Crime – Punishment – Penance – An Insight*
Prof. C.A.
Prelude
A civilized society presupposes the existence of laws, be they in any form. Due to sociological, cultural, philosophical, religious, geographical and ideological reasons and differences, law (theory and practice) has developed in its own way all over. Each legal system is unique.
However, if History offers proof, the Sastras, amidst innumerable variations and transformations has offered guidance and secured compliance from people in civil society for thousands of years in a plentitude of situations through successive conquests and the political uncertainty of the rise and fall of innumerable hostile governments and empires. Great personalities like Maine
'Dharma' – The Basis for Law
In Indian philosophy, there is no philosophy of law as such consciously attempted and ancient society was based on firm foundations of Dharma which included religious, moral and legal precepts. This system is not the code of legal rights emanating from a concept of the right so much as a code of religious, moral and legal precepts and duties laid down for individuals to follow. The emphasis is more on duties and obligations rather than on rights. No distinction was observed between law, ethics and religion, Law was a branch of and was included in the comprehensive term Dharma. It meant the aggregate of duties and obligations, religious, moral, social and legal. It is very important to note that the concept of Dharma revolved on Varna & Asrama – may be a strength or weakness – to be examined.
The text writers developed criminal law under three heads, viz. crime – pataka – sin, punishment – Dhanda and penance – Prayaschitha. In their approach, they gave emphasis on the supremacy of inward life of an individual over external things. Philosophical thinking considered the life of an individual and of society as one integral whole and not compartmentally. Secondly, morality, as the content of legal rules, has an important part to play int he maintenance of order in the society. The injunctions voiced in the texts have been based on moral authority and looks like sui generis. Thirdly, it is Rajadharma – duty of the King to execute law without fear or favour. Fourthly, the Mosaic Law or any text, in its own way claimed to be based on divine inspiration.
Structual Spread of Pataka, Danda and Prayaschitha
The Dharma Sastras generally contain 18 topics on aw, in which five belong to criminal law ie., concept of offence and basic law governing punishment. These things are covered in Vyavahara part. Whereas Prayachitha itself is a part. However, these matter cannot be treated in isolation since the basic force for all these is common. It is generally understood that the germs of criminal jurisprudence came into existence in India
Pataka - Sin – Crime
(a) Genesis:
As to what acts or omissions constitute offence or sin depend upon the law and moral and social values evolved in a particular society. A crime is an injury inflicted on another. It may be said to be a relation between two persons, one active and another passive. It may be simple, or heinous. Lack of appropriate moral and material surroundings may be responsible for giving an opportunity to the perpetrator of the crime.
In ancient Indian society the concept of Pataka originated in the Srutis and was developed by Dharmasastrakaras. Etymologically the word Pataka derived from the root Pat, ie to fall. A fall from right to wrong. It was looked as Papam. Later on, sin and Karma were introduced in Upanishats and the Bhagawat Geetha. It is very important to note that sin was liked with Tamoguna. The lust, anger and greed ruins oneself and takes him to hell, so one shall shun these three. It is humbly submitted that, there is close relationship between Gunas and Kriyas. A person who is influenced by lust, anger or greed, commits sin. Along with this there are thirteen other enemies inside a person beginning with Krodha (anger). Persons are advised to denounce these elements. Even by hard practice one shall control the senses lest he shall fall towards sin. It is very interesting to note that root of a Pataka (Sin) is guna, different from mens res of western incorporation. This guna may lead to mens rea. These patakas are further related with karma and rebirth. Under Hindu philosophy one shall take next birth according to his karma. This is a very powerful doctrine which developed the law on crimes. One may be afraid of his rebirth and try to be one right parth.
(B) Classification of Patakas
Manu has recognized assault, theft, robbery, false evidence, slander, criminal breacyh of trust, cheating, adultery and rape. Allong with these, the Smritikaras recognize various other sins, covering the entire gamut of all sinful or wrongful actions ie., acts done in violation of social or cultural or religious or moral rules and includes acts in violation of any provision of law, ie. An act in violation with Dharma.
