INSTITUTION OF JUSTICE
ABUSE AND DEFAMATION
A Kshatriya who abuses a Brahman is fined 100 panas; a Vaisya who abuses a Brahman is fined 150 panas; a Shudra who abuses a Brahman deserves physical torture. (8-267) Jha was off the mark when he translated vadha as immolation.
Medhatithi and others translated torture as including beating, cutting off the tongue, actual death etc. As the Shudra worker was often paid in kind he could not be required to pay the fine in currency. The Vaisya was richer than the Kshatriya and was asked to pay a higher fine. It may be borne in mind that most Brahmans, though highly educated, led a simple life almost bordering that of a beggar.
If the Brahman was not respected he at least deserved being pitied for having opted for such a life of self-denial. Of course this verse and the subsequent ones have been cited often to establish that the four varnas hierarchy is unjust, inhuman and immoral. The editors of Manusmrti expected greater patronage for the intelligentsia from the wealthy and the mighty than what they did get.
If a Brahman abused a Kshatriya who was part of the administration, the police and the army, he was fined 50 panas. If he abused a wealthy Vaisya, he was fined 25 panas. If he abused a Shudra he was fined 12 panas. (8-268) Abusing another needs to be penalized whoever the victim is. Punishment has to be the same to whichever classes the guilty and the victim belong.
But when a Kshatriya abused a Vaisya or a Shudra, or Vaisya abused a Kshatriya or a Shudra, the above principle of higher penalty in the case of abusing a person of a higher social rank and milder penalty in the case of abusing one of a lower social class must have been followed.
The courts everywhere and during all times have been seen to fear the mighty and favour the rich and yet have considered themselves to be more venerable than others. The rule 267 was applied to the guilty among the litigants who abused the Brahman judge and the rule 268 to the litigant who was a Brahmana by class affiliation. Not all courts were presided over by Brahmans. Only the constitution benches were presided over by Brahmans who had mastered the constitution, Atharvaveda or Brahma. Most courts were community courts with the litigants and the judges belonging to the same community.
Among the dvijatis, twice-born, when the guilty and the victim are of the same social class, samavarna, the fine is only 12 panas. If the guilty had used unutterable words, the fine was doubled. (8-269) If one who belonged to the ekajati, that is, to an uninitiated class (of Shudras) insults a twice-born, Brahman or Kshatriya or Vaisya, he should suffer the cutting off of his tongue, as he is of low origin (jaghanyaprabhava). (8-270) This inhuman and unjust provision must have been introduced when the higher classes had lost power and could but rant. The pre-varna social hierarchy had more than forty cadres of which this offender belonged to one of the lowest.
Dvijatis were those communities that had been ordained and accepted among the three higher varnas and the higher mixed varnas, which had some tinge of the traits expected of Brahmans, Kshatriyas or Vaisyas. Only those groups who failed the empirical tests used for absorption were kept back and kept out of the privileges of the three higher varnas. The medieval commentators have suggested that the interdict applied not only to Shudra but also to the groups that were born of pratiloma marriages (where the wife belonged to a class superior to that of the husband). A Shudra was too poor to pay fine. If he was found to indulge in abusing others knowing that he could be only whipped, as he had no wealth to lose, the judge threatened to cut off his tongue. The judge could only threaten; he could do nothing more. .
If the Shudra mentions the name and community of these men with scorn, a burning iron nail ten inches long shall be thrust into his mouth. (8-271) As Jones hints this punishment was ordered by the presiding officer who was to be honoured as Devadatta, as a protg of a noble but was abused as one born illicitly to a Brahman (woman).
If through arrogance the offending Shudra worker teaches the Vipras (the scholars appointed to help the Brahman judge) their duty (dharma), the administrator (parthiva) of the agrarian tracts who had control over the predominantly agricultural workers, the Shudras, might threaten to pour heated oil into his mouth and ears, to make him deaf and mute. (8-272)
The parthiva was a Vaisya, a landlord and not a Kshatriya soldier and might not have been initiated as a twice-born. The Shudras had not been brought under the classes eligible for education in socio-cultural sciences and as a result did not know the value of humility and modesty. They spoke out often in anger, which was interpreted as arrogance and impertinence. Not onlyShudras but also all those who were uninitiated were warned that these penalties would be imposed if they violated the code of conduct to be observed in the court and the decorum expected of litigants and witnesses.
He who through arrogance (darpa) speaks ill of the learning (in Vedas) of these scholars or of the region from where they hailed or the community to which they belonged or the occupation they followed or their physical features, should be fined 200 panas. (8-273)
Contempt of the judiciary was not tolerated. If one truly calls another one-eyed or lame without intending to accuse the other of being partial and dependent on others, he should be punished only one karshapana. (8-274) Burnell notes that this amount is the minimum fine. The arrogant among the litigants and witnesses were not necessarily from the class of Shudras. Many were highbrows, educated but not modest.
He who defames his mother or father, wife or brother, son or teacher should be made to pay a hundred panas as fine; as also one who does not yield way to his teacher. (8-275) These offenders were educated but not cultured. Shudras were uneducated and did not know how to conduct themselves in the court. But the arrogant persons among the litigants and witnesses who appeared before the lower courts were not educated to conduct themselves properly.
The discerning judge should fine a Brahman who abused a Kshatriya 200 panas (lowest of amercement) and a Kshatriya who abused a Brahmana 500 panas (the middle amercement). These disputes were the result of foolhardiness, sahasa, and had roots in status claims. A Vaisya who abused a Shudra was fined 200 panas and the Shudra who abused a Vaisya was fined 500 panas. Mutilation was prohibited. These abuses were the fallout of economic disputes (8-276,277). The editor thus pronounces the rules regarding the penalty (danda) to be levied for verbal assault (vakparushya). (8-278)
PHYSICAL ASSAULT AND HURT
(8-279 to 301)
Buhler translates the verse (8-279) as: With whatever limb a man of a low caste does hurt to (a man of the three) highest (castes), even that limb shall be cut off; that is the teaching of Manu. Jha translated it as: With whatever limb the lowborn man hurts a superior person, every such limb of his shall be cut off; this is the teaching of Manu. Jones read it as: With whatever member a low-born man shall assault or hurt a superior, even that member of his must be split, or cut more or less in proportion to the injury; this is an ordinance of Manu. Burnell read it as: If a man of the lowest birth should with any member injure one of the highest station, even that member of this man shall be cut (off); this is an ordinance of Manu.
It needs to be remarked here that the later editors of Manusmrti have invoked the name of Manu to interpolate rules that were not supported by Manu Svayambhuva or by Manu Vaivasvata. Even Manu Tamasa and Manu Raivata could not have supported rules like this. Svayambhuva was an advocate of non-violence and truth, ahimsa and satya. He preferred to suffer all harassment at the hands of his detractors rather than resist them.
The term, antyaja, referred to the people born in the far-off regions, beyond the social periphery. They belonged to the frontier society of forests and mountains that had an industrial economy and was technologically more advanced than the agro-pastoral core society but not culturally. According to the rules of that society, the practices of the wealthy, sreshta were to be followed by its entire populace.
It was eager that these role models were not to be abused or physically assaulted. But those who were born in the economically weaker classes were jealous of them and often resorted to violence against them.
