Report No. 35
C. Capital Punishment in Hindu Period
Before we deal in detail with the position regarding capital punishment at each stage of the Hindu period, it would be convenient to emphasize, by way of a rapid survey, the fact that capital punishment was in vogue at almost every stage during the Hindu period.
The emphasis on "Danda" (coercive authority of the King) may be noticed. During the Vedic period (1500 to 600 B.C.) originated the doctrine of the Divine affinity of the temporal ruler.1
The authority of the King was coupled with his obligation towards his subjects,2 and the coercive authority (danda) of the ruler was recognised as the cause of Dharma.3
In the pre-Maurya period (600 to 325 B.C.), the obligation of the King to protect his subject was developed. In one of the earliest Smritis,4 the list of offenders punishable with death includes those who caused injury to the seven constituents of the State, and those who forged royal edicts, etc. A King who fails to inflict punishment (danda)5 on a guilty man, or who punished an innocent man, was required to undergo a fasting. Some of the Pali Texts of that period, while emphasizing the importance of righteousness, also emphasised the duty of the King to protect his people6.
Kautilya7 explains, that a king who gives out just punishment does not destroy righteousness. Kautilya also emphasises that danda (punishment) is the surest and most universal means of ensuring public security.8
During the Maurya period (325 B.C. to 320 A.D.), following Kautilya,9 the law of treason was developed. Various acts of treason attracted the death penalty.
The Smritis of Manu and Yajnavalkya emphasized the King's duty to protect his subjects. An oft-quoted text of Manu says, that danda rules all people, danda alone protects them, danda is awake when others are asleep, and the wise declare danda to be identical with the law; through fear of danda all creatures, movable and immovable, "yield themselves for enjoyment", and swerve not from their duties. When danda is applied after due consideration, it makes all people happy, but when applied without consideration, it destroys everything. If the King does not untiringly apply danda against the wicked, the strong would roast the weaker like fish in a spit. When danda walks about destroying sinners, the people are not disturbed, provided that its wielder discerns well.10
Manu, therefore, emphasised the obligation of the King to detect and punish all culprits, and included, among those punishable with death, even thieves caught with stolen goods and the implements of theft.11
There are interesting discussions in the Mahabharata (200 B.C. to A.D. 200) about the coercive authority of the King.12 In the dialogue between Yudhisthira and Bhishma13 about danda, Bhishma states that danda is the means placed in the hands of the King for the smooth running of all human affairs on the path of dharma.
In the address of Kaninka Bhardvaja,14 danda is first conceived in general terms to be a fundamental political principle and a guard of the security of person and property as well as stability of the social order. Secondly, the key to this function is the principle that fear of danda is the grand motive for the individual's obedience to authority. Then, the purpose of the Divine ordination of danda in the king's favour is stated to be the fulfilment of law.
Thirdly, the qualifications required for the king's use of danda are discrimination and impartiality. At one place, Bhishma15 asked the king to slay without hesitation a person acting against the interest of his kingdom, whoever he may be. At another place,16 Bhishma declared the king in whose Kingdom women are forcibly abducted, to be more dead than alive. These passages are referred to in order to show the emphasis placed in those times on protection of society.17
In the Buddhist Sanskrit and late Pali texts, one finds references relating to death sentence. One work states, that the king is one who rules and guides the world; he censures, fines and executes the man who transgresses his commands; ruling in righteousness, he becomes dear to his people.18
In another work,19 Asvaghosha states, that after the birth of Buddha, Buddha's follower Shuddhodhana, while not executing criminals, kept them under mild restraint, as their release would not have been good policy.20
Asoka does not seem to have abolished capital punishment.21 But it is stated,22 that the greatest king of the Satavahana dynasty, Gautamiputra Satakarni, refrained from hurting the life even of an offending enemy, and that Rudradaman of the Saka dynasty never took life except in battle.
1. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959) p. 20; He also refers to P.S. Deshmukh, The Origin and Development of Religion in Vedic Literature, (Oxford University Press), (1933), Chapters 9 to 13.
2. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959), p. 24.
3. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959), p. 29.
4. Vishnu, III, 34 and V, 10 and 14, referred to in U.N. Ghoshal A History of Indian Political Ideas (Oxford University Press), (1959), p. 50.
5. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press, (1959), p. 51.
6. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959), p. 68.
7. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959), pp. 86-87.
8. Kautilya, Book IV, 8, 9, 10 referred to in U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959), pp. 117-118.
9. U.N. Ghoshal A History of Indian Political Ideas, (Oxford University Press), (1959) pp. 167-168.
10. U.N. Ghoshal, A History of Indian Political Ideas, (Oxford University Press) (1959), p. 180.
11. U.N. Ghoshal, A History of Indian Political Ideas, (Oxford University Press) (1959), p. 180.
12. U.N. Ghoshal, A History of Indian Political Ideas, (1959), p. 206.
13. Mahabharata XXII, 121.
14. Mahabharata XII, 138; see also U.N. Ghoshal, A History of Indian Political Ideas, (1959), p. 206.
15. Mahabharata XII, 57,.-7.
16. Mahabharata XIII, 61, 31-33.
17. Nagasena, Milinda-Panha, IV, 5.27.
18. U.N. Ghoshal, A History of Indian Political Ideas, (1959), p. 265.
19. Ashvadghosha Buddhacharita II,.-16.
20. U.N. Ghoshal, A History of Indian Political Ideas, (1959), p. 267; citing the Buddhacharita; see also E.H. Johnson, Translation of this work, p. 28, note.
21.Material relating to Asoka is discussed in detail separately.
22.U.N. Ghoshal A History of Indian Political Ideas, (1959), pp. 295-296.
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