Caste in India: The Facts and the System c6.s7: VI. Organization and Jurisdiction

Caste in India: The Facts and the System c6.s7

Language: English

VI. Organization and Jurisdiction

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H OWEVER strong the blood-bond may be within the caste, it is the corporate organization and recognized jurisdiction which manifest and guarantee its perpetuity.

Beames ¹ has related an occurrence of which he was a witness which puts us into close touch with the attributes and mechanism of this organization. It deserves to be briefly quoted. It was at Purneah; a man of low caste, a *dhobī*, or washerman, was suspected of having illicit intercourse with one of his aunts. He denied it, but refused to banish from his house the supposed accomplice. He ended by openly marrying her. None of his caste consented to be present at the marriage and public feeling ran very high against the couple. Finally all the members of the caste living in the district, several hundred in number, assembled and elected a large jury, which, after careful examination of the facts, brought in a verdict of guilty against the accused parties and ordered their exclusion. A circular duly signed by the judges, and passed from hand to hand, informed every one in the neighbouring districts who belonged to the caste that such-and-such a person, having been convicted of immoral conduct contrary to hereditary practices, had been deprived of all his rights, and that, in consequence, no one might eat, drink, or smoke with him, under penalty of sharing his fate. The unhappy victim, having endured the effects of the sentence for some weeks, soon found life intolerable. After a short time he gave in and separated from his wife. He was obliged, by way of expiation and fine, to give a great feast, at which the whole brotherhood ate with him, and from that time onward he was reinstated in his rights.

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¹ Acc. to Elliot, I, 281-2.

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This organization, be it understood, is regulated by custom alone; it is, therefore, subject to all the uncertainties and incoherences of those institutions which time, circumstances, even casual caprice may modify, without being held in check by any strictly legal restraints. Its essential elements seldom vary; they are those which governed the organization of that wider family, the clan. In India they are to be met with not only in the caste, they are found also in the constitution of the village with or without common property. Even such distant observers as ourselves can see that its machinery, side by side with that of the caste, gives rise to considerable confusion.

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The two stable elements are the Chief and the Council, or *Panchayat*. There are, it is true, certain castes which we are told have no chief, for example, the Kachis of Poona.¹ This is undoubtedly a very rare exception, which would confirm what is in any case apparent, that the principal authority is vested in the representative council of the caste. In reality it resides in the caste as a whole, and this rudimentary constitution is singularly democratic. If we seek an example of jurisdiction directly exercised and of penalties inflicted *proprio motu* by a chief or his representative, we shall find it in a caste of Jainas, essentially ecclesiastic, the chief of which is a veritable Guru, the superior of a religious fraternity rather than the chief of a caste.² I, for my part, have difficulty in believing what Elliot reports : without making any positive statement, he asserts of the chiefs of the Banjara caste that their authority has never been strong enough to inflict capital punishment.

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¹ *Poona Gazetteer*, I, 284.

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² Steele, *Hindoo Castes*, p. 102. In this respect we may compare the jurisdiction exercised over the Brahmans in one district by certain Brahmans, heads of Maths or monastic colleges, or *Dharmādhikārins*, juris-consults, treated with special respect (Steele, pp. 88-90).

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These chiefs receive, according to class and region, a great variety of titles : Mihtār, Chaudhrī, Nāīk, Paṭel, Parganāit, Sardār,³ etc. The office is generally hereditary, and, except in a case of forfeiture which justifies deprivation and a new choice, is handed down in the same family. The caste hardly ever intervenes in an election, except in default of an heir. The area over which the chief exercises his authority varies. As a rule, on account of the dispersion of the majority of the castes, it can extend only to a larger or smaller section of any one of them; naturally it does not exclude plenary assemblies in times of crisis.

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³ Steele gives the most invaluable information about them and about the internal functioning of the castes in the Deccan. I refer to his book once for all.

