An Indian Penal Regime of the 18th century

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An Indian Penal Régime: Maharashtra in the Eighteenth Century Author(s): Sumit Guha Source: Past & Present, No. 147 (May, 1995), pp. 101-126Published by: on behalf of Oxford University Press The Past and Present SocietyStable URL: http://www.jstor.org/stable/651041Accessed: 27-07-2015 21:13 UTC

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AN INDIAN PENAL REGIME: MAHARASHTRA IN THE EIGHTEENTH

CENTURY *

INTRODUCTION

More than a decade ago, V. A. C. Gatrell and his collaborators noted that "[t]he relationship between those who make and those who break the law is justly beginning to claim a central place in social history", and the volume that was prefaced by this remark certainly indicated that the range and extent of work in what we may call the new social history of crime was considerable.' None the less, India scarcely featured in the wide-ranging and erudite survey of literature that opened the volume, the only reference being to Robert Lingat's The Classical Law of India,2 a work which focuses on Sanskrit legal texts that bear about as much relation to actual legal practice as the Mosaic law did to the Tudor judicial system. This is not to say that the working of judicial and penal systems in India had never been studied: many general histories have included chapters on judicial institutions, and for western India there was the path-breaking work of V. T. Gune, who made masterly use of little-used sources, and surveyed the enormous period of five centuries (1300-1800).3 The past decade

* Earlier versions of this article were presented at the Nehru Memorial Museum and Library, the Flinders University of South Australia and the University of Cambridge, and I have benefited from the comments and suggestions of the audiences in each of these places. Valuable suggestions were made by David Arnold, Brian Dickey, Ravinder Kumar, Prabhu Mohapatra and Michael Roberts. Sumit Sarkar and Tanika Sarkar found the time to write a detailed set of comments which greatly aided me in the final revision, and Indrani Chatterjee read and analysed the various drafts as they took shape. I am responsible for any errors that may yet remain.

1 V. A. C. Gatrell, B. Lenman and G. Parker (eds.), Crime and the Law: The Social History of Crime in Western Europe since 1500 (London, 1980), p. 2.

2 B. Lenman and G. Parker, "The State, the Community and the Criminal Law in Early Modern Europe", ibid., p. 23; R. Lingat, The Classical Law of India, trans. J. D. M. Derrett (New Delhi, 1973 edn.).

3 V. T. Gune, The Judicial System of the Marathas (Pune, 1953). S. N. Sen, The Administrative System of the Marathas, 3rd edn. (Calcutta, 1976) has several chapters on the judicial and penal system; and they also figure in V. K. Bhave, Peshvekalina Maharashtra (repr. Delhi, 1976), ch. 29. Justice under the Mughal emperors and their predecessors was studied by M. B. Ahmad, Judicial System of the Mughul Empire, new edn. (Karachi, 1978). Perhaps the earliest research on Maharashtra was the work

(cont. on p. 66)



102 PAST AND PRESENT NUMBER 147

has seen new research in this field, notably the work of Fisch, Nigam, Singha and Radhakrishna.4 However, this research (with the partial exception of Fisch) has tended to concentrate on the colonial period and there has been little attempt to follow up the earlier work of Gune, Sen, Bhat or Ahmad, for example. This intense focus on the period for which English-language sources are available leaves historians exposed to the risk of neglecting, idealizing or denigrating what is all too often lumped under the convenient and undifferentiated label of "traditional India" or "pre-capitalist society". This essay attempts to survey the penal practices that prevailed in a limited segment of "traditional India" and endow that vacuous term with some historical content.

REGION AND RiGIME

This article will deal essentially with the Maratha kingdom during the eighteenth century. By the middle of that century the Marathas effectively controlled most of the western half of the Indian peninsula, and had extended their power to north India. Their rise to independent power had commenced in the seventeenth century under the sovereign monarch (chhatrapati) Shivaji, and his descendants continued to be the nominal rulers of the kingdom until its final conquest by the British in 1818. However, Shivaji's grandson Shahu allowed effective power to slip into the hands of a line of Brahman chief ministers - the peshwas - who, for all practical purposes, came to rule the territory from their seat at Pune, while the kings lived under their control in the town of Satara.5

The Maratha regime, though it supplanted the authority of the Mughal emperors and the sultans who had ruled in southern (n. 3 cont.) of B. V. Bhat, Vyavaharanyayapaddhati [Principles of Judicial Administration], Annual Proceedings of the Bharata Itihasa Samshodhaka Mandala [Society for Research in Indian History] (hereafter B.I.S.M.) for 1915, 1916 and 1917.

4 J. Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law (Wiesbaden, 1983); S. Nigam, "A Social History of a Colonial Stereotype: The Criminal Tribes and Castes of Uttar Pradesh, 1871-1930" (School of Oriental and African Studies, Univ. of London, Ph.D. thesis, 1987); R. Singha, '"A Despotism of Law': British Criminal Justice and Public Authority in North India" (Univ. of Cambridge Ph.D. thesis, 1990); and M. Radhakrishna, "Surveillance and Settlements under the Criminal Tribes Act in Madras", Indian Econ. and Social Hist. Rev., xix (1992).

5A good political history is G. S. Sardesai, A New History of the Marathas, 3 vols.(Bombay, 1957-68).



AN INDIAN PENAL RiGIME 103

India, yet retained many of their administrative arrangements and practices. It was also aware of Sanskrit traditions in law and politics, and on occasion invoked the classical concept of dharma (righteousness) or Maharashtradharma - the dharma specific to Maharashtra.6 We need to consider, therefore, the extent to which scriptural law, whether Islamic or Brahmanical, may have influenced the penal practices to be examined here. I am inclined to argue that, as regards criminal justice, this influence was very limited, and that the Maratha regime in fact drew upon a reper- tory of punitive techniques that had grown up over centuries in which arbitrarily violent yet politically unstable regimes had sought to sustain their power against challenges from within and without. A medieval Sanskrit work on politics, the Sukraniti, illustrates this:

The various species of methods of punishment are the policies of censure, insult, starvation, imprisonment, oppression, destruction of goods, expul- sion from the city, marking the body, shaving of half portions of the body, carrying the persons over ignoble animals (e.g. asses), mutilation, execution as well as warfare.7

The rod of punishment (danda) was something that fell upon the king's enemies of all degrees, and therefore punishments form a continuum from censure to warfare. The administration of criminal justice was often, though not always, a political as well as a judicial process. It was therefore by nature variable, arbitrary, subject to negotiation and intercession, but also to exemplary displays of power and rage. Thus the fourteenth-century chronic- ler Ziauddin Barani recorded that the sultan Alauddin asked a leading Islamic jurist if the savage punishments he sometimes inflicted were lawful or not; the jurist, feeling that his own end was nigh, none the less stoutly replied that they were not. The sultan retorted that they were necessary in order to prevent rebellions in which thousands would perish, and so he would continue to inflict them. The jurist retreated into the silence that he had hitherto maintained, and royal practice retained its inde-

6 Thorough and perceptive analyses of social and political issues from varying perspectives are to be found in A. R. Kulkarni, Maharashtra in the Age of Shivaji (Pune, 1969); H. K. Fukazawa, The Medieval Deccan: Peasants, Social Systems and States (Delhi, 1991); and A. Wink, Land and Sovereignty in India: Agrarian Society and Politics under the Eighteenth-Century Maratha Svarajya (Hyderabad, 1986 edn.). ' The Sukraniti, ed. and trans. B. K. Sarkar (repr. Delhi, 1975), p. 130. Emphasis added.




pendence from the letter of the law.8 Later judges were even more pliable: an eighteenth-century Islamic scholar wrote scorn- fully of the "hereditary Qazis [judges] of the townships" that for them "the registers of the despandya [local registrar] and the words of zamindars [gentry] are their law and holy books".' Only an infinitesimally small part of the population had any access to the relatively rare and scattered Arabic and Sanskrit manuscripts embodying scriptural law, and they might often be interested in suppressing some of their contents.

