Manusmriti: A Critique of the Criminal Justice Tenets in the Ancient Indian Hindu Code

 

K. Jaishankar*

Manonmaniam Sundaranar University, India

 

Debarati Haldar**

University of Madras, India

 


Abstract

The Manusmriti is the Hindu code of ancient India, which dealt with the relationships between social and ethnic groups, between men and women, the organization of the state and the judicial system, reincarnation, the workings of karma, and all aspects of the law. This Hindu Code is important for its classic description of so many social institutions that have come to be identified with the Indian society. 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. A few chapters of Manusmriti deal with crime, justice, and punishment. The criminal justice system in ancient India was found to be based on the Varna system and the Manusmriti defined crime and punishment for each Varna in a hierarchical mode. The present paper is a critical analysis of the criminal justice tenets found in the code.  

 

Key words: Manu; Manusmriti; Hindu Code; Crime; Punishment; Criminal Justice  

                                                   


 

Introduction

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)

            Manu's 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 India. The Sanskrit text was first translated into English in 1794, and translations into other European languages swiftly followed (Doniger 1991; Drapkin 1989). Many Scholars even have done Ph.D./D.Litt on Manusmriti (Betai 1957, 2003; Bahadur 1998; Das 1978, 1982).

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 India was found to be based on the Varna system and the Manusmriti defined crime and punishment for each Varna in a vertical hierarchical mode.

 

The Varna system

Without the knowledge of Varnashrama Dharma one may not be able to understand the nuances of Manusmriti. The Varna' popularly known as the 'Caste system' is perhaps the most explosive topic in Hinduism. The word "Varna" is derived from the root 'VR' to screen, veil, covering, external appearance' - Varna also means colour. Varna was used to denote groups having different skin coloration. The Aryans were fair skinned and the Dravidians black skinned. Thus, white or fair complexion was considered as belonging to Brahmins (priestly), red to Kshatriyas (princely), yellow to Vaisyas (commercial) and black to Sudras (serving). But colour is only one of the many aspects of the term. Varna also denotes species, kind, character and nature. Racial, tribal and familial solidarity had also a part to play in the origin of the 'Varna' system. The divisions may have been made based on religious beliefs, cult practices, and even eating habits. Above all, there is the theory that the Varnas derived their basis from the Purushasukta (Rig Veda 10.90) in dividing mankind into four socially separate interdependent categories and this was incorporated in the Manu Dharmasastra (Singh 1998; Bhatia 2001).

Manu Dharmasastra expressed and reinforced the 'Varna' division. According to Manu Dharmasastra, Brahmins were to be the spiritual and temporal guides, teachers and exponents of law; Kshatriyas were the warriors, princes and kings - in short, the nobility; Vaishya, took on the tasks of agriculture and merchantry; and Shudra included individuals who performed service communities -- manual and agricultural labourers, artisans, masons, etc. Except Sudras, all the other three varnas were called as Dwija or twice born. The meaning of twice born is that after a birth the three Varna’s (Brahmins, Kshatriyas and Vaishyas) are again born with the investiture with the sacred thread, the symbol of a child’s admittance to membership in his Varna (Dongali 1986). It is believed, that, the Varna system was based on the principle of 'Division of Labour' and the suitability of the different groups for the different categories of occupations. However, Varna system was based on inequality and each Varna was classified in a vertical hierarchy.

 

Administration of Justice

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 India through the centuries that nature, itself, is the ultimate and final arbiter of justice. Ultimately, justice is cosmic justice (Underwood 1978).

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 Varna system. Manusmriti considers that it is only natural to take Varna into account in the administration of legal justice. Manu indicates that the king, acting as judge should consider "the strength and knowledge" of the defendant. His strength and knowledge are estimated as functions of his Varna. Legal consideration of varna rank has two main outcomes, one having to do with responsibility, the other with privilege, and one concerning the perpetrators of crime and the other its victims. Crimes against persons were adjudicated with reference to the class-status of the victim and the perpetrator. The penalty for a crime was increasingly severe the higher the Varna of the victim and lower the Varna of the perpetrator (Das 1982). One of the chief duties of the king was the maintenance and protection of the Varna system through his power of danda (the sceptre). The king obeyed this concept because it is realized that Varna and the state are necessary aids to the achievement of the final goal of life (Underwood 1978; Lahiri 1986). The legal distinctions of ancient India are firmly based on an ideal of equity and justice expressed in terms of hierarchy rather than of equality.

