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Indian Lawyers and Political Modernization

Observations in Four District Towns

Published online by Cambridge University Press:  01 July 2024

Peter N. Rowe
Peter N. Rowe*
Affiliation:
Smith College
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This paper reports some preliminary findings on the role of lawyers in the modernization of Indian society. Lawyers in district towns were interviewed for the purpose of discovering what contribution lawyers make to political socialization appropriate to a democratic polity.

Type
Research Article
Information
Law & Society Review , Volume 3 , Issue 2-3: Special Issue Devoted to Lawyers in Developing Societies, with Particular Reference to India , February 1969 , pp. 219 - 250
Copyright
Copyright © 1969 by the Law and Society Association.

Footnotes

Author's Note: The theoretical questions which stimulated the research reported here were suggested by M. Galanter, Hindu Law and the Development of the Modern Indian Legal System (unpublished paper prepared for the annual meeting of the American Political Science Association, 1964) and B. S. Cohn, Anthropological Notes on Disputes and Law in India, 67 Am. Anthropologist 82-122 (1965). The field work, carried out in spring-summer 1966, was supported by a Ford Foundation grant administered by the Four-College Committee on Asian and African Studies, Amherst, Massachusetts.

References

1. R. Young, American Law and Politics: The Creation of Public Order 21 (1967).

2. H. L. Levy, Lawyer-Scholars, Lawyer-Politicians, and the Hindu Code Bill, 1921-56 (included in this issue).

3. Another approach to a better understanding of the confrontation between traditional law-ways and the modern law is to investigate village clients. Systematic description of litigants in district and munsif courts would yield important information on the role of law in Indian modernization. Who comes to the town courts from the village? What does the villager hope to achieve by involving himself with the modern courts? Is the adversary process perceived as a modality for realizing justice? What images of the modern law-givers are carried back to the village?

A project such as is suggested here was planned at the Indian Law Institute, but has not been completed. Sociologists and law students involved are attempting to determine the extent to which modern law notions have penetrated the village and the degree of congruence between the value premises of the new legality and those of customary practice. An interpretation of some early findings was offered by G. S. Sharma, Changing Perceptions of Law in India (unpublished paper delivered at the XXVII International Congress of Orientalists, Ann Arbor, August, 1967).

4. This guess was arrived at with the help of Professor Cora DuBois, Harvard University, who reviewed all the names in the Sambalpur Bar register.

5. Because Bhopal was the capital of a Muslim princely state before independence and has a large Muslim population, several of the more successful senior advocates there were Muslim.

6. T. G. Bastedo, Law Colleges and Law Students in Bihar (included in this issue). C. Morrison, Social Organization at the District Courts: Colleague Relationships Among Indian Lawyers (included in this issue 1968).

7. 1 Law Commission of India, Fourteenth Report: Reform of Judicial Administration 194 (1958).

8. Cohn, supra Author's Note, at 104.

9. In Bhopal there were several Punjabi Muslim lawyers who had their undergraduate educations in Karachi or Lahore and their LL.B.'s from Aligargh, who had moved south after 1947.

10. Most advocates said that their practice included clients who came from distances of up to 100 miles, but they also said that the average village client lived within a 30-50 mile radius of the district headquarters.

11. It was reported to me in New Delhi that the widespread use of touts and the rise in judicial costs that this created had become a matter of sufficient concern so that certain district bar councils had passed resolutions providing for proceedings whereby persons named as touts by a stipulated number of advocates would be listed and then forbidden to enter court premises. No one vouchsafed an opinion as to how effective such a regulation would be.

12. The State v. Zia Karim, C.R. Case No. 1400, Sambalpur, 1964.

13. The independent Government of India has not found it necessary to change all the old forms. Charge sheets require certification by the station officer that male criminal suspects who were not European British subjects do or do not bear marks of whipping. I found one charge sheet, that of a man accused of culpable homicide, where the response was in the affirmative.

14. 2 Law Commission of India, supra note 7, at 885-95, 914.

15. S. S. Khera, District Administration in India, 211-12 (1964).

16. In Bhopal I was incorrectly told that the nyaya panchayats had been established only in 1963 in Madhya Pradesh and that the Act had not been implemented significantly yet. If the statistics of the Law Commission's Fourteenth Report are to be trusted, it is true that in Madhya Pradesh and Orissa the volume of business of the nyaya panchayats has been lower than in some other states (Vol. II, Table IX, 918-919), but in 1953 there were 1,160 civil suits instituted in village courts in Madhya Pradesh and in 1954, 607 suits. In 1953, panchayat courts in Madhya Pradesh disposed of 27,484 criminal cases. See 2 Law Commission of India, supra note 7 at Tables IV and V, 897-99. In Orissa, lawyers thought the panchayati adalats had functioned since 1958. In fact, in 1954 adalati courts handled 1,730 criminal proceedings and disposed of 948 civil suits. However, informants in Sambalpur were aware of the jurisdictional limitations on village courts, that munsifs had the power of revision of any civil decision, and that the subdivisional magistrate could cancel or modify the order of the adalati courts in a criminal proceeding or order a retrial.

