Article courtesy:
https://criminallawstudiesnluj.wordpress.com/2020/05/10/conceptualizing-a-kautilyan-criminal-justice-system/
“It is the power of punishment alone when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or an enemy, that protects this world and the next” – Chanakya
Reformation of a Penal Code based on 19th-century Victorian ideals has been a constant process since Independence. As we are moving towards reforming our legal system to confront new challenges, Indian theorists and their thoughts are at the forefront of reformation. Chanakya (also called Kautilya) remains an extremely influential and controversial figure in Indian history even 2,000 years after his death. Chanakya is popularly in academic circles known as Indian Machiavelli (even though Chankaya lived 1,700 years before Machiavelli and Arthashashtra as work is much more in-depth and concise than the most famous work of Machiavelli i.e. The Prince). His most famous work is the Arthashastra, which is a comprehensive treatise on economics and politics. The Arthashastra is an authoritative work on statecraft, has three parts that relate to economic development, administration of justice, and international affairs and is further divided into 15 books. Book 3,4 and 5 deal with crime and punishment in a Kautilyan state.
The Arthashastra also provides the reader with a glimpse of Ancient India through its vivid description of life and administration in the Mauryan Dynasty, something that forces us to think and ponder upon how exactly did justice function in Ancient India? At a time when law and order increasingly becomes an issue of concern, we can learn from the wisdom of our forefathers and understand how the idea of criminal justice has grown and evolved. This piece aims to analyze broadly the various crimes as defined by Chanakya, their penal enforcement, and parallels with the current prevalent system.
Essentials of a Justice System
Chanakya describes maintaining law and order as the essential duty of government. This can be done in 2 ways, maintaining the social order as well as preventing and penalizing criminal activities. There is a clear distinction between the administration of civil law and criminal law. Book 4 of his omnibus includes the issues of criminal law and is titled ‘removal of thorns’ or removal of anti-social elements. For Kautilya, there were 4 bases of justice according to which any matter in dispute must be judged –
- Dharma, based on truth
- Evidence, based on witnesses
- Custom, traditions accepted by the people
- Royal edicts, the law as promulgated
A judge was called a ‘Dharmastha’ or upholder of justice indicating that ultimately the highest law of the land is Dharma. A bench of 3 Magistrates or Judges was responsible for the containment of anti-social activities. The remedies available in the Kautilyan State varied, in most cases fines were an adequate remedy but there were also remedies of incarceration, torture, and death available. He further discussed more pillars of a justice system. Firstly, that the rule of law had to be followed which suggests that, no one was above the law. Checks and balances were clearly introduced for all public officials including extra fines and punishment for malpractice in public duties. The doctrine of ‘Matsya Nyaya’ or the weak get eaten by the strong was not to be followed in an administration. If proper law was maintained by the king, the weak would not have to succumb to the fancies of the powerful and thus it was the responsibility of the Kingdom to protect the weak and follow the principles of justice. Secondly, the laws must be clear and concise and properly codified to ensure their remains no ambiguity or room for misinterpretation by judges and officials. Thirdly, the effectiveness of law enforcement depended on 3 factors- honesty of the law enforcer, proportionality of punishment and the importance of judicial fairness in the sense that justice must not only be done but also be seen.
Kautilyan Penal Code
Kautilya based his penal system on a complex interplay between monetary and physical punishments. He subscribed to a theory of the maintenance of law and order by the government by punishment, also called Dandaniti. Although he warned against meting out unjust punishment by the king and that such unfairness would lead to large scale dissatisfaction. Although prima facie, his theory seems cruel and a true representative of an Orwellian state, he provided for a lot of flexibility and safeguards within his system. The prescribed punishment could be modified by the magistrate taking into account the circumstances of the case and the local conditions, thus a certain leeway was granted to the Judiciary to implement the laws. The punishment was intended to strike a perfect balance, neither too severe nor too harsh. Existence and consequently reliance over upon regressive factors like caste and gender discrimination cannot be denied in the textand for some offences, the degree of punishment varied depending on the caste of the criminal. Punishment for offences depended on the caste and status of the victim and the accused and continued to vary with their respective circumstances. Non-vaginal intercourse was also prohibited in the text.
Checks and balances were established for the judges. No judge was to threaten, intimidate, misrepresent and fail on his other ethical duties, failure to do so lead to a hefty fine and even impeachment from office. Government officials involved in any corruption were to be severely punished. Leniency was shown within the system to those suffering from poverty, illness, thirst, etc and special circumstances of the person was to be taken into account while fixing the penalty.
While the current justice system is often accused of unfairly targeting exploited groups and does not take into account the conditional differences leaving the masses often feeling alienated from the justice system, the unique Kautilyan code had a place for taking into account the unique circumstances of a person.
