In the present paper, I intend to explore the social construction of the punishment-penance binary in early India, and its implications in understanding how law interacted with two important social categories of gender and caste in those times. This study is strongly based on the assertion that ‘law is the outcome of the socio-economic conditions of a particular country and the expression of its intellectual capacity for dealing with these conditions.’ Law in early India was much wider in concept than today, as it also covered the fields of morality and enforcement of duty. The corresponding Sanskrit term dharma, derived from the root dhṛ, encompasses law, ethics, religion, duty, social obligations, and justice within its wide semantic spectrum. Kane defines it as ‘the privileges, duties and obligations of a man, his standard of conduct as a member of Aryan community, as a member of one of the castes, as a person in a particular stage in life.’ It is in this context, therefore, that I think it proper to categorize the Dharmaśāstric literature as “ethico-legal” in nature, where the ethical and legal aspects are entangled together in such a manner that it gets difficult to view them as separate entities. This ethico-legal nature is further exemplified in their discussion of penance and punishment, where the two are seen as interacting and sometimes overlapping categories. My aim here is to account for this relation, by seeing it in connection with the maintenance of gender and caste hierarchy.
This study is based on a critical reading of what are popularly known as the ‘staple texts of historians of early India,’ i.e., texts belonging to the dharmaśāstric corpus of literature, namely, the four extant Dharmasūtras of Āpastamba, Baudhāyana, Vasiṣṭha and Gautama and the Mānava Dharmaśāstra. The age and authorship of these normative and instructional texts is a matter of intense debate among historians, with some even raising concerns over their very use for historical reconstruction, given the anonymity behind their authorship and the biases they reflect. However, a mere dismissal of their norms as regressive and biased takes away a valuable source of understanding history and the authoritative or widely circulated opinions on diverse matters in early India. Although composed by and addressed primarily to a Brāhmaṇa male, they propose beliefs, principles, and ideals for males and females of other castes too, sometimes in relation to and at other times even independently of the Brāhmaṇa male. Moreover, the śāstras are also a valuable source of history because of their flexible nature, responding to the changing needs of society.
The composition of texts used for the present analysis extends over a large span of time, roughly from sixth century BCE to the first or second century CE. Historically, this was a period of significant changes in the entire socio-political and economic set up of the Indian subcontinent, with the growth of more complex political organisations in the form of kingdoms and the emergence of towns and cities in the Indo-gangetic plain, also the probable site of the composition of the early dharmaśāstras. All these changes had far reaching implications as they led to the emergence of new socio-economic divisions, preparing the ground for a fresh body of literature which explicitly lays down the rights, duties, and privileges of the various sections in society, in turn legitimizing the hierarchy.
The dharmaśāstras have extensively attracted the attention of numerous eminent scholars over the past few decades, ranging from the orientalists to nationalists, administrators to professors of legal history, anthropologists to historians, and indologists to Sanskritists. The several smṛtis and their commentaries have been primarily used as source material by almost all these writers to understand and elaborate upon the various facets of Indian law, past and present. The literature on this subject is so wide ranging that a detailed analysis of it is beyond the scope of this study. I will therefore focus on a few prominent works dealing with the ancient Indian conception of crime-punishment and sin-penance binary, the theme of my own paper.
Scholars like P.V. Kane, Ram Mohan Das, Sukla Das, R.P. Dasgupta, Haripada Chakraborti, and others have undertaken a fairly detailed analysis of crime and punishment in early India. One common thing in almost all these writings is that they emphasize the dynamic role played by varṇa or caste in the determination of crime and the severity of punishment. However, there are also several other factors which played a crucial role here as the composers of these texts advise the King to take into account variables like the learning of the offender and the victim, his/her mental condition, age, sex, physical condition, social status, the time and place where the crime occurred, and its frequency. More so, while determining punishments for sexual crimes, the central analytical axis of my argument, both the caste and gender of the offender and victim is taken into consideration, as this analysis will further reveal.
Recently, Olivelle in his thought-provoking article, “Penance and Punishment: Marking the Body in Criminal Law and Social Ideology of Ancient India,” has argued that the twin systems of penance and punishment as found in the Dharmaśāstras target the body of the criminal, marking it in ways similar to the marking of the body by the rebirth process within the ideology of karmic retribution. Thus in turn, seeing the entire justice system as anchored in the working of cosmic law and therefore beyond the contingency of human laws, norms, and judgements. My own analysis, however, diverts a great deal from this argument, as I picture the tenets of the justice system not to be connected with some divine law alone, but something which is rooted in the very social fabric of the times, further legitimizing the hierarchical ordering of individuals and classes.