Even though the peshwas were Brahmans, members of the priestly caste, yet their criminal jurisprudence seems to have been little influenced by the Sanskrit scriptures on these matters. Mountstuart Elphinstone, who observed their government in the last decades of its life (1798-1818), wrote that "Hindoo law was quite disused... and although every man is tolerably acquainted with its rules in civil cases, I do not believe that anyone but the very learned has the least notion of its criminal enactments".10 A glance at a Sanskrit compilation on penal policy (dandaniti) prepared under the Maratha king Sambhaji (1680-9) supports Elphinstone's view. The text is an anthology of quotations from earlier Sanskrit works, with a few clarificatory comments by the author Kesava, a royal official. The tone is consciously archaic: for example, fines are stated in the obsolete karshapana coin. Kesava also cites the verse of Manu that prohibits the punishment of a Brahman, however serious his offence; at most he was to be banished with all his wealth.11 But Kesava's patron, Sambhaji, had only a little earlier executed Brahmans found involved in the attempt to exclude him from the throne,12 and the eighteenth- century Maratha state routinely fined and imprisoned Brahmans who committed offences. They were, however, not usually put

8 The History of India as Told by its own Historians, ed. and trans. H. M. Elliott and J. Dowson, 22 vols. (repr. Allahabad, n.d.), iii, pp. 183-8; see also Ahmad, Judicial System of the Mughul Empire, pp. 151-5.

9 Nawwab Samsam-ud-Daulah Shah Nawaz Khan and his son Abdul Hayy, The Maathir-ul-Umara, trans. H. Beveridge, rev. Beni Prashad (Patna, 1979), p. 77.

10 M. Elphinstone, Report on the Territories Conquered from the Paishwa, 2nd edn. (Bombay, 1872), p. 37.

' Kesava Pandita's Dandaniti, ed. V. S. Bendrey [English introduction, Sanskrit text] (Pune, 1943). Brahman privileges are emphasized on p. 53 (text). A. R. Kulkarni has accurately characterized this work as discussing "the traditional criminal jurisprudence prevalent in early India. It is therefore practically of no use for our study": Maharashtra in the Age of Shivaji, p. 9.

12 This is asserted in the contemporary Sabhasad Bakhar [Sabhasad's History], ed. A. R. Kulkarni (Pune, 1987), p. 98.




to death - and in this regard, at any rate, penal practice con- formed to scriptural requirement. On the other hand, the low- caste farmers who murdered three Brahmans (p. 113 below) were not punished with the ferocity the law-books (hastra) would require, but allowed to compensate the victims' kin with land and property. In Elphinstone's time in "common criminal trials, no law seems ever to be referred to, except in cases connected with religion, where Shastrees were sometimes consulted. The only rule seems to have been the custom of the country, and the magistrate's notice of expediency". The concluding phrase again returns us to the political aspect of the judicial process: the extent to which it was influenced by the relative power and resources of the plaintiff, the accused and the adjudicator - the latter was far from omnipotent.13

In eighteenth-century Maharashtra the judge was all too often confronted with "over-mighty subjects" or vengeful kindreds. I give an example of the latter. In 1791 there was a robbery in the house of a government clerk in the village of Jaitone, and the thieves were tracked to another village, whereupon its headman and watchman, one Javji, as well as the latter's brothers were all arrested. A letter under the authority of the noble who held the village in fee (jagir) forced the release of the headman, but the commandant of Asher fort executed Javji and detained his brothers, despite demands for their release from another local potent- ate, the fief-holder (mokasadar) Jadhorao Wagholkar. Upon this, Javji's kin collected in the hills, raided Jaitone, carried off all its cattle and some inhabitants, and began to maltreat them in order to secure the brothers' release. Further confrontation would, the local officials reported, be an expensive business that they had not the resources to undertake, and so they released Javji's brothers and reported the whole matter to the court. Javji's fraternity had demonstrated its power, and would now be in some measure privileged, in the literal sense of withdrawn from the law (privileges). Now, I would argue that because such powerful individuals

13 Elphinstone, Report on the Territories, p. 37; James Casey cites advice given to a seventeenth-century Spanish judge: the punishment of leading persons was to be avoided, but if it became essential, then "let your worship make his peace with the man's kin... and make amends to them by doing them kindnesses when the occasion arises": James Casey, The History of the Family (Oxford, 1989), pp. 50-1. The Spanish judge was in a position similar to many Maratha administrators, not because they shared a common scriptural or religious tradition, but because they were both employees of weak states confronting powerful and recalcitrant subjects.




and groups had existed for centuries past, accommodations to their status had become part of what Elphinstone called "the custom of the country" - such custom being shaped by the outcome of previous conflicts, an epitome of the past balance of social power. Custom would favour the powerful whose predecessors had made it, and invoking it would allow the judge or official to move easily along the line of least resistance. Even royal authority had, at times, to succumb to such necessity; in a collection of political maxims prepared for the twelve-year-old peshwa in 1783 we find this advice: "punish according to the offence: but if an eminent householder long in the service of the state has interceded, then pardon".14 Intercession was an important part of any patron's responsibility to his clients, and such links might stretch a long way - as from a family of village watchmen to the important mokasadar Wagholkar. Such connections must, often enough, have acted in subterranean ways to suppress offences or modify punishments, creating anomalies intrinsic to the nature of the regime itself, while leaving few traces in the official record.

These features of the polity do not merely shape the judicial process: they also shape the evidence that it leaves behind. The record is almost always a brief statement or narrative of the offence and the punishment ordered. There is practically never any explanation in general terms of the relation between crime and punishment; at most we find an ordering of the guilty into three classes, and occasionally extenuating circumstances are mentioned. But even this is comparatively rare. On the other hand, in civil cases the awards were often very lengthy, and the testimony presented might be summarized in the judgment, but even here general rules are rarely set forth. This reticence had its origins, I would suggest, in the extent to which the judicial process was, or could become, an arena of contest and negotiation whose scope would be much reduced by the creation of binding

14 The Jaitone case is reported in Pune Archives, Sanika Rumal 23, Pudke 5, doc. 13666; the advice to the peshwa is printed in Sadhana Parichaya [Introduction to Sources], ed. D. V. Apte and R. V. Oturkar (Pune, 1963), p. 177. I have discussed the nature of customary rights more fully in S. Guha, "Wrongs and Rights in the Maratha Country" ("Changing Conceptions of Rights and Justice in South Asia" conference, New Delhi, 16-19 Mar. 1994). While the scope and possibility of intercession would be far greater than in Georgian Britain, the social role of the process would be rather similar to that described by D. Hay, "Property, Authority and the Criminal Law", in D. Hay, P. Linebaugh and E. P. Thompson (eds.), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975), pp. 40-9.




precedents or the enunciation of sweeping rules, which were therefore to be avoided. This leaves the historian with a mass of cases, but no generalizations. I have attempted to build an argu- ment around these cases, selecting from among them those which illuminate particular aspects of the regime without (I hope) imposing a false symmetry upon the chaotic diversity of the evidence.

