South Asia Multidisciplinary Academic

Journal
17 | 2018
Through the Lens of the Law: Court Cases and Social
Issues in India

Introduction. Through the Lens of the Law: Court

Cases and Social Issues in India
Daniela Berti and Gilles Tarabout

Electronic version
URL: http://journals.openedition.org/samaj/4433
DOI: 10.4000/samaj.4433
ISSN: 1960-6060

Publisher
Association pour la recherche sur l'Asie du Sud (ARAS)

Electronic reference
Daniela Berti and Gilles Tarabout, « Introduction. Through the Lens of the Law: Court Cases and Social
Issues in India », South Asia Multidisciplinary Academic Journal [Online], 17 | 2018, Online since 19
December 2017, connection on 30 April 2019. URL : http://journals.openedition.org/samaj/4433 ;
DOI : 10.4000/samaj.4433

This text was automatically generated on 30 April 2019.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0

International License.
 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 1

Introduction. Through the Lens of

the Law: Court Cases and Social
Issues in India
Daniela Berti and Gilles Tarabout

Presentation

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 2

1 What does the study of judicial cases and

legal documents contribute to the
understanding of society? How do courts
shape social, economic, religious, or
political issues? Throughout the world
there is a widespread feeling that the role
of courts of law is growing at the expense
of other institutions; and that judicial
processes are increasingly adjudicating and
managing all aspects of human life, from
global issues to intimate relationships—
which a now abundant literature calls a
process of “judicialization.”1 If
developments in the legal sphere are
generally linked to the rise of the modern state and capitalism (Comaroff and
Comaroff 2006a), the more recent spate of “judicialization” has received marked impetus,
which Comaroff and Comaroff (2000) attribute to globalization and to neoliberal ideology:
The latter, because of its contractarian conception of human relations, property
relations, and exchange relations, its commodification of almost everything, and its
celebration of deregulated private exchange, all of which are heavily invested in a
culture of legality. The former, because of the way in which it demands new
institutional modes of regulation and arbitration to deal with new forms of
property, practice, and possession (Comaroff and Comaroff 2000:329). 2
The effects of this process have been diversely evaluated. The increasing role played by
the courts and the growing and diffuse culture of legality have been held responsible for
the tentative hegemony of political and social elites, but also for its contestation
(Lazarus-Black and Hirsch 2010). The development of this legalistic logic has major
implications in the way society is thought to be legitimately constituted, i.e. as a
collection of individuals with equal rights rather than as a structured community. As a
consequence, the social fabric itself is thoroughly reworked: “the language of the law …
individuates the citizen and, by making cultural identity a private asset rather than a
collective claim, transmutes difference into likeness” (Comaroff and Comaroff 2000:329–
30). As the same authors point out,
with the growing heterodoxy of the twenty-first-century polity, legal instruments
appear to offer a ready means of commensuration … a repertoire of more or less
standardized terms and practices that permit the negotiation of values, beliefs,
ideals, and interests across otherwise impermeable lines of cleavage. Hence the
displacement of so much politics into jurisprudence. Hence the flight into
constitutionalism, which, in its postcolonial guise, embraces heterogeneity within
the language of universal rights—thus dissolving groups of people with distinctive
identities into aggregates of persons who may enjoy the same entitlements and
enact their difference under the sovereignty of a shared Bill of Rights (Comaroff
and Comaroff 2006b:32).
In India, the “judicialization” process is rooted in the period of British rule, especially in
the religious realm where, in the second half of the nineteenth century, courts of law
came to adjudicate conflicts concerning endowments and various temple issues. It has
further expanded since Independence, not only in matters of religion where, as Upendra
Baxi (2007:49) commented, the Supreme Court has acquired “a ‘brooding omnipresence’
that extends to ordinary legislation and even to the exercise of executive powers,” 3 but
also in other domains as some of the following contributions clearly illustrate (e.g.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 3

Bhuwania, Smadja). This power particularly increased from the 1980s onwards when
judges from the Supreme Court, following precedents from the United States, developed a
specific procedure that considerably broadened judicial initiatives and possibilities of
intervention, and deeply impacted Indian society: the Public Interest Litigation (PIL).
2 The PIL’s aim was to enable ordinary people in India, even the poorest citizens, to have
easier access to justice as part of a democratization of the judicial process, and to
counterweigh perceived maladministration (Sathe 2002; Sen 2012, 2015). However, the
discourse on PILs and the practice of using them have evolved since then. While the PIL
facilitated the procedure for filing a complaint made in the interest of the “public,” it also
provided the courts with a liberty that led them to assert their jurisdiction over other
branches of government and the administration. Deva (2011:61–64) distinguishes three
phases. In the 1980s, special attention was indeed given “to the rights of disadvantaged
segments of society.” The 1990s saw an increase in the role played by institutionalized
actors, such as NGOs, so that the breadth of issues addressed “expanded tremendously—
from the protection of the environment to corruption-free administration, right to
education, sexual harassment at the workplace, relocation of industries, the rule of law,
good governance and the general accountability of the government.” The third and
current phase “is a phase in which anyone can file a PIL case for almost anything.”
However, Deva argues, the support given to the government’s policy of liberalization now
differs from the “sympathetic response the rights and interests of impoverished and
vulnerable sections of society … received during the first phase.” What is also worrying—
and this has been regularly pointed out—is that through PILs, “the higher judiciary in
India has not only legislated but also acted as an executive branch by monitoring the
implementation of guidelines or recommendations issued by them. They have done so
while adjudicating disputes, thus combining legislative, executive and judicial powers”
(Deva 2011:65; see also Cassels 1989; Bhuwania and Smadja, in this issue, provide two
examples). As a result, whether through the special PIL procedure or through the older
standard Writ Petition, the Indian legal system has proved to be one of the most powerful
instruments of governance in the country. As such, it certainly deserves close scrutiny by
social scientists.
3 The following essays consider law as a social institution fully embedded in social life,
contrary to the common perception that it is a separate domain, perhaps because of the
discourse on the autonomy and technicality of the law. Indeed, as Conley and O’Barr
remark, “when a dispute enters the legal system and becomes a ‘case,’ its expression is
transformed. … The lawyers reformulate the accounts selected to conform to the
requirements of legal categories” (Conley and O’Barr 1990:168). 4 Besides, as Veena Das,
writing about the victims of the Bhopal disaster, aptly pointed out, “in the judicial
discourse ... every reference to victims and their suffering only served to reify ‘suffering’
while dissolving the real victims in order that they could be reconstituted into nothing
more than verbal objects” (Das 1995:134). The transformation of events and persons into
verbal objects, and the application of general, “rational” reasoning to legal categories
correspond to a “universalizing attitude” of the language of the law (Bourdieu 1987)
which has often been emphasized. Court cases do indeed combine this social construction
of law as an abstract set of rules with the specific interests and motivations of the people
involved (litigants as well as legal professionals), touching on a wide array of domains—
from social and family relationships to issues such as criminality, environmental
protection, natural resource management, religious practices, or human rights.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 4

