Ideas of justice in ancient India

UPINDER SINGH

back to issue

MODERN democracies equate justice with freedom and the equality of each citizen before the law. In ancient Indian texts, justice was premised on the idea of the inequality of social groups based on birth. Of course there was some amount of social mobility and there was the possibility of escaping this inequality at a higher level – that of one who had attained perfect wisdom and insight or a devotee who had attained the heights of devotion to god in bhakti. But otherwise, in the ordinary mundane world, there was a general acceptance of the idea of natural inequality.

As for freedom, while the distinction between a free person and a slave was recognized, the sort of freedom most often spoken of in texts was freedom from the cycle of birth and death. Of course texts largely reflect the perspectives of upper class, upper caste men – their ideas of what an ideal social and political order should look like. What was happening on the ground is more difficult to ascertain. At the very least, we must assume a great deal of diversity across the subcontinent in ideas and systems of justice.

The main institutions and structures of inequality in the context of ancient India were the patriarchal family and household, varna (the four-fold classification of Brahmin, Kshatriya, Vaishya and Shudra), jati (caste), untouchability and slavery. The origins of some of these – patriarchy, varna and slavery – can be traced to Vedic texts, while caste and untouchability made their appearance in North India in the 6th/5th centuries BCE, and several centuries later in the South.

In fact, the early history of caste is inadequately understood. The growth of the caste system and Brahminical privilege is connected with the proliferation of monarchical states and the expansion of agrarian society. But social inequality was also accepted by Jainism and Buddhism (though they placed the Kshatriya above the Brahmin). It was only in the a-social world of the monastic order that social distinctions were supposed to vanish, at least theoretically. Although the manifestations and degrees varied, gender inequality was deeply ingrained in social and religious practice across the board.

The mechanisms for the settlement of civil and criminal disputes in ancient times must have varied a great deal across regions and time, and involved groups such as village communities and headmen, assemblies and corporate organizations such as guilds. But at an early stage in the history of monarchy, the state asserted a powerful claim to have the preeminent right to adjudicate civil and criminal disputes and the right to impose pain, punishment and death on subjects. The following sections discuss certain aspects of the ideas about kingship and justice as revealed in a few Sanskrit, Pali and Prakrit sources. What happened on the ground across the regions of the subcontinent must have varied considerably and must have been greatly influenced by local custom.

 

The relationship between the king and his subjects (praja) is central to all ancient Indian theories about the origins of kingship. Taxes are presented as the king’s wages for his performance of his duties, and foremost among these duties is danda (literally, ‘the rod’), which means punishment and justice. The king’s danda is said to prevent a descent into matsyanyaya (the law of the fish), a situation of anarchy in which the strong devour the weak, where violence and disorder prevail, and neither life nor property are secure. Let us look at three accounts of the origins of kingship – two from the Mahabharata and one from the Buddhist Tipitaka.

The Mahabharata, composed roughly between about 400 BCE and 400 CE, contains extensive discussions of kingship and justice. The compositional history and structure of the work, consisting of long, rambling narrative and didactic portions, make it an excellent vehicle for expressing irreconcilable views and irresoluble dilemmas. The Shanti and Anushasana Parvas of the Mahabharata contain a long dialogue between Yudhishthira and Bhishma, the latter lying on the edge of death on a bed of arrows. Yudhishthira has many questions, especially about the dharma of a king, and Bhishma answers them all.

 

The Shanti Parva contains two accounts of the origins of kingship. The first begins in an age of perfection, when kingship and punishment did not exist because everyone followed dharma (righteousness, duty). However, at some point in time, men started falling prey to vices such as greed, desire and passion, and the Vedas and the sacrifices disappeared. The gods were alarmed and went to Brahma, who gave an intellectual response to the problem by composing a long work consisting of a hundred thousand lessons on dharma, artha (material gain) and kama (sensual pleasure). The gods then approached Vishnu for a more practical solution. Vishnu produced a mind-born son Virajas to rule over men, and he was followed by his two sons. These three refused to rule because they were inclined towards renunciation; Ananga was next in line and he ruled well, but his successor Atibala lacked control over his senses.

