History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.464
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.464
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The ancient smṛti writers were quite aware of the several purposes served by punishments for crimes,⁶¹⁶ 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 wants.616a In all ancient societies the *lex talionis* (the law of retaliation, viz. an eye for an eye, a tooth for a tooth) prevailed.⁶¹⁷ Manu VIII. 280 (which is almost the same as Nār., pāruṣya, verse 25), Yāj. II. 215, Viṣṇu Dh. S. V. 19 and Śaṅkha-Likhita prescribe that with whatever limb⁶¹⁸ 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 (*daṇḍa*) has already been dwelt upon in the section on *rājadharma* (p. 21).
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The end sought to be served by punishment was the protection of society and the securing of its happiness. The Śāntiparva (15.5-6) remarks that people do not commit sins through fear of punishment at the hands of the king, through fear of Yama and of the next world and through fear of others (i. e. public opinion).⁶¹⁹ Gaut. XI. 28 derives the word *daṇḍa* from the root *dam* to restrain or to deter. This purpose of punishment is well brought out in the Mṛcchakaṭika (X) when the sentence passed on Cārudatta for the alleged murder of Vasantasenā is proclaimed to the citizens by the executioners.⁶²⁰ 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 evildoer. The punishment was deemed to be a sort of expiation, which purged the man of sinful promptings and reformed his character. Manu VIII. 318 (=Vas. 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.
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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 Bṛ. 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 extremities. 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 I. I. pp.
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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 legislation of the 18th century in criminal matters was severe to the highest degree and destitute of any sort of principle or system' (His. 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 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).