 

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 (varna)(Buhler 1984).

 

3. Judicial Psychology[xvi]

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.

  

4. General Principles of Law[xvii]

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 (varna). Manu is also aware that kings of greedy nature may emerge. Therefore, he has insisted that a king who uses such (stolen property) for his personal use incurs the guilt of a thief. Since Manu’s laws were based on Varna system and each Varna has it own laws. Therefore, Manu suggests that the king, who knows the sacred law, must inquire into the laws of castes (varna), of districts, of guilds, and of families, and (thus) settle the peculiar law of each. Manu warns that neither the king nor any servant of his, shall himself or herself cause a lawsuit to be begun, or hush up one that has been brought before them by some other man (Buhler 1984). This concept is different from the modern principle of law, where a magistrate can initiate a case. Manu gives a simile that a king shall discover on which side the right lies, by inferences (from the facts) like a hunter who traces the wounded deer by the drops of blood. He also counsels that the king, when engaged in judicial proceedings must pay full attention to the truth, to the object of the dispute, and to himself, next to the witnesses, to the place, to the time, and to the aspect.

  

5. Witnesses[xviii]

Manu has 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 (varna) may be made witnesses in lawsuits, men who know their whole duty, and are free from covetousness and others should be rejected. The persons who must not be made witnesses are who have an interest in the suit, family, friends, companions, and enemies of the parties, men formerly convicted of perjury, persons suffering under severe illness, and those tainted by mortal sin. The king also cannot be made a witness. Manu advocated the use of judicial psychology when the king examines the evidence of infants, aged and diseased men, who are apt to speak untruly, as untrustworthy, likewise that of men with disordered minds.

While making the eligibility of witnesses, Manu is sceptical about women and persons of lower Varna. Therefore, he insists that women should give evidence for women, and for twice-born men for twice-born men of the same kind, Sudras for Sudras, and men of the lowest castes for the lowest. We are also able to find a note on dying declaration. Manu has given exception in cases where a crime occurs inside a house, a forest, or a person who is about to die of homicide, and then, whoever is near the victim can be the witness. When suitable witness was not available then evidence can be given by a woman, by an infant, by an aged man, by a pupil, by a relative, by a slave, or by a hired servant.

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.

 

Crime and Punishment

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 Varna system. In cases of verbal assault, we can see the different kinds of punishment based on Varna.  A Kshatriya, having defamed a Brahmin, shall be fined one hundred (panas[xxi]); a Vaisya one hundred and fifty or two hundred; a Sudra shall suffer corporal punishment. A Brahmin shall be fined fifty (panas) for defaming a Kshatriya; in (the case of) a Vaisya the fine shall be twenty-five (panas); in (the case of) a Sudra twelve. For offences of twice-born men against those of equal caste (varna, the fine shall be) also twelve (panas); for speeches, which ought not to be uttered, that (and every fine shall be) double. A once-born man (a Sudra), who insults a twice-born man with gross invective, shall have his tongue cut out. If a Sudra mentions the names and castes (varna) of the (twice-born), an iron nail, ten fingers long, shall be thrust red-hot into his mouth. If a Sudra arrogantly teaches Brahmins their duty, the king shall cause hot oil to be poured into his mouth and into his ears (Buhler 1984).

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 Varna. With whatever limb a man of a low caste does hurt to (a man of

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 (varna) in (evil) times, i

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 Varna person with regard to violent offences.

 

Punishment

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 (varna) would be corrupted (by intermixture), all barriers would be broken through, and all men would rage (against each other) in consequence of mistakes with respect to punishment[xxvii].

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].

