Punishment and Sentencing Policy - Historical Perspective: Chapterii

║ChapterII║
Punishment and Sentencing

Policy – Historical Perspective
Chapter II
Punishment and Sentencing Policy –

Historical Perspective
This is why God honours the sword so highly that he says

that he himself hasInstituted it (Rom. 13:1) and does not
want men to say or think that they haveInvented it or
instituted it. For the hand that wields this sword and kills
with itIs not man’s hand, but God’s; and it is not man, but
God, who hangs, tortures,Beheads, kills, and fights. All
these are God’s works and judgments. 1
2.1 INTRODUCTORY
It is generally said that ‘the life of the law has not been logic; it has
been experience’. The law reflects the story of a nation’s development
through many centuries and evolves out of the felt necessities of the
time, along with the prevalent moral and political theories. The origin
and development of the criminal justice in India has an antiquarian
past in the history of penal thought. We have had a glorious history
of Manu and an ancient wisdom of Shrutis and Smritis. The history of
crime in India clearly indicates that the concept of crime and
criminal justice system of today owes its origin to the authoritative
sources such as Manusmriti, NayaMimansaand
1 Martin Luther, “Whether Soldiers, too, can be Saved” (1526). Translated by

Charles M. Jacobs and Robert C. Schultz in The Christian in Society III,
Fortress Press, Philadelphia, (1967).
| Punishment and Sentencing Policy – Historical Perspective | 17|

Kautilya’sArthshastra. These sources clearly exhibit that a well
defined criminal policy existed in the early days of Hindu society. The
concept of crime is transforming and has mutated along with the
socio-economic fabric of the society. The concept of crime is
essentially concerned with the conduct of the individuals in society.
Moreover, it has always been determined by the zest and movements
of public opinions and social sanctions in the realm from time to
time.
Although, Thomas Hobbes is usually remembered for his principle

that life is ‘solitary, poor, nasty, brutish and short’, he actually said
in his famous work, Leviathan, that this was the condition of the
man before the social contract 2, i.e. in his natural state. Natural law,
he contends, teaches us the necessity of self preservation: law and
government are required if we are to protect order and security 3.
Everyone as a member of the society owes certain duties towards his
fellowmen and at the same time have certain rights and privileges
which the other has to ensure for him.
2 Thinkers who believe in this theory argues that people benefit from living
together in countries, kingdom or under other types of governmental
oversight. Living in society however requires rules and laws. Societies are
the result of compromises and social contract provide the framework for
how people and government interact. Retrieved from
<http://study.com/academy/lesson/Social-contract-theory-definitions-
example.html> last visited on 20th November, 2016 at 14:09 IST.
3 N.K. Dutta, Origin and Development of Criminal Justice in India, Deep and
Deep Publications, New Delhi, (1990), p. 6. Thomas Hobbes acknowledges
that since we are selfish we are likely, out of self-interest, to breach
contracts. I may break my agreement not to steal from you when I think I
can evade detection. And you are aware of this. The only certain means of
avoiding this breakdown in our mutual obligations, he argues, is to grant
unlimited power to a political sovereign to punish us if we violate our
contracts. And again it is purely selfish reason that motivates us to agree to
the establishment of an authority with the power of the sanction. But he
insists that only when such a sovereign exists can we arrive at any objective
determination of right and wrong.

In ancient times there was no comprehensive definition of crime.
Crime was simply perceived as disobedience of the king’s command
or non performance of the moral duties. Manusmriti prescribes for
crimes, various punishments to be applied to different Varna’s.
Crime was dealt with harshly in the ancient world. Early human
settlements had no legal codes, courts, prisons or other systems for
dealing with crime, so most often crime was punished by family
retribution. If someone committed a crime against another person,
that person’s clan would hunt down the perpetrator and mete out
punishment. Crime was always a personal matter 4.
2.2 PUNISHMENT IN ANCIENT PERIOD
Legal norms are the basis on which criminals and non criminals are
distinguished. The law laid down by Gautama, Vasistha etc.
represent an earlier stage than those of Manu. One of the forms of
substitutes for individual action is the law of equal retaliation, which
was a common element in many of the ancient codes of law. Amongst
the oldest of the known legal codes with schedules of penalties for
specific crimes are those of ancient Sumerians and Babylonians. Of
these the Code of Hammurabi 5, the sixth King of Babylon, has been
most completely preserved. The criminal law of ancient and primitive
4 P.K. Sen, Penology, Old and New, Tagore Law Lectures, Calcutta, (1983),
pp. 7-8.
5 Raymond Wacks, Law: A Very Short Introduction, Oxford University Press,
New York, (2008), pp. 3-5. Among the first written codes is that of
Hammurabi, King and creator of Babylonian empire. It appeared in about
1760 BC, and is one of the earliest instances of a ruler proclaiming a
systematic corpus of law to his people so that they are able to know their
rights and duties. Engraved on a black stone slab, the code contains some
300 sections with rules relating to a broad array of activities ranging from
punishment that is to be inflicted on a false witness i.e. death to that to be
meted out to a builder whose house collapses killing the owner. The code is
almost entirely devoid of defenses or excuses, a very early example of strict
liability. Moreover, to resolve disputes between higher and lower ranked
citizens, the Romans issued, in tablet form, a compilation of laws known as
the Twelve Tables.

society appears to be haphazardly explained, but on a focused and
clearer study, it reveals to us that they are very scientifically placed. 6
It was held in the case of V.D. Dhanwateyv. Commissioner of Income

Tax 7, that, ‘while interpreting the ancient texts, the courts must give
them a liberal construction in furtherance of the interest of the
society. Our great commentators in the past bridged the gulf between
law as enunciated in the Hindu law texts and the advancing society
by wisely interpreting the original texts in such a way as to bring
them in harmony with the prevailing conditions. To an extent, that
function has now been discharged by our superior courts’.
2.2.1 Hindu Period
The dawn of history was the golden age. In Satyayuga, the rules of
conduct were strictly observed by all including the King, or the
headman of the tribe. Where there was no infringement of any rule or
law, there was no question of punishment. Men were not wicked, and
they adhered to truth and virtue. They never departed from
established customs and traditions. That era was of complete
happiness for all because even if anyone erred at all, he ratified his
errors by prayers and sacrifices. In fact they were ruled by Dharma
and they even did not find it necessary to have a King or his laws.
This period was followed by the intrusion of the Aryans in the
country. Some rules of social conduct were needed to prevent the
growth of brutish instincts in man. To prevent an anarchical state in
society, the rules of conduct were promulgated. Hence, it leads to the
existence of the concept of sin and crime. The administering
authority had to punish both after due enquiry and investigation.
6 George B. Vold, Theoretical Criminology, Oxford University Press, Oxford,

(1979), p. 36.
7 AIR 1968 SC 683.

The main end of punishment according to the Hindu Law was
deterrence and retribution. The fundamental idea of severe
punishment recommended against criminals perhaps was to strike
terror in the hearts of all potential criminals by the infliction of sure
and swift punishment. The ‘tooth for a tooth and an eye for an eye’
concept had a strong hold. In MatsyaPurana, it is stated that if the
King did not inflict the punishment, the strong would oppress the
weak just as big fish swallow the smaller one. 8 In ancient India,
Danda was considered to be an essential constituent of a social and
legal society. It basically, signified the punishment for violation of
any law.
The Dharamasutras are the first four texts of the Dharamashastras

tradition and they focus on the idea of dharma, the principle guide
by which Hindus strive to live their lives. The Dharamsutras can be
called the guidebooks of dharma as they contain the rules of
conduct. They also discuss the rights and duties of the King, judicial
matters, and even the personal practices like the regulations in diet,
offences and expiations etc. 9 The entire provisions for dealing with
various kinds of crime were given in the Smritis of Brihaspati, Narada
and Katyayana. These Smritisgave a detailed consideration to crimes
against person including abuse and assaults of various kinds, crimes
relating to property both private and public and sex offences. Still to
mention a little more, it was believed that the creator himself laid
down certain rules of conduct and some were formulated by people of
wisdom for example, the sage Pardvesi laid down the law of
monogamy for women and Sukracharya is believed to have created
the laws of prohibition. Hence, whatever the wise learned man
8 R. B. Pal, The History of Hindu Law, Tagore Law Lectures, Calcutta, (1930),
p. 278.
9 Patrick Olivelle, Dharmasutras: The Law Codes of Ancient India, Oxford
World Classics, Oxford, (1999), p. xxi.

pronounced that came to be considered as the law 10. In the case of
Atmaramv. Bajirao 11, the Privy Council held that “the commentators
while professing to interpret the law as laid down in the Smriti,
introduced changes in order to bring it into harmony with the usage
followed by the people governed by the law and that it is the opinion
of the Commentators which prevails in the provinces where their
authority is recognized”.
2.2.1.1The Basis of Classification of Criminals
Criminals in ancient India were classified according to the type and

graveness of the crime committed.
MAHAPATAKAS ANUPATAKAS UPAPATAKAS
Killing of a Brahmana Samkarikara (causing admixture Man who defiles the

in the caste) company at a funeral
dinner
Drinking of Sura Apatikara(Rendering a man Forget the vedas

unworthy of receiving gifts)
Stealing Brahman’s Gold Malvaka(Causing Impurities)
Violation of Guru’s Bed
Association with any of

the Four
Gautama enumerates two types of criminals- Anupatakasanalogously

called the Mahapatakasand the Upapatakas. Manu declared five
Mahapatakas, namely, the killing of a Brahmana, the drinking of the
Sura, the stealing of Brahman’s gold, the violation of guru’s bed and
lastly the association with these four sinners. Anupatakas also on
account of their gravity should be regarded as analogous. The
analogous crimes are Samkarikara(causing admixture in the caste),
10 DamayantiDoongaji, Crime and Punishment in Ancient Hindu Society, Ajanta

Publications, New Delhi, (1986), p. 5.
11 (1935) I 62 J.A. 139, 143 I.

Apatikara (rendering a man unworthy of receiving gifts) and Malvaka
(causing impurities). The minor offences are committed by
Upapatakas which include a man who defiles the company at a
funeral dinner, forgets the Vedas etc 12.
It is also interesting to mention that there was a belief in the ancient

society that for every sin, great or small, there must be some
expiation otherwise none can get rid of the sufferings in the next
world. Hence, sinful men suffer deformity of appearance or have
some visible marks to indicate that they have committed sins either
in this life or earlier life. Prayascitta or expiation is the oldest method
of corrective measures for criminals. According to Gautama, man in
this world is indeed polluted by vile acts, such as sacrificing by men
unworthy to offer a sacrifice, eating prohibited food, speaking what
ought not to be spoken, neglecting to perform the prescribed duties
and delightfulness in doing what is forbidden.
2.2.1.2 Penal Policy in Ancient Hindu Period
The original conception of crimes in Hindu law has begun with the
violation of religious and social rules followed by elaborate
enjoinment of prayaschitta. While in the law of many ancient and
medieval states, a distinction was drawn between the noble and
common, here in India this distinction took a different shape, with
respect to that of the caste. A man accusing a Brahmin of a crime
was deemed to have committed a similar crime himself and in case of
the Brahmin’s innocence, his guilt was regarded as doubly sinful. A
man who assaulted a Brahmin with hands or weapon was said to be
banished from heaven for one thousand years; and if blood falls from
the body of a Brahmin, he will lose heaven for an uncertain number
12 Supra Note 3, pp. 19-20.

of years. 13 A Brahmin who was not otherwise permitted to use
weapons and arms could do so when his life is threatened, in the
exercise of his right to private defense. If a man received or retained
the stolen property, he was to be treated as a thief. A woman who
committed adultery with a man of lower caste was caused to be killed
by dogs. The adulterer also was to be killed. If the King did not strike
or punish the guilty person, the guilt fell upon him. It is quite clear
from above, that the earliest conception of criminal justice
administration was blend of the religion and law. 14
Whenever a sin was committed, the most viable punishment was to

outcaste the sinner. Other than this, the punishment imposed in
ancient India was severe or lenient according to the gravity of the
offence or in view of other considerations. The most common
punishment was of course fine and next was capital punishment and
mutilation, because the society believed in the eradication of the evil
doers rather than the rehabilitation and reformation. The
imprisonment and fetters were rarely prescribed. Beating or
whipping was recommended for light offences or for those committed
by infants, aged persons etc. Public disgrace including branding is
another kind of punishment. Censure, mild or strong was applied in
comparatively light offences or in the case of young and first
offenders. Banishment was also recommended in serious offence
committed by the Brahman.
13 R. Dasgupta, Crime and Punishment in Ancient India, Bhartiya Publishing

House, New Delhi, (1973), p. 36.
14 U. C. Sarkar, Epochs in Hindu Legal History,Vishveshvaranand Vedic
Research Institute,Hoshiarpur, (1958), pp. 55-63.

