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Non-State Legal Practices in India

Abstracts
From Stamp Paper to Brass Bells: Procedures of Petition and
Justice in Golu Devs Territory
MEERA BAINDUR
Golu is called the supreme deity of justice by his believers. This deity is
territorially placed in a juridical relation with his subjects, those who reside
in the districts of Almora and Nainital and also his believers who are
sometimes not resident in his juridical region. He is often considered to be
the supreme court above the Supreme Court [of the Republic of India].
While Golu is clearly seen as a divine being operating above and beyond
the state legal system, yet it is in the presuppositions of his devotees that
he is placed within the same state system of justice. This is clear from my
on-going field work in Chitai, Almora. I found that a non-state legal
practice of petitioning the divine is contemporaneous with the procedures
of state legal practices. Practices such as petitions through stamp paper, a
practice of summons (called maath) and also punitive justice, retribution
and fines are to be found in Chitai. In case of Golu, a legal stamp paper
(until recently, now they are e-stamped) is used to petition the deity and
the post-case payment (in kind) of the petitioner is made through the
donation of a bell.
Theoretically, it seems that three main principles of ethics and justice are
in operation here truth telling, confession and the idea of the feared
curse. I posit that this system of justice is a self-regulating practice that
intercedes on behalf of the wronged person through a visitation of
calamity on the accused, particularly ill-health, in other words a curse.
Confession of the accused happens through the form of ritual called the
Jagar or through the sacrifice of a goat. While in most cases the Jagar is a
possession ritual where the deity communicates with the devotees and
listens to their petitions, here in case of Golu it is particularly different.
The petition is already given in writing. Therefore Jagar for the Golu mostly
is a healing ritual where the accused holds a story telling session and a
performance, at the end of which he/she confesses and is forgiven. The
ailing person who may be the accused or his/her kin is healed. Others may
also seek healings and blessings during the ritual. If Golu helps a case in
the state legal system to be resolved in his/her favour, the petitioner after
gifting of the necessary bell may also hold a Jagar performance in thanks.
I posit that the layering of the relationship between the benevolent deity,
his ability to punish wrong doers and interfere in the state legal system,
and the stylised ritual practices of written petitions that are modern,
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complicates a singular understanding of this as a non-state legal practice.


I would bring these findings in dialogue with Habermas conceptualisation
of non-state practices. An added framework would be to examine the
materiality of the practice and ritual efficacy of this system of belief and
justice.

The Costs of Legal Pluralisms


UPENDRA BAXI
This much has been conceded--- mostly covertly though sometimes
overtly- that when one lisps the alphabet of legal pluralism, one needs to
avoid the tyranny of singular; with this much we must also acknowledge
the fact that (to borrow the title of a book on free speech by Stanley Fish)
that There is no such thing as legal pluralism and it is good thing, too!)
We have only legal pluralisms: as many isms as there are folk legal
systems.
Plurality is an elementary social fact; pluralism is what one constructs out
plurality. The ism therefore is a construction of ideology and in this
enterprise come to play at least two elements identified by John Rawls:
reasonable pluralism and the difference between what is reasonable as
contrasted with what is rational. Rawls maintains that what is rational
(as a means-end relation) is not often reasonable (meaning just): thus,
colonialism, apartheid, and genocide (the trinity of elements that almost
define Western Enlightenment thought and practice, or indeed any form of
imperialism) did not constitute reasonable pluralism. In the present times,
the distinction between public and private reason opens up further
space for the costs; so do the varieties of annihilating experience,
whether of contingent or enduring state and non-state terror networks. If
legal pluralism is a means of resistance, what kinds of emancipatory
potential does it hold?
What then is, or may be seen, as reasonable pluralism (seen by Rawls as
essential to a theory of justice)? I approach this question in terms of the
costs of maintaining legal pluralisms, who bears these costs and for how
long, and whether the costs thus borne are or can be considered just? Are
costs always measurable in terms of an encomistic cost-benefit approach
or may one include non-quantifiable costs such as rule of- law ,
developmental, or justice costs? When does reasonable collapse into
merely rational pluralism? And are these costs integral or accidental?
In raising these issues, it goes without saying I do not advocate a retreat
from deep legal pluralisms (as we know these). Nor do I here raise
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concerns with Giorgio Agamben about the notions of ban and exclusive
inclusion or with Alain Badiou imagery of necessary reduction of
multiplicity to do mathematics or axiomatic sciences: I do not know
whether what is good for mathematics or pure science is good for the
political and the politics. All I know (with a few anthropologists who take
social suffering seriously) are voices of social and human suffering-- the
marginalized, vulnerable, and the oppressed- who tell me how they
negotiate lives alongside with many discrete, even intergenerational,
costs of various legal pluralisms. How may we preserve our fighting faiths
while listening to voices of suffering is then among the problems that
invite serious engagement.

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Ocean and Coastal Grabbing: A Contemporary Legal Pluralist


Perspective
MAARTEN BAVINCK
The grabbing of marine and coastal resources, which is a topic of
contemporary scholarly and policy concern, has clear connotations of
legal pluralism. After all, the grabbing of resources by powerful external
parties is frequently legitimized by reference to law that differs from the
norms and values of those from whom resources are grabbed. One-sided
appropriation is thus the result of the asymmetrical interaction of legal
systems and their adherents.
This paper considers the theory of ocean and coastal grabbing against the
backdrop of intensified global usage of these geographical fringe zones. It
ventures a perspective that positions grabbing in a larger picture of legal
pluralist interaction. Examples are drawn from the conflict taking place in
the Palk Bay between semi-industrial fishers from Tamil Nadu and their
small-scale fisher colleagues in northern Sri Lanka.