Then came the evil king Vena, whose mind was dominated by passion and hate, and who did not discharge his duties properly. The sages stabbed him to death with blades of sacred kusha grass. They churned his right thigh, and out of it emerged an ugly man named Nishada (a forest tribal), who they told to go away because he was not fit to be king. Then they churned Vena’s right hand and from that emerged Prithu, a man learned in the Veda, the auxiliary texts, dharma, artha, the military arts and statecraft. Prithu proved to be a good, exemplary king.

 

The second account in the Shanti Parva describes kingship as the result of divine intervention and a social contract. It begins with a description of the violence and anarchy of the kingless state. Oppressed by these conditions, the people made a pact among themselves to get rid of violent, aggressive men who stole, violated women and performed other such evil acts. However, this arrangement did not work. So they went to Brahma and begged him to appoint a king who could protect them. Brahma chose Manu, but Manu refused because he was afraid of the cruel acts he would have to perform as king.

The people allayed his fears and explained the full bargain – the sins incurred by his cruel deeds would disappear; the people would give him 1/50th of their cattle and gold, and 1/10th of their grain; one-fourth of the merit earned by them would go to Manu; and mighty warriors would follow him around everywhere. Manu accepted this pact and went around the earth, punishing the wicked and making them perform their duties.

The early Buddhist view on the origins of kingship is contained in the Agganna Sutta of the Digha Nikaya. This begins in a primordial, pristine age of perfection when beings were undifferentiated, luminous, made of mind, and fed on rapture. At some point, a decline set in. Largely due to greed, the evils of theft, accusation, lying and punishment reared their head, and one being stole rice from another being’s field. The beings assembled and decided that some solution to this disorder was necessary. They approached the one among them who was the most handsome, charismatic and authoritative and offered him the following deal: he should protect everyone’s property and punish those who committed crimes; in return, they would give him a portion of their rice.

The first Shanti Parva account is more dramatic than the second, but both tell a complex story. Kingship has a rocky start. Some of the earliest candidates have serious character flaws, some do not want to be king, some have to be cajoled, one has to be killed. In the first account, the gods and sages play key roles, and in the second, the gods and the people. The Agganna Sutta gives a simpler story and talks about a direct social contract between the people and the king, with no intermediaries. But in all three accounts, kingship is described as essential in order to bring an end to violence, crime and disorder and to prevent the recurrence of these things. The king’s primary duties are the maintenance of social order, protection of private property and the imposition of punishment.

 

The king’s punishment is supposed to be scrupulously balanced and fair. In the Mahabharata, Bhishma tells Yudhishthira that danda was created by Brahma for the protection of the world so that people performed their duties. It is the fear of danda that prevents people from killing each other. The king’s punishment can take the form of censure, imprisonment, fines, corporeal punishment, banishment, bodily mutilation and death. However, this punishment must be measured, in accordance with proper judicial principles, proportionate to the crime and utterly impartial.

In matters related to punishment and taxation, the king should be both gentle and fierce, like the spring sun. This is part of a larger model of the ideal ruler who is a brave warrior, intelligent, learned, well-trained, disciplined, detached and self-controlled; one who does not give in to impulse or passion but listens to good advice and acts only after careful deliberation. It is only such a king who can be just.

 

References to this kind of ideal ruler are scattered across ancient Indian texts of many kinds. For instance, Kalidasa’s Raghuvamsha describes the ideal king as wise, well educated, well trained, a brave warrior and skilled in the art of governance. The ideal king is yuktadanda – one whose punishments are fair and measured. Kalidasa describes the great king Raghu thus: ‘…by dispensing fair punishment he won the hearts of the whole world, like the southern wind which is neither too cold nor too hot.’

Why should a king bother to be just and perform his duties? The Mahabharata has a simple answer – good kings earn merit and go to heaven; bad kings earn sin and go to hell. But there is another angle too. The Mahabharata warns that a king’s neglect of his duties can lead to justified violence against him. A cruel king, who does not protect his people and who robs them in the name of levying taxes, is evil incarnate and should be killed by his subjects as though he were a mad dog. Were such statements intended as a warning to kings to behave themselves, or were they endorsements of rebellion and regicide? It would be tempting to hold that it was the latter, but we should not get carried away. What we can conclude is that although the overall tenor of all the texts of ancient India is pro-monarchy, a window for critique is left open.