4 Indeed, while functioning as a “semi-autonomous social field” (Moore 1973), law does not
lie outside society. Thus, since the 1950s, anthropologists have emphasized law as a
process that cannot be isolated. Distinguishing a legal domain from a political one, for
instance, seems highly problematic, as Comaroff and Roberts have previously suggested:
for them, “legal” or “political” modes of dispute resolution do not merely coexist, they
represent poles in a single continuum which are “systematically related” and are
“transformations of a single logic” (Comaroff and Roberts 1981:244; see also Kirsch and
Turner 2009 on law and religion). From a slightly different perspective, while writing
about culture, Rosen (2006:xii) underlined the fact that “law is so deeply embedded in the
particularities of each culture that carving it out as a separate domain and only later
making note of its cultural connections distorts the nature of both law and culture.”5 This
is not to say that legal professionals do not make efforts to construct the law as
independent from culture: in India, for instance, cultural attitudes are seldom invoked as
arguments by the parties during trials. However, this contrasts with the actual
proliferation of cultural explanations for the same cases, expressed by the same
protagonists, once outside the court.6
5 The possibilities that such an entanglement offers for the understanding of society and
culture are not lost on social scientists, and historians in particular. Besides studies on
the history of law, or quantitative approaches to crime and violence, historical research
has long used judicial archives to access the “cultural grammar” of a society at a given
time (Cerutti 2003:13). Following on from the work of C. Ginzburg on witchcraft trials, the
school of “microhistory” in particular has regularly drawn on various legal documents to
catch a glimpse of commonplace events, relationships and discourses which, being
ordinary, are not mentioned in other sources. Such writings should be handled with
caution as they usually reflect partisan views or self-interested tactics, and are framed by
the constraints of the legal context. Nevertheless, they constitute one of the few ways by
which many people living in societies of the past make themselves heard in present times
(Farge 2009). Whatever the truthfulness of statements that are given to the police or in
court, people refer to their environment, their social relationships, their material
existence, their work, or their beliefs (Garnot 2006:10).7 Court archives also make explicit
the values and views of judges on society, which have been particularly valuable in
scholarship on colonial rule: “[The colonial] legal discourse must be located in relation to
both the more general discursive features of colonial discourse, and a cultural politics in
which notions of adulthood, childhood, wifehood, masculinity, femininity, sexuality and
effeminacy were of critical importance.” (Lal 1999:165). As Freitag (1991:227) pointed out
“Criminal law may be among the most revealing aspects of a social order.”8
6 By comparison with historians, social anthropologists interested in normative systems in
post-colonial societies have tended to show little if no interest in state courts and have,
instead, focused on local “traditional” institutions of judgment or decision-making.
According to Nader (2002:113) this might be because “anthropologists consistently
underestimated (and still do) the role of legal ideologies in the construction or
deconstruction of culture writ large.” It might also be due to a widespread idea that, in
the case of post-colonial societies, courts of law are of foreign origin, imposed by and
inherited from colonial institutions; they are said to tell us nothing about the
“indigenous” cultures with which the work of anthropologists has long been associated.
This has been the opinion of many scholars who have written about India: “In attempting
to introduce British procedural law into Indian courts the British confronted the Indians

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 5

with a situation in which there was a direct clash of the values of the two societies; and
the Indians in response thought only of manipulating the new situation and did not use
the courts to settle disputes but only to further them” (Cohn 1987:569). The “alien”
character of modern law in India is also regularly denounced by critics of secularism.
However, the boundaries between the “two societies” mentioned by Cohn, or between
“modern law” and “traditional local culture” seem much more blurred than first
assumed. As Das underlined,
the experience of tradition in Indian society, as in most similar societies, is that it
has a double entrenchment—one in institutions that may be considered traditional
(such as caste or religion), and a second in institutions that may be considered
modern (such as the bureaucracy and the law). An untainted traditional telos is as
unavailable in contemporary Indian society as a modern institution, such as a law
court, which has not been coloured by its location. ... This double articulation is the
most important feature of both tradition and modernity in contemporary India
(Das 1995:53).9
Similarly, when writing about the assumptions of discrepancy between modern law in
India and religious conceptions, Fuller (1988:248) stressed “the continuities and
ultimately indigenous character of the law of religion in modern India.” And as Anderson
(1990:172) remarked, “the distinction between ‘indigenous’ and ‘alien’ presupposes a
sociocultural uniformity on either side of the dichotomy which probably does not exist.
There are also good reasons to suspect that a kind of dissonance between state and
community forms of authority … amounts as much to a matter of political structure as
one of cultural hiatus.” Indeed, instead of sidelining modern law and courts as peripheral
to the understanding of a society, an enormous wealth of research has been opened up by
considering, just as Moore does (writing about a case in Tanzania), that
analytically it would be a profound distortion to see this formally as the clash of
two legal systems, state law and local law. It is a single working social system in
which the two bodies of rules and institutions are completely intertwined in
everyday life. They are both drawn on as resources as local people strategize their
way through the maze of local competition and contestation (Moore 2015:173).
The following studies are to be seen in this light and similarly consider law as a
sociocultural process—involving the power of the state and resistance to it—that allows
for dispute resolution strategies. This perspective entails the possibility of studying how
law professionals discuss issues filtered through the lens of the law, how people relate to
the courts, or how court rulings actually shape politics as well as individual behavior. The
“lens of the law” can thus be addressed according to various understandings, being both a
vantage point over society and a filter, a perspective and a process. Before introducing
the seven essays that have explored some of the facets of these problematics, 10 a glimpse
of other previous studies on law and society in India may be useful. A few general
orientations may be simply mentioned.
7 Apart from sociological and anthropological studies of legal professionals or of the court
milieu,11 a large number of studies by jurists and social scientists address questions of
society with the eventual objective of reforming the legal system. These socially
committed approaches, however, often have more to do with issues of law or of justice
than with a reflection on society, as can be seen for instance in the debates on a unified
civil code, the reservation policy, gender inequality, human rights, or environmental
protection.12 Yet another line of study concerns the cultural dimension of the law.
Following classical works on Hindu law such as those of H. Maine in the nineteenth
century or P.V. Kane in the 1950s, this question has been at the core of many recent

