Verse 8.316

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

शासनाद् वा विमोक्षाद् वा स्तेनः स्तेयाद् विमुच्यते ।
अशासित्वा तु तं राजा स्तेनस्याप्नोति किल्बिषम् ॥ ३१६ ॥

śāsanād vā vimokṣād vā stenaḥ steyād vimucyate |
aśāsitvā tu taṃ rājā stenasyāpnoti kilbiṣam || 316 ||

The thief becomes absolved from the theft, either through punishment or through acquittal. By not punishing the thief, the king imbibes the guilt of the thief.—(310)

 

Medhātithi’s commentary (manubhāṣya):

‘Through punishment’— with the stroke of the pestle and other things, the thief of the Kṣatriya and lower castes ‘becomes absolved’ from the guilt;—or ‘through acquittal’—i.e., by being let off, being addressed with the words—‘Go, you have been forgiven.’

In regard to the Brāhmaṇa thief, under 11.100 below, ‘immolation’ and ‘austerities’ have been prescribed. But as a matter of fact, there can be no ‘immolation’ of the Brāhmaṇa; and ‘austerity’ being an expiatory rite, the ‘approaching’ of the king could not be with a view to any such austerity. Hence the ‘acquittal’ here spoken of must also refer to the Kṣatriya and other castes.

But there can be this ‘acquittal’ only after the fine has been realised; because of what is said in the second half of the verse. And when the man has become absolved through this acquittal, his non-punishment cannot render the king open to censure.

It might be argued that—“Punishment and acquittal both being sanctioned by law, the blame spoken of lies on the king in that, ease with reference to which punishment has been enjoined.”

But this would make the injunction optional; and it is not right to assume as optional what has been declared to be absolute. In fact Vaśiṣṭha and others have laid down the law in general terms:—‘The thief contaminates with his guilt the king who acquits him; but if the king kills the guilty thief, since he kills him legally, no blame attaches to him’;—and it cannot be right to regard this as optional.

It is true that the injuring of a living being is in one place forbidden: the assertion ‘one should not injure any living being,’ forbidding such injury as might he inflicted under the influence of some passion. In another place it is sanctioned, as for instance, in connection with the Agniṣṭoma sacrifice.

But in the case in question the act of ‘punishing’ cannot, in the face of the direct injunction of it, be held to be forbidden by the declaration regarding ‘acquittal.’

How can it be regarded as not forbidden? The general prohibition ‘injure not a living being’ cannot be set aside, except when there is a direct injunction of such injury (in any particular case).

It might be argued that—“The case in question does not fall within the scope of the prohibition; since it is conducive to the fulfilment of a particular act that has to be done.”

But, in the absence of a distinct injunction, how can it be believed that a certain injuring is conducive to the fulfilment of an act?

It may be held that this would he learnt from worldly experience.

But in that case, the act being an ordinary worldly one,—how could any prohibition affect it?

Let us consider the nature of the main act in question. If it is Vedic, then the injuring of animals which forms part of that act must also derive its sanction from the Veda. Because the principal and its subsidiary both must derive their sanction from the same source. If, even in the case of a Vedic act, a mere desire for gain forms the motive, then, in that case, the injuring of the animal becomes a worldly act. So that, in the case of the injuring of human beings by the king inflicting punishments, the act forms part of that action of ‘protecting the people’ which is undertaken, by way of livelihood; and as such it cannot form the subject of any Vedic Injunction. In fact, even if the injuring formed part of a prescribed act, it could not form the object of prohibition; as it would stand on the same, footing as the Śyena sacrifice. The act of injuring again does not form a necessary factor even in the worldly act (of protecting); for it is not impossible to carry on the work of protection without inflicting injury;—the same purpose being served by reprimanding and other similar means also.

It is not necessary that the motive behind the principal act and its subsidiaries should he of the same kind. If it were, then there would be no difference in the nature of the immolations of the two animals offered to Agni-Soma (?). So that even when the principal act is prompted by a desire for gain, it may be possible to regard its subsidiary as prompted by an Injunction.

The act of ‘injuring’ under consideration however cannot be regarded as prompted by an Injunction; as by its very nature, the act of ‘protecting,’ as also that of ‘injuring,’ is ‘worldly.’ If they were prompted by an Injunction, then there would be an option between its prohibition (by the general prohibition of all injury) and its injunction as part of the act of ‘protecting,’—just as there is in the case of the holding and not-holding of the Śoḍaśī vessels.

Others hold that the verse consists of two distinct sentences;—the first half of the verse describing the way in which the thief becomes absolved from guilt, and the latter indicating the impropriety involved in the king’s failure to punish the thief, So that in a case where the king lets off the thief, thus voluntarily incurring the sin of not punishing him,—the thief does become absolved from his guilt.

Similarly when a Brāhmaṇa-thief surrenders himself, if he is killed, he does become absolved from guilt; since we have the text—‘Becoming the target of armed men, etc.’ (11.73). And even though in striking the Brāhmaṇa the king may be going against the prohibition—‘For the Brāhmaṇa there shall be no corporeal punishment’ (Gautama, 12.46),—yet there can be no doubt that the Brāhmaṇa, thus punished, becomes absolved from his guilt.

‘By not punishing’—not striking him with the pestle or other things—he becomes contaminated with the guilt of the thief.—(316)

 

Comparative notes by various authors

Saṃvarta (Aparārka, p. 1079).—(See above.)

Bodhāyana (2.1-17).—‘Whether he be punished or be pardoned, the thief becomes freed from his guilt. But if the King does not punish him, the guilt of the thief falls upon him.’

Vaśiṣṭha (20.41).—‘It is declared in the Veda that the thief becomes purified by death caused with the club offered to him by the King.’

Gautama (12.44-45).—‘Whether he be slain or pardoned, he becomes purified of his guilt. If the King does not strike him, the guilt falls on the King.’

Āpastamba (1.25.4-5).—‘... If the thief dies, his sin is expiated. If he is forgiven by the King, the guilt falls upon him who forgives him.’

Viṣṇu (52.2).—‘Whether the King kills the thief with the club, or dismisses him unhurt, he becomes purified.’

Yājñavalkya (3.257).—(See under 314-315.)

Nārada (Theft).—‘By going to the King and confessing his guilt, the thief becomes purified. The King shall touch him with a club, or dismiss him; in either case he becomes purified. Those men who have received a punishment from the King for an offence committed by them, proceed to heaven, free from sin, as if they were virtuous men who have acted well. Whether he be punished or released, the thief is freed from his crime; if, however, the King does not punish him. the guilt of the thief falls on the King himself.’