TOWARDS A SOCIOLOGY OF INDIAN LAW UPENDRA BAXI SATVAHANDedicated to the Memory of Professor Julius Stone ‘Towards 2 Sociology of Indian Law ‘UPENDRA BAXI First Edition © 1986 Published by Satvahan Publications ‘New Delhi 110 065 Composed by ‘Amar Composing Agency Naveen Shahadra, Delhi 110032 Printed at Galaxy Printers | Detbi 110032 Preface ‘The original of the present monograph was commissioned by the Indian Council of Social Science Research, as 2 contribution to their Sursey of Research in Sociology and Social Anthropology, 1969-1979 (Satvahan, 1986). The text of this Survey, reproduced here in an augmented form, goes much farther back than 1969 ; I record here my appreciation of the ICSSR for their indulgence on this score. Since the text was submitted to the ICSSR in early 1980, it explored ‘themes, issues and literature emerging till then. Since the Survey is being published only now (1985), I requested the ICSSR to permit a separate monographic publication with a postscript and supplementary biblio- raphy, since to revise the manuscript would not merely have added to the delay in the publicatioa of theie series but also disrupted theie time- span for the Survey series. remain appreciative of the ICSSR’s ready ‘agreement to this suggestion, ‘The period 1980-1985 has produced a fascinating corpus of literature relevant to sociological exploration of the law. This literature ranges from work on classical Indian jurisprudence to the contemporary profile ‘of the Indian legal profession. Itisnot possible to provide a detailed thematic review of all these works, but iaterested readers will, we hope, find the supplementary bibliography useful. In the Postscript we focus on three significant domains : compensatory discrimination policies, the emergent subaltern studies and social action litigation (still miscalled “public interest litigation”). ‘The publication of the Survey, with additional materials, is perhaps, justiied by the hope that this format will make it easily accessible to students and scholars concerned with sociology of law. In particular, we hhope that this format will help instruction in courses like ‘Law and Society’, ‘Law and Social Change’, ‘Legal History’ and ‘Legal System". am deeply grateful to Shri Satish Chander and his colleagues at the Delhi University Law Library for their warm-hearted co-operation. Shri H.C. Jain and Shri Pramod Singh of the Indian Law Institute Libraryws assisted me at irritatingly short notices to complete details of the biblio- graphy. Shri K.J. Kapoor, now with the Indian assisted me in preparation of biblio Jaw; and Shri D. Sud, then a studen Delhi University, saved me omission. Shei $8. Narula and Satvahan Publications took the initiative for this publication, The argus-eyed editing by Shri Narula has contributed immeasurably to making presentable an otherwise musty manuseript, It isa rare experience for an Indian uthor to hiave a publisher who is so demanding of the author as Shri Narula. Society of International Law, ssraphy and sourees on customary tin Master of Law's programme at from many errors of commission and New Delhi Upendra Baxi Contents Preface Introduction Classical Hindu Law Law and Social Change : The Colonial Experience ‘Law and Social Change io Contemporary India People’s Law, Development and Justice ‘Tribal Law and Justice ‘The Nyaya Panchayats Law and Social Control Adjudication under State Legal System Conclusion Postscript Bibliography Supplementary Bibliography Subject Index ‘Name Index 45 66 82 95 109 8 19 137 154 157 165INTRODUCTION ‘The French Sociological jurist Maurice Hariow observed (using sociox logy in a generic sense) that “too little sociology leads away from law, Dut much sociology leads ‘beck to it.” And George Guriteh rightly supplemented this statement by saying that “a litle law leads away from sociology but much law leads ‘back to it” (Gurvitch, 1947:3) Ifonn looks atthe history of Western sociology, itis clear that ‘much soclology" did indeed lead its founders back to law. The structural significance of law, in the broadest sense, was most clearly recognized by the founders of modern sociology like Durkheim, Weber and Marx. Their conceptual ke prose without knowing it) might be done better sel-consciously under the framework of an emergent sociology of Indian law ? And nally, whatever may be our answers and approaches to the foregoing, may one not expect through the present endeavour some points of convergence in concem between law and otber sciences ? Alteady, at least on the side of law teaching and research, there are clear indications of growing appreciation of the social roles of legal processes ‘and institutions. May we not find in the present essay a plea for similar responsiveness among social scientists? Organization of disparate materials for the present survey has posed massive problems. For the sake of convenience, rather than from any compelling scientific necessity, the survey of themes and literature ig ‘divided into following categories : 1. Studies on Classical Hindu Law. 2. Law and Social Change : The Colonial Experience,4 SOCIOLOGY OF LAW . Law and Social Change : Some Aspects of Contemporary Experience. |. People’s Law or Non-State Legal Systems. 5. Tribal Law and Justice. 5. Nyaya Panchayats. 7. Law and Social Control, 8. Adjudication under State Legal Systems. Not all the available literature has been exemined, or even mentioned in the text, though an attempt has been made to make the bibliography as complete as possible. A variety of methods has been used to examine salient themes and literature, including the rather unconventional one of (for the present format) rather detailed examination of some works which deserve fuller exposition. The result is not aesthetically pleasant; but fone hopes that the untidiness is somewhat compensated by the issues raised overall by the survey. 1 CLASSICAL HINDU LAW Veena Das noted, in the previous survey, the complexities of the dialectic between the law ia the books and the law in action with regard to harma-sastras. She complained rightly, and without at all belitling the rmaguitude of achievement, that Kane's “monumental six volume work” does not, after all, “give one any insight into the structure of legal rules.” She preferred to such exegetical and doctrinal method the more explicit ethnographical work. But on the whole she lamented the lack of a “single sociological compilation of corpus juris for any social group in India” (Das, 1974 : 368-75). A major publication since then has been Robert Lingat’s (1973) Classical Law of India (translated by J.D.M. Derrett, tohwhom all students of Indian law and society stand now further indebted). Lingat’s analysis relates to many perplexities which assailed Veena Das and is generally pertinent to any account of social thought on Indian (and not just the Hindu) law. Lingat’s contribution merits an extended analysis in this section. Lingat formulates with enviable elegance of style, certain basic ‘questions : How is one to distinguish (prior to the advent of the Western conceptions of law and authority) between dharma and law, between dharma, law, custom, and royal power? What kinds of relationships exist among these ? What are the relationships between the law-in-books and the Taw-in-action ? What are the distinctive features of the Hindu jurisprudence? These, and related questions, have no doubt preoccupied eminent scholars inthe eld: but Lingat offers, a systematic array ‘of answers to them, and subsequent work ia the area will have to take ‘them as starting points for thought. ‘Dharma, explains Lingat, is not merely a “set of eternal laws", inherent in the nature of things but is also a “morality addressed to men ia society,” a morality which specifies the “totality of duties which bears: Basso 0y maintenance of social order.” To deviate from its requirer visto ‘table; its authority derives from the natural order of thi fea “onsriniogpover by it" Ling, the ole of dlarne wi seman aed eco ‘the concept of law" (ibid. 5-6). Hence the probe: Can we anlyicllydsegege the rls of dharm from juridical rules? The latter, quite prominent i dharmasasiras ontiaue 19 be ingorpcrated with als ofs purely relict inspiration." The rule of prescription (iinen formulated by Yajnavalky, ic “virtual of Corot, SVETSE Possession) enjoins upon a dvija a duty his own.” Both these precepts “ ments necessary to maint Angat’s sharp formulation : Do they have the ieee 2” (ibid, ent an unquestionable 1 is necessarily complex. “in European sense of that word “there never was in Indi se of that word, atin ot at least in matters of they also offered (particularly “in the judges K ral ly “in the judges’ eyes”) “some frame, of oil reasoning” (bi, 14). “The press oem exposed to the Sevlla of custom ard the Charybais of yal pepe ‘sovernmental policies. “The voyage from Dharma to lay izes, became possible because ofthe labours of come Drecepts it was only with the Mimeas * aus jariicalscianée began in India” (id, 143), ue must turn to the art of interpretation Gj tuty SUN fH oth f interpretation id 143.175) 10 reting the texts d whether through the inction between a vidhi (precept rand Lingat empha- CLASSICAL. HINDU LAW 4 ‘embodying an injunction) and an arthavada (additional varbiage offering eseriptions, elaborations or reasons for injunctions) or of manipulating the rules for resolving differences between two sasiric texts of equal authority (see the discussion of Vijaanesvara’s exegsis on adverse posses- sion and prescription at pp. 161-167 ibd). It should sufice to note here that the jasstie concern with interpretation, overtly analytical and exegeti= cal though it may appear, continually made sastric precepts responsive to social reatties, within which they iad to function as rules for conduct, Sometimes, such interpretation legitimized local customs : the most dra- atic example being furnished by Madhava’s interpretation of Manu. (ibid, 1X: 172-133) which prohibits the marriage of a boy with his ‘maternal uncle's or paternal aunt's daugbter—common among South Indians. Ina four de force of exegesis, Madhava reinterprets the verse to sanction what it expressly prohibits! (ibid, 169-71). It is the same type of creative ability which enables both Vijnanesvara and Jimutavahana to derive from the Smriti text “violently opposed theses” resulting into now well-known ‘schools’ (respectivey) of Mitaksara and Dayabaga (@i., 172-75. Lingat warns us, rightly, not to assume that the commentators’ role or function was to “‘canoni2s” custom. Customary rules are “often imprecise and incomplete.” Interpretation “offers them a. framework which demands adjustments and correctives in enunciation, at the same time it allows gaps to be filed.” It is this framework through which interpretation could exercise infiuence upon custom “even when custom hhas not directed its choice” (ibid. 172). We sce continuing examples of this kind of interaction in Lingat’s absorbing analysis of contrasts and conilicts between diarma and custom. The precepts of diarma, and of law, stand in sharp contrast to those of custom. Sastric law (religious and juridical) is didactic, religious in conception and consequences. Rule of custom, in principle, “is different to the religious consequences of an act” : custom may be consonant with sastriclaw, or may be in acate conflict with them, Sasiric law, as eternal netaral law is independent of human volition : “the rales govern ‘the activity of men : they are not influenced by man” whereas custom is a “‘purely human development.” While dharma, and law related to it, has a “transcendent character,” custom is @ “social phenomenon.”” Dinarma is immutable and universel : custom is territorially limited and. variable (bid, 176-77). Lingat. shows, however, that these ideal-typical eon ‘wasts dravin in Titerature eam mislead us: indeed, he demonstrates that despite these contrasts, the sasric texts disclose “a place for custom in the agenesis of dharma” (ibid. 177). How does this come about ? Firsily, the sastras explicitly recognize ‘sad-acara, the custom of the good or sista-acara, the custom of the initiae fed, instructed and virtuous as a source of dharma. In a sense, the good-nescenenssreaaanaalam aa : waco i custom ata once of diame, “amounts to syiog tat the eondustof sregone siold be sued by ato rat, oe nae of omens ee Iavioas is equited by “obedience forthe anise her ee eg Eventhough sone ommanttorsensesoart te saan Me non a to include behaviour of those nor learned in the Vedas, the custom which would count as a rule of dharma “must not only be immemorial but also, Het tom el apart wor mote eee ae consideration” (ibid., 180), Sond) despite ser texts demonstrate cleat the nd ence of ut in lori of Seen ake a iced rs orosedue fer earog ey cs ime know, thodp acne ns’ pncipiog os Sadana mirage of dle wih dra womens ores a ae Poteet ov a son of Bata, ap Te, fe for share of Fura) lay be tat be incorporation sci kee na ema Seer eet ané_ ay tamer te nls ot ee ‘neither the fact of incorporation nor the resultant nexus between he wma and custom can be gainsaid. a Third, tao of ga, aecly a developed Pepstne arate een soem to ake har ade ene cede came won Srprencl “hough cuoms ant ag eh ee a ane ives cca cpt ns four pros Gages Lee toe neem) is followed by treta, dvapara and finally the kali (the present, decadent tes). Esch ped hae is ows chances ek ae a What varies, according to Lingat, are not the “ ae ate (inde 18. Me tu bit my, Lng concedes tat he theo ‘ Lina concedes ht the theo) of ages as “led Gy tale to ete star acna at o AR td cia steal tte eden gun eye a cand {alow (ds 19. The soamecnes creas tag MS wd 0 fea tht the ile ofdhoma mot tole elewcd te ne fein) oluatestulforeesmeont ere iereaen Bip abe of wom, Snough esoind Grae ea eae Kalearjes iy ace pronibted ote Eek gan Demme thus einapse ovr he souris ace: soap ese em Of ie seamestiors tempts oon Sa gst att frauovstt of sonic lays Tigi, bowen leioaree anes theory bs mya nope cara oF egy a E tak a ducove tow new cuon, tonsbenee ie Sear oats How did new customary rules and institutions arise despite the ortho- dor psioor tint» pacee conta ele seas emt ‘moral imperatives” “to obey the moral law” CLASSICAL MINDU LAW sinful? Lingat shows that most commentators used creatively the doctrine of good custom to legitimate whole bodies of customary rules existent in different regions, Moreover, the royal duties extended to the preservation of customs, conventions and usages, not merely of the people in a conquered territory but also with respect to groups of fown subjects. The king is advised that dharma can “only prosper in order" : if, therefore, abrogetion of custom. contrary to dharma, is likely to cause disorder, wisdom requires comtinuance of such custom (ibid., 199-200; 224-32). “Lingat concedes that the rule of dharma thus did not become a juridi- cal rule until “it entered into behaviour and was accepted by the population as a customary rule” (ibid., 202). But he maintains that this “admitted predominance” of custom did not render the sastric roles any the less authoritative, ‘The sastric rules provided the framework for juristic activity : jursticactivity, in turn, provided the framework for ‘more precise articulation, adoption and limitation of the rules of custom. Juristic activity put custom ia its own place as it were. A customary rale in contradiction with dharma “is not capable of extension”: the unorthodox rule of custom has no chance of extending its domain.” Lingat insists ‘The rule of dharma has an unlimited power of radiation. Its offers itself as model to every group. It fills gaps in custom and insinu- ales itself into the customary structure. And once itis established there it is fixed thereafter; itis and remains dharma, the group's law. (bid, 203) Lingat concludes by saying that the crucial difference between the ‘Western legal system and the classical Hindu legal system, is that while the former are founded upon the notion of legality, the latter rests upon the notion of authority. In the former “the primacy belongs to the positive law and in particular to the statute”, the other “sources, by no ‘means inconsiderable are only subsidiary to it” : whereas in the Hindu classical law the sasiric precepts were seen to be law “in the sense that the word is used in matural sciences, a law which rules buman acitvity.”