Crime-Punishment and Sin-Penance Binary
Crime is defined as the violation of rules and regulations of a particular society. A person who goes against the established norms and behaviour enforced by the State or other authoritative elements within society, is believed to have committed a crime. At the same time, crime is a relative term, as what is considered a crime differs when we move from one region and time period to another. Therefore, it would be correct to say that the concept of crime and theories of punishment are constructed keeping in mind the social, moral, psychological and other needs of the society to which the given laws apply. Deriving from Ahuja’s clear distinction between the legal and social aspects of crime, where from the legal viewpoint, crime is a violation of legal tenets, and from the social viewpoint, it is the motivated deviation from the conduct norms of the instructional groups, here I focus on the norms which defined social conduct as transgression from those amounted to the commission of a criminal activity.
It is inevitable to discuss punishment when we talk about crime, as punishment is the action a society or an ‘appointed individual’ takes against a person who transgresses from a legal tenet or norm. Daṇḍa, the Sanskrit term for punishment, means a stick, staff, or rod, coincidently all symbols of authority and control. Glucklich has depicted that daṇḍa in early India denoted a range of things, ‘from the simple stick to the complex concept of legal punishment.’ Another significant observation made by him is that ‘legal punishment in ancient India possesses positive cosmic virtues’, i.e., the dharma texts boast of the positive impact of punishment on the offender in this world as well as in the next, thereby rendering a transcendental and authoritative nature to it. As Manu explicitly states,
“When men who have committed sins are punished by kings, they go to heaven immaculate, like virtuous men who have done good deeds.” (MDh., 8.318)
The idea of daṇḍa or punishment evolved over a period of time. The early Dharmasūtras contain a long list of crimes against individuals and society at large, but interestingly, these texts do not always impose a strict dividing line between sins and punishable offences. Gautama discusses the origin of the word daṇḍa from damana or restraint, and renders the king responsible of the task to restraint those who deviate. As we move from the sūtras to the śāstras, one witnesses a shift in the conceptualisation of criminal laws and rules of penance, where they are portrayed as increasingly distinct entities. Additional responsibility is added to the shoulders of the King and the State, who now play an active role in the protection of the subjects by punishing those indulging in unlawful activities. Manu addresses the King as daṇḍadhara, one whose duty it was to protect the people and maintain law and order and argues that it was for him that the Lord created his son, punishment. This is again related to the ideals of kingship developing in those times where the ruler was increasingly seen as the protector of the people. The king was in fact advised to direct his maximum effort constantly at the ‘eradication of thorns,’ i.e., the suppression of those indulging in criminal activities as that guaranteed the attainment of the highest heaven for him. (MDh., 9.253) Manu even goes to the extent of anthropomorphizing punishment as the Lord’s son, dark-hued (śyāmo), and red-eyed (lohitākṣo), which comes to the king’s rescue in disciplining and protection of the subjects and is physically inflicted by him after careful examination. Infliction of just punishment was crucial here as it affects the King and the prosperity of his reign as well. Therefore, Manu states that,
‘Punishments can only be administered by someone who is honest and true to his word, who acts in conformity with the Treatises, who has good assistants, and who is wise.’ (MDh., 7.31)
The concept of sin, on the other hand, goes back to the Rig-Veda in the Indian context. In the text it is associated with Varuṇa, the Ādityas, and Āditi, and is seen as a disease which can be banished by spells, water may wash it away and fire burn it away. It is interesting to note that these factors remain an integral part of the prāyaścitta ritual in the śāstras as well. Like a disease, it is external and can therefore be cured. And unlike crime, the commission of a sin is not always intentional on the part of the sinner, and can also be inherited from father or uncle. Taking this conception of sin forward, the composers of the dharma texts put forward the doctrine of prāyaścitta or penance, which by this time is tilted more towards the reformation of an individual, in contrast to the compensation towards society.
The term prāyaścitta has had more than one connotation. Initially used to signify the commission of an act which would obviate any untoward or accidental happening, prāyaścitta was primarily used for expiation or atonement for errors in the performance of sacrifices or rituals. In the Dharmasūtras and Dharmaśāstras, however, prāyaścitta is undertaken for neutralising the consequences of mahāpātakas (mortal sins) and anupātakas (minor sins). A range of moral or ethical wrongdoings are added to the list of acts that require the performance of penance, which by this time is increasingly associated with self-torture or bodily mortification. The performance of penance in the Dharmasūtras and Mānava Dharmaśāstra involves fasting, taking of hot liquids, regulated intake of small quantities of food and other forms of physical austerities, like remaining immersed in water for a whole day or night, or passing the day standing and the night in a sitting posture.
