4. EVALUATION
The existence of multilegalism in dispute settlement is a problem calling for explanation only because of some underlying value premise, not very often made explicit. The relationship between the “local law-ways” and “lawyer's law” (Cohn, 1965) can be (i) marked by complementarity and reciprocal reinforcive coexistence and (ii) characterized by conflict and tension, resulting in a miscarriage of justice-values embodied in either or both.
One's unarticulated perception of this relationship (which inevitably must be a mixed rather than a pure type) and the bearing of it on the attainment of values of the constitutionally desired social order, is certain to influence the evaluation process.True, one can exalt or denigrate “local law-ways” in particular instances. The incident of a cowherd who committed the mortal “sin” of secretly cohabiting with the Brahmin's young third wife and who compounded it by leaving the landlord's house by the front door (instead of the usually permitted back door entry and exit), resulting in the youth's castration and murder, is a shocking instance of the lynch-justice of the local law-ways (Gough, 1955; Cohn, 1965: 90). Contrast this, however, with the almost idyllic manner of dispute settlement in a single-caste small village of Malana, involving a kind of participatory democracy in reaching substantive outcomes in dispute situations (Cohn, 1965: 83).
Contrast this, too, with the all-India legal system demanding almost heroic patience and fortitude for the just plaintiff who is rewarded with a judgement which he finds so difficult to enforce, as in the landlord's case described by Kidder.
But conflicts of value go even deeper than those contrasts between state and non-state law indicate. R. S. Freed (1972: 423–435) has presented one aspect of such conflicts in her study of village life in North India through the case of Maya.
Maya, a married but illicitly pregnant girl, was killed by her father because he believed that his dharma as father obligated him to do so for the spiritual well-being of her soul. The sooner her sinful phase in the cycle of births and deaths was terminated, the better would her prospects be in the endless cycle of birth and rebirth. He reasoned also that Maya, if allowed to live, would be excommunicated from the village society, and end up as a cheap urban prostitute, a life full of unmitigated misery. Everybody both in her in-laws’ village and his own agreed – so much so that two of the kinsmen of Maya's father who were police constables did not do anything to activate the legal process. The police visited the village twice but did nothing. Village law was here in sharp antithesis to state law, and the latter, more or less yielded to the former. Dharma thus conceived is the legitimating principle of this NSLS which diverges sharply from the democratic belief system sustaining the SLS.On the other hand, well-organized local legal systems may often almost altogether “oust” the state legal system and provide an almost idyllic alternative as is shown by Lok Adalat in Rangpur, North Gujarat – a tribal belt of about 100 villages mostly irradiated by the Sarvodaya (lit. uplift of all) ideology of bhoodan and gramdan (voluntary gifts of lands and villages for redistribution of common use).
Almost all disputes in the region are referred to the Lok Adalat. In the last 25 years, it has settled more than 25,000 disputes. The very fact that the case is brought before it is often enough a valid ground for adjourning proceedings in official courts. Adjudication is done with substantial public participation: each session is attended by 300–400 villagers. The Court's decisions are rarely disobeyed. This is because of their intrinsic fairness and community involvement. In some ways, this Court achieves a quality of justice still sought for by the state legal system; for example, it more effectively protects women's equal rights of inheritance, matrimonial property, etc.
The Open Court's criminal justice system already provides for effective compensation for the victims of crime which is still on the legislative anvil of the state legal system. Its rehabilitative techniques are much more advanced in some respects: a murderer is “punished” by having to look after the widow and minor children of the victim for a term of years under close supervision of the local community, whereas his imprisonment in the official legal system would have rendered both families destitute.The Lok Adalat experiment also illustrates other dimensions of relationship between the state and non-state legal systems. Often, dispute institutions generate and sustain broad-based leadership patterns which promote developmental activities both economic and social. It was through his role as a mediator in village disputes that the leader of the Lok Adalat, Shri H. Parikh (an eminent Sarvodaya worker), attained legitimacy and a degree of charisma. In turn, he used Lok Adalat to translate his vision of socio-economic reform by making it a vehicle of reform-oriented adult education. He made the adjudicatory occasions into educational ones, both through actual decisions and plain preaching on many themes – family planning, ill-effects of overconsumption of alcoholic drinks, honesty in credit transactions, civil liberties, irrationality of belief in witchcraft, equality of women, agricultural innovation, etc. Today, the area of about 1000 villages has witnessed remarkable socio-economic changes partly fostered and sustained by this kind of didactic adjudication. In this sense perhaps more has been achieved by mobilization of lay justice for development than by insistence on adoption of professional justice, as is illustrated by the state's abortive attempts at formalizing village justice through the statutory nyaya panchayats (Baxi & Galanter, 1979).
The Lok Adalat is not an isolated phenomenon, although it may be in several respects unique. On a lesser scale, quite a few such experiments exist.
Moreover, not too dissimilar functions (of promoting welfare, development, status mobility) have been and are being performed by jati panchayats, as noted by several sociologists and anthropologists. When they perform such functions, as they increasingly do, both in adjudicatory and other contexts, the jati panchayats supplement the role of state in bringing about social change, although they do so on the basis of caste loyalty and patronage.It would be misleading to assume that the conflicts between state and local legal orders are merely conflicts of values; there are also conflicts of interests. Adoption of constitutional values naturally calls for sacrifice of personal or group interests, which are clearly not acceptable to those in positions of higher class, status or power. Some would even say that what are spoken of as values are nothing more than rationalizations of interests of vested-interest groups.