The rich sreshta could not defend himself and had to appeal to the political authorities of that society. The latter followed the rule of eye for eye, tooth for tooth, blood for blood. It was a rule that was anathema to Manu Svayambhuva and the cultured society that he desired to build up. The later editors of Manusmrti had lost sight of this orientation. This orientation was not prevalent in the agro-pastoral commonalty, prthvi.
If he raises his hand or a stick, danda, his hand should be cut off. If he strikes in anger with his foot, his foot should be cut off. (8-280) This was obviously a warning to the uncultured that unruly conduct would not go unpunished. They had to be disciplined. If a low-born person (apakrshtaja) tries to occupy a seat beside (saha asanam) his superior (utkrshtaja), he should be branded on the hip and banished (nirvasya); or (the king) shall have his buttocks gashed. (8-281)
In these disciplinary measures varna or class distinctions are not referred to, though the varna hierarchy had come into existence. It could not remove the status distinctions that were present in every class. If out of arrogance (darpa) the person (who offended protocol) spits (on his being removed from his seat), the civil administrator (nrpa) should have his lips cut off; if he urinates, then his penis; and if he breaks wind, his anus. (8-282)
It was not easy for the nrpa to get every one maintain decorum and honour protocol. He had to resort to tough measures to keep out the unruly. It is not fair to say that these measures were intended to oppress the lower classes. If he (who has intruded in the assembly of the elite) catches hold of the hair, the nrpa shall unhesitatingly have his hands cut off; also if he lays hold of the feet, the beard, the neck, or the scrotum. (8-283)The post and function of the administrator was not an enviable one.
One who bruises the skin should be fined 100 panas; as also one who causes bleeding; he who cuts the flesh will be fined six nishkas (twenty four suvarnas, gold coins); he who breaks the bone of another should be banished. (8-284) Brhaspati and Usanas are reported to have recommended death sentence for violent assault leading to fracture of bones. Some vented their anger against trees.
In the case of damage done to trees, the punishment would be proportionate to the injury inflicted on them.(8-285) It was an age when the dwellers of the forest had been brought under the jurisdiction of the janapada orrashtra and the civil administrator was placed in charge of them. He had however to apply to them to the same laws as they were accustomed to. The varna classification had not yet been extended to them. While the agriculturists and pastoral people had accepted this classification the frontier society was more particular about economic status and the workers were rebellious. They could be reined in only by threat of corporal punishment.
When a hurt has been inflicted on commoners (manushyas) of the core society or their cattle (by these unruly workers of the forest) with the motive of causing pain, the rural administrator (prthvipati) shall inflict punishment (danda) in proportion to the seriousness of the pain caused.
The prthvipati was in charge of the commonalty (manushyas, prthvi) that included agriculturists, pastoral people and traders. Both theVaisyas and the Shudras were included in this commonalty. The intellectuals, teachers and priests (Brahmans) and also the local officials and the policemen (Kshatriyas) were not covered by the term, manushyas. (8-286)
The prthvipati was administrator of the predominantly agro-pastoral areas whose working classes, manushyas, were organized as clans and communities. He had to honour their customs and codes, dharmas, while governing them and regulating their activities. The nrpati on the other hand was in charge of the free men, naras, who did not come under the ambit of these codes. This organized sector was protected against the rebellious workers of the forests and even from the disobedient free men who did not acknowledge the codes of the clans and communities or even of the classes. Punishment should however not be blind revenge.
In the case of injury to limbs or of choking or excessive bleeding, the assailant should be made to bear the expenses for the treatment and recovery of the victim or the whole amount as fine, danda. (8-287) This fine is levied if the victim does not accept the payment of the expenses from the assailant. When one either knowingly or unknowingly damages the goods of another, he should compensate the loss and had to pay the king (raja) a fine equal to the loss. (8-288)
In the case of leather and utensils made of leather, or of wood or of clay, the fine was five times the value. So too in the case of flowers, roots and fruits. (8-289) The loser had to wait for the next season to get them replaced. He had to go to the forests for this purpose and it was a risk with the rebellious forest men on the prowl. The king (raja) had to give the procurer additional protection and hence this high rate of fine. The rural administrator (prthvipati) and the civil administrator (nrpati) were not in a position to provide this protection, as they did not have armed men under their charge. Replacement of these was not easy.
In the case of the conveyance, its rider and its owner, ten circumstances are excluded; for the rest, the assailant is fined according to the seriousness of the harm inflicted. (Jha) (8-290) When the nose-string snaps, when the yoke breaks, when the vehicle turns sideways or backwards, when the axle breaks, when the wheel is broken, when the fittings give way, when the yoking strap is broken, when the bridles are torn and when there has been the loud cry, get out of the way, there is no punishment. The driver of the vehicle or its owner cannot be charged with having injured the pedestrian. It is an accident(?). Manu has declared so, the verses say. (8-291,292).
This clause must have been introduced later to save the rich from the wrath of the poor and the authority of Manu mentioned to introduce a clandestine bias in favour of the rich.
When however, on account of the ineptitude of the driver, the cart overturns and causes injury, the owner shall be fined 200 panas. If the driver is a trained one, it is he that should be punished; if the driver is untrained, all the occupants of the vehicle should be fined a hundred panas each. (8-293,294) It is presumed that one of these occupants was driving the vehicle without being trained to drive it. All the occupants were held responsible for this violation of rules that led to the accident and injury to the pedestrian.
But if the driver was stopped on the road by a cow or by a vehicle and this led to the death of a servant (bhrta) or an animal the penalty is clearly mentioned. (8-295) The driver or the owner who was driving the vehicle would be given only a light punishment. Burnell translates this verse as: But if he being detained upon the way by cattle or by a chariot, should thereby cause the death of animate creatures, a fine should without hesitation be imposed. The above verse has been interpreted differently by some implying that the chariot driven by him or its animal (pasu) had run over a hireling accompanying the vehicle.
In the case of a man (commoner, manushya) being killed on the spot, the guilt would be similar to that of the thief; and half of that in the case of the larger animals, such as cows, elephants, camels, horses and the like (used for driving the vehicle). (8-296) Lives of employees and commoners have always been cheap and the lives of animals cheaper. The fine for the death of a commoner-pedestrian must have been one thousand panas and that for large animals five hundred panas. The owner of the chariot could have afforded it.
In the case of hurting petty animals, the fine was 200 panas; in the case of auspicious animals (deer) and birds (parrots, swans), the fine was fifty panas. (8-297) If a donkey or goat or sheep was killed, the fine was a coin (panchamashika) equivalent in value to five mashas. This must have been more than 200 panas but less than 500 panas. It was one masha in the case of a dog or pig. (8-298)
Accidents were punished proportionate to the value of the life lost. It is so now too and everywhere in the world. Justice has never been impartial between unequals. Even between equals it has not been always equal. Where there is inequality in status there is inequity.