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The chief enjoys honorific privileges, in which his wife is associated, and material advantages, such as presents, a share of certain revenues, and exemption from certain taxes. In his province he presides at all festivities—at those which accompany marriages or follow funerals, and those concerning the village temple. The perquisites attached to the office result in the fact that in some castes at least it can be sold or pledged. The chief’s functions have a touch of the patriarchal; he calls together and presides over the caste, arranges marriages and acts as arbiter to settle litigious cases. In certain merchant-classes we see him acting as intermediary and guarantor in business.¹ His dignity is also protected against any disobedience or lack of respect by the *Panchayat* which assists him.

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¹ Elliot, loc. laud.

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He is in fact always surrounded by a council of elders consisting of the most highly esteemed representatives of the caste.

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This council is not necessarily permanent; it can, according to circumstances, be specially appointed in view of any special affair. Whatever right of action it may have or be specially granted in certain cases of marriage and divorce,¹ it seems that its authority is rarely decisive. The last word is with the caste-assemblies.

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¹ Atkinson, *North-Western Provinces Gazetteer*, quoted by V. N. Mandlik, p. 454.

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The extent of these varies in accordance with circumstances, but they appear in general to act as representing the whole caste and invested with its plenary authority. Called together by the chief, spontaneously or on the invitation of several members, they alone are qualified to make decisions in collaboration with him in grave cases—such as temporary or absolute exclusion and disputed points of common law. All the men old enough to conduct their own affairs are summoned to it. The right to be represented by proxy in the discussion and in the vote is not admitted everywhere. Questions are decided finally by the majority of votes; but, for want of an effective power of coercion, it happens that parties more or less equal in numbers come to a deadlock, thus holding the point at issue in suspense.

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How indeterminate is this minor parliamentary power may be imagined without my labouring the point. It will be sufficient if we glance at its main outlines. We recognize in it the principal characteristics which reappear at all sorts of points in the life of tribes which have not yet attained to a real political organization. And we shall not be surprised that analogous assemblies and usages exist among the non-Aryan nomad peoples and among the castes which are included in the Brahmanic system.¹

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¹ Ibbetson, § 587.

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The interesting point is the competence of the caste; it is from this angle that we may expect the most instructive information about the true character of the institution. It is at once civil, domestic, and judicial.

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The caste intervenes on the majority of solemn occasions, which, in our view, concern family life alone. I am speaking only of solemn festivals which bring the caste, or at any rate its chief representatives, together on occasion of births ²—sometimes even at a certain period of pregnancy—weddings, and funerals.³ These gatherings are not, however, so trivial as they may appear; they must not be regarded as ordinary diversions attended voluntarily; indeed, in certain classes we are assured that their omission entails even exclusion from the caste.¹ But I am thinking especially of the intervention of the caste in marriages; its authority in this matter is practically uncontested.² It manifests itself in several singular customs. Among the Ghisadis,³ for example, the father of a marriageable son gathers his caste-companions together for the purpose of finding him a wife, and among the Kanoji Brahmans of Poona,⁴ an assembly of the caste arranges the marriages of its people. Where divorce and second marriage are allowed it is with the assent and sanction of the caste,⁵ despite the efforts of English judges to-day to limit its power on this head.⁶ Its role in the procedure of adoption is perfectly natural and logically indicated. In fact, the caste’s consent to adoption is generally considered necessary. Not only does it sometimes intervene to facilitate it, but an adoption of which it has not been duly informed is generally regarded as null and void. Still more necessary is its consent in the case of adoption by a childless widow.⁷ In all such cases the caste associates itself with the relatives, whose presence is necessary in token of acquiescence. In this light it appears strictly as an extension of the family; it typifies the general family-council. By this right also, if need be, it makes the necessary arrangements for the guardianship of orphans; in default of relations this guardianship devolves upon the chief.¹

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² E.g. Poona Gazetteer, I, 187, 277.

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³ Ibid., I, 382, 393, 428, etc.

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¹ Among the Sonārs of Poona, Poona Gazetteer, I, 374.

