October 29, 2013
The severest punishment a man can receive … is (to be) subject to the whip of his own repentance.- Seneca - Roman philosopher, statesman and dramatist (BC4-AD65).
On October 22, 2013, according to AFP report, the Sultan of Brunei introduced tough Sharia-law, including death by stoning for crimes such as adultery. Based on individual cases, punishment could also include severing of limbs for theft and flogging for violations ranging from abortion to alcohol consumption.
Crime and punishment have been subjects of interest from ancient Greek and Roman civilizations and also in Biblical times as reflected in the following references.
Eye for an eye, tooth for tooth, hand for hand, foot for foot. – Deuteronomy XIX 21 (Old Testament). (Alluding to this Gandhiji had said: An eye for an eye will make the whole world blind.) Elsewhere in the Bible, it is said: “It were better for him that a millstone were hanged about his neck, and he cast into the sea.” – Luke XVII -2 (New Testament) - indicating the prevalence of such punishment then.
Crucifiction was one of the punishments, as in the case of Jesus. People were fed to lions. They were also tied to horses which raced in the arena till accused died of bruises – as seen in the film Ben-Hur. They were also put to death by burning, as St. Lawrence, who is courted by devotees for favours at his Karkala (Attur) shrine, bound with chains, on a gridiron, over live coals. Shooting point blank has been an option in some modern dictatorships.
If you think it is all ancient and barbaric, discerning readers would have learnt about cutting limbs and whipping in some Middle East countries. Whipping also goes by other names like caning, flogging and scourging – as Jesus was infamously scourged in the court of Pilate before he was condemned to death on the cross.
When we in India think that even whipping is a barbaric punishment, it is interesting to recall that whipping was common punishment in India in the early decades of the last century. How do I know? I came upon an interesting book on law written by the first Mangalorean Catholic District and Sessions Judge working for the Madras Presidency (Province). So, before coming to whipping proper, let us have a bit of background on the concerned judge
Joseph Custodius Fernandez (1864-1929) was the first Mangalorean to obtain BA, BL and ML way back in 1911. He wrote a law Manual titled Guidance for Special Magistrates to which I am given access by his grandson, Michael Fernandez, a retired State Bank manager, a hard-core conservationist, living at Attavar in his ancestral cottage. Joseph had his education in Rosario church School, St. Aloysius school and Madras Law College.
In his Preface dated December 1921, Joseph refers to Justices of Peace in England and apparently there were similar Special Magistrates in the Madras Presidency outside the cadre of regular judicial officers. In the Preface, Joseph says: “The Manual has been compiled under the instruction of the Government of Madras for the guidance of Special Magistrates in the Presidency of Madras in the discharge of their functions as such. These functions are not co-extensive with those of stipendiary Magistrates, and being circumscribed in their scope by virtue of their appointment as a subsidiary magisterial agency for the exercise of only some of the powers vested in their confreres, the Manual deals with only those aspects of Criminal Law and Procedure with which Special Magistrates are concerned, and embodies the general principles of Indian Evidence Act with some necessary elaboration of details.
Bearing in mind the fact that most Special Magistrates are appointed from among persons without legal training and forensic experience, the object aimed at has been to present these matters in as simple a manner as possible so as to be easily understood and applied.”
Chapter XIII of the manual, starting on page171, has the following Sections of Criminal Procedure Code in respect of “Whipping” as noted in Joseph’s Manual.
Section 390 – When the accused is sentenced to whipping only, the sentence shall be executed at such place and time as the court may direct.
Section 391 – (1)When the accused is sentenced to whipping in addition to imprisonment in a case which is subject to appeal, the whipping shall not be until fifteen days from the date of the sentence, or if an appeal is made within that time, until the sentence was confirmed by the appellate Court; but the whipping shall be inflicted as soon as practicable after the expiry of fifteen days, or, in the case of appeal, as soon as practicable after the receipt of the order of the appellate court confirming the sentence. (Going beyond the Joseph Manual, readers will note the short time-frame mentioned in contrast to today’s no-time frame situation)
(2) The whipping shall be inflicted in the presence of the officer in charge of the jail, unless the judge or magistrate orders it to be inflicted in his presence.
(3) No accused person shall be sentenced to whipping In addition to imprisonment when the term of imprisonment to which he is sentenced is less than three months.
Section 192 – (1) In the case of a person of or over sixteen years of age, whipping shall be inflicted with a light rattan not less than half an inch in diameter, in such a mode, and on such part of the person, as the Local Government directs and, in the case of person under sixteen years of age, it shall be inflicted in such mode and on such part of the person, and with such instrument, as the Local Government directs.
(2) In no case such whipping exceed 30 stripes and in the case of a person under sixteen years of age, it shall not exceed fifteen stripes.
Section 194 – (1) The punishment of whipping shall not be inflicted unless a medical officer, if present, certifies, or, if there is not a medical officer present, unless it appears to the Magistrate or officer present, that the offender is in a fit state of health to undergo such punishment.
(2)If, during the execution of the sentence of whipping, a medical officer certifies, or it appears to the Magistrate or officer present, that the offender is not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally stopped.
I leave it to the readers to speculate or determine whether these provisions are still on the statute book or deleted or are not enforced.
They must have been there till early 1950s because I was whipped then following a spat between me and a labourer’s son on my way to the high school. It went to the Panchayat Court and it was decided that both boys should be inflicted six whippings. Generally it is executed by the village Patel. But, in this case, considering my father’s high status, the fathers were given the task of whipping. The boy’s father was given the first choice and the boy wore only an underwear (Komana in Tulu). He took the full brunt of the whipping, perhaps because poor people are used to whipping their children. The whip (a slender cane) was thoroughly split by the time it came into my father’s hand and it went over my short pant and shirt. After one stroke, as my father attempted the second, the stump of the whip slipped from his hand. The rich Bhramin Patel was secretly happy at the turn of events and could not find a second cane in his Panchayat office-cum-residence.
John B. Monteiro, author and journalist, is editor of his website www.welcometoreason.com (Interactive Cerebral challenger). His latest book, Corruption – India’s Painful Crawl to Lokpal, published in USA and priced at $ 21.5. is available online from Amazon.com and other leading online book-sellers.