Concept of punishment in the Dharmasastra is embedded in the Vedic tradition. The Veda speak of levels of reality, knowledge, and language.

1. Sunil Sondhi
Tagore National Fellow
Indira Gandhi National Centre for the Arts
INTERNATIONAL CONFERENCE
VEDIC JURISPRUDENCE & ITS IMPACT ON CONTEMPORARY WORLD
11-12 February 2023, Banaras Hindu University, Varanasi

2. Vision in Long Darkness
Law has been too often perceived mainly as state-based rules and
institutions that provide a scientific and positivist alternative to religious
concepts and practices and traditional customs. This presentation uses Vedic
tradition to question the Western perspective and highlight some aspects of
close linkages between law and religion, secular and sacred, in India.
As a preliminary study of Hindu law and jurisprudence this
research paper is structured around the key legal concept of Danda, or
punishment, in Hindu law. It provides an overview of the Hindu way of legal
thinking regarding the concept of danda through a brief examination of
some of the Vedic and Dharmasastra texts.

3. The Thousand Syllabled Speech
As an example of what law can enable and achieve and what it can restrict
and constrain one may look at recent Supreme Court judgement in which it
was said that “in the context in which it is used, the word
“recommendation” would mean a consultative process” and
conscious, effective, meaningful and purposeful consultation represents the
essence of recommendation.
Minority opinion was that “when law is clear, plain or unambiguous, and it is
reasonably susceptible to only one meaning, the court is bound to give effect
to that meaning and admit only one meaning and no question of
construction of a statute arises. The measure was regarded as un-
lawful only on a purely legalistic analysis of the relevant provisions of
the Act and not on the objects of demonetization”.

4. Text and Context
 The interpretation which makes the textual interpretation match
the contextual has to be preferred. Ascertainment of legislative intent
is the basic rule of statutory construction. If the text is the texture, context is
what gives the colour. Neither can be ignored. In the context of its enactment
text may take colour and appear different than without the context.
 Statutes have to be interpreted so that every word has a place and
everything is in its place. No word of a statute can be construed in
isolation. A statute is best interpreted when the reason and purpose for its
enactment is ascertained. Both enactment and purpose are important. The
modern approach of interpretation is a pragmatic one, and not pedantic.

5. Finite and Infinite
In Vedic tradition words and thought are interconnected,
integrated, and emergent. This seamless connection may be described
partially in terms of layers or levels of Para, Pasyanti, Madhyamika,
Vaikhari. The relationship is autopoetic, internally generated and meaning
is created at the time of intentional interaction or expression.
Words are finite but meaning is embedded in thought which is
ambiguous and uncertain. The ultimate context is infinite, unmanifest.
It lies outside space and time but creates events and objects that can be
located in spacetime. All objective reality like language and law is embedded
in and enveloped by the infinite reality.

6. Western Tradition
Legal positivists see law and adjudication deterministically. For
them, the law already means either A or B. They differ in respect of what
leads judges to answers in a case, just legal rules or also principles.
However, they believe in common that if a judge has enough knowledge and
skills, he would reach the one correct legal answer in the case.
Legal realists, and pluralists see the probabilistic nature of law
and judicial decision-making. Rarely are the possibilities either right or
wrong. In other words, they are all equally right. However, the one chosen
in a particular case will become legally true for that case, and will become
one of the factors constraining judges in future cases.

7. Legal Culture
The idea of legal culture has had an important place in recent
debates about the nature and aims of law. It means that law should be
treated as embedded in the broader culture of society. In a sense, law is
culture. Concept of legal culture encompasses much more than the
professional juristic realm. It refers to a more general consciousness or
experience of law that is widely shared by those who constitute a nation.
Western positivist notions of law do not touch the reality of the
way most people understand and live their lives in India. A legal
system that does not correspond to the social, religious and cultural
sensitivities of a society can not be owned by the people but will be seen as
foreign and imposed. Without a conducive social and cultural concept-
ualization mere formal law cannot create willing legal and moral obligation.

