THE RIGHT TO BEAR ARMS – A COGENT ARGUMENT FOR THE PROTECTION OF THE KODAVA CUSTOM

[monaps1]

The recent times has seen the re-emergence of the demand by some sections of the society residing in Karnataka to revoke the privilege accorded to Kodavas living in Kodagu to bear arms without the need for a license. A PIL filed questions the continuation of the exemption, granted to Kodavas by the pre-independence colonial government of India. It questions the exemption given to Kodavas and Jamma land-owners in Kodagu district under the Arms Act.

The special privilege to own firearms without license was granted to the Kodavas by the British in recognition of their martial traditions. This was continued after independence and there was no curb on the privilege even after Kodagu (Coorg), which was a separate state earlier, merged with Karnataka following the re-organization of the states in 1956. A notification issued by the Union government in 1963 further confirmed that “every person of (the) Coorg race and every Jamma land tenure holder in Coorg” from the Indian Arms Act.

It is the Kodava custom to bear arms. Custom has been defined and opined by various scholars, jurists and authors, some of which are discussed further in this paragraph. “The word custom” as defined by Sapir, “is used to apply to the totality of behaviour patterns which are carried by tradition and lodged in the group, as contrasted with mere random personal activities of the individual.” Radin states that “customs are regarded as habitual ways of conduct among social groups.” While Carter maintains that, custom is the “uniformity of conduct of all persons under like circumstances.” According to Holland, “custom is a generally observed course of conduct.” In Hur Prasad v. Sheo Dayal, custom has been defined as ‘Rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of law.’ Citing Hur Prasad v. Sheo Dayal, Sir Hari Singh Gour states that, ‘Custom is an established practice at variance with the general law.’

B.L. Rice in his gazette of 1878 (Mvsore and Coorg Vol IIP, represented the Kodava cultural identity in the chapter titled “Inhabitants”. He made an exhaustive analysis of the customs, traditions, jewellery, weaponry, dress and the rites-de-passage of the people. The religious practices, language and the personal traits of the Kodavas also formed a major part of his text. “Their mode of life and pride of race impart to their whole bearing an air of manly independence and dignified self -assertion, well sustained by their peculiar and picturesque costume” (218). Therefore my argument for the continuation of the right to bear arms by the Kodava residing in Kodagu stems from the fact that the old gazettes and other books on the life, custom and culture of the lay Kodava during the British days reveals that the British did not accord any privilege de-novo, but in fact it was in recognition of the prevailing customs and traditions of the native Kodava - the use of the gun, the Odikathi (a small broad bladed sword) and the Peechekathi (a type of dagger) as a part of his day to day life, be it for hunting or while tilling his fields, the common Kodava used to carry these essential items on his body. Further, these arms are inseparably linked with many of the Kodava ceremonial occasions. According to tradition, whenever a male child is born two rounds of ammunition are fired in the air. When a male member dies, two rounds are fired simultaneously and if it is a female, only one round. During the death ceremony, every time a group of mourners pay homage to their dear departed, a round is fired.

The above argument is further substantiated by the excerpts of Moegling, Richter and Connor’s observations gleaned from various old British Gazettes. Referring to the personal appearance of the Kodavas, they were represented as “at once striking on account of their peculiar costume and their frank and manly demeanor” (Richter). .. ...to the matchlock (an old muzzle loaded gun) is added a large knife or short sword, which as each individual must depend on his own personal exertions for security he is skillful in the use of. This weapon invariably forms a part of the dress of every Codagu, who may be said to plough his field with his sword by his side (Connor). The Kodavas in their traditional dress equipped with swords appeared to them like “a moving armory” (Connor; Richter).

They further observe that - The Kodavas appeared “a fierce, irascible and revengeful race, not easy to be managed” (Moegling). Kodavas were represented as the leaders in the social and military spheres. Focusing on the military acumen of the people in the context of the atrocities of Hyder Ali and Tippu Sultan, Connor depicted that, “These mountaineers have a considerable share of intrepidity and perseverance; strategem enters largely into their system of tactics; in war they are remarkable for their predatory habits and their neighbours accuse them on those occasions of adding cruelty to pillage. Like the modem guerilla, though they are unable to contend openly with regular troops, they intercept their supplies, cut off their communication, and harass them by surprises, a species of warfare admirably adopted to second the natural difficulties that a hilly country must present” (Connor). Hence, the Kodavas are treated as the “warrior caste” and “were dreaded for their fierce intrepidity” (Richter). Taking into account the fighting acumen of the Kodavas even from the days of battles with the Nairs of Kerala or the later Muslim invaders, the colonial texts represented the Kodavas as the potential soldiers of the British regime (Richter, Gazetteer 118-20).

