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Pragun Goyel

I. Introduction

The anthropology of law is an important section of modern legal pluralism developed in consonance with legal history and philosophy.[1] In Jurisprudential analysis, it seeks to find the discernment between the complete law and the law.[2] It aims to find the complete law using the premise that it does not require any formal validation to be vouchsafed in the legal-theoretical framework[3]. Instead, it is the recognition of the underlying internal normative orders using legal history and philosophy which makes the complete law.

This paper does not re-agitate this fundamental assumption or the mechanics of what constitutes the complete law but identifies the normative orders beneath the Indian Evidence Act (IEA) using this anthropological approach to understand its completeness. It further seeks to argue whether the identified normative orders beneath the Act can be said to fit within the modern legal pluralistic notions of Jurisprudence. To elucidate, the aim is not to understand the different non-legal ways the IEA was drafted but to answer what constitutes the complete law for it.

The analysis in this article is split into three parts, each of which marks trends progressing in a specific direction, buttressed by specific incidents and arguments. The first part covers a broad overview of the anthropology of law and anthropological deconstruction. The second describes legal pluralism and traces the normative orders beneath IEA using anthropological deconstruction in two aspects-

a) Interaction between Imperial Serology and Native Mendacity

b) System of Oaths

The third studies these normative orders using the lens of modern pluralistic notions and tries to analyze how these orders go on to complete the IEA.

II. Anthropological Deconstruction

At the outset, Sarah Engle Merri’s prime observation that anthropological deconstruction of law makes us stand amid social life is much more pertinent here.[4] She conceptualized it as a way to look at the underlying nuances which begot the statute at a particular time frame. Joseph Raz also supplemented it by saying that a statute is not a discrete unit but a thought where various forms interact or influence one another.[5] He defined it as a conception originating from a social source.[6] Though his main objective was to define law as an authoritative conception, his idea of social source subtly hints at anthropological deconstruction.[7]

Anthropological deconstruction leads to new normative forms which lie beneath the statute. In the context of IEA, it is hypothesized that these forms include the constitutive sections of modern legal pluralism which are multi-centered fields dealing with the convergence of colonial and non-colonial norms.[8] These fields are the normative spaces in which the State and non-State norms interacted. In our daily lives, we find this interaction in a myriad of ways. The protest of farmers, students etc. before the Government can be categorized as a multi-centered field where both parties converge and interact. Farmers, students etc. can be said to represent the non-State normative orders and the Government as the State order within a multi-centered field comprising the whole Indian population.

But in the IEA, the story of interaction is more sophisticated. During colonial times, the normative State order interacted with the non-State normative orders of the native Indians which ultimately gave rise to the present statute. These social fields had internal characteristics which interacted with colonial State regulations and assumed the shape of a legally pluralistic identity.[9] This unique legal pluralism, as expounded by Denis Galligan, coexisted and intersected[10] in the new spaces of normativity. To be particular, the story of the Imperial Serology and the system of Oaths and their conflict with the native population is the form of legal pluralism at the core of IEA[11] and the theme of the present study.

III. Legal Pluralism and Normative Orders

It is apposite to have a Jurisprudential understanding of legal pluralism to understand the theme holistically. Legal pluralism is about tracing the plural legal constellations in the social setup.[12] Traditional jurists narrowed the scope of legal constellations to only conventional conceptions of law (e.g., penal statutes, bye-laws of a corporation etc.). They did not include the conceptions of which the validity of a social formation or act was asserted or denied.[13] Modern jurists turned the tables by including them by incorporating the non-State normative orders within legal pluralism. It primarily involved non-State actors rejecting the State system’s ideological and legal foundation in a largely nonviolent manner.[14]

Using anthropological deconstruction, we find the IEA displaying this unique pluralistic tendency in two forms:

a) Introduction of Imperial Serology to counter Native mendacity;

b) System of Oaths.

a) Imperial Serology and Native mendacity

The colonial notion of ‘native mendacity’ portrayed Indians as unreliable, forgers and perjurers.[15] India was characterized as a subcontinent teeming with perjurers, forgeries and professional witnesses who did not value the truth.[16] It was believed that the judge’s job was not adjudication, but the identification of false evidence.[17] To unleash the truth, the colonial administrators adopted various forensic methods, of which Imperial Serology was one. Based on this, it can also be said that the medical evidence in India came into existence as a response to the prevalent practices rather than as a legal requirement of the time.[18]

