The Aborted Restoration of “Indigenous” Law in India,
Marc Galanter
The imposition of English law and legal institutions in India aimed to introduce a radical discontinuity with preexisting understandings of justice. The new European-style justice system seemed complex and alien to local sensibilities, but at the same time the classical, Hindu-based dharmasastra tradition in some ways became irrelevant as a viable alternative.
Indeed, the Hindu concept of a legal order based explicitly on social hierarchy and inequality now appeared unjust to many Indians after independence from English colonial rule was achieved. Moreover, efforts to return to village-based justice tribunals, known as panchayats, failed to recapture traditional understandings of local customary law and religion since they were now embedded in the centralized justice system rather than reflecting local autonomy. Although longstanding views of law and religion persisted in India, it was no longer apparent how they could be expressed within a “modern” and secular legal order.Traditional law - Hindu, Muslim and customary - has been almost entirely displaced from the modern Indian legal system. Today, the classical dharmasastra component of Hindu law is almost completely obliterated. It remains the original source of various rules of family law. But these rules are intermixed with rules from other sources and are administered in the common-law style, isolated from sastric techniques of interpretation and procedure. In other fields of law, dharmasastra is not employed as a source of precedent, analogy or inspiration. As a procedural-technical system of laws, a corpus of doctrines, techniques and institutions, dharmasastra is no longer functioning. This is equally true of Muslim law. The local customary component of traditional law is also a source of official rules at a few isolated points, but it too has been abandoned as a living source of law.
[...]The dichotomy between the official law and popular legality has been the theme of a continuing stream of criticism from administrators, nationalists and students of Indian society, who have emphasized the unsuitability of British- style law in India. As a scholarly British District Officer plaintively concluded in 1945:
we proceeded, with the best of intentions, to clamp down upon India a vast system of law and administration which was for the most part quite unsuited to the people.... In Indian conditions the whole elaborate machinery of English Law, which Englishmen tended to think so perfect, simply didn't work and has been completely perverted.1
Administrators and observers have blamed the legal system for promoting a flood of interminable and wasteful litigation, for encouraging perjury and corruption, and generally exacerbating disputes by eroding traditional consensual methods of dispute-resolution. The indictment was familiar by the midnineteenth century:
in lieu of this simple and rational mode of dispensing justice, we have given the natives an obscure, complicated, pedantic system of English law, full of ?artificial technicalities', which... force them to have recourse to a swarm of attorneys... that is... professional rogues... by means of which we have taught an ingenious people to refine upon the quibbles and fictions of English lawyers.... The course of justice, civil as well as criminal, is utterly confounded in a maze of artifice and fraud, and the natives, both high and low, are becoming more and more demoralized.[26] [27] [...] In the nationalist movement, there were similar complaints, issuing in proposals for the restoration of indigenous justice. There was hostility to the courts as an agency of British control, and the civil disobedience movements of 1920-2 and 1931 included attempts to boycott the official courts and to organize truly Indian tribunals which would work by conciliation, relying on moral suasion rather than coercive sanctions. The misgivings of some nationalists about the legal system were succinctly expressed by a Gandhian publicist in 1946, who accused the British system of working havoc in India by replacing quick, cheap and efficient panchayat justice with expensive and slow courts which promote endless dishonesty and degrade public morality. Existing law, he said, is too foreign and too complex; this complexity promotes ?criminal mentality and crime'. In their place he would have panchayats dispense justice at the village level, thereby eliminating the need for lawyers and complex laws.[28] The ConstituentAssembly (1947—9) contained no spokesmen for a restoration of dharmasastra, nor for a revival of local customary law as such. An attempt by Gandhians and ?traditionalists' to form a polity based on village autonomy and self-sufficiency was rejected by the Assembly, which opted for a federal and parliamentary republic with centralized bureaucratic administration. The only concession to the Gandhians was a Directive Principle in favor of village panchayats as units of local self-government. The existing legal system was retained intact, new powers granted to the judiciary and its independence enhanced by elaborate protections. All in all, the Constitution amounted to an endorsement of the existing legal system. [...] In the late 1950s the Government adopted the policy of community development, whereby elective village panchayats were established as instruments of village self-government in the hope that they would increase initiative and participation in economic development. [...] There is little reason to think of panchayats as a reassertion of local norms or institutions. It has been pointed out that administrative panchayats have tended to act as downward channels for the dissemination of official policies rather than as forums for the assertion of local interests as locally conceived. It is submitted that this is the case with judicial panchayats too. Rather than inspiring a resurgence of indigenous local law, they may serve as agencies for disseminating official norms and procedures and further displacing traditional local law by official law within the village. [...] [T]he proponents of an indigenous system presented no vivid alternative. Contrast, for example, movements for replacing one language with another, where there is an alternative that is palpable to all and clearly promises advantage, symbolic if not tangible, to many. Dharmasdstra, of course, was one alternative, an elaborate and sophisticated body of legal learning. But any proposal in this direction would run foul of some of Independent India's most central commitments. It would violate her commitment to a secular state, insuring equal participation to religious minorities. Furthermore, dharmasastras emphasis on graded inequality would run counter to the principle of equality and would encounter widespread opposition to the privileged position of the castes. Indeed, the one area where dharmasastra retained some legal force, Hindu family law, was in the early r950s being subjected to thorough reform which largely abandoned the sastra in favor of a Hindu law built on modern notions. Thus, it is hardly surprising that none of the documents supporting nyaya panchayats even mentions dharmasastra. While few would condemn it (as had an earlier generation of reformers) claims on its behalf were limited to the symbolic and intellectual levels. It was not an available alternative for practical application. 1.7