Whatever be one's views on the latter aspect, one example of conflict of interests is manifested in the decisions of some panchayats of the so-called “denotified” tribes (which were designated by the British masters as “criminal tribes” as early as 1773, a labelling which persisted for whole groups and a stigma which was removed by the repeal, in independent India, of the Criminal Tribes Act 1933). A recent study of Simhadri (1979) indicates that the Yerukulas, a former criminal tribe in Andhra Pradesh, “commit crimes not only to earn their livelihood but also to pay fines and bribes to Panchayat and police and a good proportion of their booty in theft and burglary goes towards the maintenance of these agencies”. While tribal panchayats ordinarily discourage commission of crimes, Simhadri finds instances where the panchayat itself suggests that a criminal could engage in theft in the ensuing dark days (new moon days) in order to earn money “to pay fines” (1979: 124). We have in this kind of situation a clearly antagonistic relation between SLS and NSLS.
But the antagonism does not appear, as in the case of Maya, to be at the level of values; it exists at the level of interests. Ordinarily, theft is discouraged. But if theft is the only or the best way in which to pay fines to and through panchayats (and the executions in some situations by the police), the superior interests of the group prevail over the interests and values sought to be promoted by the SLS and even the NSLS. And the very agents of the SLS whose duty is to uphold its values and interests temporarily become co-opted in the NSLS, which obviously serves their material interests better.The limits of state power, authority and law are not set just by values and interests but also (and perhaps no less decisively) by the level or organization of efforts. Most “developing” countries are poor (appallingly so, as in the case of India, where a large number of people do not have means of bare subsistence). We immediately perceive that the level of poverty affects adversely the reach of state law and the quality of its justice. Investment in administration of law and justice is not (and probably cannot be) a high priority item in national budgets of poor societies at the very time when they have to resort to the machinery of law to foster social change in developing societies.
All this means, of course, that there are not enough courts, constables and lawyers – carriers of official law – in poor societies. Thus, for example, in India (according to one estimate) there are only 183 lawyers per one million of the population as against 507 lawyers in the United Kingdom, 1,595 in the U.S.A., 947 in New Zealand, 638 in Australia, and 769 in Canada. Indeed, some areas in India have no lawyers at all, and inter se distribution of lawyers within India reveals even more striking disparities (Galanter, 1968b: 201). As regards police in 1971; according to the official estimates there was one policeman for every 800 persons in India, but the distribution is uneven between the rural and urban centres.
The average jurisdiction of a police station is about 200 square miles covering 100 villages and a population of approximately 75,000 persons. It was estimated in the 1950s that police stations were, on the average, about 8 miles from any village (Bayley, 1969: 79).SLS, pervasive in urban areas, is only slenderly present in rural areas. The low visibility of SLS and its slender presence renders official law (its values and processes) inaccessible and even irrelevant for people. Other factors (such as the language of the law, which is alien to about 95% of the people) compound the distance between SLS and people.
All these variables make the relationship between SLS and NSLS a very complex affair. Failing in empirically informed evaluation, one can have hazardous recourse to aprioristic or ideological bases (e.g. in terms of Gandhi's ideal of Ram-Rajya) or elaborate evaluative framework from comparable experiments (e.g. Henderson's analysis of traditional conciliation and the growth of democratic legality).
Henderson's critique of the Japanese statutory conciliation system (Chotei) may well be extended mutatis mutandis to the indigenous dispute-settlement processes in India:
“... the excessive use of conciliation stunts the growth and refinement of the body of rules necessary to sustain complex community life; it dulls the citizens’ sense of right, essential to the vindication of law. It may also allow old rules and social prejudices, which new legislation has sought to abolish, to influence the outcome of disputes; or it may allow a new regime to ignore the law in favour of its policy.... In other words, conciliation is neither conservative nor progressive in principle; it is simply unprincipled. It may tavour the powerful over the weak, in the name of bargaining; it ordinarily forces plaintiffs to discount their claims; it may operate to compromise large scale group interests which might be better handled by forthright reform legislation. In short, conciliation is only on adjunct to, not a substitute for, a legal order; and if relied upon excessively, it is not merely non-legal – it has antilegal results.... It takes a legal framework to protect the voluntary character of conciliation; and if it is not voluntary, conciliation will likely become in practice simply a standardless use of forces.” (1965: 241)
The basic ideal-typical contrasts thus emerging are clear and common enough: namely, that indigenous dispute-settlement processes may allow room for “prejudiced” rather than “principled” determination; that it may be swayed by power differentials between parties; that in some ways it is “antilegal.” And at an ideal-typical level, the case for structuring and confining local law-ways through the national legal order is clearly a compelling one.
But such a conclusion needs to be checked against a model of SLS, accentuating different aspects (behaviour rather than value, reality rather than myth). Are judicial and legislative decisions pre-eminently grounded in “principle” rather than in “prejudice"? Are the national law-ways substantially free from “old prejudices” cancelling the objectives of social change through law? Do no power differentials between adversaries affect legal initiations and outcomes? Does not the volume of out-of-court settlements in civil cases, and of plea-bargaining in criminal matters, contrast sharply with the adjudicative adversary ideal? And can one ignore the growing bulk of evidence of “lynch-justice” in police stations and jails?
These are big questions, but sociological studies of national legal orders have begun to point to the great gap between rhetoric and reality, between proclaimed objectives and dysfunctional processes and results. The lesson to be drawn from these partial and ongoing explorations is not that there are no significant differences between SLS and NSLS but that these differences are of degree rather than of kind.