| ‘To what extent can we say with Lingat that the classical Hindu law based itself upon the notion of authority 2s distinct from the notion of legality? According to Lingat, the Hindu king had no true legislative power, the power to make ordinances “on his own intitiative and pleasure.” This can be seen from the fact that the “royal legislation ‘which is foreign to dharma remains largely unknown to Us" (ibid, 231). Largety but not wholly : for, Lingat does recognize some instances (in uth India) of a number of royal ordinances which clearly constitute infractions” of sastric rules (Ibid 227; see also Derrett, 1968 :75-97). ‘This, however, does not lead him to the conclusion that the king must3 SOCIOLOGY OF LAW subjects.” Lingat even suggests (here following Yajnavalkya) that even 2 torin of ews, may well be persuasive. But would historians of relats to Lingat his own criticism of the classical commentators like them, he too pays very litle attention to Arshasastra. The later contains at any rate normatively, the science of positive law, ° support the idea that legality (in the sense here used) was the basis the ‘rise of nation states and of legal positiviem, is the conse notion, whether it be “legaliy" or any other ? (ef, Jackson, 1975 : 4) 2 LAW AND SOCIAL CHANGE: THE COLONIAL EXPERIENCE ‘High-Culture’ Law and Social Mobiliy “The relation between custom and dharma, between people's law and state Jaw, underwent fundamental change during the colonial period. Both administrative exigencies and high colonial policy made non-interference with religiously based law a desideratum. But such a policy could not immunize the existing laws from fundamental change, especially when colonial authority had to ereate a netional legal system for the govern- ance of the country. Such a system, naturally, ‘affected the balance between divergent indigenous legal traditions” (Rudolph & Rudolph, 1967: 269). The story of how those changes cecurred has been meticu- ously told by many, but perhaps most authoritatively by Duncan Derrett (1968 : 225-320 ; see also Rudolph & Rudolph, 1967 ; Jain, 1966 ; Galan- ter, 1964). It should suffice here to stress briefly a few distinctive aspects of the transition. ‘During the intial period of administration, dual. system of courts were established with jurisdiction over ll matters—eivil, criminal and commer- cial. The Presidency town courts included royally established Supreme Courts, with English judges and lawyers ; the mofussil (or “back-country’) courts included suder (chief) courts, manned by judges drawn from the civil service and had Indian pleaders. ‘There was “ess formal procedure and less English law” in these ‘back-country’ courts (Galanter, 1964; Jain, 1966: 81-192). ‘The applicable law also varied. Noteworthy for2 SOCIOLOGY OF LAW ‘our purposes is Section 23 of Warren Hastings’ Judicial Plan of 1772: 4m sults regarding inheritance, marcag:, caste and other religious Gane and institutions, the laws those of the Shashter with regaed so Sfenioes wil be invariably adhered to ; and on all such oceeone Meant of Brahmins shall respectively attend the Courts to sxmeecd sregist and they shall sign the report and assist in passing the aoeecs Regulation TV’ of 1793 conctetized the Hastings plan be specifically, Hovating to the governance by Hindu and Muslim law matter rare aE rascorssion, inheritance, marrage, caste and all seligious usages acd institutions.” These regulatios AIL matters “arising ut of succession to lands, rents, and all matters of contract sed dealing betreen party and party” were fo be determined by teference ta see ust the ans of Maslims end Hindus, but by reference to usages elon, on Tieoanition of custom was extended in Punjab, Madras, Central, Prat JOT Tg PANS Of British India (Kane, 1950: 42-43, Mahmeos, 1977 : 10-18). But how, practically speaking, was this to be done ? Sit Henry Maine's memorable words, “vast saps and Sutsantive Law of India.” The colonial admiaisrators cought help from the religious cognosceati: pundits, learned in Hind Law ay Tra er iaslim dvines, were associated with the courts as experi fag docete 864. Im adcition, they commissioned, and sometimes produce Sigests and compilations of sasiric laws: the fist such attempt being te Teno eleven Pundits who worked for two years 10 produce ia 1773 ¢ digest, which was later published in authentic Enslish version ax Cost af Gentoo Laws in 1776. These were followed bs compilations, digests, and Weatises by (or under the sponsorship of) English scholar aden. Fe 1960 ee, Col*brook and others (see Derrett, 1968: 242-69; Jain, 1966 : 701-70}, Jn this phase, which Mare Galanter following Max Weber, calls. the _zPropriation ‘ofthe law”, a most distinctive resale, althoveh probably the Amatedy aS achieved, This was the creation of what Derett call jhe Anglo-Hindu law or the Rudolphs call the cosmopolitan, high-ealans scholarship and through the association of pundits with courts, was elevated above the customary ee aN, measures were taken by, and since, Hastings fo ene Be aha at W3S assumed that the indigenous Hindu law ‘was to be focwa Heit Sastre texts. Even in cases involving topics not listed a nee Gitection, justice, equity and good conscience, rather tho indigenous Gems Nete to be applied (Derrett 1968 + 289.306). The choice nes Perhaps ineluctable : if the government had “backed the customary lew Jnstead of sasiic aw literally hundreds of different systems of customary There were, in nterspaces in the 13 ‘Tit COLONIAL. EXPERIENCE ould hve emerged (317 The el as “he sora oe Sci alco, ee om tc a se iy i pa of tow eso 2 alien’ procedures and alien institutions. Just as the written texts of Jed to Anglicization of Hindu Law, so did the neglect of custom lead to othe conmoniay burden of pot eutom to boa suns of ew aut Se prved be nmemoril oon nfm varble- comin cle pub pony" Kane 190 £0, Aho aa ed oy Sue, ese sequent ane obeccmt teeta) poet af Sse Simca Whenrer custom ns Jucly coped Ret ha tne “Prom ody of orale pee and precedent, set tion of village notables or elders, it becomes a body of fixed law to be consicd by a potesonl cout. fudeal enforcement of cron sect pri cat te ig ta euborton ofthc thor sme ine Ina aI genes hens nw addin sng anal el facut (Roda Rudoph 967) By nghettre lw he Ruste mee Xora, for Moin) expounded ote Eagisn os oy seg ot Pend ras pn ar fou ed Gees De 1865 athe "expen the pple aw ete pessoa (ig 20), The “opr” “estoy ew wae fo etn ea was “‘purocil” ices he greats Becmiae lew ne eames Polta” and "nfo tse‘ rea eerie ween ta Sevloped though intrpettn by gl sue Bitte mocemiy ele high casa ioc ea tutte norms Bath pre! easton and cosmoplian hgeatrs og reece ad rte “Tor mot pr lus fat ere aoe16 SOCIOLOGY OF LAW fare attributes of amodern legal system, the Rudolphs’ observations that the high-culture law served as a “vehicle of modernization” must be accepted. But this acceptance must stand limited in view of the fact that for any legal system in which the decisional law of courts plays a major role, overall judgments about certsinty, consistency and ‘uniformity, even when most circumspectly made are irmpossible to verify. This is so not just because these attributes are hard to define and measure both over time-scale and over rather heterogencous case- ‘materials but also because ‘certainty-consistency-uniformity are matters of degree, matters of more or less, rather than all or nothing. Pockets fr sectors Within a legal order are more amenable to stch judgments than a legal order considered as a whole. Nor are the abovernentioned attribates the sole or most salient attri- utes of modern legal orders generally. In fact, it might be more correct to say that a quest for (rather than attainment of) certainty, consistency and uniformity, and accessibility characterize modem legal systems, ‘Legal growth and legal chango arc very often accompanied by, and require, departures from certainty, consistency and uniformity. ‘The high- ceulture law served as an agent of modernization just as much (if not more) because the sastrie texts were open to divergent and conflicting interpretations: because the integrity of its authoritative exponents (the pundits) was often in doubt; because many sasirfe norms were impracti- ‘cable to follow or were obsolete: and because the courts did not (as indeed they could not always) adhere self-defeatingly to the canon that previous decisions ought to be followed (Derrett, 1968 : 294-315). Indeed, when wwe thus look at the system of ease law microscopically, the acute contrast drawn between custom and the superior high-cutture Iam, in terms of consistency, sceessibility, uniformity and certainty, assuredly ‘becomes faint. ‘Another glimpse into the Rudolphs’ reasons regarding the Brahminic law as a modernizing agent is nravided by the reiteration of the view that the high-cultare law flourished at the expense of local custom. Legal processes were coloured by Sanskritist perspective not just by the adoption of Brahminic Jaw on the part of the British, and this re- inforceed its original authority. Not to he overlooked was the fact. that the “lower level judges and enrly incumbents of the modern Tegal profes- sion were dravin from the upper castes” (Rudolph and Rudolph. 1967 274). Thus, the Rudolphs suggest, though not quite explicitly. that the Brahminization of law generally helped the processes of Sanskritizetion in the area of social mobitity If indeed Brahminization of the law affected processes of social mo- Dility (“lower caste assimilation to higher caste norms”) then this remains to be demerstreted. True, es the Rvéely ts peint cut, the courts determined egal relations among groups by reference to the higher culture sastric} | } {THE COLONIAL EXPERIENCE 7 texts providing the four-yarna model or even simple twice-borm model whereas in reality there was ‘‘a multitude of caste groups.” But did What the courts say in cases coming before them affect this reality in any signifeant way ? This question is too important to be ignored; but to answer it will require the compilation of social profiles of parties who brought their disputes before the courts during the ere of culture law. In considering the question whether the introduction of English system inereased litigiousness and whether this contributed to mobility, the Rudolpts favour an afiemative answer on the ground that increase in litigation “may also mean that the litigants are searching for fa means to escape the disabilities and coercions of traditional village Society” and that such increase “rellects. .. an effort to unravel them- selves from the traditional moral and social order” (id, 267). But the fevidence is too slender and varied to tranform this statoment from a hypothesis into a historical conclusion. Ifina few cases Anglo-Hindu law did in fact provide leverage for social mobility, in other cases it also thwarted it as demonstrated by the refusal of the courts, including the Privy Council, to permit tomple entry to the Shanans, which Rudolphs elaborately note and eriticize (ibid, 42-4), Certainly, more than social biographies of disputants in typical and wtrategic disputesituations will be necessary to sustain the above hypotheses. It.wll also be necessary to describe, analyse and evaluate the impact of the judgments of courts upon the “multitude of caste groups.” For, fidelity to prescriptions of high-culture law ia court, decisions is one thing : adherence, in belief and behaviour, by persons and groups affected by these prescriptions through the courts is another. Perhaps, pioneering legal sociologist Eugen Ehrlic’s distinction between “egal norms” which are constitutive of social groups and “norms for unfavourable discrimination against the moneylender while i protected the landlord in his prerogatives over the cultivators. (ibid, 19394). ‘The zamindars themselves, morcover, were in the tight grip of the creditors or moneylenders, chiefly due to the fact that the Government “continued to collect its revenue on the basis of the theoretical disti- bation of assets” regardless of “the iaroads of regular, let alone irregular, charges on zaminéars’ incomes” (tid, 199), Theoretically, the zamindars* predicament was aggravated by what Whitcombe calls “the modernization of the legal machinery.” By this latter notion she refers not merely to the ‘massive codification of substantive and procedural law (leaving for’ the zmost part the personal law of the Hindus and Muslims untouched) and the creation of evil courts with overlapping jurisdiction with the revenue courts, but also more pointedly to the law relating to debt, alienation and transfer of proprictary interests in land. Alienation and transfer came about initially through provision concerning mortgaging of land and the exercise of the powers of eminent domain, together with the governmental power of compulsory sale of land in’ case of default in revenue payments The principle of compulsory sale in default of revenue payments was, importantly, extended in 1859 to such sale for satisfaction of debt by civilian moneylenders, thus adding “a further dimension of the long standing antagonism between zamindar and moneylender” (Wid, 217). ‘By this process, Whitcombe notes, “the zamindar’s tile--already) liable to pass to Goveroment” and “to the auetion purchaser at revenue sales”, could. now pass “in eddition to his ereditor, who might in turn be the auction purchaser” (id., 201). The repeal of the usury laws in 1855, and the erosion of security entailed in the differing judicial approaches to the Hindu law rule of Dandypat, “whieh prevented the ereditor from s interest at any one time sum more than equal to the ibid, 219) conteibuted further to the vulnerability of zamin. das vis-avis the moneylenders Whitcombe’s absorbing account of the actual operation of the transfer Jasyields some evidence of a “considerable” transfer of zamindar titles, But she confesses that such a conclusion must remain impressionistic, given “the notorious unreliability of statistics.” On the other hand, she documents a number of processes which support the view that “ph sical Aispossession’” did not result from “the incessant activity of the ‘courts (ibid, 27. The complex Hindu joint-family law worked ina number of ‘ways to obstruct “the smooth process of the twansfer law.” And. very ‘often the ereditorpurchaser allowed, after sale, some land to the ex. ramindar and his family. Statutes iq 1873 conferred upon the e- {ME COLONIAL EXPERIENCE 35 proprietary zamindars an “equitable right of occupancy” in designated lands. Compromise in order to avoid a sale or after a sale resulted in augmentation of “concurrent interests in. the same soil.” Moreover, the complexity of variable interests possessed. by the Hindu jointfamily in land beset attempts to physically acquire or realize the interests trans- ferred by the legal processes. Finally, the “local means of coercion" tcaditionally available to zamindars, who were legally dsentitled to their land, prevented effective accomplishment of the salient