2. DESCRIPTION

A most general picture of dispute institutions in rural areas may still not vary from the outlines provided by Srinivas. Writing in 1962, and reflecting upon field researches dating back to the early fifties, Srinivas in a brief analysis recalled anecdotally and rather at a general level his own impressions of dispute settlement procedures studied over a period of two years (1962: 118–119; see also Srinivas, 1952; 1976).

His findings were: (i) “something like case law exists, though it is not systematized” (Srinivas, 1962: 112), (ii) some disputes (e.g. partition of family properties) tend to “drag on” for weeks (id.: 113), (hi) the intimate knowledge of the dispute and the disputants by parties and village elders provided a “pre-existing image” so that “even the ’same’ facts are fitted into different configurations”, although the pre-existing image is seldom unchangeable, (iv) rudimentary indices of probative value of witnesses through reputation and unwritten rules analogous to the hearsay rule enable a narrowing of competing versions or “true facts”, (v) ulterior influences and factors such as favouritism or nepotism occasionally influence the outcome (id.: 115), and finally (vi) the village tribunals are orientated to the ideal of justice (nyaya, dharma), moralistic and religious considerations, and influenced by “public opinion” to a degree. A more detailed conspectus would, however, have to acknowledge a wide variety of dispute institutions and processes in India.

At least three main types of NSLS exist in rural India. Very generally, these are caste-based NSLS, community-based NSLS, and innovative/reformist NSLS. The distinction between caste and community NSLS is (as we will shortly see) relative. It is based on the view that “most individuals in rural India have two sets of predominate social relations, one that ties them to a village community which may be viewed as a vertical set of ties and one that connects them horizontally to their biradari (community) and jati (sub-caste)”.

In addition, there is in some parts of India, an interesting nexus between caste panchayats and religious institutions. The various Hindu matas (religious organizations) especially in the South, seem to have an overarching jurisdiction over some aspect of caste panchayats. But their role is largely advisory and in discharging it the matas generally respect the authority of caste panchayats. The patterns of interaction between caste panchayats and various religious institutions have recently been studied by K. Ganambal (1973); but on the whole this area has been neglected by sociologists and anthropologists. It is therefore difficult to assess the spread of the interaction of religious institutions in their adjudicative role with other types of NSLS.

The dominant form of the organization in each case is a set of dispute institutions (cf. Abel, 1973: 217) called panchayats. Panchayats normally are a group of five people who hear and decide disputes mostly when they are summoned to do so but frequently on their own. However, in each type of NSLS, the subject matter varies. Very generally, caste (jati) panchayats deal with conflicts of interests and values within jati-groups, including factional alliances within those groups.

Jati panchayats vary enormously in structure and scope. Bernard Cohn has, with insight, grouped the structures and scope of jati panchayats in terms of territorial units as well as patterns of caste dispersal and domination. This classification yields three types of jati NSLS:

(a) Villages with a small population of a single caste;

(b) multicaste villages with single head (authority figure);

(c) multicaste villages with a dominant caste (Cohn, 1965: 83–98; see also Srinivas, 1962: 118–119: Ganambal, 1973: 106–204).

It is clear that jati NSLS may have a wide territorial reach in terms of aggregation of jati circles, so that it is not unusual to find as many as fifty villages falling within the scope of jati NSLS. The limits of the territorial reach are conditioned only by “the means and the speed of transportation” and “by the kinship radius of the convenors” (Mandelbaum, 1966: 271). There is equally clearly a federal component in jati NSLS and different levels of hierarchy (e.g. Cohn, 1959). The nature of the conflict or its importance to jati solidarity patterns may, however, involve the use of the highest collectivity of jati NSLS (panchayats comprising as many as 20–25 villages).

Jati panchayats also show interesting variations in the organization of power and authority. While these remain to be systematically studied, a mix of any of the following variables offers some clue to authority and sources of legitimation. The close correlation between age and wisdom provides one mix; the panchayats are often led by, or even composed of, such men. Esteem, reputation, integrity, and charisma provide another mix. Economic base, as related to social status, also invests power and authority in certain men. So does the status of being a faction leader (cf.

