Abstract
In Regimes of Legality: Ethnography of Criminal Cases in South Asia, Daniela Berti and Devika Bordia open out an anthropological approach for examining the trajectories of criminal cases in South Asia. Focusing on formal and informal interactions between the various actors in the criminal justice system, the volume draws on ‘rule-oriented’ court records as well as narrative constructions and stories that provide contrasting versions of ‘facts’ at issue—relation-oriented versions embedded in social ties, material considerations and emotions. The latter is particularly evident in the two cases from West Bengal, presented by Srimati Basu, where ‘[w]hile domestic violence was undeniable, and the formal position was to condemn the violence in the strongest terms … the primary focus was on social and economic issues, enforced through professed outrage’ (p. 40). The success of domestic violence as a tool of negotiation, she notes, ‘lies mainly in its own erasure, in the interest of material needs’ (p. 48).
There are other enactments in relation to marriage—notably the right to marry. Pratiksha Baxi traces ‘masculinist juristic genealogies’ (a term borrowed from Peter Goodrich) through a close look at one case from Gujarat, which demonstrates the manner in which state law holds in custody a young woman who categorically denies rape by the man she was in love with and ultimately got married to him (p. 54). Providing a graphic account of the court, the prosecutor’s chambers, hospital narratives and experiences of custody, she sets out a complex discursive frame that travels between good love and bad love, rape and marriage, desire and seduction, criminal accused and victim and the repetitive narrative of custodial violence that represses love dispersed at various sites—the family, police station, hospital, jail and state-run home for women (p. 73).
The juxtaposition of the written and the oral, and the contradictions between judicial and extra-judicial deliberations and discussions set off Daniela Berti’s account of a narcotics case in Himachal Pradesh. The interplay of truth and untruth, truth and lies and the lack of fit between the written record and informal discussions seem to suggest that ‘the perception of truth and lies in such contexts relies partly on the performative skills of the legal professionals … as well as on the witnesses’ guile…’ (p. 123) and underscores the importance and range of fictions in the judicial process (p. 124).
The chasm between social, cultural and religious contexts on the one side and the rule of law on the other has been the subject of much deliberation. It is important, however, to examine the precise ways in which the social and religious contexts influence legal procedures, if they do. The essays in this volume, each in its own way, address precisely this question—of the separation of law from society and the ways in which nevertheless the latter bleeds into the former. Chiara Letizia’s examination of the case of a Hindu, anti-secular activist in Nepal opens out to view the disjunctures between the political avowal of secularism by the party in power and its undoing in investigations, appeal and the operation of criminal justice through quasi-judicial bodies that technically must operate within the formal framework of public law.
The other side to this is the cascading of dalit assertion, anti-caste philosophies, legal activism and legislation in combating the violence of caste on dalits. Nicolas Jaoul locates his essay in Kanpur and attempts to describe how dalit assertion is expressed through popular engagement with the law—through a close look at the multiple sites and strategies (legal and political) that are mobilised in presenting a case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The stakes involved in following these cases through, in his view, are deeply political in two ways—resisting disenfranchisement engineered by the dominant classes and politicisation by infusing broader ideological meanings into individual struggles against untouchability (p. 198).
It is true that dominant cultures disable legal spaces and usurp them in many different ways or because of this misrule of law, resistance has often involved attempts to ‘occupy’ the law and turn it around. In either case, the boundaries between the outside and the inside of law are constantly blurred, although the distinction itself is never completely displaced—the inside of the law has formal frames that mark it apart. Devika Bordia discusses the ways in which the formality of the law is constituted through its appropriation of the outside—a competing formality that is illegally lawful. Drawing on fieldwork conducted in a police station and a panchayat meeting in a tribal region in Rajasthan, she discusses the case of an adivasi woman accused of spousal murder and demonstrates how ‘the historical co-emergence and co-production of panchayat and police practices [results in] panchayat meetings [being] influenced by the ideas and language of state law, while tribal leaders and decisions of panchayat meetings influence police practices’ (p. 223).
The ‘panchayat’ has been troublesome for the formal justice system—its ubiquity, its un-definability, its proliferation at several levels with multiple meanings and its unexplained longevity and absence render any folklore on the history of the panchayat as an adjudicatory system particularly problematic. Investigating the trial of the katta panchayat in Tamil Nadu by the formal courts, Zoe Headley discovers that there are villages where the panchayat has adjudicated continuously as far back as the oldest villagers can remember. There are other villages where no panchayat has been convened for 30 years and where they are convened, the meetings are open and a wide range of disputes are settled through this institution. Yet, the formal courts in Tamil Nadu have taken the view that katta panchayats are an evil that mete out bad justice and therefore must be eliminated, making any assertion of the validity of institution a criticism of the court. This trial in absentia, Headley argues, reveals very little of the character of the different legal orders at the village level.
The recognition of persons under modern public law in the subcontinent has been largely in terms of the binary male–female. This has been contested by historiographers and activists who have resurrected older histories of gender regimes that could not be contained in this binary classification. Yet, despite the historical presence of transgender persons and communities, the figure of the transgender in law has been liminal, criminalised and stigmatised. Jeffrey Redding traces the reconfiguration of the category of transgender in the law in Pakistan by examining a case that travels from the institutional jurisdiction of the police (raid and arrest) to that of the Supreme Court (‘mainstreaming’ and welfare).
Opening out the French inquisitorial system to view, Veronique Bouillier presents a case of murder against a woman of Sri Lankan origin residing in France at a court of assize. The intractability and incomprehensibility of alien cultures, passions and emotions as also suffering, invests a specific character to the criminal trial—‘You said you drank cognac at 9 a.m., in France we don’t drink cognac at 9 a.m.’ (p. 303).
What are the fields of the law, the regimes through which laws rule and the experiential categories/sites through which they might be comprehended? Given the ‘performance’ of law in the courtroom and ‘counter-performances’ outside, what is the place of the ethnographer in unravelling its codes and rendering it intelligible in more ways than one? How does one understand ‘the official representation of South Asian legal traditions and the everyday practice of justice-making?’ (Anthony Good, p. xvii). This volume ruptures the monolithic edifice of formal law and courts through its rich detail and little stories about the life of the law.