Table: Brief Summary of Punishment and Sentencing Policy in Ancient India
Sources Main Punishment Basis of Sentencing

Offences
Dharamshastras *Violation of • Outcaste 1. Distinction with respect
Religious and • Ordeals to caste
Social Rules • Public Disgrace 2. Severe Punishment for
*Offences • Beating/Whipping violation of faith and
against the • Fine trust of the King and
King • Imprisonment less for misdemeanors
• Censure for Young or
First time Offenders
• Capital Punishment
• Mutilation
• Banishment/Exile
Arthshastra *Robbery/Theft • Capital Punishment 1. Distinction with respect
*Defamation • Corporal Punishment to that of caste
*Assault • Fine 2. Gravity of Offences
*Gambling
*Betting
*Miscellaneous
Manusmriti *Offences by • Death 1. Distinction with respect
lower caste • Mutilation to that of caste.
against the • Fines 2. Factors like, time and
upper caste place of the offence,
*Murder of a the strength and
Brahmana knowledge of the
offender, ability of the
criminal to suffer,
motive and nature of
the crime
Yajnavalkya *Abuse • Censure 1. Gravity of the Offence
*Theft • Rebuke 2. Nature, time, place of
*Adultery • Pecuniary the offence
*Assault on Punishment 3. Strength, age, Volition
Plants and • Corporeal and wealth of the
Animals etc. Punishment culprit
The main important works which have influenced the punishment

and sentencing policy in ancient India are Dharamashastras,
Arthashastra, the Manusmriti and YajnavalkyaSmriti. Though there
are few more which are formulated on the basic principles laid down
in above mentioned texts.
Dharamshastras: In Dharamshastras it is interesting to observe that

for them the crime principally meant an evil act done with a certain
degree of violent attitude. The criminal was said to be a person who

being unaffected by the physical or spiritual effects of his acts was
promoted by the absolute spirit of violence and openly engaged
himself in causing, suffering to others by his acts such as theft, hurt,
adultery, etc. For them the offences against the King were the most
serious particularly joining hands with the enemy, and they also
punished severely those who violated the faith and trust. Such
offences could be compared with treason and felony. All the offences
were punishable with fine or imprisonment. Punishments varied
according to whether an offence was against the King or the ruling
authority, or against a person to whom the offender owed a duty or
allegiance or amounted to only misdemeanors. 15
Kautilya’sArthshastra: After the earliest Dharamshastras, the text

that must be paid attention to is that of Arthshastra of Kautilya.
Kautilya or Chanakya was the famous minister of Chandragupta
Maurya and is believed to be responsible for the over-throw of the
Nanda Kings. In Arthshastra, Kautilya devoted two chapters to law.
One is known as the chapter on Dharamsthiya (Civil law) and the
other is known as the chapter on Kantaksodhanam (Criminal law).
Arthshastra deal with crime such as robbery, defamation, assault,

gambling, betting and other miscellaneous offences relating to crime.
Robbery or Sahasahas been defined by Kautilya as sudden and
15 Shiv Kumar Dogra, Criminal Justice Administration in India, Deep and Deep
Publications, New Delhi, (2009), p. 17. Whenever a sin was committed, the
most viable punishment was to outcaste the sinner. Other than this, the
punishment imposed in ancient India was severe or lenient according to the
gravity of the offence or in view of other considerations. The most common
punishment was of course fine and next was capital punishment and
mutilation, because the society believed in the eradication of the evil doers
rather than the rehabilitation and reformation. The imprisonment and
fetters were rarely prescribed. Beating or whipping was recommended for
light offences or for those committed by infants, aged persons etc. Public
disgrace including branding is another kind of punishment. Censure, mild
or strong was applied in comparatively light offences or in the case of young
and first offenders. Banishment was also recommended in serious offence
committed by the Brahman.

direct seizure of person or property and as such it has got to be
contrasted with theft which implies only fraudulent or indirect
seizure. Kautilya again conceives a criminal element in robbery when
he says that the fine or punishment shall be in accordance with the
gravity of crime rather than to the value of the article involved. For
this purpose, Kautilya describes the different kinds of fine- first
amercement, middle most amercement and the highest amercement.
For abetment of robbery, an abettor has to be fined twice or four
times accordingly as he causes another man to commit the robbery
and if they are robbers on highway, who rush upon travelers,
restrain, attack, threaten to kill and actually kill them, and shall be
hanged. In case of defamation, Kautilya includes a false charge,
contemptuous talk and intimidation. If a man, capable of doing harm
to another, out of enmity, intimidates him, he shall be compelled to
furnish lifelong security and safety to the person intimidated.
Defamation of one’s own nation or village was to be punished with
the first amercement, that of one’s caste or guild with the middle
most and that of Gods and temples with the highest amercement.
The crime of assault was committed by touching, striking and
hurting. Rank also played an important part in determining the
nature of punishment for assault. 16
Section 86 of the eleventh chapter of Arthshastra provides the law of

capital punishment simple or with torture against the criminals. The
technical sense of torture meant only corporal punishment inflicted
on the guilty and not torture inflicted for getting a confession from a
suspect. Corporal punishment includes imprisonment, banishment,
mutilation and death. 17 There were also different forms of death:
16 V. K. Gupta, Kautilyan Jurisprudence, B. D. Gupta, Delhi, (1987), p. 33.

17 K. P. Jayswal, Manu and Yajnavalkya, Butterworths, Calcutta, (1930), pp.
86-87.

death with torture for murder in a quarrel; death by impaling for
theft of royal animals; death by burning hands and skin for treason;
death by drowning for breaching dams or reservoirs, for poisoning or
for women who administered poison; death by tearing off the limbs of
criminals, for women who set fire to houses. Arthshastra
recommends: cutting off the right hand for pick pocketing or theft;
cutting off the nose for theft; cutting off one hand for false dice
player; cutting off the nose and ears for abetting in theft and
adultery; chopping off one hand and leg for kicking preceptors and
using royal coaches; blinding by poisonous ointments for Shudras
pretending to be Brahmins or for slandering the King; chopping off
one hand or foot for freeing culprits, forgery or sale of human flesh;
cutting off the tongue for slandering preceptors, parents and the
King and for defiling a Brahmin’s kitchen. Kautilyaprescribed death
for selling human flesh, stealing images of goods or animals, for
abducting human being and for wrongfully seizing fields, houses,
gold, gold coins, jewels and crops. Death with or without torture is
provided for murdering a man in quarrel. But when the wounded
man dies a fortnight or a month after the quarrel, the highest fine
and expenses of medical treatment is prescribed 18.
The criminal justice administration during the Kautilya’s time had

reached a comparatively higher stage of development. The numbers
of offences dealt with are large and indicate an advanced stage of
society. Punishments prescribed to be given to the criminals, though
often brutal, reveal the great anxiety of the law giver to suppress
18 Retrieved from
<http://travelerreport.wordpress.com/2012/09/26/punishments-torture-
ancient-india/> last visited on January 9, 2014 at 15:37 IST.

crimes by making them correspond as far as possible with the gravity
of the offence. 19
Manusmriti: Smritis formed an important part as a source of

knowledge of law in ancient India. Of these Smritis,Manusmritiis the
comprehensive treatise on the conduct of Hindu society, Hindu ways
of life and Hindu polity. According to Manusmritilaw owes its
existence to god. The King is simply to execute that law and he
himself is bound by it and if he goes against the law or becomes
Adharmik he should be disobeyed. Puranas are full of instances
where the Kings were dethroned and beheaded when they went
against the established principles of law. ‘A King who punishes those
who do not deserve it and not punish those who deserve it, brings
great infamy on himself and sink into hell.
Manu also advocates different degrees of punishment beginning from

simple admonition and intermediate with harsh order and fine. In
awarding punishment, Manu says the time and place of the offence,
the strength and knowledge of the offender, ability of the criminal to
suffer, motive and the nature of the crime are factors to be
considered for inflicting the due measure of punishment. When a
Brahmin committed an offence, he was not to be sentenced to death
but his head was to be shaved. Brahmin was not to be inflicted to
sentence of death but for the murder of a Brahmana, Shudra was to
be branded on the forehead with the sign of private organs, for
drinking liquor, with the sign of wine cup and for theft of gold with
sign of the foot of a dog 20. Manu has selected ten (10) places on the
body where punishment should be inflicted in the case of non
19 Suresh Chandra Pant, Hindu Polity State and Government in Ancient India,
Prakashan Kendra, Lucknow, (1971), p. 282.
20 ShraddhakarSupakar, Law of Procedure and Justice in Ancient India, Deep
and Deep Publication,New Delhi, (1986), p. 76.

Brahmanas, but the Brahmanas were to be banished without
inflicting the least hurt. Manu says that the punishment must always
be just. 21
The severest punishment was reserved for the Shudras, especially

who defamed the Brahmins. A Shudra insulting a twice-born man
(Brahmin) with gross language shall have his tongue cut off, the
reason being that he is of low caste, if he mentioned the name of
twice born classes with contempt, an iron nail ten fingers long shall
be thrust red hot into his mouth and if he arrogantly teaches
Brahmin their duties, the King shall punish him by pouring hot oil
into his mouth and ears. As in defamation so also in assault, nearby
the whole of law is mainly determined by reference to the question of
caste. Manu also provides for criminal punishment in the shape of
fines or those who hurt trees, plants, animals and even inanimate
goods. Adultery was regarded as one of the most heinous offences for
which deterrent punishments were provided for, so that it may create
awe and fear in the minds of the people at large. Apart from actual
sexual intercourse, any act or action with immoral sexual desire was
deemed to be adultery. A Shudra, guilty of adultery with a woman of
any caste especially of the twice born class shall be sentenced to
capital punishment. A wife violating her duty towards her husband
was to be devoured by dogs in public place and male offender was to
be burnt on a red hot iron bed by putting logs under it. 22
Manusmritihave laid down that every human being was to suffer the
consequences of sins committed by him either during his life in this
world or after death in hell or the other world and again, owing to
21 Beni Prasad, Theory of Government in Ancient India, Allahabad Law Agency,

Allahabad, (1974), p. 89.
22 M. Rama Jois, Ancient Indian Law Eternal Values in Manu Smriti, Universal
Law Publishing, New Delhi,(2004), p. 86.

remnants of such evil deeds, to take a re-birth and suffer the
consequences of offences committed in the past life and so on. Great
importance was attached to confession and Manu prescribes half the
punishment in case of one who confessed.
YajnavalkyaSmriti: Yajnavalkya’s work is more systematic than

Manu. He has divided his work into three parts: Achara (conduct),
Vyavahara (law) and Prayaschitta (expiation). Yajnavalkyaspeaks of
four classes of punishment namely, censure, rebuke, pecuniary
punishment and corporeal punishment and says that these should
be used either separately or jointly according to the nature of the
crime. Of these mere censure was the lightest form of punishment
and rebuke came after it; pecuniary punishment included fine and
forfeiture of property and corporal punishment included
imprisonment, banishment, branding, cutting of offending limbs and
lastly death sentence. The measure of punishment depended on the
gravity of the offence. Thus, Yajnavalkya says that the King should
inflict punishment upon those who deserve the same after
ascertaining and taking note of the nature of the offence, time, and
the place of the offence and the strength, age, vocation, and wealth of
the culprit. Abuse, assault, theft and adultery were the different
types of crime, as counted by Yajnavalkya.
Abuse or defamation was to be adjudicated chiefly with reference to

the question of caste of the different parties. The maximum fine shall
be imposed for abusing a Brahmin. He also makes provision for
assault committed on plants and animals. The fines shall be doubled
when the injury is done to a tree in a sacrificial place, boundary or
temple. A Sahasa or a heinous offence is committed when a common
or another’s property is taken by force. For Sahasa, the fine shall be

double the value of the thing taken, but four times when the offence
is denied. 23
The Punishments in early societies were personally administered

and were retaliatory, vengeful and usually severe and swift. The
Hindu law gave ample power to the judge for imposing
punishment in his discretion. The punishments recommended by
the law givers are either maximum or minimum or a mere
standard which should be followed as a guide. The judge was to
take various things into account when he has to determine the
amount and nature of punishment, for example, the age of the
offender, his knowledge, caste, status, wealth, physical power,
mental condition, motive and nature of the offence, time and other
extenuating or aggravating circumstances. Measure of
punishment varies according to the gravity of the offence. If the
offence is not very serious, lighter punishment may be given while
if the offence be serious, the punishment must be severe too. A
woman killing her husband or child, burning a house or a village
should be killed by a bullock. 24
Gautama: Abuse and defamation constituted an important crime,

Gautama states that a Shudra, who intentionally insults by criminal
abuse or assault a member of the twice born caste, is to be deprived
of the limb with which he offends and as a punishment the Shudras
are sought to be excluded from learning the Vedas. If he listens to
recitations of the Vedas intentionally, his ears are to be filled with
molten tin or lac. If he dares to recite the Vedic texts his body is to be
split. If a Kshatriyas abuses a Brahmana he is to pay a fine of
hundred Karsapanas (Silver Coins), but if in case of a
23 P. N. Sen, General Principles of Hindu Jurisprudence, Allahabad Law

Agency, Allahabad, (1984), p. 343.
24 Id., p. 342.