 
Criticism on Manu’s Criminal Justice

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 Varna of the victim as well as the Varna of the person committing the crime. For the same crime, the Brahmin was to be given a mild punishment, whereas the Shudra was to be given the harshest punishment of all. Similarly, if the victim of a crime was a Shudra, the punishment was mild, and the punishment was harsh in case the victim was a Brahmin. For example, if a Brahmin is awarded death sentence, it is sufficient to shave his head, but Kshatriya, Vaishya and Shudra are to actually die. If a Kshatriya, a Vaishya, or a Shudra repeatedly gives false evidence in the court, he is to be punished and expelled from the kingdom, whereas the Brahmin is not to be punished, he is to be only expelled (Buhler 1984)..

If a person has sexual intercourse with a consenting woman of his own Varna, he is not to be punished. But if a person of lower Varna has sexual intercourse with a woman of higher Varna, with or without her consent, he is to be killed. If a Brahmin forces a dwija to work for him, he is to be punished. But if a Brahmin forces a Shudra to work for him, whether by making or not making payments to him, he is not to be punished, because Shudras have been created only for serving Brahmins. If a Brahmin abuses a Shudra, he is to be fined mildly, but if a Shudra abuses a Brahmin, he is to be killed (Buhler 1984). On the other hand, even if a Brahmin kills a Shudra, he is merely to perform penance by killing a cat, frog, owl or crow, etc. Thus a Shudra is to be killed for abusing a Brahmin, whereas a Brahmin is to be let off lightly even if he kills a Shudra (Nath 2002).

Manu clearly asserts the supremacy of Brahmanism by exempting Brahmins from any kind of punishment. In the case of false evidence, all three other Varna persons should be fined and banished, but a Brahmin should only be banished. Manu has identified ten places on which punishment may be inflicted for three varnas, but exempts Brahmin to depart unhurt from the country. Manu suggests that it is better to tonsure the head of a Brahmin instead

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 Peru. The Inca punished crimes against property with great severity, and the higher the rank of the criminal, the more severe the penalty, but if a man could show he had been forced to steal to put food in his mouth, he was declared innocent, and the local Governor was put to death instead”.

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 India were developing the law to assert human duties to animals and to the environment. It may be true that Manu has shown importance to animal welfare but one should be fair enough to accept the most shocking fact is that he has lowered a section of people (Sudras) to animals. One might wonder that how can a person like Manu who insisted on Dharma be highly partial to Sudras alone. The reason Manu has fixed is that the justice was based on the Varnashrma Dharma and he felt that the discrimination of Sudras was correct. Dharma means righteousness and what kind of righteousness be when one set of people be discriminated on the grounds of their community or group?      

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).

 

Does Manu’s code have contemporary relevance?

In the pre-independent India it was the British who resurrected the Manusmriti and used it to frame the "Hindu Civil Code". Before colonization, the Manusmriti was nothing more than an obscure text, long-forgotten and rarely used to determine what was acceptable social practice (Keshwar 2003). The Manusmriti came in very handy in social control, because the numerical presence of the British in India was not substantial, the British had to rule largely by proxy. It was important that their agents did not face resistance or rebellion, even in the social realm. Owing to it's repressive and highly divisive character, the Manusmriti helped in preventing both individual and collective resistance to local authorities, who were typically upper caste and often Brahmin. That the Manusmriti represented an archaic and outdated social code did not matter. It fit in very well with the British colonial project. It was also convenient in providing ideological cover for repressive legal steps the British wanted to take anyway. For instance, it did not hurt that the Manusmriti advocated laws that legitimised gender discrimination or attacked same-gender relationships. Such attitudes were then equally prevalent in Europe and it made it easier to disenfranchise women in matters of inheritance or introduce legal injunctions against same-gender sexual relations (as was the case in Britain during the 18th Century).