The Patakas are generally classified into three categboreis, viz., enasvins (ordinary sinners) Maha patakas (moral sins) and upa patakas (minor sins). There is no uniformity in classification of crimes. For example, Narada gives a list of 10 offences, Pitamaha gives 22 offences. For all theft (steyam) is a major branch of crime. Most of the text writers treat Brahmahatya (killing a Brahmana) , strihatya (killing a woman) Gohatya (Slaughterinbg cows) Brunahatya (foeticide) and violating a Guru's bed (Guruvanganagamah) of very serious crimes. They go to the extent of making any deviation in daily discipline like sleeping after sun rise and sleeping at the time of sunset also an offence. Since varnadharma was to be respected, cohabitation in between varnas was treated an offence. Making voyages by sea, eating flesh of forbidden animals, taking the property by one before his elder brother takes, marryhing a girl when her elder sister is not married, intercourse with a women during her mensus period, are all sins, ie., punishable offences.
It is submitted that, classification of offence as deviation from dharma is basically found on morals and ethics. Any moral turpitude is severely viewed. Special attention may be given towards the treatment of text writers on foeticide and different kinds of adultery where modesty of women is in question. Many offences may appear to be ridiculous and do not stand the test of reason and rationale but a close study reveals the spirit of law which may be relevant even today.
It is further submitted that, since there was multiplicity of texts and laws on crime, it was very difficult to adopt and follow a particular code. Ultimately it led to a kind of individual determination of the Ruler. Perhaps this must have led to arbitrariness also.
Punishments – Danda
Punishing the offenders is a primary function of all civil states, and it has been accepted and practiced by all societies since time immemorial. Theories have developed over the period of time on kinds of punishment, reason for punishment and results of punishments.
The popular view is that, punishment is retributive and damages are only reparative. From utilitarian point of view all punishments are preventive in their ultimate end and not retributive. In prevention pain caused by punishment, an admitted evil, is only admissible to prevent worst evil. In reparation the idea is of restoration of the person injury as far as it is humanly possible. The feelings of anger and revenge against the perpetrator are as much natural as perhaps the crime.
However, the modern tendency is that there is a leaning towards reformation of the criminal. They argue, that society, to protect its social health may resort to methods other than making a criminal an end for others.
It is to be observed that, primitively, almost all legal systems practiced a very barbaric, severe, rigid law of punishments. 'Eye for an eye', 'tooth for tooth' were the basics of punishment.
Under Hindu law, one can find various kinds of punishments like, fine, corporeal punishment upto death. The Dharmasastrakaras authorize the Kintgs to punish the offender as it is Rajadharma. Without conferment of power on the King to punish the criminals, there would have been chaos and human beings would have always been tormented by fear, insecurity to life and property and consequential misery. It is prerogative of the King to punish the wrong doer and he shall impose penalty impartially. When the offence is proved against anyone, the King has no authority to exempt the guilty from penalty. On the other hand, Manu says, 'men who have committed crimes and have been punished by the King go to heaven, being pure, like those who performed meritorious deeds. This purification process leads one towards reformation.
Classification of Dandas
All smritikaras recognize four kinds of punishments viz., Vagdanda (admonition), Dhigdanda (censure), Dhana danda (fine) Vadhadanda (corporal punishment including death penalty).
Text writers have detailed the process of inflicting danda and quantum of danda. So far of fine is concerned, the King has discretion on Vadha Danda ie., death punishment. It was to be invoked exceptionally as an exception. The body mutilation, execution through elephant trampling and appear to be very harsh. On the basis of this, one cannot come to the conclusion that these texts were unscientific. The general view is that Manu’s Dharma sastra and Kautilya’s Arthasastra views crimes seriously and severe punishments are prescribed.
Guiding Factors on Punishments
It is very important to note the following rationale features in brief:
a) In case of fines, lowest, middle and highest amounts were prescribed
b) While confiscating the property, musical instruments, implements of artisans shall not be attached.
c) Death sentence normally be discouraged.
d) Special provisions in favour of women. Women shall be made to pay half of the fine prescribed to be payable by men, death sentence to be avoided, etc.
e) Very importantly, special protection given to children below the age of 5 years and very old persons.
It is humbly submitted that many of these provisions have found a place in modern statues.
On the other hand, quantum of punishments would vary according to the placement of a person of varna
As stated earlier, shastrakaras, viewed sexual offences very seriously. Under the heading strisangrahanam (adultery and rape), various kinds of sexual exploitations from rape to consented sex have been looked into. Very interestingly, the Visaka’s elements of sexual harassment were identified by them. The Feminist criminal jurisprudence was developed then.
Another noticeable point6 is, unlike modern Law of Crimes, an adulterous woman shall face the punishment alongwith her male counterpart. The Law Commission in its 42nd Report has recommended for an amendment to Sec. 497 of IPC, imposing punishment to wife also. However, of adultery capital punishment was prescribed by them, whereas the present law exempts the wife.
