Traill was both the progenitor and most active early expounder of the paternalistic and infantilizing discourse of the Paharis as nature’s children. This discourse was not unnuanced, however, and in his ‘Statistical Sketch,’ the first detailed publication on Kumaon to reach a wider audience, he expressed a complex view of the character of the Kumaoni people whom he described as:
156 Honest, sober, frugal, patient under fatigue and privations, hospitable,
good humoured, open; and usually sincere in their address, they are, at the same time, extremely indolent, fickle, easily led away by the counsel of others, hasty in pursuing the dictates of passion, even to their own immediate detriment, envious of each other, jealous of strangers, capable of equivocation and petty cunning, and lastly, grossly superstitious.14
The complexities of Traill’s views notwithstanding, his central belief, a belief that prefaced and framed the criminal justice system that emerged in the Extra-Regulation Order, was that ‘[o]f the honesty of the hill people, too much praise cannot be given.’15 He went on to add that, as a consequence, the criminal justice system ‘calls for little notice, as the general absence of crimes in this province, renders this branch of
administration of minor importance.’ The only exception to Traill’s positive perception of general honesty of the Kumaoni people was to found in in his views of the outcaste dom (Dalits) whom he believed were ‘commonly of loose and dissipated habits,
confirmed, if not acquired, by continued intercourse with the plains.’16
On the plains, particularly in the disturbed Ceded and Conquered Provinces below Kumaon, imposing law and order had been a critical element to establishing and
legitimating the Company’s rule and ensuring the flow of revenue.17 For much of this law, the Company had turned to the Sharia-based text of the ‘Fatawa-i-Alamgiri’
developed under the Mughal Emperor Aurangzeb’s patronage for use across his multi- faith empire (Alamgiri is an alternative name for Aurangzeb).18 The Company took the view that this Indo-Islamic criminal law had been imposed by right of conquest and had long prevailed to the exclusion of earlier Hindu criminal law.19
However, as outlined earlier, Kumaon had never come under the direct sway of any of the Indo-Islamic empires of the plains and the criminal law of those empires had never been imposed to the exclusion of existing local custom. Consequently, criminal law based on Sharia, and the Persian language that British had translated the original
14 Traill, ‘Statistical Sketch of the Kumaon,’ p. 217. 15 Ibid., pp. 218, 196.
16 Ibid., p. 218.
17 Panigrahi, Charles Metcalfe in India: Ideas & administration, 1806-1835, pp. 122-23. 18 Banerjee, English Law in India, pp. 30-31.
19 Archibald Galloway, Observations on the law, constitution and present government of India (London: Parbury, Allen &
157 Arabic of the Fatawa-i-Alamgiri into was ‘wholly unknown throughout the hills.’20 This absence of external intrusion had allowed the Pahari people to develop and persist with their local customs and practices around criminal law; practices that they had seen little need to commit to a textual form. In the absence of texts as a source of law, Traill turned to the everyday practices and customs of the Kumaoni people as the source of criminal law.
The earliest archival outline of the formal system of criminal justice that emerged in Kumaon under Company control appeared in two letters to Traill from John Adam, Secretary to Government in the Political Department in October 1816. Prompted by a murder and the ‘[e]mbarrassment, …from the want of a suitable tribunal for the trial of prisoners charged with offences of a heinous nature,’ Adam made it clear that the Company-Government did not intend to introduce the criminal justice regulations that pertained in the rest of the Bengal Presidency ‘where the character habits and manners of the people and their comparative progress in civilization and the arts of life are widely different.’21
Adam outlined that he contemplated bestowing powers analogous to that of a zilla (district) magistrate on the Kumaon Commissioner including general charge of the police and the power of punishing minor offences through fine, imprisonment and corporal punishment. For serious offences—heinous crimes in the parlance of the day—the Kumaon Commissioner would have the power of apprehending, examining and committing offenders who would then be tried by a judge of circuit.