THE DISTRIBUTION OF PENAL JURISDICTION

The effective centralization of authority was limited in the region and period that we are considering, and the judgment of offences and infliction of punishments was by no means the exclusive province of the kings (chhatrapatis), their ostensible ministers, the peshwas, or indeed of those appointed to do justice, and this was accepted by the rulers themselves. Elphinstone noted that a great man or chief:

was thought to have authority over his own troops and servants, wherever he was . . . At Poona Appa Dessye, in 1813, while completely in the Paishwa's power, blew away one of his Sirdars from a gun, for conspiracy against him, and was never questioned, though the execution took place within a mile of Poona. 15

Political calculation often entered into the assertion and toler- ance of penal jurisdiction. In 1791 two members of the Nagpur ruling family went on pilgrimage to Benares, then under British rule. A broker there cheated them by substituting copper for gold coins. The prince and his mother discovered this, but restrained themselves because the place was holy, and because their good relations with the English made it unwise to treat their subject harshly. But one of their retainers took it on himself to punish the man, tortured him to death, and planned to insult the corpse. This led to an outcry among the broker's caste-fellows, and the English sent an agent who, invoking the good relations between Nagpur and his government, said: "You killed the broker. Let it be. He committed a misdeed and has paid for it; now do not tie his body to the leg of a camel". So the corpse was given to his castemen.16 The fine diplomatic balance between the British and Nagpur clearly played an important part in the whole

'5 Elphinstone, Report on the Territories, p. 37. 16 "Nagpurkar Bhoslyanchi Bakhar", in Kavyotihasa Sangraha [Literary and

Historical Collection], no. 16, ed. V. D. Oke (Pune, 1885), p. 140.




incident. Not only visiting princes, but powerful corporate bodies might claim independent jurisdiction: so, for example, two bands of itinerant traders had an affray in 1740-1, but the leader of the attacking band was arrested only because a government customs clerk had been killed in the fight, and so the state had to take notice of it.17 Similarly, a stone-mason supplied bad liquor to a Gosavi - a member of a (theoretically) ascetic military fraternity - as a consequence of which the latter died. Rayaji Jadhavrao, a royal officer, did not attempt to adjudicate the issue; instead he simply handed over the mason to the (presumably irate) fraternity, and we have no record of his fate."1 This was in 1726-7. By mid-century the power of the king had waned as that of his ministers and generals waxed, and we find him writing resignedly to a complainant, the noble lady Rajasbai Patankar: "you wrote that Dharrao Patankar plundered the businesspeople of the mart of Sambhapur. It is best if you and your relatives reach an understanding among yourselves; the court cannot be useful in this matter . .. ".19

An unsuccessful attempt to manipulate the elasticity of jurisdiction can be seen in the case of the Brahmans of the temple of Mahadev in 1771. A theft took place in the temple, and the Brahmans, having located the thieves, went to a great man at the peshwa's court, Babuji Naik of Baramati, also a Brahman. The latter came, seized the thieves, restored the stolen property, and took the prisoners to Baramati and then to Pune. Meanwhile, the head of the powerful Ghatge family, within whose lands the theft had occurred, summoned the Brahmans, and demanded why they had not reported the case to him, and how they had sent thieves from his realm to the peshwa. The Brahmans sought to exculpate themselves by saying that Babuji Naik had taken away the thieves, but Ghatge was not satisfied with this, and threw them into prison, where (according to their plaint) they could not perform their daily prayers and were regularly beaten "like thieves". When the peshwa sent an official to remonstrate with Ghatge, the latter assaulted him and drove him away. This led the peshwa to remark ominously that with such behaviour the Ghatge raj was

17 Selections from the Satara Raja's and Peshwa's Diaries, ed. G. C. Vad et al., 9 selections (Pune, 1903-11) (hereafter S.S.R.P.D., with selection number followed by part number, where necessary) [Marathi texts, English notes; all translations mine], i, p. 184.

18 Ibid., p. 182. 19 Ibid., p. 187.



AN INDIAN PENAL REGIME 109

not likely to endure.20 But it does not appear that any action was taken. Ghatge belonged to an old Maratha lineage, which had been eclipsed by the rise of the peshwa, and this may well have been the reason behind his vigorous assertion of an independent jurisdiction.21 Apart from honour, however, profit may have entered into his grievance. As with practically all medieval and many modern r6gimes, justice was not a free service, but an important source of income for its purveyors.22

The fiscal significance of jurisdiction is indicated by an order to Satvoji Gavde, employed in the state cavalry, in 1783-4: "You have been considering and settling people's disputes. Credit the fees, fines, and debt-recovery charges, that have accrued and will accrue, to the account of your unit".23 An even clearer example is the complaint of Ramaji Mahadev, headman of the village of Pimplas, stating that he had presided for many years (since his own tenure as revenue-collector) over the sales of houses and also decided disputes over walls, boundaries, water-courses, etc, in his village. But since 1775-6 the local administrator (kamavis- dar) was usurping these functions and their fees. The latter was ordered to desist.24

Maratha officials, like their British successors, exercised both revenue and judicial functions. The anonymous author of an early nineteenth-century Marathi description of the judicial system wrote that "it was not the custom to term those in whose hands the state put the administration of justice as judges (nyayadhisa)". Both district officers (mamledar) and provincial governors (subhedar) dispensed justice; those holding the deputy's seal could issue final verdicts without reference to the court. In cities the warden (kotwal) settled disputes, thefts, cases of sexual misconduct etc. The chief justice in the capital generally heard cases arising out of disputes over inheritance (watan) and those involving large sums of money. The document gives the impression that the chief justice generally dealt with cases involving complex

20 Selections from the Peshwa Daftar, ed. G. S. Sardesai, 45 vols. (Bombay, 1931-4) (hereafter S.P.D.) [Marathi with English notes; translation mine], xxxix, pp. 141-2.

21 See the account of the Ghatges in Selections from the Letters, Despatches and Other State Papers Preserved in the Bombay Secretariat: Maratha Series, i, ed. G. W. Forrest (Bombay, 1885), pp. 675-6.

22 This is immediately evident if we look at administrative accounts: see, for example, Pune Archives, Parasnis Transcripts, vol. 14, fos. 77-82.