The Dharmasūtras represent an earlier stage where the performance of penance was prescribed for minor sins as well as for grave offences like killing, theft, adultery, etc. From the simple recitation of prayers, sacrificial offerings to the Lord, the giving of cows and gifts as dāna and controlling one’s breath for different durations of time prescribed, there is also mention of some complex penances like the arduous penance, lunar penance, and so on, which lasted for months and days altogether. Manu offers a justification of penance by invoking Vedic evidence which recognizes its performance for a sin committed deliberately and also introduces the element of intent in determining whether a sin can be expiated or not. He discusses four means of expiation in this regard, which are as follows,
‘A sinner is freed from his sin by declaring it publicly, by being contrite, by performing ascetic toil, and by reciting the Veda; during a time of adversity, also by giving gifts.’ (MDh., 11.228)
The performance of a penance signifies voluntary acknowledgement of wrongdoing on the part of the sinner, whereas punishment is something which is inflicted on the criminal after a careful examination of a range of factors by the authorities. Another distinguishing feature between these two doctrines is that a penance is seldom performed in front of a large gathering. Even though the acknowledgement may take a public role sometimes, but the procedure prescribed is like a private, personal journey towards atonement. Penances can therefore be performed even while keeping it a secret from the people. Punishments, on the other hand, were an effective means of deterrence, an exemplary punishment which served as a warning to all others who might be tempted to commit such a crime, thereby inflicted in public spaces in front of large gatherings. The point where both these ideas converge is in their likely benefits, as the texts render them transcendental.
Social Construction of daṇḍa and prāyaścitta:
Having explicated a brief history and development of the doctrines of daṇḍa and prāyaścitta, I would now like to depict how and in what ways they interacted with the two prominent social categories of gender and caste in early India, by focusing upon the rules of penance and punishment with respect to sexual offences. Within the purview of sexual crimes, the dharma texts generally include adultery and sexual assault against both men and women. The authors prescribe punishments for such offences keeping in mind several factors like willingness or unwillingness on the part of the woman, varṇa of both the offender and the victim, civil condition of the woman, her guarded or unguarded status, who initiates the act, and the personal merits of those involved. For sexual misconduct or intercourse with a young woman, Āpastamba orders the banishment and confiscation of the property of a young man, whereas his penis should be cut off along with the testicles if he deliberately indulges in such behavior with another man’s wife. The women, on the other hand, are advised to perform expiation in the presence of their guardians. (Ā.Dh., 26.18-24) Gautama in this regard states that if a Śūdra has sex with an Ārya woman, his penis should be cut off and all his property confiscated, or he shall be executed if the woman had a guardian. (G.Dh., 12.2-3) In case of women, sex with a low-caste man resulted in her fall from caste. (G.Dh., 21.9)
For adultery, the punishment is less severe if a man has sex once with a married woman of his own class, where for each repetition one-quarter of punishment is added. But, an Ārya who has sex with a Śūdra woman should be banished, while a Śūdra who has sex with an Ārya woman should be executed. (Ā.Dh., 27.8-12) Gautama prescribes observing a life of chastity for two years for someone who commits adultery, and increases it to three in case the woman is the wife of a vedic scholar. (G.Dh., 22.29-30) But, if a woman goes against her husband, she should be kept under supervision. The punishment for a woman having sex with a low-caste man is much more severe and public, as Gautama advises the king to have her publicly devoured by dogs and have the man executed, rendering it into a public spectacle. (G.Dh., 23.14-15) Baudhāyana also believes that it is beneficial for women to remain faithful towards their husbands, for they are required to perform the arduous penance if they deviate from this path. The penance also depends on the varṇa of her lover, as it becomes more stringent as we move from a Kśatriya to a Śūdra. Twice-born male offenders of adultery should perform penance for a year, whereas a guilty Śūdra male should be burnt with a straw-fire. (B.Dh., 2.3.47-52) Vasiṣṭha too severely condemns adultery and argues that,
“Women who are devoted to their husbands, vowed to truth and purity, however, attain worlds equal to those of their husbands; those who are unfaithful are born as jackals.” (V.Dh., 21.14)
Manu includes adultery in the category of secondary sins causing loss of caste, and prescribes lunar penance for incestuous union and Sāntapana for unnatural sex, respectively. Further, a Brāhmaṇa’s indulgence in sexual relations with a Cāṇḍāla or lowest born woman was considered a sin, which resulted in a loss of caste for him. (MDh., 11.176) Similarly, a twice-born incurs a huge sin by having sex with a Śūdra woman, and he can only remove it by living on alms food for three years and performing soft recitations every day. (MDh., 11.179)
Like other grave crimes, the dharma texts prescribe penances alongside severe punishments like mutilation and death for sexual offenders too. However, these two overlapping concepts undergo a slight differentiation here as in case of punishment it was the responsibility of the King or a group of learned men (pariṣad) to decide the fate of the offender, keeping in mind the severity of the offence and the social position of the offender vis-a-vis the victim. On the other hand, penance is something which a person is responsible to perform on his own, with little or no external influence.
