Chapter XV. Decision

Volume III pp. 379–410

Chapter XV. Decision

The last (i. e. 4th) stage in a judicial proceeding is siddhi (Yāj. II. 8) or nṛṇaya (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 pāda 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 plaintiff¹. 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 pronounced². It is stated by Vyāsa and Śukra IV. 5. 271 that the decision of a case is based on eight sources³ (6 acc to Śukra) viz. the three pramāṇas (possession, documents and witnesses), logical inference, the usages of the country, śapathas (oaths and ordeals), the king's edict and the admission of the litigantṣ Pitāmaha 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 all⁴.

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 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 termṣ Several verses of Nārada (quoted by Aparārka p. 684), Bṛhaspati (S B. E. vol. 33 p 307 verse 19), Kāt. (259-265), (q. by Mit. on Yāj II 91- and Aparārka p. 684) and Vyāsa (Sm C II p 57) lay down the contents of the judgment⁵. It was to contain a brief statement of the plaint, the reply, the evidence, the depositions of witnesses, discussion thereof, arguments, the smṛti 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. Vaṣ 19 10 refers to precedents also in the decision of cases and the award- ing of punishments (āgamād-dṛṣṭāntāc-ca). The Mit quotes a smṛti text (on Yāj. II 91) that other members of the assembly (who are not judges) proficient in smṛti 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 paścātkāra⁶ (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 hīnauḍi (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 happeneḍ Kaut. (III. 19) appears to employ the word 'paścātkāra' in a somewhat different sense when he says 'the person, who, when charged with murder, does not reply to the charge that very day, stands refuted' (i. e. is found guilty)⁷. The Mit (on Yāj. 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 defa ted for change of pleading or for default of appearance or for non-prosecution the document stating this is called ‘hīnapatrāka’. It is to be regretted that ancient jayapatras in Sanskrit have not yet been discovereḍ 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 śake 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 enḍ 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 śake 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 smṛtis 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 uphelḍ 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 (sammah) 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 centurieṣ

The Mit. (on Yāj II. 91), and V. Mātṛkā p. 309 note that a jayapatra is given specially to prevent the same matter being agitated again, while a document given where a party is hinavādi (i. e. a hīnapatraka) 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 a nīrṇaya-patra (kulādbhu nīrṇaye jayapatrābhāvān-nīrṇaya-ptram tatra kāryam parattapatramṛ yāvat, as the Vy. Nīrṇaya p. 85 says). It would be better to adopt the reading ‘vṛttapatram’ 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 proving⁸. 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 liability 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 suit I shall pay a hundred panas’) 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)⁹; compare Viṣṇu Dh. S. V. 153-159 for similar ruleṣ The punishments awarded in criminal matters will be discussed immediately below.

It would be necessary to see in what cases review of judgment was alloweḍ The general rule is stated by Manu IX. 233, ‘whenever any legal proceeding has been completed (tīrita) 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 'anuśiṣṭa' have been variously explained ⁶⁰³. The word 'tirita' is very ancient and occurs in the Delhi Pillar Edict IV of Aśoka (E I. Vol. II. p. 253) as 'tilita-daṇḍanam' qualifying men imprisoned in jailṣ Medhātithi and Kuḷḷūka 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 'anuśiṣṭa,' which is declared (to be true or false) on the testimony of witnesseṣ” The lexcion called Vaijayantī seems to have Kāt. in mind and defines 'tirita' as a perverse decision given by the sabhyas themselves and 'anuśiṣṭa' occurs where the evidence of witnesses makes what is true appear as false (Bhūmikāṇḍa, vaiṣyādhyāya, 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 Aparārka p. 866 and V. P. p. 90 for explanationṣ

According to Kāt. quoted in the Vyavahārāsāra (p 101) ⁶⁰⁴ the decree should provide for the successful party receiving the interest on or accretions to the movable or immovable property 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 executeḍ The king should make a brāhmaṇa debtor return the decretal debt 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 physical pain (i. e. imprisonment) The king should make a co- sharer or friend (of the successful party) pay the decretal 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 kṣatriya, vaiśya, śūdra 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 varnas other than brāh- maṇa are unable to pay the fine imposed by the king they should be made to work for the king, but a brāhmaṇa may be allowed to pay in easy and small instalmentṣ 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 or imprisonment in execution of a decree for money on economic grounds under certain legislative enactments like sec. 21 of the Deccan Agriculturists’ Relief Act (Bombay Act XVII of 1879) As regards women also Kāt. (488–489) laid down certain prudent rules “Women who are not ¹³ 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 returnṣ” The Sṃ C. II p 323 explains that the first verse applies to a woman who can perform the expiation for adultery and who is dependent and the adultery is not with a male of a lower caste.