23 S.S.R.P.D., viii, pt. 3, p. 129. 24 Ibid., p. 126.




issues of law or evidence, and these only arose in property, money or caste disputes. Criminal offences of various sorts seem to have been thought within the competence of any official, or indeed any powerful layman, to decide.25

Finally, the reader should note that the individual lived in several penal jurisdictions apart from that of the king and his ministers; he or she might be subject to punishment in various degrees by the caste, the village community, the chief of the merchants, the preceptor (dharmadhikari) and the head of the family. Many punishments short of death or mutilation might be inflicted by such authorities, and the peshwa on occasion handed culprits over to caste discipline after inflicting the royal punishment (rajdanda).26

PROCEDURE IN CRIMINAL CASES

Our evidence on this is scanty: quite probably procedure would often be summary, and much of the evidence taken orally. Furthermore the majority of the cases cited here are from the Satara Raja's or peshwa's daily memorandum of orders issued, often in cases where the offence was established and reported by local officials, and the ruler merely awarded, or confirmed the award of, a punishment. Occasionally, however, more information was demanded, as in the case of Yesa, a slave who grew too troublesome for his master to manage, so that he was freed, and then committed two or three thefts in different Brahman houses. He was arrested, and the local officer asked for orders; the reply was "Send a detailed statement of the places where he stole from, and the value of the goods taken; when this is clear then orders will be issued. Meanwhile, give him the usual allowance of food and make him work on [government?] buildings".27

The beating of suspects (at least those of the lower classes) may well have been a common part of procedure. Thus two Berads, Yeshya and Javjya, were caught stealing and, when they refused to answer questions, beaten so that they both died. The investigator, Bhikaji Appaji, clerk of the government cavalry, was merely ordered to deposit their property with the state.28

25 S.P.D., xlv, pp. 134-42. 26 S.S.R.P.D., viii, pt. 3, p. 80. 27 Ibid., p. 99. 28 Ibid., p. 93.




Even persons of status may sometimes have been beaten during interrogation. Thus one Balaji, a man of some standing, was allegedly apprehended drunk, in adulterous intercourse with a woman from a noble (deshmukh) family in Chikodi. This case came before the chief justice, Ramshastri, to whom Balaji confessed to adultery, but denied drinking liquor, and claimed that his confession had been extorted from him by beating and abuse (marjhod). He offered to undergo an ordeal to prove his innocence. The judge then asked the peshwa to order an inquiry into the reliability of the respectable persons who had allegedly witnessed the offence.29 The local community could be held responsible for unresolved crime within its lands, and its identification of culprits might well be sufficient for action. Refusal of evidence, on the other hand, could bring down penal sanctions even on a community of Brahmans such as those resident at the Pravarasangam where a Brahman was murdered. The community refused to identify the killers, saying "we have all killed him". They were therefore all imprisoned and put out of caste until they divulged the names, whereupon those not involved in the killing were prescribed a penance and released.30 Elphinstone's comment seems a fair one: "In cases that threatened the peace of Society, apprehension was sudden and arbitrary, trial summary and punishment was prompt and severe. The innocent might sometimes suffer, but the guilty could scarcely ever escape".31

An example of the former outcome: Trimbakji of the village of Koshimbe was in conflict with his co-sharers in the head- manship. They therefore went to the local military officer (faujdar) and charged Trimbakji and his wife with being sorcerers who were harming them and the village at large. The officer then put them both to death. Trimbakji's son, Kevji, then made the journey to the court (which often moved through the kingdom) and complained. The accusers were brought before the peshwa, and confessed that they had made a false accusation out of enmity, begged for mercy, and asked to be permitted to compensate Kevji for the deaths of his parents.32 The faujdar, we may note, does not seem to have been held guilty of any error - later in the

29 Gune, Judicial System, App. B-III, p. 335. Gune's English text is followed by four valuable appendices of Marathi documents; translations mine. -' S. S.R.P.D., vii, pt. 2, p. 200.

3' Elphinstone, Report on the Territories, p. 40. 32 S.S.R.P.D., ii, pt. 2, p. 51 (1755-6).




century he might have requested permission from the peshwa before the executions, but the outcome could well have been the same.

FORMS OF PUNISHMENT

Having considered jurisdiction and process, we now turn to penal practice: the award of punishment. All penal administrations exercise considerable discretion with regard to prosecution, and judges almost always have some latitude in sentencing. Wide discretion and great latitude characterized the practices of the Maratha regime, which would not, in any case, have seen the equal treatment of all offenders as being at all a desirable goal. Since, as we shall see, punishments could vary widely even for identical offences, I shall discuss penal practice arranged according to punishment rather than crime; and punishments themselves classified under the four heads of fines, imprisonment, mutilation and death. All of these in differing forms may be found prescribed for various offences in both classical Hindu and Islamic law, but we should not conclude that they were therefore derived from these sources. Killing, maiming or seizing the goods of offenders are expedients that have spontaneously suggested themselves to many imaginations without the benefit of scriptural enquiry.

Fines Fines of varying magnitude were quite probably the commonest form of punishment, and they ranged from such small sums as half a rupee to thousands of rupees. At the upper end of the scale, fines might be almost indistinguishable from tribute when extracted from petty chieftains and the like. In assessing the magnitude of fines, it would be well to bear in mind that the rupee of the time was a good deal more valuable than at present: 3-5 rupees a month being the pay of a manservant, and 20 rupees plus food being a common wage for an agricultural labourer hired by the year.33

The magnitude of the fine did not depend exclusively on the offence committed - it was an accepted principle that fines should be fixed according to livelihood or ability to pay (jivan

33 Wages and prices in the late eighteenth century are discussed in W. H. Sykes, "Statistical Report on. . . the Dukhun", in Reports of the Seventh Meeting of the British Association for the Advancement of Science (London, 1838), pp. 320-5.




mafik), since a fine that would be utterly beyond a poor man's means would otherwise scarcely be felt by a rich one. British officials, coming as they did from a country with an extremely brutal penal regime, thought that a fine was no sort of punishment at all, but it is doubtful if that was how the people of Maharashtra viewed it. We must remember that they lived in an age and country where it was far from difficult to die of hunger, and parents sold their children into slavery in hard times.3 A crippling fine was not something to be viewed lightly, and could leave the culprit destitute, as in the case of Krishna, a trader who made and sold counterfeit gold ornaments. The governor fixed his fine at 400 rupees, but after all his possessions had been sold he could pay only 175; since he was in such poverty as to be stinted for food, the peshwa remitted the balance.35 Less drastically, a trader of Pune was arrested on suspicion of killing his wife and confessed to it in court, asking to be allowed to compound according to his means (jivan mafik) from the debts owed him by various persons. The fine was then fixed at 2,500 rupees.36

In some cases, part or all of the murder fine went to compensate the family of the victim. This might be due to the influence of Islamic law, or it might be simply the reflection of a social situation where, if the victim's kin remained silent, the king might never hear of the death or identify the murderer. The hope of compensation might move the complainant where the desire for vengeance was by itself insufficient. In our next two cases, compensation probably helped to restore tenable relations within village communities that might otherwise have succumbed to destructive feuding. So, in the case above where disputing co-sharers had brought about the death of Trimbakji and his wife, the culprits had to surrender forty-five bighas (perhaps forty acres) of their land to Kevji, the son of Trimbakji. Some- times even the killing of a Brahman, unforgivable according to the Sanskrit law-books, could be settled in this way. Thus Bhagwantrao Kshirsagar was cheated by his partner, a farmer of Kameri village. The latter was supported by the headmen of the village, and when the dispute escalated, they killed Bhagwantrao

34 A petition from a famine area in 1791-2 stated that the peasants had somehow survived till then by selling their "children and cattle", but now their resources were exhausted: Historical Selections from the Baroda State Records, 4 vols. (Baroda, 1936), iii, p. 358.