8. Vedic Legal Tradition
The absence of a single key word for ‘law’ in Sanskrit has given rise
to misconceptions that ancient Indians were somehow deficient in legal
theorising and lacked a clear conceptualisation of ‘law’. The field of
jurisprudence now needs to be re-examined, to show the rich plurality of
meanings of what are in fact various types and conceptualisations of ‘law’ in
Indian tradition.
In the Vedic tradition we can see an indigenous system of law and
justice, focused on the key concepts of rta and satya. In addition,
dharma, danda, vyavahāra, ācāra and its various forms and other
terms are relevant to a deeper understanding of the richness of ancient
India’s conceptualisations of ‘law’.

9. Law and Morals
 In the Vedic tradition there is no one textual statement that can
represent ‘the law’ as it is understood today. The Vedic legal system is not
built on codified statements by a human legal authority, to which factual
situations are then related, nor is it based on a fixed revelation, which came
down from heaven one day and binds all adherents.
 Vedic tradition of law is based on awareness of a pre-existent
order, the observable system of nature, conceptually embodied in the Vedic
concepts of rta and Dharma. The Vedic concept of macrocosmic order,
beyond direct human reach, transcends and envelops any form of positivistic
human law-making.

10. Eternal Rta
 The concept of rta or eternal law is a multifaceted concept
connected to all the fundamental concepts in the Vedic tradition. Rta is the
eternal law of order and harmony underlying the cosmic phenomenon. This
eternal and universal order or law, maintained by Varuna is all pervasive
and the universe is the expression of this order observed by all gods.
 The sphere of rta is physical, metaphysical and ethical. The term
signifies the course of the natural world perceived through its rhythms,
seasons, cyclic movements and equilibrium and harmony in nature. It refers
to three basic elements, activity, order, and system. Hence, “heaven and
earth exist in close unison in the womb of rta”. (Rg Veda, 4.23; 10.65; 10.190)

11. Social Dharma
Indian legal tradition is not a Western-style legal system with codes
and cases but upholds at all times the situation-specificity of justice based on
natural law principles. Law exists outside the realm of the human also, and
there is a subtle link between cosmic order and human existence. Individual
freedom rests on socially operative normative order to which ruler is also
accountable. Freedom is in law.
Dharma denotes not just ‘religion’ or ‘law’, but moralised duty,
placed upon every individual, to contribute to macrocosmic as well as
microcosmic order. In Dharma, the central rule is that an individual should
do the right thing at the right time and place. Appropriate action, following
one’s duty, is the aim of life.

12. Dandaniti AS
Danda used after full consideration, endows the subjects with
spiritual good, material well-being and pleasures of the senses.
Used unjustly, in passion or anger, or in contempt, ascetics and
householders alike. If not used at all, it gives rise to the law of the fishes. AS1.4.7
With full consideration of the person, the offence, the motive, seriousness of
the offence, the consequences, the present effects, and the place and time,
punishment at the highest, the lowest or the middle level shall be given,
remaining neutral between the king and the subjects. AS4.11.8
Varuna is the punisher of kings who behave wrongly towards men. AS4.13.43
In whatever suit false evidence should have been given, the effect of that
shall cease, what has been done shall be undone, and penalty imposed.

13. DandanitiMS
After ascertaining the motive, the time and place, and taking
into consideration the condition and the nature of the offence,
punishment shall be given to those deserving punishment. MS 126
Punishment shall be given in the form of reprimand, reproach, fine, or
capital punishment. MS 12
Unjust punishment is destructive of reputation and subversive of fame;
it leads to loss of heaven; shall therefore be avoided. MS 127
The king, punishing those who do not deserve to be punished, and not
punishing those who deserve, attains great ill-fame, and hell. MS 128.
Stating the untruth in evidence, the witness becomes firmly
bound in Varuṇa’s fetters, helpless during a hundred births. MS,82

14. Conclusion
Law and jurisprudence must remain in touch with social
reality, as the formal state law can not, on its own fulfill the social
objectives of liberty, equality, fraternity and justice. This requires
formulation of laws with reference to indigenous social norms and
values. Law based on positivist assumptions should be seen in
the context of Vedic tradition of law and jurisprudence.
Vedic tradition shows us the value of thinking about law in
close connection to both religion and life of common people.
It reminds us that legal processes and institutions are not the exclusive
province of state and legislature, and should function in close touch
with the most ordinary of human contexts. Law enables human
advancement as much as it constrains human follies.

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