objectives of the transfer laws. ‘The overall insecurity (thus arising) of the purchaser of the land was deepened by the anticlimactie interventionist polices adopted by the Government favouring the insolvent zamindars, The revenue authorities ploceeded to restore “confiseated lands” to zamindars who were tempor- arily deprived of them. In addition to such restoration after sale, Section 244 of the Civil Procedure Code 1859 empowered the Collector “to intervene in the course of compulsory sale and to seck to compromise the transaction between the parties by temporary alienations” with a view to preventing estates from insolvency and to “preserve some security for continued revenue payments.” Finally, to prevent political instability threatened by the plight of zamindars and loss of revenue, the Court of Wards procedures. “functioned busily to extricate tie more promising of encumbered estates from the vicious cirele of debt and transfer litigation, appointing Government managers to bring them back to solvency, with a Tittle experimentation with sgricultural improvements on the side. as befited a benevolent proprietor” (bid., 217-33). Economic modernization called for abolition of encumbran ces cn land and of insolvent, unproductive land proprietorship. giving place 10 “large-scale, viable economic units” in the bands of “relatively few efficient capitalists” (bid., 202). Whitcombe concludes ‘This logical extension of the working of the mode:nized legal machin- exy in co-ordination with economic pressures should have ideally resulted in the disintegration of the structure of superior rights over lend accompanied by the disposal of proprietors from their seats of local power. This preparing of the way fora ‘capitalistic succession” implied in fact an upheaval of revolutionary dimensions, and the collapse ofthat stratum of society upon which the government depen ded for its maintenance. E, Whitcombe (1972 : 203) Here we are confronted with a paradoxical conclusion, together with elements of a plausible explanation of it. The conclusion is clear and compelling : the legal system modelled and based upon that of the ad vanced capitalistic system of England, and adminis‘ered ina large measure by Englishmen, failed to lend sufficient leverage and support for the’ growth of capitalistic production relations in Indian agriculture. ‘This principal conclusion has the support of the view attributed to Ey38 socioLocy oF Law Mandel (1972) that “the legal system and property relations introduced by the British in India actually hindered the development of capitalistic production relations in agriculvure, given the context of colonialism” (Utsa Patnaik, 1972 : A 146). ‘Whitcombe's analysis yields two kinds of explanations for this failure of ‘the legal system. First, as already indicated, she points to the natural reluctance of the colonial goveroment to initiate and channel large-scale, revolutionary changes in land-ownership patterns, and through it in the Social structure. This reluctance is ‘natural’ only on the assumption (for which there is sufficient basis) that the Goverament’s own viability depended in large measure on the combined control over revenue exac- tions through zamindars and access to their political power base. The second explanation lies, for Whitcombe, in the overlapping juris- ictions of the civil and revenue courts whieh maximized all procedural and substantive complexities to the benefit of the litigious zamindars : Appeals, earlier exhausted in revenue courts, where the commissioner of each division was the final authority, could then be transferred to the civil courts in the form of a newly instituted suit involving, with perhaps minor mutations, the same parties. Within both revenue and civil jurisdictions, decisions on points of law might differ from court to court and bench to bench, Whitcombe (1972 : 18) Occasionally, statutory provisions conflicted with personal law ““essidu- ously administered under civil jurisdiction.” And the “meeting points of the law with local polities added fuel to the flames of litigiousness.”” In fect, the litigious. zamindar was the “unacknowledged ally” of the Government since in combating with his competitors who sought to replace him “he acted in the political interests of Government” (ibid., 204). The resultant casualities were the cultivating populace, concepts of “economic development”, and modernized legal machinery which sulfer- red ‘gross distortions” in the process. ‘These distinct explanations are indeed persuasive, perhaps too much so. Generalizations at a high level concerning “legal system” and ‘modernized legal machinery" affecting the growth of capitalistic relations of agricul- tural production are worthwhile (on the present view) only if they are fully substantiated or if they direct attention to problem-areas hitherto insufficiently explored. In the present state of knowledge, Whiteombe’s or Mande''s generalizations are worthwhile only in the second sense. Even 0, they guide us rather uncertainly to the main problem areas. ‘There is, first, the question of what one means by “capitalism” (See, e.g., the recent dialogue in this context between Patnaik, 1972 and Chattopadhaya, 1972: A-145 and A-39 respectively). Secondly, the precise ambit of expressions such 2s ‘modernized legal machinery” ot “legal system” hhaye to be fixed. Thirdly, hypothetical linkages between the two notions, ‘thus clarified, have fo be suggested. ‘THE COLONIAL EXPERIENCE 47 Let us look here only at the second aspect, The reference to “legal sys+ tem” or“modersized legal machinery” 1s uoalyticaly, unproductive heewse these notions are socompassing. or labal, upd. shelter. within them 8 varity of references to. inconsistent and even contradictory norms, technigues, and institutional methods for the management of con- fct and aininment of developmentl goals. This becomes abundantly lear when one recils n the pretent context the repeal of te usty lame on die one hand and the inodection of the messues for sircunealing the consequences of the compulsory sale of land for satisfaction of debt Tabty onthe other. “The selevant nsues conostoing law's ole in devel- opment become pointedly clear when we raise sub-systemic.rathet han Rolie type questions From such perspective, one has 0 raise ape related (and hopefully much les intractable) questions sush as the folloving © (@) Did the seulement processes under sevenus. laws combined with the repeal ofthe usury laws eeate a disincentive for investinent of su plus monies nto improvement of agrcitural technology and enhanes- Front of agricultural productivity? (®) Wes there a lack of fe" between the ‘newly introduced English legal conceptions of propery relations and the actualy existing relations af appropristion of rps capital? there was non-corespondence, what was the erent of and.‘wbat wore the efests of the on the ‘climate’ for productive investment in agriculre ? (cf. Chattopadhyaya, 12! A 39) (©) Towhat extent te dlatory ligation proces and the variation in the detais of the substantive. law (both inte civil and revenue law sectors) allt ‘cline forsuehinvesiment “And to what extent the monetary and socal cost of ligation aggravate the steady parlou. si. ation ofthe highly indebted “cultivator” and. the lliiows zamindar? How did overrecoure to courts afect the fnaciel resoures of the mmonevlenders 2 ven us we atend closely to Whitcombe's analysis of the “gros tortions" of the “moderaized legal machinery”, we ought to remember thatthe “modernized legal eye, ike the frigation systems, represents a devslopmenal measore (socal structural change) of great siguieance ver tmedimension. The massive, codifeation of procedural, ei Commercial and criminal law, together with the reorganization ofthe jodicia system for" Brtsh India during. the period 1859-1882, can be Teparded as.an atempt to conslidats and extend atebutes of “legalism” in a structural sense (Trut 1972). Tes equally interesting fo transpose. with perlaps a degre of poetic Vienee) Weber's conclusions concerning the relation between legalism and fiuie anloriy srucme, Max Weber seemed. that while legal “guaranteed formal equilily, it also legtigatcd lass" domination”ed socioLooy oF Law Cre, 1972 + 59. Weber miniained bat the stem of forma Justice “legalizes” the unequal distribution of economic power by srateig mani fceom for the nreted me i eg he formal egal intrest” Weber 1968-13). Intisity, Lsten Whitcombe characterization ofthe tigow auinder asthe Canerarer leged ally” ofthe Govereat acting to pret hina by nea Political interests of the Government, provides just an addtional instance Of Weber’ seminal ist, even it ina sont aot legal os aoc sis of correlations between “legalism” and “capitalism” - Ingeds inthis very ne md, ove reaches a salng hve, pe bape hee os ot ating ene Theta he nd ston hee diused empha the ned fo wus concerns psa analytical and socolgial Inkages between Igalam end precepts mode rps of detopnet. Sch specstion need eke the ssmpton hatte atution ght tobe charade capitalistic. Such speculation is furthermore, permissible is prostabny {si in view of ones studious aturencan of Weber ecko oe, SFist apa Cae, a7 a terms of rations Seveen aw aad decepmet, number of fr ther intresting thems and proems ones oben ea ee ee the idendiation af development goal fate a a ane for NWP under the Bruih Ral nd ven ot crenata no ea o sie mater, deste Wnicomnes nhene tales Desafely id rater Sbviou te Denes a tes Al that can tine wat on emblvlent moderate, Oa en eee of the sezaantetcrmea fo mninie veal onthe re alto be consonant wi the matteo an sen eememEn two ‘goals’ were concurrently pursued, but they did not coincide ‘except on one dfion of tiem wich would ese sense cree TE first merely with colonial aggrandizement (through increased land revente Tomet ht cxpones of ie Eps iene adn ere Sedahion would te ovine in Weight of ate eee Wht sds, prcend aes eee a cm Be tha ab muy, insofar as agli fete one pina in its attainment. The pre-existing system of private rights in land. pro- tides avery ruciacontex impeding ne dearc ec es Indes goninmentnberied = voy ese creep Tie Brit ‘most of which were hereditary and subject to partition process under the cusiomary Hinds Lav. The stem o ranean eis ease Daleks covesponied acy to he Pater are ower. The comply ofinres in nd & nena hae thebacknoy dit whee “whist rights to mane COS anne eee wre bell ya mre 282 zamindars sage ot oe ‘Tie COLONIAL EXPERIENCE 40 329,855 acres had no ess than 11,574 recorded shares” (Whitcombe, 1972: 143). No wonder that the processes of revenue ‘settlement’ were attended by a large aumber of suits in revenue courts, giving some subs- tance to the oft-repeated hypothesis of the Indian penchant for litigation and abuse of the judicial process (see for statistics on litigation, ibid., 213-14), Additional complexities in this regard arose from lack of reliable record of tights, which still continues to frustrate agrarian reform measures. ‘Such was a part of the operative contest of development, We have to ‘ask next as to how, if at all, was the law used as a_ resource for develop- ‘ment, And here the legal picture is as confusing as the policies underly- ing the law are ambivalent, Certainly, the alienation and transfer laws, ‘and provisions of temporary governmental management of certain estates aare measures facilitating the developmental (or directed change) process. But, as we have sten, the alienation and transfer laws (together with the basic principle of compulsory sale of indebted properties) were to operate in a severely inhibiting context, so inhibiting in fact that this body of law served primarily to deepen the multi-layered system of tenurial interests in agricultural land. ‘The repeal of the usury laws in 1855 presents a fascinating problem of characterization of the role of law in development. On the contemporary elite view, this legislation was indeed a part and parcel of ‘legal modern ization.” ‘Statutory controls on interest rates interfered with freedom of ‘contract and efficient use of capital. If such an interference was ill-suited to functioning of capitalistic system in England, it must be similarly fan obstacle deserving elimination in colonial Indis, So, in contempo- raneous terms, the repeal law was both a symbolic and instrumental measure (Gusfeld, 1967). It was symbolic in the sense that it sought ‘o ‘persuade those with surplus money to invest it, as profitably as they can, in agricultural development. And the repeal law was instrumental ip the sense that such investment was legitimated by the values, norms and actual operation of the legal process. ‘The close connection between the repeal of usury laws and the indebt- edness is quite obvious. But the further linkage between the repeal and the vieissitades of the alienation and transfer laws may not be quite so ‘obvious. To make it so, we need a hypothesis suggesting that the repeal aw was an independent variable in relation to the “breakdown” of alien- ation and transfer laws. To substantiate this hypothesis we will need detailed investigation, focussing specially on (a) the efficacy (both sym- bolic and instramental) of the repealed usury laws, (b) the supplemen- tary, teinforcive elect of the Hindu law rule of damidupar, (c) the actual differences in the behaviour of the creditors in relation to interest rates, after the repeal and (d) the component of usurious interest in. the overall debt liabilities leading to compulsory sale under the relevant40 S0ctoLocy OF LAW legal provisions. Reverting to the principal theme, low is one to characte of usury laws ? Clearly, it represented develo} porary policy-makers. For the contemporary eities, the repeal low rieot fied an extension of an English principle toa miicu which did soe Tequire it. To us, from the vantage point of time and distance, he repeal Savours of a distinctively anti-developmental use of the law as a tesornen, Was the repeal a developmental measure which miscarried in the tora context or was ita dysfunctional measure from the very start, which could fot but miscarry ? When we talk about development ats macro-levsl, ‘such problems perhaps, do not arise. But at the middle-level or micro. level they are dauntingly real, and clamour for an answer, Attention to such problemsis a pre-requisite fr the identification ofthe bases of judge, ‘ment, appraisal or evaluation of phases of development achieverneny, The repeal, alicnation and transfer laws can also be used as providing illustrations of the role of the legal process in mutation, deflection a oF abandonment of developmental goals, The use of the legal technique for the implementation of social decisions eatails definition, interpretation and contention. ‘These (generally speaking) enable policy-makers to oer the unfolding of policies sharply and clearly. And this in turn influences {heit pursuit of goals. Thus, for example, the ful range of consequenese resulting from ‘the extension of compulsory sale principle to private Cag istinet from governmental) creditors may not have been perceived ag clearly at the time of legislating the principle. But litigation and court decisions concretized ths high political costs involved (in the form, we recall, of the excessive vulnerabilities of zemindars, an apperecived main- stay of political support for the colonial regime), and led to remedial ‘measures, whether political or legal (e.g., restoration of forfeited lands). James Willard Hurst (1960) has told the story of this function of the legal process ia terms of “sharpening” of perception, arising from the play of the general and particular in law. Certainly this function of the legal process is of utmost importance