SOUTH ASIA
RESEARCH
www.sagepublications.com
VOL 23 NO2 NOVEMBER 2003
Vol. 23(2): 115–134; 034681
Copyright © 2003
SAGE Publications
New Delhi,
Thousand Oaks,
London
CUSTOM AND LAW PRACTICES IN
CENTRAL INDIA:
SOME CASE STUDIES*
Livia S. Holden
SOAS, UNIVERSITY
OF
LONDON, UK
This article features qualitative case law studies based
on extensive fieldwork in rural Madhya Pradesh in India. It
focuses on perceptions of law in the dispute-settlement process
at the grassroots level, highlighting the features of legal consciousness especially in relation to forum-shopping strategies
between traditional and official jurisdiction. It shows that at the
local level customs are reinterpreted in the light of modern
values. Yet they remain the main reference point in the struggle
between official law and traditional law.
ABSTRACT
KEYWORDS: customs, customary law, excommunication, expiation,
Indian legal system, legal consciousness, official law, panchayat,
pilgrimage
Introduction
Custom, as a source of law, sits uneasily with the positivist lawyer. When the
judge applies customary rules, the priority of written law is questioned and, with
it, so is the differentiation between the making of the legal rules and their
application. In many legal systems, however, there are some areas where, in the
absence of any written law, customs are recognized as the principal source of law.
Hence custom is a permanent subject of debate, raising the question of how to
achieve the translation of facts into law. Countries which were, or still are, under
colonial influence are characterized by the coexistence of the imported rule with
the native legal system, often called ‘customary law’. There, custom is simply the
non-written law of native people.
In India first the Mughals, then the British added their regulations to the local
customs and to the Brahman tradition without annihilating each other. Thus, in
India, ancient principles of justice, customs and western institutions coexist in an
uneasy legal pluralism. This multi-layered legal system is particularly apparent
nowadays in rural justice-making where conflicts between state and traditional or
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semi-traditional jurisdiction lead to forum-shopping strategies. This paper describes the relationships between the different sources of law with a specific focus
on the perception of law in the dispute-settlement process, aiming to map the
local features of the legal consciousness through qualitative case law studies. It
opens with a description of the area where the fieldwork has been carried out and
a short presentation of the actors participating in the research. Thus, it outlines
the system of justice-settlement operating at the village level, concentrating on
case law governed both by traditional and official jurisdiction. Finally, in
highlighting some of the principles governing village justice-making, this paper
shows that socio-legal crisis situations in rural India are rather oriented towards a
contingent and contextual reinterpretation of customary traditions in the light of
modern social, political and financial expectations of local groups, and official law
tends to remain in the background as a last recourse.
The Area and its People
The data presented in this paper was collected through extensive fieldwork
conducted mainly in the Shivpuri district of Madhya Pradesh during 1995–96.
There were several stays in Piparsod, the village that the French anthropologist,
Jean-Luc Chambard, has been studying for over 40 years. Prof. Chambard not
only encouraged me to undertake the study of customary law in India, but he also
offered to carry on the research in the place of his fieldwork.1 Since then, Shivpuri
district has become the focus of my researches and some of the inhabitants of
Piparsod transformed from informants into collaborators for actively participating
in research projects.
Piparsod is a village with about ten thousand inhabitants, located in the
Shivpuri district of Madhya Pradesh. It was founded in the beginning of the
sixteenth century and this relatively recent foundation has allowed the development of the village to be traced from its origins with great accuracy. This village is
characterized by having two castes traditionally owning the property of the land:
the Kirars and the Brahmans. Kirars are the true founders of Piparsod. Almost 50
years after the village was founded, they conceded half of their land rights to a
group of Brahmans who came from the north. The transfer was sealed by a
memorable meal, based on boiled food usually shared between members of the
same caste.2 This double dominance is upheld over the castes who are traditionally
employed as servants: some of them to Brahmans and some to Kirars.3 Similarly,
the ritualists who perform the death ceremonies and expiations on the Ganges
river, for the people of Piparsod, are divided due to reasons of competence based
both on the caste and the territorial origins of their clients. However, the village is
inhabited by other castes such as tradesmen, gardeners, carpenters, cadastral
officers and so on, and a few Muslim families who enjoy a relative independence
from the dominant castes.
Farming is still the main activity of the village, which in spite of a strong
population growth and the rough climate can preserve a foodwise autonomy and
even export a small quantity of grains. However, the most important sources of
income in the village are the ‘outside jobs’, that is in the district town of Shivpuri,
Holden: Custom and Law Practices in Central India
117
or in the nearby town of Pohri. Brahmans were the first to have benefited from
these ‘outside jobs’ but thanks to the policy of reservation, the ‘Untouchables’ are
more frequently appointed to government posts. Thus strategies of social ascent
combine or alternate with the rediscovering of ‘backward’ origins and the
adoption of Sanskritized traditions such as vegetarianism, dowry and the nonsanctioning of divorce and remarriage.4 Piparsod has gradually become more
urbanized, which keeps provoking conflicts between urban culture and traditional
rural thinking. Significantly enough, however, this conflict has rarely led to the
traditional customs completely disappearing, but instead to their revival and
renewal, with new social expectations; often perpetuating typical inequalities but
sometimes offering new and peculiar tools of action.
Political life is developing remarkably. Piparsod experienced a concentration of
local power in the hands of one Brahman for a long time. However, the
improvement in the financial situation of the lower castes and the reservation
policy has helped the latter to become more involved in politics and to gradually
gain power in the village. Closer contacts with national parties have led to the
forming of a new class of politicians whose influence is linked with broader
campaigns at a national level. Political leaders, linked to national parties, are
jeopardizing the social status of the buzurg (elders, or experienced people) whose
families have been held in esteem for as long as anyone can remember in the
village. At present a shift of power from the old to the new generation of buzurg
seems to be occurring and this situation may present a good opportunity to
observe the evolution of the political leaders’ strategies that are aimed at winning
the population’s support. The family and the caste, together with a comfortable
life, are no longer the only ingredients for success in the political life of the
village. This became clear in 1994 in the election of the statutory panchayat,
whose winner, a Brahman of the BJP (Bharatiya Janata Party, or Hindu
Nationalist Party), had to ally himself with the Untouchables to get the majority
of votes.