Nār (IL 40) lays down¹⁴ a qualification that when a party has been defeated by his own conduct (i. e. 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 insolence¹⁵ 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 (Yāj 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)¹⁶. 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 (Nār. 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 Yāj. II. 306 )¹⁷.

Yāj. (II 4 and 305) 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. Nār. I 66 (in S. B. E. vol. 33 p. 22) is similar. Manu IX. 231 (== Matsya 227. 158) 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 amātyas (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 smṛti 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 "Selections 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 Rāmsāstrī, famed for his impartiali- ty and strict life, to another judge on the ground that one of the litigants was afraid that Rāmsāstrī 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 oceaṇ 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 Heaven¹⁸.

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 actioṇ 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. Many crimes and wrongs were sins and entailed secular punishments and also religious sanctions (viz expiations, prāyaścittas). Vide Manu IX. 236, 240, Br. (S. B. E. vol 33, p. 362, verse 22) and Paithīnasī quoted below¹⁹. 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 smṛti texts do not prescribe only a money compensation to the person wronged, but corporal punishment in the first instance and monetary compensation in additioṇ Vide for example, Manu VIII. 287, Yāj. II 222, Br. (SBE vol. 33 p. 358 verses 9-10), Kāt. (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 solātum to him ²⁰ Āp. Dh S (I. 9. 24. 1 and 4) lays down that the slayer of a kṣatriya should give a thousand cows in order to remove the enmity (i. e as compensation to relatives) and one bull in addition for expiatioṇ²¹ The Chāndogya Upaniṣad quoted above (p. 362) shows that a thief was punished with death in those early dayṣ There is a passage in the Tai. S II, 6. 10. 1 (quoted in H. of Dh. vol. II p. 151 ṇ 346) which states, 'He who threatens a brāhmaṇa should be made to pay a hundred, he who strikes a brāhmaṇa should be made to pay a thousand'. It is rather doubtful whether the figures stated are fines or are meant as solātum to the wronged In Rg. II. 32. 4 (which also occurs in Tai S III 3 11. 5) the poet prays to Rakā ²² (the Full Moon personified ) that she may be pleased to grant the boon of a valiant son, who would be ‘śatadāya’. Sāyaṇa's rendering of this word as ‘possessed of plentiful heritage or wealth’ appears to be the right one. The words ‘śatadāyam vīram’ in the Tai S. III. 3. 11. 5 are translated by Prof Keith as ‘a hero whose wergild is a hundred’. This is incorrect, confounding as it does the ideas of western Germanic tribes with the Ṛgveda 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 killeḍ

The ancient smṛti writers were quite aware of the several purposes served by punishments for crimes, ²³ though they do not 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 wantṣ ²⁴ In all ancient societies the lex talionis (the law of retaliation, viz. an eye for an eye, a tooth for a tooth) prevaileḍ²⁵ Manu VIII. 280 (which is almost the same as Nār., pārusya, verse 25), Yaj II. 215, Viṣṇu Dh. S. V. 19 and Śankha-Likhita prescribe that with whatever limb²⁶ a man of low caste offends against a brāhmaṇa, 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 (danda) has already been dwelt upon in the section on rājadharma (p. 21). The end sought to be served by punishment was the protection of society and the securing of its happinesṣ The Śāntiparva (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 public opinion).²⁷ Gaut XI. 28 derives the word danda from the root dam to restrain or to deter. This purpose of punishment is well brought out in the Mṛcchakațika (X) when the sentence passed on Cărudatta for the alleged murder of Vasantasenā is proclaimed to the citizens by the executionerṣ²⁹ 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 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 ( = Vaṣ 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 Manusmṛti that the more ancient criminal law in India was very severe and drastic, but that from the times of Yājñavalkya, Nār. and Br. 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 Hien: (Fragment XXVII p. 71 ) ‘a person bearing false witness suffers mutilation of his extremitieṣ 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 Daśakumāracarita (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 L 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’ (Hiṣ 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 [III]

