History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.480
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.480
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III. 243) states that⁶²⁸ an old man over eighty, a boy below sixteen, women and persons suffering from diseases are to be given half prāyaścitta and Śaṅkha quoted by the Mit. (on the same verse) that a child less than five commits no crime nor sin by any act and is not to suffer any punishment nor to undergo a prāyaścitta⁶²⁹. Under the Indian Penal Code, sec. 82, nothing is an offence which is done by a child under seven years of age. The severity of punishment depended on caste also. In the case of theft, Gaut. XII. 15-16, Manu VIII. 338-39 prescribe that a vaiśya, a kṣatriya and a brāhmaṇa should respectively be fined twice, four times and eight times of the fine to be imposed upon a śūdra for a theft, since each of these is deemed more and more aware of the heinousness of the crime. Kāt. (485) and Vyāsa state this as a general rule for all offences⁶³⁰. In the case of abuse and defamation the scales are turned in favour of the higher castes as regards fines. Gaut. XII. 1, 8-12, Manu VIII. 267-268 (=Nār. pāruṣya 15-16), Yāj. II. 206-207 prescribe that a kṣatriya or a vaiśya or a śūdra abusing or defaming a brāhmaṇa was to be respectively punished with the fine of 100 paṇas, 150 paṇas and with corporal punishment (cutting off the tongue), while a brāhmaṇa defaming a kṣatriya, vaiśya or śūdra was to be fined 50, 25 or 12 paṇas respectively (nothing in the last case acc. to Gaut. XII. 13).
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In the case of adultery and rape the caste of the offender and of the woman concerned made great difference in the punishment awarded. For adultery with a woman of the same caste Yāj. II. 286 prescribed the highest amercement, the middling one when the paramour was of a higher caste, but if the male be of a lower caste than the woman, the male offender was sentenced to death and the woman had her ears cut off. Corporal punishment assumes (as pointed out by the Daṇḍaviveka p. 20) various forms according as it is meant to cause only harassment (pain) or is carried out by cutting off (or destroying) a limb or to cause death. Harassment or pain may be inflicted by imprisonment, beating, putting fetters, by making ridiculous (by the complete shaving of the head, declaring the offence by beat of drum in the presence of the convict, parading him through the streets on an ass) and marking him with signs indicative of offences like theft. Manu (VIII. 125) provides that punishment may fall upon any one (or more) of ten places in the case of the three higher castes, viz. the private parts, the belly, the tongue (either whole or half), the hands, the feet, the eyes, the nose, the ears, wealth and the whole body; but a brāhmaṇa shall depart unhurt from the country (i. e. he is to be only banished). Bṛ. (SBE. 33 p.
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388 verses 9-10) speaks of fourteen places of punishment adding the neck, the thumb and index, the forehead, the lips, the hind part, hips, one half of the feet (to Manu's ten) and omitting wealth and the whole body therefrom. Gaut. XII. 43, Kauṭ. IV. 8, Manu (VIII. 125, 380-381), Yāj. II. 270, Nār. (sāhasa, 9-10), Viṣṇu V. 1-8, Bṛ. (SBE. vol. 33 p. 388 verse 11), Vṛddha-Hārīta VII. 191 prescribe that a brāhmaṇa was not to be sentenced to death or corporal punishment for any offence whatever, but if he were guilty of an offence deserving the death penalty, he was to be punished by ordering his entire head to be shaved, he might be banished from the country (from the city acc. to Nār.), a mark appropriate to the grave sin committed by him might be branded on his forehead and he might be paraded on an ass.⁶³¹ Yama,⁶³² quoted by Sm. C. and V. P., while providing that a brāhmaṇa was to be free from undergoing corporal punishment, allows the king to keep a brāhmaṇa offender in confinement in a secret place and give him bare maintenance or the king may make him do the work of guarding cattle for a month or a fortnight or make him perform other work not fit for a decent brāhmaṇa. The Mit. on Yāj. II. 270 explains that the mark of female private parts for violating *guru's* bed, of a tavern for drinking the liquor called *surā*, a dog's foot for theft, of a headless corpse for brāhmaṇa murder (as laid down by Manu IX. 237 and 240, Viṣṇu Dh. S. V.
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4) is to be made on the forehead only if the offender (whether a brāhmaṇa or not) did not perform *prāyaścitta* for those grave sins. Branding with marks appropriate to the crime committed were in vogue in Rome and in Britain up to 1699 (such as the mark of the letter M for murderers, T for thieves &c.). Vide Barnes' 'Story of punishment' p. 62. The Rājatarangiṇī (IV. 96-106) refers to a case in the reign of king Candrāpīḍa of Kashmir when a brāhmaṇa guilty of the murder of a brāhmaṇa was exempted from death sentence because of the smṛti rule. Manu IX. 241 gives option that a brāhmaṇa (unintentionally) guilty of grave offences may be punished with the middle amercement or he may be banished from the realm keeping all his wealth. The punishments for a brāhmaṇa offender, according to Gaut. XII. 44, were preventing him from doing the same thing again, depriving him of all wealth, taking sureties from him, proclaiming him as a thief in the city banishment, putting on his forehead the mark indicative of his crime. Āp. Dh.S. (II. 10.27. 16-17)⁶³³ lays down that a brāhmaṇa guilty of murder, theft, forcible seizure of another's land was to have his eyes covered over with cloth for the whole of his life (while a śūdra guilty of any of the three was to receive the death sentence).
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Vṛddha-Hārita (VII.209-210) says that a brāhmaṇa should be branded on the body for all those offences that entailed corporal punishment for other offenders, that he should have his head shaved, that he should be deprived of all his property and banished from the realm. The force of popular feeling on the point of exempting a brāhmaṇa offender from the death sentence was so great that Elphinstone (Governor of Bombay) in Regulation 14 of 1827, sec. IV (cl. 5) exempted brāhmaṇas and women from death sentence even for murder where public feeling would be shocked⁶³⁴. It is not to be supposed that this exemption of the brāhmaṇa from the death sentence was unanimous or universal. Kāt. (806) contains this remarkable statement:⁶³⁵ ‘Even a brāhmaṇa deserves to be killed if he be guilty of causing abortion, if he be a thief (of gold) or if he kills a brāhmaṇa woman with a sharp weapon or if he kills a chaste woman'. Kauṭilya (IV. 11) prescribes that a brāhmaṇa who aims at the kingdom or who forces entrance into the king's harem or who incites wild tribes or enemies (against his king) or who foments disaffection (or rebellion) in forts, the country or the army should be sentenced to death by drowning.⁶³⁶ The fact that Cārudatta, a brāhmaṇa, is represented as having been condemned to death by king Pālaka in the Mṛcchakaṭika indicates that the sentence of death against brāhmaṇas was not entirely unheard of. It appears from Fick's 'Social organisation' &c. p.
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212 that in many Jātaka passages the execution of brāhmaṇas is referred to.