When I first arrived in the village at the end of 1995, it was almost two years
after the statutory panchayat elections, which defeated the ancient head, a
Brahman, who had been in charge for almost 40 years. People in the village still
acknowledged his influence and were uncertain about following their new council
head who was promising benefits and facilities for the community. The competition between the old and the new leaders was immediately reflected in the
administration of the system of justice, sometimes causing a clash between official
and traditional jurisdiction. Both of them were operating in the village and both
of them were alleging the inefficacy of the other. The boundaries between
statutory and traditional jurisdiction were blurred and offenders were sometimes
doubly sentenced by the state and the village councils. Hence it was a good
opportunity to observe how the new values were to be introduced and how they
would affect social relationships.
The following data was collected through interviews recorded during a sevenmonth period between October 1995 and April 1996. I did not choose a key
informant, and the more collaborative persons among the people involved in the
dispute-settlement became the principal reference for my inquiry. The interviews
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were always conducted in a conversational, semi-structured style allowing the
interviewees a great freedom in the development of their discourse. This perfectly
suited the status of ‘sister’ or ‘daughter’ that was given to me by the majority of
my interlocutors. The relationships built with the interviewees were all varied
owing to a multiplicity of factors such as gender, class, age, race, status and
financial standing. Furthermore, less easily quantifiable elements such as personal
feelings equally affected the research. However, my aim was not to inquire into
the truth of the related facts but into the conceptualization of these facts by the
people involved. Some showed an increasing interest in the progress of the
research and gave me substantial guidance. Their contribution influenced the very
structure of my work. Consequently they should be considered more as
collaborators than mere informants and my presentation here is aimed at both
acknowledging their central role in this study, and at contextualizing the collected
data.
Shiv Narayan Sharma, son of a teacher and previous secretary of the local BJP,
used to keep a shop in the district town until his election to the post of head in
the statutory panchayat. He dared to ally with the Untouchables despite criticism
by some old-fashioned elders whose authority was never based on the outcome of
any political campaign. In doing this, he enforced in the village a majority-based
system, whose consequences were to be seen both in the local government and in
the administration of justice. To the great contempt of some of the village elders,
lower castes and Untouchables were more and more involved in discussions about
the major matters of village life such as public health and development. They also
began to feel free to call upon the head of the statutory panchayat for the
settlement of their disputes, consequently forming an unusual jurisdiction of a
mixed body of elected members and traditional elders (see section below on An
Untouchable’s Matter). Hari Shankar Sharma, founder of a farmers’ cooperative, is
one of the ‘progressive farmers’ of the village because of his interest in new
technology. He is a BJP member and, in spite of not having any official role in
the panchayat, he is often called upon for advice. Being financially well off and
educated (he completed a degree at the Shivpuri University), he appears to be
quite independent vis-à-vis the common thinking of his caste. He has been
involved in my research from the beginning, looking at it as the way to preserve
an important aspect of the traditional Hindu culture. Sarvan Lal the barber was
one of the best sources of detailed information in dealing with the administration
of justice and the cases to which I was inquiring. He is the brother of Nathuram,
the barber who is also the servant and informant of Prof. Chambard. Sarvan Lal
introduced himself to me through the medium of the women in his family. Our
relationship has been constantly influenced by the presence and the role of his
brother, who has the tendency to claim a kind of exclusivity in any relations with
western people. Sarvan Lal enjoys a more comfortable situation in life than his
elder brother, because he does not have the economic burden of several daughters
to be given in marriage. His sons live and work in the district town. Thus, the
possibility of leaving the village for days at a time allows Sarvan Lal to feel less
involved with the village gossip. In spite of his dominating worries about people’s
criticisms, he showed, from the beginning, an exceptional ability to give full
Holden: Custom and Law Practices in Central India
119
accounts of the major recent crimes in Piparsod. The more he spoke, the more he
seemed to be transported by his own words, forgetting his worries and showing an
unexpected criticism toward high castes and orthodox Hindus. Sarvan Lal pointed
out the peculiar relationship between Piparsod and a little town on the Ganges
river, where the peasants go on pilgrimage in order to bring the ashes of their
deceased relatives or, for expiating their sins in execution of the decision upheld
by traditional law. This information allowed me to extend the research to the
execution of traditional jurisdiction and to discover the legal features of the ritual
pilgrimages on the Ganges.
Thus my fieldwork ended in Soron, a little town of Uttar Pradesh, with all
the appearance of a village. The latter is famous for being a pilgrimage site, as
attested to by Kane’s History of Dharmashastra where it is cited by the name of
Sukara (Sk. Sūkar or boar).5 According to the inhabitants’ accounts, Soron, the
third avatar of Vishnu, was born in Ukala (present-day Soron) in the guise of a
boar in order to defeat the demon Hiranyaksha, who sent Pritvi (the earth) into
the bottom of the ocean. Hiranyaksha, who was killed by the boar, reached
deliverance in Ukala on the second day of the funerary rituals in the second
fortnight of the lunar month. Hence, Soron owes its fame to the fact that corpses
would become dust on the day after their arrival in the town. At the time of my
visit the life of this little town was regulated by the arrival of the buses that were
bringing the pilgrims who wanted to perform the sacred ritual of death or
expiation. Thus, as a pilgrim myself, I could meet some of the Brahmans who
belong to a 400-year-old line of ritualists maintaining a purohit–jajmān (family
priest–sacrificer) relationship with the people of Shivpuri district.6 This was an
unexpected experience of participant observation culminating with a ritual bath in
the Ganges river, which allowed me to add some important insights to the study
of justice in rural India.
Administration of Village Justice: Some Historical Data
Attempts to establish, in India, a judiciary system inspired by indigenous legal
values go back to the end of the nineteenth century, when the British took the
administration of justice into their hands. With the Regulation of 1772, where
Hindu law had to be applied, the British judge was to be assisted by a native legal
specialist. However, at the end of the nineteenth century, these courts were
rejected for their incorrect manipulation of ancient Hindu texts. Some claimed the
necessity of a fresh legislation made by the British, others maintained that custom
was the only possible law of India: this controversy has been ongoing ever since.7
From 1920 until 1947 the British implemented village assemblies (panchayat)
with a competence in minor penal and civil matters. However, they were far from
being based on the indigenous legal values by which they should have been
inspired.8 In this sense statutory panchayats in India do not have any roots in the
original native legal system.
