Tuesday, September 18, 2007

Medieval Justice vs Modern Justice

A BBC headline caught my eye as I was following the story of the recent Bihar lynching; where the bodies instead of being cremated were left lying on the banks of the Ganga after nominally setting fire to their funeral pyres and were later observed being eaten by dogs. The BBC headline called Bihar a state “where lynching is the order of the day”. The BBC Correspondent by the name of Amarnath Tewary from Patna has filed this report and I mention the correspondent‘s name only because we should not dismiss a headline of this nature as the creation of a foreign radio channel. The BBC article gores on to say that vigilante justice appears to have become the order of the day in the lawless northern Indian state of Bihar.

But perhaps the BBC is being unfair to Bihar which is possibly on the mend though it still has a long way to go. According to all the information that we get to see and hear, the chief Minister Nitish Kumar acted promptly against the erring officials as soon as the incident was brought to his notice. Some other incidents of lynching that made it to the media in the recent past : the mentally retarded boy lynched because he stole a biscuit, the killing of Professor Sabharwal in Ujjain, the violence that erupted in Agra after a speeding truck ran over 4 youth, and the routine violence that is associated with Kanwwarias now almost every time they hit the pilgrim trail. And there could be many more.

The BBC web site itself talks about lynching in the context of the positioning of electricity poles; inter caste marriages, adultery and what not. The guiding philosophy in today’s India increasingly not the penal code but the Old Testament’s Mosaic Law– “An Eye for an Eye” and a Tooth for a Tooth”. But then, even the Mosaic Law was still quite humane with all its “ifs” and “buts” written in as safeguards

Accept it or not, India has two kinds of criminal judicial systems at play in the country and at the moment they do not connect. The first and most over arching one of course is the British imposed penal code. This supposedly is the only officially sanctioned system and has a hierarchy built up right from the session’s courts to the High Courts and then the Supreme Court. Then are the traditional Panchayats. These are not the Panchayats of governance that Mani Shankar Aiyar. I am talking of the traditional panchayats – typically the caste panchayats that his ministry is thinking of outlawing although they have been in existence much, much longer than his ministry has been.

Now a caste Panchayat might look abhorrent to the reformed modern mind, but caught between a anesthetized “modern judiciary” which has heaps of paper work and years of hearing before it can hand down a sentence which can then be appealed and vigilante justice which kills and shoots the first person in sight and only contributes to anarchy, caste panchayats operate within known and generally understood social norms, convene with minimal fuss and its verdicts are instantly enforced.

Am I making a case for caste panchayats ? Let me remove the word caste for it is politically incorrect etiquette and use the word traditional panchayats. Yes, I think there is a case for them. At one time, even the government tried to co-opt them by constituting Nyay Panchayats but like every thing the government co-opts and hands over to the Babus¸ the process failed. So I am not talking of the state sponsored Nyay Panchayat but the traditional panchayat which has teeth and authority. Admittedly, this is an institution more often than not guided by medieval norms which are reactionary and retrogressive but remember the so called “modern judicial system” that we so proudly flaunt actually dates back to the nineteenth century and whereas the penal code is cast in concrete so to speak, the social mores and norms evolve , albeit they evolve slowly.

If we have to escape vigilante folk justice which is totally mindless, we have to reform our judicial system. By paying attention to the modern judicial system alone , we have set up special courts, evening courts, Fast Track Courts, mobile courts, CBI courts and all sorts of other courts but none of this works for they are the legal system of the elite and the poor small fish who get caught in its net unless they can afford expensive lawyers are doomed. On the other hand, the traditional panchayats which require no lawyers, no costly court rooms, no paraphernalia have received little attention and attempts at modernization. Doesn’t the traditional judicial system deserve a chance with some inputs in terms of trying to bring it up to speed from its current medieval moorings ? If that is when the last time any attention was paid to it , is it any wonder that they are caught up in a time warp ? Whose fault is it ? Our or theirs ?

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