Brahmanaabusing a Kshatriyas only a fifty, a Vaishya only twenty
five and nothing in the case of a Shudras. Apastamba mentioned that
if a Brahmin drinks sura, he can have no expiation except by death
caused by pouring hot Sura poured into his mouth. 25 The Gautama
recommended four factors to take into consideration for inflicting the
punishment against a crime, the status of the offender his bodily
strength, the nature of offence and whether it has been repeated.
Vasistha: According to Vasistha, the place and time of the

occurrence, the duties, age and learning’s of the offender and the
seat of injury should be properly considered by the judge, when
inflicting punishment.
Vishnu: As per Vishnu, the punishment should be proportionate to

the gravity of the offence and should also be dependent on the caste,
position and the age of the offender.
Brihaspati: Brihaspati enumerated the correlation between penalty

and justice. He says, ‘No sentence should be passed merely
according to the letter of law. If a decision is arrived at without
considering the circumstances of the case, violation of justice will be
the result. Thus, the traditional reaction which regard a criminal as
dangerous and for whom infliction of punishment is the only remedy
so that he is totally eliminated from normal society, no longer find
support in modern times. There are so many Smritis like Parasara,
Narada, Katyayanaetc which also described various punishment and
sentencing policies prevalent during the criminal justice
administration in ancient time. The views of these Smritis were less
or more dominated by the views of Manusmriti and
25 Retrieved from <http://drgokuleshsharma.com/pdf/CRIME%20IN%

20ANCIENT%20INDIA%20.pdf> last visited on January 9, 2014 at 15:50
IST.

YajnavalkyaSmriti. All these jurists exhibited a praiseworthy
analytical insight and the most perfect acumen of elaborating and
explaining the juristic principles and philosophy 26
Table: Specific Offences and Penal Policy in Ancient India
S. Offence Penalty/Liability Thinker

No.
1. Gambling Banishment Manu
No Penalty- Legal (Helps in generating Yajnavalkya
revenue)
Legal (Accrues State revenue) Narada
Legal (Allow King to a share of every State) Brihaspati
2. Adultery/ Rape Fine is imposed on Man Manu
Punishes all cases of sexual relationship
with an unmarried girl or a woman
irrespective of the ‘willingness.
Harsh punishment for forced Rape Yajnavalkya
Corporeal Punishment for Rape on a girl of
lower Varna
Capital Punishment for a Rape of a girl of
Higher Varna
It is not an offence for the man, if he has a
sexual relationship with a willing virgin
Small fine may be imposed for a forced
sexual act with a concubine or slaves.
In case of a Rape on an unwilling maiden of Narada
Kshatriya, Vaishya or Shudra Varna, the
punishment is the cutting of the two fingers
but if woman is molested, is a Brahmana,
then punishment is Death.
Provides three categories: Brihaspati
1. Forcible Enjoyment
2. Fraudulent Enjoyment
3. Adulterous Enjoyment
Punishment is similar as prescribed by
Manu
3. Murder Prescribes death sentence Manu
Also provides a right of self defense. He
states that if a man comes to attack with the
intention of kill, the attacker may be killed
without any hesitation even if he be a guru
or a Brahmana
Prescribed punishments, like death by Yajnavalkya
hanging , drowning of a woman who
poisons her husband
He refers to the killing of human beings, Vishnu
Animals (Both wild and domestic), feller of
trees and also the man who cuts the
creepers and shrubs etc.
26 Supra Note 3, pp. 18-19.

Killing of an assassin is no offence (he also
provides for categories of assassins).
Both Murder and suicide are serious Kautilya
Offences
Prescribed Death Sentence
Provides right of self defense
Prescribed Death Brihaspati
No Corporeal punishment for Brahmana
Death to be given after confiscation of
property
4. Theft Higher the Varna, greater the penalty Manu
No Corporeal Punishment to Brahmana
Manu refers to ‘vadha’ as the punishment of
a great store of grains, gold and silver
Nature of Punishment is dependant upon
the amount of precious metal stolen for eg:-
- 50 Palas- Fine
- 50-100 Palas- Corporeal
Punishment
- >100 Palas - Death
In case of theft by the King. The king must
fine himself seriously and throw away the
money in the water.
Includes all cases of pick pocketing and Yajnavalkya

purse cutting.
There will be fines on police, guards and
also the village headman if they fail to catch
thieves in their areas
He pays more attention to catching of
thieves than giving details of punishment
He mentions various ways in which Narada
confession can be extracted from thieves
and various ways in which torture was
inflicted.
If the real thief escapes and an innocent
man is punished the later is to be paid
double the amount after the thief is caught.
Narada has recommended lighter
punishment even for stealing of a man,
woman or a maid
Most Punishments are corporeal Vishnu
Rarer and greater the value of a thing

stolen, higher the punishment
Thus, for stealing animals like cow, horse,
etc. cutting of the hand or foot is prescribed
For stealing, gold or silver, cutting of both
hands is prescribed
He classifies thieves into two types- open Brihaspati
and concealed
Death penalty is prescribed for kidnapping
of a man/ woman it prescribes death.
If a cow is stolen the punishment is cutting
off nose and plunge into water with fetters

on his body
2.2.2 Islamic Period
The glorious Hindu period was subjected to discontinuation after the

attacks of the Muslims and the beginning was made by Mohammud-
bin-Qasim in 712 A.D. who came to India as invader and returned
thereafter. The real penetration into India was made by Qutub-
uddinAibek who, in reality established himself firmly in India after
waging series of wars and finally established his supremacy in the
whole of Northern India. The Muslims thereafter continued to rule
over India for centuries till the year 1857 when the last Mughal King
Bahadur Shah Zafar was dethroned by the Britishers and the English
established themselves as the next rulers of India. Mughal also
inflicted atrocities on the Sikh gurus for disobeying the orders of the
Mughal Sultanate, for instance; Guru Arjan Dev was tortured and
killed by the mughal rulers for refusing to make changes to the Guru
Granth Sahib. During the period when the Muslims ruled over India,
many significant changes were introduced by them in the Indian
legal system from time to time. The Islamic jurisprudence was
imported into India by Muslims with certain modifications to suit the
circumstances of the age and to satisfy the needs of the people of the
time. 27
The Islamic law is often viewed as relatively inflexible to changing

social conditions in a society and as far more inclusive of all aspects
of social and economic life of the individual. Islamic law is known as
Sharia (The path to follow) and it prescribes what should be done to
those who neglect their duties, abandon their faith, or break the law
of the community. However, different interpretations of Islamic law
27 Supra Note 15, pp. 29-30.

exist among different sects of Muslims in terms of when and how law
should be applied. 28
Some Muslim jurists contended that the solution to every

contemporary problem is found in the texts of Islamic Law. However,
it is important to note that the western notion of ‘hyperlexis’ (i.e. the
overextension of law in modern industrial society) also suggest that
legal attempts to regulate all aspects of social life are not exclusively
reserved to Islamic legal system. 29
2.2.2.1 Islamic Rule and Law
From the time of the conquest in India by the Muslims, the victors
imposed their own criminal law on those whom they conquered. The
primary basis of the Islamic criminal law was the Quran, which is
believed to be of divine origin. But the laws of Quran were found
inadequate as it was just few of the verses which contained
provisions dealing with matters of civil or criminal nature. 30
From the perspective of law and social control, Mohammad’s

settlement in medina is important because of its implications for the
subsequent development of a type of theocratic State. Specifically,
religious doctrines became code of conduct for its followers and the
expression of political and legal norms. As the Apostle who had
divine authority, political authority that resonated with the tribal
28 Bryant W. Seaman, “Islamic Law and Modern Government: Saudi Arabia

Supplements the Sharia to Regulate Development”, Columbia Journal of
Transnational Law, 1979, p. 417.
29 Terance D. Niethe, “Predicting Future Litigiousness’s”, Justice Quarterly,
1995, pp. 407-428.
30 R. K. Wilson, An Introduction to the Study of Anglo-Mohamedan Law,
Thacker, London, (1894), p. 16.

spokesman (Shaykh) who was now transferred under the Islamic
percepts to the prophet and his successor. 31
For the believers of Islam, the Sharia provides “the path to follow” for
a morally proper life and establishes the appropriate boundaries of
conduct and the procedural rules to determine when they are
violated and what should be done to the offender. The substantive
content of the Sharia are the legal norms that existed in the Quran,
the Sunna traditions of the earliest Muslims and customary
practices. These principles and ideas were developed into a
systematic and coherent legal system with evolving times. Variation
in schools of Islamic jurisprudence evolved from the work of early
jurists working in different regions of the expanding Muslim
empire. 32
It is also true that the prophet himself as a ruler exercised criminal

jurisdiction over his subjects and summarily sentenced the offenders
to temporal punishments. Yet the fact remains that there were only
two texts, which prescribed the punishment for treason and theft
respectively, but even of these the former is so worded as to
represent the prescribed punishment as merely a foretaste of hell
fire 33. So as to meet the demands of the large and civilized society,
the Sunna’s were introduced which were the rules of conduct
deduced from the oral percepts, actions and decisions of the Prophet.
These authentic traditions were taken to be the second authority of
Mohammedan law and were regarded as conclusive in cases which
31 Matthew Lippman, Sean Mc Conville and Mordechai Yerushalmi, Islamic

Criminal Law and Procedure: An Introduction, Praeger, New York, (1988),
p.9.
32 Abdullahi Ahmed An-naim, Towards an Islamic Reformation: Civil Liberties,
Human Rights and International Law, Syracuse University Press, Syracuse,
New York, (1990), pp. 29-30.
33 William Muir, Life of Mohammed, Smith Elder and Co., London, (1861), p.
281.

were not expressly determined by the Quran. The third source of
legal authority was received from the companions of the Prophet and
last authority was the ideas and opinions of the four great Muslim
jurists namely- Abu Hanifa, Nauman Bin-i-Thabit, Abu Abdullah Malik
bin-i- Ans, Abu Abdullah MuhammedIba-i-IdrisooShafi and Abu
Abdullah Ahmad Ibn-i-Hanbai, of all these the Hanafi Code was the
most prevalent in North India. 34
Crime under the Islamic law was considered to be an offence against

God or the ruler or a private citizen and as such it was a private
affair between the offender and his god, King or the injured person.
Most of the crimes, therefore, could be compounded. Crime was not
considered a social offence. Even the emperor did not have a general
power of pardon. It was interesting that murder was not considered
to be a crime against god or ruler. It was wrong done to the party and
as such it could be compounded by payment of blood money
(compensation). The crimes were of various types. Adultery,
fornication, apostasy, drinking wine, theft and highway robbery etc.
were the offences against the God. The cases of misrule or abuse of
power or moral turpitude and other offences falling within the orbit
of departmental duties were the offences against the ruler. Rebellions
against the sovereign also were such offences. Offences against
citizens consisted of doing a wrong to any citizen. They could both be
civil and criminal. There were minor offences, which were punished
at the discretion of the Qazis. These minor offences included
counterfeiting coins, arson, stealing shrouds from tombs, poisoning,
gambling and selling of wine and other intoxicants. 35
34 Fitzgerald, Mohammedan Law, Oxford University Press, London, (1931), pp.

3-8.
35 B. S. Jain, Administration of Justice in Seventeenth Century India,
Metropolitan Book Co., New Delhi, (1970), p. 57.

2.2.2.2 Punishments under Islamic Law: Purpose and Nature
Punishment in the pre-Islamic Arabia was based primarily on the

principle of retaliation (Lex Talions). Lacking a state or central
authority in nomadic and tribal life to regulate conflict and disputes,
punishment for wrongdoing was privately dispensed by the victim
and affiliates such as extended family or patron tribes. However,
because of the nature of communal life and strong kinship solidarity,
there was also collective responsibility for any serious misconduct
committed by a clan member. Similar to other legal traditions,
various purposes and philosophies underlie punishment within
Islamic law (Sharia). These include retribution, restorative justice,
rehabilitation or reformation and deterrence (both specific and
general). The multipurposes of Islamic criminal law are reflected in
the nature and magnitude of the different types of punishments for
crimes and forbidden behavior under the Quran. Islamic
Jurisprudence has four basic principles of punishment- Qisas or
retaliation. Diyut or the blood money. Hudhud or fixed Punishment
and Tazir and siyasa (Discretionary Punishment). 36
2.2.2.2.1 Qisas or Retaliation
The Quran uses the termQisas in the sense of ‘equality’. The

principles ofQisas were based on the theory of a life for a life and a
limb for a limb. Under this head the crimes are classified as Jinayat
which meant offences against the person and was restricted to willful
homicide, maiming and wounding. This involved lethal acts against
the person (Homicide) and non lethal offences against the body.
36 Supra Note 32, pp. 29-30.

