Standard of Proof: According to Kautilya (p 386), ‘[In any case before the judges] admission [by the defendant of the claim against him] is the best. If the claim is not admitted, then the judgment shall be based on the evidence of trustworthy witnesses, who shall be persons known for their honesty or those approved by the Court. [Normally,] there shall be at least three witnesses (3.11).’ He (p 388) added, ‘In determining a suit in favor of one or the other party, the following shall be taken as strengthening a party’s case: statements of eyewitnesses, voluntary admissions, straightforwardness in answering questions and evidence tendered on oath. The following shall go against a party: contradiction between earlier or later statements, unreliable witnesses or being brought to court by secret agents after absconding (3.1).’
A few remarks are in order. First, Kautilya’s goal was to prevent the incidence of crimes and to ensure judicial fairness if a crime occurred. His conceptual framework offers a reference point. For example, there was no jury, a team of prosecutors or of defence lawyers at that time. The simple question is: has this institutional change improved upon the delivery of justice? According to Kautilya, judicial fairness depended on the amount of evidence and its reliability. Obviously, nonavailability of statistical methods at that time was not a big handicap in measuring the reliability of the evidence. Since objective measures of probabilities regarding the accuracy of evidence were neither available during the 4th century BCE nor are they available now—most likely the judge formed some subjective measure of reliability. Even today every judge or juror has to form some subjective measure of reliability of evidence. That is why, a concerted effort is made both by defence and prosecution to appeal to the juror’s emotions to influence his/ her subjective measure of reliability. Secondly, Kautilya considered the ‘number of witnesses’, that is, the amount of evidence also in deciding a case. Usually, nowadays the prosecutor stresses the ‘mountain’ of evidence whereas the defense questions its reliability, that is, tries to create a reasonable doubt. According to Kautilya, witnesses must be independent and known for their honesty, implying that the current practice of allowing testimonies of biased and paid expert witnesses or of convicted jailhouse inmates may be helpful in convicting the innocent or setting the guilty free (ie. in committing legal errors) but not necessarily in the delivery of justice.
Kautilya (p 462) recommended, ‘Anyone arrested shall be interrogated in the presence of the accuser as well as witnesses from inside and outside the house of the accuser (4.8).’ He (p 463) asserted, ‘A suspect may admit to being a thief, as Ani-Mandavya did, for fear of the pain of torture. Therefore, conclusive proof is essential before a person is sentenced (4.8).’ Kautilya insisted on solid evidence for conviction (although the above story is told a little differently in the Epic Mahabharata—that a sage did not want to break his vow of silence to declare his innocence but the implication is the same). Kautilya (p 464-65) offered a detailed discussion on forensic evidence for establishing the cause of death. However, he (p 466-467) did recommend torture to elicit confession but only in those cases (excluding the sick, the minors, the aged, the debilitated, the insane, those suffering from hunger, thirst or fatigue after a long journey and a pregnant woman) where there was a strong suspicion of guilt. He (p 467) cautioned, ‘A person can be tortured only on alternative days and only once on the permitted days. Torture shall not result in death; if it does so, the person responsible shall be punished (4.8).’ It may be noted that the accused was to be questioned in front of the accuser, implying that Kautilya would not have approved the current practice of giving a choice to the accused, whether to take the witness stand or not.
Punishment for Perjury: Perjury was a punishable offence. Kautilya (p 388) stated, ‘Witnesses are obliged to tell the truth. For not doing so, the fine shall be 24 panas and half for refusal to testify (3.11).’
Futility of Witness Tempering: Kautilya (p 389) added that if a party to a suit ‘conspires with witnesses by talking to them in secret when such conversation is prohibited (3.1),’ this would be an adequate ground against the party.
Cost of Type I Error: Kautilya (p 493) wrote, ‘An innocent man who does not deserve to be penalized shall not be punished, for the sin of inflicting unjust punishment is visited on the king. He shall be freed of the sin only if he offers thirty times the unjust fine (4.13).’ According to Kautilya, convicting an innocent person was a ‘sin’, that is, an ethical lapse and also a huge monetary loss (‘thirty times’) for the state.