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 6

studies, some of them following a research agenda shared by scholars working on post-
colonial societies and focusing on the interplay of multiple normative orders—in the case
of India, how Sanskrit-based Hindu law, or Islamic legal systems, as well as local
“customary” laws, constitute a multi-layered system and interact with state law.13
8 The importance of this scholarship hardly needs be stressed. However, the following
essays are part of a different line of inquiry that has mainly been developed in recent
years, and reflects on contemporary society through the use of various legal documents
or/and a recourse to ethnography. Initially, such studies mainly focused on the content of
judicial decisions and on the possible implications of these decisions from a juridical, or a
sociological perspective, or from the point of view of political science. More recently, case
studies have given full attention to the complex, long-term judicial story of the lawsuits,
inside and outside the courtroom, and on the light they shed on social and political issues.
14
Although, as Nader notes (2002:97), the case method has been criticized in debates on
the anthropology of law for being unduly restrictive, it offers the advantage of enabling a
fine-grained approach similar to what can be done in other fields (see also Merry 1990,
Good 2015). It especially provides a privileged opportunity to address simultaneously a
situation—a conflict that brings to the surface relationships that may otherwise be barely
apparent to an outsider—and discourses on the given situation. As Merry argues when
analyzing cases brought before American lower courts,
the process of disputing is one of quarrelling over interpretations of social
relationships and events. Parties raise competing pictures of the way things are as
each strives to establish his or her own portrayal of the situation as authoritative
and binding. Third parties also struggle to control the meaning—and hence the
consequences—of events through their distinctive forms of authority. Law
represents an important set of symbolic meanings for this contest. … I combine the
analysis of microlevel interactions around moments of conflict developing over
time—the approach we normally describe as the disputing process—with the
analysis of interpretation and contest over the way things are understood, an
enterprise which we normally associate with the study of ideology. The focus on
dispute processes is attentive to social interactions and to the way the social world
is revealed in moments of fight. The focus on ideology foregrounds meaning and
the power inherent in establishing systems of meanings (Merry 1990:6–7).
India offers particularly vast, fertile ground for developing this research. First of all, as
mentioned earlier, courts have become central to the governance of the country. India is
under a Common Law legal system, in which judges have the authority to make decisions
that complement the laws adopted by the legislature and the regulations adopted by the
executive; in other words, they, too, make the law. What is more, the Constitution of India
explicitly imposes a reformist agenda on the courts—which is particularly in evidence
concerning Hindu religion, for which article 25 (2) (b) enjoins the State to provide for
“social reform and welfare,” a perspective that a former Chief Justice of India,
N. Bhagwati, justified in terms of the necessity to lift “India out of medievalism,
obscurantism, blind superstition and anti-social practices” (Bhagwati 2005:43).
Implementing the agenda set out by the Constitution—the longest in the world—the
action of the court is pervasive at all levels of society, from broad guidelines on the
environment to the intimacy of family relationships (Mody 2008, Baxi 2014). This
omnipresence of the state as a consequence of the action of the courts is underlined by
Dhavan who, discussing the articulation between “public” and “private” arenas of life in
India, and writing more specifically about the promotion by the upper judiciary of “public
interest,” points out that the latter produces

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 7

highly intrusive agendas into the “private domain,” the “personal spaces” of
individuals and the day-to-day lives of the people. The discretion of the people to
order their own lives grows smaller and smaller because in this new dispensation
they are expected to be “fair,” “just,” and “egalitarian” in every aspect in relation
to friends, children, well wishers, detractors, enemies, employers, employees, the
work place, home and hearth (Dhavan 2003:163).
There is also the sheer size of the judiciary and the staggering number of cases that are
filed in courts. In 2016, the number of lawyers in India was estimated at about 1.5 million,
on a par with the USA (Nayar 2016).15 This quantitative importance testifies to the
“success” of the courts in having litigations brought before them. There is, however, a
much lower number of sitting judges than would be required (11 or 12 per every million
people),16 entailing an enormous backlog of cases in courts at various levels: in 2009 there
were an estimated 52,000 cases pending at the Supreme Court, four million at the various
High Courts, and 27 million at district level (NDTV 2009). As a consequence, it can take
years for cases to be decided. In 2009, newspapers were already echoing an alarming
report issued by the Delhi High Court, stating that at least 629 civil cases and 17 criminal
cases had been pending for more than 20 years, as of March 2008. All in all, as the Court’s
Chief Justice A.P. Shah admitted in the report, “it would take the court approximately 466
years” to clear the pending 2,300 criminal appeal cases alone (Associated Press 2009). If
anything, the situation has not improved and, in 2013, the government’s estimate rose to
65,000 for cases pending at the Supreme Court and to 4.4 million at High Court level
nationwide (Hindustan Times 2013). It might be tempting to attribute the search for an
agreement or compromise outside the court to this inordinate length of time before a
case is adjudicated. However, the huge number of cases pending may merely accentuate a
more general phenomenon that is not specific to India, and the search for an agreement
usually results from various causes. Having recourse to state justice may be a move
which, from the start, is part of the very strategy of bargaining, involving mediating or
arbitrating instances at different levels. As Galanter observes (not specifically about
India), “the work of courts is seen not primarily as the resolution of disputes in official
settings but as the projection of bargaining and regulatory endowments into a world
unevenly occupied by indigenous regulation, a world in which the influences that
emanate from courts mingle with those from other sources” (Galanter 1983:123). In the
field of anthropological studies on India, Srinivas (1964) has proposed the notion of “bi-
legality” that enabled the villagers’ strategy to use both “indigenous” and official law
according to their needs (see also Cohn 1987). This may be part of a “forum-shopping”
attitude (litigants look for the most favorable decision context) or part of an arm-twisting
tactic that uses the courts to influence an ongoing bargain where local leaders, police
officers, lawyers, as well as journalists and civil society activists may play a role (for
instance, see Bordia 2015). As Galanter shows,
Indeed, in most courts, most moves into the formal adjudicatory mode are for
purposes other than securing an adjudicated outcome. The principal determinants
of these processes must be sought in the goals, resources, and strategies of the
parties (including, for this purpose, the court personnel). The ‘law’ and the courts,
as institutions, are not therefore unimportant, for the parties’ strategic options and
resources and even goals are to some extent supplied by the law and the
institutions that ‘apply’ it (Galanter 1983:119).
Reaching a settlement outside the court is one of the reasons behind an extremely
frequent phenomenon in Indian courts: when prosecution witnesses deny their initial
statement to the police and become in the legal jargon “hostile witnesses,” often
resulting in the acquittal of the accused, even in cases where everybody is aware of his/

