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The Pathology of the Indian Legal System

Published online by Cambridge University Press:  28 November 2008

Oliver Mendelsohn
Oliver Mendelsohn
Affiliation:
La Trobe University
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Extract

The Indian court system is by all accounts unusual. The proceedings are extraordinarily dilatory and comparatively expensive; a single issue is often fragmented into a multitude of court actions; execution of judgements is haphazard; the lawyers frequently seem both incompetent and unethical; false witness is commonplace; and the probity of judges is habitually suspect. Above all, the courts are often unable to bring about a settlement of the disputes that give rise to litigation. So great are these failings that the Indian judicial process can reasonably be seen as a ‘pathology’of a legal system.

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Articles
Information
Modern Asian Studies , Volume 15 , Issue 4 , October 1981 , pp. 823 - 863
Copyright
Copyright © Cambridge University Press 1981

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References

1 This work is based primarily on field research in India during 1971–1972, and shorter periods in 1974 and 1980. The core research was a stay of some six months in a village fictionally titled Haripur, in Alwar District of Rajasthan. Haripur is the seat of several magistrates' courts which serve the sub-District, and so presented the opportunity for observation of one of the many hundreds of local court complexes in India. It was also a convenient village for the study of dispute settlement outside the courts. For financial assistance I thank the Indian and Australian Governments, which supported me with a Commonwealth Scholarship in 1971–72, and La Trobe University for a travelling grant in 1980.

2 The sociology of both the British-based legal system of India and indigenous legal processes is at a low level of development. This contrasts sharply with the great volume of commentary on substantive law in the Anglo-Indian courts. The most systematic description of processes in the courts is in Kidder, Robert L., ‘Courts and Conflict in an Indian City: a Study in Legal Impact’, Journal of Commonwealth Political Studies, 11:2 (1973), 121–39;CrossRefGoogle Scholar see also, Kidder, Robert L., ‘Litigation as a Strategy for Personal Mobility: the Case of Urban Caste Association Leaders’, Journal of Asian Studies, XXXIII:2 (1974), 177–91;CrossRefGoogle ScholarKidder, Robert L., ‘Formal Litigation and Professional Insecurity: Legal Entrepreneurship in South India’, Law and Society Review, 9:1 (1974), 11–38;CrossRefGoogle ScholarCharles, Morrison, ‘Clerks and Clients: Paraprofessional Roles and Cultural Identities in Indian Litigation’, Law and Society Review, 9:1 (1974), 39–62;Google ScholarCharles, Morrison, ‘Munshis and their Masters: the Organization of an Occupational Relationship in the Indian Legal System’, Journal of Asian Studies, XXXI:2 (1971), 309–28;Google ScholarKhare, R. S., ‘Indigenous Culture and Lawyer's Law in India’, Comparative Studies in Society and History, 14:1 (1972), 71–96;CrossRefGoogle ScholarGalanter, Marc, ‘The Modernization of Law’, in Weiner, M. (ed.), Modernization (New York, 1966), 153–65;Google ScholarGalanter, Marc, ‘The Displacement of Traditional Law in Modern India’, Journal of Social Issues, XXIV:4 (1968), 65–91;CrossRefGoogle Scholar and the several articles on the Indian legal profession in Law and Society Review, 3: 1–2 (1968–1969).Google Scholar

3Cohn, Bernard S., ‘Some Notes on Law and Change in North India’, Economic Development and Cultural Change, 8 (1959). p. 90.CrossRefGoogle Scholar

4Ibid., pp. 79–93 passim.

5 Kidder, ‘Courts and Conflict in an Indian City’.

6Ibid., p. 122.

7Ibid., p. 123.

8Ibid., p. 136.

9Ibid., p. 137.

10 This study is written on the basis of extended interviews with Jagat Singh and his opponents at the courthouse and in the village itself, and interviews with lawyers and magistrates in Haripur. These interviews took place at various times in the period 1971–1972 and in 1974. A short visit to Haripur in 1980 showed that the conflict was then as bitter as ever.

11 The best (though still limited) account of the growth of Anglo-Indian law is Gledhill, A., The Republic of India: The Development of its Laws and Constitution (Steven & Sons: London, 1951).Google Scholar See also Fawcett, C., The First Century of British Justice in India (London, 1934);Google ScholarBhatia, H. S. (ed.), Origin and Development of Legal and Political System in India (Deep and Deep: New Delhi, 1976).Google Scholar