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Legal Pluralism, Sexual Violence and Public Secrecy in India


PRATIKSHA BAXI
Unprecedented and sustained protests followed the brutal gang rape and
subsequent death of a 23 years old woman in a bus in Delhi on 16
December 2012. The protests transformed the discursive and juridical
landscape by pointing to the need to do justice to those who reveal the
public secret of rape everyone was talking about what is generally
known but not usually spoken about (Taussig 1999). The paper maps how
state and non-state law constitutes the public secrecy of rape. Moving
away from the classic definitions of legal pluralism, I begin by recognizing
that customary practices sit at the heart of state law just as non-state law
is mimetic of the form of state law. I argue that state law is experienced
as Kafkaesque when it mimics, tolerates and competes with non-state law
to produce impunity. Equally the mythic, customary or caste order
inscribes a temporality that substitutes, challenges or complements the
temporalities of state law. The production of multiple temporalities of
state and non-state law is constitutive of the public secrecy of rape.
Publicity then does not destroy the public secret by staging an expose;
rather state and non-state law are privileged sites of the production,
negotiation and management of public secrets.

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Towards a Feminist Understanding of Legal Pluralism in India


RIMPI BORAH
Feminist legal theory is reactive to legal centralism and by merely being a
critique of it, paradoxically affirms the paradigms that it seeks to contest.
In searching for ways to correct the imbalance in power relations between
men and women, feminism has either given prominence to the state as
the medium through which to achieve change or expressed doubts about
the likelihood of success through law. In both cases, feminists have
conformed chiefly to legal centralism, that is, the view that the state is the
sole source of law. There has been little feminist theory which has
deliberated on enduring structures of power embedded in other normative
orders such as the lineage, the clan or groups engaged in the informal
sector of the economy which legal centralism refuses to characterise as
law. In consequence, other sources which generate law, the ways in which
they secure compliance and their effects have been neglected. This article
tends to argue that to understand the legal world of a woman, it is
imperative to know the reality of the experiences of women with law.

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Non-State Legal Actors and Regulation of Sexuality: A Case Study


of Student Organisation in Assam
BHANUPRABHA BRAHMA
Student activism as an important arena of non-state legal practises is an
important carrier of ideas and is influential in contributing to debates
around politics, environment, economy and social justice. They however
are not primary harbingers of social change. The claim of monopoly over
moral and cultural life of the people made by the student organisations of
the region is reflected by the moral and cultural codes often sought to be
imposed by such organisation on particular communities.
Social control mechanisms are routinely enforced through definitions of
what is normal and natural. Sexuality refers to the total expression of who
you are. It is through the categories of womanhood and heterosexuality
that tries to control gender identities and sexuality. Women depicted as an
emblematic bearer of ethnicity, class, and castes are always vulnerable to
violence. Non-state legal actors such as the student organisations in
Assam reiterate dominant notions of what is good and bad and in the
process regulate sexuality, more often, acting as the guardian of society.
Student organisation is regarded to be an active agent of social change
but the approach in this paper is different. There exists an exclusivist
notion of identity in Assam where all sense of solidarity between different
oppressed groups has given way to a sense of mutual suspicion. This
increasing notion of identity politics in Assam keeps the student
organisation always in a state of fear of losing control and of subjugation
of their own cultural identity. The central problem is that women are
oppressed by moralistic controls on their sexual expression by these nonstate legal actors. Women who suppress their sexuality to avoid
domination are disadvantaged by their socially imposed inability to
appreciate fully a central aspect of human relations. Women who seek
sexual freedom, by contrast, are susceptible to exploitation.
Hence, the objective of this paper is to explore how sexuality is being
regulated by non-sate legal actors such as student organisations in
Assam. An attempt will be made to explore their views towards liberty,
and their perceived notion about gender equality. This paper will map the
emergence of the category of moral policing and evolve a classification of
the forms of moral policing adopted by student groups in Assam. An
endeavour to look at how the agencies of the state such as the police
regulate sexuality in the name of culture, nation or morality, through legal
and illegal means will be attempted, which will be juxtaposed with
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mapping the techniques of humiliation adopted by non-state legal actors


specifically in Assam.

Antagonistic Alliances The Urban Poor and the Slum Law in


Bangalore
KAVERI HARITAS
Dominant notions of legality and illegality have been contested primarily
through the practices of the urban poor in India. There are been different
ways of theorizing these practices as Chatterjees political society
(2004), as Benjamins occupancy urbanism (2008), Roys Subaltern
urbanism (2011) and Liangs porous legalities (2005) to describe the
processes through which state law is contested and re-appropriated in
vibrant ways. These practices challenge dominant legal frameworks that
criminalize urban poor illegalities while valorizing elite illegalities. This
paper looks at the ways in which the urban poor deal with the slum law,
contesting, negotiating and re-appropriating the law in ways that go
beyond the scope of its provisions. Through ethnographic research with
one urban organization in Bangalore, I look at the ways in which a parallel
set of non-state practices guide and direct the enforcement of the slum
law. These practices challenge the dominant hegemonic conceptions of
legalities and illegalities allowing the urban poor to penetrate the pores of
the slum law, enabling them to participate and claim redistribution from a
legal machinery that is otherwise largely distrusted. While this has been
viewed positively as an instance of participation and citizenship as
proposed by many, I argue that these practices also come with their set of
problems, of transparency, representation and hierarchies within urban
social movements as also facing a risk of co-optation by the state.