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 8

her culpability (Berti 2010). The courts are perfectly conscious of this phenomenon,
without usually having the possibility of acting upon it; a recent judgment by the
Supreme Court summarizes the situation: “Witness turning hostile is a major disturbing
factor faced by the criminal courts in India” (Ramesh and Ors vs State of Haryana 2016). 17
This is not only due to a possible out-of-court compromise, but may also be the result of
threats that witnesses have received. As Krishnan et al. remark in their study of district
courts,
Intimidation is widespread; witnesses are frequently threatened or bribed by
defendants, and judges report that some unscrupulous members of the bar
perpetuate these practices by taking additional fees to coerce a settlement.
Prosecutors—who are often confronted with state witnesses who can turn hostile
out of fear of retribution—worried about inadequate security, particularly during
criminal trials in the district courts. As part of the intimidation process, associates
of criminal defendants often lurk around the courthouses or sit in the gallery
during the trial itself. This type of threatening behavior faces little deterrence from
court security, and prosecutors’ demands for enhanced home security are routinely
ignored (Krishnan et al. 2014:175).
And yet, paradoxically (and contrary to the idea that pendency would be the main reason
for outside bargaining), despite huge delays, poor facilities, and widespread corruption at
the judicial bureaucracy level,18 courts often represent the main if not the only hope for
many people, as the study conducted by Krishnan and his team of researchers shows. One
example: even though a Himachali litigant challenging a local company’s eviction efforts
suffered great hardship at the court level due to the inefficiency of the administrative
staff and to a ten-year delay in resolving his case, he nevertheless had no other
alternative but to go to court, as neither local officials at the village level nor the police
had been willing to hear his complaint (Krishnan et al. 2014:166–67) Litigants are
certainly aware of the system’s malfunction, but may go to court because no unofficial
solution could be reached in the context of local relationships of power. As a matter of
fact, socioeconomically disadvantaged claimants usually have limited institutional
options for redressing their grievances about basic needs such as water, food, health care,
sanitation, education, and safety. While local bodies like panchayats are supposed to be
easily accessible, the concerns of these disadvantaged groups are actually routinely
ignored. Members of the state legislative assemblies and national parliament are also
seen as non-responsive, as well as caste-driven and caste-discriminating: “If there are
disputes [with the government],” remarked a Himachali litigant, “there is no way to solve
them ... [because] they will never get resolved or compromised at the village level. That is
why these matters come to the court.” (Krishnan et al. 2014:156–57) Indeed, whatever the
litigants’ reasons or strategies, the Courts’ compound in any district headquarters is an
area bustling with activity, where lawyers, typists and clients interact among a constant
flow of town and village people, testifying to the vital role courts play in society as sites of
power that affect every aspect of life therein.
9 Through the Lens of the Law offers a collection of essays that pertain to various academic
disciplines: anthropology, ethnohistory, history of religion, legal anthropology, legal
history, and political science. The first two contributions (Headley, Berti) reflect on how
legal documents may shed light on aspects of social life for which there is little detailed
information. Zoé Headley’s Adjudicating Social Death. Caste Exclusion, Civil Rights and the
Colonial High Courts, explores the evolving relationship between State law and caste
society through the lens of the colonial courts’ treatment of caste “excommunication.”
While the principle of caste autonomy from civil courts in matters of its own regulation

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 9

was initially established (including the right for a recognized internal authority to
“excommunicate”), issues of caste excommunication nevertheless came before the courts,
especially as part of the conflict between reformist and more conservative members of a
caste (e.g. over issues of the remarriage of widows). In the early twentieth century,
however, thanks to the growing influence of Hindu reformist movements, this autonomy
implicitly became limited as judges began to express their doubts regarding the
soundness of some of the decisions taken by caste authorities, questioning de facto their
right to enforce social punishment. The arguments and counterarguments presented on
these occasions and found in legal archives document the details of these intra-caste
relationships that are otherwise barely known. For her part, Daniela Berti, in her paper
Suicide Notes, proposes a reflection on a particular kind of document, the so-called
“suicide notes” that are attributed to women who may have been subjected to domestic
harassment and who meet a violent end (suicide or murder)—notes that may or may not
become legal evidence in court if, as is often the case, the in-laws are accused of being
responsible for the woman’s death. The notes may or may not be genuine—forged by the
natal family of the deceased or by the in-laws. Whatever the case, they combine both an
appeal to emotions and to widely shared representations of women and marital life in
India, and an awareness of the legal consequences of suicide and of writing the note. As a
genre of alleged “self-writing”—whether authentic or not—the “suicide note” expresses
tensions in the intimate life of a couple and a family, while at the same time aiming to
become a public testimony.
10 A second set of papers (Tarabout, Dequen) explores how crucial dimensions of society
(here religion or family) are framed by legal debates, blurring all distinctions between the
judicial process and politics. In his contribution, Ruling on Rituals: Courts of Law and
Religious Practices in Contemporary Hinduism, Gilles Tarabout argues that, beyond the
judges’ personal attitudes, which may vary, court rulings have had a deep and prolonged
effect on Hinduism merely because they impose categories of a legal nature on religious
practices and representations. While implementing an Indian version of secularism, as
framed by the Constitution, judges in fact extensively define and redefine religion in
general, and Hinduism in particular, down to the tiniest detail. Jean-Philippe Dequen’s
paper, A Journey to the Brink of India’s Legal Landscape: Jammu and Kashmir’s Relationship with
the Indian Union, offers an illustration of how constitutional frameworks may shape
disputes at a micro level—e.g. intra-familial relationships. Analyzing the specific status of
Jammu and Kashmir (with its own Constitution) within India, which enables a “dual
constitutional order,” the author develops two case studies in order to show how people
try, or are constrained, to navigate between two constitutional frameworks for every
litigation—concerning “permanent residency,” for instance, or the articulation of Islamic
law with local customs in matters of succession.
11 Three contributions (Smadja, Bhuwania, Tawa Lama-Rewal) conclude the series of essays
by focusing on procedures—in or outside the court—that bypass politicians or the
administration or try to make them accountable for the management of social or
environmental issues, with contrasted effects on democracy. The article by Joëlle Smadja,
Chronicle of Law Implementation in Environmental Conflicts: The Case of Kaziranga National Park
in Assam (North-East India), underlines the role of the courts in furthering and managing
environmental policies through writ petitions and PILs. The analysis of the conflicts
generated by successive extensions to Kaziranga National Park (Assam) and its ultimate
connection with Project Tiger shows how the court can act above the State and promote a