35 S.S.R.P.D., vii, pt. 2, pp. 206-7. 36 Gune, Judicial System, App. B-IV, p. 350.




and two of his sons. The third son complained to the peshwa, witnesses were summoned, and a committee of assessors (panchayat) sat to work out a settlement (1760-1). It was decided that the two headmen were to surrender forty-five bighas of unirrigated and five of irrigated land, all tax-free, and to hand over both their houses in the village; the partner had to surrender ten bighas of unirrigated and five of irrigated land. All this property went to compensate the surviving son.37

Sometimes the compensation to the victim might be much smaller than the share of the state - as, for example, when the former was given 1,500 rupees out of a fine of 10,000.38 Nor indeed was there any invariable rule that the kin received compensation - murders punished by fines, none of which went to the kin, have also been found. The extension of culpability from slayer to mover (which we saw in the case of Trimbakji and his wife) is also evidenced in another compensation case, this time in 1790. Naro Mahadev Joglekar seduced the wife of Moro, a tailor, whereupon Moro killed her. Joglekar was fined 2,000 rupees, out of which the tailor was given 300 in order to enable him to marry again.39

Whatever the powers of husbands, creditors could not take their debtors' lives, though the right of private arrest was recog- nized. Sidhmali owed money to Mahadji Govind Joshi, so the latter confined and maltreated him, resulting in his death. This offence cost Joshi 2,000 rupees. Another big money-lender, Ganoba Naik, arrested two of his debtors and began to press them for repayment; the government warned him to release them, but he did not do so, and they both died. Ganoba was fined the not inconsiderable sum of 20,000 rupees. We do not know the status of the victims, but they were probably superior to that of of the nameless slave-woman so severely beaten by her master that she died the next day; her owner, Malhar Balaji, was fined 25 rupees, and prescribed an unspecified penance. But when Yaswant Sivaji struck a Brahman, Vishwanath Khandekar, on the face and insulted him, he was fined 325 rupees.40 Lesser folk could also invoke the state in their defence - Rayaji Katka of

37 S.S.R.P.D., ii, pt. 2, pp. 55-6. 38 Ibid., viii, pt. 3, pp. 85-6. This is itemized as 1,500 rupees "on account of the

killing" and 8,500 rupees "on account of the state's fine" (sarkarche khandabaddala). 39 Gune, Judicial System, App. B-IV, p. 365. 4 All cases ibid., App. B-IV, pp. 353-5.




the village of Murti beat his nephew, who complained to the district officer, and had his uncle fined 7 rupees in 1722-3.41

For some offences, notably drinking alcohol, the upper classes were more severely punished than the lower - though an untouchable who behaved riotously when drunk lost all the money that was found on him: 61 rupees. But Vithoji, hereditary headman of the town of Khed, having been found drunk was fined 10,000 rupees, the fine being suspended on the promise of good behaviour. Unfortunately for him, he was again caught drunk by the watchmen in Pune, and his hereditary property was attached to enforce payment.42 Sexual misconduct was a lucrative source of fines, and almost invariably punished in this way (with certain exceptions that we shall consider below). Fines were graded by ability to pay. Appaji Pawar attempted to elope with a slave- woman belonging to Govind Ballal, and was arrested. The order in his case in 1769-70 ends: "if it is possible to realize a fine, collect it; if not release him all the same". However, when Adai, belonging to a headman's family, was caught in adultery with Jhagatpuri Gosavi they were jointly fined 7,000 rupees.43 Again, when Kondo Malhar Dani's widowed sister-in-law committed an offence he had to pay 3,800 rupees, but when Nathuram got his daughter-in-law with child he was fined 90 rupees." It will be noticed that the men under whose control the women lived were often called on to pay the fine; but sometimes the authorities encountered women who had no such guardian.

Thus a Brahman widow in the town of Narayangaon was found to have a liaison with a low-caste man, whereupon her house was confiscated by the local administrator, presumably in lieu of a fine. She then went to the town of Junnar and was found with a tailor. Thereupon the local Brahmans met to consider the case, and found that she had two sons, aged six and eight, who had undergone the thread ceremony and therefore should be regarded as Brahmans. They were taken into the Brahmans' charge, and the mother declared a permanent outcast. The peshwa was informed of the proceedings and asked if he had any orders to communicate.45 What happened to the woman we cannot say,

41 Pune Archives, Parasnis Transcripts, vol. 14, fo. 77 (1722-3). 42 For the Mahar, see Gune, Judicial System, App. B-IV, p. 367; for Vithoji, see

S.S.R.P.D., viii, pt. 3, p. 119. 43 S.S.R.P.D., vii, pt. 2, p. 217, and ii, pt. 2, p. 68, respectively. 44 Gune, Judicial System, App. B-IV, pp. 364, 363. 45 S.P.D., xlv, p. 133.



116 PAST AND PRESENT NUMBER 147 but it is possible that her outcasting was preliminary to enslavement, so that the Shastric injunction that Brahmans should not be enslaved would not be violated. Enslavement did sometimes follow on sexual irregularities by women. An answer to a British enquiry in about 1820 develops a rationale for this:

If low-caste women, sudras etc. are caught in adultery and their kin lack the capacity to pay their fine, and they do not belong to a notable or respectable household, then sometimes, in some administrative charges, the executive officer might enslave them, keep them in the Government house, gift them to someone, or sell them. This is not in the law-books (shastra), enslavement for offences. They do not prescribe it. They prescribe various punishments and penances. Women are enslaved as the equivalent of the fine.46 This account is supported by several cases. In 1754-5 the

widow of Devji Parata, of the Koli caste, was accused of sexual misconduct and taken to the local hill-fort. Her kin then came to the court and petitioned, saying "do not cast this member of our kindred into slavery". The peshwa then, considering her respectable origin, agreed to her release on the payment of a fine of 50 rupees.47 This widow escaped the fate of a woman called Godi, who being apprehended in prostitution at Satara in 1735 was handed over to Dwarkoji Yadav as a slave. Her price was debited to his estate.48 Another case helps to clarify the rationale of this practice. Bhivi, widow of Ranoji Kadu of Vaghapur, was living in Pune, and was detained on account of sexual promiscuity. She had no master (valisdar) and the fine could not be realized. People feared to take responsibility for her, so she could not be remar- ried. If set free she would roam about prostituting herself, and she was willing to accept slavery; therefore she was handed over as a slave to Ramaji Govind, on payment of 50 rupees. If any claimant to her should subsequently appear, he was to recover his money and hand her over.49 Women therefore had a vendible property in their persons which could, all else failing, be sold to realize a fine. This does not seem to have held for men. An adequate analysis of this gender difference cannot be undertaken here, but it may be suggested wifehood and slavery were not distinct states, but rather two continuua of experience; and that

46 Ibid., xlii, p. 33. 47 S.S.R.P.D., ii, pt. 2, p. 67. 48 Tarabaikalina Kagadpatren [Tarabai Papers], ed. A. G. Pawar, 2 vols. (Kolhapur,

1970), ii, pp. 173-4. 49 Peshvekalina Samajik va Arthik Patravyavahara [Social and Economic Documents

of the Peshwa Period], ed. R. V. Oturkar (Pune, 1950), p. 9.




the lower end of the first came sufficiently close to the upper end of the second for one accustomed to the former to be able to resign herself to the latter.'s The adult male with his stronger sense of autonomy might not make a satisfactory slave.