Cost of Type II Error: Kautilya (p 437) suggested, ‘If a king is unable to apprehend a thief or recover stolen property, the victim of the theft shall be reimbursed from the Treasury (ie. the king’s own resources). Property [unjustly] appropriated shall be recovered and returned to the owner; otherwise, the victim shall be paid its value (3.16).’ Two remarks are in order. First, a much broader and more relevant definition of Type II error is discernible from Kautilya’s statement since he did not make a distinction between the guilty who were arrested but not convicted and those guilty defendants who had evaded arrest (this is explained below). Whereas the commonly advanced definition of type II error is confined only to the guilty defendants who are arrested but not convicted due to lack of sufficient evidence against them. Secondly, at that time, no private insurance policies (a case of missing markets) were available against the possibility of loss caused by theft and burglary and the king was asked to fulfill this role. Consequently, there was a builtin incentive to prevent crimes from happening and solving them if they happened otherwise the king had to compensate for the loss. Certainly a market for insuring such losses has been created, which is a good thing but in the process the built-in incentive to prevent and solve such crimes has been lost. The following numerical table may be used to make Kautilya’s definitions of Type I and Type II errors explicit.7
A Numerical Example to Calculate Type I and Type II Errors Guilty Not Guilty Total Arrested 100 10 110 Convicted 80 5
Not Convicted 20 5
Not Arrested 900 98990 99890 Total 1000 99000 100,000 Kautilya’s definitions: Probability of Type I error (notations are explained in end notes 7 and 8) = (1–δ) Pi (A/ Gc) =5/99000. It may be noted that given other things constant, the probability of Type I error increases as the number of arrests increases. In actuality as the number of arrests increase, the police may get over-burdened and courts get crowded and consequently both δ and Pi are adversely affected. The probability of arresting and convicting the criminal =π = δPg A/G = 80/1000 and this is relevant if the goal is the prevention of crimes. That is precisely the definition, Gary Becker considers for preventing crimes. As mentioned above, Kautilya did not make a distinction between those defendants who were arrested but not convicted and those guilty defendants who were not even arrested. Since the king was asked to compensate for all the unresolved cases—therefore, according to Kautilya, the Type II error probability = 1–π =920/1000. It may be noted that given other things equal, the probability of Type II error decreases as the arrests increase.8
Of course, Kautilya’s goal was to avoid the arrest of an innocent person and if arrested not to convict him, that is, if possible to achieve, δ =1, or Pi = 0. However, if δ = 1– δ or Pg = Pi, that is, if the probabilities of arrest or conviction were the same for the guilty and the innocent, there would be a chaos. He was quite concerned about the possibility of such a situation.
Reduction of Errors through Additional Evidence: In this context, Kautilya (p 389) explained, ‘If there is a conflict in the evidence given by different witnesses, the judgment shall take into account the number of witnesses, their reliability and the [opinion of the court on their] disinterestedness (3.11).’ It is significant to note that according to Kautilya, additional evidence, such as, ‘the number of witnesses’, was assumed to reduce the magnitudes of both the Type I and Type II errors (see Thomas H Wonnacott and Ronald J Wonnacott, 1977, 2nd ed., p 259-260). Figure 15.1 may be used to explain Kautilya’s insight:
The pro
bability distribution of evidence against an innocent person is indicated by (fI) and that against a guilty person by (fG). Kautilya’s analysis implied that the probability distributions shrank as the amount of evidence increased. The probability distribution for the innocent shrank from fI to fI and the probability distribution for i
the guilty shrank from fG to fG. Consequently the Type I error was i
reduced9 from α to α1 and the Type II error was reduced from β to β1.
Figure 15.1: (fI) = probability distribution of evidence against an innocent person, (fG) = probability distribution of evidence against a guilty person. As evidence increased, the probability distribution for the innocent shrank from fI to fI and the probability i
distribution for the guilty shrank from fG to fG and Type I and Type II errors decreased.i
15.3 ON THE OPTIMUM LEVEL OF PUNISHMENT Role of the Judge: In the absence of a jury, a defense lawyer and a prosecutor, there was a very heavy burden on the judges and magistrates to keep legal errors to the minimum. Kautilya (p 377) expected, Judges shall discharge their duties objectively and impartially so that they may earn the trust and affection of the people (3.2).’ And in return, as mentioned above, Kautilya recommended a decent salary of 8,000 panas for a judge (magistrate).
