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Law and the Poor in Rural India: the Rp Ospects for Legal Aid Richard K American University International Law Review Volume 5 | Issue 3 Article 1 1990 Law and the Poor in Rural India: The rP ospects for Legal Aid Richard K. Gordon Jr. Jonathan M. Lindsay Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Gordon, Jr., Richard K. and Jonathan M. Lindsay. "Law and the Poor in Rural India: The rP ospects for Legal Aid." American University International Law Review 5, no. 3 (1990): 655-772. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. ARTICLES LAW AND THE POOR IN RURAL INDIA: THE PROSPECTS FOR LEGAL AID Richard K. Gordon, Jr.* and Jonathan M. Lindsay** TABLE OF CONTENTS I. INTRODUCTION ............................... 656 A. Critiques of Legal Aid and Law and Development 658 B. An Approach to Evaluatingthe Prospectsfor Legal Aid: An Introduction to the Indian Case ........ 661 II. THE STRUCTURES OF DOMINANCE IN RURAL IN D IA ......................................... 664 A. Caste and the Religious, Social and Economic Or- dering of Village Life ........................ 665 1. Introduction to varna and jati .............. 665 2. Varna and jati as religious law ............ 668 3. Varna and jati as social referents .......... 673 4. Jati and economic relations ................ 678 a. Jati and access to land ............... 678 * B.A. 1978 Yale College; J.D. 1984 Harvard Law School. Consultant, Interna- tional Tax Program, Harvard Law School, Cambridge, Massachusetts. ** B.A. 1979 Yale College; J.D. 1984 Boalt Hall. Associate, Goulston & Storrs, Boston, Massachusetts. Support for fieldwork came from the Committee on General Scholarships and the Sheldon Fund of Harvard University, and from the Harvard Law School. The authors wish to thank the American Institute of Indian Studies, the Indian Law Institute, for- mer Chief Justice P.N. Bhagwati and the Supreme Court of India, and the School of Oriental and African Studies for their institutional support. We also wish to thank Professors V.S. Rekhi, Marc Galanter, John Mansfield, David Smith, Lance Liebman, Gary Bellow, Kenneth Phillips, Mr. Zubair Khan, Mr. Michael Macy, Ms. Betsy Burns, and Jane L. Taylor for their invaluable assistance and comments on earlier versions. We especially thank those villagers in western Uttar Pradesh, India who so kindly tolerated our presence and our questions, and who made us feel so welcome. AM. U.J. INT'L L. & POL'Y [VOL. 5:655 b. Jati and labor ....................... 681 B. Shifts and Stability in the Hierarchy: Sources of Change and Sources of Reinforcement in the Struc- tures of Rural Dominance .................... 684 1. Jati and religion: continuity and change ..... 684 a. Reform and perpetuationfrom below ... 685 b. Reform and perpetuationfrom above ... 690 c. Jati and religion: society and change .... 693 2. Westernization and secularization: continuity and change .............................. 695 a. New rights and politics ............... 695 i) Democracy, rights and benefits .... 695 ii) Village politics and factionalism . 697 b. Courts, police and the new rights ....... 709 i) The modern formal judicial struc- ture ........................... 709 ii) The Indian legal system in village life ............................ 7 17 c. Economic change ..................... 732 i) Changes within the village ........ 732 ii) Sources of government assistance.. 740 III. LAW AND CHANGE ........................... 746 A. Status Quo, Sanskritization and Westernization.. 746 B. The Legal System and the Have-Nots in Rural In- d ia .. ....... ...... ......... ........ ..... ... 7 50 1. The current state of public interest litigation. 756 2. The current state of legal aid .............. 766 3. A proposalfor rural legal aid ............. 769 I. INTRODUCTION Movements come and go, in society at large no less than in the acad- emy. Theories are refined; they inspire action, engender criticism, and secure successes and failures. Modern programs for social intervention in the contemporary United States, particularly those designed to alle- viate poverty or to secure equal treatment for unpopular minorities (the "have-nots"), have lately fallen on harder times. An obvious sign of this trend is the federal government's curtailment of financial support. 1 Recent signs from the Supreme Court also indicate a major withdrawal 1. See PERSPECTIVES ON THE REAGAN YEARS (J. Palmer ed. 1987) (providing an overview of the reduction in government spending). 