Sikh Jurisprudence, Part 1: Justice in the Misl Territories

A comparative analysis of crime and punishment amongst the Sikh Misls of the late 18th century Punjab

Introductory Remarks

There are several difficulties in establishing what a Sikh system of jurisprudence could be. Rather than setting down strict situational rules, Sri Guru Granth Sahib and Sri Dasam Granth Sahib are focused on internal spiritual growth, the nuances of social behavior, and tales of martial valor. With few exceptions, the secondary rehitnama tradition and other historical Sikh literature are for the most part meant to guide the spiritual life of a practicing Sikh, written during a time of anarchy and persecution in the Punjab. When Sikhs do achieve a formalized statehood under Maharaja Ranjit Singh, there is unfortunately little hint given to the philosophy used by the courts of the land.

But that is not to say that there was no semblance of legal thought in the Sikhs of the past. When comparing them to the seemingly-polished courts of today’s modern society, it is important to remind ourselves that legal philosophy is simply a tool with which to deal with human issues. As the unorthodox defender of purposivism Judge Richard A. Posner posits in How Judges Think (2008),

“‘Law’ in a judicial setting is simply the material, in the broadest sense, out of which judges fashion their decisions. Because the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide, judges perforce have occasional—indeed rather frequent—recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies. As a result, law is shot through with politics and with much else besides that does not fit a legalist model of decision making.”

Judge Richard A. Posner of the Seventh Circuit (retd.)

Judge Syed Mohammad Latif (1851-1902) was one of the first native historians of Punjab to write his work in English. He worked different jobs in the new colonial judiciary, even serving as a judge for some years. A member of the influential Royal Asiatic Society of Bengal and Anjuman-i-Punjab, as well as a candidate for the Punjab Chief Court before his passing, he commanded wide respect in the fields of law and history. His authoritative History of the Punjab (1891) takes the reader through what was known of Punjab’s ancient civilizations up to the Anglo-Sikh Wars. That being said, he was also quite loyal to the British Raj, which he saw as a boon to the development of India. Even so, he labored through many sources to produce a work intended to share the story of Punjab and Punjabis with the world.

Judge Syed Mohammad Latif (1851-1902)

Criminal Law in the Misl Territories

In the Sikh Misl period of the late 18th century, it would appear that there were two avenues for criminal justice: either sardars, or chiefs, who functioned as judges in informal criminal proceedings, or the matter was decided in the panchayat, or council of village elders. In his History of the Punjab (1891), Latif lists how different crimes were punished in Misl territories:

1. Murder: The sardar would not mete out punishments themselves, instead they would hand the offender to the deceased’s family, and he would be killed however the family sees fit.

2. Larceny/Theft: First, the victim pays a sum equal to a quarter of the value of the stolen property to the thanedar, or local officer, to initiate the case. If caught, the culprit would, like in the case of murder, be handed to the family. However, unlike murder, in cases of larceny a culprit would have the option of paying a nazrana, or a hefty fine, that would be divided between the sardar and the thanedar. If such a nazrana was paid, the victim would be returned the stolen property if possible, and that would be the end of the matter.

3. Cattle Theft: For the theft of cattle, the animal around which much of North Indian society revolved, a special method of resolving disputes was used called khoj or suragh. It involved tracing the steps of the cattle to determine its whereabouts. The owner of the land that the cattle trail leads to would have the burden of showing that the tracks continue past his land. If he fails to do so, he would owe the victim a sum equal to the value of the stolen cattle. Latif mentions that the practice of suragh continues in the colonial courts of Punjab.

4. Highway Robbery: Often conducted by men under neighboring sardars, it would appear that the only route to justice was for the victims to form an armed party and attack the offenders. The sardar of the territory could presumably get involved, however Latif does not mention if this was the norm.

5. Witchcraft: Although the punishment is not mentioned, evidence such as “the possession of a waxen image or dough effigy, half burnt human bones, or an amulet, or charm wrapped up in paper and labelled” could all be regarded as proof of sorcery.

6. Heinous Offenses: Although Latif is silent as to what is meant by “heinous offenses” (perhaps included here are battery, rape, and crimes of a religious nature), he mentions that culprits could lose their eyes, hands, and other body parts, although as in larceny they have the option of paying a heavy fine to avoid such punishment.

