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Social and Political Life in the Vijayanagara Empire (A.D. 1346 – A.D. 1646) v1.c13.s1: Section 1. Classical and Vijayanagara Theory of Daṇḍa

Social and Political Life in the Vijayanagara Empire (A.D. 1346 – A.D. 1646) v1.c13.s1

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English

Section 1. Classical and Vijayanagara Theory of Daṇḍa

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ONE of the questions which naturally arises in connection with the history of the Hindu kingdom of Vijayanagara is that relating to the administration of justice. This brings us to the topic of the adherence of the Vijayanagara monarchs to classical principles as recorded in the *dharma-śāstras*. The subject of justice and punishment, as is well known to students of Hindu polity, is treated in the *smṛtis* under the caption of *daṇḍa*. Gautama thus defines *daṇḍa*: "They declare that (the word) *daṇḍa* (rule or punishment) is derived from (the verb) *damayati* (he restrains); therefore he shall restrain those who do not restrain themselves".¹ While admitting the inherent weakness of human nature and the tendency it has to over-ride the limits imposed obviously by the State on behalf of society, Gautama also makes provision for a moderate dispensation of justice, especially as regards punishments, in his statement that the king shall only restrain those who do not know how to restrain themselves. Moderation, therefore, is one of the features of the *daṇḍanīti*. There is another feature of the ancient system which may enable us to understand the Vijayanagara theory and practice of *daṇḍa*. This relates to the free access which the people had in making a direct appeal to the king. In the account of the *rājasūya* as described in the *Śatapatha Brāhmaṇa*, we are told that one of the results accruing from the performance of that sacrifice makes the king the lord of law, and that the supreme state (*paramatā*) is that in which the people can approach the king in matters of law.² The right of direct appeal advocated in the *Śatapatha Brāhmaṇa* is to be borne in mind in our estimate of the methods of administering justice under Vijayanagara.

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¹ Gautama XI, 28, p. 238. This is of course an ingenious definition.

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² Sat. Brāh., P. III, V., 3, 3, 9, p. 71; Ghosal, Hind. Pol. Theor. p. 40 (1st ed.) For the importance of the *Rājasūya* sacrifice, Sat. Brāhmaṇa, P. III, p. 42, seq.

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The opinion of Gautama that meting out punishment is a necessary attribute of the State is to be traced to Manu, who explains thus the importance of *daṇḍa*: "For the (king's sake, the Lord formerly created his own son, Punishment, the protector of all creatures (an incarnation of) the law, formed of Brahman's glory. Through fear of him all created beings, both the immovable and the movable, allow themselves to be enjoyed, and swerve not from their duties".¹ The necessity of instituting the law of punishment is seen in the security it gives to all the four orders. "Punishment is (in reality) the king and the male, that the manager of affairs, that the ruler, and that is called the surety for the four orders' obedience to the law. Punishment alone governs all created beings, punishment alone protects them, punishment watches over them while they sleep; the wise declare punishment (to be identical with) the law".² Then again Manu says: "The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyment (which it owes)".³

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¹ Manu, VII, 14, 15, p. 218; Ghosal, Hind Pol. Theor. p. 166. (1st ed.)

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² Ibid., VII, 17-18, p. 219. See also Gautama, XI, 29-31, p. 238; Vishnu, III, 90-5, pp. 22-3; Sukraniti, IV, 11. 92-8, pp. 130-1.

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³ Manu, VII, 22, p. 219.

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But Manu does not advocate indiscriminate or untimely punishment: "If (punishment) is properly inflicted after (due) consideration, it makes all people happy; but inflicted without consideration, it destroys everything".⁴ "Having fully considered the time and the place (of the offence) the strength and the knowledge (of the offender) let him justly inflict that (punishment) on men who act unjustly".⁵ Manu, therefore, conceives of daṇḍa as the motive force which keeps the different classes of society in perfect order, and invests it with an antiquity and importance which make it an inevitable attribute to the rājadharma.⁶

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⁴ Ibid., VII, 19, p. 219.

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⁵ Ibid., VII, 16, p. 218.

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⁶ Ghosal, ibid., p. 107 (1st ed.)