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The Justice of Healing


SMITA TEWARI JASSAL
This essay based on anthropological fieldwork in north India, focuses on
on-going practices at specific healing shrines to examine how concepts of
justice are understood and invoked. As alternatives to the kind of justice
that may or may not be accessed through litigation in government law
courts, the locations identified here have evolved primarily as sites to
dispel feelings of hopelessness for those requiring redress through judicial
intervention. While the cases are embedded in unequal land and power
structures and often cannot be resolved for various reasons, the near
impossibility of redress on the temporal plane is compensated for by the
potential for closure through mental and spiritual healing in the shrines
(dargahs), the "courts of saints". The presentation examines the manner
in which concepts of justice and a judicial vocabulary are invoked and
understood, offering visitors relief and succour. In an effort to emphasize
this culture's specifically Islamicate character, neither Hindu or Muslim,
but associated with a distinctive cultural evolution in the south Asian subcontinental context, recent scholarship has elided over experiences and
perceptions about exclusion from justice, which is what lends increasing
relevance to, and accounts for, the phenomenon's appeal.
Moreover, concerns about the drama of possession at shrines has tended
to deflect focus, obscuring deeper and more problematic issues relating to
unresolved property disputes in a word, dispossession. How women on
the margins who are rarely in a position to own land and having little
access to productive resources are nevertheless implicated in these
disputes, forms an intriguing layer I seek to examine.
Based on ethnographic fieldwork conducted in Jaunpur district between
2012-2014, I ask about the extent to which a meaningful form of justice is
accessed in this way, the nature and scope of the 'alternative' it offers,
and how experiences of exclusion and lack of access to the formal justice
systems of courts, as well as village and caste councils, are compensated
for, as a result. What might be learnt from the phenomenon about the
gendered nature of property disputes, women's access to land and other
productive resources? Apart from the gendered nature of access to justice,
the paper seeks to intervene in the literature on gender disparity within
households, to enquire how the latter surfaces in contexts of dispute
resolution, the specific role expectations about men and women, as well
as their subversion. The paper also examines the implications of these
processes for children.
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My presentation asks how in subjecting oneself to this culturally accepted


form of practice, women may assist in the creation of meaning. How do
women offer levels of comprehension of loss, and a range of tragic and
traumatic occurrences that may otherwise remain incomprehensible? Fore
grounded is women's capacity for meaning making harnessed by the
familial unit on the one hand, and facilitated by the shrine context on the
other. Womens involvement, rationalization, as well as active agency, are
central to my enquiry.
Further, while such healing practices are significant in themselves, our
context raises questions about perceptions of inaccessibility or
inadequacy of justice for the marginalized. A secondary set of questions
raised by the ethnographic evidence then, relates to the conflation of
justice with healing. It opens up potentially powerful insights about how
people understand and collapse the rigidities of "Hindu" and "Muslim". As
these are processes to which people willingly submit, such evidence is
necessarily to be understood in dialogue with people's notions of a shared
past.

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The Interplay of Customary and Statutory Law through


Municipalisation in Aizawl, Mizoram
LALITHA KAMATH AND SMITA WAINGANKAR
The 73rd and 74th Constitutional Amendments largely do not apply in the
North East region; instead a significant level of governance autonomy was
written into the Sixth Schedule of the Constitution for incorporating tribal
communities in these regions into the Indian Union. The most
decentralized unit of governance in Mizoram, therefore, have been Village
Councils that are animated by a mix of customary and statutory laws, and
(cultural) norms and regimes of rights alternative to those of the market
and private property. Till recently the state didnt have urban local
governments but this changed with the introduction of the Jawaharlal
Nehru National Urban Renewal Mission (JNNURM) which made funding for
infrastructure conditional on undertaking urban governance 74th
Constitutional Amendment reforms. If we understand governance
structures to serve as not only administrative and political units but with
cultural content, what sorts of resistance and subversion is seen in
response to the long arm of the state and state policy via JNNURM? And
how are customary laws, rights and practices getting re-worked through
the constitution and operation of the newly formed Aizawl Municipal
Council?
The paper examines the interplay of new institutions (Aizawl Municipal
Council) and regimes of rights with traditional structures (local councils,
earlier called village councils). It focuses specifically on practices and legal
provisions of inclusion/exclusion that have proved contentious, such as
womens reservations in the new Mizoram Municipalities Act, property tax
assessment and state provided affordable housing.
The paper is based on detailed interviews (of elected leaders, community
based organizations and state and local government officials) and archival
analysis conducted by the authors over the course of October 2013March 2015.

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Lack of consensus: Khap Panchayats and State Law


TARUN KATTUMANA
The paper aims to analyze tensions between Civil Society, State Law and
Khap Panchayats. The troubled relationship is understood as the product
of a complex understanding of consensus within the Indian constitution
along with a problematic coming together of liberal theory with
democratic theory. The paper also aims to arrive at conditions for the
possibility of effective dialogue and internal reform of said institution and
its practice. In particular, the paper aims to articulate, given the nature of
Khap Panchayats and its practice, how the state can intervene and
dialogue effectively so as to arrive at reform of the institution.

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Interrogating the Interface of Gender, Modern Legality and


Traditional Customary Law: A Case Study of Santhal
APARAJITHA RAJA AND BIRENDRA KUMAR
The Indian state presents itself as the quintessential post-colonial state
which is continuously imagining and re-imagining its nature and scope at
the interface of tradition and modernity. One of the major zones of this
kind of negotiation occurs in the legal framework where various
components like democratic constitutional law; community based law;
religious personal laws are engaging and negotiating with each other
within the framework of the universal modern state structure. This
universality is sought to be achieved through a process of accommodation
and representation of different ethnic groups, indigenous communities,
caste and gender. There are many types of indigenous community in India
which have their own customary laws along with community values. These
laws in tandem with the particular values operate in a complex terrain of
the social, political and economic structure. India after independence
operationalized the modern constitutional state structure based on the
philosophy of social, political and economic justice. The Indian constitution
is a modern document that uses an affirmative language of
enfranchisement, equality and liberty. The constitution came with the
promise of ensuring emancipation and empowerment irrespective of a
persons particular caste, class, gender, religion, region, location. However
this modern project of the Indian state could not fully take-off when faced
with the complexities of the pre-existent multiple form of organizing,
operating and disciplining of the society.
This paper is an attempt to engage with the particularity of the experience
of the gendered citizen who is at the intersection of the modern law with
the community based customary laws. In India there are many indigenous
communities of which the third largest is the Santhal, which is a
homogenous community. The Santhal community has its own particular
customary law which governs them in all aspects of public and private
life, especially the rights and access to resources. The modern state also
has its set of universal laws which deals with the issue of rights and
access to resources. Both these sets of legal formulations are assessed
as being representative of tradition and modernity which interact and
intersect. It will be interesting to examine the convergence and
divergence of the customary law and modern law particularly in their
engagement with the womens question.