However, in the post independent India, under the leadership of B.R. Ambedkar the Indian constitution was made and he took efforts to see that no discrimination creeps in to the constitution. The constitution of India (1950) was a remarkable achievement in the elimination of discrimination on the lines of caste in the administration of justice. The Constitution of India has sought to create a more equal and just rule of law between individuals and groups than what existed under traditional authorities such as Manusmriti. The Indian Constitution strives to eliminate the humiliation that people suffered under the traditional social system of caste and patriarchy, thus creating new ground for realization of human dignity. The realization of both formal and substantive equality that is happening under the rule of law in contemporary Indian society can facilitate a more creative flourishing of a life of dharma or righteous conduct in self and society (Giri 2002).   

However, in 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 villages in India, have found out that most of the village justice system is based on caste and found out that many of the principles grounding the traditional panchayat’s[xxxi] decisions have an evident source in the ancient Hindu tradition. Caste which is now a far different version of Manu’s Varna has occupied the central seat of village justice system. However, one cannot deny the roots of caste from Varna system. All through human history, oppressed castes have suffered social discrimination of one kind or another. Any social system that is based on unequal access to will inevitably lead to some form of social discrimination and inequity. Victims of older forms of discrimination will either continue to be victimized, or simply become victims of new forms of discrimination. The caste and gender discrimination continue to cause grave harm, that Adivasis[xxxii] and Dalits[xxxiii] still face all manner of trials and tribulations, and all such social inequities need to be fought with continued vigour.  

 

Conclusion

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 Varna system is a chink in the armour of Manu, the first lawgiver of India. To conclude we feel it is worth mentioning what Jawaharlal Nehru (1990) told about religion in the context of codes and law: “Religions have laid down values and standards and have pointed out principles for the guidance of human life. But with all the good they have done, they have also tried to imprison truth in set forms and dogmas, and encouraged ceremonials and practices which soon lose all their original meaning and become mere routine”.



[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 India.

[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

[xvii] Manusmriti Chapter VIII 40-46

[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 India

[xxxiii] A holistic term for all low caste Hindus

 

References

Bahadur Jung R.B.S.S. (1998). Crime and Punishment in Manusmriti and Economics.  Ph.D. thesis submitted to Dr. Hari Singh Gour University, Sagar.

 

Basham, A.L. (1967).  The Wonder that was India. London: Sidgwick & Jackson.

 

Betai, R.S. (2003) Evolution of Law of Crimes in Ancient India. Delhi: Bharatiya Kala Prakashan. Based on the author's thesis (Ph.D, 1957).

 

Bhatia, H.S. (2001). Vedic and Aryan India: Evolution of Political, Legal and Military Systems/edited Reprint. First Published in 1984/86. New Delhi: Deep and Deep Publications.

 

Bhattacharaya, C. A. (1990). The concept of theft in classical Hindu law: an analysis and he idea of punishment, Delhi: Munshiram Manoharlal publishers.

 

Bose, S. and P. Varma., (1982) Philosophical significance of Ancient Indian Penology, Journal of Indian Philosophy 10(1) pp 61-100.

 

Buhler, G. (1984). The Laws of Manu. Delhi: Banarsidass. (Reprint from Oxford University's 1886-edition)

 

Chakraborti, H. (1996). Criminal Justice in Ancient India. New Delhi: Vedams eBooks (P) Ltd.

 

Das, R. M. (1982). Crime and punishment in ancient India: with a particular reference to the Manusmrti, 1st ed., Bodh-Gaya : Kanchan Publications ; Based on the author's thesis (D. Litt. -- Magadh University, 1978).

 

Dongali, D. (1986). Crime and punishment in ancient Hindu society. Delhi: Ajanta Publications.

 

Doniger, W. (1991). The Laws of Manu. London: Penguin Books Ltd.

 

Drapkin, I. (1989). Crime and Punishment in the Ancient World, Lexington (Mass.): Lexington Books, , xviii, 423 p., see "Ancient India and the Laws of Manu" at pp. 99-133.