17. The Law Commission reported that in Madhya Pradesh in 1958, “about 31 per cent cases the orders of the Nyaya Panchayat were quashed by District Judges [sic].” 2 Law Commission of India, supra note 7, at 1052.

18. M. C. Pradhan, The Political System of the Jats of Northern India (1966).

19. For example, census surveyors of Vilpatti village, Madras (population: 1,127) estimated that only 5% of disputes over minor thefts, property trespass, dowries, adultery, divorce, and “misbehavior” were referred to the regular law courts or even to the police. When cases were referred to the courts it was because the unity of the caste council failed or the decision could not be enforced because one party to the dispute refused to sacrifice his personal interest to the cause of group solidarity. It was reported that even on matters of inheritance, people were not interested in engaging in litigation to get what they felt was their rightful share of property and rarely thought of the law courts even though a munsif's court was only five miles away at Kodaikanal. 9 Census of India, 1961, pt. VI, Madras, Village Survey 5, 74 (1965).

20. M. Galanter, supra Author's Note, at 29.

21. For histories of the development of particular caste associations, see O. M. Lynch, The Politics of Untouchability—A Case Study From Agra, India (unpublished paper prepared for the Seminar on Social Structure and Social Change. University of Chicago, 1965) ; L. I. Rudolph, The Modernity of Tradition—The Democratic Incarnation of Caste in India, 59 Am. Pol. Sci. Rev. 975-89 (1965); and L. I. Rudolph and S. H. Rudolph, The Political Role of India's Caste Associations, 33 Pacific Affairs 5-22 (1964).

22. Information on the Kulta Mahasabha was supplied by an advocate in Sambalpur, an official of the association. He provided copies of conference reports and resolutions.

23. Elsewhere in India prosecutions have taken place, of course. See M. Galanter, Changing Legal Conceptions of Caste (unpublished paper prepared for the Seminar on Social Structure and Social Change, University of Chicago, 1965).

24. Advocates who were Communists or left-wing Socialists had thought most about the relations between law and society and were the most vocal about deficiencies in the present legal order. In particular, they felt that property rights and law protected the landowning classes and were a British inheritance which had become outdated in a socialist society trying to achieve a revolution in agriculture. It is interesting to note that Communist lawyers perceived no contradiction in their simultaneous advocacy of communism and a democratic legal system since they conceived only of a parliamentary form of communism. Collectivist practices were somehow to be accommodated within a democratic framework.

25. Of course, many of the dilemmas implied in the lawyers' responses are not peculiar to the Indian legal profession. But the lawyers' attitudes toward themselves may reflect what others think of them. Arthur Von Mehren makes the point:

In societies in which the law in the books does not reflect fairly accurately the community's accepted and operative values, the lawyer tends to be looked upon as a manipulator. Individuals turn to law and to lawyers when their behavior and their values are not those that are generally accepted. The law and the lawyer provide official sanction and support for such deviant behavior. … The politician, the economist, and the engineer remake the society; the lawyer tends to be looked upon as a kind of manipulator or fixer who, in many ways, fails to represent society's basic values and attitudes.

A. Von Mehren, Law and Legal Education in India: Some Observations, 78 Harv. L. Rev. 1180-89 (1965).

26. A. Beteille, Elites, Status Groups, and Caste in Modern India, in India and Ceylon: Unity and Diversity 242 (Philip Mason ed. 1967).

27. This assertion rests on two related assumptions which may not be realized: 1) that use of the urban state courts or their country relatives—the nyaya panchayats—will engender expectations of individual and group satisfaction, and 2) that institutional legitimation results when individuals in conflict situations achieve satisfaction in the courts. Where the effect of the adversary mode of adjudication is to aggravate complicated hostilities in village communities, Indians may prefer to adhere to more traditional arbitral tribunals using consensual techniques to settle their quarrels. The modern goal of justice for the individual citizen may not be felt to be as important as the cohesion and dignity of the group. There are, of course, other structural sources of modernization at work simultaneously in India—the electoral and party system, industrialization and rural community development—which also appear to produce internalized changes in the individual's conception of the political self. Thus, changes in the economic, political and social realms should tend to support the modern legal culture; but we know, too, that modernization processes can mean disruption of community life and individual alienation and we certainly cannot anticipate value changes which will result in the automatic legitimization of contemporary institutions of public authority in India. For a full and excellent discussion of the problems of social change generated by the coexistence of dual legal cultures in India, see L. I. Rudolph and S. H. Rudolph, The Modernity of Tradition, Part III (1967).

28. G. D. Berreman, Behind Many Masks (Society for Applied Anthropology Monograph No. 4, 1962).