Painting of three seated Sikh sardars (from left-to-right): Nahar Singh, Karam Singh of the Shaheedan Misl, and Lehna Singh of the Bhangi Misl, circa late 18th century

Latif also mentions how the administration of justice was carried out. In the investigation of such crimes, heavy-handed measures were used to elicit confessions and locate stolen items. If the accused was acquitted, he would pay a small shukrana, or thank-you sum, to the sardar. If convicted, he was to pay a heavy jarmana, or a punitive fine. Failing to pay such fines could land one in a taikhana, or dungeon, or lead to the extortion of the balance from the culprit’s family.

Justifications

There are four justifications for criminal punishment in the Western legal canon, namely retribution, deterrence, isolation, and rehabilitation. It would appear (perhaps obviously so) that retribution figures prominently in the justice meted out by the Misl Sikhs, with little thought given to the rehabilitation of the victim. The nature of the punishments likely had a moderate effect of deterring the common people from engaging in such conduct. Indeed, the mid-18^th century text Prem Sumarag, which shall be discussed thoroughly in Part 2 of this work, counsels,

“A judge should be appointed in every pargana town to adjudicate, in accordance with the principles of justice, whatever [legal] issues may be referred to him. This he should do after consulting the faujadar. If any person violates the rights of another and commits thereby a [serious] injustice the judge [should request] the faujadar to have him beheaded. This will deter others from indulging their greed and committing crimes [to satisfy it].”

A natural response to such a system may be to call it barbaric, and indeed it may offend many of a modern sensibility. Latif seems to anticipate such objections, and he points out that

“Mutilation does not appear to be the peculiar characteristic of eastern nations. Statutes were passed in the reigns of Henry the VIII (1509-1547), Edward the VI (1547-1553), Elizabeth (1558-1603), and James I (1603-1625), directing the loss of the sight and left hand and of an ear for heinous offenses. ‘An eye for an eye, and a tooth for a tooth,’ is the Mosaic law. This law is the law of retaliation.”

Hammurabi’s Code, one of the earliest examples of “lex talionis”, or the law of retaliation

Perhaps it is relevant here to note that around the same time, the leaders of the fledgling United States of America, who prohibited cruel and unusual punishment in the Eighth Amendment of their constitution, saw nothing wrong with punishments such as flogging, tarring and feathering, and public hanging. In the Supreme Court case of Graham v. Florida (2010), Justice Kennedy summarized the legal test the court had developed over the years for Eighth Amendment cases,

“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’ This is because ‘the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’”

Could a similar approach be used in developing a Sikh legal philosophy? Instead of focusing on what the punishments actually were, it may be better to dive into the reasoning that underlies such punishment. As has been discussed above, the most prominent justification for the criminal punishment carried out by the Sikh Misls is retribution. Is this simply a product of the chaotic environment of 18^th century Punjab, or is there something deeper at play here?

Extracting The Principles, A Prologue

In Kavi Santokh Singh’s magnum opus Gurpratap Suraj Parkash Granth (1843), a follower of Dadu Dyal (1544-1603) named Jait is said to have met Guru Gobind Singh. They discussed the use of violence, with Jait reciting a couplet of Dadu’s,

ਦੋਹਰਾ । ਦਾਦੂ ਸਮਾ ਬਿਚਾਰਿ ਕੈ ਕਲਿ ਕਾ ਲੀਜੈ ਭਾਇ । ਜੇ ਕੋ ਮਾਰੈ ਢੀਮ ਇਟ ਲੀਜੈ ਸੀਸ ਚਢਾਇ

"(Dohra) Dadu, in contemplating the state of our Age of Darkness, if one hits you with a mud brick, then lower your head [and forgive them]."

The Guru then responded with His own twist on the couplet:

ਦੋਹਰਾ ।ਦਾਦੂ ਸਮਾਂ ਬਿਚਾਰ ਕੈ ਕਲਿ ਕਾ ਲੀਜੈ ਭਾਇ ।ਜੇ ਕੋ ਮਾਰੈ ਈਟ ਢੀਮ ਪਾਥਰ ਹਨੈ ਰਿਸਾਇ

“(Dohra) Dadu, in contemplating the state of our Age of Darkness, if one hits you with a mud brick, ferociously strike back with a stone boulder.”

