History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.471
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.471
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Manu VIII. 129, Yāj. I. 367 and Bṛ. (S. B. E. 33 p. 387 verse 5), Vṛddha-Hārīta (7.195) speak of four methods of punishment (*daṇḍa*) viz. by gentle admonition, by severe reproof, by fine and by corporal punishment and declare that these punishments may be inflicted separately or together according to the nature of the offence.⁶²¹ The first takes the form of saying, 'you have not done a proper thing', the 2nd 'fie upon you who are a wrongdoer and guilty of *adharma*'. Bṛ. lays down that preceptors, *purohitas* and sons should be sentenced to the punishment of wordy admonition, other persons who engage in disputes should be punished with reproof or fines and those guilty of mahāpātakas should be punished with corporal punishment. That admonition and reproof were two modes of punishment shows that ancient writers were alive to the notion that among very sensitive persons or in a very sensitive society verbal condemnation would be enough to achieve the main purposes of punishment. Bṛ. (SBE vol. 33. p. 388 verse 8) states that the first two are within the privilege of the brāhmaṇa (appointed as chief justice) but fines and corporal punishment are to be inflicted by the king (on the recommendation of the chief justice, *prāḍvivākamate sthitaḥ*). The Mṛcchakaṭika (IX) bears this out when the judge says 'We have authority only to pronounce the judgment; as to the rest the king is the final authority' (*nirṇaye vayaṁ pramāṇaṁ śeṣe tu rājā*). Gaut. XII. 51, Vas. 19. 9, Manu VII.
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16, VIII 126 and Yāj. I. 368 (=Vṛddha-Hārīta VII. 195-196), Bṛhat Parāśara p. 284, Kauṭ. IV. 10 lay down that the award of punishment must be regulated by a consideration of the motive and nature of the offence, the time and place, the strength, age, conduct (or duties), learning and monetary position of the offender and by the fact whether the offence⁶²² is repeated. This provision means that the dharmaśāstras did not hold that the same punishment must be meted out for the same offence irrespective of the antecedents, characteristics or physical and mental condition of the offender. They always took extenuating circumstances into account. Kauṭ. (I. 4), differing from the view of the ācāryas that there is nothing like daṇḍa for bringing under one's complete control all beings, gives his own opinion that, as a king whose control and punishments are most severe makes the subjects disgusted with him and as the king who deals mild punishments is disregarded by the people, the king should distribute punishments according to the deserts of the offenders and would then command respect.⁶²³ One reason why some of the works on dharmaśāstra prescribe mild punishments is the doctrine of *karmavipāka* (a man committing certain sins is born in the next life afflicted with certain diseases or bodily deficiencies or is born as a low or filthy beast or bird). Vide Manu XI. 49-52, Yāj. III 207-216, Viṣṇu Dh. S. 44-45. This doctrine will be dealt with later on under *pātaka* and *prāyaścitta*.
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Gaut. XII. 48 first provides that the king must take into account, when awarding punishment to the criminal, his physical or monetary circumstances, the nature of the crime, the fact of repetition of the crime and then adds that the king should award punishment after consulting an assembly of learned brāhmaṇas. The Daṇḍaviveka (p. 36) quotes a verse in which the considerations that should weigh in awarding punishment are brought together viz. the offender's caste (as in Manu VIII. 337-338 for theft), the value of the thing, the extent or measure (as in Manu VIII. 320), use or usefulness of the thing with regard to which an offence is committed (as in Manu VIII. 285), the person against whom an offence is committed (such as an idol or temple or king or brāhmaṇa), age, ability (to pay), qualities, time, place, the nature of the offence (whether it is repeated or is a first offence). The Rājatarangiṇī (VIII. 158) provides that in disputes where parties are in doubt as to their rights it is proper to award punishment with forbearance but where a man starts on an evil path of set purpose (the king and officers) must award severe punishment. In modern times there are controversies among several schools of criminology. Some hold that every man has freedom to act criminally or not or to act in the way he does and that each man has complete moral responsibility for his own acts.
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On the other hand there are some who go to the other extreme and propound that a so-called criminal act is mostly due to biological, physiological, pathological or sociological conditions, to the upbringing and environment of the person charged with crime. They favour determinism. The ancient Indian writers do not enter into these speculations. But when they said that regard must be paid to time and place and other considerations they were faintly conscious of or were groping towards the ideas of the 2nd school.