History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.23

v4.c63.23

³³² The exact meaning of the four kinds of torture is not clear. Prof. V. R. Dikshitar in 'Hindu Administrative Institutions' pp. 237-247 tries very hard to establish that Kauṭ. recommends no torture in any case, that '*vākyānuyoga*' means 'pronouncing of guilt by the jury' and *karmānuyoga* means 'judgment of the Chief Justice'. Though the learned Professor's attempt to exculpate Kauṭilya may be due to laudable motives, the words of Kauṭilya are too clear to admit of any other interpretation than the one given above. If one dispassionately considers the fact that no *karma* was allowed to be employed in the case of the weak, the diseased, old men &c., that in the case of women '*ardhakarma*' alone was allowed, that a heavy fine was imposed for causing death by *karma* (*karmaṇā vyāpādanena*). *(Continued from the last page)* that Māṇḍavya, though really not a thief, declared that he was so through the fear of the torments of *karma* (*karmakleśabhayāt*), that in the four karmas we find suspension and water-tube and that immediately after the words '*karma kārayet*' we get the rule that in all crimes the brāhmaṇa was not to be subjected to bodily pain, it will have to be admitted that '*karma*' in this chapter of the Arthaśāstra means 'torture'. One fails to see what '*ardhakarma*' in the case of women will mean if '*karma*' signifies only the judgment of the chief justice or why Māṇḍavya should have confessed theft through fear of '*karmakleśa*'. And one need not feel apologetic if Kauṭilya recommends torture in certain well-defined cases. Torture was an essential part in the Roman Criminal Procedure and Augustus had issued an edict about it. Vide Stephens' 'History of English Criminal Law' vol. I. pp. 47-49. Torture by the police and third-degree methods are not unknown in the 20th century in the West (even apart from the latest German methods) or in India, though they are not expressly mentioned in any text-book or Act as allowable. Vide Harry E. Barnes' 'Story of Punishment' pp. 10-15 for various kinds of tortures employed in the West for several centuries and third-degree methods (pp. 15-24), which he asserts are even now in almost universal use by the Police Department in the U. S. A. The story of Māṇḍavya who though not a thief was held to be a thief, because he, owing to his vow of silence, did not reply when questioned and near whom was found the booty stolen and who was impaled, is found in Ādi. 63. 92-93 (cr. ed. chap. 57), Ādi. 107-108 (cr. ed. chap. 101), Anuśāsana 18. 46-50 and in Nār. (I. 42) and Bṛ. quoted by Aparārka (p. 599). शू‍ले प्रोतः पुराणर्षिश्चोरश्चोरशङ्कया । अणीमाण्डव्य इत्येवं विख्यातः सुमहायशाः ॥ आदि 63. 92-93. Kauṭ. IV. 8 appears to have had a different version of the story before him. The Mārkaṇḍeyapurāṇa chap. 16 has the story of Aṇimāṇḍavya. The story of Māṇḍavya was a leading case, it appears, in criminal law. The Mṛcchakaṭika (Act IX. 36) appears to refer to torture.