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 10

restrictive vision of ecology contrary to certain provisions of the Forest Rights Act (2006).
In doing so, it responds positively to legal actions initiated by petitioners who have a
clear political agenda and for whom evicting so-called “encroachers” (some of whom
have, in reality, land titles) is in fact a way of fighting Bangladeshi migrants in the region.
Anuj Bhuwania’s paper, The Case that Felled a City: Examining the Politics of Indian Public
Interest Litigation through One Case, underscores the fact that the procedural flexibility of
PILs is not limited to the facilities that are provided to petitioners in order to approach
the court, but that it also confers on the courts themselves extraordinary power to
modify the issues at hand at will, to order its own enquiries, and to monitor the execution
of its orders year after year without delivering a judgment. Bhuwania shows how judges
decided and high-handedly managed a radical transformation of Delhi against opposition
by civil society or the government, leading to large-scale deindustrialization: PILs clearly
appear to be tools of social management that can be indefinitely prolonged, bypassing all
elected powers and representative groups. The final contribution by Stéphanie Tawa
Lama-Rewal, Public Hearings as Social Performance: Addressing the Courts, Restoring Citizenship,
as a counterpoint to the two previously mentioned studies, focuses on a form of collective
action organized by movements of civil society since the 1990s: Public Hearings that
mirror court proceedings while critically addressing them. This move towards seeking
public accountability parallels the initial inspiration for the introduction of PILs in the
judicial system. However, these collective actions target the courts as well as the
administration or politicians, as the gap widens between the (lack of) effectiveness in
redressing popular grievances and a growing awareness of the rights to which people, as
citizens, are entitled.

BIBLIOGRAPHY
Agnes, Flavia. 2001. Law and Gender Inequality: The Politics of Women’s Rights in India. New Delhi:
Oxford University Press.

Albornoz Vasquez, Maria E., Matteo Giuli and Naoko Seriu, eds. 2009. Les Archives judiciaires en
question. L’Atelier du CRH 5. Retrieved December 16, 2017 (http://acrh.revues.org/1412).

Anderson, Michael R. 1990. “Classifications and Coercions: Themes in South Asian Legal Studies
in the 1980s.” South Asia Research 10(2):158–77.

Appadurai, Arjun. 1981. Worship and Conflict under Colonial Rule: A South-Indian Case. Cambridge and
New-York: Cambridge University Press.

Associated Press. 2009. “Report: India Court 466 Years Behind Schedule.” NBCNews.com, December
2. Retrieved July 12, 2016 (http://www.nbcnews.com/id/29164027/ns/world_news-
south_and_central_asia/t/report-india-court-years-behind-schedule/).

Baird, Robert D., ed. [1993] 2005. Religion and Law in Independent India. 2 nd enlarged edition. New
Delhi: Manohar.

Bailkin, Jordanna. 2006. “The Boot and the Spleen: When Was Murder Possible in British India?”
Comparative Study in Society and History 48(2):462–93.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 11

Bar Council of India (The). 2017. “Vision Statement 2011-2013.” Retrieved December 17, 2017 (
http://www.barcouncilofindia.org/about/about-the-bar-council-of-india/vision-
statement-2011-13/).

Basu, Srimati. 1999. She Comes to Take Her Rights: Indian Women, Property and Propriety. Albany:
SUNY Press.

Basu, Srimati. 2015. The Trouble with Marriage: Feminists Confront Law and Violence in India. Oakland:
University of California Press.

Baxi, Pratiksha. 2014. Public Secrets of Law: Rape Trials in India. New Delhi: Oxford University Press.

Baxi, Upendra. 1982. The Crisis of the Indian Legal System. New Delhi: Vikas Publishing House.

Baxi, Upendra. 2007. “Commentary: Savarkar and the Supreme Court.” Pp. 47–58 in Legalizing
Religion: The Indian Supreme Court and Secularism, edited by R. Sen. Washington: East-West Center.

Benda-Beckmann, Franz von. 1981. “Some Comments on the Problems of Comparing the
Relationship between Traditional and State Systems of Administration of Justice in Africa and
Indonesia.” Journal of Legal Pluralism 19:165–75.

Benda-Beckmann, Franz von, Keebet von Benda-Beckmann, Julia Eckert, eds. 2009. Rules of Law
and Laws of Ruling. Farnham and Burlington: Ashgate.

Benton, Lauren. 2002. Law and Colonial Cultures: Legal Regimes in World History, 1400-1900. New York:
Cambridge University Press.

Berti, Daniela. 2010. “Hostile Witnesses, Judicial Interactions and Out-of-Court Narratives in a
North Indian District Court.” Contributions to Indian Sociology 44(3):235–63.

Berti, Daniela and Devika Bordia, eds. 2015. Regimes of Legality: Ethnography of Criminal Cases in
South Asia. Delhi: Oxford University Press.

Berti, Daniela, Anthony Good and Gilles Tarabout, eds. 2015. Of Doubt and Proof: Ritual and Legal
Practices of Judgment. Farnham: Ashgate Publishing.

Berti, Daniela and Gilles Tarabout, eds. 2015. Diogenes 60(3–4).

Berti, Daniela, Gilles Tarabout and Raphaël Voix, eds. 2016. Filing Religion: State, Hinduism, and
Courts of Law. New Delhi: Oxford University Press.

Bhagwati, P.N. [1993] 2005. “Religion and Secularism under the Indian Constitution.” Pp. 35–49 in
Religion and Law in Independent India, edited by R. D. Baird. 2 nd enlarged edition. New Delhi:
Manohar.

Bhargava, Rajeev, ed. 1998. Secularism and its Critics. New Delhi: Oxford University Press.

Bhuwania, Anuj. 2016. “Public Interest Litigation as a Slum Demolition Machine.” Projection: The
MIT Journal of Planning 12:67–97.

Bordia, Devika. 2015. “The Politics of Custom: Blood Money, Disputes, and Tribal Leadership in
Western India.” Diogenes 60(3–4):153–65.

