Manusmriti: A Critique of the Criminal Justice Tenets in the Ancient Indian Hindu Code
The Manusmriti is the Hindu code of
Key words: Manu; Manusmriti; Hindu Code; Crime; Punishment; Criminal Justice
The jurisprudence of Ancient India, which was essentially Hindu-ruled, was shaped by the concept of `Dharma'[i], or rules of right conduct, as outlined in the various manuals explaining the Vedic scriptures such as `Puranas[ii]' and `Smritis'[iii]. The King had no independent authority but derived his powers from `Dharma’, which he was expected to uphold. The distinction between a civil wrong and a criminal offence was clear. While civil wrongs related mainly to disputes arising over wealth, the concept of sin was the standard against which crime was to be defined. (Basham 1967; Jois 1990). The Maurya Dynasty, which had extended to substantial parts of the central and eastern regions during the 4th Century, B.C., had a rigorous penal system, which prescribed mutilation as well as death penalty for even trivial offences (Sharma 1988). About the 2nd or 3rd Century A.D., Manu[iv], an important Hindu jurist, drew up the Dharmasastra[v] code, which was called as Manusmriti[vi]. The code recognized assault and other bodily injuries and property offences such as theft and robbery (Pillai 1983; Griffith 1971; Thapar 1990; Raghavan 2002).
Manusmriti dealt with the duties of a king, the mixed castes, the rules of occupation in relation to caste, occupations in times of distress, expiations of sins, and the rules governing specific forms of rebirth. Though a theoretical textbook, Manusmriti dealt with the practicalities of life and was largely a textbook of human conduct. After Manu came Dharmasastras attributed to Yajnavalkya, Vishnu, Narada, Brahaspati, Katyayana[vii], and others (Jayaswal 1930). The later Dharmasastras were nearly pure legal textbooks. The Manusmriti was considered superior to the other Dharmasastras (McGrath 2003). The Dharmasastras claimed to be divine in origin and to have been passed on by ancient sages who cannot be identified as historical figures. Manu was found as early as the Rig Veda[viii] (1200 BC), where he was described as Father Manu, the progenitor of the human race. In the Satapatha Brahmana[ix] (900 BC), Manu was depicted as the father of mankind when he followed the advice of a fish and built a ship in which he alone among other men survived the great flood. Afterwards he worshiped and performed penance and a woman, Ida or Ila[x], was produced and he started mankind with her. Manu was also the first king and the first to kindle the sacrificial fire. As the originator of social and moral order, he was the sage who revealed the most authoritative of the Dharmasastras (Singh 1998; Bhatia 2001; McGrath 2003)
text, the Manusmriti or Manava Dharmasastra is the earliest of the
Dharmasastras. Its date is uncertain, being somewhere between 200 BC and 100
BC. It probably reached its present form around the second century BC. The
geographical horizon of Manusmriti was confined to the region north of Vindhyas
(Mahajan 1994). A seminal Hindu text, the Manusmriti
is important for its classic description of so many social institutions
that have come to be identified with Indian society (Olivelle 2004). In
the section of the text on raja dharma, the king's dharma, there
are passages on Hindu law. It was these passages, which were first, noted by
Western scholars and so the text became known as the Laws of Manu (McGrath
2003). The Manusmriti is the authoritative work on Hindu Law. It is the basis
of Manusmriti the Hindu law was adopted by Englishmen in
The Laws of Manu drew on
jurisprudence, philosophy and religion to create an extraordinary,
encyclopaedic model of how life should be lived, in public and in private, by
oppressed castes as well as by priests and kings, by women as well as by men (Doniger 1991). A few chapters deal with crime,
justice, and punishment. The criminal justice system in ancient
Without the knowledge of Varnashrama Dharma one may not be able
to understand the nuances of Manusmriti. The ‘
Manu Dharmasastra expressed and reinforced the
From the Vedic period
onward, the perennial attitude of Indian culture has been justice and
righteousness. Justice, in the Indian context, is a human expression of a wider
universal principle of nature and if man were entirely true to nature, his
actions would be spontaneously just. Men in three major guises experience
Justice, in the sense of a distributive equity, as moral justice, social
justice, and legal justice. Each of these forms of justice is viewed as a
particularization of the general principle of the universe seen as a total
organism. From the broadest to narrowest conception, then, ancient Indian views
on justice are inextricably bound up with a sense of economy (Wayman 1970).
