The British Raj encountered a complex legal ecosystem in Malabar. Santhosh Abraham writes about the ways in which the colonizers attempted to set up a uniform legal system.
‘Whoever shall kill a Hindu, according to the laws of the Malabar country, must be punished by fine or by confiscation of the property and in the case of repetition, by death. However, a Brahmin is not subject to the death penalty, whereas the above principles are not applied to a Sudra; he should be executed and all his property confiscated’. – Translated statement of a Hindu Pandit1
‘Whoever the Mussalman who shall kill non-believer, that Mussalman cannot suffer death. For such offence, he should only be punished with thirty-nine stripes and for that crime, no other punishment is awarded’. – Translated statement of a Muslim Mufti 2
‘All acts of murder without just cause should be treated as a capital offence and that capital punishment could be inflicted in the usual manner on such convicts’. – Declaration of the Supervisor, the Chief Magistrate 3
In 1798, a murder case was brought to trial at the Foujdari Adalat (Criminal Court) in Calicut: a Muslim resident of Malabar was charged with the murder of a Hindu native. The remarks above reflect divergent interpretations of this offence under Hindu, Muslim and British colonial legal codes in late 18th-century Malabar. The existence of multiple and contradictory legal systems was a major challenge to the colonial government as it attempted to establish uniform legal administration. How could cases be resolved in a consistent fashion when there were differing interpretations of crime and punishment?
The year 1792 was a turning point in the history of Malabar, as the region was brought under the control of the British Indian colonial state after the Srirangapatanam Treaty between Tipu Sultan of Mysore and the English East India Company. As in the other Indian colonial territories, the British in Malabar used their power and a variety of ideological and governance weapons to establish themselves in the region. The making of new ways of administering justice was one of the new aspects of colonial governance. However, the making of a new rule of law in Malabar was not a simple and uni-directional process; it had to reconcile contradictory interpretations of law through discussion and debate. The aforementioned opinions are part of one such dialogue in Malabar. First, I look at how newly established colonial legal institutions tried to bring together indigenous and colonial legal systems. Second, I delve deeper into the 1978 murder case, looking at how the British government negotiated between Hindu and Muslim legal codes.
As part of its efforts to subsume indigenous legal codes into a colonial legal system, the British established a new judicial zone in Malabar with courts, subordinate courts, and Darogha Courts (native courts). While a Chief Magistrate’s court, serving as a supervisor, was set up at Calicut, two superintendents (Magistrates) were given the power to discharge civil and criminal justice in Tellicherry and Cherpulassery, the northern and southern divisions, respectively. The establishment of native jurisdictions or the Daroghaships was an important innovation that the Company undertook in the region of Malabar. Seven local Daroghaships (called Cutcherry among the natives) were established in the district of Malabar–Canannore, Quilandy, Tanur, Tirurangadi, Ponnani, Chettuvai, and Palghat. 4
The Daroghaship or Cutcherry comprised a hierarchy of officials, all recruited from among the natives rather than the colonizers. Darogha was given the police and judicial powers, i.e, the power to arrest and try the culprits. The other officials included the Maulavi, Pundit, Karyasthan (attender to Pundit), Serishtadar, Kanakkapilla (native clerks), Nazir (Courts’ envoy), Kolkar (armed Mappilas and Nairs) and the peons.5 Their appointment was determined by the chief Magistrate. The Daroghas were declared to be ‘guardians or protectors’, characterized by ‘their total usefulness to the British or to the country as police officers’6 in different townships of the region.
The appointment of Daroghas proclaimed two sets of rulers within the region – the British and the native – working in cooperation, but for a single government. However, the jurisdiction of the native Daroghas was limited to giving verdicts on petty offences such as the use of abusive language, minor assaults, and slight affrays. The native judges were advised to punish the culprit with imprisonment not exceeding twenty-five days, and no capital sentence was to take effect within the province of Malabar without the approval of the Supervisor. In 1797, the Company officials proposed the abolition of Daroghaships as they became the centres of oppression, instead of organizing the courts and improving the administration.7
Along with the appointment of Daroghas, Malabar at this time also witnessed the birth of new formal institutions like Vakils (Pleaders), Registrars and Peons (attendants) in the courts who became the real negotiators and links between the colonizer and the colonized. While the positions of the Vakil and the Peon were continuations of Mughal administrative institutions and practices, the office of the Registrar in the courts was new, modelled on the English legal institution. In Mughal India, the Vakil was the term for people with good advocacy skills or a high government official who had a wide knowledge of local political, administrative, religious and judicial structures. They also represented a petitioner before a decision-making body. The Registrar, on the other hand, was an administrative official in English formal institutions who was responsible for keeping records and registers. In the cases of Vakils and Peons in the courts, the British made these institutions more formal in Malabar, with clearly defined duties and even uniforms. For Peons in the court, the British instituted that ‘all public peons shall constantly wear badges, to distinguish them from others. It is hereby further provided that the badges shall be all of one general form and have cut on them in the Malabar language, in the words, “The Peon of the Diwani or Foujdari Adalat“‘.8 This was, in fact, a crucial shift in the judicial system in Malabar, as such a system did not exist during the pre-colonial period.
While the first moment of colonial law in Malabar was related to the establishment of legal institutions, the second moment was visible in handling indigenous law in the newly established courts in Malabar. To go back to the opening: in the year 1798, a murder case of a Muslim native by a Hindu native was brought to trial at the Foujdari Adalat (Criminal Court) in Calicut. The opinions invited represented three of the important aspects of the legal history of the region: Hindu law, Islamic Law and British law.
In the case of Hindu law, capital punishment was meted out only for repeated offences. Brahmins, if found guilty, were never put to death, and were only expelled from caste and country.9 In the case of Islamic law, since Islam regards non-Muslims as on a lower level of belief and conviction, if a Muslim kills a non-Muslim, the punishment must not be retaliatory death. It is in this scenario of differences in legal opinions and varied practices of indigenous criminal law in Malabar that the British recommended changes. In this case, the British Magistrate’s statement proclaimed that ‘neither humanity nor enlightened justice exists in Hindu and Muslim criminal jurisprudence, and these should be amended subject to the reversion, confirmation or abrogation of the English superiors, on the basis of humanity and right reason.’10
Here, we can see colonial interpretations subordinate existing hierarchies of caste and belief to the British colonial values of ‘humanity and right reason’. As a result, the criminal legal sphere in the early decades of Malabar became a conflict zone. It is also noted that the situation in Malabar was not different from the other Indian regions where similar colonial involvements were seen. In the words of Bernard Cohn, ‘in attempting to introduce British procedural law in Indian courts, the British confronted the Indians with a situation in which there was a direct clash of values of the two societies.’11 These conflicts of legal procedures and ideologies during the first four decades of British colonial rule in Malabar ensured that impositions of colonial law were regularly challenged and undermined until the introduction of the Indian Penal Code in 1862.
About the Author: Santhosh Abraham is Assistant Professor at the Department of Humanities and Social Sciences, IIT Madras and has a research interest in legal and medical history. He can be contacted at firstname.lastname@example.org