In spite of the hostility of B. R. Ambedkar (architect of the Constitution of
India) towards the restoration of panchayat as a local self-government body, the
Constitution of India (Art. 50) provided village councils with separate bodies for
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judicial (nyāya panchayat) and administrative competencies (grām panchayat). As
soon as the first statutory panchayat was created, Madhya Pradesh introduced the
nyāya panchayats, but the latter ceased to exist in 1981. They did not succeed in
offering an acceptable option to official law courts or traditional jurisdiction
either.9 However, some of their judicial competencies have been transferred to the
village councils who in many places are operating without superseding the
traditional jurisdiction.
Since the introduction of the statutory panchayat in 1950, the notion of law
as originating from a government body as well as from traditional jurisdiction was
perceived in more concrete terms by the villagers of Piparsod. Peasants’ awareness
of the multiplicity of sources of law is clearly attested to by their terminology:
depending on the context they use śāsan (rule, instruction, edict), dharm (moral–
religious law) and vyavahār (usage, custom). However, national parties and
government welfare bodies play a role in influencing their thinking. Postindependence reformists and social workers advocate the advantages of the official
jurisdiction and look with paternalism upon traditional jurisdiction. Nationalists,
on the other hand, promote the revival of ancient customs, reinterpreted within
an egalitarian context. Thus, traditional panchayats are often perceived with mixed
feelings by villagers and my research could really start only after they overcame
their reservations about disclosing what could have been considered as the less
edifying aspects of their village.
The introduction of the statutory panchayats meant the end for the head of
the village: the paºtel, whose legitimacy essentially lay in his ownership of the land.
The paºtel was responsible both for tax collection and for the administration of
justice, especially in relation to the cases that involved the whole village. After the
land reforms in 1951 the function of paºtel was abolished and his influence
diminished, empowering the caste leaders and the caste-panchayat. Nowadays in
Piparsod justice is almost independently administrated by both councils: the
statutory panchayat, based in principle on permanent elected members, and the
traditional panchayat, usually but not exclusively linked to the caste, and whose
composition relies on the features of the case and on the people involved. The
first elections for the grām panchayat took place in 1957 in Piparsod, then again
in 1964, 1969, 1994 and 2000. The gap in the law subsequent to the abolition of
the nyāya panchayat was interpreted as a tacit transfer of their judicial competencies to the grām panchayat, which still settles minor cases in penal and civil
matters.
Significantly enough, many of the changes and modifications wrought in the
administration of justice in the last 50 years were reinterpreted in the light of
customary justice by the villagers. Some see, for example, in the new head of the
statutory panchayat, a different kind of buzurg or faislā karnevālā (lit. decisionmaker). The statutory panchayat is also considered as a kind of court of appeal, to
turn to in case of an unfortunate result under traditional law. Surprisingly enough,
this picture presents many similarities with the strategies of justice settlements
observed by Bernard Cohn in the 1950s, when British procedural innovations
were essentially perceived as a way to further the disputes and not as a source of
fair decisions.10 The coexistence of customary and official systems of justice in
Holden: Custom and Law Practices in Central India
121
towns has been pointed out both by anthropologists and lawyers rightly lamenting
the lack of adequate studies in these matters.11 As will become evident in the
following case studies, the reinterpretation of customs following the innovations of
post-independence India makes sense at the village level. In the absence of a
detailed governmental programme, the statutory panchayats initially modelled
themselves on the customary panchayats. Their lack of legitimation in the eyes of
the villagers, however, imbued these government bodies with an overall sense of
failure, and only recently have they begun to gain the trust of the lower castes
who are being empowered on account of their importance as potential electors.
Case Studies
The commonality in the cases I have recorded is the fact that they have been
extensively debated in the village. The first case, involving the repudiation of a
young wife from the Untouchable caste, shows in particular the recent empowering of the lower castes in the village. It is also a good example of the
reinterpretation of customary principles and procedures of justice in the light of
the new democratic values of the statutory panchayats. The case of the killing of a
cow (here, a calf ) highlights the close link between religion, social status and
financial matters. This case points out how something that would be perceived by
the state as an offence of animal rights is considered in the village as an
opportunity for inter-castes rivalries to legitimately resurface. It shows the peculiar
social fragility of Brahmans who, being expected to still be the example of
righteousness in the village, are torn between the efforts to maintain their status
and the contingent needs of contextual convenience. The case of the Brahman
who killed his wife is an example of the difficulty in implementing the uniform
territorial law: after 10 years’ imprisonment, the murderer and all of his family
were still excluded from the community and even the performance of the
expiatory rites did not allow them to be reintegrated into the caste. The case
studies conclude with a collective murder: a case that was never overtly mentioned
in Piparsod for fear that ‘the walls might hear’. It discloses how the power
relationships in the village are balanced between the caste as a self-governing body
and the dominant groups wanting to preserve the village’s morality and through it
perpetuate their own pre-eminent position. It also clarifies the notion of personal
law within the custom itself and in relation to the different communities of the
village.
An Untouchable’s Matter
The case of a young Chamar woman,12 apparently dismissed by her husband’s
family over a question of dowry, would have been ignored in Piparsod, had her
father not had the courage to bring his case to the head of the statutory
panchayat. The young woman had been staying at her parents’ house for two
years already and she was the subject of gossip in Piparsod. Everybody knew that
she had been dismissed by the husband’s family and was sent back to the village
‘khalı̄ kapron meñ’ (with only the clothes that she was wearing). Her son, a few
months old at the time of the repudiation, was being brought up by her mother-
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in-law. After two years, a solution had to be found because the parents feared that
their daughter might be ‘kidnapped’. This expression, however, should not be
taken literally: following an agreement with another man, the woman’s escape,
sometimes in the form of a staged kidnapping, is a customary practice which
formalizes at the same time a customary divorce and a subsequent remarriage.