punishable by death. In 1832 a child was convicted at Ludgate 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. (SBE 33 p. 387 verse 5), Vṛddha-Hārīta (7 I 95) speak of four methods of punishment ( daṇḍa ) 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.³⁰ 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 mahāpātakas 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. Br. (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, prāḍvīvakamāte sthutah ). The Mṛcchakațika (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 vayaṁ pramāṇaṁ śese tu rājā ) Gaut. XII 51, Vaṣ 19 9, Manu VII. 16, VIII 126 and Yāj I. 368 ( = Vṛddha-Hārīta VII. 195–196 ), Bṛhat Parāśara 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 fact whether the offence ³¹ is repeateḍ 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 nothing 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 ³² 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), qualities, time, place, the nature of the offence (whether it is repeated or is a first offence). The Rājatarangiṇī (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 actṣ 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, pathological or sociological conditions, to the upbringing and environment of the person charged with crime. They favour determinisṃ The ancient Indian writers do not enter into these speculationṣ 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. e. variable). They range from a kākaṇī to the confiscation of all wealth; fixed fines were of three kinds called prathama sāhasa, madhyama sāhasa (middling amercement) and uttama sāhasa (highest). These are variously defineḍ According to Śaṅkha-Likhita the first ³³ 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 panaṣ in proportion to the value of the matter in dispute or the injury caused Manu VIII 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 represent the fines to be awarded for offences committed without set purpose. Nār. ( sāhasa, verses 7–8 ) prescribes that 100 panas 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. Kāt ( 490–493 ) lays³⁴ down the follow-ing rules: Whatever figure of fine is prescribed in the smṛti texts for a wrong it is to be paid to the king in panas of copper or half of a māsa, there it is a golden māsa that is meant; when the fine is declared in māsas, they are to be understood as those of silver and where the fine is declared in kṛṣṇalas the same is to be understood; a māsa is ¹⁰/₈th 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 suffer 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.’³⁵ Kaut ( III. 3 ) provideṣ ‘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.’³⁶ Aṅgiras quoted by the Mit ( on Yāj, III. 243 ) states that³⁷ an old man over eighty, a boy below sixteen, women and persons suffering from diseases are to be given half prāyaścitta and Śaṅkha 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 prāyaścitta³⁸. Under the Indian Penal Code, sec. 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 vaiśya, a kṣatriya and a brāhmaṇa should respectively be fined twice, four times and eight times of the fine to be imposed upon a śūdra 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 offences³⁹. In the case of abuse and defamation the scales are turned in favour of the higher castes as regards fineṣ Gaut. XII 1, 8–12, Manu VIII. 267–268 (=Nār. pāruṣya 15–16), Yāj II. 206–207 prescribe that a kṣatriya or a vaiśya or a śūdra abusing or defaming a brāhmaṇa was to be respectively punished with the fine of 100 panas, 150 panas and with corporal punishment (cutting off the tongue), while a brāhmaṇa defaming a kṣatriya, vaiśya or śūdra was to be fined 50, 25 or 12 panas 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 awardeḍ 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 Dandaviveka p. 20) various forms according as it is meant to cause only harassment (pain) or is 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 Manu’s ten) and omitting wealth and the whole body there- froṃ Gaut. XII. 43, Kaut. IV. 8, Manu (VIII. 125, 380–381), Yāj. II. 270, Nār. (sāhasa, 9–10), Viṣṇu V. 1–8, Br. (SBE. vol 33 p. 388 verse 11), Vṛddha-Hārita VII. 191 prescribe that a brāhmaṇa 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 asṣ⁴⁰ Yama,⁴¹ quoted by Sṃ C. and V. P., while providing that a brāhmaṇa was to be free from undergoing corporal punishment, allows III ] Punishments for a brāhmaṇa offender the king to keep a brāhmaṇa 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 brāhmaṇa. The Mit. on Yaj. 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 brāhmaṇa 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 prāyaścitta for those grave sinṣ 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 Rājatarangini (IV. 96-106) refers to a case in the reign of king Candrāpida of Kashmir when a brāhmaṇa guilty of the murder of a brāhmaṇa was exempted from death sentence because of the smṛti rule. Manu IX. 241 gives option that a brāhmaṇa (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 brāhmaṇa 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. Āp. Dh.S. (II. 10 27. 16-17)⁴² lays down that a brāhmaṇa guilty of murder, theft, forcible seizure of another’s land was to have his eyes covered with cloth for the whole of his life (while a śūdra guilty of any of the three was to receive the death sentence). Vṛddha-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 realṃ 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, sec. IV (cl. 5) exempted brāhmaṇas and women from death sentence even for murder where public feeling would be shocked ⁴³. It is not to be supposed that this exemption of the brāhmaṇa from the death sentence was unanimous or universal Kāt. (806) contains this remarkable statement. ⁴⁴ 'Even a brāhmaṇa deserves to be killed if he be guilty of The Smṛtis openly regarded the brāhmaṇa's person as sacred and saved his body. The smṛtis endeavoured to reach the ideal of the rule of law and succeeded to a great extent in doing so. They held that every man, whatever his rank or condition, was subject in the ordinary law to the realm and amenable to the jurisdiction of the ordinary tribunalṣ 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 brāhmaṇa. It will be shown below that from the 13th century, as indicated by the Sṃ C., S. V. and Madanaratna, differential punishments had gone out of vogue. The smṛtis did not, like some modern freedom-loving people, declare the equality of all before the law an paper and in practice indulge in lynching. Further the smṛtis required all offenders of whatever caste to be brought before the same tribunalṣ Manu VIII. 335 and Yāj. I 358 emphasize that there is none 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. Sañkha-Likhita and Kāt. (481) an doubt say that a king should not punish his parents, his family priest, teacher, near relatives, forest hermits, asceticṣ But, as the Sṃ C. II, p. 126 explains, the real meaning is not that the king is to allow these to escape spot-free, but that he should not inflict corporal punishments or fines on these, but should employ admonition or severe reproof towards theṃ The smṛtis 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 like 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 Db. vol. II. pp. 140-143 and 147-152 about certain privileges of brāhmaṇaṣ causing abortion, if he be a thief (of gold) or if he kills a brāhmaṇa woman with a sharp weapon or if he kills a chaste woman¹. Kauṭilya (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.⁴⁵ The fact that Cārudatta, a brāhmaṇa, is represented as having been condemned to death by king Pālaka in the Mṛcchakaṭika 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 Jātaka passages the execution of brāhmaṇas is referred to.

