Gender, Power, and Legal Pluralism: Rajasthan, India,

Erin P. Moore

This study by Erin P. Moore of a rural community in Rajasthan, India, exemplifies research on legal pluralism “from the ground up.” The author's perspective does not make state law or state legal institutions central to her analysis.

An older man in a rumpled coat and full loose pants leans over the white- bearded maulavi, or Muslim religious teacher, and complains that his uncle, his father's younger brother, took his two-and-a-half-acre parcel of land, sowed it, and refuses to give it back.

What do the three petitioners - the man seeking the return of his land, the woman who has borne only female children, and the young married woman possessed by spirits - have in common? Why do they seek the help of the maulavi? To answer these questions, I will examine the dispute-processing alternatives that are available to the rural villager in northeastern Rajasthan, India, showing how these alternatives are shaped by power and resistance.

In theory, the Rajasthani villager has a variety of options available for the public airing of a grievance. There are dispute-processing forums that repre­sent the ideological interests of religion, the dominant caste within the village, and the state. Each forum has different economic-political origins, represents a different philosophy of justice, and has its own procedural and substantive laws: state, village “customary,” or religious. Each forum represents a different manifestation of patriarchy. In secular India, the voice of religion that once dictated the rule of state now finds its public forum for dispute resolution limited to caste panchayats. (The religious traditions that dictate the personal laws for Hindus and Muslims in the state courts have been severely limited.) In this area of Rajasthan, however, caste (jati) panchayats are no longer active in the settlement of conflicts. The state courts and the village panchayat (the community council of the dominant caste) are the two main dispute­processing forums used by the villagers. The villagers theoretically have one other forum, the “committee.” The committee, a statutory creation of the state government, was designed for village administration and the resolution of petty conflicts at the village level. However, this forum too has been co-opted by the village power structure.

The range of sources of the law and their associated institutions is referred to as legal pluralism. Starr and Collier note, “Legal orders should not be treated as closed cultural systems that one group can impose on another, but rather as �?codes,' discourses, and languages in which people pursue their varying and often antagonistic interests.”^[76] There is a continuing negotiation among the systems, and a villager may use a variety of forums in the course of any one dispute.

While there is competition and contradiction among the systems, in reality these legal arenas are almost exclusively the domain of the powerful.

It is not surprising that the young women and the old man described above should have met at the maulavi's cot. They are in similar positions of political weakness in relation to the village dominants. In the opinion of the old man, his claims go unaddressed because he is poor and powerless. For justice, he turns from the courts and panchayats to the maulavi of Nagina. The young bride and the woman with too many daughters also fit into this paradigm, in which law is understood as social control. The rural peasant women of north India do not have a dispute-processing forum to curry their loyalty. Like the old man, they have no one who will listen to their complaints. North Indian women marry outside their natal villages and, at least for several years after marriage, are under the control of a mother-in-law who is the domestic head of the extended family. Lonely, tired, overworked, and sometimes undernour­ished, these women become sick and often possessed by spirits. [...]

[T]he Indian women who fall ill or become possessed and then visit a maulavi are responding to their oppression in ways culturally consistent with their subordinate female status. It is not expected that they will protest in a court or panchayat. Instead, they may convert a social distress into a physical

105 distress. This is what I call the “somatization of conflict.” In such cases, getting “sick” is a mode of seeking justice. [...] [T]he body becomes an instrument for the expression of distress and alienation; it becomes a locus for control and resistance.

[Here,] I offer an introduction to the pluralistic systems of normative ordering in rural Rajasthan, India, presenting the villagers' experiences of the central legal institutions, the councils and courts, as a framework in which to understand the maulavi at Nagina. By considering this spirit healer as part of the legal system, I break the usual sociolegal boundaries of the “law.” The study of cross-cultural conflict and legal pluralism most often focuses on statutory law, courts, and councils, not on healers, although it sometimes examines witchcraft or religion as an alternative remedy agent. In research that does explore healing and dispute processing, the healing ceremony is considered the dominant mode of resolution rather than an alternative for the powerless. The resort to traditional healers ought to be examined within a sociolegal framework.