Human institutions of justice - the state, law, etc. - participate in this
overall economy; but the belief has remained strong in
The state performed its duty of protection of society and the individual through coercive enforcement of the standards of justice, which are reduced for the purpose into the minutiae of positive law. Through practical law-enforcement, the state must actually seek to controvert the ignorance of those men in society who remain unaware or unconvinced of the very purposes for which they themselves, the state, and society exist (Bhattacharaya (1990). Accordingly, the traditional Indian king has been invested with danda, "the sceptre”, a symbol of the power and authority of the state, which rules, inexorably by law and punishment (Menski, 1991). Manu, insists in his discussion of the role of the king that if he does not " . . . inflict punishment on those worthy to be punished, the stronger would roast the weaker like fish on a spit ... "[xi]. “Having fully considered the time and the place (of the offence), the strength and knowledge (of the offender), let him justly inflict that punishment on men who act unjustly,"[xii]. The exercise of the coercive power of danda with regard to law-enforcement is considered just in the highest sense, since particularistic legal codes are considered to be concrete and detailed embodiments of the more abstract and exalted principles of justice which are fundamental to the cosmos (Underwood 1978).
The administration of
legal justice and infliction of punishment was performed on the basis of
1. The Judges[xiii]
It is found that jury system existed in Manu’s period and Manu recommended the king to give the power of judicial administration to Brahmins in his absence. It is also surprising to note the juries in the court of the Brahmin judge were also Brahmins. Manu has described such a court where three Brahmins versed in the Vedas and the learned judge appointed by the king as the court of four-faced Brahman. Manu has provided the qualifications of the king who can be the judicial administrator (Chakraborti 1996). The one who is truthful, who acts after due consideration, who is wise, and who knows the respective value of virtue, pleasure, and wealth can be the Judicial administrator. A king who properly inflicts punishment prospers with respect to those three means of happiness; but if he is voluptuous, partial, and deceitful he will be destroyed, even through the unjust punishment, which he inflicts. Manu felt that the judicial administration should not rest in the hands of a feeble minded king (Buhler 1984). If judicial administration were given to such a king he would destroy the whole country. Punishment cannot be inflicted justly by one who has no assistant, (nor) by a fool, (nor) by a covetous man, (nor) by one whose mind is unimproved, (nor) by one addicted to sensual pleasures (Das 1982). By this concept, we come to an understanding that Manu insisted on brahmanical assistance in the administration of justice. He also described the just administrator as a one who is pure (and) faithful to his promise, who acts according to the Institutes (of the sacred law), who has good assistants and is wise, in the infliction of punishment[xiv].
2. The Dangers of Injustice[xv]
Manu has signified the importance of the juries
for they should not fall in the wheel of injustice and if they do not accept a
trial, they may be punished. Manu believed that no one should go to the court,
but if there is a chance to go to the court then truth alone should be spoken.
Perjury is a crime according to Manusmriti.
