State Law, Dispute Processing And Legal Pluralism

Unspoken Dialogues From Rural India

Kalindi Kokal

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429862618
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book presents an ethnography of dispute processing by non-state forums and actors in rural India. As such it sheds light on a much neglected and contested topic. Arising in the context of recent legal and political debates that question the legitimacy of non-state actors engaged in dispute processing, the book explores the nature, form, and functioning of such forums and actors in two locations in rural India. Focusing on a fishermen's community belonging to the caste of Hindu Machim?r Ko??s in coastal Maharashtra and an agrarian community in Uttarakhand with members from the Pandit, Thakur, Bhoti?, and Harijan caste groups, this study shows the manner in which non-state forums and actors engage with state law and its regulatory systems.

1 Setting the context

Miradevi is a mother of four children. Her husband is extremely violent and besides physical aggression, he also subjects her to a great amount of mental stress and torture. “He undresses publicly and speaks openly about our conjugal relations at his workplace and even in the market. There are no traces of shame left in him and he has also caused me a lot of beizzati (disrepute or dishonour),” narrated Miradevi. She approached a state forum – the police station – for the first time after ten years of her marriage. It was at the insistence of her neighbours, who saw that she had been beaten violently by her husband. When several police complaints did not improve her husband’s ways, Miradevi heeded the advice of the police and filed a suit in the local tehsil court under Section 125 of the Criminal Procedure Code of 1973. ¹ She received an order directing her husband to pay a monthly maintenance of Rs. 4,000 (approx. $58) to her and the children. Since this amount was not enough to cover the expenses for food, clothing, and schooling, Miradevi and her children continue to live with her husband. However, confronting the situation through police action and court processes has made Miradevi stronger. She knows now that she has the support of the state authorities. Her act of seeking help with the state machinery also caught the attention of her husband’s employer, who now informs Miradevi about the transfer of her husband’s monthly salary to his account. Today, Miradevi boldly keeps a close watch on how her husband spends his salary. She even accompanies him to the bank when he goes to encash it. She takes a share of his salary to pay the bills and the children’s school fees. “Otherwise, he would just spend all the money on alcohol, like he did earlier,” she says. A certified copy of the court order is kept safe by Miradevi at her parents’ home. She knows she will enforce it if the situation gets out of hand. At the time of the interview, it had been three years since the court case. By invoking the support of state authorities in a domestic dispute, Miradevi has defied social norms of privacy that often tend to reinforce patriarchal notions of power. But she did so in a situation of distress and believes that she has grown stronger as a result. ²

1 A tehsil is an administrative division within a district in a state. Tehsils are also known as tālukā and tāluk in different parts of India.

2 This case study is followed up in Chapter 5.

Govindi Devi’s son, Lalit, is mentally ill. Sometimes he becomes violent in a fit of madness. Lalit’s wife, Suman, left her marital home a year after their marriage. Govindi Devi is concerned about her son who cannot manage on his own. “He needs someone to take care of him,” she said. Govindi Devi feels that the most practical solution would be for Suman to inform Lalit in writing that she does not wish to live with him and that she has decided to leave him. “She keeps asking us to give her in writing that Lalit does not want to reside any more with her. But we will do nothing like this. She is welcome here. She should look after her husband and she has a right over all the property here. But if she does not want to look after my son, she should just say so and give it to us in writing so that all of us can move ahead,” said Govindi Devi. Govindi Devi has been cautioned by the wise men in her village to ensure that Lalit does not give Suman any written document that reveals “an intention to separate.” Govindi Devi has said that since the “(state) law is for women” (aurat ka kanoon hai), any such piece of writing by Lalit to Suman could lead him into a tricky situation involving courts and police stations. ³

3 This case study is followed up in Chapter 4.

That relationships with and between corporate entities, be it in the public or private sector, are influenced by state law by the mere fact of their existence does not come as a surprise. The above two snippets of fieldwork, however, are meant to reveal the various forms dispute processing assumes as a result of the engagement of non-state forums and actors with state law and its systems.

