CRIMINAL LAW OF THE HINDU SYSTEM (Hindu Criminal Law System) - The Red Carpet


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Saturday, May 29, 2021



Arthasastra, Manu Smriti and Yajnavalkya Smriti are the three leading law codes of ancient India. However, it is Manu Smriti or the Code of Manu, which has made a lasting impact on human behavior in India. It contains ordinances relating to law. It is a complete digest of the then prevailing religion, philosophy, custom and usages observed by the people in India. It lists the duties of the kings and rules, based on Dharma, of administration of justice by them.

In Manu Smriti, law was discussed under 18 principal heads, covering both modern civil and criminal branches of law, which fell under heads such as gifts, sales without ownership, rescission of sale and purchase, partition, bailment, non-payment of debt, loans, wages or hire, breaches of agreements and contract, disputes between partners and between master and servant, boundary disputes, assault and slander, defamation, trespass of cattle, damage to goods and bodily injuries in general. It specifically recognised assault, defamation, theft, robbery, violence to body, adultery, altercation between husband and wife, and gambling; as crimes. Later on, Manu added cheating, trespass or transgression and fornication to the list of offences. These offences were subject to punishment such as censure, rebuke, fine, forfeiture of property, and corporal punishment including imprisonment, banishment, mutilation and death. The quantification of these punishments by the King was regulated by a set of principles laid down, and the factors indicated, in the Code itself. Yajnavalkya, following Manu, lays down that the King should inflict punishment upon those who deserve it after taking into consideration the nature of the offence, the time and place of occurrence of the offence, and the strength, age, avocation and wealth of the accused. As in other ancient communities, the practice of paying money compensation was also prevalent in ancient India. However, the Hindu law of punishment occupied a more prominent place than compensation.

However, Manu Smriti practiced distinction between the higher and lower castes in the matter of giving punishments. Brahmins, persons belonging to the highest caste of the Indian society, and women were exempt from the death sentence. Instead of capital punishment, a Brahmin was to be banished, as it was considered a greater punishment for him than even the death penalty. He was to be given lesser punishment in some offences, even a quarter of the prescribed punishment for others. Till recently, this was the provision of the former Travancore State Penal Code. If a man belonging to a lower caste, i.e. if an avarna man committed adultery with a Savarna's wife, say a Namboodiri woman, the man would be awarded the death penalty. If a higher caste woman, i.e. savarna committed adultery with a lower caste man, she would be publicly humiliat- ed or cast out of the house and city, or thrown to the dogs, and in some cases, burnt alive. Various tariffs of damages were provided for different types of assaults and defamation. These practices were common in Malabar until the Indian Penal Code 1860 came into force.

Hence, Manu Smriti was criticised for its unequal punishment and treating Brahmins above the law. However, a scholar of criminal law, appreciating the scientific basis of this unequal punishment and its underlying basis, justifies such an unequal punishment treating Brahmins above the law.

A Hindu Code was compiled by the Pandits of Benaras at the instance of Warren Hastings, when the latter was the Governor-General of India. It was called the Gentoo Code. It provided death penalty for murder. Theft was divided into open theft and concealed theft, and different punishments were prescribed as in Roman law. The former was punished by fine and the latter by the most cruel punishment of cutting off the hand or foot at the discretion of the judge. Housebreaking and highway robbery were punished with the death sentence.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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