Report No. 35
G. Arguments against capital punishment in Hindu Law
Arguments against capital punishment are also met with. This extract from an authoritative study may be seen1:-
"It would be no exaggeration to say that the mind of the intelligentsia must have been agitated on the propriety or expediency of capital punishment. An interesting evidence of this is to be found in the Mahabharata (Chapter CCLVII of the Santiparva) in which there is a discussion between King Dyumatsena and his son Prince Satyavan.A number of men having been brought out for execution at the Command of his father, Prince Satyavan gives vent to his thoughts thus:
"Sometimes virtue assumes the form of sin and sin assumes the form of virtue. It is not possible that the destruction of individuals can ever be a virtuous act." Thereupon Dyumatsena observes, "If the sparing of those who should be killed be virtuous, if robbers be spared, O Satyavan, all distinction between virtue and vice will disappear". Satyavan rejoins, "Without destroying the body of the offender the King should punish him as ordained by the scripture.
The King should not act otherwise, neglecting to reflect upon the character of the offence and upon the science of morality. By killing the wrongdoers, the King kills a large number of innocent men. Behold! By killing a single robber, his wife, mother, father and children, all are killed. When injured by wicked persons the King should, therefore, think seriously on the question of punishment. Sometimes a wicked person is seen to imbibe good conduct from a pious person.
It is seen that good children spring from wicked persons. The wicked, therefore, should not be exterminated. The extermination of the wicked is not in consonance with eternal law. By punishing them gently, by depriving them of all their riches, by chains and imprisonment, by disfiguring them they may be made to expiate their offences. Their relatives should not be punished by inflicting of capital punishment on them."
The sentiment and reasoning against capital punishment is found in Sukra,2 according to whom, this bad practice violates the Vedic injunction against taking any life, and should be replaced by imprisonment for life, if necessary, and a natural criminal should be transported to an island, or fettered and made to repair the public roads. Fa Hsien did not find any capital punishment in India (399-400 A.D.) but fines were there, and mutilation in cases of treason.3
Nevertheless, it seems that, at various periods in the history of ancient India, capital punishment was one of the recognised modes of punishment.
1. Dr. P.K. Sen Penology old and new, (Tagore Law Lectures, 1929, (1943 Edn.), pp. 93-94.
2. Sukranitisara 4.1., 92-108, referred to in 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, 590.
3. 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. 579, 590.
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