The Śāntiparva 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,⁴⁶ 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 have 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 Ksm XIV. 16, Śukra IV. 1 93, to be avoided even in the gravest offences except for the offence of subverting the state.⁴⁷ Viṣṇu Dh. S V. 1 provides that all persons except brāhmaṇas guilty of the mahāpātakas may be sentenced to death. Manu IX. 236 says that this extreme penalty was to be awarded only if they performed no prāyaścitta. Kaut (IV. 11) prescribes death sentence for causing the death of any one with a sharp weapoṇ Vrddha-Hārita (VII 190) prescribes it for incendiaries, poisoners, murderers, robbers, bad characters, rogues and those guilty of grave sinṣ 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 drowneḍ⁴⁸ Impalement was a punishment prescribed by Manu IX. 276 for thieves guilty of housebreaking by night (after first cutting off their hands), by Yaj 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 Marathaṣ The Daśakumāracarita 4th Ucchvāsa shows that a 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 elephant⁴⁹ 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, avcitra when the offender is beheaded (with a sword), and citra or vicitra (when the offender is impaled or burnt) and it is miśra (when his hands or feet or other limbs are cut off and then he is killed)⁵⁰. Simple death III ] is prescribed by Manu IX. 271 for those who abet thieves by giving them subsistence, instruments of house-breaking or asyluṃ 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) Vaṣ XXI. 1–5 prescribed for a śūdra, vaiśya or kṣatriya guilty of adultery with a brāhmaṇa woman the horrible punishment of being burnt to death after being respectively covered with vīraṇa grass, with red darbhas and śara leaves respectively and similar punishment for a śūdra paramour of a kṣatriya or vaiśya woman and for a vaiśya paramour of a kṣatriya womaṇ The consenting woman (adulteress) was, acc. to Vaṣ XXI 1–3, to be shaved, to have her head anointed with clarified 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. Śańkha ⁵¹ 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. Vṛddha-Hārita 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 smṛti 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 (Yāj. II. 278). Yāj. II. 279 ( = Matsyapurāṇa 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 or her own child (provided she is not pregnant)⁵² 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 queeṇ Nār. (pārusya, 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 smṛtis Manu VIII 272, Nār (pārusya 24), Viṣṇu Dh. S. V. 24 prescribe the pouring of boiling oil in the mouth and ears of a śūdra who through insolence tries to expound dharma to brāhmaṇaṣ 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., pariśiṣṭa verse 32, Yāj II. 274). Excision of the tongue was the sentence when a śūdra abused a brāhmaṇa or a kṣatriya by falsely charging him with some grave sin (Āp. Dh. S. II. 10. 27. 14, Manu VIII. 270, Nārada, pārusya 22), when a śūdra 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 (Yāj. II. 302). Excision of the male organ was prescribed for a śūdra who sexually approached a woman of the three higher varṇas (Gaut XII. 2), for any one guilty of the rape of another's wife (Vṛddha-Hārīta VII. 201 and also confiscation of all property), for any one guilty of incest or intercourse with mother, mother's sister, paternal aunt, sister, the wife of an uncle, friend or pupil, daughter, daughter-in-law, teacher's wife, a woman come for refuge, the queen, an ascetic woman, a wet-nurse and any chaste woman or a woman of a higher varṇa (Nār., stripumsayoga 73–75) The nose, the ears and the hands were cut 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, Bauḍ Dh. S. I. 10. 19, Nār. (sāhasa 10), Manu XI. 237 (= Matsya 227.16), Viṣṇu Dh. S. V. 3–7. The Daṇḍaviveka (p. 47) states that branding was to be resorted to if the proper penance was not performed and if the offence was intentional. Yāj II. 202 provides branding for a gambler and (II. 294) for persons of the three higher varṇas having intercourse with a very low caste woman and Dakṣa VII 33 prescribes it for an ascetic giving up his dutieṣ The Rājataraṅgiṇī mentions (VI. 108–112) that king Yaśaśkara (939–948 A. D) of Kashmir branded on a brāhmaṇa's forehead the mark of dog's foot. Keśavapaṇḍita in his Daṇḍanīti-prakaraṇa (p. 6) quotes the author of the Vaijayantī (Nanda-paṇḍita) 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 śalākā in the case of otherṣ In England about a hundred years ago branding for desertion from the army was practiseḍ Manu VIII. 370 prescribes the shaving of the head as a punish- ment for a woman who pollutes a maiden, Nār. (sāhasa 10) pres- cribes it for a brāhmaṇa who is not sentenced to death on account of his caste, Śaṅkha-Likhita (q. by Aparārka p 807) for one who abuses officers, brāhmaṇas and elderṣ 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 Śukra IV. 1. 88 (for repeating an offence more than three times). For imprisonment with labour, vide Śukra IV. 1. 92 and 108–109. Flogging was prescribed ⁵³ by Viṣṇu Dh. S. V. 105 for a womaṇ in her monthly course touching intentionally members of the higher casteṣ 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 ( Kāt ). The punishment of banishment was prescribed for brāhmaṇas guilty of the gravest offences meriting death sentence ( Gaut XII. 44, Manu IX. 241, VIII. 380, Viṣṇu Dh S V. 3 and 8, Baud Dh. S. I. 10, Yāj. 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 brāhmaṇa 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 ( Yāj. II. 202 and Nār., dyūtasamāhvaya 6), for a brāhmaṇa guilty of very heinous offences⁵⁴ ( Śānti 14 116 ) Śukra (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 commission of the mahāpātakas by persons other than brāhmaṇas, provided they committed them unintentionally ( Manu IX. 242), for perjury, for taking bribes by sadhyas ( Viṣṇu Dh. S V. 179-180) Nār ( prakīrṇaka 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 Śaṅkha-Likhita⁵⁵ quoted by V. R p 656 contain a similar provision Enhanced punishment was prescribed for committing an offence agaiṇ Viṣṇu Dh. S. III. 93 holds that a king should never pardon or let off a man who is guilty of a second III ] 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 panas, for a second offence all fingers may be cut or a fine of 100 panas 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, Yaj 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, Yaj. II. 221, Viṣṇu Dh. S. V. 73). As indicative of the superstitions of ancient (and even modern) times punishment for witchcraft may be mentioneḍ Kaut. IV. 4 prescribes ²³ 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 ⁵⁷ 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 ⁵⁸. Manu IX. 290 (=Matsya 227. 183) prescribes the very mild punishment of the fine of 200 panas for all incantations intended to destroy life, for magic rites and various kinds of raising ghosts and goblinṣ Medhātithi and Kullūka say that if the magic rites are successful the punishment would be that for murder. Br. (S B E. vol. 33 p. 361 verse 16) provides banish-ment for those who practise incantations with rootṣ

