1. One Rattigadu, a Mala or Hindu Pariah by birth, but now a convert to Christianity and a weaver by profession according to the District Magistrate, but who in fact earns his living by cooly work according to the Village Magistrate, was convicted by the latter of having used abusive language and was sentenced to two hours confinement in the stocks under Section 10 of Regulation XI of 1816 of the Madras Code.
2. The District Magistrate relying on the case of Nabbi Sahib I.L.R. 6 M. 247 refers the sentence as illegal on the ground that a native Christian is not a person belonging to one 'of the lower castes of the people' so as to be within the purview of the Regulation. In the case of Nabbi Sahib the High Court held 'a Mahomedan cannot be said to belong to the lower castes of the people,' and the District Magistrate points out that conversions to Islam from the low caste Cherumars of Malabar are of daily occurrence and that if by reason of their creed they are exempt from confinement in the stocks, so ought converts to Christianity to be exempt even though born in one of the lower castes of the people.
3. To render a person liable to confinement in the stocks, there must be a concurrence of two circumstances, viz., f(1) he must be a person belonging to one of the lower castes of the people, and (2) he must be a person on whom from his social standing or otherwise it may not be improper to inflict so degrading a punishment. As pointed out by this court in the case of Nabbi Sahib, the framers of the Regulation probably had in view those castes who, prior to the introduction of the British Rule, were regarded as servile, and it was apparently from this point of view that the court held that a Mahomedan could not be said to belong to the lower castes of the people. Save in the Moplah district of the West Coast, where conversions from the low Hinducastes are common the name Mahomedan impliesarace, as well as a creed, distinction. Broadly speaking, Mahomedans are foreigners by race who have no connection with any of the castes of the people. There is nothing in the Nabbi Sahib's case to show or to suggest that he was a convert to Islam from any of the lower castes of the people, and it may be doubted whether the case can be regarded as an authority for holding that every professor of the creed of Islam, whatever caste he may have belonged to before conversion or after it, is outside the purview of the Regulation. The framers of the Regulation probably had not in mind the question which has now arisen, and so made no special provision for it. But the Regulation is a penal one and must be construed strictly and in case of doubt, in favour of the liberty of the subject. The test seems to be not, what is the offender's creed, whether Mahomedan, Christian or Hindu, but what is his caste. If he belongs to one of the lower castes, a change of creed would not of itself in my judgment make any difference provided he continues to belong to the caste. Ordinarily, as I understand, a convert to Christianity abandons his caste whether high or low but I do not know that this is always or necessarily so. It will be a question of fact in each case. If he continues to accept the rules of the caste in social or moral matters acknowledges the authority of the headman, takes part in caste meetings and ceremonies, and in fact generally belongs to the caste, then in my judgment he would be within the purview of the Regulation.
4. If, on the other hand, he adopts the moral standards of Christianity instead of those of his Caste, if he assimilates his ideals to those of the Christian community which he joins, if he accepts the authority of his pastors and teachers in place of that of the headman of the caste, if he no longer takes part in the distinctive meetings and ceremonies of the caste, and if, in a word, he abandons his caste, then he can no longer be said to belong to one of the lower castes of the people and his punishment by confinement in the stocks is no longer legal.
5. The District Magistrate says that 'native Christians do regard themselves as of a higher status than Hindus of the Mala caste and look upon the confinement in the stocks as very degrading. Malas do not.' This is a consideration which concerns the second condition required by the Regulation to render an offender liable to confinement in the stocks. The question is not whether native Christians as a class regard the punishment as degrading, but whether the offender is from his social standing or otherwise (e.g. from his education) a person on whom it may not be improper to inflict so degrading a punishment.
6. As pointed out in the proceedings of this Court No. 1732, dated 9th October 1870 (Weir's Law of Offences, 3rd edn., p. 685,) the word 'whom' in Section 10 of the Regulation refers back to the words 'the offending parties' not to the words 'the lower castes of the people.'
7. In the present case there appears to be no reason to think that Rattigadu was exempt under the second condition, and the District Magistrate's letter does not show that he was exempt under the first, though it is not improbable that he was. If the District Magistrate having regard to the remarks made above should find that Rattigadu was exempt under the first condition, it will be open to him to make a further representation with a view to a formal declaration that the punishment inflicted was illegal.
8. I concur.