No hint of the confusion, uncertainty and anxiety that Jon E. Wilson asserts were central to understanding the way Company officers practised and administered the law in early-colonial Bengal is apparent in John Adam’s letters.22 Emphasizing that the
administration of criminal justice was seen by him as a simple, everyday, and
20 Charles Hamilton, The Hedaya (The Guide): A Commentary on the Mussulman Laws 2nd ed. (London: Allan & Co,
1870); Traill, G. W. to Registrar Nizamat Adualat Fort William, 26/6/1819, KDRLI, vol: 7.
21 Adam, J. - Secretary to Government to Traill, G. W. – Acting Commissioner Kumaon, 19/10/1816b, KDMLR,
vol: 9; Adam, J. - Secretary to Government to Traill, G. W. – Acting Commissioner Kumaon with an enclosure of a
copy of a ‘Letter to Major General Sir David Ochterlony’, 19/10/1816a, KDMLR, vol: 9.
22Here I refer to Jon Wilson’s primary case study John Shore, 1st Baron Teignmouth, who I will name as John Shore
Snr. to differentiate him from his son also John Shore who I will refer to as John Shore Jnr. John Shore Jnr. is soon to appear in this thesis in Garwhal as Assistant Commissioner.
158 unproblematic practice, Adam noted that ‘[s]ome power of this sort are already of course exercised by the local officers…and no inconvenience either practical or theoretical is likely to be experienced in framing or executing the rules to guide those officers in the exercise which will partake of the magisterial character.’23 Moreover, given the apparent absence of crime in the hills and the ease with which revenue was collected, determining the details of how the criminal law was to be administered in Kumaon did not require urgent action. Rather, Adam believed that there was time to seek information on ‘local usages and habits as may be useful in framing the projected system…’ especially
information on ‘the system of criminal law which hitherto [pertained] in the territory.’24 Traill’s reply to Adam began by outlining that murder was almost unknown in Kumaon and that all crimes that would come under the purview of a Court of Circuit on the plains were both rare and largely committed by natives of the plains associated with the occupying army.25 With only seven people in the newly established jail in November 1816, four of whom were natives of the plains, Traill believed that the number of
criminal trials was unlikely to rise in the foreseeable future to a level that would justify the presence and expense of a resident circuit judge in Kumaon.
To deal with the small number of minor crimes that were committed, Traill proposed that the Kumaon Commissioner be invested with the power to decide cases of up to three years imprisonment. Only cases of ‘murder[,] of aggravated assault with accompanied wounding or maiming[,] of robbery with open violence[,] of dacoity and of burglary…’ needed to be referred to a circuit judge.26 Moreover, in a move that even further distanced the administration of justice in Kumaon from plains influence, Traill also suggested that the circuit judge visit Kumaon from time to time rather than getting witnesses and prosecutors to attend a court on the plains. He argued that most
Kumaonis had a not unreasonable dread of descending to the plains, particularly in the
23 Adam, J. - Secretary to Government to Traill, G. W. – Acting Commissioner Kumaon with an enclosure of a copy
of a ‘Letter to Major General Sir David Ochterlony’, 19/10/1816a, KDMLR, vol: 9.
24 Ibid.; Adam, J. - Secretary to Government to Traill, G. W. – Acting Commissioner Kumaon, 5/10/1816,
KDMLR, vol: 9.
25 Traill, G. W. to Adam, J. – Secretary to the Political Department Fort William, 15/11/1816, KDRLI, vol: 4. 26 Note that the use of commas is very rare in the Pre-Mutiny records and that the punctuation used is often at odds
with current conventions. In most cases the extracts are reproduced as close to the original as intelligibility to modern readers will allow.
159 hot and monsoon seasons, and that both prosecutors and witnesses were unlikely to attend voluntarily at a circuit court located on the plains.