The prevalent practice was punitive self-harm[19] in which the natives used to hurt themselves or their relatives (often kill) to get the adversary punished using the punitive powers of the colonial law. The natives used to frame the opponent for murder by planting animal blood on the dead body to deceive the investigators. To grasp this better, an askance over a 1916 Nadar-Naicker feud[20] (South Indian caste communities) is required-

The Naickers wanted to build a canopy in front of the temple. The Nadars objected to this as it would interfere with their procession outside the temple. They had to carry palanquins in front of the temple. A magisterial inquiry was held to resolve the dispute but the Nadars remained unsatisfied. They decided to aggravate the dispute by framing the Naickers for murder. Because the Nadars were resolved to kill one of their own and pin the crime on the Naickers, they chose the mistress of one of their members as the victim. This poor woman was murdered by beatings and sheep's blood was then spilt on the surrounding ground with her body dumped at the temple. A formal accusation was drawn up against the Naickers for murder. This series of incidents might have led to the unfortunate Naicker being found guilty of murder. However, colonial authorities examined the case's bloodstains using a novel forensic technique of Serology called precipitin testing.

The act of killing the mistress and pouring sheep blood to distract the investigators can be termed as a mendacious notion of punitive self-harm. To counter this native mendacity, the colonists brought the concept of Imperial Serology into India. Although serology appeared less frequently in the criminal trials of Britain in the early twentieth century, it lived a long life in British India.[21] It was so because it satisfied the colonial concern of detecting fabricated evidence in cases involving South Asians.[22] When animal blood was planted to divert the path of justice, the Imperial Serologist could spot the trick using precipitin testing.[23] This testing helped to identify the source of the blood, which the colonists were desperate to find. The test discerned animal blood from human blood using antigens etc., which ultimately became a weapon of colonists to destroy the mendacious means of locals. This precipitin testing allows us to analyze the competition between the colonial order and the native notions of the collective identity of the locals[24] within pluralism.

b) System of Oaths

The system of Oaths also represents a direct clash between two normative values.[25] The colonial State through its normative order, tried to restructure the Indian system of oaths to ensure truthful testimony of the witnesses.[26] In English legal tradition, an oath to a witness was administered by swearing on The Bible in the hypothetical presence of God.[27] On the other hand, the system of oaths in India was not uniform. Different practices existed for Hindu witnesses and Muslim witnesses.[28] Hindu witnesses were administered oaths by Brahmin priests with the sacred tulsi (basil) leaves while holding a copper vessel containing water from the Ganges. Muslim witnesses used to swear on the Koran in the presence of a Mohammedan priest.[29]

These myriad ways were bound to produce a clash between the English and the Indian normative systems. This is conspicuous in the case of Omychand vs Barker (1744)[30] involving an English East India Company servant (Barker) and an Indian money lender (Omychand). In this case, two Hindu witnesses were sworn by a Brahmin priest. The colonial authorities sharply objected to the Indian way of oaths by arguing that an alien infidel (Indian) could never be a witness as per British legal standards.

The conflict became more apparent when the colonial authorities tried to restructure the Indian system. Former Governor General W.B. Bayley advocated for a complete replacement of the Indian system of oaths with a uniform system including penal sanctions.[31] In response, many Hindu witnesses started avoiding the Company Courts altogether. Bipin Chandra Pal observed that the Indians became apprehensive about the pitfalls of the British system of oaths and rejected the Company Courts for fear of sacrilege implications.[32]

IV. Analysis

The aforementioned tendencies between the State normative order and a non-State normative order found under anthropological deconstruction pose a preliminary question of whether they can be characterized as law in the first place to fit in legal pluralism. Upendra Baxi tried to analyze this, though sociologically, by delving incidentally into Sarah Engle Merri’s social life notion and Raz’s social source construct. He concluded that the non-State normative orders and their clash with the State normative order can be characterized as a fugitive law as they play hide and seek with the State law.[33] Though he characterized its nature of law using a metaphor, it is discernable that his argument was to treat it as law by basing it on Merri’s and Raz’s notions.[34] This resolves the first step that it can be characterized as law but again leads to the moot jurisprudential question of whether this law can be said to fit within the modern legal pluralistic notions of jurisprudence.

