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The Indian Panchayat, Access to Knowledge and Criminal Prosecutions in Colonial Bombay, 1827–61

Published online by Cambridge University Press:  02 April 2020

James Jaffe
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Abstract

Throughout the mofussil of the Bombay Presidency British judges and magistrates called upon panchayats, that is, caste or village councils, to help them administer justice. By the mid-nineteenth century, panchayats were being deployed by British justices not only to offer their advice to judges attempting to decide a case, but much more frequently to investigate crimes, including murder, assault, robbery, arson, forgery, rape, and property disputes. Moreover, the active participation of the panchayat in the administration of criminal law varied as much in form as in function. In different scenarios, the panchayat functioned as a coroner's court, a criminal investigation team, and a general witnessing agent for the courts. With very few exceptions, they almost always appear in a supporting role on the prosecution side of any case offering their opinions on the crime in question in written form. Judges, for their part, appear to have relied quite heavily upon these recommendations and there are very few instances in which the panchayat's opinions were either ignored or rejected. There thus developed a hybrid system of justice whereby judges and magistrates adapted, transformed, and incorporated the expertise and knowledge of the ‘customary’ panchayat to suit the needs of British governance and legal administration.

Type
Forum: Cultural Expertise
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 47 - 74
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

He thanks Mitra Sharafi, Marc Galanter, Sumudu Attapatu, Cynthia Farid, and other members of the South Asia Legal Studies Workshop at the University of Wisconsin Law School as well as Livia Holden, the Oxford University Centre for Socio-Legal Studies, and the participants of the conference on Cultural Expertise in Ancient and Modern History for their comments and suggestions. All errors remain the responsibility of the author. This special issue is an output of EURO-EXPERT-ERC funded project 681814 led by Livia Holden at the University of Oxford.

References

1. Generally, see the contributions to Holden, Livia, ed., Cultural Expertise and Litigation: Patterns, Conflicts, Narratives (Abingdon: Routledge, 2011)CrossRefGoogle Scholar and Professor Holden's introduction therein.

2. The literature on “law and governance” in colonial India is an extensive one although it is heavily weighted toward the experience in Bengal. Relevant contributions include Fisch, Jörg, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769–1817 (Wiesbaden: Franz Steiner Verlag, 1983)Google Scholar; Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998)Google Scholar; Wilson, Jon E., The Domination of Strangers: Modern Governance in Eastern India (Basingstoke, Hampshire: Palgrave Macmillan, 2008), ch. 4CrossRefGoogle Scholar; and Travers, Robert, Ideology and Empire in Eighteenth-Century India: The British in Bengal (Cambridge: Cambridge University Press, 2007), ch. 5CrossRefGoogle Scholar.

3. Derrett, J. Duncan M., “The Administration of Hindu Law by the British,” Comparative Studies in Society and History 4 (1961): 10–52CrossRefGoogle Scholar; see also the useful introductions provided by Rocher, Rosane, “The Creation of Anglo-Hindu Law,” in Hinduism and Law: An Introduction, ed. Lubin, T., Davis, D. R. Jr., and Krishnan, J. K. (Cambridge: Cambridge University Press, 2010), 78–88CrossRefGoogle Scholar; and Otter, Sandra Den, “Law, Authority, and Colonial Rule,” in India and the British Empire, ed. Peers, D. M. and Gooptu, N. (Oxford: Oxford University Press, 2012), 168–90CrossRefGoogle Scholar.

4. The literature on the mutability of bureaucracy, scribes, and the documentary state is one such interesting area of current research. See, for example, Raman, Bhavani, Document Raj: Writing and Scribes in Early Colonial India (Chicago: University of Chicago Press, 2012)CrossRefGoogle Scholar. In a more contemporary context, Mathur's, NayanikaPaper Tiger: Law, Bureaucracy and the Developmental State in Himalayan India (Delhi: Cambridge University Press, 2016)CrossRefGoogle Scholar is a very fine example of this approach.

5. For the earlier history of the panchayat in the Bombay Presidency, see Jaffe, James, Ironies of Colonial Governance: Law, Custom and Justice in Colonial India (Cambridge: Cambridge University Press, 2015)CrossRefGoogle Scholar; on the Madras Presidency, see Catherine Sandin Meschievitz, “Civil Litigation and Judicial Policy in the Madras Presidency, 1800–1843” (PhD diss., University of Wisconsin–Madison, 1986); and Beaglehole, T. H., Thomas Munro and the Development of Administrative Policy in Madras, 1792–1818 (Cambridge: Cambridge University Press, 1966), ch. 3Google Scholar.

6. Parenthetically, Regulation X also provided for the creation of “Special Commissions” to arbitrate village boundary disputes but did not mention panchayats specifically. However, local judges also interpreted this Regulation to connote the employment of juries and panchayats to resolve such disputes. See Morris, James, ed., Cases Disposed of by the Sudder Foujdaree Adawlut of Bombay (hereafter Morris, Cases), Vol. VIII (Bombay, 1858), 7Google Scholar.