The fines discussed so far have been almost exclusively those levied by the court, governors or district executive officers, but the power to fine was not confined to them; it was also vested in the headmen or administrators of single villages, and it was likely to have been a major instrument of social control. The sorts of offences noticed and fines levied at this level may be gauged from a short extract from one set of village accounts.51

[Rupees] [Head] 5 Uttam Marvadi and Kaniram Marvadi gave short weight to

the government last year - so fine taken 2 Mahadu Mali made a false accusation of theft against

Brahmaji Dhangar - so fine taken 1 Brahmaji Powar Mali's hut in the fields has no occupant;

what reason did he have to erect it? [Suspicion of preparation for theft]

1 Appa Sonar spoke insultingly to Govindpant the village accountant - fine taken

2 Subhana Mang unwarrantedly vexed his mother at home - fine taken

2N Mukunda Sida wrongly troubled Janu Pavarin - fine taken

Of course, we should not imagine that the power to fine was vested solely in the state and its agents. Almost anyone with disciplinary power could do so, notably the caste or its headman. In some cases, the leading Brahmans at certain pilgrimage centres, such as Nasik and Karvir, would also receive payments for purify- ing persons of sin ranging from driving a daughter-in-law to suicide, killing a cousin caught in flagrante with a mistress, to accidentally killing a cow.52 The peshwas as Brahmans, and tolerably learned ones at that, were also competent to govern matters both sacred and profane, and in at least one case we find them administering both punishment and purification to the people of Akola where a woman had been raped, and had later committed

50 I owe this suggestion to Indrani Chatterjee. 51N. G. Chapekar, "Chiplonkar yanche jamakharch", B.I.S.M. Quart., vi,

(1925-6), pp. 133-4. 52 Prayashchitta - purification - usually consisted of rites painful to the body,

the purse, or both; for a good account with important original documents, see D. V. Potdar, "Patitapavanapaddhati" [Method of Purification of Sinners] in B.I.S.M. Annual Proceedings for 1915.




suicide. The culprits had to pay a fine, and all the residents had to drink the five products of the cow to clear themselves in this world and the next."53 Generally speaking, however, the state did not encroach on the disciplinary powers and emoluments of the censors of righteousness (dharmadhikari) and indeed often reinforced them. It also sustained the powers and offices of the hereditary Islamic judges (qazi) in various towns.54 However, the state did have a coadjutory power to determine whether and when a sinner might be purified by penance (prayaschitta), and quite often took a fee for this. So when in 1766 Ramachandra Babaji, a Shenvi, performed penance without government permission, he was fined 3,000 rupees.55

Occasionally the peshwa might intervene to modify the penances prescribed, as in the case of a Brahman woman who brought about the death of one of her husband's co-sharers, whereupon he and his fraternity were outcasted. Her expiation was to include the pilgrimages to Rameshvaram and Kashi, but the peshwa modi- fied it to the (easier) circumambulation of Tryambak in view of her sex.'" The peshwas, as the most powerful Brahmans of the time, exercised in a more intense form the disciplinary powers that the "big men" of any community possessed, but did not lose sight of the distinction between this, and the exercise of royal power. When the case of Baku Pethi, a woman who had contrived the death of her adoptive brother, was settled, she had to pay 1,000 rupees for permission to undergo prayaschitta and another 1,000 as a fine for the murder.57

Imprisonment Godi, the woman mentioned above, was enslaved partly in order to prevent a recurrence of her offence; in a sense, therefore, she was consigned to a domestic version of an open gaol. The Maratha r6gime also used institutional confinement as a form of punishment. This is not one of the penalties much discussed in law- books, for understandable reasons. Detention for long periods is a costly and troublesome form of punishment and early states might lack the infrastructure necessary for it. So, except for

53 S.S.R.P.D., viii, pt. 3, pp. 86-7. 54 Or even hereditary claims to the control of a church by a Christian priest:

S.S.R.P.D., vii, pt. 2, p. 342. 55 S.P.D., xliii, p. 68. 56 Ibid., pp. 120-1. 57 Gune, Judicial System, App. B-IV, pp. 353-4.




political prisoners, hostages, some tax defaulters and similar exceptional categories, detention much beyond the period of trial, or while a fine was being realized, would be unusual in such r6gimes. Fines, beatings, mutilation and death in various more or less elaborate forms - these would be the main weapons in the penal arsenal. Only a government with considerable administrative and fiscal resources could afford to lock up any large number of persons in (however unluxurious) a state of idleness.

The Maratha regime, however, did use imprisonment as a punishment; apart from detaining suspects for investigation, and convicts until their fines had been realized. In part this was made possible by their rich penal resource constituted by the numerous inaccessible hill-forts in the Maratha territory. These were not only difficult to escape from, but also needed a certain amount of labour for their maintenance, as did government buildings in other locations. Prisoners, both men and women, could be use- fully employed and cheaply detained. It will be recalled that the troublesome freedman, Yesa, was to do building work until his fate was decided. In addition to those undergoing trial, there were also long-term prisoners detained, so to speak, at the king's pleasure. One important class among them would be Brahmans, both men and women, who had committed grave offences, but could not be executed on account of their caste. Scriptural law and custom both conferred a degree of privilege upon them, but guilt by association was an important tenet of the scriptures (dharmashastra), the fifth great sin being association with anyone who had committed any of the first four;"5 consequently their imprisonment may have been intended to protect the community from contamination.