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Informing the Contemporary through the Mythic: The Bizarre


World of Assisted Conception
ANINDITA MAJUMDAR
At a recently concluded exhibition on The Body in Indian Art (14 March
7 June 2014, National Museum, New Delhi, India) a section of the exhibit
showcased images and sculptures from Indian art on miraculous births.
The concept note for the exhibit states:
The birth stories of Gods and Heroes across different religions are
miraculous or immaculate conceptions. The Quran describes the birth of
Mary as a boon resulting from an ageing mothers prayers who promises
to dedicate the child to the service of God. The Jain Tirthankaras choose
which parents to be born to as a result of the accumulation of good Karma
from their previous lives. The Boddhisattva Siddhartha [Buddha] entered
his mother Mayas womb in a dream and was born to predictions that he
would renounce the world. Prophesies foretold the birth of Krishna
compelling his parents to give him up for adoption so that he could fulfil
his predestined destiny. Sivas son Kartikeya was born of many mothers
and Parvatis son Ganesh was mysteriously conceived in Shivas absence.
All of these stories highlight that each religion gives importance to the
miraculous nature of birth, and make clear that no single configuration
defines or suggests the norm of an ideal family.
The same myths are resurrected in conversations on the Draft Guidelines
for Assisted Reproductive Technologies in India. The Indian Council of
Medical Research and the medical community seek to reify mythology by
resurrecting it in contemporary practice such as in-vitro fertilization and
commercial surrogacy both of which involve asexual, assisted
reproduction. In case of commercial gestational surrogacy, a supposedly
multi-billion dollar industry, the practice of incubating artificially induced
pregnancies in the bodies of Indian women belonging to lower socioeconomic groups the mythic parallels sought to legalize the practice
lead to questions regarding legitimacy and law itself.
What form of legitimacy is sought from tales and stories that mirror
contemporary practices of asexual reproduction? What form of authority is
being channelled here? Is its divine character an easy reference point for
practices that defy any form of explanation? More importantly, how does
medicine, medical practice and medical regulation intersperse with
mythology and religion to understand its place in the world?
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In this paper I analyse some of the myths of immaculate conception that


continue to mark our popular imagination especially within the Hindu
pantheon to understand how and why they continue to inform
contemporary practices of law making and granting legitimacy. In this
process, cultures collide and interact in ways that become part of larger
social dialogues regarding emerging families and identities. Assisted
reproduction becomes enmeshed with mythology and religious discourse
to position itself as both acceptable and legitimate. Drawing from
emerging analysis of IVF cultures and medical anthropology, this paper
positions its findings within the contemporary world of politico-religious
law making that seemingly continues to draw its inspiration from the
divine.

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The Making of the Legal Subject: Peasant Litigants in Early 20th


Century Garhwal Himalayas
RASHMI PANT
The credibility and effectiveness of non-state systems of law was
undermined when property disputes were brought under formal
adjudication in early twentieth century Garhwal Himalayas. The
application of generalised rules, which were the hallmark of modern
adjudication, was carried out in ways that did not give sufficient ground to
the practical and particularistic logic in which familial compromises were
reached within peasant communities. This reification was as true of
Custom as it was of Hindu Law.
The difficulty of proving alternative claims was compounded by the refusal
of colonial law to recognize Contract as a valid mode of social regulation
among colonial people, more so if they were peasants operating outside a
market context.
However, the displacement of non-state processes did not mean the
disappearance of ethico-normative life worlds. By reading the litigant
narratives in property disputes, I try to reconstruct the normative from
their description of arrangements and agreements made in family forums
and panchayats. The language of local likhats, as well as formal legal
deeds, of transfer, sale or gift executed by them, is steeped in both
normative and contractual formulations.
I argue that such normative frameworks continued to guide peasant legal
subjects. Recognisably ethical goals resurface in the narratives of
litigants, although they strategically represented them in forms admissible
in formal Law.
However much these narratives are cross cut and dominated by the
judicial voice and its support of patrilineal inheritance as the sole claim to
property, they constitute a rich and polyphonic dialogue whose concerns
reflect a lifeworld in which other modes of property sharing were
permitted and tolerated.
When the colonial magistrate accused them of being manipulative,
scheming and colluding to defeat the rule of inheritance, he did not
understand that these peasant men and women had learned to work to
pursue old ethically valid goals through new laws and processes.