These qisas offences are basically private wrongs against the
person. 37
The established mode of execution was by decapitation but later it

changed to hanging. Retaliation for offences against the person, not
affecting life, was restricted to wounding and maiming. The
established fine in cases of dismemberments and for wounds in the
head and face was 500 Dirhams. When the punishment was sought
out on the basis of retaliation, no discriminatory sentence could be
passed on the ground such as one party being a man and the other
the woman, the one being a slave and the other the free man, etc.
The essence of the principle of Qisasis human equality and security
of life in society. 38
Table: Qisas-Crime and Punishment
Offences Punishment
Intentional Killing (Murder) -Penalty for intentional killing is death
-Possible penalties other than death and
compensation are:
(a) Compensation of property
(b) Forfeiture of property
-No fixed Monetary amount is established for
compensation in the primary religious texts.
Accidental Killings (or Through Mistakes) -Punishments include:
(a) Fines
(b) Exclusion from Inheritance
(c) religious expiation or Pardons
Non Lethal Bodily Harm - Quran and Sunna provide religious
justification for seeking retaliatory
equivalence for acts involving
serious, permanent injury or
disfigurement to the victims.
- Sporadic accounts of limb
amputations, the surgical removal of
eyes and the severing of the other
body parts are considered as
retaliatory punishment for
comparable bodily injuries.
37 M. CherifBassioni, The Islamic Criminal Justice System, Oceana, New York,

(1982), p. 203.
38 Retrieved from < http://www.dawn.com/news/1053308/the-principle-of-
qisas> last visited on January 19, 2014 at 12:33 IST.

2.2.2.2.2 Diyut or Blood Money
Through Allah’s Divine revelations to Mohammad and the teachings

of the prophet, Islam provided an alternative to the punishment of
blood vengeance. This alternative was the acceptance of “blood
money”. The principles of how each clan or subdivision of the
community were responsible for the collection of its members, was
clearly laid down in the constitution of Medina, whereas
Mohammad’s doctrines about bodily resurrection and life after death
provided the spiritual basis for acceptance of blood money over blood
vengeance. 39
Basically, the punishment of Diyut was a corollary to the punishment

of Qisas. The punishment of Qisas in all cases of wilful homicide was
exchangeable with the Diyut, if the person having the right of
retaliation so wished. The fine for each kind of homicide causing
death of a man stated in terms of money seems to have been fixed;
and that for causing the death of a woman was limited to half the
amount. But there was no difference between the fine for the death of
a Muslim and that of a non Muslim. In cases of quasi-deliberate
homicide, erroneous homicide or involuntary homicide, in addition to
the payment of the fine, the offenders were liable to penalties of
expiation and exclusion from inheritance. 40
2.2.2.2.3 Hudhud (Hadd) or Specific Penalty
The obvious connection between the Islamic faith and Islamic Law is
found in the nature and punishment of hudhud offences. These
39 Montgomery W. Watt, Islamic Political Thought, Edinburgh University,

Edinburgh, (1968), p. 5.
40 Letters from Warren Hastings to the Government at Fort William, dated
July 1773. Quoted in Tapas Kumar Banerjee, Background to Indian
Criminal Law, R. Cambray and Co. Pvt, Ltd., Calcutta, (1990), pp.38-48.

offences are acts against God and their prosecution is initiated by
the State. Hadd penalties are decreed by God: they are absolute,
Universal, non-negotiable and unpardonable even under the
sentiments of mercy. Under Hadd the quantity and quality of
punishment was fixed for certain offences and this could not be
altered or modified. If offence was proved, the Qazi (the Muslim judge
who prescribed punishments as per the religious texts) had no other
alternative but to sentence the convict to the prescribed punishment.
The punishment ofHadd was extended to the crimes of adultery, of
illicit sexual intercourse (Zina) between married or unmarried
persons of false accusations, of drinking wine, of theft and of
highway robbery. 41
Table: Hudhud- Crimes and Punishment
Offences Mandatory Penalty

Apostasy Death by Beheading for Males and imprisonment until
repentance for females
Adultery and Fornication -Married person- Stoning to death
-Unmarried person- 100 lashes
Maliki school also imposes 1 year in prison or exile for
unmarried males in these acts
Defamation 80 lashes for a free person and 40 lashes for a slave
Theft - Amputation of hand at wrist by an authorized
st
doctor (1 Offence)
nd
- Amputation of second hand (2 Offence)
- Foot amputation at ankle or imprisonment till
rd
repentance (3 Offence)
Highway Robbery Homicide- Death by Beheading
No Homicide- Cross Limb Amputation
Imprisonment till repentance if caught before commission
of the offence
Rebellion Death if rebels fight and are captured.

Taazir (Discretionary Punishment) to be determined by
judges if they surrender or are arrested.
Use of Alcohol - 80 Lashes for a free man
- 40 lashes for slaves
41 Sam S. Souryal, Abdullah I. Alobied and Dennis W. Potts, “The Penalty of

Hand Amputation for Theft in Islamic Justice”, Journal of Criminal Justice,
1994, pp. 249-265.

2.2.2.2.4 Tazir and Siyasa
The remaining class of criminal acts under Islamic Criminal Law id

called Tazir. These crimes include all offences for which the sharia
has not proscribed a specific penalty. Under Tazir punishment could
be anything from imprisonment and banishment to public exposure.
Offences under this category are considered criminal acts because
they threaten at least one of the five essential guarantees of Islam-
the practice of religion the development of mind, the right to
procreation, the right to personal security and the possession of
property and wealth. 42
The general doctrine of discretionary punishment was clearly set

forth in the preamble to Regulation 53, 1803, as follows:
“The Muhammedan law vests in the sovereign and his

delegates the power of sentencing criminals to suffer
discretionary punishment in three cases, firstly, in the cases of
offences for which no specific penalty has been provided.
Secondly, when the proof of commission of such crimes may
not be such as the law requires for a judgment of specific
penalties. Thirdly, for heinous crimes in a high degree,
injurious to society which may require exemplary punishment
beyond the prescribed penalties; and with respect to crimes of
this description, an unlimited discretion, extending to capital
punishment is admitted to have been left by the Mohammadan
law to sovereign authority”.
There was no specification of this punishment either in quality or in

quantity. Sometimes even new punishments or new modes of
punishment could be devised by the judges and the Kings. The law of
punishment was not uniform for all, but had to be considered
according to the circumstances and the status of the accused. Men
42 Osman abd-el-Malak-al-Salch, “The Rights of the Individual to Personal

Security in Islam”. In M. CherifBassiouni (ed.), The Islamic Criminal Justice
System, Oceana, New York, (1982), p. 60.

of high rank, who were guilty of proved offences, were to be let off
with a warning. Merchants were sent to prison, the common people
were punished with strokes of the whip. The type and quantum of
punishment to be awarded was left completely at the discretion of
the judge. Some but not all, Islamic jurists contended that Tazir
Punishment is null and void when an offender repents and clearly
demonstrates the adherence to Islam.43
Although, there are various types of conduct that fall under the
general category of Tazir offences, there are several contexts in which
these offences are most prevalent. In particular, Tazir punishments
are usually imposed in the following four circumstances 44:
• Acts that do not meet the technical requirements of Hadd or

Qisas (e.g. theft’s of property of insufficient value to qualify as
a had offence, attempted but incomplete acts of adultery or
assault.
• Offences normally punished by Hadd but that in practice are

often punished by Taazir because of Extenuating
circumstances (e.g. theft amongst relatives) or weak
evidentiary proof (e.g. insufficient numbers of witnesses at
trial). In theory the Sharia judge must convict or acquit the
offender on the original had charge.
• Acts condemned in the Quran and Sunna or contrary to the

public welfare that are not subject to had or qisas
punishments. These offences include the consumption of pork;
usually breach of trust by a public official; false testimony;
bribery, contempt of court; and misleading the public through
fortune telling, astrology or palmistry.
• Acts that violate Islamic norms such as obscenity, provocative

dress or Wife’s refusal to obey her husband.
BASIC PRINCIPLES FOR PUNISHMENT AND SENTENCING LAW UNDER

ISLAMIC JURISPRUDENCE
43 Supra Note 37, p. 224.

44 Supra Note 31, pp. 52-53.

Qizas(Retaliation) Diyut(Blood Money) Hadd(Spacific Tazir and Siyasa
Penalty) (Discretionary and
Exemplary
Punishment)
Qizas means It meant the fine or Quantity and Quality Amount of

‘equality’ i.e. life for a compensation for of punishment is Punishment is the
life.. limb for a limb blood in cases of fixed and cannot be Discretion of the
homicide altered or modified Judge
Qizas are restricted to The punishment of Offences and Punishment can be

offences like willful Qizas in all cases of Punishments of any kind from
homicide, maiming willful homicide was Imprisonment to
and wounding exchangeable with Zina- 100 Stripes public exposure
the Diyut
Drinking Wine- 80
Stripes etc.
The established fine In case of quasi- -False Accusations Discretion is to be

in cases of deliberate homicide, (80 stripes) used:
dismemberments and erroneous homicide
st
for wounds in the or involuntary -Theft (1 No Specific penalty
head and face was homicide, Amputation of Right has been provided
nd
500 dirhams Hand, on 2
-Diyut Amputation of Left Heinous Crime to be
foot) punished beyond
-Loss of inheritance prescribed penalty
Mode of execution But there was no Highway Robbery When proof of

was by decapacitation difference between commission of an
–later was changed to the fine for death of (Imprisonment) offence is not such
hanging a muslim and that of as to attract
a non muslim prescribed
punishment
2.2.3 British Period
Administration of criminal justice so established by the Muslim

rulers was inherited by the administrators of the East India
Company. In 1623 a charter was issued by James I in order to
strengthen the hands of the company, in enforcing its laws and
punishing the persons, subject to a jury trial in case of capital
punishment. It could inflict punishment upon person’s disobeying its

law with a proviso that no punishment could be given which was
unduly harsh or contrary to laws, statutes or customs of England.
Warren Hastings inaugurates this period and generally held the view
that even the most injudicious or most fanciful customs which were
introduced either as a result of ignorance or superstition were very
difficult to substitute or replace. It soon appeared that some of the
provisions of the Islamic Law could not be allowed by the East India
Company on grounds of humanity and justice. 45
2.2.3.1 Period of Transformation:1772-1861
The nature of the earliest changes in penal practices in India with

Warren Hastings (1772-1834) and the emergence of unified penal
system for India are explored, with example of showing changes and
reforms between 1772 and 1834 in the areas of dacoity and robbery,
burglary, homicide etc. 46
• In 1772 the existing law for Dacoity was changed, and to

suppress the ruthless and wanton depredation of the robbers
it was provided that dacoits were to be executed in their
villages, the villagers were to be fined and the family of the
dacoits was to become the slaves of the State.
• In the period between 1772 and 1790 there were no other

changes in the penal law. But the arrival of Lord Cornwallis in
Bengal with his strong mind and superior authority bought a
change in the attitude of the government on the 3rd December
1790 by a regulation of the government of Bengal; the reforms
suggested by Cornwallis were adopted. The changes that took
place as a result of the regulation were, (a) intention of the
homicide was to be determined from general circumstances
and proper evidence and not from the nature of the instrument
employed (b) the discretion left to the next of kin of a murdered
45 Keith, Speeches and Documents on Indian Policy 1750-192, Oxford

University Press, London, (1922), p. 65. Also see, a letter of Warren
Hastings to Lord Mansfield dated March 21, 1774.
46 Retrieved from
<http://www.ncjrs.gov/App/publications/abstract.aspx?ID= 72500> last
visited on May 20, 2012 at 20:10 IST.

