The Classical Hindu Approach: Danda
Chapter Twenty-One
Syllabus topic 1, "Introductory"
Pages 84 to 87 of 806
In one line
In classical Hindu thought punishment is danda, the rod, and it is not a policy the king may adopt or drop but the duty on which the whole social order is held to depend.
In the wording a student can write in an exam: the classical Hindu approach to punishment is expressed in the concept of danda. Punishment is the king's foremost duty, imposed on him by dharma, and its object is the maintenance of the moral and social order rather than the vindication of a private wrong. The Dharmasastra literature, principally the Manusmriti, the Yajnavalkya Smriti and the Arthasastra of Kautilya, treats danda as the force which restrains men from wrongdoing, sets out four graded forms of it, insists that it be proportionate and imposed after due consideration, and warns that danda wrongly inflicted destroys the king who inflicts it.
Why MU asks this, and how to answer it
The University has set the classical Hindu and Islamic approaches to punishment on five of the eight printed papers this book has read, more often than any other single topic in Module I. And the question is almost never simply descriptive: it asks about their utility in the present system of penology, which means the answer must end in an argument and not in a description. That argument is in [What the Classical Approaches Are Worth Today].
What danda means
The word means the rod or the staff, and by extension the coercive authority the rod symbolises. It is used in three linked senses in the literature.
The instrument. The rod itself, the visible mark of the king's authority.
The act. The infliction of punishment.
The principle. The coercive power of the state, personified in some texts as a deity, on which order depends. The classical formula is that danda alone governs all creatures, that danda protects them, and that danda keeps watch while they sleep.
The third sense is the reason a Hindu jurisprudence of punishment is not a theory of what the offender deserves but a theory of what the ruler must do. The whole weight falls on the king.
The theory in its own terms
The matsya nyaya, the law of the fishes. The classical justification of danda begins with what happens without it: in a world without the rod, the big fish eats the small, and there is no security for anyone. That image is the Indian equivalent of Hobbes's state of nature, and it appears in the Manusmriti and in the Mahabharata.
Danda is the king's dharma. It is not discretionary. A king who fails to punish incurs the sin of the offence himself, because he has permitted it. This is the strongest form of the duty to punish found in any classical system.
The Classical Hindu Approach: Danda
The purpose is order, not vengeance. The texts give several purposes: to restrain the wrongdoer, to deter others, to purify the offender, and to protect the good. All four of the modern theories of punishment can be found in the Dharmasastra material, which is a point worth making in an answer and which is developed in [What the Classical Approaches Are Worth Today].
Purification. A punishment properly borne was held to remove the sin, so that the offender was restored rather than permanently degraded. That is the classical Indian version of the expiation theory in [The Expiation Theory], and it is the strongest link between this material and the rest of Module I.
The four forms of danda
The literature classifies punishment into four kinds, in ascending order of severity.
| Form | What it is |
|---|---|
| Vak-danda | Admonition, the reproof by word |
| Dhik-danda | Censure, public reproach |
| Dhana-danda | Fine, punishment in wealth |
| Vadha-danda | Corporal punishment, including mutilation and death |
Note the order. The lightest is a word of warning and the second is a public reproach. A system that begins its scale of punishments with admonition and censure is closer to the modern law of probation than to anything in nineteenth century England. Section 3 of the Probation of Offenders Act 1958 is release after admonition, and the parallel is exact enough to be worth drawing in an answer.
The limits the texts impose
This is where a good answer separates itself, because the popular picture of Hindu punishment is of savagery, and the texts themselves are full of restraint.
Proportion. Punishment must be proportionate to the offence. Manu is explicit that the king who punishes those who do not deserve punishment, and does not punish those who do, incurs great infamy and goes to hell.
Deliberation. The king must inflict danda only after full consideration, having regard to the motive, the time and place, the strength and the learning of the offender.
Danda destroys the unjust punisher. The recurring warning is that the rod, wrongly wielded, destroys the king who wields it together with his family. That is a doctrine of accountability, expressed in religious rather than institutional terms.