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In and Outside the State: Legal Conceptions and Juridical


Practices among Muslims in India
NESHAT QUAISER
This essay makes an attempt to explore critical issues surrounding the
intersection of states constitutional legal edifice and Muslim personal law
based on sharia law (the body of Islamic law) as practiced by Muslims
adhering to various schools of jurisprudence in contemporary India. It
provides a critical examination of simultaneity of the legal practices
related to state and sharia, and the theoretical and practical implications
that this simultaneity produces. These concerns are explicated through an
examination of Darul Qaza (Islamic Courts) to know the nature of conflict
between the state laws and the Islamic law adjudicated through Darul
Qaza. The essay, in the process examines Darul Qazas catchment area;
its constituency; and economic, educational, caste and regional (urbanrural) background of people who avail the services offered by Darul Qaza.
Although the sharia and Darul Qaza are both apparently ontologically and
epistemologically outside the centralised state legal framework and the
state constantly strives to subsume them under what is called common
civil code, yet the essay examines how the non-statist sharia and Darul
Qaza have the potential to take on the characteristics of statist law and
court, and could produces a repertoire of petrified meanings to effect a
world-view to sustain relations of domination in a given situation.
The essays, lastly takes into account the dispersed legal notions and
practices, which have their own ways of articulation in everyday life,
outside the centralised legal/juridical normative structures of the two
domains of law. There is a notion of Justice, which is quite dispersed and
differentiated that functions as unconscious guideline. Such legal
practices are against legal epistemological absolutism that causes neat
binaries, which in turn produce neat normative legal structures.
Legal practices are intrinsically linked with society and social relations in a
given situation in their historicity. Thus, any examination of a religiocultural specific legal practice needs a wider perspective. This essay
examines the issue under discussion within the framework of law, society,
culture, politics and history.

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Complexities of Human Rights & Development: Comparing


Victims, Families & Lawyers in Indian State & Non-State Justice
Processes
TAMARA RELIS
This paper draws on a new book on human rights and legal pluralism in
India, entitled, The Purchase of Human Rights: Standards And Legal
Pluralism In The Global South (Oxford University Press 2016, forthcoming)
and forthcoming article The Unifying Benefits of Studies in Legal
Pluralism: Examining Local Actors Perspectives in The Indian
Subcontinent (Journal of Legal Pluralism and Unofficial Law, 2016,
forthcoming). The manuscript is grounded in interpretive theory and is
based on the discourse of victims, their families lawyers, judges and
panches involved in state courts (civil and criminal as well as court-linked
mediations known as lokadalats) and non-state justice processing (NGOs,
panchayats and nariadalats) of human rights violation cases of violence
against women. The dataset is in seven languages and covers eight states
of India. It includes 400 participant observations, interviews and
questionnaires with victims (74), accused (46), family members (30),
lawyers (90), judges (32) and non-State justice arbitrators/mediators (48)
known as panches.
Relatively little legal scholarship bases its analyses on the discourse of the
subjects of international human rights law and particularly those actually
involved in human rights violations cases in the developing world in the
context of legal pluralism.
Utilizing contextual and discourse analysis, the paper compares human
rights and case planning discourses of Indian lawyers for plaintiffs and
defendants, with victims of human rights violations as well as their
perceptions of the nexus between state and non-state law in relation to
their cases. In so doing, the paper elucidates the effects of actors social
contexts on their case decision-making processes. These social contexts
are strongly infused with tradition, culture and religion and include
networks of family, kin, and community. These networks include social
norms, exert influence and affect actors understandings, attitudes, and
conduct in relation to human rights issues.
Through the lens of legal pluralism, the paper further shows how we can
more clearly assess not only realities on the ground in terms of the actual
workings of transnational human rights laws and domestic laws in
compliance (e.g. PWDVA), but also the impact and internalization of these
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laws by those whom they are designed to protect. Consequently, the


paper argues for greater acknowledgement of the limits of laws
capabilities, and the power of informal laws including socio-cultural and
religious norms operating on the ground.

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Trial and Terror: UAPA in Courts


MANISHA SETHI
In September 2001, just days after 9/11, the government of India declared
Students Islamic Movement of India (SIMI) to be an unlawful
organization. Within a week of banning SIMI, hundreds of cases were
booked against young men who had been associated with SIMI before its
ban; or had known SIMI members; and sometimes just young men who
could be shown to be members of the organization.
SIMI was banned under the Unlawful Activities Prevention Act (UAPA) an
act promulgated originally in 1967, and since then amended several times
over. At the heart of UAPA are the twin arteries of membership (of
unlawful organizations) and conspiracy (of furthering the activities of the
unlawful organization). Both, membership to an organization that no
longer exists legally, and nebulous charges of conspiracy are notoriously
difficult to pin down. Seizure of banned literature and confessions thus
form the bulk of the evidence. While many UAPA trials end in acquittals,
albeit after years of incarceration, many conclude in convictions, despite
lack of evidence and despite obvious violation of procedural norms by the
investigating agency. The war on terror often becomes an excuse for
lowering the burden of proof and eroding the due process of law.
This paper examines the workings of this anti-terror law in the courtrooms
and in the Tribunal that reviews the ban on the organization every two
years.

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Parent as Legal Subject in Customary and Modern Hindu Law


PADMAPRIYA SRIVATHSA
Hindu law governs about 800 million people in India and the term Hindu
is used as a default category to include persons who are not Muslim,
Christian or Parsi. With the arrival of the British as colonizers, pre-modern
Hindu jurisprudence was gradually replaced by modern liberal principles,
leading to the creation of Anglo-Hindu law. Several common law
principles, such as restitution of conjugal rights and welfare principle,
found their way into a traditional legal system. This paper traces the
creation of the parent as a gendered, economic and legal subject in this
body of law, especially during the years of transition from the colonial to
the post-colonial regime. Further, it analyses the juxtaposition and impact
of customary law on modern Hindu family law and explores possibilities
that can emerge from such juxtaposition in the current social context.