person to remit the penalty of death on the murderers was
taken away. The Cornwallis Code was passed in 1793 but as
regards the penal law not much additional change was made. 47
• In 1796 to maintain the just authority of the Zillah, city

magistrates, police officers and to prevent an evasion of their
processes by fight, concealment or otherwise and for
compelling the appearance of the persons charged with acts of
a criminal nature, it was provided that on conviction for
resistance to the processes of the criminal Courts the convict
was to be punished.
• In 1797 there was a change in the law of homicide. In this

year, the law officers were directed to give their fatwa’s in all
cases of willful murder on the assumption that Qisas was
claimed even when it was not applicable and the sentence
might extend up to death. In other kinds of homicide, if the
Islamic law prescribed the payment of the fine of blood, the
judges were directed to commute the punishment to
imprisonment which could extend to life imprisonment.
• The NizamatAdalat was also authorized to order transportation

beyond the seas of convicts for life or for seven years or
upwards (Regulation IV of 1797). During the same period,
Dharnaand perjury were penalized. In 1799, Treason was
penalized along with attempts to escape from the jail.
• The next reform in 1802 was in regard to infanticide, the

practice of destroying children by throwing them into water
was declared to be willful murder and on conviction was liable
to punishment to death (Preamble to Regulation VI of 1802). 48
During this period, the doctrine of discretionary punishment
left the entire discretion of inflicting punishment on the
sovereign or his delegate, the judge which in its practical
operation often led to disparity and lack of uniformity.
• In the year 1820 Begari was prohibited. Begaris a Persian word

meaning ‘one who is forced to work on labor without pay or
forced labor’.
• Similarly, Regulation XVII of 1829 made the practice of sale or

of burning or burying alive the widows of Hindus, illegal and
47 M. P. Jain, Outlines of Indian Legal History, Dhanwantra Medical and Law

Book House, New Delhi, (1952), p. 404.
48 Edward James Rapson, The Cambridge History of India, Cambridge
University Press, Cambridge, (1922), pp. 128-129.

this offence was to be considered as culpable homicide and to
be punished accordingly.
• Regulation III of 1832 marked the end of Islamic Penal law as a

general system of law applicable to all persons in the country.
Though this regulation exempted non Muslims from the
operation of Islamic Law, it did not make clear what law was to
be applied to them in its place.
• The Charter Act of 1833 gave Indian legislature a general and a

wide power of legislation. This Act also provided for the
appointment of a Law Commission in India. The charter played
an important role in shaping and molding the future of law
making in India. It was considered compulsory to prepare a
Code for Criminal Law, Evidence, Limitation and also Code to
regulate the Civil and Criminal procedures in the whole of
India by the same legislation. 49
• In 1834, corporal punishment was abolished altogether. It was

deduced from experiences that this punishment was not
efficacious for the prevention of crime either by reformation or
by example; on the contrary, it was always degrading to the
individuals and by affixing marks of infamy which were often
indelible ever after the convict was prevented from returning to
an honest way of life. Also this punishment was thought to be
brutal. Therefore, all existing regulation which authorized the
sentence of corporal punishment was rescinded and additional
imprisonment was substituted. 50
• Macaulay distinguished himself as erudite contributor to the

debates around the 1832 Reform Act and the final legislative
steps in the long abolitionist campaign against slavery
throughout British Empire. 51
• During this phase, Act XXX of 1836 was passed which

provided that whoever was proved to have belonged whether
before or after the passing of that Act, to any gang of thugs,
whether within or without the territories of the East India
49 V. D. Kulshreshta, Landmarks in Indian Legal and Constitutional History,

Eastern Book Company, Lucknow,(1995), p. 35.
50 George Campbell,Modern India: A Sketch of the Systemof Civil government,
to which is Prefixed, Some Account of the Natives and Native Institutions,
Nabu Press, South Carolina, Charleston, (2010), pp. 465-466.
51 Wing-Cheong Chan, Barry Wright and Stanley Yeo, Codification, Macaulay
and the Indian Penal Code, Asgate Publishing Ltd., London, (2011), p. 20.

Company was to be punished with imprisonment for life with
hard labor.
• Act V of 1843 declared the status of slavery to be non

recognizable in any civil or criminal Court within the territories
of the East India Company. In the same year corporal
punishment was reintroduced in certain cases of grave nature.
• By Act of1844 imprisonment for life was generally converted to

transportation for life. Steps against Mutinous practices were
also taken.
• In 1849, an Act was passed by which every person, maliciously

and advisedly endeavouring to seduce any person or persons
in the forces of the East India Company, from his or their
allegiance to her majesty or duty to the said company or
stirring up any person or persons in the forces to commit any
act of mutiny or making or endeavouring to make any
mutinous assembly, or to commit any traitorous or mutinous
practice whatsoever was to be transported for life or
imprisoned with or without hard labour for any term not longer
than seven years.
• In 1855, the punishment of penal servitude was introduced in

place of transportation 52 in the cases of Europeans and
Americans. This punishment consisted in keeping an offender
in confinement and condemning him to hard labor. 53
• The provision relating to the Act XXVI 1858 and Section 122 of
Indian Penal Code, 1860 had substantially been the same. The
period and horror of the mutiny of 1857 being over Act XXVI of
52 H. L. Adam, The Indian Criminal, John Milne, London, (1909), p. 46.

Bencoolen:Almost contemporaneously in 1784, the system of transportation
was started in India in a planned way. The first Indian penal settlement
was at Bencoolen in the South West of Sumatra, an island of the Malay
Archipelago. The main objective of starting this settlement was the
utilization of the labour of the convicts for the cultivation of various
products. Penang:In 1823, Bencoolen was transferred to the Dutch and the
convicts were transferred to the Island of Penang which had already been
made a second penal settlement. Andaman: In preparation of a place to
check the activities of Malay pirates and the massacre of shipwrecked crews
and to found a penal colony, Lord Cornwallis, in 1788, had sent Lieutenant
Colebroke and Lieutenant Blair to survey the islands and write a report as
to their suitability for colonization. As the result of their favourable report a
settlement was started by Lieutenant Blair in September, 1789 on Chatham
Island on the South East bay of the great Andaman, now called Port Blair,
but then called Port Cornwallis.
53 Act XXIV OF 1855, And Act XXXIV of 1856. Also see, Supra Note 30,p. 112.

1858 was enacted with a view to discouraging a recurrence.
Under this Act collecting men, arms, ammunition or otherwise
preparing to levy was against the State or instigating or aiding
in the commission of that offence was made liable to the
punishment of death or to the transportation for life or of
imprisonment with hard labor for any term not exceeding
fourteen years.
• Act XVII of 1860 was the last penal Act before the Penal Code
was passed. It repealed Act V of 1858 and directed the
executive government to declare a fixed date for the surrender
of the escaped offenders from jail. Those who surrendered by
that time were not to be prosecuted; but those who did not
were to be sentenced to transportation for life or for any
shorter period not being less than five years or to
imprisonment etc. 54
2.2.3.2 Enactment of Indian Penal Code
The Indian Penal Code, 1860 (IPC) which was largely the work of
Thomas Babington Macaulay was the first codification of criminal
law in British Empire and is the longest serving criminal code in the
common law world. It was formed by the ideas of Utilitarian
reformers, notably, Jeremy Bentham, who advocated a wide range of
Reforms to English criminal law. Macaulay’s efforts, drafted in 1837,
came closest to Bentham’s ambitious conception of comprehensive
codification- one that was designed to displace the common law
entirely and characterized by the principles of lucidity and
accessibility of provisions and consistency of expression and
appreciation. 55
Soon after its inception, the Indian Penal Code received high praise
for its clear articulation and thinking concerning criminal
54 Supra Note 40, pp. 125-135.

55 Supra Note 51, p. vii

responsibility. For example, the English jurist and codifier James
Stephen was led to proclaim that 56:
“The Indian Penal Code is to English criminal law what a

manufactured article ready for use is to the materials out of which it
is made, it is to the French Penal Code and, I may add, to the North
German Code of 1871, what a finished picture is to a sketch. It is far
simpler and much better expressed, than livingston’s code for
Louisiana, and its practical success has been complete”.
Lord Macaulay was appointed as the Law Member of the Council

under the Charter Act of 1833. He emphasized the urgency of
codification of Indian laws by arranging them in a systematically
written code. Section 53 of the Act made provisions for the
appointment of Law Commission in India for the purpose of
consolidation and codification of the Indian Laws. 57
2.2.3.3 Historical Context and Originating Principles
The Charter Act, 1833 reorganized British government in India by

creating a unified legislative body in the form of an appointed
Legislative council headed by the Governor General, which
centralized and coordinated civil and military authority and East
Indian Company commercial interests. 58
A Law commission was created under Macaulay’s direction shortly

after his arrival as the Council’s legal representative. Undeterred by
the complexities of India, Macaulay pursued an ambitious agenda to
modernize laws and the colonial governance of civil society. As the
system of administration of criminal justice was most unsatisfactory
and chaotic condition, the local government directed the commission
56 G.O. Trevelyan, The Life and Letters of Lord Macaulay, Longmans, Green
and Co., London, (1923), p. 303.
57 N. V. Paranjape, Indian Legal and Constitutional History, Central Law
Publications, Allahabad, (1996), p. 5.
58 Eric Stokes, The English Utilitarians and India, Clarendon Press, Oxford,
(1959), p. xii.

to take its first step to tackle this branch of law. The commission was
specially instructed to draft an Indian Penal Code, 1860. Though the
draft was submitted in 1837, it did not become a law till 1860. But
suggestions were taken from every possible arena including the
English Criminal law administered in the Supreme Courts of India
and the Regulations of the three Presidencies as well. And this fact
very well explains the importance of the history of the Regulations
and Acts. For example, when we find that the punishment of seven
and fourteen years imprisonment for certain offences was provided
for by the Indian Penal Code, 1860 and enquire why such
punishment had been provided and why this ratio of seven to
fourteen years had been fixed, we find the influence of the
Muhammedan Criminal law on the Indian Penal Code, 1860 although
the influence was indirect. We find that according to the
Muhammedan Criminal law mutilation was one of the prescribed
forms of punishment for some offences the loss of one limb and for
some the loss of two limbs had been, prescribed. Lord Cornwallis
with his humane spirit protested against such barbarous
punishment and changed the law. He substituted seven years
imprisonment for the loss of one limb, and fourteen years for the loss
of two. This reform continued throughout the period before the
Indian Penal Code came into existence and these provisions were
taken into the Penal Code unaltered. 59 The two guiding principles of
the British administrators in India, at the end of the eighteenth
century had been: (a) to change the laws of the country as little as
possible and (b) to apply the maxim of justice, equity and good
conscience where and when it was necessary to change such laws. 60
59 Supra Note 30, (1894), p. 30.

60 S. K. Puri, Indian Legal and Constitutional History, Allahabad Law Agency,

The question that was raised was as to how easily the code would be
accepted. We may deduce the answer by the fact that, ‘the influence
of religious beliefs in secular affairs was gradually supplanted during
the past century or second reason may be a rational element’. The
opinion of a great Muslim leader of the time, Sir Syed Ahmed Khan
was that “New and unforeseen legal rights have arisen which are not
provided for in the Mohammedan law. Hence, when the country is
changing at such a rate, it is absolutely necessary that new laws
should be brought forward to deal with the new circumstances. 61
Macaulay succinctly described the core objectives of his project in his

4th June 1835 minute to Council, paraphrased as follows: 62
• It should be more than a mere digest of existing laws, cover all

contingencies and ‘nothing that is not in the code ought to be
law’
• It should suppress crime with the least infliction of suffering

and allow for ascertain of the truth at the smallest possible
cost of time and money
• Its language should be clear, unequivocal and concise. Every

criminal act should be separately defined, its language followed
precisely in indictment and conduct found to fall clearly within
the definition.
• Uniformity was to be the chief end and special definitions,

procedures or other exceptions to account for different races or
sects should not be included without clear and strong reasons.
Thus, the Indian Penal Code, 1860 made an attempt to improve and
to save the criminal law of the country stagnation and decay. The
impact of western civilization in the shape of the officials of the East
India Company, on these ancient and divinely inspired systems of
61 Ahmed Khan, The Present State of Indian Politics, Pioneer Press, Allahabad,
(1888), p. 7

Hindu and Islamic Law, forced one of the most dramatic juridical
conflicts ever witnessed by the modern world. 63
2.3 DISPENSATION OF THE CRIMINAL JUSTICE SYSTEM
The entire criminal jurisprudence has been consolidated for the

purpose of upholding the essence of justice and formulating as well
as implementing plethora of criminal laws in consonance with the
changing social attitudes towards crime and criminal. Of all the
duties of a government, the duty of administering justice to the
people is perhaps the priority. To make the administration of
criminal justice successful, it is not enough to merely have a good set
of penal laws, but it is also essential to have an efficient judiciary, a
well organized system of courts presided over by a learned, honest
and efficient body of judges and magistrates.
2.3.1 Ancient Hindu Period
The American jurist, Lon L. Fuller famously developed a secular

natural law approach that regards law as having an ‘inner morality’.
By this he meant that a legal system has the specific purpose of
‘subjecting human conduct to the governance of rules’. It follows that
there is a necessary connection between law and morality 64. The
most striking feature of penal law of ancient India was that it made
the religion and morality as the basis to determine what was criminal
and what was not. The only concept that prevailed was that of
Dharma and Adharma. According to Manu, non injury, truth, non
63 W.A. Robson, Civilization and Growth of Law, Macmillan and Co., London,
(1935), p. 43.
64 Supra Note 5, pp. 69-70. Fuller explains eight forms of ‘legal excellence’,
towards which a system of rules may aspire, and which are embodied in the
inner morality of law. They are generality, promulgation, non retroactivity,
clarity, non contradiction, possibility of compliance, constancy, congruence
between declared rule and official action.