Often such accidents took place when untrained members of the family (like wife, son, servant, courier, brother and stepbrother) were on the vehicle. If they were guilty they had to be tied with ropes and beaten with bamboo sticks but only on the back and never on the upper part of the body. The person who beat the guilty relative of the owner of the vehicle on any other part of the body would have to pay a fine equal to the one prescribed for theft, that is, 1000 panas. Obviously, the administrators were not prepared to annoy the rich who owned chariots. (8-299,300) Thus the rules regarding the penalty for causing injury to others are explained. (8-301)
THEFT, ROBBERY AND VIOLENCE
(8-302 to 351)
The civic administrator in charge of the free men (nrpa) was required to make the best efforts for suppressing (nigraha) thieves (stena). By the suppression of thieves the rural hinterland (rashtra) under his charge flourishes (vardhata) and he is successful in his objective (yasa). (8-302) Burnell translated this verse as: In restraining thieves the king should exert the greatest possible effort, for the fame and realm of the king are increased by restraining thieves.
The failure to distinguish among the statuses and powers of the different levels of rulers and administrators has harmed the development of an outline of Hindu Social Polity. Similarly the failure to distinguish between the state, rajyam, and the nation, rashtram has harmed it. So too have the attempts to describe the term, rashtram, as a cultural notion only instead of as a demographic one linked to the rural native hinterland, janapada, proved harmful to this development.
Jha interprets the next verse (8-303) as: The king who imparts security is ever to be honoured; his sacrificial session constantly prospers, accompanied as it is by the gift of security. Buhler too translated it along this line. That king, indeed, is ever worthy of honour who ensures the safety (of his subjects); for the sacrificial session (satra, which he, as it were, performs thereby) ever grows in length, the safety (of his subjects representing) the sacrificial fee.
Burnell translates it as: For that king who bestows security is ever to be honoured, for this is (as it were) a sacrifice that ever increases unto him, whereat the sacrificial gift is the security. The rural administrator (nrpa) who gives asylum and security (abhayam) is revered (poojya). The nrpa receives as fees (dakshina) for his act of ensuring safety, a status equal to that of a noble (sadaiva). This economic support from the beneficiaries helps his school of colleagues (satra) (that as a part of the institution of spies watches the happenings in the society), to flourish.
The nrpa, the leader of the free men who are not members of any clan or community is in charge of this school of social activists (satras) and also of the scouts (chara). This school needed financial support. The sacrifices offered to nobles (devas, wrongly interpreted as gods) were meant to support such groups as satraswho aided the late Vedic state headed by the nobles to ensure the security of the property and lives of the commoners and those who had taken asylum under these nobles. The nobles, devas, did not need these offerings, dakshina, for their own maintenance. A correct appreciation of the early post-Vedic social polity is necessary for a proper interpretation of the verses of Manusmrti. Such correct appraisal will aid us to draw a correct outline of the polity of the later Vedic period also.
Buhler translates the next verse (8-304) as: A king (raja) who (duly) protects (his subjects) receives from each and all the sixth part of their spiritual merit (dharma); if he does not protect (arakshata) them, the sixth part of their demerit (adharma) also. Jones read it as: A sixth part of the reward for virtuous deeds performed by the whole people, belongs to the king; but if he protects them not, a sixth part of their iniquity lights on him.
Jha translated it as: To the king who protects (his people) accrues the sixth part of the spiritual merit of all persons; and the sixth of their demerit also accrues to him if he protects them not. Burnell interprets this verse as: In consequence of the protection afforded by him, the king has a sixth share of the virtue (which comes) from all (the good deeds of his people), while in consequence of failing to protect them he receives a sixth share of the wrong (done by them).
One sixth of the agricultural produce was to be paid to the king as tax in return for the protection to life and property guaranteed by him. Even the dwellers of the forest were to pay taxes at this rate, however little their incomes were. The implications of this contract between the people and the king were propagated among the former by the'satris. This contract was introduced by the Vaivasvata constitution. (Vide Chapter on Vaivasvata Constitution in my dissertation, Foundations of Hindu Economic State based on Kautilyan Arthasastra.)
Here it is being put across as a moral and socio-religious responsibility of the king to protect the lawful earnings of the people in return for the receipt of one sixth of the produce as fees(dakshina). [But the king cannot refuse to protect the lives of those who do not pay the fees.]
When he recovers the stolen property from the thieves, he would be entitled to take one sixth of it as charges towards the labour and expenses incurred by the state. The commentators of the medieval times were not aware of the provisions of the Vaivasvata constitution that struck down the erstwhile practice of bali, undefined quantum of sacrificial offerings that the king received or forcibly collected from his subjects, and replaced it by kara, a fixed rate of tax.
No other fees were to be collected for protection of lives and property of the peoples of the expanded state, paurajanapada. This was put across to the people by the satris who participated in simulated debates for obtaining consent of the urban and rural assemblies of representatives, paura and janapada to the new system, as explained by Kautilyan Arthasastra. The first editors of Manusmrti too might not have been fully aware of this system.
Jha translates the next verse (8-305) as: When one reads (adhita) the Veda, when one performs a sacrifice (yajata), when one makes gifts (dadata), when one worships (archati), to the sixth part of each of those the king (raja) becomes entitled, in consequence of properly protecting (raksha) the people. Buhler read it as: Whatever (merit a man gains by) reading the Veda, by sacrificing, by charitable gifts, (or by) worshipping (gurus and gods),
Modern commentators have been obsessed with the concept of sacrifices (yajnas) and study of Vedas and have missed several significant notes. the king obtains a sixth part of that in consequence of his duly protecting (the kingdom). Burnell read it as: In consequence of the protection (afforded by him), the king properly becomes partaker of a sixth share in (all) that (merit which is gained by the) study, sacrifice, liberality, or worship (of his people).
This verse calls for surrender of one sixth of the expenses set aside for socio-religious activities to the king as fees for protection accorded to those activities. Manusmrti tries to merge the implications of the Vedic practice of sacrifice, yajna, with those of the new scheme of tax (kara). The former called for surrender of one-fourth of the total earnings for the maintenance of the three non-economic cadres (devas, rshis and pitaras, nobles, sages and elders). The rest could be spent equally for the pursuit of dharma (inclusive of education), artha (economic needs of the family) and kama (sexual pleasure).
The Vedic times witnessed the householder spending one-fourth of his earnings on his expenses on account, each, of dharma, artha and kama, three of the four valued pursuits of man, purusharthas, and one quarter on sacrifices, yajnas. Even gifts to the needy besides promoting education were covered by expenditure on dharma,
As Usanass political theory came into force, yajna, was replaced by the concepts of svajana, yasa and bali. The individual was required to spend one sixth of his income on each of the three heads, dharma, artha and kama. He was permitted to spend one-sixth on his children, parents and other dependents, under the head, svajana. He invested one-sixth in his new enterprises (yasa) and had to pay one-sixth as tribute (bali) to the king. But in practice the state set up by Usanas left the individual with only one third of his income under the heads, artha and kama, and appropriated the rest assuring him and his family security.
Vaivasvata replaced bali by kara. This was accepted by the Prthu constitution. Manusmrti suggests that of the expenses incurred on education, sacrificial rites, gifts, and offerings to the teachers, priests and elders, one sixth be assigned to the state in return for the protection accorded to these socio-religious duties. This would be in addition to the tax of one-sixth of the produce paid as tax for ensuring protection of life and property. Both the commoners of the agro-pastoral economy and the residents of forests and mountains had accepted this arrangement of protection in return for taxes.