Kaut. in II 5 prescribes ⁵⁹ that a jail should be constructed in the capital provided with separate accommodation for men and women kept apart and well guarded at the entranceṣ He further provides ⁶⁰ that among the duties of the nāgaraka is to let out of the jail on the day of the festival of the birth constellation 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 are 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 &c. ), 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 Ašoka 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 I. I. 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 Kauṭilya's dictum cited above ). In the first separate Edicts at Dhauli Ašoka addresses his officers of justice in the capital (Nagaravyavahārikāḥ) that they should so act that even a single person should not unnecessarily suffer imprisonment or paiṇ In spite of this if we are to believe Yuan Chwang, Ašoka in his early career was most cruel and had constructed a jail that was called Hell-prison of Aśoka (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 Śilappadikāram, one of the earliest works in Tamil, mentions the release of prisoners on the king's birthday and at the founding of a temple (pp. 38-39 of Mr Dīkshitär's translation). Kālidāsa in the Mālavikāgnimitra⁶¹ (Act IV) makes the Vidūsaka 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'. Kālidāsa (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 Brhat-saṃhitā (47-81) states that when the king takes the Pusyaśnāna (ceremonial bath on the day on which the moon is in conjunc- tion with the Pusya 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 hareṃ⁶² In the Mṛcchakaṭika (Act X) also various occasions for the release of prisoners are mentioned by the executioner. The Harṣacarita⁶³ (II. 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 bodieṣ

