Daṇḍa (Hindu punishment)

Incapacitation is a way to prevent the commission of a crime. An offender punished with death, banishment, imprisonment or mutilation prevents them from being able to repeat an offense permanently or temporarily. Manu urges the king to cut off the offending limb of a thief to prevent them from stealing again. In the case of cutting off a limb it has both a preventative effect and ensures that the same crime will not be committed again.[4]

One reason for punishment is to prevent or discourage commission of crimes or unlawful behavior through deterrence. It can prevent people from committing a crime or from re-offending. According to the Mahabharata, people only engage in their lawful activities for fear of punishment by the king, in the afterlife, or from others. The main way to deter potential criminals from committing a crime was through the example of offenders suffering. Manu recommends the king place prisons near a high road where the "suffering and disfigured" offenders can be clearly seen, making imprisonment both deterrent and preventative.[5]

Rehabilitation is yet another goal of Hindu punishment. Someone who breaks the law should be punished in a way that improves his character and conduct and places the offender on the correct path. The Mahabharata recommends the king reform or correct criminals by punishment.[6]

In the Daṇḍaviveka, Vardhamāna outlines eleven factors affecting the severity of the punishment that will be meted out. "The caste (of the offender), the thing (involved in the offense), the quantity (of that thing), the utility (of that thing), the person, concerning who the offence has been committed (parigrahaḥ), the age (of the offender), power (i.e., the pecuniary condition of the offender), qualifications (of the offender), the place (of the commission of the offense), the time (of such commission) and the specific offense are the several factors (to be considered, while inflicting punishment)."[2]^:131 Every legal system considers mitigating factors; however, Hindu jurisprudence differs from most. From the beginning of a case, Hindu jurisprudence views each case as a sum of all of the factors. Therefore, all textually stated punishments are affected by the factors of a given case.[2]^:131

If forgiveness is not possible or desirable, it is seen whether the circumstances of the offense are deserving of admonition. Admonition is to be used first, and then censure. Both admonition and censure are the lowest and least severe of the possible punishments because neither inflict physical pain or loss of property. When using censure, "a good man committing his first offense should be asked: 'Is this your evil action.' 'Is it proper of you?'" Censure is a stronger disapproval than admonition.[3]^:152–153

A fine is to be imposed when damage is done to another; the amount of the fine is dependent on many factors. In the ancient Hindu tradition, it was generally accepted that if a Kshatriya, a Vaishya, or a Shudra was not able to repay the fine, then the offender was made to perform manual labor. However, it was expected that Brahmins would pay the fine in installments. The last resort was to imprison the offender if the offender could not perform manual labor. Presently, any offender may repay the fine in installments, but there cannot be more than three planned installments.[3]^:153 According to the ancient Indians, the King must pay a heftier fine for committing a crime. This was thought because he was the prosecutor of his subjects, and therefore, he was also an example for his subjects. In accordance with this idea, the King was made to pay 1,000 Karshapanas when a common man would be fined just one Karshapana.[3]^:154

There were conflicting views on how fines should be imposed on first-time offenders: either inflict lenient fines or very heavy fines to prevent the offender from becoming a recidivist. Over time, it became commonplace to base the amount of the fine on the nature of the crime. In totality, the nature of the crime, the ability of the offender to pay, whether or not it was the first offense, and whether it had been an individual or group that committed the crime were used to determine the amount of the fine. It was thought that an individual should have a lesser amount imposed upon him because he did not conspire to commit the crime with others.[3]^:154

The amount of fine varied according to the caste in which one belonged. A Shudra would pay eight times the amount of the damage, a Vaishya would pay sixteen times the amount, and a Kshatriya would pay thirty-two times the amount. A Brahmin would generally pay sixty-four times the amount; however, a Brahmin could be made to pay up to a hundred times the amount of damage. The multiplier was different for each caste, because the mental capacity of the offender and the offender's ability to pay the fine were taken into consideration.[3]^:154–155