Jati NSLS primarily involve disputes and conflicts which are related to the maintenance of jati ranking (in terms of ritual axis of pollution and purity) and solidarity. Ritual lapses, marital relations, commission of pollution acts, sexual deviance, inter se land disputes, credit transactions, patron-client (Jajman’) relations – all these fall typically within the range of jati NSLS. As in SLS, the jati NSLS involve application of pre-existing norms (see Srinivas, 1962: 118–119; contrast: Cohn (1965:91) who says “there is, apparently, little question of what �the law’ is in panchayat proceedings.” Italics mine) as well as instant norm creation and norm innovation. The distinction between norm-creation and norm-interpretation is, in most decisional processes, never so sharp as some wish it to be. The breach of pre-existing “customary” law is always a major ingredient in the convening of jati panchayats. Indeed, jati NSLS sometimes make law prior to occasions of adjudication. For example, it has been frequently noted that untouchable jati groups, in their desperate bid for social uplift, have adopted regulations “for whole sections of a caste forbidding practices believed to be responsible for their low status... Chamars are prohibited from removing dead cattle” (Cohn, 1965: 108; and the literature there cited).

There is general agreement that the processes of dispute handling, however complex, in jati and village panchayats, share common features of informality, flexibility, democraticity, and decision-making (at least always in style if not in substance by consensus). The state law strives to attain justice inter partes through “impartial” judges and elaborate procedures for ascertaining “truth.” Indigenous dispute institutions promote justice with notorious informality through village notables who know disputants personally.

“The egalitarian aspect of the traditional panchayat seems to pose a paradox. The need for unanimous consent and the right of every man to be heard appear dissonant to the leitmotif of hierarchy.... The answer seems to be that most define a jati council as a council of peers... even a poor man will speak if he feels moved to do so.” (1966: 291)

While the substance of this account is correct, it remains ideal-typical, too. The theoretical right of every caste-man to invoke jati panchayat and speak freely at its sessions is often nullified in practice by the high costs involved in convening a panchayat meeting (see e.g., Sharma, 1979). And the prevalence of the so-called tradition of consensus in India needs very critical examination. On most vital issues, the appearance of consensus may well be a mask for domination. The consensual style of decision often serves effectively the dominant interest. One may assume that in most situations consensus would be “pre-fabricated”, “contrived” or “manipulated” (Baxi, 1976a). Yet, all in all, indigenous justice, its structure and process are thus at fundamental variance with those of professionalized justice.

The jati and village panchayats have a repertoire of sanctions which include fine, public censure, civil boycott, ostracism, and varied public-opinion pressures by village notables and sometimes by predominant groups in the area. The jati panchayats additionally, have the very potent sanction of “outcasting” and “excommunication.”

“Fines are levied for a wide variety of offences. For petty thefts, cash fines of small amounts are levied. Higher fines are levied for adultery and other sexual offences. Rape is regarded as a very serious offence and a special punishment is imposed in addition to fines. The culprit has his face smeared with soot, a bucket containing mud is placed on his head, and he is made to walk around the cheri (area) in this guise, while a drum is beaten along the route. This is considered the most degrading form of punishment.” (Beteille, 1965: 63–64)

One striking example of a new kind of sanction is provided by the Lok Adalat (People's Court) at Rangpur. When disputants are sent an “invitation” to join the meeting of the Adalat, the last paragraph of the notice reads: “You surely know (appreciate) that expensive and frequent visits to law courts are not in the interests of us poor farmers”. One may conceptualize this kind of admonition as a sanctioning device itself. Indeed, in the inter-subjectivities of the villagers, such a statement might imply that if a party does not even appear before the Lok Adalat the Adalat itself may encourage court action or, at any rate, it may not discourage such action. Conceptually, then, the threat of recourse to the instrumentality of the state legal system is itself stressed and apperceived as a sanction, whose very probability generates compliance. This is a rather unique phenomenon wherein the NSLS appropriates the intimidating paraphernalia of the SLS to sustain and enhance its continual efficacy, viability, legitimacy and even hegemony. Of course, parallel processes may be perceived in conflict resolution through out-of-court settlement, private arbitration and other forms of mediation. But the striking peculiarity of the Lok Adalat is invocation of formal litigation as a self-conscious sanctioning process to an extent that the range of choices for alternate means of resolution is endeavoured to be effectively eliminated or at least minimized. This indeed is the very definition of “force.” To the extent that the threat of recourse to litigation actually operates to reduce parties’ choice of action, we have surely an operation of sanction (Baxi, 1976b: 83–86).

The effectivity of sanctions is an empirical question which has not been closely examined in relation to NSLS. Recalcitrance is both conceivable and likely; its incidence is however unknown. Isolated examples also suggest that the dominant group members or resourceful persons can by acts of defiance occasion changes, bypassing, or even momentary collapse of sanctioning processes. But overall, the strength of collective conscience or sentiment in the village (and caste) contexts cannot be gainsaid.