Guidelines on Sentencing: Kautilya laid down a set of guidelines relating to sentencing. It is obvious that fairness is not a modern notion since mankind has been concerned with it for a long time.10 It constitutes the very justification for the creation of state. Kautilya (p 377) wrote, ‘A king who observes his duty of protecting his people justly and according to law will go to heaven, whereas one who does not protect them or inflicts unjust punishment will not. 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. (3.1).’
The above statement indicates that Kautilya emphasized the critical role of punishment in deterring crimes and understood that to be effective, the punishment must be certain, impartial and in proportion to the severity of the crimes. Kautilya (p 108) elaborated on this theme, ‘Some teachers say: “Those who seek to maintain order shall always hold ready the threat of punishment. For, there is no better instrument of control than coercion.” Kautilya disagrees [for the following reasons]. A severe king [meting out unjust punishment] is hated by the people he terrorizes while one who is too lenient is held in contempt by his own people. Whoever imposes just and deserved punishment is respected and honored. A well-considered and just punishment makes the people devoted to dharma, artha and kama [righteousness, wealth and enjoyment]. Unjust punishment, whether awarded in greed, anger or ignorance, excites the fury of even [those who have renounced all worldly attachments like] forest recluses and ascetics, not to speak of householders. When, no punishment is awarded through misplaced leniency and no law prevails, then there is only the law of fish [ie. the law of the jungle] (1.4).’
According to Kautilya, punishment up to a point helped law and order situation but beyond a certain level it was likely to hurt it. He believed that judicial fairness was absolutely essential to the survival of a state. It means that the implication of Becker’s model that ‘catch a few and hang them’ may not reduce crime. Almost all the studies on crime and punishment assume that social and political stability are unaffected by the level of punishment. Kautilya questioned that assumption. However, as discussed in Chapter 6, he believed that ethical environment was a pre-requisite to administration of justice.
Balance between Rules and Discretion: Kautilya provided a detailed list of sanctions matching the severity of different types of crimes. However, lest the system should become too rigid, the judges were permitted some discretion. He (p 493) laid down, ‘The special circumstances of the person convicted and of the particular offense shall be taken into account in determining the actual penalty to be imposed (3.2). Fines shall be fixed taking into account the customs (of the region and the community) and the nature of the offense (2.22). Leniency shall be shown in imposing punishments on the following: a pilgrim, an ascetic, anyone suffering from illness, hunger, thirst, poverty, fatigue from a journey, suffering from an earlier punishment, a foreigner or one from the countryside (3.20).’ According to Kautilya, a judge should take into consideration both the mitigating and the aggravating (egregious) circumstances and the characteristics of the defendants in the determination of the punishment.
The current debate on rules versus discretion is mostly about the polar cases, that is, whether to have rules or to have discretion. In Kautilya’s scheme of things, rules were like focal points (or guide posts) around which discretion had to be exercised. Too many rules and strict adherence to them might deny gains from changed circumstances or other unexpected opportunities and similarly, too much discretion might lead to substantial abuses11 and opportune behavior which, might result in erosion of credibility.
15.4 ON OTHER RELATED ISSUES Preference for a Monetary Punishment: Kautilya recommended monetary punishment over non-monetary ones and also the ‘penal slavery’. In fact, at that time imprisonment as a punishment did not exist. Prisons were used simply to hold the defendants temporarily for the duration of the trial. Kautilya proposed long lists of different kinds of physical punishments or monetary fines. However, if the convicted person wished, physical punishments prescribed for nonserious crimes could be substituted with monetary fines. For example, according to Kautilya (p 495), a convicted person could pay 54 panas to spare the mutilation of his thumb and forefinger or the tip of his nose. He (p 490) suggested that convicted persons were released from prison only ‘if they had paid off, by their work12, the amount owed by them’ or ‘after receiving a payment for redemption’ or redeemed by charitable persons (2.36).
Crime Deterrence through Parading the Thieves: Kautilya (p 221) recommended, ‘When thieves and robbers are arrested, the Chancellor shall parade them before people of the city or the countryside [as the case may be] and proclaim that the criminals were caught under the instructions of the king, an expert in detecting thieves. The people shall be warned to keep under control any relative with criminal tendencies, because all thieves were bound to be caught [like the ones paraded before them]. Likewise, the Chancellor shall parade before the people forest bandits and [criminal] tribes caught with stolen goods as proof of the king’s omniscience (4.5).’ Clearly, the policy of parading the thieves was intended by Kautilya to increase the perceived probability of catching them.13 It also carried a preventive aspect.