By understanding the political context of health complaints, we broaden the legal field to reembrace issues ceded to the medical field: stress, somatiza­tion, and the role of traditional healers. In northern India, villagers see the lawyer and the healer as parts of a continuum of options. At the legal end of this continuum, issues are addressed in the social arena of family, caste, or village, and the stated goal of the petitioner is “justice.” At the medical end of this continuum, the “trouble case” is seen as an individual, and often physical, issue that is unconsciously incorporated into the body. The social subaltern seeks a personal solution offered by a healer, and the goal is health. Justice and health are different names for the same aim: harmony, peace, and order. [...]

Attention to the maulavi's spirit healing not only broadens our perspective on dispute-processing forums and on indigenous meanings of justice but also provides insight into victimizations by the state and village laws.

[Moore goes on to describe her extended fieldwork over a ten-year period in a rural village in northeastern Rajasthan, which she calls Nara. Nara's popula­tion includes Hindus and Sikhs, but the community is dominated by the Meo caste, which is Muslim. The men from all three religious groups “believe that it is their duty to control the women of their lineage,” and they monitor the women's movements and restrict their interactions with others. Most married women come from outside the village and are brought in as brides, which adds to their vulnerability and isolation. Moore notes that “Younger women counter the isolation of life in the affinal village with visits or flights home, where they are pampered by their mothers and seek the support of their fathers, brothers, and uncles in their battles in the affinal village.” In Moore's account, patterns of disputing and dispute resolution must be under­stood within a social context crosscut by religious and cultural differences and by rigid gender roles and power disparities. Next, Moore turns to a map of the “landscape of disputing” in the village.]

[T]he Landscape of Disputing village forums: panchayats The dispute-processing forum used most fre­quently by the villagers is the panchayat. The word panchayat (panca:yat is derived from the Sanskrit root panc, meaning five, but Nara villagers refer to any community meeting of any number of men (women are not invited) as a panchayat. Even in terms of disputes, the Nara panchayat is not one thing. It is a form of flexible membership for male community input: to witness the repayment of a debt, to collect evidence, to air grievances, or to work toward a compromise in a dispute. A process more than a single event, the panchayat usually entails a series of meetings with differing degrees of privacy, leader­ship, and consultation with various members.

This council is discussed in the literature as one of two types: a caste panchayat or a village panchayat. In Nara, the distinction between them is not always clear. All panchayats include men from a variety of castes, but in intracaste disputes, particularly those involving domestic issues, the caste whose members are in conflict controls the panchayat. In intercaste disputes, the Meos dominate.

caste panchayats At one time caste panchayats promoted caste solidarity, unifying the people of dispersed villages under one social institution that regulated the behavior of individual caste members. The caste panchayat dealt with the infringement of caste rules, particularly in personal matters (such as marriage and divorce), sexual offenses, and the maintenance of service relationships. Almost every modern account of caste panchayats ends with a comment on the decline in their power. Some scholars attribute the decline to the establishment of British courts, while others believe that caste solidarity has gradually been replaced by village solidarity. In either case, the replacement of caste authority by village or state authority is the result of concerted political action to eliminate competing spheres of authority.

Multivillage caste panchayats seldom convene in northeastern Rajasthan. “Who has five or six thousand rupees?” one caste elder asked rhetorically. Today the caste may gather at a funeral feast, a wedding, a celebration over the birth of a son, or a festival, taking that opportunity to discuss a variety of issues: elections, the set fees for caste-related village services, government benefits, education, dowries, or proper moral conduct. Disputes are seldom discussed. Caste-men complain that it is almost impossible to enforce caste rules today. The state has forbidden outcasting under both the defamation laws and the Indian Untouchability Act. Villagers fear that they would be fined and put in jail for outcasting a fellow caste member. At the same time, the caste is not united as it used to be. The village watercarriers told me that several years earlier the caste had ostracized a watercarrier; he had eventually paid 1,000 rupees to the watercarriers in a neighboring state, and they had accepted him. In addition, the dominant castes in the villages control dispute settlement in their territories. The head of the leatherworkers for the 210 villages of their panchayat said that he was no longer asked to settle disputes. In the Ahir villages, the Ahirs (a landowning caste) settled the cases themselves, and in the Meo villages, the Meos had the village as a whole settle them. [...]