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² V. N. Mandlik, p. 409.

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³ Poona Gazetteer, I, 335.

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⁴ Ibid., I, 169.

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⁵ V. N. Mandlik, pp. 428, 434, 454; Steele, p. 170.

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⁶ J. S. Siromani, Commentary on Hindu Law, p. 184.

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⁷ Steele, p. 184 et seq., passim.

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¹ Steele, p. 191.

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It is also a veritable court of justice. Cases are cited in which it has passed sentence of death.² They are already ancient history, and to-day, under the English Government, such a thing would never again be possible. But theoretically its jurisdiction extends to real crimes; the murder of a Brahman, of a woman, or of a child are among the heinous sins into which the caste would have a right to make inquiry.³ In actual fact its power is exercised much less on crimes or breaches of common law than on the rules peculiar to the caste. These rules appear to us both meticulous and trivial, but their strict maintenance is very important to the caste and equally absorbing to consciences held captive for so long in this network of exacting observance. It is a jurisdiction of manners and usages. It takes care that customs are faithfully observed, and punishes infractions which come to its notice. In its domain it is supreme; the decisions, favourable or otherwise, of the civil magistrates disturb it but little.⁴

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² Dubois, I., 34-5.

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³ Steele, p. 150.

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⁴ Jogendra Chandra Ghosh, *Calcutta Review*, October 1880, p. 282.

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It would be difficult to draw up even an approximate list of the offences against which the judicial procedure of the caste is exercised. Even those common to all—the use of certain foods regarded as impure, intercourse with castes whose contact involves pollution, above all, meals taken in common with them—are open, according to the case, to a multitude of distinctions, none of which is without importance. The use of fermented liquors is not everywhere prohibited nor punished to the same extent. Adultery is proceeded against, but it is, in the case of a woman, viewed in a very different light, according as the accomplice is a man of high or low caste.¹ Other cases are more particularly associated with certain groups; there are some where prostitution entails punishment, since it is not looked upon as the normal profession of the caste. To neglect the funeral of a relative and to kill a cow are, on the contrary, offences so grave that almost everywhere they call forth the utmost rigour of the law. On the other hand, only a certain number of the castes are so strict as to punish the man who has been guilty of failing to marry a daughter before the age of puberty,² or of neglecting, beyond a certain date, the initiation of his son and the investiture with the sacred thread.³

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¹ Steele, pp. 173-4.

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² Ibid., pp. 163-4.

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³ V. N. Mandlik.

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This jurisdiction is based solely on custom, and is necessarily thwarted by the rival action of laws administered by the territorial power, however weak it may be; it is split up amongst a number of unequal and independent bodies which are sometimes hostile to one another. It cannot be wondered at, then, that such a jurisdiction is capricious. Moreover, in our own time, under the strong hand of British administration, these tribunals are losing their hold, like many of the ideas and prejudices on which their authority is based. This is not, however, a post-mortem that we are conducting: the institution is falling into decay, but its motive-force is not broken: it still works, although slowly and irregularly.

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We must add that we have only vague information as to detail. For a man to lay his own hand to the plough or to cultivate vegetables is, for example, throughout the high castes, considered to entail derogation. Can such offences as these, in certain groups, be made the subject of formal condemnation? I think so, but I would not venture to affirm it. What is clear is that the punishment of the caste falls essentially upon irregularities which, bearing either on questions of marriage and heredity, on observances of purity, or on customs peculiar to the group, directly affect its reputation.

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In such cases the caste in its decisions employs graduated methods of repression. It imposes fines, generally not very heavy and assessed in proportion to the means of the persons, as is fitting in a rather poor country. The proceeds are applied either to some charity or to communal festivities.¹ Among its characteristic sentences are the performance of purificatory penances, the provision of repasts to which the condemned must invite the caste, and finally and above all, absolute or temporary expulsion. The punishment varies not only, as one would expect, with the offence, but also according to custom with the degree of their humiliation. The caprice of the judges and certain personal considerations are allowed more or less openly to play their part. A certain case will in one place entail perpetual expulsion, whereas in another it will seem adequately punished by a mild penance. The available information is not consistent.

