Tribal Policy: Pulling Back from the Brink?

One of the most thorny, problematic and arguably also the most potentially radical and liberating - provisions of PESA is section 4 (d). It lays down that `every gram sabha shall be competent to safeguard and preserve the customary mode(s) of conflict resolution’. This terse but dense formulation envisages the establishment - or restoration - of alternate institutions for resolution of the civil and criminal disputes of rural people. It further seems to require that these institutions should be based on tradition and custom, and should derive both legitimacy and sustenance from the gram sabha.

The rationale of this provision is that the formal contemporary systems for resolving conflicts - the courts, the police, jails and statutory law - stand increasingly discredited in the countryside. They are seen to be heavily weighed against the poor, ridden by corruption, delays and mystification. They have substantially lost legitimacy as reliable institutions for ensuring cheap, quick, unbiased and transparent justice for rural people, especially those belonging to disadvantaged groups.

The PESA formulation opens significant windows of opportunity for tribal peoples to construct alternate community-based structures for delivery of justice. However, before these opportunities can be realised, a host of extremely difficult questions need resolution.

A literal interpretation of the PESA formulation seems to suggest that restoration of customary modes of conflict resolution in itself would ensure more reliable justice. However, any such uncritical faith in tradition and custom as intrinsically superior vehicles for justice delivery cannot be supported empirically. Untouchability and witch-hunting are both traditions, and the latter is particularly firmly grounded in many tribal areas and notorious for its use in suppressing female assertion.

The law somewhere also presumed the survival of `homogenous’, ‘egalitarian’ and `altruistic’ tribal communities, but tribal societies have undergone vast changes. Cultural transformation has followed the drastic mutation of their material conditions. As we have already seen, the egalitarian internal organisation of tribal societies has also in many cases been distorted, particularly in relation to women. Alcoholism and other social symptoms of the degradation and exploitation of tribal societies have resulted in the tribal women bearing nearly all the burdens of balancing the household economy. The breakdown of traditional control over consumption of alcohol has increased male irresponsibility, drained domestic resources and encouraged greater domestic violence. Ironically, women have become partners in their own oppression, as it is they who mainly manufacture illicit liquor. Although rape is still uncommon in tribal societies, domestic violence is rampant and the community has ceased to intervene, regarding this as a ‘personal matter’. Women are equally terrorised by witch hunting, because every woman is a potential witch who can be stoned to death. They have no right to property. They are also excluded from any traditional modes of conflict resolution, even when they are parties to the dispute. Tribal societies have also begun to practice untouchability, and oppress weaker tribal groups.

Panchayat literally means five persons sitting together to adjudicate, but panchayats have often performed this function as a bastion of male dominance, excluding women, young people, the poor and socially disadvantaged groups. For example, the Warli tribals traditionally resolve disputes by inviting the two parties to the dispute to nominate any two persons as panches to adjudicate. The four nominated persons in turn nominate a fifth panch. This seems an excellent mechanism, except for one critical rider, that traditionally only men can be nominated as panches, even where women are parties to a dispute. In the discussions this writer held in various Warli gram sabhas in the Thane district of Maharashtra, women consistently stated their preference for the formal systems of conflict resolution even when acutely conscious of the limitations of these systems, very probably in a reaction against the severe gender bias of traditional systems.

Our first problem is that whereas the need for alternate local community-based institutions for justice delivery is fully acknowledged, the extent to which these institutions must be rooted in tradition is unclear. The need to seek, unravel and understand traditional modes is also admitted; however, the yardstick of contemporary universal standards of justice and equity must also test these modes. There is need for far greater understanding, based on empirical research, about what are the principal traditional modes of justice adjudication in major tribal groups in Schedule V areas. Are these traditional systems accessible to all sections of the community? Can they deliver quicker, cheaper and more reliable justice, when compared to the formal judicial system? Answers to these questions must be framed with particular reference to women, dalits and other disadvantaged groups within tribal communities.

Would localised community-based institutions for justice delivery function in the best interests of the disadvantaged, in village communities that are often made complex by profound, bitter and ancient divisions of class, caste, gender and age? If such institutions are in fact established, what safeguards should be introduced to secure the interests of the relatively powerless within the community?

Another set of problems relates to the procedure for a rural collective to adjudicate. The language of PESA requires that the gram sabha be competent to safeguard the customary mode of dispute resolution. This seems to suggest firstly that detailed procedures would be laid down by the gram sabhas, drawing from tradition, and not spelled out in detail in the law itself. Whereas this interpretation has the merit of enabling local wisdom to flourish, definite broad safeguards are required to ensure conformity with universal principles of justice and to protect weaker groups.

The PESA formulation also suggests that the gram sabha as a collective would not necessarily adjudicate disputes. It would only lay down procedures, and monitor the proceedings. However, the establishment of local committees to adjudicate is fraught with dangers. The Madhya Pradesh Gram Nyayalaya Adhiniyam, 1996 for instance, provides for the constitution of Gram Nyayalayas, by the unanimous nomination of seven members by the Janapad (Block) Panchayat. Political nominees would pack a nominated body of the kind envisaged in the Madhya Pradesh Act, and a committee of political nominees would very likely be no more than an extension of the local power elite, but lacking the legitimacy of either tradition or of the rule of law. People disadvantaged by caste, class and gender, would be severely disabled in securing justice in such a situation.

Some of the other major issues on which the law must be unambiguous include the following:

On which kinds of issues should gram sabhas be empowered to adjudicate? Should their jurisdiction be voluntary or mandatory? If the two parties desire to access alternate institutions, which would prevail? What would be the procedures and powers to summon witnesses, secure justice and enforce decisions? What would be the powers, if any, of the gram sabha to award punishments?
There are also other issues related to the interface between the community-based and formal systems. Would their jurisdiction be concurrent or exclusive? Which agency/agencies would be bound to implement the decisions of the gram sabha? What powers would the gram sabha enjoy for the enforcement of its decisions? What would be the appeal mechanisms?

In summary, it is true that rural communities have faced monumental difficulties in securing justice in their interface with formal institutions for dispute adjudication and justice delivery. However, great care needs to be exercised replacing the established institutions with others less tested, even when these are intended to be more reliable vehicles for speedy and impartial justice, especially for disadvantaged sections of rural society.

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