Jha translates the next verse (8-306) as: The king who, according to the law (dharma), protects all creatures (bhutas) and strikes them who deserve to be struck, offers, day by day, sacrifices (yaja) at which hundreds of thousands are given away. But there were individuals, bhutas, in the social periphery who did not belong to either of these two organized societies (the agrarian and the frontier).
Manusmrti extended the social law, dharma, propounded by it to them also. The king became entitled to strike those among these individuals who were thieves and to protect those who were honest. They were not required to pay any portion of their earnings as tax in return. At the daily sacrifices performed by him, the king distributed among these individuals as fees (dakshina) for being present and guarding them against the thieves.
The king spent huge amounts on this unorganized sector of the society in order to keep its individuals (bhutas) away from theft as a means of livelihood. This aspect was lost sight of by later commentators. What was paid as protection money was not to be appropriated by the king. It was to be distributed among the individuals of the unorganized sector of the social periphery to keep at bay the thieves and to win over the good among those individuals.
The king (parthiva) who without affording protection, takes tributes (bali), taxes (kara), duties (sulka), presents or discounts (pratibhaga) and fines (danda), would immediately sink into hell (naraka). (8-307) This warning is given to the ruler of the agrarian terrain who followed the Prthu constitution that was modelled on the Vaivasvata constitution. The delinquent agrarian chief, parthiva, would be declared as belonging to the lowest cadre of the free men, naras, and sent at once to the ghetto, naraka, it was warned.
Jha translates the verse (8-308) as: He who affords no protection and devours the people, grabbing his tribute of the sixth part of the produce, him they declare to be the imbiber of the filth of the whole people (sarva loka). The liberal nobles of the Vedic period were satisfied with what was given to them by the commoners as voluntary sacrifice (yajna). They did not collect either levy (bali) or tax (kara). The one-sixth portion of the produce, which the feudal lord (asura) took by force as bali from the peoples of the social worlds (sarva loka), is described, as but their excreta. Manusmrti has only contempt for such rulers. It however restrains itself from calling for revolt against them.
He who heeds not the bounds (maryada) of morality, who is a disbeliever (nastika), who is extortionate (lumpaka, avaricious like a fallen scholar, vipra), who does not afford protection (arakshita), and is grabbing, such a king (nrpa) one should regard as doomed to perdition (adhogati). (Jha) (8-309)
This is a warning to the civic administrator, nrpa. He would fall to the lowest level if he is rapacious and exceeds the limits of his authority. Some atheists among the free men resorted to these methods. Such administrators must have been guided by avaricious scholars (vipras) who tried to get riches by encouraging the former to collect exorbitant taxes and fines. This is a broadside against the school of Usanas.
Manusmrti advises: He shall carefully suppress the unrighteous (adharmika) by three modes (of restraint), by imprisonment, by chaining and by different types of torture. (8-310) Some of the administrators did not care for the limits of their duty and resorted to extortion. Some others did not exercise their powers. Here the latter are told that instead of concentrating on levying and collecting fines, they may resort to other methods by which the movements of the thieves arechecked. (The nrpa was not empowered to pass death sentence.)
By suppressing (nigraha) the vicious (papa) and fostering (samgraha) the virtuous (sadhu), the administrators (nrpas) become purified (pooyanta), just as the twice-born (dvijati) by their constant sacrifices (yaja) (Jha). Burnell translates this verse as: For, by restraining sinners and by kindly treatment towards good men kings are ever purified, as the twice-born (are) by sacrifices. (8-311)
These administrators (nrpas) did not belong to the three organized classes, Brahmans, Kshatriyas and Vaisyas, who alone were entitled to perform Vedic sacrifices.They (nrpas) were free men (naras) and some of them were atheists but they were not all immoral. They were expected to be gentle and pious (sadhu) and support such pious men who were not involved in economic activities and disputes. These nrpas though not recognized as dvijas, twice born, were to be respected (even as the ordained Kshatriyas and Brahmans were respected). Manusmrti did not demand that all the scholars (and priests) and administrators should be ordained (dvija) Brahmans and Kshatriyas. It however insisted that the vipras and nrpas should be pious.
Jha translates the next verse (8-312) as: The king (prabhu) should always forgive the partisans of the litigants who abuse him, as also the young, the aged and the infirm, thereby accomplishing his own (atmana) welfare (hitam). Burnell translated this verse as: Constantly must the ruler who would make himself happy exercise patience toward men who revile him when they are engaged in affairs; and also toward the young, the old and those who are ill. It is imperative to be precise about the status, power and role of each of the officials of the early post-Vedic social polity.
The prabhu was the head of the society rather than that of the state. He did not exercise coercive power but he exercised positive beneficial influence in favour of the weak and forgave the free men, naras, who were hauled up before the social gathering held to chastise the offenders. These naras were from the lower ranks of the rural bureaucracy and had failed to discharge their duties properly.
This approach worked to his advantage. He who, on being abused by men in distress, forgives (marsha) becomes exalted (mahiyata) among the aristocrats (svarga); while he through pride of wealth (aisvarya) does not forgive goes by that act to the lowest level (naraka, hell in common parlance). (8-313) Whether it was the leader of the society, the larger commonaltyprabhu), or the civil administrator (nrpa) or the king (raja) or a rich ruler (aisvarya) or an ordinary member (nara) of the (free) rural bureaucracy, he is advised to be patient with the distressed who abuses him.
The thief if he is wise will approach the king (raja), with his hair flying, confessing the theft, with the words, I have done this; punish me and carrying on his shoulder a pestle, or a club or a spear sharp at both ends. (8-314,315) He would not seek pardon. Unlike the prabhu, the head of the society, the king, raja was not free to pardon any criminal. The thief could only expect less severe punishment. (It is not sound to translate the term Prabhu ( as God.) Burnell reads the next verse as: By being punished or by being released the thief is freed from the (crime of) theft; but if the king does not punish him, he (himself) receives the crime of theft.
In a significant remark, Manusmrti states that the thief is either punished or acquitted. The thief is absolved of the sin accompanying his act, only by one of these two steps and not by pardon, which is given without trial. By not punishing the guilty thief, the king becomes guilty. (8-316) It is the prabhu who represents the society as a whole who may in the interests of the society pardon the guilty. No interest of the state is served by not punishing the guilty. The later commentators have, instead of dwelling on this crucial distinction between the society that is highly optimistic about the delinquent getting corrected on being forgiven and the state that has no choice but to punish or acquit, spent their time and attention on the immunity claimed by the Brahmans.
Jha translates the next verse as: The embryo-killer expurgates his guilt on him who eats his food, the misbehaving wife on her husband, the disciple and the sacrificer on the preceptor, and the thief on the king.(8-317)
Buhler gives a different translation: The killer of a learned Brahmana throws his guilt on him who eats his food, an adulterous wife on her (negligent) husband, a (sinning) pupil or sacrificer on (their negligent) teacher (or priest), a thief on the king (who pardons him). Jones read it as: The killer of a priest or destroyer of an embryo, casts his guilt on the willing eater of his provisions; an adulterous wife on her negligent husband; a bad scholar and sacrificer on their ignorant preceptor; and a thief on the forgiving prince.
