History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c20.133
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v2.c20.133
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(4) ‘The king should exonerate (the brāhmaṇa) in the six matters, viz. (a brāhmaṇa) should not be beaten (whipped), he should not have fetters put on him, he should not be mulcted in fines of money, he should not be driven out (of the village or country), he should not be censured, he should not be abandoned’—Gaut. VIII.³¹⁴ 12-13. The Mit. on Yāj. II. 4 explains that these words are not applicable to every brāhmaṇa, but only to deeply learned brāhmaṇas described in the preceding sūtras (Gaut. VIII. 4-11). Haradatta adds that even a learned brāhmaṇa is treated in this way only if he commits an offence without pre-meditation but only through ignorance or oversight. As to corporal punishment for brāhmaṇa offenders, the matter stands thus. Gaut XII. 43 says that there is no corporal punishment for a brāhmaṇa (even when he being a thief comes to the king confessing his guilt and asking the king to beat him with a heavy club on the head). Vide Manu XI. 99-100 also. Baud. Dh. S. (I. 10. 18-19) first lays down that a brāhmaṇa is to undergo no beating for any offence but allows for a brāhmaṇa guilty of the mortal sins (of brāhmaṇa-murder, incest, drinking liquor, theft of gold) the punishment of branding on the forehead with red-hot iron and banishment from the country. Manu IX. 237 (= Matsyapurāṇa 227. 163-164), Viṣṇu Dh. S. V. 4-7 prescribe the various figures that were to be branded on the forehead of a brāhmaṇa in the case of various offences. Manu (VIII.
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379-380) prescribes shaving of the head for brāhmaṇa offenders where others would have had to suffer the extreme penalty of death and adds that a brāhmaṇa was not to be sentenced to death whatever offence he might have committed and that he is to be banished from the country taking with him all his possessions. Even on this the Mit. (on Yāj. II. 81) observes that it applies only when it is the brāhmaṇa's first offence (i. e. he may be fined for repeating an offence). Yāj. (II. 270), Nārada (sāhasa, verse 10) and Śaṅkha³¹⁵ prescribe branding and banishment as punishment for brāhmaṇas (particularly in the case of theft). The brāhmaṇa was never above being fined. Manu (VIII. 123) prescribes fine and banishment for a perjured brāhmaṇa witness, while Manu VIII. 378 prescribes heavy fines for a brāhmaṇa guilty of rape or adultery. The Mit. on³¹⁶ Yāj. II. 302 quotes a verse of Manu (not found in the extant Manusmṛti) that in the case of the brāhmaṇa corporal punishment takes the form of complete shaving of the head, he is liable to banishment from the town, he may be branded on the forehead and he may be made to ride through the town on the back of an ass (looked upon at all times as the highest form of indignity). Kauṭ. also³¹⁷ (IV. 8) forbids corporal punishment for brāhmaṇas in all offences but prescribes branding on the forehead in the same way as Manu (IX. 237) and also banishment and labour on mines. But Kauṭ. makes an exception, viz.
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he allows a brāhmaṇa to be drowned in water if he is guilty of high treason, or of forcible entry in the king's harem or of inciting the enemies of the king &c. Kātyāyana³¹⁸ (quoted by Viśvarūpa on Yāj. II. 281) prescribes death sentence even for a brāhmaṇa when the latter is guilty of the destruction of a foetus, of theft, of striking a brāhmaṇa woman with a weapon and of killing an innocent woman. The Mit. on Yāj. III. 257 thinks it possible that kings sentenced brāhmaṇas to death in spite of the prohibition of corporal punishment and we have a classical illustration in the death sentence passed on the brāhmaṇa Cārudatta by king Pālaka in the Mṛcchakaṭika (IX). The foregoing discussion shows that the only special privilege claimed for the brāhmaṇa in the law courts of the land was freedom from death sentence or other corporal punishment like whipping, though rarely he was liable to be sentenced to death also. He was subject to the indignities of branding and being paraded on the back of an ass, to fines and banishment. These claims were very moderate as compared with the absurd lengths to which the doctrine of 'benefit of clergy' was carried in England and other western countries.³¹⁹ The clergyman in England was not by birth, he had to be ordained. Yet clergymen claimed that an ordained clerk, a monk or nun charged with serious offences called felonies could be tried only by an ecclesiastical court and this was conceded by the ordinary courts;
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this privilege was gradually extended to persons not ordained viz. to doorkeepers, readers, exorcists (all of whom merely assisted the clergy) and finally to all who could read or pretended to read a few words from the Bible. Holdsworth, Pollock and Maitland admit that the procedure in the ecclesiastical courts was little better than a farce (P and M vol. I. p. 426, Holdsworth vol. III p. 296). The ecclesiastic courts never pronounced a judgment of blood, the bishop only deprived the offending clerk of orders, and relegated him to a monastery, or kept him in prison for life or a shorter period and very rarely whipping and branding were ordered. Even in the first quarter of the 20th century, European British subjects and Europeans and Americans in general could claim in British India some startling privileges when charged with criminal offences which even the brāhmaṇas of over two thousand years ago did not claim. For example, under Sec. 443 of the Criminal Procedure Code of India (as it existed before 1923) they could not be tried by any Indian Magistrate (however senior and experienced) and that in serious cases like murder, even a Sessions Judge who was himself an European British subject could not sentence an European British subject to more than one year's imprisonment (Section 449).
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Any European or American could claim to be tried by a mixed jury of which not less than one half had to be Europeans or Americans, while an Indian offender could not claim the privilege in his own country that not less than one half of the jury that tried him must be Indians. In England even now a peer indicted for treason or felony must be tried by his peers and not by the tribunals that try ordinary men (vide Halsbury's Laws of England, 2nd Ed. vol. 25 p. 46). The brāhmaṇas had to submit to trial in the ordinary courts and the smṛtis do not generally provide for trial of brāhmaṇas in special ecclesiastical courts of their own class. The only approach to this western doctrine of benefit of clergy is to be found in the Āp. Dh. S.,³²⁰ where it is said that the teacher and others who have authority over a brāhmaṇa guilty of transgressions should prescribe prāyaścittas for him: if he does not abide by their orders, he should be taken to the king who should hand him over to his own *purohita*; the latter was to prescribe prāyaścittas (penances for atonement) for brāhmaṇa offenders. If the latter did not carry out the penances then he was to break them by disciplines according to their ability except that he (the purohita) was not to prescribe corporal punishment and slavery for brāhmaṇa offenders.