History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.487

v4.c63.487

⁶³⁴ यत्तु शङ्खेनोक्तं ‘अदण्ड्यौ मातापितरौ स्नातकपुरोहितौ परिव्राजकवानप्रस्थौ जन्मकर्मश्रुतशीलाचारवन्तश्च’ इति, यदपि कात्यायनेन ‘आचार्यस्य पितुर्मातुर्बान्धवानां तथैव च। एतेषामपराधेपु दण्डो नैव विधीयते’ इतितच्छरीरार्थदण्डयोर्निषेधार्थं न पुनर्दण्डमात्रस्य। स्मृतिच. II. p. 126. Medhātithi on Manu VIII. 125 makes it clear that the absence of a fine occurs only in the case of a brāhmaṇa who was a first offender, who did not commit the offence with forethought and who was endowed with learning, good family and character. The Sm. C. II. p. 124 relying on Manu IX. 236 says that a brāhmaṇa could be imprisoned but he could not be subjected to such corporal punishment as cutting off a limb or whipping. The Smṛtis openly regarded the brāhmaṇa's person as sacred and so saved his body. The smṛtis endeavoured to reach the ideal of the rule of law and succeeded to a great extent in doing so. They held that every man, whatever his rank or condition, was subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. The only differential treatment that we find is in the appointment of judges (pp. 272-273), in the order of taking up causes of litigants (p. 298), in the punishment for perjury (Manu VIII. 123-124), in the matter of corporal punishment, in abuse, defamation and assault (pp.395-397), in punishment for adultery, in the repayment of debts and in the punishment for theft, which was severer for a brāhmaṇa. It will be shown below that from the 13th century, as indicated by the Sm. C., S. V. and Madanaratna, differential punishments had gone out of vogue. The smṛtis did not, like some modern freedom-loving people, declare the equality of all before the law on paper and in practice indulge in lynching. Further the smṛtis required all offenders of whatever caste to be brought before the same tribunals. Manu VIII. 335 and Yāj. I. 358 emphasize that there is none who is exempt from punishment in the king's court whether the person be the king's father or teacher or friend or mother or wife or a son or a family priest or brother or father-in-law or maternal uncle. Śaṅkha-Likhita and Kāt. (481) no doubt say that a king should not punish his parents, his family priest, teacher, near relatives, forest hermits, ascetics. But, as the Sm. C. II. p. 126 explains, the real meaning is not that the king is to allow these to escape scot-free, but that he should not inflict corporal punishments or fines on these, but should employ admonition or severe reproof towards them. The smṛtis do not contain rules like those in the Indian Criminal Pro. Code entitling Europeans and Americans in India to claim a jury preponderantly composed of their countrymen and claiming trial only by the High Court or like the privileges of the English Peers to be tried only by the House of Lords for felonies or the doctrine of the benefit of clergy abolished in 1827. Vide H. of Dh. vol. II. pp. 140-143 and 147-152 about certain privileges of brāhmaṇas.