Thus the Brahman servant who had colluded with Baku Pethi in throwing her brother out of a window was imprisoned in a hill-fort, and only released when his health began to deteriorate seriously. Women were usually exempt from capital punishment, so Gangi who had poisoned her husband with arsenic was sent off to a hill-fort."59 The same punishment was awarded to Girji, a Brahman woman who had a liaison with a Muslim. The man was trodden underfoot by an elephant but "as women are not

58 See "mahapataka", in Molesworth's Marathi-English Dictionary (Pune, 1982 edn.; first published 1831).

59 S. S.R.P.D., viii, pt. 3, p. 86.




put to death" she was sent to Sinhgad fort."6 Sometimes detention was seen as necessary to restrain misconduct as in this case from 1794-5:

Kashi, wife of Trimbakji Chavan, resident of Nevasa, abandoned her husband and household and came to Pune where she engaged in prostitution (badkarm), therefore she is to be imprisoned in Sarasgad fort . .. confine her there, do not allow her to develop any liaisons there, and do not allow anyone to take her for his household work. Make her work on the buildings etc. and give her the customary allowance of food.61

Variations in rations and conditions of confinement were often used to vary the punishment: in some cases prisoners were to be kept in fetters or fed on inferior grain. Social status naturally affected the conditions of imprisonment; so when Sai Deshmukhin was caught in adultery with Balaji Hari Joglekar, they were both detained, but it was stipulated that they should be issued rations of a middling sort. The Deshmukhin was also permitted to have a slave-woman accompany her into prison.62 Similar concessions were made for Chintaman Narayan Gola who had behaved "irreli- giously" with a dancing girl. Detained in Shivner, he was to receive stipulated quantities of rice, flour, lentils, salt and clarified butter.63 The most severe conditions were those specified by the chief justice for Trimbak Dharap and his cousin, Brahmans who had attempted to carry off and forcibly marry the daughter of another Brahman. They were to be paraded through the streets to the beat of a drum, so that no one should think of repeating their offence, then confined in the arsenal in fetters, and made to beg daily for their food.6

Just as fines were not necessarily inflicted upon the culprit, but often taken from the head of the household, imprisonment might extend beyond the offender to encompass the immediate household. For example, Bhiubai, a Brahman woman, married her daughter twice, so she, her daughter and son were all imprisoned in Shivner.65 Sometimes, of course, as perhaps in this case, it was humanity that prompted the incarceration of young children with the mother, but it was often a purely punitive measure. Thus

6 S.P.D., xliii, p. 123; the quotation is from "A Memorandum of Criminals" (Yadi Apradhi), ibid., xli, p. 24.

61 S.S.R.P.D., viii, pt. 3, p. 109. 62 Ibid., p. 71. 63 Ibid., vii, pt. 2, p. 240, doc. 642. 64 S.P.D., lxiii, p. 116. 65 S.S.R.P.D., vii, pt. 2, p. 211.




when there was a dacoity in Satara, and the government learned the identity of twelve of the robbers, orders were issued to seize them and anyone associated with them, and also to arrest their children and seize all their goods.66 The sins of the fathers could descend on the sons, as well as vice versa: Manka Korda killed a soldier in Shivner and fled; therefore his son Dhavjya was sent in fetters to that fortress, presumably to induce his father to surrender. Conversely, when Chhota Kasi raped a woman and absconded, his house was attached, and his father, mother, wife and children were imprisoned, and only secured their release by the payment of 1,000 rupees."' A fine might have to be paid for release from prison even after prolonged detention. When Amritrao Ram, who had joined forces with an enemy power in the year 1760-1, was released seven years later, he still had to pay 10,000 rupees.68

Mutilation Mutilation has much to recommend it to a penal authority which does not wish to inflict the extreme penalty of death, but wishes to make a lasting impression on both the culprit and the people at large, without expending too much by way of time or resources in the process. A limbless beggar would certainly be more visible than a cremated corpse, and the Maratha regime inflicted various mutilations, according to the crime.

So, when Ahili, wife of Janoji Davra, committed adultery with Devji Chichvada, Devji paid a fine and was released, but Ahili remained in confinement. The vengeful Janoji then complained to the peshwa that she was not being punished, whereupon it was ordered that she should be released after cutting off her nose.69 Men might also be subjected to such punishments. Mansingh Khalata, an officer of the government cavalry, took a peasant's wife as his mistress. The husband's corpse was found buried in his house. He was therefore dismissed from his post, had his nose and ears cut off and was imprisoned in a hill-fort.70 To lose the nose and ears was a proverbial metaphor for dishonour in Maharashtra (and elsewhere in India); in both these cases the

66 Ibid., v, p. 222. 67 Ibid., vii, pt. 2, p. 240, doc. 641; and Gune, Judicial System, App. B-IV, p. 367. 68 Gune, Judicial System, App. B-IV, p. 359. 69 S.S.R.P.D., viii, pt. 3, p. 108. 70 S.P.D., xli, p. 24.




sexual element in the offence seems to have led to the excision of these appendages rather than others.

The same logic struck at the hand that had reached out to steal - three men who had stolen from a shopkeeper and been caught in possession of the stolen property were to lose a hand each and be released.71 Again, when a gang of robbers was broken up, the worst offenders were condemned to death, but others suffered various mutilations. Thus Mhakoji Sinda, Jatya Jagtap and Yesu Berad had each gone on a single raid, and were therefore classed as middling (madhyama) offenders; they were to lose the left foot and the right hand. Three men were classified as lesser (kanishtha) offenders: one was a barber who had served the gang for three years, the second a new recruit who had been with the gang for only a month and never participated in a raid, and the third was the father of one of the leading dacoits, who had never participated in a robbery himself, but was, perhaps, paying for the sins of his son. All three were to lose their right hands.72

This was not an unusual assortment of punishments: a few years later another gang of robbers was apprehended, and while twenty men were beheaded, thirteen lost the right hand and left foot, eighteen the right hand alone, one the right hand and right foot, four the right hand and one ear, and one only a single ear.73 Minor involvement in treasonable plots, such as that to release Sakharam Hari, a political ally of the English during the Anglo- Maratha war, could also lead to mutilation. Several persons were blown from cannon for this plot; Tanaji Naik turned informer, and got off with the loss of his right hand. Khandoji Shejwalkar had newly joined the garrison as a substitute for his cousin and knew of the scheme - owing to his rawness he also escaped with only the loss of his right hand. The same punishment awaited three low-caste men, Mangs, who killed a cow.74

Death This most dramatic and final of punishments has attracted considerable scholarly attention all over the world. Various writers have emphasized the theatrical and participatory nature of the ritual of execution, and discussed the contradictory currents of popular

71 S.S.R.P.D., viii, pt. 3, p. 95. 72 S.P.D., xliii, pp. 114-15. 73 S.S.R.P.D., viii, pt. 3, pp. 96-9. 74 Ibid., pp. 77, 117.




feeling with respect to it.75 Interesting though much of this work is, it perhaps concentrates excessively on this penalty to the neglect of the commoner mechanisms of social control - surveillance, mockery, censure and violence, fines, stripes and the local gaol. The death penalty was not widely inflicted under the Marathas, and even in cases of murder there seems to have been an effort to avoid its use. Armed robbery, which could shade imperceptibly into rebellion, often attracted this penalty, but even there "if the criminal could pay a fine or a handsome bribe, and get a puttel [village headman], or tangible person, to become security for his future good behaviour, he was often set at liberty".76

When it was inflicted this seems to have been done quite unceremoniously, the orders usually simply specifying that the person should be beheaded. Occasionally additional refinements seem to have been introduced for particularly heinous criminals. Thus in the case above where twenty men were beheaded, and others lost various limbs, one person was to be paraded in dis- graceful attire and then be killed with a mallet - probably by smashing his head with it.77 Again, in 1774-5 Baloji Karale, a fort commandant who had been found trying to betray his charge, met an exemplary end by being blown from the mouth of a cannon - a punishment the more terrible in that it would make the performance of last rites extremely difficult. Baloji's son Sambhaji, sentenced to lose a hand and a foot, would also have had to cope with the unappeased spirit (preta) of his father.78 Raghunathrao, the contender for the peshwai whose ambitions sparked off the strife that consumed the Karales and many others, was, when captured, merely sent off into a comfortable captivity.79

Very occasionally, high status was no protection. Early in 1801 Vithalrao Holkar, scion of the ruling family of Indore, was captured while marauding east of Pune, fettered and despatched to

75 M. Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth, 1987 edn.); Hay, "Property, Authority and the Criminal Law"; and P. Linebaugh, "The Tyburn Riot against the Surgeons", in Hay et al. (eds.), Albion's Fatal Tree.

