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Session #3: Tuesday, 28 December, 2.00 - 3.45 pm (Tagore 4)
Panel coordinator(s): James Jaffe (*)
Chair/discussant: Shalini Randeria (*)
Panel description
Panelists, paper titles, and abstracts
We trace the rate and kind of litigation in the ordinary trial level courts of British India from the late 19th century to Independence and compare these figures with available data on litigation in the post-Independence Indian courts. We consider possible explanations of the precipitous fall in the amount of non-land litigation during the Great Depression and the continuing low per capita use of the lower courts in contemporary India.
The Gram Nyayalayas Act, 2008 (or Village Courts Act) perpetuates the phenomenon of two Indias. That of the relatively better resourced urban citizen who can afford and has access to the courts, and that of the poorer, more disconnected rural citizen, whose claims are to decided in village courts- around 5000 of which have been established. The Government has introduced village courts to reduce pendency within the system.
This paper has two primary aims. First, to show that the Indian legal system is in fact least used by the people the statute seeks to keep out of the legal process. This is done, by the presentation and analysis of data that deals with initiation of cases - civil and criminal, in district and High Courts and is segregated state-wise. This in turn is co-related to data that pertains to income levels, literacy rates, and states that have the highest rates of incidents of naxal-related violence (law and order problem or the inability of the state to maintain public tranquillity or order). Further, we show that the it is the Government which is the biggest litigant by far.
Second, this paper highlights the inadequacies of the Gram Nyayalayas Act, 2008. It is argued that it will lead to the unjust exclusion of the impoverished from just legal processes under the garb of ‘speedy’ and ‘efficient’ administration of justice. Building on this analysis, we suggest that not only does the Government with this legislation, takes away rights that accrue to all citizens under any legal system: the right to appeal, right against self-incrimination. But it also creates two formal universes of due process and justice - one for the poor, and the other for those who can afford the existing legal hierarchies of courts. This we argue violates the promises of our Constitution, and impedes access to justice for the disadvantaged.
This paper presents the results of a statistical analysis of over 200,000 civil cases lodged in the civil courts of the Bengal Presidency between 1819-1827. The paper reviews the complex judicial structure of the Presidency, analyses the types of cases brought before the courts, discusses the trends in litigation over time, and makes preliminary observations as to litigation rates during this period. Greater attention, however, is directed to the role and functioning of panchayats under the East India Company. Data for this analysis survives for approximately 3500 cases. Once again, the data is analysed to reveal the types of cases most frequently referred to panchayats, the character of panchayat decisions and the decision-making process, and the types of appeals from these tribunals. In all, this data is historically unique and presents special opportunities to discuss the nature of panchayat justice under British administration during the early nineteenth century.
My paper proceeds from premise that the international sphere provides an ideal testing-ground to understand the prospects, dark and bright, of legal pluralism and “multiple scenes of the law”, for it is particularly in this sphere that the “formal judicial process appears as one of the many competing actors in the theatres of justice.” Its focus is the many strategic shifts of forum and elisions of debate that characterized the process of conclusion of the India – US nuclear deal from July 2005 – October 2008.
It offers two narratives of this process. The first is a bright account that dwells on the benefits of deformalization, soft law, multiple fora for law-making and application, and the trend towards legitimacy (not legality) as the authentic standard. These developments rescue international law from simplistic accounts of obligation and breach, and hinge its relevance on facilitating principled accommodations between conflicting interests. The nuclear deal is a story of accommodation, between the goals of non-proliferation and disarmament that animate the Non-Proliferation Treaty and interests in trade, energy, and recognition of India’s emergent-power status that underpin the nuclear deal.
The second narrative flips to the dark side of the same developments, showing that they result in truncated debates at strategically chosen fora, and deny the complex interests involved in an alteration of the status quo. I build upon Martii Koskeniemmi’s insight that while international law is substantively indeterminate, its use driven by politics; the choice to invoke the language of ‘law’ is a progressive choice. That law and politics are intertwined enhances their legitimacy. Koskenniemi assumes however that all legal fora afford opportunity for equal discussion of all views or, at worst, are only substantively biased towards particular politics. I argue that the very format of argument followed by a forum may highlight certain issues and obfuscate others, and crowd out the language of law/politics in favour of that of technology or economics.
Finally, I explore whether these two accounts are inextricably connected. Are the conditions that allow truncation of debate also those that enable accommodation of conflicting interests? What does that imply for values of accountability, legitimacy and, above all, democracy?