1990] LEGAL AID IN INDIA from past judicial activism in favor of the have-nots.' Criticism of pro- grams of social intervention, however, has come not only from con- servative politicians, but also from both the left and right of the schol- arly community. A crisis of confidence has evolved in the government's ability to help engineer a better society. 3 The subject of this article involves two such movements: free legal aid (and related public interest litigation)4 and law and development (particularly the application of Western legal experience to the study of developing countries). Both movements have suffered intense criticism. Nevertheless, a new field has emerged-free legal aid in developing countries-which somewhat surprisingly has attracted support from scholars, governments, lawyers, and international institutions.' As with other movements, legal aid in developing countries has un- dergone theoretical refinement. It has engendered action, criticism, some successes, and many failures. This is not to say that criticisms of 2. See, e.g., City of Richmond v. Croson, 109 S. Ct. 706 (1989) (noting the govern- ment's strict standards of demonstrated necessity when government uses race to dis- tribute burdens and benefits); Wards Cove Packing Co. v. Antonio, 109 S. Ct. 2115 (1989) (shifting the burden of proof in setting out discrimination claims to the plain- tiffs); Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989) (holding that racial harassment is not actionable under 42 U.S.C. § 1981); Martin v. Wilks, 108 S. Ct. 2843 (1988) (allowing white workers to challenge previous affirmative action settlements). 3. For conservative critiques, see, e.g., C. MURRAY, LOSING GROUND (1984) (argu- ing in part that welfare is empirically ineffective because it creates disincentives to self- improvement); M. NOVAK, THE NEW CONSENSUS ON FAMILY AND WELFARE: A CO.t- MUNITY OF SELF-RELIANCE (1987) (arguing that culture is the primary determinant of success). For an example of criticism from the left, see Simon, Rights and Redistribu- tion in the Welfare System, 38 STAN. L. REV. 1431 (1986) (offering an example of criticism from the left). Simon argues that welfare creates an illusion of redistribution without actual improvement in the life of the poor, thereby defusing the impulse for real change. Id. 4. These two forms of legal involvement representing special vulnerables are distin- guishable. Public interest litigation is more often political and ideological than is legal aid for the indigent and can serve as an adjunct to other forms of political mobilization. Legal aid is primarily associated with the vindication of individual rights and supported by state aid. Some public interest litigation, however, particularily regarding the envi- ronment and land use, is of interest to the middle class more than others. Both, how- ever, seek to empower special vulnerables. Moreover, public interest litigation and legal aid depend on one another. Test cases need to extend and clarify rights, and individual cases ensure enforcement. 5. Professors Marc Galanter and David Trubek have criticized both legal aid in the United States and the law and development movement. Both, however, have argued for the creation of free legal aid programs in developing countries. Galanter, The Duty Not to Deliver Legal Services, 30 MIANI L. REV. 1 (1976); Trubek & Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Stud- ies in the United States, 1974 U. Wis. L. REV. 1062; M. Galanter, New Patterns of Legal Services in India (1982) (unpublished manuscript on file with the authors); Trubek, Unequal Protection:Thoughts on Legal Services, Social Welfare. and Income Distribution in Latin America, 13 TEX. INT'L L.J. 243 (1978). AM. U.J. INT'L L. & POL'Y [VOL. 5:655 both left and right have been so devastating as to invalidate these pro- grams for social intervention. Instead, many argue for program im- provement and not for elimination. There exists, however, some profound criticisms of public interest litigation, legal aid, and law and development. A. CRITIQUES OF LEGAL AID AND LAW AND DEVELOPMENT Criticisms of the modern legal aid movement range from those of specific aspects of program implementation to those of the theoretical basis of the Western legal model. Similar issues are raised in the evalu- ation of the law and development movement. Political conservatives criticize legal aid on many levels and propose the curtailment or elimination of public funding of legal aid activities. They argue that the legal aid is too expensive, that the private bar can meet the genuine need for individual legal representation among the poor,
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