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 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. (pārusya⁶⁴ 11-14) contains the following remarkable passage : ' If a śvapāka, a meda, a caṇḍāla, one devoid of a limb, one gaining livelihood by killing animals, an elephant driver, vrātya (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 Yaj. 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 offences⁶⁵.

Something must be said about the law of Limitatioṇ In the smṛtis and digests rules of Limitation play very little part for several reasonṣ As on spiritual grounds, 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 Yaj. 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 smṛtis and dharmaśāstras, under the influence of religious and other-worldly considerations always lean against 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 limitatioṇ For example, Kaundinya ⁶⁶ ( quoted in V. Mātrakā 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 creditor 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 loss 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 Vedaṣ Vide Gaut. XII. 35–36, Vaṣ 16. 18, Manu VIII 149, Yaj 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 anūhita, nyāsa and pratiṇyāsa, in the case of these also there would be ordinarily no bar of limitatioṇ Vide Manu VIII. 145–146, Yaj II. 58, Viṣṇu 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. Acc. to Vyāsa ⁶⁷ this rule would not apply to what is lent to friends, relatives, brāhmaṇas and the servants of the king on their request 4. It appears that a period of twenty years was prescribed for avoiding a document on the ground of patent defects by one who had seen it and was affected by it Vide Kāṭ 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 challage 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 Kāṭ (299)⁶⁸. 5. A deed settling a boundary dispute becomes unassailable after twenty yearṣ Vide Kāṭ. (301)⁶⁹ 6. No suit can lie on a document 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)⁷⁰.

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-śāstras evolved during the course of centuries an indigenous system of judicial procedure of a high order Nārada, Brihas-pati and Kātyāyana represent 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 centuries 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 punishmentṣ This system compares most favour-ably with any system of judicial procedure prevalent anywhere in the West up to the 18th century A. D.