to the understanding of mutations fof developmental goals espoused and pursued by any body of decision-makers, ize the repeal ypmiental measure for eontem= Law and Social Change : Social ‘Reform’ through the Law in Colonial India ‘Compared with the substantial attention given by some social and econ: ‘omic historians to the role of legal processes and institutions, we find Yery few studies focussing on law as an instrument for ushering social eform in colonial India. While. the colonial government had generally adopted a “hands off” policy in the area of personal law, it made some impressive attempts to deal with some of the intransigent’ features of the Hindu social organization like the sat child marriage and female. infan, "THE COLONIAL EXPERIENCE a ticide. The underlying impulses, forces and ideotogies as well as the ‘administrative strategies for legal action varied from one area to another ; the two interesting contrasts are provided by sati abolition and the cradi- cation of female infanticide. A detailed study of why and how legal pro cesses and institutions were employed to initiate and implement social reform in colonial India is bound to yield rich harvest of insights in the realm of planned social change through the law. This isa task which still awaits sociological and juristie labours. But there exist several accounts of movements for social reform in colonial India. Of these, the work by S, Natarajan (1959) and CH. Helmsath (1964) provide richly detaled overviews of the principal ‘measure of social reform through the law in colonial India. They examine factors which favoured, and impeded, planned social reform through Jegal_ measures. They identify points at which the traditional sad nationalist ideologies diverged and highlight the roles played by religious and social movements in shaping public opinion on the relevant iseues, They also reflect the dialogue between colonial ideologues and adminis, trators with the indigenous social entrepreneurs dnd opinionists. When read with notable works by Ravinder Kumar (1968), B.N. Ganguly (1975) ‘and Ganesh Prashad (1976), these two works provide us with a greater understanding in concrete context of national movements and social reforms of the growth of nationalist ideology, which was an amalgam of many components Heimsath and Natarajan also provide us with a more detailed grasp of the leading social reformers and movements. ‘Those who till oday speak. alibly about relation between law and public opinion have much to lesea from their accouuts. Bot both in addition provide detaited narration of the methods used by reformist movements and. thet leaders. A principal and quite effective method was tat of submiting petitions to the Legista- tive Council or to the government. Petitions provided scope for reasoned argumentation on both sides for proposals of social reform: they also facilitated public discussion. The intensity of elite support, or opposition, ‘was also often measured by the battle of petitions. The second method involved mobilization of the public opinion through wideranging use oF media, public discussions and open controversies. This gave considerable scope for the sustenance and growth of a. band of social entrepreneurs, One telling example of this process is the debate between Tilak and Ranade on the Age of Consent Bill. This debate beiween two stalwnane had considerable echocs allround. In other words, small though they were in number and not always effective in leadership or performance, they spared no effort at persuading the administration as well as in ere, ating and mobilizing favourable public opinion. Heimsath’s description rescues for us the flavour of the vibrant atmosphere, “One Caleutta tewe,a SOCIOLOGY OF Lave paper...was prosecuted for seditious writing in connection with the Bill. Brahmos attacked Bengali pandits ; Arya Samajsts quarrelled with the Benaras orthodoxy ; scholar fought scholar in western India” (Heimsath, 1964 : 160). Such serious intellectual interest in social reform throug’ law has not characterized the recent history of Independent India ‘The patter of social reform under the auspices of the law is hard to discern. Almost every legislation had a long gestation period. ‘This ‘may indicate the wariness of a colonial power to intrude in sensitive areas of group morality. 1€ also. betokens the strength of resistance, both from the group of administrators and social groups disfavouring the change, In terms of implementation, the pattern varies from the extremely throughgoing and efficient administration of the Infanticide Act to the lackadaisical implementation in areas like the widow remarriage of sat Undoubtedly, the nature of the legislation and the target values, jour and groups explain partly this variation, On the other hand, the infanticide administration Law indicates that there were occasions when the colonial power possessed both of political and administrative will ‘to transcend all obsticles, and meet all resistance, in the enforcement of a legal policy. Lalita Panigrahi's study (1972) of the law and administration of the Infanticide Act is among the best works available to us concerning the role of law in social change and reform. The Act of 1870 was a “measure of gigantic proportions, which touched directly the private lives of individuals.” ‘The Act “did not aim at revolutionizing the Hindu society nor did it contemplate shaking it to its roots.” Yet it envisaged ‘a programme of social regeneration and incidentally it helped in laying the foundations of a newer and healthier Hindu society in some pparts of the North-Western Provinces” (Panigrahi, 1972 : 158), Panigrahi gives a very detailed account of the various stages in io plementation of the law. The task of locating the practiee of infanticide among groups was of great complexity, given the state of social statistics at that period. After two years of efforts it was decided that if “a clan having a juvenile population of over 25% had less than “40% of girls among children" the whole group had to be declared guilty uader the Act. The onus of proof of innocence was transferred to the individual families. Powers to exempt families in cases where they were able to prove that they did not practise infanticide were given to the adminis. tration. Detailed registers of populations, pregnancies, births and deaths were maintained under the Act. Periodic steps were taken to refine the statistical measures under which the presumption of guilt arose for certain groups and appropriate classifieations were made, ‘The implementation of the Act displayed very distinctive features in terms of management of sanctions. Firstly, ia proclaimed villages the strength of police and chowkidars was increased; and the expenses THE COLONIAL EXPERIENCE 43 of additional. manpower were to be recovered by a levy from the villages. Secondly, the very act of proclaiming groups and clans as criminal hed symbotie sanctioning impacts. Social sanctions were. thus co-opted to the arsenal of legal sanctions. Thirdly, liabilities were ime posed on midwives and chowkidars, the two functionaries most vitally connected with the village groups. They were conspicuously punished for defaults: this enbanced the coercive and persuasive impact of the law in the minds of target populations. Fourthly, post-mortems of deceased Jemale children were compulsory; this meant the irksome and huswiliating Procedure whereby parents and relatives had to earry dead children to long distances for post-mortem examination. Fifthly, “a vigilant watch ‘was kept on the movements of pregnant women.” Very severe punish- ‘ments—transportation for life and ten years jail—were imposed in cases where there was reasonable proof that the female child was killed on birth during these movements. Sixth, prosecutions and convictions under the Act were vigorously purused. Seventhly, at the same time incentives in the shape of exemptions to individual families were also provided. A detailed administrative procedurs was prescribed in this bebalf. This blend of positive end negative sanctions, coupled with vigilant administration, led to @ substantial decline in the practice of female infanticide. But the rate of change, obviously, varied with specific _Btoups of people and the relative strength and tenacity of custom in each affected group. Certain latent effects of the Act also emerged to the fore. One was transfer of female children from one place to another in order to beat’ the census. The other latent effect was “deferred” infanticide through indifference during infaney and growth ; the lack of health care achieved for some people what infanticide otherwise achieved for them. Thirdly, at least for the time being, excess of gir] population resulted in the “growth of immoral practices” such as sale and traffic in girls as well as increase in crimes like kidnapping. Panigrahi’s study highlights the importance of wise management of sanetions in a coercive programme of social change through the law. She also underscores the vital importance of addressing actions not just 10 the victim groups whose behaviour and attitude are sought to be changed but also of the change-managers or those who have to actually implement the law. The study also indicates that often broadly iliberal means may hhave to be used to achieve liberal and human values. Massive intrusion by the state in the area of family life, violation of honour, privacy and ignity of individuals and families concerned had to be perpetuated for a period of time in order to get the message home. The study further indicates how constant experimentation in legal rules arising from the needs made manifest by experience became an accepted routine. In other words, in the programme of action there was room for feedback and4 SOCIOLOGY OF LAW ‘monitoring and where necessary for even constant innovation. The law ‘tnd administration were consciously thought out exercises not just in achicving desired change but also in acquiring self-conscious social learn ing for change agents and managers as well. ‘Most of these aspects remain important both for planning and evalu- ating planned social change through the law in modern India. Panigrahi's study is of crucial significance not just for historical understanding of socioloy of law in colonial India but also for ways in which the law could innovatively and imaginatively used to deal with obstinate social real- ies. The contemporary decision-maker and sociologist of law in India ‘has much to learn from a close examination of this, and related experi ences of planned social change, in relation to. intransigent-looking Problem areas such as untouehability, tribal exploitation, and low status ‘of women (particularly in case of matrimonial cruelty and bride burning ‘connected with dowry; see Verghese, 1980). 3 LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA The Travails of Law as an Instrument of Directed Social Change ‘The Story of Land Reform Legislation in Contemporary India. Introduction [At first sight, modern India offers sharp contrasts and discontinuities in the agrarian realm to the conditions in late nineteenth century United Provinces. Economic development and just redistribution of wealth and community resources are avowed and conscious goals pursued by the ‘modernizing’ poltical-bureaucratic elite of Independent India. Significant attempts are made at planned economic development—India is now on the eve of its Seventh Five Year Plan. The Planning Commissions of India and of its constituent states vigorously formulate developmental foals and self-critically examine implementational problems. The pursuit ‘of these goals occurs within the constitutional framework, which requires respect for the federal structure of the Republic and for the constitution ally guaranteed Bill of Rights. Governmental action is subject to con- straints of legality. And an independent judiciary (which ean be activated with relative ease by the resourceful) has so far, rightly insisted on play- ing its role as « co-ordinate branch of government, Plaoned economic development has to occur concurrently with institutionalization of demo- cratic processes. India's contemporary condition is unique in the real sense (Baxi, 1957). ‘Yet, basie continuities of agrarian conditions do persist. Close linkages, ‘of a nature not dissimilar to those of colonial India, persist in modern India between social stratification and agrarian hierarchy (Betclle, 1972: 23-26). Proliferation of intermediaries continues despite abolition of some46 SC OLOGY OF LAW classes of them. Laws against usurious interest abound but these have not noticeably ameliorated the situation of peasant indebtedness (Rom, rurti, 1955: 44-45; Thorner & Thornér, 1962 21 7). No doubs elsbon ate laws exist regulating both the activites of monoylenders and the Scope of indebtedness relation, the latter inthe form of debt relict lave ‘A comprehensive study of the’ operation of such laws await the labours of Elizabeth Whitcombe (the projected second and third volumes of her trilogy). The revenue laws continue to vary from state to state, and pore hhaps even within the state units, as before, And the multilayered “systow? of proprictary interests in land, compounded by the intimidating absence of reliable tenaney records, continues to dominate the legal landscape of agrarian development. Aspirationally the continuities in agrarian conditions were to be Tigui- dated throvgh large-scale land reform prowrammes. “These. brosily speaking, aimed at () the abolition of intermediaries, Gi} provision of security for apricaltural tenants, (ii) imposition of ceilings om. landhole- ings, (iv) consolidation of landholding, (v) amelioration of agricultural labour, (vi) provision of efficient rural credit and (vi debt reli measures, A considerable body of literature (ee Jha, 1971; Joshi, 1975) suggests a rowing discrepancy between the word and the deed, a record of ‘allure in implementation ofthe stated objectives of reformist (or development!) legislation. tis worthy of note that this growing body of literature is almost entirely a product of economists and sociologists; academic lawyers are conspicuously absent from research teams investigating the ‘ficacy oF Jand reform tesisation. What is worse, by ny criterion, isthe total i= Ailference inthe Indian law schools to this literature both at. graduate and postgraduate level, although thore ate some encouraging signs of efforts to redress this situation (ce: Singhvi er al, 1973: UGC. 1979). Indeed, i would be surprising if leading law libraries in India held ever afew of these works, And yet Indian constitutional lawyers contioue to devote considerable atention to the judicial handling of the compensation requirement in the constitutional Bill of Rights inthe very context of agrarian reform legislation. Jn what follows, we outline and examine the lay and specialist verdiets ofthe ‘failure’ of land reform measures Ii. generally speaking, trac that apart from the elimination of zamindari, other measures of land refers have yet to achieve their policy and economie objectives. The elimination of intermediary tenure is now “more or or less complete” and. nearly 20 million tenants have been “brought into. direct contact with the State™ (Dandekar and Rath, 1971: 189), And even with reened to zamindsri abolition it remains true (thoush ancomplimentary) to say thet while efimination of big feudal landlords by parliamentary means iso achieves rent in the fst decade of independence”, the abolition of the “the inter | | LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA. a ‘mediaries was not intended in India... to give land to those