It would appear that the sin accruing from conscious abortion was, it was believed, offset by feeding the poor.The adulterous wife had to be pardoned, as it was the neglect of her husband that had led to her adultery and consequent pregnancy. The two had to feed the poor and get freed from the sin of foeticide. But it was only a transfer of blame and sin. The teachers are responsible for the faults of their students and also of those who perform sacrifices under their directions. Similarly the guilt (kilbisham) passes to the king from the (unpunished) thief.
Jha translates the next verse (8-318) as: Men (manava) who, having committed crimes (papa), have been punished (danda) by kings (raja), become freed from guilt (nirmala) and go to heaven (svarga), just like well-behaved (sukrti) good men (santa). Buhler translated it as: But men who have committed crimes and have been punished by the king, go to heaven, being pure like those who performed meritorious deeds. Burnell reads it as: Those men who have committed sins, but on whom punishment has been inflicted by the king, go to heaven with all their sins removed, as (if they were) worthy men who had acted well.
Manusmrti points out that the manavas who follow the code of conduct as enshrined in it should accept the authority of the king to punish the sinners even among them. These manavas are a trans-regional cadre and are not bound by the codes of clans (kulas) and communities (jatis) or of local areas (desas). As they do not challenge the authority of the king in whose region they are when they happen to commit the offence they are charged with, and accept the punishment, they are respected as pious persons who have done good deeds and become eligible to be absorbed even in the cadre of cultural aristocracy. What they have done is an immoral act. But once punished that offence cannot stand in the way of their elevation to a higher social cadre. It is not a permanent black mark.
When one steals a rope or the water-pot from the well, or damages a water-drinking establishment, he should be punished with a fine of one masha. He should restore the article to the place. (8-319) There shall be corporal punishment (vadha) for one who steals more than ten jars (kumbha) of grain; in other cases, he should be made to pay eleven times as much and make good the property to the owner. (8-320) Of course, it has to be proved that he had stolen them.
In the case of articles weighed by scales, gold, silver etc. if more than a hundred coins or ornaments are stolen, there shall be severe torture; so with theft of fine clothes. (8-321) These thieves were after luxury goods while the earlier ones were after necessities that they could not get.
If they stole more than fifty items, it was recommended that their hands be cut off. In other cases they were fined eleven times the value of the items stolen. (8-322)The rich were not safe from the thieves. Not only the valuable possessions like gems of the rich families but even their men (purushas) and women (naris) were stolen.
These were not members of the noble families but were leaders of their retinues or bold free women who managed the affairs of their households. This was abduction carried out by rivals with intent to have access to the inner apartments of the palace. The thieves and abductors deserved severe torture. (8-323) The state had a duty to the commoners and also to the nobles. But those who harmed the rich (as it has been everywhere and during all times) had to suffer severe physical torture. [The poor victim rarely got redress and was never avenged.]
For the stealing of large animals, of weapons and medicines, the king (raja) shall determine the punishment after considering the time and the purpose. (8-324) These might have been stolen from his palace and garrison or from the houses of the rich. For stealing cows belonging to a Brahman and for piercing the bulls with goad (while trying to take them away) and for stealing (other) animals, the legs of the thief should be immediately maimed. (8-325). [This verse must have been a later interpolation made to please Brahmans.]
For stealing yarns, cotton, drugs causing fermentation, cow-dung, molasses, curd, milk, skimmed curd, water, grass, vessels made of bamboo or cane, salts of different kinds, earthenware, earth, ashes, fish, birds, oil, ghee, meat, honey, and other animal-products, or similar things, liquor, cooked rice, all kinds of cooked food, the fine shall be double the value of the thing stolen. (8-326 to 329) These were petty thieves and the losers too belonged to the lower middle classes and resided outside the village proper. It was impossible to get the stolen articles restored to the owners.
States have always been solicitous of the rich and have given little attention to the losses of the poor. The poor too fed on the poor and they dared not to steal from the rich. For stealing flowers, green corn, shrubs, creepers, trees and coarse grain the fine was five copper coins, krshnalas. For husked grains, vegetables, roots and fruits, the fine was 100 panas; if the thief was not an employee of the loser, the fine was 50 panas. (8-330,331) The petty thieves were however not tortured.
The verse (8-332) defines robbery (sahasa) as an act committed with violence and in the presence of men and theft (stena) as one done in the absence of men and when it is denied after having been done. If a man (nara) steals cooked vegetables, rice etc. the king (raja) should fine him one hundred panas; as also him who steals the fire (agni) from the house. (8-333)
The householder has been denied the use of what he and the members of his family have prepared for quenching their hunger and has been denied the possibility of preparing it again. The free man, nara, who has walked out of his family is seen to be more eager to cause agony to the victim than to meet his own needs.
The medieval commentators are seen to be more interested in giving this act of theft a religious colour by claiming that the term, agni, referred to the sacrificial fire lit in the house. It is likely that the man who has committed this offence did so to punish the other members of his household for having kept him out of the partaking of that food and for having denied him the right to tend the domestic fire.
The commoners, manushyas, accepted the verdict of the head of the family who tended it and had the right to play the role of the official, agni, civil judge with respect to his large household. The act of this nara was a spurning of his authority and right to enforce domestic discipline. It was more than theft to meet ones personal needs.
If the thief (stena) used violence against free men (nrs) like beating or kicking, the ruler of the agrarian terrain (parthiva, who follows the provisions of the Prthu constitution) shall cut off that limb with which he hit others, as reprisal. (8-334) This is neither retribution nor prevention of repetition of that offence.
Here the free man, nara, is the victim and his clan does not aid him; he has to be supported by the government. If such a free man, nara, has been harmed by his father or teacher or friend or by his mother or wife or son or by the priest (while he is taking away from his house what he claims as his share), these persons can not be punished by the king (raja) as it is a domestic affair. But the king may invoke the provisions under the code of svadharma, the right of the individual to guard his own interests, and get these members of his family punished. (8-335) Both medieval and modern commentators have missed this point.
Buhler translates the next verse (8-336) as: When another common man would be fined one karshapana, the king shall be fined one thousand; that is the settled rule. Jha too translates it so. Jones read it as: Where another man of lower birth would be fined one pana, the king shall be fined a thousand, and he shall give the fine to the priests or cast it into the river; this is a sacred rule. Who would dare to collect the fine from a king who has used violence to appropriate another mans property? Only the priest (Rajapurohita) could have collected the fine from a guilty king (raja).
In the Rajarshi constitution introduced by Samkara, a socio-political thinker, the Rajapurohita was an intellectual who ranked superior to the Rajarshi, the head of the state and was the guardian of the constitution. In the Atharvan constitution, the official designated as Varuna held this post. Their roles were forgotten during the passage of time. [Varuna was not the god of waters. Purohita did not refer to ordinary Brahman priest.]
Those who belonged to the other society of the forests and mountains (anyajana) and who were not civilized (prakrta) were to be let off with a small fine of one pana for resorting to robbery. This was the stand (dharana) of Dharmasastra.
The later editors of Manusmrti could not resist the temptation to reiterate the rules of varna hierarchy and the attendant privileges of the Brahmans. Even as they had privileges, they had onerous duties and if they committed crimes they were liable to be punished very severely. A Shudra who resorted to robbery but unknowingly harmed another during that act was fined 8 panas, a Vaisya 16 panas, a Kshatriya 32 panas and a Brahman 64 panas or 100 panas. If he used violence deliberately he was fined double that. [So too, others guilty of deliberate violence must have been fined double the above rate.] (8-337,338).