 

Giri, A. K. (2002). Rule of Law and Indian Society: Colonial Encounters, Post-Colonial Experiments and Beyond , Jura Gentium, Centre for Philosophy of International Law and Global Politics. Retrieved on August 13, 2004 at http://dex1.tsd.unifi.it/juragentium/en/index.htm?surveys/rol/giri.htm

 

Griffith, P. (1971). To Guard My People: The History of the Indian Police. Bombay: Allied Publishers.

Holden, L. S. (2003). Custom and Law Practices in Central India: Some Case Studies, South Asia research. Vol 23 No 2: November 2003, pp.115–134.

 

Jayaswal, K. P. (1930). Manu and Yajnavalkya - a comparison and a contrast; a treatise on the basic Hindu law. Calcutta: Butterworth.

 

Jois, R. M. (1990). Legal and Constitutional History of India, Vol.I & II. Bombay: N.M.Tripathy  Ltd.

 

Kishwar M. (2003). From Manusmriti to Madhusmriti:  Flagellating a Mythical Enemy, Manushi. Retrieved on August 12, 2004 at http://free.freespeech.org/manushi/117/manusmriti.html

Lahiri, T. (1986). Crime and punishment in ancient India. New Delhi : Radiant Publishers.  

McGrath, J. I. (2003). Dharmasastras, Retrieved on August 15, 2004 at http://philtar.ucsm.ac.uk/encyclopedia/hindu/ascetic/dharma.html

 

Melling, D.J. (2002) A DREAM of JUSTICE, a VISION of PEACE ....  Excerpts from a talk originally delivered to the Indian Classical Music Society at Gita Bhavan, Manchester. http://www.nalanda.demon.co.uk/cityof.htm

Menski, W. F. (1991). Crime and Punishment in Hindu Law and under Modern Indian Law.  Bruxelles: De Boeck (series; Transactions of the Jean Bodin Society for Comparative Institutional History; vol. 58).

Nath, R. (2002)Why I Am Not a Hindu, Retrieved on August 12, 2004 at http://www.infidels.org/library/modern/ramendra_nath/hindu.html

 

Nehru, J. (1990). Discovery of India. USA : Oxford University Press

 

Olivelle, P. (2004). The Law Code of Manu. USA : Oxford University Press

 

Penguin (1991) Introduction to Manu. Retrieved on August 16, 2004 at http://www.penguin.co.uk/nf/Book/BookDisplay/0,,0_0140445404,00.html

 

 

Pillai, A.(1983). Criminal Law. Bombay:  N.M. Tripathi

 

Raghavan, R.K. (2002). World Factbook of Criminal Justice Systems: India (U.S. Department of Justice, Bureau of  Justice Statistics. Retrieved on August 15, 2004 at http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjind.txt

 

Sharma, S.D. (1988). Administration of Justice in Ancient India. New Delhi: Sundeep Prakashan.

 

Singh, U.B. (1998). Administrative System in India: Vedic Age to 1947. New Delhi: APH Publications.

 

Thapar, R. (1990).  A History of India, Volume I. London: Penguin.

 

Underwood, F. B. (1978) Aspects of Justice in Ancient India, Journal of Chinese Philosophy V. 5 pp. 271-285.

 

Wayman, A. (1970). Varnaa`srama-dharma; Ends and Obligations of Man, In: Joseph W. Elder (ed.) Lectures in Indian Civilization, Kendall/Hunt Publishing Company: Dubuque, Iowa pp. 68 ff. p.284.

 

ABOUT THE AUTHORS

*Dr. K. Jaishankar is a Lecturer in the Department of Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, India. He received his Ph.D. in Criminology from the University of Madras, Chennai, India. His research interests include Communal Violence, Crime mapping, GIS, Policing, Crime prevention, and Victimology. Please send correspondence to Department of Criminology and Criminal Justice, Manonmaniam Sundaranar University, Abhishekapatti, Tirunelveli, Tamil Nadu 627 012 India. Email: drjaishankar@gmail.com 

 

**Debarati Haldar is an Advocate. She is presently in the final year of Master’s programme in International Law, University of Madras. She received her LLB degree from the University of Calcutta. Her research interests include Legal History, Terrorism, Violence, and its International Law ramifications.