(2004) JLP 50: 29-60
The little discussed forms of legal pluralism that emerge within the effective administration of justice and entitlements by state and non-state agencies have long determined the operative legal order of (urban) India. They are considered here in relation to the ‘selective state’, characterised by the formal and informal devolution of judicial competences of the state to alternative organisations. The merger of devolution and appropriation gives rise to new forms of legal pluralism, illustrated in Mumbai by the Shiv Sena, a regional political party of the Hindu Right.
The Shiv Sena has established local party offices, the Shakhas, in every part of Mumbai as well as in most towns and villages of the state of Maharashtra. The Shakhas offer numerous local services, performing distributive and productive tasks which involve the organisation of allocation. The Shiv Sena also through the Shakhas explicitly takes on regulatory functions in many matters, most clearly in their administration of local disputes. An informal system of ‘courts’ within the Shakhas deals with disputes relating to everyday living in the city, including civil as well as criminal matters, and often also administrative regulation. Judgments are swiftly enforced, by violence if necessary. Rulings are said to be guided by ‘common sense’, this notion involving implicitly the Shiv Sena’s notions of the proper order, but being also intricately linked to local social relations. The Shiv Sena’s courts are justified on grounds of accessibility and efficiency, supporting the party’s general claim to fulfil state tasks better than the state itself. However, the operative legal order thus established is not hegemonic. It is constantly open to adaptations and changes that result from plural pressures and the competitive normative offers of various actors in the field of adjudication, and thus sways between phases of monopolisation and dominance and phases of pluralisation and adaptation. In the daily practice of the Shiv Sena issues such as those of women’s rights are often dealt with in contradictory ways, differing from one Shakha to the other, as well as depending on the specific local constellation and demands.
The Shiv Sena has achieved a relatively high degree of institutional incorporation into state modes of governance. Its interpretations and enactments of law are (re-) introduced into the practices of state agencies, and its institutional integration with some state agencies is one of various degrees of cooperation and complementarity, and thus of mutual interdependence. The case of the Shiv Sena suggests a question as to the interaction between state and non-state legal orders. In studies of legal pluralism, while non-state legal orders are said to be semi-autonomous, state law is often treated as autonomous, as shaping but not as being shaped. In Mumbai state law is constitutive of the rules of the game, but seems also to be fundamentally transformed by the productions of legal order in the interactions of various actors involved in the administration of law and order, resulting in what is a relatively integrated operative legal order. The case sheds light on the complex matters of the use and transformation of law and the precariousness of power relations. It suggests that in India the emergence of the dominance of local governance by organisations like the Shiv Sena, ensues from a merger of cunning devolution by the state and forceful appropriation by local organisations.