Drawing Parallels
As described in the Indian Penal Code, crimes like causing miscarriage, assault, rape, homicide, and even state corruption were clearly identified and their definitions and separate punishments were prescribed by Chanakya.
The omnibus remains progressive in certain ways when it describes that it sets down a clear standard for what constitutes rape: no woman shall be enjoyed against her will. While the Criminal Law (Amendment) Ordinance 2018 further strengthened more severe punishment for rape of a minor, so did the Kautilyan penal code where cases of rape of a minor were to be punished more severely. The punishment was also proscribed for Animal cruelty and deforestation including varying punishments for harming animals. So while the western world, woke up late to the realization about protecting wildlife and nature, Chanakya had already in his code provided safeguards for the animal kingdom something that also represents the emphasis on ‘Sanskriti-Prakriti’ or the confluence between urban development and nature that Indian philosophical traditions have long emphasized upon.
Largely, all major modern crimes were covered by Chanakya and the width of his vision and foresight can be seen in the division he proposed between a civil and a criminal system and identification of a varying number of crimes including a separate judicial system as well as a separate investigation system.
Criminal Investigation
There were 3 grounds of arrest in a Kautilyan justice system-on suspicion, on possession and for crimes such as murder. The difficulty in the investigation during those times was taken into account. No one was to be arrested for a crime committed 3 days prior to the time of the arrest. Further grounds for reasonability were laid down for each of the types of arrests. For example, an arrest on suspicion could only be made for certain crimes such as murder, theft, and corruption.
For various crimes, different modes of the investigation were given in detail. For burglary, the entry and the exit of the thief were to be looked for. Evidence of the burying of tools and objects used for breaking in were to be searched for and if no external break-in clues found and the knowledge of the goods stolen was precise, then the burglary was presupposed to be done by someone on the inside. For unnatural deaths, Chanakya clearly stated that ‘anger is the motive of murder’. The magistrate was ordered to conduct a post mortem on any cases of sudden or unnatural deaths. Oil was to be smeared to effectively study the bruises of the victim and this examination of the body was to be conducted even if it appeared that person had committed suicide. Pseudoscientific methods to prove causes like poisoning were also described in detail.
The examination methods for witnesses and the accused are also described in detail. For cases involving unnatural deaths, those closely associated with the victim had to be questioned about his/her daily dealings and people near the scene of the crime were also to be questioned. The investigation had to be further conducted based on the evidence given by these people. Anyone suspected of having committed a burglary was to be interrogated in front of the accuser as well witnesses. Firstly, the personal information had to be stated by the defendant followed by a description of his alibi on that particular day and of the next day as well. If the statements proving his innocence were corroborated and found to be true, he was to be acquitted. Otherwise, a modus operandi had to be established regarding the way of entry, accomplices, tools used. If his innocence could not be corroborated, methods of torture were to be to elicit a confession although the prosecution could not rely solely on the confession of the accused if it was elicited by torture. The conclusive proof was essential before sentencing the person.
For presumption of guilt in an offence, torture was ascribed as a legitimate method. Certain groups of people including Children, aged people, the sick, pregnant women, and the insane were not to be tortured under any circumstances. Torture could never be severe enough to result in death, and if it did, the person responsible had to be punished. Furthermore, methods of torture were also prescribed by Chanakya for different levels of crime. An alternative to torture was when the suspicion of guilt was not that high, the suspect could be followed and his movements tracked for a period of time post the occurrence of the crime.
Conclusion
Indian criminal law is largely distinguished by colonial influence and it perpetuates the ideas drafted by Macaulay in a framework which promotes diversification of culture, between man and nature. While 150 years later, we continue to largely follow the Penal Code drafted by Macaulay, Chanakya offers a unique insight into the pursuit of future advancement of criminal law jurisprudence by opening up avenues for an amalgamation of its core principles with a culturally inclusive identification of stakeholders. Kautilya’s justice system shares many of ideals and objectives that are in consonance with our current justice system.
He continues to remain a relevant yet largely underrepresented think. Although the execution of his ideas across the fields of law, politics, and economics is a rare milestone that would revolutionize the criminal justice system by restoring the synergies of each niche of India, countering the lack of representation given to societal factors and the ecosystem. Chanakya and his thoughts on the Criminal justice system force us to rethink strategies with the aim of widening the scope of our system and evolve from the seeds sown by the Mauryan Empire instead of burying historical lessons to make it stronger and more robust. There is a crucial need to bridge this gap between the past and the present by ensuring a discussion of the confluence of cultural and legal principles.
[The author is a first-year student at National Law University, Delhi.]
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