Bourdieu, Pierre. 1987. “The Force of Law: Toward a Sociology of the Juridical Field.” Translated
and introduced by R. Terdiman. The Hastings Law Journal 38:805–53.

Cassels, Jamie. 1989. “Judicial Activism and Public Interest Litigation in India: Attempting the
Impossible?” The American Journal of Comparative Law 37(3):495–519.

Cerutti, Simona. 2003. Giustizia sommaria. Pratiche e ideali di giustizia in una società di Ancien Régime
(Torino XVIII secolo). Milano: Feltrinelli.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 12

Chandra, Sudhir. 1998. Enslaved Daughters: Colonialism, Law and Women’s Rights. New Delhi: Oxford
University Press.

Chang, Yanrong. 2004. “Courtroom Questioning as a Culturally Situated Persuasive Genre of

Talk.” Discourse and Society 15(6):705–22.

Chatterjee, Nandin. 2011. The Making of Indian Secularism: Empire, Law and Christianity, 1830–1960.
Cambridge: Palgrave Macmillan.

Cohn, Bernard S. 1987. An Anthropologist among the Historians and Other Essays. New Delhi: Oxford
University Press.

Comaroff, Jean and John L. Comaroff. 2000. “Millennial Capitalism: First Thoughts on a Second
Coming.” Public Culture 12(2):291–343.

Comaroff, Jean and John L. Comaroff, eds. 2006a. Law and Disorder in the Post-Colony. Chicago and
London: The University of Chicago Press.

Comaroff, Jean and John L. Comaroff. 2006b. “Law and Disorder in the Post-Colony: An
Introduction.” Pp. 1–56 in Law and Disorder in the Post-Colony, edited by J. Comaroff and J.L.
Comaroff. Chicago and London: The University of Chicago Press.

Comaroff, John L. 2009. “Reflections on the Rise of Legal Theology. Law and Religion in the
Twenty-First Century.” Social Analysis 53(1):193–216.

Comaroff, John L. and Simon Roberts. 1981. Rules and Processes: The Cultural Logic of Dispute in an
African Context. Chicago and London: The University of Chicago Press.

Commaille, Jacques, Laurence Dumoulin, Cécile Robert, eds. 2010. La Juridicisation du politique.
Paris: Librairie Générale de Droit et de Jurisprudence.

Commaille, Jacques and Martine Kaluszynski, eds. 2007. La Fonction politique de la justice. Paris: La
Découverte.

Conley, John M. and William M. O’Barr. 1990. Rules versus Relationships: The Ethnography of Legal
Discourse. Chicago and London: The University of Chicago Press.

Das, Veena. 1995. Critical Events: An Anthropological Perspective on Contemporary India. New Delhi:
Oxford University Press.

De, Rohit. 2013. “The Republic of Writs: Litigious Citizens, Constitutional Law and Everyday Life
in India (1947-1964).” PhD dissertation. Princeton: Princeton University.

Derrett, J. Duncan M. 1957. Hindu Law Past and Present. Calcutta: A. Mukherjee and Co.

Derrett, J. Duncan M. 1968. Religion, Law and the State in India. London: Faber and Faber.

Deva, Indra, ed. 2005. Sociology of Law. New Delhi: Oxford University Press.

Deva, Surya. 2011. “Public Interest Litigation in India: A Quest to Achieve the Impossible?”
Pp. 57–79 in Public Interest Litigation in Asia, edited by P.J. Yap and H. Lau. London and New York:
Routledge.

Dhagamwar, Vasudha. 2006. Role and Image of Law in India: The Tribal Experience. New Delhi: Sage
Publications.

Dhavan, Rajeev. 2001. “The Road to Xanadu: India’s Quest for Secularism.” Pp. 301–29 in Religion
and Personal law in Secular India: A Call to Judgment, edited by G.J. Larson. Bloomington: Indiana
University Press.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 13

Dhavan, Rajeev. 2003. “Law’s Magic and Empire Revisited: Public Spaces and Private Lives—The
Domain of the Law.” Pp. 149–80 in The Public and the Private: Issues of Democratic Citizenship, edited
by G. Mahajan and H. Reifeld. New Delhi, Thousand Oaks and London: Sage Publications.

Dressel, Björn, ed. 2012. The Judicialization of Politics in Asia. London: Routledge.

Dube, Saurabh. 1996. “Telling Tales and Trying Truths: Transgressions, Entitlements and
Legalities in Village Disputes, Late Colonial Central India.” Studies in History 12(2):171–201.

Eberhard, Christoph and Nidhi Gupta, eds. 2005. Legal Pluralism in India. Indian Socio-Legal Journal
31.

Farge, Arlette. 2009. “Commentaire: Le corps, la parole et les affects: analyser leur surgissement à
travers les archives de police.” L’Atelier du Centre de Recherches Historiques 5 (Les archives judiciaires
en question). Retrieved February 21 2017 (https://acrh.revues.org/1569).

Freitag, Sandria B. 1991. “Crime in the Social Order of Colonial North India.” Modern Asian Studies
25(2):227–61.

Fuller, Christopher J. 1988. “Hinduism and Scriptural Authority in Modern Indian Law.”
Comparative Studies in Society and History 30(2):225–48.

Galanter, Marc, ed. 1969. “Lawyers in Developing Societies with Particular Reference to India.”
Law and Society Review 3(2/3).

Galanter, Marc. 1972. “The Aborted Restoration of ‘Indigenous’ Law in India.” Comparative Studies
in Society and History 14(1):53–70.

Galanter, Marc. 1983. “The Radiating Effects of Courts.” Pp. 117–42 in Empirical Theories about
Courts, edited by K.O. Boyum and L. Mather. New York: Longman.

Galanter, Marc. 1989. Law and Society in Modern India, edited with an introduction by R. Dhavan.
New Delhi and New York: Oxford University Press.

Gallo, William. 2013. “India’s Fast Track’ Courts Questioned.” VOA News, January 4. Retrieved July
12, 2016 (http://www.voanews.com/content/
effectiveness_questioned_of_indias_fast_track_courts_seeking_justice_for_rape_victims/1578020.html
).

Garnot, Benoît, ed. 2006. La Justice et l’histoire. Sources judiciaires à l’époque moderne (XVIe, XVIIe,
XVIIIe siècles). Paris: Bréal.

Good, Anthony. 2015. “Folk Models and the Law.” The Journal of Legal Pluralism and Unofficial Law
47(3):423–37.

