ANR Programme 2009-2013
image of courtroom
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

1- Criminal Cases

Section 1: Criminal cases

This section will concern organized crime as well as what is categorized as criminal acts against underprivileged groups, such as women, scheduled castes and tribes, or former "criminal tribes" -as the Indian penal code has progressively enlarged the notion of “crime” so as to include a number of social discriminations. Cases will be studied trying to combine court observation, archivial research, and discussion with the various protagonist of the trial

One among the questions that will be investigated relates to what the Common law terminology calls "hostile witness". The disparity between legal legislation and its actual implementation may produce forms of resistance on the part of the population to the state's effort to implement legality. It often happens that the prosecutor's witnesses, who initially testify against the accused when the case is registered by the police, deny or strongly tone down their accusations once questioned by the judge. The problem posed by these "hostile witnesses" is an everyday situation in Indian Courts. It is not necessarily the consequence of political pressure or corruption (though it can well be the case), and often results from village or family dynamics which may interfere with the trial.

This section concerns Daniela Berti (coordinator), Karine Bates, Pratiksha Baxi, Devika Bordia, Zoé Headley, Livia Holden, Nicolas Jaoul, Arnaud Sauli, Alexandre Soucaille, Nandini Sundar, and Gérard Toffin.

Detailed projects

>> Daniela Berti

is studying trials at the District Court level in Himachal Pradesh, with the aim of analysing how two opposing versions of the facts develop during the trial; how the examination and cross-examination of the witnesses are handled; how statements are put into written form; how juridical proof is produced; and how lawyers defend their case during the ‘arguments’. The study will also investigate the social, economic or cultural dynamics which are behind the attitude that the protagonists of the case (witnesses, victim, accused, plaintiff) assume during the trial while interacting with the law professionals (judge, prosecutor, lawyers).This will allow for reflection on a wide range of concepts. – such as facts, crime, evidence, truth, verdict, punishment – to be found in all judicial systems.

>> Livia Holden

will conduct a micro- study of the legal procedures of local jurisdictions in central India, backed by a compilation of the secondary and primary sources of Hindu law. Through a qualitative case study based on ethnographic fieldwork, research will apprehend the wider themes of the access to justice, the relationship between punishment and expiation, and the interaction between state- and non-state law. The focus will be laid both on criminal cases (murder and dowry death) that undergo double proceedings before state and non-state jurisdictions, and on the public interest litigation that starts within a local context but is subsequently reformulated according to the parameters of official law.

>> Zoé Headley

will study processes and procedures of conflict resolution outside the realm of Indian Law, including caste courts and local mafia networks (kangaroo courts). Cases are brought before the courts in Tamil Nadu denouncing “unfair” and even “inhumane” judgements and treatments delivered by ‘caste courts’, thereby highlighting its pervasive hold on certain sections of local society. The rising number of these situations forced the Tamil Government to propose a new legislation banning these “courts”. This has led paradoxically to a new realm of activities of small-scale mafia networks. Overall, this project seeks a better understanding of the interplay of three different fields of conflict management, justice, customary law, and new styled caste kangaroo courts.

>> Nandini Sundar

will study how laws create regimes of truth by defining crime and criminals. She will explore how these notions are interpreted on the ground, in the everyday practice of lawyers, witnesses, judges and so on. The study will be based on a combination of court room ethnographies and case materials, and will rely on two types of cases in the city of Delhi. Firstly, she will look at ordinary criminal cases being tried in the lower courts and will focus on the social background of those involved, the attitudes of litigants, lawyers, court clerks, police, witnesses, and judges, towards the case and towards each other. Secondly, she will look at cases involving political crimes, which are being tried under special laws like the <em>Unlawful Activities Prevention Act</em>, <em>Arms Act</em>, or under provisions like <em>Waging War Against the State</em>. She will look at the difference, if any, in the way these cases are approached by lawyers and judges, and the extent to which the political environment and media coverage influences the decisions on these cases, compared to ordinary criminal cases.</p>