Some commentators tried to protect the guilty Brahmans and held that this injunction was not to be taken literally. They invoked the name of Manu for this purpose. The taking of fuel for fire and trees, roots and fruits and grass for feeding cows has been declared by Manu as no theft. (8-339) This is a later interpolation.
Is robbing a robber just? Many have become rich by questionable means and yet are honoured in the society. Manusmrti cautions the Brahmans that if they sought to obtain wealth by conducting sacrifices for and by teaching such persons who had taken what had not been given to them they would be like thieves. If a Brahman was found in possession of stolen wealth, though he might have received it as fees for his role as a priest or as a teacher, he could be hauled up on charges of theft [and if it was wealth robbed, on charges of robbery]. (8-340) Of course the punishment for theft should not be inflicted without taking into consideration the countervailing circumstances.
If while on a journey, one ran short of provisions and took two sugarcane stalks or two roots from another mans field, he should not be fined. But this exemption was given only if the offender belonged to the classes of the twice born. This clause with a note of discrimination against the Shudras is obviously a later interpolation. Law did not and could not have visualized such unjust discrimination. (8-341)
Not all thieves and robbers belonged to the lower ranks of the society. Those who belonged to higher classes might have only desired to weaken their enemies and rivals economically. They too were to be punished under the rules pertaining to theft. One who chains the unchained or frees the chained (animal) or takes away a servant (dasa) or a horse or a chariot incurs the guilt of a thief.(8-342) By punishing thieves in accordance with this rule (vidhi) the king obtains fame in this social world (loka) and unsurpassed bliss after death. He brings even the defiant to book. (8-343)
The king (raja) who is desirous of rising in socio-political status (yasa) and becoming an Indra, the protector of the nobles and scourge of the feudal chiefs who snatched the wealth of others, and obtaining imperishable (akshaya) fame shall not ignore even for a moment the desperado, the free man (nara) who is a robber (sahasi). (8-344)
The king had to punish such naras (who were not under domestic discipline) whom the nrpati failed to punish. Burnell translated this verse as: The king who longs to reach the home (status, sthanam) of Indra, and (his) eternal, never-dying glory should not for one moment neglect a man who commits violence.
He has to be always on the alert against these violent robbers who are not amenable to social discipline. The free man (nara) who commits robbery accompanied by violence (sahasa) is to be regarded as the worst offender, as compared to one who is wicked of speech (vakdushta), to a brigand (taskar) or to one who causes pain (himsa) with a stick (danda). (8-345)
The ruler of the agro-pastoral terrain (parthiva) who suffers patiently (marsha) the presence and activities (vartamana) of the robbers (sahasi) soon falls into destruction (vinasam) and incurs dislike (dvesham).(8-346)
The parthiva is subordinate to the king (raja). The latter has jurisdiction over the social periphery, the nobility, the feudal chieftains and the frontier society of the forests and mountains also besides over the agro-pastoral areas. The former had jurisdiction only over the rural areas.
Even though these brigands are his friends and help him to get huge wealth, the king should not let loose (samutsrja) these robbers (sahasika) (booked by the parthiva) who cause terror (bhaya) to all the unorganized individuals (sarva bhuta) (of the social periphery). (8-347) Burnell reads it as: Neither for the sake of friendship nor for the sake of vast increase in wealth should a king set free those who commit acts of violence, (since) they subject all creatures to violence.
The civil society had been disarmed and only the Kshatriyas, soldiers had been permitted to bear arms and that too during training and during war. This policy had exposed it to attacks by these robbers.
Manusmrti lifts the ban and permits the communities belonging to the twice-born classes (dvijatis) to bear arms under certain circumstances. [Only the workers (Shudras) were prohibited from carrying weapons even in self-defence.] They could bear arms when pursuit of activities prescribed under dharma was obstructed (uparudhyata). If because of exigencies of time, the twice-born communities (dvijatis) and classes (varna) were about to be destroyed (viplava) they could bear arms. (8-348) The main issue was whether a Brahman could wield weapons.
Burnell translates the next verse as: And in self-defence, in a struggle for gifts, and when peril threatens a woman or a Brahman, he who (thus) kills a man in a just cause does no wrong. This permission is given to members of all the three varnas, which are known as twice-born communities.
Manusmrti permits a dvija (twice-born) to do so in self-defence, if attacked while taking his fees (dakshina) or dining with others (samgara). If he takes up arms in the cause of dharma, when housewives (stri) or scholars (vipras) are harassed, he does not incur sin.(8-349) The permission and the conditions are clear. The debates entered into on these by some scholars are unnecessary. The civil society has to remain disarmed. Only in self-defence and for protecting the helpless one may use a weapon.
Buhler translates the next verse (8-350) as: One may slay without hesitation an assassin who approaches (with murderous intent), whether (he be ones) teacher, a child or an aged man, or a Brahman deeply versed in the Vedas. Jha translates it as: Without hesitation (avicharaya) one should strike an approaching desperado (atatayina), be he a preceptor (guru), a child (bala) or an aged man (vrddha) or a highly learned (bahusruta) Brahman. This verse tries to answer the doubts raised about some of the combats that took place during the battle of Kurukshetra. No evil of any kind accrues to one who slays (in self-defence) a desperado, either openly (prakasha) or covertly (aprakasha); as it is only fury (manyu) recoiling on fury. (8-351)
(8-352 to 385)
The ruler of the rural areas (mahipati) shall banish (pravasaya) those (undisciplined) free men (nrs) who are habituated (pravrtta) to molest (abhimarsha) the wives of others. They should be branded with terror-evoking punishment. (8-352) These offenders were not under the social discipline of their clans and communities. The naras (nrs) were the lower ranks of the erstwhile cadres of Gandharvas who were noted for their romantic adventures and who could charm even married women with accounts of these. But the organized agrarian society was not prepared to tolerate the advances of these men, naras, to married women.
For out of that (physical contact) arises the mixture of classes (varnasamkara) among the social world (loka) (of commonalty attached to the earth, mahi, bhumi, prthvi). From that follows unrighteousness (adharma) that destroys the roots (mula) (of the family), tending to destruction of all (customs and regulations). (8-353) The free men, naras, did not belong to any clan or community and were individuals who could marry only the free women, naris. The latter were spinsters but were not necessarily virgins.
If the sanctity of the marriage as present among the commoners, manushyas, were destroyed it would lead to the emergence of varnasamkara, mixture of social classes and the collapse of the social system based on four classes, varnas. Hence this delinquent nara is warned of dire consequences and banished from the rural areas. Manusmrti was for intra-community and inter-clan marriages.
The term, purusha, indicates a dynamic person who provides social leadership. Even married women might become victims to suchpurushas. If such a person after once warned is found to be engaged in conversation with the wife of another person he is liable to be awarded the first amercement for sahasa, robbery, accompanied by violence. The purusha was not under the discipline of the family or the clan. On the other hand the family had to function under his leadership. Manliness might lead him to take liberties with the wives of other persons. (8-354)
However if he has not been previously charged and converses with her for a good reason, he does not incur any guilt; as in his case there has been no transgression (vyatikrama). (8-355) It is presumed that he has not tried to converse with her secretly. Manusmrti is not irrational and unreasonable.