The need for the use the Odikathi (a small broad bladed sword), the Peechekathi (a type of dagger) and later on the match lock and rifle by the Kodava basically emanates from the circumstances and environmental considerations of life of the inhabitants. The Kodavas of yore used to live in constant turmoil and as such their house resembled minor fortifications. Representing the Ainmanes or the Kodava ancestral houses; the colonial texts remarked that they “strongly remind one of small fortifications” as “the domicile of all the male relatives, with their wives and children”. Taking into account the existence of “the deep trenches” or the Kadangas Moegling reasoned that “the people are said to have lived in a state of general warfare: chief fought against chief, Nadu against Nadu’’ (Moegling 31). The following observations were made by Rice, Richter and others. “Speaking about the trenches or Kadangas, which were dug, to ward off enemies and to earmark boundaries of provinces” received the attention of the colonial texts. “... Coorg breast- works called Kadangas, which are seen in almost every part of their country and which testify to the indefatigable perseverance with which these highlanders toiled to secure the possession of their hills” (Richter, Gazetteer 191). In the absence of a separate military establishment “the Jamma ryots are liable to be called out in case of emergency... under the conditions of the feudal tenure on which they hold their lands” (Rice). These observations by the erstwhile colonial members proves that the Kodavas were a natural Martial Race even prior to the official anointment of the Kodava race as martial by the British. Depicting them as “the landlord or the warrior-caste”, the colonialists saw the Kodavas as the people who “stand up on their own merit as the remarkable mountain clan of Coorg” (Richter, Gazetteer 117). Further, Richter observed that the Kodava festivals are characterized by “athletic activities, hunting and such other activities” (Richter, Gazetteer 161) He goes on to add that.... “At the hunt of the tiger, the bison, or the elephant no true Coorg shirks the dangerous sport; but with nerve and coolness, with a keen eye and steady hand fire at him at close quarters” (Richter, Gazetteer 124).

The famous jurist Austin says, “Custom” is a rule of conduct which the governed observed spontaneously and not in pursuance of law set by a political superior.” Sir C.K. Allen also defines custom “as legal and social phenomenon growing up by forces inherent in society — forces partly of reason and necessity, and partly of suggestion and imitation.” The prevalence of swords, knives and matchlock guns as the paraphernalia of the Kodava and their use in routine and ceremonial occasions, coupled with the fierce warrior attributes as observed by Moegling and others, made the British administration officially recognize the unique customs and traditions of the Kodava. To strike a cordial relationship with this brave and fierce warrior race and to buy the loyalty of the Kodava nation, they offered various privileges to the Kodavas, one of which was the exemption of the application of the Disarming Act on the Kodavas of the Kodagu nation. The then Chief Commissioner of Coorg, Mark Cubbon, while granting exemption to the Kodavas in February 1861,said in the notification, “In consideration of the exalted honour and loyalty characteristic of this little nation of warriors and in recollection of its conspicuous services in aid of the British government, it is my pleasing duty to notify hereby for general information, in virtue of the power vested in me by the government of India that provisions of the Arms Act, commonly called Disarming Act, are not applicable to the gallant people of Coorg.

After having gone through the various recordings and observations of the Kodavas by the erstwhile colonizers as well as the empirical practices of the modern Kodava, it may be cogently argued that the Kodavas existed as a martial race long before the Kodava nation was annexed by the British. It was customary for a Kodava to carry on his person the odi katti, the peeche katti and a gun/rifle while he went about carrying out his day to day affairs. The very ecosystem in which the Kodava existed in, required that he bear arms to defend his ‘home and hearth’. The privilege of bearing arms is an essential part of the custom and tradition of the Kodava. Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim to the right of a Kodava in Kodagu to bear arms without a license can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law. Most customary laws deal with standards of community that have been long-established in a given locale. In many, instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by relevant courts.

Ancient custom is generally regarded as providing a foundation for many laws in most systems of jurisprudence and for reasons grounded in principle and justice. In Indian jurisprudence, immemorial custom is not merely an adjunct of ordinary law but a constituent part of it. In Hindu law, immemorial custom has proprio vigore, the efficiency of law. Custom has its origin in usage. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons in the same locality.

Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in nature and continuous in use. The court of law recognizes only those customs that are prevalent from ancient times. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law. Accordingly, the need to defend the Kodava way of life and the right to bear arms without a license in Kodagu, needs to be argued on these lines, by referring to the Kodava culture, custom and traditions that was practiced in the past and the way it is being practiced by the modern Kodava. All that is necessary to prove is that the usage has been in practice for a long period and with such invariability that it has by common consent been submitted to as the established governing rule of a particular locality. The right must be proved by clear evidence showing a continuous user as of right, nec ni nec clam nec procario.

Thus, records of rights or customs prepared by public officers (settlement officers) are important pieces of evidence. Custom can be proved by entries in any public document made:-

· By a public servant in the discharge of his official duty, or

· By any other person in the performance of a duty especially enjoined on him by the law of the country in which the public document is kept

Section 35 of the Indian Evidence Act, 1872 speaks of relevancy of entries in public or official book made by a public servant. An entry to be admissible under this section:-

· must be contained in any public or official book

· must be made by a public servant

· in the discharge of his official duty or by a person in performance of duty specially

· enjoined by the law of the country

· must be stating relevant factor in issue

The general opinion seems to be in favour of the view that, a decision on custom only becomes relevant instances under section 13 of the Indian Evidence Act, 1872, that such a right has been asserted and recognized. It is therefore necessary to assert and prove that the Kodava way of life and the right to bear arms is the Kodava custom.

India is a land comprised of people of different race and creed, each with their unique customs and traditions. The constitution of India recognizes the same and has made suitable provisions so as to ensure that such customs and traditions are not trampled upon in the garb of ‘Generalization’. The law of the land when codified, recognizes the importance of customs and traditions. The Hindu Code defines custom and usage as “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family.” The case for the Kodava’s right to bear arms in Kodagu is the Kodava CUSTOM. The case needs be defended accordingly.

[goodboy_mentor]

What you have written is fine. But if you want to defend your position, based merely on "custom" or "privilege", it may not take you very far. Best defense is attack, attack and attack. Attack what? Attack the very edifice of licensing, the opposite party is trying to base it's position on. You may click here to read on.