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Transacting Suffering for Justice through Movement and Ecstasy


in Dargahs of South Asia
CHIRAG THAKKAR
Much of anthropological, historical and sociological literature is dominated
by the folk-classical distinction, magic-ritual split, denigrating and
canonising Sufi culture to superstition, deviance, magic, tribal and folk
practices denying it its specific transgressive, intersectional character.
Such a devaluation of magic, in favour of a universal religious experience,
is also consonant with the devaluation of popular religion by Muslim
scripturalist elites. The logo centric bias of the latter regards Sufism as
degenerate, a view endorsed by orientalists, indologists seeking the
essence of the religion. (Mills: 1998)
This paper reflects and builds on anthropological literature (Basu: 1998,
Werbner: 1998, Bellamy: 2011, Frembgen: 2012, Pfleiderer: 1982, Werth:
1998) on South Asian dargah culture. It attempts to study performative,
affective, poetic and aesthetic aspects of healing rituals associated with
charismatic Sufi and pir shrines in India and Pakistan to explicate
embodied and affective meanings of rituals like hazari and dhamal
performed by suffering bodies in their intoxicated, transactional search for
justice, to transform their psychosocial pain and dukh into maja (joy), for
attainment of aaram, thandapan and halkapan as corporeal experiences,
for seeking judgement or faisla in the courtroom or darbar of the sacred
body of the saint.
I read dargah culture as a social system of negotiating, embodying,
performing and celebrating pain and suffering, and its inversion through
the masochistic surrender of the pilgrims corporeal power to the huqum
or permission of the sacred body. I argue that nomadic, fleeting
arrangements of authority and legitimacy of the liminal, transgressive
culture of Sufi cults, babas, pirs allows a community of sufferers from
different religions, caste, gender and class to communally participate in
and bear witness to and be witnessed by the transformative power of
healing. I shall problematize, when studying hazari through a reading of
Bellamys work (2011) on Hussain Tekridargah in Madhya Pradesh, the
orientalist-syncretic gaze, as well as medico-psychiatric and frameworks
of therapist-client relationship wedded to the Cartesian separation of mind
and body, and argue, instead, for hazari to be seen as a conceptual
category. I suggest that pilgrims be seen as desiring bodies, following
Deleuze and Guattari, in a masochistic power arrangement with the divine
saints body creating assemblages for themselves.

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Jan Sunwai as Alternative Legal Modernity


RAM KUMAR THAKUR
In the proposed paper I intend to explore and study the democratic trends
of Jan Sunwai beyond the institutionalized framework of democracy. Public
hearing in the lifeworld of Indian polity and social life could range from
institutionalized hearing of courts to informal public hearing of
aggrieved social groups. Jan Sunwai on women and Dalit rights and issues
become more important in the context of failure of institutionalized forms
of democratic governance. Jan Sunwai seeks to address the structural
vulnerability of the marginalized groups emanating from trampling,
influencing or moulding scope of procedural forms of rights and justice to
the assured lives of dominant social forces. Most of the times the most
basic of grievances of Dalits, Women, Tribals are not even accorded basic
legal treatment of even a First Information Report (FIR) leave aside court
proceedings. Even when FIR is registered, casteist and patriarchal morality
and practices plays the spoiler by diluting or misrepresenting the case at
the behest of dominant social forces and further if we add onto the legal
squabbles of having the right resources for reports and hefty amount for
the lawyer, the already vulnerable has to wilt out or settle for a
compromise with the exploiter/oppressor. In general most of the time even
a dignified procedural treatment fails: on account of ones structural
location of being a Dalit, women, tribal, poor or being part of minority
religious community. The marginalized sections whenever they have had
interactions with modern/ traditional law or legal mechanisms most often
it was found to be discriminatory, alienating and humiliating.
Further I would like to place public hearing as a context of counter-public
discourse which is radically different from the failed public or unjust public
sphere. This counter public space although amenable to appropriation by
vested sections of civil society groups and NGOs, still out of large scale
mobilization and commitment of the oppressed themselves, the Jan
Sunwai platform becomes spaces where victims of gender or caste based
oppression can share their experiences and speak their heart out to be
heard by the receptive jury members without undergoing any
embarrassment or rigours of inept procedural justice. Thus the first-hand
accounts and narratives of difficult experiences become truths in
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themselves not only for the narrator but also for the fellow audience and
jury. The mistrust based procedural banishment of marginalized hence
finds avenues in Jan Sunwais where new modes of assertions, solidarity
and resistance is forged at every step. In such a platform, the
victims/survivor not only resists in solidarity but also recover in
solidarity. Jan Sunwais as such generates egalitarian aspirations among
women, Dalits, Tribals and creates liberating body language as opposed
to the constrained atmosphere of the panchayats, police stations or
courts. Jan Sunwais therefore offers exciting grounds of interrogating not
only the failure of institutional forms of constitutional commitments and
justice, but also all levels of governance, be it the criminal justice system,
elected representatives of the country, the civil society and the morally
bankrupt middle classes.
Multiple Legitimacies: Justice, Legality and Indigenous Systems of
Law in India
VIDHU VERMA
The thesis that law is open to not just from outside but from within the
system of law itself is central to discourse theories of law proposed by the
German philosopher Habermas in his early writings. Habermas starts with
the thesis that law has a reference to validity built into it and he calls this
laws claim to legitimacy. Relying upon Weber, he argues that the
rationalization of society undermines religious and metaphysical
justifications for law and differentiates law from politics and morality. But
unlike the legal positivists, which include Weber, Habermas wants to
legitimate the procedural requirements the former had found so central to
validate law along with a subjective belief in the legitimacy of existing
procedures. For Habermas, it is the discourse principle that claims
intersubjective agreement by all affected by a legal norm as the basis for
its legitimation. He also introduces the conceptual polarity between sheer
facticity of the law and its normative claim to validity which is caused by
modernization of society. In traditional society there was no gap as social
action was based on conventional morals and mechanical solidarity based
on similar world views. Hence in modernity the unity of law and justice is
eroded as norms can no longer be founded on some kind of a shared
based as in premodern society, neither on god or will of any ruler. Social
integration of people is supposed to be based on positive law in modern
societies.
In 1992, Habermas systematically addressed some of the problems in his
book Between Facts and Norms. Habermas now addresses most
extensively the ways in which modern law can be justified rationally on
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the basis of rights. This conceptualization relies on the argument that both
moral and legal norms are driven to resolve problems of social integration
in the lifeworld. Moral norms are deeply embedded in the lifeworlds of
different communities but lack the coercive power and enforceability of
law. To assure its authority law remains connected to the political system;
hence combine claim to legitimacy and guarantee of legality. Besides
seeking to reconstruct modern law in terms of its relationship to morality
and right, he spends time in connecting law and politics under conditions
of democratic regimes.
As an illustration of the increasing rapidity of legal change, let me refer to
the debates within Indian legal scholarship on the systematization of legal
norms and regulations. Early modern codifications could be conceived of
as authentications and affirmations of pre-existing customary law and
played a major role in transmitting the laws past into the future. The
rationality of many court judgments in postcolonial India on rights of
religious minorities emphasize shifts from the continuity of the past even
though remaining deeply embedded within it. The last two decades has
seen many more changes as legal culture and traditions have been
interpreted in statutes, laws and courts. One of the crucial features of the
present day legal experience is the breakdown in the dominance of the
nation state perspective. In its place what we are witnessing is pluralism
of sources of law and even its legal orders. In this paper, I throw some
light on powers and functions of indigenous legal systems the Khap
panchayats and Nyaya panchayats. Khap is a system of administration
peculiar to the Jat community of Haryana, Rajasthan and UP. Thus, Khap
panchayats constitute a separate legal order which cannot be simply
added to the inherited system of national state centered on independent
fields of law. Khap panchayats ignore the distinction between public and
private law and develop a law without a state, even as they receive new
impetus from the revolution in information and communication
technology. All this affects the laws surface of explicit normative material
but also its bare life. The legal culture from which actors draw preunderstanding is rapidly going beyond the nation-state perspective as its
memory becomes shorter than before. Democratic law is needed to
guarantee that norms can coordinate social action and secure integration
in view of the preservation of diversity of values in plurality of life-worlds.
Indeed these problems have led to periodic legal reforms that have led
many to demand that the Indian legal system return to its traditional roots
specifically by the creation of panchayats. Created in the 1950s, Nyaya
Panchayats have the judicial power to deliver justice in villages falling
under their jurisdiction. They are mainly involved with civil jurisdiction and
they have proper rules and regulations under the law. The Law
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commission in its fourteenth report, made the point that disputes before
them, become easier to secure when the person clothed with the
authority of deciding them have the advantage of knowing the disputants,
the subject matter of the dispute, the way in which the dispute arose and
other interesting facts relating to them.
As global India witnesses assertion by increasing variety of groups, each
having its own distinct traditions, values and world views, more conflicts
are reached by agreements on contestable matters and not on conditions
in which a shared basis is possible. To what extent can practices in these
societies bridge the growing gap between discrimination, legitimation and
actual norms? What is the role of customs and their effect on law and
justice? Are Dharmashastras a social norm making medium for Indian
society? Are Dharma problems different from law problems? Addressing
some of these questions, the paper sets out to critique Habermas notion
of law in the context of legality and legitimation in India today. Habermas
interventions and revisions are welcome but the epistemological attack on
tradition of modern legal theory undermines the basis for reform. Even
though Habermas sees facticity as factual norms that have status of social
acceptance in tension with social validity, it is unclear whether they can
be reconciled through democratic discursive will formation. The
conceptual tension between facticity and validity that action norms are
valid to those who could agree as participants in rational discourse, are
major challenges to be overcome if information and reason need to be
seen in the public space as constituted by illocutionary obligations.