K. von Benda-Beckmann hypothesizes that these normative orders do help us trace the plural legal constellations in a social context.[35] He analyzed it by testing various laws in Indonesia, the Netherlands etc. on the anvil of modern legal pluralism and concurred with the argument of legal pluralism as an indication of various normative conceptions through which a particular social group authoritatively asserts social formation in society.[36] This can be linked to the IEA because the State and non-State normative orders tried to assert their respective goals to neutralize each other. Their approach was to check-mate each other and create a distinct legality.[37] Turner and Beyer also characterized it formally as competitive legal pluralism in which local actors operated in parallel legal orders in contrast to the State.[38] Though they did not try to subvert the State but created their own legality. Whether the word ‘competitive’ used by Turner and Beyer and ‘fugitive’ used by Baxi are similar is an open-ended thought with no direct answers. But some jurists claim that there is a prima facie link between all these theories[39] as their substratum is similar.

When these normative orders interact, formal legal rules in the form of statutes come into the picture.[40] The rules that emerge from competition or fugitiveness further satisfy Fukuyama’s argument that law develops due to competition between legal orders.[41] The statute is a reflection of the competition of orders in a social context. Whether it applies to all statutes or some is an aspect that he failed to clear but it fits perfectly in IEA.

Julia Eckert’s similar argument helps us to apply this theory but in a nuanced way. Eckert adopts the same line of argument of modern legal pluralism but adds the role of religion and gender dynamics in it.[42] She contends that order becomes a normative order only when religion and gender have a role to play in it. Though this argument has not been received well by various jurists[43], it is fulfilled in the IEA also. Looking at the two instances carefully, we find religion and gender play an immense role. In the punitive self-harm cases, most of the time it was a helpless female, widow, old lady etc. who was killed or sacrificed.[44] Most of the time meek females were chosen as bait in the clash between the normative orders. Religion also finds its place in the incidents of Oaths in India. The British tried to introduce a neutral and uniform system of oaths but Hindu orthodox witnesses challenged this on the grounds of religious practices. They feared they would lose their soul and suffer in hell if there were the same oath practices for Hindus and non-Hindus.[45]

This linking of all arguments depicts a complex underlying issue but ultimately furthers the goal of modern legal pluralism. In Turner’s words, it is not always the conventional law which is the focus of legal pluralism. The conventional notion of legal pluralism consisting of institutionalized law has considerably diluted with the advent of new scholarship.[46] The new scholarship aims to understand the deeper structural issues beneath the conflicting normative orders within the pluralistic notion of legal pluralism to ultimately find the complete law.

The two aforementioned instances sufficiently prove the hypothesis of a conflict between the two normative orders beneath the IEA making it a complete law jurisprudentially. Thus, the anthropological deconstruction helped us to understand the true notion of a complete law to adequately study the modern notion of legal pluralism.

V. Conclusion

The anthropological deconstruction of IEA shows that State was not a passive onlooker but a constant player in the multiple normative orders. The IEA confines in itself some structural issues of modern legal pluralism that depict complex legal configurations in which incommensurable legal systems overlapped in time and space. The statute reflects a desire to stabilize the truth about India and Indians of the British administrators. The contributions of Turner, Beyer, K. von Benda-Beckmann and Julia Eckert further help us to understand the underlying notions beneath the Act and welcome the modern notion of legal pluralism.

[The author is a 3rd year BA LLB student in NLU, Delhi.]