                                                      (credit: Jvala Singh of Manglacharan for the translation)

This is an example of the fundamental move from the concept of ahimsa, prevalent in many bhakti traditions, to a focus on retributive justice that was to inform the decision-making of the young Khalsa. The root of such moves can be traced farther back to Sri Guru Hargobind Sahib adorning the twin swords of Miri and Piri, and telling the visiting Sant Ram Das (1608-1681) that although internally a hermit, he has adorned himself with weapons to protect those in need and deliver justice to tyrants. (Panjah Sakhian)

A contemporary painting of the Sixth Guru of the Sikhs, Sri Guru Hargobind Patshah.

Sir William Blackstone’s highly influential Commentaries on the Laws of England (1770) is considered a foundational text of the Anglo-American legal tradition. He remarks that,

               “Public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity.”

but,

               “It is clear, that the right of punishing crimes against the law of nature… is in a state of mere nature vested in every individual. In a state of society this right is transferred from individuals to the sovereign power… whatever power therefore individuals had of punishing offenses against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community.”

When it comes to border disputes between misls, Latif casually remarks that they would engage in petty warfare to expand or protect their territories. But as seen in the case of highway robbery, a right reserved to the victim is the ability to arm themselves and get their property back through the use of force. This is different from Blackstone’s position, that the individual has given up the power to punish crimes committed against himself to the state, which is the default social contract of modern government.

However, referring back to Prem Sumarag, it advises,

               “Whenever any individual commits either an evil deed or a virtuous one, causing thereby either grief or joy, the responsibility is shared equally by the ruler and his subject. Whenever anyone living under his authority causes happiness, the ruler receives a share of the merit earned thereby; and likewise a share of the demerit whenever any subject causes suffering. He partakes of both the vice and the virtue of his subjects. In the court of Sri Guru Nirankar Akal Purakh a ruler will be interrogated on issues of justice. He will be asked about these and nothing else.”

Thus implied here is the idea that it is the ruler of the territory who is ultimately responsible for righting the wrongs of those who live on his land, an idea that finds resonance in Blackstone’s vesting of such power in the magistrate. The dissonance between Prem Sumarag and actual Misl behavior will be further explored in Part 2 of this work.

One may now be wondering what Gurbani has to say on such topics. Sri Guru Nanak Dev Ji penned His conversation with Bhai Lalo when Babur invaded the Indian subcontinent in the 1520s, wreaking havoc through Punjab and committing crimes against humanity. The Guru noted,

ਕਰਤਾ ਤੂੰ ਸਭਨਾ ਕਾ ਸੋਈ ॥

Creator, you are the Master of all

ਜੇ ਸਕਤਾ ਸਕਤੇ ਕਉ ਮਾਰੇ ਤਾ ਮਨਿ ਰੋਸੁ ਨ ਹੋਈ ॥੧॥ ਰਹਾਉ ॥

If a man of means attacks an equal, the mind will not get angry

ਸਕਤਾ ਸੀਹੁ ਮਾਰੇ ਪੈ ਵਗੈ ਖਸਮੈ ਸਾ ਪੁਰਸਾਈ

But if a powerful tiger attacks a flock of sheep, its master will have to answer

ਰਤਨ ਵਿਗਾੜਿ ਵਿਗੋਏ ਕੁਤੀ ਮੁਇਆ ਸਾਰ ਨ ਕਾਈ ॥

This jewel (the country) has been destroyed, defiled by dogs, with no one to care for the corpses

Note that implied here is that two equal forces causing harm to one another is not seen as inherently unjust, again reflecting the right reserved by the common man to rectify wrongs committed against him. It is likely in the Misl era that smaller disputes were often resolved without the involvement of the sardar, indeed it is possible that most of the cases in which the sardar was involved were when a “powerful tiger attacked a flock of sheep”. But what should the guiding legal presumptions be when adjudicating such situations? Grand notions of retribution and justice sound pleasing to the ear, but a legal philosophy requires some substantive principles that can be drawn upon to decide cases. Consider a few from American law: innocent until proven guilty, the right to due process, the “beyond a reasonable doubt” standard, proximate causation, etc. In the next installment, we will delve deeper into Gurbani, Prem Sumarag, and other sources to further extract possible legal principles from Sikh philosophy.