If justice was destroyed by injustice, or truth by falsehood, and if the
judges were mere spectators, then they will be considered as offenders (Buhler
1984). Manu believed that 'Justice, being violated, destroys; justice, being
preserved, preserves: therefore, justice must not be violated, lest violated
justice destroy us.’ Manu gave utmost importance to justice and felt that
the only friend who follows men even after death is justice and everything else
is lost at the same time when the body (perishes). He has also divided the
guilt of injustice to various people. One quarter of the guilt of an unjust
decision falls on the offender, one quarter on the false witness, one quarter
on all the judges, one quarter on the king. However, if the offender who is
worthy of punishment is punished then the king is free from guilt, and the
judges are saved from sin and the guilt falls on the perpetrator alone. Manu
suggests that the administration of justice whether pure justice or injustice,
be according to the order of the castes (
Manusmriti has specified the part of the judge’s function to probe the heart of the accused and the witness by studying their posture, mind and changes in voice and eyes. Manu felt that the internal working of the mind could be perceived through the aspect, the motions, the gait, the gestures, the speech, and the changes in the eye and of the face (Buhler 1984). Hence, it can be asserted that Manusmriti is the first code of law to take account of judicial psychology.
In the distribution of stolen material, Manu does not insist on
discrimination between varnas. He has suggested that, the king should
restore the property stolen by thieves to men of all castes (
described the eligibility of persons who can be witnesses. Householders, men
with male issue, and indigenous (inhabitants of the country, be they) Kshatriyas,
Vaisyas, or Sudras, are competent, to give evidence, not any persons
whatever (their condition may be) except in cases of urgency (Buhler 1984).
Trustworthy men of all the four castes (
making the eligibility of witnesses, Manu is sceptical about women and persons
Manu counselled the king that he must not examine the competence of witnesses too strictly in all cases of violence, of theft and adultery, of defamation and assault. Manu gave importance to witnesses who can be added during the trial. When a man originally not appointed as a witness sees or hears anything and is afterwards examined regarding it, he must declare it exactly as he saw or heard it. Manu scorns of false witnesses, and is vary about hostile witnesses, and suggests that it may not be tolerated. However, he has also provided exception in the case of where when the truth would cause death to a person, he suggests lying. In a case at a later stage if it is found that a false evidence has been given in any suit the judge reverse the judgment, and whatever has been done must be considered as undone and case should be reinvestigated.
1. The Eighteen Causes of Legal Action[xix]
Manusmriti divides crimes in to 18 types (Buhler 1984; Chakraborti 1996). They are (1) non-payment of debts, (2) deposit and pledge, (3) sale without ownership, (4) concerns among partners, and (5) resumption of gifts (6) Non-payment of wages, (7) non-performance of agreements, (8) rescission of sale and purchase, (9) disputes between the owner (of cattle) and his servants, (10) disputes regarding boundaries, (11) assault and (12) defamation, (13) theft, (14) robbery and violence, (15) adultery (16) Duties of man and wife, (17) partition (of inheritance) (18) gambling and betting.
2. Verbal Assault[xx]
In the definition of various crimes and
punishment, Manu has strictly followed the
A Person who through arrogance makes false statements regarding the learning (of a caste-fellow), his country, his caste (varna), or the rites, by which his body was sanctified, shall be compelled to pay a fine of two hundred (panas). A Person even in accordance with the facts contemptuously calls another man one-eyed, lame, or the like (names), shall be fined at least one karshapana[xxii]. He who defames his mother, his father, his wife, his brother, his son, or his teacher, and he who gives not the way to his preceptor, shall be compelled to pay one hundred (panas). For mutual abuse by a Brahmana and a Kshatriya a fine must be imposed by a discerning (king), on the Brahmin the lowest amercement, but on the Kshatriya the middlemost. A Vaisya and a Sudra must be punished exactly in the same manner according to their respective castes, but the tongue of the Sudra shall not be cut (Buhler 1984).
3. Physical Assault[xxiii]
In cases of physical assault also, we can see
the different kinds of punishment based on
the three) highest (castes), even that limb shall be cut off. A Sudra who raises his hand or a stick, shall have his hand cut
off; he who in anger kicks with his foot, shall have his foot cut off.
A low-caste man who tries to place himself on the same seat
with a man of a high caste, shall be branded on his hip and be
banished, or (the king) shall cause his buttock to be gashed (Buhler 1984).