"If a blow was struck against men and animals in order to give them pain, the Judge had to inflict a fine in proportion to the amount of pain caused. If a limb was broken or wound caused, or blood flowed the assailant had to pay to the sufferer the expenses of the cure, or the whole (both the usual amercement and the expenses of the cure) as a fine to the King. He who damaged the goods of another, intentionally or unintentionally had to give satisfaction to the owner, and pay to the King a fine equal to the damage."[3]^:155–156 Here it is demonstrated that the offender must be fined proportionate to damage done, as well as, repay the victim. There were also heftier fines placed on certain items such as leather, utensils made from wood or clay, flowers, roots and fruits. The fines placed on these were five times the value of the item damaged.[3]^:156

If there is a connection between the offender and the victim, the fine could be lesser than if no connection exists. This connection could be one of four types: between master and servant, between people having mutual dealings, between people from the same village, or between kinsmen. "Thus if a kinsman sold the owner's property the former was only to be fined 600 panas, but if he was not a kinsman, nor had any excuse he would be guilty of theft.[3]^:156

The main function of imprisonment, for ancient Indians, was deterrence. Prisons were to be situated near main roads where the offenders could easily be seen. The Dharmaśāstras do not lay out specific crimes for which imprisonment is required; moreover, the Dharmaśāstras do not state how long a prisoner should be kept. It was left to the King to decide who would be imprisoned and for how long.[3]^:158 The people who received stolen property "had to be put in iron fetters, kept on a lean diet, and made to do manual labour for the King till their death."[3]^:160 Brahmins could be sent to prison if one had committed a crime that required mutilation; however, the Brahmin would not be forced to perform manual labor. The Brahmin could be made to do menial labors instead such as cleaning dirty dishes.[3]^:161

Mutilation of body parts is a remnant of the ancient Hindu punishment. It was used when an offender caused injuries to the victim. Mutilation was seen most typically as a punishment in cases of theft, robbery, and adultery as a way of making the criminal an example to the public because the mutilated body was a horrifying sight. Typically, whatever limb was used by the person of the lower caste to hurt a man of a higher caste would be cut off. Mutilation was also used to deter the offender from repeating the crime. Therefore, by cutting off the limb that was used to commit a crime, for example, stealing cows belonging to a Brahmin resulted in the offender losing half his feet, the offender would physically be unable to commit such crimes again. Lastly, there were eight main places of mutilation: the organ, the belly, the tongue, the hands, the feet, the eye, the nose, and the ears.[3]^:163–164

Under the Indian Penal Code, the death penalty is reserved for the gravest offenses. There are only several crimes, for which inflicting death upon the criminal, is permissible. The first of which is waging war against the Government of India. The next action, which is punishable by death, is the encouragement of a mutiny which is committed in consequence thereof. The death penalty is also prescribed when someone gives false evidence that results in the defendant being convicted of the crime, sentenced to death and the punishment being carried out. The fourth reason someone can be sentenced to death is murder, under the notion of an eye for an eye. Again, the death penalty is allowed for someone who encourages the suicide of a minor, someone who is insane or a person who is intoxicated. The sixth reason a person can be sentenced to death is if a convict attempts to commit murder and harm is caused. The last reason the death penalty can be inflicted is if murder is committed during a robbery by a gang. All of the cases, in which one can be sentenced to death, are those in which death has resulted or was likely to result. For all seven of these cases, there is the alternative of lifetime imprisonment. Today, attempts are made to find mitigating and extenuating factors so that the lesser punishment is inflicted. It was commanded that the King should avoid capital punishment and instead detain, imprison and repress offenders.

There are some main differences between the ancient and the modern Hindu law with respect to the death penalty. The first difference is that in classical India the death penalty was permissible in a very large number of cases. Second, the death penalty was not prescribed solely in cases in which death resulted or was likely to result. Instead, it was also used in cases such as adultery and theft. Third, there were numerous ways to inflict the death penalty, unlike modern India which uses hanging as their only means of imposing death. Fourth, in modern India the death penalty is an exception whereas in ancient India it was a rule. Fifth, today the underlying principle seems to be retributive while in classical India it was a means of deterrence. Lastly, today the law in relation to the death penalty is the same regardless of caste or color. However, in ancient India Brahmins were never subject to the death penalty.[3]^:164–168

