Daṇḍa (Hindu punishment)

Incapacitation is a way to prevent the commission of a crime. An offender punished with death, banishment, imprisonment or mutilation permanently or temporarily prevents them from being able to repeat an offence. Many urged the king to amputate the offending limb of a thief to prevent them from stealing again. Cutting off a limb had both a preventative effect and ensured the same crime would not be committed again.[4]

One purpose for punishment is to prevent or discourage the commission of crimes or unlawful behaviour through deterrence. Deterrence can prevent people from committing a crime or from re-offending. According to the Mahabharata, people only engage in their lawful activities for fear of punishment by the king, in the afterlife, or from others. The main way to deter potential criminals from committing a crime was through the example of offenders' suffering. Manu recommends the king place prisons near a high road where the "suffering and disfigured" offenders could be clearly seen, making imprisonment both deterrent and preventative.[5]

Rehabilitation is another goal of Hindu punishment. Lawbreakers should be punished in a way that improves their character and conduct, and places the offender on the correct path. The Mahabharata recommends the king reform or correct criminals by punishment.[6]

In the Daṇḍaviveka, Vardhamāna outlines eleven factors affecting the severity of the punishment that will be meted out; according to it:

The caste (of the offender, Contrary to popular belief, the reality is that the punishment for a Brahmin criminal was 64 times more than that of a Shudra criminal.), the thing (involved in the offence), the quantity (of that thing), the utility (of that thing), the person, concerning who the offence has been committed (parigrahaḥ), the age (of the offender), power (i.e., the pecuniary condition of the offender), qualifications (of the offender), the place (of the commission of the offence), the time (of such commission) and the specific offense are the several factors (to be considered, while inflicting punishment).[2]^: 131

Every legal system considers mitigating factors but Hindu jurisprudence differs from most. From the beginning of a case, Hindu jurisprudence viewed each case as a sum of all of the factors, and all textually stated punishments are affected by the factors of a given case.[2]^: 131

If forgiveness is not possible or desirable, it is seen whether the circumstances of the offence are deserving of admonition. Admonition is to be used first and then censure. Both admonition and censure are the lowest and least-severe of the possible punishments because neither inflict physical pain or loss of property. When using censure, "a good man committing his first offense should be asked: 'Is this your evil action. Is it proper of you?'" Censure is a stronger disapproval than admonition.[3]^{: 152–153}

A fine is to be imposed when damage is done to another person; the amount of the fine is dependent on many factors. In the ancient Hindu tradition, it was generally accepted if a Kshatriya, a Vaishya, or a Shudra was not able to pay the fine, the offender was made to perform manual labour. It was expected Brahmins would pay the fine in installments. The last resort was to imprison the offender if the offender could not perform manual labour. In the modern era, any offender may repay the fine in installments but there cannot be more than three planned installments.[3]^: 153 According to the ancient Indians, the king must pay a heftier fine for committing a crime because he was the prosecutor of his subjects and was therefore an example for his subjects. In accordance with this idea, the king was made to pay 1,000 Karshapanas when a common man would be fined one Karshapana.[3]^: 154

There were conflicting views on how fines should be imposed on first-time offenders: either levy lenient fines or very heavy fines to prevent the offender from becoming a recidivist. It later became commonplace to base the amount of the fine on the nature of the crime, the ability of the offender to pay, whether or not it was the first offence, and whether an individual or a group had committed the crime. It was thought an individual should be fined a lesser amount because he or she had not conspired to commit the crime with others.[3]^: 154

The amount of fine varied according to the caste to which one belonged. A Shudra would pay eight times the amount of the damage, a Vaishya would pay sixteen times the amount, and a Kshatriya would pay thirty-two times the amount. A Brahmin would generally pay sixty-four times the amount but could be made to pay up to 100 times the amount of damage. The multiplier was different for each caste because the mental capacity of the offender and the offender's ability to pay the fine were taken into consideration.[3]^{: 154–155}

According to "Crime and Punishment in Ancient Hindu Society":

If a blow was struck against men and animals in order to give them pain, the Judge had to inflict a fine in proportion to the amount of pain caused. If a limb was broken or wound caused, or blood flowed the assailant had to pay to the sufferer the expenses of the cure, or the whole (both the usual amercement and the expenses of the cure) as a fine to the King. He who damaged the goods of another, intentionally or unintentionally had to give satisfaction to the owner, and pay to the King a fine equal to the damage.[3]^{: 155–156}

The offender must be fined proportionately to damage done, as well as repay the victim. Heftier fines were placed on certain items such as leather, utensils made from wood or clay, flowers, roots and fruits; the fines placed on these items were five times the value of the item damaged.[3]^: 156

If there was a connection between the offender and the victim, the fine could have been less than one imposed if no connection exists. This connection could be between master and servant, between people having mutual dealings, between people from the same village, or between kinsmen. According to "Crime and Punishment in Ancient Hindu Society": "Thus if a kinsman sold the owner's property the former was only to be fined 600 panas, but if he was not a kinsman, nor had any excuse he would be guilty of theft".[3]^: 156

For ancient Indians, the main function of imprisonment was deterrence. Prisons were to be situated near main roads, where offenders could be easily seen. The Dharmaśāstras do not state specific crimes for which imprisonment is required; neither do they do not state how long a prisoner should be kept. The king would decide who would be imprisoned and for how long.[3]^: 158 People who received stolen property "had to be put in iron fetters, kept on a lean diet, and made to do manual labour for the King till their death".[3]^: 160 Brahmins could be sent to prison if they had committed a crime that required mutilation but the Brahmin would not be forced to perform manual labour but instead could be made to do menial labour such as cleaning dirty dishes.[3]^: 161