If out of arrogance a Sudra spits (on a superior), the king shall
cause both his lips to be cut off; if he urines (on him), the penis;
if he breaks wind (against him), the anus.
If he lays hold of the hair (of a superior), the (king) should
unhesitatingly cut off his hands, likewise (if he takes him) by the
feet, the beard, the neck, or the scrotum (Buhler 1984).
4. Damage to Property[xxiv]
A person who damages the goods of another, be it intentionally or unintentionally, shall give satisfaction to the (owner) and pay to the king a fine equal to the (damage). In the case of (damage done to) leather, or to utensils of
leather, of wood, or of clay, the fine (shall be) five times their
value; likewise in the case of (damage to) flowers, roots, and fruit (Buhler 1984).
5. Acts of Violence[xxv]
Manu has deeply emphasized the punishment of violent crimes. A king who wishes to attain Indra's throne and win imperishable and eternal fame, should never, even for a moment, overlook the man of violence. A violent man is to be regarded as the very worst kind of criminal, worse than one who is guilty of verbal abuse or theft or one who beats another with a stick. A king who tolerates the perpetrator of violence quickly goes to his own destruction and incurs hatred (Buhler 1984). Neither for friendship's sake, nor for financial gain, however high, may the king set free men of violence who are the cause of terror to all living beings.
In the prevention of violent crimes, Manu has provided the right of private defence. It is worth noting that the Indian Penal Code (Sections 96-106) also provides the right of private defence. Twice-born men may take up arms when they are hindered in
the fulfilment of their duties, to protect the
twice-born castes (
n their own defence, in a strife for the fees of
officiating priests, and in order to
protect women and Brahmins (Buhler 1984); It may sound grim that Manu was
suggesting the use of violence, however, it is recognition of a fundamental
human right, the right to use violent means to resist violence. The law is
explicit; it gives each person an absolute right to defend himself against
armed attack, even if it costs the attacker his life. It asserts that right
even when the attacker is one's guru or a learned Brahmin, two persons whom one
would normally regard as sacrosanct. Later shastras restrict the right of self
defence to the case in which it is impossible for the victim to make his escape
by running away, and then restrict the right to use violence in almost exactly
the way contemporary English law does, requiring the victim to avoid any
excessive injury to the attacker (Melling 2002). It is also astonishing to note
that Manu did not show any leniency for any
Manu strongly believed that the “danda” "the scepter”, a symbol of the power and authority was created by God and only fear alone would make the human beings to swerve not from their duties. Manu sturdily has advocated the theory of deterrence as the purpose of punishment and the infliction of punishment should be according to the principles of natural justice (Bose and Varma 1982). The king having fully considered the time and the place of the offence, the strength and the knowledge of the offender should justly inflict punishment on the offenders. The concept of the consideration of the offence and offender for the purpose of punishment falls in line with the modern principles of justice evolved by Jeremy Bentham and Ceseare Beccaria. Manu felt that only punishment can control all the human beings in the earth and gave utmost importance to punishment. However, he is chary of punishment given without proper judgment and felt that it may destroy the country[xxvi].
Manu cautions the king that if he does not punish the offenders who are
worthy of punishment, then, the stronger would roast the weaker, like fish on a
spit and a situation will arise, where, might may overrule the right. In a
country where punishment is not properly inflicted, the ownership would not
remain with any one; the lower ones would (usurp the place of) the higher ones
(Buhler 1984). The whole world is kept in order only by punishment, because
there is no one in the world who will always act in a just manner. Only the
fear of punishment runs the world. Manu also feared that if there was no
punishment then all castes (
Manu has identified ten places on the body in which punishment may be inflicted. The sexual organ, the belly, the tongue, the two hands, and fifthly the two feet, the eye, the nose, the two ears, likewise the (whole) body are the ten places in a body fit for punishment (Buhler 1984). From this view, we also come to know that Manu supported retributive justice. Manu is against unjust punishment and warns that unjust punishment will destroy reputation among men, and fame (after death), and will cause even in the next world the loss of heaven. Manu provides stages of punishment for an erring person if he continues to do the crime, first by (gentle) admonition, afterwards by (harsh) reproof, thirdly by a fine, after that by corporal chastisement. However, when the offender is not able to restrain such offence even by corporal punishment, then the four modes co jointly should be applied[xxviii].