Whipping was done with a whip, cane, rope, or something similar. Whipping was performed upon women, children, men of unsound mind, the impoverished, and the sick. Whipping, and the other forms of corporal punishment, would only be inflicted if the other three forms of punishment (admonition, censure, and fine) had failed to reform the offender.[3]^:169

Branding was often reserved for Brahmins who had committed one of four acts: the murder of another Brahmin, incest, one who had stolen gold, and one who had drank wine. If one had killed another Brahmin, he would receive the brand of a human trunk on his forehead. For a Brahmin who committed incest, he would receive the brand of a female organ on his forehead. The Brahmin, who stole gold, would have the brand of a dog's foot on his forehead. Finally, the Brahmin, who had drunk wine, would bear the brand of a banner on his forehead. After being branded, the Brahmin would be made an outcast of his own country, and he would not be welcomed anywhere else due to the brand on his forehead. For all four castes, branding could be avoided if the offender performed the proper prāyaścitta. Men of other castes could be branded if they had an affair with the wife of another; after, the offender would be banished as well.[3]^:171–172

As indicated in the section on branding, one who had been punished by being branded would be banished from his particular community. The idea of banishment after being branded probably originated with the King. No respectable king would want to have offenders displaying such brands in his Kingdom. Besides being banished concurrently with branding, there were various other crimes that one could commit which would warrant being banished. For one, who is a Shudra, Vaishya, or Kshatriya, that gave false evidence would be fined and banished; however, a Brahmin, who committed the same crime, would only be banished. If a man, who belonged to a corporation situated in a village, broke an agreement due to greed, his punishment would be banishment. The Dharmaśāstras also proscribe breaking the bone of another, gambling, "...dancers, and singers, cruel men, men belonging to an heretical sect, those following forbidden occupations, and sellers of spirituous liquor"[3]^:172 lest one should be banished. If one was to intentionally commit a crime, he would be banished as well. If one, who was able, was to sit idly by as a "village is being plundered, a dyke is being destroyed, or a highway robbery committed,"[3]^:172 he would be banished with his belongings. For those who damaged a town wall, broke a town gate, or filled a ditch near town would instantly be banished. For a lower caste man, who through deceit, survived by working in an occupation, belonging to one of a higher caste, the King ought to confiscate property and banish the lower caste man. A defendant, who had lost and denied the due owed, was to be banished. People who cheated others, took bribes, or gave wrong judgments, if they were assessors, would also be banished. Visṇu and Nārada outline that those who hypnotize others or play foul should be branded and banished.[3]^:172–173[13]

In ancient Hindu society, the entire private property of an offender would be confiscated, as opposed to, present day where the Indian Penal Codes only confiscate the property used in the commission of the crime. In ancient India, there were seven kinds of crimes that warranted confiscation of property. The first crime was for an official, who accepted money from suitors, with poor intentions. A Shudra who had intercourse with a woman of a higher caste was another crime that warranted confiscation of property. The property of a Vaishya could be taken if he were to have intercourse with a Brahmin. A trader, who exported goods that the King had a monopoly over or exporting an item that is forbidden, could have his property taken. The furniture of a woman, who disrespected her husband who is a drunkard or diseased, could be taken. An official, who is supposed to administer public affairs, but is also corrupted by wealth and has disrupted the business of another could have property taken. The entire property of a person, who is not a Brahmin, could be taken if that person had unintentionally committed a crime.[3]^:174–175

There are some very notable differences between the way ancient punishment was to be administered and how modern punishment is administered in Hindu societies. If a criminal were to confess to a crime, he would received half of the prescribed punishment in ancient India; however in modern India, confessing does not mitigate one's punishment. In ancient India, one's caste would affect the punishment that he would receive. In modern India, caste does not play a role, which furthers the idea of equality among men. Modern law, in India, dictates that only laws that have been conceived and that are written down may be punished. In ancient Indian law, a person could be prosecuted for a crime that has not been written down if a Sishta, a Brahmin who had studied the Veda, declares the act to be a crime. One other punishment that could be incurred in ancient India was the confiscation of a Shudra's wife if he had an affair with a woman of a higher caste, which would be inconceivable in modern India.[3]^:177–180