Unpopular Justice: Law and the Inexpediency of Culture in North India

TY - UNPB

T1 - Unpopular Justice

T2 - Law and the Inexpediency of Culture in North India

AU - Kapila, Kriti

PY - 2020/12/14

Y1 - 2020/12/14

N2 - This paper is prompted by the recent spate of violence in north India instigated by khap panchayats, or caste councils, and the judicial and public outrage over the resurgence of an older form of popular justice. Though the current challenge to state’s juridical authority bears an uncanny resemblance to a similar deadlock between caste-councils and state law witnessed in the same region nearly a hundred years ago, there are vital differences in the way distance from culture in law is accounted for by the colonial state and in postcolonial jurisprudence. In excavating the genealogy of the present impasse, the paper argues that at the heart of this deadlock is the unresolved nature of the culture question in postcolonial India, and its unanticipated and unrecognised effects. A counterfactual reading of two landmark pieces of legislation, the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956 goes beyond discovering the possibilities scripted by the new laws. The two Acts entail a comprehensive rewriting of the grammar of relationality in north India, and in doing so place new constraints on culture particularly in the domain of kinship. The conflicts they give rise to, such as the recent khap violence, cannot simply be understood by transposing insights from analogous conflicts in Euro-American jurisprudence because of the unique nature of the public aspirations of law in India. The paper strongly argues for a shift in the language within which the relationship between law and culture is cast in order to gain any new purchase on one of the oldest debates in anthropology.

AB - This paper is prompted by the recent spate of violence in north India instigated by khap panchayats, or caste councils, and the judicial and public outrage over the resurgence of an older form of popular justice. Though the current challenge to state’s juridical authority bears an uncanny resemblance to a similar deadlock between caste-councils and state law witnessed in the same region nearly a hundred years ago, there are vital differences in the way distance from culture in law is accounted for by the colonial state and in postcolonial jurisprudence. In excavating the genealogy of the present impasse, the paper argues that at the heart of this deadlock is the unresolved nature of the culture question in postcolonial India, and its unanticipated and unrecognised effects. A counterfactual reading of two landmark pieces of legislation, the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956 goes beyond discovering the possibilities scripted by the new laws. The two Acts entail a comprehensive rewriting of the grammar of relationality in north India, and in doing so place new constraints on culture particularly in the domain of kinship. The conflicts they give rise to, such as the recent khap violence, cannot simply be understood by transposing insights from analogous conflicts in Euro-American jurisprudence because of the unique nature of the public aspirations of law in India. The paper strongly argues for a shift in the language within which the relationship between law and culture is cast in order to gain any new purchase on one of the oldest debates in anthropology.

U2 - 10.18742/pub01-040

DO - 10.18742/pub01-040

M3 - Working paper

SP - 1

EP - 40

BT - Unpopular Justice

PB - King's College London

CY - London

ER -