Traill also went on to support Adam’s suggestion that the regulations of the plains should not apply in Kumaon. He felt that the introduction of any code would be
premature, even counter-productive, as ‘the nature of the country and the manners of the inhabitants would for the present render any code which might be introduced
nugatory.’27 Traill further developed this view in later correspondence with George Swinton, Secretary to Government in the Political Department. Here, Traill argued that the introduction of a criminal code, would not only be trivial and worthless but actively criminogenic and ‘in all probability tend only to create the offence for the prevention of which they might be intended.’28
The discussions between Almora and Calcutta during late 1816 and early 1817 resulted in the promulgation of Regulation X of 1817 on 22 July (see Appendix 5.1). This four-page regulation puts forth the basis of the administration of criminal law in Kumaon that would remain unchanged during Traill’s tenure as Commissioner. A distinctive feature of the remarkably brief Regulation X of 1817 is that, other than the ‘heinous’ crimes nominated under Sec. II which were to be the purview of a visiting judge of circuit, the Regulation made no mention of what was to be considered a crime. The Regulation defined the limits of geographic space in which it was to operate. It limited its operation to offences that occurred after Company occupation. It also limited
punishments to being no greater than those prescribed by the regulations of the plains. Finally, it set out the simple procedures the Kumaon Commissioner must follow to refer cases of heinous crime to a visiting judge of circuit. However, Regulation X is silent on what most offences were, the form policing should take, how trials were to be conducted and what punishments were to be given. These matters were left almost entirely up to Traill’s discretion.
27 Traill, G. W. to Adam, J. – Secretary to the Political Department Fort William, 15/11/1816, KDRLI, vol: 4. 28 Traill, G. W. to Swinton, George – Secretary to Government Political Department,, 16/5/1821, KDRLI, vol: 7.,
160
Making the courts state-centred
On the plains, the Company had only slowly taken control of the existing judicial infrastructure, with direct control of native courts not implemented until the Cornwallis reforms of 1793. In contrast, and in a move that ensured the justice system of Kumaon quickly became state centred, Traill immediately took sole and almost absolute control of the courts. For more than a decade, he was the region’s only judicial officer apart from the occasional visit of a judge of circuit.29 It was in Traill’s everyday judicial practices then, informed as they were by the ‘will of the whole community,’ in which ‘evidence’ of the criminal law of early-colonial Kumaon is to be found.
In the ‘Statistical Sketch,’ Traill outlined that many of Kumaon’s earlier custom and practice centred on crime had been substantially transformed by the Gurkhas. Under their rule, the justice system had largely become an instrument of public finance with little relation to local sentiment or sense of justice.30 Before the arrival of the Gurkhas, petty criminal matters and the policing in the ‘interior’ were dealt with by local foujdars (governors), while serious crimes and those arising in and around Almora or Srinagar had been dealt with by the Diwan of the Chand Raja’s court. While this system was not without arbitrary and despotic aspects, it did operate within the conventions of local custom and practice.31
However, as discussed earlier, under the Gurkhas, the revenue of each pargana had been assigned directly to individual Gurkha commanders to enable them to pay their troops. With this, came the judicial powers to enforce payment and punish crime. Under this model, maximizing revenue collection and not justice was the primary focus of the criminal justice system, and a swath of novel finable offences were introduced simply to raise revenue. The most notorious of these was a prohibition in Garhwal on women being on rooftops where firewood, crops and clothes were stored and dried. As access to
29 Tolia, Founders of Modern Administration in Uttarakhand, 1815-1884, p. 30. Note that B. H. Hodgson was assistant to
Traill September 1819 to April 1820 but there is no evidence he took up judicial duties during his brief tenure.
