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Report No. 35

D. Principles of Punishment in Hindu Law

The principles of punishment have been well put by Kautilya.1 Punishment, if too severe, alarm men; if too mild, it frustrates itself. Punishment, according to deserts should be encouraged. Punishment, properly determined and awarded, makes the subjects conform to dharma (right), artha (wealth) and kama (desire). When improperly awarded due to ignorance, under the influence of lust and anger, it enrages even hermits and (religious) mendicants, not to speak of householders. Punishment unawarded would verily foster the regime of the fish i.e. in the absence of the upholder of law the strong would swallow up the weak. Protected by the upholder they would prosper.

A good summing up of the objects of punishment as conceived in the Hindu period is found in a recent study:2

'If we analyse the implied and explicit purposes of punishment, we find that punishment was conceived, first, as a deterrent measures calculated to strike fear into the hearts of the criminally minded and to check their immoral and anti-social passions. This purpose was served particularly by disproportionately severe punishment and by "branding", "parading" and publicizing punishment. The second object was the prevention of the possibility of the culprit's repeating the crime. So, the culprit was imprisoned, fettered, killed, or exiled.

Retribution may be said to be the third motive of punishment in two different senses: retaliation, and making the wrongdoer suffer the fruits of his own karma. The first is particularly noticed in the mutilation of that very limb by which the wrong was done (e.g. cutting off fingers or hand of a thief, the tongue of a defamer). Punishments, fourthly, are conceived to be an educative, and, therefore, a reformative process also. Sukra points out that, consistent with the Vedic teaching of non-injury to life, a culprit should be educated (siksayet) and made to work. He takes a very modern socio-psychological view when he says (4.1.110):

"Such persons were corrupted by bad company. The king should punish them and always educate them back on to the right path." But punishment was thought to be, not only reformative, but also purificatory in a moral sense. This is more evident in the fact that punishment also included different forms of repentance, confession, prayer, penitential starvation, and long periods of penance (e.g. a Brahmin, while spared capital punishment, had to live even as long as twelve years in the forest in austerity and celibacy to atone for murder)'.

1. Kautilya, cited in Dr. P.K. Sen Penology old and new (Tagore Law lectures 1929), (1943 Edn.), p. 104.

2. D.M. Dutta Political, Legal and Economic Thought in Indian Perspective, in Moore (Editor) Philosophy and Culture-East and West, University of Hawaii, (1962) pp. 569, 591.

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