Such a custom is widespread in many rural areas and has been detailed in legal
and anthropological studies which have highlighted, sometimes incidentally, its
potential as a way of balancing gender inequality and, consequently, the necessity
to explore it further in the peculiar context of South Asia.13 Modern Hindu law
(Sec. 29, Hindu Marriage Act) and recent Indian jurisprudence even recognize the
validity of customary divorce in specific circumstances, but was official law in this
particular case an obvious reference point for the people involved?
There were two possibilities: either the woman could remarry, or go back to
her husband’s family and accept her status as daughter-in-law at the mercy of her
mother-in-law. No similar case had ever aroused such turmoil as none of the
possible solutions necessitated official law and in many cases not even a formal
panchayat gathering, let alone the involvement of a Brahman, head of the
statutory panchayat. Customary divorce should not have been a problem among
Chamars, well known for not sharing the Brahmanic principle of the sacrality and
indissolubility of marriage. However, the contingent social and political situation
in the village, where the Chamars wanted to please their political ally, the
Brahmans, would have made customary divorce inconvenient. The second option,
on the other hand, was not an acceptable alternative for the young woman,
because she did not want to give up the freedom that she had regained at her
parents’ house.
The young man’s parents, feeling that the young woman’s parents had not
given enough at the time of the wedding, were harassing her with impossible
demands. The first-born, being a boy, should have made the parents-in-law happy,
but instead they took the opportunity to demand that the girl’s family should
offer jewels and money on the occasion. Thus, to force the young woman’s parents
to comply with their demand, they sent her back and kept the baby. Time had
passed, but the father who feared he would fall into disrepute because of his
daughter, could not reach a decision. Threats from the family’s in-laws became so
serious that the father started to go around the village in order to get support. On
the other hand, the in-laws were seen several times in Piparsod to be telling
everybody that it was not their fault that their young daughter-in-law had gone
back to her parents’ house. They said that they had always treated her properly
and that no questions had been asked about the dowry, even though the bride’s
parents had not been very generous at the wedding. Finally, the caste panchayat
met in the Chamar ward, inviting the young man’s parents to participate. After a
meal, the in-laws admitted their fault and a compromise was reached: the bride
was to go back to her husband’s family and no more demands were to be made
about the dowry.
A slightly different version of the same story was given by Shiv Narayan
Sharma, the head of the statutory panchayat, who claimed that he was responsible
for the resolution of the case, making no mention of the caste panchayat’s
Holden: Custom and Law Practices in Central India
123
decision. Indeed, the bride’s father, in an attempt to prevent any further demands
from the husband’s family, had asked for the support of the head of the statutory
panchayat. Shiv Narayan Sharma, who could not alienate himself from his
electorate, had called his council (for which he had even issued written summons),
an interesting assembly with elected members and Chamar buzurg sitting together.
For the first time, a matter that was usually exclusively dealt with by the caste
panchayat was brought before the statutory panchayat, but nobody other than the
head of the statutory panchayat and the young woman’s father seemed to be
satisfied.
This case, through all the tensions it revealed, brings to light the fact that
the balance of power between the castes in the village is not in exclusive favour
of the high castes anymore. The elections based on universal suffrage, together
with the policy of reservation, turned the balance of Piparsod’s electorate upside
down because suddenly lower castes such as the Chamars acquired importance on
account of their numerical strength. As we have seen, the Chamars did not delay
using their new power in terms of social mobility but this was not without
influences upon their everyday life. Remarriage customs had to be eliminated in
the emulation of Brahmanic codes of morality without, however, providing the
Chamar community with the knowledge of, and the means of access to, official
justice remedies. This was especially to affect women as men do not need to
divorce before taking another wife, bigamy being tolerated in rural areas. The
young Chamar woman, notwithstanding the evident breakdown of her marriage,
found herself without any recourse other than going back to her in-laws after two
years of separation. Thus, if the Chamar community had acquired a new,
improved social status, the young woman of our case found herself abruptly
deprived of her matrimonial rights.
Killing a Cow
A Brahman was virtually excommunicated from his community, for having
accidentally killed a calf on his daily journey home from work. Notwithstanding
the accounts from most of the witnesses, who said that the ‘murder’ was
accidental, the people of Piparsod did not question the belief that both he and his
entire community were responsible for the ‘murder’. The following is the
astonishing account of Sarvan. The Brahman, who worked as a clerk in the nearby
town of Pohri, was carrying home some hay by bicycle. During a break in his
journey, a calf began to eat the hay and he tried to chase it away with a few
pebbles. The calf fell down and ceased to move. The calf was dead. The clerk,
scared out of his mind, went home without speaking to anyone. Two days later
the news had been spread by the cow’s owner who told people both in Piparsod
and in the surrounding villages. As Sarvan Lal said: ‘hatyā mangre par cillātı̄ haiñ,
dur̄ se āvāz detı̄ haiñ’ (lit. murder yells from the top, or murder cries out for
revenge). The whole village turned its back on the clerk and his family. They
could not draw water from the Brahmans’ well anymore. They were banned from
the temple and nobody wanted to even share ‘betel’ with them. They were
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subjected to hookā–pānı̄ band, or banned from sharing the water-pipe and from
drawing water from the well; in other words, excommunicated.
It seems, in this case, that everyone in the village saw the incident as a means
to take revenge on the clerk’s father for amassing a fortune from making
horoscopes and tantric rituals to ensure male offspring. Furthermore, the
‘murderer’ used to drink so excessively that his relatives often had to carry him
home from the village street corners. In other words the clerk could not have had
any hope of the support of his own caste, because the fact that it was a Brahman
who had killed the cow could only rouse on one hand the contempt of the lower
castes, and on the other hand lead to the strong reaffirmation of Brahmanic
values. Indeed, Brahmans, admittedly pure, do not hesitate in being harsher on
their own members who might endanger their reputation, and all the more so if
the financial situation of the culprit allows it. Brahmans are well known, in fact,
for being the least prone to solidarity out of all the castes in the village. Thus, as
was predictable, the case was deemed to be so serious that no one spoke on behalf
of the defendant, and he was forced to admit his fault. For his reintegration, the
Brahmans required him to undertake a pilgrimage to the Ganges and the
recitation of the Bhagvat Puran by a specialized Brahman – financially and socially
a rather heavy punishment, as it implied not only the expenditure of a
considerable amount of money, but also required the culprit and all members of
his family to submit to the traditional rituals of purification.