The above two experiences are within the sphere of the family, which, as a social unit has, for a long time, been fairly independent of the state law and its systems in India (Derrett 1968, 1978b). First, the personal law system (Subramanian 2014) in India causes a majority of family matters to be governed by religious law and customary practices.⁴ And second, an intricate web of caste, birāderi (see Chapter 2, page 52) and community reciprocities keep the regulation of family affairs limited largely to kinship circles, extending at the most to the village. The latter remains true in many parts of rural India, including in the two locations of fieldwork on which the evidence presented in this book is based, where caste and birāderi networks still play an important role within the general social structure. However, as the two vignettes at the beginning (and other case studies that follow in the next chapters) reveal, even the processing of family disputes witnesses an intensive engagement with state law and its systems, the presence and penetration of which is today undisputable.⁵ As, the title suggests, this book explores the unspoken dialogues between non-state actors, state laws, and the regulatory systems that reveal the nature and form of this engagement. By focusing on the blurred boundaries between state and non-state law, this book establishes that no aspect of Indian society, irrespective of its nature, location, or size, remains entirely autonomous at any point of the state law and its systems. The family, popularly referred to as the basic unit of this society, is only one example.

4 Every individual in India has a right to be governed by his/her personal law in matters of marriage and divorce, infants and minors, adoptions, wills, intestacy, and succession. Personal laws reflect a multicultural rule of law giving religious/cultural minorities an opportunity to be governed by their own customs, norms, and religious laws (Solanki 2011; Sezgin 2013).

5 I use the concept of dispute processing over dispute resolution or dispute settlement because disputes in my observation did not really ever get “settled” entirely. This book adopts the term “dispute processing” in line with Felstiner’s (1974, 63) argument that “a significant amount of dispute processing is not intended to settle disputes, that a greater amount does not do so and that it is often difficult to know whether a dispute which has been processed has been settled” and Sen’s (2009, 392) comment that “Complete resolution is neither a requirement of a person’s own rationality, nor is it a condition of reasonable social choice, including a reason-based theory of justice.”

Experiences like those above indicate the nature of the impact that state law and its systems may have, even on dispute processing that occurs outside state institutions, such as state courts and police stations in India today. Whether in terms of counter-balancing the power disparity with her husband by improving her bargaining power with a court decree, as in the case of Miradevi, or in the form of a transformation in customary practices that occurs in response to legislative interventions regulating social relationships, as highlighted in Govindi Devi’s response, the impact of state law and its processes becomes evident in the diverse forms of adoption and resistance through which state law gets translated. The experiences of individuals and communities steering across different “layers of legality” (see page 65 below), characterised by a dynamic of competing values within such layers, establish that the non-state and state spheres of dispute processing are “mutually constitutive” (Merry 1992, 358). This challenges the popular rhetoric of campaigns seeking the elimination of non-state forums of dispute processing on the grounds that such forums work in “parallel” to their state-based counterparts.

Fitzpatrick (2001, 212–215) argues that the fundamental political principles, in this era of neoliberalism where the market is supreme, are democracy, human rights, and the rule of law. The creation of such a state is replete with efforts to capture and control dispute processing, to extinguish local forms, and to develop uniformity. As India is experiencing this phenomenon too, an evident consequence, therefore, is the ongoing debate in India about whether the task of processing disputes and grievances that involve questions of individual freedoms and rights should be left entirely to the devices of the state. This study finds its conceptual roots in this very debate. Drawing on the framework of legal pluralism,⁶ a still contested heuristic tool, and proceeding with the methods of participant observation and semi-structured interviews, I present an ethnography of how disputes are handled in rural Indian societies and the nature of engagement with state law that such processing involves. Legal pluralism is “that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs” (Griffiths 1986, 2). The present study develops the research question through exploring the agency of various actors embedded within a complex interplay of power, information, networks, and values involved in such processing. Two sections of lower-caste communities located in the rural areas of Maharashtra and Uttarakhand respectively,⁷ aid the understanding of the research question, enhancing the contribution of this study with specific reference to the communities perceived to be on the margins of development and social justice.

6 For a detailed understanding and discussion about “legal pluralism,” see Sally Falk Moore (1973), John Griffiths (1986), Sally Engle Merry (1988), Masaji Chiba (1989), Werner Menski (2006b), and Brian Tamanaha (2008).