Nara women do not expect to find justice in the panchayats or the courts. These are the men's forums. “Where does a woman find justice?” I asked. A Meo woman responded: “If there is any dispute or you are angry, you are just angry within yourself and keep on working. You don't go anywhere.” Another Meo woman said: “You don't go anywhere. Women are not panches; if you go to a neighbor woman and tell her about your trouble, it will create more trouble.” A sweeper woman, whose caste was the lowest in the village and was represented by only one household, said: “If someone curses me, I say go ahead and curse me. I don't care.” If she was not paid her wages, she did nothing about it. She had no options. [...]

the “committee” To combat village partisanship and extend the powers of the state under the guise of “democratic decentralization,” the Indian federal constitution mandated that each state recognize the panchayats and endow them with state powers enabling them to act as authorized units of self­government. Under state law, Nara is governed not by the village (Meo) panchayat but by representatives elected from Nara and the three surrounding villages, a population of about 3,000. This body is officially called the gram panchayat (literally, the village council), but the villagers refer to it as the “committee” (using the English word). I will do the same. The lowest level of a three-tier organization of regional government with administrative and judicial authority, the committee was envisioned as a union of what was believed to be the best of both the village panchayats and the low-level state system. In its judicial role, the designers hoped it would afford easy access to inexpensive, informal justice because it would rely on an elected leadership, a government secretary, mandatory female and untouchable caste representa­tion, and statutory rules of law and procedure.

In Nara the committee functions, if at all, like the village panchayat. Neither women nor untouchables are invited into this multicaste, male bastion. Instead, an attendance book is sent to the required representatives, wherever they may be working, and the impression of their thumbprints is to suffice as proof of their presence to the auditors. At the time of my fieldwork, the village panchayat was usually the villagers' choice of dispute-processing forum. If one or both of the disputing parties happened to be Hindu, they would try to interest Nara's Hindu sarpanch, the elected committee chair, and ask him to join the village panchayat. Generally, he sat to one side of the gathering and listened silently even when goaded to give his opinion. A Hindu in a Meo-dominated village, he respected the jurisdiction of the powerful Nara elite. He too relied on Meo reciprocities. The Nara sarpanch had been the chair for the past 30 years but did not believe that the committee, his committee, could dispense justice. In his opinion, the vote divided people and the committee members supported only those villagers who voted for them. “There is only this �?party politics,'” he said, using the commonly employed English words. Baxi and Galanter point out that because the committee is the conduit for community development funds and grants for the needy, the elections for the sarpanch are hotly contested and the dominant sections of the village often capture power for their own ends. This has been the experi­ence of the Nara villagers. Nara's wealthiest villager commented:

The panches [here, the men of the committee] say, “You do my work and I'll do yours.”... The panches take money; they are not impartial. The panches and sarpanches that take money are like dogs eating shit. They settle the cases with partiality; they do not give true justice.... They fill their stomachs.

Because the committee is co-opted by the powerful of the village, villagers who want to circumvent the powerful may turn to the state courts.

state courts One of the most noted achievements of British rule in India was the formation of a unified national legal system. In all matters except personal laws (laws relating to marriage, divorce, inheritance, adoption, and so on), uniform territorial rules were established. Attention to the individual and the enforcement of standards without reference to the group meant that the new court system might offer new avenues for mobility and advancement for both the powerful elite and the village underclasses.

In Nara, I found that the majority of upper-caste men had had some experience with the state legal system. Generally the women had only had experience through their husbands. Still, Nara villagers complained about the corruption in the courts. “With money you can buy any result you want; if you put the skull of a man whom you have killed into the palm of your hand and lay five or ten thousand rupees on top of that, you will be set free,” an untouchable man told me. This story was repeated by other villagers. The courts are seen as an arena of and for the powerful. The police are feared for their liberal use of the stick against both sides, the complainant and the respondent. Lawyers are feared for their verbal skills, which can turn truth into lies, and all the actors-witnesses, lawyers, judges, and police-are vulner­able to bribes. [...]