It is interesting to note that in the case of government officials, who stole property of others, other than that of the king, Kautilya (pp 302-3) recommended ‘shaming’ in lieu of monetary fines as punishments. He suggested ‘smearing with cow dung in public’, ‘smearing with cow dung and ashes in public’, ‘parading with a belt of broken pots and exile’ or ‘shaving off the head’ as the amounts of thefts increased in lieu of monetary fines of 3 panas, 6 panas, 12 panas and 24 panas respectively. One wonders how he calculated the equivalence between the magnitude of a fine and a particular method of shaming. In any case, Kautilya was clearly aware of the deterrent role of shaming (Gandhigiri) as a punishment.
The Four Strikes and You Are Out Rule: Kautilya (p 493) recommended, ‘In all cases, the punishment prescribed shall be imposed for the first offense; it shall be doubled for the second and trebled for the third. If the offense is repeated a fourth time, any punishment, as the king pleases, may be awarded (2.27).’ He thus emphasized the deterrent aspect of punishment.
Protection of Whistle Blowers: Kautilya (p 298) suggested, ‘Any informant, to whom an assurance against punishment has been given [even if he had participated in the fraud], shall, if the case is proved, receive [as reward] one-sixth of the amount involved; if the informant is a state servant, one-twelfth. If the case is proved, the informant [shall be permitted to escape the wrath of the guilty and] may either remain in hiding or attribute the in
formation to someone else (2.8).’
State Representation of the Helpless: Kautilya did show compassion for the helpless. He (p 385) stated, ‘The judges themselves shall take charge of the affairs of gods, Brahmins, ascetics, women, minors, old people, the sick and those that are helpless [eg. orphans], [even] when they do not approach the court. No suit of theirs shall be dismissed for want of jurisdiction, passage of time or adverse possession (3.2).’ This pro-active and suo motu responsibility of the judges, which also justifiably involves a measure of administrative empowerment, coupled with some discretion in awarding punishment, made them fully accountable for the proper execution of punishment in Kautilya’s scheme of justice. He, thus, laid down a very comprehensive and balanced approach to handle crime and punishment. Kangle (part III, p 230) concludes it quite aptly, ‘This very brief review of the law found in Kautilya will, it is hoped, show how it has been treated by him in the most systematic manner. The treatment is also as full as possible.’
SUMMARY There are several salient features of Kautilya’s judicial system Kautilya’s goal was to attain a crime-free society but ‘the removal of thorns’ was to be achieved only by resorting to legal means. Secondly, government must make sure that everyone could have access to justice. Thirdly, the emphasis was on prevention of crimes through ethical anchoring. Fourthly, he proposed a judicial system, which had built-in fairness. If a crime was not solved, the king had to compensate the victim. So there was an incentive to solve it. Similarly, there was an incentive not to commit a Type I error in solving the crime since the king had to pay thirty times the amount of fine imposed on the innocent. Thus there was a built-in incentive to minimize the costly errors of omission and commission. Fifthly, according to Kautilya, monetary punishments imposed in lieu of physical punishments must be collected.
Finally, he emphasized the cardinal principles of justice that punishment must be certain, proportionate to the crime and imposed impartially. He pointed out that excessive punishment due to ‘anger, greed or ignorance’ was counterproductive since people lost respect for the law. Kautilya believed that fairness was essential for political stability, which was a prerequisite for prosperity. Recently, A Mitchell Polinsky, and Steven Shavell (2000) assert, ‘The earliest economically oriented writing on the subject of law enforcement dates from the eighteenth century contributions of Montesquieu (1748), Cesare Becceria (1767) and especially, Jeremy Bentham (1789), whose analysis of deterrence was sophisticated and expansive.’ In the light of the above presentation of Kautilya’s ideas on crime and punishment, their conclusion needs modification, as described above, Kautilya’s judicial system was quite advanced and comprehensive and evolved two thousand years earlier.
Kautilya- the True Founder of Economics Page 26