But for an adulterous wife, to redeem herself of wrongdoings, the penance was to confine her in a single room, or the performance of an arduous (kṛcchra) or lunar penance (Cāndrāyaṇa). This process, however, was supposed to take place in the supervision of her husband, as Manu in this regard says,
‘The husband should keep an adulterous wife confined in a single room and make her perform the observance prescribed for a man who has sex with another man’s wife.’ (MDh., 11.177)
Thus, in case of women, especially adulterous wives, a husband is given the authority to supervise the performance of a penance; whereas, for males, no such supervision is required by any external authority, and therefore, expiation, in contrast to punishment, remains a private, secret affair. Only under exceptional circumstances, when a person’s crime has been made public should he perform a penance laid down by the pariṣad, otherwise even the performance of a secret penance will do the needful.
Michel Foucault in his much acclaimed work ‘Discipline and Punish’ talks about the 1830’s in Paris as an ‘age of sobriety in punishment,’ as with the development of the prison the horrific spectacles of physical punishment came to be replaced by the ‘ordered world of the prison.’ According to Foucault, the aim here was ‘not to torment the flesh but to reach beyond the body to correct, reclaim, and cure the soul of the prisoner.’ Interestingly, the present analysis reveals that centuries before the development of prisons in the western world, both, the physical infliction of severe punishments (daṇḍa) and the idea to reform the soul through penances (prāyaścitta) exist simultaneously. While it was the King’s responsibility to ensure the infliction of just punishment, the correction of the soul was largely an individual’s personal sphere, at least for a major part of the population.
In conclusion, the idea of the physical infliction of severe and more public punishments (daṇḍa), carefully governed by the State or ruling authority, and the reformation of soul through ritualistic and private penances (prāyaścitta) exist simultaneously in early Sanskrit dharma texts. This is indicative of the fact that the ancient Indian law-givers tended to draw a distinction between compensation towards society and the reformation of an individual, and emphasized the idea of one’s moral duty towards society at large. However, it is interesting to note that one’s actions and their repercussions within this ethical universe were further defined by two prominent social constructs of the time, i.e., gender and caste. In fact, the neatly created concepts of daṇḍa and prāyaścitta underwent some changes or modifications too based on the caste and biological sex of the offender as well as the victim.
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 (Choudhary, 1953, 7).
 (Kane, 1974, 3)
 (Roy, 2010, 251)
 (Olivelle, 2011, 1)
 (Olivelle, 2011, 5)
 (Ahuja, 1969, 2)
 (Glucklich, 1988, 98)
 (Siqueira, 1933, 180-181)
 (Krishan, 1983, 109)
 A twice-born practicing the Prājāpatya penance should eat in the morning for three days and in the evening for three days, eat what is received unasked for three days, and abstain from food during the final three days. (MDh., 11.212)
 Subsisting on cow’s urine, cow dung, milk, curd, ghee, and water boiled with Kuśa grass, and fasting during one day. (MDh., 11.213)
 A twice-born practicing the Atikṛcchra (very arduous) penance should one mouthful a day during the three three-day periods and fast during the final three days. (MDh., 11.214)
 When a man, controlled and vigilant, abstains from food for twelve days, it is called the Parāka penance, which removes all sins. (MDh., 11.216)
 Decreasing the food intake to one rice-ball a day during the dark fortnight and increasing it likewise during the bright fortnight, and bathing three times a day. (MDh., 11.217)
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