In practice, state forums are little different from the panchayats in their treatment of Nara village women. State laws are written to give women their say in village government (on the committee), but in Nara the women are excluded and the attendance books are brought to them for their thumbprints. State courts, too, often fail to protect women. [...]

negotiating forums The choice of dispute-processing forums has very specific consequences on relationships within the village. There is significant pressure from the powerful elders to use the village forums for dispute processing. To bring a dispute involving villagers before the panchayat is said to give honor to the community. In fact, it preserves the community power structure. As Mullings observes in discussing Ghanaian medical healers, to choose the traditional system (whether healer or dispute-processing forum) is to reaffirm the lineage, the collectivity, respect for the elders, and local reciprocity.^[77] The state court system undermines village hierarchies and limits the area of dispute to the individual and the particular conflict. As a result, a villager can choose to minimize or maximize his or her local worth by the choice of forum. India has no jury system; a petition to the court asks for a decision by one man and for a state-defined solution, both alien to the panchayat. [...]

The majority of Nara women told me they did not believe that either the village panchayats or the state courts would offer them justice. Village women have few sanctioned means of redressing perceived injustices. There is no dispute settlement forum that welcomes their complaints, and the men often fail to see women's domestic issues as actionable. The local male culture would not consider it unfair to harass a young woman who bears only female children, who is sterile, or who claims equal rights in divorce, parenting, and inheritance. Those with issues that concern parties of unequal power, or issues that involve people who do not have the power to interest the panches in gathering, seek their justice elsewhere.

Villagers and judges alike repeated the refrain that real justice came only from God. They rolled their eyes upward, lamenting today's corruption. If the panchayats functioned according to local ideology, the panchayats too would offer God's wisdom. But they do not. As everyone reminded me, now is the kali yuga, the dark age (one of the cyclic ages in the Hindu calendar) when people are dishonest, selfish, and thieving. Some villagers turned their gaze to the God within. A leatherworker man said optimistically: “Today justice is in your heart and nowhere else. You don't find it outside. If you are true to the world, then the whole world is true to you.” For the disempowered, the choice to remain silent in the face of conflict is born of necessity. [...]

I argue that the appeal to the maulavi in Nagina is one form of female resistance. When young brides suffer and leave the village for care, they are expressing gender conflict in terms of sickness. Women's complaints are re­formed in the discourse of the maulavi. His is a medical discourse; he is not a counselor or a judge but a healer. An excursion to the maulavi may be the Nara women's distinctive form of work stoppage. The visit usually requires an overnight stay, meaning that the woman and often her husband or brother are pampered at the home of a relative; they buy gifts for the children at home (adding excitement and expectation to their homecoming); and she enjoys a needed break from the routine of daily work and a mother-in-law. In addition, the maulavi's cures often require that the patient drink a quarter kilo of warm, sweetened milk and take a warm bath daily. These would be mandated luxuries for a woman in Nara. The maulavi's cure always involves a naqas that is to be worn forever. But the naqas becomes polluted and must be replaced, requiring a return visit at least once a year.

Judging whether the women are resisting or merely surviving their circum­stances calls for sensitivity to both a gendered and an Indian notion of resist­ance. Cultural variability is not adequately discussed in the literature on resistance. Instead, when Abu-Lughod describes resistance among the Bedouin women of northern Egypt she suggests that the ethnologist turn from explaining resistance to “us[ing] resistance as a diagnostic of power.” She draws upon Foucault's insights on power to say, “where there is resistance, there is power.”^[78] A focus on resistance should lead the investigation back to relationships of power and their methods of oppression. In north India, the active use of the maulavi in dispute processing and the extensive treatment of women for spirit possession and gender-specific ills call attention to female repression and the exclusion of women, as well as other weak members of society, from the legal arena of courts and panchayats. When men petition the maulavi they can discuss their social conflicts in a legal discourse. Women, more often, must mask their complaints against the patriarchy in a medical discourse. They somatize the complaints.