While I am convinced that my thesis is sound, it would be over confident to think that there will not be found persons who will not raise objections to it. I anticipate the following :
(1) Is absence of Upanayana the test of Shudradom;
(2)Did the Shudra ever have the right to Upanayana?
(3) How can the loss of Upanayana result in the general degradation of Shudras?
(4) What power did the Brahmins have to deny Upanayana to the Shadras?
Having stated the possible objections to my thesis, I like to give my reply to them.
To begin with the first. The best way to deal with this objection is to refer to the judicial decisions in order to find out what the Courts in India have regarded as the surest criterion for determining who is a Shudra.
The first case to which reference may be made is to be found in 7, M.I.A.18.[f9] It was decided by the Privy Council in 1837. The question at issue was whether at the relevant time there were in India any Kshatriyas. The contention of one side was that there were. The contention on the other side was that there were none. The latter contention was based upon the theory propagated by the Brahmins that the Brahmin Parashurama had killed all the Kshatriyas and that if any were left they were all exterminated by the Shudra king Mahapadma Nanda, so that thereafter there were no Kshatriyas left and that there were ony Brahmins and Shudras. The Privy Council did not accept this theory which they regarded as false and concocted by the Brahmins and held that the Kshatriyas still existed in India. The Privy Council did not however lay down any test by which a Kshatriya could be distinguished from a Shudra. In their view, the question must be determined in each case on its own facts.
The second case on the subject is to be found in I.L.R.10 Cal. 688.[f10]The question raised in the case was whether the Kayasthas of Bihar were Kshatriyas or Shudras. The High Court decided that they were Shudras. The partisans of the Kayasthas took the position that the Kayasthas of Bihar were different from the Kayasthas of Bengal, the Upper Provinces and Benares and that while those in the Upper Provinces and Benares were Shudras, the Kayasthas of Bihar were Kshatriyas. The court refused to make this distinction and held that the Kayasthas of Bihar were also Shudras.
The validity of this judgement was not accepted by the Allahabad High Court. In I.L.R.12 All. 328.[f11] Justice Mahamood at page 334 observed as follows:
"I entertain considerable doubts as to the soundness of the view which seems to have been adopted by both the Courts below, that the literary caste of Kayasthas in this part of the country, to which the parties belong, falls under the category of Shudras, as under-stood in the division of mankind in (he Institute of Manu or elsewhere in authoritative texts of the Hindu Law. The question is one of considerable difficulty not only ethnologically, but also from a legal point of view, so far as the administration of the Hindu Law to this important section of the population is concerned. I do not take the question to be settled by any adjudication of the Lords of the Privy Council either in Sri Narayan Mitter vs. Sree Mutty Kishen Soondoory Dassee, [f12] or in Mahashova Shosinath Ghose vs. Srimati Krishna Soondari Dasi[f13] in both of which the cases referred to adoption by Kayasthas of Lower Bengal, who may be distinguishable from the twelve castes of Kayasthas in Upper India, such as the North-western Provinces and Oudh. Nor do I think that the unreported decision of the learned Chief Justice and my brother Tyrell in Chaudhari Hazari Lal versus Bishnu Dial (First Appeal No. 113 of 1886, decided on the 15th June 1887), which was also an adoption case, settles the question. But I need not pursue the subject any further...."
The third case is reported in (1916) 20 Cal. W.N.901.[f14]Here the question raised was whether Kayasthas of Bengal wereKshatriyas or Shudras. The High Court of Calcutta held that they were Shudras. The case was taken to the Privy Council by way of appeal against the decision of the Calcutta High Court. The decision of the Privy Council is reported in (1926) 47 I.A. 140. The question whether the Bengali Kayasthas are Shudras or Kshatriyas was not decided upon by the Privy Council but was left open. In between 1916 and 1926 the Calcutta High Court gave two decisions which held that intermarriages between Kayasthas of Bengal and Tantis[f15]and Domes[f16]two of the low castes, were legal on the ground that both of them were sub-castes of Shudras.
These decisions which caused further deterioration in the position of the Kayasthas were followed by another which is reported in I.L.R. 6 Patna 506.[f17]In a most elaborate judgement extending over 47 pages Mr. Justice Jwala Prasad went into every Purana and every Smriti in which there was a reference to the Kayasthas. He differed from the Calcutta High Court and held that the Kayasthas of Bihar were Kshatriyas.