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This orthodox view of the great lawgiver is to some extent modified by Kauṭilya, who brings into relief the suggestion of Manu that justice should be tempered with mercy. Kauṭilya advocates the following: "... for whoever imposes severe punishment becomes repulsive to the people; while he who awards mild punishment becomes contemptible. But whoever imposes punishment as deserved becomes respectable. For punishment (daṇḍa), when awarded with due consideration, makes the people devoted to righteousness and to works productive of wealth and enjoyment; while puishment, when ill-awarded under the influence of greed and anger or owing to ignorance, excites fury even among hermits and ascetics dwelling in forests, not to speak of householders".¹ But Kauṭilya was not unaware of the supreme necessity of instituting punishment for the maintenance of social order. "But when the law of punishment is kept in abeyance, it gives rise to such disorder as is implied in the proverb of fishes (*mātsyanyāyamudbhavayati*); for in the absence of a magistrate (*daṇḍadharābhāve*), the strong will swallow the weak; but under his protection the weak resist the strong".²

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¹ *Arthaśāstra*, Bk. I., Ch. IV, 9, p. 9.

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² *Ibid.*

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With that spirit of compromise which is so characteristic of him, Sukra gives to us the mediaeval conception of *daṇḍa* thus: "Daṇḍa is restraint and punishment, hence the king is also known to be Daṇḍa. The Niti that regulates punishment constitutes Daṇḍanīti, Niti so called because it governs and guides".³ This may be considered along with the earlier definition given by Kauṭilya: "That sceptre on which the wellbeing and progress of sciences of Anvīkṣhakī, the triple Vēdas, and Vārtā depend is known as Daṇḍa (punishment). That which treats of Daṇḍa is the law of punishment of science of government (daṇḍanīti)".⁴ Obviously the reference here is to the importance of *daṇḍa* in the social life of the people as suggested by Manu.

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³ *Sukranīti*, I, ll. 313-4, p. 22. For a further evolution of the theory of *daṇḍa*, see Ghosal, *Hind. Pol. Theor.* pp. 228-9, (1st ed.); pp. 59-60, 104-5, 151 (2nd ed.); Sarkar, *Pos. Back.* Bk. II, P. I, p. 31; also his *Pol. Institutions and Theories of the Hindus* (Leipzig, 1923); Dr. D. R. Bhandarkar, *Some Aspects of Ancient Hindu Polity*, (Calcutta, 1929).

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⁴ *Arthaśāstra*, Bk. I, Ch. IV, 9, p. 8.

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Having ascertained the prominence given to the theory of punishment in the political writings of the Hindu theorists, we may now gather a few details about the constitution of a court of justice as understood by the lawgivers. Manu advocates personal investigation by the monarch. "A king desirous of investigating law cases must enter his Court of Justice, preserving a dignified demeanour, together with the Brāhmaṇas and with experienced councillors. There, either seated or standing, raising his right arm, without ostentation in his dress and ornaments, let him examine the business of suitors, daily (deciding) one after another (all cases) which fall under the eighteen titles of (the law)

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according to principles drawn from local usages and from the institutes of the sacred law".¹ When the king is unable to investigate personally law-suits, Manu ordains the appointment of a law-court. "But if the king does not personally investigate the suits, then let him appoint a learned Brāhmaṇa to try them. That (man) shall enter that most excellent court, accompanied by three assessors, and fully consider (all) causes (brought) before the (king), either sitting down or standing. Where three Brāhmaṇas versed in the Vedas and the learned (judge) appointed by the king sit down, they call that the court of (four-faced) Brahma".²

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¹ Manu, VIII, 1-2, p. 253. ² Ibid., VIII, 9-11, p.

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This served as the basis of the composition of law-courts of the later theorists, some of whom, as for example Gautama, have considerably increased the number of persons who were to constitute a court of justice. According to Gautama: "They declare, that an assembly (parisad shall consist) at least (of) the ten following (members, viz.) four men who have completely studied the four Vedas, three men belonging to the (three) orders enumerated first, (and) three men who know (three) different institutes of law. But on failure of them decision of one Śrotriya who knows the Veda and is properly instructed (in the duties, shall be followed) in doubtful cases".³ Baudhāyana explains the concluding idea of Gautama, thus: "There may be five or there may be three, or there may be one blameless man, who decides (questions regarding) the sacred law. But a thousand fools (can) not (do it)".⁴ Śukra enlarged the scope of a court in these words: "A court of justice is that place where the study of the social, economic, and political interests of man takes place according to the dictates of Dharma Śāstras".⁵

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As regards the authorities which are to guide the judges who constitute a law-court, we have the following in Gautama: "His (i.e. the king's) administration of justice (shall be regulated by) the Veda, the Institutes of the Sacred Law, the Aṅgas and the Purāṇas".⁶ Vishnu enumerates the qualifications of a judge thus: "Let the king appoint as judges men of good families, for whom the ceremonies (of initiation and so forth) have been performed, and who are eager in keeping religious vows, impartial towards friend and foe, and not likely to be corrupted by litigants either by (ministering to their) lustful desires or by (stimulating them to) wrath or by (exciting their) avarice or by other (such practices)".¹ The lawgivers have also set down rules governing the qualifications of witnesses.²

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²⁵⁴ According to Manu a Śūdra can never interpret the law. VIII, 20, p. 255. ³ Gautama, XXVIII, 49-50, p.

