3. EXPLANATION
There is considerable evidence of multilegalism or autonomous existence of two or more dispute-resolution systems – at levels of norm, behaviour and culture. How is this to be explained?
B.
Cohn (1959) maintains that “the way a people settle disputes is part of its social structure and value system”. The indigenous and the “official” legal systems differ rather drastically in both these aspects. The constitutionally desired social order seeks to foster (in part) through the legal system the value of equality, whereas “the North Indian society operates on the reverse value hypothesis: Men are not born equal and they have widely differing inherent worth.” Cohn comments:“The adversary system has developed to equalize persons in court. To an Indian peasant this is an impossible situation to understand. The Chamar knows he is not equal to the Thakur.... The Thakur cannot be convinced in any way that the Chamar is equal, but the court acts as if the parties to the dispute were equal.”
Moreover, Indian villages are “multiplex” societies; and the “network of relationships” thus involved cannot be “summarily cut by a decision of the courts";
“Two Thakurs disputing over a piece of land are not only buyer and seller with a contractual tie, but in classificatory kinship terms are brothers or uncle and nephew.... So decisions of the courts based on ideas of contract do not fit in the value system and social structure of the Indian village.”
Nor do the notions of relevance engendered by law or procedure and evidence, and the winner-take-all principle of the adversary system, accord with the “traditional” preference for settling disputes through consensus and with liberalism in the notion of relevant matters shown by the indigenous tribunals.
Beteille somewhat similarly finds (1965: 154–165) that in the Tanjore village the village panchayat, under statutory protection and political patronage, is less effective than the de facto cheri panchayat, without either.
The village panchayat is relatively weaker because it is an attempt involving an “imposition of a democratic formal structure on a social substratum which is segmental and hierarchical in nature”. In contrast, the effectiveness of the cheri panchayat is due to “its social homogeneity and the pervasive nature of the moral bonds which unite its members”. The “vitality” of this panchayat lies in its “correspondence” with the structure of the “community which it represents”.Kidder (1973) proposes an explanation which stresses the limitations of the SLS as arising from “the social structure of the judicial system rather than in their incongruity with indigenous values”. Kidder analyses in some considerable detail the bureaucratization of the system of judicial justice leading to a de facto maximization of the judicial pursuit of compromise through a de jure adversary system. One central factor is delay in judicial disposal. Kidder finds that:
“In Mysore state... the ’average duration of contested original suits’ disposed of during 1966–67 by judicial decree was slightly over seventeen years.”
In some instance, delays extend over a little over two decades. But this delay, and the frustrations attendant upon it, seem to be regarded by most litigants “as being the intentional product of a shrewd” adversary; for other litigants, delaying procedures were a part of a war of attrition aimed to terminate in a compromise. Nor does the ultimate resolution favourable to the plaintiff (who thus compromises) mean a “final victory” for him. Kidder notes:
“One landlord spent five years getting an eviction decree on his tenant only to have the ?defeated’ tenant disappear with the key. He then learned from the police that the tenant could easily keep him out of the house for at least two years just by manipulating police eviction procedures. Meanwhile, the landlord could not even collect rent on the property.”
Over-recourse and non-recourse to courts is thus related to what Kidder calls “the failure of the adjudicative ideal”.
In this view this failure is better explained by reference to the structure of “adversial relationships” rather that through value-incompatibility hypotheses like Cohn's. This is so because the pattern of compromise and delay is neither “expected” nor “valued” by the court-users and because such a pattern is far from unknown in practice to American and British litigants.The opposition between “cultural” and “social structural” approaches has been a familiar theme in legal anthropology (Moore, 1966). In the present context, Kidder's analysis does not quite join issue with Cohn's. As Kidder himself states, his research was conducted “in the courts of Bangalore, Mysore state, with supplementary observations made in lesser courts in outlying districts”. How much the “outlying districts” approximate to Cohn's Senepur village remains a matter of conjecture. Be that as it may, it must be emphasized that recourse, non-recourse and over-recourse to courts must be affected by a myriad of factors. The language of the law, physical distance from court-sites, economics of litigation, the nature of contention inter partes, are also some of the relevant variables here.
Cohn asserts that in a culture-conflict situation the “Indians in response thought only of manipulating the new situation and did not use courts to settle disputes but to further them” (Cohn, 1959: 155). Such a view, according to Kidder (with whom I agree), misjudges “the importance of conflict as a constructive force in social interaction” and also ignores “the opportunity which is created by systems of formal adjudication” (Kidder, 1973: 31).
The importance of conflict as a “constructive force in social action” has been imaginatively explored in two recent works by Anand Chakravarty (1975) and Miriam Sharma (1979). These studies depict the relation between the nature of dispute and their processing with reference to power relations and transformations of power relations and structure in rural India.
Growth of new patterns of leadership and authority becomes significantly related to dispute behaviour and ways of channelling and controlling it. Ability of a faction leader to deliver “justice,” by attacking bias or inertia or hostility on the part of other leaders (who lead or influence community adjudication) seems an important source of legitimation of leadership and authority (Chakravarty, 1975). This is what seems to be happening when we look at dispute from a social structure standpoint. When we look at dispute processes from the actor's point of view we find some tendencies towards “forum shopping.” In other words, disputants in most cases do seem to retain the final option as to whether they will resort to a third-party intervention and if they so do whether the third party agency would be a caste panchayat or a village one or nyaya panchayats or official courts (Sharma, 1979). Of course, the choice is circumscribed not only by the “cultural” or “political” factors but also by “economic” ones. For, very often, recourse to any third party intervention costs money (even calling of biradari or panchayat is in some cases expensive); and recourse to SLS agencies, police and courts, often requires substantial investment for all the parties involved (Sharma, 1979; Chakravarty, 1975 mentions at many places the examples of bribery and extortion by agents of NSLS).