76 T. Coats, "Notes Respecting the Trial by Punchiet and the Administration of Justice at Poona under the Late Peishwa", Trans. Literary Soc. of Bombay, ii (1820), p. 276.

77 See n. 73 above. 78 S.S.R.P.D., viii, pt. 3, p. 71. 79 C. A. Kincaid and D. B. Parasnis, A History of the Maratha People, 3 vols.

(London, 1918-25), iii, pp. 139-40.




Pune. The peshwa Bajirao (son of Raghunathrao) had two hundred stripes inflicted on him, thus treating him like a common robber, before having him crushed by an elephant. Vithalrao's brother Jaswantrao was at this time still hopeful of a reconciliation with Bajirao, and sent him a diplomatic letter after this event. He wrote: "I understand that my elder Vithalrao Holkar disregarded the Lord's (svami) orders and went towards [the shrine of] Pandharpur and tormented the [holy] region, angering the svami and leading to the outcome"."8 Treason, rebellion, waging war on the sovereign (to put it all in western terms) were clearly not sufficient to account for the execution - rage at sacrilege and disobedience had to be invoked to explain it.

It is possible that Bajirao himself felt some need to justify it, because it was around this time that an anonymous document titled Yadi Apradhi (memorandum of criminals) was compiled and put among the government records in Pune.8" This paper listed a number of crimes over the previous half-century, all except three of which had resulted in the execution of the culprit or culprits. Furthermore all the offenders were persons of some standing; the ordinary highway robber - probably the most common recipient of the death penalty - does not figure here. The earliest case listed is that of Muzaffarjang, officer of the regular infantry, who in 1759 attempted to assassinate Sadashivrao, the peshwa's brother, who was wounded in the attack. Muzaffarjang was put to death. Similarly, Andukhan raised a rebellion in the Karnatak: he was blown out of a cannon. Or again, a Muslim sikalgar (sword-sharpener) who kept a Brahman mistress was crushed by an elephant for this offence. Occasionally the punishments reach a high degree of brutality: thus a leading plotter in the conspiracy that led to the murder of the young peshwa Narayanrao in 1772 was arrested a few years later and brought to the capital. There wicks were tied to his hands, soaked in oil and set alight, burning them up to the wrist, and spikes were driven into his feet. After this his body was pierced with needles and brine poured over the wounds for some days. Finally, he was tied to the leg of an elephant, paraded through the city, killed (probably crushed by the animal) and his

80 Aitihasik Lekha Sangraha [Collection of Historical Writings], ed. V. V. Khare, approx. 24 vols. (Miraj, 1904-27), vii, p. 7072; Holkar's letter from S.P.D., xli, p. 27.

81 This is the "Memorandum" cited in n. 60; the remainder of this section is based on it.




corpse hung up on the road to Katrej. Two soldiers associated with the assassination had been earlier been caught and executed by Haripant Phadke. The memorandum gives no details, so they may simply have been beheaded. A few other cases are mentioned, including a jeweller who stole some of the peshwa's pearls; being an old servant he was not executed but banished from the city. The compiler was driven to swell his list by including the lynching of the warden (kotwal) of Pune, Ghasiram, by an irate mob of Brahmans who were enraged at the death from thirst and suffoca- tion of several Brahmans held in the city gaol; and by adding the execution in northern India of Ghulam Qadir and Ismail Beg by Mahadji Sindhia. Excluding these last two cases, therefore, a well-informed official in Pune could only recollect six cases resulting in the execution of eight persons over forty years of the peshwa's rule. It appears that he was writing from memory - and memory is fallible - but the sparse contents of the memorandum do tend to support the conclusion that formal executions were comparatively rare in the Maratha heartland in the later eighteenth century.

CONCLUSIONS

We end here our survey of a penal regime far removed from the traditional picture of Asiatic despotism, and rather closer to the "soft state" - Gunnar Myrdal's celebrated characterization of modern India. "Softness", of course, should not be understood to mean a r6gime that is uniformly mild towards all; rather it is a r6gime that is hard with the soft and soft with the hard. The Maratha government saw penal power widely diffused among a variety of institutions and shared by many different persons, both de facto and de jure. In this it differed noticeably from the ambitions and even, perhaps, the practice of contemporary western absolutisms, and was less capable of sustained penal violence than even the relatively weak British government of the time; a government that, as Lawrence Stone has noted, tolerated the use of violence by many social groups within its territory.82 There was present, none the less, the dominant notion that the Hanoverian

82 This impression is shaped by Gatrell et al. (eds.), Crime and the Law; Hay et al. (eds.), Albion's Fatal Tree; D. Parker, "Sovereignty, Absolutism and the Function of the Law in Seventeenth-Century France", Past and Present, no. 122 (Feb. 1989); the reference is to L. Stone, The Past and the Present (Boston, Mass., 1981), pp. 193-4.




state could assert its monopoly of sustained coercion, and this was periodically reinforced by reading the Riot Act in England, and by more brutal measures in times of turmoil in Scotland and Ireland. The softer Maratha regime could not lay claim to such a monopoly - and its penal practices reflect its characteristics as a state that held only a major and fluctuating measure of power conjointly with many powerful and resilient social groups, and one at all times compelled to be aware of the constraints on its abilities.83

Not surprisingly, therefore, it was more willing to proceed to extremes with the feeble and humble than with the great and powerful: robbers who looted a few houses might be hanged, but generals who devastated whole districts would have to be concili- ated. When Bajirao had Vithalrao Holkar executed in 1801, and compounded his blunder by failing to conciliate his successor Jaswantrao, he made an enemy who was shortly to drive him from his capital and force him into dependence on the British, who ultimately removed him from power and annexed his territories in 1818.84 Clemency and moderation in punishment were thus dictated by policy, if not by humanity. Perhaps even the relative simplicity of punishments - the absence, in most cases, of display and humiliation - might have had such considerations behind it. In a collection of political precepts prepared for the young peshwa Madhavrao Narayan in 1783 we find the following advice on administering justice: "Do not humiliate others, this insults them and breeds enmity in their minds; if they find the means, they will destroy you".85 The penal r6gime is, after all, an aspect of the political r6gime.

Nehru Memorial Museum and Library, Sumit Guha New Delhi

83 This conception is, of course, derived from the highly original work of Wink, Land and Sovereignty in India, esp. pp. 183-95.

8 A complete narrative is S. G. Vaidya, Peshwa Bajirao II and the Downfall of the Maratha Power (Nagpur, 1978).

85 Sadhana Parichaya, ed. Apte and Oturkar, p. 177.



An Indian Penal Regime of the 18th century

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