Gupta, Akhil. 1995. “Blurred Boundaries: The Discourse of Corruption, the Culture of Politics, and
the Imagined State.” American Ethnologist 22(2):375–402.

Halpérin, Jean-Louis. 2010. “Western Legal Transplants and India.” Jindal Global Law Review 2
(1):12–39.

Handberg, Roger. 1999. “Judicialization across Societies. The Spread of Judicial Power and
Societal Change.” International Journal of Public Administration 22(8):1269–92.

Hindustan Times. 2013. “Over 40 Lakh Cases Pending in High Courts, 65,661 in SC.” Hindustan
Times, December 18. Retrieved July 12, 2016 (http://www.hindustantimes.com/india/over-40-
lakh-cases-pending-in-high-courts-65-661-in-sc/story-OEydWyqfdOweyOxphrImeL.html).

Holden, Livia. 2008. Hindu Divorce: A Legal Anthropology. Aldershot: Ashgate.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 14

Kirsch, Thomas G. and Bertram Turner, eds. 2009. Permutations of Order: Religion and Law as
Contested Sovereignties. Farnham: Ashgate.

Kolsky, Elizabeth. 2010. Colonial Justice in British India: White Violence and the Rule of Law. Cambridge:
Cambridge University Press.

Krishnan, Jayanth K., Shirish N. Kavadi, Azima Girach, Dhanaji Khupkar, Kalindi Kokal, Satyajeet
Mazumdar, Nupur, Gayatri Pandav, Aatreyee Sen, Aqseer Sodhi and Bharati Takale Shukla. 2014.
“Grappling at the Grassroots: Access to Justice in India’s Lower Tier.” Harvard Human Rights
Journal 27:151–89.

Lal, Vinay. 1999. “Everyday Crime, Native Mendacity and the Cultural Psychology of Justice in
Colonial India.” Studies in History 15(1):145–66.

Larson, Gerald J., ed. 2001. Religion and Personal Law in Secular India: A Call to Judgement.
Bloomington and Indianapolis: Indiana University Press.

Lazarus-Black, Mindie and Susan F. Hirsch, eds. 2010. Contested States: Law, Hegemony and
Resistance. New York and London: Routledge.

Lubin, Timothy, Donald R. Davis, Jr. and Jayanth K. Krishnan, eds. 2010. Hinduism and Law: An
Introduction. Cambridge: Cambridge University Press.

Mathur, Nayanika. 2016. Paper Tiger: Law, Bureaucracy and the Developmental State in Himalayan India
. New Delhi: Cambridge University Press.

Menski, Werner, ed. 1998. South Asians and the Dowry Problem. Stoke on Trent: Trentham Books /
London: School of Oriental and African Studies.

Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. New Delhi: Oxford University
Press.

Merry, Sally Eagle. 1990. Getting Justice and Getting Even: Legal Consciousness Among Working-Class
Americans. Chicago and London: The University of Chicago Press.

Merry, Sally Eagle. 1992. “Anthropology, Law, and Transnational Processes.” Annual Review of
Anthropology 21:357–79.

Mody, Perveez. 2008. The Intimate State: Love-Marriage and the Law in Delhi. New Delhi and
Abingdon: Routledge.

Moore, Sally Falk. 1973. “Law and Social Change: The Semi-Autonomous Social Field as an
Appropriate Subject of Study.” Law and Society Review 7(4):719–46.

Moore, Sally Falk. 2015. “Customary Law in One Area of 20 th Century Africa: The Chagga of
Kilimanjaro in Tanzania.” Diogenes 60(3–4):166–76.

Mukhopadhyay, Anindita. 2006. Behind the Mask: The Cultural Definition of the Legal Subject in
Colonial Bengal (1715-1911). New Delhi: Oxford University Press.

Nader, Laura. 2002. The Life of the Law: Anthropological Projects. Berkeley, Los Angeles and London:
University of California Press.

Nayar, Mohit. 2016. “How Many Lawyers are Working in India?” Quora, June 27. Retrieved July 12,
2016 (https://www.quora.com/How-many-lawyers-are-working-in-India).

NDTV. 2009. “India has World’s Largest Backlog of Court Cases: PM.” NDTV, August 16. Retrieved
July 12, 2016 (http://www.ndtv.com/india-news/india-has-worlds-largest-backlog-of-court-
cases-pm-399857).

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 15

Noorani, A.G. 2002. Citizen’s Rights, Judges and State Accountability. New Delhi: Oxford University
Press.

Ramesh And Ors vs State Of Haryana. 2016. Supreme Court of India on November 22. Criminal
Appellate Jurisdiction, Criminal Appeal No. 2526 of 2014.

Randeria, Shalini. 2007a. “The State of Globalization: Legal Plurality, Overlapping Sovereignties
and Ambiguous Alliances between Civil Society and the Cunning State in India.” Theory, Culture
and Society 24(1):1–33.

Randeria, Shalini. 2007b. “De-politicization of Democracy and Judicialization of Politics.” Theory,

Culture and Society 24(4):38–44.

Rosen, Lawrence. 2006. Law as Culture: An Invitation. Princeton and Oxford: Princeton University
Press.

Sathe, Satyaranjan P. 2002. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New
Delhi: Oxford University Press.

Sen, Ronojoy. 2010. Articles of Faith: Religion, Secularism and the Indian Supreme Court. New Delhi:
Oxford University Press.

Sen, Sarbani. 2012. Public Interest Litigation in India: Implications for Law and Development. Kolkata:
Mahanirban Calcutta Research Group.

Sen, Sarbani. 2015. “The ‘Public Interest’ in India: Contestation and Confrontation before the
Supreme Court.” Diogenes 60(3–4):27–44.

Sezgin, Yüksel and Mirjam Künkler. 2014. “Regulation of ‘Religion’ and the ‘Religious’: The
Politics of Judicialization and Bureaucratization in India and Indonesia.” Comparative Studies in
Society and History 56(2):448–78. Doi:10.1017/S0010417514000103

Shapiro, Martin and Alec Stone Sweet, eds. 2002. On Law, Politics, and Judicialization. Oxford: Oxford
University Press.

Singha, Radhika. 1998. A Despotism of Law: Crime and Justice in Early Colonial India. New Delhi: Oxford
University Press.

Srinivas, M.N. 1964. The Study of Dispute. Bombay: Asia Publishing House.