who actually till it” The beneficiaries of this measure have been identified as mem- ‘bers of the “cultivating” class and of “their higher caste families .. . who hhad been granted the rights of privileged tenants by colonial tenancy Jaws" (Myrdat, 1968: 1309-10). Indeed, it bas been basically a “reform of revenue administration rather than a measure of redistribution” (Dande- kar and Rath, 1971) Similarly, the Draft Outline of the Fourth Five Year Plan (India : Planning Commission, 1966 : 127) concedes that the principal objective of ceiling law “which is to redistribute land to the landless . .. has been largely defeated.” And a recent study under the auspices of the Government of India acknowledges that “the imposition of ceiling on agricultural holdings in India is a case of incohate policy, imperfect Iegislation and inefficient adminitstratson’ (Appu, 1971: 60). Similarly, consolidation measures have resulted in large-scale eviction of tenants: ‘and it has been acknowledged that consolidation “has often turned ‘out to be the coup de grace for the sharecropper™ (India : Planning Com= mission, 1973). Tenancy studies likewiseyield a failure report. Security of tenant requi- res legislative guarantees of tenant's occupancy and legislative restriction fon maximum rents charged by the landowners. Both these types of ‘measures are essential to attain security of the tenants (cf. Myrdal, 1968: 1324). With regard to the security of tenant occupancy, most Indian laws allow —with some restrictions—resumption of the leased land for “personal cultivation,” Despite the Second Five Year Plan's eriteria for defining the notion of “personal cultivation", stavtory definitions remain loose and flexible, enabling substantial resumption of land by landowners (Merillat, 1970:112 ; Upadhyaya, 1970 : 461-62, 358-66; for pioneering studies see Khusro, 1958: 39-53, Dandekar and Khudanpur, 1957; 26-48; Desai, 1968: 53-64). ‘The statutory definitions now on the wane also ive sufficient symbolic support to the already strong bargaining pos- ition of the landowners. ‘Voluntary’ surrenders of land by tenants also negative security of occupancy and the extant studies disclose a substantial trend towards this. Similarly, provisions restricting the rental payments to one-sixth or less of the gross produce are more honoured in breach than observance (see Dandekar and Rath, 1971: 109-13), ‘Factors’ Contributing to the Failure of Land Reform Laws “The literature is as replete with diagnoses of ‘failure’ of land reforms as itis with explanationsof these fifuees' and with future therapeutic action, “The factors responsible for ris failure can be profitably grouped as feel, administrative, ptitial, soci}, economic and. cultural. Pronouscements of lure’ to attain legislative objectives are made in the research context48 SOCIOLOGY OF LAW of regional studies, but these generalizations are extended to a national level in most officis! as well as scholarly studies. Let us now isolate those ‘factors’ briefly Legal ‘Factors’ 1. The most universally stressed group of factors comprises dlexibilites, loopholes’ and exemptions in land reform laws. 2, Dilatoriness, complexity and cost of proceedings uoder land reform Jaws furnish another group of factors generally stressed in land reform studies. Special emphasis is often placed on the ‘laws’ delays 3. More recently, the Report of the Task Force on Agrarian Relations atiributes the overall ‘failure’ of land reform measures. to the nature of, the Indian legal system. “In a society in which the entire weight of civil and criminal laws, judicial administration and precedents, administra- tive tradition and practice is thrown on the side of existing social order based on the inviolability of private property, an isolated law aimed at restructuring property relations in the rural areas lias hardly any chance of success" (India: Planniag Commission, 1973). ‘Administrative ‘Factors’ 1. The ineficiency or inadequacy of the Revenue Adi handle the complex task of implementing land reform legislation is all too often reiterated, even ifnot laid bare, by empirical studies. The ‘magnitude of the problem was appreciated, as early as in 1961, by the Planning Commission which has conceded (in the Thied Plan) that “there thas been insufficient attention to the administrative aspect of land reform.” The administration has often failed “to enlist the support and sanction of the village community in favour of effective enforcement of legal provisions” (India: Planning Commission, 1962 : 221). 2. This inefficiency or inadequacy is in turn attributed to (a) over- burdening of revenue administration which has a large number of other tasks to perform aside from overseeing and implementing land reform laws, (b) the underestimation of the need for requisite personnel at the initial stages (Dantwala and Shah, 1971: 184-96), (c) the budgetary pro- ‘lems in staff expansion, with the associated problems of timely. sanction for the staff and proper recruitment and (4) the vast amount of preparae tory work entailed in proper implementation of any reform measure. 3. Reliable and up-to-date land records are a vital pre-requisite for effective administration of land reform measures. Very often preparation of such records undertaken well before the legislation becomes operative continues concurrently with administration of the reform measures. To goute just one glaring example, the Tiller’s Day amendment to the [LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA 49 Bombay Tenancy Act passed in 1955 and proclaimed in 1957 involved the rewriting of about "84 lakhs of kharas (occupancy records) in about 28,000 villages” of the then Bombay State (including. what are now ‘Maharashtra and Gujarat). This work continued for two or three years after the proclamation of the legislation (Dantwala & Shab, 1971 : 185, 195). 4, The problem of “corruption” leading to “collusion and evasion” frustrating reformist objectives and procedures is often noted both in commissioned and scholarly publications, Social ‘Factors? 1. Gunnar Myrdal maintains that the “heterogencty or interests of the village population” isa sigaificant fuetor affecting the enactment and implementation of land reform laws. He classifies the “village” groups in terms of occupational groupings into the “landowners” (further sub- divided into “feudal”, “absentee” landowners and “owner-cutivators”, the Jatter in turn comprising “peasant landlords” and “ordinary peasants”), “privileged” tenants, shareeroppers, and labourers. He further traces the relation of occupation classification to ranking social hierarchy (based con “a pre-capitalist scale” of values steessing ownership rather than work ‘asa basis of esteem) and to the “caste systema", Each group of villages tends to have its distnetive interests anda majority of these interests militate agnins effective land reforms. To the numerous peasant landlords, tenancy reforms appear as ultimately weakening their position. They “as a group lend no support 0 the implementation of tenancy legislation and favour an admisistration that is weak or unwilling to enfore the law.” The tenant group, on the other hand, is “too heterogeneous” and divided by “caste distinctions” to “protest in a mass against evasions of the law.” For the landless workers reform measure “has no meaning unless it redis- tributes land to the workers” (Myrdal, 1968: 1052-64, 1331; see also Thomer, 1956, 413). 2, A number of students of land reform measures have stressed the “status gulf” between landlords and tenants, and its impact on the admini- sirative and judiciel decision-makers handling disputes between tenants and landlords, Some offcial reports on implementation of land laws can- daly state that in case of “conflicting evidence, there is a greater tendency to believe the landlord then the tenant, the presumption being that a ‘poor man islikely o speak untruth with @ view to obtaining some land than the rich landlord who... may not be under immediate pressure to 600" (Indie: Planning Commission, 1959: 38). 3, Alice and Daniel Thorner (1962) have highlighted that the “primary aim ofall classes in agrarian structure” hes been with “rise in social prestige by aiMlaining as far as possible from physical labour.” Their50 SoctoLocy oF Law Tack of concern with eficient cultivation by personal exertion deriving from valued aversion to physical labour has obstructed the attainment of underlying economic objectives of Iand reform measures, 4. Attainment of economic objectives calls for change of attitudes and motivations. Although there is some official awareness of the. need to remove “motivational and other impediments arising from tradition and Past inheritance” (India: Planning Commission, 1973: 125), the approach of planners and policy-makers has been largely a technocratic one UCN, Raj, 1966: 38). The limits of suctt @ change are also the limits of efeeting implementation of Iaed refocm measures. Cultural “Factors* 1. A Planning Commission study focusses on a distinctive cultural factor when it stresses the fact that the very ideas about tenants’ rights against landlords’ are of “comparatively secent ovigin.” In acultural milieu where ‘the conception of land as property and respect for the privileges of ends owners is “deeply rooted”, the liberal ideas about tenants" rights and privileges find only gradual comprehension. At one point the commence are brutally frank end worth quoting. “We find the acceptance (of ideas about tenants’ rights) somewhat dificult even among politicians whe should ordinarily have more liberal ideas than a revenue officer. The unconscious resistance of the revenue officer to liberal ideas can, then fore, be easly comprehended” (India: Planning Commission, 1959: 138), 2. The culturally rooted deference towards landowners by tenants ‘and workers would sesm to pose another problem for the legitimate of new egalitarian ideas 3. The attitudes towards manual labour, social ranking (already referzed to in the pre problems of cultural change. and their vital relation to ding sub-section) also raise Economle ‘Factors’ 1. Severe economis imitations slo make some of the grandane objectives of ind reform measures virally imposter ch na ‘the slogan “Land to the Tiller" or the Paramount aim of land redistri- bon through exiting lavs and alled mcanrev aa ae ne sen ot ange” of lanes labourers assume that theres enough eng se tosathly eto polis. ‘This simply aot the caoe oe 1959514 Sh, 1971 14). Similan, the atempted foals the ones of the arose roduc tare tabtatal op one and tapidly groving lbour fore and seus demand te oa Swag e demand for land (yee 1968 1331). "No amount of legislative pefstion and sa hota Viglane can comer etfively te economielimation tat nea ooh eran LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA st the attainment of redistributive goals. 2. The wide diversity of opinions on the centsal problems of relation ship “distributive equity versus productivity” or between “social justice and growth” poses another limitation. Is extreme inequality of land ownership (sought to be remedied through ceiling and tenancy reforms) ‘a “serious bottleneck to the improvement” of higher levels of agricultural Production ? Would redressing of this inequality, if that were possible, Necessarily ereate conditions for greater agricultural growth (Jha, 1971 : 98-100) ? Will effective tenancy legislation necessarily lead to more efficient resource use? Does conferment of ownership rights create “the ‘magic’ for economic incentive and enterprising venture in a farm operation” (Jha, 1971: 11)? Unless relevant economic policy guidance arising from a systematic thinking and reasearch on these and allied questions is forthcoming, land reform measures will continue to be characterized by confused mixture of ideology and changing vogues of ‘economic thought. 3. The concern for the volume of marketable foodstuffs is also. influ ‘ential in setting limits to effective implementation of land laws. In a ‘sense, in the traditional agrarian structure the moneylender and the Jandlord nearly monopolized discretion about the market allocation of the output, elways variable in any event due to fluctuations in crop size. Effective implementation of land reform measures could result into 8 diffusion of this diseretion and could probably “cause deliveries. to ‘market to shrink, even if ageregate farm output rose. Even though this concern for marketable foodstuffs is both appropriate and lesitimate, ong term solutions demand a hard look at institutional reorganization in agriculture” (Myrdat, 1968: 1369-70, 1255-59). Political ‘Factors’ 1. The recent Task Force Report on Agrarian Relations sharply bighe lights the lack of “political will” as a basic factor for the “failure” of land reform measures, The Report says, rightly, that the “hard political decisions” coupled with “effective political support, direction and control” are essential to enactment and effective implementation of land reform laws. Such “political will” cannot be expected, in the present ‘political Power structure of the country” (India: Planning Commission, 1973), 2. Tt is doubted whether “radical” measures stch as complete elimin: tion of ownership rights in lend for the non-cultivating classes. (Thommen, 1956: 82) or “radical” land consolidation (Myrdal, 1968 - 1375-77) of “collectivization” or self-conscious promotion of “eapitalistic formina”™ ‘at the cost of socialist rhetoric though perhaps not of the socialist palicies (Myrdal, 1968 : 1830) are at all politically feasible, their constitationality apart. 