Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
In fact, data analysis to date suggests that the bulk of lawyers and judges rarely, if at all, used international human rights principles in dealing with these cases—many not even having heard of various international legal documents including CEDAW. Moreover, most were of the view that human rights issues were not relevant to these cases. Instead, many simply followed local customs and tradition in case resolution—something directly opposed to the universalist perspective taken by CEDAW, the ICCPR, and other international human rights documents. Some interview excerpts illustrating this trend include:
DELHI LOK ADALAT COURT MEDIATOR/LAWYER- ‘I know human rights are part of the LL.B…I’ve never heard of CEDAW. It’s not relevant here. It’s not used. It’s mostly the tradition used.’
RURAL MAHARASHTRA LOK ADALAT COURT MEDIATOR/LAWYER- ‘We use common sense and tradition to resolve cases…not formal law or human rights or international laws. It’s not necessary.’
HYDERABAD JUDGE & LOK ADALAT COURT MEDIATOR – ‘ARE HUMAN RIGHTS RELEVANT HERE? ‘Not directly’
MUMBAI (BOMBAY) LOK ADALAT COURT MEDIATOR/LAWYER ‘The most important thing here is the local tradition and status of the family in society. You apply those standards in the case.’
This finding is consistent with an earlier study, involving interviews with 109 judges, which found widespread gender bias, with approximately half of the view that there were certain occasions when a man was justified in slapping his wife, 78% never having heard of CEDAW, and the remaining 22% unaware of its contents including General Recommendation 19 on violence against women (Sakshi 1996, 5-6), (Merry, S. 2006, 108-09). Thus, even once cases reach the courts, it has been argued that legal discourse reproduces traditional socialized constructions of gender violence, thereby legitimizing part of the problem (Mehra, M. 1998, 59-83).
The quasi-legal ‘women’s courts’ covered in the study, which conduct mediation/arbitration type proceedings for violence against women cases, were the mahila panchayats operating in and around Delhi and in rural areas of Uttar Pradesh in the north of India, as well as the nari adalats in Bangalore and rural Bijapur, Karnataka in the south of India. Both are virtually the same procedurally, and are run by the non-governmental organizations of ‘Action India’ and ‘Mahila Samakya’, respectively. In articulating their mission, Action India state ‘We believe that women’s rights are human rights.’ Some excerpts from the ‘panche’ arbitrators/mediators’ interviews include:
‘Women’s rights are human rights – the right to live with dignity and free from violence’
‘We are trained in human rights laws and CEDAW…We go twice a month.’
‘We use these (human rights) principles in reaching resolutions to these cases.’
Thus, interestingly, individuals from poor sectors of society and marginalized populations who were more likely to attend these quasi-legal, non-state mediations/arbitrations at the ‘women’s courts’ appeared to be having their cases processed more in line with international human rights principles than those in higher socioeconomic groups who utilized lawyers and underwent formal court processing of their cases. I argue that this is a result of various factors. First, there is no mandatory continuing legal education in India for lawyers. Thus, those advocates who began practice prior to India’s ratification of various international legal documents including CEDAW (in 1993) might be less aware of various international laws and principles possibly affecting their cases. Second, the informal justice mediations and arbitrations covered in the research take place under the auspices of various local NGO’s. Consistent with norm diffusion theory, these NGO’s receive funding and consequently regular training in international human rights laws and principles including those enshrined in CEDAW by various international NGOs and transnational actors and entities from Western countries, e.g. USAID, and the Dutch government through their Indo-Dutch program.
In my next post, I will talk about victims’ perspectives.
May 24, 2010 at 8:49 pm Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized Print This Post