But he who converses with the wife of another person (parastri) at a training or holy centre, tirtha, or in a wilderness or in a forest or at the confluence of rivers (whether alone or in the presence of another) he incurs the guilt of having allured (samgrahana) her. It is not sound to interpret this term as implying adultery. (8-356) He might salute her but not address or speak to her in a way that would imply his taking liberty with her. Offering help, flirting, touching of ornaments and clothes, sitting on the same cot with her are all declared to be allurement, samgrahana. (8-357)
If one touches a lady (stri) in an improper place or condones it when touched by her, all this, when done with mutual consent, has been declared to be allurement, samgrahana. (8-358)
It would appear that the next verse (8-359) is a later interpolation effected by editors who failed to take into account the tenor of the discourse. Jha translates it as: In a case of adultery, a non-Brahman deserves the penalty ending in death; as the wives of all the four castes (varnas) are always the most deserving of protection. [A Brahman could be given any punishment except death sentence.]
Buhler reads it as: A man who is not a Brahmana ought to suffer death for adultery (samgrahana); for the wives of all the four castes even must always be carefully guarded (rakshyatama). Burnell read it as: One who is not a Brahman deserves capital punishment for committing adultery. The wives of all the four castes must always be most carefully guarded. A Brahman could not be awarded death sentence for any guilt. Jones translated it as: A man of the servile class, who commits actual adultery with the wife of a priest, ought to suffer death; the wives, indeed of all the four classes must ever be especially guarded.
It is wrong to interpret the term, abrahmana, as meaning a Shudra or a Dasa or a member of a servile class. Any man guilty of adultery risked being put to death to whichever class or rank the woman who was his victim belonged. The guilty Brahman escaped death sentence because no Brahman or woman or child or cow could be killed. Samgrahana here meant rape of a married woman and not mere allurement or intercourse during courting.
The debates entered into by commentators of medieval times on this verse appear to be diversionary and at times silly. They have not been able to deal with the core issue that in adultery both the married woman and her paramour are guilty. Since it was the duty of the husband to protect the chastity of his wife, the delinquent wife could not be punished under civil law.
Returning to the tenor of the discourse, Manusmrti says that mendicants, bards, men who are initiated for a rite (dikshita) and artisans may converse with married women unchecked. (8-360) Let no one converse with the wife of another (parastri) after he has been forbidden to do so; but he who converses (with her) in spite of a prohibition shall be fined one suvarna, a gold coin. [Only the king (raja) could collect fines in gold.] (8-361)
This rule does not apply to the cases of the wives (dara) of dancers and singers (charanas) or of those who make a living of themselves; for these men secretly bring their women (nari) into contact (with other men) and tempt them on. [The charanas, scouts in the secret service of the ruler, were required to avail of the services of even their spouses to find out the intents of the suspects.]
Jones translated the verse (8-362) as: These laws relate not to the wives of public dancers and singers, or of such base men, as live by the intrigues of their wives; men who carry their women to others, or lying concealed at home permit them to hold a culpable intercourse. Burnell read it as: This rule is not for the wives of the strolling players, not for those who support themselves, for these men prostitute (their own) wives, and, keeping out of sight (themselves), let their wives go astray.
The men who are tempted by women who are no better than prostitutes should not be punished. Yet he who secretly carries on conversation with these women or with female messengers (preshyas) devoted to one master (ekabhakta) or with nuns (pravrajita) should be made to pay a token fine. (Jha) (8-363) Burnell is imprecise when he translates this verse as: But a man who starts a conversation in secret with these women, with servant girls who have one master, or with wandering women, should be fined merely some (small) fine.
A lover who violates an unwilling virgin is liable to immediate corporal punishment; but a lover who enjoys a willing maiden shall not suffer corporal punishment. Of course the two are to be of equal status. (8-364)From a maiden who makes advances to a man of higher status no fine is to be taken; but if she courts a man of lower status, she shall be forced to live confined to her house. (8-365) There is no suggestion that she should be kept in chains.
Marriages between men and women of the same socio-economic status were the norm. And similarly Gandharva marriages that implied marriage with mutual consent between the boy and the girl and even willing pre-marital relations were the norm. But girls often sought spouses who belonged to higher socio-economic status. This was disapproved. Their yielding to men of lower status was condemned. In other words, anuloma marriages were disapproved while pratiloma marriages were condemned.
A man of a lower status who courts a maiden of a higher rank deserves to be tortured; he who courts a maiden of equal status may pay her the bride-money, sulka, if her father desires it. (8-366) The demand for bride-money alters the character of the marriage from that of a Gandharva marriage to that of an Asura marriage where the father claimed the daughter to be his property and that he had the right to sell her.
The manavas who followed Manava Dharmasastra did not accept the authority of the girls father to demand kanya-sulka, bride-money. This social code debarred Asura marriage but threw open Gandharva marriage to all classes. The manavas who accepted the codes of social classes, varnas, in preference to those of clans and communities and regions, claimed that it was the groom who was entitled to determine the form of marriage provided the girl consented to marry him. Themanava is warned not to defile the virgin he seeks to marry by even touching her.
If any man (manava) wantonly defiles a maiden through sheer audacity, two of his fingers shall be cut away instantly or he should be fined 600 panas. (8-367) The use of the term, manava, in this verse is significant. The above penalty was imposed only on a manava who as a member of one of the four basic varnas, had undertaken to follow Manava Dharmasastra but had deviated from the condition that he might adopt any of the four types of dharma marriages, Brahma, Daiva, Arsha and Prajapatya or might resort to Gandharva marriage with a Nari (spinster and free woman) but not to the Asura, Rakshasa and Paisaca types of marriage.
Among the commoners, manushyas, inter-clan marriage was the norm. But the clans must be from the same native community (jati). These marriages were mostly ones arranged by the elders. But the manavas were individuals whose families were not acquainted with one another and often belonged to different regions though they might have belonged to the same class (varna). They were warned against taking liberties with the maidens whom they wooed. [These fine distinctions have to be borne in mind to arrive at an objective assessment of Manusmrti as socio-political constitution outlined during the final stage of the Vedic era and fine-tuned soon after.]
If the girls parents were incensed and cut off the fingers of that manava (who was a stranger though eligible to marry her), the court would not intervene for though he was not bound by the codes of any clan the girl was not so free. He had to respect the codes of other clans. If she too belonged to a social class that had no commitment to any clan or community, the case could be taken to the court and if found guilty he would be fined 600 panas, which was more than the middle amercement prescribed for robbery (sahasa). His conduct amounted to Rakshasa marriage, daring others to stop him from taking her away.
A man of equal status defiling a willing maiden shall not suffer amputation of his fingers; he should be made to pay the fine of 200 panas with a view to prevent repetition. The parents and relatives should not harm her claimant. Of course he should wait for the completion of the marriage before having sex with her. Pre-marital sex even if the girl had consented to it was not approved by most families. The claimant was liable to pay the first amercement as a deterrent. (8-368) The editors of Manusmrti respected the sentiments and views of all families.