556 SOCIOLOGY OF Law efiects, (i) second-order consequences (uneelated and sometime ineon- grasat jocial changes), (v) feedback (that is “communications whten Saable decision-makers to constantly correct and modify their those fo that goals might be achieved more efficiently") Ti typology is sen fused on “causal distance” of un instant decision and oh oe all consequences. mpc, ia this typological effort, as indeed in the very notion of “impact, is time dimension. It is obvious, once stated, teen impact Soule Oe lect (almost immediate) oF indicect, and that the ingot impact may be ‘greater or clearer” than the direct impact (Wasby, 1970 : many) attending the notion of indirect impact. {related question is whether one i to take account of only the impact Pathe or is manifest functions of a course of legislative policy crore pr abose ofits latent and uncontemplated impact (Merion, 1nge 118-38), Fercentemplated impact of these land reform mesenes a not iscretely identified ia the available literature. Such impact, be it recalled, may in turn be both direct and long term--Anand Chakeavarty’s analysis (1975) provides very many interesting examples of thi Measurement of Impact nother group of questions pertain to measurement of impact. Suppose cma ae Brelesed objective of tenancy seform laws ieve rea re Doge, natey by enabling the tenants to become owaercuitinnges Do we messure the impact of tenancy laws by the Percentage of the fenants who have become owner-cultivators singe ake Passage of the SMiatons, 2 ia terms of proceedings seeking a review of aleaed illegal cyctions or in terms ofthe percentage of voluntary end enuine surre- Wish to be owner-cultivators for a varity of Teasons—social and economic. Are they 10 be included or excluded in the number of persons to be affected ? If Possible o achieve a accurate mapping of ‘LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA 7 impact ? The problem is roughly similar with regard to those who make genuine voluntary surrenders or those whose land is resumed” priot to the purchase becoming ‘effective’. Their exclusion from the number of People affected by the regime of the statute may not give a correct picture of impact. A related problem of measurement ealls attenion to the time: dimension over which impact is to be ascertained. There may b: sigaifcant ‘time-lag between promulgation of a statute and its effective communication {0 affected persons. Time-lag may also be involved if new or supple. rentary bureaucratic structures and devices have to be ereated (eg ‘the Tiller’s Day amendment to the Bombay Tenancy and Agricultisal Amendment Aci, 1957 mentioned earlier). More importantly, even when expansion of bureaucratic devices and machinery is not extensive, the impact of legislative scheme may conti- ‘ue ‘over @ long period of time, which may be mutually reinforcive oF cancellative, S.C. Jha, (1971) in the first systematic critique on land reform studies, nds that the prevalent pattern has been t0 study the change for two time periods, (before and after the reform and tha, tendency aggravates the problem of studying economic change “becaues shor {erm factors such as price changes or other market or technologh, far ghanees also cecur simultaneously.” Whether or not the simultaniety Problem will affect short-term as well as long-term studies. of economia Shapees, Jha. is certainly right to insist that. implementation of reters action is “gradual” and its “net effect” takes “considerable time” and that ‘isolation of the impact of tenure reform from other factors is fox likely of achievement in the short term (Jha, 1971 : 97-98). Isolation of Diserete ‘Causal Retations* _This Problem is of course central to all social science research, where Sate at the level of ‘pre-theories’ rather than that of a ‘theory’. Whoa Fens SK whether tenancy legisation has brought about ‘chenses satts, extent of tenancy" or changes in “agriultural producsiere changes in investment they are exploring economic influenced by many. more factors. than the provisi auvicultont enact impact on the ‘organization and functioning. of Sia nccenomy (ha, 197117), ‘The fundamentel_methodolosice ietion, however, is how to sesregate analytically the impact ore Jezel measure from the plethora of surrounding variables, “i cewcect fector are operating in the same direction, how docs one separate ihe impact the Court's decision has by comparison with other elemene the situation” (Wasby, 1970 : 49), A similar question has at long last been raised in a penetrating& SOCIOLOGY OF LAW jxigue of lad reform, which laments the lack of “any academic {hinking to ‘solace the effects of tenancy reform from effects of other developmental programme”, dificult and pervasive thougi such a Giferentation might be (hs, 1971 : 97). Isolation of legal impact is of course @ notoriously complex task; but there exisis considerable body of thought to facilitate it somewhat (eg, Lempert, 1966-67 Ball, 1960 ; Becker, 1969 ; Campbell_and Ross, 1968 ; Schwartz and Orleans, 1967; Levine, 1970; Wasby, 1970). ‘The single region studies of land reforms, under the auspices of the Indian Pisaning Commission, and most other related studies by individual scholars, have sought to investigat~ legal impact through two time periods (before reform and ‘after’ reform), a. notoriously unreliable method. One simple, and formidable, difiulty with such “before-aftr’ studies of legal impact is simply that the choice of two points of time “may not be typical poriods at which to measure the incidence ofthat behsviour which & supposed to be affected by law"™ (Lempert, 1966-67 125). Many tenancy laws, for example, come ito force at diferent periods of time and are in the process of amendment in the nt of experience (cf. Jha, 1971 : 65). This process in itself aggravates the inescapable arbitrariness in locstion of points of time inherent in ‘peforesafier’ studies, It is also clear that the “before-after’ studies “relatively work in controling, plausible rival hypotheses" which must be controlled by rescarchedesigns aimed at the analytically isolating Tegal impact (Lempert, 1966-67: 112, 124; Levine, 1970 : 503). The existing land reform literature would have’ been more’ productive of sciemiie ilumination through time series or multiple time series research desiens. ‘Consideration of @ sshole dimension of the law—law as culture—is almost completely missing in the analysis of land reform measures, As a cultural system, law ensbrines, and perhaps leitimates and reinforces, the basic societal values. The legal systems as. cultural. systems contribute to the atainment of cultural stability as wel a to cultural change. An important part of the dificutis surrounding the implementar tion of land zeform laws stems precisely because law i teed as an agent of cultural change, a8 a voici of new valies; ideas and. symbols, Stusies of the extent to which the spread of acw vsluss (aad attitudes) has been generated by reformist legislation are keking. The preseat attitude ofthe students of land reform measures towards the ‘symbolic’ aspects of the law is one of dcnigration. Typical of the cconomists impatience of the symbolic impact (ering. perhaps from simple neplect of things that cannot be counted) is Myrdal's curt comment regarding the land ceiling laws: “Itis difficult to see how a pprely symbolic gesture can solve any real problems” (Myrdal, 1968 : 1317). But even laws which may be called mere symbolic gestures t | LAW AND $051 [AL CHANGE IN CONTEMPOPARY INDIA, 0 serve important social functions (Gusfeld, 1967 : 175). One sueh function is the generation of change expsctancies and of attitudes, This has been simply overlooked by most studies of land reform measures. They have “only noticed the resistance by landowners to any change in the pattern of landownership and control but overlooked the growing awareness among the deprived sections of the rusal society and the slow and steady erosion of the unquestioned dominance of the landed lasses.” In other words, the possible impact even of symbolic legisla- tion has been missed. There is a danger that one begins to see “changelessness” in a social situation where “'some change has occurred but not on the desired scale” (Joshi, 1975 : 92). The need for perceptive studies as pioneered by Anand Chakravarti (1975), remains insistent if ‘we are to understand more fully the links between lav, political economy and social structure. And agrarian reform laws are not wholly symbolic gesturing impact studies must take into account both the symbolic and instrumental effect of legal action over a time-dimension, Faute de miews, the range of problems so far raised have been overlooked by most studies of land reforms in India. And the need for a self-conscious lav and development research in this field persists. A proper jurisprudeatiat critique of the extant empirical literature is probably a fundamental threshold task. Towards this task the foregoing thoughts aspire to make a tentative beginning, Other Areas of Law and Social Change As in the area of agrarian reform policy and legislation, in most ‘other areas where the law has been used a3 an instrument of change, there is not much empirical literature focussing on legal impact, For ‘example, while lawyers have produced considerable sophisticated literature ‘on the normative aspects of employment and educational reservations for the scheduled castes and scheduled tribes under the Constitution, they have remained inadvertent to such empirical literature as is available ‘on these themes and issues, especially in the area of educational reservae tions. And such empirical literature as there is on reservations takes, generally, inadequate account of law and its processes. Similarly, while there is some literature on changing attitudes and practices towards ‘untouchability, there is not much that directly focusses on the impact of ‘constitutional and legal provisions. The most comprehensive and reliable work in the area of implemeatation of ustouchability abolition law remains that of Maro Galanter (1969, 1972), though some Indian legal Scholarshave alsowritten in the field (Borale, 1969 : Kagzi, 1977; Sharmay 1976). The merit of Gatanter's study lies in the imaginative analysis of available enforcement data and in relating the question of enforcement ‘of Untouchability Offences Act, 1955, to the wider framework of law6 SOCIOLOGY OF LAW ‘and politics in India. Galanter reminds us that the Act is only one of the several measures in the battle against untouchability (educational, ‘employment and legislative reservations and the general penal law being among others) und therefore too exclusive of focus on implementation of the Act by itself may mislead. He also points out the inherent problems of logistics of enforcement of such a law, particularly consisting in lack of adequate legal services, lack of elite (and intelligentsia) support, lack of interest in legal recourse by the associations of untouch- ables and related voluntary agencies and feeble political and social visibility of the law enforcement processes, Some of the normative deficiencies of the 1955 Act have been remedied by its amendment in 1976, giving the Act also a new title: “The Protec- tion of Civil Rights Act, 1976.” An attempt has also been made to enhance the penalties and strearaline the processes of enforcement. This includes summary proceedings, and provisions for collective fine. The ‘Act also provides for the rather unusual device of empowering the declaration of certain areas where untouchability is practised at its Viralent worst, as areas of disability enabling vigorous administrative action. Needless to say, that despite the vigorous caste warfare in 1978-79, involving etrocities on untouchables, this power was not exercised and that it is unlikely tobe exercised in the future as well. A useful account of approaches to the reform of the law has been provided by Upendra Bexi (1979) who also deals in his paper with the problem of “two moralites in enforcement” of the Act. This problem arises especially in the context of access to water facilities to untouchables in rural areas, a8 highlighted by the pioneering study by LP, Desai (1976). Some governments have taken the desperate decision to provide separate water facilities to untouchables, thus condoning and acquiescing in the ‘wholesale violation of the Act which forbids discriminatory access to water facilities. Reflecting on the Desai study, Baxi raises some questions concerning the conflict between the provision for satisfaction of basic needs on the one hand and the inability of the state to enforce its own law entaifing violation of the underlying values of the legal and constitutional order. ‘The problem of political (ée. legislative) reservations have reccived ‘uch less attention than that of educational and employment reservations. Leelah Dushkin (1972) and Owen Lynch (1969), in their studies of scheduled caste politics, have generally examined legislative reservation in the context of the growth of political consciousness and organization among the scheduled castes. Dusbkin’s view that such reservations (as well as programmes of compensatory discrimination), may turn out to be exercises in “social control” over untouchables,” rather than measures of genuine redistribution, finds support in later literature, especially among the works of Sachchidananda (1977), V. Deshpande | | LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA o 1978), 8. Verba er al, (1971). But these studies do not directly focus on the desirability of continuation of legislative reservations as such, Recently, Mare Galanter (1979) and Upendra Baxi (1979) have. more sireetly deait with the issue. Galanter’s study highlishts the rathes litted role of the scheduled caste legislators in the decision-making. roscoe Within the Lok Sabha, a point also underscored by Baxi with icheonee to their role in the wider political processes and contexts, Gclemee offers an excellent framework for craluation of costs and eve of reservations in general and politcal reservations i partiules, Ba analysis, based on ahistorical analysis of developments since the Poors Pact, and an assessment of empirical literature, leads him to soeset programme of phased withdrawal of reservations. ‘The reservations have now been exteuded by another decade, One hopes’ that. syoomatie studies of reservations at work, at all eves (federal, sate and penchayen "aj institutions) would emerge in the eighties. Again, in the allied ficld of abolition of bonded labour, there is not such lteratuce onthe working and the impact of the seecat a cave the important monograph by A.K. Lal (1980) and the empirical work dave by Mahar and ik aociats atthe National Intute of Laboar 976 and Lal Bahadur Shastri National Academy of Administ en ral Shastsi National Academy of Administration Nor do we have many studies deating with acces to information, and knowledge about aw a ll as atta toweea ag ts but not very rigorous attempt inthis direction was made by G.S. shared 4969)~—see lso S.N. Jain (1975). A significant contibusion in tre reoard is made by B.B. Chatterjee (1971) who has sought to study th limpact of certain social tessations on attudinal changes, ‘Gat inform: education, economic changes which are treated as depend: ble yeudent variables. This is the first tigorous study concerning sources of, or access to, legal information 2g Of Tegal information in the fee vi in naras dist uated Banaras distist, carefully chosen, ffom the aeene ‘ecessbity of communication. Otter tarbies smc a na, ot Yacliy of contact and. communication with the cher ogee modernizing influence”, este group membesshin, eden level of “economic affluence.” P PE Sete Ie, aad Tt was found that the “ the sources of communi ‘accuracy of judgements of the appropriateness of ication is far more influenced yb...facilities of communication--and education, than by caste hierarchy or economiga SOCIOLOGY OF LAW affluence.” Economic affluence becomes related to’ communication of aw in terms of accessibility to radio and newspapers. In terms of oral ‘or person-to-person communication of legal information, it was found that “‘oficials connected with Panchayati Raj have come out very well in all the four villages consistently”, whereas such contacts or communica: tion by “levislators, like M.L.A.’s or MP's. determined more by accessibility of the village than any other fuctor.” At the same time, the study notes that of all the relevant areas of information and ‘communication through these sources (e.g., agricultural, land, irrigation), matters “exclusively pertaining to law tended to take a back seat.” In terms of policy prescriptions, the study recommends most ‘categorically that the “authorities and social planners” should consider greater use of “existing services of mass comfunications” for communica tion of law, especially to beneficiaries and target groups, It is clear that “the facile assumption that knowledge and information about new legislation” seeping to people over u course of time is “uatenable,”* The study declares that “‘not toking vigorous steps to communicate essential facts of new legislation to the people thwarts the very purpose of such legislations.” Chatterjee’s study deals with the problem of substantive impact of changes in the family law—marriage, equal rights of women to inheritance and dowry—and with untoucbability. On untouchability, the most important finding, from our point of view, is that especially among the untouchables “the importance of law eradicating the social evil seems to be clearly recognized—more thao other measures of social reforms” (Chatterjee, 1971 : 235). Another important finding is that “whereas com- munication facility very consistently tends to produce