History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.251

v5.c71.s1.251

Many of the sins (though *not all*) for which penances are provided in the smṛtis are also offences punishable by the king or State For example, murder, theft, incest, perjury are acts punishable by the State in almost all countries even now and were so in ancient and medieval India Persons guilty of these were also liable to undergo prāyaścittas. It is probably due to this double liability that punishments for crimes in ancient and medieval India were light as compared with the heavy punishments for even trifling crimes inflicted in western countries only a century or two ago But there are other acts which are not punishable by the State now and were not probably punished even in ancient or medieval India by the king. For example, forgetting Veda studied by a person, not tending Vedic fires consecrated by a person himself, sleeping till after sun-rise and sleeping at sunset are pātakas, acc to Vas I 19 and some of these are upapātakas acc to Yāj III. 239. It does not seem likely that an Indian king ever punished any person for these. On the other hand, obstructing the road, prying when the king is taking his meals, sitting before the king on one's haunches, speaking loudly before the king are among the fifty *chalas* of which the king could take cognisance *suo motu* and award suitable punishment (vide H. of Dh vol III p. 266). But there is nothing to show that such actions ever fell within the purview of the rules about prāyaścittas. The important questions are: What was the relation of the rules about prāyaścittas which were to be prescribed by a *pariṣad* (a meeting of learned brāhmaṇas) to punishments by the king as regards actions which were both *pātakas* inviting penances and crimes entailing punishments by the King? Which of these two sets of rules was earlier? Were penance and punishment cumulative or alternative? It is difficult to give definite opinions on these questions. We know that prāyaścittas like Aśvamedha are spoken of even in the Tai S. We also know that the *praśnavivāka* (which is quite close to prāḍvivāka in derivation and meaning) occurs in the Vāj. S. XXX. 10 and Tai Br. III. 5. 6. Therefore it follows that judicial functions were very early separated from the executive functions of the king. The reference to the ordeal of fire in the Tāṇḍya Br 14. 6. 6 (vide H. of Dh. vol. III p. 361) and the grasping of a red-hot hatchet in the hand by a person accused of theft and his being killed show that ordeals were administered and the punishment for theft was death. Bṛhaspati, quoted in the Vivādaratnākara, says 'When a man of good character and a diligent reader of the Veda has committed theft he shall be kept in prison for a long time and shall be caused to perform penance after having been compelled to restore the goods' (S. B. E. vol. 33 p. 362¹⁶⁶).