Mutilation of body parts is a remnant of the ancient Hindu punishment. It was used when an offender caused injuries to the victim. Mutilation was most typically seen as a punishment in cases of theft, robbery, and adultery as a way of making the criminal an example to the public because the mutilated body was a horrifying sight. Typically, whatever limb the person of the lower caste used to hurt a man of a higher caste would be cut off. Mutilation was also used to deter the offender from repeating the crime. By amputating the limb that was used to commit a crime—for example, stealing cows belonging to a Brahmin resulted in the offender losing half his feet—the offender would physically be unable to commit such crimes again. There were eight main sites of mutilation: the organ, the belly, the tongue, the hands, the feet, the eye, the nose and the ears.[3]^{: 163–164}

Under the Indian Penal Code, the death penalty is reserved for the gravest offences: these are waging war against the Government of India, encouraging a mutiny that is carried out; giving false evidence that results in the conviction, sentencing to death and execution of a person; murder under the notion of an eye for an eye; encouraging the suicide of a minor, an insane person or a person who is intoxicated; attempting to murder when harm is caused; and committing murder during a robbery by a gang. For all seven of these cases, there is the alternative of lifetime imprisonment. As of 2023, attempts are made to find mitigating and extenuating factors so the lesser punishment is inflicted. It was commanded the king should avoid capital punishment and instead detain, imprison and repress offenders.

There are some main differences between the ancient and the modern Indian law with respect to the death penalty. In classical India, the death penalty was permissible in a very large number of cases and was not solely prescribed in cases in which death resulted or was likely to result but was extended to cases such as adultery and theft. There were numerous ways to inflict the death penalty, unlike modern India which uses hanging for executions. In modern India, the death penalty is an exception whereas in ancient India it was a rule. Today, the underlying principle seems to be retributive but in classical India it was a means of deterrence. As of 2023, the law in relation to the death penalty is the same regardless of caste or colour but in ancient India, Brahmins were never subject to the death penalty.[3]^{: 164–168}

Whipping was done with a whip, cane, rope or similar instrument. Whipping was performed upon women, children, men of unsound mind, the impoverished and the sick. Whipping and the other forms of corporal punishment would only be inflicted if admonition, censure and fines had failed to reform the offender.[3]^: 169

Branding was often reserved for Brahmins who had murdered another Brahmin, committed incest, stolen gold, or drunk wine. Brahmins who murdered another Brahmin would receive the brand of a human trunk on his forehead. Brahmins who committed incest would receive the brand of a female organ on his forehead. Brahmins who stole gol would have the brand of a dog's foot on his forehead. Brahmins who had drunk wine would bear the brand of a banner on his forehead. After being branded, the Brahmin would be cast out of her or his own country and he would not be welcomed anywhere else due to the brand on their forehead. For all four castes, branding could be avoided if the offender performed the proper prāyaścitta. Men of other castes could be branded and banished if they had an affair with another man's wife.[3]^{: 171–172}

A person who had been punished by being branded would be banished from her or his community. The idea of banishment after being branded probably originated with the king. No respectable king would want to have offenders displaying such brands in his kingdom. Besides being banished after branding, other crimes would warrant being banished. A Shudra, Vaishya or Kshatriya who gave false evidence would be fined and banished but a Brahmin, who committed the same crime would only be banished. If a man, who belonged to a corporation situated in a village broke an agreement due to greed, his punishment would be banishment. The Dharmaśāstras also proscribe breaking a bone of another person, gambling, and "dancers, and singers, cruel men, men belonging to an heretical sect, those following forbidden occupations, and sellers of spirituous liquor",[3]^: 172 lest one should be banished. Those who intentionally committed a crime would be banished. If an able person was to sit idly by as a "village is being plundered, a dyke is being destroyed, or a highway robbery committed"[3]^: 172 would be banished with his or her belongings. Those who damaged a town wall, broke a town gate, or filled a ditch near a town would instantly be banished. A lower caste man who through deceit survived by working in an occupation belonging to one of a higher caste, the king could banish the man and confiscate his property. A defendant who had lost and denied an owed sum of money was to be banished. Assessors who cheated others, took bribes, or gave wrong judgments would also be banished. According to Visṇu and Nārada, those who hypnotize others or play foul should be branded and banished.[3]^{: 172–173}[13]

In ancient Hindu society, the entire private property of an offender would be confiscated, whereas the Indian Penal Codes only confiscate property used in the commission of the crime. In ancient India, there were seven kinds of crimes that warranted confiscation of property; these were officials who accepted money from suitors with poor intentions; Shudras who had sexual intercourse with a woman of a higher caste; Vaishyas who had sexual intercourse with a Brahmin; traders who exported goods over which the king had a monopoly or whose export was forbidden; and official who were supposed to administer public affairs but were corrupted by wealth and had disrupted the business of another. The furniture of a woman who disrespected her drunkard or diseased husband could be taken. The entire property of a person, unless they were a Brahmin, could be taken if that person had unintentionally committed a crime.[3]^{: 174–175}

There are some notable differences between the way ancient punishment was to be administered and how modern punishment is administered in Hindu societies. If a criminal confessed to a crime, he or she would receive half of the prescribed punishment in ancient India; in 21st-century India, however, confessing does not mitigate one's punishment. In ancient India, one's caste would affect the punishment she or he would receive but in 21st-century India, caste does not play a role. Modern law in India dictates only laws that have been conceived and are written down may be enforced whereas in ancient Indian law, a person could be prosecuted for a crime that has not been written down if a Sishta, a Brahmin who had studied the Veda, declared the act to be a crime. In ancient India, the wife of a Shudra man could be confiscated if he had an affair with a woman of a higher caste, which would be inconceivable in modern India.[3]^{: 177–180}