12 The revenue courts were by definition exclusively concerned with land matters. In the early part of the nineteenth century their juridiction was limited to delinquencies in the payment of land revenue and disputes over revenue liability. (In Bengal and certain other areas these were within the civil jurisdiction.) Later their jurisdiction was expanded and they tended to overlap with the civil courts. On the latter problem, see Whitcombe, Elizabeth, Agrarian Conditions in Northern India (University of California: Berkeley, 1972), pp. 205–34 passim.Google Scholar In the criminal courts, the most common prosecutions since the late nineteenth century (when annual statistical returns became available) have been for physical violence, theft and breach of the peace. To give a random example, in 1876 in the princely State of Alwar (which had a Punjab-style land system and Anglo-Indian courts from mid-century) 4,960 out of a total of 5,913 cases covered by the Indian Penal Code (which does not deal with breach of the peace—this falls under the Criminal Procedure Code) fell into the categories of violence or theft. Reading back from my own field observations and interviews, it would appear that the great majority of these flowed from land disputes. The subject of theft allegation is very often crops on disputed land. Many of the allegations are deliberately false, and there is a steady flow of prosecutions for laying false information to the police. Litigation in the civil courts was classified from the late nineteenth century under three heads: suits for money or movables, rent suits, and title and ‘other’ suits. The breakdown between these categories varied over region and, to some extent, over time. (For changes in the post-independence period, see below.) The permanent settlement areas (mainly the original Province of Bengal) had far more rent suits in both absolute terms and relative to the other categories than did, say, Punjab or Madras. To take one year at random, Bengal in 1900 had 287, 261 suits for money or movables (the former being the principal item), 284, 288 rent suits and 76, 976 cases to do with land title and other matters, making a total of 648, 525. This excludes all appeals and also suits in the High Court and certain minor courts; the figures are from the Report of the Civil Justice Administration for Bengal Province for 1900 (Calcutta, 1901).Google Scholar In Madras, by contrast, only 11, 028 out of a total of 208, 132 suits in 1880 were for rent. Report of the Civil Justice Administration for Madras 1880 (Madras, 1881). While official figures may have been accurate enough, the mode of classification of suits greatly understated the land factor. A very high proportion of the money suits were the functional equivalent of rent suits; they were brought by either full-time money-lenders or farmers cum money-lenders, people who in effect represented simply another tier in the land hierarchy concerned to maximize its share of the profits from agriculture. See the discussion below.Google Scholar For readily accessible material on the pattern of litigation see the Civil Justice (Rankin) Committee Report (Government of India: Calcutta, 1925).Google Scholar

13 For an interesting view of land conflict before the British intervention see Richard, G. Fox, Kin, Clan, Raja and Rule (University of California: Berkeley, 1971).Google Scholar

14Cf.Rudolph, L. I. and Rudolph, S. H., The Modernity of Tradition (University of Chicago, 1967), p. 261: ‘It seems likely that the “rise” in litigiousness was in part a statistical artifact reflecting the transplantation of disputes to a new location where they were easier to record.’ It would seem that these authors pay insufficient attention to the new causes of dispute and hence litigation under British administration of India; see the argument below.Google Scholar

15 Commentary on the village situation prior to British rule is necessarily conjectural; available accounts lack the detail necessary for definitive statement. Nonetheless, an understanding of the ‘timeless’ quality of some of the conflicts observable today can be laid beside scattered comments in early British reports on India and the work of historians of mediaeval India, in order to provide a plausible outline of the pre-British situation. For the Mughal period, there is some useful material in Irfan Habib, The Agrarian System of Mughal India (Asia Publishing House: New York, 1963).Google Scholar

16 The literature on British land policy is very large. Among the most useful are Moreland, W. H., The Revenue Administration of the United Provinces (Allahabad, 1911);Google ScholarBaden-Powell, B. H., Land Systems of British India, 3 vols (London, 1892);Google ScholarWhitcombe, Elizabeth, Agrarian Conditions in Northern India; the various articles in Frykenberg, R. E. (ed.), Land Control and Social Structure in Indian History (University of Wisconsin: Madison, 1969);Google ScholarCharlesworth, Neil, ‘The Myth of the Deccan Riots of 1875’, Modern Asian Studies, 6:4 (1972), 402–21;Google ScholarRichard, G. Fox, Kin, Clan, Raja and Rule;Google ScholarStokes, Eric, The Peasant and the Raj (Cambridge, 1978).CrossRefGoogle Scholar

17Moreland, , Revenue Administration, p. 36.Google Scholar

18 The concept of land as a freely transferable commodity seems to have been largely unknown to pre-British India. During the Mughal period there had been occasional instances of zamindari rights being sold but such transactions were not an ordinary feature of agrarian life. The most common mode of land acquisition seems to have been inheritance, conquest or expansion into vacant lands. See Habib, , Agrarian System of Mughal India, passim.Google Scholar

19See Moreland, , Revenue Administration;Google ScholarCohn, Bernard S., ‘Structural Change in Indian Rural Society 1596–1885’, in Frykenberg, Land Control, 53–121; Whitcombe, Agrarian Conditions in Northern India;Google Scholarand O'Dwyer, M. F., Final Report of the Alwar Settlement (n.p., 1901).Google Scholar

20A magistrate at Midnapore, quoted in Rudolph and Rudolph, The Modernity of Tradition, p. 261.Google Scholar

21 It is well known that in parts of Africa the British courts were heavily preoccupied with matrimonial matters. This was presumably a consequence of the British intervention into domestic relations regarded as uncivilized, in contrast with a general policy of non-intervention in Indian marriage.