Manusmriti has treated
different varnas and gender as unequal for legal purposes. The Hindu law
as codified by Manu was based on the principle of inequality. The punishment
for a particular crime was not same for all varnas. In fact, the
punishment varied depending on the
If a person has sexual
intercourse with a consenting woman of his own
Manu clearly asserts the supremacy of
Brahmanism by exempting Brahmins from any kind of punishment. In the case of
false evidence, all three other
of providing him capital punishment; but at the same time men of other castes shall suffer capital
punishment. He advises the king not to slay a Brahmin, though he have committed all
possible crimes, and the King should banish him, seizing his property and leaving him unhurt.
Manu even goes to the extent of asserting that No greater crime is known on earth than slaying a Brahmin and
a king, therefore, must not even conceive in his mind the thought of
killing a Brahmin[xxix].
Manu also have widely discriminated women in the administration of justice. Unequal punishments were to given for women who have committed the crime same as men. Manu has prescribed death penalty for women guilty of infidelity. Manusmriti prescribes that the wife who touches, meets, or even talks to a man who is not her husband is to be fed to animals. Lesbians were cruelly punished by having their fingers chopped off[xxx].
Melling (2002) tried to compare the different penalties inflicted on different classes for verbal abuses with the different ways fines are imposed for property crimes. He did a comparison and underlined that an interesting result has emerged.
In Chapter VIII 267 we read:
"A kshatriya who verbally abuses a Brahmin is fined 100 panas, a Vaisya 150 or 200, a Shudra suffers corporal punishment. If a Brahmin verbally abuses a Kshatriya, the fine is 50 panas, a Vaisya, half that, a Shudra, 12. .... If a once-born grossly insults a twice-born, he shall have his tongue cut out..."
Melling (2002) continues “It is tempting to read this text as privileging the higher castes at the expense of the lower. We might well guess that the same pattern would apply in all areas of the law; the higher the caste of the criminal, the lower the penalty, the higher the caste of the victim, the higher the penalty”. What, then of this ruling, in Chapter VIII 336:
"In a case where a common man would be fined a single scratch-penny, the King will be fined 1000, that is the established rule. For theft, the penalty on a Shudra is 8 times the value of the object stolen, on a Vaisya, 16, on a Kshatriya 32 times, And on a Brahmin 64 times, or 100 times or even 132 times, since he knows the nature of the offence."
Melling argues “True
enough, the shastras give privilege and protection to the higher classes, in
that they enforce respect to them and defend them against violence, but the
shastras also enforce on the higher castes a higher level of responsibility in
their dealings with others. We are certainly not dealing with a social ideal
based on any notion of equality, but equally it is not simple one based on
privilege. When it comes to issues of property relations, the shastras remind
us of the law code of the Incas of ancient
However, it is difficult
for us to accept Melling’s (2003) arguments, as the comparison he makes
is not a fair one. How can one compare a punishment of cutting the tongue or
corporal punishment with that of fine? Are both being same? Can we compare the
pain out these punishments? Melling (2003) also brings in an argument
that Manu has shown utmost care to animal welfare and even trees. Melling
(2003) finds that the law fining cruelty to animals and the law forbidding
the damaging of trees show that the legal theorists of ancient and medieval
Unequal justice is found to be the base of Manusmriti. The conflict between varna-vyavastha and the value of equality is more than obvious. In fact, this system of graded inequality seems to be the very essence of the varna-vyavastha. It denies equal respect to all in society. It denies equality before law. Whether it is the choice of names, or the manner of greeting, or the mode of entertaining guests, or the method of administering oath in the court, or the process of taking out the funeral procession, at each and every step in life, from birth to death, this system of graded inequality is to be applied and observed (Nath 2002).