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¹ E.g., ‘among the Vānis’, *Poona Gazetteer*, I, 277.

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Irrevocable expulsion is, I think, becoming more and more rare. Even for very serious offences it can scarcely ever be maintained against people who have some influence over their fellows or sufficient resources wherewith to disarm their severity. It is resorted to chiefly in cases where there is a question of punishing prolonged intercourse with despised and impure classes, or real crimes.

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It is, as a matter of fact, a much more dreadful punishment than would at first appear. As the Abbé Dubois ¹ says :

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¹ Mœurs, I, 36.

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‘ This expulsion from the caste, which occurs in cases of breach of customary usage or of some public offence which would dishonour the whole caste if it remained unpunished, is a kind of civil excommunication, which deprives the person who has the misfortune to incur it of all intercourse with his fellows. It renders him, so to speak, dead to the world. . . . With the loss of caste, he loses not only his relations and friends, but sometimes even his wife and children, who prefer to abandon him entirely rather than share his ill-fortune. No one dare eat with him nor even offer him a drop of water. . . . He must expect wherever he is recognized, to be avoided, pointed at with the finger of scorn, and looked upon as a reprobate. . . . A mere Śūdra, provided he has some trace of honour and scrupulousness, would never join company nor even communicate with a Brahman thus degraded.’

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The ceremonial of expulsion is significant : the funeral ² of the guilty person is conducted in due form ; it is indeed civil death, with all its consequences. If it be a man who is expelled, his wife and children can only remain pure and keep their place in the caste by abandoning the outlaw, and he is disqualified from inheriting¹ and adopting.² This is perfectly natural, since the children even who are born to him after his eviction share his fate; they cannot be reinstated unless they leave their father and also submit to a penance.

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² For actual rites, see, e.g., Steele, p. 173.

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¹ Although the rule is perhaps not absolute (Steele, p. 155), and, above all, is no longer recognized by English law.

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² Steele, p. 183.

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The penances are serious; they may take the form of a pilgrimage to some renowned temple, immersion in the Ganges, or a mere fast. The guilty person may be condemned to have his moustache shaved off, to be branded, or to have his tongue burnt; or else he may have to swallow the beverage called *pañchagavya*, which is supposed to have purifying powers, but which sounds very disgusting, being a mixture of the five products of the cow—milk, whey, butter, and the rest. In any case he must humble himself before the assembled caste and offer public evidence of his docility and repentance.³ Above all, he must offer to his caste a repast, of which he bears the expense.

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³ Ibid., p. 150; Dubois, I, 41 et seq.

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We should be doing the Hindus an injustice were we to attribute to their instincts of sociability alone the importance which they attach to this kind of banquet. The desire to indulge in noisy collective rejoicings, a taste which has often been noticed even in those who have least ease and pleasure in their daily lives, may well have made this penalty more frequent, but it certainly has a more serious and justifiable origin. If exclusion from the common meal is one of the most apparent and inevitable results of degradation, the admission of the rehabilitated culprit to the table of his fellows must be the public consecration of his reinstatement. The two cases are converse but complementary; both spring from the same source, which will be dealt with later, and, let it be said at once, from loftier considerations than a hasty judgement would at first be inclined to admit.

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I have spoken up to now as if this private justice were exercised solely by the caste itself or by its authorized representatives, in the name of its traditional usages. The facts, indeed, point to this conclusion; but these customs have been incorporated in the religious code of Brahmanism and are applied in the name of a religious authority which finds its power, if not its origin, in written tradition. Thus it happens that a Brahman often directs the procedure; the caste or its council makes its decisions with the help of his learning and intelligence. Sometimes even the Brahman appears to act alone; in fact, a more or less tacit delegation takes place.

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Brāhmaṇa — Sanskrit