Next come cases in which the question at issue was whether the Maharattas are Kshatriyas or Shudras. The first case in which this issue was raised is reported in 48 Mad. 1.[f18] This was an interpleader suit filed by the Receiver of the estate of Raja of Tanjore in which all the descendants as well as the distant agnates and cognates of the Raja were made defendants in the suit. The kingdom of Tanjore was founded by Venkoji, otherwise called Ekoji, who was a Mahratta and the brother of Shivaji the founder of the Mahratta Empire. The judgement in the case covers 229 pages and the question whether the Mahrattas were Kshatriyas was dealt with in a most exhausitve manner. The decision of the Madras High Court was that the Mahrattas were Shudras and not Kshatriyas as was contended by the defendants.
The next case which also relates to the Mahrattas is reported in I.L.R. (1928) 52 Bom.497.[f19] The Court decided that :
"There are three classes among the Mahratthas in the Bombay Presidency: (1) the five families; (2) the ninety-six families; (3) the rest. Of these, the first two classes are legally Kshatriyas."
The last case to which reference may be made is reported in I.L.R. (1927) 52 Mad. 1.[f20]The issue was whether the Yadavas of Madura were Kshatriyas. The Yadavas claimed themselves to be Kshatriyas. But the Madras High Court negatived the claim and held that they were Shudras.
Such is the course of judicial pronouncements on the issue as to how to determine who is a Kshatriya and who is a Shudra. It is a most confusing medley of opinion which settles little and unsettles much. The Kayasthas of Bihar, of the Upper Provinces (now U.P) and Benares are Kshatriyas, while the Kayasthas of Bengal are Shudras!! According to the Madras High Court all Mahrattas are Shudras. But according to the Bombay High Court, Mahrattas belonging to five families and 96 families are Kshatriyas and the rest are Shudras!! The Yadava community to which Krishna belonged is popularly belived to be Kshatriyas. But according to the Madras High Court, the Yadavas are Shudras!!
More important for our purpose are the criteria which the courts have adopted in coming to their decisions than the particular decisions in the cases referred to. Among the criteria which the courts have laid down, the following may be noted:
(1) In I.L.R. 10 Cal. 688, the criteria adopted were (i) use of Das as surname, (ii) wearing the sacred thread, (iii) ability to perform the homa, (iv)the period of impurity, (v) competence or incompetence of illegitimate sons to succeed.
(2) In I.L.R. 6 Patna 606, the criterion seems to be general repute. If a community is Kshatriya by general repute it is to be treated as a Kshatriya community.
(3) In 48 Madras I, a variety of criteria were adopted. One was the consciousness of the community. The second was undergoing the ceremony of Upanayana as distingished from wearing the sacred thread. The third criterion was that all non-Brahmins are Shudras unless they prove that they are Kshatriyas or Vaishyas.
(4) In I.L.R. Bom. 497, the tests adopted were (i) the consciousness of the caste (ii) its custom, and (iii) the acceptance of that consciousness by other castes.
No one who knows anything about the subject can say that the criteria adopted by the various courts are the right ones. A criterion such as the period of impurity is irrelevant and of no value for determining the question. A criterion such as the capacity for performing homa is relevant but not valid. It mistakes effect for a cause. The criterion of consciousness is hardly a fair criterion. A community may have lost its consciousness by long disuse of necessary religious observances due to causes over which it has no control. The criterion of Upanayana stands on a different footing. The courts have not put it properly. But there is no doubt that rightly understood and properly put the criterion of Upanayana is sound. The Courts have not made any distinction between the de facto position of the community and its position de jure in regard to Upanayana, and have proceeded on the assumption that what is true de facto must also be true de jure. It is this fault in the application of the criterion of Upanayana which has produced anomalies and absurdities, such as one community having one status in one area and quite a different status in a different area— or allowing any pretender community to wear the thread .and by continuing its pretence for a period to acquire a vested right or contrariwise punishing a community by declaring that it had no de jure right to wear the thread merely because it has not been wearing it defacto. The real criterion is not the wearing of the sacred thread but the right to wear the sacred thread. Understood in its proper sense, it may be said without fear of contradition that the right to Upanayana is the real and the only test of judging the status of a person whether he is a Shudra or a Kshatriya.