30 Traill, ‘Statistical Sketch of the Kumaon,’ pp. 171-72. 31 Ibid., p. 170.
161 this space was essential to the domestic economy of the region, there was little alternative for most Paharis other than to pay this fine/tax as a cost of living.32
With the much of the custom and practice around crime transformed and corrupted to meet the needs of the Gurkhas, and the institutions of the system in the hands of farmers, Traill chose to dominate the system himself and take all judicial matters under his own cognizance. His clear ambition in this action was to restore confidence in the justice system and return as many of its practices as he felt comfortable with to those of the pre-Gurkha period.33
Hybrid court practices
Traill argued that, while the specifics of the custom and practice centred on crime and the personnel who had administered the system had been transformed and corrupted under Gurkha rule, the forms of investigation and decision in criminal matters had changed little, and he continued with the practices he found in place.34 Trials conducted by Traill were unstructured summary processes, and examination of the parties concerned was by simple, direct viva-voce questioning. Traill found that this was usually sufficient to make the merits of a case clear, particularly as all witnesses usually agreed on what had occurred and that ‘the evidence of any witness is seldom required as the parties commonly agree wholly in their statements and admissions.’35 If doubts or contradictions existed an oath was occasionally administered in a ceremony where a copy of the Harbans (a section of the Mahabharata) was laid on the head of the witness. However, Traill believed that ‘[t]heir simplicity of character [Pahari people] and common adherence to truth is however such as to render it extremely easy to elicit the whole truth without recourse to the
ceremony, and indiscriminate application to it in all occasions is therefore uncalled for and would only tend to weaken its force.’36
Prior to Company occupation, and in practices common across the hills, the criminal justice system had often resorted to divination and ordeal to decide cases where
32 Ibid., pp. 172, 89.
33 Tolia, Founders of Modern Administration in Uttarakhand, 1815-1884, p. 30.
34Raper, ‘The Sources of the Ganges.’ See page 499 for the only known available contemporary report of criminal
trials in Kumaon under Gurkha rule.
35 Traill, G. W. to Swinton, George – Secretary to Government Political Department, 16/5/1821, KDRLI, vol: 7. 36 Ibid.
162 no eyewitness accounts were available.37 The divination often took the form of the names of the parties being written on separate slips of paper which were then rolled up and placed before an idol in a temple. A priest of the temple would then choose one of the slips of paper, and the person thereon named won the case. Alternatively, with the tarazu ka dip, the witness was weighed and, after resting overnight and engaging in a variety of ceremonies, reweighed. The oath was proven if the witness weighed more in the morning than they had the previous evening.38
Noting that the oath of ordeal of taking poison had disappeared from Kumaoni justice practices in earlier times, Traill believed that several forms of the oath of ordeal had persisted right up to Company occupation. One was the gola dip in which a red hot iron bar was placed in the hands of the defendant and carried a certain distance. Another was the karai dip in which the defendant’s hands were plunged in boiling oil. The truth of the oaths was attested by the absence of burn marks on the hand of the oath taker. Alternatively, with the tirka dip, the witness placed his head in a barrel of water while a companion ran and fetched an arrow that had been shot away, with the oath being proved by the witness’s head remaining submerged in the barrel until the companion returned.39
Traill was silent in his official correspondence regarding the fate of the various oaths of ordeal in his courts, and any reader of the ‘Statistical Sketch’ would most likely come away with the impression that the oaths of ordeal were practices of the pre-colonial past. But it is clear from later correspondence that Traill quietly retained at least the gola dip as valid evidence in cases involving religious and caste prohibitions. This only came to light after Traill’s departure when a somewhat disbelieving and newly appointed Assistant Commissioner John Hallet Batten wrote to George Gowan in 1837 seeking direction on such practices. Batten outlined that the moonsiff (minor judicial officer) had approached him on several occasions to authorize a gola dip ceremony for cases involving loss of caste and similar issues. Batten had refused these requests but wanted to know if
37Brian Houghton Hodgson, ‘Some Account of the Systems of Law and Police as recognised in the State of Nepál,’ Journal of the Royal Asiatic Society of Great Britain & Ireland 1, no. 02 (1834).
38Traill, ‘Statistical Sketch of the Kumaon,’ pp.170-73. 39 Ibid., pp. 172–73.
163 the gola dip was the normal practice of courts in Kumaon and if its use had been approved by a higher authority.40
Gowan responded to Batten’s alarm about using the oath of ordeal by assuring him that the gola dip indeed continued to be practised by courts in Kumaon. He outlined that its use was a power vested solely in the sanction of the Commissioner and the ceremony was superintended by the court pundit. Gowan allowed that the practice was ‘a remnant of ignorance and barbarianism…sanctioned by immemorial usage…’ but, as the gola dip was easily rigged to give the desired result ‘if a poor creature can be restored