Such theories could be used to justify the use of force by the state against unruly subjects (whether they actually ever were directly used is unknown). In the Uttarakanda of the Ramayana, the otherwise compassionate Rama kills the Shudra Shambuka. His crime? Shambuka had violated the varna order by performing austerities and this violation led to the premature death of an innocent Brahmin child. Here, the king’s punishment is directly linked to the maintenance of the social order. So actions against subjects who did not toe the line could be justified on the grounds of the need to maintain the social order. It could be argued that this was in the larger interests of the social group and the performer of the transgressive act himself.

 

Kautilya’s Arthashastra is a brilliant treatise on statecraft that grounds kingship in pragmatic self-interest. Contrary to the popular belief that this work was written in the 4th century BCE during the reign of Chandragupta Maurya, recent scholarship places its composition between c. 50 and 300 CE. It is important to remember that the Arthashastra is a theoretical work on statecraft and describes a potential state. Although it contains the first detailed law code in India, there is no indication that its prescriptions were actually used to decide civil or criminal cases. Nevertheless, the text is of great importance in histories of political and legal ideas.

Kautilya’s statements on the nature of the king’s punishment are in line with the Mahabharata views cited above. The king must be impartial and his punishment must be rooted in discipline and self-control; only then does it brings prosperity to all living beings. A king who is severe with the rod becomes a source of terror to all beings, and one who is excessively mild is despised. If the rod is used unjustly, through passion, anger, or contempt, it becomes dangerous. A king who metes out wrongful punishment will not escape punishment himself.

 

The Arthashastra gives primacy to the royal edict (raja-shasana) among the four legal domains, the other three being dharma (the higher, universal ‘law’), vyavahara (laws related to legal transactions) and charitra (custom). It talks about the king as a dispenser of justice but also refers to various sorts of judges.

Kautilya distinguishes between two kinds of suits – vyavahara and kantakashodhana. Vyavahara refers to transactions between two parties, such as lawsuits related to commercial transactions, marriage, inheritance, property, debt, sale and gifts. In such cases, the trial was supposed to be conducted by three judges known as dharmasthas; most of the crimes in this category invite fines. Kantakashodhana (literally, ‘the removal of thorns’) refers to various criminal offences such as fraud, theft, corruption and murder. These were to be decided by three judges known as pradestris; they invited punishments such as fines, torture, mutilation and death.

In the Arthashastra, as in other ancient texts, the idea of justice is rooted in the idea of natural inequality. The text recognizes several bases of inequality, but varna is the foremost. The varna of the defendant, complainant and other individuals involved are usually key elements in deciding on the appropriate punishment. Punishments in the Arthashastra include fines, confiscation of property, exile, corporeal punishment, mutilation, branding, torture, forced labour and death. The control over women’s sexuality was central to the project of the maintenance of the varna (and caste) order. Hence, it is not surprising that some of the most violent punishments are for sexual transgressions across varnas. For instance, Kautilya recommends that a Shudra having sexual relations with a Brahmin woman should be burnt in a straw fire.

Kautilya accepts torture both as punishment and as a means of acquiring information during interrogation. Types of torture include striking, whipping, caning, suspension from a rope and inserting needles under the nails. The Arthashastra distinguishes between two kinds of capital punishment – simple death (shuddhavadha) and death by torture (chitravadha). The latter refers to especially painful deaths which may have also involved public spectacle. The varieties of death by torture include burning on a pyre, drowning in water, cooking in a big jar, impaling on a stake, setting fire to different parts of the body, and tearing apart by bullocks.

 

The Arthashastra is often read as an endorsement for a totalitarian state and state violence. In my view, its entire discussion is premised on a recognition of the fragility of the king’s power and the need for the king to use reason and consult others rather than acting foolishly, recklessly or impulsively. Kautilya advocates ruthless, carefully calculated and effective use of preemptive and post-facto violence by the state in order to prevent and respond to violence against the state. He talks of the dangers of the excessive force by the state and warns of the danger of popular disaffection and uprising against a king who is cruel or unjust. The term used for this is prakritikopa (the anger of the people).

The anger of the people can lead to the loss of power or even life for the king. Kautilya’s greatest achievement was to ground kingship in real politik rather than dharma or pious sentiment. He was able to demonstrate that it was in a ruler’s self-interest to rule intelligently, ruthlessly and well, and to ensure the prosperity of his people.