7 Maharashtra and Uttarakhand are states in India. Maharashtra is located on the western part of the Indian peninsula, whereas Uttarakhand is located in the northern part of India that borders with Nepal and Tibet. The first site involved research with a fishing community; and in the second location the research focused on a rural agrarian community.

The book emphasises that, in the sphere of dispute processing, the nature of engagement of non-state forums and actors with state law and its systems can be understood only through examining the extent to which, and the manner in which, the values underlying a community’s sense of order and the values of state law compete or coincide with one another during the processing of disputes. How communities generally and individuals within these communities specifically balance these dynamics is equally crucial to such an understanding.⁸ Through an ethnographic study of dispute processing in the village communities of Gonjhé and the Dharamgarh valley the present study builds on Masaji Chiba’s (1986, 378–391) theory of “identity postulates of indigenous law” (see page 72 for further details), to show how the nature of the engagement between the values of dharma and izzat underscoring community laws (in both the communities) and the values of state law determined the extent to which state law influenced dispute processing within these village communities and the manner in which it came to be “translated” (Merry 2009).⁹

This chapter first contextualises the research study and its focus. It then introduces the methodology used, followed by a description of the frameworks of thought and terminology that guided the present study. In the next sections, I provide an overview and analysis of the debates surrounding the relationship of state law and non-state actors as perceived by the Indian judiciary and socio-legal activists. These sections also present an outline of the current literature on non-state dispute processing in India generally. Towards the conclusion of this chapter is a brief description of the chapters that follow.

1.1 Law in action: Using ethnography to understand state law

In order to tackle the question of whether, to what extent and in which manner non-state forums and actors in dispute processing engaged with state law and its systems, it did not take me very long to realise that merely having a knowledge of state law, its objectives, and how it works to implement these was insufficient. State law certainly does not exist in a vacuum, but rather in a society in order to be meaningful. However, societies – and in the context of this study, non-state forums and actors – are not just passive recipients of state law, but are constantly modifying the impact and influence of state law by engaging with it (Sally Falk Moore 1973).

8 A fair share of literature in anthropology (Ramsbotham, Woodhouse, and Miall 2011) discusses the usage of terminology pertaining to “dispute” and “conflict.” This book understands “disputes” as a type of conflict (see Nader 1978, 15, for disputes as a stage of conflict); conflict being the “widest set of circumstances in which parties perceive that they have mutually incompatible goals” (Ramsbotham, Woodhouse, and Miall 2011, 9). See also Epstein (1974, ch. 1) and Koch (1974, 26) on similar descriptions of “disputes.”

9 For the concepts of dharma and izzat see Chapter 3, page 67.

The discipline of anthropology with its emphasis on ethnography “helps us overcome the resistance of law to more nuanced analysis on the ground, among real people. It allows us to begin to explore how law features in different ways for individuals from different ethnic and socioeconomic backgrounds” (Darian-Smith 2012, 555). I approached therefore the concept of “impact of state law” not from within the ambit of legal discourses, but rather as an empirical question. This enabled me to gain a broader, more holistic, contextualised, and realistic picture of the “impact of state law” in terms of how state law actually worked and was received within society.

Approaching the research question with a combination of understandings drawn from both law and anthropology was a fairly challenging task. The amalgam of disciplines necessitated twelve months of ethnographic fieldwork, which was carried out partly in a fishermen’s community in western Maharashtra and partly in an agrarian community in Uttarakhand.¹⁰ My own learning about law had to be partly unlearned to reduce the “sense of shock” provided by the “tension between the nature of reality as presented by the ideology of legal centralism and the actual state of the empirical world” (Griffiths 1986, 4). My experience of law school followed by legal practice in the state courts seemed to have provided an exaggerated picture of how frequently state courts are accessed by people. While indeed courtrooms in Indian courts are constantly overflowing with litigants and the sheaves of papers on a judge’s desk never seem to end (see Krishnan 2014, 275–279, for a more detailed insight on this point); from the other end of the telescope, this proportion of people seem to be a disparate minority in comparison to those numbers tha...