7. The employment of panchayats in the army of the East India Company to decide suits against military personnel persisted throughout this period. Act XI (1841), for example, extended this practice from the troops stationed in the Madras Presidency to those stationed in the Bombay Presidency.

8. Anon., Reports of Selected Cases Decided by the Sudder Dewanee Adawlut, Bombay (Bombay, 1862), Case No. 23, 105–8.

9. For example, Harrington refers to a report of the assessors’ findings in a murder case as a “punchnama.” See E. Harrington, Cases Disposed of by the Sudder Foujdaree Adawlut of Bombay (hereafter Harrington, Cases), vol. III, 301.

10. On the coroner's inquest in England, see Jervis, John, On the Office and Duties of Coroners, 3rd ed. (1829; London: H. Sweet, W. Maxwell and Stevens & Sons, 1866)Google Scholar. Unlike in England, however, there appears to have been no system of fining the perpetrator in cases of accidental death. On the deodand, or fine for causing an accidental death, see P. J. Fisher, “The Politics of Sudden Death: The Office and Role of the Coroner in England and Wales, 1726–1888” (PhD diss., University of Leicester, 2007), 122–25.

11. Morris, Cases, X:105.

12. Morris, Cases, VI:396.

13. Harrington, Cases, III:37–38.

14. Morris, Cases, VIII:342. Emphasis added.

15. Morris, Cases, I:467.

16. Morris, Cases, V:205.

17. Morris, Cases, X:211.

18. Morris, Cases, III:729.

19. For the practice in England, see Fisher, “Politics of Sudden Death,” ch. 7; Burney, Ian, Bodies of Evidence: Medicine and the Politics of the English Inquest, 1830–1926 (Baltimore: Johns Hopkins University Press, 2000), 4–5Google Scholar; and Impey, John, The Practice and Office of the Sheriff…, also, the Practice of the Office of Coroner, 5th ed. (London, 1822), 444Google Scholar.

20. Elphinstone Code, §XXIV, Clause 1st.

21. See Jaffe, Ironies of Colonial Governance, 29. On judicial panchayats under the Marathas, see Gune, V. T., The Judicial System of the Marathas (Poona: Deccan College Post-Graduate and Research Institute, 1953)Google Scholar; and Elphinstone, Mountstuart, Report on the Territories Conquered from the Paishwa (Calcutta: Calcutta Government Press, 1821), 100Google Scholar.

22. Morris, Cases, III:26.

23. Ibid., 294.

24. Morris, Cases, VI:396.

25. Morris, Cases, IX:255.

26. Ibid., 255.

27. Morris, Cases, V:387.

28. Morris, Cases, I:469.

29. Morris, Cases, VIII:7.

30. Morris, Cases, III:77.

31. Morris, Cases, I:417.

32. Morris, Cases, IX:455.

33. Morris, Cases, X:201.

34. Morris, Cases, III:19.

35. Morris, Cases, V:205.

36. Morris, Cases, I:244.

37. Morris, Cases, X:162.

38. Morris, Cases, II:77.

39. Ibid., 85.

40. Morris, Cases, III:53.

41. Morris, Cases, VIII:171–78.

42. Ibid., 494–97.

43. Morris, Cases, IX:315.

44. Morris, Cases, V:387.

45. Morris, Cases, III:475.

46. By far the most detailed account of this practice in England is provided by Oldham, James, “On ‘Pleading the Belly’: A History of the Jury of Matrons,” Criminal Justice History 6 (1985): 1–64Google Scholar.

47. In England, in cases of divorce or annulment, juries of matrons also could be empaneled to evaluate a wife's claim to virginity resulting from her husband's impotency. See Murray, Jaqueline, “On the Origins and Role of ‘Wise Women’ in Causes for Annulment on the Grounds of Male Impotence,” Journal of Medieval History 16 (1990): 235–49CrossRefGoogle Scholar. In India, however, this appears not to have been the case. In the single case reported involving a divorce for impotency, the wife was directed to “act according to her religious law” rather than the courts. See Harrington, Cases, II:216–17.

48. Ghosh, Durba, Sex and Family in Colonial India: The Making of Empire (Cambridge: Cambridge University Press, 2006), 185CrossRefGoogle Scholar.

49. Morton, T. C., Decisions of the Supreme Court of Judicature at Fort William in Bengal (Calcutta: Samuel Smith & Co., 1841), 260–61Google Scholar.

50. Bellasis, A. F., Reports of Criminal Cases determined in the Court of Sudder Foujdaree Adawlut, of Bombay (Bombay: Printed at the Government Press, 1849), 113–15Google Scholar.

