As noted in chapter 2, Jon E. Wilson has recently highlighted the role that the emotional reaction of Company officers to Bengali culture played in framing and engendering the codified laws that the Company implemented in the Regulation Provinces.3 He argues that this new model of legal practice was, as much as any other factor, a pragmatic response to the anxiety many British officials felt in applying law as an everyday reflexive practice in a cultural setting in which they were strangers. Traill’s emotional reaction to Pahari culture, indeed the reaction of most of the foreign community to mountain cultures in South Asia more generally, was radically different from the general reaction to Bengali culture on which Wilson’s analysis is based. Rather than feeling estranged and distant from the Pahari, Traill and others were plainly at home in the hills and felt comfortable engaging with Pahari culture and law.
The emotional reaction of the British and other members of the foreign
community during colonial rule to the subcontinent’s mountain people is a central theme in Dane Kennedy’s work The Magic Mountains.4 He argues that there was a persistent endeavour under both the Company and Crown Raj to cast Paharis and other mountain peoples as ‘natures children’ who, being of superior moral and social character, were the antithesis to the intractable and unfathomable people of the plains.5 Although disturbed by Pahari practices such as polyandry and the treatment of women, many of the foreign community saw ‘[t]he religion of the Puharies [as] a simple form of Hindooism, free from some of its worst features as followed on the plains.’6 This positive view of Pahari
culture vis-à-vis plains culture was not just a simple dichotomy and was differentiated by the degree of cultural and physical remoteness from the plains. James Baillie Fraser, travelling with his brother William Fraser, the Company’s initial Political Agent to the
3 Wilson, The Domination of Strangers: Modern Governance in Eastern India, 1780–1835, pp. 56-74.
4 Kumaon was a particular favourite of American missionaries; even establishing their own hill-station at Abbot
Mount above Loharghat.
5 Kennedy, The Magic Mountains: Hill Stations and the British Raj, pp. 63-87.
153 Hill States just after occupation, expressed this differentiation as ‘[t]he farther removed from the plains, the heat, and the more accessible parts of the country, the higher does the highlander seem to rise in activity of mind and body.’7 In the hills of Kumaon, this put the sanskritized thuljat who often claimed plains origins at one end of this virtue spectrum, the native Khasa that demographically and culturally dominated the region in the middle, with the ethnically Tibetan Bhotiya (modern spelling of Bhotia) of the high Himalayan valleys at the other.8 Recent immigrants from the plains and the various plains-based ne’er-do-wells who infested the Bhabar and Terai each cool season to engage in crime did not register on the spectrum at all.9
This emotional disposition towards the Pahari held complex views in dynamic tension. On the one hand, the Pahari were cast as a child-like people not yet despoiled by contact with the corrupting influence of the despotism of the plains. Indeed, Traill’s and others writing is tinged with a regretful awareness that he and the Company more generally were to be the agent of their fall from grace. On the other hand, the treatment of women by the Pahari was challenging to even the most sympathetic of Company officers. This dynamic tension was perhaps most elegantly put by C. P. Kennedy, the Company’s Political Agent to the Shimla Hill States in 1824, who wrote:
Where there is so little crime, it may be inferred that the morality the inhabitants is the cause; certain it is that there is less falsehood and theft than in any quarter of Asia. There is a degree of simplicity too amongst these people …that induces an idea of a certain degree of morality existing, but when we take into consideration some of the customs peculiar to them, our belief is shaken. It must be remarked, however, the people consider them no crime whatever, and in consequence we ought to view them more leniently. It may not be so much vice as ignorance. No horror is expressed at the violation of female chastity. Shame hardly exists in some of the remoter states.10
In the light of his emotional disposition towards the Pahari, Traill tried to forestall or at least delay the inevitable pollution of Kumaon’s pristine cultural environment. One
7 Fraser, Journal of a tour through part of the snowy range of the Himālā Mountains, and to the sources of the rivers Jumna and Ganges, p. 204.