This case displays many of the peculiar features of traditional Hindu legal
consciousness. Indeed, because the pollution caused by the offence is considered as
contagious, it is held that all the relatives of the offender become polluted even if
they have not committed the act. It is the classical pattern of the Brahmanic
impurity scheme where the impurity of the sinner is automatically extended to the
whole family, the sinner supposedly having had contacts with his/her relatives.14
Robert Hayden, analysing the legal aspects of banishment and punishment,
maintains that excommunication is nothing but an automatic social reaction to
the offence and the only legal act is the panchayat act deciding the adequate
purification for the reintegration into the caste.15 Furthermore, there is nothing
more common than for the caste of the culprit to be the most important factor in
the decision.16 This attitude dates back to the Gautama Dharmasutra where it is
provided that the repayment for the theft increases if the thief belongs to one of
the superior vaºrna.17 Subsequently the Dharmashastra refers to expiations depending on the castes and on the personal qualities of both the culprit and the
victim.18 As Hari Shankar Sharma has pointed out: to earn money through
astrology is considered to be a minor offence; however, drinking alcohol, a
Brahman’s murder, theft or fornication with the guru’s wife are the four major sins
for Hindus.19 It also worthy of note that the cow’s owners never demanded any
form of compensation. Indeed, the peasants’ explanation has been that ‘hatyā ke
paise koı̄ nahı̄ cāhatā’, or ‘hatyā ka dān koı̄ nahı̄ khāta’: nobody would take the
money obtained from a murder. It seems evident that the matter of killing a cow
concerns the community and is not perceived to be a private legal matter. On the
other hand, the case was not even reported to the police and nobody thought to
sue the offender in an official court. There was a tacit agreement on the fact that
Holden: Custom and Law Practices in Central India
125
the cow slaughter, in spite of it being a serious matter, did not concern the
statutory jurisdictions. Indeed, the Constitution of India in its Directives
Principles, the Penal Code and the Supreme Court, protects milk cows from
unnecessary slaughter. However, according to specialists, cows, as others animals,
are not ensured an effective legal protection in India.20 In rural areas in South
Asia, where similar cases have been recorded by anthropologists, the protection of
the cow seems to be, on the contrary, more certain.21 It is equally evident that in
this case the religious issue was, in the eyes of the villagers, nothing but the best
opportunity to rebuke not only an individual but his whole family considered to
be a long-time source of shame for the village. Here again, official law could have
furnished the appropriate tools for acting against the perpetrator of an unjustified
violence towards the animal, but would not have answered the need of the
villagers to punish both the individual responsible and his whole family for what
they perceived as years of illicit gains.
The Brahman who Killed his Wife
In the 1980s a Brahman primary school teacher killed his wife in a fit of anger.
This did not surprise anybody in the village because the offender had always been
considered to be a violent and quick-tempered man. According to his neighbours’
accounts, the school teacher was arguing with his wife just before the murder
occurred. They heard him yell to his wife that if she did not stop talking, he
would kill her. She answered back by saying that he should kill her if he was not a
bastard. Thus, he took an axe and mortally wounded her. The Brahman himself
went to the police and his case was brought before the Shivpuri law court. He was
sentenced to life imprisonment, but appealed and was released after 10 years of
prison.
In the village, meanwhile, his family was excommunicated: the sanction of
hukkā–pāni band was rigorously applied to all his relatives for the entire time that
he was imprisoned and was not lifted after his release. In the eyes of the peasants,
this sanction was even worse than prison because of its consequences for the
future of the family members of the offender. This meant that nobody would
want to establish marriage ties with an excommunicated family. Following his
release, the school teacher was not accepted back in the village, either. The whole
caste was against him and, even after the ritual pilgrimage to the Ganges river, he
was not reintegrated into the community. Nor was he reintegrated after the
recitation of the Bhagvat Puran, as this was not followed by the communal meal,
which seals the reintegration into the caste. Furthermore, he had to go beyond the
village to find husbands for his two daughters. The Brahmans remained hostile to
the murderer for a long time, and he was only granted readmission after a
settlement was agreed upon between his brother and the head of the panchayat:
the marriage of the school teacher’s niece with the council head’s nephew. This put
a veritable end to the murderer’s excommunication. It was thus through the giving
away of a young woman in marriage that the Brahman regained his status, in spite
of the fact that he had committed an act considered by the villagers to be among
the irreparable sins.
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Indeed, according to the Dharmashastra the sin of intentionally killing a
woman is inexpiable.22 Consequently only an expiation ending in death could
relieve the murderer. Medieval digests, like the Prayascittamuktavali, however, say
that if the murderer is a Brahman, his punishment could never exceed 12 years.23
In this case the Brahman was reintegrated after 13 years of banishment but some
of his neighbours still, to this day, avoid any relationship with him or his family.
The excommunication of all the family members was interpreted by Hari Shankar
Sharma as a way of exercising pressure upon the offender. It is a matter of honour
for the high castes to show more harshness towards the members of their own
caste than towards the people who belong to the lower castes. On the contrary,
the latter are known for being capable of lying in order to elude the intervention
of justice. Here the hierarchy of the caste system seems to be balanced by the
different principles of honour and justice. The Brahmans’ attitude was therefore
not to demonstrate solidarity towards the offender. At the same time, as Hari
Shankar Sharma pointed out, Brahmans were aware of the principle that the
excommunication period should not exceed 10–15 years for a Brahman responsible for murder. When both the offenders and the victims belong to a lower caste,
as we shall see in the next case, the possibilities of clemency are much poorer
without the unconditional support of their own caste.