The ban on pre-marital sex between consenting adults and the anxiety of the girls parents to protect her from getting defiled was not successful. Girls, who could no longer wait to experience the piercing of the hymen, resorted to lesbian relations. If a maiden (kanya) pollutes another maiden, her fine shall be 200 panas; she shall also pay the double of her nuptial fee and shall receive ten lashes. (8-369)
This was a deterrent measure to prevent a girl from ruining the chances of another getting married to a respectable groom. But if a married woman (stri) pollutes a maiden (kanya) she deserves immediate shaving off, or the amputation of two fingers and also being paraded on a donkey. (8-370) The clans had their own ways to enforce social discipline and punish the guilty and deter others.
If a married woman (stri), proud of her kinsmen (jnatis) and her accomplishments (guna) ignores her husband and goes to her paramour, the king (raja) shall throw her to dogs in a place frequented by many. She was treated as a bitch. Only the King could take such a gruesome step, and not the junior officials like the nrpati, parthiva and prthvipati. The clansmen of her husband could not give this punishment, as her kinsmen were powerful. He could only complain to the king about the injustice done to him (8-371).
He should make the adulterer lie on a red-hot iron bed; they shall heap wooden logs over him so that the sinner was burnt. (8-372) It is presumed that the paramour mentioned above was the younger brother of the cuckold. If this deterrent measure did not succeed and the guilty paramour is accused again within a year, he shall be punished with double the fine. He will be levied 2000 panas as fine. The same would be the fine on a person who had intercourse with a woman who for adultery had been pronounced a Vratya or a Chandali. (8-373)
A woman who had intercourse with several men was cast out of her clan and community and pronounced to be aVratya and denied all religious rites. Nuns (whether widows or spinsters) who were suspected of having illicit relations with men were condemned as Vratyas. Similarly ascetics who broke the vow of celibacy were treated as Vratyas. Most of the women who were thus outcast belonged to Brahman families of the period of decadence. They had failed to observe rigorous abstention from unauthorized sex.
If the paramour had intercourse with the widow of his brother, she was cast away from the clan and he was penalized 2000 panas. If the paramour happened to be a domestic servant, Shudra, and she was a Brahman, she was pronounced to be a Chandali. On repetition of his offence, the Shudra was penalized 2000 panas. The adulteress was forced to suffer gang rape or was outcast and thereafter suffered such gang rape. The adulterer was tortured or made to pay a very high fine.
The term, Vratyas, in fact referred to persons who had given up all worldly activities. These persons had not accepted the varnashrama system but were noted for their high sense of morality and ethics. However those who had not gone through the stage of 'upanayana', the rites preparatory to the stage of education were described and decried as Vratyas. Similarly men and women who lived together without formal marriage were described as Vratyas. The organized society was annoyed with their impudence and could only keep them out of social contacts. The king too kept them out of his realm.
Jha translates the next verse as: A Shudra having intercourse with a twice-born woman, protected or unprotected, shall be deprived of his limb and his whole property, in the case of the unprotected woman, and of everything in that of the protected. (8-374) Buhler translates it as: A Shudra who has intercourse with a woman of a twice-born caste (varna), guarded or unguarded (shall be punished in the following manner): if she was unguarded, he loses the part (offending) and all his property; if she was guarded, everything (even his life).
The later editors of Manusmrti were obsessed with the concept of varna hierarchy as a whole. The earlier ones were concerned only with the distinction between the communities that were initiated as twice-born, dvijatis, and those that were not so initiated and between the individuals who were so initiated, dvijas, and those who were not so initiated. The latter were either Shudras who were poor and were uneducated works or Vratyas who refused to be initiated.
The clans who were included in the dvijatis, twice-born communities and assigned to one of the three higher varnas had Shudras working as servants in their households. The girls and women of the higher families needed special protection. Some of the servants were assigned the job of protecting them.
If any of these servants exceeded his limits and had intercourse with one of these women who were not free to move about at their pleasure, he risked being put to death and all his wealth attached by the state. Some of these women were free to move about. They could protect themselves. If a servant dared to have intercourse with such a woman without her consent or even with her consent, he was liable to be maimed and deprived of his property.
If the adulterer was a Vaisya he was to be imprisoned for one year and his property attached. This would refer to the case where he dared to have intercourse with a woman who was too weak to protect herself and needed protection and was placed under his protection. It is not sound to interpret that this rule pertained to a Vaisya who dared to have intercourse with a Kshatriya or a Brahmana and not with a Vaisya woman.
If the adulterer was a Kshatriya he was penalized 1000 panas and humiliated with his hair shaved with the urine of an ass.(8-375) If the Vaisya had intercourse with an unprotected Brahman woman, he was fined 500 panas. If the parthiva, rural administrator, a deemed Kshatriya, had such relation, he was penalized 1000 panas. The latter had to suffer more, as it was his duty to protect unguarded women. (8-376)
The king could not be sure that the unprotected Brahman woman was forced to have intercourse with the rich Vaisya. She might have been lured by his wealth. But in the case of a Kshatriya she might have been afraid to refuse his advances. But both these, when offending against a protected Brahmana woman, should be punished like a Shudra or burnt in a fire of dry grass.(8-377) This must have been the demand of the desperate Brahmans who could not ensure the safety of their daughters, wives and mothers who were afraid to move beyond the precincts of their houses.
The Brahmana who has intercourse with a protected Brahmana woman by force should be fined 1000 panas; he who has connection with a willing one should be fined 500 panas. (8-378) The Brahman could not be put to death and could not be given corporal punishment. He had little property and even these fines were fairly heavy for him besides being a humiliation in court. If he was found guilty of intercourse with other women, he could be prescribed tonsure instead of being beheaded. (8-379)
The ruler is asked not to kill the Brahman, even though he was steeped in every type of crime. Instead he may be banished from the country, that is, from the rural hinterland (rashtra) with all his property and unhurt.(8-380) In this world there is no greater crime than slaying a Brahman. Hence the king should not think of the death of the Brahman. (8-381) As this was only discrimination in favour of Brahmans his offence may be condoned but he cannot uphold any claim of the Brahman to personally inflict injury to members of other classes with impunity.
If a Vaisya approaches a protected Kshatriya woman or a Kshatriya approaches a protected Vaisya woman, he deserves a punishment equal to that in the case of approaching an unprotected Brahman woman that is 500 or 1000 panas. The Brahmana having intercourse with a protected Vaisya or Kshatriya woman is fined 1000 panas. The Kshatriya or Vaisya who approaches a protected Shudra woman is fined 1000 panas. If a Vaisya approaches an unprotected Kshatriya woman he is fined 500 panas; if a Kshatriya approaches an unprotected Vaisya woman he shall pay a fine of 500 panas or get his head tonsured. A Brahmana who approaches an unprotected Vaisya or Kshatriya woman is fined 500 panas, and for approaching an unprotected woman of a lower class the fine is 1000 panas. (8-382 to 385)
Class distinction and discrimination were present but the editors tried to give it a rationale though it has never been convincing. There was no blanket permission for the higher classes to exploit the lower classes and take advantage of their women with impunity. There was punishment for every act of violation of the modesty and chastity of women though those violators who belonged to the higher classes were given less rigorous punishment than those who belonged to the lower classes were. Such discrimination came to the fore during the later medieval period of decadence though such iniquity is the bane of all societies, ancient or medieval or modern. Scales of justice have always and everywhere been tilted to favour the higher classes.
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