51. The Friend of India, April 25, 1861, 457.

52. Prinsep, H. T., The Code of Criminal Procedure (Act XXV of 1861) and other Laws and Rules of Practice, 2nd ed. (hereafter 1861 Code) (London: Thacker, Spink, & Co., 1868)Google Scholar, § 385 does not require specifically the civil surgeon to examine pregnant convicts, but the various court rulings outlined by Prinsep indicate that this quickly became established practice. See Prinsep's annotations at 192, 195.

53. Harrington, Cases, III:412–14.

54. Morris, Cases, V:695–96.

55. Morris, Cases, IX:400.

56. Roberts, Simon, Order and Dispute: An Introduction to Legal Anthropology, 2nd ed. (New Orleans: Quid Pro Books, 2013), 162Google Scholar.

57. See Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998), 83–85Google Scholar, where the “constructed tradition” of sati is evaluated.

58. Morris, Cases, V:665.

59. Morris, Cases, IX:314.

60. Morris, Cases, VIII:599.

61. Morris, Cases, V:38.

62. Ibid., 77.

63. Morris, Cases, VII:239.

64. Harrington, Cases, II:88.

65. Morris, Cases, III:53.

66. Morris, Cases, X:393.

67. Morris, Cases, IX:455.

68. Morris, Cases, X:381.

69. Harrington, Cases, II:244.

70. Harrington, Cases, IV:181.

71. On the “pub inquest,” see Burney, Bodies of Evidence, ch. 1 and 3. According to Burney, as late as 1877, the British Medical Journal reported that nearly 95% of inquests in Liverpool still took place in a pub. Ibid., 85.

72. Morris, Cases, IX:219.

73. Morris, Cases, IX: 314.

74. Morris, Cases, VIII:599.

75. Morris, Cases, III:19.

76. Ibid., 428.

77. Morris, Cases, V:159.

78. Ibid,.176.

79. Morris, Cases, III:124.

80. Morris, Cases, X:102.

81. Morris, Cases, III:54.

82. Morris, Cases, V:159.

83. Harrington, Cases, II:489.

84. Morris, Cases, X:101.

85. Morris, Cases, VIII:174.

86. Morris, Cases, III:217.

87. Morris, Cases, VIII:599.

88. See, for example, Morris, Cases, I:469.

89. Harrington, Cases, II:18.

90. Morris, Cases, III:124.

91. Morris, Cases, VI:266.

92. British Parliamentary Papers (hereafter BPP), East India: Acts passed by the Right Honourable the Governor-General of India, in Council, for 1841 and 1842 (London: Ordered printed by the House of Commons, 1844), 39–40.

93. Morris, Cases, VIII:81.

94. Morris, Cases, V:95.

95. Morris, Cases, X:199.

96. Morris, Cases, VIII:260.

97. 1861 Code, § 161.

98. 1861 Code, § 310.

99. On the earlier “jury debate” in India, see Jaffe, James “Custom, Identity, and the Jury in India, 1800–1832,” Historical Journal 57 (2014): 131–55CrossRefGoogle Scholar.

100. BPP, First report of Her Majesty's commissioners appointed to consider the reform of the judicial establishments, judicial procedure, and laws of India, &c. (1856), 140–42; and BPP, Fourth report of Her Majesty's commissioners appointed to consider the reform of the judicial establishments, judicial procedure, and laws of India, &c. (1856), 114–15. Interestingly, in the case of judicial reforms in the Madras and Bombay Presidencies, the Fourth Report recommended the retention of panchayats only in the form of bodies of arbitration. However, this recommendation did not appear in the final 1861 Code. See BPP, Fourth Report, 6–7.

101. See Prinsep's annotation, Code of Criminal Procedure, 159–60.

102. Burney, Bodies of Evidence, 10.

103. 1861 Code, § 161.

104. Chevers, Norman, A Manual of Medical Jurisprudence for India, 3rd ed. (Calcutta: Thacker, Spink, & Co., 1870), 37Google Scholar.

105. Ibid., 37. The original quotation reads as follows: “The institution of Punchayet is a complete failure, for the arbitrators of which it is composed are often men from the dregs of society, selected or rather picked up indiscriminately without the slightest regard as to respectability and power of discretion. These take up their temporary posts very reluctantly, pay no attention to the proceedings at the inquest, and would be glad to get rid of what to them is a great nuisance, by passing any decision they choose. ‘Never differ’ is their motto, and they will all be found on every occasion to subscribe to one and the same opinion.” Moodelly, Ruthnum, “Cases of Poisoning Witnessed in Nellore,” The Madras Quarterly Journal of Medical Science 5 (1862): 311Google Scholar.

106. Harrington, Cases, III:37–38.

107. Ibid., 301.

108. Ibid., 86.

109. Ibid., 129.