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³¹⁰ Cf. Vasiṣṭha, III, 7, 20. pp. 17, 20. ⁴ Baudhāyana, I, 1, 1, vv. 6-9, pp. 143-4. ⁵ Śukranīti, IV, II, 83-4, pp. 186-7. ⁶ Gautama, XI, 19, p. 237.

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¹ Viṣṇu, III, 74, pp. 20-1. ² Manu, VIII, 62-3, 68-78, pp. 264-5, 266-8, 299, 300; Gautama, XIII; p. 246 seq. ³ Gautama, XII, 51, p. 245; Cf. Vasiṣṭha, XIX, 8-10, p. 97. ⁴ Viṣṇu, V, 194-5, p. 41.

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They are unanimous in their opinion that punishment should be in proportion to the crime committed. Gautama says: "The award of punishment (must be regulated) by a consideration (of the status) of the criminal, of his (bodily) strength, (of the nature) of the crime, and whether the offence has been repeated".³ Viṣṇu ordains that the king should consult the Brahmans when awarding punishment. "Let the king dictate due punishments for other offences also, after having ascertained the class and the age (of the criminal) and the amount (of the damage done or sum claimed), and after having consulted the Brāhmaṇas (his advisers)".⁴

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From classical theory we may now turn to the Vijayanagara conception of *daṇḍa* as recorded by Kṛṣṇa Dēva Rāya the Great in his *Āmuktamālyada*. The rough sketch of the classical theory of *daṇḍa* given above enables us to understand that, among other things, the ancients insisted on the institution of punishment for the welfare of society: that its importance was such that they surrounded it with the divinity which was always associated with the person of a monarch; that they enacted that the king or his councillors, while executing it, should be guided by considerations of the nature and time of the crime committed, and the ability of the guilty man to bear punishment; that the ruler should consult a body of learned Brahmans; and that the people were allowed the right of making a direct appeal to the king.

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Kṛṣṇa Dēva Rāya's elucidation of the nature and importance of punishment was, on the whole, in accordance with the classical notions. "The wife's attachment to her husband, the proper relations between men and women, the ascetic subduing his indriyas, the lower castes showing deference to the higher, the servant looking carefully to the interests of the master, you should know that all these are brought about (ultimately) by the fear of the king's punishment".¹ It is evident that the monarch is referring to the importance of daṇḍa in the social life of the people in the above statements. He further says: "It is essential that a king should be able to enforce his commands. Even the Ābhīras and the Bhillas of the forest are able to enforce their orders, as by the sign of the arrow and the piece of thread. Much more therefore is it necessary that an emperor (Sārvabhauma) should be able to enforce his commands".²

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¹ Amuktamālyada, v. 377; J.I.H. IV., P. III, p. 75.

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² Ibid., vv. 206; ibid., p. 65.

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To the classical idea of balancing punishment with mercy, Kṛṣṇa Dēva Rāya adds a clause which was to some extent an advance on the ancient theory of daṇḍa. The lawgivers opine that the time and place where the offence was committed together with the nature of the culprit are to be taken into consideration; the Vijayanagara monarch declares that the criminal should be given the chance of appealing thrice to the king. "In the matter of people sentenced to death give them the chance to appeal thrice (for mercy)". But this leniency is not to be shown to those who plot against the State. The ruler continues: "But in the case of those people whose escape might bring calamity to yourself immediate execution is advisable".³ In the matter of administering justice and of executing the royal decree, he shows that he is not unacquainted with human nature. "If a king were to propitiate his guards with presents and hands over to them for custody a thief whose guilt has been proved without immediate punishment and if when he escapes, the guards bring before the king another in his place and punish him, as the story of the stout merchant on the spear, will not the king's infamy increase?".⁴ If this may be taken to be a defect in Vijayanagara system of administering justice, because it admits the possibility of the State officers being corrupted by outside agencies, it may also be interpreted to mean that the rulers were prepared to meet such a contingency in order to maintain law and order in the land.

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³ Ibid., v. 243; ibid., p. 70.

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⁴ Ibid., v. 239; ibid., p. 69.

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