The Mauryan Polity c8.s4.t4: Capital punishment

The Mauryan Polity c8.s4.t4

Language: English

Capital punishment

c8.s4.t4.1

Punishments were of different kinds: fines, imprisonment, mutilation and death penalty.¹ It is often remarked that the Kauṭaliya does not mention the method of trial by jury but recommends torture to the suspected persons to elicit confession of guilt.² The statement is of course misleading, and is the result of a wrong interpretation of the Arthaśāstra texts. The chapter entitled vākyakarmānuyoga³ means ‘examination on evidence and action to be taken thereon.’

c8.s4.t4.2

¹ Bk. IV, ch. 2. See R.E. V, Corpus, p. 19; IV Pillar Edict, Corpus, p. 123.

c8.s4.t4.3

² Early History of Bengal, p. 109.

c8.s4.t4.4

³ Bk. IV, ch. 8. Shāma Śāstri translates: ‘Trial and torture to elicit confession’; Monahan ‘the questioning of an accused person by word and by act’.

c8.s4.t4.5

The technical sense in which the word karma is used, is ‘examination’ or ‘cross-examination’ and does not mean ‘torture’.⁴

c8.s4.t4.6

⁴ The technical term for ‘torture’ is parikleśa the palikleśa of Aśokan inscriptions. Hultzsch who takes ‘karman’ in the Kauṭaliya in the sense of ‘torture’ is obliged to interpret parikleśa—‘harsh treatment’: The inscription runs thus: bandhanam va paliklesam (Corpus, p. 93) meaning imprisonment or torture. Parikleśa cannot be merely ‘harsh treatment’ for two reasons: First imprisonment itself is harsh treatment; secondly parikleśa in the sense of ‘torture’ to which Senart and Lüders agreed, is found used in the Arthaśāstra (IV-9). According to the latter authority the superintendent of the jail was liable to be punished if he would imprison persons without assigning reasons, torture them and kill them. See also R.E. V where imprisonment, death and torture seem separately referred to in the terms bandhana, vadha, and palibodha, bandhana—badhasa paṭvidhanay (e) apalibodhaye mo(ksaye) ayi anuba. (Corpus, p. 56.) See also Mookerjee’s Aśoka, p. 143, note 2.

c8.s4.t4.7

The interpretation of the title of the chapter goes a long way in settling an important issue. A careful study of the chapter in the light of the above interpretation goes to prove that only avowed culprits were ubjected to torture and not the ‘suspected’.¹ Kauṭalya no doubt does not mention the ordeals of fire, water, etc., recommended in the law-codes. These ordeals were in vogue for long after Kauṭalya. Hence the author of the *Arthaśāstra* could not be charged with ignorance of that age-long institution. What is therefore reasonable to infer is that Kauṭalya regarded these ordeals as questionable expedients, the application of which was restricted to cases involving more than a thousand *paṇas*² and introduces the more healthy method of judicial enquiry, thus sowing the seeds of the modern jury system. That punishment was meted out only after the guilt had been proved is evident from the following, among other statements of the Kauṭalīya. It is said that the guilt of a suspected person should be proved by the production of such evidence as the instruments used in committing the crime, accomplices and abettors, the stolen articles and persons concerned in their sale or purchase. In the absence of such evidence the accused should be acquitted.”³

c8.s4.t4.8

¹ See also *Proceedings of Third Or. Conf.*, pp. 628-29; *Hindu Adm. Inst.* p. 236-ff.

c8.s4.t4.9

² Yāj. II. 101.

c8.s4.t4.10

³ śaṅkāniṣpannamupakaraṇamantrisahāyarūpavaiyāvṛtyakarānniṣ-pādayet| karmaṇaśca pradeśadravyādānāṃśavibhāgaiḥ pratisamānayet| eteṣāṃ kāraṇānām anabhisandhāne vipralapantamacoraṃ vidyāt|

c8.s4.t4.11

Here there is no mention of torture to elicit confession of a crime. On the other hand there is evidence to show that the judge was empowered to act on the circumstantial evidence which any judicial enquiry must take into account. This is corroborated by another equally important statement—

c8.s4.t4.12

*āptadoṣam karma kārayet* meaning that action was to be taken only in case where guilt had been proved, and not in doubtful cases. Thus torture is recommended as a kind of punishment for proved cases.

c8.s4.t4.13

The nature of capital punishments in practice in the 4th century B.C. in India and the principle on which such punishments were inflicted are clearly furnished in the chapter on *śuddhścitraścadaṇḍakalpaḥ* of the *Kauṭaliya*.¹ Death-penalty was not the rule. Two classes of criminals are distinguished—those who are cruel in their offences, and those who are not cruel. Death-penalty without torture to the former is recommended. Even in this prescription the *Arthaśāstra* distinctly mentions that this ruling had the authority of the *śāstras* behind.²

c8.s4.t4.14

¹ Bk. IV, ch. 11.

c8.s4.t4.15

² ete śāstreṣvanugatāḥ kleśadaṇḍo mahātmanām| akliṣṭānām tu pāpānām dharmyaḥ śuddhavadhassmṛtaḥ||

c8.s4.t4.16

Again in inflicting banishment to the Brahman culprits, Kauṭalya shows himself a follower of the *Dharmaśāstras*. Thus it is seen that this, as in other respects, Kauṭalya has not broken any fresh ground but has consistently adopted the basic principles of the *Dharmaśāstras*.

c8.s4.t4.17

That there was judicial trial for criminal suspects and that judgment was passed on the strength of the evidence is obvious from the Fourth Pillar Edict of Aśoka. Though one of the punishments involved death-penalty, still a grace (*yote*) of three days was granted to those on whom the sentence of death had been passed.³

c8.s4.t4.18

³ ava ite pi cha me āvuti baṃdhana-badhānaṃ munisānaṃ til(i)ta-daṃḍānaṃ pata-vadhānaṃ timni divasā(n)i me yote dimne|—Corpus, p. 123.

c8.s4.t4.19

There is an exaggerated statement in the *Aśokavadāna* where Aśoka is said to have totally abolished capital punishment on account of his repentance for having caused death to a monk who was his own unfortunate brother.¹ How this statement has no basis in fact is proved by the inscriptions themselves where the sentence of death is recognized as the punishment for extreme forms of criminal offence. But Aśoka was prepared to mitigate the severity of punishment provided somebody interested in the culprit would get the sentence revoked by satisfying the judicial officers concerned as to their innocence. This reminds us of Kauṭalya’s advocacy of the release of prisoners on payment of proper compensation price.²

Linked texts (3)

Yājñavalkyasmṛti — Yājñavalkya, Sanskrit
Divyāvadāna — Sanskrit
Aśokāvadāna — Sanskrit