This case again presents all the patterns of the Brahmanic perception of
offence and punishment, because even more than the killing of the cow, it is
perceived as a sin, first of all by the same community of the offender. The
question that could appear to be unanswered in this context is why the murderer
went to the police himself. We will see in the next case that not only ‘cow
murderers’ can avoid official justice. Thus, what was the motive of the teacher,
when going to the police? Probably, it was because what he feared most was the
reaction of his own community. The villagers’ description of excommunication
depicts the dreadful harshness of the conditions of the excommunicated family
that is suddenly deprived of any social connection, not only emotionally but
materially as well.24 The teacher would have preferred life imprisonment but the
villagers thought differently. Questioned about the necessity of the excommunication, given that the murderer had already undergone a prison punishment, they
pointed out instead the unfairness and uselessness of the governmental intervention that subjected the individual to a double punishment.25 In the villagers’
perception, prison is in fact first of all a punishment for the family of the
offender, which is often deprived of the principal source of income, then secondly
for the village itself because it delays the purification rituals. However, in this case
the murderer had the last word, because against the inexpiability of his act and
against the exogamic principle that does not allow marriages in the same village,
he was reintegrated to the caste by arranging the marriage of his niece with the
nephew of the head of the statutory panchayat. Consequently, it was not the
secular principles of the official penal law but the contingent situation of the
numerical weakness of women, combined with the performance of the traditional
rituals of expiation, which offered the best escape from the rigidity of Brahmanic
orthodoxy.26
Holden: Custom and Law Practices in Central India
127
A Wall of Silence around a Collective Murder
In the 1980s, a carpenter, whose wife used to prostitute herself in the village,
was savagely murdered by a group of villagers who allegedly wanted to sell the
woman to a brothel in the town. Peasants’ accounts of the facts were frightening
and if it were not for the convergence of accounts from different sources I would
have put them down to the imagination of my interlocutors. A few names
seemed to recur in their accounts; however, nobody was incriminated. The lack of
proof, combined perhaps with police corruption, and, more importantly, traditional principles governing pollution and responsibility, saved them from being
prosecuted.
The carpenter’s wife was at that time the subject of gossip in the village
because men from nearby villages used to visit her. Consequently, a group of
peasants decided to ‘sell’ the woman in Shivpuri. By forcing her into the nearby
prostitution trade they hoped at the same time to gain some money and to clear
the village from the shame. However, they saw her husband as an obstacle to their
plan and decided to eliminate him. Some days later, when the carpenter was in
the temple, they called him out on some pretext and began to hit him. They cut
his nose, his ears, his tongue, his hands and his genitals. They continued to hit
him until he died. Then they took the corpse outside the village, tied some heavy
stones to the body and threw the corpse down a dry well.
What may appear surprising in this case is that no official or traditional legal
action whatsoever was taken. No question of impurity was raised, and no religious
ceremony was performed after the murder. The Brahmans did not officially give
out any punishment or call a panchayat. The victim’s relatives did not go to the
police. To my query about the complete absence of any form of legal action I had
two different answers. The first explanation, and the most openly maintained by
Brahmans and upper castes, was that on the one hand the lower castes are
‘naturally’ immoral, consequently no purification would have been effective for
them. On the other hand, the carpenter’s slaughter, without any close family
seeking justice on his behalf, was not regarded as a matter that affected the village
order. These aspects, together with their poor financial situation and inability to
carry out any expiatory rituals (pilgrimage or communal meal), would have ended
any motivation for starting a legal action, be it before a traditional or an official
jurisdiction. If this first explanation appeared callous for its cynicism, the second
was horrifying for its brutality. Indeed, I was told by Sarvan Lal that the
carpenter’s death was itself a form of purification and the murderers were nothing
more than a kind of material executors of what was at the same time the
punishment and the expiation. Both these interpretations, even if partially
conflicting, highlight the complicated relationship between local customs and
official law. Following the classical Brahmanic scenario of purity as a ‘natural’
attribute of upper castes, seeking justice for the murder of a lower caste man
would appear to be completely deprived of significance. The murder of a lower
caste man was not thought to affect the order and the peace of the village, and the
issue appeared to be exclusively left to his immediate relatives’ discretion. This in
itself would be enough to dissuade anybody in the village from undertaking any
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South Asia Research Vol. 23 (2)
official legal action, especially the poor carpenter’s family who did not dare to
make any move, fearing the same end for themselves. Consequently official law is
again considered as an unnecessary intrusion on one hand, and on the other hand
remains inaccessible to the only individuals who could have found in it some form
of protection and/or compensation. This is why Sarvan’s view does not completely
conflict with the more educated interpretation dealing with pollution principles.
The murder could very well be both a salutary lesson and a punishment for a
behaviour bringing shame to the whole community. The cruel reality was that the
carpenter had been warned about the unacceptability of such a shameful trade in
the village and the last resort in this case was not official law even for the villagers,
because they only knew too well how the local police tolerated similar trades in
the nearby hamlets. Eventually, this case is the ultimate example of the saying ‘to
each his own way’, indicating that official law and customs should remain
separate.
Principles of Village Justice
The overview of the above four cases highlights how traditional and official law,
even if based on essentially different principles, are both not only perceived by
villagers as being sources of law, but as part of a multi-layered stratification in
which social, gender, political and financial instances converge and compete for
contextually determining which is the more adequate law. An ideal map of
competencies would indicate secular legal concepts which inform official jurisdiction as opposed to religious concepts which inform traditional jurisdiction.
Official law and customary law are on the contrary not always part of two
different worlds, as in the case of the young Chamar woman, where political
forces and individual advantages led to the convening of an official body with a
mixed composition of elected members and village elders. On other occasions
official jurisdiction and traditional jurisdiction can both decide the same case.
Therefore the offender is doubly sentenced, as it was for the Brahman murderer,
but it is not unheard of to be charged with different crimes under different kinds
of jurisdiction. Villagers’ perceptions of law do include all this multiplicity of
sources of law and if the unfairness of double punishments is sometimes alleged,
official law, and not customs, is blamed.
Traditional jurisdiction is certainly part of the multi-layered Indian legal
system: it uses a specialized language, bases its decisions on precise notions of
social order and can also enforce repressive mechanisms. It is not the place here
for a study on the legal language used by traditional courts. However the existence
of a specialized terminology has been observed both in the written decision of
traditional panchayats and in the accounts of the local legal experts.27 Furthermore, many of the principles grounding the traditional panchayat’s decisions
have an evident source in the ancient Hindu tradition. It is therefore possible to
recognize the underlying Hindu system of thought both in the motivation of the
decisions and in the repression system. This should not lead us, however, to affirm
the purely religious nature of traditional jurisdiction, as it would amount to the
Holden: Custom and Law Practices in Central India
129
ignorance of its social and financial implications. Furthermore, it would lead to
the devaluation of the dynamicity of customs in the present legal system.