Sundar, Nandini, ed. 2009. Legal Grounds: Natural Resources, Identity, and the Law in Jharkhand. New
Delhi: Oxford University Press.

Whittington, Keith E., R. Daniel Kelemen and Gregory A. Caldeira, eds. 2008. The Oxford Handbook
of Law and Politics. Oxford: Oxford University Press.

Yang, Anand A., ed. 1985. Crime and Criminality in British India. Tucson: University of Arizona Press.

NOTES
1. For instance, Handberg (1999), Shapiro and Stone Sweet (2002)—which includes a 1963 seminal
essay by Shapiro—,Commaille and Kaluszynski (2007), Whittington, Kelemen and Caldeira (2008),
Benda-Beckmann, Benda-Beckmann and Eckert (2009), Commaille, Dumoulin and Robert (2010),
Dressel (2012), Sezgin and Künkler (2014).
2. Also, for India, see Randeria (2007a, 2007b).

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 16

3. Also Fuller (1988), Galanter (1989), Bhargava (1998), Dhavan (2001), Sen (2010), Berti, Tarabout
and Voix (2016)—and Tarabout in the present issue. That courts in some countries may assume
the role of a kind of “theological authority” is not limited to India, see Comaroff (2009).
4. “Law is full of magic. It conjures a world of its own and seeks to capture the ‘real’ world in its
own image. Purporting to be a comprehensive statement on the relationships between persons,
things, places and events, ‘law’ orchestrates its mastery over its empire by a mixture of ideology,
ideas, rules, procedures, institutions and sanctions. ... The ideas of law take shape as ‘legal
concepts.’ Before we know it, our lives are taken over by concepts like ownership, possession,
enforceable promises (contracts), obligations, rights, wrongs, duties, trust and persons.’ (Dhavan
2003:149).
5. “The values that are tested, changed, and consolidated in the law are not necessarily or even
exclusively ‘legal values.’ They may be religious, aesthetic, or economic values” (Nader 2002:11).
For instance, see the study by Chang (2004) on China, showing that the very process of
questioning in a legal context takes on culture-specific forms and has culture-specific functions.
For a general review, see Merry 1992.
6. References to a reified “Indian culture” may also be present in Upper Courts’ rulings,
especially in cases concerning aspects of social or family relationships which are now condemned
by law.
7. For instance, court documents have been used to study how the body was perceived and how
emotions were expressed by witnesses testifying before tribunals during the Inquisition in the
thirteenth century; or to analyze the perception and the definition of incest in nineteenth-
century France; or even to document unknown sleeping habits of members of the French
working class in the eighteenth century—see the collection of studies in Albornoz Vasquez, Giuli
and Seriu (2009).
8. Historians working on South Asia have regularly used judicial archives as an entry point to
study social issues. See for instance Derrett (1968), Appadurai (1981), Yang (1985), Freitag (1991),
Dube (1996), Chandra (1998), Singha (1998), Lal (1999), Bailkin (2006), Mukhopadhyay (2006),
Kolsky (2010), Chatterjee (2011), De (2013).
9. This seems to be more largely the case in post-colonial societies, where, according to Benda-
Beckmann (1981:170) the “indigenous organization has already been changed by government
interference.” Benton (2002) has shown that the very development of colonial states (including
India) relied on pluralist views of the law: state-centered legal pluralism became the model of
colonial governance, heightening an artificial division between “modern” and “traditional”
spheres. See the discussion by Galanter (1972); also Halpérin (2010).
10. This collection of essays partly results from an international conference held in Paris in
January 2013, “Through the Lens of Law: Power and Society in India,” as part of a program
funded by the French “Agence Nationale de la Recherche” (ANR 08-GOUV-064) entitled Justice and
Governance in Contemporary India and South Asia (“Just-India,” see http://www.just-india.net).
Among the edited collections that have resulted from the program, see for instance Berti and
Bordia (2015), Berti and Tarabout (2015), Berti, Good and Tarabout (2015), Berti, Tarabout and
Voix (2016).
11. For instance, Galanter (1969), Deva (2005), Krishnan et al. (2014).
12. For instance, Baxi (1982), Menski (1998), Agnes (2001), Noorani (2002), Dhagamwar, (2006).
13. On Hinduism and law see, among others, Derrett (1957, 1968), Larson (2001), Menski (2003),
Holden (2008), Lubin, Davis and Krishnan (2010). For a combination of different approaches, see
Eberhard and Gupta (2005), Baird (2005); for a comparative historical perspective on “customary”
law and colonial states, see Benton (2002).
14. Basu 1999, 2015, Mody 2008, Sundar 2009, Baxi 2014, Mathur 2016.

South Asia Multidisciplinary Academic Journal, 17 | 2018

 Introduction. Through the Lens of the Law: Court Cases and Social Issues in I... 17

15. A 2010 report puts the number of lawyers at 1.2 million, with approximately 60,000 or 70,000
new law graduates joining the profession each year (Bar Council of India 2017). However, in
proportion to the population, the ratio is still four times less in India than in the United States.
16. “India has roughly 12 judges per million in the population, as compared to America, which
has 50 or 55 judges per million. And it is generally estimated that for large, developing countries,
you need roughly 60 judges per million, which means India has one-fifth the number of judges it
ought to have” (Gallo 2013).
17. The judgement proposes a typology of reasons that may cause witnesses to turn hostile.
18. See also Mody (2008:111–4). For an “ethnography of the state” through an analysis of
discourses on corruption, Gupta (1995).

ABSTRACTS
For anthropologists as well as for historians, law practices and their discursive productions
provide a way of studying interactions and decisions in a variety of domains of social and
political life—from social and family relationships to issues such as criminality, environmental
protection, natural resource management, religious practices, or human rights. The following
studies deal with such issues by using the “lens of the law” as a vantage point over society, giving
access to sometimes intimate situations otherwise difficult to document for an observer, as well
as a filter through which social issues have to be shaped when evolving into court cases. Thus
studying how law is used by people and how it impacts their lives is all the more important as,
despite delays, poor facilities, and widespread corruption, courts often represent the main if not
the only hope for many to redress their grievances. As a consequence the Courts are bustling
with an activity that testifies to the vital role they play in society as sites of power that affect
every aspect of life therein.

INDEX
Keywords: India, judicialization, law courts, judicial system, anthropology, history, political
science

AUTHORS
DANIELA BERTI
Center for Himalayan Studies

GILLES TARABOUT
Center Ethnology and Comparative Sociology

South Asia Multidisciplinary Academic Journal, 17 | 2018