 

Although Brahminical texts such as the Mahabharata talk about nonviolence and compassion, these elements are taken to much higher levels in the Buddhist and Jaina traditions. The Buddhist Jatakas, which are stories about the previous lives of the Buddha, talk of good kings and bad kings. The good king protects his people and is truthful, just, and compassionate towards all creatures. For instance, the Rajovada Jataka tells the story of a bodhisattva (Buddha-to-be) who was king of Banaras; he was so righteous and administered justice with such perfection that the courts were deserted.

The most celebrated Buddhist king in ancient India is the 3rd century BCE Maurya emperor Ashoka. His inscriptions, inscribed on rocks and pillars in far-flung parts of the subcontinent, talk obsessively and incessantly of dhamma (Prakrit for dharma; goodness, piety). The delivery of justice was an important part of Ashoka’s idea of the dhamma of a king. Ashoka’s Separate Rock Edict 1, addressed to city magistrates, raises the problem of people suffering as a result of unfair imprisonment and harsh treatment, and exhorts officials to deal with such cases with fairness and impartiality. Justice is discussed in greater detail in Pillar Edict 4, which describes the duties of officers known as the rajukas.

Ashoka urges them to understand what causes the people pleasure and pain, and to hand out rewards and punishments fairly, confidently and fearlessly. He states that there should be impartiality (samata) in judicial proceedings and punishment. He announces a three-day respite to prisoners condemned to death, to give their relatives time to persuade the rajukas to grant them life; or, if this failed, to give the prisoners time to distribute gifts or undertake fasts to attain happiness in the next life. This three-day respite indicates that Ashoka did not abolish the death penalty. Apart from enabling the convict to undertake last-minute measures to try to attain happiness in the next world, the edict suggests that in normal circumstances, execution swiftly followed sentencing.

So Ashoka sought to temper the violence inherent in capital punishment in three ways: by exhorting the judicial officers to be fair; by ensuring that there should be time and opportunity for a last appeal before the execution of the sentence; and if this appeal failed, by granting the condemned man an opportunity to prepare for his next life.

 

Ashoka did not rely on moralizing and exhortation alone. He also put in place a system of surveillance over the judicial officers – the pulisani were supposed to keep an eye on the rajukas, to ensure that they administered justice properly. The analogy used for the rajuka is that of an experienced wet nurse, associated with affectionate feminine care and nourishing. This was complementary to the paternalistic sentiment associated with the king himself. The aim of the rajukas is in fact the same as that of the king – to ensure the welfare and happiness of the people.

The most compassionate of ancient Indian kings did not try to change the nature of the laws. The focus was on fairness in their application and execution. He recognized and tried to remedy flaws in the justice delivery system. The king projected himself as a maintainer of justice and simultaneously distanced himself from instances of actual injustice, for which the responsibility was placed squarely on his judicial officers. Ashoka saw the administration of justice as part of the higher goals of the state, namely to ensure the welfare and happiness of all beings in this world and the next.

 

These are just a few of the perspectives related to justice that have come down to us from ancient times. There are many others, expressed in other languages, for instance Tamil, which has a long and rich history. We do not know enough about the actual administration of justice in ancient India. Clearly, kings could not have controlled everything in their realm. Their effective power and control must have been strongest in and near their capital city. There must have been a great deal of variation in legal customs and procedures across the subcontinent, and these must have changed over time.

Using ancient India as a resource for our own time presents two temptations that have to be resisted – the temptation to glorify and the temptation to condemn. The aim should be to understand ideas and to assess them using the standards of their own time. As mentioned at the outset, ancient societies accepted the idea of natural inequality of social groups, which is diametrically opposed to the basic premises of modern democracies.

If we want to extract some takeaways for our own times from ancient texts, it can be the following ideas – that a ruler must be utterly impartial in the administration of justice and must not be swayed by considerations of personal favour or profit, and that the inflicting of excessive or wrongful punishment will invite dire retribution. In fact, Kautilya’s idea of cruel and unjust rulers meeting their nemesis due to prakritikopa, ‘anger of the people’, suits modern democracies better than ancient monarchies.

top