It is a fact that the cases brought before the traditional panchayats are
essentially concerned with protecting purity. Further, the repression applied by
traditional jurisdictions is called prāyaścit (expiation) against the notion of daºnd or
sajā (punishment) applied by the state. In the Brahman wife murder case, the
murderer had to undergo a repressive punishment by the state and an expiatory
punishment by the village community. In the case of the killing of a calf the
perpetrator was only made to expiate through the purifying bath in the Ganges
and the recitation of Bhagvat Puran. This could lead us to draw the boundary
between crime and sin. However, the line between expiation and punishment is
not as clear as one might think. Although expiation proceedings do not directly
compensate for the damage suffered by the owner of the calf, they do, however,
give him satisfaction of the public recognition of the injustice done by the
offender. The cow’s owners had come to Piparsod, not to claim any financial
compensation, but rather to see the act publicly condemned. The judgment of the
panchayat may well have been mainly dictated by the fear of contamination, but
the social aspect of the expiation cannot be totally denied, either. What is at stake
is not only the spiritual life of the offender, but her/his everyday life with all the
economic evaluations that promote personal strategies in case of need. Finally, the
expiatory rite does not only purify the guilty but will, above all, allow her/his
reintegration within the community. It is probably the threat of exclusion, rather
than her/his concern with purity, that would push her/him to conform to the
decision of the panchayat. Paradoxically enough the local legal consciousness
could not be more secular, which probably means that the persistence of customs
does not reside in their religious legitimization but rather in their easier access and
flexibility to adapt to local realities. In other words, the secular innovations which
have been introduced do nothing but perpetuate the history of clash and
adjustments between a dominant, official legal culture and customary local
traditions in South Asia.
Endnotes
* This paper is based on my M.A. dissertation submitted in 1996, at Paris – X
University, on traditional jurisdictions in Central India.
1 The work of Prof. Chambard covers three main areas: 1) a field collection of about 350
women’s popular songs; 2) an original local version of the Ramayana; 3) the annual
cycle of the Hindu festivals. For his most recent works see: ‘Les trois grands dieux à la
porte du roi Bali’, in Catherine Champion, ed., Traditions Orales dans Le Monde Indien,
Paris: Ehess, 1996, pp. 229–72; ‘La Tradition Populaire des Cinq Vierges (Panch
Kanyâ) dans un Village de l’Inde Centrale’, Ethnologie(s) 2, 1997, pp. 19–40; ‘The Bull
Named Dharma: The Game of Dice and the Ages of the World’, in Gabriella Eichinger
Ferro-Luzzi, ed., Glimpses of the Indian Village in Anthropology and Literature, Napoli:
Instituto Universitario Orientale di Napoli, 1998, pp. 1–13; ‘La Sexualité en Dessins de
Sol et Autres Images. À Piparsod, Village de l’Inde Centrale (Madhya Pradesh)’,
Gradhiva 28, 2000, pp. 1–22.
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South Asia Research Vol. 23 (2)
2 For further details of this memorable event and more in general for the history of
Piparsod’s foundation see Jean-Luc Chambard, Piparsod des Origines a 1984, Paris:
Ministère des Affaires Extérieures, 1984a.
3 Cf. Jean-Luc Chambard, Atlas d’un Village Indien, Paris: Moulton, 1984b, p. 9 and map
no. 28.
4 For an account of the Sanskritization phenomenon of emulating higher caste behaviour
in order to acquire a better status see Mysore Narasimhachar Srinivas, ‘Sanskritization
and Westernization’, Far Eastern Quarterly 14, 1956, pp. 481–96; David Mandelbaum,
Society in India, Berkeley: University of California Press, 1970, pp. 442–86; Richard
Burghart, ‘Renunciation in the Religious Tradition of South Asia’, Man 18(4), 1983,
pp. 635–53; Frederick George Bailey, The Civility of Indifference, Delhi: Oxford
University Press, 1996, ch. 2; Olivier Herrenschmidt, ‘ “L’inégalité Graduée” ou la Pire
des Inégalités. L’analyse de la Société Hindoue par Ambedkar’, Archives Européennes de
Sociologie, 37(1), pp. 84–103.
5 Pandurang Vaman Kane, History of Dharmashastra, Poona: Bhandarkar Oriental
Research Institute, 1930–62, vol. 4, p. 808.
6 The jajmānı̄ relationship entails an exclusive and hereditary link between two or more
families and involves at the same time ritual, social and financial features. For the
origins of the jajmānı̄ notions see William Henricks Wiser, The Hindu Jajmani System,
Lucknow: Lucknow Publishing House, 1936 and David G. Mandelbaum, Society in
India, pp. 163–64. The jajmānı̄ notion has been criticized by Gloria Goodwin Raheja,
The Poison in the Gift, Chicago: University of Chicago Press, 1988. For an analysis of
jajmānı̄ in relation to the death rituals on the Ganges river see Jonathan Parry, Death in
Banaras, Cambridge: Cambridge University Press, 1994.
7 Cf. John Duncan Martin Derrett, ‘J. H. Nelson: A forgotten administrator-historian of
India’ in Cyril Henry Philips, ed., Historians of India, Pakistan and Ceylon, Oxford:
Oxford University Press, 1961, pp. 354–72 and Robert Lingat, The Classical Law of
India, Delhi: Oxford University Press, 1998, pp. 135–42. For a diachronic study about
custom in Hindu law from ancient times until nowadays see Werner Menski, ‘The Role
of Custom in Hindu Law’, Recueils de la Société Jean Bodin, vol. 3, Bruxelles, 1992, pp.
311–47.
8 Cf. Marc Galanter and Upendra Baxi, ‘Panchayat Justice: An Indian Experiment in
Legal Access’, in Marc Galanter, ed., Law and Society in Modern India, Delhi: Oxford
University Press, 1989, pp. 54–92. For an excellent legal-anthropological study on
traditional panchayats see Robert M. Hayden, Disputes and Arguments among Nomads,
Delhi: Oxford University Press, 1999.