theft, purity and control on one’s senses constituted Dharma. Of
these, truth, purity and control on senses were considered personal
virtues and the non observance of the same constituted a sin. The
term ‘dharma’ is used in the second verse of first chapter of the Code
of Manu (Medhatithi- the first commentator of Manusmriti). Here, the
term dharma is used in the secular sense as to include the
varnasrama-dharma (VarnasramaDharma are special Dharma’s
which are to be practiced by particular castes and by men in
particular stages of life) and gunadharma i.e. the duty of the King
(state) to protect 65.
Customs and shastric injunctions played a vital role in the criminal

justice system in ancient India. Manu says that all the causes should
be decided by the shastras and the usages and that it is also the
duty of the King to enquire into the laws of caste, districts, guilds
and families. Moreover, a text is to be regarded as a Bidhi or
injunction when it enjoins men to do an act for which no worldly
reason can be given. Hence, law and custom, act and react upon
each other. It can be expressed as when from either cause or from
both causes, a uniform persistent usage has moulded the life and
regulated the dealings of a particular class of the community, it
hereby becomes a custom which is now a part of their personal law.
Any deviance by an individual from the prevalent custom may lead to
the commission of crime. 66
65 Dharma is a Sanskrit word and in most cases the meaning of Dharma is

religious ordinances or rites. In its prominent significance it stands for the
privileges, duties and obligations on man, his standard of conduct as a
member of the Aryan community. Retrieved from
<advlegith.blogspot.im/p/indian-legal-thought-dharma-aspects-of.html>
last visited on January 7, 2014 at 19:40 IST.

In examining the administration of justice in ancient India it is
necessary to keep constantly in mind the social structure of that era
which is enshrined in the rich philosophical traditions and literature,
of which legal culture is only a segment. History of criminal justice in
India can conveniently be studied under the three major periods i.e.
the ancient, medieval and modern period. The criminal justice
system in ancient India needs to be understood in both social and
spiritual context.
2.3.1.1 Ancient Penal Institutions
In the Rig Veda, the meeting place of the people or the assemblies of
warriors such as Sabha, Samiti, and Vidhata are mentioned. In these
assemblies, disputes private and public used to be decided, as they
exercised judicial powers. The tribal chief or the King as the case
may be was the supreme authority in such assemblies. Varuna, the
Vedic sage according to the Rig Veda was the deity who distinguished
between truth and falsehood and punished the guilty. The Atharva
Veda describes the Sabha and Samitias the two daughter of
Prajapati(the Creator). Sayana, the famous commentator of the
Vedas defines Sabha as an assembly of learned men and Samitias an
assembly of warriors, with the progress of Aryan civilization the
Sabha usually with the King at its head came to exercise its judicial
functions. 67
Gautama enumerates the essentials of a Court by stating that the

King should look to the cases in the Court with the help of (a) Purusa
(Bailiff), (b) the Sabhyas (Assessors), (c) the Ganaka (accountant) (d)
the clerk (e) gold (f) Fire (g) Water and (h) the Pradvivaka (Chief
Judges) and others. Apastamba also laid down certain minimum
67 S. Suparkar, Law, Procedure and Justice in Ancient India, Deep and Deep
Publications, New Delhi, (1986), p.10.

qualification for all persons (including arbitrators) who have the duty
of deciding disputes. The chief judge was expected to be well versed
in the Vedas and six Vedanganas, logic, history and the Puranas. He
must be thoroughly know the Dharamshastras and customs and
above all must be devoted to truth. As there was no formal
distinction between the civil and the criminal law, the same Court
administered civil and criminal justice. During the time of Vishnu
there was one Court, which is the King’s Court presided over either
by the King or by his deputy, who must be a learned Brahamana.
But with gradual increase in the population; one Court was deemed
to be inadequate. Accordingly subordinate Courts of inferior
jurisdiction were established in the time of Yajnavaklya. The regular
grades of Courts set up were- Courts presided over by the King
(Nripenadhikratah), assemblies of the people (Pugah), corporations
(Srenayah) and gatherings (Kulani).
Brihaspati mentioned four kinds of Courts. These are:
(a) Established in a fixed place such as town or a village

(Pratisthita)
(b) Mobile or Circuit Court, not fixed in one place (Apratisthita)
(c) The Court of a judge appointed by the King authorized to use

the royal seal (Mudrita)
(d) The Court in which the King presided (Sasita). The King’s
Court was the Supreme Court.
According to Kautilya, there should be a Court for every ten villages

called Sangrahana for every four hundred villages (a district) a
Dronamukha Court and for every eight hundred villages (a province)
Asthaniya Court. There were also Courts with extra ordinary

jurisdiction for e.g., a Court should be held in the forest; a Court
should held in the forest, for warriors in the camp and for merchants
in the caravan. 68
Kautilyaand Brihaspati said that these who perform austerities or

between those who are adopt in witchcraft and yoga should not be
decided by the King (unaided), but with the help of Vedas as
otherwise they may feel offended. Vijnaneshwarawhile commenting
upon the Yajnavaklya’s test explains that if a person is dissatisfied
with the decision of the Kula, he may appeal to Sreni, a person
dissatisfied with the decision of Sreni may appeal to Puga tribunal
and from Puga to the officer of the Court and from that he may
appeal to the King. Narada adds that a decision arrived at by the
King’s Court from which the King is absent is appealable to the King
himself. 69 Thus, the verdict of the Courts and institutions of ancient
India on the occasion of the violation of social laws, moral standard
and anti social activities were unanimously accepted by all.
2.3.1.2 Ancient Trial Procedure
The Hindu Mythology enumerated the concept of Dharamaraj who is

the deity appointed to administer justice. The Veda, the Smriti, the
approved usage, and what is agreeable to good conscience are
according to Manu the highest authority on this law, rather than the
direct evidence of Dharma. Law did not derive its sanction from any
temporal power; the sanction was contained in itself. Since law is the
King of Kings, far more powerful and rigid than anything else,
68 R. K. Mukherji, Local Government in Ancient India, Oxford University Press,

Oxford, (1920), pp. 34-35. In villages, the local village Councils or Kulani,
similar to modern panchayat, consisted of a board of five or more members
to dispense justice to villagers. This arrangement of judiciary suggests that
there were sufficient number of courts at different levels of administration
and for district (Janapadasandhishu) there were circuit courts.

nothing can be mightier than the law by whose aid, even the weak
may prevail over the strong 70.
Table: Some of the Provisions of Ancient Trial Procedure
Serial No. Source Provisions
1. Arthshastra (a) Status of the parties to litigation or the crime
committed was important consideration in
71
determining seriousness of offence .
(b) Procedure is provided for detection of criminals
72
through Secret agents , investigation through
73
interrogation etc.
(c) Gives detailed procedure for post mortem
examination of dead bodies
(d) Litigation be started by instituting a complaint
2. YajnavalkyaSmriti (a) Duty of the king to administer Justice by
hearing litigious dispute.
(b) He was directed to take assistance of
Councillors who were to act as assessors or
74
advisors to the king .
(c) He had original jurisdiction to hear cases
75
personally from litigants .

71 A Brahman killing a Shudra was awarded lighter punishment, than the
killing of a Brahman by a Shudra which constituted a very serious crime
thereby maKing them subject to a harsher punishment.
72 Employed spies (secret agents) appearing as holy men, were to entice
criminals by means of lures favorable to criminals that is robbers, by
means of charms inducing sleep, adulterers by love winning charms.Manu
enjoins let the King who sees everything through his spies, discover the two
sorts of thieves (taskaran) who deprive others of their property, both those
who show themselves openly and those who lie concealed. These two kinds
of thieves include many kinds of offenders e.g. cheats, burglars, robbers,
bribe takers, gamblers, palmists, physician unscrupulous artists, bullies
and so on. They are to be regarded as thorns by the side of the people and
as such they should be detected, may even be instigated to commit crimes
so that they may be brought under control. Kautiliya recommends that
spies and agents provocateur should be employed to detect various kinds of
wicked people, who should be incited to commit crimes and then banished.
73 Among the most important administration officers mentioned in the
Arthshastra are the Samahartr and the Samnidhartr. There were to be three
of them at each headquarter and they were to investigate thefts and
robberies with the help of Gopasand the Sthanikas. The Samahartr, under
whom all these officers work is therefore also something like a home
minister in a modern State
74 Their number should be three, five or seven; the reason for insisting upon
an odd number was for the fact that in case of difference of opinion the
guidance might be obtained from the opinion of the majority.
75 In small Kingdoms, there was no necessity of multiplicity of Court;
everybody could approach the King's Court for the redress of his
grievances. When the King personally attended the Court, he could decide
the cases personally with the help of the judicial officers, in exceptional

(d) Decision of Local Courts were subject to
76
appeal
(e) Insisted on detecting criminals by questioning
enemies.
(f) Competent surety should be taken from each
party for satisfaction of judgment if it goes
against him.
3. Manu Smriti (a) All causes should be decided by the Shastras
and the usages, and that it is also the duty of
the king enquire into the laws of castes,
districts, guilds and families
(b) Describes different classes of incompetent
77
witnesses
78
(c) Refers to Oaths and Ordeals
79
4. Narada (a) Custom is all powerful and overrides the law
The judicial procedure of the ancient times involved following

procedure:
• The statement of the Arthi/Purvapaksha (Plaintiff) who had

filed a complaint (Prathigna) stating precisely his case and
claim.
cases, the King could impart justice even without the help of the judge or
the assessors.
76 The decisions of these local Courts made with their delegated authority
were subject to appeal against the order, for a case having been decided by
a family, appeal laid to the corporation by a corporation to the community
and by a community to the officer appointed by the King or in the other
words to the Court properly constituted to try all the disputes. Naradaadds
that a decision arrived at by the Kings Court in absence of the King is
appealable to the King himself.
77 Manu describes different classes of incompetent witnesses and provides
that women should be witnesses for women only; but at the same time, he
provides that any person having personal knowledge of a particular fact
may give evidence in that respect specially on failure of competent
witnesses; but the evidence of women, infants and the aged must be
considered with great caution. In case of dispute of the witnesses, the King
or the judge shall accept the evidence of majority as true. If the conflicting
witnesses are equal in number, the witnesses of good qualities and
meritorious witnesses will be taken into consideration.
78 Manu has also referred to oaths and ordeals, but he has not described them
in details. He has also added one special mode of oath in giving evidence by
touching the heads of wives and children implying thereby that the false
evidence in these cases would result in the death or injury to the wives or
children.
79 There might be some customs only in the formative stage of growth and
there might be some other customs which were yet to originate.
Kulukbhatta and Vijnaneshwara elucidate that customs or Sadachara
should not be contrary to the Shrutis and the Smritis.

• The Prathyarthi/ Uttarapaksha (Defendant) was summoned
with a notice and was required to submit his written statement
in reply.
• Then the actual trial would begin wherein the judge would call
upon the parties to cite evidence/proof (Pramana) which were
of two kinds namely human (manvshik) and divine (daivik).
The human proof consisted of documentary evidence, oral
evidence and possessions. Divine proof was of five kinds ordeal
by balance, by fire, water, poison and by drinking water. The
divine proof was restored to only in the absence of human
proof.
When the evidence was over the judge would in consultations with
Sabhyas or jurors give his decision/judgment (nirnaya). A copy of
judgment was given to parties. The unsuccessful party could appeal
to the higher courts. 80
2.3.2 Islamic Period
After the disintegration of the Harsha empire a veil of obscurity

descends on the history of India which does not left till the Muslim
invasion. The country was divided once more into small kingdoms.
But this did not result in any great change in the judicial system
which had taken roots during the preceding thousands of years. The
standard and ideals of justice were maintained in each kingdom, in
spite of political divisions, the unity of civilizations was preserved.
The Muslim conquerors brought with them a new social system
which had profound effect on the judicial system. 81
2.3.2.1 Procedural Rules and Evidentiary Requirements
80 Retrieved from <https://ithihas.wordpress.com/2013/10/08/judicial-

administeration-in-ancient-india/> last visited on May 21, 2015 at 19:24
IST.
81 S. S. Dhavan, “The Indian Judicial System: A Historical Survey”, retrieved
from, <www.allahabadhighCourt.in/event/The
IndianJudicialSystem_SSDhavan.pdf> last visited on May 20, 2015 at
20:15 IST.