liberalization, higher education, caste and economic affluence tend to foster conservative behaviour.” This finding is striking in the context in which itis made a: well: the communicationally mors advantaged villages are “liberal with regard to access to drinking water facilities to untouchables, which is not the case with the communicationally less advantaged villages. In the family law area, the findings indicate litle or no knowledge of innovations in law. People do not know the minimum age of marriage, nor do they know that dowry is prohibited. There is also a near total lack of information concerning grounds of divoree. Knowledge of law against bigamy or polygamy is “very meagre”, though for economic and other reasons the pructice appears to be on the decline. The Hindu adoption law, similarly, bas made no impact since the rural mind is “totally in- different due to lack of knowledge.” As regards the Hindu Succession Act the position is no beter. Only 12 out of 200 respondents claimed any Knowledge of it ! The only exception is here provided by the provision concerning daughter's right to inherit family property. Interestingly, while 78 per cent of other respondents viewed this provision favourably, about LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA a 68 per cent respondents, belonging to higher castes and relatively ‘afluent? strata firmly opposed the provision (See also Luchinsky, 1963). ‘The situation concerning legal information in such a vital area ab libralization ‘of abortion is not much different. Studies reveal that the concerned groups have little or no awareness of the 1972 Act (see Kelkac, 19745 Menon, 1974: Mankeker, 1973). ‘A very interesting aspect of the study is that in those very areas in which the respondents tad no knowledge concerning the low, they expressed attitudes and desires favouring that there should be such laws ! ‘Lawpersons in Indie glibly talking about law and social chenge or rela: tion between law and public opinion, re-echoing outmoded Victorian platitudes, may some day want to take note of these findings. Attitudes towards the uniform civil code with special reference to marriage have been the focus of the study (1978) by Ra} Kumari Agar- wala. An important finding of this study (located in the city of Poona) is that the degree of “legal awareness does not signiticantly affect res- pondents’ attitud> towards marriage, marital problems and their solutions.” Marriage, by and large, is comsidered by majority as a “eligious act.” Interestingly, most groups (perhaps barring the “high socio: economic group”) regard marriage as a “personal” matter, beyond the ‘pale of governmental jurisdiction” which they consider justified oaly in situations of social injustice. On the other hand, the study reveals that in many arcos, especially in regard to the status of women problems, there appears to be astroug desire for governmental help and intervention, ‘Agarwale’s findings indicate a “love-hate relationship in which govern. mental legitimacy, ability and responsibility to jotervene and regulate marriage is both trusted and resented.” She finds that the respondents are prepared for reform but not for substitution of their personal marriage law. The study urges cultivation of adequate public opinion as @ sine gua non for a successful movement for attainment of a uniform civil code. ‘Vasudha Dhagamwar (1979), also focussing on Poona, probed access to legal information, legal knowledge and attitudes towards marriage and divorce. Her study iS not as rigorous as Chatterjee’s and her sampling frame much limited as compared with Agerwala's, But she probes the dimensions of legal awareness with reference to the educational system as well. She finds that very little or no information concerning busie aspects of law touching on familial relations seems to be imparted at the schools level. While se considers access to legal information as necess- ary for an all round development of a woman's personality and self, her study suggests the possibility that the existential realities (ic. the “role ascription of being a good ‘daughter’ and ‘wife’ and the economis dependence of women on parents end husbands) may themselves. be important factors militating against assimilation of legal awareness and use of law in situations of interpersonal conflict. The description of par-o: SOCIOLOGY OF LAW ental home and the matrimonial home, as well as the reflections on educational system, in this study are thought-provoking, as is the strong ethical evaluation of competing worldviews (through the prism of “rel osity’) in Rejkumari Agarwala’s study. In the area of family law generally, and in relation to the problem of fashioning a uniform civil code, there is a profusion of worthwhile litera- ture, although only very broadly empirically oriented. Here one must mention the pioneering work done by A.A.A. Fyzee (1970) and Tahir Mahmood (19722, 1975, 1976) as well as Paras Diwan (1973, 1977), JD.M. Derrett has produced a trenchant critique of the state of marriage law reform titled Death of @ Marriage Law: An Epitaph for the Rishis (0978). An Indian critique, no less trenchant is to be found in B. Sivara- mmaya (1979) who hes himself made an important contribution to the understanding of the Hindu law of inkeritance in his well-researched ‘monograph (1973). There are two handy snthologies on the problems of devising a uniform civil code : one by Narmada Khodie (1975) and the other by Tahir Mahmood (1976) see also Indian Law Institute (1978b). These reflect the somewhat acute diversities of styles of thought and con- flicts of values among a cross-section of the academic elite. Politicians who remain generally lukewarm towards the idea of-the uniform civil ‘code really need no alibi for doing nothing; but should there be felt need, the diversity of scholarly views would provide a respectable alibi. But in terms of the need for minimum provision of well-being, whether looked at from the standpoint of material or dignitary interests, the case for re- form in personal law system, especially Muslim personal law, remains very compelling. Outside the areas of family law and criminology (for the latter see section VIII) there has not been much empirical research. Currently, three ICSSR projects are nearing completion. One pertains to the area of untouchability (by J.K, Mittal of Panjab University Law School! and two others relate to labour Jaw. PG. Krishnan, of Delhi University has focussed on the problem of delay in industrial adjudication; K.L. Bhatia (Gammu University) is examining the administration of workmen's com- pensation law. Also, considerable commissioned research in the area of ‘women’s status, both at normative and empirical levels, was done under the leadership of a task force led by Lotika Sarkar for the Committee on the Status of Women, some of which was reflected in their report Towards Equality (1976) and some of which will find a place in the second volume of the ICSSR monograph entitled Tie Invisible Gop (Lotika Sarkar, 1980). In addition, some work on the interaction beween tribal legal systems and the all-India state legal system has already begun. The Indian Law Institute study on customary law ia Assam, conducted by Kusum is nearing completion; she attempts to disclose the ‘gap’, both in terms of cog nition and social efficaoy, between the decisions of state courts involving | LAW AND SOCIAL CHANGE IN CONTEMPORARY INDIA 65 ‘tribal family law systems and the steady evolution of these systems ina nearly autoncmous fashion. The area of impact of the state criminal law system has also been a subject matter cf monographic studies, “These include notably by S.C. Verma (1978), Y.C. Simbadri (1979) and R. Deb et al. (1970). We take a closer look at these studies in chapter 7 : ‘but here it would suffice to note that the state of art is not a happy one. Its surprising that this area should have received such scant and variable attention, compared with the literature on the scheduled castes. ‘Much the same can be said concerning the study of legislative process as such. Both logically and sociologically, the use of law as an instru- ‘ment of social change begins with the making and enactment of law. The ‘manner, and the context, of formulation of political, economic, and social policy into law is as important for its efficacy as its implemen- tation. Very often, the lawmaking variables bave causal beating on im- plementation and overall eflicacy. And yet legal as well as other social scientists have paid scant attention to the pre-history of lawmaking pro- ‘cesses; whenever the gestation period of law is studied, this is also rather done formally at the archival level (that is through study of joint select committee reports or parliamentary debates) whereas what is really need- ed is inclusion of larger social, political and economic contexts. Examples of thislatter kind of study, though much neglected, are provided bby Robert Stern's The Process of Opposition in India (1970) and D. Bayley’s study on preventive detention (1962). Stern’s study is particularty not- able for the areas on which it focusses: one is the reorganization of states and the other is the vicissitudes of the Gold Control Act. There is need for studies of this kind in vital arcas where legislation is sought to be used as ameans of social change, especially in areas of economic regulation through law and of legal infusion of political morality through ant corruption legislation, One might also recall with some justification the studies of colonial law- change interaction notably by Lalita Panigeahi on infanticide, reviewed in carlier part of this paper. Such painstaking attention to legislative process, in the wider sense is essential for a proper erasp of the role of law as a gradient for social change in modern’ India (see also further elaboration of role of direct action in modulating legislative context and behaviour in Baxi, 19758),4 PEOPLE'S LAW, DEVELOPMENT AND JUSTICE Introduction There hasbeen a general secogition, both in ocioogy and in jue bradece, ofthe at that mont nite re mela aa te tion to the state law they display kindred reulatey sens tac institutions and eultore performing functions similar for social groups that the stte law aspires to perform forthe entre society. But neni horas Bradens nor scilogns cheracteic the group teeleton etena "aw or ‘egal systems" owing to logical and ieolopeal tasers bch annotbe explored hore Ge Baxi 1919, Toes Feldstudies, certainly support the hypothe of iulile levels of the legal stom in Todia. They abo. support the secre thee “the concntation on formal and wien lw has distorted serge ot Tian lawyers and intellectuals. Te has led to even pcteniog seria law enforced in the unofficial Panchayats is not law” (S 19628118), Undoubtedly, there exist more than two broad complexes of nora institutions, and processes in Indian society by which disputes are. set led'—the inherited and indienized cat national aod neon a fpstoms and the tadkionl ‘systems’ of Loe buna cegiey ial exsiomary Taw norms. Equally inébitaby, there onteee Complement each other in varity of way lovame, Sok ala But we sill need to know the exent of seseen and support among thse systems. and the, ee To know this we need to move avay fom the Srinivas, al relations of exchange nt of their autonomy. “pure” types of village PEOPLE'S LAW, DEVELOPMENT AND JUSTICE o and customary law. We need studies focussing on the interaction between the numerous local and national systems, and the mutuality of ross-systemic influence/impact. Equally importantly, we need a systematic description of key points of tension and conflict between the systems (cf. Cobn, 1965: 103-09; Khare, 1972; see also Chakravarty, 1975; M. Sharma, 1979) In addition, two other sorts of jobs need to be done discretely, not as a gloss on the descriptive tasks. One is to explain the persistence of the plurality of the legal systems. To understand reasons for persistence of the ‘village’ Law and justice is to explain some of the limits of effectiveness of planned social change through the instrumentality of the national legal system. The other job, related to the first, but awaiting separate analysis, one of evaluation. Is the discovered pattern of relations between the state legal systems (SLS) and non-state legal systems (NSLS) of dispute- ‘handling (pattern, may be of complementarity or conflict) good or bad in terms of the attainment of the constitutionally proclaimed social order ? In what follows, some of the available literature has been organized in terms of description, explanation and evaluation. Description Case studies focussing pre-eminently on dispute processes are in- frequent. Typically, the focus of attention is the caste authority-strueture and the overall processes of stability and change in a village. Dispute ‘settlement’ analysis naturally forms a part, perhaps an important part, of such studies. But such accounts contain scanty information concerning several crucial aspects of the dispute processes. The following categories of information are essential : 1. Dispute processing structures. 2. Types of disputes involved. 3. Processes by which settlement structures were activated. 4. Ways in which disputed matters were considered. 5. Decision-making processes by which substantive outcomes were reached. 6. Types of sanctions attaching to substantive outcomes. 7. Ways of handling intransigent sanctionees, 8. Relationship of the ‘local’ system of dispute resolution with the wider natfonal legal system, 9. Functions of local dispute settlement processes as perceived by the community studied and apperceived by the ethnographer. 