Gradation by circumstance. The texts grade punishment by the offender's knowledge, by whether the act was repeated, and by the offender's capacity, which is individualisation of a kind.
The feature that must not be omitted
The classical texts grade punishment by varna, that is by the social class of the offender and of the victim, and they do so openly and to the disadvantage of the lower classes.
Any honest answer says this. There are two reasons to say it rather than to pass over it.
The Classical Hindu Approach: Danda
It is what the texts say, and a treatment that presents the classical system as uniformly humane is not a description of it.
It is what makes the utility question real. MU asks what these approaches are worth in the present system, and the answer has to reckon with the fact that a system built on graded liability by birth is flatly inconsistent with Article 14 of the Constitution. What survives is the reasoning about proportion, about purification and about the duty to punish, not the scale of liability.
The point is not merely historical. The Supreme Court has in recent years struck down prison manual provisions which assigned work in Indian prisons by caste, and that is dealt with in [Caste in the Prison].
A worked example
Take a theft, as the Dharmasastra would treat it.
The classification. Theft is among the offences for which the texts prescribe punishment ranging from fine to mutilation, and the scale rises with the value of the property and with repetition.
The graded factors. The offender's knowledge of the wrong, whether it is a first or repeated offence, the value taken, the relationship of the offender to the victim, and, in the classical texts, the varna of both.
The purification element. The punishment borne is treated as expiating the sin, so the thief who has been punished is not thereafter to be reproached with the theft. Compare section 12 of the Probation of Offenders Act 1958, which removes the disqualification attaching to a conviction, and the parallel becomes visible.
Where the modern lawyer parts company. The grading by varna. Article 14 forbids it, Article 15 forbids discrimination on the ground of caste, and the modern law grades by the offence and by the offender's culpability alone.
Quick revision
- Danda means the rod, and stands for the instrument, the act and the principle of coercive authority.
- Matsya nyaya, the law of the fishes: without danda the strong devour the weak.
- Punishment is the king's dharma, a duty and not a policy. A king who fails to punish shares the sin.
- Four forms in ascending order: vak-danda admonition, dhik-danda censure, dhana-danda fine, vadha-danda corporal punishment including death.
- Purposes found in the texts: restraint, deterrence, purification and protection of the good, which map onto all four modern theories.
- Limits: proportion, deliberation, and the warning that danda wrongly inflicted destroys the king.
- Punishment is graded by varna, which is inconsistent with Articles 14 and 15 and must be stated rather than passed over.
Test yourself
1. What does danda mean, and in what three senses is it used? It means the rod or staff. It is used for the instrument itself, for the act of punishing, and for the principle of coercive authority on which the maintenance of order is held to depend.
The Classical Hindu Approach: Danda
2. State the four forms of danda in order. Vak-danda, admonition; dhik-danda, censure or public reproach; dhana-danda, fine; and vadha-danda, corporal punishment including mutilation and death.
3. Why is punishment described as the king's dharma rather than as his policy? Because the texts impose it as a duty. Danda is the means by which the king discharges his obligation to protect his subjects, and a king who fails to punish an offender is held to incur the sin of the offence himself. It is therefore not open to him to decide against punishing, as it would be if punishment were a matter of policy.
4. Give two limits the classical texts place on the king's power to punish. Proportion: the punishment must fit the offence, and the king who punishes the undeserving or spares the deserving incurs infamy. And deliberation: danda must be inflicted only after full consideration of the motive, the time and place, and the circumstances of the offender. The texts add the warning that danda wrongly wielded destroys the king and his family, which is a doctrine of accountability in religious form.
5. Why must an answer mention the grading of punishment by varna? Because the texts do it openly, so an account that omits it is not a description of the system. And because the University's question is about the utility of the classical approach in the present system, and the answer to that question turns on separating what survives, the reasoning about proportion, purification and the duty to punish, from what cannot survive Articles 14 and 15 of the Constitution.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.