100 paṇas may be levied; for a third offence the punishment is cutting of the right hand or a fine of 400 panas and for the fourth death in any way the king may direct. Manu IX. 277, Yāj. II. 274, Viṣṇu Dh. S. V. 136 contain a similar rule. Vide Ap. Dh. S. II. 10. 27. 11-13 for adultery. If several people conspire together and kill or injure a single man the punishment was to be double of what a single man committing the same offence would receive ( Kaut. III. 19, Yāj. II. 221, Viṣṇu Dh. S. V. 73). As indicative of the superstitions of ancient (and even modern) times punishment for witchcraft may be mentioned. Kaut. IV. 4 prescribes 616 the employment of spies to find out those who profess to use charms for securing illicit love and banish them and adds that persons who are engag ed in witchcraft to injure others may be similarly dealt with. In the times of the Peshwas wizards 647 and raisers of ghosts appear to have been frequent and were severely dealt with by the peo ple themselves by being put to death, but the State generally confiscated the property or cut off the alleged wizard’s finger. Up to the beginning of the 18th century even in England wretched old women were frequently convicted as witches and hanged 618

646. Hur #TO : FATHER AT A e Fst vera अमुल्य भार्या स्वषां दुहितरं वा कामये सा मा प्रतिकामयतामयं चार्थः प्रतिगुस्यतामिति । स चेत्तथा कुरिसंवननकारक इति प्रवास्येत । तेन कृत्याभिचारशीलो व्याख्याती । कौटिल्य IV. 4,

647. Vide Selections from Peshwa’s records’ vol. 43 pp. 25-26 about frequent witcbcraft in Kolhapur territories (and a wizard of the mang caste being impaled ), p. 32 (for a woman who was killed as a witch by the Patils without Government orders) and Rao Bahadur Wad’s extracts from Peshwa’s Diaries vol. II. p. 7 ( for confiscation of Vatan and razing to the ground the house of a ghost-raiser) and vol. VIII. p. 147 ( for cutting off a finger ).

648. Vide e. g. 6 State Trials p. 647 (a trial of witches held in 1665 A. D. before Sir Matthew Hale C. B. who condemned them to death ) and 8 State Trials p. 1017 (in 1682) and Stephens’ * History of Cr. Law of England’ vol. II, p. 435 for numerous cases of trials for witchcraft between

1653 to 1712 A. D. Vida Lea’s ‘Superstition and force’ (ed. of 1878) p. 425 as to torture of beretics for extracting confessions expressly allowed by Papal Bulls and pp. 506-507 for torture being allowed in sorcery and witch craft cases in England up to the 17th century. Vide & very discerning and interesting paper on “Witchcraft in Aacicnt India ’ by Dr, Winteraitz in Indian Antiquary, vol. 28 pp. 71-83,

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Manu IX. 290 (=Matsya 227. 183) prescribes the very mild punishment of the fine of 200 paṇas for all incantations intended to destroy life, for magic rites and various kinds of raising ghosts and gobling. Medhātithi and Kullūka say that if the magio rites are successful the punishment would be that for murder. Bp. (S. B. E. vol. 33 p. 361 verse 16 ) provides banish ment for those who practise incantations with roots.

Kauṭ. in II. 5 prescribes 649 that a jail should be constructed in the capital provided with separate accommodation for men and women kept apart and well guarded at the entrances. He further provides 650 that among the duties of the nāgaraka is to let out of the jail on the day of the festival of the birth con stellation of the king and on the full moon day (of every month) such persons as are young, very old, suffering from diseases and helpless, or those who are charitably, disposed may pay the fines or others bind themselves by an agreement to pay in cash the fines for the offences for which the prisoners aro jailed (and then the prisoners may be released). The persons jailed may be set free on their working every day or once in five days or by undergoing corporal punishment (whipping &o.), paying fines in cash. Prisoners may be released from jail (as a favour) on the conquest of fresh territory or on the coronation of the Crown Prince or on the birth of a son to the king. In the Delhi Topra Pillar Edict No. IV (Corpus I. I vol.” I. p. 123 and E. I. vol. II, pp. 253-54) Emperor Asoka promulgates that he gives three days’ respite to prisoners on whom judgment has been passed and who have been condemned to death and in the 5th Pillar Edict of Delhi Topra (Corpus II vol. I. p. 126-128 and E. I. vol. II. pp. 258,259 ) he says that he let off prisoners 25 times in 26 years ( which is in conformity with Kauṭiya’s dictum cited above). In the first separate Ediots at Dhauli Asoka addresses his officers of justice in the capital (Nagaravyāvahārikāh) that they should so act that even a single person should not unnecessarily suffer imprisonment or pain. In spite of this if we are to believe Yuan Chwang, Asoka in his early career was most cruel and had constructed a jail

649. maig FUTWAYFTUTI U PETE a far II. 5.