All legal systems have procedural rules and evidentiary requirements
that guide the application of the substantive law. Within most legal
traditions, a fundamental guiding principle is that law should be
applied uniformly to individuals regardless of religious or economic
status. There are, however, several notable exceptions to this
principle in Islamic Law. For Example, slaves and women in Islamic
societies are not granted full legal protection. Under this equality
principle and they have little or no legal standing as witnesses in
most cases. Similarly, Non Muslims are subject to the same criminal
law as Muslims (except for the Hadd penalties for drinking,
fornication. Apostasy and defamation because they are non
believers), but they are often only allowed to testify against other
non-Muslims 82.
Several procedural safeguards are designed to preserve the integrity

of the Islamic criminal process. First, the Qazi of Sharia Courts are
held to the highest standards of personal and judicial conduct.
Judges who wrongfully punish defendants are subject to the same
punishment they impose. Second, admissible evidence at trial is
limited to eye witnesses’ testimony, confessions and religious oaths.
Under Islamic law these types of testimonial evidence are assumed to
have high reliability. According to Islamic criminal procedure, the
accuser (plaintiff) is responsible for initiating court action. The
plaintiff is required to present a particular number of witnesses
(usually two) to support the accusations. These witnesses must be
Muslim males of good character whose righteousness and sense of
honour are beyond doubt. 83

83 Muhammad Iqbal Siddiqui, The Penal Law of Islam, Zazi, Lahore, (1979), p.
117.

An unequivocal form of evidence in Islamic Law involves the taking of
a holy oath. Oath taking under Sharia is a customary practice when
there is no confession and the accuser (plaintiff) is unable to provide
the required number of eyewitnesses for testimony. Under the
tradition, the qazi designates which party will first challenge the
other to swear under oath about the truth of their claims. Oath
taking is a serious matter for practicing Muslims because bearing
false witness under God’s oath will be severely punished on
judgment day. From the perspective of controlling misconduct
through punishment, the rigid procedural rules (e.g. victim initiated
prosecutions, severe penalties for false accusations) and strict
evidentiary requirements under Islamic Law would seem to diminish
the certainty of punishment. In fact, it is the lower certainty of
conviction that has led to some analyses to challenge the general
deterrent value of had penalty of amputation for theft. 84
However, the deterrent value of Islamic punishments for practicing

Muslims lies in both the certainty and severity of the particular
penalty in the living world and their eternal damnation by an
omniscient God.
2.3.2.2 Other Control Mechanism and Sanctioning Authority
Under the Muslim rule, the emperor directed his judicial

delegates how to proceed in holding a trial. In the Ain-i-Akbari we
get the following instructions of the judge : ‘the person must not
be content with witnesses and oath but hold diligent investigation
of the first importance for the inquirer is uninformed and the two
84 Delbert Rounds, International Criminal Justice: Issues in a Global

Perspective, Allyn and Baron, Boston, (2004), p. 93.

litigations are cognizant of the facts, without full inquiry and just
insight, it is difficult to acquire requisite certitude. From the
excessive depravity of human nature and its courteousness, no
dependence can be placed on a witness or his oath. By
impartiality and knowledge of character he should distinguish the
oppressed from the oppressor and boldly and equitably take
actions on his conclusions. He must begin with a thorough
interrogation and learn the circumstances of the case and should
keep in few all considerations in each particular case and take
the question in detail and in this manner set down separately the
evidence of each witness. 85
In capacity and vigour are not to be found united, he should

appoint two people, one to investigate and the other to carry out
his finding. The mode of administering justice during the Muslim
period was simple, speedy and without any elaborated procedure
of law. People could lodge their complaints without unnecessary
delay and avoid harassment by the staff of the court. In case of
unreasonable delay, even the judge and the Qasis had to
compensate the parties. The Qazis were definitely instructed to
use their reason and discretion in deciding disputes without
relying too rigidly on letters of the law. Sometimes extra ordinary
procedure would be adopted to find the truth. Litigation was
never encouraged. Emperor did not like to vest excessive powers
in the hands of qazis and magistrates for the fear of
corruption. 86
2.3.3 British Period
85 S. K. Puri, Indian Legal and Constitutional History, Allahabad Law Agency,

86 N.J. Coulson, A History of Islamic Law, Edinburgh University Press,
Edinburgh, (1997), p. 11.

The Laws of Procedure were more Specified by 1790. In 1790,
Cornwallis found the existing procedure very defective:
1. The NizamatAdalat did not try any case, but passed final
orders on some cases tried in the District Criminal Courts.
2. Cornwallis found that as these Courts were mostly situated at

a great distance from the place of residence of the Nawab-
Nazim, and as the English Magistrates upon the spot, were
prohibited from interfering with their proceedings, it was in the
power of the officers with little probability of detection, to frame
proceedings which when transmitted to the Nawab-Nazim
would procure the acquittal of the prisoner, or by protracting
his trial to oblige the prosecutors to abandon the prosecution,
or agree to a compromise. This was in itself very bad, but it
became worse when the judge were corrupt.
Regulation XXII of 1793 provided that any complaint to the Daroga

was to be written on the paper, with a stamp valued eight annas on
each roll. The main object of this provision was to check litigation
over petty matters. Regulation IX of 1793 allowed the prosecutor the
option of carrying on the prosecution in person or by a Vakeel duly
appointed except in cases in which the Mohammedan law required
the prosecutor to appear in person at the trial of the prisoner. The
judges were, however authorized to cause prosecutors to attend in
persons, in every case in which their viva- voce evidence was deemed
necessary, provided they were not Mohammedan or Hindu women of
a rank and situation in life, which, according to the customs and
prejudices of the country, would render it improper to compel them
to appear in a Court of justice. 87
In 1797, the Darogas of police were required, on hearing of a

person’s having died an unnatural death within their jurisdiction to
proceed to the spot to make personal inquiries into the
87 T. C. Das Gupta, Aspects of Bengali Society from Old Bengali literature,

University of Calcutta, Calcutta, (1935), pp. 1-3.

circumstances of the case and to reduce them to writing in the
presence of reliable people of the neighbouring villages.
Regulation IX of 1807 modified the police procedure on receipt of

complaint or information. A warrant to arrest the person accused
was to issue forthwith in cases of non-bailable offences, but, in other
kinds of cases, summon was to be issued ordinarily for appearance.
Under Regulation IX of 1807 also, prosecutors were allowed, in cases
where they were unable to attend the Court in person, to tender their
complaints through an authorized agent, corroborated by the
deposition of one or more persons present, or otherwise personally
informed of the truth of the complaint 88.
Regulation XX of 1817 prohibited the Darogas from taking cognizance

of any charge of adultery, fornication, calumny, abusive language,
slight trespass or inconsiderable assault. Persons bringing forward
complaints were to be referred to the Magistrate 89. In 1817 it was
decided that there was no objection against employing the
Superintendent of Police, or any other officer whom the Government
might appoint, not being the committing officer to conduct a
prosecution before the Sessions Court provided he was recognized as
the prosecutor, or agent of Government for conducting the
prosecution and not authorized to interfere in any other capacity in
the trial.
In 1820 the direction was issued that in a case of theft, if the injured
party declined to prosecute, the Magistrate might still if he thought
fit on a view of the nature of the case, direct a public prosecution.
88 Barlow Speede, Criminal Statistics of Bengal, Thacker, Kolkata, (1847), p.

xiii.
89 Supra Note 40, pp. 234-235.

In 1823, the NizamatAdalat laid down in a case of murder and
wounding that, if in the like cases there were no private prosecutor,
the Magistrate or the Sessions Judge should order the Government
pleader to prosecute. The same procedure was to be followed, if the
prosecutor were an infant.
In 1831 the Magistrate was authorized to direct any person,

whom he might think fit, to officiate as Government pleader of
conducting prosecutions on the part of the Government. In 1833,
it was declared that a Magistrate was perfectly justified in
exercising a discretion in appointing the Government Pleader to
prosecute in cases of murder, notwithstanding that there might
be near relations of the deceased competent to prosecute. Finally,
in 1861 the Government of India decided that the duty of
conducting criminal prosecutions in ordinary cases, in which
counsel were not employed by the parties concerned, was in
future to be undertaken by the Government Standing counsel. In
1807 it was made clear that appellants from the decisions of
Magistrate were at liberty to employ whom they pleased to
conduct their appeals. Five years later, however, by a
construction it was declared that parties committed for trial
before a sessions Court, and not exempted from personal
attendance under the provisions, Regulation VI of 1818 might be
allowed 90.
On March 20, 1847, the President in Council instructed the Indian

Law Commissioners to prepare a scheme of pleading and procedure
with forms of indictment adapted to the provision of the Penal Code.
Such a scheme, together with several forms, was prepared by
90 Judicial Letter to Bengal, November 9, 1814. Referred to in Supra Note 40,

p. 240.

Messrs. Cameron andEliott, and submitted with a report dated
February, 1, 1848. Their draft was examined and considered by a
new set of Commissioners appointed in 1852. These Commissioners
produced a draft code which was presented to Parliament in 1856
and was in the following year introduced into the Legislative Council
by Mr. (Lately Sir Barnes) Peacock. The draft of Code of Criminal
Procedure was ultimately passed by the Legislative Council as Act
XXV of 1861 and came into force on January, 1862 91.
Later, a systematic examination of the code was subsequently

undertaken by the Law Commission not only for giving concrete form
to the recommendations made in the fourteenth Report but also with
the object of attempting general revision. The commission in its
attempt of revision of the code enacted during the colonial regime
submitted a draft of the new Code of Criminal Procedure consisting of
about 484 sections for the consideration of the government. The
recommendations 92 were carefully examined and resultantly the
Code of Criminal Procedure came into force on April 1, 1974.
2.3.3.1 Court System with Advent of the British
The East India Company was incorporated in England in 1600 by a

charter of Queen Elizabeth which defined the constitution, powers
and privileges of the company. In the beginning, the Governor and 24

92 Broadly the main recommendations related to the simplification of law of
prosecution and separation between judiciary and executive wings. For this
purpose magistracy was to be divided into Judicial and Executive
magistrates. Summons on the witnesses be served by post. For the petty
offences the appearance of the offender in the Court was dispensed with
and he be allowed to plead guilty and pay the fine. The Judges should be
required to state reasons for awarding a particular punishment, in case of
capital offences. Anticipatory bail be obtained by a person from High Court
or Court of Sessions in certain cases. The Commission recommended that
the District Public prosecutors should be given greater powers and their
status should be raised.

Directors of the company formed the Court of Directors of the
Company which was to be elected every year by the General Court.
The General Court was empowered to make and issue orders for the
good governance of itself, its servants and for the betterment,
advancement and continuance of the trade. 93Charter of 1661
conferred wide powers on the company to administer justice in its
settlement, which has an important bearing on the evolution of the
judicial system in India. The President and the Council of the Factory
established at Surat could exercise the criminal jurisdiction and
inflicted penalties on the offenders. The death sentence could be
awarded in two conditions: If there was mutiny and other felonies
and when the trial was held with the help of jury consisting of Twelve
(12) or more Englishmen. 94 A Charter of 1683 authorized the
company to establish Admiralty Courts (also known as Maritime
Courts, exercising jurisdiction over all maritime contracts, torts,
injuries and offences) in order to check illegal traffic and punish
piracy which became so common 95.
In 1688, the Mayor’s Court was started at Madras. The Court sat
once only in a fortnight and tried criminal cases with the help of the
jury. Appeals from the Mayor’s Court were referred to the Admiralty
Court in which in a criminal case the offender was sentenced to lose
a limb. In Madras, the process of administration was very slow 96. In

94 J. K. Mittal, India Legal History, Central Law Agency, Allahabad, (1985), p.
11.
95 B. S. Sinha, Legal History of India, Central Law Agency, Allahabad,(1976),
p. 12.
96 Supra Note 22, p. 110. The bulk of the Court’s work was in deciding
criminal cases. Punishments imposed were severe and barbarous.
Punishments were prescribed for swearing the name of God in vain,

the year 1718, a new Court of judicature was established in Bombay.
This Court of Judicature consisted of nine judges including the Chief
Justice. Three English judges constituted the Quorum and the native
judges played only subsidiary role of acting as assessors. The bulk of
the Court’s work was in deciding criminal cases. The Charter of 1726
appointed governor and five senior members of the council as Justice
of Peace in each presidency for the administration of criminal
justice. 97 The concept of criminal justice during that time was that it
should serve as a deterrent to others so as to prevent commission of
offence in future. 98
The company never authorized to set up any Court till Mayor’s Court
came up in 1728. Accordingly one of the Council who occupied the
office of “Receive of Revenues” was not only collector but also a
Magistrate. In the capacity of a magistrate he held a Zamindari Court
which took into cognizance both civil and criminal jurisdiction. All
criminal cases were proceeded to punish and sentence immediately
after hearing except where the crime was murder, which required
lashes to be inflicted until death, in such cases he suspended
execution of the sentence until the facts and evidence were laid
before the President and his confirmation of the sentence was
obtained.
drunkenness, adultery, theft or robbery, housebreaKing, assault, cheating,

forgery etc.
97 Monica David, India Legal and Constitutional History, Allahabad Law
Agency, Allahabad, (1981),p. 9.