[1] Benda-Beckmann, ‘Legal pluralism, social theory, and the state’ (2018) 50(3) The Journal of Legal Pluralism and Unofficial Law 274. [2] Gunn, ‘Jeremy Bentham and the Public Interest’ (1968) 1(4) Canadian Journal of Political Science 413. [3] Rebecca R, ‘Fieldwork in the Anthropology of Law’ (1994) 117 Political and Legal Anthropology Review 113. [4] Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869. [5] Raz, ‘Legal principles and the limits of the law’ (1971) 81Yale Law Journal 823. [6] Ibid. [7] Raz, ‘The problem of authority: Revisiting the service conception’ (2005) 90 Minn. L. Rev. 1003. [8] Edward Cohen, ‘Constructing Power through Law: Private Law Pluralism and Harmonization in the Global Political Economy’ (2008) 15 Review of International Political Economy 770. [9] Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973) 7 Law & Society Review 719. [10] Denis Galligan, ‘The Sovereignty Deficit of Modern Constitutions’ (2013) 33 Oxford Journal of Legal Studies 703. [11] Beckmann, ‘Introduction to Stategraphy: Toward a Relational Anthropology of the State’ (2014) 58 Social Analysis: The International Journal of Social and Cultural Practice 19. [12] Von Benda-Beckmann, ‘The dynamics of change and continuity in plural legal orders’ (2006) 38 The Journal of Legal Pluralism and Unofficial Law 44. [13] Gordon Woodman ‘Legal Pluralism and the Search for Justice’ (1996) 40 Journal of African Law 152. [14] Helen, ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?’ (2013) 33 Oxford Journal of Legal Studies 675. [15] Vinay Lal, ‘Everyday crime, native mendacity and the cultural psychology of justice in colonial India’ (1999) Studies in History 145. [16] Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in British India’ (2005) 23 Law and History Review 631. [17] Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton University Press, 1993) 268. [18] Jordanna Bailkin, ‘The Boot and the Spleen: When Was Murder Possible in British India?’ (2006) 48 Comparative Studies in Society and History 462. [19] Heydon, ‘The Origins of the Indian Evidence Act’ (2010) 10 Oxford University Commonwealth Law Journal 76. [20] Kalpagam, ‘Secularism, Religiosity and Popular Culture: Chennai's Roadside Temples’ (2006) Economic and Political Weekly 4600. [21] Ahmad, ‘Modernisation Of Law Of Evidence During Colonial India’ (2014) 75 Proceedings of the Indian History Congress 511. [22] Tanya Agathocleous, ‘Criticism on Trial: Colonizing Affect in the Late-Victorian Empire’ (2018) 60 Victorian Studies 434. [23] Anthony Pearsall, ‘DNA Printing: The Unexamined ‘Witness’ in Criminal Trials’ (1989) 77 California Law Review 665. [24] Jonathan Koehler, ‘Error and Exaggeration in The Presentation of DNA Evidence at Trial’ (1993) 34 Jurimetrics, 21. [25] Thomas Raeburn, ‘Oaths in Judicial Proceedings and Their Effect upon the Competency of Witnesses’ (1903) 51 The American Law Register (1898-1907) 373. [26] F. Ashe Lincoln, ‘The Non-Christian Oath in English Law’ (1945) 16 Transactions (Jewish Historical Society of England) 73. [27] Baillie, Digest of Moohummudan Law on the Subjects to which it is Usually Applied by British Courts of Justice in India (Smith, Elder & Company, 1875). [28] J. Oldham, ‘Truth-Telling in the Eighteenth-Cerium English Courtroom’ (1994) 12 Law and History Review 121. [29] Schwikkard, ‘The oath: ritual and rationality’ (2019) 32 South African Journal of Criminal Justice (2019) 357. [30] Nameirakpam, ‘Legacy and Comparative Analysis of the Best Evidence Principle’ (2020) 3 Int'l Jl Mgmt. & Human 1918. [31] Richard S., ‘Religion and the Law: The Secularization of Testimonial Procedures’ (1983) 44 Sociological Analysis, 53. [32] Lipski, Alexander, ‘Bipin Chandra Pal and Reform Hinduism’ (1971) 11 History of Religions 220. [33] Upendra Baxi, ‘Postcolonial Legality: A Postscript from India’ (2012) 45 Law and Politics in Africa, Asia and Latin 178. [34] Ibid. [35] Benda-Beckmann (n 1). [36] Locher, ‘Land grabbing, investment principles and plural legal orders of land use’ (2012) 44 The Journal of Legal Pluralism and Unofficial Law 31. [37] Vinay (n 15). [38] Turner, ‘Legal pluralism, state sovereignty, and citizenship’ (2011) 7(4) Democracy and Security 317-337. [39] Sharafi, ‘Justice in many rooms since Galanter: de-romanticizing legal pluralism through the cultural defense’ (2008) 71 Law & Contemporary Problems 139. [40] Geoffrey, Contending Orders: Legal Pluralism and the Rule of Law (Oxford University Press, 2022). [41] ibid. [42]Eckert, ’From subjects to citizens: legalism from below and the homogenisation of the legal sphere’ (2006) 38 The Journal of Legal Pluralism and Unofficial Law 75. [43] Eckert, ‘Beyond Agatha Christie: Relationality and critique in anthropological theory’ (2016) 16 Anthropological Theory 241-248. [44]Mallampalli, ‘Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness’ (2010) 28 Law and History Review 1065. [45] Chandavarkar, Rajnayaran, History, culture and the Indian city (Cambridge University Press, 2009) 29. [46] Gordon (n 12).

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