650. बन्धनाणारेच बालादण्याधितानाधाना च जातनक्षत्रपौर्णमासीषु विसर्गः पुण्पशीलासमपाशा वा दोषनिष्कयं वा । विषसे पथरावा पन्धनस्थान विशो पपेत् । कर्मणा काग्दण्डेन हिरण्याग्रहेण वा अपूर्वदेशाधिगने युवराजाभिषेचने । पुत्र

aft TAHTammy forfraanfero II. 36.

Jails

that was called Hell-prison of Asoka (vide Watters, vol. II. pp. 88-90). Manu IX. 288 requires that all jails should be so built as to abut on the royal road where the offenders suffering pain and in bad condition would be seen by all (in order to deter others from committing offences ). The Silappadikāram, one of the earliest works in Tamil, mentiong the release of prisoners on the king’s birthday and at the founding of a temple (pp. 38-39 of Mr. Dikshitar’s translation). Kalidasa in the Malavikāgnimitra 651 (Act IV) makes the Vidūṣaka report to the king, ’the astrologers think that, as the constellation on which Your Majesty was born is in evil aspect now, let all prisoners be released’. Kalidasa ( in Raghu 17.19 ) alludes to the release of prisoners and the commutation of death sentences at the time of the coronation of king Atithi. The Bṛhat-Samhita ( 47.81 ) states that when the king takes the Puṣyasnūna (ceremonial bath on the day on which the moon is in conjunc. tion with the Puṣya constellation in the month of Pausa or every month ) he may order release except as to those prisoners who were convicted for offences connected with his own person or with the harem, 652 In the Mșcchakatika (Act X) also various occasions for the release of prisoners are mentioned by the executioner. The Harṣacarita 653 (IL 2nd para ) refers to the Usage of releasing prisoners at the time of a coronation and on the birth of Harṣa (IV. ). The prisoners are described in the latter passage as having long beards and as darkened by the accumulation of dirt on their bodies.

Manu IX. 243 enjoins upon the king not to appropriate to himself the property of a man guilty of the mahāpātakas (by way of fine or confiscation) and warns that if he takes it out of greed he is tainted by the guilt of the offender. Manu (IX. 244-45 ) recommends that such fine may be cast into water as an offering to Varuna ( the Lord of waters ) who wields sceptre even over kings or may be bestowed on learned and virtuous

MWh

631. armannaa that i ca 4* THAIH: far HF I ROTE THAT IV. after verse 3; quo pat preparatai wyrort ya #T#REI TEATERT# Th. 17. 19.

632. panta guari i PUTETT 47. 81, on which 70 remarks NTH ist ein 691 &c.

633. aparatfarm wheat gfuret og r esteanu Por #9: Pafta II, para 2; TEH r ammarfa FAMUTIFT erot 49: To preugestattungen UTC T o ureTie I gefelte Iv.

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brāhmaṇas, that are lords of the whole world. Manu (IX. 246–247 ) further states that in the country where the king avoids taking the property of very wicked sinners men become long-lived, crops spring up, there is no infant mortality &c.

Generally no one was allowed to take the law into his own hands except as to recovery of debts ( which will be discussed below). But Nār. (pārusya 654 11-14) contains the following remarkable passage: ‘If a svapāka, a meda, a candāla, one devoid of a limb, one gaining livelihood by killing animals, an elephant driver, vrūtya (i. e. deprived of caste for non performance of upanayana), a slave, one who disregards his elders or spiritual teacher if these should transgress the limits they must observe towards their superiors, they should be punish ed then and there by the person offended and the person so doing is not regarded as committing an offence (equal to theft). Should any such low person insult another (who is his superior ) that man himself shall punish him and the king has nothing to do with the punishment. These people are like the refuse ( dregs) of humanity and their property also is impure. The king is entitled to inflict bodily punishment (whipping ), but he should not inflict fines on them’. The Mit, on Yāj. II. 270 quotes a text of Vṛddha-Manu of similar import and explains that the words ’the king should avoid taking fines’ refer to cases of grave offences 655

Something must be said about the law of Limitation. In the smrtis and digests rules of Limitation play very little part for several reasons. As on spiritual grounds, which will be set out under the title of rṇādāna, not only the debtor, but also his sons, grandsons and great-grandsons were liable to pay a debt (Mit. on Yāj. II. 50 ), there was no scope at all for prescribing any period of limitation so far as recovery of debts was concerned. Unpaid purchase money was treated as a debt. In other matters also the smrtis and dharmaśāstras, under the influence of religious and other-worldly considerations always lean against

___654. पाकमेवण्यालायने धात्तिषु। हस्तिपधारपदासेषु गुर्षाचार्याधिगेषु ॥ मर्यादातिकमे सपो पात एवावशासनम् । न च तवण्यपारण्ये स्सेपमाहुर्मनीषिणः । यमेष प्रतिवर्तेत नीच सन्त मनं रस एप पिन कुर्याजसविनयभावपः ॥ मला ते महण्येषु wat he i fu aroma arta qora ARC (po 12-14 ) For 774, , TRIE and any vide H. of Dh. vol. II pp. 97, 92, 81, 378 respectively.