If a woman comes to man’s house and excites his concupiscence by touching him or by like acts, she shall be published with half the punishment prescribed for men. This is a most interesting treatment of text writer which depicts how equal treatment was given to both men and women for moral turpitudes.
It is submitted that the smritikaras tried to cover almost all evils, of different fields like environment, public service, consumer protection, finance etc. It may not be wrong to submit that more or less the offences found in IPC, and statutes are found in texts.
The intensity of crime will be mitigated through prayaschita, japa, tapa, upavasa and other kids of penances. Great attention is given to surrender and confession which mitigates the quantum of punishment. However, these aspects are studied under the head, Prayaschita.
Prayachitha – Penance:
Prayachitha has received different menings praya means Tapas and Citta meaning resolve or firm belief. Balabhatti puts praya as sin and citta purification. A sin cannot be removed so easily. The text writers developed the theory of purification through penances. Through this the sould and body are purified. Sins are of two kinds, ie., intentionally committed and unintentionally committed. Bhy observing prayachitta uni ntentional crimes are washed of and intentional crimes get the intensity mitigated. Prayachitta bare religious and ritualistic observations. Therefore, they have got very little to do with forensic law. Observations include, upavas (Fasting) yatra (pilgrimate) dana (Charity) self imposition of pain to one’s own body, Homa Tapas, etc., wash away one’s sins. The Hindu religion strongly upholds the theory that rebirth is in accordance with his deeds of previous life. To attain total salvation or at least to reach heaven one must be free from taints. The King can impose penances in addition to Danda. It is interesting to note that confession and repentance reduce the criminal liability. Manu says, a man becomes free from the effects of his evil deeds in proportion to the repentance in his heart, provided he resolves that he shall not repeat the offence.
The King is expected to take into account the prayaschita one has undergone before inflicting punishments. He should act cautiously and judiciously taking into account, age, health, strength of the culprit. This is a very reasonable ordain of the texts.
Another feature of prayachitta is, that the expiation prescriptions vary according to varnadharma. For example, Brahmanas shall not undertake expiation leading to death.
As stated earlier, karma, punarjanma, prayaschitta, are all the institutions basically laid under ecclesiastical jurisdiction, partly they operate as punishment and partly rituals. Taking baths twice or thrice, going for alams, eating herbs, roots only, following celibacy, sleeping on floor, to take up pilgrimage by foot are all observed as vrutas. One can find religious overtones in prescription and practice. This is a process of mending the body and soul.
Under the light of modern legal philosophy, the most popular theory is that reformation of the criminal-paschatap and prayaschitta have potential to purify soul and body. When they are self inflicted, they are more effective. However, it is not easy to adopt and incorporate these values in to modern codes of law. The penances possessing religious flavour serve little purpose in a secular legal system whereas it may serve some purpose when they are partially punitive in nature, for example, undergoing compulsory celibacy for vitiating other bed, or fasting. One can remember the frequent experiments conducted by Mahatma Gandhi by fasting, The philosophy preaching purification of soul, purifies mind also. However, expiations have very little to serve reparative justice. How the victim is benefited when the wrong doer undertakes fasting? But modification in expiation like, making dana by the wrong doer to the wronged will be meaningful in both remedial and reformative endeavours.
Conclusion:
The Indian indigenous criminal law system is very rich in literature form. Crimes, punishments and penances together deal with crimes effectively. It is not the submission that these rules ought to be reincorporated and adopted directly enmass. The submission suggests a scientific unbiased study of these texts and prescriptions and whenever and wherever possible, they can be borrowed by spirit. Each text depicts cultural heritage, They send value signals. They all try to purify individuals through which society can be purified. The deep sense of respect to the religious values like pap and punya, karma, punarjanma, have controlled the major folk of this society, All texts are prescriptive in nature. They have received the status of ‘Scared Books’ by orthodoxy.
It is humbly observed that many rules prescribed on commission of crime or punishment or prayachitta are unsuitable today. They are of historical importance. The over significance attached to varnasrama dharma is hardly acceptable. But one may have to accept strength of religion and potential of its value like Morality, Ethics and Dharma. A time has to come to study seriously the indigenous legal system and their contemporary relevance and adaptation because they are with the people since time immemorial but eclipsed. The Government of India has accepted Dharma chakra as its emblem, but it should not be limited to paper and stamp. Dharma is strength of our nation. Dharmo rakshitah ie. Dharma protects those who protect Dharma.