Indias Alternative Legal Modernity or the Bhutas Two Swords of


Justice
MICHAEL DUSCHE
The literature on legal pluralism in India abounds with examples of how
communities or corporate groups settle their disputes in a consensual
manner without resorting to violence in the enforcement of their rules.
Disciplining methods reach from social boycott to the imposition of fines.
The important thing is that all parties accept these settlements. In case
members are not satisfied with the rulings of their own authorities, they
can resort to the state courts to settle their issues. These are the stories
we hear from village panchayats and slum dwellers associations, tribal
councils and caste councils. All of these use force to a certain extent and
the question is whether this is legitimate. All over India, however, there
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are also some very peculiar examples of legal practice which completely
refrain from using force. The enforcement of laws is completely delegated
to beings like daivas or bhutas, devtas or jinns, who are believed to share
this world with us. The important thing is that this is essentially a pre-axial
belief system, i.e. that there is no reference to a transcendent world.
Perpetrators are brought to reason because they share the belief in these
sprits, which are known to be capable of inflicting great harm to the
perpetrator and his family. Looking at the arms of the Bhutas of Dakshina
Kanara, we are reminded of the Christian doctrine of the two swords of
justice. In the case of a post-axial religion like Christianity, the divine
sword will be applied only in the time after times. Meanwhile the temporal
sword is used by the secular authorities. In the case of the Bhutas,
matters are slightly different. Since the spirits are among us, divine justice
does not have to wait for a time after times. It can be executed in this
very world and age. Hence there is no need for worldly powers to wield
the temporal sword of justice. They can completely leave matters to the
gods. That this is not a tale from One Thousand and One Nights is evinced
by four local phenomena that in their combination and regional
distribution point to a pan-Indian and community-transcending
phenomenon. From the Golu Devta of Chitai to the Bhutas of Dakshina
Kanara, from the Hegade of Dharmasthala to the Jinns of Feroz Shah Kotla,
all over India spirits are petitioned for justice. I will argue that these spirits
are efficacious social institutions that help catalyse in the consciousness
of the perpetrator a sense of justice that compels him/her, by the subtle
force of conscience, to comply with the demands of justice.