655. पानांदमापन भयापोषातपितवारनमेषा मलात्मकम् । भतरवान पात ray barata porqu’t apa garrafa fan. on 71. II. 270,

Law of Limitation

409

allowing mere lapse of time to prevent a man from asserting his just rights. But rarely there were writers who were more secular and laid down periods of limitation. For example, Kauṇdinya 656 ( quoted in V. Matsaka p. 341 ) holds that a debt not claimed for ten years cannot be recovered except when the creditor was a minor or very old or was a woman or was suffer ing from disease or there was confusion due to invasion or (the oreditor or debtor ) had left the country. Some important rules on the law of Limitation are set out here in one place :

1. Manu VIII. 148, Yaj. II. 24, Gaut. XII. 35, Vas. 16. 17,

Nār. IV. 79 and others state that enjoyment of immovable property in the presence of the real owner without protest from him causes logs of ownership and ten years’ enjoyment of movables under similar circumstances leads to the same result. There are various views on the subject which have already been

indicated above ( on pp. 322-325 ). 2. An exception to the above rule is stated to be that no

limitation applies to pledges. boundaries, deposits, and to the property of minors, idiots, the State, women and brāhmaṇas learned in the Vedas. Vide Gaut. XII. 35-36, Vas. 16. 18, Manu VIII. 149, Yāj. II. 25, Nār.

IV. 81, Br. (S. B. E. vol. 33 p. 312 verse 21 ). 3. As the rules about deposit are extended by Nār.

(upanidhi verse 14) to articles borrowed or given to artisans for being worked, and to anvāhita, nyāsa and pratinyāsa, in the case of these also there would be ordinarily no bar of limitation. Vide Manu VIII. 145-146, Yāj. II. 58, Viṣpu Dh. S. VI. 7-8. Here also there are dicta to the contrary. Marici (q. in Sm. C. II. p. 69 quoted above on p. 326 ) says that cows, beasts of burden, ornaments and the like borrowed in a friend. ly way would have to be returned (at the latest) in four or five years, otherwise they are lost. Aco. to Vyāsa 657 this rule would not apply to what is lent to

ME

· 656, PATI Fot. PTT Tripwreturen Arati inter quoted io . . p. 341: compare thp very similar words of wife (III. 16) aprile com pani es and there diana THE पाधिचम्पनिमोनितपेशावामराल्पनिमेसमितिमा पेक्षितकहपतितं पातुमायुजीता। Is कौडिन्य s misreading for कोशिल्प in the rपहारमातुका. :- 637.

पामोशिये राजामावि विजोगेकनीयते॥ स्पास in तिच. II. P. 69. .

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friends, relatives, brāhmanas and the servants of the king on their request. It appears that a period of twenty years was prescrib ed for avoiding a document on the ground of patent defects by one who had seen it and was affected by it. Vide Kāt. 298-300. Similarly when a thing is enjoyed for twenty years on the basis of a writing in the presence of an opponent able ( to challege the enjoyment and the writing) then the writing becomes unassailable (even if the witnesses are all dead or there is no other document for comparison). Vide

Kat. ( 299 ) 658 5. A deed settling a boundary dispute becomes unas

sailable after twenty years. Vide Kāt. ( 301 )659 6. No suit can lie on a dooument executed beyond thirty

years, which has never been seen by any body nor read out ( by the creditor to any body ) even though the attesting witnesses may be living. Vide Br.

(S. B. E. vol. 33 p. 308 verse 29 ) 660 In the preceding pages we have passed in review the law of judicial procedure, evidence and limitation. A careful perusal will convince any unbiassed reader that the Dharma sāstras evolved during the course of centuries an indigenous system of judicial procedure of a high order. Nārada, Brhas pati and Katyāyana répresent the high water mark of ancient Indian adjective law. These writers flourished before 600 A, D. and the first two of them are probably older by several centu ries than that date. They present an orderly system providing for the appointment and duties of judges, proper pleadings, the law of evidence and limitation, decrees and their execution, crimes and punishments. This system compares most favour ably with any system of judicial procedure prevalent anywhere in the West up to the 18th century A. D.

658. पुढे पोस्टान घोपालोकपाणिको यदि । ततो पिंशतिवर्षाणि स्थित पत्र fere will 4T (298) q. by 18. AT. p. 340, OTT. AF. III. p. 136; समिधापर्थो पेन लेख्येन भुज्यते । पाणि विंशति पावत्य चोपार्जितम् ॥ काल्पा. 299 q. by FATI..ON 07. II. 24. ef p. 690, r4. HT. D. 340.

659.: सीमाविमा निर्णीत सीमा विधीयते । तस्य दोषाः प्रवक्ताया थापाणि falar #art. 301” 6,5 by fara. Oni II 24, mert p. 691, 97. AT. III. p. 136. .

!! diri in quanto . 1660. Anariwisat in afara fara f ing. Tp.q. by sa p. 692, 1T ATD. 340. ‘’, ..