On August 15, 1772 a new plan was adopted which provided for a
Court of Criminal Judicature in each district presided over by a Qazi
and a Mufti, who were to be assessed by the two Maulavies to
expound the law and determine the degree of criminality. In 1773, a
Superior Court of Criminal Judicature, the SadrNizamatAdalat was
established at Calcutta. 99
The new plan of Cornwallis was adopted on December 3, 1790. Thus

from the administration standpoint we may say that the two main
features of the scheme of Cornwallis were:
1. The collectors were divested of judicial powers and
2. The administration of justice was the sole duty of the judges.
These provisions with minor modifications and amendments were

retained in Regulation IX of 1793. The alterations that were made
were as follows:
(1) Under the old scheme, collectors were to act as magistrates and they
had some judicial authority also. Their judicial and magisterial
powers were henceforth taken away and the judges of the Courts of
DiwaniAdalat were henceforth to hold the office of magistrates.
(2) In 1793, four Provincial Courts of Appeal were established with civil
appellate jurisdiction and their functions were executed by the same
persons as were the judges of the Courts of circuit.
99 Wahid Husain, Administration of Justice during the Muslim Rule in

India,Idarah-I-Adabyat-Delhi, Delhi, (1977), pp. 166-167.

After the conquest of Bengal by the British the process of
replacement of Mughal system of justice by the British began. But it
took a long time. In fact the SadrDiwaniAdalat continued to function
till it was replaced by the High Court.
Act VIII of 1842 gave the designation of Sadr Courts to the Sadr and
NizamatAdalats. In 1833, Macaulay advocated a uniform system of
Courts and of law but it could not be done immediately more
important matters like Succession Act were to receive attention first.
By the year 1861, the uniformity in the Substantive and the
procedural law of the country was achieved with the passing of the
Indian Penal Code, 1860 and the Indian Criminal Procedure Code,
1973. So now to end the Dual System of Courts, the High Court Act,
1861 was passed by which the Supreme Court of Calcutta and the
SadrAdalat were amalgamated into one. The High Court established
under this act started functioning in 1862. The fact is that the
system which was introduced in Bengal in 1862 prevails even now
without and substantial change having made. That it should have
stood the test of time for a century bears testimony to his suitability
and worth. Over a period of eighty years two separate and parallel
systems of Courts continued in presidency towns andMoffusil area.
There were the Royal Courts or Crown’s Courts and the Adalats of
the company. The sources of the power and authority of these Courts
were different. Their jurisdictions were vague and ill defined. This
confusion brought about several conflicts of the Common Law Courts
and the Chancery Courts in England during the 17th century. The
clash and conflicts between the two systems gradually decreased
with the direct usurption of power by the crown in 1858. It made
imperative on the crown of England to give good government to the

Indians. Government of India Act, 1915, declared High Courts to be
the Court of Record. Under the Government of India Act, 1935,
Federal Court was created to decide future disputes between the
units. The seat of Privy Council was outside India. It was the highest
Court of appeal for Indians and played an important role in the
administration of justice of this country.
2.3.3.2 The Present Judicial System
I shall now give a very brief description of our judicial system in the
present times. The Supreme Court of India is the Apex Court in
India. Each State has its own judiciary, which administers both
union and state laws. As like during the Mauryan Empire each
district in the state has its hierarchy of judicial officers-Munsif, Civil
Judge, Civil and Session Judge with the district judge as its head. At
the apex of the state judiciary is the high Court. It is a Court of
Record and not subject to the superintendence of any Court or
authority, though appeals from its decisions may lie to the Supreme
Court. It consist of a Chief Justice and as many judges as the
President of India may sanction.
After the attainment of freedom the Indian judiciary has maintained

the ancient Indian tradition of judicial independence and integrity.
The Supreme Court has set the place and its record of independence.
The High Court too on the whole has maintained a high degree of
independence and cases of judges carrying favour are very rare. The
highest praise must go to our subordinate judiciary-the Munsifs,
Civil Judges and District Judges who have dispensed impartial
justice between citizens of different communities and caste. Indian
judges have lived up to the injunction of Brihaspati that a judge
should decide cases without any motive of personal gain or prejudice

or bias and his decisions should be in accordance with the law
prescribed by the text. 100
Table: Brief Overview of the Evolution of Courts for

Administration of Criminal Justice
Serial No. Period Courts Established

1. Mughal Period Emperor
th
(16 Century) Chief Qazi
Local Qazi
2. Sultanate of Delhi Sultan/ Emperor
(between 1206-1526) Chief Sadar/Chief Qazi
Kotwal/Faujdar/Qazi
(Provincial Courts)
Dehat Courts/Village
Panchayats
3. 1600 General Court
Court of Directors of the
Company
4. 1661 President and
Council of the Factory (Surat)
5. 1683 Admirality Courts (to check
Illegal Traffic in Drugs and
Humans)
6. 1688 High Court of Madras
Court of Admirality
Mayor’s Court
Choultry Court
7. 1718 Court of Judicature at Bombay
8. 1726 Justice of Peace in each
Presidency
9. 1728 Office of Receive of Revenues
10. 1772 SadrNizamatAdalat
Court of Criminal Judicature
11. 1793 High Court (replaced
SadrDiwaniAdalat)
Court of DiwaniAdalat
12. 1833 Sadar and NizamatAdalats
13. 1861 High Court
(amalgamated Supreme Court
at Calcutta and SadrAdalat)
14. 1915 High Court (declared as Court
of Records)
15. 1937 Privy Council
Federal Court
16. Presently Supreme Court
100 S. S. Dhavan, “The Indian Judicial System: A Historical Survey”, retrieved

from, <www.allahabadhighCourt.in/event/The
IndianJudicialSystem_SSDhavan.pdf> last visited on May 20, 2015 at
20:15 IST.

High Court
Subordinate Courts
2.4 CONCLUSION
The chapter on Historical perspective holds relevance as the

Historical research is a very effective tool in determining how the law
and rules evolved during its life, and how these events made an
impact of what the said scenario is at present. By understanding the
facts and norms of the past, the researcher gets to understand the
drawbacks which were prevalent and how sound reasons or
decisions can be given in future in regard to formulation of the
policies.
The study of the abovementioned rules and norms show that the
ancient smritisand judicial system was complete in itself. This
system, although discriminatory provided information about every
kind of crime and punishment. The researcher may conclude that
the ancient legal system in India is inseparable from religion. King
was the administrator as well as judge whereas the Brahmins were
advisors. Punishments included verbal censure, fines, physical
torture, flogging/whipping, amputation of limbs, death sentence. The
object was to prevent the offender from repeating the offence and
also deterring others. Equality before law was not the norm. This
would depend on caste, qualification and other factors. Some forms
of punishment would be considered barbaric these days.
With the development of the society the criminal laws, like other laws
had undergone tremendous change. The concept of justice
underwent a transformation witnessing private vengeance mutating
into public wrong. The King was looked upon social and moral order
for the purpose of danda i.e. the punishment. In some ancient
societies the natural elements of ordeals (fire, water, wind etc.) were

considered as gods and as such were approached for criminal
justice. This system underwent a change after the Muslim invasions.
They imposed their own laws on a large part of this country. During
this period criminal justice was administered according to the
Mohammedan Law. The Mohammedan criminal law was based on
the Quran, a holy book of Muslims. The provisions of Quran were
found inadequate to meet the requirements of a large community.
The western colonialism overpowered the whole territory and come to

influence all the aspects of social life of Indians. The English, when
they took over administration of Bengal, Bihar and Orissa, did not
disturb for sometime the Mohammedan law of crime which was well
established but in defective form when the East India Company came
to India there was influence of Mohammedan law but later on the
English government modified and reshaped the criminal laws in
India for the good and welfare of the society. Some positive steps
were taken to remove the defects in the criminal law. The charter of
1833 was the first step in this regard which ultimately resulted in
the unification and codification of criminal law of India.
The passing of Indian Penal Code, 1860 and Criminal Procedure Code,
1973 based on English law, superseded to a great extent by the
British regulations. They made extensive use of the principle of
equity, justice and good conscience for this purpose. The
punishment and sentencing policy from scattered mentions was now
being confined and reshaped to make it fit into the codified laws. The
subsequent chapters will thus analyze whether the codified laws
were completely successful in providing punishment and sentencing
guidelines.

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║ChapterII║

Punishment and Sentencing

Punishment and Sentencing Policy –

This is why God honours the sword so highly that he says

1 Martin Luther, “Whether Soldiers, too, can be Saved” (1526). Translated by

| Punishment and Sentencing Policy – Historical Perspective | 17|

Although, Thomas Hobbes is usually remembered for his principle

| Punishment and Sentencing Policy – Historical Perspective | 17|

2.2 PUNISHMENT IN ANCIENT PERIOD

| Punishment and Sentencing Policy – Historical Perspective | 17|

It was held in the case of V.D. Dhanwateyv. Commissioner of Income

2.2.1 Hindu Period

6 George B. Vold, Theoretical Criminology, Oxford University Press, Oxford,

| Punishment and Sentencing Policy – Historical Perspective | 17|

The Dharamasutras are the first four texts of the Dharamashastras

| Punishment and Sentencing Policy – Historical Perspective | 17|

2.2.1.1The Basis of Classification of Criminals

Criminals in ancient India were classified according to the type and

MAHAPATAKAS ANUPATAKAS UPAPATAKAS

Killing of a Brahmana Samkarikara (causing admixture Man who defiles the

Drinking of Sura Apatikara(Rendering a man Forget the vedas

Stealing Brahman’s Gold Malvaka(Causing Impurities)

Violation of Guru’s Bed

Association with any of

Gautama enumerates two types of criminals- Anupatakasanalogously

10 DamayantiDoongaji, Crime and Punishment in Ancient Hindu Society, Ajanta

| Punishment and Sentencing Policy – Historical Perspective | 17|

It is also interesting to mention that there was a belief in the ancient

2.2.1.2 Penal Policy in Ancient Hindu Period

12 Supra Note 3, pp. 19-20.

| Punishment and Sentencing Policy – Historical Perspective | 17|

Whenever a sin was committed, the most viable punishment was to

13 R. Dasgupta, Crime and Punishment in Ancient India, Bhartiya Publishing

| Punishment and Sentencing Policy – Historical Perspective | 17|

Sources Main Punishment Basis of Sentencing

The main important works which have influenced the punishment

Dharamshastras: In Dharamshastras it is interesting to observe that

| Punishment and Sentencing Policy – Historical Perspective | 17|

Kautilya’sArthshastra: After the earliest Dharamshastras, the text

Arthshastra deal with crime such as robbery, defamation, assault,

| Punishment and Sentencing Policy – Historical Perspective | 17|

Section 86 of the eleventh chapter of Arthshastra provides the law of

16 V. K. Gupta, Kautilyan Jurisprudence, B. D. Gupta, Delhi, (1987), p. 33.

| Punishment and Sentencing Policy – Historical Perspective | 17|

The criminal justice administration during the Kautilya’s time had

| Punishment and Sentencing Policy – Historical Perspective | 17|

Manusmriti: Smritis formed an important part as a source of

Manu also advocates different degrees of punishment beginning from

| Punishment and Sentencing Policy – Historical Perspective | 17|

The severest punishment was reserved for the Shudras, especially

21 Beni Prasad, Theory of Government in Ancient India, Allahabad Law Agency,

| Punishment and Sentencing Policy – Historical Perspective | 17|

YajnavalkyaSmriti: Yajnavalkya’s work is more systematic than

Abuse or defamation was to be adjudicated chiefly with reference to

| Punishment and Sentencing Policy – Historical Perspective | 17|

The Punishments in early societies were personally administered

Gautama: Abuse and defamation constituted an important crime,

23 P. N. Sen, General Principles of Hindu Jurisprudence, Allahabad Law

| Punishment and Sentencing Policy – Historical Perspective | 17|

Vasistha: According to Vasistha, the place and time of the

Vishnu: As per Vishnu, the punishment should be proportionate to

Brihaspati: Brihaspati enumerated the correlation between penalty