22 An official report cited in Cohn, ‘Structural Change in Rural Indian Society’, p. 69.

23 The disparity between formal transfers and dispossession has been remarked by a number of officials and historians, among them Cohn, ibid., p. 89, and Whitcombe, Agrarian Conditions in Northern India, p. 227.

24 For a fuller discussion of the ‘modernization’ of the legal machinery in the late nineteenth century, see ibid., Ch. V.

25 Of 93, 289 rent suits in Bihar in 1914, 92, 494 were for arrears of rent. Report of the Civil Justice Administration 1914 (Patna, 1915). This was a typical figure.Google Scholar

26Benett, W. C. a settlement officer in Gonda, put it thus: ‘The result of all these transactions is the creation of a number of concurrent interests in the same soil.Google Scholar’ Quoted in Whitcombe, , Agrarian Conditions in Northern India, p. 227.Google Scholar

27Cf.Cohn, Bernard S., ‘Anthropological Notes on Disputes and Law in India’, American Anthropologist, 67:6, Pt II (1965), pp. 82–122.Google Scholar

28 The anthropology of Indian law is at a primitive stage of development: Srinivas, M. N., Caste in Modern India (Bombay 1962), p. 118.Google Scholar These comments are based on my own field work and the scattered material in published work. For a summary of the latter, see Cohn, ‘Anthropological Notes’, also, Louis, Dumont, Homo Hierarchicus (Delhi, 1970), pp. 167–83.Google Scholar

29 For example, in Bihar in 1912 there were 56,939 suits for money or movables, 96,508 rents suits, and 22,570 title or ‘other’ suits, making a total of 176,017. The figures for the same categories in 1972 were 22,758, 579, and 17,923, making a total of 41, 260. Source: Civil Justice Administration Report for 1912 and 1972 (Patna, 1913 and 1979).Google Scholar

30 For a guide to the literature on recent land reforms, see Joshi, P. C., Land Reforms in India (Bombay, 1975).Google ScholarThorner, Daniel, The Agrarian Prospect in India (New Delhi, 1976), is still the best introduction to the subject.Google Scholar

31Ibid., 31–51.

32There is still a marked lack of empirical studies of the land reforms. These comments are largely based on interviews with land officials in Bihar and West Bengal, 02–05, 1980.Google Scholar See Januzzi, F. Tomasson, Agrarian Crisis in India: the Case of Bihar (University of Texas: Austin, 1974).Google Scholar

33Civil Justice Administration Report (Patna, 1979).Google Scholar

34There are no available statistics. However, interviews with officials in Bihar and West Bengal in 1980 suggest that there are many thousands of such cases in the High Courts of these two States. Most of them have reached the High Court direct, without appeal from lower courts, by the device of a writ petition. The argument is that there has been a breach of a fundamental right guaranteed by the Constitution. The favourite peg, until it was recently abolished, was Article 31 of the Constitution, the ‘right to property’ clause.Google Scholar

35 This is particularly true of West Bengal, where the Communist Government's Operation Barga (a drive to register the names and plots of sharecroppers) has provoked widespread panic among landholders. Source: interviews and observations in West Bengal, 04 1980.

36This is based largely on discussions with revenue staff and interested parties in Alwar District, 1971–1972.Google Scholar

37 For example, 36, 235 of 98, 730 execution proceedings (40 per cent) were returned as wholly infructuous in Bihar during 1912. Moreover, another 15, 429 cases met with only ‘partial satisfaction’. Source: Civil Justice Administration Report (Patna, 1913).Google Scholar

38 See note 23.

39 For a useful discussion of the problems of police in the countryside see Tomkins, L. I., Report on the Reorganisation of the Police of the Alwar State (Lahore, 1912).Google Scholar

40Gluckmann, Max, The Judicial Process Among the Barotse of Northern Rhodesia (Manchester, 1955), p. 19.Google Scholar

41Kidder, , ‘Courts and Conflict’, p. 123.Google Scholar

42 The size of the profession is quantified and set in comparative perspective in Galanter, Marc, ‘The Study of the Indian Legal Profession’, Law and Society Review, 3:2–3, 1968–1969, pp. 201–17.Google Scholar

43Agrarian Conditions in Northern India, p. 216.Google Scholar

44 ‘Courts and Conflict’, p. 124.

45Van Velsen, J., ‘Procedural Informality, Reconciliation and False Comparisons’, in Gluckmann, M. (ed.), Ideas and Procedures in African Customary Law (Oxford University Press: London, 1969).Google Scholar