10, Identification of recurrently applied rules, stindards, and precepts diffusely called ‘customary’ of ‘local’ law.6 SOCIOLOGY OF LAW ing substantive outcomes, g., customary norms, caste dominance, factional alignments, ‘public opinion’, “manegement in inveeation of supematural sanctions, the possibility of recourse. to. the "outer official national legal system, the rolestructures “of decisions ‘makers. Available studies emphasize aspects of dispute settlement cognate to Principal themes of the researcher (Cohn, 1965: 83-108). The resulting abundance of insights, however, leaves 2 number of important questions concerning dispute processes unanswered. The literature. is virtually wholly deficient in areas sepresented in categories (3), (7), (8) and (10, Tather variable in relation to categories (2), (6) and (11), whereas it i¢ ‘most substantial in areas (1) and (9) ‘The informational shortfalls impede access not just to careful descripe tion of dispute-handling processes but also complicate the tasks of explan. ation and evaluation, One way to remedy the situation, short of renewal of field-effort, is to institute a Kind of information-retrieval from the community of scholars who have, by their endeavours so far, made the field less intractable for us. I have here in mind circulating compre- hensive questionnaire on the lines of the above checklist amotg those scholars. “Mfthey have preserved their fieldwork notes, it might be poss. ible for them to respond to these inquiries, It is conceivable that the relevant information which they may have considered excessive or redundant to their published work may still be accessible tous in the present context A most general picture of dispute institutions in rural areas may still not vary from the outlines provided by M.N. Srinivas. Writing in 1962, ‘and reflecting upon field researches dating back to the early fifties, Sri vas urged “systematic study of disputes in rural areas and their settle= ‘ment by non-official panchayats” as being “extremely important” for the development of “sociology of law and legal institutions” (Srinivas, 1962: 18-19). Ina brief analysis, Srinivas recalled anecdotally and rather at @ general level his own impressions of dispute-settlement procedures studied over a period of two vears (see also Srinivas, 1952, 1976). But ‘Scinivas’s general conclusions are balanced-and guarded, and well ground. ed on a characteristically candid and refceshing acknowledgement of the difficulties of a legat ethnographer (Srinivas, 1962: 116-117). Srinivas's findings were: () “something like case law exists, though it is mot system, atized”” (ibid., 112); (ii) some disputants, specially as regards partition of family properties tend to “drag on” for weeks (ibid., 113); (ili) the intimate Knowledge of the dispute and the disputants by parties and village elders pro. vided a “pre-existing image” so that “even the ‘same’ facts are fitted into different configurations”, altough the pre-existing image is seldom unchan. geable; (iv) rudienentary indices of probative value of witnesses—through Teputation and unwritten rules analogous to the heatsay rule—enable a ‘#E0PLE'S LAW, DEVELOPMENT AND susrice o narrowing of competing versions of “true facts”; (v) ulterior influences and factors—such as favouritism or nepotism—oocasionally influence the outcome (ibid., 115) and finally (vi) the village tribunals are orientated to the ideal of justice (nyaya, diarma), moralistic and religious considera: tions and influenced by “public opinion” to a degree. A more detailed conspectus would, however, have to acknowledge a wide variety of Gispute institutions and processes in India, There seem to be three maia types of NSLS in rural India. Very gener- ally, these are caste-based NSLS, community-based NSLS, 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 individ- uals in rural India have two sets of predominant 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 and Jati (Sub-caste).” Each set of special relations has “‘norms that can be considered legal and individuals and groups possessing the socielly re- cognized” authority to apply. physical force to enforce them within the Focal communities” (Cohn, 1965: $2). The community NSLS extend beyond the caste to the village unit itself, though patterns of caste domi- ‘ance, or of power distribution here intrude, sometimes to a point that a village panchayat becomes the very extension of dominant group govern. ment. The ianovative/reformist NSLS are dispute institutions like the ‘People's Court? (Lok Adalat) at Rangpur which are sponsored by accul. furating agents or agencies, with the ideologies which centre upon the Principle of generation of Lokshakti or people’s power for social trans. formation, and which deny, or circumseribe, the state power (Baxi, 19768), In addition, there exists in some parts of India, an ioteresting nexus between caste panchayats and religious institutions. ‘The various Hindu ‘mathas especially in the South seem to have an overarching jurisdiction over some aspects of caste panchayats. But their role i largely, advisory and in discharging it the machas generally respect the authority of caste Panchayat. The patterns of interaction between caste panchayat’ and fous institutions have recently been studied by K. Gnana- mbal (1973); om the whole, this area has been neglected. It is therefore dificult to assess the spread of the interaction of religious institutions ta their adjudicative role with other types of NSLS, The dominant form of the organization in each case is set of dispute stitutions (¢f. Abel, 1973) called panchayats. Panchayats. normally, are a group of five people who hear and decide disputes mostly whey they are summoned to do so but frequently on their own. However, in cach type of NSLS, the subject matters vary. Very generally, caste (fat) Panchayats deal with conflicts of interests and values within Jat? groups, including factional aliances within those groups, Village or tecitoriam0, SOCIOLOGY OF LAW Panchayats deal with conflicts of interest cutting across caste factors, though those very factors may play often a crucial role in the ‘resolution? of a particular conflict. Jati pane ayats vary enormously in structure and scope, Bernard Cohn has insightfully grouped the structure and scope of jatt panchayats in terms of territorial units as well as patterns of caste dispereal and domi ation. His classiication yields three. types of jati NSLS: (a) villages with a small population of a single cast, (b) mult-caste villages with single hhead (authority figure) and (c) multi-caste village with a dominant caste (Cohn 1965: 83-98; see also Srinivas, 1962: 118-119, Gnanambal, 1973, 106-204). tis clear that jati NSLS may have wide territorial reach in terms of agategation of jatt circles, so that itis not unusual to fiad as many 9s 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 ‘rapsportation”” and “by the kinship radius of the conveners” (Mandel. baum, 1966: 281). There is equally clearly a federal component in Jat! NSLS and different levels of hierarchy (see Colin, 1959). The nature of the conflict or its importance to jati solidarity patterns may, however, wolve the use of the highest collectivity of jat? NSLS (panchayats com, prised by as many 2s 20-25 villages), ati panchayats also show interesting variations in organization of Power and authority. While these remain to be systematically studied, 8 mix of any of the following variables offers some clue to authority and Sources of egitimation. The close correlation between age and wisdom Provides one mix—the panchayats are often led, even composed, by such ‘men. Esteem, reputation, integrity and charisma provide another mix, Feo. Romie base, as related to social status (Weber's analysis of status-groups 4s distinct from class is despite its seminalty, largely iguored in Indiva studies) also invests power and authority in certain mea. So does the status of being a faction leader (cf. Chakravarty, 1975). Although not so Prevalent now, we cannot altogether jgnore the hereditary or royal allo. ations of role and authority (ef. Cohn, 1965: 85-90), Jati NSLS primarily involve disputes and conflicts. which are related to fhe maintenanes of jati ranking (in ermsof ritual axis of pollution and pur- ity) and solidarity, Ritual lepses, marital relations, commission of polluting Acts, sexual deviance, inter se land disputes credit transactions, patron, between this kind of sanctioning process and those which entail infictioe of physical pain or tersitorial ouster or caile. Excomnuniestion epresents “non-violent de-ntersement in those who flaunt society's rules (ibid., 167), There are many interesting and distinctive features of Gond concep- tions of justice. Firstly, as noted, unlike Nogas, the Gand. “recognises the existence of social and moral order extending over the whole of Oond society and in no way limited by geographical ‘bound, Secondly, While a limited amount of self-help is permitted, there is among the Gonds a general disappoval of “retaliation as a means of abtaning dustiee””_Among the Gonds there is “‘ao room for institutionsiines reprisal ofthe type current among the wibes of Arunachal Pradesin” Thirdly, the importanes of enunciation and maintenance of customary norms is often balanced withthe need for restoring “the disturbed sock harmony.” Often, the panchas endeavour to promote a setlement which may give to partis less than what might be due to them on a strict standard, of customary law. Fourthly, a “characteristic feature ot justice administered by Gond panchayats is the absence of any provision {for the award of compensation for injuries suffered”; compensstion awarded only for the actual ‘expenditure incurred. Fines, whem levied usually acerue to parchas and not to the vievorious party, Aiihly, discussion on “general rules applicable and hypothetical cases ‘volving similar legal problems” occurs frequently in Gond panchayst Sessions, Thus, “the law as recognized by tradition and public opinion 5 periodically restated and reformulated, and adjustments necessitated by changed conditions can be ventilated and gradually evolved” (bid, the excommunicant to a “an elaborate purification ly be conducted by a raja.” really reinforces the identity of A Gond refusing to comply TRIBAL LAW AND JUSTICE 7 (ibid., 174), . e pape somes oe Goren, ee ae performance of collective duties, and (iv) containing deviance and when they seem to the “‘administrative elders” or to the people ‘unable88 SOCIOLOGY oF LAW agrarian enterprise, cultural values and even cosmogony. Anthtopolog sal studies do mot, by and large, anslyse the mature and scope of interaction between indigenous tribal institutions and law and the’ gare law. .We have a few tidbits of information conceming interacten between the two legal systems. Introduction of cash fines represents Rot just ‘the monetization of tibal economy but also the impam of the state legal system ‘stock-in trade" restituive sanction. The preventing of the practice of head-huating among Nagas, and the actual distss of this sanction, is a direct consequence of the imposition of state law so an initiator of change in the indigenous law. The reference, in moet siumatlons, of murder to the state criminal justice system ‘by the trlgoneng ;atem 4s a fair measure of acceptance of the hegemony of the SLS in certain areas over NSLS. But as the Santhal situate, ‘Mlstrates the SLS has a negative face for most tcbals perhaps not becnes tion and cruelty of its nonstribal agents—the police, prosecutors aed in Some casts even the courts (also see Baxi, 1976b, 1982 on the Rangpur ‘experience; Elwin, 1943). We also Iearn from these studies concerning the differences and ‘Similarities in conceptions of justice and its relation to. power The ‘oral and jural double standards of Konyak Nagas are perhaps, atypical Dut the SLS in its enforcement of law and administration of justice Zot much Temoved from the strated justice of Konyak Nagas. Inany ate, the concern for harmony, favouring the resourceful over Whe Mee eer Gees trough a careful elaboration ofthe law found tmonget the Koj Gonds offers almost a paradigmatic description of the Indien ‘any distinctive conception of justice ; there ctive types of conceptions of justice among {hem (Furer-Haimendort, 1967). These need to be examined in seine {0 conceptions of justice manifest inthe Village legal systems and’ chon manifest in the SLS. ‘The impact of the constitutional solicitude for the scheduled tibes grer the interal political and judicial processes of the trbal sytens G20 Temains to be examined. "Anthropological studies have reiterned thatthe “clear and expectable” dirsction of tribal change is tonato to the original identification (e.., the 2-30). To what extent, ‘TRIBAL Law AND Justice 89 ‘fat all, the ati models of law, adjudication and justice influence such exercises in identity realignment 2 The foregoing indications and questions underscore the need for a sustained systematic examination of the relation between people's Jaw and state law, and the underlying value and ideology considerations, No genuine understanding of the social change dynamics through legal pluralism is possible without such efforts.6 THE NYAYA PANCHAYATS Introduction Coriusly, while there i much literature on decentralization of political power—that is legislative and executive powers—there i very litle direct Examination of decentralization of judieial power through vlage sous and myaya panchayats (NP). Although, village courts were established, for example, in Madras as early asthe end of nineteenth century, we do not have any descriptive, let alone empirical, literature on their function and rule, both i relation tothe SLS and NSLS. Similarly, the devole, tion of judicial powers, between 1920 and 1947, om panchayats hae Temained largely ‘unexamined in these terms (Bex, 19760), The tendency, even for this period, is towards an examination of the structure, fusction, and power of village bodies as aspects or units of local self-government. Fortunately, 2 few studies give detailed atteation, within this context, to specie dynamics of the devolution of judicial powers to local bodies, OF such studies the most notable ‘work is that of Hugh Tinker (1954)—see also. Jain (1968). Tinker’s authoritative analysis establishes + G) the Baitish experimene tation in panchayats was “nombere intended to reproduce the character isis of old timepanchayate” Tinker, 1954:197): i) panchayats were only intended toprovide “a rudimentary municipal framework for large villages ‘and small towns” and or to form a “simple judicial tribunal” (ibid., 197) ; Gil in this later rote “he principal function of the panchayat was to act as a petty court” (ibid., 197); (iv) litigation before panchayat was a source of revenue—mostly through the levy of ines—since these bodies had ‘no ‘THE NYAYA PANCHAYATS on taxing power. Tinker offers impressive statistical evidence of the rising volume of judicial work of panchayats especially in U.P. and Bengal (ibid., 207). But apart from this valuable information, we have nowhere in available literature any close analysis of the nature of disputes, justice-qualities of the decisions, or the impact of the judicial work of Panchayation the SLS and NSLS. Studies on legal history deal only with ‘superstructure’, rather than ‘grassroots’ for dispensation of justice. A very important area of social history of Indian law awaits exploration, thirty years after Independence. Official Evaluations of Nyaya Panchayats As noted, studies since Independence have also been neglectful of this aspect. But the steadily growing litersture—both official and non« official—does provide some information on NP system. Among the official literature the famous Fourteenth Report of the Law Commission of India (1958) provides the first analysis of its kind. The Report is primarily concerned with the structural aspect of NP. It deals with the controversy concerning the nominative versus the elective principles in ‘the constitution and composition of NP. The Law Commission, a body of lawyers, did reject the nominative principle, but it had some diffcult- ies with the idea of an elected judiciary. It seems to-have solved this problem by refusing to regard NP as judiciary in the proper sense of ‘that term and by viewing them rather as popular tribunals (pp. 912-13). ‘The Law Commission also found the workload of NP quite substantial; it also found disturbing symptoms of delayed justice and arrears. The ‘Commission thought that all this was partly due to lack of elementary legal knowledge and recommended some kind of training programmes for the nyaya panchas. ‘These and other matters received greater attention in a full scale Report of the Study Team on Nyaya Panchayats (India : Ministry of Law, 1962). A most comprehensive examination of the working of NP ia India, this Report also represents the general official thinking on the nature and function of NP. ‘The Report, though dated, is of continuing relevance because most of its recommendations still await implementation, In fact, the Ashoka Mehta Committee on Panchayati Raj (Indi Ministry of Argiculture and Irrigation, 1978) in its all too brief chapter ‘on NP is content merely to reiterate the Study Team's recommendations. ‘The Study Team favoured indirect elections to NP, and rejected the nominative principle, It emphasized the need for a comprehensive ‘raining of nyaya panchas and devised a programme for such training in considerable detail. It agreed to proposals for extension of NP jurisdiction but declined, unfortunately, to extend it to matrimonial matters, The Study ‘Team shared, more or less, the same general view of NP (elaborated.