Informal Legal Practice in Women Jamaats of Tamil Nadu


Screening of Invoking Justice by DEEPA DHANRAJ
In Southern India, family disputes are settled by Jamaatsall male bodies
which apply Islamic Sharia law to cases without allowing women to be
present, even to defend themselves. Recognizing this fundamental
inequity, a group of women in 2004 established a womens Jamaat, which
soon became a network of 12,000 members spread over 12 districts.
Despite enormous resistance, they have been able to settle more than
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8,000 cases to date, ranging from divorce to wife beating to brutal


murders and more. The filmmaker Deepa Dhanraj follows several cases,
shining a light on how the womens Jamaat has acquired power through
both communal education and the leaders persistent, tenacious and
compassionate investigation of the crimes. In astonishing scenes we
watch the Jamaat meetings, where women often shout over each other
about the most difficult facets of their personal lives. Above all, the
womens Jamaat exists to hold their male counterparts and local police to
account, and to reform a profoundly corrupt system which allows men to
take refuge in the most extreme interpretation of the Quran to justify
violence towards women.

Justice in Vacanas
A Performance by VIDWAN SHRI MADHUR P BALASUBRAMANYAM &
TEAM
Vacanas are rhythmic writings in Kannada which emerged and developed
during the 11th and 12th centuries. Starting from Allama Prabhu ,
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Basavaa , Mdra Channayya , Akka Mahdevi and Channa Basavaa,


hundreds of Vacanakras developed this genre of writing over many
decades. Vacana Shitya arose as a rebellion against the rigid and brutal
practices of caste system, social and gender inequalities prevailing in the
society. The speciality of Vacana lies in the simplicity of its form, adopted
by the writers with the intention of reaching out to the masses with
profound philosophical ideas on creation, being, thoughts on justice and
equality, transcendental experiences in the path of moksha and Bhakti.

Water Reforms in Karnataka and the question of Democracy


KSHITHIJ URS
Achieving good governance has been the determined path of
development since the late 1990s. This dominant discourse posits liberal
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democracy, capitalist mode of economic growth and human rights as


being complimentary and mutually dependent and asserts that with the
right alignment of institutions, the promotion of good governance will
strengthen the political voice of the civil society, empower the poor and
make governance establishments more accountable. This perception
portrayed good governance as a theory that intended to go beyond the
debilitating effects of the earlier structural adjustment agenda which
emphasized pro-market reforms in developing countries and takes a
depoliticized approach towards restoring the sovereignty of the Global
South and put them back on the development path.
Because of this intrinsic ethical strength of the development discourse
coupled with the apparent socio-economic sensibility, good governance
has enriched the imagination of development theorists, international
development agencies, policy-makers and NGOs alike and contributed to
the reinvention of the development assistance industry. Finally, there
appeared to be a convergence of the participatory development aspect of
community projects of the 1980s and the 1990s and rights-based
approach of movements seeking to strengthen the sense of agency of
marginalized communities and influence wider decision-making processes.
But there are reasons to suspect that the capacity of the discourse to
promote participatory democracy, alleviate poverty and generate
equitable growth has been highly inflated. Based on more than a decade
of research and experiential learning on the effects of good governance
based reforms on the urban water sector in Karnataka, this the
presentation will demonstrate how the type of democracy that the
discourse has promoted is not in the least emancipatory especially when it
creates situations where people have rights they cannot exercise,
participate within a preordained policy framework, vote without being able
to make a change and a supposed political equality which conceals
extremely unequal power relations.
The presentation offers a crucial challenge to the contemporary
hegemonic development discourse on how despite the assertion of good
governance, the deepening of democracy and the realization of human
rights are not congruent with market oriented reforms.
Kshithij Urs highlights three aspects of the context on which urban water
reforms in Karnataka have been premised to make the point. The first is to
critically engage with the claim that good governance can promote both
capitalistic economic growth and participatory democracy. This policy
instruction makes it mandatory for democracy to organize a political
consensus promoting capitalism if it has to be termed good.
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The second is to describe how the reforms are constructed to insist that
commercialization and privatization of water services, whether private or
public, lead to realization of the right to water by the poor and empower
them to exercise their client power to make service providers accountable,
triggering a virtuous spiral of participatory democracy.
The third aspect is to highlight how the dominance of the good
governance discourse in the water sector is being resisted and to explore
opportunities and limitations offered by this struggle in the deepening of
democracy and the emergence of new forms of water governance that is
socially just, culturally sensitive, economically prudent and ecologically
sustainable.

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The Ultimate Caste Sanction Faces the Court: Excommunication in


21st Century Tamil Nadu
ZO HEADLEY
In this contribution, I will explores the wider topic of the clash of
paradigms between state law and caste norms in the field of arbitration
and judicial practices through specific cases studies of recent court cases
of excommunication in Tamil Nadu.
Excommunication, or suspension from caste, is the severance of an
individual religious, social and economical relations of her/his birth group.
Losing ones caste, or rather falling from ones caste, to borrow the
Sanskrit term employed in the earliest description of this phenomenon,
constitutes is the most severe form of punishment handed down by caste
panchayats in Tamil Nadu. The changing perceptions and legislations over nearly two centuries- of the rights of castes to exclude their
members reveals the ever complex relationship between the state
judiciary and caste society: for the colonial period, that of the complexity
of legally accommodating caste autonomy and civil rights; during the first
four decades post-Independence, that of the confusions and tensions
generated by the primacy of religion in the understanding of custom and
personal law and finally, over the last two decades or so, a new chapter
in the perception of caste panchayats and their sanctions is being written,
that of the obnoxious practice of imposing punishments, which this
contribution will explore.
Through the study of a number of recent cases brought by
excommunicated individuals and families to the Madras High Court, as
well as a scrutiny of their media coverage, I will try to unravel the debate
and tensions surrounding the recent criminalisation of the ultimate caste
sanction.

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