In the pre-independent
However, in the post independent
spite of the provisions in the constitution for equality in justice, we can
find that Manu’s reminiscences in the village justice system playing a major
role in the dispensation of justice. Holden (2003) in her research on some
For Nietzsche the human
wisdom of Manu far surpassed that of the New Testament; for the British Raj it
seemed to be the perfect tool with which to rule the Hindus. No understanding
of Hindu society is possible without it, and in the richness of its ideas, its
aphoristic profundity, and its relevance to universal human dilemmas. Manu
stands beside the great epics, the Mahăbhărata and the Rămăyana. Many
commentators find Manu contradictory and ambiguous and others perceive a clear
thematic integrity (Penguin 1991; Doniger 1991). Even after several centuries,
it still generates controversy, with Manu's verses being cited in support of
the oppression of women and members of the oppressed castes (Olivelle 2004).
The criminal justice tenets of Manu are remarkable in its vision and
application. However the inequality in rendering justice based on
[i] Dharma means righteousness.
[ii] Puranas are ancient Indian Hindu mythological texts were stories are given to highlight the importance of Gods and Goddesses.
[iii] Smritis are a set of texts, which teach the eternal immutable dharma found in the Vedas. Many sages have written Smritis.
[iv] Manu is considered as the first lawgiver of
[v] Dharma-shastra is the "science of dharma" and is a set of texts, which teach the eternal immutable dharma, found in the Vedas. The Dharma-shastras expanded and remodeled in verse form the Dharmasutras.
[vi] Manusmriti was the most important of Dharma-shastras and is the most famous of the ancient texts. The Manusmriti prescribed rules for all of society, so that each person might live according to dharma. It is in the form of the dharma revealed by Brahma to Manu, the first man, and passed on through Bhrigu, one of the ten great sages.
[vii] Yajnavalkya, Vishnu, Narada, Brahaspati, Katyayana are ancient sages who are considered to be the authors of smritis or books of dharma.
[viii] Rig Veda is the oldest of the Vedas and they are the ancient holy texts of Hindus.
[ix] Satapatha Brahmana is an ancient Hindu text.
[x] She is considered as the first women in the Hindu mythology who may be comparable to Eve of Bible.
[xi] Manusmriti. Chapter VII. 20.
[xii] Manusmriti. Chapter VII. 16.
[xiii] Manusmriti Chapter VIII 8-11
[xiv] Manusmriti Chapter VII 20-31
[xv] Manusmriti Chapter VIII 12-22
[xvi] Manusmriti Chapter VIII 23-6
[xviii] Manusmriti Chapter VIII 61-123
[xix] Manusmriti Chapter VIII 4-7
[xx] Manusmriti Chapter VIII 267-78
[xxi] Pana is an Ancient form of currency which may be considered equivalent of present day Rupee, the Indian currency.
[xxii] Karshanpana is an ancient form of currency, which may be considered equivalent to Paise, the Indian currency.
[xxiii] Manusmriti Chapter VIII 279-87
[xxiv] Manusmriti Chapter VIII 288-9
[xxv] Manusmriti Chapter VIII 344-51
[xxvi] Manusmriti Chapter VII 14-19
[xxvii] Manusmriti Chapter VII 20-31
[xxviii] Manusmriti Chapter VIII 124-130)
[xxix] Manusmriti Chapter VIII 379-81
[xxx] Manusmriti Chapter VIII 356-372
[xxxi] Panchayat means village justice system where principles of natural justice prevail without any interference of the contemporary criminal justice system
[xxxii] Tribals of
[xxxiii] A holistic term for all low caste Hindus
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ABOUT THE AUTHORS
*Dr. K. Jaishankar is a Lecturer in the Department of Criminology and
**Debarati Haldar is an Advocate. She is presently in the final year of Master’s programme
in International Law,