>> Pratiksha Baxi

will study the development of “compromise” in criminal trials of riot cases in Gujarat. There, a legal bureaucratic reckoning of public tranquillity is suggestive of a coercive harmony ideology of the state, which is exemplified at the level of trial courts through the category of compromise. In the aftermath of the 2002 Gujarat trials, survivors were routinely forced to compromise the case; hostile witnesses were produced through extra legal processes based on inducement, coercion and threats. The lower courts have been hostile to the survivors who want to testify now and lower court Judges insist that it is “NGOs” who “disrupt” the so-called peace brokered between the survivors and the perpetrator communities. This brokering of peace that functions in the name of compromise is an instance of enforcing “harmony”. The style of this form of compromise is dramatic in that the courts no longer maintain the façade of legality, and compromise is not a public secret.

>> Devika Bordia

seeks to examine practices of everyday local governance and law, focusing on the negotiations between local leaders, the police, bureaucrats, lawyers and magistrates that are otherwise characterized as corrupt practices and irregular procedures. Focusing on the Bhil “tribal” areas of Udaipur district, she will examine how the colonial as well as post-colonial state has relied on leaders of community-based institutions. Current practices at the district court, in particular, are characterized by out-of-court procedures, and lawyers defending murder cases rely on local leaders to hold meetings with the parties involved so that witnesses will change their testimony. This suggests that “formal” and “informal” legal systems become blurred in everyday practice, pointing to the limits of legal pluralism.

>> Arnaud Sauli and >> Alexandre Soucaille

will work together on how a colonial category, « criminal tribes », has been abrogated in independent India, but continues to mark these stigmatized groups in their access to justice.  how their former status still finds its way into police enquiries, or into the courts. It seems that trials of members of such “Denotified Tribes” (DNT) often call upon the ghost of colonial categorisation, drawing arguments from the idea of “repetition” (also a colonial discourse embodied in the <em>Habitual Offender Acts</em>) or relying on laws of exception (since 2001). Historical research will combine with the ethnography of current discriminations against DNTs in local relationships or in judicial proceedings, and of the recourse to the courts that DNTs may conversely decide to prefer as a form of resistance.

>> Gérard Toffin

will study an instance of official decriminalisation of what was previously associated with the category of crime, in that case abortion. Over the last two decades, the Nepalese civil code has adopted several laws in favour of women. G. Toffin intends to study the effects of these new juridical arrangements, in particular in relation to abortion rights (under specific conditions) which have recently been granted (2002). The issue of inheritance to married sisters on the paternal side, a very thorny question which contradicts the traditional rules, will also be studied. Research will be carried out in collaboration with Dr. Bhatta, professor of Law, and Anita Maharjan, lawyer (Kathmandu). It will cover two or three districts of Nepal.

>> Karine Bates

will realize an ethnography of trial hearings through a fieldwork in the Family Court and District Court of Pune, Maharashtra. Through participant observation, she will collect data on the interactions taking place between the various "actors" of the court room during cases related to domestic violence. Through these informal dialogues taking place within the formal setting of the tribunals, various meanings of violence, abuse and cruelty in matrimonial contexts will emerge, hence revealing various understanding of the state law. To grasp the way in which these conceptions are translated from daily experiences and emotions to "rational" discourses acceptable to the procedural format of the state legal system, the participant observations will also take place in lawyers' offices during the court cases preparation as well as in court compounds.

>> Nicolas Jaoul

will focus his study on a Dalit organisation in Kanpur, the Dalit Panthers. They have an office where they receive Dalits from the surrounding villages and slums and help them with their judicial problems. They have their own network of Dalit lawyers who are specialised in dealing with anti untouchability laws. This mediation has helped the organisation in establishing its popularity. Thanks to his ability to win recognition from the local administrative and judicial authorities, the leader is recognised as the main authority of the local Chamar community and is sometimes called upon to settle disputes.