Law and Social Transformation in India is a compilation of Mendelsohn’s publi-shed essays on the Indian legal system written over different points of time. These essays offer us important insights into how sociology of law emerged in India while archiving the transformation of the judiciary since early Independence. The book opens with an early but important essay, ‘The Pathology of the Indian Legal System’ (1981). This essay offers a powerful challenge to the colonial view, often repeated in the discourse on judicial reform today that Indians are litigious who overuse (or misuse) courts. Moving away from such viewpoints, Mendelsohn argues that agricultural land became the object of litigation during colonial rule and the early years of Independence. The regimes of taxation and administration of law produced an overwhelming amount of land litigation. Although after the 1820s, following the enactment of a series of laws, ‘land was made newly vulnerable to moneylenders’ (p. 22). The rent suit became the most common form of lawsuit in colonial courts. Rather than a calculated colonial policy to push land relationships in a specific direction, the consequence of the decision to prepare a ‘record of rights’ or a ‘register of titles of all the land in a region’ resulted in an explosion of land cases. This form of colonial governmentality led to a number of disputes where a ‘challenge to the record of rights was renewed with every fresh settlement’ (p. 25).
‘How Indian is Indian Law?’ (2007) unpacks a number of approaches to Indian law that mark the distinctiveness of Indian law. This essay challenges the legal fiction that state law is the sole source of legal authority. Citing examples from caste panchayats in Behror, dispute settlements among diamond traders in Mumbai, sweepers in Dharavi and the 19/20th century attempt to enforce customary law of Punjab in the Chief Court of Punjab, Mendelsohn argues that the ‘identification’ of legal authority is a matter of ‘empirical discovery’ rather than a given or normative category of analysis. Mendelsohn concludes that no other nation–state with the exception of Japan ‘possesses an official legal system so sophisticated as that of India and which is also composed of a civil society so marked by patterns of authority and dispute settlement constituted without reference to the state’ (p. 76).
In ‘The Transformation of Authority in Rural India’ (1993) Mendelsohn argues that M.N. Srinivas’s concept of dominant caste was ‘articulated at a specific historical moment’ when the very authority of the most powerful communities in rural India seemed to be at a decline. Mendelsohn argues that the de-linking of ‘land and authority … in village India’ reflects in the changing structure of authority now that resistance to caste dominance is far more resolute (pp. 83-5). Yet Mendelsohn cautions against assuming that ‘a transfer of authority from social formations outside the state to the institutions of the state’ (p. 107). Mendelsohn notes declining rates of litigation in rural India and the reduced presence of rural state courts, even as the authority of the caste panchayat decreases. In other words, courts have a diminished presence at the same time when the authority of the dominant castes decreases. Mendelsohn does not mean there is an absence of strong state presence in village India, rather his work is a plea to research the changing forms and practice of legal authority in rural India; and to take seriously the articulation of caste violence, specifically atrocity against the dalits.
‘The Question of the “Harijan Atrocity”’ (1998) is based on a book co-authored with Marika Vicziany entitled The Untouchables’ Subordination, Poverty and the State in Modern India. The chapter spans different spaces, temporalities, and events that articulate the changing nature of power and resistance over conflicts of caste, land, power, gender, family and dignity. The author traces the rise in dalit consciousness, assertions for dignity and everyday struggles against humiliation. His larger argument from a historical perspective is that ‘the mode of action in relation to disputed claims to agricultural land has shifted from the courts to politics. This is an enormous change for a modern legal system that been dominated by litigation over agricultural land since its inception some two centuries ago’ (p. xxv).
Mendelsohn’s fieldwork coincides with a shift in the litigation from the villages to the cities; and with the effects of globalization in the aftermath of the new policies of liberalization from early 1990s (p. xxvi). Over the next two chapters, we are told that ‘if litigation over agricultural land has declined, there has been a phenomenal rise in litigation over urban land’ (p. 171). Mendelsohn argues that the crisis of the Indian legal system is not new, however with newer forms of litigation the ‘institutional, professional and cultural underpinnings of the law have not changed’ (p. 173). Change, says Mendelsohn will not come from within the legal profession, rather it will happen as a ‘response to broader economic and social developments’ (p. 173).
In ‘From Colonial to Post Colonial Law in India’ (1997) Mendelsohn argues that ‘economic liberalization represents both an opportunity and a huge challenge to the legal profession. If liberalisation is to succeed to a high degree, the expanding economy will need to be supported by new and more important legal services’ (p. 176).
In ‘The Indian Legal Profession, The Courts and Globalisation’ (2006) our attention is directed to legal profession in urban India particularly Mumbai. The majority of litigation in Mumbai courts, says Mendel-sohn, follow urban property and particular disputes around rent control. Drawing analogies between land disputes then and rent control disputes now, Mendelsohn argues that both are the products of the intervention of state law in economic life. This picture of routine rent control litigation in the courts of Mumbai is contrasted with the emergence of the global firm. These firms now represent global practice of law, solicit foreign lawyers and operate in the imperatives of global capital. Here we find an account of the changing nature of the legal profession in Mumbai. Based on interviews with Zia Mody and descriptions of her highly successful firm, we are invited to enter the new world of legal professionalism that meets the demands of a globalizing economy. Mendelsohn optimistically argues that these firms represent the most ‘dynamic part of the Indian profession’(p. xxix).
The next two chapters follow the story of public interest litigation or what Upendra Baxi has called social action litigation. ‘Life and Struggles in the Stone Quarries of India’ (1991) is based on fieldwork done amongst stone quarry workers in Faridabad. He follows here the Bandhua Mukti Morcha Union of India and Others case, famously known as the Bonded Labourers case, decided in 1984. While the Supreme Court declared that these workers must be ‘liberated’ to their homes in Rajasthan, however the lack of alternate employment meant that some of these workers returned to the quarries. Mendelsohn’s collation of narratives of workers at the quarries leads him to argue that stunning jurisprudential victories must be accompanied with allocation of governmental resources for legal change to translate into social change.
‘The Supreme Court as the Most Trusted Public Institution in India’ (2000) reviews the juridical and social life of public interest litigation, Mendelsohn providing a narrative about the journey of public interest litigation hazards that of all institutions the Supreme Court has remained one of the most trusted public institutions in India, since it has played an important role in deepening democracy. ‘Law, Terror and the Indian Legal Order’ (2007) traces the history of the anti-terror legislation, while reading contemporary anti-terror laws in the context of the aftermath of the 9/11 ‘war on terror’. This reading is critical in its concern with the erosion of civil liberties in the face of authoritarianism.
This book offers several exciting insights especially since it identifies specific forms of colonial governmentality in relation to emergent forms of litigation and links it to the problem of court arrears. Further, it traces the genealogy of the colonial discourse on the litigious Indian as a way of deflecting the effects of colonial governmentality. Yet the category of the ‘vexatious’ litigant finds banal repetition in the discourses of judicial reform even today, making this reading of the Indian legal system a must read especially for sociologists, law academics, lawyers and law reformers.The book also allows us to note how contradictory pictures of law, politics and society are articulated simultaneously. For instance, Mendelsohn takes seriously narratives of trust that image the Indian legal system, yet the documents hurtful narratives of law’s betrayal. In other words, this book may also be read as an invitation to sociologically understand what the broken promise of justice means.
Pratiksha Baxi is Associate Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.