9 Cf. Marc Galanter, ‘The Aborted Restoration of “Indigenous” Law in India’, in Marc
Galanter, ed., Law and Society in Modern India, pp. 37–54.
10 Bernard Cohn, An Anthropologist among the Historians and Other Essays, Delhi: Oxford
University Press, 1987, pp. 554–74.
11 Cf. Mysore Narasimhachar Srinivas, The Dominant Caste and Other Essays, Delhi:
Oxford University Press, 1987/1994, pp. 121–2 and Menski, ‘The Role of Custom in
Hindu Law’.
12 The word Chamar comes from chamrā (leather). Traditionally Chamars remove and
work the skin of dead animals but nowadays in Piparsod only a few Chamar families
are actually cobblers, most are unskilled workers or sometimes farmers.
13 Cf. Jean-Luc Chambard, ‘Mariages Secondaires et Foires aux Femmes en Inde Centrale’,
L’Homme, vol. I, 1960, pp. 51–88; Louis Dumont, Homo Hierarchicus, Paris: Editions
Gallimard, 1966; John Duncan Martin Derrett, ‘Divorce by Caste Custom’, Bombay
Law Reporter J, 1963, pp. 161–9 and ‘Divorce at the Petition of the Wife in Hindu
Holden: Custom and Law Practices in Central India
14
15
16
17
18
19
20
21
22
23
24
25
26
27
131
Law’, The Jewish Law Annual IV, Leiden: Brill, 1981; Werner Menski, ‘Is There a
Customary Form of Widow-Remarriage for Hindus?’, Kerala Law Times, 1983, pp.
69–72 and ‘Widow’s Right to Property: Prejudices against Remarried Women’,
Manushi, 89, pp. 15–16; Vasudha Dhagamwar, Law, Power and Justice, New Delhi:
Sage, 1992, pp. 197–209; Erin P. Moore, Gender, Law and Resistance in India, Tucson:
University of Arizona Press, 1998; Jonathan Parry, ‘Ankalu’s Errant Wife: Sex, Marriage
and Industry in Contemporary Chattisgarh’, Modern Asian Studies 35(2) 2001, pp.
780–820. Livia Sorrentino Holden, 2002, ‘Divorzio Consuetudinario su Iniziativa
Della Donna in Madhya Pradesh’, in Michelguglielmo Torri and Elisabetta Basile, eds,
Il Sub-Continente Indiano Verso il Terzo Millennio. Trasformazioni Socio-Economiche,
Mutamento Culturale e Tensioni Politiche, Milano: Franco Angeli, pp. 413–46.
About the two main interpretations of the notion of impurity, pollution and their
transmission see Louis Dumont, Homo Hierarchicus, Paris: Éditions Gallimard, 1966,
pp. 69–85; McKim Marriot, 1976, ‘Hindu Transaction: Diversity without Dualism’, in
Bruce Kapferer, ed., Transaction and Meaning, Philadelphia: Institute for the Study of
Human Issues, pp. 109–42.
Robert Hayden, Dispute and Arguments among Nomads, Delhi: Oxford University Press,
1999, pp. 49–81 and 143–53.
For caste as a criterion for establishing punishment in Hindu law and other
Brahmanical principles of justice settlement in ancient Hindu law see: Charles
Malamoud, Cuire le Monde, Paris: Éditions de la Découverte, 1989, pp. 147–56 and
Werner F. Menski, ‘Crime and Punishment in Hindu Law and under Modern Indian
Law’, Récueils de la Société Jean Bodin 58(4) Brussels, 1991, pp. 295–334.
Gautama XII (15) (The value of ) property which a Sudra unrighteously acquires by
theft, must be repaid eightfold. (16) For each of the other castes (the fines must be)
doubled. (See G. Bühler, transl., The Sacred Laws of the Aryas, Delhi: Oxford University
Press, 1897/1987, vol. 2(I), p. 240.
Pandurang Vaman Kane, History of Dharmashastra, 1953, p. 101.
Cf. Kane, History of Dharmashastra, p. 14 and Lingat, The Classical Law of India, pp.
53, 85–6.
Cf. Rajeev Dhavan, ‘Do Animals have Rights?’, The Hindu, 14 July 2000.
See Cohn, An Anthropologist among the Historians and Other Essays, p. 589 and Doranne
Jacobson, ‘A Reverence for Cows’, Natural History, June 1999, p. 58.
Kane, History of Dharmashastra, p. 18.
Kane, History of Dharmashastra, p. 65–66.
For villagers’ accounts about excommunication see Livia Sorrentino Holden, 1996,
Coutume et Pratiques du Droit en Inde du Nord, M.A. dissertation, Paris – X, Nanterre.
For an account of the transmission of pollution in relation to prison see Verrier Elwin,
Maria Murder and Suicide, Delhi: Oxford University Press, 1991, pp. 196–200.
The numerical weakness of women in North India is apparently leading to new
adjustments attracting the international press: for bride-price customs see John
Lancaster, ‘The Desperate Bachelors’, Washington Post, 2002. http://www.
washingtonpost.com/wp-dyn/articles/A61642–2002Dec1.html; for recent forms of
polyandry see Rohit Parihar, ‘Family Bride’, India Today International, 3 Sep. 2001,
46–8.
For a detailed analysis of the terminology and of the process of argument in a caste
panchayat see Robert M. Hayden, ‘Fact Discretion and Normative Implications: The
Nature of Argument in a Caste Panchayat’, paper prepared for the conference on ‘The
Career and Prospects of Law in Modern India’, Madison, 1982.
132
South Asia Research Vol. 23 (2)
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South Asia Research Vol. 23 (2)
Livia S. Holden who has an M.A. and D.E.A. in anthropology from Paris X
University, is completing her Ph.D. in legal anthropology from SOAS, University
of London. Since 1995 she has been carrying out long-term fieldwork in the
Shivpuri district of Madhya Pradesh in India, inquiring into the relationship
between official and customary legal traditions, local legal consciousness and
gender relationships in relation to family law, divorce and remarriage customs.
Address: Nansen Village Flat 57, Woodside Avenue, London, N12 8RW, UK.
[email: [email protected]]