8 This is a simplistic schema of the ethnic kaleidoscope that makes up Kumaon but represents a useful summary.
For a more nuanced analysis see Pande, ‘Stratification in Kumaun circa 1815–1930.’
9 Lushington, G. T. to Secretary Governor-General Judicial and Revenue Department, 18/9/1839, KDJLI, vol: 36. 10C. P. Kennedy, ‘Report of the Protected Hill States Dated 6 July 1824 by Captain C. P. Kennedy, Assistant
Deputy Superintendant Sikh and Hill States,’ in Records of the Delhi Residency and Agency, ed. A Raynor (Lahore: Printed at the Punjab Government Press, 1915), p. 269 para. 25.
154 tactic within this strategy was to limit contact between Kumaon and the rest of the world, and he actively discouraged the presence of non-essential plainsman and members of the foreign community. This reluctance to admit outsiders led one commentator of the time to describe Kumaon during Traill’s reign as ‘all but hermetically sealed to European travellers.’11 Other tactics employed by Traill to limit contact with the outside world included actively seeking a significant reduction in the number of Company troops in the region and to confine those that were there to their cantonments.12 This confinement included a strict curfew on troops and their followers being in Almora after dark with the curfew dramatically announced each evening with the firing of a small cannon and
ceremonial closing of the town gates.13
Nevertheless, new ideas and ways of doing things flowed into Kumaon, and the criminal justice system went through a cascade of innovation in which both Kumaoni and Company practices were transformed. Traill introduced limited aspects of formality to court procedures, emphasized evidence-based decision-making and expunged many oppressive criminal laws and procedures introduced by the Gurkhas. However, inspired by the conservative trope of the likelihood of unintended consequences of reform, he made little change to the basics of what was and what was not considered a crime in the region.
In parallel, Traill made virtually no change to the substance of Kumaon’s system of policing and, at least in the hills, policing largely remained embedded in the dispersed institutions and practices of custom. Moreover, he specifically restrained the tiny police force that he created from initiating prosecutions for all but the most serious offences, relying instead on complaints from the public and aggrieved persons themselves. While this did mean that the voice of some, especially women, could not be heard, this policy ensured that what was and what was not a crime was largely determined by local custom and sentiment, not the forces of the state.
11 Barron, Notes of Wanderings in the Himmala, p. 151.
12 Tolia, Founders of Modern Administration in Uttarakhand, 1815-1884, p. 52.
13 Traill, G. W. to Faithful, Lieut. Colonel - Commanding in Kumaon and Major Thomas, Lieut. Moore and Lieut.
155 Traill may have only introduced limited change to Kumaoni customs around the substance of crime and policing themselves, but he introduced considerable change the forms and modes of their administration by grafting new ideas and practices on to
existing modalities. This hybrid creativity was at its peak in the recording and monitoring of crime and casualties, and he introduced recognizably modern statistical reporting systems. The highlight of these new modes of administration was a series of Police and Judicial Reports that allows today’s reader the benefit of deep insight into the structure and outcomes of the meeting of Kumaoni custom around crime with the Company’s emergent formal governmental practices.
In contrast to the limited amount of change to the substance of crime and
policing in Kumaon, Traill introduced significant change in practices around punishment. Under Company law, he was prevented from participating in existing Kumaoni practices that were cleaved by caste and involved enslavement, disfigurement and dismemberment of offenders. As an alternative, he introduced the novel practices of jailing offenders either locally, at prisons on the plains or, very rarely, beyond seas. These new forms of punishment were to have unforeseen consequences. While punishment by transportation beyond seas was so rare it is difficult to say what effect it had, Traill had concerns that the introduction of a local jail had led to a small but real increase in serious crime. He reported that most Kumaonis, particularly the less advantaged, were indifferent to the loss of their liberty. Conditions in the local jail were better than the common conditions of existence for many Kumaonis, and as a consequence, jail offered little or no
deterrence. Even so, during the Traill era, the prison population remained tiny and the rate of serious crime insignificant.